#### Elizabeth Redmond *v.*Bethuel Coffin, *Ex'r. of*Thomas Wright, *et al.*

Where to a bill by the next of kin against the executors and legatees, the latter relied upon a former deer e, pronounced in a cause between the same plaintiff and the executors, commenced after the legal est ite of the legatees was complete, but the executors did not plead it, nor in any way rely upon it, the decree was held not to be a bar.

The plaintiff in her bill averred that she was the sole next of kin of the testator of (hedefendant — that lie died in the year 1816, possessed of a number of slaves, and by his v,ill devised as follows: “I give anti bequeath *u*them (.the slaves) unto the Society of Friends of New *438*“*Monthly Meeting.or their agents and their successors. “I afso give and bequeath all the personal property of “my estate to the above named black people, to be sold “ aiid equally divided amongst them.” The plaintiff averred that the bequest of the slaves to the New Garden Society was a bequest in trust that they might be emancipated, as.the religious opinions of the Society forbade its members, or the Society as a body, to hold slaves — that the bequest of the residue' to the slaves was void, because of the incapacity of the legatees to take, and that a trust resulted to her as the next of kin, both of the slaves and of the residue. She then averred that one of the slaves named *Jim*had been sent out of the State to foreign parts, for the purpose of being emancipated. She also averred that she had appointed one *Willie Wright*her attorney in fact, to settle with the defendants ; but that ho had greatly abused her confidence, and that she had revoked his power. The prayer Was for an account of the prices of the slaves, and of the residue, and payment of the value of *Jim.*

By an amendment *Eliazur Hunt, Timothy Manney, Josiah Unlhunk*and *George Swain,*agents of the New Garden Meeting, were made defendants, and the plaintiff alleged that they had received the said slaves and surplus of the executors, and had hired out the former, and she prayed the same relief against them which in her original bill she had prayed against the executors.

The executors by their answer insisted that the New Garden Meeting as a body politic could take and hold slaves, and averred that believing the bequest tobe valid, they had in August, 1816, delivered the slaves, and paid over the residue to the agents of that Meeting. They denied notice of the plaintiffs’claim until the year 1818, after they had delivered the slaves. They stated that in December, 1817, *Wright presented*to them a duly authenticated power from the plaintiff, authorising him or his substitute, to settle and compound with them for the plaintiffs’ share in the estate of their testator— that *Wright*appointed one *Drmghn*Ills substtt&te^fcnd.,.; *439t])at they caico ‘'(o a full am! fair settlement and com“promise for all the interest of tiie plaintiff in the estate “ of their testator, for the recovery of which the said *hWillie Wright*had filed a bill of complaint in the court “of equity for the county of Guilford5’ — and that *Wright*received the consideration stipulated to be paid by them upon the compromise. And they averred positively that this settlement and payment was made without notice of the revocation of his power.

Two .papers executed by *Wright,*dated the 12th and 14-th days of December, 1818, were filed. The first was a release, in which it was *recited*that *“Willie “ Wright*of &c. attorney and agent in fact for *Betsey “Redmond,*of Fayette county, in the -State (^Kentucky, *“*by virtue of her power, investing me with all right,&c» *“*have remised, &c.” — this was signed and scaled by *Wright,*witiiout the addition in any way of the name of the plaintiff. The other was without a seal, was signed by *Wright*alone, without reference to his principal, and acknowledged the receipt of 450 dollars as a consideration of the compromise. The-'last was relied on as a bar and was filed -as an exhibit to the answer. The first was proved by the deposition of an attesting witness.

