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 4 
 
 SnUred according to act of Gongreat, in the year of our Lord 1866, 
 
 BT A. CARUTHEBS, 
 
 In the Clerk') Office of the Middle Siitrict of Tennouee. 
 
PREFACE. 
 
 This little book is intended for the students in the Law School 
 of the Cumberland University. The Moot Court System adopt- 
 ed in the School, requires them to commence suits and prose- 
 icute them through aU their processes. For this purpose they 
 ineed such a manual as this. There is enough of it to serve as 
 la general directory ; a large work would confound them by its 
 ietails. The defects involved in its brevity, may be remedied 
 by explanations in the course of their recitations and Moot 
 Dourt exercises. 
 
 , Authorities are not referred to in the text of the first part of 
 the work, because references would rather embarrass than en- 
 Eghten the beginner. An index is so prepared, as to furnish 
 the student ample references. The Statutes and Meigs' Digest 
 are referred to under every head, and the subsequent volumes of 
 Humphreys' Keports, and Swan and Sneed, and other text books, 
 where it was deemed necessary. The student thus has the dou- 
 ble advantage of being unembarrassed.by reference to 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 au- 
 thorities are embodied in the text. 
 
 Those who do not expect to practice law in Tennessee, will 
 still find incalculable advantage in the 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 fami- 
 liarize themselves with the law of practice in other States. The 
 prominent features in the history of a lawsuit, must be essen- 
 tially the same, in all the American courts, however great may 
 be the diversity in details. 
 
 As the work may be deemed usefdl to them, by young attor- 
 
neys, a few copies have been published, beyond what it is sup- 
 posed will be necessary to supply the demands of the school. 
 
 ABBBEVIATIOIT. 
 
 M. D. Meigs' Digest. 
 
 C. & N. Caruthers & Nicholson. 
 
 N. S. Nicholson's Supplement. 
 
 Tenn. Tennessee Eeports. 
 
 M. & Y. Martin & Yerger's Eeports. 
 
 Yer. Yerger's Eeports. 
 
 Hum. HumphrCTs' Eeports. 
 
 Ch. PI. Chitty's Pleading. 
 
 G. Ev. Greenleaf' s Evidence, 
 
HISTOKY OF A LAW SUIT 
 
 m THE 
 
 CIRCUIT COUET OF TENNESSEE. 
 
 [addeessed to a law student.] 
 
 Sec. 1, When you are employed to bring a suit, the first 
 thing you have to consider is, in 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 collect 
 the following note : 
 
 Lebanon, Jan. 1, 1850. 
 
 TwelTe months after date I promise to pay James Hart, or 
 order, one thousand dollars. 
 
 JOHN SMITH. 
 
 You must commence your action in the Circuit Court; that 
 being the only tribunal that has jurisdiction of the case. In 
 regard to the form of action, you may bring either debt or as- 
 sumpsit. 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 aU contracts written or 
 verbal, which are not under seal. Let us decide that you will 
 bring debt on this note. 
 
 Sec 2. What is tTie first step you Tiave to take ? You must 
 first go to the Clerk of the Circuit Court, and give a prosecu- 
 tion bond; which wiU 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, shall pay aU such costs and damages as 
 
may be awarded against him by the court having cognizance 
 thereof. 'Witness our hands and seals this 1st day of April, 
 1851. 
 
 JAMES HAKT, [seal.] 
 JACOB JONES, [seal.]" 
 
 It is not deemed necessary that Hart, the plaintiff, 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. By the 
 costs of the suit, is meant the fees of the witnesses and officers 
 who may have to perform services for the parties in the pro- 
 gress of the suit. These have to be paid by the party who 
 loses it. As the plaintiff commences the action and thereby 
 readers it necessary that these costs should be incurred, it is 
 ra-oper that he should give good security that they will be paid 
 if he loses it. The bond is made payable tp the defendant, 
 but is really intended for the benefit of the officers and witness- 
 es 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 ex- 
 penses of the suit, and nobody is willing to go security for him. 
 In this case the law allows him to take t]i& pauper oath instead 
 of giving a prosecution bond, except in actions of slander, ma- 
 licious 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 am 
 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. 
 
 JAMES HAKT." 
 
 Sworn to before me, April 1, 1851. 
 W. Habt, Clerk, W. Co. C. 
 
 When a man gives security for the costs, he has 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 Clerk is now 
 bound to give you a writ. The issuance of the writ is really 
 
the FIK3T STEP in a law suit ; it is the commencement of the ac- 
 tion, the giving of security being merely a preliminary condi- 
 tion. The writ is in the following form ; 
 
 THE STATE OF TENNESSEE. 
 To the Sheriff of Wilson County. 
 
 Summon Johh 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 
 plea, 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 In- 
 dependence of the U. S. the 75th. 
 
 W. HAET, Clerk. 
 
 Sec. 5. Before we go any farther, 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 SherifiF. The 
 style of this writ therefore must be the style of all process, 
 " The State of Tennessee." 
 
 There are three kinds of process : 
 
 1. OHginal or leading process, which is that by which a 
 suit is commenced or originate^. 
 
 2. Mesne process, which is all that issues between the begin- 
 ning and the end of the suit, such as subpoBnas for witnesses. 
 
 3. Final 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 oi the writ, " To the Sheriifof 
 Wilson county." He is the only officer who can execute pro- 
 cess 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 ren- 
 dered 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. 6. The Writ of attachment is original process which 
 commands the Sheriff to seize the defendant's property, so as to 
 
8 
 
 compel him to appear and answer the plaintiff's action. It 
 can only be had in the following cases : 1. Where the defend- 
 ant is not an inhabitant of the State. 2. Where he is remov- 
 ing himself out of the State. 3. Where he is about to remove 
 out of the State. 4. Where he is removing his property out 
 of the State. 6. Where he is about to remove his property 
 out of the State. 6. Where he is removing himself out of the 
 county privately. 7. Where he has removed out of the county 
 privately. 8. Where he so absconds or conceals himself that 
 process cannot be served on him personally. 9. Where he is 
 concealing his property. 
 
 S^c, 7. K the defendant is in either of these categories, you 
 may go before a Justice of the Peace, or the Clerk, [Act 1852, 
 ch. 365, sec. 11,] or the Judge of the Circuit Court, and make 
 oath to the fact, and also that he is indebted to you the amount 
 you claim, thus : 
 
 "STATE OF TENNESSEE, Wilson County, April 1, 1851. 
 
 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 HAKT. 
 
 Sworn to and subscribed before me, 
 Leeot Cage, J. P. 
 
 You next have to give a prosecution bond as foUows : " We, 
 James Hart and Jacob Jones, acknowledge ourselves mdebted 
 to John Smith in the sum of two thousand dollars ; to be 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 Smith, returnable to the Circuit Court of Wilson 
 county, to be held at the court house in Lebanon on the 1st 
 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 HAET, [seal." 
 
 JACOB JONES, [seal.]" 
 
 On this aflSdavit and bond being given, the Judge, Justice or 
 Clerk 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 commanded to attach the es- 
 tate of the said John Smith, or so much thereof repleviable on 
 eecurity as shall he of value sufficient to satisfy said debt and 
 costs ; and such estate, so attached in your hands to secure, or 
 BO to provide, that the same may be liable to further proceed- 
 ings to be had thereupon at the Circuit Court of Wilson county, 
 to be held at the court house in Lebanon, on the 1st Monday 
 in June next, so as to compel the said John Smith to appear 
 and answer the above complaint of James Hart ; when and 
 where you shall make known to said court how you shaU have 
 executed this writ. Witness, Leroy Cage, Justice of the Peace, 
 this 1st day of April, 1851. 
 
 LEROY CAGE, J. P. [seal.] 
 
 You vsdll 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 amount of his debt. If, therefore, it 
 is a claim for damages for some wrong done, as for slander, as- 
 sault and battery, or a trespass on his property, \e cannot sue 
 by this writ, but must rely upon the summons. By an act of 
 1856, a cr^itor, whose debt is not due, may have an attach- 
 ment in all the above cases, except against a non-resident debt- 
 or. But he cannot of course proceed to judgment until his debt 
 becomes due. 
 
 Sec. 8. i. In our analysis of the Writ of Summons, the 
 fourth part is the court in which the party is to appear. In our 
 judicial system we have five courts. 
 
 1. The Circuit Court, which is the court of most extensive 
 jurisdiction, as it has cognizance of all cases, which are not 
 specially assigned to some other tribunal. 
 
 2. The Justices Court, which has a pretty extensive jurisdic- 
 diction, which may be classed under the following heads: 
 1. Of all sums not exceeding five hundred dollars "on all 
 notes of hand indiscriminately, whether calling for dollars and 
 cents, or an amount to be discharged by other means than mo- 
 ney, or an amount of any article or multiplicity of articles 
 whatsoever." 2. Of all' sums not exceeding two hundred and 
 fifty dollars, " upon aU book accounts, , obligations, contracts 
 or any other evidences of debt." 3. Of JDamages for any 
 trespass or tort, except slander, where the amount claimed 
 does not exceed fifty dollars. 4. Actions of Replevin, which 
 go, not for damages, but for the specific property, where the 
 value of it does not exceed fifty dollars. 6. Proceedings of 
 Forcible Entry and Detainer, to recover the possession of 
 land forcibly taken or withheld from the plaintiff. 
 
 3. The County Court, which lays off and superintends roads, 
 
10 
 
 appoints adminiBtrators and guardians, and qualifies executors, 
 and superintends the administration of depeased persons' es- 
 tates, appoints jurors to the Circuit Ooutt, takes care of the 
 poor, may allot widows their dower, and make partition of de- 
 cedent's estates, and many other miscellaneous matters. So 
 much of its jurisdiction is of a purely Executive character, that 
 it may be doubted whether this tribunal belongs to the Judicial 
 or Executive Department of the Government. 
 
 4. The Chancery Court, which has jurisdiction of aU mat- 
 ters of equity and good conscience. 
 
 5. The Supreme Court, which has jurisdiction of al appeals 
 from the Circuit and Chancery Courts. 
 
 Sec. 9. As to jurisdiotion. The jurisdiction, of all tribu- 
 nals is either j)riginal or appellate. Original jurisdiction is 
 the right to take cognizance of a case in the first instance. 
 When a suit may be commenced or originated in a court, that 
 court has original jurisdiction of it. Appellate jurisdiction is 
 the right of any tribunal to take cognizance of a case which has 
 been commeijced before another tribunal, whether it be trans- 
 ferred from the latter to the former by appeal, writ of error, 
 certiorari, or other process. The jurisdiction of Justices, ia 
 altogether original, and the Circuit Court has appellate jurisdic- 
 tion 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, and 
 no other can, it has exclusive jurisdiction of that case. But 
 when difierent tribunals may take cognizance of the same case, 
 then they have concurrent jurisdiction of it. For example, 
 the Circuit Court cannot take original jurisdiction of an action 
 of debt on a note under one hundred dollars ; Justices, there- 
 fore, have exclusive original jurisdiction of such cases. But 
 on notes for any sum between one and five hundred dollars, you 
 may sue either before a Justice, or in the Circuit Court ; they, 
 therefore, have concurrent original jurisdiction of such cases. 
 For any sum under fifty dollars a Justice has exclusive original 
 jurisdiction ; Meigs' Digest, 643. But in all these cases the 
 Circuit Court has exclusive appellate jurisdiction. 
 
 To make the judgment of a court valid, it must not only 
 have jurisdiction of the subj ect, \mt &\bo oi thQ person. The 
 law defines the subjects of which a tribunal shall have juris- 
 diction. In our court system, the Circuit Court has jurisdic- 
 tion of "all cases (or subjects,) where the jurisdiction is not 
 conferred upon another tribunal." It is, therefore, the court of 
 general jurisdiction, and all others are courts of special limited 
 jurisdiction. C. & N., 210, Sec. 7. 
 
 It is the service of process on a defendant, or what the law 
 
11 
 
 deems equivalent to it, that gives any court jurisdiction of his 
 person. "We have seen that an attachment of his property, or 
 his failure to perform certain duties, as the failure of an officer 
 to return an execution, will in many cases give the court juris- 
 diction of his person. But except in these cases, which are 
 specified in our Statutes, process must be served on the defend- 
 ant, else the court has no jurisdiction of his person, and can 
 render no judgment against him, unless he voluntarily appears 
 before the court, and waives the want of service of process. 
 And it is always considered a waiver of it, if he plead a pe- 
 remptory plea, or goes to trial before a Justice on the merits 
 of the case. But although he may thus, by consent, give the 
 tribunal jurisdiction of his person, he cannot give it jurisdic- 
 tion 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 and agree that the Justice should render judgment 
 against him for damages, or for. $600, the judgment would, 
 nevertheless, be void. 1 Hum., 332. 
 
 Sec. 10. 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 where 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. When the plaintiff and defendant both reside in the same 
 county, the suit must be brought in that county. Acts of 1849, 
 page 181. 
 
 2. 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 re- 
 sides. 
 
 3. Where a joint action is brought against the endorser 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 endorser lives in another county, the counterpart muSt be 
 issued to that county, 1827, 0. & N., 417. K, however, you 
 can find them both in the same county, you may sue them there, 
 whether it be the residence of either or not. 
 
 3. 11. 6. The ZToifse, "at the court house in Lebanon. 
 
12 
 
 The court must always be held in the court house, unless it is 
 impracticable, and then the court may adjourn to any other 
 house in the town. 
 
 7. "To answer." It is a summons to answer, technically 
 called, a suipcena ad respondendum, as a summons for a wit- 
 ness is called a suipcena ad testificandum, to testify or give 
 evidence. 
 
 8. I%e Parties. These are plaintiff and defendant. He 
 who complaina is called the plaintiff; and he of whom he com- 
 plains is the defendant. Some times there are two or more 
 plaintiffs and defendants. K 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 siiing 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 person, 
 the assignee may sue the maker in his own name. But if A 
 has bought an open account of B which he has against 0, 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. 
 K the creditor dies, his administrator or executor must sue ; so 
 if the debtor dies his administrator or executor must be made 
 defendant. 
 
 9. The Action. The defendant is summoned "to answer 
 James Hart of 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 action of debt. Plea in the old law lan- 
 guage means action : to answer him of a plea of debt, is to 
 answer him of an «ci^o?^ 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. 12. All our actions 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, cov- 
 enant and assumjpsit. 
 
 1. Deht 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 insert- 
 ed in the writ after the word plea are " covenant broken." 
 
13 
 
 3. Assumpsit lies to recover damages for the breach of a 
 simple contract. A contract under seal is called a specialty or 
 speoial contract ; a contract not under seal whether verbal or in 
 writing is called a simple contract. Your note is a simple con- 
 tract called a promissory note; if it were under seal, it would 
 be a speciality, or bill single, or writing obligatory. If a sim- 
 ple 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 stipulat- 
 ed, and yoii must bring assumpsit. Just so with 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_pZea!, "of trespass on the case." 
 
 Seo. 13. Actions of tort. These are trespass, trespass on 
 the case, detinue, teplevin and ejectment. 
 
 1. Trespass, \\e& for any injury to the person or property 
 committed Vith force ; it is caUed trespass vi et armis, with 
 force and arms. After the word plea in the writ, simply in- 
 sert the word " trespass." 
 
 2. Trespass on the case, lies for all injuries or wrongs or 
 torts not committed forcibly, but resulting from some improper 
 act. If a man cuts a tree down across my fence, this is an in- 
 jury by direct force, and trespass is the proper action. K I 
 stumble over the tree at night and injure myself, or if my horse 
 runs over it and breaks his neck, case is the remedy ; this be- 
 ing a consequence and not the direct result of the wrong done; 
 Insert the word "trespass on the case" after "plea," and you 
 have this form of action. You will observe that 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 on the case 
 in tort. 
 
 The distinction between trespass and case is of very little 
 consequence now, as it is provided by a late statute that case 
 may be brought in any case where trespass would Ue. So that 
 it is always safest where there is any sort of doubf whether 
 trespass will He, to bring trespass on the case. 
 
 3. Detinue lies in any case where the defendant has got pos- 
 session of the plaintiff's personal property either lawfully or 
 
 . unlawfully, and wrongfiilly detains it from him ; 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 plea, are these, " that he render to the said James Hart 
 certain*goods and chattels of the value of five hundred dollars 
 which he unjustly detains from him." 
 
 4. B'epUvin lies in the same cases in whcih detinue lies. 
 
14 
 
 The difference is, that in detinue the defendant retains the pos- 
 Bession until the suit is ended, and then, if the plaintiff suc- 
 ceeds, he recovers the possession \yy final process ; whereas 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 succeeds, regains it by final process ; wherever the 
 law gives an extraordinary remedy, it requires the plaintiff to 
 Bwear to his right ; when it dispenses -with prosecution bail in 
 behalf of a pauper, it requires of him an affidavit of his right ; 
 when it gives an attachment to the creditor it requires him to 
 Bwear 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 following 
 form of affidavit is conceived to be appropriate to every case, 
 whether of unlawftd taking or of wro ngfi illy detainer merely. 
 
 Affidavit. "State of Tennessee, "Wilson County, James 
 Hart makes oath, according to the best of his information and 
 belief; that 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 stiU detained 
 from him unlawfully and against his will, by one John Smith. 
 
 JAMES HAET. 
 
 Sworn to and subscribed, April 1, 1851. 
 
 W. Hajst, Clerk, W. .C. C." 
 
 Beplevin hand. The plaintiff must next give a replevin 
 bond, which also answers for a prosecution bond. It is to be 
 taken in double the value of the property, and be conditioned to 
 perform the judgment of the Court in the case. The following 
 form will answer : 
 
 "We, James Hart and Jacob Jones acknowledge ourselves 
 indebted to John Smith in the sum of two thousand dollars, to 
 be void if the said James Hart shall abide by and perform the 
 judgment of the Court, in an 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 hands and seals this Ist day of Apiil 1851. " 
 
 JAIICES HAET, [seal.] 
 JACOB JONES, [sEAi.] 
 
 Writ. Next follows the writ, which is the same as the sum- 
 mons set out in section 4, to the words " to answer James Hart " 
 then proceed "wherefore he detains his goods and chattels, to 
 wit: a certain iron grey horse about six yeajs old and. sixteen 
 hands high, to his damage one thousand dollars ; and do you 
 also take said horse from the possession of the said JohnlSmith 
 and deliver him to the said James Hart or his order. " The bal- 
 ance of the writ is the same as the other. 
 
15' '"-■ 
 
 5. EjeGtment. This action lies to recover the po'ssession of 
 land on the ground of title. In the action of forcible entry 
 and detainer, which may be commenced in the Circuit Court 
 as well as before a Justice, the question of title is not involved ; 
 the only, question being was the defendant in possession, and 
 was he forcibly and unlawfully turned out or kept out by the, de- 
 fendant. In the action of ejectment the questions are, has the 
 plaintiff the title to the laad ; 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 years, 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 aUedgeS; in the declaration that he enter- 
 ed on the land, and the nominal defendant, called the casual 
 ejector, entered upon and ousted him. The real defendant re- 
 ceives notice of the suit, and comes in, and is admitted defen* 
 dant. These fictions however are abolished by the act passed 
 21st February, 1852, to take effect on the Istday of September, 
 1852. I will merely give you the fprm of the declaration 
 which wiU be used under that act. 
 
 " State of Tennessee, ¥ Circuit Court, 
 
 Wilson county. \ December Term, 1850. 
 
 James Hart complains of John Smith, who is in Court 
 by supimons 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 lying in said county, m District No. 1. 
 and bounded as follows : Beginning at a beech on the bank of 
 Spring Creek ; running North 320 poles to a walnut ; thence 
 East ,i^20 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 Johh Smith afterwaids, to wit ; 
 on the day and year aforesaid, entered into said pMniises and 
 ^ected him, and still unlawfully withholds the possession 
 thereof from the plaintiff, to his damage $100, and therefore he 
 sues. 
 
 WM. BLACKSTONE, Attorney for plaintiff P 
 
 K the plaintiff claims only a life estate, or an estate for years, 
 you must state that tact instead of the words seized in fee. 
 Having filed this declaration with the Clerk, and given the usual 
 • prosecution bond, you are entitled to the wi'it of^ejectmtot, stat- 
 ing the form of action ailer the word^Zea, thus, "wherefore he 
 broke and entered his closeiand ejected him. " 
 
le 
 
 6. Trover. This is an action on the case to recover damages 
 for the unlawftil 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 in 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 
 maliciously and without any probable cause prosecuting the 
 plaintiff. 
 
 Seo. 14. Damages. The next part of the writ, which always 
 foUows the statement of the form of action, is the statement of 
 the damages sustained by the plaintiff for the injury complain- 
 ed of, "to his damage one hundred dollars." Some damage 
 is always supposed to result from a tort or breach of contract. 
 The injury Hart complains of in regard to this note is, the de- 
 tention of the debt; the damage is the interest -from the time it 
 was due. The plaintiff may recover less debt and less damage 
 than he lays in his writ, but not more. It is only important 
 therefore that he state them high enough. 
 
 Sec. 15. Teste and signature, "witness W. Hart Clerk 
 of said Court at ofi&ce 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 action 
 and the dates. All writs are dated on the 1st day of the pre- 
 ceding term of the Court. 
 
 Seo. 16. Issuance 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^dorsement therefore is necessary to show when it 
 actually difr^ssue. The day of its issuance is the commence- 
 ment of the suit, and it is important in many respects that it 
 shpuld be known. The endorsement is simply in the follow- 
 ing words "issued 1st April 1851, W. Hart, Clerk." It is un- 
 lawful 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 prop erty out of the jurisdiction of the 
 Court on Sunday. In that case the Clerk mus t 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 
 
17 
 
 issued that long before the next term, it must be made returna- 
 ble 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 be- 
 fore the commencement of the term to which it is returnable. 
 
 Sec. 17. Docket. When the clerk issues a writ, he must 
 enter it on a book kept for the purpose, showing the names, 
 abodes of the parties, and the plaintiff 's prosecution bail, (the 
 form of action and the plaintiff's Attorney, if obtained by his 
 Attorney,) and when the writ issued. This constitutes his «j)- 
 pearance docket, and it should be laid off into columns thus : 
 
 Attorneys. | Parties. 
 
 When Issued. | Security. | Return. | Remarks. - 
 
 Wilson Co. 
 
 debt. 
 Wilson Co. 
 
 April 1, '50 I Jacob Jones ( Executed 
 Wilson Co. 
 
 Blaclistone I James Hart' 
 I John Smith 
 
 The column for the Sheriffs return cannot of course be- 
 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-. 
 
 Seo. 18. 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 it the day on 
 which he receives it, thus, "came to hand 2d April, 1851, W". 
 Scott, Sheriff." He must then proceed to obey its command, 
 by using all necessary diligence to find the defendant, and sum- 
 mon him to appear. It will not do to send him word, or give 
 him written notice ; he must see him, aftid for that purpose he 
 must go to his residence, if he lives in the county, unless he 
 finds him elsewhere. He must execute it five days before the 
 return term. He cannot execute it on Sunday, except when is- 
 sued on Sunday on plaintiffs oath and so endorsed by' the 
 Clerk ; nor a person attending on, going 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 bod- 
 ies, going to or returning from them. 
 
 Sec. 19. 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 t&rm of the writ, it is also 
 called the appearance t&rm, because the defendant, if summoned 
 . is bound to appear then. The return of the writ not only con- 
 sists in bringing it back to the office of the clerk from which it 
 emanated, but also in the Sheriff's endorsement on it, showing 
 2 
 
18 
 
 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. K he does not 
 bring the writ back at all, or if he simply brings it into 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 has actually 
 summoned the defendant, he endorses the writ thus, " Executed 
 the 3rd of April, 1851, W. Scott, Sheriff." If it is a writ of 
 ejectment, it is the Sherifl's duty, not only to summon the de- 
 , fendant, but to serve a copy of the declaration on him, that is, 
 ' to leave a copy with him. In that case he should return, "sum- 
 moned the defendant, and delivered him a copy of the decla- 
 ration, 3rd April, 1851, W. Scott, Sheriff." If it is a writ 
 of replevin, he should return, "the defendant summoned, and 
 the horse taken and delivered to plaintiff, 3rd April, 1851, 
 W. Scott, Sheriff. Any eg^uivalent words would of course do 
 in all these cases. 
 
 Sec. 20. JVon est inventus, alias and judicial attachment. 
 If the Sheriff has not been able to find the defendant, so as to 
 serve the process on him, his return is "the defendant is not 
 to be found in my county." This return is technically called 
 non est inventus, and when it is made, you have to determine 
 whether you will abandon or prosecute your suit. If you de- 
 cide to prosecute it, you have your choice of two processes, 
 either an alias sumrrbqns^ or a judicial attachment. The alias 
 summons runs thus, after the address to the Sheriff, " You are 
 hereby commanded, a^ heretofore you have heen, to summon 
 John Smith," &c., as the original. K the alias is returned 
 non est inventus, you may then have &pluries, the language of 
 the writ being " you are commanded, as often heretofore you 
 have been," &c. If the pluries is returned not found, you 
 may have an alias pluries, and so go on until the defendant is 
 found, or until you choose to abandon the effort, or perhaps un- 
 til the court may consider you trifling with its process, and stop 
 you. Each of these alias , and pluries writs must be testeoLs>i 
 the term to which its predecessor was returned. K a term is 
 suffered to elapse, the suit is discontinued, and your only alter- 
 native is to commence anew. 
 
 Instead, however, of taking an alias on the return of non est 
 inventus, you are entitled to a judiciql attachment, which dif- 
 fers from the original attachment mentioned in sections 6 and 7. 
 That we remember could only be obtained by a creditor against 
 a debtor ; this issues in behalf of any plaintiff although he may 
 be suing for a tort. That was obtained on the creditor's affii- 
 
19 
 
 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 ; this issues without any other security than what is al;- 
 ready given in the prosecution bond. This sort of attachment 
 cannot issue however in any county except where the defend- 
 ant resides ; the Sheriff's return of tion est inventus always 
 implies, that the defendant resides in his county, and he has 
 been at his residence to iind 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 
 summons issued from the Circuit Court of Wilson county, on 
 the 1st day of April, 1861, commanding the Sheriff of Wilson 
 county, to summon John Smith to appear," &c., repeating the 
 words of the writ, and proceeding thus, " which was delivered 
 to the Sheriff on the 2d day of April, 1851, and was returned 
 by him to the present term of the said court, endorsed, " the 
 defendant is not to be found in my county, W. Scott, 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 the defendant's 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 return it le- 
 vied 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, ancl 
 then say, "which not being sufficient, levied on a tract of land," 
 &c., (describing it.) 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 ser- 
 vice of the attachment. 
 
 Sec. 21. Ancillary Attachment. Eveji 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 attach: 
 ment, on affidavit and bond ; but it 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 de- 
 
20 
 
 fendaiit to appear and answer the suit. Tliis, however, is to 
 secure the debt; it is anoilla/ry to, or in aid of the personal, 
 process which has already issued, or which you are about to 
 issue, to secure his appearance. 
 
 Seo. 22. Replevy. K the Sheriff seizes property on any at- 
 tachment, the defendant may replevy it, that is, have it re-dehv- 
 ered 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. 
 
 OHAPTEE n. 
 
 PKOCEEDINGS IN OOTTET. 
 
 On the return of Process Executed. 
 
 Sec. 23. Declaration. The first step for the plaintiff after 
 the return of the process, is the filing of his declaration. He 
 is allowed three days to file it ; Wednesday, therefore, is the 
 last day allowed him' : if, however, he cannot fiOle it by that day, 
 he may, by leave of the court, have further time ; but he must 
 show good cause for the delay by afiSdavit. Filing the declara- 
 tion, is simply depositing it with the Clei-k. 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, 
 
 Wilson County, \ August Term, 1851. 
 
 James Hart, by WiUiam Blackstone, his Attorney, complains 
 of John Smith, who is in court by summons, of a plea, that he 
 render unto to him one thousand dollars which he owes to and 
 unjustly detains firom him. For that the said John Smith, on 
 the 1st day of January, 1850, at, &c., in said county, by his 
 certain 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 there- 
 of, and then and there delivered said note to the plaintiff; yet 
 the said defendant has never paid the said sum of $1,000, or 
 any part thereof, but refases 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 : 
 
21 
 
 1. Ths marginal venue : " State of Tennessee, Wilson coun- 
 ty." That must always be the, county in which the suit is 
 brought. 
 
 2. The title of the court : " Circuit court." 
 
 3. The term of the court : " August Term." The declara- 
 tion should always be entitled «f 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 surname should both appear in full, not abbreviated as J. 
 Hart. They should be the same as in the writ. 2. By what 
 Attorney the plaintifi" sues. This, however, is not necessary, 
 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 would say so. 4. The 
 form of action, as in the writ. 
 
 5. The coMse 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 defendant may have an opportunity of exam- 
 ining them, and admitting or denying them. 6. The amount 
 o£,the debt. 7. When it was to be paid. 8. The delivery of 
 thfe 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. 24. 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 endorseri 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., 
 aforesaid, 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 de- 
 
32 
 
 manded 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 
 liable to pay said sum of $1,000 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 endorsee cannot recover against an 
 endorser, unless he presents the note to the maker when it 
 becomes due, and gives notice to the endorser of his refusal 
 to pay. 
 
 Declaration in Replevin. " James Hart, by his Attorney, 
 complains of John Smith, who is in court by summons, of a 
 plea, wherefore he took' and detained his horse ; for that the 
 said defendant, oa 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 $1,000, and un- 
 justly detained the same nntU the 6th day of April, 1851, to 
 plaintiff's damage $200. 
 
 K 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 detinug, the forms of which will be found 
 in various books The Law Eeform 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. 25. JProoeedings 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. 
 
 Seo. 26. Steps to he tahen hy Defendants Attorney. He 
 should first see that a prosecution bond has been given, that it 
 is such a bond as vrill bind the security to pay the costs, and 
 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 will be 
 done unless 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, un- 
 less the plaintiff justifies his security, that is, proves them to be 
 
23 
 
 sufficidnt, or gives other security. The defendant's affidavit 
 might be in this form : 
 
 " James Hart \ 
 
 vs. > 
 
 John Smith. ) 
 
 The defendant makes oath that Jacob Jones, the plaintiff's 
 prosecution bail, is as he believes insolvent, having no property 
 except what is exempt from execution. 
 
 S'^yorn to and subscribed in open Court, 1st August, 1851. 
 
 W. Haet, 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- 
 tiff's 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, that is, an order is mad^ on him to give or jus- 
 tify his security by a certain time, or his suit will be dismissed. 
 
 Sec. 21. The defendant may also have a rule or order on 
 the plaintifl''s Attorney, to show his authority for prosecuting 
 the suit. This does not require an affidavit, if made at the 
 first term ; but if made at a subsequent term, it must be on affi- 
 davit of the defendant or his Attorney or agent, showing some 
 good reason for believing that he has no authority. On this 
 rule, the Attorney must show that he is employed by the plain- 
 tiff, or the suit will be dismissed. 
 
 Sec. 28. He should examine the writ careftilly, and see that 
 it is signed by the Clerk, has the other requisites of a valid 
 wyit, the names of the parties, the form of action, when it 
 issued and was executed, whether five days before Court, or on 
 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 the parties, the form 
 of action, and the amount claimed ; whether the cause of action 
 accrued before the writ issued, and whether a good cause of 
 action is set forth, and if a note or other written contract is 
 sued on, whether it is correctly described. 
 
 Sec. 29. If the plaintiff has not filed his declaration in 
 time, he may be non-suited or non-prossed. The proper tim e 
 to do this is on the calling of the roll on the morning of the 4th 
 day of , the Term. Every morning the Clerk calls the list or 
 roll of the Attorneys, that they niay make such motions as they 
 may think necessary in their cases. When your name is called,, 
 you move the Court to non-suit the plaintiff for want of a dec- 
 
24 
 
 laration. 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 wi-it, is the filing of a declaration ; failing to 
 file 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. 
 
 Sec. 30. Entry of the N'on-suit. "Whatever the Court does 
 in a suit is to be entered by the Clerk on the minutes, that is, on 
 his record book. The non-suit is entered thus : 
 
 "James Hart, \ 
 
 vs. > Debt. 
 John Smith. ; 
 
 Came the defendant by his Attorney, and the plaintiff being 
 solemnly called to come into Court and prosecute his suit, came 
 not, but made default. It is therefore considered by the Court 
 that the defendant go hence and recover of the plaintiff and 
 Jacob Jones, his security in the bond given for the prosecution 
 of this action, the costs of this suit." 
 
 This entry- consists of several parts: 
 
 1. The names of the parties in foil, unabbreviated. 
 
 2. The action. This and the names will show in what case 
 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 both parties, the entry ntust 
 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 
 case. 
 
 4 A recital of what was done : the defendant called the 
 plaintiff to come into Court and prosecute his suit ; his coming 
 would have done no good unless he had prosecuted his suit by 
 filing his declaration. 
 
 6. The judgment: "It is therefore considered," &c. This is 
 the legal consequence of the facts recited. An entry must 
 always 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 plaintifl's com- 
 plaint. He recovers the whole costs of the suit, not the costs 
 alone of his defence, but the whole costs of the suit, not for 
 himself, but for the officers who are entitled to them. 
 
25 
 
 Sec. 31. Setting a^side tTie Non-suit. At any time during 
 tie same term, the plaintifl' may come in and move the Court 
 to set aside the non-suit, reinstate the suit, and permit him to. 
 file his declaration. But to do this, he must make affidavit 
 showing some good reason why he failed to file his declaration 
 in time. K he does not doi this, he may commence his suit 
 again. So if he voluntarily comes and dismisses his suit him- 
 self, which is called a tetrmavL, he may commence a new suiti 
 Nothing but the decision of the case on its merits wiU- bar a 
 new suit. 
 
 Sec. 32. Confession of Judgment. The defendant may, if 
 he chooses, confess the facts stated in the declaration, and if he 
 stops at that, judgment is at once rendered against him thus : 
 
 " Came the plaintiff by his Attorney, and also the defendant 
 in proper person, (or by Edward Coke, his Attorney), who says 
 he has nothing to allege in bar of the plaintiff's action. It is 
 therefore, considered by the Court that the plaintiff recover of 
 the defendant his debt of $1,000, and $35, damages for the de- 
 tention thereof, and also the costs of suit," 
 
 Where a man is indebted to another by note, bond, covenant^, 
 or bill of exchange, or account settled and signed by the par- 
 ties, he may come into Court at the request of the creditor, 
 without any process or suit, and confess, judgment. 
 
 Sec. 33. Demurrer.. If admitting all the facts stated in the 
 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 Hartj \ 
 
 vs. > Circuit Court, August Term, 1851. 
 
 John Smith. ) 
 
 And the defendant, by his Attorney, comes and says the mat- 
 ters alleged 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 th.e, plaintiff avers that his declaration, is sufficient, in 
 law. W. BLACKSTONE, Attorney." 
 
 This makes an issue in law, which is to be 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 
 
26 
 
 demurrer, the plaintiff recoTers 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 farther proceedings. But_ if it re- 
 quires 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 overuling 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 Court, that the plaintiff recover of 
 the defenda,nt $1,000, the debt mentioned in the declaration, 
 and $30, damages for the detention thereof, and also the costs 
 ol this suit." 
 
 Interlocutory judgment on overruling demurrer, same to "de- 
 fendant," then proceed " his damages sustained by reason of 
 the breach of covenant (or promise, or by reason of the premi- 
 ses), alleged in his declaration, to be ascertained by a jury, at 
 the next Term bf this Court, and also the costs of this suit." 
 
 Entry sustaining the Demurrer. — "The Court is of opinion 
 that the law is for the defendant. It is therefore considered by 
 the Court that the defendant go hence and recover of the plain- 
 tiff the costs of this suit." 
 
 Sec. 34. Special Demurrer. This is the same in form as 
 the general demurrer, except that it goes 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- must specially except to 
 these formal defects or else he cannot take advantage of them. 
 The reform law of 1852 abolishes the special demurrer, so that 
 if pleading is substantially good, however informal, no excep- 
 tion to it is allowed. 
 
 Sec. 35. When the defendant's 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 defense : if he makes oath for instance 
 that he has paid the debt sued for. When he asks for leave to 
 plead, he must have his plea ready, and sworn to : the Court 
 will allowhim to file it on such terms, that is, on the payment of 
 so much of the costs as the Court thinks it reasonable he should 
 pay. Judgment is rendered against him for such costs, and 
 
27 
 
 that forever clears the plaintiff of those costs, even if he lose 
 ,the suit. 
 
 Seo. 36. 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. 
 So if John Smith and Daniel Hose were makers of the note, and 
 you have sued Smith alone, you might make Hose a defendant 
 by amendment, but in that case you would have to issue a sum- 
 mons 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 suffi- 
 ciently appears without affidavit. Suppose you have brought 
 an action of debt on a note under seal payable in Bank notes : 
 you may move to amend your writ or declaration, so as to 
 change it to an action of covenant. You would make this affi- 
 davit : 
 
 " James Hart, i 
 
 vs. > 
 
 John Smith. ) 
 
 The plaintiff makes oath that he brought this action on a 
 covenant to pay $1,000, in Bank notes, and by mistake his 
 writ is in debt instead of covenant. 
 
 Sworn to and subscribed in open Court, 6th August, 1851. 
 
 W. Haet, Clerk. JAMES HAET." 
 
 On this affidavit, the Court will allow you to file your declara- 
 tion in covenant. K 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 at a subsequent term, the Court allows 
 them on such terms as may seem reasonable. 
 
 PLEAS. 
 
 Sec. 37. If the defendant sees no ground to demur, he 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 ordemiijr; after the three days allowed the plaintiff to 
 declare. Pleas, are Qithev dilatory or peremptory. Pilatory 
 pleas state some feet that shows that the plaintiff cannot pro- 
 ceed in his action as at present brought. Peremptory pleas 
 state some fact that shows he cannot recover in any form at 
 any time. •* 
 
 Sec. 38. 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 case 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 Sun- 
 day, 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 
 the same cause, or there may be many other causes why it 
 should be abated. 
 
 Form of the plea in abatement : 
 
 ' r Circuit Court, Wilson County, 
 John Smith. S August Term, 1861. 
 
 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 issuad on Sunday, the day of r, 1851, without any 
 
 affidavit 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 of August, 1851. 
 
 J. SMITH. 
 W. Haet, 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 repfyj denying the truth of the 
 
29 
 
 plea, and it is found against the defendant, the plaintiff recov- 
 ers his debt and damages. All pleas in abatement have to be 
 sworn to, unless the fact pleaded appears on record. 
 
 PEEEMPTOKY PLE^S. 
 
 Sec. 39. These are called pleas in defence^ because they set 
 up a defence to the action : pleas to the m&rits^ , because they 
 deny the merits of the plaintiff's action : in bar, because they 
 state facts, that if true, effectually bar the demand. They are 
 of two 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 facts stated in the' 
 decla;ration, but allege some fact which avoids the legal effect of 
 them. These are called spedial pleas, because they specify cer- 
 tain facts which bar the plaintiff's action. 
 
 Sec. 40. General Issue. In every action there is a plea of 
 traverse, which is called the general issue, being a general de- 
 nial of the declaration. Thus, in the action of debt, on simple 
 contract, which is the sort you have brought, the general issue 
 is called nil debet, and is as follows : 
 
 "James Hart, ^ (..^.^^.^ ^^^^^^ Wilson County, 
 
 John^Smith. ) ^P^^ '^^™' IS^l- 
 
 And the defendant, by his attorney, comes (and defends the 
 wrong and injury, when, &c.,) and 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 puttiiig himself on the country, is called tendering an 
 issue. This issue the plaintiff accepts by what is called a sirrmt 
 liter, which the plaintiff writes immediately under the plea, on 
 the same paper, as follows : 
 
 And the plaintiff doth the like. 
 
 W. BLACKSTONE, Attorney. 
 
 This is an 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. 
 
 N^il 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 siiuje the act of 1850 
 allows the same defences to,a specialty as to a simple contract, 
 nil debet, is a good plea to debt on a bond. 
 
30 
 
 Won est factum, is the general issue in actions on Scaled in- 
 stniments. 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." 
 
 Aon detinet. This is the general issue in detinue. It runs 
 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 aU traverses. 
 
 Won assumpsit, is the general issue in assumpsit, and is thus : 
 " That he did not undertake or promise in manner," &c. 
 
 JVot ffuilty, 18 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. 
 
 JVbt guilty, in trespass on the case. " That he is not guilty 
 of the premises above laid to his charge in manner," &c. In 
 replevin it would be the same as in case. 
 
 Sec. 41. Special Pleas. These commence just as the gen- 
 eral issue. The defendant "comes and defends the wrong," 
 &c. They then- have an actio non clause, thus, "and says the 
 plaintiff ought not to have and maintain his aforesaid action 
 against him, because he says," and then proceeds to state the 
 matter of defence ; thus, suppose his defence is, that he paid 
 the debt after it became due, he wiU proceed after, " says," that 
 after said promissory note becom-e due, and before the com- 
 mencement of this suit, 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. And this he is ready to verify. Where- 
 fore he prays judgment, if the plaintiff ought to have or main- 
 Jain his aforesaid action against him." 
 
 Wi It is presumed that under the late Reform Law, abolishing 
 special demurrers, the defence, the actio non, and the prayer 
 of judgment will be disused ; they are serxselesa formula. 
 
 All special pleas conclude with a verification, " and this he 
 is ready to verify," to prove or make true. 
 
 Pleadings in hri^. The general issue, and piany special 
 pleas are not drawn out at all, but arepleaded in brief, thus, "De- 
 fendant pleads not guilty," nil debet, non-assumpsit, cove- 
 nants performed, payment, statute of limitations," and the 
 like. To which the plaintiff merely adds, "issue," or if it is a 
 special plea, "replication and issue." The plaintiff may treat 
 such a plea as a ijullity and take judgment by default. But if 
 he chooses to reply to it, or take issue on it, he cannot after- 
 wards except to its' sufficiency. ■ 2 Swan, 273. 
 
31 
 
 REPLICATION. 
 
 Sec. 42. 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 sur-rejoin. But the jpleading usu- 
 ally stops at a general replication, which always concludes by 
 tendering 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 $1,000, and all the 
 interest due thereon, or any part thereof, in manner and form 
 as thqidefendant 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. 
 
