Volume 10 — Tennessee Reports

This was an action of ejectment, brought by the lessee of Dorcas Willie, in the circuit court of Blount county? against Calloway. Upon the trial, James Pearce was offered as a witness by the plaintiff, to impeach and prove void for fraud against his creditors, a deed which he had executed to Calloway. The deed contained a warranty of the land to the bargainee, but nevertheless, Pearce was willing to be sworn; the court received him and he was sworn.

This was an action of assumpsit for the use and occupation of certain lands. The plaintiff obtained a verdict and judgment in the circuit court, from which the defendant prayed and obtained an appeal in the nature of a writ of error to this court.

The defendant in error, (M’Combs,) recovered a judgment in Jefferson county against William Cox, executor of Dudly Cox, dec’d. for $318 and costs. The executor pleaded, that he had fully administered the assets, &c. which plea was found in his favor by the jury. It was then suggested to the court by M’Combs, that Dudly Cox, dec’d, had, by his last will and testament, devised all his lands to Betsey Cox and Polly Cox, who were minors, and that Bcnj.

This was an indictment for harboring a slave, and is founded upon the act of 180G, ch. 32, sec. 4.

<p>Evidence to prove that the subscribing witnesses to a deed, are men of bad character and not worthy of credit upon oath is admissible.</p>

The defendant was indicted for murder, and was found not guilty of murder, but guilty of manslaughter. He made a motion in arrest of judgment, which motion the circuit court sustained, and the judgment was accordingly arrested. From the opinion of the court in arresting the judgment no writ of error was prosecuted to the supreme court.

<p>A covenanted to pay and deliver horses six months after the date thereof; the day for payment and delivery fell upon Sunday; on the next day (Monday) the horses were tendered, which fact was pleaded hy A, when sued upon his covenant; held, that the plea Was bad.</p>

This suit was brought by Richard C. Napier, against Christopher Stump, the first indorser of a note for ‡3000 executed by Stump and Cox, on the 9th April, 1819— The note was indorsed in blank by said Christopher Stump, William Carroll, Reuben A. Higginbotham, Tho. H. Fletcher, Richard C. Napier, and lastly by John Boyd, The note was protested for non-payment; Napier paid the note to Boyd, and immediately commenced this suit against Stump.

This was an action of debt. The declaration stated, “that the said Thomas J. Read, by his certain note in writing, his own proper hand being thereto subscribed, acknowledged that there was due by him to said John J. Y J Wheeler, the ^um of fifteen hundred and thirty dollars, J 9 sixty-three cents, value received, &c.” The defendant pleaded payment. A verdict and judgment was rendered against him, from which he prosecuted a writ of error to this court.

<p>When property is conveyed by A to B, for the benefit of his, A’s. creditors generally, any one of A’s. creditors may file a bill to carry the provisions of the trust deed into effect. '</p>

The plaintiff in error was tried at the last circuit court for the county of Davidson, upon an indictment for horse-stealing, and was found guilty, and judgment passed upon him. At the trial, a bill of exceptions was taken, which showed the following case: That the plaintiff in error committed the felony in the county of Davidson; he was arrested in the county of Dickson, and carried before a justice of the peace for that county, for examination and commitment.

<p>- The affidavits of jurors will be received as evidence upon a motion for a new trial; and if sufficient matter be stated in them, it is the duty of the court to grant it.</p> <p>. "Where a juror is not satisfied of the guilt of the prisoner, but assents to a verdict of guilty, under an impression (suggested by his fellow jurors) that the Governor would pardon the defendant, if the Jury by their verdict recommend it: held, that this was sufficient pause to set aside the verdict.</p>

<p>an act'on f°r a malicious prosecution, what the wife of the defendant swore upon the trial of the indictment against the plaintiff, may be shown in evidence, in order that the plaintiff may prove her statement false.</p>

<p>Where the damages assessed by the jury exceed the penalty of a bond, judgment can only be rendered for the penalty.</p>

<p>Where the boundaries of a grant have been amended on petition, whether such amendment is erroneous or not, the grantee will hold the land contained in the boundaries so amended, against the claims of subsequent enterers.</p>

<p>The protest of the captain and crew of a boat, is not admissible evidence to prove, that the loss or damage to the cargo happened in consequence of a violent storm.</p>

<p>A, the father-in-law, loaned to B, the son-in-law, a negro man, until he could procure a negro girl to give him. At the end of three years, A procured, and gave the girl to B. The negro man continued in the possession of B for Jive years and upwards; (including the time elapsed before A procured the girl.) Held, that this was not such a loan and possession of the negro man by the son-in-law for five years, as under the act of 1801, ch. 25, would make the negro man liable for the satisfaction of B’s debts.</p> <p>The act of 1801, ch. 25, does not embrace loans made for a definite period of time, though made for more than five years, and not in writing.</p> <p>The act extends only to cases of indefinite loans, not in writing> and where the possession of the loan remains for five years in the loanee.</p> <p>The loanee mast remain in possession of the property loaned for five years, after the particular and defined loan has ceased and determined; and during which time the lender could resume the possession at pleasure, by suit or otherwise.</p>

<p>In a suit against the maker of-a note, payable at a particular place, it need not be averred in the declaration that the note was presented at the place for payment.</p>

This was an appeal in the nature of a writ of error, from the judgment of the circuit court, rendered against the plaintiffs in error as securities in an appeal bond. The judgment was rendered against them for the whole amount of the debt, damages and costs. Thecondition of the appeal bond, was “that the defendant should well and truly prosecute his said appeal with effect, or otherwise pay all damages and costs.”

