Volume 3 — Tennessee Reports

Writ of Error. On the 4th day of July, 1809, the plaintiffs in error preferred a petition to the County Court of Rutherford, setting forth in substance, that their father, in his lifetime, made two entries, each for six hundred and forty acres of ■land, on the waters of Stone’s River, which was surveyed by John Buchan-non ; that the plats and. certificates of said surveys were forwarded to the secretary of North Carolina for the purpose of obtaining grants; but that in…

<p>An action of debt -will not lie by the indorsee of a promissory note, not under seal, against the maker. [Overruled by Anderson v. Crockett, 6 Y. 330, citing 2 Wheat. 385, and 6 Pet. 20.]</p>

Writ of Error. Nunnellee brought an action of debt in the Rutherford Circuit Court, against James Morton, deceased, in his lifetime, for one hundred and seventy-nine dollars and sixty-one and one-fourth cents, with interest on $ 174.56]:, part thereof, from the first day of April, 1802, till paid.

v Adjourned Case. ) This was an action of trespass quare clausum fregit brought in the Williamson Circuit Court, by Anderson against Cannon, to which the defendant pleaded “ that at the time of the said supposed trespass the locus in quo, &c. was, and yet is, the soil and freehold of one' Robert White; and that he the said Newton, as the servant of the said Robert, and at his command, the said close broke and entered,” &c. Issue was joined upon this plea, and the following…

<p>Where the jurisdiction of courts of law and equity is concurrent, a fair determination of a question in either court concludes the parties on the point. [Acc. Thompson v. Hill, 3 Y. 67; Turney v. Young, 2 Ten. 266; Winchester v. Jackson, 3 Hay. 313, where this case is cited; Appleton v. Harwell, Cooke, 242; Lindsley v. James, 3 Cold. 477; Bumpass v. Beams, 1 Sn. 695.]</p> <p>Where, to give a court of equity jurisdiction, a disclosure is sought from the defendant, who denies the allegation in his answer, the bill ought to be dismissed without hearing evidence.</p>

<p>j-Writ of Error.</p> <p>DemumbRüne brought an action in the County Court, declaring in assumpsit against Betts, in substance, that in consideration of a certain lease executed by the plaintiff and defendant, by which Demumbrune was to have the use and benefit of a certain house and lot for the term of ten years, and for which Betts was to receive l,000i., Betts promised to build for the said Demumbrune, a kitchen on the premises, of a certain description. Betts pleaded non-assumpsit, and upon a trial in the County Court, after a deduction of $ 314, which Betts claimed as a credit, judgment was rendered for Demumbrune for $ 145.</p> <p>From this judgment Betts appealed to the Circuit Court, where, upon a trial being had, a verdict and judgment was found for Demumbrune for the sum of $ 186, with twelve and a half per cent interest on the sum of $145, the amount of the judgment in the County Court. To reverse which last-mentioned judgment the present writ of error was prosecuted.</p> <p>Upon the trial of the cause in the Circuit Court, a bill of exceptions was filed by Betts, setting forth the following case: “ Upon the trial of this cause it was proven that it would not have cost more than $ 100 to build such a kitchen as the defendant had agreed to build. The defendant proved an account against the plaintiff for $ 314 for articles furnished the plaintiff near nine years ago. One witness for the plaintiff proved that the want of a kitchen to a public-house or tavern would be a loss of $100 a year; that the house mentioned in the declaration was rented for ten years; that the kitchen was to have been built within a reasonable time after the commencement of the term; that there was a kitchen on the premises at the commencement of the term, but that it was almost useless, and could only be used in dry weather, and remained in that situation until about a year and a half before the expiration of the term, at which time a new one was built by the defendant. Another witness proved that, taking into consideration the old kitchen, the loss sustained by the want of a good one would be sixty dollars a year. It also appeared that the house' had been used before it was rented, as a tavern, and that it was so afterwards used by the plaintiff. It was also proved that after the execution of the lease by Betts to Demumbrune, Betts went to examine the articles of lease, and upon examination finding nothing mentioned in it about a kitchen, Betts said that he had agreed to build a kitchen as large as the old one, and as the plaintiff was an honest man, he would build it; for that it was his contract. It was proved that this agreement was made, at the time, or shortly after the lease was executed. Several witnesses swore that they had heard the-defendant say he had agreed to build a kitchen on the lot rented to the plaintiff, and for the plaintiff. It was also proved that the plaintiff gave the defendant for the rent of the premises aforesaid a tract of land worth 1,000 pounds, and that the witness understood, from the plaintiff and defendant, that the building of the kitchen was also on account of the land so sold by the plaintiff to the .defendant as aforesaid, in consideration of the rent and contract. Upon this evidence the jury found for the plaintiff $ 186.33 J cents, whereupon the defendant moved for a rule to show cause why the judgment and verdict should not be set aside and a new trial be granted; but the Court overruled the motion, and permitted the verdict and judgment to stand. To which opinion of the Court, the defendant, by his attorney, excepted, &c.</p> <p>And now the cause came on to be argued upon the following assignments of error: —</p> <p>1. The Court below erred in giving a judgment for 12^- per cent on the amount of the judgment in the County Court.</p> <p>2. There is no good consideration laid in the declaration, and</p> <p>3. The Court erred in overruling the motion for a new trial.</p> <p>The last assignment of error is important, and deserves consideration. Perhaps no principle of law is better settled than that parol evidence shall not be received to contradict or extend a written agreement. It appears that Demumbrune had leased of Betts a house and lot for the term of ten years, for which he was to receive a specified consideration ; and this contract so made was reduced to writing and signed by the parties. The question then occurs, can Demumbrune rely to recover in this action upon a contract made at the same time, and indeed forming a part of it, which is not incorporated in the written agreement ? That he cannot, at this day, I hope will not be questioned. 3 Wills. 275 ; 3 Dal. 424. The law presumes that wherever there is a writing between the contracting parties, it contains fully the bargain intended to be made, and to proceed upon any other principle, would be opening a wide door for fraud and perjury. In all ages greater solemnity, and with much propriety too, has been attached to written than to parol testimony; because the one is fixed, certain, and cannot mislead, whereas the other depends wholly upon the honesty of the witnesses and the correctness of their recollection. Upon this principle it has been settled by a variety of cases that where there is a writing, the law holds that it contains all the contract made between the parties, and will not permit parol proof to extend or alter it in any respect whatever. If De-mumbrune really bargained for building of this kitchen, it was easy to' have it incorporated in the written contract; and its not being found there, no matter whether it be owing to. omission or mistake, he cannot have the benefit of it. 2 Wit. Bla. Rep. 1259 ; 3 D. & E. 474; Doug. 24; 1 Atk. 13; IP. Wmst 618; 2 Atk. 384; Bul. N. P. 269-280; Pow. Con. 435, 436; 1 Dal. 10; 2 Dal. 133 ; 4 Dal. 340 ; 1 Johns. 139 ; Hardin, 258. There is also a ease in Kirby’s Reports, where there had been a writing executed by the plaintiff to the defendant, releasing him from all demands up to that date. .The plaintiff brought suit, and the defendant pleaded this in bar, to which the plaintiff replied, that the particular demand then sued on was not included in the release. The defendant demurred and had judgment, because this would be to contradict a written agreement. Kir. 291. The same principle is also laid down in 1 Mass. Rep. 69 - 91; 3 Johns. 68; 1 Johns. 414; 3 Call, 194; Kir. 23, 293.</p> <p>In short, men’s written agreements are not to be contradicted or extended by parol proof. There is a case also in Day’s Reports fully illustrative of this principle. A sold B a tract of land, containing, as mentioned in the deed, sixty acres, for a certain sum, to secure the payment of which a promissory note was given. It turned out that the land sold only amounted to forty acres, and B commenced a suit against A, relying upon a contract made at the same .time, specifying that in case the land fell short of the quantity, A would refund back a proportionable sum. But the Court said that the action could not be supported; because, by the admission of such parol proof, the contract would be extended beyond the written agreement. 1 Day’s Rep. 23. See also 2 Day’s Rep. 137; 1 Mum. & Hen. 124 and 2 Co. Mss. 50.</p> <p>But there is another ground upon which I contend that the Circuit Court ought to have granted a new trial. The verdict of the jury is evidently for too much. I admit that there are a variety of cases where the damages are wholly in the discretion of a jury; but this is not one of them. In this case, the law has surely fixed some data to go by, and of this the Court is the proper judge. Shall the damages recovered cover the whole amount of the possible loss sustained by Demumbrune? If so, then the jury have a right to say what that loss is. Shall the sum which it would cost to build the kitchen be the proper criterion? Then the jury may say what that sum is; but it is not the province of the jury to fix the rule which is to govern the plaintiff’s claim. In this case the jury have evidently given damages commensurate with what the rent of such a kitchen would have amounted to for seven or eight years, whereas they ought to have been confined to the sum it would have cost to build it, which is about one hundred dollars. The verdict of the jury is therefore several hundred dollars more than the plaintiff has a right to recover.</p> <p>It does not appear from the record that Betts made any objection to the right of Demumbrune to recover until after the jury had found their verdict. If the testimony offered was inadmissible he ought to have arrested it while the cause was on trial, and it is too late afterwards, by way of motion for a new trial. Let this be as it may, Demumbrune has a good cause of action. I do not contest the principle laid down in the cases cited by Mr. Cooke; but they do not apply in this case. They all go upon the notion that for the parol promise, offered to be proved, there was no consideration ; and perhaps no case can be found where there has been actually a consideration paid for the promise in writing, as well as the promise by parol, but what promise by parol has been supported. However, I have no occasion at this time to resort to such a principle, because I think it is sufficiently evident that the contract relied upon in this suit by Demumbrune is not one and the same contract as that reduced to writing. The case in 1 Day, 23, and 3 Wills. 275, which are chiefly relied upon by Mr. Cooke, were entire contracts, — contracts made at the same time, and forming one entire transaction. If this case were so situated, I should not contend that the action could be supported; but this is not the fact. The bill of exceptions states that the contract to build the kitchen was made at the time the lease was executed, or shortly after. From this it is by no means certain that they formed one entire contract; and if they did not, then they do not come within the principle laid down by the gentleman on the other side. In fact, there seems to have been two contracts, — the one for renting the house, and the other for building the kitchen. They were separate, and do not even appear to have been made at the same time. The latter, although not reduced to writing, can be well supported; and the consideration of the written contract can maintain the action on the other. The cases cited go no further than to say that parol evidence shall not be received to contradict a written agreement; but the principle can, as has been before remarked, apply only when it is an entire contract, and not where they have been made at different times, although in relation to the same matter.</p> <p>The damages recovered are not too high. Betts was paid to build the kitchen, and it was his duty to have performed his contract. If he did not, he must be responsible for all the loss sustained on the part of Demum-brune in consequence of his non-compliance. The kitchen was to have been built by Betts at all events; Demumbrune had no right to do anything about it, because such was their contract. Betts, therefore, ought to pay all the damages Demumbrune sustained, and not be confined to the price of building the kitchen only.</p> <p>Upon the first point I shall only add that if from the bill of exceptions any doubts arise in point of fact whether the contract to build the kitchen was made at the same time, and formed a part of the agreement intended to be reduced to writing, the jury were the proper judges of that matter, and they having found in favor of Demumbrune, the fact is therefore settled.</p> <p>I shall not go over the ground I occupied in my former arguments, because Mr. Whiteside does not seem to deny the principles I laid down; he only objects to their application. That this is an entire contract, it seems to me there can be no doubt; for although there is one expression in the bill of exceptions which, standing alone, is calculated to produce a doubt, yet it sufficiently appears elsewhere that there was but one contract. Indeed, it is expressly alleged that the promise to build the kitchen was a part of the contract to rent the house. But if I am mistaken in this, yet it will not be placed in any better situation for Mr. 'Whiteside. Separate the agreements, and the one which is the foundation of the present action will be without consideration; and no legal idea is better settled than that a voluntary promise, without a good consideration, is not binding. Going upon this state of the case, and it will simply appear that Betts promised to build a kitchen for Demumbrune, for which, from aught that appears here, he was to receive nothing. Pow. Con. 333 - 331. The 1,000?. could not be the consideration, because for that sum Demumbrune had already been compensated by the rent of the house and lot.</p> <p>The Court below erred in rendering a judgment for the twelve and a half per cent on the amount recovered in the County Court. The act of Assembly only meant to authorize such a judgment where the same sum was recovered in both courts. To have the benefit of the twelve and a half per cent Demumbrune should have released all but the $ 145.</p>

