Volume 15 — Tennessee Reports

The complainant sold to the defendant, Nicodemus, senior, a tract of land for nine hundred dollars, part of which had been paid, the balance still remained due. The complainant conveyed the land to the defendant, Nicodemus, senior, by deed, in which the purchase money was acknowledged to be paid, but in fact it was only secured to be paid by the several notes of the defendant.

The defendant was sued in covenant upon the following bond: “This indenture, made the 28th day of March, 1820, between James Turk, presiding justice of the court of pleas and quarter sessions of Blount county, and his successors, of the one part, and Thomas Turk of the same county, of the other part, witnesseth, that the said James Turk, pursuant to an order of said court, made the 28th day of March, doth put, place and bind unto the said Thomas Turk, one boy by the name of…

Triplet obtained a judgment against Gray before a magistrate.

<p>For the facts of this case, see the opinion of the court.</p>

In this case a judgment had been obtained before a justice of the peace, in favor of M’Kinney, against Dug-gan, and a certiorari was granted by two justices of the peace of Monroe county, to remove the cause into the circuit court of that county. The petition for the certi-orari was addressed to the judge of the circuit court. The certiorari was dismissed by the circuit court, and judgment rendered against the petitioner and his securities.

Oliver sued M’Cormick before a magistrate upon a note under fifty dollars, and obtained judgment, from which the cause by appeal, was carried into the circuit court of Anderson county.

The plaintiffs brought an action of detinue for several slaves, against Mabry, in their character of executors of the last will and testament of John Smith, who died in the State of North Carolina. They made profert of their authority, the will of the testator, authenticated as follows: State of North Carolina, ) Court of Pleas and Quarter Iredel County. $ Sessions, Feb. term, 1813. “Last will and testament of John Smith, proved by James Campbell.

The bill charged, that through the contrivance and fraud of the defendant, Veal, the complainant was induced to go to Knoxville after night, on the 18th of December, 1830, with a view of securing eight negroes he bad bought of Mrs. Harrison, and for which Veal formed him the Harrisons had brought suit; that after he had arrived at Knoxville, Yeal introduced him to the defendant, Mynatt, as a, lawyer every way qualified to do' his business; that he employed Mynatt to defend…

This was an action of trespass, vi et armis, brought by the defendant in error, Caldwell, against the plaintiff in, error.

Huff was indebted to William Hogan in the sum of six hundred dollars, for the payment of which he executed to him a negotiable note. Upoh this note Hogan instituted suit in the county of Claiborne, and whilst the suit was pending and undecided, Huff was summoned as a garnishee by the defendants in error, to whom Hogan was indebted.

This suit was instituted in Monroe county, September 7th, 1S26. At May term, 1827, it was transferred to Knox county for trial. At August term, 1827, a verdict and judgment were given for defendant, and an appeal taken to the Supreme court. At July term, 1830, the judgment of the circuit court was reversed, and the cause remanded for trial to the circuit court of Knox. At February term, 1832, the cause was re-transferred to J ’ Monroe county.

This was an action of ejectment. The defendants below, M’Connell and Miller, claimed the land in dispute as a reservation to Andrew Miller. The facts were, that Andrew Miller, for about twelve years previous to the year 1518, had resided ata place called Pumpkin town, where he had cleared about seventy-five acres. In the spring of 1818 he removed his family to a place called Toqua, about twenty-five miles from Pumpkin town, where he, built a cabin and some stables.

Hotchkiss filed a bill against Fortson’s heirs, alleging the sale of a tract of land by Hotchkiss to Fortson in his lifetime; and that a part of the purchase money was still due, for the payment of which the land was a lien, and prayed a decree that the land should be sold to pay the balance due.

This was an action of debt, brought by the State of Tennessee by virtue of the provisions of the act of 1831, ch. 71, against the defendant, for selling goods as a merchant, without, having obtained a license therefor.

This was an action of trover, brought by Douglass against Morford and Terrel for the conversion of a slave alleged by the plaintiff ip be his property. A verdict was returned for the defendants, Morford and Terrel; upon which judgment was rendered in the circuit court. From this judgment Douglass prosecuted an appeal in the nature of a writ of error to the supreme court.

contended that the judgment ought to be affirmed because a provocation, not offered at the time a personal injury was inflicted, is no justification or excuse, and that it ought not to mitigate the offence. I-Ic cited 3 Starkie's Ev~ 1461: Avery vs. Ray, 1 Mass.

