Volume 38 — Tennessee Reports

<p>1. "Will. Testator’s knowledge of contents. Evidence. Practice. The fact that an illiterate testator had knowledge of the contents of the-paper propounded as his will, must he shown by such testimony as is-satisfactory to the jury; hut it is not indispensable that it should appear that such knowledge was acquired from hearing the will read.. In a case, however, where the testator could not write or read writing,, and the draftsman of the will was the principal legatee, the jury,, upon such a question, should be instructed, that information acquired-, from the draftsman would not be sufficient. In all suspicious cases,, the testimony as to the testators knowledge, should be clear and convincing ; equivalent, at least, to having heard the will read by a disinterested and unimpeachable party.</p> <p>2. Practice. Judicial discretion. The Supreme Court will not, as ai general rule, interfere with the rulings of an inferior court upon matters purely of discretion. To authorize such interference in any case, it must clearly appear that such discretion has been improperly exercised, and that great hardship and injustice was the result of it.</p> <p>8. Cases Cited. Patton vs. Allison, 7 Humph., 384; Cox vs. Cox, 4 Sneed, 88.</p>

<p>1. Ckimimal Law. Peace warrant. Husband and wife. A husband may demand sureties of the peace, in behalf of his wife, against any one from whom danger to her life or person may be justly apprehended, and may take the oath required for such purpose.</p> <p>2 Same. Same. Same. Parent and child. Guai'dian and ward. Master and slave. The individual occupying the relation of protector for those under disability, can lawfully demand sureties of the peace for such persons under disability, and make the necessary oath for that purpose; as the husband for the wife, the parent or guardian for infants of tender years or persons non compos mentis, the master for the slave, and in all other cases where the individual, whose life or person is in danger, is disqualified by law from taking the oath necessary to obtain the warrant, or from being prosecutor in the case.</p> <p>3. Same. Same. Feme covert. If sureties of the peace bo demanded against a feme covert, she must find security by her friends. She cannot be bound herself, because incapable of Binding herself by recognizance; and the same rule applies to infants.</p>

<p>Partnership. Liability of partners to each other for acts done for the benefit of the firm. Case in judgment. Where three persons associated themselves together as a joint stock company to lay out and huild a town, and two of them loaned a sum of money belonging to the company, in good faith for the benefit of the company, to aid in the erection of a certain manufactory, which, it was thought, would invite capital and labor to said town, and greatly promote its growth; hut said manufacturing adventure proved a failure, whereby the sum of money so loaned was lost to the company, it is held that such loss was the loss of the company, and not alone of the two members thereof so making the loan.</p>

EROM JOHNSON. TMs action of replevin is from tbe Circuit Court of Johnson county. At the March Term, 1858, before Judge Patterson, verdict and judgment were for the defendant. The plaintiff appealed in error.

FROM SULLIVAN. This action of debt is from the Circuit Court of Sullivan county. At the July Term, 1856, before Judge PATTERSON, verdict and judgment were for the plaintiff. The defendant appealed in error.

FROM ICN0X. This action of trespass quare clausum fregit is from the Circuit Court of Knox - county. At the October Term, 1857, before Judge Welcker, verdict and judgment were for the defendant. The plaintiff appealed in error.

EROM GRAINGER. This was an agreed case, submitted to the Circuit Court of Grainger, to test the validity of the charter of the town of Morristown, ¡ which was incorporated under the provisions of the act of 1849, ch. 17. The question arose upon a motion on behalf of the plaintiff to have certain real estate of the defendant condemned and sold for corporation taxes. At the August Term, 1858, Judge Turley disallowed the motion. The plaintiff appealed in error.

EROM COCKE. This action of assumpsit is from the Circuit Court of Cocke county. At the April Term, 1858, before Judge PatteksoN, verdict and judgment were for the defendant. The plaintiff appealed in error.

EROM. HAMI1TON. This bill was filed in Chancery at Harrison, for the purposes stated in tbe opinion. At the March Term, 1858, Chancellor Van Dyke gave a decree for complainant. Defendants appealed.

<p>FROM HAMILTON.</p> <p>This cause is from the Chancery Court of Ohatta-nooga. At tbe July Term, 1858, Chancellor VAN Dyke dismissed the bill. The . complainant appealed.</p>

FROM MARION. The prisoner was indicted and convicted before Judge Gaut, in the Circuit Court of Marion, of the offence of placing obstructions upon a railroad. He was sentenced to the penitentiary, and, to reverse the judgment, ho appealed in error.

EROM BLEDSOE. This action of ejectment is from tbe Circuit Court of [Bledsoe county. At tbe July Term, 1856, before Judge Gaut, verdict and judgment were for tbe plaintiff. Tbe defendant appealed in error.

I’ROM POLK. This action of debt was commenced before a justice of the peace of Polk county, by Hannah, as overseer of a public road, against Sloan, to recover the amount fixed by statute for failing to work upon the road. In the Circuit Court of said county, before Judge Haut, ver-diet and judgment were against the defendant, from wbicb he appealed in error.

EROM SEVIER. The plaintiff in error appeals from a judgment of the Circuit Court of Sevier county, Judge Tueley presiding, upon a conviction of assault and battery.

ER0M MORGAN. This action of debt is from the Circuit Court of Morgan county. At the November Term, 1857, before Judge Turley, verdict and judgment were for the defendants. The plaintiffs appealed in error..

