The defendant put in his answer on 5 March, 1836. After admitting, in substance, the bequest of the negroes 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 that possession, in order the better to assert a right which he set up to a share therein (299) 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 agreement 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 1 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 the 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 to 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. *Page 248
The exhibits accompanying the answer both bore date 27 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 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 Joseph Duckworth, and not (300) made liable for thus suffering the negroes to remain in the defendant's possession, proceeded to 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 McNeill, upon recovery, should surrender said negroes, or account for their 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. Upon the hearing the right of the plaintiff to an indemnity 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 *Page 249 was insisted that the plaintiff might have enforced this indemnity (301) by an action at law upon the bond; that the bond was in the hands of the defendant, by his permission, and might have been had at any time, 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 where 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. The objection thus urged is not, properly speaking, because of a defect of jurisdiction. A defect of jurisdiction exists where courts of particular limited jurisdiction undertake to act beyond the bounds of their delegated authority (Green v. Rutherforth, 1 Ves., 471), or where a Superior Court of general jurisdiction passes upon subjects which, by the Constitution or laws of the country, are reserved for the exclusive consideration of a different judicial or political tribunal, as where the Court of Chancery in England undertakes to determine cases belonging solely to the cognizance of the king in council. Penn v. Baltimore, 1 Ves., 446. In these, and in cases like these, there is a plain defect of jurisdiction. The exercise of power here would be usurpation, for no 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 ungranted power, it ought to stay its action; and, if it does 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 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 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, 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 (302) 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 strict 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 *Page 250 between them. He shows 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 plaintiff, 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 to make 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.
The 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 1 March, 1838, to be $587.20. The report further states that the defendant denies this amount to be due, and insists that (303) he ought to have a credit for $357.37 1/2, 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 discharge brought before him, and report his final conclusion thereon, affording to the parties an opportunity of having that judgment reviewed for error upon specific exceptions. But the report, such as it is, has been confirmed; neither party has prayed for a rehearing 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, therefore, proceeded to ascertain the right in relation thereto.
Upon looking into the exhibits accompanying the report, it is manifest that the defendant is in great error with respect to the amount of the commissions which, in the suit 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 *Page 251 with the hire of the negroes for 1829, 1830, and 1831, and credited therein, altogether, with the sum of $323.88 1/2. 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 defendant'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 $367.37 1/2; but no further sum was allowed as commissions on the administration of his testator's estate since the death of Mrs. Duckworth. We are of opinion that the (304) defendant is entitled to the benefit of these commissions, because, in truth, 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 not 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, *Page 252 we direct the costs of taking that account to be paid equally by the plaintiff and defendant, and as to the other cost, that each party shall pay his own respectively.
PER CURIAM. Decree accordingly.
Cited: Branch v. Houston, 44 N.C. 87; S. v. Moss, 47 N.C. 69; Israel v. Ivey, 61 N.C. 552; S. v. Benthall, 82 N.C. 667; Noville v. Dew, 94 N.C. 46; Hardin v. Ray, ibid., 461; Southerland v. Fremont, 107 N.C. 573; Hilliard v. Newberry, 153 N.C. 107; Supply Co. v. Lumber Co., 160 N.C. 432.
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