#### BRYAN BURROUGHS *vs.*DANIEL McNEILL.

Where a plaintiff can hare as effectual and complete a remedy in a Court of Law as that for which he invokes the aid of a Court of Equity— a remedy, direct, certain and adequate — the defendant may insist that this remedy shall be sought for in the ordinary tribunal. But, this objection to the exercise of jurisdiction ought to be taken in due order and apt time; for, otherwise, if it be one which the party may waive, it will be deemed to have been waived, by failure to bring it forward to the notice of the Court *in*limine... Where the objection has not only not been taken in the pleadings, but. the defendant has expressly submitted to the jurisdiction of the court, by praying of it to decide on. the question of his liability, the objection must be regarded as one not of strict right, but addressed to the sound discretion of the Court.

Upon an agreement for an indemnity, the plaintiff has a right, without waiting for actual loss, to call on the defendant, in a Court of Equity to indemnify him against impending injury, and, to that extent, enforce the specific execution of the agreement between them. But, before an actual loss sustained, the plaintiff can maintain no action at law upon the agreement.

Where a bond of indemnity is in the- hands of the defendant, the plain, tiff has a right to go into a Court of Equity for an exhibition of it, arid for such relief there as, upon its exhibition, may be deemed just; and this without any previous demand of the instrument. The want of such demand may affect the costs, but does not *per se*oust the court of the right to decree its exhibition.

Where an agreement was made between an executor and D. M., thatthe latter should take possession of certain slaves belonging to the testa, tor’s estate, and keep them until the executor should be called upon, for them and their hires by the person entitled thereto,'and should indemnify the executor from all loss on account thereof; and the executor stipulated, that if so saved harmless, he would not, as executor or otherwise, have any further claim to said slaves, and moreover relin. quish to D. M. all the right which he had, as executor, to them, *it was*■ *held,*that the commissions allowed to the executor in his account with the parsons entitled, for collecting the hires of the slaves while in the possession of D. M., belonged to the latter; but that he was not entitled to the commissions allowed the executor for selling said slaves as commissioner under a decree of Court.

The plaintiff, Bryan Burroughs, filed his bill against the defendant, Daniel McNeil, in the Superior Court of Equity for the county of Moore, on the 1st of September, 1835. The bill set forth in substance that the plaintiff was the executor of one Joseph Duckworth, who, by his last will, had be* *298certain negroes to his wife for life, but had made no effectual disposition of the residuary interest therein after her death — that Mrs. Duckworth died in the year 1829 — and the next 0f ¡fio 0f {¡10 plaintiff’s testator resided in different parts of the United States — that the plaintiff, having possession of the slaves, as the executor of Joseph Duckworth, it was proposed by the defendant that *he*should take possession thereof, as plaintiff’s agent, until distribution should be made a-rnongst the next of kin — that this proposition was assented to by the plaintiff, upon the defendant binding himself to deliver the said negroes to plaintiff, when they should be required for distribution, and account to the plaintiff for the hire thereof, as the plaintiff would be bound to account to the next of kin — that thereupon the defendant executed to the plaintiff an obligation to that effect, the precise nature whereof the plaintiff could not state, because he, permitted the bond to go into defendant’s possession, who had ever since retained,’and yet refused to deliver it. The bill then proceeded to state that the next of kin of Joseph Duckworth filed their petition against the plaintiff, in the County Court of Moore, and in 1832, had a decree against the plaintiff for a considerable sum of money on account of the hire of the said negroes, since the death of Mrs. Duckworth, and during the time when the said negroes were held or hired out by the defendant, under the said agreement — and that the defendant refused to account with the plaintiff, or to pay over the hire of the negroes held tinder said agreement. The bill prayed that the defendant might be compelled to exhibit to the Court the obligation so in his possession, and to account with and pay over to the plaintiff what was due for the hire and services of the negroes so held, and for general relief.