From the pleadings and proof in this cause, the following facts appear: one Carson sold and conveyed a tract of land to M’Clure, who paid $1,000, and gave his bond for $2,000, to be paid two years after date; the note was dated 10th October, 1818. On the face of the bond, immediately below the seal, it was stated that the land should be liable for the debt of $2,000 until paid. On the 27th March, 1820, Carson assigned the bond to Esk-ridge.

<p>A witness whose interest is released, is competent, although he states on his voire dire, that he feels himself hound m honor to indemnify the person calling him, and intended to do so should judgment go against him. (a)</p>

This was an action of ejectment brought (by the defendant in error, against the plaintiff in error) in the Lincoln circuit court, on the 4th day of Sept. 1831, for twenty acres of land. The defendant to the ejectment entered into the common rule, and pleaded not guilty.

<p>f In trespass against several defendants, where damages have been severally assessed against each, the plaintiif must elect which defendant he will take judgment against, and enter a nolle, prosequi as to the others.</p> <p>For one trespass there can be but one satisfaction, whether committed by one or more.</p>

<p>The affidavit of a single woman upon her examination before the committing J ustices, that the defendant is the father of her bastard child, is competent evidence of that fact; she need not be examined in open court.</p> <p>The defendant’s affidavit that he is not the father, &c. will not (under the provisions of the act of 1822, ch. 29,) entitle him to a jury to try that fact.</p> <p>The acts of Assembly authorising the court without the intervention of a jury, to make an order on the defendant to maintain the child, are not unconstitutional.</p>

<p>A grant for land may be read in evidence, although it is not registered in the county where the land lies.</p> <p>After a great lapse of time, and when evidence of the due execution of a deed would be difficult to obtain, every reasonable presumption should be made in favor of an old probate.</p> <p>Where enough is stated by the clerk to show that á witness was sworn, or the deed was acknowledged by the bargainor, however informally expressed, after great length of time, the court will infer the legality of the probate.</p> <p>hen the probate of a deed was stated thus: February Sessions 1802 — This deed was legally admitted to record;” it was held that this was insufficient, and did not authorize the deed to be read in evidence.</p>

<p>A witness shall not be compelled to answer any question which subjects him to penalties, or a criminal charge.</p>

<p>A set-off will be allowed wherever debt, or indebitatus assumpsit, will lie.</p> <p>It is error in the court to give judgment without day, &c. upon sustaining a demurrer to a replication to a plea of set-off: the judgment should have been that the demurrer be sustained to the plaintiff’s replication.</p> <p>When the plea of set-off is found for the defendant, the judgment of the court is, that the amount so found be set off against the amount found for the plaintiff; and that the plaintiff be barred from having his execution for the amount so set off, &c.</p>

<p>in a suit upon a promissory note, the declaration must make pro-fert of it, or it will be defective upon a special demuner.</p>

<p>A judgment on motion cannot be taken against a Sheriff for the non-payment of the. county taxes, where the bond is made payable to the trustee of the county, instead of the Governor.</p>

The father of the defendant died, leaving lands, by will, to him and his brother in fee; the brother died intestate without issue. The mother having married again, had a daughter, (the plaintiff,) by her second husband. The daughter filed this petition for a division of the lands, and that one half of the deceased brother’s share should be allotted to her.

<p>A testator devised as follows: “ I will and bequeath that the plantation I now live on he sold by public or private sale, and the proceeds thereof belaid out in land in the Indiana territory, and the right thereof vested in my negroes, to wit, (naming them;) each or all of them with their increase, to whom I give their entire freedom, and the settling of them on the above named land, under the direction of my executors:” It was held that the legal estate was not vested in the executors; that they had hut abare power to sell, which, when executed, vested the estate in the purchaser, under the will.</p> <p>A devise to slaves, or for the use of slaves when they are set free, is valid.</p> <p>The Legislature may, without a violation of the Constitution, create a now. or additional remedy for an existing right.</p> <p>A testator may by his will authorise his executors to free his slaves, and it is their duty to use all lawful means to do so.</p>

<p>It is not necessary in an action on a covenant, for the conveyance of land, that a request to the covenantor to make the deed, should be laid in the declaration.</p> <p>When 1'r.c covenant is in the alternativo, it is no answer to render an excuse for not performing one part of the alternative. But a plea showing a performance of one part will be sufficient without a plea affording an answer to the other.</p> <p>When a covenant is in the alternative — that the covenantor will convey to the covenantee two tracts of land, if he likes them, otherwise, one tract in lieu thereof — the covenant in such a case is not broken until the covenantee makes his election which land he will have, and gives notice to the covenantor of his choice; and this must bo laid in the declaration. The omission of this allegation may, however, be cured by the plea of the covenantor.</p> <p>In an action of covenant for failing to make title to land, the plea of a tender should show that defendant had a title to the land, and should show what the title was, that its sufficiency might be judged of by the court: the deed by which he offered to convey, sl'ould also be shewn, that the court might likewise determine upon its sufficiency.</p> <p>If notice and request are not averred in a declaration, the plaintiff should not join issue on a plea denying these facts; but should demur. The plea is bad, not being an answer to the declaration, but the court will look back to the declaration, and if the omission is material, will give judgment against the plaintiff.</p>

