Volume 7 — Tennessee Reports

<p>A person will be entitled to relief in equity, by a recission of the contract, who has been induced to buy a judgment against a dead man, by representations, which prove untrue, that it had been properly revived against the heirs of the decedent, the object of the purchase being to sell, under the judgment, the interest of the heirs of the decedent in certain lands, and to purchase the same, with a view to perfect a doubtful title. [Cited and approved in Henderson v. Overton, 2 Y. 399.]</p>

<p>The Act of 1819,19,1, directing that no execution shall issue upon a judgment until two years after its rendition, unless the plaintiff shall indorse upon the execution that the sheriff may receive in satisfaction the notes of certain banks, is void, because in conflict with the Constitution of the United States, Art. 1, § 10, which prohibits the States from' making anything but gold and silver coin a tender in payment of debts. [Acc. Lowry v. McGhee, 8 Y. 245, and Farnsworth v. Yance, 2 Cold. 118, both citing this case.]</p> <p>The law is the source of the obligations of contracts ; and the extent of the obligation is defined by the law in use at the time the contract is made, and cannot be changed by subsequent legislation without violating the provision of the Constitution of the United States, Art. 1, § 10, and of our Bill of Rights, § 20, which interdicts laws impairing the obligation of contracts. The Act of 1819 is void upon this ground. [Cited approvingly Smith u. Brady, 7 Y. 451. Cited, also, in Greenfield v. Dorris, 1 Sn. 550, where the principle is thus stated: “Those laws that give force and effect to a contract, are incorporated in and form a part of it.” But denied in Farnsworth v. Yance, 2 Cold. 119, citing Woodfin v. Hooper, 4 Hum. 13, which, however, was a case involving only the remedy.]</p> <p>It is not unconstitutional to alter existing remedies, and vary their nature and extent, so always that some substantive remedy be in fact left. [Acc. Woodfin v. Hooper, 4 Hum. 13.]</p> <p>But as regards antecedent contracts, remedies are not to be so altered as to be rendered less efficacious or more dilatory, than those ordained by the law in being when the contract was made, if such alteration be the direct and special object of the Legislature, apparent in an Act made for the purpose. Aliter, perhaps, if the alteration were the consequence of a general law and merely incidental to it. [So held in 1861 at Jackson, in a case not reported, upon the Act of that year, the constitutionalty of which was afterwards sustained in Farnsworth v. Vance, 2 Cold. 108.]</p> <p>The Act of 1819, is also violative of the State Constitution, Art. 1, § 17 (Bill of Rights), which provides for the administration of right and justice without denial or delay, for these terms clearly comprehend the case óf execution suspended by act of the Legislature, in every instance where justice requires that it should immediately issue.</p> <p>But it does not violate section 8 of the Bill of Rights, which declares that no freeman shall be deprived of his property but by the judgment of his peers or the law of the land.</p> <p>Nor section 20, that no man’s property shall be taken .without the consent of his representatives, or without just compensation being made therefor.</p> <p>Nor the same section, so far as it prohibits retrospective laws; for the whole clause and both sentences together mean, that no retrospective law which impairs the obligation of contracts, or any other law which impairs their obligation, shall be made. [Acc. Wynne v. Wynne, 2 Sw. 410, citing this case, and giving several examples of retrospective laws which are not unconstitutional. To same effect Bell v. Perkins, Peck, 266 ; and Jones v. Jones, 2 Tenn. 2.]</p> <p>If the debtor has specially contracted for payment to be made in bank paper, or if such was the meaning of the contract and the understanding of the parties, at the time of its formation, it would be highly unconscionable in the creditor to enforce a payment in gold and silver, and equity will interfere to specifically execute the contract as made. [See Thorington v. Smith, 8 Wall. 1.]</p>

<p>By a rule of this Court, the record must be filed fifteen days before the sitting of the Court, and, on failure, the appellee may file the record and move for a nonpros, or affirmance; in which ease the appellant cannot assign errors. [But by 1829, 103, 2, the Court was forbidden to dismiss a writ of error upon any rule of Court, or for want of assignment of errors. See, now, Code 3160, 3185; Heiskell’s Dig § 163.]</p> <p>If, for any cause not imputable to the plaintiff in error, nor under his control, the filing of the record in due time has been prevented, the Court will place him in the same situation as if such impediment had not been interposed.</p> <p>In case of a non pros, the Court cannot enter judgment against the principal and his sureties for twelve and a half per cent, as in case of affirmance. [See Smith v. Brunson, Peck 205; Kincaid v. Morris, 10 Y. 252. 1865, 2 Sess. 17, allows only six per cent on affirmance.]</p>

Ejectment. In Error. Action commenced the 21st of October, 1819. It appears from the bill of exceptions that the plaintiff produced on the trial the following title.

<p>An appeal will lie from a decree of divorce a mensa et tkoro, being within the equity, if not the words of 1819, 81. [But see Pillow t>. Pillow, 5 Y. 420, where the ruling is otherwise, without citing this case. And, now, by the Code 8158, an appeal is the only mode of revising errors in divorce eases. See 3 Head, 225 ; 3 Cold. 550.]</p> <p>But an appeal will not lie from the order for the payment of alimony then due.</p>

<p>A judgment was not a lien on a debtor’s property at common law, but this was remedied in 1285, by 13 Edward 1,18, commonly called the statute of Westminister 2, upon which was founded the writ of elegit, and, by construction of which, the judgment was held to bind the land of which the debtor was then, or might become seised, from the first day of the term at which the judgment was rendered. [Acc. Preston v. Surgoine, Peck, 80. See Chapron v. Cassady, 3 Hum. 661; Relfe & Co. v. McComb, 2 Head, 668.]</p> <p>This was the law which the colonists brought to this country, and by which the method of satisfying the judgment was to deliver to the plaintiff one half of the debtor’s land at a reasonable price or extent, to be held till the debt was paid.</p> <p>But in 3732, by 5 Geo. 11, 7, 4, extended by the N. C. Act of 1777, 2, 29, lands were made liable to be sold to satisfy judgments, in like manner as personal estate, the execution to be first levied upon goods and chattels, if any. [Acc. Russell v, Stinson, 3 Hay. 1, which see. Overton v. Perkins, M. & Y. 371, citing this case.]</p> <p>' Under these laws,-the lion of judgments was unlimited as to time, until it was enacted by 1799,14, 2, that sales of land by execution should be void as to bonajlde purchasers, unless the sale be made within twelve months from the rendition of the judgment. [Re-enacted by 1831, 90, 7, brought into the Code 2980, 2982.]</p> <p>The lien so given may be lost or destroyed by the act of the judgment creditor, so as to let in a younger judgment creditor, who stands in a situation to be injured by such act. [See Hickman v. Murfree, M. & Y. 35; Daley v. Perry, 9 Y. 442.]</p> <p>Thus, a contract to stay execution until the next term will destroy the lien of the judgment. [Overruled by Love v. Harper, 4 Hum. 117.]</p> <p>A sheriff’s deed relates back to, and vests the title from, the time the sale was made, Garner v. Johnston, Peck, 24, so that the statute of limitations will run in the intermediate period from the date of possession until the deed is made. [See Miller v. Estill, 8 Y. 459, citing this case.]</p> <p>Courts of Equity are bound, equally with courts of law, by a statute. [Acc. Patton v. McClure, M. & Y. 345, citing this and other cases.] And this is so in regard to the statute of limitations [acc. Hickmau v. Gaither, 2 Y. 207, citing this and other cases, and, among others, Elmendorf v. Taylor, 10 Wheat. 153; Cholmondeley v. Clinton, 2 Jac. & W.]; which ought to be liberally construed in favor of possessors. [Acc. Gray v. Darby, M. & Y. 418, citing this case, and Shelby v. Sbelby, Cooke, 184.]</p> <p>Fraud is not one of the exceptions contained in the statute of limitations, and, therefore, seven years’ adverse possession under a deed of conveyance, though fraudulent as to creditors, will operate as a bar in ejectment. [Acc. Reeves v. Dougherty, 7 Y. 233, citing this case.]</p> <p>The statute of limitations will operate as a bar to equitable titles where the equitable interest is of such a nature, that, turned into a legal interest, the statute would have operated against it.</p>

Debt upon a bond dated the 22d day of December, 1796, payable on or before the 25 th day of December, 1798, for one hundred and sixty-six dollars and two thirds of a dollar. Declaration in the usual form, and pleas first, payment on the day appointed; and the second, after the day appointed, and issue.

