Volume 2 — Tennessee Reports

<p>A Surveyor not permitted to contradict the record of his survey.</p>

<p>Practice in Ejectment.</p>

Divorce. The petition stated, the several causes which are expressed in the first and ninth sections of an act entitled An act, concerning divorces,” 1799 c. 19 Ten. Laws 175-7. objected to the reception of evidence to prove facts previous to the passage of the law, upon the principle that it would give a retrospective and ex post facto operation to the act, which would be contrary to the 11th and 20th sections of the declaration of rights.

Indictment for an assault and battery with an intent to murder—plea not guilty. The defendant with five or six others in company, were quarrelling with a man by the name of Stephens.

<p>The plaintiff's counsel moved for a continuance upon an affidavit, stating, that his claim was bottomed upon an entry made in Carter’s office or a Carter’s warrant, that the records of those entries were lost, that he had applied to the Secretary of the State of Tennessee, with whom the different bundles of locations were deposited, for safe keeping, for a copy as the next best evidence that he knew of ; (a) that the Secretary refused, as having no authority by law to give copies. That without evidence of the entry, he cannot safely come to trial, and expects to procure such evidence at the next term.</p>

Ejectment, plea not guilty, and issue as usual. The plaintiff had the oldest grant, upon which he relied, without producing an entry. His boundaries were identified.

CASE, for goods, wares and merchandise, sold and delivered ; plea, non assumpsit, & issue &c. The plaintiffs resorted to various modes of proof to establish the account. Some items, by disinterested testimony : other articles were proved to have been charged, in the hand writing of a clerk, who did business in the house and who was dead. Two charges, in the hand writing of the same clerk, did not specify the goods delivered, but stated the a amount as per bill.

Ejectment, Plea, not guilty, and issue. The plaintiff claimed under a grant for 32000 and acres of land, calling to begin at marked trees, thence north 1025 chains to the north east corner of a tract of land granted to Stokeley Donelson, for 25060 acres &c. and this last tract of Donelson’s, calls to adjoin another in his name, of 60400 acres, which begins where the Kentucky, late the Virginia line, crosses cumberland river agreeably to the annexed figure.

Suit before a single Magistrate, appeal to the county court, and from thence to this court. The plaintiff owed a person of the name of Norman $ 10, who obtained a judgment before a justice of the peace. Execution issued ; was levied by the defendant, and $ 9 75 cents made. The execution issued in September 1806, and no return was made to the justice, till the 15th of Janury 1809.

Ejectment. It was stated by the counsel, that both these causes depended on the same title papers, and evidence ; and with the consent of the court, it was agreed that a Jury be impannelled to try both cases. The plaintiff claimed under a grant, to Robt. Kerr, with which he connected his title. The defendants deraigned their title as follows. Judgment was obtained against the plaintiff’s father in Hamilton’s District.

This was an action brought on a bond, given by the defendant to Stephen Bean in the year 1800 containing a covenant to convey, part of a 500 acre tract, with a reference to one of the lines of a tract, which had previously been sold out of the same tract. The quantity, or particular boundaries were not expressed. Plea, covenant performed, non infregit conventionem, and Release ; Replications and issues, on the first two pleas.

Appeal—Debt on a bill under seal; plea infancy, application and issue.

Debt for $300. Plea in abatement, stating, that on the day of suing out the original writ, that Bacon the plaintiff, and defendant, were residents of this district ; and that it appears by credits endorsed on the obligation, the demand was reduced below the sum of $250, or 100 pounds ; wherefore the plea prays judgment whether the court will take cognizance &c. It was moved, to set aside this plea ; when Kennedy and Campbell for the plaintiff argued.

Ejectment for 228 acres of land, and not guilty pleaded ; the defendant having disclaimed all the lands to the north of the military boundary line. The plaintiff produced a grant to David Phillips dated the 15th of September 1787, and proved the lands in question, to be the lands described therein ; that Phillips conveyed to Robert Goodloe, the said land, and that the lessors of the plaintiff are his heirs at law.

Indictment for horse stealing, being felony without benefit of clergy. It appeared in evidence, that Willie Barrow had advanced money for the defendant, and he took the horse, for the stealing of which he is indicted, in pledge, with liberty to use the horse in working a gin ; and the defendant had rode a mare of Barrow’s to Nashville on business of Barrows. Barrow saw him in Nashville & told him to carry the mare home and bring him the horse to return on.

