Volume 21 — Tennessee Reports

James Baker recovered a judgment against Eli Wilson and H. Wilson for fifty-nine dollars. A Ji. fa. was issued upon this judgment, which came to the hands of Alfred Agey, a constable of Campbell county, who levied it upon a horse, bridle, saddle and blanket, in the possession of Eli Wilson.

The facts of the cas.e are fully set forth in the opinion of the court, which was delivered by S. J, W. Lucky, special judge.

Nicholas S. Peck and John F. Gillespie, on the 11th day of October, 1833, entered five thousand acres of land in the office of the Hiwassee district. Held: that Hurst was constitutionally elected and in office for four years from the date .of said election.

«Nathan Hale, by his next friend, instituted an action of trover in the circuit court of Greene county in June, 1839, against William Grace to recover the value of a. horse. The defendant pleaded not guilty.

This cause was ^brought by appeal in the nature of a writ of error from the circuit court of Grainger county. The facts of the case are sufficiently set forth in the opinion of the court.

Hale recovered a judgment against Landrum for the sum of seven dollars before a justice of the peace for Greene county, on the 28th of January, 1832. From this judgment no appeal w.as prayed or granted.

John Jobe filed this bill in the circuit court of Carter county on the 20th March, 1835, against the defendants, Christian Carriger, John and James O’Brien, and against George Lacy. It was subsequently transferred to the chancery court at Jonesboro, and at the November term, 1839, the Hon. Thomas L. Williams, chancellor, dismissed the bill and ordered that complainant pay the costs. From this decree complainant appealed to this court.

<p>1. An indictment for obtaining goods by false pretences, must contain an absolute negative of the truth of the pretences employed.</p> <p>2. An order in the following words “Messrs. G. and L. please let the bearer K. Tyler, have five dollars in goods on my account. R. JET. L.” is negatived with sufficient certainty by an averment in the following words: “Whereas the said R. H. L. never did write, or send, or canso to be written or sent any such letter to the said Gains and Luttrell, or to any one else to let the bearer have any amount in the store whatever.”</p> <p>3. In an indictment for obtaining goods by means of a forged order, it is not necessary that the person who purports tobe the drawer of the forged order should have an interest in the goods obtained.</p>

<p>1. An- indictment under the Act of 1803, ch. 9, sec. 2, must charge-that the dis*. Sgurement of the beast was done maliciously.</p> <p>2. Cutting off the hair of the tail of a horse or his mane, if done maliciously and' o£ purpose is within the statute and indictable as malicious mischief.</p> <p>3. Where a confession is obtained by a promise to put an end to a prosecution, s nfession is inadmissible as evidenoe.</p> <p>Where the proof is direct and manifest that a confession is obtained by the hope of advantage to be obtained by the making of such confession, and the court left it to, the-jury to say whether- under all' the circumstances the confession was improperly obtained, telling the jury that if they believed that the confession was induced by a promise they ought to disregard it: Held, that such charge was en-o-. neous; it was th.e province and duty of the court to haye excluded, such testimony,.</p>

Jacob Peck filed this bill in the Chancery Court of Tazewell, in Claiborne county, against William Bullard, for the purpose of rescinding a deed of conveyance of two tracts of land.

Elizabeth Morgan, being about to marry Hambright Black, executed a deed of trust to Lewis Jordan whereby she conveyed to said Jordan certain slaves for the purpose of haying them emancipated according to the laws of the State and sent to Liberia at the death of said Elizabeth, she reserving to. herself a life estate therein. They were married, and the slaves came into the possession of Black.

<p>3. Porter devised his real and personal property to his wife Sarah with power to appropriate and dispose of the samo as she might doem proper amongst her children : Held, that Sarah Porter under this devise held this property subject to a trust for the benefit of her children.</p> <p>2. A power of appointment to children does not authorise appointment to grand children.</p> <p>/ 3. It is a principle sanctioned by reason and authority, that when one engages •r in an act so solemn and important as the execution and publication of a last will and testament,-he is not to be presumed as intending with reference to any portion of his property to die intestate.</p> <p>4. It is a rule in the construction of last wills and testaments well settled, that the scope and import of the entire instrument are to be considered for the purpose of discovering the intention of the testator; and that such intention, when once discovered, is of paramount and controllifig importance.</p> <p>5. A testatrix made a last will and testament in which were these words, “I bequeath all the balance of my property, both real and personal, that I am possessed of, consisting of four negroes, viz.Charlotte, Abraham, Ann and W arner, household and kitchen furniture, stock of all kinds, wagons, goods, &c.Held, that the testatrix intended to devise all the balance of her earthly esta to; that the general phrases, “all my property, both real and personal,’? embraced four thousand dollars in cash not mentioned, and that the subsequent specification of property does not restrict the operation of the above general phrases,</p>

This bill was filed by complainant McConnell in the Chancery Oourt at Madisonville, Monroe county, against the commissioners of the town of Madisonville and purchasers of lots sold by the commissioners.

This action of detinue was corntnenced in the county of Franklin, by W. T. & E. Floyd against John Goodman, on the 10th day of December, 1831, for the recovery of two slaves. The plaintiffs fix the value of slave Tony, in their writ and declaration, at $500, and Priscella at $300, and their damages at $500. After various continuances and trials the venue was changed to the county of Warren.

On the night of the 4th day of November, 1839, Hodges had a theatrical exhibition within the limits of the Corporation of Nashville, without a corporation license.

This is an appeal in error from a judgment rendered by the Circuit court of Davidson county, at the May term, 1840, in favor of Hurt, for $657 50, against Williams. Williams appealed in error to the Supreme court. Meigs, for Hurt, cited Thornton vs. Wynn, 6 Condensed Rep. 515: 7 East, 274: 1 T. R. 133: 5 John. 85: Chitty on Con. 362.

This is an appeal in error from the October term of the Circuit court of Lawrence county, 1840, J. H. Dew, special Judge, presiding. The facts upon which the cause was determined in the Supreme court are fully set forth in the opinion.

On the 29th day of January, 1839, George W. Graham recovered three judgments - before Willis Crutcher, a justice of the peace for the county of Williamson, against Benjamin C. Helm; one for the sum of $>140 81, another for $125 69, and the third for $160 90. These judgments were stayed according to the statute, by James Helm.