<p>That degree of precision in the description of an offence cannot be given in the indictment so as to distinguish it per se from all other cases of a similar nature; such a discrimination amounting to identification must rest in averment, and its absence in description can be no test of the certainty required either for defence against the present or protection against a future prosecution for the same matter. [See State u. Carter, 7 Hum. 158.]</p> <p>Therefore, an indictment on the Act to prevent malicious mischief, for killing “ one horse beast ” of the value, &c., using the language of the statute, sufficiently describes the animal killed. [See Hall v. State, 3 Cold, 129, where this case is cited.]</p>

<p>A ji. fa. issued after the death of the judgment debtor, but tested as of the term preceding his death, binds his personal property from its teste. [Acc. Black v. Planters’ Bank, 4 Hum. 368; Johnson v. Ball, 1 Y. 392; Battle ». Bering, 7 Y. 531; Daley v. Perry, 9 Y. 443; 4 Y. 28 and 371, all citing this case. So, if plaintiff die after the teste of a fi.fa., it r may be executed. Neil v. Gaut, 1 Cold, 397, citing this case.]</p> <p>So, real estate is bound by the judgment, and descends, not to the heir, but is in custodia legis, if the judgment be rendered before the defendant’s death; and execution may issue at any time before the expiration of a year and a day ; after which it cannot issue without sci. fa. against the heir. [Acc. ward v. Southerland, Peck, App. 3, and cases cited per Haywood, Ch. But see Overton v. Perkins, 10 Y. 328; Rutherford ». Read, 6 Hum. 423; Stockard’s Heirs v. Pinkard, 6 Hum. 119, which hare been considered (See Meig’s Dig. p. 518) as overruling this decision. Sed quaere ? See Taylor v. Doe, 13 How. 287.]</p>

<p>A judge cannot continue the session of a Court beyond the time limited by law, and into the time fixed for holding another Court of his circuit; and a judgment given during such prolonged session is coram mm judice, and void. [Overruled by Venable v. Curd, 2 Head, 686.]</p>

<p>All covenants are to be construed, as near as may be to the obvious intention of the parties, and that, from the whole context of the instrument, according to the reasonable sense of the words.</p> <p>Thus, where the covenant is to make a deed in the space of one month, or at any other period, the meaning is, that the covenantor may discharge himself within the month, or be liable afterwards to performance at the request of the covenantee. In the first case, he must make and tender the deed; in the latter, the covenantee must make and tender the deed to him for execution.</p>

<p>Appeal from Washington.</p>

<p>The application for an order on the treasurer, to pay the costs in a criminal case which the State is hound for, must he presented in legal form, and show that all the preliminary requisites have been complied with. [See, now, Code 8560 et seq.-, 1860,76,1; 2 Head, 555; 1860, 96, 2.]</p>

<p>Where the declaration states the instruments sued on to be under seal, and the pleas admit the fact, it is no ground for arrest of judgment or reversal, that the instrument as set out upon oyer appears not to be under seal.</p> <p>Covenant will lie on a bill single for the payment of a sum certain.</p> <p>A new security, taken in lieu of another void for illegality, is equally invalid in the hands of the party, his personal representative, or privy, or of any person having knowledge; but not of a bona fide holder.</p> <p>Thus, a bond given upon an award made under an order of Court, in an action founded upon a gaming consideration, is not purged of the illegality. [Acc. Fain v. Headerick, 4 Cold, 33T, and Hale v. Sharp, 4 Cold, 288, citing this case.]</p>

<p>Per Haywood, J. a devise of personalty to the testator’s widow, to her own rise and benefit and disposal absolutely, the remainder, after her decease, to be for the use of testator’s son, gives a remainder to the son. [Overruled by same case, M. & Y. 302, which see.]</p>

The material facts of this case are shortly and correctly státed in the brief of the caveators counsel, which is as follows: — This case was a caveat entered by James Rogers against the heirs and devisees of Richard Henderson, the heirs and devisees of George Doherty, Samuel Henderson and Robert Burton, to prevent them from obtaining a grant on a survey made for them in Roane County, on the 4th of June, 1812, for three thousand acres, by virtue of an entry made in John…

<p>If a party obtain an appeal in the nature of a writ of error, but fail to bring up his record in due time, so that it is dismissed under the rule of court, he cannot have his writ of error, as he would have been otherwise entitled to. [Changed by 1827, 50; Code 3185.]</p> <p>Note. — In the original note to this case there are, on pages 124, 125, 126, some learned remarks of Judge Haywood upon the subject of the consequential damages which are recoverable at law. Mr. Meigs has, in his Digest, sections 720 and 1058, condensed the substance of these remarks, and referred to them as ruled by the Court. But it will be seen, upon turning to the pages mentioned, that no such rulings were in fact made. The subject is one of grave difficulty, and has been considered by our courts in Hendrick v. Stewart, 1 Tenn. 476; Pettee v. Tenn. Man. Co., 1 Sn. 381 ; McWhirter v. Douglas, 1 Cold, 592, 602; Peyton v. Butler, 3 Hay. 141. —Ed.</p>

<p>Debt will not lie upon a bill single to pay so many dollars in current bank notes. [Acc. Deberry v. Darnell, 5 Y. 451; Kirkpatrick v. McCullough, 3 Hum. 172; Whiteman ». Childress, 6 Hum. 305: all citing this case. See also 1Y. 102,166; McDowell v. Keller, 4 Cold, 262, where it is likewise cited.]</p> <p>Note. —We learn from the preface to this* volume, that this cause was finally determined in accordance with Judge Haywood’s opinion.— Ed.</p>

<p>A note payable in specific articles is not within the jurisdiction of a justice of the peace, under 1809, 64, 1. [Acc. Bedford v. Hickman, 1 Y. 166, citing this case. Changed by statute, see Code 4123, where jurisdiction is given on such notes to the amount of $ 600.]</p> <p>If a justice render a judgment in a matter of which he has no jurisdiction, a certiorari will lie to remove the proceedings into court for correction, subject to the usual rules regulating that writ as a substitute for appeal.</p>

<p>Moneys due to the-testator, collected by the defendant as agent of the executrix, maybe sued for by her, describing herself as executrix; and, when recovered, they will be assets; but may be considered, at her election, as received to her use, in her ’own proper right, she being personally answerable over therefor.</p> <p>But the defendant in such action may consider the transaction independently of the plaintiff’s character as executrix, and may set off against her, in such action, any just demand. [Mr. Meigs makes a query as to this in his Dig. § 79, subs. 7.]</p> <p>Where the event of the cause is agreeable to the merits, and no substantial advantage can be gained by remanding, the Court will follow the Act of 1809,126, and refuse to set aside the judgment, notwithstanding some irregularities. [Acc. Kelton v. Bevins, Cooke, 102; Gregory v. Allen, M. & Y. 77.] •</p>

In Error. This was an action of assumpsit, brought in the Circuit Court of Jefferson County. The declaration contained two counts. The first set forth specially that a certain John Hall, in the year 1810, had brought his action of covenant in the County Court of Grainger, against David Stuart, and prosecuted the same to a judgment for three thousand and sixty-four dollars, besides cost of suit.

