TO THE READER
Direct your attention first to the "Explanation and Errors'*
at the end of the volume.
Always look to the Index. It is, on many subjects, more full
than the text, as, for instance, on the title Devisavit vel non.
On page 8, three exceptions are stated to the rule that
transitory actions follow the person of the defendant. The
first and tjiird are so stated as possibly to mislead. Although
two defendants do reside in different counties, yet if they can
be found in the same county, they may be sued there whether
it be the residence of either, or not.
So if the maker or drawer of a note or bill is found in the
same county with the indorser, he and the indorser may be
sued there jointly; or he may be sued /done in any county
where you can find him.
The exceptions in the text refer only to the case of an origi¬
nal and counterpart.
On Page 43, Sec. 70, it is stated that judgment by default
may be taken against a defendant'not appearing at the trial
of the issue. Although it is a rule that there can be no judg¬
ment by default where there is a plea, yet where that plea is
abandoned there may be, and must be.—Is it not abandoned
by his failing to appear and submit it to the jury? who is au¬
thorized to read it to the jury? who can appear .for him? It
is a default in appealing and defending the suit.
o^' A
LAW SUIT,
IN THE
CIRCUIT COURT OF TENNESSEE.
AUZAXJCZI, TO A law student.
LxjjjAi\Ui\ ,liju.,.
-tinted at the office of the banner of peace.
1852.
Bntered according to act of Congress in the year of oar Lord, 18d2
BY A, CARUTHERS,
In the Clerk's office of the District Court of Middle Tennessee
HISTORY OP A LAW SUIT IN THE.
CIRCUIT COURT OF TENNESSEE.
(addressed to a law student.)
Sec. 1. When you are employe.) to bring a suit, the first
thing you have to consider is, ip what Court you will bring it
and. the second is, what form of action will be most proper.
Let us suppose for the present that you are employed to col¬
lect the following note:
Lebanon, Jan. I, 1850.
Twelve months after date I promise to pay James Hart, or
order, one thousand dollars.
JOHN SMITH.
You mu3t commence your action in the Circuit Court, that,
b^ng the only tribunal that has jurisdiction of the case. In
regard to the form of action, you may bring either debt or
assumpsit. The action of debt lies on all contracts for the pay¬
ment of money whether verbal or written, whether under seal
or not under seal. Assumpsit lies on all contracts written or
verbal which are not under seal. Let ua decide that you will
bring debt on this note.
Sec. 2. What is the first step you have to take? You must
first go to the Clerk of the Circuit Court, and give a ■prosecu¬
tion bond ; which will be in the following form:
" We James Hart and Jacob Jones acknowledge ourselves
indebted to John Smith in the sum of two hundred and fifty
dollars to be void, if the said James Hart shall prosecute with
effect an action of debt which he is about to commence in the
Circuit Court of Wilson county against the said John Smith,
or If he fail to do so sjtrall pay all such cost3 and damages as
may be aHvdrded agafilfpliim by the Court having cognizance
thereof. Witness ur hands and seals this 1st day of April
165.1.
JAMES HART, [seal. I
JACOB JONES, [seal.]
It is not ueemeu „ecessary that ..art the piaintm
should execute the bond ; it is sufficient for some friend to do
so who is willing to go his security for the costs. The plaintiff
is liable for the costs by the mere act of instituting the suit.
But as it might be desired by the defendant to sue both the
plaintiff and his security for damages at some future time, it
is proper they should both sign the bond. By the costs of the
suit is meant the fees of the witnesses and Qffibers who may
have to perform services for the parties in the progress of the
suit. These have to be paid by the party who looses it. As the
plaintiff commences the action and thereby renders it necessa¬
ry that these costs should be incurred, it is proper that he
should give good security that they will be paid if he looser
it. The bond is made payable to the defendant, but is really
intended for the benefit of the officers and witnesses who may
be entitled to fees.
Sec. 3. Pauper Oath, It sometimes happens that a plain'
tiff has a good cause of action, but is too poor to bear the
expenses of the suit, and nobody is willing to go security for
him. In this case the law allows him to take the pavper oath
instead of giving a prosecution bond, except in actions of
slander, malicious prosecution and false imprisonment; in
these security must always be given. The following is the
form of the oath, which you will observe consists of two parts.
1st, Inability to bear the expenses of the suit, 2d, a right to
recover:
" I James Hart solemnly swear that owing to my poverty I
am unable to bear the expenses of the law suit which I ant
about to commence in the Circuit Court of Wilson county
against John Smith, and that I am justly entitled to a recovery
from the defendant of an amount within the jurisdiction of
said Court, to the best of my belief, so help me God.
Sworn to before me, April 1, 1851. JAMES HART."
W. Hart, Clerk, W. Co. C.
When a man gives security for the costs, he ha.s a right to a
writ without swearing to the justice of his claim or giving the
Clerk any evidence of it whatever. In your case for instance
you do not have to show him the note. But when he gives no
security, it is proper he should at least swear to his right. This
oath has to be taken before the Clerk.
Sec. 4. Having given a prosecution bond the Cl$rk is now
bound to give you a writ. The issuance-of the writ is re all y
the first step in a law suit; it is the coffijnencement of*the ac¬
tion, the giving of security being merely a preliminary condi¬
tion. The writ is in the following form:
THE STATPW TENNESSEE:
To the Slierriff of Wilson County.
Summon John Smith to appear before the Circuit Court of
Wilson county, to be held at the Court-house in Lebanon, on
the 1st Monday in August next, to answer James Hart of a pica
that he render unto him one thousand dollars which he owes
to and unjustly detains from him, to his damage one hundred
dollars. Witness, W. Hart, Clerk of said Court at office in
Lebanon, this 1st Monday in April, A. D. 1851, and of the
Independence of the U. S. the 75th.
W. HART, Clerk.
Sec. 5. Before we go any further it is proper that your at¬
tention should be particularly directed to the various parts of
which this writ is composed.
1. The Style. Our constitution provides that "all writs and
other process shall run in the name of the State of Tennessee."
It is the command of the State to her Officer the Sheriff. The
istyle of this "writ therefore must be the style of all process,
" The State of Tennessee."
There are three kinds of process.
1. Original or leading process, which is that by which a suit
is commenced or originated.
2. Mesne process, which is all that issues between the be¬
ginning and the end of the suit, such as Subpoenas for witnesses.
3. jFinal process, being the Execution, whereby the suit is
brought to an end. The term Writ is applied generally to all
these processes.
2. The address or direction of the Writ," T o the Sheriff of Wil¬
son county." He is the only officer who can execute process
from the Circuit Court unless he is a party; in that case it is
directed to the Coroner; if he too be a party, or there be no
Coroner, it is directed to any Constable.
3. The Command, "Summon." This gives the Writ its
name, it is a Summons. The Sheriff must see the defendant
personally and cite him to appear, no judgment can be render¬
ed against a man without giving him notice in some form to
appear and defend himself. In some cases however the notice
is given by attaching his property. Wherever a man may be
himself, it is fair to suppose he keeps an eye upon his- property,
and if that is touched, will receive notice of it.
Sec. G. The Writ of attachment is original process which
commands the Sheriff to seize the defendant's property, so as to
compell him to appear and answer the plaintiff's action. It can
ODpr wi ^-Uowing cases : 1. Where the defe^ant is
¥ij^Bfcmhabitant^J$^Stote.2. W here be is removing him-
Bclf^nu of the StJf|if. 3. V»'her^Hfe is about to reniove out Ox
the State. 4. WhSre he 'is refriowng his property'out oty.be
State. 5. Where he is about to remove his property out oi the
State. 6. Where he is removing himself out of the County
privately. 7. Where lie has removed out of the Countyprivately.
8. Where he so absconds or conceals himself, that process can¬
not be served on him personally. 0. Where he is concealing
his property. # ■ '
Sec. 7. If the defendant is in either of .these categories
you may go before a Justice of the Peace or Judge of the Cir¬
cuit Court, and make oath to the fact, and also that he is in¬
debted to you the amount you claim, thus:
"STATE OF TENNESSEE, Wilson County, April 1, 1S51.
James Hart makes oath that John Smith is indebted to him
to the amount of one thousand dollars, and that said John
Smith is removing himself out of this State.
JAMES HART.
Sworn to and subscribed before me, Leroy Cage, J. IV.'.
*' •
You next have to give a prosecution bond as follows : " W#
James Hart and Jacob Jones acknowledge ourselves indebted
to John Smith in the sum of two thousand dollars ; to he void
if the said James Hart shall prosecute with effect an Attach¬
ment which he has this day obtained against the estate of the
said John Smiih, returnable to the Circuit Court of Wilsryi.
county to be held at the Court-house-in Lebanon on the Jet,
Monday in June next, or if he fail to do so. shall pay the said
John Smith all such costs and damages as may be awarded
against him in said Attachment suit or may be hereafter re¬
covered against him in any suit brought for wrongfully suing
out said Attachment. Witness our hands and seals,' this 1st
day of April, 1851.
JAMES HART, [seat..!
JACOB JONES, [seal.]
On this affidavit and bond being given, the Judge or Justice
issues an Attachment, as follows : ' *
"The State of Tennessee, To the Sheriff of Wilson county.
Whereas James Hart has complained on oath before me Leroy
Cage a Justice of the Peace for said County, that John Smith
is indebted .to him in the sum of one thousand dollars, and
that said John Smith is removing himself out of this State,
and the said James Hart having given bond and security ac¬
cording to law: you are therefore com manned to attach the es¬
tate of the said John Smith or so much thereof repleviable on
7
■security as shall .fee of valij^ufiicient to satisfy said debt and
•; %riff shell testate, go attached in' ,y;6ur hahdsftb secure,
or so to provide, that the sfaihelhay be liable to further proceed¬
ings to* be had thereupon di the Circuit Court o,f Wilson county
to' be' held' at the Oofirt house in Lebarion on the 1 st Monday
in Juhe fiext, so as to compel the said John, Smith' to appear
tind! answer the above «oniplaiht of Jhrnes Hart; when and
whebe you shall make known to baid Cqurthow you shall have *
executed this; Writ. Witness Leroy*Cagd;Justice of the Peace,
thi3 1st day c^' ^piil, 1851. '
■ ; 5 LEROY.DAGE, J. P. [seal.]
You Will see from the language of "these proceedings that
the plaintiff must be a creditor to entitle him to the attachment,
as he has to swear to the ampunt of his ijebt. If therefore it
is a claim for damages for same wrong done, as for slander,
assault mud battery, or at trespass on his property, he cannot ■
bue by?this lYrit, but must rely upon ^ie:Summons. , :
. 'Sec. ,8. .4. In our analysis o*f the Writ of Summons the fourth
p$rt is the Court in which the party is to appear. In our judi¬
cial systena we have five Courts.
i. The Circuit Court, which is the Court of most extensive
jurisdiction,; a3 it has cognizance of all cases, which are no A
specially assigned to some other tribunal. 2. The Justice's
Court, which has a,pretty extensive jurisdiction which may be
clashed under the following.heads. • .
1. All debts due by note, bond or settled account signed by
the parties, or upon endorsements of notes waiving demand
and notice, where the balance due does not exceed five hun¬
dred dollars. 2. Unsettled Accounts, where the balance due
does not exceed one hundred dollars. 3. Damages claimed for
the breach of any contract or for any trespass or wrong done,
where the amount claimed does not exceed fifty dollars, ex¬
cept actions of slander. .4. Actions of Replevin, which go,
not for damages, but for the specific property, where the value
of it does not exceed fifty dollars. 5. Proceedings of Forcible
Entry and Detainer, to recover the possession of land forcibly
taken or withheld from the plaintiff. 3. Ti-ie County Court
which lays off and superintends roads, appoints administrators,
and guardians, and qualifies executors and superintends the
administration of deceased persons estates, appoints jurors to
the Circuit Court, takes care of the poor, may allot widows their
dower, and make partition of decedent's estates, and many
other miscellaneous matters. 4. The Chancery Court, which
has jurisdiction of all matters of equity and good conscience,
8
5. The Supreme Court, which has jurisdiction of all appeals
from the Circuit and Chancery Courts.
Sec. 9. 5. The Venue, that is, the county in which the suit
is brought. All suits must be brought in the proper county,
and to determine what is the proper venue, we must observe
the distinction between local and transitory actions. Local ac¬
tions are for,local wrongs, that is, wrongs that must have been
committed at a particular place: thus a trespass on land must
necessarily have been committed wThere the land lies. These
local actions must be brought in the county where the land lies.
Transitory actions are for causes that may have happened any
where, as upon contracts, injuries to the person or personal
property. These actions may be brought in any county where
the defendant can be found except in three cases.
1. Where you wish to sue two defendants and they reside
in different counties. You may bring the suit in the county
where either defendant resides, and issue a counterpart of the
Writ against the other defendant in the county where he
resides.
2. When the plaintiff and defendant both reside in the same
county, the suit must be brought in that county. Acts of 1849,
page 181.
3. Where a joint action is brought against the indorser and
the maker or drawer of a note or bill of exchange, it must be
brought in the county of the maker or drawer's residence, and
if the indorser lives in another county, the counterpart must be
issued to that county, 1827, C, & N, 417.
Sec. 10. 6. The house, "at the Court-house in Lebanon.
The Court must always be held in the Court-house unless it is
impracticable, when the Court may adjourn to any other house
in the town.
7. "To answer." It is a Summons to answer, technically
called, a Subpcena ad respondendum, as a summons for a witness
is called a Subpcena ad testificandum, to testify or give evidence.
8. The parties. These are plaintiff and defendant. He
who complains is called the plaintiff; and he of whom he com¬
plains is the defendant. Sometimes there are two or more
plaintiffs and defendants. If two or more persons are joint
owners of property injured, they must join in the suit; if a
debt is due to two or more, they must join in suing for it: if
two or more persons join in committing an injury or in con¬
tracting a debt, they may be all sued jointly, or either one or
any two or more may be separately sued. If a written contract
has been executed and assigned by the payee to a third per¬
son the assignee may sue the maker in his own name. But if
A has bought an open account of B which-he has against C.
9
A -will have to sue in the name of B for his use; the writ would
run " to answer B who sues for the use of A of a plea &c."
If the creditor dies, his administrator or executor must sue ; &o
if the debtor dies his administrator or executor must be made
defendant.
9. The action. The defendant is summoned "to answer
James Harfyof a plea that he render unto him $1,000, which he
owes to and unjustly detains from him." This language in the
writ makes it an actionof debt. Pica in the old law langu age means
action : to answer him of a pica of debt, is to answer him of an
action of debt. To the word "plea" every writ is alike, but the
words that immediately follow are of great importance, as they
express the form of action.
Sec. 10. All our aetions may be divided into two classes,
1. Those founded on contract. 2. Those founded on tort or
wrong done. The actions arising from contracts are debt, cove¬
nant and assumpsit.
1. Debt lies in all cases where a certain sum of money is
due by contract, as on the above note, or an open account for
the price of goods sold, or work done, or money loaned and so
forth.
2. Covenant lies to recover damages for the breach of any
contract under seal, where the instrument itself does not show
the amount due, but you have to resort to evidence to show
how much you are entitled to recover. The words to be inserted
in the writ after the words plea are " covenant broken."
3. Assumpsit lies to recover damages for the breach of a sim¬
ple contract. A contract under seal is called a specialty or spe¬
cial contract; a contract not under seal whether verbal or in
writing is called a simple contract. Your note is a simple con¬
tract called apromisory note ; if it were under seal, it would be
a specialty, or bill single, or writing obligatory. If a simple
contract is for the payment of money you may bring debt or
assumpsit at your election; but if it is to do something else,
as to pay bank notes or property, or to build a house, then you
do not claim a debt, but damages for not doing the thing stipu¬
lated, and you must bring assumpsit. Just so wTith a specialty ;
if it is to pay money you may bring debt; if it is to do any
thing else you must bring covenant. If you bring assumpsit
you insert after the word jtlea, " of trespass on the case."
Sec. 11. Actions of tort. These are trespass, trespass on
the case; detinue, replevin and ejectment.
1. Trespass, lies for any injury to the person or property
commited with force ; it is called trespass vi ct armis, wi:h force
and arms. After the word plea in the writ, simply insert the
word "trespass."
10
Trespass on the case, liesMor all injuries or wrongs or
torts not committed forcibly;, but resulting from sompdmproper
act.,If a man cuts a tree down across,my.fence? rfas is an in¬
jury by direct force,and trespass is the propef action. If I stum¬
ble Over the tree at night and injure myself, ; or if-my horse runs
over ii and breaks his neck, case is the remedy ; "this being a
consequence and not the direct result of thejbrOng doile. "In¬
sert the . yvord, " trespass on the casq" aftqr;« " plea," and you
have this form of action. . You will observe^hat the very same
words are used in the writ of assumpsit. That is an? action of
trespass on the, case on promises; this is trespass pn the case
hi tort. ' ■ W<>'
The distinction between trespass- and case, is pf very little
consequence now, j^s it is provided by -a' late statute that case
may be brought in any case where tresp^pjs wofffld^ lip. So that
it is always safest where there is tiny soft#f doubt whether tres¬
pass will lie, to bring trespass on,the ease. 1 -
3. Detinue lies in any case where the defendant has got pos¬
session pf the plaintiff's personal property either lawfully or
unlawfully, and wrongfully detains,it from Mm; and where the
plaintiff wishes to recover the specific property, and not the
value of it. The words proper for a writ'of detinue, after the
word ph a, are these, "that he render to the said James Hart
certain goejjds and chattels of the value of five* hundred- dol¬
lars which he unjustly detains from Turn/'
4. JlepLvin lies in the same cases in which detinue lieshThe
difference is that in detinue the defendant retains the possession
Until the suit is ended, and then, if the plaintiff succeeds,1%c
recovers the possession by final process ; whereat in replevin
the plaintiff gets possession by the. original process and keeps it;
until the termination of the suit,and then the.defend ant, if he suc¬
ceeds, regains it by final process: whereyer the law gives an extra¬
ordinary remedy^ it requires, the plaintiff ,t6 swear to his right,
when it dispenses with prosecution bail m behalf, of a pauper,
it requires of him an: affidavit of Ms'right; wfferi it gives an at¬
tachment to the creditor it requires him to . swear to his debt;
So if the plaintiff wants the possession of the property sued for,
pending the controversy, he must first make affidavit of his
right to the possession. The fellow,ing form of affidavit is con¬
ceived to be appropriate to every case, whether of unlawful ta¬
king or of wrongful detainer merely.
Affidavit. "State of Tennessee, Wilson county, James Hart
makes oath according to the best of his information and belief
tliat he,is entitled to the possession of a certain iron grey horse
about six years old and about sixteen hands high, .which was
heretofore taken out of his possession and is' still detained from
1!
him unlawfully and against kis will, by one John Smith.
S|wom to and subscribed* April 185 J. • ^
,» " , 'JAMES* KAM."
W. Hart, Clerk*, W. O. CJ ' '
Replevin bond. The plaintifF must next give a replevinfiond,
which also answers for a prosecution bond. , it is to be taken in
double the valdp of the property and he conditioned to perform
the judgment of.tka Court in ..the case.. ^ The following form
will ansvfer: J* , « , , "j, • ^
" We, JanaeS Hart and Jacob Jones acknowledge ourselves
.indebted to John Smith in ,the sum o£two thousand dollars,
be vojd .if the said James Haj't.shall abide by and perform the
judgment of the Court in, art action of replevin which he is
about to commence in the Circuit Court of Wilson county
against the said, John Smith for an iron grey horse. Witness
our hand? and seals this 1st day of April 1851." .
" ' JAMES HART, '[SEAL!]
JACOB JONES, [seal.]
Writ. Next follows the writ; which i^ the sdme as the sum¬
mons set outirv&odti6n4, to the words w to answer James Hart"
then proceed <£ WhdreTore he, detains his goods and chattels, to
wit 4 a. certain iron grdy horse about six years'old and sixteen
hands high? to his damage one thousand dollars; and do you
also taker said horse from the possession of the said John Smith
and deljver Jiim to» the said James Hart or his order." The bal¬
ance of the writ is the same as the other,
5. 'Ejcctr\icti!t% this action lies to recover the possession of
land on the ground of title, fn the action of forcible entry
and detainer, "Which-may be commenced in the Circuit Court
a3 well as before a Justice, the question of title is not involved;
the tally queefion being was the plaintiff in possession, and
was he forcibiv»and unlawfully turned out or kept out by the de-i
fendant. In the action of ejectment the questions are, has the
plaintiff the> title to the land; and did' the defendant keep him
out of possession wrongfully. The first step in this action is
to file a declaration with the Clerk; then to give a prosecution
bond ; and then obtain the writ. This is in form an action by
a lessee of the land for a, term of yeaks against one who ejected
him. The plaintiff and defendant are both fictitious persons.
The real claimant of the land makes a fictitious lease to the
nominal plaintiff who ajledgbs in the declaration that he entered
on the land, and the nominal defendant, called the casual ejec.
tor, entered npon and ousted hirm The real defendant receives
notice of the suit, and copi es in, and is admitted defendant. These
fictions fyowctfer arfe abolished by the act passed 2ljst February,
12
1852, to take effect on the 1st day of' September, 1852- I
will merely give you the form of the declaration which will be
used under that act.
"State of Tennessee, ) Circuit Court, December
Wilson county. ) Term, 1850.
.Tames Hart complains of John Smith, who is in Court by sum
raons of a plea wherefore he broke and entered his close and
ejected him. For that the said James Hart heretofore to wit,
on the 1st day of June 1850, was seized in fee, and possessed of a
certain tract of land lyingin said county, in District No. 1. and
bounded as follows : Beginning at a beech on the bank of
Spring Creek; runing North 320 poles to a walnut; thence
East 320 poles to a cedar; thence South 320 poles to an elm;
thence West 320 poles to the beginning; containing 640 acres:
and being so possessed, the said John Smith afterwards, to wit:
on the day and year aforesaid entered into said premises and
ejected him, and still unlawfully withholds the possession there¬
of from the plaintiff, to his damage $100, and therefore he sues.
WM. BLACKSTONE, Attorney for plaintiff."
If the plaintiff claims only a life estate, or an estate for
years, you must state that fact instead of the words seized in fee.
Having filed this declaration with the Clerk and given the usual
prosecution bond you are entitled to :he writ of ejectment,
stating the form of action after the word plea, thus, "wherefore
he broke and entered his close and ejected him."
6. Tj •over. This is an action on the case to recover damages
for the unlawful taking or detention of personal property. It
will lie in all cases where detinue or replevin will, and in all
cases where trespass for taking property will. The difference
between trover and detinue is, that fn the latter you go for the
specific property; in the former you go for the value.
7. Slander is an action on the case for false and malicious de¬
famation either verbally, or by published writings, prints, or
pictures.
8. Malicious prosecution is also an action on the case for ma¬
liciously and without any probable cause prosecuting the
plaintiff. °
Sec. 12. Damages. The next part of the writ, which always
follows the statement of the form of action, is the statement of
the damages sustained by the plaintiff for the injury complained
of, "to his damage one hundred dollars." Some damage is al¬
ways suppose# to result from a tort or breach of contract. The
injury Hart complains of in regard to this note is, the detention
of Jhe debt; the damage is the interest from the time it was
13
ctue. The plaintiff may recover less debt and less damage than
he lays in his writ, but not more. It is . only important there¬
fore that he state them high enough.
Sec. 13. Teste and signature, "Witness W. Hart Clerk of
said Court at office in Lebanon, this 1st Monday in April,
1851." Our constitution provides that all process shall "bear
teste and be signed by the respective Clerks." Clerks very often
sign writs in blank and give them to Attorneys, who, when
they are employed take the prosecution bond, and fill up the
blanks with the names of the parties, the form of the ac¬
tion and the dates. AH writs are dated on the 1st day of the
preceding term of the Court.
Sec. 14. Isuance of the writ. The Clerk or Attorney must
endorse on the back of the writ the day on which it issues. On
its face it is always dated on the first day of the preceding
term : this endorsement therefore is necessary to show when
it actually did issue.. The day of its issuance is the com¬
mencement of the suit, and itj is important in many respects
that it should be known. The endorsement is simply in the
following words " issued 1st April 1851, W. Hart, Clerk." It
is unlawful to issue process on Sunday unless the plaintiff
makes oath before the Clerk that the defendant is removing or
about to remove himself or his property out of the jurisdiction
of the Court on Sunday. In that case the Clerk must endorse
on the writ the fact of such oath having been made.
A writ must be issued at least five days before the com¬
mencement of the term of the Court to which it is returnable.
If issued that long before the next term it must be made
returnable to that term; but if issued within that time it
must be made returnable to the next succeeding term. As
our Circuit Courts always commence on Monday, the preceding
Wednesday is the last day on which writs returnable to the
next term can issue. The writ of replevin is an exception to
this rule, that may be executed, and of course may be issued
on any day before the commencement of the term to which it is
returnable.
Sec. 15. Docket. When the Clerk issues a writ he must
enter it on a bobk kept for the purpose, showing the name*
abodes of the parties, and the plaintiffs prosecution bail, (the
form of action and the plaintiff's Attorney, if obtained by his
Attorney) and when the writ issued. This constitutes his ap¬
pearance docket, and it should be laid off' into columns thus :
14
Attorneys.
Parties j. Action |Wheu isucd
Security
Return
Rem arks
Rlsckstone.
i
Jaro^s 11art
YS.
Joiln SniitL
WilsoaCo
Debt
Wilson co
April 1, *50
Jacob Jones
Wilson co
Executed
The column for the Sheriff's return cannot of course he filled
up until the writ "is returned. The column for remarks is left
to note what may be done in the case at the return term.
Sec.- 16. Delivery to the Sheriff. It is your duty or your
clients to take the writ when issued and deliver it to the Sheriff
or his deputy, or to the coroner or constable when directed to
either of them. The Sheriff is to endorse on i,t the day on
which he receives it, thus, "came to hand 2nd April 1851, W.
Scott, Sheriff.He must then proceed to obey its command,
by using all necessary diligence to find the defendant, and
summon him to appear. It will not do to send him word or
give him written notiee; he must se& him, ani for that pur¬
pose he must go' to his residence if he lives in his county, un¬
less he finds him elsewhere. He must #exccute it five days
before the return term. He* cannot execute it on Sunday ex¬
cept when issued on Sunday on plaintiffs oath and so endors¬
ed by the Clerk; nor a person attending on, goi*ng to or returning
from a muster, election or Court as a witness, or juror, nor on
a member of Congress or the Legislature, attending those bodies,
going to or returning from them.
Sec. 17. Return of the Writ. Whether the Sheriff has.
served the writ or not, he must return it on the. first day of the
term to which he is commanded to summon the defendant to
appear. This is Called the return term of the writ, it is also
called the appearance term, because the defendant, if summon¬
ed is bound to appear then. The return of the writ net only
consists in bringing it back to the office of the clerk from which,
it emanated, but also in the Sheriff's endorsement on it show¬
ing whether he has executed it or not. He must either show
by his return that he has summoned the defendant, or he must
give some legal reason why he has not done so, else his return
will not be a due, sufficient or legal return. If he does not
bring the writ back at all, or if he simply brings itinto the office
without making any return on it, you may by motion compel
him to do so, and if he makes an insufficient return you may
have judgment against him for $125. If he ha3 actually sum¬
moned the defendant, he endorses the writ thus, " executed 3rd
April 1851, W. Scott, Sheriff." If it is a writ of ejectment, it
is ffie Sheriffs duty not only to summon the defendant, but t©
25
serve a copy of Ae, declaration i'sr to leave a copy'
with him. % In that ease he should^efhrn.j»-''vaunT[moaed the de¬
fendant arid deli^erfed hi^ d%<^y -Of th%declaration 3rd April
1851, W. Sco^, is'awritof replevin he should
return ."'the. defendant summoned, aad 4he hb]?se talteri and de¬
livered do plaintiff, 3rd April r18#l| W. #cotty,^Sheriff. Any-
equivalent words would of eoUrso'douh all thqse eases.
Sec., 18. Non est invfnlns,, alu^s and jufticial attachment < If
the Sheriff has not bdehabl'e to find tfifetdefendant so as to serve
the process on him, his, ratuph is* the 'defeMant; is not to; he
found, iff. my. qounty." • This return is technically' called iion est
inventus, and. when' ifls. made haveVto' determine whether
you will abandon 'on prosecute /your suit, vlf you decide :to
prosecute it ydu^have yhur ehpifie ;of two processes, either an
alias summons or & judicial attachment* ' The alias summons runs
thus, after the address to the-. Sheriff) "you are Hereby com¬
manded as heretofore you hdvebcen, to summon John Smith, &c"
as the: original.If ffhe 4 alias. is .returned yion est inventus you
may then h'aye aplftries^ the fanguage of the writ being "you
are ds^oftbn Iferetofqre you have been, &c." If
the pliiries \s returhfed nothouiid, you may have an alias plurics
and so go on until the defendAnt is found, or until'you choose to
abandon the--.effort; ,or petliaps, until the -court may consider
you trifling'with,its process, and stop you. Each ,of'these alias
and pluries writs must, be tested of the Term to which its prede¬
cessor was returned. If a term is suffered to elapse the suit
is discontinued, and'your, only alternative is to commence anew.
Instead however of taking an alias on the return of non est in¬
ventus, you are entitled To a judicial attachment, which differs
frqm the original-attachment mentioned in sections 6 and 7.
That we remember could only be obtained by a creditor against1
a debtor ; this issues inbehalf of any plaintiff although he may
Jhe suing for a tort. That was obtained on the creditor's affi¬
davit of the amount of his debt before a Judge or Justice ; this
issues simply on the return of non est inventus. To obtain that
the plaintiff has to give bond in double the amount of the debt ;
tills issues without any other security than what is already
given in the. prosecution bond. This sort of attachment cannot
issue however i% any county except where the defendant re¬
sides; the Sheriff si-re turn of non est inventus always implies
that the defendant, jesides in his .county, and he has been at his
residence to find him, unless he returns in addition thereto,
that he is not an inhabitant of his' county. The recital in the
judicial attachment would be in this form, " whereas a sum¬
mons issued from the Circuit €ourt of Wilson county on the
1st day. of April 1851, commanding the Sheriff of Wilson
16
oounty to summon j no. omithto appear, &c," repeating the words
of the writ, and proceeding thus, " which was delivered to the
Sheriff on the 2d day of April 1851, & was returned by him to
the present. Term of the said Court endorsed " the defendant is
not to be found in my county" W. Sfeott, Sheriff." It then
proceeds as the- original attachment, except that it is tested
and signed by the Clerk, as the summons is.
On this writ as well as on the original attachment, the Sheriff
must use all diligence to find property, and if he finds any he
must levy the attachment.on it, by seizing it if it is personal
property, or by simply endorsing the levy on the writ, if it is
land. His return is " levied on a negro man named Bob as
defendants property, 3rd April 1852, W. Scott, Sheriff." \
He cannot levy on land if he can find enough personal pro¬
perty to satisfy the attachment. If therefore he returs it
levied on land, he must return that no personal property is to
be found, or if any is found he must show what is levied on, and
then say " which not being sufficient, levied on a tract of land
&c" (describing it.j If he can find no property, but can find
a debtor to the defendant he must garnishee him, that is, give
him notice to appear at the return of the writ and answer
what he owes the defendant, and this garnishment will be a
good service of the attachment. <v
Sec. 19. Ancillary Attachment. Even where you commence
your suit by summons, you may at any time in the progress of
the suit, have an attachment against the defendant's property
if he is about removing himself or his property out of the
State, or is absconding or concealing himself or "his property.
This attachment is obtained in the same way as the original
attachment on affidavit and bond; butfit has a different object
in view; that as well as the judicial attachment which issues
on the return of non est inventus, is intended to compel the
defendant to appear and answer the suit. This however is to
secure the debt; it is ancillary to or in aid of the personal
process which has already issued, or which you are about to
issue, to secure his appearance.
Sec. 20. Replevy. If the Sheriff seizes property on any at¬
tachment the defendant may replevy it, that is, have it re-deliv-
cred to him on his giving bond and security in double the
amount of the debt, conditioned that he will pay the debt if
cast in the suit, or in double the value of the property, condi¬
tioned that he will pay the value of the property if cast' in the
suit.
17"
CHAPTER II.
PROCEEDINGS IN COURT
On the return ef Process Executed..
Sbc. 21. Declaration.. The first step for the plaintiff after
the return of the process, is the filing, of his declaration. He
ia allowed three days to file it; Wednesday therefore is the
last day allowed him: if however, he cannot file it by that day,
he may by leave otf the Court have further time; but he. mu*t.
ahow good cause for the delay by affidavit. Fifing the decla- .
ration is simply depositing it \vith the Clerk. The following
is the form of a declaration in the action of debt which you
are supposed to be prosecuting :
"STATE OF TENNESSEE, )■ Circuit Court, August
Wilson county. Term, 1851.
James Hart by William Blackstone, his Attorney, complains
of John Smith, who is in Court by summons, of a plea, that
he render unto him one thousand dollars which he owes to and
unjustly detains from him. For that the said John Smith, on
the 1st day of January, 1'850, at &c., in said county, by his cer¬
tain promissory note of that date, which is now here shown to
the Court, promised the said James Hart to pay him or his
order one thousand dollars twelve months after the date thereof,
and then and there delivered said note to the plaintiff: yet the
said defendant has never paid the sai«l sum of $1000, or any
part thereof, but refuses to do so, to the plaintiff's damage
$200. Therefore he sues. W. Blackstone, Attorney."
You will observe that this declaration consists of various parts:
1. The marginal venue." "State of Tennessee, Wilson
©ouhty," That must always be the county in which the suit
m brought.
2. The title of the Court, "Circuit Court."
3. The term of the Court, " August Term." The decla¬
ration should always be entitled of the term in which it is filed,
When time is given you to file it, so that it is actually filed be.
tween two terms it should be entitled as of the preceding term,
when it should have been regularly filed.
4. The Commencement. This consists of the names of the
parties, James Hart complains of John Smith. The christian
and surnames should both appear in full, not abreviated as j.
Hart. They should be the same aa in the writ. 2. By what
Attorney the plaintiff sues. Thin fiows'/er is not necessary,
2
18
as he subscribes his name to the declaration. 3. How the de¬
fendant is brought into Court, "who is in Court by summons"
if he were brought in by attachment you \vould say so. 4. The
form of action, as in the writ.
5. The cause of complaint, "for that &c." Showing 1.
The time when the defendant became indebted. 2. The place
or venue " in said county." This under the late reform law
will be unnecessary I presume. 3. How he became indebted
"by his promissory note." Had the note been under seal you
would have said " by his writing obligatory." 4. The date of
the note. 5. The profert, " which is now here shown to the
Court." Profert must be made of all written contracts sued
on, in order that the defendent may have an opportunity of
examining it, and admitting or denying it. 6. The amount of
the debt. 7. When it was to be paid. 8. The delivery of the
note. This may be unnecessary. 9. The breach of the con¬
tract, the defendant has not paid the debt. 10. The damages.
These must be laid large enough to cover the interest.
11. The signature of the Attorney. It is true a party has a right
to prosecute his own suit, and then his declaration would
be signed by himself.
Sec. 22. If the payee of the note has endorsed it to Jacob
Jones, the endorsee Jones may wish to sue both Smith the
maker and Hart the endorser. The declaration will be the
same as the above to the words " delivered said note to the
plaintiff" except that Jones will be plaintiff, and Smith and
Hart defendants. Then proceed as follows:
" And afterwards on the 1st day of April 1850, at &c., afore¬
said, the said James Hart endorsed and delivered the said note
to the plaintiff', which endorsement is here shown to the Court,
and afterwards on the 4th day of January 1851, the plaintiff
presented said note to the said John Smith and demanded of
him payment thereof, but he refused to pay the same, of which
the said James Hart afterwards on the day and year last
aforesaid had notice, whereby the said defendants became lia¬
ble to pay said sum of $1000, to the plaintiff, yet, although
often requested they have refused to pay the same, to the plain¬
tiff's damage $200.
W. BLACKSTONE, Attorney."
You will observe that an indorsee cannot recover against
an indorser unless he presents the note to the maker when it
becomes due, and gives notice to the indorser of his refusal
' to pay.
Declaration in Replevin. "James Hart by his Attorney
c omplains of John Smith who is in Court by summons, of'a
19
plea wherefore he took and detained his horse: for that the
said defendant on the 1st day of January 1851, at &c., in'said
county, took an iron grey horse of the plaintiff about six years
old and sixteen hands high of the value of $1000, and unjustly
detained the same until the 6th day of April 1851, to plaintiff 's
damage $200.
If the •Sheriff returns that he has summoned the defendant,
but has not found the property sued for, you may file your de¬
claration in trover or detinue, the forms of which will be found
in various books. The Law Reform act of 1851, allows the
plaintiff in trover and detinue to discard the fictions used in
the declarations in those actions, but does not require him to
do so. ,
Sec. 23. Proceedings on Attachment. When an attach¬
ment is returned levied on property* you file your declaration,
and proceed in all respects as if a summons were returned exe¬
cuted, except that if the attachment is against a non-resident
of the State, the Court stays the proceedings not less than six
nor more than twelve months, appointing a time for defendant
to appear, and giving him notice where it is practicable. If in¬
stead of being levied on property, a garnishee is summoned,
you must first examine him and he must acknowledge himself
indebted to the defendant, before you file your declaration.
Sec. 24. Steps to be taken by defendants Attorney. He
should first see that a prosecution bond has been given, that
it is such a bond as will bind the security to pay the costs, & that
the security is sufficient. If there is no bond, or it is not a good
one, he should move to dismiss the suit, which wiil be done un¬
less the plaintiff gives a good bond. If he thinks the security
insufficient, he or his client should make affidavit to that fact,
and move to dismiss the suit which will be done unless the
plaintiff justifies his security, that is, proves them to be suffi¬
cient, or gives other security. The defendants affidavit might
be in this form:
"James Hart
vs.
John Smith.
The defendant makes oath that Jacob Jones, the plaintiffs
prosecution bail, is as he believes insolvent, having no property
except what is exempt from execution.
Sworn to and subscribed in open Court, 1st August 1851.
W. Hart, Clerk. JOHN SMITH."
The security justifies, by swearing how much he is worth be¬
yond the amount of his debts and of his property exempt from
execution. As the security may not be in Court, and the plain-
20$
tjfF'f friends may be absent, the Court will allow him time to*
justify his security, or to give other security, or to give a good
bond. A rule, tliat is, an order is made on him to give* or jus- -
tify Ifjs security by a,certain time, or his suitwill.be dismissed.
Sec. 25. The defendant may also have a rule or order on-,
the plaintiff's Attorney, to show his authority for prosecuting^
the suit. This does not require an affidavit, if made at the
first term ; hut if made at a subsequent term, it must be-on affi¬
davit of the defendant or his Attorney or agent, showing some
g<*od reason for believing, that. he has no authority. On this
rule the Attorney must show that he, is employed by the.plain- -
tiif or the suit will be dismissed.
Sec. 26. He should examine the writ carefully, and eee,-
that it is eign.ed.by the Clerk, has the other requisites of a valid ,
writ, the names of the parties, the form of action, when, it
issued and was executed, whether fi.ve days before Court, or
on the Sunday and so forth. For any defects which make the .
writ void, he may move to dismiss the suit.
He should next examine the. declaration and see whether it.
corresponds with the writ in the names of iKe parties, the form
of action and the amountmlaimed; whether the,cause of action
accrued before the writ issued, and whether a good cause of
actjon is.-set forth, &.if. a note or other w ritten contract is sued
on whether it is correctly described...
Sec. 27. If the plaintiff has not filed, his declaration in.
ti ne, he may be nonsuited or non-prossed. The proper time to
sio this is on the calling pf the roll on the morning of the fourth
day of the Term. Every morning the Clerk calls the list or
roll of Attorneys, that they may make such motions as they
may think necessary in their cases. When your name.is call-
« I, you move the Court to non-suit the plaintiff for want of a
declaration.. You .then direct the Sheriff to call James Hart
to come into Court and prosecute his suit against.. John Smith
or he will be non-suited. To prosecute a suit is to take all
the steps which are necessary to carry it on : the first of these
after the return of the writ is the filing of a declaration; failing
to lib; it therefore is failing to prosecute the suit. The conse¬
quence of a non-suit is, that the suit is at an end and the plain¬
tiff has the costs to pay, .
Sic. 28. Entry of the non-suit. Whatever the Court does
in a suit is to be entered by the Clerk on the minutesthat is, on
his record book. The non-suit is entered thus : '
"James Hart, i
vs. > Debt.
John Smith. )
Came the defendant by his Attorney, and the plaintiff being
21
Solemnly called to come into Court and prosecute his suitr
" Came not- It is therefore considered by the Court that the de¬
fendant go hence and recover of the plaintiff the costs of thi*
suit."
This entry consists of several parts:
: 1. The names of theparties in full, unabreviated.
2. The action. This and theuameswill show in what ease
the non-suit was taken.
*3. The appearance of the defendant, "came the defendant
-by his Attorney." When any action is taken by the Court
that requires the appearance • of ffioth parties, the entry must
show that both appeared. But when one party takes action
• against the other for not appearing and taking the steps ne¬
cessary to 'bring the suit-to an end, then the entry shows the
appearance of one and the default of the other, as in this
**ease.
4. A recital of wh&t was done: the defendant called the
plaintiff to come into Court and-prosecute his suit; his coming
would have done no good unless he hadprosecuted his suitby
filing his declaration.
5. The judgment, " It is therefore considered, &c." This is
:the legal consequence of the'facts recited. An entry must al¬
ways recite facts enough to warrant the .judgment that follows.
The judgment in this case is that he " go hence" that is, he is
discharged from attending any further to the plaintiff's com¬
plaint. Tie recovers the Whole costs 6f the suit, not the costs
alone of his defence, but the whole costs of the suit, not for him¬
self, but for the officers who are entitled to them.
Sec. 29. Setting aside the non-suit. At any time during
the same term the plaintiff may come in and move the Court to
set aside the non-suit, re-instate the suit, and permit him to file
his declaration. But to do this he must make affidavit show¬
ing some good reason why he failed to file his declaration in
time. If he does not do this, he may commence his suit again.
So if he voluntarily comes and dismisses his suit himself, which
is called' a retraxit, he may commence anew suit. Nothing but
the decision of the case On its merits will bar anew suit.
Sec. 30. Confession of JudgnteM. The defendant may if
he chooses confess the facts stated in the declaration, and if he
atops at that, judgmentris at once rendered against him thus :
" Came the plaintiff by his Attorney and also the defendant in
proper person, (or by Edward Coke his Attofney,) who says he
has nothing to allege in bar of the plaintiff's action. It is there¬
fore considered'by the Court that the plaintiff recover of the
defendant his debt of $1000, and $35, damages for the deten-
•■tion thereof, and also the costs of suit.
2£
Where a man is indebted to another by note, bond, covenant,
or bill of exchange, or account settled and signed by the par ies,
he may come into Court at the request of the creditor, without
any process or suit and confess judgment. _
Sec. 31. Demurrer. If admitting all the facts stated m e
plaintiff's declaration, the defendant thinks he has no cause of
action he may demur. The declaration must always show
facts enough to entitle the plaintiff to recover if he can prove
them as alleged. If he does not, it is a defect in substance and
liable to a general demurrer, which is as follows :
"James Hart, )
vs. > Circuit Court, August Term, 1851.
John Smith. )
And the defendant, by his Attorney , comes and says the mat¬
ters alledged in the plaintiff's declaration are not sufficient in •
law to maintain his aforesaid action and the defendant is not
bound to answer the same.
E. COKE, Attorney."
To this the plaintiff files a, joinder in demurrer as follows:
" And the plaintiff avers that his declaration is sufficient in
law. W. BLACKSTONE, Attorney."
This makes an issue in law, which is tobe tried by the Court
at the same term at which it is formed. The demurring coun¬
sel opens the argument by showing the reasons why he impugns
the sufficiency of the declaration. If the Judge overrules the
demurrer, the plaintiff recovers judgment, which is either final
or interlocutory. In an action of debt on a note or other wri¬
ting which shows the amount due, or on a stated account, the
judgment is final; as there is nothing to do in such cases to as¬
certain the amount of the judgment, but to calculate the inter¬
est, there is no use for any further proceedings. But if it requires
evidence to show what amount is due, then the judgment is
interlocutory: the plaintiff recovers his damages, but it must
be submitted to a jury at the next term to ascertain the amount
he is entitled to.
Entry of final judgment on overruling demurrer. "Came
the parties, when the demurrer to the declaration being argued
the Court is of opinion that the law is for the plaintiff. It is
therefore considered by the Qourt, that the plaintiff recover of
the defendant $1000, the debt mentioned in the declaration,
and $30, damages for the detention thereof, and also the costs
of suit."
Interlocutory judgment on overruling demurrer, same to "de-
Sf
'"V , r
fendant," then proceed "his damages sustained by reason of
the breach of covenant (or promises, or by reason of the'premi¬
ses) alleged in his declaration, to be ascertained by a jury at
the next. Term of this, Court, and also the costs of suit."
Entry sustaining the demurrer. " The Court is of opin¬
ion that the law is for the defendant. It is therefore consider¬
ed by the Court that the defendant go hence and recover of the
plaintiff the costs of this suit." ,
Sac. 32. Special demurrer. This is the same in form as
the general demurrer, except that it gpes on, and specifies the
reasons why the declaration is insufficient. The difference in
effect is that on a general demurrer the defendant can have no
advantage of mere defects of form, such as the omission to
state the time or place when the facts occurred, or to make
profert and many other things; he mffst specially except to
these formal defects or else he cannot take advantage of them.
The late reform law which is to take effect 1st September
1852; abolishes the special demurrer, so that after that time if
pleading is substantially good, however informal, no exception
to it will be allowed.
Sec. 33. When the defendants demurrer is overruled, the
Court may still allow him to file a plea, if he will show by affi¬
davit that he has a good defence: if he makes oath for in¬
stance that he has paid the debt sued for. When he asks for
le ave to plead he must have his plea ready, & sworn to : the
Court will allow him to file it on such terms, that is, on the pay¬
ment of so much of the costs as the Court thinks it reasonable
he should pay. Judgment is rendered against him for such
costs, and that forever clears the plaintiff of those costs, even if
he lose the suit.
Sec. 34. Amendment. If upon demurrer filed and deter-
, mined or at any other time before or afterwards, at any stage
in the progress of the suit, the plaintiff discovers any defect in
his declaration, writ or any other proceeding, he may apply to
the Court for leave to amend it. He may. have omitted the
amount of his debt or damages in the writ, or declaration ; he
may have stated it too low ; he may have mis-described the
note in his declaration; any defect in fine, whether of form or
substance may be amended. Prior to the Reform Law he could
not change the nature of the action, or introduce new parties,
by amendment. If the writ was in debt, he could not change
it to covenant: if your note was payable to James Hart and
Jacob Jones, and Hart alone had sued, you could not amend by
making Jones a plaintiff. But that is allowed by that act
when it takes effect. So if John Smith and Daniel Rose were
makers of the note, and you have sued Smith alone, you
.24
"might make Rose a defendant by amendment, but in that eaafc
'you would have to issue a summons returnable to next Court
to bring him in. In all these cases of amendment however,
; you must make affidavit to the fact which you wish to introduce
into your writ or pleadings, unless it sufficiently appears \tith-
• out affidavit. Suppose you have brought an action of debt on
a note:under seal payable in Bank notes: you may move to
. amend your wrrit or declaration, so as to change it to an.action
of covenant. You would make this affidavit:
'/James Hart
* John Smith.
The plaintiff makes oath that he< brought this action on a
covenant to pay $1000, in bank notes, and by mistake his writ
is in debt instead of covenant.
Sworn to and subscribed in open Court, 6th August 1851.
Hart, Clerk." JAMES HART.