At the June term, 1838, of the Circuit court of Overton county, the grand jury returned a true bill against James Peek, in the following words: “The Grand Jurors of the State of Tennessee, sworn and charged to enquire for the body of the county of Overton, in the State aforesaid, upon their oaths, present that James Peek, yeoman, on the first day of February, 1838, with force and arms, in the county of Overton, in the State of Tennessee, fifty pieces of false, forged,…

Peter Sweeper instituted an action of .trespass, vi et armis, on the 24th day of January, 1839, in the circuit court of Jackson county, against William Woodfolk.

The Planters’ Bank instituted an action of debt in the circuit court of Williamson county, on the 28th day of = November, 1838, against B. S. Tappan, M. P. White W. O. Perkins and C. D. Parrish.

* At the June term, 1838, of the circuit court of Lincoln county, the grand jury indicted William Moffit, James H. Moffit and James Taylor, for an assault and battery upon the body of John Grigsby, by binding him to a tree, scourging him with rods, and thereby ■inflicting upon him divers wounds and bruises. The defendants pleaded not gijilty, and issue was joined thereupon. The cause was continued till the June term. The defendants, William Moffit and.

John H. Petty, a citizen of the county of Stewart, purchased of William B. Nelson a tract of land, containing three hundred acres, lying in the county of Stewart, State of Tennessee, for which Petty executed his bill single to Nelson, for the sum of $600, payable on the 1st July 1829. Nelson gave Petty a bond to convey him the land, and put him in possession thereof about the 22nd December, 1828.

Kay, Thomas and Greenfield, partners under the firm and style of Kay, Thomas & Company, instituted an action of assumpsit against Vanzant and others in the circuit court of Franklin county, on the 28th day of April, 184Q. The plaintiff entered a noli prosequi against all except Vanzant, and declared against him as the maker of a promissory note, which was in the following words: “$500, Nashville, August 9th, 1839.

On the 11th day of March, 1839, Moses P. White executed his note to A. M. White, for the sum of $2,100 28, payable four months after date, at the Planters’ Bank. A. M. White endorsed and delivered this note to Douglass, Wood & Co.; and Douglass, Wood & Co. endorsed and delivered it to the Planters’ Bank.

Johnson and Heam filed this bill in the chancery court at Lebanon on the 30th day of April, 1840, against Morgan, Allison & Co. to restrain by injunction the sale of certain slaves.

On the 28th January, 1839, Lewis C. Allen sold and conveyed by deed toH. Baldwin, certain slaves, horses, and two horse mules, in trust to secure said Baldwin and others therein specified, in the payment of certain debts, and to indemnify them against liabilities incurred for him.

Thomas Walker filed his bill in the chancery court, at Columbia, against Samuel Wheatly, praying the specific execution of a contact. Held: to a third person, and that he should execute his note to complainant for the $210 which he had paid respondent, with interest from the 1st of March, 1838, and complainant should deposit - the title bond with such person; that complainant did deposit the title bond; and he delivered up the $75 note in accordance with this contract of…

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

William J. Pyland instituted an action of debt in the circuit court of Marshall county, on the 2nd day of October, 1839, against John Russell, upon a note executed to Pyland by Russell, for the sum of $1000. The defendant pleaded that the note was won of him by the plaintiff in a wager on the election of Governor of the State of Tennessee, in the year 1839, and was without consideration.

William Williamson recovered a judgment at the February term, 1839, of the circuit court of Giles county, against Joel S. Carter, for the sum of $ 150 damages and $65 costs. On this judgment a ca. sa. was issued on the 23d January, 1840, which came to the hands of J. A. Jackson, a deputy of the sheriff of Giles county, Thomas S. Webb.

At the June term, 1840, of the circuit court of Lincoln county, Robert P. Currin recovered a judgment again Joseph Hinkle for the sum of one thousand and nineteen dollars and eighty cents and costs. From this j udgment Hinkle appealed in error to the supreme .court. All the material facts of the case are disclosed in the opinion of the court.

Gilmore instituted this action of trespass against Wilkins in the circuit court of Maury county, on the 13th of September, 1839, by virtue oí the provisions of the act of 1821, ch. 22, made for the benefit of poor persons. At the January term, succeeding, the defendant pleaded not guilty; and the cause was submitted to a jury, Judge Dillahunty presiding, at the May term.

<p>To enable the plaintiff to protect himself from the operation of the statute of limitations, by the saving in favor of accounts concerning the trade of merchandize between merchant and merchant, their factors or servants, the subject matter of the account must be concerning the trade of merchandizebetween merchant and merchant, their factors or servants, and there must be mutual and reciprocal accounts between the parties.</p>

Joseph J. Freeman instituted this action against Charles W. Cummings in the circuit court of Wilson county, and at the June term, 1840, Judge Anderson presiding, a judgment was rendered in favor of the plaintiff, from which the defendant appealed in error to the supreme court. cited Read vs. Wheeler, 2 Yer. 50. cited Kimball vs. Huntingdon, 10 Wend. 675: Russell vs. Whipple, 2 Cow. 536: Sexton vs. Johnson, 10 Johnson Rep. 321: G. Turnpike Co. vs. Horton, 9 J. R. 217: Hughes…

Ephraim Roberts sold a tract of land, containing sixty acres, in -ihe-county of Robertson, to Henry J. Mathews, on the Ilthdayof March, 1836. Roberts made a deed in fee-simple to Mathews, warranting and defending the title to him and his assigns, &c., and took Mathews’ obligation to pay him one hundred and seventeen, dollars, ninety-seven cents, one day after the date thereof.

This is an appeal from a decree of the chancery court at Charlotte, dismissing the bill of complainant Bell, upon a hearing on bill, answer and replication.

Stewart and Rickets entered into a covenant, by which Stewart bound his son Matthew to serve Rickets for the term of six years, and Rickets bound himself to give Matthew six months schooling, treat and clothe him well, and at the expiration of the time, give him a hat and suit of clothes. This contract was signed by Stewart and Rickets, but not by Matthew; neither does it appear that he dissented from the provisions of it.

At the January term, 1840, of the circuit court of Giles county, Judge Dillahunty presiding, an indictment was filed against William Aymette.

A. Dale and E. Dale, under the style of A. Dale & Co., executed and delivered their promissory note for the sum of $1710 to L. H. Duncan, on the 19th of September, 1838, payable four months after date at the Planters’ Bank.

- McCall’s heirs instituted this action of ejectment iu the circuit court of Maury county, against Smith on the first day of August, 1838. The case was submitted to a jury at the January term, 1840, on the plea of not guilty, Judge Dillahunty presiding.

