Volume 16 — Tennessee Reports

This is an action of debt,' brought on a sealed note, in the name of Henry Lynn, for the use of David Dow-land, against Thomas Glidwell and James A. Simmens.

In 1809, Thomas Norvell, who resided in Goochland County, Virginia, made and published his last will and testament; and dying, said will was duly proved and recorded, according to the laws of… Held: the remainder over to be void, and that the whole vested in the plaintiffs, to whom the limitation was for life, with remainder to the heirs of their bodies; and accordingly the annuities were decreed to be sold, and the money to be paid to die plaintiffs.

This bill was filed by the complainant against the defendants, to recover a negro woman, who had been mortgaged by her deceased husband, to the'defendants, and which she claimed as having been given to her separate use by her father) who, when the negro was delivered, executed the following deed: “Know all men by these presents, that in consideration of the natural love and affection I bear to my daughter Elizabeth Rhodes, since given m marriage to, and now the wife of…

This was a bill filed by Irby against M’Kissack, to divest him of the title to one hundred and twenty-seven acres of land. The following are the facts. Elisha B. Mayfield was the owner of a certificate warrant, No. 1803-, for 500 acres.

This was a bill filed by Bumpas against Gregory, to divest the title to certain tracts of land, described in the bill, and to vest it in the complainant.

This was a bill filed by King against Vaughan, charging, among other things, that in the Rendition of a decree by the county court against him, the decree, by mistake, was entered up for $72 more than the court actually decreed against him; and the question was, whether a court of chancery, under such circumstances, would grant relief.

<p>A, upon the eve of her marriage with B, in conjunction with him, conveyed certain slaves, in trust for her support during her natural life. In the deed of trust is the following stipulation: “If the said A die without lawful heirs of her body, one half of the negroes and their increase are to return to her brothers and sisters, and the other part of the above named negroes shall be to my use and disposal, as I shall see necessary, notwithstanding said marriage, at any time or times after said marriage takes place, without any let, hinderance, or interruption from him, the said B, or the said C, (the trustee) or any thing herein contained to the contrary notwithstanding.” Held,</p> <p>1st. That the words, “shall be to my use and disposal,” applied to the feme, and gave her the power of a feme sole.</p> <p>2nd. That a gift or disposition by her, of one of the slaves, though held in common between her and the trustee, vested in her donee all the right and title which by the deed was reserved to her.</p> <p>3rd. That the case being a peculiar one, the court would not, if the facts leave it doubtful whether she gave or loaned the slaves, dismiss the bill and leave the parties to their remedies at law, but would direct an issue to ascertain whether it were a gift or a loan.</p>

The complainant and defendant were married in October, 1832, and in March, 1833, the complainant left the house of defendant, and from thenceforward they lived separate and apart.

In this case, the scire facias recites that a subpcena had been issued and delivered to the sheriff, commanding him to summon John J. Butler to appear before the grand jury and give evidence; that the subpcena was duly served, and that said witness being called, failed to attend, and that thereupon a judgment nisi was rendered against him, &c. To this scire facias the defendant demurred; and the circuit court having sustained the demurrer and given judgment for the defendant…

In thjs case, the suit was commenced before a justice of the peace. The warrant is in the name of Oliver I|£ay, for the use of Biles and Carter. The note was executed to Pray, and the judgment was properly rendered in his name. The fieri facias, however, issued in the names of Biles & Carter alone, “to satisfy (so it recites) a judgment that Biles & Carter obtained against defendant.

This suit was commenced before a justice of the peace, the 4th day of April, 1S34, upon the following note: “Six months after date, I promise to pay Austin Miller fifty dollars, for value received, Nov. 28 th, 1827, which maybe discharged in property before that time. John Hays. [Seal.]” Miller assigned the note to Ar&os Johnson, on the 1st day of May, 1828, who assigned it to Lea, the plaintiff below.

The facts upon which the judgment of the court, in this case was pronounced, are contained in the opinion of the court, delivered by Judge Green.

An action of ejectment was brought by plaintiff in error, against the defendants, in the circuit court of Haywood county, and at the last term the cause was tried and judgment and verdict for defendants. The plaintiffs in error claimed under a grant issued by the State of North Carolina, and mesne conveyances frota the grantor to himself.

On the 23d of September, 1831, an execution, issued from the county court of Henderson county, in favor of Hill and Henderson, and came to the hands of Marshall, the sheriff of said county. Having failed to return the execution, a judgment on motion was rendered against Marshall, and the other plaintiffs in error, his securities, for the amount of the execution, and the costs and damages due thereon.