The answer of the agents of the New Garden Meeting set forth at large the religious belief of tiie Society, and insisted that as a Society, they could take and hold slaves. They admitted, however, that slaves held by the Society were not worked for its profit — but that the money realised from their labor was deemed by the Society a fund to he held in trust for the slaves, and to be used for their spiritual and temporal advancement. They charged that the plaintiff “heretofore, preferred in “ this court her bill of complaint against the executors *“at Thomas Wright hr*the same causes of complaint “and relief sought in this bill, and that after full con- “ sideration of the claims of the respectivo parties, and i4 for the purpose of finally disposing of and adjusting *u*all matters in litigation and equitable consideration in-*W*volved therein, the said controversy and suit was *H*compromised by tlio parties at and for the sum of 430 *440“■dollars, which was paid by the said, executors to the “said plaintiff, by her attorney duly authorised'and em- *“*powered, to wit: one *Willie*Wright, who as agent and “attorney managed and conducted the said suit-; and “ for which said sum paid-as aforesaid, the said WAY. attorney as-aforesaid, released and conveyed to the said “executors all the title, interest and claim of the said “ plaintifFin and to the estate of the said testator, and that “in pursuance of the said compromise made as aforesaid, “ a decree of the court of equity for the county of Guilford “ was duly made at &c.in-the following whinds to wit: The “ plaintiff, by her attorney i n fact, W. W. having sold, and “ assigned and released all her right and interest in the “ slaves and other property of *Thomas Wright,*dec’d. to “ the defendants in consideration of four hundred & fifty “dollars paid to him. Bill dismissed* each party pay- “ ing their own costs,” and they prayed the full benefit of this decree, as-if ithad been specially {¡leaded.

A bequest of stives for th« purpose of emancipation, is void, and a trust results to the next of kin.

The release and conveyance mentioned in the answer was that above stated, filed by the executors. These defendants exhibited a cony of the former bill and decree, which fully supported their answer and pica. Replications were' taken to these answers, and tiie proofs filed were- very voluminous. A condensation of them, is unnecessary, as they arc stated in. the several opinions delivered in the progress of the cause. It was argued at great length at June term, 18S1, by *Winston*for the plaintiff,, and by *Gaston, Mash ami Mendenhall*for the defendants, when the following opinion was delivered. The cause was not then reported, as the papers were-sent to the court below, before it could be stated.

Rums. Judge.

Th e general question upon the validity of the charity created by this will, was not much argued in this case. I presume the counsel considered, as the court does, that it is not open to discussion. Qualified emancipation of the kind set up by the answer, and proved so distinctly by the member of the society of Friends who has been examined to it, stands upon the s.amc ground as a bequest directly for that purpose— *441However praiseworthy the motive for accepting such a trust, or however benevolent the will of the donor may be, it cannot bo supported in a court of justice. A stern necessity arising out of the safety of the commonwealth forbids it. *Haywood*v. Craven, (2 *Law*Repos. 557) and *Huckaby*v. *Jones,*(2 *Hawks*120,) are leading cases; the one a direct declaration of the purpose of ctnancipa-*lon *’*afU* ^10 °^1C1‘ 0110 collected by the court from the terms of the will. They were followed by the *Trustees of Contentnea Society*v. *Dickinson, (*1 *Dev.*189,) and *Stephens*v. *Ely, (ante 1 vol.*493.) which leave no part ' . . , „ of the ground unoccupied. 1 he loriner was on aconvcyance (■„ the Friends for the same purpose designated in , , .... , , . this bequest; only this is stronger because here is a bc-quest to the slaves, which shows, on the will, that the testator meant emancipation. That is not an odious, but it is a dangerous and unlawful species of mortmain ; and a trust results to the next of kin, where there is no residuary clause.

Crowfn *TZ wood,*(2 *Law Mucka/^-.Jw’es*f2 *Hau-ks.iw.) Cotenlnea Society*v. *Dickinson, (XDev.Rep.wo) Stephens*v *Ely, (¡¡me*l *vd. p.*491,) approved,

. instrument release, but not under seal, cannot be pleaded asa bar.

musAcUiTtbe name ^of bis deed*Executed by him, in ins as his proper act, fhTprincip-d "ld

Several bars to an account are set up here. The first >s> that of a release, which is relied upon in the answers 0f the; executors and also of the trustees. Thai annexed , . to the answer, and said to be a copy, bearing date the 14th of December, 1818, is not a release from any body, not being under seal. And it might perhaps be proper to exclude any other, because that and that alone is relied on in the answer. But the reading of the original proved by *Hubbard,*and bearing date *the 12th*of December, 1818, was not objected to, and will therefore be considered by the court.

Neither of them can avail the defendants because noi-ther is executed in the name of the principal. It is not material in what form the deed be signed, whether *Jl.*by *jq*q_ 0I. *jyt*f()I> ^ provided it appear in the deed, and by the execution that it is the deed of the prin-cil,a*' ®ut ^iat must appear; and the cases cited, put that beyond doubt. To them may be added, *Combe’s*case, (9 *Rep.*75.) *Frontis*v. *Small,*(Ld. *Raym.*1418,) and *White*v. *Cuyler,*(6 *T. R.*176.)