Ransford McGregor, John McGregor and Jacob1 D, Donelsorr Entered into partnership in the business of merchandizing, in the ‘town of Jefferson1, in -the1 county of Rutherford, in the year 1829, Under the firm style of R. McGregor & Oo.

This is an appeal from a decree of the chancery court of Franklin, directing the abatement of a nuisance. The executors and devisees of John McNairy, deceased, filed their bill in the chancery court at Franklin, in 1838, praying art execution of the trusts of the will, under the supervision of the court. The court ordered a sale of the real estate, in order to effect a more just and equitable division amongst those entitled there1to.

Benjamin S. Tappan & Co., and Daniel Baugh, procured their respective writs of summons to be issued by the clerk of the circuit court of Williamson county, against Searcy D. Sharp. These writs were executed and returned to the November term,, 1839.

John McNairy, having made his last will and testament, died in the county of Davidson, leaving a very large real and personal estate. His executors, devisees and legatees on the 13th day of April, 1838, filed a bill in the chancery court at Franklin, praying that an account of the real and personal estate of the testator might be taken, and the trusts of the will executed under the supervision of the chancery court.

This is an action of trover, commenced in the circuit court of' Coffee county, on the 8th day of September, 1838, by Willie Rogers, administrator, de bonis non, of William Gibson, deceased,, against Stephen Winton for the recovery of the value of slaves. The defendant pleaded not guilty, and the statute of limitations,, upon which pleas issues were formed.

John Trimble, the attorney general of the sixth solicitorial district, presented to the grand jury of the circuit court of Davidson county, at the April term, 1840, a bill of indictment against James Claxton, for the unlawful, felonious and premeditated murder of Moses Parks, on the 7th day of April, 1840, by stabbing. The jury returned it a “true bill.” The defendant pleaded not guilty, and issue was joined thereupon.

Marshall P. Pinkard had three children by his'first wife,, to wit, Mary, Angelina and Oliver; she died; and he owing no debts, and having derived some property from his deceased wife, executed the following deed: ; - “Know all men by these presents, that I, Marshall P. Pinkard, of Williamson county, and State of Tennessee, for and 'in consideration of the natural love and affection which I have and bear towards my children, Oliver Pinkard, Mary Pinkard and Angelina Pinkard,…

This bill was filed in the chancery court at Franklin, on the 20th of September, 1838, by A. Van Wyck against C. C. Norvell and the President and Directors of the Union Bank, for an account of the proceeds of certain notes placed in their hands by C. C. Nor-vell, which, the bill alleged, belonged to complainant’ and were placed in Bank for collection.

This bill was filed in the chancery court at Franklin, on the -4th day of April, 1834, by Eleanor Jameson, against John Shelby executor of the last will and testament of her deceased husband, William C. Jameson, and against- D. S. Jameson, praying a de-'creefor an account of thirty shares of stock in the Bank of Nashville, belonging to the legatees of the estate of said Jameson •■and converted by said Shelby. 4t appears that in 1821, William 0.

At the November term, 1838, of the county court of Williamson County, James 0. Owen produced an instrument of writing in open court, and offered it for probate, as the last will and testament of Samuel Owen, who died some short time previous thereto, in the county of Williamson, in which he resided at the time of his death. This will nominated J. C. Ow.en, who was the brother of the deceased, as executor.

Perry and Patterson, administrators of Sarah Gill, with the will annexed, filed this bill in the chancery court at Columbia, against Robert R. Gill, executor of Thomas Gill, deceased, praying, that certain slaves and other personal property might be decreed to be surrendered to them, and for an account of hire, &c. It appears that Thomas Gill, the father of ten children, at an advanced period of life, intermarried with Sarah, a childless widow, with several collateral…

This bill was filed in the chancery court at Winchester, by Lackey and wife, Bennett and wife, and Gibson and wife, distributees of the estate of John Keaton, deceased, against James Campbell, J. H. Bradford and Elizabeth Keaton, securities of William Keaton, administrator of said John Keaton’s estate. It was filed on the 19th day of February, 1839, and prayed for an account and distribution of the estate, amongst those entitled, according to law.

William J. Harrison and others, distributees of the estate of William Turbeville, deceased, filed this bill in the chancery court at Franklin on the I2th day of December, 1838, against Miles J. Tur-beville, administrator of the estate of W. Turbeville, G. Childress, J. Darden, J. Davis, W. Powel, T. B. Matthews, D. Darden, and J. R. Bartlett, his securities, praying a decree for an account of the estate and for distribution thereof according to law.

Joseph L. Campbell filed this bill in the chancery court at Franklin, on the 22d of February, 1840, against Henry Baldwin, jr.f and against James'Plunket.

E. S. Hall, a justice of the peace for Davidson county, issued a State’s warrant on the 15th day of December, 1838, against Jesse J. Allen, for the murder of John Cooper, in the county of Cannon, on the 30th day of January, 1838. Allen was arrested in Davidson county by a constable, and confined in the jail of said county on the 15th of the same month.

This action of ejectment was commenced in the circuit court of Bedford county, on the 19th day of-August, 1836, by N. Cannon? against the heirs of John Overton, for the recovery of the possession of certain lands, lying on' both sides of Duck river, in said county.

This bill was filed on the 8th day of May, 1838, in the chancery court at Qallatin, by Martin & Saunders against Turbeville and others, for the purpose of having a contract .of sale and a deed of trust declared void, Saunders & Martin were wholesale merchants and partners in the town of Nashville. Turbeville was a retail merchant in the town of Springfield, in Robertson county.

<p>1. If a parent in chastising his child exceed the bounds of moderation, and inflict cruel and merciless punishment, he is a trespasser and liable to be punished by indictment.</p> <p>2. It is not the infliction of punishment which constitutes the offence, but the excess; and what shall be regarded as excessive, is not a conclusion of law for the court to announce, but is a question of fact for the determination'of the jnry.</p> <p>3. Where the circuit judge, after reciting certain facts as stated by witnesses, told the jury if they believed the statement of these witnesses, then the chastisement inflicted by the parent exceeded “the bounds of moderation and reason, and was barbarous in the extremeHeld, that this was making, what constituted excess of punishment, a conclusion of law, was an invasion of the province of jury, and therefore erroneous.</p>

George D. Johnson instituted this action of ejectment in the circuit court of Haywood county, on the 8th day of June, 1838, against Egbert Sheppard, for the recovery of the possession of land, lying… Held: being void for want of constitutional power in the legislature.