This was a judgment in the county court of Henderson, obtained by Harman and others vs. Marshall, the sheriff, and the other defendants, as his securities, for failing… Held: if it had been properly pursued/ 4. A certiorari will not lie, after the time of two years has elapsed from die rendition of the judgment in the county court. 4 Hay. 101, 145. The questions which the counsel for defendants in error will present, are, 1. Will a writ of error coram nobis lie in this case.

The facts upon which the judgment of the court, in this case, was predicated, are stated in the opinion delivered by the chief justice.

A judgment was recovered by the defendants in error, against Joseph Massey, before a justice of the peace of Madison county; and the plaintiff in error, Childress, was summoned as a garnishee before the justice of the peace, in December, 1833, to say what he was indebted to the said Joseph Massey, &c. The plaintiff in error appeared on the day he was cited, but no proceedings were bad, nor was he examined as garnishee.

This action is founded upon the following contract: “This memorandum shows, that I am indebted to John W. Welch two hundred and twenty-five dollars, in lumber and plank, at the customary price, and at the mills formerly belonging to said Welch, which I promise to saw and deliver as fast as practicable, when there is water to saw with; for valuó received, this 22d January, 1833.” The plaintiff notified the defendant, on the 28th June, 1833, what description of lumber and…

This was an action of ejectment, commenced on the 23d November, 1826, brought to recover a tract of land lying in Haywood county. There were two counts in the declaration, one laying the demise from the heirs and devisees of Thomas Overton, deceased; the other from Penelope, the widow of said Overton, who, also, claimed title under the will of Thomas Overton, deceased.

From the bill, answers and proof, it appears that the' complainant purchased an improvement which one Moore had made, on vacant land, in the county of Weakley,-which improvement, he gave to his son-in-law, Atkinson,if he would settle and procure a title for it. Atkinson' commenced building a house, but before it was finished,determined to leave the place, and it was agreed that complainant should settle on the place, and get a title to the land and give Atkinson one half.

This bill was filed by the complainants, who are creditors of Wilson and Harman, for the purpose of setting aside a deed of trust, executed by them to secure certain debts due to Win. M. Beal. The defendants, Wilson and Harman, were in failing circumstances, and had many-debts outstanding against them, when they confessed judgment in favor of Beal for $6,511.

The bill charges that a decree was obtained by Lyle against complainant in the chancery court at Lynchburg, Virginia, in 1828, in a cause that had been there pending for years before, against complainant Hunt and George Mason.

In 1835, Donald M’Donald died in the State of North Carolina, having first made his will, wherein he bequeathed to his wife, the complainant, all his real and personal property during her life. His son, Norman M’Donald, and his son-in-law, Alexander Balter, were appointed executors, proved the will, and took upon them the trust of executing the same. Alexander Balter has possession of three negroes, Washington, Lucy and Europe.

Smith was indicted for forging the following paper wilting: “Rowan County, ) State of N. Carolina. ) “The bearer, Martin Rivers, was raised by William E. Williams, of said county and State. This is to certify, that Martin Rivers was free-born, and bound to mo until he was twenty-one years of age; his time was out in 1819, and has conducted himself honestly and soberly, and behaved himself soberly, and is a well meaning man.

This was a motion made by the defendants in error, against Hopson (who was a constable) and his securities,. Jeremiah Barnes and William M. Beasly., for money c0^ected ^7h™f°r ^ plaintiffs below, and not accounted for.

<p>A plaintiff must state in his declaration the damages arising from the breach of contract, specially, except in cases where the damages may be presumed necessarily to result from the breach.</p> <p>It is not the necessary consequence of the non-payment of a promissory note, that it was protested; therefore, when fees for protesting a note are sought to be recovered, the protest must be averred in the declaration.</p>

On the 10th day of September, 1830, Lewis H. Brown Thomas Brown, and Charles M’Donald made their writing obligatory to T. and G. W. Martin, for the sum of one thousand six hundred and thirty-seven dollars, and twenty cents, due the first day of February, 1831. Thomas Brown and Charles M’Donald were both securities in said bond.

In this case, a certiorari was ordered by two justiees of the peace to be issued from the circuit court, which was accordingly done. It appearing from the petition, that the application was made more than twenty days after the rendition of the judgment, the circuit court dismissed the certiorari, on the ground, that the justices had no power, after twenty days, to grant it; from which judgment, an appeal in error is prosecuted.

This action originated before a justice of the peace, and was taken thence by appeal to the county court of Lawrence. At the January term, 1835, of that court, the case was tried, and judgment was rendered in favor of the defendants. The plaintiffs prayed an appeal, which was granted. The transcript of the record was not filed in the circuit court until the first day of the term of that court.

