FORM BOOK,
adapted
TO THE USE OF
LAWYERS, CLERKS, SHERIFFS, JUSTICES OF THE
PEACE, CONSTABLES AND PRIVATE CITIZENS,
with a
MEMORANDUM
op the
PRINCIPAL ENGLISH STATUTES
in force and use
IN THE STATE OF TENNESSEE.
BY JAMES T. HOLMAN, Attorney at La-
And PRESTON HAY Esy.
NaspUU.
S NYE & CO. PRINTERS.
1837.
Entered according to act of Congress, on the 12th day cf Jul>
1837, by James T. Holman, Preston Hat and S. Nye, in
the Clerk's office of the District Court, for the District of
West Tennessee.
PREFACE.
t — «
Since the late change in the Constitution of Tennessee,
by which all the minor officers of the law are made eligi
ble by popular vote, instead of receiving their appoint¬
ments Irom tribunals competent to judge of t their fitness,
it has become manifestly important that the powers and
duties of those officers should be so defined and prescrib¬
ed, as to render a knowledge of them accessible to all.
To supply the demand for information thus created ha
been the object of the Authors of the following work.
That they have been entirely successful, or have embra¬
ced all the matters which ought to have entered into their
plan, they do not pretend: but that much has been given
which cannot elsewhere be found in a form so convenient
for reference, they have no doubt; and of the general cor¬
rectness of tlfeir precedents, and of their adaptation to
the business of the country, they are well assured.
The first part of the work relative to the duties of
Clerks of the Circuit Courts, is the work of one who has
devoted several years of his life to the practical discharge
of the duties he has endeavored to'illustrate; and he has
the satisfaction of knowing that his manner of performing
those duties has generally met the approbation of those
►PREJFACE.
who^v^re capable, of forming an • opinion Tespecting ^t.
* Tfbi^p'&t dfc-\H%.jv«rfc tdtetains^dire^fions, ejqdan^^r^f*
tb^duties of a clerk at^the, comfl^in^ement of a court, the
forms of the oaths t^o^ad^nwst^roll ^o the t-o
constables, witne^es, &c*.; the form of the caption of tne
ecord of the court, the form o^|rraignment, taking plea and
,selection and enj^annelling | jury in a cgminal case; forms
if verdicts and judgments in civil and criminal proceed¬
ings, judgments on motion, by default or nonsuit; forms
af proceedings on demurrers, by and against executors
ind administrators and on appeals and writs of certiorari;
and the forms of all the writs necessary to be issued by a
< Jerk of the Circuit Court.
The second part of the work, which relates to the'duties
of Justices of the Peace and Constables, contain forms of
varrants in criminal and civil proceedings, and forms of
entries to be made thereon; forms of recognizance, mitti¬
mus, scire facias, executions, and of proceedings in an¬
ions of forcible entry and detainer; forms of garnishments,
ittachment bonds, appeal bonds, delivery bonds and bonds
of indemnity, &c.
The third part of the work contains a digest or synopsis
of the acts of the General Assembly of this State, rela¬
tive to the powers, duties and responsibilities of a Sheriff,
nost of the decisions of our Supreme Court relative to
nis duties and liabilities, and the fees allowed him by law;
the forms of the bonds required to be given by him for
the performance of the duties of his office and for the col¬
lection of the State and county taxes; forms of bail bonds,
prison bounds bonds, delivery bonds, forms of recogni-
PREFACE.
V
zances, garnishments, and of returns to be made on pro¬
cess, &c.
The fourth part, contains the forms of the bonds re¬
quired by law to be given by Executors, Administrators
and Guardians, for the faithful discharge of their respect¬
ive duties; forms for refunding bonds taken by Executors
and Administrators from distributees, forms of letters tes¬
tamentary and letters of administration, of inventories and
of accounts and reports exhibited to the County Court by
Guardians.
Vavt fifth contains the forms of the oaths required by the
laws of the State to be taken by all officers, civil, judi-
dicial and executive; and the forms of the oaths and affi¬
davits required to be made by persons obtaining process
or appealing in forma pauperis fyc.
Part sixth contains forms of deeds, of mortgages, pow¬
ers of attorney, articles of co-partnership, forms of mar¬
riage settlements, of a declaration to be made by an alien
declaring his intention to become'a citizen of the United
States, and forms of the authentication of records and ju¬
dicial proceedings, as require^ hy llie acts of Congress of
26th May 179p,^ and^th^lact of 1804, supplementary
thereto, &c.'
The seventh part of the work contains a brief account of
the origin of the common law, and gives the date of the
reign of each of the Princes of England from the time of
William the Conquerer down to the present time. In
this part of the work it is also shown what statutes of Eng¬
land are in force and use in this country, and the titles of
the principal English reports, treatises and digests, and the
names of the Princes who reigned at the times they were
VI
PREFACE.
published. For much of this part of the work, the Au¬
thors are indebted to the Commentaries of Chancellor
Kent, who is justly placed at the Jiead of American law
writers.
It has been the object of the Authors to give, through¬
out the work, the decisions made by our Supreme Court
of Errors and Appeals, in relation to (orms and prece¬
dents; for in many instances it becomes more important
that the civil officer should know the principles prescrib¬
ed by those decisions respecting his duty, than to know
the statutes themselves.
Nashville, July 3rd, 1837.
TESTIMONIALS.
vii
Testimonial of the Gentlemen of the Nashville Bar.
Nashville, July 3rd. 1837.
We have examined the hook submitted to us containing cer¬
tain forms and explanations of the duties of Clerks, Justices,
Constables, Sheriffs, &c. ,
The first part of the work prescribing the duties of Clerks, is
in our opinion well executed, and will be a useful companion,
particularly to young and inexperienced Clerks. Such a work
is particularly desirable in this State, where the Clerks are
eleeted by the people, and where, as a necessary consequence,
there will be many new ones at each successive election. If
the book reaches a second edition, we recommend an enlarge¬
ment of this part of the work.
The second part of the work, giving the forms for Justices of
the Peace, with the points decided by the Supreme Court in re¬
lation to such forms, is also well executed, and will be a desira¬
ble acquisition to those officers. The same remarks apply to
that portion of the third and fourth parts of the work prescrib¬
ing the forms for Constables and Sheriffs. The synopsis of the
different acts of Assembly, relative to the powers, duties, &c.,
of Sheriffs, and the decisions of the Supreme Court' thereon,
are particularly desirable to the Sheriffs and to the community
at large, who have such numerous transactions with those offi¬
cers. The forms &c. in relation to Guardians, Executors, Ad¬
ministrators, and the forms of oaths that are given will also
be found a desirable acquisition. Upon the whole we think thes.
work a useful one, and recommend it to the patronage of the
public.
JAMES CAMPBELL, FRANCIS B. FOGG,
EPHRAIM H. FOSTER, L. P. CHEATHAM,
G. M. FOGG, ROBERT B. TURNER,
WM. E. ANDERSON, R. J. MEIGS,
E. H. EWING, JAMES P. GRUNDY,
ANDREW EWING. H. HOLLINGSWORTH,
CHARLES SCOTT, THOMAS H. FLETCHER,
WASHINGTON BARROW.
viii
TESTIMONIALS.
