Volume 1 — Tennessee Reports

<p>Jurisdiction of Superior court can only be taken away by express negative words.</p>

Appeal.-Gillaspie obtained an original attachment against Thomas Green; Clark became security, and Green replevied the property. Green left the county; judgment was had against him; a fi. fa. issued, upon which the Sheriff returned nothing found. A sci. fa. issued against the defendant to which he pleaded that no ca. sa. had been issued against Green. To this plea, there was a demurrer, and joinder.

Appeal-The Appeal was brought up by the appellee, within 15 days preceding the term, and now Overton for the appellee, moved for an affirmance of the judgment below, with the addition of 12 1-2 per cent interest, and double costs, agreeably to act of assembly, for failing to bring up the appeal, and prosecuting the same with effect. This being a new case, the court requested it to be aruged. No instance of the kind had occurred, west of Cumberland-Mountain.

Ejectment—The Plaintiff claimed under a grant for a pre-emption right. The defendant under another pre-emption right, for which a grant issued to the heirs of Murray.- The defendant claimed under the oldest entry, but the youngest grant. The question in this case depended upon the manner in which the surveys were made.

BROWN entered and surveyed a tract of land of 640 acres, within the limits of the grant, under which Sullivan claimed.

Bill in Equity.—The plaintiff claimed by a deed of conveyance from Bradley whose claim is founded on the folowing entry of a pre-emption right, No. 370 March 23, 1784, Edward Bradley enters a pre-emption of 640 acres of land, lying on the head of a branch that runs into Stone's river, about one mile above the Station, including the Cave spring on the north side of the trace marked E.B. upon which a survey was made August 10, 1790, and a grant issued, Nov. 27, 1790, No. 348.

Trespass.—The defendant was employed by the plaintiff, and lived with him as an Overseer. The Plaintiff being from home, the defendant ordered a negro the property of the plaintiff, to catch a horse and go with him to the race paths. which were in the neighborhood, for the purpose of straining the horse and ascertaining his speed. The negro obeyed and started the horse, the defendant being present.

Equity.—This bill was filed for the purpose of setting aside a grant issued by the state of North-Carolina to John Ford, upon a charge, that the entry of Ford had been so erazed and altered by antedating as to destroy its validity, The bill further charged that the grant to Ford had been altered in the certificate of the surveyor, where he recites the entry, making it the year 1784 instead of the year 1785.

Certiorari.—This was an action upon an implied assumpsit. It appeared in evidence that a young man hired by the plaintiff to work on his plantation, sold him a crop of corn, which was at the house of the defendant’s brother, where the young man had cropped the year before. The plaintiff had paid a considerable part of the purchase money, and took from the crib of Sims a few bushells of corn.

moved for a continuance on an affidavit, which stated that the defendant made application to the county court of Hawkins, for an alteration of his grant agreeably to an act of the State of Tennessee, entitled “An Act making provision for mistakes in surveys of land” 1796, ch. 20, which was allowed. This act directs that the alteration should be certified to the Secretary of N. Carolina.

Attachment. Levied on a tract of land, known by the name of the Blue Spring tract. Judgment by default, and writ of inquiry. produced a covenant from Andrew Belfour the deceased, to John Johnston the plaintiff, conditioned to convey a lot in Greeneville, on Johnston’s paying to Belfour $150.

The issue made in this cause was withdrawn by consent at last term, as being insufficient to determine the merits of the action, and it was agreed between the counsel to make up another issue before this term so that it might be tried. The replication was not filed until after the commencement of the present term; and now. insisted that the cause should be tried.

Detinue for sundry Negroes.—To this action the defendant pleaded non detinet, and the statute of limitations. Replication and issue on the first plea, with a replication of infancy and coverture as to the second, rejoinder and issue.

<p>A Grant founded on an entry made in a county office after the act of 1778, for lands lying west of Browns line is void.</p>

moved for a continuance. objected, and produced the affidavit of the defendant in support of the objection.

Equity. The Bill in this case was ordered to be taken pro confesso, in the year 1801, in consequence of the defendant’s failing to file his answer. At the next term it was ordered to be set for hearing and by consent of parties was continued from that time until the present term.

Equity.—Injunction. The statement in the bill shewed, that the parties had a conversation upon the subject of running their horses, upon which the defendant began to keep his horse for the purpose, and proposed to the plaintiff to enter into bond with security, which the plaintiff refused, telling the defendant he considered it nothing but a frolic ; that he did not keep his horse at all, believing that the defendant would not run; particularly as he understood the defendant…

In Equity. The plaintiff’s testator Hamlin and the defendant, on the 14th of August, 1792, entered into articles of agreement signed and sealed by each party by which it was agreed to make an exchange of lands—The plaintiff agreed on his part to make the defendant a conveyance to 250 acres of land, which he owned and upon which the defendant then lived, by a certain day.

Ejectment.—Rule of a former term to shew cause why a new trial should be granted upon the following case. The evidence for the plaintiff shewed that the land in question, was included within the lines of a grant as amended under the act of assembly, March, 1796. C. 20.

When this suit was called, Lowry, the plaintiff’s attorney suffered a non-suit, & obtained a rule to shew cause why it should be set aside. Upon its being called again on one of the argument days, the plaintiff’s counsel suggested to the court several reasons for setting the non-suit aside.

Certiorari.—On the fourth day of the term, a rule was entered to shew cause why the certiorari should be dismissed. Upon examination of the proceedings, it appeared the certiorari had been returned the term before the last; but no supersedeas was returned. An appearance had not been entered; nor did it appear that any notice had been served.

A judgment was obtained before a justice of the peace. The defendant, it appeared from the petition. wished to avail himself of the plea of plene administravit, before the magistrate, but he proceeded to give judgment. He applied to two justices of the peace, for a certiorari to the county court, under the act of assembly, but they declined granting him one, thinking it an improper case for the allowance of such writ.

Scire Facias.—Trimble for the defendant, moved to quash the writ upon two grounds, 1st. It appears by the return of a fi. fa. that the judgment has been satisfied, and consequently there is no judgment to authorise the writ. 2nd. Admitting it was not the case, an execution may issue upon the judgment, one having been taken out within a year and a day. 2 Sellons Pratice 277, Tidd’s Practice 1004. cited Morgan’s attorneys vade mecum 104.

Ejectment.—Williams for the plaintiff moved, that the defendant might not be admitter to defend upon the terms expressed in his plea, in which he agrees to confess lease entry and ouster, of all the lands described in his, the defendant’s title papers, and cited Runnington’s Eject. 476.

<p>If in a criminal case the state applies for a continuance cause must be shewn on affidavit.</p>

Equity.—The plaintiff purchased a tract of land of the defendant on the north side of the river Holston, including a bend called the steep rock, at four dollars an acre, estimating the tract at a thousand acres ; bonds were exchanged on the ninth of May 1798. The plaintiff gave his bond, payable in two instalments, 15th March, 1799, and first of April, 1800.