The defendant was convicted of petit larceny, from which he prosecuted an appeal in error to this court. Held: is all regular. The venire facias was returned by the sheriff, executed on the lawful number of competent jurors, out of whom a grand jury of inquest were elected, empan-neled, sworn and charged, with J. S. their foreman, and retired under the care of B. W. an officer.

<p>Where a jailor suffered a prisoner convicted of felony to escape, before the term of his imprisonment had expired: Held, that he was not entitled to his fee, or compensation for the time he was confined.</p>

Gass, in 1832, purchased bacon of Scruggs to the value of one hundred and twenty-six dollars. On the 10th of August, of the same year, Gass paid Scruggs the full amount of the bacon in the notes of the Macon Bank of Georgia, which bank notes were received in payment as current cash. On the first day of July preceding the payment, the bank of Macon had failed; but' neither party had any knowledge of the fact at the time' the payment was made.

At the November sessions, 1819, a judgment for one hundred and thirty-six dollars and fifty cents, was rendered against the defendant Lipe, upon which execution issued, and was levied on seventy acres of land, on which Lipe then lived, at the request of Lipe. tin pursuance of said levy, the land was sold on the 18th of November, 1820, to Richard Mitchell. A deed was executed by the sheriff to Mitchell for said tract of land, on the 24th of May, 1823.

On the 11th March, 1829, Elisha Butler made his will: on the 31st of March following he died.

This was an action of assumpsit for. work and labor done as a clerk, &c. The following facts are agreed upon in this case.

The complainant filed his bill, alleging that Samuel Nicholson had made an agreement with one John Ireland, which agreement was as follows: “This agreement made the 16th of March, 1811, between Samuel Nicholson and John Ireland, witnesseth, that the former sells to the latter one thousand acres of land in King’s big survey, on Clinch river; out of which big survey, N. is first to sell what he can in the course of next month, still leaving two thousand acres unsold; out of…

In this case, such facts as are necessary to he stated, are set forth in the opinion of the court, and need not be again repeated.

Coatney, the defendant, was charged before two justices of the peace of Greene county, by Malinda Fielding, with having begotten a bastard child of which she had been delivered. Upon this affidavit a warrant was issued, and Coatney was apprehended and bound to appear at the next county court to answer the charge.

. Wilson procured a justice of the peace to issue a warrant to summon Rogers and sis others to answer for shooting within two hundred yards of the Powell’s Valley road, it being a road of the second class. On -the return of the warrant, the justice gave judgment for. ten dollars against each of the defendants; from which, Rogers alone. appealed to the circuit court.

This cause commenced by warrant before a justice of the peace.' Judgment was rendered for' the defendant before the justice on the 23d of February,T833; and on the 25th of said month, the party prayed for and obtained an appeal to the county court; there was a rule entered in that court, calling upon the party appealing to give further security for the costs of suit, which vvas complied with. But no rule to dismiss was entered.

Kincaid presented a petition to two justices of the peace for a certiorari. It was stated in the petition, that a judgment had been rendered against him, in favor of Smith, about five years before, and had been satisfied by him; notwithstanding which, an execution had issued upon the judgment, and was about to be levied Upon his property.

.This was a scire facias upon a bond for the prosecution of suit in the circuit court of Grainger county, which bond is in these words: “Know all men by these presents, that we, Vincent G. Bull and Elisha Bull are jointly and severally held and ■firmly bound unto William Chanie, in the penal sum of two hunderd and fifty dollars.

Anderson, for the use of Coker, recovered a judgment for eight dollars thirty-seven and a half cents, against William Tipton, on the 5th day of October, 1833, before Z. Booth, a justice of the peace for Knox county. At the July term, 1834, of the county court for Knox county, Tipton presented a petition for a certiorari, alleging, that the judgment was unjust, and that he didr hot recollect that the warrant had been served upon him.

This was an action of ejectment, in which the plaintiff below recovered a verdict and judgment. The land in controversy lies between Walker and Henderson’s line, and was granted by the state of Virginia, in 4787.

