Volume 18 — Tennessee Reports

This bill was filed by the complainant Shields, pra\ mg that fifty acres of land lying in White county, (the equitable interest in which, the bill alleged, was in defendant Turner,) might be sold to satisfy a judgment obtained by comp; ‘-sat against said Turner. The facts agreed on by the parties were as follows- Defendant, Turner, purchased the fifty acres of land before !f tioned, from a man by the name of Warren, who executed ¡* deed for the same to Turner.

<p>At the January term, 1829, of the Supreme Court for the State of Tennessee, sitting at Nashville, Isabella Kaigler and Wm. W. Kaigler, infants under the age of twenty-one years, who sued by their father, David Kaigler, as prochien amie, recovered judgment against Thomas Miles, (the complainant,) for the sum of $687 18, the payment of which was enjoined by this bill in chancery, filed May 6th, 1829.</p> <p>On the 24th of March, 1829, David Kaigler executed a power of attorney to John B. Miles, hy which he authorized him to receive and receipt for the amount of said judgment from the said Thomas Miles, or from any sheriff who might have collected the same, and to agree, compromise, or compound said claim as he might think proper. In this power of attorney David Kaigler calls himself father and guardian of the said infants, Isabella and Wm. W. Kaigler; the proof shows that he was their father, but not their guardian, except so far as being their father constituted him such. About the last of May, or first of June, 1829, David Kaigler wrote a letter to Robert M. Burton, the lawyer who had prosecuted the suit in favor of the minors to a judgment, directing him, if he had not paid the money to John B. Miles, the attorney in fact, not to do so, and not to acknowledge his agency in the transaction. Sometime in July or August, 1829, Burton saw complainant and showed him the letter, and directed him, if he had not paid the money to John B. Miles, not to do so, as the power of attorney was thereby revoked. On the 15th of September, complainant, compounded or as he alleges, paid the debtfor which the judgment had been rendered at law, and which had been enjoined by this bill, to John B. Miles, the attorney in fact, notwithstanding the information communicated to him by Mr. Burton. David Kaigler refused to ratify what had been thus done, but died before a final hearing of the case, and by a supplemental bill his administrator was made a party thereto, who by his answer shows funds distributed to Isabella Kaigler and Wm. W. Kaigler, children of David Kaigler, more than sufficient to cover the amount of the judgment compromised as above stated.</p> <p>Upon the above statement of facts, the court below rendered a decree in favor of complainants, from which the defendants appealed to this court.</p> <p>The questions are: 1. Can a prochien amie compromise a judgment recov-at law for an infant? 2. Can he authorize another to do it in his name? 3. Is notice by a creditor to bis debtor, not to pay to an"attorney in fact of the creditor’s, a revocation of the attorney’s power?</p> <p>1. A guardian, ad litem, may acknowledge satisfaction of a judgment on record, T. T. 23 Car. 2, B. R., cited 1 Chitty’s Bl. 362, 472; Moore’s Rep. 852, cited 3 Bac. Ab. 617,</p> <p>A prochien amie and guardian are often all one. 2 Inst. 259; Commentary on St. West 1, c 48, § 7, 8; lb. 390; Commentary on West 2, c 15. The court will take care that a prochien amie be a person of substance. 1 Atkins, 570; and will make him give security for costs. 1 T. R. 491.</p> <p>The reason why a prochien amie and guardian are said by Lord Coke, to be often all one, is manifestly the following: 311 *n^"ant succ!) the power' of appointing a guardian, ^em-> belongs to the court, as a mere incident of its jurisdiction of the cause. I Thomas’ Co. Litt. 285, (top page) . , . . . , , note. As the power is an incident, there must bo a lis mota, as an occasion of its exorcise. Hence it is only for defendants that the court can appoint such a guardian. But the court Inve no incidental power to appoint a guardian for an infant ad litem movendmn. This is the duty of a general guardian. But if he, himself, is to be sued, or if, when an infant has a just cause of action against a stranger, he neglects to right him, here is a manifest delect of justice. To remedy this, the two statutes of Westminster, above mentioned were-passed, which, in effect authorises the court to appoint a guardian ad litem movendum. He is therefore many times in our books, says Coke, taken for guardian, and guardian for him, because he is in fact a guardian, though called by another name, therefore, what a guardiam ad litem can do, the guardian ad litem movendum, or pro-chien amie may do. If a guardian ad litem may acknowledge satisfaction on record of a judgment recovered in behalf of the infant, so may a prochien amie. Now the power of acknowledging satisfaction is no other than the power of giving an acquittance or receipt of the highest solemnity, and includes the power of releasing, compounding, or compromising the judgment; i. e. of receiving, the money adjudged, ot-an equivalent.</p> <p>2. It has been decided, that though an infant cannot submit his suit to arbitration, his guardian of other person may submit for him, and the person submitting shall be bound by the award. Watson on Arbitration, 21, 42. If ho may do this, he may appoint an arbitrator of course. Now John B. Miles was empowered “to agree, compound, and compromise” this claim of the infants, and so had the power of, arid was in effect an arbitrator. The principle that a guardian may submit for an infant, and hind himself that he shall perform the award, was established, in contradiction to former determinations, by Roberts vs. Mewbolcl, Comb. 818, cited Tomlin’s Law X)ie. Award IT.</p> <p>3. The (bird question is settled in die negative, it. 5 Term. Rep. 234, 2! 5.</p> <p>4. But if there is any doubt that the infants are directly bound bj the acts of John B. Miles, acting as the attorney in fact, or chosen arbitrator of their -prochien ainie, they are at least bound by his acts, as the agent of their ancestor, to whose estate they have succeeded as heirs and distribu-tees.</p> <p>Whatever the plaintiff paid fo John B. Miles, as agent of David Kaigler, he would have a right to recover from David Kaigler, on failure of the consideration for which it was paid. Now if the infants are entitled to their execution, notwithstanding the satisfaction of the judgment through the agency of John B. Miles, then the consideiation on which the plaintiff paid him is gone, and he has a right to be restored to his money. But that money is in the hands of the infants, as representatives of their father. Therefore, if they insist on a second payment, they ought to be compelled to suffer the plaintiff to be substituted in their room to their father’s estate, pro tanto. But this would be attaining justice by a circuity to which the court will not resort.</p> <p>Again, if the money never came into the hands of David Kaigler, but yet remains in possession of John B. Miles, then the defendants must look to him, because their ancestor must have looked to him, and they now represent their ancestor’s obligations and rights.</p> <p>I. If the judgment mentioned in the pleadings had been paid by the defendant in the manner, and under the circumstances stated in the bill, it was a payment made to a person not authorised by law to receive it, and cannot operate as a satisfaction of the judgment.</p> <p>Admitting that David Kaigler authorised John B. Miles to receive the money from the defendant, what right had David Kaigler to give such authority? He was not appointed the guardian of his children; and his authority, if lie had any, must therefore result from the fact, that he was the ^ther of the complainants, and was their prochien amie in 111 ^10 judgment was recovered. Neither of relations authorised him to satisfy the judgment.</p> <p>When a judgment is recovered by a minor, it constitutes a part of his personal estate. The money due upon the judgment, when collected, must be paid into court, or paid to the legally constituted guardian of the minor. And by the act of 1762, c 5, § 5, 7, 9, 10, no person can legally receive or take into possession the personal estate of an infant, but a testamentary guardian, or a general guardian appointed by the court.</p> <p>Payment to the father of an infant as guardian by nature, or for nurture, is unauthorised by law. The natural guardian, or guardian for nurture has only the care and custody of the person of an infant, not of his property. Co. Lilt. Hargrave’s, note 66 & 67; 2Wendal’s Rep. 153; 1 Roper on Legacies, 580, 590; 1 John. Ch. Rep, 3; 6 John. Ch. Rep. 553, 591.</p> <p>So payment to a guardian, ad litem, would not be a satisfaction of the judgment. 3 Institute, 261, 390; 3 Bacon Ab. 413, 410, (note;) 2 Croke’s Rep. 640; 3 Blk. Com. 427.</p> <p>The power of a prochien amie is limited to the management of the cause: The Statutes of Edward authorising minors to sue by prochien amie, was not intended to confer on them the powers of a general guardian. His authority ceases when the judgment is rendered. The extent of his power may be seen from the form of his admission to prosecute. 2 Archbold’s Practice, 143; Tidd’s Appendix, 3 Bacon -Ab. 413, 617, 621.</p> <p>If the rule were not as we, contend, great injury would frequently be-tbe consequence to the estates of minors. By our law and practice any person may sue as the next friend of an infant. The prochien amie may frequently be wholly irresponsible. No security is ever required of him, except for costs, and thus, in many cases, if the judgment is satisfied by payment of the money to him, it would be wholly lost to the infant.</p> <p>The Court of Appeals of Kentucky has decided he has no authority to receive the money due upon a judgment recovered by an infant. 2 Pir. Digest, 301.</p> <p>2. If David Kaigler bad the right to receive the money, we contend it never was paid to him. The facts and in the cause show that the whole transaction was in fact a fraud upon the rights of these infant complainants. The pretended payment was made to John B. Miles, who at one lime was authorised by power of attorney from David Kaig-ler to receive it, but this authority was revoked, and the payment made by the defendant, with full knowledge of this fact.</p> <p>But it is said the power was under seal, and could only be revoked by an instrument under seal, and that the letter in this case did not operate as a revocation. We deny that this is the law. No interest passed or vested by the power. It is a-bare power to receive money, a bare authority, which may (in whatever form given) be countermanded. 1 Common Law Rep. 277; 2 Livermore on Agency, 308, 309; 1 Yer-ger’s Rep. 169; 2 Stark. Ev. 112, 113, 115. And if it were not revocable at law, except by deed, still in equity it would be a fraud to pay to the attorney after a verbal no-lice not to do so. Sugden on Powers, 352; 1 Story on Equity, 383.</p> <p>3. No decree can be rendered against Kaigler’s estate, unless he received it, or authorised it to be done. .Tt was paid to John B. Miles, who never paid one dollar to Kaig-ler in his life time, or to his personal representatives since his death. But even if Kaigler had received it,, the remedy at law is plain and unembarrassed, and the rule is, if, in a case in equity a question purely legal arises, which the court might or might not determine, the court will dismiss the bill. Story’s Equity, 89, 91; 5 Yerger’s Rep. 142; 4 Do. 91.</p>

