Volume 45 — Tennessee Reports

FROM DAVIDSON. At the October Terra, 186-, of the Criminal Court of Davidson County, this cause was submitted to a jury, who returned a verdict of guilty, against the prisoner, and sentenced him to ten years imprisonment in the penitentiary, from which he appealed. Judge John Hush Smith, presiding.

PROM MONTGOMERY. At the September Term, 1866, the plaintiff in error was convicted of a misdemeanor, from which he has appealed to this Court. Judge John A. Campbell, presiding.

FROM RUTHERFORD. At the July Term, 1867, there was a verdict and judgment, and sentence of death, against the plaintiff in error, and, an appeal by him. Judge JOHN Hugh Smith, presiding.

FROM MONTGOMERY. The plaintiff in error was indicted for bigamy, and was, at the January Term, 1868, convicted and sentenced to two years imprisonment in the penitentiary;, from which sentence he appealed. Judge J. A. Campbell, presiding.

FROM GILES. The plaintiff in error, was convicted at the August Term, 1867, and sentenced to ten years imprisonment; from which virdict and judgement, he appealed. Judge M. M. Brien, presiding, by interchange.

<p>EROM HUMPHREYS.</p> <p>At the March Term, 1867, on motion of the defendant, the presentment was quashed. The District Attorney-General appealed. Judge Lucian L. Hawkins, presiding.</p>

EROM ERANKLIN. At the March Term, 1867, the plaintiff :in error was tried and convicted of manslaughter, after motion for a new trial and in arrest of judgement, he appealed. Judge N. A. PATTERSON, presiding.

EROM WILLIAMSON. At the March Term, 1867, tbe plaintiffs in error were convicted and sentenced to five years imprisonment in tbe penitentiary, and appealed to this Court.

EB0M OVERTON. On motion of the defendant in error, at the January Term, 1867, the presentment was quashed. From the action of the Court, there was an appeal by the District Attorney-General. Judge W. W. Goodpasture, presiding.

EROM ERANKLIN. At the November Term, 1867, the plaintiff in error was tried and convicted for arson. The defendant appealed in error, to this Court. Judge N. A. Patterson, presiding.

At the November Term, 1867, the defendant in error moved to quash the presentment, which motion was sustained; to which the District Attorney-General excepted, and appealed, in error, to this Court. Judge M. M. Beien, presiding.

FROM DAVIDSON. This was an application to the presiding Judge of the Ninth Judicial Circuit, for a mandamus to compel W. A. Glenn, Judge of the County Court of Davidson County, to order, in his official capacity, a certified copy of the last Will and Testament of Mrs. Cynthia P. Williams to he recorded, in order, that letters testamentary, may issue thereon.

EROM MARSHALL. This case originated before a Justice of the Peace, and came, by appeal, to the Circuit Court, where, at the October Term, 1867, there waá a verdict, and judgment for the nlaintiif below, and the defendants appealed to this Court. Judge HiliaRY Ward, presiding.

EROM ROBERTSON. At the October Term, 1867, the petition for a cer-tiorari, was dismissed, from which order, the petitioner appealed. Judge John A. Campbell, presiding.

PROM MONTGOMERY. At the January Term, 1867, there was a judgment in favor of the defendant. To reverse this judgment, the record has been filed for error. Judge JOHN A. Oapmbell, presiding;

PROM DAVIDSON. At tbe September Term, 1867, of the Circuit Couit, there was a judgment in favor of the defendant; from which the plaintiffs appealed. Judge M. M. Brien, Sr., presiding.

FROM ROBERTSON. The petition for the certiorari and, supercedias, was, at the June Term, 1867, on motion of defendant, dismissed by the Court; from which order, ' Brinkley appealed. Judge John Alex. Campbell, presiding.

PROM DAVIDSON. At the - Term, 1867, there was a final judgment, by default, against the defendant below, from which he appealed to this Court. Judge M. M. Brien, presiding.