On this affidavit the Court will allow you to file your declara¬
tion in covenant. If you make your amendments at the return
term of the writ, you are allowed to do it without paying costs
by the Reform Law ; if it a subsequent term, the Court allows
them on such terms as may seem reasonable.
Sub. 35. If the defendant sees no ground to demur h<
must plead to the declaration, that is, he must allege such
facts as show that the plaintiff has no right to recover at all,
or at least not in the present action. The law allows him
three days to plead or demur, after the three days allowed the
plaintiff to declare, Pleas are either dilatory or peremptory
Dilatory pleas state some fact that shows the plaintiff cannot
proceed in his action as at present brought. Peremptory pleas
state some fact that shows he cannot recover in any form at
anytime.
Sec. 36. Dilatory pleas are either to the jurisdiction of the
Court, or in abatement of the writ or declaration. A plea to
the jurisdiction of the Circuit Court will rarely occur; should a
ease be presented it will be apt to appear in the declaration, and
then a demurrer will lie. '
Pleas in abatement. The plaintiff may be an infant, a feme
covert, or dead; the writ may have been issued on Sunday or
within five days before the commencement of the Term, or it
may have been executed on defendant while attending a Court
muster or election, or the plaintiff or defendant may be mis-
.named, or the plaintiff may have another suit pending for th«
vs.
PLEAS.
25
^arne cause, or there may be many other causes why it shouM
'be abated.
Form of plea in abatement.
"James Hart, )
vs. > Circuit Court, Wilson oo. Aug. Term 1851.
John Smith. )
And the defendant by Edward Coke, his attorney, comes
and defends the wrong and injury, when &c., and prays judg¬
ment of the plaintiff's writ, because he says, that the said writ
was issued on Sunday the— day of —; 1851, without any affi¬
davit being made by the plaintiff, his agent or attorney, that the
defendant was removing or about to remove himself or his
property beyond the jurisdiction of this Court, and this he is
ready to verify: wherefore he prays judgment of said writ, and
that the same may be quashed.
E. COKE, Attorney."
John Smith makes oath that the foregoing plea is true in
substance and fact, 6th August 1851.
J. SMITH.
W. Hart, Clerk.
To a plea in abatement the plaintiff may demur, if he thinks
it not sufficient to abate the suit, or he may reply, if his de¬
murrer is sustained, the judgment against the defendant is re¬
spondeat ouster, that he answer over, that is, put in a plea in
bar. If however there is a reply denying the truth of the plea,
and it is found against the defendant, the plaintiff recovers his
debtand damages. All pleas in abatement have to be sworn
to, unless the fact pleqded appears on the record.
R®fEMPTOKY PLEAS.
Sbc. 37. These are called pleas- in defence, because they
set up a defence to; the action: pleas to the merits, because
they deny the merits of the plaintiffs action : in bar, because
they state facts that if true effectually bar the demand. They
■are of ttvo kinds. First, pleas of traverse, which deny the
whole or some essential part of the declaration. Secondly,
pleas of confession and avoidance which confess the facta
stated in the declaration, but allege some fact which avoids
•the legal effect of them. These are called special pleas, because
•they specify certain facts which bar the plaintiff's action.
Sbc. 38. General issue. In every action there is a plea of
itraverse which is called the general issue, being a general de¬
dal of the declaration. Thus, in the action of debt, on :simp?e
2(;
contract, which is the sort you have brought, the general issue
is called nil debet, and is as follows :
"James Hart, )
vs. > Circuit Court, Wilson co. April Term 1851.
John Smith. )
And the defendant by his attorney, comes (and defends the
wrong and injury, when &c.,) & says,that he does not owe the
said sum of money above demanded, or any part thereof, in
manner and form as the plaintiff hath above complained, and
of this he puts himself upon the country.
E. COKE, Attorney.
This putting himself on the country, is called tendering an
issue. This issue the plaintiff accepts by what is called,a simi¬
liter, which the plaintiff writes immediately under the plea, on
the same paper as follows:
And the plaintiff doth the like.
W. BLACKSTOjNE, Attorney.,
This is kn issue, the end of pleading. Whenever a fact is
affirmed on one side and denied on the other, the parties are at
issue. All that remains is to try the issue.
Nil debet was not formerly a good plea to an action of debt
on a specialty; because the law would not allow a man to dis¬
pute the debt, if the bond were genuine: a seal conclusively
imported a valuable consideration. But since the act of 1850
allows the same defences to a specialty as to a simple contract,
nil debet, it is presumed, is a good plea to debt on a bond.
Non est factum, is the general issue in actions on sealed in¬
struments. It is the same as the above to "says," then pro¬
ceeds "that the said writing obligatory (or covenant, &c.) is not
his deed." All general issues are the same as the above to
"says," and all conclude to the country as above. *
Non detinct. This is the general issue in detinue. It run3
thus, "that he does not detain the goods and chattels in the
declaration specified or any part thereof, in manner and form
as the plaintiff hath above complained." This manner and
form clause is the same in all traverses.
Non assumpsit, is the general issue in assumpsit, and is thus:
" that he did not undertake or promise in manner &c."
Not guilty is the general issue in trespass—"that he is not
guilty of the said trespass above laid to his charge, or any part
thereof, in manner &c."
Not guilty in trespass on the case. " That he is not guilty
of the premises abpve laid to his charge in manner &c." In
replevin it would be the same as in case.
Sec. 39. Special pleas. These commence just as the gen¬
eral issue. The.defendant "comes & defends the wrong, &c."
They then have an actio non clause, thus, " and says the plain¬
tiff ought not to have and maintain his aforesaid action against
him, because he shys" and then proceeds to state the matter
of defence; thus, suppose his defence is, that he paid the debt
after it became due, he will proceed after, "says," that after
said promisory note became,due, and bbfore the commence¬
ment of this siiit? to-wit: on the — day of — 1850, he fully
paid to the plaintiff the said sum of $1,000, and all the interest
due thereon. 'And1 this he is ready to verify. * Wherefore he
prays judgment if the plaintiff ought to have or maintain his
aforesaid action against him."
It is presumed that undpr the late Reform Law abolishing
special demurrers, the defence, the actio non, and the prayer
of judgment will be disused; they are senseless formula. All
special pleas conclude with a verification, " and this he is ready
to verify" to prove or make true.
REPLICATION.
Sec. 40. When the defendant pleads by way of confession
and avoidance, the plaintiff must reply either by way of tra¬
verse or confession and avoidance. If he replies specially the
defendant may rejoin specially or by traverse ; and to a special
rejoinder the plaintiff may surrejoin. But the pleading usually
stops at a general replication, which always concludes by ten¬
dering an issue. The following is the form of a replication
traversing the above plea of payment.
"James Hart
vs.
John Smith.
And the plaintiff by his attorney, says that the defendant
did not pay unto the plaintiff the said sum of $1000, & all the
interest due thereon, or any part thereof, in manner and form
as the defendant hath above pleaded. And this the plaintiff
prays may be inquired of by the country.
BLACKSTONE, Attorney.
And the defendant doth the like.
COKE, Attorney.
Thus we have an issue on the special plea of payment.
Sfc. 41. The defendant may plead as many pleas in bar aa
he chooses, however inconsistent they may be with one an¬
other. He may plead a plea of traverse, and of confession;
he may plead nil debet and payment, to an action of debt; not
guilty, and the statute of limitations to an action of trespass;
-28
;and as many other different pleas as he may think .proper.,
But there can be but one replication to a plea : nor can the
; defendant both plead and demur, or plead two. pleas in abate-
ment. . ... . . ,
Sec. 42. Limitations. There are certain times withm which
actions must be brought, or they are forever barred. These
■ times are prescribed by statutes, and if the plaintiff has not
commenced his action within the prescribed time, the defen¬
dant may plead the statute of limitations, which is a .plea of
confession and avoidance. The statute begins to run whenever
the plaintiff has-a right to sue. Actions of assumpsit, trespass
affecting property, case, trover, detinue and replevin, must be
commenced within three years after the cause of action accrued;
debt on sirpple contract within six:years; assault and battery
in one year; slander in six months; ejectment in seven years.
There is no limitation to debt on a specialty, or to covenant.
If, however, the plaintiff is, at the time the cause of action
accrues, an infant, a married woman, insane, in prison, or out
of the United States, he has the times aforesaid after coming of
age, discoverture, restoration to sanity, enlargement out of
prison, or return to the United States, to bring the action, ex¬
cept in ejectment, in which he is allowed but three years; should
he die before the disability is removed, the same time-is al¬
lowed to his representative to sue.
Sec. 43. Oyer. When the plaintiff makes profert of-any
writing, as you have done of the note declared on in this care,
the defendant may crave oyer of it, and set out a copy of it in
his plea: when thus 'set out it will appear, whether the plaintiff
has truly described it in his declaration, whether there be any
conditions in it, not mentioned by the plaintiff; and if there be
a variance, he may demur, or if there be conditions, he may
plead performance of them; or he may take no further notice of
the Oyer. Oyer is prayed thu's" :
" And the said defendant by !E. Coke, his attorney, cravee
Oyer of the said promissory note, and it is read to him in the
words and figures following, to-wit: (here insert it) " and then
proceed to demur, or plead as in the above forms.
"Sec. 44. Set-off. If the defendantean make no defence to
the plaintiff's debt, he may set-off against it any debt which
the plaintiff owesvhim. He may either plead the set-off speci¬
ally or he may plead the general issue, and. give the plaintiff
wiitten notice that he will introduce the set-off in evidence on
the trial. If defendant's set-off is alarger. debt than the plain¬
tiff's, so much of it as is equal to the'plaintiff's is set-off, and
for the balance, the defendant will have to bring another suit-
lie cannot recover a judgment for it against the plaintiff iu this
29
suit. . If the suit is before'a justice; of the Peacey or is" in -tltf**
Gircuit Court by appeal from a Justice, the defendant may re- -
coyer of the plaintiff the balance of his set-off debt, if the
amount be within a Justice's jurisdiction.
Sec. .44. Judgment by default'. If the defendant fails' to<plJhd i
or demur within the time allowed him, the course forthephm-
tiff is, to take judgment by default,.which he does, by ordering
the Sheriff to call the.defendant to come into Court and defend
the suit, pr judgment by default vvilT be taken against him.
This judgment is finaL or interlocutoiy, as in. the-case of over¬
ruling a demurrer. The entry too is the same except the reci¬
tal. It is as follows :
" Came the plaintiff by his attorney^ and the defendant be¬
ing solemnly called to come into Court and defend this suit, ,
came not. It is therefore considered by the Court that the
plaintiff recover of the defendant Iris debt of $1,D0Q, and $35,
the interest-thereon,, and also the costs of. suit."
If it be an.interlocutory judgment, it would'be "that the
plaintiff recover of the defendant his damages, to be ascer¬
tained by a jury at the next Term.of this Court."
Judgment by default may in like manner be taken-against
the defendant, if he fails" to rejoin to the plaintiff's replication. .
Sec. .45. . The judgment by default may be set aside any
time during the term at which it is taken, or at the next term,
by the defendant's showing dry affidavit a good excuse for not
having pleaded, and that' he has a good defence to the action,
and exhibiting that defence to the Court in a plea sworn, to.
Sec. 46.- If the defendant has duly pleaded, and the plain¬
tiff fails to reply, the defendant, may take a judgment of non
pros against him, just as in the case of his failing to file his
declaration..
Sec. 47. Abatement and revivor. . 1. If the plaintiff dies du¬
ring the progress-of the. suit, his attorney or the defendant,
may suggest and prove his death to the Court, at the next term,
and on motion,, his administrator or executor may be made
plaintiff in his stead, or if it is an action of ejectment for an
estate of inheritance, his heir may be made plaintiff in his
stead. If, however, the heir, executor or administrator doet
not revive it during the next term after the suggestion of his
death, the defendant may, on motion, abate the suit. 2. If the
defendant dies, the plaintiff may suggest and prove-his death, .
and revive the suit against his administrator or executor, or
against his heir if it be ejectment; and he must give notice to
the administrator, executor or guardian, by scire facias, that he.
will at the next term after such.suggestion move to revive the
suit aghinst him. 3. If there be several plaintiffs, not part-
30
ners, and one of them, dies, his representative, may, on motion,
revive the suit in his name and prosecute it jointly with the
surviving plaintiff. But if he has no representative, or if he
has one and he fails to revive the suit before it is called for
trial, the defendant may elect to go to trial with the surviving
plaintiff, 01* continue the case two terms, and then if it is not
revived by the representative, the defendant may on motion
abate the suit. 4. If there are several defendants and one
dies, and has a representative, that is, an administrator or ex¬
ecutor appointed, before the case is called for trial, the plain¬
tiff must revive the suit against him; but if there be no repre¬
sentative, the plaintiff may on proof of that fact, proceed to
trial with the surviving defendant.
If a single woman is plaintiff and marries, the husband
may have himself made plaintiff with her. So if a single wo¬
man is defendant and marries, her husband may be made de¬
fendant by scire facias.
All actions may be thus revived, by and against the repre¬
sentatives of deceased parties, except actions for injuries to the
person or reputation, such as assault and battery, slander,
malicious prosecution and assumpsit for breach of marriage
contract. When the partibs to one of these dies before final
judgment, the action abates.
Seo. 48. Rule to plead and try. If a defendant is not ready
to plead within the time allowed him, and wishes to plead spe¬
cially, he may on. application to the Court obtain time to do so
either until some day during the term, or the vacation, or until the
next term. When time is given until the next term, it will post¬
pone the trial one term, unless it is provided that it shall not de¬
lay the trial, and'then the rule is to plead and try at the same
term. So the parties may by consent put the case under a
rule to plead and try at the next term of the Court. The law
is, that a case does not stand for trial until the next term after
issue joined. If pleadings are filed in the vacation they are
always entitled as of the preceding term, and the issue formed
stands for trial at the next term; but if the pleadings are not
made up until the next term, the issue will not stand for trial
until the next term thereafter. The parties therefore frequent¬
ly agree to put the case under a rule to plead and try at the
next term, and then the pleadings will be filed and the cause
tried at tire same term: their agreement dispenses with the re¬
gular rules of practice.
Sec. 49. Reference to arbitrators. Parties sometimes agree
to refer a case to the decision of arbitrators by a rule of Court
agreeing that their award shall be made the judgment of the
* * mrt. The arbitrators report their decision under their hands
31
and seals, and then the attorney of one of the parties moves to
enter it on the record as the judgment of the Court. By an
act of 1852, parties may, by written agreement, submit any
matter of dispute between them, to arbitrators, although there
is no law suit about it, and agree that the reference shall be
made a rule of Court and that the award shall be made the
judgment of the Court; and by consent of the parties or proof
of the agreement, the Court may enter the rule of record, and
make the award when returned, the judgment of the Court.
Sec., 50. Agreed case. • By the same statute the parties to
any dispute may'spbmit to the Court a statement of the facts,
accompanied with an affidavit, that it is a real controversy
and in good faith submitted for decision. "Whereupon the
Court shall hear and determine it, and/render judgment as if it
were a suit regularly commenced and prosecuted to trial. By
these two modes, which are new in our practice, remedies aie
furnished for the settlement of controversies, as simple and
easy as partieshould desire.
Sec. 51. Devisavit vel non. Wills are to be proved in the
County Court of the County in which the testator resided at the
time of his death. When the heirs of the deceased or any of
them wish to contest the will, they must appear in the County
Court when it is offered for probate by the executor, and con¬
test it, that is, deny that it is the will of the deceased, upon
which they are to give bond and security to the executor in the
sum of $500, conditioned to be void if they shall successfully
contest the will, or in case of failure to pay all such costs as
may accrue in the suit. Whereupon the Court sends up to
the Circuit Court the original will and a transcript of the re¬
cord, showing the offer of the will for probate and of the heirs
to contest it, and of their entering into bond and security, and
also of the bond itself. In the Circuit Court it is placed on the
docket, the executor being plaintiff and the contestants defen¬
dants ; and an issue is made up under the direction of the
Court, which is regularly triable at thetsame term. The plead¬
ings are very short, and in the following form :
" State of Tennessee, ) Circuit Court, August
Wilson county. ) Term, 1852.
James Hart produces here in Court a paper writing purpor¬
ting to be the last will and testament of John Den, deceased,
dated the 1st day of May 1850, and attested by John Doe
and Richard Roe, in which the said James Hart is named as
executor; and the said Hart avers that the said paper writing
is the last will and testament of the said John Den, deceased.
WM. BLACKSTONE. A +*r»~r- - - "
$2*
And John Smith.the nephew and heir at law of th* said 'Jobs*
Den, deceased, comes, and says that the said paper writing i«
not the last will and testament of the said John Den, deceased, .
and of this he puts himself on .the country.
EDWARD COKE, Attorney,
And the plaintiff doth the like, Blaekstone, attorney.
This is called an issue of devisavit vel non<. It is submitted to-
a jury, and the executor, being plaintiff; has to prove the will.
by all the subscribing witnesses, if they can be had; and if not,'be
must prove their hand writing. If there be no subscribing wit¬
nesses, he must prove it by such other testimony as he-may be
able to adduce. The defendant then introduces-such •.evidence
as he may have, to impeach the validity of the will.
The verdict of the jury and the judgment of the Court is - tb •
be certified-to the County Court, so that they may proceed to 1
appoint an administrator if the decision is against the will, or
to qualify the executor if it is established; and the-original will,.
if established, is to be sent down to the County Court. .
Sometimes an heir wishes to contest a; will long after it has
been proved. In that case his proper course is to petition- the
County Court to set aside the probate for reasons alleged in
the petition, and upon notice to the executor and legatees, to
come in and sustain the probate, the County Court will certify
the proceedings to the Circuit Court, when the same course
will be pursued as if the contest had arisen when_the will was >
first offered for probate.
CHAPTER III.
AL.
/■+■ ?■
Sec. 52.. In the regular course of a law suit, the next thing
you have to do after issue joined, is to prepare for trial. This
preparation consists in procuring such evidence as you may
think necessary to sustain your side of the question. The evi¬
dence will consist either of the testimony of witnesses or writ¬
ten documents. The former is obtained either by enforcing
the attendance of the witnesses at Court, or by taking their de¬
positions before some commissioner, who returns it to Court to ■
be read in the case.
Sec. 53. Personal attendance of mtnesses. You have a ri°-ht
to demand of the Clerk a, Subpoena for any witness in the State
directed to the Sheriff of the County' where you suppose ha •
way be found. The summons must, like the original process
3!T
issue' antll be- served, at l/ast five' days before' tie cdmrnence-f
ment of thd Term to, which it is returnable; during the trial;
term however a subpoena instanter returnableinstantly "before
the Circuit Court now sitting " may issue for witnesses. .When,
you want the witness to produce any docuhient in, Evidence
which he has in his custody, yoU issue hgujbpoena' Duces, tecum^
in which' the Sheriff is commanded not only to summon, the
witness to appear himself and, give evidence, but to bring with*
him the document which is described in thh subpoena..
Sec. 54., The witness is -bound to ffttbnd not only at the*
Term to which he is Summoned, but "at .every subsequent term
until the cause is determined* or mnlil he „ is-discharged by -til#
party who has him summoned. If die does net attend, he for¬
feits $125, which you may recover as follows;" When,the suit;
is called,,or even before1, you.may direct the Sheriff Jlq hall the
witness "to come into. Court and give evidence in behalf of the
f plantiff in the case of James11 Hart against John Smith, or he
will forfeit according to. Subpoena.'1 This+subptena for- a wit¬
ness- is precisely the same as the original1 summons to the words*
"4-ugust next," it then proceeds "to give evidence in behalf of
the plaintiff in; the suit of James llart against John Smith;
under the penalty of $12.5,.in Case of failure." The conclusion
is the same.. It is the penalty of $125, that you recover against
him when he fails to come at the call of the Sheriff.' The judg¬
ment for the penalty is interlocutory,, called a judgment nisi#,
and is in, the following form: 1 ^ " * '
"James Hart ) * ♦
X9 * > Forfeiture <
Dan Nixon J, * *"i h , ¥
* r I ' V ' '
Came the plaintiff' by his" attfffheygand it appearing- to the>
Court that the defendant < ha's .been duly summoned to appear
at the prfesent term of this court to give evidence jn behalf of1
the plaintiff in a suit pendingin this^court, wherein the said
James Hart is plaintiff and Jo„hn Smith "is defendant; and the
said Dan Nixon being solemnly called to come into court and
give evidence in behalf of the plaintiff in said suit, came not.
it is therefore considered by the court that the said James Hart
recover of the said DanNixori $125, the penalty mentioned in
the subpoena, unless he show good reason for his non-attend¬
ance on due notice of this judgment* and on motion of the
plaintiff a Scire Facias is allowed him.
Sac. 55,. Scire Facias. On this judgment a Scire Fac'as is¬
sues against the witness, which retires the judgment nisi, oul
commands the Sheriff to give notice to the witness to appear
at J.io next term and-shew eapae it any he has, why iL-ff udg ■
y
34
ment should not be rendered absolute! If the Sheriff-returns
this writ executed, the witness may appear and plead to the
Scire Facias any excuser he may have for failing to attend, such
as sickness or otfier inability; to which the plaintiff may reply
or demur, as in case of plea to a deo|aration. If an issue of
fact is forme^t stands for trial at the next term. If the de¬
fendant fails appear, judgment final by default may be
taken. If the SheruF returns the Scire Facias, that the de¬
fendant is not found} an alias issues; if thatds returned, not
found, thejudgmenLffihy be made absolute or final, as if the
writ had been duly executed and the defendant had failed to
appear; These returns of nof found, on the writ of Scire Fa¬
cias, dfe called nihils, and two nihils, are equivalent to actual
service of the writ.
Sec. 56. AttachmenPand Damages. The witness is not only
liable to this forfeiturebut also to an action on the case for
whatever damage/the plaintiff rpay sustain by retason of his
failure to attend: -But §s t^e^ntSes \ may be insolvent and
care nothing apput;pecuniaryuiabilities, and as the party may
very much nj^dmii testimony; he may have an attachment to
bring him in fat)4" testify. To obtain this he must show by affi¬
davit that the witness is willfully absent. On this showing he
moves the cbifrt for an attachment, which is a writ coipmand-
ing the Sheriff to take the body of the witness and bring him
into Court to testify. M' there appears to be time to bring him
in during the present term, before the trial, it is made returnable
instanter; otherwise the case is continued and the attachment
returned to the next term. When the witness is taken on the
attachment, he may give bail, for his appearance.
Sec. 57. Deposition. The next rhode of obtaining the tes¬
timony of witnesses is by depositions. This may be done in
the following cases: 1; Where the witness lives out of the
State. 2. Where he lives out of the county in which the cause
stands for trial. 3. Where he may he about to leave the state,
so as to be absent when the cause will be tried. 4. Where he
is incapable of attending court by reason of age, infirmity or
other cause. 5. Where he is Governor, Secretary or Treasu¬
rer of the State, Register of the Land Office, Judge of the Su¬
preme or Circuit Court, Clerk of a Court, Member of Congress
or the Legislature, Notary Public, Attorney at Law, Jailor of
another county or practicing physician.
There are two modes of obtaining depositions.
Sec. 58. 1. By obtaining an order of the court or Clerk of
the court in which the cause is pending; which is obtained by
making affidavit to the materiality of the witness and that ho
lives in another state or county, or is one wv-
35
betaken. Whereupon a commission called a dedimus potcsta-
tem issues to some commissioner* usually a Justice of the Peace,
to take the deposition.
2. It is provided by an act of 1852, that no affidavit or cr¬
uder shall be necessary, but a party without application to the
court or clerk, and without any commission of course, may take
depositions dm all cases, in which the law allows them to be
•taken.
Sec. 59. In either case notice must be given by the party
taking the deposition, to the adverse party, of the time and
place of taking it. When an order is made by the clerk or
•court, the number of days notice is, prescribed in the order
or commission. But vfJ^n taken under the act of 1852 with¬
out an order, the number of days as prescribed by law wjll
have to be given. In the first, third and fourth cases mention¬
ed above the law prescribes no time; but in the other cases the
Act of 1817, ch. 189, provides that if the witness lives 50 miles
from the adverse party he muskreceive the notice five days
before the day appointed forT|ga®mg'it; if between 50 and 100
miles, ten days; if from 100 to 150 ifiiles -15 days; if from 150
to 250 miles 20; if over 280 miles*30 days. If the distance
were such that 30 days would->ri6lhe sufficient, the order would
have to be made by the court:—&o if it were the case of a wit¬
ness living out of the State, or about to leave, or unable to at¬
tend court. It may be however that the courts will determine
in these Jatter oases, that notices giving the number of days
prescribed in the Act of 1817, will be sufficient by fair analogy.
The notice is in the following forin:
"Mr John Smith: On the 1st day of May next, at the house
of Leroy Cage Esq. in Smith county Tennessee, I will take the
deposition of Dan Nixon, to be read as evidence in the suit
pending in the Circuit court at Lebanon, wherein I am plaintiff
and you defendant; This the 10th of April 1851.
JAMES HART."
You must write "an exact copy of this notice and deliver
both to the Sheriff or any constable, who must leave one with
the defendant the requisite number of days, and return the
other either to the magistrate who takes the deposition or to
the court, indorsed; "Delivered a copy to John Smith, 11 April
1851. W. Scott Sh'ff." As this notice is not process, it may be
served by any private individual as well as the Sheriff; but in
that case, he will have to be in court as a witness with the no¬
tice to prove that he delivered a copy; whereas the return of
the fact by a Sheriff or constable, is sufficient evidence of it.
Sec;.. SOX The object of the notice, ia to give; th>-defendan1fr
an opportunity to attend and cross-examine the witnesses.. If*
he does attend before the magistrate and cross-examine, it is.
not necessary to prove that he had .notice..
61. The p arty who takes depositions without, an .order-
according to the act of 1852, will have to be prepared to prove
on the trial, that the witness was one. whose deposition might •
be legally taken, Where he lias taken.it under ah. order offi
court or of., the clerk, he has already shown this fact, as .we have
before seen, by his own .affidavit But where he takes it simply;
on giving notice to tk© adverse party, he should.^how when he ■
offers the deposition in evidence, that the deponent wras a non-J
resident, a Judge^leaVing the State, or in some, other condition i
that warranted the taking'of. the deposition. It is presumed,
however, that as the affidavit would have been sufficient evi- -
dence to warrant an -order to take it, it is sufficient* to "warrant
the admission of it in evidence.. In many cases a deposition.
i3 taken de bene essc^hy' order of court or. of the el'erk; which^
means that they are taken upoma-state of: facts which at' pre¬
sent warrants it,, and if they* continue to exist at the .time of.
trial, ,the deposition is ta .be read; but if they have ceased to
exist, so that you can and ought to have the personal atten¬
dance of the witness,the deposition.cannot be read.. Thus, if*
you take a pianos deposition,because he is sick, or for other-
cause is unable to attend the trial,' you. must, have his atten¬
dance if.'the dishbility is-removed^. * *
Sec. 02. Sometimes an oVder of Court to take the deposi-
tion'designates-the time abd'place-of talcing it. The order is*
then said to operate as notice.. This, sort of order, is. made -
when a witness is in imminent danger of dying, or is unable to*
attend court, and his deposition willhe needed on.the trial du¬
ring the term of the Court at which the order is made.. It is in t
the discretion of the court, to make such order,. whenever the
justice of- the ease seems to demand it..
Sec. 63.. Witnesses-in a suit oommenced*under;the pauper'
law, may at any time apply to the court to have their deposi¬
tions taken, and be discharged. As - there is no security for¬
e-oats, it is but just that they should not be bound to attend from
day to day without any assurance that they will ever, receive-
any compensation for their loss of. time. And it should.have
been remarked in :regard to-these pauper suits at a more pro¬
per place, that at the return.of the Writ, the defendant may,
move to dismiss the suit on tw,o, grounds; I,. That the plain-'
tills allegation cf poverty is probably untrue, or 2.. That his
cause aetffip is f"h olous or malicious.. IJe must shew these
ground* cr one of them, by the affidavits of one crin»:e dism-
%erested persons. T)n these"affidavits the Court will;make a
rule on the plaintiff to shew causes Whyi his suit should not be
dismissed. He will be allowed to bring in the affidavits of oili-,
-er disinterested persons to rebut the affidavits introduced by
the defendant; and the court will dismiss the suit or not, accor¬
ding to the truth of the case as it may-appear from these affi¬
davits and counter-affidavits.
Sec. 64. When a ,party wishes to ^preserve the testimony of
any witness concerning a matter which may be the subject of
' a suit, he may on petition to a Circuit Judge or Chancellor and
«uch notice to the adverse party as the Judge may prescribe,
take his deposition, to be returned to the Register of the county
in which the petitioner resides; to be by him registered; and
copies thereof may be read as. evidence in .any future suit, be¬
tween the parties. 1850 eh.-&4r~
Sec. 65. The magistrate, wlio takes a deposition should ac¬
company it with a certificate of the time and place of taking
it, what parties were present, who wrote it, that the deponent
was duly sworn/that he is not related to either of the parties
or interested in the suit, and that it has not been out of his pos¬
session, nor altered since it was (Subscribed by the deponent.
He should then inclose it under seal, and write his name across
the seals, that it may be seen 'it has not been opened since it
left his hands; then deposit it in the Post Office directedUo the
Clerk; or deliver it to some person who is to deliver it to the
';Clerk, who should endorse on it of whom he received it. The
Clerk may open it at the instance of either party or his attor¬
ney, for the inspection of the parties. 1844 ch. 158.
Sec. "66. Documentary evidence. This will consist either of pub¬
lic records orprivate writings. If it is the record of the same court
in which the suit is to be tried you will make the Clerk produce
the original. If it is a record of a different court you must have
a copy of the whole record made out and certified'bygthe Clerk
of the Court, under the seal of the court if there be any seal;
and if there be none he must certify that fact. By the whole re¬
cord, is meant the prosecution bond, writ and return on it, the
pleadings, verdict, judgment and execution. The Subpoenas
for witnesses are no part of the record, unless the fact you
want to prove involves the fact of the existence of the
Subpoena, If it is a record from the Court of another State,
you must not only have the Clerk's certificate, but also the cer¬
tificate of the Judge of the Court that he is Clerk, and that his
certificate is in due form. If you want the judgment and other
acts of a Justice of the Peace, your best way is to summon
him, or whatever other Justice lias the custody of his papers,
jf be 'has resigned, to come as a witness and bring with him the
38
papers. If however, you can get the papers, any witness may
prove his handwriting. If you wish to prove registered deeds
you must see to it that your client has the original deed duly
certified by the Register, or if the original does not properly
belong to him or he has lost it, that he has a copy duly certified
by the Register. If it is a Will you have to produce, it will
have to be a copy duly certified by the Clerk of the County
Court. An officer's bond, or administrators and guardians'
bond must be certified by the officer who has the taking or keep¬
ing of them, usually the County court Clerk; and he certifies
a copy of them. The copy of any office paper is certified by
the officer, and that makes it evidence^
Sec. 67. You must be prepared with witnesses to prove
any private document which you may want to produce in evi¬
dence. You do not have to prove the writing you sue upon
and which you have made profert of in your declaration, unless
the defendant has denied it by the plea of non est factum. If
he has not so denied it, it is admitted. But all other papers
have to be proved before they are admitted in evidenee. If you
have an unregistered deed, a receipt, letter, note or any other
paper, you must have witnesses summoned to prove its genu¬
ineness; and they must always be the subscribing witnesses, if
there be any, and they can be reachod by a Subpoena. But if
there be no subscribing witnesses, you may prove the hand¬
writing of the party, and you must have witnesses summoned
for that purpose who are acquainted with his handwriting. If
the subscribing witnesses are dead, or gone beyond the State,
or cannot be found on a Subpoena issued, you must take care
and have witnesses who can prove the handwriting of the
subscribing witnesses. If the defendant has possession of the
writing which you want to introduce in evidence, you must
give him timely notice in writing, to produce it on the trial,
and you must be prepared to prove it, and to prove its contents
if he fails to produce it.
Sec. 68. If a writing is lost you must be prepared to prove
that it once existed and that search has been made for it where
it ought to have been kept and found, and the affidavit of your
client that it is lost, in order to admit evidence of its contents.. In
regard to lost instruments which are the foundation of your
suit, you are to state in the declaration as a reason for not
making profert of the writing, that it is lost; and you must file
with the declaration an affidavit stating that it once existed,
that it is lost and that you have not transferred it. This will
be sufficient evidence of the facts stated in the affidavit, unless
the defendant, by the plea of non est factum on oath, denies
the execution of any such instrument. If he does not do this,
#9
»the instrument is admitted, and you have no proof to> make of
it; but if he so denies it, you must prove that tho instrument
once existed, that it was executed by defendant, and that pro¬
per search has been made for it. Your own affidavit of its loss
nvill be sufficient. If you get a judgment on a lost instrument,
you, will have to give a bond of indemnity to the. defendant,; to
secure him against any - liability to any body else, who may
chance to have acquired the possession of it, under such cir¬
cumstances as will give him a right to recover it of the defen¬
dant. By the act of 1852 however the plaintiff is not botind
to give this indemnity, if the instrument has been'due over
two years; and in that case the defendant is not liable to* be
sued on it by anybody else. '
Sec. 69. Disctivcry. It will sometimes happen that a ma¬
terial fact is known only to your adversary; the-defendant, for
instance, may have paid the debt for which he is sued, and no¬
body knows it but the plaintiff. In such cases you may make
your adversary give evidence against himself, by presenting a
petition to the Judge, stating the fact, and that you. cannot
prove it by any witness, and stating such questions as you
wish the party to answer^ fffiis petition must "be sworn to.
The Judge wiil thereupon grant an order on the party to an¬
swer the interrogatories propounded in the petition, or show
good cause why he should not. This petition and order are to
be filed in the Clerk's office. At Court, if he shows no good
cause to the contrary, he will be compelled to answer; and
then the answer may be read to the jury as evidence against
him J or if he does not answer, the petition inay be taken for
confessed*, and read against him as an admission. If you want
to try the case at the first term, this petition should be filed in
vacation. But it may be filed during the term, and the cause
' continued until the party answers.
THE TRIAL TERM.
Sec. 70. When the Judge takes his seat upon the bench he
orders the Sheriff to open Count, Which he does by simply pro¬
claiming the Court open acctr Jing to law. He is then direct¬
ed to call the Venire, that is, the jurors summoned to attend
the Court* The County Court at the first term after the ad¬
journment of the Cireuit Court, are to appoint twenty five ju¬
rors, from the different civil districts of the County to attend
the next Term. ' The Clerk of the County Court then issues a
Writ, called a Venire Facias, to the Sheriff, containing a list of
these jurors, and commanding him to summon them to attend
the next term of the Circuit Court. He is bound to return the
Writ at that term, showing that they are all summoned, or
40
some good reason why any of thctn are not. These jurors
are called the Venire, from the name of the Writ. The names
of all who answer when called at the door, are written by the
Clerk on a slip of paper and put in a box. Thirteen of these
names are drawn out of the box by a child under ten years of
age, and they constitute the grand jury, and the balance con¬
stitute the traverse jury, because it is their business to try the
traverses or issues of fact that are for trial during the term.
Of the thirteen grand jurors the Court selects as foreman, to
whom the Clerk administers the following oath:
"Yon solemnly swear, as foreman of this Grand Jury, that
you will diligently inquire into, and truly present, all such mat¬
ters and things as shall be given you in charge, by the Court,
or otherwise come to your knowledge; that the council of the
State's Attorney, yourself and your fellow jurors, you will keep
secret; that you will present no one through malice, hatred or
ill will, neither will you leave any one unpresented through fear,
favor, affection or reward, or any hope thereof; but in all your
presentments, you will present the truth according to the best
of your knowledge; So help you God."
The other jurors are sworn as follows:
"You solemnly swear that the same oath which your fore¬
man has taken on his part, you and each of you will well and
truly keep and observe on your respective parts."
The Court then charges the grand jury concerning the im¬
portant duties that devolve upon them, and they retire to their
room, attended by a constable, sworn for that purpose, and by
the Attorney General who should be with them to advise and
direct them.
The next business of the Court is to call the roll of Attor¬
neys, for the purpose of giving them an opportunity to make
such motions as they may deem necessary in theif cases. When
this is over, the trial docket is taken up. There are usually upon
that docket a good many cases which are not litigated; actions of
debt have been brought on notes, to which tfye defendant has put
in some plea merely lor the purpose ol delay. It is the common
course of practice to dispose of these cases first & for the Attor¬
neys to calculate the amount of debt and interest in them,
and agree that verdict and judgment shall go for the proper
amount, without the formality of a trial. This however is a
practice within the discretion of the Court. Whenever your
case is called on the docket, you will have to dispose of it in
some way. By the consent of both parties and of the Court
it may be simply passed over, and then it will go to the heels
41
®f the docket^ tkatis,;^ looses its turffi and all the other cases
will stand for trial ]|$fbre it. But the parties may, by consent
of the Court set it for trial on a particular day of the term
if not thus passed over,
Sec. 71. The venue may be changed, which means that
the trial may be transferred to another county. This maybe
done at the issue term, or at any time during1 the trial term. In
criminal cases this can only be done by order of the Court on
discovering that'an impartial jury cannot be had in the county.
In civil cases however the venue may be changed on the mo¬
tion pf either party, sustained by his own affidavit that on ac¬
count of prejudice against him or his cause, or for some other
reason, he does not believe he can have a fair and impartial
trial in the dounly; and the affidavits of three disinterested
persons to the same effect. On' this showing, the Court will
order the venue to be changed to some adjoiningpounty where
a fair trial can be had. It will then be the duty of the party
procuring the order to obtain from the Clerk a complete tran¬
script of the record and file it in the office of the Clerk of the
court to which the cause is transferred. As the witnesses will
not be bound to attend the trial in another county, it is proper
that Subpoenas should be obtained of the Clerk of the court to
which the venue is changed, after the record is filed with him,
to have1 them summoned again; or if the parties do not desire
their personaT%ttendance, tliey may under the Act of 1852
give notice and take their depositions.
Affidavits for a change of Venue.
i """ """""
The plaintiff makes oath that he verily believes there exists
in Wilson county so much prejudice against him {or against his
title in this cause) that he Cannot have a fair and impartial trial
of this cause in said county.
Sworn to and subscribed in open court, August 1st 1852.
W. Hart, Clerk."
A. B. and C. also make oath that they believe they are ac¬
quainted with the public opinion and feeling in regard to the
plaintiff (or the title set up by the plaintiff) in the above cause, and
that there is so much prejudice against him that he could not
havVa fair and impartial trial in Wilson county. Sworn to &c.
Ejectment.
JAMES HART.
A. B. C.
42
ENTRY Changing TVENuE*
. , ' " , r.
"James Hart, V
vs. > Ejectment.
John Smith. )
Came the parties by their Attorneys, and on motion of the
plaintiff, and it appearing to the satisfaction of the Court from
the affidavits of the plaintiff and A. B. and C., that the plain¬
tiff cannot have a fair and impartial trial of this cause in Wil¬
son county. It is ordered by the Court that this cause be
transferred to the Circuit court of Rutherford county for trial."
Sec. 72. Continuance. If either party is not ready for trial
when the case is called, he may move to continue it, and if the
other party agrees to it, it is continued by consent. If he does m6t,
the motion must be sustained by the affidavit of the mover,
his agent, or attorney. This affidavit must show. 1. That
he is not ready for trial. 2. The reason why he is not ready,
as, that a material witffess is absent, or that he has not suc¬
ceeded in procuring a certain document or deposition which is
material for him. 3. That he has used proper diligence to
procure the testimony, as that the witness has been summoned,
but without his consent fails to attend, or that a Subpoena was
in due time put into the Sheriff's hands but he has not sum¬
moned the witness, or that the materiality of the wanted tes¬
timony came to his knowledge too late too proctire it. Whatever
may have been his efforts to get ready, must be stated. 4. He
expects to procure the desired testimony and be ready for the
trial by the next term; for it is of no use to continue the case
unless there is a reasonable prospect of procuring the testi¬
mony. It is usually stated in the affidavit that the continuance
is not asked for delay but that justice may be done; but as the
Court will look to the facts stated, to see whether justice de¬
mands the continuance, no use is perpeived for this statement,
The affidavit is either general or special. A general affida¬
vit is one which states in general terms that the absent witness
is a material witness for the affiant. This is sufficient for the
first continuance of a suit. A special affidavit not only states
the materiality of the witness, but also what particular fact
the affiant expects to prove by him. This is always necessary
on an application for any second or subsequent continuance.
On the first continuance the party has pay the costs of
the term, which, will be the fees of the witnessess on both sides
for their attendance during the term, and the Clerks fees for
e atrjes made during the term; for which judgment will be en-
t ired against him; and although he may ultimately gain the
suit, he never can recover back those costs. On the second or
43
any subsequent continuance thpp^arty will usually have to pay
the whole of the, costs not previously paid or adjudged against
himself or his adversary. ^
Form of. Affid avit fo r G ontinuance.
"James Hart )
vs. V Debt.
John Smith. »
The plaintiff makes oath that Hob Fox is a material
witness for him in the trial of this case; that he has been duly
summoned but does not attend; that his absence is not by this
affiant's consent; that he expects to have his attendance at the
next Term of this court; that he asks a continuance not for de¬
lay but that justice may be done.
Sworn to and subscribed in open court, Aug. 1st, 1851.
JAMES HART."
W. Hart, Clerk.
If it is to be a special affidavit, for a % second continuance,
add after the statement that he is a material witness &c, "he
expects to prove by said Fox that he savy$he defendant sign the
note, on which this suit is brought, which fact lie cannot prove
(or so fully prove) by any other witness, and then' proceed as
above.
Entry of a Continuance.
"James Hart )
vs. > Debt.
John Smith, )
On affidavit of the plaintiff this cause is continued on his
paying the costs of this term. Ibis therefore considered by
the Court that the defendant recover of the plaintiff the costs
of the term, & that execution issue for the same." If the affida¬
vit offered by a party is defective, it is in the discretion of the
Court to allow him to supply the defect by a supplemental affi¬
davit, or not.
Sec. 70. "When a cause is called on the trial docket, if the
plaintiff is not ready for trial ggid has no cause for a contin¬
uance he should take a non-spit; for then he may commence
his suit again, or may on good cause shewn at any future day
of the term, have the non-suit set aside. When the plaintiff
does not appear by himself or his attorney, the defendant may
non-suit him, which is done in the same manner as if he had
not filed his declaration. I'f the defendant is not ready for
trial and can allege no cause for a continuance, he may with¬
draw his plea and confess judgment; or go to trial on the
chances of success. If neither he nor his attorney appear,
^4
J&e plaintiff may take judgment by default against him,
■hare the case submitted to a jury immediately, to inquire bf
the damages, unless it is a case of debt where no such inquiry
is necessary. Wherefhe case is under a rule to plead and try,
or where time is allowed the defendant* to plead so as not to
delay the trial, find he has not pleaded when the cause is cal¬
led, the plaintiff may take judgment by default, and submit
the case to a jury immediately to inquire df the damages.
Either at this time or at any other stage of the proceedings,
the plaintiff may enter a nolli prosequi as to any one defen¬
dant, and proceed against the others. If his writ is returned,
executed on one defendant &that the other is nbt'found, he may
enter a nolli as to the one who is not found, and proceed against
the other. But if he wants to obtain judgment also against
the defendant not found, he must issue an alias against him;
and he cannot file his declaration or proceed in any way
against the one who is summoned, until the other is summoned
also. So he may a%any time before final judgment discharge
one defendant, and proceed against the other.
Sec. 74. The Trial. If the cause is not otherwise disposed
of, it is to be tried when called. If the issue is upon the exis¬
tence of a record, it is to be tried by the Court, simply by in¬
spection of the record. This is usually the case in pleas to
writs of Scire Facias, and to actions of debt on judgments
rendered in other States. To these the defendant pleads nul
ti.cl record, there is no such record as that sued on; the plaintiff
takes issue on this, and the Court tries it. But if it is an issue
on any other fact it must be tried by a Jury of twelve men.
The traverse jury appointed by the county court, called the
originalpanncl, is to be called by the Sheriff. If they are out
in charge of another case, the grand jury may be" called to
serve as a traverse jury, unless they are engaged in gr&ndjury
business. If a jury cannot be made of the original pannel,
the Sheriff is to summon bystanders, who are called talismen,
because they have to be such men, to have the same qualifica¬
tions as the original venire.
Sec. 75. Challenges. When the jurors are offered, either
party may, before they are sworn, challenge, or object to them.
These challenges are either for cause, or peremptory. Challen¬
ges^/- cause, are, I. For defect of qualification. 2. For par¬
tiality. 3. For crime. A juror must be. 1. DefectA citi¬
zen, either native or naturalrzed. 2. Tlventy one years of ace.
3. A householder or freeholder..
2. Partiality. If he has formed an opinion in the case il?
related to either party within the sixth degree, is the servant
of either party, has a suit with one of them, or is interested
4»"
lb the case or question, he may bechallenged1. These circMis^?
stances are principal causes of challenge, because the very
fact raises a. presumption of partiality. There are other-
circumstances which raise a suspicion of undue bias, but do
not of themselves import partiality or prejudice, such, as hos¬
tility to-one of the parties, or extraordinary intimacy, with him,
or remote relationship &c~ These are grounds of challenge-
to the favor; upon which the Court, or two sworn1 jurors called.
triers, try the juror by inquiring whether he is impartiabin the '
case or not..
3. Crime.. Where the juror has been convicted of an in¬
famous offence.. £!
When a juror is challenged for any of these causes,, he is
examined on oath, as to the truth of the alledged fact, unless-
it is admitted. If any of these objections exist to the Sheriff,
the panel, of bystanders returned, by him may be - challenged,,
and the coroner,, or in his absence a constable, is directed to
summon a jury.
Each party m a-civil case is- allowed two peremptory chal¬
lenges, which are abitrary challenges, without assigning any
reason for them.
Sec.. 76.. When twelve unexceptionable-jurors are elected
they are-sworn, by laying their right hand on the Holy Gospels,.
when the Clerk administers- to them the following oath: "You-
solemnly swear that, you will, well and truly try the issue join¬
ed between James Hart plaintiff and John Smith defendant,
and; a. true verdict give according to the-evidence. So help,
you God." They then kiss-the book, and take their seats in
th c, Jury fox. If a juror is conscientously scrupulous about
swearing, he affirms, the Clerk administering the affirmation-
as follows: "You:solemnly affirm that you will well and- truly
try, &c." as in the oath. He maybe willing to swear, but not
on the Gospels; in. which, case he swears with his right hand
uplifted, while the Clerk says; "You appeal to. God as the wit¬
ness of truth, and avenger 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 you will well-and truly
try, &x." When the Clerk calls over the-names of the-jurors
s worn, and they answer, you are then to present your case to
them.
Sec. 77. Presenting; the case to> the Jury. The plaintiff first
reads his declaration; the defendant then, reads his plea, the
plaintiff his replication &c until the pleadings are all read.
The jury thus learn, what is the issue they are sworn to try..
The plaintiff then calls up; all his witnesses and has them
swer:.. The cah b au follows" "Yc •••.** '-"I
46
the testimony you shall give this jury in the case on trial be¬
tween James Hart plaintiff and John Smith defendant, shall'
be the truth,The whole truth and nothing but the truth. So
help you GodJ' The witnesses like the jurors may swear with
uplifted hand or affirm. ;
Either party may demand the rule upon the witnesses, that
is, that they shall leave the Court room and be kept together
by an officer, so that no one shall hear another examined. If
this rule is demanded, the defendant must call up his witnes¬
ses and have them sworn before the plaintiff commences the
examination of his witnesses. But if the rule is not asked,
the plaintiff gets through with the examination of his witnes¬
ses, before the defendant has his sworn, if the issue is such
that the plaintiff has the opening of the case; otherwise the
defendant fifstintroduces his witnesses.
