3^morg Idntoersitg IQitag
J87298
JUL 2 0 1948s
THE
TENNESSEE
JUSTICE'S MANUAL,
AND
CIVIL OFFICER'S GUIDE.
By JAMES COFFIELD MITCHELL,
One of the Judges of the Circuit Courts of Law and Equity
for the State of Tennessee.
ONE VOLUME, IN THREE PARTS.
u Amalor Doctrinm
NASHVILLE:
rrBUSHED by J. c: Mitchell and c. c koeyell.
Printed by Alien A. Hall.
1834.
DISTRICT OF WEST TENNESSEE
Be it remembered, that on the 15th day of November, in tiie fifty-seventh
year of the Independence of the United States of America, in the year of our
Lord one thousand eight hundred and thirty-two, James Coffield Mitchelt,,
Esquire, of the said district, deposited in this office tho title of a book, the right
whereof lie claims as author and proprietor; in the words following, to wit:
"The Ten nessee Justice's Manual and Civil Officer's Guide, by James Coffield
Mitchell, one of (he Judges of tho Circuit Courts of Law and Equiiy for the
State of Tennessee.—One volume, in three parts."'
In conformity to an act of Congress of the United States, entitled "An act for
the encouragement of learning, by securing (he copies of maps, charts and books
to the authors and propiietors of such copies during the times therein mentioned,"
and also to an net entitled "An act supplementary to an act entiled ' An act for
the encouragement of learning, by securing the copies of maps, charts and books
to the authors and proprietors of such copies during the times therein mentioned,'
and extending tho benefit thereof to the aits of designing, engraving and etching
historical and other prints. ' N A. M'NAIRY, Clerk
of said District,
ADVERTISEMENT.
In presenting this work to the public, the author has not studied his
own interest as much as he has that of making his hook of the first jlilily
to every man of business, whether he be a lawyer, doctor, farmer, mei'-
chant, or mechanic. The price is only throe doihrs; and the same per-
tion of information cannot he required from any other source for three
times that money. The book has been made to bring the knowledge of
the law tor the door and comprehension of every man; the justice of (he
peace, sheriff, coroner and constable can find a form, with a brief direc-
tion, for every official act or duty he has to perform. It contains, also,
the forms of all deeds of conveyance, deeds of trust, powers of attorney,
warrants of attorney, wills, codicils, and every other instrument of wri-
ting in force and use in this State. The work contains a greater portion
of the common and statute laws in force in Tennessee, than any other
work now extant. In fine, it is the People's Law Boom. Nor need they
fear that the approaching Convention will affect its utility, as the follow-
ing certificate of the whole Nashville Bar will indicate. For the merits
of the work, the author would beg leave to refer the public to the tusli-
menials of the Judges of the Supreme Court, and learned members of the
tar accompanying it. Tun ArnroR
TESTIMONIALS.
The undersigned, members of the Nashville bar, having- understood that
it is reported, and believed by many, that the approaching- Convention to
revise or remodel the constitution of this State, will, in a great degree, su-
pcrsede the usefulness of many works of legal character, and that particu-
larly it will render, in a great measure, useless the "Justice's Manual," a
book compiled by the Hon. James C. Mitchell—in justice to the author of
that work, beg- leave to state, that, in our opinion, its usefulness will not, in
the least, be impaired by any alterations or amendments which may be
made to the constitution. The common law of the State, the public stat-
utes now in force and use, particularly those which relate to the jurisdic-
diction and duties of magistrates, and the penal code of tho country, will,
iv
TESTIMONIALS.
of necessity, be retained ; as to abrogate them entirely would leave us with-
out a rule of action of any kind, and produce interminable confusion.
We take pleasure in again stating, what many of us before have stated,
that the work above alluded to is compiled with skill and ability, and from
the manner in which it is arranged, and the subjects upon which it treats,
cannot fail to be extensively useful, particularly to the magistrates of the
country, who will readily find within its pages a guide for most of the dif-
Acuities to which the nature of their office necessarily subjects them.
Thos. II. Fletcher, Andrew Hays, Sam'I. Watson,
Geo. S. Yerger, David Craighead, Edwin H. Ewing,
J. P. Clark, Francis P. Fogg, ■ Wm. Thompson,
Jas. Collins-worth, Dixon Allen, G. J\I. Fogg,
J. R. Wharton, William T. Brown, James P. Grundy,
O. B. Ilayes, Thos. Claiborne, Thos. J. Lacy,
Ephraim II. Foster, S. II. Laughlin.
I concur in opinion with the above named gentlemen of the Nashville
Bar. THOS. STUART, Judge, Ac.
The proposed convention will not necessarily, nor probably, change the
common law, nor many of the statutes now in force in Tennessee ; and, con •
sequently, it is not to be expected that the acts of that body will materially
affect the Justice's Manual, a work compiled by the Hon. James C. Mitch-
ell. I have not had an opportunity of perusing that work, and, therefore,
cannot speak of its merits; but, I have seen it asserted, upon high authori-
ty, that it is calculated to be very useful, and I have no reason to doubt it.
THOS. WASHINGTON.
Nashville, Nov. 1833.
Dear sir: I have examined with as much care as two day's time would
permit, the first 440 pages of the "The Tennessee Justice's Manual and
Civil Officer's Guide." 1 think it will well answer the purposes of a guide
to justices of the peace, and others. The forms, especially, I think excellent.
The book is printed with great neatness, and very uncommon accuracy. A
book of the kind has been greatly needed, by the magistrates of this State,
for years; especially the forms, which are indispensable to a correct perfor-
mance of their various and important duties.
With great respect, I have the honor to be,
Your obedient servant,
Hon. J, C. Mitchell. J. CATRON.
Nashville, 22d May, 1833.
Dear sir: Your M. S. has been before me for some time. I could have
wished ,however, that press of business had not necessarily called me from
such an examination of it as would enable me to form a more decisive opin-
ion of its worth than a hasty reading ofsome ofthe principal beads afforded.
All attempts hitherto made in Tennessee to furnish a manual for justices
TESTIMONIALS.
V
of the peace having failed, and the late digest of the laws fallen so far short
of the anticipations of the public in its favor, makes your work a desidera-
turn.
The great number of our statutes, and constructions put upon them, and
wide spread principles of the common law, found only in the lawyer's libra-
ry, make it important that the whole, in condensed form, should appear in
one volume. The hope is cherished, that when your labors shall so have
given it, there will be less cause for complaint of the so frequent failures in
the exercise of the extensive jurisdiction, both civil and criminal, confided
to the Magistrate.
With an earnest desire that you may be patronized,
I am, sir, yours, &c.
Hon. J. C. Mitchell. JACOB PECK.
Hon. J. C. Mitchell: Nashville, 22d May, 1833.
Sir—I have examined the portion of your manuscript which you placed
in my hands as particularly as the time afforded me would permit, and take
pleasure in recommending the work.
The justices of the peace in this State have heretofore been without the
means of obtaining the information necessaiy to an intelligent discharge of
their extensive and important jurisdiction; you have performed, in a man-
ner calculated to be highly useful, the difficult task of conveying that in-
formation with precision and accuracy, without rendering the work too vo-
luminous. I heartily wish you may obtain the patronage which your work
merits.
Yours, Ac. NATHAN GREEN.
I have examined different parts of "The Tennessee Justice's Manual and
Civil Officer's Guide," and I am well satisfied, from the clear and lucid ar-
rangement of the different titles, the plain and unambiguous style of the
composition, and the judicious manner in which the subject matter of each
title has been arranged, that it will prove a most valuable assistant to ma-
gistrates and constables—particularly the former,* and, indeed, the work
ought to be found in the library of every lawyer, as the forms and other
matter embraced in it will make it useful as a work of reference upon the
subject of magistrates' jurisdiction, &c. and will frequently save them both
time and labor. GEO. S. YERGER, Reporter.
Murfreesborough, 11th April, 1833.
I have examined a work about to be published by the Hon. James C.
Mitchell, entitled "The Tennessee Justice's Manual and Civil Officer's
Guide." I am satisfied that both the design and execution are such as to
render it a work of great convenience and utility, not only to justices of the
peace and ministerial officers, but also to lawyers, who are generally less
informed upon the subject of which it treats, than those generally deemed
of more importance: Hence we constantly see defeat, and unnecessary ac-
vi
TESTIMONIALS.
cumulation of costs by a part of the community least able to bear it. Much
of this, I am satisfied, will bo obviated by this work.
JAS. COLLINS WORTH,
AWy <yf the U. States for the District of W. Tennessee.
Nashville, May 27, 1833.
1 have examined with considerable attention the manuscript of a law
book about to be published by the Hon. J.C. Mitchell, and am of opinion
the work evinces much talent and legal research, and will be highly bene-
ficiol to all persons concerned in the administration of justice.
FELIX GRUNDY.
Nashville, November 28, 1833.
Dear Sir: I have read with care and attention your "Tennessee Justice's
Manual," and I unhesitatingly declare that I have met with no work of the
kind that surpasses it in excellence. In it is embodied all the common
law, and all the statutory laws of our State, both civil and criminal, apper-
taining to the duties of a justice of the peace in Tennesse ; and those laws
are condensed witlrso much perspicuity, and stated with so much plainness
and certainty, that no civil officer can err who will read. We have no oth-
er work in which can be found such a body of. law peculiar to this State, so
methodically collected and arranged ; and, therefore, the Tennessee Manual
will be highly useful also to the Bar, as a book of reference, in their daily
practice.
Conscious that your work deserves a very liberal patronage, I earnestly
hope the public will not withhold it.
With esteem, yours, TKO. H. FLETCHER.
Hon. James C, MItchell, Nashville.
Nashville, March 10,1833.
The undersigned have examined several of the leading' divisions of "The
Tennessee Justice's Manual and Civil Officer's Guide," proposed to be pub-
lished by the Hon J. C. Mitchell, and highly approve of the matter and
manner of the same. In this State, where justices of the peace are entrust-
ed with unusual and extraordinary jurisdiction, and where sheriffs and con-
stables are equally entrusted with important ministerial powers, uniformity
of proceeding is greatly to bo desired, and if adopted would be the sure
means of preventing much vexatious and expensive litigation. Believing
that Judge Mitchell's work, above mentioned, if published and brought in-
to general use, would have a happy tendency in producing this desirable
result, we desire to see the same published. The form of publication we
consider as being unusually cheap, and we hope the public patronage will
be such as amply to remunerate the author for bis praiseworthy undcrta
king. S. II. LAUGHLIN, JAMES RUCKS,
FRANCIS B. FOGG, J. S. YERGER,
W. E. ANDERSON, J. P. CLARK,
TESTIMONIALS,
vii
The undersigned, members of the Murfreesborough liar, havo, with much
satisfaction, examined the manuscript of the lion. James (J. Mitchell's
"Tennessee Justice's Manual and Civil Officer's Guide." The subjects
on which it treats are well arranged under appropriate heads; its defi-
nitions are plain and correct; its illustrations clear and forcible; and its
ionns find precedents good. They consider it just such a work as is much
needed ; and that it will fully meet the object for which it is designed.
It must be highly useful to every class of the community, but most espo-
oially so to justices of the peace and inferior executive officers.
CHARLES READY, ANDREW J.HOOVER,
SAMUEL ANDERSON, H. D. ROWAN.
NOTE.
The render will observe that the act of 1805, chapter 60, which pro-
hibited a justice of the peace from issuing a warrant in a civil suit un-
■less upon the personal application of the plaintiff, or his order in writing
to do so, has been repealed by act entitled "An act to prescribe the duties
of Justices of the Peace," passed the 8th of October, 1833.
"That hereafter it shall be lawful for any officer in whose hands any claim or
claims are put for collection, to apply to any justice of the peace for a warrant on
said claims, and it shall be the duty of said justice to issue the same without any
order in writing from the plaintiff: Provided, said officer shall first produce the
claim to said justice on which he wishes the warrant issued.'.
ERRATA.
Fourth line from the bottom of page 153, for malum, read mala.
Second line from the top of page 154, for malum prohibitum, read mala
prohibita.
Tenth line from the bottom of page 502, for first, before part, read one.
THE TENNESSEE
JUSTICES' MANUAL,
AND CIVIL OFFICERS> GLIDE.
PART FIRST.
CIVIL DIVISION.
CHAPTER I.
FORCIBLE ENTRIES AND DETAINERS.
No person or persons shall enter upon or into any lands, ten-
ements, or other possessions, and detain or hold the
\o£l» C. 14«
same, but where entry is given by law, and then on-
ly in a peaceable manner.
What constitutes a forcible entry is, the entry into lands, hou-
ses, or other possessions, with force or strong hand, or with weap-
ons,orthe breaking open doors, windows or other parts of a house,
whether any person he in it or not, or by any kind of violence
whatsoever, or by threatening to kill, maim, or beat ^ J4
the party in possession, or by any words, or other ac- l Haw. p. c.
tions, or such circumstances as have a natural ten-
dency to excite fear or apprehension of danger, or by putting out
of doors, or carrying away the goods of the party in possession,
or where the entry is made in a peaceable manner, and then by
force, &c. turn the possessor out of possession.
Most of the acts mentioned in the above definition, are also
A
2
CIVIL DIVISION.
indictable as breaches of the public peace, as will be shown
when we come to treat of criminal offences, as no person is
l Hawk. P. c. allowed to regain possession of any lands, tenements,
274, sec. 2. or 0t}jer possessions, of which he has even been dis-
possessed, but in a quiet and peaceable manner. The common
law is repealed which gave a man the right to repossess himself
by force under any circumstances whatever, as it was found ve-
ry prejudicial to the public peace, (which is always paramount to
private rights,) by giving an opportunity to powerful men, under
the pretence of feigned titles, forcibly to eject their weaker
neighbors, and also to retain by force their possession thus wrong-
fully taken.
As the mode of proceeding under this statute has been but lit-
tie understood by that useful class of judicial officers
1821. c.14.
under whose immediate jurisdiction it is placed, it is
thought advisable to point to the various classes of forcible entry
included in the general statutory definition separately. 1st. The
entry into lands, tenements, or other possessions, and to hold the
same with force or strong hand, if actual violence be used of any
kind, or where there are such number of persons together as to
show that they are acting in concert; in either case, this class will
be made out. 2d. If any person shall enter into lands, tenements,
or other possessions, with a view of holding the same with weap-
ons, though no actual force be used, he is nevertheless a forcible
enterer, as the law presumes the force from the weapons used.—
3d. Where any person, or persons, shall break open any doors,
windows, or other parts of a house, whether any person be in it
or not, and enter therein to hold possession of the same, such
person is a forcible enterer and detainer. 4th. Where such en-
try is made by any kind of actual violence whatsoever. 5th.
Where any person shall make an entry into any lands, tenements,
or other possessions, with threats to kill, maim or beat the party
in possession, with a design of holding such possession, such per-
son is a forcible enterer and detainer. 6th. Where any person
shall make an entry into any lands, tenements, or other posses-
sions, with the view of holding the same, by using such words or
actions, or under such circumstances as have a natural tendency
to excite fear or apprehension of danger, such person is a forci-
ble enterer and detainer. 7th. Where any person shall make
FORCIBLE ENTRY AND DETAINER.
3
an entry Into any lands, tenements, or other possessions, and put
the goods out of the house or other place where they are kept
by the owner, or by carrying away such goods with a view of
holding such possession, such person is a forcible enterer and de-
tainer. 8th. Where any person shall make an entry into any
lands, tenements, or other possessions, peaceably, and then by
force or threats, or other circumstances of terror, turn the party
possessed out of possession, such person is a forcible enterer, as
the law refers the unlawful acts which turn the inhabitant or
possessor out of possession, back to the moment of the entry, and
make it partake of all the subsequent acts. Each of these
eight classes are forcible entries and detainers.
We will hereafter treat of forcible and unlawful detainers; for
the present we will point out the mode of proceeding for any of
the foregoing entries and detainers.
The aforesaid forcible entries and detainers are cognizable
before any justice of the peace for the county where
rr . , , , , 1821- c-14' 56-
the offence is committed; that is to say, the complaint
is to be made to one justice, who is to judge of its sufficiency;
and upon the complaint being deemed sufficient, the justice to
whom the complaint is made must, upon the complainant's giving
bond and security, to be approved by said justice, for the due
prosecution of the cause, issue a summons for two other justices
of the peace at a certain day, on the premises, or at the place
where the forcible entry and detainer was and is made, as well
as a precept to the defendant to appear at such time and place
and make defence, and also to make out a precept to
, , , - I, 1821. c. 14,525.
the sheriff of the county to summon a jury, and sub-
poenas for witnesses, &c.; but the cause must be heard and de-
termined by at least two justices of the peace.
The complaint made to the justice by any person injured
must be in writing; it may be made by an agent or attorney.—
The complaint must be signed by such complain and specify
and describe the lands,tenements, or other possessions so forcibly
entered upon and detained, when done, and by whom, and the
kind of estate the complainant has in the same, after the form
following, by a party injured:
"The complaint of A B, a citizen of the county of ,
showeth to your worship, that on the day of 18 at to
■4
CIVIL DIVISION.
wit, Id the county of and state of Tennessee, that he was
Clements vs. possessed of a certain tract or parcel of land, with
andnt°Yer^eys a dwelling house thereon, and other necessary build-
Rep. 199. ings,. with three fields of cleared and inclosed land,
designed for cultivation, situated in the county aforesaid, on the
waters of and adjoining the lands of A D on the north, E F on
the east, H G on the south, and J K on the west, it being the
place whereon A B, the complainant, resided on the date afore-
said, and to which the complainant claims title in fee simple [for
life, or a year, or years, by descent, devise, or by lease, as the
1821 11 7 CaSe ma^ a cer^n ^ unlawfully, and with force
18 l. c.14, §7. armg an(j strong hand? broke and entered into
said dwelling house by breaking open the doors of the same, and
into the said three fields, situated as aforesaid, and of the other
necessary buildings thereon, and ejected and drove out the said
complainant with force and strong hand, and with such force and
strong hand holds and detains said premises, with the dwelling
house and other buildings thereon, from the complainant, and
against his will and consent, to his great damage ; he therefore
prays process against said C D, and that a jury may come to try
the complaint. (Signed) A B, Complainant.''''
The justice to whom the complaint is made, will receive the
same and note on the back of the same the day on which such
complaint came to hand, and then and there record it, with the
endorsement aforesaid, at full length in a minute book, word for
word and letter for letter, and into which all the subsequent pro-
ceedings must be accurately recorded in point of time as they
occur. Upon the complaint being received and recorded, the
justice of the peace will take of the complainant a prosecution
bond, with such security as he shall deem good and sufficient,
after the form following:
"Know^JlSlfe^by these presents, that we, A B and C D, are
held and firmly bound unto L M in the penal sum of two hundred
1822 35 an^ ^°^ars' weH an^ truly to be paid, &c. but to
be void if the said A B shall prosecute with effect an
action of forcible entry and detainer this day by him commenced
against the said L M, before me, or if the said A B fail therein,
forcible entry and detainer.
O
to pay and satisfy all costs and damages as shall be adjudged
against him; otherwise to remain in lull force and effect. Wit-
ness, the hands and seals of the said A B and C D, this day
of 183 AB, [ls.]
Witness, O P, Justice of the Peace. C D, [l.s.]"
And upon the bond aforesaid being given, the said justice
1821 ss shall issue a summons to the party complained against,
' ^ ' to the effect following, that is to say:
State of Tennessee,| ^s]lerjpf0f saj(j COunty, greeting.
You are hereby commanded to summon L M to be and appear
before O P, one of the justices of the peace in and forthecoun-
ty aforesaid, at the house of on the day of next, to
answer to and make defence against the complaint of A B, of a
forcible entry and detainer made by the said L M, into and upon
a dwelling house, by breaking open the doors of the same, and
into the fields and other necessary buildings thereon, being part
of a certain tract or parcel of land to which the said A B claims
title in fee simple, lying and being in the county aforesaid, on
the waters of and adjoining the lands of C D on the north,
E F on the east, G II on the south, and J K on the west, it be-
ing the place whereon A B, the complainant, resided on the
day of —it being the same house and premises at which L M
is notified to appear; and you,the said sheriff,have then and there
this precept, with a return of your proceedings thereon. Given
under the hand and seal of the said O P, this day of in
the year of our Lord 18 O P, Justice of the Peace."
Form of the sheriff's return upon said warrant.—"Came to hand
the day of 183 —Made known to the said L M the
day of 183 . R S, Sheriff."
At the same time the justice will issue a precept in the na-
ture of a venire facias, to the sheriff*, to summon a jury and two
assistant justices, after the form following, that is to say:
State of Tennessee,j ^the sheriff of said county, greeting.
Whereas, complaint in writing is made to the subscriber, one
6
civil division.
of the justices of the peace in and for said county, of a certain
forcible entry and detainer made by L M into the messuage and
upon the lands of a certain A B, in the county aforesaid, on the
waters of and adjoining the lands of C D on the north,
E F on the east, G H on the south, and J K on the west, it he-
ing the place whereon said A B resided on the day of
183 We command you therefore, that you cause to come be-
fore me, on the premises aforesaid, on the day of 183 ,
twenty good and lawful men, of the body of your county, above
the age of twenty-one years, and who are in no wise of kin to
the said A B, or the said L M, to make a jury of the country to
enquire of and try said forcible.entry and detainer; and you are
also hereby required to give notice of this warrant to at least two
other justices of said county, and to require their attendance at
the time and place aforesaid. Given under my hand and seal,
the day of in the year of our Lord 183 OP, [l.s.]
Justice of the Peace."
The summons must be served on the defendant, or a copy of
the same left at his usual place of residence, six entire days be-
fore the day of appearance therein mentioned, and a service of
the process in any part of the state is good and sufficient; but no
jury shall be sworn to try the cause unless the six days' notice, as
aforesaid, has been given.
The party against whom such complaint is made may, at the
time of the appearance mentioned in the summons, plead to
the charge "not guilty;" or he may plead three years' possession
in himself, in the form following: ilA B vs. L M—Forcible Entry
and Detainer.—The defendant says, the plaintiff his action of for-
cible entry and detainer against him ought not to have and main-
tain, because he says, that he hath been three years in the quiet
and peaceable possession of the premises set forth in the com-
plaint and process, in opposition to the plaintiff's right of pos-
session, and that his estate therein is not ended or determined,
of which he puts himself upon the country. (Signed) L M."—
And to such plea the plaintiff shall join issue, as follows: "And
the plaintiff doth the like. (Signed) A B." But if the defend-
ant, after he has been notified as aforesaid, does not appear at
the time and place required, or appearing does not plead to the
FORCIBLE ENTRY AND DETAINER.
7
said action, then it shall be lawful for said justices to proceed
in the same manner as if said defendant had pleaded not guilty.
But if it shall be desired by either party to postpone the trial
of the issue in consequence of the non-attendance of witnesses,
or for other good cause to continue the cause to some day
subsequent, supported by affidavit after the form following:—
"A B vs L M.—"In this cause the plaintiff [or defendant, as the
case may be] makes oath, that Caleb Truth is a ma- Affidavit for
terial witness for him, upon the trial of this cause of a continuance
forcible entry and detainer, that he has been regu- lst aPPllcatl0n
larly summoned, that he does not appear, that his non-attendance
is not owing to the default or procurement of this affiant, that
there is no witness in attendance by whom he can prove the
same facts so fully as by said Truth, that he cannot go safely to
trial without the benefit of said witness' testimony, and that af-
fiant believes he can procure his attendance at such future day
as the court shall assign. This continuance is not asked for de-
lay, hut for justice."
The above affidavit must be signed by the party making it,
and sworn to before the court; whereupon the court shall attest
the same in the following manner, that is to say— 2d application
"Sworn to and subscribed before us, this day of for continuance
183 ," and signed by each justice officially. The form of the
affidavit may be varied to suit any other cause for which a con-
tinuance ought to be granted. A first continuance may he al-
lowed upon a general affidavit; but in such case he The continu-
must he taxed with the cost of that day. But a se- anc® must b®
•'at the cost of
cond continuance for the same party, in this or any the party ask-
other form of civil action, ought not to he allowed Jfancef i82i!c~
but upon a special affidavit; that is to say, one con-14, ^15'
taining the substance of the form above, with the addition of
the facts he expects to prove by the absent witness, and then on-
ly upon the payment of the cost of the day from and on which
a continuance is granted; and if any negligence is chargeable,
then he ought to be taxed with all the costs that have accrued
up to and including that day. No continuance can be for a Ion-
ger period than fifteen days. Each party may at the trial chal-
lenge four jurors of the panel returned, without assigning any
cause for so doing.
8
CIVIL DIVISION.
Twelve jurors are the proper number for the trial af all caus-
es at the common law; but the legislature in passing this act,
1821. c. 14, } seems to have designed any number of jurors not less
10 and li. than twelve nor more than twenty, unless reduced by
. elements vs. challenges of the parties; and if the panel is redu.
andnt°Yerger's ce(^ by challenge or other good cause, the remainder
Rep. 198. are to be a jury to try the cause, provided the number
is not "reduced under twelve; but if reduced as aforesaid, then
the jury is to be made up to twelve at least, out of the by-stand-
ers. To the said jurors, and each of them who shall
1821. c. 14, §11 . J . '
be returned to enquire ot, and try said complaint, or
by-standers summoned for that purpose, the said justices shall
administer the following oath or affirmation: "You and each of
you do solemnly swear, [or affirm, if Quakers] that you will well
and truly try this issue joined between A B, plaintiff, and L M,
defendant, and a true verdict give according to evidence."
The jury being thus sworn, the complaint shall be read to
1821 14 11 ^em ky ^ie justices before whom the cause is trying,
' and the complainant then called upon io support his
complaint by proof.
It shall be the duty of said justices, not only to record at
length upon their minutes of the trial, the complaint,
1321« c. 14,$16. iii/1 t*
the bond for prosecution, the summons and service,
the precept to the sheriff and the respective returns thereon, the
plea and issues, and the form of oath administered to the jury,
but the names of the jurors, the names of the witnesses for com-
plainant and defendant, and the substance of each witness' tes-
timony, the admission of testimony objected to, and the reason
of such admission, the rejection of testimony offered and the
reason of such rejection; the verdict ofthe jury, which, if found
for the plaintiff, shall be in the form following, that is to say:
Form of a verdict for the plaintiff.—" At a court of inquiry
held before A, B and C, justices of the peace for said coun-
ty of on the day of at, to wit, in the coun-
ty aforesaid, at the [here describe the place where the court
was holden] the jurors aforesaid, upon their oath aforesaid, do
find the dwelling house and other necessary buildings, and the
three fields, cleared and inclosed as aforesaid, as in said complaint
FORCIBLE ENTRY AND DETAINER.
9
set forth, situate in the county aforesaid, on the waters of
and adjoining the lands of C D on the north, E F on the east,
GH on the south, and J K on the west, as in said complaint set
forth, upon the day of in the year of our Lord wag in
the lawful and rightful possession of said A B, and that the said
L M did, on the same day and year aforesaid, unlawfully, and
with force and arms and strong hand, enter forcibly upon and in-
to the said premises, and did then and there eject, expel and
drive out the said A B; and that he the said L M doth still con-
tinue wrongfully to detain the possession from him the said A B:
wherefore, the jury aforesaid, find upon their oaths aforesaid, that
the said A B ought to have restitution thereof according to law."
The verdict must be signed at its foot by all the jurors, and
returned to the justices after their names are all called over, and
they asked if they are agreed, and for whom they find. And upon
the receipt of the verdict the justices shall record the same on
their minutes at length, and render a judgment thereon in the
form following, that is to say: "It is therefore considered by the
justices aforesaid, that the said complainant recover of the said
defendant his "possession of, in and to the premises aforesaid, in
manner and form by the jury aforesaid found, and all the costs
in this behalf accrued, and that a writ of restitution issue,""&c.
This, and all other judgments in this action, must be signed by
all the justices. But if the jury should find for the defendant,
the verdict must be of the form following:
Form of a verdict for defendant on issue of not guilty,—"At ar
court of inquiry held before A, B and C, justices of the peace in
and for the county of and State aforesaid, upon the day
of at, to wit, in the county aforesaid, at —the jurors
aforesaid, on their oaths aforesaid, do say, that the defendant L M
is not guilty in the manner and form as complainant against him
hath complained: wherefore, the jurors find for the defendant;
and the jurors aforesaid, on their oaths aforesaid, do further say,
that the said defendant did not with force and arms and strong
hand enter into, nor does he wrongfully detain the possession of
the premises described in the complaint aforesaid."
Form of the judgment upon said verdict,—"It is therefore con-
sidered by the justices aforesaid, that the said defendant go hence
B
10
CIVIL DIVISION.
without day, and recover of the said complainant the cost in this
behalf accrued, for which an execution may issue," &c.
Form of a verdict and judgment upon three years' possession.—"At
a court of inquiry held before A, B and C, justices of the peace
in and for the county of aforesaid, on the day of at,
to wit, at in the county aforesaid, the jurors aforesaid, upon
their oaths aforesaid, find that the said defendant has had three
whole years' peaceable and quiet possession at and before the
filing of the complaint in this cause, of, in and to the premises
described in said complaint, adversely and in opposition to the
right of possession of the said complainant, and therefore the ju-
rors aforesaid, upon their oaths aforesaid, do further say, that the
said defendant did not unlawfully, with force and arms, and with
strong hand, enter into, nor does he now wrongfully detain the
premises described and set forth in said complaint. It is therefore
considered by the justices aforesaid, that the said defendant go
hence without day, and recover of the said complainant the costs
in this behalf accrued, for which execution may issue," &c.
Form of a verdict and judgment in favor of complainant upon the
issue of three years' possession.—"At a court of inquiry of forcible
entry and detainer, held before A,B and C, justices of the peace
in and for the county of and state aforesaid, on the day
of - in the year of our Lord , the jury aforesaid, upon their
oaths aforesaid, do find that the dwelling house and other neces-
sary buildings, and the said three fields cleared and inclosed as
aforesaid, in said complaint set forth, situate in the county afore-
said, on the waters of adjoining the lands of C D on the
north, E F on the east, G H on the south, and J K on the west,
as in the said complaint set forth, on the day of in the
year was in the rightful and lawful possession of the said
complainant, and that the said defendant did, on the same day
and year, unlawfully, and with force and arms, and with strong
hand, enter into, and upon the said premises, he, the said defen-
dant, not having been for three whole years quietly and peace-
ably possessed of said premises adversely, and in opposition to
the complainant's right of possession, as in pleading he has al-
leged: but did then and there eject, expel and drive out the said
complainant, and that he, the said defendant, doth still continue
wrongfully to detain the possession from the complainant, where-
FORCIBLE ENTRY AND DETAINER.
11
fore the jury aforesaid, upon their oaths aforesaid, do find that the
said complainant ought to have restitution thereof according to
law. It is therefore considered by the justices aforesaid, that the
said complainant recover of the said defendant his possession of,
in and to the premises aforesaid, in manner and form by the jury
aforesaid found, and all costs in this behalf accrued, and that a
writ of restitution issue, as well as execution for said costs," &c.
It is not lawful to issue a writ of restitution until after the ex-
piration of twenty days from the rendition of the judg-
1822 C- 35
ment. This delay in issuing the writ is to allow the '
defendant time to apply for and obtain writs of certiorari and su-
perscdeas, to remove the cause from before the justices into the
circuit court, as no appeal is allowed him.
Form of a Writ of Restitution fyc.
"State of Tennesseee) rr ,u r .«> r
' county \ ss'— ° shenn oi said county, greeting.
Whereas, at a court of inquiry of forcible entry and detainer,
held before us, three of the justices of the peace in and for said
county, at in the county aforesaid, wherein A B was complain-
ant and L M was defendant, on the day of in the year
the jurors empanneled and sworn by us on that behalf, returned to
us their verdict in writing, signed by each of them, that the said A
B was on the day of in the year aforesaid, in the lawful
and rightful possession of a certain dwelling house, with the oth-
er necessary buildings, and three fields, situate in said county,on
the waters of , adjoining the lands of C D on the
' J ° T7. 1821. c. 14,§13.
north, E F on the east, G H on the south, and J K on
the west; and that the said defendant doth still continue wrong-
fully to detain the said premises: whereupon it was considered
by us, the said justices, that the said complainant should have
restitution of the same. We therefore command you, that you
take with you the force of the county, (if necessary) and cause the
said A B to have the peaceable restitution of the same, and make
return of this writ, with your return how you shall have executed
the same endorsed thereon, within twenty "days next ensuing.-—
Given under our hands and seals this day of A. D. 18 ."
The justices must sign this writ with their official seals.
Besides the writ of restitution (unless the costs are paid by the
defendant within twenty days after the rendition of the judgment,
12
CIVIL DIVISION.
or the cause removed by certiorari) the said justices shall issue a
writ of fieri facias (or execution as it is commonly called) against
the said defendant, after the form following:
"State of Tennessee,) m ^ i c A
county v ss'— sheriff of county, greeting.
You are hereby commanded, that of the goods and chattels of
the said L M, if to be found in your county, you cause to be made
the sum of dollars and cents, which A B lately recover-
ed before us against the said L M, for costs on the trial of an
action of forcible entry and detainer, wherein said A B was com-
plainant, and said L M was defendant. Herein fail not, and have
this writ before us, and the moneys ready to render within the
time prescribed by law. Given under our hands and seals this
day of A. D. 18 ." [The justices will sign and
seal this writ officially.]
The foregoing is the ordinary form of a writ of fieri facias in
any action, and may be altered to suit any kind of judgment
rendered by one or more justices of the peace. The forms giv-
en in the foregoing pages, with very slight alterations, may be
made to suit the various classes of forcible entries and
1821. c. 14. -
detainers pointed out by the statute.
FOReiBLP AND UNLAWFUL DETAINER.
We will next proceed to point out the manner and form of
proceeding in a case of unlawful and forcible detainer, and also
in the case of unlawful detainer without force.
It will be perceived upon the slightest reflection, that both
of these kinds of injury or wrong must happen after lawful and
peaceable possession hath been obtained of lands, tenements or
other possessions: As where a tenant or lessee holds over and
beyond the expiration of his term, without the will or consent
of his landlord; or where a person is permitted to go into pos-
session for no definite time,(as mere tenant "at will of the land-
lord, and notice is given to such tenant at will to quit. Now
if either of these shall hold over in the first class, stated above,'
after the expiration of the term; or if he holds over, after no-
tice to quit, in the latter class, he will be unlawfully detaining
his possession. But if the landlord desire to enter upon and
take possession of the premises, and the tenant shall resist him by
FORCIBLE ENTRY AND DETAINER.
13
force and violence, or by threats and menaces, the detention of
the possession is unlawful and forcible, and] such tenant may be
proceeded against accordingly.
The complaint for an unlawful and forcible detainer might, with
small variations, follow the form of the complaint for a forcible
entry and detainer, until one arrives at the expressions "unlawfully
broke and entered into said dwelling house," &c. But to
prevent the possibility of mistake, we wrill here give the form
of a complaint for an unlawful and forcible detainer, which form
will also answer for an unlawful detainer, with a small varia-
tion. Thej detainer cannot be a forcible one unless actual force
be used, or unless threats and menaces of actual force be used to
deter and intimidate the complainant from entering, or attempt-
ing so to do; but if the defendant hold over without force or
threats, as aforesaid, it will only be an unlawful detainer.
Form of complaint for an unlawfxd and forcible detainer.
To O P, an acting justice of the peace for county and state of Tennessee:
The complaint of A B, a citizen of the county of show-
eth to your worship, that on the day of at, to wit, in the
county aforesaid, he was possessed of a certain lot of ground and
dwelling house, kitchen, smoke-house, stable and corn crib, erect-
ed thereon, situate in the town of and known in the plan of
said town by No. fronting feet on street, adjoining
the lot of C D on the north and E F on the south, to which lot
of ground and the buildings thereon complainant claims title in
fee simple [for life, or for a year or years, by descent, by devise, or
by lease, &c.} and being thereof so possessed, on the dciy and
year aforesaid, the said complainant, by deed of lease, did let and
lease the same to one C D, to have and to hold the same for the
term of twelve months from the date of said lease, for the price
of one hundred dollars per annum; that in pursuance of said
lease, the said C D entered into and took possession of the pre-
mises aforesaid, and that his term therein expired on the day
of in the year , and being so expired, ended and deter-
mined, the said complainant in a quiet and peaceable manner
went to and offered and attempted to enter into and upon the
premises aforesaid, to wit, on the day of in the year |
at, to wit, in the county aforesaid; but the said C D then and
there, with threats and menaces, and with force and- arms, "and
14
CIVIL DIVISION.
strong hand,, resisted him and drove him from the said premises, and
then and there refused to give and surrender the possession of the
same to the said complainant, although often requested so to do;
but then and now unlawfully, and with force and arms, and strong
hand, holds and detains the said premises against the rightful and
lawful claim and entry of the said complainant, and against his
will and consent, and to his great damage. He therefore prays
process against the said C D, and that a jury may come and try
the complaint."
The form of the complaint for an unlawful detainer is the
same in every respect, except the words, "with force ahd arms
and strong hand," must he omitted whenever they occur, because
no force or violence is necessary to be used in order to constitute
this species of injury. The offence is complete by holding over
after the demand of possession is made by the complainant,
and refusal to give up the same by the defendant.
The subsequent forms of the proceedings must, as in the case
Clements vs. of,a forcible entry and detainer, strictly follow the com-
andt0Ye^ger-ts plaint? Yiz. the summons, process, verdict, &c. must
Rep, 194. jn gubstance contain the same dates, descriptions, &c.
as set out in the complaint.
There are modes of proceeding merely to try the possession,
and to place it in the hands of him to whom it of
1821. c. 14,§20. r
right belongs. The title is not involved in the in-
quiry,nor is it to be drawn in question in the investigation; nor
shall a lessee or tenant be heard to say, that his landlord had no
right or title to the premises, until he shall have delivered up the
possession to him, and placed his landlord in the situation he was
before the tenant got possession. And any person coming into
possession, or in anywise taking or receiving the possession of a
tenant or lessee, either by contract or collusion, shall stand in
the same situation of the tenant or lessee himself.
No compensation can be awarded or adjudged to the party in-
jured, for any damage done the possessions in these forms of pos-
sessory action; but the party is left to his action of
1821. c. 14,§19. J ' r • .
trespass quare clausum/regit, action on the case, or other
action, to recover such damages; nor shall these proceedings be
any bar to such an action.
The justice of the peace before whom the suit is instituted,
FORCIBLE ENTRY AND DETAINER.
15
may, and he is authorized to issue subpoenas for wit-, „
1821, c. 14 {21
nesses to any part of this state, in favor of either par-
tj-
Form of the Subpoena.
State of Tennessee,| ^—To the sheriff of county, greeting:
You are hereby commanded to summon N O, if to be found
in your county, personally to be and appear before me, and two
other justices of the peace for the county of and state afore-
said, at the dwelling house of at in said county, on Fri-
day the of this inst. then and there to testify and the truth to
speak in behalf of A B, in a certain action of ford-
,, 7 7 • , 7 /. 7 , • 71 1821, c. 14,§21
ble entry ana detainer, (or unlawful detainer, as the case
may be) then and there to be tried, wherein A B is plaintiff, and
CD is defendant, and this he shall in no wise omit, under the
penalty prescribed by law: and have you then and there this
subpoena. Given under my hand and seal, this day of
A. D. 183 [The justice must sign and seal this subpoena
officially.]
If the jury summoned, or a part thereof, shall fail to attend,
the sheriff shall make up his panel of twenty, out of
. , _ 1821, c. 14,§22.
the bystanders.
Every juror summoned to attend the trial of any forcible
entry and detainer, or forcible and unlawful detainer, 1783 c> n, 52.
or of unlawful detainer only, who shall fail to attend, I82i.c. 14,{24.
or attending shall refuse to serve, the justice shall enter up a fine
of twenty-five dollars against him, nisi.
Every person summoned as a witness in such cause, and failing
to attend when called, or attending shall refuse to give evidence,
the justices aforesaid shall enter up a forfeiture, or conditional
judgment, for the sum of one hundred and twenty-five dollars, in
favor of the party for whom he is summoned.
Every bystander who shall refuse to serve as a juror, when
summoned to serve in any such cases, shall forfeit the
1779. c. 6.
sum of one hundred and twenty-five dollars.
Form of a conditional judgment against a juror for non-attendance.
"It appearing by the sheriff's return that G H has been regular-
ly summoned to attend here this day, to serve as a juror on the
trial of a certain action of forcible entry and detainer, wherein
16
CIVIL DIVISION.
A B is plaintiff and C D is defendant, who being solemnly called
came not, but made default: it is therefore considered by the jus-
tices aforesaid, that the said G H, for his said default in not at-
tending as a juror aforesaid, be fined in the. sum of twenty-five
dollars, payable for the use of the county of and all costs ac-
crued, and for which execution may issue, unless good cause shall
be shown to the contrary within ten days from this date, and
that a summons issue to make known," &c.
Form of a judgment against a juror who attends, but refuses to serve
as such.—^G H being summoned as a juror, to serve as such on
the trial of a certain action of forcible entry and detainer, where-
in A B is plaintiff and C D is defendant, and being in attend-
an ce refuses to serve as such juror: it is therefore considered by
the justices aforesaid, that the said G H, for this his refusal, be
fined in the sum of twenty-five dollars, for the use of the county
of and pay all the cost accrued, for which an execution may
issue," &c. ■
This judgment is unconditional, and cannot be set aside.
Form of a conditional judgment against a witness who fails to at-
tend.—It appearing to the satisfaction of the justices aforesaid,
from the sheriff's return on the back of the subpoena, that G H
has been regularly summoned as a witness on behalf of A B, to
appear here this day and give evidence on the trial of a certain
action of forcible entry and detainer, wherein A B
1821. c. 14, $24.
is plaintiff and C D defendant; that said G II
being solemnly called came not, but made default: it is there-
fore considered by the justices aforesaid, that the said A B re-
cover of the said G H the sum of one hundred and twenty-five
dollars, for such his non-attendance as a witness in this behalf, as
aforesaid, and the cost in this behalf expended, for which an ex-
ecution may issue, unless good cause be shown to the contrary
within ten days from this date: and that a summons issue to make
known," &c.
Form of a judgment against a witness who refuses to give evidence.
"It appearing to the satisfaction of the justices aforesaid, from
the return of the sheriff on the back of the subpoena, that G H
has been regularly summoned as a witness on behalf of A B, to
appear here this day, and give evidence on the trial of a certain
FORCIBLE ENTRY AND DETAINER.
17
14 ;p4 ac^on f°rcible entry and detainer, wherein A B
is plaintiff, and C D is defendant; and the said G H
appearing, and being in attendance under said subpoena, but re-
fusing to give evidence in the cause aforesaid, it is therefore con-
sidercd bv the justices aforesaid here, that the said A B recover
of the said G II the sum of one hundred and twenty-five dollars,
by reason of his refusing to give evidence as aforesaid, on the
trial aforesaid, and the cost in this behalf expended, for which
an execution may issue."
This last judgment, as well as the one against a juror who re-
fuses to serve, is absolute, &c.—that is to say, unconditional and
final, unless appealed from or removed by certiorari.
Form of a summons in the nature of a scire facias to a non-attending
juror.
SSlate of Tennessee,) w .1 •, ± r ,
county ( SS'— the sheriff of county, greeting:
Whereas, at a court of inquiry of forcible entry and detainer,
held at the house of at in the county aforesaid, the
day of 1S3 , wherein A B was plaintiff, and C D defend-
ant, the sheriff of the county aforesaid returned before us a pro-
cess, in the nature of a venire facias, that J K had by him been
summoned to attend as a juror, at the time and place aforesaid,
to try such issue as should be submitted by and between the said
parties, and the said J K on being solemnly called to come and
serve as such juror, came not, but made default: whereupon, it
was considered by the justices aforesaid, for such the default of
the said J K, that he be fined the sum of twenty-five dollars,
payable for the use of the county aforesaid, and for
IT.M, c. 11, 12. , . . ....
which an execution might issue, unless cause was
shown to the contrary. These are therefore to command you,
that you summon the said J K to be and appear before the justices
aforesaid, at the house of at in the county aforesaid, on
Saturday the day of A. D. 183 , to show cause, if he can,
why said conditional judgment shall not be made absolute and
conclusive against him, and execution thereof had according to
law. Given under our hands and seals this day of A. I\
183 ." [To be signed and sealed officially by the justices.]
C
18
CIVIL DIVISION.
The Officer's Return.—"Came to hand the same day issued.—
J K, Sheriff.
Made known to the defendant the day of 183
J K, Sheriff."
Form of an absolute judgment upon the return of a scire facias
made known and defendant fails to appear and show cause.—"At
in the county of on the day of 183 , the sheriff of
said county returned before us a summons in the nature of a sci.
fa., and that he had made the same known to the said A B, and
the said A B being solemnly called, came not to show cause,
as required by the said summons: it is therefore considered by
the justices aforesaid here, that the conditional judgment render-
ed against the said A B, on the day of 183 , be made
absolute and conclusive, and that the county aforesaid recover
of the said A B the said fine of twenty-five dollars, and all cost
in this behalf accrued, for which execution may issue. Given
under our hands and seals," &c. [To conclude as before.]
Form of a summons in the nature of a scire facias against jz non-
attending witness.
"State of Tennessee,) ss._To the sheriffof cou„tj, greeting:
Whereas, at a court of inquiry of forcible entry and detainer,
held at the house of at in the county aforesaid, on the
day of 183 , wherein A B was plaintiff and C D was
defendant, the sheriff of the county of made return of a cer-
tain subpoena, that he had summoned G H, as a witness on be-
half of A B, to be and appear at the time and place aforesaid,
and then and there to give evidence upon the trial of the action
aforesaid, and he, the said G H, being solemnly called, came not,
but made default: it was therefore considered by the justices
aforesaid, that the said A B recover of the said G H the sum of
one hundred and twenty-five dollars, by reason of his non-attend-
ance as such witness on that behalf, as aforesaid, for which exe-
cution might issue, unless cause was shown to the contrary.—
These are therefore to command you to summon the said G H to
be and appear before the justices aforesaid, at the house of
at in the county aforesaid, on Friday the day of 183
and show cause, if any he can, why the said conditional judgment
shall not be made absolute and conclusive against him, and exe-
FORCIBLE ENTRY AND DETAINER.
19
cution thereof be had according to law. Given under our hands
and seals this day of A. D. 183 .1' [To be signed and
sealed officially by the justices.]
The sheriff's return should be as in the last case.
Form of an absolute judgment on the defendants showing insufficient
cause.—"At, &c. the sheriff of said county returned here before
us, a summons, in the nature of a scire facias, and that he had
made the same known to the said G II, and the said G H ap-
pearing and not showing any good and sufficient cause against
said judgment conditionally rendered against him: it is therefore
considered by the justices aforesaid, that the said conditional judg-
ment rendered against the said G H, in favor of the said A B, on
the day of A. D. 183 ,be made absolute and conclusive,
and that the said A B recover of the said G II the said sum of
one hundred and twenty-five dollars, and all cost in this behalf
accrued, for which an execution may issue. Given under our
hands and seals," &c. [To conclude as before.]
In either of these cases, should the party fail to attend, or if
he shall attend and show cause, and such cause shall be deemed
by the justices insufficient, then and in that case they shall ren-
der up a final judgment against the defendant, and issue an ex-
eculion against the goods and chattels of such defendant, as in
other cases.
Form of an execution against a delinquent juror.
"State of Tennessee,| M>_To the sheriff0f county, greeting:
You are hereby commanded, that of the goods and chattels of
J Iv, if to be found in your county, you cause to be made the sum
of twenty-five dollars, which was lately assessed against the said
J K, for a fine under the act of assembly, for non-attendance as
a juror, before us, at a court of inquiry of forcible entry and de-
tainer, wherein A B was plaintiff and C D was defendant, and
the further sum of dollars, for costs in that behalf accrued.
And have you the moneys and this writ, with your return there-
on, ready to return and render within the time prescribed by
law. Given under our hands and seals this day of A.D.
183 ." [To be signed and sealed officially by the justices.]
20
CIVIL DIVISION.
Form of an execution against a non-attending zvitncss.
State of Tennessee,) —^ sheriff of county, greeting:
county,5 " & °
You are hereby commanded, that of the goods and chattels of
G H, if to be found in your county, you cause to be made the
sum of one hundred and twenty-five dollars, which A B recover-
ed against the said G H, before us, at a court of inquiry of for-
cible entry and detainer, wherein A B was plaintiff and C D
was defendant, for the non-attendance of the said G H as a wit-
ness in said cause, on the behalf of the said A B, in pursuance
of the act of Assembly, and the further sum of dollars, for
costs in this behalf accrued. Herein fail not, and have you
the moneys and this writ ready to return and render within the
time prescribed by law. Given under our hands and seals this
day of A. D. 183 ." [To be signed and sealed officially
by the justices.]
The fine imposed and collected for the non-attendance, or re-
fusing to serve as jurors, on the trials of actions of
- .; , . C • 1 182J, c. 14,^24.
forcible entries, &c. is to be paid over to the trustee
of the county where the cause has been or is to be tried, for the
use of the county.
The justice" of the peace issuing the process and summons,
shall keep the records or minutes of the whole pro-
1. 1 . , rn, 1 1821, c. 14,§25.
ceedings, recorded at length. 1 he reason why all
the proceedings should be recorded so exactly is, that the only
mode of removing the cause to another court for revision, is by
writ of certiorari; and the party applying to a judge of the Cir-
cuit Court, by petition, for writs of certiorari and supersedeas, is
required to present a copy of the record of the whole proceed-
ings, as they took place before the justices, certified to be a true
and perfect transcript of the minutes of all the proceedings in
the cause, by the justice whose business it is made to keep and
preserve the record. This is to enable the judge to see wheth-
er any error intervened on the trial of the cause.
Form of the justice's certificate.—"I, A B, an acting justice of
the peace in and for the county of and state of Tennessee,
certify the foregoing trial and proceedings were had before me,
and C D and E.F,two other justices of the peace in and for the
county of and state aforesaid, and that these sheets contain a
FORCIBLE ENTRY AND DETAINER.
21
true copy and transcript of the minutes or records by us taken of
all the proceedings in said cause. Given under my hand and
seal this day of A. D. 183 ." [To be "signed and sealed
officially by the justice.]
The sheriff of the county, to whom any precept or oth-
er process in an action of forcible entry and detainer [or un-
lawful and forcible detainer, or of unlawful detainer,] is direct-
ed, shall execute the same without delay, under the penalty of
two hundred and fifty dollars, recoverable by the party grieved,
in an action of debt in the county or circuit court.
jR c-bill in this action.—The justices before whom the trial and
determination is had, shall be entitled each to $2 50; the slier-
iff shall be entitled to the same fees as in the county or circuit
courts,&c. viz. by the act of 1821, which is amended by the act
of 1825, which allows the sheriff five dollars for all his services
in an action of forcible entry, &c. To each juror the same com-
pensation as is allowed in the county where the cause is tried for
attendance as such in the county or circuit court. To each witness
who resides in the county, 50 cents per day, with ferriage and
turnpikage, if any. To each witness who resides in any other
count}', §1 00 per day, and $1 00 for each twenty-five miles tra-
vel in going to and returning from the trial, with ferriages and
turnpikages, if any. These fees shall be taxed to and against
the party who is cast; and placed also on the back of the execu-
tion at length, thus—
Justices1 fees, $2 50 each, - - $7 50
Sheriff's fees, - - - - - - 5 00
Twenty jurors, each, -
A B, a witness from the county of , one day
and fifty miles travel, - - - - 3 00
C D, a witness in this county, one day, - 50
For a copy of the record, [when applied for by
either party,] - 1 62k
And so on, as the case may be.
The bill of costs must be signed on the back of the execution
by the justices. The fee-bill of costs must be attached to the
copy of the record before the certificate is made.
The justice who keeps the record is entitled to $1 62i cents
for a transcript of the same, when applied for by either party,
for any purpose, as has been above observed.
22
eivm division.
chapter ii.
ACTIONS OF DEBT, &c.
Justices of the peace have given them, by the act of assembly
of 1801, chapter 7, section 1, jurisdiction of all debts
1801, c-7'51 • an(j demands Gf fifty dollars and under, where the
balance is due by any contract, specialty, note, or agreement for
goods, wares and merchandize sold and delivered, or for work
and labor done, or for specific articles, whether due by obliga-
tion, note, or assumpsit; and the same are cognizable and deter-
minable by any one justice of the peace out of court, and judg-
ment may be given and execution awarded accordingly, subject,
nevertheless, to an appeal of either party, to be tried in the coun-
ir>09 54 ^ °r c*rcu^ courts: and by the act of 1809, chapter
54, it is enacted, "that a justice of the peace, out of
court, shall likewise have jurisdiction of all debts and demands,
from fifty dollars to one hundred dollars inclusive, where the bal-
ance is due on any specialty, note or agreement, signed by the
party to be charged thereby, or on a settled account, signed by
the parties," in addition to the jurisdiction heretofore granted to
justices of the peace out of court; and they may give, judgment
and award execution accordingly, from which judgment either
party may appeal.
A justice of the peace can exercise no jurisdiction over the
commercial transactions of men, except so far as it is given him
by the above statutes. And it is of vital importance to the safety
and security of our institutions, that all our courts of justice, and
every other department of government, should keep within their
defined and well-known bounds, as prescribed by the constitu-
tion and the laws of the state. The subjects of jurisdiction, under
the above statutes, naturally distribute themselves into matters
of debt, covenant and account. We will first treat of such as fall
under the head of debt.
All sums of money, of one hundred dollars and under, where
they are certain, or easily reduced to certainty, and due by bond
or note, with or without seal, or agreement signed by the party
to be charged thereby, or settled account signed by the parties
ACTIONS OF DEBT.
23
between whom such account exists, are properly subjects of debt
before a justice of the peace. The interest which Morrow vs.
has accrued upon any of these demands, (for each a n&d° Year's
will draw interest from the time they fall due) is a ReP-240-
legal consequence, and of course must form part of the judgment;
therefore, if the principal and interest, when added together,
shall exceed one hundred dollars, a justice has no jurisdiction
over it, for it is the balance due of both principal and interest,
that is to be adjudicated by the justice of the peace.
If the amount, as aforesaid due, is under one hundred and over
fifty dollars, it ought to be so expressed in the warrant, as well as
the kind of specialty upon which the suit is instituted, as the
warrant is a species of declaration, exhibiting in substance the
plaintiff's demand, as the following forms will indicate. And
before I proceed any further, I will notice another very import-
ant principle in practice, in civil suits, before a justice of the
peace, and which is almost universally violated—that is, in the
issuing warrants without the personal application of the plaintiff,
or his order in writing to do so. This violation of duty happens
not through design, but from negligence. Wherever a thing is
forbidden, it is called in our law malum prohibitum, or an evil
prohibited by the legislature; and where any person shall do the
thing prohibited, whether from negligence or design, ^
he is indictable for it. See the 5th section of the
GGth chapter of 1805, which is in the words following: "It
shall not be lawful for any justice of the peace to issue a war-
rant in any civil case, unless on the personal application of the
person wishing it to be done, or by his or her direction in writing;
which direction the justice shall preserve; and if any person
shall forge an order for the issuance of a warrant, he shall be
liable to be indicted," &c. This section of the statute was pass-
ed to prevent persons who have no right to a note or other in-
strument of writing, or upon an open account, from instituting
suits upon them for their own use, or otherwise; a practice of
almost daily occurrence. But an endorsement on the back of a
note, &c. is in law an order in writing, and shows the interest
to be in the endorsee.
24
CIVIL DIVISION.
Form of a warrant upon a balance due upon a bond wider one hun-
clred dollars.
"State of Tennessee,) ss,—To any lawful officer to execute and
county,5 re'urn.
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
C D of a plea of debt under the sum of one hundred dollars, for
the balance due upon a certain bond, with a condition thereto
annexed, executed by the said A B to the said C D. Herein fail
not. Given under my hand and seal this day of A. D.
183 ." [To be signed and sealed officially by the justice.]
The bond must be such an one as is described in the warrant,
or there will be a fatal variance between the allegations and the
proof. But it mattereth not how large the sum in the bond origin-
ally was, if it has been reduced to one hundred dollars, or under,
before the time the suit was brought. The word bond is by some
applied to all instruments under seal, (it would be more proper to
call all such deeds;) but bonds, in the sense we shall speak of
them here, are such instruments of writing, under the hand and
seal of the party to be bound thereby, as require the perform-
ance of some act on his part, or in which he promises and obli-
gates himself to indemnify the other party against the happening
of some injury, or performance of some duty. Such bonds are
technically called bills penal.
Where an action is to be brought upon one of these bills pe-
nal, the justice ought to be cautious in inquiring into
1801, c. 6,566. , ' J ° , , , . . * •
the real amount oi damage the plamtin has sustain-
ed; for, notwithstanding the penalty expressed in such bond does
not exceed the sum of one hundred dollars, yet, if the injury be
of such a nature as would require the interposition of a jury to
ascertain the damages, a justice has no jurisdiction over them un-
less they are found to be less than fifty dollars. And from my own
view of the constitution, I would say, that such dam-
Arnold v. Em- J
b-ee, Peck's ages should be twenty dollars, or less; but the old su-
Reps" perior court solemnly determined that a justice could
exercise such jurisdiction, without an infraction of the constitu-
tion, and that decision seems to have been ^acquiesced in ever
since by our courts. But if it were a bill single, or note with or
without seal, for the sum of a thousand dollars, absolutely, origin-
ACTIONS OP DEBT.
25
ally, and reduced by payments to a hundred dollars or.less, a
justice ot the peace may exercise his jurisdiction over that bal-
ancc by our statute of 1809.
The following is the form of a warrant for such balance, upon
a bill single, under one hundred dollars. A bill single is a note
or promise, in writing, under seal, to pay money at a specified
time, or on demand, &c.
'"State of Tennessee.) ss.—To any lawful officer to execute and
county,} return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of C D, in a plea of debt under one hundred dol-
lars, for a balance due on a bill single, or note under seal, exe-
cuted by said A B to said C D, for the sum of one thousand dol-
lars. Herein fail not. Given under my hand and seal this
day of 18 " [To be signed and sealed officially by the
justice.]
The term note of hand and promissory note, in common parlance,
is applied to both notes with and without seal; but by our law,
a promissory note is a promise in writing, signed by the maker
without seal, to pay a sum certain in money to the person men-
tioned in the said note, at a day appointed therein, or his order,
(to A B, or bearer) and such promissory note, imports a conside-
ration, and the money therein mentioned shall be construed to
be due and payable to such person, &c. which notes are usually
of the form following:
"Ten days after date I promise to pay A B, or order, the sum
of fifty dollars, value received. Witness my hand, this day
of IS (Signed) C D."
But if the instrument of writing imports a promise to pay a sum
certain in money, it matters not much what its form is, for the
effect of a promissory note will be given to it: as for instance, an
instrument of writing, commonly called a due bill, which is usual-
ly after the words following, viz.
"Due A B one hundred dollars, value received, this day of ■
18 C D."
Ins truments of writing of this kind are very common, and yet
nothing can be much more vague and .informal. There is lite-
rally no promise to pay. The law knowing no such term nsdue
I)
CIVIL DIVISION.
bill, will act upon it as on a promissory note then due, and so will
call it. More will be said upon this subject when we come to
speak of negotiable instruments. The word agreement, used by
our act of Assembly, will apply to all instruments of
1809, c. 54. , j i if +
writing not under seal, where one agrees to pay so
muchvif another shall perform some act or duty therein specified;
and the term specialty applies to all instruments of writing under
seal, as the term notes and agreements will include all such as
are not under seal..
Form of a warrant upon a promissory note, at the instance of the
payee against the maker.
"State of Tennessee,) ss.■—To any lawful officer to execute and
county,5 return.
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of C D, in a plea of debt under one hundred dol-
lars, due by a promissory note made by the said A B to the said
C D. Herein fail not. Given under my hand and seal this
day of A. D. 18 ." [To he signed and sealed officially
by the justice.]
Form of a warrant upon a note under seal, by the obligee against
the obligor.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return.
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of C D, in a plea of debt under one hundred dol-
lars, due by bill single, or note under seal, executed by the said
A B to the said C D. Herein fail not. Given under my hand
and seal, this day of A. D. 18 ." [To be signed and
sealed officially by the justice.]
Form of a warrant upon an agreement in zcriting, by the promisee
against the promisor.
"State of Tennessee,) ss.—To any lawful officer to execute and
county, y return.
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of C D, in a plea of debt under one hundred dol-
lars, due by an agreement in writing, signed by the said A B, arid
ACTIONS OF DEBT.
27
by him delivered for the use of the said C D. Herein fail not.
Given under my hand and seal, this day of A. D. 18 ."
[To be signed and sealed officially by the justice.]
All these forms are predicated on the idea that the sum de-
manded is more than fifty dollars; for where the sum is less than
fifty dollars, it ought to be so expressed in the warrant.
The foregoing forms will suit as precedents for all warrants on
specialties, notes or agreements, as between the maker and the
person to whom made, the obligor and the obligee. We will
now point out the form of the officer's return, which will be the
same in almost all civil actions.
Form of an officer's return on a warrantee.—"Came to hand the
day of 18 —executed for trial, before G II, at his
own house, on Thursday the day of next; this day
of 18 J K, Constable.
{Sheriff, or Deputy Sheriff, as the case may be.)
Ic is made the duty of the officer serving the warrant to re-
ceive the amount of money for which the suit is brought, both
principal and interest, and the cost of serving the warrant, with-
out commissions, and to receipt for the same, when
' ~ 1823, c. 40.
tendered to him. In such case, the officer's return
shall be as follows:
"Came to hand the day of A. D. 18 and served on
the defendant the day of at which time the said defend-
ant paid me the principal and interest due, amounting to
dollars and cents, and cents cost, for which I passed my
receipt. J K, Constable."
And by the same statute it is made the said officer's duty to
receive the principal and interest, and cost aforesaid, without
commissions, at any time before the expiration of the stay of ex-
ecution, and pass his receipt for the same. And to enable the
officer to perform this duty, the plaintiff must file his specialty,
note or agreement, or settled account, or open and unsettled ac-
count, with the justice, when the warrant is applied for; and the
justice shall fold it in or with the warrant, and hand the same
to the officer, who shall return the same with the warrant, at
the time and place of trial.
The following is the form of a judgment upon a balance due
by bond:
28
civil division.
"At my own house, in the county of on the day of
A. I). 18 —CD vs. A B.—The parties being present,
and the warrant and bond being read to the defendant, he says
the bond is his act and deed, but" that he is entitled to the
sum of dollars in payments on said bond; and the same be-
ing allowed by the plaintiff (or proved by the defendant, as the
case may be,) to be just, and the same being deducted from the
principal sum in said bond, and the interest thereon accrued,
leaves a balance of seventy-five dollars. It is therefore consider-
ed by me, that the plaintiff recover of the defendant the said
sum of seventy-five dollars, for principal and interest, and the
further sum of for the cost in this behalf accrued, for
which execution may issue. Whereupon the said defendant
prays a stay of the execution upon said judgment, which is al-
lowed him upon giving E F security therefor; and thereupon E
F came forward and enters into the following acknowledgment
of stay of execution, viz.
Form, of an acknowledgment of stay of execution.—"I, E F, a cit-
izen of the county aforesaid, hereby acknowledge and agree,
that if the execution of the above judgment shall be stayed and
delayed for the term of six months from this date, that when said
execution shall issue thereafter, that the same may issue jointly
against the said A B and myself, and against our goods and chat-
tels, in as full and ample a manner as though said judgment was
jointly rendered against us originally. Given under my hand
and seal this day of A. D. 18 . E.F, [l.s.]"
[To be tested by the justice of the peace.] •
This is the form that should be pursued in all cases of stay
of judgment. This acknowledgment shall be written by the jus-
tice, or the party staying, or some other person at his request,
and be read over by or to the party staying, and then the same
is to be signed and sealed by the party staying the same, which
acknowledgment must be witnessed by the justice of the peace.
It will be good if signed without seal.
There are but two modes of staying executions known to the
law, that is to say: First, by being present and signing and sealing
the acknowledgment of stay of execution where the record of
the judgment is made; or, Secondly, by warrant of attorney
made under the hand and seal of the party agreeing to stay suGh
ACTIONS OF DEBT.
29
execution, directed to the justice, or some one else, to sign the
acknowledgment of stay for him. This warrant of attorney
must show the parties to the action, or actions^ in which he pro.
poses to stay the execution, and in substance show upon what
the action is founded, so that the same may be certain to a com-
mon intent. It is not important what the form of the warrant
of attorney shall be, so that it he under hand and seal, and show
the maker's intent to stay the execution upon some particular
judgment; but it would be best that such warrant of attorney
should be of the form following, viz.
"To G II, Esq.
Sir: I have agreed to become the security for the stay of an
execution for the defendant, upon such judgment as shall be
rendered against him before you, on the balance of a bond which
was given by A B to C D, in a case wherein C D is plaintiff
and A B is defendant, for a sum not exceeding dollars;
and you are hereby authorized and empowered to sign, seal and
acknowledge such stay for me. Given under my hand and seal,
this day of A. D. 18 J K, [n.s.]"
And where the same is directed to any other person than the
justice, it ought to be formed thus:
"To J K.
Sir: I have agreed to become security for the stay of an exe-
cution for the defendant, upon such judgment as shall be render-
ed against him before G II, Esq. a justice of the peace for
county, upon a balance of a bond which was given by A B to
C D, in a case wherein C D is plaintiff and A B is defendant,
for a sum not exceeding dollars; and you are hereby author-
ized and empowered to sign, seal and acknowledge such stay for
me. Given under my hand and seal, this day of A. D.
18 L M, [L.S.]"
Which warrant of attorney must be filed away by the justice
of the peace, with the papers of the cause.
I have here used the words warrant of attorney, and no other,
in relation to the instrument by which the stay of an execution
is to be acknowledged by another person, because I know of no
instrument of less legal validity which would authorize so solertin
an act, as the confession of a judgment, by which the goods and
chattels, and, in default of them, lands and tenements, may be
30
CIVIL DIVISION.
sacrificed,- and even the liberty of the person making such in-
struments of writing for a time be taken from him. And I pre-
sume the Supreme Court meant no less an instrument, when
treating of the subject of staying executions before a justice of
Hickman vs. the peace, in the case of Hickman against Williams,
and1'Yerg-er^s The term warrant of attorney, is always applied to
Rep. 116. what is most usually called a power of attorney, when
the object is to confess a judgment, dismiss a suit, &c. It is de-
fined by Burns in his Law Dictionary, 433,* to be "a writing
under seal of any person authorizing another person in his turn
or stead, to do any lawful act." The form of these warrants of
attorney were anciently very brief. Thus, by a plaintiff:
"London.—A B puts in his place E F, his attorney, against C
D, in a plea of trespass on the case, (or according as the action
may be.) Given under the hand and seal of the said A B, this
day of A. D. A B, [l.s.]"
For a defendant thus: "London.—C D puts in his place G II,
his attorney, at the suit of A B, in the plea aforesaid. Witness
the hand and seal of the said C D, the day of
C D, [l.s.]"
By these brief warrants, the attorneys therein mentioned
were authorized to do all, any, and every act or thing that could
have been done by the parties themselves.
Having said all that is necessary as to the modes of proceed-
ing under the act 1809, between obligor and obligee, payor and
payee, promiser and promisee, &c., we will now proceed to
point out the manner of proceeding between endorsee or as-
signee, and maker. All bills, bonds or notes, for money, as well
those with seal as those without seal, those which are not express-
ed to be payable to order, or for value received, as those which
are expressed to be payable to order, and for value received,
shall, after the passing of this act, be held and deemed to be ne-
gotiable; and all interest and property therein shall be transfera-
ble by endorsement, in the same manner, and under the same
rules, regulations and restrictions, as notes called promissory or
*Burn's Law Dictionary, 433. See an old work called the Attorney's
Practice in the Court of King's Bench; the edition from which these forms
are taken, was printed in the year 1739.
ACTIONS OF DKBT.
negotiable notes, have heretofore been; and the en-
dorsee or assignee may have and maintain his ac-
tion of the case for the same, in his own name. By a subsequent
statute, the assignee is authorized to maintain an ac-
, 1789. c. 57.
tion of debt in his own name, as assignee in such
instruments of writing. See bills of exchange and promissory
notes.
The following is the form of a warrant by the assignee against
the maker of a note under seal, for a balance due thereon un-
der one hundred dollars:
"State of Tennessee,) ss.—To any lawful officer to execute and
county,3 return.
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of E F, assignee of C D, of a plea of debt for a
balance under one hundred dollars, due upon a note under seal,
executed by the said A B to the said C D, and by him assigned
to the said E F. Herein fail not. Given under my hand and
seal, this day of A. D. 18 ." [To be signed
and sealed officially by the justice.]
Form of a warrant by the assignee against the maker, upon a bond
for a balance due thereon, under one hundred dollars.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return.
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
E F, assignee of C D, of a plea of debt, for a balance under
one hundred dollars, due by a bond executed by the said A B
to the said C D, and by him assigned to the said E F. Herein
fail not. Given under my hand and seal, this day of
A. D. 18 ." [To be signed, &c.]
Form of a warrant by the assignee against the maker of a note
under seal, the original amount whereof is less than one hundred
dollars.
"State of Tennesseee) ss.—To any lawful officer to execute and
county, £ return.
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of E F, assignee of C I), of a plea of debt due
32
CIVIL DIVISION.
bj note under seal, under one hundred dollars, which said note
Was executed by the said A B, to the said C D, and by him as-
signed to the said E F. Herein fail not. Given under my hand
and seal, this day of A. D. 18 [To be sign-
ed, &c.]
Form of a warrant by the assignee against a party to be charged
for a balance due on settlement of accounts signed by the parlies.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return.
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to an-
swer the complaint of E F, assignee of C D, of a plea of debt
due by a settled account signed by and between the said C D
and the said A B, the balance being against the said A B, and
in favor of the said C D, and by him assigned to the said E F.
Herein fail not. Given under my hand and seal, this day
of A. D. 18 ." [To be signed, &c.]
The foregoing forms will enable a justice of tlie peace to
model any case to suit these forms as between assignee and assign-
or, though the statute of 1789, ch."" 57, has been cited to show
that bonds as well as notes with and without seal, &c. are ne-
gotiable and assignable, &c.; yet some of these cases would be
cognizable under the act of 1801, which authorises
1801. c. 6. b '
suits to be maintained, both at law and in equity, by
an assignee in his own name against the maker, upon bonds with
collateral condition, bills or notes for specific articles, or the per-
formance of any duty. At the trial, it is necessary in cases of the
nature of the foregoing forms, for the assignee to prove the as-
signment by the subscribing witness, if there is one, or by prov-
ing the hand writing of the assignor (where there is no witness
to the assignment,) by a person who can take upon himself to
swear that he is acquainted with the handwriting of the assign-
or, either from having seen him write, or from letters received in
a course of correspondence with him.
The same proof must be made in all cases between the as-
signee and maker of the instrument. And when such plaintiff
on the trial produces his bond, note, bill, agreement, &c., sign-
ed by the party to be charged thereby, or settled account signed
by the parties, and proves the assignment in one of the modes
ACTIONS OF DEBT.
33
pointed out above, he is entitled to recover against such maker,
unless he will tile his plea in writing, signed by his
own name, and verified by the oath of the defend-
ant, that the same is not his act and deed, which is called the
plea of non est factum.
And by an act of assembly, it is declared, "that it shall not be
lawful for any justice of the peace, or any court in this ^
fcfiafe, to sutler any person who may be sued on any
bond or note, whether the same be with or without seal, to deny
the execution of the same, unless he, she or they will deny the
same on oath, in writing, signed by such party; the form of
which plea is as follows:
"C D vs. A B.—Defendant comes and says, that the plaintiff
his action aforesaid against him ought not to have and maintain,
because he says the b'ond [note, or other agreement under seal,]
is not his act and deed."
If the instrument of writing is not under seal, then say, "is
not his act, promise or agreement."
The affidavit attached to such plea must be as follows:
"The said A B makes oath that the above plea is true.
(Signed) A B.
Sworn to and subscribed before me,)
this day of A. D. 18 §
G H, Justice of the Peace."
Besides the plea of non est factum, the defendant may show
by proof that the instrument of writing was given for i?gg ^ g
a gaming consideration; for by law, "every promise,
agreement, note, bill, bond, or other contract to pay, deliver or
secure money, or other thing, won or obtained by playing at
cards, dice, billiards, horse-racing, foot-racing, or any other spe-
cies of gaming whatsoever, or by wagering or betting on either
of the parties who shall play at such games, or run such races, or
to repay or secure money, or other thing, lent or advanced for
that purpose, shall be void;" or the defendant may show that ho
was an infant when the bond, note, bill, or other instrument of
writing was made and executed by him. By the word infant, is
to be understood all persons under the age of twenty-one years;
and all such may avoid any instrument of writing given by them,
whether with or without seal, even should the same be given for
E
34
CIVIL DIVISION.
Max. on Bills, necessaries. The plea of infancy is a personal privi-
53 S© 0&166
2oi. 'i Term lege, and no third person has a right to take advan-
Rep. 648. tage of it. It must be taken advantage of by the
person relying on it, in person; that is to say, that he was himself
an infant when such instrument was made by him. Or an heir
White vs. Flo- may say his ancestor was an infant; or a person
2aTermhRep. claiming an estate under an infant, may say that the
431< bond, or other deed, which is intended to affect his
interest or right, was made by the party in a state of infancy.—
This, like a gaming consideration, may be given in evidence by
way of defence, and need not be pleaded in writing before a
justice of the peace; but instruments given by an infant are only
voidable, and not absolutely void, unless given for such conside-
ration as would make them void if given by any other person,
as upon consideration turpi causa. Such infant may therefore
affirm the same after he has become of full age, by saying that
they were just, and he would pay them, or the like. All that
has been said upon these forms of action and of defence, is pre*
dicated upon the idea that all the sums claimed and demanded,
are between fifty and one hundred dollars.
Form of a judgment for the assignee against the maker, fyc.—"At
my own house in the county of on the day of 18
the parties being both present, and the warrant and note under
seal being read to the defendant, he says that the said note is his
act and deed, but that he knows nothing of the assignment
thereon; but the assignment being proved, it is therefore con-
sidered by me, that the said E F, assignee as aforesaid, recover
against the said defendant the sum of dollars, for principal
and interest, and all the cost in this behalf accrued, for which
an execution may issue."
The stay of execution or appeal as before.
Form of a judgment of non-suit for want of proof of assignment.—
At, &c. (as before) the parties being both present, and the war-
rant and note under seal being read to the said defendant, he
says the said note is his act and deed, but he knows nothing of
the assignment; and the plaintiff failing to prove the same, it is
therefore considered by me that the said plaintiff be non-suited,
and that the defendant go hence without day, and recover of the
ACTIONS OF DEBT.
35
said plaintiff the cost in this behalf accrued, for which execution
may issue."
Judgment for defendant upon a verbal plea that the note was given
for a gaming consideration.—"At, &c. (as before) the parties be-
ing present, and the warrant and note under seal being read to
the defendant, and the assignment thereon, the said defendant
savs, that he made and executed the said note, and that the as-
signment is the proper endorsement of the said C D, but that
the said note under seal is founded on a gaming consideration;
that is to say, that it was made and executed to secure the pay-
ment of fifty dollars, won of him the said defendant, by the said
C D, upon a horse-race, and for no other consideration whatever;
and the evidence on both sides being heard and understood, it is
therefore considered by me, that the said note is founded upon a
gaming consideration and no other, and therefore void and of
non-effect, and that the defendant go hence without day, and
recover of the plaintiff his cost in' this behalf expended, for which
execution may issue."
Form of a judgment in favor of the defendant, upon the verbal
plea of infancy.—[Verbal plea, means a plea or defence byword
of mouth, and not in writing drawn up in form.]—"At my own
house, &c. (as before) the parties being present, the warrant and
note being read and heard by the defendant, he says that he
made and executed the note so read to him, but that the same
was made by him when he was an infant, under the age of twen-
ty-one years, and therefore he ought not to pay the same; and
the proof on both sides being heard and fully understood, it is
therefore considered by me, that the note aforesaid was made
and executed when the defendant was an infant, under the age
of twenty-one years, and that he has not affirmed the same since
his arrival at full age; and it is further considered, that the de-
fendant go hence without day, and recover against the plaintiff
his cost in this behalf accrued, for which an execution may is-
sue," &c.
Form of a judgment in favor of the plaintiff where the defendant
relics upon his infancy in. defence.—[Upon an affirmance.]—"Afe
my house, &c. the parties being present, the warrant and note
under seal both being read and heard by the defendant,hesays
that he made and executed the said note read to him,but that it was
36
CIVIL DIVISION.
done when he was an infant, under the age of twenty-one years,
and therefore he says he ought not to pay the same; and the prooi
on both sides being heard and fully understood, it is considered
by me, that the defendant did make and execute the said note
when he was infant, under the age of twenty-one years, but
that he has affirmed the same since he has arrived at full age.
by promising to pay the same to the said plaintiff, [either as
payee or assignee, as the case may be,] and therefore, it is fur-
ther considered by me, that the plaintiff recover of the said de-
fendant the sum of for principal and interest,
and the sum of for his cost in this behalf accrued, for
which an execution may issue," &c.
It is important that each judgment should contain the grounds
(as in the above forms) upon which it is rendered, so that any
one may see judicially, whether the case went off on its merits,
or on some ground of technical formality. If the plaintiff be
non suited, he may institute his "suit again, without regard to the
former proceedings, (as in the case of failure to prove an as-
signment, &c.) but where the suit has been tried on itsggnerits,
and the judgment shall be for the defendant, the judgment is
to be held as final, unless it be taken by appeal or certiorari to
a superior tribunal, and there reversed. The plaintiff cannot
go and begin again before some other justice, as though no such
trial had taken place; and should such suit be a second time
commenced, the defendant may show the former trial in bar, by
producing the justice of the peace as a witness, and his proceed-
ings in the former suit, or by a deposition of such justice, with a
sworn copy of the record of the former suit attached thereto,
and if from the judgment it seems to have been tried on the
merits, the judgment in the case on trial must be for the de-
fendant, Estell vs. Taul, 2 Yerg. Rep. 467.
We will now enter a field of jurisdiction of much greater ex-
tent than the one given by the increased powers conferred by
the statute of 1809, leaving the doctrine of negotiability until
we come to speak of bills of exchange, promissory notes, <fcc.
in their proper place. Under these heads, instruments of a ne-
gotiable character, of all amounts, are alike the subjects of con-
1807 7 l ^deration. A justice of the peace, out of court, has
jurisdiction over "all debts and demands of fifty dol-
actions or DEBT.
37
dollars, and under, where the balance is due on any contract,
specialty, note, or agreement for goods, wares and merchandize
sold and delivered, or for work and labor done, or for \
1,1111.- 1817, c. 86, §2.
specific articles, whether due by obligation, note or
assumpsit;" and all these cases shall be tried and determined
upon principles of equity, and right and justice done between
the parties, upon the merits of the case, without regard to the
strict rules of law; and they are authorised to hear "parol or
other legal evidence to impeach the consideration or
validity of any bond or note, as well those with as
without seal." It will be observed that these equitable trials are
to be so conducted as that no illegal proof is to be admitted;
that is, the parties themselves are not to be sworn (as
. 1756 o.4.
is too often the custom) unless where the same is al-
lowed under the book debt law* of 1756, and 1819. 1819>c- 23» §2'
All that the act of 1817 ever intended, was to au- 1817, c.sg.
thorize a justice to hear any competent proof, such as he might
hear in any other cause; but it is illegal to hear the parties, ex-
cept as before stated. And under the book debt law, neither
plaintiff or defendant is to be heard on oath as a witness in his
own cause, until he shall answer on his voir dire, that the articles
he proposes to prove by his own oath, is a book account, for
goods, wares and merchandize sold and delivered, or for work and
labor done for the opposite party, and that there is no witness in
existence, to his knowledge, by whom he can prove the same.—
They are then to be interrogated as to each item in their ac-
counts; and if there are any items therein which can be proved
by any other person, the party is not to be heard as to such item
*The term book account, must be understood as meaning any mode of
perpetuating the items of work and labor done, or for goods, wares and
merchandize sold and delivered, other than specialty, note or agreement
signed by the parties. It does not mean that the items must be written
down in a book, or even on paper ; for if that were the case, the illiterate
would be in a bad situation indeed. 1 recollect when I was at the bar, a
poor old blacksmith, who was illiterate, had been sued, and desired to
make an offset ; his account was kept upon a four-square stick, and the
learned judge, upon my argument, admitted it with the entire approbation
of the profession present.
38
CIVIL DIVISION.
or items. Jt will also be observed, that the book debt oath on-
Ij extends to goods, wares and merchandize soldand delivered,
or for work and labor done and performed, and not for money
lent or advanced, or laid out and expended, or for money had
and received, or for any other matter not coming within the ex-
ceptions made by the book debt law. But we will treat of this
more fully in its proper place. Some very intelligent justices of
the peace, in construing the act of 1817, have thought themselves
authorized to swear and hear both parties, in all cases, in place
of bill and answer in equity. This is all wrong; the Legisla-
ture in passing the act, never intended to permit any such pro-
cedure.
We will now proceed to give the form of a warrant, under
each class of cases, and of a return of the officer, and the judg-
ment thereon for the plaintiff, and also of a judgment for the
defendant, a stay of execution, and an appeal prayed and grant-
ed, and bond for an appeal, &c. As has been before observed,
the matters arising under the enacting provisions ot the acts of
1801, chapter 7, and 1809, chapter 54, principally distribute
themselves into actions of debt, assumpsit and account.
Form of a warrrant on a note under seal for less than fifty dollars, by
the payee against the maker of the note.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return.
You are hereby commanded to summon A B to appear be-
fore me, or some other justice of the peace for said county, to
answer the complaint of C D, of a plea of debt under fifty dol-
lars, due by note under seal executed by the said A B to the said
C D. Herein fail not. Given under my hand and seal this
day of A. D. 18 ." [To be signed, &c.]
Officer's return thereon.—"Came to hand the day of
18 and executed on the day of 18 for trial, at the
house of G II, Esquire, on the day of 18 ."
Form of a judgment thereon for the plaintiff.—"At my own house
in the county of on the day of A. D. 18 the par-
ties being present, the warrant and note under seal being read
to the defendant, he says, the said note under seal is his act and
tleed; and the testimony of both parties being heard and under-
stood, it is therefore by me considered, that the plaintiff recover
actions op debt.
39
of the defendant the sum of dollars, for debt and interest, and
the further sum of for cost in this behalf accrued, for which
execution may issue. From which judgment the defendant prays
an appeal to the next county court (or circuit court, as the case
may be,) to be holden for the county of at the court house in
the town of on the day of A. D. 18 next, and ten-
ders here L M as his security for said appeal, who is deemed
good and sufficient by me for that purpose. And he also ten-
ders the following bond for the effectual prosecution of the said
appeal," &c.
Form of the appeal bond.—"Know all men, that we, A B and
L M, are held and firmly bound unto C D, his heirs, executors,
administrators and assigns, in the sum of dollars well and*
truly to be paid to the said C D; but to be void if the said A
B shall prosecute with effect an appeal by him taken this day
from a judgment rendered against him for the sum of
principal and interest, and the further sum of for costs
accrued thereon, in favor of the said C D before G II, one of
the justices of the peace for said county, to the next county
court, (or circuit court, as the case may be, as in the prayer for
the appeal.) But if the said A B fail therein, then to pay the
said judgment, with such damages and cost as shall be adjudged
against him in said court. Given under our hands and seals this
day of 18 A B, [l.s.]
Test, G II, Justice of the Peace. L M, [l.s.]
Which said bond being received, the appeal is granted
him accordingly. G H, Justice of the PeaceF
Form of a judgment for the defendant upon the foregoing war
rant and note, upon the verbal plea of payment.—"At my own house
in the county of aforesaid, on the day of A. D. 18
the parties being present, and the warrant and the note under
seal being read to the said defendant, he says that the said note
is his act and deed, but that he has well and truly paid the same,
and the testimony on both sides being heard and fully understood,
it is considered by me that the defendant has paid and satisfied
the said plaintiff the full amount of principal and interest secu-
red by said note, and that the defendant go hence without day,
and recover of the plaintiff the cost in this behalf accrued, for
which execution may issue," &c.
40
CIVIL DIVISION.
The form of a judgment for the defendant upon such a war-
rant and note under seal as above, by reason of setoff by the de-
fendant of two small notes of the plaintiff, and an account be-
tween the plaintiff and defendant, all of which being added to-
gether, amount to ten dollars more than the plaintiff's demand,
is the same as in the last form, until yon come to the word deed;
1756, c. 4,5 7. then say, "but the defendant says that he has here
1815, c- 53. £WO promissory notes made by the said plaintiff, to
the said defendant, [or assigned to him, as the case may be,] and
an open account which the plaintiff owes the said defendant for
goods, wares and merchandise sold and delivered, all of which be-
ing added together, amount to the sum of forty-nine dollars, thirty-
nine of which he is willing to set off, and prays to set off the same
against the demand of the plaintiff, and he also prays judgment for
the balance; and the said plaintiff says he cannot gainsay the sev-
oral demands of the defendant: it is therefore considered by me,
that thirty-nine dollars of the defendant's several demands be set
off against the plaintiff's demand of principal and interest which
makes that sum, and that the said defendant recover of the said
plaintiff the sum of ten dollars, the balance of his demands, and
all cost in this behalf accrued, for which execution may issue."
In courts of record a defendant must plead his setoff in form,
or give notice of the matfer intended to be setoff to the plaintiff;
but it is otherwise before a justice of the peace. There, there are
no pleadings in writing, or notice of setoff, but the defendant is at
liberty to present his matter of setoff, and avail himself of the
benefits thereof by proof on the trial of the cause. The plain-
tiff may pray for and obtain the benefits of a stay of execution
upon such a judgment as the last one, as though he had been
originally the defendant, after the form following:
"Whereupon the said plaintiff prays the benefit of a stay of
execution upon said judgment, which is allowed him upon giv-
ing R S security for the same; whereupon R S comes forward
and enters into the following acknowledgment of stay of exe-
cution, viz. 41, R S, a citizen of the county aforesaid, hereby
acknowledge and agree, that if the execution of the above judg-
ment shall be stayed and delayed for the term of thirty days
from this date, that when the said execution shall issue thereaf-
ter, the same may issue jointly against the said A B and myself,
ACTIONS OF DEBT.
41
and against our goods and chattels, in as full and ample a manner
as though such judgment was jointly rendered against us origin-
ally. Given under my hand and seal this day of
A. D. 18 R S, [l.S.]
Test, G II, Justice of the Peace."
Form of a warrant upon an order for money to a third person, which
has been protested by the person on whom drawn.
"State of Tennessee,) ss.—To any lawful office!4 to execute and
county ,3 return:
You ate hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of C D, of a plea of debt due by an order for mo-
nc-y, drawn by the said A B in favor of the said C D upon E F,
and by the said E F protested and refused by his certain endorse-
ment on the back of the same; Herein fail not; Given under
my hand and seal this day of Ai D* 18 ." [To be
signed, &c.]
Bv the act of 17G2, it is enacted, that when any
, „ , .... . , , 1762. c. 9, {4.
person or persons shall, by order in writing,signed by
his or her proper hand, direct the payment of any sum or sums
of money in the hands or possession of any person or persons,
to the bearer, or to any other person or persons whatever,
the money therein specified shall, by virtue thereof, be due and
payable to such person or persons, to whom the same is drawn
payable, and may be put in suit against the person or persons
\Gio shall draw the same, or against the person or persons on
whom drawn, after acceptance by him or them.—
But no suit shall be maintained against the drawer of
such order, for the money therein mentioned, until the same
shall have been presented to the drawee and protested by him in
writing on the back of the same, or protested for non-acceptance,
(as by a Notary Public) and notice given thereof to the drawer,
&e. It will be seen from this statute, that on the trial, the plains
tifTmust prove against the drawer, that the defendant made the
order, as by proving his hand-writing, and that he presented the
order in a reasonable time to the drawee, or person on whom
drawn, for acceptance, and that the same has been refused ac-'
reptance, (or protested for non-acceptance, as the case may be,)
and that he had given the drawer notice thereof in due lime,
F
42
CIVIL DIVISION.
1762 c 9 5 an<^ ^ make such proof, he cannot
maintain his action against the drawer, but must be
non-suited as the act requires. These orders in writing for mo-
ney are in effect, though not in form, in many respects like bills
of exchange, and the same rules of evidence as to vigilance ought
to be made, though the common practice is otherwise in both
cases. This will be treated of more fully when we come to
speak of the doctrine of negotiability. The form of a judg-
ment upon an order for money will, in substance, be the same
as in the case of the payee of a note under seal against the ma-
ker, and the subsequent steps will also be similar.
Form of a warrant on an open account, for work and labor done, and
medicine furnished by a physician.
"State of Tennessee,) ss.—To any lawful officer to execute and
county, } return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to an-
swer the complaint of C D, in a plea of assumpsit, due by open
account, under fifty dollars, for work and labor done and per-
formed as a physician, and for medicine furnished by the said C
D for the said A B, and at his special instance and request.—
Herein fail not. Given under my hand and seal this day
of A. D. 18 [To be signed, &c.]
Form of a warrant for goods, wares and merchandize, sold and deliv-
ered.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,^ return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of C D in a plea of assumpsit, due by open ae-
count, under fifty dollars, for goods, wares and merchandize, sold
and delivered to the said A B, and at his special instance and re-
quest, by the said C D. Herein fail not. Given under my hand
and seal, this day of 18 ." [To be signed, &c.]
The last two forms may by varied to suit any species of work
and labor done and performed, or for goods, wares and merchan-
dize, sold and delivered, as for a blacksmith's account, for in-
stance, which is as follows:
ACTIONS OP DEBT.
"State of Tennessee.) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear be-
fore me, or some other justice of the peace for said county, to
answer the complaint of C D, of a plea of assumpsit, due by
open accoftnt, under fifty dollars, for work and labor done and
performed for the said A B, by the said C D, as a blacksmith,
and at his special instance and request. Herein fail not. Given
under my hand and seal," <fcc.
If the action is instituted for live stock, as horses, hogs, cattle,
&c.—notwithstanding these would all fall under the general
name of goods and chattels, yet it is best that the warrant should
be more special—make the warrant as follows:
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of C D, of a plea of assumpsit, due by open ac-
count, under fifty dollars, for cattle and hogs sold and delivered
to the said A B, and at his special instance and request, by the
said C D. Herein fail not. Given under my hand and seal," &c.
If the action be for corn, wheat, rye, oats, hay, fodder, &c. say
in your warrant, "for corn," or whatever else the account is for;
or if made up of a number of different species of property, as
hogs, rye, cotton and tobacco, say "for hogs, rye, cotton and to-
bacco," as the facts of the case may be.
Most of the cases falling under the classes of goods, wares and
merchandize sold and delivered, or for work and labor done and
performed, will, at the trial, depend on the book and oath of the
plaintiff or defendant, under the book-debt law. It therefore
becomes necessary that we should point out minutely the mode
of proceeding under said law.
In all cases for goods, wares and merchandize sold and deliv-
ered, or for work or labor done and performed, the plaintiff
shall file his account with his warrant, and on the trial, before
he is sworn in chief to give evidence in the cause, he shall de-
clare on his corporal oath, (or solemn affirmation, if a quaker,)
1st, that the matter in dispute is a book account; 2d, that
he hath no means to prove the delivery of the articles he shall
u
CIVIL DIVISION.
1756 c 4 2 ^len ProPose *° Prove by bis own oath, or any of
them, or the doing or performing of the work and la-
bor, but by his book; 3d, that said book doth contain a true ac-
count of all the dealings, (or the last settlement of accounts be-
tweenthem;) 4th, that the articles therein contained, and by
him so intended to be proved, were bona fide delivered, or the
work and labor done and performed within two years immedi-
ately preceding the day of issuing the warrant; 5th, that he hath
given the defendant all just credits. Then such book and oath
(or affirmation) shall be admitted and received as good "evidence,
&c. The proper mode of practice under this statute, is to swear
the party to answer questions after the following form:
^You solemnly swear [or affirm, as the case maybe,] that you
will make full, true and perfect answers to all such questions as
shall be asked you in relation to the book [or copy of the ac-
count from the book, as the case may be,] you now produce as
evidence in the cause wherein you are plaintiff, and A B is de-
fendant. So help you God."
First, "is the matter in dispute on your side a book account?"
that is, that it is no specialty, note or agreement in writing,
signed by the defendant. Second, "is your account for goods,
wares and merchandize, sold and delivered, or for work and la.
bor done ?" Third, "have you any other means to prove the de-
livery of the articles, or the performance of the work and labor, or
any of them, that you now propose to prove by your own oath and
your book, or a copy of it, than by your own oath and book?" This
interrogatory means more than that the party has no witness pre-
sent by whom he can prove the items of his account, or any of
them; for if there is a witness within the party's reach, (and all
witnesses within the State are within the party's reach) who
can prove the same, he must produce such witness, and cannot
swear himself to the account. But if there are witnesses cog-
nizant of the facts, yet if they are gone to parts unknown, he
hath lost the means of procuring their testimony. Or if the
witnesses have removed beyond the limits of the State, he is
then beyond the legal means of the party while the cause is before
a justice of the peace; for a justice cannot issue a commission
to take a deposition beyond the limits of the State. The ques-
tion resolves itself into this, that if there is a wi tness in the State
ACTIONS OP DEBT.
45
who can prove any of the items of the account, the same cannot
be proved by the party's own oath. But where the cause is ta*
ken by an appeal, or writ of certiorari, to the county or circuit
court, a commission from either may be sent to any point on the
continent, and a deposition taken thereby. Fourth, "does the
book, or the copy thereof that you now present, contain a true
account of the dealings, or the last settlement of accounts be-
tween you and the defendant?'' Fifth, "have the articles in
said account stated, been bona fide delivered (or the work and
labor therein contained been bona Jide performed, as the case
may be.) within two years immediately before the commence-,
ment of the suit?" Sixth, "have you given the adverse party all
just credits?" If these questions be all answered in a proper
manner, then the plaintiff (or defendant, as the case may be,)
ought to be sworn in chief, as another witness in the cause.—
Thus, if on the gospels: "You solemnly swear, that the testimony
you shall give on this trial before me, wherein you are plaintiff,
[or defendant, as the case may be,] and A B is defendant, [or
plaintilf, as the case may be,] shall be the truth, the whole truth,
and nothing but the truth. So help you God." If with an up-
lifted hand, thus: "You appeal to God, as the witness of truth,
and the punishcr of falsehood, as you shall answer for the same
at the great day of judgment, when the secrets of all hearts shall
be made known, that the testimony you shall give on this trial
before me, wherein you are plaintilf, and A B is defendant, shall
be the truth, the whole truth, and nothing but the truth. So
help you God."
A defendant may prove his account of set-off by 1819 c.25,^2*
his own oath, in the same manner that a plaintiff can 1815, c> 53-
do so. Either party may contest the oath and book account by
other legal evidence, as by the introduction of other witnesses.
The book-debt law only makes a party competent to swear in his
own cause, leaving his credibility as it would have been if he had
been introduced as a witness in another cause.
*As to the old practice under the act of 1756, chapter 4, see the case of
Hell and Homageaux, Martin's N. Carolina Rep. 44. See also Slade's
case, 4 Rep. 95, where the maxim is laid down, Jurare in propria causa
est sapemnmero hoc secalo, precipitium diaboli.
46
CIVIL DIVISION.
Where the plaintiff is an executor or administrator, he ihay
give the testator's or intestate's book in evidence to prove the
delivery of the articles of goods, wares and merchandize, or the
work and labor done and performed, as therein contained, pro-
vided he will also swear [or affirm, as the case may be,] "that he
1756 4 2 ver^ty believes that the account, as there charged,is
just and true, and that there are no witnesses to his
knowledge capable of proving the same, and that he found the
book so Btated, and doth not know of any other or further cred-
it to be given than what is there mentioned." Then, and in
that case, such book and oath shall be admitted and received as
evidence for any articles delivered, or work performed, within
the time prescribed by the act. The defendant is at liberty to
contest this evidence by other legal proof; and where the de-
fendant is an executor or administrator, he may give in evidence
by way of set-off against the plaintiff's book, where he is an ex-
ecutor or administrator, the book of his testator, or intestate, for
such articles, or work and labor, as shall be proved in the manner
aforesaid. Also, a defendant, who is an executor or administra-
tor, may defend himself in the manner aforesaid, against the
action of any person; but where he has presented his testator's
or intestate's book, and has made the oath as prescribed for
plaintiff executors or administrators, such proof may be contest-
ed by other legal evidence.
A copy from the book of accounts, proved in the manner be-
fore pointed out, shall in all cases be as good and effectual as if
1756 4 Sa^ ^ook hacl been produced, unless the opposite par-
ty shall give notice, requiring the original book to be
produced on the trial. This notice must be given such a length
of time before the trial as will enable the party notified, to pro-
cure and produce the same. In such case no copy of the account
will be admissible, unless the party can show, that since the ta-
king of the copy, the original has been lost or destroyed by some
accident. The book-debt oath only extends to goods, wares and
merchandize sold and delivered, or for work and labor done and
performed; but not to mere matters of contract, as for money
lent and advanced, laid out and expended, or had and received.
And the parties can never be witnesses in their own causes, ex-
cept under the book-debt law, where the book-debt oath is ad-
ACTIONS OF DEBT.
47
ministered to them. The mode pretty generally pursued, of
swearing either party that their account is just and true, or the
like, is wholly unwarranted by law. It is an illegal mode of
proceeding, gotten up no one knows how. All matters of con-
tract must be proved by disinterested testimony. It may be well
to note, however, that the words, "goods, wares," &c. include any
description of personal property, as horses, hogs, corn, ploughs,
hoes, axes, &c.
Form of a warrant for money lent and advanced.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of C D, of a plea of assumpsit under fifty dollars,
due by open account, for money lent and advanced by the said
C D to the said A B, and at his special instance and request-—•
Herein fail not. Given under my hand and seal this day
of ," &c. [To be signed, &c.]
Form of a 7carrant for money laid out and expended for the defend-
ant's use.
"State ot Tennessee,) ss.—To any lawful officer to execute and
county,) return.
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of C D, of a plea of assumpsit under fifty dol-
lars, due by open account, for money laid out and expended by
the said C D for the said A B, and at his special instance and
request. Herein fail not. Given under my hand and seal this
day of "&c. [To be signed, &c.J
Form of a warrant for money had and received by the defendant to
the plaintiff's use.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to an-
swrer the complaint of C D, of a plea of assumpsit under fifty dol-
lars, due by open account, for money had and received by the
said A B, for the use of the said C D. Herein fail not. Given
48
CIVIL DIVISION.
under my hand and seal this day of A. D. 18 [To
be signed, &c;]
The three forms of action pointed out by the last thfee War-
rants, are of frequent occurrence, and of extensive utility. The
first is for the recovery of money lent, where no memorandum in
writing is signed by the borrower. The second is for the recov-
ery of money laid out and expended for the defendant, at his ac-
tual or implied request. An implied request is, where the plain-
tiff has been employed as an agent, or the like, to perform a cer-
tain duty of such a nature as would necessarily require the ex-
penditure of money, and the plaintiff did so expend money, and
the defendant had not furnished the plaintiff with any money,
or not enough for the purpose, or the like. In such cases, the
law raises a promise^ to pay. The third form of action is of
more general use than either of the former, as it is an action
that lies to recover money that belongs to the plaintiff, which
has by any means gotten into the hands of the defendant, ex-
cept by loan, or Avliere any thing else gets into a man's hands,
and he sells it for money. For instance, a man borrows of you
a yoke of oxen, and then sells them for the sum of forty-five dol-
lars, and receives the money; the moment he receives the mo-
Boyd vs. i o- neJ? law implies that he had done so at your in-
faDou°°ki83 stance> and f°r your use and benefit. Or suppose a
2 Bur. loio. man to find any of your property, or to have gotten
5 Bur! 2589! the same into his possession by an act of trespass,
2 Dallas, 242. an(j se]j an(j conVert the same into money, the
moment he receives the money the law presumes it to be receiv-
ed for your use and benefit. Or where your debtor shall send
money to you by a third person, who shall fail or refuse to pay it
over to you, or in any such like case, you may maintain the ac-
tion of money had and received, against the person who has thus
received it. The law implies a promise on his part to pay the
money to you. But these do not fall under the "book debt" law,
and therefore they must be supported and defended by proof
from disinterested witnesses.
The following is the form of a warrant upon a note under
seal, for specific articles, viz. payable in hogs:
ACTIONS OP DEBT.
49
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to an-
swcr the complaint of C D, of a plea of covenant broken, un-
der fifty dollars, due by note under seal, payable in hogs.—
Herein fail not; Given under my hand and seal this day
of A. D. 18 [To be signed, &c.]
All notes under seal, for specific articles, are in law covenants,
as there is an alternative or condition in them in favor of the
defendant. Actions on such notes, our supreme court has said,
are not cognizable before a justice of the peace where the amount
exceeds fifty dollars; but as the value of these specific articles
is a matter of fact, to be proved by witnesses who may differ as
to the value they might place upon them, and as the amount
when ascertained would sound in damages, a jury ought to try
the cause in the first instance; The conslitution, which says,
that "the right of trial by jury shall be preserved in-
Arnold rs Km-
violate," never intended to give a justice of the peace Reep/i34Peck"
jurisdiction over such a case, when the value of the vg*
•' ' Gibson,2 Ten.
things exceed twenty dollars; but the supreme court Rep.i35
has, in effect, said that a justice of the peace may entertain ju-
risdiction over all such cases, where the value of them does not
exceed fifty dollars, and their judgment must be obeyed.
Form of the judgment for the plaintiff on the above case.—"At my
own house,&c. (as before) the parties appearing, the warrant
and note under seal, payable in hogs, being read to and heard by
the defendant, he says, the note is his act and deed, but that the
plaintiff ought not to recover against him in this action, be-
cause, lie says,'there is no place of payment mentioned in the
note, and that the plaintiff did not demand the hogs men-
tioned in said note, at his, the defendant's place of residence;
nor did the plaintiff give the defendant ten days' notice, before
the institution of this suit, of the place where, and
1807 c. 95.
the time when, said plaintiff desired said hogs to be
paid and delivered, at a point not more remote from the resi-
dence of the said defendant than the residence of the said plain-
tiff is from the residence of said defendant; and that the said
defendant resides in the same county in which the contract was
G
50
CIVIL DIVISION.
made; and he therefore prays, that the plaintiff may be noh-
suited: and the testimony on both sides being heard and fully
understood, it is found by me, that the notice required by act
of Assembly was given by the plaintiff to the defendant, and that
forty-five dollars, payable in hogs, were, at the date when the
note aforesaid fell due, of the value of thirty-five dollars: It is
therefore considered by me, that the plaintiff recover of the said
defendant the said sum of thirty-five dollars, and all cost in this
behalf accrued, for which an execution may issue," &c.
Form of a judgment on a note for specific, articles, under seal, in
favor of the defendant, for want of demand, or notice.—"At my own
house,&c. the parties peing present, and the warrant and note'
under seal for forty five dollars in hogs, being read to and heard
by the said defendant, he says, that the note aforesaid is his act
and deed, but that the plaintiff ought not to recover against him
in this action, because he says, there is no place of payment
mentioned in said note, and that the plaintiff did not demand
the hogs mentioned in said note, at his, the said defendant's
usual place of residence; nor did the plaintiff give the defen-
dant ten days' notice before the institution of this suit, of the
place where, and the time when, said plaintiff desired said
hogs to be paid and delivered, at a point not more remote
from the residence of the said defendant, than the residence of
the said plaintiff is from the residence of the said defendant,
and that the said defendant resides in the same county in
which the contract was made; and therefore prays that the
plaintiff may be non-suited. And the testimony on both sides
being heard and fully understood, it is found by me, that no;
demand was made, or notice given, as required by the act
of Assembly: It is therefore considered by me, that the plaintiff
be non-suited, and that the defendant go hence without day,
and recover of the plaintiff his cost in this behalf accrued, for
which an execution may issue," &c,
The act of Assembly upon which the above and foregoing
forms are predicated, is in the words following: "In
1807. c. 95.
all contracts hereafter to be made for the payment
or delivery of property, if the time and place, or either, be not
ascertained in the contract, it shall be the duty of the payee to
give the payor ten days' notice of the time, or place, or both, as
ACTIONS OP DEBT.
51
the case may be, required for the payment or delivery of such
property; which place shall not be at a greater distance from
the residence of the payor than that of the payee, and which
shall be in the same county; and if no such notice be given, the
property shall be payable at the place of residence of the pay-
or; and no action shall be maintained on any such contract, un-
til such notice be given, or demand made, at the usual residence
of the payor: Provided, such payor shall reside in the county
where such contract shall have been made."
A good deal of difficulty has occurred upon two or three points
under the statute, that is to say, where a payee might notify a
payor to deliver the property specified in the contract, and in
case of a demand at the residence of the payor, whether such
demand should be made ten days before the day of bringing the
suit. It is a safe rule always to suppose the Legislature to
have meant what they have said in a statute, (unless one part of
the statute shall conflict with another part of it,) and to suppose
them to have said all they did mean.
The first difficulty will be removed upon a little reflection.—
The payee is not to notify the payor to pay or deliver the prop-
erty at a place which is a greater distance from the residence of
the payor than that of the payee. Some have supposed this to
mean the half-way ground between them. Others, that it might
be a place any where in the county not more than half as far
from the residence of the payor as the distance the payee resi-
ded from him. Both of these were wrong in their construction
of the statute; because the Legislature neither said, nor intend-
ed to say, any such thing. But the statute plainly says, that the
payee shall not notify the payor to deliver the property at any
point more remote from him, the payor, than the place of resi-
dence of the payee is from him, the payor. But to make it still
more plain, if possible, the payee may require the payor to de-
liver the property at his own house, if he lives in the same coun-
ty with the payor, and at the same place he resided at when the
contract was made; or at any point in said county not further
off from the payor.
As to the second point, it is equally clear that not a day need
elapse between the demand at the usual residence of the pay-
or, if <y^f^J^isal to pay or deliver the property, and
52
CIVIL DIVISION.
the institution of the suit. For if "no such notice be given, the
property shall be payable at the place of residence of the pay-
or;" therefore, a demand is necessary, because it must be presu-
mod under the statute, that the payor had the property ready to
pay on the day the same fell due, and that he continued to keep
it for the benefit of the payee; and if he chose not to do so, he
might notify the payee to come forward in a reasonable time
and take it away, or inform him when and where he should de-
liver the same in said county. But if the payee should refuse to
come to the payor's residence to receive the property, or to de-
signate a time and p*lace for delivery, the payor ought not to
keep the property any longer in readiness for him; for in that
case I would think it right, just and equitable, to require the
payee to give the ten day's notice.
Another question of some moment frequently occurs, where
the time and place are both specified in the contract; that is to
say, what must the payor do with the property when he takes
it at the time, and to the place specified in the contract, and
the payee, nor any person for him, attends to receive the pro-
perty? I answer, if the property be of such a nature as may be
stowed away, and there is a place appointed where it may be
done with ordinary labor, it is the duty of the payor thus to put
it away. But if the property be horses, cattle, hogs, sheep, or
the like, which it would be an expense to the payor to keep, and
be liable to perish by death, and no one comes to receive them
on behalf of the payee, during the day on which the contract
requires a delivery, the payor may turn them out at such place
on the next day. This would be doing all a prudent man could
or ought to be required to do. The payor ought to have his
property minutely examined by some two or three intelligent,
disinterested persons, to the end that they may see that the pro-
perty is of the kind required by the contract, and of a value suf-
ficient to discharge the demand.
In this action for specific articles, if the judgment of the justice
of the peace be rendered on the merits, it is final between the
parties, and puts an end to their litigation upon that subject, un-
less removed by appeal or certiorari to a higher court. Hence
the necessity of the judgment being full and formal. But all
judgments before a justice of the peace are in effect verdicts, as
ACTIONS OF DEBT.
53
well as judgments, and therefore ought to contain a brief state-
ment of the grounds upon which thej are rendered, so that it
may judicially appear from the records of the justice, that the
cause was tried on its merits. And in no action is it more ne-
ccssary than in actions upon property contracts. For in these
actions, if the plaintifffail to prove demand, or notice, on the trial,
judgment will be rendered against him as upon a non suit, in a
court of record. Such judgment not being on the merits, is not
final, but the plaintiff is at liberty to make the demand, or to
give the notice required by the act of Assembly, and to com-
mence a new suit, and go on to judgment, as though no former
trial had taken place.
The notice required by the act need not be in writing; it is
good by parol, or word of mouth: but it would be more prudent
to serve a notice in writing on the the payor, by getting some
one to deliver him a copy of the notice, and to endorse on the
back of the original, the day on which he delivered the copy,
thus: ''Delivered a copy of the within to A B, on the day
of 18 C D."
If the instrument of writing is without seal, whereby a person
promises to pay or deliver specific articles, it is neither a prom-
issory note, or a covenant, but is 'a note in writing for specific
artichs, not under seal, and must be so^ described in the warrant
and judgment. The form will be precisely the same in every
respect, with the warrant and judgment on a note or covenant
under seal, except the words in italics, above, must be inserted in
the place of "a note under seal for," &c.
Form of a 'warrant by an assignee against the maker of a note or cov-
cnant for property, under seal.*
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear be-
fore me, or some other justice of the peace for said county, to
answer the •omplaint of E F, assignee of C D, of a plea of
covenant broken, under fifty dollars, due by note or covenant
•By the act of 1801, chapter 6, the endorsee or assignee of any bond,
bill, or note for specific articles, may maintain a suit in his own name, &c.
54
CIVIL DIVISION.
under seal, executed by said A B to the said C D, for twenty
head of sheep, and by him assigned to the said E F. Herein
fail not. Given under my hand and seal this day of
A. D. 18 ." [To be signed, &c.]
The judgment will substantially be the same as between pay*
ee and payor, and need not be here inserted.
Form of a warrant on a simple verbal contract for specific articles, to
wit, thirty dollars in young cattle.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to an-
swer the complaint of C D, upon a breach of contract under
fifty dollars, for the non-payment of thirty dollars in young cat-
tie. Herein fail not. Given under my hand and seal this
day of A. D. 18 ." [To be signed, &c.]
Form of a warrant on a verbal or simple contract, for so much in young
stock hogs, as the clearing of five acres of land ready for the plough
should be worth.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,} return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for'said county, to answer
the complaint of C D, upon a breach of contract under fifty dol-
lars, for the non-delivery of so many young stock hogs as the
clearing of five acres of land ready for the plough, by the said
C D for the said A B, and at his special instance and request,
shall be worth; and the said C D avers that the clearing of said
five acres is reasonably worth forty-five dollars. Herein fail not.
Given under my hand and seal this day of 18 /'
[To be signed, &c.]
Form of the judgment upon the last warrant.—"At my own house,
&c. the parties both being present, and the warrant being read
to the defendant, he says, that he did not assume *ipon himself
as in the warrant is charged; and the evidence on both sides
being heard and fully understood, it is found by me, that the
plaintiff did clear five acres of land ready for the plough for the
defendant, and at his special instance and request, and that the
clearing of the same is worth forty-five dollars in young stock
ACTIONS OP DEBT.
hogs, and that forty-five dollars in stock hogs were worth thirty
three and one-third dollars in cash, at the time of making a de-
mand of the same, and that the plaintiff did make stich a de-
mand of the said hogs as is required by the act of Assembly: It
is therefore considered by me, that the plaintiff recover of the
said defendant the sum of thirty-three and one-third dollars, and
his cost in this behalf accrued, for which an execution may is-
sue. Given under my hand and seal this day of 18 ."
[To be signed, &c.J
The last form of a warrant and judgment wrill answer in all
cases of demand for work and labor done and performed, paya-
able in property, by making small variations to suit the facts.
The foregoing will be a sufficient directory in relation to the
mode of proceeding upon property contracts, or for the non-pay-
incut or non-delivery of specific articles.
W e will now notice the doctrine, and point out the mode of
proceeding on bills of exchange, promissory notes, notes, and
bonds with seal, for the payment, or the securing of the payment,
of any sum or sums of money, as between endorsee and drawer,
endorsee and drawee and drawer, payee and drawer, payee and
acceptor, endorsee and endorser, assignee and assignor, payee
and maker, &c.
That these terms may be the better understood, wre will premise,
that a bill of exchange is a security originally invented among
merchants in different countries, for the more easy remittance of
money from one man to another, which has since extended itself
into almost all pecuniary transactions. It is an open letter of
request, from one man to another, desiring him to pay a sum of
money named therein, to a third person, on hi§ account, by which
means a man at the most distant part of the world may have
money remitted to him from any trading country. In common
speech, such bill is called a draft, but a bill of exchange is the
more legal, as well as the more mercantile expression. The
person, however, who writes the letter is called in law the draw*
cr; and he to whom it is written the drawee; and the third per-
son, or negotiator, to whom it is payable, (whether specially na-
med, or drawn payable to bearer generally,) is called the payee.
No precise form is requisite for a bill of exchange. It is
enough, if a request in writing be made by one man upon ano-
56
CIVIL DIVISION;
ther, to pay a third person a certain sum of money at sight, of
at so many days after sight, or after date; Bills or notes may be
made payable on demand, or so many days after date. If made
payable a certain number of days after date, the day of the
date is not included in the computation: therefore, a bill dated
on the first day of May, at ten days after date, becomes due oil
the day of grace after the I l'th. In this country, three days of
grace are allowed. Therefore, a bill of the nature of the one
just described, would be payable on the 13th. But if the last of
the three days happen to fall on Sunday, the bill becomes due
and is payable on Saturday; but in all other cases, a presentment
of the bill or note before the third day of grace, is-a mere nulli-
ty. Days of grace are allowed on bills or notes made payable
at sight or on demand. Max. on Bills, 80,81. Bay. "23. Chitty
on Bills, 338—9. Kyd, 65 7. 3 Bos. and Pul. 173. Ld. Ray. 1076.
It is the better opinion that the party bound to pay, shall have
the whole of the last day to pay an inland bill of exchange or
promissory note. 1 Rol. Ab. 189. 1 Saund. 287. 4 Term Rep.
173. Max. 158. Broddie vs. Searcy, Peck's Rep. 183. Love vs.
Nelson, M. and Yerg. Rep. 237.
The time to demand payment of a negotiable instrument is on
the third day of grace, exclusive of the day appointed for pay-
ment. A bill, note, or bond for money, does not legally fall
due before the third day of grace, and a suit is not maintaina-
ble upon such instrument, commenced before the third day of
grace. Mar. and Yerger's Rep. 337.
Negotiable instrument, is a commercial term, and means any
bill of exchange, promissory note, bill single, or bond for mo-
ney, settled account signed by the party to be charged there-
by, &c. and is transferable from one person to another, and gives
the endorsee or assignee all the rights and benefits that the
original payee or obligee could have had bv virtue of said instru-
ment; and upon such endorsee or assignee using due diligence
in presenting the same to the drawee, maker, or obligor, or oth-
er person who is first liable to be called upon, and upon a failure
of acceptance, or payment, in giving notice of the non-pay-
ment or non-acceptance to the drawer (or endorser, as the case
may be,) such drawer, or endorser, becomes as accountable upon
such bill, promissory note, bill single, bond, or other instrument
ACTIONS OF DEBT.
57
of writing for the payment of money, to the endorsee, or as-
signee, as though he were originally absolutely bound.
An endorsement is that act by which the holder of a negotiable
instrument transfers or assigns his right to another person.—
Endorsements are of three kinds, viz. in blank, in full, and re-
strictive.
Endorsement in blank, is the most usual form of endorsement. It
is the writing the holder's name on the back of the instrument.—
It mentions no name, and the person to whom it is thus negotia-
ted may write over it an assignment to whatever name he pleases;
and so long as it remains in blank, it makes the instrument pay-
able to the bearer. The endorsement may be filled up at the
trial, if not done before, thus: "Pay the contents [to whomsoever
the then holder may be] to A B." 2 Stra. Rep. 1103. 12 Mod.
214. 1 Salk. 127, 130. 1 Show. 163. Ld. Ray. 443. Com. 311.
Baines' N. 433. Bull. N. P. 275,278. Ld. Ray. 360. Carth. 366.
12 Mod. 213.
Endorsement in full.—In this endorsement the name of the
person it is made payable to is mentioned; and this endorsement
in full may be either general or restrictive. A general en-
dorsement in full is after the following manner: "Pay the con-
tents to A B;" or, as is most usual among uncommercial men,
"I assign the within to A B."
A restrictive assignment is as follows: "Pay the contents to A B
only," or the like, which shows that the assignor intended that
the maker or acceptor should only pay to A B. A restrictive
endorsement precludes the person in whose favor it is made from
making a transfer, so as to give a right of action either against
the person making it, or any of the antecedent parties ; or
where such restriction is expressed upon the instrument, from
receiving a payment to their prejudice. This point was settled
in the case of Archer vs. the Bank of England. •
No particular form is required for an endorsement. The most
usual mode among commercial men is to write the holder's name
on the back, or some other part of the instrument; but any form
which shows that the party designs to part with his right, would
be a sufficient assignment in full.
An endorsement cannot be made for less than the full sum,
unless part of it has been paid; viz. it must be for what appears
H
58
CIVIL DIVISION.
to be-due upon the instrument at the time of endorsement; if it
were otherwise, it would.make the acceptor liable to two or
more actions, instead of one. If part of the bill, however, has
been paid, the balance may be transferred. 2 Wil. 262. I
"8alk. 65.
A transfer by endorsement,vests in the assignee a right of ac-
tion on a bill or note, against all the precedent parties to it.
An endorsement implies an undertaking from the endorser, to
the endorsee, and to every other person to whom the bill or note
may be afterwards transferred. A transfer by endorsement is a
similar act to making a new bill in all its legal consequences; and
the endorser may in every respect be considered as a new draw-
eron the original drawee of a bill, or the maker of a note. On
this principle it has been decided, that a promissory note, endor-
sed, may be declared on as a bill of exchange. 1 Strange, 478.
1 Salk. 133. 3 Salk. 68. 2 Show. 441, 495, 501. 2 Burr. 674.
But this undertaking, or obligation from the endorser to the en-
dorsee, &c. is only as a conditional security. He only agrees to
be ultimately responsible, where the endorsee uses due diligence.
This brings us at once to the question, What degree of diligence
shall bind the endorser? And, what want of diligence shall dis-
charge him? All instruments of writing for the payment of mo-
ney absolutely, with or without seal, are placed by our statutes
on the footing of inland bills of exchange. If the parties (that
is, the acceptor of a bill of exchange, or the maker of a promis-
sory note, and the assignor and assignee,) reside in thesametown
or neighborhood, demand should be made on the third day of
grace, [Broddie vs. Searcy, Peck's R. 184,] as before stated, and
notice of non-payment given the same day to the endorser, if pos-
sible, and by that day's post if the parties are resident out of
the town or neighborhood; or by such other mode of conveying
the same with reasonable despatch as the party may have in his
power, as by sending it directly by a private hand. This notice
is due from the assignee to his immediate endorser, and so on
throughout the whole number of parties concerned in the pay-
ment of the bill or note; and it is advisable for every party, im-
mediately on the receipt of such notice, to give a fresh notice to
such of those persons as are liable over to him, and against whom
he must prove notice. Bayl. 83. Max. 146.
XOTIOXS OV UEH'I'.
If the person entitled to notice he absent at any considerable
distance from his residence, notice of non-acceptance,.or non-pay-
ment, should be left at his residence, with his wife, if he have one,
and payment demanded of her; or, if he have no wife, and has an
agent, or a servant accustomed to attend to his master's business,
it ought to be left with them, and paymenl demanded of them: but
if he have neither wife, agent, or servant, then the notice to be left
in such a situation at his residence as will render it reasonably
probable that it might come to his hand. Esp. Ca. N. P. 511, 512.