EROM MONTGOMERY. This is an issue of devisavit vel non, tried at the September Term, 1866. Upon the trial, the jury found in favor of the Will; from which the contestants appealed. Judge John Alex. Campbell, presiding.

EROM MONTSOMERY. At the September Term, 1866, there was a judgment in this case, by default, and a jury impaneled, to inquire and fix the sum the plaintiff was entitled to, who rendered a verdict for the amount claimed, and interest thereon, upon which the Court gave judgment. Defendant appealed. Judge John Alex. Campbell, presiding.

PROM CHEATHAM. This is an issue of devisavit vel non, Circuit Court, at the-Term, 1866. tried in the There was a verdict and judgment in favor of the Will and codicil. The contestants appealed in error, to this Court. Judge JOHN Alex. Campbell, presiding.

EROM MAURY. There was a judgment in this case in favor of the defendant, at the August Term, 1867; from which the plaintiff appealed. Judge Hilary Ward, presiding.

FROM MAURY. At tbe December Term, 1865, of this Court, Frier-son recovered a judgment against Gr. T. Harris et als. After tbe rendition of tbe judgment, Harris died, and, in August, 1860, tbe death of Harris was suggested to Jesse Gr. Frazer, Clerk, etc., and tbe names of bis beirs at law given. Tbe Clerk issued a scire facias to tbe beirs at law of Harris, to appear before this Court, and show cause why said judgment should not be revived against them.

EROM WAYNE. The Justice of the Peace who tried this cause, rendered a judgement for the plaintiff. An appeal was taken by the defendant to the Circuit Court, when the judgment of the Justice was affirmed, from which the defendant appealed. Judge Fielding Hurst, presiding.

ER.M HUMPHREYS. This case originated before a Justice of tbe Peace for tbe County of Humphreys, who rendered a judgment for tbe plaintiff, McKeel. Tbe defendant appealed to tbe Circuit Court, and at tbe July Term, 1866, there was a verdict and judgment in favor of the defendant, and an appeal by the plaintiff. Judge Lucten L. Hawkins, presiding.

PROM ROBERTSON. This case came, by appeal, from a Justice of tbe Peace, from a judgment in favor of Moulton & Reid, in tbe Circuit Court of Robertson County; and at tbe June Term, 1866, tbe cause was submitted to a jury, wbo rendered a verdict affirming tbe judgment of tbe Justice of tbe Peace; from wbicb verdict and judgment, tbe defendant appealed to tbis Court. Judge John Alex. Campbell, presiding.

EROM DAYIDSON. At the May Term, 1867, the Court below sustained tbe demurrer of the defendant to plaintiff’s declaration; from which the plaintiff appealed. Judge M; M. Brien, Sr., presiding.

EROM ROBERTSON. This cause was submitted to a jury at the October Term, 186T, who returned a verdict in favor of the defendant Greer, for the value of the property re-plevied, on which there vras a judgment pronounced, and an appeal by the plaintiff. Judge M. M. Bbien, presiding, by interchange.

EROM Humphreys. At the March Term, 1860, this case was submitted to a jury, who rendered a verdict in favor of the defendant, and upon a motion for a new trial being overruled, the plaintiff appealed to this Court. Judge Wm . Fitzgerald, presiding.

PROM DAVIDSON. At the May Term, 1866, this case was dismissed upon the demurrer of the defendants, and an appeal was taken to this court by the plaintiff. Judge John M. Lea, presiding.

FROM MONTGOMERY. In this cause, at the October Term, 1867, there was a decree pronounced in favor of the complainant, from •. which the defendant appealed to this Court. Chancellor Thomas Barry, presiding.

EROM MONTGOMERY. The Chancellor pronounced a decree in favor of the complainant, at the October Term, 1867, from which Mrs. Drane appealed in error, to this Court. Chancellor Thomas Barry, presiding.

