Volume 22 — Tennessee Reports

The grand jury at the May term, 184Í, of the circuit court of Henry county, returned a presentment against John R. Campbell; which charged, that Campbell, on the 9th day of April, 1841, in the county of Henry, did unlawfully vend, sell, and retail spirituous liquors, in less quantities than a quart, and by the quart and in larger quantities, intended to be drank on the premises where sold, contrary to statute, &c. The defendant pleaded not guilty, and was put upon his. trial…

J. C. Rudisil, a justice of the peace for the county of Shelby, issued a warrant at the instance of the Mayor and Aider-men of the town of Raleigh, against James Dougherty, to recover a penalty inflicted by a Corporation ordinance upon those who were guilty of breaches of the peace within the limits of the Corporation.

Spencer G. Barton was indicted in the circuit court of Gibson county for murder. The case was submitted to a jury and he was acquitted upon the plea of not guilty, at the November term, 1839, and judgment rendered against the State for costs.

<p>2, The possessed of land at the time ofa sale by decree in Chancery, is a quasi tenant of the purchaser, and is estopped from disputing his title.</p> <p>2. In an action of ejectment by the purchaser at a Chancery sale, such purchaser must prove a regular chain of title to himself, or a decree and sale, and possession by defendant at the time of the sale.</p>

Webb executed and delivered his promissory note for $333 to Lamb. Lamb sold the note to Kimbroe, and endorsed it in blank and delivered it to him, with some understanding in reference to filling up the blank endorsement. Kimbroe filled up the endorsement, .waiving demand and notice. When the note matured he made no demand, and gave no notice, and Webb having failed to pay it, he sued Lamb in debt in the circuit court of Henry county.

Cherry instituted an action on the case in the circuit court of Haywood comity, against Smith and others, and declared on. an agreement which was in the following words: “We agree to ship and forward to Daniel Cherry, Esq., Cherryville, Tennessee, a number of barrels of salt, not to exceed one hundred and fifty, when called on, at the rates of fifty cents per bushel, or fifty pounds re-weighed at the Mississippi, he, the said Cherry, giving his note negotiable and payable in…

At the September term, 1841, of the circuit court of Hardin county, the grand jury returned a true bill against Baity Brooks, for the murder of John'Lowry, by shooting said Lowry with a rifle gun.. The indictment was for murder in the usual common law form. The defendant pleaded not guilty, and the cause was submitted to a jury at the February term, 1842. Judge Totten presiding.

The President and Directors of the Farmers’ and Merchants’ Bank of Memphis, issued a writ in assumpsit on a promissory note against Daniel Johnson and William D. Johnson, on the 12th day of September, 1840. It was made returnable on the 8d Monday in September, that day being the day of the commencement of the September term of the circuit court of Fayette county. It was executed upon W. D. Johnson, and returned not found as to D. Johnson.

This action of trover was instituted in the circuit court of Weakley county, by Lewis against Thomas to recover the value of a slave. The defendant pleaded not guilty, issue was thereupon taken, and the cause submitted to a jury at the June term, 1841. A judgment was rendered in favor of the plaintiff for the value of the slave, and the defendant appealed.

This bill was filed at Dresden by Foust, a millwright, against Wilson an absconding debtor, for whom he had built grist and saw mills, and Jacobus and Garthwaite, judgment creditors of Wilson, who had purchased the mills and land upon which they were situated at execution sale.

Herndon recovered a judgment before Wilkerson, a justice of the peace for Fayette county, against Jesse E. Crook. Upon this judgment, execution was issued and placed in the hands of Hamblet, a constable of said county. Herndon gave Hamblet a bond of indemnity, and required him to levy upon, and sell a certain slave in the possession of said Jesse E. Crook. Herndon appointed an agent, who went with the constable to show him the slave.

<p>cited act of 1835, ch. 15, sec. 2: 1 Humphreys, Tarver vs. Mabry, 94.</p>

<p>1. It is a fundamental principle of social, natural and municipal law, that each individual shall so use his own property as not to injure the public health.</p> <p>2. The act of 1830, ch. 79, sec. 1, directed that the owners of mills should cut down and remove standing or decayed timber in their mill ponds, west of the Tennessee river, and made such owners indictable if they failed. And the act of 1832, ch. 79, authorized defendant Gainer, by name, to build a dam without cutting down and removing the timber in his pond: Held, that the act of 1832 only exempted the defendant from the penalty of the act of 1830, and left him liable as other persons to indictment, if his dam created a nuisance.</p>

This bill was filed in the chancery court at Sommerville, by Sarah Dillard, an infant, by her next friend against Gaston Dillard, for the purpose of recovering, a slave. In 1827, in the State of North Carolina, Merritt Dillard, as executor of Josiah Dillard, deceased, sold the slave, Caroline, in controversy, at auction, and she was bid off by William J. Dillard.

This action of debt was instituted in the circuit court of Madison county, by Fogg, executor, against Dennis. The defendant pleaded non est factum, and issue was taken thereupon. A verdict and judgment was rendered in favor of the plaintiff, from which the defendant appealed in error. cited Peake N. P. 20r 1 Phillips 422: McNally 418: 2 Starkie 656: Peake Evid. 150, 154.

At the November term, 1840, of the circuit court of Gibson county, it appears from the record that the sheriff returned his venire facias executed upon twenty-four good and lawful men, from which the court, in the mode directed by the statutes, selected and empanneled twelve men as a grand jury for the term, who were accordingly sworn and charged. This jury returned a true bill of indictment against defendant Pybos, for retailing spirituous liquors.

Vaden deposited his crop of cotton in the hands of H. S. Morgan & Co., commission and forwarding merchants, in Memphis, to be shipped or held subject to his order. H. S. Morgan & Co. sold the cotton and appropriated the proceeds.

Woods, Stacker & Co., instituted an action on the case in the circuit court of Shelby county, against Porter, to recover the value of certain castings delivered to him to be used in the manufacture of ploughs. The plaintiff declared in assumpsit, and the defendant pleaded non assumpsit, and issue was taken thereupon, and the cause submitted to a jury at the February term, 184-1, Dunlap, judge, presiding.

This bill was filed in the chancery court at Trenton, on the 28th of October, 1841, and was heard before chancellor Mc-Cambell, at the March term, 1842, on the bill and demurrer thereto, and tbe demurrer sustained, the bill dismissed and judgment rendered against tbe complainant and securities in the injunction bond. Complainant appealed. It is an ancient jurisdiction of the court of equity to relieve against usury.

A venditioni exponas relates to the levy of theft, fa. upon, which it issued, and has priority of satisfaction over process concurrent with such venditioni exponas in its test and return day.

This bill was filed in the chancery court at Huntingdon, on the 18th day of April, 1839, by Wright against Ray, McLemore and Crawford, for the purpose of enjoining the enforcement of a judgment against complainant. It was tried at the February term, 1842, by chancellor Mc-Qambell, and the bfil dismissed. The complainant appealed. See Gray vs. Wilson, Meigs, 397: Wright vs. McLemore, 10 Yerg. 235: Cooke, 325 : 5 Yerg. 420 : 3 Hay. 144: 3 Yerg. 366: 2 Story, 187.

Madison Brooks was indicted at the September term, 1841, of tbc circuit court of Hardin county, for the murder of John Lowry, by shooting him with a rifle gun. The defendant pleaded not guilty to the indictment, and issue was taken thereupon.

<p>The facts are fully stated in the opinion of the court.</p> <p>cited Chitty on Bills, 8th Ed. p. 1, 2, 054: 5 Yerg. 435: 1 Cow. 691: 3 Hayw. 106: 3 East Rep. 482: 2 Burrow, 669: 4 Yerg. 194: 2 Term. 105: Chitty on Bills, 258-9, 261: 3 Yerg. 330: Chitty on Con. 14: 1 Saunders on PI. & Ev. 126: act of 1801, ch. 6, sec. 54: 1 Ten. 384: 5 Yerg. 434.</p>

The Planters’ Bank recovered judgment against Chalmers and others, in the circuit court of Madison county, for the sum of $2547, on the 16th day of April, 1839. Chalmers appealed to the supreme court, and the judgment was there affirmed on the 16th day of April, 1840.

