A court of equity will restrain a person in the capricious exercise of his rights, for benevolence becomes a duty enforced by courts of justice, when its exercise is in no wise prejudicial to the party, and a want of it is injurious to another. Thus, when a person may get satisfaction out of either of two funds, and another can get satisfaction only out of one of them, and they are both equally convenient and accessible to him who may get satisfaction out of either, and nothing but mere caprice governs him in making the selection, there equity will restrain him to the fund not operated by the claims of the other; but if convenience and not caprice is his motive, the most that equity does is to substitute the disappointed claimant to his rights. The first is rarely done, for it is matter of extreme delicacy to restrain a person in the exercise of a legitimate right, in favor of one who has no claim upon him by contract, and whose only connection with him arises from being interested in the same common fund; yet where there is a fraud, moral or legal, or mere caprice, he will be restrained. The latter, to wit, substitution, is very frequently done, and is the foundation of marshaling assets in favor of legatees and simple contract creditors, and applies in cases where there is neither fraud nor caprice; it is sufficient that his fund has been exhausted by one who had a double means of satisfaction. The defendants call upon us, in this case, to restrain the complainants from interfering with Beck and her issue, and pray that (643) they may be turned over to the other slaves and their issue, which belonged to William Jones, the elder, so far as the rights of his vendors extended in said residue, they having sold one of the common stock or fund to him in severalty. And were it money or a flock of sheep or anything of the like kind, where value alone is to be regarded, and one fund is as accessible to the complainants as the other, so that the court could *Page 349 perceive that mere caprice or fraud induced the complainants to pursue the part in defendants' possession, the court might exercise the very delicate power before mentioned; but towards property of this kind it is far different. It is well known, as to slaves, we have our partialities and antipathies, regardless of their real value, and which may arise from feelings very different from those that debase the human heart; and a person who had right in common with another to a parcel of slaves might be actuated by other motives than mere caprice or fraud who refused to validate a sale made in severalty by his copartner of some favorite slaves. He might well say to the purchaser, Look yourself to the title of your vendor to the remaining slaves for compensation; it is sufficient that you should stand in his place and be substituted to his rights.
But there is another and perhaps stronger objection to the request of the defendant. This cause came on to be heard more than twenty years ago, and as to this question, presented the same aspect then that it does at present. With a full view of the case, the court, after dismissing the bill as to Zollicoffer, directed the remaining slaves to be divided among the representatives of William Jones, including Zollicoffer's vendors, that is, as if the negro Beck had never been. This double fund was therefore lost without any default of the complainants, and by a decree of a Court at that time of Supreme jurisdiction, and it cannot be presumed that the complainants fraudulently and voluntarily abandoned that fund as a means of satisfaction, with an intent capriciously to (544) pursue by a bill of review the negroes in Zollicoffer's possession; and therefore this double fund, which they once might have had for their satisfaction, has been lost, and that not by their default or consent, which cuts up the very grounds of the defendants' application. The exception must be overruled.
As to the advice asked by the master upon the accumulated rights of Zollicoffer's vendors on the death of some of the children of William Jones without issue, I conceive that such accumulation inures to the benefit of Zollicoffer, whether such children died before or since the sale to him, for certainly they can claim nothing in Beck or her issue, either by their then title or one subsequently acquired, they having sold her to Zollicoffer in severalty.
PER CURIAM. Judgment accordingly.
Cited: Weeks v. Weeks, 40 N.C. 119. *Page 350