The defendant put in his answer on the 5th of March, 1836. After admitting, in substance, the bequest of the ne-groes and the death of Mrs. Duckworth, and that the plaintiff was the executor of' Joseph Duckworth. — the defendant denied that the plaintiff, upon Mrs. Duckworth’s death, took the *actual*possession of the negroes; but said that the plaintiff, claiming the possession of them as executor, and the defendant having them in possession, and being anxious to retain *299that possession, in order the better to assert a right which he set up to a share therein, under a conveyance of some of the next of kin of Joseph Duckworth, the plaintiff and defendant came to the agreement in relation thereto, which was evidenced by two original instruments exhibited with the answer, one of them being the obligation called for in the bill;, and the defendant denied that he ever refused to let the complainant have that obligation, or that the complainant called on him therefor. The defendant admitted that under this a-greemeñt, he held possession of the negroes until the sale which was made of them in August, 1832. He further stated that, in the account taken in the County Court, on the petition of the next of kin, the hire of the negroes for 1829, 1830, and 1831, was estimated at $175 per annum — said that the defendant claimed and had allowed to *him,*one .year’s hire; and said that he had also received $87, for the hire of the negroes from 1st January to August, 1832, when the sale under the decree took place. The defendant claimed to be entitled to the share of Benjamin Duckworth, in the proceeds of the negroes, and to reasonable compensation for his services in managing the estate, and to have delivered over to him *thb proceeds*of the sales made in the decree referred to, by virtue of his agreement with the plaintiff — which agreement he professed he had ever been willing tb execute; and the question whether, according to its terms, spirit and meaning, he was, in any manner, accountable to the plaintiff, he submitted to the determination of the Court.

The exhibits accompanying the answer both bore date 27th of February, 1830 — the one was an obligation in the penal sum of $10,000, payable to the plaintiff, executed by the defendant and two others as his sureties, with a condition which, after reciting the will of Joseph Duckworth; the death of Hannah Duckworth; the duty of the plaintiff, as executor of said Joseph, to see the will executed; the taking possession of the slaves by the defendant, under a purchase from the next of kin of the testator, or some of them; and the willingness of the plaintiff to permit the defendant to retain that possession, and have the title to the slaves properly adjudicated, so that he should be saved harmless, as the executor of Jo-*300sepb Duckworth, and not made liable for thus suffering the negroes to remain in the defendant’s possession; proceeded to ^ *1 J*1 declare, that if the defendant should fully indemnify, and save harmless, the plaintiff in all suits, judgments, recoveries, and all costs and expenditures, whether of fees to attorneys, or clerks, or other necessary charges and expenses incurred in attending to any suit or suits, orders or decrees, which shall be made in any Court of Law or Equity, about and concerning the aforesaid slaves; and that the said McNeil], upon recovery, should surrender said negroes, or account for then-value and hire; and, in all respects, save harmless said Burroughs, and pay all charges and expenses which should arise in consequence of said Burroughs having suffered McNeill to retain possession of said slaves — then the obligation to be void — otherwise in force. The other was a deed under the seal of Burroughs, which, after referring to the foregoing obligation, declared it to be the intent of the parties thereto and to this instrument, that if McNeill should save Burroughs harmless, the latter should not be at liberty to take or recover possession of the said slaves; and the latter thereby agreed, if so saved harmless, he would not, as executor or otherwise, have any further claim to said negroes; and, moreover, thereby relinquished to McNeill all the right which he had, as executor, -to said negroes.

Upon the coming in of the answer, an order was made, whereby “ the cause was referred to the Clerk and Master, to take the account without prejudice to the hearing,” and said account, having been accordingly taken, and the report thereof confirmed by the court, the cause was removed into this court for hearing.

*Mendenhall*and *Winston*for the plaintiff.

Badger, *Worth*and *W. H. Maywood*for the defendant.

