Volume 11 — Tennessee Reports

The jith section of the act of 1789, ch. 23, requiring exeGU-tors and administrators to advertise, &c. is not conditional, but directory. The bar will therefore attach, whether the advertise-merit has been made or not. Money received by an intestate, as guardian, must be sued for against his administrator, within the time prescribed by the act of 1789, ch. 23, or the same will be barred. Daniel Young, in bis life tíme, wa$ the guardian of the complainant, Hooper.

A contract for land will not be specifically executed in equity,, unless it is clearly proved to exist, and must be certain in its terms. Where A has agreed to sell and convey land to B, and executed a title bond, and B afterwards verbally contracts to sell to C before he has obtained a deed from A, the latter contract is within the statute of frauds, and must be in writing.

The assignee of a note given by the vendee to the vendor, for part of the purchase money of a tract of land, is not entitled, by virtue of the assignment of the note, to the benefit of the lien which existed before the assignment, against the vendee. v sold a tract of land to 'James G. Hicks, and took his notes to secure the payment of the price, and gave a bond to convey the title to the land when the price should be paid.

Where A sold to B a judgment on C, who was known to both to be insolvent, and falsely represented that C had promised to pay the judgment in plank, which was ready at his, 0⅛ saw mill, whenever… Held: that this was such a falsehood and fraud as would be sufficient in equity to rescind the contract. This bill was filed to rescind a contract or sale of a judgment recovered against Trott and M’Broom, made by Huddleston to Pearcy.

A loan of slaves to a married daughter, when possession is continued for five years and upwards, subjects the slaves under the act of 1801, ch. 25, sec. 2, to be levied on and sold for the debts of the husband. The third section of the act, only applies as between the loan- or and borrower, and saves the right of the former to reclaim and recover the property loaned. In 1812, William B. Walker married a daughter of the complainant.

The act of Assembly of 1777, ch. 23, sec. 2, providing for the condemnation of land to build grist mills upon, is not unconstitutional. The owner of the fee takes the land subject to the right of eminent domain, the State fox public purposes, and the legislature of the State can designate the public purposes to which it is to be applied.

Upon a bill filed by the holder of a title bond against the purchaser,under his obligor, to have a particular piece of land decreed to him, the proof must be clear and satisfactory that the particular piece of land is embraced by the bond, or the bill will be dismissed. The lapse of thirty years from the time when the holder of a title bond could have demanded title to the land prayed to be decreed, will form a bar to a decree for a specific performance.

Trustees, in whom the legal title is vested, are parties in interest, so as to oust the federal courts of jurisdiction, where the trustees reside in the same state with the complainants, but the cestui que trust resides in another state.

Where negroes are sent with the husband and wife upon mar-xiage, by the wife’s father, the law will presume they were given by the father-in-law to the son-in-law, and fix the property in the son-in-law, unless the presumption is rebutted by proof, showing that a loan only was intended.

A magistrate has no power or jurisdiction to issue an attachment returnable before himself, where the debt exceeds twenty dollars : a judgment rendered by him in such case is absolutely void. Held: that the creditors of the loanee, who were such at the termination of the first loan, w^re entitled to have their debts satisfied out of the property ; but those whose debts were contracted during the second loan, were not.

Where land is sold and a deed executed, equity will not decree compensation for a surplus quantity contained in the tracts unless fraud, or a sale by the acre, is clearly proved. Hendricks, in his life time, sold and conveyed by deed to Mosely a tract of land, stated in the deed to contain eight hundred and four acres. On actual survey, the tract was found to contain eight hundred and sixty-six acres.

A guardian or executor has no power to change the personal property of an infant into realty. If it is done, and the infant' dies before 21, a court of equity considers it as personal property, and will divest the legal title out of the heirs at law, and vest it in the distributees. Craven Jackson sold lot No. 27, in the town of Nashville, to Hicks, taking his notes for the money, and a mortgage on the lot to secure their payment.

A bill will lie by the judgment creditor, after exhausting his remedies at law, to sell the real estate of the debtor in which he has only'an equity.