Sec. 78.. The opening and conclusion. Whichever party has
the affirmative of the issue, usually has the opening of the
case; the onus probandi the burden of'proving what he has af¬
firmed, being on him. fff there are two issues in one of tvhich
the plaintiff, and in the other, the defendant, has the affirma¬
tive, the onus is on the plaintiff, and he has the opening.
Thus, if the defendant has pleaded the general issue, and also
a special plea of confession and avoidance, the burden is
thrown on the plaintiff, of sustaining the allegations of his de¬
claration, before the defendant is required to sustain his spe¬
cial plea. So although there may be but one issue and the
defendant may have the affirmative of it, yet if the plaintiff
will have to prove the circumstances of the case to show how
much damages he is entitled to, he will commonly be entitled
to the opening and conclusion of the case..
Sec. 79. The examination of Witnesses is: 1st. An ori¬
ginal or direct examination; which is the examination of the
party introducing him, 2. The cross-examination; which is by
the opposite party. 3. The re-examination by the counsel who
introduced him; and here the examination of the witnesses
must regularly close. The Court however may in its discre¬
tion relax the strictness of the rule, where justice may seem
to demand it; and allow either of the parties to ask omitted
or explanatory questions. If any question is asked by either
party which the other supposes will elicit an illegal answer, he
should object, unless he is willing to admit the evidence: for if
he admits the introduction of illegal evidence without object¬
ion, he thereby waives the objection, legalizes the evidence,
and can never afterwards except to it. If the court over-rules'
the objection and admits the testimony, he should except to the
opinion of the Court; and according to the scrict rules ofprac-
47
tice, he should immediately write a bill of exceptions, that is, a
written statement of the question, the objection and the over¬
ruling of it; and have it signed and sealed by the Judge and
filed as a part of the record in the case. But this practice is
generally disused in Tennessee, and the course is to let the
case proceed and if the verdict should be against the except¬
ing party, he offers the admission of the testimony as a reason
for a new trial, and if a new trial is refused him, he states
this supposed error of the Court in a general bill of exceptions j
which will be explained hereafter. If the Court sustains the
objection and rejects the offered evidence, the counsel offering
it, may in like manner except.
Sec. 80. In an action on a note, by the payee against the
maker. If the defendant has pleaded non est factum, and the is¬
sue is on that plea, the plaintiff must produce the note and
prove the execution of it by the defendant. But if the plea
is non assumpsit, nil debet, payment, or any thing else but non
est factum on oath, the plaintiff does not have to prove the exe¬
cution of the note; and of course he does not have to read it
to the jury as evidence, although that is usually done. It is a
rule of pleading that whatever is not denied is admitted; and
is a ruld of evidence that whatever is admitted by the plead¬
ings need not be proved. As therefore the defendant has not
denied the note by the only plea which could be received in
denial of itr, it stands admitted as described in the declaration;
and when you have read your pleadings to the jury, you have
sufficiently proved your case; and if the defendant has any
thing to allege against your ,recovery, he must prove it.
Sec. 81. In an action by an indorsee against the maker.
If the maker has not pleaded non est factum on oath, he admits
the due execution of the note to the payee; but he may deny
that the payee indorsed the note ter the plaintiff by a special
plea of that fact, without swearing to it; and that plea will
render it necessary for the plaintiff 'to produce the note and
prove the indorsement under which he claims. But the plea
of nil debet or non assumpsit does not put the plaintiff under
the necessity of proving the indorsements. According to the de¬
cisions of the Supreme Court, founded it is said on a peculiar
Tennessee practice, no other plea but no assignment, imposes
on the plaintiff the necessity of proving indorsements.
Sec. 82. In an action by the indorsee against the indorser,
the plaintiff is not bound to prove the note, because the de¬
fendant by indorsing it to the plaintiff* has admitted its genu¬
ineness; nor does he have to prove the defendant's indorse¬
ment unless the defendant has denied it by a plea on oath,
'^ut the plaintiff has to prove that the note was presented to
4 fit
the maker on, the dayr it became due/and payment demandedt
of him and he failed, to, pay it; and that he gave the indorsee
notice of such presentment and. non-payment, on the-next day
if] he lived in /the County, or by the next post, if he lived but of
the county,, and he must prove that thq .notice sent by post was
directed totthe post office at which the defendant resided or
usually received his correspondence. ,W,h§re the indorse^ sues
the maker and indorser together he lias, to make the same
proof against the maker as. if he had sued hipi alone; and the
same against the indorser, as if he had -sued him alone. \ He
may fail as to one. and .succeed against the other.. r
* Sec,..'82. In actions on open accounts, the plaintiff has or¬
dinarily to proye,tHe items in,the account by disinterested
witnesses, as he has to prove his right to recover jm pther ae-r
tionsy but there are some accounts; which by our statutes,are *
provable by,a different sort of testimony. They are: 1. Ac¬
counts, from other counties or* stages. „ These are su^ciently
proved by the plaintiffs affidavit annexed thereto, duly certified
by a Justiche, together with the Clerk's certificate that he is a
Justice* of the Peace. But the defendant may deny the Justice
of the account on oath; and then the plaintiff will be put to ,
the proof of it, as in other cases. This denial on oath ought to
be, by plea at the-issued term,, in order that the plaintiff may
have notice that he will, have to aduce evidence in. support, of
' his account, 'Ac't.1819 C., & N... 71*< i +
2.' Book account's. By whatis called the Book debt law, (C.
& N.. 131) the plaintiff; in an* action, for goods sold or, work,
done, may, when he files Iffa account with- his declaration,
prove the same,, to the amount of seventy-five dollars, by his
own oath at the trial of the- issue. * He mast swear.* 1.. That
tie. matter iff dispute iska"1 book account. 2.. That he has no,
other means of proving the4 itpnis,* he Shall * then propose to.
prove- by Ins own oath, but *by his book; 3*. That the book,
contains a true account of all the. dealings off the last settle¬
ment of accounts between him' add'the defendant. 4.. That
all the articles charged therein and proved, by him, were bona*
fide delivered, or the work performed by him.. 5.. That he lias,
given the defendant all just credits* This oath makes g. copy
from, the book evidence, unless-the defendant has given,the.
plaintiff notice, at the joining of issue, that he will require the
production of the book on the trial*,in which case a. copy is not
admissible. No, goods sold or work done more than two years,
before the commencement of the suit, can be thus proved;.
Executors or administrators may make oath; L That they
found the hock ccntaiidng the^ account as stated. 2 That
they henevo it tc hk p. trie kvcounb 3. Tk:t they
49
know of no witness who can prove the same. 4. That they
know of no other credits.
The defendant or his executor or administrator may in like
manner prove a set off, or disprove the account of the plaintiff
by other testimony.
Sec. 84. Evidence in Ejectment. The general issue in this
fiction is somewhat changed by the act of 1852; and will be
in the following form:
"The defendant by his Attorney, comes and says, he is not
guilty of unlawfully withholding from the plaintiff the premi¬
ses claimed by him in his declaration, and of this he puts him¬
self on the country."
The plaintiff must prove,
1. That the defendant was in possession of the land descri¬
bed in the declaration at.the time the writ issued; This can
only be shown by some witness who knows the boundaries of
the land, and the spot which the defendant was in possession
of, sufficiently well to testify to the fact.
The act of 1852, says, the suit shall be brought against the
person actually occupying the premises, or, if they be not oc¬
cupied, "against some person exercising acts of ownership
thereon, or claiming title thereto, or some interest therein." If
the courts shall determine under this act, that any acts of
ownership, or claim of title or interest, which do not amount
to a withholding of the possession from the plaintiff, will sup¬
port an action of ejectment, then it will'be sufficient for the
plaintiff to prove such acts, or such claim.
2. He must show a Grant from the State for the land. If
he has not the original he must produce,a copy, which he can
obtain from the Register of the District, if it is a Tennessee
Grant; or if it is an old North Carolina Grant, from the Regis¬
ter's office of the old county that included the land at the time
it was Registered. I
3. He must prove by witnesses wjio know the boundaries,
that the land described in the Grants includes the land descri¬
bed in the declaration.
If the plaintiff is the grantee, this evidence will be sufficient.
If he claims as the heir of the Grantee, he must prove his
death, and that he is his only heir. If he is neither the gran¬
tee nor heir, he must regularly deraign his title from the gran¬
tee or his heir. This is done.
4. By producing a certified copy of his will from the Clerk
of the County court, where the plaintiff claims as devisee; rr
by producing the deed, or a copy duly cerlified by the ecun'y
Register, where he claims by deed. And in all cases when hu
produces a deed he must be prepared to prove by witnesses
4
50
that the land described in the deed is included in the bounda¬
ries of the. Grant, or where it is for the whole of the Grant,
that the boundaries are the same. If any deed purports to
have been made by an agent, the power of attorney must also
be produced.
5» If the plaintiff claims under an Execution sale, he must
produce a copy of the record, in the case in which the judg¬
ment was rendered, on which the execution issued, and the
Sheriff's deed; and prove that the deed covers the land sued
for. This indeed will be sufficient against the defendant in the
execution, ordinarily, without showing the grant, and design¬
ing the title from the grantee to him.
6. If the plaintiff and those under whom he claims, have
been twenty years in undisturbed possession of the land, claim¬
ing it for themselves as granted land, that will be proof enough
of a Grant, or of a deed, or of whatever else is necessary to
convey a good title.
7. If the plaintiff proves that the defendant came into pos¬
session under him as his tenant, and that his term has expired,
that will be sufficient evidence without showing a grant and
deraigning a title from the grantee.
Sec. 85. 'When the evidence is closed the argument com¬
mences. The party upon whom the onusprobandi devolved, is
entitled to the opening argument. His argument is then an¬
swered by his opponent, and then he replies. Whoever is eh-
titled to the opening, is also entitled to the concluding speech.
If there be but two counsel for the plaintiff, one must open
the argument, and whatever may be the number for the de¬
fendant, they must all speak in succession, and then the plain¬
tiff's other attorney concludes. If there are more than two for
the plaintiff & more than one for the defendant, they may speak
alternately. The order of speaking however, where the coun¬
sel are numerous is subject to the discretion of the Court. No
attorney is allowed to make two speeches, except where .the
plaintiff has but one. The plaintiff, is here used to signify the
party entitled to the opening and conclusion; the same order
being applicable to the defending counsel where they have the
opening and conclusion.
Counsel are not allowed to state any facts in argument,
which do not appear in the evidence; nor to communicate pri¬
vate conversations either in regard to law or fact; nor to indulge
in personalties; nor to interrupt each other by side-bar remarks
or otherwise, except when it may be necessary to correct a mis¬
statement of the testimony, or of your positions, and then it
should only bespoken of ws a misapprehension, not as a mis-
te presentation. If they d isagree as to the testimony of a
51
witness, lie should be repealled to repeat what he said, or it
may be left .to the jury. The court has no right to decide the
'question; it belongs exclusively to the jury to determine ques¬
tions of evidence.
Sec. 86, Charge of the Court When the argument is clo¬
sed, the Court proceeds to charge the Jury, by explaining to
them the law involved in the case. The Court may state
what the testimony is, for the purpose of enabling the jury to
understand the law as it applies to the facts; but cannot say
what facts are proved by the testimony. The court never de¬
clares, th^t a particular fact is proved, but declares what is the
law, upon the hypothesis that it is proved. The jury are bound
to receive the charge of the court as the law of the case, how¬
ever erroneous they may conceive it to be. The constitution
and the laws of our country, have entrusted different powers
to different official agents, and each one is responsible for the
manner in which he wields his powers, and another cannot in¬
terfere with him. To the Court is committed the power and
duty of declaring what is the rule of law, and to the jury, the
decision of the facts according to that rule. Neither, has any
iright t3 encroach upon the province of .the other. It has been
thought however, and is so decided in Tennessee, and some
other States, that the jury, if they are satisfied it is erroneous,
may in criminal cases, disregard the charge.
Sec. 87. Verdict. After receiving the charge of the Court,
the jury retire, in care of an officer, to consider of their ver¬
dict; and they cannot disperse until they have agreed, without
the consent of the parties. In civil cases their consent to the
dispersion of the jury during the ordinary recesses of the
court, is always implied, unless objection is made. If jipon
consultation, the jury disagree as to what was the law' an¬
nounced by the court, or desire information in reference to any
question of law not explained in the charge, they may return
into Court and ask for additional instruction. So if they dis¬
agree as to what was the testimony of a witness, they may re¬
turn, and have him called in and re-examine him as to what
he testified before; they cannot without the consent of the par¬
ties, elicit any new fact. And when they do return, they must
all come in a body. They can receive no private instruction
from the Court, nor examine any witness in their room. A ju¬
ror cannot act upon his own knowledge, nor upon information
received from his fellow jurors, otherwise than upon oath as a
witness in open court. They are sworn to give a true verdict
according to the evidence, not according to their knowledge or
information. They should have the pleadings and all the docu¬
mentary evidence read"in the case in their retirement.
58t
When the plaintiff Hears the charge of the-court, he- may:
see that he must fail on some point which., he can strengthen*
on another trial; and in order to save himself from being estop¬
ped by a verdict, he may choose to take a nonsuit. He has a.
r ghfc to do so before the jury retire;. Whether, he can take a
n insuit before the jury retire a second time after having re-
tirned into Court for information, is questionable.
When the jury have unanimously agreed, they must comer
into court, andi deliver their verdict; it cannot be received by the
J uffge out of Court.
A verdict is either general or spcciah. A general verdict is-
either for the plaintiff or defendant generally and absolutely.
A special verdict finds the facts of the case, and leaves it to
the court to pronounce the law upon those facts.
Sec. 88. Mistrial. If the jury cannot agree at all, either
upon a general or special verdict, it is a mistrial. They cannot
be discharged however, so as to make a mistrial^ without the
consent of both parties, until their efforts to agree Lave been
so protracted as to render it very obvious that it must even¬
tuate in a mistrial, or until the court is about to adjourn.
When a mistrial is made, the cause stands over for trial at the
next Term; when the witnesses are bound to attend without
being again summoned.
Sec. 89. Entry. Whatever verdict the jury may render,
or whatever else may be done in your case, it must be entered
by the Clerk on his minutes, and be read over next morning in
open court, and signed by the Judge. As the Clerk may err
to your clients' prejudice, and the Judge may overlook, the er¬
ror, it is important that you should understand enough about
the forms of entries, to detect any such error and have it cor¬
rected. The first entry at every term of the court is the Cap¬
tion. It is designed to show that the court met according to
law, and that a competent Judge was present: It constitutes
an essential part of every transciipt of the record in every
case, as without it, it cannot appear that it was decided by a le¬
gal tribunal. It is as follows:
Caption of Record.
"State of Tennessee, Wilson County., to wit:
At a Circuit Court of the Fifth Judicial Circuit begun and
hell in and for the County aforesaid, at the Court House in the
town of Lebanon, on the first Monday in August in the year
of Lord, eighteen hundred and fifty-one, and of American In¬
dependence the 70th, present the Honorable Samuel Ander¬
son, Judge of said Circuit, were the following proceedings;
to
63
This is all the caption that is necessary .to civil proceedings.
But to criminal proceedings it is necessary that the caption
should, also show the organization of a 'Grand Jury, which is
done by proceeding immediately after the above, as follows:
"Winfield Scott, Sheriff of said county, returned into court a
writ of Venire Facias delivered to him by the Clerk of the
• county court, of Wilson county, showing that at the May term
thereof 1851, said court had appointed the following persons,
being good and lawful men of said county, to serve as. jurors
at the present Term of this court, to wit: A. B. C. D. E. F. G.
H. I. J, JL L. &c., who being summoned by the sheriff, ap¬
peared, and the said A. B. G. &c., were duly elected a Grand
Jury, of whom the said A. was by the court appointed Fore¬
man; anff the said Grand Jury, being empannelled, sworn: and
charged to inquire for thehody of the county aforesaid, retired
to consider of presentments and indictments."
After this, follows the entries, showing what was done in any
case upon which the court acted.. Thus, suppose your action
of debt was disposed of, the issue being on the plea of Mil
debet, and the verdict in your favor:
Entry in Bebt;Plea1Mil,©eb£t, F&undfor Plaintiff.
"James Haft 1
vs. > Debt.
John Smith. )
Game the parties by their attorneys and also a jury of good
^ aud lawful men, who being elected, tried and sworn the truth
to speak-on the Issue joined, upon their oaths do say, that
* the defendant does owe to the plaintiff the sum of fone thou¬
sand dollars as the plaintiff has alledged, and they assess the
plaintiff's damages for the detention thereof to fifty dollars. It
is therefore considered by the ccurt that the plaintiff recover
of the defendant the said sum of $1000, and fifty dollars the
damages assessed by the jury, andalso the costs of this suit."
Suppose part of the debt has been paid; although it is cre¬
dited on the note, the practice is to declare for the whole debt,
. and leave the defendant to plead payment, and give the credit
in evidence, which he may in fact do under the ffiea of nil debet.
We may remark that to the above asterisk * the entries of
all verdicts are alike.
Where the plea is nil debet, and only part of the debt de¬
clared fords found for the plaintiff the entry runs thus from
the asterisk. *
'fTbe defendant does owe to the plaintiff five hundred dol¬
lars, a part of the sum of $1000, demanded in the declaration,
and they do assess the plaintiff damages for the detention7
54
thereof, to twenty-five dollars, and they do further say that the
defendant does not owe the residue of said sum of $1000, or
any part thereof, to the plaintiff. It is therefore, &c.
If the plea is payment, and part of the debt is found paid,
the entry runs thus:
"The defendant has not paid to the plaintiff $500, part of
the sum of $1000 demanded in his declaration; and they do
assess the plaintiff's damages for the detention thereof to $25;
and they do also find that the defendant has paid to the plain¬
tiff the residue of said sum of $1000."
Entry on Nil Debet; found for defendant,.
"That the defendant does not owe to the plaintiff the said
sum of one thousand dollars or any part thereof, in manner
and form as the plaintiff has above alledged. It is therefore
considered by the court, that the defendant go hence and re¬
cover of the plaintiff and Jacob Jones, his security in the pros¬
ecution bond, the costs of this suit."
Entry on the issue of Non Assumpsit; for plaintiff.
"That the defendant did undertake and promise as the plain¬
tiff has alleged, and they assess the plaintiff's damages, by
reason of the lion-performance of said promises and under¬
takings to the sum of one thousand dollars. It is therefore
considered by the court that the plaintiff recover of the de¬
fendant the said sum of $1000, and also the costs of suit."
Verdict, for plaint iff in detinue.
"That the defendant does detain from the plaintiff the said
negro slave Bob, as the plaintiff in his declaration has alleged,
and they assess the plaintiff's damages, by reason thereof, to
the sum of $100, and that they assess the value of said slave
Bob at $800. It is therefore considered by the court,
that the plaintiff recover of the defendant the said slave
Bob, and the said sum of one hundred dollars damages, and
also the costs of this suit, and if saii slave cannot be had by
the plaintiff,, then it is considered by the court, that he recover
of defendant said sum of $800, the value so assessed in addi¬
tion to the damages and costs aforesaid."
Entr y in Replevin , for plaintiff.
J "That the defendant is guilty of taking and detaining (or
simply detaining) said grey horse from the plaintiff, amTtliey
assess the plaintiff's damages by reason thereof, to fifty dol¬
lars. It is therefore considered that the plaintiff recover of the
defendant said sum of fifty dollars and also the costs of this
suit."
55
For Defendant in Replevin.
"That the defendant is not guilty of taking and detaining
the plaintiff's horse as the plaintiff has alledged, and that they
assess the defendant's damages for the detention of said horse
from him by the plaintiff to the sum • of twenty dollars; and
they assess the value of said iron'grey horse to the sum of one
thousand dollars. It is therefore considered by the Court that
the plaintiff return said horse to the defendant, and if he does
not do so, that the defendant recover of the plaintiff and Jacob
Jones his security in the replevin bond said sum of $1000, the
value of said horse; And it is further considered that the de¬
fendant, recover of the plaintiff the aforesaid sum of twenty
dollars damages, and also the costs of this suit."
In Ejectment for Plaintiff.
"That the defendant is guilty.of withholding from the plain¬
tiff the premises described in the declaration, and they assess
the plaintiff damages by reason thereof, to one dollar. It is
therefore considered by the court that the plaintiff recover of
the defendant the premises described in his declaration, and
one dollar his damages aforesaid, and also the costs of ihis
suit." *-
Against one Defendant and for the other, on Nil debet.
"That the defendant John Smith does owe unto the plaintiff
the said sum of $1000, and they assess his damages by reason
of the detention thereof to $50; and that the defendant John
Den does not owe to the plaintiff the said sum of $1000, or
any part thereof. It is therefore considered by the court, that
the plaintiff recover of the said John Smith, the said sum of
$1000, his debt, and the said sum of $50 damages, and also the
costs of the suit as to the said John Smith; and that the said
John Den go hence and recover of the plaintiff the costs of
this suit as to him."
It will be observed that the finding of the Jury always res¬
ponds to the issue, affirmatively or negatively. For instance,
the plaintiff declares the defendant owes him, the defendant
says he does not, the jury answers he does. It is very common
however, for Clerks not to* specify what the jury do find, but
simply to state; "they find the issue in favor of the plaintiff—
or defendant," and this form ordinarily answers the purpose
very well. If there are several issues the verdict must res¬
pond to all of them.
Set-off.
Sec. 90. It is stated in Sec. 44, that if the defendant's set¬
off exceeds the plaintiff's debt he cannot have judgment against
the plaintiff for the excess, in a suit commenced in the Circuit.
66
-Court. This is altered by the act of 1852, Chap. 259, Sec. 2,
which allows such judgment. The first section of the same
act allows several replications to a plea of Set-off*. These
are very just provisions. The claim of set-off* is thus fully
put upon the ground of a cross action, allowing the plaintiff*
all the defences, and visiting him with all the liabilities, of a
defendant. The entry in such, a case would run thus:
"That the defendant does owe unto the plaintiff, one thou¬
sand dollars as ailedged in the declaration, and they assess the
plaintiff's damages to $50, for the detention thereof; and they
further say, that the plaintiff owes to the defendant $1500, as
alleged in his plea of set-off, and they assess the defendants
damage for the detention thereof to $100. It is therefore con¬
sidered by the Court, that one thousand dollars of the defend¬
ant's debt, be set-off against the plaintiff's debt, and that fifty
dollars of the defendant's damages be set-off against the dam¬
ages so assessed for the plaintiff. And it is further consider¬
ed that the defendant recover of the plaintiff five hundred dol¬
lars, the residue of his debt, and fifty dollars the residue of
his damages assessed by the Jury, and that he recover of the
plaintiff, and Jacob Jones, his security in the prosecution bond,
the costs of this suit."
Devisavit vel son,
The act of 1852, Ch. 77, provides that any adult legatee,
having notice that the probate of the Will is contested, shall
give bond and security in the sum of $500, for the prosecution
of the suit, or renounce any claim under the Will, and if all
the legatees refuse to give bond, the Will shall not be admitted
to probate. It would seem to be the design of the act to en¬
able either the executor or the contestants to compel the adult
legatees, by notice, to come forward and give security, and be-
bome parties, or renounce their rights under the Will. Under
this law we presume the Executor should be the party for the
use of such legatees.
Entry Establishing the Will.
"That said paper writing is the last Will and Testament of
John Den, deceased. It is therefore considered by the court,
that it be established as his Will, and that the plaintiff recover
of the defendant, and his security, in the bond
given for the successful contestation of the probate, the costs
of this suit."
It does not comport with the plan of this hasty sketch to
multiply these forms. From the few here given, the student
yriay learn how to frame others adapted to his case.
57
CHAPTER IV.
Proceedings after Verdict.
Sec. 91. New Trial. If either party is not satisfied with
the verdict, he may move the Court, to set it aside and give
him a new trial. The proper time for making this motion is
when the Attorney's name is called on the rbll, on the next
morning after the verdict is rendered, or on the calling of the
roll at any subsequent day of the same term: it cannot be
made at a subsequent term. When, however, the motion is
made, it may be continued by the court, and disposed of at the
next term.
The following are the principal grounds on which new trials
are granted. ;
1. That the verdict is contrary to the evidence. If the court
is satisfied that there is a great preponderance of evidence
against the verdict, a new trial will be granted. But if the
evidence is nearly balanced, or if there is but an inconsidera¬
ble preponderance against the verdict, the Court should have
respect enough for the jury to let their verdict stand.
2. The verdict is contrary to the law as charged by the court.
3. The court erred in admitting evidence which the party
moving for a new trial objected to; or in rejecting evidence
which he offered.
4. The court erred in charging the jury, by declaring the
law too strongly against the party moving for a new trial. If
the error was in charging the law in his favor, he cannot
ask a new trial on that ground.
5. Since the trial the loosing party has discovered new evi¬
dence, which, if it had been before the jury, would probably
have produced a verdict in his favor. To sustain a motion
made on this ground, the party must make affidavit that he has
discovered the evidence since the trial, stating specially what
the evidence is, and by whom he can prove it. He must also
produce the affidavit of the witness by whom he can prove the
fact. He may have a subpoena for the witness if he will not
voluntarily give his affidavit; and if he cannot procure his affi¬
davit at the present term, he may have the motion, or as it is
more frequently called, the rule, for a new trial continued until
the next term.
6. The party was surprised by certain testimony introduced
against him, and he can disprove it on another trial. In this
case also, he must introduce his own affidavit, showing that
the testimony complained of, was false, that it could not have
been reasonably anticipated, and by whom he can disprove it.
58
He must also introduce the affidavit of the witness by whom
he expects to disprove it.
7. Misbehavior of the jury, as that they were influenced by
the entertainments, threats or promises of the party for whom
they decided, or his friends; that they received evidence out of
court; that they cast lq&tfffor the verdict; that they agreed to put
down the amount of damages each juror was in favor of, and
divide the aggregate by 12, & make the quotient their verdict;
that some overawed the others; or that in some other respect
they were guilty of such misbehavior as subjects the verdict to
the suspicion, that it is not the fair and deliberate expression
of the jury's opinion on the evidence. The affidavits of the
jurors, or of other disinterested persons, must be adduced to
sustain the motion on this ground.
Sec. 92. If the court sustains the motion, the cause stands
for trial again at the next term. When the new trial is gran¬
ted on the fifth or sixth grounds above stated, the Court will
usually grant it on terms, that is, the party applying for it will
be required to pay the whole costs, or such portion of them as
the Court may think reasonable under the circumstances. But
no just reason is perceived for imposing terms, when the ver¬
dict is set aside on the other grounds stated, although it is
sometimes done.
Sec. 93. A witness once summoned,is bound by statute to
attend from term to term until discharged by the Court, or by
the party who summoned him. Whether he is discharged by
a verdict, so that he will have tebe re-summoned on a new t -ial,
is questionable. The prevailing opinion is that he is not, but
that he is bound to attend under the old Subpoena, unless the
court or the party had discharged him. When the plaintiff is
non-suited the witnessess are discharged, and if the non-suit
is set aside, they must be summoned again. A non-suit is upon
its face, a final disposition of the case; but a verdict is not.
Not more than two new trials can be granted to the same
party, where the two concurring verdicts are founded on the
facts of the case. But if the Court has charged the jury er¬
roneously, or has admitted or rejected evidence improperly, or
the misbehavior of the jury vitiates the verdict, any number of
new trials may be granted on these grounds.
Sec.. 94. Bill of Exceptions. If the Court overrules the-
motion for a new trial, and you intend to appeal to the Su¬
preme court, your first step is to write out a bill of exceptions,
which is a history of all that has transpired in the trial of the
case, except what appears on the record- The verdict of the
jury, your motion for a new trial, the overruling of it, and the
final judgment, are matters that necessarily appear on the re-
59-
cord. But the evidence introduced, the eharge delivered by the
court to the jury, the decisions of the Court admitting or re¬
jecting evidence, or on challenges of jurors, and other inciden¬
tal matters, the affidavits introduced to sustain the motion for
a new trial; these do not appear on the record; and it is the
object of a bill of exceptions to spread them on the record, so
that the appellate court may see, whether or not the Circuit
Court acted correctly in, refusing a new trial. The witnesses
are never taken to the Supreme Court, nor are any of the deeds
or other writings whichwere given in evidence, unless they are
in this way made a part of the record.
It is the business of the, attorney who asks for a new trial,
to write the bill of exceptions and present it to the Judge, who,
if he finds it correct, is bound to sign and seal it. An entry
is made on the minutes that it was thus signed and sealed, and
ordered to be made a part of% the record.
There is no particular form necessary. The following will
do:
Bill of Exceptions.
"James Hart J ,
vs. > Circuit Court, August Term 1851,
John Smith, )
On the trial of this case, the plaintiff, introduced the follow¬
ing evidence:
A Grant from the State of Tennessee to John Den in the
wbrds and figures following: (here insert it.)
A deed from said Den to plaintiff, (insert it.)
James Fox a witness testifies, (here insert his testimony.)
The defendant introduced the following evidence:
John Hogg a witness, testifies, (insert his testimony.)
The defendant asked said witness what he had ever heard
Richard Fen say about the boundaries of the land in contro¬
versy. The plaintiff objeetedlfeo this question, but the object¬
ion was overruled by the Court; to which the plaintiff excep¬
ted.
Plaintiff then offered to read the following deed from John
Horn to Joseph Hardin (here insert it) to which defendant ob¬
jected, on account of its irrelevancy and want of due probate;
Which objection was sustained by the court and the deed re¬
jected.
This was all the evidence.
The Court charged the jury as follows; (here insert the charge.}
The plaintiff introduced the following affidavits in support
of his motion for a new trial (here insert them.) The plaintiff
tenders this, his bill of exceptions to the decision of the court,
(60
refusing him;a new trial; which is signed and sealed by the
Court. S. ANDERSON, [Seal.]"
It is usually stated In the bill of exceptions that the jury re¬
turned a verdict against the exceptor, that he moved for a new
trail, that the motion was overruled, to which he excepted,^
and that his bill of exceptions was orderedto be made a part of
the record; But as all these things are stated in the minutes of
the Court, there is no necessity for repeating them In the bill.
Entry of Motion fo.r a New T>k,ial &c. ^
"The plaintiff by his attorney moves for a new trial, which
motion is by the court overruled; to which the plaintiff excepts,
and tenders his bill of exceptions, which is signed and sealed
by the court and ordered to.be made a part of the record in this
case.
Instead of setting out the testimony of each witness, the at¬
torneys frequently agree upon a general statement of the facts
in the bill of exceptions. .It is always necessary that it should
appear that the bill contains all the evidence; otherwise the
supreme court will presume there was evidence enough to sus¬
tain the verdict.
Sec. 95. Motion in arrest of Judgment. If the defendant
fails in his motion for a new trial, he may then make a motion
to arrest the judgment. None of the causes for a new (trial
will be good causes t© arrest the judgment. They are all facts
which do not appear tin .the record, and there is no other way
of taking advantage of them than by asking a new trial, and
excepting to the opinion of <the Court, if it is refused. But if
the declaration does not show;a good cause of action, admitting
the facts stated in it to be true, or if there be a good defence
alleged ,in the plea, and the matter alleged in the replication is
no good answer to it, (then the defendant may move to arrest
the judgment; for although the plaintiff has a verdict,
that verdict only finds the matter alleged by him to be true,
and admitting its truth it does not-entitle him to a judgment.
But in the case of an insufficient replication to a good plea,
the court may award a repleader, allowing the plaintiff to putin
a sufficient answer to the plea, if he can do so. It is alone for
substantial errors appearing on the record that judgment can
be arrested. It is provided in the act of 1852 called the re¬
form law, that judgments shall not be arrested for any defects
of form. This was the law before, and it is difficult to see what
reform was intended by it, unless it was to forbid the arrest
-or reversal of a judgment on account of a mistake in
(the form -of action, as if the declaration were in the form of
61
debt on an obligation tox pay bank notes-- Thih However;,
was always regarded as substance before, although! in truth it
is nothing but the verriest form. On the day after the motion,
the defendant's attorney must furnish the plaintiff with a copy
of the reasons, in arrest of jugment; and: the motion is to be
arguedr in the three last days of the term*. Should the court
sustain the motion, final judgment is given for the defendant,
"that he go hence, and recover of the plaintiff the costs of this
suit." But the plaintiff may propose to amend, and, the court"
may allow him to do so* upon payment of the costs.
Sec? 96.- Repleader and judgment non obstante verdicto.. If
the defendant puts in a plea of confession and avoidance,
which is not sufficient, if true, to bar the action, and the plain¬
tiff takes issue on it, this is called an immaterial issue; If the
verdict is for the plaintiff, he is entitled to judgment, for the
plea is not only insufficient in law, but untrue in fact. If the
verdict is for the defendant, he- is not entitled to judgment
against the plaintiff, for although Ms plea is found true, it is
nevertheless no bar to the plaintiff's action. The plaintiff in
such case may move for judgment non obstante veredicto, notwith¬
standing the verdict against the defendant. For the defendant
has confessed the facts stated in the declaration, and has alleg¬
ed nothing, to avoid the legal consequence of that confession,
which is a judgment for the plaintiff. This judgment notwith¬
standing the verdict, will be final, when the action is debt on a
note, bond or settled account; and interlocutory, where the in¬
tervention of a jury is necessary to ascertain the damages,
But the court may award the defendant a repleader in such case,
that is, he may be allowed to put in a sufficient plea to the dec¬
laration, instead of allowing the plaintiff a judgment against
him; if the facts shown by the evidence or by affidavit, show
thathe has a just defence. These repleaders, arc nothing more
than such amendments of the pleadings, as the justice of the
case seems to demand.
Sec. 97, Appeal to the Supreme Court. When the motion
for a new trial, or in arrest of judgment is overruled, or even
without making any such motions, the party may take an ap¬
peal in the nature of a Writ of Error to the Supreme Court. A
writ of error, is properly a writ from a Superior to an Inferior
Court, commanding the latter to send up to the former the re¬
cord in a particular case, it being suggested that there is error
in it. An appeal is the taking of a case from the Inferior to
the Superior court, simply by application to the former. This
therefore is an appeal; but as it answers the peculiar office of
a writ, which is, to correct errors of law appearing in the re¬
cord, it is an appeal in the nature of a writ of error. Either
62
party is entitled to it in any case, where he is dissatisfied with
the judgment of the Circuit Court. But before it is granted
he must give an appeal bond, with good security, which, in
some cases must be for the debt, damages and costs; in others
for the damages and costs only. If the judgment is against the
defendant, in an action on a bond or any written obligation for
the payment of money, promissory notes,bank notes, bonds or
property, or upon a bill single, promissory note, bill of ex¬
change, liquidated account signed by the defendant, or upon
an indorsement of any negotiable instrument, then the secu¬
rity must be for the debt, damages, & costs. In all other cases,
it is for damages and costs only.
The party may also appeal without giving security, on ta¬
king the pauper oath, that he is unable to bear the expenses of
the appeal. It is the construction of the pauper law, that it
gives to the poor persons taking the oath, a right to all the
remedies allowed for the redress of grievances, except in a
few cases.
Form of Appeal Bokd.
"We John Smith and John Den, of Wilson county, acknowl¬
edge ourselves indebted to James Hart, in the sum of twenty-
pne hundred dollars: to be void, if the said Hart shall prosecute
with effect, an appeal in the nature of a writ of error to the
next Term of the Supreme Court of Tennessee, at Nashville,
by him prayed, from a judgment rendered against him, in fa¬
vor of said James Hart, in the Circuit Court of Wilson county,
on the 10th day of August 1851, for the sum of one thousand
dollars debt, and fifty dollars damages, and also the costs of
suit; or if he fail in said appeal, shall pay, and satisfy said
debt, damages and costs, and all such damages and costs as
shall be awarded against him, for wrongfully prosecuting said
appeal."
Entry of the Appeal.
"The defendant prays an appeal, in the nature of a writ of
error, to the next Term of the Supreme Court at Nashville,
and having given bond with John Den his security, said ap¬
peal is granted."
Sec. 98. After the adjournment of the Court the Clerk
makes out a copy or transcript of the Record, beginning with
the Caption of the Minutes of the Term at which judgment
was rendered, then proceeding to recite "that on the 14th day
of April 1851, the following prostcution bond was entered into
before the Clerk"—copying the bond,—then the writ—the re¬
turn of the sheriff, the declaration and other pleadings, all the
orders of the Court, the verdict, and judgment, the motion for
63
a new trial, the bill of exceptions, the appeal bond, & all the
entries in relation to the case. The subpoenas for witnesses
do not constitute a part of the record, nor do affidavits for con¬
tinuances, nor do any depositions, deed or writings of any kind,
unless they are made a part of the bill of exceptions. The
Clerk must annex a bill of costs to the record. He then cer¬
tifies that it is a true and perfect copy of the record in the case,
and affixes the seal of the Court.
The party who appeals is called the apcllant, and the other
party the appellee. It is the duty of the appellant or his attor¬
ney to get the Transcript of the record from the Clerk, and file
it in the office of the Clerk of the Supreme Court. In that
court a particular time is assigned to the business pf each
Circuit; and the Transcript must be filed five days before the
docket for that circuit is called, to entitle the appellant, to a
hearing at that Term. If the appellant does not do it, the
appellee may procure a transcript and bring it up, and move
to have the judgment affirmed, and according to any regular
practice it ought to be affirmed without looking into it; the
appellant ought to be considered as having abandoned his ap¬
peal, and waived any errors the Circuit Court may have com¬
mitted against him, by neglecting to bring up the record and
insist upon a reversal; nevertheless our statue provides that the
Court shall look into the record, and shall reverse the judg¬
ment if they find any substantial errors. If the record is not
brought up, during the Term to which the appeal is taken, the
appellee may bring it up at the next term, and move an af¬
firmance; for he cannot have his execution in the Circuit court;
the appeal deprives that Court of all jurisdiction to proceed
in any way in the case. It is in the Supreme Court, and must
be there disposed of before the appellee can have any advan¬
tage of his judgment.
Our statutes provide, that when there is a joint judgment
against two defendants, one of them may appeal alone; and
then the judgment remains in full force against the other.
Execution may issue against him; the jurisdiction of the Cir¬
cuit Court remaining as full and complete as to him, as if he
had been the only defendant. If full satisfaction should be
obtained of him, before the judgment is affirmed against the
other, or before the execution issued against him, or is satis¬
fied, the supreme court on proper evidence of the fact, will
make such order in the case as will protect him from paying it
again.
Sec. 99. Proceedings in the Supreme Court. The regular
course of practice is for the appellant to assign errors, that is,
to make a written statement in the supreme court, of the errors
64
foe complains of in the judgment and proceedings of the court
below. But inasmuch as the statutes make it the duty of the
court, to look into the whole record and reverse for any error
that may appear, whether assigned or not, no formal assign¬
ment of errors is necessary. It is required of the attorneys
on each side to furnish the Court with brief, that is, a brief
witten statement of the facts and points of law, on which he
relies. The appellant's attorney then reads the record, and
©pens the argument. He is answered by the appellee; then the
appellant replies, and the argument closes. The Court then
proceeds to give such judgment as the Circuit Court should
have; given. If they think there was error in the Lower court,
they reverse the judgment; if not they affirm, it. If they think
the Court below ought to have given a new trial, they reverse
the judgment, and remand the cause to the Circuit Court for a
new trial. If the judgment ought to have been arrested, they
arrest it, and render a final judgment, unless, the state of the
case is such as to demand further action in the court below,
to effect the justice of the case. If the judgment below is
affirmed, the court repders judgment against the appellant and
his securities, in the appeal bond, for the amount of the judg¬
ment below, and 12£ per cent, interest thereon, from the date
of the judgment, in those cases, where the law requires secu¬
rity for the debt. In other cases the judgment is against the
appellant alone for the amount of the judgment below, and
against him and his security for the costs of the supreme court
and the interest 011 the judgment from its date, which is the
damages. If the plaintiff below is appellant, judgment is
rendered against him and his surety in the prosecution bond,
for the costs of the Circuit Court, and him, and his surety, in
the appeal bond, for the costs of the supreme court.
Sec. 100. If no appeal is taken during the term of the eourt
at which the cause is decided, either party may, at any time,
within a year afterwards, take a transeript of the record and
file it with the Clerk of the Supreme Court, and upon giving
bond and security for costs and damages, the Clerk may issue
a writ of error; but inasmuch as the only office of that writ, is
to bring up a transcript, and as that is already filed, none ac¬
tually issues in our practice, but the Clerk shall issue a notibe
to the opposite party to appear and defend the writ of error;
this notice must be served on him five days before the docket of
that circuit is taken up in the Supreme Court. But this writ
of error will not operate as a Supersedeas; that is, it will not
stop the running of an execution from the Circuit Court on the
judgment. To effect this, a transcript of the record must be
presented to one of the Supreme Judges, accompanied with a
6 &
Brief" petitionVpointing out thd^ errors complained of,'and .ask¬
ing a Supersedeas. If the Judge thinks there are substantial
errors, he will write hisfiat or order on the petition, to the Clerk
of the Supreme Court, to issue a Supersedeas as prayed, on.
petitioner giving bond and security for damages and hosts.
Sec. , 101. No appeal or wrrit of error can be taken on any in-,
terlocutory judgment, or any order or judgment of the Circuit
(Jourt, that does not make a final disposition of the case.* Yofi
cannot, for instance, appeal from the deeision of the Court
granting a new trial. You may except to it, and file your bill
of exceptions, and if the case is finally decided against you,
you may move for a new trial; and if, the Court overrules it,
you may file another Irifl of exceptions, and take an appeal in
error, on the ground that the COurt pught not to have set, aside
the first verdict; and if the Supreme Court is of that opinion,
they will reverse the latter judgment, and render judgment in
your favor on tire first verdict, which was wrongfully set aside.
So if a plea in abatement is improperly overruled, and the de¬
fendant ordered to plead in chief, he cannot appeal from that
decision; but if the suit is ultimately decided, against him, he
may appeal, and have the judgment reversed and the suit
abated.
Sec. 102... An appeal or writ of error may bp prosecuted from
the judgment of the Circuit Court to the Supreme Court sitting
at the time it is rendered, and be decided in the latter at the
same term, if the record is filed before the time assigned for
the business of the Circuit frPm which the appeal, or writ of'
error comes, and the appellee of his attorney has five days no¬
tice before the cause is taken up for hearing in the Supreme
Court.
Sec. 103. Diminution of Record.. If either party finds that the-
transcript of the Record filedis not correct, or not fall and com¬
plete, he may suggest the defect, whieh is called a diminution„
of the record, and ask the Court for a Certiorari directed to the
Court below, to send up a rhore perfect record. This sugges¬
tion must be supported by affidavit, staling the defect, unless it
is apparent on the face of the record.
Sec. 104. Equity jurisdiction in the Circuit Court. The Law
Reform, Act 1852, ch, 152, sec. 9, (Pamphlet Acts, 216)provides,.
that if a suit is brought and the defendant! fails to demur on the
ground that the Court has no jurisdiction as a law Court, and
the parties go to trial on the merits before a jury, if the Court
'thinks it a case of exclusive equity jurisdiction, the Court may
either order it to be transfefyed to the Chancery Court, or pro¬
ceed to try it on principles of equity, referring accounts and
facts in controversy to the Clerk or other commissioner, accor--
5
66
<ding to Chancery practice. In'-. jd^l^Rtiop w^ll
not sho w whether it is a mere ^
pear in evidence. In such a case the defendant has no opportu¬
nity to demur. As the Act,leaves it to;!hi|^lection33vhet^r ^r
not he will take advantage of the tvant of^jurisiMetioh by de¬
murring, wheh it appears in the declarationV we presume he
would have the same election whenever it did first appear in
the progress of the case, and that, ih the case supposed,-js on
the trial. He .might then, as we think, insist that the plaintiff
is not entitled to a recovery in a Court of law, or agree that
the suit might be determined on principles of equity. • .
Sec. 105. Carrying out this enactment, sec. 7 of the Act pro¬
vides that the Supreme Court shall not dismiss a suit for want
of jurisdiction of the subject in the Court below, except wifen a
demurrer has been filed below on that account; nor are they to
dismiss or reverse for defects of form; nor for any defect in en¬
tering the verdict where there .are several issues, or where the
verdict is not responsive to the issuer If these objections to
verdicts are not made before judgment is entered^ in the Cir¬
cuit Court, they are waived. It is also provided in sec. 4, that
any defect in matters of form may be rectified and amended
in the Supreme Court, if substantial justice requires it, and
the amendment is in affirmance of the judgment. As under
this Act, the form of action may be changed by amendment; as
it was before considered substance, beeause the law of 1S09
would not allow it to be amended; as it is indeed the merest
matter of form in most cases, it may be questioned whether the
Courts will not so consider it and rectify it, "where substantial
justice requires it, and it is in affirmance of the judgment."
It would be an anomaly in our jurisprudence, if the Courts of
law could administer relief in a ease where no form of action
would lie at law, simply on the ground that the party had waiv¬
ed objection by failing to demur; and yet in a case of admit¬
ted jurisdiction, relief should be denied him because he had
mistaken the form of asking relief, which the defendant had
also waived. '
Sec. 106. In the Supreme Court the appellant is plaintiff
whether he was plaintiff or defendant in the Court below and
the appellee is defendant.
■«7"
• tevtr'y ot affirmance of 3" u'.b'g m e "n t
PJohn Smith, I
vs~. > Appeal in Error.
James Ilart. ")
Came the parties by their .attorneys, when the 'matters of law
arising on the record in this case being argued and by-the
'Court understood,-.the Court is of opinipn that there is no er^
ro£ in the record. Jt is therefore considered by the Court that
the1" judgment; pf the Circuit Court be affirmed, and that the de-<
fendant recover of the plaintiff in error, and John Den,-his se¬
curity in the bond for the proseeution of this appeal, twelve
hundred and fifty dollars, the debt and damages recovered in
the-Court below., and fifty dollar^ damages,^ at the rate of 12£
per cent interest, from the date of the judgment, and twenty-
five dollars, the costs' of• the < suit in the Circuit Court, , and alsp
the costs of this» appeal." {
» * ( .
Entry reversing. Judgment,'& Granting 'a,.j\tew Trial.
"John Smith, 1
vjs V Appeal Error.
Jame^ Hart" )
"Carrie the parties by. their attorneys, when-the matters of
law arising 'out of the record being -argued by the counsel and
understood by the court, the court is of-opinibn, that there is
error in the record. It is .therefore considered that the judg¬
ment of the Circuit Court.bp reversed, and the case be re¬
manded to the said Court, to be* tried again before a Jury, and
that the plaintiff in error recover a gain's t the defendant, the
costs of this appeal?'
On this latter judgment, the jurisdiction of the Circuit Court
over the case will be restored as soon as the Supreme Court
adjourns; for until it does adjourn all its, judgments are under
its control, and may therefore, be reconsidered,, amended or
wholly changed. 'A't any time after, its adjournment, either
party may file a copy of the judgment of reversal, and pre¬
pare for trial by summoning witnessess, and procuring deposi -
tions, for the witnessess will not be bound to attend/unless re¬
summoned, having been oncp, discharged by a 'final judgment
in the case. If there is time to prepare for trial by the first
term, it will then stand for trial. No Procedendo issues to the
Circuit Court; the copy of the judgment of reversal being suffi¬
cient authority to proceed to another trial. , •
In order that the CouH below, may knovv on what grounds
the judgment was reversed, it is the duty of the Clerk to send
'd®wn with the judgment of reversal, a certified copy of the
'08i
opinion, of. tftd'Sftprefaie Court; which-i tfe'law-requites - to be
delivered in writing* alhd filed,Vitfi the Clerk,- that" any ope, who <
desires it,:mayhaye a.copy.,.- The .Circuit r'Cpurf, inbound to*
conform its decisions; to, the opmiomo-f the Supreme ■ Court, in.
the subsequent trial 6fj'^he,ca^. " .. fc\ ,
-1 Sec/. 107." Executions are to issue earth e judgments, of the.»