Bruce sold to Tatum ten head of cattle for the sum of $45 75, on the 28th day of January, 1839. The cattle were delivered, the money paid, and a bill of sale executed and delivered on the same day. Jameson sued out, in the county of Carroll, the county of the residence of the parties, an attachment against Bruce. This attachment came to the hands of Johnson, a constable, who levied it upon the cattle in the possession of Tatum.

At the March term, 1840, of the circuit court of Henderson county, Dunlap, judge, presiding, on the motion of King, district attorney, the following order was made: “It appearing to the satisfaction of the court, that James N. Cross,” (and some twenty others) “have been guilty of a misdemeanor by betting upon elections, and it further appearing, that no peison will prosecute them; it is therefore ordered by the court, that the attorney general file bills of indictment…

Clark recovered judgment against Pate before Day, a justice of the peace for Madison Gounty. Execution thereupon came to the hands of Sharp a constable. Sharp could find no property of Pate wherewith to satisfy this execution, and summoned Williams to appear before Day, the justice, on the 1st day of July, 1839, to say what he was indebted to Pate, and what effects of Pate he had in his hands or knew of.

Long and Byrne instituted an action of trespass on the case in the circuit court of Madison county, on the 1st day of April, 1839, against Hicks, administrator of Webb. There were two counts in plaintiffs’ declaration.

This case was tried before the Honorable W. C. Dunlap at the June term, 1840, of the Tipton circuit court. All the facts necessary to a correct understanding of the principles' involved in the decision of the cause are set forth in the opinion of the court. . cited McClain vs. Dunn, 4 Bing. 722: 15th E. C. L. Rep. 141: Chitty on Contracts 61.

McOorkle & Holmes executed a note to E. P. Stuart or order, for the sum of $1273, payable and negotiable at the Farmers and Merchants Bank of Memphis, and due the 27th of October, 1838. This note was endorsed by W. Harris, and was discounted by the Memphis Bank. Harris resided at Randolph, on the Mississippi river, at the execution of the note; and in the month, July, 1838, he left the town of Randolph and fixed his residence at the town of Columbia, Maury county, Ten.

The grand jury of Shelby county, at the June term of the circuit court, 1840, produced in court, an indictment against-Demsey Sanderlin, which was in the following words: Shelby County, \ Circuit Court,» June Term, 1840. “The grand jurors for the State of Tennessee, elected, impan-nelled, sworn, and charged to enquire for the body of the county aforesaid, upon their oaths, present, that Demsey Sanderlin, late of said county, laborer, on the 4th day of June, one thousand…

On the 9th day of April, 1849, Edwin H. Childress instituted an action of debt in the circuit court of Madison county against Pleasant M. Miller. The plaintiff declared in the usual form on a bill single, executed on the 19th day of January, 1837, by P. M. Miller, together with W. B. Miller, R. H. Byrne and John G. Chal-mers, (who were not sued in this action,) for the sum of $5000, payable twelve months after the date thereof.

McAlister a justice of the peace for Obion county, issued a warrant at the instance of Crocket, Harper & Co. against Moses Wright. On the trial an obligation was introduced in the following words: “$65 00. Six months after date I promise to pay Moses Wright the siim of $65 00 for value received, this 3d day of September, 1838.

This action of assumpsit, for use and occupation, was instituted in March, 1839, in the circuit court of Hardeman county, by Nuckolls against Barry, Dunlap, judge, presiding. The declaration contains three counts; the first upon a special contract; the others on a general indebitatus assumpsit, and quantum meruit.

This bill was filed in the chancery court at Brownsville, by Johnson against Brown, Smithers, and others, for the purpose of having two deeds of trust declared void, by reason of fraud, and to subject the property therein set forth to the satisfaction of judgments which Johnson had obtained against Brown, and Brown & Smithers, partners in trade.

Copeland, Venable and Goodman on the 5th day of December, 1838, presented a petition to Benj. C. Totten, judge, praying that a writ of mandamus be directed to Woods, entry-taker for Carroll county, commanding him to receive an entry on certain land lying in said county and place the same on the books of his office.

William Macon and Laban Bailey, as trustees for the society of Christians called Baptists, filed this bill in the chancery court at Bolivar, on the 6th day of September, 1839, against William C. Sheppard, to divest him of the legal title to one acre of land in the county of Hardeman. The bill charges, that a tract of land containing one hundred and fifty-five acres, lying in Hardeman county, was granted to Thomas Washburn.

The president and directors of the Union Bank of the State of Tennessee instituted an action of assumpsit in the circuit court of Ufadison county, on the 2nd day of August, 1839, against Williams and Chalmers, as the makers of a promissory note for the sum of $2,250, and against Jameson and Keats as the endorsers thereof. The plaintiffs declared in the usual form and defendants filed a joint plea of non-assumpsit.

D. Vaught executed a bill single to Thomas Robinson, binding himself to pay him $3149 85. Robinson endorsed the instrument to Alton,Dewy & Tailor,and died before the maturity of the same. Vaught, the maker of the note, and Mary Robinson, were appointed executor and executrix of the will of Robinson, and Vaught was co-executor at the time of the maturity of the obligation, but renounced, and was released, before this action was commenced.

The President, Directors & Co. of the Union Bank of Tennessee, instituted this action of assumpsit in the circuit court of Shelby county, on the 16th day of September, 1839, against Carr and Boyers, the drawer and endorser of a bill of exchange.

At the March term, 1840, the grand jury of the county of Henderson returned into court a bill of indictment against Stephen Snell in the following words: ‘‘^lendfrsonTounty, J Circuit court> March term> 1840’ The grand jurors of the State of Tennessee, elected, empannell-ed, sworn and charged to enquire in and for the body of the county of Henderson aforesaid, upon their oaths present, that, Stephen Snell, late of the county of Henderson aforesaid, on the 1st day of March,…

' William Cage and Marcus Cage were merchants and partners in trade in Lagrange, Tennessee. They constituted Bledsoe their .agent to purchase goods for them in Philadelphia. Wiliam Cage died about the middle of August, 1836. Before a knowledge of this event reached Bledsoe, he had purchased of Rigs, Aertson & Son, merchants and partners in Philadelphia, goods, wares and merchandise of the value of $425.

L. C. Trezevant instituted an action of covenant in the circuit court of Fayette county, on the 27th January, 1840, against A. McNeal, on an obligation in the following words: “$5,5Q0. “For value received, we promised to pay Lewis C. Trezevant five thousand five hundred dollars, on or before the 1st day of January, 1836, in current bank notes. Witness our hands and seals, this 1st day of January, 1836.