■As a positive bar then, these papers are nothing. *442They do riot mention any sum' of money paid. But the answers state, that money was paid, namely, the sum of four hundred and fifty dollars; but *Hubbard,*the subscribing witness examined by the defendants, says that thesurn agreed on was jg 300, of which only part was paid, a note being given for the residue. A question has been made on this, whether the payment to *Wright*was good since his power was revoked, and the parties had notice of the revocation. The court would not declare that fart, were it in the least doubtful ; but leave it to arise on the master’s report, upon his allowing or disallowing the sum paid to *Wright,*as a payment to the plaintiff. But it is positively sworn by *Scott,*tiiat he gave notice of the new power to Swain. who made the agreement for the executors with *fFright,*and through whom the money was paid. He is supported by the testimony oí *JDravghn,*who says that when he came to sec *fFright*next day at Greensboro’, he heard of the revocation, and told *Wright;*and that he had before seen the defendant *Coffin,*and been fold by him that he had seen *John C. liedmond,*the agent appointed by the second power, and had a conversation with him respecting the suit; though lie did not say that lie told him of the second power. From this it seems certain, that the power to the son was at the place, in the possession of *8colt;*and no conceivable reason can be assigned why he or the son should conceal it, while the compromise was going on, and disclose it immediately afterwards. The court must therefore take it, that the revocation was known to *Swain,*who was the agent in the business, and consequently to the executors; and declare that the payment was made by the executory, or on their behalf, in their own wrong.

A partial pay* tee, to his *cestui*^mderTny circum-tancrs, re.iiue.

If this were, not so it certainly could not be set up, but as a satisfaction *pro tanto.*A payment of a less sum is not a satisfaction fora greater then due, even at law. Much less docs a payment by a trustee of a part of the fund belonging to a *cestui que trust,*extinguish the right to the residue. Here besides the slaves, the plaintiff was entitled to more money than was received. But it is unnecessary to pursue this point; because even the sum *443advanced was not a payment to the plaintiff, for want of authority in *Wright*then to receive, it.

it is however contended, that a decree pronounced in a former cause, brought by the plaintiff against *Coffin*and others, the executors of *Thornets Wrighl’s*will, is a bar to this suit. It is not pleaded by either of the defendants. Nor is it relied on in the answer of the executors. But it is brought- forward in- the answer of the trustees of the Quaker society to the bill as amended, so as to make them parties. And the transcript of the first suit lias been read in evidence. From that it- appears that a bill was filed in February, 1818, by this same plaintiff for ¡in account of *Thomas Wright’s*personal estate against- his executors, who are also part of the defendants in this suit. There were no other defendants but the executors. No answer was put in ; and after the compromise before spoken, viz. at April term, Í8L9, the entry in question appears.

It has been objected! by the plaintiff, that this does not -bar as-a decree; because it docs not profess to be the act of the court, or to be founded on the merits, but that of *Witlie Wright*himself, after the revocation of his power; in execution of his agreement. Perhaps if strictly construed it might be licit! so, and therefore only obligator i?y as an agreement. But I believe the decree is clear--Jy removed out of the case, upon other and more general principles. ‘When a former decree is pleaded and relied on as an absolute bar, *propio vigore,*it must bo a decree determining the very point in a suit between" the same parties. This is the case at law, and hence a judgment against A is not evidence in a suit against A. and another. In equity there may be this difference : that as the liability of the several defendants in this court may be several, the introduction of a new party in a second suit, shall not prevent a former decree from protecting one of the defendants, who is called in question a second time, for the same matter. For as to that matter, the parties arc the same. But a decree in favor of one cannot protect another, who was not a party, unless he beyi privy. And indeed a stran* *444ger thus introduced cannot use tlie decree at all. as such, because it cannot be used against him. I will not say , . tUat the execAitors nnght not have re-lieu on this as a former decree ; but the other defendants cannot set it up, because they are not hound by it, being neither party nor privy. Indeed in this very case, they have objected to the reading of a deposition taken in the former suit, upon this ground, and the objection was sustained. The reason is. if they had been defendant# before, the decree might have been different, because other evidence might lia'e been offered. (1 *Phil. Ev. 2,50. 252,*where the cases are collected.) I am now speaking of the decree operating as being an adjudication, and not as founded on a compromise; in which last case it may be used by any body as evidence of the t'udt of satisfaction. The privity between the executors and the society did not thou exist. It never did extend to any thing but the slaves, for the residue is not given to the society, but to the slaves, and the bequest was merely void. Then as to the slaves, they were delivered over on the I6i!i of August, 1816, to the trustees of the Quakers, as alleged ■in both the answers in this suit. There is a privity between trustees and *cestui que trusts*as long as that reía» tiem continues ; and a legatee is bound by, and can avail himself of a judgment or decree for or against the exec* utor, while the trust is open, and the'funds in the hands of the executor. But after the trust estate is conveyed to the *cestui que trust,or*the legacy assented to, and the property delivered to the legatee, there is no furtherpri* vity. The- legal estate is in the legatee himself. A suit then against the executor founded on his acts or breach of twist, does not affect the legatee, who claims above it, and by a legal title prior to the institution of the suit. When the privity is destroyed, the consequence necessarily follows, namely, that as a stranger, lie can neither be benefited nor injured by a decree in a suit against the executors. For the estop-pel of res *judicata,*like all others, must be mutual— Here the trustees of the society did not come to the estate since the fanner decree, nor *pendente*lite; but before *445the former suit was instituted. And as *to the*money arising from the perishable estate, that was paid over to them without any pretence of right, am! therefore, though paid after the first suit, it must be considered as remaining. for the purposes of this suit, in the executor’s hands.