Testimonial of the Hon. John Catron, one of the Associate
Justices of the Supreme Court of the United States.
Messrs. Hat & Hoeman:
Gentlemen—I have perused your book of forms and instruc¬
tions to Clerks and others, and it affords me much pleasure to
say in its behalf, that I deem it a very well compiled and neceo-
sary work. Very respectfully, your obedient servant,
Nashville, July 6th 1837. J. CATRON.
Tistimonial of the Hon. Wm. T. Brown, Judge of the Nash¬
ville Circuit.
Messrs. Holman &. Hat:
Gentlemen•—I have examined witfi care, the "Form Book,"
you have now in the course of publication, and I do-not hesi¬
tate to say, (from the best survey I could take of the work, in
the limited time it has been in my possession,) that it is very ac¬
curately executed, and in a high degree deserving public pat¬
ronage. Under the new system of electing Clerks by the peo¬
ple, such a work is an important acquisition. A Clerk, who
will procure this book of forms, if he has moderate capacity,
can rarely ever be at a loss in drafting correctly his entries; as
the forms are not only set forth before him, but he has also the
most minute instructions, touching his most important duties.
The parts of the work relating to Justices of the Peace, Sher¬
iffs and Constables &c. will impart much useful practical infor¬
mation to those officers. In truth, if the Justices, Sheriffs and
Constables, will learn and be governed by the instructions con¬
tained in this book, they will seldom err even in the discharge
of their more complicated duties. The forms of warrants in
criminal and civil cases, and the forms of conveyani.es are short
and well prepared. In short, I consider the work every way
deserving the patronage of the public.
Very respectfully,
Nashville; July 7th, 1887. WM. T. BP OWN
FORMS.
PART I.
FOR THE USE OF
CLERKS OF CIRCUIT COURTS.
CHAPTER I.
Explanatory of the duties of a Clerk at the commencement
of a Circuit Court.
The duties of a Clerk of a Circuit Court in the State
of Tennessee, are divisible into two classes, namely;
those performed during the session of the court and those
which may be performed in vacation.
The former, and by far the more extensive class,
will only be treated of in this work.
At the commencement of a term of a Circuit Court,
the first duty devolving upon the clerk, is that of the se¬
lection, empannelling and qualification of a grand jury.
This is performed in the following manner. A writof
venire facias, that is, a writ issued by the clerk of th<§
1
2
FORM BOOK.
county court of the county, directed to the sheriff, by
which he is or should be commanded to summon twenty-
six good and lawful men of his county to serve at the
next term of the circuit court as jurors, (or a greater num¬
ber by special acts of assembly in some counties,) is
placed in the hands of the clerk, with the return of the
sheriff thereon, showing upon whom it has and has not
been served. The clerk then makes a list of those upon
whom the writ has been served, upon a narrow strip of pa¬
per, writing but one name on a line, and severs the names
with a knife, with the exception of a small portion of pa¬
per on one side, so that they may easily be separated en¬
tirely. The names are then called one at a time, and as
soon as the person answers or is ascertained to be present,
the slip of paper containing his name is torn off and put
into a hat or a box, until the whole list is gone through. A
boy under ten years old is then directed to draw out names,
one at a time, until thirteen are drawn, which thirteen
persons constitute a grand jury for the term. The clerk
should make a list of the thirteen names thus drawn, and,
when completed, present it to the court, whose province it
is to appoint p foreman of the grand jury. A list should
also be made of the remaining jurors upon a memorandum
book, to the end that in the hurry and confusion of empan-
nelling juries during the term, the clerk may at once see a
list and call off the names of jurors without intermixing
amongst them any of the names of grand jurors.
The list of grand jurors having been presented to the
court and a foreman appointed, (which is done by writing
the word "foreman" opposite the name of the person to
whom the appointment is given,) and the list having been
DUTIES OF CLERKS.
3
returned to the clerk, he should then address the foreman
thus: "A. B., you have been appointed foreman of this
grand jury, come forward and be sworn." Upon the
person thus addressed putting his hand upon the New
Testament, an oath should be administered to him in thes^e
words: "You A. B.,*as foreman of this grand inquest for
the county of shall diligently inquire and true pre¬
sentment make, of all such matters and things as shall be
given you in charge. The counsel of the State, of your
fellows, and your-own, you shall well and truly keep secret.
You shall present no one through malice, envy, hatred or
ill-will; neither shall you leave any one unpresented
through fear, favor, affection or any hope or promise of
reward; but shall present all things truly as they may come
to your knowledge, according to the best of your knowl¬
edge. So help you God:"
This oath should be administered in a loud, distinct
voice, so that it may be heard by the other members of
the grand jury. The clerk should then call up the other
grand jurors, four at a time, and address them thus: "Have
you heard the oath of your foreman?" Upon their re¬
plying in the affirmative, he will administer to them the
following oath. "The same oath which your foreman
hath taken on his part, you and each of you shall well and
truly observe and keep on your respective parts. So help
you God." The court or the Solicitor General, will then
explain to the grand jury their duties, after which, one of
the constables summoned by the sheriff under the venire
facias, must be sworn to attend them. This oath may be
administered thus: "You do solemnly swear, that you will
faithfully, and without altering or defacing the same, corn
4
FORM BOOK.
vey all papers which may be transmitted by this- court to
the grand jury, or by the grand jury to the court; and that
you will otherwise discharge the duties of constable of
this grand jury, to the best of your skill and ability. So
^elp you God." The grand jury will then retire to their
place of sitting, and this first duty, preparatory to the-
business of the term, will be completed.
When the minutes of the day's proceedings come to be
made up, the first thing to be done is to draw up a suitable
caption. This is done in different forms by different clerks.
The following is believed to be the most usual.
STATE OF TENNESSEE,
Pleas at the court house" in the town of county of
and State aforesaid, on the Monday, being the •—— day
of in the year of our Lord one thousand eight hundred and
and in the year of the independence of the United
States.
Present, the Honorable one of the Judges of the
Circuit Courts of the State of Tennessee, and assigned to hold
the courts of the judicial circuit in said State.
The return of the venire facias, the empannelling of
the grand jury, and their qualification and that of the
constable to attend them, should then be noticed as fol¬
lows.
A. B., sheriff of county, returns into court the Staters
writ of venire facias to him directed, executed on C. D., E. F.
&c., (name the whole number of jurors upon whom the writ
has been served,) all good and lawful men of said county oT
and also returns, that he has, by virtue of said writ, sum¬
moned G. H. and I. J., to attend this court as constables. And
thereupon, from the jurors summoned as aforesaid, the court
proceeds, as the statute in such case made and provided directs,
DUTIES OF CLERKS.
5
to select and empannel a grand jury for said county of at
this term; when are elected, K. L., M. N. &c. of whom the
court appoints K. L. foreman, who together with the rest of
the said grand jurors, having been empannelled, sworn and
charged, according to law, to inquire for the body of the county
of retire to consider of presentments.
