Volume 20 — Tennessee Reports

Pamelia London filed her bill in the chancery court at Columbia in the year 1838, against John London, praying a decree for dower and damages.

On the 8th day of December, 1828, Turner instituted an action of ejectment in the circuit court of Franklin county, against Wiley J. Hines, the tenant in possession, for the recovery of the… Held: and the cause remanded for a new trifit to be had thereupon, without prejudice to either party.”'

On the 12th day of February, 1836, Daniel and Andrew Richmond procured a warrant against William R. D. Phipps in the followings words: «State of Tennessee, Wilson county. To any lawful officer to execute and return. Summon William D. Phipps, to appear before me or some other justice of the peace for Wilson county, to answer the complaint of Daniel and Andrew Richmond in a plea of debt due by account. Given under my hand and seal this 12th day of February, 1836.

<p>The facts of this case as exhibited by the record are, so far as they are necessary to be stated to present the point determined by the court, substantially as follows. Alfred Hartwell and George D. Crosthwait, two practising physicians in the county of Rutherford, entered into articles of partnership, which were as follows, to wit:</p> <p>“Articles of agreement for a partnership to commence orí the 14th day of January, 1834, between Alfred Hartwell and George D. Crosthwait, of Murfreesboro’, Tennessee;</p> <p>“Article 1. The partnership to continue under the firm of Hartwell and Crosthwait for two years from and after the 14th day of January, 1834, unless either one of the parties should determine to relinquish the practice or move to some other place; in that event the party so determining shall be at liberty to do so at the expiration of one year, and not sooner.</p> <p>“Article 2. The partnership shall be in every respect equal; all debts, either by account or otherwise, from our joint services, shall at the expiration of the term be equally divided; the expenses of the firm shall be equal.</p> <p>“Article 3. Each party shall at all times use all honorable means to promote the interest of the firm, and their labors to be as nearly equal as possible. In testimony whereof'we affix our hands and seals the day and date above.</p> <p>Alfred Hartwell, [Seal.]</p> <p>Geo. D. Crosthwait, [Seal.]”</p> <p>Under these articles they rented a shop in the town of Murfreesboro’, for which they executed a note in the name of the firm of Hartwell & Crosthwait; they contracted a store account in the name of the firm; they subscribed their firm name to articles for the establishment of a race track; they owned a blooded horse jointly, but executed in payment therefor a note with their individual names signed by each respectively; they purchased medicines on two several occasions during the existence of their partnership, for which they executed their firm name, each of those purchases amounted to about one hundred dollars in value. The evidence did •not justify the belief that the partnership existed in regard to any thing except the practice of physic.</p> <p>■In the month of May, 1835, during the existence of the partnership, Piartwell executed a promissory note in, the words following:</p> <p>“$350 00, Four months after date we promise to pay to William W. Ross, or order, three hundred and fifty dollars, at the Planters Bank of Tennessee, value received. Witness our hands this 14th day of May, 1835.</p> <p>HaUTWEM. & CilOSTHWAIT.”</p> <p>This note was endorsed first by Ross and then by William H. Hanna; it was discounted at the Planters Bank and the proceeds paid over to Hartwell, and by him appropriated to his individual purposes. This note was in the hand-writing of Hartwell, and it does not appear that complainant knew of the existence of the note till after the death of Hartwell, about the period of its maturity; when informed of the fact he appeared surprised, and stated that the use of his name was wholly unauthorized in the transaction. On more than one occasion-, during the lifetime of Hartwell, Crosthwait when presented with notes signed by Hartwell and Cros-thwait protested against the use of his name as unauthorized. Hartwell was in embarrassed circumstances, and by some of the witnesses said to be “notoriously insolvent.” There was no evidence which justified the belief thatRoss knew that thé note was made for the purpose of raising money to answer the individual purposes of Hartwell, or that it would be appropriated in that way. Two physicians proved that it was unnecessary that the firm of Hartwell & Crosthwait should have expended more than about one hundred dollars annually in the purchase of medicine, and that it was not necessary that partners in the practice of physic should execute notes in the name of the firm, nor was it usual.</p> <p>When the note fell due it was discharged by Hanna. Ross refunded the money to Hanna, took the note, and instituted an action of debt on the 1st of July, 1836, in the circuit court of Rutherford county against Crosthwait. Crosthwait pleaded that he did not execute the note nor authorize the execution of it. Issue was taken upon this plea, and the cause was continued till June term, 1837, when a trial took place. The jury gave a verdict in favor of the defendant, A.motion was made to set aside this verdict, and the motion prevailed and a new trial was granted to the plaintiff. The cause was continued until the February term, 1838, when a jury of Rutherford, the honorable Samuel Anderson presiding, returned a verdict in favor of the plaintiff for the amount oí the note and damages. This verdict was set aside, upon motion of the defendant, and a new trial ordere'd. cauge was again continued until the July term, 1839s when it was again tried upon the facts as exhibited above.