Appeal. This case as brought up, was stated to be so defective, that the court could not give judgement. There did not appear to be any issue between the parties. The judgment below, was upon an award. The party cannot avail himself of any thing upon appeal in this case. This mode of proceeding was intended for trial of facts, and writs of error for matters of law. The latter was the only remedy in this case.

In Equity. The bill stated that the plaintiff and defendant, were citizens of North Carolina, that the plaintiff being desirous or obtaining good land in this state, made himself acquainted with vacant lands for the purpose of locating for himself. That the defendant came to his house, and appeared to be desirous of getting information from him, for the purpose of locating.

In this case the prosecutor filed an affidavit, stating that a man who lived in Smith county, was a material witness, that he was not present when the other witnesses were bound over, so as to be bound with them, that he has issued a subpoena but the witness has not attended, &c. Wharton objected, that no reason appeared why the witness was not present when the others were bound over. The cause could not be continued.

Indictment for murder. The attorney general produced in court, a boy about ten years of age, the brother of the defendant, desiring that the court would examine and see if he was of sufficient discretion to be sworn and sent to the grand jury. Upon examination, it appeared that he had not any sense of the obligation of an oath, nor of any of the consequences of swearing falsely. He had not even an idea of a future state of existence. Per Curiam.

Indictment for Stabbing under the statute, being felony. A person summoned as a witness for the defendant, was produced as a juror. The attorney general objected, which caused considerable argument.

James Wallace by his attorney complains of Wm. Clark Jr. in custody &c. of a plea of trespass with force and arms, and strong hand, for breaking and entering said plaintiff's house and debauching his daughter Jane Wallace, and getting her with child, to his damage &c. for this that whereas, the said Clark on the 20th day of December 1805, and at divers other days and times between that day and the 4th day of February 1806, then next ensuing, with force and arms, to wit, with…

Indictment for taking with force, arms, & violence, and carrying away a negro woman from George M. Deadrick. It was proved that George M. Deadrick had possession of the Negro in the town of Nashville ; that the defendant with two others started from home about 4 miles from Nashville, when it was nearly dark. The two persons with him, who were sworn did not know for what purpose the defendant was coming by town.

In this case a witness, capt. Buller was produced as to the credibility of Samuel Finley, and asked if he had not heard Finley say that he did not believe that there was either God or Devil, that the old and new Testament was no more than any other history. The Attorney General argued that by the Laws of England every rational creature whatever his belief might be, could be a witness.

<p>If a person dies in Virginia, leaving his wife executrix, and she remove to this state with the effects &c. The courts of this states have jurisdiction, and may compel a specific performance of the will.</p>

<p>Appeal dismissed for want of attornies reasons for the appeal. Afterwards a certiorari was obtained, which was argued.</p>

Indictment in the county court for eves’ dropping ; appeal to this court, and the only question was whether such a prosecution can be maintained. It was insisted for the defendant, 1st. that there was no statute of the state upon the subject. 2d That the act which adopted the laws of England confined such adoption to such as are consistent with our mode of living, 1715, c. 31. s 5.

Certiorari. An order had been made by the county court of Knox for a road, leading from the west end of Cumberland street to fall into the road existing at the time, on the other side of a creek about a quarter of a mile Westwardly of the town. The road existing at the time, was one which lay opposite the west end of main street.

Certiorari; rule to dismiss. said, much inconvenience had arisen from these rules to dismiss certiorari’s. Upon obtaining a rule, the grounds ought to be stated. The petition disclosed a discovery of material testimony after the trial below.

In Equity. The facts were, that on the 6th of April 1804, Alexander Roulstone, one of the defendants, shipped at New Orleans in the barge called Deborah, Lindsey Shannon master, a quantity of goods, for account, and risk of Col. Charles Lynch, of Shelby county Kentucky, another of the defendants ; to be delivered to the said Lynch or his assigns, he or they paying freight at the port of Louisville on the Ohio.

<p>After the assignment of a bill of lading the right stoppage in transion is list.</p>

Per Curiam. Where it is shewn to the court that the party claims under a deed with a general warranty, the law presumes the title papers to be in the hands of the warrantor;* and the warrantee is not required to produce them in evidence. Certified copies are sufficient-See 1 rep. 2. who argued for the person offering the copy in evidence, relied on the practice in the superior courts.