This is a bill filed by an executor against his co-executor, seeking the construction of the will of their testator, and to have the trusts of the will declared.

<p>This was an appeal from the chancery court at Franklin. The facts are stated in the opinion of the court.</p>

On the 9th day of April 1830, the complainant, Samuel Burdoine, filed an original bill in the chancery court at Carthage, against Archibald Frith now deceased, which charges that there had been a partnership transaction between the parties entered'into in 1825, for the purpose of building a boat and shipping tobacco to New Orleans; that a conditional settlement thereof had been made, but that errors had intervened therein, which the defendant at the time of the settlement…

<p>Tbe facts of this case are stated in the following opinions.</p>

<p>There are only three grounds for which a decree can he reversed upon a hill of review. 1st. For error apparent on the face of the decree, 2nd. For new matter which hath arisen inline after the decree. And 3rd. Where pi oof hath come to li¿hteince the deuce, and couid not possibly have been used at the time when che decree was ren-deted.</p> <p>TO authorise a bill of review for new matter which hath “arisen in time after the <icr-cree,” it n.ust bcmit'e; which was in existence at the time the deeree was rendered, but was not hnown to the paity until afterwards.</p> <p>The rendition of a decree in another court, is not “mew matter” within the meanfhg of the rule.</p> <p>A died leaving three heirs and possessed c f three tracts of land, one for 4000 acres, one for 500 acres, and one for 500-acres. B, one of the heirs, before a partition, sold the 500 acre tract to C, and executed his individual bond. C filed a bill for a paiütíon. The court made an equal division of the whole and assigned to C the 500 acres sold to him, deducting it out of the share of B. Whilst t},is suit was pending and before the decree was pronounced, a bill was filed by I) in another court for a specific performance of a contract made by the ancestor A, in which a decree was rendered about a weete after the first decree, for 2280 acres in favor of D, which was allotted to him out of the 4000 acre tract. T1 .‘s produced an inequality in the first division, made under the first decree, to correct which a bill of review was filed: Held, that it would not lie.</p>

John Jones cliod in 1022, siczed of a large real estate, also possessed of a personal estate uot sidlicient to pay his debts. The complainants are his heirs. Ills wife and oldest son, Alexander S. Jones, administered on his «'state. The mother of compininants and their uncle, David L. Jones, were appointed their guardians, they being minors.

This was a suit commenced in the chancery court at Columbia.

The bill in this case was filed to set aside an agreement made between the complainant, Elizabeth Smart, before her intermarriage with the complainant, and the defendants Richard and Blackstone Waterhouse, executors ofRichard G. Wa-terhouse, deceased. The bill in substance charged that complainant was the widow of Richard G. Waterhouse who died in 1827, having made and published his last will and testament.

<p>If a matter stated in an answer, be a direct and proper reply to an interrogatory contained in the complainant’s bill, it is evidence for the defendant though it be in his favor.</p> <p>If, however, an answer be not a direct reply to an interrogatory in the bill, but in avoidance of some allegation which the defendant was compelled to admit, the answer is not evidence of the matter in avoidance.</p> <p>Where, in equity a fund belonged to Á, but thfe legal interest therein was in B, A filed a hill to prevent B from getting the fund into possession; Held, that if A was indebted to B, in a less amount, equity would compel him to discharge the debt, before the fund will be decreed to him, especially if A is insolvent.</p>

The facts in this case presented several questions, which were argued at the bar, but as the court, in its opinion, has noticed but one, it is unnecessary to state any facts but those upon which the opinion was founded.