<p>A testator devised all his real and personal estate to his children. After making the will, the testator acquired other real and persona] property to a considerable amount, of which he died seized and possessed. At the time of the testator’s death his wife was pregnant, and a few months thereafter was delivered of a son. It was held, that before the devisees could entitle themselves to a share of the subsequently acquired real estate, they must bring into hotchpot the land devised to them, (a)</p>

<p>^ property is purchased, and both parties know the same to be unsound or defective, the purchaser will not be entitled to relief either in law or equity.</p>

<p>As a general rule, where a rehearing is granted in equity, the court will not permit an examination of testimony at large; no proof will be admitted, but what was heard, or ought to have been heard upon the original hearing.(a)</p> <p>Where there is newly discovered testimony, such as would authorize a bill of review, or where there has been surprise, by the court unexpectedly relying on evidence at the hearing, which could be satisfactorily explained by other testimony, the court will permit the testimony in these cases, and perhaps others of a like nature, to betaken, if it is satisfied by affidavit, of its materiality.</p>

On the 25th of October, 1783, David Stuart made an entry in John Armstrong’s office, for 1000 acres of land on the north side of Tennessee river, at the mouth of Little Chickamagoo. On the 15th of November 1800, the land was granted to David Stuart by the State of North Carolina. In 1815, Stuart conveyed the land to Winton, the lessor of the plaintiff. By the treaty made in 1819, between the United States and the Cherokee Indians, there was reserved to Wm.

This is an agreed case, and is as follows: It is agreed that the town of Jonesborough was .incorporated by the Legislature of the State of Tennessee in the year 1815, as will more fully appear by a reference to the act of incorporation. That the officers of said corporation named in said act were duly and lawfully elected, and were qualified as the law directs.

This was an action of trespass for breaking the plaintiff’s close, and keeping possession throughout the years 1811, 1812,1813 and 1814. The defendant pleaded not guilty, within three years.

On the 25th May 1825, the defendant, (a negro slave, the property of William Patton,) was apprehended on a warrant issued by Thomas Eastland, Esq. a Justice of the Peace for White county. The charge against him was that he had murdered Hannah Shaddon and her child Malvina. The Sheriff was ordered to summon three Justices of the Peace, and a jury of slave holders, to try the defendant upon said charge.

<p>A court of equity will not decree the specific performance of a contract, where the party seeking to enforce it, has laid by fora great length of time without asserting his right.</p> <p>Where 30 years had elapsed from the making of the contract, but the delay as to part of the timo, had been occasioned by the mutual agreement or forbearance of the parties, and the remainder of the time, (except the last three years,) the ancestor of the complainant was insane; held, that a specific performance will be decreed to the heir.</p> <p>Jt is á rule in equity, where A. covenants to convey to B. and af-terwards conveys to C. for a valuable consideration without notice, the latter takes the estate discharged of the trust.</p> <p>The plea of a purchaser for a valuable consideration without notice, must aver, that the vendor was seized in fee, or pretended to be seized in fee, and without such averment the plea is bad.</p> <p>A purchaser of an entry or other equitable title, must abide by the case of the person from whom he purchases; the rule in such case is, he who is first intime, is best in right.</p> <p>Where an entry was sold to A. and the vendor afterwards sold to B. who afterwards sold to C. and the latter had no notice of the prior equity; held, that A. could compel a specific performance against C. who after his purchase received the legal title with notice.</p> <p>When the legal estate is outstanding in a trustee and he conveys to the second purchaser of the equity, the latter, not having notice, will hold the estate discharged of the trust; but the trustee will be liable. '</p>

<p>. . . , _ . , A claim by entry will be barred by seven years adverse possessed un(jer a C0¡01. 0f title, by the act of 1797, ch. 43, sec. 4.</p>

<p>When a bill of sale is absolute on its face, it requires clear and satisfactory proof by parol, to show that it was intended as a mortgage or conditional sale.</p> <p>A court of equity allows a redemption of property, on the general principle of relieving against forfeitures, v/hen compensation can be made.</p> <p>In cases of defeasible sales, the condition to re-purchase must be strictly performed by the day specified; if not complied with, equity cannot relieve.</p> <p>If a fall price is paid, and there is no covenant to re-pay the' money advanced, these are strong circumstances to show a conditional sale, and not a mortgage was intended.(a)</p>

Stuart brought an action on the case against Coulter in the circuit court of Rhea county, for speaking these words of and concerning him: “You (meaning Stuart) are a damn’d perjured rascal and highway robber, and I can prove it.” Coulter put in a formal plea of justification as to the charge of perjury. The court on the trial, was called upon to instruct the jury, that this being a civil action, one witness was sufficient to sustain the plea of justification.

The land in controversy in this suit was granted to Andrew Greer, in 1790. He had ten children, one of whom (Jane,) intermarried with Willie Barrow in 1799,and had issue, David, Alexander and Jane,“and in 1802 she died. In 1805, Andrew Greer died; one eighth part of the land upon his death vested by descent in David, Alexander and Jane Barrow.