A paper writing, purporting tobe the copy of a deed of conveyance, cannot be read in evidence without a probate, undei the act of 1809, ch. 14, sec. 8, and the other acts upon the same subject, although such paper writing be registered. The bill states there was issued by the state of North Carolina to 'John Gray Blount and Thos. Blount, grants No’s. 182, 200, 226, 214, 175, 184, 258, on 10th July, 1788, for 1000 acres each.

A testator (who had two sets of children,) devised all the lands o'f which he was seized to the younger set. Held: that before the younger set of children could entitle themselves to a share of the subsequently acquired real estate, they must bring into hotch pot the land devised to them.

A court of equity will not entertain jurisdiction of a case which has undergone a full and fair investigation at law, unless the party has been prevented by fraud, or accident, or the act of the opposite party, unmixed with negligence on his own part, from making his defence.

It is a general rule, that this court will presume the evidence was sufficient to authorize the verdict, unless the party who prays for a now trial, shows that all the evidence is in the bill of exceptions. Rut where a point of law is desired to be raised upon the construction and effect of an instrument, and the court are satisfied from the facts that no other evidence was relied on, it forms an exception to the rule.

When an administrator’s account is settled by commissioners appointed by the court, it will not be opened for alleged mistakes and errors in distributing- the property, after the expiration of twelve years from the time the supposed errors or mistakes were discovered : a court of equity will not relieve’ after such a lapse oí time. In the settlement and distribution of an intestate’s estate, the property ought to be valued at its worth at the time of the death.

If a complainant’s cause of action originates in iniquity, although he may have the right as against his antagonist, chancery will not afford him relief. But if, in the establishment of an honest and clear right, a complainant is guilty of fraud or perjury as to some part of Ins proof, independent of which there is sufficient unexceptionable evidence to establish his claim, the court will not, on account of such misconduct, refuse him its aid.

A party will not be aided by a court of chancery, after a trial at law, unless he can impeach the justice of the verdict on grounds which he could not have availed himself of at law, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part.(a) The bill charges, that in the year 1818, John 3.

An action of detinue founded on a wrongful detention of property, brought against an intestate in his lifetime, cannot be revived against his administrators in their representative capacity, after his death. An action of detinue cannot be sustained against an executor or administrator as such. The aOtion will lie against them as against other individuals, upon their own wrongful detention.

An appeal will only lie from a final decree. A decree ordering an account, is not suck a final decree or determination of the cause, as will authorize an appeal from it.

An entry for land was made on the 23d September 1785. The warrant on which it was founded, purported to have issued on tho 30th Sept. 1785. The entry referred to the warrant, by its number 2420. Held: in the absence of fraud, and alter so great lapse of time, it will be presumed there was a mistake as to the time when the warrant was issued, and that the entry was valid.

Questions of boundary aro exclusively within the jurisdiction of a court of law, with a few exceptions; and in order to entitle a party to the aid of a court of equity, he must bring himself within the exceptions. When a court of law and a court of equity have concurrent jürisdiction of tho matter in dispute, the court which takes jurisdiction settles the matter conclusively.

Lands conveyed by deed, which has not been proved and registered, are nevertheless subject to levy and sale by execution. Held: that this was a fraud upon the purchaser at execution, and equity will divest the title, and vest it in such purchaser. A levy on land is sufficiently certain, if it describes it msuch manner as to distinguish it from all other tracts owned by the same person.

Fraud or misrepresentation of any material circumstance upon the part of the vendor, in relation to the land sold, will authorize a rescisión of the contract of sale upon a bill filed by… Held: that a false representation by the buyer in a mattpr merely gratis dictum, in respect to which he was undejf no legal pledge or obligation to the seller for the precise accuracy of his statements, and upon which it was the seller’s own indiscretion to rely, was no ground of action.