-| Adjourned Case from the Davidson Circuit f Court. Kincaid sued out an original attachment against Thomas, who was not an inhabitant of Tennessee, in his lifetime; and upon a garnishee being summoned, filed his declaration in debt, in the usual form, for $ 117.60. After this, Thomas died, and letters of administration were granted to Thomas W. Francis.

>• Writ of Error. ) This was an action brought in the Williamson County Court by Buyers against the two Cowans. The declaration was in trover for a certain quantity of corn; plea, not guilty. Upon the trial of the cause in the County Court, a verdict and judgment.was rendered in favor of Buyers, from which the Cowans appealed to the Circuit Court of the same county.

\ >- Case adjourned from Williamson. SoutheRland Mayfield in his lifetime executed a penal bond to one Smith, conditioned for the conveyance of a certain tract of land as soon as a grant could conveniently he procured from government. This property was afterwards assigned by Smith to oné Byrne, and by Byrne assigned to John Mayfield, one of the defendants and coheirs of Southerland May-field, deceased. After the death of S.

\ >• Adjourned from Williamson. This was a caveat brought in the County Court of Williamson County, in which a verdict and judgment was rendered for the plaintiff. From this judgment, the defendant, Shute, appealed to the Circuit Court of the County of. Williamson; from which, by the consent of parties, it was removed to this Court. The following facts were agreed : — 1.

J > Writ of Error. This was an ejectment brought in the Circuit Court of Bedford County, against the plaintiff in error, to recover possession of a certain tract of land, wherein a verdict and judgment was rendered in favor of Greaves for the land in controversy, to reverse which this writ of error was prosecuted.

\ v In Chancery. Thomas H. Perkins, one of the defendants, brought a suit at law and recovered a judgment against the complainant in the Court of Pleas and Quarter Sessions for the County of Davidson.

t > In Chancery.1 Bart on obtained an injunction to stay the proceedings on a judgment at law obtained against him in the Court of Pleas and Quarter Sessions for the County of Rutherford, by William Lytle, the defendant.

<p>To support a verdict the Court will presume everything consistent with law; and will not notice many objections, which would have been fatal, if made by demurrer or exception. Thus, a failure to object to testimony at the trial is a waiver of its illegality or incompetency. [Acc. Cooke, 39, and cases cited.]</p> <p>To sustain an action for malicious prosecution, malice and want of probable cause must concur. [Acc. Dodge v. Brittain, Meigs, 84.]</p> <p>The Supreme Court will reverse the action of the Inferior Court in improperly overruling or sustaining a motion for a new trial, upon a clear case. [Acc. White’s Lessee v. Hembree, 1 Tenn. 531, citing this case. But see, now, Huggins v. Moore, 3 Head, 428, contra.']</p> <p>Note. — This case is also cited in 2 Y. 332, and 3 Y. 295. — Ed.</p>

\ j-In Chancery. Searcy filed his bill, praying for relief against a judgment obtained at law against him by the defendant, Pannell.

y Ejectment. On the trial of this cause the plaintiffs produced one Donnelson for the purpose of proving their beginning corner. Donnelson objected to being sworn upon the ground that he was interested, having purchased a part of the land in controversy from one of the defendants.

>- Ejectment. The plaintiffs, in support of their title, produced in evidence, a grant from the State of North Carolina to John G. Blount and Thomas Blount, for five thousand acres of land, as mentioned in the declaration; and they offered in evidence a deed from the grantees to David Allison, under whom they claim.

E > Ejectment. This was an action of ejectment brought to recover a tract of land on the south side of Duck River.

a > Appeal. Beooks brought an action of debt against M’Kean, upon a bond for three hundred dollars, to which M’Kean pleaded non est factum and a set-off. Yerdict and judgment upon both issues for the defendant. Brooks applied to the Court and got leave to take the deposition of John Priestly. A commission was issued to take the deposition of John Priestly, and the notice was to take the deposition of John Priestly.

1 \ Chancery. ] This was a bill in equity brought by the complainant Perkins and John Taply in his lifetime against the defendants, to recover a tract of land.

>- Chancery. ) This was a bill in equity brought by the complainants, to be relieved against a judgment at law obtained by Hogan, assignee of Henderson, upon a bond for two hundred dollars.