N. O., a constable sommoned as aforesaid, is sworn to attend
the grand jury.
Thus far, the routine of duties is uniformly the same at
every term of the court.
CHAPTER II.
Containing the forms of proceedings in criminal and
penal prosecutions.
At the commencement of a criminal or penal prosecu¬
tion, an indictment is drawn up by the Solicitor General, and
placed in the hands of the clerk, whose business it is to
qualify witnesses to testify before the grand jury. The
witnesses having come forward for that purpose, an oath is
to be administered to them thus: ''You do solemnly swear,
that the evidence you will give to the grand jury upon this
bill of indictment, against A. B., shall be the truth, the
whole truth, and'nothing but the truth. So help you God."
An endorsement should then be made on the indictment
thus: "C. D., E. F. &c. witnesses, sworn and sent to
the grand jury, 10th May, 1837. G. H. Clerk, &c."
The indictment thus endorsed, is delivered to the con--
1*
6
FORM BOOK.
stable attending the grand jury, who takes it and conducts
the witnesses into the presence of the grand jury. The
grand jury having heard the testimony, return with the bill
into court, and upon their presenting themselves in a body
within the bar of the court, the clerk should call over their
names, one at a time, beginning with the foreman, (the
sheriff or a constable at the same time counting them, to
ascertain that they are all present,) and after having called
all their names, should address them thus: "Have you any
bills to present, gentlemen?" The foreman, if such be
the case, will answer in the affirmative; and at the same
time present to the clerk the indictment, with the return
ihereon, that it is oris not a true bill, with his name as
foreman signed to it. The clerk should immediately pass
the indictment to the judge, who, before he directs the
grand jury to retire, will examine it to see that all
formalities have been complied with. If they have, the
jury will be directed to retire; if not, the indictment
will again be placed in their hands, with instructions how
to amend the defect.
If the grand jury return "not a true bill," it should be
so entered on the minutes, according to the form directly
to be given, and the prosecution is at an end.
Supposing the charge to be murder,* and the grand
jury to have returned the indictment "a true bill," an
entry should be made on the minutes thus: "The grand
*It has been decided by the Supreme Court of Tennessee, in
the case of Mitchell vs. The State, 5 Yerg. 149, that an indict¬
ment in the common law form is good, and will support a con¬
viction for murder in the first degree, under the act of 1829
ch. 23, sec. 72. '
DUTIES OF CLERKS.
7
jury return into court, and present a bill of indictment
against A. B. for the murder of C. D., ca true bill,'
and retire to consider of further presentments."
If the defendant be not already in confinement, at the
time of the finding of the indictment, a capias should is¬
sue forthwith, returnable to the term of the court then
present, and the offence not being a bailable one, the de¬
fendant, if found, will of course be lodged by the sheriff
in jail. If the defendant be found, and the writ returned
during the term of the court at which the indictment was
found, the cause will stand for trial at the same term, and
can only be continued by consent, or upon affidavit of the
defendant, or of the Solicitor General. Supposing the
defendant to have been apprehended, and the cause to be
in a state of readiness for trial, the defendant must first be
arraigned and his plea taken. This is done as follows. The
clerk addresses the prisoner thus:
A. B., a grand jury of good and lawful men, having been
duly elected, empannelled, s worn and charged to enquire for
the body of the county of have presented against you the
following bill of indictment, (here read the indictment from be¬
ginning to end.) What say you, are you guilty or not guilty
in manner and form as here charged ?
The prisoner will answer, "Not guilty."
Clerk—How will you be tried?
Prisoner—-By my country, or by God and my country, or by
a jury of my county.
Clerk—Aaid may God send yon a safe deliverance.
It was anciently the practice, and may yet be in some
parts of the country, to direct the prisoner, when first
brought to the bar to be arraigned, to hold up his right
8
FORM BOOK.-
hand, and to keep it up until the whole or a part of the ar¬
raignment was gone through with; as by doing so, he was
said to admit the jurisdiction of the court, that he was in¬
dicted by the right name, &c. But this practice, if it ever
was necessary, is believed to be now obsolete.
A. jury must next be empannelled, which is to be done in
''the following manner. The sheriff is directed by the court
to summon a certain number of persons, (including the origi¬
nal panel, except the grand jury, in case that grand jury
found the indictment,) which number varies according to
the nature of the offence charged, but must be sufficient to
furnish a jury after deducting all the peremptory challen¬
ges to which both the prisoner and the Attorney General
are entitled. The list returned by the sheriff must be
copied on slips of paper and deposited in a hat, as soon as
the persons answer to their names, in the same manner as
previously directed in the selection of a grand jury.
Previously, however, to depositing the names in the hat,
a complete copy of the list should be furnished to the pris¬
oner or his counsel. The names should then be drawn
from the hat by a boy under ten } ears of age, and the per¬
sons, as their names are called, should be directed to stand,
in front of the prisoner, and of the Attorney General. It
is the right of the Attorney General first to determine
whether he will peremptorily, or for cause, challenge the-
juror or accept him, before the prisoner is entitled to say
any thing in the matter. If the juror be peremptorily
challenged on the part of the State, the Attorney General
will say "challenge," and the court will direct him to stand
aside; if the Attorney for the State wish to show that the
juror may be challenged for cause, he will direct the clerk
DUTIES OF CLERICS.
9
to swear him, which oath is called the voir dire, or an oath
to speak the truth, and is administered thus: "You do
solemnly swear that you will true answers make, to such
questions as may be asked you relative to the present in¬
quiry. So help you God."
The juror will then be questioned by the couix, the At¬
torney General or the clerk, which interrogatories are usu¬
ally put thus: "Are you a freeholder or householder of
this county? Are you related by affinity or consanguini¬
ty to the prisoner at the bar? Have you formed or ex¬
pressed an opinion as to the guilt or innocence of the
prisoner at the bar? And if he, by his answers, show suf¬
ficient cause to disqualify him from being, an impartial ju¬
ror, he will be directed to stand aside, and another must be
called. If, however, the attorney general take no ex¬
ceptions to the juror, or fail, from his answers, to show
good cause for challenge, the juror should then be passed,
as it is called, to the prisoner. The prisoner and his
counsel will generally accept, peremptorily challenge the
juror, or demand that he be sworn without the clerk hav¬
ing any thing to; say. But if they hesitate, the ©Id and
usual practice is for the clerk to say, "juror, Took upon
the prisoner; prisoner,, look upon the juror; do you like
him?" The prisoner must then decide. If he challenge
the juror, he will be directed to stand aside; if he demand
that he be sworn, the oath will, be administered as before
directed, and he will be received or rejected according to
his answers to the questions put to him. If he be accepted,
he will be directed to take a seat by himself, and so on
until the number of twelve has been completed. Upon
beginning to make up the jury, the clerk should write upon
10
FORM BOOK.
a piece of paper the three following heads, "Elected,"
"Challenged by State," "Challenged by the prisoner;"
and should be careful to place, under its appropriate head,
the name of each juror when it is determined whether he
is to be accepted or challenged, in order that he may be
able to inform the parties at a glance how many jurors
have been accepted, and how many challenges they have
respectively had.