EROM GRAINGER. Tbe prisoner, a slave, was indicted in the Circuit Court of Grainger county, for murder. At the April. Term, 1858, before Judge Tukley, he was tried, convicted, and condemned to suffer death. He appealed in. error to this Court.

FROM BRADLEY. This action on the case is from the Circuit Court of Bradley county. At the September Term, 1858, before Judge G-aut, verdict and judgment were for the defendant. The plaintiff appealed in error.

<p>1. Pbocess. Service of . Counterpart of a summons was issued against Garret H. Graham, administrator of John Graham, deceased. The sheriff executed said writ on Jared H. Graham, administrator of John Graham, deceased, and made due return thereof. The latter was the real party, hut his name was not properly given in the writ. Hold, that this was a valid service of the summons on Jared H. Graham, and he was guilty of gross negligence in not, at once, making his defence, if he had any.</p> <p>2. Same. Same. Waiver. The sheriff stated to the defendant that he knew no such man as Garret H. Graham; and when asked by Jared H. what he intended to do, ho replied that he should return the summons with the facts upon it. Jared H. Graham was at Court. Under the advice of counsel he failed to make defence, and judgment by default was taken against him. He was fully apprised of the judgment by default before final judgment — appeared and defended the case upon the trial, at the execution of the writ of enquiry — introduced evidence-made various motions in the case, and filed a bill of exceptions. He failed to have the judgment by default set aside. This was a waiver of the service of process, if not served, and he could not thereafter be hoard to say that it was not executed on him.</p> <p>3. Same. Judgment ly default set aside for want of service of process. If judgment by default is taken against a party without service of process, the Court has power and will set aside such judgment, upon a proper application made by such party.</p> <p>4. Chancery. Jurisdiction. Remedy at law. If a person has a perfect remedy at law, of which ho is not deprived by fraud, or accident, or the act of the opposite party, a Court of Chancery cannot grant him relief.</p>

<p>1. Evidence. Plat annexed. Marked boundary will control. A plat annexed to a partition, or grant, is competent evidence to he looked to in ascertaining the true boundary of the land set apart; but the party is entitled to the lands actually appropriated, and if the land has been actually surveyed, and the lines marked different from the plat, the marked boundary will control.</p> <p>2. Boundaky. Statute of limitations. Act of 1819, $ 1. If, at the time of the execution of a deed, the linos are marked, and the boundary thus made varies from the lines of the previous conveyances under which the bargainor claims title; and the lines marked are known and recognized by the parties as the true boundary of the land, an adverse possession of such land for a period of seven years, claiming up to the new boundary thus made, will vest an estate in fee in the conveyee.</p>

<p>FROM M’MINN.</p> <p>This cause was tried at the December Term, 1857, Gaut, J., presiding. Yerdict and judgment for defendant. The plaintiff appealed.</p>

<p>1. ChaucerT. Jurisdiction. Execution. Sale of a remainder,- or re-versionary interest in realty. A remainder, or reversionary interest' in real estate, can be sold by an execution at law. A bill in Chancery is not necessary to reach such interest, and will be dismissed upon demurrer. The remedy at law, is complete, and the Chancery Court has no' jurisdiction.</p> <p>2. Same. Same. Waiver of jurisdiction. Act of 1852, eh. 365. Although a demand may be, purely, a legal one, an order pro confesso-, or an answer to the merits, is a waiver, under the act of 1852, ch. 365,. of the question of jurisdiction.</p> <p>3. EXECUTION. Practice. Sheriff. Remedy when there is doubt as to the proper disposition of money raised on several executions. If the ' sheriff has raised money, under several executions issued from the same Court, and is at a loss liow to distribute it, the Court will, in a summary way, upon the facts stated in the return, advise how it should bo distributed. It has the power over its suitors, and will so appropriate the money as to bind them, and protect the sheriff.</p>

EROM GREENE.- Debt, from the Circuit Court of Grreene county. Verdict and judgment below for the plaintiff, and appeal in error by defendant,

FROM HAMILTON. The plaintiff in error was fined by the recorder of Chattanooga for a violation of a town ordinance. He brought the matter by writ of certiorari before the Circuit Court of Hamilton county. The Court rendered judgment dismissing the petition, from which petitioner appealed in error.

<p>PROM KNOX.</p> <p>This cause was tried before Luckey, Chancellor, who dismissed the bill. The complainant appealed.</p>

<p>FROM M’MINN.</p> <p>This cause is from the Chancery Court at Athens. Decree below by Chancellor VAN Dyke, for the defendants. Complainant appealed.</p>

EROM KNOX. This bill was filed in the Chancery Court at Knoxville, for the adjustment of a partnership account. At the July Term, 1858, Chancellor Lucky rendered a decree defining the rights of the parties, from which complainant and one of the defendants appealed.

FROM SEVIER. This action of debt is from the Circuit Court of Sevier county. At the July Term, 1858, before Judge Tueley, verdict and judgment were for the plaintiff. The defendant appealed in error.

<p>FROM MARION.</p> <p>This cause was heard before Chancellor Van Dyke, at the September Term, 1858. The Court decreed for the complainant. The defendant appealed.</p>

<p>EROM COCKE.</p> <p>At tbe September Term, 1858, of the Chancery Court at Newport, Chancellor Lucky pronounced a decree for the defendant. The complainant appealed.</p>

PROM HAMILTON. This cause was tried in tbe Chancery Court at Harrison. A decree was rendered at tbe July Term, 1858, for tbe defendants. Yan Dyke, Chancellor, presiding. Tbe complainant appealed.

