5 Fla. 9 | Fla. | 1853
delivered the opinion of the Court.
William Bailey, as administrator cie bonis non of the estate of John Bellamy, deceased, brought his bill of complaint on the equity side of the Circuit Court against the appellant, David Barrow, and one Henry Doggett, for the purpose of setting aside an alleged sale and conveyance by the latter to the former, of all the grantor’s real and personal property in Florida, Us fraudulent and void as against creditors. The Court below made a decree in favor of the ■complainant, which will be hereafter noticed, from which the defendant, Barrow, has appealed to this Court. To a ■correct understanding of the merits of the present controversy, it seems important to advert to the history of the ■debt claimed by the respondent here to be due to the estate of his intestate; and also to the facts and circumstances which preceded and attended the sale and conveyance of the property, which is complained of. It appears that in January, 1839, Doggett purchased from respondent’s intestate a tract of land in Jefferson County containing 1203 acres, for the price of $20,000, payable in January, 1848, the interest on which sum, reserved at the rate of ten per centum per annum, was payable annually, commencing with the 1st of January, 1840, when the first payment of interest fell ■due. Doggett, however, was to have the privilege of pay
The affairs of Doggett, some tihie in this year, of perhaps prior thereto, became much embarrassed; It seem's he had become involved, as security and endorser for other persons, to a considerable fextent, and that some sixty or seventy thousand dollars Bad been coerced from him by this class of creditors, which had consumed all his available cash resources, while his individual cfédit'ors had been indulgent, and their claims had now become, by the increase of interest, very formidable and onerous in his view,- as they were in point of fact. The service of the attachment, it is said, added greatly to his mental distress. His embarrassments were enhanced by his infirmities, arising from his advanced age and disease, which tended to incapacitate
Early in the year 1845 -John Bellamy died, and administration upon his estate was 'committed to his son, William Bellamy, who catised the execution awarded on the 8th of November, Í843, in favor of his intestate against Doggett, to be levied on the slaves of the defendant in the County of Leon. Three other executions were also levied on the same property, and the sale thereof was advertised for Monday, the 7th of April, 1845; Doggett, prior to that day, viz : on the 29th day’ of March, after, as it is said, he had made, for a year previously, various efforts to sell his property, some of which will be noticed more particularly hereafter, concluded an agreement for a sale with the appellant, his brother-in-law, and a resideilt of the State 'of Louisiana, and who had been invited by Doggett to Elorida, for the purpose of extending relief to him, or of [purchasing the property. The conveyance bears date on the 3d of April, and was proved and recorded in the office of record for Leon County on the 5th, and in that of Jefferson County, on the 7th of April; By this instrument, Doggett, for a pecuniary consideration specified therein, bargains and sells, and conveys to the appellant, Barrow, his heirs and assigns, •&c., “ the whole of the property of the said Doggett of ev- “ ery kind and description whatsoever, lying, situate and “ being.within the State of Elorida,” and then proceeds to particularize, under a videlicit, the plantation in Leon County, containing 2000 acres of land, known as the Home Place; sundry detached parcels of land in the same County, containing in the aggregate 480 acres ; the plantation
Upon the execution of this conveyance, Barrow wentiisto possession of all the property specified therein except one servant, I-Iillyer, who was retained by Doggett, and, With the consent of Barrow, carried to North Carolina, Where be remains in the possession of the vendor. It is. this sale and conveyance which has given rise to the present bontroversy; but before the Court proceeds to the consideration of the question arising thereon, it is deemed proper first to dispose of the last point made in the argument of the appellant’s counsel*
It is contended on behalf of. appellant that the respondent, Bailey, is not in a position to claim the aid of a Court ©f equity* The general rule of equity undoubtedly is, that if a creditor seeks the aid of the Court against the real estate 'of his debtor, he must show a judgment at law creating a lien upon such estate; and if he seeks aid in regard to personal property, he must show an execution sued out and pursued to every available extent. Brinkerhof vs. Brown, 4 John’s Ch. R., 676; Shirley vs. Watts, 3 Atk. R., 200. And if respondent, Bailey, does not occupy the position of a judgment and execution creditor, he cannot have the relief he asks for, even if otherwise well entitled
In 1848, the residue of the principal sum falling due, ¡($15,000,) and the instalments of interest stipulated to be annually paid, remaining due and unpaid since the 1st of January, 1843, the respondent, Bailey., to whom administration de bonis non of John Bellamy had been committed, sued out a scire facias .to revive the judgment of 1843, sug* gesting a further breach in the non-payment of the aforesaid sums, and praying an award of execution therefor, according to the directions of the statute before mentioned; which writ was returned nihil; a second or alias writ, sued -out upon the return of the first, was also returned niMl, and thereupon, the two returns of nihil being considered equivalent to a return of scire feci, judgment of execution was .awarded for the sum of $23,859, on which the Sheriff has returned, u no property found.” It is now argued that the respondent has not shown a proper judgment and excution at law — that the jte on th q scire facias was rendered without any actual notice to Doggett., and is therefore simply void,
A scire facias is a writ necessarily founded upon some matter of record, and must issue out of the Court where that record remains. Tidd Pr. (8thEd.,) 1139, Foster Sci. fa., In some .cases, the issuing of the writ is the com
If it is upon two returns of nihil, then .that fact is stated and the default recorded, and execution being awarded, there is no judgment for the costs of the suit and proceedings therein.