<p>rite issuance by the commissioners of a certificate land wairant to a person not en» titled thereto, is-not conclusive upon the rights of the real owner.</p> <p>Theaetof 1807, c 2. empowered the commissioners to decide upon the validity Of claims presented for adjudication, but their decision and the issuance of the certificate* do not affect the rights of persons having conflicting claims.</p> <p>A court of chancery lias jurisdiction to examine into the execution of the power conferred by tiic act of 1307, c 2, upon the commissioners to adjudicate land chums.</p> <p>Where the bill alleged that the defendant received certificate land warrants for land granted to the ancestor of complainants, which lands “were lost by the interference of an older and abetter title in one Ezekial Norris or some other such like cause:” Held^ that this was a sufficient allegation of the complainant’s right to the certificate under tlie provisions of the act of 1807, c 2.</p> <p>When the statement of the bill is defective in not showing the complainant’s right, but it calls upon the defendant to set forth his title &c. and the answer states with precision all the facts, <$-c. from which it appears the complainant is entitled to relief, the court will decree for complainant, upon the case made in the answer.</p> <p>The defendant sold and appropriated certificate land warrants belonging to A. Allied a bill to recover the proceeds: Held, that the defendant could not avail himself of the act of limitations, without pleading or relying upon it in^his answer.</p> <p>The cleric and master in taking an account is bound to conform to the directions of the decree. Evidence taken before him which changes the complexion of the case as it appeared before the chancellor, and which had it been before the chancellor would probably have caused a different decree, cannot he heard, nor can it be noticed upon an appeal.</p>

The facts upon which the court predicated its judgment in this case, are staled in the opinion delivered by Judge Green. 1. Wyley Belcher was guilty of no fraud in procuring the deeds from his father. It is true his father was somewhat intoxicated when the deeds were executed, but not so much so, as not to perfectly comprehend what he was doing.

<p>Before a creditor (an, by virtue of ti e acts of 1820, c 11, and 1823, c —, redeem pro ye -iy s-oiu at execution calcs or under a deed of trust, I:o must obtain a judgment ajuiust ibe debtor whose property l.us been so.’J.</p> <p>lYhero a crecii‘or wli so debt was secured by a deed of trust, verbally piomised to A that if he would purcl.asj the tvoperty at V. e trust safe, and bid a certain amount for it, 1 e, 1! o creditor, would not je^eem it for any balance due to him by ti e debtor, o \ tí e faith of which \ remiso A did bid the amount and-make the purchase, and made valuable i.nprovome 'te on i’-e land: Held, that such creditor would not bo permitted afterwards t» rodeen the laud.</p>

<p>A tender made ia hank tioies, if not objected fo on tliat account, is good</p> <p>Where a debtor, whose property has been sold at execution sale, attempts to redeem it from the purchaser, the latter, if his judgment lias not leen satisf.ed, has other bona fide debt'* due from the debtor, may credit the debtor with the sum proposed to be advanced, and may bid in the same manner, and to the same extent, as if the attempt to redeem was by a creditor under the 3rd, and 4th sections of the act of 18£0, c 11,</p> <p>Where property is proposed to be redeemed and the original amount is tendered, 3i is the duty of the purchaser 10 receive tko amount and convey the property, or if he-is willing to give more, he should propose an advance and credit his judgment with the-amount thus hid or advanced.</p> <p>Where the legal amount due to the purchaser is tendered to him by the debtor, he has no right to insist on the debtor’s raying whatever amount maywstill be due him from the debtor before he will permit him to redeem, without o.Tering to credit or discharge the-debtor of the debt.</p> <p>Whore the purchaser, upon a legal tender being made to him, neglects or refuses to bid or advance any part of the debt still due him, ho cannot do it after the expiration of the two years limited to redeem.</p> <p>Where a legal tender has been made by a debtor to a creditor to redeem a slave, the-former is accountable for hire fiom the time of the tender; but he may set oiT in equity against the hire, a judgment debt due to him from the debtor.</p>

<p>Where a deed of trust, by which slaves were conveyed, described them thus: “nine slaves in the possession of A, and six in the possession of B,” it was held that the slaves-w-cre described with sufficient certainty.</p> <p>The law of the place where a contract is made governs its construction, and where certain formalities are indispensable to its validity at the place where it is executed, the want of these renders it invalid every where, provided they affect the merits of the-contract.</p> <p>By the law of Virginia, a deed or bill of sale, if not proved and registered is void as-to creditors and purchasers, but it is good between the parties, and in a suit in another State, the registration in Viiginia need not be proven, unless the controversy be with some one protected by the law requiring it to be registered.</p> <p>Where the maker of a deed of trust of slaves resided in Tennessee, (the slaves befng then in Virginia,) and the slaves were afterwards removed to Tennessee, they became subject to the Jaws of Tennessee, and if the deed is not recorded in Virginia, it is necessary as to creditors, to register it in Tennessee according to her laws.</p> <p>' A narrative or statement of the clerk of a court in another State, endorsed on the back of a deed, that it was proved in open court by the sul scribing witnesses, is not sufficient, (under the act of 1809, c 104, $ 1,) to authorise its registration in this State.</p> <p>Where a deed is proved in a court of record in another State, the only proof of the-fact, which will authorise it to be registered in this State, under the provisions of the act of 1809, c 104. is a copy of the probate from the records, properly certified by the-clerk and presiding judge, «^c.</p> <p>Where a deed has been properly proved, by the provisions of the act of 1809, it must be admitted to registration in a court of record of this State, otherwise the regis-ration is of no validity.</p> <p>A debtor may by deed of trust prefer one creditor to another, yet be cannot thereby contract for his own benefit, anil secure to himself tl e use and enjoyment of the pto-perty, if he uoes so the transaction is fraudulent and void as to other creditors.</p> <p>A stipulation in a deed of trust, icserving to the debtor the right cf receiving the rente and profits of the lands, the I ire of the s’aves, audio have the superintendence and management of the mei chandise, to the same'extent as if the deed were not made, is lo~ thlly inconsistent with the rights of other creditors and renders the deed fraudulent and. Void as to them.</p> <p>A deed void as to creditors, is nevertheless good between the parties'.</p> <p>A deed of trust was executed by A to secure certain debts, hut contained stipulations Which would render it void as to creditors, Tut tl ere wmc no creditors of A at the time. A afterwards sold to B all 1 is interest in tl e property conveyed l y the deed of trust but subject to the debts specified in it. The deed of trust wr-s duly proved and registered. A afterwards contracted debts, and judgments \\ ere obtained against him: Held, that the sale to B was not void as to such creditors, and that the property, was subject to the debts specified in the deed of trust</p> <p>A power of attorney transcribed in tlie record, but not embodied in a bill of e:\cep_ «ions, constitutes no part of the record.</p> <p>Where the record of a judgment stairs that A produced a power of attorney to confess judgment for 6 &c. this is sufficient without setting out the power of attorney.</p> <p>Where a maker of a deed of trust sells his interest in the property conveyed to A ? subji ct however to the debts specified in the trust, and a judgment is obtained against A and his interés sold at execution sale, the purchaser, (if indeed it is an interest which •can be sold by execution at law,) can only be substituted to the rights of A, and lie witf hold the property upon the same conditions oml subject to the same trusts that it was subject to in A’s hands.</p> <p>Where property is conveyed to trustees to secure debts due to certain creditors, without their knowledge, they may affirm the trust when it comes to their knowledge, and it cannot be revoked by the debtor after such affirmation.</p> <p>Where a trust is created to secure the payment of debts which is not attempted to he -enforced for ten years, this is not such laches as will discharge the trust as to creditors.</p>