<p>1. A note or obligation executed by a feme covert, creates no cause of action, and where the declaration shews this fact, such declaration is fiad on general demurrer, and the defect may betaken advantage of in arrest of judgment.</p> <p>2. Where however, a feme sole executed aboncl or note, and afterwards marries and is sued alone, a plea in abatement for the non-joinder of the husband is the proper mode of defence.</p>

<p>The declaration sets forth, that defendant and wife Mary made a note to plaintiff: Held, that this was not an allegation, that they were man and wife at the time of the execution of such note, and consequently no error. If the fact were so, the declaration not showing it, it should have been pleaded.</p>

This action on the case against Smith, the clerk of the county court of Tipton, was instituted by Barnes, a mortgagee, in the circuit court of Tipton county, to recover damages of the said clerk, Smith, for neglect of duty, in making out an incorrect certificate of probate, by which he lost a lien upon certain personal estate.

<p>1. A verdict will be sustained, if its sense or legal effect is a response to thepleadings.</p> <p>2. To debt on bill single, the defendant pleaded in short, m2 debet, payment and set off, and usury in form. The plaintiff did not reply, to the pleas, in short, and replied on oath to the plea of usury. The jury found that the defendant had not paid the debt in the declaration: Held, that the verdict could not be sustained.</p>

Rawlings, surviving partner, placed executions issued by justices of the peace in the hands of Teague, deputy of Snell, sheriff of Henderson county. Teague collected money on some of the-executions which he failed to pay over, and failed to return others. Rawlings made a motion against Snell, the principal sheriff and his securities, and recovered judgment against them in the circuit court of Henderson county.

On the 2nd February, 1837, Isaac Rawlings applied to the county court by petition to emancipate William Isaac Rawlings, a mulatto boy, the son of a slave of said Isaac, whom he had always recognized as his son, and as a freeman, and born whilst the mother was in possession of petitioner.

This bill was filed in the chancery court at Sommerville, by Whitmore against Parks and Jackson in his own right, and as the administrator of Trotter, deceased, praying a decree for the delivery of certain slaves and for an account of hire, or that their value be paid to him or other relief. Whitmore & Trotter were partners in merchandize. They dissolved and divided the effects of the partnership between them.

Sanderlin sued Dandridgeinthe circuit court of Shelby county, on a covenant for the payment of II000, half to be paid by a specified time in “good cash notes, and the other half in lumber of merchantable quality, at specified prices,” and the breach alledged, was the non-payment of the cash notes, and non-de-. livery of the lumber. The defendant pleaded covenants performed, and two special pleas, which were demurred to and not disposed of.

Averil and Cheairs, merchants and partners in trade, suing for the use of Joseph Cheairs, instituted an action of trespass on the case in the circuit court of Hardeman county, on the 3rd day of September, 1840, against Kenneth C. Slaten. The plaintiff declared for goods sold and delivered and cash lent and advanced to defendant.

McPherson sued Haley in the circuit court of Perry in case for slanderous words spoken. McPherson swore to an account under the book debtlaw againstHaley before ajustice, and judgment was rendered in favor of McPherson and against defendant Haley.

At the June term of the circuit court for Shelby county, 1827, Kimbrough recovered a judgment against Jesse Benton for the sum of 14170. Held: these were equitable circumstances, which could not be noticed in action of ejectment — that the court could not look beyond the judgment, execution, levy, sale and coroner’s deed in an action at law. See Kimbrough vs. Benton, in appendix.

This bill was filed in chancery at Sommerville, by Ann Smith by her next friend, against her husband Thomas B. Smith and Thomas J. Greer, a judgment creditor of her said husband, for the purpose°of restraining by injunction the sale of a slave which her bill alledged was secured to her and her children by the will of her father, and a deed of settlement made by her husband after marriage. The facts of the case are detailed in the opinion of the court.

This action of assumpsit was instituted in the circuit court of Fayette county by Wyatt, the last endorser of a bill of exchange against McNeil, a prior endorser. It was submitted to a jury on the plea of nonassumpsit at the January term of 1842, Dunlap, judge, presiding. The jury rendered a verdict in fa-vorof the plaintiff for the sum of $2,288 76 damages. The defendant moved the court for a new trial.

<p>1. The well settled rule in an action of ejectment is, that the plaintiff must make out a connected legal title, and show he has an estate and the present right of possession.</p> <p>2: To this rule there is one exception. A sheriff's deed, sustained by judgment, execution, and sale, will authorize a verdict against the execution debtor in possession at the time of levy and sale; and this is grounded upon the presumption, thatthe debtor had a legal estate subject to levy and sale.</p> <p>See Kimbrough vs. Benton — Ante, p, 110.</p>

The facts of this case, as ascertained from the bill and answer, are as follows: Giddens on the 29th day of October, 1840, made a bet with Lea and Calloway, that the majority of W. H. Harrison over M. Van Burén candidates for the chief magistracy of the United States, would not exceed two thousand votes in East Tennessee.

Jordan & Patton instituted an action of assumpsit in the Circuit Court of Roane county, on the 6th January, • 1841, against John Brown. The plaintiff declared for medical services rendered to the wife of defendant at his request. The defendant pleaded non-assumpsit, and the case 'was submitted to a jury at the October term, 1841. Ed. Scott, J. presiding.

This is an appeal in error from the circuit court of Cocke county. All the material facts are stated in the opinion of the court.

Hickman, a resident oí* the State of Virginia, owed Green, a resident of Sullivan county, Tennessee, three hundred and twenty-six dollars and fifty cents. Hickman had land lying in Sullivan county.

William L. Wilson died in Mississippi, and James Caruth-ers, in that State, administered on his estate. At the April session of the county court of Washington county, L andón C. Hoss obtained letters of administration upon the estate of deceased. At the May session of the said court, David J. Wilson presented a petition to the county court, praying that the letters granted to L. C. Hoss be recalled and himself appointed instead of him.

<p>A Statement in a petition for a certiorari by a defendant, that he appeared at the time and place cited; and that the officer returned the warraht after sun down on the day he was cited, and judgment was rendered against him without his knowledge, and that he was not informed of said return and judgment until after the time allowed by law for appealing had expired, is a sufficient reason for not having appealed.</p>

This action of detinue was tried before judge Keith and a jury of Bradley county, at the August term, 1841, on the plea of not guilty, and the statute of limitations. A verdict and judgment were rendered for the plaintiff McCarty, from which an appeal in error was prosecuted by Morgan.

Moss & Jackson stated in a petition for a writ of certiorari, that they, merchants and partners in the county of McMinn, sold and delivered coffee to Collins, a resident of Rhea county, of the'value of $32. That said sum being due, they verified the said account by affidavit and had it authenticated according to the act of 1819, ch. 25, sec. 1, and sent it to their agent Bean, a constable in the county of Rhea for suit.

This is a supplemental bill filed at Tazewell, in June 1838, by Whitesides against Lafferty, for an account. The cause was heard at the December term, 1840, on bill, answer and replication, before chancellor Williams. The bill was dismissed, and complainant appealed. All'the material allegations of bill and answer are found in the opinion of the court.

Johnson brought an action of trover against Billingsley in the circuit court of Bledsoe county, for nineteen head of hogs. It was tried at the November term.. 1841, before judge Keith, on the plea of not guilty. It appeared that Bridgman had recovered a judgment against Mooneyham for the sum of $43 15 on the 18th October, 1839, before Kirkland, a justice of the peace of Bledsoe county. Fi. fa. issued on the 10th April, 1840.

This action on the case was instituted in the circuit court of Bradley county by Gasaway against Smith, on the 30th day of August, 1839. The declaration sets forth as ground of action a malicious prosecution of the plaintiff by the defendant for larceny. The defendant pleaded not guilty and issue was joined thereupon. At the December term, 1840, an application was made by the defendant to change the venue.

Jeremiah Jones resided at the passage of the act of 1837-8, ch. 2, on thé southeast quarter of section 9, range 2, township 1, in the Ocoee district. He had made improvements on this quarter section, and after the opening of the office for the reception of entries, he entered it by virtue of the fifth section of the act. He had also made, prior to the passage of the act, improvements of a valuable character on the quarter section adjoining the one on which he resided.

On the 16th July, 1886, Joseph Noe bound himself by written contract, to deliver to Eli Hodges one hundred hogs, each to weigh two hundred pounds of pork gross weight, for the sum of 13 75 per hundred. The money was to be paid when the hogs should be delivered. No time or place was specified in the writing at which the hogs should be delivered. The parties resided in the county of Grainger.