<p>A witness who has been subpcened by both plaintiff and defendant, is not entitled to prove his attendance on both sides.</p> <p>Costs, which are taxed generally, without specifying the items in words at length, will be struck out of the bill of costs.</p> <p>Witnesses attending without being subpcened, are not entitled to prove their attendance, and have it taxed in the bill of costs.</p>

This is an indictment founded on the act of 1813, ch. 65, and on the last clause of the first section, which is iii these words; “and if any… Held: taken, deemed or adjudged guilty within the meaning of this clause, of any of the offences therein mentioned, if he, she, or they had kept, possessed, had, concealed or secreted, or aided, assisted, or was concerned in the having, keeping, possessing, hiding, concealing such counterfeit bill or bills, note or notes, innocently,…

<p>Three deeds for land were proved as follows: the first one thus, “Washington county, August Sessions, 1799. This deed was duly admitted to reoord, let it be registered.” The second, “May Sessions, 1802. This deed recorded; let it be registered.” The third, “Washington County, January Sessions, 1820. This deed was duly proven in open court; let it be registered.” It was held, that neither of these probates were sufficient to authorize the deeds to be read to the jury.(a)</p>

<p>When a verdict is,found m favor of the defendant in an action of ejectment, judgment is rendered against the lessor of the plaintiff for the costs.</p> <p>Unless the judgment of a court is void, it cannot be set aside by the same court at a subsequent-term.</p> <p>The person whose name appears on the record, will be responsible for costs, although his name was used without his consent or knowledge.</p> <p>Items of costs not taxed at length will be stricken out, and the execution quashed as to them.</p> <p>In taxing the costs for attendance of witnesses, the miles travel led, the number of ferriages paid, and the number of days the witness attended, must be stated.</p>

<p>Where two defendants, in a State prosecution, jointly plead not guilty, the court will not permit them to be tried separately, unless cause be shown by affidavit.</p> <p>Where several defendants are jointly tried, each one of them is . entitled to the number of peremptory challenges allowed by law; and a challenge by one, excludes the party challenged as to all.</p>

<p>'■ The court, upon entering judgment against á defendant, for fine and costs, may order that he shall stand committed until the fine and costs are paid.</p> <p>The defendant, in such case, will he entitled to the benefit of all the acts made for the relief of insolvent debtors, and may enter into bond and security, under the act of of 1824, ch. 17, to appear at the next term of the court, and be discharged m like manner, as if arrested upon a ca. sa.</p>

<p>The statutes authorizing double pleading, do not extend to crimin» al cases.</p> <p>If the jury instead of the court, try the issue joined upon the plea of “nul tiel record,” it is error.</p>

This was an action of ejectment, commenced on the 1st of August 1822; verdict and judgment in the circuit court for the lessor of the plaintiff. The decision of this court turned wholly upon the question of possession, therefore it is unnecessary to notice the original titles. The proof as to possession on the trial, was as follows: That Warner and one of the defendants had been living on the land in dispute ever since the fall of 1831, or about (he first of the year 1822.

This was an action of assumpsit, brought by Thomas E. Sumner’s executors against Samuel Tilford as endorser upon two notes executed by John M. Tilford to the plaintiff’s testator. The two notes upon which the action was founded, were executed in June 1820, and were renewals of notes which had been executed by John M. Tilford in 1817 for money then loaned to him;- he agreed to pay for the use of the money about or 8 per cent a month.

This was an action of assumpsit for the price of certain furniture sold and delivered by the plaintiffs, (Robertson and Currey,) to the defendants. The facts, so far as it is ne'cessary to state them, are as follows: Robertson and Currey were partners in the auction and commission business, and the furniture in question was sold by them at auction to the defendants (Talbot & Henly,) who kept a tavern in partnership.

This cause was argued by.F. B. Fogg and G. S. Yer-ger,for the plaintiffs in error, and by Washington for the defendant. The facts of the case are fully stated in the opinion delivered by Judge Peck.

<p>Tiie act of 1817, ch. 61, (imposing disqualification to hold office; &c. upon persons convicted of gaming) is constitutional.</p> <p>It is error if the court upon a conviction for gaming, does not enter up the judgment of disqualification imposed by the act of 1817.</p> <p>It is gaming, within the moaning of the acts of Assembly passed upon that subject, to vend or buy tickets in a private lottery.</p>

<p>If the Legislature has made no exceptions in a statute, the courts can make none.(a)</p> <p>The act of limitations will form a bar to an action of ejectment, although the defendant when he received his deed, knew that the person conveying to him had no title.</p>

<p>T m . in all caaes against bail, the ca, sa, must bo shown to have issued to the sheriff of the county whore the defendant had been arrested.</p>

<p>The confessions of a prisoner must all be taken together, hut if his statements are irreconcileable, or if part of the confession be disproved, or if from all the facts and circumstances taken in connection with the confession, the jury believe apart, but not all of the statement, they may reject such part as they are satisfied is not true, and act upon the other part, without rejecting the whole confession.</p>

<p>A sale of land by a trastee, (although clothed with all the forms required by the deed,) will bo set aside if the purchase is grossly inadequate, as where the land was worth five hundred dollars and.only sold for fifty dollars.</p> <p>This cause was heard as to some of the defendants without the bill being takenpro covfesso against others, who had not appeared. Held, that' this was not such an irregularity as would authorize a reversal ofthe decree.</p>

<p>The assent °f an executor to a specific legacy, before he proves the will and enters into bond and security, will not pass the legal title in the specific bequest to the legatee.</p> <p>(Quaere'!) How far the English rule, that an assent will be inferred from slight circumstances &c. ought to prevail in this State.</p>