Courts of equity, to the same extent as courts of law, are bound by the statute of limitations in all cases of bailments, loans, powers, deposites, &c. although express trusts, when there are concurrent remedies at law and in equity. At law the statute of limitations applies, and may be pleaded in every case, in which the species of action brought is embraced by the words of the statute; as “case,” in all its varieties.

When separate suits have been brought against the maker and the endorser of a note, and separate judgments recovered against each, and an appeal taken by each, and the judgment in each case is affirmed with 124 per cent damages; and one judgment including the damages is paid; the damages of 12⅞ per cent upon the other cannot be collected. In such a case, a super-sedeas will lie to the execution. The satisfaction of one of the judgments, is a satisfaction of both.

The adjudication of the commissioners of land claims upon an assigned land warrant, is prima facie evidence, that all the assignments and transfers are bona fide, and upon sufficient consideration. The facts in the case are sufficiently stated in'the opinion of the court, and supersede the necessity of a re-statement.

Under the acts of 1782, ch. 3, sec. 7, and 1783, ch. 3, sec. 8, none hut military claimants and pre-emptioners had a right to make entries upon lands embraced in the military boundary.

If the maker of a note, or drawer of a bill, deposite a note on a third person, or other funds, with a trustee, as a collateral security for his endorser against liability upon the note, the en-dorsees or holders of the note have a right to come into a court of equity and have the fund decreed to satisfy the note. In such a case, a judgment at law against the endorser is not necessary to be had before equity will give relief.

To constitute the offence of malicious mischief under the act of 1803, ch. 9, malice against the owner, and not towards the animal, is required. The defendant was indicted for maliciously killing several steers, the property of A. G. and R. Goodlett.

Before bail in a criminal case can be made liable, the record ... must show that the principal was called and did not appear.

If, in a criminal case, the recognizance be taken for the appearance of the defendant to answer the charge, upon a day when the court does not sit, the recognizance is void, and no judgment can be had thereon against the bail. This cause arose upon a motion to quash a scire facias issued from this court against the defendants, as bail of William Porter.

When malice is a necessary ingredient in constituting the crime charged, the government must prove the malicious intent with which the act was done. In such a case, if the jury have a reasonable doubt of the malicious intent with which the act was done, that doubt must weigh in favor of the prisoner; and unless removed by the government, they must acquit him. The facts material in this cause are stated at length in the opinion of the court.

A levy of an execution on the debtor’s property, sufficient to satisfy the demand, is a satisfaction of the judgment, although a delivery bond was executed, and forfeited. If an alias execution issues on such judgment, it will be superseded, and on motion quashed. Young and Whitcomb recovered a judgment for .f 130 and costs, against Robert Johnston and William Atkinson, as principals, and Joseph Read as their security.

Where a certiorari is granted by two justices returnable to the circuit court, it will be dismissed upon motion for want of jurisdiction. In such case, no judgment can be rendered on the certiorari bond against the principal and security; nor any judgment for costs, except the-costs of the supreme court. This suit was commenced before a magistrate, and judgment rendered against Wade H. Turner, as the endorser of a note for ‡7 50, and costs.

The drawing of an order by A. in favor of B, is prima, facie evidence of indebtedness by A to B, and the acceptance of the order by the person on whom it is drawn, is likewise prima facie evidence of indebtedness by him to the drawer. A declaration upon such order, averring that it was drawn in consideration of a debt due by the drawer to the plaintiff, and accepted by the defendant, is good, without averring any other consideration.

^ sheriff, or other sworn officer, is always presumed to do his A sheriff’s deed, reciting “that he legally advertised and made known the time and place of sale,” &c, is prima facie evidence that the defendant in possession had the notice required by the act of 1799, ch. 14. In such case, the defendant must prove that he had no notice.

An appeal from a justice, not stating to what court the appeal was prayed, may be amended in the circuit court, the recital in the appeal bond showing it was granted to that court. This was an appeal from a magistrate’s judgment.— The proceedings returned, showed that an appeal had been prayed and granted, hut they did not show to what court the appeal was prayed, except from the condition of the appeal bond, which recited that an appeal was prayed to the circuit court.