Supreme, ^o^fV'fte^.its 'adjournment, returnable to the plerk's*
office hi six months from the -mate, which U always -the^'first-
clay'of 'the "preceding' term.. Whatever de\k,i damages
, cpsts the'Cpm;V may jaavp rendered judgment iot, rare thiis -col¬
lected. ' .The •Supreme pourhsj^ ohch a .year at Knov;vilie,lor-
"East TCnftesseCy' &t Nashville Jor Middle Tenpe^seeV' and "£t
•'Jackson for. W.esftTetaessqe< It thua appeal's.that executions-
''trilhbe'returnable in vacatioh»%
» t * k» r
. -
, CI-lAP^fER'W*
- t * *♦ 4-
EXp.CU.TpON I N * T H> E. 0>I R.C.L^ X C OU^-T,.
Sep. 108. If no' appeal is'taken, to the Supreme Court, the-
Clerk of tlie. Circuit Court,- prQfcehds,' immediately after that^
Court adjourns; to make' opt ah Execution 'Docket.'. This dock¬
et is ruled jn'td,*cplumns> Pnp for*tl>e.names of parties* Ode for-
the date and. amount 01; the Judgment, one for the time vfhen,.
and thh Sheriff of fhacounty td which; execution, issued^ anil
another for the bill of hosts, and another for the return, .of the
sheriff^ and the receipt of the money* &c.\*"The clerk prepares
an .execution-With the bilj'pf costs, and the date,, and. amouu't.
of the judgment oh it; and deliver^ it to1 the plaintiff or his at¬
torney or to the sheriff, endorsing thereon*the day of.its issu¬
ance. Each item of cost is'- to be jet down in words .unabrevia-
ted, except the amount, which is ' in, figures., If the costs are
put down irt an aggregate form, p'r in abrevlated Words, the hxepu-
. tion is void as to'those items, & the sheriff caruiohcollect them..
• Sec. 109,.' There are two kindpmf execution in our law, one
to gain the possession of specific-property, 'Where that ,is re--
covered.in the suit; the-other to collect, the money, where that
is recovered. Wefiiave seen, that-there arc three actions in
which thepspeciiic property is recovered; that'*is, 'Ejectment, in
which land R recovered; Detinue, in which the plaintiff recovers
personal property of the defendant; and R<phvin, in which the
defendant recuver's of the plaintiff personal property of which
the plaintiff was put into possession by virtue of - the ori°inal
Writ. Prior to 184$ w'e also had an execution called a Ctpias
ad Satisfaciendum, or briefly Casa by which,the'sheriff was com¬
manded to'take th6 body of ,th ; defendant and keep him until
he satisfied the debt. IijT84i A3 ffi-- bt-re abvlhshcd this writ,
m
rand with it, the Capias ad Respondendum,'aboriginal process*.,
Sec. 110, , In Ejectment, where the iplaintiff recovers the
"land-, the Execution is a Writ of possession* Under this writ
the sheriff collects the costs of the suit, and puts the plaintiff
in possession of the land, and turns the defendant 'off.
Sec. 111. In Detinue, the plaintiff recovers the goods sued
for, and damages iQr tire detention of them, and if the goods
cannot be had, he recovers the value of them. It is known to
be the practice of soihe clprks under the sanction of the' Circuit
Judges, to enter the judgment for the value thus assessed, to be
discharged by the surrender of the property to the plaintiff.
In that case, execution issues'for the value, and the damages
and costs, the value potto be collected, if the property is sur¬
rendered. But the correct judgment is unquestionably for the
* property, and for the value, Jf the property-cannot be had.
' The. execution oUght on sound principle, to follow the judg¬
ment, and command the Sheriff to make the damages and
costs ourt of the defendants property, to take the property re¬
covered out of his possession and deliver it to the plaintiff, and
if it cannot be had, to make the value thereof,', assessed by tbe
Jury, out of the defendant's property. ■ This operates as a Dis¬
tringas, by seizing his property, and at once selling it to pay
the value of the property recovered. No doub.t he might ex¬
tricate his property levied on, by surrendering to the plaintiff,
the property recovered- This makes one execution answer
the purpose of carrying the judgment into pomplete effect at
once, and is believed • Jo be in ;accordance with .Tennessee-
practice. * '
Sec. 112. In Replevin,,-the' judgment against the plaintiff is
for the return of the property in dispute, and that the plaintifi
recover pf him and his security', the,value of it, if he fails to
do so, and the damages- for j;he detention thereof." The execu-
• tlon Would be the same as in detinue.
Sec. 113. Fieri Facias,-or Fi fa. This is the only execu¬
tion known to our law, where money is recoved.
It is in the following form; ,
, TIIESTATE or TENNESSEE,
To the Sheriff of 'Wilson County.
"You are hereby commanded, that of thp goods and chattels,
lands and tenements of John Smith,.you make the sum of ten
hundred and fifty dollars, debt and damages,' and the costs
hereon indorsed, to satisfy a judgment that James Hart recov¬
ered against him in the Circuit Court of Wilson County at the
August Term 1851, and have you said moneys together with
;this°Writ, at'said Court,tfco be held atJhe Court house in Leba-
!20
non in said county, on the first Monday'in' December next.
Witness William Hart, Clerk of said court, at office in Leba¬
non. This first Monday in August, A. D. 1851.
W. HART, Clerk."
This execution may be issued to any County in the State,
where the plaintiff may suppose,, property1 belonging to the
defendant may be foilnd. If it is sent by mail, the plaintiff
should always have evidence that he mailed it. If he delivers
it himself to the Sheriff, he should take his receipt, or at least
have evidence of the fact; so that he can prove it, should the
Sheriff fail to return it. The Sheriff is to indorse on it the day
of its delivery.
Sec. 114.. It is the Sheriff's business next, to search for per¬
sonal property, which includes not only moveable property, but
an interest for a term of years, irtjand. All the personal pro¬
perty which the defendant had at tjie date of the execution, is
liable to it. The date of the Writ is Called its tisie, and it is
not the date of its issuance, as indorsed on it by the Clerk, hut
the first day of the preceding term, which is its date on its face.
This binding of the property from tjie teste of the Writ is cal¬
led its lien. And although the defendant may have sold the
property since the teste of the FL Fa., it may still be levied on
as his. If two executions from the same Court are testetl of
the same term, in favor of different creditors, come to the hands
of the Sheriff at different times, and the property levied on is
not sufficient to satisfy both, the proceeds of the sale, are to
be equally divided between them. If one execution is from a
Justice of the Peace and the other from a Court of Record, the
first levy lias! the preference, without regard to priority of teste.
There is some personal property that cannot be levied on,
such as notes, bank stocks and other stocks or shares incorpo¬
rations, and remainders. If the creditor cannot find property
liable to execution, he may file a bill in, Equity, and have such
stocks and choses in action, subjected to the payment of his
debt.
Sec. 115. A levy on personal property can only be by taking
it into the-officer's possession. He is bound to* keep* it safely
until the day of sale, unless the defendant gives him a delivt ru
bond payable to the plaintiff, with good security, conditioned
that the property shall be delivered at the place* of sale on the
day appointed. If it is not delivered, the delivery bond is said
to he forfeited, and the Sheriff forthwith proceeds to levy on the
same, or any other property of the defendant, and if he can
find none, then he is to levy on the property of his surety; and
they are not allowed the privilege of giving another delivery
bond. If the term of the Court to which he is hound tu ye turn
71'
the execution, arrives- before he has time to levy, after the-for¬
feiture of the delivery bond, he returns the bond with: the exe¬
cution, and the Clerk issues an execution against the defend¬
ant and his surety, without any motion or judgment.. The
property levied on should be valued, and the value inserted in
the bond; if it is not, it is to be valued by. five disinterested
men; and the security is only liable for the value..
Sec. 116. There is certian property exempt from execution.,
for the benefit of the poor and their families,, such, as the arms
and equipments of militia men, the tools of a mechanic follow¬
ing his trade, a farm horse, mule or yoke of oxen, 500 bundles
of oats, the same of fodder and a stack of hay, 10 bushels of
wheat, 20 barrels of corn, 600 lbs pork, and some other things,
and by the act of 1852, a homestead worth $500..
«Sec. 117. Garnishment. If the Sheriff can find na proper¬
ty, but can find a debtor te the defendant, he must garnishee
him, that is, give him written notice to appear at Court at the
return of the execution, and answer on oath, what he owes the
defendant. If he does not appear, judgment nisi is taken, a-
gainst him for the whole amount of the debt; a Scire Facias is¬
sues returnable to next Term, when if he does not appear and
answer, final judgment is rendered against him. When he
does appear and answer, judgment is rendered against him for
the amount of his indebtedness, or at least for so much as will
be sufficient to satisfy the execution.
Sec. 118. If personal property sufficient to satisfy the ex¬
ecution cannot be found, the Sheriff must levy on defendants
land; which he does, not by taking it into possession, or even
by seeing it, but by simply writing the levy On the execution,
with such a description of the land as is sufficient to identify
it. Where there are two or more defendants, the Sheriff may
levy on the real estate of one who has no personalty, without
endeavoring to exhaustthe personalty of others. If one is se¬
curity or endorser, and has proved that to the Court, and had
it recited in the judgment and execution, then it is the duty
of the Sheriff to exhaust the property of the principal before
he touches that of the security. But the Sheriff cannot know
who is security, unless it appears in the execution..
Sec. 119. Advertisement, Sale and Return. After levying,
the next duty of the Sheriff is to give notice of the time and
place of sale. This he does by advertising at four public
places, one to be the Court house, forty days, if it be land, twen¬
ty days, if negroes, and ten days for any other porsonal proper¬
ty. In case of land or negroes, the defendant may, by writ¬
ten notice filed with the Clerk before he issues execution, or
with the Sheriff at the time of levying, require the sale to be
'72
^advertized in such'newspaper as he may select. If the de¬
fendant is in possession of the land, twenty days written no¬
tice is to be given-him.
Ai.the appointed time and place the Sheriff must sell the
property between ten o'clock and sunset, to the highest bidder.
If it is personal property he delivers it when sold, to the. pur¬
chaser. If'it is real property he can only make him a deed
for it, and if the defendant refuses 16 give it up, the purchaser
will be obliged to bring an action of ejectment, to obtain pos¬
session.
He is next to return the execution, by writing on i it a briel
history of what he'has done. As, 1. The levy, describing the
property. 2. The advertisement. 3. The sale, showing who
became the purchaser. With this indorsement, he must re¬
turn the Writ on the first day of the next Term of the Coprt,
and must then1 pay the money either to the plaintiil or his at¬
torney or to the clerk.
If there is not time to sell the property levied on, before the
Sheriff has to return the execution,, or if he has failed to sell
for want of bidders, or other cause, he returns the fact, and a
Venditioni Exponas issues, which commands him to proceed and
sail the property. This is not neces&aiy in the case of person¬
al property, that is in his possession or rather in the custody of
the law, and he may sell it after the return of the execution,
and pay1 the proceeds to the plaintilf. In any case if the pro¬
perty sells for. more than enough to satisfy the execution, ho
must p,ay over the . excess to the defendant. For the sale of
real property a venditioni exponas is always necessary.
If the Sheriff cannot find any property he returns u no pro¬
perty to be found in my county,'-' called the retbrn of Nulla
bona. On this return, the plaintiff may at any tirpe afterwards
have an alias execution, and if that is returned ?iulla bona, lie
may have apluries, and so on to,infinity. And it is no matter
how many terms elapse between the issuance of one execu¬
tion, and another, there is no discontinuance as in original
process;'but he may have his execution at any tirpe.
Sec. 120. If the plaintiff dies before execution issues, his
personal representative, that is, his Executor or Administrator,
in personal actions, may have a Scire Facias against the de¬
fendant to show cause why he should not have execution. If
the plaintiff in Ejectment dies, the heir may have a Scire Fa¬
cias. If the defendant dies before execution, the plaintiff may
have a Scire Facias against his representative to show cause
why execution should not issue against the estate of the de¬
ceased. But although the defendant may have died before
the execution actually issued, yet if* it was after its teste which
'rm
is always the first day of the preceding term,' it may be ; levied
011 his property, and there is no use for a Scire Facias.
If there are two defendants, the execution may issue against
both. If one has died, the common law course was to issue
the execution against both, suggesting the death of one, so that
the Sheriff will have no right to levy on his property. But if
the plaintiff should not be able to obtain satisfaction of the
survivor,he may no doubt obtain execution against, the repre¬
sentative of the deceased by Scire Facias. Ad our law allows,
and indeed requires suits to be revived in the name of the ;rep-'
resentative of one of several deceased plaintiffs or defendants,
it would seem most consistent, to allow, if not to require^ that
judgments should be so revived.
If no execution issued within a year and a day from 'the date
of the judgment, it could not issue without a Scire Facias a-
gainst uc lend ant, prior to the Act of 1849, chap. 39. By
that act the execution may issue at any tiihe without a
Scire Facias.
Sec. 121. Rcrlcmp/ion. The debtor lias a right to redeem
■ the land sold at any time within two years after the sale, by
paying or offering to pay the purchaser, the sum bid by him for
it, and six per cent interest thereon. If however the purcha¬
ser was a judgment creditor he may within "twenty days after
the sale, make an advance on his bid, of the whole debt, or any
part of it, by depositing a .receipt for it with the Clerk of the
Court in which his judgment was rendered. Then the debtor
will have to pay him the amount so advanced as well as the
amount bid. The debtor must pay or tender the money to the
purchaser himself, unless be lives oht of the county where the
sale was made, or absents himself from his usual place of res¬
idence; then he must pay itto the Circuit Court of the County.
When the debtor thus redeems the land, the purchaser is bound
to re-convey it to him, if it has been conveyed to .him by the
Sheriff. And if he refuses to do so, liO must file.a bill in the
Chancery court to dompelhim.
Any judgment creditor of the defendant may redeem it from
the purchaser also, by paying his bid and six per cent on it,
and also paying the defendant ten per cent on the purchaser's
bid, or crediting him with ten per cent on his (the redeeming
creditors) debt. When he thus redeems it, he has a right to
advance on it the amount of his debt, just as the first purcha¬
ser might advance his.
Any other creditor may redeem of the last redeeming creditor,
by paying him the amount he paid or advanced & crediting the
.defendant with 10 per cent on the original bid, Thus the land is
made a fund for two years for the payment of debts; and at
74
any'time within the two years the defendant may redeem it of
any creditor, who may have redeemed it, by paying him what
h'e advanced and interest.
Sec. 122. Indemnity bond. An officer is not bound to levy
on disputed property, unless the plaintiff will give him bond
and security to indemnify him against any damages that may
be recovered of him in consequence of said levy.-
Summary Judgments.
Sec". 123. By a summary judgment is meant one which is
rendered on motion, without any process fro bring the defendant
into court. In some cases the plaintiff is required to give the
defendant.notice of his intention to move against him, but this
notice is not process', it is a- mere communication from the
plaintiff to the defendant; whereas, process is always a com¬
mand issuing from and signed by a public officer, in the name
of the State.. "Even a notice to the defendant is not necessary;
except where the statute giving the summary judgment, requi¬
res it. Nor is the intervention of a jury necessary to decide
the questions of fact involved" in the motion, except where the
statute requires it. Under this head we will notice the pro¬
ceedings against the Sheriff on the return of executions.
Sec.' 124.. There are. four cases in which he is liable to a
summary judgmeht, where an execution has been, delivered to.
liim.. .
1. When he fails to return the execution..
2. When he fails to make a sufficient return.
3.. When.he returns it satisfied, in whole or in part, and fail's
to pay over the money collected.
4. When liemakes a false return. Act 1835, C. & N. 300.
A sufficient return, is one which shows that the money is made,
or some good reason why it is not; as, that no property of the
defendant can be found. A, false return shows a good reason
for not making the money, but it is untrue. As the Sheriff has
to return the Execution on the first day of the term (4 Hum. 69,)
and to pay over the money collected, to the plaintiff or his at¬
torney, or the Clerk, this motion may always be made against
him on the second davof the term,. It may be made however
on any subsequent day of the term, or at any subsequent
term, although an alias execution may have issued. If it is
made at the return term no notice is necessary, but if at a sub¬
sequent term, or against the Sheriff of another county, ten
days notice must be given to the Sheriff. The motion is made
against the Sheriff and his securities in. his official bond. And
the plaintiff must always produce a copy ©f the bond certified
by the Clerk of the county court, to show who are the securi-
75*
ties & that the condition of the bond shows that they are bound"
for the defalcation complained of. Notice to the securities is
never necessary.
If the motion is for not returning.the execution,, you' must
prove that it was issued by the Clerk; and was delivered to the
Sheriff, and has not been returned. The Clerk and his Exe¬
cution docket, will prove the first and last points; and the Sher¬
iff's receipt or any other sufficient testimony will'prove the de¬
livery. If his receipt is offered, you must prove his signature
to it.
If the motion is made for an insufficient return, or for not
paying over the money collected, the production of the execu¬
tion and the return, and the evidence of the clerk that the
money has not been paid into his office, will be sufficient.
If the motion is for a false return of nulla banayjdu must in
addition to the production of the Execution and return, show
that the defendakt had property, and that the Sheriff had no¬
tice of it and might have levied on it. It will be sufficient no¬
tice prima facie, that; the property was openly held, and by rea¬
sonable diligence might have benn found and levied oh.
The entry of the judgment in these summary proceedings
should show all the facts that are necessary to warrant the-
judgment.
Poem of S'iimmary Judgment.
"James Hart 1
Winfield Scott, and ) Motion-
James Madison, $
Came the plaintiff by his attorney, and on his motion, It ap¬
pearing to the Court that the defendants executed a bond be¬
fore the County Court of Wilson County on- the first day of.'
April 1850 in the sum of $12500, payable to the State of Ten¬
nessee, with condition, among other things, to be void, if the-
defendant Scott, Sheriff of said county, should well and truly
execute and due return make of all process that should come
to Ink hands, and pay over to the person entitled thereto, all
moneys collected by virtue of his office; it appearing also that
on the 1st day of August 1851, a judgment was recovered in
tliis Court by the plaintiff James Hart against John Smith for
the sum of one thousand and fifty dollars, debt and damages,
and twenty dollars costs, on which judgment an execution is¬
sued from thi3 court, on the first day of September 1851, di¬
rected to the Sheriff of Wilson County, commanding him to
make the said sums of $1050, debt and damages, and $20 costs,
oi the said John Smith's property, and have the same at the
m
ipresentTerm, of this court;' it appearing also' that saidexecm
tioti was delivered to the defendant Winfield Scott, Sheriff of
said ^county,'on the day arid year last aforesaid,: and #that ho
fias wholly failed to return said ' execution (or, *that hd has
returned said execution with only the endorsement thereon
'•not satisfied," or *that he has returned said execution gati^
fied,.and has .wholly failed and refused to pay over said, moneys
• or any part thereof,- or *that he! has returned said execution,
indorsed "no property of the defendant to be fopnd," and with
no other return, and it appeals to the court that said return is
false, and that the said defendant did have property enough to
satisfy said execution,, which, the said -Sheriff Scott Well knew
and could have levied pn.)
It is therefore considered by the court that the plaintiff recover
- of the defendants the aforesaid sum of $1050 debt and dama¬
ges,.and also $131 25, being 12j per cent damages thereon,
and also. $03, interest on said debt and damages?, and also $£l|,
the costs aforesaid, amounting in all to the sum of $1204 25,
and also the cos^s of this ttiotidn."
On this judgment an execution issues to the tdoroner, and if
he is in default, he and liis securities-are in Lke manner liable
to summary judgment.
Sec. 125. When the judgment is rendered against the Sheriff
and his securities'for not returning an execution or for an in¬
sufficient return, and he has paid it, he may have an execution
on the original judgment in favor of Hart the plaintiff, again-t
Smith the defendant. So if the 'Sheriff's securities have paid
, the judgment they may have execution on the original judg-
. ment. Act of 1850, Ch. 145.
Sec. 126. Mot ion against JDcputy. If a deputy has collect¬
ed the money, the plaintiff may ^recover by motion against him
and his securities, on giving him ten days notice. But the
plaintiff may in all cases move against,the Sheriff and his se¬
curities for the Deputy's default, just as if it were the default
of the Sheriff himself. Iu that case the Sheriff may have
judgment by motion against the Deputy and his securities, on
giving him ten days notice Act 1829, ch. 41.
Sec. 127. On,Indemnity bond. When the Sheriff takes a
bond from the plaintiff, to indemnify him for levying on dispu¬
ted, property, and. a suit is brought against him. by the claimant
» ot the property, and damages recovered, he may on motion re¬
cover the damages and costs so recovered of him, against the
obligors in-the indemnity bond. On this motion he should
be prepared, to prove,the,due execution of the borid, as the de¬
fendants have no,notice,.-and,no opportunity to plead.wo* est
factum. 1825,t.C. & N.A8..
777
$ec\. 128.. As in this last case,'. the execution) l6vied'on:tKe>
disputed property has' beemreturned,satisfied, to the extent. of."
the proceeds of the property, and as it has turned out by the
recovery of. the true owner,' that it was not the property of the
defendant, and the plaintiff has had it to pay for, it is evident¬
ly proper that he should have another execution.. He is there¬
fore allowed, on making affidavit before the Clerk of this re¬
covery against him, to have a Scire Facias against the defend¬
ant, to shew cause why another execution should not. issue.
Act.1848,' ch. 191.
» Summary Judgments by Sureties and Endorsers..
Sec. 129,. Where a judgment is recovered .against a surety,
in.any note; bond, obligation or recognizance, whetheri it be
for money, or for the prosecution of a suit, or a certiorari, or
for" the firm and costs, or for the appearance of a' defendant,
the surety may immediately have judgment on,motion against
the principal for the* ampun-t of the judgment against him, in¬
cluding costs. He need.not wait until he has paid the judg¬
ment. Nor does it make any odds that the judgment is against
1 lie principal jointly with himself. And he may. have his
judgfnent in any other gourt, that has jurisdiction of the case,,
as well as in the court in which judgment was rendered against
him.. For example, if judgment is recovered against, him be¬
fore a Justice of the Peace, he may. recover judgment by 'mo¬
tion in the Circuit. Court, But if he makes his motion in:
anbther court, he must produce a certified, copy of\the .record
of the judgment against, him.
If. it appears on the note op obligation that he is surety, there ■
is no use for a jury ; but if. that does not appear, a jury must
be empannelled to ascertain the fact, and he must be prepar¬
ed to prove before them,that he was surety.. Act 1809, C. & N.
(>53; 1850, ch,. 153.
Accommodation indorsers, that is, those who indorse notes
or bills of exchange, to accomodate the maker or other party,
are entitled to judgement, by motion against the party for
whose accomodation they endorsed the paper,, whenever a
judgment is obtained against them. A jury must be empan¬
nelled to ascertain whether the party applying for judgment,
was accomodation indorser., Act 1850, ch, 38.
In neither of these cases, doe,s the surety or indorser have to
give notice to the principal of his intended motion. It is deem¬
ed notice enough that he knows the debt is unpaid and that the
surety is liable to be sued. It is a fair presumption against a
debtor in default, especially when a friend is involved by his
default, that he k*. bps his eye upon the debt, and knows what
78
liis creditor is doing with it; especially will he know that he Is
prosecuting a suit against his surety.
Sec. 130. When there are two securities and judgment is
obtained against only one of .them, he may have summary
judgment against the other ifor his halt ot the debt. Or if
judgment is obtained against both, and one has paid the whole
debt, he may have judgment against the other for his half.
Or if he has not paid the whole, but has paid more than his
share, he may have judgment against the other for the excess.
There are other cases of summaiy judgments which we can¬
not notice. We will give the form of a judgment by a security
against the principal and leave the subject.
.Judgment on Motion, Security iy\ Pjiincipxl.
John Smith, i
vs. > Motion.
Jahob Rogers. »
Came the plaintiff by his attorney, and on his motion, it
appearing to the Court, that, on the 1st day of January 1850,
the plaintiff and the defendant, by their note of that date, prom¬
ised to pay James Hart, one thousand dollars, six months after
the date thereof, and after said note became due, the said Hart
brought suit and recoyered a judgment thereon in this Court a-
,gainst the plaintiff and defendant, on the 10th day of August
1851, for one thousand and fifty dollars debt and damages, and
twenty five dollars .costs; and the plaintiff alleging that he was
the defendant's surety in said note, and that fact not appearing
on the face of the note, there came a jury of good and lawful
men, to wit; A. B. C. & D., who being elected, tried and sworn
the truth to speak on said allegation of suretyship, upon their
oaths do say, that the plaintiff was the defendant's surety in
said note. It is therefore considered by the Court, that "tlw
plaintiff recover of the defendant the said sum of one thousand
and fifty dollars debt and damages, and twenty five dollars,
the costs aforesaid, and also the costs of .this motion.
Sec. 132. Since it is provided that when a surety is sued
jointly with the principal, he may show the court that he is a
surety, and have that fact stated in the judgment, and there! v
compel the Sheriff to levy the execution, first on the principal -
property, it will not often be necessary for the surety to tab*
a summary judgment.against the principal, except when he
sued alone.
79
CHAPTER VI.
Miscellaneous Matters.
Writ of Error Coram Nobis, and Supersedeas.
■Sec. 133. It sometimes happens that a court renders a judg¬
ment which is correct according to the facts which appeared,
but there exists a fact which renders the judgment void. For
instance, one of the parties was dead when the suit was com¬
menced; an infant appeared in person, or by attorney, instead
of appearing by guardian; the defendant was at the commence¬
ment of "the suit, a married woman, & her husband was not sued
with her. In these cases the representative of the deceased
party, or the opposite party, or the guardian of the infant, or
the husband of the wife* may have a Writ of Error coram nobis
by petition to the Circuit Court which rendered the judgment,
or to the Judge thereof. It is in fact, simply a petition to the
court, to set aside and annul its own judgment, on account of
the fact stated in the petition. The Court or Judge really is¬
sues no Writ of Error, nor any other Writ, unless execution
has issued, and then he simply directs the Clerk to issue a Su¬
persedeas to the Sheriff to stop the execution, and a notice to
the other party to appear, on petitioner giving bond and secu¬
rity for costs and damages. If the fact stated in the petition
is not admitted by the opposite party, an issue is made on the
petition, which is tried at the next term, when if the fact is
found to be as stated in the petition the judgment is reversed,
and judgment rendered against the plaintiff for all costs. If
the fact is found against the petitioner, the judgment is affirm¬
ed, and judgment rendered against him and his sureties lbr
the costs of the proceeding.
Sec. 134. In the cases above named, the judgement is void,
because proper parties were not before the Court, and yet it
does not appear from the record that they were not proper
parties. There are other cases, to which our law has extend¬
ed this remedy. For example, where a final judgment by de¬
fault have been taken against a party, and he shows by his pe¬
tition a satisfactory reason for not having appeared to defend
tie suit.
"So in the case of summary judgments, without notice to the
defendant, and in his absence. For instance, a security ob¬
tains such judgment against the principal, and the fact may be
that he is not security, or if he is, the principal has furnished
him with funds to pay the debt. He may petition the Judge of
the Circuit court to admit his defence, and to grant a Superse¬
deas, to stop the running of execution until the matter isJn-
8m
vestigatedi. Hie Judge directs m jiat to the Clerk to issue a.
supersedeas commanding the Sheriff not to proceed with the
execution, but to return.it, petitioner giving bond and security
for damages and costs., The Clerk issues with the supersedeas
a. notice to the plaintiff to appear.. At the pext Term the court
causes an. issue to be ntade up to try the alleged fact, unless
the petitionis, on motion of the plaintiff dismissed. The is¬
sue will stand for trial at the succeeding term.
* Tha'issues in these cases will be tried either by the court or a
jury, according to the nature of the facts. If they be such,
facts as it would have devolved on the court to try in the origi¬
nal case, the court may try them, in this proceeding to annul
the judgmefit.. This will comprehend all the facts involved in
a motion against the Sheriff and his sureties, and all that are
involved in a motion by a security against his principal, ex¬
cept the fact of suretyshipi. But the Court may take the ver¬
dict of a Jury on any of these contested facts.
"The Writ ofierror coram, nobis, or rather this proceeding of
ours in. the nature of a Writ of error coram nobis, will, not lie,
where the party, complaining, was properly before- the Court,
and. had a fair opportunity to contest the judgment. It will
not lie, for instance, on the ground that he has since discover¬
ed facty whiclnwould have been sufficient to secure the judg¬
ment iu his favor.. , 4
This proceeding jnust be also distinguished from, tire Writ
of Error, or the appeal in the nature of a Writ of error, by
which a case is taken from the Circuit to the Supreme Court,
to correct some error which appears on. the face of the record.
Thus, suppose a judgment by default is rendered against a man,
audit does not appear that process was ever served on him;
the summons is returned not executed, This would be mani-
ii'est error appearing on the record, and he would obtain a
writ of error from the Supreme Court, and have the judgment
reversed. But if the summons ivas returned executed, then
the record would show that he Was bound to appear, and the
Supreme Court could not reverse it. He would have to apply
to the Circuit Judge for the Writ of error coram nobis, 011 the
ground of some alledged fact, by which it would appear that
the judgment should not have been rendered.
See. 135. Proceedings to quash Execution. If the defendant
lias paid off the judgment, or it is otherwise settled between
t he parties, or if for any reason, the execution is wrongfully
issued, the defendant's remedy is, to address a petition to the
Judge, sworn to, either before the Judge, the Clerk of the court,
or a Justice of the Peace, setting out. the facts, and prayim>
that the execution be superseded and quashed.. The Judge*
8!*
on the petition, an order, called a Jiat, to the Clerk,
to issue the supersedeas, on petitioner's giving bond and
security to prosecute it with effect, or if he ' fail to do so,
that.he will pay all costs and damages that may be adjudged
against him. The proceedings are then the same as in the
case of a supersedeas issued in the above cases of Writ of
Error coram nobis. If. the facts alledged are found for the
petitioner, the execution is quashed.
Sec. 136. Dower. A widow is entitled to one-third of, all
the real estate of inheritance, both legal and equitable, of
which her husband died seized or possessed, tohold during her
life. It.is to be a third in value, not in quantity, and it is to
include the usual dwelling house and the appurtenant improve¬
ments, unless she agrees to take it of some other part of the
estate. If it would do the heirs injustice to give her the whole
.mansion house, a part of it only may be. allotted* to her. If
he provided for her by will, and she has not in twelve months
after the probate thereof, dissented from it in the County Court,
her right of dower is barred. So there are other cases in
which her right of dower will be barred or, forfeited.
She obtains her dower by either a written or verbal applica¬
tion to the Circuit, County or Chancery Court of the County
in which her husband last resided. She must give five days
written notice to the heirs or legatees who reside in the State,
and to the Executor or Administrator, of her intended applica¬
tion, specifying the day and Court in which she will apply.
Heirs and legatees who reside out of the State are not entitled
to notice, but instead of notice, they are allowed three years
after the date of the application, to move the Court for a re¬
hearing, if they are agrieved by the allotment of her dower.
If any of the heirs are minors their guardians should have no¬
tice; if they have none the Court is to act as guardian for
them. If a copy of the notice.is returned served by a Sheriff*
or Constable, that will be evidepce enough of service, but the
return of a private person must be sworn to, either in Court or
"before the Clerk.
At the time designated by the notices the application is made
either verbally according to the act of 1850, ch. 77, -or by peti¬
tion according to the old acts, (C. Sf N. Dower) If she ap¬
plies by petition, it must state 1st. The nature of her claim,
as, that she was the wife of the deceased, that he died intes¬
tate, or if he left a will, that she dissented from it in the Coun¬
ty Court within twelve months after its probate, or if she did
not, that the personal estate left her by the will has been taken,
to pay the debts of the deceased. 2d. It must particularly
specify the real estate nf which he died possessed; so that the
6
82
Commissioner may know of what land'they are to assign hef
dower, and that the heirs or devisees may, know of. what she
claims dower. 3d. It. must pray that her dower be allotted
her. If the application is made ig||aaUyv she ought to show
the same facts to the Court, and thglf should, appear in the
order appointing.Commissioners..
The defendants having, notice may answer the petition, or
the verbal application, denying her right to dower* either in
the whole or a part of the estate specified. They may shew
that she was not the lawful wife of the deceased, that she had
by marriage contract or long acquiescence in his will, or by
divorce, barred or forfeited her right to dower..
The Court proceeds summarily to hear and-determine tha
application, at the'first Term. On motion of either party it
may be submitted to a Jury to decide the disputed questions
of fact. If the Court decide in?favor of her application, they
appoint two freeholders or householders, unconnected with the
parties, who with the County Surveyor, or his deputy, shall be
Oommissioners to allot to-the widow her dower.. If the County
Surveyor is connected with the parties, the Court appoints an¬
other Surveyor- Within forty days after the Court adjourns,the
Clerk delivers to the Surveyor a copy of the order, and he no¬
tifies to the other Commissioners when and where they shall
proceed to perform the duty assigned them. They are to take
an oath before a, Judge or Justice, or the County Surveyor or
deputy, for the faithful and true performance of their duty: and
then they proceed to lay off the dower,.. If any of. the lands
lie in another County and it- so appears in the order, they are
to examine that, and take it into consideration in making.the
allotment. They are to make out their report, containing a
plat of the dower and describing its boundaries, and return it
to the next Term of the Court. The heirs or devisees may
then object to it, as an unfair and illegal allotment, and if the
Court is of that opinion, they may reject ify and recommit it
to the same Commissioners or appoint others. If the report
is confirmed by the Court, it is to be spread upon the records,
act 1850, ch. 77, (iV. Sf C. Dower.)
FORM OF PETITION FOR DOWER.
To the Circuit Court of Wilson County:
Your Petitioner, Jane Hart, states that she was the wife of
John Hart, who resided and died in Wilson County, on the 1st.
day of May, 1850, leaving your Petitioner, his widow, and
James Hart, his son and only heir. He died intestate, and
John Smith has been duly appointed Administrator on his
estate. At the time of his death he was seized inc. fee, and
83
possessed of one tract of land lying in said County, oh Spring
Creek, and bopMed as follows": Beginning at a white|oak on
the bank of saitlh'reek; running thence north 320 poles to a
cedar; thence east 320 poles to a sugar-tree; thence south 320
poles to a black-walnut; thence west to the beginning. She
prays that her dower may be assigned to her out of said land,
W. BLACKSTONE, Atfy.
Notice to the Heir and Administrator.
Messrs. James Hart and John Smith: On the fourth day of
August next, I will apply to the Circuit Court of Wilson Coun¬
ty, at Lebanon, to assign dower to me out of the real estate of
John Hart, deceased. 1 July, 1852. Jane Hart.
Return by the Sheriff: "Delivered a copy of the within no¬
tice to James Hart and another to John Smith. 10 July, 1852.
W. Scott, Sh,ff,',y
Answer to the Petition,
Jane Hart, 1
vs. , > Petition for Dower. Answer.
James Hart & John Smith. )
The defendants admit that the rites of matrimony were duly
solemnized between the plaintiff and the deceased John Hart,
but they aver that the said John Hart was at that time insane
and wholly incapable of entering into any contract. They
therefore deny her right to any dower out of his estate.
E. Coke, Atfy for Defts.
And the plaintiff avers that the said John Hart was not in-'
#ane, and she affirms the truth and sufficiency of her petition,
Brackstone, Atfy.
Decree where there has been no Answer;
Jane Hart, Y
vs. > Petition for Dower.
James Haft & John Smith. }
This cause came on to be heard on the petition, when it ap^
peared that John Hart died on the 1st. day of May, 1850, seized
in fee of a tract of land lying on Spring Creek, in Wilson
County, on which he resided at the time of his death, and
which is bounded as follows: (Describe it.) It appearing also
that the petitioner was his lawful wife and is entitled to dower
out of said land, and that on the 10th July, 1852, she gave writ-,
ten notice to James Hart, the son and only heir of the said
John Hart, deceased, and to John Smith, the Administrator on
his estate, of her intention to apply to this Court for said dow*
84
er on this day. It is ordered by the Court that John Long arid
Hiram Short, freeholders, (or householders,) ojf said County, be
appointed Commissioners, in conjunction with David Stout,
the County Surveyor, to allot and set off to the petitioner the
one-third part in value of said tract of land for her dower, and
report to the next Term of this Court.
Decree on the Report.
Jane Hart, Y
vs. > Petition for Dower.
James Hart & John Smith. )
The Commissioners appointed at the last Term to allot to
the petitioner her dower in the land of John Hart, deceased,
returned the following report: (Here insert it—see N. Sf C.
.750;) which not being excepted to, is in all things confirmed:
And it is further ordered that the petitioner pay the costs of
this petition, for which execution may issue.
Sec. 137. Partition. When any two or more persons own
land in common, either as heirs or purchasers, or in any way,
either one, or any number of them may file- a petition against
the others, or all may join in a petition, either to the County,
Circuit or Chancery Court, to have said land divided. Where
some only petition, they must either give the others ten days
written notice of the time when, and the Court in which the
petition will be presented, or else they must advertize three
times in some newspaper printed in the State, their intention
to present such petition, three months before it is presented.
This advertisement will be good notice to every body concern¬
ed in the land. At the time designated in the notice "or adver¬
tisement, the petition is presented. The defendants may an¬
swer the petition; and if there appears to be any doubt about
the petitioners' right to a share of the land, the Court cannot
order the partition; but he must bring an action of ejectment,
to try his right, and if he succeeds in establishing it, he may
then on petition have his partition. If the Court is patisfied.
that partition should be made, live Commissioners are appoint¬
ed by the Court, who are to proceed and divide the lands be¬
tween the parties in proportions of equal value; and in order
to do complete justice, they may charge a more valuable divi¬
dend with such sums to be paid by the owner thereof to the
owner of the dividend of inferior value, as will make his share
equal. The Commissioners appointed by the Court may di¬
vide all the lands in the State which are set out in the peti¬
tion, and may allot to different parties whole tracts in different
C unties, instead of dividing each tract.
They return their report to the next Term of the Court un-
85
der seal, snowing particularly what allotments they have made-
to each. There must be an order of the Court affirming the
report, and the report must be enrolled and registered in the
Register's office of the County where the land lies.
Partition cannot thus be made of equitable rights in land,
but only of legal rights.
Sec. 138. Partition of slaves and other personalty, may aho-
be obtained by any one entitled thereto, by petition to the
County, Circuit or Chancery Court. This petition is to be
served on the other, the Executor, Administrator1 or other dis¬
tributees and legatees where they are parties, 5 days before the
Circuit, and ten days before Chancery Court. It may be answer¬
ed, aud the right contested. If'it is not, the Court will appoint
suitable persons Commissioners* to make the partition But dis¬
tributees or legatees can file their bill only in the Chancery
Court to obtain an account of the estate against the Administra¬
tor or Executor, and then have a division. 6 Hum. 416.
Sec. 139. Sale for Partition. Where real estate belonging
to heirs or other tenants in common, is so situated that it can¬
not be partitioned, or where it is of such a description that it
would be manifestly for the advantage of the owners that" it
should be sold, any of them may by bill filed in the County,
Circuit or Chancery Court, against the others, have the estate
sold, or all may join in a petition and have a decree of sale.
If there are minors theylare to petition by Guardian or next
friend, or if made defendants, they must defend by Guardian.
A bill for this purpose is conducted like any other bill in Equi¬
ty. It is filed with the Clerk, bond and security given for costs,,
summons and a copy of the bill are issued and served by the
Sheriff on the defendants five days in the Circuit and ten in
Chancery Court, before the return. It is commonly however
a proceeding by consent of all, and then these regular steps
are waived, and if all do not join in the petition, they come
in and answer agreeing to the sale.
If there be any infants or married women concerned, the
Court first refers it to the Clerk to take evidence and report
whether the interest of the parties requires a sale, and what
would be a fair minimum price for the land. This is to save the
estates of minors and married women from being sacrificed.
If the Clerk reports favorably, the Court orders the sale to be
made by the Clerk, or any other man who may be appointed
Commissioner. He reports his sale to the next Term, when
the Court affirms it, and vests the title in the purchaser, if there,
be no valid objection to the sale. And it is the duty of the
Court to direct the proceeds of the sale belonging to minors
to be vested in other lands, in State Bonds, or in such other
86
way as shall be deemed for the best interest of the minor. O.
N. Partition. Meigs' Digest, Partition, 1850, ch. 185.
Sec. 140. Sale to pay debts. Where an Administrator *or
Executor-has exhausted the personal estate >ih the payment of
debts, andrthere are still unpaid debts against the estate, he
may file aipetition against the heirs in the County, Circuit or
Chancery Court of any County where any real estate of the
deceased may lie, to have the land sold to pay the debts in
arrear. A copy and a summons must be served on the heir
as in any other equity case, unless waived by him, as it usual¬
ly is, to save costs. He has aright however/to answer and
show that the personal estate has not been exhausted, or that
there are no remaining debts. ,The Administrator need* not
specify in his bill all the debts still owing, but should state the
amount of them as near as possible. The first step the Court
takes when the heir is properly brought before the Court, and
either answers or confesses the bill, is to refer it to the Clerk
to ascertain and report, 1st, whether or not the personal estate
is exhausted, and 2d, what debts still remain .unpaid. Every
•creditor should present his debt, and indeed the Administrator
should give all notice to do so. On the report of the Clerk,
land enough to satisfy the debt is ordered to be sold by him
or any other Commissioner the Court sees fit to appoint, afta
upon his report of a sale, if there appears no objection to it,
it is affirmed, and the proceeds appropriated to the payment
of the debts.
Any creditor may in like manner proceed by a petition
against the personal representative and heirs, to have the land
sold for the pajmient of his own and other debts, where the
personal estate is exhausted. The bill should be filed in be¬
half of himself and all other creditors, so that there may not
be a multitude of bills to exhaust the real estate with costs;
The proceeds of the, land when sold, should be divided among
all the creditors. 1 Meigs' Digest, 34. N. & C. 82—4.
Sec. 141. Sale of Slaves. An Executor or Administrator
may on petition to the County, Circuit or Chancery Court, have
an order to sell slaves, in the following cases: 1. Where it is
necessary to pay debts. 2. Where a division cannot be made
among the legatees or distributees without a sale; or 3. Where
it is for their interest to make such sale, as, if they are young,
and the slaves are old, or for any other reason may depreciate
in value. This petition is sworn to, and it is referred to the
Clerk to take evidence and report as to the truth of the cause*
alleged for the sale; and on his report the Court usually act*!1
<Q. & N. 82—3. • J
A Guardian also may by petition to either of said Court*;
■87
sell the ward's slaves or lands-to ;pay his debts. ?C. & N. 370,
230, act 1850, ch. 185.
DIVORCE.
Sec. 142. There are ten causes of . divorce from the bonds
ot matrimony by our laws: 1. Natural impotency at the time
of the marriage. 2. A former marriage existing at the time.
3. Pregnancy of the woman with a child of color at the time
of the marriage. 4. Wilful and malicious desertion or ab¬
sence of either party For two years, without reasonable cause.
5. Conviction of a penitentiary felony; (act of 1842.) G. Ma¬
licious attempt by one .to take the other's life. (1844.) 7.
Cruelty of husband to the wife, which may be by' any such
conduct towards her as renders it unsafe or improper for her
to cohabit with him, or such personal indignities as renders her
condition intolerable, and forces her to withdraw, or by aban¬
doning her, or turning her out of doors and refusing to pro¬
vide for her; or any other cruel and inhuman treatment. (1835,
sec. 19, & 1842, ch. 133, sec. 4.) 8. Where either is absent
two years, and the other marries on an apparently well ground¬
ed report of the absentee's death. The latter may, on return-
in, either have a divorce, or be reinstated in his or her marital
rights. (1835, sec. 8.) 9. Adultery of either party. 10. Where
the husband removes to this State and resides here two years,
and the wife without reasonable cause refuses to remove, but
wilfully absents herself for two years.
Indeed by the act of 1846, ch. 67, where any person, hus¬
band or wife, may have removed to this State and resided
here two years, with a good character, he or * she may have a
divorce, either for malicious desertion or absence, or for any
act which is a cause of divorce, whether committed in this
State or elsewhere.
No one can obtain a divorce for any cause who is not a citi¬
zen of this State, and who has not resided here one whole
year.
Sec. 143. Proceedings. The first step is to file a bill either
in the Circuit or Chancery 'Court, setting forth the facts and
asking a divorce alone, or a divorce and such other relief as
the plaintiff may desire, as, alimony or a part of the husband's
estate, if the wife fee plaintiff, or a change of her name, or
custody of the. children, or an injunction to restrain the de¬
fendant from making way with his property. To this bill an
affidavit must be annexed, sworn to before the Judge or Clerk
of the Court or a Justice of the Peace, that the facts are true,
and that the complaint is not made out of levity or by collu¬
sion with the defendant, but in sincerity and truth for the
88
causes stated in the bill. A prosecution bond has then to be-
given for costs and damages. Then the Clerk issues a sum¬
mons together with a copy of the'bill, which the Sheriff serves'
on the defendant, and returns as in other cases. When the
process is served on the defendant, the case stands for hear¬
ing at the return Term. (1842, ch. 137, sec. 3.) The defend¬
ant may answer the petition on oath, admitting or denying the
facts, "if he does not answer, it is taken for confessed. But a
confession does not in this case, as it does in all others, dis¬
pense with the necessity of proof; the temptation is too strong
to confess the facts, for the purpose of getting a divorce. The
plaintiff must always prove the charges made in the bill; wheth¬
er confessed or denied.
The evidence may either be by depositions or the viva voce
fcstimony of witnesses. The plaintiff should always have his
witnesses summoned to the first Term, if he expects process
to be served on the defendant. If the answer denies the bill
the plaintiff replies in general terms averring his bill to be
true. Either may have the facts submitted to a jury for trial,
if no motion is made to that effect, the Court determines both
the law and the facts.
If the plaintiff makes affidavit that the defendant is a'non¬
resident of the State, or that his residence is unknown, he may
without'" issuing any summons have publication made in a
newspaper stating the charges and prayer of the bill, and re¬
quiring the defendant to appear and answer it at the next
Term, or it will be taken for confessed. When so taken for
confessed it is to be heard as if process had been served.
Sec. 144. Decree If the bill is sustained, the Court de¬
crees a dissolution of the honds of matrimony. If the wife is
plaintiff, and asks alimony, it is referred to the Clerk to ascer¬
tain the amount and kind of the defendant's estate, and so
much of it as is deemed proper is decreed to the plaintiff.
The minor children are disposed of as the Court thinks best.
The Court is not bound as in law cases to decree the costs
against the loosing party, but may order either party to pay
the whole or any part of the costs as may be judged best.
Sec. 145. 'Vonsequences of Divorce. The parties are re¬
stored to the rights of single persons, except that the defend¬
ant divorced for adultery shall not marry the person with whom
the adultery was committed, during the plaintiff's life. If the
wife is plaintiff she is restored to the absolute dominion and
enjoyment of all her real estate, and all the personal estate
and choses in action she may have gained by her labor,, or
may have been given to her, and that she may be entitled to
by succession to an intestate. If the husband obtains the di-
89
yorce, all his rights to any real or personal estate, or choses
inaction, which the wife was entitled to at the time of the di¬
vorce remain. C. & N. 260, sec. 11—12.
Sec. 146. Attachment in Equity. A creditor, whether a citi¬
zen of this State or not, may file an attachment bill against
any non-resident or absconding debtor, wdio has any property
in the State, whether legal or equitable, or has any debts ow¬
ing to him by a resident of the State, whether due or not due.
He or his agent swears to his bill before the Clerk, Justice or
Judge, and presents it to a Judge or Chancellor, who gives him
a fiat to the Clerk to issue an attachment on plaintiff's giving
a bond as in case of original attachment, that is, in double the
amount of the debt, conditioned to be void if he shall pay all
such costs and damages as may be awarded against him, if he
fail to prosecute the bill with effect. See sec. 7.