Gaston, Judge,

having stated the case as above, proceeded as follows: Upon the hearing, the right of the plaintiff to an indemnnity from the defendant, to the extent of the decree made against the plaintiff for the hire of the negroes while held by the defendant under the agreement, has not been contested; but it was insisted that the plaintiff might have *301enforced this indemnity, by an action at law upon the that the bond was in the hands of the defendant, by his mission, and might have been had at any tune, upon his demand; and that this being a case where a plain and adequate remedy could have been had at law, it was not one proper for the cognizance of a Court of Equity: that 1 * a defect of jurisdiction appears at the hearing, the court will no more make a decree than where a plain want of Equity appears: and that therefore the bill ought to be dismissed.— nAi , . .. , , . _ , . 4 he objection thus urged, is not, properly speaking, because of a *defect*of jurisdiction. A defect of jurisdiction exists where courts *oí particular limited*jurisdiction undertake *1 a*to act beyond the bounds of their delegated authority, *(Green v. Rutherforth,*1 Ves. 471;) or where a Court of general jurisdiction passes upon subjects which, the Constitution or laws of the country, are reserved for exclusive consideration of a different judicial or political bunal, as where the Court of Chancery in England undertakes to determine cases belonging solely to the cognizance . , o » j o of the King in council. *Penn*vs. *L'd Baltimore,*1 Ves. 446. In these, and in cases like these, there is a plain *defect*The exercise *oí*power here would be pation, for no of juiisdietion. _L Ul *jJ\J*>V C/JL LIVjl .J 1VULUU LÍOLIJ--consent of parties can confer a jurisdiction withheld by law; and the instant that the court perceives, that it is exercising, or is about to exercise, a forbidden or nil-granted power, it ought to stay its action; and, if it do not, such action is, in law, a nullity. But the objection here urged, is, that the court *ought not*to exercise jurisdiction over a subject upon which it can lawfully act, because the ■exertion of its extraordinary powers is not necessary for the purposes of justice. And, certainly, it is a general rule, that where a plaintiff can have as effectual and complete a remedy in a Court of Law, as that for which he invokes the aid oí a Court of Equity — a remedy, direct, certain, and quate — the defendant may insist that this remedy shall be sought for in the ordinary tribunal. But there is also a general rule that this objection to the exercise of jurisdiction, ought to be taken in due order, and apt time; for, if it be one which the party may waive, it will be deemed to *302have been waived by failure to bring it forward to the notice of the court, *in limine.*The objection not only has not been taken upon the pleadings in this cause, but the defendant has expressly submitted to the,jurisdiction of the court, by praying of it to decide upon the question of his liability. After this submission on his part, the objection must be regarded as one not of s.trict right, but addressed to the sound discretion of the court. But the objection is, in our opinion, unfounded. The plaintiff has a right, without waiting for actual loss, to call on the defendant to indemnify him against impending injury, and, to that extent, enforce the specific execution of the agreement between them. He shews this injury to be imminent, for he alleges a decree against him, to pay the hires of the negroes to the next of kin of Joseph Duckworth; but it nowhere appears that the decree has been satisfied; and until it be, he has sustained no *loss,*and can maintain no action at law upon the bond. Moreover, the bond was in the possession of the defendant, and the plaintiff had a right to come into equity for an exhibition of it, and for such relief there, as, upon its exhibition, might be deemed just. True, the defendant avers, and this averment must be taken to be true, that the plain tiff; before filing his bill, did not make demand for its production; but he does not aver that it was ready to be produced, had it been demanded. The failure tojnake^this demand will have its proper weight, when we come to consider of the costs of the suit, but it does not *per se*oust the court of the right to decree its exhibition. The motion to dismiss the bill is therefore overruled.

*301A (lefi.ct of (iXlStSWllCl'C courts of a ristJ oli°" undertake to actbe-bounds'of iiuR-deie-quted au-thorny; or UI,UQ by l!"vs°t the country«are reseived for sl'ye consid-10,1 oí a (i’flcrcntju d¡o>a¡ or tribunal,

Mo crnsent of i)arti;s juiisdietion ia,v'handby tt{|®t‘"j;tant court per-kisexel-ris-ercise, a fot- £ ’{0,1: *tay its ac-_ it°dó not,' a nulliY-