<p>\ y Chancery. )</p> <p>The complainants instituted their suit in Chancery, charging that James Shelby, in his lifetime, had procured from the commissioners, appointed by North Carolina for that purpose, a certificate for six hundred and forty acres of land; that, in 1783, the said James Shelby was killed by the Indians, leaving John Shelby, the ancestor of the complainants, his eldest brother, and heir-at-law, who thereby was entitled to the certificate; that a certain Evan Shelby fraudulently got possession of the certificate, upon which he made an entry with the entrytaker, and had the same carried into a grant.</p> <p>The bill further charges that the defendant, Isaac Shelby, sets up a claim to a part of the said land, as heir-at-law to his father, Evan Shelby ; and that the defendant, David Shelby, claims the balance by virtue of a deed executed to him by the said Isaac Shelby. It is also charged that Isaac Shelby had notice of the equity of the complainants before he made his purchase from his co-defendant. .</p> <p>The prayer of the bill is that the land may be conveyed to them, they being the heirs and legal representatives of John Shelby, deceased.</p> <p>To this bill both the defendants pleaded in bar to the complainants’ equity that they had been in peaceable possession for upwards of seven years, during which time no entry or claim had been made by the complainants.</p> <p>The statute relied upon to support -this plea was enacted by the Assembly of North Carolina in 1715, ch. 27, §§ 1, 2, 3, and is in these words: —</p> <p>“ Whereas, great suit, debate and controversy hath heretofore been, and may hereafter arise, by means of ancient titles to lands derived from patents granted by the Governor of Virginia, and the conditions of which patents have not been performed, nor quitrents paid, or the' lands have been deserted by the first patentee, or for, or by reason, or by means of former entries or patents granted in this Government, for prevention whereof, and for quieting men’s estates, and for avoiding suits at law : —</p> <p>“ 2. Be it enacted, by, fyc., That all possessions of or titles to any lands, tenements, or hereditaments whatsoever, derived from any sales made either by creditors, executors, or administrators of any person deceased; or by husbands and their wives, or husbands in right of their wives, or by in-dorsements of any patents, or otherwise, of which the purchaser or possessor, or any claiming under them, have continued, or shall continue, in the possession of the same for the space of seven years, without any suit in law, be, and are hereby, ratified, confirmed, and declared good and legal, to all .intents and purposes whatsoever, against all and all manner of persons; any former or other title, or claims, act, law, usage, or statute to the contrary in any wise notwithstanding.</p> <p>“ 3. That no person or persons, nor their heirs, which shall hereafter have any title to any lands, tenements, or hereditaments, shall thereunto enter or make claim, but within seven years next after his, her, or their right of title which descend or accrue; and in default thereof, such person or persons so not entering or making default shall be utterly excluded and disabled from any entry or claim thereafter to be made.”</p> <p>The defendants also insisted, by way of answer, upon the statute of limitations.</p> <p>cited and relied upon 3 P-Wms. 143; 1 Eq. Ca. 303,304; 1 P. Wms. 743 ; 2 Eq. Ca. 71, pi. 11; 3 Eq. Ca. 578, pi. 1, 3, 579, pi. 8, 9 ; 3 P. Wms. 309 ; 1 Wash. 145 ; Hardw. Pep. 278; 2 Ponb. 116, note a; 1 Har. Ch. 254, 255, 270.</p> <p>cited and commented upon 2 Bl. Com. 353; 2 Com. Dig. 670, Tit. Chy. 4, K. 1; 1 Vern. 226; 2 Atk. 51; 3 P. Wms. 143, 309; 2 Atk. 612; 3 Atk. 459.</p>

} >• Chancery. This was a bill in equity brought by the complainant against the defendants to compel a conveyance of a tract of land.

>• Chancery. ) In this case, after the death of Taply, who was a complainant with Perkins, the suit was revived in the name of his executor, and not in the name of his heirs. By a decree of this Court the hill was dismissed as to all the defendants but Hays; and the Court were of opinion that, as he had not divested himself of his title to all the land, he should be compelled to convey what he still held.

t >- Appeal. ) This was an action for a malicious prosecution, commenced in the County Court of Davidson, by the appellee against the appellant. The declaration in the usual form, set forth that the appellant without causej -&e. commenced a suit against the appellee, in the County Court of Davidson. The declaration contained the usual averments, used in such actions.

v > Writ of Error. Upon the trial of this cause, which is an ejectment, in the Circuit Court of Rutherford County, the plaintiif in error, who was also the plaintiff in the inferior court, offered in evidence a grant which had been issued by the State of North Carolina, as amended by the Secretary of this State. The evidence was objected to by the counsel for the defendants, and the Court sustained the objection.

\ V Appeal. ) This was an ejectment brought against the appellees, in the Circuit Court of Williamson, to recover possession of a tract of land, lying between Nashville and the Cumberland River.

\ >-Writ of Error. This was a petition for a distributive share of the estate of Samuel Deloach, deceased, under the act of Assembly passed in 1762. It appeared that Samuel Deloach died in the year 1791, or early in 1792, leaving the wife of the petitioner, William Sneed, his only child. In July, 1792, Noah Sugg, the father of the wife of the deceased, was appointed and qualified as the administrator of the estate of Deloach.

<p>v j- Writ of Error.</p>

<p>Where the vendee of land is in possession under a contract to convey, made by the vendor without fraud, and has never been disturbed in such possession, any better title he may acquire will enure to the benefit of the vendor; and all that the vendee can, in equity and good conscience claim, is, to be reimbursed his outlay in acquiring the better title. [Acc. S. O. 1 Tenn. 421; Moore ». Harryman, 1 Tenn. 259; Mitchell ». Barry, 4 Hay. 142; Meadows». Hopkins, Meigs, 185; Redmond®. Bowles, 5 Sn. 547; Cooke, 238.]</p>

\ > Appeal. The plaintiff filed his petition in the Circuit Court of Davidson County, in which he states that the commissioner of West Tennessee had issued a warrant or certificate to Thomas Dillon, for five thousand acres of land, No. 292 ; that the petitioner had procured for a full and valuable consideration, an assignment of three thousand two hundred and sixty acres, part of said warrant, and in pursuance of that assignment made an entry of three thousand acres, on the…

<p>\ > Chancery. )</p> <p>The complainants filed their bill, in which it is stated that they claim a five thousand acre tract of land, by virtue of an entry in John Armstrong’s ofiice, No. 535, in the name of Jones Kendrick, made on the 27th day of October, 1783, in these words : —■</p> <p>“ Jones Kendrick, five thousand acres of land, on the west fork of the second creek above General Greene’s land, that empties into Duck Kiver on the south side, beginning near the fork of said creek, and extending up the west fork for complement.”</p> <p>That Elijah Robertson, on the 29th day of October, 1783, made three entries in the same ofiice for five thousand acres each, Nos. 1043, 1044, 1045, which are situated in the neighborhood of the entry made by Kendrick: that these entries were surveyed and granted previous to 1791; and that the entry 1044 had been transferred to the defendant, to whom a grant issued in the year 1790, — that Thomas Gill, also, had an entry in the same books, made on the 30th day of October, 1783, for one thousand eight hundred and sixty acres, which also lies in the neighborhood of the complainants’ entry. The bill also alleges, that it ever was the intention of the owners of said entry No. 535, that it should be surveyed in an oblong, twice as long as broad, beginning at the junction of the east and west forks of Fountain Creek, and running the oblong up 'the west fork, — that said entry No. 535 has not yet been surveyed ; and that if it be run in an oblong form, as was intended, it will include great part of the land granted to the defendant, by virtue of the entry No. 1044 ; and that if it were run in a square, it will include a considerable part, though not so much; but if it be surveyed in the latter form, only two of the four complainants will be included within the defendant’s grant.</p> <p>It is also charged that the complainants had applied to the principal surveyor of the district in which the land is situated to survey the entry No. 535 in an oblong, but that the surveyor refused to do so.</p> <p>The complainants assert that, agreeably to the 38th section of the land law of 1807, and the laws of North Carolina referred to by that section, they are entitled to have their entry surveyed' in the above described oblong form; and that, in consequence of the refusal of the surveyor to survey it in that manner, they have been prevented from getting a grant, and thus rendered incapable of instituting or defending actions of ejectment ; and that said Jones Kendrick has sold part of said oblong to different persons, who are in possession.</p> <p>The bill further states that the defendant, taking advantage of these circumstances in the complainants’ title, has instituted several actions of ejectment against them; and whether the entry No. 535 be surveyed in a square or oblong, it greatly interferes with the said Dallum’s grant, as well as the grant to Gill, and Elijah Robertson’s entry No. 1,043.</p> <p>A plat is exhibited showing the connection of these and other granted lands in the neighborhood. Of ten five thousand acre tracts laid down in this plat, not one is laid down in a square; nor were three others of a less quantity. Copies of nearly all these entries were read, and none of them called to run in a square, or any other particular shape.</p> <p>The bill prays that'Dallum maybe enjoined from proceeding in his actions of ejectment until it shall be determined whether a square or oblong is the proper form of surveying the entry under which the complainants claim.</p> <p>Dallum, in his answer, insists that his entry is special; and that if he had surveyed strictly conformably to it, it would have interfered more with the complainants’ claim than it does now; that he has fairly, and without fraud, obtained a legal title, and that the complainants’ entry is vague, uncertain, and not sufficient to arrest from him his legal title. It is also stated by the answer, that should the complainants’ entry be deemed valid, they have no right to have it surveyed in an oblong form, as an intention to do so was not expressed in the entry, — that there is no claim in the neighborhood that would have prevented the complainants from running their entry in a square; and that if it were run so, it would interfere in a less degree with other present existing claims than if it is surveyed in an oblong. He also insists that, as the complainants have not obtained a grant, they have no right to come into equity; and he exhibits his title papers as a part of his answer.</p> <p>To this answer there is a replication, whereupon the cause was set for hearing.</p> <p>It appeared in evidence .that General Greene’s land was a place of-notoriety at the time the complainants’ entry was made, — that Fountain Creelr is the second creek that falls into Duck River on the south side above that tract of land. The description given by several witnesses of Fountain Creek and its branches is, that in going up from its mouth, at 121 poles, is the mouth of Silver Creek, which is about nine miles in length, and at its mouth, about one third of the width of Fountain Creek; and that in the summer it contains not more than one sixth part of the water; that in proceeding up Fountain Creek, Hurricane Creek and Brush Creek empty into it, but their size is much smaller than that of Silver Creek. The next is the two forks, nearly of a size, one now called Globe Creek, and the other, which is the western fork, is called Fountain Creek. From the mouth to these forks is five miles and one hundred and twenty-five poles. Each of these main forks have many branches, but in going up they diverge from each other; they are nearly equal as to length, size, and water, and the fork is about seven miles below the head springs.</p> <p>The complainants claim to begin at the junction of these two forks ; and they exhibited evidence to show that the surveyor refused to survey it in an oblong.</p> <p>It also appeared in evidence that several entries had been made on the same day on which the entry of Kendrick was made, calling for Fountain Creels by its proper name.</p>

\ >• Chancery. ) This was a bill in equity, praying for the conveyance of a tract of land.