The next consideration is, whether the decree protects the executors themselves — that is conclusively. They have not relied on it. Can another set *it up*for them ? Or when not relied on as a positive bar in the pleadings, but offered in evidence, is it not open to *an*investigation of the merits of the demands determined in it. At law, a former judgment is conclusive ; but to make itso it must be pleaded (if the party have an opportunity,) as an es-toppel. And if it. be not pleaded, the matter is at large ; because the. party may think that lie can do better than he did before. *(Vooght*v. *Winch*2 *Barn.*& *Ald.*662.) Here, the executors may have been conscious that the decree was obtained by collusion with *Willie*Wright, the removed agent, (as it was certainly entered after notice of the ¡‘evocation of his power.) and not *willing ta*litigate it. and to have chosen to rest their case upon its merits. It is not for another to prevent that. Again: the plaintiff might have dismissed that bill, upon the discovery that the legal title of the slaves had passed by the assent to the legacy, because she did not choose to take a personal decree against the executors who might be insolvent, or because she wished to recover the specific chattels. She may follow the property; anda bill for that purpose is not barred by a previous bill against another person through whose hands it has passed. unless the privity then existed.and unless, at any rate, it appear that in the first suit, the right to the chattels be the very point decidi d. Both because there was no pri-vity between these two sets of defendants at the time of the filing of the former bill ; and because new matter, that is, a right to specific relief against another person, not a party before, upon a state of facts not brought forward in the first suit, that decree does not bar this suit, But if it would have that effect, it would extend only to the persons in whose favor that decree was pronounced, *446if relied on by them. They have waived the bar, and - have elected to have a decision upon the merits, as well they may,if they wish to assume any appearance of fairness as between the other parties. They ought to desire that the right should prevail between them ; and therefore, very properly, left the case open to a decision of it. As it would be enough for them, that they delivered the ' legacy *bona Jide,*they ought not to attempt to conclude the true owner,if she be such, from recovering back that which they delivered over by mistake.

Upon* bill by í u-noxí,of if his character does not conclu-*éferenccPasrt® that fact, will Redirected.

As the case stands then upon the pleadings, the former decree (if it be one) does not prevent this suit going on. The former defendants sübmit that it shall. The new defendants cannot forbid them. And the new defendants cannot avail themselves of the proceedings, as such, in a former suit, to which they were not parties nor privies.

It is next objected, that the plaintiff has hot shown herself next of kin of the testator. It is common to direet an inquiry to ascertain who are next of kin ; and tbe bill would not be absolutely dismissed on the hearing upon that ground, where the relation is not denied, though not admitted in the answer. But here there"is *•prima Jude*evidence in favor of the plaintiff. The testator had no *issue;*nor is any parent, or other brother or sister shown. The plaintiff alleges, that she is sole sister, and resides in Kentucky. Her residence is proved, and there is no evidence that another of her name lived there. It is proved by a witness that the testator ‘ said he had a sister living in Kentucky, by the name, of the plaintiff/and that he corresponded with her husband; and spoke of no other brother or sister. And further, in both the letters of attorney, she recites her relationship. and upon the faith of that, and other information acquired by the defendants, probably from *Willie*Wright, (who was a relative,) they treat with *Wright*as her agent for the whole estate. After this, the defendants cannot say, she is not to be presumed of kin, at all events, until upon enquiry, if the defendants ask for it, the contrary shall appear.