EROM ROBERTSON There was a decree for the complainants at the November Term, 1867, and an appeal by the administrator, to this Court. Chancellor Thomas Barry, presiding.

FROM MONTGOMERY. At the October Term, 1867, there was a decree in favor of the complainant, and an appeal to this Court by the respondents. Chancellor Thos. Barry, presiding.

EROM MONTGOMERY. At the October Term, 1866, there was a decree refusing to allow Mrs. Orgain interest upon her legacy, under the Will of Henry Hatcher, deceased; from which she has appealed in error, to this Court. Chancellor Thomas Barry, presiding.

PROM LAWRENCE. There was a decree in this cause at the September Term, 1865, against Kearns, surety of Bently, who was dead; from wbicb decree Kearns appealed to this Court. Chancellor Ruse, presiding.

FROM MONTGOMERY. At tbe October Term, 1866, there was a decree in. favor of the respondents; from which complainants appealed to this Court. Chancellor Thomas Barry, presiding.

<p>ER0M HICKMAN,</p> <p>At the September Term, 1867, there was a decree in favor of the complainant, and an appeal to this Court, by Mrs. Sallie Johnson. Chancellor Robekt H. Rose, presiding.</p>

FROM ERANKLIN. A decree was pronounced in this cause at the August Term, 1867, in favor of the complainants; from which the respondents appealed to this Court. Chancellor John P. Steele, presiding.

EROM MAURY. This cause was beard at tbe March Term, 1867, upon tbe demurrer to complainant’s bill embraced in tbe answer of Wilkins, one of tbe respondents. Chancellor David Campbell sustained tbe demurrer and dismissed complainant’s bill, from which be has appealed to this Court.

KROM ■ MAUB.Y. At the -- Term, 1867, of the Chancery Court, a motion was made against the former Sheriff for an insufficient return of an execution in favor of complainant, that came to the hands >of the Sheriff on the 16th day of November, 1861, returnable to tbe March Term, 1862. Chancellor David Campbell, sustained -the motion and rendered a judgment against the Sheriff and his sureties; from which they appealed.

FROM CARROLL.. This is an appeal from the County Court of Carroll County, by Phillips, administrator. The Court having, on demurrer of tbe guardian ad litem, dismissed the petition of complainant.

PROM lauderdalb. This is an appeal from a judgment before a Justice of the Peace, in favor of Crow to the Circuit Court, where there was a verdict and judgment in favor of the defendant, from which the plaintiff appealed. Judge Wm. P. BOND, presiding.

PROM HAYWOOD. At the - Term, 1867, the Circuit Judge refused to enter a judgment of condemnation, of a tract of land, levied on by a constable, and the papers returned into the ■ Circuit Court; from which Anderson appealed. Judge Wm. P. Bond, presiding.

EROM HENDERSON. At tbe - Term, 1867, this ease was dismissed upon tbe demurrer of tbe defendant; from wbicb tbe plaintiff appealed. Judge Wm. P. Rond, presiding.

FROM MEMPHIS. At the-Term, 1867, there was a judgment by default against the defendant, and a final judgment rendered at the same time, without the intervention of a jury; from which the defendant, appealed. Judge James 0. Pearce, presiding.

FROM HENRY. At the-Term, 1867, there was a judgment in this case in favor of the plaintiff; from which the defendant appealed. Judge Lucien L. Hawkins, presiding.

EROM CARROLL. This was an action brought by the defendant in error, in his life time, for the wrongs and injuries, of which he afterwards died. At the. September Term, 1867, there was a verdict and judgment for the plaintiff below, from which the defendant appealed. Judge Ltjcien L. Hawkins, presiding.

PROM SHELBY. At the - Term, 1867, there ¡-was a judgment in this ease, for the plaintiff, for $1,200.00, from .which the defendants appealed. Judge George W. Reeves, presiding.