</p> <p>The honorable Samuel Anderson charged the jury amongst other things as follows: “The general rule as to the liabilities of partners for the contracts of one member of the firm is that each is liable unless the nature of the transaction is such as to show that the contract was for the benefit of the partner making the contract, unless the person dealing with the partner did in fact know, or might have known by reasonable inquiry, that such contract was for the individual benefit of that member of the firm.. In the absence of such actual or circumstantial knowledge, and when the transaction itself does not show it was for the individual benefit of the partner making the contract, the legal presumption is that the contract was entered into for the benefit of the firm, and the partners will be held liable.” The court further charged the jury that “if a partnership could exist and be carried on without incurring any expense whatever, In such a partnership one member of the firm could not bind the' others by note without showing more than the mere fact of partnership; the jury must determine from the proof whether the firm of Hartwell & Crosthwait did in fact incur some expense in accomplishing the object of their partnership, viz: in practising physic together; if so, the contract of partnership conferred authority on each to buy such articles as in his judgment would best advance the interest of the firm.” The court further charged the jury that “if some expense was incurred in carrying on the business of the firm, Hart-well had authority to bind his co-partner Crosthwait in such Contracts for such expenses, and in thus acting he was exercising a general power connected with that business as distinguished from a special power, and the partnership contract conferring a general authority in the business, it follows that Crosthwait is bound on the note sued on unless the face of the note showed that it was for the individual benefit of Hart-well, or unlcjs Ross actually knew at the time he endorsed the note that it was for the benefit of Hartwell, or might have known that fact by reasonable diligence. In . .. .. i-i, ■the cause upon this view of the subject the jury would determine from the proof whether Hartwell was insolvent at the date of the note, or greatly embarrassed,^ whether his situation was known to Ross, and if so, whether a prudent, ■conscientious man with such knowledge would have his suspicions excited as to the fairness of the transaction. The jury would also look to the size of the note, the nature and object of the partnership, the season of the year the note was given, and determine whether the amount of the note at that ■season of the year was for a larger sum than would be reasonably required for the uses of the firm; if it was, then the face of the note itself should have put Ross on his guard, and he would not be permitted to say that he endorsed the note upon the credit of both partners under a belief that the contract of partnership alone conferred upon Hartwell authority to give the note of the firm to an unlimited amount.” The court further charged the jury that “they had a right to determine from the proof whether Hartwell and Crosthwait did in fact purchase their medicines upon a credit and give the note of the firm for payment, or authorize others to give s.uch notes for them; and to enquire also whether they gave the note of the firm for house rent or other expenses; if they did under these circumstances, it would be proper for the jury to say whether such a course of dealing would not of itself authorize them to infer an express assent or agreement that each should trade in procuring necessaries for the partnership upon the credit of the firm; if, from this custom of dealing, the jury should infer such express assent, the power conferred on each by such express assent would be in its nature a general authority and make each liable to the extent before stated, although the court should have erred in the opinion advanced that the contract of partnership of itself necessarily conferred such authority.” The jury returned a verdict in favor of the plaintiff for the amount of the note, three hundred and fifty dollars,, and eighty dollars and fifty cents damages.</p> <p>A motion was made by the defendant to set aside the ver-diet, but the court overruled the motion and gave judgment 1 according with the verdict. An appeal in the nature of a writ of error was obtained by the defendant to the supreme court.</p> <p>They cited 4 Kent, 17, 27,42, 43: Livingston vs. Rosewell, 4 Johns. 251: Dickinson vs. Valpray, 21 Eng. Com. Law Rep. 41: Smith’s Mercantile Law, 24: 14 Wend. 133,141: Wilson vs. Williams, 14 Wend. 146.</p> <p>cited Walden vs. Sherburne, 15 Johns. 422: Bond vs. Gibson and Jephson, 1 Camp. N. 0. Rep. 185: Swan, and others vs. Steele, and others, 7 East, 210: Ridley, etal. vs. Taylor, 13 East, 175: Livingston vs. Rosewell, 4 Johns. 251: Dubois vs. Rosewell, 4 Johns. 262: Lansing vs. Caine and Ten Eyck, 2 John. 300: Dickinson vs. Valpray, 21 Eng. Com. Law Rep. 41: Collier on Partnership, 221, 304, 303: Ballow vs. Spencer, 4 Cow. Rep. 163: Vallet vs. Parker, 6 Wend. 615: Whitaker vs. Brown, 14 Wend. 505.</p>

On the 26th day of November, 1825, William Berryhill filed a bill in the district court of chancery at Franklin against William M’Kee, Edward M, Greenway and Ephraim H; Foster. The defendants acknowledged service of the bill. On the 4th day of September, 1826, Greenway filed his answer, and on the 6th day of December, 1826, M’Kee filed his answer.

At the May sessions of the county court of Stewart county, in the year 1825, Nathan Ross, chairman of the county court of said county, recovered a judgment for the sum of four hundred and seventy-two dollars and forty-two cents against Jonathan Cooley and Richard Cooleyadministra-tors of the estate of Wm. M. Cooley, dec’d. The plea of fully administered being found in favor of the administrators, the plaintiff had a judgment for damages, to be levledde bonis testa toris.