The Clerk thereupon issues the attachment, and the Sheriff
is to levy it on so much property as will be sufficient to satisfy
the debt. If it is perishable property the Court may order it
to be sold and the proceeds paid into Court. It is not necessa¬
ry that a judgment should be first recovered in a Court of law;
to enable the creditor to sustain this bill. If any debts are
attached, the debtor is to be made a defendant in the bilL
The only difference in effect between this and the original
attachment is, that in this, equitable estates and debts not due
may be attached. If debts not due are attached, no final de¬
cree can be rendered until they become due. A debtor by any
assignable instrument is not to be decreed to pay the same,
unless it is delivered up or cancelled, or he is indemnified,
against any future liability on it.
The defendant is to have notice by publication in some news¬
paper to appear and defend the bill. The order of publication
may be made by the Clerk when he issues the attachment.
But no" decree is to be rendered until the second Term after
the bill is filed. The decree is rendered for the whole debt,
and if the property attached is not sufficient to pay it, the
plaintiff may have his execution for the balance, and levy it
on any other property that may be found. And the Clerk may
summon any one as a garnishee to answer as to his indebted¬
ness to defendant, and a decree may be rendered against him
in favor of the plaintiff, for the amount of his debt. The de¬
fendant may replevy the property attached at any time before
•it is sold, by giving security in double the amount of the debt,
conditioned to pay the debt and costs, if the Court should so
decree; or in double the value of the property conditioned to
pay the value thereof and interest, if the Court should so de¬
cree, This bond is to be payable to the plaintiff, and given to?
90
tlie Sheriff, if given before the attachment is returned, and to
the Clerk, if after it is returned; and the decree is to be ren¬
dered against the defendant and his sureties for the amount
for which they have thus become bound, if the plaintiff re¬
covers so much. 1836, ch. 43; 1838, ch. 166; 1839, ch. 43.
An accommodation endorser or a surety, may by the same
act of 1836, sec. 8, file a bill against his principal who is about
to remove, or is absconding, and carry his property out of the
State, and in the same way attach his property, and this wheth¬
er the debt is due or not. But if the defendant will give bond
and security to the plaintiff indemnifying him against his lia¬
bility as security, either before the Court in session or the
Clerk in vacation, the attachment will be thereby discharged.
MANDAMUS.
Sec. 147. This is a writ which issues in the name of the
State, from a Superior Court, to some officer, or inferior Court
or corporation, commanding them to do something which they
ought to do, and which it is alledged they refused to do, and
for which the plaintiff has no other adequate specific remedy.
In most cases it issues from the • Circuit Court. As the Su¬
preme Court has only appellate jurisdiction it cannot issue a
Mandamus except to compell the Circuit or Chancery Court
to do their duty. The Circuit Court will issue the writ to com¬
pell officers and all inferior Courts to do their duty when there
is no other specific remedy. Thus, if the County Court should
refuse to induct an officer who was duly elected and offered
bond and security, and to take the oath; if a Register were to
refuse to register a deed, or the County Court Clerk to issue a
marriage license.
You obtain the writ by addressing a petition to the Circuit
Court, stating the facts, and praying the writ. The petition
must be sworn to. The Judge, if in vacation, writes his Jiat
on the petition, directing the Clerk to issue a Mandamus, on pe-
tioner giving bond and surety to prosecute the Mandamus
with effect, or if he fail, that he will pay all such costs and
damages as may be awarded against him. On this bond be¬
ing given the writ issues. It is an alternative Mandamus, the
defendant being commanded to do the thing, or appear on the
return of the writ and shew good reason for not doing it. This
writ is made returnable to the next Term of the Court. The
writ should be delivered by the Sheriff to the officer to whom
it is directed. It may be delivered and proved to have been
so done by any person. There is usually some third person
concerned in the matter, who alone is interested in it. If, for
example, the County Court has refused to induct the petition-
01
er into the office of Clerk, it generally happens that some
competitor is inducted. In all such cases, it is the duty of
the officer v to whom the Mandamus issues, to notify to
such person, that the writ has issued and when it is returna¬
ble, and the person thus interested may appear at the return
of the Writ, and be admitted defendant on giving security for
costs. If it appear to the Court that his residence is unknown,
or that he resides in another State, the court will order publica¬
tion to be made for him to appear at the next term and answer
the petition. On the return of the writ the defendant, either
the officer himself or the person interested, must answer or
demur to the petition, or else it will be taken for confessed. 'If
the, answer denies any material fact stated in the petition, it
wilL*be submitted to a jury to try the issue. If the issue is
found for the petitioner, or the petition taken for confessed, or
a demurer to it is overruled, the Court orders a peremptory Man¬
damus, which commands the officer absolutely to do the act
which the petition prays for; and also gives judgment for costs
. against the defendant. If the decision is against the petition¬
er, his petition is dismissed and judgment rendered against
him and his securities for costs. 1831, ch. 51.
HABEAS CORPUS.
Sec. 148. When a person is unlawfully imprisoned, or re¬
strained of his liberty, either in jail or any where else, he may
have a Habeas Corpus to set him at liberty. We have no
statutes regulating the practice, but we have by usage estab¬
lished our practice in accordance with the principles of the
common law. The prisoner addresses a petition, sworn to, to
the Judge of the Circuit Court, stating his imprisonment and
the cause of it, and 4he facts which render it unlawful. On
this the Judge issues a Habeas Corpus in the name of the
State, addressed to the person who holds him in custody, conj-
manding him to have his body before the Judge at a certain
time and place mentioned in the writ, together with the cause
of his detention. The writ is made returnable at the designa¬
ted time and place. It may be delivered by the Sheriff or any
other person, to the person to whom it is directed, and if he
fails to bring up the prisoner as directed, the Judge may issue
an attachment against him for contempt. This writ would
command the sheriff to take his body and have him before the
Court to answer for the contempt. It is indeed a high crime
for which he may be indicted, and severely punished by fine
and imprisonment.
When the Habeas Corpus issues, either party, the prosecu¬
tor and prisoner in a criminal prosecution, and the prisoner
92
and whoever is holding him in custody, in other cases, may
obtain subpoenas from the Judge or any Justice, directed to
the Sheriff or any Constable, for witnesses to appear on the
return of the Habeas Corpus, and give evidence. The party
holding the prisoner returns with the writ the cause of his de¬
tention. If it is insufficient the Court discharges the prison-,
er. If it is sufficient, the Court will hear the evidence on both
sides as to the truth of the alledged cause, and discharges or
remands the prisoner according to the result of the investiga¬
tion. In the case of a prisoner in jail for a crime, the Court
will sometimes neither discharge or remand him, but admit
him to bail, that is, take bond and security for his appearance
at Court, to answer the charge. This is always the case where
the Judge thinks the prisoner guilty of a bailable offence. , A
parent or guardian may have this writ for a minor child or ward
improperly detained by another. Meigs1 Digest, Habeas Cor-
jms. N. & C. 374.
CHAPTER VII.
Suits before Justices—Appeals to the Circuit Court—
Certiorari.
Sec. 149. Ordinary suits before Justices' of the Peace are
commenced by a summons called a Warrant. No security
for costs is necessarily to be given, but the Warrant may issue
simply on the personal application of the plaintiff, or on his
written order, or if an officer applies for it, on the production
of the claim put into his hands for collection. But the Justice
may require the plaintiff to give security for the prosecution of
the suit, or to take the pauper oath. 1852, ch. 260, sec. 2. This
he will generally do when it is likely to be a litigated case.
The Justice is not allowed to sign a Warrant until it is filled
up, so that he cannot deposite blank wmrrants with attornies
to issue.
THE WARRANT.
The State of Tennessee.
To the Sheriff or any Constable of Wilson County.
Summon John Smith to nppear before me or some other Jus¬
tice of said County, to answer James Hart of a plea of debt
due by note, for a sum under five hundred dollars This 1st
day of May, 1852. Le Roy Cage, J. P.
The style of this writ is the same as that of the court write
The address is to the Sheriff or any Constable. The latter is
93
the proper executive officer of the Justice's court. But "the
Sheriff or his regular deputy may execute a Justice's process.
For want of a Constable, or in his absence, the Justice may
direct his precepts to any individual not a party, who shall be
bound t#execute it in the same manner and under the same
liabilities as the Constable would be. The command is the same,
"summon." The tribunal. The officer is not directed to sum¬
mon the defendant before any particular Justice, but
1. The warrant is to be returned to a Justice of the District in
which the defendant resides. This is the general rule; but
2. If both Justices of the defendant's District are incompetent
by reason of kinship or interest; or if there be no Justices
in the District, or they are absent, then the warrant is to
be returned to some competent Justice in an adjoining Dis¬
trict.
3. If a competent Justice of an adjoining District, resides
nearer to the defendant than any Justice of his own Dis¬
trict, it may be returned before the former.
4. When two defendants reside in different Districts, it may
be returned in either, except where the maker and endorser
both are sued, and then it must be returned in the maker's
District.
5. If it is a warrankfor debt, it is to be returned in the plain¬
tiff's District, unless the defendant will indorse on the
claim that he acknowledges it and claims no offsetts. But
in this case .if the plaintiff resides in a different county, it
shall be returned in the District where the defendant re¬
sides.
6. Where the defendant does npt reside in the connty in which
the warrant is served, it shall be returned in the District in
which it is served.
7. By consent of parties it may be returned before any Jus¬
tice. N. & C. 432, sec. 9. 1837, ch. 18.
There is no time designated in the warrant for the defendant
to appear, nor does the law prescribe any time for the return
of the writ, The officer is to appoint the time when he finds
the defendant and serves the warrant. When a security in a
note is sued before a Justice, and the maker resides in another
county, he may when he issues the warrant against the surety,
issue a counterpart against the maker, to the county in which
he resides, in which case the counterpart is to be returned be¬
fore him within a month from its issuance. 1850, ch. 1(3, In
this case it would seern to be necessary that the Justice should
make the original and the counterpart both returnable before
him on the same day, to avoid the fatal confusion, of having
94
the two defendants summoned before him on different days.
There is no place appointed for the defendant's appearance,
as the Court-house is, in the summons returnable to the Circuit
Court. The officer who serves the warrant appoints the $Lace,
as, at the Justice's dwelling house, or office, or other place* It
is the duty of every Justice to appoint one day in every ^onth
when he will attend at his usual place of residence d^some
other convenient place in his District, to hear and determine
cases. But still he may adjudicate cases at all other times
and places. C. &N. 431. *
Sec. 150. The Action. There are no forms' of action be¬
fore Justices. All that is necessary is, that the warrant should
briefly state on what account the suit is brought, as, in a plea of
debt due by note, or by settled account, or unsettled account, or a
plea of damages for failing to deliver corn, or build a house, or to
do any thing else according to contract, or for a breach of war¬
ranty in the sale of a horse, or fcr fraud in the sale of ahorse,
or for an assault and battery on the defendant, or for killing
his hogs, or for destroying the timber en his land. There is no
time or place or other details of faets as in a declaration. It
is sufficient that the warrant points the defendant to the gen¬
eral nature of the charge against him. If it does not it may
be quashed for its vagueness. 6 Hum. 264, 2 Meigs Dig. 653.
Sec. 151. The amount claimed. The warrant must show that
the amount claimed is within the jurisdiction of the Justice.
But it need not state the precise amount claimed; it is suffi¬
cient that it state that it is not over a certain amount, the max¬
imum of the Justice's jurisdiction on that head.
Sec. 152. The date should always be the day of the issu¬
ance of the writ. The signature is by the Justice. He will
be known to any Justice before whom the warrant is returned,
as a Justice, and even if "J. P." or Justice of the Peace were
omitted the signature would be good, as he would be recognized
as a Jdstice, and on the face of the writ it appears to be an
official act. Nor is a seal, believed to be necessary to a sum-
mons, although it is necessary to a State's warrant, whereby
the defendant's body is taken and he is held a prisoner. No
seal is necessary to cur Court process; it is simplv to be signed
by the Clerk.
Sec. 153. Return. The warrant is next delivered to the
officer, who is to proceed with diligence and serve it, that is,
summon the defendant to appear before some Justice at a
given time and place, when and where he must return it, show¬
ing what he has done: Thus, "came to hand 1st May, 1852:
Executed same day, and set for trial before LeRoy Cage, J. P.,
at his dwelling house, on the 5th of May, 1852. S. Ross, Const."
95
It has been determined that the judgment against the de¬
fendant is not void, although the, return does not show before
what Justice:, or at what place, the case was set for trial. It
is presumed the defendant was summoned before the Justice
who rendered the judgment, especially when he is the same
who issued the warrant, and it commanded the officer to sum¬
mon defendant before him or some other Justice; and it is also
presumed he was informed by the officer of the place of trial.
5 Hum. 306.
Sec. 154. Trial. On the return day ©f the warrant the
parties, either in proper person or by their agents, must appear
before the Justice, within the usual business hours, and the
case stands for trial immediately. If the plaintiff sues on a
written contract, he must produce it.. He is not bound to
prove itr unless the defendant denies it by a written plea of
non est factum, on oath.. There are no pleadings-—the plain¬
tiff files no declaration—the defendant no plea, except the plea
of non est factum. If the plaintiff sues on an account certi¬
fied from another County orj State, as mentioned in sec. 82, he
has no other evidence to adduce,, unless defendant denies it on
oath. In all other cases-the plaintiff must prove his cause of
action as in Court. As there are no pleadings, nothing is
admitted, but the defendant may take advantage of every de¬
fect in the plaintiff's proofs, and introduce every defence that
could be pleaded in the Circuit Court. Either party may make
the other testify to facts not provable by any witness, by peti¬
tion, sworn to, and filed with the Justice, who makes an order
on the party to answer it; a copy is to be served on him one
day before the trial. If he answers, the answer is evidence.
If he does not, the petition is confessed and becomes evidence..
1850, ch. 53.
As to those matters that conld be only taken advantage of
ih a Circuit Court case, by dilatory plea, the defendant may
take advantage of them by motion to quash the warrant, at
any time in the process of the case. But if he does not make
the objection before the Justice, he cannot do so afterwards,
when the case may go to the Circuit Court by appeal or certio¬
rari. But if he has made the objection and the Justice has
overruled it, he may make the same objection in the Circuit
Court.
As the parties have to come to trial at once, they are allow¬
ed to obtain from the Justice subpoenas for witnesses, in the
same or any adjoining county. So they may issue commis¬
sions to take the depositions of witnesses who reside out of the
State or County. If either party is not ready he may continue
the case to some other day, to be designated by the Justice, by
96
verbal affidavit. So the cause may, by consent, but not other¬
wise, be transferred to another Justice for trial.
The law of amendments applies to the proceedings before
Justices.
Sec. 155. Non-suit and judgment by default, aud new trial.
If the plaintiff fails to appear and prosecute his suit, judg¬
ment is given against him for costs without any formality.
This sort of a judgment will Operate as a non-suit, and he
may commence suit again. If the defendant fails to appear,
the plaintiff may on proof of his case, have judgment, which
is in the nature of judgment final by default. When the cause
is tried by the Justice, and judgment entered by him, and the
parties leave, he cannot give a new trial. His Court is over
whenever he pronounces and enters his judgment, and the
parties are dismissed. It is true he may, like any other Court,
take an advisare, that is, take time to consider of the case, un¬
til a future day, but when he then decides it, his decision is
final. No new trial can be granted, nor can the plaintiff bring
a new suit; if the decision is against him.
Judgment is entered on the warrant thus:
"Judgment in favor of the plaintiff against the defendant
for $200 debt, and $30 damages and the costs. 20th May,
1852. LeRoy Cage, J. P."
Besides this, the Justice is required to keep a docketin whieh
he enters his judgments. N. & C. 552—5.
Sec. 156. Stay. The defendant is allowed two whole days,
exclusive of Sundays, after the rendition of the judgment, to
stay the execution; that is, to give security for the payment of
the judgment, if the issuance of the execution is suspended
eight months. The stay is entered thus: "Stayed by John
Den. LeRoy Cage, J. P." Or thus: "John Den stayer." This
is considered as confession of judgment by the stayer. And
no one can be bound as stayer, unless the Justice enters his
name in his presence and by his direction, or unless he gives a
written order to the Justice to enter him as stayer. After two
days no stay can be entered without the plaintiff's consent.
N. & C. 278, sec. 4.
If the principal in a note and the security or endorser are
sued, the Justice can enter no one as stayer for the surety or
endorser, except by the consent of the surety or endorser in
writing, or in the presence of the Justice. Without such con¬
sent, the surety or endorser, is exonerated from the payment
of the judgment, unless the principal and stayer both become
insolvent. N. & C. 278.
If the plaintiff will make oath, that the defendant is about
to abscond, or remove himself or his property out of the County
97
where he resides, the Justice may Issue execution immediate¬
ly, but still the defendant may stay it within two days; and that,
will supersede Jhu execution, 1852, ch. 177.
If before the stay expires^ the plaintiff will' make oath be¬
fore the Justice, that he believes he1 its in danger of loosing his
debt, on- account of the removal or insufficiency of the stayor,
and give twp days written notice to the defendant, that he re¬
quires oth%s^cu^aty,'he may have his execution immediately,
unless, tFfe'defendant willjpstify his1 stayor, or give othersecu-
rity. 'N.S:;'2^,;f M >■/,; , ' . .
If the stayor himself becomes apprehensive that he. will
have to pay.the judgment, if the execution is not issued untiL
the stay is out,' fye. may, on making affidavit of that fact, before
the Justipe, and."giving' two days notice to the defendant,, of
his intention to do so, demand the immediate issuance of the
execution, urtless the defendant Mil release him by giving
other good security for the stay. N. & C. 685.
Sec. 157. Execution. If the •judgment is not paid when
the stay expires, the Justice, on demand of the plaintiff, must
issue execution against the'real and personal.property- of the
defendant and the stayor. The officer rfiust make it out of the
principal's property, if he can find any, and when that is ex¬
hausted, out of the stayor's. NHe is to proceed as a Sheriff does
on a cOUrt execution. (See sec. 114 &cf) except that he advertises
the sale at one public place in the captain's company where
the defendant resides, and at two places,in the company where
the sale is to be made. N. & C. 298. If he levies on land, he
cannot sell that, but must return the Execution to the Justice,
and he files,mil the papers in the Circuit Court, and if the court
finds the proceedings vhlid, the land is condemned, that is, or¬
dered to be sold by the Sheriff, to satisfy the judgment. The
Warrant, Judgment afid. Execution, and'the returns on them,
are all spread upon the record of the Court. A Venditioni Ex¬
ponas, then issues to the Sheriff, commanding him to sell the
land. E, &-N.' 298 * .
If no property can be found by the Officer, he may summon
any person as garnishee, in writing, to appear before the Jus¬
tice, to answer'on oath, what he owes the defendant, or what
effects of his lie'has in his hands,: or what debts are owing to
him by any other person, or. what effects of. his, he or any other
person has. If the garnishee fails to appear, a judgment nisi
is taken against him; that is. the plaintiff recovers his debt of
him, unless lie appear, and shew cause to the contr^y. A no¬
tice or Scire Facias then issues, and if he do not then appear
and answer on oath, the judgment is made final. When he
answer a denying indebtedness, or the possession of effects be-
9$
longing to defendant, he is discharged, at the plaintiffs1 coft
If he admits a debt, judgment is given against him for it. If
'he admits effects in his possession,,he is ordered to deliver thfem
to the officer. IMie discloses effects or debts in the hands of
others, the Justice issue's a summons to^hmn to appear and'an-
svver. C. <S^ N. ,362.—^ N. S. 317ffoVforms, v ' \
Sec. 158. ■ Wtot'Ju&ice'tissue,,:fycf ^^Justice who "has
the custody of the judgment, is the one by'^^IramExecution is
to-issue, and to wKom'it is to be returned, tem¬
porarily absent, any other Justice of dhe co^^/htay issue ex¬
ecution on his judgments. If a Justice absents ""himself from
hiS District three months, he "must deposit his papers with the
nearest Justice untilhis return! If he resigns he must deposit
them with his successor, or with the nearest Justice of the Dis¬
trict until a successor is ^elected, or with the nearest of the
county,- if" there be none in the District. His - administrator
must do the" same, when he dies. C. &l N". 434.
Sec.- 159. 'Return of the.Execution. The officer is bound to
return the execution within thirty days. If he fails to do so,
the plaintiff may, on giving him five days noticb, have judg¬
ment, on motion before the Justice, against him and his official
securities, for the amount of the judgment, and 12^ per cent
damages, unless he can shew sufficient reason for not making
the return. C. & N. 299. A bare bringing back of the writ,
without showing what he has done under it, would doubtless,
be considered no return. A return is a response to the com¬
mand of the writ, showing that he has obeyed the command
hy making the.money, or some good reason why he has not.
So if an officer collects the money on the execution, and fails
to pay it to the plaintiff; or if a claim-is put into his hands for
collection, and he collects it without a warrant, judgment or
execution, he and his-securities are liable to judgment, on mo¬
tion before any Justice, for the amount. 6ollected, and 12£ per
cent, per annum, interest oridt. In either case five days no¬
tice has to be given, of "the-time, place and Justice, when,
where and before whom the motion will be made. N, S. 105.
Sec. 160. Execution out of the county. Alias. A justice, can¬
not issue an execution to another county. When he issues
an execution to an officer of his own county, the plaifttih' may
obtain the certificate of the Clerk of the County, that he was a
Justice of the county, when he issued the execution, and when
he rendered the judgment, (or that the Justice who did render
the .judgment, was then a Justice. On producing this certified
execution to a Justice of any other coupty, the latter may is¬
sue an execution, returnable before him, and it may be levied,
on any real or personal property of the defendant in that coi^|-
99
tf. C. & N. 295, 1852 ch. 181 > see. 3, p. 261.)
Justices have the same power to issue alias & pUrics execu¬
tions that cotirtshave. C. & N. 295, Sec. 6. ^ But he is not to
issue an alias until the former is returned, or "affidavit is rnadp
of its lossj unsatisfied. N. & C.432, Sec. 7.
Sec. 161. Scire Facias. Justices tunyissue. Writs of Scire
Facias,,in all cades where necessary;- €. • For forms*
see' N. S. 325-6* When a .defendant; against whom a judg¬
ment has been rendered by a Jfistice, dies before it is. satisfied,
the Justice may issue .a Scire Facias to any county in the State,
against the representative, of. the deceased^ to revive..the; j udgT
rnent. N-. S: 193. ■'v •« * :;' .' , ;
Sec. • 162..... Summary JudgmentsBesides the cases of judg¬
ments against officers,v before mjentjonediin Sec. 1.48, he may
render judgment on motion in favor of a surety , against his
principal, Wheh he has b,een compelled, to pay off the judg¬
ment against the principal. But it must. be the Justice who
rendered the judgment. C. & N. 686/ ' -y
Sec. 163. Lien. A Justice's'execution is no lien on pro¬
perty, until it is levied. It is not a lien'from its teste, as a court
execution is. . . ■ (
A judgment in a court,of record, obtained in the county
where the defendant resides, is. p, lien pn all his lands in the
State, provided execution is taken "opt and the land sold within
one year from the date of the judgment. If "rendered in any oth¬
er county, it is not a lien until a certified copy of it, is register¬
ed in the county where the defendant resides. C. & N. 419.
But a Justice's judgment is- no lien fit all on any sort of pro¬
perty • ; . "
Sec. 164. Attachment. ' In all those cases where an attach¬
ment, returnable to court will lie, a Jtistice may* issue an at¬
tachment as original process, returnable'before himself, when
he has jurisdiction of the subject. 1852, ch/177: N. S. 15 sec 7.
The proceedings to obtain the attachment are the same. When
returned levied on property, the! Justice proceeds immediately
to trial and judgment, except, in the case of a non-resident,
when he must* stay fhe proceedings from six to twelve months,
and require the plaintiff' to give the defendant notice by adver¬
tisement,'of the time appointed for his appearance. N. S. 15.
When the attachment is levied on land, the Justice renders
judgment, and returns the papers to the Circuit Court, and that
coiirt, proceeds to order the ssale of the land for the satisfaction
of the judgment. N. S. 15." -
If any ©f the property of a non-resident is perishable, the
Justice may order it to be sold on six months credit. N. S. 16.
l'OO
Sec. 165, Replevin'.. Where the amount in controversy does;
not exceed fifty dollars, a Justice has jurisdiction in replevin.
The action is commenced and conducted as in the Circuit court,
except that there are no* pleadings. If the plaintiff fails to
give up ,the property when judgment 'goes against him, the
Justice, renders-judgment against him aM his sureties, fordou-
dle the value thereof." 1891, .eh. 32..V 4 . ,,,
Sec^ i;66- Rprcille Entry and Detainer. We have already
seen £hat ah auction of forcible entry and detainer,!jmay, be
commenced either in the Circuit Court or before a JustifcevN.
rS. 165, Iht. In either ease the plaintiff must give good secu¬
rity for the costs.- N. &i,C. 347. When the suit is commenced
before a Justice, the' first step now, after giving security, is the
warrant, which* describes the land and the plaintiff's estate in
it, and-asserts thaftffe defendant forcibly .entered on and' de¬
tained it. C,-& N. 343: N. S*. 165.. The warrant is to 'be-ser¬
ved on. the defendant six days before the trial, by citing, him to
appear at a certain, time and place before three Justices to an
swer the complaint. N. S. 165, The defendant may either
plead not guilty, or that he has been three years iii peaceabli
possession, of the land. If he does not appear, the-three Jug
tices are to try the case as if he had pleaded not guilty. 1.
they find the defendant guilty , the judgment is, that he restore
the land to the plaintiff and^my him the costs. If they decide
■for. the defendant, they simply give judgement for costs against
the plaintiff and his sureties. - /
Sec. 167 r Appeal, Certiorari and Restitution. Either party
who is disatisfied with the decision of the Justices, may appeal
to the Circuit Court on giving bond and security, for costs and
damages. Act 1&50, 237. If he does not appeal within two
days after the judgment, he may within twenty days, apply for a
Certiorari to take thy case "to the Circuit. Court; in. which case
lie must in his petition show that the judgment was wrong-
If it is not thus removed to the Circuit Court, in twenty days a
Writ of Restitution issues commanding'the Sheriff or Consta¬
ble to restore the possession of the land to the plaintiff.
On the trial pf the case in the Circuit Court, if the plaintiff
succeeds, he recovers of the defendant; not only the possession
-of the land, but reffts for the time the defendant has retained it
J his action is commenced in the Circuit Court just as any
•other action is, and the plantiff recovers rents, when he suc¬
ceeds. The writ is in substantially the same form as wK« is¬
sued by a Justice, which will be seen in Nicholson's Suppte-
me m£ 165, As the writ contains a description of the land and
the injury, a declaration is not necessary, but the court atsy
dire ct a declaration and other pleadings, if they think it
101
»
*cessary,to show the issues more precisely. And -the cause
stands for trial at the return .term, when the , issue is formed.
N. S. 167, Sec. 8. ...
APPEAL.
Sep. 168. If either pa?ty is dissatisfied with the decission
•of the Justice in any civil case, he may at anytime* appeal to
the Circuit Court, on giving an^appeal bond with good security,
as follows: . , ' '
" We$olin Den and John Smith acknowledge ourselves in¬
debted' to James Hart in the sum" of two hundred, dollars, to be
void, if the said John Smith shall successfully prosecute an
.appeal this day taken by him to the next Term of' the Circuit
Court,for Wilson county, from a.judgment'rendered against"
him in favor of said Hart Tor $160 and costs,'on the 21st inst.^
by Leroy Cage a Justice' of said county, or if he fail to' do so,,
shall perform the judgment of said court. 22nd, May, 1852..
Test * t JOHN DEN, ' [seal,]
Leroy Cage, J. P. ' JOHN SMITH, [seal.] \
Two whole days, Sunday excepted, is allowed for taking the
appeal; after which time no appeal.can be taken. The Jus¬
tice is to Pnter on his papers the prayer and grant of the ap¬
peal, thus: ' . * *■ ■'
The defendant prays an appeal to 'the Circuit Court, and
having given bond,'it is granted. 22nd, Mqy, 1852. .
LEROY .CAGE, J. P."
This appeal suspends the Justice's judgment, .and he Can do
nothing morein the case, unless the parties .compromise it be¬
fore the Justice returns the" papers to Court, and inform him of
the compromise by writing, signed by both of them; in which
case he may proceed.to. issue^ execution, or do . whatever else
the terms of the compromise may require. C. N. 175.
Sec. 169. The Justice is to transmit • the whole of the pa¬
pers in the case, to the Clerk of the, Circuit Court, within the
two first days of the next terrm '.SJiould Ke fail to do. so, the
appellant should see to. it, .that they are brought-up during the
term, in time to have atrial of the case, otherwise the appellee
may bring them up, and have the judgment of the Justice af¬
firmed. C. & N. 92. If the Justice files them during the term,
the appellant must appear and prosecute his appeal, other¬
wise it will be dismissed, and the Justice's judgment shall be
affirmed against the appellant and his securities, and if he be
defendant, the plaintiff shall recover against liim and his sure¬
ties, the original judgment and 12£ per cent per annum iu-
^rest on it. C. & N. 94.
102
When the cause is called: on the docket, if the plaintiff £ails
to appear, the defendant calls him to come into court, and
prosecute hi& suit against the ,defendant, Or he will be non¬
suited. If the defendant fails t6 appear the plaintiff calls him
to come into court, and defend the suit (or' prosecute his ap¬
peal, if he be appellant) or. judgment by default will be taken
against him! ' • , ' ,
- Sec. 170. If the appeal is taken five days before the com¬
mencement qf the term of the Court, it stands for trialmt t the
first Term; and the Justice may issue'Subpoenas for witnesses
to attend the Court. If taken within five days of the term,,
the Justice must file the papers,.but the cause is to be contin¬
ued until the next Term. C. & N. 90, Sec. 54. ' k
The cause stands in the Circuit Court just as it "stood before
the Justice, the plaintiff is still plaintiff and the'defendant be¬
low is still defendant, no matter which is- appellant or appellee.
The Attorneys should first examine the papers carefully, to
see what sort of, case was before the Justice, what judgment
he reudered, whether he had jurisdiction, whether an appeal
was taken, &'c. !
Sec 171. As to jurisdiction. The jurisdiction of all tribu¬
nals is either original or appellate. Original jurisdiction is the
right to take cognisance of a case in the first,instance. When
a suit may be commenced or originated in a Court, that Court
has original jurisdiction qf.it. Appellate jurisdiction is the right
of any tribunal to take cognizance of a case whieh has been
commenced before another tribunal, whether it be1 transferred
from the latter to the former by appeal, writ of error, certiora¬
ri, or other process. The jurisdiction of Justices, is altogeth¬
er original, and the Circuit Court has appellate jurisdiction of
all cases finally decided by them.
Jurisdiction is also either exclusive or concurrent. When a
certain tribunal can take cognizance of a particular case, & no
other can, it has exclusive jurisdiction of that case. But when
different tribunals may take cognizance of , the same case, then
they have concurrent jurisdiction of it. For example, the Cir¬
cuit Court cannot' take original jurisdiction of an action of
debt on a note under one hundred dollars ; Justices, therefore,
have exclusive original jurisdiction ofsuhh cases. But on notes
for any sum between one & five hundred dollars, you may sue ei¬
ther before a> Justice, or in the Circuit Court; they theref ore, have
concurrent original jurisdiction of such cases. For any'sum
under fifty dollars a Justice has exclusive original jnrisdietion;
Meigs Digest, 643. But in all these cases the Circuit Court
has exclusive appellate jurisdiction.
103
To make the Judgment, of a Cpurt valid, it mustiest drily
have jurisdi^OB^o|>«sthe; -si^.eet^Mt also" of the perSpn. The
-lavy defines.of which h tribuh&i ^shall iiave juris¬
diction!1 itt' our Gourtvsy&temj the Circuit Court s has jhrisdic-
tion of "all cases (or subjects,) where the jurisdiction is hot
conferred upon'another tribunal. "t It is therefore the Court. off
gcneraT jurisdiction, and all others ate Courts nf special, limited
jurisdiction. C. & N. 21Q, Sec 7.
It is the service of process-on a defendant, or what the law
deems "equivalent to it, that gives any Court jurisdiction of his
pcrsenz . We have, seen that an attachment of his property, or
his failure to perform certain duties, as the failure of an offi¬
cer to retdrn an Execution, will'in many cases give the Court
jurisdiction of his person. » J^ut except in these cases, which
are specified in our Statutes, process must be served, oh the de¬
fendant, else the^Cour-t has no jurisdiction of his person, and
can render no judgment against him, unless he voluntarily ap¬
pears before thejCourt, and waives the want of service of pro¬
cess. And it is: always Considered a waiver of it,-if he plead
a peremptory pfea," or' goes to trial before a Justice on the
merits o£ the case. But although he' may thus, by consent,
give the ,tribunal jurisdiction of his person, he cannot give it
jurisdiction of the subject. For instance, if he was ■ sued for
slander, or on a note for six hundred dollars before a Justice,
and were to" appear- aiid agree that the Justice should render
judgment against him for damages or for $600, the judgment
would, nevertheless, be void. 1 Hum. 332.
Sec." 172. If the Justice did.not have original jurisdiction
of the subj ect, the Circuit Court cannot take jurisdiction of it
by appeal. ' IfHrom the warrarit and judgment of the Justice,
it appears, that hfe had not jurisdiction of the case, his proceed-
ings may be quashed op motion of the defendant,; for the
plaintiff cannot by releasing part of the claim, give the apel¬
late Court jurisdiction. 9 Yer. 31. If the warrant and judg¬
ment do riot show a want of jurisdiction; then the case must
go to trial, and although the plaintiff proves himself entitled to
a greater amount than the Justice has jurisdiction of, he may
admit the excess paid, and take a verdict for an amount within
his jurisdiction. 5 Hay. 258. If however the verdict finds his
claim greater than a Justice has jurisdiction of, judgment will
be arrested. - , . " .
Sec. 173. The appellee may move to dismiss the appeal,
if there is nothing in the • Justice's papers to show that an ap¬
peal was taken, or if no bond was given, or riot a sufficient
one, or upon affidavits showings,the insufficiency of the Securi¬
ties. But in such cases the appellant may give a good bond,
104
or justify iiis sureties, orgive otherfejprhe. may introduce the
Justice and have the appeal entered;. .The. Appeal,; bond itself
is prima . facie evidence that" an appeal was;; granted.' ,1852, ch.
100, Sec'3, By the same act, as well, as others, appeals from
Justices are not to be dismissed, nor,: Justice's proceedings
quashed, for any informalities. All defects may ,be amended,
either in regard to the parties, or in the statement of the cause
of action, so as to reach the merits of the case.' 0. & N. '89,
N.Jh'lO. 1852, Ch. 100, Sec. 1. 2. • '
< Sec. 174. Any matter which is proper for a plea in abate¬
ment, such as that the warrant was served on;Sunday, that the
defendant was cited to trial in an improper district, that the
proper plaintiffs are not suing, that the, 'plaintiff is ;not ad2-
ministrator, &c, must be pleaded dp writing, and. sworn do at
the first*term, else the defendant can have, no advantage of
them. If he failed to take advantage of dherd before the Jus¬
tice, (which he might do without writing) he cannot plead therh-
In Court on the appeal. "But if it does not app'ear whether or
not he asked the advantage, of them before the Justice, he may
plead them in Court. 9 Yer. 7. * ■
Sec. 175. On the trial'of the appeal, the judgment of the
Justice is considered as a nullity. The parties stand just as
they stood .on the.trial before the Justice. The jury is 'sworn
" That they will well and truly , try the matters in controversy
between James Hart, plaintiff, and John Smith, defendant,
and a true verdict render, according^ to* the evidence." The
plaintiff then reads the Warrant to them, but not the judgment,
nor the indorsements of the Constable. He then iptroduces
his note, account, or other evidence, and the trial progresses as
in other cases. He is not limited to the evidence he introdu¬
ced before the Justice. Either party may introduce other evi¬
dence or other claims, or causes of action^ but if introduced
by the plaintiff they must be of the character described in his
warrant. The defendant may introduce a set-off in Court
which he did not offer before the Justice. 10 Yer. 250.
He may prove a debt by way of set-off of greater amount
than the Justice has jurisdiction of, provided the balance, af¬
ter deducting the plaintiffs debt, is within the Justice's juris¬
diction. For example, if the plaintiff's suit is on a note for,
$500, the defendant may set-off another note of $1000, and
recover $500, the balance of his Aiote, against the plaintiff.
5 Yer. 232. h r
A plaintiff against whom the defendant has recovered judg¬
ment before a Justice on his set-off , cannot, on appeal to the
Circuit Court, dismiss His suit and avoid the set-off; but the
Court will affirm the judgment against him. 3 Hum. 230.
105'
Sec.i 176. If the plairitiff1 is appellant he has already given
security fdr costs; if the defendant is appellant he- alone has
given security; but it is'provided, that he May at any time by
motion, compel the plaintiff to. give security for costs*
0. & N. 189. •: . ^
If the .plaintiff appeals and does not recover more in the
Circuit Cdurt than he did before th,e Justice, judgment will be
rendered against him for the costs of the appeal, which inclu¬
des all the costs of the Circuit Court, and,he will recover only
the costs before the Justice, and the amount- of his judgment.
C. & N. '97. , ^, , , .■
■*'.-When ,the Justice's judgment is affirmed, the appellee is en¬
titled to 12|- per cent, per annum,, interest on it. IVIeigs 225.
Sec. 177. One of several defendants may appeal, in which
case the 'Justice is to transmit a transcript of the rec&rd to the
Circuit Court, arW proceed against the other defendant as if
up appeal had bfeetntakeij. C. &> N. 96..
Sec.,178. Revival ' When the appellant dies,-his represen¬
tative may reyive the appeal by motion., C. & N. 65. If lie does
not, the appellee may have, a .Reive Facias against him at any
time within two terms after the.death of the decedent. t. Where
the. appellee,-.dies,-'the appellant,.may>-in like manner revive
the appeal against his representative. "N^ S. 10. Act of 1842.
, FORMS OF ENTRIES.,
Verdict and Jp>uUgment of A^fie^ajjce.
James Hart, V ' „ ,
vs. . > Appeal.
John Smith, )
Snq,. 179. Came the partief by their Attorneys, and also a
jury of,good-and lUv^ul men, to wit: A. B. C, &c, who being
elected, tried and sworn the, truth to speak upon the matters
in controversy,upon their oaths, do Say, they find in favor of
the plaintiff and affirm the judgment given by Justice Cage,
on the 21sf „day of May 1852, for,$100, and costs. It is there¬
fore considered by the Court,, that tfie plain tiff recover of the
defendant and John l)en, his surety in the-appeal bond, said
sum of one hundred dollars, and- the , further sum of $12,50
being interest thereon at the rate of: 12^ per cent, per annum,
and also the costs before the, " Justice and in this court. "
When the jury ♦find the* Justice's judgment too, large, they
simply find a given sum irnfavdr of the plaintiff,'thus,
"They find in favor of the plaintiff the sum of ninety five
dollars."
In this case the jury give the amount due at the time of
rendering their verdict, and the judgment is rendered against
IOC
the appellant and his sureties only for the am<?imt and costs.
J U D <? M E N,T BY 'DEFAULT AG AMST , AP PjELL ANT. ■;
" Came the plaintiff by his Attorney, and the defendant
being solemnly called to come into Court and prosecute his apj
peal, came not. It is therefore considered by the Court, that
the plaintiff recover of the defendant and John Pen? his secu¬
rity in the appeal bond, the sum of one hundred dollars, the
amount of Justice Cages 'judgment, and twelve dollars and
fifty cents, being 12£ per. cent, , per annum, interest thereon
from 21st of May 1852, and also the costs of this suit before
the Justice and in this Court. " , , .
Motion to Dismiss Appeal.
" Came the parties, by their Attornies, and on motion of the
plaintiff, it is ordered by the Court that the defendant, give se-
seurity for- the prosecution of his appeal, by tomorrow or the
same will be dismissed. " ** *
Next day. 4
" Came again the parties by^ their Attorneys, and the defem
dant having failed to give security for the'prosecution of this
appeal, it is considered by the Court that the appeal be dis¬
missed, and that the plaintiff recover of the defendant $10t),
the amount of the judgment of Justice Cage, and $12,50 being '
interest thereon atthe rate of 12£ per cent per annum, - and
also the costs before the Justice and in tiiis Court."
Frorii these forms the attentive student may learn "to make
any entries that may be demanded .by the exigences of his
ease. ; • • v •• . .
CERTIORARI ANDgSUPERSEDEAS.
Sec. 180. The Certiorari is a Writ which issues to an infe*
rior tribunal or officer, commanding him to send the recordin
a certain case, duly "certified by him, into a superior tribunal.
It is either auxiliary or principal process. Whenever ft is ne¬
cessary to give full effect to any other proceeding in, a superior
Court, it is resorted to as auxiliary to that proceeding. Thus,
upon an appeal or Writ of Error, if, it appears that a full and
complete record of the inferior Court, has not been transmit
ted, the Certiorari issues to the Clerk of the Inferior Court,
commanding him to certify a more perfect .transcript. 1 Tenn.
109, 5 Yer. 182, Meigs 167. ; - > ^ "
It is used as principal process in' a vast variety pf cases. The
Circuit Court being the Court of general common law juris¬
diction, exercises a-supervisory power. over all inferior tribu¬
nals, to keep them in the limits prescribed by law, and to pre¬
serve the rights of the citizen against their encroachments.
107
The Certiorari is one of the principal processes by which thi>
important pow.er is exercised. ; • 1
Sec. 181 Where there is no appeal from the inferior tribunal
This is the casq in regard to Courts Martiai, and many othe
special tribunals whose adjudications affect, the rights of tin
citizen, and Whose proceedings are^tfmmary, and not accord
ing to the course of the common law. In all such cases, if
any one considers himself injured, either on the ground thaT"
the inferior tribunal has transcended its power, or has commit
ted an error in the exercise of it, he may, by petition, apply tc
the Circuit Court or a Judge thereof, far a Certiorari, ahdhavt
the case removed into that Court, where the proceedings of the
special tribunal will be quashed, if they appear to have beer
inconsistent with the law;. '4 Hay. 54-69; 1 Tenn. '61-64; PecaL
134; 1 Tenn. 1; 2 Hum.' 30; 2 Tenn. 181; 7 Yer. 21; 11 Hum-
249. The petitioner also usually asks a Supersedeas, to sto|l
any proceeding against him, if heisliable to any, on the wrong
ful judgment. - , ' ~ •
• F ojrivl of p^e f it ion . . . ;
■To the Hon.- Samiiel Anderson, Judge of the 5th Judica.'
Circuit. ♦ / "
Your petitioner, James Ilart, states, (here, state the proceed¬
ings of which he complains, the facts which show them to be erro¬
neous f Ybur petitioneirprays a Writ of Certiorari to bring up
the aforesaid proceedings to the next Term of-the Circuit' Court
of Wilspn County,1 that they mvay be quashed; and also a
Writ of Supersedeas to stay all further proceeding thereon.
No former Supersedeas has been granted in this case.
' v d . W. BLACKSTONE, Atfy.
• ' '^Affidavit.
State of Tennessee, )
Wilson County, y James Haft, this day made oath
before me, S. Anderson, Judge &c., that the facts stated in his
foregoing petition as of his own knowledge are true, and those
stated,as on information, he believes, to be true, and hereto
subscribed his name in my presence 1st May 1852.
S. Anderson, Judge 5th Jud. Circuit. JAMES HART.
*■' F i a> t ..
To the Clerk of the Circuit Court of Wilson County.
Issue Writs of Certiorari and Supersedeas, as . prayed.;3^:
the above petition, upon the petitioner's giving bond and secy#
rity in the sum of conditioned to pay all costs and d'aift-
•ages'if he should fail to prosecute his Certiorari with effect; <y
May 1,1852. Si. ANDERSON, Judge .
108
The Judge then envelops and seals up the petition and di¬
rects it to the Clerk, who opens it,'and if the bond is given, is¬
sues the Certiorari and Supersedeas, the form of which will be
given'under another head. . '
On the return of theTVrit with the papers., the petitioner
may move to quash the proceedings, and if on the face of them
it appears, that the inferior-tribunal transcended its^ powers,
they will be quashed. If the investigation of facts is neces¬
sary, they will be submitted to a jury at the next Term.
Sec. 182. Certiorari as a substitutefor AppeaL Whenever an
appeal'is allowed by law, from ari inferior to a superior tribunal,
and a party is deprived of the benefit of .it, and of a meritorious
defence or claim without any neglect or fault of his own,
lie is entitled, to a Certiorari. „ > ■ .
We have seen that an appeal is allowed from every final
judgment of a Justice of the Peace in a civil case, to the Cir-
cuit Court. An appeal to the Circuit Court, is also allowed to
"any person who may conceive himself, or the County aggrie¬
ved, by any decree or decision of the County Court." N. S. 11,
Act 1844, ; •• - ' .
If the appeal thus allowed is defeated by the following cau¬
ses, the.party aggrieved may remove his case to the Circuit
Court by Certiorari, if he shows merits: 1. The oppressive,
erroneous, wilful or negligent act of the Court, Justice or
Cierk. 2. The fraud, contrivance,or procurement of the ad¬
verse party. 3. By inevitable accident: 4t By the blameless
. misfortune of the injured party. 1 Meigs Digest 164; 8 Hum. 107.
Sec. 183. Time for obtaining. When used as a substitute for
appeal, it must be obtained at, or before the next term of the
Circuit Court, unless the party is prevented from doing so by
some extraordinary reason. 1 Meigs Digest 165; 9 Hum. 120;
10 Hum. 439. The same causes which defeat an appeal, and
thereby constitute good reasons for obtaining a Certiorari, at
or before the first term, will, if they defeat a Certiorari at that
time, be sufficient reasons for granting it at a subsequent
time. - i'
Sec. 184. By wham,granted. If applied for in 20 days af¬
ter the rendition of the judgment, it may be granted by two
Justices, that is, the petition may be addressed to them, and
they may direct their fiat to the Clerk of the* Circuit Court.
After twenty days prom the date of the: judgment, the petition
must be addressed to and granted by a Circuit Jud°-e C & N
141; Meigs Dig. 165. °
Sec. 185. Upon what terms. Upon giving bond and secu¬
rity to the opposite party, in double the amount of the judg¬
ment, conditioned to prosecute the Certiorari with effect, or if
109
fee fail to do so, to perform whatever Judgment the Circuit
Court shall render in the cause, or if the Certiorari shall be
dismissed for informality or want of sufficient substance, that
he will satisfy the judgment of the Justice or County Court,
C. & N. 141. If,-however, the petitioner will take the pauper
oath he may obtain the Writ, without giving security.
Sec. 186. What the Petition should state. 1'. A good reason;
for not appealing. 2. If the application is subsequent to the
next term of the Circuit Court, after the judgment was render¬
ed, the petition must'show a sufficient reason for the delay.
8. Merits, that is, the petition must show that the judgment
was wrong, not by roundly asserting that it was wrong, but by
a statement of the facts, which will show to the Court, that it
was wrong. 10 Hum. 439 &c. The Certiorari is to obtain a
new trial, and although the petitioner may have been impro¬
perly deprived of Ms appeal, yet there; is no reason why he
should have a new trial, unless he can show that it would re¬
sult in a judgment in his favor. But the petitioner need not
show, that he used due diligence to have the benefit of his de¬
fence before the inferior tribunal, as, he must on a, motion for a
new trial, nor need he show that he asked for a continuance
before the Justice, in order to avail himself of the defence for
which he now asks a new trial.
Sec. 187. "Where there are* two defendants to the judg¬
ment, one may have a Certiorari alone, and in that case, the
Justice is to send up a copy of the papers, and proceed to exe¬
cution against the other defendant. So if only part of the
judgment is complained of, that part must be specified in the
petition, and a Certiorari will be granted as to that much, and
a copy of the papers sent up, and the Justice will proceed a»
to the balance. C. & N.'142, 143.