<p>When a judgment at law is enjoined, and bjnd and security given by the complainant, to prosecute his suit with effect or pay all cost and damages, the securities are liable for the costs adjudged against the complainant, although the judgment was perpetually enjoined.</p>

<p>. A scire facias founded upon a decree rendered against an executor or administrator, must aver that he wasted the goods of the testator or intestate. It must also direct that he be notified to appear at the next term of the court, to show cause why the plaintiff should not have execution against him, to he levied of his goods and chattels. The want of either is fatal.</p> <p>Upon a writ of error in a chancery proceeding, the supreme court has the same discretion in taxing costs, which it has upon an appeal.</p>

<p>A scire facias will lie upon a decree in equity against an executor or administrator.</p> <p>To a scire facias against a defendant, founded on a decree against him as executor, he may plead fully administered at the time the decree was rendered.</p> <p>A scire facias on a decree rendered against an executor, is defective, if it does not allege a devastavit, (a)</p>

<p>The circuit court has appellate jurisdiction, to affirm or reverse the judgment or order of the county court, establishing a Ferry.</p> <p>A writ of error lies to the supreme court from the judgment of the circuit court, affirming or reversing the judgment or order of the county court, establishing a Ferry.</p> <p>The order of the county court establishing a Ferry, will not be reversed, unless the discretionary power vested in it in such case, has been unreasonably abused or exercised.</p> <p>It is no objection to the order establishing a Ferry, that the defendant has an older one, within a few hundred yards of the same place; nor is it a sufficient objection that the former, (from local causes,) will be of less public benefit than the latter.</p>

<p>A sale of land, by virtue of an execution issued upon an interlocutory judgment for costs, is void, if the items of costs are not set out at full length, as required by the acts of 1779, ch. 4, sec. 4; 1784, ch. 7, sec. 8, 1794, ch. 1, sec. 75; and 1796, ch. 7, sec. 9. (a)</p> <p>The judgment in such case is also void; the courts have no power to render an interlocutoryjudgmentfor costs. Per Whyte Judge.</p>

<p>JNo judgment can be entered ngainst the securities in an appeal bond, unless the bond is in strict compliance with the provisions of the act of 17S4, ch. 1, sec. 63.</p> <p>An appeal bond, binding the securities to pay “all costs and damages,” if the appeal is not prosecuted with effect, is not a sufficient compliance with the act, and no judgment can be rendered against the securities in such bond.(a)</p>

<p>Since the passage of the act of 1815, ch. 59, a witness is permitted to prove hispe»- diem pay, in alt suits m which he is subpcened, but he will not be allowed mileage and ferriage in but one.(a)</p> <p>Where a witness has proved his attendance in a suit, the presumption is he was subpoened, although no subpcena can be found.</p> <p>But if, after he has proved his attendance, the court below is satisfied he was not subpcened, his attendance should be stricken out of the bill of costs.(b)</p> <p>A person summoned as a witness in one suit, is entitled to his attendance pay, although he is a party to another suit in the same court, which necessarily compelled his attendance.</p>

<p>An entry or grant of land lying within the hounds of the lands reserved to the Chickasaw tribe of Indians, and which was entered or granted previous to the passage of the act of 1823, ch. 49, is void, and communicates no title to the grantee.</p>

<p>In an action for a malicious prosecution, the dismission of the' warrant by the magistrate is prima facie evidence of want of probable cause.</p> <p>A party has a right to the opinion of the court, distinctly as to the law, whether certain facts constitute probable cause or not, if the jury believe the facts as stated were proved.</p> <p>Probable cause is a mixed question of law and fact: when the facts are ascertained, it is the duty of the court to declare the law.</p>

<p>A deputy sheriff cannot deputize another to execute a writ. A deputation by the sheriff, must be filled up by him witl name of the person- who executes the writ. 1 ? the</p> <p>The sheriff executed' a deputation in form on a writ, and dei ed it with a blank space for the name of the person who was t ecute it; this was afterwards filled up by one of his deputies was held to be void, and conferred no power to the person u name is inserted, to execute the writ. liver-o ex- . It /hose</p>

<p>A father devised to his son, one-third of all his real estate, and to three of his daughters the remaining two-thirds, “to them and their heirs forever.” Two of the daughters died during the life of the testator.</p> <p>Held, that by the provisions of the act of1784, ch. 22, sec. 6, the land devised to the daughters, who died in the life time of the testator, did not lapse, nor did it go to the surviving daughter by sur-visorship; but that the son, the surviving daughter, and a daughter to whom no land was given by the will, took equal portions of the share given to the deceased daughters, as their heirs, and not as heirs of the testator.</p>

<p>^ surety in an appeal from the county to the circuit court, in which latter the judgment is affirmed, will, upon payment of the judgment by him, be substituted in equity to all the rights of the creditor.(a)</p> <p>When a fund is secured by the principal debtor for the payment of a debt, the surety will be entitled in equity to have it applied to the discharge of the debt.</p> <p>If A mortgages his land to B, to secure debts due to the latter, and it is at the same timé verbally agreed between them that the mortgagee is to pay a debt due by the mortgagor to C, for the payment of which D is security: in the event D is compelled to pay the debt, he may m equity compel B to comply with his contract made with A.</p>