*302The report of the Master, to which no exception has been taken on either side, sets forth the amount wherewith the plaintiff was charged, in the suit of the next of kin of Joseph Duckworth, (in which suit the present plaintiff and defendant were both parties — defendants,) because of the hire of the negroes while in the hands of the defendant, deducting therefrom that portion which the defendant claimed before him, as the holder of the share of Benjamin Duckworth, and finds the balance, with the interest to the 1st of March, 1838, to be $587:20. The report further states that the defendant denies this amount to be due, and insists that *he*ought to have *303a credit for-f357:37$, and interest thereon — being the amount of commissions allowed the plaintiff, as executor of Joseph Duckworth, in the said suit, because of the plaintiff having transferred to him all the plaintiff’s interest as executor in that estate. The Master does not pass upon this claim, but submits its validity to the Court. This mode of reporting is objectionable. The Master should decide according to his best judgment upon all the matters of mutual claim and charge brought before him, and report his final conclusion *— '-j*■» thereon, affording to the parties an opportunity of having that judgment reviewed for error upon specific exceptions. the report, such as it is, has been confirmed; neither party has prayed for a re-hearing of the order of confirmation, but both have argued before us the special matters so reserved by the Master for the consideration of the Court. We have, there-*4*. lore, proceeded to ascertain the right m relation thereto.

lt ¡s tionabietor up0n a ref-hi.m>t0 <le-cline Dass~ ingupon a- & its validity ’^hou'id decide, according to his best judgment, upon ail the mufuaf ° and brought_ andreport ’ elusion thereon, p“tTMpy"0 having that c.ifio exoeP-

Upon looking into the exhibits accompanying the report, it is manifest that the defendant is in a great error with respect to the amount of the commissions which, in the referred to, were allowed to the plaintiff. The decree of the Court in that suit was grounded mainly on an account taken by auditors, wherein the present plaintiff was debited with the hire of the negroes for the years 1829, 1830, and 1831; and credited therein, altogether, with the sum $323:88.1. This *credit*was made up of various items — one was for $175 — being the hire of the negroes for 1829, and the interest thereon, which was *deducted*as set forth in fendant’s answer, because of Benjamin Duckworth’s expenses in resisting certain suits affecting the title to the negroes. Other items are for debts of the testator paid by the plaintiff, and for debts due to him- — and the whole amount of commissions allowed as a credit to the plaintiffs in that account, is but $30:50. The account appears to have been afterwards corrected, by allowing the defendant credit for errors in estimating the amount of debts paid by him, and' charging him with the amount of the hire from January to August 1832, so as to make the» *total*amount of credits on the account $387:37$; but no farther sum was allowed as commissions, on the administration of his testator’s estate, since the death *304of Mrs. Duckworth. We are of opinion that the defendant is entitled to the benefit of these commissions, because, in they" are charges against the estate, for the collection of the hires of the negroes while held by him and Benjamin Duckworth; whom, it is found by the report, the defendant represents. It would be contrary to the fair exposition of the agreement of the plaintiff and the defendant, that the plaintiff should derive *profit*from the defendant’s agency. All that he is entitled to is, exemption from loss — this correction being made, the plaintiff is entitled to a decree for the balance. It appears that in the suit referred to, there was a decree that the negroes should be sold; and the plaintiff was appointed by the Court, a commissioner for that purpose. The Master’s report does not fairly present the question; but, it has been contended here, that the defendant ought to be allowed, in account with the plaintiff, a credit for these commissions. We think not. These were allowed to the plaintiff, not as executor, but as commissioner. But, even if they had been allowed to him as executor, we construe the instrument exhibited, not as a transfer of the office of executor from the plaintiff to defendant — {a transfer which, by law, could r.ot be made,) — but as an agreement that the defendant might hold the negroes and receive the hire thereof, *until*they were to be surrendered for distribution. — and the sale took place after they were thus surrendered.

Very evidently, the claim advanced in the answer, and which has not been pressed on the hearing, that the defendant should have delivered over to *him*the proceeds of the sale, made under the decree for distribution, is unfounded.

The Master is to be allowed $10, for taking the account, and as it does not appear to us that any demand was made on the defendant for a settlement, or for a production of the 'obligation, before this bill was filed, we direct the *costs*of taking that account to be paid equally by the plaintiff and defendant; and as to the other costs, that each party shall pay his own respectively.

Per Curiam. Decree accordingly.