Our statute, to which allusion was made upon the argument, provides for the mode and manner of serving original process, that which commences or institutes a suit for the first time; and is silent as to the service of mesne process, such as a seire jacias, which is the continuation of a suit already instituted. Resort must, therefore, be had to the common law for the rules to govern the subject; and on examination, all the books of practice inform us that two writs of scire facias, with returns of nihil to each, are deemed equivalent to one writ returned scire feci. See Tidd Prac., 1124, 2 Sellon Pr., 196, citing 2 Inst., 472, and Andrews vs. Harper, 8 Mod. R., 227; 2 Arch. Pr., 83, citing Yelv. R., 88-122. And this principle is recognized by the Courts of several of the States of the Union. In New York, in Cumming vs. Eden, 1 Cowen R., 70; in Pennsylvania, in Chambers vs. Carson, 2 Whart. R., 9; in Indiana, in Kearns vs. The State, 3 Blackf. R., 334; and in North Carolina, in Woodfork vs. Broomfield, 1 Murph. Rep., 187. In some of the States if is recognized by statute, wdth some modifications, as Virginia, Ohio and South Carolina. See Lee vs. Chilton, 5 Munf. R., 407,
It might be questioned whether, as the judgment of November, 1843, for $40,000, the penalty of the bond, was a subsisting judgment, standing by foree of the statute as a security for further breaches, if the proceeding on scire facias had been irregular, or if the plaintiff had sued out an execution on the judgment endorsed to levy the sum due thereon, without an effort to revive by sci.fa., itwould be an irregularity which the appellant here could take advantage of. In Moseley vs. Doe, ex dem. Edwards, (2 Fla. Rep. 429,) where an execution had been issued on a judgment, after the lapse of more than a year and a day, without revival by sci. fa., it was ruled by this Court, that it was an irregularity only, of which the defendant in execution alone could take advantage. But here it is wholly unnecessary to pass upon the question, as the proceeding on scire facias was strictly regular, according to the rules of law, and consequently the writ of fieri facias awarded thereon is a legal and valid process, which being returned nulla Iona by the proper officer, the respondent in the Court below was well entitled to seek the .aid of a Court of Equity.