<p>A. Bvoylés made upon good consideration a covenant, that the heirs of Reuben Broyles should participate equally with his own children in the distribution of his estate at his death, and that he would make a will to that effect: Held, that this ivas a covenant which was enforceable in a court of chancery; and should the covenantor fail to make such a will, the court would direct a distribution of the estate in accordance with the terms of the covenant; or if during* his life he manifested a determined purpose to defeat his covenant by a sale or removal of the estate stipulated to be distributed, the court would require of the covenantor sureties for the fulfilment of the covenant.</p>

<p>A court of chancery has no power to correct the taxation of costs by a court of íavr. A court of law may order a retaxation of costs if proper; and if necessary may award a supersedeas to stay the collection of a bill of cost incorrectly taxed.</p>

This is an appeal in the' nature of a writ of error from the judgment of the circuit court of Hawkins county, rendered at the May term, 1842, judge Lucky, presiding. All the material facts in the record are set forth in the opinion of the court.

This bill was filed in the chancery court at Cleveland, and came on to be heard before chancellor Ridley, on the bill, answer, replication and proof, at the March term, 1842. He decided in favor of the complainant, from which the defendant appealed. .

This action of ejectment was instituted in the circuit court of Monroe county on the 6th of May, 1840, by Cannon against Marshall for the recovery of lot No. 9, in the town of Madison-ville. Greenway was permitted to defend jointly with Marshall. It was submitted to a jury, Scott, judge, presiding, at the January term, 1842.

This bill was filed in the chancery court at Dandridge by Grannis, White & Co., and others, for the purpose of .having a decree declaring certain deeds of conveyance of lands, slaves and merchandize made by Smith to Carter & Leeper, his brothers-in-law void, and subjecting the said property to the satisfaction of certain judgments which complainants had re-covered against the defendant, Smith, and which are unsatisfied.

<p>X. Every thing necessary to the full enjoyment of a right passes with the purchase of such right, for otherwise the very object for which it was purchased is defeated.</p> <p>2. Cloud conveyed by deed to Wall & Co. the ground on which the abutment of a dam stood, with all and singular the rights and privileges thereto belonging: Held, that Cloud conveyed not only the ground on which the abutment stood, but also the entire and exclusive use of all the water power created by the erection of the dam, it being necessary to the enjoyment of the property purchased and appertenant thereto.</p> <p>3. When loss of health, loss of trade, destruction of the means of subsistence or permanent injury to property may or will ensue from the wrongful act or eviction of an individual, courts of equity will interfere by injunction, and if the legal right is doubtful, the court will direct it to be settled by an issue at law.</p>

This bill was filed in the chancery court at Tazewell, on the 18th day of September, 1839, and was tried on bill, answer, replication and proof at the June term, 1841, before chancellor Williams, and the bill dismissed. The complainants appealed.

At the November term, 1840, of the circuit court of Johnson county, Moore, chairman of the county court of Johnson county, by Brabson, attorney general, renewed a motion against the sheriff of Johnson county, Miller and his securities, for unpaid balance of county taxes; Lucky, judge of the first circuit, presiding. The defendant demanded a jury under the provisions of the act of 1835, ch. 15, sec. 14, (N. & C. 624,) and a jury was ordered to be empannelled accordingly.

This bill was filed in the chancery court at Tazewell, in the county of Claiborne, on the 14th day of October, 1836. It was to have an account of monies collected under an agency created by deed to sell land and receive the consideration money therefor. The intestate of complainants instituted a suit in the federal court for the purpose of getting an account.

The grand jury of Claiborne county, at the September term, 1840, at the instance of Bryant Baker, prosecutor, indicted Levi Britain for lewdness. ’ This indictment charged that on the 1st day of August, 1840, and on divers other days, in the county of Claiborne, “Levi Britain, was and still is the owner of certain slaves, and was hound toi have and keep said slaves so clad and covered, as to prevent those parts of the persons of said slaves, as by the rules of decency should…

This bill was filed by Thomas Whiteside and others, in the chancery court at Tazewell, against William Rayle, praying for the correction of a bill of costs in a suit at law between the defendant and complainants, erroneously taxed. The defendant demurred to the bill, and the chancellor sustained the demurrer and dismissed the bill. The complainants appealed to the supreme court.

This is an appeal in the nature of a writ of error from the judgment of the circuit court of Claiborne county, at the May term, 1842, judge R. Anderson presiding, rendered in favor of Bullard against Lewis, as surety in a prosecution bond. The suit was instituted by Hickland in the circuit court of Claiborne against Lewis, and Hickland was cast and the cost amounted to $78 68J. An execution was issued and returned by the sheriff of Claiborne county nulla bona.

On the 14th day of September, 1S39, D. Bowman instituted an action of debt in the circuit court of Washington county, against W. Crouch, Thomas B. Emmerson, D. W. Carter and James H. Jones. This writ was executed on them. At the October term, 1839, the plaintiff filed his declaration in debt on anote signed “Crouch & Emmerson,” and “Carter & Jones,” binding them to pay to Bowman the sum of two hundred and fifty-five dollars.

About the year 1828 Sarah Crawford became a widow by the death of her husband. Shortly thereafter she removed from the residence of her deceased husband to the residence of her father, carrying with her five children, three sons and two daughters. She resided with her father with her children some ten or fifteen years; they dwelt in the same house and eat at the same table.

George W. Rose sued out his warrant on the 21st day of ■ September, 1839, in the county of Claiborne, against Robert B. Lane.

<p>A court of equity will not take jurisdiction for the purpose of restraining' the enforcement ofajudgmentatlaw, and setting off against such judgment the damages complainant may have sustained by defendant’s breach of covenants made to complainant, there being no allegation of insolvency in the bill, and no impediment in the way of complainant’s prosecution of his rights at law.</p>

Parmenias Turnley by his next friend, instituted an action on the case for a malicious prosecution against William Evans, in the circuit court of Jefferson county, on the 7th day of November, 1840. The defendant pleaded not guilty, and the cause was submitted to a jury on the issue at the April term, 1842, R. M. Anderson, judge, presiding. The plaintiff offered as evidence the deposition of Thompson Cowen.

The record in this case shows, that at a circuit court held for the county of Campbell, at Jacksborough, on the first Monday in May, 1840, the following judgment was rendered, to wit: “This day came the attorney general, who prosecutes on behalf of the State, and Levi Lacy, Bluford C. Burris and Aaron Sharp witnesses, who had been regularly summoned to appear and give evidence on behalf of the State of Tennessee against the defendants, as they were bound to do, came not, but…

<p>cited Evans vs. The Stale, 1 Hump. 394: 1 Chitty C. C. L. 255.</p>

A. M. Carter sued out a warrant against White & Riley on 23d December, 1839, on a note of hand. This warrant was returned before Crumby, justice of the peace of Sullivan county, where the defendants resided; Carter resided in Carter county. Carter was not present at the trial, and the defendants introduced an account as a set-off against the note executed by defendants to plaintiff.

On the 26th day of April, 1842, Elisha Thomason, filed a petition in the circuit court of Grainger county, by virtue of the provisions of act of 1831, ch. 41.

The grand jury of Campbell county, at the September term of the circuit court, 1841, indicted John Chambers.

On the 18th of January, 1842, C. Easterly, a justice of the peace for Greene county, issued a warrant in favor of Rebecca Farnsworth, against And. Kennedy and Jas. Williams. This warrant was for an alledged trespass, in cutting timbers on the land of plaintiff, Farnsworth. It was tried on the 22d of January succeeding, before Easterly and Gass, justices, and judgment rendered-in favor of the plaintiff for $38 20 damages, and $10 costs. No appeal was taken.

Davis, a justice of the peace of Claiborne county, issued a warrant in favor of Elisha V. Wallen, on the 12 th day of April, 1839, against McHenry, as follows: “summon William McHen-ry, public ferry keeper, to appear before me or some other justice of the peace in and for said county, to answer the complaint of Elisha V. Wallen, in a plea of trespass and damage committed by receiving money ibr his ferriage, and then refusing to set him said Wallen, across Powell’s river at…

The State of Tennessee granted to J. Phillips 640 acres of land in the county of Monroe on Tellico river. Phillips sold and conveyed the southeast quarter section to A. Henderson for $1,200. On the 15th day of November, 1830, Henderson made his last will and testament, by which he directed this land 1.o bo sold by his executor and the proceeds divided among his heirs.

M. C. Rogers instituted an action of debt in the circuit court of Bradley comity, on the 6th day of December, 1838, against John Kincannon. The declaration sets forth that John Kincannon, and one George Kincannon (not sued in the action) executed and delivered to the plaintiff their writing obligatory on the 26th day of January, 1821, hearing date that day, by which they promised to pay the plaintiff one day after date the sum of $169 21| for value received.