This is an indictment for the murder of Stephen Fields, found in the Circuit Court for the county of Warren, February term, 1822. Held: in which the indictment purports to have been found. Secondly, the grand jury is not stated to be of that county, nor to . have been sworn, and there is no day mentioned when the indictment was found. Thirdly, the defendant was never arraigned. Fourthly, the evidence of Nancy Chissum ought to have been rejected.

<p> Case agreed. </p> <p>When a resurvey is resorted to, in order to ascertain the position of the ancient boundaries, and one of the ancient lines be known, and is found to run with a variation from the true meridian, all the other lines should be run with the same variation. [Acc. Lewis v. Har-well, Peck, 295; Gilchrist v. McGee, 9 Y. 457; Davis v. Smith, 1 Y. 498; Houston v. Pillow, 1 Y. 484, all citiDg this case.]</p>

<p>The safest rale in questions of boundary is, to compare the calls in the grant with the artificial and natural marks on the ground; and, if there be a fitness, it is certainly safer to ■ rely upon such evidence than upon loose statements of the parties. [See Bowman v. Cox, Peck, 364, and Fuña v. Manning, 11 Hum. 313, citing this case.]</p> <p>Admissions are properly received as evidence in questions of boundary, but with allowance, and are not conclusive, especially if they consist of loose statements made long before.</p>

<p>In an action against an innkeeper for property lost while in his custody, resort must be had to the law of the country where the inn was kept, to determine the rights and liabilities of the respective parties.</p> <p>Thus, where a man put up at an inn in the Cherokee nation, and his horse was missing in the morning, if he sues in the courts of this State, he must show what his rights and the defendant’s responsibilities are by the law of the Cherokees. [See State v. Foreman, 8 Y. 333, where this case is cited.]</p> <p>A count in case and one in assumpsit cannot be joined, and the defect may be taken advantage of by demurrer, arrest of judgment, or by writ of error. [But see, now, Code 2748.]</p>

<p>A person who believes himself to be the owner of a slave may recapture him without incurring the penalty of 1799, 28, 2, against enticing a servant or slave from the owner’s service. [But see Marshall v. Penington, 8 Y. 430, where this case is commented on.]</p>

<p>In proceedings against bail the scire facias should show how the bail became bound, whether by bond taken by the sheriff and returned into court or by recognizance.</p> <p>The judgment, on scire facias against bail, should be that the plaintiff have execution, &c.; ■ it will be error to render the judgment for debt and damages.</p>

<p>Under 1794,1, 52, a justice of the peace had no power to issue an attachment against the estate in his county of a debtor residing in another county. [Acc. Stewart v. Roberts, 1 Y. 390, citing this case; 1 Y. 125; 3 Y. 62.]</p> <p>Under 1794 also the defendant was not in court until he replevied the property attached, and was then in time to file a plea in abatement. [See Boyd v. Buckingham, 10 Hum. 434; 1 Tenn. 2; 3 Sn. 636; Code 3509, 3529.]</p> <p>When a plea in abatement has been overruled on demurrer, or stricken out, it is no waiver of the benefit of the plea, to plead to the merits.</p> <p>And, therefore, where judgment goes against the defendant, upon his pleas to the merits, the Supreme Court, on appeal in error, will re-examine the whole case, and, if satisfied that there is error, will reverse, and remand, with directions to reinstate the plea in abatement, and proceed thereon. [See editor’s note to Suggs ». Suggs, 1 Tenn. 2.]</p>

<p>Where the mutual covenants constitute the whole consideration on both sides, they are mutual conditions, the one precedent to the other, and the plaintiff must aver performance, and cannot enlarge the covenant by parol.</p> <p>Thus, where the defendant was to execute securities for the purchase-money of land at so much per acre, the quantity to be ascertained by survey to be made by the plaintiff, the latter must show performance on his part, by making the survey, and he cannot excuse the failure by averring a parol waiver of it.</p>

<p>It is no ground for reversal in a criminal case that the dates in the caption to the bill of indictment are in Arabic figures, and not in Roman numerals. [See Code 53.]</p> <p>An issue in a criminal case¡ certain to a common intent, though informal, is cured by verdict.</p> <p>Thus, though in strictness the language of the plea should be the language of the prisoner, “ he saith,” yet if the record ran, “ he appeared upon his arraignment and put himself upon the country,” it is good, and the want of a similiter is cured by verdict.</p>

<p>Indictment for Forgery.</p>

<p>When a statute directs a new act to be done in a certain case, or upon certain terms, or gives a new proceeding, and prescribes the manner and form of the proceeding, the manner and form so prescribed must be pursued.</p> <p>Thus, the order of the County Court directing the sheriff to sell land levied on by a justice’s execution, under 1786,14,10, must show that the execution came to the hands of a constable, and was by him levied upon the land. [See Erogg v. Haggard, 2 Y. 677, where this ease is cited and commented on.]</p>

<p>After the rescission or abandonment of a special agreement, compensation for partial performance may be recovered, equal to and limited by the value and extent of the benefit conferred. [Acc. Harrison v. Chilton, 5 Y. 293; Elliot v. Wilkinson, 8 Y. 416; Porter v. Woods, 3 Hum. 60; Hughes v. Gannon, 1 Sn. 625; Abernathy v. Black, 2 Cold. 317, all citing this case. Irwin v. Bell, 1 Term. 485.]</p> <p>Thus, -where plaintiffs and defendant entered into mutual covenants under seal, by which the defendant-agreed to purchase and deliver cotton, and the plaintiffs agreed to pay in money at three and six months, and paid a part of the first instalment in sugar and salt, i and the defendant refused to deliver' the cotton, but, upon presentation of plaintiffs’ account for. the sugar and salt, paid a part of the price, it was held, that the plaintiffs might recover the balance in assumpsit.</p>

<p>Several sets of sureties may be included in the same notice of a motion against the principal, for official delinquency, provided the notice distinguish the separate defaults of the officer for whioh each set of sureties is respectively liable; and separate judgments may be entered accordingly.</p> <p>The notice in such eases is the leading process; and if a party entitled to notice be not notified, but appear and make defence on the merits, this is a waiver of notice, and the want of notice cannot be insisted on in the Court of Errors. [Acc. Burt v. Davidson, 5 Hum. 425; Hearn v. Crutcher, 4 Y. 461: Tipton v. Harris, Peck, 414.]</p> <p>The Court will so mould its judgments as to make them consistent with the leading process, and reach the merits of the case. [Acc. Code 2974, 2923.]</p>

<p>Notes under seal, having been made negotiable by 1786, 4,1 (Code 1957), must, in order to hold the indorser, be presented for payment like promissory notes, and are entitled to days of grace. [Acc. Love v. Nelson, M. & Y. 240, and Brunson v. Napier, 1 Y. 200, citing this case.]</p>

<p>A joint demand cannot be set off against a separate one, nor vice versa, upon the ground that they are mutual debts under 1756, 4, 7 (Code 2918,1). [Acc. Robertson v. Talbot, 2 Y. 259, and Turbeville v. Broach, 5 Gold. 272, both citing this case. See, also, Code 2918 - 2925; Gatewood v. Denton, 3 Head, 380, and Ford v. Thompson, 1 Head, 265.]</p>