The main question in this case is upon the sale and conveyance before mentioned, which is impeached as fraudulent and void as to creditors,
Our statute of January 28th, 1823, against conveyances “ to delay, hinder or defraud creditors,” (Thomp. Dig., 215,) is a transcript from the British statute of 13th Elizabeth, c., 5, which latter act has always received a favorable and liberal interpretation in all the Courts both of law and of equity, in suppression of the fraud. It declares all fraudulent conveyances to be void; and whether a conveyance
Proceeding to the consideration of this case, the deed of conveyance of the 3d of April, 1845, from Henry Doggett to the defendant, David Barrow* on its face is liable to no, impeachment; it conveys the property specified therein absolutely to the bargainee and his lieirs, and is sustained by a legal consideration expressed of $45,000, paid to the bar|-ainor, and of an annuity of $500 for his life. If it is. justly obnoxious to the charge of fraud, it must be so from those facts and circumstances which preceded and attended the transaction, as disclosed in the answer of the appellant, and established by the proofs in the cause. Let us-* then, briefly advert again to those circumstances. Doggett was at the time considerably embarrassed, in his, af
It is charged in the bill of complaint that the appellant well knew it would be impossible for Doggett to pay his debt to the estate of Bellamy, then due and to become due, after the transfer to him (Barrow) of all the property which Doggett owned in Florida. To this allegation, the answer is as follows: — “ It is not true that respondent knew, “ at the time of said sale, that said Doggett would be una- “ ble to pay all his debts, because said Doggett declared “ that he hoped and expected that he would be able to do “ so, as he owned a large estate in North Carolina, consist- “ ing of lands and slaves, &c., which he declared it was “ his purpose to sell to the best advantage, so soon as prac- “ ticable after he should arrive in said State.” It is claimed on behalf of appellant that the answer, in this particular, is not only strictly responsive to the bill, but is an unequivocal denial of the allegation. We cannot think so; we cannot regard it but as a qualified denial, and at best but imperfect as such. The rule with regard to the sufficiency of an answer to the allegations of a bill in equity, as stated by Ch. Kent, in Woods vs. Merrill, 1 Johns. Ch. R., 107, and recognized by this Court in Hunter vs. Bradford, 3 Fla. R., 285, is as4follows: — '“The general rule is, that to so “much of the bill as is 'material and necessary for the de- “ fendant to answer, he must sj>eak directly, without eva- “ sion, (and not by way of negative pregnant. He must not “ answer'the charge merely literally, but he must confess, “ or traverse the substance of each charge positively and “ with certainty; and particular precise charges must be “ answered particularly and precisely, and not in a gencr- “ al manner, even though a general answer may amount to “ a full denial of the charges.” See also Cowp. Eq. Pl., 313, 314, Mitf. Eq. Pl., 309, 316, Story Eq. Pl. § 852.
It is contended, on behalf of the appellant, that inadequacy of price is only objectionable, when so gross as to lead the mind to the conclusion that su’ch a sale was not intended to be bona fide, but only fictitious and colorable. Such is the principle when the inequality is relied upon as the sole ground of objection; and when it is ascertained to be of this gross and manifest character, relief is given upon the ground of actual fraud, the fact being regarded as demonstrative of some gross imposition, or some undue influence. Judge Story states the principle thus: — “Merein- “ adequacy of price, or other inequality in the bargain, is “ not understood as constituting, per se, a ground to avoid a “ bargain, in equity ; for Courts of equity, as well as Courts ct of law, act upon the ground that every person who is .“ not, from his peculiar condition or circumstances, under
In ascertaining the value of the property, as well as the price or consideration paid, the Court has reason to complain of the poverty of the proofs. This defect, however, is ’common to both parties, and but for the admissions of •counsel upon the argument, in aid of the data furnished by 'the record, we would have found no little difficulty in coming to a satisfactory conclusion. • Of the property conveyed, there were one hundred and seventy-eight slaves ; the value of those on the plantation in Jefferson County* one hundred and sixteen in number, is estimated by one
The plantation in Jefferson County is proved by Gov. Moseley to be worth from $6 to $7 per acre ; it contained, ineludingtho adjacent eighth of ''land, 712 acres. Taking a price between -the two sums given, say $6.50 per acre, the value will be - - - -, - $4,628
■The other personal property, consisting of 42 horses and mules; 4000 bushels of corn ; 22,000 lbs. of bacon, and other provisions; stocks of cattle •and hogs ; wagons, and other plantation tools and ■utensils, &c., &c., taking the valuation of Teat as to that on the Lake plantation, less the excess of 4000 bushels of corn, and estimating that on the Home place on the same basis, it will amount to .the sum of - - - - - $7,178
'The aggregate of which items amounts to - $60,756 which are all the values proved by the witnesses.