<p>Appeal. A suit was commenced before a Justice of the Peace, upon a covenant or article of agreement between the plaintiff and defendant, in which it was agreed that the defendant had rented a field or plantation, not specifying the quantity of land leased.</p> <p>The defendant covenanted to pay the plaintiff for the rent, two dollars and a half per acre, and that if he did not pay that rent, he would pay one thousand dollars.</p> <p>The cause was removed to the county court, by certiorari, where a judgment was obtained by the plaintiff, and removed to this court by appeal.</p> <p>objected against these articles of agreement going to the jury as evidence, because a Justice of the Peace had not jurisdiction of the cause of action. If the defendant failed to pay the rent, the plaintiff must have brought an action of debt for one thousand dollars. A Justice of the Peace has jurisdiction as far as fifty dollars only, and therefore could not take cognizance of this demand.</p> <p>—An action of debt could have been maintained for the two dollars fifty cents an acre, which shews that a magistrate may entertain jurisdiction, as such an action would not sound in damages. But if it were not the case, the defendant should have taken advantage of want of jurisdiction before; he now comes too late.</p> <p>None but an action of debt for one thousand dollars can be maintained upon this instrument of writing. The proceedings before a Justice of the Peace, according to the uniform custom of the country, are ore tenus. In all probability this ground was insisted on, not only before the magistrate, but in the county court, but without effect. There was no other opportunity, but to bring the case to this court by appeal.</p>

Certiorari.—A suit was instituted in the county court of Knox, by Denton against M’Daniel, in which the defendants were special Bail.

<p>Practice in Equity on Bills to foreclose.</p>

Application to the court to make up issues of fact under the act of Assembly to regulate the proceedings of the court of Equity, and for amendment of the law (1)

<p>Six months allowed to infants after coming of age to impeach a decree.</p>

read a petition for a certiorari to bring up the proceedings of the county court of Anderson, in this cause. Per Curiam. Let the certiorari and subpoena issue. said, he hoped the court would not make such an order as would preclude exception hereafter.

stated that the appeal was brought up to this court by the appellee, since the expiration of the time allowed by law to the appellant to file the transcript in the clerk’s office of this court, which is fifteen days before the commencement of the term.

<p>Equity. The bill had been taken pro confesso, against the defendants.</p> <p>It was moved by Whiteside and Stewart, for the plaintiff, that a decree should be passed agreeably to the prayer of the bill, and the facts stated.</p> <p>The bill states a contract which ought to be proved so as to enable the plaintiff to obtain a decree. This case may properly be assimilated to a writ of enquiry at law, where it has always been conceived necessary to substantiate the demand by proof.(8) In 1 & 2 Atk it is laid down as law, that the rules of this court are the same as those of a court of law, in this respect. (9)</p> <p>In courts of law, we even find, that it has been thought necessary upon the execution of a writ of enquiry, that a note without seal should be proved. It appears clearly from Vernon that the practice in chancery was, to require proof upon pro con fesso. It is true Piere Williams lays down a different rule, but the ancient one is certainly much the most reasonable, compatible with the liberty of the citizen and principles of the common law.</p> <p>But in England, there was not so much reason for requiring proof as here. By the law of England a bill cannot be taken pro con fesso, unless in two instances. 1st. Where the writ has been served and the defendant fails to answer. 2nd. Where a debtor to avoid the demand of his creditor, or process of law absconds. In both instances, there is great propriety and justice in considering the bill as true. In this country, our practice is entirely different. Here a bill can be taken pro con fesso against a non resident, on whom no process has been served, & who perhaps never heard of an advertisement in a gazette, citing him to appear. There are a variety of cases in the books which shew, that the courts considered it necessary to make proof so as to authorize a decree. 5. Com. Dig. 558. 9. Bart. 233. 4. & 5. 5. Com. Dig. 562. shews what is necessary to be proved upon a writ of enquiry at law. 2 Ver. 696. 2 Ver. 389, 540, 404, 308 2. Com. Dig. 311. 312. 308 and 2 Vent. 161. exhibit a cursory view of the practice in chancery, in this respect.</p> <p>It was further insisted that the act of 1782, c. 11. contemplates in every instance the service of process. The act 1787. c. 22. the first act which authorises a decree against a non resident—but this as in England was predicated upon an idea of the defendants absconding; these acts embrace the two principles which have obtained in England. The 2d and 15th sections of the acts of 1801, c. 6. convey the meaning of the legislature, in this respect, and shew that proof is necessary upon an ex parte hearing.</p> <p>relied upon 2 Piere Williams 556. and 2. Eq. Cas. 179.</p>

<p>Ejectment, Plea not guilty and issue.</p>

<p>Inassumpsit bro't by the vendor of a negro warranted sound to recover the price, the defendant may give in evidence that the negro was unsound in mitigation of damages.</p>

This was an action of detinue for a negro girl named Diley, plea non detinet.—The plaintiff's case as it appeared in evidence, was, that Michael Harrison who owned the negro made a bill of sale to the plaintff for her, together with several others and a house and lot in Jonesborough, dated the 12th of April 1798. Harrison was married to the daughter of the plaintiff.

Ejectment plea not guilty. The plaintiff claimed under a grant for 640 acres made to Mary Asher, dated March the first 1797, and registered May 25th, 1798. It appeared from the copy of a record produced that Mary M’Cloud, was indicted in Hamilton District for an assault and battery, in which Mary Asher was prosecutrix; the defendant was found not guilty, and the prosecutrix taxed with the costs.

<p>The defendant upon affidavit moved for the continuance of this cause. Upon argument the affidavit appeared to be equivocal in one part.</p> <p>asked for leave to amend, so as to explain.</p> <p>opposed this motion.</p>

<p>James Newel, of Virginia, gave his note to James Bryson for 1875 pounds of bar iron. The defendant undertook to collect this note and account to the plaintiff. The plaintiff proved that the defendant had collected it. The defendant proved that bar iron had sold low for cash, and insisted that the jury should estimate the value of the iron at the lowest cash price.</p> <p>It was also contended, that the jury could not give interest agreeably to the act of assembly, 1786, c. 4.</p> <p>The act declares, that all bonds, bills, notes, bills of exchange, liquidated and settled accounts signed by the debtor, shall carry interest.</p>

Ejectment. The lessor of the plaintiff produced a grant to James Disart, upon a fifty shilling warrant for 640 acres; the grant was dated on the 29th of July, 1793 and registered the 21st of December following No. 423; a deed from Disart to the lessor of the plaintiff, dated the 10th of November 1795. The defendant did not produce a title but relied on his possession, and shewing the weakness of the plaintiff claim.

This was an appeal from the county court. Trimble for the appellee. moved to dismiss the appeal ; no reasons having been returned, under the authority of the provision contained in the 63d section of the court law, (8) which provides that be- fore the granting any appeal whatever the attorney praying the same, shall certify to the court in writing reasons for his motion, with his opinion that the same are good and sufficient in law, why such appeal ought to be granted ;…

The defendant had given a promissory note to the plaintiff which did not express any time of payment. The question was. whether the note should be considered as payable on demand under the act of assembly, 1786. c. 4.

Ejectment, plea not guilty. The Lessor of the plaintiff derived his tide from a grant issued to Thomas King for 640 acres of land, dated the 8th of April 1794, and registered the 4th of April, 1800. A deed from King to Miller dated February 11th, 1802, was produced, and also another grant for 640 acres, dated April the 30th, 1803.