- The defendant having pleaded, and the jury being se¬
lected, the clerk should then call up the jury, four at a
time, and administer to them the following oath: "Yod
shall well and truly try, and true deliverance make^ be
tween the State of Tennessee and A. B , prisoner at the
bar, whom you shall have in charge, and a true verdict
give, according to your evidence. So help you God."
The witnesses should be sworn thus: "You do solemnly
swear that the evidence you will give the' court and jury,
in the case now on trial, between the State of Tennessee
and A. B., the prisoner at the bar, shall be the truth, the
whole truth, and nothing but the truth. So help you God."
Supposing the jury to have found the prisoner guilty,
and the trial to have been completed in one day,, then tile
minutes of the proceeding should be entered thus.
STATE, 1
vs. > Indictment for the murder of C, D,.
A. B. V
The Attorney General for the—» solicitor]al district, comes to
prosecute on behalf of the State, and the said A. B. is brought
to the bar of the court in custody of the sheriff of -—•'
county, and the said A. B. being arraigned and charged on said
bill of indictment, pleads not guilty to the same, and for his trial
puts himself on the country, and the Attorney General doth the
fcUTIES OF CLERKS. il
like. And thereupon, to try said issue, conies a jury, to wit:
E^F., G. H. &c.,all good and lawful men of the county of
-3- who being elected, tried and sworn, the truth to speak of
and concerning the premises,"on their oaths do say, that the said
A. B. is guilty of the murder in the first degree, of the said C.
D., in manner and form as charged in said bill of indictment.
Ordered, that the said A. B. be remanded to jail.
It seldom occurs that a trial of the character now under
consideration, is both commenced and concluded on the same
day. If at the time of adjournment of the court, the
jury have not returned their verdict, it then becomes ne¬
cessary to qualify a constable to attend them, which is done
by administering to him an oath thus: "You do solemnly
swear that you will keep the jury now committed to your
charge together, in some convenient apartment, separately
and apart from other citizens, and without permitting any
other person to have any communication with them until
you shall return with them into court, at the meeting there¬
of on to-morrow, to resume the consideration of the
cause now on trial. So help you God." In such case, the
'entry on the minutes, instead of concluding with the ver¬
dict of the jury, should state the fact thus: "who being
elected, tried and sworn, the truth to speak, of and con¬
cerning the. premises, by. consent of the Attorney Gen¬
eral and of the said A. B., are put under the charge of J.
K., a constable, who is sworn to keep them together in
some convenient apartment, separately and apart from other
citizens, and without permitting any other person to have
any communication with them, until their return into court,
at the meeting thereof on to-morrow, to resume the consid¬
eration of this cause. Ordered, that the said A. B. berefhian-
12
FORM BOOK.
ded to jail." On the following day, the entry on the minutes
should begin by stating the presence of the Attorney
General and of the prisoner in court, in the manner before
prescribed, and then continue—"And the jury heretofore
sworn, having returned into court and resumed the consid¬
eration of this cause, on their oaths do say, &c." if they
find a verdict, go on to enter it as before directed; if not,
say, "by consent of the Attorney General, &c." and go
on to state that they were again committed to the charge
of the constable, as such must be the case every day un¬
til a verdict is returned.
The court does not generally pronounce judgment in
cases of this character, until near the close of the term;
at least, not until several days after the verdict is found.
The following is the form of the judgment in a case of
murder in the first degree.
STATE, 1
vs. > Indictment for the murder of C. D.
A. B: )
The Attorney General comes, &c. and the said A. B. is
brought, &c., as before. And it is thereupon forthwith deman¬
ded of the said A. B., if he has or knows of any thing to say,
why the court shall not proceed to judgment and execution
thereof against him, according to law; who nothing further
saith, than as before he hath said. It is therefore considered by
the court, that the said A. B. betaken hence to the jail of
county, from whence he came, and be there securely kept until
the day of next, (or instant,) and that on that day, he
be taken thence to the common gallows of said county, and
there, between the hours of o'clock in the forenoon, and
o'clock in the afternoon, of the same day, be hanged by
the neck, until he be dead; and that the sheriff of county
do execution of this sentence. It is further considered by th»
duties of clerks.
13
Tourt, that the said A. B. pay the costs of this prosecution, and
that an execution issue to collect the same.
If the jury find the defendant not guilty, say, uOn their
oaths do say, that the said A. B. is not guilty in manner
and form as charged in the bill of indictment. It is there¬
fore considered by the court, that the said A. B. go hence
without day, and that the State of Tennessee pay her own
>costs, incurred in this prosecution."
If the jury find the defendant not guilty of murder in
the first degree, but guilty of murder in the second degree,
say,' 'On their oaths do say, that the defendant is not guilty of
the murder in the first degree of the said C. D., but that
he is guilty of the murder in the second degree of the said
C. D. in manner and form as charged in the bill of in¬
dictment."
If the jury find the defendant not guilty of murder in
the first or second degree, but guilty of manslaughter^ the
entry should then be made thus: "On their oaths do say,
that the said A. B. is not guilty of the murder, either in
the first or second degree of the said C. D., but that he
is guilty of the voluntary, (or involuntary as the case may
be,) manslaughter of the said C. D., in manner and form
as charged in the indictment." And in all such cases,
the judgment will be, "that the defendant undergo con¬
finement in the jail and penitentiary house of this State,"
&c. according to the precedents in cases of felony not
capital, hereafter given.
If the indictment only charge one offence, as murder
in the second degree, voluntary or involuntary manslaugh¬
ter, of course the jury need say nothing of the higher
grades of offence not charged.
%
14
FORM BOOK.
In cases not capital, but punishable by confinement in
the penitentiary, the formalities differ but little from those
in which the punishment is death. The mode of entering
the finding of the indictment, of arraigning and charging
the prisoner, and taking his plea, and of selecting and
swearing the jury, is the same. The presence of the
parties in court, the placing the jury under the charge of
a sworn officer, and the entering those matters on the
minutes, are done precisely as in cases punishable with
death. But in cases of felony, it is the province of the
jury to ascertain the length of time the accused shall be
confined in the penitentiary; and also, in cases of larceny,
to find the value of the goods stolen, and whether they
have or have not been restored to the owner; and in some
cases of the destruction of property, to find the value of
the property destroyed, that the court may or may not
give judgment according to the facts. The following
form for entering the verdict and judgment in a case of
larceny, it is believed, will enable a clerk, by attention to
the variations obviously required by the different characters
of the. offences charged, to make the proper entry in any
case of felony.
STATE, )
vs. > Indictment of larceny.
A. B. )
The Attorney General comes, &c., and the said A. B. is
brought &c. and thereupon comes a jury, to wit, E. F., G. H.,
&.c. good and lawful mcn&c.," as before, "who being elected,
tried and sworn, the truth to speak, of and concerning the pre¬
mises, on their oaths do say, that the said A. B. is guilty of the
felonious taking and carrying away, of a certain bay horse,
of the goods and chattels of C. D. in manner and form as
DUTIES OF CLERKS.