<p>FROM M’MINN.</p> <p>Upon the hearing, Chancellor Williams decreed for the complainants. The defendants appealed.</p>

FROM JOHNSON. Action of replevin, commenced before a justice of the peace. It was appealed to the Circuit Court, where there was judgment for the plaintiff, at the November Term, 1857, Patterson, Judge, presiding.

<p>PROM KNOX.</p> <p>Ejectment. Judgment for tbe plaintiff, at tbe June Term, 1857. Swan, J., presiding.</p>

<p>Fraudulent Conveyances. Debtor and Creditor. The mere fact that a credit of one, two and three years is given upon a sale of land by one indebted, will not of itself, render such sale fraudulent in law.</p>

FROM CLAIBORNE. This was a bill for freedom, filed in the Chancery Court at Tazewell. At the December Term, 1857, Chancellor Luchy dismissed the bill. The complainant appealed.

FROM HAMILTON. This was a petition for certiorari and supersedeas, filed in the Circuit Court of Hamilton County. At the July Term, 1858, Judge G-aut, dismissed the petition. The petitioner appealed.

EROM M’MINN. The prisoner was indicted in tbe Circuit Court of McMinn county, for receiving goods, knowing them to have been stolen. At tbe December Term, 1857, before Judge Gaut, be was convicted and sentenced to three years confinement in tbe penitentiary. He appealed in error.

FROM KNOX. This was a bill filed by the complainant as administrator of the estate of John E. Orippen, deceased, to sell the land and slaves of said estate for the payment of debts. At the July Term, 1858, Chancellor Lucky gave a decree authorizing the sale, from which the widow and heirs appealed.

EROM CLAIBORNE. The prisoner was indicted in the Circuit Court of Claiborne county for grand larceny.. At „the January Term, 1857, before Judge Turley, be was convicted and sentenced to suffer confinement in tbe penitentiary for tbe term of three years. He appealed in error to this Court.

EROM GRAINGER. This action on tbe case is from the Circuit Court of Grainger county. At the December Term, 1857, before Judge Turley, verdict and judgment were for the defendant. The plaintiff appealed in error.

EROM JEFFERSON. This action of forcible entry and detainer is from the Circuit Court of Jefferson county. At the April Term, 1858, before Judge Tueley, verdict and judgment were for tbe defendant. Tbe plaintiff appealed in error.

ER.0M HAWKINS. This was an appeal in error, bj the prisoner, from a judgment of the Circuit Court of Hawkin’s county, upon a conviction under § 41 of- the felony code of 1829, for fraudulently passing a forged instrument.

EROM KNOX. This was a contest by bill and cross-bill in the Chancery Court at Knoxville, between J. S. Moffitt, on the one part, and Neuffer, Bronsonj et al., on the other, for priority of satisfaction out of certain property conveyed to each of the parties in mortgage, as creditors of W. W. Williams, an absconding debtor. In the Court below, the Chancellor decreed for Moffitt, from which the other parties appealed.

EROM KNOX. This cause is from tbe Chancery Court at Knoxville. The bill was demurred to, and the demurrer allowed by Chancellor Lucky, from which complainant appealed.

EROM MARION. This action of ejectment is from the Circuit Court of Marion county. The parties agreed to submit the matters in controversy to the decision of arbitrators, reserving the right of appeal to this Court. The award of the arbitrators was for the plaintiffs, and was produced in Court and adopted as the judgment thereof. The defendants appealed.

PROM HAWKINS. This action of assumpsit is from the Circuit Court of Hawkins county. At the May Term, 1858, before PatteRSON, J., verdict and judgment were for the plaintiffs. Defendant appealed in error.

EROM WASHINGTON. The plaintiff in error appeals from a judgment of the Circuit Court of Washington county, upon a conviction of tbe offence of running a borse race along a public road.

FROM KNOX. Trespass vi et armis from the Circuit Court of Knox county. At the October Term, 1857, before Judge Welcker, verdict and judgment were for the plaintiff. The defendant appealed in error.

EROM HAMILTON. Action on the case from the Law Court of Chatta-' nooga. Verdict and judgment below for the plaintiff Kelly, Gaut, J., presiding, and appeal in error by defendant.-

FROM CAMPBELL. Indictment in the Circuit Court of Campbell county, for the sale of noxious provisions by the agent of defendant. At the May Term, 1868, before Turley, J., defendant was convicted and fined. He appealed in error.

EROM KNOX. Action of debt, from the Circuit Court of Knox county. At the October Term, 1857, before Turley, J., verdict and judgment were for the defendant. The plaintiff appealed in error.

EROM HAWKINS. This action of ejectment is from the Circuit Court of Hawkins county. Verdict and judgment below were for the plaintiff. The defendant appealed in error.

FROM KNOX. Action on the case from the Circuit Court of Knox county. Verdict and judgment for the plaintiff, at the July Term, 1858, Ga.üt, J., presiding. Appeal in error by defendant.