To the sum so found, may be added the value of the Home place, containing 2000 acres, which is not at all proved, but which counsel for appellant estimate at the price or value of $2.50 per acre, which certainly must be >a low estimate for a plantation on which was kept a gang •of 62 slaves, and a team force of twenty horses and mules for its cultivation; this will amount to the further sum
Adding also the several detached tracts of land in the vicinity of J;he Home place, described in. the deed, and containing, from description, 480 acres, the specific value of which, although- not proved, is now estimated at the same price, $2.50 per acre, making - - - r ? ■ $1,200
and the aggregate of these sums, . - - $6,200 added to the former aggregate, will make the value of the whole property, so far as proved and estimated, the sum of $65,756. The Court cannot but think that the value of the Home place is greatly under-rated in the estimate put upon it; and that, if proper care had beep exercised in the preparation of the cause for the hearing, the fact would have been demonstrated, and the aggregate of values com siderably increased. The deed conveys other lands, by the general description pf “ all the lands of spid Doggett lying and being in the County of Madisonand the same reipissness is found with regard to this property. There is no proof of quantity, quality, or value-, And so also the answer of the appellant admits that, although he declined to accept from Doggett a transfer of his contract for the purchase of the 1203 peres of land, and states that the same was .designedly omitted to be inserted in the pppvpy-r pnce,' yet he wept into possession of it, under Doggett, and occupied and cultivated 500 acres from the time of the purchase, and at the time of his answer, was still in possession. This use and occupation of 500 acres of land, so acquired in right of Doggett, was of some value, and may be fairly considered, as it is very plain, from the answer, the appellant considered it, an acquisition consequent upon the purchase of the estate, to a part of which it was contiguous.
The consideration of the purchase stated on the face of the deed, is the sumbf forty-five thousand dollars, paid at or before the execution of the instrument, and an annuity of $500 during the life of the vendor. The original answer, filed on the 20th April, 1819, responding to the discovery prayed for in the bill, states that “ the manner and times <£ of paying the said sum of $!5,000, was not set down spe- ££ eifically in writing, but was verbally agreed upon,” as follows, viz: $15,231.9! to be paid to Bellamy’s estate, and the sum of $2,395.98 to be paid to Noab Teat, which sums were to be paid in satisfaction of executions then levied, and were so paid ; the further sum of $5,000 was to be paid to Doggett, to be applied to the discharge of debts alleged to be due in North Carolina, and was so paid. to him; and the residue, amounting to $22,319/18, was to remain in the jDurchaser’s hands, without interest, until the same conid be applied, under the direction of Doggett, to the discharge of certain other debts, the am’onnt of which.
These debts are stated as follows : To Holbrook, Nelfcon & Co., of New York, about $2,550 ; to J. &. L; Branch, $1,250 ; To Long & Walker, $1000 : to John B. Doggett, about $250; to William D. Moseley, $1,261.24; to the Union Bank, stock bond and mortgages amounting to $16,* 800; and sundry other debts, amounting to $12,263.87 j find to indemnify John W. Ootten, in whole of in paft, a* gainst it note for about $15,000, .due to Dr; Mitchell, and on which Ootten was security fof said Doggett; But in no event were the payments made, and to be made, to exceed the sum of $45,000, specified in the deed ; and if the obli* gation could be discharged, with a less sum, the appellant was to be entitled to the residue, as a compensation for his trouble and personal expense in superintending the adjustment thereof; But by a supplemental answer, filed on of about the 20th of October, 1850, it is alleged by the appellant that there was a written agreement, exhibiting the terms of the said sale and purchase, and the manner and times of paying the said purchase money, which agreement had been, at the time, left in. the custody of Mr¡ Branch, one of his solicitors, who was absent when the Original answer was prepared, and the existence of the paper was utterly forgotton by the appellant, until found by Mr. Branch, and returned to his possession-. By this agreement, the sum of $45,000 was to be thus paid: In cash, $20,500; to Dr. J. W. Mitchell, a note on which Gotten is feecfirity, for between $15,000 and $16,000 ; and lastly, to pay a sum not exceeding $10,000-, in discharge of the debts due the Union Bank.
The answer also corrected Various fefrOfs in the payments alleged by the original answer to have been tnade to creditors. It is certainly extraordinary that the fact of
Proceeding in the examination as to the manner in which ■this consideration or price was actually paid ; it appears that the following sums were in discharge of the executions levied upon the-slaves, and which constituted a lien thereon : . .
To Bellamy’s administrator, for principal, in- , terest and costs, . - - $13,690.84
To Teat, for same, - . - - - 195.98
To Willis, for same, - - - - . 1,203.58
To Murphy, for same, - 463.51
Making - $15,559.91
And there was paid to Henry Boggett, to be applied to tbe payment o-f alleged debts [due in North Carolina, - - . - - $5,000
Certain other payments are claimed in the original answer to have been made, but 'at what time is not stated; neither are they stated' otherwise than from memory, the
To Messrs. Holbrook, Nelson & Co., - $2,550.00
To Messrs. J. & L. Branch, - - 1,250.00.