Put if tl le drawee of a bill of exchange, or the maker of a
prommissory note or other negotiable instrument, should die be-
fore the time of presentation of such instrument for payment,
immediate notice of such death ought to be given to the draw-
or, or endorser, in order that he may remit a proper sum for
payment. And in the case of a bill of exchange, it is extreme-
ly doubtful whether a demand of the representative of the de-
ceased he necessary, as such representative cannot properly be
required to accept; for they are not bound to enter into a per-
sonal obligation, and cannot, by any acceptance, affect the pro-
perty of the deceased. Evans, 51. But if there is a legal rejTfe-
sentative, when any other instrument of a negotiable character
falls due, it ought to be presented to him, and a demand of pay-
ment made; hut if there is no legal representative at the time
such instrument should he presented for payment, then imme-
diate notice of the death of the drawer, or maker, should be giv-
en. It has been decided, that if the drawee has assets, his death
will he no excuse for the want of notice to a drawer of a bill
of exchange. Russell vs. Longstaff, Doug. 497. I T. R. 498. 2
II. Bl. 012. In all cases of death, loss, or other accident, it is
advisable and regular to give notice, which can only be dispen-
sed with under circumstances peculiarly special, as where the
notice has been rendered impossible, or where none of the par-
ties can reasonably complain of a want of notice. The death
of the holder, illness or unavoidable accident, will be an excuse
for notice, provided it be given as soon as possible after the im-
pediment has been removed; but notorious insolvency will be no
excuse for not presenting a bill or note for payment to the per-
son upon whom a bill is drawn, or the person by whom a note is
made. 2 II. Bl. 609.
60
CIVIL DIVISION.
If the holder of a bill or note receive a part of the money
from the drawer of the bill, or maker of the note, and take a
promise from him on the back of the bill or note (or any other
assurance) for the payment of the residue at an enlarged time,
it shall be considered as a waiver of his security by the drawer
or endorser. Bayl. 56.
The acceptor of a bill of exchange, is that party who agrees,
either verbally or in writing, or constructively from his conduct,
to pay the bill. Previously to such acceptance he is called the
drawee.
No precise form of words, or other ceremony, is necessary to
make an acceptance of a bill a good one; and a verbal accept-
ance is equally binding upon the drawee as a written one.—
Holt, 297. The words, "leave the bill and I will accept it,"
will amount to a complete and absolute acceptance,- although
the drawee had no consideration for the promise. 3 Burr. 1669.
What shall amount to an acceptance; is a matter of fact, de-
pendent on the circumstances of each particular case; but any
act of the drawee, evincing his consent to comply with the re-
qudst of the drawer, may amount to an acceptance, as, a di-
rection to a third person to "pay the bill," or, to say on the bill,
"I have seen the bill,"or, "the bill has been presented," or mark-
ing on the bill the day upon which it falls due, without accept-
ance, will amount to an acceptance. Yin. Ab. tit. Bills of Ex.
1-4. Comb. 401. Bui. N. P. 270. 3 Burr. 1669.
Where there are two joint traders, or partners, and one ac-
cepts a bill drawn on the firm, if it concern trade, both will be
bound by such acceptance. And it was solemnly decided in the
case of Sherriff vs. Wilks, that the act of one partner, in the
name of the firm, is obligatory on the others, though it may be
on his own separate account, unless the party claiming the ben-
efit of it, receive it with a knowlege of that circumstance. In
such case the others will not be bound. 1 East, 48. 2 Vern. 277,
292. Esp. 522. Peake's Ev. 80. One partner may pledge the
credit of his co-partnership to any amount, by any act in the way
of merchandize, done in the name of the firm. Burr. 1216,1221.
1 Bl. Rep. 275. One partner, however, cannot bind another by
deed, (that is, by an instrument under seal,) without his express
authority to do so. 1 T. R. 313. 7 T. R 207. Max. 153.
ACTIONS OP DEBT.
61
If the bill or note express any particular place where they are
to be presented for payment, and the maker of a note, or the
drawee or acceptor of a bill of exchange, be removed from such
place, the holder or endorsee should endeavor to find out his new
residence, and there present it, if he has not left the State; but
if he has absconded, no further enquiry is necessary. If he has
left the country temporarily, and has left either a wife or agent,
the bill or note ought to be presented to them for payment, and
upon non-payment, to give notice immediately, or as soon as may
be, to the drawer or endorser, as the case may be.
If there is no place of payment mentioned in the bill or note,
it is the business of the holder to find out the residence of the
drawee of a bill, or the maker of a note, and present the same
to him in person, if at home, or to his wife or agent, if tempora-
rily absent; but if he has removed out of the State, and that
fact be unknown to the payee or endorsee, he must present the
note or bill at his last place of residence, as it is possible some
agent may have been left there to pay off and take up such note
or bill; and if there be no one left to that end, and the note or
bill is not paid, notice must be immediately given, as before
stated.
The drawee of a bill may make a partial acceptance of it,
and that is, an agreement to pay according to the tenor of the
acceptance, and vary as to some time or place. It may vary ai-
so from the tenor of the bill in the manner in which the acceptor
undertakes to pay the bill. All these acceptances, although the
holder of the bill may refuse each, will, nevertheless, bind the
acceptor; and the holder of a bill in either of these cases, if he
mean to have recourse to the other parties, in default of pay-
ment, should give notice to all of them of such acceptance, and
express in the notice the nature of the acceptance specially,that
the drawer may take such steps as he may please, if he does not
acquiesce in it.
When a bill is drawn on one man who may refuse to accept
it, or is absent on business, or has removed or absconded from
the State, a third person may accept the bill for the honor of the
drawer. It is usually called an acceptance supra protest, and is
made after protest for non-acceptance. This acceptance is
made for the honor of the bill, the drawer, or any particular en-
62
CIVIL DIVISION.
dorser; in which latter case he should immediately send the pro-
test to the endorser, because the person taking such protest U
styled the acceptor for the honor of the person in whose behalf
he comes forward, in which case he acquires certain rights, and
subjects himself to the same obligations as if the bill had been
originally directed to him. This acceptance, upon honor, binds
the party making it absolutely to pay the contents when it shall
fall due, whether he has any of the funds in his hands of the
drawer's or endorser's, or not; but a general acceptance is a
presumptive evidence of his possessing sufficient effects of the
drawer's in his hands. The acceptance supra protest must be
special in stating for whose honor it is made, thus: "Accepted
after protest, in honor of A B," and signed with his name, and
dated with the proper date. It has been held by some law wri-
ters, that this acceptance for, or upon honor, ought to be made
in presence of the Notary Public and two witnesses, after the
bill has been regularly protested for non-payment or non-accept-
ance, as the case may be. This is the usual course of proceed-
ing on foreign bills of exchange; but I believe it is unnecessary
in relation to inland bills of exchange; for the protest of an in-
land bill of exchange is only necessary in regard of damages
and interest, and not to subject the drawers of endorsers to an
action at the suit of the person discharging such bill for their
honor. In support of this opinion I can call to my aid Maxwell
and Evans, two able and accurate writers on the law of bills of
exchange. An acceptance for or upon honor, is a good and ef-
fectual acceptance, if made on an inland bill of exchange at
any time after presentation for acceptance, and before notice to
the drawer and endorser of non-acceptance. Max. on Bills, 8.
Evans on Bills, 34.
When an action may be brought against the drawer.—It is set-
tied, that if the drawree of a bill of exchange should not accept
the bill when duty presented for the purpose of acceptance, the
drawer will be responsible, whether such bill were drawn on his
own account, or that of a third person, and an action may be
commenced immediately against him before the time specified
in the bill of exchange expire, not only for the principal sum,
but also for damages and costs. Max. on Bills, 9.
In case of non-acceptance, the action may be brought not onlj
ACTIONS OF DEBT.
63
against the drawer, but against all antecedent endorsers. Doug.
54. Bull. N. P. 269. The suit majr be brought against
_ i i • • 1820j c. 25.
all or any two or more of the endorsers, jointly, or
at bis election, against the maker, and any one or more of the
endorsers of a promissory or negotiable writing obligatory; and
where "suit is brought jointly against all, or any two or more of
the endorsers of a bill of exchange, promissory note, or negotia-
ble writing obligatory, and the plaintiff shall be entitled to re-
cover against one or more, but not against all who are jointly
sued, the discharge of one or more shall not prevent a verdict
and judgment from being rendered against bim, her or them,
who may be liable."
The alteration of a bill or note, whilst in the hands of the
payee, or any bolder, in a material part thereof, without the
consent of the other parties to the same, as in sum, date, &c.
will sometimes destroy the obligation, as in the case of Master
vs. Miller, where, by the opinion of all the judges except Bui-
ler, the alteration of the date from the twenty-sixth to the
twentieth, of a bill due three months after date, though it did
not appear by whom the alteration was made, utterly destroyed
the obligation of the instrument, notwithstanding it had subse-
quently fallen into the hands of an honest and fair dealer. Max.
on Bills, 31.
We shall in the next place point out the forms of proceeding,
and the evidence necessary to support each form of action, on
negotiable instruments. * The first we shall notice is an action
by the payee of a bill of exchange against the acceptor.
THE WARRANT.
"State of Tennessee,) ss.•—To any lawful officer to execute and
county,} return:
You are hereby commanded to summon C D to appear before
me, or some other justice of the peace for said county, to answer
the complaint of E F, in a plea of debt under one hundred dol-
lars, due by the acceptance of said C D of a certain bill of ex-
change, drawn by A B, in favor of said E F, on the said C D,
which said bill is herewith filed. Herein fail not. Given under
my hand and seal, this day of A. D. 18 " [To be
signed and sealed officially by the justice.]
On the trial the plaintiff must prove that the acceptance was
made by the defendant, either verbally or in writing.
m
CIVIL DIVISION.
If, however, the acceptance was made after sight of the hill,
or the acceptance be endorsed on the back bj the defendant, the
mere production of the instrument is sufficient, because such ac-
ceptance or endorsement admits the drawer's hand-writing. If
these facts be made out by the plaintiff, he will he entitled to a
judgment against the defendant, unless he can show by proof that
the bill has been paid either by himself or some other person;
for if the bill be paid, the contract between the parties is ter-
minated, and though it should afterwards be endorsed, it would
only be good against such endorser. H. Bl. 89. See Infancy,
Gaming, fy-c.
THE JUDGMENT.
UE F\ plaintiff vs. C jD, defendant.—At, &c. (as before) the
parties being present, and the warrant and bill of exchange be-
ing read to and heard by the defendant, and the proof on both
sides being heard and fully understood: It is considered by me,
that the plaintiff recover of the said defendant the sum of
dollars, the amount in the bill of exchange specified, and the
further sum of for interest thereon, and all costs in this
behalf accrued, for which an execution may issue." [To be
signed, &c.]
If the bill was accepted by an agent or servant, the plaintiff
must prove that such agent or servant was legally authorized so
to do by his principal. In the case of an endorsee against the
acceptor, the form of the proceedings and the evidence will be a
little variant from the case of the payee against the acceptor.
THE WARRANT.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon C D to appear before
me, or some other justice of the peace for said county, to answer
the complaint of G H, assignee of E P, of a plea of debt under
one hundreff dollars, due by the acceptance of the said C D of
a certain bill of exchange, drawn by A B, in favor of a certain
E F, on the said C D, and by the said E F assigned to the
said G H, which said bill is herewith filed. Herein fail not. Giv-
en under my hand and seal, this day of A. D. 18 ."
[To be signed and sealed officially by the justice,]
On the trial the plaintiff must prove the endorsements on the
ACTIONS OP DEBT.
65
bill, from the payee down to himself, by the subscribing witness-
es, if there be any, and if not, then prove the hand-writing of
the endorsers, as before pointed out.
The last form of a warrant will suit the case of any endorsee
against an acceptor, except that it is necessary to mention the
names of all the endorsers,thus: "A B, assignee of C D,assignee
of E F, assignee of G II," and so on through the whole number
of endorsers, whether there be many or few.
Where several persons accept, the acceptance of all must be
proved, as before stated, or that a partnership existed between
them, and that the acceptance was made by one of them for
himself and partners. Esp. N. P. 135. Peake, 16.
The form of proceeding and evidence in an action against the
drawer of a bill by the payee, on non-acceptance, ought to be
as follows:
THE WARRANT.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,3 return.
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of E F, of a plea of debt under one hundred dol-
lars, due by a certain bill of exchange, drawn by the said A B
in favor of the said E F, on a certain C D, and which said bill
of exchange the said C D refused to accept, of which the said
A B had notice. Herein fail not," &c. [To be signed, &c.]
On the trial, the plaintiff must prove the presentment to, and
non-acceptance by C D, and the notice thereof to the defend-
ant; and if the bill be a foreign bill of exchange, protest, as
well as notice must be proved.
Judgment in favor of an assignee, against the acceptor of a bill.—
"GII, assignee, &c. vs. C D, acceptor, &c.—At, &c. (as before)
the parties being present, and the warrant and bill aforesaid,
with the endorsements thereon, being read to and heard by the
said defendant, and the proof on both sides being heard by me
and fully understood: It is considered by me, that the said plain-
tiff recover of the said C D the sum of dollars, the amount
in said bill of exchange specified, and the further sum of
for interest thereon, and all costs of suit, for which an execution
may issue." [To be signed, &c.)
60
CIVIL DIVISION.
A judgment for the payee against the drawer, will, in form,
be the same as the last.
Mode of proceeding in the case of an assignee against an immediate
endorser on a bill of exchange, promissory note, bill single, or note
under seal.
THE WARRANT.
' 'State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return.
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to an-
swer the complaint of C D, assignee, <fcc. of a plea of debt un-
der one hundred dollars, due by the endorsement (in full, or in
blank, as the case may he,) of the said A B to the said C D,
upon a certain bill of exchange, [promissory note, or bill single,
as the case may be,] drawn by one E F, on one G H, in favor
of the said A B, which said bill of exchange [promissory note,
or bill single, as the case may be,] is herewith filed. Herein
fail not. Given under my hand and seal, this day of
A. D. 18 ." [To he signed, &c.]
On the trial the plaintiff must prove the presentment, the
non-acceptance, or non-payment, and the notice to the endor-
ser; and in case of a foreign bill, the protest also must be pro-
ved. The production of the protest, if properly authenticated,
w;\', prove itself.
JUDGMENT FOR THE PLAINTIFF.
"At, &c. (as before) the parties appearing and being present,
and the warrant and bill, or note, aforesaid, with the endorse-
ment thereon, being read to and heard by the defendant, and
the proof on both sides being heard and fully understood: It is
considered by me, that the plaintiff recover of the said defend-
ant, as endorser as aforesaid, the sum of the amount
specified in said bill, [bill single, or promissory note, as the case
may be,] 'and the interest accrued thereon, and all costs which
have in this behalf accrued, for whpch an execution may issue."
[To be signed, &c.]
The form of proceeding on a note with or without seal, by
the endorsee against the endorser, will, in every respect, be the
same as upon a bill of exchange; but that there may be no
ACTIONS OF DEBT.
67
mistake, I will here give the form of a warrant, state the indis-
pensable evidence, and recite the form of the judgment.
THE WARRANT.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return.
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of C D, assignee, &c. of a plea of debt under one
hundred dollars, due by the endorsement of the said A B to the
said C D, (in full, or in blank, as the case may be,) on a certain
note of hand, (or bill single, as the case may be,) executed by
one E F, to the said A B, and by him assigned to the said C 2).
which note is herewith filed. Herein fail not. Given under my
hand and seal, this day of A. D. 18 ." [To be signed, &c.]
On the trial, the'plaintiff must prove the presentment for pay-
ment, the non-payment, and the notice thereof to the defendant.
FORM OF JUDGMENT.
"At,&c. the parties being present, and the warrant and the
said note_of hand, and the assignment thereon, being read to and
heard by the said defendant, and the evidence on both sides be-
ing heard and fully understood: It is therefore considered by
me, that the plaintiff recover of the defendant the sum of
dollars, for principal and interest, and all cost in this behalf ac-
crued, for which an execution may issue," &c. [To be sign-
ed and sealed officially by the justice.]
Form of a warrant at the suit of the last endorser, against the second
endorser of a bill of exchange, promissory note, bill single, fyc.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon E F to appear before
me, or some other justice of the peace for said county, to an-
6wer the complaint of R S, assignee of P Q, assignee of N O,
assignee of L M, assignee of I J, assignee of G H, assignee of
the said E F, in" a plea of assumpsit under one hundred dollars,
due by the assignment of the said E F, in full to the said G H,
&c. on a certain bill of exchange drawn by one T W, on a
certain A B, in favor of a certain C D, and by him assigned to
the said E F, which said bill is herewith filed. Herein fail not.
Given under my hand and seal, this day of A. D, 18
[To be signed, <fcc.j
08
CIVIL DIVISION.
On the trial the plaintiff must prove the signatures of the endor-
sers, from the defendant down to himself, the presentment for
payment, the non-payment, and the notice to the defendant.
Form of a warrant at the suit of an assignee, against a remote endor-
ser of a promissory note.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return.
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of L M, assignee of I J, assignee of G H, assig-
nee of E F, assignee of C D, assignee of the said A B, of a plea
of assumpsit under one hundred dollars, due by the assignment
of the said A B to the said C D, on a promissory note made by
one O N to the said A B, which promissory note is herewith
filed. Herein fail not. Given under my hand and seal, this
day of A. D. 18 ." [To be signed, &c.]
The evidence to support such a case as the above will, in ev-
ery respect, be the same as in the case of an assignee against a
remote endorser on a bill of exchange, andrihe judgment will
also be the same.
Form of a warrant, and other proceedings, on a bill of exchange, in
a suit by the executors of the last assignee, against the drawer.
"State of Tennessee,) ss.—To any lawful officer to execute and
county ,5 return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of N O, executor of the last will and testament of •
L M, deceased, assignee of I J, assignee of G H, assignee of E
F, of a plea of assumpsit under one hundred dollars, due by a
certain bill of exchange drawn by the said A B, on a certain C
I>, in favor of the said E F, which said bill is herewith filed.—
Herein fail not. Given under my hand and seal, thi$ day
of A. D. 18 ." [To be signed, &c.]
Form of a warrant by an administrator of an assignee against the
drawer.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to an-
ACTIONS OF DEBT.
69
swer the complaint of N O, administrator of all and singular the
goods and chattels, rights and credits of LM, deceased, assignee
of I J, assignee of G H, assignee of E F, of a plea of assumpsit
under one hundred dollars, due by a certain bill of exchange,
drawn by the said A B, on one C D, in favor of the said E F,
which said bill is herewith filed. Herein fail not. Given un-
der my hand and seal, this day of A. D. 18 ." [To
be Mgned, &c.]
The testimony in the two last forms of action will, in every
respect, be the same as in a case of any other assignee against a
drawer, except that the executor must produce his letters testa-
mentary, and an administrator his letters of administration, at
the trial.
Form of a judgment in favor of an executor of an assignee, against
the draxeer of a bill of exchange.—"At, &c. (as before) the parties
being present, and the warrant and bill of exchange being read
to and heard by the defendant, and the proof on both sides being
heard and fully understood, and the letters testamentary being
produced by the plaintiff: It is therefore considered by me, that
the plaintitF recover of the said defendant the sumjff for
principal and interest on said bill of exchange, and all costs in
this behalf accrued, for which an execution may issue." [To
be signed officially by the justice.]
Form of a judgment of non-suit for a defendant, for -want ojproof
of demand and notice in a suit by an assignee against the drawer.—•
"At my own house, &c. the parties being present, and the war-
rant and bill being read to and heard by the defendant, he says,
that there was no demand made of the drawee, and a non-ac-
ceptanc.e, and notice thereof given to him as required by law,
and the plaintiff failing to prove demand and notice as aforesaid,
he therefore consents to a non-suit: It is therefore considered
by me, that the plaintiff be non-suited, and that the defendant go
hence without day, and recover of the plaintiff the costs in this
behalf accrued, for which an execution may issue." [To be sign-
ed and sealed officially by the justice.]
The foregoing forms of judgments will suit for an executor
or administrator, as well as in the case of a person who sues in
his own right. In all judgments of non-suit, the rights of the
parties have not been decided, and therefore the plaintiff is at
70
CIVIL DIVISION.
liberty to begin again; but he ought never to do so unless he
is certain he can supply the defect for which he suffered a non-
suit. No plaintiff can be non-suited but by his own consent,
and therefore, may demand a judgment on the merits, if he
choose, to the end that he may appeal, &c. Bacon, assignee, vs.
Parker, 2 Tenn. Rep. 55.
When the judgment is for a defendant on the merits of the
case, between endorsee and maker, in consequence of negligence
in making demand and giving notice, it will be in the form fol-
lowing:
"At, &c. the parties being present, and the warrant, bill of
exchange, and endorsements thereon, being read to and heard
by the defendant, he says, that the plaintiff his action against
him ought not to have and maintain, because he says, the
plaintiff has been guilty of gross negligence in presenting the
bill for acceptance, and giving him notice of non-acceptance;
and the testimony on both sides being heard and fully under-
stood: It is therefore considered by me, that the plaintiff has
been guilty of gross negligence in presenting the said bill for
acceptance, and in giving notice to the defendant, and that the
defendant go hence without day, and recover of the plaintiff all
costs in this behalf accrued, for which an execution may issue."
[To be signed, &c.]
Form of proceedings in the suit of an assignee, against the adminis-
trator of a drawer of a bill of exchange.
THE WARRANT.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon A B, administrator
of all and singular the goods and chattels, rights and credits, of
N O, deceased, to appear before me, or some other justice of the
peace for said county, to answer the complaint of J K, assigneee
of R S, assignee of G II, of a plea of assumpsit under one hun-
dred dollars, due by a certain bill of exchange, drawn by the
said N O, in his lifetime, on one E F,.in favor of G H, which
said bill of exchange is herewith filed. Herein fail not. Giv-
en under my hand and seal, this day of A. D. 18 "
[To be signed, &c.]
The evidence will, in this case, be the same as against any
ACTIONS OF DEBT.
71
other drawer; but if the defendant deny that he is an adminis-
trator, the plaintiff must prove him to he such by the production
of a certified copy of his appointment, and the issuance of the
letters of administration from the records of the county court;
and the same course must be pursued where an executor as a
defendant denies his fiduciary character, i. e. that he is exe-
cutor.
Form of a judgment for the plaintiff on the above warrant.-—"At
my own house, &c. the parties being present, and the warrant
and bill of exchange, and the endorsements thereon, being read
to and heard by the defendant, and the testimony on both sides
being heard and fully understood: It is considered by me, that
the plaintiff recover of the said defendant, as administrator as
aforesaid, the sum of dollars, for principal and interest on
said bill of exchange, and all costs in this behalf accrued, to be
levied of the goods and chattels, rights and credits, of the said
N O, deceased, in the hands of the said defendant to be admin-
istered, for which an execution may issue." [To be signed, &c.]
Form of an execution on the above judgment.
'State of Tennessee,! ss.—To any lawful officer to execute and
county,5 return: ,
You are hereby commanded, that of the goods and chattels,
rights and credits of N O, deceased, in the hands of the said A
B, administrator as aforesaid, to be administered, you cause to be
made the sum of dollars, for debt and damages, and the
further sum of dollars, cost of suit, which R S lately recov-
ered against the said A B, administrator as aforesaid. Herein
fail not, and have you the said moneys ready to render within
the time prescribed by law. Given under my hand and seal,
this day of A. D. 18 ." [To be signed, &c.]
The judgment and fieri facias against an executor, on the
foregoing form of a warrant against him, will be precisely the
same as in the last form against an administrator, except that
the word executor, instead of administrator, must he used where-
ver the word administrator occurs.
The form of proceeding by an executor of the assignee against
the administrator of the endorser of a promissory note, should
be as follows:
n
CIVIL DIVISION.
THE WARRANT.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return.
You are hereby commanded to summon A B, administrator
of all and singular the goods and chattels, rights and credits of
E F, deceased, to appear before me, or some other justice of
the peace for said county, to answer the complaint of I J, ex-
ecutor of the last will and testament of G H, assignee of E F,
of a plea of debt under one hundred dollars, due by the assign-
ment of the said E F, in his lifetime, made on a promissory note,
made by L M to the said E F, which said note is herewith filed.
Herein fail not. Given under my hand and seal, this day
of 18 [To be signed, &c.]
The mode of proceeding by an endorsee, against the draw-
er of a hill of exchange, may properly he as follows:
THE WARRANT.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of I .J, assignee of G H, assignee of E F, of a
plea of debt under one hundred dollars, due by a certain bill
of exchange drawn by the said A B, on a certain C D, in favor
of the said E F, and by him assigned to the said I J, which
said bill of exchange is herewith filed. Herein fail not. Giv-
en under my hand and seal this day of A. D. 18
[To be signed, &c.]
The mode of proceeding by the last endorsee, against the
first endorser, on a note with a seal, legally called a bill single.
THE WARRANT.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon C I), assignee of E
F, to appear before me, or some other justice of the peace for
said county, to answer the complaint of L M, assignee of J K,
assignee of G H, assignee of C D, assignee of said E F, of a plea
of assumpsit under one hundred dollars, due by the endorse-
ment of the said E F, in full, on a certain bill single, made
by one A B to the said E F, and by him assigned to the said
Actions of debt.
73
E I\ anil by bim assigned to the said C D, which bill single is
herewith filed. Given under my hand and seal, this day of
A. D. 18 ." [To be signed, &c.]
In this case, as avcII as in those of endorsees against endor-
sers on hills of exchange, the plaintiff must prove all the en-
dorsements from the defendant down to himself. The present-
meat, the non-payment, and the notice to the defendant of the
pre-entment and non-payment, must also be proved.
Form of a jinhjtiu nt on the above zrarrant for the plaintiff.—"At,
«Ac. the parties being present, the warrant and bill single, with
the endorsements thereon, being read to and heard by the said
defendant, and the testimony on both sides being heard and fully
understood: It is therefore considered by me, that the said plain-
tiir recover of the said defendant the sum of dollars, for
principal and interest on said note, or bill single, and all costs
in this behalf accrued, for which an execution may issue."
The mode of proceeding by an endorsee against the maker of
a promh-sorv note, and the first endorser, will be as follows:
the warrant.
"State of Tennessee.) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B, the maker, and
(' I), the payee of said A B, to appear before me, or some oth-
er justice of the peace for said county, to answer the complaint
of K L, assignee of I J, assignee of G II, assignee of E F, as-
•figure of C I), of a plea of debt under one hundred dollars, due
from the said A B, by a certain promissory note made by the
said V B, to the said C D, and by the endorsement of the said
C I), on the said promissory note, which said promissory note is
herewith filed. Herein fail not. Given under my hand and
seal, this day of A. D. 18 ." [To be signed, &c.]
B\ an act cf assembly of this State, an endorsee of any for-
eign or inland bill of exchange, promissory note, or negotiable
writing obligatory, may commence and prosecute an action for
principal, interest, and charges of protest, (if any there be)
against all or any two or more of the endorsers, jointly, or at
his eh ction, prosecute an action of debt jointly, against the ma-
ker of such writing obligatory, and one or more of the endorsers
thereof, and judgments may be given accordingly; and the dis-
74
civil division*
charge, by verdict, or otherwise, of one or more of the defend-
ants, shall not prevent a judgment from being rendered, and
made good and effectual against the other defendants." On
the trial, the plaintiff has nothing to do but produce the prom-
issory note, with the endorsements thereon; but he must prove
the endorsements down to himself, if the defendants will deny
their signatures on oath, in the nature of a plea of non est fac-
turn, heretofore pointed out for the maker of a promissory note.
If a defendant desire to deny what purports to be his assignment,
or, in legal language, wishes to file his plea of non assignavit, he
must do so after the following manner:
"The defendant, C D, says, the plaintiff his action against
him ought not to have and maintain, because he says, that the
endorsement made on the hack of said promissory note, is not
his assignment, and the signature is not his hand-writing, nor
was the same done by his authority, knowledge, or consent.
Sworn to and subscribed before me,) C D, [l.s.]
this day of 18 5
P Q, Justice of the Peace
Form of a judgment for the plaintiff on the above form of a war•
rant.—"At, &c. the parties being present, and the warrant and
the assignments thereon being read to and heard by the said de-
fendants, and the testimony on both sides being heard and fully
understood: It is therefore considered by me, that the said plain-
tiff recover of the said A B, as maker, and C D, as endorser of
said promissory note, jointly, the sum of dollars, for principal
and interest due on said note, and all costs in this behalf ac-
crued, for which execution may issue." [To be signed, &c.]
The mode of proceeding by the last endorsee, against the ma-
ker and all the endorsers of a bill single, may be as follows:
the warrant.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B, the maker, and
C D, the payee of the said A B, E F, assignee of the said C D,
G II, assignee of E F, and I J, assignee of G II, to appear be-
fore me, or some other justice of the peace for said county, to
answer the complaint of K L, assignee of the said I J, of a
plea of debt under one hundred dollars, due by the bill single
ACTIONS or DEBT.
of the said A B, made to the said C D, and by the assignments
of the said C D, E F, G H and I J, on said bill single made,
which said bill single is herewith filed. Herein fail not. Giv-
cn under my hand and seal, this day of 18 ." [To be
signed, &c.]
It is unnecessary, in this form of action, to "prove the endorse-
ments of the defendants, as all are made defendants:
' 1819, c, 42
and it therefore lies upon each of them to deny the
making, or assignment, by each respectively, by plea in writing
on oath; but due diligence in presenting the bill single for pay-
ment, and notice of non-payment to each defendant, is indispen-
sable. The judgment will be a joint judgment of the same form
of the last. But if notice of demand and refusal to pay has not
been given to any one of the endorsers, within a reasonable
time, he is entitled to a judgment in his favor; but such judg-
ment is in no wise to affect the judgment against the other de-
fendants.
The judgment for one or more of such defendants, will be of
the form following:
"And it also appearing to my satisfaction, that E F, one
of said defendants, did not receive due notice of the present-
ment of the said bill single for payment, and the non-payment
thereof by the said A B: It is therefore considered by me, that
the said defendant E F go hence without day, and recover of
the said plaintiff the cost about his defence in this behalf ac^
croed, for which an execution may issue. » [To be signed, &c.]
Before we quit this branch of the subject, it is indispensably
necessary to treat more fully of the duties, rights and liabilities
of executors and administrators, as connected with the commer-
cial world.
An executor is a legal person, appointed by a testator (or per-
son making a will) to manage and conduct his estate, both real
and personal, after his death, in such manner as is directed by
the will of the testator; and the moment the testator dies, his
authority as an executor commences, though such executor has
not then proved the will. It is therefore said, that an executQr
of a deceased holder of a bill of exchange, or endorsee of a note,
must be held to the same diligence that would be required at
the hands of his testator, although he has not proved the will.-—
7G
CIVIL DIVISION.
From thence it may be inferred, that if a note or bill fall due
the day after the death of the holder, and the drawer and em
dorser, &e. reside in the same neighborhood, the executor will
be required to make the demand, and give notice to the drawer,
or endorsers, on that day.
An administrator is a person appointed by the "county court
to take charge of, and administer the personal estate of any
man or woman who may have departed this life without disposing
of his or her estate by will. It is therefore required at the hand of
an administrator, to present a bill or note of which his intestate
was the holder, immediately after his qualification, or as soon
thereafter as he can make an inventory of Iris intestate's estate.
But no demand can be made of, or notice given to, an executor
or administrator, until they have been qualified as such; for un-
til then, no action can be maintained against them.
An executor or administrator, unless he is a lawyer himself,
should never enter upon the administration of an estate until he
shall have emoloycd some intelligent and learned lawyer to direct
him in the discharge of the many and intricate duties devolving
upon him; especially if the testator or intestate died much in
debt. Although an executor or administrator is not bound for the
debts of his testator, or intestate, beyond the amount of assets
which have come into his hands, yet, in many instances, he may
very innocently and ignorantly render himself liable out of his
own estate for such debts; as where an administrator or cxe.
cutor has faithfully, fully administered all and singular the goods
and chattels, rights and credits, of his testator, or intestate, which
have come into his hands to be administered, or which by rea-
sonabie exertion could have been reduced into possession, and a
suit, or suits, should be instituted against him in his fiduciary
character, for the debts of his testator, or intestate, and he should
suffer a judgment to go against him by default, or without hav-
ing pleaded and proved fully administered, if in a court of re*
cord, or proved fully administered if before a justice of tlie peace,
and the same should not be set aside, he would be liable out of
his own proper estate for the amount of such judgment or judg-
ments; because the suffering a judgment to go against him by
default, is an implied admission that he has in his hands assets
sufficient to satisfy the amount of the judgment; and it must be
ACTroNS OF DEBT.
a case peculiarly circumstanced, where a court of equity can
give relief. Therefore, an executor, or administrator, should
he particular in attending to all suits brought against him as
such, and prove that he has fully administered, or that there arc
prior judgments against him, and that he has no assets over and
above the amount necessary to satisfy such prior judgments.
Fo, •in of a judgment in favor of a defendant, executor, or ad minis-
iral n\ o f an (n,torsi r of a note or bill of exchange, upon the defence
of J "lip ad/ninisti r,d.—''At, Arc. the parties being present, and
the warrant and promissory note, [bill single, or bill of exchange,
as the case may be.] with the endorsements thereon, being read
to and heard by the defendant, he says that the plaintiff ought
not to recover against him as executor, [or administrator, as the
case may be,] because he says, he has well and truly administer-
ed all and singular the goods and chattels, rights and credits, of
his testator, [or intestate, as the case may be,] which have come,
or could come, into his hands to be administered, and the proof
on both sides being heard and fully understood: It is therefore
considered by me, that the defendant has fully administered.
But the plaintiff's right to a recovery against the deceased be-
ing manifest: It is further considered by me, that the plaintiff
recover against the said A B, executor as aforesaid, the sum of
dollars, for principal and interest, and all cost in this behalf
accrued, to be levied only of the goods and chattels, rights and
credits of the deceased, which shall hereafter come to the hands
of the said executor to be administered." [To be signed, &c.]
This form of judgment is called amongst lawyers, a judgment
for assets, quando accidcrint, or for goods and chattels when they
shall thereafter come to the hands of the executor or adminis
lrator to be administered.
It is most advisable for plaintiffs always, when entitled to re-
cover, to take a judgment for assets quando accidcrint, as our act
of assembly requires a justice of the peace who holds ^
the papers in a cause against an executor or admin-
isfrator, and has rendered a judgment against such executor or
administrator, and an execution has issued against the goods and
chattels of the deceased, and been returned, "No property found,"
on the requisition of the plaintiff, his agent or attorney, to return
the papers of such cause to the next county court of his county,
78
CIVIL DIVISION.
when a scire facias shall issue, and other proceedings be had for
the satisfaction of such judgment, out of the proper goods and
chattels, lands and tenements, of such executor or administrator,
in case the assets of the deceased have been wasted by such ex-
ecutor or administrator, or out of the real estate of the testator or
intestate. And the same proceedings as pointed out above, may
take place where the judgment was rendered against the testator
or intestate in his lifetime, and execution issued after his death,
and has been returned, "No property found," as aforesaid.
The foregoing will be a sufficient directory in all cases likely
to arise in relation to all suits by or against executors or admin-
istrators.
Before we leave what is called the law merchant, something
more must be said in relation to the proceedings by, and against
partners in trade.
Form of proceeding by partners against the maker of a promisso-
ry note.
THE WARRANT.
"State of Tennessee,) ss.—To any lawful officer to execute and
county ,5 return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of C D and E F, partners in trade, trading under
the firm and style of D and F, of a plea of debt due by a cer-
tain promissory note, made by the said A B, to the said partners,
by the name and style of D and F, which said promissory note
is herewith filed. Herein fail not. Given under my hand and
seal, this day of A. D. 18 ." [To be signed, &c.j
The judgment will be the same, in every respect, as one for
any other two persons.
Form of a warrant against partners, on a promissory note given by
the frm to an individual.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon C D and E F, part-
ners in trade, trading under the firm and style of D and F, to
answer the complaint of A B, of a plea of debt under one hun-
dred dollars, due by a certain promissory note, made by said
partners under the name and style of D and F, to the said A
ACTIONS OP DEB'i5.
79
15, which said promissory note is herewith filed. Herein fail
not. Given under my hand and seal, this day of
A. D. 18 [To be signed, &c.]
Form of a warrant by partners, against partners, on a note, <^c.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,| return:
You are hereby commanded to summon C D and E F, partners
in trade, trading under the firm and partnership name of D
and F, to appear before me, or some other justice of the peace
for said county, to answer the complaint of G II and I J, part-
ners in trade, trading under the firm and partnership name of
II and J, of a plea of debt under one hundred dollars, due by
a certain promissory note, [bill of exchange, or bill single, as
the case may be,] made by the said defendants, by the name
and description of D and F, to the said plaintiffs, under the name
and style of II and J, which said promissory note is herewith
filed. Herein fail not. Given under my hand and seal, this
day of A. D. 18 [To be signed, &c.]
Form of a warrant by partners against an individual, on an open ac-
count for goods, wares and merchandize sold and delivered.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return.
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of C I) and E F, partners in trade, trading under
the firm and partnership name of D and F, of a plea of assump-
sit, under fifty dollars, due by open account, for goods, wares and
merchandize sold and delivered, by the said plaintiffs, to said
defendants, which said account is herewith filed. Herein fail
not. Given under my hand and seal, this day- of
A. D. 18 ." [To be signed, &c.]
Form of a warrant by partners against an individual, on a settled
account.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return.
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of C D and E F, partners in trade, trading under
the firm and partnership name of D and F, of a plea of debt
80
CIVIL DIVISION.
under one hundred dollars, due by settled account, signed
by the said defendant, and the said plaintiffs, and which said
account is herewith filed. Herein fail no*. Given under -my
hand and seal, this day of A. D. 18 [To be sign-
ed and sealed officially by the justice.]
Partners have to prove their accounts in the same manner as
other individuals, viz. by witnesses, if there are any, and if not,
by their own oaths, under the book-debt law. The oath of one,
of them is sufficient, if he has knowledge of the delivery of all
the articles of goods, wares and merchandize, or of the work and
labor done; hut if a part only of the items of the account are
known to each, each must be sworn under the book-debt law,
and examined as to the items known by him.
Form of a warrant by an individual, against partners, on an open ac-
count, for work and labor done, as a house carpenter and joiner, on
a house for the firm.
"State of Tennessee,) ss.—To any lawful officer to execute and
county A return.
You arc hereby commanded to summon A B and C D, part-
ners in trade, trading under the firm and partnership name of
A B & Co. to appear before rae, or some other justice of the
peace for said county, to answer the complaint of E F, of a plea
of assumpsit under fifty dollars, due by open account, for work
and labor done and performed as a house carpenter and joiner,
on a certain house of the said defendants, and at their special
instance and request, and which said account is herewith filed.
Herein fail not. Given under my hand and seal, this day
of A. D. 18 [To be signed, &c.]
In such a case as the above, it lies on the plaintiff to prove the
partnership, if he was employed to do the work by the active
partner only, that is to say, the real person who will stand in the
place of A B, in this form of- warrant; and he must prove his
account by any one who knows lie performed the work and la-
bor, and the value of each item of the work. The plaintiff may
prove the doing and performing of the work by his own oath,
under the book-debt law, if he have no witness who can prove
it for him, and may then call witnesses to prove the value of
each item of the account.
ACTIONS OP DEBT.
81
Forui of a warrant by partners, who are cabinet-makers, for work and
labor done and performed:
"Slate of Tennes ss.—To any lawful officer to execute and
You arc hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to an-
swer the complaint of C D, E F and G II, partners in trade in
the cabinet-maker's business, under the firm and partnership
name cf C D & Co. of a plea of assumpsit, due by open account
under fifty dollars, for cabinet work done and performed for the
said defendant, and at his special instance and request, which
said account is herewith filed. Herein fail not. Given under
my hand and seal, this day of A. D. 18 ." [To be
signed, &c.]
If an action should be brought for the recovery of a partnership
demand, by one of the partners only, viz. in his individual name
instead of the name of the firm, the defendant may non-suit him
by proving that fact on trial. The judgment of non-suit will be
of the form following:
"At, Ac. the parties being present, and the warrant and open
account being read to and heard by the defendant, he says that
the plaintilFought to be non-suited, because the demand is apart-
nership demand, and due and owing (if at all) to the firm of A
B & Co. partners in trade; and the proof on both sides being
heard and fully understood: It is therefore considered by me,
that the demand is a partnership demand, and that in Eonse-
quence thereof the plaintifif be non-suited, and that the defend-
ant go hence without day, and recover of the said plaintiff the
cost about his defence in this behalf accrued, for which an exe-
cution may issue." [To be signed, &c.]
If the plaintiff will not consent to a non-suit, however, the
judgment may be made absolute against him.
If goods, wares and merchandize are sold and delivered to a
number of persons who are in partnership, or work and labor
done for them, and suit is only instituted against one or two of
them, the defendant or defendants, as the case may be, may non-
suit the plaintiff by proving the partnership, and that all the
partners reside in the county where the suit is instituted; but the
cou
return,
L
82
CIVIL DIVISION.
plaintiff is only bound to make as many of the firm defendant*
as are citizens of the county where the suit is commenced.
The judgment for the defendants under the last state of facts,
will be as follows:
"At, &c. (as before) the parties appearing, and the warrant
and account bei ng read to and heard by the defendant, he says
the debt owing the plaintiff is a partnership debt, due and
owing from himself and partners jointly, viz. himself and E T,
G H and I J, and that the said partners all reside in this county;
and the evidence on both sides being heard and fully understood:
It is therefore considered by me, that the debt is due and owing
by other partners jointly with the defendant, and that they re-
side in this county; and by reason whereof, it is further consider,
ed, that the plaintiff be non-suited, and that the defendant go
hence without day, and recover of the plaintiff his costs in this
behalf accrued, for which execution may i?sue."
The mode of proceeding against husband and wife, on a
promissory note made by the wife while sole, (single,) at the suit
of an endorsee, may be as follows:
THE WARRANT.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon A B, and C D his
wife, to appear before me, or some other justice of the peace
for said county, to answer the complaint of I J, assignee of
G H, of a plea of debt under one hundred dollars, due by a
certain promissory note made and delivered by the said C D to
said G II, while a single woman, and which said promissory note
was assigned by tfie said G II to the said plaintiff, and which
said note is herewith filed. Herein fail not. Given under my
hand and seal, this day of A. D. 18 ." [To be sign-
ed and sealed officially by the justice.]
The husband may be sued alone, and the warrant may be of
the form following:
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
me, or seme other justice of the peace for said county, to an-
swer the complaint of I J, assignee of G H, of a plea of debt
ACTIONS OF DEBT.
83
under one hundred dollars, due by a certain promissory note,
made and delivered by C D, the present wife of the said A B,
while a single woman, to the said G If, and which said note was
by him assigned to the plaintiff, which said note is herewith filed.
II erein fail not. Given under my hand and seal, this day
of A. D. 18 [To be signed, &c.]
Either form of proceeding will answer in such case, but the
latter is preferable, as being the most simple, and in more strict
accordance with the law.
The husband is liable for all debts contracted by the wife be-
fore marriage; for, as by marriage he becomes entitled to all her
property, he shall take it subject to her debts. 2 Bl. Com. 420.
But if a woman be indebted dum sola, (while sole or single,) and
marries and brings a portion to her husband, and dies, the cred-
itor shall lose his debt, unless he has sued for it and recovered it
in the wife's life-time, except she has left choses in action sufficient
to satisfy the debt; for by the law the husband is only liable to
his wife's debts during coverture, unless there has been a judg-
ment against him in his wife's life-time, as before stated. Heard vs.
Standford, 3 P. Wm's. 409.
The mode of proceeding after marriage, by a husband, on a
promissory note made to the wife while sole, maybe thus:
THE WARRANT.
"►State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of E F, of a plea of debt under one hundred dol-
lars, due by a certain promissory note, made and delivered by
the said defendant to C D, the present wife of the plaintiff, when
sole, which said note is herewith filed. Herein fail not. Given
under my hand and seal, this day of A. D. 18 "
[To be signed, &c.]
If a bill of exchange, or promissory note, be made to a feme
sole, or endorsed to her, and she afterwards marry, the right of
transfer vests in her husband, he being by the marriage entitled
to all her personal property. 1 Stra. 516. 3 Wil. Sel. Cases 10.
Mod. 216. It is said by Pothier, that a payment of a note or bill
to a married woman, by a person who knows her to be mar-
84
CIVIL DIVISION.
ried, which note or bill was given to her before marriage, will not
discharge the person making such payment. Poth. on Obi.
Form of a warrant against a husband, on an open account, for goods,
wares and merchandize sold and delivered to the wife while sole.
"State of Tennessee,) ss.—To any lawful officer to execute and
county ,5 return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of E F, of a plea of assumpsit under fifty dollars,
due by an open account, for goods, wares and merchandize sold
and delivered to a certain C D, while sole, and who is now the
wife of the said A B, which said account is herewith filed.—
Herein fail not. Given under my hand and seal, this day
of 18 (To be signed, &c.)
Form of a warrant by a husband, on an open account for work and
labor done and performed by the wife while sole, as a seamstress.
"State of Tennessee,) ss.—To any lawful officer to execute and
county, £ return:
You are hereby commanded to summon E F to appear before
me, or some other justice of the peace for said county, to answer
the complaint of A B, of a plea of assumpsit under fifty dollars,
due by open account, for work and labor done and performed
as a seamstress, by a certain C D, while sole, for the said E F,
and at his special instance and request, and which said C D is
the present wife of the said plaintiff, which said account is here*
with filed. Herein fail not. Given under my hand and seal,
this day of A. D. 18 ." (To be signed, &c.)
Where an action is brought by husband and wife, or by the hus*
band alone, for a debt or demand contracted to the wife while
sole, the marriage must be proved (if the fact of the marriage
be controverted) by a certified copy of the marriage license,
and the parson's or magistrate's return thereon, and the identi*
ty of the persons by some person who was present at the mar*
riage; but proof that they live together and pass as man and
wife, will be sufficient, where the suit is brought against them as
husband and wife. It is best always to bring the suit in the
name of the husband only, for work and labor done by the.wife
during coverture; and the warrant would be good without men-
tioningthat the work and labor was done by the wife; but as
ACTIONS OF DEBT.
85
the warrant ia in the nature of a declaration to give notice of
the plaintiff's demand, I think it most advisable always to state
in the warrant by -whom the work and labor was done. And
where the work and labor is done and performed by the wife,
and she is the only person who has knowledge of that fact, in-
stead of the husband being sworn under the book-debt law, to
depose to a thing of which he has no knowledge, the wife must,
from necessity, be sworn to prove the items of the account un-
der the rules prescribed by the book-debt law. It may become
frequently necessary to resort to this mode of proceeding, where
a ft mc covert is a seamstress, mantua-maker, milliner, or the like,
In such cases the husband but seldom, if ever, has any knowledge
of the work and labor done and performed by his wife, or of the
materials furnished in her line of business.
Form of a warrant for work and labor done and performed by a feme
covert, as a mantua-maker.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of C D, of a plea of assumpsit under fifty dollars,
due by open account, for work and labor done and performed
by E F, the w ife of the said C D, as a mantua-maker, for the
defendant, and at his special instance and request, which said
account is herewith filed. Herein fail not. Given under my
hand and seal, this day of A. D. 18 ." [To be sign-
ed, &c.]
Form of a warrant for work and labor done and performed by a ser-
vant, as a blacksmith.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of C D, of a plea of assumpsit under fifty dollars,
due by open account, for work and labor done and performed
by E F, the servant of the said C D, as a blacksmith, for the
said defendant, and at his special instance and request, which
said account is herewith filed. Herein fail not. Given under
my hand and seal, this day of A. D. 18 ."
86
CIVII, DIVISION.
Form of a warrant for work and labor done and performed, by the son
of the plain tiff while under age, for the defendant, as a carpenter. .
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon A B to appear before
me, or some other justice of the peace for said county, to answer
the complaint of C D, of a plea of assumpsit under fifty dol-
lars, due by open account, for work and labor done and perform-
ed by the son (under age) of the plaintiff, as a house-carpenter,
for the defendant, and at his special instance and request, which
said account is herewith filed. Herein fail not. Given under
my hand and seal, this day of A. D. 18 . ." [To be
signed and sealed officially by the justice.
A husband may recover the value of his wife's labor during
coverture, and also the value of her labor done and performed
before marriage, or any other debts due and owing to the wifo,
and to become due and owing to her, contracted with the wifq
while sole, if sued for and recovered during coverture; but after
death or divorce from the bonds of matrimony, the husband is
no longer entitled to recover debts or dues of any character, due
the wife before marriage, except as an administrator of his wife's
estate.
A son or a daughter under age, are in law considered as ser-
vants of the father, and he is entitled to their labor and obedi-
ence, as well as the proceeds of their labor; and if the same is
done and performed for another, the father is entitled to the val-
ue of it, and may recover the same in law.
By an act of Assembly of this State, passed in the year 1829,
chapter 24, it is enacted, "That hereafter any two justices of the
peace shall have jurisdiction in all cases of damages, where the
same arose from matters of contract, or any kind of tort, or
wrong done, except in actions of slander, where the damages
claimed by the plaintiff do not exceed fifty dollars: provided, ei-
ther party shall have the right to appeal from the judgment of
the justices to the county or circuit court.
I have always entertained the opinion, and in several instan-
cesl have judicially decided, that the above act of Assembly is
unconstitutional and void where the amount of damages claimed
exceeds twenty dollars. The legislature did possess the power of
ACTIONS OF DEUT DAMAGES.
87
[•lacing all actions for damages, where the amount claimed does
not exceed twenty dollars, under the control of one as well as
two justices of the peace; but above that sum they possessed no
power, cither moral or legal. Any law attempted/to be made
contrary to the constitution is void in its creation, and the courts
of justice are bound to pronounce it so, however painful the task.
I do not here intend to discuss this subject. This work is not
designed for controversy, but to enable the officers for whose use
it is made, to see and pursue the correct line of their duty. But*
in doing that, I am compelled to tell them the boundaries of
their jurisdiction; and in this place I will as candidly tell them
the extent of their authority, as I have done in any other place,
according to my understanding of the constitution, which is the
paramount and fundamental law of the land; and that extent, I
am clearly satisfied, is twenty dollars: and beyond that sum,
where the thing claimed is not a debt, but damages, a justice of
the peace cannot exercise constitutional jurisdiction, notwith-
standing the legislature (in an evil hour) have said they may go
as far as fifty dollars. If their jurisdiction can, by legislative
enactment, be extended beyond the sum of twenty dollars, (that
being the sum mentioned in the constitution of the United States,
and meant in the constitution of our own State,) why not extend
it to a thousand dollars, or any sum whatever? It is the consti-
tution, made by the people, the sovereign authority of this go*
vernment, which has fixed the boundary; and the legislature, no
more than a court, or an individual, can leap that boundary.
If an individual, or any number of persons, should levy war
against the United States, or should adhere to their enemies,
giving them aid and comfort, he or they would be hung for trea-
son. The constitution is the moral shield and fortress of the
American people. Is it a matter of much consequence to en-
quire by what means we have lost our liberties, if taken from us,
whether by open legal treason, or by secret moral treason, by
the exercise of powers by the legislature or courts, not given by
the people through the medium of the constitution^ All persons
who know any thing of the history of the ancient republics, can
witness that a republic is not likely to lose its liberties by open
external assault; that kind of attack the people could see, and
defend themselves against. Bufcjt is by piece meal that repub-
88
CIVIL DIVISION.
lies have their constitutions eaten away from them, and their li«
berties stolen, either by ignorance or design, or a combination
of both. The seventh amendment of the constitution of the
United States has these strong and pointed expressions: "In
all suits at common law, [that is, not in equity,] where the
value in controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved." This preservation hCre
spoken of, does not mean that the poor, the unpopular, and
the friendless man, shall have his cause first tried by a single in-
dividual, or two persons at most, and wrongfully decided against
him, and that then, if he can give security, (a thing impossible
with the classes of men I have mentioned) he may appeal, and
take his cause, under embarrassment, trouble and expense, to
the county or circuit court, where he may have a jury to decide
upon his rights. If through ignorance, or any cause whatever,
the party should lose his opportunity to appeal, the trial by jury
would be preserved with a vengeance. But the language of
our own constitution is still much more strong and emphatic than
the words used in the federal constitution. The 6th section of
the 9th article, has these words: "The right of trial by jury shall
remain inviolate." What right of trial? Answer—The right
of jury trial in all cases which a jury had a right to hear and
determine, in the first instance, at the date of the adoption of the
constitution, which was, "in all suits at the common law, where
the value in controversy shall exceed twenty dollars;" for that
was the largest sum or amount over which a justice of the peace
could exercise jurisdiction at that time; or, in other and more
appropriate words, the right of trial by jury was to be "preser-
ved inviolate" for all sums or demands over "twenty dollars."—
I find myself, contrary to my design, launched out into a discus-
sion of this subject. I will, however, here break off, by barely
observing, that all legislatures, judges and justices of the peace
ought to be certain that every act which they do, is clearly with-
in the pale of that constitution which they have taken a solemn
oath to support.
ACTIONS OF DEBT—DAMAGES.
89
F in71 of a zoarrant on 'the statute af 1829, for killing three cows of
the plaintiff's, by mangling them with dogs.
^Stalc of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon A B to appear before
us, or some other two justices of the peace for said county, to an-
s\\ er the complaint of C D, of a plea of trespass, with force and
arms, by tearing three cows with dogs, insomuch that they died,
to the plaintiff's damage fifty dollars. Herein fail not. Given
under our hands and seals, this day of A. D. 18 ."
[To he signed and sealed officially by two justices.}
The form of a warrant under the constitutional law of 1823
an d 1N2.3, will be in every respect the same as the above, ex-
cept that it will say under twenty, instead of under fifty dollars.
Thus:
TIIE WARRANT.
kState of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon A B to appear before
us, or some other two justices of the peace for said county, to an-
swer the. complaint of C D, of a plea of trespass with force and
arms for killing six hogs of the plaintiff's, to his damage twenty
dollars. Herein fail not. Given under our hands and seals,
this day of A. D. 18 ." [To be signed, &c. as above.]
Form of a judgment on the above warrant.—"At, &c. on, &c.
the parties both appearing, and the warrant being read to and
heard by the said defendant, he says he is thereof not guilty;
and the testimony on both sides being heard and fully under-
stood: It is considered by us, that the defendant did kill three
cows, [or six hogs,] and that they were of the value of thirty dol-
lars, [or if the hogs, were of the value of eighteen dollars,]
therefore, that the said plaintiff recover of the said defendant
the said sum of thirty dollars, and all cost in this behalf accru-
ed, for which execution may issue."
The. action of trespass is the proper remedy in all cases
where an injury has been committed by force and violence, ei-
ther to the person or property, real or personal, of the plaintiff
And the warrant should be drawn after the form of the two
first warrants under this head, where the forcible injury is done
M
90
CIVIL DIVISION"
to property. But if it is an injury done to the person by a bah
tery, false imprisonment, or the like, the warrants must be of the
form following:
"State of Tennessee,) ss.—To any lawful officer to execute and
county. 5 return:
You are hereby commanded to summon A B to appear before
us, or some other two justices of the peace for said county, to an-
swer the complaint of C D, of a plea of trespass assault and bat-
tery, with force and arms, for heating and wounding said plain-
tiff, to his damage twenty dollars. Herein fail not. Given un-
dcr our hands and seals, this day of A. D. 18 ."—
[To be signed, &c. by two justices.]
Form oj a warrant for false imprisonment.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,} return:
You are hereby commanded to summon A B to appear before
us, or some other two justices of the peace for said county, to an-
swer the complaint of C D, of a plea of trespass assault and bat-
tery, and false imprisonment, with force and arms, by beating,
wounding and falsely imprisoning the said plaintiff, to his damage
twenty dollars. Herein fail not. Given under our hands and
seals, this day of A. D. 18 ." [To be signed, &c.
as the above.]
The smallest touch of the person of another, in a rude, an-
gry or revengeful manner, is an assault and battery. The law
knows no degrees in batteries, in the constitution of the offence,
although the fine or damages may become greatly enhanced by
the violence of the battery. The measure of the damages will
properly depend upon the facts of each particular case.
There are many mere assaults, without batteries, for which
the party assaulted ought to be remunerated in damages, as
where attempts are made to do the plaintiff some great bodily
harm.
An assault is thus defined: "The unlawful setting upon the
person of another, as by an offer or attempt to strike, to kick,
to shoot, or otherwise hurt another." This is an inchoate injury,
and shows the purpose of the defendant's heart as much as if he
had executed his design. The violence of the assault is some-
times of such a character, as to occasion the most painful sensa-
ACTIONS OP DEBT DAMAGES.
91
tion and alarming trepidation, for which damages ought to be
allowed of an exemplary nature.
An imprisoment is any the least confinement of the person of
another, in the public jail, the stocks, or any house, or in the
open streets, or elsewhere, contrary to his will and consent. Un-
lawful or false imprisonment consists in such confinement or de-
tention, without the authority of the law. Every false impris-
onment includes an assault and battery.
Form of a zcarrant fur an assault without a battery.
'•State of Tennessee.) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
u>. or any other two justices of the peace for said county, to an-
-u er the complaint of C D, of a plea of trespass and assault,
uith force and arms, for offering and attempting to beat, abuse
and ill-treat the said plaintiff, to his damage twenty dollars.—
Herein fail not. Given under our hands and seals, this
da\ of A. I). 18 [To b s signed, &c. by two justices.]
In actions"for assaults, and assaults and batteries, the defend-
ant may justify, qr rather excuse himself, by showing that the
same was occasioned by the original assault of the plaintiff. In
courts of record this defence must be pleaded; but before a jus-
tico of the peace, it is only necessary to prove it on the trial.—
But the battery must bear something like a due proportion to
the assault. Therefore, every assault will not justify every bat-
lory. A man will not be justified or excused in using any dan-
gerous weapon to repel the assault of a man of nearly equal
strength with himself, who makes no offer or attempt to use any
other than his natural weapons, viz. his hands, feet, &c.
Form of a judgment for an assault and battery in favor of the plain-
(if.—uAt, &c. on, &c. the parties being present, and the war-
rant being read to and heard by the defendant, he says he is
thereof not guilty; and the evidence on both sides being heard
and fully understood: It is therefore considered by us, that the said
defendant is guilty of the assault and battery aforesaid, that the
said plaintiff sustained damage to the amount of seventeen dollars
and fifty cents, and that the plaintiff recover of the said defend-
ant, for said offence, the said sum of seventeen dollars and fifty
92
CIVIL DIVISION.
cents, and a?ll cost in this behalf accrued, for which execution
may issue.
Form of a judgment for a defendant on the ground of the original
assault having been made by the plaintiff.—"At, &c. on, &c. the
parties appearing and being present, and the warrant being read
to and heard by the said defendant, he says the plaintiff his ac-
tion against him ought not to have and maintain, because he
says that the said assault and battery complained of, was occa-
sioned by the original assault of the said plaintiff; and the evi-
dence on both sides being heard and fully understood: It is con-
sidered by us, that the said plaintiff made the first assault, which
produced the battery of the said defendant, in his own proper
defence, and that there was a due proportion between the origi-
nal assault and the subsequent battery, and that in consequence
of all which the defendant is to go hence without day, and re-
cover of the plaintiff all cost about his defence in this behalf ex-
pended,for which an execution may issue," &c.
Form of a judgment for plaintiff for a false imprisonment.—At,
&c. on, &c. the parties being present, and the warrant being
read to and heard by the said defendant, he says he is thereof
not guilty; and the evidence on both sides being heard and fully
understood: It is therefore considered by us, that the defendant
did falsely and unlawfully imprison the said plaintiff, and that
said plaintiff hath been damaged to the amount of twenty dol-
lars, and that in consequence thereof the plaintiff recover of the
said defendant the said sum of twenty dollars, and all* cost in
this behalf accrued, for which an execution may issue," &c.
Where the defendant acted as a ministerial officer, as a sher-
iff, coroner, or constable, under a lawful precept, he ought to say
on the trial that he is not guilty of the assault and battery, that
he only laid his hands lightly on the plaintiff, as it was lawful
for him to do, in arresting the said plaintiff by virtue of a law-
ful precept; and he ought to produce the precept, to the end
that the justices may see that it was issued by a proper tribunal,
and that on its face it was a regular authority for him to make
the arrest,
Judgment for the defendant where the plaintiff was taken by lawful
process.—"At, &c. the parties appearing, and the warrant being
read to and heard by the defendant, he says, he is not guilty of
ACTIONS OF DEBT TRESPASS.
03
the assault and battery, and that lie only laid his hands lightly
on the plaintiff, a? lie lawfully might do, in arresting the said
plaintiff under lawful process, and that the said plaintiff was re-
t.lined in custody of the said defendant [or in jail, as the case
may he.] by virtue of the precept here shown, as it was lawful
to do: and the evidence on both sides being heard and fully un-
drrdood: It is therefore considered by us, that the said defend-
ant did arre-t and detain in custody the said plaintiff, as it was
lawful lbr him to do under proper process, and that he used no
unnece—ary force in arresting the said plaintiff, consequently he
is not uuihy of the assault and battery, and that he was justified in
the imprisonment, and that he go hence without day, and re-
cover of the said plaintiff all cost about his defence in this be-
half accrued, for which execution may issue."
What we have said under this head, relates only to injuries
done the person and personal property of the plaintiff; it now
de\oho on us to say something about trespasses on real pro-
perfy.
Tin c n< ml nature of the action.—Every entry upon the land of
another without his consent, is, strictly, an injury, [3 Black. Com.
30!)] and at least docs the mischief complained of in the old
form of the writ, that of treading and beating down the plain-
tiff's grass: for such an injury, therefore, this action lies. But,
however, in certain cases the law has given a right of entry up-
on the lands of another, [ibid] as if an officer comes to execute
law fill process, or a man comes to demand money, ask the ac-
ceptance of a bill, to give notice to a drawer or endorser, to de-
mand specific articles, or to give notice where to pay and deliv-
er them under our property law; a landlord to enter on the pre-
mi-eN of his lessee to see if damage be done; or a reversioner to
see that no waste is committed; a traveller to get refreshments
at an inn. All these are cases where the law allows an entry,
and so the entry is not a trespass, unless made so subsequently.—
But where the law allows such entry, or any act to be done, if
the per-on misdemeans himself, or makes an unlawful use of his
authority, he shall be held to be a trespasser from the beginning:
for from the subsequent act the law judges with what mind the.
first entry was made; as if a person enters into a tavern, which
every man has a right to do; yet if he steals or takes anything
CIVIL DIVISION.
from thence, his first entry shall be deemed unlawful, and he a
trespasser from the beginning. 8 Co. 146.
Trespass, with force and arms, always, either to personal or re-
al estate, supposes a misfeasance; for it will not lie for a bare
non-feasance, "which, as it supposes no act, carries no trespass:"
as if a man enter a tavern and steal any thing, he is a trespasser
from the beginning for the misfeasance, but for not paying for
his wine, &c. no action of trespass lies.
To constitute a trespass for which the action is maintainable,
the act must be voluntary, and with some degree of fault; for if
done involuntarily and without fault, no action of trespass lies:
as where the plaintiff's sheep were trespassing on the defend-
ant's ground, the defendant chased them off with a dog, which
dog had followed them into the plaintiff's own ground, for
which the action was brought, but was held not to lie ; for
the defendant might justify chasing the sheep off his own ground,
and as the dog could not be suddenly called in, the trespass and
injury were involuntary, it appearing the defendant had called
the dog in as soon as he was off Ms ground. Esp. N. P. 383.
The action of trespass qucere clausum fregit, or for breaking the
plaintiff's close, is only maintainable by him who hath the pos-
session. Possession is of two kinds, actual or constructive. Actual
possession is where a person is living upon, or cultivating, or
using the land himself. This possession is co-extensive with
the bounds of his grant or deed, if no other person is adversely
possessed when he takes possession of the land. But if there
is an adverse possession for part of the land when he enters
upon it, his possession does not extend to that part; he must re-
sort to the law to determine the rights of the parties, before
he can exercise an ownership over it.
A constructive possession is where a man hath the title and
right of entry to the land, and no one is in the actual possession
of the same. The law supposes the possession in the owner, so
as to enable him to maintain an action of trespass for breaking
and entering the plaintiff's close and felling timber, or for do-
ing any other unlawful act or thing.
If a trespass is committed upon the premises of a lessee or
tenant, such lessee or tenant is the person to institute or main-
tain the action. The landlord hath no more right to the posses-
ACTIONS OF DEBT—TRESPASS.
95
sion than a'stranger until the expiration of the lease or tenancy.
And when a defendant shall attempt to show the freehold in
himself, or another, by whose license or authority he enters,
the tenant or lessee may exert his landlord's title in support of
his possession, to the full extent he could do, had he the title vest-
ed in himself.
Form of a warrant for breaking and entering the plaintiffs close.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,^ return.
You are hereby commanded to summon A B to appear before
us, or any other two justices of the peace for said county, to an-
swer the complaint ofC D, of a plea of trespass, wherefore with
force and arms he broke and entered the plaintiff's close, and
fell and cut his timber trees, and treading and beating down his
grass, to the damage of the said plaintiff twenty dollars. Herein
fail not. Given under our hands and seals, this day of
A. D. 18 [To be signed and sealed officially by two justices.]
The plaintiff on the trial must prove the possession, either ac-
tual or constructive, in himself at the time the trespass was com-
mitled; also the nature and extent of the injury done by break-
ing the plaintiff's close.
The word close does not only include all walls, fences, palings,
and the like, but also the lines and boundaries of a man's tract
of land; therefore, a. man maybe said to have broken and enter-
ed your close, whenever he has crossed the boundary line of
your tract of land.
Form of the judgment for the plaintiff.—"At, &c. on, &c, the
parties being present, and the warrant being read to and heard
by the defendant, he says he is thereof not guilty; and the evi-
dence on both sides being heard and fully understood: It is con-
sidered by us, that the defendant did break and enter the close
of the said plaintiff, and did cut and fall his timber trees, and
tread and beat down his grass, and did injure and damage the
said plaintiff the sum of eleven dollars"; by reason whereof,
the said plaintiff is to recover of the said defendant the sum of
eleven dollars for his damage aforesaid, and all cost in this be-
half accrued, for which an execution may issue."
The form of a judgment for a defendant upon not guilty, and
upon the ground of the freehold being in himself, is in substance
96
CIVIL DIVISION.
the same; for where a man enters by virtue of his own freehold,
he does not break the close of another.
Judgment for the defendant upon not guilty,—"At, &c. on, &c.
the parties being present, and the warrant being read to and
heard by the defendant, be says he is thereof not guilty; and
the evidence on both sides being heard and fully understood: It
is considered by us, that the defendant is not guilty as charged in
the warrant, and that he go hence without day, and recover of
the said plaintiff the cost about his defence in this behalf accru-
ed, for which an execution may issue," &c.
Where there has been more than one entry into the lands of
the plaintiff, the offence should be laid in the warrant with a
continuando; i.e. from such a day to such a day,inclusive.
All these acts of injury should be laid in the warrant, unless
of such a nature that decency would forbid to mention them;
such should not be placed upon the face of the record. For sucli
immoral and indecent acts the warrant ought to contain the
words, "and other enormities did commit."
The evidence necessary to support or defeat the action, would
be always pretty generally correctly drawn from the law as sta-
ted in relation to this species of action; but as there are some
matters of evidence not perceivable from the law as stated, I
here call the reader's attention to the following, viz.
That whenever any injury would be aground of action itself,
no evidence can be given of it unless mentioned in the warrant,
because the defendant would be taken by surprise: as the thing
is not stated in the warrant, the defendant has no notice of it, and
could not be presumed to be prepared with proof to show how
the true state of the fact may be. But if the thing itself will
not bear an action, it may be given in evidence by way of en-
hancing the damages under "other enormities." The defendant
may show a better title in himself than the one under which the
plaintiff claims, where the injury charged against him is only
done to the soil, or things attached thereto. But better title will
avail nothing, where the principal injury is the hurting or taking
away any personal goods or chattels. The question in such case
is not who has the best title to the land, but who had the title to
the chattel hurt or taken away.
Where the chief injury is done to personal property, the
ACTIONS OF DEBT TRESPASS.
97
plaintiff upon the trial must prove property, as well as posses-
sion in himself. Property in personals is of two kinds, general
and qualified. General property is where the absolute right is
united with the possession in the same person. Qualified prop-
crty is where a man hath the possession, and a right to the use
for a limited time; but a mere naked possessor may maintain an
action of trespass or trover against a mere wrong-doer.
The defendant may show that the plaintiff and himself had
settled the matter by accord, and that he had satisfied the plain-
tiff for the whole injury complained of. But where the action
is brought to recover the value of any property taken under an
execution by a sheriff or constable, and the breaking of the close
is merely used to give name and form to the action, I would, in
place of trespass, always advise trover or detinue, as in these
last actions you would not be encumbered with the question
about lines and land, but would be trying the simple question of
the right to the personal property. But, however, if trespass is
brought against such officer, before he can place himself in the
shoe of a creditor, he must on the trial produce and show the au-
thority under which he acted, because it is not the office of sheriff
or constable that relieves from the trespass, but the Writ under
which he acted. It is said by some, that the officer shall be
compelled to produce the judgment, as well as the writ of ex-
ecution. I would here ask, cui bono, for whose good is this to
be done? The officer is bound to execute the process, if it is reg-
ular in its face and has issued from a tribunal having jurisdic-
tion over the subject-matter. Will he then be required to ex-
ecute a writ that will not justify him? If not, there is then no
reason for requiring the officer to produce the judgment. I have
always believed, and yet believe, that the decisions which re-
quired the officer to produce the judgment as well as the exe-
cution, were founded in error and not on the law. There is no
reason for it, as before stated, and it is an ancient and well-set-
tied maxim, that when the reason of the law ceases, the law it-
self ceases.
What reason would there be, I would humbly ask, to require
an officer into whose hands you would place a writ of execution,
to go to the justice's office, (if the writ issued from one) in the most
remote part of your county, to see whether the judgment was
N
98
CIVIL DIVISION,
correct, before he could make his levy? or would you require
your sheriff to go to the remotest part of the state from whence
a writ of execution came, to ascertain whether the judgment
was a good, effectual one, or not? or would you require the sher-
iff or constable, before he would make a levy on an execution,
issued by a justice of the peace upon one which came certified
1804 c 9 83 aS re(lu^re(^ ky act of assembly, from the remotest
part of the State, to go and hunt up the judgment,
and see whether it was a good and effectual one, or not? If such
a course would or could by possibility be required, wretched
would be the condition of a ministerial officer indeed. The
very propounding of these questions is enough to prove that such
cannot be the law. For myself, I am sure it is not the law.
Courts possess no power to make the law; they can only de«
clare what the law is, and a judicial opinion is only an evidence
of what the ancient or modern law is; and where such opinion
is not predicated on a positive statute requiring such a determina-
tion, and it shall be found to be contrary to reason and common
sense, it is pretty evident that such decision is not founded on
the law.
But the writ of execution is always within the officer's reach;
it is therefore right that he should be required to produce it and
prove it by the justice of the peace who issued it, if alive and
in the State; but if he be dead, or beyond the limits of the
State, then prove the hand-writing of the justice of the peace;
or if the execution issued from a court of record, by a regularly
certified transcript of the cause containing such execution. The
officer is then in a situation to show that the property was only
colorably held by the plaintiff to hinder, delay, or defeat credi-
tors.
But where the judgment creditor accompanies the officer to
make the levy, and purchases the property at the sale, and suit
is brought against him and the officer as joint trespassers, in such
case it is reasonable that the creditor should be bound to produce
his judgment," as well as the officer his execution. And in ac-
tions of trover and detinue it may be right always, where the
suit is against the purchaser, to require of him the production of
the judgment as well as the execution. When these are produ-
ced, the defendants have the right to show that the plaintiff's
actions op debt trover.
99
claim was a mere fraudulent pretence to cover and hide the
property from the bona Jidc creditors of the defendant in the ex-
crution. If fraud is alleged, it must be proved and not presu-
med, because such a course would be at variance with that valu-
able rule of law which holds all men as honest until the re-
verse is made appear. By a statute of our State, ^ ^
"Every gift, grant, conveyance of lands, tenements, he-
reditament«, goods, or chattels, or any rent, common or profit out
of the same, by writing, or otherwise, and every bond, suit, judg-
mrnt, or execution, had, made, or contrived, of malice, fraud,
co\ in, collusion or guile, to the intent or purpose to delay, hinder
or defraud creditors of their just and lawful actions, suits, debts,
accounts, damages, penalties, or forfeitures, &c. shall be clearly
and utterly void; any pretence, color, feigned consideration ex-
pressing of use, or any other matter or thing to the contrary not-
withstanding."
I next call your attention to what I think is the best mode of
proceeding for the recovery of damages for any articles of per-
sonal property which by any means have got into the possession
of another, and he refuses to deliver them to their owner, &c.—
It is the action of trover. Trover is a French word, and signi-
fies to find. The action of trover and conversion was, in itsori-
gin, an action of trespass upon the case for recovering *of dam-
ages against such person as had found another's goods and re-
fused to deliver them on demand, but converted them to his own
use, from which finding and converting it is called an action of
trover and conversion. 3 Black. 151.
By a fiction of law, actions of trover are now permitted to be
brought against a person who hath got into his possession by any
means whatever the goods of another, and sold them, or used
them, without the consent of the owner, or refused to deliver
them when demanded. The injury lies in the conversion; for
it is lawful for any man to find, but no man has a right to con-
vert the thing found to his own use, when the owner is known.
Form of a warrant in trover for seven head of hogs.
"State of Tennessee,! ss.—To any lawful officer to execute and
county,5 return: '
You are hereby commanded to summon A B to appear before
us, or some other two justices of the peace for said county, to an-
100
CIVIL DIVISION.
swer the complaint of C D, of a plea of trespass on the case, for
finding seven hogs, the property of the said plaintiff, and refu-
sing to deliver them to the said plaintiff, although often requested
so to do, hut the said defendant well knowing said seven hogs
of right to belong to the said plaintiff, has converted them to his
own use, to the damage of the said plaintiff twenty dollars.-—
Herein fail not. Given under our hands and seals, this day of
A.D.18 ." [To be signed, &c. by two justices.]
To maintain the action of trover, the plaintiff must have a
general or a qualified property in the thing or things, the conver-
sion of which he complains. A general property is where .the
absolute right is united with the possession in the same person.
A qualified property is where a man hath the possession andjt
right to the use of the thing for a limited time; but a mere na-
ked possessor may maintain this^ action against a wrong-doer.
Where goods are levied upon by a sheriff, under a fieri facias,
he may maintain this action against any person for taking and
converting them to his own use, 1 Lov. 282.
So a carrier may maintain trover for goods entrusted to him
to carry, which have been taken out of his possession. 1 Mod. 31.
So if a house let for years be blown down, the lessee may
have trover for the timber, though the property be in the rever-
sioner. Bull. N. P. 33.
So if a man have an estray posted, the estray is not absolute-
ly his until the expiration of the year from the appraisement;
yet he may maintain an action of trover against any one but
the true owner, for taking and converting such estray to his own
use. Sir Wm. Courtney's case, Bull. N. P. 33.
So where a man borrowed a horse to perform a certain jour-
ney, and he got into the possession of another person, who re-
fused to give him up when demanded, such borrower may main-
tain trover for the horse,
There are many cases where the owner has parted with the
possession of his property by contract, and still may maintain
his action of trover to recover their value: as where A went to
B to purchase a horse, and the price was agreed upon to be
paid in ready money, and A paid B in counterfeit bank bills,
knowing them to be such; trover will lay to recover the value of
the horse, as the property was not parted with in consequence of
actions .op debt trover.
101
the fraud. Fraud vitiates all contracts in which it forms a ma-
terial part.
Trover lies to recover the value of any personal property
which has by any means got into the possession of another, un-
less by a fair and bona Jide contract.
It will lie to recover store goods sold by a merchant to a man
who personates another; though the possession is parted with, it
is through fraud, and therefore void, which leaves the property
with the owner, and the possession with the false purchaser.
So where the plaintiff left jewels sealed up with his banker
for safe custody, and the banker broke open the seal and pawned
them to the defendant, the action of trover was held well to lie,
as the pawning was no sale in market overt. Horlop vs. Hoare,
1 Wils. 8. 2'Stra. 1187. [Note.—We have no markets overt"or
covert in this country, where a registry is kept and things sold
regularly enrolled.]
So where the plaintiff gave lottery tickets tQ a goldsmith to
receive the money for him, and the goldsmith delivered the tickets
to the defendant in discharge of his own note for lottery tickets
due and owing the defendant, trover brought by the plaintiff for
the recovery of the value will lie. Ford vs. Hopkins, Salk. 283.
So where C loaned a horse to M, to use for a certain purpose,
M sold the horse to TI, who swapped or exchanged the horse to
S; C brought trover against S for the value of the horse, and
recovered by the decision of our own supreme court.
Trover w ill lie acainst the master for goods which were de-
livered to the servant, if they came to the master's possession.
Trover will lie against husband and wife for a conversion by
the wife before marriage.
So husband and wife may maintain trover for a conversion of
the wife's goods while sole.
So an executor or administrator may maintain trover for a
conversion of his testator or intestate's goods in his lifetime; and
trover is the proper remedy against an executor of his own
wrong, by an administrator or legal executor. Rutland vs. Rut-
land, Cro. Eliz. 377.
Trover lies to recover the value of property lost at any game
of hazard or address, or any horse or foot race.
An administrator may maintain trover against a person for ta*
102
CIVIL DIVISION.
king the goods of his intestate, after the death of the intestate,
and before the granting of letters of administration, as the letters
relate back to the death. Long vs. Hebb, Style, 341.
So for a taking in the lifetime of the testator, or intestate,
though the conversion should not take place until after their
death. Stra. 60.
Where the taking of the goods has been wrongful, an actual
conversion to the party's own use is not necessary to maintain
the action; but where the property came into the hands of the
defendant in an honest and peaceable manner, the plaintiff
must, at the trial, prove an actual conversion, or a demand up.
on the defendant, and a refusal by him to deliver the goods.—
A refusal is an evidence of a conversion.
It is not material by what means the property came into the
hands of the defendant; for by the fiction of the law, the defend-
ant is supposed to have found them; and the form of the action
will be the same: the declaration, or warrant, will always allege
that he found them.
I will give a few forms more of warrants, and some judgments,
and then dismiss this subject, with a confident belief that no one
can err in the discharge of his duty under this head, if he will
only be at the trouble to read what I have said.
But before I proceed to the forms of the warrants and judg-
ments spoken of, I will insert the 4th section of the act of 1799,
1799 3 wkich is in the words following, viz. "If any person
or persons, shall lose any money, or other valua-
4>le thing, at or upon any game of address or of hazard, or on
Tiorse-racing, or on any other play or game whatsoever, and shall
pay or deliver the same, or any part thereof, the person or per-
•sons so losing and paying or delivering the same, shall have a
right within ninety days then next, or thereafter, to sue for and
recover the money or goods so lost and paid, or delivered, or any
part thereof, from the respective winner or winners thereof, with
cost of suit, by action of debt, or case, for the value of the mo-
aiey, or thing so lost, founded on this act, to be prosecuted in any
court of record having cognizance thereof, or before any justice
of the peoce, if the sum so won is under twenty dollars, subject,
nevertheless,"to an appeal, as in all other cases; and in which
action it shall be sufficient for the plaintiff, or plaintiffs, to al-
ACTIONS OF DEBT TROVER.
103
lege that the defendant, or defendants, is or are indebted to him,
her or them, or hath or have received to his, her or their use; the
money so lost and paid, or converted the goods so won of him,
her or them, to the use of the defendant, or defendants, whereby
the action of the plaintiff, or plaintiffs, accrued' to him, her or
them, according to the form of this act."
Form of a warrant by a sheriff or constable, against a person who
has the property levied on in his possession.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,} return:
You are hereby commanded to summon A B to appear before
us, or some other two justices of the peace for said county, to an-
ewer the complaint of C D, of a plea of trespass on the case,
for finding a bed and furniture, (levied on by the plaintiff as the
property of I J,) and refusing to deliver the same to the said
plaintiff, although often requested so to do; and the said defend-
ant, well knowing the said bed and furniture of right to belong
to the said plaintiff, has converted them to his own use, to the
plaintiffs damage twenty dollars. Herein fail not. Given un-
dor our hands and seals, this day of A. D. 18 ."
[To be signed, &c. by two justices.]
Form of a judgment upon the last warrant, and which will suit the
first warrant also.—"At, &c. on, &c. the parties being present, and
the warrant being read to and heard by the defendant, he says
he is not guilty of the trover and conversion, as therein charged;
and the evidence on both sides being heard and fully understood:
It is therefore considered by us, thatthe plaintiff had a qualified
property in said bed and furniture, and that the defendant was
guilty of a wrong in the taking of the same, and that the said
plaintiff has sustained damages by reason of the trover and con-
version of the said bed and furniture, to the sum of seventeen
dollars and fifty cents, and that the plaintiff recover of the said
defendant the said sum of seventeen dollars and fifty cents, and
all cost in this behalf accrued, for which an execution may is-
sue."
101
CIVIL DIVISION.
Form of a warrant by a husband and wife to recover the value of
goods, the property of the wife when sole, and which zoere converted
by the defendant while the wife was sole.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon A B to appear before
us, or some other two justices of the peace for said county, to an*
swer the complaint of C D, and E D, his wife, late E K, of a
plea of trespass on the case, for finding two cows, the property
of the said E K, and refusing to deliver them to the said E K
while sole, although often requested so to do, but the said de-
fendant well knowing said two cows of right to belong to the
said E K while sole, converted them to his own use, while
the said E K was sole, yet the said defendant did not pay and
satisfy the said E K, while sole, nor the said C D and E D
since marriage, for said two cows, to their damage twenty dol-
lars. Herein fail not. Given under our hands and seals, this
day of A. D. 18 [To be signed, &c. by two
justices.]
Form of a judgment upon the last warrant.—"At, &c. on, Ac.
the parties being present, and the warrant being read to and
heard by the defendant, he says he is not guilty of the trover
and conversion, as charged in said warrant; and the evidence
on both sides being heard and fully understood: It is considered
by us, that the said two cows were the property of the said E
K while sole, and the defendant was guilty of a wropg in ta-
king the said two cows; that he converted them to hlf own use
while the said E was a single woman; that since that time the
said E K has intermarried with the said C D; that in conse-
quence of said trover and conversion, the said E K sustained
damage to the sum of nineteen dollars, while sole; and there-
fore, that the plaintiffs recover of the said defendant the said
sum of nineteen dollars,* and all cost in, this behalf accrued, for
which an execution may issue."
A warrant for an executor against one who converted certain goods of
the testator in his life-time.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,y return:
You are hereby commanded to summon A B to appear before
ACTIONS OP DEBT—-TROVER.
105
us, or some other two justices of the peace for said county, to an-
swer the complaint of C D, executor of the last will and testa-
ment of E F, of a plea of trespass on the case, for finding twelve
bushels of wheat, the property of the said E F, in his lifetime,
and refusing to deliver them to the said E F, in his lifetime, al-
though often requested so to do; but the said defendant, well
knowing the said twelve bushels of wheat of right to belong to
the said E F, converted the said wheat to his own use, in the
lifetime of the said E F, to the damage of the said E F, in his
lifetime, twenty dollars, and detained from said plaintiff. Here-
in fail not. Given under our hands and seals, this day of
A.D. 18 [To be signed, &c. by two justices.}
Form of a judgment upon the last warrant.—"At, &c. on, &c.
the parties appearing, and the warrant being read to and heard
by the defendant, he says he is not guilty of the trover and con-
version as therein charged; and the evidence on both sides be-
ing heard and fully understood: It is considered by us, that the
said twelve bushels of wheat were the properly of the said E F,
in his lifetime, and that the same were demanded of the said de-
fendant, and he refused to deliver the said wheat to the said
E F, although often requested so to do, in the lifetime of the said
E F; that the said defendant converted the said twelve bushels of
wheat to his own use, in the lifetime of the said E F; that the
said E F departed this life since said conversion; that the said
plaintiff is the regularly qualified executor of the last will and
testament of the said E F, deceased; that in consequence of such
trover and conversion, the said E F, in his lifetime, sustained
dam,age to the amount of ten dollars and fifty cents; and there-
fore, that the plaintiff recover of the said defendant the said
sum of ten dollars and fifty cents, and all cost in this behalf ac-
crued, for which an execution may issue."
Form of a warrant by a person who delivered to the defendant fif-
teed sheep won of him on a horse-race.
"State of T ennessee,) ss.—To any lawful officer to execute and
county,) ' return:
You are hereby commanded to summon A B to appear before
us, or some other two justices of the peace for said county, to an-
swer the complaint of C D, of a plea of trespass on the case for
finding fifteen head of sheep, the property of the plaintiff, and
O
106
CIVIL DIVISION.
refusing to deliver them to the said plaintiff, although often re-
quested so to do; but the said defendant, well knowing the said
fifteen head of sheep of right to belong to the said plaintiff, has,
within the last ninety days, converted them to his own use, to
the damage of the plaintiff twenty dollars. Herein fail not—
Given under our hands and seals, this day of A. D.
18 [To be signed, &c. by two justices.]
Form of a judgment upon the last warrant.—"At, &c. on, &c.
the parties being present, and the warrant being read to and
heard by the said defendant, he says he is not guilty of the tro-
ver and conversion therein charged against him; and the evi-
dence on both sides being heard and fully understood: It is con-
sidered by us, that the said fifteen sheep were the property of
the plaintiff, and that the said defendant got the said fifteen
sheep wrongfully into his possession, by winning them upon a
horse-race; and being so thereof possessed of said fifteen sheep,
within the last ninety days, he, the said defendant, converted
them to his own use and service; that in consequence of such
trover and conversion, the said plaintiff has sustained damage to
the amount of twenty dollars; and therefore that the plaintiff
recover of the said defendant, the said sum of twenty dollars,
and all cost in this behalf accrued, for which an execution may
issue."
When the action is not instituted within ninety days from the
time of the delivery of the property won, that fact may be reli-
ed upon and given in evidence on the trial; then the judgment
must be for the defendant, of the following form:
"At, &c. on, &c. the parties being present, and the warrant
being read to and heard by the said defendant, he says he is not
guilty of the trover and conversion, as therein charged, within
ninety days immediately before the issuance of the warrant; and
the evidence on both sides being heard and fully understood: It
is considsred by us, that the said defendant has not converted the
said fifteen head of sheep to his own use and service within nine-
ty days immediately preceding the issuance, of the warrrant in
this cause; therefore, that the said defendant go hence without
day, and recover of the said plaintiff the cost about his defence
in this behalf accrued, for which an execution may issue."
actions OF debt detinue.
107
The action of detinue is in many respects nearly allied to the
action of trover. The detention is the injury chiefly complain-
td of. It mattercth not much how or by what means the prop-
crty came into the hands of the defendant; the principal enquiry
will always be, does the defendant unlawfully detain such pro-
perty? To maintain this action, the plaintiff must, as in an ac-
tion of trover, prove a general or qualified property in himself,
and that defendant unlawfully detains such property. The oh-
ject of this action is to regain the possession of the thing itself,
and d.images for the detention thereof; consequently, the dam-
age-, ought always to be such, for the value of the thing, as would
induce the defendant to deliver up the thing, rather than pay
such extravagant damages for it; but the damages for the deten-
tion of the thing must be paid at all events, whether the defend-
ant gives up the thing in satisfaction of the judgment, or not.
Form of a zvarrant in detinue.
"State of Tt •nnessee,) s?.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A E to appear before
u«, or some other two justices of the peace for said county, to an-
sttcr the complaint of C D, of a plea of wrongfully detaining
three head of hogs, to the value of five dollars each, of the pro-
per goods and chattels of the said plaintiff, to his damage twen-
ty dollars. II erein fail not. Given under our hands and seals, *
this day of A. D. 18 [To be signed, &c. by two
justices.]
Form of the. judgment.—"At, &c. 011, &c. the parties appear-
jng, and the warrant being read to and heard by the defendant,
he sajs he docs not detain said three hogs, as charged in said
warrant; and the evidence on both sides being heard and fully
understood: It is considered by us, that the said defendant has
detained, and still doth detain, the said three hogs wrongfully;
that they are the property of the plaintiff; that the said plaintiff
hath sustained two dollars damage, for the unlawful detention
of said three hogs, and that said three hogs are of the value of
eighteen dollars; and, therefore, that the said plaintiff recover
the said sum of two dollars for damages, as aforesaid, and the
said sum of eighteen dollars, the value of said three hogs, which
may be discharged by the re-delivery of said three bogs to the
108
civil division.
said plaintiff, and all cost in this behalf accrued, for which an
execution may issue."
This form of the warrant and judgment in detinue, will suit
all cases, with a little variation, where the judgment will be for
the plaintiff.
Form of a judgment for a defendant.—"At, &c. on, &c. the
parties being present, and the warrant being read to and
heard by the defendant, he says he has not, nor does he now, de-
tain the said three hogs, as charged in the warrant; and thetes-
timony on both sides being heard and fully understood: It is
considered by us, that the said defendant docs not unlawfully
detain said three hogs; therefore, that he go hence without day,
and recover of the said plaintiff the cost about his defence in
this behalf expended, for which an execution may issue."
Actions of detinue will not be of frequent occurrence before
a justice of the peace; trover will be used most always, as the
identity of the property in trover has not to be so clearly proved
as in detinue.
Trespass on the Case is an action brought for the recovery of
damages, for acts unaccompanied with force, and which in their
consequences only are injurious; for though an act may be in
itself lawful, yet, if in its effects or consequences it is productive
of any injury to another, it subjects the party causing it to this
action.
As where the defendant put up a spout on his own premi-
ses (this was an act lawful in itself) that conveyed the water
into the yard of the plaintiff, and which produced an injury to
him, the action on the case was held well to lie, for the injury
which followed from the doing of a lawful act. Knight vs. Boarne,
1 Strange, 334. No man is permitted to exercise his own rights
in such a way as will operate injuriously to his neighbors.
Many cases might be adduced in illustration of the above
rule, but I will instance but two or three: 1st. Where a man is
the owner of a tract of land lying on a stream below you, and
erects a dam across said stream, on his own land, for the purpose
of conveying the water to mill or other machinery, and the dam
flows the water back insomuch that your land is overflowed and
injured, an action upon the case will lie to recover damages for
the injury done to your premises. 2d. Where a man is the
ACTIONS OF DEBT CASE.
109
owner of the land above you, upon a small stream that runs
through your land, and he should erect a dam across the stream
for the purpose of turning it into a ditch leading to a mill, and
which would divert the water entirely from your land, an action
upon the case for the recovery of damages would well lie for
you, tfcc.
OF THE GENERAL NATURE OF THE ACTION.
1. **It is not necessary, to maintain this action, that the injury '
^hich the plainfilF has sustained, has arisen from the act of the
defendant; for the action equally lies where the injury has been
caused by the neglect or culpable omission of any duty it was
incumbent on the defendant to perform;" as where one retains
an attorney to conduct his suit, and, in consequence of any neg-
lect, the party suffers any loss, this action lies against the at-
torney for such neglect.
So, if the defendant is bound to keep a bridge or a ferry-boat
in repair, as every one is bound to do who takes toll for passing
by the same, and in consequence of leaving either out of repair
the plaintiffs waggon and horses become injured, this action lies
to recover damages.
So, if the defendant have a house to repair, and neglects to
do so, by reason of which the joist gave way, and let the plain-
fifh with his family and furniture, fall into the cellar, by which
one of the plaintiff's children and his furniture was much in-
jured.
So, if the defendant be an innkeeper, and leaves the floor of
his common hall (or any other room) in such bad repair that the
plaintiff walking over the same, fell through and broke his arm.
So, if the defendant have a ditch on his land, for his own
accommodation, adjoining the land of the plaintiff, and leave it
so foul that the water will not run, whereby the plaintiff's land
is overflowed, this action lies for such culpable omission. Hale
on F. N. B. G'27.
"But in order to charge a person in this action for any neg-
lect, the law must have imposed a duty upon him, so as to make
that neglect culpable;" as if a person finds any thing, he is not
under any obligation to keep it safely; therefore, where a man
finds any thing, and it is spoiled while in his possession, yet no
no
CIVIL DIVISION.
action lies, for there was no duty by law on him to apply any
decree of care. Mulgrove vs. Alistree, Crc. Eliz. '219.
It is no excuse for a defendant, in this action, that the injury
was iuvoin'ntary on his part; for if any damage is caused to an*
other, from the folly or want of due care and caution in such de-
fendant, this action lies. As if the defendant brings an unruly
horse to break in the public road, public streets, or alleys of a
town, or the like, though he intended no injury to any person,
yet if the horse kick, or run over or against a person, whereby
he is hurt, he shall have this action; for it was folly and want of
care to bring the horse into such a place for such a purpose.—.
Michael vs. Alistree, 2 Lev. 72.
Neither is it any excuse for an unlawful act, that by proper
attention the person who receives the injury might have avoid-
ed it. As if a man lay logs of wood across the highway, through
which, by proper care, a person might ride with safety, yet if
the horse stumbles over the logs, and the person be thrown, or
the horse injured, he may recover damages in this action for the
injury sustained. Fowler vs. Maunders, Cro. Jac? 446.
It is a characteristic feature of this action, that any person
employing another in any office, or station, or employment, is an-
swerable for his misconduct, or neglect, or for any injury he may
occasion; therefore, a master shall answer for the misconduct of
his apprentice, or his slave; so shall a father for the misconduct
or neglect of his son under age, who resides with him. As
where a servant was driving his cart along the road, ran it
against the cart of the plaintiff, which had in it a pipe of wine,
and overset the plaintiff's cart and spilt his wine, this action
was held well to lie against the master. Jarvis vs. Hayes, 2 Str.
1001.
If a person undertake the euro of a wound or disease, and
by neglect or ignorance the party is not cured, or is injured ma-
terially in his health, he may recover damages in this action;
but the person so undertaking must be a common physician or
surgeon, or one who makes a public profession of such business
of a surgeon, physician, apothecary, &c. for Otherwise it was the
plaintiff's own folly to trust to an unskilful person, unless such
person expressly undertake the cure. Dr. Groevnett's case, 2 Ld.
Raym. 211.
ACTIONS OP DEBT CASE. Hi
For on this ground an actiortswas adjudged to lie against the
surgeon for breaking the callous of the plaintiff's leg, after it
had been set; it appearing that it had been done unskilfully
and out of the common course of practice, and for the sake of
making an experiment with a new instfument. Slater vs. Baker,
2 wik m
if any person keep a dog used to bite, or a bull used to hook
and gore, and he let them go at large, and the dog bite, or the
bull hook a person, this action lies against the owner to recover
damages; provided the owner has notice of the dog being used
to bite, or the bull to hook. 1 Ld. Raym. 606.
But where the injury from an animal arises from the plaintiff's
misconduct, and want of care, the action will not lie against the
owner. As where a carpenter kept a dog to guard his yard; in
tlx' day-time he would keep him chained, but he would let him
Inn*. • at night, and the plaintiff went into the yard at night, after
it had been shut, and received the injury. Lord Kenyon ruled,
that tvcr}' man had a right to keep a dog for the protection of
hh property, and the injury having arisen from the plaintiff's
own fault in going into the yard after the dog had been proper-
ly let loose, the action would not lie. Brooks vs. Copeland, Esp.
N. P. 2on.
An action will lie against the owner of a dog accustomed to
kill sheep, if he have notice thereof, for an act of killing after
notice.
This action lies against a sheriff or constable, for an escape
of a person apprehended upon a writ or bail-warrant, in- a civil
cauM'.
Before we speak of an escape, it is necessary to understand
what an apprehension or legal arrest is.
Bare words will not make an arrest. There must be an ac-
tual laying on of the hands, a touching of the body, or, what is
tantamount, a power of taking immediate possession and control
of the body, and the party's submission thereto; therefore, in
the case where the officer said to the defendant, against whom
he had the writ, he being then at some distance, that he arrest-
od him by a warrant he had against him, and the defendant
having a pitchfork in his hand, kept the officer at a distance
ii2
CIVIL DIVISION.
until he retreated into the house, it was held to he no arrest.—
Gunner vs. Sparks, 1 Salk. 79.
The arrest must be made by virtue of the writ or bail war.
rant.
It is not lawful to break open the doors of a house to make
an arrest in any civil case, for the law will not allow such breach
of the peace. Semaine's case, Salk. 60, 92.
Therefore, where the bailiffs rapt at the door, and on its being
opened to see who was there, rushed forcibly in, with drawn
swords in their hands, the entry and arrest were both held to be
unlawful. Park vs. Evans, Hob. 6*2.
An arrest on the sabbath day is not only voidable, but abso-
lutely void; and the party arrested may have an action of false
imprisonment for such arrest. Parker vs. Moore, Salk. 626.
When a person is legally arrested, the officer is bound to
have him forthcoming, by the production of his body, or in
place thereof, a regular bail-bond, signed and sealed by the
party arrested, and by one or more good and sufficient securities.
This action also lies for a false return of the sheriff or consta-
ble. It will even lie where a constable returns a warrant at a
time and place different from the time and place the defendant
was notified of.
So, if the sheriff return that he has made known a scire fa-
cias, when in truth and in fact he has not done so.
This action lies against a justice of the peace for any breach
or neglect of the duty of his office. As if a justice of the peace
deny, refuse, or obstruct bail, where it ought to be granted;
for such conduct he is liable to an action on the case. 2 Haw.
P. C. 90. Hale's P. C. 97.
So, if a justice of the peace be applied to for an attachment
against an absconding debtor, and refuse to issue the same, and
the plaintiff sustains a loss by occasion of such refusal, or where
any other duty is required at the justice's hand, and he refuses
to perform it, and in consequence thereof the plaintiff sustains
a damage, this action lies.
I will now call the reader's attention to injuries by private
persons. 1st. Where there has been a trust or confidence re-
posed; and,2d. Where no such trust has been bestowed.
ACTIONS OF DEBT CASE.
113
1st. Of injuries where there has been a trust. These include
the doctrine of bailment.
Bailment is of six kinds. The first is naked bailment, to keep
for the use of the bailor, without any profit to the bailee; and
in such case the bailee is not chargeable, except in case of gross
negligence; mere want of care is not sufficient. 2 Ld. Ray. 903.
Com. Rep. 13-1.
The person delivering the thing, is called the bailor, and the
person rccehing, the bailee.
The second kind of bailment is the entrusting goods to be
carried for hire or reward, in which case the bailee is chargeable
for any lo^s. This applies to all carriers, whether by water or
land, wagoners, boatmen, draymen, &c.
At the common law, the carrier is liable for all losses happen-
ing to goods entrusted to him to carry from one place to another,
except such losses as arise from the acts of God, or the common
enemies of the king and country; to which may be added, such
looses as arise from the fault of. the party sending them. Co. Lit.
Mb Coggs vs. Bernard, 2 Ld. Raym. 909.
As if a carrier is robbed, he shall be liable to the bailor for
the loss; robbers not falling under the denomination of common
enemies of the country. And if the law was otherwise, it would
open a door for carriers to collude with thieves, and be robbed
by concert, and thereby defraud the owner of his goods. Saue vs.
Cotton, 1 Sulk. 143.
But the act of God shall excuse the carrier: as where the
defendant was carrying a costly load of mahogany furniture
in his wagon, along the road, and a tree should fall upon
the waggon and break the furniture; or where the defend-
ant"s boat, having goods of the plaintiff's on board, coming
through a bridge, was, by a sudden squall of wind, driven against
the arch and sunk, and the like, no action lies, because the
wagoner in the one case, or the boatman in the other, could,
by no degree of prudence, avoid the accident. Amis vs. Stephens.
1 Stra. 128.
And upon the same principle, if a bargeman, in a tempest,
for the safety of the lives of his passengers, throw overboard any
trunks, boxes, or the like, no action lies.
But the plea of the act of God will avail nothing, where the
P
114
CIVIL DIVISION.
defendant, of his own accord, goes into dangers from which a
loss is likely to accrue, as driving a wagon into deep water,
or travelling through a storm in the woods, or setting off from
the shore in a boat in a tempest, or the like. Esp. N. P. 620.
But whenever the act of God is set up as a defence, it must
fully appear that the loss was occasioned by the act of God.*—
In order to excuse the carriers, presumption that it might have
so happened, will not do.
For where the defendant, who was a carrier, lodged his wa-
gon in the yard of an inn, an accidental fire broke out, which
consumed the wagon and load, he was adjudged to be liable,
though it was contended that it did not appear in this case how
the fire broke out, so that it might have been by lightning,
which is the act of God. Forward vs. Pettard, 1 T. Rep. 27.
Negligence does not enter into the grounds of this action;
for though the carrier uses all proper care, yet in cases of loss
he is liable.
The next exemption from losses by a carrier, is where it is
done by the act of the common enemy: to excuse, the enemy
must be a public enemy, not traitors, felons, or the like.
The default of the owner of the goods shall excuse the car-
rier: as where an action was brought against a carrier for neg-
ligently carrying a pipe of wine, which by that means burst and
spilt the wine; it was adjudged good evidence for the defendant,
that the loss happened while the defendant was driving gently,
and that it arose from the wine being in a_ ferment, so that the
loss was occasioned by sending it in that state. Bull. N. P. 74.
So, if the carrier's wagon is full, and the owner will force
his goods on him, and they are lost, the carrier is not liable, for
it was the owner's folly to act with so little precaution. Lovett
vs. Hobbs, 2 Show. 127.
But for all other accidents and perils the carrier is liable,
from whatever cause they may proceed. Esp. N. P. 621.
As where, in an action against a barge-master for goods spoil-
ed by water, the defendant proved that when the goods were
put on board, the vessel was tight, but the damage was occasion-
ed by rats eating out the oakum through which the water came;
it was held to be no excuse. Dale vs. Hall, 1 Wils. 281.
A carrier is only liable for his acceptance, and for the amount
ACTIONS OF DEBT CASE.
115
for which he is paid; for he is chargeable by reason of his re-
ward. For where a man delivered a bag containing money,
and being asked how much it contained, answered two hundred
pounds, for the carriage of which he only paid, and the carrier
gave a receipt accordingly; in fact the bag contained fourhun-
dred pounds; the carrier was robbed, and he was held to be lia-
ble only for the amount of two hundred pounds. Tyly vs. Mor-
ris, Carth. 485.
Under a general acceptance, the carrier is bound for whatever
ho receives. As where a carrier only asks what is in a box, and
he is told silk; if it be money and is lost, the carrier is liable,
unless he made a special acceptance, quere de hoc. Bull. N. P. 75.
But under a special or qualified acceptance, he is bound no
further than he undertakes. Clay vs. Willow, H. Blac. Rep. 298.
A delivery to the carrier's servant is a delivery to himself, and
shall charge him; but they must be goods such as it is the cus-
torn of the carrier to carry, not out of the line of his business.
"Where goods have been lost which were put on board a boat
or ship, the action may be maintained against either the master
or the owners.
It is not necessary to charge the carrier, that the goods should
be lost (in transitu) on their passage, while immediately under his
care; for he is bound to deliver them to the consignee, or send
notice to him according to the direction. Though they are car-
ried safely to the place of destination, yet if left there till they
are spoiled, and no notice given to the consignee, the carrier is
liable.
Either the consignee or consignor may maintain an action
against the carrier for the loss of the goods; but both cannot
have an action at the same time. Dale vs. Hall, 1 Wils. 281.
Any person carrying goods for hire is a carrier, and cnargea-
ble as such for any loss; as wagoners, captains of ships, boats,
lightermen, draymen, and such like. Rich vs. Kinsland, Cro.
Jac. G30.
The third species of bailment, is a delivery, by way of pledge,
which is called vadium.
The person who places the goods in pawn is called the paw-
ncr, and the person to whom pledged is called the pawnee.
The pawnee is bound only to take such care of the thing
116
CIVIL DIVISION.
pawned, as a prudent man would take of his own goods: there,
fore., if goods pawned be stolen, if the pawnee took such care of
them as a prudent man would of his own goods, he shall be dis.
charged from liability, and recover of the pawner the amount for
which they were pawned. Co. Litt. 89. Salk. 523.
But if the pawner tenders the money, and the pawnee refuses
it, and keeps the goods, if they are afterwards lost, the pawnee
is chargeable; for, after the tender, the goods cease to'be a
pledge, and the pawner may maintain an action of trover for
them. Manly vs. Westbrook, 29 G. II. K. B. Bull. N. P. 72.
The fourth species of bailment, is the delivery of goods for
hire; as hiring out a horse, which is called locatio; and here the.
hirer is to take all imaginable care.
The fifth species of bailment, is a delivery of goods for some
purpose, (as to merchandize with) without any reward; it is call-
ed an acting, by commission ; and though the bailee is to have
nothing for his trouble, yet if there were any neglect in him, he
will be answerable; for having undertaken a trust is a sufficient
consideration: but if the goods are lost, without any default in
him, he is not chargeable; for his having taken reasonable care
shall discharge him.
The sixth and last species of bailment, is where goods are de-.
livered to the bailee for the purpose of the bailee deriving some
benefit or advantage from them, but which are to produce no
advantage to the bailor; as oxen to plough, horses to ride, and
the like, and which are to be returned in specie, that is to say,
the things themselves are to be returned. This is called accom-
modatis, or a lending gratis. In this case the borrower is bound
to take the utmost care of the thing so lent; for if he be guilty
of the least neglect, he shall be answerable for it, though he
shall not be charged where he is in no fault. Com. Rep. 134.
Co. Litt. 37.
But in this case the bailee must use the thing lent in the man-
ner intended; as if a man lends another a horse to go into the
west, and he goes into the north, and the horse dies, the bailee
is liable; but if the horse be stolen out of the stable withoutany
fault of the bailee, when on the route designed, no action lies;
but otherwise, if he leaves the door open negligently, and the
horse is stolen. Com. Rep. 136.
ACTIONS OP DEBT CASE.
117
Under this head of bailment seems to fall the action against
public innkeepers; for they are chargeable with any losses hap-
pening in their inns, by reason of the profit arising cither from
their keeping of the horses, &c. of their guests, or from the
profits from their guests themselves.
The person chargeable as an innkeeper, must be the keeper of
a common inn; for such only arc chargeable for the loss of the
goods of the guests wl^om they entertain. Cayle's case, 8 Co. 22.
Cro. Jac. 220.
The guest must be received as such, by an innkeeper, in order-
to make him chargeable. For if a traveller comes to an inn,
and the innkeeper tells him his house is full, and the traveller
replies that he will shift, or take his chance in the inn, and the
innkeeper suffers him to do so, and the traveller is robbed, the
innkeeper is not liable; but if the traveller had not used these
words, and the innkeeper, notwithstanding his first objection,
had admitted him, he had been chargeable: for in the first case
the traveller runs all risks of loss, and the innkeeper refuses to
take charge, but in the latter case, the admission is an implied
waiver of the first denial, and so restores the right of charging
him. Moore 78.
The loss to the guest must be occasioned by the act or neglect
of the innkeeper or his servants. Therefore, if the guest is rob-
bed by his own servant, or travelling companion, the innkeeper
is not liable, because it was the guest's fault to have such persons
with him; but if the innkeeper appoints another person to sleep
in the room with the guest, and he is robbed, the innkeeper is
liable. Cayle's case, 8 Co. 22.
The innkeeper is only liable for such goods of his guest's as
are withifl his house and under his care; therefore, where a
guest at an inn directed his horse to be turned out to grass in
a field, or the like, the innkeeper is not chargeable if the horse
be stolen; but if the innkeeper had turned the horse to grass
of his own head, he had been liable, for it was his own act, and
the horse entirely in his own care. Ibid.
And even while the things are within the inn, if the inn-
keeper directs the guest to place his goods in a particular place,
under lock and key, or he will not be answerable for them, and
the guest refuses or neglects to do so, but puts them in another
118
CIVIL DIVISION.
place, and they are lost, the innkeeper is not chargeable. Brand
vs. Glass, Moore 158.
Bat without such particular direction from the innkeeper, if
the goods are lost, it will be no excuse to say that he delivered
the key of the chamber to the guest, and that he did hot ac.
quaint the innkeeper what the goods were, or that the thief is
discovered. Cayle's case, 8 Co. 22.
If a servant is robbed at an inn, of his master's property, the
master may maintain this action against the innkeeper, for the
property so lost. Also, where the horse, or other property, may
be injured by the want of due care in the innkeeper. Beidle
vs. Morris, Cro. Jac. 824. Yelv. 162.
The next class of injuries I shall notice, falling under the ac.
tion upon the case, is that of injuries resulting from Deceit n
Sales. These include warranties, or frauds, in the cases of
sales, or the exchange of property.
Fraud, or deceit in the seller, may be either, 1st, in the value
of the thing sold; 2d, in the seller's title to it.
Where a thing is of a certain value, and that is known to
the seller, but cannot be known to the buyer, for any deceit hi
the affirming the value to be different from what it is, this ac-
tion lies. As where the landlord of a house, wishing to sell the
same, affirmed the rent of the house to be more than it really
was, whereby the purchaser was induced to give more for it
than it was worth, this action was held to lie; for the value of
the rent was a matter of private knowledge between the land-
lord and tenant, and of which the purchaser could not be pos-
sessed by ordinary prudence. Risney vs. Silby, Salk 211.
But if the buyer has it in his power to inform himself of the
true value by ordinary prudence and exertion, and rteglects it;
the action will not lie. As if the landlord, in the above case,
had only said, that J S would give so much for it, whereas J
S had never offered any thing, the action would not lie; for the
buyer might have inquired of J S and been informed of the
truth. Ld. Raym. 1118.
These principles apply only to things of a particular value,
and not to those that may depend upon caprice or whim, as
pictures, paintings, &c.
This action also lies for the sale of a thing where the seller
ACTIONS OF DEBT CASE.
119
is ignorant of the true s(ate, value and condition of the thing,
and that is where he soils it with a warranty of its value or qua-
lit/-
If a servant sells any thing in the way of his master's business,
and warrants it, if there is any fraud or deceit, the master is li-
able. Ilarvey vs. Young, Esp. N. P. 629. Yelv. 20.
As where a goldsmith's apprentice sold an ingot of gold and
silver, upon a special warranty that it was of the same value of
an assay then shown, and upon evidence it appeared that he
had forged the assay, and made the ingot out of a lodger's plate
that he had stolen, the master was held liable. Grammer vs. Nix-
on, 1 Stra. 6o3. And even where the seller himself has been
deceived by his servant, yet he is liable to the buyer. Hearn vs.
Nichols, 1 Salk. 289.
Cut to charge the seller by reason of his warranty, it must be
observed that the warranty does not extend to defects visible to
the eye of the buyer, for of these he must be apprised at the
time of sale; but if the defect is not visible, there a general
warranty shall extend to jt, and subject the seller. As if a man
warrants a horse sound in every respect, and he wants a tail or
an car, the warranty shall not be held to extend to such a defect;
hut upon such a warranty, if the horse be blind, the action
would lie, for though blindness is a defect in general visible to
the eye, yet in horses it requires skill to discern it.
The warranty must be made at the sale, and not after it, to
charge the seller; for if made after the sale, it is without con-
sideration; neither does the buyer then take the goods on the
credit of the seller.
A general warranty only extends to the present defects, viz.
that the thing is sound, and not that it will be so an hour, a day,
or a week thereafter; for the^ warranter only agrees that the
promise is true at the time it is made.
And an offer of warranty at one time shall not be construed
to intend to a subsequent sale of the same thing.
If a defendant, knowing the goods to be unsound, uses any
art to disguise the true situation of them, or if they are in a
plight, shape or condition different from what he represents
them to the buyer, this action lies, for this artifice is a deceit.—
Southern vs. How, Roll, Rep. 5.
120
CIVIL DIVISION.
The second species of fraud in the seller, on which this ac-
tion is founded, is where there is a fraud in the representation
he makes of his title t, the thing sold. Wherever there - is a
sale of any article of personal property, the law raises an impli-
ed promise that the thing sold belonged to the seller; nor is it
necessary that there should be an averment that the defendant
knew the thing was not his own. Harding vs. Freeman, Style 31.
Esp. N. P. 632.
It is not necessary for the plaintiff to wait for the real owner
to bring suit or demand his property, before he institutes bis
suit against the seller; for the sale, under such circumstances,is
itself an offence; and if he should wait till the goods were re-
taken, he might be remediless, and sustain a mischief. Furnis
vs. Leicester, Cro. Jac. 474. Show. 63.
Of the same nature with this fraud, is where a person affirm-
ing that certain goods are the property of his friend, and that
he has the authority to sell them, having no such authority, in
which case this action lies for a false warranty. Warner vs. Tal-
lard, Bull. N.P. 30.
In this case, the deceit being in the false affirmation, it will be
sufficient for the buyer to prove them the goods of another, with-
out proving that the defendant knew them to be so; this proof
will be sufficient to put the defendant on the proof of his author-
ity to sell them.
But if the seller is out of the possession of the thing sold, at
the time of the sale, no action will lie against him, though
the thing sold was not his own, unless there was a warranty;
for being out of possession, there was room to question his title,
and m such cases it is caveat emptor, or take care purchaser. Me-
din a vs. Staughton, Salk. 218.
The preceding cases are chiefly predicated on the idea of a
warranty, either express or implied. We will now speak of those
cases where a deceit has been practised.
The idea that a sound price always implies sound property, is
not a correct one. In the common case of seller and buyer, or
in other words, of vendor and vendee, the consideration ought
only to be looked to as a circumstance in proof that the vendee
believed the property sound when he purchased it. But if the
vendor sold or exchanged his horse, or other article of personal
ACTIONS OP DEBT CASE.
121
property, believing it to be sound, and having no reason to be-
lieve otherwise, for a full consideration, without a warranty as to
the soundness, and there should be some hidden defect that would
greatly lessen the value when known, the vendor ought not to
be responsible for it; for the loss may p.s well fall on one inno-
cent man as another. And it is a rule, both in law and in equi-
ty, that where the plaintiff and defendant are equally innocent,
or equally guilty, the condition of the defendant is the best.—
2 Com. on Con. 2G3, 2S2. 1 Term, 176, 241. M'Farland vs.
Moor, 1 Ten. Rep. 17J. 2 East, 314. 4 John. 421.
E\erv man may praise his property, and speak of the sound-
ness, or other qualities of it, as he may please, and such declara-
tions do not amount to a warranty, nor to a fraud, unless he
know., lie is stating a falsehood. Westmoreland vs. Dixon and
Nhelton, 4 Ilayw. Rep. 223. No words will amount to a war-
ranty, that do not import a promise, that if the thing is different
from what lie states it to be, he will be accountable for it. As
if a\endor sajs''! will wrarrunt the thing so and so," or if a
vendor says,'-I will see to its soundness," or if he says "I will
make it sound," or if he says "if it is not sound I am," and the
like, will amount to a general warranty. And an action upon
the w arranty is an action of assumpsit for the breach of prom-
ise, and not one upon the case in the nature of an action of de-
ceil for the fraud.
Rut if a defendant upon the sale or exchange of his horse, or
other thing, represent it in a plight and condition different
from the one he knows it to be in, with a view of inducing the
plaintilf to purchase or exchange for it, and in consequence
thereof the plaintiff does buy or exchange for such thing, he may
maintain an action in the nature. oX:*V deceit for the suggestion,
llorn vs. Nichols, 1 Salk. 289. Chandler vs. Lopus, Cro. Jac, 41.
A man is liable for the suggestion of a falsehood, or the sup-
predion of a truth,, upon any sale or exchange of property,
where an injury results therefrom. M'Gavock, vs. Ward, Cooke's
Rep. 403.
Therefore, a man to be a fair dealer, must not only refrain from
stating a falsehood, but must declare the truth in relation to any
thing he is selling or exchanging. Perkins vs. M'Gavock, Cooke's
Rep. 417.
Q.
1-2-2
CIVIL DIVISION.
For if there be any latent defect in property known to the
vendor, he is bound to disclose it to the vendee, or otherwise he
will be answerable in damages to the extent of the defect.
A vendor is bound to disclose the true situation of any prop,
erty he is selling; and therefore if he know of any defect, he is
bound to disclose it, whether he is asked or not for information
in relation to the true state of the thing; and if a horse, or oth>
er animal, has been at any time before afflicted with any dis.
ease, the vendor ought to disclose it, that the vendee may ask a
warranty if he chooses.
It is much the safest mode of buying or exchanging, for thd
vendee to take a warranty from the vendor; and if he fail to do
so, he must abide by the consequence, unless he prove on his
vendor a knowledge of the defect, which amounts to a fraud.—
Horn vs. Nichols, I Salk. 289. Chandler vs. Lopus, Cro. Jac. 41.
4 Hay w. 226.
A man is liable for any fraud practised by his agent, factor or
servant, when acting for him; as where your storekeeper would
sell one kind of silk for another, and the like. Bull. 31. Salk. 289.
The various injuries for which an action on the case will lie,
have been sufficiently explained for all the purposes of society
and directions of magistrates. It only remains to present the mode
of proceeding in such class of cases; and in doing so I will be
compelled to give a great variety of forms. The warrant, as I
have in another place said, is in place of a writ and declaration,
and therefore a general form, as is given by some one at the
heels of Haywood gnd Cobbs' Revisal, will not do for all kinds
of injuries, even under the head of actions upon the case, much
less in trespass with force and arms, against the person, and against
the personal and real estate of the plaintiff, in trover and detinue.
When the legislature gave the justices of the peace, out of
court, jurisdiction over the various injuries falling under the
above heads, it did not design that every thing like the forms
of the law should be lost sight of, for if that had been intended
it would have been expressed in plain words. I presume, there-
fore, that the legislature did not design the proceedings upon
the statute to be like "the chaos void, and without form," but on
the reverse thereof, would rather say with the learned Lord Holt,
"that while truth is the glory, form is the beauty of the law."
ACTIONS OF DEBT CASE.
122
Finn of a warrant for erecting a mill dam, by reason of which the
plaintiffs land is overflowed.
'•State of Tennessee,) ss.—To any lawful officer to execute and
county,} return:
You are hereby commanded to summon A B to appear before
us, or some other two justices of the peace for said county, to an-
swer the complaint of C D, of a plea of tresspass on the case; for
this, that the said defendant has erected a mill-dam upon and
across a certain stream of water by the name of by reason
of which the water of said creek has flowed back and upon the
land ot the said plaintiff, and drowned the same, to the plaintiff's
damage twenty dollars. Herein fail not. Given under our
hands and seals, this day of A. D. 18 ." [To be
signed,&c. by two justices.]
Judgment on the above form of warrant.—"At, &c. on, &c. the
parties being present, and the warrant being read to and heard
by the defendant, he says he is not guilty in manner and form
as charged in said warrant; and the evidence on both sides be-
ing heard and fully understood: It is considered by us, that the
defendant did erect a mill-dam across the creek in the warrant
rtientioned, and that it has occasioned the water of said creek to
overflow and drown the plaintiff's land, to his damage fifteen dol-
lars; and that the plaintiff recover of the said defendantthe said
sum of fifteen dollars, the damages aforesaid, and all cost in this
behalf accrued, for which an execution may issue."
On the trial, the plaintiff must prove that the defendant either
erected the mill dam, or that he keeps the same across the said
creek, for every continuance is equal to an erection; and if a
defendant will continue the dam, as soon as one suit is ended,
the plaintiff may institute another suit, and recover new dama-
gos, and so on until the dam shall be removed; or the plaintiff
may apply to a court of equity by bill, and have the same aba-
ted. The plaintiff must also prove that the land is overflowed
by the erection and continuance of said dam.
Form of a warrant by a client against his attorney, for neglect of his
duty, whereby he was non-suited and put to cost.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon A B to appear before
124
CIVIL DIVISION.
us, or some other two justices of the peace for said county, to an-
swer the complaint of C I), of a plea of trespass on the case;
for this, that the said plaintiff retained and employed the said
defendant as an attorney at law, to manage and conduct a cer-
tain suit, wherein the said plaintiff was then and there plaintiff,
and E F was defendant,in the circuit court of county,and
State aforesaid, and that by reason of the neglect of the said
defendant, the said plaintiff was non suited, to his damage twen-
ty dollars. Herein fail not. Given under our hands and seals,
this day of A. D. 18 ." (To he signed, &c. by
two justices.)