•George, a free boy of color, under twenty-one years of age, by his next friend, Harris, sued Hartsell in the circuit court of Washington, on the 10th day of September, 1836, by writ of trespass vi et armis. Hartsell pleaded that plaintiff was his slave, upon which issue was joined. This issue was submitted to a jury at the October term, 1839, R. M. Anderson, judge, 'presiding.

This bill was filed by Oldham and Mosely against W. S. Kennedy and others, for the purpose of rescinding a contract for the conveyance of ten acres of land to Oldham and Mosely, by the defendants Kennedy and others, in the chancery court at Knoxville.

Ejectment for five thousand acres of land lying in Monroe county; judgment for the defendant in circuit court. Plaintiffs appealed in error.

This action of ejectment was instituted in the circuit court of Greene county, by the heirs of Jane King against McCorry, for the recovery of lands lying on McCartney’s creek in that county. The case was 'submitted to a jury at the February term, 1842, Lucky, judge presiding, when a verdict was rendered in favor of the plaintiffs. The defendant appealed in error.

John Gass, at an advanced age, and in infirm health, made his last will and testament, in the county of Greene, on the 1st day of March, 1837. This will appointed Sevier, Williams, Ross, and testator’s wife, Betsy, as his executors. In September, 1840, he made a codicil to this will, by which he revoked and annulled the appointment of Ross as one of his executors, and died sometime thereafter.

This case was argued by Mr. Trimble and Mr. Haynes, for the plaintiff in error, and by the Attorney General, on behalf of the State.

This bill was filed by the Attorney General of the State, in the chancery court at Murfreesborough. It was tried on the bill, answer, replication and proof, at the December term, 1842, by chancellor Williams. He dismissed the bill, and the attorney general, on behalf of the State, appealed. The facts of the case are fully stated in the opinion of the court.

This case was brought up, from the circuit court of Sumner county, by writ of error. See McCarroll vs Weeks, 2 Ten. Rep. 215, Hamilton vs. Burum, 3 Yerg. 335,. Porter vs. Webb Co. 4 Yerg. 161. I admit it is a rule, that the record must recite all the material facts necessary to give the court jurisdiction. Is not that done here?

<p>1. Where incompetent jurors were put to a prisoner by the decision of the court, and they were challenged by him: Held, that this was no ground of reversal, the defendant having procured a jury without having exhausted his-nuiuber of peremptory challenges.</p> <p>2. Where an individual was slaiu, and the proof of the agent and the attendant facts rested on circumstantial testimony, the fact that the accused was of mild and pacific temper and habits was admissible to aid the jury in ascertaining the probable grade of the oflence.</p> <p>3. Where a witness examined in chief and discharged, came back before the State had concluded its testimony, and brought into court fire-arms, stating* that they were the arms the prisoner had when he arrested him in Arkansas, and stating that he had for* got to mention the fact when first examined: Held, that the propriety or impropriety of permitting the statementto go to the jury at that time, was a matter belonging to the discretion of the circuit judge and will not be revised by the supreme court.</p> <p>4. Where a person enters upon land in order,to take advantage of a forfeiture or the like, or changes his residence or is upon a journey, or leaves home, or returns thither, or remains abroad, or secretes himself, or does any other act material tobe understood,his declarations madeat the time of the transaction and expressive of its character, motive or object, are regarded as verlal acts indicating a present purpose and intention, and therefore admissible in proof, like any other other material facts. The declaration must, however, have been contemporaneous with the principal fact.</p> <p>5. Where an individual was slain, and proof of the agent and the attendant facts rested on circumstantial testimony: Held, that declarations of the deceased, made on the day before'his death, as to the object and purpose of the contemplated trip which he did take, was admissible on two grounds, 1st, because it was legally contemporaneous with the main fact, the trip; and 2d, because it was explanatory of a conversation had in the presence of the prisoner.</p>

<p>The indictment charged the defendant with having stolen a horse; it was proved that he had stolen a gelding: Held, that this was a variance which was not cured by proof, that in the common understanding of the community, the term horse includes gelding, the statute having made the distinction.</p>

<p>The act of 1S09, ch. 09, sec. 3, authorizing* judgmenl by motion in favor oí asnrely against his co-surety, does not embrace by its terms ‘‘note, bill, bond or obligation for | the payment of money or the delivery of specific articles,” bills of exchange.</p>

Smith sued Lytle before ajustice of the peace in the county of White, for alledged neglect in not having paid over money deposited in his hands for payment to the plaintiff who had recovered a judgment against Smith before Lytle. In the meantime the bank notes became valueless. Smith paid the execution, and refusing to receive the depreciated notes from Lytle, sued him for the value thereof. The justice rendered a judgment in favor of the defendant, Lytle.

Findley sued Campbell before a justice of the peace in the county of Fentress, for the sum of $15. The justice rendered judgment in favor of the plaintiff. The defendant appealed. It was again tried at the June term, 1842, by judge Caruth-ers and a jury of Fentress county, and the judgment of the justice of the peace affirmed. The defendant appealed.

Norris was indicted in the circuit court of Dickson county, for stealing fifteen dollars, the property of Samuel Adam's. He pleaded not guilty, and the case was submitted to a jury at the February term,- 1842, Martin, judge, presiding. The jury found the defendant guilty and fixed his term of confinement in the penitentiary at three years. A motion for a new trial was made, and the affidavits of five of the jurymen were offered in support of the motion.

1. In construing an act of assembly, all the statutes that have been passed on the same subject, should be taken together. Coleman vs. The President and Trustees of Davidson Academy, Cook’s Rep. 258: Alien vs. Allen, 2d Tenn. Rep. 173: 2 Tenn. 373, 392. 2. Two statutes shall stand together and have effect if possible; for the law does not favor repeals by implication; and all acts in pari materia, should be taken together, as if they were one law.

<p>1. Where a prisoner was informed that the deposition of the man he had wounded was about to be taken by committing magistrates under the act of 1715, ch. 16, sec. l,and prisoner declined coming into the actual presence of the wounded man, saying he did. not wish to cross-examine him: Held, that the deposition of the wounded man was admissible after his death on the trial of the prisoner.</p> <p>% Where the deposition of the deceased was read against the prisoner, his declarations made before he gave his deposition, and afterwards, are admissible to show that he had been consistent and uniform in his declarations.</p> <p>3. Where the prisoner gave proof of the declarations of the deceased with a view to weaken the force of the deposition of the deceased, the State had the right to introduce other declarations of the deceased as rebutting testimony.</p>

This bill was filed by Thomas Maney, in the chancery court at Franklin, against Thos.' J. Porter. Gwin, Fisher and others made contracts with certain Indians of the Choctaw tribe, claiming reservations of lands. ■ Gwin, Fisher and others sold an interest in the contract to Porter, and. Porter sold one-half of his interest in 25 sections, lying in the State of Mississippi, to complainant, Maney.

<p>1. It must be shown that a witness who is called to prove the hand writing- of a person, has had such means of knowledge as to furnish a reasonable presumption, that he is qualified to form an opinion on the subject.</p> <p>2. Where a witness stated in a preliminary examination, that he had for several years been in the habit of receiving and paying- out notes of the Bank of Tennessee, and he believed he had thereby become acquainted with the ^land-writing of H. I£wing,the Cashier, and William Kichol, President, though he had never seen cither (he Cashier or the President write: Held, that he was a competent witness to testify as to (he genuineness of notes purporting to be the notes of such bank.</p>

<p>The indictment charged, that the defendant fraudulently and feloniously kept in Ins possession a machine, which said machine was then and there intended by the prison, erfor the forging and counterfeiting the coin current by law and usage in the State of Tennessee: Held, that this charge was sufficiently specific in its description of the character of coin intended to be forged and counterfeited.</p>

This case was argued by Messrs. Goode and Looney, for the plaintiff in error, and by the Attorney General and Mr. Shields, for the State.

<p>1. Where a person offered as a juror states that he has heard the circumstances of the case, and believing the statements he has heard to be true, has made up his mind as to the guilt or innocence of defendant, he is incompetent. He is incompetent whether he derives his information from a witness or from others, who professing to have ascertained the facts, may communicate a narrative of them to him.</p> <p>2. Individuals offered as jurors stated that from rumor and reports in their neighborhood, they had heard that a man had been killed, that defendant was accused of the murderand had attempted to make his escape, and that upon these facts and circumstances they had formed and expressed an opinion: Held, that they were competent as jurors.</p>

Armour was indicted in the circuit court of Giles county, under the 19th section of the penal code for burglary. He pleaded not guilty, and an issue thereupon was submitted to a jury at the December term, 1842, Dillahunty, judge, presiding.