<p>The grantee or his heir cannot read a copy of the grant registered under 1800, 100, 1, without accounting for the absence of the original copy of the grant. [See Lannum v. Brooks, 4 Hay, 121; McClelland v. Dunlap, 2 Tenn. 183.]</p> <p>And if this be done, or if such original copy bé produced, yet if either the testimonial of the Governor, or the certificate of the Secretary of North Carolina has not been recorded in the register’s office, and so certified by the register, a copy from his office cannot be received in evidence.</p> <p>And this, notwithstanding the defendant claims under the same grant, if the production of his title was forced upon him by the erroneous determination of the Court in admitting the copy of the grant offered by the plaintiff.</p>

<p>When the use of the mail is resorted to, instead of personal service, for the purpose of giving an indorser notice of the dishonor of negotiable paper, the general rule is, that the notice must be sent to the nearest post-office to the residence of the indorser.</p> <p>Upon an agreed state of facts it appeared that the distance between the place of demand of payment and the residence of the indorser was fifty miles, that there was a post-office within four miles of the indorser’s store, through which he transacted all his business, and that the notice was sent to an office sixteen miles from his residence, through which the indorser transacted no business. Held, that the notice was insufficient, although the notary had sent the notices after inquiry. [See this part of the case commented on in Nichol v. Bate, 7 Y. 308, and Marsh v. Barr, Meigs, 71.J</p>

<p>This Court will not reverse, if it is clear that the right of the ease has been attained, though the issues submitted to the jury were informal, for the defect is cured by the verdict.</p>

<p>A blank indorsement and delivery of a note by the payee passes the title to the holder, although the indorsement may have been made at first for. a different purpose.</p> <p>Drunkenness, short of deprivation of reason, unless brought on by the opposite party, will not excuse from the performance of a contract. [Acc. Belcher v. Belcher, 10 Y. 121; Morris v. Nixon, 7 Hum. 579.J</p> <p>Delivery of the note of a third person lost in gaming is not absolutely void, but so at the election of the ioser, who must show his election by action against the winner within the prescribed time; otherwise the delivery will be good.</p>

<p>A judgment by motion cannot be bad against a coroner for the return upon ají. fa. of “ no goods found in my county ”; for the return, though informal, is substantially good. [Acc. Phillips v. Cunningham, 5 T. 416, and Hill v. Hinton, 2 Head, 128, both citing this case.]</p>

<p>Attachment, under 1794,1, is a process to bring the defendant into court, where he cannot be served personally, and can' only be effectual by actual seizure of property, or by garnishment where the garnishee is adjudged to be a debtor for a specific amount; and judgment against the defendant, without the ascertained existence of these prerequisites, is a judgment against one not before the court, and, for that reason, is void. [Acc. Nashville Bank u. Ragsdale, Peck, 298, citing this case.]</p> <p>The oath taken by the plaintiff to obtain the attachment cannot be contradicted for the purpose of defeating it, because the law has not given a traverse to the defendant; nor when the garnishee has been sworn can his oath be denied by the plaintiff for the same reason. [But the first remark is a dictum, and the rule is settled otherwise. 2 Sn. 420; 4 Hum. 846; 7 Hum. 465; 3 Sn. 636.]</p> <p>A garnishee cannot insist on matter which, by plea, would be good in abatement only of the attachment; that must come from the defendant.</p> <p>The Court will, in support of a judgment, arrange the proceedings of a term so as to make by transposition, those things done in the term to precede others which they ought to precede.</p> <p>Thus, where, upon attachment by garnishment, a judgment is taken by default against the defendant, and, afterwards, at the .same term, the garnishee is examined and admits indebtedness, the Court will transpose the proceedings so as to make the examination stand first; for, otherwise, the judgment would be void.</p> <p>When a garnishee appears, and is sworn, he is entitled to be discharged from further attendance, if no judgment can be rendered against him.</p>

<p>Defendant in error who had succeeded in the court below dies pending the writ of error*, scire facias issues, and is made known to the personal representatives; the cause stands for hearing at the first term. [Acc. Code 2944.]</p> <p>The plea of non est factum, specially stating that the bond for an appeal was signed in blank, held not sufficient for want of an averment that the same was not sealed and delivered; for there may have been a subsequent acknowledgment and delivery. [Acc. Grissom v. Fite, 1 Head, 335, citing this case.]</p> <p>An excess of damages in debt above that in the writ, not fatal to the judgment: it may have arisen by procrastination of the suit, and the objection does not go to the merits. [See Goodman v. Floyd, .2 Hum. 69; Thompson v. French, 10 Y. 458; Crabb v. Nashville Bank, 6 Y. 332.</p>

<p>Certiorari and supersedeas may be resorted to by a surety to have the judgment of the Court, whether, under 1820,24 (modified by Code 1978), he is entitled to be exonerated by reason of the stay of execution; and the judgment making the supersedeas effectual is final, and may be appealed from.</p> <p>But, under this act, the surety, who wishes to show his dissent to the stay of execution, must appear and enter such dissent before the justice; a notice to the officer serving the warrant will not be sufficient. [The law was changed by 1842, 186, 4, carried into the Code 8061. See 3 Head, 716; 1 Cold. 81; 4 Hum. 292.]</p> <p>Note. — Mr. Meigs (Dig. p. 77) extracts from this case the following rule : —</p> <p>“ A judgment to supersede an execution is final, and an appeal will lie from it.”</p> <p>On the contrary, Mr. Heiskell (Dig. p. 150) reads the point thus : —</p> <p>“ But an order refusing to dismiss a certiorari and supersedeas was held final. Sed query ? ”</p> <p>Again, Mr. Meigs (Dig. p. 4) abstracts the principal point in Reed v. Brewer, Beck, 275, in this way : —</p> <p>“ If a writ be issued before the cause of action accrued, this is matter in abatement, and must be so pleaded, and is waived by pleading to the action.”</p> <p>Whereas, Mr. Heiskell (Dig. p. 21) says, justly, I think, that no such point is decided.</p> <p>It is some consolation to find, as I do in these and a few other instances, such learned doctors differing in their reading of cases. Bor if they — now one and now the other — sometimes nod, an humble follower in their footsteps may well be allowed occasionally to nap, as, I fear, he will be found too often to have done. — Ed.</p>

<p>If a writ of error or appeal in the nature of a writ of error be dismissed in the Supreme Court, no judgment can be rendered for the principal debt, or twelve and a half per cent, given by the Act of 1817, oh. 119, § 2. Nor on affirmance can judgment be given for six per cent, in addition to the twelve and a half, under the Act of 1809, ch. 49, § 27. [See Craddicfc v. Pritchett, Peck, 22.]</p>

<p>Quiere, whether the holder of negotiable paper may sue the maker in the name of the payee for his use ? [This doubt is resolved affirmatively in Vincent v. Groom, 1 Y. 430, commenting on this case.]</p>

<p>A plea of tender of specific articles should aver that the defendant has always been, and yet is, ready to deliver the articles. [Acc. Miller v. McLain, 10 Y. 24?; Nixon v. Bullock, 9 Y. 415; 3 Y 459; citing this case.]</p> <p>The question is reserved as to what should be the form of pleading, if the articles tendered were of a perishable nature, and had actually been lost or become of no value in consequence ; but, probably, an averment of the truth in proper form would be sufficient.</p> <p>When the time of payment in specific articles depends upon the acts of the payor, he, and not the payee, must give notice of the time when he will be ready to make payment. [Acc. Grimes v. Bartee, 1 Y. 205, citing this case.]</p> <p>As, for example, where the contract was to pay castings at the payor’s furnace, so soon as his furnace should be able to make its next blast.</p>