Upon the trial, the plaintiff must prove that he actually em-
ployed the defendant as his attorney, not that he spoke to him to
attend, or the like, hut that the defendant agreed to attend to
and manage the same as an attorney; that in consequence of
said attorney's neglect, the plaintiff was non suited, and that the
plaintiff sustained damage by reason thereof. This action'will
lie against an attorney for any neglect whereby the client is
damnified.
Form of the judgment.—"At, &c. on, Ac. the parties being
present, and the warrant being read to and heard by the de-
fendant, he says he is not guilty as charged in such warrant;
and the testimony on both sides being beard and fully under-
stood: It is considered by us, that the defendant was regularly
employed and retained as an attorney by the said plaintiff, and
that through his neglect the plaintiff was non-suited in the case
mentioned in the warrant, and hath sustained damage by rea-
son thereof, to seventeen dollars and seventy-five cents; there-
fore, that the plaintiff recover of the said defendant the said
sum of seventeen dollars and seventy-five cents, and all cost in
this behalf accrued, for which an execution may issue."
Form of a warrant by the plaintiff against a ferry-keeper^ for keeping
his boat in such bad repair that the plaintiffs horse got his foot
hurt in the floor.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
us, or some other two justices of the peace for said county, to an-
swer the complaint of C D of a plea of trespass on the case; for
ACTIONS OP DEBT CASE.
125
fh:". that the defendant was a ferry-keeper upon river, and
kept his boat in such bad repair that the plaintiff's horse got
his foot fast in the boat-floor, by which the plaintiffhath sustain-
ed damage twenty dollars. Herein fail not. Given under our
hands and seals, this day of A. D. 18 (To be
signed, Ax. by two justices.)
LTpon the tri il, the plaintiff must prove the defendant a ferry-
keept r, and that the injury happened in consequence of the bad
r 'pair of the boat, Ac.
F>r,n <f th ju lament.—"At, Ac. on, Ac. the parties appear-
ing, and the warrant being read to and heard by the said de-
fendant, lie si\s he is not guilty in manner and form as charged
in the said warrant; and the evidence on both sides'being heard
and fully understood: It is considered by us, that the defendant
was a ferry-keeper, and that in consequence of the bad repair
of the boat the plaintiffs horse was injured, from which the
plaintiff has sustained damage fifteen dollars; therefore, that the
said plaintiff recover of the said defendant the said sum of fif-
teen dollars damage, and all cost which in this behalf accrued,
for which an execution may issue.
Form of a warrant by a guest, who got his arm broke by falling through
th^ tavern floor, against the landlord.
"State of Tennessee,^ sL—To any lawful officer to execute and
county,} return:
You are hereby commanded to summon AB to appear before
us. or some oilier two justices of the peace for said county, to an-
swer the complaint of (■ D, of a plea of trespass on the case;
for this, that the said defendant was an innkeeper in the county
aforesaid; that the plaintiff was taken and received as a guest
in said inn; that the defendant left the floor of his common hall
in such a rotten and ruinous condition that, the plaintiff walking .
over tlx same, fell through and broke his arm, to his damage
twenty dollars. Herein fail not. Given under our hands and
scab, this day of A.D. 18 ." [To be signed, Ac.
by two justices.
The allegations in the warrant show what must be proved.
Form of the judgment upon the above.—"At, Ac. on, Ac. the
parties being present, and the warrant being read to and heard
by the defendant, he says he is not guilty in manner and form
126
CIVIL DIVISION.
as charged in the warrant; and the evidence on both sides be*
ing heard and fully understood: It is considered by us, that the
defendant was a public innkeeper, and did leave the floor of
the common hall of his inn in such a rotten and ruinous situa-
tion, that the plaintiff fell through the same and broke his arm,
whereby he has sustained damage twenty dollars; therefore,that
the plaintiff recover of the said defendant the said sum of twen-
ty dollars, the damage aforesaid, and all.cost which have in this
behalf accrued, for which an execution may issue."
Form of a warrant against the defendant for keeping a ditch upon,
his own land in such a foul condition that it overflowed the plain,
tijfs land.
"State of Tennessee,) ss.—To any lawful oflicer to execute and
county, 5 return:
You are hereby commanded to summon A B to appear before
us, or some other two justices of the peace for said county, to an-
swer the complaint of C D, of a plea of trespass upon the case,
for this, that the said defendant did have and keep a ditch ad-
joining the land of the plaintiff, for the purpose of conveying wa-
ter along the same, and did suffer the same to become so foul and
choked up that the water from said ditch overflowed the plain-
tiff's land and killed his corn, to his damage twenty dollars.—
Herein tail not. Given under our hands and seals, this day
of A. D. 18 ." [To be signed, &c. by two justices.]
Upon the trial, the plaintiff must prove the existence of the
ditch; the foul condition, the overflowing, and the injury done
him by the same.
Form of the judgment.—"At, &c. on, &c. the parties being
present, and the warrant being read to and heard by the de-
fendant, he says he is not guilty in manner and form as charged
in said warrant; and the evidence on both sides being heard
and fully understood: It is considered by us, that the plain-
tiff's ditch being permitted to become foul and choked up, oc-
casioned the water to overflow the plaintiff's ground and kill
his corn, by reason whereof the said plaintiff has sustained dam-
age to the amount of ten dollars; therefore, that the plaintiff
recover of the said defendant the said sum of ten dollars, the
damage aforesaid, and all cost which have in this behalf accru-
ed, for which an execution may issue."
ACTIONS OF DEBT—CASE.
127
Should a plaintiff in the warrant lay his damage at ten dollars,
and upon the trial it should appear to the satisfaction of the magis-
trafes that the true damage is fifteen dollars, although they can-
not give a judgment for the fifteen dollars, it is proper for them
to permit the plaintiff to enter a non-suit, that he may commence
his action afresh, unless he be satisfied with ten dollars; for it is
an immutable rule of law, that the magistrates cannot give a
judgment for more, than the amount of damage laid in the war-
rant.
Form o f a warrant by a plaintiff against a defendant, for bringing
an unruly horse into a public highway to break, by reason of
which the plaintiff was run over and crippled.
'•State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon A B to appear before
us, or some other two justices of the peace for said county, to an-
swer the complaint of C D, of a plea of trespass on the case;
for this, that the said defendant brought an unruly horse into
a highway for the purpose of breaking him, upon which high-
way the plaintiff was travelling, and the said unruly horse ran
over the said plaintiff, and crippled him, to his damage twenty
dollars. Herein fail not. Given under our hands and seals,
this day of A. D. 18 [To be signed, &c. by
two justices.]
The warrant suggests the only evidence on the trial of the.
case.
Form of the. judgment.—"At, &c. on, &c. the parties being
pre-enf, and the warrant being read to and heard by the said
defendant, he says he is not guilty in manner and form as charg-
ed in the warrant; and the testimony on both sides being heard
and fully understood: It is considered by us, that the defendant
did bring his horse to break, and that he did run over the s dd
plaintiff, and crippled him, by reason of which he has sustain-
ed damage fifteen dollars; therefore, that the plaintiff recover
of the said defendant the said sum of fifteen dollars, the dam-
age aforesaid, and all cost in this behalf accrued, for which an
execution may issue."
128
CIVIL DIVISION.
Form of a warrant by the plaintiff against a maskf, in consequent
of his servant running his cart against the cart of the plaintiffs
and upsetting the same, with a barrel of whiskey, which was spilt
thereby.
"State of Tennessee,) ss.—To any lawful officerto execute and
county, 3 return.
You are hereby commanded to summon A Bo appear before
us, or any other two justices of the peace for saii county, to an-
swer the complaint of C D, of a plea of tresp&s on the case;
for this, that the servant of thb defendant drove his cart against
the cart of the plaintiff, which had a barrel of whiskey in the
same, which cart was upset, and the whiskey spit, to the plain-
tiff's damage twenty dollars. Herein fail not. Given under
our hands and seals, this day of A. D. 18 [To
be signed and sealed officially by two justices.]
Form of a warrant against a constable, for an escap of a defendant
upon a ca. sa.
"State of Tennessee,) ss.—To any lawful officeito execute and
county,) return:
You are hereby commanded to summon A B l» appear before
us, or any other two justices of the peace for sail county, to an-
swer the complaint of C D, of a plea of trespass on the case; for
this, that the said defendant was, on the da; of 18 ,an
acting constable for said county, and by virtue 1 a certain writ
of ca. sa. put into his hands for execution, atue suit of said
plaintiff, against one G H, arrested the said G X and after ha-
ving arrested him, as aforesaid, the said defenfcit suffered the
said G H to escape out of custody before he we delivered over
to the jailor, to the plaintiff's damage twenty miliars. Herein
fail not. Given under our hands and seals, thi; day of
A. D. 18 ." [To be signed, &c. by two juices.]
At the trial, the plaintiff must prove that the defendant was
a constable at the time of the arrest and escap, by a copy from
the record of his appointment; that he had G fin his custody
and that he escaped out of his custody; and tie extent of the
plaintiff's damage. If he fail in any of these, he cannot re-
cover.
Form of a judgment for the plaintiff.—"At, 4c. on, &c. the
parties being present, and the warrant being red to and heard
ACTIONS OP DEBT CASE.
129
by the defendant, he says, he is not guilty as charged in said
wnrraht; and the testimony on both sides being heard and fully
understood: It is considered by us, that the defendant was such
officer; that he arrested the said G II, and suffered him to es-
cape, as charged in the warrant; and that in consequence there-
of the plaintiff has sustained damage to the amount of seven-
teen dollars and seventy five cents; and therefore, that the plain-
tiff recover of the said defendant, the said sum of seventeen dol-
lars and seventy-five cents, as damages, and all cost in this be-
half accrued, for which an execution may issue."
Form, of a warrant against an officer for returning a warrant at a
time and place different from those of which he notified the plaintiff
in this action, and defendant in the former.
"State of Tennessee,) ss.■—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon A B to appear before
us, or any two justices of the peace for said county, to answer
the complaint of C D, of a plea of trespass on the case, for that
the said defendant was a sheriff [or constable, as the case may
be,] for the county aforesaid, on the day of 18 ; that
he had a warrant against the plaintiff, at the suit of I J, and
summoned liim to appear before L M, Esquire, a justice of the
peace for said county, at his own house, on the day of
18 , and the said defendant, instead thereof, fraudulently and
falsely relumed the said warrant before N O, another justice,
and at a time different from the one aforesaid, whereby judgment
was rendered against the plaintiff by default, to his damage
twenty dollars. Herein fail not. Given under our hands and
seals, this day of 18 ." [To be signed, &c. by two
justices.]
Form of a warrant against a justice of the peace, for refusing to take
good and sufficient bail, when tendered, for the plaintiffs appear-
ance at court, to answer for an assault and battery.
"State of Tennessee,) ss.-—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon A B to appear before
us, or any two justices of the peace for said county, to answer
the complaint of C D, of a plea of trespass on the case, for that
the said defendant was an acting justice of the peace for said
130
CIVIL DIVISION.
county, on the day of 18 and the plaintiff being
arraigned upon a state's warrant, for a charge of an assault and
battery, before said defendant, on the day and year aforesaid, at
his own house in said county, and by the judgment of the said
defendant the plaintiff was required to give bond and security
[or enter into recognizance with security, as the case may be,]
for his appearance at the court of pleas and quarter sessions of
said county, to be holden at the court house in the town of
on the day of 18 , or be committed to jail; the
plaintiff then and there tendered to said defendant, R and S
for his security aforesaid, who were good and sufficient; but the
said defendant then and there wrongfully refused them as such
security, and committed the plaintiff to jail, to his damage twen-
ty dollars. Herein fail not. Given under our hands and seals,
this day of A. D. 18 [To be signed, &c.by
two justices.]
Form of a warrant against a justice of the peace for refusing good
and sufficient security for a stay of execution.
"State of Tennessee.) ss.—To any lawful officer to execute and
county,3 return:
You are hereby commanded to summon A B to appear before
us, or any two justices of the peace for said county, to answer
the complaint of C D, of a plea of trespass on the case, for
that the said defendant was an acting justice of the peace for said
county, on the day of 18 and the plaintiff was sum-
moned by virtue of a warrant, at the suit of one E F, against
him, to appear before the said defendant, on the day and year
aforesaid, to answer the complaint of said E F, in a plea of debt
due by bill single, under one hundred dollars; that the plaintiff ap-
peared, and judgment was rendered against him for the sum of
seventy-five dollars, and cost; upon which judgment the said
plaintiff prayed for a stay of execution the time allowed by law,
and tendered N O as his security for the same, who was at that
time good and sufficient as security for said stay; but the said
defendant wrongfully refused to receive the said N O as secu-
rity for the stay aforesaid, and issued the execution as though no
security had been offered, to the plaintiff's damage twenty dob
lars. Herein fail not. Given under our hands and seals, this
ACTIONS OP DEBT CASE.
J31
day of A. D. 18 [To be signed, &c. by two
justices.]
On either of the trials, the plaintiff must prove that the jus-
tice of the peace had been sworn as a justice, by producing a co-
py from the records of the county court, and that he had acted as
such, and prove the proceedings before the defendant by parol,
if notice was given him to produce the proceedings on the trial.
This notice ought to be served when the warrant on the defend-
ant is served. Plaintiff must prove the solvency of the secu-
rity offered, the refusal, and the damage sustained.
Form of a warrant against a justice of the peace for refusing to
issue an attachment against an absconding debtor.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon A B, Esquire, to ap-
pear before us, or any other two justices of the peace for said
county, to answer the complaint of E F, of a pleat of trespass
on the case, for that the said defendant was an acting justice of
the peace for said county, to wit, on the day of 18
the said plaintiff applied to him, the said defendant, at, to wit,
in said county, to procure an attachment against one G H,who
was then and there indebted to the said plaintiff a large sum
of money, due by bill single, the said G H being about to ab-
scond the county aforesaid, and the said plaintiff then and there
offering to make the affidavit required by law, and to give the
said defendant any security he should require for the prosecu-
tion of said attachment; but the said defendant refused to issue
the same, to the plaintiff's damage twenty dollars. Herein fail
not. Given under our hands and seals, this day of
A.D. 18 [To be signed, <fcc. by two justices.]
At the trial, the plaintiff must prove, that the absconding
debtor was indebted to him, by producing the bill single, or
other evidence of debt; that he applied for the attachment; that
he offered to make the necessary affidavit, and to give any se-
curity the defendant might demand; and that the defendant re-
fused to grant the attachment. Unless this testimony can be
rebutted by the defendant, the plaintiff will be entitled to some
damage for the refusal, and may be increased according to the
trouble, delay and loss occasioned thereby.
132
CIVIL DIVISION.
Form, of a warrant by a bailor against a bailee, for gross neg-
ligence in keeping two barrels of salt, which the defendant re-
ceived into his cellar, without hire, but upon a promise to take
care of them.
'State of Tennessee,! ss.—To any lawful officer to execute and
county,^ return.
You are hereby commanded to summon A B to appear before
us, or any other two justices of the peace for said county, to an-
swer the complaint of C D, of a plea of trespass on the case,
for that the said C D delivered to the said defendant two
barrels of salt, in his cellar, which said salt the said A B prom-
ised to take care of for the said plaintiff; but, on the reverse
thereof, he, the said A B, let the water rise up in his said cellar,
and cover the said salt, whereby the said salt was wholly lost
to the said plaintiff, to his damage twenty dollars. Herein fail
not. Given under our hands and seals, this day of
A. 1). 18 ." [To be signed, &c. by two justices.]
At the trial, the plaintiff must prove the delivery of the salt,
and the gross negligence of the defendant, the extent of the
loss, the value of the salt, &c.
The forms of the judgments in each of the foregoing cases
are, in form, like the last judgment, but different in a small de-
gree as to the facts.
Form of a warrant by a bailor against a bailee, for hire, to w?f,
against a tavern-keeper, for suffering plaintiffs horse to be injured
in defendants stable.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
us, or any other two justices of the peace for said county; to
answer the complaint of C D, of a plea of trespass on the case,
for that whereas the defendant was a public tavern-keeper, and
the said plaintiff stopped at and put up as a guest in the tav-
ern of the said defendant, and then and there delivered his horse
to the said defendant, to be fed and taken care of by him, as
such tavern-keeper, and the said defendant received him to that
end, but suffered the said horse to be crippled, by getting one
of his legs fast in his stable, to the plaintiff's damage twenty
dollars. Herein fail not. Given under our hands and seals,
ACTIONS OF DEBT CASE.
133
this day of A. D. 18 [To be signed, <fec. by two
justices.}
At the trial, the plaintiff must prove, that the defendant held
himself out as a tavern-keeper; that the plaintiff was received
by him as a guest; that defendant took his- horse into custody
as such tavern-keeper; that the horse was injured in his stable,
and the extent of the injury. The damages will be allowed
according to the proof.
Form of the judgment in the above case.—"At, &c. on, &c. the
parties both being present, and the testimony on both sides be-
ing heard and fully understood by us: It is therefore consider-
ed by us, that the horse of the said plaintiff was injured in the
stable of the said defendant, he being then and there a public
tavern-keeper," by reason whereof the said plaintiff has sustain-
cd damage to the value of twenty dollars, and that the said
plaintiff recover of the said defendant the sum aforesaid, and
his cost about his suit in this behalf accrued, for which an ex-
ecution may issue." [To be signed, &c.]
Form of a warrant against a carrier, for the loss of a barrel of
wine spilled by the oversetting of his wagon.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
us, or any other two justices of the peace for said county, to an-
swer the complaint of C D, of a plea of trespass on the case,
for that whereas the defendant was a common carrier for hire,
by means of his wagon and team, from to and else-
where, and being such carrier, on the day of , the
plaintiff delivered to him a barrel of Malaga wine, to be carried
from to , and the said defendant by negligence upset
his said wagon and spilt a large portion of said wine, to wit, ten
gallons, to the plaintiff's damage twenty dollars. Herein fail not.
Given under our hands and seals, this day of A. D,
18 [To be signed, &c. by two justices.]
At the trial, the plaintiff must *prove that the defendant did
recievc the barrel of wine in his wagon as a carrier, to carry it
for the plaintiff to the point agreed on, and the quantity and
value of the wine lost.
134
CIVTL DIVISION.
Form of the judgment in the above case.—"At, &c. on, &c. the
parties being present, and the evidence on both sides being heard
and fullj understood: It is considered by us, that the plaintiff
recover of the said defendant the sum of fifteen dollars, for ten
gallons of wine, which he lost out of his wagon, and which he
had received of the said plaintiff to carry for a compensation,
and his costs in this behalf accrued, for which an execution may
issue."
The form of the warrant, and the kind of evidence, and the
form of the judgment, may be easily varied so as to suit every
kind of case for partial loss, or injury done to property deliv-
ered to a carrier. And when the carrier fails to deliver the
property at the place required by his undertaking, the party
injured may, at his election, maintain an action of trover, det-
inue, or an action on the case. The action on the case is pre-
ferable, because it arises on the defendant's express or implied
promise.
Form of a warrant against a carrier for the non-delivery of two
hundred weight of bar iron.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,^ return:
You are hereby commanded to summon A B to appear before
us, or any other two justices of the peace for said county, to an-
swer the complaint of C D, of a plea of trespass on the case,
for that whereas the said A B was a common carrier for com-
pensation, with and by means of his wagon and team, from
to and elsewhere, as he could get employment, and being
such carrier, the said C D delivered to him, in his wagon afore-
said, two hundred weight of bar iron, to be carried from
to and for a compensation, and the said A B then
and there promised to deliver the said iron at aforesaid,
by the day of but has wholly failed so to do, to
the plaintiff's damage fifteen dollars. Herein fail not. Given
under our hands and seals, this day of A. D. 18
[To be signed, &c. by two justices.]
At the trial, proof of the delivery, as above, will be sufficient.
It will lie upon the defendant to prove the delivery to the own-
er, at the place appointed.
The judgment is nearly like the last, except instead of saying,
ACTIONS OF DEUT CASE.
135
"lost out of bis wagon," -say, "which he has failed to deliver to
the plaintiff."
Form of a warrant at the instance of a pawner against a pawnee,
for damage done to a bolt of broadcloth, which the plaintiff had
paimcd to him.
"State of Tennessee.) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
us, or any other two justices of the peace for said county, to an-
swer the complaint of C D of a plea of trespass on the case,
for that whereas the said C D pawned, on the day of
to the said A B, and at his special instance and request, a cer-
tain bolt of blue broadcloth, containing yards, of the val-
ue of five dollars per yard, which said bolt of blue broadcloth,
by the gross negligence of the said A B, was greatly cut and
eat by moths, by reason whereof the said C D has sustained dam-
age to the amount of twenty dollars. Herein fail not. Given
under our hands and seals, this day of A. D. 18 "
[To be signed, &c. by two justices.]
At the trial, the plaintiff must prove the pawn of the cloth,
the quantity and quality of the same, the extent of injury, and
that it happened by the gross negligence of the defendant. The
judgment may be as follows:
"At, &c. the parties being present, and the evidence on both
sides being heard and fully understood: It is therefore consider-
ed by us, that the plaintiff recover of the said defendant, the
sum of twelve dollars, for the injury done a bolt of blue broad-
cloth, by moths, which was pawned by the plaintiff to the de-
fendant, and while in his care, and the costs in this behalf ac-
crued, for which an execution may issue."
Form of a n-arrant against a man for excessively using a horse
hired to him.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
us, or any two justices of the peace for said county, to answer
the complaint of C D, of a plea of trespass on the case, for that
whereas the said plaintiff, at the special instance and request of
the defendant, to wit, on the day of hired to the said
136
CIVIL DIVISION.
defendant a certain sorrel horse, the property of him the said
plaintiff, for the term of ten days, and the said defendant so ex-
eessively used and abused said horse, that the plaintiff saith he
hath sustained thereby twenty dollars damage. Herein fail not.
Given under our hands and seals, this day of A.D.
18 ." [To be signed, &c. by two justices.]
At the trial, the hiring of the horse, the abuse, and the ex-
tent of the injury, must be proved.
Form of the judgment in the above case.—"At, &c. on, &c. the
parties appearing, and the evidence on both sides being heard
and fully understood: It is therefore considered by us, that the
said plaintiff recover of the said defendant the sum of fifteen
dollars, for the abuse he gave the horse of the plaintiff in ri«
ding and working him, while- the said horse was hired to him
by the plaintiff, and all cost in this behalf accrued, for which an
execution may issue."
Form of a warrant against a man for an injury done to a horse
loaned to him.
"State of Tennessee, ) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon A B to appear before
us, or any two justices of the peace for said county, to answer
the complaint of C D, of a plea of trespass on the case, for that
whereas the said plaintiff loaned to the said defendant a certain
bay horse, the property of him the said plaintiff, for the term of
three weeks, to ride, plough and otherwise use, at the instance and
request of the said defendant; whereupon the defendant undertook
and faithfully promised the said plaintiff, that he would take good
care of said horse, and use him moderately; but instead there-
of, the said defendant suffered said horse, through negligence,
to run off when in gear and hitched to the plough, by means
of which the said horse let down, or had one of the leaders of
his hind leg cut, to the plaintiff's damage twenty dollars.—
Herein fail not. Given under our hands and seals, this
day of A. D. 18 ." [To be signed, &c. by two justices.]
At the trial, the plaintiff must prove the loan of the horse to
the defendant, the neglect by which the horse was permitted to
run off with the plough, and the extent of the injury. When
the plaintiff proves the loan, and the running away with the
ACTIOriS OF DEBT CASE.
137
plough, it lies upon the defendant to prove that the running
away was unavoidable, and without the least fault on his part.
Form of the judgment in the above case.—"At, Ac. the parties
being present, and the testimony on both sides being heard and
fully understood: It is considered by us, that the plaintiff re-
cover of the said defendant the sum of fifteen dollars, for an
injury done the plaintiff's horse, by negligently suffering him to
run away when in the plough, and the cost in this behalf ac-
crued," Ac.
Firm of a warrant for a fraud in the sale of a horse by misrep-
resentation.
"Slate of Tennessee.) ss.—To any lawful officer to execute and
county return:
You are hereby commanded to summon A B to appear before
us, or any t.vo justices of the peace for said county, to answer
the complaint of C D, of a plea of trespass on the case, for that
whereas the said plaintiff, at the special instance and request
of the said defendant, did purchase of the said defendant a cer-
tain bay horse, of him the said defendant, at and for the sum of
fifty dollars, and he, the said defendant, then and there repre-
senled the said horse to be sound and healthy, when in truth
and in fact he was unsound, in this, that the said horse was then
lame in his right hind leg, and that fact known to the said de-
fondant at and upon "the sale of the said horse, to the plaintiff's
damage twenty dollars. Herein fail not. Given under our
hands and seals, this day of A. D. 18 ." [To be
signed, Ac. by twro justices.]
At the trial, the plaintiff must prove the purchase of the horse,
the representation of the defendant that the horse was sound
and healthy, that the horse was unsound as described in substance
in the warrant, and that the fact was known to the defendant
at the time of the sale, and the extent of the injury done to the
horse by the lameness.
Form of the judgment in such a case.—At, Ac. the parties be-
ing present, and the testimony on both sides being heard and
fully understood: It is considered that the plaintiff recover of
the said defendant the sum of eighteen dollars, for fraudulently
selling a lame horse to the plaintiff as and for a sound horse, and
all cost in this behalf accrued," Ac.
* S
138
CIVIL DIVISION.
Form of a zcarrant for a deceit in the swap of horsesi by sup-
pressing the truth.
"State of Tennessee,) ss.—To any lawful officer to execute and
county ,5 return:
You are hereby commanded to summon A B to appear before
us, or any two justices of the peace for said county, to answer
the complaint of C D, of a plea of trespass on the case, for that
whereas the said plaintiff swapped and exchanged a sorrel horse
of him the said plaintiff, for a grey mare of him the said de-
fendant, and ten dollars in cash to boot, at the special instance
and request of the said defendant, and the said defendant then
and there well knowing the said mare to be unsound, in this,
that she was purblind, and of no use or value, yet the said de.
fendant suppressed his knowledge, and secreted the same, to the
plaintiff's damage twenty dollars. Herein fail not. Given un-
der our hands and seals, this day of A. D. 18
[To be signed, &c. by two justices.]
At the trial, the plaintiff must prove the exchange, as laid in
the warrant, the unsoundness of the eyes, that the defendant knew
it, and the extent of the injury. It will then lie upon the de-
fendant to §how that he disclosed the defect upon the swap and
exchange.
Form of the judgment in the above case.—"At, &c. the~parties
being present, and the testimony on both sides being heard and
fully understood: It is therefore considered by us, that the plain-
tiff recover of the said defendant the sum of twenty dollars for
a fraud in the exchange of the plaintiff's horse for the defend-
ant's mare, and ten dollars, by reason of the said mare being
then purblind, and that fact known to and concealed by the said
defendant, and all cost in this behalf accrued," &c.
Form of a warrant for a breach of warranty in the sale of a
horse.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon A B to appear before
us, or any two justices of the peace for said county, to answer
the complaint of C D, of a plea of trespass on the case, for that
whereas the said plaintiff, at the special instance and request of
the said defendant, bought of him a grey horse, at and for the
ACTIONS OF DEBT CASE.
139
price or sum of sixty-five dollars, then to the defendant in hand
paid, in consideration thereof the said defendant undertook and
faithfully promised that the said horse was sound and healthy
in every respect, and he would warrant him such, yet neverthe-
Jess the said horse was then and there unsound, in this, that he
was lame in the pastern joint of his right fore leg, whereby the
plaintiff has sustained damage twenty dollars. Herein fail not.
Given under our hands and seals, this day of A. D.
18 ." [To be signed, «fec. by two justices.]
At the trial, the plaintiff must prove the warranty at and up-
on the sale, made by the defendant. Any words of promise,
that he will be responsible for the soundness of the horse, will
amount to a warranty. The warranty only extends to defects
thenjexisting, hut not to" such as may exist "at any subsequent
time. The warranty does not turn on the knowledge or intent
of the defendant, but on the fact of the unsoundness of the horse
at the time; and whether it was known, or not, to the defendant,
is of no importance. In the investigation of the case, the extent
of the injury (as before) must be proved.
Judgaunt in the last case.—"At, &c. the parties being present,
and the testimony on both sides being heard and fully understood:
It is therefore considered, that the plaintiff recover of the de-
fondant the sum of ten dollars, by reason of the false warranty
made by the defendant to the plaintiff, upon the sale of a cer-
tain grey horse, as sound, when the said horse was unsound and
lame, &c. and the cost in this behalf accrued," &c.
Form of a zcarrant zchere a deceit has been practised by the defendant's
agent or servant,
"State of Tennessee,) ss,—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
us, or any two justices of the peace for said county, to answer
the complaint of C D, of a plea of trespass on the case, for that
whereas the said plaintiff purchased of and from one E F, then
acting as the agent and servant of the said defendant, in his store,
seven kegs of paint, for good white lead, at the price of four
dollars per keg, and which was then and there falsely and fraud-
ulentlj represented by the said E F as good, genuine white
lead, when in truth and fact they were nothing more than Span-
140
CIVIL DIVISION.
ish whiting, and that fact known to the said E F, agent and scr-
vant as aforesaid, whereby the plaintiff hath sustained fifteen
dollars damage, yet the same has not been paid by the said de«
fendant, although often requested so to do, &c. Herein fail not.
Given under our hands and seals, this day of A. D.
18 [To be signed, &c. by two justices.]
Form of a warrant against the defendant for selling a cow to th.
plaintiff., to zvhich he had no title.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded to summon A B to appear before
us, or any two justices of the peace for said county, to answer
the complaint of C E, of a plea of trespass on the case, for that
whereas the said plaintiff, at the special instance and request of
the said defendant, purchased of him a certain brown cow, at
and for the sum of fifteen dollars, in consideration thereof the
said defendant undertook and faithfully promised the plaintiff
that the said cow was his own right and property, and that he
would warrant the title thereof to the said plaintiff, when in
truth and in fact the said cow was not his right and property at
the time of the sale aforesaid, and that fact well known to the
said defendant, by means whereof the said plaintiff has sustain-
ed damage twenty dollars. Herein fail not. Given under our
hands and seals, this day of A. E. 18 ." [To he
signed,&c. by two justices.]
At the trial, the plaintiff must prove the purchase, and that
the defendant sold the cow to him as his own property, and the
price for which she was sold, and that she was the property of
another person, and that fact known to the defendant. The
judgment in such case is as follows:
"At, &c. the parties being present, and the evidence on both
sides being heard and fully understood: It is therefore consid-
ered, that the plaintiff recover of the said defendant the sum of
fifteen dollars, the price of a certain cow sold by the said de«
fendant to the said plaintiff, as and for his own property, when
he knew the said cow to be the property of another person, and
which he had no authority to sell, and all the cost in this behalf
accrued, for which an execution may issue,"
ACTIONS OF DE13T CASE.
141
Form of a warrant against a merchant, for a cheat practised by
his thrk in selling four horn tuck-combs, as and for good tortoise-
slo 11 combs.
^Staie of Tennessee.) ss.—To any lawful officer to execute and
county,) return:
You are hereby commanded to summon A B to appear before
u>«, or any two justices of the peace for said county, to answer
the complaint of C D, of a plea of trespass on the case, for that
u herons the said plaintiff purchased of one E F, on the
da> of at, to wit, in the county aforesaid, four tuck combs,
at the price and sum of four dollars and fifty cents each, as and
for good and genuine tortoise-shell combs; he, the said E F,
then and there representing the said combs to be good, pure and
genuine tortoise-shell, when he, the said E F, well knew the said
combs to be nothing more than common horn combs; and he,
the said E F, was then and there the store-keeper and clerk of
the said defendant, and as such acting in his store, whereby
the plaintiff has sustained eighteen dollars damage. Herein
fail not. Given under our hands and seals, this day of
IS .1' [To be signed, &c.]
At the trial, the plaintiff will be required to prove the deceit,
and that E F was the store-keeper and clerk of the defendant,
lorm of a judgment in such a case.—"At, &c. the parties be-
ing present, &c. and the testimony on both sides being heard
and fully understood: It is considered by us, that the plaintiff
recover of the said defendant the sum of eighteen dollars, the
damage sustained by the plaintiff, in consequence of a cheat
practised by a certain E F, the store-keeper and clerk of the
said defendant, in the sale of four horn tuck-combs for good and
genuine tortoise-shell, when he, the said E F, knew they were
not such, and all cost in this behalf accrued, for which an ex-
ecution may issue.''
The forms of the warrants, the briefs of the testimony, and
the forms of the judgments in the preceding pages, will enable
the reader, by observing each class of cases, to form and shape
his proceedings to suit almost any possible case that may oc-
cur. 'Ihcse forms may seem long to some, who are so fond of
brevity as to leave out the essential substance; but none of them
can be abridged without omitting part of their essential sub-
142
CIVIL DIVISION.
stance. A great license has been taken by justices of the peace
in abridging their forms, and in some instances in acting without
forms, in their proceedings, from an anxious desire which they
have seen manifested by the superior courts to uphold their
proceedings when the substance can be arrived at; and this so-
licitude on the part of the courts has, in many instances, invol-
ved them in strange absurdities, as all departures from legal forms
will, sooner or later, always do. It has been properly determi-
ned by our supreme court, that when the paper proceedings
in a cause had before a justice of the peace are proved by prop-
er evidence, they are as much records as the minutes and pro-
ceedings of the courts of record in this State; therefore they are
to have the same legal qualities attached to them that are al-
lowed to other records; they are not to be enlarged or diminish-
ed by parol proof, nor can they in anywise be explained by
parol evidence. Whatever ought to appear on the record, can-
not be supplied by parol. Hence the necessity of such exact
formality as is pointed out by the modes of proceeding laid
down in the preceding pages.
The proceedings before justices of the peace are frequently
made the foundation of a man's claim to his property; the
grounds of defence to the actions brought against sheriffs, coro-
ners, and constables, for levying and selling property under a
justice's execution, or writ of Jieri facias; and as these cannot be
explained by parol evidence, they ought to be sufficiently formal
to explain themselves, that is to say, to evidence on their face
all they are required to prove.
The justice of the peace, while alive, is the proper, and prob-
ably the only person to prove his records, when he is not a party
to the suit or proceeding where they are offered in evidence;
yet he, no more than any one else, is allowed to add to, or di-
minish what he placed in writing, when the proceedings were
originally had before him. When the justice of the peace is
a party to the suit, his records may be proved by any compe-
tent witness, who is acquainted with the justice's hand-writing,
from having seen him write frequently, or from a correspond-
ence between witness and the justice upon business, or on any
other subject touching the affairs of either.
actions od debt jurisdiction.
113
I will again repeat, that justices of the peace ought to be
very circumspect in relation to their exercise of jurisdiction.
M< >re mischief results from an excessive exerciseof Jurisdiction,
to the poor and uninformed, than from almost any other cause of
error. Man is by nature prone to grasp at power; and give
him what portion you please, and he will ask for more. It there-
fore becomes an American public servant, to look well to his du-
ty, in view of the two constitutions, which were intended by the
wise framers of our State and Federal governments, to operate
as double walls to restrain man in office from encroaching on
the rights of his fellow citizens. A little encroachment, such
as may be used by a single justice, may seem harmless; but re-
fleet, that if each one should do the same thing, what an army
you would have of influential men spread over the face of the
State, who by piecemeal will be eating away the foundation of
this happy government. The unconstitutional encroachment of
the various departments of the judiciary, is more to be feared,
as a certain means of the destruction of our republican institu-
tions, than "an army with banners." Should the constitution
be amended, and the judiciary, from the highest to the lowest,
be made to depend on the whim of election at stated periods,
you may soon bid farewell to that freedom which was purchased
with the blood of your fathers. It may be asked by some un-
reflecting man, how can the liberties of the people be affected
by a popularly elective judiciary?
I will readily answer, that freedom which is worth possessing,
consists in equal rights, and the security of bur persons and prop-
crty. Such equal rights, and such security of person and prop-
erty, I contend, cannot exist where the judiciary is made to de-
pend on the capricious whim of a populace, run mad by the
instigation of favorite demagogues. I will suppose all our jus-
tices and judges to have held their offices at the mere will of
the people, during the late political excitement in this State,
and a prosecution of any kind to have been instituted by a
leading man of the Jackson party, against one of those unfor-
tunate Utter writers, who wrote against Jackson, the people's fa-
vorite—I ask you what would have become of liirn, though inno-
cent of the charge exhibited against him? I will answer for you.
One of two things would have been as certain as that water
1-14
CIVIL DIVISION.
runs down hill: that is, he would have been convicted, or that
the judge would have been turned out of office at the nextelec-
tion before the legislature or the people. The members of the
legislature get elected, we all know how, and when in their
seats, they must recollect what is pleasing to the large and
powerful connections and parties at home, lest they should nev-
er get hack again; and could any "man be re-elected who would
have cleared such a defendant? The answer must be,no. Then
you see how the matter would work in practice. The judge is
made of frail mortality, like other men, and would have as great
a regard for his office as a member of the legislature would have
for his station; and,consequently, he would show as great a de-
sire to please the people, at (he expense of duty and principle,
and would be doing grace to the ruling party in each county,
as much as the member of the legislature; holding to the power-
ful, and putting at nought the weak; endeavoring to make the
popular rich man richer, and to oppress the unpopular poor.—
Under such a state of things, what would become of a poor,
friendless man, when his opponent at law should he rich and
popular? Answer: lie would, if a plaintiff, be kicked out of
court without a hearing, except as a mere show; and if a de-
fendant, he would as certainly be defeated as that his adversary
should be rich and popular. Of all the people on the earth,
the poor are the most interested in an independent judiciary—
a judiciary free to do right and justice to the rich and the
poor. And strange to tell, the wealthy have made the poor the
instruments of their own destruction in all ages of the world.--
In the decline of all free governments, the rich have made wil-
ling slaves of the poor. This has never been effected until the
tribunals of justice have been robbed of their independence,
and been corrupted by the hope of public favor.
I will close this essay with this admonition to the justice and
the judge: never to exercise a power not clearly given to him
by the constitution; and to the people, never to part with the
independence of their courts until they are prepared to sound
the funeral knell of their liberty.
Many justices, and many lawyers, are of opinion, that a jus-
tice of the peace may rightfully exercise jurisdiction, where the
balance is due by specialty, note, or agreement, signed by the
ACTIONS OF DEBT JURISDICTION.
145
parly to be charged thereby, and is under one hundred dollars,
w Inch may be discharged in specific articles. They say, the de-
fendant might have paid in the articles mentioned in the note
once, viz. at or before the note or bond fell due, and as he did
not avail himself of the alternative which was made for his ben-
efit, at or before the time his obligation fell due, it has become a
money demand, and therefore a justice of the peace has juris-
diction.
The supreme court of our State has repeatedly decided against
this claim of jurisdiction. In the case of Bedford vs. Hickman,
determined at Nashville in January 18*29, the supreme court
ay, that a justice of the peace has not jurisdiction where the
balance is due by a note payable in current bank notes, where
the balance exceeds fifty dollars. 1 Yerg. 167.
The same point was decided by the court at Reynoldsburgh,
May term 1828, in M'Connell vs. Culp. (See act of 1809, ch. 54.)
The case of M'Connel vs. Culp was on a note for more than fifty
dollars, payable in current bank notes.
In the case of Arnold vs. Embree, Peck's Rep. 134, the court
use this strong language: "the opinion of the court is, that the
justice of the peace has no jurisdiction over a property contract
exceeding fifty dollars."
I will here add, that where an appeal is granted, that fact
must be stated on the minutes of the proceedings. It will not
be sufficient to recite the fact in the appeal bond. The justice
ought to say:
"The plaintiff [or defendant, as the case may be,] prayed an
appeal to the next county court, [or circuit court, as the case
may be,] to be holden for the county of at the courthouse
in the town of ,- on the Monday of next, which
is granted to him accordingly."
Bond and security for such appeal must be given, without
which no jurisdiction is communicated to the court to which the
appeal is prayed; and if the cause is taken there without such
security, and docketted, it will be stricken from thence without
cost. Rodgers vs. Hill. Joyner vs. Lankford, 1 Yerg. 400.
No continuance of a cause before a justice of the peace can
be had, but by the consent of the parties, or upon the affidavit
of the party praying the continuance. It cannot be legally done
T
146
CIVIL DIVISION,
by the justice under any pretext of his own. He may take an
advisaria, time to make up his opinion, or advise what opinion lie
shall give, after he has'heard all the evidence in the cause; and
in such case, it is his duty to notify both parties of the time and
place when and where he will give such opinion.
Form of an affidavit for a continuance, by the plaintiff in consc-
quence of the absence of a witness who has been summoned.—"P Q vs.
R S.—The plaintiff makes oath, that A B is a material witness
for him on the trial of the above cause, that he has been regu-
larly summoned, that he does not attend, that his non-attendance
is not owing to the default or procurement of this affiant, and that
he cannot go safely to trial without the benefit of said witness'
testimony. Affiant believes that he can have the benefit of said
witness' testimony on Saturday next, provided the cause can be
continued until that day, and that this continuance is not asked
for the sake of delay, but for the attainment of justice.
"Sworn to and subscribed before me,) P Q.
this day of A. D. 18 $
C D, Justice of the Peace"
The above form is what, in law, is called a general affidavit,
where a witness has been summoned but does not attend.
An affidavit made by a defendant, under a like state of facts,
is in every respect like the above, except that the word defend-
ant must be used in the place of the word plaintiff, and they
will be the same in all cases on a like state of facts.
Form of an affidavit, by a plaintiff Jor the non-attendance of a
witness who has not been summoned, because he had not known of
his materiality until too late to have him summoned.—"P Q vs. R S.-—
The plaintiff makes oath, that A B is a material witness for him
on the trial of this cause, that he would have had said witness
summoned, but was not apprised of his materiality until this day
[or some time too lately before the day of trial, as the case may
be,] too late to have him summoned, and that he cannot go
safely to trial without the benefit of said witness'testimony. He
believes he can procure said witness' evidence on Tuesday next,
provided he can have a continuance until then; that this con-
tinuance is not asked for delay, but for the attainment of justice.
Sworn to and subscribed before me J P Q,
this day of A. D. 18 $
C D, Justice of the Peace.''
ACTIONS OF DEBT AFFIDAVITS.
147
A general affidavit is sufficient for a first continuance; but
for a second continuance by either party, a special affidavit must
be made; that is to say, an affidavit disclosing the facts the par-
fy expects to prove by his absent witness. The form following
will be sufficiently explicit:
"P Q vs. R S.—The defendant makes oath, that A B is a ma-
tcrial witner-s for him on the trial of the above cause; that he
has been regularly summoned, but does not attend; that his non-
attendance is not owing to the default or procurement of the af-
liant; that he expects to prove by the said witness, [here state
the facts the party expects to prove by his absent witness;] that
he cannot prove the facts so fully by any other witness; he be-
lieves he can procure the attendance of said witness on Saturday
next, if he can procure a continuance until that day; and that
this continuance is not asked for delay, but for the attainment of
justice. R S,
Sworn to and subscribed before me,)
this day of A. D. 18 )
C D, Justice of the Peace."
No second continuance ought to be granted but on the pay-
ment of the cost of the day upon which the continuance is al-
lowed; and when the party has been guilty of any thing like
gross negligence, he ought to be taxed with all the cost that
has accrued in consequence of his own carelessness.
An affidavit to procure a continuance, and to take "a deposi-
fion of a witness residing out of the county, may be as follows:
•'P Q vs. R S.—The defendant makes oath, that A B, of
county, is a material witness for him on the trial of the above
cause; that he cannot go safely to trial without the benefit of
said witness' testimony; that he has not had it in his power to
procure said witness' attendance, or to take his deposition since
he was summoned; he believes he can obtain the benefit of said
witness' testimony, provided he can obtain a continuance until
next; he therefore prays a continuance as aforesaid, and
that a commission be granted to him to take said witness' depo-
sition. This application is not made for the sake of delay, but
for the attainment of justice. R S.
Sworn to and subscribed before me,)
this day of A. D. 18 )
0 P, Justice of the Peace.''1
118
civil division.
Form of an order to take a witness' deposition.—"From reasons
1794, c.i, 530. appearing to my satisfaction, from the affidavit of the
I8ii, c. 100. defendant, the above cause is continued, and a com-
mission is awarded him to take the deposition of , of
, before any justice of the peace for said last mention-
ed county, upon the said defendant's giving the plaintiff five
day's notice of the time and place of taking the same, which
deposition, when taken, is to be read as evidence in the above
cause. Given under my hand and seal, this day of
18 [To be signed, &c.]
form of a commission to take a deposition.
"State of Tennessee.
To E F, Esq. an acting justice of the peace for county—Greeting:
Reposing special trust and confidence in your integrity and
skill in taking depositions between any parties whatever, I do
hereby commission, authorize and empower you to lake the de-
position of , of your county, in writing, to be signed by
him with his proper name, at such place as you shall direct, af-
ter swearing him to speak the truth, the whole truth, and no-
thing but the truth in the premises, which deposition, when taken,
is to be read as evidence in a certain suit pending before me,
wherein P Q is plaintiff, and R S defendant. When you have
so taken said deposition, you will please to seal it up and trans-
mit the same to me without delay. Given under the hand and
seal of C D, an acting justice of the peace for said county, and
8i;ate aforesaid. C D, [l.s.]
Form of a caption to a deposition.
S'iState of Tennessee,)
county,) ss'
By virtue of the annexed commission to me directed, from (1
D, Esq. an acting justice of the peace for county, I have
called and caused to come before me, at the house of
in county, for the purpose of taking his deposition
on behalf of the defendant, to be read as evidence in a certain
suit now pending before the said C D, wherein P Q is plaintiff
and the said R S is defendant; and the said being first
duly sworn and charged by me to speak the truth, the whole
truth, and nothing but the truth in the premises, deposes and
says, &c. [Here write down his deposition in the exact words
ACTIONS OF DEBT COMMISSIONS.
119
of the witness. If the witness writes a good hand, it is best for
him or her to write his or her answers to each interrogatory.—
After the same is finished, it should be read to the witness dis-
tinctly, and be approved and signed by him. That all being
done, the commissioner must make the following certificate:]
"I, E F, certify, that the above deposition of was taken
at the time and place mentioned in the caption, after the depo-
ncnt had been sworn; that the said deposition was read to him
and"heard throughout, and by him fully approved and signed;
and that the said deposition was not out of my possession until
the same was sealed up and directed to the said C D, Esq.—
Given under my hand and seal, this day of 18 ."
E F, [L.s.]
Justice of the Peace for county."
"When a deposition is sealed up, the commissioner ought to
write his name across each seal, to prevent the same from being
opened without the means of detection.
A justice of the peace has, by the act of 1811, chapter 100, a
right to issue a commission directed to a commissioner, who re-
sides out of the State, to take a deposition of a witness residing
out of the State. The notice to the opposite party must be as
the law directs.
THE TENNESSEE
JUSTICES' MANUAL,
AND CIVIL OFFICERS' GLIDE.
PART SECOND.
CRIMINAL DIVISION.
ORIGIN OF SOCIETY.
In presenting this division to the public, the author has thought
it his duty to lay before his readers a brief view of the rise
and progress of civil society, and, consequently, something of the
origin and force of human lazes.
Until long since the great deluge that drowned the old world,
we have no other knowledge of mankind than is given us in
the bible. But we are, by pretty authentic history, enabled to
sail back the stream of time to a period when mankind general-
ly were in a most wild, vagrant and savage state, solely depend-
ant on the chase, and the fruits of the forest, for a precarious subsis-
tence. All things were held in common, subject to the use of the
fir.-t occupant. Men were without society, without laws, or rules
of action, and, consequently, without property which they could
claim as their own. There was no principle of government ex-
cept that of force. The physically weak and impotent were de-
prived at pleasure of all they had by the strong. The cunning
and artful would, in a great degree, lord it over their less artful
152
CRIMINAL DIVISION.
neighbors. Their conditions, and relative situations, were as
fluctuating as the troubled surface of the sea; he that was lord
of the ascendant to day would be placed on the lowest spoke of
fortune's wheel to-morrow—until the wild principles of licentious
freedom were viewed as injurious, and even ruinous, to all. The
strong man, who would to day despoil his neighbor of a lovely
wife, a charming, innocent daughter—of his tent, his bow, his
lance, or the spoils of the chase—would to-morrow meet a strong,
er man, and in turn be deprived of all he held most dear himself,
Every man was in a state of insecurity and alarm at the move,
ments of his fellows. Mutual apprehension, distrust and fear per-
vaded every breast. The weaknesses, fears and wants of man.
kind, at first necessarily drove them into clans, associations, and
small societies, in which rules for the government of the individ-
ual members of each were formed, having relation more to their
defence and protection against their neighboring clans, than the
security of person or the property in the few things over which
any one could claim or exercise...an ownership. These clans or
associations gave rise to larger and more regular societies, in
which personal security and the right of occupancy in their tents
and in their personal property, was given to each. For no man
was, at this stage of society, considered to be the owner of any
thing real or personal, any longer than he was actually using it,
Before these clans, associations or societies were formed, all de-
pended on might, and not on right. The weak were subservient
to the strong in every thing. Mankind were in the same condi-
tion, in.a great degree, of brute beasts; governed by appetite,
instinct and strength. It was no crime to do any thing; for they
had no laws, and "without law there is no sin." And by their
licentious, brutal practices, they had so far debased their natures
that they had even obscured the light of nature, and therefore
were abominably ignorant, not even knowing their origin, or
what they were, more than other animals. But self-preservation
is an inherent law of nature, common to all animals; and this,
and but little more, was possessed by our depraved, savage an-
cestors. This principle occasioned them mutually to agree that
every man ought to part with the right to do with the persons or
property of others, as he pleased, without being restrained by su-
perior force; that it was a right, the exercise of which was found
ORIGIN OF SOCIETY.
153
by experience to be injurious to all, and that a penalty should be
attached to the violation of any one's person or property, while
they were in the actual use and occupancy of such property.—
They therefore made a rule of action by which all agreed to be
bound, and in which it was ordained that the members of the so-
ciety should be secure from violence to their persons, and adding
penalties to such violations. As society increased in numbers, they
also increased in their wants. An entire dependence on the fruits
of the forest, and the chase, were found to be of too uncertain a
character for a steady subsistence. Such society therefore be-
gun to domesticate certain animals, that they might be supplied
with milk and flesh for food. But these and all other things
were held in common. From these, and the forest stock, each
would take as much as his wants required. The indolent and
slothful fared as well as the industrious and vigilant. Complaints
aros»e, that one man labored all, and he that labored not, shared
equally with him the fruits of his industry. This state of things
soon begot serious discontents; and these little societies were
threatened with dissolution, and of being thrown into the wild-
t>t chaos again. But the more orderly and wise amongst them
restrained their violence towards each other, and prevailed on
them to amend their system of association, by parting with still
more of their privileges, for the better security of the more per-
mancnt and important of those that each individual ought to
retain to himself. Amongst other regulations, the community
of property was done away, and the rights of meurn et tunm (mine
and yours) were established. Men were to have now an abso-
lute property in severalty in things, instead of the property in
common, as was formerly the case. This new regulation gave
rise to more protecting and restraining rules, and denounced se-
vere penalties for a violation of them. Man begun to fee 1
his protection and his restraints, by the rules of the society of
which he was a member, and his relation to his fellows as such.
These rules, in the process of a few years, acquired the solemn
name of laws. The penalties attached to these laws chiefly
struck at such offences as society considered malum irise, (evils
in themselves;) but as society and commerce increased, it was
found indispensably necessary to declare many acts and things
offences against the common good, and to prohibit them by at
154
chiminai> division.
taching heavy penalties to a commission of any of them. Such
offences are called malum prohibitum, (evils, or wrongs prohi-
bited.)
Crimes and offences are commensurate with civil society; but
have increased in their number and character as society and
commerce have advanced. They are much more numerous and
highly penal in some countries than in others. In our own
country, crimes and offences are not numerous, nor the penalties
attached to them of a sanguinary character, since the passage
of our penitentiary code. It is possible that the length of pun-
ishment might be better apportioned by a careful revision; but
that could only be done by a very prudent and skilful legisla-
ture, as that system was digested, in a great degree, and entire-
ly drawn out in detail, by one of the ablest draftsmen in the
State.*
All criminal offences are divided into two classes, that is to say,
crimes and misdemeanors. A crime or misdemeanor, says Sir
William Blackstone, "is an act committed, or omitted, in viok'
tion of a public law, either commanding or forbidding it." This
general definition comprehends both crimes and misdemeanors,
which, properly speaking, are synonymous terms; though, in
common usage, the term crime is made to denote such offences
as are of a deeper or more atrocious dye, while smaller faults,
and omissions of less consequence, are comprised under the gen-
tier name of misdemeanors only.
MURDER.
This horrid crime is thus defined: "If any person of sound
Criminal code memory and discretion, unlawfully kill any reasona-
I829,c.23,52. kie creature in being and under the peace of the
State, with malice aforethought, either express or implied, such
person shall be deemed guiij[y of murder."
This general definition of murder involves four things, that is
to say:
*James Campbell, Esq. of Winchester, Tenn., then a Senator from
Franklin county.
MURDER FIRST DEGREE.
155
1. The killing must be committed by a person of sound mem-
ory and discretion, not an idiot, a lunatic, or a person of very
tender years; for the law considers all such doli incapax,(without
capacity to do wrong.) But if they are able to distinguish be-
tween right and wrong, and to know that murder is a crime
against the laws of God, and of the country, they are proper
subjects for conviction and punishment.
2. The killing must be without warrant or excuse. For a
sheriff to put a malefactor to death, under the condemnatory
sentence of a court of competent jurisdiction, is no crime; or,
where a man kills a robber who attacks him, it is excusable ho-
micide, and not murder.
?>. The person killed must be a reasonable creature in being,
and under the peace of the State. Therefore, to kill a child in
its mother's womb is not murder, but a great misdemeanor; but
if the child be born alive, and dieth by reason of the potion or
bruises it received in the womb, it is murder in such as adminis-
tered the poison or gave the wounds.
4. The killing must be with malice aforethought to make it
the crime of murder. This is the grand criterion which now
distinguishes murder from other killing; and this malice prepense
{maliiia precogitata) is not so properly spite or malevolence to the
deceased in particular, as any evil design in general, the dictate
of a wicked, depraved and malignant heart.
The crime of murder is divided by our ^legislature into two
classes, called first and second degrees. All killing under the
following circumstances, is murder in the first degree, that is to
say:
All murder which shall be perpetrated by means of poison, or
by laying in wait, or by any other kind of wilful, de- 1829 -c ^ ^
liberate, malicious and premeditated killing, or which
shall be committed in the perpetration of, or any attempt to per-
petrate, any arson, rape, robbery, burglary or larceny, in the lan-
guage of the statute, shall be deemed murder in the first degree.
That this definition may be better understood, I will endeav-
or to explain each member of it. The first member is, such
murder as shall be perpetrated by means of poison. Laying poison ■
for a person is such a cool, deliberate purpose of the heart, as to
leave no doubt as to the deep and deliberate malice that governs
156
CRIMINAL DIVISION.
the action, and, consequently, is murder. Or by laying in wait.—
Here also the cool, deliberate, reflecting purpose of the heart is
manifest. Or by any other kind of wilful, deliberate, malicious and
premeditated killing. I conceive the legislature intended all these
expletives to he taken conjunctively, and not separately, as some
contend. Let us test the accuracy of the view I have taken of
it. We will take the first expletive, wilful, thus, or any other kind
of wilful killing, and leave out the other words, and see if the
legislature designed each expression as the substantive feature
of a separate crime of murder. Wilful killing, Can any re-
fleeting man suppose that the legislature would think of making
every act of wilful killing, murder? If so, you must not kill the
highwayman who has his pistol at your breast, or his bludgeon
drawn over your head,- because if you kill him, (unless it is the
result of accident) it must be by design, which shows the purpose
of the will, and therefore you must be hung for it. Let us try
it a little further with our highwayman, and see how the mat-
ter will stand. Or by any other kind of wilful and deliberate killing.
We now take two of the expletives, A man is riding along the
road in a suspected place for robbers, and he sees a man passing
through the woods in a direction obviously to intercept him at a
particular point of the road, and from the actions of the man it
is rendered next to certain that he is a highwayman; and the
traveller takes out his pistol and picks the flint and puts into the
pan fresh priming, that his pistol may not miss fire, with a deter-
mination to kill the robber if he attempts to make an attack up-
on him; and he deliberates and reflects upon the mode by which
he will kill the highwayman. His plan is now fixed in his mind,
and on he goes, and when he arrives at a particular place, out
steps the highwayman and seizes his horse by the bridle to stop
him, and presents his pistol and demands the traveller's money;
and the traveller, in pursuance of his plan, manifests great tre-
pidation, and cries out, don't shoot me and you shall have all,
and pulls out his pocket book and throws it on the ground, at
the fellow's feet, for the purpose of making him stoop to pick it
up, and the highwayman does stoop to pick up the pocket book,
and while he is stooping, the traveller shoots him dead. Can you
conceive an act done more wilfully and deliberately, and yet is
there a man so stupid as to believe the legislature designed any
MURDER FIRST .DEGREE.
157
such wilful and deliberate killing to be murder? I need not run
out this exposition any further, for all must see that these terms or
expletives must be taken conjunctively, and not separately, to
make out the offence of murder. Or by any other kind of zvilful,
dt Iih rate, malicious and premeditated killing, fyc. To make out a
killing murder of the first degree, under this definition, I not on-
ly conclude that all these expletives must be taken conjunctive-
ly, but each must be employed in the composition of the offence.
14. It must be done wilfully, not by accident, or the like, but
with a mind and a desire to kill. 2d. It must be done delib-
crate ly; that is, with reflection, by conning the act design-
ed to be done over in the book of the mind, so as to understand
it in all its parts and forms. 3. It must be done with pre-
meditation; that is, with reason and cogitation between the con-
ception and execution of the design. 4th. It must be done ma-
liciou4y; that is, where one with a sedate, deliberate mind, and
formed design, doth kill another. This formed design must be
idenced from external circumstances, discovering the inward
purpo-.es of the heart. Antecedent menaces, former grudges,
and concerted schemes to do some great bodily harm, are the
leading features of legal malice.
r> o
Form of a warrant in the name of the State* commonly called a
states zearrant, against a party charged with the crime of murder in
tin first digrce.
'•State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
"Whereas, A B, of said county, has this day made information
on oath, before me, J B, an acting justice of the peace for said
counfv, that one C D, late of said county, laborer, not having the
fear of God before his eyes, but being moved and seduced by
the instigation of the devil, at in the county aforesaid, on
the day of in the year of our lord with force
and arms, in and upon one E F, in the peace of God and of
the Slate then and there being, feloniously, wilfully, and of his
malice aforethought, did make an assault, with a certain dirk
or dagger, made of iron and steel, of the value of two dollars,
*A11 process in criminal cases must run in the name of the State. See
Constitution, article 5, section 9.
158
criminal division.
which he, the said C D, in his right hand had and held, him,
the said E F, in and upon the right side, and to the right of and
below the lobe of the right breast of him, the said E F, then
and there feloniously, wilfully, and of his malice aforethought,
did strike, stab and penetrate, giving the said E F, then and
there, with the dirk or dagger aforesaid, in and upon the right
side, and to the right of and below the lobe of the right breast
of him, the said E F, one mortal wound of the breadth of one
inch, and of the depth of eight inches; of which said mortal
wound, he, the said E F, then and there instantly died, [if that
be the fact; but if the deceased lived for some time, then say, in.
stead of ''instantly died," "in the county aforesaid, from the
day of in the year aforesaid, did languish, and Ian-
guishingly did live, to the day of in the year
on which last day he, the said E F, at in the county afore-
said, of said mortal wound did die."] These are, therefore, in the
name of the State, to command you to take the body of the said
C D, if to be found in your county, and bring him forthwith
before me, or some other justice of the peace for said county, to
answer the premises, and to be dealt with as the law directs.—
Herein fail not. Given under my hand and seal, this
day of A. D. 18 ." [To be signed, &c.]
The warrant will be the same in the first and second degree*
of murder, and the examination and mittimus the same.
Note.—I will here state it as a rule not to be departed from
in any criminal case, that the warrant must be written out at
full length, and filled up, leaving no blanks to be filled up after-
wards. The warrant must charge the defendant with some spe-
cific crime, not two or three crimes, or one of two crimes; and
the warrant must be made under the hand and seal of the justice
issuing it. 2 Hawk. P. C. 136. 1 Hale,577. 2 Hale, 111. 3In-
stitutes, 76. Halt. c. 119. This subject will be more fully di~
cussed hereafter.
When the officer has arrested the. defendant named in the
warrant for murder, he must be particular to keep him so that
he may have his body before the justice of the peace, as com-
manded in the warrant. He, therefore, is authorized to summon
a reasonable number of persons as a guard to assist him in taking
the prisoner to the justice of the peace, and to guard him while
MUKDEH FIRST DEGREE.
there, &c.; and all persons so summoned are bound to obey such
summons, and the subsequent commands of the officer, under pen-
alty of fine and imprisonment. It is the officer's duty to carry
the prisoner forthwith before the justice of the peace.
When the prisoner is brought before the justice, he is entitled
(upon demand) to process of subpoena, to compel the attendance
of any witness who may be found in the county where the of-
fence was committed, or the party arrested. A justice's subpoe-
na cannot have effect beyond the county in which he resides.
Form of the subpoena.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
You are hereby commanded instantly to summon I J person-
ally to appear before me, on this day, at my own house, in the
county aforesaid, to testify, and the truth to speak, on behalf of
the defendant, in a certain case wherein the.State of Tennessee
is plaintiff, and C D is defendant, on a charge of murder, which
he shall in nowise omit, under the legal penalty. Herein fail not.
Given under my hand and seal, this day of A. D.
18 ." [To be signed, «fcc.]
A subpoena for witnesses on behalf of the State is the same in
every respect, except that the word defendant, where it first oc-
curs, must be omitted, and the word State inserted.
When the prisoner is first brought before the justice of the
peace, he should immediately proceed to examine him person^
ally as to the commission of the offence, after having, read the
warrant to the prisoner, thus: "C D—You stand charged with
the crime of murder, in the words following:" here read the
warrant to him ;. then say, "are you guilty or not guilty thereof?"
Record his plea guilty or not guilty, as the answer may be.—
Then proceed with the examination of the prisoner, after warn-
ing him to speak the truth, and that he need not be alarmed;
that if he should manifest his innocence, he may expect an
acquittal, but if, on the other hand, his guilt should be made
out, he ought not to hope for any favor other than a fair, speedy
and impartial trial by the laws in force and in use in the state.
The statement of the prisoner ought to be put down in the ex-
amination, in the precise words of the prisoner; and after the
»ame is all written, it ought to be read over to him, and be ap-
160
CRIMINAL DIVISION.
proved and signed by him. The prisoner is not to be sworn, u,.
is he to be forced to make any confessions.
Form of the examination of the defendant.
"State of Tennessee,)
.county,5
The examination of C D, of the county of taken befor,
me, G H, an acting justice of the peace for said county, on th
day ol in the year of our Lord one thousand
hundred and the said C D being brought before me by -
lawful warrant, procured at the instance of one A B, of th
county last aforesaid, planter, and by him here charged of munk
in the first degree, in murdering one E F, late of said counh.
Upon his examination before me, the said defendant confesse>
and states: [here insert the prisoner's own words verbatim, anj
none other; or if he refuse to give any account of the matter,
or states that he was elsewhere, and deny, any knowledge 01
the crime, put them down in the words of the prisoner, and
require him to sign it, thus, A B; then close the examination
thus:] Taken before me, the day and year above written.
(See act of 1715, ch. 16, sec. 1.) G H."
The examination of the witnesses, for and against the prison-
er, must be taken in his presence, and subject to his examina-
tion or cross examination, or that of his counsel; and the samt
is to be recorded at full length by the examining justice, before
whom the same is taken. The statement of each witness, when
completed, should be read by him, or it should be read to him,
and be approved and signed with his name, and in his own hand,
if the witness can write, and if not, his name ought to be written
by the justice of the peace, and the witness required to make
his mark to his name. See act 1715, ch. 16,sec. 1.
Form of the examination of a witness.—"The examination of I
J, a witness on behalf of the State, in the case of the State against
C D, upon a charge of murder in the first degree, in murdering E
F, taken and had before me, in the presence of the said C D, on
the day of in the year of our Lord one thousand eight
hundred and at, to wit, in the county of and State of Ten-
nessee. Thejsaid I J being duly sworn on the holy gospels,
and by me charged to tell the truth, the whole truth, and noth-
MURDER—FIRST DEGREE.
161
ing but the truth, deposeth and says"—[here state the evidence
in the language of the witness.]
Each examination of a witness must be signed by him, and
attested by the justice of the peace, who will conclude the whole
thus: "and here the testimony closed;" and then add: "Itis con-
sidered by me, that the said C I) is guilty of the crime of mur-
der in the first degree, as charged in the warrant here exhibited
against him, and therefore that he be committed to be further
dealt with as the law directs." [To be signed, &c.]
Form of the mittimus or commitment.
"State of Tennessee,)
county,) ss'
G II, one of the justices of the peace for said county, to the
sheriff or keeper of the common jail of the county aforesaid,
greeting: Whereas, C D, late of said county, laborer, has been
arrested by virtue of a State's warrant, by a lawful offi-
cer for said county, upon a charge of murder in the first degree,
as exhibited in said warrant, procured on the oath of one A B, of
said county, and brought before me, and here charged by the
said A B in substance as follows: That the said C D, late of the
county of laborer, not having the fear of God before his
eyes, but being moved and seduced by the instigation of the
Devil, at in said county, on the day of in the
year of our Lord one thousand eight hundred and , with
force and arms, in and upon E F, in the peace of the State then
and there being, feloniously, wilfully, and of his malice afore-
thought, did then and there make an assault, with a certain dirk
or dagger, made of iron and steel, which he, the said C D, in his
right hand had and held, him, the said E F, in and upon the right
side, and to the right of and below the lobe of the right breast
of him the said E F, then and there feloniously, wilfully, and
of his malice aforethought, did strike, thrust, stab and penetrate,
giving to the said E F, then and there, with the dirk or dagger
aforesaid, in and upon the right side, and to the right of and be-
low the lobe of the right breast of him the said E F, one mortal
wound, of the breadth of one inch, and of the depth of eight
inches, of which said mbrtal wound he, the said E F, then and
there instantly died. Whereupon, the said C D has been care-
fully examined before me, and the witnesses on behalf of the
y
criminal division.
State, and on behalf of the prisoner, have also been heard and
fully examined by and before me, in the presence of the said C
D, and concerning the same, and the respective examinations
recorded by me; and from said examinations, so taken as afore-
said, and now before me, there is no doubt left with me that the
said C D is guilty thereof. These are therefore to command you,
to receive said C D into your custody in the said common jail,
there to remain safely and securely until he be delivered from your
custody by due course of law. Given under my hand and seal,
this day of 18 ." [To be signed, &c.]
When the justice of the peace who holds the court of enquiry,
is of opinion the prisoner ought to be committed, he should im-
mediately proceed to bind the prosecutor to appear and prose-
cute the prisoner, in the form following:
prosecutor's recognizance.
"State of Tennessee,)
county,5 SS'
Be it remembered, that on this day of in the
year of our Lord one thousand eight hundred and at,
to wit, in the county aforsaid, A B, planter, came before me, G
H, an acting justice of the peace for the county aforesaid, and
acknowledged himself to stand justly indebted to the State of
Tennessee, in the sum of five hundred dollars, to be levied of
his goods and chattels, lands and tenements, and to be void only
on condition that he shall make his personal appearance at the
circuit court of the county aforesaid, to be holden at the court
house in the town of in said county, on the Monday
of next, then and there to prosecute a certain C D, who
is this day committed for the crime of murder, and not depart
said court without leave thereof first had and obtained, with
which the said A B is content, and manifests the same by sub-
scribing his name hereunto. A B, [l.s.]
Test, G H, Justice of the Peace"
The witnesses must be recognized to appear and give evidence
at court.
Form of a recognizance for a witness.
"State of Tennessee,)
county,5 SS'
Be it remembered, that I J, a witness in behalf of the State,
murder second degree.
163
came before me, G II, an acting justice of the peace for said
county, on the day of 18 , at, to wit, in the
county aforesaid, and acknowledged himself indebted to the State
of Tennessee in the sum of two hundred and fifty dollars, to be
levied of his goods and chattels, lands and tenements, to be
void only on condition that he make his personal appearance
before the circuit court of said county, to be holden in the court
house in the town of in said county, on the Monday
of next, then and there to testify, and the truth to speak
on behalf of the State, in the case of the State against C D,
upon a charge of murder, and not depart said court without
leave first had and obtained, with which the said I J is content,
and manifests the same by subscribing his name hereto.
Attest, G II, Justice of the Peace. I J,
The recognizance, however, is equally good without being
subscribed by the person who enters into it.
These forms may be so modified as to suit any kind of cases;
but I will give a few more in this division. These may suffice
for the first and second degrees of murder.
Note.—Persons guilty of either the first or second degrees of
murder, are not bailable.
Every person convicted of the crime of murder in the first
degree, or as accessary to the fact before the crime, shall suffer
death by hanging.
Murder in tiie second degree, is thus described in our pe-
nal code: "and all other kinds of murder shall be deemed mur-
der in the second degree," viz. all others than such as are descri-
bed in those declared to be murder in the first degree, and may
be thus defined: "Wherever a man kills another, upon a slight
provocation, in such a cruel manner, or under such circumstan-
ces as show the heart regardless of social duty, desperately
wicked, and fatally bent on mischief." Penal laws, Act of 1829,
ch. 23, sec. 3.
As many intelligent persons, when considering the facts and
circumstances attendant upon the killing of a human creature,
will blend together envy, hatred and malice, and in many in-
stances create difficulty in arriving at the true idea of the of-
fence, I will endeavor to lay down the distinctions between
them. Envy, properly speaking, is the repining at the happiness
IG4
criminal division.
and prosperity of another. Hatred, is the feeding and nursing
an envious feeling and disposition, until it shall corrode the
heart and rankle in the bosom of its possessor, and make him
miserably grudge his adversary his existence. Malice, (may
and frequently docs include both the former) is a thing done
malo animo; i. e. with a wicked mind. Therefore, malice is not
so much spite and ill-will to particulars, as any pre-conceived,
formed evil design in general, the dictate of a wicked, depraved
and vicious heart; an action flowing from a wicked, cruel and
corrupt motive. "And the jury before whom any person indict-
ed for murder shall he tried, shall, if they find such person
guilty thereof, ascertain in their verdict, whether it be murder
in the first or second degree; hut if such person shall confess his
guilt, the court shall proceed by empannelling a jury, and exam-
ine testimony to find and determine the degree of the crime,
and to give sentence accordingly."
"Every person convicted of the crime of murder in the se»
cond degree, shall be sentenced to undergo imprisonment in the
public jail and penitentiary house established in this State, for a
period not less than two, nor more than twenty-one years." See
Penal laws, Act 1829, ch. 23, sec. 5.
"Manslaughter, is the unlawful killing of another, without
malice, either express or implied, which may be either volunta-
ry, upon a sudden heat, or involuntary, but in the commission
of some unlawful act." Penal laws, sec. 6.
This offence is divided into two classes: 1st. Voluntary: and
2d. Involuntary.
1st. Voluntary manslaughter presumes that the slayer intend-
ed some bodily hurt to the deceased. It is therefore necessary
to consider under what circumstances it may be presumed that
the act was done, through intention of causing death or great
bodily harm, or was the result of a cool, deliberate judgment
and a previous malignity of heart, or imputable to human frail-
ty alone; as where death ensues from a transport of passion, or
sudden heat of blood, if upon a reasonable provocation, and
without malice, it would he manslaughter only. And as to
what shall he considered a sufficient provocation, or cause to
create a gust of uncontrolable passion accompanying each par-
ticular case, the law can only lay down a general rule in rela-
MANSLAUGHTER.
165
tion to it. The law requires the provocation to be of such a
nature as likelj to heat the blood, and rouse the passion of an-
ger of a prudent, reasonable man to such a height as to deprive
him of the right use of his reason for the time, to reduce the
killing from murder to manslaughter. And it is not material
whether it flows from words or actions; but mere words of re-
proach, or insulting actions or gestures of a contemptuous char-
acter, are not, in general, sufficient to reduce the killing from
murder to manslaughter, where a weapon has been used from
which death would be likelj to ensue, or where the party killing
otherwise manifested a determination to kill his adversary.
2. Involuntary manslaughter, has no intention of killing any
human creature; but does suppose the party killing did intend
to commit some unlawful act, a breach of the peace merely: as
where a man threw a small cudgel at H, not intending to kill
him, but barely to hurt him for some insolence, and it should hit
B in the temple and kill him; here the act towards B would
be entirely involuntary, but it would happen in consequence of
an unlawful act, and therefore be manslaughter.
Form of a warrant for manslaughter.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, A B, of the county of t planter, has this day
made information and complaint upon oath, before me, H G, an
acting justice of the peace for said county, that C D, late of
said county, yeoman, not having the fear of God before his eyes,
but being moved and seduced by the instigation of the Devil, on
the day of in the year of our Lord one thousand
eight hundred and and at in the county aforesaid,
with force and arms, in and upon one E F, in the peace of the
State then and there being, unlawfully and wilfully did make
an assault; and that the said C D, with a certain large stone of
two pounds weight, which he, the said C D, in his right hand
then and there had and held, him, the said E F, in and upon
the left side of the head of him, the said E F, then and there
unlawfully and wilfully did strike and hit, giving unto the said
E F, then and there, with the stone aforesaid, in and upon the
left side of the head of him, the said E F, one mortal wound
and bruise, of the width of two inches, and the length of three
166
CRIMINAL DIVISION.
inches, of which said mortal wound and bruise he, the said E F.
at in the county aforesaid, from the day of
in the year aforesaid, until the day of in the county
aforesaid, did languish, and languishingly did live, on which said
day of in the year aforesaid, the said E F, at
in the county aforesaid, of the said mortal wound and
bruise, did die. These are therefore to command you, in the
name of the State, to take the body of the said C D, if to be
found in your county, and bring him before me, or some other
justice of the peace for said county, to answer the premises, and
to he dealt with as the law directs. Herein fail not. Given
under my hand and seal, this day of in the year of
our Lord one thousand eight hundred and ." [To be
signed, &c. officially.]
This form of warrant will suit both voluntary and involuntary
manslaughter.
The directions to the officer in making the arrest, &c., and the
mode of examinination of the prisoner, and the witnesses, is the
same in this as in all other criminal cases, as pointed out in the
case of murder. The subpoenas for witnesses for the State, and
the defendant, are the same in this and all other criminal ca-
ses, (except the name of the offence,) and are the same with the
form in the case of murder.
There is one feature in this offence that distinguishes it from
murder more particularly than any other, before the court of
enquiry, or justice's court: that is, when it is ascertained that
the offence amounts to nothing more than manslaughter, that
the prisoner is entitled to bail for his appearance at court to
stand his trial.
When the justice has gone through the examination of the
prisoner and witnesses, and is of opinion that he must give bail
for his appearance, or be committed for his trial, and the priso-
ner tender such security as the justice will approve, he ought
to take a joint recognizance of the prisoner and his security, of
the form following, viz.
''State of Tennessee,)
county,j ss'
Be it remembered, that on the day of in the
year of our Lord 18 C H, the prisoner in custody, and I J
MANSLAUGHTER.
167
and L M, his securities, came personally before me, G II, an act-
ing justice of the peace for said county, and acknowledged
themselves to be justly indebted to the State of Tennessee, that
is to say, the said C D in the sum of two thousand dollars, and
the said I J and L M jointly in the sum of two thousand dollars,
to be levied of their respective goods and chattels, lands and
tenements, but to be void if the said C D shall make his personal
appearance before the judge of the circuit court, at a court to
be holden for said county, at the court house in the town of
on the Monday of next, then and there to
answer the .Slate of Tennessee upon a charge of manslaughter,
for slaying one E F, and to stand to and abide by, such sentence
as shall be pronounced against him in the premises, and not to
leave said court until discharged by due course of law. Ac-
knowledged before me, the day and date above written. [To
be signed, &c. officially.]
The justice should then proceed to recognize the prosecutor,
and if he be a witness as well as a prosecutor, thus:
KState of Tennessee,)
county,) ss'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and A B came
personally before me, G II, an acting justice of the peace for
said county, and acknowledged himself to be justly indebted to
the State of Tennessee in the sum of five hundred dollars, to be
levied of his goods and chattels, lands and tenements, but to be
void if the said A B shall make his personal appearance before
the judge of the circuit court, at a court to be holden for said
county, in the town of in said county, on the
Monday of next, and then there to prosecute one C D
for the crime of manslaughter, and give evidence on behalf of
the State, in the case of the State against the said C D, for the
crime aforesaid, and not depart the said court without leave
first had and obtained. Acknowledged before me, the day and
date above written. » [To be signed, &c.]
The form given for the witness' recognizance in the case of
murder, may easily be applied, as I have already said, to any
other kind of cases; but as that form required the witness to
168
CRIMINAL DIVISION.
subscribe the same as an evidence that he had acknowledged itt
I will here give the form of another recognizance, in the mo.-;
usual form:
"State of Tennessee,)
county,} SSm
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and "person-
ally came before me, G H, an acting justice of the peace for
said county, I J, and acknowledged himself justly indebted to the
State of Tennessee in the sum of two hundred and fifty dollars,
to be levied of his goods and chattels, lands and tenements, but
to be void if the said I J shall make his personal appearance
before the judge of the circuit court, at a court to be holden for
said county, at the court house in the town of on the
Monday of next, then and there to give evidence
on behalf of the State, in the case of the State against C D,
for manslaughter, and not depart said court without leave first
had and obtained thereof. Acknowleged before me, the day
and date above written." [To be signed, &c.]
But if the prisoner fail to tender such security as shall be ap-
proved by the justice of the peace, the commitment will be of
the form following:
"State of Tennessee,)
county,} SS*
G H, an acting justice of the peace for said county, to the
sheriff, or keeper of the common jail, greeting: Whereas C D,
late of said county, has been arrested by virtue of a state's
warrant, by a lawful officer for said county, upon a charge
of manslaughter, as exhibited in said warrant procured, on the
oath of A B, of said county, and brought before me, and here
charged by the said A B, in substance, as follows: "that the
said C D, late of said county, yeoman, not having the fear of
God before his eyes, but being moved and seduced by the insti-
gation of the Devil, on the day of in the year of
our Lord one thousand eight hundred and at in the
county aforesaid, with force and arms, in and upon one E F, in
the peace of the State then and there being, unlawfully and
wilfully did make an assault, and that the said C D, with a cer-
tain large stone of two pounds weight, which he, the said C
MANSLAUGHTER.
169
I) in Lis right hand then and there had and held, him, the said E
F, in and upon the left side of the head of him, the said E F, then
and there, unlawfully and wilfully, did strike and hit, giving un-
to the said E F, then and there, with the stone aforesaid, in
and upon the left side of the head of liirn, the said E F, one
mortal wound and bru'se, of the width of two inches, and the
length of three inches, of which said mortal wound and bruise
he, the said E F, at in the county aforesaid, from the
day of in the year of our Lord one thousand eight
hundred and until the day of in the county
aforesaid, of the said mortal wound and bruise did languish, and
languisbingly did live, on which said day of in the year
aforesaid, the said E F, at in the county aforesaid, of said
mortal wound and bruise did die: whereupon the said C D has
been carefully examined before me, and witnesses, as well 011
behalf of the State a3 of said prisoner, have also been fully and
carefully examined by me, in the presence of the said pris-
oner, of and concerning the said charge, and their examina-
tions being taken in writing, and-recorded by me; and from said
examinations, so taken as aforesaid, and now before me, there is
no doubt left with me as to the prisoner's guilt: I therefore
demanded of him recognizance and good security in the sum of
two thousand dollars, for his appearance at our next circuit
court, and he failing to tender such security, these are therefore
to command you to receive the said C D into your custody, in
the common jail of said county, and there to remain safely un-
til he be delivered from your custody by due course of law.—
Ghen under my hand and seal, this day of A. D.
18 [To be signed, &c. by the justice.]
"Whoever shall be convicted of the crime of voluntary man-
slaughter, shall undergo confinement in the said jail and peniten-
tiary house for a period not less than two, nor more than ten
} ears." Penal laws, Act 1829, ch. 23, sec. 7.
"Whoever shall be convicted of involuntary manslaughter,
shall undergo confinement in said jail and penitentiary house for
a period not less than one, nor more than five years." Act 1829,
ch. 23, sec. 8.
W
170
CRIMINAL, DIVISION.
ARSON, OR HOUSE-BURNING.
This crime is thus defined by our penal code: "Any person
who shall wilfully and maliciously burn the house, or out-house
of another, shall be deemed guilty of arson." Act 1829, ch. 23,
see. 9.
To constitute this crime, the burning, must not only be wilful,
but it must be also malicious. This implies the consent of the
owner to be wanting. A man may "burn the house or out house
of another," wilfully, by the owner's consent; but the burning
cannot be done maliciously by such consent. This offence can
not be the result of accident, but must be the effect of design.
And the words, "house or out-house," include every species of
house that a man can be the owner of.
Form of a warrant for arson.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, A B, of said county, carpenter, has made complaint
upon oath, this day of. in the year of our Lord
one thousand eight hundred and before me, G H, an
acting justice of the peace for said county, that one C D, late
of said county, laborer, being an evil-disposed and wicked per-
son, with force and arms, on the day of in the year of
our Lord one thousand eight hundred and did wilfully
and maliciously set fire to, and burn the dwelling house of him
the said A B, with an intent to burn and destroy the same,
and did there consume the same in whole, [or in part, as the
case may be.] These are therefore to command you, to take the
body of him, the said C D, if to be found in your county, and
forthwith bring him before me, or some other justice of the peace
for said county, to answer the premises, and to be dealt with as
the law directs. Given under my hand and seal, the day and
date above written." [To be signed, &c. by the justice.]
The warrant ought always to describe the house, as dwelling
house, barn, stable, kitchen, corn crib, smoke house, or the like.
The same mode of examination must be pursued, and the whole
recorded, as in the case of murder. The least burning of the
house will be sufficient to make out the crime of arson.
ARSON.
171
If the justice should believe the prisoner to be guilty of the
crime of arson, he will then require him to enter into recogni-
z mce, with good and sufficient security, for his appearance at
the next circuit court for the county where the crime was com-
miffed, and on failure to give such security, to commit him.—
This is a bailable offence.
r>nn of th« }\ nrrnizaacc of the prisoner and his securities.
"State of Tcnno«ee.)
. } ss.
county,)
Be it rememb -red, that on the day of in the
year of our Lord one thousand eight hundred and C D,
laborer, ond I J and L M, laborers, of the county aforesaid,
personally appeared before me, G II, an acting justice of the
peace for said county, and acknowledged themselves to be just-
ly indebted to the State of Tennessee, that is to say, the said
C I) in the sum of fifteen hundred dollars, and the said I J and
L M in the sum of seven hundred and fifty dollars each, to be
le\ied of their respective goods and chattels, lands and tene-
inenfs; but to fie void on condition that the said C D make his
ptrsmal appearance before the judge of the circuit court, at a
cou-t to be holden for said county, at the court house in the
town of on the Monday of next, then and
thereto answer the State of Tennessee upon a charge of house
burning, in burning the dwelling house of one A B, and to stand
to, and abide by such sentence as shall be rendered against him,
and not depart said court without leave first had and obtained.
Acknowledged before me, the date above written." [To be
signed, &:c. officially.]
Form of the recognizance of the prosecutor.
"State of Tennessee,)
county,) 85'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and A
B personally appeared before me, G H, an acting justice of the
peace for said county, and acknowledged himself to be justly
indebted to the State of Tennessee in the sum of five hundred
dollars, to be levied of his goods and chattels, lands and tene-
ments; but to be void on condition that he make his personal
appearance before the judge of the circuit court, at a court to
172
CRIMINAL DIVISION.
be holden for said county, at the court house in the town of
in said county, on the Monday of next, then
and there to prosecute CD on a charge of arson, for burning
the dwelling house of said A B, and not depart said court with-
out leave thereof first had and obtained. Acknowledged before
me, the date above written." [To be signed, &c.]
"Every person convicted of arson, shall undergo confinement
in said jail and penitentiary house for a period not less than five,
nor more than twenty-one years." Act 1829, ch. 23, sec. 10.
"Every person who shall wilfully and maliciously burn or set
fire to any house or building in a town or city, or procure said
offence to be committed, shall undergo confinement in the pub-
lie jail and penitentiary house for a period not less than five,
nor more than twenty-one years." Act 1829, ch. 23, sec. 11.
"Every person who shall wilfully, unlawfully and maliciously
burn, or set fire to any house, barn, stable, or other valuable
building, or any building containing valuable property, or any
stack of grain, fodder, straw, or hay, or any valuable bridge,
boat or water craft, or who shall procure any of said offences to
be committed, shall undergo confinement in said jail and peni-
tentiary house for a period not less than two, nor more than
twenty-one years." Act 1829, ch. 23, sec. 12.
All three of the expletives used in the last mentioned section,
must be made cut in the commission of any of the offences in
this section; that is to say, the burning must be done wilfully,
that is, not by accident, neglect, or the like, but by intention
and design. It must be done unlawfully; that is, without any
permission, consent, warrant or authority from the owner. And
it must be done maliciously; that is, with an evil or wicked de-
sign to injure the proprietor, arising from hatred, odium, or ill-
will to the owner, or any member of his family; or where the
act flows from a wanton, wicked spirit and evil heart. The in-
tent or design of committing the offence must, in a great meas-
ure, be gathered from the facts and circumstances of each par-
ticular case. 1 Hale, 5G9. 3 Inst. 67. Plow. 475. 3 Chit. C. L.
1109.
The setting of fire to a house, out house, stack of corn or hay,
if the fire went out without burning any part of them, did not
complete the offence by statute 9 Geo. I. ch. 22, sec. 1; but
ARSO.V.
173
our statute is differently worded, and by the words, "or set fire
to,*1 it seems the legislature designed to make the act of setting
the fire to any of the subjects mentioned in the statute, a crime.
Sarah May's case, O. 13. 17G1. I Hale, 570. 3 Inst. 66. 3 Chit.
C. L. 1100-10, ftsep
It is not, therefore, very material to enquire as to the quantum
of the burning, except as to the aggravation of the offence.
Form of a warrant for burning a stack of wheat.
"State of Tennessee.) ss.—To any lawful officer to execute and
county,) return:
Wh< Teas, A 13, planter, has made complaint on oath, this
day of in the year of our Lord one thousand eight
hundred and before me, C D, an acting justice of the
peace for said county, that one E F, late of said county, "black-
smith, being an evil-disposed and wicked person, with force and
arms on the day of in the year aforesaid, at, to wit,
in the county aforesaid, did then and there wilfully, unlawfully,
and maliciously set tire to, and burn a stack of wheat, standing
stacked up in the sheaf, the property of him the said A B,
with an intent then and there to burn and destroy the same.
T1 ie«e are therefore to command you to take the body of him,
the said E F, if to be found in your county, and him forthwith
bring before me, or some other justice of the peace for said
county, to answer the premises, and to be dealt with as the law
directs. Given under my hand and seal, the day and date above
w ritlen/' [To be signed, &c.]
Form of the recognizance of the prisoner.
"State of Tennessee,)
county,) SS'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and per-
sunnily appeared E F, G II and I J, before me, C D, an acting
justice of the peace for said county, and acknowledged them-
selves to stand justly indebted to the State of Tennessee, that is
to say, the said E F in the sum of two thousand dollars, and
the said G II and I J, jointly, in the sum of two thousand dol-
lars, to be levied of their respective goods and chattels, lands
and tenements; but to be void on condition that the said E F
make his personal appearance before the judge of the circuit
174
CRIMINAL, DIVISION.
court, at a court to be liolden for said county, on the
Monday of next, then and there to answer the Slate of
Tennessee upon a charge of wilfully, unlawfully, and malicious
ly setting fire to, and burning a stack of wheat, the property ot
one A B, and to abide by such sentence as may- be pronounced
against him, and not depart said court without leave thereot
first had and obtained, or until discharged by due course of law.
Acknowledged before me, the date above written," [To be
signed, A c.]
If the prisoner should fail to give the requisite security, he
must be committed to jail; and in such case, the mittimu:
must be the same in form as that for burning the dwelling
O 0
house.
Recognizance of the prosecutor.
"State of Tennessee,)
county,) SS'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and per-
sonally appeared A B before me, C D, an acting justice of the
peace for said county, and acknowledged himself to stand just-
ly indebted to the State of Tennessee in the sum of five hund-
red dollars, to be levied of his goods and chattels, lands and
tenements; but to be void if the said A B-shall make his person-
al appearance before the judge of the circuit court, at a court
to be holden for said county, on the Monday of
next, at the court house in the town of in said
county, then and there to prosecute one E F, for the crime of
wilfully7, unlawfully, and maliciously setting fire to, and burn-
ing a stack of wheat, the property7 of him the said A B, and
not depart said court w-ithout leave thereof first had and ob-
tained. Acknowledged before me, the date above written."—
[To be signed, &c.]
• RAPE.
"Rape is the unlawful carnal knowledge of a woman, forci-
bly, and against her will. Carnal knowledge is accomplished
by the commencement of a sexual connection; proof of the cir-
RAPE.
175
cumstance which usually terminates it, is not required." Act of
1829, ch. 23, sec. 13, 14.
"Whoever shall commit the crime of rape, shall undergo
confinement in said jail and penitentiary house for a period not
less than ten nor more than twenty-one years."
"If any person shall unlawfully and carnally know and abuse
any female child, under the age of ten years, he shall undergo
confinement in said jail and penitentiary house for a period not
less than ten nor more than twenty-one years." Act 1829, ch.
23, sec. 15.
Under this section, as well as at the common law, the act
done must be forcible, and against the worfian's will. There
must be an entry, or penetration, that is, rem in re; but the of-
fence will be complete upon the least entry or penetration, and
our statute dispenses with proof of the emission. 2 Inst. 180.
3 Inst. 59. 1 Ilale, G28. 1 Haw. 1C9.
Offences of this nature are not any way mitigated by show-
ing that the woman at last yielded to the violence, if such her
consent was forced by fear of death or duress. 1 Hale, 628,731.
Finch, 201. 1 Haw. 170. Nor is it any excuse that she consent-
ed after the fact. Rush. Col. part 2, 100. 1 Haw. 170. Or that
she was a common strumpet; for even a common prostitute is
under the protection of the law. 1 Dalt. C. 105. Brae. 607.—
Nor is the offence extenuated in consequence of the woman con-
ceiving from the act. Bract. 628,731. 1 Haw. 170.
It is a strong, though not a conclusive presumption against
the woman, if she made no complaint in a reasonable time
after the fact. 1 Hale, 630, 633. 1 Haw. 170.
But upon an indictment for a rape perpetrated on a woman
child, as they are called by the statute 18 Eliz. ch. 7, or female
child, by our statute, under ten years of age, it is no way ma-
tcrial whether such child consented or not, or was forced. Cr.
Cir. Com. 456. 3 Bur. 1696. Cro. Car. 332. Yet if the party be
indicted for the carnal knowledge of such an one, it must be
proved that he did penetrate her; but the least entry will be
sufficient.
All who are present, aiding and abetting a man to commit
either of the kinds of rape here pointed out, whether they be
176
CRIMINAL DIVISION.
men or women, are guilty of the crime. 1 Haw. 170. Hale, 115.
Halt. 107.
Form of a warrant in Rapz upon a woman.
"State of Tennessee.) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint is made upon oath by A H, late of said
county, planter, before me, G A, an acting justice of the peace
for said county, on this day of in the year of our
Lord one thousand eight hundred and that one C D, late
of said county, yeoman, not having the fear of God before lii>
eyes, nor regarding social relations or good opinions of society,
hut being moved and seduced by the instigation of the Devil, on
the day of in the year of our Lord one thousand
eight hundred and at, to wit, in the county aforesaid,
with force pnd arms, an assault did then and there make, upon
the body of one E F, late of said county, spinster, and then and
there unlawfully, feloniously ravished, and carnally knew the
said E F, and against her will and consent. These are there-
fore to command you to take the body of said C D, if to be
found in your county, and him forthwith bring before me, or
some other justice of the peace for said county, to answer the
premises and to be dealt with as the law directs. Given under
my hand and seal, the date above written." [To be signed,&c.
officially by the justice.]
Form of a warrant for carnally knowing and abusing a femalr
child.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,} return:
Whereas, complaint has been made by A B, late of said conn*
fy, planter, upon oath, before me, G II, an acting justice of
the peace for said county, this day of in the year of
our Lord one thousand eight hundred and that C D, late
of said county, yeoman, not having the fear of God before his
eyes, and not regarding social relations and good opinions of so-
ciety, but being moved and seduced by the instigation of the
Devil, to gratify his brutal appetite, with force and arms, at, to
wit, in the county aforesaid, an assault did then and there make
in and upon E F, a female child under ten years of age, and
then and there feloniously and unlawfully, carnally knew, rav-
RAPE.
177
ished and abused the said E F. These are therefore to com-
mand you to take the body of the said C D, if to be found in
your county, and him forthwith bring before me, or some other
justice of the peace for said county, to answer the premises, and
to be dealt with as the law directs. Given under my hand and
seal, the date above written." [To be signed, &c.]
Form of the recognizance of the prisoner and his security.
"State of Tennessee,)
county,) SS'
Be it remembered, that oil the day of in the
year of our I.ord one thousand eight hundred and C D,
I J and L M, personally appeared before me, G II, an acting
justice of the peace for said county, and acknowledged them-
selves to stand justly indebted to the State of Tennessee, that is
to say, the said C D in the sum of two thousand dollars, and the
said I J and L M in the sum of one thousand dollars each, to be
levied of their respective goods and chattels, lands and tenements j
but to be void if the said C D shall make his personal appear-
anco before the judge of the circuit court, at a court to be hold-
en for said county, at the court hou§e in the town of on
the Monday of next, then and there to answer the
Slate aforesaid, upon a charge of the crime of rape upon the
body of one E F, late of said county, spinster, and abide by
such sentence as shall be pronounced against him, and not de-
part said court until discharged by due course of law. Ac-
knowlcdged before me, the date above written. [To be signed
by the justice.]
This form of recognizance will answer for the case of a.rape
upon the body of a female child, by adding the words, "female
child under ten years of age," immediately after her name.
Form of the prosecutor's recognizance.
"State of Tennessee,)
county,) SS'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared A B, late of said county, planter, before me, G H, an
acting justice of the peace for said county, and acknowledged
himself justly indebted to the State of Tennessee, in the sum of
five hundred dollars, to be levied of his goods and chattels, lands
X
178
CRIMINAL DIVISION.
and tenements; but to be void if the said A B shall make hj,
personal appearance before the judge of the circuit court, at a
court to be holden for said county, at the court house in the town
of in said county, on the Monday of
next, then and there to prosecute a certain C D for the crime of
rape upon the body of one E F, late of said county, spinster,
and not depart said court without leave thereof first had and
obtained. Acknowledged before me, the date above written."
[To be signed, &c.]
This form for the prosecutor will do for the case of a prose-
cutor for the crime of rape upon a female child under ten year,
old, by making the alteration pointed out in the preceding form,
after her name.
BIGAMY.
"No person being married, shall marry another person, the
former husband or wife being alive." Penal laws, sec. 16.
"Whoever shall be guilty of said offence shall undergo con-
finement in said jail and penitentiary house for a period not less
than two nor more than twenty-one years. Proviso: No person
shall be deemed guilty under this section whose husband or
wife shall be continually remaining beyond the limits , of the
United States for the space of five years together, or whose hus-
band or wife shall absent him or herself, the one from the other,
for the space of five years together, the one of them not know-
ing the other to be living within that time."
This section is almost a literal copy from the statute 1 Jac. I.
cli. II; and the same rule of construction ought to prevail. Un-
der the statute of James, it has been held, that the true wife is
not an admissible witness against a husband. 1 Hale, 692-3.—
Even an affidavit made by the first wife, to postpone the trial
of an indictment against her husband, has been rejected. O.B.
Feb. 1786. But the second woman is competent, even to prove
the marriage, for she is not his wife defacto, (of fact.)
The fact of knowledge, "that the one knew the other to be
living," must be made out by the State, from such facts and cir-
cumstances as cannot leave a reasonable doubt on the mind, that
the party did know the other to be living; and that burthen cannot
biuamy.
170
be properly thrown on the party accused. The marriage must be
proved by (he production of a certified copy of the marriage
license, and the return thereon, if the marriage has been cele-
brated since the passage of the law requiring ministers of the
gospel and justices of the peace to make regular return of the
marriage license after the marriage is celebrated. Act of 1815,
ch. 17. sec. 1. And the persons must be identified to be the
same persons as mentioned in said license. But if the marriage
was celebrated in another State, where the law may not require
the return of the license, then parol proof is admissible as to
the f ict of marriage, as well as the identity of their persons.—
Says our statute, "In all trials under this section, a certified co-
py of the marriage license, from the clerk out of whose office the
same issued, accompanied by the certificate of solemnization of
the minister of (he gospel, justice of the peace, or other person
who solemnized the rites of matrimony, also copied and certified,
shall be sufficient proof of either the first or second marriage, in
any prosecution under this section; and in the absence of such
certified copy, the testimony of by-standers who witnessed the
marriage ceremony, shall be received in proof of such marriage;
and the public acknowledgments and conduct of the party char-
ged, shall be competent evidence on such trial, as to both or ei-
tlier of said marriages." Act of 1829, ch. 12, sec. 3.
Form of a warrant for the crime of Bigamy.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,3 return:
Whereas, complaint has been made by A B, upon oath, before
me, G II, an acting justice of the peace for said county, this
day of in the year of our Lord one thousand eight
hundred and that C D being a wicked, adulterous person,
and not regarding the sacred rites of matrimony, with force and
arms, on the day of in the year of our Lord one thousand
eight hundred and at, to wit, at in the county aforesaid,
he, the said C D, then and there did commit the crime of bigamy,
by marrying one N S, late of said county, spinster, he, the said
C D, then and there being a married man, his lawful wife Mar
ry then and there being alive, and that fact being known to the
said C D: These are therefore to command you to take the body
of the said C D, if to be found in your county, and him forth-
180
CRIMINAL DIVISION.
with bring before me, or some other justice of the peace for
said county, to answer the premises, and he dealt with as the
law directs. Given under my hand and seal, the date abort
written. " [To be signed, &c.]
Recognizance for the prisoner's appearance.
"State of Tennessee,)
county,5 SS'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and C D, IJ
and L M, personally appeared before me, G II, an acting justice
of the peace for said county, and acknowledged themselves to
stand justly indebted to the'State of Tennessee, that is to say,
the said C D in the sum of fifteen hundred dollars, and the said
I J and L M each in the sum of seven hundred and fifty dollars,
to be levied of their respective goods and chattels, lands and ten-
ements; hut to he void on condition that the said C D shall make
his personal appearance before the judge of the circuit court,at
a court to be holden for said county, at the court house in the
town of on the Monday of next, then and
there to answer the State of Tennessee upon a, charge of Big-
amy, and abide by such sentence as shall he pronounced against
him, and not depart said court until discharged by due course
of law. Acknowledged before me, the date above written."—
[To he signed, &c.]
The recognizance for the prosecutor and witnesses are in all
respects like those in the preceding cases, except in the name
of the crime,
SODOMY AND BUGGERY.
"Whoever shall commit either of the infamous crimes against
nature, called sodomy and buggery, shall undergo confinement
in said jail and penitentiary house for a period not less than five
nor more than fifteen years." Penal laws, 1829, ch. 23, sec. 17.
All unnatural copulations with a man or beast come under
the definition of sodomy. 12 Co. 36, 37. 3 Inst. 58. Puff. ch. 3.
Fortes. 91. 4 Bac. 596. 1 Haw. 9. In these unnatural and
brutal crimes, some kind of a penetration must be proved on
the trial.
SODOMY AND BUGGERY.
181
Form of a warrant for Sodomy.
'•State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint is made by A B, upon oath, before me,
G II, an acting justice of the peace for said county, this
day of in the year of our Lord one thousand eight hundred
that C D, late of said county, yeoman, being an evil and
m ickedly-inclined person, wholly regardless of the laws of God
and man, did, with force and arms", to wit, on the day of
in the year of our Lord one thousand eight hundred and
at, to wit, in the county aforesaid, have a venereal affiiir
ith, and did then and there carnally know a certain man child,
or male child, under the age of twelve years, contrary to na-
ture: These are therefore to command you to take the body of
the said C D, if to be found in your county, and him forthwith
bring before me, or some other justice of the peace for said
county, to answer the premises, and be dealt with as the law
directs. Given under my hand and seal, the date above writ-
ten." [To be signed, &c.]
This infamous crime with a man is generally called sodomy,
to distinguish it from the crime against nature with a beast,
which is most usually called buggery. They are both crimes
that ought never to be heard of amongst civilized men, much
less those who claim to be a Christian people.
Form of a warrant for the crime of Buggery.
uState of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint is made, this day of in the
year of our Lord one thousand eight hundred and by A
B, upon oath, before me, G II, an acting justice of the peace for
said county, that one C D, late of said county, yeoman, being
an evil, wicked and debased man, having no regard for the laws
of (iod and man, on the day of in the year of our
Lord one thousand eight hundred and at, to wit, in the
county aforesaid, with force and arms, did then and there have
a venereal affair with, and carnally know a certain horse beast,
commonly called a mare: These are therefore to command you
to take the body of the said C D, if to be found in your county,
and him forthwith bring before me, or some other justice of the
18-2
CRIMINAL DIVISION.
peace for said county, to answer the premises, and be dealt with
as the law directs. Given under my hand and seal, the date
above written. [To be signed, &c.]
Form of a recognizance in such a case for the prisoner.
"State of Tennessee,)
county,5 SS'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and C D, I J and
L M, personally appeared before me, G H, an acting justice of
the peace for said county, and acknowledged themselves to he
indebted to the State of Tennessee, that is to say, C D in the sum
of two thousand dollars, and the said I J and L M each in the sum
of one thousand dollars, to be levied of their respective goods
and chattels, lands and tenements; but to be void if the said
C D shall make his personal appearance before the judge of our
circuit court, at a court to be holden for said county, at the court
house in the town of in said county, on the Monday
of next, then and there to answer the State of Tennessee
upon a charge of the odious crime of buggery, and abide by
such sentence as shall be then and there pronounced against
him, and not depart said court until discharged by the due course
of law. Acknowledged before me, the date above written*"—
[To be signed, &c.]
INCEST.
"No man shall marry, or have carnal knowledge of his moth-
er, his father's sister, his mother's sister, his sister, the daughter
of his son or daughter, his father's wife, his wife's daughter, the
daughter of his wife's son or daughter.
"No woman shall marry, or have sexual intercourse with her
father, her father's brother, her mother's brother, her brother,
her son, the son of her brother or sister, the son of her son or
daughter, her mother's husband, her daughter's husband, her
husband's son, the son of her husband's son or daughter.
"Whoever shall commit any offence mentioned in this section,
shall be deemed guilty of incest, and shall undergo confine-
ment in said jail and penitentiary house for a period not less
INCEST.
183
than five nor more than twenty-one years." Penal laws, act of
1S29, ch. 23, sec. 18.
The crime of incest was unknown to the common law courts.
The spiritual courts exercised some kind of jurisdiction over it,
and punished it by small fines, and sometimes by, excommunica-
tion. It is now what it always ought to have been, a crime pun-
ishable by the temporal courts -with severity, as an offence
against morality and decency. But few cases have occurred
since the statute lias gone into operation. The author knows
of hut one case, and that case was tried at the December term
of the circuit court for Bedford county. The defendant was
charged with having committed this crime with his brother's
daughter: lie was convicted. The State vs. Doc. Dab. Ewell.
But a dim light can be afforded us from former adjudications
on this subject. The crime of rape, though dissimilar in many
of its features, gives us the nearest approach to this crime. In
rape, the party ravished is always a competent witness. Here it
is otherwke; both parties are equally criminal, and cannot be
witne.-ses for or against each other, unless one of the parties
should turn an approver against the other. Therefore, the act
of copulation or coition must, in most cases, depena upon circum-
stances, because the actual penetration, or rem in re, can, but in
few cases, be seen. The proof of actual copulation will be suf-
ficient, if such acts are proved as leave no doubt on the mind
that the offence has been committed. Whenever a presumption
is of such a character as to exclude all other presumption, it is
equivalent to full proof; but if any thing else may be presumed
from the acts proved, the party ought to be acquitted. By way
of illustration, I put this case: A man and woman are seen upon
a road, in a lonely place together, apparently in conversation, by
an observer, at a distance from them: they separate—the man
leaves the road, takes a circuit in the woods, and when he arrives
at a certain point,he stops, as though waiting for some one; the
woman continues along the road for some distance, and then turns
out of the road, and bends her course so as to meet the man at
the place where he stopped: they stand together a few minutes,
and the man takes the woman and lays her down, and then gets
down upon her, and nothing more is seen. Here is ^uch a
connection and train of circumstances as amount almost to point
181
CRIMINAL DIVISION.
blank proof of the actual coition: no counter presumption can
be raised to oppose it.
The relationship must be proved, as charged against the par-
ties, as in other cases. Pedigree may be proved by the defend-
ants's having acknowledged and recognized tli§ other party to be
such relation; by general reputation, (in absence of better proofy
by the family register, &c.
Form of a warrant for incest.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made, this day of
in the year of our Lord one thousand eight hundred and
by A B, of said county, upon oath, before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, to wit, on the day of in the year of our Lord
one thousand eight hundred and with force and arms, at,
to wit, in the county aforesaid, did then and there commit the
crime of incest, with and upon the body of E F, the sister of
the said C D, by then and there having a venereal affair with,
and carnal knowledge of the body of the said E F, she then
and there being his sister, as aforesaid: These are therefore to
command you to take the body of the said C D, and him forth-
with bring before me, or some other justice of the peace for
said county, to answer the premises^md be dealt with as the
law directs. Given under my hand and seal, the date above
written." [To be signed, &c.]
Form of a joint recognizance of the defendant and his securities.
"State of Tennessee,)
county,) SSm
Be it remembered, that C D,I J and L M, personally appear-
ed before me, G H, an acting justice of the peace for said coun-
ty, this day of in the year of our Lord one thousand
eight hundred and and acknowledged themselves to be
justly indebted to the State of Tennessee in the sum of three
thousand dollars, to be levied of their goods and chattels, lands
and tenements; but to be void if the said C D shall make his
personal appearance before the judge of our circuit court, at a
court to be holden for said county, at the court house in the town
of in the county aforesaid, on the Monday of
INCEST.
185
next, then and there to answer the slate of Tennessee upon a
charge of incest, with and upon the body of one E F, the sister
of the said C D, and to abide by such sentence as shall be pro-
flounced against him, and not depart said court until discharged
by due course of law. Acknowledged before me, the date above
written.'" [To be signed, &c.]
Mittimus, upon a failure to give security.
uState of Tennessee.) ss.—To the sheriff or keeper of the com-
county,) mon jail of said county:
Whereas, C D has been arrested by N O, a lawful officer, up-
on a state's warrant, and brought before me, G H, an acting jus-
tire of the peace for said county, upon a charge of incest with
and upon the body of E F, the sister of the said C D, at, to wit, in
the county aforesaid; whereupon the said C D has been duly
examined by me, and the witnesses introduced on behalf of the
Slate, as well as the defendant, and the same duly recorded,
and from said examinations I am satisfied of the defendant's
guilt of the crime of incest, as aforesaid: Whereupon, the said
defendant was required to enter into recognizance, with two se-
curitics, in the sum of three thousand dollars jointly, for his per-
sonal appearance at the circuit court to be holden for said coun-
ty, at the court house in the town of in said county, on the
Monday of next, then and there to answer the premises,
and the said C D failing to give such security, as aforesaid:
These are therefore to command you to receive the body of the
said C D into your custody, in the said jail, and there to remain
unlil he shall be released by due course of law. Given under
n \ hand and seal, this t day of in the year of our
Lord one thousand eight hundred and ." [To be signed by
the justice.]
Recognizance of the prosecutor and witness.
"State of Tennessee,)
county,) SS'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and A B person-
ally appeared before me, G H, an acting justice of the peace for
=aid county, and acknowledged himself to stand justly indebted
to the State of Tennessee in the sum of five hundred- dollars, to
he levied of his goods and chattels, lands and tenements; but to
186
CRIMINAL DIVISION.
be void if the said A B shall make his personal appearance be-
fore the judge of onr circuit court, at a court to be holden for
said county, at the court house in the town of on the
Monday of next, then and there to prosecute and give cv-
idence in the case of the State against C D, for the crime of in-
cest with and upon the body of E F, the sister of the said C 1),
defendant, and not depart said court without leave thereof first
had and obtained. Acknowledged before me, the date above
written." [To be signed, &c.]
It is unnecessary that I should call the reader's attention to
the fact, that the mode of examining the party and the witnesses
is the same in all cases, except as to the jname of the crime.—
The examination of the prisoner and the witnesses in writing,
cannot be dispensed with in any case by the justice of the peace,
without incurring a ruinous penalty, as will be shown in the last
division of this work.
BURGLARY.
"Burglary is the breaking and entering into a mansion house
by night, with an intent to commit a felony.
"Every person convicted of burglary shall undergo confine-
ment in said jail and penitentiary house for a period not less
than five nor more than fifteen years." Penal laws, act of 18119,
ch. 23, sec. 19.
1. It must be in the night time. The word noctanter, which
is precisely necessary in every indictment for this offence, can-
not be satisfied, in a legal sense, if it appear upon evidence that
there was so much daylight, at the time, that a man's countc-
nance might be discerned thereby. But this dees not extend to
moonlight, though never so bright. 1 Haw. 160. Dalt. 151. 3
Inst. 63. Savil. 47. Crom. 32-3. 7 Co. ch. 31. 1 Hale, 550. Cro.
Eliz. 583. 9 Co. 66. 4 Com. 221.
2. There must be both a breaking and an entry, fregit ct intra-
vit. No indictment can be good that does not contain both these
allegations; and a fortiori, there can be no burglary where there
is neither of them: as, if on an external assault upon a house,
the owner throws out his money. Though this might be rob-
BURGLARY.
187
bery, yet it is not burglary, for there is no breaking and entry.
Dyer,"95. S. P. C. 30. 3 Inst. 64. Summ. 89. 1 Hale, 555. 1
Haw. ICO.
3. As to what breaking shall bo sufficient.—It seems agreed, that
guch a breaking as would be sufficient to maintain an action of
trespass (juarc clausum fregit, will not, in all cases, satisfy the
words ffilonicc ct burglariUr Jregit, (that is, feloniously and burgla-
riously broke.) Therefore, if one enter by a door which he finds
open, or through a hole which was made by some one else be-
fore that time, and steal goods; or draw any thing out of a house
through a door which was open before; or enter into a house by
an open door in the day time, and lie there till night, and then
steal goods and go away without breaking any part of the house,
he is not guilty of burglary. 3 Inst. 64. Sum. 80,82. 1 Hale, 508,
527,551, 552, 555. Crom. 32, 34. Dalt. ch. 151. Kelynge, 67.
Ilutton 20. Cro. Car. 65,225. Dyer, 90. 2 llale, 558. And. 114,
115. Foster 107. 1 Haw. 160. But it is certain that he would
have been guilty thereof, if he had opened the window, or un-
locked the door; or if he had broke a hole.in the wall in one night
and entered the same the next night, the offence would have
been complete: or having entered by a door he found open in
the day time, or having lain in the house by the owner's consent,
if he had but unlatched a chamber door, or if he had come down
the chimney, would be a sufficient breaking to constitute the
crime of burglary.
It has been resolved, that where divers persons came to a
house with an intent to rob it, and knocked at the door, pretend-
ing to have business with the owner, and being by that means
let into the house, rifled it, they were guilty of burglary. Also,
it hath been adjudged, that those were no less guilty, who, hav-
ing a design to rob a house, took lodgings in it, and then fell
on the landlord and robbed him; for the law will not suffer to
have its justice defrauded by such miserable evasions. La Motl's
case, related by WiJde to Kelynge, 42, 52, 63.
4. As to what entry is sufficient to this purpose.—It seems agreed,
that the least entry, either with the whole or a part of the body
only, or with any instrument or weapon, will satisfy the word
inlravit, (he entered) in an indictment for burglary. Dalt. 151.
188
CRIMINAL DIVISION.
Summ. 81. Kelynge, 67. Patton, 152. 1 And. 115. 1 Hale, 55:;.
Foster, 102. 1 Ilaw. 162.
5. It must be committed in a dwelling house, and the indict-
ment for it must necessarily allege the facLto be done in dom•>
mansionali, (in a mansion house, a dwelling house, or part or par.
eel thereof.) 1 Haw. 162.
6. The breaking and entry of a mansion house in the night
time, must be with an intent to commit a felony. An intent to
whip or beat the man of the houses or another therein, or any
other trespass, will not be burglary. But if the entry be mado
with an intent to commit a felony, the offence is complete, though
the party has not committed his designed felony. Dyer, 11.
Dallison, 22. 3 Inst. 65. Kelynge, 30,67. Crom. 32,
Every man's house is considered as his castle, as well for hi-
defence against injury and violence, as for his repose. 3 Co. 92.
4 Com. 126. To violate this security, is considered so atrn-
cious an offence, that the alarmed inmates may repel such attack-
with the death of the assailant, without incurring any penalty.—
Stat. 24. Henry VIII. ch. 5.
Form of a warrant for Burglary.
"State of Tennessee,) ss.—To any lawful officer to execute and
county, 5 return:
Whereas, complaint has been made by A B, of said county,
this day of in the year of our Lord one thousand
eight hundred and before me, G II, an acting justice of
the peace for said county, that one C D, late of said county, la-
borer, to wit, on the day of in the year of our Lord
one thousand eight hundred and at, to wit, in the county
aforesaid, with force and arms, did, in the night time of the day
and year last aforesaid, feloniously and burglariously break and
enter the mansion house of the said A B, with an intent to
commit a felony in stealing certain goods and chattels of him
the said A B, four sheets and two counterpains, of the value ot
twenty dollars:—These are,therefore, to command you to take
the body of the said C D, if to be found in your county, and him
forthwith bring before me, or some other Justice of the Peace
for said county, to answer the premises, and be dealt with as the
law directs. Given under my hand and and seal, the date above
written." [To be signed, &c.]
BURGLARY.
189
But where the prosecutor is not certain as to the person who
committed the burglary, but acts against an individual upon sus-
picion, the warrant ought to be made thus:
"Stale of Tennessee,) ss.—To any lawful officer to execute and
county,$ return:
"Wher 'as, complaint has been made upon oath by A B, this
day of in the year of our Lord one thousand eight
hundred and before me, G II, an acting justice of the
peace for said county, that in the nighttime of the day
of in the year of our Lord one thousand eight hundred
anu at, to wit, in the county aforesaid, the dwelling house
of the said A B was feloniously and burglariously broken open,
and goods and chattels of the value of ten dollars, of him the
said A B, feloniously and burglariously stolen and carried away,
and that he has just cause to suspect and believe, and does sus-
pert and believe, that C 1), late of said county, jeoman, the
said felony and burglary did commit: These are therefore to
command }ou to take the body of the said C D, if to be found
in your county, and him forthwith bring before me, or some other
justice of the peace for said county, to answer the premises, and
he dealt with as the law directs. Given under my hand and
seal, the date above written. " [To be signed, &c.j
Rrr ognizance for the defendant's appearance at court.
"State of Tennessee,)
county,} SS'
Be it remembered', that on the day of in the
year of our Lord one thousand eight hundred and before
me, G II, an acting justice of the peace for said county, per-
sonally appeared C 1), I J and L M, and acknowledged them-
selves to be justly indebted to the State of Tennessee, that is to
««ay, the said G D in the sum of fifteen hundred dollars, and I
J and L M, jointly, in the sum of fifteen hundred dollars, to be
le\ied of their respective goods and chattels, lands and tene-
inonls; hut to be void on condition that the said C D shall
make his personal appearance before the judge of our circuit
court, at a court to be holden for said county, at the court house
in the town of in the county aforesaid, on the
Monday of next, then and there to answer the State of
Tennessee upon a charge of felony and burglary, in breaking
190
CRIMINAL DIVISION.
open and entering the dwelling-house of one A B, and abide
by such sentence as shall be pronounced upon him, and not dc-
part said court until discharged by due eourse of law. Ac.
knowlcdgcd before me, the date above written." [To be signed
by the justice.]
The prosecutor's recognizance as before.
ROBBERY.
"Robbery is the felonious and forcible taking from the person
of another, goods or money of any value, by violence, or putting
the person in fear.
"Every person who shall be convicted of the crime of robbery
shall undergo confinement in said jail and penitentiary house,
for a period not less than five nor more than fifteen years." Fe.
lial laws, act of 1829, cb. 23, sec. 29.
1. What taking away icill satisfy the word cepit, (he took.) in an
indictment for robbery.—It seems clear, that he who receives im
money by my delivery, cither whilst I am under the terror of lib
assault, or afterwards while I think myself bound in conscience to
give it to him, by an oath to that purpose, which, in my fear, I
was compelled by him to take, may, in the'eye of the law, as
properly be said to take it from me, as he who actually takes it
out of my pocket with his own hands. Summary. Dalt. ch, 100.
S. P. C. 27. Cromp. 3-1. 3 Inst. 68.
After the offence is complete, the return of the property to the
owner, is no mitigation. 3 Inst. GO. 1 Haw. 148.
Where I am robbed by a gang of thieves, and only one takes
my goods, in such a case, by judgment of the law, every one of
the company shall be said to take them, in respect to that en-
couragemcnt they give to each other in so wicked an enterprize.
2. What shall be said to be a, taking arcay from the person.—Not
only the taking away a horse from a man, whereon he is actual-
ly riding, or money out of his pocket, but also the taking of any
thing from him, openly and before his face, which is under bis
immediate and personal care and protection, may properly
enough be said to be a taking from the person; and, therefore,
he who having first assaulted me, takes away my horse standing
by me, or having put me in fear, drives my cattle, in mv pres-
ROBBERY.
191
ence, out of my pasture, or takes up my purse, which in my fright
I ca«t into a bush, or my hat, which fell from my head, or robs
my servant of my money before my face, may be indicted for
having taken such things from my person. S. P. C. 27. Crom.
31-5. Dalt.ch. 100. 5 Inst. 09. Sum. 73. 1 Hale, 533. Styles, 156.
Sulk. 613. Garth. 145. Strange, 1015. Doug. 197. Com. 478.
3. What kind of taking shall be said to be violent.—Whenever
a person assaults another, with such circumstances of terror as
puts hirn into fear, and causes him, by reason of such fear, to
part with Ins money, the taking thereof is robbery, whether
there were any weapons drawn or not, or whether the person
n^aulted delivered his money upon the other's command, or af-
terwards gave it to him upon his ceasing to use force and beg-
ging an nlms; for he was put into fear by his assault, and gives
him his money to get rid of him. 1 Hale, 533-4. Summ. 71-2.
Crom. 34. Dalt. ch. 100. 1 Haw. 149.
Form of a warrant for Robbery.
'State of Tennessee.) ss.—To any lawful officer to execute and
county,} return. t
Whereas, complaint has been made upon oath, by A B, late
of said county, on this day of in the year of our
Lord one thousand eight hundred and -- before me, G H,
an acting justice of the peace for said county, that a certain
C D, j'coman, not having the fear of God before his eyes, but
being moved and seduced by the instigation of the Devil, with
force and arm", to wit, on the day of in the year of
our Lord one thousand eight hundred and at, to wit, in
the county aforesaid, an assault did make in and upon one E F,
and him the saicLE F in bodily fear did put, and then and there
did feloniously take and carry away from the person of the said
E r, one gold watch of the value of one hundred dollars, he,
the said E F, being under the apprehension of great bodily
hurt from the said C D: These are therefore to command you to
take the body of the said C D, if to be found in your county,
and him forthwith bring before mc, or some other justice of the
peace for said county, to answer the premises, and be dealt with
as the law directs. Given under my hand and seal, the date
above written." [To be signed, &c.J
192
CRIMINAL DIVISION.