<p>A is indebted to 13. A loans money at usurious interest to C. B not knowing of the usury, agreed to receive the note of C, (well endorsed) inpayment of his debt from A, and C executes his note, which is indorsed and delivered to B: It was held, that the note was usurious and void in the hands of B.</p> <p>If a note is executed upon a usurious consideration, it is void, whether it is executed to the lender, or to a creditor of his by his direction, (a)</p>

This was a scire jadas, brought by the plaintiffs against the defendants, suggesting that at a supreme court ’of errors and appeals for the fourth judicial circuit of .this State, holder) at Nashville, on the third Monday in ,Jan. 1821, Jenkin Whitesides, the plaintiff's intestate, .recovered against Roger R. Sappington, and Thomas Hickman and Daniel Ross, his securities in appeal, the sum of one thousand dollars for his debt, as also the sum .of three hundred and…

This was an action commenced in the county court of Montgomery county, and transferred by consent to the circuit court of Montgomery, where the pleadings were made up. The suit is debt on a record from the state of Ken-tiicky. The declaration stales, the plaintiff Moren obtained a judgment against the defendant Killibrcw in the circuit court of Christian count)', in said state, for the sum of ‡172 29, upon a scire facias by default.

<p>A locator of land, before his share or portion is assigned or partitioned to him, is in equity,■ a tenant in common with the grantee or enterer.</p> <p>A tenant in common cannot in general sue his co-tenant in as-sumpsit, when the latter has received all the rents, &c. He must proceed by action of account, or bill in equity.</p>

<p>The office of the conclusion “ contra formarn staluti,” is to shew the court that the action is founded on the statute, and not an action at common law.</p> <p>In an action in the name of the state, against a person for merchandizing without a license, the expressions in a declaration, “ by force of the statute m such cases made and provided, an action hath accrued,” &cc. ore equivalent to the conclusion “against the form of the statute.”</p> <p>A merchant cannot retail goods at two stores in the same county, under one license.</p> <p>A merchant to exempt himself from the penalty, must prove that the goods sold were of the growth or manufacture of the state of' Tennessee. It does not lie on the state to prove the negative.</p>

<p>A obtained a judgment against heirs, which was void; notwith* standing which, an execution issued upon it, and was levied upon their land. A bid for the land, but it was purchased by B. A after-wards acquired the title by purchase: held, thatfhe could recover in ejectment against B.</p> <p>Where A, having the title to land, stands by and knowingly permits another to purchase it without making his claim known, he is estopped in equity fVorn settingup his claim against the purchaser.</p> <p>Caveat emptor, is the rule in relation to the title of land sold by execution sale: there is no warranty, express or implied, that the land is the debtor’s.</p> <p>W here A conveys land to B with warranty, he is estopped from setting up a subsequently acquired title in liimself.(a)</p> <p>Where there is no legal liability, equity can create none.</p> <p>Where land is sold under a void judgment and execution, the purchaser who has paid his money can recover it from the creditors whether the whole amount was paid to him by the sheriff or not.</p>

<p>The probate of a deed in the tallowing words: ‘‘State of Tennessee, Hawkins county. May Sessions, I82f; then this deed of conveyance was acknowledged in open cmrt, and ordered to he registered,” was held not to be sufficient proof of its execution.(a)</p> <p>Where the jurisdiction of a court is special and limited, the facts necessary to give the jurisdiction must appear on the face ofits proceedings.</p> <p>The interest of a debtor in land, which lie has conveyed by deed' of trust, cannot be sold under an execution against him.(b)</p>

<p>The Indian title to lands within the chartered limits of Tennessee, (previous to the act of 1733, ch. 2,) was a mere right to the exclusive occupancy, use and crij lyment. of the land, subject nevertheless to be extinguished by the government, (a)</p> <p>The Cherokees, although a dependent people, are governed hy their own laws, and are not subject (particularly since the passage of the act of 1783, ch. 2) to the legislation of North Carolina.</p> <p>Grants for land lying within the Indian boundary, are valid ns between the state and the grantees: the latter take the land subject to the Indian incumbrance.</p> <p>Those articles in the treaties made with the Cherokees in 1817 and 1819, reserving to the head of every Indian family a right to 640 acres of land, upon certain conditions therein specified, are valid, and binding upon Tennessee and all persons claiming under her.</p> <p>It is a genera] rule when an agent, exceeds his autho.ity, if the principal takes a benefit under it, he cannot afterwards allege a want of authority. This rule is applicable to sovereign states, as well as individuals.</p> <p>The head of an Indian family is not bound to take his reservation at the place where he resided at the date of the treaty.</p> <p>If he has a place occupied by himself, another by his family, and a third by his tenants, he may select either for his reservation.</p>

<p>The reservation given to the heads of Indian families, by the troa- ® ties of 1817 and 1819, extended the right only to such perons as were the “heads of Indian families,” at the date of the treaty of 1819.</p>

<p>A registry for a life reservation, made after the last day of June 1818, and before the first of January 1820, is valid.</p> <p>To produce a forfeiture ofa life reservation, by a removal or abandonment, it must be a voluntary removal from the possession, accompanied with the intention of never returning.</p> <p>A simple unexplained removal, without an intention of abandonment, or a removal by force or threats, is not such an abandonment as will occasion a forfeiture of the reservation.</p> <p>The charge of the circuit court, “that the voluntary removal of the ancestor from the reservation, destroyed the whole right of the reservee, both m himself' and in his children,” is too general and indefinite; he should have charged, that the removal must be accompanied with the intention of a total abandonment, or an intention of not returning, &c.</p> <p>Parol evidence is inadmissible to prove that an Indian claiming a reservation, had enrolled himself as an Arkansas emigrant.</p>