When the jury were called to the box, Miller the plaintiffs counsel, suffered a nonsuit, and obtained a rule to shew cause why it should be set aside.

<p>Ejectment, Rule to shew cause why a new trial should be granted; Joseph Cobbs affidavit was read stating that he was the real owner under whom the defendant Williams claimed; that it was not in his power to produce his grant, at the trial it being in the possession of John Adair; in consequence of which his tenant could not shew any title on the trial; and that he believes if lie can get a new trial, he can satisfy the court and jury that he has the best title: That Zachariah King who lives in the state of Kentucky is a material witness for him; that he believes he can prove by King, that E. Walling, shewed another tree as the beginning corner of the plaintiff, and finally, that he has discovered evidence since the trial which in his opinion will prove E. Walling, the material witness in this case, to be interested.</p> <p>stated that any cause which could authorize the court to set aside a nonsuit, would be sufficient to grant a new trial. There have been two cases, in which non suits have been set aside during the present term, upon less substantial grounds, than are disclosed in this affidavit. The cases to which they alluded were those of Sharpless against Sevier and Harrison, and Lewis’s Lesse vs. Moore, &c. which they stated at length and reasoned therefrom.</p>

John M'Kim junr. and Benjamin Comegy's, executors of the last will and Testament of John Davis deceased. Theoderick Bland and Sarahhis wife. Elizabeth Glen Davis, and Jacob Davis infants under the age of twenty one year, by said Sarah their mother and next friend. Complainants. AGAINST Alexander Fulton, James Fulton, John Lowry, Robert Gant. James Houston, Josiah Nichol, Thomas Humes, David Deaderick, Thomas E. Waggamen, and George Michael Deaderick defendants.

In equity. Campbell, of counsel for the plaintiff moved that the cause should be opened for final hearing. objected, and observed, that it was not in a state for hearing on account of the death of one of the defendants, against whose representatives, it had not been properly revived.

Ejectment. Common rule, not guilty, and issue. The lessor of the plaintiff, claimed under a grant from the state of North-Carolina, to Stockly Donelson, for fifty thousand acres of land, dated the first of January, 1795. and a deed from Donelson to the lessor of the plaintiff, dated 12th August, 1797.

The lessor of the plaintiff claimed under a grant to himself, which expressed a consideration of ten pounds per hundred acres, dated Sept. 20th 1787. No. 290, for 470 acres.

In this case an order for taking depositions had been made by consent, without stating in the order the names of the witnesses whose depositions were intended to be taken. The notice given was to take sundry depositions of witnesses.

The action was founded upon a bill obligatory. The jury asked the advice of the court, as to their mode of finding, so as to make it accord with the act of assembly, allowing twelve and an half per cent upon all judgments, brought up from the county courts, which shall be affirmed in the superior.

Rule for new trial. This was an action upon the case, plea non assumpsit. M’Farlane, had purchased a negro woman of the defendant, for a full price and took a bill of sale warranting the property of the negro. This was an action upon the case, in the nature deceit, for that the defendant assumed upon himself that the negro was sound, when in fact she was not.

Equity. An issue had been directed by the court in this case, to ascertain whether the defendant ought to have recovered at law, and what sum.

<p>No motionis necessary to retain a bill after a dissolution of an injunction.</p>

Appeal. Whiteside, for the appellant, moved for a rule upon a suggestion of dimunition, to shew cause why a certiorari should issue.

When this action was called a non-suit was suffered, and now Whiteside, moved to have the cause reinstated, upon an affidavit, shewing that the cause was called, one of his material witnesses was absent; that he himself was also absent, upon necessary business.

<p>A mis-trial after two continuances have been granted the defendant, places him in no better situation on an application for a third continuance.</p>

Detinue for a negro man slave named Andrew, plea non detinet and issue, The defendant Absalom Hooper, the father of the deceased owned the negro in dispute—Colonel Taylor, a witness, testified that he knew the negro, when a boy about eighteen years ago, then in the possession of the defendant; that the witness wished to purchase a mare of the defendant about that time; who told him that the mare was his son’s. Soon after this conversation the defendant told the witness, that…

Covenant, pleas—covenants performed,non infregit conventionem, and issues. The defendant covenanted to convey a certain tract of land to the plaintiff; the plaintiff agreed to look at the land and if he liked it, he bound himself to take it; but if he did not the defendant was to pay him four hundred dollars.

<p>Covenant. At the last term, the defendant obtained one month to plead—pleading issuably. The defendant pleaded covenants performed generally, and covenants performed specially; to the first plea, there was a replication, and issue; to the second, a replication; but no issue, until this term when the plaintiff joined issue.</p> <p>objected to the trial of the cause; the second issue being of this term; and consequently, could not be tried until the next, and cited the case of Lucas vs. Sevier, at Jonesborough.</p> <p>urged that it would be attended with mischievous consequence, if the defendant was permitted to evade the order, allowing time to plead in this manner. He was bound to plead issuably, so as not to delay the trial; and he certainly will not now be permitted to tell this court that in consequence of his non-compliance with the order he claims a further day for the trial. Rich. Pr. 106. Shews what pleas are good, under such an order. It is not necessary, that it should be the general issue; the statute of limitations has been considered as an issuable plea.</p>

Petition for a certiorari and supercedeas. Notice had been given by the defendant that a certiorari would be moved for. opposed the motion, and offered the affidavits of several persons, to shew that the statements in the petition were not true. said, that the ease of Beck, vs Knab, had decided this principle, though in that case, the application was to read the affidavit of the person against whom it was obtained, yet the reasoning adopted by the court, went to the…

Equity. In this case a subpœna had been served, but the answer had not come in. moved to dissolve the injunction upon two grounds: 1st. The want of equity in the bill. 2d. The only dispute between the parties is respecting $12, which is below the jurisdiction of this court. By act of assembly this court cannot entertain jurisdiction for any sum less than $50. A motion to dissolve cannot be heard, until the answer comes in, for until that time the defendant is in contempt.

The plaintiff claimed under a grant to Parker, dated 20th May, 1793, upon an entry dated June 7th, 1785. The defendant shewed a grant to Isaac Moore, dated September 15th, 1787, upon an entry dated 16th of April, 1785; deeds from the patentee to Harman, from him to his brother, and thence to the defendant.

Trespass. Quare clausum fregit, in part of lot No. 9, in the town of Nashville, setting forth the abuttals and title. It was contended by the plaintiff's counsel, that it was not necessary in order to maintain trespass, that the plaintiff should shew title; bare possession is sufficient.

<p>Injunction against building a mill will be granted, if it appear that the complainant will be injured thereby.</p>

In Equity. Bill to foreclose. Part of the land, respecting which this bill was brought, lay in Virginia, and part in this state. The bill prayed, that the part lying in this state, might be vested in the complainant, with a general prayer of other and further relief as usual.

In Equity. The bill stated that the plaintiff S. Wilson, senior, was entitled to two tracts of land of 640 acres each, upon county entries, No. 13, for 640 acres of which 513 1-2 acres were granted to him; another entry of 640 acres, No. 946, transferred to the senior plaintiff, of which 615 acres were granted to the plaintiff senior.