To Messrs. Long & Walker, - - 1,000.00
To the Sheriff, for John B. Doggett, about - 250.00>
To William D. Moseley, - - - 1,261.24
$6,311.24
And showing the entire cash payment to 'amount to $26,-. 871.15.
It is contended, on behalf of the respondent, Chat this, sum was all that Barrow really paid for the property ; that the estate, being large, must have yielded' a large annual income ; and having had possession of the jn’operty for five years before any other payment was made, the subsequent payments were made out of tbe issues and profits made lay him. The position is certainly plausible ; but the payment of the Mitchell debt, as well as tbe sum to tbe Union Bank, being secured by tbe written contract, it is sufficient to give Mm tbe character of a purchaser for value to that extent. (Seward vs. Jackson, 8 Cow. R., 454.) In addition to this, the Uffion Bank debt was due, by mortgage, on a portion of tbe property conveyed. But tbe payments so made are not to be computed as of their full amount, in ascertaining the value or amount of the consideration paid. The payment to Mitchell of the sum of $15,955 having
It was also stated on the argument, by appellant’s counsel, that at some period of time, intermediate the filing of the supplemental answer and the hearing of the cause in the Circuit Court, Mr. Barrow had discharged the debt due the Union Bank, by the payment of the sum of $8,500. Assuming this payment to have been made six years after the sale, and computing the value of that smp, so deferred, in the same manner, interest being calculated at 8 per cent, per annum, it will be found to be, at compound interest, $5,356.44, and at simple interest, $5,743.24, Taking the latter sum, and adding it to the former aggregate, it will make the sum of $44,047.01, which is the consideration price paid by Barrow to Doggett for the property conveyed, excluding the annuity, computed as cash, on the 3d of April, 1845.
To ascertain the entire consideration, the annuity is to be added ; and here, again, the Court must complain of the want of sufficient data on which to form an accurate judgment as to the value.
The only information is that furnished by the answer of the appellant, in which Doggett is described as “ diseas-, ed, old, infirm, and unable to superintend” his business; and, again, in another paragraph, e< as an aged and infirm
Upon the argument on this point, it was urged that, by the terms of the agreement between Doggett and Barrow, the latter was to pay, if necessary, to the Union Bank, a sum exceeding that actually paid of $1,500 ; and also that Mitchell claimed from Doggett a much larger sum than he recovered, and which Barrow had good reason to believe might have been recovered, and which he would, in such case, have been bound to pay; and therefore, this contiu
There is no rule in our law as to what disparity between the real value of the property and the consideration paid, will, in any case, constitute inadequacy of price; but the Court must ascertain this from the facts and circumstances of each particular case. We fully appreciate the difficulty of passing upon this question of inadequacy, and feel the full force of the remarlas of Ld. Ch. Baron Eyre, in Griffith vs. Spratly, (1 Cox R., 383,) that the value of a thing is what it will produce, and admits of no precise standard; that it must be, in its nature, fluctuating and
It will he recollected that, in the computation of values, by which the dispai-ity of $19,000 was ascertained, there-was included, in the calculation of the consideration paid, the value of the. annuity Settled upon Doggett, amounting; to $3,700 ; and there was also included therein the further sum, of $¿>,000, which was paid to Doggett upon the sale, to he, used, as it is said, for the payment of debts in North Carolina, hut of the application of which, or even of the existence of any debts in that State, on which a presumption of such application might he founded, there is no evN
From the facts and circumstances before alluded to, the purchaser must be taken to be privy to tbe intent, and so •far as tbe payment of $5,000-, and the payment for the annuity for four years, mentioned in the answer, should be postponed, if necessary, in favor of the complaining creditor. In Hawkins vs. Moffatt, (10 B. Monr. R., 81,) where a man greatly embarrassed sold all Ms interest in an estate, worth $1,169-, for the consideration of $465, in discharge of debts, and ten years board, and clothing for five years, to be enjoyed after tbe sale, it was held-to be-manifestly fraudulent, and was declared void as against creditors. The transaction, in that respect, presented no. stronger marks or badges of fraud than are to b.e found iii this case.