NEGRO STEALING.
"Whoever shall he guilty of stealing any free person of col-
vr, or selling any free person for a slave, knowing the person
sold to be free, shall undergo confinement in said jail and peni-
tentiary house for a period not less than five nor more than fif-
teen years." Penal laws, act of 18*29, ch. 23, sec. 21.
This offence has a near relation to the common law offence of
kidnapping, or the forcible abduction or stealing away a man,
woman or child from their own country, and selling them into
another.
The principal facts to be made out in the investigation of thh
offence, are the fact of the person sold being free, and that fact
known to the defendant.
Form of a warrant for such an offence.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,^ return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that a certain C D, late
of the county aforesaid, yeoman, with force and arms, to wif,
on the day of in the year of our Lord one
thousand eight hundred and at, to wit, in the
county aforesaid, did feloniously steal, take and carry away
a free'male child of color, by the name of Jeremiah Tate,
with intent to sell said free male child of color for a slave:
These are therefore to command you to take said C D, if to he
found in your county, and him forthwith bring before me, or
some other justice of the peace for said county, to answer the
premises, and be dealt with ns the law directs. Given under
my hand and seal, the date above written." [To be signed,&c.]
This is the form of a warrant against a man who has stolen a
free negro. I will now give you the form of a warrant against
a man who sells a free person of color:
"State of Tennessee,) ss.—To any lawful officer to execute and
county, 5 return:
Whereas, complaint has, this day of in the year
of our Lord one thousand eight hundred and been made
NEGRO STEALING.
193
upon oath, by A B, of said county, before me, G H, an acting
justice of the peace for said county, that C D, late of said coun-
ty, with force and arms, on the day of in the year
of our Lord one thousand eight hundred and at, to wit, in
the county aforesaid, did sell a free female child of color, for
a slave for life, by the name of Lucinda, to one E F, of said
county, then and there wrell knowing the said female child of
color, Lucinda, to be free, and not a slave: These are therefore
to command you to take the said C D, if to be found in your
county, and him forthwith bring before me, or some other jus-
tice of the peace for said county, to answer the premises, and
be dealt with as the law directs. Given under my hand and
•seal, the date above written. [To be signed, &c.j
Joint recognizance for defendant, fyc.
"State of Tennessee,)
county,5
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and CD, IJ
and L M, personally appeared before me, G H, an acting justice
of the peace for said county, and acknowledged themselves to
stand justly indebted to the State of Tennessee, that is to say,
G D in the sum of fifteen hundred dollars, and the said I J and
LM in the sum of fifteen hundred dollars, jointly, to be levied
of their respective good? and chattels, lands and tenements;
but to be void if the said C D shall make his personal appear-
ante before the judge of our circuit court, at a court to be
holden for said county at the court house in the town of
on the Monday of next, then and there to answer said
State upon a charge of having sold a free female child of color,'
by the name of Lucinda, knowing her to be free at the time of
such sale, and to abide by such sentence as shall be pronounced
against him, and not depart said court until discharged by due
course of law. Acknowledged before me, the date above writ-
ten. G. IL"
44Whoever shall steal any slave, the property of another, with
or without the consent of such slave, shall undergo confinement
in said jail and penitentiary house for a period not less than five
nor more than fifteen years." Penal laws, act of 1829, ch. 23,
sec. 22.
Z
194
CRIMINAL DIVISION.
There is nothing to distinguish the stealing of a slave from
any other larceny, according to the above section. I will there-
fore refer the reader to the head of Larceny, for all the princi-
pies governing that crime.
Form of a warrant for JYegro Stealing.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has this day of in the year
of our Lord one thousand eight hundred and been made
upon oath, by A B, of said county, before me, G H, an acting
justice of the peace for said county, that a certain C D, late of
said county, did feloniously steal, take and carry away a negro
man, slave for life, the property of the said A B, then and there
being, by the name of Henry: These are therefore to eommand
you to take the body of the said C D, if to be found in your
county,and him forthwith bring before me, or some other justice
of the peace for said county, to answer the premises, and be
dealt with as the law directs. Given under my hand and seal
the date above written." [To be signed, &c.]
The form of recognizance for both the prisoner and the pros
ecutor, is the same with the preceding, except in the descrip-
tion of the offence the words in the warrant must be used,
LARCENY.
"Larceny is the felonious taking and carrying away the per-
sonal goods of another." Penal Laws, act 1829, ch. 23, sec. 2.3.
There are four things to be made out in the crime of larceny,
and these principles apply to the crime of stealing a slave, or a
horse, as well as to other larcenies.
1. There must be a taking, which implies the consent of the
owner to be wanting; therefore, no delivery of the goods from
the owner to the defendant, upon a trust, can constitute a larceny.
There must be a trespass in the taking of the gocds originally.
(4 Black. Com. 230-1: Foster 123: II. P. C. 513: 1 Ilayu.
157: Haw. P. C. 505:) which cannot be the case where the
property has been previously delivered. 2 Term, 68.
2. There must not only be a taking, but a carrying away—
Cepit et asportavit, was the old law-latin. A bare removal of th<
LARCENY.
195
goods from the place where he found them, though the thief does
not quite make off with them, is a sufficient asportation, or car-
lying away.
3. This taking and carrying away must also be felonious; that
is, done animo furandi, (with a mind or intention of stealing,) or,
as the civil law expresses it, lucri causa, (for the sake of gain.)—
This felonious intent must exist at the time the possession was
first acquired, to make it larceny. For if a man find any
thinin the road, and afterwards convert the same to his own
u>e, with an intent to steal it, it is not larceny.
•I. This felonious taking and carrying away, must be of the
personal goods of another; for if they are things real, or savor
of the really, larceny, at the common law, cannot be commit-
ted on them.
It is well settled, that he who steals my goods in the coun-
ty of B, and carries them to the county of C, may be indicted
for the crime of larceny in the county of C, as well as in the
county of B, because the possession still continues in me. Every
moment's continuance of the trespass is as much a crime, and
may come under the word ccpit, as well as the first taking.
When the property is found on a man, the law presumes him
to be the thief, until he shall explain it away by accounting for
his possession.
Warrant for Larceny.
"Stale of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made, this day of
in the year of our Lord one thousand eight hundred and
by A B, of said county, upon oath, before me, G II, an acting
ju-tice of the peace for said county, that C D, laborer, late of
said county, with force and arms, to wit, on the day of
in the year of our Lord one thousand eight hundred and
af, to wit, in the county aforesaid, did then and there
feloniously take and carry away one piece of broadcloth, of the
value of fifty dollars, of the proper goods and chattels of the
said A B, and out of his hands and possession: These are there-
fore, to command you to take the body of him, the said C D,
if to he found in your county, and him forthwith bring before
me, or some other justice of the peace for said county, to answer
196
CRIMINAL DIVISION.
the premises, and be dealt with as the law directs. Given un-
der my hand and seal, the date above written." [To he sign-
ed, &c. by the justice.]
Where a man has had goods stolen, but is not certain that
the suspected person is guilty of the stealing, then the warrant
ought to be framed thus:
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an
acting justice of the peace for said county, that on the
day of in the year aforesaid, at, to wit, in the
county aforesaid, one piece of broadcloth, of the proper goods
and chattels of him the said A B, of the value of fifty dol-
lars, was feloniously stolen, taken and carried away out of his
hands and possession, and that he has good cause to suspect
and believe, and does suspect and believe, that one C D, late
of said county, labourer, did then and there feloniously steal,
take and carry away the said piece of broadcloth: These are
therefore to command you to take the body of the said C D, if
to he found in your county, and him forthwith bring before me,
or some other justice of the peace for said county, to answer
the premises, and be dealt with as the law directs. Given un-
der my hand and seal, the date above written." [To be signed,
&c. officially by the justice.]
Warrants drawn after this form, ought to be used in all cases
where the prosecutor is not able to swear positively to the per-
son of the offender.
Larceny is either grand or petit.
"Grand Larceny is the felonious taking and carrying away
the personal goods of another, over the value of ten dollars.
Petit Larceny is the felonious taking and carrying away the
personal goods of another, not exceeding ten dollars in value.
"Whoever shall be gfiilty of grand larceny shall undergo con-
finement in said jail and penitentiary house for a period not less
than three nor more than ten years.
"Whoever shall be guilty of petit larceny, shall undergo con-
finement in said jail and penitentiary house for a period not less
HORSE STEALING.
19?
than one nor more than five years." Penal Laws, act of 1829. ch.
23, sec. 25.
IIORSE STEALING.
"Whoever shall feloniously take or steal any horse, mare, geld-
ing, filly, foal, mule or ass, shall undergo confinement in said
jail and penitentiary house for a period not less than three nor
more than ten years." Penal Laws, act of 1829, ch. 23, sec. 23.
Form of a warrant for Horse-stealing.
''State of Tennessee,) ss.—To any lawful officer to execute and
county, ) return:
Whereas, complaint has been made on oath, by A B, of said
county, on this ' day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, wagoner, with force and arms, to wit, on the day
of in the year aforesaid, at, to wit, in the county aforesaid,
feloniously did steal, take and carry away out of his hands and
possession, a certain sorrel gelding, of the value of one hundred
dollars, of the property of the said AB: These are therefore
to command you to take the body of the said C D, if to be
found in your county, and him forthwith bring before me, or
some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given under
my hand and seal, the date above written." [To be signed,
&c. by the justice.]
The form of a recognizance for the appearance ot the defend-
ant, in one species of larceny, will answer for the various kinds.
"State of Tennessee,)
county,) iS'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and C D,
I J and L M, personally appeared before me, G II, an acting
justice of the peace for said county, and acknowledged them-
selves to stand justly indebted to the State of Tennessee in the
sum of two thousand dollars, jointly, to be levied of their respect-
ive goods and chattels, lands and tenements; but to be void on
condition that the said C D shall make his personal appearance
198
CRIMINAL DIVISION.
before the judge of the circuit court, at a court to be holdeii
for said county, at the court house in the town of
in said county, on the Monday of next, then
and there to answer the State of Tennessee upon a charge of
horse stealing, and abide by such sentence as may be pronounced
against him, and not depart said court without leave thereof
first had and obtained, or until discharged by due course of law.
Acknowledged before me, the date above written," [To be
signed, &c.]
Where the charge is for simple larceny, say, in the recogni-
zance, "to answer the State of Tennessee upon a charge of
grand larceny," or "petit larceny," as the case may be.
Upon a failure to give security, the mittimus will, in every re-
spect, be the same as in former precedents, only in the name of
the crime; and the same may be said of recognizances of wit-
nesses and prosecutors.
RECEIVING STOLEN HORSES.
"Whoever shall fraudulently receive or buy any horse, mare,
gelding, filly, foal, mule or ass, that shall be feloniously taken or
stolen from another, knowing the same to be stolen, with intent
to deprive the true owner thereof, shall undergo confinement in
said jail and penitentiary house for a period not less than three
nor more than ten years." Penal Laws, act 1829, ch. 23, §ec. 2k
In the construction of this section, several things are necessa-
ry to be observed.
1. The property must have been stolen, or taken by robbery
from some particular person by name, and this fact must be made
out as clearly as other larcenies; but it is not necessary that the
thief should be identified.
2. The receiving of the property must be done with a fraud-
ulent intent to deprive the owner thereof.
3. He must receive the property, knowing the same to have
been stolen. This knowledge is to be gathered from a train of
circumstances, most generally.
4. It is not material whether the defendant bought the horse
for a valuable consideration, or not, if he knew him to be sto-
len; for the offence is complete under this statute, whenever a
RECEIVING STOLEN HORSES.
199
man shall, under a purchase, or otherwise, receive any of the
property mentioned in the statute, which shall have been stolen,
or taken by robbery, wi£h a knowledge of that fact, and with
an intent to deprive the owner thereof. Nor is it necessary that
he should have known the true owner.
Warrant for receiving Stolen Horses.
KState of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, yeoman, with force and arms, on the day of
in the year of our Lord aforesaid, at, to wit, in the county afore-
said, did then and there fraudulently receive into his hands and
possession, a certain bay mare, of the value of one hundred dol-
lars, the property of one E F, of said county; which said bay
mare had been before that time feloniously stolen, taken and
carried away; and he, the said C D, then and there well know-
ing that fact, did receive the same, with an intent to deprive the
owner of the use and possession of said bay mare: These are
therefore to command you to take the said C D, if to be found in
your county, and him forthwith bring before me, or some other
justice of the peace for said county, to answer the premises, and
be dealt with as the law directs. Given under my hand and
seal, the date above written. [To be signed, &c.] .
Defendant's Recognizance.
"State of Tennessee,)
county,) SS'
Be it remembered, that on the day of in the
) ear of our Lord one thousand eight hundred and person-
ally appeared before me, G II, an acting justice of the peace
for said county, C D, I J and L M, of the county aforesaid,
and acknowledged themselves to be justly indebted to the State
of Tennessee, that is to say, the said C D in the sum of fifteen
hundred dollars, and the said I J and L M in the sum of' seven
hundred and fifty dollars each, to be levied of their respective
goods and chattels, lands and tenements; but to be void if the
said C D make his personal appearance before the judge of our
200
CRIMINAL DIVISION.
circuit "court, at a court to be holden for said county, at the
court house in the town of on the Monday of
next, then and there to answer the State of Tennessee upon a
charge of fraudulently receiving a certain bay mare, knowing
her to have been feloniously stolen, taken and carried away
with the intent to deprive the owner of her, and abide by such
sentence as shall be pronounced against him, and not departsaid
court without leave first had and obtained. Acknowledged be-
fore me, the date above written." [To be signed, &c. officially.]
Prosecutor's recognizance.
"State of Tennessee,)
county,) ss'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and per-
sonally appeared before me, G H, an acting justice of the peace
for said county, A B, and acknowledged himself to be justly
indebted to the State of Tennessee in the sum of five hundred
dollars, to be levied of his goods and chattels, lands and tene-
ments; but to be void if the said A B shall make his personal
appearance before the judge of our circuit court, at a court to
be holden for said county, at the court house in the town of
in said county, on the Monday of next, then
and there to prosecute CDon a charge of having fraudulently
received into his hands and possession, a certain bay mare, the
property of the said A B, then and there knowing the said mare
to have been stolen, and not depart said court without leave
thereof first had and obtained. Acknowledged before me, the
date above written." [To. be signed, &c.]
RECEIVING STOLEN GOODS.
"Every person who shall fraudulently receive, or buy any
goods, over the value of ten dollars, that shall have been feloni-
ously taken or stolen from another, knowing the same to be sto
len, with an intent to deprive the true owner thereof, shall un-
dergo confinement in said jail and penitentiary house for a pe-
riod not less than three nor more than ten years.
"Every person who shall fraudulently receive or buy any
goods, not exceeding ten dollars in value, that shall have been
RECEIVING STOLEN GOODS.
301
f< loniously taken or stolen from another, knowing the same to be
stolen, with intent to deprive the owner thereof, shall undergo
confinement in said jail and penitentiary house for a period not
It ss than one nor more than five years.
"The word goods, in this and the preceding sections of this
act, includes money, as well as other personal property.
"Nothing in this section shall be construed to affect the pro-
visions of the twnty-/(>urth section of this act.
"In all cases of petit larceny, and in all prosecutions for re-
ct iving stolen goods under the value often dollars, where the
jury may find the defendant guilty, the court may, on the recom-
mendition of the jury, discharge the party from the penalties im-
po»u d by thin act, and substitute, if they think proper, fine and
iini»risonment for such period of time "as the court may direct."
Pen il Laws, act of 1839, ch> 23, sec. 26."
\1I that ha.s been said as to the offence of receiving stolen
h >ra •», inn} be applied to the above sections, as there is no ma-
terial difference in them. I, therefore, refer the reader to that
hi »d, for the principles and forms governing them, as applicable
to these sections.
Form of Jhe warrant, $-c.
"State of Tennessee,) ss,—To any lawful officer to execute and
county,} return:
Whereas, complaint has been made on oath, by A B, of said
county, laborer, this day of in the year of our Lord
one thousand eight hundred and before me, Gr H, an act-
ing justice of the peace for said county, that one G D, late of
said county, with force and arms, on the day of in
■the year of our Lord one thousand eight hundred and at,
to wit, in the county aforesaid^did then and there fraudulently
receive into his hands and possession, three castor hats for gen-
th men, of the value' of twenty dollars, the proper goods and
chattels of the said A B, from one E F, late of said county, then
and there well knowing said three hats to have, been felonious-
ly stolen, taken and carried away out of the possession of the
said \ B, with the intent td deprive the owner of the possession
thereof: These are therefore to command you to take the bo'dy
of the said C D, if to be found in your county, and" him forth-
A 2.
202
CRIMINAL DIVISION.
with bring before me, or some other justice of the peace for said
county, to answer the premises, and be dealt with as the Ian-
directs. Given under my hand and seal, the date above writ,
ten." [To be signed, &c.]
This form is also applicable to the fraudulently receiving
goods which are under the value of ten dollars.
Form of the defendant's recognizance.
"State of Tennessee,)
county,) SS*
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and per-
sonally appeared C D, I J and L M, before me, G H, an acting
justice of the peace for said county, and acknowledged them-
selves to stand justly indebted to the State of Tennessee in the
sum of fifteen hundred dollars, jointly, to be levied of their goods
and chattels, lands and tenements; but to be void if the said C
D shall make his personal appearance before the judge of our
circuit court, at a court to be holden for said county, at the
court house in the town of on the Monday of
next, then and there to answer to the charge of having fraudu-
lently received into his hands and'posse'ssion, three castor hats,for
men, of the value of twenty dollars, from one E F, knowin«
them to be stolen, and abide by such sentence as shall be pro-
nounced against him in the premises, and not depart said court
until discharged by due course of law. Acknowledged before
me, the date above written." [To be signed by the justice ot
the peace.]
STEALING, AND RECEIVING STOLEN BILLS.
"Whoever shall feloniously steal, or take by robbery, any bill
of exchange, or note, or any other valuable paper-writing, shall
undergo confinement in said jail and penitentiary house lor a
period not less than three nor more than fifteen years." Penal
Laws, act of 1829, ch. 23, sec. 27.
The definition of simple larceny and robbery apply to these
offences, and need not be repeated.
BURGLARY IN THE HAY-TIME.
203
Form of a warrant for stealing a Bill of Exchange.
"State of Tennessee,) ss.—To any lawful officer to execute and
countj,5 return:
"Whereas, complaint is made on oath, by A B, of said county,
on this day of in the year of our Lord one thousand
eight hundred and before me, G H, an acting justice of the
peace for said county, that one C D, late of said county, yeoman,
with force and arms, on the day of in the year of our
Lord one thousand eight hundred and at, to wit, in the
county aforesaid, did then and there feloniously steal, take and
carry away out of the possession of the said A B, a certain val-
uable paper writing, commonly called a bill of exchange, drawn
by one E F upon L M, for the sum of two hundred dollars, in
favor of the said A B: These are therefore to command you to
take the body of the said C D, if to be found in your county, and
him forthwith bring before me, or some other justice of the
peace for said county, to answer the premises, and be dealt
with as the law directs. Given under my hand and seal, the
date above written." £To be signed, &c.J
"Whoever shall fraudulently receive any such bill of ex-
change, note, or other valuable paper writing, knowing the
same to be stolen, shall undergo confinement in said jail and pen-
itentiary house for a period not less than three nor more than
fifteen years." Penal Laws, act of 1829, ch. 23, sec. 28.
"If the bill, note, or other valuable paper writing, mentioned
in the two preceding sections of this act, purport to be of value,
it shall be deemed valuable within the meaning of said sections,
until the contrary be shown." Ibid, sec. 29.
BURGLARY IN THE DAY-TIME.
"Whoever shall break and enter into a mansion house by day,
with an intent to commit a felony, shall undergo confinement
in said jail and penitentiary house for a period not less than three
nor more than ten years.
"Every person indicted for burglary may be convicted under
this section; and persons indicted under this section, or for bur-
glary, where another felony maybe included in such charge, may
204
CHIMIN All DIVISION.
be convicted for such felony." Penal Laws, act of 1829, ch. 23,
sec. 30.
Form of a warrant for Burglary in the day-time.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint upon oath is made by A B,.this
day of in the year of our Lord one thousand eight hun-
dred and before me, G H, an acting justice of the peace
for said county, that a certain C D, late of said county, yeo-
man, with force and arms, on the day of in the year
of our Lord one thousand eight hundred and at, to wit,
in the county aforesaid, did then and there feloniously break
and enter the dwelling house of the said A B, in the day-time,
with an intent to steal one dozen silver spoons, in said house then
and there being, the property of the said A B: These are there-
fore to command you to take the body of the said C D, if to be
found in your county, and him forthwith ■ bring before me, or
some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given under my
hand and seal, the date above written." [To be signed, &e.]
Defendants recognizance.
"State of Tennessee,)
county,) ss'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D, I J and L M, before me, G H, an acting justice
of the peace for said county, and acknowledged themselves to
be justly indebted to the State of Tennessee in the sum of jtwo
thousand dollars, jointly, to be levied of their respective goods
and chattels, lands and tenements; but to be void if the said C
D shall make his personal appearance before the judge of our
circuit court, at a court to1 be holden for said county, at the
court house in the town of in said county, on the
Monday of next, then and there to answer the State of
Tennessee upon a charge of having feloniously broken and en-
tered the dwelling house of A B, of said county, in the day
time, with an intent to steal one dozen of silver spoons, in said
house then and then; b< m ' Ifo , •«». f ill- said A B, and
abide b> wu<Ji °en o-ieiuf duel ■' * u"<< •'! against him, and
cottnteIifeiting bank-bills.
205
not depart said court until discharged by due course of law.—
Acknowledged before me, the date above written." [To be
nigned, «Ac.]
Prifi enter & r<cognizance, he being also a witness.
"State of Tennessee,)
county,^ *Sm
Bo it r< m( mberod, that on the day of in the year
of our IiOrd one thousand eight hundred and personally ap-
peared A B, before mo, GII, an acting justice of the peaee for
sa'd count}, and acknowledged himself to stand justly indebted
to the State of Tennessee in the sum of five hundred dollars, to be
le\ied-of his goods and chattels, lands and tenements; but to be
■void if the said A B shall make his personal appearance before
the judge of dur circuit court, at a court to be holden for said
county, ai. the court house in the town of in said county,
on the Monday of next, then and there to prosecute
and give evidence in the case of the State against one C D, up-
on a charge of feloniously breaking and entering the dwelling
house of the said A B, with an intent to steal one dozen of silver
spoons the property of the said A B, and not depart said court
without leave thereof first had and obtained. Acknowledged
before me, the date above written. " [To be signed, &c.J
COUNTERFEITING BANK-BILLS.
"No person shall fraudulently forge, or begin to forge, or as-
nist, or be concerned in forging, or beginning to forge, the coun-
terfi it resemblahce or imitation of any bank bill, or any note,
check or draft, or any instrument which circulates as currency,
hf any corporation, company, or person, that really exists, or
ma} exist.
"No person shall fraudulently make, or begin to make, the
counterfeit resemblance, or imitation of any bank bill, or any
note, check, or draft, or other instrument purporting to be the
bill, note, check, draft, or instrument of any corporation, com-
pan}, or person, though no such corporation, company or per-
son exist.
"No p< r=on shall fraudulently buy, pay, or tender in payment,
I n*s, < r >ff «r to pass, or assist, or be concerned in fraudulently
206
CRIMINAL DIVISION.
buying, paying, or tendering in payment, or in passing, or offer-
ing to pass, the counterfeit resemblance or imitation of any bank-
bill, or any note, or check, or draft, or instrument which circu-
lates as currency, of any corporation, company or person that
really exists, or may exist, whether such bill, note, check, draft,
or instrument, be complete and filled up, or otherwise.
"No person shall fraudulently buy, pay, or tender in payment,
pass, or offer to pass, or assist, or be concerned in fraudulently
buying, paying, or tendering in payrment, or in passing, or offer-
ing to pass, the counterfeit resemblance or imitation of any bank
bill, or note, or check, or instrument purporting to be of any cor-
poration, company, or person, though no such corporation, com-
pany or person exist.
"Whoever shall commit any of the offences mentioned in
this section, shall undergo confinement in said jail and peniten-
tiary house for a period not less than three nor more than fifteen
years." Penal Laws, act of 1829, ch. 23, sec. 31.
Form of a warrant for forging the counterfeit resemblance of a
bank bill.
"State of Tennessee,) ss.—To any lawful officer to execute and
countyr,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, laborer, with force and arms, on the day of
in the year of our Lord one thousand eight hundred and
at, to wit, in the county aforesaid, did fraudulently forge
the counterfeit resemblance and imitation of a bank bill, pur-
porting to be for the sum of fifty dollars, on the Bank of the State
of Tennessee, of No. 340, dated the 1st day of April, 1825, let-
ter I), purporting to be signed by Joseph Philips as President,
and by Joel Parrisli as cashier: These are therefore to command
you to take the body of the said C D, if to be found in your
county, and him forthwith bring before me, or some other jus-
tice of the peace for said county, to answer the premises, and be
dealt with as the law directs. Given under my hand and seal,
the date above written. " [To be signed, &c.]
COUNTERFEITING BANK-BILLS.
207
Form of a warrant for passing a counterfeit resemblance of a bank-bill.
''State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day Of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, yeoman, with force and arms, on the day of
in the year of our Lord one thousand eight hundred and
at, to wit, in the county aforesaid, did fraudulently pay and pass
to the said A B, in discharge of a debt due and owing by the
said C D to the said A B, the counterfeit resemblance of a fif-
ty dollar bank bill, purporting to be on the Bank of "the United
States, of letter B, No. 1272, dated the 5th day of August, 1830,
payable at Philadelphia, purporting to be signed by N. Biddle
as president, and J. M'llvaine as cashier, he, the said C D, then
and there well knowing the same to be false and counterfeited:
These are therefore to command you to take the body of the
said C D, if to be found in your county, and him forthwith bring
before me, or some other justice of the peace for said county, to
answer the premises, and be dealt with as the law directs. Given
under my hand and seal, the date above written." [To be sign-
ed,&c. officially.]
Form of a xvarrant for buying a counterfeit resemblance of a bank bill.
uState of Tennessee,) ss.—To any lawful officer to execute and
county,} return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, with force and arms, on the day of in the
year of our Lord one thousand eight hundred and at, to
wit, in said county, did fraudulently buy of one E F, the counter-
feit resemblance of a bank bill, upon the Bank of Virginia,
purporting to be for the sum of fifty dollars, payable to John
Gamble, at Richmond, of letter A, No. 1575, dated the 7th day of
September, 1822, signed A. B. Venableas president, and Will.
Dandridge as cashier, knowing the same to be false and counter-
feit: Thesse are therefore to command you to take the body of
208
CRIMINAL DIVISION.
the said C D, if to he found in your county, and him forthwith
bring before me, or soma other justice of the peace for said coun-
ty, to answer the premises, and be dealt with as the law directs.
Given under my hand and seal, the date above written." [To
be signed, &c.]
Defendant's recognizance.
"State of Tennessee,)
county,) ss'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and person-
ally appeared before me, G H, an acting justice of the peace
for said county, C D, I J and L M, and acknowledged them-
selves to stand justly indebted to the State of Tennessee, that is
to say, the said C D in the sum of fifteen hundred dollars, and
the said E F and I J in the sum of seven hundred and fifty
dollars each, to be levied of their respective goods and chattels,
lands and tenements; but to be void if the said C D shall make
his personal appearance before the judge of our circuit court,
at a court to be holden for said county, at the court house in the
town of in said county, on the Monday of
next, then and there to answer the State aforesaid, upon a charge
of having fraudulently forged a counterfeit resemblance of a
bank bill, purporting to be for the sum of fifty dollars, on the
Bank of the State of Tennessee, and abide by such sentence as
shall be pronounced against him, and not depart said court urn
til discharged by due course of law. Acknowledged before
me, the date above written." [To be signed by the justice.]
This form of recognizance may be easily adapted to the oth-
er warrants, by saying, "for passing," "for buying," &c.
"No person shall fraudulently keep in his possession, or con-
ceal the counterfeit resemblance or imitation of any bank bill,
or any note, check, or draft, or any instrument which circulates
as currency, of any corporation, company or person^that exists,
or may exist, whether such bill, note, check, draft or instrument
be complete and filled up, or otherwise.
"Whoever shall be guilty of any of the offences mentioned in
this section, shall undergo confinement in said jail and peniten-
tiary house for a period not less than three nor more than fifteen
years." Penal Laws, act of 1829, ch. 23, sec. 32.
COUNTERFEITING BANK BILES.
209
Form of a warrant for fraudulently keeping a counterfeit bank-note
in possession.
'•State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, laborer, with force and arms, on the day of
in the jear of our Lord one thousand eight hundred and
at, to it, in the county aforesaid, did fraudulently keep and
conceal a large amount, to wit, one thousand dollars, of the coun-
terfeit resemblance and imitation of bank bills purporting to be
on various banks, that is to say, two hundred dollars on the Bank
of the United States, three hundred dollars on the State Bank
of South Carolina, two hundred and fifty on the Bank of the
State of North Carolina, and two hundred and fifty on the Bank
of the Slate of Tennessee, well knowing them to be false and
counterfeit: These are therefore to command you to take the bo-
dy of the said C D, if to be found in your county, and him forth-
with bring before me, or some other justice of the peace for
said county, to answer the premises, and be dealt with as the
law directs. Given under my hand and seal, the date above
written. " [To be signed, &c.j
"No person shall fraudulently keep in possession, or conceal,
any fictitious instrument, purporting to be a bank bill, or note,
or draft, or check, of any corporation, company, or person, whetli-
er the same be complete and filled up, or not, though no such
corporation, company or person exist.
"Whoever shall be guilty of any of the offences mentioned in
this section, shall undergo confinement in said jail and peniten-
tiary house for a period not less than three nor more than fifteen
years.', Penal Laws, act of 1829, ch. 23, sec. 33.
Form of a warrant for fraudulently keeping in possession the coun-
l< rfeit resemblance of a bank bill, on the Bank of Cahaba, there
being no such bank.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of
210
CRIMINAL DIVISION.
said county, this day of in the year of our Lord one thou-
sand eight hundred and before me, G H, an acting justice
of the peace for said county, that a certain C D, late of said
county, laborer, with force and arms, on the day of
and on many days immediately before said day, in the year of
our Lord one thousand eight hundred and did fraudulent-
ly keep and conceal in his hands and possession, the fictitious im-
itation and counterfeit resemblance of a hundred dollar bank
bill, purporting to he on the Bank of Cahaba, then and there
well knowing that there was no such bank in existence, and
never had been in existence, of letter G, No. 1740, dated the
1st of March, 1829, signed by N O, president, and R S, cashier:
These are therefore to command you to take the body of the
said C D, if to be found in your county, and him forthwith bring
before me, or some other justice of the peace for said county,
to answer the premises, and be dealt with as the law directs.
Given under my hand and seal, the date above written." [To
be signed, &c.]
"No person shall fraudulently alter or erase any genuine bill,
note, draft, check, or instrument that circulates as currency, of
any corporation, company or person.
"No person shall fraudulently keep in possession, or conceal
any such bill, note, draft, check, or instrument, that shall be
so altered or erased.
"No person shall fraudulently buy, pay, or tender in payment,
pass, or offer to pass, or assist, or be concerned in fraudulently
buying, paying, or tendering in payment, or in passing, or offer-
ing to pass, any such bill, note, draft, check or instrument.
"Whoever shall be guilty of any of the offences mentioned
in this section, shall undergo confinement in said jail and peni-
tentiary house for a period not less than three nor more than
fifteen years." Penal Laws, act of 1829, ch. 23, sec. 34.
Form of a warrant for fraudulently erasing or altering a genuine
bank note.
'State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our
Lord one thousand eight hundred and before me, G H,
COUNTERFEITING BANK BILLS.
211
an acting justice of the peace for said county, that one C D,
late of said county, yeoman, with force and arms, on the
day of in the year of our Lord one thousand eight hund-
red and at, to wit, in the county aforesaid, did then and
there fraudulently alter and erase a genuine bank note, upon the
Lank of the United States, for the sum of five dollars, letter L,
No. 3715, dated 17th of June, 1831, signed by N. Biddle, presi-
dent, and W.-M'Uvaine, cashier, so as to make said note read as
though it originally issued for the sum of fifty dollars: These are
therefore to command you to take the body of the said C D, if lo
he found in your county, and him forthwith bring before me, or
some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given under my
hand and seal, the date above written." [To be signed, &c.]
Form of a warrant for offering to pass such note.
'♦State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, grocer, with force and arms, on the day of
in the year of our Lord one thousand eight hundred and
at, to wit, in the county aforesaid, did fraudulently offer to pass a
genuine bank bill, upon the Bank of the United States, origin-
ally issued for the sum of five dollars, letter L, No. 3745, dated
the 17th day of June, 1831, signed by N. Biddle, president, and
W. MT1 vaine, cashier, which said bank bill had before that time
been erased and altered, to make it as though said bill origin-
ally issued for fifty dollars, knowing the same to b£ erased and
altered as aforesaid, to the said A B as a genuine fifty dollar bill:
These are therefore to command you to take the body of the said
C D, if to be found in your county, and him forthwith bring be-
fore me, or some other justice of the peace for said county, to an-
swer the premises, and be dealt with as the law directs. Given
under my hand and seal, the date above written." [To be sign-
ed, &c. officially.]
'No person shall fraudulently fill up, or complete, or begin to
fill up, or complete, or assist or be concerned in filling up or con?-
212
CRIMINAL DIVISION.
pleting, the counterfeit resemblance or imitation of any bank
bill, or any note, check, or draft, or any instrument that circu-
lates as currency, of any corporation, company, or person, that
exists, or may exist.
"No person shall fraudulently fill up, or complete, or assist or
be concerned in fraudulently filling up or completing, any ficti-
tious instrument purporting to be a bank bill or note, check or
draft, of any corporation, company or person, though no such
corporation, company or person exist.
"Whoever shall be guilty of any of the offences mentioned in
this section, shall undergo confinement in said jail and peniten-
tiary house for a period not less than three nor more than fifteen
years." Penal Laws, act of 1829, ch. 23, sec. 35.
Form of a warrant for fraudulently filling up the counterfeit re'
semblance of a bank bill.
"State of Tennessee,) ss.—To any lawful officer to execute and
county return:
Whereas, complaint has been made upon oath by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, laborer, with force and arms, on the day of
in the year of our Lord one thousand eight hundred and
at, to wit, in said county, did fraudulently fill up the counterfeit
resemblance of a bank bill, purporting to be on the Bank of the
State of Tennessee, for the sum of fifty dollars, with the No. 487,
date the 1st day of September, 1830, the name of C. Cooper as
payee, and with the name of Joseph Philips as president, and
Joel Parrish as cashier: These are therefore to command you to
take the body of the said C D, if to be found in your county, and
him forthwith bring before me, or some other justice of the peace
for said county, to answer the* premises, and be dealt with as the
law directs. Given under my hand and seal, the date above
written." [To be signed, &c.]
Form of the defendant's recognizance.
"State of Tennessee,)
county,5 SS'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and person-
COUNTERFEITING BANK BILLS.
213
ally appeared before me, G H, an acting justice of the peace
for said county, C D, E F and L M, and acknowledged them-
selves to stand justly indebted to the State of Tennessee, that is to
say, the 6aid C D in the sum of two thousand dollars, and the said
E F and L M in the sum of one thousand dollars each, to be levied
of their respective goods and chattels, lands and tenements;
but to be void if thfr said C D shall make his personal appear-
anre before the judge of our circuit court, at a court to be hoi-
den for said county, at the courthouse in the town of in
said county, on the ' Monday of next, then and
there to answer the State of Tennessee upon a charge of fraud-
ulently filling up the counterfeitresemblance of a bank bill, pur-
porting to be on the Bank of the State of Tennessee, for the sum
of fifty dollars, and then and there abide by such sentence as
shall be pronounced against him, and not depart said court un-
til discharged by due course of law. Acknowledged before me,
the date above written." [To be signed by the justice.]
The prosecutor's recognizance will, in many respects, be the
same with the defendant's, except that the prosecutor is to pros-
ocuto, instead of answering the charge.
The recognizance of a witness, in these cases, will be the
same in form as those already given in other offences, except as
to the description of the defendant's crime. The forms are so
numerous that it is impossible almost for anyone to err.
"So person shall fraudulently make, or prepare, or begin to
make or prepare, or assist, or be concerned in fraudulently ma»-
king or preparing any plate, or other instrument, whereby to
stamp or otherwise make the counterfeit resemblance or imita-
tion of any note, bill or check of any corporation, company or
person that exists, or may exist.
uNo person shall fraudulently make or prepare, or begin to
make or prepare, or assist or be concerned in fraudulently ma-
king or preparing any plate, or other instrument, whereby to-
stamp or otherwise make any fictitious bank bill, note, check or
draft, purporting to be of any corporation, company or person,
though no such corporation, company or person exist.
uNo person shall ^fraudulently keep in possession or conceal,
or assist or be concerned in fraudulently concealing any such
plate or instrument, whereby to stamp or otherwise make the
214
CRIMINAL DIVISION.
counterfeit resemblance or imitation of any note, bill, check or
draft, of any corporation, company or person that exists or may
exist, whether such plate or instrument be complete or not.
"No person shall fraudulently keep in possession or conceal,
or assist or be concerned in fraudulently concealing any such
plate or instrument, whereby to stamp or otherwise make any
fictitious bank bill, note, draft or check, purporting to be of any
corporation, company or person, though no such corporation,
company or person exist, whether such plate or instrument be
complete or not.
"Whoever shall be guilty of any of the offences mentioned in
this section, shall undergo confinement in said jail and peniten-
tiary house for a period not less than three nor more than fifteen
years." Penal Laws, act of 1829, ch. 23, sec. 3G.
Form of a warrant for making a plate to stamp the counterfeit
resemblance of a genuine bank bill.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late
of said county, yeoman, with force and arms, on the
day of in the year of our Lord one thousand eight
hundred and at, to wit, in the county aforesaid,
did fraudulently make and prepare a plate whereby to stamp
and make the counterfeit resemblance and imitation of the gen-
uine twenty dollar notes and bills of the Bank of the State of
Georgia: These are therefore to command you to take the body
of the said C D, if to be found in your county, and him forth-
with bring before me, or some other justice of the peace for
said county, to answer the premises, and be dealt with as the
law directs. Given under my hand and seal, the date above
written." [To be signed, &c.]
Form of a warrant for concealing and keeping a plate whereby to
stamp the counterfeit resemblance af a bank bill.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of said
COUNTERFEITING BANK BILLS.
215
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that C D, late of said coun-
ty, yeoman, with force and arms, on the daj of
in the year of our Lord one thousand eight hundred and
at, to wit, in the county aforesaid, did fraudulently keep in his
powwon, an(l conceal a plate or instrument whereby to stamp
and make the counterfeit resemblance and imitation of a genu-
ine bank bill, on the Bank of the State of Georgia, purporting
to be f >r twenty dollars: These are therefore to command you
to take the bo.dy of the said C D, if to be found in your county,
and him forthwith bring before me, or some other justice of the
peace for said county, to answer the premises, and be dealt with
as the law directs. Given under my hand and seal, the date
above written."
The form of a warrant for making, or keeping and conceal-
ing any plate or instrument for making any fictitious bank bill,
note, check, or draft, &c. can be easily drawn from the two last
precedents.
"No person shall fraudulently make or prepare, or begin to
make or prepare, or assist, or be concerned in making or pre-
paring, any paper of that description which is used for bank
bills, or notes, or other paper currency.
"No person shall fraudulently make, mend or prepare, or as-
sist, or be concerned in making, mending or preparing the paper
moulds, or other necessary machines or instruments commonly
used in tin* process of making or preparing paper of that kind
which is used for bank bills, or notes, or other paper currency.
"No person shall fraudulently keep in possession or conceal
any such paper, paper moulds, or other necessary machines or
instruments.
"Whoever shall be guilty of any of the offences mentioned in
this section, shall undergo confinement in said jail and peniten-
tiary house for a period not less than three nor more than fifteen
years." PenaJ Laws, act of 1829, ch. 23, sec. 37.
216 CRIMINAL DIVISION.
Form of a warrant for making paper of the description used fr
bank bills,
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B,
said county, this day of in the year of our Lor 1
one thousand eight hundred and before me, G II, an act-
ing justice of the peace for said county, that one C D, late oi
said county, yeoman, with force and arms, on the day uf
in the year of our Lord one thousand eight hundred an J
at, to wit, in the county aforesaid, did fraudulently make and
prepare paper of that description used for bank bills and note-,
and other paper currency. These are therefore to command you t,
take the body of the said C D, if to be found in your county, and
him forthwith bring before me, or some other justice of the peace
for said county, to answer the premises, and be dealt with as tl<
law directs, Given under my hand and seal, the date aW
written." [To be signed, &c.]
Form of a warrant for keeping in possession and concealing pap
of the description used for bank bills, notes, c^v.
"State of Tennessee.) ss.—To any lawful officer to execute and
county,) return:
. Whereas, complaint has been made upon oath, by A B, of said
eounty, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an actio;
justice of the peace for said county, that C D, laborer, with
force and arms, on the day of and on divers day
before that time, in the year of our Lord one thousand eight
hundred and at, to wit, in the county aforesaid, did fraud
Ulently keep in his possession and conceal paper of the descrip-
tion used in bank bills and notes: These are therefore to com-
mand you to take the body of the said C D, if to be found in
your county, and him forthwith bring before me, or some other
justice of the peace for said county, to answer the premises, ar.d
be dealt with as the law directs. Given under my hand and seal,
the date above written." [To be signed, &c.]
COUNTERFEITING COIN.
217
Form of the dfendanCs recognizance for the above.
"State of Tennessee.)
county, 5
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D, E F and I J, before me, G II, an acting justice
of the peace for -aid county, and acknowledged themselves to
stand ju>tiy indebted :.o the State of Tennessee, that is to say,'
the said C I) in the sum of t«o thousand dollars, and the said
E F and I J in the sum of one thousand dollars each, to be lev-
ied of their respective goods and chattels, lands and tenements;
but to be void if the said C D shall make his personal appear-
ance before the judge of our circuit court, at a court to be hold-
cn for said county, at the courthouse in the town of on
th: Monday of next, then and there to answer the
State of Tennessee upon a charge of having fraudulently made
and prepared [or kept in possession and concealed, as the case
may be.] paper of the description used in bank bills and notes,
and abide by such sentence as shall be pronounced against him,
end not depart said court until discharged by due course of law.
Acknowledged before me, the date above written." [To be
signed, &c.]
"Tin: words "corporation, company or perscn," where they
occur together in ihe preceding section of ihis act, incl de the
United States,and the several States and Tenitorics, and a 1 the
several branches of the government, or cither of t .em; all pub-
lie and private bodies politic and corporate; all partnerships, as
well as individuals." Penal Laws, act of 1829, th. 23, see. 38.
COUNTERFEITING COIN, &c.
"No person shall fraudulently make, mend, prepare, or use, or
assist, or be concerned in making, mending, preparing or using
any machine or instrument intended for the forging, counterfeit-
ingor adulterating any coin which may be current in this Siate,
either by law or usage.
"No person shall fraudulently keep in possession, or conceal,
or assist in concealing, any such machine or Instrument.
'No person shall fraudulently make, or begin to make, pre-
C 2
218
CRIMINAL DIVISION.
pare, or complete, or begin to prepare or complete, any base or
adulterated coin, in imitation of any coin which may be current
in this State, either by law or usage.
"No person shall fraudulently pass, or offer to pass, or assist ir,
passing or offering to pass, any such base or adulterated coin.
"No person shall fraudulently keep in possession, or conceal,
or assist, or be concerned in concealing, any such base or adultc-
rated coin.
"No person shall fraudulently make or prepare, or begin to
make or prepare, or assist, or be concerned in making or prepa-
ring, any piece or pieces of base or adulterated metal, intended
to be converted into the counterfeit resemblance of any coin
which may be current in this State, either by law or usage.
"No person shall fraudulently keep in possession, or conceal,
or assist, or be concerned in concealing, any such pieces of base
or adulterated metal.
"Whoever shall be guilty of any of the offences mentioned in
this section, shall undergo confinement in said jail and peniten-
tiary house for a period not less than three nor more than fifteen
years." Penal Laws, act of 1829, ch. 23. sec. 39.
Form of a warrant for passing base metal in the likeness of cur■
rent coin.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath by AB, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G II, an acting
justice of the peace for said county, that one C I), late of said
county, laborer, with force and arms, on the day of
in the year of our Lord one thousand eight hundred and
at, to wit, in the county aforesaid, did fraudulently pass to the
said A B three pieces of base and adulterated coin, purporting
to be three Spanish milled dollars: These are therefore to com-
mand you to take the body of the said C D, if to be found in
your county, and him forthwith bring before me, or some other
justice of the peace for said county, to answer the premises, and
be dealt with as the law directs. Given under my hand and
seal, the date above written." [To be signed, &c.J
COUNTERFEITING COIN.
219
Form of a warrant for making counterfeit coin.
«*State of Tennessee.) ss.—To any lawful officer to execute and
county.} return:
Whereas, complaint has been made upon oath, by A B, of
t »id county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, laborer, with force and arms, on the day of
ia the jear of our Lord one thousand eight hundred and
at, to wit, in the county aforesaid, did fraudulently make and
prepare three pieces ol base and adulterated metal, and did
convert thein into the counterfeit resemblance, likeness, imita-
tlon and similitude of three Spanish milled dollars, a coin cur-
rent in this State: These are therefore to command you to take
the body of the said C D, if to be found in your county, and him
forthwith bring before me, or some other justice of the peace
for said county, to answer the premises, and be dealt with as the
law directs. Given under my hand and seal, the date above
written." [To be signed, &c.J
Form of a zcarrant for keeping in possession and concealing any
base and adulterated metal.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,} return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, 6 H, an act-
ing justice of the peace for said county, that one C D, late of
said county, laborer, with forcer and arms, on the day of
in the year cf our Lord one thousand eight hundred and
at, to wit, iri the county aforesaid, did fraudulently keep
in his possession and conceal* twenty pieces of base metal, coun-
terfeitcd to the resemblance, likeness and imitation of twenty
Spanish milled dollars, a coin Current in this State: These are
therefore to command you to take the body of the said C D, if
to be found in your county, and him forthwith bring before me,
or some other justice of the peace for said county, to answer the.
premises, and be dealt with as the law directs. Given under
my hand and seal, the date above written." [To be signed, &c»]
220
criminal division.
Form of the defndanCs recognizance.
"State of Tennessee.) ^
county.3
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and personal,
ly appeared C D, E F and I J, before me, G II, an acting justice
of the peace for said county, and acknowledged themselves to
stand justly indebted to the State of Tennessee, that is to say,
the said C D in the sum of two thousand dollars, and the said £
F and I J in the sum of one thousand dollars each, to be levied
of their respective goods and chattels, lands and tenements;
but to be void if the said C D shall make his personal appear,
ance before the judge of our circuit court, at a court to bo
holden for said county, at the court house in the town of
on the Monday of next, then and there to answer the
State of Tennessee upon a charge of having fraudulently kept
in his possession and concealed twenty pieces of base and adul-
teratcd metal, made and counterfeited to the resemblance and
likeness of twenty Spanish milled dollars, coin current in this
State, and abide by such sentence as shall be pronounced
against him, and not depart said court until discharged by due
course of law. Acknowledged before me, the date above writ-
ten. G. H."
The defendant failing to give the requisite security, must be
committed, thus:
"State of Tennessee.)
county,) SS*
Gil, an acting justice of the peace for said county, to the shcr-
iff, or keeper of the common jaii of said county, Greeting:
Whereas, C D, late of said county, has been arrested upon a
state's warrant, by E F, a lawful officer for said county, which
said warrant was procured upon the oath of A B, of said coun-
ty; and the said C D being brought before me, and charged by
the said A B with having, on the day of in the year
of our Lord one thousand eight hundred and been guilty
of fraudulently keeping in possession and concealing twenty
pieces of base and adulterated metal, made and counterfeited
to the resemblance and likeness of twenty Spanish milled dol*
lars, coin current in the State of Tennessee: Whereupon the
FORGERY.
121
said C *D has been carefully examined, and also the witnesses
on both sides, in the prisoner's presence, all of which has been
duly recorded; from which examinations taken as aforesaid,and
now before me, no doubt remains with me of the prisoner's guilt in
the premises; 1 therefore demanded of him recognizance and good
security, in tin4 sum of two thousand dollars, for his appearance
at our next circuit court, and he /ailing to tender such securfiy:
The M' are therefore to command you to receive the body of the
said C D into jour custody, in the jail of said county, and there
to rem lin until discharged by due course of law. Given under
iny hand and seal, this day of in the year of our
Lord one thousand eight hundred and [To be signed
&c. by the justice.]
Form of the prosecutor's recognizance.
"State of Tennessee.)
v ^
county,)
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and per-
sunnily appeared A B, of said county, before me, G II, an act-
ing justice of the peace for said county, and acknowledged him-
self to stand justly indebted to the Slate ot Tennessee in the
sum of live hundred dollars, to be levied of his goods and chat-
teN, lands and tenements; but to be void if the said A B shall
make his personal appearance before the judge ot our circuit
court, at a court to be holden for said county, ut the courthouse
in the town of on the JNlondayof next, then
and th'TC to prosecute and give evidence in the case of the State
of Tennessee ngaihst C L, on a charge of having fraudulently
kept in his possession and concealed twenty pieces of base me-
tal, made and counterfeited into the resemblance and likeness
of twenty Spanish mi.'led dollars, coin current in the Suite of
Tennessee, and not depart said court without leave thereof first
had and obtained. Acknowledged before me, the date abo\e
written." [To be signed, &c.J
FORGERY.
"Forgery is the fraudulent making or alteration of a writing
to the prejudice of another's right*
222
CRIMINAL DIVISION.
"The word 'another's,'in the preceding clause, includes everj
thing that is included in the expression, 'corporation, company
or person,' as defined in the thirty-eighth section of this act.
"'Whoever shall be guilty of any forgery other than that here-
in befoie enumerated, shall undergo confinement in said jail and
penitentiary house for a period not less than three nor more than
fifteen years." Penal Laws, act of 1829, ch. 23, sec. 40.
Form of a re arrant for forging a promissory note.
"State of Tennessee,) ss.—-To any lawful officer to execute and
county,£ return:
Whereas, complaint has been made upon oath by A B, ot
laid county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, yeoman, on the day of in the year of our
Lord one thousand eight hundred and with force and arms,at
to wit, in the county aforesaid, did fraudulently forge, counterfeit
and make a certain instrument of writing, purporting to be a
promissory note, made and executed by the said A B, for the
sum of one hundred dollars, payable to the said C D, due six
months after the date of said forged note, and purporting to have
been signed in the proper hand-writing, and with the name of
the said A B, with an mtent to defraud the said A B: These
are therefore to command you to take the body of the said C
D, if to be found in your county, and him forthwith bring before
me, or some other justice of the peace for said county, to an-
swer the premises, and be dealt with as the law directs. Gi-
ven under my hand and seal the date above written. [To be
signed,-&c.]
Form of a warrant for Forgery, in altering a note under seal, or
bill single, from two dollars to two hundred dollars*
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of-said
county, yeoman, with force and arms, on the day of
in the year of our Lord aforesaid, at, to wit, in the county afore-
FORGERY.
223
•aid, did fraudulently forge and alter a certain instrument of
writing, commonly called a bill single, which bad before that
time been made, signed, sealed, and delivered by the said A B
to the said F I), for the sum of two dollars, due one month af-
tor the date of the said bill single, and dated the seventh day of
August, IS31, then and there inserting and interlining between
the words /rr > and d tllarsr the word hundred, thereby making the
Mid b'll single re.i 1 for two hundred dollars, with an intent to
d« Irttid one B I\ to whom the said C D transferred the said
lioto, thus alte-ed, by assignment to the Said E F, as and for a
true note on the said \ B, for the sum of two hundred dollars:
Tie m* are therefore to command you to take the body of the
said F D,if to be found in your county, and him forthwith bring
before me, or some other justice of the peace for said county, to
answer the premises, and, be dealt with-as the law directs.—
(tiven under my hand and seal, the date above written* [To
be signed,
Form of the- defendant's recognizance.
"State of Tennessee,)
county,j
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and . per-
soinlly appeared F and I J, before me, G H, an acting
justice of the peace for said county, and acknowledged them-
w lv< s to stand justly indebted to the S ate of Tennessee, that is
to say, the said C D in the sum- of fifteen hundred dollars, and
the suid E T and I J In the sum of seven hundred and fifty dollars
(,i< li, to be levied of their respective goods and chattels, lands
and tenements; but to be void if the said C D shall make his
personal appearance before the judge of our circuit court, at a
<nurt to be holden for said county, at the court house in the
town of in said county,on the Monday of
next, then and there to answer the State of Tennessee upon a
< li irge of fraudulently forging a promissory note for the sum of
one hundred dollars, purporting to be made and executed by A
B,of said county, to the said F B, and to abide by such sentence
as shall be pronounced against him, -and not depart said court
until discharged by due course of law. Acknowledged before
me, the date' above written," [To be signed, Ac.]
CRIMINAL DIVISION.
ThisYorm, with those immediately preceding, will show the
justice the form of the recognizance for forgery in altering an
instrument of writing, as well as the prosecutor's recognizance,
"Whoever shall fraudulently pass or transfer, or offer to pass
or transfer, any forged paper, knowing it be forged, with intent
to defraud another, shall undergo contincinent in said jail and
penitentiary house for a period not less than three nor more than
fifteen years." Penal La s, act of 1.S29, ch. 23, sec. II.
Form of a wa-ranl for passing <i forged promissory note.
'•State of Tennessee;) ss.—To any lawful officer to execute and
county,^ re.) urn:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord oni
thousand eight hundred and before rne, G IL an acting
justice of the peace for said county, that one C L), late of said
county, laborer, with force and arm-, on the day of
in the year of our Lord one thousand eight hundred and
at, to wit, in 'lie county aforesaid, did then and there fraudulent-
ly pass, by delivering to the said A B, a certain false and forged
instrument of writing, purporting to be a promissory note made
and executed by one N O, of said county, and payable to the
said C D, due three months after date, dated the sixth day of
August, in the year of our Lord one thousand eight hundred and
thirty, purporting to be for the sum of seventy-live dollars, with
an intent to cheat and defraud the said A B, lie, the said C D,
well knowing the said promissory note to be false atrd forged:
These are therefore to command you to take the body of the
said C L), if to be found in yottr county, and him forthwith
bring before me, or some other justice of the peace for said
county, to answer the premises, and be dealt with as the law
directs. Given under my hand and seal, the date above writ-
ten." ("To be signed, &x. by the justice.] m
Form of a warrant for transferring a note by assignment, knoudng
the same to be forged.
"State of Tennessee,) ss.—To any lawful officer to execute and
county ,5 return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before 'me, G H, an
PERJURY.
225
acting justice of the peace for said county, that one C D, late
of said county, laborer, with force and arms, on the day of
in the year of our Lord one thousand eight hundred and
at, to wit, in the county aforesaid, did fraudulently
transfer an instrument of writing, commonly called a promissory
note, by his written assignment on the back of the same, to the
said A B, which said note purports to be made and executed by
one E F to the said C D, for the sum of fifty dollars, due one
montli after date, and dated the 7th day of October, 1830, he,
the said C I), well knowing the said note to be false, and for-
god with an intent to defraud the said A B: These are there-
fore to command you to take the body of the said C D, if to
be found in your county, and him forthwith bring before me,
or some other justice of the peace for said county, to answer
the premises, and be dealt with as the law directs. Given un-
dor my hand and seal, the date above written," [To be signed,
Ac. ollicially by the justice.]
The recognizance for the prosecutor and defendant will, in
form, for the last cases, be as those that precede them, with the
exception of the description of the offence, which must always
be the same in substance with the warrant. The same may be
said of the mittimus for want of sufficient security.
PERJURY.
"When a lawful oath or affirmation is administered in some
judicial proceeding, to a person who swears, or affirms, wilfully,
absolutely, and falsely, in a matter material to the issue or point
in question, such person shall be deemed guilty of perjury."—
Penal Laws, act of 1829, ch. 23, sec. 42.
Swearing falsely does not always make out the crime of per-
jury, as will be readily seen by noticing all the members of
the statutory definition here given.
1. The false or untrue matters or things must be sworn to
wilfully; that is, not through mistake, surprise, or the like.—
2. The swearing must be absolute; that is, freely, uncondition-
ally, independently: not with express reservations or limitations,
made and used as part of the matter deposed* to at the time of
swearing.
D 2
226
CRIMINAL DIVISION.
To support the charge of perjury, these points must he sub-
stantially made out by proof.
Form of a warrant for Perjury.
"State of Tennessee,") ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B,of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, laborer, being an evil and wicked-disposed person, not
having any regard towards the laws of God and man, with force
and arms, on the day of in the year of our Lord
one thousand eight hundred and ' at, to wit, in the county
aforesaid, in a certain suit pending in the circuit court of said
county, [or county court, or before G H, a justice of the peace
for said county, as the case may be,] wherein A B was plaintiff
and E F was defendant, the said C D was then and there intro-
duced as a witness, and sworn in said cause, then on trial by the
said G H, [or before said court] on behalf of said defendant,
and being so sworn, did, in a matter material to the issue and
point in question, swear and depose wilfully, absolutely and false-
ly [here insert the fact sworn to,] well knowing the same to be
false and untrue; by means and reason whereof the said C D did
then and there commit the crime of wilful and corrupt perjury:
These are therefore to command you to take the body of the
said C D, if to be found in your county, and him forthwith bring
before me, or some other justice of the' peace for said county, to
answer the premises, and be dealt with as the law directs.—
Given under my hand and seal, the date above written." [To
be signed, &c. by the justice.]
When the justice before whom the process is returned, shall
have examined the prisoner, and the witnesses on both sides,
and have recorded the same, as pointed out in the preceding
pages of this division, and shall be of opinion that the defendant
is guilty of the crime of perjury, he shall take a recognizance
from him, with good security, in the sum of two thousand dol-
lars, of the form following, that is to say:
PERJURY.
227
"State of Tennessee,)
county,) ss'
De it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D, I J and L M, before me, G H, an acting justice
of the peace for said county, and acknowledged themselves to
be indebted to the Slate of Tennessee, that is to say, the said
C I) in the sum of two thousand dollars, and the said I J and
L M, jointly, in the sum of two thousand dollars, to be levied of
their respective goods and chattels, lands and tenements; but to
be void if the said C D shall make his personal appearance be-
fore the judge of our circuit court, at a court to be holden for
said county, at the court house in the town of in said conn-
ty, on the Monday of next, then and there to an-
swer the State of Tennessee upon a charge of wilful and corrupt
perjury, committed before in a certain suit pending
before the wherein A B was plaintiff and E F was de-
fendant, and abide by such sentence as shall be pronounced
against him, and not depart said court until discharged by due
course of law. Acknowledged before me, the date above writ-
ten. G- H."
But should the defendant be unable or unwilling to give the
security required, the justice must commit him to jail to await
his trial, by a mittimus of the form following:
"State of Tennessee,) ss.—To the sheriff or keeper of the com-
county,) mon jail of said county, Greeting:
Whereas, C D, late of said county, laborer, was arrested by
N O, a lawful officer for said county, upon a state's warrant,
procured upon the oath of A B, of said county, and brought be-
fore me, G II, an acting justice of the peace for said county,
this day of in the year of our Lord one thousand
eight hundred and wherein the said A B has charged the
said C D, upon oath, of the crime of wilful and corrupt perjury,
in swearing wilfully, absolutely and falsely, where a lawful oath
had been administered to him> the said C D, before
when introduced as a witness on behalf of the defendant, in a
certain suit pending before the said wherein A B was
plaintilf and E F was defendant, on the day of in
the year of our Lord one thousand eight hundred and
228
CRIMINAL DIVISION.
at, to wit, in the county aforesaid; and I, the said GH, having
examined the said C D, as required by law, and the witnesses
for the defendant as well as for the said State, and recorded the
same in writing, and from such examination, so taken and record-
ed, and now before me, no doubt remains with me of the de-
fendant's guilt; and the said defendant failing to give the re-
cognizance and security required of him for his appearance at
the circuit court of said county: These are therefore to com-
mand you to receive the said C D into your custody, in said
jail, there to remain until discharged by due course of law.—-
Given under my hand and seal, the date above written. G. IU
"Whoever shall be guilty of perjury, shall undergo confine-
ment in said jail and penitentiary house for a period not less
than three nor more than fifteen years." Penal Laws, act of
1829, ch. 23, sec. 42.
The form of the proceedings for the crime of perjury, forwil-
fully, absolutely and falsely affirming, will be the same in every
respect as the above, except where the word 'swear' occurs, the
word 'affirm1 must be used»
SUBORNATION OF PERJURY.
^'Every person who shall unlawfully and corruptly suborn, or
procure any person to commit perjury, shall be deemed guilty
of subornation of perjury, and shall undergo confinement in
said jail and penitentiary house for a period not less than three
nor more than fifteen years." Penal Laws, act of-1829, ch. 23,
sec. 43.
Subornation of perjury, at the common law, is thus defined:
"the procuring another to take such an oath as constitutes per-
jury in the principal." Then, whoever shall unlawfully and cor-
ruptly procure another to swear wilfully, absolutely and falsely,
in a matter material to the issue, or point in question,in someju-
dical proceeding, when a lawful oath is administered to him, is
guilty of subornation of perjury. It is lawful for every suitor to
call witnesses and examine them on his behalf, and is guilty of
no»wrong in the eye of the law, though the witness should com-
mit perjury, unless he hired, or persuaded, or entreated them to
swear to certain facts which he knew to be false and untrue.—
SUBORNATION OF PERJURY.
229
And a man may be said to be guilty of subornation of perjury
when he introduces a witness fphom he knows will swear falsely
on his behalf though he may never have hired, persuaded or en-
treated him to swear falsely, because it is procuring him to swear
falsely, when he introduces him, knowing he will swear falsely
tor him.
Form of a warrant for subornation of perjury*
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, beirg a wicked and evil-disposed person, not regarding
the laws of God or man, with force and ahns, at, to wit, in the
county aforesaid, on the day pf in the year of our Lord
one thousand eight hundred and then and there having a suit
pendingin the court of pleas and quarter sessions for said county,
wherein the said CD was plaintiff and said A B was defendant,
which said suit came on to be tried and determined by the jus-
tires of said court on. the day and year last aforesaid; and upon
said trial, the said C D introduced one E F as a witness on his
behalf, and procured him to be then and there duly sworn before
tho ju.slices aforesaid, and he being so sworn, did then and there
unlawfully and corruptly suborn and procure the said E F to swear
and depose tbht [here state the Tacts to which he swore,] then
and there being mateilal to the issue and point in question, well
knowing the same to be false and untrue J by means and by rea-
son whereof the said C D did then and there commit the crime
of subornation of perjury: These are therefore to command
you to take the body of the said C D, if to be found in your
county, and him forthwith bring before me,or some other justice
of the peace for said county, to answer the premises, and be
dqalt with as the law diretts. Given under my hand and seal,
the date above written." [To be signed, &c.]
Form of the defendants recognizance.
"State of Tennessee,)
county,)
Be it remembered, that on the day of in the
230
CRIMINAL DIVISION.
year of our Lord one thousand eight hundred and person-
ally appeared before me, G H, an acting justice of the peace
for said county, C D,I J and L M, and acknowledged them-
selves to stand justly indebted to the State of Tennessee, that is
to say, the said C D in the sum of two thousand dollars, and
the said I J and L M in the sum of one thousand dollars
each, to be levied of their respective goods and chattels, lands
and tenements; but to be void if the said C D shall make his
personal appearance before the judge of our circuit court, at
a court to be holden for said county, at the court house in the
town of in said county, on the Monday of
next, then and there to answer the State of Tennessee upon a
charge of subornation of perjury, in procuring one E F to com-
mit the crime of perjury, when lawfully sworn before the court
of pleas and quarter sessions of said county, in a certain suit
wherein O P was plaintiff and A B was defendant, and abide by
such sentence as shall be pronounced against him, and not de-
part said court until discharged by due course of law. Ac-
knowledged before me, the date above written." [To be sign-
ed by the justice.]
The mode of taking the recognizance of the prosecutor and
witnesses will be the same as heretofore pointed out.
To support the prosecution, every branch of the definition of
subornation of perjury should be made out by the proof sub-
stan ti ally.
BRIBERY.
"When a judge, justice of the peace, or other person concern-
ed in the administration of justice, shall unlawfully and corrupt-
ly take any undue reward, by way of bribe, to influence his
behaviour in office, he shall be defemed guilty of bribery, and
shall undergo confinement in said jail and penitentiary house for
a period not less than three nor more than twenty years." Penal
Laws, act of 1829, ch. 2?, sec. 44.
In this State, the judges are allowed stated salaries as a com-
pensatiqn for all their official services, whether in -or out of
court, and are allowed no other fee or reward, of a pecuniary
nature, for any thing done by them in the exercise of their of-
BRIBERY.
231
fWa The justices of the peace have poor compensation allow-
ed them by way of fees, which are fixed by law, and they are
not authorized to receive any other compensation or reward
lroin either of the parties in a suit. But to constitute the act
of bribery, several things are necessary to be made out by the
proof. 1. There must be a taking and receiving of something
of value. 2. It must be taken as an undue reward; that is, not
right, not legal, not agreeable to duty. 3. It must be received
to influence him, as a directive or impulsive power on his beha-
viour in his office. 4 Bl. C. 129. 1 Hawk. P. C. 168.
Fu)~m rf a icarrant against a Judge, for the taking of a bribe from
a plaintiff in a cause.
'•State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
"Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G II,
an acting justice of the peace for said county, that one C I),
late of said county, circuit judge, with force and arms, at, to
wit, in the county aforesaid, on the day of in
the year of our Lord one thousand eight hundred and
be, the said C D, so being judge as aforesaid, and presiding
as such in the circuit court of said county, a certain action of
trover, for the recovery of the value of a negro man by the
name of Sam, a slave for life, of the value of six hundred dol-
lars, was pending in said court, wherein E F was plaintiff and
the said A B defendant, then and there came on to be tried
and determined before the said C D, and pending the said trial,
the said E F did offer to, and the said C D did then and there
take and receive, one hundred dollars, in silver coin, unlawful-
1 y and corruptly, as an undue reward and bribe to influence his
behaviour in behalf of said E F, on the trial aforesaid: These
are therefore to command you to take the body of the said C D,
if to be found in your county, and him forthwith bring before
mc, or some other justice of the peace for said county, to an-
swcr the premises, and be dealt with as the law directs. Giv-
en under my hand and seal, the date above written." [To be
signed, &c.]
232
CRIMINAL DIVISION.
Form of the defendant''s recognizance.
"State of Tennessee,)
county,5 SS'
Be it remembered, that on the day of in ^
year of our Lord one thousand eight hundred and ),f.
sonally came before me, G H, an acting justice of the p ar.
for said county, C D, I J and L M, and acknowledged then,.
selves to stand justly indebted to the State of Tennessee, that i<
to say, the said C D in the sum of two thousand dollars, an 1 the
said I J and L M in the sum of one thousand dollars each,fto be
levied of their respective goods and chattels, lands and/ tene-
ments; but to be void if the said C D shall make his personal
appearance before the judge of our circuit court, at a court to
be holden for said county, at the court house in the town of
on the Monday of next, then and fhere to
answer the State of Tennessee upon a charge of having unlawfully
and corruptly taken and received one hundred dollars,/in silver
coin, as an undue reward and bribe to influence his ^ehaviour
on behalf of one E F, in a suit pending and on tfial in said
county, wherein said E F was plaintiff, and A B ^as defeDd-
ant, and abide by such sentence as shall be pronouhced against
him in the premises, and not depart said court until discharged
by due course of law. Acknowledged before me, the date above
written." [To be signed by the justice of the peace.]
EMBRACERY.
"Whoever shall corruptly give any bribe to any-judge, justice
of the peace,juror, or other person concerned in the administra-
tion of justice, or procure any or either of them to take gain or
profit by way of bribe, to influence the decision or verdict to be
rendered by such officer, shall be deemed guilty of [bribery or]
embracery, and shall undergo confinement in said jail and pen-
itentiary house for a period not less than two nor more than ten
years." Penal Laws, act of 1829, ch. 23, sec. 45.
In the consideration of the first member of this section, it will
be observed, that the thing given must be accompanied with
the corrupt motive of intending to influence the decision or ver-
diet to be rendered by such person. The intent is the point
EMBKACEIIY.
233
upon which the question of crime must turn. Though something
of value may be given to a judge, justice or juror, pending a
suit, and be received by him, yet if the thing was not given and
received to influence the judicial behavior of such officer, it will
not amount to the offence of giving a bribe, or embracery, on
the part of the giver, or be bribery or embracery on that of the
receiver.
The principle of embracing a juror, is, in every respect, the
3ame as bribing a judge, justice of the peace, or mayor of a
citv or town corporate, clerk and master in chancery, commis-
sioners to adjudicate and audit claims, treasurers of the State,
county trustees, and all officers who have judicial duties to per-
form.
Form of a warrant for the crime of giving a bribe to a justice of
the peace.
''State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late3f
said county, planter, being a wicked and corrupt person, and
desirous to contaminate the officers, and to pervert the course of
justice, with force and arms, at, to wit, in the county aforesaid,
on the day of in the year of our Lord one thou-
sand eight hundred and did then and there corruptly give
a bribe of one hundred dollars, in bank notes, on the Bank of
the United States, to one I J, Esquire, an acting justice of the
peace, then presiding as one of the members of the court of
pleas and quarter sessions for the county aforesaid, to influence
the decision of said I J in favor of the said C D, on the trial of
an action of detinue, for two negro men, slaves for life, of the
names of Jo. and Horry, wherein A B was plaintiff, and the said
r D was defendant, then and there on trial in said court: These
are therefore to command you to take the body of the said C
D, if to be found in your county, and him forthwith bring be-
fore me, or some other justice of the peace for said county, to
answer the premises, and be dealt with as the law directs. Giv-
en under my hand and seal, the date above "written." [To be
■ignedj&c.] E 2
234
CRIMINAL DIVISION.
If the justice should he of opinion that the defendant is guil-
tj of the crime charged upon him, and he is unable to give such
recognizance and security as shall be required, he shall commit
the prisoner to jail to await his trial.
Form of the mittimus.
"State of Tennessee,) ss.—To the sheriff, or keeper of the com-
county,) monjail of said county, Greeting;
Whereas, C D, late of said county, planter, was arrested bjN
O, a lawful officer for said county, upon a state's warrant, procu-
red upon the oath of A B, of said county, and brought before me,
G H, an acting justice of the peace for said county, this
day of in the year of our Lord one thousand eight hund-
dred and wherein and whereupon the said A B has
charged the said C D upon oath, of the crime of corruptly giving
a bribe of one hundred dollars, in bank notes, on the Bank of
the United States, to one I J, Esquire, an acting justice of the
peace for said county, and then presiding in the court of pleas
and quarter sessions, to influence the decision of the said I J in
his favor, on the trial of an action of detinue for two negro men,
slaves for life, by the names of Jo. and Harry, wherein the said
A B was plaintiff, and the said C D defendant, then and there
on trial in said court; and I, the said G II, having carefully ex-
amined the said C D, and the witnesses, as well for the defend-
ant as for the State aforesaid, and recorded the same in writing,
which said examinations are now before me, and from which I
entertain no doubt of the guilt of the defendant, and he having
failed to give the recognizance and security required of -him:
These are therefore to command you to receive the said € D
into your said jail, and there to remain securely, until discharged
by due course of law. Given under my hand and seal, the date
above written." [To be signed. &c.]
Form of a warrant for the crime of embracing a juror.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of'our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, laborer, being an evil-disposed person, regardless of the
EMBRACERY.
§35
laws of God and man, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year of our
Lord one thousand eight hundred and did then and there
corruptly give an embrace of fifty dollars, in silver coin, to one
E r, then and there sworn ?md empannelled as q. juror in the
trial of a certain suit wherein A B was plaintiff and C D was
defendant, in an action of detinue for two negro men, slaves for
life, by tho names of Jo. and Harry, to influence the verdict of
the said E F in fiivor of the said C D: These are therefore to
command you to take the body of the said C D, if to be found in
your county, and him forthwith bring before me, or some other
justice of the peace for said county, to answer the premises,
and be dealt with as- the law' directs. Given under my hand
and seal, the date above written." [To be signed, &c.]
D<fendanfs recognizance.
4iState of Tennessee,)
county,) ss'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C 1), L M and II S, before me, G H, an acting justice
of the peace for said eounty, and .acknowledged themselves to
be justly indebted to the |§tate of Tennessee, that is to say, the
said C D in the sum of fifteen hundred dollars, and the said
L INI and R S in the sum of seven hundred and fifty dollars each,
to be levied of their respective goods and chattels, lands and
tenements; but to be void if the said CD shall make his per-
Honal appearance before the judge of our circuit court, at a court
to be holden for said county, at the court house in the town of
in said county, on the Monday of next,
then and there to answer the Stateof Tennessee upon a charge
of the crime of embracery, in embracing one E F, when sworn
as a j uror, in a suit wherein A B was plaintiff and C D was
defendant, by corruptly giving to the said E F fifty dollars, in
silver coin, to influence the verdict of the said E F in favor of
the said 0 D* and to abide by such sentence as shall be pro-
nounced against him, and not depart said court until discharged
by due course of law. Acknowledged before me, the date
above written." [To be signed, &c.j
23G
CRIMINAL DIVISION.
REMOVING LAND MARKS.
"Whoever shall unlawfully, knowingly, wilfully and corrupt-
ly destroy the corner tree of another's land, shall undergo con,
finement in said jail and penitentiary house for a period not les5
than two nor more than five years." Penal Laws, act of 1829,
ch. 23, sec. 46.
There are many terms used in the" constitution and definition
of this offence, and in the consideration of it; aad they must all
have a meaning given to them. It is requisite to constitute
the offence, that the act was done, 1. Unlawfully; that is, with-
out the authority or license of the owmer of the corner tree: for
every cutting a tree, the property of another, is unlawful; but
without something more., fit will amount only to a trespass.—
2. The act must be done knowingly; not by accident, but know-
ing the same to be a corner tree. 3. It must be done wilfully; that
is, intentionally and by design. The act may have all these ex-
pletives of unlawfully,'knowingly and wilfully, and yet be no more
than a mere trespass, and not punishable under our criminal
code. Suppose a hunter in pursuit of a bear, and his dogs run
it up the corner tree of another, and the hunter shoots the bear,
which, falling, lodges in a fork of the tree, and no reasonable
way is left him to get his bear, but to cut down the tree, he then
and there well knowing the tree to be the corner tree of ano-
ther's land; suppose he cuts it down under these circumstances.
Here the act is done wilfully, knowingly and unlawfully; but
the act wants yet one feature to make it a crime under this sec-
tion of the statute; that is, it must be done corruptly, to destroy
the corner thereby. When "the act is accompanied by these
four things, the crime is complete, and not before.
Form of a warrant for destroying a corner tree.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, planter, with force and arms, at, to wit, in the coun-
ty aforesaid, on the day of in the year of our Lord one
destroying corner trees.
237
thousand eight hundred and did then and there unlawful-
ly, knowingly, wilfully and corruptly cut down and destroy a
corner tree, being the north-west corner of a tract of land, the
property of one E F: These are therefore to command you to
take the body of the said C D, if to be found in your county,
and him forthwith bring before me, or some other justice of the
peace for said county, to answer the premises, and be dealt with
as the law directs. _ Given under my hand and seal, the date
above written. » [To be signed, &c.]
Note.—If the tree is a corner to m6re tracts than one, and
they belonging to different owners, the warrantor bill of indict-
nient may charge the tree as the property of any one of them,
or as the corner tree of all of them.
Form of the Recognizance for the Defendant.
"State of Ten nessee,)
county.^ ss'
Be it remembered, that on the day of . in
the year of our Lord one thousand eight hundred and
personally appeared C D, I J, and L M, and acknowledged
themselves to stand justly indebted to the state of Ten-
ne^ee in the sum of fifteen hundred dollars, jointly, to be levied
of their respective goods and chattels, lands and tenements; but
to be void if the said C D shall make his personal appearance
b< fore the Judge of our Circuit Court, at a court to be holden
for said county, at the court house in the town of in said
county, on the Monday of next, then and there to
answer the state of Tennessee upon a charge of unlawfully,
knowingly, wilfully,and corruptly, cutting down and destroying
a corner tree, it being the north west corner of a tract of land
the property of one E F, and abide by such sentence as shall
be pronounced against him, and not depart said court until dis-
(barged by due course of law. Acknowledged before me, the
date above written." [To be signed,&c.]
238
CRIMINAL DIVISION.
DESTROYING A WILL.
"Every person who shall corruptly destroy or conceal the la-t
will and testament of a decedent, or any codicil attached there,
to, with intent to prevent the probate thereof, or to defraud any
legatee or devisee under such will or codicil, shall undergo con-
finement in said jail and penitentiary house for a period notice
than three nor more than fifteen years." Penal laws,'act 182,).
ch. 23, sec. 47.
Many offences are included in this section. 1st. "Whoever
shall corruptly destroy a will," The destruction of the will mu>t
he done corruptly, that is, viciously, wickedly, dishonestly and
impurely, "with an intent to prevent the probate thereof, or to
defraud any devisee or legatee." 2d. "Whoever shall "corrupt-
ly conceal any will and testament," with intent to prevent the
probate thereof, or to defraud any legatee or devisee." 3J. "Who-
ever shall corruptly destroy any codicil attached to a will, to pro-
vent the probate thereof, or to defraud any devisee or legatee."
4th. "Whoever shall corruptly conceal any codicil attached to
a will." The destruction of the will or codicil must not onlj br
corruptly, but it must be done for one of two objects, that is to
say, to prevent the probate, or to defraud some legatee, or sonic
devisee. A legatee is one who has something of value left him
by a last will and testament, or by a codicil attached thereto.
A devisee is one to whom something of value is granted by will.
&c. These terms are nearly synonymous.
Form of a Warrant for destroying a Will.
"State of Tennessee,) ss.—To any lawful officer to execute ami
county,£ return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, merchant, with force and arms, at to wit, in
the county aforesaid, on the day of in the year of our
Lord one thousand eight hundred and did then and there
corruptly destroy the last will and testament of E F* deceased,
with intent to prevent probate thereof: These are therefore to
command you to take the body of the said C D, if to be found in
DESTROYING WILLS.
239
jrour county, and him forthwith hring before me, or some other
justice of the peace for said county, to answer the premises, and
be dealt with as the law directs. Given under my hand and
seal, the date above written." [To be signed, &c.j
Form of a warrant for concealing a Will with intent to defraud the
Legatees.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, -by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that C D, late of said coun-
ty, planter, with force and arms, on the day of
in the year of our Lord one thousand eight hundred and
at, to wit, in the county aforesaid, did then and there corruptly
conceal the last will and testament of E F, deceased, with-intent
to defraud I J and L M, legatees, to whom legacies were left
in and by said last will and testament, by the said E F,
deceased: These are therefore to command you to take the
body of the said C D, if to be found in your county, and him
forthwith bring before-me, or some others justice of the peace
for said county, to answer the premises, and be dealt with as the
law directs. Given under my* hand and seal, the date above
ritten." [To be signed, &c.]
Form of a Recognizance for the Defendant.
"State of Tennessee,)
county,) ss'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally ap-
peared,C D, I J and LM, before me, G H, an acting justice of
the peace for said county, and acknowledged themselves to stand
justly indebted to the state ^f Tennessee, that is to sayj the said
C P in the sum of fifteen hundred dollars, and the said I J and
L M in the sum of seven hundred and fifty dollars each, to be
1< vied of their respective goods and chattels, lands and tene-
mentu; but to be void if the said C D shall make his personal ap-
pearance before the judge of our circuit court, at a court to be
holden for said county on the Monday of next, at
the court house in the town of in said county, then and
240
CRIMINAL DIVISION.
there to answer the State of Tennessee upon a charge of hav-
ing corruptly destroyed the last will and testament of E F, with
an intent to prevent its probate, and abide such sentence as shall
be pronounced against him, and not depart said court until dis-
charged by due course of law. Acknowledged before me, the
date above written." [To be signed, &c.]
The form of a recognizance for corruptly concealing a last
will and testament, will be the same in every respect as the above,
with this exception only, that wlpere the word "destroy" occurs,
the word "conceal" must be used in its place. The same may
be said of the forms of warrants and recognizances for destroy
ing or concealing any codicil; wherever the words "last will and
testament" occur, the word "codicil" must be substituted.
A codicil is a supplement to a last will and testament, en-
larging, restraining or limiting its provisions.
STEALING PUBLIC RECORDS.
" No clerk, lawyer, or other person, shall corruptly steal, take
away, withdraw, or avoid, any record, or parcel of the same,
writ, return, pannel, process, or warrant of attorney, with in-
tent to injure another.
" Whoever shall commit any of the offences mentioned in this
section, whereby any judgment shall be reversed, or party in-
jured, shall undergo confinement in said jail and penitentiary
house for a period not less than three nor more than fifteen years."
Penal laws, act of 1829, ch. 23, sec. 48.
The offences here expressed, are only complete when a per-
son shall corruptly steal, take away, withdraw, or avoid, any re-
cord, or parcel of the same, whereby any judgment shall be re-
versed, or party injured thereby. The offence must be commit-
ted with an intent to injure another; and that act shall have had
the effect to occasion a judgment to be reversed, or a party inju-
red thereby,
Form of a warrant for taking away a record.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
STEALING PUBLIC RECORDS.
241
one thousand eight hundred and before me, G II, an act-
ing justice of the peace for said county, that one C D., late
of said county, attorney at law, with force and arms, at,
to nit, in the county aforesaid, on the day of
in the ) ear of our Lord one thousand eight hundred and
did then and there corruptly take away a record out of and from
the oHice of the clerk of the circuit court of said county, contain-
ing a writ of summons, bond for the prosecution, sheriff's return
011 said summons, declaration, plea and issue, in a suit wherein
'-aid A 15 was plaintiff, and one E F was defendant, then and
there pending in said court, with an intent to injure the said A
I>; by means and by reason thereof, when the said cause was
cullc d for trial, the said A B was compelled to suffer a nonsuit,
and was greatly injured thereby: These are therefore to com-
maud you to take the body of the said C D, if to be found in
jour county, and'him forthwith bring before me, or some other
ju.-tice of the peace for said county, to answer the premises,
and be dealt with as the law directs. Given under my hand
and seal, the date above written. » [To be signed, &c.]
Farm of a warrant for stealing a writ, summons, and prosecution
bond.
KState of Tennessee,) ss.—To any lawful officer to execute and
county ,3 return:
Whereas, complaint has been made upon oath by A B, of
'•aid count}", this day of in the year of our Lord one
thnusind eight hundred and before me, G H, an acting
jn- ice of the peace for said county, that one J B, late of said
ci mil}, attorney at law, with force and arms, at to wit, in
the county aforesaid, on the day of in the year of our
Lord one thousand eight hundred and did corruptly steal,
take, and carry away, out of'and from the office of the clerk of
the court of pleas and quarter sessions of the county aforesaid, a
certain writ of summons and prosecution bond, in a certain suit
in said court pending, wherein said A B was plaintiff, and one E
F was defendant, with an intent to inj,ure the said A B, and
by means and by reason thereof the said A B was put to
gi cat delay and expense in his said suit, and thereby was greatly
injured: These are therefore to command you to take the body
of the said J B, if to be found in your county, and him forthwith
F 2
242
CRIMINAL DIVISION.
bring before me, or some other justice of the peace for said
county, to answer the premises, and be dealt with as the law di-
rects. Given under my hand and seal, the date above writ-
ten." [To be officially signed and sealed by the justice.]
Form of a warrant for withdrawing from thefles a warrant oj attorney,
"State of Tennessee,) ss.—To any lawful officer to execute and
county, ) return:
Whereas, complaint has been made upon oath by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, sheriff, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year of our Lord
one thousand eight hundred and did then and there cor-
ruptly withdraw from the files of the clerk's office of the circuit
court of the county of a certain warrant of attorney, made
by one E F, of said county, wherein and whereby he authorized
and empowered I J, Esquire, attorney at law, to confess a judg-
ment in and before said circuit court, at term thereof, for
the sum of five hundred dollars, in favor of the said A B, which
said judgment had been accordingly confessed, with intent to
injure the said A B, and by reason whereof the judgment of said
court, so as aforesaid confessed, was, on motion of the attorney of
the said E F, reversed, set aside, and for nought held, because of
the corrupt withdrawal of said warrant of attorney: These arc
therefore to command you, to take the body of the said C D, if
to be found in your county, and him forthwith bring before me,
or some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given under
my hand and seal, the date above written." [To be signed, &c.]
Form of a warrant for avoiding a part of a record.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day'of- in the year of our Lord one thou-
sand eight hundred and before me, G II, an acting justice of
the peace for said county,' that one C D, late of said county,
clerk, with force and arms, at, to wit , in the county aforesaid, on
the day of in the year of our Lord one thousand
STEALING PUBLIC RECORDS.
243
eight hundred and did then and there corruptly alter,
erase, blot out and avoid a part of a record, to wit, a verdict,
and judgment thereon, in a certain action of debt, wherein A B
was plaintiff and E F was defendant, and which had been before
that time legally rendered and recorded in the minutes of said
court, with intent to injure the said A B, by reason and by means
whereof the said verdict and judgment were rendered of no use
or force, to the great expense, delay and injury of the said A B:
These are therefore to comm^d you to take the body of the
said C D, if to be found in your county, and him forthwith bring
before me, or some other justice of the peace for said county, to
answer the premises, and be dealt with as the law directs. Giv-
eu under my hand and seal, the date above written." [To be
signed, &c.]
Form of a recognizance for stealing a writ of summons, and pros-
ecution bond.
"Slate of Tennessee,)
county,) SSt
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and person-
ly appeared C D,I J and L M, before me, G II, an acting justice
of the peace for said county, and acknowledged themselves to
stand justly indebted to the State of Tennessee, that is to say,
the said C D in the sum of fifteen hundred dollars, and the said
I J and L M in the sum of seven hundred and fifty dollars each,
to be levied of their respective goods and chattels, lands and
tenements; but to be void if the said C D shall make his perso-
nal appearance before the judge of our circuit court, at a court
to be holden for said county, at the court house in the town of
on the Monday of next, then and there to
answer the Slate of Tennessee upon a charge of corruptly steal-
ing, taking and carrying away a writ of summons, and prosecution
bond, in a certain suit wherein A B was plaintiff and one E F
was defendant, and abide by such sentence as shall be pronoun-
ced against him, and not depart said court until discharged by
due course of law. Acknowledged before me, the date above
written* G. H."
244
CRIMINAL DIVISION.
Form of a recognizance for withdrawing from the file a warrtuo
of attorney.
''State of Tennessee,)
> ss
count}-,5
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personal!}-
appeared C D, I J and L M, before me, G II, an acting juslio
of the peace for said county, and acknowledged themselves h
stand justly indebted to the Stal^of Tennessee, that is to say
the said C D in the sum of sixteen hundred dollars, and the said
I J and L M in the sum of eight hundred dollars each, to be lev-
ied of their respective goods and chattels, lands and tenement;
but to be void if the said C D shall make his personal appear-
ance before the judge of our circuit court, at a court to be hold-
en for said county, at tire court house in the town of in
said county, on the Monday of next, then and there
to answer the State of Tennessee upon a charge of having err-
ruptly withdrawn from the files of the clerk's office of the circuit
court of said county, a certain warrant of attorney, made by one
E F, of said county, wherein and whereby he authorized I J,
Esq. attorney at law, to confess a judgment for the sum of fne
hundred dollars, in and before said circuit court, at the.
term thereof, and which judgment was then and there confessed,
with intent to injure the said A B; by means and by reason
whereof, the judgment of said court, so as aforesaid confessed,
was set aside, reversed, and for nought held, by reason of the
corrupt withdrawal of said warrant of attorney, and abide by
such sentence as shall be pronounced against him, and not de-
part said court until discharged by due course of law. Acknow-
ledged before me, the date above written." [To be signed
by the justice.]
A recognizance in any of the other cases, will be easilymade
from observing the statement of the olfi-ncc in the warrants.
STEALING BOOKS AND PAPERS.
245
STEALING BOOKS AND PAPERS.
"Whoever shall corruptly steal, take away, withdraw or avoid,
with an intent to injure another, any hook, or part thereof, or
paper, belonging to any of the public offices of this State, where-
by any person is or shall be injured, shall undergo confinement
in said jail and penitentiary house for a period not less than
three nor more than fitteCn years.-' renal Laws, act of 1829,
ch. 23, sec. 19.
The same may be said of this section as of the 48th, that ma-
ny offences are included in it. 1. Whoever shall corruptly steal
anv book, or part thereof, belonging to the public offices of this
State, with an intent to injure another. 2. Whoever shall cor-
ruptly take (though he does not intend to steal) away any book
belonging to any of the public offices of this State, with an in-
tent to injure another. 3. Whoever shall corruptly take (though
he d< >es not intend to steal) any paper belonging to any public
office of this State, with an intent to injure another. 4. Who-
e\er shall corruptly withdraw any book, or part thereof, belong-
ing to any public office of this State, with an intent to injure
another. 5. Whoever shall corruptly withdraw any paper be-
longing to any of the offices of this State, with an intent to injure
another, fi. Whoever shall corruptly avoid any book, or part
thereof, belonging to any public office of this State, with an in-
tent to injure another- 7. tVhoever shall corruptly avoid, any
paper belonging to any public office of this State, with an in-
tent to injure another.
T1 ie offices here spoken of, are, the secretary of State's office,
the treasurers' offices, the registers' offices, the surveyor general's
ofiices, the entry takers'offices, the county surveyors'offices, the
county registers' offices, tiie trustees' or county treasurers' offices,
the offices of the recorders to towns corporate, &c. The cor-
rupt intent with which the offences must be committed, has been
sufficiently explained in the consideration of the preceding sec-
tion. And there is such an exact similarity in the forms of the
warrants, recognizances and mittimusses, between this and the
preceding sections, that it is unnecessary to attach any forms to
this section. I will, however, present the reader with one form
346
CRIMINAL DIVISION.
of ahvarrant, recognizances for prosecutor and defendant, and a
mittimus, under this section.
Form of a zvarrant for avoiding a part of a record-book belonging
to the office of the register of West Tennessee,
"State of Tennessee,) ss,—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G II, an acting
justice of the peace for said county, that one C D, late of said
county, merchant, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year of our Lord one
thousand eight hundred and did then and there corruptly
cut out and avoid two pages of a record book, marked with the
letter G, belonging to the public register's office for West Ten-
nessee, which two pages contained the registration of a grant
for five hundred acres of land, from the State of Tennessee to the
said A B, with an intent to injure the said A B thereby, and by
means, and by reason thereof, the said A B is greatly injured:
These are therefore to command you to take the body of the said
C D, if to be found in your county, and him forthwith bring be-
fore me, or some other justice of the peace for said county, to
answer the premises, and be dealt with as the law directs. Giv-
en under my hand and seal, the date above written." [To be
signed, &c.J
Form of the prosecutor's recognizance.
"State of Tennessee,)
county,£ ss'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and per-
sonally appeared A B, of said county, before me, G II, an act-
ing justice of the peace for said county, and acknowledged him-
self to stand justly indebted to the State of Tennessee in the
sum of five hundred dollars, to be levied of his goods and chat-
tels, lands and tenements; but to be void if the said A B shall
make his personal appearance before the judge of our circuit
court, at a court to be holdcn for said county, at the court house
in the town of on the Monday of next, then
and there to prosecute and give evidence in the case of the State
STEALING BOOKS AND PAPERS.
247
of Tennessee against the said C D, for the crime of cutting out
and avoiding two pages of a record book, marked with the letter
G, belonging to the public register's office for West Tennessee,
with intent to injure the said A B, and not depart said court
without leave thereof first had and obtained. Acknowledged
before me, the date above written." [To be signed, &c.J
Form of the defendant's recognizance.
'•State of Tennessee.)
county,3 S
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and personal-
ly appeared CD, EF and I J, before me, G H, an acting jus-
tice of the peace for said county, and acknowledged themselves
to stand justly indebted to the State of Tennessee, that is to say,
the said (_' D in the sum of sixteen hundred dollars, and the said
K F and I J in the sum of eight hundred dollars each, to be lev-
ied of their respective goods and chattels, lands and tenements;
but to be void if the said C D shall make his personal appear-
ance before the judge of our circuit court, at a court to be
holden for said county, at the court house in the town of
on the Monday of next, then and there to an-
swer the State of Tennessee upon a charge of having corrupt-
ly cut out and avoided two pages of a record book, marked
with the letter G, belonging to the public register's office for
W est Tennessee, which said two pages contained the registration
of a grant for five hundred acres of land, from the said State to
the said A B, with intent to injure the said A B thereby, and
by means, and by reason thereof, the said A B is greatly injured;
and to abide by such sentence as shall be pronounced against
hirn, and not depart said court until discharged by due course
of law. Acknowledged before me, the date above written."-—
[To be signed, &c.]
Form of the mittimus.
"State of Tennessee,)
county,3 SS'
To the sheriff, or keeper of the common jail for the county afore-
said, Greeting:
Whereas, C D, late of said county, merchant, was -arrested
by II S, a lawful officer for said county, and brought before me,
us
CRIMINAL DIVISION.
GH, an acting justice of the peace for said county, this
day of in the year of our Lord one thousand eight
hundred and upon a state's warrant, procured on the oath
of one A B, of said county, wherein he has charged the said
C D with corruptly cutting out and avoiding two pages of a
record book, marked with the letter G, belonging to the public
office of the register of West Tennessee, which said two page,
contained the registration of a grant for five hundred acres of
land, from the said State to the said A B, with intent to injure
the said A B thereby, and by reason whereof, the said A B has
been greatly injured; and having examined the said defendant,
and the witnesses on behalf of the defendant as well as for the
• State, and recorded the same in writing, from which examina-
tion, so taken and recorded as aforesaid, no doubt remains with
me of the defendant's guilt; and he having failed to give the re-
cognizance and security required by law for his appearance at
the next circuit court to be holden for said county, to answer tie
said charge: These are therefore to command you to take and
receive into your custody, in said jail, the body of the said CD,
and him safely keep until discharged by due course of law.—
Given under my hand and seal, the date above written." [To
be signed, &c. by the justice.]
FALSE TOKENS.
"Whoever shall falsely and deceitfully obtain, or get into his
possession, any money, goods, chattels, notes, or bank bills, by
color or means of any false token, or counterfeit letter, made in
another's name, shall undergo confinement in said jail and pen-
itentiary house for a period not less than three nor more than
fifteen years." Penal Laws, act of 1829, c. 23, sec. 50,
This offence does not arise from a mere naked falsehood,
though never so falsely and deceitfully contrived, but by color
and means of some false token or counterfeit letter. The token
here spoken of, must be a false sign, appearing to an artificial
observer to he what it is uot. As where IT comes to tha house
of B, with A's bridle in his hand, winch bridle is known to B,
and tells B that A had sent him to borrow his horse to ride a
few miles—If B lets him have the horse, believing the state-
FALSE TOKENS.
249
ment of the man to be true, as he had A's bridle in his hand;
but the whole story is a fabrication, and H goes off with the
horse and disposes of him; the bridle is a false token, connected
with a false story, by reason of which he got the horse. Most
acts by which money, bank notes, goods or chattels are. obtain-
cd, where a false sign is connected with a false statement, or in
other words, where the false statement or lie is concealed by
some external sign covering it, may be said to be done by a false
token; as where B being a man of credit and fair standing, but
is not personally known to A, and C and D (a female) conspire
to cheat A out of a parcel of merchandize, and to effect which
C procures D to dress herself in men's clothing, externally ap-
pearing as a man, C introduces D as Mr. B to A, who states he
is desirous of dealing with him, whereupon the pretended Mr.
B says, though I am not personally known to you, yet I presume
my circumstances are known to you, as I live at a public
place; and A, believing the person to be Mr. B, of whom he had
been informed as to property, agrees to give him credit; where-
upon the counterfeit Mr. B. hands a card containing the address
of the true Mr. B, by means of which they take up a large
(juantity of goods. Here the false pretence and token unite.—
The falsehood is rendered probable by the external sign. But
little need be said upon the subject of obtainingthe things men-
tioned above, by virtue of a false or counterfeit letter, order,
or request in writing, as all such acts almost universally include
the crimes of forgery as well as false pretence.
Form of a warrant for obtaining properly by false tokens.
"Slate of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, yeoman, with force and arms, at, to wit, in the county
aforesaid, on the day of . in the year of our Lord
one thousand eight hundred and did then and there false-
ly and deceitfully obtain from the said A B, and get into his pos-
session, a certain bay horse, the property of the said A B, by col-
or and means of a false token and false pretence; that is to say,
G 2
250
CRIMINAL DIVISION.
he, the said C D, brought the bridle of E F, which he had ob-
-tained by some means, and which said bridle was then and
there known to the said A B to be the bridle of the said E F,
and he, the said C D, then and there falsely represented to the
said A B, that he had been sent by the said E F to borrow his
horse to ride a few miles, to wit, from the house of the said E F
to the town of and back again, that day; and the said A
B, knowing the bridle as aforesaid, and believing the false state-
ment of the said C D, did then and there let him have his horse
aforesaid, which he, the said C D, has fraudulently appropriated
to his own use: These are therefore to command you to take the
body of the said C D, if to be found in your county, and him
forthwith bring before me, or some other justice of the peace for
said county, to answer the premises, and be dealt with as the
law directs. Given under my hand and seal the date above
written." [To be signed, &c.]
Form of a recognizance for the defendant.
"State of Tennessee,)
county,5 SS'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and per-
sonally appeared C D, I J and L M, before me, G H, an acting
justice of the peace for said county, and acknowledged them-
selves to stand justly indebted to the State of Tennessee, that is
to say, the said C D in the sum of sixteen hundred dollars, and
tlie said I J and L M in the sum of eight hundred dollars each,
to be levied of their respective goods and chattels, lands and
tenements; but to be void if the said C D shall make his per-
sonal appearance before the judge of our circuit court, at a court
to be holden for said county, at the court house in the town of
on the Monday of next, then and there
to answer the State of Tennessee upon a charge of having
falsely and deceitfully gotten into his possession a certain bay
horse, the property of the said A B, and of and from the said
A B, by color and means of a false token; and abide by such
sentence as shall be pronounced against him, and not depart said
court until discharged by due course of law. Acknowledged
before me, the date above written." [To be signed, &c.]
FALSE TOKENS.
251
Form of a warrant for getting into his possession property by color
and means of a counterfeit letter.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return: ,
"Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an
acting justice of the peace for said county, that one C D, late of
said county, planter, with force and arms, at, to wit, inthecoun-
ty aforesaid, on the day of in the year of our Lord
one thousand eight hundred and did then and there
falsely and deceitfully obtain and get into his possession three
yards of superfine blue broad cloth, of and from the said A B,
by color and means of a certain counterfeit letter, purporting to
be a letter written by one E F, of said county, to the said A B,
therein requesting him, the said A B, to send the said E F three
yards of superfine broad cloth; and the said A B, believing the
said letter to be a true and genuine letter from the saidE F, did,
in pursuance of said request in said letter contained, deliver to the
said C D the said cloth, which he has converted to his own use
and service: These are therefore to command you to take the
body of the said C D, if to he found in your county, and him
forthwith bring before me, or some other justice of the peace for
said county, to answer the premises, and be dealt with as the law
lirects. Given under my hand and seal, the date above writ-
:en.'' [To be signed, &c.]
Form of a recognizance for the defendant.
'State of Tennessee,)
county,5 SS'
Be it remembered, that on the day of in the year
){ our Lord one thousand eight hundred and personally
ippeared C D, I J and L M, before me, G H, an acting justice
)f the peace for said county, and acknowledged themselves to
itand justly indebted to the State of Tennessee, that is to say,
he said C D in the sum of sixteen hundred dollars, and the said
[ J and L M in the sum of eight hundred dollars each, to be le-
ded of their respective goods and chattels, lands and tenements,
>ut to be void if the said C D shall make his personal appear-
ince before the judge of our circuit court, at a court to be hold-
252
CHIMIN At DIVISION.
en for said county, at the court house in the town of in
said county, on the Monday of next, then and there
to answer the State of Tennessee upon a charge of having false-
ly and"deceitfully, by color and means of a counterfeit letter,
purporting to have been written by one E F to the said A B, oh-
tained and gotten into his possession, three yards of superfine
blue broad cloth, and having converted the same to his own use
and service, and to abide by such sentence as shall be pronoun-
ced against him, and not depart said court until discharged by
due course of law. Acknowledged before me, the date above
written." [To be signed, &e.]
Prosecutor's recognizance.—Follow forms before given until you
come to the word "next," then say as follows: "then and there
to prosecute and give evidence in the case of the State against
C D, upon a charge of having falsely and deceitfully obtained
and gotten into his possession three yards of superfine blue broad
cloth, of and from him the said A B, by color and means of a
counterfeit letter, purporting to have been written by one E F,
to the said A B, therein requesting the said A B to send to him
the said E F, three yards of superfine blue broad cloth, and ha-
ving converted the same to his own use and service, and not de-
part said court without leave thereof first had and obtained.—
Acknowledged before me, the date above written." [To be sign-
ed by the justice.}
ASSAULT WITH AN INTENT TO KILL.
"Whoever shall feloniously, wilfully, and with malice "afore-
thought, assault any person, with an intent to commit murder in
the first degree, or shall administer or attempt to give any poi-
son or potion for that purpose, though death shall not ensue,
shall undergo confinement in said jail and penitentiary house
for a period not less than three nor more than twenty-one years."
Penal Laws, act of 1829, ch. 23, sec. 52.
This offence cannot be made out without having all the fea-
tures of murder in the first degree, that is to say, that the act
would - have been murder in the first degree, if the person had
died from the assault made. But as to the administration of, or
attempt to give any poison or potion, for the purpose of killing.
ASSAULT WITII INTENT TO KILL.
253
the malice is implied from the cool, reflecting design, in prepa-
ring and laying the poison.
I will refer the reader to the definition of murder in the first
degree, for the doctrine of malice; also to Blackstone and Haw-
kins, before referred to, where the doctrine is fully laid down.
An assault is, "an unlawful setting upon the person of anoth-
er," "an offer or attempt to beat another, or do him some bodily
harm:11 as where a man raises his clenched fist and offers or at-
tempts to strike another, but does not effect his object from some
cause, he being within such a distance that he could have reach-
cd the other; or where a man takes up a stone and throws and
misses, or where he offers to throw the stone at another, within
the distance he could conveniently have thrown; or where a man
shall present a loaded gun or pistol at another, within the dis-
tance they would carry, or should shoot off such gun or pistol at
another and miss him; or ail offer or attempt to strike another
with any other kind of weapon, would each be assaults.
A battery is the least touching of the person of another, in a
rude, revengeful manner. The law draws no distinction between
knocking a man down, and the smallest touch of his person un-
lawfully. In the consideration of the crime of an assault and
battery, or an assault with an intent to commit murder, the ma-
lice with which the act is done, is the pivot on which the question
must turn: for if the act should not be attended with such a ma-
licious intent as would make it murder in the first degree, if the
party assaulted had been killed, it cannot be such an assault with
intent to kill and murder, as is punishable by our statute.
Form of a warrant for an assault by shooting at another.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord
one thousand eight hundred and before me, G II, an act-
ing justice of the peace for said county, that one C D, late of
said county, laborer, with force and arms, to wit, a certain pistol
loaded with gunpowder and a leaden ball, at, to wit, in the
county aforesaid, on the day of in the year of our
Lord one thousand eight hundred and did then and there
make an assault with the pistol aforesaid, in and upon the body
254
CRIMINAL DIVISION.
of the said A B, in the peace of the State then and there
being, and did then and there shoot off said pistol, to, at, and
against, the said A B, with an intent him, the said A B, fe-
loniously, wilfully, and of his malice aforethought, to kill and
murder: These are therefore to command you to take the body of
the said C D, if to be found in your county, and him forthwith
bring before me, or some other justice of the peace for said coun-
ty, to answer the premises, and be dealt with as the law directs.
Given under my hand and seal, the date above written." [To
be signed, &c.]
Form of the recognizance of the prosecutor and witness.
"State of Tennessee,)
county,) ss'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared A B, of said county, before me, G H, an acting justice
of the peace for said county, and acknowledged himself to stand
justly indebted to the State of'Tennessee in the sum of five
hundred dollars, to be levied of his goods and chattels, lands and
tenements; but to be void if the said A B shall make his per-
sonal appearance before the judge of our circuit court, at a court
tQ be holden for said county, at the court house in the town of
on the Monday of next, then and there tn
prosecute and give evidence in the case of the State against
one C D, for the crime of an assault, with an intent to kill and
murder him the said A B, and not depart said court without
leave being first had and obtained. Acknowledged before mo,
the date above written. " [To be signed, &c.]
Form of the Recognizance for the Defendant.
"State of Tennessee,)
, '> ss.
county.)
Be it remembered, that on the day of in
the year of our Lord one thousand eight hundred and
personally appeared before me, G H, an acting justice of the
peace for said county, C D, I J and L M, and acknowledged
themselves to stand justly indebted to the state of Ten-
nessee, that is to say, the C D in the sum of two thousand del-
lars, and the said I J and L M in the sum of one thousand
dollars each, to be levied of their respective goods and chattel".
ASSAULT WITH INTENT TO RAVISH.
255
lands and tenements; but to be void if the said C D shall make
his personal appearance before the judge of our circuit court, at
a court to be holden for said county, at the court house in the
town of in said county, on the Monday of
next, then and there to answer the State of Tennessee upon a
charge of an assault, with an intent to kill and murder one A
B, of said county, and abide by such sentence as shall be pro-
nounced against him, and not depart said court until discharged
by due course of law. Acknowledged before me, the date above
written. » [To be signed, &c.]
ASSAULT WITII AN INTENT TO RAVISH.
"Any person who shall be guilty of committing an assault
and battery upon a female, with an intent forcibly and against
her will to have unlawful carnal knowledge of such female, ev-
try such person, his counsellors, aiders and abettors, shall, on con-
viction, be sentenced to undergo imprisonment, at hard labor, in
the penitentiary, for a period not less than two nor more than
ten years."" Penal Laws, act of 1829, ch. 23, sec. 53.
There must be a battery as well as an assault upon the body
of the female, to commence the offence; and the assault and
battery must be accompanied with the intent forcibly, and against
her will, to have unlawful carnal knowledge of her, to complete
the offence. It only differs from the crime of rape, in the fact,,
that the carnal knowledge is not had of such female. It must
be against the consent of said female, unless that consent is ob-
tained through fear of death, or great bodily harm, and then the
consent will make no difference.
Farm of a warrant for an assault and battery with an intent to
commit rape.
'•State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made on oath, by A B,^of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, laborer, with force and arms, at, to wit, in the coun-
ty aforesaid, on the day of in the year of our Lord one
256
CRIMINAL DIVISION.
thousand eight hundred and did then and there commit
an assault and battery upon the body of one E F, late of said
county, spinster, with an intent forcibly and against her will to
have unlawful carnal knowledge of the said E F: These are
therefore to command you to take the body of the said C D,
if to be found in your county, and him forthwith bring before me,
or some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given under
my hand and seal, the date above written." [To be signed of-
ficially by the justice.]
Form of the prosecutor's recognizance.
"State of Tennessee,)
county,\ ss'
Be it remembered, that on the ' day of in the year
of our Lord one thousand eight hundred and personally
appeared A B, before me, G H, an acting justice of the peace
for said county, and acknowledged himself to stand justly in-
debted to the State of Tennessee in the sum of five hundred
dollars, to be levied of his goods and chattels, lands and tcne-
ments; but to be void if the said A B shall make his personal
appearance before the judge of our circuit court, at a court to
be holden for said county, at the court house in the town of
on the Monday of next, then and
there to prosecute in the case of the State against one C D, up-
on a charge of an assault and battery upon the body of oneE
F, spinster, with an intent forcibly and against her will, to have
an unlawful carnal knowledge of her, and not depart said court
without leave thereof first had and obtained. Acknowledged
before me, the date above written. " [To be signed, &c.]
Defendants recognizance.
"State of Tennessee,)
county,5
Be it remembered, that on the . day of in the year
of our Lord one thousand eight Hundred and personally
appeared C I), I J and L M, before me, G H, an acting justice
of the peace for said county, and acknowledged themselves to
be justly indebted to the State of Tennessee, that is to say, the
said C D in the sum of one thousand dollars, and the said I
J and L M in the sum of one thousand dollars each, to be levi-
ASSAULT WITH INTENT TO ROB.
257
cd of their respective goods and chattels, lands and tenements;
but to be void if, the said C D shall make his personal appear-
ance before the judge of our circuit court, at a court to be hold-
cn for said county, at the court house in the town of in
said county, on the Monday of next, then and
there to answer the State of Tennessee upon a charge of having
committed an assault and -battery upon the body of one E F,
spinster, with an intent forcibly and against her will to have
carnal knowledge of her, the said E F, and abide by such sen-
tence as shall be pronounced against him, and not depart said
court until discharged by due course of law. Acknowledged
before me, the date above written." [To be signed, &c.J
Should a mittimus become necessary, it can be easily made,
by referring to the forms of those pointed out for other offences.
Note.—Not only the principal offender, but all persons who
shall counsel him to perpetrate the crime—all persons who
shall aid. help or assist, abet or support another, in an attempt
to commit the crime, if present, are to be considered as princi-
pals, and equally guilty with the principal offender; but if ab-
sent at the lime of the assault, they must be proceeded against
counsellors, aiders or abettors.
ASSAULT WITH INTENT TO ROB.
'k Whoever shall assault another, with an intent feloniously and
wilfully to commit robbery, shall undergo confinement in said
jail and penitentiary house for a period not less than two nor
more th; n six years." Penal Laws, act of 1829, ch. 23, sec. 54.
A threat to rob -another is not of itself an assault; it must be
an olfer or attempt to rob another,-with force, or violence, or
previously putting him in fear. It mattereth not how fierce the
a-sault may be, unless it be accompanied with an intent to rob.
The offence under-this section of the penal law becomes only
complete when an assault is made with an intent feloniously
11 hat is, wickedly and villanously, with an intent to gain by an-
other's loss.) and wilfully. The action of the will is always in-
\ol>ed iii the word '•feloniously," in cases of this nature.
II 2.
•258
CRIMINAL DIVISION.
Form of a warrant for an assault with an attempt to rob.
^State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting jus-
tice of the peace for said county, that.one C D, late of said coun-
ty, planter, with force and arms, on the day of
in the year of our Lord one thousand eight hundred and
at, to wit, in the county aforesaid, did then and there make an
assault upon the body of the said A B, with an intent felonious-
ly and wilfully to commit robbery upon the said A B: These are
therefore to command you to take the body of the said C D,
if to be found in }rour county, and him forthwith bring before
me, or some other justice of the peace for said county, to an-
swer the premises, and be dealt with as the law directs. Given
under my hand and seal, the date above written." [To be
signed, &c.]
Form of the Defendant''s Recognizance.
"State of Tennessee,)
county,) ss'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally ap-
peared, C D, I J and LM, before me, G H, an acting justice of
the peace for said county, and acknowledged themselves to stand
justly indebted to the state of Tennessee, that is to say, the said
C D in the sum of two thousand dollars, and the said I J and
L M in the sum of one thousand dollars each, to be levied of
their respective goods and chattels, lands and tenements; but
to be void if the said C D shall make his personal appearance
before the judge of our circuit court, at a court to be holden for
said county, at the court house in the town of in said
county, on the Monday of next, then and there
to answer the State of Tennessee upon a charge of having made
an assault on one A B, with an intent feloniously and wilfully
to commit robbery on the said A B, and abide such sentence as
shall be pronounced against him, and not depart said court until
discharged by due course of law. Acknowledged before me,
the date above written." [To be signed, &c.]
maiming.
259
Note.—The justice of the peace, in forming the recognizance
for the prosecutor and witnesses, will be careful to employ the
forms as heretofore prescribed, taking care to keep the true defi-
nition in view, as pointed out by the statute for each offence.
The description of the offence, as pointed out in each war-
rant, will enable the justice to make his recognizances as he may
desire them. It must be recollected that the substance can be
rarely arrived at, but through the medium of the forms of the
law. Form is the beauty, while truth is the glory of the law.
MAYHEM, WOUNDING, &c.
'•No person shall unlawfully and maliciously cut off the tongue,
or disable the tongue of another, by clipping, biting or wound-
ing.
"No person shall unlawfully and maliciously put out an eye,
slit, or cut or bite off the nose, ear or lip of another, or any part
of either of them, whereby any person shall be maimed or dis-
figured.
"No person shall unlawfully and maliciously cut off or disable
the hand, arm, leg -or foot of another, or any part of either of
tliem, whereby the person so injured shall lose the proper use of
any of those members.*
"No person shall unlawfully and maliciously shoot or stab an-
other.
"No person shall unlawfully and maliciously, by cutting or
otherwise, cut off or disable the organs of generation of another,
or any part thereof.
"Whoever shall commit any of the offences mentioned- in this
section, shall undergo confinement in said jail and penitentiary
house for a period not less than two nor more than ten years."
Penal Laws, act of 1829, ch. 23, sec. 55.
These offences must be committed unlawfully and maliciously.
A surgeon could not be guilty of the first offence here pointed out,
by-cutting out the tongue, or disabling it, in removing a cancer
*To bite off the thumb or finger, in the proper defence of one's self, is'
not punishable by imprisonment in the public jail and penitentiary house.
200
CTJIMINATj division.
or other ulcer; nor would an occulist be guilty of the seeotnl
clause, if, in attempting to remove a cataract, or inspissation (Jf
the crystalline humor, or pellicle of the sight, he should'put out
the eye; because the main ingredients of the offences would b,
wan-ing—unlawfulness and malice. The same may be said 01
the other clauses of this section. The offence contemplated la
the legislature, is only complete when accompanied witli tin
malice of the heart, and in the absence of the authority of the
law. Therefore, when any of these forbidden things are done
by accident, where no unlawful bodily hurt is designed, they
are not punishable under this section.
Form, of a warrant for unlawfully and maliciously cutting out ll
tongue of another.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made on oath, by A ,B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G II, an acting
justice of the peace for said county, that one C D, late of said
county, laborer, with force and arms, at, to wit, in the count)
aforesaid, on the day of in the year of our Lord
one thousand eight hundred and did then and there un-
lawfully and maliciously cut off the tongue of one E F, where-
by the said E F is greatly maimed and injured: These are there-
fore to command you to take the body of the said CD, if to
be found in your county, and him forthwith bring before me, or
some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given under
my hand and seal, the date above written." [To be signed,
&c. by the justice.]
Form of a warrant for unlawfully and maliciously putting out an cyt.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, laborer, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year of our
MAIMING
261
l/ord one thousand eight hundred and did then and there
unlawfully and maliciously pull and put out the right eye of him
the said A B: »Those are therefore to command you to take the
body of the said C D, if to be found in your county, and him
forthwith bring before me, or some other justice of the peace
for said county, to answer the premises, and be dealt with as the
law directs. Given under my hand and seal, the date above
w ritten."' [To be signed, &c.J
/•' nn of a n-arrant for unlawfully and maliciously biting off ths
nose of another.
"State of Tennessee.) ss.—To any lawful officer to execute and
county,} return:
Whereas, complaint has been made upon oath by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, laborer, with force and arms, at, to wit, in the coun-
tv aforesaid, on the day of in the year of our Lord
one thousand eight hundred and did then and there un-
lawfully bite off the nose of one E F, whereby the said E F
is irreatly maimed: These are therefore to command you to take
the body of the said C I), if to be found in your county, and
him forthwith hring before me, or some other justice of the
peace for said county, to answer the premises, and be dealt
with as the law directs. Given under my hand and seal, the
date above w ritten." [To be signed, &c.]"
Fa, •in of a zvarrant for unlawfully and maliciously cutting off the
hand, of another.
'•Stale of Tennessee,) ss.—To any lawful officer to execute and
county,} return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C I), late of said
county, laborer, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year of our Lord
one thousand eight hundred and did then and there un-
lawfully and maliciously cut off the left hand of one E F, of
said county, whereby the said E F is greatly maimed: These
262
CRIMINAL DIVISION.
are therefore to command you to take the body of the said C
D, if to be found in your county, and him forthwith bring be.
fore me, or some other justice of the peace for said county, to
answer the premises, and be dealt with as the law directs.—.
Given under my hand and seal, the date above written." [To
be signed, &c.]
Form of a warrant for castrating a man.
"State of Tennessee,) ss.—To any lawful officer to execute and
county ,5 return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, laborer, with force and arms, at, to wit, in the county
aforesaid, on the day of * in the year of our Lord
one thousand eight hundred and did then and there unlaw-
fully and maliciously cut off the organs of generation of one E
F, of said county, whereby the said E F is greatly maimed;
These are therefore to command you to take the body of the
said C D, if to be found in your county, and him forthwith bring
before me, or some other justice of the peace for said county, to
answer the premises, and be dealt with as the law directs.—
Given under my hand and seal, the date above written." [To
be signed, &,c.]
Form of a prosecutors recognizance to prosecute for cutting out a
man's tongue.
"State of Tennessee,)
county,\ ss'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and per-
son ally appeared A B, before me, G H, an acting justice of
the peace for said county, and acknowledged himself to stand
justly indebted to the State of Tennessee in the sum of five hun-
dred dollars, to be levied of his goods and chattels, lands and ten-
ements; but to be void if the said A B shall make his personal
appearance before the judge of our circuit court, at a court to
be holden for said county, at the court house in the town of
on the Monday of next, then and there to
prosecute one C D upon a charge of unlawfully and malicious-
MAJMING.
203
ly cutting out tlie tongue of one E F; and not depart said court
without leave thereof first had and obtained. Acknowledged
before me, the date above written. » [To be signed by the jus-
tice of the peace.]
Form of a mittimus for the crime of cutting off a mart's hand.
'•State of Tennessee,) ss.—To the sheriff, or keeper of the com-
county,5 monjail of said county, Greeting:
Whereas, C D, late of said county, laborer, was arrested by a
lawful warrant, obtained upon the oath of A B, before G H, an
acting justice of the peace for said county,and brought in custody
before me, K L, an acting justice of the peace for said county, this
day of in the year of our Lord one thousand eight hund-
red and wherein and whereby the said A B has charged
the said C D,-upon oath, of the crime of unlawfully and mali-
ciously cutting olf the right'hand of the said A B; and I having
carefully examined the said C*D, touching said charge, and the
witnesses, as well for the defendant as for the State, and record-
ed the whole of said examination in writing, and from which,
now before me, no doubt remains of the defendant's guilt in the
premises; and he having failed to give, the recognizance and
security required'by law for his appearance at the next circuit
court for said county: These are therefore to command you to
receive and take into your possession find custody, in said jail,
the. body of the said C D, and him safely "keep, until he shall be
discharged by due course of law. Given under my hand and
seal, the date above written." [To be signed, &c.]
The recognizance for the defendant's appearance, in each of
the foregoing offences, must contain the substance of the charge"
as presented in each warrant, for which he is-bound .to answer.
All warrants, recognizances and mittimuses, must contain the
charge or offence to be answered, prosecuted or defended, or
testimony to be given upon the trial of any case, with sufficient
certainty. It is impossible to give_ a warrant, recognizance or
mittimus for every case that may occur, without making this
work too voluminous to be placed in the hands of all the
people. ■ * '
261
criminal division.
DUELLING.
"If any person within this State shall fight a duel, or shrill
deliberately and maliciously challenge, by word or writing, am
other person to fight with sword, pistol, or other deadly weapon,
or shall deliberately and maliciously invite another, verbally or
by writing, to meet him in this State, or elsewhere, with a view
or intent to challenge or fight, or if any person so challenged,
shall deliberately and maliciously accept the said challenge, in
either case, such person so deliberately and maliciously giving
or receiving, or sending any such challenge, and being convict-
ed thereof, shall be sentenced to imprisonment at hard labor in
the penitentiary for a period not less than three nor more than
ten years.