Robert I. Chester filed his petition for a mandamus against Hubbard, entry-taker of Haywood county, in the circuit court of Haywood county, on the 1st day of October, 1839, to compel the entry-taker to receive an entry upon land lying in said county of Haywood. Chester was the holder of a North Carolina land warrant, to the satisfaction of which, the vacant and unappropriated land lying south and west of. the congressional reservation line was subject.

Sackfield Maclin received for collection, notes against James D. Cage & Co. for the sum of $4,270 12, which were given to Wolsey .& Walsh, Bryan, Roadman & Heilin, Miller & Cooper, and Fosset & Jones, merchants of Philadelphia.

Thisaction of ejectment was instituted by EidridgeB. Held: that one executor, though he alone qualified, had no power to sell without the concurrence of the other executors. As to the second point; we contend that there has been no refusal, but only an omission or neglect to qualify.

A negro man, a slave, was committed to the custody of J. W. Fowler, sheriff and jailor of Shelby county, on the 24th October, 1837, and remained in his custody one hundred and ninety days. A negro woman was also committed to his custody on the 22d April, 1833, and remained in his custody thirty days. They made their escape, and on the 18th of May, 1838, they were, by virtue of a mittimus, committed to the custody of the sheriff and jailor of Carroll county, as runaways.

This motion against the sheriff of Madison county was tried before the Honorable J. Read, judge, at the April term, 1840, and judgment rendered for the defendants, from-which there was an appeal in error. Every fact in the record necessary to elucidate the principles involved in the decision of the court is fully set forth in the opinion.

Bryan, Roadman Heylin recovered a judgment against Vaught, Cowen & Emmerson for $5,325 39. Execution was issued thereupon, which came to the hands of Glass,[sheriff of Tip-ton county. Glass did not return the execution. For this delinquency a judgment was rendered against Glass and his securities, in favor of Bryan, Roadman & Heylin for the amount of the execution and damages thereupon.

Alexander Anderson recovered a judgment in the year 1828, in the county court of Green county, against George Brown, for the sum of $147 60 and costs. A Ji. fa. and alias Ji. fa. issued on this judgment to Richard M. Woods, sheriff of Green county.

The grand jury of the county of Knox, indicted John Fugate, at the November term,' 1840, of the circuit court for said county, of encouraging and promoting gaming.

The grand jury of Knox county, at the February term, 1841, of the circuit court for said county, indicted W. R. Caswell and Anderson Hill, for retailing spiritous liquors, contrary to the provisions of the act of 1837-8, ch. 120.

This action of ejectment was instituted in the circuit court of Sevier county, by Asa Delozier against Samuel Picketts, on'ithe 2Qth July, 1839. It was submitted to a jury at the April term, 1841, Judge R. M. Anderson, presiding, and under his charge a verdict returned for the plaintiff. A motion for a new trial being overruled, the defendant appealed in error from the judgment thereupon.

The grand jury of Knox county, at the February term, 1841, of the circuit court, Judge Scott presiding, returned an indictment against William K. Caswell and Anderson Hill, charging, that they “did vend and sell in less quantities than a quart, a certain kind of spiritous liquor, called wine, to one John Dameron, for a valuable consideration, contrary to the statute,” &c, The case was submitted to a jury at the same term, upon the plea of not guilty, and a verdict rendered…

William Rayle, a man of infamous character, who had been duly eonvictedbf high crimes, and who was charged with and believed to have been guilty of almost every description of misdemeanor, such as burning store houses, stables,, barns, stacks of grain, stealing farming utensils, hogsheads of tobacco and corn, stoning houses in the,night, sinking ferry boats, stoning peaceable citizens on the highway, shooting and poisoning- stock, and who had kept for a series of years the…

This action of ejectment was instituted in December, 1839, by-John Copps against B. Bullard, for the recovery of the possession of one hundred acres of land, lying in the county of Claiborne. — ■ It was submitted to a jury at the January term, 1841, of the circuit court of Claiborne, Judge Anderson presiding.

Andrew and Robert Crockett instituted this action of ejectment in the circuit court of Claiborne county, on the 9th day of April, 1829, against W. B. Campbell, A. Campbell, J. Campbell, W. P. Campbell, E. G. and A. Campbell, for the purpose of recovering lands lying in the county of Claiborne. After various continuances, the venue was changed and the trial of the case transferred to the county of Grainger,fin May, 1832.

At the April term, of the circuit court held for Sevier county,. 1840, the grand jury indicted Elijah Cagle and Betsy Boling for the offence of lewdness.

William R. Love, one of the partners of the firm of W. R., James & Preston Love, having made an affidavit before the clerk of the circuit court of Sevier county, that they were unable to bearthe expenses of the law-suit they were about to commence, and that they were justly entitled to the recovery of an amount within the jurisdiction of the circuit court, obtained a writ in covenant, against Micajah C. Rogers, on the 4th of August, 1838, in accordance with the provisions of…

Green Moore, chairman of the county court of Johnson county, by Brabson, attorney general, moved the circuit court of Johnson county, at the March term, 1840, for judgment against Miller, sheriff, and his securities for unpaid balance of the county taxes.

Alexander Dobkins was convicted in the circuit court of Claiborne county, at the September term, 1837, of “betting on ahorse race,” and sentenced to pay a fine of five dollars and costs of prosecution.

James Roach instituted an action of trespass guare clausum fregit in the circuit court of Knox county, on the 28th of May, 1840, against John Damron and George Arnold.

The 4th sect, of the IQth article of the amended constitution of the State of Tennessee, adopted in convention on the 30th of August, 1834, and by the voters in 1835, provides as follows: “New counties may be established by the legislature, to consist of not less than three hundred and fifty square miles, and which shall contain a population of four hundred and fifty qualified voters.

On the 21st day of January,-1839, Joab Hill, a justice of the peace for Campbell county, issued a warrant in favor of George W. Sharp against Thomas Wilhite, to answer the plaintiff in a plea of debt due by account. This warrant was returned before Matthew Douglass, a justice of. the peace in the same county, on the 26th. The parties appeared and plaintiff,. Sharp, proposed to prove the account by his own oath.