This was an action of debt in the detinet, against the defendants in error as executors de son tort. The writ was returnable to the August term, 1831, of White circuit court. At that term a declaration was filed, and the defendants put in a demurrer thereto.

This suit was commenced before two magistrates. The defendant was a constable, and sold a cow belonging to plaintiff under executions founded upon judgments rendered against the plaintiff by justices of the peace. The cow sold was the only one owned by the plaintiff. The executions under which she was sold bad not endorsed upon them the time when the contract was made.

The President, Directors and Company of the Bank of Tennessee recovered a judgment against George W. Sevier, in the Overton circuit court for the sum of eight hundred aud sixty-seven dollars and fifty cents; upon which an execution issued and was placed in the hands of Matlock for collection on the 5th April 1830, who failed to return the same on the second day of the term to which it was made returnable, or to pay over the money therein called for.

<p>• The facts of this case are accurately stated in the opinion of the court.</p>

This was an action bf debt brought by the plaintiffs in Marion county court. The defendant pleaded in abatement of thé süñimons; 'that it was not signed by the clerk; but by some person not by him authorized to do so. At the same time several pleas in bar were filed. The plains tiffs replied to the pleas in bar, and issues were taken; and moved the court to strike but the plea in abatement.

<p>The condition of an appeal bond, upon an appeal from a judgment rendered by a magistrate was as follows: “to be void on condition that the said William H. M’Gee doth prosecute an appeal by him prayed, and obtained to the next circuit court, &c. Held, that this was insufficient to authorize a judgment to be rendered against the surety in the bond.</p>

On the 10th of January, 1825, the defendant, Beidle-man, executed his note or bill single under seal to Sandy Owen, for five hundred dollars, payable twelve months after date, which was on the same day assigned and delivered to the plaintiff Lawrence, who brought this suit upon it on the 1st of February, 1833. The defendant pleaded the Statute of Limitations of six years; and also the Statute of Limitations of three years, of 1786, ch. 4, sec. 5.

This was an action of ejectment. The lessors of the plaintiff are described in the declaration as commissioners for the tract of school land in Tally’s Cove. Upon the trial, the order appointing them school commissioners was read.

Tin's was an action of detinue urrocovar a mare. Tho defendant pleaded non detinct.. A verdict and judgment vroro rendo fed for tbo defendant. Upon the trial, it appeared that ¡.be defendant was the-; keeper of a public house in Overton county. The smuo was. heft with him by a man by the name of Campbell, for an íudeímite timo.

On the 16th January, 1830, Peter Elrod sued Robert Officer to April term of the White county court, in a plea of trespass on the case, and at the return term issue was joined. At January sessions, 1831, a verdict and judgment were had for the plaintiff for one hundred and fifty four dollars. From this judgment the defendant, Robert Officer, appealed to the circuit court.

James Dixon executed to John It. Patrick & Co. a note for seventy-eight dollars and thirty-two cents, dated 12th May, 1831, and due one day after date. On the 11th June, 1831, Dixon was warranted on said note, and the warrant returned before Jacob Vanzant, a justice of the peace for Franklin county, and on the 18th of said month a judgment was rendered by said justice upon said note for the amount thereof and interest.

The facts, upon which the opinion pronounced in this case is founded, are stated in the opinion of the court as delivered by the Chief Justice.

This is an action on the case. The plaintiff declared upon a special contract, as follows: “that whereas said Townsend was an habitual drunkard, he promised and undertook that if the said Fisk, who was a medical doctor, would cure him, the said Townsend, of his disposition and appetite for ardent spirits, and thereby effect a cure, that he, the said Townsend, would pay to said Fisk one hundred dollars.” The plaintiff then averred, “that he, the said Fisk, by his…

This was a motion made by Dale, to be' restored to the possession of a part of a tract' of land of which, as he averred, his tenants were wrongfully dispossessed by the sheriff, in executing a writ of possession founded upon a judgment in ejectment, recovered by Hickman against him at the last term of this court.,.