The redemption money of lands struck off to the school commissioners, for the non-payment of the county taxes, must be paid to the county trustee for the use of the county. A motion made against the sheriff for the non-payment of county taxes, must be in the name of the chairman of the county court.

¶⅛ act of limitations of 1789, ch. 23, sec. 4, does not bar demands or notes, not due at the death of the testator, or intestate, nor such as fall due after administration taken out. The act only begins to run from the time a cause of action has accrued, and when there was an administrator or executor to be sued, and not before. Error from Haywood county.

The statute of limitations of 1715 does not bar actions of debt generally, but those only which are brought for arrearages of rent.

The prosecutor has no authority to employ counsel to aid in the prosecution; the state may employ assisting counsel, and the counsel have the same right to appear that they would have in a civil cause. An attorney must always show his power and authority to appear in a suit, when disputed by the adversary party. From an order of the court, refusing to permit an attorney to appear in á cause for want of authority, no writ of error will lie.

The act of assembly of 1777, ch. 8, sec. 5, applies to the return of executions, as well as to original writs. A return on an execution in these words, “Came to hand 8th November, 1830 — no money made on this writ,” is not such a return as the act of 1777, ch. 8, sec. 5, requires. Upon such a return the plaintiff in the execution is entitled to have a judgment nisi, on motion against the sheriff, for the [penalty given by the act.

Upon the promise to pay the debt of another, the act of 1801, ch. 25, sec. 1, does not require that the consideration for such promise shall be in writing. A guaranty in these words: “On the 25th December, 1824, we hind ourselves to see the within note paid, March 19, 1824,” endorsed on the back of the note of a third person, and signed by the guarantor, is a good promise within the act of 1801, ch. 25, sec. 1.

The county court have the authority to displace a guardian when they deem it necessary to the interest of the ward. The conversion of the real into the persona! estate by the guardian, is an act unauthorized by law, except through the aid of a court properly constituted, and is a sufficient cause for the removal of a guardian. The appointment of an administrator to be guardian of the heirs; is improvident and not to be encouraged.

The levy of an execution on lands must show the location of the lands levied on, to a reasonable certainty. A levy in these words, “came to hand 27th March, 1810; le-levied on eight thousand acres of ⅛⅛ lying is four dinjreni tracts, April 28th, 1810,” is not sufficiently certain, and a sale under it is void, and communicates no title to the purchaser.

A, a stranger, furnished three hundred dollars to be laid out in negroes for the benefit of B’s children; B added the same amount, and purchased negroes for the… Held: that the latter purchase was not fraudulent against creditors, but'was valid, and passed the property to the children at law. Error from Henry, circuit court. This cause was argued by Mr. Hugh W. Dunlap for Holland and Coates, and by Mr. M. Brown for Allen and wife. The facts of the case are stated in the

Lands were sold by an ancestor, by deed, which was not pro-veij or registered as required by law; they were after the death of the ancestor,… Held: that the latter purchasers would hold the land. Lands lying in the Indian boundary, were conveyed by a nonresident grantor; the deed was proved in Davidson county, and was registered in Davidson and Stuart counties; Stuart county, by its then boundaries, included the land: held, that the probate and registration were sufficient.

The execution by a public officer, of a power to sell lands for the non-payment of taxes, must be in strict pursuance of the law under which it is made, or no title is conveyed.

A court of equity will interpose and perpetually enjoin a void judgment, though it is obvious the party seeking the aid of equity, could obtain relief ⅛ a court of law. Bill for an injunction. The case was, Hartsfield re-' covered a judgment in Bedford county court against William R. Hess, upon which execution issued directed to the defendant, (who was sheriff of Haywood county,) and was by him duly received.

No act will amount to a confirmation of an impeachable transaction, unless the party has become aware of the fraud, and is also aware that his act will have the effect of confirming it. The act of giving a promissory note, does not of itself amount to a confirmation of an agreement that could be avoided at law for fraud, unless the promissor knew that there was fraud, and that his act would confirm the transaction.