Ejectment. For the plaintiff was produced a grant from the state of Virginia. Whiteside objected to the reading of this grant relied on the act of 1803. c. 58. s. 2. which declared that certain grants from the state of Virginia, should be as good and valid as if issued by North Carolina. The court must be satisfied that this is a good grant, according to the laws of Virginia.

<p>Money levied by a sheriff by virtue of an execution cannot be attached in his hands.</p>

In this case there was a deed produced from John Read to the plaintiff, which contained a clause general warranty. An affidavit was read stating that the plaintiff had not the original grant, nor power over it in order to let in the evidence of a copy ; objected that the affidavit did not shew but that the plaintiff might have power over it.

<p>A purchaser at Sheriff’s sale is not bound to produce the original Grant.</p>

<p>Ejectment. A sheriffs deed was produced, which recited a judgment obtained the 21st or August, 1798, the record produced, shews a judgment recovered February term, 1799, in Sullivan county court. The record was certified thus; “a copy A. B.clerk,” &c.</p> <p>Miller, objected to the reading this record and deed. First, the certificate of the clerk is not sufficient. He should state that as clerk, he certifies the record of a certain suit. From the deed it evidently appears that there was no judgment to warrant the execution under which the sheriff sold, and the plaintiff bought. There was a judgment between the same parties in February, 1799, but this is not the judgment which is recited in the deed.</p>

The defendant gave a note to Wm. Ridgly, about the month of February, 1784. This note appeared to have been assigned to the plaintiff on the 27th August, 1787. The word August appeared to have been inserted in lieu of the word September, which seemed to have been erased—There was proof that this alteration was not on the paper when it came into the plaintiff's hands. The writ issued in June, 1802. Plea non assumpsit infra tres annos.

Indictment for horse stealing a capital offence.* On monday in the second week of the term, the defendant was brought out, and charged; upon being asked if he had counsel, he answered that he had not; that he was not able to employ any; that he had been speaking to Mr. M'Campbell, who had not as yet undertaken for him; upon which the prisoner had a short conversation with Mr. M'Campbell, who informed the court, that he had been retained by the prisoner as his counsel and…

<p> Indictment for horse stealing. </p>

Trespass quare clausum fregit, plea, liberum tenementum. For the plaintiff was shewn a grant, issued by the state of North Carolina, to Alexander Outlaw, for 400 acres of land, upon a warrant from John Armstrong’s office. No. of grant 759; a deed from Outlaw to the plaintiff, for the same land dated July 15th, 1800.

Detinue for two negroes. Judgment for the negroes or their assessed value, in case they could not be had, and damages for their detention, had been obtained. Upon this judgment a distringas for the negroes detained issued, and a ca. sa. for the damages. The sheriff returned, he had committed the defendant upon the ca. sa. and levied the distringas upon some negroes, and a house and lot.

<p>Dickinson had moved to dismiss an appeal from county court of Davidson.</p> <p>The case was, that there had been a plea in abatement in the county court, to which there was a demurrer. The plea was overruled and judgment of respondeas ouster, from this judgment the appeal was obtained.</p>

<p>A Magistrate has no authority to issue subpoenas requiring the attendance of witnesses at county court in criminal cases 3 Binn. 277. 417.</p>

<p>Death of the principal after the return of a ca. sa. discharges the bail. Quere.</p>

<p>In an action against a Sheriff for selling real property to satisfy an execution when personal property could have been had, it is incumbent on the plaintiff to shew,that he had personal property known to the sheriff on which he could have levied.</p>

Pettit Larceny—Appeal from Anderson county court. The prosecutor since the trial in the county court died. The attorney general offered to prove, what the prosecutor deposed in the county court. objected and relied upon the constitution, which provided, that the witnesses should be confronted with the accused.

<p>That the defendant in ejectment against whom a verdict has been obtained has since the trial discovered that the grant under which the plaintiff claims was fraudulently obtained from the State, and since the trial he has also discovered that a prior grant for the land had issued to a third person, are not sufficient causes to authorise the the granting a new trial.</p>

<p>Vide this case anti pa.</p>

<p>The heir may maintain ejectment against the widow who continues to res de in the mansion house after the death of her husband, altho’ he has assigned her her dower.</p>

The land had been sold at sheriff’s sale under a judgment against the defendant and the lessor of the plaintiff became the purchaser. The judgment and execution were shewn, and among other title papers in order to shew a title in Wilson, a deed from Nicholson and co. by John M. Carrick attorney is fact.

<p>A deed proved may be read in evidence without registration ; a conveyance executed since issue joined, is evidence for the defendant in ejectment. A deed made by an executor is good, tho' the testators bond to make a title be not recorded.</p>

There had formerly been entered on the docket within two terms a suggestion of the plaintiffs death and this suggestion had remained upon the docket one or two terms, having been continued at each court. It was now moved that the suit should be revived in the name of the representative.

In this case a record was produced from the court of chancery, in a district of Virginia, between the same parties, and for the same cause from which it appeared, the chancellor had ordered, that upon the defendants there giving security to the amount of the claim of the plaintiff, that the attachment should be dissolved, which was accordingly given.

A jury had been impannelled and sworn at the last term, to try some issues of fact. They could not agree, nor would the parties consent to a mis-trial, so that the jury continued until the end of the term without agreeing, nor was any verdict returned.—Upon the suit being called at this term, it was insisted by the defendants counsel, that the jury must appear by the record to have been disposed of. From the record it appeared that a jury had been sworn, and nothing more.

An action had been brought at law, upon a note given by the plaintiff and Lewis Harmon, to John Shawn, the first husband of the wife of the defendant, for l.180. The bill stated, that through mistake, 525 bushels of corn, at 2s per bushel, which had been accounted for, was included in this note, and prayed to be relieved as to this mistake.

The plaintiff produced a grant dated October 25th, 1802. upon a survey made February 12th, 1801.-The defendant deduced his title from a grant to King, thence through several conveyances to Andrew Jackson, and from Jackson, by Charles M'Clung, his attorney, to Holt the defendant, by deed dated the 11th day of July, 1801, which was acknowledged before a judge in November 1806, and registered in May 1807.

Joseph Dunham, by his attorney, complains Benjamin C. Parker, in custody of the sheriff, &c. in a plea of trespass on the case, for this, that where as certain John Hacket, on the 28th day September, 1787, obtained a grant from the state of North Carolina, agreeably to the provisions of the act of the general assembly in such cases made and provided, for the quantity of eight hundred acres of land, on the north side of Clinch river, including the place called Dunham’s…

In Error. The writ was in debt upon an assigned bond, and after an alias, a judicial attachment, upon the return of which, it was agreed to plead and try at next term.” The defendant then pleaded in abatement which was overruled ; he then pleaded nil debet ; demurrer, which was overuled, and withstanding, the court gave judgment for the plaintiff.

Galley was a constable, in whose hands accounts were placed by the plaintiff for collection. An attachment was taken out, and before any judgment, obtained the money was paid to the constable amounting to about $60.

In Error. Trespass, assault and battery by defendant against the plaintiffs. They severed in pleadings, each pleaded not guilty, and issues. Against M'Daniel a jury was sworn, and assessed §14 damages. The counsel for Wooten then moved to have the suit as against Wooten struck off the docket, which was accordingly done by the court below, and the defendant discharged, to which there was a bill of exceptions and a writ of error to this court.