EROM HENRY. This case was submitted to a jury at the- Term, 1867, who returned a verdict in favor of the defendant. There was a judgment against the plaintiff, for costs, discharging the attachment, etc.; from which the plaintiffs appealed. Judge LuciaN L. Hawkins, presiding.

EROM TIPTON. The plaintiff in error, with one Sills, were convicted of murder in the first degree, at the-Term, 1867; sentence of death was pronounced, and an appeal taken to this Court. Sills has died since the appeal. Judge George W. Reeyes, presiding.

EROM HENRY. The prisoner was put upon his. trial at the May Term, 1868, and after the proof, argument of counsel, and charge of the Court was had, the District Attorney-General, by permission of the Court, entered a nolle prosequi. The prisoner was re-indicted and tried at the same Term, for the same larceny. The jury found for his plea, “once in' jeopardy;” from which the State appealed.

EROM SHELBY. Tbe plaintiff in error was convicted and sentenced to five years’ imprisonment, at tbe January Term, 1868; from wbicb be appealed to this Court. Judge G-eorge W. Reeyes, presiding.

FROM MEMPHIS. At the January Term, 1868, of the Criminal Court for Memphis, Judge William HuNter, presiding, a judgment was rendered against Calloway & Rhea, for an alleged contempt of the Court, which is brought to this Court by writ in error; and also by writ of error from the judgment of the Municipal Court of Memphis, Judge George W. WaldeN, presiding, dismissing for want of jurisdiction, the writ of habeas corpus sued out in that Court by the defendant, to be discharged…

FROM MEMPHIS. The plaintiff in error, E. M. Apperson, surviving partner of tbe firm of E. M. Apperson & Co., was the holder of a promissory note, made by one William L. Lundy, dated at Memphis, the 17th February, 1862, for $15,221.09, payable six months after date, to the order of B. C. D. Bynum, the defendant in error, at the Branch of the Union Bank of Tennessee, at Memphis, and indorsed by said Bynum, the word “Memphis” being written just under Bynum’s name on the back of…

PROM MEMPHIS. This cause was submitted to a jury at tbe <- Term, 1867, of tbe Common Law Court for tbe City of Memphis, wbo found in favor of tbe plaintiff. There was a judgment, and an appeal by Caruthers. Judge Thomas G-. Smith, presiding.

FROM HAYWOOD. Respondents, at tbe —- Term, 1867, demurred to complainants’ bill. Tbe Court overruled tbe demurrer, from wbicb complainants appealed. Chancellor JohN L. Williamson, presiding.

PROM HARDEMAN. At the September Term, 1866, the Chancellor refused to confirm the report of the Clerk and Master, of the sale of slaves made by order of the Court, in February, 1861, and directed that the notes executed to the Master, be delivered ( up and cancelled. Complainants appealed. Chancellor John W. Harris, presiding.

FROM GIBSON. There was a decree in this cause, for the complainant, at the - Term, 1867, from which respondents appealed. Chancellor John L. Williamson, presiding.

FROM DYER. The Chancellor, at the-Term, 1867, pronounced a decree in this canse for the complainant, against the respondents, for $3,541.26; from which they appealed to this Court. Chancellor JOHN L. WilliamsoN, presiding.

<p>1. Wills. Construction of. Power of Widow. The second clause in John h. Morgan’s Will, is as follows: “I give and bequeath to my beloved wife, Roberta A. Morgan, all my estate, both real and personal, to dispose of and divide among my children as she may think best.” Held, first, that the Will did not vest in the Widow an absolute interest in the estate of the testator, but only a qualified interest in the same, with power of appointment in the exercise of a sound discretion, to the children. econd, the exercise of this power of appointment is a condition precedent to the actual enjoyment of the estate, in whole or in part, by the children, and no beneficial interest in them can be enjoyed until the power is exercised.</p>