<p>Case agreed from the circuit court of Blount county, upon a caveat.</p>

<p>A party obtaining a continuance in the federal court must pay the costs of the term.</p>

This was an action of ejectment, to which the defendants pleaded not guilty, and issue joined. The plaintiff produced is evidence a grant form the state of North Carolina to William Polk for 5000 acres, dated April 17, 1800. This grant was founded on a removed warrant from John Armstrong's office, or the office opened pursuant to the act of 1783, c. 2 * The plaintiff proved his boundaries, and that the defendants were settled within them.

<p>Writ of Error, from the Circuit Court of Roane county.</p>

<p>Writ of Error from the circuit court of Cocke county.</p>

<p>In an action of detinue, bro’t by husband and wife, charging the loss or the negroes from their possession ; good after verdict.</p>

<p>Writ of error from the circuit court of Blount county.</p>

<p>The sons of a devisor are competent witnesses to a will divided none of the lands of the deceas'd are devised to term.</p>

<p>Regular pleadings are not required in proceedings before justices of the peace ; formalities are overlooked ; the law favors these proceedings.</p>

<p>Duress must be pleaded, & the defendants acts & conversations may be given in evidence in support of such plea.</p>

<p>Writ of error from the circuit court of Carter county.</p>

<p>Whilst a suit is pending in equity a certiorari will not be allowed for the same matter.</p>

<p>On the usual affidavit, a certified copy of a grant was produced by the defendants counsel. who alledged that it had been altered on its face, and so it appeared, the copy ought to be received in evidence.</p>

<p>A defendant, shewing no kind, of title cannot dispute the validity of a military grant, tho' it lie without the bounds of the military reservation.</p>

<p>Upon a joint assumpsit suit is brought, both defendants were arrested but one of them pleaded, nor did the plaintiff take any step against the other—upon the issue, verdict was in the plaintiff’s favor, and judgment was arrested which was affirmed in the supreme court.</p>

<p>Appeal in the nature of a writ of error, from Washington circuit court.</p>

<p>Appeal in the nature of a writ of error from Washington circuit court.</p>

<p>Appeal from Anderson circuit court.</p>

<p>Our courts can take notice ex officio of the laws of a sister state.</p>

<p>Construction of the Tennessee statute of frauds and perjuries, passed in the year 1801.</p>

<p>Appeal, in the nature of a writ of error, from the circuit court of Knox county.</p>

<p>Caveat from the circuit court of Roane.</p>

<p>Appeal in the nature of a writ of error from the circuit court of Claiborne.</p>

<p>Where the second line of a survey calls to run to an old marked line it must extend there, though it be 150 poles further than the distance called for in the grant.</p>

<p>Upon an appeal to the supreme court, for refusing to grant a new trial, the whole evidence ought to be set out; otherwise this court will support the verdict, if by any intendment it can be done.</p>

<p>Locality and boundaries of land, are questions for a jury ; and if in ejectment a verdict be found on sufficient evidence, or upon improper evidence, the regular course is, to move for a new trial in the one case, and except to the opinion court in the other.</p> <p>When neither is done, a bill in equity for relief against the judgment, will be dismissed.</p>

<p>The record of a suit between A and B, cannot be given in evidence in a suit between C & D, who became interested in the former suit, before its termination ; but not vies to it.</p>

<p>No exceptions can be taken to imperfect pleadings after verdict.</p>

<p>An affidavit by agent or principal, stating that he had not the original paper, nor any control over it, sufficient to let in the secondary evidence of a registered copy.</p>

<p>Case agreed on a caveat.</p>

<p>In deciding on land claims, courts of equity proceed according to the spirit and meaning of the land laws.</p>

<p>Appeal in the nature of a writ of error, from Washington circuit court</p>

<p>Proceedings of courts, as well of limited jurisdiction as others, are presumed to be regular— Mode of proceeding to render land liable for taxes.</p>

<p>Ejectment. In error.</p>

<p>If, agreeably to the subject matter, a plaintiff in equity, can have plain, adequate, & unembarrassed redress at law, he come into a court of equity, without disclosing sufficient grounds in his bill.</p>

<p>An action will not lie, for one of several instalments—secured by bill single until the last instalment shall be payable ; aliter of instalments due by bond with a penalty.</p>

<p>Writ of error.</p>

<p>In an action upon a promise of marriage, general issue non assumpsit, evidence may be given of getting the woman with child, in aggravation of damages.</p>

<p>It is the balance due on contract, which gives jurisdiction to a magistrate.</p>