15
charged in said bill of indictment; that the property stolen was
of the value of dollars, and has not been restored to the
owner. -And the jurors aforesaid, upon their oaths afore¬
said, do further ascertain and say, that the said A. B. for the
offence aforesaid, shall undergo confinement in the jail and
penitentiary house of this State, for the space of five years.
And it is thereupon forthwith demanded of the said A.
B. if he has or knows of any thing to say, why the court
shall not proceed to judgment and execution thereof against
him, according to law; who nothing further saith, than as
before he hath said. It is therefore considered by the court
that the said A. B. for the offence aforesaid, do undergo confine¬
ment, at hard labor, in the jail and penitentiary house of this
State, for the term of five years, commencing on the day
of instant; that he be rendered infamous, and incapable of
being examined as a witness inany of the courts of this State,
and that he pay the costs of this prosecution, for which execu¬
tion may issue.
* It is further considered by the court, that C. D., the owner of
the property stolen, recover of the said A. B. the sum of •
dollars the value of said property, assessed by the jury as afore¬
said, and that he have his execution to collect the same..
Cases punishable by confinement in the penitentiary
being bailable, it frequently becomes necessary to take the
recognizance of bail in court, owing to the frequent con¬
tinuances of cases of this discription. A recognizance
should be entered thus;
STATE, 1
vs. >
A. B. )
The Attorney General comes &c., and the said A. B. is
brought to the bar &c., and there come along with the said A. B.,
C. D. and E. F., who severally acknowledge themselves to owe
and be indebted to the State of Tennessee, as follows, that is to
say: the said A. B. in the sum of five hundred dollars, and the
16
FORM BOOK.
saidC. D. and E. F. in the sum of two hundred and fifty dol¬
lars each, of their proper goods and chattels, lands and tene¬
ment-!, to be levied to the use of the State; but to be void on con¬
dition that the said A. B. do well and truly make his personal
appearance before this court,' on the first day after the
^ Monday in next, then and there to answer the State
of Tennessee, on an indictment for and not depart without
leave of the court.
The clerk should be careful to explain to both the prin¬
cipal and the bail, the exact terms of their undertaking, as
any misunderstanding on their part, may lead to troublesome
consequences.
If, on the day at which a party is bound by his recog¬
nizance to appear, he be called and come not, the re¬
cognizance is said to be forfeited, and the entry made iu
such case is as follows:
STATE, 1
vs. >
A. B. )
The Attorney General comes to prosecute on behrdf of the
State, and the said A. B., although solemnly called, cemes not,
but makes default. It is therefore considered by the court,.that
the said A. B.for the default aforesaid, do forfeit and pay to
the State of Tennessee, the sum of five hundred dollars, ac¬
cording to the tenor and effect of his recognizance, entered into
in this court at the last term, (or, of his recognizance entered
into before G. H., a justice of the peace for the county of
on the day of or, before G. H., sheriff of the county of
on the day of 18 — or as the case may be,) un¬
less he show good and sufficient cause to the contrary at the
next term of this court, and that a scire facias issue to warn
him,
DUTIES OF CLEEKS.
17
The entry of the forfeiture against the bail may be made
thus:
STATE, )
vs. V
CD. )•
The Attorney General comes to prosecute on behalf of the
State; and A. B. having been solemnly called to come into court,
as he was this day bound to do, to answer the State of Tennes¬
see, on an indictment here pending against him for came
not but made default. And the saidC. D. having also been sol¬
emnly called to come into court and bring with him the body of
A. B. to answer said charge, comes not, but makes default. It is
therefore considered by the eourt, that the saicBC. D., for the de¬
fault aforesaid, do forfeit and pay to the State aF Tennwlee, the
sum of twd hundred and fifty dollars, according to the tenor and
effect of his recognizance entered' into in this court, at the last
term, (or, &c., as above,) unless he show good and (sufficient
cause to the contrary at the next term, and that a scire facias
issue to warn him.
A separate entry! such as the above, should be made
against each one of the bail, and a separate writ of scire
facias be issued upon each forfeiture. A scire facias in such
case, being a mere civil suit for the collection of money,
falls under another classification of duties, .and will be
more fully spoken of hereafter.
It is usual for the "Attorney General, in cases of a
criminal character, to require that the witnesses for the
prosecution be recognised to appear and testify. Their
recognizance maylae entered thus:
STATE, )
vs. >
A. B. )
The Attorney General cornea, &c. And there come here into*.
2*"
18
FORM BOOK.
court C. D., E. F., &c., who severally acknowledge themselves
to owe and be indebted to the State of Tennessee, in the sum
of two hundred and fifty dollars each, of their proper goods and
chattels, lands and tenements to be levied, to the use of the S. ate •
but to be void on condition that they do severally appeal* before
the court here, on the day after the Monday in
next, then and there to testify, and the truth to speak, on behalf
of the State, on an indictment against A. B* for and not
depart without leave of the court*
This recognizance, like all others, may be forfeited, on
die failure of the witness to be in attendance when called,
on or after the day specified; and the entry will be the
same as those ^Pbove given, with the exception, that it
should^ate the witness was c '■solemnly called to come into
court and testify on behalf of the State, on an indictment
against A. B. for ," and that he came not, but rhade
default, &c.
Cases of misdemeanor, as gaming, breach of the peace,
&c. which are punishable by fine and imprisonment only,
are tried without the formalities attending those of more
serious character, and differ but little, so far as the duties
of the clerk are concerned, from civil actions. The man¬
ner of finding the indictment, is the same as* in criminal
cases; but the jury is promiscuously chosen by the clerk
from the jurors in attendance, and the plea of not guilty is
put in for the defendant, without formally arraigning and
charging him. The jury is sworn, "well and truly to try
the issue of this traverse between the State of Tennessee^
and A. B., and a true verdict to give according to their
evidence," and the witnesses are sworn, "that the evi¬
dence they will give to the court and jury, touching the
issue of this traverse, between the State of Tennessee
DUTIES OF CLERKS.
19
and A. B., the defendant, shall be the truth, the whole
truth, and nothing but the truth." The judgment may be
entered thus:
STATE,
vs.
A. B.
The Attorney General comes, &c. and the said A. B. comes in
proper person, and being arraigned and charged on said bill of
indictment, pleads not guilty to the same, .and for his trial puts
himself on the country, and the Attorney General doth the like;
and thereupon to try said issue, come a jury of good and lawful
men,.to wit. C. D., E. F., &c.; who being elected, tried and
sworn, "well and truly, &c., [as above,) on their oaths do say,
that the defendant is guilty of the assault, battery and «affray,.
(or, of the unlawful gaming, or, of retailing spirituous liquors
without license, or whatever the offence charged may be,)
in the indictment mentioned,. in manner andr form as therein
charged. It is therefore considered by the court, that thede- -
fendant, for the offence aforesaid, do forfeit and pay to the
State of Tennessee, a fine of five dollars, that he , pay the
costs of this prosecution, and that he be taken, &c..