<p>An adverse possession, in good faith, of granted lands, under color of title, for seven years, will operate as a bar, in ejectment, under 1794, 43, 4, although the person in possession show no title founded on the grant, by connected chain, legal or equitable. [See Gray v. Darby, M. & Y. 412, 420; Love ». Shield, 3 Y. 406; where this case is cited and commented on, and its ruling as to the character of the possession and title qualified. But the whole learning. on this subject has been swept away by the Act of 1819, 28, Code 27-68 - 2766. See Wallace v. Hannum, 1 Hum. 443, 448.]</p> <p>Note. —This case is cited in Rafferty v. Turley, 3 Sn. 171, for the remarks of Haywood, J., page 231, 232, on the subject of revising former decisions. — Ed.</p>

<p>To sustain the bar of the statute, of limitations under 1794, 43, 4, the possession must be sustained by a title connected with the original grant. [See Gray v. Darby, M. & Y. 410, t where this case is cited. See also the last preceding case, and the editor’s note to Weath-erhead v. Bledsoe, 2 Tenn. 352.]</p>

<p>An entry on the margin of a notary’s official book, opposite the protest, in these words, “indorser duly notified in writing, September 1, 1823,” is admissible in evidence, the notary being dead, to show the fact of notice, and will he sufficient when coupled with proof of the notary’s habit of business. [Ace. McNeill w. Elam, Peck, 268; Nichols v. Bank of State, 3 Y. 107. Nlcholls v. Webb, 8 Wheat. 326. See now Code 1801, 3787.]</p> <p>Retrospective laws in general are not prohibited by § 20 of the Bill of Rights, but only certain classes, such, for instance, as ex post facto laws and laws impairing the obligation of contracts. [Acc. Townsend v. Townsend, Peck, 1, which, see.]</p>

<p>An entry on the margin of the notary’s official book, opposite the protest, in these words, “ Indorser duly notified verbally, W. Perkins, N. P.,” which entry was made by the notary’s daughter, and by his instructions, is admissible as evidence, the notary being dead, to prove notice, and will be sufficient when coupled with proof of the notary’s habit of business. [See the last preceding case.]</p> <p>Each subsequent indorser acts upon this idea, that each preceding indorser has insured him against damage, and promised indemnification, and may, therefore, upon taking up the paper, recover from such prior indorser the full amount of the note. [Acc. Marr v. Johnson, 9 T. 4, citing this case.]</p>

<p>The Legislature of this State, like the Legislatures of all other sovereign States, can do all things not prohibited by the Constitution of this State or of the United States; and, amongst other things, may establish a banking corporation, with power to sue and be sued, and, consequently, to sue upon notes made payable at or discounted by the bank.</p> <p>By a provision of its charter, the bank of Nashville is not to trade in any sort of stock except bank-bills, &c.; and, by another provision, bonds, notes, and bills shall not be received at the bank unless made payable there; which implies that bills made so payable maybe received, discounted, and sued upon.</p>

<p>One who undertakes, for a reward, to convey produce, or goods of any sort, from any place upon a river to another, becomes thereby liable as a common carrier. [Acc. Turney v. Wilson, 7 T. 342, citing this case. See also Kirtland v. Montgomery, 1 Sn. 452; Meigs, 802.]</p> <p>The law throws upon the common carrier the burden of proof, and makes him liable for all accidents but those which are occasioned by the act of God or of a public enemy. [See Gordon v. Buchanan, 5 T. 71, 427.]</p> <p>Certain events may be specially provided against, and then the carrier will not be liable for them. [See 5 Y. 71; 7 Y. 343; 4 Y. 48; BY. 427; Meigs, 802.]</p>

<p>To establish the beginning and other corners it is not indispensably necessary that they should be marked, if they can be established by other descriptions sufficiently certain to enable the surveyor, chain-bearer, &c. to find them.</p> <p>Note. — In the original report a diagram is referred to as at the end of the volume, hut no such diagram was in fact inserted. — Ed.</p>

<p>A promissory note is not an extinguishment of the precedent demand upon which it is founded, and, therefore, a count upon the note, and one on the precedent demand, may bo joined in the same declaration. [See Nichol v. Thompson, 1 Y. 151 ¡ Harwell v. McCul-loch, 2 Tenn. 275.]</p> <p>Where, in debt, the jury “ found the issues in favor of the plaintiff, and assess his damages by reason of the several promises,” &c., so much of the verdict as is an answer to the issues may be received, and the rest rejected, and the verdict thus moulded into legal form.</p>

<p>An award good upon its face cannot be impeached but upon objections which go to the misbehavior of the arbitrators.</p> <p>If the reception of illegal evidence, or a mistake of fact appear "upon the face of the award, or by confession of the referees, it shall be recommitted; but the Court cannot inquire, by extrinsic testimony, into the justice of the award, for that would be to try the matters in dispute de novo., [See Conger v. James, 2 Sw. 213.]</p> <p>If the arbitrators, upon their award, have meant to go by the rules of law, and have mis~ taken the same, the award may, perhaps, be set aside for such mistake. [Acc. Nance v. Thompson, 1 Sn. 321.]</p> <p>But where no such intent appears, the most obvious deviations from the rules of law will \ not vitiate the award. [Citing 10 J. K. 149.]</p>

<p>The real commencement of the writ [suit?], for the purposes of computing time under the Act of Limitations, is the day indorsed on tile writ, which is by direction of an act of Assembly, and is, therefore, as much a matter of record as the writ itself.</p> <p>If the writ bear teste of a wrong date, and is made returnable at a term subsequent to that which is next after the date, it may be abated by plea; but pleading to the action is a waiver of the right, and, after judgment, it is no ground of reversal.</p> <p>Note. — This case is cited in our digests as turning upon the point, that the issuance of the writ before the cause of action accrues is matter in abatement which may (Heiskell’s Dig., p. 10), or must (Meigs’s Dig., p. 4) be pleaded in abatement. The Court was, however, unanimous that the date indorsed on the writ, which was after the maturity of the note in this case, was the actual commencement of the suit. There is a conflict in the decisions upon the point suggested, as will he seen from Heiskell’s Dig. § 35 ; 2 Y. 279 ; 2 Head, 52. — Ed.</p>

<p>The assignee of a note to pay a certain sum in bank-notes may, under 1801, 6, 54 (Code 1967), sue the assignor, or indorser, as well as the maker. [Overruled by Kirkpatrick v. McCullough, 3 Hum. 173; and see 6 Y. 437; M. & Y. 132; 6 Hum. 305; 4 Cold. 261; in all which this case is cited. See also Looney v. Pinckston, 1 Tenn. 384.]</p>

<p>A scire facias against heirs, under 1S09,121, 3 (Code 2257), should call upon the heirs to show cause why the plaintiff should not proceed against the heirs, in the action which depended against the ancestor at the time of his death, to the trial of the issues, and to verdict and judgment in respect of the real estate which descended to the heirs.</p> <p>If it also call upon the heirs to show cause why the suit should not be revived against them, it would be untechnical, but not fatally erroneous.</p> <p>It is not a good plea in abatement to such a sci.fa. that the defendants had not, at the time of issuing the writ, nor at any time before or since, any lands by descent and as heirs.</p> <p>The proper judgment upon such a sci.fa. is, that the plaintiffs have judgment of the lands descended generally, without specifying them. [Acc. Butterworth v. Brown, 7 Y. 468, citing this case.]</p> <p>Note. — The opinion delivered in this ease is only that of Judge Haywood, except that the plea filed was insufficient as a plea in abatement upon which all the judges agreed. Brown and Whyte, JJ. agreed that the judgment should be given for the lands descended generally. This latter fact seems to have escaped the notice of Mr. Heiskell, who, in his Digest, page 53, cites this case as in conflict with 7 Y. 467, on this point, when it is in accord. That the judgment should be for specific lands is only the opinion of Haywood, J. —Ed.</p>