 Sec. 43. The defendant may plead as many pleas in bar as 
 he chooses, however inconsistent they may be with one another. 
 He may plead a plea of traverse, and of confession and avoid- 
 ance, he may plead nil debet and payment, to an action of debt ; 
 not guilty, and the statute of limitations to an action of tres- 
 pass ; and as many other different pleas as he may think pro- 
 per. But there can be but one replication to a plea, except the 
 plea of set-off: nor can the defendiant both plead and demur, 
 or plead two pleas in abatement. ^ 
 
 Sec. 44. Limitations. There are certain .times within whi^P 
 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 defend- 
 ant may plead the statute of limitations, which is a plea of con- 
 fession andavoidance. The statute begins to run whenever the 
 plaintiff has a right to sue. Actions of assumpsit, trespass af- 
 fecting property, case, trover, detinue and replevin, must be 
 commenced within three years after the cause of action accrued ; 
 debt on simple 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, a± the time the cause of action ac- 
 crues, an infant, a married woman, insane, in prison, or outiof 
 
32 
 
 tlie United States, he has the times aforesaid, after coining of 
 age, discoverture, restoration to sanity, enlargement out of pri- 
 son, or return to the United States, to bring the action, except 
 in ejectment, in which he is allowed but three years ; should he 
 die before the disability is removed, the same time is allowed 
 to his representative to sue, 
 
 Seo. 45. Oyer. When the plaintiff makes profert of any 
 writing, as you have done of the note declared on in this case, 
 the defendant may crave oyer of it, and set out a copy of it in 
 his plea. This makes it a part of the declaration, and if it so 
 varies from the description of it in the declaration, as to show 
 that the plaintiff has no cause of action, the defendant may 
 demur. But, if, notwithstanding the variance, it stiU appears 
 that the plaintiff has a good cause of action, the defendant 
 should plead the variance in abatement. Oyer is prayed thus : 
 
 "And the said defendant by E. Coke, his attorney, craves 
 Oyer of the said promissory note, and it is read to him in the 
 words and figures following, to wit : (here insert it,) afe then 
 procee(| to demur, or plead, as in the above forms. 
 
 Sec. 46. Set-off. If the defendant can make no defence to 
 the plaititiff 's debt, he may set-off against it any debt which 
 the plaintiff o'wes him. He may either plead the set-off speci- 
 ally, or he may plead the general issue, and give the plaintiff 
 written notice, that he will introduce the set-off in evidence on 
 the trial. If defendant's set-off is a larger debt than the plain- 
 tiff'fe, so much of it as is equal to the plaintiff's is set-off, and 
 for the balance, the defendant wiU be entitled to a judgment 
 against the plaintiff. 
 
 Sec. 47. Judgment ly defcmlt. K the defendant fails to 
 plead or demur within the time allowed him, the course for the 
 tt)laintiff is, to take judgment by default, which he does, by or- 
 dering the Sheriff to call the defendant to come into court and 
 •aefend the suit, oi* judgment by default will be taken against 
 him. This judgment is final or interlocutory, as in the case of 
 ■overruling a demurrer. The entry too is the same, except the 
 recital. It is as follows : 
 
 " Came the plaintiff by his attorney, and the defenda,nt be- 
 ing solemnly called to come into court and defend this suit, 
 came not, but made default. It is, therefore, considered by the 
 court, that the plaintiff recover of the defendant his debt of 
 $1,000, and $35, the interest thereon, aqd also the costs of 
 this suit." 
 
 -If it be an interlocutory judgment, it would be " that the 
 plaintiff recover of the defendant his damages, to be ascertain- 
 ed by a jury at the next term of this court.'" 
 
83 
 
 Judgment by default may in like manner be taken against 
 the defendant, if he fails to rejoin to the plaintiff's replication. 
 
 Sec. 48, An interlocutory judgment by default, may be set 
 aside at any time during the term at -wJl^it is taken, or at the 
 next, term, by the, defendant's showing by affidavit a good ex- 
 cuse 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. But a final judgment by default can only be set 
 aside by writ of error, coxarn nobis. 
 
 Seo. 49. K the defendant has duly pleaded, and the plaintiff 
 fails to reply, the defendant may take a judgment of non pros 
 against him, jiist as in the case, of Ms failing to file his decla- 
 ration. 
 
 Sec. 50. Abatement and Revivor. 1. If the plaintiff dies 
 during the progress of the suit, his Attorney or the defendant, 
 may suggest and prove his death to the Court, at the next term, 
 and oh. motion, his administrator or executor may be made plain- 
 tiff in Y^ 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 hfiii'), executor or administrator does not revive it 
 during the nextnerm after the suggestion of his death, the de- 
 fendant may, on motion, abate the suit. 2. If the defendant 
 dies, the plaintiff may suggegt and prove his death, and revive 
 the suit against his adpoiinistrator or executor, or against his 
 heir, if it be ejectment ; and he must give notice to the admin- 
 istrator, executor or guardian, by scire y^oiffis, that he will at 
 the next term after suggestion, move to revive the suit against 
 him. 3. If there be several plaintiffs, not partners, 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, or continue the 
 case two terms, and then if it is not revived by the representa- 
 tive, the defendant may, on motion, abate the suit. 4. If there 
 are several defendants dnd one dies, and has a representative, 
 that is, an administrator or executor appointed, before the case 
 is called for trial, the plaintiff must revive the suit against him; 
 but if there be* no representative, the plaintiff may on proof of 
 that, fact, proceed to trial with the surviving -defendant. 
 
 If a single womanis plaintiff and marries, the husband may 
 nave himself made plaintiff with her. So if a single woman 
 is defendant and marries, her husband may be made defendant 
 hj scire faoias. 
 
 ■ All actions may be thus revived, by and against the repre- 
 sentatives of deceased parties, except actions for injuries to tl*e 
 3 
 
34 ' 
 
 person or reputation, such as assault and battery, slander, ma- 
 licious prosecution, and assumpsit for breach of marriage _ con- 
 tract, when the parties to one of these dies before final judg- 
 ment, the action abates. 
 
 Seo. 51. Rule to plead and try. If a defendant is not ready 
 to plead within the tiine 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 
 postpone the trial one term, unless it is provided that it shall 
 not delay 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 pleadingssare not 
 made up until the next term, the issue wiU not stand Tor trial 
 until the next term thereafter. The parties, therefore, frequent- 
 ly agree to put the case under a rule to plead^nd try at the 
 next term, and then the pleadings will be filed and the cause 
 tried at the same term ; their agreement dispenses with the reg- 
 ular rules of practice. ' 
 
 Seo. 52. Rrfevence to Arbitrators. Parties sometimes agree 
 to refer a case to the decision of arbitrator^ by a rule of Court, 
 agreeing that their award shall be made the judgment of the 
 Court, The arbitrators report their decision under their hands 
 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 belween them to arbitrators, although there 
 is no law suit about Sit, 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. 53. Agreed Case. By the same statute, the parties to 
 any dispute, may submit to the Court a statement of the facts, 
 accompanied with an aflfdavit, 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 are famished 
 for the settlement of controversies, as simple and easy as par- 
 ties could desire. 
 
35 
 
 Seo. 54. Devisavit vel non. Wilk arc to be proved in the 
 County Court of th.« qounty in which the testator resided at the 
 tinle of his death. They are usually offered for probate by the 
 executor, but any legatee may do it. When the heirs of the 
 deceased, or atty of tiiem, or any other person interested against 
 it, wish to contest the will, they must appear in the County Court 
 when it is offered for probate, and contest it, that is, deny that 
 it is the will of the deceased, upon which they are to give bond 
 and security to the executor, or legatee who offers it for probate, 
 in the sum of §500, conditioned to be void if they shall suc- 
 eessfdlly contest the will, or in case of failure to pay all such 
 costs as may accrue in the suit. Any adult legatee who has 
 notice that the will is contested, must give a similar bond, or 
 renounce any claim under the will. If all the legatees refuse 
 to give bond, the will cannot be admitted to probate ; but the 
 bonds being given by the legatees and contestants, the County 
 Court sends up to the Circuit Court the original will and a 
 transcript of the record, showing the offer of the will for pro- 
 bate, the motion to contest it, and the bond entered into on both 
 sides. In the Circuit Court it is placed on the docket, the ex- 
 ecutor or legatfee offering it for probate, being plaintiff, and the 
 contestants defendants ; and an issue is made up nnder the di- 
 rection of the Court, which is regularly triable at the same 
 term. 
 
 The pleadings are very short, and in the following form : 
 
 " STATE OF TElinSTESSEE, ) Circuit Court, 
 
 Wilson County. \ August Term, 1852. 
 
 James Hart produces here in Court a paper writing, purport- 
 ing 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 Koe, in which the said James Hart is named as exec- 
 utor ; and the said Hart avers that the said paper writing is the' 
 last will and testament of the said John Den, deceased. 
 
 WM. BLACKSTONE, Attorney." 
 
 And John Smith, the nephew and heir at law of the said 
 John Den, deceased, comes and says that the said paper wri- 
 ting is not the last will and testament of the said John Den, 
 deceased, and of this he puts himself on the country. 
 
 EDWAED COKE, Attorney. 
 And the plaintiff doth the like. 
 
 BLACK^TONE, Attorney. 
 
 This is called an issue of devisavit vel non. It is submitted 
 to a jury, and the executor or legatee, being plaintiff, has to 
 prove the will by all the subscribing Witpesses, if they can be 
 
36 
 
 had ; and if not, he must prove their hand writing, K there 
 be no subscribing witnesses, 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 va- 
 lidity of the will. 
 
 The verdict of the jury and the judgment of the Court, is to 
 be certified to the County Court, so that they may proceed to 
 appoint an administrator, if the decision is against the wiU, 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. The petition must shbw 
 1st. That he is an heir of the deceased, or is otherwise interest- 
 ed in the setting aside the will, as that he is a legatee in a prior 
 will, which this revokes. 2nd. The facts which show that the 
 probated will is not really the will of the deceased. The execu- 
 tor and legatees must be cited to appear ; when they appear, 
 they will have a right to answer the petition and deny the facts 
 stated in it. If the facts which show the petitioner's interest 
 in setting aside the will are denied, the County Court will pro- 
 ceed to investigate them ; and if not proved by the petitioner, 
 the petition will be dismissed. If «they are admitted or proved, 
 the probate will be set aside, the bonds of the parties taken, 
 and the record sent up to the Circuit Court for an issue and 
 trial, as if there never had been a probate. If the contestants 
 do not prosecute the contest in the Circuit Court, judgment will 
 be rendered against them for the costs, and the will sent back 
 to the County Court, where the old probate will be re-instated. 
 
 After a will has been once fairly contested and established, it 
 never can be contested again, even by those who were not par- 
 ties to the issue. * 
 
 CHAPTER in. 
 
 THE TKLAl. 
 
 Seo. 55. In the regular course of a law suit, the nest 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 
 evidence wilJL consist either of the testimony of witnesses or 
 
37 
 
 written documents. The former is obtained either by enforcing 
 the attendance of the ■witnesses at Court, or by taking their 
 depositions before some commissioner, who returns it to Court 
 to be read in the case. 
 
 Seo. 56. Personal attendance of Witnesses. You have a- 
 right to deijiand of the Clerk a subpoena for any witness in the 
 State, directed to the Sheriff of the county where yotf suppose 
 he may be found. The summons must, like the original process, 
 issue and be served, at least five days before the commence- 
 ment of the term to which it is returnable. During the trial 
 term, however, a supcena instanter, returnable instantly, "be- 
 fore the Circuit Court now sitting," may issue for witnesses. — 
 When you want the witness to produce any document in evi- 
 dence, which he has in his custody, you issue a subcepna Duces 
 tecum, in which the Sheriff is conimanded not only to summon 
 the witness to appear himself and give, evidence, but to bring 
 with him the document which is described in the subpoena. 
 
 Sec. 57. The witness is bound to attend, not only at the 
 term to which he is summoned, but at every subsequent term 
 until the cause is determined, or until he is discharged by the 
 party who has him summoned. If he does not attend, he for- 
 feits $125, which you may recover as follows : "When the suit 
 is called, or even before, you may direct the Sheriff to call the 
 witness " to come into Court, and give evidence in behalf of 
 the plaintiff, in the case of James Hart against John Smith, or 
 he will forfeit according to subpoena." This subpoena for a 
 witness, is precisely the same as the original summons to the 
 words "August- next," it then proceeds "to give evidence in 
 behalf of the plaintiff in the suit of James Hart against John 
 Smith, under the penalty of $125, in case of failure." The 
 conclusion is the same. It is the penalty of $125, that you re- 
 cover against him when he fails to come at the call of the Sheriff. 
 The judgment for the penalty is interlocutory, called a judg- 
 ment nisi. 
 
 Seo. 58. Scire Facias. On this judgment, a Scire Facias 
 issues against the witness, which recites the judgment nisi, and 
 commands the Sheriff to give notice to the witness to appear 
 at the next term and show cause, if any he has, why the judg- 
 ment should not be rendered absolute. If the Sheriff returns 
 thjs writ executed, the witness may appear and plead to the 
 Scire Facias, any excuse he may have for failing to attend, such 
 as sickness or other inability, to which : the plaintiff may reply 
 or demur, as in case of plea to a declaration. If an issue of 
 fact is formed, at stands for trial at the next term. If the de- 
 fendant fails to appear, judgment final by default may be taken. 
 If the Sheriff returns the Scire Facias, that the defendant is 
 
38 
 
 not found, an alias issues ; if that is returned, not found, the 
 judgment may be made absolute or final, as if the writ had been 
 duly executed and the defendant had failed to appear. These 
 returns of not found, on the writ of Scire Facias, are called 
 nihils, and two nihils, are equivalent to actual service of the 
 writ. , 
 
 Sec. 59. Attaohment and Damages. The witness is not 
 only liable to this forfeiture, but also to an action on the case 
 for whatever damages the plaintiff may sustain by reason of his 
 failure to attend. But as the witness may be insolvent, and 
 care nothing about pecuniary liabilities, and as the party may 
 very much need his testimony, he may have an attachment to 
 bring him in to testify. To obtain this, he must show by affi- 
 davit that the witness is willfally absent. On this showing, he 
 moves the Court for an attachment, which is a writ command- 
 ing the Sheriff to take the body of the witness and bring him 
 into Court to testify. If 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. 60. Deposition. The next mode 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 be 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 Treasurer 
 of the State, Eegister of the Land Office, Judge of the Supreme 
 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. 61. 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 he 
 lives in anothei State or county, or is one whose deposition 
 may be taken. Whereupon a commission, called dediinus po- 
 testatem, 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 order 
 shall be necessary, but a party without application to the 
 Court or Clerk, and without any commission of course, may 
 take depositions in all cases, in which the law allows them to 
 be taken. 
 
Sec. 62. 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 when taken i\nder the act of 1852, without 
 an order, the number of days as prescribed by law will have to 
 be given. In the first, third and fourth cases mentioned above, 
 the law prescribes no time ; but in the other cases, the Act of 
 1817, ch. 189, provides that if the witness lives fifty miles from 
 the adverse party, he must receive the notice five days before 
 the day appointed for the taking it ; if between 50 and 100 
 miles, ten days ; if from 100 to 150 miles, fifteen days ; if from 
 150 to 250 miles, twenty days ; if over 280 miles, thirty days. 
 If the distance were such that thirty days would not be suffi- 
 cient, the order would have to be made by the Court : — So if it 
 were the case of a witness living" out of the State, or about to 
 leave, or unable to attend Court. It may be, however, that the 
 Courts will determine in these latter cases, 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 form : 
 
 " 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 of Wilson county, wherein I am 
 plaintiff and you defendant; this, the 10th day of April, 1851. 
 
 JAMES HAKT." 
 
 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, endorsed; " Delivered a copy to John Smith, 11th 
 of April, 1851. W. Scott, Sheriff." 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 notice to prove that he*delivered a copy ; 
 whereas, the return of the fact by a Sheriff or constable, is suf- 
 ficient evidence of it. 
 
 Sec. 63. The object of the notice is to give the defendant an 
 opportunity to attend and cross-examine the witnesses. If hog^, 
 does attend before the magistrate and cross-examine, it is not 
 necessary to prove t;hat he had notice. ^ 
 
 . Sec. 64. The party who takes depositions without an order, 
 according to the Act of 1852, wiU have to be prepared to prove 
 on the trial, that the witness was one whose deposition might 
 
be legally taken. Where he has taken it under an order of the 
 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 the adverse party, he should show 
 when he offers the deposition in evidence, that the deponent 
 was a non-resident, a Judge, leaving the State, or in some 
 other condition that warranted the taking of the deposition. It 
 is presumed, however, that as the affidavit would have been 
 sufficient evidence to warrant an order to take it, it is sufficient 
 to warrant the admission of it in evidence. In many cases a 
 deposition is taken de hene esse, by order of Court or of the 
 Clerk ; which means that they are taken upon a state of facts 
 which at present warrants it, and if they continue to exist at 
 the time of trial, the deposition is to be read ; but if they have 
 ceased to ejists, so that you can and ought to have the personal 
 attendance of the witness, the deposition cannot be read. Thus, 
 if you take a man's deposition because he is sick, or for other 
 cause is unable to attend the trial, you must have his attendance 
 if the disability is removed. 
 
 Sec. 65. Sometimes an order of Court to take the deposition 
 designates the time and place of taking 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 will be needed on the trial, during 
 the term of the Court at which the order is made. It is in 
 the discretion of the Court, to make such order, whenever the 
 justice of the case seems to demand it. 
 
 Sec. QQ. Witnesses in a suit commenced under the pauper 
 law, may at ally time apply to the Court to have their deposi- 
 •tions taken, and 'be discharged. As there is no security for 
 costs, 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 proper 
 place, that at the return of the writ, the defendant may move to 
 dismiss the suit on two grounds ; 1. That the plaintiff's allega- 
 tion of poverty is p/obably untrue, or 2. That his cause of action 
 is frivolous or malicious. He must show these grounds, or one 
 of them, by the affidavits of one or more disinterested persons. 
 On these affidavits the Court will make a rule on the plaintiff, 
 to shew cause why his suit should not be dismissed. He 
 will be allowed to bring in the affidavit of other disinterested 
 persons, to rebiit the affidavits introduced by the defendant; and 
 the Court will dismiss the suit or not, according to the truth of 
 the case as it may appear fr-om these affidavits and counter- 
 affidavits. 
 
41 
 
 Seo. 67. "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 
 such notice to the adverse party as the Judge may prescribe, 
 take his deposition, to be returned to the Kegister 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 ch. 24. 
 
 Sec. 68. The magistrate who 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, directed to the 
 Clerk, or deliver it to somfe 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 eh. 158. 
 
 Sec. 69. Documentary Evidence. ■ This will consist either of 
 public records or private 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. K it is a record of a different Court, 
 you must have a copy of the whole record, made out and certi- 
 fied by the 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 record, is meant the prosecution bond, 
 writ and return on it, the pleadings, verdict, judgment and ex- 
 ecution. The subpoenas for witnesses are no part of the record, 
 unless the fact you want to prove involves the <fact of the exist- 
 ence of the subpcena. If it is a record from the Court of another 
 State, you must not only have the Clerk's certificate, but also the 
 certificate of the Judge of the Court that he is Clerk, and that 
 his certificate is in due form. K you want the jiidgment and 
 other acts of a Justice of the Peace, your best way is to sum- 
 mon him, or whatever other Justice has the custody of his pa- 
 pers, if he has resigned, to come as a witness, and bring with 
 him the papers. It, however, you can get the papers, any wit- 
 ness may prove his hand writing. 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 prop- 
 erly 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 wiU have to be a copy duly i3ertifled by the Clerk of the 
 
42 
 
 County Court. An officer's bond, or administrators and guar- 
 dians' bond, must be certified by the officer who has the taking 
 or keeping of them, usually the County Court Clerk ; and he 
 certifies a copy of them. The copy of any office paper is certi- 
 fied by the officer, and that makes it evidence. 
 
 Sec. 70. You must be prepared with witnesses to prove any 
 private document which you may want to produce in evidence. 
 You do not have to prove the writing you sue upon, and which 
 you have made profert of in your declaration, unless the defend- 
 ant has denied it by the plea oinon est factum. Khe has not so 
 denied it, it is admitted. But all other papers have to be proved 
 before they are admitted in evidence. If you have an unregis- 
 tered deed, a receipt, letter, note or any other paper, you must 
 have witnesses summoned to prove its genuineness ; and they 
 must always be the subscribing witnesses, if there be any, and 
 they can be reached by a subpcEua. But if there be no sub- 
 scribing witnesses, you may prove the hand-writing of the party, 
 and you must have witnesses summoned for that purpose who 
 are acquainted with his hand-writing. If the subscribing wit- 
 nesses 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 hand-writing 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 pre- 
 pared to prove it, and to prove its contents if he fails to pro- 
 duce it. 
 
 Sec. Y1. If a writing is lost, you must be prepared to prove 
 that it once existed, and that search has been naade 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 yom- 
 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, 
 the instrument is admitted, and you have no proof to make of 
 it ; but if he so denies it, you must prove that the instrument 
 once existed, that it was executed by defendant, and that proper 
 search has been made for it. Your own affidavit of its loss 
 will 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 anybody else, who may 
 
43 
 
 chance to have acquired the possession of it, nnder such cir- 
 cumstances as will ffive him a right to recover it of the defend- 
 ant. By the act of 1852, however, the plaintiff is not bound 
 to give this indemnity, if the instrument has been due over 
 two years ; and inthatvcase the defendant is not liable to be 
 sued on it by anybody else. 
 
 Sec. 72. Discovery. 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. This petition must be sworn to. The 
 Judge will thereupon grant on order on the party, to answer 
 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 five days before the trial term. But if the 
 petitioner will make oath that he did not know of the materi- 
 ality of the discovery, until within five days before, he may 
 still have the discovery, at any time before the trial. Acts 1853, 
 p. 100. 
 
 At Court, if the party interrogated, shows no gOQd cause to 
 the contrary, he wiU be compelled to answer ; and then the an- 
 swer may be read to the jury as evidence against him ; or if 
 he does not answer, the petition may be taken for confessed, and 
 read against him as an admission. 
 
 THE TRIAL TEEM. 
 
 Sec. 73. "When the Judge takes his seat upon the bench, he 
 orders the Sheriff to open Court, which he does by simply pro- 
 claiming the Court open axjcording to law. He is then directed 
 to call the Venire, that is, the jurors summoned to attend the 
 Court. The County Court, at the first term after the adjourn- 
 ment of the Circuit Court, are to appoint twenty-five jurors, 
 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 some 
 good reason why any of them 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 
 
44 
 
 they constitute the Orand Jury, and the balance constitute 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 one as foreman, to 
 whom the Clerk administers the following oath : 
 
 " You solemnly swear, as foreman of this Grand Jury, that 
 you wiU diligently inquire into, and truly present, aU such mat- 
 ters and things as shall be given you in charge, hj the Court, 
 or otherwise come to your knowledge ; that the counsel 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 wiU, neither will you leave any one unpresented through 
 fear, favor, affection or reward, or any hope thereof; but in aU 
 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 yonr 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 caU the roll of Attor- 
 neys, for the purpose of giving them an opportunity to make 
 such motions as they may deem necessary, in their cases. — 
 When this is over, the trial docket is taken up. There are 
 usually upon that docket a good many cases, which are not liti- 
 gated ; actions of debt have been brought on notes, to which 
 the defendant has put in some plea, merely for the pm-pose of 
 delay. It is the common course of practice, to dispose of these 
 cases first, and for the Attorneys 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 ovea', and then it 
 will go to the heels of the docket, that is, it loses its turn, and 
 all the other cases will stand for trial before 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. 
 
 Seo. 74. The venue may be changed, which means that the 
 
45 
 
 trial may be transferred to another cOTinty. This may be done 
 at the issue term, or at any time during the trial term. In crim- 
 inal cases, this can only be done by order of the Court, on dis- 
 covering that an impartial jury cannot be had in the county. — • 
 lu' civil cases, however, the venue may be changed on the mo- 
 tion of 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 county ; 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 adjoining county, 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 recprd is filed with him, 
 to have them summoned again ; or if the parties do not desire 
 their personal attendance, they may give notice and take their 
 depositions. 
 
 AFFIDAYITS FOE A CHA^STGE OF VENUE. 
 
 " James Hart, ^ 
 
 vs. V Ejectment. 
 
 John Smith, ) 
 
 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 impar- 
 tial trial of this cause in said county. 
 
 Sworn to and subscribed in open Court, August 1, 1852. 
 
 JAMES HART. 
 
 W. Haet, Clerk." 
 
 A., B. and 0. also make bath, that they believe they are ac- 
 quainted with the public opinion and feeling, in regard to the 
 plaintiff {or the title set up hy the plaintiff) in the above cause, 
 and that there is so much prejiidice against him that he could 
 not have a fair and impartial trial in Wilson county. Sworn 
 to, &c. A. B.,:C. 
 
 ENTRY CHANGING THE VENUE. 
 
 " James, Hart, \ 
 
 vs. , > Ejectment. 
 Jehn Srcii^h. ) , 
 Came the parties, by their Attorneys, and on motion of the 
 
46 
 
 plaintiff, and it appearing to the satisfaction of the Coart, 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 
 Wilson county. It is ordered by the Court that this cause 
 be transferred to the Circuit Court of Kutherford county for 
 trial." 
 
 Sec. 75. Continuance. If either party is not ready for trial 
 when &e 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 
 not, 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 witness is absent, or that he has not succeeded 
 in procuring a certain document or deposition, which is mate- 
 rial for him. 3. That he has used proper dilagence 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 summoned 
 the witness, or that the materiality of the wanted testimony 
 came to his knowledge too late to procure 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 testimony. It is usu- 
 ally 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 demands the continu- 
 ance, no use is perceived for this' statement. 
 
 The affidavit is either general Gr special. A general affida- . 
 vit, is one which states in general terms, that the absent wit- 
 ness 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 partictilar- 
 fact the affiant expects to prove by him. This is always neces- 
 sary, on an application for any second or subsequent continu- 
 ance. 
 
 On the first continuance, the party has to pay the costs of 
 the term, which will be the fees of the witnesses on both sides, 
 for their attendance during the term, and the Clerk's fees for 
 entries made during the term ; for which judgment will be 
 entered against him; and although he may ultimately gain 
 the suit, he never can recover back those costs. On the second 
 or any subsequent continuance, the party will usually have to 
 pay_ the whole of the costa not previously paid or ^judged 
 against himself or his adversary. 
 
47 
 
 FOEM OF AFFIDAVIT FOR CONTINUANOE. 
 
 " James Hart, \ 
 
 vs. > Debt. 
 
 John Smith. ) 
 
 The plaintiff makes oath, that Job Fox is a material witness 
 for him in the trial of this case ; that he has been duly sum- 
 moned, but does not attend ; that his absence is not by this af- 
 fiant's consent ; that he expects to have his attendance ,at the 
 next term of this Court ; that he asks a continuance, not for 
 delay, but that justice may be done. 
 
 Sworn to and subscribed in open Court, Aug. 1, 1851. 
 
 JAMES HAET. 
 
 "W. Haet, Clerk." 
 
 If it is to be a special aflBdavit, for a second continuance, add 
 after the statement, that he is a material witness, &c., " he 
 expects to prove by said Fox, that he saw the defendant sign the 
 note, on which this su^t is brought, which fact he cannot prove 
 (or so ftilly prove) by any other witness, and then proceed as 
 above. 41 
 
 ENTET OF A CONTINUANCE. 
 
 " James Hart, \ 
 
 vs. V Debt. 
 
 John Smith. ) 
 
 On affidavit of the plaintiff, this cause is continued, on his 
 paying the costs of this term. It is, therefore, considered by 
 the Court, that the defendant recover of the plaintiffAe costs 
 of the term, and that execution issue for the same." W 
 
 If the affidavit offered by a party is defective, it is in the dis- 
 cretion of the Court to allow him to supply the defect by a sup- 
 plemental affidavit, or not. 
 
 Sec. 76. When a cause is called on the trial docket, if the 
 plaintiff is not ready for trial, and has no cause for a continu- 
 ance, he should take a non-suit ; for then he may commence 
 his suit again, or may, on good cause shewn, at any ftiture 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. K the defendant is not ready for trial, 
 and can allege no cause for a continuance, he may withdraw 
 his plea and confess judgment ; or go to trial on the chances 
 of success. If neither he nor his Attorney appear, the plain- 
 tiff may, nevertheless, submit the case to a jury, to be decided 
 on the testimony he may introduce. 'Where the case is under 
 
48 
 
 a rule to plead and try, or where time is allowed the defendant 
 to plead so as not to delay the trial, and he has not pleaded 
 when the cause is called, the plaintiff may take judgment hy 
 default, and submit the case to a jury immediately, to inquire 
 of the damages. Either at this time, or at any other stage of 
 the proceedings, the plaintiff may enter a nolle prosequi, as to 
 any one defendant, and proceed against the others. K his writ 
 is returned, executed on one defendant, and that the other is not 
 found, he may enter a nolle as to the one who is not 
 found, and proceed against the others. But if he wants to ob- 
 tain 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 at any time, before 
 final judgment, discharge one defendant, and proceed against 
 the other. 
 
 Sec. 77. The Trial. If the cause is not otherwise disposed 
 of, it is to be tried when called. If the issue is upon the ex- 
 istence of a record, it is to be tried by the Court, simply by in- 
 spection of thfe record. This is usually the case in pleas to 
 writs of Scire J^aoias, and to actions of debt on judgments 
 rendered in other States. To these the defendant pleads nul 
 tiel record, there is no such record as that sued on ; the plain- 
 tiff 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 original panel, is to be called by the Sheriff. K they are 
 out in charge of another case, the Grand Jury may be called 
 to servaibs a Traverse Jury, unless they are engaged in grand 
 , jury busmess. K a jury cannot be made of the original pan- 
 el, the Sheriff is to summon bystanders, who are called talis- 
 fnen, because they have to be sucli men, to have the same qual- 
 ifications as the original venire. 
 
 Seo. 78. Challenges. "When the jurors ^re offered, either 
 party may, before they are sworn, challenge, or object to them. 
 These challenges are either for cause, or peremptory. Chal- 
 lenges for cause are, 1. For defect of qualification. 2. For 
 partiality. 3. For crime. 
 
 1. Defect. A juror must be a citizen, either native or na- 
 turalized. 2. Twenty-one years of age. 3. A householder or 
 freeholder. 
 
 2. Partiality^ If he has formed an opinion in the case, is 
 related to either party within the sixth degree, is the servant of 
 either party, has a suit with one of them, or is interested in the 
 case or question, he may be challenged. These circumstances 
 are principal causes of challenge, because the very fact raises 
 
49 
 
 a presumption of partiality. There are other circumstances 
 which raise a suspicion of undue bias, but do not of tliemselves 
 import partiality or prejudice, such as hostility to one of the 
 parties, or extraordinary intimacy with him, or remote relation- 
 ship, &c. These are grounds of challenge to the favor ; upon 
 which the Court, or two sworn jurors called triers^ try the juror 
 by inquiring whether he is impartial in the case or not. 
 
 3. Crime. "Where the juror has been convicted of an in- 
 famous offence. .The crimes that render a man infamous are 
 specified in our penal code of 1829, C. & N. 327, sec. Tl. 
 
 When a juror is challenged for any of these causes, he is 
 examined on oath as to the truth of the alleged 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 sum- 
 mon a jury. 
 
 Each party in a civil case is allowed two peremptory chal- 
 lenges, which are arbitrary challenges, without assigning any 
 reason for them. 
 
 Seo.. 79. 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 tiy the issue joined 
 between James Hart plaintiff and John Smith defendant, and 
 a true verdict give according to the law and evidence. So help you 
 God." They then kiss the book, and take their seats in the Jwry 
 iox. If a juror is|ponscientiou8ly scrupulous about swearing, he 
 affirms, the Clerk administering the affirmation as follows: 
 "You solemnly affirm that you will well and traly try," &c., as 
 in the oath. He may be willing' to swear, but not on the Gos- 
 pels ; in which case he swears with his right hand uplifted, 
 while the Clerk says, " You appeal to God as the witness 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," &c. 
 When the Clerk calls over the names of the jurors sworn, and 
 they answer, you are then to present your case to them. 
 
 Sec. 80. Presenting the case to tJie Jury. The plaintiff 
 first reads his declaration ; the defendant then reads his plea, 
 the plaintiff his replication, &c., until the pleadings are all read. 
 K the pleadings or any part of them' are lost, that fact must be 
 shown by the testimony of the clerk. Then from the testimony 
 of the attorneys the court will be informed of the contents of" 
 them, and will order them to frame new pleadings of the same 
 tenor as those lost. 1 Swan, 255. 
 4 
 
60 
 
 The pleadings being read, the jury learn what is the issue 
 they are sworn to try. 
 
 ■ The plaintiif then calls up all his witnesses and has them 
 sworn. The oath is as follows : "You solemnly swear that the 
 testimony you shall give this jury in the case on trial between 
 James tlart plaintiff and John Smith defendant, shall be the 
 truth, the whole truth, and nothing but the truth. So help you 
 God." 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 witnesses and 
 have them sworn before the plaintiff commences the examina- 
 tion of his witnesses. But if the rule is not asked, the plain- 
 tiff gets through with the examination of his witnesses before 
 the defendant has his sworn, if the issue is such that the plain- 
 tiff has the opening of the case ; otherwise the defendant first 
 introduces his witnesses. 
 
 Sec. 81. The opening and conclusion. "Whichever party 
 has the affirmative of the issue, usually has the opening of the 
 case ; the onus prohandi^ the hurden of proving what he has 
 affirmed, being on him. If there are two issues, in one of which 
 the plaintiff, and in the other the defendant, has the affirmative, 
 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 dJeclaration, before 
 the defendant is required to sustain his special 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 cir- 
 cumstances of the case to show how much damages he is enti- 
 tled to, he will commonly be entitled to the opening and con- 
 clusion of the case. 
 
 Sec. 82. The examination of witnesses is, 1st. An original 
 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 in- 
 troduced him ; and here the examination of the witnesses mxist 
 regularly close. The Court however may in its discretion 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 h^ admits the 
 introduction of illegal evidence, without' objection, he thereby 
 
51' 
 
 waives the objection, legalizes the evidence, and can never after 
 wards except to it. If the court overrules the objection and admits 
 the testimony, he should except to the opinion of the court ; and 
 according to the strict rules of practice, he should immediately 
 write a hill of exceptions, that is, a written statement of the ques- 
 tion, the objection and the overruling of it; and have it signed 
 and sealed by the jiidge, 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 excepting party, he offers the admission of the 
 testimony as a reason for a new trial, and if a new trial is re- 
 fused him, he states this supposed error of the court in a general 
 bill of exceptions, which will be explained hereafter. If the 
 court sustains, the objection and rejects the ofiered evidence, the 
 counsel offering it may in like manner except. 
 
 EVIDENCE m PAETICULAE. CASES. 
 
 Sec. 83. In an action on a note hy tJie payee against tlie 
 maker. If the defendant has pleaded nan est factum, and the 
 issue 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 
 execution 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 ilot denied is admitted ; and it 
 is a rule of evidence that whatever is admitted by the pleadings 
 need not be proved. As therefore the defendant has not denied 
 the note by the only plea which could be received in denial 
 of it, it stands admitted as described in the declaration ; and 
 when you have read your pleadings to the jury, you have suffi- 
 ciently proved your case ; and if the defendant has any thing to 
 allege against your recovery, he must prove it. 
 
 Sec. 84:. 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 to 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 decisions of 
 the Supreme Court, founded, it is said, on a peculiar Tennessee 
 practice, no other plea but no assignment imposes on the plain- 
 tiff the necessity of proving indorsements. 
 
 Seo. 85. In an action by the indorsee against the indoraer, 
 
53 
 
 the plaintiff is not bound to prove the note, because the defejQ<d^„, 
 ant by indorsing it to the plaintiff has admitted its genuineness ; 
 nor does he have to prove the defendant's indorsement unless 
 the defendant has denied it bj a plea on oath. But the plain- 
 tiff has, to prove that the note was presented to the waker on 
 the day it became due and payment demanded of him and he 
 failed to pay it ; and that he gave the indorser 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 out of the county ; 
 and he must prove that the notice sent by post was directed to 
 the post ofBce at which the defendant resided or usually received 
 his correspondence. Where the indorsee sues the maker and 
 indorser together, he has»to make the same proof against the 
 maker as if hp had sued him 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. 
 
 Sec. 86. In actions on open accounts, the plaintiff has ordi- 
 narily to prove the items in the account by disinterested wit- 
 nesses, as he has to prove his right to recover in other actions ; 
 but there are some accounts which, by our statutes, are prova- 
 ble by a different sort of testimony. 
 
 They are, 1. Accounts from other counties or States. These 
 are sufficiently proved by the plaintiff's affidavit annexed there- 
 to, duly certified by a Justice, 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 issue term, in order that the plaintiff 
 may have notice that he will have to adduce evidence in support 
 of his account. Act 1819, C. & N. 71. 
 
 2. BooJc accounts. By what is called the £ooh debt law 
 (C. & N". isl) the plaintiff, in an action for goods sold or work 
 done, may, when he files his 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 must swear, 1. That the matter in 
 dispute is a book account. 2. That he has no other means of 
 proving the items, he shall then propose to prove by his own 
 path, but by his book, 3. That the book contains a true account 
 of all the dealings or the last settlement of accounts between 
 him and the defendant. 4. That all the articles charged therein 
 and proved by him were, bona fide delivered, or the work per- 
 formed by him. 5. That he has given the defendant all just 
 credits. This oath makes a 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 ^old or work 
 
53 
 
 ^l^& more than two years before the commencement of the suit, 
 vm be thus proved. Executors or administrators may make 
 oath, 1. That they found the book containing the account as 
 8tated^«|H||^t they believe it to be a just and true account. 
 3. Thl^^^^^Low of no witness who can prove the same. i. 
 That t^^^Hvof no other credits. 
 
 The dCTMR,nt, or his executor or administrator, may in like 
 manner prove a set olf, or disprove the account of the plaintiff 
 by other testimony. 
 
 Sec.. 87. Evidence in EjeGtment. The general issue in this 
 action 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 unlawfally -withholding from the plaintiff the premises 
 claimed by him in his declaration, and of this he puts himself 
 on the country." 
 
 Th^ plaintiff must prove, 
 ' 1. That the defendant was in possession of the land described 
 in the declaration at the time the writ issued ; or, if the land 
 was unoccupied, that the defendant was exercising acts of own- 
 ership thereon, or claiming title thereto, or some interest therein. 
 This can only be shown by some witness who knows the bounda: 
 ries of the land sufficiently well to testify to the fact. 
 
 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 Eegister of the District, if it is a Tennessee grant ; or 
 if it is an old North Carolina grant, from the Register's office 
 of the old county that included the land at the time it was 
 registered. 
 
 3. He must prove by witnesses who know the boundaries, 
 that the land described in the grant includes^the land described 
 in the declaration. 
 
 K the plaintiff is the grantee, this evidence will be sufficient. 
 K 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 grantee nor 
 heir, he must regularly deraign his title from the grantee 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 : or by 
 producing the deed, or a copy duly certified by the county Eeg- 
 ister where he claims by deed. And in all cases when he pro- 
 duces a deed, he must be prepared to prove by witnesses that the 
 land described in the deed is included in the boundaries of the 
 grant, or, where it is for the whole of the grant, that the bound- 
 aries are the same. K any deed purports to have been made by 
 an agent, the power of attorney must also be produced. 
 
H 
 
 6. If the plaintiff claims under an execution sale, he m 
 jproduce a copy of the record in the case in which the judgnW 
 was rendered, on which the execution issued, and the Sheriff ]8 
 deed ; and prove that the deed covers the lan<^M^^ This 
 indeed will be sufficient against the defendant ■^^^Bcution, 
 ordinarily, without showing the grant, and deffj^^Hplie title 
 from the grantee to him. ^P^ 
 
 6. If the plaintiff and those under whom he claims havebeen 
 twenty years in undisturbed possession of the land, claiming 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. 
 
 Seo. 88. When the evidence is closed the argument^ com- 
 mences. The party upon which the onus proiandi devolved, 
 is entitled to the opening argument. His argument is then . 
 answered by his opponent, and then he replies. "Whoever is 
 entitled 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 defendant, 
 they must all speak in succession, and then the plaintiff's other 
 attorney concludes. If there are more than two for the plaintiff 
 and more than one for the defendant, they may speak alternately. 
 The order of speaking, however, where the counsel are numer- 
 ous, is subject to the discretion of the com't. 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 con- 
 clusion. 
 
 Counsel are not allowed to state any facts in argument which 
 do not appear i^ the evidence ; nor to communicate private con- 
 versations either in regard to law or fact ; nor to indulge in per- 
 sonalities ; 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 be spoken of as a misapprehension, not as a misre- 
 presentation. If they disagree as to the testimony of a witness, 
 he should be recalled to repeat what he said, or it" may be left to 
 the jury. The court has no right to decide the question: it be- 
 longs exclusively to the jury to determine questions of evidence. 
 
 Sec. 89. Charge of the Court. "When the argument is 
 closed, the court proceeds to charge the jury, by explaining to 
 
65 
 
 thfim the law involved in the case. The court may state what 
 tfie testimony is, for the purpose of enabling the jury to under- 
 stand the law as it applies to the facts ; but cannot say what facts 
 are pr^^Jg the testimony. The court never declares that a 
 particu^^HBis proved, but declares what is the law upon the 
 hypothermic it is proved. The jury are bound to receive the 
 charge o^ne' court as the law of the case; however 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 interfere 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 accord- 
 ing to that rule. " Neither has any right to 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 disre- 
 gard the charge. ~ > 
 
 Sec. 90. Verdict. After receiving the charge of the court, 
 the jury retire, in care of an officer, to consider of their verdict ; 
 and they cannot disperse until they have agreed, without the 
 consent of the parties. In civil cases their consent to the dis- 
 persion of the jury during the ordinary recesses of the court, is 
 always implied, unless objection is made. K, upon consultation, 
 the jury disagree as to what was the law announced 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 disagree as to what was the 
 testimony of a witness, they may return, and have him called 
 in and re-esamine him as to what he testified before : they can- 
 not, without the consent of the parties, 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 juror cannot act upon his own know- 
 ledge, 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 ac- 
 cording to their knowledge or information. They should have 
 the pleadings, and all the documentary evidence read in the case, 
 in their retirement. 
 
 When the plaintiff hears the charge of the court, he may see 
 that he must fail on some point which he can strengthen on an- 
 other trial; and in order to save himself from being estopped 
 by a verdict, he may choose to take a nonsuit. He has a right 
 to do so .before the jury retire. "Whether he can take a nonsuit 
 
56 
 
 before the jury retire a second time, after haviiig-retnrned i^o 
 court for information, is questionable. 
 
 When the jury have unanimously agreed, they must come into 
 court and deliver their verdict : it cannot be receivedJa^^e judge 
 out of court. J^^P 
 
 A verdict is either general or special. A g^WJiferdict is 
 either for the plaintiff or defendant generally ailS'^soluteiy. 
 A special verdict finds the facts of the case, and leaves it to the 
 court to pronounce the law upon those facts. 
 