<p>1. To sustain a conviction for a felonious and premeditated assault “with an intent to kill and murder in the first degree” under the 53d section of the act of 1829, ch. 23, it must appear that the assault was of such a character, and made under such circumstances, that, had the death of the person assaulted, ensued, the assailant would have been guilty of murder in the first degree.</p> <p>2. To sustain a conviction for murder in the first degree, under the 3d section of the act of 1829, ch. 23, proof must be adduced to satisfy the mind that the death of the party slain was the ultimate result sought by the deliberate and premeditated will of the assailant. Dale vs. State, 10th Yerg. 551.</p> <p>3. The employment of a deadly weapon, such as an axe, whereby death is produced, although it implies malice at common law, does not imply that the act was done with such premeditation as to make it murder in the first degree under the statute.</p> <p>4. In criminal cases the supreme court will reverse and award new trials whenever in its judgment the verdict is not warranted by the proof. The rule, that the court will not disturb the verdict of a jury, unless a case of manifest rashness appear, is confined to civil cases.</p>

On the 13th day of October, 1841, in the county of Franklin, W. C. Roberts, agent of the branch of the bank of the State of Alabama, at Decatur, appeared before James Robinson, a justice of the peace of said county, and filed an affidavit as the agent of the said bank, for the purpose of getting an attachment against the effects of one John Berry.

At'the Juné term, of the circuit court of Wayne county, 1840, Saunders & Martin recovered a judgment against Gallaher & Alexander, for the sum of $851 14 and cost.

<p>cited, 3 Marsh. Ky. Rep. 176: 2 Yerg. 533: 7 Yerg. 436: 2 Sellon’s Pract. 134: 2 Ld. Ray. 1096: 6 Mod. 304: 16th Johnson, 119: do. 537: 13th Johnson, 547,529: 3 John. Cases, 74: 11 Wend. 32: 2 Burrow, 7: Mass. 477 : 5 Howl. &z. Ry. 615: 6 Cowen, 596.</p>

This motion was made by Childress against Raines, sheriff of Davidson county, at the September term of the circuit court of Davidson county, 1841, for an alleged insufficient return offi.fa. placed in his hands. Maney, presiding judge, rendered judgment against the defendant for the amount of the execution and damages. — ■ Raines appealed in error. The facts are stated in the opinion of the court.

<p>1. To sustain a conviction of a slave under the act of 1833, ch. 75, sec. 1, and the act of 1835, ch. 19, sec. 10, it must be alleged in the indictment, by distinct averment, and proved that the assault committed by the slave, with the intent to ravish, was on the body of a free white woman. An assault on a black woman, with intent to ravish, is not punished with death, as in such a case of assault on the body of a free white woman.</p> <p>2. A caption which does not state where the court was holden, at which the conviction was had, or that a grand jury, of good and lawful men, was empannel-led, is defective, and the judgment must be arrested, for either of these causes.</p>

This bill was filed in the chancery court at Winchester, on the 8th day of February, 1840, by Elizabeth Ewing, against Curie and others, for the purpose of obtainingaperpetual injunction against the sale of a slave by execution, Mrs. Ewing sold to Moore a slave for $1000, in December, 1838. Moore gave his note for the money. The parties to this contract were then resident in the State of Tennessee. Moore shortly afterwards removed to Alabama.

<p>1. In order to sustain a conviction of a slave under the act of 1835, ch. 19, for an assault and battery, with intent to commit murder in the first degree, it must be alleged in the indictment and proven on the trial that the person assaulted was a free white person.</p> <p>2. The name of the person assaulted furnishes no presumption that he was a free white person, neither does the (act that he was a witness in the case against the slave, nor that he was foreman in a mechanic’s shop.</p>

W. B. Johnson, attorney general of the 7th solicitorial district, presented, at the instance of Herring, prosecutor, a bill of indictment against Smith, to the grand jury of Montgomery county, at the September of the circuit court, 1840, for said county! This bill of indictment charges, 1.

<p>1. Hunt & Co. by the terras of a partnershipagreement, were to furnish the capital. Benson agreed to conduct the establishment, to be liable for half the expenses and losses, and pay interest on half the capital furnished from the commencement to the termination, when the profits were to be equally divided: Held, under this agrément, 1st. That until the debts of the partnership were paid and the partnership settled, each partner had a lien on all the partnership property as his indemnity against the joint debts and his security for the ultimate balance due him. 2nd. That neither partner could without the consent of his co-partner or co-partners withdraw any portion of the funds of the concern for pvivate purposes, (personal expencea excepted) or acquire an exclusive right to any portion of the stock until the debts were paid and the partnership settled.</p> <p>2. Where real estate is purchased for partnership purposes, and on partnership account, equity deems it partnership property, no matter in whose name the pur- I chase is made, or whether the legal title be in one or in all.</p> <p>3. Where real estate is purchased and paid for with partnership funds, such payment will be decisive, in the absence of countervailing circumstances that it was intended to be held as partnership property.</p> <p>4. If one partner withdraw the funds of the firm under such circumstances of consent, or knowledge and acquiesenee on the part of the co-partners as to amount to a contract or loan, the property so purchased will not belong to the firm, but will be the private estate of the person so purchasing. It is otherwise if the circumstances do not amount to a case of contractor loan, although the partner may purchase for his own use and take title in his own name.</p> <p>5. Where a partner withdraws partnership fund and appropriates it to private purposes, such as the purchase of real estate, and makes in the books of the concern full and fair entries thereof, which do hot disguise the transaction and furnish to the co-partner full information of the true state of the facts, the consent of such co-partner, if he have access to the boQks, to the withdrawal and appropriation of the funds, will be implied unless he make objection at the time. His consent, however, could not be implied if he did not have access to the books, as where he resided a thousand miles from where the books were kept and the transaction took place.</p>

This case was tried at the September term, 1841, in the circuit court of Maury county, Judge Dillahunty presiding, and resulted in a verdict for the defendants, and judgment in accordance therewith. The President and Directors of the Company appealed in error. All the material facts in the cause, are set forth in the opinion of the court.

This bill was filed in the chancery court at Franklin, on the 21st day of February, 1840, by M. F. Baldwin, by her next friend, Dickerson, against her husband H. Baldwin, Harrison, sheriff of Williamson county, and against Campbell, Parks, and others, who had recovered judgments at law, against H. Baldwin.

On the 8th day of February, 1838, John Grigsby instituted an action of trespass vi et armis, against W. Moffat, J. Moffat and J. Taylor, in the circuit court of Lincoln county. The damages were laid at $10,000. The plaintiff set forth as his cause of action that the defendants seized him in bed in the county of Lincoln, on the 6th day of February, 1840, took him by force to the forest, stripped him naked, and scourged him severely with rods.