<p>A power “ in my name and behalf to sign and indorse notes, payable and negotiable in the branch bank, &c., as well for discount as for collection, and to check for all' moneys which may be deposited therein to my credit, from time to time, until this authority be revoked,” will not authorize the attorney to draw and indorse a note for his own use and benefit. [Acc. Nichols v. State Bank, 3 Y. 110, citing this case; Nichols v. Thompson, 1 Y. 151.]</p>

<p>A suit may be maintained at law, by a distributee, upon an administration bond, against the representative or his surety, without first having ascertained the amount due by judgment or decree, upon a petition under 1762, 6, or by bill in equity. [Aco. Pass v. Dibrell, 8 Y. 474, citing this case; Justices v. Willis, 8 Y. 461.]</p> <p>If there be one breach well assigned in the declaration, a general demurrer will not lie. [Ace. Carroll v. Foster, 3 Y. 410.]</p> <p>That the representative did not make a just and true account of his administration within two years, is a breach of the condition of his bond, and well assigned.</p>

<p>Where there is a defective bond given for appeal from the County to the Circuit Court, the appellee has his election to consider the appeal as properly taken, or to dismiss it on motion.</p> <p>If he elect to proceed, the appellant having received the benefit of his appeal, the Circuit Court may consider the bond as good pro tanto, and give judgment against the principal and his sureties to the extent of the bond, and against the appellant alone for the residue. [See Jennings v. Pray, 8 Y. 87, citing this case.]</p> <p>If he elect to dismiss, which he must do at the first term, the Court should simply dismiss the appeal from the docket, award a procedendo to the County Court, and give judgment against the appellant for the costs of the Circuit Court.</p> <p>The Circuit Court has no power to give judgment against the appellant for debt, damages, or twelve and a half per cent, upon dismissing an appeal, except where the Legislature has expressly conferred it.</p>

<p>If a clerk of the County Court be improperly removed from office, and a successor appointed, the proper remedy to obtain restitution is by mandamus, and not an appeal from the order of removal. [Acc. Felts v. Mayor of Memphis, 2 Head, 650; Ragsdale v. State, 2 Sw. 416. But writ of error will lie to revise the proceedings. 2 Sw. 416; Sevier v. Justices, Peck, 334.]</p> <p>By the Act of 1817,132, 6, the County Court may remove its clerk, and appoint another, where the failure to produce his receipts appears of record, without any conviction of his delinquency by indictment. [Acc. Peck, 334; Evans ». Justices, 3 Hay. 26. And so under 1835, 55, and 1842, 147 (Code 507 - 511); 2 Sw. 416. See now Code 4061.]</p> <p>If an order of removal be made on an early day of the term, it is superseded by an order to reinstate the clerk made on a subsequent' day at the same term, whether such order of restitution was erroneous or otherwise; and the Court, at a subsequent term, cannot annul it; but it may then make a new order of removal for the previous default. [See Ragsdale V. Buford, 5 Hay, 119.]</p>

<p>To take judgment, under an original attachment, prior to the seizure of property by the sheriff, or ascertainment of funds in the hands of the garnishee, renders the whole proceedings as much void as to take judgment before service of an original writ. [Acc. Cheatham v. Trotter, Peck, 198, which see.]</p> <p>Whatever is not liable to execution is not liable to attachment, either for the purpose of supporting a judgment, or satisfying it after it should be pronounced. [See Hervey v. Champion, 11 Hum. 560, for the counterpart of this principle, where it is held that “ Whatever right or interest in property of a debtor, whether of a legal or equitable nature, would be affected by the lien of a judgment or execution, will, in like manner, be affected and made subject to the lien of an attachment.”]</p> <p>Bank-stock is not subject to garnishment, nor can it be condemned or sold at execution sale. [But see now Code 1487, 8034, 3097, 3478, 3500, 4283; Mayor of Nashville v. Thomas, 5 Coid. 602; Woodfolk ®. Whitworth, 5 Cold, 566.J</p>

<p>The common-law rule that any act or word of the testator which evinces an immediate purpose to revoke his will must have that effect, is repealed by 1784, 22, 11 (Code 2162), prescribing the solemnities with which a will of land should be made; for the rule became, thereby, applicable, that the annihilation of an instrument is to be effected by as much solemnity as was necessarily employed in its constitution. [Acc. Allen v. Huff, 1 Y. 409, citing this case, and thus stating the principle: “ The evidence of revocation must be of dignity equal to the instrument revoked.”]</p> <p>Thus, a testator makes his last will and testament, disposing of his real and personal estate, which is signed, sealed, published, and attested by two witnesses. Afterwards one of the witnesses, by order of the testator, and in his presence, makes alterations in some of the devises, both as respects the real and personal estate, but there is no attesting witness to the alterations; the testator put liis finger to the signature and said “ it was as he wanted it.” The witness making the alterations made an indorsement on the back of the will to refresh his memory. Held by the Court: — «</p> <p>1st. That this was no revocation of the whole will;</p> <p>2d. That the will, as it stood before the alteration, was a good will to pass the real estate; and, 3d. That, as altered, it was a good will to pass the personal estate according to the direction in the alterations.</p>

<p>The caption to an indictment should show that the grand jury were of the county where the indictment was found. [Acc. State v. Fields, Peck, 140; Cornwell u. State, M. & Y. 163, citing this case. But see Code 5242, as construed in State v. Davidson, 2 Cold. 185.]</p> <p>Confessions in a criminal case must be taken altogether, and not by parcels; and if the part of the confession which goes in discharge of the defendant is not disproved, the jury cannot be allowed arbitrarily to reject it, and to go upon that part only which criminates the defendant. [Acc. Crawford v. State, 4 Cold, 193, citing this case. And see what Peck, J. says in Young v. State, 2 Y. 293, commenting on this case.]</p>

<p>In an action for slanderous words the declaration must state that the words complained of were spoken by the defendant.</p> <p>If the words spoken were in substance, though not precisely, the same as laid, they will be sufficient to support the declaration; as, where the averment is, “you forged,” and the proof is, “ he forged.”</p> <p>When the charge is of an oifence for which, if true, the party accused may be prosecuted for felony or misdemeanor, the words falsely charging the same are actionable.</p> <p>A general assessment of damages on all the counts, some of them being bad, does not render the judgment erroneous since 1801, 6, 63 (Code 2969). [Acc. Anderson v. Read, 2 Tenn. 205.]</p>

<p> Removed into this Court by an Appeal in the Nature of a Writ of Rrror. </p> <p>The rule is, that where a corner is made, calling for a river, creek, or line, and the corner stands some distance from such river, creek, or line, that is nevertheless the boundary. Thus, where trees are called for in an old line, and the trees stand forty-one poles from the old line, and the next call is thence with the old line, the line is the terminus of the boundary, and not the trees. [Acc. Blount v. Medlin, 2 Tenn. 199; Bowman v. Cox, Peck, 864.]</p> <p>Note. — In the original there is here a reference to a diagram at the end of the volume, hut no such diagram was in fact inserted. —Ed.</p>