It is, in the discretion of the court to make several va¬
riations in its judgments for offences of this kind. It may
punish by fine alone, by imprisonment alone, or by both
together. It may also direct, that the defendant be held
in custody, or remain on his recognizance, until the fine
and costs be paid or secured, or, where imprisonment is
adjudged, that he remain in prison, beyond the time al¬
lotted, until the fine and costs are paid or secured, or he
be discharged by due course of law, that is, by taking
the oath of insolvency. The following two or three forms,
are given in illustration,.
20
FORM BOOK
It is therefore considered by the court, that the defendant,
for the offence aforesaid, be imprisoned in the common jail of
county, for the space of ten days, commencing on this day,
(or name the day,) and that he pay the costs of this prosecution;
and further, that he r< main m prison until said costs are paid or
secured, or he be discharged by due course of law.
Therefore, it is considered by the court, that the defendant?
for the offence aforesaid, do forfeit and pay to the Stite of
Tennessee, a fine of five dollars, and that he pay the costs of this
prosecution. It is further considered, that he be imprisoned in
the common jail of county, for the space of ten days, com¬
mencing on this day, and that he remain in prison until said fine
and co3ts are paid or secure J, or he be discharged by due
course of law.1'
"It is therefore considered by the court, that the defendant, for
the offence aforesaid, do forfeit and pay to the State of Ten¬
nessee, a fine of five dollars; that he pay the costs of this pro¬
secution, and that he remain in custody, (or, upon his recogni¬
zance) until said fine and costs are paid or secured."
When the judgment is such as the latter precedent, the
defendant usually offers surety, who comes to the clerk
and enters into the obligation, v\hichis expressed on the
minutes, thus:
"And thereupon came here into court, C. D. and acknowl¬
edged himself the surety of the said A. B. for the payment of
the fine and costs aforesaid. ' It is therefore further considered
by the court, that the State recover against the said A. B.
and C. D. jointly, the fine and costs aforesaid, and that execu¬
tion issue, &c."
If, after a defendant has been adjudged to remain upon
his recognizance until the fine and costs be paid or secur¬
ed, he fail to give surety, or to appear when called, his re¬
cognizance, and that of his bail may be forfeited: for the
DUTIES OF CLERKS.
21
terms of his recognizance, then and there to answer the
State, fyc. are not complied ^ith, so long as the judgment
remains unsatisfied. The proceedings upon such forfeit¬
ure, are precisely the same as those already given.
In cases of the character under consideration, defen¬
dants frequently plead guilty, and submit their cases to the
court. The judgment may then be enternd thus:
STATE, 1
A. B. )
"The Attorney General comes, &c. and the defendant in pro¬
per person, who says he cannot deny but that he is guilty in
manner and form as charged in said bill of indictment, and sub¬
mits to the mercy of the court. It is therefore considered, &c."
Go on to enter the judgment according to the substance thereof,
and the former precedents.
CHAPTER III.
Of the forms of judgments, fyc in the action of debt.
This is an action brought for the recovery of a sum cer¬
tain of money. The general issue is nil debet, where the
contract is not under seal: •fliat is, that the defendant does
not owe the debt declared on; but to this, as to all other ac¬
tions, a great number of special pleas may be put in, each
one of which will cause a small variatio i in the form of the
entry, Thus, the defendant may plead ncn est factum;
that is, that the bond, &c. sued upon, is not his act and
deed; that he was an infant, under 21 years old; that he
was in duress, that is, illegally imprisoned, and constrained
to execute the paper; that he has paid the 'debt, &c.
22
FORM BOOK.
The oath administered to the jury is, that they will well
and truly try the issue (or issues) joined between A. B.
plaintiff and C. D. defendant, and a true verdict give ac¬
cording to their evidence. The witnesses are sworn, that
the evidence they will give the court and jury, in the cause
on trial, between A. B. plaintiff and C. D. defendantr
shall be the truth, the whole truth, ond nothing but the
truth.
Supposing the plea to be payment, and issue taken
thereon, the entry of the finding of the jury and of the
judgment should then be made as follows;
A. B. )
vs. >
C. D. )
The parties by their Attorneys appear, and come also a. jury
of good and lawful men, to wit: E. F. G. H. &c.. who, being
elected, tried and sworn, the truth to speak upon the issue join¬
ed, on their oaths do say, that the defendant hath not paid the
debt of one hundred dollars, in the_declaration mentioned, and,
they assess tbe plaintiff's damages,, by reason of the detention
thereof, to six dollars. Therefore, it is considered by tbe court,
that the plaintiff recover of the defendant, his debt aforesaid,
and the damages by the jury in form aforesaid assessed, and his
costs by him about his suit in this behalf expended, and that he
have his execution.
If tbe plea be non est factum, enter the finding of the-
jury thus—-"On their oaihs do say, that the bond (bill sin¬
gle, writing obligatory, or by whatever name the obligation
may be called in the declaration) m the declaration men¬
tioned, is the proper act and deed of the defendant."
Therefore, it is considered, &c. as above.
If the plea be nil debet: thus—"On their oaths do say,
DCTIES OF CLERKS.
23
that the defendant doth owe the debt of one hundred dol¬
lars, in the declaration mentioned; and they assess the
plaintiff's damage, by reason of the detention thereof, to
six dollars." Therefore it is considered, &c.
If the plea be infancy, thus—"On their oaths do say,
that the defendant at the lime of the execution of the
bond, writing obligatory, &c. in the declaration'mention-
ed, was not an infant, under the age of twenty one years;
and they assess the plaintiff's damage, by reason of the
. detention of the debt of one hundred dollars, in said de¬
claration mentioned, to six dollars." Therefore, &c.
If the finding of the jury be for the defendant, it should
be entered, in the different cases put, thus—"On their
oaths do say, that the defendant hath paid the debt of one
hundred dollars, in the declaration mentioned, as in plead¬
ing he hath alleged." "On their oaths do say, that the
bond, &c. in the declaration mentioned, is not the proper
act and deed of the defendant, as he in pleading hath al¬
leged." "On their oaths do say, that the defendant doth
not owe the debt of one hundred dollars, in the declara¬
tion mentioned, as in pleading he hath alleged." "On
their oaths do say, that the defendant, at the time of the
execution of the bond, &c. in the declaration mentioned,
was an infant, under the age of twenty-one years, as in
pleading he hath alleged," &c. And the judgment in all such
casesris: Therefore, it is considered by the court, that the
defendant go hence without day, and recover of the plain¬
tiff his costs by him about his defence in this behalf ex¬
pended, and that he have his execution."
The plea of set off is different in its nature from all
other pleas, inasmuch as it sets up an indebtedness on the
24
FORM BOOK.
part of the plaintiff to the defendant, and is in many re¬
spects, similar to an action brought by the defendant
against the plaintiff, for the amount sought to be set off
against his demand. This plea has by our acts of Assem¬
bly, been made available in many cases, where at common
law, it could not be pleaded; consequently, no authorities
can be found as to the form of the entry. The following
may be adopted as a form, where the sum set off is less
than the plaintiff's demand, supposing the defendant to
have pleaded payment and set off, and'the plaintiff to have
taken issues on those pleas.