<p>\ v Chancery.</p> <p>This was a bill in equity brought by Appleton, to be relieved against a judgment at law.</p> <p>The bill alleged that the complainant had hired of the defendant Har-well a negro man named Robin, for the sum of forty-seven dollars, belonging to Mrs. Ballard, another defendant; that when the negro was hired, Harwell represented him to be a sound and sensible negro, and fit for plantation use; and that in consequence of such representation the complainant hired him; that at the time the negro was hired he was unsound and afflicted with a sore leg of long continuance, so that he was wholly unfit for service, which was well known to the defendants; that after having the negro in possession a few days, his deficiencies were discovered ; and that he then returned him to the defendant, Ballard, the owner ; that for the hire of the negro he had executed his bill single, upon which a suit had been brought in the name of Harwell, to whom it was made payable; that all these matters, when exhibited in a court of law on the trial of the cause, had proved unavailable; and that a judgment had finally been recovered for upwards of fifty dollars.</p> <p>Harwell answered that he had made no representation as to the soundness of the negro, nor did he know that he was unsound. He stated that he only acted as the agent of Mrs. Ballard, and that he had been guilty of no fraud.</p> <p>.Mrs. Ballard answered that the negro was not unsound; that he had a slight sore leg, which was cured in a few weeks after Appleton returned him; that she then offered to return him to the complainant, but he refused to receive him, alleging that he had been defrauded; and the whole matter had been fully and fairly investigated in a court of law, where a decision had been made in her favor, which she conceived ought to preclude any further investigation.</p> <p>These answers being replied to, the cause was set down for hearing.</p> <p>It appeared in proof that when Appleton returned the negro he was placed under the hands of a physician, by whom his leg was measurably cured, but that Appleton refused to receive him again upon the ground that he had been cheated.</p> <p>A jury being impanelled to try the issues of facts, found the following : —</p> <p>1. That the negro man Robin, named in the complainant’s bill, was, at the time the complainant got him from the defendant Harwell, not a sound, sensible, and healthy negro.</p> <p>2. That Robin had, at the time of his being hired and long before, a very sore leg and other complaints, so as to render him unfit for a field negro or other service..</p> <p>3. That the defendants, at the same time, knew Robin had a very sore leg, and was afflicted with other complaints.</p> <p>4. That Robin, at the time he was hired, was represented by Harwell to be sound, active, and lively, and fit for plantation service.</p>

<p>Trespass quare clausum fregit cannot be maintained against a person in actual adverse possession of the land. [Acc. Polk v. Henderson, 9 Y. 810; West v. Lanier, 9 Hum. 762.]</p> <p>A legal or constructive possession of land cannot exist where there is an actual adverse possession. #</p> <p>Possession of part is possession of all the land covered by the grant or deed. [Acc. Creel v. Jones, 6 Sn. 631; Waddle v. Stuart, 4 Sn. 534.]</p> <p>Note. — The dictum in this case, that a legal or constructive possession is not sufficient to sustain an action of trespass on real property, is overruled by Polk v. Henderson, 9 Y. 310, and West v. Lanier, 9 Hum. 762. —Ed.</p>

v V Appeal. This was an action of slander, brought by Howell against Cheatbam, in the Robertson Circuit Court. The declaration contained two counts, both, in substance, alleging that the defendant charged the plaintiff with having committed murder in the State of Yirginia; and that he left the country to avoid a prosecution. To this action, the defendant pleaded not guilty and justification, upon which issues were joined.

-t >• Writ of Error. This was an action of ejectment, brought by Cooper’s Lessee, against Leach, the plaintiff in error. ' The declaration describes the land as “ beginning about two miles below the mouth of Harpeth, on the Cumberland River, on two sycamores, John Boyd’s corner, one half mile above the mouth of Haw Creek.” The lessor of the plaintiff then produced a grant from the State of North Carolina, issued to William Fletcher, under whom the lessor of the plaintiff…

<p>Writ of Error.</p> <p>This was an action of ejectment, brought in the Circuit Court of Robertson County, to recover possession of a tract of land.</p> <p>It appeared in evidence that the land in controversy had been granted to Henry Brisner, many years ago, by the State of North Carolina. On the 14th day of November, 1798, after the death of the said Henry Brisner, his son and heir-at-law, George Brisner, sold and conveyed the same to Matthew Brooks. This deed was registered on the 6th day of October, 1802. The defendants claim regularly under Brooks.</p> <p>On the part of the lessor of the plaintiff, it appeared that on the 7th day of February, 1801, Hugh and Ralston sued out an original attachment against the property of George Brisner. On the 9th day of the same month it was levied on the land now in dispute, and returned to the succeeding April County Court. At January term, 1802, a judgment was obtained, and in 1803 the land was sold. At this sale, Vinson became the purchaser, to whom, in 1808, the sheriff executed a deed.</p> <p>At the time the attachment in the name of Hugh and Ralston was levied and returned to court, the deed to Brooks had not been registered, nor was there at any time any law in force authorizing its registration.</p> <p>Upon the trial of the cause in the Circuit Court, the Court instructed the jury in favor of the defendants; whereupon a bill of exception was taken, and the cause brought by writ of error to this Court.</p>

^ > Appeal. ) This was an action of assumpsit, brought by the appellants against the appellee. The declaration contains two counts ; one for money had and received, and the other for money laid out and expended. The case was as follows: — The appellants and appellee jointly purchased of Robert Weakley, for ten hundred and sixty dollars, six hundred and forty acres of land, for the payment of which sum of money they executed their joint obligation to Weakley.

- Writ of Error. The defendants in error, having obtained a judgment in the Davidson Circuit Court against Coleman, he, under the replevin law passed the 23d day of November, 1809, stayed the execution of the judgment by giving bond and security agreeably to the provisions of the statute. At the expiration of the twelve months the defendants moved the Court for, and obtained a judgment against Coleman and his, securities for the amount of the replevin bond.

\ V Writ of Error. ) This was an action brought by Wells against Glasscock, in the County Court of Williamson, to recover damages in consequence of a fraud alleged to have been committed in the swap of horses.

> Writ of Error. ) Bell recovered a judgment in the County Court of Bedford against Singleton, in the following words, to wit: “ On motion of the plaintiff by his attorney, and it appearing to the satisfaction of the Court that an execution which issued heretofore from David Robertson, Esq., a justice of the peace in and for said county of Bedford, commanding the defendant, as constable, to make the sum of thirty dollars, the sum in the said execution specified, of the goods…

( w .. , ._ > Writ of Error. J This was an action of debt founded upon a bond alleged in the declaration to be lost. The defendants in the Court below craved oyer of the bond and the condition annexed to it, which is set out. It appeared that the bond was,in the penalty of eight hundred and fifty dollars, conditioned for the conveyance of a tract of land.

\ >• Writ of Error. This was an action of covenant brought by Simms against Fonville in the Rutherford Circuit Court. The declaration states that Fonville had conveyed by deed a tract of land to Simms, in which he had covenanted that he would warrant and defend the same against the claim of all persons whomsoever, and that it was free from all encumbrances.

-t >- Appeal. ) The appellee sued out from the office of the Davidson County Court a scire facias against the appellant as special hail of William Chribbs, as follows: “ Whereas Gerard Trammell, heretofore in our County Court of Davidson at July sessions, 1806, obtained a judgment against William Chribbs for the sum of eighty-four dollars, for which there has issued against the said Chribbs a writ of capias ad satisfaciendum, bearing teste the third Monday in April, 1807,…

v >• Appeal. Hodge, the appellant, recovered a judgment against the appel-lee, in the Davidson County Court, upon which several fieri facias issued, and on the 16th day of January, 1810, a capias ad satisfaciendum was also issued, upon which, on the 8th day of February following, the appellee was committed to prison.

\ V Appeal. ) This was an action of ejectment, commenced in the Maury Circuit Court, to recover possession of a tract of land. A verdict and judgment being had against the appellants, a hill of exceptions was taken to the opinion of the Circuit Court, and an appeal prayed and obtained.

\ >• Appeal. ) This was an action of trespass, assault, and battery, commenced by the appellant against the appellee, in the Williamson Circuit Court. The declaration is in the usual form, to which the defendant pleaded son assault demesne in a formal manner. Immediately after the plea these words appear on the record, under the signature of the appellant’s counsel, “ Replication and issue.” The cause was tried by a jury who found for the defendant.