This is an action of covenant which was instituted in the circuit court of Giles, by Carroll, governor, for the use of Foley, against Goodrum and others, who were the securities of Thomas C. Porter, former sheriff of that county. The bond on which the suit was brought, was made payable to William Carroll,'governor, and his successors in office.

To permit proof to be received under the plea of non-asaumpsit, that an endorse-tnent is not genuine, is in violation of the act of 1819, ch. 42, sec. 1, unless such flea he accompanied with an affidavit of the truth thereof.

<p>1. To sustain a conviction under the act of 1829, ch. 23, sec. 33, it is sufficient if the indictment charge the defendant tvith having kept the counterfeit bank note with a “fraudulent” intent to pass it. It is not necessary that the indictment should charge that it was kept with a felonious intent.</p> <p>2. Where the biil of exceptions did not show, that the witnesses whose statements were set out were sworn, in the absence of proof to the contrary, it will be presumed, in favor of a correct administration of justice, that they were sworn.</p> <p>3. Where the proof showed, that the defendant passed a bank note; that the note was fictitious; that he gave different accounts as to the person from whom he received it, and did not attempt upon trial to explain: Held, that such proof sustained a verdict of guilty.</p> <p>4. Where the circuit judge charged the jury, that if the note was fictitious, and the prisoner knew it, and passed it in absolute payment of a debt, this would amount to a passing under the 31st sec., although at the time of passing it be might havo agreed to take it back if it proved not to be genuine: Held, that this charge was correct, tho offence consisting in the passing it with the knowledge that it was spurious.</p> <p>5. The question as to defendant’s knowledge of the spuriousness of the bank note,isa question fortbejury.</p>

<p>1. A partner has not the right to bind the firm by any contract not for tba benefit of the firm, and legitimately within the line of its operations.</p> <p>2. An endorsement of the firm name by one of the members of the firm, for the accommodation of a third person, does not bind the other members, unless the note should get into the hands of a holder for valuable consideration, without notice.</p>

<p>1. Incases of conviction, in courts of record, for gross misdemeanors, it isa discretionary judgment at common law, to require sureties for good behaviour.</p> <p>2. A single act of gaming, unaccompanied with circumstances of aggravation, is not such a misdemeanor as will authorise a court to require sureties for good behaviour,</p> <p>3. Where a judge required a bond, that the defendant would not gamble in twelve months':. Held, that no such special bond is authorised by law. The court (if the case had been, such as authorised the exercise of the power) should have required a general bond for good behaviour.</p>

In the yearl837-8, the legislature passed a law establishing a State bank with branches. One of these branches was located at Columbia.

This bill was filed in the chancery court at Livingston, Overton county. It was heard on bill, answer, replication and proof, before Ridley, chancellor, at the September term, 1841, and the slave claimed by the complainant decreed to be delivered to complainant. Defendant appealed. The facts of this case are stated in the opinion of the court.

<p>.This is an appeal in error from the October term, 1841, of the circuit court of Robertson county.</p> <p>cited, 10 John. 447 : 8 John. 455,</p>

In October, 1839, Simpson & Choat instituted an action of as-sumpsit in the circuit court of Wayne county, against R. Altom and C. Forsythe, administrator and administratrix of John For-sythe, deceased, and against Walker, Young & Polk, surviving partners of the firm of Forsythe, Walker & Go. The declaration showed, that the contract sued on, was a joint assumption of John Forsythe, deceased, and of Walker and the others, surviving partners of John Forsythe.

This action was brought by Vick against Bridges in the circuit court of Wilson county, on the 11th day of June, 1839. Plaintiff declared an assumpsit on a special contract of hiring, and the defendant pleaded non-assumpsit, and other pleas which need not be set out as the case did not turn upon them. Issue was, joined on the plea of non-assumpsit.

This action on the case, was tried at the August term, 1841, of the circuit court of Maury county, Judge Dillahunty presiding, and resulted in a verdict of one hundred and fifty dollars for the plaintiffs, and judgment thereupon. The defendant, Webster, appealed in error. cited, 3 Kent, 439: Angelí on water courses, 11, 12: 3 Rawle, 84: 17 John. 306: 6 East, 206: 1 Sim. &Stu. 190: 4 Dallas: 2 Conn. 584: 12 Wend. 330.

Leonard C. Temple was appointed administrator of Elizabeth Tqmple, by the county court of Bedford, on the 1st day of February, 1836, on which day he executed the usual bond for the administration of the estate, with Israel Fonville, Asa Fonville, Jas. W. Jones and Samuel Escue, sureties. From this bond the Fonvilles were released by the county court at the April session, 1837; and thereupon a new bond was executed, with Samuel Escue, J. A. Blakemore, Wm.

Worsham recovered a judgment before a justice of the peace in-Giles county, against Parish; Harwell stayed the judgment. An execution issued at the expiration of the stay. Harwell, on the 23d day of April, 1840, obtained from two justices of the peace an order for writs of certiorari and supersedeas, on the ground that the execution was satisfied and discharged. The writs were issued, and the cause was transferred to the circuit court of Giles county.

<p>1. The power of a partner to bind his co-partner ceases on the dissolution of the firm,</p> <p>2. After the dissolution of a partnership, no individual of the dissolved firm has a right to bind another member by endorsing the firm name, though it be for the purpose of renewing the existing.notes of the dissolved firm.</p> <p>3. When a firm is dissolved, each member of the dissolved firm, if his power be not restricted by the terms of the article of dissolution, may acknowledge in the name of the firm all just accounts, not barred by the statute of limitations, sign and receive receipts for monies received and paid in the name of the firm, and the firm will be bound thereby.</p> <p>4. Where the members of a dissolved firm, in the publication of notice of their dissolution, used the following language, “Either of the parties are authorised to use the name of the firm in liquidation, only, of past businessHeld, that this did not authorise the parties to renew a note given by the firm for a partnership debt, nor confer upon any of the parties powers which they did not possess by law.</p>

This bill was filed in the chancery court at Franklin, by E. W. Napier, against John Catron, F. Catron and G. F. Napier, for the purpose of obtaining a decree for the sale of certain real estate mortgaged to him. J. Catron was the original owner of the real estate, and sold and conveyed to F. Catron and G. F. Napier; partners, reserving a lien for the payment of the purchase money.

James Read, senior, died in the county of S umner, in 1838, possessed of personal estate, and at the September term of the county court of that county, Ralston was appointed administrator of his ©state. He gave bond payable to Newton Cannon, governor of the State, and his successors in office, in the penalty of $17,500.