*447Another question of some difficulty was touched on at the bar, which the court will not decide without further argument. It is whether the testator’s widow is entitled. Clearly she w as not against the charity, unless she dissented. Thence the argument arises, that she cannot say she was not to have a part (inly in favor of the trustees; but that under our act of Assembly the legacy is a satisfaction of her whole claim on the estate, because the testator must be supposed to make the bequest in reference to her rights. On the other hand, this being a legacy which fails for its illegality, it may be said that intention is out of the case altogether; for if the intention prevailed, both the widow and next of fcin would be equally included. It becomes a case, where the law disposes of the fund, because in the case that has happened, no intention is to be collected either way; and when the law distributes, there is but one rule, which is the statute. Possibly, there may be a distinction between an undisposed residue, and that of a legacy failing as this; and possibly too, the act of 1784 may bar her right in both, as she did not dissent. The court inclines to let in the widow; but it is too general a question to be decided, having the widow’s representative before the court, and without full argument. It will be left, therefore, to he considered of by the plaintiff’s counsel.

Amotion was'made on that; side to remit the cause for amendment in another particular; and if they deem it expedient, on this point, to make the widow’s representative a party, the case may go back for thatpurposc, as we do not wish to conclude the question unless the case is put into such a shape as will allow a full hearing to the claims of the widow’. But if the plaintiff chooses to bring on a final hearing here, relying upon her exclusive light, she may do so, at the risk of having her bill dismissed for want of all proper parties, In case the court should think the widow entitled.

Per Curiam. — Declare the bequest of the slaves to the New Garden Meeting to he illegal and void, and that *448or the resi<!ne to the slaves to be also void, for want of capacity in the slaves to take, and that a trust, of the slaves and. residue results for the next of. kin; Declare further that the letter of attorney made by tlie plaintiff to *Willie Wright*was revoked on the 1st day of October; 1818, and that the defendants had notice thereof hefore making the compromise with *Wright,*and that therefore the plaintiff is not bound by the payment alleged, to? he made to him-.

Declare also,that the decree relied on in the answer of the-agents,does not bar this suit against the the executors, because they, have not pleaded the same nor relied upon it in their answers as- a bar — and that it does not bar this suit against the other defendants, because they were not parties to the suit in which, it was-pronounced, and because the executors were not at tlie time the said decree was made, nor thereafter, trustees for the other defendants, nor otherwise privy to them.

The minutes then directed an account, and gave the plaintiff an election to have the cause remanded to the court below, witluliberty, to make the wife of the. testator a party.

Upon this order the plaintiff elected to have tlie cause sent back to Guilford, where he made the administrator of the widow a party. It appeared that she died a few daysafter the testator, without having entered her dissent to the will, by which, she took both land and alavés.

The master, during the time the cause perrdedMn the court below, made *his*report, in which he charged the defendants jointly, with tlie nett residue of the estate of the testator; 416 93 dollars, and interest thereon; with the value of four slaves, which had been carried to distant States, and interest thereon — together with-the annual value of all tlie-other slaves and interest thereon— amounting in the whole to 5,621,74- dollars.

Tlie cause was removed to this court again, at June term last, when the defendants excepted to the report:

1st. Because the master had disallowed the payment to *Wright.*

*4492d. Because he had charged them with the value of slaves which had been removed, and interest thereon,

Sd. Because he had charged them with interest upon the annual value of the slaves.

In support of their first exception, the defendants filed a petition to rehear so much of the order made at June term, 1831, which declared that the payment to *Wright*had been made after notice to the defendants of the revocation of his power.

*Nash,*& *Mendenhall*for the defendants.

*Winston*for the plaintiff.

Rustin', Chief-Justice.

The master having made a report under the reference ordered at June term, 1831,to which the defendants having excepted, the cause has been again brought on upon the report and exceptions, and on the motion of the plaintiff for further directions.