"Provided, always, that no person who shall be verbally dial-
lenged, shall be a competent witness to prove the fact of such
verbal challenge, against any person who may be indicted liir
the same." Penal Laws, act of 1829, eh. 23, sec. 56.
But little difficulty can occur in the proper application of the
first member of this section: "If any person within this State
shall fight a duel." What is a duel? Answer: A combat he-
tween two persons with deadly weapons—a single fight with
deadly weapons. This fight must take place by some previous
understanding or arrangement; it must be something more than
an'accidcntal street rencounter. But if A should send word to B,
that he would be at a particular place, on a particular day, well
armed, where B might see him if he chose to do so, and Ilk
word should be delivered to B, and in pursuance thereof 11
should arm himself and repair to the place designated, and A
and B should meet, and a fight should ensue with deadly weap-
ons, no doubt can be entertained but this would be fighting a
duel under this section of the statute. More trouble will haw
to be encountered in the explication of the second clause of
this section: "or shall deliberately and maliciously challenge,
by word or writing, any person to fight with sword, pistol, or
any other deadly weapon." The words, "deliberately and nia-
liciously," must have their proper meaning; the challenge, there-
fore, must be given, (whether verbally or in writing) carefully
circumspectly,-advisedly, coolly, lefiectingly, with an evil and
DUELLING.
265
evil, and settled wicked intent, of doing bodily hurt to his ad-
versary. Therefore, any challenge which should be given or ac-
cepted in a flood of passion, where reason is dethroned, and
blind rage alone should govern the man, it would not fall within
the meaning and intention of the Legislature, as expressed in
this section. The same deliberation and malice is necessary in
inviting or accepting an invitation to meet at anyplace, to chal-
lenge and fight, as is requisite in the former clause. In settling
the questions of deliberation and malice, it will alwaysbe neces- •
sary to look to the circumstances accompanying the act, as the
lime, place and manner of it. Did the challenge take place, or
was it accepted, upon an old grudge or affront? Do all the cir-
cunislances show the act to be one of reflection and contrivance?
"Was care used to keep it a secret? Has there been any previ-
ous arrangement or management, or the like? If so, these are
signs of deliberation and reflection, and, consequently, evidence
of malice, until explained away by the defendant.
Form of a warrant for fighting a duel,
'■State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G II, an
acting justice of the peace for said county, that one C D, and
one E F, late of said county, laborer?, with force and arms, at,
to wit, in the county aforesaid, on the day of in
the year of our Lord one thousand eight hundred and
did then and there meet each other, armed with pistols, loaded
with gunpowder and #leaden balls, and did then and there fight
each other in single combat, with the pistols aforesaid, loaded as
aforesaid, by shooting at and against each other: These are there-
fore to command you to take the bodies of the said C D and E F,
if to be found in your county, and them forthwith bring before me,
or some other justice of the peace for said county, to answer
the premises, and be dealt with as the law directs. Given un-
der my hand and seal, the date above written." [To be signed,
(See. officially by the justice.}
12 ,
266
CRIMINAL DIVISION.
Form of a warrant for deliberately and maliciously challenging cut-
other to fight a duel.
"State of Tennessee,) ss.>—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G II,
an acting justice of the peace for said county, that one C D,
late of said county, merchant, with force and arms, at, to wit,
in the county aforesaid, on the day of in the year
of our Lord one thousand eight hundred and did then and
there deliberately and maliciously, by his certain writing of the
date of the day of and year lastaforesaid, challenge
one E F, of said county, to meet him, the said C D, at such a
time and place, and with such deadly weapons as are usual
amongst men of honor in mortal strife, as he, the said E F, might
choose, and fight him, the said C D, in single combat: These
are therefore to command you to take the body of the said C D,
if to be found in your county, and him forthwith bring before
me, or some other justice of the peace for said county, to an-
swer the premises, and be dealt with as the law directs. Giv-
en under my hand and seal, the date above written." [To be
signed, &c.]
Form of a warrant for inviting another to a certain place without
the State, that, at that place, he might challenge him to fght a
duel.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,3 return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, laborer, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year of our Lord
one thousand eight hundred and did then and there de-
liberately and maliciously invite one E F to meet him, the said
C D, at in the State of on the day of
then next ensuing, with the view and intent then and there to
challenge him, the said E F, to fight a duel with him the said CD:
DUEIjTJINO.
267
These are therefore to command you to take the body of the
said C D, if to be found in your county, and him forthwith bring
before me, or some other justice of the peace for said county, to
answer the premises, and be dealt with as the law directs.—
Given under my hand and seal, the date above written." [To
be signed, &c. by the justice.]
Form of the prosecutor's recognizance.
"State of Tennessee,)
county,5 SS'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally ap-
peared A B, before me, G H, an acting justice of the peace for
said county, and acknowledged himself to stand justly indebted
to the State of Tennessee in the sum 4of five hundred dollars,
to be levied of his goods and chattels, lands and tenements;
but to be void if the said A B shall make his personal appearance
before the judge of our circuit court, at a court to be holden for
said county, at the court house in the town of in said
county, on the Monday of next, then and there to
prosecute C D and E F for fighting a duel, and not depart said
court without leave thereof first had and obtained. Acknow-
ledged before me, the date above written." [To be signed by
the justice.]
Form of a defendant's recognizance for fghting a duel.
"State of Tennessee,)
county,\ ss*
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared CD, I J and L M, before me, G H, an acting justice
of the peace for said county, and acknowledged themselves to
be indebted to the State of Tennessee, that is to say, the said
C D in the sum of sixteen hundred dollars, and the said I J
and L M in the sum of eight hundred dollars each, to be levied of
their respective goods and chattels, lands and tenements; but to
be void if the said C D shall make his personal appearance be-
fore the judge of our circuit court, at a court to be holden for
said county, at the court house in the town of in said coun-
ty, on the Monday of next, then and there to an-
swer the State of Tennessee upon a charge of fighting a duel
208
CRIMINAL DIVISION.
with one E F, and abide by such sentence as shall be pronounced
against him, and not depart said court until discharged by due
course of law. Acknowledged before me, the date above writ-
ten. G II."
Form of a recognizance for the defendant, upon a charge of giving
a challenge to fight a duel.
"State of Tennessee,)
county,\ SS'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and person-
ally appeared before me, G II, an acting justice of the peace
for said county, C I), I J and L M, and acknowledged them-
selves to stand justly indebted to the State of Tennessee, that is
to say, the said C D in the sum of sixteen hundred dollars, and
the said I J and L M in the sum of eight hundred dollars
each, to be levied of their respective goods and chattels, lands
and tenements;but to be void if the said C D shall make his
personal appearance before the judge of our circuit court, at
a court to be holden for said county, at the court house in the
town of in said county, on the Monday of
next, then and there to answer the State of Tennessee upon a
charge of having given deliberately and maliciously a challenge
in writing to one E F, challenging him, the said E F, to fight
a duel with deadly weapons, with him the said C D; and abide
by such sentence as shall be pronounced against him in'this be-
half, and not depart said court until discharged by due course of
law. Acknowledged before me, the date above written." [To
be signed by the justice.]
Form of a recognizance for a defendant, for inviting another to a
particular place to he challenged.
"State of Tennessee,)
county,5 SS'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D, I J and L M, before me, G II, an acting justice
of the peace for said county, and acknowledged themselves
to stand justly indebted to the State of Tennessee, that is to
say, the said C D in the sum of sixteen hundred dollars, and the
said I J and L M in the sum of eight hundred dollars each, to
DUELLING BEARING A CHALLENGE.
269
be levied of their respective goods and chattels, lands and ten-
cments; but to be void if the said C D shall make his personal
appearance before the judge of our circuit court, at a court to be
holden for said county, at the court house in the town of
in said county, on the Monday of next, then
and there to answer the State of Tennessee upon a charge of
having deliberately and maliciously invited one E F to
in the State of with the view and intent of challenging
him, the said E F, to fight a duel with deadly weapons, and
abide by such sentence as shall be pronounced in the said cause;
and not depart said court until discharged by due course of
law. Acknowledged before me, the date above written." [To
be signed, &c.]
Form of the prosecutor's recognizance.
KState of Tennessee,)
county,5 SS'
Be it remembered, that on the day of in the
year of our Lord ( ne thousand eight hundred and per-
sonally appeared A B, before me, G II, an acting justice of the
peace fbr said county, and acknowledged himself to be justly
indebted to the State of Tennessee in the sum of five hundred
dollars, to be levied of his proper goods and chattels, lands and
tenements; but to be void if the said A B shall appear before
the judge of our circuit court, at a court to be holden for said
county, at the court house in the town of in said county,
on the Monday of next, then and there to
prosecute C D upon a charge of having deliberately and mali-
ciously challenged in writing E F, to fight a duel with deadly
weapons, with him the said C D, and not depart said court
without leave thereof first had and obtained. Acknowledged
before me, the date above written." [To be signed,^&c.]
BEARING A CHALLENGE.
"If any person shall wilfully, knowingly, deliberately and ma-
liciously carry and deliver any written challenge, or verbally,
deliberately and maliciously deliver any message purporting to be
a challenge, or shall deliberately and maliciously consent to be
the second in any such duel, every such person so offending, and
270
CRIMINAL DIVISION.
being convicted thereof, shall he sentenced to imprisonment at
hard labor, in the penitentiary, for a term not less than three nor
more than ten years." Penal Laws, act of 1829, ch. 23, sec. 57.
The challenge, whether verbal or written, must be carried and
delivered willingly—with his own consent; knowingly—not by
mistake, but with a knowledge of the purport and meaning of
the message; deliberately—with an evil intent; and settled wick-
ed purpose to do, or have some bodily hurt done to the party to
whom he carries and delivers such challenge.
The second class of cases provided for in this section, is where
a person shall "deliberately and maliciously consent to be the
second in any such intended duel." I need not again define the
words deliberately and maliciously. The offence is complete
when a person shall deliberately and maliciously consent to be-
come such second.
Form of a warrant for the crime of carrying and delivering a zml-
ten challenge to fighb- a duel.
"State of Tennessee,) ss.—To any lawful officer to execute ami
county,5 return:
Whereas, complaint has been made upon oath by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G XT, an acting
justice of the peace for said county, that one C D, late of said
county, attorney at law, with force and arms, at to wit, in
the county aforesaid, on the day of in the year of our
Lord one thousand eight hundred and did then and there
willingly, knowingly, deliberately and maliciously carry, bear
and deliver a written challenge, from one E F, of said county, to
the said A B, to meet him, the said E F, in single combat, at
such time and place as he, the said A B should appoint, and
with such deadly weapons as are usual amongst men of honor:
These are therefore to command you to take the body of
the said C I), if fo be found in your county, and him forthwith
bring before me, or some other justice of the peace for said
county, to answer the premises, and be dealt with as the law di-
rects. Given under my hand and seal, the date above writ-
ten." [To be officially signed and sealed by the justice.]
BEARING A CHALLENGE.
271
F<>nn of a warrant for consenting to be a second in a duel.
"Slate of Tennessee,) ss.—To any lawful officer to execute and
county, ) return:
Whereas, complaint has been made upon oath by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
jiir-tice of the peace for said county, that one C D, late of said
county, tailor, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year of our Lord
one thousand eight hundred and did then and there de-
liberately and maliciously consent to become the second of one
E F, in a certain duel about to be fought between the said E
F and one I J, with deadly weapons: These are therefore to
command you, to take the body of the said C D, if to be found
in your county, and him forthwith bring before me, or some oth-
er justice of the peace for said county, to answer the premises,
and he dealt with as the law directs. Given under my hand
and seal, the date above written." [To be signed, &c.]
Form of the prosecutor's recognizance.
"■State of Tennessee,)
county,) ss'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and per-
sonally appeared A B, of said county, before me, G H, an act-
ing justice of the peace for said county, and acknowledged him-
self to stand justly indebted to the State of Tennessee in the
sum of five hundred dollars, to be levied of his goods and chat-
tels, lands and tenements; but to be void if the said A B shall
make his personal appearance before the judge of our circuit
court, at a court to be holden for said county, at the courthouse
in the town of on the Monday of next, then
and there to prosecute C D upon a charge of having willingly,
knowingly, deliberately and maliciously carried to and delivered
a written challenge, from one E F to the said A B, to fight a
duel with him, the said E F, with deadly weapons, and not de-
part said court without leave thereof first had and obtained.—
Acknowledged before me, the date above written." [To be
signed, &c.]
272
CRIMINAL DIVISION.
Form of the defendants recognizance.
"State of Tennessee,)
countj,5 S*'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and personal-
ly appeared CD, I J and L M, before me, G H, an acting jus.
tice of the peace for said county, and acknowledged themselves
to stand justly indebted to the State of Tennessee, that is to say,
the said C D in the sum of two thousand dollars, and the said
I J and L M in the sum of one thousand dollars each, to be lev-
ied of their respective goods and chattels, lands and tenements;
but to be void if the said C D shall make his personal appear-
ance before the judge of our circuit court, at a court to he
holden for said county, at the court house in the town of
on the Monday of next, then and there to an-
swer the State of Tennessee upon a charge of having willingly,
knowingly, deliberately and maliciously carried and delivered a
written challenge from one E F to one A B, to fight a duel with
deadly weapons, with him the said E F, and abide by such
sentence as shall be pronounced in the case, and not depart
said court until discharged by due course of law. Acknowledged
before me, the date above written." [To be signed, &c.]
Form of the defendants recognizance,
"State of Tennessee,)
county,y ss'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and person-
ly appeared C D,I J and L M, before me, G H, an acting justice
of the peace for said county, and acknowledged themselves to
stand justly indebted to the State of Tennessee, that is to say,
the said C D in the sum of two thousand dollars, and the said
I J and L M in the sum of one thousand.dollars each, to be le-
vied of their respective goods and chattels, lands and tenc-
ments; but to be void if the said C D shall make his personal
appearance before the judge of our circuit court, at a court
to be holden for said county, at the court house in the town of
on the Monday of next, then and there to
answer the State of Tennessee upon a charge of having delibe-
rately and maliciously consented to be the second of one E F,
POSTING FOR COWARDICE.
273
in a duel about to be fought with deadly weapons, between the
said E F and one N O; and abide by such sentence as shall be
pronounced in the case, and not depart said court until dischar-
ged by due course of law. Acknowledged before me, the date
above written. G, H»"
POSTING FOR COWARDICE.
"If any person or persons shall, in any newspaper, or hand-bill,
written or printed, publish or proclaim any other person, or per-
sons, as a coward, or cowards, or use any other opprobrious lan-
guage imputingcowardice,in writing or printing, for not accepting
a challenge, or fighting a duel, such person, or persons, so offend-
ing, shall, on conviction, be sentenced to imprisonment at hard
labor in the penitentiary, for the term of two years." Penal
Laws, act of 1829, ch. 23, sec. 58.
The publishing or proclaiming in print, or in writing, that
another is a coward, or using words imputing cowardice, must
be done in consequence of such person refusing to accept a chal-
lenge, or to fight a duel, to bring the offence within the ;pi*ohibi-
tion of this section.
Form of a warrant for posting a man as a coward.
"State of Tennessee,) ss.—-To any lawful officer to execute and
county,^ return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, carpenter, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year of our Lord one
thousand eight hundred and did then and there, by a cer-
tain printed hand-bill, publish and proclaim, that a certain E F
is and was a coward, because the said E F had, before that time,
refused to accept a challenge to fight a duel with him the said C D:
These are therefore to command you to take the body of the said
C D, if to be found in your county, and him forthwith bring be-
fore me, or some other justice of the peace for said county, to
answer the premises, and be dealt with as the law directs. Giv-
K 2
274
criminal division.
en under my hand and seal, the date above written." [To be
signed, &c.]
Note.—When the posting or publishing of a person is in wri-
ting, in the place of the word "printed," in the warrant, say
"written;" and if the publication should be in a newspaper,in
place of the word "hand-bill," say, "by a certain publication in-
serted in a newspaper entitled printed at f
The publishing it in a public gazette, is a publication of the
offence at every point to which the newspapers are regularly
sent from that press, and the party thus charging another with
cowardice, is indictable in any county to which the paper may
be sent.
Form of the defendants recognizance.
"State of Tennessee,)
county,5 SS'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D, E F and I J, before me, G H, an acting justice
of the peace for said county, and acknowledged themselves to
stand justly indebted to the State of Tennessee, that is to say,
the said C D in the sum of twelve hundred dollars, and the said
E F and I J in the sum of six hundred dollars each, to be lev-
ied of their respective goods and chattels, lands and tenements;
but to be void if the said C D shall make his personal appear-
ance before the judge of our circuit court, at a court to be hold-
en for said county, at the court house in the town of in
said county, on the Monday of next, then and there
to answer the State of Tennessee upon a charge of having pub-
lished and proclaimed, by means of certain printed hand-bills,
that one E F was and had been a coward, because he refused
to accept a challenge of him the said C D, to fight a duel with
him the said C D; and abide by such sentence as shall be pro-
nounced in said case, and not depart said court until discharged
by due course of law. Acknowledged before me, the date above
written." [To be signed by the justice.]
Note.—The form of the prosecutor's recognizance, and that
of witnesses, will, in substance, follow the form immediately
preceding.
POSTING TOR COWARDICE.
275
"The publisher or printer of any newspaper, hand -bill, or oth-
er publication, shall, in all prosecutions under the last section,
be summoned as a witness, and be accepted by the court as a
good witness against the writer or writers of such publication or
hand-bill; and if the said printer or printers, publisher or pub-
lishers, when summoned before the court, shall refuse to give up
the writer's name, the court shall consider him or them as the
author or authors thereof, and proceed to punish him or them ac-
cordingly." Penal Laws, act of 1829, ch. 23, sec. 59.
There is nothing in this section deserving particular attention-
but one circumstance, and that is, where the printer or publisher,
when summoned as a witness before the court of enquiry or cir-
cuit court, shall refuse to give up the name of the author of any
publication charging or imputing cowardice to another for re-
fusing to accept a challenge, or to fight a duel. The legislature
has said in this section, that the refusal aforesaid shall be con-
sidered equivalent to an open confession that he or they are the
authors of the publication, and, consequently, no further evi-
dencc of their guilt is necessary. If such refusal should take
place before the justice of the peace, when sitting as a court of
enquiry, it is made his duty to order such person into custody
immediately, and require of him recognizance, with good and
sufficient security, for his appearance at the next circuit court,
to answer the charge of the authorship of such publication, or
commit him to jail to await his trial. But if the refusal should
take place in the circuit court, the court is to proceed to pass
sentence on such publisher or printer, as though he had been
found guilty of the fact by the verdict of a jury of his peers.
The following is the form of the judgment of the court of en-
quiry, upon a printer refusing to give up the author's name when
be has been summoned as a witness, in a case of the State against
a supposed author.
"State of Tennessee,)
county,^ SS'
Whereas, one E F was lawfully ai rested by a State's war-
rant, and brought, in custody, by N O, a constable for said
county, before me, G. H, an acting justice of the peace for said
county, charged by one A B of being the author of a certain
publication which made its appearance in a newspaper entitled
276
CRIMINAL DIVISION.
printed at by one C D, printer and publisher
thereof, bearing date the day of in the year of
our Lord one thousand eight hundred and wherein and
whereby the said A B is charged with being a coward, because
he had before that time refused to accept a challenge to fight a
duel, from one E F; and whereas it was thought expedient to
summon said C I) as a witness on behalf of the State, to testify
and the truth to speak, as to whom the author of said publica-
tion really was, and he appearing in obedience to said summons,
and being sworn as the law directs, peremptorily refuses to dis-
close the name of the author: It is therefore considered by me,
that the said C D be taken and held to be the author of said
publication, and that he find good and sufficient security, and with
them enter into recognizance to appear and answer the same
at the next circuit court, to be holden for said county, &c. and
on failure thereof, to be committed to jail to await his trial," &c.
The form of the recognizance^ or mittimus to jail, will, in ev-
ery respect, be the same as against any other offender publishing
a person as a coward. All criminal judgments should be under
the hand and seal of the justice of the peace, as well as war-
rants.
RESCUING A FELON.
"Whoever shall, by force or menaces of bodily harm, or bj
other unlawful means, set any one at liberty who is in custody,
after lawful arrest, either before or after conviction, for any of-
fence mentioned in this act, knowing or being informed that the
offender is lawfully arrested, as aforesaid, shall undergo confine-
ment in said jail and penitentiary house for a period not less
than two nor more than ten years." Penal Laws, act of 1829,
ch. 23, sec. 60.
The offence pointed out in this section, was, at the common
law, called a rescous, (2 Haw. P. C. 209,) and is thus defined:
"A stronger forcibly freeing another from arrest."
An indictment, warrant or mittimus must specially set forth the
name and nature of the crime for which the party rescued was
originally arrested. 2 Haw. P. C. 209. Dyer's Rep. 164. The
custody here spoken of, is the custody of the law, whether in the
RESCUING A FELON.
277
hands of an officer, in the common jail, or in the public jail and
penitentiary house of the State.
Form of a warrant for a Rescous.
'•State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one thou-
sand eight hundred and before me, G H, an acting justice of
the peace for said county, that one C D, late of said county,
planter, with force and arms,at, to wit,in the county aforesaid, on
the day of in the year of our Lord one thousand
eight hundred and did then and there rescue one E F
out of the hands of one S B, then and there lawfully arrested,
and in the custody of said S B, he then and there being a law-
ful officer, for the crime of horse-stealing, and that fact well
known to the said C D, and so known before the time of such res-
cue: These are therefore to command you to take the body of the
said C D, if to be found in your county, and him forthwith bring
before me, or some other justice of the peace for said county, to
answer the premises, and be dealt with as the law directs. Giv-
en under my hand and seal, the date above written." [To be
signed, Ac.]
This is in the usual form; but I think it too general. I would
recommend the following form as being most in accordance with
the requirements of the law.
'•State of Tennessee.) ss.—To any lawful oflicer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G II, an act-
ing justice of the peace for said county, that one C D, late
of said county, laborer, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year of
our Lord one thousand eight hundred and did then and
there forcibly rescue one E F, who had before that time been
lawfully arrested upon a regularly issued State's warrant, by A
B, a lawful officer for said county, upon a charge of horse steal-
ing, in th i feloniously stealing, taking and carrying away a cer-
tain sorrel gelding of the value of one hundred dollars, the pro-
278
CRIMINAL DIVISION.
perty of one I J, and out of his hands and possession, from and
out of the custody of the said A B, he, the said C D, then and
there well knowing that the said E F had been arrested, and
was then and there lawfully in the custody of the said A B,up-
on and for the charge of horse-stealing, as aforesaid: These are
therefore to command you to take the body of the said C D,
if to be found in your county, and him forthwith bring before me,
or some other justice of the peace for said county, to answer
the premises, and be dealt with as the law directs. Given un-
der my hand and seal, the date above written." [To be sign-
ed, &c.]
Form of the defendant's recognizance.
"State of Tennessee,)
county,$
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D, I J and L M, before me, G II, an acting justice
of the peace for said county, and acknowledged themselves to
stand justly indebted to the State of Tennessee, that is to say,
the said C D in the sum of sixteen hundred dollars, and the said
I J and L M in the sum of eight hundred dollars each, to be
levied of their respective goods and chattels, lands and tene-
ments; but to be void if the said C D shall make his personal
appearance before the judge of our circuit court, at a court to
be holden for said county, at the court house in the town of
on the Monday of next, then and there to answer
the State of Tennessee upon a charge of having forcibly res-
cued one E F out of the hands and custody of one A B, a
lawful officer for said county, and who had before that time law-
fully arrested the said E F, upon a charge of having feloniously
stolen, taken and carried awayr a certain sorrel gelding, cf the
value of one hundred dollars, the property of one P Q, then
and there well knowing the said E F to have been lawfully ar-
rested, and in custody, upon said charge; and to abide such sen-
tence as shall be pronounced in the premises, and not depart
said court until discharged by due course of law. Acknowled-
ged before me, the date above written." [To be signed, &c»]
VOLUNTARY ESCAPE.
279
VOLUNTARY ESCAPE.
"If any cfficer, or other person having another in custody, up-
on a lawful arrest, or conviction for any of the offences mention-
ed in this act, shall voluntarily, corruptly, and of purpose, let
such person, so arrested or convicted, escape, he shall undergo
confinement in said jail and penitentiary house for a period not
less than two nor more than ten years." Penal Laws, act of 1829,
ch. 23, sec. 61.
The first thing to be considered in the examination of this sec-
tion, is, that the arrest must be lawful. If the warrant should
be wrong, as by charging the defendant with one of two or three
offences, in the disjunctive, or with no offence known to the crim-
inal code, or where the warrant is formal enough, except that the
justice who issued it failed to make it under his hand and seal,
the officer permitting his prisoner to escape, after being arrest-
ed upon such warrant, would be guilty of no offence under this
section of the statute.
The escape must not only have taken place through negli-
gence, or inadvertence, but voluntarily on the part of the officer,
or person having such prisoner in custody; that is, to let the pris-
oner go about his business, by the will and consent of the officer
or person in whose custody he is: and the act must be done cor-
ruptly and of purpose. When the prisoner is permitted to go
off of purpose by his keeper, the law will presume such purpose
to be brought about viciously, impurely, and with criminal in-
tent.
Form of a warrant for voluntary escape.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, laborer, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year of our Lord
one thousand eight hundred and he, the said C D, then
and there being a lawful officer for said county, and as such of-
ficer, before that time had lawfully arrested one* E F, for and
CRIMINAL DIVISION.
upon a charge of having, with force and arms, feloniously, wil-
fully, and of his malice aforethought, assaulted one I J, in the
peace of the State then and there being, with the intent him,
the said I J, to kill and murder, and he the said E F, being so
lawfully arrested, and then and there being in custody upon the
charge aforesaid, he, the said C D, did then and there volunta-
rily, corruptly and of purpose let said E F escape out of his cus-
tody, and go at large, with the intent to defeat the ends of
justice: These are therefore to command you to take the bo-
dy of the said C D, if to be found in your county, and him
forthwith bring before me, or some other justice of the peace for
said county, to answer the premises, and be dealt with as the
law directs. Given under my hand and seal the date above
written." [To be signed, &c.]
Form of a recognizance for the defendant.
"State of Tennessee,)
county, j ss'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and per-
sonally appeared C D, I J and L M, before me, G H, an acting
justice of the peace for said county, and acknowledged them-
selves to stand justly indebted to the State of Tennessee, that is
to say, the said C D in' the sum of two thousand dollars, and
the said I J and L M in the sum of one thousand dollars each,
to be levied of their respective goods and chattels, lands and
tenements; but to be void if the said C D shall make his per-
sonal appearance before the judge of our circuit court, at a court
to be holden for said county, at the court house in the town of
on the Monday of next, then and there
to answer the State of Tennessee upon a charge of having
voluntarily, corruptly and of purpose permitted one E F to es-
cape out of his custody, who had been then and there arrested
and kept in custody upon a charge of having feloniously, wilful-
ly and of his malice aforethought assaulted one I J, in the peace
of the State then and there being, with an intent him, the said
I J, to kill and murder; and abide by such sentence as shall be
pronounced against him, and not depart said court until dischar-
ged by due course of law. Acknowledged before me, the date
above written." [To be signed, &c.]
ACCESSARIES.
281
ACCESSARIES.
"All persons being present, aiding and abetting, or ready
and consenting to aid and abet, in any of the foregoing of-
fences, shall be deemed principal offenders therein, and indict-
ed and punished as such." Penal Laws, act of 1829, ch. 23,
sec. G2.
"All accessaries before the fact, to any of the foregoing, where
the offence admits of accessaries before the fact, shall be punish-
ed as their principals are punished." Ibid, sec. 63.
"All accessaries after the factshall be p mished as their princi-
cipals, except accessaries after the fact to the crime of murder
in the first degree, who shall be punished as persons convicted
of murder in the second degree are punished.
"Provided, that persons standing to the accused in the relation
of parent, child, brother, sister, husband, and wife, shall not be
deemed accessaries after the fact, unless for resisting officers and
others, by force or menaces, in the legal discharge of their du-
ty." Ibid, sec. 64.
Properly speaking, there can be no accessaries who are pres-
ent at the commission of the crime. All such are principals.—
As in murder, A, B and C are present, A is charged with hav-
ing given the mortal wound, and, upon the trial, it turned out in
evidence that C had given the mortal blow; it was held by all
the judges of England, that it made no difference, as all were
equally guilty. .
Accessaries before the fact, are those who give directions and
counsel to do and commit the crime; as if a man advise and
counsel a woman to destroy her child, when it shall be born, and
she does so upon the birth of her child. Here, the man who
gave such counsel and advice, is an accessary before the fact.—
An accessary after the fact, is one who knowingly feeds, lodges,
secretes, aids, or comforts a felon.
Form of a warrant against an accessary before the fact to the crime
of a woman's killing her infant child.
"State of Tennessee,)' ss.—To any lawful officer to execute and
county,} return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
L 2
282
criminal division.
thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, laborer, not having the fear of God before his eyes,
but being moved and seduced by the instigation of the Devil,
with force and arms, at, to wit, in the county aforesaid, on the
day of in the year of our Lord one thousand eight
hundred and did then and there feloniously, wilfully, and
of his malice aforethought, counsel, advise and direct one E F,
late of said county, spinster, who was then and there pregnant
of a bastard child, of and on her body begotten, that when her
said bastard should be born, to put it to death immediately after
its birth; and the said E F afterwards, to wit, on the day
of in the year of our Lord one thousand eight hundred
and at, to wit, in the county aforesaid, was then and there
delivered of a female f>astard child, born alive, and which said
female bastard child, so born alive, the said E F, with force and
arms, to wit, on the day and year last aforesaid, and in pursu-
ance of. the said counsel, advice and direction of the said C D,
so given as aforesaid, feloniously, wilfully, and of her malice
aforethought, did then and there kill and murder said child, by
means and by reason whereof the said C D became an accessary
to the crime of murder in the first degree, before the fact: These
are therefore to command you to take the body of the said C D,
if to be found in your county, and him forthwith bring before me,
or some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given under
my hand and seal, the date above written." [To be signed of-
ficially by the justice.]
Note.—All accessaries of good character are bailable until
the principal is convicted; then they must be committed, as their
principals would be committed.
Form of a recognizance for the defendant.
"State of Tennessee,)
county,5 SS'
Be it remembered, that on the * day of in the year
of our Lord one thousand eight hundred and personally
appeared C D, I J and L M, before me, G H, an acting justice
of the peace for said county, and acknowledged themselves .to
stand justly indebted to the State of Tennessee, tha£.ife to say,
UNLAWFUL GAMING'.
283
the said C D in the sum of two thousand dollars, and the said
I J and L M in the sum of one thousand dollars each, to be le-
vied of their respective goods and chattels, lands and tenements;
but to be void if the said C D shall make his personal appear-
ance before the judge of our circuit court, at a court to be hold-
en for said county, at the court house in the town of in
said county, on the Monday of next, then and there
to answer the State of Tennessee upon a charge of being acces-
sary before the fact, to one E F, late of said county, spinster, in
the feloniously, wilfully, and of her malice aforethought, killing
and murdering her female bastard child, immediately upon its
birth, at, to wit, in the county aforesaid; and abide such sen-
tcnce as shall be pronounced in the premises, and not depart said
court until discharged by due course of law. Acknowledged
before me, the date above written. " [To be signed, &c.]
UNLAWFUL GAMING.
"If any person or persons shall be guilty of dealing at the
game commonly called faro, or exhibiting the game commonly
called thimble, or exhibiting with cards the grand-mother's trick,
for money, or other valuable thing, such person or persons, so
offending, on conviction thereof, shall undergo confinement in
said jail and penitentiary house for a period not less than two
nor more than five years.
"Provided, that persons playing with any such faro dealer, or
person exhibiting the game commonly called thimble, or the
grand-mother's trick, may be proceeded against by indictment
or presentment, and, on conviction, shall be subject to the same
punishment as persons guilty of other gaming are, by the laws
now in force, subject to." Penal Laws, act of 1829, ch. 23, sec. 65.
Faro is a game that is played by exhibiting a parcel of cards,
spread out on a table, as the ace, deuce, three, four, five, six,
6even, eight, nine, ten, jack, queen and king, with the face
of the cards upward. A person wishing to bet, places his money,
or its representative, either on one card, or between two cards,
or at the back of one so as to bet on three cards, or by setting
his bets from one corner to another, diagonally across between
the cards. The dealer most usually has a neat looking silver box,
2.84
CRIMINAL DIVISION.
"With springs in the inside, to raise up his cards to a certain ap.
erture in the side of the box, near the top thereof, through
which he slides his cards, one at a time. In this box he puts a
pack, or less quantity of cards, as shall he understood, and as i,
agreed upon between him and his betters. If a less number
than a full pack is used in the box, cards corresponding there-
with are taken from the number on the table; and the dealer
- of the cards throws one card to the right and another to the
left, notifying his silly betters which hand is to win. - Since thi-
mode of black leg swindling has been rendered highly penal,
some of the black-leg fraternity have concluded they were wi-e
enough to cheat the law, and therefore they drop a few card-
from the pack, and change its name, and call it forty-eight inste.nl
of faro. What stupidity!! But it may be taken as a universal
rule, that wickedness and weakness are inseparable companion-;
that fault and folly go hand in hand. In fine, that every rogue
is a fool. These tellowrs think that the courts of justice mu-t
be dependant upon them for a description of this crime, and
then they will make all th.ngs safe by their swearing. It may
be, that some of our judges have, their whole life through, livid
so much shut out from the world as never to have known any
thing of faro, or any other game of hazard or address. Their
lot, if there are any such, has been quite different from mine;
though I never could be induced to bet any thing oh thimble,
or the grand-mother's trick, because I knew I must of necessity
lose, and partly from the same reason, I never lost much at fare.
But I have been literally skinned at most other games, except
the game of old sledge, seven up, or all-fours, as it is called. ■ I al-
ways hated the game of faro, because it was the delight of tin
black-legs. Therefore, I shall never see the law held for nought,
and virtually repealed by the interpretation of gamblers, so long
as I shall be honored with a seat on the bench; for I hold it im-
material what may be the number of cards spread out on the
table, plank, floor or blanket, or what number of cards the deal-
er may have in his box, or hold in his hand to turn over, to win
the money of his unwary betters; it is still faro—that black-leg
contrivance for which Mr. M'Intosh ought to keep them in stri-
ped caps and crocus shirts.
UNLAWFUL GAMING.
285
Form of a «• arrant for keeping a Faro Bank.
estate of Tennessee,) ss.—To any lawful officer to execute and
county, 5 return:
"Whereas, complaint has been made upon oath, by A B, of said
county, this " day of in the year of our Lord
one thousand eight hundred and before me, G II, an act-
ing justice of the peace for said county, that one C D, late of
said county, gambler, with force and arms, at, to wit, in the
county aforesaid, on the day of and on divers days and
times since that time, in the year of our Lord one thousand eight
hundred and did then and there deal at a game common-
1 y called faro, for money, bank notes and property, bet and sta-
ked by the said A B, and others, on said game of faro, dealt out
by the said C D: These are therefore to command you to take
the body of the said C D, if to be found in your county, and him
forthwith bring before me, or some other justice of the peace for
* said county, to answer the premises, and be dealt with as the law
directs. Given under my hand and seal, the date above writ-
en." [To. be signed, &c.]
Form of the Recognizance for the Defendant.
'-State of Tennessee,)
. county.J ss'
Be it remembered, that on the day of in
the year of our Lord one thousand eight hundred and
personally appeared before me, G H, an acting justice of the
peace for said county, C D, I J and L M, and acknowledged
themselves to stand justly indebted to the state of Tennes-
see, that is to say, the said C D in the sum of two thousand dol-
lars, and the said I J and L M in the sum of one thousand
dollars each, to be levied of their respective goods and chattels,
lands and tenements; but to be void if the said C D shall make
his personal appearance before the judge of our circuit court, at
a court to be holden for said county, at the court house in the
town of in said county, on the Monday of
next, then and there to answer the State of Tennessee upon a
charge of dealing at a game commonly called faro, and abide by
such sentence as shall be pronounced in the premises, and not
depart said court until discharged by due course of law. Ac-
knowledged before me, the date above written." [To be signed
by the justice.]
286
criminal division.
Form of a warrant for exhibiting the game commdnly called Thimble,
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before ine, G H, an
acting justice of the peace for said county, that one C D, late of
said county, gambler, with force and arms, at, to wit, in the coun-
ty aforesaid, on the day of in the year of our Lord
one thousand eight hundred and and at divers other
times from that day up to the present time, did then and there
exhibit the game commonly called thimble, to the said A B, and
divers others, for money [bank notes, and property, as the case
may be,] bet thereon: These are therefore to command you to
take the body of the said C D, if to be found in your county, and
him forthwith bring before me, or some other justice of the peace
for said county, to answer the premises, and be dealt with as the
law directs. Given under my hand and seal, the datfe above
written." [To be signed, &c.]
Note.—The form of a recognizance for the defendant and
securities, for exhibiting the game of thimble, will, in every re-
spect, be the same as for the game of faro, with this exception
only, that where the words, "dealing at faro," occur, the words,
"exhibiting the game commonly called thimble," must be in-
serted.
Form of the warrant for exhibiting the game of the grand-mother i
trick.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, gambler, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year of our Lord one
thousand eight hundred and did then and there exhibit
the game commonly called the grand-mother's trick, for money
bet thereon, to the said A B, and others: These are there-
fore to command you to take the body of the said C D, if to
CONSPIRACY.
287
be found in your county, and him forthwith bring before me, or
some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given under
my hand and seal, the date above written." [To be signed, &c.j
Defendant's recognizance.
'•State of Tennessee,)
county, \ ss'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D, I J and L M, before me, G H, an acting justice
of the peace for said county, and acknowledged themselves to
be justly indebted io the State of Tennessee, that is to say, the
said C D in the sum of two thousand dollars, and the said I
J and L M in the sum of one thousand dollars each, to be lev-
ied of their respective goods and chattels, lands and tene-
ments; but to be void if the said C D shall make his personal
appearance before the judge of our circuit court, at a court to
be holden for said county, at the court house in the town of
on the Monday of next, then and
there to answer the State of Tennessee upon a charge of having
exhibited the game commonly called the grand-mother's trick,
and abide such sentence as shall be pronounced in the premises,
and not depart said court until discharged by due course of law..
Acknowledged before me, the date above written." [To be
signed, &c.j
CONSPIRACY.
"If any two or more persons shall falsely and maliciously con
spire together to indict or prosecute an innocent person of any
felony, knowing such person to be innocent, and such innocent
person shall be falsely and maliciously indicted or prosecuted in
pursuance of such conspiracy, every such offender, on conviction
thereof, shall undergo confinement in said jail and penitentiary
for a period not less than two nor more than ten years." Penal
Laws, act of 1829, ch. 23, sec. 66.
At the common law, the conspiracy of two or more persons to
indict an innocent man for a felony, completed the offence; but
this section requires something more than a conspiracy of two
288
CRIMINAL DIVISION.
or more persons to indict an innocent person, knowing such per-
son to be innocent. It requires that such innocent person must
he falsely and maliciously indicted or prosecuted, in pursuance
of such conspiracy. The offence, as altered by the legislature,
it would seem, is changed from the act of conspiring together to
indict, to that of actually indicting the innocent person; for the
offence is not complete until such innocent person is falsely and
maliciously indicted or prosecuted, notwithstanding the most
wicked combination or conspiracy may have taken place be-
tween them. I am not prepared to say, that this legislative ad-
dition is an improvement of the common law.
Form of a zvarrant for a conspiracy.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 * return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, one E F,and
one I J, all late of said county, laborers, being wicked and evil-
disposed persons, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year of our Lord one
thousand eight hundred and did then and there conspire
together falsely and maliciously to indict and prosecute A B,
aforesaid, for the crime of grand larceny, upon a charge of
stealing twenty dollars in silver, he, the said A B, being then
and there innocent of said charge, and his innocency well known
to the said C D, E F and I J; nevertheless the said C 1), E F
and I J, did, in pursuance of said conspiracy, falsely and mali-
ciously prosecute and indict the said A B upon the said crime,
then and there well knowing him to be innocent of said charge:
These are therefore to command you to take the bodies of the
said C D, E F, and I J, if to be found in your county, and them
forthwith bring before me, or some justice of the peace for said
county, to answer the premises, and be dealt with as the law
directs. Given under my hand and seal, the date above writ-
ten. " [To be signed, &c.]
«ENERAIi SUBJECTS.
289
Form of the Defendanfs Recognizance.
"State of Tennessee.)
county,} ss'
Be it remembered, that on the day of .in the year
of our Lord one thousand eight hundred and personally ap-
peared, C D, E F, I J, L M, N O and P Q, before me, G 31
an acting justice of the peace for said county, and acknowledged
themselves to stand justly indebted to the State of Tennessee,
that is to say, the said C D, E F and I J in the sum of sixteen
hundred dollars each, and the said L M, security of C D. and
the said N O, security tor E F, and the said P Q, security
for I J, in the sum of one thousand dollars each, to he levied of
their respective goods and chattels, lands and tenements; but
to he void if the said C D, E F and I J shall make their per-
sonal appearance before the judge of our circuit court, at a court
to be holden for said county, at the court house in the town of
in said county, on the Monday of next,
then and there to answer the State of Tennessee upon a charge
of having falsely and maliciously conspired to indict, and falsely
and maliciously prosecuting and indicting, A B, an innocent
man, for the crime of grand larceny, purporting to be for steal-
ing twenty dollars in silver, then and there well knowing the
said A B to be innocent of said charge; and abide such sentence
as sha1! be pronounced in the premises, and not depart said court
until discharged by due course of law. Acknowledged before
me, the date above written." [To be signed, &c.]
Note.—The 'foregoing contains all the offences which are
p tinted out specially in our criminal code, as punishable in the1
public jail and penitentiary house of the State.
GENERAL SUBJECTS.
The following may be considered as the bolstering part of the
statute, and a statute of geofails, or amendments, to supply any
defects that may have been overlooked in the main body of the
criminal code. There are but few defects in it. It is a rare oc-
currence to find a statute of its length drafted with so much
system and skill. I believe it to be the least exceptionable of
any statute, in point of form, I have ever read; and I have be-
M 2
290
CRIMINAL DIVISION.
stowed great attention in the examination of all its parts. How
poorly is merit rewarded! For, strange to tell, the author of
this learned and labored statute was beaten for a seat in the k.
gislature of the State, at the next election; but if he should be
banished from the councils of his country, he must recollect,
that the great general, statesman .and just man, Aristides, was
banished for no other cause than that he was the subject of tin-
fear of shallow demagogues, and of the envy and hatred of the
weak and wicked, because he was, by all honest men, called the
just. Epaminondas replied, when a friend expressed his regrets
that he was about to leave no issue that could inherit the inval-
uable fame and renown attached to his great name: "You are
mistaken; I leave two immortal daughters, the victories of Man-
tinea and Leuctra." And so may the author and draftsman of
the criminal code say, "I leave an immortal daughter, the peni-
tentiary system, who will inherit my name and fame when I am
removed out of the way of the meanly ambitious."
In the first instance, I will notify the reader, that these legis-
lative precautions ought not to make him the less vigilant, becau-e
no aid from the mere observance of forms, can make amends for
the absence of substance.
"Whoever shall be convicted, either as principal or accessary
of any felony, or other offence not otherwise provided for by
this act, which is now punishable by death or stripes, shall un-
dergo confinement in said jail and penitentiary house for a peri-
od not less than two nor more than ten years." Penal Laws, ad
of 1829, ch. 23, sec. G7.
"In describing any of the foregoing offences, where the singu-
lar number is used as applicable to the offender, if more than
one person is concerned as principal therein, they shall be con-
sidered as included; and where an offence has been described
as committed against one, if the same has been committed agaiiri
more than one, they shall all be considered as included; and
where in describing the thing that is done, the singular number
is used, the plural is understood to be included, if the offence in-
eludes more things than one, and vice versa." Ibid, sec. 68.
"Every slave is excepted out of the provisions of this act; and
if any slave shall commit any of the olfcnces herein enumerated,
he shall be tried and punished according to the laws heretofore
enacted." Ibid) sec. 69.
GENERAL SUBJECTS.
291
"On all trials for offences before enumerated, where the ex-
islence of a corporation may be necessary to be established, a
copy of the charter of such corporation, legally authenticated,
or a book purporting to be the public statute book of the United
States, or of any of the several States, in which such charter
may be printed, shall be prima facie evidence of the existence
of such corporation." Ibid, sec. 70.
"Every person convicted of any of the foregoing offences
shall, in addition to the other penalties hereby imposed, be dis-
qualified from holding any office under this State.
"Every person convicted of any of the offences mentioned in
the ninth, eleventh, twelfth, thirteenth, fifteenth, sixteenth, seven-
teenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-
second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth,
twenty-seventh, twenty-eighth, thirtieth, thirty-first, thirty-se-
cond, thirty-third, thirty-fourth, thirty-fifth, thirty-sixth, thirty-
seventh, thirty ninth, fortieth, forty-first, forty-second, forty-third
and forty-fourth sections of this act, shall, in addition to other
penalties hereby imposed, be rendered infamous, and be incapa •
hie of being examined as a witness." Ibid, sec. 71.
"All indictments for offences enumerated in this act, which are
offences at common law, shall be good, if the offences be descri-
bed or charged according to the common law, or according to
this statute, and the party charged, on conviction, shall receive
the punishment prescribed by this act." Ibid, sec. 72.
"In all prosecutions for offences under this act, where the
fraudulent possession or concealment of the thing constitutes the
offence, it shall be sufficient to allege in the indictment, that the
parly charged fraudulently possessed or concealed such thing,
without charging or proving that any particular person, corpora-
lion or company was intended to be defrauded." Ibid, sec. 73.
"In all indictments for offences enumerated in the thirty-ninth
section of this act, except the offences of passing, or offering to
pa»s counterfeit coin; in all indictments for making fictitious in-
strumcnts, or buying the same; making or preparing plates to be
UM'd in making counterfeit or fictitious instruments; making or
preparing bank paper, and in all other indictments for offences
under this act, where, from the nature of the offence, a fraud upon
the public was intended, but no particular person was intended
CRIMINAL DIVISION.
to be defrauded, it shall be sufficient to charge the offence in the
words of the act, without averring or proving that any individu.
ual was intended to be defrauded." Ibid, sec. 74.
"In all cases of felonious homicide, under this act, the party
charged shall be entitled to thirty-five peremptory challenges,a-,
heretofore, and for all other offences, the party charged shall be
entitled to twentyr-four peremptory challenges." Ibid, sec. 75.
"The jury before whom any offender may be tried, shall de-
cide upon, and in their verdict ascertain, the time, within the re.
spective periods prescribed, during which such offender shall un-
dergo confinement in the jail and penitentiary house aforesaid,
according to the directions of this act, and the court shall pass
sentence according to the verdict and the law of the land."—
Ibid, sec. 76.
"Where an indictment is preferred, containing different counts,
alleging in one or more, that a corporation exists, and in others
that a corporation does not exist, such averments, while the in-
dictment is before the grand jury, shall be considered imnmteri-
al, and they are authorized to find a true bill on every count,
where the evidence otherwise supports the indictment.
''Where there are different charges contained in separate
counts, in the same indictment, and the jury return a general
verdict of guilty, they shall ascertain the period of imprisonment
in the same manner as though but one charge was contained in
the indictment, and the court shall pass sentence accordingly."
Ibid, sec. 77.
"In ail cases before enumerated, where compensation or dam-
ages may be adjudged to a party who complains of injury, ac-
cording to the provisions of the succeeding section of this act,
such party shall be a competent witness on the trial of the olFen-
der.
"Provided, that the court may, before such person is sworn,
require him to enter a release of his claim to compensation or
damages depending cn the event of the cause, and the court
shall further have a discretionary power, after such cause is tri-
ed, and during the same term, to cancel such release, on motion
of the party grieved" Ibid, sec. 78.
"In all cases where property shall be stolen, and the felon
sliaff be convicted, the jury before whom the trial is had, shall, in
GENERAL SUBJECTS.
293
their verdict, ascertain whether the property stolen is restored, or
forthcoming to be restored to the owner; and if it is not restored,
or forthcoming, then they shall ascertain its value, and the court
in their judgment shall direct restitution to be made, if it can be
done; or if restitution cannot be made, then the owner shall have
execution against the estate of the prisoner for the value thereof,
as ascertained by the jury.
"In all cases where property may be destroyed, or a person
has been defrauded by any of the offences before enumerated,
the jury shall, in their verdict, ascertain the damages sustained
by such offence, and the court shall thereupon give judgment in
favor of the party injured, against the party committing such
offence, for the damages as found by the jury.
"The court shall also give judgment against the party con-
victed, for the charges and costs of prosecution." Ibid, sec. 79.
"Alftrials for offences enumerated in this act, or other crimes
which shall be made punishable by confinement in the penitcn-
tiary house aforesaid, shall be cognizable only in the circuit
courts of this State, and shall be had as heretofore, reserving the
right of appeal." Ibid, sec. 80.
"After every conviction and sentence, for every offence made
punishable by confinement in the jail and penitentiary house
aforesaid, the clerk shall issue execution of fieri facias, on the
judgment which shall be rendered in favor of any party who
may be entitled to damages under the preceding sections of this
act, and for charges of prosecution in favor of the State.
"Immediately after the return day of such execution, the clerk
shall certify and transmit to the agent or superintendant of said
jail and penitentiary house, copies thereof, with the sheriff's re-
turn; and for every failure to perform this duty, the clerk shall
he liable to an action at the instance of the party grieved, and
to indictment in the circuit court for a misdemeanor in office;
and it shall be the duty of the solicitor to see that the clerk
performs this duty." Ibid, sec. 81.
"All laws coming within the purview of this act, shall, on the
operation thereof, be hereby repealed, and this act shall com-
mence and be in force from and after the time the governor
shall signify by his proclamation that said jail and penitentiary
294
CRIMINAL DIVISION.
house shall be in a state and condition for the reception of con-
victs.
"All offences committed before this act goes into operation,
shall be punished according to the laws now in force." Ibid,
sec. 82.
Having closed the labors necessary to a full understanding of
our penal code, or crimes punishable in the public jail and pen-
itentiary house, I will now endeavor to lay before the reader all
those minor offences which are ranked and classed under the
general name of misdemeanors. A misdemeanor may be thus de-
fined: "an act committed or omitted in violation of a public
law, either forbidding or commanding it." This general defini-
tion comprehends both crimes and misdemeanors, and, proper-
ly speaking, are mere synonymous terms; though, in common
usage, the word crimes, is made use of to denote such offences
as are of a deeper or more atrocious dye, while smaller faults
and omissions of less consequence are comprised under the
gentler name of misdemeanors only.
The first are offences against the public peace, of which af-
frays may be first noticed.
AFFRAYS.
An affray is thus defined, to be "the fighting of two or more
persons, in a public place, to the terror of the people."
Several things must be considered as resulting from this defi-
nition: 1. What is meant by the word, a public place? 2. What
fighting will make the offence an affray? And, 3. Must the peo-
pie be actually alarmed and terrified?
1. A public place is, the court house, public square, the streets
and alleys of the seat of justice of your county, laid off by the
commissioners of said town, or other lawfully authorized per-
sons, or the public square, streets and alleys of any other town
in your county, which have been laid off by the authority of the
law, and all the public roads laid out by the authority of the
county court, and upon which an overseer and hands are as-
AFFRAYS.
295
signed. All these are public places, in and of themselves, and
the lighting of two or more persons upon any of these public
places, will constitute an affray, though there should be no per-
son to witness the conflict, but those concerned in it; because
these are highways laid out by law, for the use of a peaceable
public, and their quietude is not to be disturbed without incur-
ring a heavy penalty. Wherever persons are assembled togeth-
er, though never so transiently, for the time, makes it a public
place, and any fighting there will make it an affray; for if the
fighting be in a private place, it is no affray, but a mere as-
sault and battery. One man may he guilty of committing an
affray by fighting another, who makes no resistance, or acts
merely in self-defence, if such fighting be in a public place; as
if a man is standing in a court-yard, or other public place, peace-
ably, and another steps up to and strikes him, and attempts to
follow up his blow, the person assaulted may lawfully defend
himself, and the breach of the peace cometh from him who com-
menced the affray. All persons inciting others to fight in a
public place, are affrayers, as much as the combatants them-
selves; and all your noisy hurra boys, who incite them while in
conflict, to a continuance of it, are affrayers in equal degree
with the combatants.
Affrays are of a more aggravated nature when they are com-
mitted in disturbing the officers of justice in the due execution
of the duties of their offices. The repelling or resisting an officer of
the law in the due execution of his duty, will constitute the act
an affray, and the party resisting such officer are affrayers in any
place. This is a necessary protection the law yields to its offi-
ceis, as they are sworn to do execution of all process put into
their hands. lie who will bid defiance to the regular process of
the law, ought to meet with a severe punishment therefor. Or
where respect for the particular place ought to restrain and reg-
ulate men's actions and behaviour, more than in common ones,
as in the several courts of justice, and before officers who are
sworn to keep the peace. And upon the same account also, all
affrays in a church, or church-yard, are esteemed very heinous at
the common law, as being an indignity to Him to whose service
they are consecrated. But such conduct in the United States is
-till more reprehensible, which will be more fully explained
296
CRIMINAL DIVISION.
when I come to speak of the act of disturbing an-assembly of
people who may meet for the worship of the Deity.
3. Must the people be actually alarmed and terrified? It b
necessary to lay the offence as being done to the terror of thr
people; but actual terror or alarm need not be proved, bt>
cause the law presumes all civilized people to be alarmed aiid
terrified at such brutal conduct. Man changed from a social
being to that of a snapping cur—from the man to the mastiff—
the law has wisely considered a sufficient cause of terror, espe.
cially when found in canine strife, in places where the tender
sex must necessarily pass and repass.
Form of a warrant for an affray.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G If, an acting
justice of the peace for said county, that C D and E F, late of
said county, laborers, with force and arms, at to wit, in
the county aforesaid, on the day of in ,the year of our
Lord one thousand eight hundred and did then and there
eommit an affray, by fighting together in street of the
town of , the said street then and there being a publii
place, to the terror of the people: These are therefore to com-
mand you to take the bodies of the said C D and E F, if lo be
found in your county, and them forthwith bring before me, or
some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given under my
hand and seal, the date above written. " [To be officially sign-
«d and sealed by the justice.]
Form of a warrant for an affray.
wState of Tennessee,) ss.—To any lawful officer to execute and
county, £ return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G II, au
acting justice of the peace for said county, that one C D, late
of said county, yeoman, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year of
affrays.
297
our Lord one thousand eight hundred and did then and
there commit an affray, by fighting one E F, on the public road
leading from to in said county, which said public road
was then and there a public place, to the terror of the people:
These are therefore to command you to take the body of the
said C D, if to be found in your county, and him forthwith bring
before me, or some other justice of the peace for said county, to
answer the premises, and be dealt with as the law directs,—
Given under my hand and seal, the date above written." [To
be signed, tfce. by the justice.]
Form of the prosecutor's recognizance*
*State of Tennessee,)
county,} SS'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared A B, of said county, before me, G II, an acting justice
of the peace for said county, and acknowledged himself to stand
justly indebted to the State of Tennessee in the sum of two
hundred and fifty dollars, to be levied of his proper goods and
chattels, lands and tenements; but to be void if the said A B
shall make his personal appearance before the judge of pur cir-
ouit court, at a court to be holden for said county, at the court
house in the town of on the Monday of
next, then and there to prosecute C D and E F, upon a charge
of an affray, by fighting together in a public place, to the terror
of the people; and not depart said court until leave thereof shall
be first had and obtained. Acknowledged before me, the date
above written." [To be signed, &c.]
Note.—I will here premise, that two hundred and fifty dol-
lars is the least sum in which any person ought to be bound, ei-
tlier as a prosecutor or as a witness, in a criminal case, as that
is the legal penalty incurred by violating the command of a sub-
puma in a criminal case. Two hundred -and fifty dollars is a
sum sufficiently large to bind a defendant in, for an assault and
battery, or an affray, where no aggravating circumstances attend
them. But the sum in a defendant's recognizance ought to be
increased according to the aggravation attending the offence.
N 2
298
CRIMINAL DIVISION.
Form of the defendant''s recognizance.
"State of Tennessee,)
county,) So*
Be it remembered, that on the day of in the jtr.r
of our Lord one thousand eight hundred and personally
appeared C D, E F, I J and L M, before me, GII, an acting ju,.
tice of the peace for said county, and acknowledged -themselu*
to stand justly indebted to the State of Tennessee, that is to say
the said C D and E F in the sum of four hundred dollars each,
and the said I J, as security of the said C D, and the said L M.
as security of the said E F, in the sum of two hundred and fifty
dollars each, to be levied of their respective goods and chattel,
lands and tenements; but to be void if the said C D and E T
shall make their personal appearance before the judge of our
circuit court, [or before the justices of our court of pleas and
quarter sessions, as the case may be,] at a court to be holdcn
for said county, at the court house in the town of on the
Monday of next, then and there to ansver
the State of Tennessee upon a charge of having committed an
affray, by fighting together in a public place, to the terror of
the people in said county; and abide such sentence as shall he
pronounced in the premises, and not depart said court until
discharged by due course of law. Acknowledged before me, the
date above written. » [To be signed, &c.]
ASSAULTS AND BATTERIES.
I shall here consider the following particulars: 1. What shall
amount to an assault. 2. What shall be said to be a batten-.
3. In what cases they may he justified. 4. In what manner thn
are to be punished.
1. An assault is an offer or an attempt, with force and violence,
to do corporeal hurt to another; as by striking at him, with or
without a weapon, or presenting a gun at him, within such a di>-
tance to which the gun-will carry, or pointing a pitchfork at him.
standing within the reach of it, or presenting one's fist at him,
in an attitude of striking at him, or by any other such like act,
done in a rude, angry, revengeful and threatening manner.—
Finch, an ancient writer on criminal law, says: "an assault is the
ASSAULTS ANT) BATTERIES.
299
unlawful setting upon the person of another." But no words
ian amount to an assault. G Mod. 173-4. 2 Roll. 545. 1 Mod.
3. 1 Iveb. 931. 1 IIaw.2G3.
2. A battery is any injury whatever, done to the person of an-
other, in an insolent, rude, angry or revengeful manner. The
law draws no lines of distinction between small and great batte-
rios, but in the manner of punishment, and therefore prohibits
the lowest degrees of them, as spitting in one's face, or the least
touch of the person of another in a rude, angry, insolent,revenge-
fill manner, or by violently jostling him out of the way, are con-
tillered batteries in the eye of the law. Salk. 348. 6 Mod. 149,
172. 1 Ilaw. 2G3. Lamb. 12G. 3 Lev. 404. Skin. 357.
3. In what cases may an assault and battery be justified? A
man may gently lay his hand upon a person that he desires an
oilicer to arrest, and say, this is the man. A parent may, in a
reasonable manner, chastise his child; a master his servant, or
indented apprentice; a schoolmaster his scholar; a jailor his
prisoner, where he is refractory. But the chastisement, in all
tliew cases, must be reasonable, and with proper instruments of
cha-dhement. A man is justified in laying hands upon a mad-
man and binding him, to prevent mischief; or where a man
comes as a trespasser upon his lands, or into his house, and he
bids him to depart, and he refuses to do so, he will be justified
in laying his hands gently upon him, and leading him out of his
house, or off his possessions; and if he resist with force, ho is
authorized to use force to expel him from his possessions. Or
lie may lay his hands upon a man gently, to restrain him when
lie is inciting a dog against another; or he may beat a man, to
repel him who makes an assault upon him, his wife, parents, or
children; or a servant may beat another in the proper defence
of his master; or a man may justify beating another to prevent
him from committing a felony. I will here add, that where a
man beats another in his own defence, who first assaults him, &c.
he may take an advantage thereof upon an indictment, as well
a*, upon an action to recover damages; but with this difference,
that upon an indictment he may give it in evidence upon the
general issue of "not guilty," and in the latter case it must be
pleaded specially. 1 Haw. 259. Dalt. ch. 72. Crom. 136. 1 Sid.
CRIMINAL DIVISION.
176. Sum. 31. 1 Sid. 177. Dalt. ch. 72. Crom. 28, 136. Hatly,
149. 2 Roll. Ab. 546. Cro. Jac. 134, 236. Cro. Car. 138.
4. As to how unlawful assaults and batteries are punished.—There
is no doubt but the wrong-doer is subject both to an action at the
suit of the party, wherein he shall render-damages, &c. and also
an indictment at the suit of the State, wherein he shall be fined
according to the enormity of the offence. Imprisonment may be
added, at the discretion of the court, in cases of great violence.
8 Mod. 283. 1 Bac. Ab. 156. 1 Haw. 262.
Form of a warrant for an assault and battery.
"State of Tennessee,) . ss.~To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G II,
an acting justice of the peace for said county, that one C D,
late of said county, yeoman, with force and arms, at, to rvit,
in the county aforesaid, on the day of in the year
of our Lord one thousand eight hundred and did then and
there make an assault upon the body of the said A B, and him,
the said A B, did then and there beat, wound and ill treat, to the
great damage of him the said A B, and against the peace and
dignity of the State: These are therefore to command you to
take the body of the said C D, if to be found in your county,
and him forthwith bring before me, or some other justice of the
peace for said county, to answer the premises, and be dealt
with as the law directs. Given under my hand and ^seal, the
date above written." [To be signed, &c.]
Form of the defendants recognizance.
"State of Tennessee,)
county,)
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and person-
ly appeared before me, G II, an acting justice of the peace for
said county, C D and E F, and acknowledged themselves to
stand justly indebted to the State of Tennessee, that is to say,
the said C D in the sum of five hundred dollars, and the said
E F in the sum of two hundred and fifty dollars, to be levied
of their respective goods and chattels, lands and tenements,
riots, routs and unlawful assemblies.
301
luit to be void if the-said C D shall make his personal ap-
pearance before the judge of our circuit court, at a court to
be holden for said county, at the court house in the town of
on the Monday of next, then and there to .
answer the State of Tennessee upon a charge of an assault and
battery upon the hody of A B, and abide by such sentence as
shall be pronounced in the premises, and not depart said court
until discharged by due course of law. Acknowledged before
me, the date above written." [To be signed, <fcc.]
RIOTS, ROUTS AND UNLAWFUL ASSEMBLIES.
1. An unlawful assembly is where three or more persons do
assemble themselves together to do an unlawful act of violence,
as to pull doMli enclosures, unroof a house, beat a man, or the
like, and depart and separate without making any advances
towards the accomplishment of the design.
2. A rout is where three or more persons meet to do an un-
lawful act of violence, upon a common cause or quarrel, or upon
a common interest of any kind, as to beat a man, or number of
men, forcibly to break down fences upon real or pretended right
of common, or of way, or the like, and make some advance to^
ward the accomplishment of the design.
3. A riot most usually includes both the former offences. It
seems to he a tumultuous disturbance of the public peace, by three
or more persons assembling without the authority of the law,
with an understanding of mutual aid and assistance against any
and every person who shall oppose them in the execution of
their intended enterprise, and, with such understanding, carry
their design into execution. Haw. 29. Salk. 594—5. 3 Inst. 174.
3 Mod. 141. 1 Lord Raym. 484. 12 Mod. 262, 509. Or being
lawfully assembled at any place, without the least concert or un-
Jerstanding between them to do any act, yet, upon a dispute
happening to arise among them, if they shall form themselves in-
to parties, with an understanding of mutual assistance, and then
make an affray, they are surely guilty of a riot. Though they did
not meet originally with that intent, yet their confederation and
subsequent breach of the peace makes the offence complete.—
Burrow's Rep. 2073. One minute's previous concert or confed
302
criminal division.
cration is as good as a daj, week, or mohth; and from tlie mo
ment of their confederation, the law considers them as having
come together to do the unlawful act.
The public peace and quiet of society are paramount to any
inconvenience of ah inactive character, whether it he of a pri-
vate or public nature; therefore, three or more persons may be
guilty of a riot in doing a lawful act, as removing a nuisance in
a violent and tumultuous manner. ;
All persons who shall see riotous parties assembled, and shall
take sides with them, are as guilty as if they had entered into the
confederation originallv.
There must be some offer or attempt of violence; either to the
person of a man, or to his possessions, as by beating him, or for-
cing him to quit the possession of his lands or goods, or attempts
with force and violence to make him do so, but are overpower-
ed, or otherwise fail in the attempt. Therefore, a number of
persons riding on the road, or other public place, with unusual
weapons, or otherwise assembling together in such a manner as
is apt to raise a terror in the people, without any offer of vio-
lence to any one, either in respect to his person or possessions,
are not guilty of riot, but only of an unlawful assembly; but if
any the least violence be offered to the person or possessions of
another, it is a riot. 1 Hawk. P. C. 29,30.
It sometimes happens that only one or two of a band of riot-
ers can be identified; then and in. that case, those who are
known ought to be proceeded against, "with others to the pros-
ecutor unknown," when the case is first proceeded in, and to
the "jurors unknown," when it is brought before the grand jury.
But it is indispensible to a riot, that three persons - at' least,
whether known or unknown, should be engaged in it.
Form of a warrant for an unlawful assembly.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,y return: /
Whereas, complaint has been made upon oath by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one CD, E F and I J,
late of said county, yeoman, with force and arms, at, to wit,
in the county aforesaid, on the day of in the year
RIOTS, ROUTS AND UNLAWFUL ASSEMBLIES. 303
A
of our Lord one thousand eight hundred and did then and
there unlawfully assemble themselves together, upon an agree-
ment of mutual aid and assistance, to do an unlawful act of vio-
lonce, to wit, to beat the said A B, hut dispersed without making.
any advances towards it: These are therefore to command you
to take the bodies of the said C D, E F and I J, if to be found
in your county, and them forthwith bring before me, or some oth-
cr justice of the peace for said county, to answer the premises,
and be dealt with as the law directs. Given under my hand
and seal, the date above written." [To be signed, &c.]
Form of the defendant^ s recognizance.
"State of Tennessee,)
county,\ ss' ■
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D, E F and I J, before me, G H, an acting justice
of the peace for said county, and L M, their joint security,
and acknowledged themselves to stand justly indebted to the
State of Tennessee, that is to say, the said C D, E F and I J
in the sum of seven hundred and fifty dollars, jointly, and the
said L M in the sum of seven hundred and fifty dollars, to be lev-
ied of their respective goods and chattels, lands and tenements;
but to be void if the said CD, EF and I J shall make their per-
sonal appearance before the judge of our circuit court, at a court
to be holden for said county, at the court house in the town of
in said county,on the Monday of next,
then and there to answer the State of Tennessee upon a charge
of having made an unlawful assembly, with an intent of doing
an unlawful act of violence, that is to say, to beat one A B, arid
abide by such sentence as shall be pronounced in the premises,
and not depart said court until discharged by due course of
law. Acknowdedged before me, the date above written.
G H."
Form of a warrant for a Rout.
"State of Tennessee,T ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
m
CRIMINAL DIVISION.
justice of the peace for said county, that one C D, E F and I J?
late of said county, yeomen, with force and arms, at, to 'wit, in
the county aforesaid, on the day of in the year
aforesaid, did then and there unlawfully and routbusly assemble
themselves together, upon a common cause, with an intent to do
an unlawful act of violence, by pulling down a certain house in
which the said A B was, with his family, then and there resi-
ding, and of which he was then and there peaceably possessed;
and being so assembled, did then and there unlawfully and rout-
ously advance towards the accomplishment of their design: These
are therefore to command you to take the bodies of the said C D,
E F and I J, if to be found in your county, and them forthwith
bring before me, or some other justice of the peace for said coun-
ty, to answer the premises, and be dealt with as the law directs.
Given under my hand and seal, the date above written." [To
be signed, &c.]
Form of the defendants recognizance.
*'State of Tennessee,)
> ss»
county,)
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and - person-
ally appeared C D, E F and I J, and L M, security for C D,
and N O, security for E F, and P Q, security for I J, before me,
G H, an acting justice of the peace for said county, and ac-
knowledgcd themselves to stand justly indebted to the State of
Tennessee, that is to say, the said C D, E F and I J in the sum
of three hundred dollars each, and the said L M, N 0 and P Q,
securities as aforesaid, in thesuip of one hundred and fifty dollars
each, to be levied of their respective goods and chattels, lands
and tenements; but to be void if the said C D, E F and I J
shall make their personal appearance before the justices of the
court of pleas and quarter sessions, at a court to be holden for
said county, at the court house in the town of on the
Monday of next, then and there to answer the State of
Tennessee upon a charge of having committed a rout, in at-
tempting to pull down the dwelling house of one A B; and abide
by such sentence as shall be pronounced in the premises, and
not depart said court until discharged by due course of law.—
RIOTS, ROUTS AND UNLAWFUL ASSEMBLIES.
305
Acknowledged before me, the date above written. " [To be
signed by the justice.]
Form of a warrant for a Riot.
'•State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, E F and
I J, late of said county, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year afore-
said, did then and there unlawfully, routously and riotously as-
semble themselves together, and being so assembled, aid then
and there unlawfully, routously and riotously make an assault
and battery upon the body of the said A B, and him the said A B,
did beat, bruise and ill-treat: These are therefore to command
you to take the bodies of the said C D, E F and I J, if to be found
in your county, and them forthwith bring before me, or some
other justice of the peace for said county, to answer the pre-
miscs, and be dealt with as the law directs. Given under my
hand and seal, the date above written." [To be signed, &c.]
Form of the defendant's recognizance.
"State of Tennessee,)
county,) SS'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D, E Fand I J, and L M and N O, joint securities
fir the said C D, E F and I J, before me, G II, an acting justice
of the peace for said county, and acknowledged themselves to
stand justly indebted to the . State of Tennessee, that is to say,
the said C D, E F and I J in the sum of twelve hundred dollars,
jointly, and the said L M and N O in the sum of seven hundred
and fifty dollars, jointly, to be levied of their respective goods
and chattels, lands and tenements; but to be void if the said C
I), E F and I J shall make their personal appearance before
the judge of our circuit court, at a court to be holden for said
county, at the court house in the town of on the
Monday of next, then and there to answer the State of
Tennessee upon a charge of having committed a riot, in beating
0 2
300
CRIMINAL DIVISION.
A B; and abide such sentence as shall be pronounced in the
premises, and not depart said court until discharged by due
course of law. Acknowledged before me, the date above writ-
ten." [To be signed by the justice.]
CARRYING UNLAWFUL ARMS.
Riding or going armed with dangerous or unusual weapon?,
is a crime against the public peace, by terrifying the good
people.
When three or more shall assemble themselves together, arm-
ed as aforesaid, either on foot or horse-back, they are to be con-
sidered as forming an unlawful assembly, and may be proceed-
ed against accordingly. And where they made any advance to-
wards the execution of any concerted design, with such unusual
weapons, and disperse without executing it, (as has already been
seen) wrill make a rout.
But riding or going armed is a crime, where but one person
shall be concerned in it, if the weapons are of an unusual kind.
A man in this country, carrying his ride, musket or shot-gun,
cannot be said to be going armed with dangerous or unusual
weapons; for though they are dangerous, they are not unusual,
and therefore not likely to excite terror in the people. But the
arms against which our law, raises its voice are those worn by
your bucks and bloods, who adorn their bosoms with gold and
silver hilted dirks, daggers and stilettos, and their waists with
pocket or belt pistols, with which cowards sometimes arm them-
selves cap-a-pie. These weapons, among all civilized men,
have been looked upon as dangerous, when carried by such per-
sons as commonly wear them. They are sometimes worn by
desperate men, such men as may be said to be hostce humani
generis, (the enemies of the human race;) but much more fre-
qucntlyby a class of men, not very distinguished for real bin-
very, and who frequently do mischief out of dread and sore
alarm,
Form of a warrant.
"State of Tennessee,) ss.—To any lawful oflicer to execute and
county ,5 return:
Whereas, complaint has been made upon oath, by A B, of
CARRYING UNLAWFUL ARMS.
307
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C 1), late of said
county, yeoman, regardless of the peace and quiet of society, and
the opinions of good men, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year of our Lord
one thousand eight hundred and did then and there go
about armed with dangerous and unusual weapons, to wit, a dirk
in his bosom, and pistols in a belt fastened round his waist, and
other pistols in his pockets, to the great terror of the good peo-
pie of this county aforesaid: These are therefore to command
you to take the body of the said C D, if to be found in your coun-
tv, and him forthwith bring before me, or some other justice of
the peace for said county, to answer the premises, and be dealt
with as the law directs. Given under my hand and seal, the
date above written." [To be signed, &c.]
Form of the defendant's recognizance.
kiState of Tennessee,)
j '> ss.
county, S
Be it remembered, that cn the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D and E F, before me, G II, an acting justice of
the peace for said county, and acknowledged themselves to stand
justly indebted to the State of Tennessee, that is to say, the said
T D in the sum of two hundred<and fifty dollars, and the said E
F in the sum of two hundred and fifty dollars, to be levied of
their respective goods and chattels, lands and tenements; but
to he void if the said C D shall make his personal appearance
before the justices of the court of pleas and quarter sessions for
said county, at a court to be holden for said county, at the court
house in the town of 011 the Monday of next,
tin-n and there to answer the State of Tennessee upon a charge
of going armed with dangerous and unusual weapons, to the
terror of the people; and abide such sentence as shall be pro-
nounccd in the premises, and not depart said court until dis-
charged by due course of law. Acknowledged before me, the
date above written." [To be signed, &c.]
308
CRIMINAL DIVISION.
FALSE AND PRETENDED PROPHECIES.
Where these are made with an intent to alarm or disturb the
public, they are unlawful and highly penal, as tending to raise
enthusiastic jealousies in the people, and terrify them with ima-
ginary fears. This offence is not of frequent occurrence in this
country, though it sometimes happens that men are found weak
and wicked enough to pretend that they are gifted with , super-
natural powers, which enable them to lift the curtain of time,
peep into the arcana of futurity, and reveal events which shall
happen for ages to come.
Form of a warrant for the above.
"State of Tennessee,) ss.—To any lawful officer to execute and
county, $ return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, laborer, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year of our Lord
one thousand eight hundred and did then and there
make, utter and publish, to and in the presence of divers good
citizens of the. county and State, this false and pretended proph-
ecy, in substance as follows: [here state the prophecy]—with
an intent to alarm the people and disturb the public peace:
These are therefore to command you to take the body of the said
C D, if to be found in your county, and him forthwith bring be-
fore me, or some other justice of the peace for said county, to
answer the premises, and be dealt with as the law directs. Giv-
en under my hand and seal, the date above written." [To be
signed, &c.J
Form of a recognizance for the defendant.
"State of Tennessee,)
county,5 SS'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and per-
sonally appeared C D, I J and L M, before me, G II, an acting
justice of the peace for said county, and acknowledged them-
selves to stand justly indebted to the State of Tennessee, that is
LIBELS.
309
to say, the said C D in the sum of one thousand dollars, and
the said I J and L M in the sum of live hundred dollars each,
to be levied of their respective goods and chattels, lands and
tenements; but to be void if the said C D shall make his per-
sonal appearance before the judge of our circuit court, at a court
to be holden for said county, at the court house in the town of
on the Monday of next, then and there
to answer the State of Tennessee upon a charge of having
made, uttered and published, in the presence and hearing of di-
vers good citizens, a false and pretended prophecy, in substance
as follows: [here state the prophecy] with an intent to alarm
the people, and disturb the public peace; and abide by such sen-
tence as shall be pronounced in the premises, and not depart
said court until discharged by due course of law. Acknowled- .
ged before me, the date above written." [To be signed^ &c.]
The prosecutor's and witnesses' recognizance may easily be
framed from the defendant's recognizance.
LIBELS.
The libeli famosi of the ancients, when taken in their lar-
gest and most comprehensive sense, signify any writings, pic^
tures, or the like, of an illegal or immoral tendency; but in
the sense under which we are about to consider them, are mali-
cious defamations of any person, especially a magistrate, made
public by either printing, writing, signs, or pictures, in order to
provoke him to wrath, or expose him to public contempt, hatred
and ridicule.
When a person in this State has been indicted or presented
for publishing a libel, he may, in his defence, give the truth of
the matter charged in evidence, under the general issue of not
gnilti/, and have every advantage thereof they could have under
a plea of justification in actions for libels. Act of 1805, ch. 0.
A magistrate is any one publicly invested with authority, as
the governor, chief justice and associate judges of the supreme
court, judges of the circuit courts, chancellors, justices of the
peace, and mayors of cities and towns corporate. But the only
difference between those and unofficial persons, is a severer pun-
310
CRIMINAL DIVISION.
ishment inflicted in consequence of the injury that is done the
public in debasing her functionaries.
Those who compose a libel are punishable, as well as those
who publish it; and so may those who procure.it to be composed
or published. Ignorance of the contents of a libel, is no justifi-
cation for dispersing a libel; and if a person either read, or hear
read, a libel, and afterwards maliciously read or repeat it, or
lend it to another with the same spirit, he is guilty of a publica-
lion. The copying a libel is a prima facie evidence of pub-
lication. Alman's case, 5 Bur. 2626. 9 Co. 59. Moor. 267, 627,
813. Strange, 77. Bull. N. P, G. Fitzgibbon, 47. Ld. Raym. 44.
5 Co. 125. 5 Mod. 167, 1G3. Salk. 417-18, 646.
Form of a warrant for a libel.
"State of Tennessee.) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of said
county, this " day of in the year of our Lord on<
thousand eight hundred and before me, G II, anacl-
ing justice of the peace for said county, that one C D, late
of said county, printer, with force and arms, at, to wit, in the
county aforesaid, on the . day of in the year
aforesaid, did then and there compose, utter, and publish in
print, in a newspaper entitled published at
by tl iC said C D, a certain false, malicious, defamatory libel, in
the words following, that is to say: "The people are not prob-
ably acquainted with Mr. A B; if they are not, I will inform
them who he is. A B resided at in the State of Geor-
gia, and where he would most probably have resided until
now, but for the small circumstance that he took a particular
liking to a certain bay gelding, the property of I J, of
in the State aforesaid, and which affection for said horse indu-
ced the said A B to ride him oif one night."—(Meaning there-
by that the said A B had then and there feloniously stolen, t;i-
ken and carried away said horse)—with an intent to provoke the
said A 13 to wrath, and expose him to public contempt, hatred and
ridicule: These are therefore to command you to take the bo-
dy of the said C I), if to be found in your county, and him
forthwith bring before me, or some other justice of the peace for
said county, to answer the premises, and be dealt with as the
ltbels.
311
law directs. Given under my hand and seal, the date above,
written." [To be signed, &c.]
]\tote.—This form of warrant will do for a libel published by
anv one, only varying the substance of the charge to suit the
facts of each particular case. The process may run against him
who composed the libel, only in one form, against the publisher
in another, against the printer in another, &c. until all concern-
ed in the libel shall be reached.
Form of the prosecutor's recognizance.
"State of Tennessee,)
county,) ss'
Be it remembered, that on the day of in the
vear of our Lord one thousand eight hundred and per-
sonally appeared A B, before me, G II, an acting justice of
the peace for said county, and acknowledged himself to stand
ju-tly indebted to the State of Tennessee in the sum of two hun-
ilred and fifty dollars, to be levied of his goods and chattels, lands
and tenements; but to be void if the said A B shall make his per-
«onal appearance before the judge of our circuit court, at a court
to be holden for said county, at the court house in the town of
on the Monday of next, then and there to
prosecute one C D for composing and publishing in print, a cer-
tain false, malicious, defamatory libel, in which he charged the
siid A B with the crime of horse-stealing; and not depart said
court without leave thereof first had and obtained. Acknow-
lodged before me, the date above written." [To be signed, Ac.]
Form of a defendant's recognizance.
'•State of Ten nessee,)
> $s»
county,)
Be it remembered, that on the day of in the year
of our Lord one thousand eight hund-ed and personally
appeared C D, I J and L M, before me, G II, an acting justice
of the peace for said county, and acknowledged themselves to
-tand justly indebted to the State of Tennessee, that is to say, the
said C I) in the sum of one thousand dollars, and the said I J
and L M in the sum of five hundred dollars each, to be levied of
their respective goods and chattels, lands and tenements; but to
he -void if the said C D shall make his personal appearance be-
f»re the judge of our circuit court, at a court to be holden for
312
CRIMINAL DIVISION.
said county, at the court house in the town of in said coun-
ty, on the Monday of next, then and there to an-
swer the State of Tennessee upon a charge of having compo-
sed and published in print, in a certain newspaper, entitled
published by the said C D, in the town of in
said State, a certain false, malicious, defamatory libel, against
one A B, wherein and whereby the said A B is charged with
the crime of horse-stealing; and abide such sentence as shall be
pronounced in the premises, and not depart said court until dis-
charged by due course of law. Acknowledged before me, the
date above written." [To be signed, &c,J
DISTURBING AN ASSEMBLY MET TOGETHER TO
WORSHIP THE DEITY.
By the constitution, article XI, section 3, the rights of con-
science are secured to every soul in the following strong and ner-
vous language, viz.
"All men have a natural and indefeasible right to worship Al-
mighty God according to the dictates of their own conscience;
no man can, of right, be compelled to attend, erect or sup-
port any place of worship, or to maintain any minister, against
his consent; no human authority can, in any case whate-
ver, control or interfere with the rights of conscience; and no
preference shall ever be given by law to any religious estah-
lishment, or modes of worship."
Sec. 4. "No religious test shall ever be required as a qualifi-
cation to any office or public trust under this State."
The right to worship God in a peaceable manner, according
to the dictates of conscience, is not only a natural right, but the
sages that framed our constitution have taken great care to sc-
cure this inestimable privilege, by the fundamental law of the
land. It will be therefore readily seen, that the disturbing pub-
lie worship is one of the most high and presumptuous crimes that
a man is capable of committing in this country, that inflicts no
more immediate positive injury on others; for it defies the consti-
tution of heaven and earth. Such a disturber says, by his act;,
"I am not subject to the rules of civilized man, nor will I dread
the vengeance of Heaven." The common respect for the good
opinion of men, and the ordinary decencies of life, it would seem.
DISTURBING PUBLIC WORSHIP.
313
ought to be sufficient to restrain the most vicious from so wanton
a crime; but the fact is quite otherwise. The legislature has
been compelled to pass several severe laws upon the subject since
the year 1800. And by the enactment of the act of 1801, chap.
35, and from the language it employs, it may be inferred that men
were then equally as much, if not more, inclined to disturb pub-
lie worship,than they are at this day; and it would seem, that
the punishment had been laid on such offenders very sparingly,
as the act alluded to says, that all who "shall interrupt a congre-
gation assembled for the purpose of worshiping the Deity, shall
be dealt with as rioters at the common law." Rioters, by the
common law, arc punished by fine and imprisonment, at the dis-
cretion of the court.
By an act subsequently passed, (1815, ch. 60, sec. 1,) it is spe-
dally made the duty of all justices of the peace in this State,
and they are severally required to observe the same, that when
any wicked and disorderly persons shall, by words or gestures, or
in any other manner whatever, disturb any congregation which
may be assembled together for the worship of Almighty God, or
who shall encourage, aid or assist in such disturbance, to the vi-
olution of any rule or regulation which may have been adopted
by them for their own government and good order, provided such
rule and regulation be previously made public, whether such of-
fences may have been committed within the presence of said
justices of the peace, while said congregation is so assembled, or
may come to their knowdedge by information of others, shall im-
mediately cause such offender or offenders to be apprehended
and brought before them, or some other justice of the peace for
the county in which such offence may be committed, who shall,
on the proof of the offence, fine them not exceeding five dollars,
and bind them in sufficient security for their appearance at the
next circuit or county court, where they shall be proceeded
against according to the provisions of the act of 1801, chapter
35, that is to say, punish them as though they were found guilty
of a riot.
It is by the same act, sec. 2, made the duty of the sheriffs, cor-
oners and constables in this State, whenever any offence may
be committed within the meaning of this act, against the rules
or regulations of any worshiping assembly, or to the disturbance
314
CRIMINAL DIVISION.
or annoyance thereof, and which may happen within their own
knowledge or observation, they are hereby authorized and re-
quired forthwith to bring such offenders (with or without war-
rant) before some justice or justices of the peace for the county
where the offence was committed, then and there to be dealt
with as pointed out in the first section of the act.
And when it may he necessary for the suppression of such
disturbance, and in the absence of regularly appointed officers,
it shall be the duty of any justice of the peace to deputise some
proper and fit person to act in that capacity, whose acts shall
be as good and valid in law as though he had been regularly
appointed.
And, by a subsequent act, it is further provided, "that if any
person shall carry within one mile of any place of public wnr-
ship, ardent spirits, or other intoxicating liquors, and shall attempt
to sell the same, such person or persons shall be liable, for each
and every offence, to pay to any person who will sue for the same,
the sum of ten dollars, to be recovered by action of debt before
a justice of the peace, and shall moreover be liable to present-
ment or indictment in the county or circuit court, and on con-
viction be fined and imprisoned at the discretion of the court:
Provided, such persons stilling or offering to sell ardent spirits, or
other intoxicating liquors, at their usual place of selling the
same, (though within one mile) shall not be included in the pen-
alties of this act." Act of 1824, ch. 3, see. 1.
"Any person who shall sell, or offer to sell, within the view
of any worshiping assembly, on the sabbath day, any article-
of traffic whatsoever, in such a manner as to disturb such wor-
sliiping assembly, such person or persons shall be liable to all
the penalties prescribed by the first section of this act: Provi/h I
also, that this act shall not extend to persons selling such article!
of traffic as they lawfully may sell on the sabbath day, and at
his usual place of selling the same." Ibid, sec. 2.
The disturbance prohibited by law does not only include all
such as shall take place during the time of divine service, but any
disturbance that may be made from the first assembling of the
congregation until the same shall be dispersed.
Any words or gestures used, that shall be of a vulgar, indecent
or immoral tendency, will be within the prohibition of the stat-
DISTURBING PUBLIC WORSHIP.
315
uto. But not only thesefbut any words of muttering, which are
sometimes used by weak and wicked sectarians, who are fault-
finding and complaining, and contradicting what the speaker is
saying, during the delivery of his discourse. And sometimes
bad men, who call themselves preachers of the gospel, will raise
up at the close of a sermon or exhortation, and ask an audience
of the congregation until he shall prove all their speaker had
been saying was untrue, or words to that effect, to the no small
excitement and disturbance of the congregation. Any such
disturbance the law abhors, and will punish with severity.—
Crouds or squads meeting together, and talking loud enough to
be heard by those who are orderly attending divine service,
whether in controversy about disputed points of faith, or any
other matters, lay themselves liable to the penalties of the law.
Nothing more than the observance of good breeding is required
by the law at such places. The law wisely considers, that no
one has any business in or at a worshiping assembly, who has not
a sufficient regard for himself, the assembly, or the God whom
tliey worship, to behave as a gentleman or lady always will do.
It is a matter of regret that the justices of the peace, sher-
iff, coroners and constables should be so remiss in the observance
of their duties. I imagine they do not know, that when the law
enjoins a duty upon any of its officers, that a neglect is an indict-
able offence; and it would seem that the well-ordered part of
society have been equally ignorant of that fact, or those gentle-
men who wish to wear office at the expense of a shameful neg-
lect of the duties incident to it, would long since have been made
examples of. They are now informed, if never before, that a
neglect of the performance of any duty enjoined on them by
law, is an indictable offence; and they will not be permitted to
plead their ignorance as an excuse, "for where knowledge is
made a duty, ignorance is a crime."
When an officer is deputized by a justice of the peace, (in
absence of regularly appointed officers,) he is bound to the ob-
scrvance of every duty as much as any other officer. The jus-
tice of the peace is authorized to appoint any man a constable,
protem. under this statute, (who is liable to have the office of con-
stable imposed upon him, without consulting him,) and he is
bound to act therein until the disturbance is suppressed. All
316
CRIMINAL DIVISION.
persons in commission of any office, civil or military, or members
of the general assembly, members of congress, ministers of the
gospel, and all who have served in the office of constable within
five years, are not obliged to take upon themselves the office of
constable.
Form of a warrant for disturbing public worship.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that C D and E F, late of
said county, yeomen, with force and arms, at to wit, in
the county aforesaid, on the day of in the year afore-
said, did then and there unlawfully disturb a congregation of
people, then and there assembled for the purpose of worship-
ing Almighty God, by loud and boisterous language, of a threat-
ening and menacing character, interspersed with profane oaths,
to one I J, and others of said assembly: These are therefore to
command you to take the bodies of the said C D and E F,if lo be
found in your county, and them forthwith bring before me, or
some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given under my
hand and seal, the date above written. " [To be officially sign-
ed and sealed by the justice.]
Form of a warrant for selling spirits within one mile of a worship-
ing assembly.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an
acting justice of the peace for said county, that one C D, late
of said county, yeoman, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year of
our Lord one thousand eight hundred and did then and
there sell and vend a species of spirits known by the name of
whiskey, to one I J, and divers other persons, during the contin-
uance of a congregation who had assembled together for the
DISTURBING PUBLIC WORSHIP.
317
purpose of worshiping Almighty God, and within one mile of
such worshiping, assembly, it not being the usual place of resi-
dcnce, or selling ardent spirits, or other intoxicating liquors, of or
by the said C D: These are therefore to command you to take
the body of the said C D, if to be found in your county, and him
forthwith bring before me, or some other j ustice of the peace for
said county, to answer the premises, and be dealt with as the law
directs. Given under my hand and seal, the date above writ-
ten." [To be signed, &c.]
Form of a justice's deputation of a man to suppress a disturb-
ancc. of a zvorshiping assembly.—"To all who shall see these pre-
sents:—Know ye, That I, G H, an acting justice of the peace
for county, Tennessee, by the power and authority in me
vested, do hereby appoint and deputise I J, a constable, to sup-
press a disturbance of a congregation assembled together for the
purpose of worshiping Almighty God, (there being no regular-
ly appointed officer present,) with all the powers and privileges
of any regularly appointed constable. Given under my hand
and seal^this day of in the year of our Lord one
thousand eight hundred and ." [To be signed, &c.]
Form of the defendant's recognizance for disturbing public worship,
"State of Tennessee,)
county,) SS'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally ap-
peared C D and E F, and I J, the security of said C D, and
L M, the security of said E F, before me, G H, an acting justice
ot the peace for said county, and acknowledged themselves to
stand justly indebted to the State of Tennessee, that is to say,
the said C D and the said E F in the sum of five hundred dob
lars each, and the said I J and L M, in the sum of two hund-
red and fifty dollars each, to be levied of their respective goods
and chattels, lands and tenements; but to be void if the said
C D and E F shall make their personal appearance before the
judge of our circuit court, at a court to be holden for said county,
at the court house in the town of in said county, on the
Monday of next, then and there to answer the
State of Tennessee upon a charge of having unlawfully disturbed
a congregation assembled for the purpose of worshiping Al-
318
CRIMINAL DIVISION.
mighty God; and abide such sentence as shah be pronounced in
the premises, and not depart said court until discharged by due
course of law. Acknowledged before me, the date above writ-
ten." [To be signed, &c.]
Form of a defendant's recognizance for selling spirits within a mile
of a worshiping assembly,
"State of Tennessee,)
county,) SS'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D and E F before me, G H, an acting justice of the
peace for said county, and acknowledged themselves to stand
justly indebted to the State of Tennessee, that is to say, the said
C D in the sum of five hundred dollars, and the said E F in
the sum of two hundred and fifty dollars, to be levied of their
respective goods and chattels, lands and tenements; but to be
void if the said C D shall make his personal appearance before
the judge of our circuit court, at a court to be holden for said
county, at the court house in the town of on the
Monday of next, then and there to answer the State of
Tennessee upon a charge of having sold spirits, known by the
name of whiskey, to I J, and others, within one mile of acongre-
gation assembled for the purpose of worshiping Almighty God,
and during the time such congregation was assembled for the
purpose aforesaid, the place where he sold not being his resi-
dence and usual place where he heretofore had sold spirits;
and abide such sentence as shall be pronounced in the premises,
and not depart said court until discharged by due course of law.
Acknowledged before me, the date above written." [To be
signed, &c.]
Note.—When a justice of- the peace shall see any of these
crimes committed or committing, and a sheriff, coroner or con-
stable shall be present, it shall be his duty to order such offend-
er into custody, and proceed to try him or them in the same
manner as if they had been brought before him upon a regular
warrant; or an officer upon his own view, without any warrant.
The mode of proceeding for the penalties will be pointed out
in the last division.
OBSTRUCTION OF PROCESS.
319
The next class of offences are those that affect the public jus-
ticc of the country.
OBSTRUCTION OF THE EXECUTION OF LAWFUL
PROCESS.
This offence at all times has been viewed as a crime of a
very high and presumptuous nature; hut more particularly when
it is in obstruction of an arrest on a criminal process. This
subject was spoken of when treating of affrays, &c. and need
not here he discussed at length.
This Obstruction of the execution of lawful process, mostly is
effected by persons who come in on part of the one against
whom the process has issued, and by force or menace obstruct
the odicer in the execution of his office. This offence is pun-
i-hable by fine and imprisonment,
Form of a warrant for obstructing justice.
'•State of Tennessee,) 55.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the }rear of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, laborer, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year aforesaid, did
then and there, by force and menaces of great bodily hurt, hin-
dor and obstruct the said A B, then and there being a regularly
appointed and duly qualified constable for said county, in the
due execution of a State's warrant upon one E F, who was char-
god therein with Lie crime of forgery, in falsely making and
forging a promissory note, purporting to be the promissory note
of one I J, for the sum of one hundred dollars: These are there-
fore to command you to take the body of the said C D, if to
be found in your county, and him forthwith bring before me, or
some other justice of the peace for said county, to answer the
promises, and be dealt with as the law directs. Given under
niy hand and seal, the date above written." [To be signed, &c.]
320
CRIMINAL DIVISION.
Form of the defendant's recognizance.
"State of Tennessee,)
county, ^ SS'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D and L M, before me, G H, an acting justice of
the peace for said county, and acknowledged themselves to
stand justly indebted to the State of Tennessee, that is to say,
the said C D in the sum of five hundred dollars, and the said
L M in the sum of two hundred and fifty dollars, to be levied
of their respective goods and chattels, lands and tenements;
but to be void if the said C D shall make his personal appear-
ance before the judge of our circuit court, at a court to be hold*
en for said county, at the court house in the town of in
said county, on the Monday of next, then and there
to answer the State of Tennessee upon a charge of having ob-
structed A B, a lawful officer, in the due execution of a State's
warrant upon one E F, for the crime of forgery; and abide such
sentence as shall be pronounced in the premises, and not depart
said court until discharged by due course of law. Acknow-
ledged before me, the date above written." [To be signed, &c.]
BREAKING JAIL.
Breach of prison for any offence, by the offender himself, or
even conspiring to break it, was felony at the common law; but
this severity was mitigated by the statute, 1 Edward II., which
enacted, "that no person shall have judgment of life, or men>
ber, tor breaking a prison, unless committed for some capital of-
fence." The prisoner is liable to be indicted, however, for a
misdemeanor, for any breach of prison he may make, unless he
is confined for a capital offence.
The legislature of our own State, in the year 1807, chapter
73, section 12, enacted, "that every person convicted of aiding
or assisting any prisoner or prisoners in breaking the prison in
which such prisoner or prisoners may be confined, either by giv-
ing to or supplying such prisoner or prisoners with any tool or
utensil, by which the said breach may be effected, or in any-
wise contribute to such breach, such person shall be fined by
BREACH OF PRISON.
3-21
the court in a sum not exceeding fifty dollars, and imprisoned
not exceeding three months," notwithstanding the said prisoner
may not be tried. The most advisable mode of proceeding for
a breach of prison, is by an indictment for a conspiracy against
the prisoner, his aiders and abetters, as prisons are most usually
broken by a combination between the prisoner and his friends
without. And where a conspiracy has been formed to break
open the jail, between the prisoner and one or more persons, the
offence is complete, though they should fail in their design.—
The offence is complete when the conspiracy is formed; and up-
on conviction for a conspiracy, there is no relaxation of the pun-
ishment, asjine and imprisonment may be inflicted at the dis-
cretion of the court. A conspiracy will be fully defined and ex-
plained in its proper place. I will here give the form of a war-
rant against the prisoner alone; against those aiders under the
said statute; and one for a conspiracy, against all.
Form of a laarrcml against the prisoner for breaking the jail.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) returns
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, laborer, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year of our
Lord one thousand eight hundred and did then and there
break open the common jail and prison of the county afore-
said, wherein he, the said C D, was lawfully confined, upon
a charge of an assault and battery upon the body of one
G II, and escaped from said prison: These are therefore to
command you to take the body of the said C D, if to be
found in your county, and him forthwith bring before me, or
some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given under my
hand and seal, the date above written." [To be signed, &c.j
m
CRIMINAL DIVISION.
Form of a warrant under the statute, against two, for assisting q
prisoner to break the jail,
"State of Tennessee,) ss.—To any lawful officer to execute and
county ,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, sheriff, this day of in the year of our Lord
onejdiousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D and one E F,
late of said county, yeomen, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year of our
Lord one thousand eight hundred and did then and there
unlawfully aid and assist one I J, who was lawfully confined
in the common jail and prison for the county aforesaid, upon a
charge of forgery, to break said jail and prison, so that the said
I J escaped therefrom: These are therefore to command you to
take the bodies of the said C D and E F, if to be found in your
county, and them forthwith bring before me, or some other jus-
tice of the peace for said county, to answer the premises, and
be dealt with as the law directs. Giv^n under my hand and
seal, the date above written." [To be signed, &c.]
Form of a warrant for a conspiracy between the prisoner and two
others without, to break the prison.
"State of Tennessee,) ss.—To any lawful officer to execute and
• county,5 return:
Whereas, complaint has been made on oath, by A B, of said
county, sheriff, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, one E F,and
one I J, late of said county, yeomen, with force and arms, at,
to wit, in the county aforesaid, on the day of in the
year of our Lord one thousand eight hundred and did
then and there combine, confederate and conspire together for
the purpose and design of breaking open the common jail and
prison for said county, with the intent of freeing said C D from
his confinement in said jail and prison, he, the said C D, being
lawfully confined in said jail upon a charge of forgery, to await
his trial for said offence, and in pursuance of the said design and
conspiracy, so formed as aforesaid, they did break said jail and
prison: These are therefore to command you to take the bodies
breach of prison.
323
of the said C D, E F and I J, if to be found in your county, and
them forthwith bring before me, or some other justice of the peace
for said county, to answer the premises, and be dealt with as the
law directs. Given under my hand and seal, the date above
written.1' [To be signed, &c.]
Form of a recognizance for a prisoner who has broken jail.
"State of Tennessee,)
county. £ SSm
Be it remembered, that on the day of in
the year of our Lord one thousand eight hundred and
personally appeared before me, G II, an acting justice of the
peace for said county, C D, and E F, and acknowledged
themselves to stand justly indebted to the state of Tennes-
see, that is to say, in the sum of five hundred dollars each, to
be levied of their respective goods and chattels, lands and ten-
ements; but to be void if the said C D shall make his person-
al appearance before the judge of our circuit court, at a court
to be hoi den for said county, at the court house in the town
of in said county, on the Monday of
next, then and there to answer the State of Tennessee upon a
charge of having broken open the common jail and prison of
said county, wherein the said C D was lawfully confined upon
a charge of an assault and battery upon the body of one G H,
and escaped therefrom; and abide such sentence as shall be
pronounced in the premises, and not depart said court until dis-
charged by due course of law. Acknowledged before me, the
date above written." [To be signed by the justice.]
Form of a recognizance against two aiders and abetters, under the
statute.
"State of Tennessee,)
county,\ ss'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared E F and I J, and L M and N O, before me, G H, an
acting justice of the peace for said county, and acknowledged
themselves to stand justly indebted to ihe State of Tennessee,
that is to say, the said E F and I J in the sum of five hundred
dollars each, and the said L M and N O in the sum of five
hundred dollars, jointly, to be levied of their respective goods
324
CRIMINAL DIVISION.
and chattels, lands and tenements; hut to be void if the said
E F and I J shall make their personal appearance before
the judge of our circuit court, at a court to be holden for said
county, at the court house in the tG\vn of on the
Monday of next, then and there to answer the State of
Tennessee upon a charge of unlawfully assisting one C D to
break the common jail and prison of said county, wherein tin.*
said C D was then and there lawfully confined upon a charge
of forgery, and by means of said assistance the said C D did e«.
cape therefrom; and abide such sentence as shall be pronounced
in the premises, and not depart said court until discharged by due
course of law. Acknowledged before me, the date above writ-
ten." [To be signed by the justice.]
Defendants' recognizance for a conspiracy to break the jaih
"State of Tennessee,)
county,} SS'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and per-
sonally appeared E F and I J, and L M and N O, before me,
G II, an acting justice of the peace for said county, and nc-
knowledged themselves to stand justly indebted to the State of
Tennessee, that is to say, the said E F and I J in the sum of
five hundred dollars each, and the said L M and N O in the
sum of five hundred dollars jointly, to be levied of their respec-
tive goods and chattels, lands and tenements; but to be void if
the said E F and I J shall make their personal appearance be-
fore the judge of our circuit court, at a court to be holden for said
county, at the court house in the town of on the
Monday of next, then and there to answer the State
of Tennessee upon a charge of having combined, confederated
and conspired together tor the purpose and design of breaking
open the common jail and prison for said county, with the intent
of freeing said C D from his confinement in said jail and prison,
he, the said C D, being lawfully confined in said jail upon a
charge of forgery, to await his trial for said offence, and in pur-
uancc of said design and conspiracy, so formed as aforesaid, did
break said jail and prison; and abide such sentence as shall
be pronounced in the premises, and not depart said court until
discharged by due course of law. Acknowledged before me,
the date above written." [To be signed, &c.]
TAKING A REWARD.
325
TAKING A REWARD.
Taking a reward under the pretence of helping the owner to his
stall n goods.—This offence, though highly penal by the statute of
1 Geo. I., chap. 11, is indictable at the common law, as being
contrary to good morals, and tending to frauds and thefts. This
species of villany was once carried on in England to a great ex-
cess, by the famous Jonathan Wild, and the well-trained corps
of thieves he had under his command, whose depredations, it is
said, produced the passage of the above recited act of parlia-
nient. This offence is punished in this our country as a misde-
meanor.
Form of a warrant for the above offence.
"State of Tennessee,) ss.—To any lawful officer to execute and
county, £ return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, laborer, with force and arms, at, to wit, in the coun-
ty aforesaid, on the day of in the year of our Lord
one thousand eight hundred and did then and there un-
lawfully receive and take twenty dollars from one E F, as a hire
and reward to help the said E F to a certain bay horse, of him,
the said E F, that was then and there missing, and which the
said C D averred was stolen, and that he could soon find him:
These are therefore to command you to take the body of the
said C D, if to be found in your county, and him forthwith bring
before me, or some justice of the peace for said county, to an-
swer the premises, and be dealt with as the law directs. Gi-
ven under my hand and seal, the date above written." [To
be signed, &c.j
326
CRIMINAL DIVISION.
COMMON BARRATRY.
Common Barratry is the offence of frequently exciting and
stirring up suits and quarrels between the good people of the
State, either at law or otherwise. Says Mr. Hawkins, "A bar-
rater is a common mover, exciter or maintainer of suits and quar-
rels, either in courts or in the country." Haw. P. C. 524. 8 Co. 80.
2 Croke, 527.
It is said not to he material whether the courts wherein such
suits are commenced, are courts of record, or not, or whether
such quarrels in the country relate to disputed titles of posses-
sions, or not, but that all kinds of disturbanc e of the peace, and
the spreading of false rumors and calumnies, whereby discord
and disquiet may grow among neighbors, are as proper instances
of barratry, as the taking or keeping the possession of lands in
controversy. Co. Litt. 368. 8 Co. 36. I Haw. 525.
. No one act will make a person a barrater; for every indict-
ment for such crime must charge the defendant with being com-
munis barrator, (a common barrater.)
Any person who is not a slave, whether male or female, mar-
ried or single, may be a barrater. It was once considered that
a married woman could not be a barratrix, but that notion has
been long since exploded, as being without reason. Haw. P.
C. 525.'
This offence is too frequently committed by the ministerial
officers of the law, as clerks, sheriffs, coroners and constables.—
Two motives may actuate these officers to barratry, both equal-
ly corrupt. The first is revenge, spite or ill-will to be gratified,
in suing an enemy—harrassed in his person and filched in his
purse. The second is filthy lucre, to make gain by fees of office.
The tricks and contrivances by which they stir up law suits,
have not escaped the notice of the observer of passing events.
The punishment of this offence in a common person, is fine
and imprisonment; but ought to be laid on with an unsparing
hand upon such criminal officers. But if the offender belongs
to the honorable profession of the law, a barrater who is thus
able as well as willing to do mischief, in addition to the punish-
ment inflicted on other offenders, ought also to be deprived of
his license, and be disabled from practising for the future.
BARRATRY.
327
Barratry is an offence more frequently committed, and more
seldom punished, than almost any offence known to the law.—
If a few instances of indictments for, and punishment of, this
offence, were to take place, they would operate as a repeal
of one half of the fire-side laws, and abate at least one half
of those zvould-bc-wise old women lawyers, who, through igno-
ranee and vice, scourge the neighborhood wherever they live,
and greatly curtail the employment of a set of beings who en-
joy the malicious pleasure of putting the whole neighborhood
together by the ears; there would be no necessity for those bu-
sy mechanics, rumor inventors, calumny makers, and slander
dealers.
Form of a warrant for barralry.
k'Slate of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, yeoman, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year afore-
said, then and there being a common barrater and disturber of
the peace, did incite and stir up one E F, wrongfully to insti-
tule an action of slander against one I J, and at divers other
times and days since the day last aforesaid, has endeavored to in-
cite and stir up divers other persons to institute various suits against
liim the said I J, to the disquiet of the good people of the
neighborhood, and particularly the said I J: These are there-
fore to command you to take the body of the said C D,
if to be found in your county, and him forthwith bring^efore me,
or some other justice of the peace for said county, to answer
the premises, and be dealt with as the law directs. Given un-
dor my hand and seal, the date above written." [To be sign-
oil, &c.]
Form of the defendant's recognizance.
'•Stale of Tennessee,)
county,) ss'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and before me,
328
CRIMINAL DIVISION.
~G H, an acting justice of the peace for said county, personillj
appeared C D, and E F and I J, and acknowledged themselves
to stand justly indebted to the State of Tennessee in the sum of
one thousand dollars jointly, to he levied of their respective goods
and chattels, lands and tenements; but to be void if the said C
D shall make his personal appearance before the judge of our
circuit court, at a court to be holden for said county, at the court
house in the town of on the Monday of ^ next,
then and there to answer the State of Tennessee upon a charge
of common barratry, in stirring up frequent quarrels and law
suits, particularly between one E F and one I J; and abide such
sentence as shall be pronounced in the premises, atid not depart
said court until discharged by due course of law. Acknowledg-
ed before me, the date above written." [To be signed. &c.J
SUING IN THE NAME OF A FICTITIOUS PLAIN-
TIFF. '
Of equal malignity and atrociousness with barratry, is the of-
fence of suing another in the name of a fictitious plaintiff, or
one not in being at all, or one that is wholly ignorant of the
suit. "
There are three species under this genus: 1. Suing another in
the name of a fictitious plaintiff. 2. Suing in the name of a man
or woman not in being. " 3. Suing in the name of a real plain-
tiff, without his knowledge or consent.
Under either head, it will be seen that the suit is instituted for
the purpose of oppression; and so jealous is the Iawofits purity,
that it will punish with great severity all those who shall attempt
to pervert her channels, and turn them into sluices of iniquity.
Form of a warrant.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county? "that one C D, late of said
county, planter, with force and arms, at, to wit, in the county
aforesaid, on the day of . in the year of our Lord
MAINTENANCE.
329
one thousand eight hundred and did then and there mali-
ciously institute an action upon the case, purporting to be in the
name of one P Q against the said A B, in the court of pleas and
quarter sessions for said county, laying the damage in said writ
[or summons, as the case may be,] to ten thousand dollars, when
in truth and in fact, there is no such person in being as P Q, to
harass and oppress the said A B: These are therefore to com-
mand you to take the body of the said C D, if to be found in
your county, and him forthwith bring before me, or some other
justice of the peace for said county, to answer the premises, and
he dealt with as the law directs. Given under my hand and
seal, the date above written. » [To be signed officially by the
justice.]
MAINTENANCE.
Maintenance is an offence that bears a near relation to the
former, "being an officious intermeddling in a suit that no way
belongs to one, by maintaining or assisting either party with mo-
nev, or other valuable thing, to prosecute or defend it."
This is a crying offence against public justice, as it keeps
alive strife and contention, and converts the remedial process of
the law into an engine of oppression.
There are two kinds of maintenance:
1. Ruralis, (in the country)—as Avhere one assists another in
his pretensions to certain lands, by taking or holding the posses-
sion of them for him, by force or subtilty; or where one stirs up
quarrels and suits in the country, in relation to matters in which
he is no way concerned: and this kind of maintenance is pun-
ishable at the suit of the State, upon presentment or indictment,
by fine and imprisoment. 1 Hawk. 535. Co.Litt. 36. 2 Inst. 213.
2. Curialis, (in a court of justice)—where one officiously in-
termeddles in a suit depending in any such court, which no way
belongs to him, by assisting either party with money, or other-
wise, in the prosecution or defence of any such suit. 1 Haw. 535.
2 Inst. 211, 563. 2 Rol. Ab. 1J5, 77.
There are many more persons guilty of the offence of mainte-
nance than any one not learned in the law would suppose. I
will give a few acts which amount to maintenance.
R 2
330
CRIMINAL DIVISION.
Mr. Hawkins says, "it seems clear, that whoever assists ano-
ther with money, to carry on his cause, as by retaining one to be
of counsel for, or otherwise hearing him out in the whole or part
of the expense of the suit, may be properly said to be guilty of
an act of maintenance." 1 Ilaw. P. C. 536. 2 Roll. Ab. 118. 0
Mod. 2. 2 Roll. 77.
Also, it is said, that not only he who lays out his money to as-
sist another in his cause, but also that he who by his friendship
or interest saves him that expense which he might otherwise be
put to, or best endeavors to do so, is also guilty- of maintenance;
as where one persuades or endeavors to persuade a man to be of
counsel for another gratis.
It is not maintenance to assist a poor relation to carry on or
defend a suit; nor is it maintenance for a person who has con-
veyed land with warranty, to aid and support his warrantee in
the defence of a suit brought to recover the land.
Form of a warrant for maintenance.
"State of Tennessee,) ss.—To any lawful officer to execute and
county.) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G II, an acting
justice of the peace for ^aid county, that one C D, late of said
county, planter, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year aforesaid, did
then and there unlawfully uphold and maintain one E F in the
prosecution of a certain action upon the case, in which he had
no interest pending, in the circuit court in the county- aforesaid,
wherein the said E F was plaintiff and one I J was defendant,
by supplying the said E F with money to carry on said suit:
These are therefore to command y-ou to take the body of the
said C D, if to be found in your county-, and him forthwith
bring before me, or some other justice of the peace for said
county, to answer the premises, and be dealt with as the law di-
rects. Given under my hand and seal, the date above written."
[To be signed, &c.]
This form can be vaiied to suit any- case of maintenance that
may occur, by putting down the facts as they exist, substantially.
The formal part of the warrant will be the same in every case.
CHAMPERTY.
331
Form of a defendants recognizance.
"State of Tennessee,)
county,)
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared CD, EF and I J, before me, G H, an acting justice
of the peace for said county, and acknowledged themselves to
stand justly indebted to the State of Tennessee, that is to say, the
said C D in the sum of five hundred dollars, and the said E F and
I J in the sum of two hundred and fifty dollars each, to be levied
of their respective goods and chattels, lands and tenements; but
to be void if the said C D shall make his personal appearance
before the judge of our circuit court, at a court to be holden for
said county, at the court house in the town of in said coun-
ty, on the Monday of next, then and there to an-
swer the State of Tennessee upon a charge of maintenance, in
supporting E F with money, to carry on an action upon the case,
in which the said C D had no interest whatever, pending in the
circuit court of said county, wherein the said E F was plaintiff,
and one I J was defendant, and abide such sentence as shall be
pronounced in the premises, and not depart said court until dis-
charged by due course of law. Acknowledged before me, the
date above written." [To be signed, &c,]
CHAMPERTY.
Campi partition (division of land) is a species of maintenance,
and punished in the same manner, being a bargain with a plain-
tiff" or defendant, campum partere, (to divide the land, or thing
sued for, between them, if they prevail at law.) 4 Bl. Com. 1T5.
Whereupon the champerter is to carry on the part) 's suit at his
own expense. It is the unlawful maintenance of a suit of another,
in consideration of some bargain to have part of the thing in dis-
pute,or some profit out of it, whether it be real, personal, or mixed.
Champerty being a species of maintenance, and so nearly
allied to what has been said in explaining maintenance in
general, little need be said here upon the subject. Its lead-
ing features are, a benefit to be had out of the thing, and the pay-
nient of the cost, or a part thereof. 2 Inst. 208. Co. Litt. 368.
332
CRIMINAL DIVISION.
Form of a warrant for Champerty.
"State of Tennessee.) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late
of said county, yeoman, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year
of our Lord one thousand eight hundred and did then
and there enter into an agreement, and make a contract with
one E F, to carry on a suit and action upon the case in trover,
for the recovery of seven negroes, which he, the said E F, had
instituted against the said A B, in the circuit court of the coun-
ty aforesaid, at the expense of the said C D, and in the event of
a recovery to divide the amount gained between them, the said
C D and E F: These are therefore to command you to take the
body of the said C D, if to be found in your county, and him
forthwith bring before me, or some other justice of the peace for
said county, to answer the premises, and be dealt with as the
law directs. Given under my hand and seal, the date above
written." [To be signed, &c.]
Form of the defendant''s recognizance.
"State of Tennessee,)
county, $ SS'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D, E F and I J, before me, G H, an acting justice
of the peace for said countyr, and acknowledged themselves to
stand justly indebted to the State of Tennessee, that is to say,
the said C D in the sum of five hundred dollars, and the said E F
and IJ in the sum of two hundred and fifty dollars each, to be lev-
ied of their respective goods and chattels, lands and tenements;
but to be void if the said C D shall make his personal appearance
before the judge of our circuit court, [or before the justices ot
our court of pleas and quarter sessions, as the case may be,] at
a court to be holden for said county, at the court house in the
town of on the Monday of next, then and
there to answer the State of Tennessee upon a charge of cham-
EMBRACERY. 333
perty, by entering into a contract and agreement with one E F
to support and carry on a suit and action upon the case in trover,
for the recovery of seven negroes, which he, the said E F, had
instituted in the circuit court of the county aforesaid, against the
said A B, at his own expense, and to divide the amount recov-
ered between the said E F and the said C D; and abide such
sentence as shall be pronounced in the premises, and not de-
part said court until discharged by due course of law. Ac-
knowledged before me, the date above written." [To be sign-
ed, &c.]
EMBRACERY.
Embracery is an attempt to influence a jury corruptly to one
side, by promises, persuasions, entreaties, money, entertainments
either of meat or drink, or the like. 4 Bl. Com. 140.
It follows from the above definition, that any attempt whatever
to corrupt or influence, or instruct a jury, or in any way to incline
them to be more favorable to the one side than to the other, by
money, promises, letters, threats, menaces, (by words or actions,)
persuasions, or the like, except by the strength of evidence and
the force of argument of counsel in open court, at the trial of
the cause, is a proper act of embracery, whether the jurors on
whom such an attempt is made give any verdict or not, or wheth-
er the verdict given be true or false. I Haw. P. C. 548. Co. Litt.
309. Moor. 815.
And the law so far abhors all corruption of this kind, that it pro-
hibits every thing which has the least tendency to it, whatsoever
specious pretence it may be covered with; and, therefore, it will
not suffer a stranger to the parties and the cause of action, so
much as to persuade a juror to appear and act according to his
conscience. Stat. 13 II. IY. Moor. 806. Cro. Eliz. 816. Co. Lit.
159, 369. 1 Haw. P. C. 548.
It is as criminal in a juror as in any other person to endeavor
to prevail with his companions to give a verdict for one side, by
anypractice whatever, except only by arguments from the evi-
dence which was produced in the, examination of the cause, and
exhortations from the general obligations of conscience to give a
334
criminal division.
true verdict. The other jurors are the proper witnesses against
such an offender. And there can be no doubt but all fraudulent
contrivances whatever to secure a verdict, are high offences of
this nature; as where persons by indirect means procure them-
selves, or others, to be taken as talismen, and sworn on the ju-
ry, in order to serve one side. I Haw. P. C. 540. L Saund. 310.
At an early period it was ruled, that giving money to a juror
after he had rendered his verdict, and that too without any pre-
vious contract in relation to it, is an offence savoring of embra-
eery; because if such practices were allowable, it would be easy
to evade the law, and render it odious, by giving jurors secret
intimations of an intended reward for their service, which might
be of as bad consequence as the giving money beforehand. This
principle has never been shaken, as far as I have been enabled
to learn. And keeping this principle in view, I would ask any
sound lawyer to show me in what this differs from our every
day's practice of calling away the jury from the box, after the
rendition of their verdict, to some grocery or tavern, in the view
and hearing of the court, to treat them. A reward in whiskey,
to some, is of much more importance than money, for they would
almost give their lives for a dram. It gives the rich an advan-
tageover the poor; the vicious an advantage over the virtuous,
who would not give an embrace, even indirectly. Why should
not he who treats jurors be indictable, as well as he who will
give you,money to buy your liquor after your verdict? There is
no reason to oppose it, as an adjudicated case, to my knowledge.
It is rendering cheap the right of trial by jury, bringing odium
on the tribunals of justice, against good morals, and therefore
indictable at the common law.
Form of a warrant for embracery.
"State of Tennessee,| ss.—To any lawful officer to execute and
county return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, planter, being a man of wealth and influence, with force
and arms, at, to wit, in the county aforesaid, on the
day of in the year aforesaid, did then and there endeavor
embracery.
335
to influence and persuade a jury, empannelled, sworn and char-
ged well and truly to try, and true deliverance make, between
the people of the State of Tennessee and E F, the prisoner
whom they had in charge for the crime of grand larceny, as the
said jury was retiring from the bar to their jury room, to consid-
er of their verdict, by saying to them, as they passed by the said
C D to their room aforesaid, "find for the defendant, and you
shall lose nothing," thereby committing the crime of embracery:
These are therefore to command you to take the body of the said
C D, if to be found in your county, and him forthwith bring be-
fore me, or some other justice of the peace for said county, to
answer the premises, and be dealt with as the law directs. Giv-
en under my hand and seal, the date above written." [To be
signed, Ac.]
Form of the defendants recognizance.
"State of Tennessee,)
county,3 ss'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and person-
ly appeared before me, G H, an acting justice of the peace for
said county, C D and I J, and acknowledged themselves to
stand justly indebted to the State of Tennessee in the sum of
five hundred dollars each, to be levied of their respective goods
and chattels, lands and tenements; but to be void if the said
C D shall make his personal appearance before the judge of
our circuit court, [or the justices of the court of pleas and quar-
ter sessions, as the case may be,] at a court to be holden for said
county, at the court house in the town of on the
Monday of next, then and there to answer the State of
Tennessee upon a charge of embracery, in endeavoring to per-
suade and influence the jury sworn, and who tried the case of
the State against E F, for grand larceny, as they were retiring
from the bar to the jury room, to consider their verdict in the
case aforesaid; and abide by such sentence as shall be pronoun-
ced in the premises, and not depart said court until discharged
by due course of law. Acknowledged before me, the date above
written." [To be signed, &c.]
Note.—These forms may answer as precedents for any kind
of embracery, by inserting the facts of each case according to
336
CRIMINAL DIVISION.
the truth. This offence sometimes happens by the speaking to a
jury when they are confined in their jury room, from the street,
with a view to influence them to one side, by certain words or
gestures. Every speaking to a juror who is on the trial of a
person for felony, is a great affront to public justice, and pun-
ishable accordingly.
