Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-01

I
showing that it was not made upon re-
turn of jury of view.
| Code, 1921, cited.
No. 81.
John c. Burts vs.. Robert Evans.
A writing, reciting purchase of ne
gro, for (Which have agreed to pay 81,
200," as shown by bill of sale, and stipu.
lating for a conveyance to the wife and
child of the vendor, when the sum OF
1915 should be paid to the vendee, he
having paid so much of the 81, 200, held
not to be mortgage, but a sale.
A declaration in assumpsit on this
writing, alleged that the defendant under
took, etc., that he would pay the plaintiff
81, 200, evidenced by writing-and made
profert, on oyer and demurrer, there was
held to be no variance.
No. 63.
JosephA Branner VS.. A. NJ Felkner.
The legality of a capture of private
property in time of war is not to be pre-
sumed but must be proved.
A private soldier, without orders, can
not make a capture of public property in
time of war, in the hands of citizens.
No. "a.
A. Fowler vs. L. D. Alexander
All demurrers must be special. Code,
S 1884.
In case between surety and the holder
of note, the fact of suretyship may be
proved at law by parol.
A party appearing on the face of a
note as joint maker, may plead in his
discharge, suretyship; notice to the holder
to sue, and failure for thirty days. Code,
5 l, 1868.
Case cited. England We. McKamy, 8
Sneed, 76.
No. So.
Alexander Stuart, Plaintiff in error, vs.. s.
s. McOuistion.
A Judgment, by motion, for costs un-
der the Code, 3,204 must have all the
requisites of other judgments by motion.
1t must show, by sufficient description,
the cause in which the costs accrued, and
the issue of execution, a sufficient return
of the execution showing search, and
want of property, the production of the
execution, on the trial of the motion, and
the right of the applicant TO judgment.
The clerk of a court can only recover
his own costs, not those due to Others
A defective judgment by motion, can
not be aided by facts appearing in bill
of exceptions.
Where there is a motion without notice,
this court will not correct the judgment,
or remand the cause for an amendment
equivalent to a new suit.
No. &c.
Richard Hale vs. George W.. Witt.
In IS49, Witt, by writing, signed by
both parties, agreed, with his grandfather
Hale, to live with him and his wife, du-
ring their natural lives; to take good care
of them; furnish them all the necessaries
of life; 10 be good and obedient to them,
as a son to his father and mother. Hale
agreed to give Witt, on his, Hale's death,
q tract of land, described in the writing.
In 1854 another writing was entered into,
defining more fully, in some particulars,
the duties, rights and obligations of each.
In 1856 this bill was filed by Hale, to res
end the contract, en- the ground of fail
undertakings, and charging many acts of
gross misconduct on the Witt. Held that
the bill did not make case for rescind-
ing the contracts, but that an account
should be decreed in favor of complain
ant, for all outlay incurred by him, on
account of failures on the part of Witt to
provide for him and his wife, and to per-
form his contract
No. 81.
Peter Sharp vs.. Geo. Fields, Jas. Ham
mock and John McHone.
A bill charging that the title of A., a
former owner of land, in fee simple,
'thas vested in complainant by operation
of law" sufficiently, alleges that he has
| title.
A charge in the bill, that defendants
were occupying lands at the death of the
tenant for life, and that complainant per.
mittel them to remain after the death,
i and is entitled, as owner, 10 one third of
the crops, as rent, is a sufficient charge
of Indebtedness, to support an attach
ment for rent. A court of equity has
jurisdiction of an attachment to enforce
a landlords lien for rent
|
No. G8.
T. d. Butcher, in error, Va. J. G. Palmer,
and others.
In warrant for forcible entry and de-
tainer for a school house, q description
as ''schoolhouse in the said Q0th) Civil
District (of Union county,) known as
Miller's School House, is sufficiently Ger
tain.
No written complaint is required in F.,
E. and D.
No. SO.
Joseph Williams in error VS.. Thomas God
frey.
In civil case either party has the right
to examine each juror Offered, to ascer-
tain whether he has formed or expressed
an opinion touching the merits of the
case.
No. 20.
Maria Anderson, by next friend, Lewis
Shepherd, vs.. James II. Anderson.
A married woman, to secure whose
"equity" bill has been filed in court by
next friend, may, upon examination by
the Chancellor, or out of court by Com
missioners appointed by the court, order
the dismissal of the suit and permit the
husband to receive the property abso-
lutely as his.
Case cited, Coppedge VS.. Threadgill, 8
Sneed SIT.
No. Il.
James Hubs VS.. Elijah Atkins and
VIM. Skaggs.
OPINION.
The bill in this case was filed in the
Chancery Court, at Maynardsvllle, to en-
join judgment for about eighty dollars
recovered before Justice of the Peace,
by the defendant, Atkins, against one
Galloway Kelly, and the complainant, on
a note TO which, as alleged, complainant
was surety for Kelly.
After the judgment was obtained, as
alleged in the bill, Galloway Kelly pro-
cured, without the assent of complainant,
one Miltabarger, 10 stsy it.
Galloway Kelly, the principal debtor,
and Miltabarger, the slayer, died, and de-
PENDANT, Atkins, procured an execution
and placed it in the hands of defendant,
Sksggs, a Constable of Union county,
who levied the sane on the property of
complainant, and this bill is filed to en-
join the Judgment and execution"
The defendant filed demurrer to the
bill, and, amongst other causes, assigned
the following: ''The Plaintiff cannot
be compelled to revive the judgment
mentioned against the principal, but may
proceed against the surety without re-