<p>\ V Appeal.</p> <p>This was an agreed case commenced in the Bedford Circuit Court. The case states that the appellant, in August, 1806, settled on a piece of vacant land ; that on the 6th day of May, 1807, he caused it to he surveyed with a view to appropriate it by right of occupancy; and that on the 3d day of March, 1809, he applied a warrant and made an entry for three hundred acres, including his improvement, and the next day procured a grant. He made improvements on the land by clearing, building cabins, See. and resided thereon from the time of his settlement until the year 1812.</p> <p>The ancestor of the appellees, on the 8th day of August, 1807, entered five hundred and thirty-two acres, including all the improvements which were then and afterwards made by the appellant; and on the 4th day of December, 1808, obtained a grant. In October, 1808, he commenced an ejectment and, on the trial of that suit, recovered the possession of the land from the appellant, who surrendered the improvement in 1812.</p> <p>The appellant then commenced the present suit, viz. an action on the case, to recover the value of his improvements. The verdict and judgment being against him in the Circuit Court, he obtained an appeal.</p> <p>Several questions arise in this cause : first, is the appellant entitled to payment for his improvement at all; and, secondly, if so, can he be allowed to recover for such as were made after the declaration in ejectment was served on him.</p> <p>The Act of 1809 declares that “ any person in possession of any land under patent grant or lawful entry, and shall at any time be dispossessed by due course of law, in that case the person so dispossessed shall be entitled to recover, See.” It would seem clear from the provisions of this Act that the appellant is entitled, at all events, to be paid for such improvements as were made before the 3d day of March, 1809, which is the date of his entry; but I contend further, that he is entitled to recover for those that were made at a subsequent period. The true object of the act of Assembly was to encourage agriculture and industry by protecting men in the enjoyments of>the profits of their labor. Under this principle it would be going too far to say that every person who voluntarily seats himself upon the lands of another shall be paid for the performance of labor which, perhaps, might not be required by the true owner of the soil; but, at the same time it ought to be considered that there may be a variety of instances of the occupancy of the land by innocent persons ultimately proving to possess the inferior title; and it was but an act of bare justice to say that persons so circumstanced, and who had been honestly and fairly making valuable improvements, as they supposed, upon their own land, should receive a compensation from the successful claimant. The entry upon the land in question was not tortious, because he did not violate the right of other persons. At the time the appellant first took possession of the land it was vacant, and indeed be seems to have manifested the first disposition to appropriate it.</p> <p>His survey, which is the commencement of his title, is long anterior to any act on the part of the appellee’s ancestor toward procuring a title. It is true he did not make his entry until after the date of the entry and grant of Shipp, hut he made it within the time mentioned by the act of Assembly, prescribing the mode which shall be pursued for the purpose of perfecting titles to occupant claims. These subsequent acts on the part of the appellant, evincing an early disposition to appropriate this land to his own use in a manner conforming to the laws of the land, ought, and do in reason and in justice sanctify the original entry. It is from that period, therefore, that his right to be paid for his improvements commenced.</p> <p>It has been and will no doubt be again contended that, although the appellant may be, in part, entitled to be paid for his improvements, yet it must be for those only which were made anterior to the service of the declaration in ejectment, which is considered as notice of an adversary claim. That this principle is manifestly unjust, it seems to me cannot with propriety be questioned. The effect of it would be to discourage agriculture, and produce a paucity of improvement throughout the country. It is considered fair that where a person occupies a tract of land to which he supposes he has a good title — and a man has a right to presume that, when he has taken the means prescribed by law to effect it — but which ultimately turns out to be deficient, he should be entitled to recover for all lasting and valuable improvements. The moment the idea is recognized that the right to recover shall cease with the notice of an adversary claim, that moment it is in effect said that so soon as a declaration in ejectment is served, no further improvement shall be made, because the defendant, who cannot possibly know what may be the event of the suit, will not hazard the making of improvements which he may not be permitted to enjoy, and which, if his adversary prevails, will not be remunerated.</p> <p>Laying the different acts of Assembly entirely out of the question, and I do not choose to advert to all of them, the appellant is entitled to recover at common law. Hardin’s Rep. 599. The acts of Assembly are not.intended to abridge the rights of the improver; they are only intended to support and confirm rights which before existed. And as the principles of justice and sound policy forbid the idea of making the single fact of notice the line of demarcation; and as the different statutory regulations on the subject of paying for improvements are wholly silent on that head, I humbly trust that this Court will not interpolate a principle so manifestly injurious to the best interest of the country.</p> <p>We will first consider this question as at common law. Suppose an action at common law were brought, what would be its form ? It would be an action of assumpsit for work and labor; and, to support it, the request of the defendant would be necessary to be established. 1 T. R. 20. There is not a more sound and universal maxim than that no man shall be charged upon a contract, but upon his own consent. There are some cases, indeed, where a court of equity has interfered and compelled the successful party to pay for the improvements ; but this has only been done where it was reasonable to presume that the improver labored under an honest belief that he was entitled to settle on the land. And, even in that case, to entitle the improver to recover, the improvements must be valuable, and made without notice of the adversary claim. 1 Wash. Rep. 336.</p> <p>Townsend is not entitled to recover for the improvements that were made before the entry of Shipp was made, because, until after that period he had no kind of title. It is true, he had caused a survey to be executed, but this is no appropriation of land. It is at best but a dubious act, and does not certainly evince a disposition to procure a title. He is not entitled to be paid for such as were made afterwards, and before his entry, because Shipp’s entry was record notice to him that there was an adverse claim; nor afterwards, because the land had been already appropriated by an entry and grant, and an ejectment actually served upon him. Hardin’s Rep. 497; 3 John. 512; 2 John. 272.</p> <p>The act of Assembly of 1797, ch. 43, § 3, declares that “any grantee or other person claiming by deed of conveyance founded upon a grant who shall be dispossessed by due course of law, the person so dispossessed shall be entitled to recover,” &c.</p> <p>The plaintiff cannot be entitled to the benefit of this Act, because of the absence of facts upon which that law is to operate. The Act of 1805 does not alter the principle; it only places those who are in possession under a lawful entry upon the same footing with those who have a grant; but, in neither case can the improver be entitled to recover, where that which was the foundation of the right to recover, viz. the entry or grant, were not made until actual notice of a conflicting claim.</p> <p>It will not be necessary to animadvert upon the Act of 1809, ch. 31, § 11, because it can only apply to posterior cases ; besides, if it is examined, it will not be found to conflict with the principles which we have assumed.</p>

\ >- Appeal. ) This was an action of detinue brought by the appellant to recover the possession of a negro boy named Seac. The defendant in the court below plead that the negro boy was free, and not a slave. Upon this plea, issue was joined, and a verdict and judgment was obtained by the appellee; to reverse which Edwards prosecuted this appeal.