<p>Where an attorney is employed to aid or assist in prosecuting an action, for which his client executed a note to him for his fee, and the attorney afterwards attended to the suit from time to time, until it was eventually compromised, without a trial upon the merits: Held, that the attorney was entitled to recover the whole amount of his fee.</p>

The facts of the case are stated in the opinion of the court, delivered by Judge Green. The cause was very fully argued by,

This is a bill in chancery: it alleges that in the year 1823, the complainant purchased from the defendant a tract of land, at the price of eleven hundred dollars, and for the payment thereof… Held: he could not obtain a credit therefor. • The bill prays that the notes for three hundred dollars and for forty-one dollars be delivered up to' be cancelled, and that the judgment aforesaid be perpetually enjoined. The

A tract of land of six hundred and forty acres belonging to the complainant was, by a decree of this court, ordered to be sold, and the proceeds to be applied to certain debts mentioned in the decree; one of which, of three thousand dollars, was due to the defendant M’Ghee. The land was sold as directed, and at the sale, the defendant, M’Dermott, became the purchaser, for the sum of three thousand five hundred dollars.

This is an action of ejectment, brought in the name of the state, for the benefit of common schools, against.Toqua. Will, a Cherokee Indian, who claimed the land in controversy, as a reservation under the treaty of 1817 and 1819. Curing the pendency of the suit, the defendant died, and the suit was revived against the defendant’s children. Toqua Will’s name was registered with the Cherokee agent for a reservation, the 14th of June, 1819.

The defendant was indicted in the circuit court of M’Minn county, for the murder of John Walker.

<p>Several parties were bound in a recognizance, which was forfeited 7 a scire facias issued against them all, the forfeiture was set aside, and the defendants assumed the costs: Held, that the solicitor was only entitled to one tax fee, for all, and not to a tax fee for each defendant in the scire facias.</p>

This was an action of trover, brought to recover negro Ned, a slave. Held: that a bona fide, sale and delivery of possession, without registration, was valid to pass the title as against creditors and purchasers who had notice of the sale. The defendants in error presented a petition to rehear the cause, and the court being divided in opinion, the judgment was set aside and another argument ordered.

This was an action of trover, brought on the 3d of March, 1832, to recover the value of Sarah, a negro woman slave and her children. Held: possession of the parent is the possession of the child. Orraxton vs. Gaines, 4th: Hen. and Munford, p. 151.

On the 15th of July, 1834, a capias ad satisfaciendum, issued from the chancery court at Carthage, in favor of Jane Grisham against John Grisham, returnable to the January term, 3835, of said court, for the satisfaction of one hundred dollars. _ - , The sheriff returned the ca. sa., together with a bond, executed by the defendant, with security, to appear at court, pay the money, take the oath of insolvency, or make a surrender of his property as required fay law.

In this case, the lessor of the plaintiff claimed title under a grant to himself for one hundred and seventeen acres, dated the 20th of September, 1827. The entry upon which the grant issued, was * not read, but was recited in the grant to have been made on the 25th of April, 1826, pursuant to the provisions of an act of the general assembly, passed on the 22d November, 1825, and acts supplemental thereto.

On the 14th of October, 1833, James Wilkinson obtained a judgment against Stephen Elliott, before a justice of the peace, for eight dollars and costs; In December afterwards, Elliott applied to the circuit court, and brought the cause up by certiorari, alleging, “that when ¿he judgment was rendered he had appealed from it to the county court; that before the appeal was carried up, the parties agreed to arbitrate the matter, and entered into a written agreement to that…

This is an action of trover, to recover two negro slaves, and some other property, which had been tallen .as the property of John Staples, and sold by Mitchell as sheriff, and to which the plaintiff claimed title By virtue of a deed, which, though absolute in terms, appeal’s from other parts to be only a surety for a debt from said Staples to himself, dated the 27th of January, 1832.

Scott was sued by Randolph, in Franklin county court, in 1821, and Lanham became bis bail.

This suit was commenced before a justice of the peace; the warrant issued is in these words, to wit: “To any lawful officer to execute and return; you are hereby commanded to summon John Marshall to be and appear before me, or some other justice of the peace for said county, (Warren) to answer the complaint of Henry Penington, in a plea of debt of fifty dollars due from the said Marshall, for harboring, enticing and persuading a certain negro woman, slave for life, named…

This was an action of trover brought by the plaintiff in error, against the defendant in error, to recover the value of a negro slave named George, which the said plaintiffs in error had purchased, as they alleged, from one James Brown. The defendant in error having sold the slave as sheriff, justified under an execution issued in favor of Micah Taul, against said James Brown.

This was an action of debt, founded on a sealed note for one hundred dollars, executed by one Davis, and by Lane as his surety.

> This is a scire facias against the defendants, as securities for the prosecution of a suit of Tavlton M. Cains and wife against Adam Marly, in which cause judgment went for the defendant; a fieri facias was issued, and returned “nothing found,” then a scire facias against Grundy and Rucks, as security.