Form of Petition.
To the Hon. Samuel Anderson, Judge 5th Jud. Circuit.
Sec. 188. Yopr petitioner, A. B. states that a judgment
was renderjed against him by C. D., a Justice of the Peace of
Wilson Cbunty, on the 1st of May 1852, for $100 and costs, in
favor of E. F. Petitioner would have appealed from said
judgment but for the fact, [state the reason.) Said judgment
was rendered on a note for $100, given by petitioner to the
plaintiff,, which petitioner paid off before he was sued thereon,
by the sale of horse to the plaintiff, who agreed to deliver up
is aid note, but failed to do so. Petitioner prays a Writ of Cer¬
tiorari to bring up said judgment to the next Term of the Cir¬
cuit Court of Wilson County, in order that lie may have a new
trial, and in the meantime a Supersedeas to stay all further
110
proceedings on said judgment. No Supersedeas has been
heretofore granted in the case.
E. COKE, Atfy.
Affidavit—Same as in Sec. 259, and it may be made before
a Justice. C,}& N. 143. " . , . .
. ' ' Fiat.
Let the Clerk of the Circuit Court of Wilson County issue
Writs pf Certiorari & Supersedeas as prayed in the foregoing
petition, on petitioner's giving bond and security according to
law. ,
May 1,1852. S. ANDERSON, Judge &c.
- CERTIORAREBOND.
We#A. B. & G. H. acknowledge, ourselves indebted to E. F.
in the"sum of $200. To be void,'if the said A. B,shall prose¬
cute with effect, a Writ of Certiorari prayed by him to the next
rinerm of the Circuit Court of Wilson County, from a judgment
for $100, and costs, rendered against him by C. D, a Justice of
the Peace of said County, on the 1st day of May 1852, in favor
of said E. F., or in case he fail to do so, "will perform whatever
judgment said court shall render against him in said causae, or
if the Certiorari shall be: dismissed for informality or want of
sufficient substance, or other cause, he shall satisfy .the judg¬
ment of the Justice of the Peace, ana also all costs and dama¬
ges that may be ' awarded dgainst him by said Court, in said'
cause. j A. B. [seal.]
„ ' - G. H. [seal.]
On the execution of this bond, the Clerk issues a Certiorari;
in the following form: ,
THE STATE OF TENNESSEE.
To Leroy Cage, Justice of the Peace for Wilson County."
In the suit of James Hart, against John Smith, wherein
judgment was rendered by you in favor of the plaintiff, on the
1st of May 1852, for $100 and costs; send all the papers en¬
closed and certified, under your hand and seal, to the Circuit
Court of Wilson County, to be held at the Court house in Le¬
banon, on the first Monday in August next, to the end that such
further proceedings may be had thereon, as to the Court may
seem right. And have you then and there this Writ. {Tested as
other Writs.) ^ ,
He also issues a Supersedeas in the following form:
THE STATE OF TENNESSEE.
To A. B., a Constable of Wilson County.
In the suit of James Hart against John Smith, wherein Le¬
roy Cage, a Justice of the Peace-for said County, rendered
Ill
judgment in favor of the plaintiff, on the 1st day of May 1852,
for $100, and costs, you are hereby commanded to desist from
proceeding further in the execution of the judgment, and to no¬
tify to the plaintiff, that the record in said suit is removed-into
the Circuit Court of Wilson County, by Writ of Certiorari, re¬
turnable on the .first'Monday in May next, at the Court house
in Lebanon. And have you then and- there, this Writ. (Tested
as other Writs.) ■ ;
These Writs are delivered to the petitioner, ancTTri'fcffiy him,
or any officer, or other' person' delivered to the officers to
whom they are respectively directed. The Justice must obey
the JVrit by enclosing all the papers in the case underhis hand
and seal, and transmitting them to the Clerk's .office, or filing
them himself on the first day of-the Term. -N. &. C. 141. If
he fails to do so, the petitioner may have an alias Cetiorari, on
affidavit that the'first was delivered,-or that unavoidable acci¬
dent or misfortune prevented its delivery. And by showing
that the "Justice wilfully disregarded the mandate, he may have
an attachment against him for contempt.
The Constable, must also desist from proceeding, with the
execution, and give notice to the opposite party*, and return
the Supersedeas showing that he has given him notice; for un¬
til he has notice the Court cannot proceed in the case.
Sec. 189. Proceedings on returr^of the Writ. At the return
term, or at the first term after the opposite party has notice,
he may move Jo dismiss the Certiorari, either at the calling of
the roll in the morning, or when The cause is called on the Re¬
ference Docket. 1 Teiin. 81, 55, 368; 2 Tenn. 179. If the mo¬
tion is not made at that term, it is an admission that there is
sufficient cause for the Writ, and the cause will stand for trial
at the next term. Cook 279. The cause never stands for trial
at the return term of the Writ, except where it is granted in
open Court, and the opposite party appears and opposes the
granting of it. It is then returnable' to the next Term, and
stands for trial at the same time. There are several grounds
for dismissing a Certiorari: .
1. For reasons appearing on the face of the petition. These
are 1. Insufficient reasons for not appealing. 2. Want of
merits. 10 Hum. 439; 4 Hay. 68, &c. 3. Insufficient reasons
for not haying applied at or before the first Term .of the Court,
where a Term has intervened between the date of the judg-
ment and application. 2 Tenn. 110, 179 &c. The petitioner
may be allowed however to amend his petition, by making af¬
fidavit to additional facts. 7 Hum. 109.
2. For defects in, or want of a prosecution bond, or insuf¬
ficiency of the security,^ 'Miese delects, however, may be : up-
112
plied, by his giving a sufficient bond, or new security. 1 Teni
344; 8 Yer. 85, 222.
3. The papers returned showing the petition to be false.
8 Hum. 703. - ' .
4. Counter affidavits of disinterested persons, showing the
petition false. 1 Ten. 101; 2 Ten. 179. This ground of dis- ,
missal is, held doubtful. The practice of the Circuit Courts- is
believed to,be against it. But counter affidavits being deci¬
ded in+4'ftum. 251 to be admissible on a motion for-a new trial,
and as the petition for a Certiorari is but an application for a
new trial, it is doubtful whether they are not receivable to dis¬
miss it. If they are, they should be cautiously received.
1'Meigs Dig. 168, - 1
5. The record of a former Certiorari or bill in Equity in the
same case. 2Tenn. 179.
Sec. 190.^ Consequences of Dismissal: If for any cause the
Certiorari is dismissed, judgment is rendered against the peti¬
tioner, and his sureties, in the prosecution bond, for the amount
ot the judgment below, and 12f 'per cent interest from the date
thereof, and costs. C. & N. 94. On this judgment execution
issues, > ,
Where the motion is made and acted on at the same time,
the following may be the form:
John Smith,
Came the parties by their Attornies, and on motion of the
plaintiff, it appearing to the Court that the petition does not
■how sufficient cause for granting the Certiorari; it is consid¬
ered by the Coqrt that the Certiorari be dismissed, and that the
plaintiff recover of the defendant, and A. B., his security in
die-Certiorari bond $100, the amount of the judgment of Jus¬
tice Cage, rendered 1st of May 1852, and $12, being 12f per
cent interest thereon to this time, and also the costs before the
Justice, and in this Court.
Sec. 191. If the motion to dismiss is over-ruled, the follow-*
ing entry is made.
" Came &c., and the plaintiff moved to dismiss the Certk)^'
rari, which motion the Court over-rules. "
The cause then stands for trial at the next Term, apd the
parties prepare for trial, and try the case, just as if it were an
appeal. It is a new trial; the judgment below has no in¬
fluence ; the plaiptiff has to make out his case anew, and the
defendant may introduce any defences he could avail himself
of, as if the case stood for original trial before the Justice, fie
.Entry'.
"James Hart
vs.
IW
is not confined -to the gro Uriels stated iff feepetitibh." ..The pe¬
tition has perforrtied its.office whenfit has pro-cured a New Trial,'
a*nd is then.functus officio-, 3 Hum/244', "If fire judgment bd-
loujds affirmed," the plaintiff,.recovers of'the'defendant and Iris
security, the amount of the judgmeftt,'and 12^-per 'cpffi; inter¬
est. C.- & "Fvf. .142; 1827.' Jf lesd1 is- recovered *of the plaintiff
than^the^ Justice's judgment,'ffie,-recovers tha,t amount, and. six
per <$nt interest,,and costs, qf the' defendant and his sude^ies.
(C«& N.142-,.1807 she.* 2, where.the readingfffiould be 6. per
cent, instead,of TSc.ott^ 1083'.)' •
.Although we have tepoken of the defendant generally, the,
party obtaining a,'Certiorari; , yet |lie plaintiff, rnay »in Jik-e.
manner obtain it; and if it" id fesipissed, or, he is* Cast pn^the"
trial%.or jthe kjitdgment is affirmed against him, it goes against
him and Ijrs sureties, just "ds" if he-were defendant-. If, for in¬
stance, the defendant has recovered judgtnent.again&t himyori..
a debt set-riff against his, he recovers 1%-r per cant interest, oh
affirmance ofme judgment. »' **
S§c." 192*. .The defendant, althoughhC i^petitioher^ may, on
motion,#at.any time, eotripel the plairijiff to givd- security for
the prosecution of hi^ feuil.'. C. N/,189. ■
. . "■•#*» •». *
'CEltTIORAUr INSTEAD O F1 Alfl) *T*A QUEREL.A'.
She. *193. The AMita, Querela was used to'rojieve the de¬
fendant fr«®m fee judgment, when any fact had occurred' since
it .was rendered,, by whieh-the, defendant was -discharged. ' It
is Jiqw obsolete, arid the 'party is relieved1 by fnotiop, sustained
by affidavits showing the facts, on wffichtlpe Court will makp a
rule onthepjaiutiff to show cause, vfey sajiefqefeon of the judg¬
ment should not be entered, or .why any further proceeding;
thereon should not?be superseded. If execution has issued
from the Court, a petition for a Supersedeas is necessary, to
stop'the execution until- Court, whep fee' motion is made to
quash it. If a Justice's judgment* has been satisfied,* or
discharged, and neyerthelessfexecutipn has issued, the defend-
"ant.may obtain a Certiorari and Supersedeas from the Circuit
Judge or Court, to"bring the Execution into 'Court,, that the
same may be- quashed. • In tliis case, the petitioner 'drives- bond
only for costs and dffinhggs. The petitioner does not complain
of the judgment in this sort of crise,. and of Coursp, gives no
reason for not appealing. On the return 'of- the Certiorari,
the plaintiff may move to dismiss'it,, for the insufficiency of its
statements, and upon the other grounds above stated*in regard
to the dismissal of a Certiorari as a substitute for appeal.
If dismissed, judgment is rendered'against the petitioner
and his surety, for fee costs only, and. a Prc-ccdciuh is ffi-estctL
*8
\14>.
#
to "the Jtistfce, commanding tiim to proceed and issue Etecu-
'tioii on the judgment,, 8 Yer. 217; 1Q Yer.,ff52.
Sec, j94. * .Motion- to quash. , The petitioner on the returii of
the Writ;, makes? n motion to quash 'the. Execution,. On this
motion, ir the petition is not dismissed, an. isgue is made «up,
simply by thq*plaintiff's denying the facts alledged in the pe¬
tition, .which stands for trial by a jury at the next tejip when,
if rtl*e verdict is found, for the petitioner, the> mptk>n to quash is
sustained; if found for the plaintiff; judgment is given against
the petitioner and! his Security for costs, and> a procedendo is
a'warded tq' the Justice % 10 Yer. 252, •
S e t - o#e«®* o f J ir r> o m.eQ t ,
■ Sec. 195. When parpfe/r^c'o.ver judgments against each
other in. the-sanae or in different Courts, One of tffcse judg¬
ements ijiay on' motion, be set-off against the other, for the a-
»mount of the- principal. and interest; Iffit as# the officers and
;#witnesses are entitled to thd costs, there canffie no seboff of
cosls in oilr $t.ate,. but the e^eCutidn tvill, in each- chse, issue
for''them. t5 Yer. 1,12; 1 Yer. 501. Motion and ^reduction
of the jqdgqipntls tall that is,necesshry: • If it is a judgment
of another courfe a. copy must be produced. This power is in¬
cident to the juiisdfcfLon of Co'ufts; and does not* depend on
the Statutes df set-off.. If the different judgments are before
the saffie Justice, He rftay, ho cloubt, set-off one against the oth¬
er. If they are hefore ' different Justices, the set-off may be
obtained'by Certiorari, if the petition shows any just'and rea¬
sonable groundfor resorting to it, as the insolvency of onb, so
that it ^vohkl work irremediable injustice to Jhe petitioner, if
the judgment dgainst him were collected.' Indded in no case
wiil a Court set-off, judgments against each other, except
where right and equity demands it. .
ciiAPTEiryiii.
.County CO UK. '
•» * •• ' ,
See. 196. The County Court is held, on tho First Monday
in every month. At the January, April, July and October
Sessions,, all the Justices are required to attend, and these are
called the Quarterly Terms. At the January Term, they are
to elect three Justices to "hold the Monthly Terms, for the year;
these Justices constitute the quorum, and, the Terms they hold,
are the quorum Courts, org,mohthly terms. K. 8. 115. At the
Quarterly Terms any business may tie transacted, if a major¬
ity iof the Jus tiers attcn;!. At the quorum, there g,re some
115,
softs of business which qanno't be transacted. We will fioti<5o
a few% of the many subjects of .which they' have juris1clictio'nr
and the jmode of exercising it. ^ | \ 1 , ,k , , '
Sec.*1£7. The Administration of Decedents' Estates'. . AnAd-
ministrator is appointed at any term, qn^motion,' sustained*by
proof , 1st. Of/tlie dehth of jtha'intestate, 2nd. That he ,"re¬
sided in the County'in whidh the motion is made. (C. <Sf "N„ 70S)t
The next oi Itin has fhe firsf title tcT the Administration, a*nd
among the next of kip", <hat one who is thought be si qualified.
If none of them apply, the largest creditor is entitled, on, ma-
kihgyoatipoh fus- debt. C. & N. 78. 1 Jt is'doubtful Ah ether the
wddow hag any claim''. 2. Hum. 30!'" By cpnsent of those' "enti¬
tled, administration may be granted to«any .'one. , When1 ap¬
pointed ho must give "bond, and take an oath for the 'faithful
administration*of his tru^t- C. & .N. 71. ■ *■. . f )
Any .one claiming to be entitled to the,•Administration, may
appear*and resist the" motion,- and either party may^ appepl to
the jpircu-if Gpurf, it the clpcision is against himij and upon the
decision, of the appeal, the Circuit Court grants, achiiigistra-
tion tb the party entitled. C. & N. 70; M. <Sc«Y. 43^ And if
eitherys deprived of his appeal without; lii's faqlt, he hgay re-,
move it by Certiorari. 2'Hurff. 30. #
Revocation. When AAmmistratiop. hag - Ipeen- improperly
graifted, any one who conceive^ himself entitled to it; may pe¬
tition the County Court to reybkethe grant,' qn which a 'Cita¬
tion issues to the, Administrator to appear at the' next Court.
This petition must state the*Facts, which sih'oyV that the Admin¬
istration ought?.to be, revoked, andth'ey muH be proved on the
trial of the motion." 3 Hum. 1,42. When a Will is discovered,
the Executor.i,n like manner, obtains,^ revocation of the Ad¬
ministration. '. ;
Resignation. •An'Administrator or Executor'may resign his
trust by petition to tlie Court,, and-on Jfiye'days notice to those
legatees or distributees who reside in the. County, and such n'o-
tiee to the others as thA Court shalfprder, the Court may ac¬
cept or refuse'the resignation. 1852 ch.. 141. » . ,
On the Estates of non-residents. < When one who resides in
another State dies, 4efaving*real or personal property in this
State, .01* debts owing td him here, the "County Court of any
County in tips iState, where any such' property is situated,( or
such debtor resides, may appoint an administrator. C. & N. 85;
N. »S. 103; 9 Hum. 327.
Sec. 198. Probate of Wills* and Appointment of Executors. We
have seen that.Wills are provbd in the Ctrnhty where the tes¬
tator resided at the time of his death. 'The decease offlho
party, ids residence in the County, and the due .execution cf
J16
"fhe'VYill, are.the points-.to. be proved.Then, t&q Executor
movesYor letters* testafnentary, which are 1p be granted, on his
giving bfcnd aijd security, find .taking an^oath for the due "exe¬
cution of the Will, unless the Will dispenses with security. If.
110 ExeCutor is appointed, an Administrator with th'e Will an¬
nexed, is*to be appointed. If "the County^ Court refuses, to- ap¬
pointee Executor or Administrator, who considers himself en¬
titled, to *the'appointment, he may appeal.to the Circuit Court.
'The Court mfght n ok consider the Will sufficiently proved, or
for.other reasons, refuse to appoint the* applicant. C; & N*. 76.
Summons to produce a ,Wdl. On ( application.' to 'the Court,
they may direct a Summons to issue, io compel any one' who
is. in possession of, "Will, tp produce it for probate,mr'to* dis¬
close dn 'oath, where'it is, if" he lias parted with the- possession.
'G..&& 708. ' ' ' • ■ *
Sec. 199. Settlements of their Accounts^ - Administrators and
Executors are to 'settle their accounts with the Clerk of the
County Cohrte at the end of t\xo y$ars from the (time of# their
.appointment. .The Clerk is tp report the settlement to-the
County Court "for confirmation or; rejection, when exceptions
may be taken to it by any person, interested, which* are to be
■decided by the Court, and either party may. appeal to the Cir¬
cuit Com;t. 'J\. 56.,
't gvikdiaks'op InEANTS,
Seg. 200.- These'also, are appointed.by the County Court,
. for all orphans?, C. &-N.*367,*for minprs \Vho.haVe estates in¬
dependent of their parents, 371, or-where the wife is- abandon¬
ed by liter husband., N. S.-171. The guardians jare- to give
bond'payabie to,the State,'on which the ward rnay sue '•them
in the name of the £rfate for usc- If they do .no"t take
good security.thp'Justices are liable.-themselyes to an action
■by the ward, toy any damage he may sustain-by reason of the
•omission. 3 Hum. 451 v On complaint made do the Court, that
.•the guardian is misusing the orphan, or .about to marry him in
■disparagement, or neglecting his education, *qr wasting, or
otherwise mismanaging his estate, the Court may remove him
and appoint another guardian'. Cv & X. 3f>7. They are to set-
tie annually with the, Clerk-of the County Court, N. S. 56,
and they'are to renew their bonds every two years, or the Court
shall remove them. 172. » *
x Idiot's and Lunatics.
* See 291, Tl^e County Court* on information that any Idiot
or Lunatic resides in the County, orders the Sheriff to summon
a Jury of twelye freeholders to inquire into the fact and return
tacit inquisition to the same, or the next Term of the Court,
Ij7*
• •
and also what property h<3 lias.' They "then, appoint a guar¬
dian to' take charge of the poison and "property. \^hen he.
has hot sufficient property for his siipport, the *cpunty*saippofts
by consigning him-, to the Pobr house of the county,' if they
have any, if not, by letting lpm opt-to the 'lowest biddeiy aifd'
paying hibi*his»T5id'.\ C. & N. 3-78*536. The report of the jury
maybe contested, and an appeal tq the 'Circuit Court, -tak'ep.
from the decision of the County Court. • * • * ' •
Coitcu£re"nt jurisdiction/is giypn to the Chancery'Court-, by.
the Apt "of 1852-, ch.'i63.T By- petition *to that'Cdurt, stating
the evidence of insanity and thd defendants properly, yerified
by his own affidavit, »and thai of some other person unconnect-,
ed with the defendant,or himself,"any person may obtainfa fiat
from the dfianpellor or any Circuit judge, to the clerk and Mas¬
ter, to isSpe a writ to the sheriff to summon a jury of inquest,
on petitioner'giving bond and' security foi3 costs and. damages.
The clerlf is*to have a copy of the*petition served on defend¬
ant and ten'days notice of th§ time and place of holding the
inquest4? and to preside*.,over the deliberations - of the J-ary, -ap¬
point a guardian.unt.il court meets, if Iffe is found insane, and
report the inquest to the court, when -a'regular guardian is ap¬
pointed, or the "kiquest is set- aside,. and" another is awarded
or not, 'at the' discretion- of the Chancellor. 239. ♦ »
Sec. 202." The Circuit or Chancery Cduyt may, on the pe¬
tition of the guardian, order - the sale of the estate, and'such
disposition -of th§ proceeds as mayjbe for the'interest «fdhe
non compos. 1852, ch. 57. . ... , *
And the Chancery Court,• may, on.:the petition «of the guar¬
dian, of ahy child of the lunatic, decree a reasonable division
of his estate among the children, as if he had died intestate,.
1852, ch. 57, sec. 2. • -
And on the coming of4 age or marrying' of the child of an
idiot orluiTatiq, the guardian himself may make a Suitable set¬
tlement on him out of, his estate; and if .he refuses to do so,
the child may compel him by bill in chancery. C. &, N. 371, '
i ' * i ^ |, *
■Inso'lvmt Estates. *
Sec.' 203. Executors* and Adifunistrators are to pay no debts"
until .after the expiration of six mbn'ths from their qualifica¬
tion, unless they know the estate to be solvent.- Insolvent es¬
tates are to be distributed rateably amon'g the creditors. .And
the County Court has exclusive .jurisdiction of "the 'distribution
of such estates, where the value thereof does not exceed one
thousand dollars, and concurrent jurisdiction with t'hp Cliai>-
iery Court, where it does- 'exceed that sum, ..The proceeding
- 11 a, ■ guggestion;*that rs, a statement in writing ,
* r „ » i «
lis • ,
-v *
to the clerk of the county court, by the administrator, or ex-
cputor, that the. personal estate is insufficient#to pay the debts,
A creditor also,may maker the suggestion. The clerk then
makes an order on the executor to giye notice by advertise¬
ment for all creditors to file their claims by a given c]ay, no J
Jess than three, nor more than six months. A!p> .suil can be
•brought against him after such notice; but creditors must file
their claims jrith the clerk. They may be contested by the
.administrator, before the clerk, and either .party may appeal
from his decision to the*, circuit court. When the claims are
all adjudicated, the clerk makes an qrder on the e^ectftor to
hie a Schedule of all the personal and real estate. When that
is done lie states an account of the e&tate and the debts, and
reports it to the County Court. There it may be excepted to,
and when confirmed, an appeal lies to the Circuit Court, and
when there decidedthe case is remanded to the County Court,
when the administrator is ordered to pay the debt^rateably. If
•the personal estate is insufficient, the real estate may be sold
oil the petition of the executor fo the Codnty Court, fa akin g
the heirs and widow, phrties, and when sold, the proceeds are
'to be distributed as the personal estate! * ' *
At any time after the suggestion of insolvency, thg admin¬
istrator or anV creditor, may by bill, transfer the administra¬
tion-of tire estate to the Chancery Court, if the value of the es¬
tate exceeds one thousand dollars. All the Laws 011 fhis sub¬
ject are admirably embodied in the Act of 1852, chap. 283,
page 511.
Bastardy. f
Sec. 204. Any Justice of the Peace, upon his own "knowl¬
edge, or on information made to him, that any single woman
has been delivered of a bastard child in his county, may, af¬
ter the lapse ' of thirty days from it^* birth, issue a warrant
and have her brought before him, anil examine her on oath con¬
cerning the father. If she' refuses to declare who is the father
she is to be fined three dollars- and Wg cents fof fornication,
and give bond and good security, -sto keep the child from "be¬
coming chargeable to thp comity.,
If she charges any one With being the fdther, the Justice is¬
sues a "Warrant against him, and upon his being brought be¬
fore the Justice, he is'to enter into bond and security, to ap¬
pear at the next term of the County Court, "to answer the
State on a charge of bastardy," ' If the* Warrant is returned
that he has removed to another county, the Justice returns all
the papers to the Clerk of the County Court, and he issues a
Capias, directed to the Sheriff of any c6unty in the State,
119
commanding him to take the body of the defendant and hare
him before the next term of the County court to answer the
charge. » When the sheriff takes him, he is to take abai^bond
for his appearance. If he does not give the bond, either to
the Justice when brought before him, or to the Sheriff of anoth¬
er county when he takes him, ho is to be committed to jail
until Court.
The Justice is to return the recognizance and all the papers
in the case to the County Court. There upon the ipere affida¬
vit of the woman, lie is adjudged the father, and stands char¬
ged with the maintainancc of the child as the Court shall or¬
der, and he is to give bond and security to perform the orde'r,
and to indemnify the.County against any charge for the main-
tainanee of the child. The order of the Court is, that he pay
a certain sum per annum, to the mother, for three years, for
the maintainancc of the child, not exceeding forty dollars fdr
the first year afyer the birth cf the child, thirfy for' the second
and twenty for the third. At the end of three years, the Court
is to make such disposition of the child as shall most conduce
10 its interest, by giving it to the father or binding it as Ap¬
prentice «to some suitable person. But if the mother is able to
support it, and does support it, she cannot be deprived of it..
1'Yer. 9,2; N. & C. 123.
The defendant, however, may contest the paternity, by* ma¬
king affidavit that he is hot the/ather of the child; on which the
Court will hear evidence. The woman's affidavit is still re¬
garded as prima facie evidence of the paternity,land it will de¬
volve on the defendant to disprove it. Either party may ap¬
peal to the Circuit Court, where the trial is tube by jury. C. fu
N. 123; 1852,.ch. 187,sec. 2. 3.
If the defendant fails to appear in the County Court, judg¬
ment nisi may,be taken against him and his sureties, and a
Scire Facias issue. Sec. 1.
On the orders of the Court making allowances to the mother,
execution may issue. Sec. 4.
Legitimating and Adopting ^Children. Changing Name.
Sec. 205. On the petition of any person to the County or
Circuit Court, 'setting forth tho reasons for it, thh Court may or¬
der the name of the petitioner's illegitimate child to be chan¬
ged, and the child to be made a legitimate heir. C. & N. 499.
But the decree of legitimation does not entitle him to the pos¬
session of the child, unless the Courtis satisfied .it will be for
its interest. N. S. 119; 1 Yer. 92, Nor exonerate him from his
obligation to maintain the child. C. & Nv 124.
So any person's name maybe altered by application to eith-
120
eroif said Courts, for suf^cient? reasons. C. &*N. 499; 1852, ch.
338. • .
So,itpon motion or petition, either Court may authorize any
' person to adopt any child, whether his own or nof, find wheth¬
er illegitimate of not; and such'adopted yhild shall become a*n
lidir,of the petitioner. 1852, ch-338. ^ ^
A pMe.ntio-es.
Sec. 200. When an orphan's estate is so small, that no
person will maintain .and educate him lor tnc promts, the
■Couty Court shall bind him apprentice to ~mo approved* per¬
son, until he is twenty-one years old. ih ■: nm.rtr must be
bound to furnish him. food, clothes, ion ";//•*' and aceommoda-
1 fonc, to teach, hirp to read .and write at ma r and i: .Pruchhim
iij the employment to which he is'bounu. All-ba-e b >rn free
children aic to be bound in like mhnner. h cmab: are also to
be bound, until eighteen years old, Unfofo they are mulatoes.or
mustees, and then until twenty-one. If the apprentice is ill-
used, or not taught the trade or employ an nt •!«> which he is
bound, he may on complaint, be released from" his master, and
bound to another. . tfo may oho site on the indenture £or any
violation of its covenants. The Court may afoo bind out any
child who is desertedbyliis father, if irk mother agrees to it.
C. & J>T. 98,
* 9 v> *
. # - k o a d s .
Sec. 207. The*Coynty*Courts have the exclusive power to
open, change, of discontinue roads. For this purpose it is the
jractice to address a petition to the Court,,signed by the -per¬
sons who want1 the road*opened or changed,. On this the Court
appoints a*jurr/ of inow, consisting of not less than five nor
more than twelve house-holders or freeholders. This may be
done by the Quorum.Court'. 1849,,ch. 21. The oydcir is' deliv¬
ered to the Sheriff'-, vho;,or .his dcpufy, summons the jbry and
rwears them. They report to the next Quarterly Term/either
for or against the object of the petition. If their report is fa¬
vorable, the Court, if twelve or a majority of the* justices be
present, proceed to order the opening or change recommended,
Or they refuse tg do it, if they think the public, interest does
wot demand it. If they grant the order,. thOy appoint an over¬
seer and assign him his hands to worff op the road, and annual¬
ly thereafter they appoint a new overseer, and assign him his
• ands. If they think it manifestly a useless foad, they may re-
kise to appoint a jury of view. Any one ho conceives him-
(elf injured by the laying' out of a f*oad, may apply to the
1 <ourt, and have a jury appointed t® assess his damages, which
rc to be paid by the».County. Any one who is dissatisfied
■ '« t *
n\
with the decision of the1 Court in relation to laying dff an<J
establishing, or discontinuing roads or ferries, may appeal to
the Circuit Court. C. & N. 95, 629 &c. In this appeal the Jus^i
tabes of the Coupty Court or the petitioners may be plaintiffs
a"hd thue opponents of the road, who choose to appeal,. oi> to
make* themselves parties, will be defendants.
' Ferries.
•Sec. 208. The Quarterly County Courts, nine or a majority
oi the Justices being present, have the power to establish fer¬
ries, where they think the public convenience Inquires them.
rhhe owpcis of the banks are entitled to the ferry right, pa pre¬
ference to others. They have power to compel ferry keepers*
to give bond and security, to keep boats in good repair and
well attended for the accommodation of travellers and others.
When one keeps a ferry where a public rOad crosses a. rij er,
vrithont having the lerry established by law, he shall be gov¬
erned by tfie laws concerning public' ferries. C. & N. 335 &c.
The "Com t have also a right to discontinue ferries. C. & X. SCO.
This jurisdiction is also exercisedjon petition, y>r it may be on
verbal application.
.Judgments qn Notes, &c. *
Sec. 209. We have seen in See. loO—40 41, that the coun1\
Court had concurient jurisdiction with the circuit and chan-
cefy Courts,fih decreeing the sale of lands and slaves, for the
purpose of partition, distribution,.or the payment of debts. On
these sales, they will take notes fronjlbe "purchasers. If' these
notes are not paid when due, the- quorum co*urf may render
judgments on thOm, in favor of the payees^ en their motion;
but they must give tp thO makerg fiVe days notice of their in¬
tention to make the motion. If any questiqns of fact arise for
investigation,) they may Be tried by the court, or on motion of
either party, the Court may direct the Sheriff to summon a
jury to try them. Execution issues on the judgments, return¬
able to the codilty court. "Buf if either party is dissatisfied with
the judgment of the County^ Court, he may have a writ of
error pr appeal in the nature of a writ of error, to the Su¬
preme Court. 1§52* ch. 92.
Appeals and Writs of Error from County Cqu^t.
Sec. 21Q. When a party appeals or takes a writ of error
from the county to the circuit court, he must.file a transcript
of the record with the clerk of the circuit court, at least fif¬
teen days before the next term, and then the Clerk may issue
subpoenas for witnesses, pnd the case stands for trial at that
term. If the appellant fails to file the transcript fifteen, days
before the n'ext term, the appellee may file them and have
122
*
judgment affirmed. The. same" rule applies to writs oferrqr.
froffi the County to the circuit cqurf. ■ If however there are
r^ot thirty days between the last cfay of the county court tro'm
which the appeal is taken, to the next term, of the circuit,
court, then the appellaht is allowed'until fifteen days deforo
thp# succeeding term, to fikj the record, the" Clerk being allowed
ten-days to prepare the transcript, and. the appellant the other
five days to procure and file if. C. & N. 9.1 ;»1 Hum. 60; ^Hum.
476;.S[Yer. 164; M- & Y. 204. .' ■ • * . .•
On an appeal the parties stand in the Circuit, as .they stood
in the Cbunty Court; the case is to triedde novo; each there¬
fore must be prepared with his evidence, and irregularity,*an(f
errors in the* proceedings below will jiot be noticed. 9 Yer.
268;2Tenn. 3,79. • On a iyrit of error*however, the appellant
is plaintiff, and the appellee defendant^ and the re coi'd only is
noticedV and if errors are found there, affecting the merits rof
•the Case, then and then clify, the .judgment is to b$ •reveftedf
d &N. 96, Act 1829: .** ; •«
Api'Eal in 'Error^to Supreme Court4 • f
• .Either party may take an,"appeal in the nature cf« a writ of
error h'roln the County to tlijf' Supreme Court, by the consent of
the other party. But.wiihotjfc that consent he ipust either take
an appeal or writ of er tot*, or an appeal in the nature of a
,writ of error to the ciVouit court. C. '& N". 94.^ •
If .betake* an appeal ip tiff nature of ah writ of error, he
may file a bill of exuepliohg to ariy thing done' by the County
Court, and tilth? have 'the case- before the Circuit .Court; upon
the law arising out of, all the judgments of the , comity court
in the progress of the,"case,"as Well as upon the facts.' But no
evidence is introduced, the. Circuit.Ckurt adjudicates on the
record, and reverses or -affirljts. the. t-ounty Court judgment, as
there "may appear to be erf or in it or not.-
« •* •
ipKAPTER IX.
Suits by and against Administrators and Exe&jtors.
Sec. 211. "When-a man dies all his personal property, in¬
cluding the debts owing to him, called his credits, vest; in his
executor or administrator,*who'.is therefore called his personal
representative; A,ll his land!,arid bther real property vest in
his heir, who is called his 'real representative. ,
The personal representative may'sup as soon as he is dis¬
appointed by the, County Court.' Bui; he, cannot be sued until
• «
123
six months afterwards* C. & N. 84., nor can. execution, issue
against him until twelve months afterwards, unless judgment,
was obtained in the life-time of the deceased. C. N. '80/
Where there dre several, all must sue, and all. must be^ -sued,
except, where one may have removed out of the State, "then
the one who-remains may be sued alone.: C. & N. 82. One
may be sued alone before' a Justice of the 'Peace, where thd
other has removed out of the County. C. &N. 83.
.For any wrong done by the deceased, his persQnal represen¬
tative is not liable to an action for damages; l'O Ycr. 434; But
for any wrong done to the deceased, affecting his personal pro¬
perty, his representative may sue. 7 Yer. 79. In .either case,
however, if the action has been commenced before the death
of the decedent, it ma}' be revived byror against his represen-
tentative, unless it was for an injury affecting his person or
character. C. dcIST. 08- % ' /t . .
• Sec. 212. Forms of TYrits and Declarations. The character
in which a party sues must be stated in the writ end declara¬
tion. Aft" it is stated in the same way in both, we will just give
the form of a'declaration in debt, by and against an admin¬
istrator and executor.. , ' ■ ' '
Declaration • . . ' ' '
James.Hart, Administrator of the gOotis and chatties-, rights
and credits which were of Dixon H.art,-deceased, who died in¬
testate, (or Executor of the last Will and "Testament of Dixon
Hart, deceased,") by W. Blackstoile, his Attorney/complains of
John Smith, administrator of the goods and chatties, rights
and credits, which w^re of David' Smith, deceased, who died
intestate, being in Court by summons, of a plea that he ren¬
tier unto him, one thousand,'dollars which he unjustly detains
froin him. For that the said David Smith in his lifetime,
and in the life time of the said Dixon Hart, deceased,
to wit, on the first day of January, 1850, by his certain writing
obligatory of that date, sealed with his seal, and now here
shown,to the Court, promised to pay unto'the said Dixon Hart,
one thousand dollars, twelve months'aftej? the date thereof. Yet
the said David Smitli in his lifetime, did not pay, nor has the
said' John Smith since his death, paid the same or any part
thereof, to the said Dixon Hart in his lifetime, or to the plain¬
tiff since his death; to the damage of the plaintiff as admin¬
istrator as aforesaid $200, & therefore he sues. And the said
James Hart brings into Court here, the letters of administra¬
tion, granted to him by the County Court of Wilson County, at
the May Term 1851, by which it appears that he is administra¬
tor as aforesaid. \ ' * , W. BLACKSTONE, AtVy.
I
*' ,T\rthis, the defendaiit may plead the. same pleas*as the?dece¬
dent might-, such as, Jion .est facfum;—statute of limitations',
4ncTas we thipk, nil debet, under the" Statute of 1850. In the
•plea of,, nil debet, the only difference is, that arj Administrator.,
' \says-,he*daes'iiot detain, instead of saying he does noisome the
-debt. He may.also* plead,plene Administravit, Syc. k
10 * The judgment ag&inst, an adminisfrator is in this form:-
" It is considered by the Court that the plaintiff recover of thp
defendant said* surti-of, *&c., and, also"the costs of suit, -to be
levied "of the goods and chattels, that "were of the said David
Srnkh, at the time of his death, remaining in .the hands of the
defendant .to be* administered, if 'so much Can be found; if not
their the co^ts to be levied of the proper goods and chattel?-,
lands Jand tenements, of the defendant. " . • *" •
*If 011 Exhjutlon, sufficient gqods of the deceased cannot be
foifrfd, then a Scire Facias issues against the Administrator,
to. show cause v\vhy judgment should not b£ .rendered agaidst
him personally. „ ' * . . N • "
Spc. 213. * -Against Administrator or Executor on- his bond.
The bond is- payable to the State,- and an$ cTnb who'is injured
by a hrddjc-li'of the conditions,*may brin£»arf action of debt, in
the hame nf tile State for his iise; agairist the administrator
and his'securities. 1,848, ch. '167: lii his'clpclaratio-n. he must
allege a breach pf "some of the cpndi'tions of'the bond. The
conditions are 1. To exhibit an-" inff ntoiw tp the County
Court. ►For a breach of this, a-creditor ifiay'puobably sue.
2. To. administer the estate' aCcQrdmg- to'Iaw. A creditor who
has obtained a judgment; against thfe-* acjjpriinistrator, and he
has failed to satisfy'it, may sup him forja breach of this con¬
dition, 3. To settle his adminisjAafiiofi account within two
years. 4. To pay fiver to the person en'titled, what remains
in his hands. For a breach of .this* legatees and distributes^
may sue oft his bond. Peck285; C; & ?I. 80. " *
Suits "b-y and agaI^ts Infants."
- 4 • * f5
Sec. 214. An infant must sup and' defend by. 'guardian. Tf
he has no guardian, or he -"tvants-to sue his girardfan, or his
guardian will not bring the suit,.fie may sue •by any one who
will,act for him, as his next friend, or jjrochein dtny% and. give
security for" costs. 10 Yer1 i71; If an infant is sued-and has
no guardian, any Court in which heTs sued, will appoint some
one as guardian pending the suit, who "acts, us guardian for the
special occasion*, and has no further jpenyer than simply to de¬
fend the suit, tie is called guardian ad litem? or lis petidev ■?
pendente liter 5 '
125 '
"It is remarked in Sec. 1-30 that infants may- petition by next.
friend'to sell their, lands dor partition. Such has. been th
practice in the Chancery and Circuit Courts. It is £aid .how¬
ever to have beemdecided differently by the Supreme Court a
■the last term at Nashville.- > *
F-oem of W&it and Declaration,
"Where an infant sues by his next friend or guardian, the
writ directs the* sheriff to summon-the defendant "to answei'
A. 3-j an infant, Under the age1 of 21 years, who- sues by hie *
next friend {or guardian) C. Dgof'a plea, &c.".
The declaration- would commehce "A. f>., an infant, undei.
themgeof twenty one-years, by C. D., his next friend, com .
plains of E. F, &c\ " \. . . - '..l .
Process issues against the infant himself, and .on 'its return
executed, he is to.appear, by his guardian, if he has any; i
not the Courtis to appoint one. ,. ~ ^ , ;
The-Declaration'then 'commences thus : .
".And the said E. F-> an 'infant, under twenty one years Oj
age,.hy G. H-., his guardian, comes and says, &c."
* Suits-by and against'CorpoeatJons.
Sec. - 215. Corporations sue and. ard1 sued in their corporate
names* For example, suppose The* Tennessee Manufactu¬
ring Company wishes to sue th§ Trustees of Cumberland Uni¬
versity on the following riote: ** -* .
. - V . •. Lebanon, FJanuary, 1852.
The Trustees of Cumberland" University,. promise to pay the
Tennessee Manufacturing Company, or order,' ten' thousanc
dollars. . J
J..S. McClain, Sec.- . • R. L;. Caruthers, Pres.
'.The writ would command the sheriff to " Summon th(
Trus tees of Cumberland University to appear &c, to answe;
the Tennessee Manufacturing Company, of a plea, that the}
render unto said Company $10,000, &>c."
The sheriff is to serye'this Writ on thelHead of the Corpo
ration sued, as fin this case, on Robt. L.. Caruthers; or in hf
absence, on the Secretary, Cashier er Treasurer; or in the ah
senceof all^these, on any Director or "Trustee ; or in their ab
sence, oit the Chief Agent of the Corporation. But proces.
cannot be served on any of these officers, or agents, out of tin
County, in which, they - reside. .Even* "a foreign . corporator
may be sued here, and the process be*,served on any agent, o,
officer, who may be residing here. Pj". 3. 10G; 1850 cliap. 136.
185*2 chap. 136. ' Upon the return of the process, the same
proceedings take place as in case of suits* by and dgainst indi¬
viduals. *
126
*'*- SEC. 216. To prevent malversation-of corporations or trustees.
The- Attorney General ofthe State, under the direction of the
' Legislature, or-with the concurrence of the Governor, may file a
hill in- the Circuit or Chancery Court against, any corporation,.or
the officers thereof, or the trustees of funds given for public
jor charitable purposes/to prevent them by injunction; from as¬
suming any powers not granted, and to bring them to account,
for any .mis-mnu&gement of the .funds entrusted to them; to
remove- Such officers, and appoint receivers,4 and'to make'such
orders as may be necessary for thp ends of justice.. N. S/107,
Sec. 8. * ■
Sec. 217. Dissolution of Corporations. In like manner the
Attorhey General may file a bill against any- corporation,, in
the name t>f the State, in the * Circuit or Chancery Court, to
dissolve^ it, oh the ground that it" has by misusing-, or not using
its powers, forfeited its charter.- N. S. 106,. Sec. 5.. These
bills may' be filed either by order of the legislature, or upon the
knowledge ofthe Governor or AttorneyGeneral, and with their
concurrence,' or upon written information .on oath, gbren by-any-
individual, called a relator. In the latter ease the relator is.to
give bond hnd security, for costs, if the Court'see proper to re¬
quire it, Sec. 6, and issues of factmay' be made up, .and tried by
a jury.'Sec. 6. 8. \
The bills mu'st be filed in the County where the meetings of
the members or officers-Pf- the'corporation have usually b.een,
or ought to have been held, and the.Court is to make such or¬
ders as may be necessary to give all thV parties interested,
notice. ' '
'Trustees.
Sec. 218. When a trustee dies, or fails, or refuses to act, the
Chancery or'Circuit Court may appoint a successor, So for
good reasons presentee! in the trustees petition to either of
those Courts, he may be permitted to resign, - and a successor
be appointed. The application must be.made to'the- Court of
the County'where the trustee -or cestui que trust-, resides, or in
case of failure to act, where the trust is to be executed.- C. &.N.
093; N. S, 120. "So these Courts'have Concurrent jurisdiction
of the petitions of trustees to sell the trust property-under the
deed or will creating the trust. N. S. 120., *
Sec. 2U>. tie its on O ffice bonds. All subordinate or execu¬
tive officers, and all who'are .appointed by, the.Courts to fidu¬
ciary po-- lions, such as administrators, guardians &c., and all
who are iv quired to give, security in the/prosecution Gr defence
of suits, must execute' bonds, which are kept in public offices,
and are therefore called office bonds. The. obligees in these
bonds, the amount of the penalty and the conditions of them,
■127*
are, usually "regulated by the statutes teeulri^"^ fhqm, qnd'
hence, they are caped %statutc>ry[ bonds. On "these,.peculiar .
Remedies are* given,.such as" judgrrieUt by motion, scirq facias,
&c*. Bonds not so required, by: statute, but which me'n volun¬
tarily enter into in thq course of their dealings, are called' roV
untaty, or common faw4' b ond,' b e cause they thrive their efficacy
ffom the comman i'aw, and from their being voluntarily entered
intg. The peculiar remedies which' are giye'n by the "statutes
on, thjese* statutory bonds, could, pot be ^esdfted t<j), unless.tlie.
bonds!"were taken in, confotmity to tlffi statutes; but as( /they
were common law bonds, the obligees or beneficiaries in therm*
must resort to the common law remedy by regular process,,
pleading, &c.' It was provided by the Act of 1844, chap',103,
Sec. 14, that the bonds of collecting officers 'spould be consid¬
ered statutory bonds, although not taken iipexaqt 'conformity
to the statute's. tN. •>>. 263'. ' And now#by the Act of 1852,
chap. *256, sec. (Pamphlet^Acts.4^2")"all, bonds and recog¬
nizances that may be deemed good pud valid as cgrpmon law
bond's and recognizances, shall Be'deemed, statutory.''
. Suits.'mqy be rhamtainedjon these bopds in'the name; of the
obligee fen theffise^ of •the party,Tor. Whose Benefit they'were
gjven. ■ Thu^,. an*1 adminisfe-'atdys bbndis payable''tp the State.
If a dpstributeee or creditor sued, him and. his sureties on the
bond, the writ would direct the ' sheriff "to summbn the de¬
fendants "to answer.the State, of-Tennessee*'for the us$" of
James Hart, of a please.," ,' 1 "
The Declaration wpuld run V the State of Tennessee, for the
use df James Hart, complains ef^ A, & B., of "a plea that they
rencler undeVsfiid, Statej fen .thousand dollays, which they" owe
to&<?."; v. \ .
L* Sec. 220. « In"apy other case iwhgre "fine hps acquired, the
beneficial interest in a 'contract, and it cannot be, or has not
been assigned-to him, as if he'has purchased a note, apd it
has not bqen endorsed to him^or an opeti account, which can-
hot be transferrecfi^he mtty sue' in the1 name of the original
creditor for his use. Thus, suppose,James Hart to be .the
payee of a note On John '$mith, and David Long buys it, with¬
out assignment, the Writ would be to summon, Jphn Smith to
answer James Hart, for the. .'use (ot4 who sues for" the use) of
David Long, of a plea, &c., '• , •
The declaration, \Vould be*'* James Hart, for the use {or who
'sues for the u^c) of David Long.coniplains, &c." The Decla¬
ration proceeds without noticing David Long any further ; it
need state nothing about His acquiring the interest in the debt,
nor does he have to prove it on the trial. If the defendant
wishes to dispute tha£Tact, he must make affidavit to that
128
feet, hav c a rule on him to show cause why the-suit should
not be dismissed on that account. Qn this rule he may show
that he bought the interest in the debt, and that will be author¬
ity enough for using Hart's name. 5 Yer. 2df. ^ If the defend¬
ant should plead a set-off against IIarf, the original creditor,,
or payment to, or a release by him, then the plaintiff will have
to "reply that he purchased the debt, that the set-off or release
wg,s acquired, or the payment made, after he purchased it, and
after the defendant had notice of that fact. .
The beneficiary, or cestui que use, in the suit, Dayid Lorig, fs
considered the real party/ If he looses the suit,'judgment is
rendered against him and his prosecution bail, for costs.
C. & N. 189. "The death of the trustee does not abate
suit, or render it necessary to revive it in the name of his rep¬
resentative. C. & N. G6.
Costs'in Civin CaseS.
Sec. 221. The general rule of costs is, that the successful
party shall recover against his adversary, alf the costs which
have accented in the cause. But in actions for assaults, and
batteries, false imprisonment, malicious prosecution, and for
damages occasioned- by the Overflowing of water in conse¬
quence of thq erection of any'useful waterworks, if the plain¬
tiff does not recover more than five dollars, & in the action of
slander, if he recovers less than five dollars damages, he recov¬
ers no more costs than damages. €. & N. 188, 190,1852, chap.