Elijah D. Robbins obtained two judgments against John Faris, at August session of the county court of Franklin, 1828: one for one-hundred and seventy-three dollars and eleven cents; the other for seventy dollars and thirty-seven and a half cents, and costs.

The complainants, legatees of Wingfield Shropshire, deceased, allege in their bill, that the said Wingfield Shropshire devised, among other property, a negro boy, Ned, to his wife, Catharine, during her life of widowhood, with the remainder to the complainants and the defendant James H. Shropshire, who were his children; that Catharine was appointed executrix of the ■ will, had it proved, and took upon herself its execution; that James H. Shropshire took the boy Ned without…

On the 24th of December, 1830, the defendant, Bradford, sold to Rolla P. Raines, two lots, lying in the town of Winchester, for the consideration of $412 50, and took Raines’ notes, payable in one, two, and three years after that date, for the purchase money. Bradford executed to Raines his title bond, covenanting to make him a conveyance, when the consideration money was paid.

The bill of complainants was filed September, 1819, and charges that Peter Turney died in Smith county in the year 1804, having first made his last will and testament,.and therein appointed Wm. Martin and defendant, Sampson Williams, executors; that Martin renounced, and that Williams qualified at June term, 1804, of Smith county court.

This bill was filed in the year 1831, and charges, that at the January term, 1824, of the circuit court for Franklin county, the complainants Reeves and Thomas Faris, recovered a judgment against John and George Dougherty, for the sum of one thousand and fifty dollars sixty-nine cents, and also one hundred and thirteen dollars seventy'five cents for costs of suit; that said . , . . n , . «it * judgment is yet unsatisfied and unpaid; that an execution has been issued thereon,…

In the year 1805, and from thence to 1815, James-White and John Dougherty were partners in trade. The firm was established originally at Cumberland Gap, under the style of White and Dougherty. Dougherty was the acting partner. In 1815, White and Dougherty dissolved. Dougherty purchased out White’s interest in the concern for ten thousand dollars, and became responsible for all the debts the firm owed. This was in June, 1815.

The plaintiff in error, Kirby, was indicted in the circuit court of White county for the murder of Peter Elrod. The indictment was in the usual form of an indictment at common law for murder, with the exception that the murder charged in it against the defendant, was alleged to be murder in the first degree.

This was an action of debt, in the name of the State, for the penalty of one hundred dollars, for hawking and peddling without license.

The defendants were indicted for gaming in Warren county. They pleaded in abatement to the indictment, that Lewis Thomas, one of the grand jury, who found the indictment, was not a freeholder or householder.— This plea was demurred to by the attorney general. The demurrer was overruled, and the plea sustained by the circuit court. From the judgment of the circuit court, overruling the demurrer, the attorney general prosecuted a writ of error to this court.

This was an action brought by the plaintiffs against the defendant, on his bond, as clerk of the county court of Washington.

This is a suit by scire facias, on the following prosecution bond: “Know all men by these presents, that we, Adam Gann and John Blair, of the county of Washington, and state of Tennessee, are held and firmly bound unto Adam Broyles, his heirs or executors, administrators or assigns, in the sum of five hundred dollars;.to be void, on condition that the said Adam Gann shall prosecute a suit by him this day instituted against the said Adam Broyles, with effect; or in case of…

The bill states, thatin the year 1800, the complainant intermarried with Thomas G. Watkins, who received from her father property to the amount of ten thousand dollars, as her… Held: that she was not bound by her contract, entered into during coverture. In delivering his opinion in the case, the Master of the Rolls uses this strong language: “But no interest of hers will be bound but by her own consent, not taken by the negociation of friends, but by the court itself.

This action was brought in 1823, upon an open account of between four and five hundred dollars. A trial was had in August, 1834, when Anderson, the plaintiff, was introduced, as a witness, to establish the account, on the ground, that, by the act of 1825, ch.29, Smith, for whose use the suit was brought, was to be considered the real plaintiff. The witness was objected to as incompetent, but the objection was overruled, and the witness admitted, to which exception was taken.

At the February term, 1834, of the county court of Davidson county, Person recovered of R. C. Napier, one hundred and seventeen dollars and seventy cents.