Alexander M. Clayton, Esq. was commissioned by the Governor, as a special judge, to try this cause, one of the members of the regular court being constitutionally ineligible to sit in it. All the facts are stated in the opinion delivered by Judge Clayton.

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

In the early part of the year 1826, Avery and Ward entered into a covenant with the corporate authorities of the town of Nashville, whereby the said Avery and Ward undertook to complete a contract which one Samuel Stacker had previously made with the corporation, for the purpose of supplying said town with water, to be raised from Cumberland river by means of steam machinery, and distributed from a reservoir to be provided, through pipes along particular streets mentioned in…

<p>The facts upon which the judgment of the court is predicated are fully stated in the opinion.</p>

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

<p>For the freí.- ... 'this case., .ce the opinion of the court.</p>

<p>Where a decree is rendered and the court, afterwards, at the sameterm ordered, “that tire decree should stand open to bo revised at the next term upon a point reserved, but that i:i the mean time the decree be in all things executed notwiiLsi andina the order, and that unless the decree be revised at tl e next term this older to have no eJect whatever:” IleUl, that the case must be reheard upon the point received at the next term, and could not be heard aftewards, and that the neglect of the clerk in sending the pa-pers and records to another place to which the court had been changed by the legislature, will not alter the legal elTpct of the older.</p>

The bill in this case was filed to review and reverse the decree formerly rendered in this cause, (see 8 Yer. Rep. 67. A motion was made by the 'complainant’s counsel to take this bill from off the files of the,court, upon the ground that no bill would lie in this court to review its own decree.

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

One of the judges of the court was ineligible by the constitution to sit in this case and the subsequent one, of Caldwell vs. Knott. John Cocke, Esq. of Grainger county, was appointed by the Governor, Special Judge, to try both of said causes. The opinion of the court, as delivered by him in this case, states all the facts necessary to be noticed.

<p>The facts of the case necessary to be stated, will be found in the opinion of the court.</p>

<p>All the material facts of this case stated in the opinion of the court. ji</p>

On the 27th of February, 1834, a bill was filed by William C. Blake against Joseph Hinkle, William Moore, Elliott H. Hickman, Charles McKinney and William Edmonson, in which it is stated that Blake is the owner of Fayetteville Tennessee bank notes, to the amount of $650, that the business of said bank has been so negligently and fraudulently managed, that no suit at law can be brought against it, as the stockholders have failed and refused to elect directors as required by…

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

On the 1st of September, 1832, the defendant, Lemuel B. McConnico executed to defendant, Samuel Cox, a deed .of trust, by which he conveyed to him Lot No. 173, in the town of Franklin, five negroes, and other personal properly, for the purpose of securing and paying his debts, which he divided into three classes, the first class being one note due to D. P. Perkins, for five hundred dollars; in the second class were two notes, due to Cooper, Caruthers, & Co. for four hundred…

<p>For ti fe facts of the case see the opinion.</p>

This was a proceeding before justices of the peace, for & forcible entry and detainer. After judgment had been rendered, a certiorari to remove the judgment and proceedings into the circuit court was granted by two justices of the peace, returnable to that court. A motion was made to dismiss the certiorari, upon the ground that two justices had no authority to grant it, and that consequently the circuit court had ño jurisdiction of the case.

<p>Whore an instrument is jointly executed to several, one of the joint payees or obli-gees, or liis assignee, may sue in the name of all, without their consent.</p>

<p>The facts upon which tbe court predicated its judgment are stated in tbe opinion.</p>

In this case an indictment was found against the plaintiff in error for larceny. On the back of the indictment was endorsed, “Indictment, John P. Thomas,” under which was drawn a black line, and then was endorsed, the name of John P. Thomas, and others, witnesses sworn and sent to tlio grand jury.

<p>Where a part of jury in a capital case, the trial of which lasted several days, frequently separated themselves at night from their fellow jurors, for fifteen tir twenty infinites at a time, without being under the charge of an officer; it was held that this was such an irregularity as vitiated the verdict.</p> <p>Where there is an unauthorised separation of a jury for fifteen or twenty minates, it is not necessary for the prisioner to prove that they were during their absence tampered with; it is sufficient if they might have been</p>

<p>All the material facts of this case are stated in the opinion of the court.</p>

<p>After a suit lias been pending soveral teims. an affidavit made by the defendant upon which to ground a rule for the plaintilF lo show by what authority the suit was instituted, must state specially the cause or reason why the application was not sooner</p> <p>Where an affidavit states the instrument sued on and lost, as a “note,11 it cannot be intended by the jury that it bad a seal to if.</p>

<p>The creditor of a deceased debtor, resident at the time of his death, and at the time his administrators qualified, without the limits of the state, but who removed within two years after the grant of administration, into this state, and before suit brought, is hot barred by the act of 1789, c 23, until three years from the qualification of the administrator;</p> <p>6y the act of 1789, c 23, creditors of deceased persons residing without the limits of the state, are allowed three, and creditors within the state two years, from the qualification of the personal representatives, to commence their suits. In such cases the residence of the creditor at the time of administration granted, and not at the time of the suit brought, determines the question whether his debt shall be barred in two, or three years.</p>

<p>¿/pon an appeal from the judgment of a justice of the peace to the circuit court, the defendant may, in the latter court, prove his account by his own oath, as an offset, although he did not make, or offer to make, such a defence before the justice.</p>

<p>A petition for a certiorari and supersedeas stated that a judgment liad been rendered by a justice of the peace against the petitioner, which judgment lie bad paid, notwithstanding which, an execution liad issued on it, and prayed that the execution might be quashed. The process was granted, and the fact of payment tried in the circuit court and found ¿against the petitioner: Held, that ft procedendo, must, in such case, be awarded, and that the circuit court could not give judgment for the debt and twelve and one half per cent, interest against the petitioner and his security.</p>

Rogers obtained a judgment before a justice of the peace against Ferrell, upon which an execution issued. Ferrell applied to two justices of the peace for writs of certiorari and supersedeas, alleging therein that the judgment had been paid and praying the execution to be quashed, which upon hearing proof was done by the circuit court. Rogers prosecuted an appeal in the nature of a writ of error to this court.