14G.*So wtc7-hcutQry"costs, that is, such as-are adjudged against
either party On. a continuance, setting aside a nonsuit, grant¬
ing a new tidal, amendments, and other incidental rules, can
never be taxed to the other party, although he may ultimately
loose the suit. 3 Hum. 169^ 6 lium. 20. Nor can witnesses
be taxed, who are summoned to prove ihadmissable facts,
(4 Yer. 401;) or who* attepd without being summoned", (2 Yer.
230;) or who do not attend the trial, although they have attend¬
ed up to that time, (1 Ten. 424;) or who attciid, but are not
introduced, unless the other party has witnesses attending
also-who are 'not introduced, 5 Hum. 573; 6 IIuip. 23; or who
are examined,-and prove nothing; or more than two witnes¬
ses to asinglc fact. C. & N. 711. In there cases, where costs
cannot be taxed, and no interlocutory ji egment has been ren¬
dered for them, the officers andnVitnosr: n;ust look to the party
for whom they render the service, for tg fi ices.
Sec. 222. Judgment and Exccut; ,u h , .jut's. The judgment
for costs is not for any specific sum, but ncrally, for the° costs
of the suit. 5 lium. 44. The conw,-!.,/,, ;on that officers and
witnesses arejmtitled to for any ifom of service rendered, and
im
expenditure incurred in thte Cause.,is regulated by statute.; and
the Clerfe is'Required to ;rrf&ke*6ujit costs by the statu¬
tory fee bifl> setting down in his, execution dockeff each item
separately,* in words at length,.,-'except the ■-amount,, which is in
figures. : if they are "not-flien paid.by the' party from whom
thpy are due,"'' that is, by the'party'against -whom judgment is
rendered, for them, he is, to issue an'execution against him.
<§. •& N.. 156, sec. 9;,M. & Y. 45.. "On this execution, the bill
of costs is to be endorsed, as.it stands on the execution dpeket,
and if any of the items are not Written in words at length, the
execution is void as to those items. 2 Yer. 230,'310,244, 441.
Sec. 223. Taxation of Costs. . In all those,, cases where
judgment goes against a party for costs, and there are witnes¬
ses in attendance,-who cannot be legally taxed against him,
or there is aii^other item proposed, or likely to be taxed against
him improperly, he should move that the clerk be instructed
pot to tax them. If costs are improperly teixed against him
on the execution, he may at the next term move to correct the
taxation of costs, by striking out the objectionable items, or
quashing the execution as to'them; and if in this case he has
satisfied the execution in fuM, the court' will order the costs
improperly .exacted-to be refunded to him. 1 Ten. 424. 2 Yer.
230. 7 Hum. 16. He may however,-by petition to the judge,
obtain a supersedeas to stay the execution, until the next term,
and thereby avoid the payment of the fees wrongfully taxed.
If a case is taken to the supreme court, there is to be sent
along with a- transcript of the record, a bill of the costs in
the court below. If the judgment is affirmed, execution is is¬
sued by the clerk of the supreme court, the costs are paid to
him, and he pays over the costs of the court below to the clerk
of that court, who distributes them to the persons entitled.
N. S. 62. Tire supreme court cannot correct the taxation of
costs in the court below, unless it appears on the face of it to
be erroneous. The loosing party in the court below should
move there to correct the taxation of costs, and except to the.
judgment of the court if his motion is over-ruled, and then the
court above, will act upon the question. 3 Hum. 205. 4 Yer. 561.
Sec. 224. Remedy for costs. When the plaintiff recovers
judgment against the defendant, and it appears from the re¬
turn of the execution, that the plaintiff's,costs cannot be made
out of the defendant, then the officers and witnesses may have
judgment against the plaintiff, by motion, for his costs. 1848
cli. 62' By the plaintiff's costs, is meant the fees of the offi¬
cers and witnesses for services rendered him. For instance,
the fees of the clerk for the original writ, sybpeenas, and all
other processes issued on his application, and all entries made
9
130
on his motions or in his behalf'; the* fees of the sheriff for exe¬
cuting those processesthe fees of witnesses attending in his
behalf. The defendants costs, are the fees due for similar
services rendered m his behalf. The statute of. 1348 does not
allow a judgment by motion, against the defendant for his
costs, where he has recovered judgment against the plaintiff
and from the return of an execution, it appears they are not to
be made out of the plaintiff. Prior, however,, to this a'ct,* it
was decided that.officers and witnesses might recover their
fees, in an action of debt of assumpsit, against the successful
party in a suit, for services rendered him, if the other proved
unable to pay them. 4 Yer. 459.
Sec. 225. Remedy against sheriff'. We have seen (sec. 123)
that the plaintiff may have a summary judgment against the
sheriff and his sureties for not returning an . e^bcution, or not
paying over monies collected thereon, or for a false or insuffi¬
cient return. Stich a judgment will cover the costs as well,as
the principal, and of course will be as well for the benefit of
the officers and witnesses, as for the plaintiff. But as the
sheriff might pay the principal and withhold the costs, or the
plaintiff might choose to indulge him, it is provided that for a
failure to return an execution issued from any court, or to pay
over the money collected, the witnesses or any person entitled
to costs, on giving him three days notice of the time, may ob¬
tain judgment on motion against him for the amount due
them. Each one in such case would have to obtain a seperate
judgment, as his claim is several. But the clerk may include
all the cases of delinquency in regard to his fees, in one no¬
tice and motion. The judgment however can only be render¬
ed against the sheriff, not including his sureties. If the sheriff
has paid the money over to the clerk, the other persons enti¬
tled to costs, may in like manner have judgmfent against the.
clerk. C. & N. 157; 4 Yer. 569; 5 Hum. 515.
The clerk and his securities are liable to the plaintiff's
judgment by motion for money paid into his hands upon any
judgment or decree of the court, without any other notice than
a simple application to him for the money, at his office. C. & N.
156, act of 1807.
Sec. 226. Witnesses fees. A witness who is compelled to
attend out of his county, is allowed one dollar per day for his
attendance, and the same sum for every twenty five miles he
may have to travel in going to and returning from the court
house. C. & N. For attending in the county of his residence,
he is allowed seventy-five cents per day, and four cents per
mile for travel^ng,^ where he lives more than ten miles from
lh? court house. N. S. 309.
131
A witness may recover his fees of the party who summons
him at the end of every term he attends, if he sees proper to
sue the party. But if that party succeeds, he recovers those
fees of his adversary. M. & Y. 38.
, A witness must prove his attendance, either in term time or
during the vacation, otherwise it will not be taxed in the bill
of costs. He proves it by his own oath, C. &N. 711, N. S. 309.
A witness may prove his attendance, in every suit in which he
is summoned to attend, but he can prove his mileage and fer¬
riage in but one, and he may select that one. 2 Yer. 323.
Where the' question in the several suits is the same, and one
of the parties the same, he may prove his attendance, mileage
and ferriage in four cases only. C. & N. 714. If summoned
by both parties he is entitled to but one attendance. 2 Yer. 230.
Re-summoning Witnesses on New Trial.
Sec. 227. In Sec. 93 it is stated that it is doubtful, whether
witnesses have to be summoned again, when the court grants
a new trial. In 1 Hum. 329, it is decided to be the law, that
the verdict and judgment on it, is a discharge of the witnesses,
and that they are not bound to attend without being re-sum¬
moned, and of course if they do atttend they cannot be taxed
in the bill of costs. As judgment is always rendered on the
verdict, unless it is set aside as soon as it is rendered, this rule,
that they must be re-summoned will apply to almost every
case of new; trial.
Sec. 228. Trial of Scire Facias against witness on forfeiture
against him. The form of the Scire Facias, and a discussion
of its essential qualities may be seen in 9 Yer. 322; 11 Hum.
72. It is stated in Sec. 55, that if an issue of fact be formed
on this Scire Facias, "it stands for trial at the next term." In
Meigs Digest 1047, the supreme court seems to be understood
as deciding in Duke vs. Given, 4 Yer. 478, that the court might
decide the issue in a summary way. But in that case, the
circuit court had acted summarily on the affidavit of the wit¬
ness against whom the forfeiture was taken, and the counter
affidavit of the party, and the supreme court only decide that
if' the circuit court could try the issue in a. summary way, it
could not decide on the affidavits of the parties interested.
The act of 1794 ch. 1, sec. 29, simply provides that if on no¬
tice by Scire Facias, of the judgment nisi, the witness fails to
show at the next term sufficient cause for his failure to attend,
the court shall, on motion, grant judgment and award execu¬
tion for the forfeiture. '"So would the court, on motion, grant
final judgment by default, and award execution against any
defendant who failed to appear and show cause why he had
132
faileu to pay a debt, which the plaintiff alleges in his declara¬
tion he has not paid. But if he pleads to the Scire Facias or
declaration, any fact which shows a good reason for his. fail¬
ure, the court cannot grant judgment until a jury determines
the truth of the defence, . *
Sec. 220, Compromise and dismissed. If a case'is accom¬
modated, or the plaintiff' by written order, directs its dismis¬
sion in vacation, and the witnesses are not discharged, they
may .prove one days attendance at the next term, >but in the
latter case, all other costs shall cease, C. •& N, 190, 711...
CHAPTER X,
Ca i m in A. l. peOCE e.d i n g s ..
Sec. 231). These are commenced either before'a justice of
the peace, or in the circuit court, except in the few places
where there is a criminal court. Before a justice, the first
step, usually, is by warrant issued on the evidence of some per¬
son, swearing positively to. the commission of a crime by the
defendant, or to circumstances rendering it probable that the
defendant is guilty. This warrant is called a state's warrant,
because the state is always plaintiff, the person applying for
it, being merely a prosecutor. As the State is-plaintifi*, any man
may be prosecutor, whether it be the person who is directly in¬
jured by the crime complained of, or a stranger.
Form of Warrant,
State of Tennessee, > To the Sheriff or any Constable of
Wilson County , ,) said county^
A. having on oath, informed me that B. did on the first day
of January 1852, in the county aforesaid, unlawfully commit
an assault on C. I command you, in the name of the state,,
forthwith to take the body of the said B., and bring him before
me, or some other justice of said county; to answer the said
charge, and to be farther dealt with according to law. Given
unher my hand and seal, the 1st July, 1852.
LEROY CAGE, J. P. [seal,]
The warrant should always contain a description of the of¬
fence complained of.
When the prosecutor delivers it to the sheriff or Qonstab'e, k?
proceeds forthwith to take the defendant and bring him before
some justice. If the defendant resides in, or basiled to ary
other county inHhe state, the justice may issue his warrant t»
the sheriff or any constable of that county, who may biing-
133
the defendant, before any Justice of the" county where the
offenc^ was committed. C. &, N> 241.
Sec. 231. Examining court. The justice before whom the
defendant is brought, is'called the examining or committing
court. He is to examine the defendant and all the witnesses,
and reduce their testimony- to writing, signed by them. The
defendant however may decline being examined,- and if he
submits to it, he is not to be sworn. If the justice considers
the evidence insufficient, he discharges the defendant, and if
he cousiders the prosecution frivolous and malicious he taxes
the prosecutor with thn costs, including both the costs on the
part of the state and the defendant. 1852 ch. 70. If he thinks
the defendant guilty, he enters his judgment to that effect on
his warrant. If the defendant pleads guilty, and it is a small
offence, and the justice thinks a smaller fine than fifty dollars
sufficient, he may fine him not less than two nor more than
fifty dollars,, 1848 ch. 87; 1850 ch. 247; 1852 ch. 15, 157; 11
Hum. 599; 10 Hum. 431; 9 Hum. 43, 677.
If he considers the offence aggravated, or if imprisonment is a
necessary part of the punishment, he must then either commit
the defendant to jail, or admit him to bail. All offences are
bailable except capital case^, where the proof is positive, or
the circumstances are very strong. Where the offence is bail ¬
able, if the defendant does not give bail, he must be commit¬
ted. The writ by which he is committed is called a Mittimus,
which is directed to tlft sheriff or jailor, and reciting the cause
of his commitment, commands the officer to keep him in jail.
X. S.' 320.
When he is committed for want of bail, either the commit¬
ting magistrate or the sheriff may take-bail at any time, and
release him from his imprisonment. C. & N. 121 < But if he
is committed because the justice thinks the offence not baila¬
ble, no officer can bail him except the circuit judge. The pri¬
soner may apply to him for a Habeas Corpus, and if the judge
thinks from the facts stated in the petition, that he is entitled
to bail,'he may grant the writ, and on examination of the case,
bail, or recommit him.
Sec. 232. If instead of being committed, the defendant is
ready to give bail, he and his sureties enter into a bail bond, or
rccognizande, in such amount as the j ustice thinks proper to re¬
quire, conditioned for his appearance at the next term of the
court to answer the charge.
Recognizance.
A. B. & C., came before me, this first day of July 1852, and
acknowledged themselves indebted to the State of Tennessee,
134
the said A. in the sum of five hundred dollars, and the, said
B. & C. in the sum of five hundred dollars', jointly and sever¬
ally; to be void if the said A. make his personal appearance
before the cirquit eourt of Wilson county, at the court house in
Lebanon, on the Thursday after the first Monday in August
next, to answer the state pn a charge of an assault and bat¬
tery on D., and not depart until legally discharged.
LEROY CAGE.
Justice of the Peace for Wilson County.
Or it may be in the form of a bond "We A. B. & C. ac¬
knowledge ourselves indebted, &c." and signed by the obligors,
and tested by the justice.
The justice is also, to recognize the witnesses to appear on
the second day of the term, and give evidence, and the prose¬
cutor to appear and prosecute, and also to give evidence, if he
be a witness.
The justice is to return the warrant, his judgment thereon,
the examination of the party and witnesses, and the recogni¬
zances, to the clerk of the circuit court, on the first day of the
term. C. & N. 428. The prosecutor or the defendant may ob¬
tain subpoenas for witnesses, either from the committing jus¬
tice, or frOm the clerk, after the prbceedings are filed in his
office. The subpoenas may be directed to the sheriff or con¬
stable of any county in the state, and are returnable to the
circuit court. C. & N. 240.
Sec. 233. At the court to which the defendant and the wit¬
nesses are bound, if the prosecutor appears and the attorney
general for the district, thinks the evidence sufficient to sus¬
tain the charge, he must file an indictment, as follows:
Indictment, for Assault and Battery.
State of Tennessee,) Circuit court, August Term, Eighteen
Wilson County, ) hundred and fifty two.
The grand jurors for the State of Tennessee, elected, em-
pan n ell ed, sworn and charged, to enquire for the body of the
county of Wilson, upon their oaths present, that John Smith,
late of said county, laborer, on the first day of January, in the
year of our Lord, eighteen hundred and fifty two, with force
and arms, in the county aforesaid, in and upon one James
Hart, in the peace of God and our said State then and there
being, did make an assault, and him, the said James Hart, then
and there did. beat, wound and illtreat, and other wrongs to the
said James Hart, then and there did, to the great damage of
the said James Hart, and against the peace and dignity of the
Stale- WM.L. MARTIN.
Att'y. Gen'l. 5th Dist,
135
On the back of the indictment, he writes the following en¬
dorsements, except the clerkhs name.
State V
vs. y Indict.> James Hart, prosecutor.
John Smith. )
A. B. &c C. \yitnesses, sworn in open court and sent before
the grand jury, 4th Aug. 1852. W. HART, Cl'k.
He then has the witnesses called to the . clerk's box, and
hands the indictment to the clerk, who proceeds to swear them
thus: "Yoh solemnly swear that the evidence .you will give
the grand jury on this bill of indictment, against John Smith,
shall be the truth, the whole truth, and nothing but the truth*
so help you God." The indictment is then handed to the con¬
stable of the grand jury, who' takes it and the witnesses be¬
fore that body. The defendant is not at liberty to send any
witness to the grand jury; they can only examine the witnes¬
ses sent before them by the attorney general, on the part of
the State. The attorney general has aright to be with them,
and assist them in conducting their; examinations.. If twelve
of them consider the charge sustained by the evidence, the
foreman makes the following indorsement on it: "A true bill.
Millard Fillmore, foreman of the grand jury." They then
come into court; and their names are called by the clerk, and
if they all answer, they are 'asked by the clerk, if they have
any presentments to make, when the foreman hands the in¬
dictment to the judge, who inspects the indorsements to see-
that they are. correct, and returns thefm to the clerk, who makes
the following entry on his minutes :
. State \
vs. >
John Smith, ) The grand jury came into court and filed a bill
of indictment against the defendant for an assault and battery,
indorsed by -their foreman, a true bill.
If it is an indictment for a felony, the clerk is to spread out
a copy, of it, and its indorsements on his minutes.
If the grand jury think the indictment not sustained by the
evidence, it is endorsed by the foreman "not a true bill," and
in like manner returned, and' its return noticed on the minutes,
and a judgment rendered against,the State for the costs, and
the defendant discharged. -.
Sec. 234. Indictment ex officio. If the prosecutor does not
appear to prosecute, and no -One else will prpsecute, the State's
attorney cannot file, an indictment, wnthout the order of the
court to file one ex (fficw, which order will ajways be made on
his motion, whenever the court is satisfied from the testimony
136
of a witness sworn in open c'outt,vor from "his personal knowl¬
edge that an offence has been committed," and that - no one
will become prosecutor. C. & N. 241. N. S. 135.
There are also a few cases in which the attorney general
may file an indictment ex officio, without an order of the court,
as upon an inquest qf a coroner returned to court, finding one
guilty of homicide. In cases of gaming, where a defendant
is recognized by a justice or judge to appear for a misderrtean-
or committed in his presence. C. & N". 385. For the violation
of graves. C. & N.241, 329. - Inciting slaves' to insubordina¬
tion. C. & N. 242, 331. For#ipling. N, S. 292, sec. 13. For
illegal voting. N. 155, sec 14; and some others. In these
cases he acts upon his belief that the evidence will sustain the
charge, and that the public good requires him to act. He pro¬
ceeds as whep he is ordered by the court to file it.
Sec. 235. If the prosecutor or witnesses fail to appear, the
attorney general may have them called by the sheriff to come
into court and prosecute (or give evidence) in behalf" of the
State against the defendant, on a charge of assault and bat¬
tery (or whatever the offence may be.) or they will-forfeit accord¬
ing to recognizance (or subpoena). A judgment nisi, is ren¬
dered for the penalty, and a Scire Facias issues, returnable to
the next term, to give the delinquent an opportunity to show
cause if any he. has,'why the judgment should not be render¬
ed absolute.
Sec. 236. Prosecution commenced in court. If a man wants
to prosecute another, he need not apply to a justice for a war¬
rant, but he may apply to the State's attorney to file an indict¬
ment, who is bound to do so, if he is satisfied that if can be
sustained. In this case h'e endorses the name of the prosecu¬
tor on it, files it with the clerk, and demands subpoenas for such
witnesses as he wants, has them sworn; and sent before^ the
grand jury, who proceed in all respects as described in Sec. 311.
Presentment. If any one of the grand jury has personal
knowledge, that any person has committed an offence, he is
bound to make known the facts to his fellow jurors, and if
twelve of them concur in it, they are to inform the attorney
general of the fact, and he draws up a presentment, which is
precisely in the form of an indictment, bxcept that it is not
signed by him, but by the grand jurors. They then return it
into court, and the same proceeding takes place on it as on an
indictment. 1 Hum. 290, 39G; 9 Yer. 389; N. 8. 136 sec 4;
Hum. 17; Meigs 112.
A presentment cannot, ordinarily, be made, except upon the
knowledge of one of the grand jurors. But: there are a few ex¬
ceptions. 1. In the case of gaming, which is playing at, bet-
137
ting upon, or encouraging any game of hazzard or address,
for money or cither valuable thing, if the grand jury have a well
grounded belief that the offence has beeh committed, they are
bound to demand a subpoena for any witness, whom they may
belie ve has .a knowledge of the facts. When the witness appears,
the attorney general has him sworn in court, "that the evidence
he shall give the grand jury under the statutes to suppress and
prevent gaming, shall be* the truth, the whole truth, and noth¬
ing but.the truth." The constable then takes him before tlm
jury, and'he is bound to inform them of any cases of gaming
of which he may have knowledge, and which occurred at any
time or place, about which they may examine him. C. & N.
359, 360.
2. Betting on elections, illegal voting and unlawful conduct
in conducting elections. Upon a wrnlf grounded belief ; the
jury may have the inspectors, clerks and officers holding the
election, ^ubpoenad as witnesses and. sworn to give evidence
before them of all the knowledge they may have of any such
offences. N. S. 155, sec. 14.
3. Tiplingx, or retailing spirits unlawfully. When the grand
jury "suspect a violation of the act" of 184^ron this subject,
it is their duty to send for witnesses to give them information
in regard to it. •
When upon the information derived from witnesses in any of
these cases, the jury are satisfied that any person is guilty of
the offence, they inform the attorney general, who draws up a
presentment, which is .signed, by* -all the jurors, and brought
into court, and filed as other presentments. 9 Yer. 389.
Sec. 237. Capias. W7hen an indictment or presentment is
returned against a defendant/who is not in jail, or under a
recognizance' to attend, a Capias is ordered to issue immediate¬
ly, returnable to the same term, if it is thought expedient;
otherwise it issues as soon as the court adjourns, and is return¬
able to the next term. Criminal process may issue at any
time and be made returnable to any day of the term. C. & N.
547, sec. 10.
C APIAS.
THE STATE OF TENNESSEE.
To the Sheriff of Wilson County.
You are hdfeby commanded to take the body of John Smith,
and have him before the-circuit court of Wilson county, at the
court house in Lebanon, an the fiij-st Thursday after the first
Monday in December next,-to answer the State of Tennessee
on a charge of assault and battery, and have you then & there
138
this writ. Witness, William Hart, clerk of said court at office
in Lebanon, the first Monday in August, A. D. 1852.
W.HART, Cl'k.
On this writ the Sheriff is to take the defendant, and commit
him to jail, if it is not a bailable offence, or if he fails to give
bail. All offences are bailable' by our law except murder in
the first degree. For any inferior offence the sheriff may take
bail, in a sufficient sum to secure the defendants .appearance.
C. <k N: 119. If. betakes insufficient bail, knowingly, and
lets the defendant go without bail, he is liable to indictment.
The bail bond is the same in substance as that entered into
before the justice, this being in the form of a bond. Sec 232.
The sheriff returns the bond to court with the writ endorsed,
execUfed and.bail bond taken. If the writ is returned by the
sheriff not found, an alias issues, and if that is returned not
found, a pluries, and so on until the defendant is taken, or a
nolli prosequi entered by the State's Attorney:
A Capias may be issued to any county in the State. The
clerk is to include all defendants who are jointly indicted" in
one Capias, unless ordered by the attorney general to do other¬
wise.
Sec. 238. Bail may at any time takp the defendant and
surrender him to the sheriff, who must thereupon take other
bail, or commit the defendant to jail. C. & N. 118, sec. 15. 120,
act 1827.
Sec. 239. It is the duty of the court to set apart some dayof
the term, for the trial of criminal cases. C. & N: 240.. When
that day, called Slate's clay, comes, the State docket is taken
up, and the cases disposed of in some way. By consent of the
court, the attorney general may take a nolli prosequi in a case,
and then the clerk makes the follqwing entry:
State \
vs. > Indictment. Assault and Battery.
John Smith,)
Came the Attorney General, and with the assent of the court,
says he will no further prosecute the defendant. It is there¬
fore ordered by the court that the defendant be discharged, and
that the State pay the costs of this prosecution.
If the State's witnesses do not appear, he may take forfei¬
tures against them, and also have an attachment against them
to bring them in to testify, if on affidavit of the prosecutor or
himself, it appears they are wilfully absent to avoid giving
evidence. The defendant may take the same courg^with his
witnesses. ' * . "
139
If the defendant <does not appear, he and his bail, are to be
called out by the attorney general, and judgment nisi, taken
against them as'follows: ,■
State of Tennessee )
vs. C Forfeited recognizance.
John Smith & David Smith, )
Came James L. Scudder, the attorney general for the State,
and the defendant John Smith, being solemnly called to come
into court, and answer the S.tate on a charge of assault and
battery on the body of 'James Hart, according to the tenor of
his recognizance, comes not, but makes default; and the said
David Smith, the surety of the said John Smith in said recog¬
nizance, being also solemnly called to bring into court here,
the body of said John Smith, to answer the State on said
charge, according to Jhe tenor of the said recognizance, brings
him not, but makes default. Therefore it is considered by the
Court that the State of Tennessee recover of the said John
Smith one thousand dollars, and of the said David Smith one
thousand dollars, according to the tenor of the said recogni¬
zance, unless tkey show sufficient reason for their default at
the next t,erm' of this court.
On thil judgment a Scire Facias issues against each defend¬
ant, on the return of which, executed, the defendants may
plead or demur to it, or the court may, if it appears the de¬
fendant was in.no fault, set aside the forfeiture on * affidavits.
C. & N. 338; 6 Yei\ 354; 5 Yer. 183; 4 Hum. 226.; Meigs 232,
473, 93; 3 Yer. 280; 9 Yer. 386.
Notwithstanding this forfeiture, the defendant is: still liable
to a Capias, and the Capias and Scire Facias will both be run¬
ning against him at the same time. Nothing but an acquital
or conviction or nolli "prosequi discharges him from the prose¬
cution. He may have to pay the forfeiture for not appearing,
and also suffer the penalty of. his offence. But generally when
the defendant is taken and brought to trial, the court will re¬
mit the forfeiture, on payment of the costs.
Sec. 240. Arraignment. When the defendant is by any
means brought into court upon an indictment or presentment,
the first step i3 to arraign and charge him. This is done by
calling upon him by name-; he answers the call and Acknowl¬
edges his name by holding up his right hand. The clerk or at¬
torney general then reads the indictment to him, and calls upon
him to say. whether he is guilty or not guilty. This ceremony
is only observed, when the indictment is for a felony. In mis¬
demeanors it is simply announced to the defendant that he is
indicted for a certain crime, and he is asked whether he is guil¬
ty or not.
140
Submission. If the defendant pleads guilty, it is called a sub¬
mission. If he submits in a case of misdemeanor, the court
proceeds to examine witnesses on both sides as* to the charac¬
ter of the offence, and inflicts such fine and imprisonment as
the case may seem to deserve. By the" constitution the court
cannot, inflict a higher fine than fifty dollars. C. & N. 5T, sec 14.
Where the amount of the fine is fixed by statute, that, of
course, may be adjudged by the couft. In some cases, fine is
the only penalty; generally however the conrt may impose im¬
prisonment also.
If it is a penitentiary offence in which a defendant submits,
it must be submitted to a jury, to determine the period of his
imprisonment in the penitentiary, between the minimum ai^d
maximum fixed by the statute. C. & N." 241. If it is a case
of homicide, a jury must decide the degree of guilt. C. & N.
317, sec. 3. *
Sec. 241. Pleading. The defendant may demur to the in¬
dictment for insufficiency. If his demurrer is overruled, he has
a right to plead in a case of felony, but not iri a case of mis-
deamor, but by leave of the court for good reasons. 2 Yer.
472. If he does not demur, he may take advantage of insuf¬
ficiency of the indictment on the trial. He may inove to
(juash the indictment, for insufficiency, but the court, is not bound
to quash it even if it is defective. Meigs 192. He may plead
in abatement, that he is not indicted by his true name, that
one of the grand jurors was not qualified, and other things.
1 Meigs Dig. 604.
He may plead a former conviction or acquital for'the same
offence. 9 Yer. 333, 357, 375; 6 Hum. 410; 2 Yer. 24. And a
conviction and punishment for one felbny, is a good ple,a to an
indictment for any other felony not/capital, committed before
that conviction. M. & Y. 122.
The next and the common plea,is not guilty. It is pleaded
orally and entered by the clerk on the minutes, as follows:
Entry of Arraignment and Plea.
" Came the attorney general for the State, and the defend¬
ant in proper person, who being arraigned and charged on
the indictment, says he is not guilty in manner-and form as
therein charged, and for his trial puts himself oir the country.
And the attorney general doth the like."
Two pleas are not allowmd, as in civil cases. 2 Yer. 248; Peck
165. Nor can a defendant appear and plead by attorney, ex¬
cept in misdemeanors, and 'only* then when his personal ap¬
pearance is wmived by the attorney general.
Continuance. The case may,be continued on the same grounds
141
and in the same way as in civil cases. There is this addition¬
al ground in' a criminal case; if the defendant will make oath
that there exists too great an excitement to his prejudice th
corpe to trial, at the first term, it is good cause for a continu¬
ance for that term only . C. N. 701.
On a continuance the defendant must enter into recogni¬
zance for his appearance at the next term, or be committed to
jail. AH the witnesses who are attending under, recognizance,
must be again recognized to appear at the -next term, but se¬
curity cannot-be required *)f them, unless, perhaps, upon affi¬
davits, showing very satisfactorily that ffiey would not likely
attend, such as would be sufficient'to warrant an attachment.
Witnesses who are attending under subpG&na, are*by statute,,
bound to attend from term to term until discharged.
Change of Venue-.
There can be no change of venue in criminal cases upon the
motion, either of the State's attorney, or of the defendant. It
can only be done by the court, when upon an attempt to get
a jury, the judge shall be of opinion that a fair and impar¬
tial trial cannot be had. He may change the venue to any ad¬
joining county, that he considers free from exception,-whether
in the same, or a different*circuit; and either with or without
the defendants consent. The defendant and the witnesses are
to be recognized t6 appear at the court to which the venue is
changed; and the clerk must make out and file there a com¬
plete transcript of the record. C. & N. 701; N. S. 130, 1850
chap. 94.
Trial.
Sec. 242. Every criminal prosecution stands for trial at the
term at which the indictment is found, where the defendant
has been committed or recognized to appear. Where he is
taken afterwards and brought in during the term, it still stands
for trial, but the court would be indulgent to an application for
a continuance.
Jury.
The first step, in the trial is, for the sheriff to furnish a pan¬
ne! of jurors, taking first the original pannel, if they are not
engaged in some other trial, and adding to them bystanders
enough to make the number equal to tli£ number of pe¬
remptory challenges to which the State and the defendant are
entitled, and a jury of twelve. In misdemeanors, the State
and the defendant are each entitled to five challenges. In
homicide, the defendant has thirty-five, and in other felonies,
twenty-four, and the State has ten in all felonies. So that a
pannel in misdemeanors is twenty two; in homicide fifty seven;
142
In other felonies forty six. C. & N. 424. When this pannel is
furnished, the defendant is entitled to a list of them that he
may know how to make his challenges. They are called to
the clerk's box and sworn as they stand on the list, unless the
State's attorney or defendant requires them to tie balloted for,
& in that case the clerk writes their names on slips of paper &
puts them in a box, and they are drawn out by a child under
ten years of age, and .the first twelve drawn constitutes the
jury, unless they are challenged. C. & N. 421, sec. 13. If they
are challenged for cause, the* they are sworn and examined
as to the alledged cause. They must have the same qualifica¬
tions in criminal as in civil cases. See Sec. 75.
It is usual in trials for felony for the defendant to challenge
the whole pannel at once; and then as they are drawn, they are
sworn " to answer truly such questions as shall be asked them
touching the present inquiry. " They are then asked by the
clerk the following questions: Have you formed and expressed
an opinion as to the guilt or innocence of the defendant ? Are
you related to the defendant or the prosecutor? Are you a
house-holder or free-holder in this county ? Other questions
may be asked the proposed juror concerning his qualifications.
6 Hum. 249. But if he answers the two first- in the negative,
and the last in the affirmative, he is not usually examined
further, but the clerk at once asks the attorney general if he
passes him, the object of which is to give him a chance to chal¬
lenge the juror peremptorily; if he passes him, then the clerk
asks the defendant if he likes him, when, if he does not chal¬
lenge him he takes his seat.
If the pannel in the box is exhausted before twelve jurors
are obtained, then the sheriff must return another pannel,
composed of the same number as the first, subtracting there¬
from the number elected and peremptorily challenged. You
proceed in the same way until twelve are elected; they are
then sworn as in a civil case. See the oath, Sec. 76. These so¬
lemnities are not in practice observed in trials for misdemean¬
ors; but inlaw the parties have the same right to all the means
of obtaining an unexceptionable jury in them, as in felonies.
Sec. 243. When the jury are sworn, the next step is for
the attorney general to read the indictment to them, and the
defendant's counsel verbally announces that his plea is not
guilty. The witnesses are sworn and always put under the
rule in felonies, but never in misdemeanors, except on the spe¬
cial motion of one of the parties. The trial progresses as in
civil cases. The defendant, in trials for felony, must be al¬
ways present; The jury must be kept together, under an of¬
ficer, sworn to keep them together, separate from ail other
143
persons, to,permit no one to speak to them on any subject, nor
to speak to them himself iri relation to the trial. Shpuld they
return info court to hear the evidence *br receive an explana¬
tory charge from the court, the defendant must be present.
They may give either a general or special verdict.
If the jury cannot agree they may by consent of the de¬
fendant, be discharged. But without his consent it cannot be
done, except in a case of necessity. As,.where the defendant-
becomes unable to attend, where the court is obliged to adjourn
to hold another court, where some of the jury get too sick to
proceed, where the effort to agree has been so protracted, that
ifhere is evidently, no possibility for them to agree, where the
the defendants misconduct gives him an unfair advantage, and
puts it out of the jury's power to investigate his-case correctly.
If without any such case of necessity, and without his consent
the jury are discharged by the Court, the ^defendant never can
be lawfully tried again, but must be discharged. 10 Yer. 532;
1 Hum. 253, 102; M. & Y. 278; & Hum. 70; 5 Hum. 601. In
such cases, the defendant may move to be discharged, either at
the term when the mistrial is entered, or at the next term, and
except to the opinion of the court, overruling the motion, but
he cannot appeal to the supreme CQurt, until he is convicted.
New Trial. . Bill of Exceptions. .Motion in Arrest.
Sec. 244. New trial. If the defendant is acquitted, there
can be no new trial in any case. 1 JTenn. 334; Meigs 190;
6 Yer. 360. Nor can he be indicted again, if he could have
been convicted on the first indictment, on the facts stated in the
last. 9 Yer. 357,375.
If the defendant is convicted he may move for. a new trial
upon the same grounds as in a civil case. See Sec. 91, p. 57.
In addition to those, we may mention,
1. Overruling well founded challenges to jurors, as in the
ordinary case of challenge for favor, on account of the juror's
having formed an opinion. If upon his examination, it obvious¬
ly appeared that he had formed an opinion, yet the court recei¬
ved him, a new trial should be granted. But if a challenge for
cause, is improperly overruled, and the prisoner challenges the
juror peremptorily, and afterwards gets a jury before he ex¬
hausts his peremptory challenges, it is no ground for a new
trial. 3 Hum. 315; 4 Hum. 270; 9 Yer. 193.
2. Separation of the jury'long enough to be tampered with.
10 Yer. 241. But any little misconduct, which it is shown
could not have been attended with bad consequences will not
vitiate the verdict. 4 Hum. 27. See on this subject, 1 Meigs
Digest 392, 399.
144
If there are two defendants one may,have a new trial. If
there are several counts in an indictment, and the defendant is
convicted on one and'acquitted on thfe others, he may have a
hew trial on the former, but he never can be again tried oh the
latter. So oh an indictment for murder, if he is found hot
guilty of murder, but guilty of manslaughter, he may have a
new trial for manslaughter, but can never be tried for murder.
9 Yer. 333; 6 Hum. 410.
BUI of Exceptions. If the motionfqr anew trial is overruled,
the defendant, if he wishes to appeal, should file a bill of ex¬
ceptions. This is dope'in all respects, a3 in civil cases. See
See. 94, p. 58.
A motion in arrest of judgment, maybe made as in Sec. 95,
p. 60, in which the defendant may take advantage of the errors
which he might have,taken advantage of by demurrer.
The effect of, arresting the judgment, is the same as sus¬
taining a motion to quash, or a demurrer; the defendant is
discharged, unless on motion of the State's attorney, he is. held
on his recognizance, to answer to a new and sufficient indict¬
ment for the same matter.
Sec. 245. Appeal. When the motion in arrest or for a new
trial is overruled, the defendant may take an appeal in the na¬
ture of a writ of error to the supreme court. 6 Yer. 362,373.
He has no security to give, as in civil cases, for costs or fines.
He must however enter into a recognizance with good security
to appear at the supreme court, to answer the State on the
charge, or he must be committed to jail, and the sheriff of the
county where he is so committed, must convey him to the jail
of the county in which the supreme court is held, if ordered to
do so by the circuit court, whiph' should always be done.
If he does not take an appeal in error, he may obtain a writ
of error at any time within a year, as a party in a civil case
may, no security for costs being required, nor will it operate as
a supersedeas without the fiat of a supreme judge, and on his
giving a recognizance for his appearance.
The attorney general may also have an appeal in the nature
of a writ of error, or a writ of error from the judgment of the cir¬
cuit court, sustaining a demurrer to the indictment, or a motion
to quash it, or in arrest of judgment, or on a special verdict, or
on any other final judgment in favor of the defendant, except
on a verdict of acquital. Meigs '190; 5 Yer. 363; M. & Y. 137,
168. .
Either the State or defendant may appeal from the judg¬
ment of the court on a submission by the defendant. For the
court may inflict punishment which is illegal or too severe.
145
PROCEEDINGS IN THE SUPREME COURT.
Sec. 246. It is the duty of the clerk to send up a transcript
of the record, to the clerk of the supreme court, by mail or
otherwise. N. S. 137, sec. 5. if the defendant has given a re¬
cognizance, and does not appear, the attorney general takes a
forfeiture, as in the circuit court, and a Capias may also issue
to bring in the defendant. In misdemeanors, however, the at
torney general may waive his personal appearance, and re¬
ceive his appearance by attorney. If the defendant has not
given bail, and has not been delivered to the sheriff or jailor of
the county where the supreme court sits, but is still in jail in
the county where he was tried, the supreme court .orders the
sheriff of the county where it is sitting, to go and bring him.
When he appears before the court in a case of felony, although
he is on recognizance, the court orders him into the sheriff's
custody, and thereby discharges the bail; and during the ar¬
gument of the case, he is, in the recesses of the court, com¬
mitted to jail.
The case is conducted and disposed of as a civil case is, the
judgment of the court below being affirmed or reversed as
there may or not appear to be error in its proceedings; and
such judgment is given as the court below ought to have
given. In a civil case or a misdemeanor, the supreme court
will rarely give a new trial on the ground that the verdict is
contrary to evidence, but in cases of felony they will 'do so
when they are satisfied that the facts do not warrant the ver¬
dict. M.&Y.294;2 Hum. 440; 3 Hum. 289; 4 Hum, 270;
5 Hum. 128, 436, 552.
Sec. 247. Upon a reversal of the judgment on the ground
that a new trial ought to have been given, the court takes the
defendant's recognizance to appear at the next term of the cir¬
cuit court to answer the charge. In cases of misdemeanor it
is the duty of the circuit court, when the appeal is taken, to
take defendants recognizance to appear at the next term of
the circuit court after the decision of the supreme court, to
answer the State according to the decision of the supreme
court. 1852, ch. 159, sec. 3,
If the supreme court reverses the judgment, in favor of the
defendant, on the ground of insufficiency of the indictment, or
for other error, which would sustain a motion in arrest of judg¬
ment, they may either discharge the defendant, or remand him
to the court below. If it seems that there is no sufficient
ground for the indictment, they will discharge him. Rut if
they see in the record sufficient evidence of his guilt, they may
recognize or commit him to appear again at the circuit cow&
to answer the charge, on a sufficient indictment.
10
146
By the act -18S2* has beeii a trial on
the merits, the failure' rec^i the plea,, bf not
guilty, the 6rriissi$ri4;o ma^ya!;pr,Osbcutor bh the indictment,
tiie omission of tl^clerktp*seud ftp .the caption, or a defect in
the caption bf the record, Or his omission to 'eiitef on the fnin-.
utes that the grand jSfcy. hadTethrneddhe i'lidifetihent into open
court, ,or d faiiure *to sfat6tin the feeotd that'- tho venue, was
proved, sh^liriot^he'causes Of reversal. • ,
Sec. 248. .• '..'the.-'- judgment': 'is -.affirmed', the - supreme ^
court proceeds to havb the sentence below executed. If
the penalty is rd'^athy .thiey1:.pronoune'e' the sentence, and
have the defendant, hung either where the court is held or
in the county where the offence was committed, at thedr dis-
x retion. But upohdheir certificate that there were -extenua¬
ting. circumstances,'the Goyernor may commute the punish¬
ment of death for imprisonment for life in the penitentiary.
N. S . 128. Ifi penitentiary cases, they send the conyict to' the
penitentiary. In misdemeanors ^ they fine or imprisonusual¬
ly according to the judgment of the Circuit Court. They may
however.reverse the judgment in part by remitting the impri¬
sonment altogether, or by reducing the fine or imprisonment.
Sec. 24®. Let us now return to the circuit court and trace
out the history of a case there, when there is no appeal.
On a submission, the defendant is fined or imprisoned, or»
both, if it be a misdemeanor. When fined he is ordered into
the custody of the sheriff, or in other words, he is imprisoned,
until the fine and costs are paid, or secured by some friend con¬
fessing judgment jointly with him for the same.
The entry runs thus:
Came James L. Scudder, the attorney general, and the de¬
fendant in proper person, and the defendant being arraigned
on the indictment, says he is guilty as therein ^charged. It is
therefore ordered, that for his offence he pay a fine of fifty dol¬
lars and the costs, and that he be imprisoned * Until the fine and
costs are paid or secured. Then came David Smith, and as
the defendant's security, confesses judgment jointly with him
lor the fine and costs aforesaid. It is therefore considered by
the court that the State of Tennessee-recover of the defendant
and the said David Smith the fine and costs aforesaid.
Upon this judgment execution issues against the defendant
and the security, and if the security has to pay it, we have
seen that he may have jvdgmentby motion against the princi¬
pal. Sec. 129, p. 77.
If imprisonment is also a part of the sentence, insert in the
entry, after the asterisk* the period of imprisonment, as, one
month, and the balance of the entry will be the same.
147
If he does not give security, he will be in the sheriff's cus¬
tody as if he were taken on a Ca, Sa ; and may ^he-
fit of. the; old-Jaws ior the benefit of insolvent debtors, which
are now rendered nugatory in civil cases, by the abolition of
imprisonment for debt in 1842. The defendant takes advan¬
tage pf those laws, in two ways. 1 By giving ten days notice
to the attorney general that he will take the insolvent oath be¬
fore a cirdait judge or twp justices at a given time. He pe¬
titions the judge or justices, stating the facts on oath, to have
him brought before them to take the oath—and they grant their
warrant to have him before them at the time. The oath is,
that he is not worth ten dollars, above what the law allows him,
and that he has not assigned any of his property for his own
use, or in fraud of his creditors. If the judge or justice is
satisfied of the truth of his oath he is discharged. C. & N.-387.
2. He gives a bond with security to the State, conditioned that
he will appear at the next term of the court, and .pay the fine
and.costs, or surrender his property, or take the above oath. If
he does not .appear and do one of the three things stipulated,
judgment is rendered against him and his surety, on the bond.
G. &N. 393; 1 Yer. 493; 2 Yer. 247; 4 Yer. 166,682; 6 Hum.
391. * - ^
Sec. 250. Verdict and judgment on a plea of not guilty.
The entry of the arraignment and plea is set out in Sec. 319.
If the jury is empannelled immediately, proceed thus:
"Then came also a jury of good and lawful men, to wit: A.
B. & C., who being elected, tried and sworn the truth to speak
on the issue joined; upon their oath do say, that the defendant
is not guilty in manner and form as charged in the indictment.*
Therefore it is considered by the court that the defendant be
acquitted and discharged, and that the State pay the costs of
the prosecution."
Strike out not, before "guilty," and you have a Verdict of
conviction, and then the judgment is the same as the above
judgment on a submission, and the same course is pursued as
to giving security for fine and costs, imprisonment, taking the
benefit of the insolvent laws, &c.
If it is a penitentiary case, the entry of acquittal is the same.
The verdict of guilty is the same; but it goes on after the word
indictment* thus:
" And that for his ,offence he be imprisoned in the peniten¬
tiary of the State five years. It is therefore considered by the
court that the defendant be imprisoned five years in the com¬
mon jail and penitentiary house of the State, that lie he dis¬
qualified for holding office' and Be rendered infamous, and that
he pay the costs of this prosecution. It is further ordered that
148
the sheriff iD^'WiJiSdi* county fetfefe^ony^
to the'p^^kfiacy^1', • ■■•-;, , »/'•' >', .
If it is fefefetment ftf homicide,, the jury mmst fed wheth^
or it be .murder in the first, or second degree, or manslaughter.*.
If they fed it the first degree^ the verdict runs thus1: ,
«• Dd say5 iMi' the' defenda^ is of _ murder in the first
degree, in manner and form as charged in the indictment."
Then follows the judgment of death, thuS: •
" And'thereupon it is demanded of the defendant if he hasr
any thing to> say, why the couyt should not proceed to judg¬
ment against him oh the Verdict bf the jury? who' nothing;1
farther says; ufiless as he before,has said! It is tferefbre' con¬
sidered by the court that the defendant^John Smith he taken to^
the jail of Wilson county, ffpm whence he chme, and that ho
betakfen from thence by the sheriff of Wilson county on J^ri-*
day the first day of October, 1852, to some place within one
inile of the court house in. Debanon, atid there between the
hours of 12 and 2 o'clock, affcerfioom be hanged by the neck
until he is dead. It is further considered that the defendant,
pay the-costs of this prosecution. " ^
If the jury think there are mitigating circumstances they
may so.find., thus: -
" And they do further say that there were mitigating circum¬
stances in the defendant's case. "
Upon this sort of verdict, the court sentences the defendant ,
to imprisonmnent in the, penitentiary for life. N. & S. 128!;
Verdict. Mulder in Second Degree,
" Say, they find the defendant not guilty of murder in the first
degree, but that he is guilty of murder in thegeoond degree, in
manner, &c., and they further say. that he be imprisoned in
the penitentiary of the State, fifteen years for said offence."
manslaughter.
" Say that the defendant is not guilty of murdej* in manner,
&c., but that he guilty of the feloniously slaying of the afore¬
said James Hart, and that he be . therefor imprisoned in the
State penitentiary five years."
Sec. 251. Where property is stolen, the jury, ©n corivict-
ing the defendant, shall ascertain whether iVhas been restored
or is forthcoming to be restored to the owner, and if it is not,,
they shall find its value, and the court shall give judgment thai
it be restored to him, if it can be done; and if not, that the '
owner shall have execution for the value of it. And when
property has been destroyed, or any person defrauded by any
of the offences enumerated in the penal code of 1829, the jury
.shall ascertain his damages in their verdict, and the court shall
149
give therefor328,;$ec. 79... -
Sec. ^52. $zecutioiu - "When the judgment is for fine and
costs, execution issues .against the defendant's -estate* If he
has ri%t. given security fi^it,a Capias may.issue. If the judg¬
ment includes imprisonment,and the defendant Is in custody,
the sheriff Immediately takes him to jail. , If he is not pre¬
sent a Capias issues to take him and put him in. jail for the pe¬
riod adjudged. j •
In penitentiary casesvthe sheriff's warrant for conveying the
defendant to the penitentiary, and the .agent's warrant for re¬
ceiving him, is a copy of the record of conviction. The clerk
issues execution against his estate for the costs, and for the
,damages recovered by any person. C. & N. 329, Sec. 81. On
judgments of death, a .copy of the judgment, which we have
;seen, fixes the time.and place of execution, is the sheriff's
.warrant for executing, the sentence. No wa-rant or other pro¬
cess issues. A Fieri Facias issues for. the costs. C. & jV« 192.
.'Costs in Criminal cases.
"Sec. 253*. Costs are regulated altogether by statutes. The
courts can give no judgment's for them, except-where there are
statutes authorizing it. 2 Yer. 578; 3 Hum. 12. By the forms'
of entries given above, it will appear that by our laws judg¬
ments are given for costs, in some cases against the State, and
In others against the defendant.