The decree remains to he- considered. At law, upon th© question of the validity of a deed, or other conveyance, the-Court can hold no middle course; it must he decided on the-single point of validity, and held to he either wholly good or wholly bad. If it is found to be fraudulent, tbe credit- or comes in and avoids it all, without- repayment of tbe consideration money ; but in Equity such is not the rule, except where actual fraud and covin are found to exist; Boyd vs. Dunlap, 1 John. Ch. R., 478; Sands vs. Codwise) 4 John. Ch. R., 536, 598. In-Equity, where a security or conveyance is found to he constructively -fraudulent, ifc is upheld in favor of one not guilty of any actual fraud, to
The decree pronounced in this cause, in the Circuit Court, seems to present an inconsistency in its several clauses. The first clause directs the arrears of the annuity secured to Doggett under the deed of the 3d of April, 1845, to be paid the creditor, William Bailey, to be applied towards the satisfaction of the debt due to the estate of his intestate, which would appear to he a proper direction, upon the assumption of the entire validity of the conveyance; while the second clause declares the same conveyance to be fraudulent and void as against the complaining creditor, and the property specified therein, and conveyed thereby, to be liable to his execution, and directs a sale of the whole or such part thereof, under the.
The following judgment was entered in this cause :
The Court having maturely considered the transcript of the record of the proceedings of this cause, and the arguments of counsel, and now being fully advised of its judgment, to be given in the premises, it seems to the Court here that the decree of the Circuit Court of the Middle Circuit, sitting as a Court of Equity, in and for the County of Jefferson, rendered in this cause, is erroneous, and should be reversed.
Therefore, it is considered by the Court here that the said decree be reversed and set aside.
And the Court here, proceeding to render such decree as the Court below ought to have rendered, for the reasons, and upon the considerations set forth in the opinion delivered herein, doth think fit and proper, and so orders and decrees, that the said deed of conveyance from Henry Doggett to the appellant, mentioned and specified in the bill of complaint, and other proceedings in this cause, and exhibited therewith, bearing date of the 3d day of April, 1845, is in construction of law deemed, and is hereby declared, fraudulent as to the rights of the complaining creditor, William Bailey, administrator, cle bonis non oí John Bellamy, deceased. And that, as against his claim, the said deed of conveyance be set aside as an absolute conveyance but to be valid to the extent of all such sums of money as have been in good faith advanced and paid, by the said David Barrow, on account of said purchase, and to stand,
And the Court doth further order, that said David Barrow, as to the property, real and personal, conveyed in and by said deed to him, be, and he is hereby declared a trustee for the benefit of himself and the said William Bailey, administrator as aforesaid 5 first, to reserve and receive for himself reimbursements for the sums of money advanced and paid by him as aforesaid; and secondly, to pay, satisfy and discharge such sum as may be found due for principal and interest, and costs, upon the execution awarded by the said Circuit Court in Jefferson County, upon scire facias, on the 27th of November, 1848, in favor of said William Bailey, administrator as aforesaid, against Iienry Doggett, after applying the nett proceeds of the sale of the land, made under the interlocutory decree of the said Circuit Court, passed in this cause on the 16th October, 1849; and lastly, retaining any overplus which may then remain for his own use and benefit.
And the said Court doth think fit further to order and decree, that it shall be at the election of.the said David Barrow to pay, or cause to be paid, tó the said William Bailey, administrator as aforesaid, or to his solicitor in this cause, the amount of his said debt and claim, principal, interest, and costs, on or before the first day of the next term of the Circuit Court of the Middle Circuit, to be held in and for the County of Jefferson, orto account before the said Circuit Court for the said property j and the issues thereof, as a trustee thereof, for the uses and purposes, and for the trust hereinbefore specified.
And this Court doth further order and direct, that if the said Barrow shall not pay or cause to be paid, to the said William Bailey, administrator, or his solicitor, the said debt aforesaid, on or before the expiration of the time lim
And this Court doth further order, that this cause be remanded to the said Circuit Court of the Middle Circuit, sifting in and for the County of Jefferson, and that this decree l^o certified to the said Court, and be entered on the record as the decree in this cause, and that such further directions, orders and decrees, be made by said Circuit .Court in this cause, as may be requisite and necessary to cany out and make effectual the decree rendered herein i and also such other and further proceedings be had in this cause, as may be consistent with the opinion and decree of this Court, and in conformity with the usual course of j>ro.ceedings in Equity.
And this Court doth further order and decree, that in .this Court, each party pay his own costs, to be taxed by the clerk.