James Todd instituted an action of trover in the circuit court of Cannon county on the 17th'day of June, 1838, against Isaac W. Elledge, to recover of him the value of a wagon, a bay horse, two wagon bridle-s, two horse collars; &c. &c. This property he alleged belonged to him, that it x x */ o was worth five hundred dollars, and that it was converted by Elledge to his own use. .Elledge pleaded not guilty; issue was taken upon this plea, and at the May term, 1839, the…

<p>Where a suit has abated by the death of either plaintiff or defendant, it is within the equity of the statute of 1715, ch. 27, sec. 6, to permit afresh action to be brought within a year after such abatement.</p> <p>The adverse possession of a slave for more than three years vests (he title with the possession. Kegler vs. Miles, M. and Y., 426.</p> <p>The possession by the testator of property of which he hadno right cannot be connected with the possession of his executor so as to enable the executor to hold by virtue of the statute of limitations.</p> <p>If an executor takes and detains property of which his testator had possession, but no title, he will b e held individually liable in detinue for the wrong ful detainer.</p>

Leroy H. Cage, the chairman of the county court of Smith county, on the 6th day of November, 1838, instituted an action of assumpsit in the circuit court of Smith county against Harvey Hogg, the agent of the commissioners of common schools. The plaintiff declared that the defendant had received the sum of five thousand dollars, which belonged to him, as chairman, and withheld it.

On the 26th day of January, 1839, James W. Wheeler, as assignee, instituted an action of debt in the circuit court of Giles county, against Aehilles A. Dickerson, John H. Walker' and Carter White, upon a bill single of the following tenor: “$196 93: On or before the 25th day of December next I promise to pay Walker and White, or order, one hundred and ninety-six dollars and ninety-three cents, for value received of them. Witness my hand and seal. “October- 28th, 1837.

John Wilks made his will in Maury county, appointing his sons, Wm. Wilks and John Wilks, his executors, and died.

T. W. Gilman was convicted of common gaming within the corporate limits of the city of Nashville, in the mayor’s court, and sentenced to pay afíne of ten dollars and the costs of prosecution. He moved the court to arrest the judgment. The motion was overruled, judgment rendered, and the defendant appealed in error to this court.

cited act of 1762, ch. 5, seG, 24: act 1794, ch. 1, sec. 65: N. & C. 90: 8 Yerger, 164: 7 Yer-ger, 103: 7 Yerger, 304: 5 Hay. 30: 7 Yerg, 143: Wright’s distributees vs. Wright and others, M. & Yerg. 43: Massin-gal vs. Tate, 4 Hay. 30. relied upon the act of 1762, ch. 1, sec 24, C. & IN. Dig. 370, and cited Craddock ys. Pritchet, Peck, 23.

Carroway instituted an action of trespass on the case in the circuit court of Overton county, on the 22d October, 1838, against Joseph Anderson, and at the February term of fhat court, 1839, he filed his declaration, in which he averred that the “defendant, in consideration that the plaintiff would agree to settle a certain controversy concerning the boundary of the land of the plaintiff and defendant, then and therp being unsettled anti in disputp, and in consideration that…

This action was commenced by Hughlett’s lessee in the circuit court of Hickman county on the 21st of February, 1839, against John W. Huddleston, the tenant in possession, for the recovery of one hundred and ten acres of land lying in Hickman county. At the March term, 1839, a judgment was rendered against the tenant in possession, John W. Hud-dleston.

On the 25th day of July, 1839, Gilbert Deer and wife Susan, (formerly Susan Devin,) William Devin, John Devin, David Nowlin and his wife, Elizabeth, (formerly Elizabeth Devin,) all residents of the county of Marshall and State of Tennessee, presented their bill to the honorable Edmund Dillahunty, one of the judges of the circuit courts, verified by the affidavits of David Nowlin, Gilbert Deer and John Devin, three of the complainants.

Joseph Hinkle, a citizen of Lincoln county, was a stockholder in the Fayetteville bank. Robert P. Currin, a citizen of Williamson county, obtained a judgment against the institution for the sum of nine hundred and ten dollars and costs of suit. A fi. fa. issued upon this judgment to the sheriff of Lincoln, who returned that he could find no property whereon to levy it.

On the 25th day of June, 1839, the Planters Bank of Tennessee issued a writ, returnable to the circuit court of Williamson county, against David Johnson, John Ray and Henry R, W. Hill, summoning them to appear before the said court at its July term, “to answer the president and directors of the Planters Bank of a plea of trespass on the case to their damage two thousand live hundred dollars.” H. R. W. Hill acknowledged service of the summons.

Moses Swan instituted this action of ejectment in the circuit court of Rutherford county against Parker and Collier, and at the July term, 1839, the cause was submitted to a jury under the charge of the honorable A. J. Marchbanks. A verdict was rendered in favo.r of the plaintiff for seventy acres of land. A motion was made to set aside the verdict but overruled, and a .judgment rendered in conformity therewith.