EXTORTION.
Extortion is an abuse of public justice, which consists iu any
officer unlawfully taking, by colour of his office, from any man,
any money or other thing of value, that is not due to him, or
more than is due, or before it is due. This offence is punishable
by fine and imprisonment, and removal from office, when the of-
fender has been accustomed to extort for his fees. 4 Blackstone's
Com. 141.
This offence can be committed in three ways by an officer of
the law. 1. By taking any money or thing of value, from any
person, by color of his office, that is not due him; that is to say,
by claiming and receiving from any persons, as fees, what be is
not, and cannot be, entitled to, at any time, as fees. 2. Or more
than is due; that is to say, taking an additional sum to the fees
allowed by law. 3. Or before it is due; taking or exacting fees
before the service is rendered from a plaintiff or from a de-
fendant, at the rendition of the service, or at any time before
the fees shall legally fall due, will make extortion of the third
class.
It is a general maxim of the law, that all officers are bound to
know their fees, and that ignorance will not excuse them; but
this maxim, I imagine, as well as all general rules, must have
some exceptions; for if that were not the case, a man of the pu-
rest morals and most innocent heart would frequently be made
the odious spectacle of punishment, when his head alone was at
fault, his heart not concurring in the wrong. And it will not do
to bring in aid of the prosecution, another useful maxim, until
the culpable negligence of the officer is manifested—that is to
say, "That where knowledge is made a duty, ignorance is a
crime." All crime and wickedness flow from one of two sour-
ces, culpable negligence, or the wickedness of the heart. And
EXTORTION.
337
wherever extortion knowingly takes place, the offender ought to
be promptly and severely punished. And if men were punisha-
ble for mere error, I know of none who would suffer more fre-
quently than the judges and justices.
Form of a warrant for extortion, for taking more than the officer's
due.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, constable, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year aforesaid, did
then and there unlawfully, extorsively, and by color of his office
of constable, take and receive from said A B one dollar And fifty
cents, as fees of office, more than was then and there due to him,
in a case wherein E F was plaintiff and C D was defendant:
These are therefore to command you to take the body of the said
C D, if to be found in your county, and him forthwith bring be-
fore me, or some other justice of the peace for said county, to
answer the premises, and be dealt with as the law directs.—
Given under my hand and seal, the date above written." [To
be signed, &c.]
Form of the defendants recognizance,
"State of Tennessee,)
county,5 ss'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D and E F before me, G IT, an acting justice of the
peace for said county, and acknowledged themselves to stand
justly indebted to the State of Tennessee, in the sum of five
hundred dollars each, to be levied of their respective goods and
chattels, lands and tenements; but to be void if the said C D
shall make his personal appearance before the judge of our cir-
cuit court, at a court to be holden for said county, at the court
house in the town of in said county, on the
Monday of next, then and there to answer the State of
Tennessee upon a charge of extortion, for taking unlawfully, ex-
S 2
338
CRIMINAL DIVISION.
torsively, and by color of his office, one dollar and fifty cents
more, as fees in the case of one E F against A B, than was then
and there due him; and abide such sentence as shall be pro-
nounced in the premises, and not depart said court until dis-
charged by due course of law. Acknowledged before me, the
date above written." [To be signed, &c.]
BUYING COUNTY CLAIMS.
Nearly allied to extortion is our statutory offence of attorneys
general, clerks, deputy clerks, sheriffs, collectors, constables,
coroners, and county trustees, purchasing, trading or speculating
in county claims, either by themselves, agents or attorneys.
This species of traffic is prohibited by the act of the legisla-
ture of 1829, chapter 28, and any violation of the act, by the
officers aforesaid, is made an indictable offence in the circuit
or county courts of the county where the offence may be com-
mitted.
Form of a warrant for buying up county claims, by the sheriff.
"State of Tennessee,) ss.—To any lawful officer to execute and
county, y return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G II,
an acting justice of the peace for said county, that one C D,
late of said county, sheriff, with force and arms, at, to wit, in
the county aforesaid, on the day of in the year
aforesaid, did then and there purchase from F G, witness and
jury tickets, and witnesses' attendance, amounting in all to twen-
ty dollars, and which were chargeable upon the county treas-
ury of the county aforesaid: These are therefore to command you
to take the body of the said C D, if to be found in your county,
and him forthwith bring before me, or some other justice of the
peace for said county, to answer the premises, and be dealt
with as the law directs. Given under my hand and seal, the
date above written." [To be signed, &c.]
CONSPIRACY.
339
Form of the defendants recognizance.
"Slate of T ennessee,)
county,5 S&°
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D and E F, before me, G H, an acting justice of the
peace for said county, and acknowledged themselves to stand
justly indebted to the State of Tennessee in the sum of four
hundred dollars each, to be levied of their respective goods and
chattels, lands and tenements; but to be void if the said C D
shall make his personal appearance before the judge of our
circuit court, [or before the justices of our court of pleas and
quarter sessions, as the case may be,] at a court to be holden
for said county, at the court house in the town of on the
Monday of next, then and there to answer
the State of Tennessee upon a charge of having purchased from
one E F, jury tickets and witness attendance claims, chargeable
upon the office of county trustee of said county; and abide
by such sentence as shall be pronounced in the premises, and
not depart said court until discharged by due course of law.—
Acknowledged before me, the date above written." [To be
signed by the justice.]
CONSPIRACY.
Something has been said already of this offence, under the
penal code. One species of conspiracy is made punishable by
imprisonment in the public jail and penitentiary house, to wit,
to indict an innocent man for a crime, &c. But that is barely
entering upon the threshold of conspiracy at the common law.
It is a mode wisely invented to punish all unlawful combinations,
confederations a^d conspiracies formed among men to do or ef-
feet any unlawful purpose or end. The first is treated of un-
der the penal code. Secondly.—Two or more persons wrong-
fully to conspire together to injure or prejudice a third person,
or any body of men in any other manner. Thirdly.—Where
two or more shall conspire to commit any offence punishable by
law. Fourth.—To do any act with an intent to prevent .the
course of justice, and use its process for oppressive purposes.—
340
CRIMINAL DIVISION.
Fifth.—To effect a legal purpose with a base and corrupt in-
tent, or by improper means. Sixth.—To break down the char-
acter or lessen the influence of a candidate for office, so that
their friend may unworthily succeed. And to which may be
added, conspiracies, or confederations and combinations to do
any mean and low act, which has a tendency to weaken the
morals and lessen the dignity of man. The punishment is fine
and imprisonment.
The form of a warrant for a conspiracy against three, conspiring
to injure the credit and standing of a merchant.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath by A B$ of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that C D, E F and
H G, late of said county, merchants, being evil and wicked dispo-
sed persons, with force and arms, at, to wit, in the county afore-
said, on the day of in the year aforesaid, did then and
there unlawfully confederate, combine and conspire together
falsely and maliciously to injure the credit and standing of the
said A B, then and there being a merchant in good repute
amongst merchants and others, to have it understood and be-
lieved that he, the said A B, was insolvent, and unable to meet
all just demands against him, in pursuance of said conspiracy
did give out in speeches and dark sayings, "that the said A B
was in laboring circumstances, and would in a short time break,
and leave his creditors in the lurch:" These are therefore to com-
mand you to take the bodies of the said C D, E F and II G, if to
be found in your county, and them forthwith bring before me, or
some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given un-
der my hand and seal, the date above written." [To be sign-
ed, &c.J
Form of the defendants recognizance■.
"State of Tennessee,)
county,) ss'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and person-
treating at elections.
341
ally appeared CD, EF and H G, and I J and L M, before me,
G II, an acting justice of the peace for said county, and ac-
knowledged themselves to stand justly indebted to the State of
Tennessee in the sum of one thousand dollars jointly, to be levi-
ed of their respective goods and chattels, lands and tenements;
but to be void if the said C D, E F and H G shall make their
personal appearance before the honorable the judge of the cir-
cuit court, at a court to be holden for said county, at the court
house in the town of on the Monday of
next, then and there to answer the State of Tennessee upon a
charge of conspiracy, for endeavoring to injure the credit and
standing of one A B, a merchant, by having it understood and
believed that said A B was insolvent, and unable to meet all
the just demands against him, &c.; and abide by such sentence
as shall be pronounced in the premises, and not depart said
court until discharged by due course of law. Acknowledged
before me, the date above written. G H."
Note.—The above forms will be sufficient to instruct any one
how to form a warrant or recognizance for any other act of con-
spiracy that may be committed.
TREATING AT ELECTIONS.
This is an offence so nearly allied to the crime of bribery, that
I am induced to give it a place amongst those offences which
are considered as insults to public justice; especially as at the
common law, and by our statute, it is looked upon as an affront
to morality, an inj ury to the elective franchise, and breach of
the constitution. The light in which it was viewed by a major-
ity of the legislature, is well expressed in the caption of the act
of 1823, chapter 25. It is as follows: "Whereas, it is contrary
to the spirit of the constitution of this State, and beneath the
dignity of a free people, for their candidates for offices of honor
and trust to be giving money, meat or drink to the electors for
their friendship and support."
The better to suppress this great and growing evil, the legis-
lature has made it the duty of the judges of the circuit courts,
and of the solicitors in the county courts, to give the act in charge
to the grand jurors. From the excellent expressions in the cap-
342
CRIMINAL DIVISION.
tion to the act, and the solemn Injunction laid upon the judges
£ind solicitors, it would seem that an evil having a direct tenden-
cy to subvert the morals and liberties of the State was to bo
suppressed, and that the axe was laid to the root of the tree.
J3ut how false and fleeting are all things under the sun; for be-
fore the statute closes, it as good as repeals itself. "While it
raises the cup of expectancy, with one hand, to the parched
lips, it abruptly dashes it down to the ground with the other."
The first section of the act is in the words and figures follow-
ing: "Be it enacted, that hereafter if any person offering him-
self as a candidate for any office of honor, profit or trust, in this
State, or a candidate for Congress, or the general assembly, or
electors to vote for president and vice president of the United
States, shall, by himself, or agent, be guilty of treating the elec-
tors with spirituous liquous, directly or indirectly, for the purpose
of obtaining their votes thereby, such person, on conviction, by
presentment, as hereinafter mentioned, in the county or circuit
court of the county in which the offence may be committed,
shall be fined in the sum of one hundred dollars, for the use of
the county in which the offence may be committed; and it shall
be the duty of the respective judges and solicitors to give this
act in charge to their respective grand jurors, whose duty it
shall be to present all such offenders, where two or more of their
own body have a knowledge of the fact, and not otherwise."
The words italicised are those that I view as almost equiva-
lent to a repeal of the preceding part of the section. It is almost
irnpossible to get two persons on the same jury who have seen
such candidate treating at the same time, and it will not fulfil
this requirement of the statute, for one juror to see him treat
at one time, and another juror at another time. And by a
subsequent statute of limitations, all indictments must be found,
and presentments made, within a limited period, for misde-
meanors. These two obstacles are, in effect, a virtual repeal of
the statute.
The second section of the act is as follows: "Any person or
persons who shall make any bet or wager of money, or any olh-
er valuable thing, upon any election or elections, in this State,
shall be guilty of a misdemeanor, and, upon conviction thereof,
upon indictment or presentment, in the circuit court of the
SELLING UNSOUND PROVISIONS.
343
county in which said offence shall have been committed, shall
pay a fine for the use of the county as in case of betting on any
game or games of hazard, by the laws now in force and in use."
It will be observed by the reader, that treating by candidates
can only be reached by presentment, and therefore no form either
of warrant or recognizance need be given, as a justice of the
peace has no cognizance of such an offence, unless he should be
drawn on the grand jury. But I would give a form for each if
I entertained the least hope that the offence would be placed up-
on the footing of other crimes, at any subsequent time; but I
have no such hope.
The next class of offences are such as affect the public health,
police and economy of the State. The following are properly
of this class.
SELLING UNSOUND PROVISIONS.
"The selling unsound or unwholesome provisions, knowing
them to be so," such as the flesh of any animal that has died, or
where the animal is distempered and killed in the usual manner,
or where the animal was sound at the time of killing but became
spoiled and putrid afterwards; also, any unsound flour or meal;
unsound wines, spirits, or fermenting liquors of any kind; butter,
cheese, lard, or any other article of provision—are indictable
offences; being a crime of great enormity, striking directly at
the public health.
Three facts are necessary to make out this offence. 1. The
selling. 2. The unsoundness. 3. The seller's knowledge of
the unsoundness. The knowledge of the seller will, in most ca-
ses, depend upon circumstantial evidence, as hut few will ac-
knowledge the unsoundness.
Form of a warrant for selling unsound pork.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting jus-
344
criminal division.
tice of the peace for said county, that one C D, late of said coun-
ty, butcher, with force and arms, at, to wit, in the county afore-
said, on the day of in the year of our Lord one
thousand eight hundred and did then and there sell
pounds of unsound slaughtered pork, to the said A B, the same
being then and there putrid, and that fact known to the said C D:
These are therefore to command you to take the body of the
said C D, if to be found in your county, and him forthwith bring
before me, or some other justice of the peace for said county, to
answer the premises, and be dealt with as the law directs.—
Given under my hand and seal, the date above written." [To
be signed, &c. by the justice.]
Form of the defendant''s recognizance.
"State of Tennessee,")
county, 5 SS'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D and E F before me, G H, an acting justice of the
peace for said county, and acknowledged themselves to stand
justly indebted to the State of Tennessee, that is to say, the
said C D in the sum of five hundred dollars, and the said E F in
the sum of five hundred dollars, to he levied of their respective
goods and chattels, lands and tenements; but to be void if the said
C D shall make his personal appearance before the judge of our
circuit court at a court to he holden for said county, [or before
the justices of the court of picas and quarter sessions, as the
case may he,] at the court house in the town of on the
Monday of next, then and there to answer the State of
Tennessee upon a charge of having sold unsound slaughtered
pork to A B, knowing the same to be unsound; and abide such
sentence as shall be pronounced in the premises, and not de-
part said court until discharged by due course of law. Ac-
knowledged before me, the date above written." [To be sign-
ed, &c.]
Note.—All these misdemeanors are cognizable in the court
of pleas and quarter sessions, unless expressly provided for oth-
erwise by statute.
COMMON NUISANCES.
345
COMMON NUISANCES.
Common nuisances are a species of offences against the pub-
lie order and economical regimen of the State, which is defined
to be 4;the doing a thing to the annoyance of all the people, or
neglecting to do a tlr'ng the common good requires." 1. Ob-
structions and annoyances in public highways, bridges and rivers,
declared by act of assembly to be navigable rivers, which ren-
dcr them dangerous to pass. All changes or alterations of the
public roads laid out by the order and upon the authority of the
court of pleas and quarter sessions, are nuisances; all digging of
ditches, dikes, gullies, gutters, mill-races, or the like, in or across
such public roads, or the building fences, houses, barns, or the like,
in or across such road, orfhe felling trees in or across such roads, or
putting any kind of obstructions in such public roads, are nui-
sances; and the party creating, or erecting, or making them, is
liable to be proceeded against by presentment or indictment in
the county or circuit court of the county where the offence is
committed, and, upon conviction, fined, and, in aggravated cases,
imprisoned at the discretion of the court. All public roads are
placed under the care and direction of the county courts, by act
of assembly, as well as the ferries across the rivers, or other wa-
ters on said roads, and all public bridges by them ordered to be
erected; and no public road can be laid out, and which is to be
kept in repair, but by their order and authority, unless otherwise
directed by some special act of assembly. Act of 1804. ch. 1,
sec. 1.
All roads must be laid out by a jury of view, appointed by the
county court; nor can any road be altered or changed but upon
the report of a jury of view so appointed—which jury must con-
sist of a number of freeholders not more than twelve nor less
than five. All roads are to be laid out to the greatest advan-
tage to the inhabitants, and with the least injury to the inclosures.
Ibid, sec. 2.
And all juries of view shall be sworn by a justice of the peace,
sheriff, or deputy sheriff, before they enter upon the duty of lay-
ing out or altering a public road, in the form following, that is
to say: "You, and each of you, do solemnly swear, on the evan-
gelists of Almighty God, that you will lay out the road now di-
T 2
346
CRIMINAL DIVISION.
rected "by this order of the county court to he laid out, to the
greatest ease and convenience to the inhabitants, and with the
least prejudice to inclosures, without favor or affection, malice
or prejudice, to the best of your skill and knowledge—So help
you God." Ibid, sec. 3.
As to what roads shall be deemed public roads, see act of 1819,
ch. 26, and 1811, ch. 3. And as to the number of justices of the
peace who are competent to appoint a jury of view, or receive
and confirm a report, (for it requires the same number to do both
acts) see act of 1820, ch. 14.
By the act of 1804, ch. 1, sec. 8, the court of pleas and quar-
ter sessions are required to appoint overseers as often as may be
necessary, to all public roads, and every part and parcel there-
of. It is also declared by the said act, that all male persons,
whether white or black, that is to say, all white males between
the ages of eighteen and fifty years, and all slaves between the
ages of fifteen and fifty, are subject to work under such overseers
as the county court shall from time to time appoint, except judges
of the superior courts, governor, secretary of state, solicitors gen-
eral, justices of the peace, ministers of the gospel, keepers of
public ferries, and public millers of grist mills. Act of 1804, ch.
1, sec. 10.
It is made the duty of the respective overseers, at least three
days before the day or days upon which they design to work up-
on their roads, to give all white males, subject to work on said
roads, notice, and the master or mistress (or in their absence,
overseer) of any male slave, subject to work as aforesaid, notice
to send their slaves to work on said road, on a particular day, and
the kind of tools each shall bring with him, and the particular
point at which he designs beginning. 1827, ch. 128. All free
males of color are subject to work on roads. Any person appoint-
ed an overseer shall be so considered until he returns the order of
his appointment, although he holds said appointment over one
year; and he shall be subject to all the pains and penalties of oth-
er delinquent overseers.
The justices of the county court shall designate in the over-
seer's order of appointment, the particular road, and the part
thereof, for which he is appointed, and also the bounds in which
such persons reside, who shall be subject to work under his care
COMMON NUISANCES.
347
and management, so that no person shall be compelled to work
on more than one road. 1891, ch. 1, sec. 17.
If any overseer shall fail or refuse to perform any of the duties
devolving upon him bv this act, or shall excuse any one who may
fail to attend, or attending shall refuse to work as directed, or
fake any treat, hire or bribe, to excuse any such person, such over-
seer shall be liable to be indicted or presented by the grand ju-
ry of the county wherein such offence shall be committed, &c.—
1801, ch. 1, sec. 9.
All stage roads, and all others designated as of the first class by
the county court, shall be at least twenty feet wide, sixteen feet
of which in the centre shall be cleared of all rocks, stumps, roots
and runners, all ruts and gullies, and every other obstruction to
the passage of wagons, carriages, carts, carry-alls and the like,
find persons on horseback or foot, and shall be cause-wayed, bridg-
ed, mile-marked and indexed. 1804, ch. 1. 1821, ch. 6.
The second class of roads shall be twelve feet wide, cleared
of all obstructions, cause-wayed and bridged where necessary, so
as to afford loaded wagons travelling said roads a safe passage over
the same; and shall be indexed and mile-marked as other roads.
As to the third class or mill road, I shall take no notice of them
here, as they are a ridiculous pretence at best.
The roads are to be made and kept in repair, as required above,
where it is practicable to do so, and the overseer is liable to be
punished for a failure in making and keeping them in such re-
pair.
It shall be the duty of the grand juries elected, empanneled,
sworn and charged, for each county, at each term of the county
court, to present all overseers who have failed, refused, or neg-
lccted to perform the duties enjoined upon them by this act, as the
county courts have exclusive original jurisdiction of all delin-
quent overseers.
The duties of an overseer are, if properly performed, of great
importance to the public, and if neglected form immense annoy-
ances, which fall under the second branch of the definition of
public nuisances, "neglecting to do what his station and the pub-
lie good require."
No one is liable to be appointed overseer who is not subject to
348
CRIMINAL DIVISION.
work on public roads, nor can he be compellable to take the ap-
pointment for a longer period than one year in live.
The overseers of the several roads within this State are am
thorized to cut poles, and other necessary timber, to enable them
to comply with the duties enjoined on them in repairing and ma-
king bridges and causeways, without incurring any penalty there-
by.—1804, ch. l,sec. 16.
No person shall be appointed an overseer of a road unless he
reside within the bounds of the hands assigned to work on such
portion of the road.—1823, ch. 13.
The sheriff shall deliver an order of appointment to the over-
seer within twenty days after the same shall come into his hands,
or leave the order at the overseer's usual place of residence, and
shall make return to the next term of his county court how he
has executed the same, and the clerk shall record said return.—
And upon an indictment or presentment for a failure by an over-
seer, the sheriff's return shall be evidence of the service of the
order. And parol evidence may be received to prove the
service of the order, as the summoning hands to work on the
road, or performing any of the duties devolving on him as an over-
seer, and the service of the order, or any thing else, may be pro-
ved by parol.—1807, ch. 30.—1819, ch. 26, sec. 2.
In all cases where a jury of review shall have, by order of any
court in this State, marked and laid off any road through any per-
son's land, the owner whereof shall consider himself aggrieved
thereby, and shall have obtained, agreeably to the laws now in
force, a jury to assess the damages he may sustain thereby, it
shall not be lawful for such road to be established as a public high-
way until the damages so assessed shall be paid to the person so
injured, or so provided as to answer the payment thereof.
The clerks of the respective county courts are required to make
out all orders of the appointment of overseers, and all other or-
ders relative to public roads, within twenty days after the rise ol
their respective courts, and the sheriff shall, within twenty days
from the time said orders shall come into his hands, execute the
same, by delivering the same to such overseer; but in no case shall
a failure to perform those duties by the clerk and sheriff within
the prescribed times, exempt the overseer, if satisfactory parol
proof can be made that he received his appointment at any time
COMMON NUISANCES.
349
afterwards, or that he proceeded to the performance of the duties
of his appointment, and that he has failed to have his road in re-
pair.—1819, ch. 20, sec. 3.
The several county courts are required, upon application to
them made by an overseer of a road within this State, and on its
appearing to the satisfaction of the court that the articles here-
in after mentioned are necessary, to cause to he provided for the
use of such overseer, one stone hammer and crow bar, to be paid
for out of the county treasury, and said tools are to be kept ex-
clusively for the use of said road, and not to be applied to any oth-
or use whatever.—1807, ch. 59. And the said court shall also,
upon the application of an overseer, when it shall be made ap-
pear to them to be necessary, provide powder and boring in-
struments to enable them to keep their roads in proper repair,
and the overseer shall give bond and security to apply the materi-
als so furnished to no other purpose except the improvement of
his road.—1827, ch. 06.
All ferry keepers are required to keep the banks of the river in
good repair, where they shall keep ferries, on both sides of the
water courses, or where they keep a ferry on one side of a water
course, under the same penalties for neglect that are denounced
against overseers who fail to perform their duty.—1804, ch. 1,
sec. 20.
Private ferries are governed by the same law as public ferries,
in every respect.—1825, ch. 44.
Form of a zvarrant for building a fence across and in a public road
of the first class, making a nuisance.
"State of Tennessee, ) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G II, an acting
justice of the peace for said county, that one C I), late of said
county, yeoman, with force and arms, at to wit, in
the county aloresaid, on the day of in the year
aforesaid, and at divers days since that time, and before the
issuing of this warrant, did then and there create a com-
mon nuisance, and has continued the same, for and at the
times aforesaid, by erecting a large and high fence in and
350
CRIMINAL DIVISION.
across the public road leading from to ^
then and there being a road of the first class, to the great incon
venience and annoyance of the public. These are therefore
to command you to take the body of ihe said C D, if to be
found in your county, and him forthwith bring before me, or
some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given under
my hand and seal, the date above written." [To be signed, &c.]
The above form will suit as a directory for a warrant for any
kind of nuisance that may be created in or across a public road.
Form of a warrant for a nuisance in a public river, by the erection
of a mill dam across the same.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,£ return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one thou-
sand eight hundred and before me, G II, an acting justice of
the peace for said county, that one C D, late of said county,
planter, with force and arms, at, to wit,in the county aforesaid, on
the day of in the year aforesaid, and in divers day.i
since that time, and before the issuance of this warrant, did erect
and keep erected, a certain mill-dam upon and across river,
the same being then and there a public navigable river at the
place where said mill-dam was and is erected, to the great annoy-
ance of the public: These are therefore to command you to take
the body* of the said C D, if to be found in your county, and
him forthwith bring before me, or some other justice of the peace
for said county, to answer the premises, and be dealt with ai
-the law directs. Given under my hand and seal, the date above
written." [To be signed, &c.]
Form of a 'warrant against an overseer of a road.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G II, an
acting justice of the peace for said county7, that one C D, late
of said county, overseer of a portion of a public road, at, to wit,
in the county aforesaid, on the day of in the
common nuisances.
351
year of our Lord one thousand eight hundred and —he,
the said C D, then and there being an overseer of that portion
of the public road leading from to which lies be-
tween and regularly appointed by the court of
pleas and quarter sessions of said county to superintend the work-
ing upon and keeping in repair said road, within the bounds
aforesaid—did, on the day and year last aforesaid, and from that
time hitherto, suffer and permit said road to be and remain out
of repair up to the issuance of this warrant, by leaving large
and deep ruts and mud-holes, and the cause-ways broken up and
trees fallen in, into, upon and across said portion of the road
aforesaid, to the great annoyance of travellers with wagons, car-
riages, carts, &c. or upon horse-back, or on foot, passing said
road: These are therefore to command you to take the body
of the said C D, if to be found in your county, and him forth-
with bring before me, or some other justice of the peace for
said county, to answer the premises, and be dealt with as the law
directs. Given under my hand and seal, the date above writ-
ten." [To be signed, &c.]
Note.—The reader will observe that the words, "force and
arms," are omitted in the last form. The reason is, he is charg-
ed with an omission, and not an action; and, therefore, the force
and arms are not only unnecessary, but would be highly improp-
cr, where no force can by possibility be used.
Form, of a recognizance upon the warrant for an overseer of a road.
'•State of Tennessee,)
county,) ss'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally ap-
peared C D and E F, before me, G H, an acting justice o: the
peace for said county, and acknowledged themselves to stand
justly indebted to the State of Tennessee in the sum of two hund-
red and fifty dollars each, to be levied of their respective goods
and chattels, lands and tenements; but to be void if the said
C D shall make his personal appearance before the justices of
our court of pleas and quarter sessions, at a court to be hoiden
for said county, at the court house in the town of on the
Monday of next, then and there to answer the
State of Tennessee, as an overseer of a public road, upon a charge
352
criminal division.
of having permitted that portion of the public road leading from
to and between and and over which
the said C D was overseer, to be and remain out of repair, to
the great annoyance of the public; and abide such sentence as
shall be pronounced in the premises, and not depart said court
until discharged by due course of law. Acknowledged before
me, the date above written." [To be signed, &c.]
Form of a recognizance for a defendant, upon a charge of erecting
a fence across the public highway.
"State of Tennessee,)
county, $ ss'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D and E F, before me, G H, an acting justice of
the peace for said county, and acknowledged themselves to
stand justly indebted to the State of Tennessee in the sum of
two hundred and fifty dollars each, to be levied of their respec-
tive goods and chattels, lands and tenements; but to be void
if the said C D shall make his personal appearance before the
judge of our circuit court, at a court to be holden for said coun-
ty, at the court house in the town of on the Mon*
day of next, then and there to answer the State of Ten-
nessee upon a charge of having created a nuisance upon the
public road leading from to at by erecting a high
fence upon and across said road, and continuing the same there
for a long space of time; and abide such sentence as shah oe
pronounced in the premises, and not depart said court until dis-
charged by due course of law. Acknowledged before me, the
date above written." [To be signed, &c.]
Note.—The courts of pleas and quarter sessions have exclu-
sive original jurisdiction over delinquent overseers of the roads,
and concurrent jurisdiction over all nuisances created by other
persons. It is much to be lamented, that the courts of pleas and
quarter sessions do not use more energy in seeing that their road
laws are executed, and offenders punished for a breach of them.
All such trades or manufactories, carried on in cities, towns or
villages, or in the country near enough to thick and dense neigh-
borhoods, as to affect them, as from the stench or noxious vapors
they produce, as smelting houses, or the like, are common nui-
COMMON NUISANCES.
353
sances. But if these only affect one person, his remedy is by
action upon the case, for the recovery of damages, or bill in
equity to have the nuisance abated.
All disorderly taverns, coffee houses, groceries, ale houses, or
other houses erected or kept for the entertainment of travellers,
or others, for the selling and vending of meat, drink, or the like,
are public nuisances of highly injurious character. For at these
disorderly places, the loysr and licentious of both sexes resort, and
drink to drunkenness, and whoop, halloo and yell like infuriated
savages. And that is not all; no decent person can pass by such
places without being insulted by the grossest vulgarity. And not
only those who keep and bestow the means of human degrada-
tion and depravity,but all such persons as become habitual drunk-
ards, and thereby annoy the public, are common nuisances.
All bawdy houses, and their wretched inhabitants, and the
common resorters thereto, are common nuisances, as tending to
debase human nature, and to deprive man of the great moral
principle which mostly distinguishes him from brute beasts.
All houses established and kept for the purposes of gaming,
and hiding and secreting black-legs, and maintaining gamblers,
are common nuisances; for at these, not only the fortunes, mor-
als and health of men are dissipated, but they may be looked
upon as fruitful nurseries of pick-pockets, hustlers, thieves and
knaves.
I will observe, that any annoying, demoralising practice, car-
ricd on by any person, or number of persons, is a common
nuisance.
Form of a warrant in creating a nuisance by keeping a disorderly
tavern.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, grocer, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year afore-
said, did then and there erect and keep a disorderly, noisy, hal-
looing grocery, at and in which he sells and retails wines and
354
CRIMINAL DIVISION.
spirituous liquors to intemperate people, and suffers them to get
drunk, and fight and quarrel, curse, swear and blaspheme, and
profane the name of God, and to make a great noise, to the an-
noyance of all sober, moral and orderly people: These are
therefore to command you to take the body of the said C D,
if to he found in your county, and him forthwith bring before me,
or some justice of the peace for said county, to answer the pre-
mises, and be dealt with as the law directs. Given under my
hand and seal, the date above written." [To be signed, &c.]
Form of a warrant for keeping a bawdy-house,"
"State of Tennessee,) ss,—^To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, spinster, being a woman of bad fame and morals, with
force and arms, at, to wit, in the county aforesaid, on the
day of in the year of our Lord one thousand eight hund-
red and did erect and keep, and has ever since until the
issuance of this warrant kept, a bawdy house, for the base and
shameful sexual intercourse of men and women: These are
therefore to command you to take the body of the said C D, if to
he found in your county, and her forthwith bring before me, or
some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given under my
hand and seal, the date above written." [To be officially sign-
ed and sealed by the justice.]
Form of a warrant for keeping a house for the purpose of gaming.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, tavern-keeper, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year afore-
said, and at all times from the day last aforesaid, up to the issu-
ance of this warrant, did then and there keep, uphold and sup-
tippling houses.
355
port a house for the purpose of carrying on unlawful gaming,
and for the accommodation of all such persons as might re-
sort to his house aforesaid, for the purpose of gambling, to the
great annoyance of the good people of this State: These are
therefore to command you to take the body of the said C D,
if to be found in your county, and him forthwith bring before
me, or some other justice of the peace for said county, to answer
the premises, and be dealt with as the law directs. Given un-
der my hand and seal, the date above written." [To be sign-
ed, &c.J
Note.—These forms will enable any one to prepare a warrant
for any species of nuisance that can occur in society. The re-
cognizances will be of the same form of other recognizances,
only changing the substance to suit the warrant; for a recogni-
zance must follow the substance placed in the warrant.
TIPPLING HOUSES.
Nearly allied to nuisance, is the offence of keeping a tippling
house; which is defined to be, "the selling, vending, or retailing
without a license, wines or spirituous liquors in less quantity than
a quart, or the selling a quart, or more, if the same is to be drunk
on the premises where sold." The supreme court has decided,
that it does not require repeated acts of selling wines and
spirits to constitute the place a tippling house. One single act of
selling wines or spirits in a less quantity than a quart, whether
in a house or in the streets, in a field or in the woods, or wheth-
er the wines or spirits belong to the seller or not, will constitute
the act of keeping a tippling house—That being the legislative
definition of the act of selling wines and spirits by a less quan-
tity than a quart, or even by the quart, or larger quantity, if the
same is to be drunk on the premises, at one time, or frequent
tipplings. The reader will observe that the selling the wines or
spirits of another is as criminal as the selling of his own without
a license, as no man is permitted to say, I acted as the servant
of another when I committed a crime. This point has been so-
lemnly determined by the supreme court of our own State, and
is not now left to conjecture.
Merchants who have taken out a license to sell and retail
336
CRIMINAL DIVISION.
goods, wares and merchandize, are not authorized to sell and
retail wines and spirits under such license; but to do so, thejr
must procure a license for that particular purpose.
Form of a warrant for a tippling house.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, with force and arms, at, to wit, in the county afore-
said, on the day of in the year aforesaid, did
then and there keep a tippling house, by then and there selling
certain spirits called and known by the name of whiskey, in a
less huantity than a quart, that is to say, by the pint and half-
pint to one E F, and others: These are therefore to command
you to take the body of the said C D, if to be found in your
county, and him forthwith bring before me, or some other jus-
tice of the peace for said county, to answer the premises, and
be dealt with as the law directs. Given under my hand and
seal, the date above written." [To be signed, &c.]
Form of a recognizance for a defendant, for keeping a tippling house.
"State of Tennessee,)
county,) SS'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D and E F before me, G H, an acting justice of the
peace for said county, and acknowledged themselves to stand
justly indebted to the State of Tennessee in the sum of two liun-
dred and fitly dollars each, to be levied of their respective goods
and chattels, lands and tenements; but to be void if the said C D
shall make his personal appearance before the judge of our cir-
cuit court, at a court to be holden for said county, at the court
house in the town of on the Monday of
next, then and there to answer the State of Tennessee upon a
charge of keeping a tippling house, and abide such sentence as
shall be pronounced in the premises, and not depart said court
until discharged by due course of law. Acknowledged before
me, the date above written." [To be signed, &c.]
SELLING LIQI/OR TO SLAVES.
357
SELLING LIQUOR TO SLAVES.
Selling spirituous liquors to slaves, may be ranked amongst the
worst of nuisances. The legislature have, from time to time,
evinced a great desire to suppress this evil, and have passed sev-
eral statutes upon the subject. One statute declares, that if any
merchant, tavern-keeper, distiller, or other person, shall sell any
negro slave any spirituous liquors, without a permit in writing
from the master or mistress, shall be liable to presentment or in-
dictment in the county or circuit court, and, upon conviction,
shall be fined in a sum not less than five nor more than fifty dol-
lars. And another statute requires all vendors and retailers of
wines and spirits, who are compelled to apply to the county
court for leave to sell and retail, to take an oath that they will
not sell spirituous liquors to slaves, without a permit in writing
from the master or mistress of such slave. The reader will ob-
serve, that an overseer is not permitted to give such permit, as
he might combine with such slaves to drink to drunkenness at
the master's expense. After all these precautions have been ta-
ken, it would seem that an ofience, so mischievous in its conse-
quences, would have entirely ceased; but that is not the fact:
nor will it cease until the justices of the peace shall better an-
swer the true end of their appointment, by discharging the du-
ties which the law requires of them; and until honest, independ-
ent men shall be returned as grand jurors, who will draw up
such left-hand, back-door dealers with negroes, and make them
account to the public for their crimes.
Form of a warrant for selling spirits to slaves.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord One
thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, laborer, with force and arms, at, to wit, in the coun-
ty aforesaid, on the day of . in the year aforesaid,
did then and there sell spiiits commonly called whiskey, to one
Jack, a slave for life, the property of the said A B, without a
permit in writing from eitlier the master or mistress of said slave,
358
CramiNAL DIVISION.
authorizing the said C D to sell whiskey to the said slave: These
are therefore to command you to take the body of the said C D,
if to be found in your county, and him forthwith bring before me,
or some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given under my
hand and seal, the date above written." [To be signed, &c.j
EAVES-DROPPERS.
Eaves-droppers are such as listen under walls, windows, or the
eaves of houses, to harken after discourse, and thereupon frame
slanderous and mischievous tales, are common nuisances, and are
indictable or presentable by a grand jury.
Form of a warrant for Eaves-dropping.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, tinker, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year of our
Lord one thousand eight hundred and did then and there
listen under the windows, doors and eaves of the dwelling house
of the said A B, to harken after discourse: These are therefore
to command you to take the body of the said C D, if to he
found in your county, and him forthwith bring before me, or
some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given under my
hand and seal, the date above written." [To be signed, &c.]
ORDINARIES.
"Any person wishing to keep an ordinary, or house of public
entertainment, shall prefer his or her petition to the court of
pleas and quarter sessions of the county in which he or she re-
sides, praying a license therefor for one year," &c. I811,ch. 113.
"If any person who has obtained a license to keep an ordina-
ry, shall entertain slaves against the will of their owners, upon
ORDINARIES.
350
complaint being made to two justices of the peace, and proved
to their satisfaction, such justices shall suspend his license and
disable him from keeping such ordinary until he shall be heard
and restored by the county court," &c. 1779, ch. 10.
"The county court shall rate all ordinaries at the first court in
each year; and no keeper of an ordinary shall presume to take
a greater sum for liquor, meat, lodgings, and so forth, than allow-
ed by such rates; and it is made his duty to procure from the
clerk of such county, a fair copy of such rates, and post them
up in some conspicuous part of his ordinary." 1811, ch. 113.
Every person in this State applying for an ordinary license,
before he receives the same, shall take an oath in open court,
that he will not permit gaming of any kind to take place in his
house during the term of his license; and should the like be at-
tempted without his consent, that he will make immediate in for-
mation thereof to the proper authority. 1817, ch. 61.
Every person who shall obtain authority to get a license, shall,
before obtaining the same, pay to the clerk of the county where
such license is prayed for, five dollars, with the fee pointed out
for the clerk; and any person or persons who may keep a public
ordinary, or house of entertainment, or retail liquors by a small-
er measure than a quart, or even by the quart or more, if the
same is to be drunk on the premises where sold, without first
obtaining a license therefor, such person or persons shall be li-
able to an indictment or presentment for keeping a tippling house,
and upon conviction thereof shall be fined in a sum not less
than one nor over five dollars. 1815, ch. 115. Ibid, ch. 203,sec. 2.
It is made the duty of the several constables in this State,
from time to time, to give information of such ordinaries, or hou-
6cs of entertainment, set up for the public, or retailers of liquors,
as may be within the bounds of the captain's company for which
they are appointed, who have not received a license for such
ordinary, or house of entertainment, or retailing of liquors, to
some justice of the peace within his county, who, upon receiving
such information, shall immediately issue his warrant to appre-
hend the person or persons so offending, and upon the examina-
lion of the case before a justice of the peace, if their guilt is
rendered probable, the justice shall bind them with security for
360
CRIMINAL DIVISION.
their appearance to answer the charge at the next county or
circuit court. 1811, ch. 113, sec. 3.
Any constable failing to give the requisite information of un-
licensed ordinaries, or houses of entertainment, or of persons re-
tailing liquors by the small, without a license, shall he dismissed
by the county court; and such constable is also liable to be in-
dieted for such neglect of duty, where such unlicensed ordinary
or house of entertainment has been carried on for the space of
three months.
Persons may keep a house of private entertainment without
procuring a license therefor: but keeping a house of entertain-
ment does not authorize any one to sell or retail liquors.
Form of a warrant for keeping an ordinary,'or house of public en~
tertainment, without license.
"State of Tennessee.) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an act-
ing justice, of the peace for said county, that one C D, late
of said county, yeoman, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year
of our Lord one thousand eight hundred and did then and
there keep an ordinary, or house of public entertainment, for
the accommodation of all travellers and others that might please
to favor him with a call, without having obtained a license to
keep the same: These are therefore to command you to take the
body of the said C D, if to be found in your county, and him
forthwith bring before me, or some other justice of the peao§
for said county, to answer the premises, and be dealt with as the
law directs. Given under my hand and seal, the date above
written." [To be signed, &c.]
Form of a constable's notice to a justice of the peace, of the fact
* that an ordinary, or house of public entertainment, is kept within
the bounds of his captain's company, without a license.
"To G Jl, Esquire, an acting justice of the peace for county:
Sir: This is to inform you, that one C D, of said county, plan-
ter, has been for a long time past, and now is keeping an ordi-
nary, or house of public entertainment, within my bounds, for
ORDINARIES#
361
the accommodation of travellers, and all others who may choose
to give him a call, without having obtained a license therefor, as
required by law. Given under my hand, this day of
A. D. 18 E F,
Constable for said county.
Form of a warrant upon such information.
k'Sfate of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made on oath, by E F, an act-
ing constable of said county, appointed for the bounds of cap-
tain I J's company, this day of in the year of
our Lord one thousand eight hundred and before me,
G II, an acting justice of the peace for said county, that one C
P, late of said county, laborer, with force and arms, at, to wit,
in the county aforesaid, on the day of in the year
aforesaid, did then and there keep an ordinary, or house of pub-
lie entertainment, for the accommodation of ail travellc- . and
others that might please to favor him with a call, without hav-
ing obtained a license to keep the same: These are therefore to
command you to take the body of the said C D, if to be found
in your county, and him forthwith bring before me, or some oth-
er justice of the peace for said county, to answer the premises,
and be dealt with as the law directs. Given under my hand
and seal, the date above written. " [To be signed, &c.]
The form of a notice against a retailer of liquors without a
license, is as follows:
"To G H, Esquire, an acting justice of the peace for county:
Sir: This is to inform you, that one C D, late of said county,
laborer, has been for a long time past, and is now engaged in
selling and retailing liquors by the small, without having ob-
tained a license therefor, as required by law. Given under my
hand, this day of A. D. 18 ." E F,
Constable," fyc.
The preceding forms upon this subject will be a sufficient di-
rectory as to all other forms that may be required. The forms
of recognizances need not be given under this head, as they
will be that of all other recognizances—the substance following
the warrants.
V 2
302
CRIMINAL DIVISION.
GAMES OF HAZARD OR ADDRESS.
The offence of gaming is thus defined: "The betting, staking,
or striving for any money, or thing of value, upon any game of
hazard or address, or upon any horse race, (turf races excepted,)
or upon a foot or other kind of race." This pernicious prac-
tice grew up with the idleness and luxury of the old world, more
as a matter of amusement, at first, than a means of gaining by
another's loss. But luxury and idleness, and their constant com-
panion, vice, dissipated the estates of many, whose pride was
wont to strut with the gay and the great. And to enable them
to do so, they instituted the practice of betting and wagering up-
on the skill, luck and trickery in gaming, as only preferable to
theft and robbery.
Gambling is a cousin german of drunkenness, and, like it, de-
stroys not only the fortunes but the intellects of men. A crime
so mischievous ought, at all times, to have the particular notice
of all justices of the peace, sheriffs and constables, and all grand
jurors, that the views of the legislature, so frequently expressed,
might be carried into execution. It is useless for the legislature
to pass penal laws, for the suppression of vice and crime, unless
their efforts be seconded by the justices, judges, sheriffs and
constables, the proper conservators of the public peace, and the
guardians of the public morals of the country.
Form of a warrant for playing and betting on a game of cards.
"State of Tennessee,) ss.—To any lawful officer to execute and
county.) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D and one E
F, late of said county, laborers, with force and arms, at, to wit,
in the county aforesaid, on the day of in the year
aforesaid, did then and there stake, bet and strive against each
other, for the sum of five dollars each, upon a game of cards,
then and there played between the said C D and E F, common-
ly called seven up: These are therefore to command you to take
the bodies of the said C D and E F, if to be found-in your
county, and them forthwith bring before me, or some other
games of hazard or address.
363
justice of the peace for said county, to answer the preriiises,
and be dealt with as the law direets. Given under my hand
and seal, the date above written." [To be signed, &c.]
Form of a warrant for betting money on a game of cards played b&-
tiveen other persons.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that C D, late of said coun-
ty, tailor, and E F, lata of said county, house-joiner, with force
and arms, at, to wit, in the county aforesaid, on the day of
in the year aforesaid, did then and there wager, bet,
stake and strive for the sum of ten dollars, then and there bet
by each party, upon a game of cards then and there played by
and between I J and LM: These are therefore to command you
to take the bodies of the said C D and E F, if to be found in
your county, and them forthwith bring before me, or some other
justice of the peace for said county, to answer the premises, and
be dealt with as the law directs. Given under my hand and
seal, the date above written." [To be signed and sealed ofli-
cially by the justice.]
"All prosecutions under this or any other statute to suppress
and prevent unlawful gaming, mpst be commenced in six months
next after such offence may have been committed, and not af-
terwards." Act 1824, eh. 5, sec. 4.
"In every case which may arise under any of the laws of this
State, made for the prevention, discouraging and suppressing of
gaming, the court shall interpret the said laws as remedial, and
not as penal statutes; and no presentment or indictment shall be
quashed for want of form; and in all such cases it shall be suffi-
cient to charge the general name of the game at which the de-
fendant may have played, without setting forth and describing
with or against whom they may have bet or played; nor shall a
prosecutor be required upon any indictment for any of the of-
fences described in any statute to discourage or suppress ga-
ming." Ibid, sec. 5,
364
CRIMINAL DIVISION.
It is obvious from the sections of the act of 1824, that the le-
gislature were determined to grant every facility to the officers
of the government, in the power of the legislature, when taken
in connection with the act of 1829, chapter 25, to suppress the
crime of gaming.
The presentment or indictment, and consequently the warrant,
shall be good, if the general name of the game is described in
them, that is to say, a game of cards, without saying, zuhist, loo,
seven up, three up, or three the odd, or the like; a game of quoits,
a game of hustle-cap, a game of five-corns, or the like; a foot-
race, or horse-race for less than a mile, or for any distance unless
run on a regular course or track. The words, "turf races," as
used in our statute, must be so construed as to mean, races run
by horses, for a mile or more; on a regular course or track; for
such a thing as a "race turf" has never been seen in the Uni-
ted States, and but seldom in Europe. The curious are request-
ed to look into the English Racing Calendar for a true under-
standing of the word "Turf." It was inserted in our statute ra-
ther inadvertently.
And as the betting of money, or other valuable thing, is a crime
in every one who shall wager or bet upon any game of hazard
or address, or upon any other thing upon which betting is pro-
hibited, it is said by the legislature to be enough to charge the
defendant with having made the bet upon such game, in the
manner before described, without stating with whom the bet was
made.
The attorney for the government is required by his duty and
station to prefer a bill of indictment, by virtue of his office,
against all persons who have been gaming within his district, to
his knowledge, as one of the general conservators of the public
peace. And it is the bounden duty of the respective justices of
the peace in this State, to issue their warrants against all per-
sons who shall have been guilty of unlawful gaming in their
presence, or to their knowledge, within their respective counties,
fr, Vjing the offenders before them; and when they are arrested
brought before the justice who issued the warrant, it is his
duty to bind them over to court to answer the offence. This
duty is rendered much more easy to perform now than under the
old law, as no prosecutor is required, to be bound over as in
GAMES OF HAZARD OR ADDRESS.
3G5
other cases by the justice of the peace, or marked on the bill
of indictment by the solicitor general. And all faithful justices
of the peace, and solicitors general, will be sure to perform the
duties required of them.
Form of a warrant by a justice of the peace, against a person for
gaming within the justice's own knowledge.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,j return:
You are hereby commanded to" take C D, late of said coun-
ty, laborer, if to be found in your county, and him forthwith
bring before me, or some other justice of the peace for said
county, to answer the State of Tennessee upon a charge of un-
lawful gaming in my presence, and to be further dealt with as
the law directs. Given under my hand and seal, this
day of A. D. 18 ." [To be signed, &c.]
Form of the defendants recognizance.
"State of Tennessee,)
county,5 ss'
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and personal-
ly appeared before me, G H, an acting justice of the peace for
gaid county, C D and E F, and acknowledged themselves to
stand justly indebted to the State of Tennessee in the sum of
three hundred dollars each, to be levied of their respective goods
and chattels, lands and tenements; but to be void if the said
C D shall make his personal appearance before the judge of
our circuit court, at. a court to be holden for said county, at
the court house in the town of on the
Monday of next, then and there to answer the State of
Tennessee upon a charge of unlawful gaming at a game of
cards; and abide by such sentence as shall be pronounced
in the premises, and not depart said court until discharged
by due course of law. Acknowledged before me, the date above
written." [To be signed, &c.]
3GG
CRIMINAL DIVISION.
SELLING LOTTERY TICKETS.
Not very remotely related to the crime of gaming, is the sys-
tern and contrivance of lotteries, which, I am sorry to say, is
only partially restrained by the legislature, by the. first section
of the act of 1829, ch. 73. It is in these words: "That if any
person or persons, or corporate body, shall in future vend or
sell any ticket or tickets, in any lottery, the drawing of which is
not authorized by the laws of this State, or of the United States,
whether the same be authorized by the laws of any other State
or not, or whether it is a mere private lottery; in either case, the
person or persons, or body corporate, so offending, shall be liable
to presentment or indictment for each and every selling or vend-
ing, in the circuit court of the county where such ticket or tick-
ets were sold, and, upon conviction thereof, shall be fined in a
sum not less than one hundred nor more than five hundred dol-
lars, and shall pay the cost of the prosecution."
Form of a warrant for selling a lottery ticket in a lottery to be drawn
in the State of JVew York.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, laborer, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year aforesaid, did
then and there vend a lottery ticket in the consolidated lottery
of the State of New York, to one E F, for the sum of five dol-
lars, the said lottery not being authorized by the laws of the
United States or the State of Tennessee: These are therefore
to command you to take the body of the said C D, if to be found
in your county, and him forthwith bring before me, or some oth-
er justice of the peace for said county, to answer the premises,
and be dealt with as the law directs. Given under my hand
and seal, the date above written. [To be signed, &c.]
false imprisonment. gg,-,
Form of defendant's recognizance.
t^State of Tennessee,)
county, y SS'
Be it remembered, that on the day of in
the year of our Lord one thousand eight hundred and
personally appeared before me, G H, an acting justice of the
peace for said county, C D, and E F, and acknowledged
themselves to stand justly indebted to the state of Tennes-
see in the sum of two thousand dollars, jointly, to be levied of
their proper goods and chattels, lands and tenements; but to
he vcid if the said C D shall make his personal appearance
before the judge of our circuit court, at a court to be holden
for said county, at the court house in the town of
on the Monday of next, then and there to an-
swer the State of Tennessee upon a charge of having sold a
lottery ticket in the consolidated lottery of the State of New
York, the same not being authorized by the laws of the United
States or the State of Tennessee; and abide such sentence as
shall be pronounced in the premises, and not depart said court
until discharged by due course of law. Acknowledged before
me, the date above written." [To be signed by the justice.]
Note.—These forms can be easily modelled to suit any case of
unlawfully selling lottery tickets; and, therefore, further forms
would be superfluous.
FALSE IMPRISONMENT.
The crime of false imprisonment is thus defined: "Every con-
fincment of a person against his will, is an imprisonment, wheth-
er it be in the common prison, in the stocks, in a private house,
or forcibly detaining any where else: unlawful or false imprison-
ment, is such confinement or detention, without the authority of
the law." See 4 Bl. Comm. 218.
A man is not guilty of false imprisonment, who arrests one
upon a civil or criminal demand, by virtue of lawful process,
though the plaintiff should fail in his prosecution. But if he has
resorted to the process of the law as a mean of oppression, it is
a great affront to public justice; and such plaintiff (not the of-
fieer) is liable to be punished by presentment or indictment, in
3G8
CRIMINAL DIVISION.
the samfe manner for a false imprisonment as though no process
had intervened. If two or more he concerned in such pro-
ceeding, they ought to he indicted or presented for a conspi-
racy.
Form of a warrant for false imprisonment.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,£ return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G II, an acting
justice of the peace for said county, that one C G, late of said
county, planter, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year aforesaid, did
then and there without any lawful authority, arrest and take in-
to custody the said A B, and did then and there unlawfully and
falsely imprison the said A B, and did then and there keep and
detain the said A B in custody in prison for a long space of time,
to wit, for the space of three days: These are therefore to com-
mand you to take the body of the said C D, if to be found in
your county, and him forthwith bring before me, or some justice
of the peace for said county, to answer the premises, and be
dealt with as the law directs. Given under my hand and seal,
the date above written." [To be signed, &c.]
USURY.
"The legal rate of interest shall be hereafter, as heretofore,
six per centum, and at that rate for a longer or shorter period."
Act 1819, ch. 32, sec. 1.
"In any case, where a larger sum shall be reserved, directly
or indirectly, it shall be at the option of the defendant to plead
this act and thereby avoid the excess over said legal rate; and in
all cases, to save the expence of a suit in equity, where this
statute is violated, it shall be lawful for the defendant to file his
plea upon oath, and the plaintiff may reply upon oath, or the
oath of the original payee, and the matter shall be decided by a
jury." Ibid, sec. 2.
"In any case where more than legal interest shall be reserved
and taken, the party so reserving and taking shaH be liable to
USURY.
prosecution by presentment or indictment, and, on conviction
thereof, shall be fined in a sum to be assessed by the jury."—
Ibid, sec. 3.
No statute of the State is more shamefully violated than this
statute against usury, except the one prohibiting treating at
elections. There seems to be so many drunkards interested in
obtaining candidate's drams, that grand juries cannot be gotten
who will regard their oaths as much as their draughts; and,
therefore, those whiskey drenchers, who creep into office through
the filthy fumes of a still-house, instead of honest merit, must pass
unpunished. It is measurably the same way with the usurer.—
He, of course, must have money, and money is power, and gives
to its possessor a factitious importance, which,in many instances,
alarms justices, juries, and even the injured parties, from rising
up in defence of the violated laws. And some stupid gripers
think themselves justified in the taking of the unlawful inter-
est, upon the score of the impolicy of the law. The impolicy
of the law is no excuse for its violation. If the law is impoli-
tic, ask the legislature to repeal it, and do not attempt to be un-
derhanded nullifiers, by violating it at every turn.
Form of a zoarrant for Usury.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G II,
an acting justice of the peace for said county, that one C D,
late of said county, planter, with force and arms, at, to wit, in
the' county aforesaid, on the day of in the year
aforesaid, did then and there exact, take, reserve and receive
twelve dollars and a half from the said A B, for the loan of one
hundred dollars, from him the said C D, to him the said A B,
and the forbearance of the payment thereof for the period of
six months: These are therefore to command you to take the bo-
dy of the said C I), if to be found in your county, and him forth-
with bring before me, or some other justice of the peace for
said county, to answer the premises, and be dealt with as the
law directs. Given under my hand and seal, the date above
written." [To be signed, &c.]
W 2
370
CRIMINAL DIVISION.
OBSCENITY AND LEWDNESS.
All open lewdness, grossly scandalous, such as was that of
those persons who exposed themselves naked to the people, in a
balcony in Covent Garden, with most abominable circumstances.
1 Haw. P. C. 10. 2 Stra. Rep. 834.
For a man or woman to expose their organs of generation
intentionally to the public, is such an act of brutal baseness as
makes the act open and notorious lewdness. 1 Ver. 293. 4 Bl. C.
64. Stra. 776. 1 Ld. Ray. 451.
Filthy blackguards, who annoy the public with their obscene
words or songs, though they cannot, in general, be proceeded
against for lewdness, yet such are common nuisances, and pun-
ishable accordingly. But openly living in adultery, and passing
for man and wife, and frequently speaking of their sexual pow-
ers with each other, is open and notorious lewdness. The con-
stant practice of hanging about and frequenting bawdy houses,
will sustain an indictment for lewdness.
The printing, writing and publishing vulgar, obscene pieces,
having a tendency to destroy religion, morality and decency,
are indictable offences: as all profane scoffing at the holy scrip-
tures, or speaking with base obscenity in relation to the nativity
of Jesus Christ; all blasphemies against God; in fine, all low,
vulgar, obscene acts, which have a tendency to debase our na-
ture and make us fit companions of brute beasts, and destroy the
distinction between virtue and vice, are indictable offences: be-
cause they tend to subvert morality and decency, which are the
foundation of government, and punishable by temporal judges
with fine and imprisonment. Keb. 621. Hawk. P. C. 10. State
vs. Gresham, Sup. Court, Sparta.
All adultery and fornication, openly committed, are indictable
as lewdness. Ibid.
Form of a warrant for the intentional exposure by a man of his or-
gans of generation.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
OBSCENITY AND LEWDNESS.
371
ing justice of the peace for said county, that C D, late of said
county, laborer, having no regaad for morality or decency,
with force and arms, at, to wit, in the county aforesaid, on
the day of in the year aforesaid, did then
and there intentionally commit open and notorious lewdness, by
publicly exposing his organs of generation in the streets of the
town of to a number of persons then and there assembled:
These are therefore to command you to take the body of the
said C D, if to be found in your county, and him forthwith bring
before me, or some other justice of the peace for said county, to
answer the premises, and be dealt with as the law directs.—
Given under my hand and seal, the date above written." [To
be signed, &c. by the justice.]
Form of a warrant against a man and, woman for living openly
in adultery.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, labourer, not having any regard for morality or decen-
cy, and a certain E F, spinster, equally regardless of morality
and decency, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year aforesaid, then
and there lived in open adultery together, and for a long time
before that date so lived and cohabited together, in open adulte-
ry,*and so continue up to this date: These are therefore to
command you to take the bodies of the said C D and E F, if to
be found in your county, and them forthwith bring before me, or
some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given un-
der my hand and seal, the date above written." [To be sign-
ed, &c.]
Form of a warrant for writing an obscene and indecent libel on
the female character.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
372
CRIMINAL DIVISION.
thousand eight hundred and before me, G II, an acting jus*
lice of the peace for said county, that one C D, late of said
county, laborer, being a wicked, obscene and immoral person,
with force and arms, at, to wit, in the county aforesaid, on the
day of in the year aforesaid, did then and there
write and publish a certain indecent, obscene libel on the fe-
male character, entitled, "females exhibited in their true light,"
which said production is grossly scandalous and lewdr These
are therefore to command you to take the body of the said C
D, if to be found in your county, and him forthwith bring be-
fore me, or some other justice of the peace for said county, to
answer the premises, and be dealt with as the law directs.—
Given under my hand and seal, the date above written." [To
be signed, &c.j
It would be superfluous to write out a recognizance answer-
ing to the last three warrants, as the formal part will be like all
the other recognizances, and by pursuing the substance of the
charge in each warrant the recognizance must be right.
MALICIOUS MISCHIEF.
"If any person or persons shall wilfully or maliciously burn,
or cause to be burned, any fences, boards, timber, or any other
lumber, or throw down any fences, such person shall, on convic-
tion thereof, be fined not exceeding five hundred dollars, and
imprisoned not exceeding one year." Act 1803, ch. 9, sec. 1.
"If any person shall cut out the tongue, cut off an ear or tail,
or put out an eye of any beast, or otherwise dismember or dis-
figure such beast, maliciously or of purpose, or shall wilfully
and maliciously kill, destroy, or wound the beast of another,
such person shall be fined not exceeding two hundred dollars,
and be imprisoned not exceeding three months, and shall more-
over pay, to the owner of such beast, damages, to be recovered
by action of trespass." Ibid, sec. 2.
"Every person who shall wilfully and maliciously dig up, cut
down, or otherwise destroy any fruit-trees or corn, growing in
any field, garden or orchard, shall, on conviction thereof, be
fined not exceeding one hundred dollars, and imprisoned not ex-
ceeding three months, and moreover pay to the party aggrieved
damages to be recovered by an action of trespass." Ibid, sec. 3.
MALICIOUS MISCHIEF.
373
"All prosecutions for offences against this act, shall be by in-
dictment, and shall he commenced in the court of the county
wherein the offence shall have been committed." Iotd. sec. 4.
"If any person or persons shall wilfully and maliciously injure
and destroy any pipes erected for the purpose of conveying wa-
ter to any place in this State, or remove the earth so as to injure
the pipes, he, she or they, so offending, shall be liable to indict-
ment for a misdemeanor, in any of the courts in this State, and
if [the offence shall he committed by] a negro, he shall be liable to
be whipped by order of a justice of the peace, in any number
not exceeding thirty-nine lashes." Ibidf sec. 5.
In another part of this division, I have fully explained the doc-
trine of malicious mischief, and the legal meaning of the words
"wilful" and "malicious."
Form of a warrant for burning a fence.
"State of Tennessee,) ss.—To any lawful officer to execute and
county, 5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an
acting justice of the peace for said county, that one C D, late
of said county, laborer, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year
aforesaid, did then and there wilfully and maliciously set fire to
and burn the fence of the said A B, and then and there round
one of the fields of the said A B: These are therefore to com-
raand you to take the body of the said C D, if to be found in
your county, and him forthwith bring before me, or some oth-
er justice of the peace for said county, to answer the premises,
and be dealt with as the law directs. Given under my hand and
seal, the date above written." [To be signed, &c.]
Form of a warrant for cutting of the ear of a horse.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one thou-
sand eight hundred and before me, G H, an acting justice of
the peace for said county, that one C D, late of said county,
laborer, with force and arms, at, to wit,in the county aforesaid, on
374
CRIMINAL DIVISION.
the day of in the year aforesaid, did then and there
wilfully and maliciously cut off the ear of a certain bay horse,
the property of the said A B: These are therefore to command
you to take the body of the said C D, if to be found in your
county, and him forthwith bring before me, or some other jus-
tice of the peace for said county, to answer the premises, and
be dealt with as the law directs. Given under my hand and
seal, the date above written." [To be signed, &c.]
Form of a warrant for cutting down the apple trees of another.
"State of Tennessee, ) ss.—To any lawful officer to execute and
county, 5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G II, an acting
justice of the peace for said county, that one C D, late of said
county, laborer, with force and arms, at to wit, in
the county aforesaid, on the day of in the year
of our Lord one thousand eight hundred and did then
and there wilfully and maliciously cut down three apple trees of
the said A B, then and there standing in his orchard: These are
therefore to command you to take the body of the said C D, if
to be found in your county, and him forthwith bring before me,
or some other justice of the peace for said county, to answer
the premises, and be dealt with as the law directs. Given un-
der my hand and seal, the date above written." [To be signed
and sealed officially by the justice.]
Form of the defendant's recognizance.
"State of Tennessee,)
county,) SS'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally
appeared C D and E F, before me, G H, an acting justice of the
peace for said county, and acknowledged themselves to stand
justly indebted to the State of Tennessee, in the sum of five
hundred dollars each, to be levied of their respective goods and
chattels, lands and tenements; but to be void if the said C D
shall make his personal appearance before the justices of our
court of pleas and quarter sessions, at a court to be holden for
said county, at the court house in the town of on the
billiard tables.
375
Monday of next, then and there to answer the
State of Tennessee upon a charge of having wilfully and ma-
liciously cut down three apple trees, standing in the orchard of,
and being the property of one A B; and abide such sentence as
shall be pronounced in the premises, and not depart said court
until discharged by due course of law. Acknowledged before
me, the date above written." [To be signed, &c.]
Note.—All other recognizances under this head will he pre-
cisely the same of the last, except the charge must be made to
suit the warrant in eachjparticular case.
BILLIARD TABLES.
"If any person shall erect or keep erected any billiard table for
use, without first having obtained license therefor, in any county in
this State, he, she or they shall be liable to be presented by the
grand jury of either the county or circuit court, or be indicted
in either the county or circuit court of the county in which the
offence shall have been committed, and on conviction shall be
fined in a sum not less than five dollars nor more than fifty dol-
lars, and imprisoned not less than ten days nor longer than two
months." Act 1820, ch. 13, sec. 1.
No prosecutor is necessary under this act.
Form of a warrant for unlawfully keeping a billiard table.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,^ return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, laborer, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year aforesaid, did
then and there erect and keep a billiard table for use, without
having first obtained a license therefor: These are therefore to
command you to take the body of the said C D, if to be found
in your county, and him forthwith bring before me, or some oth-
er justice of the peace for said county, to answer the premises,
and be dealt with as the law directs. Given under my hand
and seal, the date above written." [To be signed, &c.J
376
CRIMINAL DIVISION.
Form of the defendant''s recognizance.
"State of Tennessee.)
county,) ss'
Be it remembered, that on the day of in the year
of our Lord one thousand eight hundred and personally ap-
peared C D and E F, before me, G II, an acting justice of the
peace for said county, and acknowledged themselves to stand
justly indebted to the State of Tennessee in the sum of five
hundred dollars each, "to be levied of their respective goods
and chattels, lands and tenements; but to be void if the said
C D shall make his personal appearance before the judge of
our circuit court, at a court to be holden for said county, at the
court house in the town of on the Monday of
next, then and there to answer the State of Tennessee
upon a charge of having erected and kept a billiard table for
use, without having obtained a license therefor; and abide such
sentence as shall be pronounced in the premises, and not depart
said court until discharged by due course of law. Acknow-
ledged before me, the date above written." [To be signed, &c.]
THEFT-BOTE.
This is where one of the party robbed, or of whom goods have
been stolen, not only knows the felon, but also takes his goods
again, or other amends, upon an agreement not to prosecute.—
This is commonly called compounding felony. See 4 Bl. Com.
133, 363.
This offence is one of frequent occurrence, and many times
looked upon by a kind of good, ignorant people, as no crime
at all. Thus the horse of A B is stolen by a thief, and A 11
sets out after his horse immediately, and soon overtakes the
thief, with the horse in his possession; the fellow tells some
plausable lie, or makes a poor mouth, and A B, thinking it a
pity to prosecute him for the crime, agrees to let him run at
large, without prosecution, upon his surrendering the horse, and
pay him something for trouble. This is is frequently done by
men who have passed for honest men; and they will tell you,
they are not obliged to prosecute them, &c. And some will
COMPOUNDING FELONY.
377
say, it is so much trouble to attend court, and get nothing for it,
and many other such like excuses for not prosecuting a thief; and
yet are such called mighty honest men. Such mighty honest men
ought to be severely punished for their honesty, or rather dis-
honesty.
Some might suppose this offence merged in the crime of re-
ceiving stolen goods, treated of in the penitentiary code; but it
is not so. It is true, the person receiving his own goods again
may be said to be "receiving stolen goods, knowing them to be
stolen;" yet it would be a harsh construction to say, that receiv-
ing a man's own goods, which had been stolen, would fulfil the
demand of the definition of receiving stolen goods: for the "re-
cciving stolen goods, knowing them to be stolen," must be done
feloniously. 1 Haw. P. C. 132. 1 Hale, G20. Rice vs. Wood, Se-
lect Trials, vol. 2, 195.
Form of a warrant for receiving stolen goods.
''State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G II, an acting
justice of the peace for said county, that one C D, late of said
county, planter, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year aforesaid, did
then and there receive a certain bay horse from a certain E F,
who had before that time stolen the said horse of and from the
said C D, and that fact being known to the said C D, upon an
agreement not to prosecute the said E F for the crime of
stealing said horse: These are therefore to command you to
take the said C D, if to be found in your county, and him forth-
with bring before me, or some other justice of the peace for
said county, to answer the premises, and be dealt with as the
law directs. Given under my hand and seal, the date above
written." [To be signed, &c.]
Form of the defendant's recognizance.
"State of Tennessee,)
county,)
Be it remembered, that on the day of • in the year
of our Lord one thousand eight hundred and personally
^ X2
3?8
CRIMINAL DIVISION.
appeared C D, E F and I J, before me, G II, an acting justice
of the peace for said county, and acknowledged themselves
to stand justly indebted to the State of Tennessee, that is to
say, the said C D in the sum of five hundred dollars, and the
said E F and I J in the sum of two hundred and fifty dollars
each, to be levied of their respective goods and chattels, lands
and tenements; but to be void if the said C D shall make his
personal appearance before the judge of our circuit court, at a
court to be holden for said county, at the court house in the
town of on the Monday of next, then and
there to answer the State of Tennessee upon a charge of theft-
bote, in receiving from E F his bay horse, which had previously
been stolemby the said E F, upon an agreement not to prose-
cute; and to abide such sentence as shall then and there be pro-
nounced in the premises, and not depart said court until dis-
charged by due course of law. Acknowledged before me, the
date above written.'" [To be signed, &c.]
OFFICERS NOT TO BID AT A SALE.
No sheriff, or ministerial officer, is by law permitted to bid
at the sale of any property levied upon by such officer, but are
most positively prohibited by several statutes, which enact, that
"If any sheriff, coroner or constable shall bid or purchase at
their own sales, either by themselves, or any other person or
persons for them, or their benefit, all such sales shall be void,
and all persons concerned in any such sales (as officer and agent)
shall be liable to an indictment for a misdemeanor." Act 1805,
eh. 31, sec. 2.
"No sheriff, deputy sheriff, constable or coroner shall purchase
property, either directly or indirectly, by himself, or themselves,
or by any other person or persons whatsoever, either at his own
sale, or at the sale of his principal, or his or their deputy, or de-
puties, or any of them, whether the said sale be for taxes or for
any other other kind of execution or decree whatsoever; and if
such sheriff, deputy sheriff, constable or coroner shall presume to
purchase property at any sale, contrary to the true intent and
meaning of this act, whether it be done by him or themselves,
or either of them, or any other person or persons whatsoever.
OFFIOF/IIS NOT TO F-IP AT SATYES.
for his or their use, or in partnership, such sheriff, deputy sheriff,
constable or coroner, as the case may be, shall be liable to be
indicted for such offence, in any county or circuit court of the
county where the offence shall be committed, and, upon convic-
tion, shall be removed from office by the county court." Act of
1813, ch. 103, sec. 1.
Foom of a warrant for the above offence.
"State of Tennessee,) ss.—To any lawful officer to execute and
county, 5 return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G II, an acting
justice of the peace for said county, that one C D, late of said
county, sheriff, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year aforesaid, did
then and there, so being sheriff as aforesaid, bid for property
levied upon by execution, and then exposed to sale by S F, his
deputy, that is to say, one negro boy by the name of Henry:
These are therefore to command you to take the body of the
said C D, if to be found in your county, and him forthwith bring
before me, or some other justice of the peace for said county,
to answer the premises, and be dealt with as the law directs.
Given under my hand and seal, the date above written." [To
be signed, &c.]
Form of a warrant for the above offence, against a deputy.
"State of Tennessee,) ss.—To any lawful officer to execute and
county, 5 return:
Whereas, complaint has been made upon oath, by A B. of
said county, this day of in the year of our Lord one thou-
sand eight hundred and before me, G II, an acting justice of
the peace for said county, that one C D,late of said county, depu*
ty sheriff, with force and arms, at, to wit, in the county aforesaid,
on the day of in the year aforesaid, did then and there hid
the sum of twenty dollars for a certain bay horse, then and there
offered for sale by E F, principal sheriff of the county aforesaid,
under an execution at the instance of I J against the said A B,
he, the said G D, then and there being deputy sheriff, under the
said E F, in the county aforesaid: These are therefore to com-
tnand you to take the boil) of the said C D, if to be found in
380
CRIMINAL DIVISION.
your county, and him forthwith bring before me, or some other
justice of the peace for said county, to answer the premises,
and he dealt with as the law directs. Given under my hand
and seal, the date above written." [To be signed, &c.]
WRONGFUL POSSESSION.
"Where any person has been, or hereafter may be, dispossessed
of any premises, by virtue of the laws of this State, for a forci-
ble entry and detainer, or detainer, and shall again illegally pos-
sess him, her or themselves of the premises from which he, she
or they were thus dispossessed, such person, so offending, shall
be deemed guilty of a misdemeanor, and, on presentment or in-
dictment in the circuit court of the county where such offence
shall have been committed, shall be subject to a fine not less
than five nor more than fifty dollars, and shall be imprisoned for
a term not less than two days, nor more than ten days; and the
only evidence which shall be required or admitted by the court,
upon the trial of such cause, shall be, that the defendant had
went again into the possession of the premises that he was turn-
ed out of by the proceedings in a forcible entry and detainer, or
detainer." Act 1825, ch. G3, sec.*2.
Form oj a warrant for the above offence.
"State of Tennessee,) ss.—To any lawful officer to execute and
county, £ return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, laborer, with force and arms, at, to wit, in the coun-
ty aforesaid, on the day of in the year aforesaid,
did then and there re-enter the premises of the said C D, and
now detains the same, from which he had been previously expel-
led by the proceedings in a forcible entry and detainer by the
said A B, against the said C D: These are therefore to command
you to take the body of the said C I), if to be found in your
coun ty, and him forthwith bring before me, or some other jus-
tice of the peace for said county, to answer the premises, and
be dealt with as the law directs. Given under my hand and
seal the date above written." [To be signed, &c.j
FALSE BRANDS ON FLOUR.
381
FALSE BRANDS ON FLOUR.
f And any person who shall impress or brand the word "super-
fine," "fine," or "middling," or the semblance thereof, upon any
barrel or cask of flour, after the same has been removed from
the mill, or place where it was manufactured or bolted, or shall,
at any time or place, impress or brand on any barrel or cask
of flour, the name of any other person than the proper name of
the miller or bolter by whom the same was prepared or bolted,
such person or persons shall, for every such offence, be liable to
an indictment in any of the circuit courts of this State, and
shall, upon conviction, be fined fifty dollars, and be imprisoned,
at the discretion of the court, not less than three nor more than
twenty days." Act 1819, ch. 61, sec. 3.
Form of a warrant for branding a wrong miller's name on a bar-
rel of four.
"State of Tennessee,) ss.—To any lawful officer to execute and
county ,5 return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G II, an acting
justice of the peace for said county, that one C D, late of said
county, with force and arms, at, to wit, in the county afore-
said, on the day of in the year aforesaid, did then
and there impress and brand the name of E F, as being the
manufacturer of a barrel of flour, on the head thereof, when I J
was the manufacturer, and that fact then and there well known to
him: These are therefore to command you to take the body of
the said C D, if to be found in your county, and him forthwith
bring before me, or some other justice of the peace for said coun-
ty, to answer the premises, and be dealt with as the law directs.
Given under my hand and seal, the date above written." [To
be signed, &c.]
criminal division.
FIRE HUNTING.
"If any person or persons shall be discovered hunting in the
woods with a gun, in the night time, by fire light, such person or
persons, so offending, shall, upon conviction by indictment or pre-
scntment in any court of record in the State, be fined, by such
court, fifty dollars, to be applied to the use of the county wherein
the offence was committed; and if the person so fined shall fail or
refuse to pay such fine, the person so failing or refusing shall n-
ceive thirty-nine lashes on his bare back, by order of such court, to be
well laid on, in open view, by the sheriff of the county, and shall stand
committed until all costs accruing upon the presentment be
paid." Act 1784, ch. 33.
Note.—Is it not astonishing that such a statute should be
permitted to disgrace our statute books. Here you will observe,
that for fire hunting the rich man is made to pay the paltry sum
of fifty dollars, whereas the poor man, for the same offence, h
to be publicly whipped like a dog; not so much for the act of
fire hunting, as not being able to pay fifty dollars for it. This
is equal rights, is it? What a scandal! Justice, reason,liber
ty and humanity cry, repeal it.
Form of a warrant for fire hunting in the night.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, laborer, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year afore-
said, did then and there hunt with a loaded gun, in the night-
time, by fire light,in the woods: These are therefore to com
mand you to take the body of the said C D, if to be found
in your county, and him forthwith bring before me, or sofme other
justice of the peace for said county, to answer the premises, and
be dealt with as the law directs. Given under my hand and
seal, the date above written." [To be signed, &c.]
CORRUPTING SPRINGS, WELLS, &C. 383
CORRUPTING SPRINGS, WELLS, &c.
"That it shall not be lawful for any person hereafter to place,
or cause to be placed o"r thrown into any spring, well, or running
stream of water, the dead body of a horse, cow, or any other ani-
mal, and any such person so offending shall be subject to be indict-
cd or presented by a grand jury, as guilty of an offence against the
laws of this State, and, on conviction thereof, Shall be fined in a
sum not exceeding fifty dollars, to be recovered before the coun-
ty or circuit court, together with all costs that may accrue there-
one' Act 1826, ch. 37.
Form of the. warrant for the above offence.
"State of Tennessee,! ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G II, an acting
justice of the peace for said county, that one C D, late of said
county, yeoman, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year of our Lord one
thousand eight hundred did then and there throw the
dead body of a dog into the well of water of the said A B, it
being the well out of which the said A B used water: These
are therefore to command you to take the body of the said C I),
if to be found in your county, and him forthwith bring before
me, or some other justice of the peace for said county, to answer
the premises, and be dealt with as the law directs. Given un-
der my hand and seal, the date above written." [To be sign-
ed, &c.]
PERSONATING AN AGENT.
"If any person shall pretend to be the agent of any school
commissioners, who is not, and in such pretended character, re-
ceive rents from persons residing on school lands, or any com-
pensation by way of rent, it shall be considered a misdemeanor,
and such person, if convicted by presentment or indictment,
shall be fined by the court at its discretion." Act 1827, ch. 77.
381
CRIMINAL DIVISION.
Form of a warrant for personating, tyc.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, yeoman, with force and arms, at, to 'wit, in the coun-
ty aforesaid, on the day of in the year aforesaid,
did then and there pretend to be the agent of the school com-
missioners for when, in truth, he was no such agent,
and in that character did apply to one E F for the rent due for
a certain portion of the school section in township, in said
county, and did then and there, in his false character of agent,
receive of and from the said E F, the sum of fifty dollars, for
rent due the said school commissioners, when he was not au-
thorizedto do so: These are therefore to command you to take the
body of the said C D, if to be found in your county, and him
forthwith bring before me, or some other justice of the peace
for said county, to answer the premises, and be dealt with as the
law directs. Given under my hand and seal, the date above
written." [To be signed, &c.]
JUSTICES OF THE PEACE AND CONSTABLES.
"That if any constable shall go about the neighborhood in
which he lives, or any where else in the county in which he lives,
and endeavor, by any means, to stir up the people to commence
suits against each other, by telling of falsehoods, or in any mail-
ner propagating reports that may have a tendency to instigate
the good people to sue and vex each other, every constable so
offending shall be liable to be indicted, for every such offence, for
a misdemeanor in office, and, on conviction, fined in a sum not
less than five nor more than fifty dollars." Act 1805, ch. 66, sec. 3.
"That it shall not be lawful for any justice of the peace to is-
sue a warrant in any civil suit, unless on the personal applica-
tion of the person wishing it to be done, or by his or her dircc-
tion in writing, which direction the justice shall preserve; and if
any person shall forge an order for the issuance of a warrant, he
JUSTICES Of THE PEACE AND CONSTABLE
387
shall be liable to be indicted for a misdemeanor, and fined lr/^-Cr
gum of not less than five nor more than fifty dollars." Ibid, sec. 5.
The proper construction to be put upon this statute is this:
That if any constable shall be guilty of any words or actions
tending to excite the people to law suits and strife, by falsehoods
or other reports, he shall be liable to be indicted and presented
for every such offence. And where a statute declares it shall
not be lawful for any person entrusted with the administration of
justice, either in a judicial or ministerial point of view, to do
any particular act, the thing done by them is unlawful and void;
for if it be unlawful to issue a warrant, or do any other act, it
is as though it was done by a private person; and the person so
doing the forbidden act, is liable to be presented or indicted for
such unlawful act.
I said, in the first division of this work, that this act of the
magistrate was unlawful, and that he was liable to he indicted
for it; but I have thought it prudent, at this place, not only to
declare the act unlawful, and the person doing it indictable, but
also to declare the thing resulting from the act (as the warrant
in this case) unlawful also, and void. In the correctness of this
construction I am greatly fortified by the able opinions of the
supreme court, in the cases of Wallen vs. M'Henry, and Hopkins
vs. Waterhouse, and Hopkins vs. Godbehire, reported in 2 Yer-
ger's Reports; and when we look at the mischief designed to be
prevented, no other construction can well be put upon the fifth
section of the act of 1805, chapter 66. It was made to prevent
barratry and maintenance, and strife stirred up by the instru-
mentality of a third person.
Form of a warrant against a constable for stirring up law suits.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late
of said county, constable, with force and arms, at, to wit, in the
county aforesaid, on the day of in the year
of our Lord one thousand eight hundred and did then and
there endeavor to stir up one E F to sue one I J, of said county
Y 2
384
chimin xr, division.
«iid others of said county to suit and strife: These are therefore
to command you to take the body of the said C D, if to be
found in your county, and him forthwith bring before me, or
some other justice of the peace for said county, to answer the
premises, and be dealt with as the law directs. Given under my
hand and seal, the date above written." [To be signed, &c.]
Form of a warrant against a justice of the peace, fur issuing a warrant
without a personal request, or an order in writing, from the plain-
t'ff-
"State of Tennessee,) ss.—To any lawful officer to execute and
county,4 return:
Whereas, complaint has been made upon oath, by A B, of said
county, this day of in the year of our Lord
one thousand eight hundred and before me, G H, an act-
ing justice of the peace for said county, that one C D, late of
said county, an acting justice of the peace for said county, with
force and arms, at, to wit, in the county aforesaid, on the
day of in the year aforesaid, did then and there
unlawfully issue a warrant, in a certain case wherein E F was
made plaintiff, and I J was made defendant, without the per-
sonal application of, or an order in writing from the said plain-
tiff: These are therefore to command you to take the body of the
said CD, if (o be found in your county, and him forthwith bring
before me, or seme other justice of the peace for said county,
to answer the premises, and be dealt with as the law directs.—
Given under my hand and seal, the date above written." [To
be officially signed and sealed by the justice.]
CLE1 IKS TO ACCOUNT.
The clerks of the county courts, circuit courts, supreme courts,
and courts of chancery, are required, "on the first of October, in
each and every year, to render to the treasurer of the proper
district, an account of all moneys by him collected for the use
of the State, in the manner prescribed by law, and at the same
time to pay to said treasurer the full amount of said moneys, af-
ter deducting therefrom the amount of the commissions to ivhich
he is or may be entitled." Acf 1807, ch. 66. sec. 1.
"If any such clerk shall knowingly omit to charge in his ac«
dealing with slaves.
387
count, any sum of money for which he is by law liable to ac-
count, and shall swear to any such account, knowing that the
same is incorrect, and shall produce such false account to either
treasurer, for the purpose of settlement, such clerk shall be con-
sidered guilty of wilful and corrupt perjury, and shall, for every
such offence, upon conviction in the superior court of the county
where such oaih shall be administered, suffer all the pains and
penalties prescribed by law." Ibid, sec. 2.
For the form of the warrant, and other proceedings, the read-
er is referred to the head of "Perjury f in the criminal code.
DEALING WITH SLAVES,
'•If any person shall deal or traffic with any slave, without a
permit in wriiing from his or her owner, setting forth the arti-
cles so to be traded, every such offence shall be deemed a breach
of the penal law, and punishable by presentment of the grand
jury, in any sum not exceeding fifty dollars, nor less than ten
dollars; and this act shall be given in charge to the grand jury,
whose duty it shall be to make such presentments as may come
within the knowledge of one of their own body, or that may be
given them by any other person." Act 1803, ch. 13, sec. 4.
Form of a warrant for trading with a slave.
"State of Tennessee,) ss.—To any lawful officer to execute and
county.) return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord
one thousand eight hundred and before me, G II, an acting
justice of the peace for said county, that C D, late of said coun-
ty, laborer, with force and arms, at, to wit, in the county afore-
said, on the day of in the year aforesaid, did then
and there deal and traffic with one E, a slave for life, the prop-
erty of the said A B, without a permit in writing from the said
A B, or any other lawfully authorized person, setting forth the
articles, for one dozen of chickens, which the said slave had in
possession, the said C D then and there well knowing him to
be a slave: These are therefore to command you to take the bo-
dy of the said C D, if to be found in your county, and him
forthwith bring before me, or some other justice of the peace
388
CRIMINAL DIVISION.
for said county, to answer the premises, and be dealt with as the
law directs. Given under my hand and seal, the date above
written." [To be signed and sealed officially by the justice.]
BEATING SLAVES.
"If any person or persons shall wantonly, and without suffi-
cient cause, beat and abuse the slave or slaves of another, the
person or persons so offending shall be subject to indictment in
the court of the county where such offence may be committed,
under the same rules, and subject to the same pains and pen-
alties, for the commission of similar offences on the body of any
white person." Act 1813, ch. 56, sec. 1.
Form of a warrant for beating a slave.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,j return:
Whereas, complaint has been made upon oath, by A B, of
said county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D late of said
county, yeoman, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year aforesaid, did
then and there wantonly, and without any sufficient cause, beat
and abuse a certain H, a slave for life, the property of the said
A B: These are therefore to command you to take the body of
the said C D, if to be found in your county, and him forthwith
bring before me, or some other justice of the peace for said
county, to answer the premises, and be dealt with as the law
directs. Given under my hand and seal, the date above writ-
ten." [To be signed, &c.]
Untieing or persuading a slave to leave his master's service, with
an intent of carrying him out of the government.
"If any person or persons, whatever, shall, directly or indirect-
ly, at any time after the ratification of this act, tempt or per-
suade any negro or negroes, or other slave or slaves, to leave his,
her or their master's or mistress' service, out of any intent or
design to carry or to convey away him, her or them out of this
enticing away slaves.
389
government, or shall harbor or conceal him, her or them for that
intent and purpose, and he thereof convicted, by his, her or their
own confession, or the oath of one or more creditable witnesses,
such person or persons shall, by the two next justices of the peace,
be committed to jail, or bound over to the next court to be held
for the county where the offence shall be committed, and shall
be prosecuted by indictment for the said offence, and being
thereof lawfully convicted, shall, by the said court, be adjudged
to pay to the master or mistress, for each slave so enticed away,
for the purpose aforesaid, the sum of sixty-two dollars and fifty
cents, or the value thereof, to be levied by order of the said court;
but in case the party offending shall not be found worth lands,
goods or chattels to the value aforesaid, then the said court shall
adjudge him, her or them to serve the owner of such slave or
slaves, or his assigns, five years, and so celiver him, her or them
over to the master, mistress or owner of such slave or slaves, so
tempted or persuaded as aforesaid, and make record thereof."—
Act. 1741, ch. 24.
Note.—The correct interpretation, I imagine, that ought to
be given to this statute is, that the sum of sixty-two dollars and
fifty cents, which the master or mistress is entifled to upon con-
viction of the defendant, shall be in lieu of all other fine, or pe-
cuniary mulct except the payment of cost.
Form of a warrant for the above offence.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, laborer, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year aforesaid, did
then and there entice, persuade and tempt one H, a slave for
life, the property of the said A B, to leave his master's service,
with an intent and design to carry and convey said slave out of
the State: These are therefore to command you to take the body
of the said C D, if to be found in your county, and him forthwith
bring before me, or some other justice of the peace for said coun-
ty, to answer the premises and be dealt with as the law directs.
390
CRIMINAL DIVISION.
Given under my hand and seal, the date above written. [To
be signed, &c.]
COUNTY TRUSTEES TO MAKE REPORT TO THE
COURT OF PLEAS AND QUARTER SESSIONS.
"The county trustee of each county in this State, at the term
of the county court held after the first day of January in each
year, shall make a true report to the county court for which he
is trustee, of all the moneys that have come into his hands, for
and during the preceding year, and likewise the amount paid
out by him for the use of said county, showing particularly for
what the sum was disbursed, which report shall be mads upon
oath; and any trustee failing or neglecting any of the duties
herein required, shall oe subject to indictment in the county
couit, and, on conviction, be fined not less than twenty-five dob
lars, and be removed from office." Act 1825, ch. 51, sec. II.
Form of a warrant against a trustee for not making a report.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, complaint has been made on oath, by A B, of said
county, this day of in the year of our Lord one
thousand eight hundred and before me, G H, an acting
justice of the peace for said county, that one C D, late of said
county, trustee, with force and arms, at, to wit, in the county
aforesaid, on the day of in the year aforesaid, did
not make a report of all the moneys by him received and paid
out for the year of our Lord one thousand eight hundred and
as required by law, io the justices of the court of pleas
and quarter sessions, at the second court after the first day of
January, in the year aforesaid: These arc therefore to command
you to take the body of the said C D, if to be found in your
county, and him forthwith bring before me, or some other justice
of the peace for said county, to answer the premises, and be
dealt with as the law directs. Given under my hand and seal,
the date above written." [To be signed, &c.]
bastardy.
391
VICE AND IMMORALITY.
' "All and every person or persons whatever shall, on the Lord's
day, commonly called Sunday, carefully apply themselves to the
duties of religion and piety; and no tradesman, artificer, planter,
laborer,or other person whatever, shall, upon the land or water, do
or exercise any labor, business, or work of their ordinary callings,,
(works of necessity and charity only excepted,) nor employ them-
selves either in hunting, fishing or fowling, nor use any game,
sport or play on the Lord's day aforesaid, or any part thereof,
upon pain, that every person so offending, being of the age of
fourteen years, and upwards, shall be liable to be indicted, as
doing acts contrary to morality and decency." Act 1741, ch. 14.
BASTARDY.
"Any two justices of the peace, upon their own knowledge
or information made to them, that any single woman within their
own county, is delivered of a child or children, may cause such
woman, ufter the expiration of thirty days from the time of her deliv-
ery, and not before, to be brought before them, and examine her up-
on her oath concerning the father, and if she shall refuse to de-
clarc the father she shall pay a fine of three dollars and twelve and a
half cents, and give sufficient security to keep such child or child-
ren from being chargeable to the county, or shall be committed
to prison until she declares the same, or pay the fine aforesaid,
and give the security aforesaid; but in case such woman shall
upon oath, before the said justices, accuse any man of being the
father of a bastard child, or children, begotten of her body, such
person, so accused, shall be adjudged the reputed father of such
child, or children, and stand charged with the maintenance of
the same, as the county court shall order, and give security to
the justices of said court to perform the said order, and to in-
demnify the county where such child or children shall be born,
free from charges of his, her or their maintenance, and may be
committed to prison until he find securities for the same, if such
security is not by the woman before given." See Haywood and
Cobbs' Revisal, page 22.
Note.—Until the passage of the act of 1819, two justices of
392
CRIMINAL DIVISION.
peace could require any single woman whom they supposed to
he with child, to appear before them, and examine her as to
whom was the father of the child of which she was then preg-
nant, and require her to answer to that fact upon oath, as pre-
scribed in the preceding section; but this was soon found to be
premature, as it caused perjury, through fraud or fear, to be
committed against some innocent men, as some of those single
women, when delivered of the child of which they were then
pregnant, would produce a mulatto, although they had upon their
oath charged the same to some respectable white men. And the
ordinary decencies of life refused that they should be dragged
up before two magistrates before the expiration of thirty days
after the birth of such child. These considerations induced the
legislature to pass the act of 1819, referred to, and, therefore, no
magistrate, or other person, whatever, can compel the attend-
ance of any single woman before any two justices,/or the pur-
poses aforesaid, until thirty days after such bastard child has
been born.
This was rendered more necessary, too, by the construction
put upon the act of 1741, ch. 14, by the courts of the country:
they determined that the woman's testimony, charging any one
as the father of a bastard child, should be incontestable. This
point, with some others, was elaborately argued, and ably deci-
ded by the supreme court, in Aaron Ingram's case, at Knoxville,
at the November term, 1817. See 4 Hayw. Rep. 221.
"Any two justices of the peace, at their discretion, may bind,
to the next county court, him that is charged upon oath to have
begotten a bastard child, which shall not then be born, and the
county court may continue such person upon security until the
woman shall he delivered, that he may be forthcoming when the
child is born:" Provided, the woman shall have come voluntarily
before the magistrate and charged such person as the putative
father of the child of which she was then pregnant. Act 1741,
ch. 14, sec. 11.
"Such person so accused shall be adjudged the reputed father
of such child or children, unless such person so accused shall tile
his affidavit, clearly setting forth that justice requires an issue
to be made, to try the truth of such charge; whereupon it shall
be the duty of the court in which such charge may be pending,
bastardy.
393
to hear and determine the matter, as to right and justice may
appertain." Act 1822, ch.29, sec. 1.
Note.—The issue contemplated by this section is not a matter
of course, but can only be allowed upon the affidavit of the. per-
son bound over to court as the reputed father of a bastard child,
clearly setting forth that justice requires such issue; therefore, the
affidavit must present the facts to the court, which show that jus-
tice does require such issue, that the court may judge of the jus-
tice of the application, and not the affiant: as if the affiant was
out of the country for a considerable time, both before and af-
ter, and could not possibly have had access to her, or any other
such facts as would render it highly probable that he could not
be the father of such child; but it will not be sufficient to say
that she was a base woman, and that others had access to her at
and about the same time, and the like.
If issues should be allowed upon light and insufficient premi-
ses, it would be almost impossible to render liable the guilty fa-
ther of a bastard child. When any two justices shall have
bound any person over to court as the reputed father of a bas-
tard child, with or without issue, the court shall proceed finally
to determine the case, without the personal attendance of the
woman, (the mother of the child,) and her oath before the justi-
ces shall be sufficient evidence for them to proceed, unless a ju-
rj shall determine that he is not the father of the child.
It has been the custom of some of the county courts, before
the passage of the act of 1822, to make large allowances to the
mothdrs of bastard children, which operated as a reward of their
unchastity and impurity, and as a mean by which mean huzzies
would be enabled to acquire property by the prostitution of their
bodies; the legislature, therefore, by the second section of the
act of 1829, ch. 29, thought it prudent to break up the possi-
bility of such a trade, by limiting the county courts to certain
sums, beyond which they should *not go, in making their three
years' allowance, viz. forty dollars for the first year, thirty dol-
lars for the second, and twenty dollars" for.-the third year; at the
expiration of which time it shall be.;the duty of said court, ma-
king such allowances, to dispose of such child or children, in such
manner as shall most conduce to the interest of such child, either by
12
394
CRIMINAL division.
giving it to the reputed father, or binding it out to some suitable person,
in their discretion.
Note.—It was customary, in many instances, that after the
county courts had condemned any one of having begotten a bas*
tard child, and after he had entered into bond with security for
the maintenance of such child, he would go and legitimate it,
with a view of avoiding the payment of the condemnation, and
by force take the child out of the arms of its weeping mother
into his own custody. To prevent occurrences of this kind, the
legislature passed the act of 1825, chapter 30, which is in the
words following:
"Where any person or persons shall have been, or may hereafter
be duly convicted, according to law, of having begotten a bastard
child, and shall have entered, or may hereafter enter, into bond
with security, conditioned for the maintenance of said child, and
for the prevention of said child's becoming a county charge, such
person, so convicted as aforesaid, and his securities shall not be ex-
onerated thereby from the penalty of such bond, notwithstand-
ing such person' may, after the execution of such bond, make
such child legitimate, as though born in wedlock, according to the
provisions of an act entitled 'an act to authorize the different
superior and county courts of law in this State to alter the names
of illegitimate persons,' passed October 3d, 1805."
Note.—Although it may seem, at first view, that the act of
assembly requires the county court to dispose absolutely of such
illegitimate child, at the expiration of three years, by giving it
to the father, or to bind it out to some other suitable person, who
might raise it discreetly, yet that is not the proper construction.
If a father legitimates a child charged upon him, he is not there*
by absolutely authorized to tear the child from the arms of its
mother, nor is the court authorized so to order the child into his
custody, or to be placed under the tuition of any one else, un-
less by the consent of the mother, unless the child is a pauper;
and no child is to he construed to be a pauper while the mother
by her industry, or the child's relations, may choose to maintain
the child and keep it from becoming a county charge* None
are paupers hut such as must become county charges. These
points have been fully settled by the supreme court, in the case
of Lawson and wife vs. Scott, 1 Yerger's Reports, 92.
BASTARDY.
395
"Hereafter, when any warrant shall have been issued against
any person charged with bastardy, and the individual cannot
be found, it is the duty of the officer regularly to return the
warrant to the county court; then, upon the suggestion of the
solicitor general, that the person so charged hath removed into
another county from that in which the crime may have been com-
mitted, it shall be the duty of the clerk of the county court to
issue a capias, directed to the sheriff of any county in the State,
whose duty it shall be to execute the same, under the same pen-
alties and rules as other process in criminal cases." Act 1813,
ch. 131.
Form of a warrant to apprehend a single woman for having a bas-
tard child.
"State of Tennessee,! ss.—To any lawful officer to execute and
county,) return:
Whereas,' information has been given to us, two justices of
the peace of the county aforesaid, that A B, of said county, a
single woman, has been for thirty days past, delivered of a
bastard child, which may become chargeable to the county:
These are therefore to command you to apprehend and bring
before us, or some other two justices of the peace for said
county, the aforesaid A B, to answer all matters alleged against
her, as aforesaid, for which this shall be your sufficient warrant.
Given under our hands and seals, this day of 18
[To be signed and sealed officially by the justices.]
Examination of the woman before the justices.
"State of Tennessee.)
county,) ss'
Whereas, upon the examination of A B, a single woman, this
day taken on oath before us, it appears that she has been deliv-
ered of a bastard child more than thirty days, which said has-
tard child may become chargeable to the county, and the said
A B has confessed that a certain C D, of the county aforesaid,
did beget the said child, and has charged him with the same.
Taken before us, two justices of the peace for the county afore-
said, this day of 18 [To be signed, &c. by
the justices.]
390
CRIMINAL DIVISION.
Form of a warrant against the reputed father of a bastard child.
"State of Tennessee,) ss.—To any lawful officer to execute and
county ,5 return:
"Whereas, upon the examination of A E, a single woman, tins
day taken before us, it appears that she has been delivered of
a bastard child more than thirty days, which said child maybe-
come chargeable to the county aforesaid, and the said A Bhas
confessed that a certain C D, of the county aforesaid, did beget
the said child, and has charged him with the same: These are
therefore to command you to apprehend the said C D, if to be
found in your county, and him forthwith bring before us, or
some other two justices of the peace for said county, to an-
swer the above named charge. Herein fail not. Given under
our hands and seals, this day of 18 [To
be signed, &c. by the justices.]
Form of a recognizance.
"State of Tennessee,)
i '> ss.
county.)
Be it remembered, that on the day of in the
year of our Lord one thousand eight hundred and per-
sonally appeared C D, E F and I J, before us, two acting justi-
ccs of the peace for said county, and acknowledged themselves
to stand justly indebted to the State of Tennessee, that is to say,
the said C D in the sum of dollars, and the said E F and
IJ in the sum of dollars each, to be levied of their respec-
tive goods and chattels, lands and tenements; but to be void if
the said C D shall make his personal appearance before the
justices of our court of pleas and quarter sessions, at a court to
be liolden for the county aforesaid, at the court house in the town
of in said county, on the Monday of
next, then and there to answer the State of Tennessee upon a
charge of having begotten a bastard cliild upon the body of
one A B, a single woman of said county, and abide such sen-
tence, and perform such order as the court shall adjudge in the
premises, and not depart said court until discharged by due
course of law. Acknowledged before us, the date above writ-
ten." [To be signed by the justices.]
bastardy.
397
Mittimus in case of a refusal or neglect to give security.
«State of Tennessee,)
count}-, $ ss'
To the sheriff or keeper of the common jail of said county:
We herewith send you the body of a certain C D, of said
county, who was brought before us, G H, and L M, two acting
justices of the peace for said county, being charged by A B, a
single woman of said county, of having begotten a bastard child
of her body, which said child is now born and may become a
county charge; and the said C D having failed or refused to en-
ter into recognizance with security for liis appearance before
the justices of our next court of pleas and quarter sessions, to an-
swer this said charge: These are therefore to command you to
receive into your custody, the said C D, in the common jail of
said county, and him safely keep until thence discharged by due
course of law. Given under our hands and seals this
day of 18 ." [To be signed and sealed officially
by the justices.]
Note.—I have nearly finished my labours upon this division
of "The Tennessee Justices' Manual and Civil Officers' Guide;"
but before I part with the reader here, I must be permitted to ob-
serve, that the stock of decency and morality belonging to a State
or society, is a portion of the public property, in the preservation
of which every member of society is deeply interested; for, when-
soever the distinction between virtue and vice shall be broken
down, civilization and the moral and intellectual improvement
of man is at an end—he sinks at once into the degraded state of
savage barbarity. It is true that there are a number of low
minded men and women who hate the restraints of our law, and
repine at the thought that their licentious brutality is not per-
mitted; and it is equally true, that some such have gained a kind
of factitious importance in society, by having hoarded around
them ill-gotten pelf; but the good and the wise have never been
heard to murmur at the restraints imposed by the criminal laws
of this State. Our law requires no more of any one than to be
a gentleman or lady, and to the vicious and evil inclined that is
a sore requirement indeed; and strange as it may seem, there are
398
CRIMINAL DIVISION.
but few of the low and vulgar but will take it in high dude
to be told they are not gentlemen or ladies, when most of th*
acts of their lives prove them to be less than well bred sava»e 6
But whether it is liked or disliked, our law will render a pers0 '
liable to presentment or indictment, and to fine and, in most
ses, imprisonment for every act of his or her life, which is C0Q"
trary to decency and good morals.
THE TENNESSEE
JUSTICES' MANUAL,
AND CIVIL OFFICERST GLIDE.
PART THIRD.
MISCELLANEOUS DIVISION.
PENAL ACTIONS.
Penal actions are suits given by statute, to recover a sum of
money, given by way of penalty to the State, to the county, or
to the State and a common informer, or the county and such in-
former, for the violation of any statute commanding the perfor-
mance of a particular duty, or prohibiting the doing a particular
thing. 3 Bl. Com. 162. 4 Bl. C. 307.
Some of these suits are given to the State only, and certain
officers of the county or State are required to prosecute them for
the violation of the law; and some are given exclusively to the
county where the offence is committed: and, in either case, the
attorney for the State is bound to attend to the suit, or suits, ex
officio, (by virtue of his office;) but not so where the action is a
qui tam action, or given absolutely to an informer. A qui tam
action is one where the personal plaintiff sues as well for the
county or State as for himself, and the penalty or damages, when
recovered, are to be divided between them. In such actions an
400
MISCELLANEOUS DIVISION.
individual is to have such a portion of the penalty, and therefore
must procure his own counsel.
FIREWOOD.
"All firewood sold in the towns established within this State
by the legislative authority, shall be sold by the cord, and not
otherwise; and each cord shall contain eight feet in length, four
feet in height, and four feet in breadth, and shall be corded by
the carter or seller, under the penalty of two dollars and fifty
cents for each offence, to be recovered against the owner or sell-
er, before a single magistrate, by warrant, which shall be to the
use of the informer." Act 1784, ch. 32. sec. 1.
This statute seems to have been lost sight of by the sellers of
wood, to the very great injury of the purchasers; and this statute
would have been put in force long since, had the people known
its existence. The violation of this statute gives an action to
any one who will first sue for the same, and when a recovery is
had the whole penalty is his own. But two persons cannot have
this action jointly, or severally; for if there are twenty common
informers, the first only can maintain the action.
Form of a warrant.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, information has been given to me, G II, an acting
justice of the peace for said county, by A B, that C D, of said
county, has sold firewood in the town of in said
county, (the said town having been laid off by the authority of
the legislature of this State) otherwise than by the lawful cord,
to one E F, in said town: These are therefore to command you
to summon the said C D to appear before me, or some other
justice of the peace for said county, to answer the said A B of
a plea of debt, due by penalty, in the sum of two dollars and
fifty cents, in consequence of such selling of wood. Herein fail
not. Given under my hand and seal, this day of
18 G II, [L.S.]
Justice of the Peace."
PENAL ACTIONS.
401
Form of the judgment in favor of the plaintiff.—"At
jn the county of —the parties appeared before mc, G H,
an acting justice of the peace for said county, and the warrant
being read to and heard by the defendant, he says he does not
owe the plaintiff; and the testimony being heard and fully un-
derstood, and it appearing that the defendant did sell firewood
other than by the cord to E F, in the town of in said
county, and that said town was laid out by the authority of the
legislature: It is therefore considered by me, that the said plain-
tiff recover of the said defendant, the sum of two dollars and
fifty cents, and the cost in this behalf accrued, for which an ex-
ecution may issue. Given under my hand and seal, this
day of 18 [To be signed, &c.j
JAILERS.
"No jailer in this State shall permit the wife of any person
committed to his care, to board or live in the house with the
said jailer, under the penalty of fifty dollars, recoverable before
any court having jurisdiction thereof." Act 1823, ch. 45,sec. 3.
"No jailer in this State shall permit any prisoner to have
more than a half pint of spirits, in any twenty-four hours, under
the penalty of fifty dollars, recoverable as aforesaid." Ibid, sec. 4.
It will be seen that a justice of the peace has jurisdiction over
each of these penalties, as the penalty does not exceed fifty dol-
lars.
Form of a warrant for permitting the wife of a prisoner to board
with the jailer.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, information has been made by A B, to mc, G II,
an acting justice of the peace for said county, that C D, jail-
qr of said county, did permit I J, the wife of L J, to board
in the house with him, the said C D, while the said L J
was a prisoner committed to his care, and then in the jail of
said county: These are therefore to command you to summon
the said C D to appear before me, or some other justice of the
peace for said county, to answer the said A B in a plea of debt
due by penalty, of fifty dollars, in consequence of the above pre-
402
MISCELLANEOUS DIVISION.
mises. Herein fail not. Given under my hand and seal, this
day of 18 , [To be signed, &c.]
Form of a warrant for furnishing spirits to a prisoner.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, information has been made by A B, to me, G H, an
acting justice of the peace for said county, that C D, jailer of
said county, did permit E F to have more than one half pint of
spirits per day, while confined as a prisoner, in his care, in the
jail of said county: These are therefore to command you to
summon the said C D to appear before me, or some other justice
of the peace for said county, to answer the said A B in a plea
of debt, due by penalty, of fifty dollars, for the above premises.
Herein fail not. Given under my hand and seal, this
day of A. D, 18 ." [To be signed, &c.]
Form of the judgment.—"At in the said county, person-
ally appeared both parties, before me, this day of
A. 1). 18 and the testimony on both sides being heard and
fully understood, and it appearing that the defendant, as the
jailer of said county, did permit the said E F to have more than
one half pint of spirits within the period of twenty-four hours,
when he was the prisoner of the said defendant, in his care, in
the jail of said county: It is therefore considered by me, that
the plaintiff recover of the said defendant the sum of fifty dol-
lars, and all cost in this behalf accrued, for which an execution
may issue. Given under my hand and seal, the date above
written." [To be signed, &c.]
IDLE AND DISORDERLY PERSONS.
"It shall not be lawful for any house-keeper to harbor any
idle person of ill-fame or suspicious character, for any longer
time than ten days, under the penalty of twenty dollars for
every such offence, to be recovered by warrant before any jus-
tice of the peace for the county where the offence is commit-
ted," Act 1801, ch. 22, sec. 4.
"All fines inflicted by this act, shall be one half to him who
will sue for the same, and the other half to the use of the coun-
ty." Ibid, sec. 5.
PENAL ACTIONS.
403
Form of a warrant for harboring an idle person for more than
ten days.
"State of Tennessee,) ss.—To any lawful officer to execute and
county, £ return:
Whereas, information has been made by A B, to me, G H,
an acting justice of the peace for said county, that C D, of said
county, being a house-keeper, did then and there harbor one E
F, an idle and disorderly person of ill-fame, in his said house, for
more than ten days, then and there well knowing the said E F
to be such idle person of ill-fame: These are therefore to com-
mand you to summon the said C D to appear before me, or some
other justice of the peace for said county, to answer A B, who
sues as well for the county of as for himself, of a plea
of debt, due by penalty, of twenty dollars, for the above premi-
ses. Herein fail not. Given under my hand and seal, this
day of A. H. 18 ." (To be signed, &c.)
Form of a judgment upon the last warrant.—"At in
the said county, the parties appearing, and the warrant being
read to and heard by the defendant, he says he does not owe the
plaintiff any thing; and the testimony on both sides being heard
and fully understood, and it appearing to me that the said de-
fendant did harbor a certain E F, in his house, for more than
ten days, then and there well knowing the said E F to be an
idle person of ill-fame: It is therefore considered by me, that
the plaintiff recover of the said defendant the sum of twenty
dollars, and all cost in this behalf accrued. Given under my
hand and seal, this day of A. D. 18 [To
be signed, &c.]
TOBACCO INSPECTORS.
"For every neglect to attend (to the inspection,) the inspectors
shall forfeit and pay, to the party grieved, two dollars; or shall
be liable to an action on the case, at the suit of the party grieved,
to recover all such damages as he, she or they shall have sustain-
ed by occasion of any such neglect, together with all cost." Act
1797, ch. 45, sec. 5.
404
MISCELLANEOUS DIVISION.
Form of the warrant for the penalty.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,£ return:
Whereas, information has been given by A B, before me, G H,
an acting justice of the peace for said county, thatC D, late of
bedd county, tobacco inspector, did, when called on to do so, neg-
lect to attend to the inspection of the tobacco of the said A B,
within reasonable time: These arc therefore to command you to
summon said C D to appear before me, or some other justice of
the peace for said county, to answer the complaint of sa d AB,
of a plea of debt, due by penalty, of two dollars, for the above
premises. Herein fail not. Given under my hand and seal,this
day of AD. 18 ." [Tobe signed, &c.]
If the plaintiff has sustained damage above the value of two
dollars, it would be most prudent to resort to his action upon the
case, before two justices, where the damage does not exceed
twenty dollars; but if the damage exceed that sum, then he
ought to sue in the county or circuit court.
COOPERS, BARRELS, &c.
"No cooper, or other person furnishing casko, shall expose to
sale any barrel, or half barrel, for the holding of butter or lard,
flour or kiln-dried meal, other than such as arc by this act di-
iccted to be made for that use, under the penalty of two dollars
for each. And every cooper, cr other person making barrels or
half barrels,'before they expose the same to sale, shall set his
or her proper brand upon the same; which brand shall be re-
corded in the office of the clerk of the county court where he
or she may reside, under the penalty of (lor each and every
neglect) twenty dollars." Act 1801, ch. 5, see. 14.
"And all casks in which flour or meal shall tbe packed for
exportation, shall be well made of good, seasoned materials, tight-
ened with ten hoops, sufficiently nailed, with four nails in each
chime hoop, rind three n.uis in each upper bilge hoop; and shall
be of the following dimensions, to wit: the staves shall be tiven-
ty-seven inches in length, and the heads seventeen inches in
diameter; and for half barrels, the staves shall be twenty-three
PENAL ACTIONS.
405
inches in length, and diameter at each head of twelve inches
and a half." Ibid, sec. 12.
"Every miller, or bolter of flour, where flour is made intend-
cd for exportation, shall provide and use distinguishable brand
marks, and shall, before the flour is removed, impress on the
head of each barrel the name of the miller or bolter by whom
the same may have been manufactured; he shall also, on the
game bead, mark the quality of the flour contained in such par-
ticular barrel, by branding thereon, at full length, the word,
"superfine," "fine," or "middling," as the case may be." Act 1819,
ch. 61, sec. 1.
"If any person or persons sball export any flour, as aforesaid,
without distinguishing with a brand the name of the miller
or bolter by whom the same was manufactured, together with
the proper quality of the flour so exported, or shall mix the flour
with com meal, or neglect any of the provisions required in the
first section of this act, such person or persons, for every such
offence, shall forfeit and pay the sum of two dollars for each
barrel, to the use of him who will sue for the same. And if any
person or persons, whatever, shall impress or brand the mark,
"superfine," "fine," or "middling," or the semblance thereof, up^
on any barrel or cask of flour, after the same has been removed
from the mill, or place where it was manufactured or bolted, or
shall, at any time or place, impress or.brand on any barrel or
cask of flour the name of any other person than the proper
name of the miller or bolter by whom the same was prepared
or boiled, such person or persons shall, for every such offence,
be liable to an indictment in any of the circuit courts of this
State, and shall, on conviction, be imprisoned, at the discretion
of the court, not Jess than three nor more than twenty days, and
shall moreover be fined in the sum of fifty dollars, one half to
the use of him who will sue (or prosecute) for the same, the oth-
er half to the use of the State." Ibid, sec. 2.
"The other several forfeitures, where they are not otherwise
directed, are to be one half to the person who will sue for the
same, and the other half to the use of the county where the of-
fence is committed." Ibid, sec. 3.
406
MISCELLANEOUS DIVISION.
Form of a warrant for exposing to sale four barrels, contrary to
law.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, information has been given by A B, to me, G H,
an acting justice of the peace for said county, that one C D,
late of said county, cooper, did expose for sale flour barrels, which
were not made of good, seasoned materials, nor of the proper
dimensions, as required by law: These are therefore to command
you to summon the said C D to appear before me, or some other
justice of the peace for said county, to answer the said A B,who
sues as well for the county of as for himself, of a plea of
debt, due by penalty, of two dollars, for the above premises.—
Herein fail not. Given under my hand and seal, this
day of A. D. 18 ." [To be signed, &c.]
Form of a warrant for failing to have his brand recorded in the
cleric's office, $t.
"Slate of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, information has been given by A B, to me, G II,
an acting justice of the peace for said county, that C D, of said
county, cooper, did expose barrels and half barrels for sale, he-
fore he had procured his brand to be recorded in the clerk's of-
flee of the clerk of the county court of the county aforesaid, the
said C D residing then in said county: These are therefore to
command you to summon the said C D to appear before me, or
some other justice of the peace for said county, to answer the
said A B, who sues as well for the county aforesaid as for him-
self, in a plea of debt, due by penalty, of twenty dollars, by rea-
son of the premises aforesaid. Herein fail not. Given under
my hand and seal, this day of A. D. 18 ." [To
be signed, Ac.]
The form of the judgment, in either case, will he the same of
the qui tam judgment for harboring an idle person, under page
403.
PENAL ACTIONS.
407
Form of a warrant for exporting a barrel of four, without having
the name of the miller branded on the barrel, with the proper qual-
ity of the four.
"State of Tennessee,) ss.—To any lawful officer to execute and
county, 5 return:
Whereas, information has been given by A B, to me, G H,
an acting justice of the peace for said county, that C D, late of
said county, did export from the county aforesaid, one barrel
of flour, manufactured at the mill of E F, in said county, with-
out having the name of said E F, and the quality of the flour,
branded on the head of said barrel of flour, the said barrel of
flour being ground, prepared and bolted by the said E F: These
are therefore to command you to summon the said C D to ap-
pear before me, or some other justice of the peace for said
county, to answer A B of a plea of debt, due by penalty, of ten
dollars, by reason of the premises aforesaid. Herein fail not.
Given under my hand and seal, this day of
A. D. 18 ." [To be signed, &c.]
Form of a judgment upon the last warrant.—"At in the
county aforesaid, personally appeared both parties, and the
warrant being read to and heard by the defendant, he says he
does not owe the plaintiff any thing; and the evidence on both
sides being heard and fully understood, and it appearing that
the said defendant did export a barrel of flour, from the coun-
ty aforesaid, manufactured at the mill of E F, without having
the name of the said E F, or the quality of the flour branded
on said barrel: It is therfore considered by me, that the plain-
tiff recover of the defendant the sum of ten dollars, and all
cost in this behalf accrued, for which an execution may issue,'"
&c.
OPINIONS OF THE SUPREME COURT.
"In all and every case determined in the supreme court of
errors and appeals, it shall be the duty of said court to give their
opinion in writing, and file the same with the clerk of the court,
who shall deposit the same with the record in the cause, and
keep the same on file in his office, subject to the inspection of
all persons wishing to examine the same; and it shall be the du-
408
MISCELLANEOUS DIVISION.
ty of the said clerk to deliver to any person making application
for the same, a certified copy of any opinion filed in his office,
for which he shall be paid by the person applying for the same,
by the copy sheet, as in equity causes; and any clerk who shall
suffer an original opinion of any of the judges of said courts to
be taken out of his office, shall pay tiie sum of twenty dollars,
to be recovered before any justice of the peace, to the use of
the person suing for the same." Act 1829, eh. 60, sec. 2.
Form of a warrant for letting the original opinion go out of his
office.
"State of Tennessee,) ss.—To any lawful officer to execute and
county A return:
Whereas, information has been given by A B, to me, G II,
an acting justice of the peace for said county, that one C D,
of said county, clerk of the supreme court, did suffer the origi-
nal opinion of the supreme court, as delivered bv in the
case of E F vs. I J, to be taken out of his office: These are
therefore to command you to summon the said C D to appear
before me, or some other justice of the peace for said county,
to answer the said A B of a plea of debt, due by penalty, of
twenty dollars, by reason of the above premises. Herein fail
not. Given under my hand and seal, this day of
A. D. 18 ." [To be signed, &e.]
JUSTICES OF THE PEACE.
"Any justice of the peace within this State who has removed,
or shall hereafter remove out of the captain's company in which
he lived at the time of his appointment, shall, and it is hereby
mace his duty, to attend at the muster-ground in said company,
on the second Saturday in each month, for the purpose of dis-
charging the duties of his office in said company, for which he
was appointed, under the penalty of twenty-five dollars for eve-
ry such failure, to be recovered by warrant before any justice
of the peace, one half to the county and the other half to hini
who will sue for the same: Provided, if it should appear said
justice was prevented by sickness from attending, it shall be a
sufficient excuse." Act 1819, ch. 33, sec. 10,11.
PENAL ACTIONS.
410
Form of a warrant to recover such penalty.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, complaint has been made by A B, before me, G II,
an acting justice of the peace for said county, that one C D,
Esquire, was an acting justice of the peace for said county, for
the bounds of Captain company, and that he has remo-
ved from the bounds of said company to the town of
in said county, and that he did not attend at the muster ground
of Captain on the second Saturday of last, to dis*
charge his duties as a justice of the peace for said company:
These are therefore to command you to summon the said C D
to appear before me, or some other justice of the peace for said
county, to answer the said A B, who sues for the county of
as well as for himself, of a plea of debt, due by penalty,
of twenty-five dollars, by reason of the above premises. Here-
in fail not. Given under my hand and seal, this day of
A. D. 18 ." [To be signed, &c.]
MILLERS.
"All millers shall grind according to turn, and shall well and
sufficiently grind the grain brought to their mills, if water will
permit, and take no more toll for grinding than one eighth of
the coin and wheat, and one-fourteenth for chopping grain of
any kind; and every miller, or keeper of a mill, making default
herein, viz. not grinding according to turn, nor well and suffi-
ciently grinding the grain, if the water will permit, as aforesaid,
or exacting or taking more toll than herein is set down and al-
lowed, shall, for every such offence, forfeit and pay three dollars
to the party injured, to be recovered before any justice of the
county wherein such offence is committed, with costs: Provided,
nevertheless, that it shall be in the power of any such owner to
grind, or cause to be ground, his own grain, at any time he
thinks fit." Act 1777, ch. 23, sec. 10.
"All millers shall keep in their mills the following measures,
viz. a half bushel and peck, at full measure, and also proper
toll (dishes for each measure; and every owner, by himself, ser-
vant or slave, keeping any mill, and shall be lawfully convicted
3 B
410
miscellaneous division.
of keeping false dishes, contrary to the true intent and mean-
ing of this act, shall forfeit and pay, to the party injured, twelve
dollars and a half, to he recovered before any justice of the
county, as aforesaid; and, in case such miller is a free person,
and keeps such mill for a share, or for hire, and is guilty of any
of the ahove offences, it shall be lawful for the owner to stop
so much of his share or hire as will be sufficient to reimburse
himself for such fine or fines as he shall b ecome answerable for,
with the charges that shall become due thereon." Ibid, sec. 11.
It would seem, that the servant or slave shall be liable to the
penalty here denounced. But this is not the meaning which
must be given to that portion of the statute. The person who
drew out the statute understood himself to mean, that if the ser-
vant or slave of the owner of a mill should keep false measures,
or not have.the measures required by law, that the master, and
not the servant or slave, should be liable: and so must we inter-
pret it.