<p>Appeal.</p> <p>This was an action on the case for a malicious prosecution brought by the appellant against the appellee in the Williamson Circuit Court.</p> <p>On the trial of the cause in the Circuit Court, the defendant, as a part of his evidence to prove probable cause, introduced a witness to prove what he, the appellee, had sworn to on the trial of the indictment against the appellant. This testimony was objected to by the appellant, who also contended that if it was received the witness should not be permitted to detail anything which had been sworn to by Wilson, except as to facts alone confined to his knowledge. But the objections were overruled and the witness permitted to state generally what had been deposed by Wilson; to which opinion the appellant took a bill of exceptions.</p> <p>The jury having found a verdict in favor of the appellee, the appellant moved for a new trial upon his own affidavit, stating that after the trial he discovered a material witness, viz. William Carson, by whom he could prove that Wilson had said that the appellant was innocent of the charge upon which he was indicted, but that he would prosecute him and hang him if he could. The affidavit further stated, that after the trial he had been informed and believed that two of the jurors who tried the cause, to wit: Elisha Hardeman and Samuel Shelburn, had said-before the cause came on that if they should be on the jury they would find a verdict in favor of the appellee. The Court overruled the motion, to which opinion the appellant also excepted.</p> <p>The cause was then removed into this Court by appeal.</p> <p>It is a general rule that whatever would be a good cause of challenge to a juror, if discovered before he is sworn, will be sufficient to set the verdict aside if not discovered until afterwards. Hardin’s Reports, 197. In vain may you talk about tbe excellence of the trial by jury if prejudice and partiality in one of the jurors is not a good cause to set the verdict aside. No man who submits his cause to the decision of any tribunal ought to be bound to submit to whatever determination is made, when it is evident that the triers are prejudiced in favor of his adversary.</p> <p>The jury should be above all exception. A declared opinion in favor of either party gives the other by law the right of a peremptory challenge. If, however, when the juror is called to the book to be sworn a knowledge of the objection exists and yet none is made, the party injured cannot be permitted to avail himself of the exception on a motion for a new trial. But it is otherwise where the objection is not known until after the verdict is returned into Court. 5 Bac. Abr. 245; 6 Do. 961; 7 Mod. 54; Salk. 645; 1 Cow. 112.</p> <p>It will, perhaps, be urged on the part of the appellant, that to make the partiality of a juror a good reason for granting a new trial, the fact upon which the motion is founded should be made to appear by other evidence than tbe affidavit of the party. To this I would reply, that no rule of practice requires it to be done, and that such a requisition would be manifestly unjust and oppressive. If any law existed to compel the informant to make an affidavit, there would be much reason in saying that the oath of the party would not be sufficient. No such compulsion, however, exists; consequently, from the necessity of the case, the evidence which the appellant offered is all that the law can reasonably require.</p> <p>Upon the other point, it seems to me, there can be no sort of difficulty. No case can be produced, where, upon the trial of the action for a malicious prosecution, evidence has been received of what had been sworn to by the prosecutor, except in the single case of the fact proved by the prosecutor, being known to no other person. The leading case upon' this subject goes expressly upon this principle. 6 Mod. 216. If no person is present at the time that the felony is said to have been committed but the defendant, his oath, upon the trial of the indictment, may be given in evidence to prove the felony. As this is certainly against the general principles of the law, we must look to the reason. And what is it P Simply because, from the nature of the transaction, better proof is not supposed to exist; and therefore, from necessity, the evidence is received. But the case is widely different where the evidence of the prosecutor is offered and received without any restriction. Bul. N. P. 14; 2 Esp. N. P. 282; 2 Peak’s Ev. 289 ; 2 Hay. Rep. 29.</p> <p>The action of malicious prosecution is not favored, and therefore, unless the Circuit Court have flagrantly erred, the judgment ought not to be reversed. It is true, that if the fact set forth in the affidavit of the appellant had been made to appear by indifferent testimonjq the Court perhaps ought to have granted a new trial. But there are several objections to the affidavit, as well as to the mode of proof. Suppose all the facts which the appellant has sworn to are false, could he be prosecuted for perjury ? The answer which must be given to this question is fully calculated to test the positions assumed by the counsel for the appellant. The affidavit does not state who gave the information. The whole subject, therefore, which it embraces is equivocal and uncertain. However false, it is impossible to convict the appellant of perjury; because, he cautiously brings forward the matter in such a way as to exclude the possibility of proof. As a good general rule, no affidavit ought to have any weight, in a judicial controversy, if, in the event that it is untrue, the person swearing to it cannot be found guilty of perjury.</p> <p>But, independent of this, the mode of proof is not sufficient. The verdict of a jury should not be set aside unless upon indifferent testimony, particularly where the motion is founded upon the partiality of a juror. It at least ought to appear that no better evidence could be procured, and that some good reason existed why the affidavit of other persons had not been produced.</p> <p>Upon the other point, we believe that the Circuit Court acted correctly. Whatever the rule once may have been, it is not now as is argued by the counsel for the appellant. Indeed it seems to us that there is much greater danger of injustice to the appellant, to admit the witnesses to detail what was proven by Wilson as to facts known to no other person, than to permit a detail generally of all he deposed to. . In the latter case, the danger of being injured by the perjury of the prosecutor is wholly avoided. The true rule at present is, that upon the trial of the action for a malicious prosecution, all that was sworn to upon the trial of the indictment may be given in evidence. Bul. N. P. 14.</p> <p>In this case, however, the evidence objected to does not appear in the record, and, for anything that appears, it was not material. The Court ought to presume that it was wholly immaterial, and did not affect the appellant; if so, although the admission of it was wrong, yet it can be no cause for reversing the judgment. To reverse the judgment, it is necessary for this court to be satisfied not only that the inferior court erred, but also, that by the occasion of that error the appellant was injured.</p>

<p>A person injured by a settlement of accounts, for tbe balance of which he has executed his bond, may come into a court of equity for a correction of errors, even after judgment on the bond, for it was not competent to impeach it in the court of law; but the burden of proof is on him, and he must particularly allege the errors which exist, and then produce satisfactory evidence to support these allegations. [Acc. Appleton v. Harwell, Cooke, 242; Love v. White, 4 Hay. 210; Jones v. Ward, 10 Y. 164; Stothart v. Burnet, Cooke, 417; McCain ». Vincent, 4 Hay. 81; Burdoine v. Shelton, 10 Y. 41; Sto. Eq. PI. § 800.]</p>

\ V Equity. ) The complainant states that the defendant, Lurry, represented himself entitled to a land warrant issued to one Parr, and contracted to sell it to the complainant, in consideration of which he executed his bill single for the sum of eighty-six dollars; that upon this bill single, a suit had been brought and a judgment recovered in the name of Lurry, though for the benefit of Sneed, to whom it had been sold, though not assigned, by the agent of Lurry.

\ v Equity. The bill stated that the complainant and Leonard Clifton were in partnership in North Carolina, and that disputes having arisen, they were referred to arbitrators; that the arbitrators awarded certain sums of money to be paid to the complainant by the defendant, Leonard, which had not been paid; and that he fraudulently, to avoid the payment thereof, conveyed his property to the other defendant, Edwin Clifton.

<p>The courts of equity are no more free from an observance of the commands of the Legislature than courts of law, and the construction of statutes is the same in one court as in the other. [Acc. Shelby v. Shelby, Cooke, 179, and cases there cited.]</p> <p>Statutes of limitations are instituted for the peace and quiet of the people, and courts have uniformly deemed themselves inflexibly bound by their provisions, and no exceptions can be made unless provided for by the Legislature. [Acc. 4 Y. 253; M. & Y. 361; 3 Y. 496.]</p> <p>A legislative intention to repeal is never presumed, nor are implied repeals encouraged; the provisions of a subsequent act must be inconsistent with those of a prior statute, else it cannot be said that the Legislature intended a repeal. [Acc. Furman v. Nichol, 3 Cold. 439, and Mayor, &c. v. Dearman, 2 Sn. 120, citing this case. See also Hockaday v. Wilson, 1 Head, 114; Cate v. State, 3 Sn. 120. And now, by Const. 1810, Art. 11, $ 17, a repealing act must recite the title or substance of the law repealed.]</p> <p>Every part of the same act should be taken into consideration, and all statutes made on the same subject, in order that it may be seen how far one statute repeals another, as well as to ascertain the meaning of the Legislature, by comparing different parts of the same and other acts on the same subject together. [Acc. Cooke, 258.]</p> <p>The Act of 1715, 48, 9 (Code 2281, 2786) is a bar to all actions against the heir after seven years from the ancestor’s death. [Acc. 6 Hay. 18; 11 Hum. 418; 3 Head, 368; all citing this case. 2 Tenn. 317.]</p>

<p>v > Chancery.</p> <p>The hill, after setting forth the equity which the complainant relied upon as the ground of relief, proceeded to state that a judgment had been recovered against him in Washington County, in the first judicial circuit, and that an execution had issued against him, directed to the sheriff of Lincoln County, in the fourth circuit. The prayer of the hill was for an injunction and general relief.</p> <p>The defendants pleaded, in abatement to the jurisdiction of the Court, that the bill had been filed in the fourth circuit, and that at the time the process issued they resided in the county of Washington, in the first circuit, and that it was served upon them in the county of Washington.</p>

\ >• Original Bill. ) This was a bill in equity to foreclose a mortgage. The bill alleged that Anderson Hunt, the ancestor of the present defendant, lived in the State of North Carolina, and that during his residence there the mortgage in question was executed by him to the complainants. None of the parties ever lived in this State.

V Ejectment. ) The land in controversy was granted in 1790, by the State of North Carolina, to Stockley Donelson, and by him conveyed to David Allison. The plaintiff claimed under a deed executed by Joshua B. Bond, attorney in fact for Allison. The power of attorney under which Bond conveyed, was acknowledged in 1797 before Hilary Baker, mayor of the city of Philadelphia.

Ejectnient. This was an ejectment brought to recover a tract of land lying in Franklin county. The plaintiff derived his title under a grant from the State of Tennessee to William Bean, dated the 8th day of December, 1808, upon an occupant entry made on the 3d day of August, 1807.

v > Chancery. This was a bill in equity, praying relief against a judgment recovered against Drew in Wilson County, by the defendant Clarke.

\ V Chancery. ) The bill stated that on the 8th day of February, 1794, Tschar-ner de Graffenreid, being possessed of a certain negro woman slave named Abby, made his last will and testament, and thereby loaned said slave to his son Tscharner de Graffenreid, the younger, during his natural life, together with her future increase; and if said Tscharner, the younger, should leave no child at the time of his death, said testator devised said slave and her increase to his sons…

v v Appeal. This was an action of assumpsit brought by Tabb, in his lifetime, against the appellant. The declaration contained four counts, — one for goods sold and delivered ; one for money paid ; one for money had and received ; and a count for an insimul computassent. The defendant pleaded non assumpsit.

\ >- Appeal. Eakin commenced a suit against Easly, before a justice of the peace, upon the following account: — “ William Easly to Moses Eakin, Dr. 1807, September, whiskey at sundry times, $0 93 To the hire of a mare from the 16th September to the 19th November, 1807, at 50 cents per day, 32 50 $33 43 Eakin recovered a judgment before the justice for the amount of his account, having proved it by his own oath ; from which Easly appealed to the County Court, where a judgment…

\ >■ Appeal. ) Goodloe commenced an action of assumpsit in the County Court of Davidson against Claiborne, in which he procured a verdict and judgment. Claiborne then appealed to the Circuit Court, and entered into a bond to prosecute the appeal with William T. Lewis, Thomas Napier, and William Christmas, his securities.