This was an action of debt, commenced by the plaintiff in error against the defendant .in error, (a constable.) The action is founded on the act of 1777, ch. 8, sec. 7, the provisions of which act, the plaintiff insists, was violated by the defendant, and by which be forfeited the sum of one hundred and twenty-five dollars. The facts of the case are stated in the opinion of the court.

This was a petition filed in the county court of Giles, praying the court to appropriate an acre of land for the use of a grist mill, &c.' The court rendered a decree in favor of the plaintiff, from which the defendants prayed an appeal to the next circuit court, to be holden in the county of Giles, which was allowed by the court.

This is an action by the endorsees, against Bate, as an endorser of a note payable at the Branch Bank of the U. S. at Nashville. The note was duly demanded and protested, and on the day of protest, notices were forwarded by mail to the endorser, Bate, directed to him at Cairo.

This was an action brought by Bradley against Harris,, upon a note for $200, upon which he was the last endorser. The note was executed by Peter R. Rison, and payable to William C. Anderson, and the names of Anderson and C. M. Ratcliffe were upon it as endorsers; but their names were forghries.

On the 10th January, 1S32, Steel and Streeter warranted Matthews before a justice, on a note of hand, without seal, for thirty-six dollars, payable 25th December, 1824. Judgment was rendered below for the plaintiffs, and the defendant appealed to the circuit court. The defence relied upon was the statute of limitations.

This was an action of ejectment, brought by the lessors of the defendant in error, against the plaintiff in error, to recover a moiety of lot No.-, in the town of Nashville.

This was an notion upon the case, brought by the defendant in error, Wilson, against Turney. The latter undertook to transport for the former, seventeen bales of cotton, to New Orleans., which were delivered on board his flat boat, on Duck river.

This is an action of debt brought in the Davidson county court by the plaintiffs against Hoge and Kelly as drawers, and Rawlings as endorser of a promisory note not under seal.

This is an action of debt brought by the Nashville Bank against Daniel Graham, administrator of John M’lvor, deceased, John C. M’Lemore and George W. Campbell.

This is a writ of error, to reverse a judgment of the circuit court of Davidson county, rendered against Brice M. Garner, as clerk of the court of common pleas and quarter sessions of Lincoln county, and the other plaintiffs in error, as his securities, for failing to render an account, and pay over monies by him collected for the use of the State, as by law he was bound to do.

Weatherly brought an action on the case, in the circuit court of Rutherford county, and recovered a judgment against Wright of five hundred and fifty dollars. Held: contrary to the charge of the court below.

This is an action of trespass for taking personal property. The declartition is in the usual form; the defendants below pleaded jointly not guilty; and Smith pleaded separately, justification as a constable, by virtue of an execution founded on a judgment in favor of his co-defendant, Crawford, against one Gordon. Upon these pleas issue was taken. A verdict and, judgment were rendered for the plaintiff below, and a motion for a new trial which was overruled.

Martin brought this ejectment against Whitesides in ■ April 1832. His title is as follows. Held: is the expression. There was a meaning in this, which is explained by the last clause in the first section, when the words are: “and which land is adversely held under colour of title.” It is therefore contended, that the meaning in the first 'clause of the proviso above quoted is, that the act does not extend to sales and mortgages…

This was an action of assumpsit, brought by the Bank of the State of Tennessee against John B. Craighead, on the 27th of June, 1831. The declaration contains two counts; one for money lent and advanced, and the other for money laid out and expended. The defendant pleaded non assumpsit, non assumpsit within three years, and that the causes of action in the declaration mentioned, nor either of them, accrued within three years. To these pleas there was a replication and issue.

An execution in favor of tbe defendant in error was issued from the circuit court of Williamson county against Jonathan Hill, and a delivery bond executed by Jonathan Hill, purporting to be executed by the plaintiff in error, was forfeited; and the execution was levied on the property of the plaintiff in error, who obtained a super-sedeas, and pleaded non est factum to the delivery bond.

This was an action of ejectment, brought by the lessors of the plaintiff below, to recover two-sixth parts of a tract of land originally granted to John Nichol, Sen. and by him conveyed, by deed of gift, to his son-in-law, Henry Ingraham.