This is a suit by warrant, before a justice of the peace. The warrant is in the following words, to wit, “State of Tennessee, “White County. “To any lawful officer to execute and return; whereas complaint has been made by Richard Kirby to me, Charles Reeves, an acting justice of the peace for said county, that one John J. Lee, of said county, miller, did not grind a grist of corn for him, the said Richard Kirby, in its proper turn, but on the reverse thereof, ground for…

This was a suit commenced by warrant, before a justice of the peace.

Barnes was sued before a justice of the peace by ■warrant, on a note in the following words: “Twelve months after date I promise to pay A. J. Marchbanks sixty dollars, which may be discharged in cash notes, on solvent men, living in Warren county, and due at that time; 22d Dec. 1832. ELIJAH BARNES, Seal Two small credits of fifty cents each, are indorsed upon the notes, and the note assigned to Morford, 13th January, 1834.

The declaration in this case, sets forth a joint demise from John, James and William Pharis, for four hundred acres of land, described by butts and bounds. William Pharis, the ancestor of the lessors of the plaintiff, devised this tract of land as follows: To John Pharis, one hundred acres, where John Embry now lives; and 'the rest of said land to James Pharis and William Pharis, to be divided between them, according to quantity and quality.

This was an action of ejectment, for eight acres of land in Franklin county.

This is an action of ejectment brought by Jones, an Indian reservee, to recover the possession of the land claimed by him as a reservation. On the trial it was proved that Jones, the lessor of the plaintiff, was seen going in the direction of his reservation, and being asked where he was going, said he was going to take possession. He also’ said, when he was raising his cabin, that he would fight in defence of his claim.

On the 6th day of November, 1833, Joel T. Coffee, the plaintiff in error, recovered a judgment against V. Matlock and Thomas K. M’Donald, in the Overton county court, for seven hundred dollars. Matlock was the sheriff. On the 23d December, 1833, Coffee had an execution issued and delivered to the coroner, but too 'late to be executed, and was so returned.

This was an action of debt. The declaration is in the common form.

Th@ declaration in this cause, in substance, alleges, f£that on the 21st of January, 1832, Sliadrach Price complained by bill to N. W. Williams, judge of the third circuit, and obtained a fiat for a writ of ne exeat to issue to the sheriff of Smith county, or the sheriff of Sumner county, in whichsoever the property of said Pass should be found; that the order of the judge was directed to the clerk of the White circuit court, being the defendant Dibrell, directing him to let…

The plaintiffs brought their action of debt in the county-court of White county against the defendant, which, by consent, was transferred into the circuit court of said county.

This was an action of detinue brought bj Wm. T. and Elisha Floyd, against John Goodwin, in the circuit court of Franklin county, to recover two slaves, Fanny and Priscilla. The defendant pleaded non cleiinet. A verdict and judgment were rendered for defendant in the court below; a new trial moved for and refused; from which the plaintiffs appealed in error to this court. Both parties claim title to the slaves in controversy from John M’Gowan.

This is a bill to enjoin a judgment on a note for one hundred and ninety-three dollars, transferred after due, by JohnH. Martin to defendants Boyers and, Wins, and to cause defendant Martin to refund one hundred and fifty dollars, paid to him by N. W. Williams in his lifetime.

Margaret Officer, mother of complainants, having title to one hundred and seventy acres of land, in Overton county, in December, 1814, sold the same to Murphy, and gave him possession thereof immediately which he has enjoyed ever since; out of which lie* has received issues and profits to the amount of one hundred dollars annually. Murphy, when he purchased, gave his bond for the consideration mpney, and being sued thereon judgment was had against him.

The plaintiffs in error were indicted for a riot, and found guilty. Two of the men who had been or the grand ■jury and found the bill of indictment, were empannelled on the traverse jury, and on the trial of the issue of not guilty, the plaintiffs in error were convicted.

The plaintiff in error, Wilson, was indicted at the January sessions, 1833, of the county court of Fentress county, for an assault and battery, and was convicted. The indictment was signed by William B. Richardson, as attorney general pro tempore.

The plaintiff in error was indicted in Jhe circuit court of Marion county, for the murder of William Patton.

This was an indictment for murder, on which the plaintiff in error was twice convicted. Held: the -said Samuel Wilson, in and upon the right side of the neck of him, the said Samuel Wilson, between the head and shoulder of him the said Samuel Wilson, then and there unlawfully and of his malice aforethought, did strike, thrust and penetrate, giving to the said Samuel Wilson, then and there, with the axe aforesaid, in and upon…