V Appeal. This was an action of assumpsit brought by the appellee against the appellant, in the Circuit Court of Williamson County. The declaration contained three counts, — 1. A count by the indorsee against the indorser of a promissory note in the common form. 2.

>• Appeal. Potts declared against Goodloe in an action of Trover.

\ v Appeal. This was an action of assumpsit for goods, wares, and merchandise sold and delivered; and for money laid out, expended and paid, for the use of the defendant.

<p>\ >- Appeal. ) ■</p> <p>This was an action on the case, brought by the appellee against the appellant, in the County Court of Davidson.</p> <p>The second count in the declaration was for a deceit in the sale of a horse. Upon the trial of the cause in the County Court, as appeared by a bill of exceptions, the appellant moved the Court to instruct the jury, that they could not, upon the second count, find in favor of the plaintiff,. unless they were satisfied from the evidence'that the defendant in that court represented the horse mentioned in such count as different from what', he knew him to be, or used some art to disguise his true situation; but the Court refused to give the instructions required.</p> <p>A verdict was found for the plaintiff in the inferior court, whereupon/ the defendant prosecuted a writ of error to the Circuit Court, where the opinion of the County Court was affirmed, and an appeal was then taken to this Court.</p> <p>argued that unsoundness in the article sold, at the time of the sale, formed no ground of itself for redress on the part of the vendee. In the sale of every description of personal property, in relation to the title, the law implied a warranty; but it was not so in regard to the quality of the thing sold. It would,, therefore, follow that where there was no warranty the vendor could not be made liable, unless he represented the article to be sound when he knew it to be otherwise, or used some art to disguise the true situation. 4 Blackstone’s Com. 455 ; 2 East. 314; 1 John. 129, 274 ; 4 John. 421.</p> <p>were stopped by the Court.</p>

j- Writ of Error. This was an action of debt for $ 400, brought by Ross against Jackson, in the County Court of Davidson County, to which the defendant pleaded payment and set-off. The jury found that the defendant was entitled to an offset of $396 50, and that there was a balance due the plaintiff of $ 3 50, for which they gave a verdict in damages.

\ > Appeal. This was an action of assumpsit brought by the appellee against the appellant in the County Court of Davidson, wherein he recovered a judgment for twenty-two hundred dollars. Erwin appealed to the Circuit Court, and upon the cause being there tried the jury rendered a verdict for twenty-six hundred dollars.

<p>Where a case is brought up by certiorari, and the judgment affirmed, six per cent interest only is allowed. [See Code 3137.]</p>

>• Appeal. ) This was an action of ejectment brought by the appellee against the appellant, and lately depending in the late Mero District Court. The Legislature by an Act passed in 1809 creating circuit courts, directed that all civil causes then depending in the superior courts should be transferred to &e circuit courts, viz.: That each cause should be sent to that county where the first-named defendant resided.

\ >- Appeal. This was an action of ejectment commenced by Weakly against Anderson for the recovery of one hundred and sixty-one acres of land. Upon the trial in the Circuit Court, Weakly gave in evidence that he claimed the land in controversy by virtue of an entry made in the county entry taker’s office under the provisions of the Act of 1801, which he re-entered on the 4th day of August, 1807, by virtue of the Act of 1806. 1 Hay. Rev. 391, § 38.

S WAppeal. Estes declared against Williams, in the Circuit Court of Maury County in an action of trespass vi et ar.mis, for taking sundry articles of personal property, to which he plead not guilty.

Chancery. The bill charged that the complainant and defendant held eight hundred acres of land as tenants in common on which there was a valuable spring, and that the defendant represented that should an equal division of quantity take place the spring would fall in the western part.

<p>\ v In Equity.</p>

\ >- Chancery. GeneRAL Winchester exhibited his bill in equity against John B. Evans and others, in the lifetime of Evans, setting forth that previous to the year one thousand seven hundred and ninety-four, he, for the firm of James and George Winchester, had dealings with and had purchased from the firm of Jackson and Evans, merchants, then residents of the city of Philadelphia, to a considerable amount; that in the month of December, 1793, he went to Philadelphia and paid…

Writ of Error. The plaintiff gave in evidence, in support of his title, a grant from the State of North Carolina, to Minos Cannon, dated in November, 1799, for the land in controversy, which had been duly registered; and also the transcript of the record of a judgment recovered in an original attachment, in the name of James Ross, against Cannon, in the County Court of Davidson, at the January sessions, 1794.

<p>Equity will relieve against mistakes in deeds. [Ace. Barnes v. Gregory, 1 Head, 231; Cromwell v. Winchester, 2 Head, 389; 2 Hum. 72; 9 Y. 266.]</p> <p>Equity will relieve against mistakes in records; certainly if the mistake appear of record. [Acc. Reid v. House, 2 Hum. 676.]</p> <p>If a sale of a warrant of survey be made by an agent, and the principal die afterwards and before assignment of the warrant, the purchaser’s title will not.be affected, the purchaser being regarded, in equity, as the real owner, from the time of the agreement.</p> <p>The Statute of Limitations does not begin to run against the owner of a land warrant, until there is a cause of action; nor, it seems, until the coming of age of such owner, although there were other heirs, co-owners, who had attained full age, and who had parted with their interests to the complainant before thfc statute attached. [Citing Hard. 366.]</p>

<p>For breach of a covenant of warranty, where there is no fraud, the measure of damages is the consideration price, with interest. [Acc. Elliott v. Thompson, 4 Hum. 99; 3 Head, 448. See Wilson v. Robertson, 1 Tenn. 464, and cases there cited, for the early rule.]</p> <p>Interest, by way of damages, has been adopted as the rule, in cases of contract for the conveyance of property, or for services performed, unattended with fraud; but a different rule will apply whenever it appears that dishonest or fraudulent practices have been used. [Acc. Noe v. Hodges, 5 Hum. 103, where this case is cited in the Reporter’s note.]</p> <p>The modern covenant to warrant and defend the title of land, includes a covenant of seisin of an indefeasible estate, and of a right to sell, and, as to the mode of redress, of quiet enjoyment. [Overruled, with its sequences, by Allison ». Allison, 1 Y. 16; Crutcher v. Stump, 5 Hay. 100; Randolph v. Meek, M. & Y. 61; where this case is cited; Ferriss v. Harshea, M. 6 Y. 48.]</p>

<p>Course and- distance, as well as quantity, are only means of ascertaining boundary, when others fail; if natural boundary, lines, or corners exist, they will be assumed as data in ascertaining others; and when it is proved that a corner once existed, it must be taken to be there, although it may not agree with the course and distance from the standing corners; for, in the nature of things, corners are subject to decay, or to be lost in the lapse of years.</p> <p>Equity will not rescind an exchange of lands, on the ground of mutual mistake of the contracting parties, as against a purchaser for a valuable consideration, and without notice.</p>

<p>Every judgment, whether foreign or domestic, is prima facie correct; and where a full and fair trial has taken place it should not be disturbed.</p> <p>A court of equity in this State will relieve against the judgment or decree of another State, in any case which would authorize such relief against a judgment of this State. [Acc. Winchester v. Evans & Jackson, Cooke, 420; S. C. 3 Hay. 305, 316; Wilson v. Robertson, 1 Tenn. 267; Estes v. Kyle, Meigs, 34.]</p> <p>Thus, where the bill sought to impeach a decree in equity pronounced by a court of North Caroling, and it appeared that a full and fair trial was not had, and it also appeared from the face of the decree that the court erred in point of law to the prejudice of the complainant, relief was granted.</p>

j >• Chancery. The defendant executed his bond to several persons for the conveyance of a tract of land. One of the obligees assigned his interest of one hundred and sixty-eight acres to the complainant, who thereupon commenced a suit in equity against Hadly to compel him to convey that quantity. To this bill the defendant filed a general demurrer.

<p>Writ of Error.</p>

j- Chancery. This was a bill in equity, brought by Lewis, to be relieved against a judgment recovered against him at law in the name of the defendant Flynn.

Appeal. This was an inquisition of a forcible entry and detainer commenced against the appellant, at the instance of Francis Gholson, before a justice of the peace.

<p>No judgment can be given against a garnishee until a judgment has been first rendered against the defendant debtor. ■</p> <p>Justices of the peace have no power to proceed by way of attachment by garnishment. [Changed by statute, Code 4173, 3479.]</p>

Writ of Error. This was an action of ejectment for a tract of land lying in the county of Maury.