<p>The registration of the name of the head of an Indian family, at any time before the first of January, 1820, vested in him the title to his reserve; if not registered by that time, the inchoate title given by the treaties of 1817 and 1819, and his right of becoming a citizen, were both forfeited.(a)</p> <p>A voluntary removal from the reserve will forfeit it, but a removal occasioned by force, or threats, &c. will not be a forfeiture.</p> <p>A notice, that the defendant upon the trial of an ejectment, will prove the value of his improvements, must contain as much certainty as a declaration.(b)</p>

<p>The venue of a cause was ordered by the circuit court of (¿rain-ger county to be changed, and the cause transferred to the circuit court of Greene county, the transcript to be filed fifteen days before its next ensuing term: the transcript was notified until after the expiration of the ensuing term. It was held, that the circuit court of Greene county had not jurisdiction of the cause.</p> <p>Consent of parties cannot confer jurisdiction.</p> <p>A sale of land under an execution in which the items of costs are not charged at length, is void.(a)</p>

<p>An action of debt cannot be sustained upon a note, payable in? Tennessee currency, or to be discharged in Tennessee currency.(a)</p>

<p>A merchant licensed to retail merchandize, &e. is not thereby authorized to sell wine or other liquors in less quantities than a quart.</p> <p>A merchant who retails wine in less quantities than a quart, is liable to be indicted, although it was sold for the purpose of being- used as a medicine.</p> <p>If the Legislature have made no exceptions to an act of Assembly, the courts have no power to make them.</p>

<p>Whore notes are made and endorsed to be discounted at a greater rate ofinterest than is allowed by law, they are usurious, (a)</p> <p>W hat is usury, or what is not, remains the same under the act of 1819, as that which was defined and held to be usury, under the act of 1741. The only difference is, that under the act of 1819, the security is only avoided for the excess of interest. Per Peck, Judge.</p>

<p>An indictment will not be quashed upon the ground, that the in-dorsement on its back, stating that “the witnesses were sworn and sent to the grand jury,” is not signed by the clerk.</p> <p>It is a general rule, that subsequent statutes which add accumulative penalties, or institute new modes of proceeding, do not repeal former penalties, or methods of proceeding, without negative words.</p> <p>The act of 1827, ch. 40, does not repeal any of the previous laws to suppress gaming.</p> <p>The indictment charged, that the defendant did “gamble, hazard and bet on a game of hazard and address, called thimble, and did hazard on said game money and bank notes;” held, that this was a sufficient averment that the defendant played at the game.</p> <p>When a demurrer to an indictment for a misdemeanor has been overruled, the defendant will not be permitted to plead to the indictment, as a matter of right; he must lay a sufficient ground, before the permission will be granted.</p> <p>The Attorney General cannot, by contract with defendants, except-as to his own fees, postpone the payment of the judgment; he has no power over the judgment of the court.</p>

This was a bill in equity, filed by Hancock against Bryant and Hunt. The object of the bill was to obtain a perpetual injunction against a judgment obtained by-Bryant against Hancock, as security of a man by the name of M’Neill. From the proof in the cause, it appeared that Hancock and Hunt became bound in a bond or note, as securities for M’Neill. At the time they became his sureties, he was a merchant, residing in Warren county.

<p>When it appears on the face of the record, that the suit was in stituted before the note or bond was due, the judgment will 'be ar rested.</p>

<p>An infant’s property is liable to satisfy the fine and costs adjudged against him, upon his conviction for a crime or misdemeanor, (a)</p>

<p>An indictment for a public nuisance, in frequenting and haunting houses of ill-fame, must expressly charge, that “the defendant, knowing the house to be a house of ill-fame, did, openly and notoriously, haunt and frequent the same.”</p>

<p>Twelve and one half per cent, interest from the rendition of a decree below, will not be allowed upon affirming it in the supreme court.</p>

<p>. Where the chancellor upon the hearing below, improperly permitted a deed to be read in evidence by the complainant, and without which he could not obtain a decree, it was held, that this court would not remahd the cause, to permit the complainant to supply the want of this evidence, by other legal testimony.</p>

In this cause, Judges Whyte and Catron were disqualified from sitting. It was accordingly certified to the governor under the provisions of the act of 1829, ch. 98, who appointed David Craighead, Esq. of Nashville, and John J.-White, Esq. of Gallatin, special judges, to determine the cause, in conjunction with Judge Reck. The case was argued by P. M. Miller and G. S. Yer-ger, for complainants, and F. B. Fogg and Washington, for defendants.