The report finds the balance of the proceeds to the personal estate, exclusive of the slaves, to be $416 93, on which interest is computed from April, 1821, that being the time when the executors stated and returned their account current. The master finds that this sum is not now in the hands of the executors, but was paid to the other defendants, the trustees of the society of Friends, or by their order, and was in fact applied in paying the sum agreed to be given upon the compromise made with *Willie Wright.*

To the whole of this charge, both *the executors*and the trustees except; the latter, because the money was never in their hands; and the former because it was paid with the privity of the trustees, and on their behalf, in good faith on the part of the executors, under the belief that it belonged to the society as owners of the slaves,and that *Wright*was the agent of the plaintiff.

The report also finds that in 1816, the executors delivered all the slaves to the trustees, and that in 1819, one of the slaves was sent out of the State to parts unknown, or was permitted by the defendant to go, so that the plaintiff cannot now get the possession of him, and that pending this suit, viz. in 1825, three others of them *450were in like manner sent or permitted to go away. Tlie master charges the defendants with the value of those slaves, as of the time they were' sent away, am! with interest from that time. He also charges them with reasonable hires of all the slaves while in their possession-, including those sent away up to tlie time they went, and interest on those hires as they become annually due.

To this part of the report the executors and trustees also respectively except, tlie former because they properly assented to tlie legacy to the society, and delivered the slaves to the trustees when their duty ceased, and they were no longer liable for either the slaves or their profits, since if a trust resulted to the next of kin, • it arose out of the legal estate in the agents of the society : And the latter, because they have personally derived no profits from the slaves, but allowed them to enjoy the profits of theii’own labor, and to leave the State under tlie honest belief that they belonged to the society, and that* such was the intention both of the society and the testator. And as to the interest both sets of defendants except upon the common ground that it is not chargeable on rents and hires.

To the proper consideration of the exceptions, it is necessary to advert to the pleadings,ami to tlie transactions previous to this suit. *Thomas Wright*died in April, 1816. and by his will bequeathed his slaves to the society of Friends of New Garden monthly meeting, or their agents and successors, and gave the residue of his personal property to the slaves themselves. This has been heretofore declared to be a trust for emancipation, and as that was against tlie policy of the law, that- it was void, and resulted to the next of kin. : The executors however, delivered the slaves to the agents, in August, 1816. On tlie 16th of February,, 1818, the present plaintiff as sole next of kin of the testator, filed her bill against the executors for an account of the personal estate, and alleging that the trust of the slaves resulted to her. The plaintiff is a widow residing in Kentucky, and appointed *Willie*Wright, residing in. Guilford, her agent to prosecute,her suit iu Guiiford, and.receive th© *451estate that might bo coming to her. *Wright*was- an hr* capable and distressed man, and as the event proved, fa¡{hless as an agent. The executors put in no answer to that bill at Spring term, 1818, but got leave to answer at the next term. At the next term they still delayed to answer: Yet *Wright*did not set down the bill as confessed, but enlarged the time to another term. Before that arrived he was put in prison for debt, at whose instance, does not clearly appear. But there is much rea-to believe that these defendants were connected with it,, for no communication for a settlement seems to have been had until, he was imprisoned. On the 12th of December, 1818, the executors engaged with one *Brcmghny*acting on behalf of *Wright,*for a compromise, and then advanced §60 towards it, for the purpose of releasing him from jail, which was to be valid, in case *Wright*should accede to it, and the residue should then be-paid. The next day *Wright,*then, in jail, assented to the arrangement, and it ivas concluded by the execution of two papers by him, one dated the 12th-of December, 1818, purporting to be a general release to the executors, on the part of the plaintiff, of all demands for any part of the estate of the testator; and the other dated December, 14th, 1818, in consideration of §450 then paid, to discharge tiie suit, and to sell and assign to the executors, all the interest and claim of the plaintiff in and to the slaves and all other parts of the estate. This agreement was made by the executors personally, and by the advice and with the assistance of the defendant, *Georgs Swain,*who acted on behalf of the *society*and their *trustees, who*state iti their answer, that they advanced part of the money. The sum paid to *Wright*does not precisely appear. *Draughn*says it was §410, including the previous §60, while *Hubbard,*a witness for the defendants, and a subscribing witness to one of the instruments, says it was §300 or thereabouts, for part of which a note was given. At spring term,1819, the suit was dismissed under the agreement, by rule of court. This transaction has already been declared not to be a bar to the plaintiff, upon the ground that *Swain*and the executors then *452knew that the plaintiff had revoked the authority to *Wright.*