Form of a warrant for not grinding in turn.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,^ return:
Whereas, complaint has been made by A B, to me, G II,
an acting justice of the peace for said county, that one C D, of
said county, miller, did not grind a grist of corn for him, the
said A B, in its proper turn, but, on the reverse thereof, did
grind a grist for one E F, which came to the mill of the said
C D long after the grist of the said A B was placed in the hands
of the said C D: These are therefore to command you to sum-
mon the said C D to appear before me, or some other justice of
the peace for said county, to answer the said A B of a plea of
debt, due by penalty, of three dollars, by reason of the above
premises. Given under my hand and seal, this day of
A. D. 18 ." [To he signed, &c.]
Form of a -warrant for not keeping the proper measures in his mill.
"State of Tennessee,) ss.—To any lawful officer to execute and
county, 5 return:
Whereas, information is given by A B, to me, G H, an act-
ing justice of the peace for said county, that C D, of said coun-
ty, miller, keeps a mill in said county, and grinds upon the same
for the public for toll, and that he does not keep a half bushel
PENAL ACTIONS.
411
and a peck of full measure, and proper toll dishes for each rneas-
ure, in his-said mill: These are therefore to command you to
summon the said C D to appear before me, or some other justice
of the peace for said county, to answer the said A B of a plea
of debt, due by penalty, of twelve dollars and a half, by reason
of the above premises. Herein fail not. Given under my hand
and seal, this day of A. D. 18 ." [To be
signed, &c.]
Form of a warrant for taking too much tolL
"State of Tennessee,) ss.—To any lawful officer to execute and
county, £ return:
Whereas, information has been given by A B, to me, G H,
an acting justice of the peace for said county, that C D, of
said county, miller, keeps a mill to grind for the public, in said
county, and that the said A B had been one of his customers,
and that the said C D took a quart too much toll out of every
two bushels of corn and wheat he ground for the said A B, and
that he took said quart too much toll of two bushels of wheat
which he, the said C D, ground for him the said A B, on the
day of A. D. 18 : These are therefore to
command you to summon the said C D to appear before me, or
some other justice of the peace for said county, to answer the
said A B of a plea of debt, due by penalty, of three dollars,
by reason of the above premises. Herein fail not. Given un-
der my hand and seal, this day of A. D. 18
[To be signed, &c.J
Form of a judgment for taking too much toll.-—"At in
the county of the parties appearing, and the warrant
being read to and heard by the defendant, he says he owes the
plaintiff nothing; and the evidence on both sides being heard and
fully understood, and it appearing that said defendant did take too
much toll out of a grist of two bushels of wheat of the plaintiff, for
grinding the same: It is therefore considered by me, that the
plaintiff recover of the defendant the sum of three dollars, and
all cost in this behalf accrued, for which an execution may issue.
Given under my hand and seal, this day of A.D.
18 [To be signed, &c.]
412
miscellaneous division.
FIRE HUNTING.
"If any slave or slaves shall be discovered hunting in the
night-time, by fire-light, with a gun, the master of such slave or
slaves, or the person in whose service he or they may be, shall, up-
on due conviction of such slave or slaves, before any justice of the
peace of the county wherein such offence may be committed,
forfeit the sum of twelve dollars and fifty cents, to be levied by
a warrant immediately to be issued by such justice of the peace
for that purpose; and if any person shall be duly convicted, as
aforesaid, of sending his slave to hunt with a gun, in the night-
time, by fire-light, he shall be subject to the same pains as are
provided by this act to be inflicted on fire hunters:" that is to say,
to indictment or presentment in the county or circuit court of
the county where the offence was committed. Act 1784, ch. 23,
sec. 3.
"All fines and forfeitures imposed by this act. shall be one
half to the use of the informer and the other half to the use of
the county where the offence has been committed." Ibid, sec. 7.
Note.—When a slave is taken up under the requirements of
this act, the process must issue in a kind of double form, re-
quiring the officer to take the slave and notify the master, mis-
tress or person in whose service such slave may be. Thus:
Form of the warrant.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, information is given by A B, to me, G H, an acting
justice of the peace for said county, that a negro man, a slave
for life, the property of C D, and in his possession, by the name
of H, was discovered hunting with a gun, by fire-light, in the
nighttime: These are therefore to command you to take into
your custody, said slave, H, and him forthwith bring before ine,
or some other justice of the peace for said county, and that you
also notify the said C D of the contents of this precept, and to
appear to answer the complaint of the said A B, who sues as
well for the county of as for himself, in a plea of debt
of twelve dollars and a half, due by penalty, for the above pre-
mises. Herein fail not. Given under my hand and seal, this
day of A.D. 18 ." [To be signed, &c.]
penal actions,
413
Note.—It may be asked, for what purpose is the slave to be
brought before the justice of the peace? Answer: For two ob-
jects.—1* For the identity of the person and property, to ren-
der the master or mistress, or person in whose service he is, lia-
ble to the penalty. 2. To render the negro liable, as a free
person, in the event it should turn out that no one will claim
him as a slave, or that it should be proved that he was a free
man,
TAVERN-KEEPERS TO HAVE A SIGN.
"Every person who shall obtain a license, agreeably to law,
to keep an ordinary, or house of public entertainment, shall, in
one month from the date of said license, set up, or cause to be
set up, in public view, at his said house of entertainment, a sign
with an inscription thereon, denoting the same to be an ordina-
ry, or house of public entertainment, under the penalty of for-
feiting five dollars for every month the said ordinary or house
of public entertaiment shall be kept without having a public
sign set up, as aforesaid—one half to the use of who him will
sue for the same, and the other half to the use of the State."—
Act 1767, ch. 8, sec. 16.
Form of the warrant for the above.
"State of Tennessee,) ss.—To any lawful officer to execute and
county return:
Whereas, information has been given by A B, this
day of in the year of our Lord one thousand eight hundred
and before me, G H, an acting justice of the peace for said
county, that C D, late of said county, tavern-keeper, at, to wit,
in the county aforesaid, did then and there unlawfully keep an
ordinary, or house of public entertainment, for the space of six
months from the date of his license, without having set up a
sign at his said ordinary within one month of the date of his said
license, or at any other time before the expiration of said six
months, designating the same to be such ordinary, or house of
public entertainment: These are therefore to command you to
summon the said C D to appear before me, or some other jus-
tice of the peace for said county, to answer the complaint of
the said A B, who sues as well for the State of Tennessee as
414
MISCELLANEOUS DIVISION.
for himself, in a plea of debt of thirty dollars, due by six pen-
alties of five dollars each, for the above premises. Herein fail
not. Given under my hand and seal, the date above written."
[To be signed, &c.]
ORPHANS AND GUARDIANS.
"The grand jury of every county of this State shall annually,
at the first court after the first day of January in each and eve-
ry year, respectively be charged with, and present to the justi-
ces thereof, in writing, the names of all orphan children within
their county, that they know have not guardians appointed
them, and are not bound out to some trade or employment; and
all abuses, mismanagement and neglect of such guardians as live
within their county." Act 1762, ch. 5.
"It shall not be lawful for any house-keeper to harbor, or con-
ceal, or hire any orphan child, or children, without first obtain-
ing leave from some justice of the peace, under the penalty of
twelve dollars and fifty cents; one half to the use of the inform-
er and the other half to the use of the county: and the justice,
on granting permission, shall compel the person requiring the
same, (by recognizance) to bring said orphan child to the next
county court, which is hereby required to bind such orphan child
agreeably to law." Act 1784, ch. 34.
Form of the warrant.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, information has been given by A B, before me, G
H, an acting justice of the peace for said county, that one C D,
of said county, being a house-keeper, did harbor and keep an
orphan boy by the name of E F, without having procured leave
or license from a justice of the peace to do so, about his house:
These are therefore to command you to summon the said C D
to appear before me, or some other justice of the peace for said
county, to answer the complaint of said A B, who sues as well
for the use of said county as for himself, in a plea of debt, due
by penalty, of twelve dollars and fifty cents, for the above pre-
mises. Herein fail not. Given under my hand and seal, this
day of A. D. 18 [To be signed, &c.]
PENAL ACTIONS.
415
STOPPING ROADS TO PLACES OF PUBLIC WOR-
SHIP.
"Any person who shall, under pretence of owning the land or
lands adjoining or surrounding any church or meetingdiouse, or
other house or houses of religious public worship, stop cr oh-
struct, or cause the same to be done, the usual ways leading to
and from any of the aforesaid places of public worship, or spring
or wells thereby used, shall forfeit and pay the sum of twelve
dollars and fifty cents for every such offence, to be recovered
by action of debt, one half to the use of the person suing for
the same, and the other half to the poor of the county: Provided,
always, that nothing herein shall subject any person to the pen-
alty aforesaid, who shall surround any spring or well with a fence,
if such fence shall not absolutely render the passage to such
spring or well impracticable: and provided also, that no surround-
ing any piece of land, through which any of the aforesaid ways
shall lead, with a fence, shall subject any person to the said pen-
alty, if a passage shall be left to the church, meeting house, or
place of religious public worship, of the same width at least
that such way was usually of." Act 1785, ch. 24.
Form of a warrant for stopping such ways.
"State of Tennessee,) ss.—To any lawful officer to execute and
county.) return:
Whereas, information has been given by A B, to me, G H,
an acting justice of the peace for said county, that C D has
stopped up a road leading from to meeting-
house, by having built a fence across the same and thereby ob-
structing the road, inasmuch that persons desirous of passing and
repassing that way are compelled to go a great way round:
These are therefore to command you to summon the said C D
to appear before me, or some other justice of the peace for
said county, to answer the said A B of a plea of debt, of twelve
dollars and fifty cents, due by penalty, for the above premises.
Herein fail not. Given under my hand and seal, this
day of A. D. 18 ." [To be signed, &c.]
416
miscellaneous division.
STUD HORSES AND STUD COLTS.
"If any citizen or other person shall suffer any stud horse, or
stud colt over fifteen months old, to run at large, any justice of
the peace, on due application made to him, that such person's
stud horse or stud colt is running at large, is forthwith required
to issue his warrant, directed to any lawful officer of the county,
commanding him to summon the owner or owners of such
stud horse or stud colt running at large, as aforesaid, to appear
before some justice' of the peace of the county, and upon due
proof made to the justice against the owner or owners of such
stud horse or stud colt, suffering them to run at large, knowing-
ly and willingly, then and in that case the justice shall enter up
judgment against the defendant or defendants (in a sum) not ex-
ceeding twenty-five nor less than ' five dollars, with legal cost,
with a right of either party to appeal." Act 1803, ch. 20, sec. I.
"If any person shall drive stock to range out of the county
where such person may live, and any of such stock shall consist
of stud horses, or stud colts over fifteen months old, or any such
stud horse or stud colt shall be found running at large, contra-
ry • to the true intent and meaning of this act, the owner being
unknown, on due application and proof made to any justice of
the peace of said county, he shall direct such stud horse or stud
colt to be gelded, under the immediate direction of some person
acquainted with such operation; the expences attending which
shall he paid by the owner of such horse or colt, to be adjudged
by the court of the county where such proceedings shall be had;
and should any such horse or stud colt die, in consequence of
being gelded as aforesaid, the owner shall not be entitled to
recover any damages therefor." Ibid, sec. 2.
"All fines imposed by virtue of this act, shall be paid over by
the constable, or other officer receiving the same, to the county
trustee, wherein such fine shall have been imposed, and the same
shall be applied by the court to county purposes." Ibid, sec. 4.
It will be observed, that the first section denounces those who
shall knowingly suffer their stud horses or stud colts to run at
large. The following is the form of a warrant for such an act:
PENAL ACTIONS.
417
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, information is given to me, G H, an acting justice
of the peace for said county, by A B, that one C D, of said coun-
ty, knowingly permits and suffers a stud colt of his, which is
more than fifteen months old, to run at large: These are there-
fore to command you to summon the said C D to appear before
me, or some other justice of the peace for said county, to an-
swer the said county of a plea of debt not exceeding twenty-five
dollars, in consequence of the above premises. Herein fail not.
Given under my hand seal, this day of A. D.
18 ." [To be signed, &c.]
On the trial, prove his knowledge of the colt's running at
large, and that it is more than fifteen months old, and the coun-
ty will be entitled to recover.
The second section denounces the stud horse or stud colt
drove out of the county where the owner lives, to range, or where
such are found running at large, and the owner unknown, pro-
vided such stud horse or stud colt is more than fifteen months
old. The warrant for castration is as follows:
"State of Tennessee,)
county,) ss'
To E F, of said county, to execute this process:
Whereas, complaint is made to me, G H, an acting justice of
the peace for said county, upon the oath of A B, that there is
now running at large, in the county aforesaid, a certain grey
stud colt, branded with the letter E, which is more than fifteen
months old, the property of a certain C D, who resides in the
county of and which said stud colt he drove into this county
to range, and that the said colt is an annoyance to the neighbor-
hood: You are hereby authorized and directed to castrate and
geld the said stud colt forthwith. Herein fail not. Given under
my hand and seal, this day of A. D. 18 «"
[To be signed, &c.]
3 C
418
MISCELLANEOUS DIVISION.
STUD HORSES STANDING THE SEASON. *
"It shall hereafter be the duty of every person, whether a cit-
izen or a foreigner, who shall bring into this State any stud horse,
for covering mares, after the first day of January in each and
every year, to report such horse to the clerk of the county wherein
he shall stand, who shall issue a license to such applicant, grant-
ing to him the privilege of advertising and letting such horse to
mares for one season and no longer: Provided, before such license
shall issue, the applicant shall pay the clerk a sum equal to the
season of one mare, and the additional sum of fifty cents as a
fee of office, which money received for the State shall be account-
ed for by each clerk as other public moneys." Act 1805, ch. 38,
sec. 4.
"Any persons failing to comply with the requisitions of this
act, shall forfeit and pay the sum of fifty dollars, to be recovered
by action of debt, before any jurisdiction having cognizance
thereof, one half to the use of the State and the other half to
the use of the person who will sue for the same; and any person
imposing on the clerk a less sum for the use of the State than
that which he may receive for the season of one mare, shall for-
feit and pay the sum of fifty dollars, to be recovered as afore-
said." Ibid, sec. 5.
Form of a warrant for not listing a stud horse for taxation.
"State of Tennessee.) ss.—To any lawful officer to execute and
county,5 return:
Whereas, information has been given to me, G H, an acting
justice of the peace for said county, by A B, that one C D, of
county, is standing a stud horse by the name of
which he brought into the county first aforesaid, for the season,
covering mares, without having listed him for taxation, as requi-
red by law: These are therefore to command you to summon
the said C D to appear before me, or some other justice of the
peace for said county, to answer the said A B, who sues as well
for the State of Tennessee as for himself, of a plea of debt of
fifty dollars, due by penalty, by reason of the above premises.—
Herein fail not. Given under my hand and seal, this
day of A.D, 18 ." [To be signed, &c.]
penal actions.
419
Note.—The mode of listing the stud horse or jack kept for
mares, is altered by the act of 1815, chapter 203, from listing
them with the clerk and taking a license, to the mode of listing
them as other property declared taxable is to be listed, which
js with the justice of the peace in each captain's company; but
the penalty for failing to list such stud horse or jack remains as
before, and the same penalty for listing him at a price less than
the season.
TRADING WITH SLAVES.
"If any free person shall either buy or sell to any slave or slaves,
any kind of goods or commodities whatsoever, or any other thing,
without a permission in writing, setting forth the identical arti-
cle or articles such slave or slaves may have for sale, from the
master, mistress, or other person having the management of such
slave or slaves, every such free person shall, on conviction, for-
feit and pay the sum of twenty-five dollars, and be further liable
to pay all damages that may accrue in consequence of such
trading or trafficking, one half to the informer, and the other
half to the person injured, to be levied of his or her property
as other recoveries by law; and if the offender shall not have
sufficient property to satisfy the judgment, then such offender
shall be committed to close custody, and shall remain in prison
without bail or mainprise, for any time not exceeding three
months." Act 1788, ch. 7, sec. 1.
"If any citizen of this State shall trade with any slave with-
out a pass from his or her master, mistress or overseer, express -
ing the time when, and the business upon which they go, every
person so offending shall, for every such offence, forfeit and pay
to the owner of such slave the sum of ten dollars, recoverable
by action of debt before any justice of the peace in the county
in which the offence shall be committed." Act 1799, ch. 28,sec.I.
"If any person sell any spirituous liquors, or other drink capa-
ble of producing intoxication, to any slave or slaves, without a
permit in writing from the owner, or person having charge of
such slave or slaves, or shall permit any slave or slaves disorder-
ly to assemble at his, her or their house, or place of residence,
every person so offending fehall be fined in a sum not less than
420
MISCELLANEOUS DIVISION.
five nor more than ten dollars, to he recovered before any justice
of the peace of the county wherein such offence shall he com-
mitted, one half to the use of the person who shall sue for the
same, and the other to the use of the owner of such slave."—
Act 1813, ch. 135, sec. 1.
"If any person or persons offending against the provisions of
this act shall fail or refuse, at the time of the rendition of the
judgment, to pay the fine or judgment awarded against him,
her or them, such person or persons, so failing or refusing, shall
forthwith be committed, by order of such justice, to the jail of the
county, until the fine and costs be paid, (or secured,) or the jus-
tice may (at his discretion) issue execution, as in other cases."—
Ibid^ sec. 2.
"If any person shall either publicly or privately speak or ut-
ter any words in the hearing of any slave, or person of colour,
which, in their nature, will have a tendency to inflame the mind
of any slave, or induce him or them to insurrection, or to absent
him or herself from the service of their owners, for every such
offence shall forfeit and pay the sum of ten dollars, to be recov-
ered by action of debt before any jurisdiction having cogni-
zance thereof, one half to the use of the county, and the other
half to the person that will sue for the same." Act 1803, ch. 13,
sec. 1.
"In order to explain what words will constitute a crime in
contemplation of this act, it must be understood, that the per-
son uttering or speaking inflammatory words, such words must be
directed to and in favor of general or special emancipation, or
in direct or indirect terms to persuade any slave or slaves to re-
bel against the person or the lawful commands of his master or
mistress, or other person having due authority over him or them,
or directly encourages any plot or combination against any of
the laws of the United States or of this State, shall be liable as
aforesaid." Ibid, sec. 2.
"No person or persons shall knowingly permit any slave or
slaves to come, collect or assemble at his, her or their dwelling
house, negro house or houses, without a written pass from the
owner, overseer, or person in whose employ such slave or slaves
may be, setting forth his, her or their business and time of ah-
fence: every person so offending shall forfeit and pay the sum
fenal actions.
421
of ten dollars, recoverable before any justice of the peace of the
county in which such offence may be committed, one half to the
informer, and the other half>to the use of the county; and it is
hereby made the duty of every justice of the peace, on informa-
tion made to him of any such offence being committed within his
jurisdiction, forthwith to issue his warrant, directed to any law-
ful officer, to bring before him, or any other person in like of-
ficial capacity, said offender, to be dealt with as by this act di-
rected." Ibid. sec. 3.
*
"If any person shall hereafter entice or persuade any servant
or slave to absent him or herself from his or her owner's ser-
vice, or shall harbor or maintain, under any pretence whatsoev-
6r, a runaway servant or slave, such person shall, for every such
offence, forfeit and pay to the owner of such servant or slave,
the sum of fifty dollars, to be recovered by action of debt be-
fore any justice of the peace within the county where such of-
fence shall be committed, and be further liable to said owner in
an action of damages." Act 1799, ch. 28, sec. 2.
Form of a warrant for trading with a slave, prohibited by the ls^
section of the act of 1788, ch. 7.
"State of Tennessee,) ss.—To any lawful officer to execute and
/ county,^ return:
Whereas, information has been given to me, G H, an acting
justice of the peace for said county, by A B, of said county, that
one C D, of said county, did trade and traffic for, and buy of
one H, a slave for life, the property of the said A B, a fat shoat,
at and for the sum of one hollar and fifty cents- in store goods,
paid to the said slave, (the said slave then and there being un-
der the control of the said A B,) without a permit in writing set-
ting forth the articles to be sold: These are therefore to command
you to summon the said C D to appear before me, or some oth-
er justice of the peace for said county, to answer the said A B
of a plea of debt of twenty-five dollars, due by penalty, for the
above premises. Herein fail not. Given under my hand and
seal, this day of A. D, 18 [To be
signed, &c.]
Note.—If the suit be brought by any other person than the
pwner, or party injured by such trading, the warrant must re-
m
miscellaneous division.
quire the defendant to "answer A B, who sues as well for E F,
the party injured, as for himself."
The words " goods and commodities," include any species of
personal property.
Note.—The first section of the act of 1799, ch. 28, prohibits
a person from trading or trafficking with any slave for any thing
of his own manufacture, without such slave has a special pass
from his master, mistress or overseer. This prohibition is found-
ed on good reason: for a slave may have been laying up a stock
of his own wares for a long time, the better to dlguise his elope-
ment, as no one would suspect him as a runaway, loaded with
trays, or collars, or brooms, &c.
Form of a warrant for trading with a slave who has no pass.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, information has been given by A B, to me, G If,
an acting justice of the peace for said county, that C D, late of
said county, on the day of A. D. did trade
with a slave by the name of <G, the property of the said A B,
for two or three bushels of sweet potatoes, a fat pig, and a dozen
of hens, without a pass from the master or mistress of said slave,
or frUm his overseer, expressing the time when and the business
upon which the said slave was permitted to go abroad: These
are therefore to command you to summon the said C D to ap-
pear before me, or some other justice of the peace for said
county, to answer the said A B of a plea of debt of ten dollars,
due by penalty, for the above premises. Herein fail not. Given
under my hand and seal, this day of A. D.
18 ." [To be signed, &c.]
Form of a warrant for selling spirits, or other strong drink, to a
slave.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, information has been given by A B, to me, G II,
an acting justice of the peace for said county, that one C D, late
of said county, did sell spirits, to wit, whiskey, to a certain II, a
slave for life, the property of one E F, on the day of
A. D. 18- without a permit in writing to do so,
from the owner, or any other person having charge over said
PENAL ACTIONS.
423
negro slave: These are therefore to command you to summon
the said C D to appear before me, or some other justice of the
peace for said county, to answer A B, who sues as well for the
said E P as for himself, of a plea of debt of ten dollars, due by
penalty, for the above premises. Herein fail not. Given un-
der my hand and seal, this day of A. D. 18
(To be signed, &c;)
Form of a warrant for uttering words having a tendency to infame
the minds of slaves.
"State of Tennessee,) ss.—To any lawful officer to execute and
county ,5 return:
Whereas, information has been given by A B, to me, G H,
an acting justice of the peace for said county, that one C D,
of said county, did, on the day of A. D. 18
publicly speak, utter and publish certain words, in the presence
and hearing of divers slaves, calculated to excite and inflame the
minds of said slaves, and others, and induce to insurrection, that
is to say, "that all slaves were free born, and ought of right to
be free, and that the day was not far distant when they would
all be free again:" These are therefore to command you to
summon the said G D to appear before me, or some other jus-
tice of the peace for said County, to answer the said A B, who
sues as well for the county aforesaid as for himself, of a plea of
debt of ten dollars, due by penalty, for the above premises.—
Herein fail not. Given under my hand and seal, this
day of A. D. 18 ." [To be signed, &c.]
Form of a warrant under the third section of the act of 1803, ch.
13, for permitting slaves to collect and assemble at one^s house.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,^ return:
Whereas, information has been given by A B, to me, G H,
an acting justice of the peace for said county, that C D, late of
said county, did, on the day of A. D. 18
knowingly permit a slave by the name of John, with divers oth-
ers, slaves for life, the property of one E F, to collect and as-
semble at his dwelling house, in-said county, the said John or
bis associates then and there not having a pass in writing set-
ting forth his and their business and time of absence: These
are therefore to command you to summon the said C D to ap-
424
miscellaneous division.
pear before me, or some other justice of the peace for said coun-
ty, to answer the said A B, who sues as well for the county
aforesaid as for himself, of a plea of debt of ten dollars, due by
penalty, for the above premises. Herein fail not. Given under
my hand and seal, this day of A. D. 18 [To
be signed, &c.]
Form of a warrant for enticing and persuading a servant or slave
to absent himself from the service of his master.
"State of Tennessee,') ss.—To any lawful officer to execute and
county,5 return:
Whereas, information has been given by A B, to me, G II,
an acting justice of the peace for said county, that one C D, of
said county, did, on the day of A. D. en-
tice and persuade one B, a slave for life, to absent himself
from his master's service, he then and there being the property
and in the possession of the said A B: These are therefore to
command you to summon the said C D to appear before me,
or some other justice of the peace for said county, to answer
the said A B of a plea of debt of fifty dollars, due by penalty,
for the ahove premises. Herein fail not. Given under my
hand and seal, this day of A. D. 18 ." [To
be signed, &c.]
Note.—The form of the warrant for harboring a slave, or in-
dented servant, is the same as for enticing them away, with this
exception, that where the words "entice and persuade" are used,
the word ."harbor" must be inserted in its place. The word
"servant," applies as well to an indented servant as to a slave.
RUNAWAY SLAVES.
"If any servant or slave who shall be taken up as a runawa)
and brought before any justice of the peace, and cannot speak
English, or through obstinacy will not declare his or her owner,
such justice shall, in such case, and he is hereby required, by a
warrant under his hand and seal, to commit said negro slave or
runaway to the jail of the county wherein he or she shall be
taken up, and the sheriff or under sheriff of the county, in whose
custody the said runaway shall be committed, shall forthwith
PENAL ACTIONS.
425
cause notice in writing of such commitment to be set up on
the court house door of said county. When any runaway slave,
whose owner is supposed to he resident in another State, or re-
mote from the place where taken up, shall be committed to any
public jail of this State, the sheriff or keeper of the said jail
shall, by the first opportunity after such commitment, send a de-
scription of such runaway slave, together with the time of the
commitment, and the county where such runaway is committed,
to the printing press of the State or territory where such owner
may be presumed to live, and to some press or newspaper in this
State, for which he shall be reimbursed by the owner of said
slave. The sheriff, in the notice placed upon the court house
door, shall give a full description of said slave, and his clothing,
which said notice shall remain on the court house door for the
space of two months, unless the said runaway shall be taken
away by the owner sooner. And every sheriff failing to give
such notice as herein directed, shall forfeit and pay twelve dol-
lars and fifty cents; which said forfeiture shall and may be re-
covered, with cost, before any justice of the peace in this State,
by action of debt; the one half to the use of the county, and
the other half to the use of the person who will sue for the same.
Act 1741, ch. 24, sec. 29 and 30.
Form of the warrant to recover the above penalty.
"State of Tennessee, ) ss.—To any lawful officer to execute and
county,) return:
Whereas, information has been given by A B,before me, G II,
an acting justice of the peace for said county, that a certain
C D, late of said county aforesaid, sheriff, did, on the
day of A. D. 18 have committed to his custody, a
runaway, and that he so detained him many days, that is to say,
days, without having given notice in writing at the
court house, door, as required bylaw: These are therefore to
command you to summon the said C D to appear before me,
or some other justice of the peace for said county, to answer the
said A B, who sues as well for the county aforesaid as for him-
self, of a plea of debt of twelve dollars and fifty cents, due by
penalty, for the above premises. Herein fail not. Given under
my hand and seal, this day of A. D. 18 ."
[To be signed, &c.]
426
miscellaneous division.
FREE PERSONS OF COLOR ENTERTAINING
SLAVES.
"If any free negro or mulatto shall at any time be found in
company with any slave or slaves, at any unlawful meeting, or
shall harbor or entertain any slave without the consent of his or
her owner, such person being thereof convicted, shall forfeit and
pay a sum not exceeding twenty dollars, nor less than ten dol-
lars, for every such offence, to be applied to the use of the poor
in the county where such conviction shall take place." Act of
1806, ch. 32, sec. 4.
Note.—Those who have the care of the poor in each county
ought always to institute and carry on these suits, for the effect-
ing two objecls: 1st. That persons guilty of such crimes may
be restrained from a repetition of them. 2d. That if such of-
fences are committed, that the poor may be benefited thereby.
'If any negro or mulatto shall entertain any slave in his or
her house during the Sabbath, or in the night-time between sun-
set and sun-rise, he or she shall, for entertaining such slave, be
subject to a fine of two dollars and fifty cents for the first of-
fence, and five dollars for every subsequent offence, to be re-
covered, on conviction, before any justice of the peace, and ap-
plied to the use of the poor of the county in which the offence
shall be committed, saving to the party the same right of appeal-
ing as aforesaid. And in case the said free negro or mulatto shall
not be able to pay the fine aforesaid, the constable who shall
have attended at such conviclion shall hire out such free negro
or mulatto to the person who shall take him or her for the short-
est period of time in payment of such fine and cost—the s.tid
constable having previously advertised at least ten days, at the
door of the court house, and other public places in said county,
that such negro or mulatto would be hired out for the purpose
aforesaid; and the person who shall hire such free negro or mu-
latto shall be bound to pay, at the time of such hiring, the
amount of the cost and fine." Act 1787, ch. 6, sec. 2.
Form of the warrant to recover the above "penalty.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,y return:
Whereas, information has been given by A B, to me, G II, an
penal actions.
427
acting justice of the peace for said county, that oneC D, a free .
mulatto, on the day of A. D. 18 between
the hours of sun-set and sun-rise, was founcf. at an unlawful meet-
ing, and in company with two slaves for life, the property of
the said A B, and divers others, male and female, who were also
slaves for life: These are therefore to command you to take
the said C D, if to be found in your county, and him forthwith
hring before ine, or some other justice of the peace for said coun-
ty, to answer the complaint of the said A B, who sues for
the use of the poor of the county aforesaid, in a plea of debt of
twenty dollars and not less than ten dollars, due by penalty, for
the above premises. Herein fail not. Given under my hand
and seal, this day of A.D. 18 ." [To be
signed, &c.]
Note.—Any assembly of slaves not authorized by their own-
ers, is an unlawful assembly—in the night time especially; and
keeping a slave in your house for the night, giving him meat and
drink, would be an act of entertaining. The word "harbor,"
signifies to shelter as we.l as to entertain, and in that sense it
was used by the legislature. It means a kind of secret shelter-
ing and feeding.
The form of a warrant under the second branch of offences
will be the same, except the words "harbor," &c. must be used.
BREAKING THE SABBATH.
"All and every person or persons whatever, shall, on the
Lord's day, commonly called Sunday, carefully apply themselves
to the duties of religion and piety ; and no merchant, trades-
man, artificer, planter, laborer, or other person whatever, shall,
upon the land or water, do or exercise any labor, business, or
work of their ordinary calling, (works of necessity and charity
only excepted,) nor employ themselves, or permit others under
their care, either in hunting, fishing or fowling, nor use any
game, sport or play on the Lord's day, or any part thereof, up-
on pain, that any person so offending, being of the age of four-
teen years and upwards, shall forfeit and pay the sum of three
dollars, one half to the informer, and the other to the county."
Acts 1741, ch. 14, and 1803, ch. 47.
m
miscellaneous division.
Note.—It is the imperative duty of justices of the peace, upon
their own knowledge of such violation of the Lord's day, to is-
sue their warrant for the apprehension of the offenders, and have
them forthwith taken before a justice of the peace, and fined as
the law directs.
"If any person or persons shall profanely swear or curse, in
the hearing of any justice of the peace, or shall be convicted
of profanely swearing or cursing, by the oath of one or more
witnesses, or confession of the party before any justice of the
peace, every such offender shall forfeit and pay the sum of thir-
ty-one and a fourth cents for every such curse; and if any per-
son executing any public office shall profanely swear or curse,
being first convicted as aforesaid, such person shall forfeit and
pay the sum of sixty-two and a half cents for every oath or
curse." Act 1741, ch. 14, sec. 3.
"Every person convicted of drunkenness, by the view of any jus-
tice of the peace, confession of the party, or oath of one or more
witnesses, such person so convicted shall, if such offence was
committed on the Lord's day, forfeit and pay the sum of sixty-
two and a half cents, but if on any other day, the sum of thirty-
one and a fourth cents for each and every such offence." Ibid,
sec. 5.
"All and every justice of the peace within his or their respec-
tive counties, shall have full power and authority to convene he-
fore him or them any person or persons who shall offend in any
of the particulars before mentioned, in his or their hearing, or
on other legal conviction, of any such offence, and to impose
the said fine or penalty for the same, and to restrain or corn-
mit the offender to jail until the same be satisfied, or cause the
same to be levied by execution, and sale of the offender's goods,
returning the overplus, if any, to the owner; and in case such
offender be unable to satisfy such fine, to cause him to be put
into the stocks not exceeding three hours." Ibid, sec. 6.
"All information of the aforesaid offences shall be made with-
in ten days after such offence or offences were committed, and
not after." Ibid, sec. 7.
"All forfeitures assessed under this act shall be one half to the
use of the informer, and the other half to the use of the county
where the offence is committed." Ibid, sec. 8.
PENAI. ACTIONS.
429
Form of a warrant, by information, for hunting zoith a gun on the
Lord's day.
"State of Tennessee,) ss.—To any laAvful officer to execute and
county,) return:
Whereas, information has been given by A B, to me, G
II, an acting justice of the peace for said county, that one C D,
on Sunday, the day of in the year 18
was found with his gun hunting in the woods, and shooting
squirrels, at, to wit, in the county aforesaid: These are therefore
to command you to summon the said C D to appear before me,
or some other justice of the peace for said county, to answer the
said A B, who sues as well for the county aforesaid as for him-
self, in a plea of debt of three dollars, due by penalty, for the
above premises. Herein fail not. Given under my hand and
seal, this day of A, D. 18 [To be sign-
ed, &c.]
If the justice saw the defendant hunting and shooting through
the woods,, on the Sabbath day, his warrant must be made thus:
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, C D, of the county aforesaid, was found by me, on
the last Sabbath day, it being the day A. D,
18 with a gun,hunting and shooting squirrels in the woods:
These are therefore to command you to summon the said C D
to appear before me, or some other justice of the peace for said
county, to answer me, who sue as well for the county aforesaid
as for myself, of a plea of debt, of three dollars, due by pen-
alty, for the premises aforesaid. Herein fail not. Given under
my hand and seal, this day of A. D. 18 ."—
'[To be signed, &c.J
Form of a warrant, upon information, for swearing twenty profane
oaths.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, information has been given by A B, to me, G H,
an acting justice of the peace for said county, that one C D,
of said county, did, on the day A. D. 18
at, to wit, in the county aforesaid, then and there profanely
swear twenty profane oaths in the presence and hearing of di-
430
miscellaneous division.
vers good citizens of the county aforesaid: These are therefore
to command you to summon the said C D to appear before me,
or some other justice of the peace for said county, to answer
the said A B, who sues as well for the county aforesaid as for
himself, of a plea of debt of six dollars and twenty-five cents,
due by penalties, for the above premises. Herein fail not.—
Given under my hand and seal, this day of A. D.
18 ." [To be signed, &c.]
Note.—If the swearing the profane oaths be by a person ex-
ecuting any public office, the warrant must be varied thus:
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, information has been given by A B, to me, G II,
an acting justice of the peace for said county, that one C D,
late of said county, justice of the peace, did, on the day
of A. D. 18 at, to wit, in the county aforesaid, in the
presence and hearing of divers good citizens of the county afore-
said, swear ten profane oaths: These are therefore to command
you to summon the said C D to appear before me, of some oth-
er justice of the peace for said county, to answer the said A B
of a plea of debt, who sues as well for the county aforesaid as
for himself, of six dollars and twenty-five cents, due by penalty,
for the above premises. Herein fail not. Given under my
hand and seal, this day of A. D. 18 [To
be signed, &c.]
Note.—All judges, justices of the peace, sheriffs, coroners,
constables, and all military officers, all clerks, registers, rangers,
governor, secretary of state, and all others executing any office
of honor or profit, come under this warrant.
PROCESS OF ATTACHMENT.
An attachment is a process in our State which is partly com-
pounded of the English writs of attachment and distringas, which
issue against a person who disobeys a verbal summons to ap-
pear and answer the plaintiff out of the court of common pleas.
1. The attachment, or pone, is so called from the words of the
writ, "pone per vadium et salvus plegiose," (put by gage and safe
pledge.) This writ is grounded on the non-appearance of the
attachments.
431
defendant at the return of the original writ; and thereby the
sheriff is corTimanded to attach him, by taking gage—that is,
certain of hi s goods, which he shall forfeit if he doth not ap-
pear; or by making him find safe pledges or sureties, who shall
be bound in case of his non-appearance. If, after attachment,
the defendant neglects to appear, he not only forfeits this se-
curity, but i» moreover to be further compelled by—2. A writ
of distringas, (or, distress infinite,) which is a subsequent writ,
commanding the sheriff to distrain the defendant from time to
time, and co ntinually afterwards, by taking his goods, and the
profits of his lands, which are called issues, and which, by the
common law^ he forfeits to the King if he doth not appear.—
But now the issues may be sold, if the court so direct, in order
to defray the3 reasonable cost of the plaintiff.
The mode of proceeding under our attachment laws has been
very unsettled. until lately; but now the courts seem to have come
to a correct Lnterp relation of them. The 19th section of our
leading statufte (Act 1794, ch. 1) runs thus:
"Upon any^ complaint being made on oath to any of the judges
of the superiaar courts of this State, (now the circuit judges) or
to any justicee of any of the county courts, by any person or
persons, his, Bier or their attorney, agent or factor, that any per-
son hath removed, or is removing him or herself out of the coun-
ty privately, or so absconds or conceals him or herself that the
ordinary prooess of law cannot be served on such debtor, and if
such plaintiff^ his, her or their attorney, agent or factor, further
swears to the . amount of his debt or demand, to the best of his, her
or their knowDedge and belief, it shall be lawful for such judge or
justice, and he is hereby empowered and required to grant an at-
tachment agavinst the estate of such debtor, wherever the same
may be founcB, or in the hands of any person or persons indebt-
ed to, or haviang any of the effects of the defendant, or so much
thereof as shaall be of value sufficient to satisfy the debt or de-
mand, and coost of such complaint, which attachment shall be
returned to thae court where the suit is cognizable, and the same
proceedings sEhall be had thereon as on judicial attachments:
Provided, alwaays, that every such judge or justice, before grant-
ing such attachment, shall take bond and security of (he party
for whom it slUiall be issued, his, her or their attorney, agent or
MISCELLANEOUS DIVISION.
r
factor, payable to the defendant, in double the sum for which the
complaint shall be made, conditioned for satisfying all costs
"which shall be awarded to said (defendant, in the case the plain-
tiff shall be cast in the suit, and also all damages which shall
be recovered against the plaintiff in any suit or suits which
may be brought against him for wrongfully suing, out such at-
tachment, which bond, together with the affidavit of the party
complaining, subscribed with his proper name, shall be returned,
by the judge or justice taking the same, to the court to which the
attachment is returnable; and every attachment issued without
bond and affidavit, taken and returned as aforesaid, shall be aba-
ted on the plea of the defendant."
Several questions present themselves under this section—
First. For whom may an attachment issue? Second. For what
amount may an attachment issue? Third. Against whom may
an attachment issue? Fourth. Upon what terms may it issue?—
Fifth. And upon what may it be levied?
First. For whom may an attachment issue?—1. It may issue for
any citizen of the State, but not for the citizens of the other
States; they have no right to the process of attachment. 2.—
The citizen must have a debt or demand capable of being re-
duced to some amount certain, so as to be sworn to. The debt
must be a debt liquidated and evidenced by bond, note, bill, or
settled account signed by the party to be charged thereby, or
for goods, wares and merchandize sold and delivered, or for
work and labor done and performed, capable of being rendered
certain. But for an unascertained injury, as to amount, it can-
not issue to any one, as for a supposed injury by verbal or writ-
en slander, assault and battery, false imprisonment, trespass
upon personal or real property, and the like, or the non-pcrfor-
mance of any duty where an uncertain damage may have been
sustained; but shall only issue when the requisite affidavit is
made.
Second. For what amount may an attachment issue!—It may is-
sue for any amount, from one cent to a million, or millions. The
authority to issue extends to any amount; but not so as to the
tribunal where the attachment is to be returned: that must, in a
great degree, depend upon the amount sworn to be due—for
attachments.
433
the attachment shall be made returnable to the court where the
suit is cognizable, whether a justice's court, the county court or
the circuit court. Which attachment, when levied on property
of the right kind, and returned to the proper tribunal, shall be
deemed a leading process in the cause.
Third. Against whom may an attachment issue?—1. It may is-
sue against any one who hath privately removed him or herself
out of the county. 2. Against any person who is in the act of
privately moving him or herself out of the county. 3. Against
any person who so absconds that the ordinary process of the law
cannot be served on him, her or them.
Note.—The word "abscond" will not bear the interpretation
generally put upon it by those who are not particular as to the
words they use to communicate their ideas: but ia legal contem-
plation, it means to hide and slip about in any manner, to elude
the regular process of the law, and is nearly the same with the
word conceal, which signifies to hide or keep secret. From this
view, it will be plain, that no attachment can issue where the
ordinary process of the law can be served on the person of the
defendant; nor can it issue against the property of a debtor,
who is living quietly in another county; nor against a person
who has moved away openly, and without secrecy or contrivance
to give a false colour to his removal.
Fourth. Upon what terms may an attachment issue?—1. It may
issue upon the plaintiff, his agent, attorney or factor, swearing—
First, That the person against whose estate the attachment is
required, has secretly and privately removed himself out of the
county; or—Second, That he is removing himself privately
out of the county; or—Third, That he so absconds and con-
ceals himself that the ordinary process of the law cannot be
served upon hipn. 2. And further swear to the amount of his
debt or demahd, to the best of his knowledge, by affidavit, sign-
ed with the affiant's proper name. And—3. Upon the appli-
cant giving bond and security, in double the sum sworn to by
the applicant, payable to the defendant, conditioned as in the
form hereafter presented.
Fifth. And upon what may an attachment he levied?—1. If the
attachment issues for an amount cognizable before a justice of
the peace—to wit, twenty dollars, or under, (as a justice of the
3 E
434
MISCELLANEOUS DIVISION.
peace cannot hear, try and determine any matter under an at-
tachment where the amount exceeds twenty dollars)—the at-
tachment must be levied on personal property, goods or money,
to be found in the county, or in the hands of a garnishee who re-
sides in the county, or may be served with a garnishee summons
in the county. It cannot be levied on lands, bank stock, or up-
on debts not due in the hands of the garnishee. 2. But if the
attachment is returnable to the court of pleas and quarter ses-
sions, or to the circuit court, it may be levied on the real or per-
sonal estate of the defendant, if to he found in the county, or
any debts, goods, money or effects, (if the debts are due) in the
hands of any garnishee, or other person, within said county, or
upon whom a garnishee summons may be served in the county.
The county and circuit courts have now a concurrent jurisdiction
of all debts and money demands; but at the passage of the attach-
mentlaw we are now discussing, it was not so: the old superior
courts (in the place of which the circuit courts have been intro-
duced) could not exercise an original j urisdiction over any sum
less than one hundred pounds; therefore, the courts of pleas and
quarter sessions had an exclusive original jurisdiction over all
sums between twenty dollars and one hundred pounds, (two
hundred and fifty dollars,), where the parties both lived in the
same district. It has been solemnly determined by the supreme
court, that the several laws increasing the jurisdiction of justi-
ces of the peace, do not extend to attachments; and by the same
rule, the county courts now have their original jurisdiction up-
on attachments, unless expressly otherwise authorized by same
act of assembly, over all sums between twenty and two .hund-
red and fifty dollars. For, before the passage of the act of the
16th November, 1809, ch. 49, the court of pleas and quarter ses-
sions had exclusive original jurisdiction over all sums between
twenty and two hundred and fifty dollars; but the 4th section of
the act of 1809, gives the circuit courts "a concurrent jurisdic-
tion over all civil causes then cognizable in the courts of pleas
and quarter sessions." How shall the circuit court have this con-
current jurisdiction? Shall it be by attachment as well as other
original process? The act does not in express words say so, any
more than the statutes increasing justices' jurisdiction say their
increased jurisdiction shall take with it attachments as well as
attachments.
435
warrants and summons. This jurisdiction of the circuit court is
taken away, and the county court restored to her former juris-
diction, by the act of 1811, chapter 72, and the concurrent ju-
risdiction of the circuit court restored by the act of 1813, chap-
ter 78. But there are no express words as to attachments, but
leaves the matter as before. If the idea be a correct one, that
the several acts increasing a magistrate^ jurisdiction do not ex-
tend to attachments, then I think it equally clear, that over all
gums between twenty and two hundred and fifty dollars, where
the suit is commenced by attachment, the courts of pleas and
quarter sessions have the exclusive original jurisdiction; and,
therefore, I would recommend all attachments predicated on af-
fidavits, for sums of money between twenty and two hundred
and fifty dollars, to be returned only to the county courts. All
sums above that amount may be returned to either the county
or circuit courts.
"And for the convenience of creditors, and others who may
be injured as aforesaid, and to remove all doubts with respect to
the authority of the justices of the court of pleas and quarter
sessions in issuing attachments: Be it enacted, that it shall and may
be lawful for any justice of the county court, upon complaint
made to him by any person or persons, as aforesaid, to issue at-
tachments under the rules'and regulations before mentioned, and
make the same returnable to any of the said courts where the
same is cognizable." Act 1794, eh. 1, sec. 20.
Note.—This power being given to a justice of .the peace,
does not take away the power of the judges of the circuit courts
to issue attachments.
"When any person who shall be an inhabitant of any other
government or State, so that he cannot personally be served with
process, shall be indebted to any person, a resident of this State,
and has any estate within the same, any of the said judges
or justices may grant an attachment against the estate of such
foreign person, under the rules, restrictions and regulations be-
fore mentioned; the same proceedings may be had thereon; and,
in case of the death of any debtor residing without the limits,
leaving lands or property therein, the creditor resident within
the State shall, in like manner, be entitled to recover by attach-
ment against the executors and administrators, and execution
436
miscellaneous division.
shall issue accordingly, against the property so left within the
government." Ibid, sec. 2i.
Note.—It would seem that this section gives each. tribunal a
right to hear and determine cases against foreigners, as well as
against any one of the citizens of the county wherefthe attach-
ment issues; but to understand its true meaning, and to see who
may try a cause upon an attachment against a citizen of another
State, we must see whether a justice of the peace can try and
determine such case, by reference to the 56th section of this act,
which reads thus: "That any one justice of the peace, in cases
where by this act he has jurisdiction, may issue an original at-
tachment against the estate of any absconding or absent debtor,
upon the oath of any plaintiff, his agent or attorney, directed to
a sheriff, or any constable of the county, first taking sufficient se-
curity, as in other cases of attachments, and the proceedings
thereon shall be in a summary manner as on a warrant, and the
defendant may replevy the goods attached, and either party
may appeal from the judgment of the justice, in the manner as
hereinbefore directed."
The language of this section is almost word for word with the
73d section of the act of 1777, chapter 2; and upon that we
have the opinion of the supreme court of our own State. Say
the supreme court: "The section says," may issue any original
attachment against the estate of any absconding or absent debt-
or, upon the oath of the plaintiff,' &c. This clause limits the
power in reference to the person over whom it is to be exerted;
or, in other words, against what defendant the attachment may
be issued; and hence the question raised, is, who is an absent
debtor? And it has been strongly insisted upon by the defend-
ant's counsel, that 'absent debtor'is synonymous with 'inhahi-
tant of any other government.' Although this question has been
much agitated upon argument, it seems to me to have no real
difficulty in it. Its true meaning and import must, as it ought
to, depend upon the act itself, taking its whole context together.
The main object of the act, as its caption indicates,, is the es-
tablishment of courts of law, and regulating the proceedings
therein. One of these proceedings is the process of original
attachment. There are two classes of persons against whose
property this process is authorized. The act specifies them by
attachments*
437
particular description, different, distinct and incapable of being
confounded together. The description of one class is found in
section 25, and is in these words: ' Any person who hath re mo-
ved, or is removing him or herself out of the county privately, or
so absconds or conceals himself or herself that the ordinary pro-
cess of the law cannot be served on such debtor." The descrip-
tion of the second class is found in section 27, part second:
4 When any person who shall be an inhabitant of any other gov-
ernment, so that he cannot personally be served with process,
shall be indebted to any person, a resident of this State; and
hath estate within the same, any of said justices may grant an
attachment against the estate of such foreign person.' These
are the description of the persons against whose property cog-
nizance is given to the superior courts. In giving cognizance
to the county courts, the act hath withheld one of the two class-
cs from their jurisdiction—to wit, the inhabitants of other gov-
ernmcnts—giving them jurisdiction of the first class only, in
these words, (see section 72:) 'Justices of the county court shall
have power to grant attachments, cognizable in the county courts,
against the estate of any person absconding or concealing him-
self, or removing out of the county privately.' Comparing these
descriptions of the first class, where jurisdiction is given to the
superior courts and to the county courts, with the description
giving jurisdiction to the justices of the peace, no substantial
difference appears, or is to be found; there is barely, and but
barely, a nominal one—that is, the word ' absent' is used for the
words ' removed or removing' in the former. Now, in these sec-
tions of the act, from what is the debtor 'removed or removing
out of the county?' Is it not from his dwelling, residence, or
usual place of. abode in the county, out of the territorial depart-
ment where he owes his civil obligations, and ought to render his
civil duties as a member of the political body, the common-
wealth, and where, in case of default, the process of the court
runs to compel performance. And who is an absent debtor?
What is the debtor absent from ? Is it not absent from dwel-
ling, residence and place of abode, out of the county, so that the
ordinary process of the court cannot be served on him." Den,
lessee of Hodges, vs. Deaderick's executors, 1 Yerg. Rep. 133.
438
MISCELLANEOUS DIVISION.
I have here given the opinion of the supreme "court at some
length, upon their interpretation of the identical same words in
the statute of 1777, which show that a justice of the peace, nor
county court, can exercise any jurisdiction by attachment over
the estate of a citizen of another State. I would have come to the
same conclusion had I not have seen the opinion of the supreme
court, but for the several acts of assembly which have made the
jurisdiction of the circuit and county courts concurrent in most
civil suits. But certain it is, a justice of the peace out of court
has no jurisdiction in such a case.
"When any goods or other estate shall be attached by virtue
of any attachment, whether judicial or original, it shall and may
be lawful for the defendant or defendants, his, her or their at-
torney, agent or factor, to replevy the same, by giving bond
with sufficient security to the sheriff or other officer serving such
attachment, which said bond the sheriff or other officer is here-
by empowered and required to take, to appear at the court to
which such attachment is returnable, and to abide by, perform
and satisfy the order and judgment of such court; and when
the estate attaxhed shall, by three justices of the county court,
to be summoned by the sheriff for that purpose, be certified on
oath to be perishable, and the person or persons to whom it
belongs, his, her or their attorney, agent or factor shall not with-
in sixty days after serving such attachment, replevy the same,
then such estate shall be sold at public vendue, by the sheriff or
other officer, he having first advertised such sale at the court
house and other public places in his county, at least twenty days
before the sale, and the money arising by such sale shall be lia-
ble to the judgment obtained upon such attachment, and depo-
sited in the hands of the clerk of the court to which the process
shall be returnable, there to await the event of such judgment.
And where the sheriff or other officer shall serve an attachment in
the hands of any person or persons supposed to be iudebted to,
or supposed to have any of the effects of the party absconding,
or residing out of the government, he shall at the same time
summon such person or persons as a garnishee or garnishees, in
writing, to appear at the court to which the attachment shall
be returnable, within the first four days of the first term thereof,
ATTACHMENTS.
439
there to answer upon oath, what he or she is indebted to the de-
fendant, and what effects of the defendant he or she hath in
his or her hands, and had at the time of serving such attachment,
and what effects or debts of the defendant there are in the hands
of any other, and what person, to his or her knowledge or be-
lief; and where any attachment shall he served in the hands of
any garnishee, in manner aforesaid, it shall be lawful, upon his
or her appearance and examination, (in writing, taken down
word for word as spoken by the garnishee,) to enter up judgment
and award execution against any such garnishee for all sums of
money due to the defendant from him or her, and for all effects
and estate of any kind belonging to the defendant, in his or her
possession or custody, for the use of the plaintiff, or so much
thereof as shall be sufficient to satisfy the debt and costs, and
all charges incident on levying the same; and all goods and ef-
fecfs, whatever, in the hands of any garnishee or garnishees, be-
longing to any defendant, shall be liable to satisfy the plaintiff's
judgment, and shall be delivered to the sheriff or other offi-
cer serving the attachment. And where any garnishee sum-
mons shall he returned by the sheriff or other officer, summoned
in manner aforesaid, and shall fail to appear and discover upon
oath, as by this act is directed, it shall be lawful for the court, af-
ter solemnly calling the garnishee, and such court is hereby au-
thorized and required to enter a conditional judgment against
such garnishee, and upon judgment, so entered, a scire facias
shall issue against such garnishee, returnable to the next term,
to show cause, if any he or she has, why final judgment should
not be entered against him or her; and upon such scire facias
being duly executed and returned, if such garnishee shall fail to
appear at the next term, and discover upon .oath, in manner
aforesaid, the court shall confirm such judgment, and award ex-
ecution for the plaintiff's whole judgment and costs; and if upon
examination of any garnishee it shall appear to the court that
there is any of the defendant's estate in the hands of any person
or persons who have not been summoned, such court shall, upon
motion of the plaintiff, grant a judicial attachment, to be levied in
the hands of such person or persons having any of the estate of
the defendant in his, her or their custody or possession, who shall
440
miscellaneous division.
appear and answer, and be liable as other garnishees." Act of
1794, ch. 1, sec. 22.
"It shall be lawful for any person against whose estate an at-
tachment hath issued, as aforesaid, his or her attorney, agent or
/actor, at any time before final judgment entered, or writ of en-
quiry awarded and executed, upon giving special bail, to replevy
the estate so attached, and plead to issue, so that the plaintiff is
not thereby delayed of his trial. No judicial attachment shall
be issued against the estate of any person residing without the
limits of this State, unless such process is grounded on an origi-
nal attachment, or unless the leading process in the suit has
been executed on the person of the defendant when within the
State." Ibid, sec. 23.
Note.—All that has been said in the two last sections upon
the subject of attachments, garnishees and scire facias, is alone
applicable to such proceedings in courts of record, and not to
proceedings before a single justice of the peace; but the follow-
ing sections say all about a magistrate's proceedings:
"Any justice of the peace, in ca^es where by this act he has
jurisdiction, may issue an original attachment against the es-
tate of any absconding or absent debtor, upon the oath of the
plaintiff, his agent or attorney, directed to the sheriff or any con-
stable of the county, first taking security as in other cases of at-
tachment, and the proceedings thereon-shall be in a summary
way in the same manner as on a warrant, and the defendant
may replevy the goods attached, and either party may appeal
from the judgment of the justice in manner as hereinbefore di-
rected." Act 1794, ch. 1, sec. 56.
"When any justice of the peace shall issue an attachment
against an absconding debtor, he shall issue summons for garni-
shees in the same manner as prescribed by the first section of
this act—[the first section of the act authorizes the officer into
whose hands an execution has come to issue garnishee summons
for any one whom he may have good ground to believe has any
money, goods or effects of the execution debtor in his hands, or
for any one who may be indebted to the said defendant,]—and
proceed in the same way upon all sums over which he has ju-
risdition,to award judgment and issue execution, as is there laid
ATTACHMENTS.
441
down, any law to the contrary notwithstanding." Act 1815, ch.
20, sec. 3.
The attachment shall be of the following form:
"State of Tennessee,)
county,5 SS'
To the sheriff or any constable of said county—Greeting:
Whereas, A B [or A B, agent, factor or attorney of
as the case may be,] hath complained on oath to me, G H, an
acting justice of the peace for said county, [or one of the judg-
es of the circuit courts of law and equity in and for the State
aforesaid,] that one E F is justly indebted to him [or the said A
B] to the amount of dollars, due by note under seal; and
oath also having been made, that the said E F hath removed
himself privately [or is about to move himself privately out of
the county aforesaid; or so absconds or conceals himself that the
ordinary process of the law cannot be served upon him; or that
the said E F is an inhabitant of the State of ] and the
said A B having given bond and security according to the di-
rections of the act of the general assembly in such cases made
and provided: We therefore command you, that you attach the
estate of the said E F, if to be found in your county, or so much
thereof, repleviable upon security, as shall he of value sufficient
to satisfy said debt and cost, according to the complaint; and
such estate, so attached in your hands, to secure, or so to provide
that the same may be liable to further proceedings thereon, to
be had at the next circuit court, [or court of pleas and quarter
sessions] to be held for said county at the court house in the town
of on the Monday of next, so as then
and there to compel the said E F to appear and answer the above
complaint of the said A B; when and where you shall make
known to the said court how you shall have executed this writ.
Witness my hand and seal, this day of A. D.
18 G H, [n.s.]
Justice of the Peace."
The bond given upon obtaining such attachment shall be of
the form following, to wit:
"Know all men by these presents, that we, A B and C D, all
of the county of are held and firmly bound unto E F, in
the sum of dollars, to be paid to the said E F,his cer-
3 F
442
miscellaneous division.
tain attorney, executors, administrators or assigns. For which
payment, well and truly to be made, we bind ourselves, and each
of us, our and each of our heirs, executors or administrators,
jointly and severally, firmly by these presents. Given under our
hands and seals, this day of A. D. 18
The condition of the above obligation is such, that whereas
the above bounden A, B hath, the day of the date hereof, pray-
ed an attachment, at the suit of himself, against the estate of the
above named E F, for the sum of dollars, and hath ob-
tained the same, returnable to the next circuit court [or court
of pleas and quarter sessions, as the case may be,] to be holden
for the county aforesaid, on the Monday of next,
at the court house in the town of Now, if the said A B
shall prosecute his said suit with effect, or in case he fail therein,
shall well and truly pay and satisfy the said E F all such cost
and damages as shall be awarded and recovered against the
said A B, his heirs, executors and administrators, in any suit or
suits which may be hereafter brought, for wrongfully suing out
said attachment, then the above obligation to be void, otherwise
to remain in full force and effect. Given under our hands and
seals, the date above written. A B, [l.s.]
Test, C D, [l.s.]
G H, Justice of the Peace J
"No attachment shall be abated for want of form, if the essen-
tial matter expressed in the foregoing precedent be set forth in
such attachment." Act 1794, ch. 1, sec. 24.
"In all suits commenced or prosecuted by attachment against
the ^estate of persons residing out of this State, the court to
which the same shall be brought shall stay all proceedings in
such suits for so long time as they may think necessary, not less
than six months nor exceeding one year from the time of the re-
turn of such process. And where it can be conveniently done,
notice shall issue from the court to the defendant, and if the
defendant appear, put in bail, and plead, within the time limit-
ed for his appearance, in such case his estate shall be liberated,
and any garnishee discharged. And it shall be lawful for the
jury to give, in damages, legal interest upon the plaintiff's re-
covery, during the time of such extraordinary continuance, even
ATTACHMENTS.
443
ill cases where the interest is not usually allowed in the courts."
Ibid, sec. 25.
Form of a garnishee summons, issued by a justice of the peace, when
he has granted an attachment.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,5 return:
Whereas, an attachment has this day been issued by me, at
the instance and in- favor of A B, against the estate of C D, for
the sum of dollars, and whereas it is desired by said
plaintiff, that E F, a citizen of said county, be summoned as a
garnishee: These are therefore to command you to summon
the said E F to appear before me, or some other justice of the
peace for said county, where said attachment shall be returned,
to answer upon oath, in writing, what he is indebted to the said
C D, at the time of serving this garnishment, and what debts or
effects of the defendant's there are in the hands of any other, and
what person, to his knowledge or belief. In this he shall not
fail, under penalty of having a conditional judgment rendered
against him for the full amount of the plaintiff's demand. Given
under my hand and seal, this day of A.D. 18 ♦"
[To be signed, &c.]
The first section of the act of 1815, chapter 20, is in these
words:
"That from and after the passage of this act, whenever any
justice of the peace shall issue an execution against any proper-
ty belonging to the defendant, it may be lawful for the officer
into whose hands said process may come, to summon any person
or persons as garnishees, in writing, to appear before said jus-
tice, to answer upon oath what he or she is indebted to the de-
fendant, and what debts or effects he or she hath in his or her
hands, belonging to the defendant, at the time of serving said
garnishment, and what debts or effects of the defendant there
are in the hands of any other person, and what person, to his
knowledge and belief; and it shall he lawful, upon his appear-
ance and examination, (in writing,) for said justice of the peace
to enter up judgment (for the amount acknowledged to be due
by the garnishee,) and award execution against such garnishee
for all sums of money due to the defendant by him or her, and
444 miscellaneous division.
for all effects and estate of any kind, belonging to the defend-
ant, in his or her possession or custody, for the use of the plain-
tiff, or so m'uch thereof as will be sufficient to satisfy the debt
and costs, and all charges incident on levying the same; and all
goods and effects whatever, in the hands of any garnishee, be-
longing to any defendant, shall be liable to satisfy the ^plaintiff's
judgment, from the day on which said garnishee is summoned:
and so soon as the property is declared to be the property of the
defendant, it shall be delivered up to the officer serving said gar-
nishment; and when any garnishee is returned, summoned in
said manner, as contemplated by this act, and shall .fail or re-
fuse to appear and discover upon oath, in manner aforesaid, it
shall he lawful for said justice to have said garnishee solemnly
called," and if he does not appear, to enter up a conditional
judgment against said garnishee, and upon such judgment a no-
tice shall issue to such garnishee, returnable at such time as the
justice may, in his discretion, require, to show cause, if any
he hath, why final judgment should not be entered against
him; and upon said notice being duly returned and executed, if
said garnishee shall fail, at the time required, to appear and dis-
cover upon oath, in manner above described, the said justice
shall confirm said judgment, and award execution for the plain-
tiff's whole demand, with costs. But if upon the appearance and
examination of said garnishee, it shall appear to the justice of
the peace there is any of the defendant's estate in the hands of
any other person or persons who have not been summoned, such
justice shall, upon the application of the plaintiff, or his agent,
issue a summon to garnishee said persons to come forward and
declare on oath, in the same manner as other garnishees by this
act are required to do, and shall be subject to the same rules
and regulations as are required by this act."
Note.—The form of this last garnishee summon spoken of,
must be issued by the justice, and not by the officer holding in
his hands an unsatisfied execution; the form of which will be
the same as the one to be issued by the justice of the peace up-
on an attachment.
It will also be necessary, when application is made for an at-
tachment, for the justice in the first place to draw out the affi-
attachments.
445
davit upon which the attachment is to be predicated with great
care, in any case, and to note with great care whether the de-
fendant has privately removed himself out of the county, which is
the first cause for which an attachment can issue; or is removing
himself privately out of the county, which is the second cause;
or so absconds or conceals himself that the ordinary process of the
law cannot be served on him, which is the third cause. The
56th section of the act of 1794 speaks of absent debtors, but these
absent debtors are such only as have secretly removed themselves.
It is obvious to the reader, that all these various causes can
scarcely occur in any one case. They arc causes generally in-
dependent of each other, and therefore all of them ought not
to be placed in the affidavit, or the attachment predicated there-
on; and as the person who swears to the affidavit is made to
swear to facts which are not true: as a man cannot swear tru-
ly when he swears in the alternative that one of three facts are
true, but he cannot tell which one of them is true. It is the
essence of perjury, that the facts sworn to are unknown to the
affiant. The affidavit and attachment must contain the true
cause, and none other, for which the attachment is prayed.
The affidavit for the purpose of obtaining an attachment is
of the form following:
"State of Tennessee,)
county,) SS'
Personally appeared A B before me, G PI, an acting justice of
the peace for said county, and made oath that C D is justly in-
deb ted to him in the sum of dollars, after giving all
just credits, and that the said C D has privately removed him-
self out of the county so that the ordinary process of the law
cannot be served upon him; he therefore prays process of at-
tachment against the estate of the said CD. A B.
Sworn to and subscribed before me,)
the day of A. D. 18 )
G H, Justice of the Peace.
Note.—If the defendant is in the act of privately removing,
say so; or if he absconds and conceals himself, say so. But re-
collect, no attachment can properly issue where the ordinary'
process of the law can be served on the defendant; nor can any
446
miscellaneous division.
attachment issue upon a debt which is not due. See act of 1815,
ch. 20, sec. 1.
When a garnishment is returned executed, which has issued
upon an attachment, it is necessary to ascertain the debt, and
to render a judgment against the principal debtor, before any
judgment can be entered up against the garnishee.
• It will be further observed, that no judgment can be rendered
against a garnishee unless the demand against the original debt-
or is made out to be a money demand, as the act of assembly only
authorizes the justice of the peace, or court, as the case may be,
"to give judgment and award execution for all sums of money
due the defendant by him or her." And if a man summoned as
a garnishee shall owe another a demand, payable in specific
articles, these articles do not become the property of the execu-
tion or attachment debtor until they are delivered to him; and
therefore the garnishee has none of the property or effects of
the defendant in his hands. The property must belong to the de-
fendant before an execution can be levied on it. See "Prop-
erty" and "Contracts."
The form of a judgment upon an attachment, without a re-
plevy by the defendant, is as follows:
"A BA
VS. > attachment.
C D.S
At my own house, in the county of on this
day of A, D. 18 I J, an acting constable for said
county, returned before me an attachment levied on the prop-
erty of the defendant, and which property remains unreplevied,
and the plaintiff producing here the defendant's bill single for
the sum sworn to in the affidavit upon which the said attach-
ment issued, and which said bill single is payable from the said
defendant to the said plaintiff, and was due at and before the
issuance of the said attachment: It is therefore considered by
me, that the said plaintiff recover of the said defendant the
sum of dollars, for his debt and interest, arid
for his costs in this cause accrued, for which an order of sale
may issue. Given under my hand and seal, the date above
written. G H, [l.s.]
Justice of the PcacrJ
ATTACHMENTS.
447
lere the property is replevied (which may he done any
lefore judgment, by the defendant, his agent or attorney,
bsequent proceedings will he in every respect the same as
h the defendant had been summoned originally to appear
irrant.
such case the judgment for the plaintiff will he as fol-
2 of Tennessee,)
county, $ ss'
my own house, in said county, this day of
18 the parties appearing, and the defendant having
ried the property levied upon by attachment according to
and the plaintiff producing the defendant's bill single,
payable to himself, for the sum of dollars, the
at sworn to be due in the affidavit upon which the attach-
issued, and the defendant not being able to gainsay the
:iff's demand: Therefore, it is considered by me, that the
iff recover of the said defendant the sum of
s for his debt and interest, and the further sum of
s for his cost, for which an execution may issue." [To
pied, &c.]
e replevy bond is of the form following:
fe, C D, I J and L M, all of the county of are
and firmly bound unto A B, his heirs, executors and ad-
trators, or assigns, in the sum of dollars, for which
ent, well and truly to be made and done, we bind our-
>, our heirs, administrators and executors, jointly and seve-
by these presents. Given under our hands and seals, this
day of A. D. 18
e condition of the above obligation is such, that whereas
tachment was issued by G H, an acting justice of the peace
.id county, upon the application of, and at the suit of A
;ainst the estate of the said C D, and hath been levied up-
e goods of the said C D, which have been restored to him
giving this bond: If, therefore, the said C D shall appear
e next court of pleas and quarter sessions, [or circuit court]
held for said county [or before G II, an acting justice of
>eace for said county, as tie case may be,] on the
of next, and answer the said attachment, and abide
448
miscellaneous division.
by and perform the order or judgment of the said court [or jus-
tice of the peace, as the case maybe,] therein; then this obliga-
iion to be void and of no effect, otherwise to remain in full force
and virtue. Given under our hands and seals, the date above
written." [To be signed and sealed by the parties.]
Form of a judgment against a garnishee, who is summoned, and
appears and answers.
"A BA
vs. > original attachment.
C V.)
In this case, I J, an acting constable, returns here, before me,
GII, an acting justice of the peace for said county, an execution
which issued, and was placed in the hands of said constable, in
favor of the said plaintiff, and against the said defendant, and
garnishee summons made known to one E F, to appear on this
day before me, at my own house, in said county, and upon his
examination, taken before me in writing, he says he is indebted
by book account to the said defendant in the sum of seventeen
dollars and fifty cents, which is now due in cash to the said de-
fendant, and there remains more than the sum of seventeen dob
lars and fifty cents: It is therefore considered by me, that the
said plaintiff recover of the said E F, garnishee, the said sum of
seventeen dollars and fifty cents, and that the cost of the said
garnishment be paid out of the said sum of seventeen dollars and
fifty cents. [To be signed, &c. by the justice.]
Form of an examination of a garnishee, on a summons which is'
sued upon an attachment, and judgment thereon.
A B,)
<4State of Tennessee,) vs. > attachment.
county.^ SS' C D.y
This case, commenced by original attachment by the plaintiff
against the defendant, his goods and estate, being returned here
by I J, constable,4 executed, by summoning E F as garnishee,'
and the said E F being duly sworn, deposeth and saith, that he
stands justly indebted to the said defendant in the sum of sev-
enteen dollars and fifty cents, due by book account, which is now
due. All of which being read over to him, and declared to be
correct, the said garnishee manifests the same by signing his
proper name thereto. E F.
attachments.
449
Therefore, the plaintiff producing before me the bill single [or
note under seal] of the said defendant, dated the day of
and due the day of for the sum of nine-
teen dollars, and the defendant failing to appear and replevy, as
required by law, though solemnly called to do so: It is therefore
considered by me, that the plaintiff recover of the said defend-
ant the sum of nineteen dollars and forty-five cents, for debt and
interest, and the further sum of fifty cents, costs in this behalf
accrued. And it is further considered by me, that as there is
no property to be found in this county, as appears from the re-
turn of the officer aforesaid, and E F having been summoned
as a garnishee, and confessing on his examination that he is in-
debted to the defendant in the sum stated in his examination
above: Therefore, it is considered by me, that the said plaintiff
recover of the said E F, garnishee as aforesaid, the sum of se-
vrnteen dollars and fifty cents, and that the cost of this garnish-
ment be deducted from said seventeen dollars and fifty cents, for
which an execution may issue." [To be signed and sealed offi-
cially by the justice.]
Note.—A garnishee is entitled to a stay of execution as well
as other defendants. No judgment can be legally entered up
against the garnishee until a judgment is rendered against the
principal, as his indebtedness must appear before the plaintiff
can ask to subject the garnishee to his demand.
Form of a conditional judgment against a garnishee, predicated on
an original attachment.
A BA
"State of Tennessee,) vs. > original attachment.
county A 8S' C D.}
Whereas, an original attachment was prayed for and obtain-
ed by the said A B, before me, G H, an acting justice oi the
peace for said county, against the estate of the said C D, and
to him the same was granted, for the sum of dollars,
and has been returned before me, at my own house, in the
county aforesaid, by I J, an acting constable for said county,
endorsed thereon that no property of the said defendant could
be found in his county, but that he had levied the same by sum-
moning E F, of said county, as a garnishee, to appear here this
day; and the said E F not appearing, though solemnly called:
3 G
450
miscellaneous division.
It is therefore considered by me, that the plaintiff recover against
the said C D the sum of dollars, and the further sum of
for costs in this behalf accrued, unless he shall show
cause why this judgment should be set aside and held for nought,
for which purpose a notice in the nature of scire facias shall is-
sue, returnable, &c. Given under my hand and seal, this
day of A. D. 18 [To be signed, &c.]
Form, of the notice, in the nature of a scire facias, to the garnishee.
"State of Tennessee,) ss.—To any lawful officer to execute and
county,) return:
Whereas, A B obtained an attachment against the estate of
the said C D, before me, G H, an acting justice of the peace,
on the day of in the year for the
sum of dollars, which said attachment hath been lately
returned before me, by I J, a constable for said countyjf endor-
sed thereon 'No property of the defendant to be found in my
county, but executed by summoning E F, a garnishee—Set for
trial before G H, Esquire, at his own house, on the
day of and the said E F failing to appear accord-
ing to said summons, although solemnly called, a conditional
judgment hath been rendered against him for the sum of
dollars, the amount claimed in said attachment, and the further
sum of for costs, in favor of the said A B: These are
therefore to command you to make known these facts to the
said E F, and require him to appear before me, at my own house,
on Saturday the day of in the county aforesaid,
and show cause, if any he can, why said judgment should not be
made final against him. Given* under my hand and seal, this
day of A. D. 18 ." [To be sighed, &c.]
The form of a conditional judgment against a garnishee, up-
on an execution, will be in every respect like the one predica-
ted upon an attachment, except where the word "attachment"
occurs, the word "execution" must be substituted. The same
may be said of the notice in the nature of a scire facias.
Note.—If the garnishee shall fail to attend and show cause,
as required by scire facias, the conditional judgment may be ren-
dcred final" for the full amount of the plaintiff's demand. The
words scire facias, which are latin, when rendered into English,
are simply "that these make known."
attachments.
451
county,
Whereas, A B lately obtained an attachment against the es-
an acting justice of the peace for said county, and which at-
tachment has been returned before me, G H, an acting justice
of the peace for said county, by I J, constable, endorsed thereon
1 No property to be found in my county, but executed by sum-
moning E F as a garnishee, to appear and answer before G H,
on the day of 18 and the said E F not ap-
pearing at the time and place appointed by the said summon,
although solemnly called: Therefore, a conditional judgment
was entered up by me against the said C D, for the said debt
and cost: Whereupon, a notice in the nature of a scire facias
was .issued, and placed in the hands of a proper officer, to make
known to the said defendant what had been done in the premi-
ses, and to appear and show cause, if any he had, why final
judgment should not be rendered against him: Which said
scire facias being made known, as appears by the return there-
on, to appear before me, this day, at my own house, in said coun-
ty, and the said E F still failing to appear and answer, although
again solemnly called: Therefore, it is considered by me, that the
said plaintiff recover against the said E F, garnishee as afore-
said, the said sum of dollars, and the further sum of
for his cost in this behalf accrued, to be deducted out of the
amount of the said judgment, for which an execution may issue.
Given under my hand and seal, this day of A. D.
18 [To be signed, &c.]
Note.—No conditional judgment ought to be rendered against
the garnishee until the indebtedness of the defendant is made to
appear by judgment.
tate of C D, for the sum of
dollars, before
452
miscellaneous division.
Form of the proceedings against a garnishee, who answers that he
is not indebted to the defendant, but that he has some of the de-
fendanfs property in his hands.
A B,)
"State of Tennessee,") vs. > attachment.
county,5 SS' CD.)
Whereas, A B lately obtained an attachment against the es-
tate of the said C D, before me, G H, an acting justice of the
peace for said county, for the sum of dollars, and a
garnishee summons thereon; which attachment and summons
are returned before me, G H, an acting justice of the peace for
said county, by I J, constable, 'No property found in said coun-
ty,but executed by summoning E F as garnishee;' and the plain-
tiff producing here the note of hand of the said defendant for
the sum of fifteen dollars, and proving the same to be the pro-
per note of the defendant, made and delivered to the said plain-
tiff*: It is therefore considered by me, that the said'plaintiff re-
cover of the said defendant the sum of fifteen dollars, and the
further sum of one dollar for his cost in this behalf accrued:
And the said E F, upon his examination as a garnishee, deny-
ing that he was indebted to the said defendant any thing, but
confessing that he had in his possession two cows, the property
of the said defendant: It is therefore considered and ordered
by me, that the said E F, garnishee as aforesaid, deliver over
to the said I J, constable as aforesaid, the said two cows, to sat-
isfy the said judgment and cost, under the pain of paying and
satisfying the plaintiff's judgment of both debt and cost. Giv-
en under my hand and seal, this day of A. D.
18 ." [To be signed, &c.]
Note.—The officer in serving garnishee summons, whether
issued by a justice of the peace upon attachments, or by him*
self when an execution is in his hands, must make out dupli-
cates,orin other words, two summons exactly alike, word for
word and figure for figure, and give one to the garnishee, and
return the other to the justice where the original cause is pend-
ing, with his return on the s&me—thus:
"Summoned the within E F to appear before G H, an acting
justice of the peace for said county, a3 a garnishee, to answer
attachments.
453
according to the said summons, at the house of the said G H, on
the day of A. D, 18 I J, Constable."
The form of an attachment, returnable before a justice of the
peace, is in every respect the same as an attachment returna-
ble to court, until you come to the words "further proceedings
thereon to be had," then say, "before me, or some other justice
of the peace for said county," then use the words of the form of
an attachment returnable to court, to the end thereof.
The bond will be of the same form for the prosecuting on an
attachment returnable before a justice of the peace, as the one
returnable to court, until you come to the word "returnable,"
then, instead of saying "to the court," say, "returnable
before me, or some other justice of the peace for said county."
The balance of the bond will be exactly like the old form, to
the end thereof.
Note.—When a garnishee is summoned, and the defendant
shall appear and replevy, and pray for and obtain an appeal to
the county or circuit court, no judgment shall be rendered
against the garnishee until after judgment is obtained against
the original defendant; and then only by the court where the
final judgment is rendered.
Note.—When an attachment is levied on the property of the
defendant, and returned before the justice of the peace, and
the defendant shall not appear and replevy the goods, and judg-
ment shall be rendered against him, instead of an execution of
fieri facias, an order of sale ought to issue to the officer who lev-
ied the attachment, to sell the said property, or so much thereof
as shall be sufficient to satisfy the judgment of debt and cost.
The order of sale, called in our law books a venditioni exponas,
should be of the form following:
"State of Tennessee,)
county,\ ss'
To I J, sheriff [or constable, as the case may be,] of the county
aforesaid—Greeting:
Whereas, A B obtained an attachment against the estate of
C D, before an acting justice of the peace for said
county, for the sum of dollars, and which said at-
tachment has been returned before me, G H, an acting justice
of the peace for said county, by I J of said county,
454
miscellaneous division.
4 levied upon two cows the property of the saicT defendant,' am
a judgment being rendered this day in favor of the said plain
tiff for the sum of fifteen dollars, against the said defendant
and the further sum of one dollar and fifty cents, costs accrue!
thereon: You are therefore hereby commanded to proceed to ex
pose to sale, to the highest bidder, the said two cows, after giving
notice of the time and place of such sale, as required by law, to
satisfy said judgment and costs. Herein fail not; and make re-
turn to me how you shall have executed this writ. Given un-
der my hand and seal, this day of A. D. 18 ."
[To be signed, &c. by the justice.]
GARNISHMENT ON EXECUTIONS.
"When a judgment has been rendered in any of the courts
of record of this State, and execution issued thereon, and put
into the hands of the sheriff or other officer for collection, if the
person against whom such execution has issued has removed him-
self out of the county, and has no property in said county, or not
so much as will be sufficient to satisfy the same, it shall be the
duty of the sheriff, or other officer, to summon in writing all such
persons as may be indebted to the person against whom such
execution has issued, to appear at the next court from which
such execution issued, to declare on oath what sum he or they are
indebted; and judgment shall thereon be entered for the amount
due, and execution thereon issued, as in case of other garnishees,1'
&c. Act 1803, ch. 6, sec. 3.
"When any justice of the peace shall issue an execution
against any property belonging to the defendant, it may be law-
ful for the officer into whose hands said process may come, to
summon any person or persons as a garnishee or garnishees, in
writing, to appear before said justice to answer upon oath what
he or she is indebted to the defendant, and what effects he or
she hath in his or her hands, belonging to the defendant, at the
time of serving said garnishment, and what debts or effects of
the defendant are in the hands of any other, and what person,
to his or her knowledge or belief; and it shall be lawful, upon
his appearance and examination, for said justice to render up
judgment and award execution against any such garnishee, for
GARNISHMENT.
455
all sums of money due to the defendant from him or her, and for
all effects and estate of any kind belonging to the defendant, in
his or her possession or custody, for the use of the plaintiff, or so
much thereof as will be of value sufficient to satisfy the debt and
cost, and all charges incident on levying the same; and all goods
and effects whatsoever, in the hands of any garnishee or garni-
shees, belonging to any defendant, shall be liable to satisfy the
plaintiff's judgment, upon which such garnishee is summoned;
and so soon as the property is declared to be that of the defend-
ant, it shall be delivered to the officer serving the garnishment;
and when any garnishee is returned, summoned as contempla -
ted by this act, and shall fail to appear," &c. then the same pro-
ceedings must be had as.described upon an attachment. Act of
1815, ch. 20.
The form of the garnishee summons will be the same in eve-
ry respect as the one issued by the justice of the peace upon
an attachment, except that instead of directing it to some officer,
it must be directed to the garnishee himself, and an exact copy
left with the garnishee, with the time and place where he is re-
quired to answer, &c. The officer must sign the garnishee sum-
mons instead of the justice of the peace. The form is as fol-
lows:
"State of Tennessee,) ss.—To E F, of the county aforesaid—
county,} Greeting:
Whereas, a judgment has been rendered, and an execution
thereon issued, in favor of A B, against C D, by G H, an acting
justice of the peace for said county, for the sum of dollars,
for debt, and the further sum of for cost, which said ex-
ecution is now in my hands to do execution thereof; and where-
as it has been suggested, that you are indebted to the said de-
fendant, and the said plaintiff desiring that you should be sum-
moned as a garnishee, before the said G H, Esquire: You are
therefore hereby summoned to appear before the said G H, to
answer upon oath, in writing, what you are indebted to the said
C D, at the time of the service of this summons, and what debts
or effects of the defendant are in the hands of any other per-
son, to your knowledge and belief. Your attendance is requi-
red at the dwelling house of the said G H, on the day of
A. D. 18 between the hours of and
456
miscellaneous division.
In this you shall in no wise omit, under the penalty of a con-
ditional judgment being rendered against you for the full amount
of the plaintiff's demand. Given under my -hand and seal, this
day of A.D. 18 ." [To be signed and seal-
ed officially by the constable.]
Note.—All the forms of conditional and final judgments, or
notices in the nature of scire facias, upon attachments, will suit
upon executions against garnishees.
EXECUTION FROM ANOTHER COUNTY.
"When any execution shall be issued by a justice of the peace
against the body, or goods and chattels of any person who may
remove himself, or goods and chattels, to any other county in
this State, before the same is satisfied, in every such case it shall
and may be lawful for the person or persons having any such
judgment and execution, to obtain the certificate of the clerk
of the county, setting forth that the magistrate who granted the
judgment and execution was, at the time, an acting justice of
the peace for his county; for which the clerk shall receive fifty
cents, to be paid by the party applying for the same, and the
fees shall be endorsed on the certificate; and on producing said
execution and certificate to any justice of the peace of the
county to which any debtor may have removed himself or prop-
erty, it shall be sufficient to authorize any justice of the peace
to issue an execution on the said judgment (execution) for the
amount of the judgment and costs, and the clerk's certificate."
Act 1805, ch. 66, sec. 4.
The execution which shall issue upon the. one certified from
another county, shall be of the form following:
"State of Tennessee,) ss.—To any lawful officer to execute, and
county,) return:
Whereas, an execution issued on the day of
A. D. 18 by E F, an acting justice of the peace for
county, on a judgment rendered by the said E F> for the sum of
dollars, debt, and the further sum of for cost
thereon accrued, and which execution, and every part and par-
eel thereof, is unsatisfied, and the same being certified as re-
quired by act of assembly, and brought before me, G H, an
executions—oaths*
457
an acting justice of the peace for said county: These are there-
fore to command you, that of the goods and chattels of the said
C J), if to be found in your county, you cause to be made the
sum of dollars, for debt and interest, and the further sum
of for cost accrued thereon, and the costs incident to the
doings on this fieri facias, to satisfy a judgment which the said A
B recovered against the said C D, before the said E F, for the
said sum of dollars debt, and the further sum of
for cost. Herein fail not; and have you the money ready to ren-
der the plaintiff, as required by law. Given under my hand and
seal, this day of A. I). 18 ." [To be signed,
&c. by the justice.]
Note.—No judgment upon the certified execution is necessa-
ry, as the execution is the end of a suit, and can only issue up-
on a judgment rendered in the county from whence the execu-
tion comes certified. It has been the practice of some of the
justices of the peace to write on such certified execution, "Re-
newed," instead of writing a new one after the form above.—
This renewed, execution, as they call it, is not only voidable, but
absolutely void, as being done without any the least authority;
and so are all the subsequent proceedings under it.
OATHS, &c.
"Every person who shall be chosen or appointed to any office
of trust or profit, shall, before entering on the execution thereof,
take an oath to support the constitution of this State, and also an
oath of office." Con. Art. 9.
"No person who denies the being of a God, or a future state
of punishments and rewards, shall hold any office in the civil
department of this State." Ibid, Art. 8.
Note.—As the reasons for swearing on the gospels and with
an uplifted hand, are not generally known to persons who are
unconversant with legal proceedings, I am induced to insert an
ancient statute upon the subject in this place.
"Judges, justices of the peace, and all other persons who are
or shall be empowered to administer oaths, shall (except in the
cases in this act excepted) require the party to be sworn, to lay
his hand upon the holy evangelists of x\lmighty God, in token of
his engagement to speak the truth, as he hopes to be saved in
3 II
458
MISCELLANEOUS DIVISION.
the way and method of salvation pointed out in that blessed vol-
Ume; and in further token, that if he should swerve from the
truth, he may be justly deprived of all the blessings of the gos-
pels, and be made liable to that vengeance which he has^impre-
cated on his own head; and after repeating the words, "So help
me God," shall kiss the holy gospels as a seal of confirmation to
said engagement." Act 1777, ch. 4, sec. 2.
"In all cases, where any judges, justices of the peace, oroth-
er persons, are or shall be empowered to administer any manner
of oath in this State, and the person to be sworn shall be con-
scientiously scrupulous in taking a book oath, as aforesaid, and
pray the henefit of this act, it shall and may be lawful for such
judges, justices, and other persons, and they, and each of them,
are hereby required and directed to excuse such person from lajr-
ing his hand upon or touching the holy gospels; and the said
judges, justices, and others, are hereby directed, in such case, to
administer the oath required in the following manner, to wit:
the party so conscientiously scrupulous, and praying the benefit
of this act, shall stand with his right hand lifted up towards
Heaven, in token of his solemn 'appeal to the Supreme God,
whose dwellings are in the highest Heavens, and also in token
that if he should swerve from the truth he would draw down the
vengeance of Heaven upon his head, and introduce the intend-
ed oath with these words, viz.
" i You solemnly appeal to God, as a witness of truth and aven-
ger of falsehood, as you shall answer for the same at the great
day of judgment, when the secrets of all hearts shall be made
known, that,' &c. as the words of the oath shall be.
"And it is hereby declared, that an oath thus administered, and
taken with the right hand lifted up, is and shall be a lawful oath
in this State; and such oath shall be admitted and used in all
courts in this State, where the same shall be requested as afore-
said; and shall be equally good and valid in law, to all intents
and purposes, as if the,same oath had been taken by the party
having laid his hand upon and kissed the holy gospels." Jbuly
sec. 3.
OATHS.
459
No. 1.—Form of an oath upon the gospels, upon the trial of a cause
before a justice of the peace,
"You solemnly swear, upon the holy evangelists of Almighty
God, that the testimony you shall give before me, in this cause,
wherein A B is plaintiff and C D is defendant, shall be the truth,
the whole truth, and nothing but the truth: So help you God."
No. 2.—The form with an uplifted hand.
"You solemnly appeal to God, as a witness of the truth and
avenger of the falsehood, as you shall answer for the same at the
great day of judgment, when the secrets of all hearts shall be
made known, that the testimony you shall give before me in this
cause, wherein A B is plaintiff and C D is defendant, shall be
the truth, the whole truth, and nothing but the truth: So help
you God."
No. 3.—Form of an affirmation of a Quaker, Moravian or Menonist,
in each case.
"You solemnly affirm, in the presence of Almighty God, that
the testimony you shall give before me, in this cause, wherein A
B is plaintiff and C D is defendant, shall be the truth, the whole
truth, and nothing but the truth, to the best of your know-
ledge."
By the act of 1817, chapter 84, all officers, civil and military,
judicial andexecutive, before they take their respective oaths of
office, are required to take the following oath or affirmation, to
wit:
"I, A B, do solemnly swear, on the holy evangelists of Almigh-
ty God, that I have not given or accepted a challenge, either
written or verbal, to fight a duel; nor have I fought one since
the passage of an act, passed in the year eighteen hundred and
seventeen,entitled 'An act more effectually to prohibit duel-
ling;' nor have I been the second or bearer of a challenge for
such purpose: and that I will not fight a duel, or be the bearer of
a challenge, either written or verbal, for such purpose, or act as
the second of both or either of the parties concerned in a duel,
during my continuance in office: So help me God."
460
MTSCrXLANEOTTS DIVISTON.
MILITARY OFFICER'S OATH.
Besides the oath against duelling, all military officers are re-
quired to take the following oath, before they enter upon.the.du-
ties of their offices, viz.
If upon the gospels, thus: " I, A B, do solemnly swear, on the
holy evangelists of Almighty God, that I will support the consti-
tution of the United States and of the State of Tennessee, and
that I will faithfully discharge the duties of the militia of .Ten-
nessee, as prescribed by law, to the best of my abilities: So help
me God."
If with an uplifted hand, commence the oath as in No. 2, and
follow the same, word for word, until you come to the word
"known," then insert the words of the above oath to the conclu-
sion.
The oath against duelling, and the oath to support the consti-
tution of the United States and the State of Tennessee, and the
oath of office, must all be written at length on the back of the
commission, and signed by the officer on the right hand, and
certified thus, by the justice of the peace, on the left hand side:
"Sworn to and subscribed, before me,)
this day of A. D. 18 £
G II, Justice of the Peace J
JURY OF VIEW.
"All roads hereafter to he laid out, shall he laid out by a jury
of freeholders, to consist of not less than five nor more than twelve,
to the greatest advantage of the inhabitants, and as little as may
be to the prejudice of enclosures; which laying out shall he On
oath; which oath shall be of the following form, viz.
"'You, and each of you, do solemnly swear [or appeal, as the
case may be] that you will lay out the road now directed to be
laid out by (order of) the court of pleas and quarter sessions, to
the greatest ease and advantage of the inhabitants, and with as
little prejudice to enclosures as may be, without favor or affec-
tion, malice or prejudice, and to the best of your skill and know-
ledge.'"
LAYING OFF DOWER.
461
Note. Every person_ appointed as an overseer, is considered
Py the law as such untilheYeturns his order that his road isffin
good repair, and that he resigns his appointment, &c. He can-
pot return his order until the expiration of twelve months; and
jf he does not return his order at the expiration of the year, he
fhall continue liable to all the pains and penalties of the law for
failing to keep the road in good repair, &c.
The first thing an overseer ought to do, after his appointment,
js to inform himself from the law what his duty is, and follow it
strictly until his time expires.
LAYING OFF DOWER.
"Any widow having claim to dower, may file her petition in
the circuit or county court of the county where her husband has
usually dwelt, setting forth the nature of her claim, and partic-
ularly specifying the lands, tenements and hereditaments of
which her husband died siezed or possessed, and praying that her
dowrer may be allotted to her; whereupon, the said court shall
issue their writ to the sheriff of the county where the lands, tene-
ments and hereditaments of the deceased husband lie, comman-
ding him to summon five freeholders unconnected with the par-
tics by either consanguinity or affinity, and entirely disinterest-
ed, who, upon oath, (which oath the sheriff is hereby empower-
ed to administer,) shall allot and set off to the said widow, one-
third part of all the lands, tenements and hereditaments in the
said county, of wdiich the said husband was so, as aforesaid, pos-
scssed; and shall put her into possession of the same; which
possession shall vest in her an estate for her natural life, in the
third part of the lands, tenements and hereditaments of which
her husband was so as aforesaid, seized or possessed; and the
said sheriff and freeholders shall put her into possession of the
house or mansion, or part or portion thereof, in which her said
husband most usually dwelt next before his decease, and all offi-
ccs, out-houses, buildings and improvements thereunto belonging,
or in any wise appertaining; and if the lands, tenements and
hereditaments lay in different counties, the said court shall di-
rect a writ to the sheriff of each county," &c. Acts 1784, ch. 22,
and 1827, ch. 6.
462
miscellaneous division.
The form of the oath to be administered by the sheriff to the
jury who are to partition the premises and lay off the widow's
dower, which oath must be administered to them before they
proceed to examine the premises.—Jury to be sworn thus:
"You and each of you, do solemnly swear, on the evangelists
of Almighty God, that^ you will examine carefully the lands,
tenements and hereditaments mentioned in this writ of dower,
and mark, designate and lay off one-third thereof for the ben-
efit and use of the petitioner mentioned in said writ; taking
care to W it off in such a manner as to include the mansion
house, &c. where the deceased husband usuallyllived before his
death, and to observe a strict regard to quantity and quality of
the premises to be divided, doing strict and ample justice to all
concerned; and your doings thereon to return in writing: So help
you God."
In assigning dower the commissioners are not compelled to as-
sign her a third part of each separate tract of land where there
are more tracts than one; but may make the assignment accord-
ing to quantity and quality, in such manner as will give one-
third in value of the whole estate; and the widow may waive
the right to the mansion house of the deceased husband. This
waiver of the mansion house had better be made in writing—
thus:
"I, A B, widow and relict of C D, deceased, do hereby waive
any right or claim to the mansion house allowed me by law, and
only ask one-third of the lands and tenements, according to
quantity and quality. Given under my hand and seal, this
day of A. D. 18 A B, [l.s.]
Test, E F."
The commissioners" appointed to assign dower must make re-
turn of their proceedings within the time required in the writ of
dower. -
PARTITION OP LAND.
4G3
PARTITION OF LAND.
Where two or more persons hold lands, tenements and heredit-
taments in common, or parceners, they may partition out the same
by conditional lines, &c. and such division shall be good and
effectual between them. But in most instances, application is
made to court, by petition, for an order of partition, and com-
missioners to partition out the lands, &c. amongst the several
claimants. The commissioners must be sworn to do justice be-
tween the parties—thus:
"You, and each of you, do solemnly swear, that you will well
and truly examine the lands, tenements, and hereditaments men-
tioned in the order of partition, and divide the same by metes
and bounds, distinctly marked, between the several claimants,
according to quantity and quality, charging the most valuable
portions with such sums as will make the less valuable equal to
the more valuable, and to do strict and ample justice between
the claimants, according to the best of your skill and abilities:
So help you God." See acts of 1787, ch. 17: 1789, ch. 24:
1815, ch. 123: 1817, ch. 41.
After said commissioners have finished their business, as re-
quired in the writ, it is their duty to return their proceedings and
appropriations, under the hand and seal of a majority of them,
ascertaining with ^precision the differents tracts or parcels of
lands, lots or houses, with actual surveys of the same, when ne-
cessary, to the court by which they were appointed, which re-
turn and appropriation shall be certified by the clerk, and en-
rolled in his office, and registered in the register's office for the
county where the land lies; and such return and appropriation
shall be binding upon all concerned.
PRESERVING THE PEACE.
Justices of the peace, sheriffs, coroners, and constables, are
the proper conservators of the peace. All justices of the
peace are the common conservators of the peace, order and
morals of their respective counties. The very name carries
with it the power and dignity of the office. Justices of the peace
do not only possess the power, but it is enjoined upon them by
4&i
MISCELLANEOUS DIVISION.
their office, and the duty they owe the public, to suppress al
assaults, batteries, affrays, unlawful assemblies, routs, riots, tu-
mulls, noisy, howling and obscene persons; and to apprehend all
felons, to take up all loitering and suspected persons, who seem
to have no visible means of honest maintenance—(such persons
usually fall under the name of vagabonds.) All habitual drunk-
ards who act in such a manner as to annoy the civil, peaceable
and orderly citizens of the country, are to be taken and bound
over to the county or circuit court for trial. These offenders, the
justices of the peace, in their respective counties, may order to
be instantly apprehended by any sheriff, coroner or constable,
who may be present, without warrant, if the offence has been
committed in his presence, or is about to be committed; and in
the absence of such regular officer, the justice of the peace may
deputize any private person present, and require him instantly
to execute his orders in apprehending the offender; and the of
ficer or private person is bound to obey under the penalty of
fine and imprisonment. There is 110 person clothed with high-
cr authority to preserve the peace of the Slate inviolate than
a justice of the peace. If an offence has been committed in the
presence of a justice of the peace, or in the presence of any
other officer who by virtue of his office is a conservator of the
peace, he may demand such security, according to his discretion,
or at the request of another, upon cause shown by affidavit.—
4 Elack. 252.
The judges of the supreme and circuit courts, sheriffs, coro-
ners and constables arc, by virtue of their offices, as well as jus-
tices of the peace, conservators of the public peace.
The deputation of a private person need not be under the
warrant in writing of the justice or judge, where the emergency
may require immediate action in the presence of the judge or
justice of the peace: but it is good by parol. But if the offence
has not been committed in the presence of the judge or justice,
or is about to be committed in their presence, then the offender
ought to be apprehended by warrant; and if a private person
is'deputized to serve the warrant, the deputation must be upon
the warrant thus:
"There being no lawful officer present, and the emergency
requiring immediate action, I therefore hereby deputize, author-
PRESERVING THE PEACE
465
ize and empower A B to do execution of this warrant. Given
under my band and seal, this day of A. D. 18
[To be signed, <&c.]
I have been speaking of those things for which a justite or
judge may, ex officio^ (by virtue of his office) have persons appre-
bended to bind them to keep the peace, appear at court, answer,
&c. When a justice orders an offender, or one about to com-
mit a crime, or breach of the peace, to be apprehended for an
act within his own view, no trial or witnesses are necessary. It
is the duty of the said justice to bind over the offender to the
next court where his offence is cognizable, for an offence already
committed, and, if the nature of the offence requires it, to bind
him to keep the peace; and where the offence is not complete,
but the apprehension has been ordered to prevent the breach of
the peace, or the commission of any crime, the justice or judge
shall bind in recognizance the party to keep the peace towards
all the citizens of the State, and particularly the person against
whom threats or menaces may have been made, and to behave
himself orderly and properly, under proper penalty, until the
expiration of the next court of pleas and quarter sessions; and
also to appear at said court, and further answer the premises, as
shall then and there be objected against him, &c. See 1 Haw.
P. C. 127: 2 Stra. 1207: 4 Black. 254, 255.
The recognizance is of the form following:
"State of Tennessee,)
county,5 SS'
Whereas, C D this day made an assault and battery upon the
body of one A B, with a drawn dirk, which he, the said C D. in
his right hand had and held, and did then and there, with the
dirk aforesaid, strike, thrust and stab the said A B—he, the said
A B, then and there not having a weapon^—then and there giv-
ing him one wound of three inches in depth, and one inch wide,
in the left arm of the said A B; all which was committed in the
presence of me, G H, an acting justice of the peace of said
county, and for which I ordered the said C D to be immediately
apprehended without warrant: Therefore, I have ordered the
said C D to find sureties for his appearance at the next circuit
court, to be holden for the county aforesaid, and in the mean-
time to keep the peace, and well and truly to*behave himself or-
466
MISCELLANEOUS DIVISION.
derly towards all the good citizens of this State, and especially
towards the said A B; or, upon failure to find sureties as aforesaid,
he should be committed, &c. Whereupon, the said C D, and
E F and I J, his security, came before me, this day, to wit, at
in said county, and acknowledged themselves to stand
justly indebted to the State of Tennessee, that is to say, the
said C D in the sum of two thousand dollars, and the said E F
and I J in the sum of one thousand dollars each, to be levied of
their respective goods and chattels, lands and tenements; but to
be void on condition that the said C D shall make his personal
appearance before the judge of our next circuit court, at a court
to be holden for the said county at the court house in the town
of on the Monday of next, then and there
to answer the State of Tennessee upon the charge of stabbing
A B, and in the mean time to keep the peace, and well and tru-
ly to behave himself orderly towards all the good citizens of the
State, but especially the said AB; and not depart said court un-
til discharged by due course of law. Acknowledged before me,
this day of A.D. 18 ." [To be signed, &c. by
the justice.]
Form of a recognizance for good behaviour of a person attempting
to break the peace in the presence of a justice of the peace.
"State of Tennessee,) "'
county,) SS'
Whereas, C D this day made an offer and an attempt to com-
mit an assault and battery upon the body of one A B, with a
drawn knife, with many threats and menaces of bodily harm to
the said A B, in the presence and hearing of me, G H, an acting
justice of the peace for said county, and for which I ordered the
said CD to be immediately apprehended without warrant:
Therefore, I have ordered the said C I) to find sureties for his
good behaviour, and keeping the peace towards all the good cit-
izens of the State, and especially the said A B, or be committed
to jail: Whereupon, the said C D, 'with E F and I J, his secu-
rities, appeared before me, G H, justice of the peace as aforesaid,
at, to wit, at in said county, and acknowledged themselves
to stand justly indebted to the State of Tennessee, jointly, in
the sum of two thousand dollars, to be levied of their respect-
ive good and chattels, lands and tenements; but to be void if
PRESERVING THE PEACE.
467
the said C D shall keep the peace, and well and truly behave
himself in anynderly manner towards all^the good citizens of the
State, and especially the said A B, for the space of twelve cal-
endar months from this date. Acknowledged before me, this
day of A. D. 18 ." [To be signed, &c.]
Such recognizances, when given for keeping the peace, may
be forfeited by any actual violence, an assault, or even a men-
ace to the person that he is specially bound to keep the peace
towards; or by any unlawful action whatever that amounts to a
breach of the peace,or directly tends to a breach of the peace;
or by any private violence committed against any of the citizens
of the State: but a bare trespass upon the lands or goods of an-
other, without any breach of the peace, and which is only the
ground for a civil suit, is no breach of such recognizance. Nor
is mere reproachful words, unaccompanied with threats or men-
aces of bodily harm, as to call a man a knave, or liar, or the like.
See 4 Black. 255: 1 Haw. P. C, 126, 127, 128,131.
We proceed now to speak of that species of the disturbance
of the peace that falls under the head of nuisance. It has been
said in the criminal division, that every act or thing done and
performed which is against good morals,is an indictable offence;
and with equal propriety it may be here said, that whatever has
a tendency to disturb the quiet, and annoy the public peace, by
habitual drunkenness, singing lewd or bawdy songs, using repeat-
edly loud and vulgar indecent words in public houses, public
squares, public streets, in the public roads, or other places where
the public must pass and repass, or where a number of persons
are collected together, or the doing any of those vulgar, indecent
and blackguard things which tend to the debasing of human
nature, are such as a justice of the peace, upon his own know-
ledge, (the same being said or done in his presence or hearing)
should immediately have the perpetrators thereof apprehended,
and compelled to give recognizance, with good and sufficient se-
curity for their good behaviour for twelve months; and upon their
failure to give such security, to commit them to jail for the same
period of time, or such other period as to said justice should seem
right, and there to remain until all the cost accruing thereon is
paid, &c.
408
MISCELLANEOUS DIVISION.
The form of recognizance for these offences will, in substance,
be the same as the one for stabbing, except the particular offence
must be stated in the recognizance, instead of the offence of
stabbing; and the mittimus will be of the form of those in the
criminal division.
IJhave already said that the sheriffs, coroners and constables
are conservators of the public peace; and it is their duty to ap-
prehend all persons who shall breach the peace in their presence,
and forthwith bring them before a justice of the peace, to be
dealt with as the law directs. And in all cases where a person
haa been bound to the peace, and has forfeited his recognizance,
and that fact is personally known to those officers, it is made
their duty to apprehend such person, and bring him forthwilh
before a justice of the peace. Also, to apprehend all such per-
aons who, in their presence, are about to commit any breach of
the peace, and forthwith take them before a justice of the peace
to find sureties for the keeping the peace, and for good behaviour;
and for all the offences of the low, obscene, demoralizing char-
acter mentioned in page 467, under this head.
Whenever any private man hath just cause to fear that ano-
ther will burn his house, or do some corporeal injury, by killing,
imprisoning or beating him, or that he will procure others so to
do, he may demand sureties of the peace of such person—[4
Bl. 255;] and every justice of the peace is bound to grant him a
warrant, commonly called a peace warrant, if he who demands
it will make oath as follows:
"State of Tennessee,)
county.) ss'
Personally appeared A B, before me, G IT, an acting justice
of the peace for the county aforesaid, and made oath that he
has just cause to fear, and actually doth fear, that C D will kill
him, or do him some great bodily harm, or that he will procure
others to do so for him, and therefore that he doth pray sureties
of the peace from him. A B.
Sworn to and subscribed before me,)
the day of A. D. 18 )
G H, Justice of the Peace.
PRESERVING THE PEACE. 489
Upon which affidavit'a peace warrant shall issue of the form
following:
«State of Tennessee.) ss.—To any lawful officer to execute and
county,£ return:
Whereas, complaint has been made upon oath, by A B, before
me, G II, an acting justice of the peace for said county, this
day of in the year of our Lord one thousand eight
hundred and that he has just cause to fear, and doth ac-
tually fear, that C D, late of said county, will actually kill him,
or do him some great bodily harm, or that he will procure others
to do so for him, &c. These are therefore to command you to
take the body of the said C D, if to be found in your county,
and him safely keep, so that you forthwith have him before me,
or some other justice of the peace for said county, to be further
dealt with as the law directs. Given under my hand and seal,
the day above written. [To be signed, &c.]
These proceedings are generally called swearing the peace
against one.
A wife may have sureties of the peace against her cruel and
inhuman husband, who will beat or abuse her person.
When the warrant is returned before the justice of the peace,
if the prosecutor will show that he has just cause to be alarmed,
from or by reason of the menaces, attempts, or having lain in
wait for him, and will furthfer swear, that he does not require
such surety out of malice, or for mere vexation, the justice shall
require good and sufficient securityfor the keeping of the peace;
and upon the defendant's failing to do so, the justice shall com-
mit him to jail until] he shall find sureties.
The judgment requiring sureties is as follows:
"State vs. C D.—It is considered by me, that the said C D en-
ter immediately into recognizance, with good and sufficient secu-
ritv, jn the sum of two thousand dollars, to appear at the court of
pleas and quarter sessions for said county, and to keep the peace;
and upon failure, to be committed until he shall find such sure-
ties. Given under my hand and seal, this day of A. D.
18] [To be signed, &c.]
470
MISCELLANEOUS DIVISION.
Form of a recognizance to appear at court and to keep the peace in
the mean time.
•"State of Tennessee,)
county.^ SSf'
Personally appeared C D, and E F and I J, his securities,
before me, G H, an acting justice of the peace for said county,
and acknowledged themselves to stand justly indebted to the
State of Tennessee, that is to say, the said C D in the sum of
two thousand dollars, and the said E F and I J in the sum of
one thousand dollars each, to be levied of their respective goods
and chattels, lands and tenements; but to be void if the said
C D shall make his personal appearance before the justices of
the court of pleas and quarter sessions, at a court to be hold-
en for said county, at the court house in the tGwn of
on the Monday of next, then and there to answer
the State of Tennessee upon a peace warrant, procured upon
the oath of A B, and in the mean time to keep the peace to-
wards all the good citizens of the State of Tennessee, but es-
pecially towards the said A B; and abide such sentence as the
said court shall pronounce in the premises, and not depart said
court until discharged by due course of law. Acknowledged
before me, the date above written. [To be signed, &c.]
SHERIFFS, &c.
"The sheriffs of the respective counties of this State shall be
the sheriff of the county courts, circuit courts and supreme courts
in the counties where said courts are holden." Act of 1809, ch.
49, sec. 14.
"It shall be the duty of the respective sheriffs of the counties
where the terms of the supreme, chancery and circuit courts are
holden, to cause the court house to be kept in order, for the ac«
commodation of the courts, and to furnish water and fire, when
necessary, the expenses for doing which shall be a county
charge; and on the account of expenses being proven by the
sheriff to the county court, the same shall be allowed and paid
out of the county treasury." Act 1829, ch. 71, sec. 1.
. "No sheriff shall be re-elected until he shall produce sufficient
vouchers that he has accounted for and paid all State and coun-
SHERIFFS, &C.
471
ty taxes that before the time of such election he may have been
bound by law to account for and pay." Act of 1805, ch. 41.
Every sheriff, by himself or deputies, shall, from time to time,
execute all writs and other process to him legally issued and
directed within his county, and make due return thereof, under
penalty of forfeiting one hundred and twenty-five dollars."
"It shall not be .lawful for any sheriff within this State to ap-
point more than two deputies within the county for which
he shall have been appointed, nor shall it be lawful for a justice
of the peace to hold the office of deputy sheriff during his con-
tinuance in office." Act 1821, ch. 12.
"And for every false return, the sheriff making the same shall
forfeit and pay one hundred and twenty-five dollars; one moiety
thereof to the party grieved, and the other moiety to him who will
sue for the same." Act 1777, ch. 8.
It is thence to be inferred, that if the injured party institutes
the suit as an injured party and common informer, he is entitled
to the whole penalty.
Where the sheriff or clerk of any county in this State may
have paid money, or become liable to pay money, for the default
or misconduct of their deputy or deputies, they may have judg-
ment against such deputy and his securities for all damages and
cost, as such sheriff or clerk shall have sustained, or be liable to
pay, by motion in the county or circuit court of the county where
such sheriff or clerk may reside. Act 1829, ch. 41.
The sheriff or deputy sheriff of any county may serve all
process issued by a justice of the peace in the same manner that
constables may serve them.
"In all cases where a sheriff or his deputy shall collect any
money by virtue of an execution issued by a justice of the
peace, or by warrant, or otherwise, within the jurisdiction of a
justice of the peace, said sheriff and his securities shall be held
liable upon their bond for all moneys collected as aforesaid."—
Act 1827, ch. 35.
If the sheriff collects money under an execution issued by a
justice of the peace, he is entitled to the same fees for levying
an execution, and commissions for collecting money upon such
execution, as are allowed by law to constables.
m
MISCELLANEOUS DIVISION.
A constable is entitled to four per cent, commission, and no
more, on all sums collected by him on an execution issued by a
justice of the peace. Act 1827, ch. 35.
"When any sheriff, coroner or constable who is intrusted with
the Collection of debts under the jurisdiction of a justice of the
peace, whether due by bond, bill, or otherwise, shall receive such
money, whether before the service of any warrant, or after or
before the rendition of any judgment therefor, after such
judgment, such sheriff, coroner, constable, and their securities,
shall be liable to a judgment, by motion, for such moneys, in
as complete and ample a manner as if the said money had been
collected by execution." Act 1817, ch. 54.
Nothing is said in the above section before what tribunal the
motion is to be made; but it is presumed that the same proceed-
ings may be had against a sheriff, upon motion, for moneys col-
lected under a justice's jurisdiction, as against a constable,
When any constable shall collect any money on an execution
issued by a justice of the peace, and on application of the
plaintiff, his agent, or attorney, shall fail or refuse to pay over
the money so collected, it shall and may be lawful for the plain-
tiff, on motion* before any justice of the peace in the county in
which the judgment was rendered, to obtain judgment against
such delinquent constable, and his securities, for the amount so
collected, with twelve and one-half per cent, interest; on which
judgment there shall be no stay of execution: Provided,however,
that the plaintiff shall be bound to give the constable in default
five days' notice in writing of the time and place of such motion;
and provided also, that before the plaintiff shall be entitled to a
judgment against the securities of such constable, he shall be
bound to produce to the justice a certified copy of the bond of said
constable and his securities; from which judgment either par-
ty may pray for and obtain an appeal to the next county or
circuit court, upon giving bond and security, as an othpr cases of
appeal." Act 1823, ch. 21.
"When any constable shall collect any money or monies, by
virtue of his office, after a note is put into his hands, without
serving a warrant, or other process, then, and in that case, his
securities shall be liable for the said money, or moneys, in as
sheriffs, &c.
473
complete and ample a manner as if judgment had been entered
up by any justice of the peace within the county, and said mo-
ney or moneys may be collected of his securities in the same
manner as when a judgment has been recovered and an execu-
tion has been put into his hands, and the said constable and his
securities shall be liable for twelve and one-half per cent, on the
sum so detained." Act 1815, ch. 40.
It shall be the duty of the sheriff and constables to give pub-
lie notice of their execution sales, by advertising them at three
or more public places in the county, at least ten days previous
to the day of sale, one of which advertisements 6hall be set up
at the usual place of mustering in the captain's company where-
in the defendant resides. Act 1827, ch. 35.
"Each and, every constable appointed and sworn is, and they
are hereby invested with and may execute the same power and
authority, to all intents and purposes, as the constables in the
kingdom of England are by law invested." Act 1741, ch. 5.
Note.—Neither the sheriffs or constables are authorized to
charge and receive a commission upon any execution put into
their hands for collection, unless the money has been actually
received by such sheriff or constable. Nor are they authorized
to charge and receive a commission upon any moneys collected
by them, whether before or after judgment, but upon an execm
tion which is in their hands at the time the money js received by
them.
The ten days' notice required by law in advertising property
levied upon by execution, is very seldom given by either sheriffs,
coroners or constable s. They usually put up one advertisement,
in conformity with the requisitions of the law, thereby giving ten
entire days' notice of the day of sale. But that is not sufficient;
the law requires "at least ten days previous notice, at three pub-
lie places;" therefore, the advertisements must all be set up at
least ten entire days before the day of sale, or the law will not
be complied with, and the officer selling without having given
the ten days' notice, renders himself liable to an indictment, and
a civil suit to recover damages, &c.
All sales of property under execution must be between the
hours of ten o'clock in the morning and sunset.
3 K
474
MISCELLANEOUS DIVISION.
The returns of sheriffs, coroners and constables are some-
times so defective as to render them nugatory. Many officers
will not note the day the same was given to him, or, in other
words, came into his hands, nor the day he executed; all which
defects may render the officer thus failing liable to the party
injured thereby. Therefore, I would admonish all sheriffs, cor-
oners and constables to be particular in the form as well as the
facts of their returns.
Let them say upon the back of any process that may come
into their hands, the day on which it so come into their posses-
sion—thus:
"Come to hand the day of 18 ."
If it be a writ of capias ad respondendum, that is to say, to be
responsible to answer the plaintiffs demand, thus:
"Executed the day of 18 , and bail and bond
taken," [or "the defendant committed," as the case may be.]
If the process is a summons under our late statute, thus:
"Executed by summoning the defendant, the day of
18
If the process is a warrant from a justice of the peace requi-
ring bail, thus:
"Executed on the day of 18 , and bail and
bond taken for the defendant's appearance before G H, Esq. at
his own house, in county, on the day of
18 . E F,constable."
If the process is a plain warrant, then make the return thus:
"Summoned the defendant, this day of 18 ,
to appear before G H, Esq. at his own house, in county,
on the day of next. E F, Constable."
Form of a bail bond for the appearance of a defendant before a jus-
tice of the peace, when taken on a bail warrant.
"Know all men by these presents, that we, C D, E F and I J,
are held and firmly bound unto A B, or his assigns, in the sum
of dollars, well and truly to be paid; but to be void on
condition that the said C D shall make his personal appearance
before G H, an acting justice of the peace for the county of
at his own house, on the day of 18 , then and
there to answer the said A B upon a plea of debt under
due by note of hand; and not depart from thence until dischar-
SHERIFFS, &C.
475
ged by due course of law. Given under our hands and seals,
this day of 18 [Here sign and seal the bond.]
"If the person so bound shall fail to attend, the justice of the
peace may proceed to try the cause, (after the defendant and
securities have been called,) award judgment, and issue execution
against the principal and securities, for debt and cost." Act
1801, ch. 7.
Form of a bail'bond, under our statutes of 1824-25, when a debtor
is in custody, under a ca. sa.
"State of Tennessee,)
county, j ss*
Know all men by these presents, that we, CD, EF and I J,
of said county, are held and firmly bound to A B, in the sum of
dollars, for which payment, well and truly to be made
and done, we bind ourselves, jointly and severally, &c. Wit-
ness, our hands and seals, this day of 18
"The condition of the above obligation is such, that whereas
the said A B has sued out an execution against the body of the
said C D, to satisfy a judgment for dollars, debt and inter-
est, and for costs, which the said A B recovered against
the said C D, before the circuit [or county] court of [or
before G H, justice of the peace, of county, as the case
may be,] and the said execution having come to the hands of E
F, sheriff [coroner or constable, as the case may be,] of the
county aforesaid, to be executed, and the same having been exe-
cuted by the said E F, by arresting the body of the said C D,
and he being now in custody of said E F: If, therefore, the said
C D shall appear before the judge of the circuit court [or before
the justices of the court of pleas and quarter sessions] on the
Monday of next, at the court house in said county,
[or before G H, justice of the peace for said county, as the case
may be,] and then and there shall make payment of the moneys
called for in said process of execution, or shall then and there
take the oath of insolvency, or make a surrender of the proper-
ty, as prescribed by the laws of this State, then the above obli-
gation shall be void and of no effect, otherwise to remain in
full force. [To be signed and sealed by the parties.]
"Taken by me, and acknowledged before me.
L M, Sheriff, [or other officer.]
476
MISCEIAANEOUS DIVISION.
Form of a return where the execution issued by a justice of the peace
has been levied on land.—"No personal property to be found in
my county. Levied on a tract of land of the said defendant,
situate in said county, on the waters of adjoining lands
with by estimation containing acres,held by
mesne conveyances from grant No. from the State of
to for acres, this day of 18 ." See
act 1786, ch. 14.
This return must be made to the next court of pleas and
quarter sessions, or circuit court, to be holden for the county in
which such levy is made, for condemnation; which the court shall
accordingly do, and issue an order of sale, commonly called a
venditioni exponas; whereupon the sheriff shall proceed to adver-
tise, and sell, &c. irt the same manner as though the execution
had issued from a court of record.
The requisitions of the law are but rarely complied with, in
advertising and selling lands under executions. The law re-
quires the sheriff, or other officer, levying an execution upon
lands, tenements or hereditaments, where the defendant is in
actual possession of the premises so levied upon, to serve the
said defendant with a written notice, stating that the said exe-
cution is levied on said land, tenements or hereditaments; which
said notice shall also designate the time and place of the intend-
ed sale on such levy. The notice must be served on the said
defendant at least twenty days previous to the day of sale. See
act 1799, ch. 14, sec. 1.
Where such a levy is made upon any lands, tenements or here-
ditainents, it shall he lawful for the defendant in the execution to
divide the premises levied on into such parts or lots as to him
shall seem most advantageous, and before 12 o'clock of the day
of sale, present to the sheriff, or coroner, a plan of the same,
and require him to sell a lot at a time until the debt and costs
in the execution shall be satisfied. This plan must bear date
subsequent to the time the execution was levied on said premi-
ses,and be signed with the proper name of the said defendant;
whereupon the said officer Shall sell such portions first of the
premises levied upon as designated by the said defendant in
his plan, until all are sold, or the execution satisfied; but if no
such plan be presented within the time aforesaid? then and in
sheriffs, &c.
477
that case the officer will proceed to sell said lands, tenements or
hereditaments without any division. See act 1799, ch. 14, sec. 3.
When an execution has been issued by a justice of the peace,
and put into the hands of a sheriff, coroner or constable, and
before execution and return thereof takes place, the justice of
the peace resigns, dies or removes out of the county, and the
papers of the justice shall have been returned to the clerk of
the county court, it shall be the duty of the sheriff, or other of-
ficer, to make his return to said clerk, &c. See act 1811, ch.
66, sec. 1.
Constables are, on all occasions, authorized to levy attach-
ments where debtors are about .to remove or abscond, so that
the ordinary process of the law cannot be served on them, and
make return to the next county court, in as full and ample, a
manner as sheriffs could do. See act 1799, ch. 25.
It is made the duty of all constables within this State to give
immediate information of such ordinaries, houses of entertain-
ment, or retailing liquors, without a license, within the bounds
of the captain's company for which such constable may have
been appointed, to some justice of the peace within the county,
who, upon receiving such information, shall immediately issue
his warrant to apprehend such person or persons so informed
against: and, upon their apprehension, shall bind them in re-
cognizance, with good security, to the next circuit or county
court to answer such information; and upon such person failing
or refusing to give such security, they shall be committed to,
jail. See act 1811, ch. 113, sec. 3.
"That where any constable within a captain's company in
this State shall fail to give the information required in the pre-
ceding section, and to appear on behalf of the State and prose-
cute such person so offending, and it shall be made to appear
to the county court, upon proper evidence, that such person has
kept an ordinary or house of entertainment, or retailed liquors
for a greater length of time than three months, the court shall
thereupon order such constable to be removed from office."—
Ibid, sec. 4.
Note.—A house oi private entertainment aoes not fall with-
in the purview of the above section, provided no spirituous li
quor is retailed in such house.
478
MISCELLANEOUS DIVISION.