<p>An affidavit for a continuance in a state cause, by tbe defendant, stated that A and B were material witnessses for him, they were summoned but did not attend, that he believes he will be able to prove b/ the witnesses a good character, and other facts of vital importance, #c. The affidavit did not show where the prisoner's domicil was, or that he had ever lived in the county where the witnesses reside, nor that his character could not be proved by others: Held, that it was insufficient to continue the cause.</p> <p>A prosecutor cannoMm asked whether he did not express suspicions of another per* son, than the defendant, having committed the offence charged against the defendant, unless such suspicion was founded on facts within his own knowledge.</p> <p>It is not competent for the defendant to prove by a witness, that he, the witness, had heard a slave confess that he committed the act, with which the defendant was charged*</p>

<p>Au indictment alleged, “that the defendant, on the first day of August, 1836, in the county of Greene, with force and arms, one chesnut sorrel mare, the property of John A. Park, did unlawfully and forcibly take from and out of the possession of the said John A. I’ark:” Hold, that this charge did not constitute an indictable ofifence.</p>

This bill is filed by complainant on behalf of himself and the other legatees of George Michael Deadericlc, deceased, against defendants.

William M: Richardson, the son of complainant, being in a low state of health, and about going to the south, did, on the 9th'of November, 1831, make a will, whereby he gave, after specific bequests, the residue of his property to Ins wife, the defendant.

The defendant in error, John Shelby, applied by petition to the county court of Davidson county, for liberty to- keep a public ferry near where the bridge crosses the Cumberland river at Nashville. The petitioner was the owner of the land on both banks of the river, and claimed the grant of the ferry as a matter of right conferred upon him by the act of 1807, c 25.

<p>A suit cannot be instituted against a foreign executor or administrator in the courts of this State in virtue of his foreign Jetters testamentary or of administration, but new letters of administration must be taken out according to the laws of this State.</p> <p>But where foreign administrators have closed their administration, and two of them are resident here, and the heirs and distributees as well as the administrators are before the court, if there is a surplus in their hands, they hold such surplus as trustees, and a court of chancery here may interpose between the administrators and distributees, and compel the former to pay such surplus to a creditor here.</p>

Baily Turner made his will in 1834, and shortly thereafter died. The clause in the will which is the foundation of this suit, is as follows.

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

<p>For the facts upon which the judgment of the court was predicated, see the opinion.</p>

<p>Where a contract for the delivery of cast iron pipes stipulated, that a particular test, to wit, a water pressure equal to a column of water three hundred feet in height, shall be applied to ascertain their quality, no additional or severer test than that stipulated for, can be applied.</p> <p>Where cast iron pipes were to undergo a certain test at the furnace, and were afterwards to be delivered in Nashville, but the party receiving them was at liberty to reject all the pipes at their arrival in the city, which were found defective, although they had been previously tested at the furnace: Held, that if they were received without objection at Nashville, they became the property of the party who thus received them.</p> <p>A court of equity does not require that a party to a contract shall go on, after it is violated by the other party, in a ruinous fulfilment of it, in order that he may prosecute an action at law. In such case equity will entertain jurisdiction to put an end to the contract, and will afford such relief as to right and justice may belong.</p>

<p>Where a negotiable instrument has been endorsed for value, a subsequent failure of the consideration on which the note was originally given, cannot affect the right of the endorsee.</p> <p>A executed a promissory note to B, the consideration of whicii, was the sale of an interest in lands granted by the Republic of Mexico;' the grant required certain conditions to be performed within a specific time, which B was to go to Mexico and have performed. U, before the expiration of the time when the conditions were to be performed, endorsed for value, the note to C, who knew at the time, that the note was given for the above consideration. B subsequently died before the performance of the conditions: Held, that the consideration for which the note was originally given had failed, but the failure of consideration being subsequent to the endorsement to C, could not affect his right of recovery against A: Held also, that the above contract was valid, being neither malum in señor malum prohibitum.</p>

The bill, cross bill, answers and proof in these causes, raised several questions, the principal of which were, 1. Whether M’Nairy could be substituted in equity to the rights and remedies of Oxley, who had obtained a judgment against Eastland as principal, and M’Nairy and others : s his sureties, which judgment M’Nairy paid before he filed this bill, and whether, in such case, Oxley should be a party. 2.

Michael Dean, of Warren county, having no legitimate children, but having a natural daughter, the complainant Hannah, for the purpose of malting a provision for her during her life, and her children after her death, on the 6th day of November, 1833, executed and duly acknowledged before the clerk of the county court of Warren, an instrument, whereby in consideration of natural love and affection for his said daughter, and for the purpose of making the provision before…

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

<p>The lien of the vendor for unpaid purchase money will be enforced against a purchaser, without notice from the vendee, who only holds a bond for title.</p> <p>13ut a purchaser by deed, from the vendee, for valuable consideration, and without notice of unpaid purchase money, will hold the land discharged from the vendor’s lien, although the deed is not registered.</p> <p>A purchaser for valuable consideration, without notice may rely upon that defence, either by plea, or by way of answer.</p> <p>When a purchaser for valuable consideration without notice relies on this defence in his answer, all the requisites and certainty required to be set forth in a plea, must be contained in the answer.</p> <p>A plea of purchase for valuable consideration without notice, must aver that the consideration money was bona fide and truly paid; a recital of that fact in the deed is not sufficient.</p> <p>An averment in a plea or answer “that a full and fair consideration was paid” is insufficient; the defendant must state what he has paid, or in what the consideration consisted, in order that the court may judge whether the consideration is valuable.</p>

The complainant, Delilah Guthrie, was, previous to the year 1816, married to a-man by the name of Beasly; Beasly died in the latter part of that year, seized and possessed of the tract of land, out of which she now claims dower.

This was a petition filed by Mrs. Richmond against her husband for a divorce from the bonds of matrimony, for adultery alleged to have been committed by him. The answer of the defendant denied the charge. An issue was made up, un-provisions of the act of 1799, c 19, to try the fact of ac¡ujteryj which at the September term, 1837, of the Davidson circuit court, was tried by a jury, and the issue found against the defendant.