This was an action of ejectment, prosecuted to recover a tract of land purchased by the lessor of the plaintiff below, at sheriff’s sale; the land being sold as the property of Beverly' Harris, who was not in possession of the land when it was sold.

This was an action of detinue brought by the plaintiff against the defendants, in the circuit court of Wayne county; the plea non detinet. The plaintiff claimed under a deed of trust executed to him by hisfather, Elijah H. Harbour, for the benefit of Sally Kerlogue, the daughter of said Elijah.

In this case, a ca. sa. issued at the instance of the defendant in error, against the plaintiff in error, A. G. Street, by a justice of the peace. The ca. sa. having been executed, he, together with the other plaintiff in error, P. Street, entered into bond that the said A. G. Street would appear at the next county court of Maury, and pay the debt or render a schedule of his property, or take the insolvent debtor’s oath.

This was an action of ejectment, and the only question presented in this record arises on the admission of a deed from John Herndon to Abner B. Henderson and M. Henderson as evidence; the probate of which is in these words: “State of Tennessee, Maury county, November term 1817.

On the 15th of August 1832, William Richardson ex-*, ecuted to the plaintiff aTleed of mortgage for a tract of land, several negroes, horses, cattle, and some furniture, to secure him against liability by reason of his surety-ship for said Richardson, for the payment to John R. Wilson, of four promisory notes, for the sum of six hundred dollars each, dated the 28th of August 1829, and due the 1st and the 28th of August 1831, the 2d and the 28th of August 1832, the 3d and the…

Brady died intestate, in August, 1833; in the same month the defendants procured letters of administration on his estate. The estate was largely indebted, and a large amount of assets came to the hands of the administrators, but not sufficient to pay all the debts. They had notice of the debts, and knew that the estate was insolvent before they proceeded to administer.

This was an action brought by Phill, a man of color, against the plain tiffs in error, in the circuit court of Sumner county, for trespass and fasle imprisonment, to try his right to freedom.

<p>A judgment against heirs to be levied of the lands descended generally, without designating any specific tract, is regular.</p> <p>A judgment was rendered against A, in the county court; he appealed to the circuit court, and B and C became his securities in the appeal bond; After the appeal was taken, A died, and no person administered upon his estate. The suit was revived against his heirs, and judgment rendered against them, to be levied of the lands descended: Held, that the securities in the appeal bond were also liable, and that a judgment rendered against them was not erroneous.</p>

This was a motion made against the plaintiff in error, as a sheriff, for the non return of an execution, in which the defendant in error was plaintiff.

Gilliam hired from Hord, his negro for one year; the negro fell sick and Dr. Neilson was called upon, and as a physician, gave his attention to the case. Hord, as an accommodation to Neilson, paid the amount of the bill; Gilliam refusing to pay Hord the money he had advanced, Neilson brought this suit by warrant, and judgment was rendered for defendant on a trial in the circuit court, where the cause had been taken by appeal.

The defendants in error recovered a judgment against the plaintiffs in error, before a justice of the peace. The justice having resigned, returned his official papers into the office of the county court clerk of Giles county. The clerk of the court issued a scire facias on this judgment against the plaintiffs in error to revive the same, and made the scire facias returnable to the county court, and not before himself.

This was an action of assumpsit brought against Smith and Farrar as the endorsers of a note under seal, drawn by John Gordon, payable to James Smith at the office of discount and deposit of the Bank of United States at Nashville. The declaration is in proper form. The defendants pleaded, First, non-assumpsit. Secondly, that they had not been regularly and legally notified of the demand and refusal of Gordon to pay the note sued on.

This was am action of ejectment, brought by William M. Greer and others, as lessors, against Smith and Jones. The declaration lays the demises in the name of Robert Irwin, jr. jointly with the others.

This being an action of ejectment, the lessor of the plaintiff in the court below, produced and read to the jury a grarit from the State of North Carolina, for five thousand acres of land, on both sides of the west fork of Stone’s river, which, by its calls, included the land in controversy.

This was an action of assumpsit brought by the defendant in error, Jenkins, against the plaintiff in error, Lawrence, to recover the value or proceeds of some cotton, sold by Washington Crouch to the plaintiff in error, Lawrence. The facts were these: Crouch rented from Jenkins, the defendant in error, thirty-five acres of land for the year 1831, and was to pay three dollars per acre. Upon this land he raised some corn, oats, and cotton.