The clerk who is entitled to costs on the judgment sought to be enjoined, is not a proper party to the bill, and service on him does not give the court jurisdiction to proceed against the others, and decree against him for the costs of the suit in equity. A suit in the names of' George S. Elliott and Patrick Darby, against Joseph M’Reynolds, got into the supreme court at Nashville, of which court Randal M’-Gavock is clerk.

The county court have the power with the consent of the administrator, or upon good and sufficient cause shown, to cause the administrator to surrender up his administration, and appoint another This bill was filed by the complainant, as administrator of Seth Wade, deceased, to recover the slaves mentioned in it, alleging that they were the property of Henry Wade,in his lifetime; that complainant’s intestate was one of the distributees of said Henry Wade, deceased, and that…

When an injunction bill has been dismissed, and a decree rendered against the complainant and his securities in the injunction bond, which remains unreversed, a court of equity will not give relief, though the judgment to enjoin the execution of which the bill was filed, may have been set aside by the court of law in which it was rendered.

A court of chancery has no authority to hear witnesses viva voce; their examination must be in writing; to hear it otherwise, is erroneous when objected to by the parties. This was a suit in chancery, instituted in the circuit court of Perry county.

When a person has a legal advantage, before a court of equity wjjj remove ⅛6 pergon seeking to have the relief will be compelled to do equity himself. If a court of equity would place the parties in the same sitúa tion that the law has placed them, it will not entertain a bill for relief against the judgment at law. A court of equity will not enjoin a judgment at law, to give the party the benefit of the statute of limitations, which he did not plead at law.

When a person for whose benefit a-deed of trust is executed upon real and personal estate, has the power given to him to direct and control the sale, the time, manner, and terms upon which it is to be made, he is not permitted to purchase the legal title, however innocent and free from fraud the purchase may be. Such sale and purchase may be set aside at the election of the heirs or creditors of the conveyor in the deed of trust.

The county courts of this state have jurisdiction to license fer-ríes across navigable rivers, though the opposite bank be without the limits and jurisdiction of the state. The right to the use of water courses for the purpose of passage and navigation, by the citizens of one state within the jurisdiction of another, is an easement subject to common use; and the same is true of the banks of those streams.

If a warrant commanding the arrest of an individual in the name of the state have no seal, it is void. If an officer attempt to arrest the party named upon such authority, he proceeds at his peril, and is a wrong doer; and if he be killed in the attempt by the party, the slayer is guilty of manslaughter, and not murder.

When a party dies during the pendency of the suit, and a judgment or decree is rendered without any notice of the party’s death being taken in the proceeding, the judgment or decree is void for want of jurisdiction. Upon a suit founded on such decree, the want of jurisdiction in the court rendering the decree, may be taken advantage of by plea, if it do not appear upon the face of the record.

Under the act of limitations of 1819, ch. 28, sec. 2, a person in the actual possession of land for seven years without any title, is protected in his possession. Held: except that which is actually occupied by enclosure, definite, positive, and notorious.

The verdict and judgment of recovery had against a purchaser, cannot be read in evidence in a suit by the purchaser against his vendor on the warranty, unless the vendor was notified of the existence of the suit, so that he could defend if he chose. A judgment may be given in evidence to prove its own existence, no matter who were the parties, but not to charge a person not a party, and thereby conclude him.

A deed grounded on a void tax sale, may be confirmed, and draw to it, and extinguish the out standing legal title. If the legislature has made no exceptions in a statute, the courts can make none, (a) The act of limitations will prove 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, (a) A probate in these words, “State of Tennessee, Greene county, January sessions 1807, Tuesday 27.

A certiorari and supersedeas will be dismissed, if no bond to prosecute them be given, or if some cause is not shown why they were not applied for to the next term of the circuit court after the judgment rendered.

When a judgment by default is taken against a defendant, and before the writ of inquiry is executed the defendant dies, a final judgment in the case against the defendant, without noticing his death or reviving the suit against his adminstrators, is void, and may he taken advantage of by the administrators, upon plea to a scire facias issued against them.