<p>1. Agents. Power to sell personal property. Possession not sufficient. Estoppel in pais. The mere possession of personal property by an agent, without any authority to sell, actual or apparent, from the owner, and without any apparent title conferred on him by the owner, will not enable such agent to confer upon his agent, a power to sell and defeat the title of the owner. The owner not having given his agent any authority to sell, apparent or actual, and not having clothed him with any title, apparent or actual, it is impossible to impute to the owner any wrong wherefor to repel him of the right to assert his title, or upon which to raise against him any bar in the nature of an estoppel in pais.</p> <p>2. Case in judgment. Pope employed Armstrong to take charge of his wagon and cotton, on their way to Memphis, and to deliver the cotton to Meeham & G-albreath, merchants at Memphis. Armstrong, in fraud of his duty to Pope, delivered the cotton to Taylor, Cole & McLeod, and employed them to sell the cotton, representing to them that it was his own. They sold the cotton, without notice that it was not Armstrong’s, and paid him the proceeds of the sale. Held, 1st, That the agent in such a case cannot make to an innocent purchaser a title to the cotton as against the owner; nor can he, (the agent,) cause the title tobe put in such purchaser, by employing to make the sale, a factor who follows the business of selling cotton. 2d, That the owner of the cotton in such case, may follow the cotton, into whosesoever s hands it has gone and been sold, or otherwise converted, and recover its value; and it is no defense against the action of the owner, that the party sought to be charged, bought and paid for it in the usual course of trade, without notice that his vendor did not have the right of property in the cotton, or the power to sell it.</p> <p>3. Justices’ Jurisdiction. Circuit Court jurisdiction not abridged thereby. Replevin, ihe increase of the jurisdiction of Justices of the Peaee in actions of this kind, to the extent of two hundred and fifty dollars, by the Act of May 26, 1866, cli. 51, does not operate to abridge the jurisdiction had before by the Circuit Court, in this class of actions.</p>

FROM OBION. This was a contest as to the right of Farris to be inducted into the office of County Court Clerk of Obion County; which was resisted by Isbell, the incumbent at the time. The County Court held that Farris was entitled to. the office; and Isbell appealed.

PROM HARDEMAN. There was a verdict and judgment in this case, in favor of the defendant in error; Polk appealed to this Court. Judge Wm. P. Bokd, presiding.

EROM SHELBY. This is an action by garnishment, against the treasurer of the Memphis & Ohio Railroad Company. The Court below gave judgment against Knowlton, the treasurer, upon his answer, from which he has appealed to this Court. Judge George W. Reams, presiding.

PROM HAYWOOD. At the January Term, 1868, there was a verdict and judgment in this case, in favor of the defendants, from which the plaintiff appealed. Judge William P. Bond, presiding.

FROM CARROLL The petition for a certiorari in this cause, was, on motion of the defendents in error, dismissed at the -Term, 1867, from which the plaintiff in error appealed. Judge LuoiAN L. HawKINS, presiding.

PROM MEMPHIS. This cause was dismissed at the January Term, 1868, on the failure of the defendants to give an additional bond to cover rent of property; from which order dismissing the cause, an appeal was taken to this Court. Judge Jas. O. Pearoe, presiding.

<p>ACTION OT Debt. On Justice's judgment. Profert not required.. An action of debt will lie upon a domestic judgment rendered by a Justice of tbe Peace, against tbe principal or stayor; and profert of tbe original papers, or an exemplification, is not required.</p>

EROM HENRY. There was a verdict and judgment for the Bank, at the - Term, 1867; and an appeal in error, to this Court, hy Currier. Judge Lucian L. Hawkins, presiding.

<p>FROM CARROLL,</p> <p>There was a verdict and judgment in this case, in favor of Thomas; and an appeal by Jones to this Court. Judge Lucian L. Hawkins, presiding.</p>

FROM CARROLL. There was a verdict and judgment in this case against Belote; from which he has appealed to this Court. Judge Lucian L. Hawkins, presiding.