<p>j- Appeal.</p> <p>This was an ejectment to recover a.tract of land in Williamson County.</p> <p>A bill of exception taken in the cause exhibited the following case: The lessor of the plaintiff produced a grant from the State of Tennessee to the heirs of William Craig, dated the first day of September, 1809, for the land demanded in the declaration, and proved that he was the heir of William Craig, and that the defendants were in possession of the land at the time the suit was commenced. He also gave in evidence an entry made with the entry taker of Davidson County as follows : —</p> <p>“No. 415, April 22, 1784. The heirs of William Craig enters a preemption of 640 acres of land, lying on the waters of Harpeth River, adjoining on the west and northwest, the land claimed by Major Absalom Tatum, running west and north for quantity ”; which entry includes the land covered by the grant. .</p> <p>The defendant gave in evidence a grant from the State of North Carolina to William Polke, dated the 10th day of March, 1786, for 1888 acres, and proved that it covered the land specified in the grant to the lessor of the plaintiff. He then gave in evidence a copy of an entry made in the books of the surveyor-general of the military lands, as follows: —</p> <p>“February 7, 1784. Colonel William Polke, 1888 acres lying on the main west fork of Harpeth River, on Daniel’s Fork, adjoining 'Major Tatum’s entry on said fork, beginning on Tatum’s northwest corner, and running east, west, &c. for quantity. Warrant No. 163 ; Location No. 8.” And proved that this entry covered the land mentioned in the plaintiff’s declaration, and that it was the same upon which the grant had issued to William Polke.</p> <p>No certificate was produced by the plaintiff to show that William Craig was entitled to a pre-emption, nor was there any evidence of any improvement having been made by or for him.</p> <p>Upon the .above statement of facts the Circuit Court was of opinion, and so directed the jury, that the entry of the plaintiff, although latest in da.te, ought to be preferred to the entry under which the defendants claim ; as an entry or location on a military warrant could not have any effect to give a title against another claim, before the act of the General Assembly of North Carolina, passed in 1784, directing the surveyor-general to keep regular books at Nashville, and declaring entries made elsewhere void, &c.</p> <p>A verdict and judgment having passed against the appellants, they prayed and obtained an appeal to this Court, and they now assign for error,</p> <p>1. The judgment of the inferior court ought to have been given in favor of the defendants in that Court, whereas it was given for the plaintiff.</p> <p>2. The Circuit Court erred in the opinion set forth in the bill of exceptions.</p> <p>were stopped by the Court.</p> <p>insisted that the circuit judge had given a correct opinion. Until the Act o'f 1784 was passed no entry-book was authorized to be kept, in which military entries could be placed. The entry under which the appellee claims was made before that law passed; and, inasmuch as the location of Polke could not give notice nor be considered as an entry until it was put upon the entry-book, it follows that Craig’s entry ought to prevail. It is possible that these military entries may be good, from the date of the location, against others in a similar situation, but they cannot be so against the entry of the appellee.</p>

RCaveat. Blount commenced this paveat to prevent the issuance of a grant to the defendant Eamsey, upon the following entry: — “No. 1608, Robert Kirkpatrick enters two thousand acres in Green County, on the south side of the land granted to the continental line of North Carolina, including the first mile tree on the west line, running west and south for complement, adjoining a large knob.

<p>By 1789, 57, 5 (Code 2789), all joint obligations and assumptions are made joint and several, and the law has been long settled, that on a several obligation, executed by two or more, the obligee may sue any one, without noticing the others.</p> <p>A note signed in the firm name of 0. Stump & Co. may be given in evidence under a declaration in debt against C. Stump alone without noticing the other members of the firm.</p>

Writ of Error. A suit was instituted in the Court of Pleas and Quarter Sessions for Williamson County, by the defendant in error, against one George W. Nielly, in which he recovered a judgment. Nielly appealed to. the Circuit Court, and gave the plaintiffs in error as his securities. Upon a trial being had in the Circuit Court, the judgment of the County Court was affirmed against Nielly alone.

<p>A consideration is necessary to be averred in pleading, and shown in proof, in relation to all contracts, either verbal or written, if not tinder seal. [Acc. 9 Y. 24, except negotiable paper.]</p> <p>Between verbal and unsealed written contracts, there is this distinction; in the first, the consideration is never presumed, and the onus probandi lies on the plaintiff; in the latter, the consideration is always presumed, and the onus lies on the defendant.</p> <p>The duty of the Court is to charge the law in the alternative, as the jury may find the fact to be one way or the other, and not to charge or give opinions on matters of fact, which the Constitution forbids.</p>

<p>ND Appeal.</p> <p>This was was an action of covenant brought by the appellee against the appellant, in the Circuit Court of Williamson County, upon the following obligation: —</p> <p>“ On the 6th day of May, 1812,1 promise to pay Samuel Jackson, or his order, seven hundred and thirteen dollars and three cents, with interest from the date, for value received, which may be discharged in tobacco, at three dollars and fifty cents per hundred weight, delivered at Nashville, and hemp at the Nashville price. Witness my hand and seal this 1st December, 1809. John Bond.” [Seal.]</p> <p>The declaration averred a breach of the covenant in not having delivered tobacco and hemp according to the agreement.</p> <p>The appellant appeared in defence of the action, and pleaded,</p> <p>1. That as to thirteen dollars and fifty-four cents, part of said sum of seven hundred and thirteen dollars and three cents, he had paid that much on the first day of May, 1812.</p> <p>2. That he on the 6th day of May, 1812, offered to deliver to the said Jackson good tobacco to the amount of the residue of said seven hundred and thirteen dollars and three cents, at three dollars and fifty cents per hundred weight, in discharge of said residue, at Nashville; and that the said Jackson then and there refused to receive the said tobacco of said John, &c.</p> <p>3. That he, on the 6 th day of May, 1812, at Nashville, offered to deliver to the said Jackson good tobacco at three dollars and fifty cents per hundred weight, and hemp at the Nashville price; but that the said Jackson refused then and there to receive the same, &c.</p> <p>4. That before the sixth day of May, 1812, viz. on the 15th day of April, 1812, it was agreed between the said John and the said Jackson, that the said Jackson would receive good tobacco at three dollars and fifty cents per hundred weight, in discharge of the said seven hundred and thirteen dollars and three cents, &c., at Nashville, on the 6th of May, 1812 ; and that, on the said 6th day of May, 1812, the said John, at Nashville, offered to deliver to said Jackson good tobacco at three dollars and fifty cents per hundred weight, in discharge of the said sum of seven hundred and thirteen dollars and three cents ; but the said Jackson refused to receive the same, &c.</p> <p>To the first and third pleas Jackson replied, and issues were thereupon formed to the country ; but to the second and fourth pleas he filed a general demurrer.</p> <p>On the trial of the cause in the Circuit Court the demurrers were sustained. Bond, then, under the issue formed by the third plea, offered evidence of a tender in tobacco; but the Court refused to receive the evidence and an exception was taken.</p> <p>A verdict and judgment having passed againt Bond, he appealed to this Court.</p> <p>contended that, from a fair and rational construction of the covenant, it must be inferred that the appellant was authorized to discharge it in either hemp or tobacco; and that the word and, from the manner in which it was used, imposed upon him no other nor further obligation than if the word or had been inserted. Viewing that as the propbr construction of the covenant, the Circuit Court erred, both in sustaining the demurrer to the second plea, and in the opinion contained in the bill of exception.</p> <p>But the strong point in this cause is that the Circuit Court improperly sustained the demurrer to the fourth plea. Whatever may be the proper construction of the words used in the covenant, it was certainly competent for the parties to modify it, or render it certain, by a subsequent agreement. Admitting Bond liable to pay both in tobacco and hemp, still Jackson might, if he chose, waive a compliance, and agree that the contract might be discharged in either of the articles. Jackson, by his agreement to take tobacco, was himself the cause that the covenant was not discharged according to its legal effect; and this Court ought to presume that if no such agreement had been entered into, there would have been no breach on the part of Bond. After Jackson has thus prevented, by his own act, a compliance, no principle of either law or justice will authorize him to recover. 1 Johns. C. E. 22 ; 3 Johns. Rep. 5.</p> <p>argued that, upon the first point, there could be no doubt but that the Circuit Court had decided properly. Here is a covenant to pay a certain sum of money in hemp and tobacco. As the proportion which is to be paid of either article is not mentioned, a fair construction would be to compel an equal payment in each. This would be a much more equitable contract than the one alleged on the other side. In this case the price of the tobacco is fixed; but the hemp is to be at the market price. If we suppose that Bond had a right to discharge the covenant in either of these articles, the consequence would be that if the market price of tobacco should be less than that stipulated, he would pay in that article, but if it should be greater he would pay in hemp. . It is true the parties were competent to make such an unequal agreement; but this Court ought not to force it upon Jackson by altering the agreement as reduced to writing and signed by the parties. No ambiguity exists.</p> <p>The fourth plea is clearly bad. This is an agreement by deed ; and by no principle of law are the Court authorized to permit the obligor to plead a verbal agreement, varying the contract as specified by the deed. 1 Dyer 51, a. Besides there is no mutuality in the agreement as pleaded. If Bond had not thought proper to deliver the tobacco, Jackson could have had no remedy upon the verbal undertaking; he would still have been compelled to resort to the deed. It follows, therefore, that both the agreement by Jackson to receive tobacco, and the agreement by Bond to pay tobacco, were without any consideration ; and neither of them can be enforced.</p>