The act of 1794, ch. 1, sec. 19, does not authorize the issuance of an attachment where a party moves out of the county openly and notoriously, or where a party may have removed and taken up his residence in another county in this state; and this may be made a matter of defence by plea in abatement when the attachment is returnable to a court of record; or may be given in evidence where the trial is upon proceedings originating before a justice of the peace.

Under the acts of 1811, ch. 24, sec. 4, and 1824, ch. 17, an insolvent debtor taken upon capias ad satisfaciandum, may appear in court, deliver a schedule of his property, and be discharged, although he may have sold a part of his property after the service of the ca. sa. and execution of the bonds to appear at court.

An appeal on the merits seeking a second jury trial, can be prosecuted informa pauperis. The pauper upon making the proper affidavits, is entitled to all the rights of appeals, and writs of error that he could have under the law if he were able to give security as required. A person suing or appealing in forma pauperis, may be dis-paupered, if he have property, under the act oí 1831, ch. 23, sec. 5; but this should be cautiously done.

If an elder entry be special, and its location cannot'be mistaken, whether surveyed east or west of the beginning made by the surveyor, is immaterial against a younger grant. A condemnation of land for the use of iron works, if made in conformity to the act of 1809, will be preferred to an entry made of the same land, after the condemnation.

A judgment must be certain, and contain within itself suffi-ciem precision and certainty to enable the clerk to issue an execution by inspection of it, without any reference to bther entries. When ten are indicted jointly, and sever in their trials, and are found guilty, and fine adjudged against each, and they come in and confess judgment jointly as securities for fine and costs, such judgment must show what eaclr defendant is liable for, or it will be irregular and void.

When three are indicted for a riot, and one is tried separately and found guilty, (the others not having been tried,) judgment upon the verdict must be given against him. When one of three persons indicted for a riot is tried separately, and then a second is tried and acquitted, the court cannot arrest the judgment upon the finding of the jury against the first, but must enter judgment upon the verdict.

A plea by an administrator of the act of limitations of 1789, ch. 23, is good, without averring that he advertised,;&0. agreeably to the 5th section of said act. This was an action of debt against the defendants, as administrators of Hart. The third plea is, the act of 1789, ch. 23, limiting the suits against administrators to two years, without averring that he advertised, &c. agreeably to the 5th section of said act.

Where a plea or replication improperly concludes to the country, the defect can only be taken advantage of by special •demurrer.

A devise of land is a sufficient color of title to protect the defendant, by virtue of the act of limitations of 1819, ch. 28, sec. 1. Adverse possession is exclusively a question of fact for the jmy- The lessor of the plaintiff sold the land in controversy to Dudley Cox, the ancestor of the defendants, and put him in possession.

A vested remainder in land may be levied on and sold by virtue of an execution, founded on a judgment against the remain-derman. Ejectment for a house and lot in the town of Knoxville. John Fermault in April, 1813, made his last will and testament, and shortly afterwards died.

The verdict of a jury will not be disturbed in the supreme court, unless there existed a great preponderance of evidence against it. Ejectment. The ancestor of the lessor of the plaintiff was a white man, who had married an Indian wife, by whom he had three children. His wife died previous to the treaty of 1817, but his children lived with him, and he resided on the territory ceded by the Indians, when the treaty of 1819 was made.

Under the treaty of 1819, actual occupancy of the place claimed by the reservee, before, at, or after the making of the treaty, and within the time limited therein, is necessary to communicate title to tho claimant. West and wife claimed the land in controversy, as re-servees under the Cherokee treaties of 1817 and 1819. West is a white man, his wife was a native Cherokee. On the 27th May 1818, Mrs. West enrolled her name for a reservation at a place called Tellico Plains.

The indictment charged the defendant with fraudulently sing a counterfeit note; the note was in these words: “This note of seventy five cents, is payable to the bearer at the treasury of North… Held: that the indictment should have averred the existence of the act referred to in the note, and that by the terms of that act, the treasury of North Carolina was bound to pay the note.