 Sec. 91. Mistrial. If the jury cannot a^ree at all, either 
 upon a general or specal 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 have been so 
 protracted as to render it very obvious that it' must eventuate in 
 a mistrial, or until the court is about to adjourn. When a mis- 
 trial is made, the cause stands over for trial at the next term ; 
 when the witnesses are bound to attend without being again 
 summoned. /• 
 
 Sec. 92. 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 
 client's prejudice, and the judge may overlook the error, it is 
 important that you should understand enough about the forms 
 of entries to detect any such error, and have it corrected. The 
 first entry at every term of the court is the caption. It is de- 
 signed to show that the court met according to law, and that a. 
 competent judge was present. It constitutes an essential part 
 of every transcript of the record in every case, as without it, it 
 cannot appear that it was decided by a legal ti-ibunal. It is as 
 follows: ,. 
 
 CAPTION OF EEOOED. 
 
 "State of Tennessee, Wilson county, to wit: 
 
 "At a Circuit Court of the Fifth Judicial Circuit begun and 
 held 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 
 our Lord eighteen hundred and fifty-one, and of American Inde- 
 pendence the 76th, present the Honorable Samuel Anderson, 
 Judge of said circuit, were the following proceedings, to wit." 
 
 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 
 
5T 
 
 county eoui-t of Wilson county, showing that at the May term 
 thereof 1S51, said court had appointed the following persons, 
 being good and lawful men of said county, to serve as jurors at 
 the preseirtterm of this court, to wit: A. B. C. D. E. F. G. H, 
 I. J. K. IJf^S, who, being summoned by the sheriff, appeared, 
 and the saioiv. B. C, &c., were duly elected a Grand Jury, of 
 whom the said A. was by the court appointed foreman; and the 
 said Grand Jury, being empannelled, sworn and charged to in- 
 quire for the body 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 7nl debet, 
 and the verdict in your favor : 
 
 ENTRY IN DEBT— Plea Ml delet, found for Plaintiff. 
 "James Hart ^ 
 
 vs. > Debt. 
 
 "John Smith. ) 
 
 " Game the parties by their attorneys, and also a jury of good 
 and 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 one thousand 
 djpllars as the plaintiff has alleged, and they assess the plain- 
 tiff's damages for tjie detention thereof to iifty dollars. It is 
 therefore considered by the court that the plaintiff recover of 
 the defendant the said sum of $1000, and fifty dollars the dam- 
 ages assessed by the jury, and also the costs of this suit." 
 
 Suppose part of the debt has been paid : although it is credited 
 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 plea'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 declared 
 for is found for the plaintiff, the entry runs thus from the aste- 
 risk (*) : 
 
 "The defendant does ow.e to the plaintiff five hundred dollars, 
 a part of the sum of $1000 demanded in the declaration, and 
 they do assess the plaintiff damages for the detention 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 
 
58 
 
 sura 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 plaintiff the 
 residue of said smn of $1000." ^ 
 
 ENTRY ON NIL DEBET— Found for Dlendant. 
 
 " 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 alleged. It is therefore consid- 
 ered by the court that the defendant go hence and recover of the 
 plaintiff and Jacob Jones, his security in the prosecution 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 non-performance of said promises and undertakings, to 
 the sum of one thousand dollars. It is therefore considered by 
 the court that the plaintiff recover of the defendant the said 
 sum of $1000, and also the costs of this suit." 
 
 VERDICT- For Plaintiff 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 plain- 
 tiff 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 said 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 addition to the damages and 
 costs aforesaid.." 
 
 ENTRY IN REPLEVIN— For Plaintiff. 
 
 "That the defendant is guilty of taking and detaining (or 
 simply detaining) said grey horse from the plaintiff, and they 
 assess the plaintiff's damages by reason thereof to fifty dollars. 
 It is therefore considered that the plaintiff recover of the de- 
 fendant said sum of fifty dollars, and also the costs of this suit." 
 
 FOR DEFENDANT IN REPLEVIN. 
 
 " That the defendant is not guilty of taking and detaining 
 the plaintiff's horse, as the plaintiff has alleged, 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 
 
69 
 
 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*^sepurity in the replevin bond, said sum of one thous- 
 and dollars, the value of said horse ; and it is farther consid- 
 ered, that the defendant recover of the plaintiff, the aforesaid 
 sum of twenty dollars damages, and also the costs of this suit." 
 
 m EJECTMElSfT FOE PLAINTIFF. 
 
 i» 
 
 " 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 this 
 suit." 
 
 AGABSrST ONE DEFEISTDANT AND FOE THE OTHEE, 
 ON NIL DEBET. 
 
 " That the defendant, John Smith, does owe unto the plain- 
 tiff the said sum of one thousand dollars, and they assess his 
 damages, by reason of the detention thereof, to fifty dollars ; 
 and that the defendant, John Den, does not owe to the plain- 
 tiff the said sum of one thousand dollars, or any part thereof. 
 It is, therefore, considered by the Court, that the plaintiff re- 
 cover of the said John Smith, the said sum of one thousand 
 dollars, his debt, and the said sum of fifty dollars 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 win be observed that the finding of the Jury always re- 
 sponds 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 respond 
 to all of them. 
 
 SET-OFF. 
 
 Sec. 93. When the defendant's set-off exceeds the plaintiff's 
 debt, he is allowed to recover the balance of the plaintiff, by 
 the Act of 1852, ch. 259, Sec. 2. The following is a suitable 
 form of judgment : 
 
60 
 
 "That the defendant does owe unto the plaintiff, one thous- 
 and dollars, as alledged in the declaration, and they assess the 
 plaintiff's damages to fifty dollars, for the detention thereof; 
 and they further say, that the plaintiff owes to the defendant 
 fifteen hundred dollars, as alleged m his plea of set-off, and they 
 assess the defendant's damage, for the detention thereof, to one 
 hundred dollars. It is, therefore, considered by the Court, that 
 one thousand dollars of the defendant's debt, be set-off against 
 the plaintiff's debt, and that fifty dollars of defendant's dama- 
 ges, be set-off against the damages so assessed for the plaintiff. 
 And it is farther considered, that the defendant recover of the 
 plaintiff five hundred dollars, 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." 
 
 ENTEY 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 ot this 
 suit." 
 
 It does not comport with the plan of this hasty sketch, • to 
 multiply these forms. From the few here given, the~ student 
 may learn how to frame others adapted to his case. 
 
 CHAPTEE lY. 
 
 J PEOCEEDINGS AFTEE VEEDIOT. 
 
 Seo. 9i. 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 roll, 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 : 
 
61 
 
 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 ev- 
 idence is nearly balanced, or if there is but an inconsiderable 
 preponderance against the verdict, the Court should have re- 
 spect 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. K 
 the error was in charging the law in his favor, he cannot ask a 
 new trial on that ground. 
 
 5. Since the trial, the losing 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 Ije 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. He 
 must also introduce the affidavit of the witness by whom he ex- 
 pects to disprove it. 
 
 7. Misbehavior of the jury, as that th^y were influenced by 
 the entertainments, threats or promises of the party for whom 
 they decided, or his fiiends, ; that they received evidence out of 
 Court ; that they cast lots for the verdict ; that they agreed \o 
 put down the amount of daihages each juror was in favor of, 
 and divide the aggregate by 12, and 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 affida- 
 vits of the jurors, or of other disinterested persons, must be 
 adduced to sustain the motion on this ground. 
 
62 
 
 Sec. 95. If the Court sustains the motion, the cause stands 
 for trial again at the next term. When the new trial is grant- 
 ed, 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 circumstance's. But 
 no just reason is perceived for imposing terms, when the ver- 
 dict is set aside, on the other gi'ounds stated, although it is 
 sometimes done. 
 
 Sec. 96. A witness once summoned, is boun<i by statute, to 
 attend from term to term, until discharged by the Court, or by 
 the party who summoned him. A verdict or non-suit, operates 
 as a discharge of the witnesses, and they must be /e-summoned. 
 1 Hum. 329. 
 
 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 erro- 
 neously, 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. 9Y. Bill of Exceptions. If the Court overrules the 
 motion for a new trial, and you intend to appeal to the Supreme 
 Court, your first step is to wi'ite out a hill of excerptions, 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 record. — 
 But the evidence introduced, the charge delivered by the Court 
 to the jury, the decisions of the Court admitting or rejecting 
 evidence, or on challenges of jurors, and other incidental mat- 
 ters, the aflSdavits 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 nev- 
 er taken to the Supreme Court, nor are any of the deeds or other 
 M*riting8 which were 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: 
 
63 
 
 BILL OF EXCEPTIONS. 
 " James Hart \ 
 
 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 t<5 John Den, in the 
 words 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 controversy. 
 The plaintiff objected to this question, but the objection was 
 overruled by the court ; to which the plaintiff excepted. 
 
 " Plaintiff then offered to read the following deed from John 
 Horn to Joseph Hardin : (here insert it) to which defendant 
 objected, 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 
 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 
 trial, that the motion was overruled, to which he excepted, and 
 that his bill of exceptions was ordered to be made a part of the 
 record. But as aU these things are stated in the minutes of the 
 court, there is no necessity for repeating them in the biU. 
 
 ENTRY ON MOTION FOR A NEW TRIAL, &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 th6 testimony of each witness, the attor- 
 neys frequently agree upon a general statement of the facts in 
 the bill of exceptions. It is always necessary that it should ap- 
 pear that the bill contains all the evidence ; otherwise the Su- 
 
64 
 
 preme Court will presume there was eTidence enough to sustain 
 the verdict. 
 
 ' Sec. 98. Motion in arrest of Judgment. K 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 to arrest the judgment. They are all facts which 
 do not appear on 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 declara- 
 tion 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 judg- 
 ment ; 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. 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 reform 
 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 debt on ah obligation to 
 pay bank notes. This, however, was always regarded as sub- 
 stance before, although in truth it is nothing but the veriest form. 
 On the day after the motion, the defendant's attorney must far- 
 nish the plaintiff with a copy of the reasons, in arrest of judg- 
 ment ; and the motion is to be argued 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 pro- 
 pose to amend, and the court may allow him to do so, upon 
 payment of the costs. 
 
 Sec. 99. Repleader and Judgment non obstante verdlcto. 
 If the defendant puts in a plea of confession and avoidance, 
 which is not sufficient, if true, to bar the action, and the plaintiff 
 takes issue on it, this is called an immaterial issue. K the ver- 
 dict is for the plaintiff, he is entitled to judgment, for the plea 
 is not only insufficienf in law, but untrue in fact. If the verdict 
 is for the defendant, he is not entitled to judgment against the 
 plaintiff, for although his plea is fgund ' true, it is nevertheless 
 no bar to the plaintiff's action. The plaintiff in such case may 
 move for judgment non obstante verdicto, notwithstanding 
 the verdict, against the defendant. For the defendant has con- 
 fessed the facts stated in the declaration, and has alleged nothing 
 to avoid the legal consequence of that confession, which is a 
 
65 
 
 judgment for the plaintiff. This judgment notwUManding 
 the verdict, will be final, when the action is debt on a note, 
 bond, or settled account ; and interlocutory, where the interven-, 
 tion of a jury is necessary to ascertain the damages. But if 
 the plea is by way of trayerse, and makes an immaterial issue, 
 the court wul award a repleadm: Thus, if the declaration is 
 against an administrator on the promise of his intestate, and 
 the defendant pleads that he did not promise as alleged, and the 
 plaintiff takes issue thereon : Here the verdict would amount 
 to nothing, and the declaration is not confessed. 
 
 Sec. 100. 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 appeal 
 in the nature of a Writ of Error to the Supreme dotet^ 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 record' 
 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 supe- 
 rior court, simply by application to the former. This therefore 
 is an appeal; but as it answers the peculiar office of a writ of 
 error, which is to correct errors of law appearing in the record, 
 it is an appeal in the nature of a writ of error. Either party is 
 entitled to it in any case, where he is dissatisfied with the judg- 
 ment 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 dam- 
 ages 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 exchange, liquidated 
 account signed by the defendant, or upon an indorsement of any 
 negotiable instrument, then the security must be for the debt, 
 damages, and costs. In all other cases it is for damages and 
 costs only. 
 
 The party may also appeal without giving security, on taking 
 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. 
 
 FOEM OF APPEAL BOND, 
 
 "We, John Smith and John Den, of Wilson county, aeknow^ 
 ledge ourselves indebted to James Hart in the sum of twenty- 
 one 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 
 5 
 
66 
 
 prayed from a judgment rendered against him, in favor 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 proseciiting said appeal." 
 
 ENTKT 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 appeal is 
 granted." 
 
 Sec. 101. After the adjournment of the courl^, the clerk makes 
 out a copy or transcript of the record, beginning with the cap- 
 tion of the minutes of the term at which judgment was rendered, 
 then proceeding to recite " that on the lith day of April, 1851, 
 the following prosecution bond was entered into before the clerk" 
 — copying the bond, then thp writ, the return of the sheriff, the 
 declaration and other pleadings, all the orders of the court, the 
 verdict, and judgment, the motion for a new Ijrial, the biU of 
 exception^, the appeal bond, and all the entries in relation to 
 the case. The subpoenas for witnesses do not constitute a part 
 of the record, nor do affidavits for continuances, nor do any de- 
 positions, 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 certifies that it is a true and 
 perfect copy of the record i^ the case, and affixes the seal of the 
 court. 
 
 The party who appeals is called the a^ellant, and the othei 
 party the a^ellee. 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 Si;iprem§. Court, In that court a 
 particular time is assigned to the business of 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. 
 K the appellant does not do it, the appellee may procure a tran- 
 script and bring it up, and njove 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 appeal, and waved any en-ors the Circuit 
 Court may have committed against him, by neglecting to bring 
 up the record and insist upon a revepal; nevertheless, our statute 
 provides that the court shall look into the record, and shall re-. 
 verse the judgment if they find any substantial errors. If th^ 
 record is not brought up during the term to which the appeal !&• 
 
67 
 
 taken, the appellee may bring it up at the next term, and move 
 an affirmance ; for he, cannot have his execution in the Circuit 
 Court : the appeal deprives that court of all jurisdiction to pro- 
 ceed in any way in the case. It is in the Su,preme Court, and 
 must there be" disposed of before the appellee can have any ad- 
 vantage of his judgment. 
 
 Our statutes provide that when there is a joint judgment 
 against two defendants, one of them jnay appeal alone; and 
 then the judgment remains in full force against the other. Exe- 
 cution may issue against him.; the jurisdiction of the Circuit 
 Court rerhaining as full and complete as toliim 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 satisfied, the Supreme 
 Court, on proper evidence of the fabt; will make such order in 
 the case as will protecthim from paying it again. 
 
 Sec. 102. 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 
 he 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 ireverse 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 a hrief, that is, a brief writ- 
 ten statement of the facts and points ot law on which he relies. 
 The appellant's attorney then reads the record, and opens the 
 argument. He is answered by the appellee ; then the appellant 
 replies, and the argument closes. ' ^e court then proceeds to 
 givfe 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 judg- 
 ment, 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 affil'med, the court renders judgment 
 against the appellant, and his securities in the appeal bond, for 
 the amount of the judgment below, and 12| per cent, interest 
 thereon from the date of the judgment, in tjiose cases where the 
 law requires security for th^ debt. ,. In othgr cases the. judgment 
 is against the appeillant alone for the amount of the judgment ,be- 
 low, and against him and his: security for the costs of the Su- 
 preme Court and the, interest on the judgment from its date, 
 
68 
 
 which is the damages. If the plaintiff below is appellant, judg- 
 ment 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. 
 
 Seo. 103. K no appeal is taken during the term of the court 
 at which the cause is decided, either party may, at any time 
 within a year afterwards, take a transcript 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 actually 
 issues in our practice, but the clerk shall issue a notice to the 
 opposite party to appear and defend the writ of error : this no- 
 tice 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 wiU 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 brief petition, 
 pointing out the errors complained of, and asking a supersedeas. 
 K the judge thinks there are substantial errors, he wiU write 
 his fiat, 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 costs. 
 
 Sec. 104. No appeal or writ of error can be taken on any 
 interlocutory judgment, or any order or judgment of the Circuit 
 Court, that does not make a final disposition of the case. You 
 cannot, for instance, appeal from the decision of the court grant- 
 ing a new trial. You may except to it, and file your bill of -ex- 
 ceptions, 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 biU of exceptions, and take an appeal in error, on the 
 ground that the court ought not to have set aside the first ver- 
 dict; and if the Supreme Court is of that opinion they will 
 reverse the latter judgment, and render judgment in your favor 
 on the first verdict, which was wrongfully set aside. So if a 
 plea in abatement is improperly overruled, and thei defendant 
 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. 
 
 Seo. 105. An appeal or writ of error may be 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 from which the appeal or writ of error 
 
69 
 
 comes, and the appellee or his attorney has five days notice be- 
 fore the cause is taken up for hearing in the Supreme Court. 
 
 Sbo. 106. Diminution of Reoord. K either party finds that 
 the transcript of the record filed is not correct, or not fiill and 
 complete, he may suggest the defect, which is called a diminu- 
 tion of the record, and ask the court for a certiorari directed to 
 the court below, to send up a more perfect record. This sugges- 
 tion must be supported by affidavit stating the defect, unless it 
 is apparent on the face of the record. 
 
 Sec.. 107. Equity jurisdiction in the Circuit Court. The 
 Law_ Eeform, Act 1852, ch. 152, sec. 9, (Pamphlet Acts, 216,) 
 provides that if a suit is brought and the defendant faUs 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 ease of exclusive equity jurisdiction, the court 
 may either order it to be transferred to the Chancery Court, or 
 proceed to try it on principles of equity, referring accounts and 
 facts in controversy to the clerk or other commissioner, accord- 
 ing to chancery practice. 
 
 Sec. 108. 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 when 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 issue. If these objections to 
 verdicts are not made before judgment is entered in the Circuit 
 Court, they are waived. It is also provided in sec. 4, that any 
 defects in matters of form may be rectified and amended in the 
 Supreme Court, if substantial justice requires it, and the amend- 
 ment is in affirmance of the judgment. 
 
 Sec. 109, In the Supreme Court the appellant is plaintiff 
 whether he was plaintiff or defendant in the court below ; and 
 the appellee is defendant. 
 
 ENTKT OF AFFIEMANCE OF JUDGMENT. 
 
 "John Smith ) 
 
 vs. > Appeal in Error. 
 
 " James Hart. ) 
 
 "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 opinion that there is no error in the 
 record. It is therefore considered by the court that the judg- 
 ment of the Circuit Court be affirmed, and that the defendant 
 recover of the plaintiff in error, and John Den, his security in 
 the bond for the prosecution of this appeal, twelve hundred and 
 
70 
 
 fifty dollars, the debt and damages recovered in the court below, 
 and fifty dollars damages, at the rate of 13i per cent, interest, 
 from the date of the judgment, and twenty-five dollars, the 
 costs of the suit in the Circuit Court, and also the Costs of this 
 appeal." 
 
 ENTKY REYERSING JUDGMENT, AND GRANTING A 
 NEW TRIAL. 
 
 " John Smith ) 
 
 vs. > Appeal in Error. 
 
 "James Hart. ) 
 
 " Came the parties by their attorneys, when the matters of law 
 iarising out of the record being argued by the counsel and under- 
 stood by the court, the court is of opinion that there is error 
 in the record. It is therefore considered that the judgment of 
 the Circuit Court be reversed, and the case be remanded to the 
 said court, to be tried again before a jury, and that, the plain- 
 tiff in error recover against 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 ad- 
 journs ; for until it does adjourn, all its judgments are under its 
 control, and may therefore be reconsidered, amended, or wholly 
 changed. At any time after its adjournment, either party may 
 file a copy of the judgment of reversal, and prepare for trial by 
 summoning witnesses, and procuring depositions^ for the wit- 
 nesses will not be bound to attend unless resummoned, having 
 been once 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 sufiicient authority to proceed 
 to another trial. 
 
 In order that the court below may know on what grounds the 
 judgment was reversed, it is the duty of the clerk to send down 
 with the judgment of reversal, a cei'tified copy of the opinion of 
 the Supreme Court, which the law requires to be delivered in 
 writing and filed with the clerk, that any one who desires it may 
 have a copy. The Circuit Court is bound to conform its decisions 
 to the opinion of the Supreme Court in the subsequent trial of 
 the case. 
 
 Seo. 110. . Executions are to issue on the jhdgments of the 
 Supreme Court after its adjournment, returnable to the clerk's 
 office in six months from the date, which is always the fii'st day 
 of the preceding term. I^^'hatever debt, damages, and costs the 
 court may have rendered judgment for, are thus collected. The 
 
71 
 
 Supreme Court sits once a year at Knoxville for East Tennessee, 
 at Nashville for Middle Tennessee, and at Jackson for West Ten- 
 nessee. It thus appears that executions will be returnable in 
 yacation. 
 
 CHAPTER Y. 
 
 EXECUTION IN THE CIEOUIT COUET. 
 
 Seo. 111. If no appeal is taken to the Supreme Court, the 
 •clerk of the Circuit Court proceeds, immediately after that court 
 adjourns, to make out an execution docket. This docket is ruled 
 into columns, one for the names of 'parties, one for the date and 
 amount of the judgment, one for the time when, and the sheriff 
 of the county to which, execution issued, and .another for the 
 return of the sheriff and the receipt of the money, &c. The 
 clerk prepares an execution with the bill of costs, and the date 
 and amount of the judgment on it, and delivers it to the plain- 
 tiff or his 'attorney, or to the sheriff, endorsing thereon the day 
 of its issuance. Each item of. cost is to be set down in words 
 unabbreviated, except the amount, which is in figures. If the 
 costs are put down in an aggregate form, or in abbreviated words, 
 the execution is void as to those items, and the sheriff cannot 
 collect them. 
 
 Sec. 112. There are two kinds of execution in our law, one 
 to gain the possession of specific property, where that is recovered 
 in the suit; the other to collect the money where that is recov- 
 ered. We have seen that there are three actions in which the 
 specific property is recovered ; that is, Ejectment, in which land 
 is recovered ; Detinwe, in which the plaintiff recovers personal 
 property of the defendant ; and Replevin, in which the defend- 
 -ant recovers of the plaintiff personal propei?ty of which the plain- 
 tiff was put into possession by virtue of theoriginal writ. Prior 
 to 1842, we also had an execution called a Capias ad Satisfaoi- 
 enduTU, or briefly Ca. Sa., by which the sheriff was commanded 
 to take the body of the defendant and keep him until he satisfied 
 the debt. In 1842 the Legislature abolished this writ, and with 
 .it the Capias ad JRespondendum, as original process. 
 
 SeO. lis. In ejectment, where the plaintiff recovers the land, 
 the execution is a writ of possession. Under this writ the sherifl' 
 collects the costs of the suit, and puts the plaiutifi' in possession 
 of the land, and turns the defendant off. ' 
 
 .' ■- •• -•« .. ,*.^,>^, ^. 
 
72 
 
 Seo. 114. In detinue, the plaintiff recovers the goods sued 
 for, and damages for the detention of them; and if the goods 
 cannot be had, he recovers the value of them. It is known to 
 be the practice of some clerks, under the sanction oi the Circuit 
 Judges, to enter the judgment for the value thus assessed, to be 
 discharged by the surrender of the properly to the plaintiff. In 
 that case, execution issues for the value, and the damages and 
 costs, the value not to be cpUected if the property is surrendered. 
 But the correct judgment is unquestionably for the property, 
 and for the value, if the property cannot be had. The execu- 
 tion ought, on sound principle, to follow the judgment, and com- 
 mand the sheriff to make the damages and costs out of the de- 
 fendant's property, to take the property recovered out of his 
 possession and deliver it the plaintiff, and if it cannot be had, 
 to make the value thereof, assessed by the jury, out of the de- 
 fendant's property. This operates as a Distringas, by seizing 
 his property, and at once selling it to pay the value of the prop- 
 erty recovered. No doubt he might extricate his property levied 
 on, by sur^-endering to the plaintiff the property recovered. This 
 makes one execution answer the purpose of carrying the judg- 
 ment into complete effect at once, and is believed to be in accord- 
 ance with Tennessee practice. But the Supreme Court say in 
 Wate vs. Dobbs, 8 Hum. 406, that a Distringas must issue be- 
 fore a Fi. Fa. By a Distringas the defendant's property is dis- 
 trained, or taken by the sheriff, to compel him to give up the 
 plaintiff's property. 
 
 Sec. 115. In Keplevin, the judgment against the plaintiff is 
 for the return of the property in dispute, an^ that the plaintiff' 
 recover of him and his security the value of it, if he fails to do 
 so, and the damages for the detention thereof. The execution 
 commands the sheriff to take the property and return it to the 
 defendant, and if it cannot be had, to levy the assessed value of it 
 of the plaintiff's property ; and in either event to collect of the 
 plaintiff the damages assessed against him for the detention of 
 the property. 
 
 Seo. 116. Fieri Facias, or Fi. Fa. This is the only execu- 
 tion known to our law, where money is recovered. It is in the 
 following form : 
 
 "THE STATE OF TENNESSEE. 
 "To the Sheriff of Wilson County. 
 
 " You are hereby commanded, that of the 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 
 endorsed, to satisfy a judgment that James Hart recovered 
 against him in the Circuit Court of Wilson county, at the August 
 
73 
 
 term, 1851 ; and have you said moneys, together with this writ, 
 at said court, to be held at the court-house in Lebanon, in said 
 county, on the first Monday in December next. Witness, Wil- 
 liam 5art, clerk of said court, at office in Lebanon. This first 
 Monday in August, a. d. 1861. W. HAET, Clerk." 
 
 This execution may be issued to any county in the State, where 
 the plaintifi" may suppose property belonging to the defendant 
 may be found. K it is sent by mail, the plaintifi" should always 
 have evidence that he mailed it. If he delivers it himself to 
 the sherifl", he should take his receipt, or at least have evidence 
 of the fact, so that he can prove it, should the sheriff fail to re- 
 turn it. The sheriff is to indorse on it the day of its delivery. 
 
 Sec. 117. 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 in land. All the personal prop- 
 erty which the defendant had at the date of the execution is 
 liable to it. The date of the writ is called its teste, and it is not 
 the date of its issuance, as indorsed on it by the clerk, but the 
 first day of the preceding term, which is its date on its face. 
 This binding of the property from the teste of the writ is called 
 its lien. And although the defendant may have sold the prop- 
 erty since the teste of the Fi. Fa., it may stiU be levied on as 
 his. K the judgment is shown to have been rendered after the 
 first day of the term, the execution will only be a lien from tliat 
 day, and from the first hour at which the court is proved by the 
 record to have met on that day. If two executions from the 
 same court are tested 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 has the preference, without 
 regard to priority of teste. 
 
 There is some personal properly that cannot be levied on, such 
 as notes, bank stocks, and other stocks or shares in corporations, 
 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. 118. A levy on personal property can only be by taking it 
 into the officer's possession, or having it under his control. 
 Leaving it a reasonable time with the defendant does not vitiate 
 the levy. After the officer takes it, he. is bound at his peril to 
 keep it safely until the day of sale, unless the defendant ^ves 
 him a delivery hand 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 be forfdted, 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 5 and they are not allowed the privilege of giving an- 
 other delivery bond. If the terto of the court to which he is 
 bound to return the execution arrives before he has time to levy, 
 after the forfeiture of the delivery bond, he returns, the bond with 
 the execution, and the clerk issues an execution against the de- 
 fendant 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. 119. There is certain property exempt from execution, 
 for the benefit of the poor and their families, all which may be 
 seen enumerated in an act passed in the session of 1855-6. 
 
 Sec. 120. Qamishment. K the sheriff can find no property, 
 but can find a debtor to 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 defend- 
 ant. If he does not appear, judgment nisi is taken against him 
 for the whole amount of ttie debt ; a Soire facias issues return- 
 able 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 forso mucl*as wiU be sufficient to satisfy 
 the execution. 
 
 Sec. 121. If personal property sufficient to satisfy the execu- 
 tion cannot be found, the sheriff must levy on defendant's land, 
 which he does, not by taking it into possession, or even by see- 
 ing 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, withoiit endeavoring 
 to exhatiBt the personalty of the others. If one is security 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, un- 
 less it appears in the execution. 
 
 Seo. 122. Advertisement, Sale, and Beturn. After levying, 
 the next duty of the sheriff is to give notice of the time and plafce 
 •of sale. This he does by advertising at four public places, one 
 to be the court-house, forty days, if it be land, twenty days if ne- 
 groes, and ten days for any other personal property. In case of 
 land or negroes, the defendant may, by written notice filed with 
 
75 
 
 the clerk before he is'sues execution, or with the sheriff at the 
 time of leYying, require the sale to be adyertised in such news- 
 paper as he may select. If the defebdant is in'posseBsion of the 
 land, twenty days written notice is to be given hiih. 
 
 At the appointed time and place, the sheriff must sell the prop- 
 erty between ten o'clock and, sunset, to the highest bidder. If 
 it is personal property he delivers it, when sold, to the purchaser. 
 If it is real property, he can only make him a deed for it, and if 
 the defendant refuses to give it up, the purchaser will be obliged 
 to bring ah action of ejectment to obtain possession. 
 
 He is next to return the execution, by writing on it a brief 
 history, of what he has donei: as, 1. The levy^ describing the 
 property. 2. The advertisement. 3., The sale,, showing who 
 ,became.'the purchaser. With this indorsement, he must return 
 the writ on the first day of the next term of the court, apid must 
 then pay the money either to the plaintiff or his" attorney, 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 retuTUS the fact, and a Fen- 
 <?ifo'ow» ^asp^jwas issues, which commands him to proceed and 
 Bell the property. , This is not necessary in ,the case of personal 
 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 
 ])ay the proceeds to the plaintiff. In any caBe^ if the property 
 ■sells for more than enough to satisfy the execution, he must pay 
 over the excess to the defendant. For the sale of real property, 
 ■a Venditioni Exponas is always neces^ry. 
 
 If the sheriff cannot find any property, he returns "no prop- 
 erty to be found in my county," called the return of ntsZ^a %dna. 
 On this return, the plaintiff may at any time afterwards have an 
 alias execution, and if that is returned ntilla -Sotco;, he. may 
 ■have a pliwibs, and so on to infinity. And it is no matter' how 
 miuy terms ekpse between the issuance of one execution and 
 another,, there is h'O discontinuance as in original ptociess ; but 
 he may have his execution at any tiritie. 
 
 S?o.'123. If the plaintiff dies before execution is'sues,, his 
 persoUai representative, that is, his executor 6r administrator, 
 in personal actions, may haye a Stiife' Facias against the' defend- 
 ant to sfao'^ cause why he should not have execution. K the 
 plaintiff in ejectment dies, the heir may have a Scire Fabias. 
 If the. defendant dies before exbctition, the plaintiff may have a 
 Scire Facias against his representative to show cause why'exe- 
 cution should riot issue against the estate of the "deceased. But 
 although the dfe^ridant inay have died before the execution actu- 
 
i.^" 
 
 ally issued, yet if it was after its teste,^ which is^ays the first 
 day of the preceding term, it may be levied on his'^operty, 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. As our law allows, 
 and indeed requires suits to be revived in the name of the re- 
 presentative 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. 
 
 K no execution issued within a year and a day from the 
 date of the judgment, it could not issue without a Sdre 
 Facias against defendant, prior to the Act of 1849, Chap. 37. 
 By that Act, the execution may issue at any time without a 
 Scire Facias. But if ten years have elapsed since the date of 
 the judgment, the representative of the deceased plaintiff must 
 obtain an order of Court for a Sdre Facias. This he does by 
 motion, supported by affidavit, that the plaintiff is dead, that 
 he is representative, and that judgment is, as he believes, un- 
 satisfied, K twenty years have elapsed since the date of the 
 judgment, he niust also give notice to the defendant, or his rep- 
 resentative, of his intention to make the motion. 2, Swan, 74. 
 
 Seo. 124, Bedemption. The debtor has a right to redeem 
 the land sold, at any time within two years after the sale, by 
 
 i)aying, or offering to pay the purchaser, the sum bid by bim 
 or it, and six per cent, interest thereon. If, however, the pur- 
 chaser was a judgment creditor, he may within twenty days af- 
 ter 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 debt- 
 or 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 he lives out of the county where the 
 purchase was made, or absents himself from his usual place of 
 residence ; then he must pay it to the Circuit Court of the 
 county. When the debtor thus redeems the land, the purcha- 
 ser is bound to re-convey it to him, if it has been conveyed to 
 him by the Sheriff. And if he refiises to do so, he must file a 
 bill in the Chancery Court to compel him. 
 
 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 
 
77 
 
 bid, or crediting him with ten per cent, on his (the redeeming 
 creditor's) debt. When he thus redeems it, he has a right to 
 advance on it the amount of his debt, just as the fli-st purcha- 
 ser might advance his. 
 
 Any other creditor may redeem of the last redeeming credit- 
 or, by paying him the amount he paid or advanced, and credit- 
 ing tiie defendant with ten per cent, on the original bid. Thus 
 the land is made a ftind for two years, for the payment of debts ; 
 and at any time within the two years, the defendant may re- 
 deem it of any creditor, who may have redeemed it, by paying 
 him what he advanced and interest. 
 
 Sec. 125. 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. 
 
 SUMMAEY JUDGMENTS. 
 
 Sec. 126. By a,summary judgment, is meant one which is 
 rendered on motion, without any process to bring the defend- 
 ant 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, re- 
 quires it. Nor is the intervention of a jury necessary to de- 
 cide the questions of fact involved in the motion, except where 
 the statute requires it. Under this head, we will notice the 
 proceedings against the Sheriff, on the return of executions. 
 
 Sec. 127. fiiere are four cases in which he is liable to a sum- 
 mary judgment, where an execution has been delivered to him: 
 
 1. When he fails to return the execution. 
 
 2. When he fails to make a sufficient return. 
 
 8. When he returns it satisfied, in whole or in part, and fails 
 to pay over the money collected. 
 
 4. When he makes a false return. Act 1835, C. and N. 800. 
 
 A sujicient 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 plain- 
 tiff or his Attorney, or the Clerk, this motion may always be 
 made against him on the second day of the term. It may be 
 ,made, however, on any subsequent day of the term, or at any 
 
78. 
 
 subsequent term, although an alias execution may have iss,ued. 
 If it is made at the return term, no notice is necessary, but 
 if at a subsequent term, or against the Sheriff of another county,, 
 ten days notice must b6 given to the Sheriff. The motion 
 is made, against the, Sheriff and hig securities in his ofjoial 
 bond.*.' And the plaintiff must always produce a copy of the, 
 bond, certified by the Oleri: of the County Court, to Show who 
 are the securities, and that the condition of the bond shpws 
 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 w.as issued by the Clerk, and was delivered to the 
 Sheriff, a^d has not been returned. Thes Clerk and his execu- 
 tion docket, will prpve the first and last points ; and thje Sher- 
 ifl's receipt, o# any other , sufficient testimony, will prove the 
 delivery. If his receipt is offered, you must prove His signa- 
 ture to it. 
 
 If the motion, is made for an insufficient return, or for not 
 paying over the mpuey collected, the production of the execu-. 
 tion and the return, and the evidence of the Clerk, that the 
 money lias not been paid into his office, will be sufficient. 
 
 If the motion is for a false return, the plaintiff produces, the 
 execution with the return; and it must appear from the face of 
 the return, that it is iaJse. As if the return is " levied on ten 
 mules, not sold for want of tinie," and it appears from the date, 
 of the levy, that there was , time. It cannot be sKown by ex- 
 trinsiye evidence, that the return is false. This can only be 
 done in an action on the case for a falge return. 1 Sneed, 437.. 
 
 Sec. 127. The entry of the judgment in these summary pro- 
 ceedings, should show all the facts that are necessary to war- 
 rant the; judgment. 
 
 EOEM OF SUMMARY JUDGMENT. 
 " James Hart, "j 
 
 Winfield Scott; and r ,, ,. 
 James Madison. J ^°*^«^- 
 
 Came, the plaintiff, by his Attorney, and on his motion, it 
 appearing, 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 $12,500, 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 his hands, and pay over to the person entitled thereto, all 
 moneys collected by virtue of his office ; it appearing also that 
 
79. 
 
 on the 1st day of August, 1851, a judgment wag. r.eco¥ered in 
 this Court by the plain,tiff, James Hart, against John Smith, 
 for the sum of one thousand and fifty dollars, deht and dama- 
 ges, and twenty dollars Qosts, on whieh judgment an execution 
 issued from this Court, on the Ist day of September, 1851, 
 directed to the Sheriff of Wilson county, commanding him to 
 make the said sums of one thousand and fiity doUars, debt and 
 damages, and twenty dollars costs, of the sai(| John Smith's prop- 
 erty, and have,the sa<me at the presenj; tqrin, of this Coart ; it 
 appearing also that said executiooa was deliYered to the defend- 
 ant, Winfield Scott, Sheriff of said county, on theday and year 
 last aforesaid, and *that he has wholly failed to return ;Baid ex- ' 
 ecution (or, *that he has returried said execution with only the 
 endorsement thereon, " not s^ta,sfied," or,, *thathe has returned 
 said execution satisfied, and has wholly failed and refused to 
 pay over said, moneys, or any part thereof, or, *that he has re- 
 turned said exepution, "levied on ten naules, 10th July, 1865, 
 not sold for want of tirae," and it appears to the Court, from 
 the date of the levy, that there was time to advertise and sell 
 said property). 
 
 It is, therefore, considered by the Court, that the plaintiff re- 
 cover of the defendants, the aforesaid sum of one thousand and 
 fifty dollars, debt and damages, and also one hundred' and thirty 
 one doUars and twenty-five cents, being 12^ per cent, damages 
 thereon, and also sixty-three dollars, interest on said debt and 
 damages, and also twenty-dollars, the costs aforesaid, amount- 
 ing in .all, to the sum of one thousand two hundred and sixty- 
 four dollars and twenty-five cents, and also the costs of this 
 motion." 
 
 On this judgment an execution issues to the coroner, and if 
 he is in default, he and his securities are in like manner liable 
 to summary judgment. 
 
 Seo. 128. When the judgment is rendered against the Sher- 
 iff and his securities, for not returning an execution, or for an 
 insufficient return, and he has paid it, he may have an execu- 
 tion on the original judgment, in favor of Hart, the plaintiff," 
 against Smith, the defendant. So if the Sheriff's securities 
 have paid the judgrdent, they may have executipn, on the origi- 
 nal judgment. Act of 1850, ch. 145. 
 
 Sec. 129. Motion against Deputy.. If a Deputy has col- 
 lected 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 agai^nst the Sheriff and his se- 
 curities, for the Deputy's default, just as if it were the default 
 of the Sheriff himself, , : In that case, the Sheriff, may have 
 
80 
 
 judgment, by motion against the Deputy and his securities, on 
 giving him ten days notice. Act 1829, ch. 41. 
 
 Seo. 130, On Indemnity Bond. When the Sheriff takes 
 a bond from the plaintiff, to indemnify him for levying on dis- 
 puted property, and a suit is brought against him by the claim- 
 ant of the property, and damages recovered, he, may, on mo- 
 tion, recover 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 bond, as the de- 
 fendants' have no notice, and no opportunity to plead non est 
 factum. 1825, 0. and N. 18. 
 
 Sec. 131. As in this last case, the execution levied on the 
 disputed property, has been returned 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 de- 
 fendant, and the plaintiff has had it to pay for, it is evidently 
 proper that he should have another execution. He is, therefore, 
 allowed, on making affidavit before the Clerk, of this recovery 
 against him, to have a Scire Facias against the defendant, 
 to shew cause why another execution should not issue. Act 
 1848, ch. 191. 
 
 SUMMAEY JUDGMENTS BY SUEETIES AND ENDOR- 
 SEES. 
 
 Sec. 132- Where a judgment is recovered against a surety 
 in any note, bond, obligation or recognizance, whether it be for 
 money, or for the prosecution of a suit, or a certiorari, or for 
 the fine and cost, or for the appearance of a defendant, the surety 
 may immediately have judgment, on motion, against the 
 principal, for the amount of the judgment against him, in- 
 cluding costs. He need not wait untO he has paid the judg- 
 ment. Nor does it make any odds that the judgment is against 
 the principal, jointly with himself. And he may have hia 
 judgment in any other court, 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 
 another Court, he must produce a certified copy of the record 
 of the judgment against him. 
 
 If it appears on the note or 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 prepared 
 to prove before them that he was surety. Act 1809, C. and N. 
 653 ; 1850, ch. 163. 
 
 Accommodation indorsers, that is, those who indorse notes, 
 
81 
 
 ■or Mils of exchange, to accommodate the maker OT other party, 
 are entitled to judgment, by motion, against the party for 
 whose accommodation they endorsed the paper, whenever a 
 judgment is obtained against them. A jtiry^must be empan- 
 nelled, to ascertain whether the party applying for jhdgment, 
 was accommodation indofser. Act 1850, ch. 38. 
 . In neither of these eases does the surety or endorser have to 
 give notice to the' principal of his intended motion. It is 
 deemed 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 keeps his eye upon the debt, and knows 
 what his creditor is doing with it ; especially will he know that 
 he is prosecuting a suit againat.his. surety. 
 
 Sec. 133. When there are two securities, and judgment is 
 obtained against only one of them, he may have summary 
 judgment against the other for his half of the debt. Or if judg- 
 ment ig 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. 
 
 Sec. 134. There are other cases of summary judgments, which 
 we cannot notice. We will give the form of a judgment by 'a 
 security against the principal, and leave the subject. 
 
 JUDGMENT ON MOTION", SECUEITY vs. PEINCIPAL. 
 
 John Smith ^ 
 
 vs. > Motion. 
 
 Jacob Eogers, ) 
 
 Came the plaintiff by his attorney, and on his motion, it ap- 
 pearing^to the court that, on the 1st day of January, 1860, the 
 plaintiff and the defendant, by their note of that date, promised 
 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 recovered a judgment thereon in this court 
 against the plaintiff and defendant, Oi]('the~10th day of August, 
 1851, for one thousand and fifty doUar^, debt and damages, and 
 twenty-five dollars costs ; and the plaiiatiff alleging that he was 
 the defendant's surety in- said note, and that fact not appearing 
 on the face of the nofce, there canie a jury of good and lawful 
 men, to wit; A. B.C. and C, who, being elected, tried and 
 sworn the trath'to speak on said allegation of suretyship, upon 
 their oaths do- say, that ;thfe plaintiff was the defendant's surety 
 in said note. It is therefore considered by the court, that the 
 plaintiff recover of the defendant the said sum of one*thousand 
 6 
 
82 
 
 and fifty dollars, debt and damages, and twenty-five dollars, the 
 costs aforesaid, and also the costs of this motion. 
 
 Seo. 135. Since it is provided that when a surely 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 thereby 
 compel the Sherifi" to levy the execution, first on the principal's 
 property, it will not often be necessary for the surety to take a 
 summary judgment against the principal, except when he is 
 sued alone. 
 
 CHAPTEE VI. 
 
 MISCELLANEOUS MATTEES. 
 