On the 1st day of February, 1838, Benjamin J. Bledsoe instituted an action of trespass on the case in the circuit court of Overton county against William Chouning, and at the June term following the plaintiff filed his declaration in the following words: “Benjamin J. Bledsoe, by attorney, complains of William Chouning, summoned, to answer him of a plea of trespass on the case to his damage, &c. for that on the 17th day of January, 1838, in the county of Overton, the…

William Gray instituted an action of debt in the circuit court of Williamson county on the I9th day of April, 1838, against Joseph D. Poison, Charles D. Parrish, Alexander F. M’Kinney and Benjamin F. Tappan, upon a bill single. Poison was the principal and the others were his securities. Poison pleaded “payment and set off,” and a verdict and judgment were rendered against him, from which there was no appeal.

On the 14th day of May, 1838, E. P. Pratt instituted an afctiorv of trespass with force and arms, in the circuit court of Sumner county, against Robert M. Boyers, for an assault and battery committed upon him in the streets of on the 19th day of May, 1838, with a horsewhip. The de-claratioh Wás in the usual form, and the defendant pleaded the plea of son assault demesne, upon which issué was taken. At the June term, 1839, the cause was tried, judge Rucks presiding.

• The facts of the case are as follows: Thibbets, the trus-. •tee of Wilson county, made a motion against Benjamin S. Mabry and his securities, in the circuit court of Wilson county, on the 17th day of October, 1839, A. J. March-banks presiding, for a failure on the part of said Mabry to pay over, according to law, the balances of the taxes by him collected as sheriff of Wilson county for the several years of 1838 and 1839.

Joseph H. Marshall and Jacob Hartshorn, partners in trade, instituted an action of covenant, on the 10th day of April, 1839, in the circuit court of Davidson county, on a policy of insurance against the president and directors of the Nashville Marine and Fire Insurance Company.

At a circuit court held for the county of Smith, in the town of Carthage, Judge Caruthers presiding, the grand jury, on the 16th day of April, 1839, returned a true bill againstElijah, a slave, the property of Elijah Carmon, for an assault and battery with an intent to commit murderin the first degree, by killing maliciously and premeditatedly David C. Puryer.

This bill was hied by Samuel M’Adoo on the 25th of September, 1834, in the circuit court of Rutherford, and subsequently transferred, under the provisions of the act of 1835, ch. 41, to the chancery court at that place, against the defendant, Sublett.

On the 23d day of April, 1.838, Thomas J. Ryan> who was the assignee of Reuben Bartlett, instituted ah action Of debt in the circuit court of Robertson county against David Dar-den and Miles J. Turbeville for the sum of two thousand three hundred and twelve dollars and seventy-four cents upon an obligation, which was in the following words: “On or before the 25th day of December next we promise to pay to Réuben Bartlett, or order, twenty-three hundred and twelve dollars and…

Samuel M’Clanahan instituted an action of covenant in the circuit court of Rutherford county, on the 3d day of May, 1838, against Walter Keeble. At the March term, 1839, the court, the honorable Samuel Anderson, judge of the fifth circuit, presiding, gave judgment for Keeble upon a verdict rendered in his favor.

Mitchell erected a dam which caused the water to overflow the land of Vaughn; Vaughn, in an action at law, recovered damages against Mitchell, and by a decree in chancery based thereupon had the dam… Held: that law was a privy in estate by the purchase, and stood in the same situation with Mitchell, and that the judgment against Mitchell established the nuisance against him.

William Turner was indebted to Tompkins in the sum of three hundred and twenty-three dollars and thirty-one cents, to Patterson and Tompkins in the sum of one hundred dol-Jars, to D. M’Auly in the sum of one hundred and forty doL an¿ †0 jy an¿ A. M’Auly in the sum of six hundred and twenty-nine dollars and fourteen cents, and being in embarrassed and failing condition, executed on the 7th day of July, 1837,a deed by which he conveyed intrust to Charles Lewis all his personal…

This is an action of' ejectment instituted, in the circuit court of Wilson county on the 7th of May, 1836, by James Walton against Ansel B. Newsom for one hundred and fifteen acres of land lying in Wilson county on Cedar creek. It was continued from time to time till the 9th of February, 1839, when, on the plea of not guilty, a verdict was rendered in favor of the defendant. A motion was made to set aside the verdict, which was overruled.

On the 22d March; 1839-, Joseph M. Irwin, á citizen of Davidson county; filed his bill in the chancery court at Franklin, in the middle division of thé State, against the -president and directors of the Planters Bank of Tennessee.