This case was argued by ML Long for the plaintiffin error, and by the Attorney General for the State, and the following authorities cited and discussed: Woolwich on Ways, 4 Law Lib. 9: 2 Starkie, page 666: 3 Starkie, Title Prescription: 11 East, 56: 7 Wheaton, 59: Cro. Ch. 267: Roscoe, 452: 1 Russell, 274, 286: 2 Hild. Ab. of American Law of real estate, Tit.Easement: 2 Mason, 313.

This bill was filed in the chancery court at Columbia, and came on for final hearing at the September term, 1841, on the bill, answer, replication and proof.

<p>cited, 2 John. Ch. R. 208: 2 Story, 631: Clancy, 442: 2 Atk. 419: lOVes. 90: 2 Kent, 141: Clancy, 137-8-9: 1 and 2 Law Lib. 141, 143: 12 Ves. 437:. 2 Atk. 550: 2 Cruise, 271: 5 John. Ch. R. 202 : 3 Co-wen, 590: 1 Yerg. 413: 10 Yerg. 190.</p>

This action was instituted in the circuit court of Sumner county, and tried before Judge Maney, at the February term, 18-11. A verdict was rendered in favor of the plaintiff, and the judgment arrested. The~plaintiff appealed in error.

Hadley and wife filed this bill in the chancery court at Franklin, on the 5th day of March, 1840, against the president and directors of the Harpeth turnpike company, for the purpose of enjoining the defendants from the commission of a trespass, by the construction of a turnpike road through their land, under the act of 1837-8, ch. 103, page 141 to 148.

Ewing and others, surviving partners of Leigh, Maddux & Co., instituted this action of assumpsit, in the circuit court of Sumner county, against P. W. Martin, the drawer of the bill of exchange on Charles W. Allen, of Mississippi, for the sum of $380 18, which was protested for non-acceptance. It was tried before Judge Ma-ney, at the October term, 1841, and averdict and judgment rendered in favor of the plaintiffs.

This action of ejectment was instituted in the circuit court of Robertson county, by Conrad against Washington, and was tried at the June term, 1841, before Judge Martin, and resulted in a verdict for the plaintiff. A motion for a new trial was made, overruled, and judgment rendered. Defendant appealed. The facts of the case, and charge of the circuit judge, are fully stated in the opinion of the court. cited, 2 Leigh’s N. P. 928: 28 Eng.

<p>Ah executor requested a creditor should give the estate indulgence, till the debt the estate owed for land, should be paid: Held,</p> <p>1. No particular form of demand is required by the proviso of the fourth section of the act of 1789, ch. 23, and such demand may be inferred from the fact, that a special request for indulgence has been made.</p> <p>2. That the request for indulgence till the land.should be paid for, is sufficiently definite, and that the statute would commence running from the time the land was paid for, and not before that time.</p> <p>3. If an executor pay a debt clearly barred by the statute of limitations, is he guilty of a devastaviti</p> <p>4. Where an executor is sought to be charged with a devastavit for the payment of a debt which was clearly just, and the collection of which was delayed till the time specified in the statute of 1789, ch. 23, had elapsed, such strict proof will not be required of the executor, that the debt was delayed by his request, as would be required of a creditor seeking to charge the estate.</p> <p>5. Ledbetter, having made his will, devising his estate to his daughter Melissa, died. Melissa not having received the estate from the executors of her father's will, died, leaving children: Held, that such children could claim only as the dis-tributees of their mother, and could not demand a distribution from any person save the administrator of the deceased mother. Thurman vs. Shelton, 10 Yerg. Rep. 385.</p>

Perry instituted an action of trespass, vi et armis, in the circuit court of Sumner county, against Baker, A. and James Johnson, on the 31st day of October, 1839. The plaintiff set forth as his cause of action, an assault upon his slave by the defendants, by which the leg or knee of the said slave was broken, and he thereby lost his service, paid large medical bills, &c. The defendants pleaded not guilty, and issue was joined thereupon.

<p>A sheriff made return on an execution that he had retained the money collected, to discharge the damages he had sustained by judgment, against which the plaintiff in the execution had given him a bond of indemnity: Held, that this was an insufficient return, and subjected the sheriff and his securities to a motion under the act of 1837-8, ch. 190.</p>

<p>1. Tho rule, caveat emptor, applies in general to sales by execution; but more emphatically as to the title to the property sold. The purchaser must risk the title.</p> <p>2.' Where a plain mistake is made by the sheriff, the defendant in the execution and tho purchaser, as to the real estate levied on and sold, and tho mistake was discovered before the money was. paid over to the plaintiff in the execution: Held, that the purchaser was entitled to relief in chancery.</p> <p>3. A court of chancery is the more appropriate forum for the correction of such errors.</p> <p>4. Judgments in the Federal court aro embraced in the'7th and 8th sections of the act of 1831, ch. 90, regulating the lien of judgments; and, therefore, judgments obtained in tho Federal court at Kashville, against Baldwin and Anderson, residing in Williamson county, which were not registered, lost their priority to judgments rendered against them in Williamson.</p> <p>5. A. had a judgment against the members of a partnership fbr the individual debt of a partner; B. had a judgment against the partnership: Held, that both judgments bound tho separate real estate of each partner without priority.</p>

This bill was filed in the chancery court at Pulaski, in February, 1837, by the heirs of the late Judge Haywood, against David Moore, to obtain a decree, among other things for a tract of land containing three hundred acres, lying in Giles county, and in the possession of Moore. On the 29th day of June, in the year 1808, John Haywood made a deed to his daughter Harriet Haywood.

William Hughes married Mariah, the daughter of O. Winn, in the county of Lunenburgh, State of Virginia, in the year 1815» In 1817, being ábout to remove to the State of Tennessee, Winn placed in the hands of Hughes and wife a slave named Jack, the subject of the present controversy.

<p>Taylor made a sealed instrument, by the terms of which he gave to his son certain slaves. It was witnessed and deposited in his trunk, with a declaration, that it should take effect after his death, and not before. Itthere remained till his death : Held,</p> <p>1st. That this instrument could not be set up as a deed of gift, delivery being essential to constitute a deed.</p> <p>2nd. That not having been offered and proven in the county court as a testamentary paper, it could not be regarded as such. — Under such circumstances, the court will permit the cause to continue open for further decree in the chancery court, i f the parties choose to attempt to establish the paper writing as a will.</p>