 Sec. 136. Writ of M-ror, coram noiis, and supersedeas. It 
 sometimes happens that , a court renders a judgment 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 commenced ; the defend- 
 ant was, at the commencement of the suit, a married woman, 
 and her husband was not sued with her. In these cases, 
 the representative of the deceased party, or the opposite party, 
 or the husband of the wife, may have a writ of error coram no- 
 Ms, by petition to the Circuit Court which rendered the judg- 
 ment, 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 superse- 
 deas to the Sheriff to stop the execution, and a notice to the 
 other party to appear, on petitioner giving bond and security 
 for costs and damages. 
 
 At the next term — the term at which the plaintiff has notice 
 to appear — the petitioner files an assignment of errors, which 
 is in the nature of a declaration, setting forth the facts stated in 
 his petition. To this the plaintiff may demur, or plead by way 
 of traverse, or confession and avoidance. The petitioner may 
 reply in the same way, and so the pleadings regularly progress 
 to an issue, to be tried by the court or jury as in other cases. 
 K the issue is decided in favor of the petitioner, the judgment 
 is reversed; if against him, it is affirmed. — 1 Swan, 341. 
 
 Seo. 137. In the cases aboved named, the judgment is void, 
 
83 
 
 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 extended this reme- 
 dy. For example, where a final judgment by default has beea 
 taken against a party, and -he shows by his petition a satisfac- 
 tory reason for not having appeared to defend the suit. 
 
 So in the case of summary judgments, without notice to the 
 defendant, and in his absence. For instance, a security obtains 
 euch judgment against the principal, and the fact may be that 
 he is not security, or if he is, the principal has famished him 
 with ftinds to pay the debt. He may petition the Judge of the 
 Circuit Court to admit his defence, and to grant a supersedeas 
 to stop the running of execution until the matter is investigated. 
 The Judge directs a fiat 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 next term the court causes an 
 issue to be made up to try the alleged fact, unless the petition is 
 on motion of the plaintiff dismissed. The issue will stand for 
 trial at the succeeding term. 
 
 The 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 original 
 case, the court may try them in this proceeding to annul the 
 judgment. This will comprehend all the facts involved in a mo- 
 tion against the Sheriff and his sureties, and all that are in- 
 volved in a motion by a security against his principal, except 
 the fact of suretyship. But the court may take the verdict of a 
 jury on any of 'these contested facts. 
 
 The writ of error, coram noiis, 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 noTlie, 
 for instance, on the ground that he has since discovered facts 
 which would have been sufficient to secure the judgment in his 
 favor. 
 
 This proceeding must be also distinguished from the 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 cor- 
 rect some error which appears on the face of the record. Thus, 
 suppose a judgment by default is rendered against a man, and 
 it does not appear that process was ever served on him ; the 
 summons is returned not executed. This would be manifest 
 error appearing on the record, and he would obtain a writ of 
 error from the Supreme Court, and have the judgment reversed. 
 
84 
 
 But if the summons was 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 noUs, on the ground 
 of some alleged fact, by which it would appear that the judg- 
 ment should not have been rendered. 
 
 Seo. 138. Proceedings to quash Execution. K the defend- 
 ant has paid off the judgment, or it is otherwise settled between 
 the parties, or if for any reason the execution is wrongfully is- 
 sued, 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 praying 
 that the execution be superseded and quashed. The Judge 
 writes on the petition an order, called a fiat, 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 nohis. If the 
 fapts alleged are found for the petitioner, the execution is 
 quashed. 
 
 Seo. 139. 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, to hold 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 improvements, 
 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. K he provided 
 j,.for her by will, and she has not, in twelve months after the pro- 
 bata thereof, dissented from it in the County Court, her right of 
 dower is barred. So there are other cases in which her right 
 bf dower will be barred or forfeited. 
 
 She obtains her dower by either a written or verbal applica- 
 tion to the Circuit, County or Chancery Com-t of the county in 
 which her husband last resided. She must give five days writ- 
 ten notice to the heirs or legatees who reside in the State, and 
 to the executor or administrator, of her intended application, 
 specifying the day and court in which she will apply. Heirs 
 j-nd legatees who reside out of the State are not entitled to no- 
 tice, 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 aggrieved by the allotment of her dower. If any of the 
 heirs are minors, their guardians should have notice*, 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 
 
85 
 
 will be evidence 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, tlie application is made, 
 either verbally, according to the act of 1850, ch. 77, or by peti- 
 tion, according to the old acts, (0. & 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 intestate, 
 or if he left a will, that she dissented from it in the County 
 Court within twelve months after its probate ; or if she did not, 
 that the personal estate left her by the will has been tiaken to 
 pay the debts of the deceased. 2d: It must particularly specify 
 the real estate of which he died possessed, so that the commis- 
 sioners may know of what land they are to assign her 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 verbally, she ought to show the same 
 facts to the court, and they should appear in the order appoint- • 
 ing 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 show that 
 she was not the lawful wife of the deceased ; that she had by 
 marriage contract, or a long acquiescence in his will, or by di- 
 vorce, barred or forfeited her right to dower. 
 
 The court proceeds summarily to hear and determine the ap • 
 plication at the first term. On motion of either party it may 
 be submitted to a jury to decide the disputed questions of fact. 
 K 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 commis- 
 siogers to aUot to the widow her dower. If the cbunty surveyor 
 is connected with the parties, the court appoints another sur- 
 veyor. Within forty days after the court adjourns, the Clerk 
 delivers to the surveyor a copy of the order, and he, notifies to 
 the other commissioners when and where they shall proceed to 
 perform the duty assigned them. They are to take an oath be- 
 fore a judge or, justice, or the county surveyor or deputy, for 
 the faithful anil true performance of their duty ; and then they 
 proceed to lay ofi" the dower. If any of the land lie in another 
 county, and it so appears in the order, they are to examine thajf 
 and take it into consideration in making the allotment. They are 
 to make out their report, containing a plat of the dower and de- 
 scribing 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 it, and re-commit it to the same commissioners or 
 
86 
 
 appoint others. If the report is confirmed by ttie conrt, it is 
 to be spread upon the records. — Act 1850, ch. 77, (N. & G. 
 Dower.) 
 
 rOEM OF PETITION" FOR DOWEK. 
 
 TO THE OIEOUIT OOUET 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 es- 
 tate. At the time of his death he was seized in fee-, and pos- 
 sessed of one tract of land lying in said county, on Spring 
 Creek, and bounded as follows : Beginning at a white oak on 
 the bank of said creek ; 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. BLACKSTOJSTE, Att'y. 
 
 NOTICE TO THE HEIR AND ADMINISTRATOR. 
 
 Messrs. James Hari and John Smith : — On the fourth day 
 of August next, I will apply to the Circuit Court of "W"ilBon 
 County, at Lebanon, to assign dower to me out of the real es- 
 tate of John Hart, deceased. JANE HART. 
 July 1, 1852. 
 
 Return by the Sheriff: — " Delivered a copy of the within no- 
 tice to James Hart, and another to John Smith. 
 
 July lO; 185a. W. SCOTT, Sh'ff." 
 
 ANSWER TO THE PETITION. 
 
 Jane Hart, \ 
 
 vs. V Petition for Dower. Answer. 
 
 James Hart and 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, Att'y for Def'ts. 
 And the plaintiff avers that the said John Hart was not in- 
 sane, and she affirms the truth and sufficiency of her petition. 
 
 BLACKSTONE, Att'y. 
 
87 
 
 DECREE "WHERE THEEE HAS BEEN NO ANSWER. " 
 
 Jane Hart, \ 
 
 vs. > Petition for Dower. 
 
 James Hart and John Smith, ) 
 
 This cause came on to be heard on the petition, when it ap- 
 peared that John Hart died on the let day of May, 1850, seized 
 in fee of a tract of land lying on-Spring Creek, in Wilson Conn- 
 ty, 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 lOth July, 1862, she gave written 
 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 dower on 
 this day. It is ordered by the court, that John Long and Hi- 
 ram Short, freeholders, (or householders,) of 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 re- 
 port to the next term of this court. 
 
 DECREE ON THE REPORT. 
 
 Jane Hart, ) 
 
 vs. > Petition for Dower. 
 
 James Hart and John Smith. ) 
 
 The Commissioners appointed at the last term to allot to the 
 petitioner her dower in the land of John Hart, deceased, re- 
 turned the following report : [Here insert it — see N. and C. 750,]' 
 which not being excepted to, is in all things confirmed. And 
 it is fiirther ordered that the petitioner pay the costs of this pe- 
 tition, for which execution may issue. 
 
 Sec. 140. 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 pe- 
 tition will be presented, or else they must advertise three times 
 in some newspaper printed in the State, their intention to pre- 
 sent such petition, three months before it is presented. This 
 advertisement will be good notice to every body concerned in 
 the land. At the time designated in th6 notice or advertise- 
 ment, the petition is presented. The defendants may answer 
 the petition ; and if there appears to be any doubt about the^ 
 
88 
 
 petitioner's right io 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. K the court is satisfied- that parti- 
 tion should be made, five commissioners are appointed by the 
 court, who are to proceed and divide the lands between the par- 
 tils in proportions of equal value ; and in order to do complete 
 justice, they may charge a more valuable dividend with such 
 sums to be paid by the owner thereof to the owner of the divi- 
 dend of inferior value, as will make his share equal. The com- 
 missioners appointed by the court may divide all the lands in 
 the State which are set out in the petition, and may allot to dif- 
 ferent parties whole tracts in different countiesj instead of divid- 
 ing each tract. 
 
 They return their report to the next term of the court under 
 seal, showing 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 Eegister'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. 141. Partition of slaves and, other personalty may 
 also be obtained by any one entitled thereto, by petition to the 
 County, Circuit or Chancery Court. This petition is to be 
 served on the executor, administrator, or other distributees and 
 legatees, five days before the court. It may be answered and 
 the right contested. If it is not, the court wiU appoint suitable 
 persons commissioners to make the partition. But distributees 
 or legatees can file their bill only in the Chancery Court to ob- 
 tain an account of the estate against the administrator or exec- 
 utor, and then have a division. 6 Hum. 446. 
 
 Sec. 142. Sale for Partition. Where real estate belong- 
 ing 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 Cotirt, against the others, have the estate 
 sold, or all may join in a petition and have a decree of sale. 
 If there are minors, they are 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 equity. 
 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 
 Sherifi" 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 i;egular steps are 
 
waived, amd 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 
 wotdd 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 afBrms 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 sxich other way as 
 shall be deemed for the best interest of the minor. — C. & N. 
 Partition, Meigs' Digest, Partition, 1850, ch. 185. 
 
 Sec. 143. Sale to pay debts, "Where an administrator or 
 executor has exhausted the personal estate in the payment of 
 debts, and there are still unpaid debts against the estate, he 
 may file a petition against the heirs in the County, Circuit or 
 Chancery Court, of any counfrf where any real estate of the de- 
 ceased 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 usually is, to save 
 oosts; He has a right, however, to answer and show that the 
 personal estate has not been exhausted, or that there are no re- 
 maining 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 hejr 
 is properly brought before the court, and either answers or co n- 
 fesses' the bill, is to refer it to the Clerk to ascertain and report, 
 1st, whether or not the personal estate is exhausted, and 3d, 
 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 (jther commissioner the 
 court sees fit to appoint; and upon his report of a sale, if there, 
 appears no objection to it, it is affirmed, and the proceeds appro-' 
 priated 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 payment of his own and other debts, where the personal es- 
 tate is exhausted. The bill should be filed in behalf of himself 
 and all other creditors, so that there may not be a multitude of 
 bills to exhaust the reaj. estate with costs. The proceeds of the 
 
90 
 
 land, when sold,, shoidd be divided among all the creditors. — 1 
 Meigs' Digest, 34. N. & C. 82—4. 
 
 Sec. 144. 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 cannof be made 
 among the legatees and 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 causes 
 alleged for the sale ; and on his report the court usually acts. — 
 G. & N. 82—3. 
 
 In this petition, the next of kin of the deceased must be made 
 defendants, so that they can have an opportunity of contesting 
 the necessity alleged for the sale, according to a decision of the 
 Supreme Court at Nashville, 1855 — 6. 
 
 A guardian also may, by petition to either of said courts, sell 
 the ward's slaves or lands to pay his debts. — C. & IS. 370, 230, 
 act 1850, ch. 185. 
 
 DIVOKCE. 
 
 Sec. 145. There are ten causes of divorce from the bonds of 
 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 absence of 
 either party for two years, without reasonable cause. 5. Con- 
 viction of a penitentiary felony ; (act of 1842.) 6. Malicious 
 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 intolera- 
 ble, and forces her to withdraw, or by abandoning her, or tm'n,- 
 ing her out of doors and refusing to provide for her, or any 
 other cruel and inhuman treatment ; (1835, sec. 19, and 1842, 
 oh. 133, sec. 1.) 8. Where either is absent two years, and the 
 other marries on an apparantly well grounded report of the ab- 
 sentee's death. The latter may, on returning, either have a di- 
 vorce, or be reinstated in his or her marital rights ; (1835, sec. 
 8.) 9. Adultery of either party. 10. Where the husband re- 
 moves 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 
 
91 
 
 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 else- 
 where. 
 
 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. 146. 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 
 plaintifi" may desire, as alimony, or a part of the husband's es- 
 tate, if the wife be plaintiff, or a change of her name, or cus- 
 tody of the children, or an injunction to restrain the defendant 
 from making way with his property. To this bill an aflBdavit 
 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 collusion with 
 the defendant, but in sincerity and truth for the causes stated in 
 the biU. A. prosecution bond has then to be given for costs and 
 damages. Then the Clerk issues a summons 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 hearing at the return term. (1842, 
 ch. 137, sec. 3.) The defendant may answer the petition on 
 oath, admitting or denying the facts. K he does not answer, it 
 is taken for confessed. But a confession does not in this case, 
 as it does in all others, dispense 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 ; whether confessed or denied. 
 
 The evidence may either be by depositions or the viva voce 
 testimony of witnesses. The plaintiff should always have his 
 vritnesses 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 aflBdavit 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 the prayer of the bill, and 
 requiring the defendant to appear and answer it at the next 
 .Jterm, or it will be taken for confessed. When so taken for con- 
 fessed, it is to be heard as if process had been served. 
 
 Sec. 147. Decree. If the biU is sustained, the court de- 
 crees a dissolution of the bonds of matrimony. K the wife is 
 
92 
 
 plaintiff, and asks alimony, it is referred to the Glerk 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 minom 
 children are disposed of as the court thinks best. The court is 
 not bound, as in law cases, to decree the costs against the losing 
 party, but may order either party to pay the whole or any part 
 of the costs, as may be judged best. 
 
 Seo. 148. Gonsequenoes of Divorce. The parties are re- 
 stored to the rights of single persons, except that the defendant; 
 divorced for adultery shall not marry the person with whom the 
 adultery was committed, during the plaintiff's life. Kthe wife 
 is plaintiff, she is restored to the absolute dominion and enjoy- 
 ment of all her real estate, and all the personal egtate 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 divorce, all his 
 rights to any real or personal estate, or choses in action, which 
 the wife was entitled to at the time of the divorce, remain. — C. 
 & ISr. 260, sec. 11—12. 
 
 Seo. 149. AttaoTiment in Equity. A creditor, whether a 
 citizen of this State or not, may file an attachment bill against 
 any non-resident or absconding debtor who has any property in 
 the State, whether legal or equitable, or has any debts owing 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 pro- 
 secute the bill with effect. See sec. 7. 
 
 The clerk thereupon issues the attachment, and the sherifl' 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 necessary 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 dBfendant in the bill. 
 
 The only difference in effect between this and the original at- 
 tachment is, that in this equitable estates and debts not due may 
 be attached. If debts not due are attached, no final decree can 
 be rendered until they become due. A debtor by any assignable 
 instrument is not to be decreed to pay the same, ilnless it is de- 
 livered up or cancelled, or he is indemnified against any future 
 liability on it. 
 ^ The defendant is to have notice by pviblication in some news- 
 
93 
 
 paper to appear arid 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 indebtedness to defendant, 
 and a decree maybe rendered against him in favor of the plain- 
 tiff for the amount of his debt. The defendant 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 inter- 
 est, if the court should so decree. This bond is to be payable 
 to the plaintiff,, and given to the sheriff, if given before the at- 
 tachment is returned, and to the clerk, if after it is returned ; 
 and the decree is to be rendered against the defendant and his 
 sureties fdr the amount for which they have thus become bound, 
 if the plaintiff recovers so much. 1836,- ch. 43; 1838, ch. 166; 
 1839, ch. 43. 
 
 An accommodation endorser or a surety may, by the same act 
 of 1^36, 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 whether the 
 debt is due or not. But if the defendant will give bond and 
 security to the plaintiff, indemnifying him against his liability 
 as securiiy, either before the court in session or the clerk in va- 
 cation, the attachment will be thereby discharged. 
 
 MAI^DAMUS. 
 
 Sec. 150. This is a writ which issues in the name of the 
 State frdm 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 allied they refuse to do, and for 
 which the plaintiff has no other adequate specific remedy. In 
 most cases it issues from the Circuit Court. As the Supreme 
 Court has only appellate jurisdiction, it cannot issue a manda- 
 mus except to compel the Circuit or Chancery Court to do their 
 duty. The Circuit Court will issue the writ to cdmpel officers 
 ■and all inferior coUrts to do their duty when there is no other 
 specific remedy. Thus, if the County Court should reftise to in- 
 duct an officer who was duly elected and offered bond and secu- 
 rity,' and to take the oath; if a Ki^gister were to refuse to regis- 
 ter a deed, or the County Court Clerk to issue a mamage 
 license. 
 
94 
 
 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 fiat on the 
 petition, directing the clerk to issue a mandamus, on petitioner 
 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 being given, the writ 
 issues. It is an alternative mandamus, the defendant being 
 comtnanded to do the thing, or appear on the return of the writ 
 and shew good reason for not doing it. This writ is made re- 
 turnable to the next term of the court. The writ should be de- 
 livered by the sheriff to the officer to whom it is directed. It 
 may be delivered and proved to have been so done by any per- 
 son. There is usually some third person concerned in the mat- 
 ter, who alone is interested in it. K, for example, the County 
 Court has refdsed to induct the petitioner into the office of clerk, 
 it generally happens that some competitor is inducted. In all 
 such cases, it is the duty of the officer to whom the mandamus 
 issues, to notify to such person that the writ has issued and when 
 it is returnable, and the person thus interested may appear at 
 the return of the writ, and be admitted defendant on giving se- 
 curity for costs. If it appear to the court that his residence is 
 unknown, or that he resides in another State, the court will order 
 publication to be made for him to appear at the next term and 
 answer the petition. On the return of the Avrit, 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 petitiomer, or the petition taken for confessed, or a 
 demurrer to it is overruled, the court orders a peremptory man- 
 damus, which commands the officer absolutely to do tiie act 
 which the petition prays for, and also gives judgment for costs 
 against the defendant. If the decision is against the petitioner, 
 his petition is dismissed and judgment rendered against him 
 and his securities for costs. 1831, ch. 61. 
 
 HABEAS COEPUS. 
 
 Sec. 161. When a person is unlawfaUy imprisoned, or re- 
 strained of his liberty, either in jail or any where else, he may 
 have a Habeas OoTpus to set him at liberty. We have no 
 statutes regulating the practice, but we have by usage established 
 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 the facts which render it unlawful. On this the Judge 
 
96 
 
 issues a Habeas Corpus in the name of the State, addressed to 
 the person who holds him in custody, commanding 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 designated 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 pimished by fine and imprisonment. 
 
 When the Habeas Corpus issues, either party, the prosecutor 
 or prisoner in a criminal prosecution, and the prisoner or who- 
 ever is holding him in custody in other cases, may obtain sub- 
 pcBuas from the judge or any justice, directed to the sheriff or 
 any constable, for witnesses to appear on the return of the Ha- 
 beas Corpus, and give evidence. The party holding the prisoner 
 returns with the writ the cause of his detention. If it is insuflS- 
 cient the couit discharges the prisoner: if it is sufficient, the 
 court will hear the evidence on both sides as to the truth of the 
 alleged feause, and discharge or remand the prisoner according 
 to the result of the investigation. 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 secu- 
 rity 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 wiit for 
 a minor child or ward improperly detained by another. Meigs' 
 Digest, Habeas Corpus, N. & C. 374. , 
 
 CHAPTER YH. 
 
 SUrrS BEEOEE JUSTICES APPEALS TO THE CIKCUIT COUET CEE- 
 
 TIOEAEI. 
 
 Seo. 152. Ordinary suits before justices of the peace are 
 commenced by a summons called a warrant. No security for 
 couts is necessarily to be given, but the warrant may issue sim- 
 ply 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 
 
98 
 
 the plaintiff to give secm-ity 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 warrants with attorneys to issue. 
 
 THE WAEEANT. 
 
 "The State of Tennessee. 
 "To the Sheriff or any ConstaUe of Wilson County: 
 
 " Summon John Smith 'to ■ appear before me or some other 
 justice of said cou-nty, 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 writs. 
 The address is to the sheriff or any constable. The latter is 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 pre- 
 cepts to any individual not a party, who • Shall be bound to exe- 
 cute 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 summon 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. K 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 retm'ned 
 to some competent justice in a,n adjoining district. 
 
 3. If a competent justice of an adjoining district resides nearer 
 to the defendant than any justice of his own district, 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, disti-ict. 
 
 5. If it is a waiTant for debt, it is to be retured 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 resides. . 
 
 6. Where the defendant does not reside in the county 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 justice. 
 N. & C. 532, sec. 9. 1837, ch. 18. 
 
97 
 
 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 before him within 
 a month from its issuance. 1850, ch. 103. In this case it would 
 seem 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 confiision of having the two defendants sum- 
 moned 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 t)ircuit 
 Court. The officer who serves the wan-ant appoints the place, 
 a^ at the justice's dwelling house, or office, or other place. It 
 is the duty of every justice to appoint one day in every month 
 when he will attend at his usual place of residence or 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. 163. The Action. There are no forms of action before 
 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 warranty 
 in the sale of a horse, or for fraud in the sale of a horse, or for 
 an assault and battery on the defendant, or for killing his hogs, 
 or for destroying the timber on his land. There is no time or 
 plape or other details of facts as in a declaration. It is sufficient 
 that the warrant points the defendant to the general nati^re of 
 the charge against him.. If it does not it may be quashed for 
 its vagueness. 6 Hum. 264, 2 Meigs' Dig. 653. 
 
 Sec. 154. 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 sufficient 
 that it state that it is not over a certain amount, the maximum 
 of the justice's jurisdiction on that head. 
 
 Seo. 165. The date should always be the day of the issuance 
 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 justiec, 
 and on the face of the writ it appears to be an official act. Nor 
 7 
 
is a seal believisd to be necessary to a summons, 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 our 
 court process : it is simply to be signed by the clerk. 
 
 Sec. 1.56. 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, showing 
 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. Koss, Const." 
 
 It has been determined that the judgment against the defend- 
 ant is not void, although the return does not show before what 
 justice, or at what place, the case was set for trial. It is pre- 
 sumed the defendant was summoned before the justice who ren- 
 dered the judgment, especially when he is the same who issued 
 the warrant, and it commanded the officer to summon 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. 157. Trial. On the return day of the warrant the par- 
 ties, either in proper person or by their agents, must appear be- 
 foi-e the justice, within the usual business hours, and the case 
 stand for trial immediately. K the plaintiff sues on a written 
 contract, he must produce it. He is not boun(i to prove it, unless 
 the defendant denies it by a written plea of non est factum, 
 on oath. There are no pleadings ; the plaintiff files no declara- 
 tion ; the defendant no plea, except the plea of non est factum. 
 If the plaintiff sues on an account certified from another county 
 ©r State, as mentioned in sec. 86, 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. "What- 
 ever may be his evidence of debt he must, by the act of 1854, 
 ch. 37, file it with the justice on or before the trial. 
 
 As there are no pleadings, nothing is admitted, but the de- 
 fendant may take advantage of every defect 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 
 iiot provable by any witness, by petition, 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. K 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 could be only taken advantage of in 
 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 objec- 
 
tion Before the justice, he cannot do so afterwards, when the 
 case may go to the Circuit Court by appeal or certiorari. 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 allowed 
 to obtain from the justice subpoenas for witnesses, in the same 
 or any adjoining county. So they may issue commissions 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 verbal affi- 
 davit. So the case may, by consent, but not otherwise, be 
 transferred to another justice for trial. 
 
 The law of amendments applies to the proceedings before 
 justices. 
 
 Sec. 158. Non-suit and judgment l)y default, and new trial. 
 K the plaintiff fails to appear and prosecute his suit, judgment 
 is giv(jn 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 pro- 
 nounces 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 until 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 decisiom 
 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. 
 
 " LeHOY cage, J. P." 
 
 Besides'this, the justice is required to keep a docket in which' 
 he enters his judgments. N. & C. 552-5. 
 
 Sec 159. 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. Le- 
 Eoy Cage, J. P." <k thus: "John Den stayor." This is con- 
 sidered as confession of judgment by the stayor. And no one 
 can be bound as stayor 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 stayor. After two days no stay cam 
 be entered without the plaintiff's consent. N. & C. 278, sec. 4. 
 
100 
 
 If the principal in a note and the security or endorser are 
 sued, the justice can enter no one as stayor for the surety or en- 
 dorser, except by the consent of the surety or endorser in writing, 
 or in the presence of the justice. Without such consent, the 
 surety or endorser is exonerated from the payment of the judg- 
 ment, unless the principal and stayor both become insolvent." 
 K & 0. 278. 
 
 K the plaintiff will make oath that the defendant is about to 
 abscond or remove himself or his property out of the county 
 where he resides, the justice may issue execution immediately, 
 but still the defendant may stay it within two days, and that will' 
 supersede the execution. 1852, ch. 177. 
 
 If, before the stay expires, the plaintiff will make oath before 
 the justice that he believes he is in danger of losing his debt on 
 account of the removal or insufficiency of the stayor, and give 
 two days written notice to the defendant that he requires other 
 security, he may have his execution immediately, unless the de- 
 fendant will justify his stayor, or give other security. N. S. 179. 
 
 K the stayor himself becomes apprehensive that he will have 
 to pay the judgment if the execution is not issued until the stay 
 is out, he may, on making affidavit of that fact before the justice, 
 and giving two days notice to the defendant of his intention to 
 do so, demand the immediate issuance of the execution, unless 
 the defendant will release him by giving other good security for 
 the stay. K & 0. 685. 
 
 Sec. 160. Execution. If the judgment is not paid when 
 lihe stay expires, the justice, on demand of the plaintiff, must 
 issue execution against the real and personal property of the de- 
 fendant and the stayor. The officer must take it out of the prin- 
 cipal's property, if he can find any, and when that is exhausted, 
 out of the stayor's. He is to proceed as a sheriff does on a court 
 execution, (See sec. 117, &c.) except that he advertises the sale 
 at one public place in the captain's company where the defend- 
 ant resides, and at two places in the company where the sale is 
 to be made. N. & C. 298. K he levies on land, he cannot sell 
 that, but must return the execution to the justice, and he files 
 all the papers in the Circuit Court, and if the court £nds the 
 proceedings valid, the land is condemned., that is, ordered to be 
 «old by the sheriff to satisfy the judgment. The warrant, judg- 
 ment, and execution, and the returns on them, are all spread 
 upon the record of the court. A Venditioni Exponas then issues 
 to the sheriff, commanding him to sell the land. C. & N. 298. 
 
 If no property can be found by the officer, he may summon 
 any person as garnishee, in writing, to appear before the justice, 
 ito answer on oath what he owes the defendant, or what effects 
 «f his he has in his hands, or what debts are owing to him by 
 
101 
 
 afay 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 hifei, 
 unless he appear and shew cause to the contrary. A notice or 
 Scire Facias then issues, and if he do' not then appear and an- 
 swer on oath, the judgment is made final. When he answers 
 denying indebtedness, or the possession of effects belonging to 
 defendant, he is discharged, at the plaintiff's cost. K he ad- 
 mits a debt, judgment is given against him for it. K he admits 
 effects in his possession, he is ordered to deliver them to the 
 officer. K he discloses effects or debts in the hands of others, 
 the justice issues a summons to them to appear and answer. 
 C. & N 362. See N". S. 317 for forms. 
 
 Sec. 161. What justice to issue, <&o. The justice who has 
 the custody of the judgment is the one by whom execution is 
 to issue, and to whom it is to be returned. But if he is tempo- 
 rarily absent, any other justice of the county may issue execu- 
 tion on his judgments. K a justice absents himself from his 
 district three months, he must deposit his papers with the nearest 
 justice until his return. K he resigns he must deposit them with 
 his successor, or with the nearest justice of the district 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. & N. 434. 
 
 Sec. 162. 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 notice, have judgment, 
 on motion before the justice, against him and his official secu- 
 rities, for the amount of the judgment and 12^ per cent, damages, 
 unless he can shew sufficient reason for not mating the return. 
 C. & N. 299. A bare bringing back of the writ; without show- 
 ing what he has done under it, would doubtless he considered 
 no return. A return is a- response to the command of the writ,, 
 showing that he has obeyed the command by 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 motion 
 before any justice, for the amount collected, and 12-|- per cent, 
 per annum interest on it. In either case five; days notice has to 
 be given of the time, place, and justice, when, where,, and be- 
 fore whom the motion will be made. N. 8.105. 
 
 Sec. 163. Execution out of the 'county — Alias. A justice 
 cannot issue an execution to another county. When he issues 
 an execution to an officer of his own county, and that is returned 
 
102 
 
 *' No property t8 be found in the county," the plaintiff may ob- 
 tain the certificate of the clerk of the county that he was a justice 
 of the county when he issued the execution, and when he ren- 
 dered the judgment, (or that the justice who did render the 
 judgment was then a justice.) On producing this certified exe- 
 cution to a justice of any other county, the latter may issue an 
 execution, returnable before him, and it may be levied on any 
 real or personal property of the defendant in that county. C. 
 & N. 295. 1852, ch. 181, sec. 3, p. 261. 
 
 Sec. 164. Scire Facias. Justices may issue writs of Scire 
 Facias in all cases where necessary. C. & N. 647. For forms 
 see N. S. 325-6. When a defendant against whom a judgment 
 has been rendered by a justice 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 judg- 
 ment. N S. 193. 
 
 Seo. 165. Summary Judgments. Besides the cases of judg- 
 ments against officers, before mentioned in sec. 162, he may 
 render judgment on motion in favor of securities against their 
 principals, in all cases when they render judgments against the 
 securities on any specialty, note, or a,greement to pay money for 
 an amount not exceeding $500, and in favor of accommodation 
 endorsers on a note for the same amount where demand and 
 notice are waived by the indorsement, and in favor of all stayors 
 who have the judgment to pay. Act 1854, ch. 52, 1850, ch. 
 259. 38. 
 
 Sec. 166. Lien. A justice's execution is no lien on property 
 until it is levied. It is not a lien from its teste, as a court exe- 
 cution is. 
 
 A judgment in a court of record, obtained in the county where 
 the defendant resides, is a lien on all his lands in the State, pro- 
 vided execution is taken out and the land sold within one year 
 from the date of the judgment. If rendered in any other county, 
 it is not a lien until a certified copy of it is registered in the 
 , county where the defendant resides. C. & N". 419. But a jus- 
 ' tice's judgment is no lien at all on any sort of property. 
 
 Sec. 167. Attachment. In all those cases where an attach- 
 ment returnable to court will lie, a justice may issue an attach- 
 jnent as original process, returnable before himself, when he has 
 jurisdiction of the subject. 1852, ch. 177. K S. 15, sec. 7. The 
 proceedings to obtain the attachment are the same. When re- 
 turned levied on property, the justice proceeds immediately to 
 trial and judgment, except in the case of a non-resident, when 
 he must stay the proceedings from six to twelve months, and 
 require the plaintiff to give the defendant notice by advertise- 
 ment of.,the time appointed for his appearance. N. S. 15. When 
 
103 
 
 the attachment is levied on land, the jnetice renders judgment, 
 and returns the papers to the Circuit Court, and that court pro- 
 ceeds to order the sale of the land for the satisfaction of the 
 judgment. N. S. 15. 
 
 If any of the property of a non-resident is perishable, the 
 justice may order it to b6 sold on six months credit. N. S. 16. 
 
 Sec. 168. Heplevin. 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 plaintifi" fails to give 
 up the property when judgment goes against him, the justice 
 renders judgment against him and his sureties for double the 
 value thereof. 1851, ch. 32. 
 
 Sec. 169. Foreihle Entry and Detainer. We have already 
 seen that an action of fo];cible entry and detainer may b.e com- 
 menced either in the Circuit Court or before a justice. E". S. 
 165, 167. In either case the j)laintiff must give good security 
 for the costs. N. & C. 347. When the suit is commenced be- 
 fore 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 that the defendant forcibly entered on and detained 
 it.^ C. & IS". 343. ]Sr. S. 165. The warrant is to be served on 
 the defendant six days before the trial, by citing him to appear 
 at a certain time and place before three justices to answer the 
 complaint. N. S. 165. The defendant ihay either plead not 
 guilty, or that he has been three years in peaceable possession 
 of the land. K he does not appear, the three justices are to try 
 the case as if he had pleaded not guilty. If they find the defendant 
 guilty, the judgment is that he restore the land to the plaintiff 
 and pay him the costs. K they decide for the defendant, they 
 siinply give judgment for costs against the plaintiff and his 
 sureties. 
 
 Sec. 170. Appeal., Certiorari., and Restitution. Either party 
 who is dissatisfied with the decision of the justices, may appeal 
 to the Circuit Court, on giving bond and security for costs and 
 damages. Act 1850, 237. If he does not appeal within two 
 days after the judgment, he may within twenty days apply for 
 a Certiorari to taEe the case to the Circuit Court ; in which case 
 he 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 constable 
 to restore the possession of the land to the plaintiff. 
 
 On the trial of the case in the Circuit Court, if the plaintiff 
 succeeds, he recovers of the defendant not only the possession 
 of the land, but rents for the time the defendant has retained it. 
 
 This action is commenced in the Circuit Court just as any 
 
104 
 
 other action is, and the plaintiff recovers rents, when he suc- 
 ceeds. The writ is in substantially the same form as when issued 
 by a justice, which will be seen in Nicholson's Supplement, 165. 
 As the writ contains a description of the land and the injury, a 
 declaration is not necessary, but the court may direct a declaration 
 and other pleadings, if they think it necessary, 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. 
 
 * 
 
 Sec. lYl. K either party is dissatisfied with the decision of 
 the justice, in any civil case, he may at any time, appeal to the 
 Circuit Court, on giving an appeal bond, with good security, as 
 follows : 
 
 "We, John Den and John Smith, acknowledge ourselves 
 indebted to James Hart, in the sum of two hundred dollars, to 
 be void, if the said John Smith shall successftilly 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, for one hundred dollars 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. 
 
 rp . JOHN DEN, [SEAi.] 
 
 -^®^'=' JOHN SMITH, [seal.] 
 
 Lbeot Cage, J. P. 
 
 Two whole days, Sunday excepted, is allowed for taking the 
 appeal ; after which time no appeal can be taken. The Jus- 
 tice is to enter on his papers, the prayer and grant of the appeal 
 thus : 
 
 " The defendant prays an appeal to the Circuit Court, and 
 having given bond, it is granted. 
 
 May 22, 1852. LEEOY CAGE, J. P." 
 
 This appeal suspends the Justice's judgment, and he can do 
 nothing more in 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. and N. 176. 
 > Seo. 172. The Justice is to transmit the whole of the papers 
 in the case,4o the Clerk of the Circuit Court, within the two 
 first days of the next term. Should he fail to do so, the appel- 
 lant should see to it, that they are brought up during the term, 
 in time to have a trial of the case, otherwise, the appellee may 
 
105 
 
 bring them up, and have the judgment of the Justice affirmed. 
 C. and N". 92. 
 
 K the Justice files them during the term, the appellant must 
 appear and prosecute his appeal, otherwise it will be dismissed, 
 and the Justice's judgment shall be affirmed against the appel- 
 lant and his securities, and if he be defendant, the plaintiff shall 
 recover against him and his sureties, the original judgment, 
 and 12^ per cent, per annum interest on it. C. andN. 94r. 
 
 When the cause is called on the docket, if the plaintiff fails 
 to appear, the defendant calls him to come into court, and pros- 
 ecute his suit against the defendant, or he will be non-l3uited. 
 If the defendant tails to appear, Ihe plaintiff calls him to come 
 into court, and defend the suit, (or prosecute his appeal, if he 
 be appellant), or judgment by default will be taken against 
 him. 
 
 Sec. 173. K the appeal is taken five days before the com- 
 mencement of the term of the court, it stands for trial at the 
 first term ; and the Justice may issue subpcenas for witnesses to 
 attend the court. K taken, within five days of the term, the 
 Justice must file the papers, but the cause is to be continued 
 until the next term. 0. and N. 90, Sec. 54. 
 
 The cause stands in the Circuit Court just as it stood before 
 the Justice, the plaintiff is still plaintiff, aM the defendant 
 below is still defendant, no matter which is appellant or ap- 
 pellee. 
 
 The Attorneys should first examine the papers carefully, to 
 see what sort of case was before the' Justice, what judgment 
 he rendered, whether he had jurisdiction, whether an appeal 
 was taken, &c. 
 
 Sec. 174. K the Justice did not have original jurisdiction 
 of the subject, the Circuit Court cannot take jurisdiction of it 
 by appeal. If from the warrant and judgment of the Justice, 
 it appears that he had not jurisdiction of the case, his proceed- 
 ings may be quashed, on motion of the defendant ; for the 
 plaintiff cannot, by releasing part of the claim, give the appel- 
 late Court jurisdiction. 9 Yer. 31. 
 
 If the warrant and judgment do not show a want of juris- 
 diction, then the case must go to trial, and although the plain- 
 tiff proves himself entitled to a greater amount than the Jus- 
 tice 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 wiU be arrested. 
 
 Sec. 175. The appellee may move to dismiss the appeal, if 
 there is nothing in the Justice's papers to show that an appeal 
 was taken, or if no bond was given, or not a sufficient one, or 
 
106 
 
 upon affidavits, ^ showing the insufficiency of the securities. 
 But in such cases, the appellant may give a good bond, or juS'- 
 tify his sureties, or give, others, or he may introduce the Jus- 
 tice and have the appeal entered. The appeal bond itself is 
 prma/ao^e evidence, that an appeal was granted. 1852, ch. 100, 
 Sec. 3. By the same act, as well as others, appeals from Jus- 
 tices 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. and N. 89, N. S. 10. 
 1852, ch 100, Sec. 1 and 2. 
 
 Sec. 176. Any matter which is proper for a plea in abate- 
 ment, such as that the warrant was terved 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 adminis- 
 trator, &c., must be pleaded in writing, and sworn to at the first 
 term, .else the defendant can have no advantage of them. If 
 he failed to take advantage of them before the Justice, (which 
 he might do without writing), he cannot plead them in Court 
 on the appeal. But if it does not appear whether or not he 
 asked the advantage of them before the Justice, he may plead 
 them in court. 9 Ter. 7. 
 
 Sec. 177. 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 introduces his 
 note, account, or other evidence, and the trial progresses as in 
 other cases. He is not limited to the evidence he iatroduced 
 before the Justice. Either party may introduce other evidence 
 or other claims, or causes of action; but if introduced by the 
 plaintiff, they must be of the character described in his warrant. 
 If the plaintiff has sued upon a note or other written evidence 
 of debt, we have seen that he was required to file it before the 
 Justice, on or before the trial. If he has neglected to do so, he 
 must file an affidavit on appealing, that he did not withhold it, 
 in order to deprive the defendant of the benefit of staying the 
 judgment. If he has not made this affidavit before the Justice, 
 he may still do it before the Circuit Court. If he does not, he 
 cannot introduce any such evidence of debt on the trial. 1853- 
 i, ch. 37. 
 
 The defendant may introduce a -set-off in com-t, which he 
 did not offer before the Justice. 10 Ter. 250. 
 
107 
 
 He may prove a debt by way of set-off of greater amoumt 
 than the Justice has jurisdiction of, provided the balance, af- 
 ter deducting the plaintiff's 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 $1,000, and 
 recover $500, the balance of his note, against the plaintiff. 5 
 Yer. 232. 
 
 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 
 coui't will aflSrm the judgment against him. 3 Hum. 230. 
 
 Sbo. 178. If the plaintiff is appellant, he has already given 
 security for costs ; if the defendant is appella^t, 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. C. and 
 N. 18.9. 
 
 If the plaintiff appeals, and does not recover more in the 
 Circuit Court than he did before the Justice, judgment will be 
 rendered against, him for the costs of the appeal, which in- 
 cludes all the costs of the Circuit Court, and he will recover 
 only the costs before the Justice, and the amount of his judg- 
 ment. C. and N. 97. 
 
 When the .Justice's judgment is affirmed, the appellee is 
 entitled to 12^ per cent, per annum interest on it. Meigs 225. 
 
 Sfio. 179. One of several defendants may appeal, in which 
 case, the Justice is to transmit a transcript of the record to the 
 Circuit Court, and proceed against the other defendant, as if 
 no appeal had been taken. C. and N. 96. 
 
 Seo. 180. Revival. When the appellant dies, his represen- 
 tative may revive the appeal by motion. C. and N. 65. ■ 
 
 If he does not, the appellee may have a Soire Facias against 
 him, at any time, within two terms after the death of the de- 
 cedent. Where the appellee dies, the appellant may, in like 
 manner, revive the appeal against his representative. N. S. 10, 
 Act of 1842. 
 
 FOEMS OF ENTEIES. 
 
 VEBDIOT AND JUDGMENT OF AFFIRMANCE. 
 
 " James Hart, ^ 
 
 vs. > Appeal. 
 
 John Smith. ) 
 
 -. Sec. 181. Came the- parties, by their Attorneys, and also a 
 jury of good and lawful men, to-wit: A., B., O.,~&0;, who be- 
 ing elected, tried and sworn, the truth to speak upon the mat- 
 ters in controversy, upon their oaths, do say, they find in favor 
 
108 
 
 of the plaintiff, and affirm the judgment given by Justice 
 Cage, on the 2l8t day of May, 1852, for one hundred dollars, 
 and costs. It is, therefore, considered by the court, that the 
 plaintiff recover of the defendant, and John Den, his surety in 
 the appeal bond, said sum of one hundred dollars, and the fur- 
 ther 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 in favor 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 
 the appellant and his sureties, only for the amount and costs. 
 
 JUDGMENT BY DEFAULT AGAINST APPELLANT. 
 
 " Came the plaintiff, by his Attorney, and the defendant be- 
 ing solemnly called to come into court, and prosecute his ap- 
 peal, came not. It is, therefore, considered by the court, that 
 the plaintiff recover of the defendant, and John Den, his secu- 
 rity in the appeal bond, the sum of one hundred dollars, the 
 amount of Justice Cage's 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 Attorneys, and on motion of the 
 plaintiff, it is ordered by the court that the defendant give se- 
 curity for the prosecution of his appeal, by to-morrow, or the 
 same will be dismissed." 
 