The defendant was the sheriff of Smith county, to whom an execution had issued against the property of James C. Mountflorence, upon which he had sold land for several hundred dollars more than the execution. This ballance was by the return of the sheriff, stated to have been applied to a claim by an attachment against Mountflorence. Under these circumstances, the execution of the plaintiff come to the hands of the sheriff, who returned specially the above facts.

He was committed for stealing goods out of Porter’s store in Carthage. There was no attorney general, nor any person to prosecute for the state.

Debt upon a bond conditioned for the conveyance of a tract of land. The declaration set out the condition, which was not usual. Plea, payment and issue.

James Doherty gave a note dated 28th of May, 1798, payable in ten days to the defendant, who assigned the same to the plaintiff, on the 14th day of March following-Suit was commenced in the county court by the plaintiffs against Doherty on the 15th March, 1799 ; at April, 1800, judgment was recovered ; and fi. fa. issued to July, 1800, The sheriff returned “ satisfied except as to costs.

Case. The second count stated an order drawn by the defendant on William Love, the plaintiff, in favor of Abner Bush, for a horse, stating that he would be security for the payment of the horse.

In Equity. The Plaintiff purchased 400 acres of land of the defendant, to be within four miles of Duck river ; upon this purchase he paid a part, and gave his note for the balance. Upon this note a judgment had been obtained. The object of the bill was to enjoin this judgment,and further relief.

In Equity. The bill stated articles of agreement obliging the plaintiff to convey a tract of land upon the payment of a certain sum ; that the plaintiff lived in Kentucky, and defendant here ; avers, that he wrote to the defendant that he was always ready to convey, if he had the courses, which he wished to be sent to him ; that the defendant promised to do so, but never did-that the defendant brought a suit against him by attachment, and recovered judgment without his…

Action upon the case against the defendant as an indorser of a promissory note. Plea, non assumpsit and issue. The note was executed in December, 1801, by William Hickman, payable a few days after date ; the defendant indorsed it to the plaintiffs in August, 1802, and in August, 1803, the plaintiffs made demand of payment without effect. It appeared that all the parties to this transaction lived in the same town.

<p>On the first day of the term Marr moved for judgment by default, as no plea had been put in.</p>

<p>What covenants are mutual and independent.</p>

Covenant upon a bond for the delivery of 200 bushels of corn at a particular place. Plea, non est factum. The defendant had confessed he owed the plaintiff a quantity of corn, and the witness said he believed it was 200 bushels, but did not state how he owed it, whether by bond or otherwise.

Action on the Case. The defendant sold a negro slave to the plaintiff, and gave him a bill of sale warranting the title ; but there was no warranty as to the health of the slave. It was proved that she was a fool, and that the defendant knew it before the sale. This testimony however was objected to, on the ground of its being verbal, and would vary the written contract or bill of sale, and to support this objection were cited Esp. N. P. 96. 4 Rep, 81. 1 Com.

<p>In Equity. Judgment had been obtained in North Carolina against the plaintiff, upon which suit was brought in this state, and judgment recovered, to enjoin which, this bill was filed, and to this bill it was demurred.</p> <p>1st. Because a judgment in another state cannot be examined here.</p> <p>2d. Admitting that it can, under the circumstances of this case, the court will not do it.</p> <p>As to the first, that the plaintiff in this court had his remedy at law, were cited 3 Atk. 223-4. 1 Bro. Ch. C. 305. 3 Atk. 740 2 P. W. 424 to 427. By the constitution of the United States, Art. 6th, full faith and credit shall be given to the records and judicial proceedings of other states. Swits. Ed. L. U. S. vol. 1, page 15 and 16. The act of congress which prescribes the method of authenticating the records of other states, in 1 vol. L. U. S. 115. after directing the manner of authenticating the records and judicial proceedings of other states, prescribes the effect of such authentication. On this act of congress, Wilson, associate judge of the supreme court of the United States, in the case of Armstrong vs. Carsob’s executors, 2 Dall. 302, under the plea of nil debet, in an action brought in the circuit court of Pennsylvania. upon a judgment recovered in the state of New-Jersey, says, that such plea is bad, and that the record of the judgment shall have the same force and effect, as in the court from which it was brought.-That in the courts of New-Jersey no such plea could be sustained, and therefore it could not in that court. This clearly demonstrates that a judgment of another of the United States cannot be examined here, and is conclusive upon the first point.</p> <p>Whiteside also argued upon the other ground.</p> <p>The constitution only meant to describe the degree of authenticity which should be attached to the records and judicial proceedings of other states, when authenticated in the manner prescribed. There is a market difference between this case, and that of Jackson and Evans in the federal court for West Tennessee. That was a judgment from Pennsylvania, where they had no court of equity. In North-Carolina, from whence this judgment came, there is one. The federal courts do not act in personam, but this court does. 1 Fonb. 27 89. The bill shews that the plaintiff could not obtain a new trial in North-Carolina, on account of sickness, which prevented one of the defendants from being there, as they lived in this state. The defendant should have pleaded, and not demurred. The bill charges fraud, and that must be answered ; a judgment in North-Carolina may be examined there, so it may here, agreeably to the opinion of Wilson. 2 Dall. 303.</p> <p>The authorities cited on the part of the plaintiff were,2 P. W. 74. 3 Atk. 626-7, 586-7-8-9. Milford 204-5; 1 Hay. 369. 370. 5 East. 474.</p> <p>A demurrer admits the whole bill, but not so of a plea. When a plaintiff at law acts fairly, no matter what accident happens to the defendant, he cannot obtain relief here.</p>

When this case was called in the afternoon both parties insisted that it might lie ever until the next day. But by the court. It must be continued or tried, it is however discretionary with the court.

Equity. The bill, and Wilson's answer stated, that John Carmack, had an entry of 300 acres on Big creek, in Hawkins county, made in the year 1779, which Wilson purchased ; and for a full and valuable consideration, sold 150 acres on the 1st day of September, 1787, to Joseph Bishop, his son-in-law, being the place whereon Bishop then lived.

Ejectment. Plea not guilty. The lessor of the plaintiff claimed under a grant upon a county warrant for 262 acres to Jacob Warmack, dated the 24th of October, 1782. A deed from Warmack to himself was produced. The defendant claimed under a grant to William Richie, upon a county warrant for 300 acres, dated the 18th of November, 1788, describing certain metes and bounds.

Equity. Bill to revive by Cobb’s heirs against Conway’s heirs. Demurrer, shewing for cause, that bill was abated, not having been revived within, two years. It had been more than two years since the death of the defendant, and no step taken. The case depends upon the construction of our acts of assembly; where an act points out a particular mode, it must be observed, and no other, 1785, c. 2 s. 2; 1789, c. 57, s. 7.

Debt upon a bond with condition to convey 500 acres of land, first and second rate, on the waters of Tennessee. The defendant proved, that land on the waters of Tennessee bore different prices at the time the obligation was given, and that it neither had risen or fallen since. The highest price of such land with water, five dollars an acre, some at two dollars, and such land without water, one dollar, and if in the Indian boundary, fifty cents.