Samuel Richardson, a citizen of Gibson county, Tennessee, filed this bill in the chancery court of M-’Minnville, in the middle division of the State, on the 5th of December, 1837, against James P. Thompson, the administrator of Thomas Hopkins, deceased, praying that certain slaves, to wit, Jesse, Amy, Fielding, Shadrach, Letitia, Sally, Nancy, Celia and Jacob, and their increase, twenty-two in number, be decreed to be delivered up to him by the administrator aforesaid to be…

On the 18th day of May, 1836, the Mayor and Aldermen of the town of Franklin in the county of Williamson, instituted an action of debt against Thomas L. Robinson in the circuit court of said county, and at the July term, 1836, the plaintiffs filed their declaration in the following words: “The Mayor and Aldermen of the town of Franklin, by attorney, complain of Thomas L. Robinson, who is summoned to answer the said Mayor and Aldermen of the town of Franklin of a'plea that he…

On the 9th day of July, 1838, Achilles Hare instituted an action of ejectment in the circuit court of Jackson county against Ritta Kelly and John J. Kelly. The defendants pleaded not guilty, and issue was joined thereupon. On the 17th day of July, 1839, the cause was submitted to the jury. The plaintiff read to the jury an entry in the following words: “State of Tennessee, Jackson county.

Mary Currie, in the year 1815, then a resident of the State of North Carolina, a widow, of advanced aged, had one son, Wilson Currie, and three daughters, who had intermarried with W. Mitchell, John Love and James H. Bowman; she had also six step-children. She transferred to her children at this date, by bill of sale, the greater portion of her property.

Isaac Shelby died in 1813, having made his last will in August, 18 Í‘2, in the following words, to wit: “It is my will that my executor keep all of my property of 'every description together on my plantation for the support of my wife and children, except such as he may deem sufficient to pay my just debts and funeral expenses; and it is my will that my executor divide my property asnear equally as can be done, between my wife and my ten children,Henry, John, Priscilla,…

On the 26th day of March, 1838, Hiram Twiss, a citizen of Davidson county, and Mark Leavenworth, a citizen of Connecticut, filed this bill in the chancery court at Gallatin, as creditors of the estate of Samuel Martin, deceased, on behalf of themselves and the other creditors who should come in under the decree that might be made and contribute to the costs and expenses thereof.

William M. Branch instituted an action of trespass on the case in the circuit of Maury county against William Horsely on the 16th day of April, 1838.

This bill was filed by a portion of the heirs and devisees of Charles M’Alister, deceased, in the chancery court at Franklin, Williamson county, on the 12th day of January, 1837, against their guardian and his securities, for an account. Charles M’Alister, a citizen at the time of his death of the town of Franklin, Williamson county, made his last will and testament on the 7th day of October, 1818, and died in some short time thereafter.

At the June term, 1839, of the circuit court of Wilson county, the grand jury of the county indicted John Lawrence, a free man of color, for stealing bank notes of the yalue of four hundred and eighty dollars, the property of John Muirhead. He pleaded not guilty, and the cause was submitted to a jury, his honor É.

Thé Mayor and Aldermen of Columbia instituted an action of debt in the circuit court of Maury county, on the 10th day of August, 1837, against Esau Beasly, to recover of him the sum of one hundred and fifty dollars, a tax imposed by the corporation of Columbia upon all persons keeping houses for the purpose of retailing spirituous liquors within the corporate limits of said town.

John Stewart, Boyce Stewart and Daniel Stewart, partners in trade, instituted this action of covenant, on a policy of insurance, in the circuit court of Davidson county, against the Tennessee Marine and Fire Insurance Company, to recover damages for the loss of seventy-six hogsheads of tobacco insured from Smith county, Tennessee, to N ew Orleans, and which was shipped on board the ñat-boat, Black Hawk, and sunk in the Mississippi river.

At the November term of the circuit court of M’Nairy county, in the year 1834, a bill was presented by Roger Barton, the attorney general of the fifteenth solicitoriaL district, to the grand jury, against Ferguson Ward, for the murder of Moore G. Wisdom, on the 30th day of August, 1834, in the aforesaid county, by stabbing. The grand jury returned this bill into open court endorsed a true bill. The defendant pleaded not guilty, and issue was joined thereupon.

Jesse Brown instituted an action of ejectment in the circuit court of Henderson county on the 10th day of November, 1835, against Terresha Johnson for the recovery of the possession of two hundred and seventy-four acres of land lying in the county of Henderson, in the ninth surveyor’s district, in the fifth range and tenth section, on the waters of Sandy river. The cause was tried at the July term, 1837, and a verdict rendered for the defendant.

John Somers obtained a grant on the 2d day of August, 1824, from the State of Tennessee for three thousand eight hundred and forty acres of land lying in the 12th district in Weakley county, in the 1st range and 7th section. Somers, a resident of Wilson county, requested B. M. M’Farland, a-resident in the vicinity of the land, to grant leases on it for him.

John Crockett instituted an action of trover in the circuit court of Carroll county on the 20th October, 1831, against James Latimer for the recovery of the value of a kiln containing ninety thousand burnt brick, seized and converted by Latimer. The defendant pleaded not guilty, and issue was taken thereupon.