<p>1. School Lands. State holds them as trustee. The title to the lands in Tennessee, set apart hy Congress for the use of schools, vested in the State, as a corporation, coupled with a trust. The State is merely a trustee in. relation to these lands, hound hy the restrictions of the acts of Congress, and the children of the respective townships are the beneficiaries.</p> <p>2. Same. Lease of. School Cmnmissioners. Case in judgment. The School Commissioners have no power to lease the school lands for a longer period than is prescribed hy law. If a lease is made for a longer term than the law authorizes, it is void, and will he set aside •upon a hill in equity. The act of 1843, ch. 46, passed hy Congress, authorized the Legislature, in case it should he deemed inexpedient to sell them, to make provision for leasing the school lands for any term not exceeding four years. The Legislature, hy the act of 1850, authorized the lease of the unsold school lands in Polk county, hut fixed no limit as to time. The school commissioners for the 8th district of said county leased their school lands for the period of ninety-nine years. Held, that said lease is in contravention of the act of Congress, and void.</p> <p>3. Samis. Sale of. Case in judgment. A sale of school lands previously leased is unauthorized hy law, and the sale is void; and this is so, although the lease itself may he a nullity. By the aet of 1843, ch. 356, Congress authorized the State, upon certain conditions, to sell the school lands. The Legislature, hy the act of 1844, ch. 104, amended hy the act of 1846, ch. 121, in pursuance of the power .given hy Congress, made provision for the sale of these lands. Under these acts certain school lands in Polk county were sold, and the sale confirmed; hut before the sale was made, the school commissioners, under the act of 1850, leased said lands for ninety-nine years. Held, that the sale was void, and communicated no title to the purchaser.</p> <p>4. Same. Grant. By whom questioned. A person whose claim or interest originates subsequent to the issuance of a gx-ant hy the State cannot question its validity,; hut it may he set aside in favor of an older special entry upon which a younger grant has issued. This principle does not affect the title to the school lands. The title to them is older, and is held hy the State and commissioners, as trustees for the common schools of the township in which they arc located.</p> <p>5. Chancery Practice. Bill of review. Statute of limitations. A hill that assumes 'that a sale made under a judicial proceeding is ahso-lutely void, and seeks to set aside and annul, and not to. review and correct it, is not a bill of review, and is not barred by the lapse of three years from the termination of said proceeding.</p>

EROM WILSON. Decree by Ridley, Chancellor, dismissing the bill at the July Term, 1858. The complainants appealed. The facts are fully stated in the opinion of the Court. argued. 1. The bill of sale made by Leyisa Bowen to John H. Bowen was never delivered. She retained it, and from the time of its execution, until some two years after her marriage with Major Saunders, it is not again heard of. And the deed not being delivered, and unregistered, was wholly inoperative.

EROM SUMNER. Yerdict and judgment at tbe October Term, 1858, for $5,000. Motion for a new trial overruled, TurNER, J., presiding. The defendant appealed. argued j 1. The damages are excessive. Held: that in assumpsit for breach of a promise to marry, evidence of ^eduction is not admissible in aggravation of damages,” and quotes several authorities.

<p>1. Pleading. Pleas struck out. Defence under informal plea. Immaterial pleas may be struck out by order of the Court. But if a plea be improperly struck out, and a party is permitted, under a less appropriate plea, to avail himself, fully, of all the matters of defence upon -which he relies, the rejection of the plea does not constitute error affecting the merits, for which the judgment will be reversed.</p> <p>2. Perry and ferryman. Liability of ferryman. Common carrier. A ferryman is liable as a common carrier. The keeper of a public ferry is bound to have a boat, safe and sufficient, for all the purposes incident to his employment. He is likewise bound, at all times, to have a skilful ferryman, and a sufficient force to manage the boat; and to take proper care of persons, and all kind of property received for transportation. And for all loss^r injury occasioned by neglect of these duties and precautions, he is liable.</p>

EROM RÜTHEREORD. The complainant, Sugg, filed his original bill attaching the judgment mentioned in the opinion. The defendant, John Powell, filed a cross-bill, claiming that he held the note upon which said judgment was founded, as collateral security to indemnify him as surety on a note of A. J. Powell to one T. B. Marks. Chancellor Ridley decreed for John Powell. Sugg appealed.

EROM DAVIDSON. This cause was beard upon demurrer, before FRIER-SON, Chancellor, at tbe December Term, 1858. Tbe demurrer was disallowed, and tbe defendants appealed under section 315T of the Code.

<p>PROM DICKSON.</p> <p>Chancellor Pavatt decreed for the defendant. The complainant appealed.</p>

FROM DAVIDSON. Decree for the complainant, before Emerson, Chancellor, at the November Term, 1858. The defendant appealed. The facts are stated by the Court. said: 1. This case would present no difficulty even on the bill and answer alone. The answer admits enough to convict the defendant of improper haste, if not actual fraud, in procuring the deed, and states circumstances utterly inconsistent with the defendant’s assertion that the sale was in gross.

PROM DAVIDSON. The bill was dismissed upon demurrer by Frierson, Chancellor, at the November Term, 1858. The complainants appealed. said: On the fact of champerty appearing in either of the modes pointed out in the law, the suit must be dismissed. Weedon v. Wallace, Meigs R., 286- to 296'; Vincent v. Ashley, 5 Hum., 593; Webb v. Armstrong, 5 Hum., 379. Are these suits still pending? If so, then there is no further questions which need be noticed.