When judgment is given against the State for costs, in cap¬
ital or in penitentiary cases, they are to be paid out of the trea¬
sury -of. the State. In other cases, they are paid out of the
county treasury. Judgment is given against the State for
costs, in the following cases.
1. In cakes where the defendant is discharged, by a verdict
6f acquittal:, a nolli prosequi, on a quashing of the indictment
on motion or demurrer, by arrest of judgment, by abatement of
the indictment in consequence of the death of the defendant,
where recognized by a justice to appear, and no bill is prefer-;
red, or in a penitentiary case, is in any way discharged.
2. When the defendant is convicted and proves insolvent:
and unable to pay the costs. Then the court may in its dis¬
cretion tax the costs against th'e State, spreading out on the re¬
cord each item of costs so allowed.
When the defendant is acquitted, the court may tax the
prosecutor with the costs, if tthe prosecution appears tobe'friy-
oloes and malicious.
The State is never taxed with the. 'costs of the defendants
witnesses. iC. & N. 191 &c.; N. S. 110 &c.
When a^defendant is acquitted in a. case of misdemeanor,
150
no costs are taxed to the county", except jailors fees, the at¬
tendance of witnesses for the State, and the sheriffs fees for
summoning them. C. & N. 194. When a, nolli prosequi is en¬
tered in such a case, or it is otherwise dismissed, the attorney
general is to have no fee ; nor in any case where the State or
eounty is charged with the costs, in consequence of a defect
in the indictment or presentment, nor is the clerk entitled to
any fees which may become chargeable to the State or county
in consequence of any omission or defect of the record made
by him. N. S. 112,
Where several are concerned in an offence, they are to be in¬
cluded in one indictment, and there is to be but one bill of
costs, unless the defendants sever in their trials. Before a bill
of costs is paid, it must be made out by the clerk, examined,
and certified by the attorney general and judge, to be correct.
Then if it is to be paid by the State it is presented to the
comptroller of the treasury, and if allowed by him, he gives
the clerk of the court a warrant on the treasurer for it. If it
is payable out of the county treasury, it is to be presented to
the county court, allowed by them and ordered to be paid by
the county trustee. The whole bill of costs is to be paid only
to the clerk or his order, when the State pays It. When the
county pays it, each claimant gets a certificate of the amount
due him, from the clerk* and presents it to the trustee.
Costs that accrue subsequently to the judgment of the court,
such as jail fees, conveying the prisoner from one -county to
another, &c, may be allowed at a subsequent term,. C. & N. 192.
The fees to which all officers are entitled in criminal and
civil cases will be found in Caruthers and Nicholson, and in
the appendix to the Acts of 1851. They are all clear enough,
except perhaps the fees of the attorney general. These are as
follows: 1. When a defendant is convicted.—-In a capital case
$20; in perjury $15; in other penitentiary cases $10; in mis-
deameanors,$5, except in the case of overseers of roads, in
which it is $2,50. 2. W^here defendant is acquitted.—In capital
and penitentiary cases $5; in misdemeanors nothing. 3.
Where ci defendant is discharged by nolli prosequi or otherwise—In
capital and penitentiary cases $3; in misdemeanors nothing.
Although he is entitled to $5 on conviction in misdemeanors,
yet if the county has the costs to pay in consequence of the
defendants insolvency, his fee is reduced to $2,50.
Trial of Slaves.
Sec, 254, The circuit court has exclusive original jurisdic¬
tion of capital offences committed by slaves. They are to be
indicted or presented by a grand jury, and tried in the same
151
way in all respects that fr,ee-fiien are, the master being allow
ed to superintend the trial. Cv& N. 683; N. S. 118.
Slaves are punished with death for the following offences:
1. Murder. 2. Arson. 3. I^urglary. 4. Rape. 5. Robbery.
(C. & N.,679.) 6. An assault upon*a white female with intend
to commit a rape, (C. &3Nh 683; N. S. 138,1852 p. 251.) 7. An
assault and battery upon a £ree .white person, with intent to
commit murder in the Jr/t'degree; (C.,& N. 683. 8. A con-
-spira^cy of three or more to rebel. "Death or any less punish¬
ment at the discretion of the court* (C, & N. 682, Sec. 4; 674,
Sec. 17.) 9. Preparing, or exhibiting, or b9eing accessory to
the administering..of any poison, potion or medicine, with in¬
tent tp kill any person. Act 1852, p. 251. ;
" As. to offenpes not capital, they are first brought by warrant
befoje a-.justice, (yvifh whom any other justice who chooses
may sjtj arid if *he thinks it a trivial offence and not deserving
_ of more than forty stripes, he' may proceed to examine the
" case and inflict the punishniento. If he think it a ♦high offence
and deserying' of heavier punishment, he isSu.es his precept to
tbe^sharjfi*, Abmmaniflng.hini to summon three justic'es, and
nine'freeholders or slaveholders, wfio are to examine the case,
and iMi.ct such punishment, short of life or limb, as they may
think»j}isj. *' A majority of the .twelve may decide the case.
2 Saott.246; 1 Scott 279; If) Hum. 531; 11 Hum. 159. There
are several statutes specifying the mode of trial and punish¬
ment for particular offences. They of c/rnrse are to be pur¬
sued^-It where, thefe are no such specific provisions, that
the above mode is to be observed.
We have already seen that fhe owner of a slave may appeal
to the circuit, court from a conviction' by justices. Acts 1847,
-.page-84. 1 .
In capital cases, appeals in error, and writs of error are al¬
lowed, a's in the case of freemen. And the owner may bail the
slave, when the case is such that a freeman would be bailable,
that is, where the proof is not evident or the presumption great.
C. & N. <679, 1825, Sec. 4, 5, 8.
LIMITATION OF Prosecutions.
Sec. 255. There is no limitation to prosecutions for felonies.
Prosecution by presentment or indictment, for misdemean¬
ors, must be dbtnrn^nced within twelve months after the offence
is committed. ,C. & N. 445.
Prosecutions .for gaining, cojmmenced within six months
after thb offence is <^ijj,^fitted... C. & N. 444. For betting on
elections f within six months after the election is over. N. S. 156,
Sec, 17,
EXPLANATION.
This little book is intended for the students in the Law
School of Cumberland University. The Moot Court system
adopted in the school, requires them to commence^ suits and
prosecute them through all their processes. For this, purpose
they need such a manual as this. There is enough of it to
serve as a general directory; a larger work would confound
them by its details. The defects involved in its brevity, may
be remedied by explanations iii the course of their recitations
and Moot court exercises.
Authorities are not referred to in the text of the first part of
the work, because references would rather embarrass than en¬
lighten the beginner. Anindexisso prepared, as to furnish
the student ample'references. The Statutes and Meigs Digest
are referred to under every head, and the subsequent volumes
of Humphrey's Reports, and other text books, where it was
deemed necessary. The student thus has the double advan¬
tage of being unembarrassed by references in the text, and yet
having access to them in the index when needed in practice.
In the latter part of the work, references to the authorities are
■embodied in the text.
Those who do not expect to practice law in Tennessee, will
still find incalculable advantage in a Moot court practice, ac¬
cording to Tennessee law. They will have a standard of com¬
parison and of contrast, which will enable them readily to
familiarize themselves with the law pf practice mother States.
The prominent features iu the history of a lawsuit, must ibe es¬
sentially the same, in all the American courts, however great
may be the diversity in details.
As the work may be deemed useful to them, by young at¬
torneys, a few copies have been published, beyond what it is
supposed will be necessary to supply the demands of the
school.
153
Abreviations.
M. D. Meigs Digest.
G. & N.' Caruthers Nicholson,
N. §. Nicholson's Supplement.
Tenn. Tennessee Reports. ,
M. & Y. Martin & Yerger's Reports,
Yer. YergeFs Reports.
Hum. ' Humphrey's Reports.
Ch. PI. Chitty's Heading.
G.vEv. Greenleaf's Evidence.
" ' 1' • « ^
Acknowledgements are due to Mr. Meigs, from the author,
the, studentgapct the whdle bar" and bench of Tennessee, for
his dhvaluable Digest. It is certainty, superior to , any similar
work yet published,, and ddserves a pre-eminent place among
the labor-saving achievements of the active intellect of this
age.. ' ,
'•Errors. :
So'n\e errors hasve been'discovered, and doubtless others will
be hereafter. - Some have been corrected in the ^ body of the
work; others are here corrected.
1. Exemptioni froth Service qf process, p. 14, sec 1G.
Members of*Cohgre^s>and the Legislature are only privileged
from arrest, not from sumrrfons : neither are jurors according
to the decision in Grove vs. Campbell. 9 Yer. 7. That deci-
si^R does not refer to the act of 1777', ch,8, sec 6. (C. & N. 665)
wllieh provides that no officer shall "execute any writ or other
process upon'any person summoned as a juror or witness."'
The - argument-and. the opinion of the court is based on the
act?of 1779, ch. 6, sec 11. (C. & N. 421) which forbids theser-
vicebf any process on the body of a juror. The act of 1794,
ch. 1, sec 34, (C, &N. 712) exempt's a witness from the service
of. any process, except "a summons for witness," Was the
warrant in Grove vs. Campbell "any process?"
2. Page 37, Sec 64, snould be 1850 ch. 24, instead of 54.
3. Page 44, £*>ec 75, "A juror must be" should be placed be¬
tween "1. Defect" and"a citizen," so as to read "A juror must
be a citizen."
4. Page 33, S,ee 54. The judgment against the witness is
erroneous according to Dickerson vs. Kincaid, 11 Hum. 72,
because it does not recite the time when the subpoena issued,
who issued it, when and by whom it was executed. Although
it is merely interlocutory, and process of Scire Facias issues
according to the course of the common law, and the defendant
is thus brought in to answer, yet that decision puts it on the
footing of our absolute summary judgments on motion, which
154
must show all the faets on which they rest. The entry is made
on approved precedents, but it must not be adopted in Ten¬
nessee. -
5. Page 69, Sec 111. Execution in detinue. Distringas must
issue before Fi. Fa. according to Waiters. Dobbs, 8 Hum. 406.
6. Between ^Judge" page 80, and "on" p»8i, insert "writes."
7. Page 85. By act 1852, p. 672, five days before court is
the time for the service of subpoenas in chancery, making the
time for the execution of leading process the same in the
county, circuit and chancery courts.
8. Page 114, Sec *195. "paricts" should of course read parties.
9. Jurors, after they are elected in a capital case cannot
seperate, even by consent of attorney general^ defendant and
eourt. ft vitiates their verdict. »11 Hum. 502;. '
10. Page 137, JTipling. Should read "the act of 1846," in¬
stead of 41. SeeN. S. 292, Sec. 13.
11. Page 139.' Judgment on forfeited recognizance. If the judg¬
ment nisi against the witness in the above case of Dickenson
vs. Kincaid, is erroneous, this is also, because it does not recite
when and before whom the recognizance was" taken, and what
were the conditions of it. As the recognizance already appears
of record, it was deemed sufficient that the "other facts neces¬
sary to a judgment nisi, should appear, that the defendants
were called upon to comply witli the conditions of it, and failed
to do so. The entry is taken from 2 Harris' Modern Entries 296.
The same reasoning however, would apply to the jipdgtnent
against the witness. The subpoena is judicial process,. and
together with the officers return, is a record of the court. It
shows the witnesses obligation to attend. The calling of him,
and his failure to come,showTs his default, and vrhen this is put
on the record, there is full prima facie recqrd evidence of his
liability,—bnt still the common and statute law does not allots
an absolute judgment, but requires him to have notice of these
facts, so that he may come in and show that he really was not
in default.
INDEX.
ABATEMENT—
Plea in, C. & N. 540; M. D. 4; Story PI. 18„ 78
of indictment or presentment, M D 604
and Revivor.. C & N 65-6-7; M D'l; Story PI-26
ACCOUNTS—
book. C & N 131; MD 6
from another oounty or State, C & N 71; M D 7
ACQUITTAL—
plea of, M D 365
ACTION—
forms of, M ® 8, 1 Ch PI 94
local and transitory, C & N 700; M D 11,841
joint and several, M D 11, 631; C & N 416;
N S 225
before cause accrued, M D 9, 808 sec 1465
no form of, before a justice, M D 653
ADMINISTRATION—
and revocation of, M D 20. 25
suits by and against administrators, M D 38-9
against on their bonds, M D 23
settlement of accounts, M D 51
ADMISSION—
by pleading, M D 472,805
ADOPTION—
of child, acts 1851-2, p. 619
AFFIDAVITS—
M. D, 832, 834
pauper oath, to obtain process 4
attachment oath 6
Replevin - 10
for better security 19
for amendment of pleadings and process 24
for change of venue 41
for continuance 43
to petition for Certiorari 107
AFFIRMATION—
of quakers, &e. as jurors, &c. C & N. 505 sec 4 45
as witnesses in civil and criminal cases; C & N
712, sec 32
Page
Sec.
24-5
140
241
29
47
48
82
48
•82
140
241
'9
9-10
■9
y 10
'94
150
115
'197
122
211
124
213
116
199
-38
67
120
205
153
INDEX- Pagb Ss«
AGREED CASE— '
acts 1852, p. 250 31
adjourned to supreme court, C & N 232; M D 160
ALIAS AlfD PLUR1ES—
writs, C & N 108; M D 848; 10 and 11 Hum, 4 15
execution, from court 72
execution from J- IV 99
ALIMONY—
see divorce
AMENDMENTS—
C & N 88; M D 63, 805; acts 1852 p 219, sec 4,6, 23
APPEAL— '
1. from justice of the peace, C. & N, 90, M. D.
69, 655 101
2. in forcible entry and detainer, acts 1850,237,
332-6 100
3. on conviction of slaves 151
bond to be given, form of 101
LP. to transmit the papers "
to issue subpoenas for witnesses 102
stands for trial first term, if taken 5 days before 102
one of severaLdefendants may appeal 105
annuls judgment of justice 104
proceedings on, in circuit court
1 dismission of, for want of jurisdiction, M D 648* 103
2 dismissal for other causes 103
3 defects are all amendable 1852 p. 125 104
4 matters of abatement, 104
5 judgments on non-appearance of the parties, 101-2
6 pl'ff. to giye security and pay costs, when 105
7 revival on death of either party ' 105
8 trial of the appeal 104
9 set-off on trial
10 on affirmance of justicers jud't.', plaintiff en¬
titled to 12£ per cent 105
11 judgment of affirmance " !
12 from county to circuit court, in all cases
M. D. 70 180
transmission^ of papers, 15 days 121
trial in circuit court 122
appeal—
in the nature of a writ of error, M D 76-7 61
from county to circuit court, M D 70 121
97
210
lorn county to supreme courti [121-2(209-10
50
is
119
160
34
168
167
254
168
169
170
170
177
175
172
173
173
174
169
176
178
175
176
179
182
210
158
INDEX.
Pagb. Sac.
from cir. to supr. court. C. &N. 93; M. D. 72-6,461
the judgment of the circuit court must be final. M.
D. 75, 640,656
bond for. C, & N. 95-6; M, D. 72. entry of
may be taken on pauper oath. M. D. 75, 825
transcript of record to be filed by appellant
proceedings in supreme court. M. D. 74-5, 466
on affirmance, 12£ perct. C. & N. 95; M. D. 466
remanding cause to circuit court
opinion to be sent down. C. &N. 234
in criminal cases. M. D. 368
clerk to send a transcript
proceedings in supreme court
reversed, deft, remanded or discharged
on .affirmance, the sentence is executed
ARBITRATION—
M. D. 80; C. & N. 99; acts 1852 p. 249
ARGUMENT—
opening and concluding, see onus proband!
ARRAIGNMENT—
4 Blk. 321
entry of, and plea
ARREST -
of judgment. C. & N. 540; M. D. 636, 837
in criminal cases
only for substantial errors, acts 1852 p 519, sec 4
ASSUMPSIT
action of, M. D. 91; 2 G. Ev. 87; 1 Ch. PI. 98
ATTACHMENT—
1. Original, who and against whom and for what
it lies. M. D. 97; N. & C. 101; 7,10 & 11 Hum.
N. S. 14
2. who issues, justice, judge or clerk. 11 Hum, 542.
1852 p. 256, sec 2; p. 674, sec 11; O. & N. 101
3. affidavit. M. D. 97; 7, 8,10&11 Hum
4. bond. C. & N. 104; M. D. 98
5. the writ. C. &N. 104; M. D. 98
6. Levy on property. M. 3). 99
not on land, if there be personalty. C. & N. 292;
Peck 171
on debts, garnishee. C. &N. 103; M. D. 99
7. replevy of property. N. S. 14, sec 2; M. D. 103
8. proceedings on return of
2. Judical
when it issues. C. & N. 108; M. D. 106, 848; 10
Hum. 264.
%. Ancillary. N. S. 14; 7 Hum. 210,232,465; M. D.
61-2
65
62
• 62
62-3
634
64-7
67
67
144
145
145
145
146
30
50
139
149
60
144
60
3.9
5. 7.
6
6
e
16
16
16
16
19
9Q
99-106
106
106
245
246
246
247
248
15
159
INDEX.
105; 11 Hum. 542
4. In Equity. C. & N. 106; N. S. 11-12-13; M. D.
177; 7 and 8 Hum.
5. jurisdiction of J. P. by, act 1852 p. 619
6. against witness (see witness)
ATTORNEYS—
rule to shew authority. M. D. 107
roll of
BAIL—
M. D. 371
taken by sheriff on capias
BASTARDY—
proceedings in
BILL OF EXCEPTIONS—
M. D. 123, 979
form of .
in criminal cases. M. D. 373
mandamus to judge to sign. 9 Hum. 231
not to bo read on new trial. 11 Hum. 112
BONDS—
office, statutory, common law, voluntary
CAPIAS—
on indictments
to include all defendants. C. &N. 159
CAPTION—
of record. M. D. 860
of indictment. M. D. 602'
CASE—
action on. M. D. 12; 2 G. Ev. 215
lies whenever trespass does. 1850 p. 345
CERTIORARI—
1. when no appeal. M. D. 161 j
proceedings on return of
2. as substitute for appeal. M. D. 162
on bond or pauper oath. 5 Hum. 381
what petition must state
by one of several defendants
form of petition, bond and writ
proceedings on return of
3. instead of audita querela. M. D. 16?>
CHALLENGE—
of jurors, in civil case. C. & N. 422
in criminal cases. M. D. 399-400
CHARGE—
of court. M. D. 349, 645, 775
ia criminal cases. M. D. 646, 401
Page.
Sec.
16
19
89
146
99
164
99
164
20
25
20
27
138
231
138
237
118
204
46-7
79
59
94
144
244
126
218
137
237
138
237
52
89
10
11
a
u
106-7
180-1
108
181
108
182
108-9
185
108-9
182-6
109
188
109-10
188
111-12
189-90
113-14
193-4
45
75
141
242
51
86
51
86
160
INDEX.
COMPROMISE & DISMISSION—
of suit
COMMUTATION—
of capital punishment
CONFESSION—
of judgment, on declaration
on note without suit. C. & N. 419
CONVICTION—r
plea of former. M. D. 874
CONTINUANCE— •
C. & N. 185; M. D. 838
affidavit, and enrry
in criminal case
CORPORATION—
suits by and against
proceeding to restrain and dissolve
COSTS—_
in civil cases. M. D. 385
judgment & execution for. M. D. 337
taxation of
in supreme court
remedy for
against sheriff and clerk
in criminal cases
COUNTERPART—
of original writ issued
to different county. C. & N. 416-17; M. D. 851
of justice's warrant. 1850 p. 296
COURTS—
C. & N. courts, M. D. courts
county, jurisdiction of
circuit, how opened
may make rules of practice. 1852 p. 220, sec 9
equitv jurisdiction of
COVENANT—
action of, 2 G. Ev. 223; 1 Ch. PL 115
CRIMINAL PROCEEDINGS-
DAMAGES—
in writ and dec. M. D. 406; 2 G. Ev. 242
interlocutory judgment for
DEATH—
sentence of
OEDT—
action of, M. D. 413; 2 G. Ev. 286
DECLARATION—
to be filed third day. C. & N. 539
form of, in debt. 2 G. Ev. 286
161
INDEX.
by payee vs maker and indorsqr. C. & N. 416: N. S.
225; M. D. 631
in ejectment. 1852 p. 216
in replevin.
DEFAULT—
judgment by, C. & N. 539; M. D. 83ff
DELIVERY— "
of writ to sheriff. C. & N. o48; M. D. 851 *
bond. C. & N. 129; M. D. 420
DEMURRER—
form, and when agued, M, D. 810; C, &N. 541
special, abolished, 1852 p. 219, sec 5.
judgments on overruling. *M. D.'83R
to indictment. 4 Blk. 334
REPOSITION—
when allowed, C. & N. 243-5-6; M. D. 423; -II
Hum. 89
how taken, lb.—acts 1852 p. 238
by whom, Jb.—1852 p. 165, 674, sec 11
notice. M. D. 424; acts 1847 p. 40; 11 Hum. 84
under pauper jaw. C. & N. 534
clerk may open, N. S. 145.
certificate of commissioner. M D. 425; 11 Hum 84'
reading of. 11 Hum 89; 10 Hum 234, 16; 8 Hum 663.
to perpetuate testimony. 1850 p. 65.
DETINUE— '
action ofr M. D. 432, 409;. 8 Hum. 442
verdict and judgment in, C. & N. 540; 8 Hum. 406.
DEVISAYIT VEL NON—
C. & N. 710; acts 1852 p. 96; D. 14
Legatee may offer the will for probate, 7 Hum 92.
All persons interested have a right to be made -par¬
ties and are all bound, whether parties or not. 7
Hum. 320.. To set aside a probate, there must be-
a petition to the county court, shoeing; 1. That
the petitioner is an heir to the testate. 2. The
facts which show it not to be the Will of deceased.
And the executor must be cited to appear, and will
have a right to answer the petition and contest it.
7 Hum. 406; U Hum. 485,
A appeal lies from the decision of (he county court,
setting aside the probate of a Will. lb.
DIMINUTION OF RECORD—
- suggestion of, M. D. 161
DISCONTINUANCE—
of suit, M.'D. 365; 3 Blk. 296
11
Tagb
See
18
°2
.12
22
• 18
22
29-43
41-73
14
16'
, 70
115
22
31
23
32
22-25
' 31-86
140
241
34
57
34
58
34
58
35-6
52-62
86
68.
37
65.
a
u
u
u
87
64
10
11
54-69
111
31. 56
51.90
32 51
65
15
162
Page Sec.
DISMISSION—
of suit, because writ voidj Story's pleading 24
for insufficient security, C. & N. 659; M. D. 850
by order in vacation
DISTRIBUTION—
of estates, ^. S. 118; M. D. 45-7; act 1850 p. 396
DIVORCE—
causes for. C. & N. 262; N. S. 149; M. D. 433
Proceedings to obtain, lb. 7 & 9 Hum.
Decree and consequences, Jb.
DOCKET— a
appearance, C. & N. 546
Execution, C. &N. 158, act 1831
DOCUMENTARY EVIDENCE—
records, TG. Ev. sec 502-6; M. D. 491-2, 483
Deeds. C. & N. 591; M. D. 489; 2 G. Ev. 295
other writings. M. D. 481, 489, 105^; 1 G. Ev.
576-81, .
"Wills, domestic, C. & N. 707, see 6; 9 Hum. 272
from other States. N. S. 241; 9 Hum. Tl§
DOWER— . , .
C. $ N. 437; N. S. 151; 1850 p 254; 1852 p 11,118
7, 8, 10 & 11 Hum.
EJECTMENT—
how commenced, 1853 p. 216; C. & N. 266
plea and evidence in, M. D. 447; 2 G. Ev. 304
when plaintiff claims under sheriff .
sale or as landlord, M. D. 448-9
ENTRIES—
generally and of caption
of non-suit, and confessed judgment
over-ruling and sustaining demurrer
of forfeiture vs. witness, ('see errors, p. 153-4)
of continuance and change of venue
of affirmance and reversal, in supreme couH
verdicts and jndgments, M. D. 1022
summary judgments,
on appeal from J. P.
indictment filed
Nolli prosequi by State
judgment on recognizance (error)
arraignment and plea
ERROR—
writ of, C. & N. 93; Sec. 12, 95; M. D. 460
coram nobis. M. D. 461
in criminal case
appeal in nature ef
20
26
19
24
132
229
* 00
188
' 87
142
ti
148
' 88
144-5
*13
15
68
108
37
, 66
38
66
u
■ 67
81
.136-
11-12
11
49.
84,
50
84-9.
52
89
21
28. ■ 30
22-3
31
33
54
42-3
71-2
67,
55
89
75-8
105
178
135
138
239
139
140
64
100
79
133
144
245
60
97"
16S
INDEX.
Page i Sec"
EVIDENCE—
how procured, 1 G. Ev. sef. 806
documentary
in action by payee vs. maker, M- D, 48,5, 814
by indorsee vs. maker, 9 Hum. 464
by.indorsee vs. indorser. M. D. 185, 143; 2 G. Ev.
174.-7 - f." 4
EXAMINATION—
of witnesses, 1 G, Ev. 433,445, 467: M. D. -1056
EXAMINING COURT— *
M, D,. 273, sec. $44
EXECUTION— '
from supreme court, N. S. -281 *4
from cir7 court, to issue when demanded, C.&N. 159
hinds, M. D. 50Q; C. & N. 292 < ,
Ca. Sa. abolished, N. S. 176
lien on personalty from teste, M. D. 503; 9 Hum 91,
levy, what, M. D. 516
on personalty first, C. & N. 292; M- D. 505/941
delivery bond to be taken, C. & N. 129; M. T). 420
on 'reality, C. &, N. 292; M. D. 507; 10 Hum. 24,44
equities, and stocks, and choses exempt
bow subjected, C. &N. 222; M. D. 508-9, 515
exemptions for the poor, M. D. 522; aet 1352 p^ 158
principal's property before surety's, N.' S. 277
drawer's before indorser'e, C> & N. 416
Advertisement, of land 40 days, CL & $T. 292
at 4 public places, C. & N. 296
of slaves 20 days, 1850 315 .
in newspaper if def't wishes, lt>.
sale and return, M. D. 5i9--21; 9 Hum. §42, 606
10 Bunf 244
Quashing, M. D. 502
in,case of death, M. D. 500, 503
Jnstice's, •
levied on land, M. D. 511, acts 1852 p. 261
what jnstice issues, M. D. 511, lb.
return of
levy gives priority over court Ex. N. S. 159
issued to another county,
in criminal cases
from coufity court.
EXCEPTIONS—
see, bill of
$XEOTTTORS—
appointment &c.
resignation and settlements. M. D. 51
32-4
53-7
7-8
66-7
47
47
. 81
i •
46
79
*?■
133
* 231
81
, 107
68
> . 108
109
69
■ a
70
114
70
115
K
114
tc
115
71
118
70
114
a
* U
71
116
a
118
a
U
a 1
119
" 1
££
" 1
iC
« 1
u.
80
135
72
120
97
157
U
(C
98
158
a
"159
70
114
98
160
149
2,32
119-81
204-9
113
198
115-16
197-9
> 164
INDEX. , ,„r.„
: suits by and against. M. D. %3, 38-9'
FEI^UES— , # v V ( . '
. proceedings to establish and discontinue:' " #
FiERh FACIAS— -
(See execution) .' f ,
FINES— _ _ v * * ,
on 'submission-.,
defendant in.cilstoay for
FORCIBLE ENTRY AND DETAINERS- *
M. I>. 531; 9 Hum. 407 ' ,
GARNISHMENT— *' . *.
on attachhient, C. & N. 103; M. D. 99; 9 Hum. 1S6-
on execution, Q. & N. 3.62; Mi. D. 1:02.
GRAND'JURY— , ' * * . V' ;
how fleeted, C; &*N; 421; N, S. 191'
oath apd charge- > v .
GUARDIAN— - ,
of infant,* appointment &c. '
may resign, 18'52,p.'194, sec 6.'
may sell End and 'slaves on petition >
of idiots and lunatics.
Peudente lite '
HAND-WRITING— ,
how proved, M. D..481; 1 Gi Ev. 576—81' »
HABERE FACIAS.POSSESSIONEM— •
M. D. 500
HABEAS CORPUS-
HOMESTEAD—
exempt from Ex.-1852 p. 158. 4
IDIOTS AND LUNATICS—M. D. 589
IMPRISONMENT—
for crime
for fine and costs.
INFANTS— < .
suits by and against
land can't be sold on petition by next friend'
INDEMNITY—
bond, M. D. 595; 9 Hum 178; C. & N. 183-4
INDICTMENT— *
M. D. 596; 7, 8, 9, 10, 11 Hum.
ex officio, M. D. 597
INQUIRY OF DAMAGES—
C. & N.. 539-40; M. D. 833-41
INSOLVENT ESTATES—
administration of
ISSUE— #
in jileading, general
Bagb.
Sec.
122-4
211-13
121
' 208
69
113
. 140
146-r7
« V
* *
190,
„ ,166 (
16
71 qyi
18-
17 157
j. }.. yH,
*
111 • JLvi .
*' *
49
70
(C
IB
0
0
e«
86
141
•' 116
'201-2
l&I
■a
.V 214
38
'• 67
\ 69
net
91
' 148
*
71
116
1161
201
1*6^9 240-52
1471; 249
121-5
125
.214
■t u
■
76
' 12T
134
233
234
44
73
117
2Q»
256
38
165
' -• INDEX/'
JUDGMENT— ■ ' , .
M. D. 634, form of
by confession, C. & N.,419,
on demurrer • ♦ . • ■
final or interlocutory, C. &N. 539 .
' lien on land, M. J). 637j C. & N. 419 *
. by default, C. &.N. 639;- M. D. 634, 836, 840 .
arrest of^VM.D. 636, 837 " J '**■'
nontobstante»verd-icto,. M.tD. 820
of justidfe, 8,, 10, 11 Hupa, '
- off-death,'. . ' t %
against principal and bail op forfeited recognizance
JURISDICTION—M. D. 64U-3 ' J
. 'originalarifck.appellate, exclusive and concurrent
of Subject and person ' .
# by waiver of process * » . ' * «- '
see counts and justice ,
JURY— -
how'a^pointed, C. & IjT. 425 ,,• *
qualification of,- G.^c,N,/4'22*^ M. D. 6l4, 399
freeholders on cSangS of venue, C, & N. *422 r
of bystandefs," or talisruen,«C/& N. 421-3; N.'S. 191
grand, C. <$;NJ42l, sec, 12; M. D. 331; ■" "
challenge, for opinion, M. D. 644; 7, 9,10, 11 Hun
for kinship, 0. &M. 238; 11 Hum 232
perOlnptory, M. D. 400; C. 4 N. 422 , 4
oath of traverse, • ( -
presenting case to
judges of lkw in crim. pases, M.'p. 646'; 1 Gr. Ev.
# Sec. 49 , ^ f
in criminal case, M. D. *399 - * ■ ;
separation of, 1|L D. 402; 9 Ilufn 646; 11 Hum 491
province of, M. ,D.*645--6 ''
duty of wben th§y retifrn, * „
JUSTICE t)E THE PEACE— ;!:
hi|. jurisdiction, > 6
1. On,pqtes,&c., acts 1849-'-50 p 533; M. DJ 648;
i0 Huffi 567'
2. unsettled accounts, 1851,-32 p. 52
3. damage3,iM.,p. 650; C. & N 429; act of '29,.431,
act '35 sec -2
4. replevin, act$ 1851-2 p. 38 ^
5. forcible entry,and. detainer. N,. S. 165; :M. D.
531; 1*849 p 304; 9 Hum.
6. by attachment, M. D. 560; N. S. 15; act 1852
p. 256
.7. of small offences
Page.
1 Sec.
1. '
21
2-7
(i
" 30
22
31
■it ■
u
29-43
73
• 60
• 9:5
61
96
96
155
' 148
250
.* 154
102
171
"103
u
u
a
" .. '39
fi: 70'
44-p
v. - i
r 7 5
' 44
, ' 74
*49
■ 70
i 4^
'
75
"7
^141
75. 242*
45
77
51
86
141
242
142-3
243-4
51
86
a
87
11
a
a J
a
lOOj
8.165
i
U 1
" 166
99!
164
133!
231
166
Page I Sec
evidence of his acts. M. H. 483
suit before, by warrant,
no form of action, M. T>. 653
no pleadings, M. D. 653-5 9 .
trial before, C. & N. 428 . * ■-
' parties* may examine each other. 1850 p. 161
may issue summon ?6r witnesses. C. &*"N. 427;
N. S. 194 _ ■. .
may issue commissions to take depositions. C.&.N
245,243 ' \ *
summons'for witness to cir. ct. C. &N.90,sec 54,
fn criminal cases, C. & N. 240 f •
nonsuit before,
judgment. 8 Hum *701; 10 Hum 453; 14 Hum
summary judgments. M. 3). 651; O^& lOHum
Execution, what justice issues, „
no lien. M. D. 659,
out of the county,
.. Scire Eacias by .
^appeal from his judgment; M, B. 655
LEGITIMATION— -
oA-chirdren, , - *' *
LIEl^— ' * t
judgment, C. &N. 419; M. D. 637
of execution, M. D. 503; 9 Hum. 91
LIMITATION—
of actions,
1. personal, G. & N. 439; M. D. 734; 7, 8, 9, 10
and 11 Hum.; ;
2. ejectment. C. & N. 44"2; M._ X). 748, u "
8. of criminal prosecutions. C.'& N. 44-5; N. S.
156, sec 17
LOST INSTRUMENTS— *'
proof of, 1G. Ev sec 558 -V
Suits on, 0. &N. 447; M. D. 758, acts, IJ852 p 10%
MALICIOUS PROSECUTION—
action of, 759; 10 Hum 291; 2 G. Ev. 427 '
MAN HUMUS— " " . '• , 4.*
C. &N. 448; M. H. 761; 7 & 11 Hum.
to judge to sign bill of exceptions, 9 Hum. 231
MISTRIAL,—when
MITTIMUS—N. S. 320
MOTIONS—of attorneys,
for summary judgments. M. H. 975
NAMES—
change of,. 1852"p 619
NEW TRIAL—
37
66
92
149
' 93
150
95
154
u
a
u
iC
Ti -
((
*<(
(I
li02
170
134'
292
•'©6
155
a
«
. 98-9
159-62
98
" 158
99
* 163
98
169
99
161
100
167
109
205
,99
163
70
114
*
42
u
«
151
'
'38
• <<'
68
' 12
11-8
90
147
52
88
133
231
40
70
74
123
119
205
167
*
M. D. 773; 7, 8, 9, 10 k% 11 Hum.* t
only two to be.granted, M. D_ 778;' G. .& N. 500
when to be granted on costs
witnesses to beVesummoned. M. D. 1046'
in criminal case. M. D. 392
NEXT FRIEND—guit by, M. D. 782 ^
NIL DEBET—rpleaof, 1850 p. 59 ®
NOLLIPROSEQUI— - ,
as to one*of several defendants, C. & N. 542
not by attorney general without consent of court
C. & N. 541." ,
NON-SUIT & NON-PROS—M. D. 338, 782
on calling cause for trial
pl'ff. must take, before jury retires. C. & N. 540
setting aside. M, D. 838
NOTE—
form of, Story on notes 15, 57
evidence in action on
NON EST FACTUM—
plea of, C. & 447, 501; M. D. 783
before justice, Pi Hum; 539
NON ASSIGNMENT—M. D. 783
NOT GUILTY—in tresspass and case
to indictment. M. D. 395
NUL TIEL RECORD—M. D. 814
OATH—
how administered, G. & N. 504; M, D. 788; 1 G.
Ev. sec 371
of grand jury. M. D. 383
of traverse jufry
witness -
pauper. C. &N. 533; M. D. 825
jury on appeal from J. P.
witness going before grand jury. M. D. 383
OFFICE BONDS —suits op,
ONUS PROBANDI—
opening and concluding, 1 G. Ev. sec 74—7
OPINIONS— .
of sup.*court filed ;knd sent to cir. ct. C & N 234
OYER— M, D. 815; Story's pleading 49
ORDER—of proceeding, M. D. 838
PARTIES—
to actions. 1 Ch. PI. 2-90; M. D. 816
new, .may be made, acts 1852 p. 219 sec 6
on.joint contract, C. & N. 415-6; M. D. 11, 631
assignee of bond&c. C. & N. 130
may file their own pleas, C. & N. 541
Page
Sec
57
9i
58
9:
a
9:
58 131
93 22'.
143
24,
424
21
26
3.'
44
i s
138
233
20 29
27 46
43
70
52
87
21
29
£>
1
47
80
26
38
47
82
26
38
140
241
44
74"
40
70
45
76
' a
77
4
104
175
135
235.
126
219
46
78
67
106
28
45
8
10
23
l 34
8
10
«
u
18
21-5
on3l defendant not found, alias or nol'pros.
. as to the other, * ' .
compelled ;to tbstify, acts ,f 838 p.,282,.1850_
<Rage 161 " : A V , . ;
PARTITION— ; ,
and sale for, C. & N. 514-16; M. D. 797-8;
. % 8 andlO Hu^l ■ '
,in what courts, acts 1850 p 306
PASSING-4case on docket * * »
PAUPER— -''A - ' •' - 4 . ' *
suits, Q. & N. frhp; M D 825; 9 lium 865
PAYMENT—plea oi* - ' * ' -
part payment entry,
PLEAS—when to-be fiiled, C & N 539' .
dilatory and peremptory, abatement and
-bar, MD 817 • '
general issues, M D 814 .
special pleas
deft may plead several, C>.'& N 540 , .
Aiie to plead aiid try, AID 841 ' #
to indictment, M X) 395,' 604
PRESENTMENT—
. MD 598; 8, 10-and 11 Hum
PROBATE—of Wills, M D 14
summons to produce Will for
PROCEDENDO-—on dismissing certiorari
PROCESS-^ • -
original,, mesne and final, M D -848
see writ, \ **' • . *
PRO CHE IN AMY— see next friend
PROFERT— : •
C <fe N 551; M D 819; Story's pleading 49
PROSECUTION-^ ' •
bond, C & N*^46; M D 849-53 ♦''
remedy again|t sureties, old remedy, M D
583, present r^nedy, is judgment against*
the surety andJthe pl'tf. jointly, whenever
•the pl'ff. is cabfj acts! 847-43 p 94. 'W/hen-
ever the judgm'ent against the surety is
omitted in the Within entries, it should be
supplied. -
PROSECUTOR—Mp 597:11 Hupi 40 \
when taxed with costs * '
QUASHING—execution M D 461, 502
Page j
Sec
44
73
39
69
" 84-5
137-9
a *
' 40
CC
70
• 4
3
27
39
5,3
89
■ 24
35
25
37
(£
38
. ■ ' 27
39
a
41
30
48
140
241
136-7
236
115
198
116
u
; 113
193
5
5
, 124
j 214
18
3
1 21
*
• ® ''v'
'
. ' *
. i
132-4
230-2
133-4
231
80
135
169
Page j ^Sec
proeeeding^ Braught, up By C&rtiorari
indictment, M D 604" * ,
RECOGNIZANCE—to appear, M D397
RECORDS—how proved, 1 G. E\. Sec. 5
MD 491 K
caption of, M D 860
transcript of, C & N»306 - t
diminution of,.M D'161-
transcript in criminal oas.G -W j£b * f
REDEMPTION—of land sokt, C- 564,
D 864; N S 223, acts 1850 p. 316, lfS5|^page
261; 7, 8,9, 10 and 11 Hum. , .
REFERENCE— .■ -
to arbitrators, 1852p 249; C & N 99; MD 80
REPLEADER—M I) 820 .
REPLEVIN—'action of, affidavit, bond and writ
N S 243; 9 and' 10 Hum , .
declaration in,* >
may declare in trover or detinue, 10 Hum 378
general issue in,
judgment and execution, 10 Hurh 171 ■' ,
REPLEVYt—' ,. ,V , ;
of property attached, N S 14; M D 103
REPLICATION'rr-to. plea?. |VU '
several allowed to plea of set-off '
RESPONDEAT OUSTER—MDA
REVERSAL—-judgment of supreme court
in criminal caset • * *
REVIVOR—. , , ... -
of suits, o.p death or marriage, C & N
MD i; * " " * • . ' -
RETURN—of writs, see 'writ and execution >'
ROADS— ■ ^ *• ■ I"
RULE— ' ' ' /
putting witnesses under, 1 G 'Ev. sec 432
" MD 1056 * . u . /'
SALE—on petition to pay debts, 1850.p 396
of. slavey By. hdm. or , Ehpr. " "
by guardian, M D 571 " "
see partition ' " ,
SCIRE .FAOIAS-r .Vy -■ •
by sheriff on, plaiirti^s judvt 1848 p 323
by and'Mg,aihst', admr'U and execute!* on
judgment W. deceased . i
108
181 1
140
' 241 '
133
232 ►
66 .
' 50
89
it t 62
98
' ■; 65
103
^143
2^6
73
121
30
49
60-1.
95-6
10-11
11
• 48
22
19
a
26
' 38
54 69
-112
16
f 20
40
It
90
/25
36
64
99
K 145
247
29
47
120
207
46
77
86
140
a
141
LL
u
77
128
72
120
170
Page |
Sec
33 131154 228
139}
239
99}
161
- 1361
235
1 3}
2
19}
f
24
1
77[
i
129
t
. 71j
118
105?
176
1461
249
. 148!
)
250
!
£8!
44
55-61
90
114!
i
195
1
5!
5
i
*
„ . . *
against witness", 11 Hum.' 72 • v .
vs. bail,.M D„ 397., (see errorsp, 153-4^
v ■ \
f^j^§^%e.sm|j.state 'case' . *
SEC^KW^^-fpr costs, in pros, bond, C & N 546
pl'ff. ruled to M||er, G & N 657
to be gi^en ornrarotions, C & $ 190,
mot^u f&r principal. & co-surety,
prope^t^^otliab^^til principal's exhaust¬
ed, N S"27ft- 8;Hitm 26
pl'ff. to give on appeal from J P.
for fine' an'd costs - .
SENTENCE—of-death,
SET-OFF— . \
C & N 662; M D 931; 1852 p 426; 8 Hum,
verdict and judgment for
of judgments
SHERIFF— *
to execute process from court, C & N 664
to deliver unexecuted process to his succes¬
sor, M D 940
and deputy may execute J. P. process, M. |
D 940 ' . ; |
duty as tareturn of process, MD 943-5 14 72jl7 119
judgments, for not returning execution &c |
M D 940; 9 Hum 542, 606, ' ^ 74j 124
SLAVES-^trial of for crimes 150;
SLANDER— ' '
action of, C & N 139; M D 727, 951 ' 12} 11-7
pleas and evidence in, 2 G Ev.387; 10 and , j
11 Hum , . |
STAY--of execution, C & N 685, N S 278; M. i
D j)52; 9, lband 11 Hum 96! 156
SUBMISSION-^-on arraignment, for crime I40| 240
judgment 02i; / ■ . 146j 249
SUBPENA—dudes tecum, 1 G Ev. s.ec 30,0 b3j2| 53
SUIT—in one's name for use of another 127| 220
see action j
SUMMARY—proceedings, M D 975-7 - 74| 123
form of judgment vs. sh'ff, M D 978,945-6 751 ' •"
by sureties & endorsers, M D 9%8; 9 Hum I
592, 1850 p 112, 351; N S 2"79 77 j 129
co-sureties vs. each other, M D 901, 1850 |
P-352 . 78j 430
Page ] SEC
against deputy sheriff or clerk, C & N 670;
M D 039*
by sheriff on indemnity bond, M D. 595;
9 Hum 178
before J. P. M D 651; 9 and 10 Hum
defendants remedy against, M D 461
SUPERSEDEAS— m
on writ of error, M D 461, ^80
on. certiorari I
TALISMEN—jurors, C &; N 421-3
TESTE—-of writs, C & N 56, se<^ 12; M ,1) 049<
epp PYPP7ifmn * v
TORT—actions of, 1 ChPl 124, M H1005
TRANSCRIPT—of record, C&N306
TRESSPAS—action of; M D 1007; 2 G Ev 572:
on the case, substituted for, 1850 p 345
TRIAL—term after issue joined, M D84I
preparation for
trial term, proceedings at
by court of nul tiel record
by jury, . \ .
without a plea; M D >|009
submitting case to.jury~ »
of criminal case, M'D app;.,
of appeal from J. P. '
TRQYER—action of, .2 G
1852 p 218, sec 3.
TRUSTEES—appointment of, &c
of funds for charitable uses proceedings a *
gainst ;
UNLITIGATED—cases, how disposed of,
VENDITIONI gXPONAS—M D 1020
by justice of peace
VENIRE FACIAS—M D 403
VENUE—of actions, C &N 700
when defendants reside in different coun¬
ties, C& N416
Change of in civil cases, C &: N- 701; N S
307; 1850 p 284; M D 1021
in criminal cases, M D 404 f
VERDICT—in civil case, M D1022; C & N 702
special and on faulty count, C & N540
responds to the issue, 1852 p 219 sec 7,
in criminal cases, M D 403
76!
E M
1009;
126
127
98-9159-62
79]
110J
441
13!
134
133
74
' 13
9!
11
• 621
98
9|
11
10]
u
30j
' 48
32|
52
,39|
70
44-|
74,
" 1
I
45)
77
141-2]
242-3
104f
i
175
■12]
16^-6
126]
218
"■ 1
216
40]
70
72]
119
97(
157
39]
8j
70
9
1
8(
i
' 9
I
411
71
141]
241
51]
87
52|
87
55]
89
1.47-8]
250
J272
ilPAGE
WARRAMT—leading process ofJ.PMD653
security for costs on issuing, 1852 p 428v
noJy|b be signed 'til filled up, C & N 433
directed ro private person, C. & N. 179;'"
f " 9 Hum its j
Vj^eturn of, N S 192 t
counterpart to ^PHther county, I850r p 296
no form of action, M D 653; 9 Hum 746
should show the afoodffft claimed (
date and signature '
, service anR return of, M D 653
state's warrant, M I) 404,
WILES —see probate, devisavit vel non and
t3oC. 6fVldGUC6
WITIVESSES —how attendance procured, C.
& N 711; MD 1046
how long to attend, C & N 7II; M D 1046
forfeiture for non-attendance, C & N 711;
M D 1046, (error)
attachment against, I G Ev". sec 319, C. &.
■ > ■ N 185
•committed for refusing to answer, C •& N 712
liable to actioji for d amag^ C & N 7ll sec 29
put under rule, I»^jEv.;^^32;'M D 1056
* examination of, * " >M$&33, 445,467; M
1 j).1056 «:■
fees' «
to be resummoned on new trial
to be recognized to appear in crim. cases.
WRIT—original,
Summons, C & N 383, sec 2. 384 sec 4;
MD847, . .
style of, C'&N 56, sec 12
address to sheriff, " 667 ch. $9
to coroner s " 186
constable L " 181
issuance is commencement of .suit, M D 851
delivery to sheriff and his indorsement, C
& N 546
service or execution d!F, C & N 664-5
executed 5 dayls before court, N S 232.
on Sunday wfen, C & N 665,' 547
persoi^€xen\pttfrom service, (error) M D 645
return ed, to fir^t day ofterm, M D 547, 8^2
921
94
132-4
32
3;
34
46
130
131
134
Sec
149
14
653
u
17
173 :
* Pa€E | S3o
by and against^xecutor and administrator 123j 212
by and agaiijst infants 124j 214
return amendable before motion, 6 Hum 9$ ! *, *
WRIT OP ERROR—C &^\T 03-5; M D 460-1 61-4|97^L0(f
judgment below must be#nal, " 65J % 10.1*
in criminal cases, * { ;
coram nobis, M I) 461, 981, 5d2l %< '' 79
see errorand appeal* ;