<p>See Newl. Cont. 491-2. 2 Wash. 121 3 Br. C. C. 218.</p>

Notice had been gvien to take depositions, specifying two days—the witnesses lived at the distance of two hundred miles.

cited 2 Hay. 76, respecting lost records. The court received evidence of the loss of the bond, the substance of which was ordered to be recorded, and thereupon allowed the motion and gave judgment.

<p>Ejectment. Plea not guilty. The plaintiff produced a grant for 97 acres, dated October the 23d, 1793, and several mesne conveyances, among which was one from James Wheeler to the lessor of the plaintiff, dated in August, 1797, proved in Sullivan courts in February,1798,and registered in March, 1807.</p> <p>objected to the reading this deed. It was well known, that the time allowed by law for registering deeds, had frequently expired and had been renewed. It expired and was renewed after the probate, and before the registration. The act giving further time to register, did not give effect to the probate, which became a nullity after the time for registering had expired, and its renewal had no operation, except as to the registration.</p>

<p>Appeal. The lessor of the plaintiff purchased under a sheriff's sale the right of the defendant.</p> <p>For the plaintiff were produced copies of a grant, dated November the 10th, 1784, No. 514, upon a county warrant, for 300 acres, to William Thornton, on Cherokee creek. A deed from Thornton to Robert Rogers, and a deed from R. Rogers, by his attorney in fact, to the defendant.</p> <p>objected to the reading of the last deed, unless the power of attorney were shewn, 1 Esp. Rep. 89, 90. He also shewed a record of the proceedings of the county court, front which it appeared that Nathaniel Taylor was a co-defendant there, having been admitted to defend with Pitner, the present defendant that he pleaded; judgement below for the plaintiff. An appeal was granted to the defendant upon his application, but not as to Taylor, who having applied by his attorney to the court for an appeal, was refused on the ground of not being present.</p> <p>insisted that Taylor was no party there, and that it did not lay in Pitner’s mouth, to object to the want of a power of attorney, which is recited in his own deed. Tillery’s lessee vs. Wilson.† A release which had been recorded from Taylor to the lessor of the plaintiff was produced. It relinquished claim to all the lands within the plaintiff’s line.</p>

Debt upon a bond given by the intestate, under date of the 21st of May, 1798. Plea, plene administravit payment and issues. The plaintiff produced a copy of the inventory, returned by the administrator, July, 1799, amount $715 56. An order of the county court, appointing a committee, or commissioners to make a settlement with the administrator, and report onto the next court.

<p>A person indicted for horse stealing under the act of 1807, is entitled to a peremptory challenge of 35 jurors.</p> <p>Note.—T. Humphreys the brother of the defendant, was also tried and found guilty, and had the same sentence.</p>

Indictment in the county court for larceny, in the stealing of one dollar specie. Appeal to this court. The indictment did not conclude against the statute, but in the ordinary form of an indictment at the common law. Demurrer and joinder. In support of the demurrer, it was insisted that the indictment must be considered as predicated on the common law. 2 H. H. P.

Two questions present themselves— 1st. Whether it were competent to the defendant to shew a better subsisting title out of the lessor of the plaintiff. 2d. Upon the trial, a deed had been rejected upon the ground that it was registered when there was no law to authorise it.

<p>A certiorari and not an appeal, is the proper remedy for a person injured by the decision of a county court, directing a road thro' his land. The county court have no power to by off road thro' town lots.</p>

Sci. Fa. against Margaret Wier, wife of Joseph Wier, to shew cause why she should not pay the forfeiture, for failing to attend as a witness upon subpoena. Oyer of the sci. fa. Demurrer and joinder. The Demurrer contained three objections. 1st. The plaintiff was an infant, and should sue by prochan amy. 2nd. The defendant a feme covert, should have been joined with her husband. 3d. The amount of the forfeiture did not appear in the subpoena. cited 1, Bac. Dub.

Covenant to deliver one hundred and fifty gallons of whiskey. Special pleas. 1st. That by the bond the whiskey was to be delivered at Mr. Rices, which the declaration ought to have averred. 2d. The bond was given for a horse which was unsound, Demurrer and joinder.

<p>A subsequent grantee cannot avoid a prior grant on account of fraud practised on the state in obtaining it. After a grant has issued, the entry is conclusive evidence of the payment of the consideration.</p>

<p>If after judgment recovered by the obligee against the obligor, for the use of the assignee of a bond for property, the obligee having notice of the assignment, pay the obligor, it is no discharge.</p>

<p>After an agreement to plead & try so as not to delay trial, if the defendant does not plead at the next term, he cannot afterwards have oyer, but a judgment by default may be entered, and a writ of enquiry executed in stanter.</p>

Equity. After the coming in of the answer it was moved to dissolve the injunction. The bill stated that the plaintiff purchased a tract of land of the defendant, for which he gave his bond ; upon which judgment had been recovered at law, It averred that the defendant had no title nor could he make one.

The plaintiff in deducing his title produced a deed, on the back of which was a memorandum dated in the year 1793 in the following words, this day came before me the bargainor, and acknowledged the execution of the within deed for the purposes expressed, signed John M'Nairy,” upon which the deed was registered in the proper county, and certified by the register. objected to the reading of this deed in evidence, because the probate does not state the official capacity of the…

This was an action of debt, grounded on the 4 & 5 sections of the act of 1803. c. 3. The act imposes a tax upon merchants, pedlars and hawkers, of $25. and requires them upon payment of the tax, to take out a license from the clerk of the county court. The 5th section inflicts, a penalty of $100 for selling without license, one half to the use of the informer.

<p>In this case Powell, j. agreed with the opinion formerly delivered by Overton, j. Humphreys, j. dubitatur. See the case ante.</p> <p>Another question came before the court—this was a writ of error upon which security was given, before the passage of the act of 1807, c. 81, s. 3—This act directs that the court shall enter up judgment against the principal and security, for 121-2 per cent, interest. A motion was made against the principal and security.</p>

Appeal. Whiteside produced affidavits, shewing that bond and security had been given in the county court, and also reasons filed ; and that by some means these papers had been lost, without the default of the defendant, so that they could not be sent up as part of the record.

Appeal.—Payment on the trial below ; John Bowen sworn as a witness, and being produced here by defendant, he was sworn on his voire dire, at the instance of the plaintiffs. Upon being asked, he stated that he was interested.

<p>Certiorari, upon a caveat in the county court.</p> <p>Harris, who had obtained a rule to dismiss, argued in support of the rule upon two grounds:</p> <p>1st. William P. Anderson obtained the certiorari as agent for the defendant, when his agency does not appear. In the petition he states himself as agent and locater of the land.</p> <p>2d. The bond for prosecuting the suit was not taken agreeably to the act of 1807, c. 81.</p>

Certiorari. Rule to dismiss upon two grounds- 1st. The bond for prosecution was not taken agreeably to the act of 1807, c. 81,in this,that the obligors have signed and sealed it above the condition. 2d. In the writ of certiorari, the judgment is described as being for $300, when that is not the sum mentioned in the record sent up.