Although executors who Ó0I/B *fide*pay a legacy tu a charity of donbifu. validity,are protected, yet when slaves were bequeathed to a Quaker society, upon a trust for emancipation, and the executors conf'e-deratingwith the society to defeat the claim of the next of kin, delivered the slave s to the society, and otherwise acted *mala fide,*they, in default of payment by the society, were held responsible for their value and hire,and also,for interest there-

In July, 1824, this suit was brought, having the same objects with the former, and making, the agents of the society defendants, and charging that the compromise with *Wright*was unduly obtained, after the plaintiff had revoked his authority, and the other parties hail knowledge of the fact. Both tiie executors and the agents by their answer, insist upon tiie compromise and release as a bar, and also upon the title of the society to the slaves under them, and under the’ bequests of the will,upon the ground that the society controlled them, and does hold them as property, though they do not apply the. pro,fits to the use of the individual members,or that of the society as a religious association, but as a charity for those slaves or others. Tiie executors deny that *Jim*has been sent away by their privity, and say, although they are friends and members of the same meeting, that they had no control over the slaves, but the agents only. Am! the agents insistingupon a general property.say of course they had a right to send him or allow him to go away.

As a general rule, it must be admitted that executors are bound at their peril, to pay money and deliver the property to the proper persons entitled to it, as next of kin, or legatees, It may be admitted as an exception, that executors in trust, for a charity, under a will of doubtful construction, or where the validity of the charity as a question of law, is doubtful, who act honestly, though erroneously, will be protected in the application of the funds, until demand from the person entitled. Upon this principle, perhaps the executors might be excused for delivering the slaves' in August, 1816, to the other defendants, though the court cannot recognize the purpose of emancipation, there being no evidence of meritorious services, as being in this State, a moral and charitable object in a general sense, much less a charity in a legal sense, and it is hard to suppose any citizen of North-Carolina, and especially of the Society of Friends, to be so little informed of the law upon this subject, as not to he certain of its illegality at *453least. But tiie case does not require an opin’on upon that point, nor even u pon the effect of emancipation of the slaves, promised or permitted by the agents, before notice of the plaintiff’s rights, cither upon their own responsibility, or that of the executors. For it does not appear that any of them have been emancipated at any time, and it does appear that the parties had full notice of those rights,before any of the slaves were sent away. Three of them indeed, have been put beyond the the plaintiff's reach pending this suit, in which the defendants assert a right to -withhold them from her, as being legally and beneficially their property. This would be a conversion at law. The fourth was sent off in 1819, in the interval between the termination of the first suit, and the bringing of this. Can that be regarded as *bona fide,*and arising from an honest mistake? 1 must here remark that the case of *Haywood*v. *Craven,*was decided in this court in July 1816, in which the nature of such trusts was determined. Every body deemed the question one of great importance, and perhaps no decision was ever sooner and more generally known, either as to the point of it, or its principles. In possession of the knowledge of it, how stands the conduct of the defendants. They may be considered as acting upon a motive of praiseworthy benevolence in the abstract, in the endeavor to free their enslaved fellow creatures, but in reference to the law of their country, and the duty of obedience to it, and in reference to the rights of property of the plaintiff, they cannot pretend good faith. They acted in bad faith in respect of those obligations. They endeavored to fortify their asserted rights of property, by the release and assignment by the plaintiff of her right of property. They attempted to give that character to instruments obtained from one to whom she had gi ven authority, and from whom siie had withdrawn it, with their knowledge, in the hope she could not prove such knowledge on their part, and therefore that she would be bound notwithstanding the revocation. And if *Wright*had still authority, the compromise was made upon snch terms, and under such *454circumstances, that it could not stand in this court, but would be set aside as unduly obtained upon inadequate • 1 *x*consideration, and by taking advantage of, if not producing the distresses of the agent. Tlie first suit had pended nearly a year without an answer, and without any steps towards a settlement. "We then find the agent in jail, and immediately the compromise is proposed,and the plaintiff’s money paid for his discharge; and the whole sum paid is less than the cash balance in the executors hands, to which the plaintiff was entitled ; in consideration of which, she is made to release all claims to the residue of the estate,and to convey the slaves specifically. Upon a bill filed to get rid of such a deed, upon the single point of fraud and imposition, the plaintiff must have been relieved, which is an answer to all that can be said about the good faith of the parties. If the executors had come forward as persons standing indifferent between the claimants,according to their duty, and said we have so much money, which we are ready to pay you, but as to the slaves we cannot deliver them .to you, because we bate, as we thought we ought, already delivered them to the" agents of the society of Friends, and if there is a trust for you, apply to them, or for relief against them, it would have made different case. But the executors and agents made a common cause, and this unfair compromise is effected, and an assignment of the slaves is actually made to the executors themselves, no doubt for the protection of the agents. Each of the parties is, In such a case,liable to the true owner for all subsequent conversions or misapplications of theproperty,though they may not be liable in equal degree,but the one after the oth*er. Here all the parties are before the court, and the plaintiff seeks the specific property. As far as it can be had, she is entitled to it; but for ány parts of it that have been eloigned, she is entitled to compensation from thelastholder ami actual wrong-doer; and if satisfaction cannot be obtained from him, then she has a right to look to all the others by whose more remote agency the injury to her has arisen. That compensation consists in the value of the slaves withheld from her, and interest on it.