A. B. )
vs. >
C. D. )
The parties, by their Attorneys, appear, and come also a ju¬
ry, &c. who, being elected, tried and sworn, the truth to speak
upon the issues joined, on their oaths do say, that the defen¬
dant hath not paid the debt of one hundred dollars, in the decla¬
ration mentioned, and they assess the plaintiff's damage, by
reason of the detention thereof, to six dollars. And they do
further say, that the plaintiff is indebted to the defendant, in tho
sum of fifty dollars, including interest up to this day. It is
therefore considered by the court, that the debt and interest due
from the plaintiff to the defendant, be set off against so much
of the debt and damages due from the defendant to the plaintiff,
and that the plaintiff recover of the defendant, the balance of-
his said debt and damages, being the sum of fifty-six dollars,
and his costs about his suit in this behalf expended, &c.
If the plaintiff be found indebted to the defendant in an
amount equal to, or greater than the amount due from the
defendant to the plaintiff, the entry may be made thus—
"On their oaths do say, that the defendant hath not paid the
debt of one hundred dollars in the declaration mentioned.
folJTIES OF CLERKS.
and they assess the plaintiff's damage, by reason of the
detention thereof, to six dollars. And they do further
say, that the plaintiff is indebted to the defendant in a sum
equal to the debt and damages aforesaid, (if the indebted¬
ness of the plaintiff be larger than that of the defendant,
say,) and more, as the defendant in pleading hath "alleged.
It is therefore considered by the court, that the debt due
from the plaintiff to the defendant, or so much thereof as is
equal to the plaintiff's demand, be set off against the debt
•due from the defendant to the plaintiff. And it is further
considered, that the defendant go hence, &c. and recover
his costs," &c.
Actions of debt upon penal bonds, that is, bonds to be
void upon the performance of certain conditions therein
expressed, require entries of different "form from those in
other actions of debt. In an action of this description,
the damages sustained by reason of the non-performance
of the condition, is the standard of recovery: and the in¬
quiry is exactly similar to what it would be, in an action oi
covenant, where the defendant, in the obligation sued upon,
had undertaken to do, or not to do, the things stipulated
In the condition of the bond: or in an action on the case,
where the defendant, by contract, express or implied, had
bound himself to the performance of acts and things simi¬
lar to those expressed in the cbndition of the bond,.
To this, as to other actions of debt, many different
pleas may be put in. The most usual is, that the defen¬
dant hath performed the condition of the writing obliga¬
tory in the declaration mentioned, &c. The entry of the
finding of the jury, and the judgment may be made thus—
"On their oaths do say, that the defendant hath not well
3
26
FORM BOOK.
and truly performed the condition of the bond, (writing
obligatory, &c.) in the declaration mentioned, and they
assess the plaintiff's damage, by reason of the non-per¬
formance thereof, to five hundred dollars. It is therefore
considered by the court, that the plaintiff recover of the
defendant his debt of one thousand dollars, in the declara¬
tion mentioned, but which may be discharged by the pay¬
ment of five hundred dollars, the damages by the jury in
form aforesaid assessed, together with his eosts by him
about his suit in this behalf expended," &c.
If the finding be for the defendant, the entry will be,
" That he hath well and truly performed the condition of
the writing obligatory in the dexlaration mentioned, as in
pleading he hath allegedand the judgment of course
will be, that he go hence without day.
The statute of limitations of six years is often plead¬
ed to this action, when it has been brought upon a promisso¬
ry note or bill not under seal; in which case the finding, if
for the plaintiff, should be entered thus—"On their oaths
do say, that the defendant did undertake and promise to
pay the debt of one hundred dollars, in the declaration
mentioned, within six years next before the commence¬
ment of the plaintiff's action, as he in replying hath alleg¬
ed, and they assess the plaintiff's damage, by reason of
the premises to," &c.*
•This form is applicable to mostcases;but if the promise is to be
performed five years afterwards, and the action be brought five
years after the expiration of that term, in such case, the plea
of the statute of six years, though good upon its face, is yet no
defence to the action; and the answer to it will be to reply, that
the cause of action did accrue within six years next before the
DUTIES OF CLERKS.
2?
If the plea be found for the defendant', say, aThat the
defendant did not undertake and promise, &c. as he in
pleading hath alleged, &c. and the judgment will be that he
go hence," &c.
These forms will only require the variations obviously
indicated by change of circumstances, to be adapted to
the six months limitation in cases of slander; the three
years limitation in cases of detinue, trover, debt for arrear-r
ages of rent, actions on the case upon accounts, &c. and
the two years limitation of suits against executors and ad¬
ministrators. The seven years limitation of actions of
ejectment, and the presumption of payment arising after
long lapse of time in cases of bonds and other sealed in¬
struments, are not pleaded, but given in evidence under
the general issue or other plea.
CHAPTER IV.
Case,
The action on the case, is an action brought for the re¬
covery of money due by contract, express or implied, or
for the doing or failing to do, some act or thing, by the
defendant, in consequence of which some damage has ac-
commencement of the suit. If issue be taken on this replica¬
tion and found for the plaintiff, the entry will be, "On then-
oaths do say, that the plaintiff's cause of action did accrue with¬
in six years next before the commencement of this suit, as he in
replying hath alleged. Therefore, it is cpnsidered by the court
that the plaintiff recover, &ef
23
fORM BOOK,
;rued to the plaintiff. In practice, the action on the case
is confounded with the action of assumpsit; or rather, we
call all actions by the general name of "actions on the
:.ase," as well those which, in technical propriety, should
be called actions of assumpsit, as those which are properly
called actions on the case- For instance', an action
brought for the recovery of money due on account for
goods sold, or by promissory note not under seal, or by ver^
bal promise, though it be called an action on the case, is
properly an action of assumpsit, the assumpsit or promise
of the defendant, constituting the ground of recovery, and
the general issue to such an action, is non-assumpsit, that
is, fhat the defendant did not promise, tyc. But if an ac¬
tion be brought to recover damages by A against B for
an injury sustained by A in the overturning of his car*
riage, by reason of an obstruction placed by B in the
highway, or permitted to remain there, it being his duty to
remove it—this would be properly called an action on the
case, and the general issue to such action is not guilty >
Whether the action be assumpsit, or case ptoperly so call®
ed, the verdict is. for damages alone.
Supposing the action to be assumpsit, or an action oh
the case in assumpsit, as it is sometimes called, and the
plea <to he non-assumpsit, and issue thereon, the verdict
and judgment, if for the plaintiff, should be entered thus:
^On their oaths do say, that the defendant did undertake
•and promise in manner and form as the plaintiff, in declar¬
ing hath alleged, and they assess the plaintiff's damage, by
rdfton of the premises, to five hundred dollars. There-!
fore, it is considered by the court, that the plaintiff reco-s
ver of the defendant, the damages by the jury so assess*
ed, and his costs,&c.
&UT1ES OF CLERKS.