 Next day, 
 , " Came a^ain the parties, by their Attorneys, and the defend- 
 ant having tailed to give security, for the prosecution of this 
 appeal, it is considered by the court that the appeal be dismissed 
 and that the plaintiff recover of the defendant, one hundred 
 dollars, the amount of the judgment of Justice Cage, and twelve 
 dollars and fifty cents, being interest thereon, at the rate of 12^ 
 per cent, per annum, and also the costs before the Justice, and 
 in this court." 
 
 From these forms, the attentive student may learn to make 
 any entries, that maj be demanded by the exigencies of his case. 
 
 CERTIORARI AND SUPERSEDEAS. 
 Sbo. 182.' The certiorari is a writ which issues to an inferior 
 
109 
 
 tribunal or officer, commanding him to send the record in a cer- 
 tain case, duly certified by'him into a superior tribunal. It is 
 either auxiliary ov p'l incipal process. Whenever it is neces- 
 sary 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 foil . and 
 complete record of the inferior court, has not been transmitted, 
 the certiorari isslies to the Clerk of the inferior court, command- 
 ing 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 of cases. The 
 Circuit Court, being the court of general common law jurisdic- 
 tion, exercises a supervisory power over all inferior tribunals, 
 to keep them in the limits prescribed by law, and to preserve 
 the rights of the citizens against their encroachments. The cer- 
 tiorari is one of the principal processes, by which this impor- 
 tant power is exercised. 
 
 The cases in which it is employed as a principal remedial 
 process, that is, by which the party complaining, brings his 
 case intothe Circuit Court for- redress, may be arranged under 
 three heads : 
 
 1. Where the law gives no appeal from the inferior tribunal, 
 whose action is complained of. 
 
 2. Where an appeal is allowed, but the party has lost the 
 benefit of it, and resorts to the certiorari as a substitute for the 
 appeal. 
 
 3. Where the judgment of the inferior tribunal is not com- 
 plained of, but execution is improperly issued, and the defend- 
 ant wants that quashed. In this case, the certiorari is used, 
 instead of the old writ of Audita Querela. 
 
 Sec. 183. Where there is no appeal from the inferior tri- 
 bunal. This is the case in regard to Courts Martial, and many 
 other special tribunals whose adjudications affect the rights of 
 the citizen, and whose proceedings are summary, and not ac- 
 cording 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 to 
 the Circuit Court, or a judge thereof, for a certiorari, and have 
 the case removed into that court, where the proceedings of the 
 special tribunal will be quashed, if they appear to have been 
 inconsistent with the law. — 4 Hay. 64r-69 ; 1 Tenn. 61-64 ; 
 Peck 134 ; 1 Tenn. 1; 2 Hum. 30; 2 Tenn. 181 ; 7 Yer. 21 ; 
 11 Hum. 249. The petitioner also usually asks a supersedeas, 
 to stop any proceeding against him, if he is liable to any, on 
 . the wrongfol judgment. 
 
110 
 
 FORM OF PETITION". 
 
 To the Hon. Samuel, Anderson, Judge of the 6th Judicial 
 Circuit. 
 
 Your petitioner, James Hart, states, [here state the proceed- 
 ings of which he complains, and the facts which show them to 
 be erroneous.] Your petitioner prays a writ of certiorari to 
 bring up the aforesaid proceedings to the next term of the Cir- 
 cuit Court of "Wilson County, that they may be quashed ; and 
 also a writ of supersedeas to stay all further proceedingthereon. 
 No former supersedeas has been granted in this case. 
 
 W. BLACKSTONE, Att'y. 
 
 AFFIDAVIT. 
 
 State of Tennessee, ) 
 "Wilson County, \ 
 James Hart 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, Ist May, 1852. ' JAMES HART. 
 
 S. Andbkson, Judge 5th Jjid. Circuit. 
 
 FIAT. 
 
 To the Clerk of the Circuit Court of "Wilson County. 
 
 Issue writs of certiorari and supersedeas, as prayed in the 
 above petition, upon the petitioner's giving bond and security 
 
 in the sum of $ , conditioned to pay all costs and damages 
 
 if he should fail to prosecute his certiorari with effect. 
 
 May 1, 1852. S. ANDERSON", Judge, &c. 
 
 The Judge. then envelopes 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 whiqh will be 
 given under another head. 
 
 On the return of the writ 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 necessary, 
 they will be submitted to a jury at the next term. 
 
 Seo. 184. Certiorari as a substitute for Appeal. "When- 
 ever an appeal is allowed by law, from an 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, he is entitled to a certiorari. 
 
 "We have seen that an appeal is allowed from every final 
 judgnient of a Justice of the Peace, in a civil case, to the Oir-. 
 
Ill 
 
 cuit Court. An appeal to the Circuit Court is also allowed to 
 " any person who may conceive Himself or the county aggrieved, 
 by any decree or decision of the County Court." — N, 8. 11, 
 act 1844. 
 
 If the appeal thus allowed is defeated by the following causes, 
 the party aggrieved may remove his case to the Circuit Court 
 by certiorari, if he shows merits : 1. The oppressive, erro- 
 neous, wilful, or negligent act of the Court, Justice or Clerk. 
 
 2. The fraud, contrivance, or procurement of the adverse party. 
 
 3. By inevitable accident. 4. By the blameless misfortune of 
 the injured party. — 1 Meigs' Digest, 164 ; 8 Hum.' 107. 
 
 Sec. 1S5. Time for obtaining . When used as a substitute 
 for appeal, it must be obtained at, or before, the nex't term of 
 the Circuit Court, unless the party is prevented from doing so 
 by some extraordinary reason. — 1 Meigs' Digest, 166 ; 9 Hum. 
 120 ; 10 Hum. 439. 
 
 The same. causes which defeat an appeal, and thereby consti- 
 tute good reasons for obtaining a certiorari, at, or before, the 
 first term, will, if they defeat a certiorari at that time, be suffi- 
 cient reasons for granting it at a subsequent time. 
 
 Sec. 186. Bywhom granted. If applied for in twenty days 
 after the rendition of the judgment, it may^be granted by two 
 Justices, that is, the petition may be addressed to^em, and 
 they may direct their fiat to the Clerk of the Circuit Court. 
 After twenty days from the date of the judgment, the petition 
 must be addressed to, and granted by, a Circuit Judge. — C. & 
 N. 141 ; Meigs' Digest, 165. 
 
 ' Sec. 187. 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 eflfect, or if 
 he fail to do so, to perform whatever judgAent the Circuit Court 
 shall render in the cause ; or if th'e certiorari shall be dismissed 
 for iuformaiity or want of sufficient substance, that he will sat- 
 isfy the judgment of tAe Justice or County Court. — C. & N. 141. 
 
 If, however, the petitioner will take the pauper oath, he may 
 obtain the wi'it without giving security. 
 
 Sec. 188. 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 
 rendered, the petition must show a sufficient reason for the de- 
 lay. 3. Merits, that is, the petition must show that the judg- 
 ment was wrong, not by roundly asserting that it was wrong, 
 but by a statement of the facts, which wiU show to the court 
 that it was wrong.^-10 Hum. 439, &c. 
 
 The certiorari is to obtain a new trial, and although the pe- 
 titioner may have been improperly deprived of his appeal, yet 
 
112 
 
 ■'\3 ■ ' ■ 
 
 there is no reason why he should have a new trial, unless 
 he can show that it would result in a judgment in his favor. 
 Bat the petitioner need not show that he used due diligence, to 
 have the benefit of his defence 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 him- 
 self of the defence for which he now asks a new trial. 
 
 Sec. 189. Where there are two defendants to the judgment, 
 one may have a certiorari alone, and in that case the Justice is 
 to send up a copy of the papers and proceed to execution against 
 the other defendant. So if only pari of the' judgment is com- 
 plained of, that part must be specified in the petition, and a cer- 
 tiorari will be granted as to that much, and a copy of the papers 
 sent up, and the Justice will proceed as to the balance. — 0. & 
 N. 142, 143. 
 
 FORM OF PETITION. 
 
 To the Hon. Samuel Anderson, Judge 5th Jud. Circuit. 
 
 Sec. 190. Your petitioner, A. B., states that a judgment 
 was rendered against him by C. D., a Justice of the Peace of 
 Wilson County, on the let of May, 1852, for $100 and costs, in 
 favor of E. F. Petitioner would have appealed fi-om said judg- 
 ment 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 ofi" before he was sued thereon, .by the sale 
 of a horse to the plaintiff, who agreed to deliver up said note, 
 but failed to do so. Petitioner prays a writ of certiorai-i to 
 bring up said judgment to the next term of the Circuit Court 
 of Wilson County, in order that he may have a new trial, and 
 in the meantime, a supersedeas to stay all further proceedings 
 on said 'judgment. K'o supersedeas has been heretofore grant- 
 ed in the case. E. COKE, Att'y. 
 
 Affidavit. — Same as in section 183, and it may be made be- 
 fore a Justice.— C. & N. 143. ' 
 
 FIAT. 
 
 Let the Clerk of the Circuit Court of Wilson County issue 
 writs of certiorari and supersedeas as prayed in the foregoing 
 petition, on petitioner's giving bond and security according to 
 law. S. ANDERSON, Judge, &c. 
 
 May 1, 1852. 
 
 CERTIORARI BOND. 
 
 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 pro- 
 secute, with effect, a writ of certiorari prayed by him to the 
 
113 
 
 next term of the Circtiit Court of Wilson County, from a judg- 
 ment for f 100 and costs, rendered against him by 0. D., a Jus- 
 tice 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 
 cause, or if the certiorari shall be dismissed for inforhiality or 
 want of sufficient substance, or other cause, he shall satisfy the 
 judgment of the Justice of the Peace, and also all costs and 
 damages that may be awarded against him by said court in said 
 cause. A. B. [seal.] 
 
 Gr. 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 judg-- 
 ment was rendered by you in favor of the plaintiff, on the 1st 
 of May, 1852, for f 100 and costs, send all the papers enclosed 
 and certified, under your hand and seal, to the Circuit Court of 
 Wilson County, to be held at the Court House in Lebanon, 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 Leroy 
 Cage, a- Justice of the Peace for said County, rendered judg- 
 ment in favor of the plaintiff, oh the 1st day of May, 1852, for 
 $100 and costs, you are hereby commanded to desist from pro- 
 ceeding further in the execution of the judgment, and to notify 
 to the plaintiff that the record in said suit is removed into the 
 Circujl; Court of Wilson County, by writ of certiorari, return- 
 
 »abl^on the first Monday in May next, at the Court House in 
 
 feljipnon. And have you then and there this wiit. [Tested as 
 
 ^fcr writs.] 
 
 Hiffhese writs are delivered to the petitioner; and are by him, or 
 any officer or other person, delivered to the officers to whom 
 
 *they are respectively directed. The justice must' obey the writ 
 by enclosing all the papers in the case under his hand and seal', 
 and transmitting them to the clerk's office, or filing them him- 
 self on the first day of the term. N. & G. 141. If he fails to 
 do so, the petitioner may, have an alias Ofirtiorari, on affidavit 
 that the first was delivered, or that unavoidable accident or mis- 
 8 
 
114 
 
 fortune prevented its delivery. Aiid % 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 exe- 
 cution, and give notice to the opposite party, and return the 
 Supersedeas showing that he has given him notice ; for until h,e 
 has notice the court cannot proceed in the case. 
 
 Sec 191. Proceedings on return of the writ. At the re- 
 turn term, or at the first term after the opposite party has notice, 
 he may move to dismissj^the Certiorari, either at the calling of 
 the roll in the morning, or when the cause is called on the Re- 
 ference Docket. 1 Tenn. 81, 65, 368. 2 Tenn. 179. K the mo- 
 tion is not made at that term, it is an admission that there is 
 si\fficient cause for the writ, and the cause wiE 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. Ipsufficientreasons.for not appealing; 2. Want of merits. 
 10 Huni. 439, 4 Hay. 68, '&g.; 3. Insufficient reasons for not 
 having applied at or before the first term of the com-t, where a 
 term has intervened between the date of the judgment and ap- 
 plication. 2 Tenn. 110, 1Y9, &c. The petitioner maybe allowed, 
 however, to amend his petition, by making afl&davit to additional 
 facts. Y Hum. 109. ' 
 
 2. For defects in or want of prosecution bond, or insuffidency 
 of the security'. These defects, however, may be supplied by 
 his giving a sufficient bond or new security. 1 Tenn. 344. 8 
 Yer. S5, 222. 
 
 3. The papers returned showing the petition to be false. 8, 
 Hum. 703. ■ ■ ^ 
 
 Counter affidavits cannot he received to show the statements in 
 the petition false, nor any dtiier evidence, except the papt 
 turned in obedience to the Certiorari. The motion to dismiss : 
 like a demurrer, take the petition to be true, except, so far as 
 record it brings up may show it to be false. 2 Swan 537. ' 
 
 Sec. 192. Consequences of Dismissal, If for any cause the 
 Certiorari is dismissed, judgment is rendered against the peti-f 
 tioner and his sureties in the prosecution bond for the amount 
 of the judgment below, and 12|- per cent, interest from the date 
 thereof, and.C0Bt§. 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 : 
 
115 
 
 ENTRY. 
 " James Hart, h 
 
 vs, > Certiorari. 
 
 "Jolm Smith. ) 
 
 "Game the parties by their attorneys; and on motion of the 
 plaiotiff, it appearing to the court that thepetition does not show 
 sufficient cause for granting the Certiorari, (or whate^^er else-' 
 maybe the cause of the dismissal,) it is considered by the court' 
 that the Certiorari be dismissed^ and that the plaintiff recover 
 of ■ the defendant and A. B., hi& security in. the Certiorari bond; 
 $100, the amount of the 'judgment of Justice- Cage, . rendered 
 Ist of May, 1852, and $12, being 12^ per cent; interest thereon 
 to'this time, and also the costs before the justice and in this: 
 court." 
 
 Sec; 193. If the motion to dismiss is 'overmled, the follb-wing 
 entry is made: 
 
 "Came, &c., and the plaintiff moved to dismiss the Certio- 
 rari, which motion the court overrules." 
 
 The cause then stands for trial at the next term, and the par- 
 ties prepare for trial, and try the case juSt as if it were an ap- 
 peal. It is a new trial: the judgment below has no influence : 
 the plaintiff 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 origfnal trial before th6 justice. He is hot' con- 
 fined to the grounds stated in the petition. The^petition has 
 performed its office when it has procured' a new trial, and is then 
 functus officio, Z Hum. 244. If the judgment below is affirmed, 
 the plaintiff recovers of the defendant and his security the amount 
 of the judgment, and .12|-,per cent, interest: C. & N". 14^; 1827. 
 If less is recovered of the plaintiff than the justice's judgment, 
 he recovers that amount and six per cent, interest and costs, of 
 thedefendant and his sureties. Q. & BT. 142 ; 1807, section 2, 
 (where the reading should be 6 per cent.', instead of 12^). 
 Scott, 1063. 
 
 Altii^gh we have spoken of the defendant' generally as the 
 paijJMpbtaining a Certiorari, yet the plaintiff may in- like man- 
 Btain it; andif it is dismissed, or he is cast on the trial, 
 ^^ ! judgment is affirmed against him, it goes against him and 
 aiTsureties, jiist as if he were defendant. If, for instance, the; 
 pendant has recovered judgment against himon adebt set-off*^' 
 against his, he recovers '12|- per cent, interest, on' affirmance of 
 the judgment. 
 
 SECi 194. The' defendant, although he is petitioner, may, on 
 motion, at any time compel the plaintiff to give security for the 
 pposeeution of his suit.' C. &'N. 189. 
 
116 
 
 OERTIORAEI INSTEAD OF AUDITA QUEEELA. 
 
 Seo. 195.' The Audita Querela was used to 'relieve the de- 
 fendant from the judgment, when any fact had occurred since 
 it was rendered by which the defendant was discharged. It is 
 now obsolete, and the pdrty is relieved by motion, sustained by 
 affidavits showing the facts, on which the court will make a rule 
 on the plaintiff to show cause why satisfaction of the judgment 
 should not be entered, or wiry any further proceeding thereon 
 should not be supsrseded. If execution has issued from the 
 court, a petition for a Supersedeas is necessary to stop the exe- 
 cution until court, when the motion is made to quash it. If a 
 justice's judgment has been satisfied or discharged, and never- 
 theless execution has issued, the defendant may obtain a Certio- 
 rari and Supersedeas from the Circuit Judge or Court, to bring 
 the execution into Court, that the same may be quashed. In 
 this case the petition gives bond only for costs and damages. 
 The petitioner does not complain of the judgment in this sort of 
 case, and of course 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 sub- 
 stitute for appeal. 
 
 K dismissed, judgment is rendered against the petitioner and 
 his surety for the costs only, and a Procedendo is directed to the 
 justice commanding him to proceed and issue execution on the 
 judgment. 8*Yer§. 217; 10 Yerg. 252. 
 
 Seo. 196. Motion to quash. The petitioner, on the return 
 of the writ, makes a motion to quash the execution. On this 
 motion, if the petition is not dismissed, an issue is made up 
 simply by the plaintiff's denying the facts alleged in the petition ; 
 or the court may order a more formal issue to be made up, by 
 requiring the petitioner to file a statement of the facts he relies 
 upon in the nature Of a Declaration, to which the defendant will 
 be required to plead : and thus a definite issue be formed as in 
 the case of the writ of error coram nobis in sec. 136. This issue 
 will stand for trial by a jury at the next term, when, if tha^w- • 
 diet is found for petitioner, the motion to quash ia sustaineaf^f « 
 found for the plaintiff, judgment is given against the petitiow^^' 
 and his security for costs, and a Procedendcis awarded to'wPw' 
 justice. 10 Yer. 252. 
 
 SET-OFF OF JUDGMENT. * 
 
 Sec. 197. When parties recover judgments against each 
 
 other in the same or in different courts, one of these judgments 
 
 may, on motion, be set-off against the other, for the amount of 
 
 the principal and interest ; but as the officers and witnesses are 
 
117 
 
 HP 
 
 entitled to the costs, there can be no set-off of costs in our State, 
 but the execution will, in each case, issue for them. 6 Yer. 
 212 : 1 Yer. 501. Motion and production of the judgment is 
 all that is necessary. If it is a judgment of another court, a 
 copy must be produced. This power is incident to the jurisdic- 
 tion of courts, and does not depend on the statutes of set-off. 
 If the different judgments are before the same justice, he may, 
 no doubt, set off one against the other. If thw are before dif- 
 ferent justices, the set-off may be obtained by Certiorari, if the 
 petition shows any just and reasonable groimd for resox-ting to 
 it, as the insolvency of one, so that it would work irremediable 
 injustice to the petitioner if the judgment against him were col- 
 lected. Indeed, in no case will a court set-off judgments against 
 each other, except where right and equity demand it. 
 
 CHAPTEE VIII. 
 
 COTTNTT COTJKT. 
 
 Sec. 198. The County Court is held on the first Monday in 
 every month. At the January, April, July, and October ses- 
 sions, all the justices are required to attend, and these are called 
 the Quarterly Terms. The other terms are called the Monthly 
 Terms, and are held by an officer called the County Judge, who 
 is elected by the people of the county. 
 
 The jurisdiction of this court is very miscellaneous. Some 
 of it can only be transacted at the Quarterly Terms, where the 
 County Judge presides, but the justices act. 
 
 We will notice a few of the many subjects of which they have 
 jurisdiction, and the mode of exercising it. 
 
 Sec. 199. The administration of Deeedents'' estates. An 
 administrator is appointed at any term, on motion, sustained by 
 proo% 1. Of the death of the intestate ; 2. That he resided in 
 the county in which the motion is made. 0. & "E. 708. The 
 next of kin has the first title to the administration, and among 
 the next of kin that one who is thought best qualified. If none 
 of them apply, the largest creditor is entitled, on making oath 
 of his debt. 0. & N. 73. It is doubtful whether the widow has 
 any claim. 2 Hum. 30. By consent of those entitled, admin- 
 istration may be granted to any one. When appointed he must 
 give bond, and take an oath for the faithful administration of 
 his trust. C. & N. 71. 
 
118 
 
 Any one claiming to be entitled to the administration, may- 
 appear and resist the motion, and either party may appeal to the 
 Circuit Court, if &e decision is against him ; and upon the de- 
 cision of the appeal, the Circuit Court grants administration to 
 the party entitled. C, & N. "76 ; M. & Y. 43. And if either 
 is deprived of Kis appeal without his fault, he may remove it by 
 Certiorari, 3 JEum, 30. 
 
 Emooation. 'When administration has been improperly 
 granted, any one who conceives himself entitled to it may pe- 
 tition the County Co^rt to revoke the grant, on which a Citation 
 issues to the administrator to appear at the next court. This 
 petition must state the facts which show that the administration 
 ought to be revoked, and they must be proved on the trial of 
 the motion. 3 Hum. 142. When a will is discovered, the 
 executor in like manner obtains a revocation of thq adminis- 
 tration. 
 
 Resignation. An administrator or executor may resign his 
 trust by petition to the court, and on five days notice to those 
 legatees or distributees who reside in the county, and such notice 
 to the others as the, court shall order, the court may accept or 
 refuse the resignation. 1852, ch. 141. 
 
 On tJie estates of non-residents. When one who resides in 
 another State dies, leaving real or personal property in this State, 
 or debts owing to him here, the County Court of any county in 
 this State where any such property is situated, or such debtor 
 resides, may appoint an administrator. 0. & N. 85 ; N". S. 163 ; 
 9 Hum. 327. 
 
 Sec. 200. Proiate of Wills, and appointment qf Executors. 
 We have seen that wills are proved in the county where the tes- 
 tator resided at the time of his death. The decease of the party, 
 his residence in the county, and the due execution of the will, 
 are the points to be proved. The a the executor moves for let- 
 ters testamentary, which are to be granted on his giving bond 
 and security, and taking an oath for. the due exectition of the 
 will, unless the will dispenses with security. If no executor is 
 appointed, an administrator with tJie will annexed is to be ap- 
 pointed. If the County Court refuses to appoint one, executor 
 or administrator wKo considers himself enticed to the appoint-| 
 ment, he may appeal to the Circuit Court. The court might 
 not consider the will sufficiently proved, or for other reasons 
 refuse to appoint the applicant. C. & N. 1^. 
 
 Summons to produce a Will. On application to the Court, 
 they may direct a summons to issue to compel any one who is 
 in possession of a will to produce it for probate, or to disclose 
 on oath where it is, if he has parted with the possession. C. 
 & N. 708. 
 
219 
 
 Sec. 201, Settlements of their aaoounts. Administrators 
 and executors are to settle tl^ei'r accounts with the clerk of the 
 County Court at the end of two years from the time of their 
 appointment. .The clerk is to report the settlement to the County 
 Court for confirmation or rejection, when exceptions may be 
 takeii to it by any person interested, which are to be decided by 
 the court, and either party may appeal to the Circuit Court. 
 N. S. 56. 
 
 GUARDIANS OF INFANTS. 
 
 Sec. 203. These also are appointed by the County Court, for 
 aU. orphans, ,(C. & N. 367,) for minors Who have estates inde- 
 pendent of theii: parents, (3Y1,) or where the wife is abandoned 
 by her husband, N. S. 171. The guardians are to give bond 
 payable to the State, on which the ward may sue them in the 
 name of the State for his use. If they do not take good security, 
 the justices are liable themselves to an action by the ward for 
 any damage he may sustain by reason of the omission.- 3 Hum. 
 451. Oil complaint made to the court that the guardian is mis- 
 using the orphan, or about to marry him in disparagement, or 
 neglecting his education, or wasting or otherwise mismanaging 
 his estate, the court may remove him and appoint another guard- 
 ian. C. & N. 367. They are to settle annually with the clerk 
 of the County Court, (N. S. S6,) and they are to, renew their 
 bonds every two years, or the court shall remove them, (172.) 
 
 IDIOTS AND LUNATICS. 
 
 Sec. 203. The County Court, oh information that any idiot 
 or lunatic resides in the county, orders the sheriff to summon a 
 jury of twelve freeholders to inquire into the fact and return 
 their inquisition to the same or the next term of the court, and 
 also what property he has. They then appoint a guardian to 
 take charge of the j^erson and property. "When he h4s not 
 bufficient property for Kis support, the county supports by 
 consigning him to the poor-house of the county, if they have 
 any;, if not, by letting^him out to the lowest bidder, and paying 
 him his bid. 0. & N. 378, 536. The report of the jury may- 
 be contested, and an appeal to the Circuit Court taken from the 
 decision of the County Court. 
 
 Concurrent jurisdiction is given to the Chancery Court by the 
 act of 1852, ch. 163. By petition to that court, stating the evi- 
 dence of insanity and the defendant's pr6per^;y, verified by his 
 own affidavit and that of some other person unconnected with 
 the defendant or ^imself,' any ]^efson n^^y obtain a fiat from the 
 Chancellor or any Circuit Judge to the Clerk and Master, to 
 issue a writ to the sheriff to siim'mon a jury of inquest, on peti- 
 
120 
 
 tioner giving bond and security for costs and damages. The 
 clerk is to have a copy of the petition served on defendant and 
 ten days notice of 'the time and place of holding the inquest, 
 and to preside over the deliberations of the jury, appoint a 
 guardian until court meets, if he is found insane, and report 
 the inquest to the court, when a regular guardian is appointed, 
 or the inquest is set aside, and another is awarded or not, at the 
 discretion of the Chancellor. 239. 
 
 Sec. 204. The Circuit or Chancery Court may, on the peti- 
 tion of the guardian, order the sale of the estate, and such dis- 
 position of the proceeds as may be for the interest of the non ■ 
 compos. 1852, ch. 57. 
 
 And the Chancery Court may, on the petition of the guardian 
 or any child of the lunatic, decree a reasonable division of his 
 estate among the children,, as if he had died intestate. 1852, 
 ch. 67, sec. 2. 
 
 And on the coming of age or marrying of the child of an 
 idiot or lunatic, 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. 
 
 mSOLVENT ESTATES. 
 
 Sec. 205. Executors and administrators are to pay no debts 
 until after the expiration of six months from their qualification, 
 unless they know the estate to be solvent. Insolvent estates are 
 to be distributed rateably among 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 the Chancery Court 
 where it does exceed that sum. The proceeding is commenced 
 hj a suggestion, that is, a statement in writing to the Judge 
 of the County Court, by the administrator or executor, that the 
 personal estate is insufficient to pay the debts. A creditor also 
 may make the suggestion. The judge then makes an order on 
 the executor to give notice by advertisement for all creditors to 
 file their claims by a given day, not less than three nor moife than 
 six months. 'No suit can be brought against him after such 
 notice; but creditors must file their claims with the judge. 
 They may be contested by the administrator before the judge, 
 and either party may appeal from his decision to the Circuit 
 Court. When the claims are all adjudicated, the judge makes 
 an order on the executor to file a schedule of all the personal 
 and real estate. When that is done he states an account of the 
 estate and the debts. It may be excepted to, and an appeal lies 
 to the Circuit Court, an'^ when there decided the case is re- 
 manded to the County Court, when the administrator is ordered 
 
131 
 
 . to pay the debts rateably. K the personal estate is insiifficient, 
 the real estate may be sold on the petition of the executor to the 
 County Court, making the heirs and widow parties ; and when 
 sold the proceeds are to be distributed as the personal estate. 
 
 At any time, after the suggestion of insolvency, the adminis- 
 trator or any creditor may, by biU, transfer the a,dministration 
 of the estate to the Chancery Court, if the value of the estate 
 exceeds one thousand dollars. AU the laws on this subject are 
 admirably embodied in the act of 1852, ch. 283, p. 611. 
 
 BASTAEDY. 
 
 Sec. 206. Any justice of the peace, upon his own know- 
 ledge, or on information made to him, that any single woman 
 has been delivered of a bastard child in his county, may, after 
 the lapse of thirty days from its birth, issue a warrant and have 
 her brought before him, and examine her on oath concerning 
 the father. If she refuses to declare who is the father, she is to 
 be fined three doUars and 12^ cents for fornication, and give 
 bond and good security to keep the child from becoming charge- 
 able to the county. 
 
 K she charges any one with being the father, the justice issues 
 a warrant against him, and upon his being brought before the 
 justice, he is to enter into bond and security to appear 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 aU the papers to the clerk 
 of the County Court, and he issues a capias, directed to the 
 sheriff of any county in the State, commanding him to take the 
 body of the defendant and have him before the next term of the 
 County Court to answer the charge. When the sheriff takes 
 him, he is to take a bail bond for his appearance. K he does 
 not give the bond, either to the justice when brought before 
 him or to the sheriff of another county whefl he takes him, he is 
 to be committed to jail until court. 
 
 The justice is to return the recognizance and all the papers 
 in the c^se to the County Court: there, upon the mere affidavit 
 . of the woman, he is adjudged the father, and stands charged 
 with the maintainance of the child as the court shall order, and 
 he is to give bond an(jl security to perform the order, and to in- 
 demnify the county against any charge for the maintainance of 
 the chUd. The order of tbe court is, that he pay a certain sum 
 per annum to the mother, for three years, for the maintainance 
 of the child, not exceeding forty dollars for the first year after 
 the birth of the child, thirty for the second, and twenty for the 
 third. At the end of three years, the court is to make such dis- 
 position of the child as shall most conduce to its interest, by 
 
122 
 
 giving it to the father or Binding it as apprentice to soiAe snita- 
 ble person. Blit if the mother is able to support it, and does 
 support it, she cannot be deprived of it. 1 Yer. 92 ; N. & 0. 123. 
 
 The defendant, however, may contest the paterfaity by mating 
 affidavit that he is not the father of the child, on which the court 
 will hear evidence. The wonian's affidavit is still regarded as 
 prima fade evidence of the paternity, ahd it will devolve oa 
 the defendant to disprove it. Either party may apj)eal to the 
 Circuit Court, where the trial is to be by jury. 0. & N. 123: 
 1852, ch. 187, sees. 2, 3. , , , , 
 
 V K the defendant fails to appear in the County Court^ judgment 
 nisi may be taken against him and his sureties, and a Bcire 
 Facias issue. Sec. 1. 
 
 On the orders of the Court makiiig aliowiancefe to th6 mother, 
 execution may issue. Sec. 4. 
 
 LE&ITIMATING AND ADOPTING CHILDEEN--CHANGING NAME. 
 
 Sec. 207. On the petition of any person to the County or 
 Circuit Court, setting forth the reasons for it, the court may 
 order the name of the petitioner's illegitimate child to be changed, 
 and the child to be made a legitimate heir. C. & E". 499. But 
 the decree of legitimation does not entitle him to the possession 
 of the child, unless the cOurt is satisfied it will be for its interest, 
 (N. S. 119: 1 Yer. 92,) nor exonerate him from his obligation 
 to maintain the child. C. & N. 124. 
 
 So, any person's name may be altered by application to either 
 of said courts, for sufficient reasons. 0. & N. 499 : 1852, ch. 338. 
 
 So, upon motion or petition, either court may authorize any 
 person to adopt any child, whether his own or not, and vrhether 
 illegitimate or not ; and such a;dopted child shall become an heir 
 of the petitioner. 1852, ch. 338.' 
 
 • APPRENTICES. 
 
 Sec. 208. "When an orphan's estate is so small that no per- 
 son will niaintain and educate him for the profits, the County 
 Court shall bind him apprentice to sbme approved perlon until 
 he is twenty-one years old. The master must be bound to fur- 
 nish him food, clothes, lodging and accommodations, to teach 
 him to read and write at least, and instnict him in the employ- 
 ment to which he is bound. AH base born free children are to 
 be bound in like manner. Females are also to be bound until 
 eighteen years old, unless they are mulattoes or mttstees, and 
 then until twenty-one. If the apprentice is illused, or not taught 
 the trade or employment to which he is bound, he may on com- 
 plaint be released from his master, and bound to another. He 
 may also sue on the indenture for any violation of its covenants. 
 
123 
 
 The court may also bind oui any child who is deserted by his 
 father, if his mother agrees to it. C. & N. 98. 
 
 EOADS. 
 
 Sec. 209. The county courts have the exclusive power to 
 open, change, or discontinue roads. For this purpose it is the 
 practice to address a petition to the court, signed by the persons 
 who want the road opened or changed. On this the court ap- 
 points a jury of vieto, consisting of not lees than five nor more 
 than twelve householders or freeholders. This may be done by 
 the Monthly Court. 1849, ch. 2l. The order is delivered to 
 the sherifi", who, or his deputy, summons the jury and swears 
 them. They report to the next quarterly term, either for or 
 against the object of the petition. If their report is favotable, 
 the court, if twelve or a majority of the justices be present, 
 proceed to order the. opening/ or change recommended, or they 
 refiise to do it if they think the public interest does not demand 
 it. If they grant the order, they appoint an overseer and assign 
 him his hands to work on the tohd, aud annually thereafter thfey 
 appoint a new overseer, and assign him his hands. If they 
 think it manifestly a useless road, they may reflise to appoint 
 a jury of view. Any one who conceives himself injured by the 
 laying out of a toad may apply to the court, and have a jury 
 appointed to assess his damages, which are to be paid by the 
 county. Any one who is dissatisfied with the decision of the 
 court in relation to laying off and establishing or discontinuing 
 roads or ferries, may appeal to the Circuit Court. C. & N. 95, 
 #29, &c. In this appeal the justices of the County Court or the 
 petitioners may be plaintiffs, and the Opponents of the road, 
 who choose to appeal or to make themselves parties, will be 
 defendants. 
 
 FEEEIES. 
 
 Sec. 210. The Quarterly County Courts, nine or a majority 
 of thp Justices being present, have the ppwer to establish fer- 
 ries, where they think the public convenience requires, them. 
 The owners of the banks are entitled to the ferry right, in pref- 
 erence to others. They have power to compel ferry keepers to 
 give bond and security, to keep boats in good repair, and well 
 attended to, for the' accommodation of travelers and others. — 
 "When one keeps a ferry, where a public road crosses a river, 
 without having the ferry established by law, he shall be governed 
 by the laws concerning public ferries. C. & N. 335, &c. 
 
 The court have also a right to diBcdntinue ferries. C. & N". 336. 
 
 This jurisdiction is also exercised on petition, or it may be 
 oii>r(erbal application. 
 
124 
 
 JUDGMENT ON NOTES, &c. 
 
 Sec. 311. We have seen in Sec. 142—43—4:4, that the 
 County Court had concurrent jurisdiction with the Circuit and 
 Chancery Courts, in 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 from the purchasers. K 
 these notes are not paid when due, the Quorum Court may ren- 
 der judgments on them, in favor of the payees, on their motion ; 
 but they must give to the makers five days notice of their inten- 
 tion to make the motion. K any questions of fact arise, for in- 
 vestigation, they may be tried by the court, or on motion of ei- 
 ther party, the court may direct the Sheriff to summon a jury 
 to try them. Execution issues on the judgments, returnable to 
 the County Court. But if either party is dissatisfied with 
 the judgment of the County Court, he may have a writ of error 
 or appeal, in the nature of a writ of error, to the Supreme 
 Court. 1852, ch. 92. 
 
 APPEALS AND WRITS OF EREOE FEOM COUNTY 
 
 COURT. 
 
 Sec. 212. 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 wiih the Clerk of the Circuit Court, at least fifteen 
 days before the next term, and then the Clerk may issue sub- 
 poenas for witnesses, and the case stands for trial at that term. 
 If the appellant fails to file the transcript fifteen days before the 
 next term, the appellee may file them and have judgment af- 
 firmed. The same rule applies to writs of error from the Coun- 
 ty to the Circuit Court. If, however, there are not thirty days be- 
 tween the last day of the County Court from which the appeal 
 is taken, to the next term of the Circuit Court, then the appel- 
 lant is allowed until fifteen days before the succeeding term, to 
 file the record, the Clerk being allowed ten days to prepare the 
 transcript, and the appellant the other five days, to procure 
 and file it. C. & N. 91 ; 1 Hum. 60: 8 Hum. 476 ; 8 Yer. 164; 
 M. & Y. 264. 
 
 On an appeal, the parties stand in the Circuit as they stood 
 in the County Court ; the case is to be tried de novo / each, 
 therefore, must be prepared with his evidence, and irregularity, 
 and errors in the proceedings below, will not be noticed. 9 Yer. 
 268; 2 Ten. 179. 
 
 On a writ of error, however, the appellant is plaintiff, and 
 the appellee defendant, and the record only is noticed"; and if 
 errors are found there, affecting the merits of the case, then, 
 and then only, the judgment is to be reversed. C. & N. 96, 
 Act 1829. e^ 
 
125 
 
 APPEAL IN ERROE TO SUPREME COURT. 
 
 Either party may take an appeal in the nature of a ■writ of 
 error, from the County to the Supreme Court, by the consent of 
 the other party. Bxxt without that consent, he must either take 
 an appeal or writ of error, or an appeal in the nature of a writ 
 of error to the Circuit Court. C. & N. 94. 
 
 K he tabes an appeal in the nature of a writ of error, he 
 may file a bill of exceptions to anything done by the County 
 Court, and thus have the case before the Circuit Court, upon the 
 law arising out of all the judgments of the County Court in the 
 progress of the case, as well as upon the facts. But no evidence 
 is introduced, the Circuit Court adjudicates on the record, and 
 reverses or affirms the County Court judgment, as there may. 
 appear to be error in it or not. 
 
 CHAPTER IX. 
 
 SniTS BY AND AQAUSTST ADMINISTEATOBS ASD- mXECnT0E9. 
 
 Sec. 213. 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 ; all his land and other real property vest in hia 
 heir, who is called his real representative. 
 
 Th.e\per8onal r^resentative may sue as soon as he is duly 
 appointed by th^e County Court. But he cannot be sued, until 
 six months afterwards. C. & N. 84. 
 
 Nor can execution issue against him until twelve months af- 
 terwards, unless judgment was obtained in the life-time of the 
 deceased. C. & N. 80. 
 
 Where there are 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. 8'2. • 
 
 One may be sued alone before a Justice of the Peace, where 
 the other has removed out of the county. C. & N. 83. 
 
 For any wrong done by the deceased, his personal representa- 
 tive is not liable to an action for.damages. 10 Yer. -434. 
 
 But for any wrong done to the decieased, affecting his person- 
 al property, his representative may sue. 7. Yer. 79. 
 
 In either case, however, if the action has been commenced 
 before the death of the decedent, it may be revived by, or against 
 
126 
 
 his representatiye, itnlessi it was for an injury affecting his per- 
 son or character. 0. & N. 68. 
 
 Sec. 214. Forms of Writ9\ and DeclaraUons. _ The char- 
 acter in which a party sues, must be stated in the writ and .dec- 
 laration. As it is stated the same way in both, we^ will just 
 give the form of a declaration in debt, by and against an ad- 
 ministrator, and executor. 
 
 DEGLAEATION". 
 
 f Janies.Hart, administrator of the goods and chattels, _ rights 
 and credits, which were of Dixon Hart, deceased, who died in- 
 testate, (or executor, of the last will, and, testament, of Dixon 
 Hart, deceased), by W. Blackstone^ his Attorney, complains of 
 John Smith, administrator of the goods and, chattels, rights and 
 credits, which were of David Smim, deceased, who died intes- 
 tate, being in court by summons, of a plea that he rendered unto 
 him, one thousand dollars which he unjustly detains from 
 him. For that the said David Smith, in his life-time, and in 
 the life-time of the said Dixon Hart, deceased, to-wit : on the 
 1st 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 mDnths-after the date thereof' Yet the said David Smith 
 in his life-time, did not pay, nor has the said John. Smith feince 
 his death, paid the same, or any part, thereof, to the said" Dixon 
 Hart in his life-time, or to the plaintiff since his death ; to the 
 damage of the plaintiff as administrator as aforesaid, two hun- 
 dred doUars, and therefore he sues. And the said James Hart . 
 brings into court here, the letters of ' administration, granted;to 
 him by the Gdunty Court' of Wilson county, at the mfty T6rm, 
 1851, by which it appears that he is administrator as aforesaid. 
 
 W; BLACKSTONE, Attorney. 
 
 To this.the defendant may plead the same, pleas as the decedent" 
 might, such as non est factum^statute of limitations, and as 
 we think, nil debet, under the statute of 1850. In the plea of 
 nil debet, the only difference is, that an administrator- says he 
 does. not detain, instead of saying he does not owe the debt.— - 
 He may also plead plene adimmstravit^ &g. 
 
 The judgment against an administrator, is in this form : 
 
 " It is considered by , the court, that the plaintiff recover of i 
 defendant said sum of, &c., and also the costs of suit, to be lev- 
 ied of the goods and chattels, that were of the said David . 
 Smith, at the time of his death, remaining in the hands of the 
 defendant, to be administered, if so much can; be found; if not* 
 
127 
 
 then the costs to be levied o;f the proper goods and chattels, 
 lajjds and tenements, of the. defendant." 
 
 If on the exeisution, sufficient goods of the deceased; cannot- 
 be found, then a Scire Facias issues against the administrator, 
 to show cause why judgment should ' not be rendered against 
 him personally. 
 
 Sec. 215. Against Adrninistrator or Sxeoutor on hia. 
 Bond. The bond is payable to the Stsite, and any one who, 
 is injured by a breach of the conditions, may bring an action, of 
 debt, in the name of the State for his use, against the adminis- 
 trator and his securities. 1848, ch. 167. In his declaration, 
 he must, allege a breach of some of the conditions of the bond» 
 The conditions are, 1. To exhibit an inventory to the County 
 Court. For, a breach of this, a creditor may probably sue, — ' 
 
 2. To administer the estate according to law. A creditor who 
 has obtained a judgment against the, administrator, and he has 
 failed to satisfy it, may sue .him for a breach of this condition. 
 
 3, To settle his administra/tion account within two years, 4. 
 To pay over to the person entitled, w;ha,t remains in his hands,. 
 For, a breach of this, legatees and distributees may sue on his 
 bond,- Peck 285; C. &H.80, 
 
 SUITS BY AND AGAINST INFANTS. 
 
 Sec. 216. An infant must sue and defend by gnardiaa. If 
 he has no guardian, or he wants to sue his guq,rdian, or his 
 guardian will not bring the suit, he may sue by any one who 
 will act for him, as Yob next friend^ or prooh^in O'tny^ and give,, 
 security for costs. IQ Yer. 17. 
 
 K an infant is sued and has no guardian, any court in whicji,, 
 he is sued, will appoint some one as guardian, pending the sv,it, 
 who acts as guardian for the special occasion, and has no further 
 ppwer th,an simply to defend ithe suit. He is called gurdian ad 
 litem., or lis pendens, on: p&ndente lite. But the process mugti 
 be served on the infan^;.. 1 Swan 76. 
 
 FOEM OF WRIT AND DECLAEATION. 
 