In December, 1817, or January, 1818, Doctor Shelby sold Wm. Brady a horse, to be used by Brady on the Seminole campaign, for which horse Brady was to pay ninety dollars before his departure, or give Shelby whatever he should be valued at when mustered into service, or in case of Brady’s death, Shelby was to take a horse left by Brady at John Harding’s. Brady did not pay the money before bis departure, and on his return he gave Shelby at his request, a paper of the following…

<p>A mortgaged a slave to B, and subsequently mortgaged the same slave to C. At the time the mortgage was made to C, B’s mortgage was not registered, nor had C any notice thereof. B’s mortgage was afterwards registered before C’s: Held, that by the 6th section ofthe act of 1831, c 90, the mortgages took effect from their registration, and B’s had priority.</p> <p>WA prior mortgage, who registers his mortgagee añera subsequent mortgage is made by the mortgagor, but before the latter is registered, will, notwithstanding he had notice of the latter mortgage at the time he had his registered, be entitled to priority.</p>

<p>Undar the statute of distributions of Tennessee, although there is a will and e-ily a partial intestacy, still advancements made in the life time of the testator, must be brought in, upon a division of the undevised personalty.</p> <p>In cases of partial intestacy, the devises or bequests in the will of either real or personal estate, are not, under the act of 1766, advancements made in the life time of the testator, therefore, they are not to be brought in and accounted for, in the distribution of the unbequeathod residue of personal property.</p> <p>Testator by his codicil says, “Since I have assigned the above, (i. e.the will,) I find I had forgotten to make provision for my daugthers; after the death of my wife, I wish my negroes to be sold, except negro boy Jack,” <§-c. and three others named in the will. He then bequeaths $200 to one of his daughters, and no more, and directs all his debts, stock of horses and cattle, &c. to be equally divided among all the children, including the daughters: Held, that the proceeds of the slaves ordered to be sold do not vost in the daughters, but aro undisposed of.</p>

The bill in this case, alleged several distinct and independent grounds for equitable relief, all of which were controverted, but as the opinion of the court is wholly founded upon one of the grounds set forth in the bill, the facts in relation to that, as found in the bill, answers and proof, were as follows: On the 20th January, 1835, the defendants, Watson and Gibson, recovered a judgment by default against the complainant Thompson and George W. Richardson for $489 60 and…

<p>Decrees in chancery for money, do not bear twelve and a half per cent, interest per annum, from the time of their rendition in the court below until affirmance in the supreme court.</p>

<p>The facts of the case are to be found in the opinion of the court.</p>

<p>Although a bill of sale, absolute on its face, may be converted by parol evidence into a mortgage, yet the parol proof must be clear, decisive, and without doubt.</p> <p>Mere inadequacy of consideration, coupled with general remarks by the defendant at different times,that he intended to “let complainant redeem the property,” that “no other but complainant should redeem,” that “he might have the property by paying thirty per cent,” &c. is not sufficient evidence to convert an absolute bill of sale into a mortgage.</p> <p>Where the proof of a parol defeasance is contradictory and uncertain ¡ it will be held insufficient to change an absolute bill of sale into a mortgage.</p>

The bill charges that on the 24th of May, 1831, the complainant being indebted to sundry persons and in need of money, and for fear his property would be sacrificed at execution sale, and owning a negro girl, Caroline, that he knew would be the first seized upon and sold by the officers to satisfy the claims in their hands for collection, he applied to the defendant for a loan or to get him to satisfy his debts, and of-negro girl as security for his advances, and small…

Before the statute of limitations can operate as a bar to the recovery of property, there must not only have been an adverse holding for the time prescribed by the statute, but there must have been… Held: that up to the time of his death the statute of limitations did not run against him, because persons non compos are excepted out of the operation of the statute — and that after his death, it did not begin to run until administration was granted .on his estate.

On the 21st May, 1833, the defendant purchased at execution sale, in Davidson county, two small tracts of land 'as the property of Isaac Earthman. The amount bid for the land by him was one hundred and forty-four dollars. The sheriff afterwards executed to him a deed for said land. The defendant at the time of his purchase was the surety of said Earthman, in an appeal taken from a judgment rendered against said Earthman in the county court, in favor of D. Cantrell.

About 1810 or 1812, David Dickinson sold to Daniel Parker, the ancestor of complainants, a negro woman named Cresy. Parker died at New Orleans in the army in 1814|or 1815, leaving $130 of the price of the negro unpaid, for which sum Dickinson held his note or notes. The defendant, Patsy, his widow, administered on his estate at October session of the Rutherford county court, 1815. In 1818, she intermarried with the-defendant, Cato Freeman.

The bill is filed by complainants as legatees of Jesse Thomas, against Phineas Thomas and Finch Scruggs, the executors, and alleges that the testator died in Virginia in 1805; that the executors were directed to sell real estate in Virginia, and with the proceeds and £400, purchase real estate in Tennessee, which was given to the widow during her life, and at her death, to be divided between certain named children; that the executors sold the real estate in Virginia, and in…

The complainant filed this bill for an account of the personal estate of Thomas Wilson, deceased, and prays for a decree against the defendants for the amount in their bands. The complainant alleges, that she is the sister and only distri-butee of said Wilson. The defendants, in their answer, state that they do not know whether the complainant is the sister of said Wilson or not, and require proof.

This was- an action brought by Hill, as surviving partner of the firm of F. Porterfield & Co., as the holder of a note of Joseph Litton, for 0787 56, dated 4th April, 1832, and payable at the office of deposite of the Bank of United States, at Nashville, four months after date, against Bostick, the first endorser.

On the 9th July, 1834, Cantrell & Allen executed to Wm. Lytle their promissory note for $0,000, due lour months after date, payable at the office of discount and deposite of the bank of the United States in Nashville, for value received. This note was endorsed by Wm. Lyte and Fielding Deadrick, and negotiated to Joseph Kimbro, under circumstances hereafter stated.

This is an action of assumpsit against Bate, as endorser of a note of Rogan, Carr and Roberts.

This was an action of debt brought by Barnet Beasly, against Mary Griffith and Benjamín B. Griffith, executor and executrix of Samuel Griffith, deceased.

.This was an action commenced in the circuit court of Wilson county. After the cause had been some time pending, it was submitted to arbitrators. No rule of court was made for that purpose. The defendants below pleaded pais dar-rein continuance, that the plaintiff below, and Jewell for himself and McKee by their bond, submitted the matter in dispute, then pending in court, to five disinterested neighbors.

<p>Where by a rule of court, a cause is referred to arbitration, and no time is limited within which to make the award: Held, than an award made and returned the second term after the order was made is valid.</p> <p>If a time be fixed by a submission, either by contract or rule of court, within which to make the award, the arbitrators have no power to act after the time elapses.</p> <p>If no time be limited within which to make an award, the arbitrators may act at any lime until their authority is revoked..</p>

This is an action of ejectment brought by the heirs of Sarah Elizabeth Hoover, to recover possession of a house and lot in Nashville, in possession of Gregory, who married the mother of Sarah Elizabeth Hoover. The facts of the case were agreed upon by the parties, and are set forth and stated in the opinion of the court. The circuit court gave judgment for the defendants. 1.