Pledging a counterfeit note, which was to be redeemed at a future day, is not a passing, within the meaning of the act of assembly creating the offence. This indictment was for feloniously and fraudulently passing a North Carolina treasury ticket, for seventy-five cents, knowing it to be forged.

A white man, a citizen of the United States, by marrying an Indian wife, taking up a residence among the Indians in the nation, and identifying himself with them, constitutes him the head of an Indian family; and being a resident of the ceded territory at the time of the treaties, and having enrolled his name for a reservation, would have a right to a reservation under the treaties of 1S17 and 1819.(a) If the head of an Indian family took up his residence upon the land he…

When a covenant to pay $1000 in specific articles, contains no agreement as to the place where the property is to be delivered, and the covenantor and covenantee reside in the same county, the covenantor is entitled to demand or notice under the act of 1807, ch.-95, sec. 1. It is not necessary for the covenantor, in his plea of want of notice or demand, to own that he had the property ready at the time fixed for payment.

Tho recor(j 0f a former judgment, in which the value of defendant’s improvements is adjudged him, and which remains unpaid, is no bar to another action of ejectment for the same land, between the same parties. A sale under an execution, which does not recite, but leaves the amount of the judgment in blank, and also the amount of costs, is void, and passes no title.

It is not necessary in a suit upon a guardian bond,'that the guardian should have been proceeded against, and the amount due the ward be ascertained by a decree'e, before the securities can be reached upon the bond. The ward, or those suing for him, may. elect either to have an account in chancery against the guardian, or to proceed upon the bond in the first instance. It is sufficient in assigning breaches, to lay them in the negative of the words of the covenant.

When A covenanted, by the 25th day of December, 1831, to pay, or cause to be paid to B, $200, for the consideration of his relinquishing to W. S. his title to fifty acres of land, &c. Held, that the… Held: that the making the relinquishment is not a condition precedent to be performed by B, before B could maintain an action upon the covenant; but that the acts are to be done by each at the same time, and are concurrent conditions.

If there be one breach well assigned, and which is sufficient jaW) declaration cannot be reached upon demurrer, so as to defeat the plaintiff's action, though the others should not be well assigned. If the breach assigned negative the words of the covenant, it is sufficient.

Where A, a constable, had won a horse race from B, upon which they had wagered $100, and upon the race being determined, B confessed a judgment for that amount, and deposited with A notes upon his… Held: that the delivery of the notes was a payment of so much of the money upon the race, and could not be recovered back unless sued for in ninety days. If a person loose money or property at gaming, he must sue for the same in ninety days, or he is barred.

Upon a sale of goods by deed absolute upon its face, if possession do not follow and accompany the deed, it is prma facie evidence of fraud, and not fraudulent per se. The onus of proof is upon the purchaser to show that the sale was fair, and for a sufficient consideration. This was an action of trover for five negroes. The plaintiff, to support his title, read in evidence a hill of sale for the negroes, dated 23d May 1826, from James Welch to himself.

No suit can be instituted on a sheriff’s bond, in the name of the governor for that other’s use, without an assignment of the bond by the governor to the person injured, according to the act of 1777, ch. 8, sec. 2. This was an action'of debt brought in the name of the governor for the use of Hutchins, against the defendant Hunt and his securities.

The debtor does not release the lien of the creditor upon property levied upon, by obtaining an injunction, so as to subject it to other executions, unless the fiat of the judge order security to be given, and such security is given by the debtor upon obtaining the injunction. A failure by a public officer to give security to refund when an injunction is dissolved, and to proceed with the execution, is not such negligence as discharges the lien of the execution.

The county court has no authority to grant an appeal without taking bond and security as required by law, during the term. Held: he was not entitled to demand or notice. Debt lies by an indorsee against an immediate indorser. This was an action of debt against the assignor of a note. The assignment was special, and the assign- or, by its terms, “bound himself to stand good for the note until it was paid,” and affixed his seal to his signature.