PROM HENDERSON. This cause was submitted to a jury at the - Term, 1867, who returned a verdict in favor of Parker, for the value of certain cotton destroyed at the gin of Waller. Judgment was entered in accordance with the finding of the jury; Waller appealed. Judge Lucian L. Hawkins, presiding.

EROM BENTON. In tbis case, there was a verdict and judgment in the Court below, for Polly Molin; and an appeal to this Court by Holmark. Judge Lucian L. Hawkins, presiding.

EROM SHELBY. There was judgment in this case by default, and a writ of inquiry executed; plaintiff waiving damages, there was a final judgment against both defendants. The case was brought to this Court by writ of error. Judge GrEORGE W. Reeves, presiding.

FROM MEMPHIS. There was a verdict and judgment in this case, at the - Term, 1867, for the defendants; and an appeal hy the plaintiffs. Judge James 0. Piehce, presiding.

<p>PROM PAYETTE.</p> <p>There was a decree in this cause, at the -> Term, 1867; from which the defendants appealed. Chancellor John W. HARRIS, presiding.</p>

EROM WEAKLEY. The bill in this cause was dismissed on the demurrer of the respondents; from which complainants appealed to this Court. Chancellor John Summers, presiding.

PROM HENDERSON. In this cause there was .at the - Term, 1867, a decree against the complainant; from which he has appealed to this Court. Chancellor R. H. Rose, presiding.

FROM MADISON. At the -, Term, 1867, on the demurrer of respondents, complainants’ bill was dismissed. From the action of the Court, complainants appealed. Chancellor John L. Williamson, presiding.

PROM CARROLL .There was a decree in this canse at the-Term, 1867, against Hallum; from which he has appealed to this Court. Chancellor Sumers, presiding.

EROM CARROLL. This case was tried before a Justice of the Peace, who gave judgment for the plaintiff; when it was by appeal, taken to the Circuit Court, and a trial had, which again resulted in a verdict for the plaintiff. Polly G. Hawkins alone appealed. Judge Lucian L. Hawkins, presiding.

If ROM DAVIDSON. This case was submitted to a jury at the September Term, 1867, who found the issues in favor of the defendant. The plaintiff appealed to this Court. Judge Manson M. Brien, presiding.

PROM DAVIDSON. This case was submitted to a jury at the September Term, 1867, who returned a verdict in favor of Munday, and on which there was judgment, and an appeal by the defendants below, to this Court. Judge John Alex. Campbell, presiding, by interchange with Judge M. M. Brien.

EROM DAVIDSON. This case originated before the Recorder of the City of Nashville, who rendered a judgment against Althrop, who appealed to the Circuit Court. At the September Term, 1867, it was submitted to the Court upon an agreed state of facts. The Court dismissed the case, and the Mayor and City Council appealed. Judge M. M. Brien, presiding.

FROM DAVIDSON. This cause was tried at the September Term, 1867, of the Circuit Court, when there was a judgment against Woodfolk, and J. W. Allen, the garnishee. Woodfolk filed a transcript of the record in .this Court, for writ of error. Allen took no appeal or writ of error. Judge M. M. Brien, presiding.

EEOM WILLIAMSON. This case was brought by appeal from a Justice’s judgment to tbe Circuit Court, where, at the March Term, 1867, it was submitted to a jury, who. rendered a verdict for the plaintiff. The defendant appealed to this Court. Judge M. M. Beien, presiding.

FROM DAVIDSON. This case was brought, by appeal, from the judgment of three Justices of the Peace, before whom it was commenced, to the Circuit Court, when a trial was had at the September Term, 1867, and a verdict and judgment rendered in favor of the plaintiffs below. Defendant appealed. Judge Manson M. Breen, presiding.

EROM WILLIAMSON. At the March Term, 1867, under the instructions of the Court to the jury, they rendered a verdict in favor of the defendant; from which the plaintiff appealed to this Court. Judge M. M. Brien, presiding.