<p>On the 13th day of the term, the causes were called for the purpose of taking the rules.</p> <p>after calling the defendant, had a judgment by default entered; soon after Williams offered a plea, the acceptance of which was opposed, and it was insisted, that without an affidavit of merits, the writ of enquiry could not be set aside. Upon enquiring, it appeared that the judgment by default was taken before the suit was called by the clerk in the order in which it stood on the docket.</p>

The plaintiff claimed under a collectors deed for taxes ; the record produced shewing the judgment of the court, upon which execution issued, stated the transaction nearly thus “it appears (said the clerk) from the records of the court, thatthe court upon the report of the collector, of the public taxes, ordered certain tracts of land to be sold for the taxes, among which were two tracts in the name of the person as whose property the lessor of the plaintiff purchased one.’’…

<p>A settlement made by commissioners appointed by the county court, with an administrator, although not stating the dignity of the debts paid, is prima facie evidence, on the plea of plene administravit:</p> <p>Provided the settlement were made prior to the commencement of the suit, otherwise, if after-but if it has been admitted, & verdict obtained by the administrator, a new trial will not be granted, it being a hard case.</p>

An action had been commenced in the county court, where a demurrer to the declaration was filed, when the case came on the attorney withdrew his demurrer and confessed judgment, the defendant not being present. Appeal to this court, and upon affidavit, it was moved for leave to plead payment. This was on the last day of the court, and the cause stood so far on the docket, that it was certain the court would not come to it.

This was an action of covenant, in which the plaintiffhad taken out the bond for the purpose of proving it by the subscribing witness abroad. The deposition was returned with the bond annexed ; and now Grundy moved, that he might have the bond for purpose of sending it to another state, where his witness lived, in order, that he might prove it was not his deed.

The lessor of the plaintiff had the oldest entry and grant. The plaintiff's entry called to begin at a certain place, running East and South for quantity. The defendants entry began at the same place, calling to run East and North for quantity. The defendant’s entry was made before the plaintiff's grant issued.

The plaintiff, Samuel Kerr, claimed under a grant to Joseph Kerr, for 640 acres, surveyed, March the 8th, 1807, and dated May the 19th, 1789, which was conveyed to the lessor of the plaintiff, on the 8th of February, 1791.

Ejectment. Plea in abatement for a misnomer. moved that the plea might be set saide as frivolous, as no plea in abatement could be sustained in an ejectment. When a plea in abatement, is regularly put in, there must be a replication or Demurrer 1 Tidds. pr. 588. A person can plead in abatement in ejectment, as well as in any other action. Ancient demesne was pleaded, 5. Co. 105. 2. Lord Ray, 4 18. 1. Salk. 56. 90. 2.

Appeal by the defendant from the county court of Williamson, brought up by the state. said, he supposed as the defendant had failed to bring up the appeal, it would be affirmed as in civil cases.

Plea in abatement for a variance between the writ and declaration. The writ did not state the citizenship of the plaintiff nor defendant, but the declaration did, and this was the variance set out in the plea. that this plea might be stricken out,as being frivolous.

Appeal brought up by the appellant ; and it was now moved by his counsel, that it might be dismissed. as it did not appear that the appeal was allowed by the county court. Nor was there any copy of the bond for the appeal stated on the record.

<p>Certiorari. The clerk had put this suit on the trial docket.</p>

Action on the case—money lent—money had and received—plea non assumpsit and issue. In evidence it appeared, the plaintiff owed Bustard and Eastin in account current—Defendant owed a man of the name of Newman, and in order to pay him, got of the plaintiff a note which he had on Newman for a gaming debt.

The plaintiff claimed under a military grant for 640 acres to Thomas Hogg No. 1271, dated Nov. 16th, 1790, and registered April 29th, 1807 ; upon an entry dated January the 10th, 1786, in the following words, “Thomas Hogg assignee of Robert Mann, 640 acres, on yellow creek four, or five miles below the chickasaw trace, running so as to include a black oak tree marked W. B. for complement.

Appeal previous to last term, time enough for the appeal to be then brought up. Neither party brough,it up to that term but the appellee brought it up to this term.

Grundy wished to know of the court, if it were regular to move for the dismission of an appeal, and if the motion failed, to try the appeal during the same term.

Debt, upon a bond with a collateral condition.—The condition was for building a house in a manner specified in a former bond. Under the plea of non infregit conventionem, parol evidence was offered to shew what the former bond required, stating it would be proved that the defendant had that bond.

Covenant for the delivery of staves. It was proved that Stowel was a partner of Fisk’s in merchandize ; that the consideration of this covenant was merchandize, and that Stowel carried the staves down the river for the purpose of sale. It was moved to prove what Stowel had said respecting the receipt of the staves.

Case. Jacob Kincaid, gave his writing obligatory dated the 29th of October, 1804, to the defendant for $300, which might be discharged in a likely, healthy, sensible, and well grown negro girl, over fifteen years of age, and under twenty, clear of any impediment, against the first day of March ensuing; and afterwards on the 14th day of January, 1805, the defendant assigned said covenant to the plaintiff for value received.

This was an action of covenant, on a warranty contained in the deed by the intestate, in the county court of Warren, and appeal to this court. The deed containing the warranty the 25th September, 1806.

Covenant to build a boat. Plea accord and satisfaction, after the time for performance. There was evidence that the boat was badly built, and was leaky. It was however received, after the time for building had expired. It was contended on the part of the plaintiff, that there was no agreement to take the boat in satisfaction, it was barely received and if the boat was bad, it ought not to bar this action.

<p>The declaration stated the tenor of a lost bond for three hundred and fifty dollars, that it was assigned to the plaintiff, and that it was lost by time and accident. Plea non assignavit and that the bond was not lost by time and accident, and issues.</p> <p>The plaintiff proved by one Matthews, that the bond was sent by him for the purpose of putting it into the clerks office to bring suit on: that he left it with the clerk directing that suit should be brought on it; the clerk died, strict enquiry has been made of his successor, who has searched for it without effect. Matthews stated that the bond left was for three hundred fifty dollars payable in cattle, the same witness proved, there was on the bond an assignment to the plaintiff. N. W. Williams for the defendant insisted, there was a variance between the bond described in the declaration, and the one proved, that it was not the same bond, and consequently plaintiff was not entitled to recover, a bond for three hundred and fifty dollars in money, is surely different from $350 payable in beef cattle.</p> <p>Such a bond as is declared on is admitted by the pleas of the defendant, and whether assigned to the plaintiff or not, is proper matter for the jury to determine on the evidence they have heard.</p>

This was an action of assault, battery and imprisonment. Plea, that the plaintiff was the defendant's slave. The plaintiff was a person of color, and the object of the action to recover freedom. It had been tried in the county court of Rutherford, where there was a verdict for the defendant. An appeal to this court. offered in evidence a deposition which was proved to have been read in this cause, in the court below.

Ejectment. In this case a joint ejectment had been brought against two defendants, Dodson and Buford ; the clerk had docketed them as two suits. Before the trial came on, it was moved by plaintiffs counsel, that these suits might be consolidated, and insisted that it had been frequently done in actions of trespass, and no distinction could be perceived in this respect, between ejectment and other actions of trespass.

Ejectment. The title papers and evidence, the same as in the preceding case. Dickinson opened the case for the plaintiff as in the former case. The doctrine of entries, and their legal nature, was extensively adverted to in the case of Reid’s Lessee vs. Dodson; I will however, with the permission of the court, advert to some principles which appear to be of importance.