All sheriffs, coroners and constables are forbid to bid either
directly or indirectly at their own sales, under the penalty of
indictment, fine and imprisonment, and the sales declared void,
and they removed from office. See act 1813, ch. 103,sec. 1.
Sheriffs and coroners are required to advertise all lands or
negroes levied upon by execution, the length of time required
by law, at four of the most public places in the county, one of
which shall be at the door of the court house of his county, and
another at the most, public place in the neighborhood of the
party whose property is to be sold. This mode of advertising
does not supercede the necessity of advertising lands in the pub-
lie gazette. The officer selling without having advertised, as
required in this section, shall be liable to all the pains and pen-
alties pointed out in the above paragraph. Ibid, sec. 2.
No sheriff, coroner or constable is authorized to procure a
warrant in a civil suit, in the name of any other person, without
an order in writing to the constable to do so. Nor is it lawful
for the justice of the peace to issue such warrant without the
personal application of the plaintiff, or his order in writing; and
whatever is declared unlawful is indictable.
A sheriff is entitled to the following fees for services render-
ed by him in virtue of his office:
For every arrest upon a writ, $1 00
Returning a capais non est inventus, 50
Bail bond, 25
Serving copy of declaration in ejectment, 1 00
Serving a subpoena for witnesses, for every person na-
med therein, and making return thereof, 25
Returning a subpoena not found, for each one, 124
Serving scire facias, 024
Returning scire facias not found, 25
Pilloring a person by order of court, and release, each
time, I 00
Every commitment and releasement, each 50
Serving a subpoena in equity, 624
Summoning a witness to a will or other writing, 50
Summoning and empannelling a jury, in each case, 124
Executing every condemned person, including all
cost, 12 50
SHERIFFSj &C.
479
Where a special venire shall issue, for summoning each
juror, 25
For attending on the premises, on a venire facias, for each
day, 2 00
Summoning a jury, executing process, and all other
service in and about the same, of a forcible entry
and* detainer, &c. 5 00
Making return of partition, or writ of dower, and all
necessary service therein, 3 00
As also attending on the premises, per day, 2 00
Serving writ of possession, 1 00
Serving a person on writ of habeas corpus, 1 00
Whipping a person by order of court, 50
Levying an attachment, 1 00
Summoning each garnishee, G2i
Executing warrant of distress, or execution against the
body, 1 00
Levying execution, 1 00
Collecting money on execution, for the first $100, 4 00
At the rate of three dollars for the next, and every oth-
er hundred dollars, not exceeding $300, 3 00
And all above $300, two per cent. 2 00
Collecting tax, six per cent, on amount collected, 6 00
Distraining for tax, 50
Serving copy of notice to take deposition, 50
Calling every action in court, 4
Serving injunction, 1 00
The several constables shall be entitled to the following fees,
&c.
For executing a warrant, $0 50
Summoning witness, &c. 25
Every execution or attachment, 50
Whipping any person by order of court, 33
Whipping any person by order of justice of the peace, 33
Every bail bond, 124
Attendance every day at court, when summoned, 1 00
No sheriff coroner or constable shall receive the fee usus.
ally called the levying fee, unless the execution has been
actually levied, 50
480
MISCELLANEOUS DIVISION.
Four per cent, is the amount of commissions on all sums col-
lected by constables. . $4 00
Every coroner in this State shall be entitled to the ,following
fees for services rendered:
For summoning a jury and witnesses, and holding an inquest
over a dead body, $5 00
The coroner may take and receive the same fees for discharg-
ing the duties of a sheriff, as such sheriff himself would be enti-
tied to, for performing the same services.
CORONERS.
"Where any vacancy may happen bjr death, resignation,
of otherwise, the right of which appointment is, by the con-
stitution, vested in the county court, then, and in that case,
such court shall hold an open and free election, on the second
day of the term in which such appointment is to be made, ad-
mitting all citizens to the privilege of offering as candidates,
except such as are prohibited by the constitution, or some of the
existing laws of this State." Act 1796, ch. 3.
"In case there shall be no person properly qualified to act as
sheriff, in any county in this State, then it shall and may be
lawful for the coroner of such county, and he is hereby requi-
red, to execute all process, civil or criminal, lawfully issuing on
judgments, orders or sentences of courts within the same, until
some person shall be appointed, properly qualified, as aforesaid,
to act as sheriff in said county; and such coroner shall be under
the same rules and regulations, and subject to the same fines
and forfeitures, as sheriffs are by law, for neglect or disobedience
of the duties aforesaid." Act 1779, ch. 5.
The coroner is the person properly qualified to execute all pro-
cess against the sheriff or his relations, or in any case where the
sheriff may be interested.
"It shall not be lawful for any person or persons to bury, or
cause to be buried, the body of any person whatsoever that may
come to their death accidentally, or by unlawful violence, or
other suspicious cause, without first giving notice to the coroner
of his county of such death; or,in case the coroner is absent or
sick, so that his atfendance cannot be had, to some justice of
coroners,
the peace. Every person so offending shall be liable to the sum
of fifty dollars, to be recovered before any tribunal having cog-
nizance thereof—one half to the use of the county, and the oth-
er half to the use of him who will sue for the same." Act 1825,
ch. 31.
If any person so summoned to serve on such jury by any cor-
oner, shall fail to attend upon such inquest, he shall forfeit the
sum of five dollars, to be recovered by such coroner before any
justice of the "peace, for the use of the county in which such in-
quest may have been made." Ibid, sec. 2.
"When any person or persons may by accident be deprived
of life in the presence of any person or persons, it may be law-
ful for any person to give notice to some justice of the peace in
the county where such accident may happen, whose duty it shall
be to cause a jury of seven respectable men to be summoned,
under the same rules and restrictions that govern a coroner's in-
quest by the laws of this State; and if the said jury shall be
of opinion that the person over which the inquest was held was
deprived of life by accident, it shall be lawful for such person
to be buried without notice to the coroner; but should said jury
be of opinion that said person was murdered, or came to his
death by unlawful means or violence, it shall be the duty of the
justice holding such inquest forthwith to give notice to the coro-
ner of his county, and an inquest shall be held, as provided for
in the first section of this act." Ibid, sec. 3.
Coroner's precept to summon a jury.
"State of Tennessee,") ss.—To A B, one of the Constables of said
county. 5 county:
You are hereby commanded to summon twenty-four good and
lawful men of said county, to appear before me, D E, coroner
of said county, at in said county, on the day of
then and there to enquire of, do and execute all such things as,
on behalf of the State, shall be lawfully given them in charge,
touching the death of E F; and be you then and there to certi-
fy what you have done in the premises, and further to do and
execute what in behalf of the said State shall be enjoined you.
Given," &c.
Note.—If the whole twenty-four, or any number more than
twelve shall appear, according to the iungtmons, then the coro-
MISCELLANEOUS DIVISION.
ner shall procure a child under twelve years of age to draw
their names; and in this way elect twelve out of the whole num-
her that may appear, who shall be a jury of inquest to make the
requisite enquiry.
Oath to be administered to the foreman of the jury.
"You shall diligently enquire, and true presentment make,
on behalf of the State, how and in what manner A D [or a per-
son unknown, as the case may he,] here lying dead, came by his
death, and of such other matters relating to the same as shall
he required of you, according to the evidence: So help you
God."
Oath of the rest of the jury.
"Such oath as C E, the foreman of this inquest, has taken for
his part, you, and each of you, shall well and truly observe and
keep, on your parts, respectively: So help you God."
Witness'' oath.
"The evidence you shall give to this inquest, on behalf of the
State, touching the death of A D, shall be the truth, the whole
truth, and nothing but the truth. So help you God."
Inquisition of murder»
"State of Tennessee,)
county,3 ss"
An inquisition taken at in said county, on the
day of in the year of before A B, coroner of and
for the county aforesaid, upon the view of the body of A D, then
and there lying dead, upon the oaths of A B, CD and E F,
good and lawful men of the county aforesaid, who being sworn
and charged to enquire on the part of the State aforesaid, when,
where, how, and in what manner the said A D came to his
death, do say upon their oaths, that A M, of the county and
State aforesaid, not having the fear of God before his eyes,but
being moved and seduced by the instigation of the Devil, on
the day of in the year aforesaid, with force and
arms, at aforesaid, in and upon the said A D, then and
there being in the peace of the State, feloniously and volunta-
rily, and of his malice aforethought, made an assault on him.
the said A D, then and there, with a certain knife made of
iron and steel, the aforesaid A D, in and upon the left side of
the said A D, then and there violently, and feloniously, and of
CORONERS.
his malice aforethought, struck, pierced and gave to the said A
D, then nnd there, with the knife aforesaid, in and upon the
aforesaid left side of him, the said A D, one mortal wound of
the breadth of one inch, and the depth of three inches, of which
said mortal wound the said A D then and there instantly died;
and so the aforesaid A M then and there feloniously, wilfully,
and of his malice aforethought, killed and murdered the said
A D, against the peace and dignity of the State. In witness
whereof, as well the aforesaid coroner, as the jurors aforesaid^
have to this inquisition put their seals, on the day and year
and place aforesaid." [To be signed and sealed by the parties.}
Inquisition found against an accessary, if there was an accessary
to the felony, then to run as follows:
•'And the said jurors further say, upon their oaths aforesaid,
that A A, of, &c. was feloniously present, with a drawn
dirk, at the time the-felony and murder aforesaid, in form afore-
said, was committed, that is to say, on the said day of
in the year of at in the county aforesaid,
then and there aiding, comforting and abetting the said A M to
do and commit the felony and murder aforesaid, against the
peace and dignity of the State." [Then as in the above pre-
cedent.]
Inquisition where one drowns himself.
Proceed as in the inquisition for murder, until you come to
"at aforesaid, in the county aforesaid, then and there
being alone in a common river, there called himself
voluntarily and feloniously drowned; and so the jurors aforesaid,
upon their oaths aforesaid, say that the aforesaid AJD, in man-
ner and form aforesaid, then and there himself voluntarily and
feloniously killed and murdered, against the peace and dignity
of the State." [Concluded as under inquisition of murder.]
Inquisition upon one who dies in jail.
As in the inquisition of murder, until you come to "who say
upon their oaths, that, the aforesaid A D, on the day of the ta-
king of this inquisition, being a prisoner in the jail at in
the county aforesai d, then and there did die of the visitation
of God, and theft and there, in manner and form aforesaid,
come to his death ^ and not otherwise," &c. as in inipiisitiofi 6f
murder.
MISCELLANEOUS DIVISION..
. Inquisition upon non compos mentis.
As in the inquisition of murder, until you come to "who say
Upon their oaths, that the aforesaid A D, on the day and year
aforesaid, and at the time of his death, to wit, from the
day of to the time of his death, was a lunatic, and per-
son of insane mind, and that the said A D being a person of in-
sane mind, as aforesaid, did, on the day of come
alone to the waters of said river, and drowned himself therein:
so the jurors aforesaid, upon their y>aths aforesaid, say that the
aforesaid A D, from the cause aforesaid, in manner and form
aforesaid, came to his death, and not otherwise. In witness,"
&c. as in inquisition of murder.
Inquisition for killing another in his own defence.
As in inquisition of murder, until you come to "upon their
oaths do say, that A K, of, &c at in the county afore-
said, on the day of, &c. in the pe^ce of the State then
and there being, A M, of the county aforesaid, on the day
aforesaid, upon him, the said A K, then and there of his malice
aforethought, did make an assault, and him, the said A K, did
then and there endeavor to beat and kill, and the said A K
seeing that the said A M was so maliciously disposed, to a cer-
tain wall at the said place, called did flee, and from
thence, for fear of death, could not escape, and so the said A K,
in preservation of his life, himself, against the said A contin-
ued to defend, and in his own defence him, the said A M, up-
on the right part of the breast of him, the said A M, with a cer-
tain knife, which the said A K then and there held in his
right hand, did strike, then and there giving to the said A M
one mortal wound of the breadth of one inch, and of the depth
of three inches, of which said mortal wound the said A M, at
in the county aforesaid, did instantly die; and so the said
A K did then and there kill him, the said A M, in his own dc-
fence. In witness," &c. as in the inquisition of murder.
Inquisitions where the murderer is unknown, are the same as
the inquisition of murder, only say that "he came to his death
by the felonious, wilful and malicious murder of some one to
the jurors unknown. In witness," &c. as uilder the inquisitiop
of murder.
jailers.
485
Evidence of witnesses.
"State of Tennessee,)
county,5 SS'
The evidence of A B, of in the said county, taken at
in said county, on oath, before me, C D, coroner of and
jn said county, and also before the jury, then sworn to enquire
how A D, then and there lying dead, came to his death, who
saith that, &c.
"Taken and subscribed, before me, C D, coroner as aforesaid,
the day of ," &c.
JAILERS, AND THEIR DUTY.
"No jailer in this State shall permit the wife of any person
committed to his care, to board or live in the house with said
jailer, under the penalty of fifty dollars, recoverable before any
court having jurisdiction thereof." Act 1826, ch. 45, sec. 3.
"It shall be the duty of the different jailors in the State of
Tennessee to furnish the prisoners confined in their respective
jails, with clean straw beds, and sufficient blankets to keep them
comfortable, and provide two meals per day of good, sound
bread and meat, well cooked, with vegetables at one of said
meals, and plenty of good clean water, twice each day from the
first of May to the first of November, and once each day from
the first of November to the first of May, and shall have two
pieces of clothing washed every week for each prisoner, and
shall havo the privy buckets emptied once in every twenty-four
hours, and shall furnish the necessary tools for shaving once eve-
ry week: shall keep the jail clean, and convey letters from per-
sons to their counsel and others, after examination and commit-,
ment for trial, and shall seal and put them into the post office if
requiredj shall admit persons having business with prisoners
without charge; and shall be present at all interviews between
prisoners and others, except their counsel." Ibid, sec. 1.
4No jailer in this State shall permit any prisoner to have more
than a half pint of spirits in any twenty-four hours, under the
penalty prescribed in the third section of this act." Ibid, sec. 4.
"Ail jailers, or keepers of public prisons, in the different
counties in this State, are hereby exempted from attending mus-
486
MISCELLANEOUS DIVISION.
ter, or performing other militia duty now required by law*'-' See
acts 1820, ch. 17, and 1826, ch. 18, sec. 30.
"The keeper of any jail in this State shall demand and receive
thirty-seven and a half cents for every twenty-four hours he pro-
vides good, wholesome water and diet for each and every pris-
oner committed to his charge, and fifty cents for each turnkey
where the prisoner may be lawfully removed by any process
whatever." Act 1819, ch. 56.
DEPOSITIONS, &c.
The practice of taking and introducing into courts of justice
the depositions of witnesses, instead of requiring their personal
attendance upon the trial of the cause, in open court, is a de-
parture from the requirements of the common law. The max-
im of the common law is, "prohationes debut esse evidentis el per-
spicaa/" that is to say, "proof makes clear and evident the point
in issue." And nothing deserves the name of proof that does
not demonstrate and ascertain to the mind of a jury the truth of
the point in issue; therefore, it is not the quantity but the qual-
ity of the things presented as facts, that give them the name of
evidence. And whether the things deposed to, be facts or not,
generally depend upon a variety of circumstances which can
be attained, in most instances, where twelve jurors have the wit-
ness before them in open court. There is much in the manner
of telling the truth. It requires no effort; it flows freely and
purely. But falsehood comes forth with labor and pains; dis-
coverable in the acts, words, countenance or tone of voice of the
witness. These are all lost to a jury when the evidence is
produced in the form of deposition. Therefore, the commit
sioner who takes a deposition ought to use the greatest circum-
spection possible to get the statement of the witness placed on
the face of the deposition, in the exact form that the witness has
it in his mind. To arrive at that end, if the witness can write
pretty well, after he is sworn, let him write out a general state-
ment of all he knows upon the subject, in answer to a general
request like this from the commissioner, written down as the
commencement of the deposition:
DEPOSITIONS.
1. "Please state all you know in relation to the matter in dig-
pute between the parties, with the time, place 'and circums'.an-
ces dependant on the subject."
If the witness is not a tolerable ready writer, then the com-
missioner himself, or some person who is well qualified to act as
a clerk, and who is not of counsel, or related by blood or mar-
riage to either of the parties, and in nowise interested in the
event of the cause, must write down the statement of the wit-
ness in his own words precisely. The deposition must contain
the statement of the witness, and not the commissioner's under-
standing of the witness' statement. Therefore, the very identi-
cal words of the witness must be put down, that a court and ju-
ry may interpret and spell out the meaning of the witness, and
not of the commissioner.
No one can legally act as a commissioner who is not wholly
indifferent between the parties, unless by the mutual consent of
both parties. He must be as clear of exceptions as his clerk is
required to be.
The parties, or their counsel, are not permitted to frame an-
swers for the witness. All their questions should be in wri-
ting, and placed as an interrogatory on the face of the deposi-
ion, before the witness should make the least reply to it: for
this plain reason, that the case on the deposition ought to look
the same way on paper that it would do in open court; and if
the question is asked in open court, the answer will be heard
by the jury, and the party cannot suppress it at his pleasure.—
But if the commissioner should permit a party to cull and pick his
answers drawn from a witness, if he possesses any ingenuity, he
could make the testimony of the witness any thing but what the
witness intended it almost; and thereby produce great injustice
to both his adversary and the witness.
The party for whom the deposition is taking, or his counsel,
must go through with all his interrogatories in chief, before the
opposite party should be permitted to ask a question, or to say
any thing, except to make his objections to the manner or
matter of the question. The commissioner is to sustain or over-
rule the objections, as to him shall seem right; but he must place
the question on the deposition, and his reasons for overruling or
488
miscellaneous division.
sustaining it, and let the witness answer them as though the
question had not been excepted to.
The commissioner ought not to suffer any question to be pro-
pounded, on the part of the examination in chief, of a drawing
character—that is to say, such a question as necessarily dictates
an answer—as, "Did you not see or hear the adverse party, or a
particular witness say or do so and so;'1 hut the question should
he framed thus, "What did you see A B do," in a particular mat-
ter, as the fact may he, or "What did you hear him say," upon
a particular subject. This mode does not elicit a particular an-
swer, hut leaves the witness free to answer the truth. But on
part of the cross examination, such a drawing mode of question
is not only admissible but proper, so long as the interrogatories
relate to the subject of the facts spoken of upon the examina-
tion in chief, but no longer. Whenever the party cross examin-
ing is desirous of procuring a new fact from the witness, that is
to say, one not spoken of upon the original examination, he must
ask the question in the same manner as though he was examin-
ing the witness in chief. When the cross examination has clo-
sed, the adverse party can legally ask no question except such
as necessarily grows out of the cross examination; otherwise
there would be no closing point to the testimony.
The caption to a deposition ought always to show the com-
mission, the time and place of taking the deposition, and who
are present at the taking the same, whether they be the parties, or
either of them, or their attorneys, or either of them—after the
form following:
"State of Tennessee,)
, '> ss.
county,5
In pursuance of the annexed commission, to me, G II, an act-
ing justice of the peace for said county, directed from the cir-
cuit court [or court of pleas and quarter sessions, as the case
may be,] for the county of . and State aforesaid, I have
called and caused E F, a witness on behalf of the plaintiff, (or
defendant, as the case may be,) to come before me, this
day of in the year of our Lord one thousand eight hun-
dred and at in the county aforesaid, for the purpose
of taking his deposition in writing, to be read as evidence in a
certain suit in said court depending, wherein A B is plaintiff,
depositions.
489
and C D is defendant, in the presence of the said parties, (or
their counsel, or one of the parties and the counsel of the other,
by name, or in the presence of their counsel, as the case may
he; or if no one be there for either party, say so, thus: 'neither
of the parties or counsel being present,')—the said E F being
first duly sworn, deposeth and saith, as follows:" [here state the
general interrogatory by the commissioner, thus: "State all you
know in relation to the matters in dispute between these par-
ties in the suit mentioned in this caption," &c. as before point-
ed out.]
After the deposition is all written down in a fair hand, the
witness, if he can do so, ought to read it over carefully and cor-
rect it, if any corrections are necessary; but if the witness is un-
able to read it accurately, and to correct it truly, it must be read
to him by the commissioner, and corrected in the manner point-
ed out hy (he witness, with which neither of the parties are to
have any the least concern. This reading and correction must
take place before either party, or any one else can have either a
public or private interview with the witness. When the depo-
sition is thus corrected, the witness must sign the same with his
proper name, in token that he subscribes to the truth of the
allegations in the deposition knowingly. Whereupon the com-
missioner shall make out his certificate in the form following,
viz.
"I, G H, an acting justice of the peace for the county afore-
said, certify that the above deposition was taken by me at the
time and place stated in the caption, in the presence of the persons
therein stated, after the said witness was duly sworn; and that
all the answers given to the questions therein propounded are
in the hand writing of the said witness, [or myself, or my clerk,
who is wholly disinterested, as the case may be,] and that I am
not of kin or counsel to either of the parties; that the said de-
position was read and corrected and signed by the said witness,
and that the same has not been out of my hands until envelo-
pedand sealed up by me. Given under my hand and seal, the
date above written. G H. (l.s.)
The commissioner will seal the deposition with two seals at
least, and write his name officially across each seal, so that the
same cannot be broken open without discovery. The suit in
3 M
490
MISCELLANEOUS DIVISION.
Which the deposition has been taken must be stated on the back
of the envelope, and the party for whom taken, and then direct-
ed to the clerk of the court where the suit is pending.
When the clerk receives the deposition, he ought to tender an
affidavit, written on said envelope, "that the deposition is in the
exact condition it was when he received it from the hands of
the commissioner;" which affidavit must be signed by the bear-
er of the deposition, whether plaintiff or defendant, or other
person, and be attested by the said clerk.
Where witnesses will not appear before the commissioner,
upon request of the party desiring their testimony, the commis-
sioner upon reeeiving the commission authorizing him to take
the deposition therein, shall, upon the request of the party, by
affidavit, issue a subpoena for said witnesses in the form following:
Subpoena*
"State of Tennessee,) ss.—To any lawful officer to execute and
county.) return:
You are hereby commanded to summon E F, if to be found in
your county, personally to be and appear before me, G H, a
commissioner appointed by the court of the county of
to take your deposition at on the day of
18 then and there to testify, and the truth to speak,
as a witness on behalf of the plaintiff {or defendant, as the case
may be,] in writing to be read in evidence in a certain suit in
said court pending, wherein A B is plaintiff and C D is defend-
ant. In this you shall in nowise omit, under legal penalty.—
Given under my hand and seal, this day of 18
G II. (L.S.)"
This subpoena may be served by a constable as well as a sheriff.
The witness is entitled to two entire days' notice by such subpoe-
na, before the time of taking such deposition. See act 179.),
ch.3.
If any person summoned as a witness before any commission-
er appointed to take depositions, shall refuse to give testimony
on oath, so that his deposition may be taken, such person so
refusing shall, by the said commissioner before whom he shall
be summoned, be committed to the common prison, there to re-
main without bail or mainprize, until he shall be willing to give
STATUTE OF FRAUDS.
491
his testimony in such way as the law doth direct. See act 1794,
ch. 1, sec. 32.
The form of the mittimus may be made out from those in the
second division.
The sheriff or his deputy may serve notices to take depositions,
and his return is sufficient evidence of the service of such notice.
Form oj the \ notice.
Mr. A B.—Sir: You will please to take notice, that I shall
proceed to take the deposition of B F, on the day of
18 at in the county of to be read as evi-
dence in a certain suit wherein yoii are plaintiff and I am defen-
<3ant, pending in the circuit court, [or court of pleas and quar-
ter sessions, or before G H, a justice of the peace for the county
of ] when and where you may attend and cross examine,
if you please. C D."
An exact copy must be made out of each notice, and one of
them left with the party to be notified, and on the back of the
other must make the return of the service he made.
It will not be a good notice to say, "to take the deposition of
A B, and others," for any one else than A B. The notice to be
good, must contain the name of each witness; for the word oth-
ers, is no notice at all as to those whose names are not mention-
ed.
STATUTE OF FRAUDS.
The law has wisely interposed its power to prevent the too
frequent repetition of swearing in courts of justice, to establish
certain contracts, from which many perjuries might be commit-
ted. It was therefore thought best to declare certain contracts
void, where they were made to depend on the mere memory of
man. The statute of frauds and perjuries was passed 29th Oct.
1801, adopting a certain portion of the statute of 29th Car. IL
and rejecting the balance of it.
The following contracts are void unless evidenced by some
note or memorandum in writing, signed by the party to be char-
ged thereby.
1. Says the statute, "No action shall be brought whereby to
charge any executor or administrator upon any special promise,
to answer any debt or damages out of his own estate."
492
MISCELLANEOUS DIVISION.
2. No action shall be brought "whereby to charge the defen-
dant upon any special promise to answer for the debt, default or
miscarriage of another person."
3. No action shall be brought "to charge any person upon
any agreement made upon consideration of marriage."
4. No action shall be brought "upon any contract for the sale
of lands, tenements or hereditaments, or the making of any lease
thereof for a longer term than one year."
5. No action shall be brought "upon any agreement which is
not to be performed within the space of one year from the ma-
king thereof."
Unless the promise or agreement upon which such action
shall be brought, or some memorandum or note thereof shall be
in writing, and signed by the party to be charged therewith, or
some other person by him thereunto lawfully authorized, all such
contracts are void.
DEEDS OF CONVEYANCE.
We come now to treat of the various deeds of conveyance;
and but little more can be said of them than what their forms
will disclose, as I have already swelled the book beyond its in-
tended size. I had intended to have given a short treatise on
taxes, tax sales and tax deeds, under this division; but my bounds
will not permit me to do so. It is possible that it would have been
more curious than useful; I will, however, under this head, give
the form of the sheriff and collector's deed of conveyance for land
sold for the non-payment of tax.
Deed, in English, fait, in French, or factum, in Latin, is a wri-
ting signed, sealed and delivered, to perpetuate and prove the
agreement of the parties to what is contained therein; and is to
be written on paper, parchment, vellum, satin, or the like.—
Ten things are necessarily incident to a deed.
1. It must be in writing. 2. On parchment, paper, vellum,
satin, or the like. 3. A person able to contract. 4. By a suf-
ficient name. 5. A person able to be contracted with. 0. By
a .sufficient name. 7. A thing to be contracted for. 8, Apt
and proper words. 9. Signing and sealing. 10. Delivery.
The first form of a deed to which the reader's attention is call-
DEEDS Of CONVEYANCE*
493
ed, is that of bargain and sale*—as all our deeds of conveyance
in this country, for the conveyance of lands, tenements and he-
reditaments, are deeds of bargain and sale.
Form, of a deed of bargain and sale of lands.
"This indenture, made the tenth day of June, in the year of
our Lord one thousand eight hundred and thirty-two, by and be-
tween John Selwell, of the county of C, of the one part, and
Charles Fairtrade, of the county of F, of the other part: Wit-
nesseth, that the said John Selwell, for and in consideration of
the sum of five thousand dollars, to him in hand well and truly
paid, the receipt whereof is hereby acknowledged, hath grant-
ed, bargained and sold, and by these presents doth grant, bar-
gain and sell, unto the said Charles Fairtrade, his heirs and as-
signs, a certain tract or parcel of land, situate, lying and being
in the county of B,^on the waters of and adjoining lands
with E on the south, and F on the west, G on the north, and H
on the east: beginning and cornering on a poplar, marked as a
corner; thence, with the line of E, west, 320 poles, to a sugar
tree; thence northj with the lines of F, 320 poles, to a stake;
thence east, with the lines of G, 320 poles, to a hickory; thence
south, with the lines of H, 320 poles, to the beginning—by esti-
mation containing six hundred and forty acres of land: with all
and singular the hereditaments and appurtenances thereunto
belonging, or in anywise appertaining, and all the estate, right,
title, interest, claim and demand whatever of him, the said John
Selwell, of, in and to the said lands and premises, and every part
and parcel thereof: To have and to hold the said land and pre-
mises above mentioned, and every part and parcel thereof, with
the appurtenances, unto the said Charles Fairtrade, his heirs and
assigns, to the only proper use and behoof of the said Charles,
his heirs and assigns forever: And the said John, for himself
and his heirs, the .said lands and premises, and every part and
parcel thereof, against himself and his heirs, and all and every
other person whatever, will warrant and forever defend to the
said Charles, his heirs and assigns. In witness whereof, the said
John Selwell has hereunto sethis hand and seal, the date above
written. JOHN SELWELL. (l.s.)
"Signed, sealed and delivered)
in presence of •" j
494
MISCELLANEOUS DIVISION.
The foregoing is a deed with general warranty.
A deed with special warranty is, in every respect, the same
as a deed with general warranty, until you come to the habcn-
dum and warranty—it then runs thus: To have and to hold the
said land and premises above described, and every part or par-
eel thereof, with the appurtenances, unto the said E F, his heirs
and assigns forever; and the said J. S> for himself and his heirs,
and all persons claiming, or to claim, in, through or by him,
the said J. S , will warrant and forever defend, and no further.
In witness whereof," &c. as before.
A quit claim deed is like the deed with general warranty, un-
til you come to the words "bargained and sold;" instead there-
of it must run thus: "remised and quit claim, and by these pre-
sents doth remise and quit claim unto the said C. F., his heirs
and assigns forever, to a certain tract or parcel of land, with
the appurtenances thereunto belonging, or in any wise apper-
taining, situate, lying and being in the county of B, [&c. as to
the locality and description as in the form of general warranty]—
with all the rents, issues and profits thereof, and all the estate,
right, title, interest, claim and demand whatever,of him, the said
J. S., of, in and to the above remised premises, and every part
and parcel thereof, to the sole and proper use and behoof of
him, the said C. F., his heirs and assigns forever. In witness
whereof," &c. as before.
DEED OF GIFT.
A deed of gift is not predicated upon what the law calls a
valuable consideration, as money, goods, lands, &c. but upon
good consideration, such as love and natural affection between
near relatives, and favor and esteem towards others. These deeds
are sometimes made to supersede the necessity of a last will and
testament.
Form of a deed of gift of land.
"This indenture, made the fifteenth day of July, in the year
of our Lord one thousand eight hundred and thirty-three, by and
between A B, of the eounty of C, and State of Tennessee, of
the one part, and C D, his nephew, of the county and State
aforesaid, of the other part: Witnesseth, that the said A B, for
and in consideration of the natural love and affection which he,
DEEDS OF CONVEYANCE.
495
the 6aid A B, bears towards his said nephew, the said C D, hath
given and granted, aliened, enfeoffed and confirmed, and by
these presents do give, grant, alien, enfeoff and confirm unto the
said C D, his heirs and assigns, a certain tract or parcel of land,
with the appurtenances thereunto belonging, situate, lying and
being in the county of on the waters of and bound-
ed as follovrs: [here describe its butts and bounds]—containing
by estimation . acres, to the said C D, his heirs and assigns,
forever: To have and to hold the said land and premises, with
the appurtenances thereunto belonging, or in anywise apper-
taining, unto the said C I), his heirs and assigns, forever: And
the said A B, for himself and his heirs, the said land and pre-
mises, and every part and parcel thereof, against himself, his
heirs, assigns, and all and every person whatever, will warrant
and forever defend by these presents. In witness," &c. as be-
fore.
A deed of gift may be made for lands and personal property
united. The form will be as in the last, until you come to the
end of the locality and description of the land, then say after
the word acres, "and also the following articles of personal pro-
perty, goods and chattels, hereby given, granted and confirmed,
to the said C D, his heirs and assigns," &c. Here describe each
article of the property, goods and chattels, &c.
A DEED OF RELEASE.
This kind of deed is most usually made by a person who
claims some title to a tract of land, or some part thereof, or some
interest therein, or to other real estate of which the person to
whom the conveyance is made, is seized and possessed by an
adverse title, or a pre-existing lease from the person making the
release. This deed is usually predicated on a valuable consid-
eration.
Form of a deed of release.
"To all to whom these presents shall come—A B and C D send
greeting:
For that whereas we, the said A B and C D claim title by
grant from the State of Tennessse, to ourselves, for three hun-
dred and twenty acres of land, situate, lying and being in the
county of on the waters of and bounded as follows:
496
MISCELLANEOUS DIVISION.
[here describe the boundary]—and whereas one E F is in posses-
sion of, and claims title to the said land adversely to our title, and
to prevent lawsuits and strife, and with a mutual desire for peace
and quiet, we, the said AB and C D, have agreed to release,for
the consideration hereafter mentioned, all the right, title,interest,
claim and demand we, the said A B and C D, have of, in and to
the above described lands, to the said E F, his heirs and assigns.
Now, know ye, that the said A B and C D, for and in considera-
tion of two hundred and fifty dollars, to them in hand paid by
the said E F, the receipt whereof is hereby acknowledged, do
remise, release, and forever quit claim, unto the said E F, hi3
heirs and assigns forever, of all the estate, right, title, interest, pro-
perty, claim and demand, of them, the said A B and C D, of, in
and to the above described tract of land, and now in the actu-
al possession and seizin of the said E F: To have and to hold,
all and singular, the lands and premises hereby remised and re-
leased, with the appurtenances, unto the said E F, his heirs and
assigns, forever." [To be concluded as before.]
Form of a Fed of release for all demands.
"Know all men by these presents, That I, A B,cf the county
of and State of Tennessee, as well for and in consideration
of the sum of dollars, to me in hand paich by C D, the
receipt whereof is hereby acknowledged, as for divers other good
causes and valuable considerations, have remised, released, quit-
claimed and forever discharged, aud by these presents, for me,
my heirs, executors and administrators, do remise, release, quit-
claim and forever discharge the said C D,-his heirs, executors,
and every of them, of and from all and all manner of action and
actions, cause and causes of action and actions, suits, debts, dues,
sum or sums of money, accounts, reckonings, bonds, bills, special-
ties, covenants, contracts, agreements, promises, damages, judg-
ments, escheats, executions, claims and demands whatever, in law
or equity, or otherwise however, which against the said GDI
ever had, now have, or which I, my heirs, executors or executors,
hereafter can, shall or may have, for, upon or by reason of any
matter, cause or thing, whatever, from the beginning of the world
to this date. In witness whereof," &c. as before.
DEEDS OP CONVEYANCE.
497
Form of a deed for personals.
"This indenture, made the sixth day of August, in the year of
our Lord one thousand eight hundred and thirty-three, by and
between A B, of the county of and State of Tennessee,
of the first part, and C D, of the county of and State
aforesaid, of the other part: Witnesseth, that for and in conside-
ration of the sum of dollars, well and truly paid by the said
C D, the receipt whereof is hereby acknowledged, before the
signing and sealing of these presents, hath bargained, sold, trans-
ferred and conveyed, and by these presents doth bargain, sell,
transfer and convey, unto the said C D, his heirs and assigns, ex-
ecutors and administrators, the following property, goods and
chattels, viz.—two bay horses, one sorrel mare, six milch cows,
of a red and white color, and one mahogany sideboard, and one
set of dining tables, which are hereby bona fide delivered to the
said C D, at and before the signing, sealing and delivery of this
indenture: To have and to hold the said two horses, one mare,
six cows, one side-board and set of tables, from him, the said A B,
his heirs, executors, administrators and assigns, unto the said C
D, his heirs, &c. and the said A B the above described proper-
ty, and every part and parcel thereof, from himself, his heirs, &c.
and all others whatever, will warrant and forever defend by these
presents. In witness whereof," &c. as in the deed with general
warranty.
Form of a sheriff and collector's deed, for land sold for the tax.
"This indenture, made this fourth day of May, in the year of
our Lord one thousand eight hundred and thirty-two, by and be-
tween A B, sheriff and collector of the public tax of the county
of R, and State of Tennessee, of the first part, and C D, of the
county and State aforesaid, of the other part: Witnesseth, that
whereas there was situate in the county aforesaid, a certain tract
of land belonging to one E F, containing by estimation one
hundred acres, which said tract of land the said E F failed to
list, or have listed, return or have returned, for taxes for the year
of our Lord one thousand eight hundred and thirty, nor was the
tax paid on the same for said year by the said E F, or any oth-
er person whatever, whereby the said tract of land become lia-
ble to double tax, and there being no personal property upon
which to distrain in said county, and therefore was reported to
3 N
498
MISCELLANEOUS DIVISION.
the court of pleas and quarter sessions for said county, as requi-
red by law, at the term of said court, by the said A B,
sheriff and collector as aforesaid; thereupon a judgment was en-
tered up against said tract of land, in the name of the State of
Tennessee, for said double taxes, costs and charges, due and ow-
ing thereon for the year eighteen hundred and thirty aforesaid,
and it was then and there ordered and adjudged by said court,
that the said tract of land, or so much thereof as should be suffi-
rient to satisfy the said double taxes, costs and charges, be sold
as the law directs; and whereas the copy of said report and
judgment of condemnation came into the hands of the said AB,
wherein and whereby he, the said A B, as sheriff, was directed
to sell said land as the law directs; and whereas the said land
was advertised for the time and in the manner pointed out by law,
that said tract of land would be sold at the court house door on
the first Monday of November, 1831; and whereas the said land
was then and there offered for sale (the said double tax, costs and
charges remaining unpaid) to the highest bidder, at the court
house door aforesaid, within the hours pointed out by law; and
then and there the said A B required some bidder to take any
quantity less than the whole for the amount of said double tax-
es, costs and charges thereon, but no person would' do so, and it
being cried as required by law, the said C D did then and there
bid dollar cents, it being the amount of the said dou-
ble tax, costs and charges on said tract of land, and it being the
best and highest bid offered or made for said tract of land, it was
then and there, by the said A B, sheriff and collector as aforesaid,
struck off to the said C D; and whereas twelve months having
expired since the day of sale aforesaid, and the said tract of land
remains unredeemed: Therefore, know all men by these presents,
that the said A B, as sheriff and collector as aforesaid, for and in
consideration of the said sum of dollars cents, it being
the amount of the said double taxes, costs and charges, and it
being the amount bid for said land, and then paid to the said A
B by the said C D, the receipt whereof is hereby acknowledged,
by virtue of the power and authority in the said A B, as such
sheriff and collector of the county aforesaid, hath bargained,
sold, conveyed and confirmed, and by these presents doth bar-
gain, sell, convey and confirm, unto the said C D, his heirs and
deeds of conveyance.
499
assigns, the said tract of land, with its appurtenances, situate, ly-
ing andheing in the county aforesaid, on the waters of [here
insert the butts and bounds of the land]—with all and singular
the hereditaments and appurtenances thereunto belonging, or in
anywise appertaining, and all the estate, right, title, interest,
claim and demand whatever, of him, the said E F, his heirs, &c.
of, in and to the said lands and premises, and every part and par-
eel thereof, with the appurtenances, in as full and ample a man-
ner as the said A B, as the sheriff and collector of the county
aforesaid, is by law authorized to do, unto the said C D, his
heirs and assigns, to the only proper use and behoof of the said
C D, his heirs and assigns, to have and to hold forever: And the
said land and premises, and every part and parcel thereof,
against himself, the said E F, and their heirs and all others, the
said A B will warrant and defend, as far as he is authorized and
empowered to do as sheriff and collector as aforesaid, to the said
C D, his heirs and assigns. In witness whereof, the said A B
hath set his hand and seal, as sheriff and collector of the county
aforesaid, the date above written. A B. (l.s.)
In pointing out the duty of a sheriff, I spoke of what was re-
quired of him in advertising and selling land for debt. I will
here give the form of a sheriff's deed to the purchaser.
Form of a sheriffs deed.
This indenture, made this tenth day of May, in the year of our
Lord one thousand eight hundred and thirty-three, by and be-
tween A B, as sheriff of the county of of the first part,
and C D, of said county, of the other part: Witnesseth, that
whereas one G H recovered a judgment for the sum of one thou-
sand dollars debt, and for costs, against one E F, in the
circuit court of the county aforesaid, at the term of said
court, in the year of our Lord one thousand eight hundred and
thirty-two, upon which said judgment a writ of fieri facias issu-
ed, bearing date the day of in the year aforesaid,
and came to, and was deli vered into the hands of the said A B, as
sheriff as aforesaid, on the day of in the year afore-
said, and there not being personal property of the said E F
enough to be found within said county to satisfy said execution,
and the same remaining unpaid, the said A B, by virtue of his
office of sheriff as aforesaid, did, on the day of in
500
MISCELLANEOUS DIVISION.
the year aforesaid, levy the same upon a certain tract or parcel.
of land containing by estimation two hundred and fifty acres,
situate, lying and being in the county aforesaid, on the waters of
adjoining lands with and beginning on
[here insert the boundary] as the property of the said E F, it
being the tract of land whereon the said E F then and now
resides, which said tract of land, with its appurtenances, was by
the said A B, sheriff as aforesaid, advertised for sale for more
than forty days, in a newspaper printed at in said coun-
tyj and by advertisement in writing at the other places required
by law, and for the length of time required by law; and the said
A B, as sheriff, did give the said E F more than twenty days'
notice in writing of the time and place when and where said
land would be offered for sale, unless the judgment and cost afore-
said should be previously paid and satisfied, and the same re-
maining unsatisfied, the said A B, as sheriff as aforesaid, did
proceed to sell said land, at the court house door of said count}',
on the day of in the year aforesaid, that being
the time designated in said advertisements and notice, (and the
said E F not presenting the said sheriff with a regular plan by
which he designated and laid off said tract of land into lots,
nor did the said E F desire the same to be sold in lots,) entire;
and the^said land being offered to sale to the highest bidder, and
the sale being cried by the said A B, as sheriff aforesaid, at the
place, on the day aforesaid, between the periods designated by
law; and amongst other bidders, the said C D did then and
there bid for said land the sum of one thousand one hundred
dollars, that being the best and highest bid, the said tract of land,
with the appurtenances, was struck off to the said C D: There-
fore, know all men by these presents, that the said A B, as sher-
iff as aforesaid, by virtue of his office, in consequence of the pre-
mises aforesaid, and for and in consideration of the said sum of
one thousand one hundred dollars, to the said A B by the said
C D well and truly paid, the receipt whereof is hereby acknow-
ledged, hath bargained, sold, conveyed and confirmed, and by
these presents doth bargain, sell, convey and confirm, unto the
said C D, his heirs and assigns, in as full and ample a manner
as his office authorizes and empowers him to do, the above de-
DEEDS OF CONVEYANCE.
501
scribed tract of land, with all and singular the hereditaments
and appurtenances thereunto belonging, or in any wise apper-
taining, and all the estate, right, title, interest, property, claim
and demand whatever, of him, the said E F, of, in and to the
said land and premises, and every part and parcel thereof: To
have and to hold the said land and premises above mentioned, and
every part and parcel thereof, with the appurtenances, unto the
said C D, his heirs and assigns, to the only proper use and be-
hoof of the said C D,his heirs and assigns, forever: And the said
A B, as sheriff as aforesaid, for himself and for the said E F, their
heirs and assigns, the said land and premises, and every part and
parcel thereof, against himself and his heirs, as sheriff as afore-
said, and against the said E F and his heirs, and every other
person, will warrant and defend as far as his said office of sheriff
as aforesaid authorizes and binds him to warrant and defend.—
In witness, &c. as in the tax deed.
Form of a mortgage deed to secure endorsers in bank.
"This indenture, made this fifth day of March, in the year of
our Lord one thousand eight hundred and thirty-three, by and
between A B, of the county of and State of Ten-
nessee, of the one part, and C D and E F, of the county and
State aforesaid, of the other part:—Whereas, the said A B
is desirous of obtaining an accommodation by loan in the Union
Bank of the State of Tennessee, for the sum of one thousand
dollars, and to enable him to do so, the said C D and E F have
endorsed a note for the sum aforesaid, payable and negotia-
ble in said bank, due four months after date, drawn by the
said A B, and dated this day, and which is also this day dis-
counted in said bank, and which said note it is contemplated to
renew, or take up with a bill of exchange, at six months, paya-
ble in New Orleans, and the said A B being desirous to secure
the said C D and E F against all responsibility as endorsers of
the note aforesaid: Therefore, this indenture witnesseth, that
the said A B, as well for the consideration of securing his said
endorsers from the payment of the note aforesaid, as the sum of
one dollar to him in hand paid by the said C D and E F, at and
before the sealing and delivery hereof, the receipt whereof is
hereby acknowledged, hath granted, bargained, sold, transferred
and conveyed, and by these presents doth grant, bargain, trans-
502
MISCELLANEOUS DIVISION.
fer and convey unto said C D and E F, their heirs and assigns,
a certain tract or parcel of land containing by estimation two
hundred acres of land, situate, lying and being in the county of
[here describe its locality and particular butts and bounds]
—together with the hereditaments and appurtenances thereunto
belonging, or in any wise appertaining, with all the estate, right,
title, interest, property, claim or demand of him, the said A B,
and his heirs: To have and to hold the said tract of land, with
the hereditaments and appurtenances, unto the said C D and E
F, their heirs and assigns, to the only proper use and behoof of
the said C D and E F, and their heirs and assigns, forever:
Provided, nevertheless, that if the said A B, his heirs, executors
and administrators, shall well and truly pay, or cause to be paid
unto the said bank, the said note of one thousand dollars, when
the same shall fall due, or by other lawful means save and keep
harmless and indemnified the said C D and E F, their heirs, ex-
ecutors and administrators, from the payment of said note,
and all cost and damages, as securities as aforesaid, then and
from henceforth, as well this present indenture, and the estate
hereby granted, as the said recited note for the sum of one thou-
sand dollars, shall cease, determine and become absolutely null
and void, any thing herein contained to the contrary notwith-
standing. In witness whereof," &c.
This form of mortgage may be varied so as to suit any kind
of case.
Form of a deed of trust to secure a creditor.
"This indenture, made this second day of July, in the year of
our Lord one thousand eight hundred and thirty-three, by and
between A B, of the county of G, and State of Tennessee, of
the first part, and C D, of the county and State aforesaid, of the
other part—Whereas the said A B is indebted to one I J, in the
sum of two thousand five hundred dollars, by two notes of hand
for the sum of twelve hundred and fifty dollars each, dated the
7th day of March, 1831j and due the 25th day of December
last past, and the said I J being willing to wait twelve months
longer with the said A B, upon having his debts and interest se-
cured, and the said A B being willing to give him a certain as-
surance that his money shall be paid at the expiration of twelve
months from this date: Therefore,this indenture witnesseth, that
DEEDS OF CONVEYANCE.
503
the said A B as well in consideration of securing the said I J in
the faithful payment of the debt and interest aforesaid, as also the
sum of one dollar to him, the said A B, in hand paid by the said
C D, the receipt whereof is hereby acknowledged, hath granted,
bargained, sold, transferred, and assigned and set over, and by
these presents doth grant, bargain, sell, assign, transfer and set
over, unto the said C D, his heirs and assigns, a certain tract or
parcel of land containing by estimation one hundred acres, situ-
ate, lying and being in the county aforesaid, on the waters of
[here desciibe the butts and bounds truly]—and also three ne-
gro men, P, R and S by name, slaves for life, and two negro wo-
men, D and B by name, slaves for life, and one wagon and four
bay horses, and their gearing suitable to said wagon: To have
and to hold the said land and premises, and the said negroes,
wagon, horses and gears, and each and every of them, unto the
said C D, his heirs and assigns, to tha proper use and behoof of
the said C D, his heirs and assigns, forever: In trust, however,
and to the intent and purpose, that if the said two notes for the
sum of twelve hundred and fifty dollars each, and all lawful in-
terest thereon, are not well and truly paid off and discharged be-
fore the expiration of twelve months from this date, by the said
A B, or some other person for him, then and in that case the
6aid C D shall, in the executing the trust hereby taken upon
himself, advertise the said property, real and personal, for the
space of twenty days, in a newspaper printed at
and by written advertisements at four of the most public places
in said county, one of which shall be at the court house door of
the county aforesaid, that he will expose to the highest bidder
the said land, negroes, and wagon, horses and gears, on the said
tract of land, on a particular day, for ready money; and if the
money aforesaid be not still paid on the day designated as afore-
said, then the said C D shall proceed to sell the above described
real and personal property to the highest bidder, for ready mo-
ney, and after said sale to. make good and sufficient deed and
bills of sale, in fee, for said property, conveying all the right
and title the said A B, or his heirs, may have in and to the
the same: Provided, nevertheless, that if the said money and in-
terest should be paid before the day of sale herein mentioned,
504
miscellaneous division.
then this indenture to be wholly void, and of no effect either in
law or equity. In witness whereof, the said A B hereunto seta
his hand and seal, the date above written. A B. (l.s.)
Form of a deed of partition between two tenants in common.
"This indenture, made this seventh day of January, in the
year of our Lord one thousand eight hundred aud thirty-three,
by and between A B, of the county of P, and State of Tennes-
see, of the one part, and C D, of the county of H, and State
aforesaid of the other part.—Whereas, the said A B and C D
are tenants in common in a certain tract of land containing by
estimation six hundred and forty acres, situate, lying and being
in the county of S, on the waters of adjoining lands with
A, B, C and D, and beginning on [here describe the bounds of
the land.]—Now, this indenture witnesseth, that the parties to
these presents have mutually agreed to make, and by these pre-
sents do make, a full, just and equal partition and division be-
tween them, of and in the aforesaid tract of land, according to
their respective shares and interest therein, in manner following,
that is to say, the said A B and his heirs shall have all that piece
or allotment of land, and part of said tract, "beginning [&c. de-
signating the lines, &c. containing, &c.] with the hereditaments
and appurtenances thereunto belonging, or in anywise apper-
taining: To have, hold and enjoy the same unto the said A B,
his heirs and assigns, forever, in severalty, as his full part and
share of, in and to all and singular the premises, and the said C
D, for himself and his heirs, do by these presents remise, re-
lease, and forever quit claim unto the said A B, his heirs and as-
signs, forever, the said described piece, parcel and allotment of
land, with the appurtenances, to have and to hold to the said A
B, his heirs and assigns, forever: And that the said C D and
his heirs shall have all that piece or allotment of land (the res-
idue of said tract) beginning, &c. containing, &c. with the he-
reditaments and appurtenances thereunto belonging, or in any-
wise appertaining: To have, hold and enjoy the same unto the
said C D, his heirs and assigns, forever, in severalty, as his full
part and share of, in and to all and singular the premises: and
the said A B, for himself, his heirs and assigns, doth by these
presents remise, release, and forever quit claim unto the said C
D, his heirs and assigns, the said described piece, parcel and
ARTICLES OF CO-PARTNERSHIP.
505
allotment of land, with the appurtenances: To have and to hold
to him, the said C D, his heirs and assigns, forever, in severalty.
In witness whereof, the parties hereunto set their hands and seals,
the date above written. [Here both sign and seal.]
Form of articles of co-partnership between two.
Articles of Agreement, made and executed by and between
A B and C D, both of the county of and State of Ten-
nessee, this day of in the year of our Lord one thou-
sand eight hundred and thirty-three: Witnesseth, that the said
A B and C D have agreed, in the first place, and by these pre-
sents do agree, to become co-parthers in the business, trade and
employment of retail merchants, in buying, receiving, selling,
and vending by retail, every species of merchandize, in the town
of in the county and State aforesaid, for the term of five
years from this date, fully do be complete and ended; and, to
that end and purpose, he, the said A B, hath, the day of the date
of these presents, delivered in as stock the sum of four thousand
dollars, and the said C D the sum of three thousand dollars, to
be used, laid out and employed in- common between them, for
the management and advancement of the said trade, employment
and business of retail merchants, to their utmost benefit and ad-
vantage: And it is hereby agreed between said parties, and the
said co-partners, each for himself respectively, and for his own
particular part, and for his executors and administrators, doth
covenant, promise lind agree, each with the other, of them, his
executors and administrators, by these presents, in manner and
form following, that is to say, that said sums of money put in as
stock shall be laid out in dry goods, hardware and cutlery in
the cities of Baltimore and Philadelphia, and groceries in New
Orleans; and the said dry goods, hardware, cutlery and groce-
ries are to be .brought to, the town aforesaid^ and there expose
them, in a merchantable manner, at regular hnd certain prices,
in ready money, or upon credit, payable each Christmas day, in
a store house prepared for that purpose, at in said town.
It is further covenanted by and between the parties, that the
said C D is to superintend in person the buying, laying in, re-
ceiving, marking, pricing, and selling and retailing the said
goods and groceries, and that his personal service is to make his
capital equal to the capital put into stock by th§ said A B; And
506
MISCELLANEOUS DIVISION.
it is further agreed, bj and between the said parties, that they
are to he at equal expenses of every kind and description, in and
about the carrying on said business, and to bear equalises, if
any shall occur: And it is further agreed, by and between the.
parties aforesaid, that the capital hereby put into stock, is not
to be withdrawn by either or both of the parties for the term of
the said partnership: and it is further agreed, by and between
the parties aforesaid, that all the profits arising upon said capi-
tal stock shall be added to the principal, and so employed until
the end of the said term; and that at the expiration thereof, the
parties hereto are to withdraw their respective capitals, as bv
them now, or at any subsequent time put into common stock,
and then equally to divide the profits between them. It is fur-
ther understood and agreed by and between the said parties,
that the firm and partnership are not to create any debts with-
out the consent of both parties. And it is further agreed, by
and between the said parties, that there shall be had, and kept,
from time to time, and at all times during said term of said joint
business and co-partneship together, as aforesaid, perfect, just
and true books of all accounts and dealings, wherein C D 'shall
duly enter and set down, as well all money by him received,
paid, expended and laid out in and about the management of
said business, as also goods and groceries, commodities and mer-
chandize, by him, the said C D, bought and sold, by reason and
means, or upon account of the said firm and copartnership, and
all other matters and things whatever to the said joint business,
and the management thereof, in anywise thereunto belonging or
appertaining; and the said A B is at all times to have unrestric-
ted access to the books aforesaid. And, finally, it is agreed be-
tween them, at the expiration of said term, or at the death of
either of the partie|, a true, full and perfect settlement of all the
concern is to be made, and the stock and profits, if any, .to be
divided between them, their executors or administrators, after
paying and satisfying all debts and losses. In witness," &c.—
[To be signed and sealed by both.]
Articles for the sale of land.
"Articles of Agreement,indented, made, concluded and agreed
upon, the tenth day of September, in the year of our Lord one
thousand eight hundred and twenty-eight, between Andrew Ro-
ARTICLES FOR THE SALE OF LAND.
507
binson, of of the one part, and Charles Davidson, of
of the other part, as follows, io wit:
"The said Andrew Robinson, for the consideration hereinafter
mentioned, doth, for himself, his heirs and assigns, by these pre-
sents, covenant, promise, grant and agree to and with the said
Charles Davidson, his heirs and assigns, that he, the said Andrew
Robinson, shall and will, on or before the first day of May next
ensuing the date hereof, at the proper costs and charges of the
said Andrew, his heirs and assigns, by such deed or deeds-of con-
veyance as he or they, or his or their counsel shall advise, well
and sufficiently grant, convey and assure unto the said Charles,
his heirs and assigns, in fee simple, clear of all incumbrance, all
that," &c.
"In consideration whereof, the said. Charles Davidson, for hirm
self, his heirs, executors and administrators, doth covenant, prom-
ise and agree to and with the said Andrew Robinson, his heirs
and assigns, by these presents, that lie, the said Charles, his heirs,
executors and administrators, or some of them, shall and will
well and truly pay, or cause to be paid, unto the said Andrew,
his heirs, executors, administrators or assigns, the sum of fifteen
hundred dollars, in the manner following, to wit: five hundred
dollars, part thereof, on delivery of the deed for the premises;
dollars more thereof on the first .day of May, which will
be in the year of our Lord one thousand eight hundred and
twenty-nine.
"And for the true performance of all and every'the covenants
and agreements aforesaid, each of the said partfes^biTideth him-
self, his heirs, executors and administrators, unto the other, his
executors, administrators and assigns, in the penal sum of
firmly by these presents. In witness whereof, the said parties
to these presents have hereunto interchangeably set their hands
and seals, the day and year before written." [Here sign and
seal.]
N. B. It is best to sign duplicates, and each party take one.
Form of a bond to convey land in fee.
"Know all men by these presents, that A B, of the county
of and State of Tennessee, is held and firmly bound un-
to C D, his heirs, executors and administrators, in the penal sum
of two thousand dollars, for which payment, well and truly to be
508
miscellaneous division.
made and done, the said A B hereby hinds himself, his heirs,
executors and administrators firmly by these presents," &c.
"The condition of the above obligation is such, that whereas
the said C D has purchased a certain tract or parcel of land,
situate, lying, &c. [here describe the boundaries of the land]^-
with all and singular the hereditaments and appurtenances
thereunto belonging, or in anywise appertaining, from the said
C D, at and for the sum, or consideration of the sum of twelve
hundred and fifty dollars, one half of which has been well andtru-
ly in hand paid to the said A B by the said C D,and the other half
secured by the hill single of the said C D, payable to the said A B
twelve months after date. Now, if trie said A B shall make, or
cause to be made, a good and sufficient title, in fee simple, with
general warranty, within six months from this date, to the said
C D, his heiisand assigns, of, in and to the said tract of land and
appurtenances thereunto belonging, at the proper expense of the
said A B; then this obligation to be void, otherwise to remain in
full force and effect in law. Given under the hand and seal of
the said A B, this day of 1833. A B. (l.s.)
Form of a lease of lands.
"This indenture, made and entered into this tenth day of May,
in the year of our Lord one thousand eight hundred and thirty-
three, between A. B, of of the one part, and C D, of
of the other part: Witnessetli, that the said A B, for and
in consideration of the yearly rent, and the covenants hereinaf-
ter mentioned and reserved on part and behalf of the said C D,
his executors, administrators and assigns, to be paid, kept and
performed, hath demised, set to and to farm let, and by these
presents doth demise, set, and to farm let, unto the said C D, his
executors, administrators and assigns, a certain piece and par-
eel of ground, with the hereditaments and appurtenances there-
unto belonging, situate, lying and being in the county of
adjoining the lands of beginning, &c. [here describe the
boundary]—To have and to hold the said piece or parcel of
ground, with the appurtenances, unto the said C D, his execu-
tors, administrators and assigns, from the first day of January
last past, for and during the term of five years thence next ensuing,
and fully to be complete and ended, yielding and paying for the
same to the said A B, his executors, administrators and assigns,
BILLS OF SALE.
509
the yearly rent of one hundred dollars, to be due and payable on
twenty-fifth December in each year; and the said C D, for him-
self, his heirs, executors and administrators, doth covenant, prom-
ise and agree to and with the said A B, his heirs, executors and
assigns, by these presents, that he, the said C D, his heirs, exec-
utors, administrators and assigns, or some of them, shall and will
well and truly pay, or cause to be paid, unto the said A B, the
said sum of one hundred dollars, yearly rent, hereby reserved,
at the periods before appointed for the payment thereof; and
the said A B, for himself, his heirs, executors, administrators and
assigns, does covenant, promise and agree to and with the said
C D, his executors, administrators and assigns, by these presents,
that he, the said C D, his executors, administrators and assigns,
(paying rent and performing the covenants aforesaid) shall and
lawfully may peaceably and quietly have, hold, use, occupy, pos-
sess and enjoy the said demised premises, with the appurtenan-
ces, during the term aforesaid, without the lawful let, suit, trou-
ble, eviction, molestation or interruption of the said A B, his
heirs or assigns, or any other person whatsoever. In witness
whereof, the said parties," &c. [Then sign and seal.]
Form af a bill of sale of slaves, with general warranty as to the title
and health.
"For and in consideration of the sum of five hundred dol-
lars, lawful money, in hand paid by C D to A B, the receipt
whereof is hereby acknowledged, the said A B hath by these
presents bargained,"sold, transferred, conveyed and delivered to
the said C D, his heirs, executors, administrators and assigns, a
certain negro man, of a black color, a slave for life, by the name
of Peter, and not exceeding twenty-one years of age, and who is
sound, healthy and sensible: To have and to hold the said negro
man Peter, to the said C D, his heirs, executors, administrators
and assigns forever, from the said A B, his heirs, executors and
administrators, and all and every other person. The title, age,
health and sense of the said negro man Peter, the said A B will
warrant and forever defend. In witness whereof, the said A B,
hath hereunto set his hand and seal, this day of July, A.
D. 1833. A B. [L.S.]
510
miscellaneous division.
Form, of a bill of sale for a stallion, with warranty as to his health
and blood.
"For and in consideration of the sum of two thousand five
hundred dollars, lawful money, to A B in hand paid by C D,
the receipt whereof is hereby acknowledged, the said A B bath
by these presents bargained, sold, transferred, conveyed and de-
livered unto the said CD,a certain chestnut colored stallion by
the name of Superior, six years old on the tenth of April last
past. The said horse Superior, was sired by the celebrated horse
old Sir Archie, and his dam, Singleton's Lottery, by the import,
ed Bedford, &c. The said horse Superior being in fine health
and vigor. To have and to hold the said horse Superior, to the
said C D, his executors, administrators and assigns, forever, from
the said A B, his executors, administrators and assigns, and from
all and every other person whatever. The title, age, blood and
health of said horse Superior, the said A B will warrant and
forever defend. In witness whereof, the said A B hath hereunto
set his hand and seal, this 9th day of July, A. D. 1833.
A B. [l.s.]»
Note.—Bills of sale of slaves must be acknowledged by the
vendor in open court, or before the clerk of the circuit or coun-
ty court, or the execution thereof proved by at least two wit-
nesses, before one or the other of these forums. See act 1807,
ch. 85, sec. 3.
Form of a power of attorney to sell land or other Xal estate.
"To all who shall see these presents—Greeting:
Know ye, that for divers good causes and considerations, I, A
B, of county, and State of Tennessee, have nominated,
made, constituted and appointed, and by these presents do nom-
inate, make, constitute and appoint, and place in my room and
stead, my worthy friend C D, of my true and lawful at-
torney, for me, and in my name, place, room and stead, to bar-
gain, sell, grant and convey, with or without general warranty,
all that tract orparcel of land, situate, lying, &c. [here describe
the premises]—in one or more tracts, as shall best suit purcha-
sers and produce the highest price; with the hereditaments and
appurtenances thereunto belonging, and all the estate, right, ti-
tie and interest therein, unto such person or persons, and for such
price or prices as lie shall think proper; and also for me, and in
powers of attorney.
my name, room and stead, and as my proper and effectual act and
deed, to make, sign, seal and deliver all such deed or deeds of
conveyance as shall be necessary for the conveying and grant-
ing the premises according to the terms of the agreement of sale
and purchase. Giving and granting to my said attorney, by
these presents, my full and whole power, strength and authority
in and about the premises, in as full and ample a manner as 1
myself possess them; hereby ratifying, holding and allowing as
firm and effectual all and whatsoever my said attorney shall law-
fully do in and about the premises. In witness whereof, I have
hereunto set my hand and seal, this first day of July, 1833.
A B. [n.s.]"
Note.—If it is intended to invest the attorney in fact with the
power of appointing a sub-attorney or attorneys, after the words
"possess them," say: "hereby authorizing and empowering my
said attorney to constitute one or more attorney or attornies,
under him to do all and every thing in and about the premises
that he, my said attorney, is authorized to do by these presents in
and about the premises."
Form of a short power of attorney to acknowledge a deed of conveyance.
"Know all men by these presents, that I, A B, of do by
these presents nominate, constitute and appoint E F, G II and I
J, my true and lawful attornies, for me, and in my name, room
and stead? to appear before or any one of them, and to
acknowledge the proper execution of a deed of conveyance
which I signed, sealed and delivered to C D, of for five
hundred acres of land, situate, lying and being in, &c. [here de-
scribe the locality of the land] in as full and effectual a manner
as though I were personally present. Witness my hand and
seal, this second day of June, 1833. A B. [l.s.]"
Form of a power of attorney to collect debts "and give receipts, fyc.
"Know all men by these presents, that I, A B, of the county of
and State of Tennessee, have, for divers good causes
and considerations me hereunto moving, nominated, made, con-
stituted and appointed, and by these presents do nominate, make,
constitute and appoint C D, of the county of and State afore-
said, my true, effectual and lawful attorney in fact, for me, and in«
my name, place, room and stead, to ask for, demand, receive
and receipt for all moneys due me by note, bill, bond, assign-
512
miscellaneous division.
mcnt, endorsement, or book account, by E, F, G, H and I, in the
county of Burke, and State of North Carolina, or any one or
more of them; and upon any one or more, or all of my said debtors
refusing to pay my said attorney, upon demand, the moneys due
by any ol the ways herein mentioned, then and in that case
my said attorney is hereby authorized, empowered and directed
to institute and carry on any suit in law or equity necessary for
the recovery of my moneys aforesaid, and to do all and every
thing necessary to be done for the proper obtaining of judgments
and final recovery of said money, or any part thereof; and to give
releases and acquittances, receipts and discharges, or any other
matter or thing necessary in and about the premises; hereby
ratifying, making effectual and confirming whatever my said at-
torney may lawfully do in and about the premises, in as full and
ample a manner as if I myself were personally present. In wit-
ness whereof, the said A B hath hereunto set his hand and seal,
this seventh day of July, 1833. A B. [l.s.]"
Note.—These forms will enable any one who can write any
thing, to form a power of attorney for any object.
Form of a warrant of attorney to confess a judgment.
"Know all men by these presents, that I, A B, of the county
of and State of Tennessee, do hereby nominate, constitute,
make and appoint C D, Esquire, attorney at law, of my
lawful attorney, for me, and in my name, to go before the court
of pleas and quarter sessions for the county of in said State,
at the next term thereof, and then and there, upon E F pre-
senting him with my bill single, dated the 25th day of Decern-
ber last, for the sum of one thousand dollars, due the first day of
March last, made payable to the said E F, or order, to confess
a judgment in favor of the said E F for the sum aforesaid,
with all lawful costs accruing thereon; hereby ratifying and con-
firming whatever my said attorney may lawfully do in the pre-
mises. In witness whereof, I have hereunto put my hand and
seal, this 16th June, 1833. A B. [l.s.]
Note.—A warrant of attorney to dismiss a suit is in form
very nearly like the last form. I will give hereafter another
form of a warrant of attorney, created at the time the bond is
made, upon which a judgment is to be confessed.
INDENTURE OF APPRENTICE.
513
Form of un indenture of apprenticeship, where a father places his son
to learn a trade.
"This indenture witnesseth, that A B, of hath put
and placed, and by these presents doth put, place and bind his
son Charles Bond, and the said Charles Bond doth hereby put,
place and bind himself as an apprentice to C D, to learn the
art, mystery and trade of tanning and currying leather; the said
Charles Bond, after the manner of an apprentice, to dwell with
and serve the said C D from the day and date hereof until the
day of which will be in the year of our Lord one
thousand eight hundred and at which time the said ap-
prentice, if he should so long live, will be twenty-one years of
age; during which term or time the said apprentice shall truly
and faithfully serve his said master, keep his secrets, and every
where and at all times readily obey his lawful commands; he
shall do no damage to his said master, nor wilfully suffer any to
to be done by others, and if any to his knowledge be intended,
he shall give his master seasonable notice thereof; he shall not
waste the goods of his said master, nor lend them unlawfully to
any; he shall not play at cards, dice, or any other unlawful
game; he shall not contract matrimony during the said term; he
shall not haunt and frequent taverns, tipling houses, or places of
gaming or houses of ill-fame; he shall not absent himself from
the service of his said master, but in all things, and at all times,
he shall carry and behave himself as a good and faithful ap-
prentice ought, during the whole time or term aforesaid.
"And the said C D, on his part, doth hereby covenant, prom-
ise and agree to teach and properly instruct the said apprentice,
or cause him to be instructed, to read and write, and cypher as
far as the rule of three, if the said apprentice be capable to
learn; and shall well and faithfully provide for the said appren-
tice good and sufficient meat, drink, clothing, lodging, and other
necessaries, fit and convenient for such an apprentice, during
the term aforesaid; and at the expiration thereof, shall give un-
to the said apprentice two suits of wearing apparel, one a fine
and decent suit, suitable for decent company, and the other for
every-day apparel; and well and truly to teach the said appren-
tice the art, mystery and trade of a tanner and currier, or cause
him to be so taught, as far as his capacity and the term of his
3 P
514
miscellaneous division.
service will justify; and to attend to and guard tiie morals of the
said apprentice, as the said C D would or ought to guard those
of his own children. In testimony whereof, the said parties
have hereunto interchangeably set their hands and seals, this
l§th day of July, 1833." [Here all three must sign and seal.]
Form of a penal bond for money.
"Know all men by these presents, that I, A B, of am
held and firmly bound unto C D, of the same place, in the sum
of one thousand dollars, good and lawful money of the United
States, to be paid to the said C D, his executors, administrators
and assigns; to which payment, well and truly to be made, I
bind myself, my heirs, executors and administrators, and every
of them, firmly by these presents. Given under my hand and
seal, this 13th day of July, 1833.
''The condition of the above obligation is such, that if the
above bound A B, his heirs, executors or administrators, shall
well and truly pay, or cause to be paid to the said C D, his ex-
ecutors, administrators and assigns, the full sum of five hundred
dollars, lawful money, as aforesaid, with lawful interest for the
same, on or before the 25th day of December next, then this obli-
gation to be void, otherwise to be and remain in full force and
virtue. Given under the hand and seal of the said A B, the
date first above written. A B. [l.s.]"
Note.—Where a judgment is to be given upon a failure of
payment, a short power of attorney may be added, of the form
following, to confess a judgment upoiuthe bond:
"And, further, I do hereby empower any attorney of the court
of pleas and quarter sessions for the county of and who
reside at to appear for me, either with or without decla-
ration filed for the above penalty, thereupon to confess a judg-
ment, as of the next term immediately following the date, when
said bond shall fall due, or at any term before that period, with
stay of execution, until said bond shall fall due, and day of pay-
ment therein shall arrive. Given under my hand and seal, the
date above written. A B. [l.s.]"
Form of a bond to refund a legacy which had been paid by an ex-
ecutor.
"Know all men by these presents, that whereas A B, by his
last will and testament, bearing date the day of
NOTES bills OP EXCHANGE.
515
18 and which has been regularly proved and recorded, &c.
did, by said will and testatment. give and bequeath unto one C
I), the son of the said A 3?, deceased, a certain legacy of two
thousand dollars, as by the wdl and testament will more fully
appear: Now, the condition of this obligation is such, that if at
any time after the payment of the above mentioned legacy,
any part, or the whole of said legacy shall be necessarily want-
ing to discharge any debt or debts, legacy or legacies, which IJ
and L M, executors to said last will and testament, shall have
no other assets to pay, then and in that case the said C D, his
heirs, executors or administrator®, shall return the said legacy,
or such part thereof as shall appear to be necessary for the pay-
ment of said debts or legacies, or a proportionable part of said
legacy: For the true performance of the above, the said C D binds
himself, his heirs, executors or administrators, to the said I J and
L M, and their heirs, executors and administrators, in the penal
sum of four thousand dollars. Given under the hand and seal
of the said C D, this fifth day of July, 1833. C D. (l.s.)
Form of a bond payable in specific articles.
Six months after date, I promise to pay C D, or his assigns,
the sum of three hundred dollars, which may be paid in good
horses under eight and over two years old, to be delivered at
without defalcation. Given under my hand and seal,
this day of A. D. 18 A B. (l.s.)
Form of such bond or note, without mentioning the place of payment.
"Six months after date, I promise to pay C D, or his assigns,
the sum of five hundred dollars, which may be discharged in
good horses, not less than three nor more than eight years old.
Witness my hand and seal, this day of A. D. 18
A B. [l.s.]"
Form of a bill single of exchange usual among commercial men.
"Nashville, T. July 16, 1833.
Exchange for $500
Sixty days after date, of this, my only bill of exchange, please
to pay C D, or order, five hundred dollars, for value received,
without further advice, which charge to the account of
JONATHAN STARK.
Messrs. Stockton & Stokes."
516
miscellaneous division.
Form of a set of bills of exchange.
"No. 10. Nashville, T. July 16, 1833.
Exchange for §'1000.
Sixty days after sight, of this, my first of exchange, (my se-
cond and third of the same tenor and date unpaid,) pay to Mr.
H. R. W & Co. or order, one thousand dollars, for value recei-
ved, and charge the same, without further advice, to
NATHAN NEAL.
Messrs. N. & J. D & Co. New Orleans.''
"No. 10. Nashville,T. July 16,1833.
Exchange for $1000.
Sixty days after sight, of this, my second of exchange, (first and
third of same tenor and date unpaid,) pay to Messrs. II. R. W
& Co. or order, one thousand dollars, for value received, and
charge the same, without further advice, to
NATHAN NEAL.
Messrs. N. &. J. D & Co. New Orleans."
"No. 10. Nashville, T. July 16, 1833.
Exchange for $1000.
Sixty days after sight, of this, my third of exchange, (first and
second of same tenor and date unpaid,) pay to Messrs. II. R. W
& Co. or order, one thousand dollars, for value received, and
charge the same, without further advice, to
NATHAN NEAL.
Messrs. N. & J. D & Co. New Orleans."
Note.—Two or three, or more, may draw a bill of exchange,
who are- not partners; hut in such case the bill ought to be signed
by all of them as drawers individually. But when a bill is drawn
by partners in trade, it must be signed with the name of the firm
or partnership.
Form of a duplicate of bills of exchange of the most approved form in
this State, drawn by three.
"No. 11. Nashville, T. July 16,1833.
Exchange for $1000.
Four months after date, of this, our first of exchange, (second
of the same tenor and date unpaid,) pay to Messrs. D & W, or
order, the sum of one thousand dollars, for value received, and
charge the same, without further advice, to A B.
Messrs. N. & J. D & Co. C D.
New Orleans. E F."
ottdrius receipts. &c.
517
"No. 11- Nashville, T. July 10,1833.
Exchange for ,§1000.
Four months after dale, of this, our second of exchange, (first
of same tenor and date unpaid,) pay to Messrs. D & W, or or-
der, the sum of one thousand dollars, for value received, and
charge the same, without further advice, to A 15.
Messers N. & J. D & Co. C D.
New Orleans. E F."
Form of an order for money.
"Murfreesborough, 16ih July, 1833.
Mr. John Smith: Sir—Please to pay to C 1), or order, the sum
of fifty dollars, out of the money ?you are owing me, and this
shall he a discharge for so much, and oblige yours, &c.
PETER SMITH."
Jin order for specific articles.
"Franklin, 16th July, 1833.
Messrs. II & W: Gentlemen—Will you please to deliver to
C D, or bearer, two thousand pounds of bar iron, assorted, and
place the same to the account of yours, R N."
Form of a receipt for money upon an open book account.
"Murfreesborough, 16th July, 1833.
Then received of C D, five dollars and fifty cents, in full of
his account with me, for blacksmith's work, up to this date.
A B."
Form of an acquittance from a lost note, under seal, or bill single.
"Knoxville, T. 16th July, 1833.
Then received of C D, seventy-five dollars, in full of a note
under seal, this day due, for the sum aforesaid, executed by the
said C D to me the 13th day of March last, and which note is
so lost or mislaid that I cannot put my hand upon it, and this is
a full discharge and acquittance of said note. Given under my
hand and seal, the date above written. A B. [l.s.]
Note.—The note being under seal, the acquittance must be
so likewise; because the acquittal must be of equal validity with
the note to dissolve it. If the note was without seal, then the
acquittance may be so also.
518
4UP>0rLLA SR^rS DIVISION.
Form of an arbitration bond la submit matters in dispute to arbi-
tration.
"Know all men by tbese presents, that A B is held and firmly
bound unto C D, his executors, administrators or assigns, in the
penal sum of two thousand dollars, which payment, well and
truly to be made, the said A B binds himself, his heirs, executors
and administrators, firmly by these presents, &c.
"The condition of this obligation is such, that if the above
bouhden A B, his heirs, executors and administrators, for his and
their parts and behalf, shall and will well and truly stand to,
and abide by, obey and keep the award, order, arbitrament, final
end and determination of C D, E F and G H, or any two of
them, arbitrators indifferently chosen, as well on the part of A
B as of C D, to arbitrate, adjudge, decree and award of and
concerning [here state the matter of dispute referred] and all
other matters, actions, disputes, and cause or causes of action,
whether by bill, note, order in writing, open account, trespass,
case, bill, plaint, or otherwise, at any time or times heretofore
had, made, or brought about, sued, commenced, prosecuted, done,
suffered, committed or depending, and finally, every species of
legal dispute between the said parties from the beginning of the
world up to this date, so that the said award be made in wri-
ting, under the hands and seals of the said arbitrators, or any
two of them, and ready to be delivered to the said parties in dif-
ference on or before the first day of June next: Then the above
obligation to be void, otherwise to remain in full force and virtue
in law. Given under my hand and seal, this lGth July, 1833.
A B. [l.S.]"
Both of the parties must sign, seal and deliver such a bond to
the other party.
Form of an award.
"Whereas, [here insert the same recital as in the bonds of re-
ference] the said differences have been referred by the said A B
and C D to the consideration of the undersigned, indifferent
persons, chosen between the said parties, to determine the same,
at the special instance and request of both the said parties, at
in the county of both parties being present, and
their respective proof being heard, as well written as parol, and
the matters in dispute between them being fully considered an
LAST WILL \>;n TESTA 31 EMT.
519
well understood, we do hereby award, order, adjudge and de-
cree, that the said A B pay to the said C D [here insert the mat-
ters awarded as the findings shall be, and "each party shall pay
their own costs," or that "the cost he equally divided between
them," or that "A B pay all cost," or that "C D pay all the cost
that has accrued in this cause," as the case may he.] In witness
whereof, the said arbitrators have hereunto set their hands and
seals, this 16th day of July, 1833." [To he signed and sealed
by the arbitrators.]
Form of the commencement and conclusion of a will and testament.
"I, A B, of the county of State of Tennessee, planter,
do make and publish this, my last will and testament, hereby
revoking and making void all former wills by me at any time
heretofore made: And, first, I direct that my body be decently
interred at in said county, in a manner suitable to my con-
ditionin life: And, as to such wordly estate as it hath pleased
God to entrust me with, I dispose of the same as follows: Firs'.
I direct that all my debts and funeral expenses be paid as soon
after my decease as possible, out of any moneys that I may die
possessed of, or may first come into the hands of my executors
from any portion of my estate, real or personal. Secondly. I
give and bequeath [here insert each bequest, to the end thereof.]
I do hereby make, ordain and ap joint my esteemed neighbor
and friend, G H, Esquire, and my beloved son, William, execu-
tors of this my last will and testament. In witness whereof, I,
A B, the said testator, have to this, my will, written on one sheet
of paper, set my hand and seal, this first day of July, in the
year of our Lord one thousand eight hundred and thirty-three.
A B. [L.S.]
Here the witnesses all sign, to the number of two at least. If
the will has been written on more than one sheet, the conclusion
of the will must state it, and how they are connected together,
whether by signing the testator's name across the joining of the
sheets, or by any other means whatever. If the will ^ devising
real estate, there ought to be three subscribing witnesses,
INDEX.
Abatement, its nature and kind, 113
first, second and third spe-
cies, 113, 115
fourth, fifth & sixth do.,116
Action of debt, 22
of trover, the nature of, 99
of deiiiiue, the nature of, 107
upon the case, 108
penal, 399
may be brought on a bill of ex-
change, 62
against innkeepers, 117
Accessaries, crime and definition, 281
before the fact, 281 '
after the fact, 281
good character bailable, 282
Abscond, the meaning of, 433
Account to be sent with tiie warrant, 27
Acceptor of a bill of exchange, 60
Acceptance, no precise form, 60
by one partner good, 60
for the honor of the draw-
er, 61
Acquittance for a lost note, or bill sin-
gle, 517
Actual possession, what, 94
Advertisement of land, how made, 476
Affidavit in forcible entry to continue, 7
for continuance, form of, 146
to procure deposition, 147
to obtain attachment, 445
Affrays, definition and nature of, 294-5 j
Agreement, what, 26
in writing form of warrant, 26
Administrator, who he is, 76
his duty, 76
when liable out of his
own estate, 76
judgment by default, the
effect of, 76
of an assignee vs. the
drawer, warrant for, 68
3 O
Appeals, how to be prayed, 145
the manner of praying, 38
none allowed in forcible en-
tries, &c. 20
Appearance, in forcible entry, 6, 7
Apprentice, indenture of, by father, 513
Arbitration bond, 518
form of award, 518
Arson, or house burning, defiqed,170
warrant for, 170 *
barns, stables, &c. 172
Arrest, what, 111
Articles copartnership between two,505
for sale of land,^506
^ssault, what, 253
with intent to kill, 252
with intent to ravish, 255
with intent to rob, 257
Assaults and batteries, what, 90, 298-9
justified in, 299
Assignee vs. the maker,warrant the form
of, on a bond, 31
Attorney, warrant of, 29-512
powers of, 510-11,514
Attachment, process of, 430
when to plead to issue, 440
form of, 441
conditional judgment, 414
to obtain on affidavit, 415
judgment on, without re-
plevy, 446
judgment on, when reple-
vied, 447
original form of„448
garnishment" upon, form
of, 448
may always# be served by
a constable, &c. 477
B
Bank bills, receiving or stealing of, 202.
Bail bond, the form of, 474
under a ca. sa. 474
INDEX.
bail, accessaries of good character baila-
ble, 282
Balance due o<i a bond or note, 24
Battery, definition of, 253
Barratry, what, 226
Bill of sale of slaves with general war-
ranty for title and health,
509
for a stallion, with a warran-
ty for blood & health, 510
how to be proved or acknow-
ledged, 510
Bastardy, the law governing the same,
391-2 3-4
Barrels, how to be made, 404-5
Bills of exchange, what, 55
the doctrine concern-
ing, 55
acceptor, who he is,
60
partial acceptance, 61
alteration of, 63
form of, used by mer-.
chants, 515
a set of, 516
duplicate of, 516-17
Bills penal, what, 24
Bill single is a note, or promise in
writing under seal, 25
Bill of fees in forcible entry, &c. 21.
Bigamy and polygamy, definition of and
requisites, 178
warrant for, 179
Billiard tables, crime of and definition,
375
Bearing a challenge, 269-70
Book account, what, 37
manner of proving, 37
proof necessary, 43
Book debt, oath only extends to goods
&c. 37, 46-7.
Bonds for forcible entry, &c. 3
the form of, 4
form of a warrant on balance, 28
negotiable, 30
for an appeal, 39
on attachment, 441
to replevy goods attached, 447
with penalty for money, 514
to refund legacy, 514
for specific articles, 515
for specific articles, without place
of payment, 515
to'convey land in fee, 507
Bond and security must be given in an
appeal, 145
Breaking jail, 322
Bribery, crime and definition, 230
Buggery, crime of, 180
Burglary, crime of and definition, 186-7
in the day time, 203
Uy-standers to be summoned, 15
c
Caption for taking a deposition, 488
Carrier, action against, 114
when liable for losses, 114-15
Carrying unlawful arms, crime and defi-
nition, 306
Case, actions of, valid for $20 and under
before justices, 86-8
an action of, for what it lies,
108
against whonj an action lies, 109-
13
general nature of action, 109
for what it lies, 109-13
Certificate of justice to a record in forci-
ble entry, &c. 20
of commissioner to take de-
positions, 149
Challenges, defendant entitled to in
murder,|292
of jurors, in forcibly entry, 7
Champerty, what, 331
Certiorari and supercedeas in forcible
entries, &c. 20
Client against his attorney, warrant for,
123
Clerks to account, arid how,'386
Common law repealed which gave the
right of re-possession, 2
Complaint in forcible entry, the form
of, 3
must be recorded, 4
for forcible and unlawful de>»
tainer, 13
for an unlawful detainer, 14
Common nuisances, what, 345
Commissions to constables and sheriffs
on justice's judgments,
when collected, 472
none allowed upon execu-
tions unless collected,
473
Commission to lake deposition, the form
of, 148
Commissioner's certificate to a deposi-
tion, 487-83
duty in taking deposi-
tions) 189
Commissioner to lead the deposition to
witness carefully, 489
who can be one to take
depositions, 487
Concealment how to be charged, 291
Compensation not to be awarded in for-
cible entry, 14
Constables in this State are invested
with the powers of an
English, 473
may levy an attachment in
certain cases, 477
to give notice of unlicensed
taverns and lipling hous-
es, 477
WDLX.
523
Constables forbid to bid at their own
sales, 478
how to advertise property le-
vied on, 478
Coroners, their duties; 480-1
precept to summon a jury for
an inquest, 481
Continuance of a trial of forcible entrj',
when allowed, 7
on what terms allowed, 7,
145-6
not to be allowed for long-
er time than 15 days, 7
only to be allowed a second
lime on costs, 7
Consideration in a note, what, 25
Copy from the books, in a book debt
case, good without notice, 46
Covenants include notes for specific ar-
tides, 49
Constructive possession, what, 94
Conversion where goods have been ta-
ken wrongfully—no con-
version necessary, 102
Consignee and consignor may maintain
action against carrier, 115
Constitution, amendment of, with re-
speet to judiciary, 143-4
Counterfeit bank bills, crime of, 205
coin, 217
Conspiracy, crime of, 287
crime of and definition, 339
Corporations, how alleged in an indiet-
merit, 292
Contracts void under the statute of
frauds, 492
Cooper's barrels, how made, 404
County claims, buying of, 338
trustees to make report to coun-
ty court, 390
Crime, definition of' 154, 294
and misdemeanors 294
Criminals, examination of, the form of,
160
examination of witnesses for
and against, 160
Corrupting springs, wells, &c. prohibit-
ed, 383
D
Deeds, special warranty,494
bargain and sale, 493
of conveyancing, definition of,
. 492
of quit claim, 494
of gift, 494
of release, form and pre-requi-
sites of, 495
of release for demand, &c. 496
of personals, the form of, 497
by sheriff and collector, for land
sold for the tax, 497
sheriff's, the form of, 497
Deeds mortgage, to secure endorsers in
bank,501
mortgage to secure creditors, 502
partition, between tenants in
common, 504
Detainer cannot be forcible unless actu-
al force be used, 13
is an unlawful one, where held
over the time for which he
went into possession and de-
mand made, 14
Demand and notice of specific articles,
construction of, 51-2
Defendants, who to be made, in a suit
against partners, 82
who to be made, in a suit a-
gainst makers and endor-
sers of notes and bills, 73
Detinue, the nature of the action, 107
the form of a warrant in, 107
the form ol a judgment in, 107
the form of a judgment for de-
fendant, 108
Deceit in sales, for what it lies, and na*
tureof, 118-19
when a suit may be
broughtin,119
Deposition—affidavit, the form of, to get
a deposition, 147
form of an order to take a
deposition, 148
form of a commission to take
148
caption, the form of, 148
form of the justice's certifi-
cate to the foot of, 149
directions to the commis-
sioners in writing, 486
Decency and good morals, 397
Destroying will, crime & definition,238
Dealing with slaves without a permit
in writing, 387
Diligence, what degree necessary by an
assignee, 58
Disqualification, what crime shall dis*
qualify, 291
Disturbing of public worship, what con-
stitutes it, 312-15
deputation to take such, 317
Dower, laying off to widow, 461
commissioners in laying off must
include mansion house, 462
Drunkenness, penalty for, 428
Drawee vs. drawer of a bill of exchange
65
Due bill, what, 25
Duelling, crime and definition of, 264-5
E
Eaves-droppers, crime & definition,358
Elections, crime of treating at, 341
Embracery, crime & definition, 232,>333
524
INDEX.
Endorsement in blank, what it is, 57
in full, 57
restrictive, 57
cannot be made for less
than the whole, 57
meaning of, 57
Endorser,against whom he may insti-
tute suit, 73
the last against the maker and
all other endorsers, 74
Endorsee of a bill of exchange, who, 6G
of a bill single, against whom
to bring suit, 72-3
Execution against delinquent jurors, 19
against delinquent witnesses,
20
of an assignee against an ex-
ecutor, 71
of an assignee against an ad-
ministrator, 71
garnishment on,454
from another county, pro-
ceedings on, 456
form of, upon one from ano-
ther county, 456
of land, how advertised, 476
stay of, and form, 2d, 449
Executor, who he is, 75
duty of, 76
when liable out of his own
estate, 76
judgment by default against
the effects of, 76
of an assignee against the ad-
minisrre.tor oi an endorser
on a promissory note, 72
of an assignee against the
drawer oi a bill of exchange
warrant for, in trover, for
goods of a testator, 104
Extortion, crime of, and definition 336
Examination of a woman upon a charge
of bastardy, 395
of criminals, the form of,
159-60
of witnesses in criminal ca-
ses, 160
Escape, action of against sheriff or con-
stable, 111
Evidence necessary on a trial of assign-
ee against the maker, &c. 32
for^and against ministerial offi-
cers, upon trespass, trover,
&c. 97-8
before a coroner, 485
Exchange, bills of, 515-17
F
False imprisonment, what, 91
crime and definition, 367
False and pretended prophecies, what,
308
False tokens, crime and definition ,348-9
False brands on flour, 381
Faro, crime and definition of; 283
warrant for, 285
Feme sole, note or bill made after mar-
riage to the wife, the bus-
band may transfer, 83
Fee bill in forcible emry, &c. 21
Fees allowed to sheriff and constable,
478-9
Fines against non-attending witnesses,
15
against non-'attending jurors, 15
by-slander refusing to serve, 15
collected in forcible entries, &c. a-
gainst jurors, to be paid into
county treasury, 20
Fieri facias to issue against convict for
v cost, 293
return day of such, 293
cleik's duty in suck case,
293,
Fire hunting prohibited, 382
of freeman or slave, 412
Fire wood, how to be sold in town,400
Flour, how to be packed in barrels, 405
Forcible entry, what, 1-3
before whom cognizable,
3
form of complaint, 3
and detainer, 14
Forcible and unlawful detainer, 12-14.
Form, the beauty and truth of, the glory
of the law, 122
its great necessity in proceed-
ings, 142
attachments abated for want of
how, 442
Forgery, crime and definition of, 221-22
Frauds in sales, what, 120-21
by agent, the principal liable for,
122
and perjuries, what contracts
void under, 491
Free persons of color entertaining slaves
426
G
Gaming consideration, 33
action, how to be brought, 102
sheep won on a horse race, 105
when the action must be insti-
tuted to recover back money
or property, 106
unlawful, what, 283-4
Games of hazard or addiess, what, 362,
363
Garnishee summons, 440
the form of, 443
when to be issued by a slier-
iff or constable, 443
when he is served with pro-
cess and fails to attend
INDEX.
525
Garnishee, judgment against, 446 i
no judgment against, when
replevied by original diet.
453
the form of, upon an execu-
tion, 455
Garnishment on an execution in the
hands of an officer, 454
examination on the form
of, 448
proceedings on, where de-
fendant's property is in
his own hands, 452
sheriff's or constable's du-
ty on, 452
General subjects under our criminal
code, 289
Grandmother's triftk, crime of, 283
Guardians to be appointed to orphans,
414
H
Horse race, warrant to recover back pro-
perty won on, 105
Horse stealing, crime of, and definition
197
Horse or stud colt running at large, pen-
alty for, 418
standing season without being
listed for taxation, 418
House keepers not to permit idlers to
spry in their house,402
not to conceal or harbor
orphans, 414
Husband and wife, mode of proceeding
against, 82-3
mode of proceeding by, 83
form of warrant in trover,
104
Hunting by firelight in the night time,
412
Inquisition for muider, the form of; 482
against an accessary, the
firm of, 483
when one drowns himself,
483
when one dies in jail, 483
upon non compos mentis,434
upon killing in self defence,
484
Issue in forcible entry and detainer, 6
the form of in fotcible entry, 6-7
I
Idle and disorderly persons, 402
Imprisonment, what,91
Interest must be computed with the debt
in a question of jurisdiction,23
Infancy may be given in evidence to
avoid a note or bond, 33
a personal privilege, 34
Innkeepers, when liable for money or
property lost or injured, 117
Incest, crime of, and definition, 182-3
warrant for 184
defendant's recognizance, 184
Indenture of apprentice, 513
Indictments at common law, good under
the penal code, 291
for offences enumerated in
39th sec. crim. cede, 291
Inspectors of tobacco, proceedings a-
gainst, 403
Jail,breaking of, 320
Jailers shall not permit the wife of a
prisoner to live or board with
him, 401
their duties in certain cases, and
penalty for failure, 485
Exempt from attending musters,
485
Jury not to be sworn in forcible entry
without six day's previous notice
to defendant, 6
of inquest—form of the foreman's
oath, 482
form of the oath of the
rest of the jury, 482
Jurors, the proper number in forcible en-
try, 8
how to fill the pannell of, 8
Judgment in forcible entry, the form of, 9
upon the issue of 3 years, 10
against non-attending jurors,
the form of, 15
against jurors who attend but
refuse to serve, 16
against a witness who fails to
attend, 16
against a witness who refuses
to give evidence, 16
absolute upon sci. fa. made
known, 18
absolute upon insufficient
cause shown, 19
form of, upon a balance on
bond, 28, 39
form of for assignee vs maker
34
form of, for non*suit for want
of proof, 34
Form of, for defendant on a
gaming consideration, 35
Form of, for a defendant, on a
plea of infancy, 35
form offer plaintiff, on plea
of infancy, 35
for plaintiff, for overflowing
bis land by a mill dam, 123
should contain the grounds
upon which predicated, 36
for defendant, upon a set-off,
40
520
INDEX.
Judgment for specific articles, 49, 145
for defendant upon a note for
specific articles, no demand
&c. having been made, 50
for specific articles in favor of
plaintiff,on verbal contract,
54
form of, on a bill of exchange
for plaintiff, 63
in favor of the assignee a-
gainst the acceptor, 65
for plaintiff, by the endorsee
against the endorser, 66
for plaintiff, by assignee a*
gainst assignor, on a bill
single, &c. 67
for plaintiff, executor of an
assignee, against the draw,
er of a bill, 69
of non-suit, for want of proof
of demand and notice, by
an assignee vs. the draw,
er, 69
on the last form, for an exec-
utor or administrator, 69
for defendant, for want of vig"
ilance in plaintiff, 70
an assignee vs. the adminis-
trator of a drawer for plain-
tiff, 71
for plaintiff against maker and
first endorser, 74
by default, vs. executor or
administrator, the effects of,
76
for defendant, executor or ad-
ministrator of an endorser,
upon fully administered, 77
the name of such, 77
Quando acciderint ought al-
ways to be taken by ka
plaintiff, 77
for a defendant when the suit
ought to have been institu-
ted vs. partners, 82
in trespass, with force and
arms, for killing cows, 89
for plaintiff, in assaults and
batteries, 91
for a defendant, in assault and
battery on justification, 92
for a plaintiff, for false impris-
onrnent, 92
for defendant, where plaintiff
was taken by lawful pro-
cess, 92
for plaintiff in an action quare
clausum fregit, 95
for defendant in an action
quare clausum fregit, on not
guilty, 96
for plaintiff in trover for abed
and furniture, 103 ,
for plaintiff in trover, for hus- J
band and wife, for goods of
the wife while sole, 104
Judgment for plaintiffin trover, for an
executor, for goods of the
testator, 105
for plaintiff in trover to recov-
er- back sheep won on a
horse race, 106
for plaintiff in detinue,.the
form of, 107
for defendant in detinue, the
form of, 108
for plaintiff client vs. his at-
torney, 124
for plaintiff against a ferry
keeper, for neglect, 124
for plaintiff, by a guest vs. a
tavern keeper, 125
against a person for keeping a
foul ditch, &c. 126
against a person for bringing
an unruly horse, &c. 127
for plaintiff against a consta-
ble for an escape, 128
and the proof necessary, 128
for plaintiff against an inn-
keeper, for injury to horse,
133
for plaintiff against a carrier
for the loss of a barrel of
wine, 134
for plaintiff, pawner vs. paw-
nee, for an injury done to
cloth, 135
for plaintiff, for excessive use
of a hired horse 136
for plaintiff,Jfor an injury done
a loaned horse, 137
for plaintiff, for fraud in the
Sale of a horse, 137
for plaintiff, for fraud in the
swap of horses, &c. 138
for plaintiff, for breach of war-
ranty in the sale of a horse,
138
for plaintiff for breach of war
ranty, 139
for plaintiff, for selling a cow
to which defendant had no
right, 140
for plaintiff, for a cheat by a
merchant's clerk, 141
for taking too much toll, 411
on an attachment with a re.-
plevy, 447
on an attachment without a
replevy, 446
conditional, on attachments,
449
conditional against a garni-
shee,450
final, against a garnishee, 451
No conditional judgment a-
gainst garnishee, 451
INDEX.
527
Judgment upon a peace warrant of a
wife vs. her husband. 469
Justices two must try a forcible entry, 3
Justice granting process to issue subpoe-
nas in forcible entries, (fee. 14
must officially sign his process of
.every kind, 15
jurisdiction in action, &c. 22
when not t® issue warrants in
civil cases, 23
Justice of the peace, action against for
refusing to do his duty, 112
warrants against for neglect
of duty, 129-31
duty in examining criminals
brought before them, 159
duty in case of disturbing
public worship, 318
and constables prohibited from
certain acts, 384
When they remove to ano-
ther part of the county, to
attend at the old muster
ground,408
Jurisdiction over all sums, &c. 37
of a justice, in case of spe-
cific articles, 49
the doctrine discussed at
some length, 143
in property contracts, 145
Justification in assaults and batteries, 91
L
Land when levied on by execution, how
to be advertised, 476
lease of, 508
partition of to be made, 463
Larceny, grand and petit, 194-6
Laying off dower, how, 461.
Lent money, form of warrant, 47
Liquor sold to slaves, 357
Legacy, bond to refund, 518
Lottery tickets, selling, 366
Libels definition and nature, 309
M
Malice, what, 163
Malicious mischief, 372-3
Manslaughter, definition of, 164
warrant for, form of, 165
prosecutor' recognizance,
167
defendants's recognizance
166
mittimus for the defend-
ant, 168
distinguished from mur-
der, 166
Involuntary, 169
Maintenance, definition of, 329
two kinds, ruralis and cu■
rialis, 329
Mayhem, Wcunding, &c. crime and
definition, 259
Misdemeanor, the definition of, 154,294
Mittimus, form of in murder in the first
degree, 161
In incest, 185
for perjury, 227
for bribery, 234
for avoiding a oart of a record
247
for cutting off a man's hand,
263
in bastardy, for failing to give
security, 397
Millers shall grind according to turn,410
shall keep in their mills certain
measures, 410
liable for his servant and slave's
conduct, 411
Money had and received, laid out and
expended, lent and advanced, 48
Motions against sheriffs, constables, &c.
472
Murder, what, 154
first degree, 155-6
warrant, the form of for the
first degree, 157
second degree, what, and inter-
pretation of the statute, 163
N
Negro stealing, 192
Negotiable instrument, what it is, 56
Notes and bills, 30
Notice to tenant at will to quit, 12
demand of payment and notice
from each endorsee to his en-
dorser, 58-9
the form of to take depositions,
491
the length and manner of on exe-
cution sale, 473
in form of sci. fa. form of, 450
Notices of constable for keeping an ordi-
nary without a license, 350
Note for specific articles on covenants,
49
under seal, form of warrant, 26
to be sent with the warrant, 27
Nonsuits for and against partners, 81
Non est factum, 33
Nuisances, common, crime of and defi-
nition, 345
o
Oath—book debt only extends to goods,
wares, merchandize, &c. 38
to be taken by a jury in forcible
entry, 8
On the voir dire upon a book ac-
count, 44
in chief, upon a book account, 45-
5'28
IMHSX.
Oath of an executor ur administrator up-
on a Look account, 4G
the mode of swearing m court and
the origin, 457
the form of upon the gospels, and
with an uplifted band, 459
to jury of view, to view, mark and
lay out a pubiic road, 460
to military officers, 460
to jury in lay ing off dower, 462
to commissioners in partitioning
land,460
to obtain a peace warrant, 468
Obstruction of execution of lawful pro-
cess, what, 319
Observations respecting the form and
substance of warrants, &c. 141-2
Obscenity and lewdness, crime and de-
finition, 370
Officer's return on a warrant, 27, 38
Officer to receive money upon demands,
&c. 27
evidence for and against, in tro-
ver, trespass arid detinue, for
wrongfully taking property un-
der process, 97
duty of, in arresting criminals
under a state's warrant, 158
not to bid at sales, 378
Order for money, the nature and effect,
41
for money, form of, 517
the form of judgment upon, 42
form of, to take deposition, 148
for specific articles, 517
of sale, the form of, 453
Origin of society, 151-3
of crimes, 154
Original attachment, form of. 448
Orphans to be presented by grand jury,
414
Ordinaries, what, and the keeper's duty,
358-9
Other enormities, what, and when to be
used, 96
Overflowing by a mill dam, warrant for,
123
judgment for, 123
P
Partners, one may pledge the partner-
ship effects, 60
in suit by, what proof necessa-
ry,8f
in suits against, what proof ne-
cessary, 81
Penitentiary, all crimes punishable in,
to be tried by circuit court, 225
Penal actions, their nature, &• by whom
to be brought, 399
Penal botrd, 574
Peace, the preservation of by justices of
the peace and others, 463
Peace, who are the conservators of, 464
disturbance of, a nuisance, 467
sheriffs, constables and coroners
are officers of, 468
wife may have sureties of the
peace against husband, 469
Perjury, crime of, and definition, 225
Personating an agent, 383
Plea, when and how to be filed in forci-
ble entry, 6
of non est factum., form of, 33
of non assignavit must be upon
oath, and form of, 74
Place of payment lor bill of exchange,
61
Plaintiff, fictitious suing in name of, 328
Power of attorney, what, 29
to sell land, 510
to acknowledge deed of convey-
ance, 511
to collect debts and give receipts,
511
Posting for cowardice,crime and defiui-
tion, 273
Possession, actual and constructive,
what. 94
wrongfully obtained, 380
Precept to defendant in forcible entry,
&c. 3
to summon a jury in forcible
entry, 3
for witnesses, 293
Process in forcible entry and detainer,
and in forcible and unlawful
detainer, and in unlawful de-
tainer, 14
of attachment and its incidents,
430
for whom it will lay, 432
for what it may issue, 432
upon what it may be levied,432
upon what terms it may issue,
433
by whom it may be issued, 435
whee it may issue against for-
eigners, 435
Promissory note, what, 25
form of warrant on, 26
Proof in book debt trials, 43
in case of payee vs. acceptor, 63
in case of endorsee vs. acceptor,
64
necessary by the last endorsee vs-
maker and other endorsers, 75
necessary upon account against
partners, 8.0
for and against husband and wife
84-5
client vs. attorney for neglect,124
Property contracts, jurisdiction in, 145
iu trover, what kind, plaintiff
to maintain action, 100-1
damages in allowed upon con-
viction, 293
INDEX.
529
Protest, supra, what, 61
effect of, 61
Price, sound price does not always im-
ply sound property, 120
Prosecutor, recognizance in murder in
the first degree, 162
Profane swearing, penalty for, 428
Printer or publisher refusing to give up
author, 275
Principal and accessary, 290
R
Rape, crime and definition, 175
Recognizance of prosecutor, form of, 162
of witness, form of, 163
in manslaughter for defendant,
162
in manslaughter, for prosecutor,
167
for arson, or house breaking, of
defendant, 171
for arson, &c. prosecutor's res
cognizance, 171
for arson, &c. for prisoner, 173
of prisoner, for rape, 177
of prosecutor, in case of rape, 177
of prisoner, in bigamy, 180
of prisoner, for sodomy and bug-
gery, 182
of prisoner, for incest, 184
of prosecutor, for incest, 185
of defendant, in burglary, 189
of prisoner, for negro stealing, 193
of prisoner, for horse stealing, 197
of defendant, for receiving stolen
goods, 199
of prosecutor in this case, 200
of prisoner, for burglary in day-
time, 204
of prosecutor, 205
of defendant, for counterfeiting
bank notes, 208
of defendant and prosecutor, for
keeping base metal, 220
of defendant, for forging a prom-
issory note, 223
of defendant, for perjury, 227
of defendant, for subornation of
perjury, 229
of defendant, for bribery, 232
of defendant, for embracery, 235
of defendant, for destroying cor-
ner tree, 237
of defendant, For concealing a"
will to defraud, &c. 239
ef defendant, for withdrawing a
warrant of attorney, 244
of prosecutor, for avoiding part
of a record, 246
of defendant, for same, 247
of defendant, for false tokens, 250
3 I
Recognizance of defendant, for getting
property by false letter, 251
of defendant, for an assault to
kill, 254
of prosecutor, for same, and with
intent to ravish, 254-6
of defendant, for an assault to
rob, 258
of prosecutor, for cutting out a
man's tongue, 262,
of prosecutor, for invitation to
challenge, 267
of defendant, for duelling, 267
of defendant, for challenge to dus
el, 268
of defendant, for invitation to
challenge, 268
of defendant and prosecutor, for
carrying challenge, 271-2
of defendant, for consenting to
be second in duel, 272
of defendant, for posting for cow«
ardice, 274
of defendant, for an unlawful as-
sembly, 303
of defendant, for a rout, 304
of defendant, for a riot, 305
of defendant, for carrying unlaw-
ful arms, 307
of prosecutor for a libtl, 311
of defendant, for a libel, 311
of defendant, for disturbing wor-
ship,317
of defendant, for selling spirits
within one mile of a worship-,
ing assembly, 318
of defendant, for breaking jail,
320
of defendant, for breaking jail,
323
of aiders and abetters of a prison-
er to break jail, 323
of defendants in a conspiracy to
break jail, 324
of defendant, for common barra-
try, 327
of defendant, for maintenance,
331
of defendant, for champerty, 332
of defendant, for embracery, 335
of defendant, for extortion, 337
of defendant, for buying county
claims, 339
of defendant, for a conspiracy, 340
of defendant, for selling unsound
pork, 344
of defendant, overseer of a road,
352
of defendant, for erecting a fence
across a road, 352
of defendant, for keeping a tip-
pling house, 356
530
INDEX.
Recognizance of defendant, for gaming,'
upon justices own knowledge,
365
of defendant, for selling lottery
tickets, 367
of defendant, for cutting apple
trees of another, 374
of defendant, for keeping a bil-
liard table, 376
of defendant, for receiving stolen
goods, 377
of defendant, for bastardy, 396
of defendant, for an affray, 298
of defendant, for assault and bat-
tery, 300
by justice of the peace upon his
own view, 465
to keep the peace and appear at
court, &c. 470
of defendant, for a rescue, 278
of defendant, for a voluntary est
cape, 280
of defendant, as an accessary for
killing bastard child, 282
of defendant, for keeping a faro
bank,285
of defendant, lor the grand mos
ther's trick, 287
of defendant, for a conspiracy ,289
of prosecutor, for an affray, 297
of amount to be placed in them,
297
Rescuing a Felon, crime of, and defini-
tion, 276
Record, avoiding of, warrant for, 242
the form of, in forcible entry, 8
certificate in forcible entry, &c.20
to be kept by the justice issuing
the process of summons, 20
Removing land mark, crime and defini-
tion, 236
Receiving stolen goods, 198-200
Return, by the sheriff, on a summons in
forcible entry and detainer, 5
by a constable, or sheriffs return
on bail warrant, 474
by a constable or sheriff upon a
plain warrant, 474
upon a justice's execution levied
upon land,476
when to be made when levied on
land, 476
of the sheriff upon a sci. fa. sum-
mons, 13
Restitution, writ of, 11
Refusing to serve as a juror when in at-
tendance, judgment against, 16
Replevy upon an attachment, 438
bond upon an attachment, 447
Robbery, crime of, and definition, 190
Receipt for money on book account, 517
S
Sales, deceit in, 118-119
warranty, in what, 119
sound price does not always im»
ply sound property, 120-121
suggestion of falsehood and the
suppression of truth, 120-121
officers not to bid at, 378
how to be advertised, 473
by sheriffs and constables, when
to be made, 473
order of, upon an attachment le»
vied, 453
Sabbath breaking, penalty for, 427
Scire Facias, the form of, to a garna-
shee, 450
Servants, who are to be considered as
such in law, 86
Selling unsound or unwholsome provi-
sions, 343
lottery tickets prohibited, £66
Sheriff, shall execute process in forcible
entry, &c. 21
their duties in holding courts, 470
are entitled to the following fees,
478
how to advertise lands and nes
groes, 478
and deputies, may serve all pro-
cess issued by a justice, 471
Sign, tavern keepers to have, 413
Slaves, selling liquor to, 357
exempt from the operations of the
statute, 290
enticing him or her away, &c. 388
fire hunting by night, 412
trading with, penalty for, 419
seditious words spoken in the
hearing of, 420
runaway brought before a justice
of the peace, 424
to be advertised by the sheriff
when committed to jail, 425
beating of, prohibited, 388
Society, the origin of, 151-152-153
Specific articles, the form of the war-
rant, 49
bond for, 515
the form of a warrant by an as*
signee for property, 53
the construction of demand and
notice, 51-2
the form of a warrant tipon a
verbal contract lor specific ar-
tides, 54
Stud horses and stud colts, not to run
at large, 416
standing season without a license,
penalty for, 413
Stay of execution, prayer for, 40
the form of, 29-30
Stolen goods, receiving of, 198-200
INDEX.
531
Stealing and receiving bank bills, 202
public records, crime and defini-
tion, 240
books, crime of, and definition,
245
warrant for, 240
Statutes of frauds and perjuries, 491
Suing in a fictitious name, 328
Suits commenced by attachment stayed
in certain cases, 442
commenced by attachment to aj
bate for want of form, 442
against whom it may be institu-
ted by an endorsee, 73
Surety of the peace, by a wife vs. hus-
band,470
for the peace, affidavit in, 468
Snbpoena, the form of from a commis-
sioner of deposition, 490
form of in a criminal case, 159
the form of, 15
Subornation of perjury, crime of, and
definition, 228
Summons, for two justices in forcible
entry, &c. 3
to the defendant in forcible en-
try, 5
when served on defendant, and
how, 6
in nature of sci. fa. for non-at-
tending juror, 17
in nature of a sci. fa. for non-at-
tending witness, 18
T
Taking a reward to help to stolen goods,
325
Tavern keepers to have a sign, 413
Tax sales, sheriff's deed for, 497
Tenant, not to be heard to say in forci-
ble entry and detainer, 14
in common, a deed of partition
between, 504
Theft-bote, crime of, and definition,376
Thimble, game of, 283
Tith not to be drawn in question of for-
cible entry and detainer, 14
Tippling houses, what, 355
Torts and wrongs beyond $20 unconsti-
tutional before two justices of
the peace, 86-7-8
Tobacco inspectors, proceedings against,
43
Toll, taking too much, 409
Trading with slaves, penalty for, 419
Treating at elections, 341
Trover, demand for unconstitutional, if
beyond $20, before justices,
86-7-3
the action of, and meaning of the
term, 99
Trover, for whom the action will lie, for
what it will lie, 100-1-2
form of the warrant for husband
and wife, for goods of the wife
taken while sole, 104
Trespass, actions of, valid for $20 & un-
der befote justices, &c. 86-7-8
witli force and arms for killing
three sheep with dogs, 89
with force and arms, when the
proper remedy, 89
on lands, what, 90
quarc clausumfregit, for what it
will lie, 94
by whom maintainable, 94
u
Unconstitutional laws, what, 86-7-8
Unlawful detainer, what, and form of
complaint, J4
assembly of slaves, what, 426
assembly, definition of, 427
Usury, the crime of, and law governing
it, 368-369
V
Voir dire oath to a party under the book
debt law, 44
Venire facias to the sheriff on forcible
entry to summons a jury, form
of, 5
Vendor is bound to disclose all known
defects, 122
Verdict, the form of in forcible entry,
for plaintiff, on the issue of not
guilty, 8
the form of in forcible entry, for
defendant, 9
general verdict good when more
charges than one are included
in various counts, 292
Vice and immorality, defined by the
statute, 391
Voluntary escape, crime of, pnd definis
tion, 279
w
Warrant, for live stock, 43
upon an open account, &c. 42
tne form of, upon a balance on
settlement of accounts, 32
the form of, assignee vs. maker
on bond, &c. 31
in civil suit, when to issue, 23
form of, for balance due on bond,
25
form of, on promissory note, 26
form of, on an agreement in writ-
ing, 26
532
INDEX.
Warrant, of attorney to stay execution,
what, 29
the form of, upon an order for
money, 41
for money loaned and advanced,
47
for money had and received, 47
for money laid out and expended,
47
for specific articles, form of, 49
for specific articles upon a ver-
bal contract, £4
by the payee of a bill of exchange
against the acceptor, 63
by the endorser against the ac-
ceptor, G3
by payee or drawer, for non-ac»
ceptance, G5
by endorser vs. the immediate
endorser, 6G
by assignee vs. assignor of a bill
single or promissory note, G7
by the last endorser against the
second endorser, 67
by the last assignee vs. the last
endorser, 08
by the executors of the last as-
signee vs. the drawer, G8
by an administratorof an assignee
vs. the drawer, 68
by an assignee vs. the adminis-
trator of the drawer of a bill,70
by the executor ofan assignee vs.
the administrator of the endor-
ser of a promissory note, 71
by the last endorser vs. the first
endorser on a bill single, 72
by endorser vs. the maker of a
promissory note and first en
dorser, 73
by the last endorser vs. the ma-
Iter and all the other endor-.
sers, 74
by partners vs. the makers of a
promissory note, 78
by partners vs. partners on a
note, &c. 79
against partners on a promissory
note by the payee, 78
by partners against an individual
on open account, 79
by partners against an individual
on a settled account, 79
by an individual against partners
upon an open account, 80
against husband and wife, on a
promissory by the wife when
a sole, 82
by a husband, and note given to
his wife while sole, 82
against husband and wife, upon a
note made by wife when sole,
82
Warrant, against husband & wife, upon
an open account created by
the wife, 84
for work and labor done by a
servant, 85
in trespass with force and arms
for killing three cows, 89
in trespass with force and arms
for killing six hogs, 89
in trespass to the person, form
of, 90
in trover, the form of for seven
hogs, 99
in trover, for abed and furniture,
103
in trover, by husband and wife
for goods taken of the wife
while sole, 104
foran assault without abattery, 91
in trespass quare clausamfregit95
by an executor vs. one who cori-
verted the goods of the testa-,
tor, 104
by a person to recover back fif-
teen sheep won on a horse
race, 105
in sales or exchange, what, 119
for erecting a mill by means of
which plaintiff's land is injur-
ed,128
by a client vs. attorney, for neg-
lect of duty, 123
against a ferry keeper foi keeping
a bad boat, 124
by a guest against a tavern keep-
er, &c. 125
against a person for keeping a
foul ditch, &c. 126
against a person for bringing an
unruly horse into company,127
against a master for a servant for
running his cart against plain-
tiffs and overturning it, 128
for an escape on ca. sa. 128
against an officer for returning a
warrant at a time and place
different from the one pointed
out to plaintiff, 129
against justice of the peace for
refusing sufficient bail, 129
against justice of the peace for
refusing good security for stay
of execution, 130
against justice of the peace for
refusing to grant an attachment,
131
by bailor or bailee, for keeping
two barrels of salt, 132
against a carrier for the loss of a
barrel of wine, 133
by a pawnee or pawner, for dam-
age done broad cloth, 135
INDEX.
533
Warrant, against a carrier for iron he
failed to deliver, 134
against one for excessive use of a
hired horse, 135
for an injuiy done to a loaned
horse, 13G
for fraud in the sale of a horse by
misrepresentation, 137
for fraud in the swap of horses
by suppressing the truth, 138
for breach of warranty in the sale
of a horse, 138
proof necessary to maintain the
action, 139
for a fraud practised by defendant's
agent, 139
for selling a cow to which de*
fendant had no property, 140
against merchant for deceit prac-
tised by his clerk, 141
for the crime of murder in the
first degree, 157
necessary prerequisites for a
state's vvarrant, 158
for arson or housebreaking, 170
for rape upon a woman, 176
for rape upon a female child, 176
for sodomy and buggery, 184
for incest, 184
for burglary, 188-189
for robbery, 191
for negro stealing, 192
for selling a free person of color,
192
for larceny or stealing, 195
for receiving stolen goods, 199-
201
for burglary in the day time, 204
for forging the resemblance of a
bank bill, 206-7
for fraudulently keeping counter-
feit notes, 209
for fraudulently keeping coun-
terfeit notes when there is no
such bank, 209
for altering and erasing bank bill,
210
for offering to pass counterfeit
bank bill, 211
for fraudulently filling up bank
bills, 212
for making a plate to stamp coun-
terfeitbills, 214
for concealing plate to stamp,
&c. 214
for making paper of the descrip-
tion of bank bills, 216
for keeping possession of such
paper, 216
for passing counterfeit coin, 218
for making counterfeit coin, 219
for keeping in possession base
metal, 219
Warrant, for forging a note of hand, 222
for altering a note under seal,
from $2 to $200, 222
for passing a forged promissory
note, 224
for transferring a forged promis-
sory note, 224
for the crime of perjury, 229
for subornation of perjury, 229
for bribery against a judge, 231
for bribery against a justice of
the peace,233
for embracery of a jury, 234-334
for destroying corner tree, 236
for destroying a last will and tes-
tament, 238
for concealing a will to defraud
legatees, 239
for stealing public records, 240
for stealing a writ, summons and
prosecution bond, 241-243
for withdrawing from the files a
warrant of attorney, 242
for avoiding a part of a record,242
for stealing part of a record book,
246
for obtaining property by false
tokens, 249
for getting into possession by
means of counterfeit letter, 251
for an assault by shooting at ans
other, 253
for an assault with an intent to
commit a rape, 255
for an assault with an attempt to
rob, 258
for maliciously cutting off the
tongue of another, 260
for maliciously pulling out the
eye of another, 260
for maliciously biting off the nose
of another, 261
for maliciously cutting off the
hand of another, 261
for castrating a man, 262
for fighting a duel, 265
for challenging to fight a duel,266
for conveying a challenge, 270
for consenting to be a second in
a duel, 271
for posting a man as a coward,273
for a rescous, 277
for voluntary escape, 279
against an accessary before the
fact, 281
for keeping a faro bank, 285
for exhibiting the game of thim-
bles, 286
for exhibiting the grand mother's
trick, 286
for a conspiracy, 288
for an affray, 296
for assault and battery, 300
534
INDEX.
Warrant, for an unlawful assembly, 302
for a rout, 303
for a riot, 305
for carrying unlawful arms, 306
for false and pretended prophe-
cies, 308
tor a libel, 310
for disturbing public worship, 316
for selling spirits within a mile
of a worshiping assembly, 316
for obstructing the execution of
lawful process, 319
under two for assisting to break
a jail, 322
for a conspiracy in breaking a
jail, 322
for taking a reward to help the
owner to stolen goods, 325
for common barratry, 327
for suing in a fictitious name,328
for maintenance, 330
for champerty, 332
for extortion, 336
for buying county claims, 338
for a conspiracy, 340
for selling unsound provisions.343
for common nuisances, 349-359
against an overseer of a road, 350
for keeping a disorderly tavern,
353
for keeping a bawdy house, 354
for keeping a gaming house, 354
for keeping a tippling house, 356
for selling liquor to slaves, 357
for eaves dropping, 358
for keeping an ordinary without
a license, 360
for keeping an ordinary upon a
constables notice, 361
for playing and betting upon a
game of cards, 362
for betting upon others playing
cards, 363
Warrant, for gaming, issued by a justice
of the peace upon his own
knowledge, 365
for selling lottery tickets contra-
ry to law, 366
for false imprisonment, 368
for usury, 369
for lewdness in exposing his ors
gan of generation, 370
against a man and woman for
lewdness, 371
for writing an obscene and inde-
cent libel, 371
for burning a fence, 373
for cutting off the ear of a horse,
373
for cutting down apple trees of
another, 374
for unlawfully keeping a billiard
table, 375
for receiving stolen goods, 377
forbidding at his own sale, 379
against a deputy sheriff for bid-
ding at his own sale, 379
for taking wrongful possession of
land and premises, 380
for branding a wrong miller's
name on a barrel of flour, 381
for fire hunting in the night time,
382
for corrupting springs, wells, &c.
383
for personating an agent, 384
for stirring up strife and suits by
constable, 385
against a justice of the peace for
issuing a warrant wrongfully,
386
for dealing with a slave without
permit in writing, 387
for beating a slave, 388
for enticing away a slave from
his master's service, 389