This was an action of trespass brought against Bradshaw and Brown. The jury found Brown not guilty, and Bradshaw guilty. Brown had recovered a judgment against Wm. A. Maxwell, which was levied by Bradshaw on a stud horse, and the horse sold as the property of Maxwell. Thomas sued Brown and Bradshaw to recover the value of the horse.

This was an action of ejectment brought by Smith and wife against Hightower, to recover a small slip of land. The lessor of the plaintiff claimed under a grant to Lei-per’s heirs, dated in 1793, which called for the line of William Collinsworth’s grant. Mrs. Smith, the wife of Alexander Smith, the lessee of the plaintiff, was the only child of Leiper, to whose heirs the land had been granted. The only dispute was on the line of Collins-worth’s grant.

This was an action originally commenced before a justice of the peace, by warrant, for a demand under one hundred dollars: a judgment was rendered for the plaintiff. Upon this judgment the defendant obtained a cer-tiorari and supersedeas, and took the case to the circuit court. Among the papers returned by the justice was an account upon which he had rendered the judgment, for the plaintiff.

This was an action of detinu, brought by the plaintiffs in error, who were plaintiffs below, to recover of the defendant in error, a negro man. T-he plaintiffs produced as evidence of their title, a mortgage, executed to them by Burge, embracing the negro in dispute, and other property.

Short had been indicted in the county of Wiliiamson for the murder of Newsom, before the passage of our penal code. The cause had been before this court upon points not now debateable. 3 Yerger’s Reports. Upon a trial had at term of the circuit court, 1832, of said county, the jury returned the following special verdict, which the court received, and the jury was discharged.

The defendant below was indicted for an assault and battery, with an intent to commit murder in the first degree. On the trial it appeared that the offence charged in the indictment as a felony, was committed more than twelve months before the finding of the indictment. The indictment also laid the offence more than a year before the finding of the bill.

This is a suit in equity. The bill alleges that in the year 1792, on the 15th of February, Benjamin Moon, of Virginia, died, having first made his will, which was found in Virginia, on the 17th -of September, 1792, in which-he bequeathed “two negro women and their increase to his daughter A. Perkins, to her and the heirs of her body lawfully begotten.3' That the complainants are some of the lawfully begotton heirs of the body of said A. Perkins, and entitled to have a part…

This is an indictment for usuriously reserving and receiving from John Stewart, four dollars for the loan, forbearance, and giving day of payment of the sum of twenty dollars for sixty days. The defendant was convicted, and a new trial being refused him, appealed in the nature of a writ of error to this court.

On the 1.5th of November, 1831, Battle recovered a decree for money in the chancery court at Franldin, against Martin Clark, with the usual award of execution. On the 3d of January, 1832, the execution issued, tested at the November term.

Stephen R. Roberts, Thomas Roberts, and Alfred R. Wynne, were partners in trade; during the partnership they borrowed from Belote $400, and gave a promissory note in the name of the firm, for the money. The trading was doae in the name of Stephen R. Roberts & Co. About 1827, Belote becoming unwilling longer to indulge the debtors, directed Swancy, who did business for him, to collect the note.

The bill states, that in the year 1S22-3, complainant war. much indebted to defendant and E. Boddie, principally for monies advanced complainant to purchase tobacco; the inducement to advance the money was the following: Tennessee money, at tliat time, was much under par, perhaps from twenty to thirty per cent., and that they advanced him Tennessee money upon bis agreeing to pay the same in New Orleans, in United States paper, then at par with silver, dollar for dollar;…

On the 17th of September, 1832, Richard Christmas and Nicholas P. Smith entered into a contract, whereby Christmas agreed to sell Smith eleven hundred and tvventy acres of land, in Madison county, state of Mississippi, for the price of six thousand three hundred dollars, payable in three equal annual instalments, without interest.

James Pain, on the 8th of June, 1817, made his last will and testament as follows: “In the name of God, I, James Pain, do declare this to be my last will and testament; whereas I disposeth of my real and personal property.

This is a bill in equity; it states, that about the 16th July, 1822, Robert E. Searcy, a Lieutenant in the Navy, made his last will, and soon after died at Washington City.