 Where, an infant sues .by, his next, friend or guardian,- the. 
 writ directs the Sheriff to summon tt,e defendant "to answer 
 A. B., an infa,nt under the age of twenty-one years,, , who sues , 
 by his next feftxid,(or guptivdAairi), C. D., of a pl^a," &c,. 
 
 The declaration would commence, "A. B., an infant, under, 
 the age of twenty-one years,, by. C. D., his next friend, com- 
 plains of R F.,'^&c. , 
 
 Process issues, agg,inpt the infant himself, and on its return, 
 e^^cuted, he is to appear,, by his guardian, if he hp.s, any ; if not , 
 the Court is to appoint one.. 
 
128 
 
 The declaration then commences'^ thus : 
 " And the said E. ¥., an infant, under twenty-one years of 
 age, by G. H., his guardian, comes and says," &c. 
 
 SUITS BY AND AGAINST OOEPOEATIONS. 
 
 Sec. 217. Corporations sue and are sued in their corporate 
 names. For example, suppose the Tennessee Manufacturing 
 Company wishes to sue the Trustees of Cumberland Universi- 
 ty, on the following note : 
 
 Lebanon, January 1, 1862, 
 j» The Trustees of Cumberland University, promise to pay the 
 Tennessee Manufacturing Company, or order, ten 4;housand 
 dollars. E. L. CARUTHEES, Pres. 
 
 J. S. MoClain, Sec'y. 
 
 The writ would command the Sheriff to " summon the Trus- 
 tees of Cumberland University, to appear, &c., to answer the 
 Tennessee Manufacturing Company, of a plea, that they render 
 unto said Company $10,000," &c. 
 
 The Sheriff is to serve this writ on the head of thfe Corpora- 
 tion sued, as, in this case, on Eobt. L. Caruthers ; or in his ab- 
 sence, on the Secretary, Cashier or Treasurer ; or in the absence 
 of all these, on any Director or Trustee ; or in their absence, on 
 the Chief Agent of the Corporation. But process cannot be 
 served on any of these officers, or agents, out" of the county in 
 which they reside. Even a foreign Corporation may be sued 
 here, and the process be served on any agent, or officer, who may 
 be residing here. N. S. 106 ; 1850, ch. 136 ; 1852, ch. 136. 
 Upon the return of the process, the same proceedings take place 
 as in the case of suits by and against individuals. 
 
 Seo. 218. To prevent Malversation of Oorporations or 
 Trustees. The Attorney General of the State, under the direc- 
 tion of the Legislature, or with the concurrence of the Gover- 
 nor, may file a bill in the Circuit or Chancery Court, against 
 any Corporation, or the officers thereof, or the trustees of fanda 
 given for public or charitable purposes, to prevent them by in- 
 junction, from assuming any powers not granted, and to bring 
 them to account, for any mis-management of the funds entrusted 
 to them ; to remove such officers, and appoint receivers, and to 
 make such orders as may be necessary for th>o ends of iustice, 
 N. S. 107, Sec. 8. 
 
 Seo. 219. Dissolution of Corporations. In like manner 
 the Attorney General may hie a bill against any Coi-poration, 
 in the name of the State, in the Circuit or Chancery Court, to 
 dissolve it, on the ground that it has by misusing, or not using 
 its powers, forfeited its charter. N. S. 106, Sec. 6. These bills 
 
139 
 
 may 'be filed, either by ordei* of the Legislature, or upon the 
 knowledge of the Governor or Attorney General, and with 
 their concun-ence, or upon written information on oath, given 
 by any individual, called a relatof. In the latter case, the re- 
 lator is to give bond and security, for costs, if the court see 
 proper to require it ; Sec. 6, and issues of fact may be made up 
 and tried by a jury. Sec. 6. 8. 
 
 The bills must be filed in the county where the, meetings of 
 the members or officers of the Corporation have usually been, 
 or ought to have been held, and the court is to make such or- 
 ders, as may be necessary to give all the parties interested, 
 notice. ' 
 
 TEUSTEES. 
 
 Sec. 220. When a Trustee dies, or fails, or refuses to act, the 
 Chancery or Circuit Court may appoiiit a successor. So for 
 good reasons presented in the Trustee's 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. <fe N". 
 693; 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. 221. Suits on Office Bonds. All subordinate or ex- 
 ecutive officers, and aU who are appointed by the courts to fidu- 
 ciary positions, such as administrators, guardians, &c., and all 
 who are required to give security in the prosecution or 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 
 are usually regulated by the statutes requiring them, and hence 
 they are called statutory hoi^iAs. On these, peculiar remedies 
 are given, such as judgment by motion. Scire facias, &c. — 
 Bonds not so required by statute, but which men volunta- 
 rily enter into in the course of their dealings, are called volun- 
 tary; or common law bonds, because they derive their efficacy 
 from the common law, and from their being voluntarily entered 
 into. The peculiar reniedies which are given by the statutes on 
 these statutory bonds, could not be resorted to, unless the bonds 
 were taken in conformity to the statutes; but as they were 
 common law bonds, the obligees or beneficiaries in them; • 
 must resort to the common law remedy by regular pro- 
 cess, pleading, &c. It was provided by the Act of 1844, chap. 
 103, Sec. 14, that- the bonds of collecting officers should be con- 
 sidered statutory bonds, although not taken in exact conformity 
 9 
 
130 
 
 to the statutes. N. S. 263, And now, by the Act of 1852, 
 chap. 256, Sec. 9, (Pamphlet Acts, 422), " all bonds' and re- 
 cognizances that may be deemed good and valid, as common law 
 bonds and recognizances, shall be deemed statutory," 
 
 Suits may be maintained on these bonds in the name of the 
 obligee for the use of the party, for whose benefit they were 
 given. Thus, an administrator's bond is payable to the State. 
 & a distributee oi* creditor sued him and his sureties on the 
 bond, the writ would direct the sherifi" to summon the defend- 
 ants "to answer the State of Tfennessee for the use of James 
 Hart, of a plea, &c." 
 
 The Declaration would run " The State of Tennessee, for the 
 use of James Hart, complains of A. & B., of a plea that they 
 render unto said State, ten thousand dollars, which they owe 
 to &c." 
 
 Sec. 222. In any other case where one has 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, and it has 
 not been endorsed to him, or an open account, which cannot be 
 transferred, he may sue in the name of the original creditor for 
 his use. Thus, suppose James Hart to be the payee of a note 
 on John Smith, and David Long buys it, without assignment, 
 the Writ would be to summon John Smith to answer James 
 Hart for the use {or who sues for the use) of David Long, of a 
 plea, &c. 
 
 The declaration would be "James Hart, for the use {or who 
 sues for the use) of David Long complains, &c." The Decla- 
 ration proceeds without noticing David Long any further j 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 that fact, he must make affidavit to that efiect, and 
 have a rule on him to show cause why the suit should not be 
 dismissed on that account. On this rule he may show that he 
 bought the interest in the debt, and that will be authority 
 enough for using Hart's name. 5 Yer. 261. K the defendant 
 should plead a set-off against Hart, the original creditor, or pay- 
 ment to, or a release by him, then the plaintiff will have to re- 
 ply that he purchased the debt, that tiie set-off or release was 
 acquired, or the payment made, after he purchased it, and after 
 the defendant had noticp of that fact. 
 
 The beneficiary, or cestui que use, in the suit, David Long, is 
 considered the real party. If he loses the suit, judgment is 
 rendered against him and his prosecution bail, for costs. 0. & 
 N. 189. The death of the trustee does not abate the suit, or 
 render it necessary to revive it in the name of his representa- 
 tive. C. & N, 66. 
 
131 
 
 COSTS m CIVIL CASES. 
 
 Ssq. 223. The general rule of costs is, that the successful 
 party shall recover against his adversary, aU the costs which 
 have accnied in the cause. But in actions for assaults, , and 
 iaatteries, false imprisonment, malicious proseqution, and for 
 damages occasioned by the overflowing of water in consequence 
 of the erection of any useful waterworks, if the pkintiif does not 
 recover more than five dollars, and in the action of slander, if 
 he recovers less than five dollars damages, he recovers no more 
 costs than damages. C. & N. 188, 190, 1852, chap. 146. So 
 inU'i locutory costs, that is, such as are adjudged against either 
 party on a continuance, setting aside a nonsuit, granting a new 
 trial, amendments, and other ineidental rales, can never be 
 taxed to the other party, although he may ultimately lose 
 the suit. 3 Hum. 169; 6 Hum. 26. Nor can witnesses be 
 taxed who are summoned to prove inadmissable facts, (4 Yer. 
 461;) or who attend without being summoned, (2 Yer. 230;) or 
 who do not attend the trial, although they have attended up to 
 that time, (1 Ten. 424;) or who attend, but are not introduced, 
 unless the other party has witnesses attending also who are not 
 introduced, 5 Hum. 5Y3; 6 Hum. 23; or who are examined, and 
 prove nothing; or, more than two witnesses to a single fact. 0. 
 & N. 711. In these cases, where costs cannot be taxed, and no 
 interlocutory judgment has been rendered for them, the oflScers. 
 and witnesses must look to the party for whom they render the 
 service, for their fees. 
 
 Sec. 224. Judgment and Execution for costs. The judg- 
 ment for costs is not for any specific sum, but generally iox the 
 costs of the suit. 5 Hum. 44. The compensation that oflScers 
 and witnesses are entitled to for any item of service rendered, 
 and expenditure incurred in the cause, is regulated by .statute; 
 and the Clerk is required to make out his bill of costs by the 
 statutory fee biU, setting down in his , execution docket, each 
 item separately, in words at length, except the amount, which 
 is in figures. If they "are not then paid by the party from 
 whom, they are due,'' that is, by the party against whom judg- 
 ment is rendered for them, he is to issue an execution against 
 him. C. & N. 156, sec. 9; M. & Y. 45. On this execution the 
 bill of costs is to be . endorsed, as it stands on the execution 
 docket, 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. 225. Taxation of Costs. In all those cases where 
 judgment goes against a party for costs, and there are witnesses 
 in attendance, who cannot be legally taxed against him, or there- 
 
132 
 
 is any other item proposed, or likely to be taxed against him 
 improperly, he should move that the clerk be instructed not to 
 tax them. If costs are improperly taxed against him on 
 the execution, he may at the next term move to correct the tax- 
 ation of costs, by striking out the objectionable items, or quash- 
 ing the execution as to them ; and if in this case he has satisfied 
 the execution in full, 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 super- 
 sedeas to stay the execution until the next term, and thereby 
 avoid the payment of the fees wrongfiiUy 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 judginent is affirmed, execution is issued 
 by the Clerk of the Supreme Court, the costs are paid to him 
 and he pays over the costs of the Cburt below to the Clerk of 
 that Court, who distributes them to the persons entitled. N. S. 
 62. The Supreme Court cannot correct the taxation of costs in 
 the Court below, unless it appears on the face of it to be errone- 
 ous. The losing 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-mled, and then the Court above 
 will act upon the question. 3 Hum. 205, 4 Yer. 561. 
 
 Sec. 226. Remedy for costs. When the plaintiff recovers 
 judgment against the defendant, and it appe3,rs from the return 
 of the execution, that the plaintiff's costs cannot be made out 
 of the defendant, then the officers and witnesses may have judg- 
 ment against the plaintiff, by motion, for his costs. 1848, ch. 
 62. By the plaintiff's costs, is meant the fees of the ofBcers 
 and witnesses for services rendered him. For instance, the fees 
 of the Clerk for the original writ, subpoenas, and all other pro- 
 cesses issued on his application, and all entries made on his mo- 
 tions or in his behalf; the fees of the Sheriff for executing those 
 processes ; the fees of witnesses attending in his behalf. The 
 defendant's costs are the fees due for similar services rendered in 
 his behalf. The statute of 1848 does not allow a judgment by 
 motion against the defendant for his costs, where he has re- 
 covered judgment against the plaintiff and from the return of 
 an execution it appears they are no|; to be made out of the 
 plaintiff. Prior, however, tb this act, it was decided that offi- 
 cers and witnesses might recover their fees in an action of debt 
 or assumpsit, against the successful party in a suit for services 
 rendered him, if the other proved unable to pay them. 4 Yer. 
 
 / Sec. 227. Remedy against Sheriff. We have seen (sec. 
 126) that the plaintiff may have a summary judgment against 
 
133 
 
 the Sheriff and his sureties for not returning an execution, or 
 not paying over monies collected thereon, or for a false or insuf- 
 ficient return. Such 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 Sherifi" 
 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 thfe 
 money collected, the witnesses or any person entitled to costs, 
 on giving him three days notice of the time, may "obtain judg- 
 ment on motion s^gainst him for the amount due them. Each 
 one in such case would have to obtain a separate judgment, as 
 his claim is several. But the Clerk may include all the cases 
 of delinq^uency in regard to his fees, in one nofice and motion. 
 The judgment, however can only be rendered against the 
 Sheriff, not including his sureties. If the sheriff has paid the 
 money over to the Clerk, the other persons entitled to cbsts, may 
 in like manner have judgment against the Clerk. C. & IST. 157; 
 4 Yer. 569; 5 Hum. 515. 
 
 The Clerk and his securities are liable to the plaintiff's judg- 
 ment by motion for money paid into his hands upon any judg- 
 ment 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 1807. 
 
 Sec. 228. Witnesses fees. A witness who is compelled to at- 
 tend out of his county, is allowed one dollar per day for his at-, 
 tendance, and the same sum for every twenty-five miles he may 
 have to travel in going to and returning from tile 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 
 travelling, where he lives more than ten miles from the court 
 house. N. S. 309. 
 
 A witness may recover his fees of the party who summons 
 him at the end of every term he attends, if lie 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 vacart:ion, 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 pi'ove 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 th&t one. 2 Yer. 323. 
 
 When 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. 0. & N. 714; K summoned 
 by bofcparties he is entitled to but one attendance. 2 Yer. 230. 
 
134: 
 
 Sbo. 229. T^iM.o-B^GVBiEYA.ciAs against witness on forfeit- 
 ure against Mm. The form of the Scire Facias, and a disciis- 
 sion of its essential qualities may be seen in 9 Yer. 322 ; 11 
 Hum. 72. It is stated in Sec 68, 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 aflBdavit of 
 the witness against whom the forfeiture was taken, and the coun- 
 ter 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 notice 
 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 execution 
 for the forfeiture. So would the Court, on motion, grant final 
 judgment by default, and award execution against any defend- 
 ant who failed to appear and show cause why he had failed to 
 pay a debt, which the plaintiff alleges in his declaration he has 
 not paid. But if -he pleads to the Scire Facias or declaration, 
 any fact which shows a good reason for his failure, the Court 
 cannot grant judgment until a jury determines the truth of the 
 defence. 
 
 Sec. 230. Compromise and dismissal. 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 day's attendance at the next term, but in the latter 
 •case, all other costs shall cease. O. & N. 190, 711. 
 
 CHAPTEE X. 
 
 ■CEIMmAI, PE00EEDING3. 
 
 'Sse^ '2'31, These are commenced either before a Justice of 
 the Peace, or in the Circuit Court, except in the few places 
 where Chea-e is a Criminal Court. Before a Justice, the first 
 step, usually, is by warrant issued on the evidence of some per- 
 son, sweasring 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, 
 
135 
 
 because the State is always plaintiff, the person applying for it 
 being merely a. proseoutof. As the State is plaintiff, 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 said 
 Wilson County, ) County. 
 
 A. having on oath informed me that B. did on the first day of 
 January 1852, in the county aforesaid, unlawfully commit an as- 
 sault on C. I command you in the name of the State, forth- 
 with 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 under 
 my hand and seal, the Ist Jtdy, 1862. 
 
 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 Constable, 
 he proceeds forthwith to take the defendant and bring him be- 
 fore some Justice. If the defendant resides in or has fled to 
 any other county in the State, the Justice may issue his war- 
 rant to the Sheriff or any Constable of that county, who may 
 bring the defendant before any justice of the county where the 
 offence was committed. G. &TS. 241. 
 
 Sec. 232. Examining Oourt. 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 sub- 
 mits to it he is not to be sworn. If the justice considers the 
 evidence insufficient, he discharges the defendant, and if he con- 
 eiders the prosecution frivolous and malicious he taxes the prose- 
 cutor with the costs, including both the costs on the part of the 
 State and the defendant. 1852, ch. TO. K he thinks the de- 
 fendant guilty, he enters his judgment to that effect on his war- 
 rant. 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. 699: 
 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 cases, where the proof is positive, or the 
 
136 
 
 circtimstances are very strong. Where the offence is bailable, 
 if the defendant does not give bail, he must be committed. 
 The writ by, which he is committed is called a Mittimus, which 
 is directed to the sheriff or jailor, and reciting the canse of 
 his commitment, commands the officer to keep him in jail. 
 ]Sr. S. 320. 
 
 When he is committed for want of bail, either the committing 
 magistrate or the sheriff may take bail at any time, and release 
 him from his imprisonmeiit. C. & N. 121. But if he is com- 
 mitted because the justice thinks 'the offence not bailable, no 
 officer can bail him except the Circuit Judge. The prisoner 
 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. 233. K, instead of being committed, the defendant is 
 ready to give bail, he and his sureties enter into a bail bond, or 
 reoognizanoe, in such amount as the justice thinks proper to 
 require, conditioned for his appearance at the next term of the 
 court to answer the charge. 
 
 EEOOGNIZAI^CE. 
 
 " A, B, and C came before me, this first day of July, 1852, 
 and acknowledged themselves indebted to the State of Tennes- 
 see, the said A in the sum of five hundred dollars, and the said 
 B and C in the sum of five hundred doUars jointly and severally : 
 to be void if the said A make his personal appearance before 
 the Circuit Court of Wilson county, at the court-house in Leba- 
 non, on the Thursday after the first Monday in August next, to 
 answer the State on a charge of an assault and battery on D, aiid 
 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, and C, ac- 
 knowledge ourselves indebted," &c., and Hgned by the obligors 
 and tested by the justice. 
 
 The justice is also to recognize the witnesses to appeal" on the 
 second day of the term and give evidence, and the prosecutor to 
 appear and prosecute, and also to give evidence, if he be a wit- 
 ness. 
 
 The justice is to retui'n 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. & IST. 426. The proserfutor or the defendant may ob- 
 tain subpoanas for witnesses, either from the committing justice 
 or from the clerk, after the proceedings are filed in his office. 
 The subpcEnas may be directed ,to the sheriff or constable of 
 
137 
 
 any county in the State, and are returnable to the Circuit Court. 
 C. & ISr. 240. 
 
 Sec. 234. 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 silfflcient to sustain 
 the charge, he must file an indictment, as follows : 
 
 INDICTMENT FOE ASSAULT AND BATTEEY. 
 
 State of Tennessee, } Circuit Court, August Term, eighteen 
 Wilson county. ) hundred and fifty-two. 
 
 The grand jurors for the State of Tennessee, elected, empan- 
 nelled, 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 aiid 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 Jamea 
 Hart, and against the peace and dignity of the State. 
 
 WM. L. MAETIN, 
 Att'y Gen'l 5th Dist. 
 
 On the back of the indictment he writes the following endorse- 
 ments, except the clerk's name : 
 State \ 
 
 vs. ^ > Indict. — James Hart, prosecutor. 
 John Smith. ) 
 
 A, B, and C, witnesses, sworn in open court and sent before 
 the grand jury, 4th August, 1852. W. HAET, 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: 
 " You solemnly swear that the eridence 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 constable of the 
 grand jury, who takes it and the witnesses before that body. 
 The defendant is not at liberty to send any witness to the grand 
 jury: they can only examine the -witnesses sent before them by 
 the Attorney General, on the part of the State. The Attorney 
 General has a right to be with them, and assist them in con- 
 ducting their examinations. If twelve of them consider the 
 charge sustained by the evidence, the foreman makes the follow- 
 ing indorsement on it: "A true bill. Millard Fillmo?e, fore- 
 man ef the grand jury." They then come into court, and their 
 
188 
 
 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 indictment to the judge, who inspects the 
 indorsements to see that they are correct, and returns them 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 indorsed by the foreman " not a true biU," 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. 
 
 Seo. 235. Indictment ex officio. K the prosecutor does not 
 appear to prosecute, and no one else will prosecute, the State's 
 attorney cannot file an indictment without the order of the court 
 to file one ex officio, which order will always be made on his 
 motion, whenever the court is satisfied from the testimony of a 
 witness sworn in open court, or from "his personal knowledge 
 that an ofience has been committed," and that no one will be- 
 come prosecutor. C. & JST. 241 : N. S. 136. 
 
 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 of a coroner returned to court finding one guilty 
 of homicide. In cases of gaming, where ajdefendant recog- 
 nized by a justice or judge to appear for a misdemeanor com- 
 mitted in his presence. 0. & N. 385. For the violation of 
 graves. C. & N. 241, 329. Inciting slaves to insubordination. 
 0. &. N. 242, 331. For tippling. N. S. 292, sec. 13. For ille- 
 gal voting. N. S, 165, sec. 14, and some others. In these cases 
 he acts upon hie belief that the evidence wiU sustain the charge, 
 and that the public good requires him to act. He proceeds as 
 when he is ordered by the court to file it. 
 
 Sbo. 236. 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 battery (or 
 whatever the offence may be,) or they will forfeit according to 
 recognizance (or subpoena). A judgment nisi is rendered for 
 the penalty, and a Scire Facias issues, returnable to the next 
 
139 
 
 term, to give the delinquent an opportunity to show cause, if any 
 he has, why the judgment should not be rendered absolute. 
 
 Sec. 237. Prosecution commenced in court. K a man wants 
 to prosecute another, he need not apply to a justice for a warrant, 
 but he may apply to the State's attorney to file an indictment, 
 who is bound to do so, if he is satisfied that it can be sustained. 
 In this case he endorses the name of the prosecutor 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. 234. 
 
 Presentmfint. K any one of the grand jmy has personal 
 knowledge that any person has committed an oflFence, 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, except 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, 396 : 9 Yer. 389 : K S. 136, sec. 4 : 6 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 
 exceptions: 1. In the case of gamA,ng, which is playing at, bet- 
 ting upon, or encouraging any game of hazard or address, for 
 money or other valuable thing, if the grand jury have a well 
 grounded helief that the offence has been committed, they are 
 bound to demand a subpoena for any witness, whom they may 
 believe 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 nothing 
 but the truth."- The constable then takes him before the jury, 
 and he is bound to inform them of any cases of gaming of which 
 he may have knowledge, and which occurred at anytime or plEice, 
 about which they may examine him. C. & N. 359, 360. 
 
 2. Betting on elections, illegal voting, and unlawful conduct 
 in conducting elections. Upon a well grounded belief, the jury 
 may have the inspectors, clerks, and officers holding the election, 
 subpoenad as witnesses and sworn to give evidence before them 
 of all the knowledge they may have of dtoy such ofiences. N. S, 
 165, sec. 14, 
 
 3. Tippling, or retailing spirits unlawfully. 
 
 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. 
 
140 
 
 Sec. 238. Capias. When an indictment or presentment is 
 returned against a defendant, who is not in jail or under a re- 
 orgnizance to attend, a capias is ordered to issue immediately, 
 returnable to the same term, if it is thought expedient ; other- 
 wise it issues as soon as the court adjourns, and is returnable to 
 the next term. Criminal process may issue at any time, and be 
 made returnable to any day of the term. 0. & N . 547, sec. 10. 
 
 CAPIAS. 
 
 THE STATE OF TENNESSEE. 
 
 To the Sheriff of Wilson county : 
 
 You are hereby commanded to take the body of John Smith, 
 and have him before the Circuit Court of Wilson county, at the 
 court-h6use in Lebanon, on the first Thursday after the first Mon- 
 day in December next, to answer the State of Tennessee on a 
 charge of assault and battery, and have you tlren and there this 
 writ. Witness, WiUiam Hart, clerk of said court at office in 
 Lebanon, the first Monday in August, A. D. 1852. 
 
 WM. HART, Ol'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. AU offences are bailable in our law except murder in the 
 first degree. For any inferior offence the sheriff may take bail, 
 in a sufficient sum to secure the defendant's appearance. C. & 
 N". 119. If he takes 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. 233. The sheriff 
 returns the bond to court with the writ endorsed, " Executed 
 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 nolle prosequi en- 
 tered 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 otherwise. 
 
 Seo. 239. Bail may at any time take the defendant and sur- 
 render him to the sheriff, who must thereupon take other bail, 
 or commit the defendaftit to jail. C. &*'N. 118, sec. 15, 120: 
 Act 1827. 
 
 Seo. 240. It is the duty of the court to set apart some day of 
 the term for the trial of criminal cases. C. & N. 240. When 
 that day, called State's day., 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 nolle prosequi in a case, 
 and then the clerk makes the following entry : 
 
141 
 
 State \ 
 vs. > Indictment. Assault and Battery. 
 
 John Smith,. J 
 
 Came the attorney general, and with the assent of the court, 
 says he -will no farther prosecute the defendant. It is therefore 
 ordered by the court that the defendant be discharged, and that, 
 the State pay the coats of this prosecution. 
 
 If the State's witnesses do not appear, he may take forfeitui-esL 
 against them, and also have an attachment against them to 
 bring them in to testify, if, on affidavit of the prosecutor or him- 
 self, it appears they are wilfally absent to avoid giving evidence. 
 The defendant may take the same course with his witnesses. 
 
 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. V Forfeited recognizance. 
 
 John Smith & David Smith,) ' 
 
 Came James L. Scudder, the Attorney General of the State,- 
 and the defendant, John Smith, being solemnly called to come 
 into Court and answer the State 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: 
 nifeance, being also solemnly called to bring into Court here, the 
 body of said John Srciith, to answer the State on said charge, 
 according, to the, 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 thous- 
 and dollars, and of the said David Smith one thousand dollars, 
 according to the tenor of the said recognizance, unless they 
 show sufficient reason for their default at the next term of this 
 Court. 
 
 On this judgment a Scire Facias issues against each defend- 
 ant on the return of whichj executed, the defendants may plead 
 or demur to it, or the Court may, if it appears the defendant 
 was in no fault, set aside the forfeiture on affidavits. C. & ISF. 338; 
 6 Yer. 354; 5 Yer. 183; 4 Hum. 226; Meigs 23% 473, 93'; 3 
 Yer. 280; 9 Yer. 386. 
 
 Notwithstanding this forfeiture, the defendant is still liable tg 
 a Capias, and a Capias and Scire Facias will both be running 
 against him at the same time. Nothing but an acquittal or con- 
 viction or nolle prosequi discharges him from the prosecution. 
 He may have to pay the forfeiture for not appearing, a«i also 
 suffer the penalty of his offence, . But generally when the de^ 
 
142 
 
 fendant is taken and brought to trial, the Court will remit the 
 forfeiture, on payment of the costs. 
 
 Seo. 241. Arraignment. When the defendant is by any 
 means brought into Court upon an indictment or presentment, 
 the first step is 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 
 Attorney General then reads the indictment to him, and calls 
 upon him to say whether he is guilty or not guilty. This cere- 
 mony is only observed when the indictment is for a felony. In 
 misdemeanors it is simply announced to the defendant that 
 he is indicted for a certain crime, and he is asked whether he is 
 guilty or not. 
 
 Submission. If the defendant pleads guilty, it is called a 
 submission. K. he submits in a case of misdemeanor, the 
 Court proceeds to examine witnesses on both sides as to the 
 character 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. 67, sec. 
 14. Where the amount of the fine is fixed by statute, that, of 
 course, may be adjudged by the Court. In some cases,, fine is 
 the only penalty ; generally, however, the Court may impose 
 imprisonment 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 and 
 maximum fixed by the statute. C. & IT. 241. If it is a case of 
 homicide, a jury must decide the degree of guilt. C. & N. 317, 
 sec. 3. 
 
 Seo. 242. Pleading. The defendant may demur to the in- 
 dictment for insuflBciency. K his demurrer is overi'uled, he has 
 a right to plead in a case of felony, but not in a case of misde- 
 meanor, but by leave of the court for good reasons. 2 Yer. ,472. 
 If he does not demur, he may take advantage of insufficiency 
 of the indictment on the trial. He may move to quash the in- 
 dictment, for insufficiency, but the Court is not bound to quash 
 it even if it is detective. Meigs 192. He may plead in abate- 
 ment, that he is not indicted by his true name, that one of the 
 grand jurors was not qualified, and other things. 1 Meigs Dig. 
 ^04. 
 
 He may plead a former conviction or acquittal for the same of- 
 fence. 9 Yer. 333, 357, 375 ; 6 Hum. 410 ; 2 Yer. 24. And a 
 conviction and punishment for one felony is a good plea to an 
 indictment for any other felony not capital, committed before 
 that conviction. M. & Y. 122. 
 
143 
 
 The next apd the common plea is not guilty. It is pleaded 
 orally and entered by the Clerk on the minutes, as follows: 
 
 ENTRY OF AEKAIGNMENT 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 there- 
 in charged, and for his trial puts himself on the country. » And 
 the Attorney General doth the like." 
 
 Two pleas are not allowed as in civil cases. 2 Ter. 248 ; Peck 
 165. Nor can a defendant appear and plead by attorney, ex- 
 cept in misdemeanors, and only then when his personal appear- 
 ance is waived by the Attorney Genera^. 
 
 Gontinuance. The case may be continued on the same 
 grounds and in the same way as in civil cases. There is this 
 additional ground in a criminal case ; if the defendant will 
 make oath that there exists too great an excitement to his pre- 
 judice, to come to trial at the first term, it is good cause for a 
 continuance for that term only. C. & N. 701. 
 
 On a continuance, the defendant must enter intorecognizanc© 
 for his appearance at the next term, or be committed to jail. 
 All the witnesses who are attending under recognizance, mutet 
 be again Tecognized to appear at the next term, but security can- 
 not be required of them, unless, perhaps, upon affidavits, show- 
 ing very satisfactorily that they would not likely attend, such as 
 would be sufficient to warrant an attachment. "Witnesses who 
 are attending under subpoena, 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 impartial 
 trial cannot be had. He may change the venue to any adjoining 
 county, that he considers free from exception, whether in the 
 same or a different circuit ; and either with or without the de- 
 fendant's consent. The defendant and the witnesses are to be 
 recognized to appear at the Court to which the venue is chang- 
 ed; and the Clerk must make out and file there a complete 
 transcript of the record. 0. & N. 701 ; N. S. 130, 1850 ch. 94. 
 
 TEIAL. 
 
 Sec. 343. 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 
 
144 
 
 afterwards and brought in during the term, it atill stands for 
 trial, but the Court would be indulgent to an application for a 
 continuance. , 
 
 JUET. 
 
 The first step in the trial is for the Sheriff to furnish a pan- 
 el of jurors, taking first the original panel, if they are not 
 eug^,g|gd in some other trial, and adding to them bystanders 
 enough to make the number equal to the number of peremptory 
 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 ^ther felonies twenty-four, and the State 
 has ten in all felonies. So that a panel in misdemeanors is 
 twenty-two ; in homicide fifty-seven ; in other felonies forty- 
 six. 0. & N. 424. When this panel is furnished, the defend- 
 ant 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 defend- 
 ant requires them to be ballotted for, and in that case the Clerk 
 writes their names on slips of paper and 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 challeng- 
 ed. C. & N. 421, sec. 13. , K they are challenged for cause, 
 then they are sworn and examined as to the alleged cause. They 
 must have the same c^ualifieations in criminal as in civil cases. 
 See Sec. 78. 
 
 It is usual in trials for felony, for the defendant to challenge 
 the whole panel 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 
 lipuse-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 afiirmative, 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 panel in the boxis exhausted before twelve jurors are 
 obtained, then the Sheriff must return another panel, composed 
 of the same number as the first, subtracting therefrom the num- 
 
145 
 
 ber 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 &ath, Sec. 79. These solemnities are not 
 in practice observed in trials for misdemeanors, but in law the 
 parties have the same right to all the means of obtaining an 
 unexceptionable jury in them as in felonies. 
 
 Sec. 244. "WTien the jury are sworn, the next step is for the 
 Attorney General to read the indictment to them, and the de- 
 fendant'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 special mo- 
 tion of one of the parties. The trial progresses as in civil cases. 
 Tne defendant, in trials for felony, must be always present; the 
 jury must be kept together, under an officer sworn to keep them 
 together, separate from all other persons, to permit no one to 
 speak to them on any subject, nor to speak to them himself in 
 relation to the trial. In a case of felony the jury cannot be al- 
 lowed to separate even by the consent of the defendant and the 
 Attorney General. It vitiates their verdict. 1 Swan 256. Should 
 they return into court to hear the evidence or receive an expla^ 
 natory 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, excejft 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 
 there is evidently no possibility for them to agree, where the 
 defendant's misconduct gives him an unfair advantage, and put& 
 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 lawfiilly tried again, but must be discharged. 10 Ter. 532 ; 
 1 Hum. 253, 102 ; M. & Y, 278 ; 3 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 appeai to the Supreme Court until he is convicted. 
 
 NEW TKIAL— BILL OF EXCEPTIONS— MOTION IN 
 
 AEEEST. 
 
 Seo. 245, N'ew Trial. K the defendant is acquitted, there- 
 can be no new trial in any case. 1 Tenn. 334 ; Meigs 190 ; 6- 
 Yer. 360. Nor can he be indicted again, if he could have been 
 10 
 
146 
 
 convicted on the first indictment, on the facts stated in the last. 
 9 Yer. 357, 375. ^ 
 
 K the defendant is 'convicted, he may move for a new trial 
 tipon the same grounds as in a civil case. ' See Sec. 94, p. 60. 
 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 obvi- 
 ously appeared that he had formed an opinion, yet the Court re- 
 ceived 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 Ter. 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, wiU not 
 vitiate the verdict. 4 Huin. 27. See on this subject, 1 Meigs 
 Digest 392, 399. 
 
 if there are two defendants one may have a new tritl. If 
 there are several counts in an indictment, and the defendant is 
 convicted on one and acquitted on the others, he may have a 
 new trial on the former, but he never can be again tried on the 
 latter. So on an indictment for mui'der, if he is found not guilty 
 of murder but guilty of manslaughter, he may hav»a new trial 
 for manslaughter, but can never be tried for murder. 9 Yer. 
 333 ; 6 Hum. 410. 
 
 Bill of Exceptions. If the motion for a new trial is over- 
 ruled, the defendant, if he wishes to appeal, should file a bill of 
 exceptions. This is done in all respects, as in civil cases. See 
 Sec. 97, p. 62. 
 
 A motion in arrest of judgment may be made as in Sec. 98, 
 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 sustain- 
 ing a motion to quash, or a demurrer; the defendant is dis- 
 charged, 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. 
 
 Sbo. 246. 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 ^ 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 
 
147 
 
 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, which 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 Ijeing 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 liave an appeal in the nature 
 of a writ of error, or a writ of error from the judgment of the 
 Circuit Court, sustaining a demurrer to the indictment, or a mo- 
 tion to quash it, or in arrest of judgment, or on a special verdict, 
 or on- any other final judgment in favor of the defendant, ex- 
 cept on a verdict of acquittal. Meigs 190 ; 6 Yer. 363 ; M. &■ 
 Y. 137, 168. 
 
 Either the State or defendant may appeal fi-om the judgment 
 of the Coiirt on a submission by the defendant. For the Court 
 may inflict punishment which is illegal or too severe. 
 
 PEOOEEDINGS IN THE SUPEEME COURT. 
 
 ■" Sec. 247. It is the duty of the Clerk to send iip a traiiscript 
 of the record, to the Clerk of the Supreme Court, by mail or 
 otherwise. N. S. 137, Sec. 5. K the defendant has given a 
 recognizance, 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 receive 
 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 Sher- 
 iff of the county where itis 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 custo- 
 dy, and thereby discharges the bail ; and during the argument 
 oi' the case, he is, on the recesses of the court, committed 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 ihay 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 wUl do so when they are 
 satisfied that the facts do not warrant the verdict. M. & Y. 
 
148 
 
 294; 2 Hum. 440 ; 3 Hum. 289; 4 Hum. 270; 6 Hum. 128, 
 436, 552. 
 
 Seo. 248. 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 the defendant's 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. But if 
 they see in the record sufficient evidence of his guilt, they may 
 recognize or commit him to appear again at the Circuit Court 
 to answer the charge, on a sufficient indictment. 
 
 By the Act of 1852, ch. 256, when there has been a trial on 
 the merits, the failure of the Clerk to record the plea of not 
 guilty, the omission to mark a prosecutor on the indictment, 
 the omission of the Clerk to send up the caption, or a defect in 
 the caption of the record, or his omission to enter on the min- 
 utes that the Grand Juiy had returned the indictment into open 
 court, or a failure to state in the record that the venue was 
 proved, shall not be causes of reversal. 
 
 Sec. 249. When the judgment is affinned, the Supreme 
 Court proceeds to have the sentence below executed. If the 
 penalty is death, they pronounce the sentence, and have the de- 
 fendant hung, either where the court is held, or in the county 
 where the offence was committed, at their discretion. But upon 
 their certificate that there were extenuating circumstances, the 
 Governor may commute the punishment of death to imprison* 
 inentfor life in the penitentiary. N. 8. 128. 
 
 In penitentiary cases, they send the convict to the peniten- 
 tiary. In misdemeanors, they fine or imprison, usually accord- 
 ing to the judgment of the Circuit Court. They may, howev- 
 er, reverse the judgment in part, by remitting the imprison- 
 ment altogether, or by reducing the fine or imprisonment. 
 
 Seo. 250, 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 
 
149 
 
 the fine and costs are paid, or sScured by some friend confessing 
 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 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 for 
 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 judgment, by motion, against the principal. 
 Sec. 132, p. 80. 
 
 K imprisonment is also a part of the sentence, insert in the 
 entry, after the asterish*' the period of imprisonment, as one 
 month, and, the balance of the entry will be the same. 
 
 If he does not give security, he will be in the Sheriff's custo- 
 dy as if he were taken on a Ca. Sa., and may take the benefit of 
 the old laws for the benefit of insolvent debtors, which are now 
 rendered nugatory in civil cases, by the abolition of imprison- 
 ment for debt in 1842, The defendant takes advantage of 
 those laws, in two ways. 1. By giving ten days notice to the 
 Attorney General, that he will take the insolvent oath before a 
 Circuit Judge, or two justices at a given time. He petitions 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 sur- 
 render his property, or take the above oath. If he does not 
 appear and do one of the three things stipulated, judgment is ren- 
 dered against him and his surety, on the bond. 0. & N. 393 ; 
 1 Yer. 494; 2 Yer. 247 ; 4 Yer. 166, 582 ; 6 Hum. 391. 
 
 Seo. 251. Verdict and judgment on a plea of not guilty. 
 The entry of the arraignment and plea is set out in Sec. 242. If 
 the jury is empanneUed immediately, proceed thus : 
 
 " Then came also ^ jury of good and lawfiil men, to-wit : 
 A. B. and C, who being elected, tried and sworn the truth to 
 
150 
 
 speak on the issue joined, upon their oath do say, that the de- 
 fendant is not gnilty in manner and form, as charged in the in- 
 dictment.* Therefore, it is considered by the court that the de- 
 fendant 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 judg- 
 ment 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 penitentiary 
 of the State five years. It is therefore considered by-the Court 
 that the defendant be imprisoned five years in the common jail 
 and penitentiary house of the State, that he be disqualified for 
 holding office and be rendered infamous, and that he pay the 
 costs of this prosecution. It is further ordered that the Sheriff 
 of Wilson county forthwith convey, the defendant to the peni- 
 tentiary. 
 
 If it is an indictment for homicide, the jury must find wheth- 
 er it be murder in the first or second degree, or manslaughter. 
 If they find it the first d igree, the verdict runs thus : 
 
 "Do say that the defendant is guilty 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 has 
 anything to say why the Court should not proceed to judgment 
 against him on the verdict of the jury ? who nothing furthei* 
 says, unless as he before has said. It is therefore considered by 
 the Court that the defendant John Smith be taken to the jail of 
 Wilson county, from whence he came, and that he be taken from 
 thence by the Sheriff of Wilson county on Friday tlie first day of 
 October, 1852, to some place within one mile of the Courthouse 
 in Lebanon, and there between the hours of 12 and 2 o'clock, 
 afternoon, 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 
 BO 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 
 imprisonment in the penitentiary for life, N. & C. 128] 
 
151 
 
 VEEDICT— MUEDER IN THE SECOND DEGEEE. 
 
 " Say, they find the defendant not guilty of murder in the first 
 degree, but that he is guilty of murder in the second degree, in 
 manner, &c., and they further say that he be imprisoned in the 
 penitentiary of the State fifteen years for said ofience." 
 
 MANSLAUGHTEE. 
 
 "Say, that the defendant is not guilty of murder in manner, 
 &c., but that he is guilty of the feloniously slaying of the afore- 
 said James Hart, and that he be therefor imprisoned in the 
 State penitentiary five years." 
 
 Sec. 253. Where property is stolen, the jury, on convicting 
 the defendant, shall ascertain whether it has 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 that 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 
 hg^ been destroyed, or any person been defrauded by any of the 
 effences enumerated in the penal code of 1829, the jury shall 
 ascertain his damages in their verdict, and the Court shall give 
 judgment therefor. C. & N. 328, sec. T9. 
 
 Sec. 253. Execution. When the judgment is for fine and 
 costs, execution issues against the defendant's estate. K he has 
 not given security for it, a Capias may issue. K the judg- 
 ment includes imprisonment, and the defendant is in custody, 
 theSherifi" immediately takes him to jail. K he is not present, 
 a Capias issues to take him and put him in jail for the period 
 adjudged. 
 
 In penitentiary cases, the Sheriff's warrant for conveying the 
 defendant to the penitentiary, and the agent's warrant for receiv- 
 ing him, is a copy of the record of conviction. The Clerk is- 
 sues execution against his estate for the costs, and for the dam- 
 ages recovered by any person. C. & N. 329, sec. 81. On judg- 
 ments 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 warrant or other process issues. 
 A Fieri Facias issues for the costs. C. & N. 192. 
 
 COSTS IN CEIMINAL CASES. 
 
 Sko. 254. Costs are regulated altogether by statutes. The 
 Courts can give no judgments for them, except where there are 
 statutes authorizing it. 2Yer. 578; 3 Hum. 13. 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. 
 
152 
 
 When judgment is given against the State for costs, in capi- 
 tal 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 coun- 
 ty treasury. Judgment is given against the State for costs, in 
 the following cases : 
 
 1. In cases where the defendant is discharged by a verdict 
 of acquittal, a«nolle 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 discretion 
 tax the costs against the State, spreading out on the record each 
 item of costs so allowed. 
 
 When the defendant is acquitted, the Court may tax the 
 prosecutor with the costs, if the prosecution appears to be friv- 
 olous and malicious. ( 
 
 The State is never taxed with the costs of the defendant's 
 witnesses. G. & N. 191 &c.; IST. S. 110 &c. 
 