The grand jury of Lawrence county, indicted Melton for publishing a libel against McLaren and wife.

<p>1. A sheriff on the 2d of April, J842, made the following* return on a $>. fa.\ “Levied this fi. fa. on a small remnant of store goods; sale 8th of April, 1842; March 21st, 1842.” Held, that tftis was an insufficient return, and authorized judgment against the sheriff.</p> <p>2. After a motion is made against a sheriff, and judgment rendered against him, he cannot amend his return, so as to release himself from his responsibility to the plaintiff for having made an insufficient return, or no return.</p>

An execution in favor of Todd was issued from the December term (1841) of the supreme court, at Nashville, and was placed in the hands of Webb, then sheriff of Giles county. Webb’s term of service expired before he had collected the money, and before the return day Jackson was elected his successor, and Webb procured a special deputation from Jackson to execute the writ.

<p>Chilton purchased by parol contract land ofNiblett. Subsequently he refused payment of the purchase money on the ground, that the sale was void, and retained possession of the property: Held, that a person in by void purchase is not the actual tenant of vendor, and is not entitled to notice to quit.</p>

Assumpsit in the circuit court of Bedford, by Wilson against Key. Pleas, non-assumpsit, payment and set-off. Wilson had executed his note for $200 to Rutledge, and Rutledge had assigned the note to Key. The collection of this note had been enjoined, and the bill was still pending. The note was offered as a set-off and rejected by S. Anderson presiding judge. Judgment was rendered in favor of plaintiff, and defendant appealed in error.

This suit was brought in the circuit court of Davidson county, against the defendants as sureties of George W. Latimer, a constable, upon his official bond.

<p>Courts of Chancery will rectify mistakes in the formation of contracts.</p>

<p>The security is not discharged by an agreement for delay, made by the principal and the plaintiff after judgment against them. The rights of the-security are not lessened or obstructed by such agreement. The security has a right to his j udgment against the principal by motion, notwithstanding the agreement for delay.</p>

J. & T. Eakin recovered judgment for $289 92, against W. W. Pope, and ji. fa. was issued, and levied on slave Ben, in possession of defendant in execution. Complainants, the children of W. W. Pope, filed this bill, in the chancery court at Gallatin, praying a perpetual injunction against the sale of said slave, for the satisfaction of said judgment, they claiming by deed of gift from their grandfather.

H. & J. Kirkman recovered a judgment in the circuit court of Sumner county, against Preston and others. Plaintiffs placed a fi. fa. in the hands of Rice, sheriff of that county. He failed to return it, and at a subsequent term, a judgment, by motion, was rendered against him and his securities, for the sum of $1007 19.

Thomas C. Porter was elected sheriff of Giles county in November 1831, and gave John Porter and others as his sureties. Before his term of service had expired, to wit, in October 1833, an execution in favor of Sherrell against Perry and others, tested of the preceding September term of the court, and made returnable to tbe ensuing February term, (1834,) for tbe sum of $1177 77, was placed in his hands. His term of service expired in November 1833.

This bill was filed in the chancery court at Franklin, and was heard before chancellor Bramlitt, at the May term, 1842, on bill, answer, replication and proof. He decreed in favor of complainant and directed an account. The defendants Saunders and Martin appealed. cited 9 Yerg. 442; 2 Devereux, Eq. Rep. 42.

1. The complainant has a right to call upon a court of chancery to set up a lost or destroyed deed. This it will do where the destruction or loss of the deed is an obstruct# Story’s Eq. 101,102. 2. The complainant has a right to renlí man’s Dig. 460; 2 Yer. 384. 3. Complainant can have partition. Hay. 295; Allnatt on Partition, 32. Law! 4. If a courl'of chancery acquire jurisdicti^fef will afford relief on the discovery. 1 Story, 438; 3 John. Ch. R. 351.

<p>1. A f. fa. may be levied on money.</p> <p>2. Mullins had two executions in his hands at the same time, one in favor oLDolby agaiust Waite for $61, and the other in favor of Waite against Dolby fox1 $145. Mullins collected the sum of $61 due Dolby, and appropriated it to the satisfaction of Waite’s execution and returned the facts: Held, on motion by Dolby agaiust Mullins tliat this appropriation was an authorized act, and the return a valid return.</p>

This bill was filed by Field, the beneficiary in a deed of trust, against Arrowsmith the trustee and others. Field was the surety of Mitchell. Mitchell executed a deed of trust for the benefit of Field, embracing a slave Jim, to be sold in the event it became necessary to save Field harmless. Arrowsmith was the trustee. Judgment was rendered in the circuit court of Giles, against Mitchell and Field. And Mitchell being insolvent, Field paid the debt.

<p>The accidental and unintended enclosure of a small poition of a tract of land for the period of seven years, is not such an adverse possession as is required to ci*eate a bar by virtue of the statute of limitations.</p>

<p>The possession of a note by A. the property of B. does not authorize a judgment against A. as a garnishee, nor a proceeding of any kind against the nolo. A note is merely evidence of a debt and is not the subject of execution.</p> <p>2. The payor of a note not due, is not subject to a garnishment. Sec act of 1838 oh. 33»</p>

<p>1. The making and selling aside orders preparatory to the trial of cases in chanóery rests in the discretion of the court making them, and it is exceedingly difficult for a revising court to correct any mistake or error in a matter so entirely discretionary. ' There is no principle upon which the court can rest with safety in so doing, and it is never done, except in cases of great and manifest injustice.</p> <p>2. As a general rule, a court of chancery ought not to set aside an order, taking a bil pro confesso, after the witnesses are all dead.</p> <p>3.-The propriety of receiving cross-affidavits on a motion to set aside an order to take a bill pro confesso is doubtful, and the practice of dangerous tendency, and not to be encouraged.</p>

<p>1. The act of 1762, ch. 5, sec. 5X providing that the county court shall appoint gua?. dians and take sufficient security from such guardians, and holding the justices making such appointment responsible for having taken insufficient security, extends to those only who made the appointment, not to those who may have signed the proceedings of the day in which said appointment was made.</p> <p>2. Facts asserted by the record, cannot be contradicted by direct proof, or circumstantial evidence; and, therefore, pz*oof to establish the fact, that the clerk of the county court was in the habit of stating on the record the names of justices as present at the commencement of the court, who were not present, was not admissible.</p> <p>3. The fact, that a justice of the peace was present and signed the minutes, in which was included an order appointing a guardian, does not estop him from denying that he was present at the time the appointment was made, and his presence at the adjournment of the courtis not prima facie evidence that he assisted in making the appointment. Yet his presence at the opening of the. court on the day on which the appointment was made, and his signature of the minutes thereof, were each of them circumstances proper for the consideration oí the jury in determining whether such justice was or was not present at the time of the appointment.</p> <p>4. Proof was presented to show that the clerk was negligent in writing out the proceedings of each day, and in consequence thereof, thejustices who acted upon the business left the court, and that the clerk, thereupon, called upon such other justices as were in attendance to sign the minutes: Held, that such proof was admissible to weaken the presumption that the justice who signed the minutes was present when the orders were made.</p>

Mitchell instituted this action of trespass on the case, in the circuit court of Maury county, against the Columbia and Franklin Turnpike Company. It was brought to recover alledged damages sustained by the plaintiff in the location of a turnpike x-oad through his real estate and the procurement of the materials for constructing such road from his land.

<p>1. A mortgage is a contract, whereby one person conveys property to another as a security for a debt.</p> <p>2. Where a verbal contract was made between an execution creditor and debtor, that the creditor should purchase the slave of the debtor at the execution sale, and hold the legal tille as a security for the debt: Held, that this contract amounted to a mortgage.</p> <p>3. Where the execution creditor made statements, that he would purchase the slave of his debtor, and hold him as security for his debt and interest, whf-reby others were prevented from bidding for the slave: Held, that there being no contract to that effect, such statements would not convert the absolute sale into a mortgage. Yet the creditor would be held constructively a trustee for the benefit of debtor and his creditors.</p> <p>5. The statute of limitations bars implied trusts.</p>

<p>3. Where the defendant has sustained damages by reason ofthe plaintiff's non-performance of his pari of the agreement sued on, such defendant has the right to abate the plaintiff’s verdict and recovery by the amount of such damages. See Porter vs, Woods, Stacker tyCo. Jinte.</p> <p>% Tt is the duly of the circuit judge to slate the principles of law applicable to the facts of the case before him; and if he do this correctly, there is no error. There is no obligation on the judge to tell the jury what the l^w wou|d be in a case not presented by the facts before them.</p>

This is an action of trover by Gupton against McCawley, for the value of a slave. Plea not guilty, and issue. It was tried before Martin, judge, and a jury of Montgomery county, at the June term, 1841, and verdict for defendant, and judgment accordingly. Plaintiff appealed in error.