<p>mOM ERANKLIN.</p> <p>Ridley, Chancellor, pronounced a decree for the defendant, Erizzell, at the November Term, 1858. The complainant appealed.</p>

EROM MONTGOMERY. Verdict and judgment for the plaintiff,. Davidson, J., presiding. The defendants appealed. The facts are stated in the opinion of the Court. said: No question is better settled in this State, than that; a party, for whose accommodation paper is indorsed-, without any restriction as to the use to be made of it,, may transfer it in payment of a pre-existing debt, or as collateral security for the loan of money or credit.

FROM stewart. This cause was tried upon demurrer, at the- April Term, 1858, before FRIERSON, Chancellor, who dismissed the bill. The complainants appealed.

EROM OVERTON. This cause was tried at the April Term, 1858, before Van Dye®, Chancellor, who decreed for the complainant. The defendants appealed.

<p>FROM LINCOLN.</p> <p>This cause resulted in a verdict for the defendant., Makohbanks, J., presiding.- The plaintiff appealed.</p>

EROM PUTNAM. This cause was tried before Goodall, J., at the March Term, 1858. Verdict and judgment for the defendant. The plaintiffs appealed.

<p>1. Shebito. What-amounis to a payment. A sheriff or other collecting officer has no power to receive anything in satisfaction of a claim placed in his hands for collection hut money, or hank notes circulating as such, without authority from the plaintiff. A payment in any other way is no satisfaction of the judgment, and the plaintiff may proceed against the debtor.</p> <p>2. Same. Is Haile to the plaintiff. Deputy. The officer, however, would have no right to make this objection in a proceeding against him. His liability would he the same as if he had received the money. And upon principle, an officer would he hound to the same extent, by the act of his deputy.</p> <p>S. Same. Sureties not hound. Sureties are only hound for the official acts of their principal, and may go behind the act and test their liability by the real transaction. They may show that the act complained of was outside of, and not authorized by his office. If so, they are not liable.</p> <p>4. Judgment. Cannot he set aside as to one and stand against others. A judgment cannot be divided. If it is correct against one partyr but erroneous as to others, it cannot be affirmed as to him, and set aside as to the others. There must be a general reversal.</p>

PROM HILES. This cause was tried before Martin, J., and resulted in a verdict for the plaintiff. The defendant appealed.

<p>Gift. Inter vivos. Choses in action and money are the subject of a valid donation inter vivos. An endorsement, or mere delivery accompanied by -words of donation, will be sufficient to pass the title, and vest in the donee a property in them.</p>

FROM WHITB. The defendant was indicted for an assault and battery. He plead a former conviction before a justice of the peace. To this plea the Attorney General put in a demurrer, which was overruled by the Court. Garden-hire, J., presiding. The State having declined to reply to the plea, the defendant was discharged. The State appealed.

FROM JACKSOK. This cause was heard before Goodall, J., at the March Term, 1858. Verdict, and judgment for the defendant. The plaintiff appealed.

PROM SMITH. Ridley, Chancellor, pronounced a decree for the complainants, and ordered an account to be taken by the clerk and master. The defendant, Smith, appealed.

<p>1. Criminal Law. Indictment. Finding of the grand jury. The grand jury cannot find a part of the same charge to be true and another part false, hut must either maintain or reject the whole. Therefore, on an indictment for murder they cannot find a true hill for manslaughter.</p> <p>2. Same. Same. Same. When different counts. This rule does not extend to an indictment joining different counts, as each count is regarded as containing a distinct charge.</p> <p>3. Samm. Same. Same. Grand jury under the control of the Court. The grand jury are under the control of the Court. It is the province and duty of the Court to see that the finding is proper in point of law, and if not, the Court may recommit an improper or imperfect finding, and may, if necessary, exercise the power of compelling a proper discharge of duty on the part of the grand jury.</p> <p>4. Same. Duty of the grand jury. The grand jury may safely, as agen-eral rule, act upon the presumption that the law officer of the government has investigated the facts, and described the offence properly in the indictment; and their duty is, simply, to inquire whether or not a prima facie case is made out, as charged in the indictment.</p>

FROM BEDFORD. This cause was tried at the August Term, 1858, of the Circuit Court, DavidsoN, J., presiding. Yerdict and judgment for the defendant. The plaintiff appealed.]

FROM SUMNER-. This cause was tried at the October Term, 1858, before Turner, J. A motion for a new trial having been overruled, the defendant appealed. 1.

EROM SMITH. This bill was filed by the administrator of Lodwick Yaden, for a construction of the will of his father, William Yaden, and for a collation of advancements. Held: that Lodwick Yaden took only a life estate in the slaves, under his father’s will, with remainder to his children.

FROM DAVIDSON, This cause was tried before FriersoN, Chancellor, at the May Term, 1858, The Chancellor decreed for the complainant, Georgetta C. Wilkinson, except as to the proceeds of the negro man. The complainants in the cross-bill appealed.

PROM WII.S0N. The original bill was filed by the complainant to recover certain slaves claimed by her under the law of Virginia. Held: “where there has been a breach of the warranty of a slave, and the purchaser has been deprived of the paramount title, the measure of damages for the breach of such warranty, is the price paid for the slave.” Such is the doctrine of the Alabama Court. Rowland v. Shelton, 25 Alabama, 217. The Courts of Kentucky hold the same doctrine.