<p>Actions of debt and indebitatus assumpsit are concurrent remedies in cases of simple contracts for the payment of money, either express or implied.</p> <p>Debt lies to recover compensation for work and labor done, although there is no express contract as to the amount of compensation to be paid.</p> <p>In all cases where the consideration has been executed, and where there is an express or implied promise to pay in money, the value thereof, inde* Hiatus assumpsit or debt, is the proper remedy.</p> <p>In all cases where the consideration is not executed, or if it be and the promise to be performed in consideration thereof, is not to pay money, but to do some other thing, neither indebitatus assumpsit nor debt will lie, but the remedy is by a special action on the case.</p> <p>Wager of law has never been allowed or recognised in the courts of this State, and wherever it is not allowed, debt will lie against an executor upona simple contract made by his testator. But if it were allowed, and debt were brought, the error can only be taken advantage of by demurrer.</p> <p>To revive a debt barred by the act of limitations, there must be an express promise to pay, or an admission of an existing debt still due, which-the debtor is willing to pay.</p> <p>What will be sufficient to revive a debt barred by the act of limitations, is a mixed question of law and fact — the jury must find the facts, and the Court must declare the law, arising upon said facts.</p> <p>It is the legitimate province of the court to examine the proof adduced upon a plea of the statute of limitations, in order to see whether the finding is correct; and it is not bound by the verdict to the same extent, as when the question is one of unmixed fact, and when the conclusions thereon are to be drawn by the jury.</p> <p>Where the testator frequently spoke of the services rendered to him by the defendant, and always declared a determination to remunerate him, and said in reference to those services, “that as yet he had made him but little remuneration, but that he would compensate him tenfold:” Held, that this was an admission of an existing liability, and a willingness to pay, which took the case out of the operation of the act of limitations.</p> <p>It is not necessary in order to revive a debt barred by act of limitations, that the admission or promise should be for a specific sum in numero.</p> <p>In debt, where the damages recovered are more than the amount laid in the declaration, it is not error.</p> <p>Where the declaration, in debt, for services rendered, stated the debt to be due 1st January, 1S36: Held that as time in such case was not material, -interest could be recovered from the time the debt was due, although it was due anterior to the time laid in the declaration.</p> <p>A party cannot read as evidence for himself, his own answer to a bill of discovery; but where he proposed reading bill and answer, and the defendant said, “you may read the bill,” and he then read both bill and answer: Held, that the verdict will not be set aside upon this ground, especially where (he reading of the bill and answer, could not not have varied the result.</p>

<p>When the report of the clerk and master, upon which a decree is made, does not identify the land sold, but refers to the mortgage deed, which is a part of the record, as containing the description, it is sufficiently certain.</p> <p>Where mortgaged land is sold under a decree foreclosing the mortgage, the sale is not void by the provisions of the champerty act of 1821, c 66, although there was an adverse possession when the bill was filed, and at the time when the decree and sale was made.</p> <p>Judicial sales, or sales made by virtue of a judgment or decree, are not • champertou3, although there is an adverse possession at the time of the' decree and sale.</p> <p>The champerty act of 1821, does not apply to conveyances made in ful-filment of bona fide contracts, made and entered into before there was an adverse possession.</p>

This suit was brought upon an administrator’s bond against the defendants ás sureties. The bond was given in 1812, and is payable to “James-Hibbits, chairman of Smith county, and his successors in office.” The suit is brought in the name of D. Canada and R. Hibbits, administrators of James Hibbits, deceased.

This was an action of detinue for several slaves. The facts were as follows: John Davis, the intestate, on the 16th of August, 1812, being about to intermarry with Sarah Peak, executed jointly, with his intended wife, a paper writing, by which they promised and agreed to give Elijah W. Kimbrough, a son of said Sarah, a “negro girl, named Luce, and her increase, and one horse and one feather bed and furniture, when he arrived at the age of 21 years, and then if he should die…

<p>Where property belonging to A is in the adverse possession of B, and A forcibly takes the property into his possession: Held, that although A might be guilty of a trespass in so doing, yet in an action of detinue brought agaiust him by B, B could not recover back the possession.</p>

<p>Where a tenant, after the expiration of his term, but whilst in possession, disclaims his landlord’s title and holds adversely for seven years afterwards: Held, that the act of limitations would not protect him, unless his disclaimer was known to the landlord, and possession was held adversely seven years afterwards.</p>

<p>A bona fide possessor of land, from whom the same had been recovered, is entitled to.such improvements as have permanently improved the land, provided the value thereof does not exceed the value of the rents and profits.</p> <p>But where a party improves land, with a knowledge of, or notice of a better title in another, he is not entitled either in law or equity to any diminution from the rents and profits by reason of said improvements.</p> <p>The different acts of assembly allowing the value of improvements to be recovered at law, are reconcileable with the constitution to the extent above laid down, but no further.</p>

This was an action of ejectment tried in the circuit court of Franklin county. Upon the trial, a mortgage deed from John Dougherty to Luke Tiernan & Son was offered in evidence, which was however, rejected by the court, because in the opinion of the judge, the probate endorsed on the deed was not sufficient.

<p>A administered upon the estate of B, and died within six months thereafter. C then administered. From the time of the grant of administration to A, to the commencement of this suit more than two years had elapsed, but less than two years from the grant to C: Held, that the act of 1789, c 23, limiting suits against executors and administrators to two years did not bar the suit.</p>

<p>A bill of sale takes effect from its execution and delivery, (although not registered) as against the donor and all who claim as volunteers under him.</p> <p>Sin.ce the passage of the act of 1831, c 90, a parol gift of a slave, although accompanied by a delivery, is void, and passes no title to the donee.</p>

<p>'JL'he practice of the circuit courts to dispose on the first day of the term of causes which are not litigated, and to which no . defence is intended td be made, is unobjectionable.</p>

This is an action of trover, brought by Baily and Cochran against Dowell, to recover the value of a negro slave Elias-. The bill of exceptions shows that Dowell, on the marriagé of his daughter wi.h Dawson B. Harris, made a verbal loan to them of the negro in controversy, who remained in the possession of Harris thirteen years. In 1824, Harris and his wife parted, and Harris sent the negro in controversy to Dowell, with his wife.

The only question in this case arose upon the charge of the court below to the jury. The charge is slated in the opiniou of the court, delivered by Judge Green.