Brown filed his bill in the chancery court at Pulaski against Massey, who was the owner of an occupant claim south and west of congressional reservation line, praying for sale of said claim. The sale was decreed and Brown became the purchaser. Brown then filed his bill for a decree for possession and an account of rents and profits. This was also decreed, and Massey appealed.

<p>A trustee, holding tlie legal title to property, standing in a fiduciary relation to the cestui que trust and responsible for costs, is not to be presumed to make admissions adverse to the interests of those for whom he acts, and such admissions are therefore competent evidence. They are not, however, conclusive, and it may be shown that he was misunderstood or mistaken.</p>

Assumpsit in the circuit court, of Montgomery county, by Knott against Wilson. Plea, non-assumpsit. Issue. The case was submitted to a jury, Martin judge, presiding. Verdict for the plaintiff for 1671 16. A motion for a new trial having been made and overruled, the defendant appealed in error.

<p>1, Where one has the right to enter the premises of another, he must exercise his right so as to inflict no unnecessary damage; and, therefore, where C. had the right by virtue of an act incorporating a Turnpike Company, to enter the enclosed field of B for the purpose of procuring materials to construct such highway, and in so doing left down the fences of B, whereby stock entered and destroyed his crop, A. was liable for such negligence to the extent of damage done.</p> <p>2, Where a party has a right of entry and abuses his right after entry, trespass lies. !No man shall abuse .his privilege and then protect himself under it.</p> <p>3, Where the defendant by authority of an act of incorporation, entered the premises of another and left down the fence, whereby stock destroyed his crop: Held, that it was no defence that the plaintiff's .fence was not as high in other places as required by the act of 180?, ch. 8.</p>

<p>The 10th section of the act of 1835, ch. 19, subjecting a slave to punishment of death for an assault with intent to commit a rape on a “free white woman,” does not embrace the case of a female underten years of age.</p>

<p>1. The legislature have the power to modify or reduce the compensation of public officers during the time for which such officers may have been appointed, in all cases where such power is not taken away by express provision of the constitution.</p> <p>2. The Attorney General was entitled to a tax fee of ten dollars in case of a conviction for gaming. The legislature, after indictment filed but before conviction, reduced this tax fee to five dollars: Held, that the Attorney General had no vested right to the fee of ten dollars before conviction.</p>

The Union Bank was incorporated in 1832. It was put in operation, and Thomas L. Budd was employed as a clerk in the bank from July 1836, to March 1841. During a portion of this time he was employed in posting the individual ledger, a book in which the accounts of depositor's were kept.

Jacob, a slave, was indicted in the circuit court of Davidson county, for the murder of his master, R. Bradford. After the organization of the criminal court the cause was transferred to that court for trial. It was submitted to a jury on the plea of not guilty at the June term, 1842, Maney, judge, presiding.

This suit was instituted in the circuit court of Davidson county, on the 25th September, 1840, on a bill single, executed in 1828, by Petway to the President and Directors of the Nashville Bank, for the sum of $10,000, payable on the 1st day of July thereafter. At the return term the defendant filed an affidavit, alledging that the charter of the Nashville Bank had expired, and that this suit was instituted without authority.

<p>Where an execution is levied and bond taken for the delivery of the property on the day of sale, the lien of the execution continues until the bond is forfeited. It is then discharged and the property is subject to the claims of other creditors.</p>

An action-of trover in the circuit court of Smith county, by Dilliard against T. Lancaster and T. B. Askew, for the value of a wagon and horse. The defendants pleaded not guilty, and issue was taken thereon. It was submitted to a jury at the April term, 1842, Caruthers, judge, presiding. It appeared, that on the 19th day of September, 1840, W. H. Alsup and H. H. Alsup confessed judgment before a justice of the peace, for $62 50 cents, in favor of T. A. Lancaster.

This was an action of assumpsit, instituted in the circuit court of Williamson county, by Pillow against Hardeman, administrator of Hardeman, on the endorsement by the deceased of a note. Plea, non-assumpsit, and issue taken. And on the trial before a jury, the question was as to- the sufficiency of the notice to-the endorser.

<p>Where the terms of a sale are agreed on, and the bargain struck, and every thing the seller has to do with the goods is complete, the contract of sale becomes absolute» without actual payment or delivery, and the' property and the risk of accident to the goods vest in the buyer.</p>

This is a bill filed in the Chancery court at Franklin by Gilbert G. Washington against John Tait, administrator, &c., and James Smith. Washington was Smith’s security on a note to Robert Tait, deceased. John Tait, the administrator, sued Washington in the circuit court of Davidson county and recovered judgment on the 12th May, 1840, for $1,215 40, This bill was filed to enjoin the collection of the amount of said judgment and for general relief.

<p>1. Before Ihe passage of the act of 1831, ch. 90, if a father delivered slaves to his son-in-law and daughter on her marriage, without any explanation as to the manner in which they were to hold them, a gift to the son-in-law was presumed.</p> <p>% A declaration of a loan, according to the act of 1801, ch. 25, sec. 2, must be made by the party having the right to the property at the time of the declaration. A declaration made by any other person would be of no validity.</p> <p>3. A deed of trust embracing property consumable in the use, is void as to the creditors and purchasers of vendor, but valid as between the parties, or as against those who have no claims superior to the vendor.</p> <p>4. He who stands by, having a claim to property, and sees a third person expend his money in the purchase of it, in igporance of any incumbrance thereupon, without making his claim known, shall afterwards be prevented from asserting his claim. This rule does not apply where claimant only assisted in making a valuation and division of Ihe property. *</p> <p>5. Wade made a deed of trust, conveying certain slaves, and held possession of them after the execution thereof: Held, that in the absence of proof to the contrary, he would be presumed to hold in that capacity in which, bylaw, he should hold.</p> <p>6. A surety who has paid money for his principal, may be substituted in equity to the lien which the creditor may have had on the property of the principal debtor.</p> <p>7. Where the creditor had recovered judgment against the principal and surety, and the surety has paid the money, the principal debtor has no right to set up as a defence against the claim of surety, that part of the judgment paid by .the surety was foy usury.</p>

<p>cited 6 John. Cb. R. 95: 2 John. Ch. Rep. 182: 7 Yerg. 543: 6 Yerg. 398.</p>

This bill was filed by complainant Frierson, in the chancery court at Columbia, against Moody, for the purpose of obtaining a perpetual injunction against the enforcement of certain judgment obtained by Moody against him. The defendant demurred to the bill, on the ground that complainant failed to avail himself of his rights of defence at law, and the chancellor sustained the demurrer. The complainant appealed.

<p>Fraud vitiates all contracts into which it enters; but the mere non-compliance with the terms of a contract in not paying a consideration agreed to be paid for land conveyed, is not such fraud as will authorize a court of chancery to cancel the contract.</p>

<p>1. If a person by practising' upon the confidence and credulity of a man, in extremis, weak in body and mind, obtain an unconscientious bargain from him, a court of Chancery will entertain, a bill at the suit of his personal representative to set aside the contract.</p> <p>2. The personal representative of the deceased cannot be permitted to alledge in his bill filed to set aside a conveyance of property by the deceased, that the conveyance was made with a view to defraud creditors. The fact that the personal representative is a creditor, cannot make any difference; his character of creditor cannot change the nature and legal effect of his position as representative, and standing in the shoes of the deceased, he shall not urge that which the deceased could not.</p>

<p>1. It is well settled, that the State, as abody politic, has the right to regulate the manner in which manumission shall be made, the extent of rights to be acquired under it, or to prohibit it altogether.</p> <p>% To secure the manumission of a slave under the laws of Tennessee, two things are necessary, the consent of the owner expressed, and the assent of the State given in the manner prescribed by law.</p> <p>S. If the executor of a will giving the consent of the testator to the emancipation of slaves, fail or refuse to apply to the county court to obtain the consent of the State, a court of chancery will, upon well settled principles, compel the executor to execute the trust, and in case of his death, will appoint another to act in his stead.</p> <p>4. The assent of the executor to the emaucipation is not necessary, (he being a naked trustee without interest,) unless, perhaps, in case of a deficiency of assets: and, therefore, where the testator gave his assent to the emancipation by will, and the executor failing to apply to the county court, the slaves, by their next friend, applied to the county court, and upon their petition, the said court ordered them to be j emancipated; it was determined by. the court, that the order was valid, and that a court of chancery should declare their right to freedom, and award an injunction against all interference with them by the executor, by suit or otherwise.</p>