 When a defendant is acquitted in a case of misdemeanor, no 
 costs are taxed to the county, except jailor's fees, the atten- 
 dance of witnessses for the State, and the Sheriff's fees for 
 summoning them. C. & IST. 191. When a nolle 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 
 county is charged with the costs, in consequence of a defect m 
 the indictment or presentment, nor is the Clerk entitled- to any 
 fees which may become chargeable to the State or county in con- 
 sequence 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 biU of costs 
 is paid, it must be made out by the Clerk, examined and certi- 
 fied 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 itto the Trustee. 
 
 Costs that accrue subsequently to the judgment of the Court, 
 
153 
 
 such as jail fees, conveying the prisoner from one county to 
 another, <fec., may be allowed at a subsequent term. C. & N. 
 192. 
 
 The fees to which all officers, except the Attorney general, are 
 entitled in criminal and civil cases, are regulated by an act of 
 the Legislature passed Feb. 29, 1856, which repeals all former 
 laws on the subject of the fees of officers mentioned in the 
 act. The fees of the Attorney General are as follows : — 
 1. When a defondant is convicted. — In a capital case 
 $20 ; in perjury $15 ; in other penitentiary cases $10 ; in mis- 
 demeanors $5, except in cases of overseers of roads, in which it 
 is $2.50. 2. WTiere dtfendant is acquitted. — In capital and 
 penitentiary cases $5 ; in misdemeanors nothingj 3. Where a 
 defendant is discharged hy nolle 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 de- 
 fendant's insolvency, his fee is reduced to $2.50. 
 
 TRIAL OF SLAVES: 
 
 Sec. 255. 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 
 way in all respects that free -men are, the master being allowed 
 to superintend the trial. C. & N. 683 ; N. S. 118. 
 
 Slaves are punished with death for the following offences : 
 1. Murder. 2. Arson. 3. Burglary. 4. Eape. 5. Eobbery. 
 (C. & N. 679.) 6. An assault upon a white female with intent 
 to commit a rape, (C. & N. 683 ; N. S. 138, 1852 p. 251.) 7. 
 An assault and battery upon a free white person with intent to 
 commit murder in the first degree. (C. & IST. 683. 8. A con- 
 spiracy df three or more to rebel. Death or any less punishment 
 at the discretion of the Court. (C. & N. '682, sec. 4; 674, 
 sec. 17.) 9. Preparing, or exhibiting or being accessory to the 
 administering of any poison, potion or medicine, with intent to 
 kill any person. Act 1852, p. 251. 
 
 As to offences not capital, they are first brought by warrant 
 before a Justice, (with whom any other Justice who chooses 
 may sit) and 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 punishment. If he thinks it a high offence and 
 deserving of heavier punishment, he issues his precept to the 
 Sheriff, commanding him to summon three Justices, and nine 
 freeholders or slaveholders, who are to examine the case and in- 
 flict such punishment short of life or limb as they may think 
 just. A majority of the twelve may decide the case. 2 Scott 
 
164 
 
 M6; 1 Scott 279; 10 Hum. 531; 11 Hum. 169. There are sever- 
 al statutes specifying the mode of trial and punishmentfor par- 
 ticular offences. They of course are to be pursued. It is where 
 there are no such specific provisions, that the above mode is to 
 be observed. V 
 
 "We have already seen that the owner of a slave may appeal 
 to the Circuit Court from a conviction by Justices. Acts 1847, 
 page 84. 
 
 in capital cases, appeals in error, and writs of error are al- 
 lowed, as 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. & K 679., 1825, sec, 4, 6, 8. 
 
 LIMITATION" OF PEOSECUTIONS. 
 
 Sec. 256. There is no limitation to prosecutions for felonies. 
 Prosecution by presentment or indictment, for misdemeanors, 
 miist be commenced within twelve months after the offence is 
 committed. C. & E". 446. 
 
 Prosecutions for gaming, commenced within six months after 
 the offence is committed. 0. & JST. 444. For betting on elec- 
 tions, within six months after the election is over. N. S. 156, 
 sec. 17. 
 
 CHAPTER XI. 
 
 SUIT m THE CHANCEET COUKT. 
 
 Sec. 257. The first thing a lawyer has to do, to bring a suit 
 in the Chancery Court, is to prepare a Bill. The bill is often 
 called a petition, especially when it is an application for Dower, 
 as in sec. 139 ; for the partition of estates, as in sections 140-' 
 1-2 ; for the sale of estates, as in sec. 143 ; and for Divorce, as 
 in sec. 146. Whatever may be the objects of the bill, it will 
 consist of the various parts presented in the following form : 
 
 1. THE ADDEESS. 
 
 To the Chancery Court for "Wilson county. 
 
 2. THE NAMES OF THE PAETIES. 
 
 The bill of complaint of Adam Short, administrator of the 
 
15S 
 
 estate of Levi Long, deceased, against John Long, David Griffin 
 and his wife Jane, and James Long. 
 
 3. THE STATING PAST. 
 
 Tour Orator respectfully shews, that in July, 1854, Levi Long 
 (late of "Wilson county) departed this life intestate. The .County 
 Court of said county, at the September Term, 1864, appointed 
 your orator administrator of his personal estate. The whole 
 of said estate amounted to two thousand dollars, and he has 
 applied it all to the payment of the debts of his intestate, and 
 there are yet unpaid debts presented against the estate to the 
 amount of f 1000, and there may be others not yet presented. 
 
 The said Levi Long died seized and possessed of a tract of 
 one hundred acres of land, lying in Wilson county, in district 
 No. 1, the boundaries of which are described in a deed '-from 
 James Orr to said Long, dated 1 Jan'y, 1840, and here referred 
 to as part of this bill, marked Exhibit A (but not to be copied). 
 The said land descended to the defendant, John, James and Jane 
 Long, the only children and heirs of the said Levi. Jane has 
 since married the deft. Griffin. 
 
 PEAYEE. 
 
 Your Orator therefore prays, that proper process may issue to 
 cause said defendants to appear, — and that they be compelled, 
 on their corporal oaths, to answer this bill fully and particularly. 
 That a guardian ad litem be assigned to said James ; that said 
 land, or so much thereof as may be necessary, may be sold to 
 pay the debts yet outstanding against the intestate's estate, and 
 that such other and further relief as may seem right may be 
 afforded to your orator. JOSEPH STOKY, Sol'r. 
 
 Sec 258. Sometimes an injunction is prayed for. Then the 
 bill must be sworn to, either before a justice of the peace, the 
 clerk, or some judge, as follows : 
 State of Tennessee, ) 
 
 Wilson county. ) 
 
 Adam Short, complainant in theToregoing bill, this day made 
 oath before me on the Holy Gospels, that the statements therein 
 made as of his own knowledge are true, and those made as on 
 information and belief he believes to be true, and hereto sub- 
 scribed his name. 1st March, 1846. 
 
 ADAM SHOKT. 
 
 John Ij. Goodall, Judge 4th Circ't. 
 
 The judge then writes on the bill his Jiat for an Injunction, 
 thus : 
 
 To the Clerk and Master of the Chancery Court at Lebanon : 
 
156 
 
 Issue an Injunction as prayed in the foregoing bill, on compl't 
 giving bond and security according to law. '~ '.' 
 
 . JOHN L. GOODALL, Judge, &c. 
 
 Sometimes the fiat must direct in what penalty the bond is to 
 be taken, and what shall be the condition. It is not necessary 
 whei-e SL judgment at law is to be enjoined, because the law pre- 
 scribes the penalty and condition. See Sand's Suit in Ecpiity, 
 p. 462, for forms of fiats. 
 
 Sec. 259. The bill being prepared, it is to be filed with the 
 Clerk and Master, and bond and security given for the prosecu- 
 tion of the suit, which is the same in substance as the prosecu- 
 tion bond given on commencing a suit at law. If an Injunction 
 is obtained, an Injunction Bond must be given according to the 
 fiat of the judge. 
 
 SsD. 260. If the plaintiff is unable to give a bond to prose- 
 cute, "h'B may prosecute a suit in Equity, as at law, by taking the 
 pauper oath, as mentioned in sec. 3. 
 
 Seo. 261. The clerk then issues a summons, the same as the 
 original summons at law, sec. 4, except that the defendant is 
 summoned " to answer the bill of complaint of Adam Short, 
 adm'r, &c., of Levi Long, dec'd." This summons is to be de- 
 livered to the sheriff, and executed by him, as in the suit at law, 
 sees. 18-19. The clerk delivers to the sheriff with the writ, 
 a copy of the bill, which he is to deliver to the defendant when 
 he executes the writ, and he is to return that fact on the writ. 
 He only issiTes one copy for all the defendants who reside in the 
 same county. If any of the defendants to whom that copy is 
 not delivered want a copy, they can demand it' of the clerk. 
 
 The writ is to issue as much as five days before court, else it 
 must be made returnable to the succeeding term. It must also 
 be executed five days before. 
 
 Seo. 262. If the defendant is a non-resident of the State, or 
 being a resident, has absconded or concealed himself to avoid 
 the service of prbcess, that fact may be stated in an affidavit 
 annexed to the bill, or in the bill sworn to, and then no writ 
 need issue. But the clerk orders the defendant to appear, 
 by publication in some newspaper for four successive weeks, or 
 thirty days. .,TWs publication is equal to the service of process. 
 Acts 1852, cR.'365, sec. 3: 1854, ch. 55, sec. 3: 1 Meigs' Di- 
 gest, 253-4. 
 
 Sec. 263. Upon due service of process, or publication, the 
 defendant must appear, and plead, demur, or answer within the 
 first three days of the term, unless the court allows him iurther 
 time. If he does not, the bill is taken for confessed, and heard 
 and determined at that term of the court. Act 1852, ch. 365, 
 sec. 1-3. 
 
157 
 
 J Sec. 264. "Where from the face of the bill itself, admitting 
 the truth of its allegations, the plaintiff is not entitled to the 
 relief he seeks, the defendant may demuTf Where there is some 
 single fact which is a bar to the relief sought, but that fact does 
 not appear in the bill, the defendant may plead that fact, and 
 thus defend himself, without regard to the truth or falsehood of 
 the statements in the bill. He may, for instance, plead the 
 statute of limitations, infancy, that the contract was not in 
 writing as required by the statute of frauds, and so forth. An 
 answer is a response to the statements in the bill, either admit- 
 ting or denying them. And in his answer the defendant may 
 claim the benefit of any matter that he might allege by way of 
 plea or demurrer, except that it is a waiver of any objeiction to 
 the jurisdiction of the court, by act 1852, ch. 365, sec. 9. 
 
 The forms and qualities of demurers, pleas, and answers.may 
 be seen in Sand's Suit in Equity, ch. 4. 
 
 Sec. 265. The answer must distinctly admit or deny all the 
 allegations of the bill, and should state all the facts on which 
 the defendant intends to rely in his defence. The defendants 
 should all answer jointly, unless they have separate defences. 
 
 The following may be the form : 
 
 "The joint and several answer of John Long, David Griffin 
 and his wife Jane, and. James Long, by his guardian Exuni 
 Whitley, to the bill of complaint of Adam Short, adm'r, &c,, of 
 Levi Long, deceased." 
 
 These defenda,nts, for answer to, said bill say, that they admit 
 the death and intestacy of Levi Long, and the appointment of 
 complainant administrator, and the descent of the 100 acre tract 
 of land to them, as stated in the bill. They also admit, that 
 the complainant has paid off some debts that were owing by the 
 intestate, and that there are some yet outstanding and unpaid, 
 but to what araount they do not know ; nor do they know that 
 the plaintiff h^s exW?sted the personal estate in the payment 
 of debts,, and they require strict proof of that fact, and of the 
 necessity of decreeing the sale of the lands descended, to them, 
 for the payment of debts, 
 
 And having fully answered,, they pray to be dismissed with 
 their costs. 
 
 Every answer must be sw^ to. This may be done before 
 the clerk of the court, or any judge or justice of the peace. The 
 affidavit will be as follows : 
 "State of Tennessee, ) 
 Wilson county. \ 
 
 John Long, one of the defendants in the foregoing answer, 
 made oath in due form before me, John K. Howard, Clerk and 
 Master of the Cha,ncery Court of Wilson county, that the state- 
 
158 
 
 ments therein made as of defendants' knowledge are true, and 
 those made as on information and belief he believes to be true, 
 and hereto subscribed his name. This 5th March, 1856. 
 
 JOHN LONG. 
 
 Jsro. K. Howard, cl'k." 
 
 "When a bill or answer is sworn to out of court, and is not 
 delivered to the clerk by the officer who administers the oath, 
 he must envelop and seal it up, and direct it to the clerk, before 
 he parts with it. 
 
 Sec. 266. The answer thus sworn to is to be filed with the 
 clerk, who is to notify the complainant's solicitor thereof, and he 
 is thereupon allowed twenty days to except to the answer, that 
 is, to object to it because it does not fully respond to the allega- 
 tions of the bill. Ue must write out and file his exceptions, 
 showing in what respects the answer fails to respond to the bill. 
 
 These exceptions are to be adjudicated by the clerk, who either 
 allows the exceptions, that is, decides that the answer is defect- 
 ive, or disallows them, that is, he decides that the answer is 
 fully responsive to the iDill. From this decision an appeal may 
 be taken to the court by the unsuccessful party. 
 
 Sec. 267. K the clerk allows the exceptions, he gives the 
 defendant or his solicitor notice to put in a sufficient answer 
 within thirty days. If he fail to answer as ordered, or to appeal 
 within the time, the bill is taken for confessed as to facts which 
 the clerk has decided to be unanswered. If he disallows the 
 exceptions, he must notify the complainant's solicitor, and if he 
 does not appeal from his decision in thirty days, the cause stands 
 for trial at the next term. Act of 1852, ch. 365, sec. 4, 5, 6. 
 
 Sec. 268. If no exceptions are taken within the twenty days 
 allowed, or upon a sufficient answer being put in after exceptions 
 allowed, and notice given of the fact to plaintifi''s attorney, the 
 cause stands for trial at the next term, as if a replication had 
 been filed. No replication is necessary to make an issue. If 
 the bill and answer are in conflict, the parties prepare their evi- 
 dence. 1854, ch. 55. 
 
 Sec. 269. ' The evidence in the Chancery Court is not viva 
 voce, but in depositions. Depositions are taken on commission 
 from the clerk, which either party has a right, at any time, to 
 demand, or upon notice simply, as noticed ante 38, sec. 61. 
 Act 1852, ch. 161. 
 
 As the cause stands for trial at the next term, the parties arc 
 allowed until that time to take their depositions. It is not ne- 
 cessary, to set it for hearing as it used to be, but the law sets it 
 for hearing at the next term after the answer is filed, just as a 
 law suit stands for trial the next term after issue joined. 1854, 
 ch. 55. The clerk keeps the case on what is called the Bule 
 
159 
 
 Docket, until the trial term. He then transfers it to the Trial 
 or Hearing Docket. 
 
 Sec. 270. Hearing. The cause may be continued' as a law 
 suit maj". If not, it is tried, or, in Equity phrase, heard., by 
 the Chancellor. Either party may demand a jury to try any 
 contested questions of fact, and the court is bound by their ver- 
 dict, just as a court of law is. All it can do is to give a new 
 trial, if dissatisfied with the verdict. 
 
 The decree of the court on the hearing is either final or in- 
 terlocutory. If the plaintiff is not entitled to the relief he asks, 
 his bill is dismissed. K he is entitled to relief, that relief is 
 decreed. If it is necessary for any account to be taken, or any 
 thing to be done, to ascertain the exact measure of relief, or to 
 carry the relief into full effect, it is referred to the Clerk and 
 Master, by interlocutory decree, to take an account, or to do 
 whatever else is necessary. And upon his report a final decree 
 is passed, confirming his report if not excepted to— allowing or 
 overruling exceptions — recommitting the report if necessary — 
 or finally decreeing as may seem to be right. 
 
 FOEM OF DECEEE EEFEREEsTG THE CASE TO THE 
 CLEEK TO TAKE AN ACCOUNT. 
 
 Adam Short, adm'r, &c. , of Levi Long, dec'd, i 
 
 vs. > 
 
 John Long," James Long, and David Griffith and his wife Jane. ) 
 
 This cause coming on for hearing on the bill and answer. It 
 is referred to the Clerk and Master to ascertain and report to the 
 court the amount of the personal property of Levi Long, dec'd, 
 the amount of debts paid by the complainant, and what debts 
 are stiU outstanding against the estate. 
 
 At the time appointed by the Clerk to take the account, the 
 parties bring before him any testimony they may have, which 
 he takes down in writing and returns ^to the court with his re- 
 port. The administrator produces his inventory of the estate 
 and his vouchers for debts paid, and the testimony of creditors 
 iinpaid, or the evidences of their debts. The defendants may 
 show that the personal estate is not exhausted. 
 
 jEEPOET. 
 
 Pursuant to the decretal order of the last term, in the case of 
 A vs. B, the Clerk and Master has proceeded to take an account, 
 and herewith submits the evidences on which it is founded. 
 
 The persona,l estate of Levi Long, dec'd, amounted to $2000. 
 The complainant has paid debts of the intestate to the amount 
 of 12000. There are still unpaid debts to the amount of $1100, 
 
160 
 
 to wit: To A. B. a note for $5G0, due the Ist January, 1855 ; 
 to C. D. $400, by note due Ist July, 1856 ; and to E. F. an ac- 
 count of $200. 
 
 All which is respectfully submitteel. 
 
 J. K. HOWARD, Cl'k and M'r. 
 
 DECEEE OF SALE. 
 Adam Short, adm'r, &c., of Levi Long, dee'd, ^ 
 
 V8. > 
 
 John Long, James Long, and David Griffin and Jane his wife.) 
 
 This cause came on to be heard on the bill, answer, report of 
 the Clerk and Master, and proof. And it appearing to the 
 court that the personal estate of Levi Long the plaintiff intes- 
 tate amounted only to the sum of $2000, and that the com- 
 plainant has applied it all to the payment of the intestate's debts, 
 that there still remains unpaid $1100 of debts against the intes- 
 tate's estate, and that it is necessary and proper to sell the 100 acre 
 tract of land, which descended to the defendants as heirs of the 
 said deceased, for the payment thereof. It is therefore decreed 
 by the court, that the Clerk and Master proceed to sell said land 
 at public sale, at the court-house in Lebanon, after giving forty 
 days notice thereof in the Lebanon Herald, and by advertise- 
 ment at the court-house, on the 'land, and at three other public 
 places in the county. He is to sell on a credit of six and twelve 
 months, taking bond and security for the purchase money. It 
 is further ordered, that the Clerk and Master report the descrip- 
 tion of said tract of land in his report of the sale. 
 
 The clerk reports the sale to the next term of the court, as 
 follows : 
 
 Pursuant to the decretal order of the court at the last term in 
 the case of Adam Short, adm'r, &c., of Levi Long, deceased, 
 against John Long, James Long, a id David Griffith and Jane his 
 wife, I exposed to public'sale at the court-house in Lebanon, on 
 the 1st day of June, 1856, the tract of land of 100 acres therein 
 mentioned, after having advertised the sale forty days as directed 
 in the decree, and Eobert Smith being the highest bidder, be- 
 came the purchaser at the sum of $2000. His notes were taken 
 for the purchase money, payable at six and twelve months, with 
 James and John Smith securities. Said tract of land is situated 
 on Spring Creek, in Wilson county, in District No. — , and is 
 bounded as follows : beginning at a cedar ; running thenee north. 
 — poles to a white-oak ; thence east — poles to a walnut ; thence 
 south — poles to a beech; thence west — poles to the beginning : 
 containing by estimation 100 acres, being the same which was 
 
161 
 
 conveyed by -- — to Levi Long, decea8ed,"by deed dated — day 
 
 of , and which descended to defendants as his heirs. 
 
 All which is respectfully submitted. 
 
 JOHN K. HOWAED, Ol'k and Master. 
 
 DECREE CONFIEMmG THE EEPOET. 
 
 Adam Short, adm'r, &c., of Levi Long, deceased, \ 
 
 vs. > 
 
 John Long, James Long, and David Griffin and Jane his wife.) 
 
 This cause came on to be finally heard on the report of the 
 Clerk and Master, which is as follows : [Here insert.] Which 
 report, being unexcepted to, is in all things confirmed : It is 
 therefore decreed by the court, that the title to said tract of land 
 be divested out of the defendants and vested in the said Eobert 
 Smith, the purchaser at the sale of the clerk, subject, however, 
 to special lien for the purchase money. And it is farther de- 
 creed, that the costs of this suit be paid out of the first purchase 
 money collected. 
 
 271. Grose Bill. If the defendant wants any relief against 
 the plaintiff in any matter arising out of transactions embraced 
 in the bill, he must file a Cross Bill against him, which is an- 
 swered by the plaintiff. This brings the whole case on both 
 sides before the court, and enables it to decree such relief for 
 either parly as equity fliay demand. 
 
 Sbo. 27i. Any matters or parties that may have been omitted 
 in filing the bUl, or that may occur in the progress of the suit, 
 ma.y be introduced into it by amendment, or: supplemental bill. 
 
 where one of the parties dies, his representative may be made 
 a party by Scire Facias alone, or by hiU of revivor, where 'any 
 change of interests resulting firom the death renders it necessary 
 to present new facts to the court. If not so revived in two terms 
 after the death is suggested, the suit abates. 
 
 SE04273. Dissolution of Injunction. On the defendaflt's 
 appearance to an Injunetion bill, he may move to dissolve it, 
 1. Because the bill does not show good cause for it; 2. He may 
 answer the bill, denying its essential statements, and move to 
 dissolve it on the answer. If the injunction is upon a judgment 
 at law, the court will require the plaintiff to give a refunding 
 bond, conditioned to refund the money if, upon the fina,l hear- 
 ing o£ the case, the Injunction should be decreed perpetual. For 
 this dissolution on motion is mierely a temporary or interlocutory 
 order. 
 
 Seo. 274. JRekearinff. Either party may petition for a re- 
 hearing at any time during the term of the court at which the 
 cause has been decided. The grounds of a rehearing are, that 
 the court erred in deciding the law or the facts of the case ; or 
 11 
 
162 
 
 that the petitioner has discovered new evidence which he could 
 not have used on the hearing. , 
 
 Sec. 276. Aj)peal. Either party may appeal to the Supreme 
 Court from any final decree with which he is dissatisfied, or from 
 an interlocutory decree which settles the rights of, the parties, 
 and refers the case to the Clerk and Master for au accdunt. The 
 appeal takes the whole case to the Supreme Court, to be reheard 
 on the facts and the law, as in the court below. The original 
 papers, together with a transcript of all orders and decrees, are 
 to be transmitted by the clerk to the clerk of the Supreme Court. 
 But. as in a suit at law, the appellant must take and file them; 
 And whoever may be appellant, the parties occupy the same re- 
 lation as plaintifi" and defendant, that they did in the Chancery 
 Court. And the Supreme Court proceeds to adjudicate and 
 settle the case without remanding it to the Chancery Court. If 
 the appeal was from an interlocutory decree of reference to the 
 clerk, they may remand it to the Chancery Court to take an ac- 
 count, or they may refer it to the clerk of the Supreme Court. 
 
 Sec, 276. Writ of Error. By this writ also a suit may be 
 taken from the Chancery to the Supreme Court, at any time within 
 twelve months from the date of the decree. But it stands in 
 the Supreme Court as an appeal, all the depositions and exhibits 
 being a part of the record by the act of 1835, C. &. N. 232. 
 
 An appeal bond and security for costs and damages, in cases 
 of appeal and writ of error, has to be given as in the case of 
 appeals from the Circuit Court. 
 
 Sec. 277. Bill of Review. At any time withing three 
 years after the decree is ^rendered, a party may file a Bill of 
 Re-^ew in the Chancery Court, asking a reversal of its decree 
 on either of two grounds. 1. That the decree is erroneous on 
 the face of it. 2. Facts of which the party was ignorant at the 
 time of the decree, and has since discovered. Of this he must 
 make affidavit. He may file it on the first ground without 
 leave of the Court ; but he must obtain leave when it is on the 
 second ground. 
 
 The defence to a bill founded on error in the decree, is demur- 
 rer. To a bill founded on new discovered facts, it is answer or 
 demurrer. 
 
 Infants, lunatics, femes covert, imprisoned persons or those 
 beyond the United States have three years, after the removal of 
 these disabilities, to file a bill of review. 
 
 Seo. 278. Costs. The Chancery Court is not bound to ren- 
 der a decree for costs against the unsuccessful party ; but may 
 divide the costs, or order either. party to pay the whole in its 
 sound discretion. 
 
 Sec. 279. Execution. When a decree is rendered for money, 
 
163 
 
 the execution is the same as at law. When it is for any specific 
 thing, a mandate is directed to the Sheriff or other ofScer to 
 perform it. When a party is decreed to perform any specific 
 act, he is compelled tb do it by process of contempt, that is, by 
 an attachment on which his body is taken, and he is imprisoned 
 until he obeys the decree. This is the remedy for disobedience 
 to injuctions. When, by a decree, a title to property is to pass 
 from one to another, it is not decreed that one shall convey it to 
 the other, but the decree itself divests the title out of one and 
 vests it in the other, and if it is a land title, the decree must be 
 registered as deeds are required to be. 1801, ch. 6, sec. 48 ; 
 C. &_N. 220. 
 
 This very hasty and imperfect sketch of a suit in the Chan- 
 cery Court of Tennessee, is intended merely, to suggest the most 
 prominent points that occur in the progress of such a suit, 
 so that the Student will have some sort of guide in a conveni- 
 ent compass. I would refer him to Sands' Suit in Equity as an 
 excellent American Manual on the subject. The title, " Chan- 
 cery Practice, " in Meigs' Digest, is invaluable. 
 
 ERRATA. 
 
 1. Exemptions from service of procress, ip. 17, sec. 18, Members of 
 Congi-ess and the Legislature are only privileged from arrest not from 
 summons: neither are jurors according to the decision in Grove vs Camp- 
 bell, 9 Yer. 7. That decision does not refer to the act of 1777, ch. 8, sec. 
 6. (C. & N. 665,) which provides that no officer shall " execute any writ' 
 or other process upon any pereon summoned as a juror or witness." The 
 opinion of the Court is based upon the act of 1799, ch. 6, sec. 11, 
 (C. &N. 421), which forbids the service of process on the body of a Juror. 
 
 2. Page 64, sec. 99. For "verdicto" read "veredicto." 
 3 Page 76, top hne. For "ways" read "always." 
 
 4. Page 102, sec. 163. After this sec. read, "justices have the same 
 power to issue alias and pluries executions that Courts have C. & Jf sec. 
 6. But he is not to issue an alias until the former is returned, or affidavit 
 is made of its loss unsatisfied. N. &. C. 432. sec. 7." 
 
164 
 FOEMS OF DECLAEATIOS'S. 
 
 FOE AS ASSAULT AITO BATTBBT. 
 
 — "In a plea of trespass; for that the said (defendant) on the 
 day of at in and upon the plaintiff, with 
 
 force and arms, made an assault, and him the said plaintiff 
 then and there did beat, wound and iU treat," {here may he 
 stated any special matter of aggravation] "and other wrongs 
 to the plaintiff then and there did against the peace and to the 
 damage" &c. 
 
 COMMON CONSOLIDATED COUNT IN ASSUMPSIT. 
 
 — ' 'For that the said (defendant) on the day of was 
 
 indebted to the plaintiff in the sum of , for goods then 
 
 sold and delivered by the plaintiff to the said (defendant) at his 
 
 request ;— and in the sum of , for work then done, and 
 
 materials for the same provided by the plaintiff for the said (de- 
 fendant) at his request ; — and in the sum of , for money 
 
 then lent by the plaintiff to the said defendant at his request ; 
 — and in the sum of , for money then paid by the plain- 
 tiff for the use of said (defendant( at his request ; — and in 
 the sum of , for money then received by the said (de- 
 fendant) for the use of the plaintiff; — and in the sum of 
 , for money found to be due from the said (defend- 
 ant) to the plaintiff upon an account then stated between them ; 
 and in consideration thereof, then and there promised the plain- 
 tiff to pay him the several moneys aforesaid upon demand. Yet 
 the said (defendant) has never paid any of said moneys, but 
 wholly neglected so to do, to the damage" &c. 
 
 COMMON CONSOLIDATED COUNT IN DEBT. 
 
 — "For that the said (defendant) on the day of - 
 
 was indebted to the plaintiff in dollars for \here state wTiat 
 
 the debt was for, as in Assumpsit, whioJi see,] which moneys 
 were to be paid to plaintiff upon request, whereby, and by rea- 
 son of the non-payment thereof, an action hath accrued to the 
 plaintiff to demand and have from the said (defendant) the sums 
 
 aforesaid, amounting in all to the sum of . Yet the said 
 
 (defendant) has never paid the same," &c. 
 
 COVENANT—TO DELIVEE COBN. 
 
 — "For that the said (defendant) on the day of — — — , 
 
 by his deed of that date, which is now here shown to the Court, 
 
 in consideration of the sum of $ to him paid by the plaintiff, 
 
 covenanted with the plaintiff to deliver to nim on &c., at &c., 
 fifty barrels of Corn; yet the said (defendant) did not deKver the 
 said Corn, but failed to do so, and so the said (defendant) hia 
 said covenant hath broken, to the damage," &c. 
 
165 
 
 TO PAT MONET ik BANK NOTES. 
 
 — "For that tke said (defendant) on the day of ■ — ,by 
 
 his deed of that date, which is now here shown to the Court, 
 covenanted with the plaintiEF to pay him or his order, the sum of 
 $ on demand in current hank notes of the State of Tennes- 
 see ; yet the said (defendant), though often requested, has not 
 paid the said sum of money or any part thereof, but reflises 
 to do so. And so" &c. 
 
 DETINUE. 
 
 — "For that the plaintiff, heretofore, on the day of - 
 
 was lawfully possessed of [here describe the things sued for with 
 certainty]; and being so possessed, afterwards on &c. casually 
 lost the same, which afterwards on the same day came into the 
 harids and possession of of the said (defendant) by finding; yet 
 the said (defendant) although he well knew the same to be the 
 property of the plaintiff, and although often requested, yet the 
 said (defendant) has not delivered up the same, but wholly re- 
 fuses so to do, and still unlawfully detains the same to the 
 damage," &c. 
 
 FALSE IMPRISONMENT. 
 
 — "In a plea of trespass, for that the said (defendant) on the 
 
 • day of at , with force and arms, assaulted 
 
 the plaintiff, and him then and there took and imprisoned and 
 restrained him of his liberty, against the law of the land 
 and against the will of the plaintiff, and other injuries to the 
 plaintiff then and there did against the peace and to the dam- 
 age," &c. 
 
 SLANDEE. 
 
 — "In a plea of trespass on the case, for that the said (defend- 
 ant) wickedly intending to injure the plaintiff, heretofore, on 
 
 in a certain discourse which he then and there had of 
 
 and concerning the plaintiff, did, in the presence and hearing of 
 divers persons, maliciously and Msely speak and publish of and 
 concerning the plaintiff, the following false, scandalous and de- 
 famatory words, that is to say, [here state tke words with 
 prosper inuendos.] By means of the committing of which 
 grievances by the said (defendant) the plaintiff has been brought 
 into public scandal and disgrace, and greatly injured in his 
 good name, and otherwise injured to his damage," &c. 
 
 TEOVEI?. 
 
 — "For that the plaintiff, on the day of , was 
 
 ossessed of, [here state what the goods were,) of the value of 
 and being so possessed, afterwards on the same day. 
 
 casually lost the same, which afterwards, on the same day, came 
 
166 
 
 into the hands and possession of the said (defendant) by find- 
 ing, yet the said (defendant), well knowing the same to be the 
 property of the plaintiif and of right to appertain to him, though 
 often requested, has not delivered the same to the plaintiff; but 
 afterwards, on the same day, converted the same to his own use, 
 to the danlage," &c. 
 
 TEESPASS TO PEESONAl PEOPEETT FOE TAEOSTG PLATETIFP's 
 
 GOODS. 
 
 — "In a plea of trespass, for that the said (defendant) on the 
 
 day of .— at , with force and arms took and 
 
 carried away certain goods and chatties of the plaintiff, to wit : 
 [here state the goods taken, with certainty, '\ then and there 
 
 found and being of great value, to wit, of the value of $ , 
 
 and converted the same to his use, against the peace, and to 
 the damage," &c. 
 
 FOE KILLING PLAINTIFf's HOESE. 
 
 — "For that the said defendant on the day of - 
 
 at , with force and arms, beat, bruised, wounded and 
 
 killed a certain iron gray horse of the plaintiff, then and there 
 found and being, of the value of f , and other wrongs," &c. 
 
 TEESPASS QUAEE OLAUSUM FEEGIT. 
 
 — "In a plea of trespass, for that the said (defendant) on the 
 day of , and on other days and times, between 
 
 that day and the day of the purchase of this writ, with force and 
 arms, broke and entered the plaintiff's close, \here describe it^ 
 and then and there, with feet, in walking, trod down, trampled 
 upon, and spoiled the grass and corn of the plaintiff of great 
 value, to wit: of the value of $ , and other wrongs," &c. 
 
 FOEMS OF PLEAS m ABATEMENT. 
 
 ANOTHEE ACTION PENDING. 
 
 " And the said (defendant) comes &e. when &c. and prays 
 judgment of the plaintiff's writ; because he says that the said 
 plaintiff, heretofore, to wit, at a Circuit Court held at &c. on 
 &c. impleaded the said (defendant) in a plea \here state what it 
 was,] and for the same cause in the declaration aforesaid men- 
 tioned, as by the record thereof in the same Court appears; and 
 that the parties aforesaid to the plea aforesaid in the said Court, 
 and the said A. the now plaintiff, and the said (defendant) are 
 the same persons, and that the plea aforesaid in the said Court 
 remains undetermined; and this he is ready to verify: Wherefore 
 he prays judgment of said writ, and that the same may be 
 quashed. " 
 
167 
 
 OOVEETUEE. 
 
 — " That the plaintifiF at the time of the purchase and service 
 of said writ, was under coverture of one A. B. her husband, who 
 is stillliving, to wit, at &c.; and this &c. 
 
 MISNOMEE OF THE PLAINTIFF. 
 
 — " That the plaintiff is named and known by the name of 
 A. B. without this, that the plaintiff is named and called by the 
 name of 0. B. as by the writ above is supposed; and this" &c. 
 
 OF THE DEFENDANT. 
 
 — " That he now is and always was called and known by the 
 nameofC.D; without this thatthe'saidD now is or ever was called 
 or known by the, name of F. D. as by the said writ is above suppos- 
 
 WErr NOT ISSUED FIVE DATS BEFCEE THE TEEM. 
 
 -r-" That the said writ bears date the day of 
 
 which said writ was returnable and returned into this Court here 
 
 in this present term; and between which said day of 
 
 and the said term there are only three days; and in that case 
 the said writ is not suflScient in law to compel the said (defend- 
 ant) to answer the plea aforesaid; and this" &c. 
 
 PLEAS DSr BAE. 
 
 COVENANTS PEEFOEMED. 
 
 " And the said (defendant) comes and defends &c. when &c, 
 and says that the plaintiff ought not to have or maintain his a- 
 foresaid action against him; because he says, that he the said 
 (defendant) did &c. [here state the performance in the words of 
 the covenant, if such covenant were in the affirmative, and 
 conclude asfollowsi\ according to the effect of the said inden- 
 ture, and of the said convenant of the said defendant by him 
 made as aforesaid. And of this he puts himself upon the coun- 
 try. " 
 
 rNTANCT. 
 
 TO AN ACTION OF ASSUMPSIT. 
 
 "And the said (defendant) comes &c. and says \actio. non'] 
 because he says, that at the time of making the said promise in 
 the said declaration mentioned, he the said (defendant) was an 
 infant within the age of twenty-one years, to wit: of the age of 
 
 years; and this he is ready to verify: "Wherefore he prays 
 
 judgment if- the plaintiff ought to have or maintain his afore- 
 said action against him. 
 
 TO DEBT ON SIMPLE CONTEACT. 
 
 — "Because he says that at the time of making the said sup- 
 posed contracts in the said declaration mentioned, he the said 
 (defendant) was an infant" &c. 
 
168 
 
 TO DEBT ON A BPECIAXTT. 
 
 — "Because he says, that at the time of making the said wri- 
 ting obligatory, he the said (defendant) was an infant," &c. 
 
 STATUTE OF LIMITATIONS. 
 
 TO DEOLAEATION IS ASSUMPSIT. 
 
 "And the said (defendant) comes and defends &c., when &e. 
 and [actio nan\, because he says, *that at aay time within 
 three years next before the commencement of the action afore- 
 said, he never promised, in manner and form as the plaintiff 
 has above complained ; and this he is ready to yerify : Where- 
 fore" ,&c. 
 
 IN DEBT. 
 
 — "Because he says, thot the cause of action in the plaintiff's 
 declaration alleged, did not accrue to the plaintiff at any time 
 within six years next before the commencement of the action a- 
 foresaid; and this" &c. 
 
 IN DETINUE. 
 
 — "Because he says, *that at any time within three years 
 next before the commencement of this suit, he did not detain 
 the goods and chattels in the said declaration specified, or any 
 part thereof, in manner" &c. 
 
 IN EEPLEVIN. 
 
 — "Because he says, *that at any time within three years next 
 before the commencement of this suit, he did not take the goods 
 and chattels in the said declaration specified," &c. 
 
 IN TRESPASS. 
 
 — "*That at any time within three years next before the com- 
 mencement of this suit, he is not guilty of the trespass afore- 
 said," &c. 
 
 IN TEESPASS ON THE CASE. 
 
 — "*That at any time within three years, &c,.he is not guilty 
 of the premises above laid to his charge," «fec. 
 
 m EJECTMENT. 
 
 — "*That at any time within seven years next &c. he is not 
 guilty of unlawfully withholding from the plaintiff, the premises 
 claimed by him in his declaration," &c. 
 
 * Or "that the cause of action of said plaintiff, if any he has, 
 did not accrue to the plaintiff, at any time within" «S;c. 
 
INDEX. 
 
 ABATEMENT— 
 
 Plea in, C. & N. 540; M. D. 4; Story PI. 18, 18 
 
 of indictment or presentment, M. D. 604 
 
 and Revivor. C. & N. 65-6-7; M. D. 1; Story PI. 26 
 ACCOUNTS— 
 
 book. C. & N. 131; M. D. 6 
 
 from another county or State, C. & N. 11; M. D. 1 
 ACQUITTAL— 
 
 pleaof, M. D. 365 
 ACTION— 
 
 forms of, M. D. 8, 1 Ch. PI. 94 
 
 local and transitoiy, 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, SOSseo 1465 
 
 no form of, before a justice, M. D. 653 
 ADMINISTRATION— 
 
 and revocation o^ M. D. 20, 25 
 
 Suits by and against admimistrators, M, D. 38-9 
 
 against, on their bond, 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 
 
 attachment oath 
 
 Replevin 
 
 for better security 
 
 for amendment of pleadings and process 
 
 for change of v&ue 
 
 for continuance 
 
 to petition for Certiorari 
 AFFIRMATION— 
 
 of quakers, &c. as jurors, &c. C. & N. 605 sec. 4, 
 
 as witnesses in civil and criminal cases; C. & N. 712, 
 sec. 32 
 AGREED CASE— 
 
 acts 1852, p. 250 
 
 adjourned to supreme court, 0. & N. 232; M. D. 160 
 
 • PAGE. 
 
 SEC. 
 
 28 
 
 38 
 
 142 
 
 242 
 
 6 33 
 
 50 
 
 52 
 
 86 
 
 52 
 
 86 
 
 142 
 
 242 
 
 12 
 
 11-12 
 
 11 
 
 JO 
 
 12 
 
 11 
 
 97 
 
 153 
 
 117 
 
 199 
 
 125 
 
 213 
 
 127 
 
 215 
 
 219 
 
 201 
 
 42 
 
 70 
 
 122 
 
 207 
 
 6 
 
 3 
 
 8 
 
 7 
 
 13 
 
 13 
 
 22 
 
 26 
 
 27 
 
 36 
 
 44 
 
 74 
 
 46 
 
 75 
 
 110 
 
 183 
 
 49 
 
 79 
 
 50 
 
 80 
 
 34 
 
 53 
 
170 
 
 PAGE. 
 
 ALIAS AND PLURTES— 
 
 writs, C. & N. 108; M. D. 848; 10 and 11 Hum. 
 
 execution from court 
 
 execution from J. P. (see Errata) 
 ALIMONY— 
 
 see divorce 
 AMENDMENTS— 
 
 C. & N. 88; M. D. 63, 805; acts 1852, p. 219, sec. 
 APPEAL— 
 
 1. from justice of the peace, C. & N. 90, M. D. 69, 655 
 
 2. in forcible entry and detainer, acts 1850, 237, 332-6 
 
 3. on conviction of slaves 
 bond to be given, form of 
 J. P. to transmit the papers 
 to issue subpoenas for witnesses 
 stands for trial first term, if taken 5 days before 
 one of several defendants may appeal 
 annuls judgment of justice 
 proceedings on, in circuit court 
 
 1. dismission of, for want of jurisdiction, M. D. 648 
 
 2. dismissal for other causes 
 
 3 defects are all amendable 1852 p. 125 
 
 4 matter's of abatement 
 
 5 judgments on non-appearance of the parties 
 
 6 pl'fF. to give security and pay costs, when 
 
 I revival on death of either party 
 '8 trial of the appeal 
 
 9 set-off on trial 
 
 10 on affirmance of justice's jud't. plaintiff entitled 
 to 12|- per cent. 
 
 II judgment of affirmance 
 
 12 from county to circuit court, in all cases M. D. 70 
 transmission of papers, 15 days 
 trial in circuit court 
 
 APPEAL— 
 
 in the nature of a writ of error, M. D. 76-7 
 
 from county to circuit court, M. D. 70 
 
 from county to supreme court 
 
 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, ffi-|-perct. C. & N. 95; M.D. 466 
 remanding cause to circuit court 
 opinion to be sent down. 0. & N. 234 
 in criminal cases. M. D. 868 
 
 IS 
 
 75 
 
 102 
 
 4,6, 27 
 
 104 
 103 
 153 
 104 
 
 U 
 
 105 
 
 it 
 
 107 
 106 
 
 105 
 105 
 106 
 
 104-5 
 107 
 
 106 
 
 (( 
 
 107 
 
 u 
 
 111 
 
 124 
 
 65 
 124 
 125 
 
 65 
 
 68 
 65-6 
 65 
 66 
 67 
 
 70 
 
 146 
 
171 
 
 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 1862 p. 249 
 ARGUMENT— 
 
 opening and concluding, see onus proband! 
 ARRAIGNMENT— 
 
 4 Blk. 321 
 
 entry of, and plea 
 AEREST— 
 
 of judgment. C. & N. 540; M.D. 636, SST 
 
 in criminal cases 
 
 only for substantial errors, acts 1862 p. 519, sec. 4 
 ASSUMPSIT- 
 
 action of, M. D. 91; 2 G. Ev. 81; 1 Cb. PI. 98 
 ATTACHMENT— 
 
 1. Original, who and against whom and for what 
 it lies. M. D. 91; N. & G. 101; 1, 10 & 11 Hum. 
 N. S. 14 
 
 2 who issues, justice, judge or clerk. 1 1 Hum. 542 
 1852 p. 259, sec 2; p. 674. sec 11; C. & N. 101 
 
 8. affidavit. M. D. 9*7; V, 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. D. 99 
 
 not on land, if there be personalty. 0. AN. 292. 
 