<p>A dowress cannot maintain an action of assumpsit for use and occupation against a tenant from year to year, for rents which accrue after the death of her husband, and before the assignment of her dower, although no damages were given to her when her dower was assigned.</p> <p>Under the statute of 1784, c 2, § 9, authorising the widow to file her petition in the county or the circuit court of the county where her husband usually resided, if the right to dower is disputed, a jury must be empannelled to try it, and the damages are to be assessed by the jury.</p> <p>If, upon a petition filed under said statute, the widow’s right to dower is not disputed, and she claims damages which are not admitted, a writ of en-quiry must be awarded to ascertain them.</p> <p>If the widow’s dower be assigned, under the provisions of the act of 1784, and no damages are assessed or given to her in that proceeding, her right to recover damages is forever gone.</p> <p>If a separate and distinct action would lie by a widow to recover damages after an assignment of dower, it must be brought against the tenant of the freehold, whose duty it is to assign dower, and not against a tenant for years,</p>

<p>The act of 1801, c 6, § 59, which says “that not more than two new trials shall be granted to the same party,” means that when the facts have been fairly loft to the jury upon a correct charge of the court, and they have thrice found a verdict for the same party, no new trial shall be awarded ; it does not apply to cases where verdicts have been set aside for error in law.</p> <p>In general, if the bill of exceptions does not state that all the evidence in the causéis contained in it, the court will presume the evidence was sufficient to support the verdict.</p>

T. Butterworth, in bis last sickness, intending to dispose of his property to the plaintiff, Eleanor Tally, by a nun-cupative will, called upon a witness, Clements, and stated that he wished to make his will, and thereupon declared that he wished and desired his property to go to his niece, Eleanor Tully. No-person but Clements was present when this declaration was made, but the decedent requested him to send some other person to whom he might make the same declaration.

<p>A sheriff who does not reside in the “county” or “district” from which on execution issues, is not liable to he proceeded against by motion for a failure to return the process.</p> <p>The act of 18S5, c 19, § 6, subjecting sheriffs and their sureties_to judgment on motion for a failure to return process, whether the sheriff lives in the “district” or “county,” from whence the execution issued or not, is prospectivo in its operation, and only applies to defaults subsequent to tho act.</p>

This is an action of detinue. On the trial below it was proved that Joel Brown wished to raise money, and expressed an'intention of selling the negro Peter, now in controversy. On the 10th of August, 1826, he offered to sell him to the plaintiff, Payne, upon the following terms, to wit: That he, Brown, would reserve to himself a life estate in said negro for his life time, and at his death the slave to go to Payne, if he Payne would pay him ,$¡200.

<p>Where the relation of vendor and vendee, and not that of landlord and tenant exists, notice to quit previous to commencing an action of ejectment is not necessary</p>

<p>A parent is not bound to employ counsel to defend the suits of his minor children.</p> <p>An express contract is necessary to enable an attorney to recover compensation from a father for services rendered his minor child, in defending him upon a charge of murder.</p> <p>The law never implies a promise to pay, unless the consideration has passed to the person sought to be charged, or to some other person for whom he is bound by law to provide.</p> <p>An express promise to pay need not, however, be proved by direct and positive testimony, it may be inferred from circumstances; as where an attorney appears for a minor, and the father is present, aiding, assisting, and consulting with the attorney in conducting the defence, in the absence of proof to the contrary, a jury would be warranted in finding that the attorney had been retained by the father.</p> <p>Where one man is bound by express contract to pay for services rendered, the law, in general, never imposes the same obligation on another by implication.</p>

<p>A party to a suit who has given B as his surety for the costs, cannot by faking the paupers oath, have B discharged or released, for the purpose of examining him as a witness.</p>

<p>By the provisions of the act of 1824, c 22, § 6, a person who intends en» tering vacant land in the occupation of another, must give to the latter thirty days notice of his intentton, and if such notice is not given, the entry and grant is declared void: Held, that a grant without such notice being given, covering more land than is occupied or cultivated by another, is not void in toto, but is only void for such part as is actually occupied and cultivated by the latter.</p>

<p>Where slaves are sold at execution sale, no bill of sale proved and regis.-tered is necessary as against creditors or purchasers.</p> <p>Where a party agrees with the plaintiff in the execution, that he will purchase the slaves levied on, when sold by the sheriff, but it was also agreed that he was not to pay the price bid to the plaintiff, unless the title was good: Held, that this contract did not vitiate th e sale.</p>

<p>Where a judgment is rendered against one of two sureties, who pays the judgment: Held, upon a motion made by him against the personal representatives of his co-surety for contribution, that the act of limitations commenced running against him from the time he paid the money, and not from the time the judgment was rendered against him.</p>

<p>Where the venire facias directs the sheriff to summon “good and lawful men,” to serve as jurors, it is sufficient, without specifying the particular qualifications uecessary to constitute them “good and lawful” jurors.</p> <p>In proceedings in superior courts, it is not neecegsary that the record should show the qualifications of the jurors.</p>

<p>Where, by the terms of their charter, the proprietors of a turnpike road forfeited their right to receive toll if they permitted the road to be out of repair, they are also liable in such case to be proceeded against by an indictment for a nuisance.</p>

The defendant was indicted in the circuit court of Giles county, for gaining. He pleaded in abatement that one of the grand jurors who returned the presentment was neither a freeholder nor a householder of Giles. The solicitor in behalf of the state replied that he was the owner of land by entry, but on which a grant had not issued in the county of Giles. To this replication there was a demurrer.

The defendant and others were indicted in the circuit court ■of Cannon county, for unlawfully and maliciously stabbing John N. Tucker. Held: the said John N. Tucker, in and upon the left arm and right hip of him, the said John N. Tucker, then and there feloniously, unlawfully, and maliciously did thrust and stab contrary, &c.” The defendant was convicted, and prosecuted a writ of error to this court.

vThe defendant, a slave, was indicted in the circuit court of Robertson county, for the murder of Nancy Newton. She pleaded “not guilty.” At the May term, 1837, of said court, the cause was called for trial, and on Wednesday, the 3d May, 1837, a jury was empannelled to try it.

The defendant was indicted at the January term, 1838, in the circuit court of Davidson, for a rape, alleged to have been Committed on the body of Patsy Mayo. The defendant pleaded “not guilty.” The cause was taken up for trial, and á jury empannelled and sworn to try it, at the same term. The bill of indictment was read to the jury, and the prisoner thereon convicted.

This was an indictment for larceny, found in the mayor’s, court of Nashville. The defendant was convicted and prosecuted a writ of error to this court. The facts are stated in the opinion.

<p>In order to constitute murder in the first degree, a design must be formed to kill wilfully, that is of purpose, with the intent that the act by which the life of a party is taken, should have that effect — deliberately, that is with cool purpose — maliciously,'that is with malice aforethought; and with premeditation, that is, the design must be formed before the act by which the death is produced, is performed.</p> <p>Where the circuit judge stated, “that the jury are the judges of the law as it applies to the facts, they are the exclusive judges of the facts, but in making up their verdict they are to consider the law in connexion with the facts, but the court is the proper source from which they are to get the law, in other words, they are the judges of the law as well as the facts, under the direction of the court: Held, that this Was a correct exposition of the law. *</p>