EROM WILLIAMSON. There was a verdict and judgment in this case, at the November Term, 1867, in favor of the plaintiff; and an appeal to this Court by the defendants. Judge M. M. Brien, presiding.

FROM SUMNER. This cause -was heard hy Chancellor John P. Steele, of the Third Division, at a Special Term, in July, 1868, •who pronounced a decree in the cause; from which James E. Lauck, appealed.

EROM DAVIDSON. At the September Term, 1867, there was a judgment against the Major and City Council of Nashville; from which they appealed. Judge M. M. Beien, presiding.

<p>1. CoNSTRUCTiOír os Whiting. Sale of land. Specific performance Litton gave to Dobson the following writing: “I have this day sold, to W. K. Dobson, a certain tract of land, containing nine acres and sixty-six poles, near the junction of broad Street, Nashville, and the Hillsboro’ Turnpike, Davidson County, Tennessee, for the sum of four thousand dollars,” Held, that this agreement will not sustain a bill for a specific performance. It does not point out and identify the premises, and is too vague and uncertain to be enforced, and the defect is such that p.arol proof cannot aid the instrument.</p> <p>2. Same. Same. When parol evidence may he employed to aid a written agreement. When not. Where an instrument is so drawn that, upon its face it refers necessarily to some existing tract of land, and its terms'can be applied to that one tract only, parol evidence may be employed to show where the tract so mentioned is located. But where the description employed, is one that must necessarily apply with equal exactness to any one of an indefinite number of tracts, parol evidence is not admissible, to show that the parties intended to designate a particular tract by the description.</p> <p>3. Courts or Equity. Rule as to decrees for specific.performance. Courts of Equity will not decree a specific performance of a written contract, unless its terms can he clearly made out in all its essential particulars, from the writing itself, or by a reference contained in it, -to some other writing.</p>

FROM WILLIAMSON. This case came from the Chancery Court at Franklin on an appeal from an order of that Court overruling demurrer of defendants. Hon. M. M. BrieN sitting by interchange with Hon. D. Campbell, Chancellor, etc., who was incompetent by reason of being of counsel.

EROM DAVIDSON. This cause was tried at tbe September Term, 1867, tbe jury under tbe instructions of tbe Court, rendered a verdict for tbe defendant, from wbicb tbe plaintiff appealed. Judge Manson M. Brien, presiding.

<p>EROM WILLIAMSON.</p> <p>There was a judgment in this case, at the November Term, 1867, in favor of Warren; from which Thompson appealed. Judge M. M. Brien, presiding.</p>

<p>1. Appeal. Clause transferred to appellate court. Dismissal after appeal and rise of court, a nullity. Upon an appeal to this Court and an execution of the hond, the cause is immediately transferred to this Court, and the court below had, after its rise, no longer any jurisdic tion of the case. An entry of dismissal in the court below by the appellant, is a nullity.</p> <p>'¿. Same. Same. Failure to prosecute appeal. Effect of. If the appellant fails to prosecute his appeal in error, the judgment of the inferior court remains suspended, and cannot be executed by the inferior court until the suspension is removed.</p> <p>3. Refusal to prosecute an appeal. Record may be filed by defendant m error, and have an affirmance of judgment. The plaintiff in error having refused to prosecute his appeal, the defendant in error had the right to fils the record, and upon notice, move for an affirmance of the judgment; and the plaintiff in error cannot defeat him of his application of an affirmance, by dismissing his appeal in this Court.</p> <p>4. Section 3199 does not apply to appeals. Section 3199 of the Code, which authorizes the dismissal of suits in term, and out of term time, by writing, has no application to cases of this character.</p>

EROM SMITE, This cause was, at the November Term, 1868, submitted to a jury, who returned a verdict of guilty, and fixed the imprisonment of Bolton to ten years in the penitentiary. After Ms motions for a new trial and arrest of judgment were overruled, be appealed to this Court. ' Judge Andrew McClain, presiding.