FROM WHITB. This cause was heard at the March Term, 1858, before Chancellor VAN Dyke, who dismissed the bill. The defendant appealed. cited and commented upon the Act of 1801, ch. 25, § 2; Act of 1715, ch. 38, § 8; 5 Hay., 228-9; 3 Ter., 343; 3 I-Ium., 118; 6 Hum., 215; 9 Hum., 561; 1 Yer., 1; 1 Hum., 496; 9 Hum,, 9; Statute of 29 Charles 2, eh. 3, § 10.

<p>3?R0M SMITH.</p> <p>This cause was tried before Ga.RDENHIRE, J., at the November Term, 1858. The defendant appealed.</p>

EROM WHITE. The plaintiff in error was presented for gaming.

PROM SMITH. At tbe trial term tbe plaintiff in error asked leave to file this plea: “And tbe defendant, James W. Grissom, comes and defends tbe wrong and injury, when, &c., and for plea says, that at tbe time of endorsing, as security, tbe said promissory notes declared on, they were both blank as to tbe amount, and that sometime subsequent to the execution thereof by this defendant, and in bis absence, and without bis assent or authority, said blanks were filled up in one…

PROM WHITB. This cause was tried at the September Term, 1858, before McHeery, special Judge, selected and agreed upon by the parties, the presiding Judge, GardeNHIRE, being incompetent. The jury returned a verdict for one cent damages, and the plaintiffs appealed.

FROM JACKSON. The demurrer to the plea of the defendant having been sustained by Goodall, J, and judgment final rendered, the defendant appealed. said: 1st. The Court has no power after the adjournment of Court, or after the adjournment of the term, to make any addition to, or alteration of the record. Clark v. Lary, 3 Sneed, 81; Staggs v. The State, 8 Hum., page 372-5. 2d. The laws authorizing forfeitures against witnesses are highly penal, and must be strictly pursued.

EROM DEKALB. This cause was tried at the April Term, 1858, before Guodall, J., and judgment having been rendered in favor of the defendants, the plaintiff appealed.

PROM OVERTON. This was an application for dower. Chancellor Van Dyke pronounced a decree in favor of the complainants, at the April Term, 1858. The defendants appealed. cited Q-ourley v. Thompson, 8* Sneed, 8*92; Williams r. Williams, 10 Yer., 25; 1 Jar., on Wills, 731, 733; Oombs v. Young, 4 Yer., 225; 1 Bl. Com., 87; 2 Bl. Com., 129, 315, 316*; 4 Kent’s Com., 35, 38; Act of 1784, ch. 22, § 8. cited 4 Kent’s Com., 30, 38, 39, 67, 40; Reeves Dorn.. Eel., 41, 54, 56; 5 Hay.

PROM WHITB. This cause was tried at the March Term, 1858, before VAN Dyee, Chancellor, who ordered an account between the partners. The defendant appealed.

EROM EENTRESS. This cause was heard on bill and cross-bill. At the April Term, 1858, a decree was pronounced by Chan-eellor VAN Dyke, from which both parties appealed. The facts are stated in the opinion of the Court. argued: The guardian acted outside of her plain duty, and the minor had a right to disaffirm any contract made for her, and we do not think the Court of Chancery can compel the minor or her representative to take the realty against consent.

ER.OM OVERTON. Several bills were filed by • tbe creditors of Maxwell, attaching bis property. The main controversy was as to whether Lea had priority of satisfaction over the other creditors. Chancellor Van Dyke was of opinion that tbe levy of bis attachment was valid, and so decreed. The other creditors appealed.

<p>EROM DEKADB.</p> <p>There were verdict and judgment for the defendants at the October Term, 1858, MURRAY, J., presiding. The plaintiff appealed.</p>

PROM OVERTON. The defendant was sued for a breach of warranty in the sale of a slave. The jury were sworn with uplifted hands, no exception being taken at the time by the defendant'! or his counsel. Various exceptions were taken to the evidence, in the progress of the trial, which are referred to in the opinion of the Court. The cause was tried before Goodall, J., at the February Term, 1858. There were verdict and judgment for the plaintiff. The defendant appealed.

EROM DEKALB. This was a motion for failing to return an execution within thirty days. The Court, Murray, J., presiding, refused the motion. The plaintiff appealed.

PROM OVERTON. This cause came before the Court, Gardenhire, J., presiding, at the September Term, 1858, upon a motion to dismiss the suit. The Court sustained the motion, and the plaintiff appealed. said: This action of debt was commenced in the Circuit Court of Overton, on the - of December, 1857.

EROM OVERTON. This cause was heard before Chancellor Yan DyKE, at the April Term, 1858. A decree was pronounced in fayor of the complainants. The defendants appealed.

FROM WHITE. At tbe September Term, 1858, Chancellor Vajt Dyke pronounced a decree in favor of the complainant. The facts are stated in the opinion of the Court.

PROM OVERTON. The defendant pleaded in abatement, that the prosecutor was an infant. The Attorney General, T. H. Williams, demurred to the plea. The Court, Goodall, J., presiding, overruled the demurrer, and quashed the indictment. The State appealed. argued that: The indictment in this case was quashed on the ground, that the prosecutor was a minor, under the age of twenty-one years. Can an infant bo a prosecutor ?

EROM DEKALB. His Hon. Judge Goodall was of opinion, and so instructed the jury, that the lien of the landlord was not superior to the claim of the debtor under the exemption laws of the State. The defendant appealed. argued that: By the act of 1820, ch. 11, § 1, any officer levying upon property exempt from execution is liable to an action at the instance of the party aggrieved. This corn was exempt from execution. Acts 1855-6, ch. 77, §§ 1 and 2.