<p>A record of a judgment of another state, is prima facie evidence of the justice of the demand.</p>

<p>Doctrine of pleading-motions in arrest of judgment & for new trials—covenants how construed, & of pertinent evidence.</p>

<p>Appeal in the nature of a writ of error.</p>

<p>Appeal in the nature of a writ of error from the circuit court of Knox county.</p>

<p>The act of N.C. in 1779 respecting the stealing of slaves is in force—bow construed.</p>

<p>There must be an affidavit annexed to a bill seeking relief up bond.</p>

<p>Appeal inthe nature of a writ of er’-ar.</p>

<p>In what cases, after trails at law, a court of equity will entertain jurisdiction.</p>

<p>Upon a caveat.</p>

<p>A sheriff’s Sale under execution on a judgment obtained on a sci. fa. in which heirs without naming them, are defendants, is valid and conveys the interest of such heirs.</p>

<p>Orders are on a different footing from bills of exchange & suit may be brought on the original contract. A slight acknowledgment is not sufficient to take a case out of the statute of limitations.</p>

<p>What shall be sufficient specialty in entries, and mode of surveying entries of general description.</p>

<p>Where but one of a survey in the form of a parallelogram, is marked and two corners made, but the line is considerably too long, the third and fourth lines must be run the courses and distances called for in the grant, & the fourth line made to close, disregarding the course.</p>

<p>A surveyor cannot be compelled to testify against his certificate of survey. An actual survey is not necessary to the validity of a grant. An entry may be given in evidence to fix the boundaries of a survey.</p>

<p>An action at law cannot be maintained upon a lost bond, but relief must be sought in equity.</p>

<p>In a writ against heirs the 9th sec. of the act of 1715, c. 48, is a bar.</p> <p>The same section maybe pleaded by executors and administrators.</p> <p>Nor will any acknowledgment after that time take the case out of the statute.</p>

<p>Entries, are either special, vague, or indifferent from their face, the latter is presumed to be special, if its specialties are called for in the plat of survey, whereby the onus probandi is thrown on the party opposing the claim—construction of particular entries.</p>

<p>An appeal cannot be taken from a judgment of a justice of the peace,at any day, after the judgment rendered.</p>

<p>What shall be a lawful fence or enclosure, and the method of obtaining, redress before justice of the peace for damage done be cattle, within those enclosures.</p>

<p>On contracts for delivery or payment of property, what kind of notice is necessary, in relation to the plan of delivering the property</p>

<p>Writ of error.</p>

<p>Garnishment, cannot reach a property debt not due</p>

<p>Appeal in the nature of a writ of error from Hawkins circuit court.</p>

<p>Upon a caveat, the court will take an award into consideration in determining who has the best right, and equitable as well as legal evidence may be received.</p>

<p>A naked possessor, sued in ejectment, will not be permitted logo into proof, showing that a mesne conveyance, under which the lessor claims, was forged, the conveyance having been proved, and registered.</p>

<p>An appeal from the circuit court of Smith county,</p>

<p>In making a survey, the surveyor is bound to respect the lines of older claims and may include any adjoining lands,the entry for which, is of a younger date than that surveyed; unless prohibited by the calls of the elder entry thus to be surveyed.</p>

<p>In what cases, and in what manner improvements on land,shall be allowed to be paid for after eviction.</p>

<p>Ejectment, in Error.</p>

<p>Possession of land by virtue of a bond for seven years is not sufficient to protect a person under the statute of limitations.</p>

<p>A party who hath both law and equity on his side, will prevail in equity against him who hath only equity.</p>

<p>Mode of construing entries, and making surveys. A tenant cannot dispute the title of his landlord.</p>

<p>The act of 1807. c. 73. s. 4. repeals the act of 1799. c. 20. respecting horse stealing; and the offence of horse stealing committed between the years 1799 & 1807, cannot be punished in any manner since the passage of the act of 1807.</p>

<p>Mere inadequacy of price, will not of itself vitiate a contract. Where there is a risk on both sides. Deeds of infants are only voidable: what acts of the infant after coming of age, amount to an disaffirmance-Purchasers without notice, &c.</p>

On the trial of this cause the plaintiff’s counsel offered in evidence forty copies of warrants having the same numbers with those referred to in the grant to Sevier for 25060 acres, certified by the secretary of North Carolina to be the same warrants on which Sevier's grant issued.