 Peck 171 
 on debts, garnishee, C. & N. 103; M. D. 99 
 1. replevy of property. N. S. 14, sec 2; M. D. 103 
 8. proceedings on return of 
 2' Judicial 
 when it issues. C.& N. 108; M. D. 106, 848; 10 
 
 Hum. 264. 
 
 3. Ancillary N. S. 14; 1 Hum. 210,232,465; M. D. 
 106; 11 Hum. 542 
 
 4. In Equity. 0. & N. 106; N. S. 11-12-13; M. D. 
 Ill; 7 and 8 Hum. 
 
 5. jurisdiction of J. P. by, act 1862 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 
 
 PAGE, 
 
 147 
 
 U 
 
 148 
 
 a 
 
 34 
 
 64 
 
 142 
 143 
 
 64 
 
 146 
 
 64 
 
 3-13 
 
 7. 8, 
 
 SEC. 
 
 247 
 
 u 
 
 248 
 
 ti 
 
 ♦ 52 
 
 88 
 
 241 
 242 
 
 98 
 
 245 
 
 98 
 
 1-12 
 
 8 
 
 7 
 
 (( 
 
 7 
 
 u 
 
 7 
 
 it 
 
 7 
 
 19 
 
 20 
 
 ,1 
 
 u 
 
 (( 
 
 a 
 
 20 
 
 22 
 
 22 
 
 25 
 
 18 
 
 20 
 
 19 
 
 21 
 
 92 
 
 149 
 
 102 
 
 167 
 
 a 
 
 ii 
 
 23 
 
 27 
 
 u 
 
 29 
 
 136 
 
 232 
 
 140 
 
 238 
 
 121 
 
 206 
 
173 
 
 BILL OF EXCEPTIONS— 
 
 M. D. 123, 979 
 
 form of 
 
 in criminal cqses. M. D. 3*73 
 
 mandamus to judge to sign. 9 Hum. 231 
 
 not to be read on new trial. 11 Hum. 112 
 BONDS— 
 
 office, statutory, common law, voluntary 
 CAPlAS— 
 
 on indictments 
 
 to include all defendants. C. & N. 159 
 CAPTION-r 
 
 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 
 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. 163 
 CHALLENGE— 
 
 of jurors, in civil case. C. & N. 422 
 in criminal cases. M. D. 399-400 
 CHANCERY COURT— 
 suit and form of bill in 
 injunction 
 
 oath and fiat for injunction 
 prosecution bond 
 pauper oath 
 summons in 
 no writ need issue if defendant is a non-resident or 
 
 sconds himself 
 appearance by defendant in ^ 
 
 demurrer, plea and answer to biU 
 form of answer - 
 
 must be sworn to and filed witK elk. 
 exceptions to answer 
 trial and evidence 
 hearing 
 
 decree either final or interlocutory 
 decree referring case to clerk to take account 
 evidence before, and report of clerk 
 
 PAGE. 
 
 SEC* 
 
 51 
 
 82 
 
 62 
 
 91 
 
 146 
 
 245 
 
 129 
 
 221 
 
 140 
 
 238 
 
 U 
 
 II 
 
 56 
 
 92 
 
 « 
 
 II 
 
 13 
 
 13 
 
 ti 
 
 u 
 
 108-9 
 
 182-3 
 
 110 
 
 183 
 
 it 
 
 184 
 
 111 
 
 187 
 
 ({ 
 
 188 
 
 112 
 
 189 
 
 <i 
 
 190 
 
 114 
 
 191 
 
 lie 
 
 195 
 
 48 
 
 78 
 
 143 
 
 243 
 
 154 
 
 257 
 
 155 
 
 258 
 
 d 
 
 U 
 
 156 
 
 259 
 
 (( 
 
 260 
 
 » 
 
 261 
 
 ab- 
 
 
 (( 
 
 262 
 
 (( 
 
 263 
 
 156-7 
 
 263-4 
 
 IS'? 
 
 265 
 
 U 
 
 II 
 
 158 
 
 266-7 
 
 U 
 
 268-9 
 
 159 
 
 270 
 
 II 
 
 (( 
 
 •t 
 
 u 
 
 i( 
 
 u 
 
1T3 
 
 decree of sale 
 
 report of clerk on decree of sale 
 
 decree confirming report 
 
 cross bill 
 
 amendment and supplemental bill 
 
 scire facias and 'bill of revivor 
 
 dissolution of injunction 
 
 rehearing 
 
 appeal and writ of error 
 
 bill of review and defence to 
 
 costs and execution in Chancery Court 
 CHARGE— 
 
 of court. M. D. 349, 645, 11 5 
 
 in criminal cases. M. D. 646, 401 
 COMPROMISE & DISMISSION— 
 
 of suit 
 COMMUTATION— 
 
 of capital punishment 
 CONFESSION— 
 
 of judgment, on declaration 
 
 on note without suit, C. & I^. 419 
 CONVICTION— 
 
 plea of former. M. D. 374 
 CONTINUANCE— 
 
 C. &N. 185; M.D. 838 
 
 affidavit and entry 
 
 in criminal cases 
 CORPORATION— 
 
 suits by and against 
 
 proceedings to restrain and dissolve 
 COSTS— 
 
 in civil cases. M. D. 335 
 
 judgment and 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. 1'850 p. 296 
 COURTS— 
 
 C. & N. courts. M. D. courts 
 
 county, jurisdiction of 
 
 circuit, how opened 
 
 maiy make rules of practice. 1862 p. 220, sec, 9 
 
 equity jurisdiction of 
 
 PAGE. 
 
 SEC. 
 
 160 
 
 (t 
 
 (( 
 
 tt 
 
 161 
 
 11 
 
 1( 
 
 271 
 
 *4 
 
 272 
 
 (1 
 
 it 
 
 a 
 
 273 
 
 K 
 
 274 
 
 162 
 
 275-6 
 
 <( 
 
 277 
 
 162-3 
 
 278-9 
 
 54 
 
 89 
 
 (1 
 
 (t 
 
 134 
 
 230 
 
 148 
 
 249 
 
 25 
 
 32 
 
 t( 
 
 «( 
 
 142 
 
 242 
 
 46 
 
 75 
 
 46-7 
 
 (( 
 
 143 
 
 128 
 
 131 
 
 131 
 
 u 
 
 132 
 
 151 
 
 11 
 
 97 
 
 9 
 
 117 
 
 43 
 
 44 
 
 6S 
 
 242 
 
 117 
 218-19 
 
 223 
 
 224 
 
 225 
 tc 
 
 226 
 227 
 254 
 
 10 
 152 
 
 8 
 
 198 
 
 73 
 
 73 
 
 107 
 
174 
 
 PAGE. 
 
 COVENANT— 
 
 action of, 2 G. Ev. 223; 1 Ch. PI. 115 12 
 
 CRIMINAL PROCEEDINGS— 134 
 
 DAMAGES— 
 
 in writ and dec. M. D. 406; 2 G. Ev. 242 16 
 
 interlocutory judgment for 26 
 
 DEATH— 
 
 sentence of ' 150 
 
 DEBT— 
 
 action of M. D. 413; 2 G. Ev. 286 12 
 
 DECLARATION— 
 
 to be filed third day. C. & N 539 20 
 
 form of, in debt. 2 G. Ev. 236 
 
 by payee vs. maker and endorser, C. &N. 4 16; N. S. 
 
 225; M. D. 631 21 
 
 in ejectment. 1852 p. 216 15 
 
 in replevin 22 
 
 DEFAULT— 
 
 judgment by, C. & N.^SO; M. D. 836 32-47 
 
 DELIVERY— 
 
 of writ to sheriflF. C. & F. 546; M. D, 851 {see errata) 11 
 bond, C. & N. 129; M. D. 420 "73 
 
 DEMURRER— 
 
 form, and when argued, M, D. 810; C. & N. 541 25 
 
 special, abolished, 1852 p. 219, sec. 5 26 
 
 judgments on overruling. M. D. 836 26 
 
 to indictment. 4 Blk. 334 140 
 
 DEPOSITION— 
 
 when allowed, C. &]Sr. 243-5-6; M. D. 423; 11 Hum 89 38 
 how taken, lb. — acts .1852 p. 238 38 
 
 by whom, Jb. — 1852 p. 165, 674, sec. II 
 notice. M. D. 424; acts 1847 p. 46; 11 Hum. 84 39-40 
 
 under pauper law. C. & N. 534 40 
 
 clerk may open, N. S. 145 41 
 
 certificate of commissioner. M. D. 425; 11 Hum 84 
 leading of. 11 Hum 89; 10 Hum 234, 16; 8 Hum 663 
 tc perpetuate testimony. 1850 p. 65 41 
 
 DETINUE— 
 
 action of, M. D. 432, 409; 8 Hum 442 13 
 
 verdict and judgment in, C. & N. 540; 8 Hum 406 58-72 
 
 DEVISAVIT VEL NON— 
 
 C. & N. 710; acts 1852 p. 96; M. D. 14 35-60 
 
 Legatee may ofier the will for probate, 7 Hum 92. 
 All persons interested have a right to be made pur- 
 ties -and are all bound whether parties or not. 7 Hum 
 320. To set aside a probate, there must be a pe- 
 tition to the county court, showing: 1. That the pe- 
 titioner is an heir to the testator. 2. The facts which 
 show it not to be the will of deceased. And the ex- 
 
 SEC 
 
 12 
 231 
 
 14 
 33 ' 
 
 251 
 
 12 
 
 23 
 
 24 
 13 
 24 
 
 47-76 
 
 18 
 118 
 
 33 
 34 
 33 
 
 242 
 
 60 
 
 61 
 
 II 
 
 62-65 
 66 
 68 
 
 13 
 92-114 
 
 54-93 
 
175 
 
 ecutor must be cited to appear, and will have a right 
 to answer the petition and contest it. 7 Hum 406; 11 
 Hum 485 
 
 An appeal lies from the decision of the county court, 
 setting aside the probate of a Will. lb. , 
 DIMINUTION OF RECORD— 
 
 sugfifestion of, M. D. 161 
 DISCONTINUANCE— 
 
 of suit, M. D. 365; 3 Bit 296 
 DISMISSION— 
 
 of suit, because writ void. Story's pleading 24 
 for insufficient security, C. & N 659; M. D. 850 
 by order in vacation 
 DISTRIBUTION- 
 
 of estates, N. S. 118; M. D. 45-T; act 1850 p. 396 
 DIVOROE— 
 
 causes for. C. & N. 262; N. S. 149; M. D. 433 
 proceedings to obtain, lb. 1 and 9 Hum 
 decree and consequences, lb. 
 DOCKET— 
 
 appearance, C. & N. 546 
 •execution, C. & N. 158, act 1831 
 DOCUMENTARY EVIDENCE— 
 
 records, 1 G. Ev. sec. 602-6; M. D. 491-2, 4 83 
 deeds, C. & N. 591; M. D. 489; 2 G. Ev. 295 
 other writings. M. D. 481, 489, 1053; 1 G. Ev. 
 
 576-81 
 Wills, domestic, C. & N. 10l, sec. 6; 9 Hum. 2'72 
 from other States. N. S. 241; 9 Hum 779 
 DOWER— 
 
 C. & N. 437; N. S. 151; 1850 p 254; 1852 p 
 11, 118 7, 8, 10 and 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 
 
 overruling and sustaining demurrer 
 
 of continuance and change of venue 
 
 of affirmance and reversal in supreme court 
 
 verdicts and judgments, M._D. 1022 
 
 summary judgments 
 
 on appeal from J. P. 
 
 indictment filed 
 
 Nolle prosequi by State 
 
 36 
 
 U 
 
 69 
 
 1 
 
 23 
 
 22 
 
 134 
 
 88 
 
 90 
 91 
 92 
 
 17 
 71 
 
 41 
 
 42 
 
 84 
 
 54 
 (( 
 
 106 
 
 20 
 
 28 
 
 26 
 
 230 
 
 141 
 
 145 
 
 146 
 
 147-8 
 
 17 
 111 
 
 69 
 
 It 
 
 70 
 
 139 
 
 15 
 
 13 
 
 S3 
 
 87 
 
 54 
 
 ii 
 
 (( 
 
 U 
 
 56 
 
 92 
 
 24-25 
 
 30-32 
 
 V 26 
 
 33 
 
 45-7 
 
 74-5 
 
 . 69 
 
 109 
 
 58-59 
 
 92 
 
 78-81 
 
 127134 
 
 107 
 
 181 
 
 138 
 
 234 
 
 140 
 
 240 
 
176 
 
 judgment on recognizance 
 
 arraignment and plea 
 ERROR— 
 
 writs)f C. & IT. 93; sec. 12, 95; M. D. 460 
 
 coram nobis. M. D. 461 
 
 in criminal case 
 
 appeal in nature of 
 EVIDENCE— 
 
 how procured. I'HJ. Ev. sec. 306 
 
 documentary 
 
 in action by payee vs. maker. M. D. 485, 814 
 
 by indorsee vs. maker, 9 Hum. 464 
 
 by indorsee vs. indorser, M. D. 135, 143; 2 G. Ev. 
 174-7 
 EXAMINATION— 
 
 of witnesses, I G. Ev. 433, 445, 467; M. D. 1056 
 EXAMINING COURT— 
 
 M. D. 273, sec. 644 
 EXECUTION— 
 
 from supreme court, N. S. 281 
 
 from cir. covrt, to issue when demanded, C. & N". 159 
 
 kinds, M. D. 50b; C. & N. 292 
 
 Ca. Sa. abolished, N. S. l76 
 
 lien on personalty from teste, M. D. 603; 9 Hum 91 
 
 levy, what, M. D. 516 
 
 on personalty first, C. & N. 292; M. D. 505, 941 
 
 delivery bond to be taken, 0. & N. 129; M.D. 420 
 
 on realty, C. & N. 292; M. D. 507; 10 Hum 24. 44 
 
 equities and stocks, and choses exempt 
 
 how subjected, C. & N. 222; M. D. 508-9, 515 
 
 exemptions for the poor. M. D. 522, act 1852 p. 158 
 
 principal's property before surety's, N. 8. 277 
 
 drawer's before indorser's, C. & N. 416 
 
 Advertisement, of land 40 days, 0. & N. 292 
 
 at 4 pubhc places, 0. & N. 296 
 
 of slaves 20 days, 1850 p. 315 
 
 in newspaper if deft wishes, lb. 
 
 sale and return, M. D. 519-21; Hum 542, 606 10 
 Hum. 244 
 
 Quashing, M. D. 502 
 
 in case of death, M. D. 500, 603 
 
 Jdstioe's, 
 
 levied on land, M. D. 611, acts 1863 p. 261 
 
 what justice issues, M. D. 611, lb. 
 
 return of 
 
 levy gives priority over court, Ex. N. S, 169 
 
 issued to another county, 
 
 in criminal cases 
 
 PAGE. 
 
 SEC. 
 
 141 
 
 (■ 
 
 143 
 
 242 
 
 68 
 
 103 
 
 82 
 
 136 
 
 146 
 
 246 
 
 65 
 
 100 
 
 37-8 
 
 56-60 
 
 41-42 
 
 69-70 
 
 51 
 
 83 
 
 (( 
 
 84 
 
 52 
 
 8S 
 
 50 
 
 82 
 
 135 
 
 232 
 
 70 
 
 110 
 
 71 
 
 111 
 
 It 
 
 112 
 
 <i 
 
 U 
 
 73 
 
 117 
 
 u 
 
 118 
 
 11 
 
 117 
 
 11 
 
 118 
 
 74 
 
 121 
 
 73 
 
 117 
 
 (1 
 
 It 
 
 74 
 
 119 
 
 i{ 
 
 121 
 
 II 
 
 (( 
 
 u 
 
 122 
 
 u 
 
 li 
 
 u 
 
 « 
 
 75 
 
 u 
 
 .t 
 
 11 
 
 84 
 
 138 
 
 76 
 
 123 
 
 100 
 
 160 
 
 i( 
 
 i< 
 
 101 
 
 161 
 
 u 
 
 162 
 
 73 
 
 163 
 
 101 
 
 163 
 
 161 
 
 263 
 
177 
 
 
 PAGE 
 
 SEC. 
 
 from county court 
 
 122-2 
 
 206-11 
 
 EXCEPTIONS— 
 
 
 
 see bill of 
 
 
 
 EXECUTORS 
 
 
 
 appointment &c. 
 
 118 
 
 200 
 
 resignation and settlements. M. D. 51 
 
 118-19 
 
 199201 
 
 suits, by and against. M. D. 23, 38-9 
 
 •125-27 
 
 '213-15 
 
 FERRIES— 
 
 
 
 proceedings to establish and discontinue 
 
 123 
 
 210 
 
 FIERI FACIAS— 
 
 
 
 (see execution) 
 
 72 
 
 116 
 
 FINES— 
 
 
 
 on submission 
 
 142 
 
 241 
 
 defendant in custody for 
 
 148 
 
 250 
 
 FORCIBLE ENTRY AND DETAINER— 
 
 
 
 M. D. 531; 9 Hum. 407 
 
 103 
 
 169 
 
 GARNISHMENT— 
 
 
 
 on attachment, C. & N. 103; M. D. 99; 9 Hum. 
 
 186 19 
 
 '■" • 20 
 
 on execution, C & N. 362; M. D. 102 
 
 74-100 
 
 120-IjO 
 
 GRAND JURY— 
 
 
 
 how elected, C. & N. 42J; N. S. 191 
 
 43 
 
 73 
 
 oath and charge 
 
 44 
 
 (( 
 
 GUARDIAN- 
 
 
 
 of infant, appointment, &G 
 
 219 
 
 202 
 
 may resign, 1852, p. 194, sec. 6. 
 
 
 
 may sell land and slaves on petition 
 
 90 
 
 144 
 
 ' of idiots and lunatics 
 
 219-20 
 
 203-4 
 
 Pendente lite 
 
 127 
 
 216 
 
 HAISTD- WRITING— 
 
 
 
 how proved, M. D. 481; 1 G. Ev. 576-81 
 
 42 
 
 70- 
 
 HABERE FACIAS POSSESSIONEM— 
 
 
 
 M. D. 500 
 
 71 
 
 113 
 
 HABEAS CORPUS 
 
 94' 
 
 151 
 
 HOMESTEAD— 
 
 
 
 exempt from Ex. 1852 p. 158 
 
 74 
 
 119 
 
 IDIOTS AND LUNATICS— M. D. 580 
 
 219 
 
 203 
 
 IMPRISONMENT— 
 
 
 
 for crime 
 
 148-151 
 
 250--63 
 
 for fine and costs 
 
 148 
 
 250 
 
 INFANTS- 
 
 
 
 suits ^y and against 
 
 127 
 
 216 
 
 INDEMNITY— 
 
 
 
 bond, M. D. 695; 9 Hum. l78; 0. *; N. 183-4 
 
 m 
 
 130 
 
 indictm?;nt— 
 
 
 
 M. D.596; 7, 8, 9, 10, llHum 
 
 137 
 
 234 
 
 ex officio, M. D. 597 
 
 138 
 
 235 
 
 INQUIRY OF DAMAGES— 
 
 
 
 C. &N. 539-40; M. D. 836-41 
 
 48 
 
 76 
 
 12 
 
178 
 
 INSOLVEN ESTATES— 
 
 administration of 
 ISSUE— 
 
 in pleading, general 
 JUDGMENT— 
 
 M. D. 634, form of 
 
 by confession, C. & N. 419 
 
 on demurrer 
 
 final or interlocutory, C. & N. 539 , 
 
 lien on land, M. D. 637; C. & N. 419 
 
 by default, C. & N. 539; M. D. 634, 836, 840 
 
 arrest of, M. D. 636,837 
 
 non obstante veredicto, M. D. 820 
 
 of justice, 8, 10, 11 Hum. 
 
 of d0ath, 
 
 against principal and bail on forfeited recognizance 
 JURISDICTION— M. D. 641-3 
 
 original and appellate, exclusive and concurrent 
 
 of subject and person 
 
 by waiver of process 
 
 see courts and justice 
 JURY— 
 
 how appointed, C. & N. 425 
 
 qualification of, C. & N. 422-5; M. D. 644, 399 
 
 freeholders on change of venue, C. & N. 422 
 
 of bystanders, or talismen, C. & ». 421-3; N. S. 191 
 
 grand, C. & N. *2,1, sec. 12; M. D. 381; *' " 
 
 challenge, for opinion, M. D. 644; 7, 9, 10, 11 Hum. 
 
 for kinship, C. & N. 238; 11 Hum. 232 
 
 peremptory, M. D. 400; 0. & N. 422 
 
 oath of traverse, 
 
 presenting case to 
 
 judges of law in crim. cases, M. D. 646; 1 G. Ev. 
 sec. 49 
 
 in criminal cases, M. D. 399 
 
 separation of, M. D. 402; 9 Hum 646; 11 Hum 491 
 
 province of, M. D. 645-6 
 
 duty of when they return, 
 JUSTICE OF THE PEACE- 
 
 his jurisdiction, 
 
 1. Ou notes &c., acts 1849-50 p. 533; M. D. 648; 
 10 Hum 567 
 
 2. unsettled accounts, 1851-2, p 52 
 
 3. damages, M. D. 650; C. & N. 429; act of '29, 431, 
 act '35 sec 5 
 
 4. replevin, acts 1851-2 p. 38 
 
 5. forcible entry and detainer, N. S. 165, M. D. 531; 
 1849 p. 304; 9 Hum. 
 
 PAGE. 
 
 SEC. 
 
 120 
 
 520 
 
 29 
 
 40 
 
 24 
 25 
 26 
 
 30 
 32 
 
 33 
 
 u 
 
 t( 
 
 
 • 48 
 64 
 
 99 
 
 150 
 141 
 
 76 
 
 98 
 
 99 
 
 158 
 
 251 
 
 240 
 
 10 
 
 U 
 
 9 
 
 a 
 
 (1 
 
 (( 
 
 43 
 
 48 
 
 73 
 
 78 
 
 43 
 
 48 
 
 77 
 73 
 78 
 
 48-144 
 
 78-243 
 
 49 
 
 80 
 
 55 
 
 144 
 
 145-6 
 
 55 
 
 89 
 243 
 
 244-5 
 89 
 90 
 
 9 
 
 8 
 
 
 tk 
 
 9-103 
 
 8-168 
 
 » u 
 
 « 169 
 
179 
 
 6. by attachment, M. D. 560; N. S. 16; act 1852 p. 
 256 
 
 *?. of small offences 
 
 evidence of his acts. M. D. 483 
 
 suit before, by warrant, 
 
 no form of action, M. D. 653 
 
 no pleadings, M. D. 653-5 
 
 trial before, 0. & N. 428 
 
 parties may examine each other. 1850 p. 161 
 
 may issue siimmons for witnesses. C. t& N. 427; N. S. 
 
 may issue commissions to take depositions. 0. & N. 
 245, 243 
 
 summons for witness to cir. ct. C. & N. 90, sec 54 
 
 in criminal cases, C. & N. 240 
 
 nonsuit before, 
 
 judgment. 8 Hum 701; 10 Hum 453; 11 Hum 220 
 
 summary judgments. M. D. 651; 9 & 10 Hum 
 
 execution, what justice issues, 
 
 no lien. M. D. 659 
 
 out of the county. 
 
 Scire Facias by 
 
 appeal from his judgment, M. D. 655 
 LEGITIMATION— of children 
 LIEN— 
 
 of judgment, C. & N. 419; M. D. 637 
 
 of execution, M. D. 503; 9 Hum. 91 
 LIMITATION— of actions, 
 
 1. personal, C. & N. 439; M. D. 734; 7, 8, 9, 10 arid 
 11 Hum. 
 
 2. ejectment. C. & N. 442; M. D. 743, 
 
 3. of criminal prosecutions. C. &N. 44-5; N. S. 156, 
 sec. 17 
 
 LOST INSTRUMENTS- 
 
 proof of, 1 G. Ev. sec. 568 
 
 suits on, C. &N. 447; M. D. 758, acts 1852 p. 108 
 MALICIOUS PROSECUTION— 
 
 action of, M. D. 759; 10 Hum. 291; 2 G. Ev. 427 
 MANDAMUS— 
 
 C. & N. 448; M. D. 761; 7 & 11 Hum 
 
 to judge to sign bill of exceptions, 9 Hum. 231 
 MISTRIAL— when 
 MITTIMUS— N. S. 320 ' 
 MOTIONS— of attom«y^, 
 
 for summary judgments. M. D. 976 
 NAMES— change of, 1852 p. 619 
 NEW TRIAL— 
 
 M. D. 773; 7, 8, 9, 10 & 11 Hum. 
 
 only two to be granted, M. D. 778; 0. & N. 500 . 
 
 PAGE. 
 
 SKC. 
 
 102 
 
 167 
 
 135 
 
 232 
 
 41 
 
 69 
 
 95 
 
 152 
 
 97 
 
 153 
 
 98 
 
 157 
 
 (( 
 
 u 
 
 u 
 
 (t 
 
 194 99 
 
 tfc 
 
 a 
 
 tl 
 
 105 
 
 173 
 
 136 
 
 233 
 
 99 
 
 158 
 
 a 
 
 t( 
 
 101-2' 
 
 162-5 
 
 101: 
 
 161 
 
 102 
 
 166 
 
 101 
 
 163 
 
 102 
 
 164 
 
 103 
 
 170 
 
 122 
 
 207 
 
 102 
 
 166 
 
 73 
 
 117 
 
 31 
 
 44 
 
 (4 
 
 a 
 
 154 
 
 256 
 
 42 
 
 71 
 
 (( 
 
 'I 
 
 16 
 
 13 
 
 93 
 
 150 
 
 56 
 
 91 
 
 136 
 
 232 
 
 44 
 
 73 
 
 77 
 
 126 
 
 122 
 
 207 
 
 60 
 
 94 
 
 62 
 
 96 
 
180 
 
 ■when to be ^ranteii on costs 
 
 witnesses to be resummoned. M. D. 1046 
 
 in criminal case. M. D. 392 
 
 NEXT FRIEND— suit by, M. D. V82 
 
 iifiL DEBET— plea of, 1850 p. 59 
 
 NOLLE PROSEQUI— 
 
 as to one of leveral defendants, C. & N. 542 
 not by attorney general without consent of court, C. 
 ikN. 541 
 
 Non-suit & non.p"bos.'— m. d. 238, 782 
 
 on' calling cause for trial 
 
 pl'ff must take, before jury retires. C. & N. 540 
 
 setting aside. M.D. 838 
 NOTE— fdi'm of, Story on notes 15, 57 
 
 evidence in action on 
 NON EST FACTUM— 
 
 plea of; C. & N. 447, 501; M. D. 783 
 
 befbre justice, 11 Hum. 539 
 NON ASSIGNMENT— M.D. 783 
 NOT GUILTY— in trespass and case 
 
 to indictment. M. D. 395 
 NUL TIEL RECORD— M.D. 814 
 OATH— 
 
 how administered, C. & N. 504; M. D. 788: 1 G. Ev. 
 sec. 371 
 
 of grand jury, M. D. 383 
 
 of traverse jury 
 
 witness 
 
 pauper. C. & N. 533; M. D. 825 
 ~ jury on appeal from J. P. 
 
 witness going before gratid jury. M. D. 383 
 OFFICE BONDS— suits on, 
 ONUS PROBANDI— 
 
 opening and concluding, 1 G. Ev. sec. 74-7 
 OPINIONS— 
 
 of sup. court filed and sent to cir. ct. G. & N. 2^4 
 OYER— M. D. 815j Story's plead5Bg 49 
 ORDER— 
 
 of proceeding, M. D. 838 
 PARTIES— 
 
 to actions. 1 Ch. PI. 2-90; M. D. 816 
 
 new, *nay 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 
 
 one defendant not found, alias or nol pros, as to the 
 other, 
 
 compelled to testify, acts 1'838 p. 282, 1860 p. 161 
 
 PAGE. 
 
 SEC. 
 
 62 
 
 95 
 
 62 
 
 96 
 
 145 
 
 245 
 
 127 
 
 216 
 
 29 
 
 40 
 
 48 
 
 ' 76 
 
 140 
 
 240 
 
 23-32 
 
 29-47 
 
 47 
 
 76 
 
 55 
 
 90 
 
 25 
 
 31 
 
 5 
 
 1 
 
 51 
 
 83 
 
 30 
 
 40 
 
 51 
 
 84 
 
 30 
 
 40 
 
 143 
 
 242 
 
 48 
 
 77 
 
 49 
 
 79 
 
 44 
 
 73 
 
 49 
 
 79 
 
 50 
 
 80 
 
 6 
 
 3 
 
 106 
 
 177 
 
 137 
 
 234 
 
 129 
 
 221 
 
 50 
 
 81 
 
 70 
 
 109 
 
 32 
 
 45 
 
 (1 
 
 (( 
 
 10 
 27 
 10 
 II 
 
 21 
 
 48 
 43 
 
181 
 
 PAGE. 
 
 SEC. 
 
 87-8S 
 
 140-2 
 
 n ■ 
 
 U 
 
 44: 
 
 73 
 
 6 
 
 3 
 
 30 
 
 ■41 
 
 57 
 
 92 
 
 27 
 
 37 
 
 17 "29 
 
 39 
 
 (( 
 
 40 
 
 30l 
 
 41 
 
 3i; 
 
 43 
 
 34 
 
 51 
 
 142 
 
 , 242 
 
 30 
 
 41 
 
 139 
 
 237 
 
 118 
 
 200 
 
 ti 
 
 It 
 
 116 
 
 195 
 
 7 
 
 5 
 
 127 
 
 216 
 
 PARTITION— 
 
 and sale for, C. & N. 514-16; M. D. 797-8; 7, 8 & 
 10 Hum. 
 
 iiniirhat courts, acts 1850 p. 396 
 PASSING— case on docket 
 PAUPER— 
 
 suits, C. & N. 533; M. D. 825, 9 Hum. 365 
 PAYMENT— plea of 
 
 part payment entry , 
 
 PLEAS— when to be filed, C. & N. 539 
 
 dilatory and peremptory, abatement and bar, M. D 8l7 
 
 general issues, M.D. 814 
 
 special pleas 
 
 deft may plead several, C. & N. 540 
 
 rule to plead and try, M. D. 841 
 
 to indictment, M. D. 895, 604 
 
 in brief, 
 PRESENTMENT— M. D. 598; 8, I'O and 11 Hum. 
 PROBATE— of Wills, M. D. 14 
 
 summons to produce Will for 
 PROOBDENDO— on dismissing certiorai 
 PBOCESS—OTiginal, mesne and final, M. D. 848 
 
 see writ, 
 PROCHEIN AMY— see next friend 
 PROFERT— 
 
 C. & N 551; M. D. 819; Story's pleading 49 
 PROSECUTION— bond, C. & N. 546; M. D. 849-53 
 
 remedy against sureties, old relnedy,'M. D. 583, pres- 
 ent remedy, is judgment against the surety and tbe 
 
 pl'flf. jointly, whenever the pTff. is last, acts 1847-8 
 
 p. 94. -Whenever the judgment against t3ie surety 
 
 is omitted in the within entrifes, it should be supplied. 
 PROSECUTOR— M. D. 597; 11 Hum 40 
 
 when taxed with costs 
 QUASHING — execution M. D. 461, 502 
 
 proceedings brought up by Certiorari 
 
 indictment M. D. 604 
 RECOGNIZANCE— to appear, M. D. 397 
 RECORDS- how proved, 1 G. Ev. sec. 502-3, M. D. 491 
 caption of, M. D. 860 
 
 transcript of, C. & N. 306 
 
 diminution of, M. D. 161 
 
 transcrijrt in criminal case 
 REDEIilPTION-^f land sold, C. & N. 564; M. D. 864; N. 
 S. 223, acts 1850, p. 315, 1852, p. 261; 7, 8, 9, 10 & 11 
 Hum. 
 
 REFERENCE— to arbitrators, 1852 p. 249; C&N. 99; MD. 80 34 
 REPLEADER--M. D. 820 !B4 
 
 REPLEVIN-^aCtJon of, affidavit, bond and vmt, N. S. 243; 
 
 21 
 5 
 
 134-6 
 135 
 84 
 109 
 142 
 136 
 41 
 66 
 66 
 69 
 147 
 
 76 
 
 23 
 2 
 
 231-3 
 232 
 138 
 183 
 242 
 233 
 69 
 '92 
 101 
 106 
 247 
 
 124 
 52 
 99 
 
182 
 
 67- 
 
 - PAGK. SBC. 
 
 9 and 10 Hum 13-14 13 
 
 declaration in, 22 24 
 
 may declare in trover or detmue, 10 Hum. 31 8 " 24 
 
 general issue in, 30 4Q 
 
 judgment and execution, 10 Hum. IVI 68-'7292-ll^ 
 
 REPLEVY— of property attached, N. S. 14; M. D. 103 20' 22 
 
 REPLICATION— to plea 31; 4^ 
 
 several allowed to plea of set-off 69 93 
 
 RESPONDEAT OUSTER— M. D. 4 28 38 
 
 REVERSAL— judgment of supreme court 67 102 
 
 in criminal case 148 248 
 
 REVIVOR— of suits, on death or marriage, C. & N. 65-6, 
 
 M.D. 1, 33 
 RETURN — of writs, see writ and execution, 
 
 ROADS— 123 
 
 RULE — putting witnesses under, 1 G. Ev. sec. 432. M.D 1056 60 
 
 SALE — on petition to pay debts, 1850 p. 396 89 
 
 of slaves by adm'r. or ex'r. " " 90 
 
 by guardian, M. D. 571 " " " 
 see partition 
 
 SCIRE FACIAS— by sheriff on pl'tffs. judg't, 1848, p. 323 " 80 
 
 by and against aidm'r. and ex'r. on judgment vs. dec'd. 76 
 against witness, 11 Hum. 72 37-134 
 
 vs. bail, M. D. 397 141 
 
 by J. P. 102 
 
 vs. witness in state case 138 
 
 SECURITY— for costs, in pros, bond, C. & N. 546 5 
 
 pl'tff. ruled to better, C. & N. 667 23 
 to be given on motions, C. & N. 1 90 
 
 motion for judgment vs. principal and co-surety ,^ 8 J 
 property not liable until principal's exhausted, N. S. 
 
 279; 8 Hum. 86 74 
 
 plaintiff to give on appeal from J. P. 107 
 
 for fine and costs 14-9 
 
 SENTENCE— of dea:th, 150 
 
 SET-OFP— C. & N. 662; M. D. 931; 1852 p. 426; 8 Hum. 32 
 
 verdict and judgment for 60 
 
 ofjudgments - 116 
 SHERiFP— to execute process from court, C. & N. 664 
 to deliver unexecuted process to his successor, M. D. 940 
 and deputy may execute J. P. process, M. D. 940 
 duty as to return of process, M. D. 943-6 17-74 
 judgment vs. for not returning execution, &c. M. D. 
 
 940; 9 Hum. 542, 606, 78 
 
 SLAVES— trial of, for crimes 163 
 
 SLANDER— action of, C. & N. 139; M. D. 727, 951 Ig 
 
 pleas and evidence in, 2 G. Ev. 387; 10 and 11 Hum. 
 STAY— of execution, C. & N. 686, N. S. 278; M. D. 952; 
 
 60 
 
 209 
 
 80 
 
 143 
 
 144 
 
 131 
 
 123 
 
 -229 
 
 240 
 
 164 
 
 236 
 
 2 
 
 26 
 
 132 
 
 121 
 
 178 
 
 250 
 
 251 
 
 46 
 
 98 
 
 197 
 
 5 
 
 19-122 
 
 127 
 
 255 
 
 13 
 
183 
 
 9, 10 and 11 Hum. 
 SUBMISSION — on arraignment, for crime 
 
 judgment on; 
 SUBPCENA— duces tecum, 1 G. Ev. sec. 309 
 SUIT — in one's name for use of another 
 
 see action 
 SUMMARY— proceedings, M. D. 975-7 
 
 form of judgment vs. sheriff, M. D. 978, 945-6 
 
 by suTeties and endorsers, M. D. 988; 9 Hum. 592, 
 1850 p. 112, 351; N. S. 279 
 
 co-sureties Ds^ each other, M. D.991, 1850 p. 352 
 
 against deputy sheriff or elk. C. & N. 670; M.D. 939 
 
 by sheriff on indemnity bond, M. D. 595; 9 Hum. 178 
 
 before J. P. M D 651; 9 and 10 Hum 
 
 defendant's remedy against, M. D. 461 
 SUPERSEDEAS— on writ of error, M. D. 461, 980 
 
 on certiorari 
 TALISMEN— jurors, C. & N. 421-3 
 TESTE— of writs, C. & N. 56, sec. 12; M. D. 1049 
 
 see execution 
 TORT— actions of, 1 Ch. PI. 124, M. D. 1005 
 TRANSCaiPT—of record, C. & N. 306 
 TRESPASS— action of, M. D. 1007; G. Ev. 572 
 
 on the case, substituted for, 1850 p. 345 
 TRIAL — t«nn 'after issue joined, M. D. 841 
 
 preparation for 
 
 trial term, proceedings at 
 
 by court of nul tiel record 
 
 by jury, 
 
 without a plea, M. D. 1009 
 
 submitting case to jury 
 
 of criminal case, M. D. 399 
 
 of appeal from J. P. 
 
 PAGE 
 
 SEC 
 
 99 
 
 159 
 
 142 
 
 241 
 
 148 
 
 250 
 
 37 
 
 56 
 
 130 
 
 222 
 
 77 
 
 126 
 
 78 
 
 127 
 
 80 
 
 132 
 
 81 
 
 133 
 
 79 
 78 80 
 
 129 
 130 
 
 101-2 
 
 83 
 
 82 
 
 113 
 
 48 
 16 
 
 13 
 66 
 13 
 
 43 
 48 
 
 49 
 
 144-5 
 
 106 
 
 TROVER— action of, 2 G. Ev. 693; M. D. 1009; 1832 p, 218, 
 
 sec. 3 16 
 
 TRUSTEES— appointment of, &c. 129 
 
 of funds for charitable uses, proceedings against 128 
 
 UNLITIGATED— cases, how disposed of, 44 
 
 VENDITIONI EXPONAS— M. D. 1020 75 
 
 by justice of peace 100 
 
 VENIRE FACIAS— M. D. 403 43 
 
 VENUE— of actions, C. & N. 700 1 ] 
 
 when def 'ts reside in different bounties, 0. «fe N. 416 " 
 
 Change of in civil cases, 0. & N. 701; N. S. 
 
 307; 1850 J). 284; M. D. 1021 44 
 
 in criminal cases, M. D. 404 143 
 
 VERDICT— iH civil case, M. D. 1022; C. & N. 702 65 
 
 special and on faxdty count, C. & N. 540 56 
 
 162-65 
 
 137 
 
 136 
 
 190 
 
 77 
 
 15 
 
 13 
 
 101 
 
 13 
 
 a 
 
 51 
 55 
 73 
 
 77 
 
 80 
 243-4 
 
 177 
 
 13 
 220 
 218 
 
 73 
 122 
 160 
 
 73 
 
 10 
 
 74 
 
 242 
 
 90 
 
184 
 
 PAGE. 
 
 responds to the issue, 1852 p. 216 sec. 7, 59 
 
 in criminal cases, M. D. 403 149-150 
 
 WARRANT— leading process of J. P. M. D. 653 96 
 
 security for costs on issuing, 1852 p. 428 
 
 not to be signed 'til filled up, C. & ¥. 483 
 
 directed to private person, C. & N. Il9; 9 Hum 113 
 
 return of, N. S. 192 
 
 counterpart to another county, 1850 p. 296 
 
 no form of action, M. D. 653; 9 Hum 746 
 
 should show the amount claimed 
 
 date and signature 
 
 service and return of, M. D. 653 
 
 state's warrant, M. D. 404 1; 
 
 WILLS — see probate, devisavit vel non and doc. evidence 
 WITNESSES — how attendance procured, C. 
 &N. VlliM. D. 1046 
 
 how long to attend. C & N. 711; M. D. 1046 
 
 forfeiture for non-attendance, C. & N. 711; M. D. 1046. 
 
 attachment against, 1 G. Ev. sec. 319, C & N. 185 
 
 committed for refusing to answer, C. &'N. 712 
 
 liable to action for damages, 0. & N, 711 sec. 29 
 
 put under rule; I G. Ev. sec. 432; M. D. 1056 
 
 examination of, ^' sec. 433, 445, 467; M. D. 1056 
 
 fees 
 
 to he re-summoned on new trial " 
 
 to be recongnized to appear in crim. cases 
 WRIT— original. 
 
 Summons, C. & N. 383, sec. 2. 384 sec. 4; M. D. 847 
 
 style o^ C. &N. 56, sec. 12 
 
 address to sheriff, " 667 ch. 49 
 
 to coroner " 182 
 
 'constable " 181 
 
 issuance is commencement of suit, M. D. 851 
 
 delivery to sheriff and his indoreement, C. 
 &N.546 
 
 service or execution o^ C. & N. 664-5 (see errata) 
 
 executed 5 day before court, F. S. 232 
 
 on Sunday when, C. & N. 665, 547 
 
 persons exempt from service, M. D. 645 
 
 return of, to first day of term, M. D. 547, 852 
 
 by and against executor and administrator 
 
 by and against infants 
 
 return amendable before motion, 6 Hum 96 
 WRIT OP ERROR— C. & N. 93-5; M. D. 460-1 
 
 judgment below must be final, " 463 
 
 in criminal cases, 
 
 coram nobis, M. E>. 461, 981, 602 
 
 see error and appeal 
 
 17 
 
 126 
 117 
 
 65-8 
 68 
 
 82 
 
 SBC. 
 
 92 
 251 
 152 
 
 97 
 
 153 
 
 a 
 
 154 
 
 11 
 
 155 
 
 98 
 
 156 
 
 5-6 
 
 131-3 
 
 37 
 
 56 
 
 (1 
 
 67 
 
 U 
 
 u 
 
 38 
 
 59 
 
 (( 
 
 (( 
 
 60 
 
 80 
 
 u 
 
 82 
 
 133 
 
 228 
 
 62 
 
 96 
 
 136 
 
 233 
 
 18 
 
 214 
 216 
 
 10,0-3 
 104 
 
 136