One tenant ’n oommon before partition, cannot convey his interest in a particular part of the land held in common, by metes and bounds; such conveyance would pass no title against the other tenant in common, or one purchasing under him after partition made. In 1797, John Sevier and George Gordon, were tenants in common of 32,000 acres of land in Overton county.

If the defendant in detinue plead the statute of limitations, and avers that the cause of action did not accrue within three years, and the plaintiff reply that the cause of action did accrue within three years, the onus of proving the issues is upon the plaintiff. The statute of limitations applies between mortgagee and mortgagor, in a suit at law brought to recover the mortgaged property by the mortgagee against the mortgagor.

Where a deed is made absolute upon its face, and the possession of the property does not follow the deed, the transaction is -prima facie Fraudulent. In such case, the party claiming under the deed, must show the transaction to have been fair, and upon proper consideration, and not the party claiming against the deed prove it to be fraudulent.

The securities in an appeal from the chancery to the supreme COurt, are liable for the costs of the appeal, and not for the costs that may have accrued in the chancery court. The bill was filed in the chancery court; on the hearing it was dismissed at complainant’s costs, and he appealed to the supreme court, where the decree was affirmed with costs. Stukely and Gillintine were the securities for the prosecution of the appeal.

A judge of the circuit court has no power or jurisdiction to grant an order for a supersedeas to the judgments or decrees of the supreme court. A supersedeas issued to the judgment or decree of the supreme court, upon the order of a circuit judge, will be quashed on motion.

The transfer of an interest in a land warrant, may be infer-from circumstances, to have been made, without direct proof of the fact. If a deposition be read upon the hearing of the cause below, and it does not appear to have been excepted to, no exception can be taken in the supreme court; and defects in the certificates, or the deposition itself, will be presumed to have been waived.

An absolute bill of sale of negroes may be converted into a mortgage by a parol agreement to allow the conveyor to redeem; and this agreement may be inferred from the price given and the mode of dealing between the parties. The statute of limitations of 1715, ch. 27, sec. 5, does not bar the right of a mortgagor to redeem personal property after three years have elapsed from the possession of the mortgagee.

A conveyed a tract of land to B, by an absolute deed, and B gave A a bond under seal of the same date, reciting the conveyance, and covenanted that B, so soon as A paid him four hundred dollars with… Held: that this constituted a mortgage between the parties, and not an absolute sale with liberty to repurchase.

The act of 1831, ch. 14, sec. 1, does not repeal the laws giving to the clerks of the supreme courts, fees for enrolling chan-eery causes in those courts, whether brought there by appeal or otherwise; it only extends to law cases. By the act of 1831, ch. 10, sec. 3, the clerks of the supreme courts are authorized to tax a fee of eighteen cents per copy-sheet, for enrolling chancery cases determined in said courts.

A court of equity will not set aside a voluntary deed to collateral relations of the donor, to the exclusion of his own children, on the allegation of undue influence exercised over great feebleness and imbecility, unless these allegations be made out fully and clearly by proof. And the fact that the donor was at variance with his children, and lived with the donee, is not sufficient evidence from which to infer imposition and undue influence.

The words, “future increase,” in the bequest of female slaves, extend only to embrace such increase as are born after the bequest made, and cannot, by construction, he extended to embrace prior born increase. On the 20th May, 1813, W. Lucas, of Orange county, Virginia, made and published his last will and testament.

A court of chancery has no jurisdiction to enquire into the irregularity of the privy examination of a. feme, covert, to a deed executed by her. A contract between husband and wife, after she had vested her real estate in her husband, that he should, in consideration thereof, so provide by will or otherwise, that at his death the property should be vested in the wife’s brother and sister, is void, unless in writing, under our statute of frauds, 1801, ch. 25.

It is not competent for a defendant indicted for forcibly taking' property from the possession of another, to show title to the property taken, upon the trial oí the indictment. When two or more persons claim a negro, and she is in the possession of one of them, the other cannot take her by violence; if he do, he is liable to be indicted.