<p>1. Art application for a continuance is addressed to the sound discretion of the circuit court, and the supreme court will not reverse a judgment because a continuance was refused, unless there appears to be a clear case of an erroneous exercise of discretion.</p> <p>2. The defendant’s affidavit for acontinuance of his case in the circuit couz*t, stated as a reason why he had taken no steps to procure the testimony of a material witness; that he was under the belief that the plaintiff had appealed from the judgment of the court below awarding; a new trial to him (the defendant;) Held, that this ignorance furnished no excuse. . He was bound to know the law.</p>

<p>A justice of the peace has no power to render judgment by motion against a constable and his securities, for failing to pay over money not collected by virtue of process in liis hands.</p>

<p>Where an issue of fact is directed in chancery, the finding of the jury is not conclusive upon the chancellor; yet such finding- is entitled to much weight with him in the formation of his judgment upon the whole matter; and this is more especially so where the matter submitted to the jury, was the validity of a deed which depended upon the credibility of the testimony of a witness.</p>

<p>1. If .a sale of chattel be absolute, and there be no subsequent consent to take it back, . the contract remains open, and the vendee must resort to his action on the warranty» uhless it be proved that vendor knew of the unsoundness of the article, and the ven-dee tendered a return of it within a reasonable time.</p> <p>2. Where the plaintiff brings covenant on a warranty of soundness, he elects to affirm the contract, and sue for a breach of it, and, therefore, can only recover the difference between the value of a sound and unsound article. In such an action he cannot go for the entire value of the article sold.</p>

<p>1. A parol rescisión of a written contract may be set up in opposition to a bill for a specific performance.</p> <p>2, Complainant recovered a judgment at law against defendant for the unpaid balance of the purchase money of a tract of land for which he had executed a bond for title. Having an execution returned nulla bona, he filed his bill to subject the equitable interest of thedefendant (o sale for the satisfaction of the judgment: Held, that this was a bill in the nature of a bill for a specific performance, and that it was a good de-fence to such bill» that the contract had been rescinded by a verbal agreement of the parlies to submit the matter in controversy to arbitrators, and that such arbitrators had awarded a rescisión.</p>

<p>3. The will of Mrs. Du/fill contained this clause: “I bequeath to H. B. Portera negro, Henry, which negro is to be by him loaned to W. Porter, during his Ufe, as the terms on which he is devised to him-: Held, that this was a valid devise, conferring on Wm. Porter the right to the services of the slave daring life, with the remainder to Hugh P&Wer. The slave having been converted by Hugh Porter, he was bound to account annually for the hire to Wm. Porter during the life of said Wm. Porter.</p> <p>2» The statute of limitations does not run against express trusts.</p> <p>3. Where possession commences in obedience to the title of another, the character of that possession by intendment o.f law continues until changed by an assertion of ownership evinced by some tangible act in hostility to the rights ofthe owner,such as a change of the possession by a sale; the fact that the possessor told some ten or a dozen persons that he claimed- the property as his own, would not be sufficient evidence of a hostile possession without notice thereof to the owner,</p>

<p>1. Aii original attachment will not lie, unless the plaintiff or defendant be a citizen of the State.</p> <p>2. At the return term of an original attachment, it was, on motion of the defendant, quashed. The plaintiff appealed to the supreme court. The judgment was reversed, and the cause remanded. A plea in abatement was filed at the first term of the circuit court, after the cause was remanded. Held, that this was in due time.</p>

<p>1. The sureties of a general guardian are not bound for funds paid to him, which has been created by the sale of real estate by order of the chancery court for the purpose of division amongst minor heirs. A special bond should be required embracing the specific fund.</p> <p>2. Where the guardian and wards resided in another State, and land lying in Tennessee , was sold for the purpose of division, by decree in chancery, in the State of Tennessee, such court would have the power to direct the payment of such fund into the hands of the foreign guardian; but in the exercise of this power, it is the duty of the court to take a special bond for the safety of the tund, and due account thereof to the distributees, unless the court should besatisfied, that the general guardian and his sureties would be responsible for the funds in the state where the appointment of guardian was made.</p>

This bill was filed in the chaneery court at Clarksville, by Boothe and wife, and the heirs and distributees of Andrews, deceased, against C. Bailey and others. Bailey demurred to the bill, which was allowed, and complainant appealed.

On the 7th day of May, 1840, Benj. Exum made his promissory note to S. Merrell, for the sum of $3234, payable six months after date at the Bank of the State of Tennessee. This note was endorsed by MerreH to Boyers & Saffarrans, by them to McKoin, by McKoin to Jenkins. Thus endorsed it was bought by the Bank of Tennessee. When it fell due it was not paid, and being protested, due notice thereof was given to the endorsers.

Assumpsit in the circuit court of Montgomery county, by Hackney against Jones. Plea non-assumpsit, and issue taken. There was a verdict and judgment in favor of the defendant. Martin, judge, presiding. The plaintiff appealed. cited Chitty on Bills, 199, 5 Mass. 543, 3 Mass. 225, Chitty on Bills, 257, note 1.

<p>1. Where neither plaintiff nor defendant has any legal title to the premises in controversy in an action of ejectment, no judgment shall be rendered for the plaintiff, as it would be turning out one trespasser to make room for another.</p> <p>2. The plaintiff rented alot to Jewel, and whilst Jewel was in possession, he made with the plaintiff a verbal contract of purchase and continued in possession of the lot: Held, that he was a tenant at will of plaintiff, and as such would be estopped from disputing his title.</p> <p>3. The right of a free negro to hold land in fee, could only be examined in a controversy between the State and sueh free negro, in reference tosuch right. A free negro has the right to the possession of real estate, and to a possessory action for the recovery of the possession thereof.</p>

<p>1. The vendor of conveyed premises is presumed io intend to retain his lien thereon for the payment of purchase money,and the circumstances which manifest the non-exis" tence of such intent must be shown by the vendee.</p> <p>2. The taking a security for the payment of the parchase money, whether it be amort-gage upon other estates, a pledge of goods, or the private responsibility of a third person is prima fade evidence thatthe vendor has waived and abandoned his lien.</p> <p>3. The acceptor of a bill of exchange is not in the theory of the law a surety — but merely pays over the money pf the drawer inpursuance of the order of the drawer; and therefore the taking of an accepted bill of exchange in payment of purchase money was not regarded as a security, and no evidence of a waiver of the lien; secus with regard to an endorsed note. An endorser is in the theory of law and in fact a conditional surety.</p>

<p>1. A deed is verified or proved, as well bythe solemn acknowledgement of its execution by the bargainor, as by the testimon}' of witnesses; and the act of 1831, ch. 90, sec. 9, directing that deeds of conveyance of land lying out of the limits of the State, should he proved as before, or before a notary public, is satisfied by the acknowledgment of the bargainor before a notary public. The word proved, as a general term, embraces both modes oí authentication.</p> <p>2. Mortgagees are, in general, purchasers, and are so within the meaning of the act of 1831, ch, 90, sec, 6.</p>

<p>Í* Aii account curreni waskept for a period of time, between the Clerk and the Marshal of the federal court, each receiving official fees for the other, until the accounts between them became complicated : Held, that a court of chancery will take jurisdiction to adjust such matters of account, notwithstanding the parties may have had originally, or still might have a remedy at law on each item of account.</p> <p>2. Although, by the act of 1835, ch. 20, sec. 17, jurisdiction is expressly given to a court of chancery against the sureties in bonds for the performance of covenants and collateral conditions, where the court has jurisdiction against the principal obligor; yet where it plainly appears that such sureties could not be embraced in any relief to be decreed against the principal, the sureties may undoubtedly demur.</p>