<p>A deed of the wife’s land, made by husband and wife, but void as to the wife for want of her privy examination, is nevertheless a sufficient color of title to sustain the bar of the statute of 1797, 43. 4.</p> <p>Under that statute, also, the cestui que trust is barred, whenever the trustee, in whom is the legal title, is barred. [And now, by 1819, 28 (Code 2763-2765), eqíútable as well as legal titles are barred. Belote v. White, 2 Head, 703.]</p>

<p>A plea of justification in slander must specify the circumstances of time, place, person, and subject, so as to identify them, or it will be bad, and will not be cured by verdict.</p> <p>Thus, to an action for words charging the plaintiff with being a “ beef thief, hog thief,'and sheep thief,” it is not a good plea that the plaintiff had stolen beef, hogs, and sheep; the plea should specify the thing stolen, the person from whom, and the time and place when and where.</p> <p>where the plea of justification is so fatally defective that it is not cured by verdict, it is error to enter up judgment on the finding, and such judgment will be reversed, and the defend- ! ant permitted to replead; and if he fail to replead, he will be precluded, on the new trial, from any evidence to establish the plea of justification.</p>

<p>Every contract stated in a declaration should tally precisely with the evidence given to support it; and, therefore, proof of a contract to pay money and iron, or iron only, is no proof of a contract stated to pay money only, and so the Court should have instructed the jury.</p> <p>Note. —Judge Haywood gives, in this case, an exhaustive analysis of the Act of 1807, 95,1 (Code 1790) and the rights of parties, especially as to notice, under contracts within its provisions.</p> <p>In Shelby v. Wynne, M. & Y. 93, the Court comment upon that part of Judge Haywood’s opinion which holds that an averment of demand, or notice, must he made in the declaration, and say that two of the members of the Court who decided this case were then present, and stated that neither 'of them concurred in the reasoning of the judge who delivered the opinion on that point. The ease of Denton v. Moore, 2 Tenn. 168, is cited as having long before settled the law otherwise. — Ed.</p>

<p>If a clerk of the County Court be improperly removed, and a successor appointed, a writ of error will lie to take the case to the Circuit Court for revision, as well as a mandamus to compel restitution. [See Hardin County Court v. Hardin, Peck, 291, and cases there cited. And see Fields v. State, M. & Y. 169, where this case is cited.]</p> <p>And the judgment of removal in such case would be erroneous, if made without notice to the clerk of the intended proceedings to remove him; or before the latter part of the last day of the term, under the Acts of 1817,132, and 1819,133.</p> <p>But it is not necessary that there should be a previous conviction of delinquency by indictment, although he has a freehold in his office under the Constitution of 1796, art. v. § 10, the tenure being during good behavior, of which he cannot be deprived, under section 8 of the Bill of Rights, but by the judgment of his peers, or the law of the land. [Peck, 291, and cases cited. See also Evans v. Justices, 3 Hay. 26.]</p> <p>These words, “judgment of his peers or law of the land,” mean by the verdict of a jury in case of disputed facts, or where the facts are otherwise legally apparent, by the judgment of a court legally constituted. [Ace. Fields v. State, M. & Y. 168; Tipton ». Harris, Peck, 414.]</p> <p>Nor would it be illegal or unconstitutional to say that the clerk may be proceeded against both civilly and criminally diverso intuitu; civilly, for the purpose of removal, and criminally, for the purpose of pronouncing a judgment of disqualification, after conviction on indictment.</p> <p>Note. — Thera is some apparent conflict between the remarks, arguendo, of the learned judge who delivers the opinion of the Court in this ease, and his remarks in Hardin County Court v. Hardin, Peek, 291, to which Mr. Meigs has directed attention in his Digest, 5 458. But there is no conflict in the points actually decided.</p> <p>This case is cited in Bob v. State, 2 Y. 179, for the remarks of Haywood, J. on pages 337, 338, in relation to revising the action of an inferior court refusing a writ of error or certiorari. — Ed.</p>

<p>The writs of certiorari and supersedeas are instruments, in the hands of superior jurisdictions, by which they can inquire into and control the exercise of inferior jurisdictions. [Acc. 4 Hay. 54, 09: 1 Tenn. 1.]</p> <p>And they may be used, in analogy to or in lieu of the writ of audita querela, to bring up a justice’s execution, and be relieved therefrom, upon the ground that the judgment had been paid. [See Barnes v. Robinson, 4 Y. 186; Rogers ®. Ferrell, 10 Y. 254; White v. Harris, 6 Hum. 421. And see Young v. Read, 8 Y. 299, and Gunn v. Benson, 5 Y. 222, citing this case.]</p>

<p>If a boundary be called for which can be ascertained, distance must yield, and you must stop at the boundary. [Acc. Jordan v. Payne, Peck, 820; Sims v. Baker, Cooke, 146.]</p>

In Error. Ejectment. The plaintiff’s grant called for 100 acres, and had ten calls of courses and distances, ending where the dispute began, at a hickory, thence two other courses to the beginning, which would exclude the land in dispute; but it was proved that the surveyor actually run west and south, so as to include about forty acres- more, on which the defendant resided, and would make an excess of about sixty acres to the whole quantity called for in the grant.

<p>There is no way to bring the evidence or affidavits used in the court below to the attention of the Court of Errors, except by bill of exceptions. [Acc. Allen ». State, M. & Y. 294.]</p> <p>A note to pay a certain sum of money in iron, “ or something else that I please,” is a prop, erty contract.</p>

<p>One partner cannot bind another by deed, unless by the terms of the partnership authorized to do so. [Ace. 1 Y. 26; 1 Hum. 119; 2 Hum. 531; 6 Hum. 261; 5 Hum. 37. But he may make an assignment under seal of the partnership effects, for the benefit of creditors.</p> <p>[' Lasell v. Tucker, 5 Sn. 33.]</p>

<p>Parties may, by consent, transfer a cause from the County Court to the Circuit Court for trial, where the cause is one which could have been brought in the Circuit Court by original writ. [Acc. Elkins v. Sams, 3 Hay. 44, which see. And see Greer v. Williford, Peck, 290.]</p>

<p>Where witnesses are put under the rule, persons not put under the rule may be examined to impeach the credit of those who were.</p>

<p>The judges are bound to interpret the Constitution in all its parts, and, therefore, to determine whether, under the provisions of Art. 6, § 8 of the Constitution of 1796, one of its members was disqualified to sit in a particular cause, by reason of his connection, by affinity or consanguinity, with one of the parties; it is not a question for the judge to determine for himself.</p> <p>And a j udge who is confessedly disqualified by such connection to sit in the cause may yet determine the question of the disqualification of a brother judge.</p> <p>There is no connection by affinity between a party to the suit and the judge whose son’s wife is aunt of such party. [See Const. 1870, 6, 11, and Code 89,18, 4098.]</p>

Ejectment. In Error. The record was opened and read, and the errors assigned were argued for five or six days ; and the arguments being closed and a day’s time taken to consider of the judgment which the Court should render :