Benjamin Wilks instituted this action of trespass on the case on the 10th day of September, 1834, in the circuit court of Carroll county, against Thomas Banks. The facts of the case are as follows: In July, 1830, the plaintiff, holding a note of hand upon one Haywood Bledsoe for the sum of seven hundred dollars, assigned the same to his brother, Jesse Wilks, and requested him to purchase a negro man, George, therewith, from said Bledsoe for him.

At the June term, 1838, of the circuit court of Obion county the grand jury returned a presentment against Henry M. Darnal in the following words, to wit: “State of Tennessee, Obion county. Circuit court, June term, 1838.

This bill was filed on the 29th of April, 1835, in the circuit court of Weakly county, by John Jenkins against William Atkins, in order to compel the specific execution of a contract concerning a tract of land lying in Weakly county. It was subsequently transferred to the chancery court by virtue of the provisions of the act of 1835, ch. 41.

On the 12th day of February, 1839, W. D. Wilkerson, a justice of the peace for the county of Fayette, issued an attachment against E. J. Rawlings to the sheriff of Fay-ette county, commanding him to seize so much of the estate of said Rawlings as would satisfy the sum of one hundred and fifty dollars debt, due to A. F. Tucker, suing for the benefit of George H. Wyatt.

George W. L. Marr instituted an action of assumpsit in the circuit court of Obion county on the 10th day of October, 1835, in the name of Alíen A. Hall, for his own .benefit, against Joel S. Enloe. At the November term succeeding Marr filed his declaration, containing several counts, in substance as follows: 1.

Francis Micheaux instituted an action of debt in the circuit court of Fayette county on the 15th day of November, 1836, against N. Atkinson, then sheriff of said county, for an alleged escape permitted by said Atkinson.

Elijah 0. Hull instituted an action of assumpsit against Nathaniel E. Norment on the 25th day of January, 1837, in the circuit court of Hardeman county.

Shadrach Pipkin instituted this action of assumpsit against William R. James on the 20th September, 1838, in the circuit court of Hardeman county, to recover the consideration money which he had paid for an ice-house and lot in the town of Bolivar. It was tried at the March term, 1839, on the plea ofnon-assumpsit, before Judge Barry, and a verdict and judgment rendered for the .defendant. The plaintiff appealed in error to this court.

On the 5th day of June, 1837, a subpoena issued from the office of the clerk of the circuit court of Hardeman county to the sheriff thereof, commanding him t'o summon Henry W. Brown and Joseph Crews to appear forthwith before the judge of the circuit court, then sitting in B’olivar, to testify in favor of Elizabeth Cochran, in a cause therein depending wherein the said Elizabeth was plaintiff and William Hester was defendant, under the penalty of one hundred and twen¿…

Catherine Dement sued out. a warrant on the 13th day of June, 1838, under the hand of Rufus F. Boyd, a justice of the peace for Gibson county, against John D. Agee, in trespass, for taking and converting to his own use two head of cattle, the property of the plaintiff, to her damage fifty dollars. This warrant was executed on Agee, and defendant notified to appear before H- Harrison, on the 27th June, 1838.

This bill was filed on the 3d day of October, 1835, in the chancery court at Bolivar, by Edward D. Jones, a citizen of Giles county, against James Read and Alexander Read, citizens of the State of Mississippi, to subject a tract of land, lying in Fayette county, to sale for the satisfaction of certain judgments recovered by Jones against James Read in the county of Giles.

Thom.a.s N. Eubank instituted an action of debt in the name, of - Margaret Rucker, for his use and benefit, in the circuit court of Haywood county, on the 6th day of June, 1S37, against Ambrose. R. Marr, administrator of Alexander Marr, deceased. At the June term, 1837, the plaintiff filed, his declaration, in which he. averred “that, on the 25th day of January, 1832, at a circuit court of law and chancery held and. continued for the town of Lynchburg, in the.

Jesse Brown instituted an action of ejectment on the 11th day of October, 1836, in the circuit court of Weakley county against Alfred Gardner and Robert Mosely for the recovery of the possession of six hundred and forty acres of land lying in the county of Weakley, in the twelfth surveyor’s district, on the waters of Obion river, in range one, section nine.

John Anderson instituted an action of ejectment in the circuit court of Carroll county on the 4th day of December, 1834, against Jacob Lowder and William L. Patton for the recovery of the possession of six hundred and forty acres of land lying in the county of Carroll, in range one, section four. The cause was continued from time to time till the March term,' 1837, when it was submitted to a jury, judge Martin presiding.

<p>The circuit court affirmed the judgment of the county court and gave judgment for forty-one dollars, damages, on affirmance, Defendant appealed in error to the supreme court, where the judgment was again affirmed, and in entering up the judgment the clerk of the supreme court omitted to enter the damages aforesaid: Held, that the court had the power at a subsequent term to correct such mistake and enter judgment for the correct amount.</p>

At the April term, 1838, of the circuit court of Cocke county George Penland, Daniel Evans and George W. Allen were indicted jointly and were convicted of gaming, and judge Anderson fined them each the sum of five dollars; separate judgments were entered therefor against them. The clerk taxed in the bills of cost the sum of ten dollars against each defendant, as tax fees for the attorney general.