FROM SMITH. This cause was tried before Goodall, J., and resulted in a verdict for the plaintiff. The defendant appealed.

<p>Attachment. Deed of trust. Purchase of the trust property. If property is conveyed by deed of trust to secure a debt, and a third person purchase said property, of the maker of the deed, subject to the trust in favor of the 'beneficiaries, such purchase extinguishes the right of the debtor, and a subsequent attaching creditor acquires no lien upon the property. '</p>

FROM OVERTON. Original and cross-bills were filed, and the- canses; were finally heard at a Special Term of the- Chancery-Court, held in November, 1857, • before Chancellor Yan. Dyke. The defendant, Hinds, appealed..

EROM WILS0N. This cause was heard before Chancellor Ridley, at the January Term, 1858. The defendants appealed. The facts are fully stated in the opinion of the Court.

<p>Stayor. Written authority to the justice. Estoppel ly deed. If a party authorize a justice to enter his name as stayor to certain judgments, by an informal instrument of writing which does not bind him, but at the same time accepts a mortgage from the judgment debtor to in - demnify him as such stayor, he is estopped by the recitals of the deed to deny his liability.</p>

<p>FROM CANNON.</p> <p>Final judgment was rendered against tbe defendant, at tbe June Term, 1858, Davidson, J., presiding. He appealed in error.</p>

PROM CANNON. The justice rendered a judgment for $90.54, upon motion, in favor of the plaintiff. The defendant appealed to the Circuit Court, Davidson, J., presiding, where, upon motion, the justice’s judgment was quashed. The plaintiff appealed in error to this Court.

EROM CANNON. At the October Term, 1858, Davidson, J., presiding, the petition was ' dismissed, and judgment rendered for the costs. The Court refused to render judgment for the debt, but awarded a procedendo to the justice. The plaintiff appealed.

EROM CANNON. The motion to dismiss the petition was overruled by his honor, Judge Davidson; and the plaintiffs appealed.

<p>PROM BEDPORD.</p> <p>At the February Term, 1858, Chancellor Ribley dismissed the original and amended bills, upon demurrer. The complainant appealed.</p>

FROM SMITH. This cause was heard upon original and cross-bills, before Chancellor Ridley, at the February Term, 1858. The complainants in the cross-bill, and Ann Vaden, a defendant in the original bill, appealed.

<p>Cjumxnal Law. Larceny. Variance leiween the indictment and proof. In an indictment for larceny, -whenever a person has a special property in a thing, or holds it in trust for another, the property may be laid in either. Thus,- if a constable has collected money for another, and it is stolon from him, it may be laid as the property of the constable, or the owner. If the money, at the time stolen, was in the possession of the wife, her possession would he that of her husband.</p>

<p>PROM BEDFORD.</p> <p>The execution was' quashed by the Circuit Court DavidsoN, J., presiding, at the December Term, 1858. The constable appealed.</p>

FROM SMITH. Chancellor Ridley refused the application of the complainants, to file a bill of review, and they appealed from his decision. said: Bills of review may be filed: First, for errors apparent upon the decree, or for newly discovered proof since the rendition of the decree, which could not have been discovered and produced previous to the making of the decree. The ordinance of Lord Bacon is in force in this State.

EROM BEDEORI). This cause was tried at the August Term, 1858, before Davidsom, J., and resulted in a verdict and judgment for the defendant. The plaintiff appealed.

EROM CANNON. This cause was heard at the October Term, 1858, before Chancellor Ridley, who pronounced a decree for the complainant. The defendants appealed. cited and commented upon the following authorities: 6 Yer., 320; 2 Yer., 91; Peck, 24; 10 Yer., 1; 6 Hum., 295; 9 Hum., 146; 1 . Swan, 202.

EROM BEDEORD. At the August Term, 1858, verdict and judgment were rendered in favor of tbe plaintiff, DavidsoN, J., presiding. The defendants appealed.

<p>PROM RUTHEREORD.</p> <p>This cause was heard at the July Term, 1858, Davidson, J., presiding. The defendant appealed.</p>

FROM BEDFORD. This cause was heard at the ' August Term, 1858, before Chancellor Ridley, who dismissed the bills. The complainants appealed. cited 11 Hum., 827; .2 Story’s Eq., 715: 1 Yer., 71, 297; 2 Yer., 195; Sneed, 71. Crt O CO , argued: 1. There is not the first feature of usury in all this negotiation. No intention to exact usury in any shape, or under any coyer or pretence whatever. The idea of usury never entered the minds of the parties.

<p>1. Contract. Warranty. Execution sale. If a slave is sold at an execution sale, and bid off by a party, and immediately after the property is struck off, and before the slave is delivered, by agreement with another competing bidder, the latter is substituted as the purchaser and the bill of sale made to him, the substitute takes his place, not as a purchaser from him, but as the successful bidder at the sale, and takes upon himself all the risks which devolve upon purchasers at execution sales. There is no warranty by the first purchaser, either express or implied. The maxim, caveat emptor, applies.</p> <p>2. Same. Consideration. If the person -thus substituted as the purchaser, in place of the party to whom the slave is struck off, is sued; and upon application to him, the latter agrees to pay a part of the expenses of said suit, such promise is without consideration, and void.</p>

EROM GILES. This cause was beard at the December Term, 1858, Martin, J., presiding. Verdict and judgment for the plaintiff. The defendants appealed.