In Equity. Upon motion to dissolve an injunction, it appeared from the bill and answer, that the plaintiff had an entry in the year, 1799, on the south side of Cumberland, &c. He gave his bond to the defendant to make him a right to 228 acres on the south side of Cumberland rivers, adjoining Lytle's claim. The defendant took possession of the land, and about the year, 1800 or 1807, made an entry on the same land, of an occupant claim.

<p>In Equity. An ejectment had been commenced at law, and before plea pleaded, an injunction obtained.</p> <p>said, the injunction was irregularly obtained, and therefore did not come within the meaning of the 47th section of the act 1801, c. 6. In this case, the only ground relied on is, that the plaintiff at law, and the defendant here, had the youngest entry, though the oldest.— Agreeably to our practice, the plaintiffs had their remedy at law.</p> <p>It is a mere legal question, and there exists no ground for them to come into this court. He moved that the injunction might be set aside, as having been improvidently obtained. In ordinary cases he admitted, that injunctions in ejectment and caveat causes, could not be dissolved, but must await the final hearing.</p>

In equity, The bill stated that the deceased entered into an article of agreement with the defendant Ward respecting the sale of two tracts of land of 640 acres each; the property of the deceased, on blooming grove creek, for which the defendant was to give twenty five cents an acre; that the defendant, was to examine and see if the land could be found, and that the title was good; and if the boundaries could not be ascertained the contract was to be void.

This was an indictment for horse stealing. It charged the stealing of the horse of Stephen Harris. Upon evidence it appeared, that the man whose horse was stolen, was named Harrison. The witness stated that his name of baptism was Harrison, though his neighbours sometimes called him Harris. objected to any further evidence on this indictment and cited 1 H. H. P. C. 5. 1 s. 2. Haw. 329.

At the last term an entry was made to the following effect: “ declaration filed and admitted by consent, time to plead, or demur so as not to delay trial. This entry was made without application to the court. A demurrer was filed during this term; and it was now moved, that the demurrer should be argued, so that if overruled, a writ of inquiry might be executed this term.

<p> Plea in abatement. </p> <p>1st. It does not appear from the return of the writ, that there were ten days between its execution and the first day of the term.</p> <p>2d. The execution of the writ, is by a person who signs his name with the addition of D. S.</p> <p>moved the court to set aside the plea as frivolous.</p> <p>that the plaintiff cannot move to quash the plea. A person may plead what plea he pleases, and the opposite party must either demur or take issue.</p> <p>The court will not set aside pleas on motion. The act of assembly regulates this matter. He relied on the act 1794, c, 1. s. 9. It Ought to appear by the return, when the Writ was executed, for if a writ be taken out within less than ten days before court, it must be made returnable to the second term. All writs must be executed by the sheriff or his deputy, and it must so appear by the return. In this case it does not appear. The initials D. S. are not sufficient. Manley’s case, and the case of Barry’s lessee, demonstrate this.</p> <p>relied on Cro. Car. 180.</p>

Indictment for assault and battery in the county court; appeal to this court. The defendant in the county court, pleaded guilty, and submitted to the court.

Upon a rule for a new trial. This was an action on the case, with a special count, stating the sale of a land warrant of 640 acres, for the consideration of $500, which afterwards was preferred to the board authorized to judge of the validity of land warrants; that the warrant was declared invalid and void, whereby the defendant became liable to pay the consideration, and assumed upon himself, &c. There was also a count for money had and received.

<p>Construction of entries. What possession is sufficient to enable a party in ejectment to avail himself of the statute of limitations.</p> <p>Ante pa.288</p>

This was an application for a peremptory mandamus to the county court of Robertson. The case was as appeared from the record of the county court, that the defendant took out a writ against the plaintiff. Upon this writ the sheriff returned non est inventus; a judicial attachment issued, which was levied on a tract of land.

Ejectment. Plea not guilty and issue. The plaintiff produced the oldest grant for 5000 acres of land, dated about the year 1786. lying on the head waters of Richland creek, beginning at John Nelsons south east corner [of grant No. 1120] thence north 1250 poles, east 610 poles, south and west to the beginning, in an oblong.

The defendant had given an obligation to make, Clark a deed in fee simple, to six hundred and forty acres of land, his choice out of 2000 acres on the waters of Stone’s river, to join some corner of the tract. The bond was given about twenty years, ago, and the title waste be made so soon as grants should issue. It did not appear that the defendant had any such land on the waters of Stone’s river.

Ejectment; not guilty, and issue. The defendants claimed under the oldest grant, and relied on the statue of limitations. It was proved on the part of the defendant, that Thomas Mollay purchased at sheriff's sale, and took a sheriff's deed; he sold to Shannon, and gave his bond to convey.

This was an action on the case disclosing the following facts. The plaintiff and defendant, having each a boat in the river Holston, designed to load them for the purpose of going down the river, on a trading voyage. The plaintiffs boat was in repair, the defendants was not. The defendant having his loading ready, which the plaintiff had not, proposed an exchange of boats, which was agreed to, upon the defendants agreeing to repair the plaintiffs boat.

<p>Jurisdiction of courts of equity is not affected by the assumption of jurisdiction by courts of law.</p>

Scire Facias against Bail. 1st. plea surrender in court. 2d. Plea surrender out of court to the sheriff in discharge, with verifications, replications, and issues on both. Parol proof of a surrender in court, was offered, which was objected to.

<p>What must be shewn to authorise the reading a deposition taken de bene esse.</p>

This was an indictment in the county court of Washington, against David G. Vance, as overseer of a road, endorsed thus, “founded on a presentment.” The presentment in the county court stated the road to be out of repair, without mentioning the overseer. To the indictment in the county court the defendant pleaded not guilty, and afterwards moved to be discharged on the ground, that there was no prosecutor marked agreeably to the act of 1801. c. 30.

In Equity. This cause had been continued by consent for several years. Miller for the clerk and master, suggested, that the clerk ought to have his costs, if the parties had a mind to continue. Whiteside said, the parties had a right at all times to continue, nor could the court interfere.

In Error. This was a petition for a legacy in the county court, under the act of 1762, c. 5, upon which the county court made a decree. The errors assigned were, 1st. That no process or copy of the petition were served on the defendant. 2d. That the defendant never was executrix as charged in the petition. 3d. That the first order for taking the petition pro confesso, was erroneous. 4th.

<p>In what cases a plaintiff in assumpsit, failing to prove his special count or proving a special agreement different from the one declared on, can recover on his general count.</p>

Appeal. Case on a note, to which there were two subscribing witnesses. proved the death and hand-writing of one of the witnesses, and there rested his case, observing that such was the modern practice in England.

Case, on a quantum valebant, for goods, wares and merchandize. The plaintiffs were merchants, and advertised that they would take cotton in payment. The defendant took up goods.

<p>3 Binn. 30, 32. Maryl. R. 139.</p> <p>Co. Lit.365, a. 1 Caine's C. E. 65. 1 Binn. 477. 3 Binn. 13. Weakly's lessee vs. Simmons &c Wilson, ante p. 370. 3 Binn. 491. 6 Co. 6.</p>