The grand jury of Claiborne county at the May term, 1838, of the circuit court, returned a presentment against Bennet H. Posey, in the following words*. “State of Tennessee, Claiborne county. Circuit court, May term, 1838.

On the 23d day of January, 1837, the grand jury of Se-vier county indicted John Long for the wilful, deliberate and premeditated murder of Jane Long, by shooting her with a rifle gun on the-day of-, 1837, in the county of Sevier, State of Tennessee. The venue was changed by the court, by the consent of the defendant and the officer of the government, to the county of Knox, a competent jury not being obtainable in the county of Sevier.

Robert Haggard, a constable of Roane county, was indicted in the circuit court of that county for a misdemeanor in office, in levying upon and selling a mare, the property of one Henry Boyd.

Gray Garrett, attorney general of the 12th solicitorial district, at the instance of Isaac A. Miller, prosecutor, preferred a bill to the grand jury of Sevier county at,the August term, 1838, of the circuit court of said county against'John Evans for an assault upon said Miller with intent to commit murder in the first degree.

At the June term, 1838, of the circuit court of Knox county, the grand jury returned into op,en court a presentment against Robert Smith in the following words: “State of Tennessee, Knox county. June term, circuit court, 1838.

Thomas Bennett instituted an action of trespass on the case in the circuit court of Jefferson county on the 3d day of March, 1836, against John Baker. At the April term, 1836, the plaintiff filed his declaration, charging that the defendant had maliciously prosecuted him by State’s warrant upon a false charge of arson by burning two houses, the property of said Baker, and that he had been duly acquitted thereof before a justice.

This is an action for words spoken by the defendant of the plaintiff, Rebecca. The words in substance were: “You (meaning the said Rebecca) have killed one negro and nearly killed another.” Upon demurrer, the circuit judge was of opinion that the words were not actionable, and gave judgment for the defendant, from which the plaintiff prosecuted an appeal in the nature of a writ of error to this court.

William Williams and Thomas W. Humes instituted an action of trespass on the case in the circuit court of Knox county on the 30th day of May, 1838, against the Mayor and Aldermen of Knoxville.

Rachael Williams filed her bill in the chancery court, held at Dandridge for the fifth chancery district in the eastern division of the State, on the 16th day of January, 1838, against Robert and John Woods in forma pauperis.

On the 4th of March, 1839, William Ross instituted an action of trespass on the case in the name of James P. M’Dowel, Francis A. M’Corlde and James H. Jones, partners in trade, assignees of Lincoln and Berry, for his own use, against Alfred M. Carter and Benjamin Brewer, in the circuit court of Greene, on the following instrument: “Due Lincoln and Berry sixteen hundred pounds of good merchantable assorted bar iron, delivered at Elizabethton, which will be paid in full of…

On the 19th day of September, 1837, Charles Smith filed his bill in the chancery court at Dandridge, in the eastern division of the State, against William C. Story.

Paulina 0. Mims, Eliza E. Mims, Caliph G. Mims, Almira C. Mims and Albert W. Mims, mipor children and heirs at law of Albert Mims, deceased, residents of the county of Cocke, by their guai’dian, Samuel M. Hughes, filed their bill in the chancery court at Greeneville, in the eastern division, against Robert W. Pullam, administrator of Alfred Mims, deceased, against the heirs at law of said Alfred, to wit, Milly E.-, William C., G. M., Drury H., Mai'y, Moses and Aaron J. Mims,…

On the 11th day of February, 1833, Abel Pearson deposited in the office of the clerk of the federal district court for the eastern district of Tennessee the title of a book in the following words: “An analysis of the principles of divine government, &c. a dissertation on the prophecies in reference to the rise and fall of the beast, the cleansing of the sanctuary, the beginning and duration of the millenium,” &c. to which he claimed a right and obtained a certificate…

On the 5th day of February, 1834, Levi Goin hired a negro boy to Pleasant Murphey for the period of twelve months from that date, by an article of agreement, under seal; Mur-phey bound himself to pay Goin fifteen dollars for the hire, clothe the boy during the time, and to re-deliver him at the expiration of the hiring.

At the October term of the circuit court of the United States held at Knoxville in 1834 the president, directors and company of the Bank of the United States recovered a judgment against James Berry, Jacob F. Foute, Thomas Henderson and Daniel D. Foute for the sum of five thousand three hundred and seventy-two dollars and forty-seven cents and costs of suit.

On the I8th day of February, 1832, John Gass instituted an action of ejectment in the circuit court of Greene county against Robert Malony for the recovery of the possession of one hundred and fifty-nine acres of land lying on the waters of Lick creek, in Greene county. After various continuances it was submitted to a jury at the February term, 1839, judge Powell presiding.

This bill was filed by John M’Intosh and his wife, Elizabeth, against the devisees of Peter Burton, deceased, and his administrator, for dower, and damages for the detention thereof, andfor a distributive share of his personal estate. In 1829 Burton and complainant, Elizabeth, were married in Williamson county, Burton having seven children by a former wife, some estate, and being advanced in life, and the complainant, Elizabeth, having also several children.