EROM GILES. This cause was tried at the December Term, 1857, MartIN, J., presiding. The defendant appealed in error. After the appeal, the plaintiff died, and his personal representative entered a motion in the Supreme Court to revive the suit in his name. This motion was resisted by the counsel for the defendant.

FROM LAWRENCE. This cause was tried at the October Term, 1858, before his honor, Judge Walker, who rendered1 judgment upon the verdict of the jury, in favor of the defendant. The plaintiff appealed.

PROM GILES. This cause was heard at the December Term, 1857, before Judge Martiet. There were verdict and judgment for the defendant. The plaintiff appealed.

PROM GILES. This cause was heard at the December Term, 1857, MartIN J., presiding. There was judgment for the plaintiff. The defendant appealed. cited and commented upon the act of 1819, ch. 27, § 4; Garter v. Vaulx, 2 Swan, 641; Goodman v. The State, Meigs’ R., 194; Turleville v. By an, 1 Hum., 112; Boyd v. Dodson, 5 Hum., 87. Did the Court err in not continuing the case at the December Term, 1857, upon the statements of Watson and Geo. W. Pitts?

<p>t. Justice op the Peace. Jurisdiction. Endorsee against endorser., A justice of the peace has no jurisdiction to render judgment in favor of the endorsee against the endorser of a promissory note, for a: greater sum than fifty dollars, unless demand and notice are expressly waived in the endorsement.</p> <p>2. Jurisdiction. Appeal. Certiorari. If a justice of the peace exceeds his jurisdiction, by rendering a judgment against an endorser for more than fifty dollars, the latter must avail himself of it by an-appeal; or, if ignorant of the judgment, by bringing the cause up to the next term of the Circuit Court for a new trial, by a petition for writs of certiorari and supersedeas. It cannot be reached by a certio-, ari to quash the judgment and execution.</p>

EROM MAURY. At tbe May Term, 1858, Marchbanes, J., presiding, the petition for writs of certiorari and supersedeas was dismissed, and a procedendo awarded to the justice. The defendant- appealed.

FROM COFFEE. This cause was tried at tbe May Term, 1858, Martin, J., presiding. Verdict and judgment for the defendant. The plaintiff appealed.

FROM CANNON. This cause was tried before Chancellor Ridley, at. the October Term, 1858, who pronounced a decree for the complainants. The defendants appealed.

FROM FRANKLIN. This cause was tried at the November Term, 1858, MARcnBANKS, J., presiding. There were verdict and judgment for the defendant. The plaintiff appealed.

<p>FROM ERANKLIN.</p> <p>At the July Term, 1858, Makchbanks, J., rendered judgment for the plaintiff, on the agreed case. The defendant appealed.</p>

PROM GRUNDY. This cause was heard at the September Term, 1858, Marchbanes, J., presiding. There were verdict and judgment for the plaintiff. The defendant appealed.

PROM LINCOLN. This cause was beard at the August Term, 1858, before Chancellor Ridley, who pronounced a decree for the defendants. The complainants appealed. said : 1st. The forfeiture applies only to the slaves “ he holds.” See 1 Monroe’s and Harlan’s Ky.

EROM ERANKLIN. This cause was heard at the November Term, 1858, before Chancellor Ridley, who pronounced a decree for the defendants. Held: that the legacy was not revoked by a general revocatory clause.

<p>Administration. Debt due from an heir. Assignment of interest. If an heir of an estate is indebted to the deceased in a sum which can not otherwise he made, the administrator, by proper proceedings, may subject the interest of such heir in the real estate, to the payment of said indebtedness. But if said heir has bona fide transferred his interest in the estate to an innocent party, the debt not being a lien upon such interest, it can not be subjected to the satisfaction of said indebtedness.</p>

FROM FRANKLIN. This cause was heard before Chancellor Ridley, who pronounced a decree in favor of the complainant. The defendants appealed.

FROM DAVIDSON. This cause was tried at the May Term, 1858, before Judge Baxter. The jury returned a verdict in favor-of the defendants, and the plaintiff’s motion for a new. trial having been overruled, he appealed. cited. Lynch v. Nur^ din, 41 Eng. Con. Law R., 422; Dixon v. Dell, 5 Maulé- & Selw., 198; Neal v. Q-illett, 23 Conn.

<p>1. Certiorari and Supersedeas. Granted in open Court. It is in time, if the application for writs of certiorari and supersedeas is made in open Court, at the next term after the rendition of the justice’s judgment, and a sufficient legal reason shown for not appealing.</p> <p>2. Same. Counter affidavits. Upon a motion to dismiss a petition for writs of eertiw'ari and supersedeas, counter affidavits, controverting the truth of its statements, are not admissible.</p>

PROM RUTHEREORD. This cause was tried at the July Term, 1858, Dayid-SON, J., presiding. Yerdict and judgment for the plaintiff. The defendant appealed.

PROM WARREN. This cause was heard upon original and cross-bills before Chancellor Ridley, at the September Term, 1857. He pronounced a decree for the complainant in the original bill.

EROM WARRRN. At the September Term, 1858, Chancellor Ridley pronounced a decree sustaining the sale of the real estate. The purchasers appealed.

EROM DAVIDSON. This cause was heard at the January Term, 1858, Baxter J., presiding. Verdict and judgment for the plaintiff. The defendant appealed.