<p>The sovereign legislative power of Tennessee, like the sovereign power of all other States, may do all things not naturally impossible which it deems promotive of the public welfare, except in such instances where, by the fundamental law, it is forbidden. [But see State Bank v. Cooper, 2 Y. 602, where Green, J. dissents from this doctrine to its full extent.]</p> <p>The right of trial by jury is constitutionally secured wherever punishment is to be inflicted, or the party is to lose his freehold, or his corporate rights, or his property; but where it is not so necessary to the welfare of the citizen, and may be dispensed with without endangering his independence or safety, the Legislature is left free to exercise its judgment in the adoption of modes of trial best suited to the subject.</p> <p>In all instances, therefore, where the Legislature has prescribed a proceeding by motion to obtain judgment for moneys due from public or private delinquents, where the judgment to be pronounced will not, directly or immediately, affect the individual rights and privileges secured to the citizens by the Constitution, the trial of facts may be without the intervention of a jury, if such be the meaning and intent of the law. [Acc. Sevier v. Justices, Peck, 334.]</p> <p>In the case of arresting a witness, or other person privileged from arrest on ca. s«., such as insolvents and the like, the arrest is good, till the party arrested cause himself to be discharged by habeas corpus. If, instead, he give a prison-bounds bond, it is a voluntary act, which he cannot afterwards avoid.</p> <p>Whoever appears in due time to a summary proceeding, ipso facto proves that he had due and timely notice. [Or waives the want of it. 1 Sn. 201; 2 Sn. 360; 11 Hum. 303; Cheatham v. Hodges, Peck, 177.]</p> <p>But the jurisdiction of a court is not founded upon its incipient process, that is to say, on notice in motions where notice is required; publication, where that is prescribed; an appeal bond in case of appeals; and the report of the sheriff in case of taxes; and the like</p> <p>Jurisdiction depends on the law; and in summary proceedings appointed by a general law the jurisdiction need not be stated, for the law does that, but the case which is brought before the Court should be the same as that defined in the law. [Acc. Cheatham v. Jones, 6 Hay. 37, and Singleton v. Bell, Cooke, 267, and cases there cited.]</p> <p>And the record of summary proceedings should not only show the cause to be within the jurisdiction, but that it was exercised in all the particulars presented to it, as the Legislature has directed; for each particular direction is a guard provided against the abuse or perversion '0/the delegated authority. [Acc. Francis v. Washburn, 5 Hay. 294;' Thatcher «.'Powell, 6 Wheat. 119; Rule’s Lessee v. Parker, Cooke, 365; S. C. 9 Cr. 64.]</p> <p>Although, in the beginning, an obligee may sue all the obligors jointly, or some separately, he cannot, when a joint action is once commenced, drop some who are liable, and proceed against the others. {Sed qucere de hoc. See Claiborne v. Goodloe, Cooke, 391. And see Code 2789.]</p> <p>Therefore, where the obligee in a prison-bounds bond moved ^hereon for a judgment against the principal obligor and all his sureties, some of whom afterwards died, pending the motion, and their deaths were suggested, and judgment taken against the survivors, without reviving against the personal representatives of those who were dead, the judgment was held erroneous. [But see Park v. Walker, 2 Sn. 603; Rice v. Kirkman, 3 Hum. 415; Burroughs v. Goodall, 2 Head, 29. And now, 1858, 39, Code 3697,3626; Smith v. Woods, 1 Cold. 539.]</p> <p>Note. — In Greer v. Miller, 2 Term. 187, and Tipton v. Harris, Peek, 414, says Mr. Meigs (Dig. page 632), the Court, in construing 1789, 57, 5, decided that, although the obligee may sue all the obligors jointly, or some separately, yet he cannot, when a joint action is once commenced, drop some who are liable, and proceed against the others. And if one or more die in a case where an action or motion has been begun against all, the law is not that there may, but that there must, be a revivor against the personal representatives .of the deceased. On tho other hand, in Claiborne v. Goodloe, Coolce, 391, the Court held that the death might be suggested, and judgment taken against the survivors. We believe, said the Court, that the word “shall” applies only as between the representatives and the survivors, so as to make them liable inter se for their proportions ; and that the word “ may ” relates to the remedy of the obligee.</p> <p>The latter is undoubtedly the better reading, and has practically prevailed. All the subsequent legislation, such, for example, as 1820, 25, 2; 1825, 65, tended in the same direction. And now, by the Code 2787-2790, there is no room for doubt.</p> <p>All of our earlier decisions, and notably Claiborne v. Goodloe and Tipton v. Harris, treat motions as actions, only differing in the mode of commencement. Banks v. Brown, 4 Y. 198. After the suit was instituted by motion, it was governed by all the general laws relating to actions. But statutes changing the common law mode of proceeding have always been construed strictly. Cooke, 267 ; 2 Hum. 13 ; 3 Hum. 415 ; 4 Hum. 57, &c. This was the case in regard to the attachment laws, until the Legislature had so repeatedly counteracted the decisions by special enactments to remedy the supposed defects, that the courts felt constrained “ to adopt such construction as will carry fully into effect the intention of the Legislature.” Bunyan u. Morgan, 7 Hum. 213. With deference, that is. precisely the true rule of action in regard to all legislation. A strict construction, so far as the provisions are intended to protect parties who may not have actual notice, and are not before the Court, is, no doubt, the object of special legislative requirements, and, manifestly, the dictate of justice and good sense. Therefore, says the principal case, the record in summary proceedings should not only show the cause to be within the jurisdiction, but that tho jurisdiction was exercised in all the particulars presented to it as the Legislature has directed; for each particular direction is a guard provided against the abuse or perversion gf the delegated authority. But when the motion has had the effect of bringing the parties before the Court, and they have entered their appearance, why should strictness of construction be longer resorted to ? Is not the case, then, in the condition of a suit commenced by actual summons ? “ The appearance,” says the principal case, “ is proof of notice.” It is difficult to see why, after such appearance, the action should not, in all respects, be governed by the general laws relating to actions; or why any greater strictness should be resorted to in applying those laws, than in other cases. The general spirit of the Code will, I think, be found in accord with these suggestions.</p> <p>Acting upon the rule of strict construction, our courts have held that a motion will not lie in the first instance, notwithstanding the Act of 1789, against the personal representatives of deceased obligors, but may be made against the survivors alone. 3 Hum. 415 ; 2 Sn. 503. In Houston v. Dougherty, 4 Hum. 505, they went h step further, and hold that if the principal obligor be dead, a motion cannot be made against the surviving obligors, his sureties. And in Burroughs v. Goodall, 2 Head, 29, it seemed to be considered the legal sequence of these decisions, that if any of the obligors die after the motion has hem made, and pending the litigation, the plaintiff could not revive ; thereby overruling, without referring to it, the principal case, where, as we have just seen, it was held that the plaintiff, under such circumstances, not only may, but must, revive. They went further, and held that if the principal obligor die, the suit not only abates as to him, but as to the survivors; thus making the plaintiff’s rights, acquired by the action, dependent upon a subsequent event over which he could have no control. Such a decision, be it right or wrong, carries us back fully a hundred years in judicial hermeneutics. The decision may be the legitimate result of the previous adjudications. But there must he an error either in the premises or the conclusions, when a cause in which all the parties have entered their appearance, and are regularly contesting, is thus terminated. The evil has, however, in a great measure, been remedied by Code 3597 and 3626, as construed in Smith v. Woods, 1 Cold, 539, — a decision in marked contrast with that in 2 Head, hy the same eminent judge, and which, in effect, overrules the previous train of cases. — Ed.</p>

<p>It is a rule of the common law, that if a party'be entitled to what he asks, and there be no other remedy, or not one sufficiently efficacious, he shall have redress by mandamus. Per Haywood, J.</p> <p>Under the special Act of 1823, 118, which directs the Treasurer of East Tennessee to issue to certain purchasers of lands at Hiwassee land sales a certificate for land at a given rate per acre, upon the return of a commissioner, appointed thereby, that he has failed to make a particular compromise, an assignee of such purchasers is not entitled to the certificate, nor, of course, to a mandamus to compel its issuance.</p> <p>In modern times great care has been taken in legislative enactments to mention the particular cases in the contemplation of the Legislature, and therefore the courts are not permitted to take the same liberty in construing them as they did in expounding the ancient statutes. Per Whyte, J.</p>

<p> Dill in Chancery. </p>