Seth Curlin instituted an action of trover in the circuit court of Obion county against John W. Byrd, a constable of Obion county, to recover the value of a mare sold under Ji.fa. against Curlin by Byrd to satisfy the debt of a creditor. He recovered a judgment, Harris, judge, presiding, against the constable for the value of the mare, from which the constable appealed in error to this court.

Robert Lowry and Calvin Rushing warranted John S. Wormley on a bill single, executed by him to B. B. Everett, for the sum of thirty-six dollars, and assigned by Everett to them in the following… Held: that the note is taken in a due course of trade. 10 Yer. 429.

This is an action of covenant instituted in the circuit court of Gibson county. The issue of law upon which the cause was decided in the court below is fully set forth in the opinion of the court.

This is an action of trespass on the case from Fayetté county. The plaintiff, David Jarnigan, alleges in his declaration that-he was lawfully possessed of a saw and grist-mill on the north fork of Wolf river, in Fayette county, and that the defendants had erected a dam across the same stream below his mill, whereby its back-flowage greatly impeded and injur'éd 'the operation of the plaintiff's mill. The defendants pléaded not guilty, upon which plea issue was taken.

Richard Hall and JohnT. Simpson, partners, instituted an action of debt in the circuit court of Shelby county, for the use of William B. Greenlow, on the 3d day of January, 1839) ágairtst Robert Gift. At the February term succeeding they filed their declaration in thfe form usual upon bills sihgle; in which they set forth that Robert Gift made his writing obligatory to the plaintiffs, binding himself to pay them the Sum of seven hundred dollars.

At the July term of the circuit court of Hardeman county, 1839, the grand jury returned a bill of indictment into court against James Bagley, charging… Held: that the word “gamble” was the most apt and substantial word to convey the idea of gaming. 2 Yerger’s Reports, 472: see also Martin and Yerger, 127. That he who bets upon a game of hazard or address is within the act has never been the subject of a doubt with the bar or benchi 2 Yerg. 472: State vs. Smith, 2 Yerg. 273.

Tobias Smitheal filed this bill in the chancery court at Brownsville on the 4th day of November, 1836, against John Polk and Murdoch Murchison, citizens of Tipton county».

On the 27th day of May, 1833, Christopher Hunt, a citizen ' of Fayette county, made his last will and testament. The first clause in this will is in the following words: “1. I give and bequeath unto my beloved wife, Sarah Hunt, and to her heirs forever, all real and personal estate which X received by her, and all other estate which I shall or may receive of her deceased father’s estate.

Thomas Stark instituted an action of trespass on the case against Asa Magee on the 20th day of August, 1838, in the circuit court of Weakley county.

John Catron instituted an action of ejectment in the circuit court of Tipton county against Edmund P. Gaines for the recovery of the possession of a tract of land lying in said county. A judgment was rendered upon an issue upon the plea of not guilty in favor of Catron. Gaines appealed in error.

William W. Hart and Royal G. Hart, partners in trade, instituted an action of trespass on the case in the circuit court of Shelby county on the 28th March, 1837, against Mason Pilcher, the captain of the steam-boat Wm. L. Robeson, engaged in the. navigation of the. Mississippi river. The plain tifia were the owners of a wharf-boat permanently, attached to the banks of said river, at the public landing at the town of Memphis.

<p>Arthur sold town lots to Toby and took his three several promissory notes therefor, reserving a lien for the payment of them; these lots were, however, subject to a lien for the satisfaction of certain claims held by Ewing; whereupr on Arthur and Ewing entered into an agreement, by which Arthur assigned to Ewing two of the notes of Toby, the agreement and the assignment both stating that Ewing was to hold a lien on the lots for the satisfaction of the notes, and by which Ewing relinquished his original lien: Held, on a bill filed by Ewing to subjectthe lots to sale for the satisfaction of the notes assigned to him, that the notes so assigned were not entitled to any priority of satisfaction.</p> <p>Where real estate is sold and promissory notes are taken for the payment of the purchase money, retaining a lien for the payment thereof, and some of them are assigned with the lien and others retained: Held, that there being a general lien reserved for the satisfaction of all "of them, if there be not in such contact of assignment an indication of an intention to giye the ássigned notes a preference, none will be given, but the property will be sold for the satisfaction of all the notes) pro rata, if there be a deficiency".</p> <p>Where there is an agreement to set apart a particular fund for the satisfaction of a particular creditor, such agreement raises a trust and creates a lien upon such fund for the satisfaction of said creditor.</p>

Geoi’ge W. Smith filed his petition in the circuit court of Shelby county against Wherry, the entry taker, to compel him to receive certain entries which he had refused to do. JohnD. Graham was made defendant, and Barry, the presiding judge, ordered a peremptory mandamus to the entry taker. ■ From this judgment Graham appealed in error to the supreme court.