<p>1. The statute of limitations does not run tiil there is a grant of land fromthe State; for till Ihcn the title is in the State, and the statute does not run against the State.</p> <p>Plaintiff jn ejectment charged in a bill, previously tiled, that defendant had posses- - sion of tilt; land in controversy for more than seven years: Held, that this charge in the bill did not estop the plaintiff from proving that he was mistaken in making such statement in the bill.</p> <p>3. The plaintiff declared for two hundred and fifty acres- The jury returned a verdict in favor of the defendant for all the land in the declaration, except the fifty acres, whereupon the defendant formerly resided: Held, that this verdict was sufficiently certain to enable the sheriff to give the plaintiff possession of the land recovered, and was valid.</p>

<p>Where slaves were conveyed in trust for the benefit of the wife, with a power of disposition by her, by will or deed, and the deed containedno express provision for the disposition of the slaves, in the event of her death withouLdisposing of them; and she dies without making any disposition of.the slaves, either by deed or will, the slaves go to the husband surviving her.</p>

<p>1. The plaintiff in ejectment had a verdict and judgment. The record did not show that the plea of not guilty had been put in: Held, that this was no ground of reversal, the parties having appeared and tried the case on its merits.</p> <p>2. In ejectment the plaintiff must recover on the strength of his own title and not on the weakness of the defendant’s.</p> <p>3. A levy was in these words: “Levied on all the unsold land in the bounds of Overton county, belongingto the heirs of Mclver, and which lies within the bounds of the forty thousand acre tract, granted by the State of North Carolina to Stokely Donel-son and Wm. Terrell, by grant No. 289.” Held,'that this did not sufficiently identify the property intended to be sold, and was, therefore, void for uncertainly, and conveyed no title to the purchaser at the execution sale.</p>

<p>If a testator intended by a bequest to create a separate estate for the use of the wife, a court of chancery will carry that intention into effect; but such intention must plainly appear by the use of words, that denote an exclusion of the husband or a declaration as to the enjoyment of the properly incompatible with his dominion over it. 2. Peters in his will used these words: “I give to my daughter Susannah the following slaves, Aaron, Charlotte, &c., in the manner following: It is my will and desire that she have the benefit of said negroes, either by keeping them in speeie or selling them and having the proceeds of said sale; and the negroes and their increase or the proceeds of them, to be hers forever, t'o be disposed of as she may think proper amongst her children and grand children, by will or otherwise:” Held, that Susannah took an absolute estate in the slaves by virtue of this clause.</p>

<p>1. Bradford, Tilman and Cannon entered into articles of partnership, for the erection of a manufacturing' establishment. Cannon put in land, valued at $3,000, to be conveyed to the company when Bradford and Tilman should select the site thereupon. Bradford and Tilman bound themselves to contribute $9,000 in money for the erection of a dam, factory house, &c. &c. Held, that on a mere breach of the covenant to convey, a court of chancery would not decree a specific execution of the contract against Cannon, but would leave Bradford and Tilman to pursue their remedy at law. But Bradford and Tilman having gone on in the execution of their part of the ' agreement, and expended a considerable sum of money in the prosecution of the undertaking, (though they may not have advanced the whole sum of $9,000,) a court of chancery should decree a specific execution of the contract to convey.</p> <p>2. Bradford assigned his equitable interest in land to trustee for sale to pay his debts, and died. The trustee filed his bill against Cannon for the legal title: Held, that the heirs and legal representatives of Bradfordshould be made parties to such bill.</p>

<p>1. Hickman had an equitable right to an undivided interest in a tract of land, the legal title to which was in Haywood’s heirs» Madden and others made an entry of the land and took possession thereof; contending that the grant under which Hickman and Haywood’s heirs claimed the land, did not cover the land claimed by them* Hickman filed his bill against Haywood’s heirs, for the legal title and partition, and against Madden aud others to settle the dispute in regard to boundary: Held, that this bill was multifarious»</p> <p>2. When a bill is multifarious, and the defendant or defendants fail to demur, the objection is waived so favas the rights of the defendants is concerned, yet the court may* propriojiwe, insist on the objection and dismiss the bill.</p> <p>3. A court of chancery has no jurisdiction to try a naked question of title to land. It will take jurisdiction only in difficult and complicated cases, affording special grounds for equitable interference.</p> <p>4» Where a general demurrer will lie to a bill, the court will not grant relief at the hearing, though the defendant may submit to the jurisdiction by answering.</p>

The bill was filed in the chancery court at Franklin by Abner Pillow against Gideon and Granville Pillow, administrators of Gideon Pillow, deceased, and' against the heirs of said Gideon. It was tried on bill, answer and proof by chancellor Bramlitt. He dismissed the bill, and complainant appealed,

<p>Bowman bequeathed 4 negroes to his daughter Elmira, the wife of Silas Tucker, and the Will proceeds as follows: “It js further my will and desire, that in case my daughter Elmira die without issue, then and in that case, all the property I have given her shall be given to the Lord’s treasury, to wit, to religious societies, such as the Presbyterian church'may direct.11 Elmira died without issue living at her death: Held, that this devise passed an absolute estate to the first taker, and that the slaves went to the husband in virtue of his marital rights.</p>

Will not the act of 1789, ch. 23, run in favor of an estate protected by an administrator pendente lite? Held: an administrator pendente lite, is bound to pay debts so far as he has assets; because it is a principle of law paramount to all rights derived from the deceased, that whoever possesses the effects of a deceased debtor, becomes liable to the creditors, either as rightful representative, or as executor de son tort.

<p>1.Where the testator direct* the sale of real estate by his executor, for the payment of his debts, the executors may come into chancery to have their discretion directed and controlled.</p> <p>S\ A bill by executors against the devisee charged,</p> <p>3. That they had disbursed their private funds in the payment of the debts of the estate.</p> <p>2. That they had improved town lots, rented them out, received and disbursed the rents.</p> <p>3. That they had claims against the devisee for board and tuition.</p> <p>3. The bill prayed an adjustment of these matters of account, and a sale of real estate for the satisfaction of the debts due to themselves and others: Held, that this bill was not multifarious.</p> <p>4. If the objection for multifariousness be not taken by demurrer, the objection is waived by the parties. The court, proprio jure, may 'insist on it before an interlocutory decree, but not afterwards.</p>

<p>1. A judgment creates a lien upon equitable estates which may be asserted in chancery. This lien is co-extensive with the lien which at law exists upon legal estates, and may be enforced without the issuance and return of a ji. fa.</p> <p>% -The right of priority which exists at law in favor of the elder judgment is preserved in equity.</p> <p>3. Ajadgment binds lands acquired by the debtor, after the rendition of the judgment, either by purchase or descent, and binds often acquired equitable estates.</p> <p>4, Ajust construction of the act of 1831, ch. 90, sec. 7, which provides, that all judgments in a court of record shall be a lien on the lands of the debtor from the date of their rendition, provided an execution is taken out and the land sold within twelve months, where the debtor acquires lands after the rendition, gives the judgment creditors 12 months from the time the legal title accrues to the debtor, within which he may make his lien effectual by a levy and sale. The same construction should prevail in regard to after acquired equitable estates. If the judgment be registered within sixty days after the debtor acquires the equitable interest, and the bill filed within ten days after the return of an execution unsatisfied, the lien would be preserved.</p>

This bill was filed by Boyers against Boddie, in the chancery court on the 27th day of February, 1841, for the purpose of recovering back excessive interest paid to Boddie on a note executed on the 4th day of March, 1823, for $8000, and payable on the 4th day of March, 1824. At the date of the execution of the note an interest note for 800 was also executed. The note for the sum loaned was renewed annually, and also an interest note, which was paid at maturity.

<p>1. The declaration against the endorser of a bill of exchange, averred protest for nonacceptance and non-payment, and concludes; “of all of which said several premises the said H. ft. W. Hill had then and there due uotice:” Held, that this allegation of notice was sufficient.</p> <p>2. An agent, resident at New Orleans, to whom a bill was endorsed for collection, aud which was protested for non-acceptance, gave notice to the principal, resident at .Nashville, and the principal thereupon gave notice to the endorser, resident at Hew Orleans: Held, that this notice was good.</p> <p>3. Hill, J. Dick & N. Dick, were partners under the firm name of N. & J. Dick & Co. at New Orleans, and under the firm name of H. R. VV Hill & Co. at Nashville. H* R. W. Hill & Co. drew a bill on the house at New Orleans, which was protested for non-acceptance: Held, that the house at Nashville was, eo instanti, informed of the non-acceptance and no notice necessary.</p> <p>4. The 3d section of the act of 1801, ch. 18, authorizing an endorser of a bill of ex change to be discharged, if upon due notice the holder refuses to sue, does not apply to cases where the drawer resides out of the State.</p>