<p>The certificate of the probate of a deed was as follows? “State of North Carolina, Washington County, February term-, 1790; then was the within deed acknowledged m open court, let it he registered.” It was held, that this was insufficient to authorize the deed to be read to the jury, (a)</p>

<p>A bond, conditioned “that the plaintiff shall prosecute a suit this day commenced by him in the circuit court of Washington county with effect, or in case of failure, pay all costs,” &c., is void for uncertainty.</p> <p>The bond ought to state against whom the suit was commenced, and the nature or kind of action, whether debt, case or covenant, &c.</p>

<p>A court of equity has jurisdiction to declax-e deeds and other instruments void,and to order them tobe cancelled and delivered up.</p> <p>A conveyance of land made upon a gaming consideration, will be set aside and declared void in a court of equity.</p> <p>The act of 1799, ch. 8, sec. 4, limiting the time of bringing suits for property lost, to three months from the time of delivery, does not apply to a conveyance of land made upon a gaming consideration.</p>

By a deed of cession, dated February 25th, 1790, executed by her then Senators in Congress, North Carolina transferred to the United States all right, &c., which said state had to the sovereignty and territory of the lands which now constitute the state of Tennessee, reserving to herself the right of perfecting certain titles, &c. In 1796 this territory was admitted into the Union by the name of the State of Tennessee.

The indictment in this case charged, “that Reuben Tipton, on the second day of August, in the year of our Lord eighteen hundred and thirty, at Maryville, in the county of Blount aforesaid, and on divers other days before that time, was openly and notoriously drunk, to the disturbance of the public peace, to the great injury of the public morals of the good citizens of the State, and to the evil example of all others, &c. and against the peace and dignity of the State.” The…

John C. Gunn and Jacob Peck, executed a note to W. and Z. Tannehill for ninety-six dollars; Peck executed it as security for Gunn; the note not being paid, they were warranted upon it, and judgment rendered by the magistrate against both. Peck refused to join in a stay of the execution, and it was accordingly stayed by Gunn, who gave Howel as his security.

This was an action on the case, brought by the plain-tifi against the defendant, for enticing away his apprentice. The declaration contained several counts.

<p>The act of 1827, eh. 39, authorizing the court to dismiss Indian reservation cases, where prosecuted for the use of another, is a partial law, intended to operate upon a few individuals, and is unconstitutional and void.</p> <p>By the clause “law of the land” in our constitution, is meant a general public law, equally binding upon every member of the community. (a)</p> <p>Every partial or private law, which directly proposes to destroy or affect individual rights, or to afford remedies which lead to similar consequences, is unconstitutional and void.</p>

<p>A devised as follows: 1st. “It is my will that my beloved wife Martha David, have all my estate, both real and personal, during her life, excepting a debt due me by James Chandon ol’ about three thousand dollars, which I will and bequeath to the grand children of my mother, Mary David, to be paid them equally as they come of age,” &c. 2d. “ It is my will, that my wife Martha) at her death, may have full power and authority to dispose of all njy personal property, money, bank stock, &c. (my negroes excepted) in any manner she may think proper.” It was held, that this bequest gave to the wife the absolute and unqualified property in the personal estate, (the slaves excepted) which upon her death, without making a will, vested in her distributees.</p>

<p>The purchaser of a bill single, to whom the same had not como by regular assignment from the obligee, cannot recover upon it in his own name.</p> <p>Where suit is commenced on a note in the name of the equitable owner, the warrant cannot be amended upon the trial, by inserting the name of the legal owner.</p>

<p>The return of an execution upon a magistrate’s judgment “ no personal property found, and levied on sixteen acres of land;” is a sufficient return to authorise an order of sale of the land, by the county court.</p>

<p>A person against whom surety of the peace for good behaviour is demanded, and who has been recognized from time to time to keep the peace, is not liable for costs on being discharged from such proceeding against him.</p> <p>Costs are created by statute; and where they are not given by statue, no court can ex officio give them against any person.</p>

<p>Two justices of the peáce have no power (under the act of 1829, ch. 16) to order a clerk of the circuit court to issue writs of cer-tiorari and supersedeas, returnable to that court; in such case the court must dismiss the cause for want of jurisdiction.</p> <p>Where the court dismisses a cause for want of jurisdiction, no judgment can be rendered for costs.(a)</p>

<p>A deed of gift of slaves, to take effect after the death of the donor, is valid, (a)</p> <p>Delivery of possession is not essential to the validity of a gift, where the gift is;evidenced by writing.</p> <p>In such case, a subsequent gift, or disposition of the property, is void as against the first donee.</p>

<p>On a presentment for open and notorious lewdness, it is no defence that the parties verbally contracted marriage and lived together as man and wife, according to the common law. The mode of contracting and solemnizing marriages prescribed by our statutes, must be strictly adhered to, otherwise the marriage is void, and the parties liable to indictment.</p> <p>In an indictment for “open and notorious lewdness,” it need not be proved that the act or acts constituting this offence, were committed in' the public streets, or under the immediate observation of divers spectators. It-is enough, that the parties being unmarried, live together as man and wife, and that fact generally known throughout the neighborhood.</p> <p>Offences against good morals, and “grossly scandalous, and publicly indecent,” are properly cognizable in the courts of pleas and quarter sessions in Tennessee, as in the spiritual courts of England.</p>

<p>The act of 1829, ch. 95, creating a special court for the determination of suits cómmenced by the Bank of the State of Tennessee against her officers, and other defaulters to said institution, is unconstitutional and void, (a)</p> <p>The act is retrospective in its provisions, violates the right of trial by jury, is partial in its operation, and is not a “ law of the land,” within the meaning of the constitution.</p>

This was an action of ejectment. The lessor of the plaintiff proved, that the land in controversy was granted by the State of North Carolina to his father Alexander Nelson, that his said father was dead, and that he was his only son and heir.