*455As to the sum paid to *FFright,*it being, wrongfully paid by the executors, it must be considered as between.them and the plaintiff, to be still in their hand's; but as between thcm an(] t]ie other defendants, the agents, it was paid witli. the privity and by the request of the latter, and for the confirmation of their pretended title to the ne-groes, and therefore was a payment to their use, and the agents must be liable first for it. It is true that one of the ■ defendants, *'MviS-wuin,*was not appointed one of tiro agents of the Meeting until the 26th December, 1818,. but ho is equally liable with the others for the whole, for he was the individual who made the compromise and ■payment, acting on behalf of the meeting of which he was a member, and the other agents and he, as agent, ■subsequently ratified the whole, and all four of the slaves vwcrc sent away after he bad charge of them.

As to the hires anil the'interest on them: Hire is the natural profit of slaves, and if not made, ought to-have been made, and the owner is entitled to receive it from ..those who withold the slaves themselves. It is no answer to say that the negroes worked for themselves. That was as much against law and public economy, as against the individual rights of the plaintiff. It certainly is not the general rule to charge interest on the annual profits, nor ■would it.be allowed lie.ro, if the defendants had rendcr->.ed a fair account, or allowed the case tobe decided simply on the original rights of the parties.. But the extreme injustice done to the plaintiff in the'beginning, in denying her right, in taking advantage of the incapacity, the faithlessness anil necessities of her agent, to cx-' tort a release and a conveyance from him, upon payment only of a very small part of what was due to the plaintiff, and after they knew that sh.e had appointed another attorney, and the attempt to set those deeds up as a bar ip this suit, ami in the meanwhile to send off some other of the slaves beyond the jurisdiction of the court,, all together constitute so gross a case of bad faith, and wilful resistance to the cause of justice, and the claims of property, as acknowledged and guaranteed by the laws, as subjects the defendants to account upon the most rigorous principles, and renders them justly chargeable with *456the highest hire,and interest on it. For which reasons, all the exceptions are overruled,and the report confirmed, and the plaintiff must be declared entitled to all the slaves reported to be yet in this 'State,, and' to. recover from all the defendants the sums of money reported to be due for the residue and'Tor the value of the four slaves sent away, and the hires of all the others,, and interest upon those several sums; for whichhowevcr,the defendants, the agents of the society, are liable to her 'in tlio first place, and therefore execution will issue therefor immediately against them, and if-upon, return thereof it should appear that satisfaction of the whole, or any part thereof cannot be had from them, that then the plaintiff shall have execution against the other defendants for the deficiency then remaining.

The case of *Craven*v *Craven (ante page*344) approved and followed.

When this cause was before the court, upon the hearing in 183), a doubt was entertained upon the right of the testator?s widow7, to a share in this property as not being effectually disposed. The point has been sinco much considered, and finally decided against, the right in *Craven*v. Cravea, at the present term. So that the bill, so far as it seeks to recover any tiling as belonging to the widow by her administrator,, must be dismissed.

Ter curiam.. — Bile dismissed.