29
This action being founded upon contract, any matter,
showing the contract to be void in its inception, as infancy,
lunacy, idiocy, coverture, duress, &c. may be pleaded to it,
as to the action of debt, and the entry of the finding of the
jury upon those pleas will be the same, whatever the form
of action may be. Also, any plea, showing that the con¬
tract, though valid at first, has subsequently been complied
with or satisfied, as payment, arbitrament and award, ac¬
cord and satisfaction, tender, and the like, constitutes a de¬
fence to this action, as well as to the action of debt or
other action where money is demanded, and the entry of
the finding of the jury upon such pleas, is the same in all
actions.
It may be as well here to lay down a general rule, which
embraces the whole science in regard to entries, and of
which, all the forms which have, or can be given, are but
illustrations. It is this: whatever the successful party last
alleged, in his pleadings, must be reiterated by the jury,
in their finding. This ^pr-inciple, \correetly understood,
will enable a clerk to adapt his entry to any conceivable
state of the pleadings, provided he takes care to^fiake him¬
self acquainted with the real matters in issue.
In the action of case, or assumpsit, the pleadings are
often very voluminous, and the clerk will frequently be
much troubled to get at the matters in issue, which frequent¬
ly involve distinct issues of law, upon demurrers, and of
fact, upon the other pleadings. Of demurrers, more will
be said hereafter. Issues of fact are often made so diffe¬
rent from any question which could be supposed to arise
from the previous pleadings, that it is of the utmost im¬
portance that the clerk have such knowledge of the science
3*
30
FORM BOOK
of pleading, as will enable him to trace the matter lfi
controversy down to the point on which the issue is even-'
tually formed. Suppose an action to be brought, on a
contract to pay one hundred dollars. The defendant
pleads that, at the time of making the supposed contract,
he was an infant, under twenty-one years old. This plea,
in effect, admits the making of the contract, but insists
that it is void, the defendant being incapable of binding
himself by contract. The plaintiff, in his replication,
says, that the defendant affirmed the contract, and promis¬
ed to pay the money after he attained to full age. This
replication admits the infancy of the defendant, at the time
of making the original contract. The defendant rejoins,
that at the time of affirming the contract, and making the
promise, relied upon in the replication, he was unlawfully
imprisoned, and constrained to make such promise, &c.
To this rejoinder we will suppose the plaintiff to have ta¬
ken issue, and a jury to have found upon it, in his favor.
Now, to make the jury say "that the defendant did under¬
take and promise in manner and form as the plaintiff in de¬
claring hath alleged," or "that the defendant did affirm
the contract in the declaration mentioned, and promise to
pay the sum of money therein demanded, m manner and
form as the plaintiff in replying hath alleged," would be
a manifest departure from science, and from logic,
for neither of these questions was in issue before the jury.
The only question submitted to them, was the fact of the
illegal imprisonment and constraint, and to that alone must
their response be confined in the entry. The finding
should therefore be entered thus—"On their oaths do say,
that the defendanty at the time of his- affirmance of the"
M/ftEs 6E clEiiKiS;-
contract in the declaration mentioned, and of his promise
to pay the sum of money therein demanded, was not un-
lawfully imprisoned, and constrained to make such affirm¬
ance or promise, as the plaintiff, in his sur-rejoinder hath
alleged, and they assess the plaintiff's damage, by reason
of the premises to^" &c.
If the finding be for the defendant, the entry should ber
"On their oaths do say, that the defendant was illegally im¬
prisoned, and constrained to affirm the contract in the de¬
claration mentioned, and to promise to pay the sfirn of mo¬
ney therein demanded, in manner and form as he in re¬
joining hath alleged," and the judgment will be that he go
hence, &c.
If the jury find any one plea in favor of the defendant,
the judgment most usually will be "that he go hence;" for
the plaintiff, by taking issue upon it, and submitting it to
the jury, admits, that if true in fact, it constitutes • a good
defence to his action, and it is incumbent upon him to de¬
mur, or move to strike out, if he deem the matter plead¬
ed immaterial, or no good defence, though true. Are-
pleader, will, however, be awarded by the court, in case
all the issues submitted to the jury be immaterial.
In an action on the case properly so called, that is, an
action to which the general issue of not guilty may be
pleaded, as in an action for slanderous words spoken, or
for inditing, printing, or publishing a libel, the finding, if
for the plaintiff should be entered thus—"On their oaths do
say, that the defendant is guilty of uttering the false and
slanderous words in the declaration mentioned, in manner
and form, as the plaintiff, in declaring, hath alleged, and
they assess the plaintiff's damage, by reason of the pre-
FOitM BOOK.
mises to," &c. If the charge be for libel, say, "On their'
oaths do say, that the defendant is guilty of inditing the
false and libellous matter in the declaration mentioned, (or
of printing and publishing the false and libellous matter in
the declaration mentioned, fyc.) in manner and form as the
plaintiff hath thereof declared against him, &c., and they
assess the plaintiff's damages, by reason of the premises,
to," 8ic. If the finding be for the defendant, say, uOn
their oaths do say, that the defendant is not guilty &c.
It is not unusual, in actions for slander or libel, for the
defendant to plead the general issue, not guilty, and also
to plead specially, that the words spoken and charged as
slanderous, or printed or written and charged as libellous,
were true; in other words, that the plaintiff was guilty
of the crime with which the words charged him. The
jury, in passing upon these pleas, may find, that the de¬
fendant did utter the words, or make the publication,
charged to be slanderous or libellous; and yet say, that he
was well justified therein, because he spoke or published
only the truth. This is putting upon record, and esta¬
blishing by verdict of a jury, that the plaintiff has been
guilty of a crime; and the rule before laid down, which
requires that the jury respond directly to the issues sub¬
mitted to them, if strictly complied with, unavoidably fixes
the charge upon the plaintiff. It is not often desirable or
proper to brand a party with infamy in a civil action; and
consequently a sort of loose practice has grown up, similar
to that which is now established law, applicable to penal
prosecutions for libel, that is, that the jury may find a de¬
fendant not guilty, by a general verdict, without shewing
whether his innocence consists in his not having indited or
DUTIES OF CLERKS,
33
published the libellous matter, or not spoken the slanderous
words, or in the fact of his having spoken, written or pub¬
lished only the truth. %
If the entry be made strictly according to rule, it should
be thus—-"On their oaths do say, that the defendant did
utter the words,' (or did indite, or publish, as the fact may
be, the matter charged as libellous) in tile declaration
mentioned; but the jurors aforesaid., upon .their oaths afore¬
said, do further say, that the defendant wast well justified in
uttering the words in the declaration mentioned, of and
concerning the plaintiff, (or in inditing and publishing,
&c.) because they say, that the words so uttered (or the
matter so indited or published,) were true "
If the entry is to be vaguely made, so as to leave it
uncertain upon what ground the jpry find for the defendant,
it may be entered thus—"On their"paths do say, they find
the issues within joined in favor of the defendant, and that
he is not guilty in manner and form ass the plaintiff hath
thereof declared against him." Therefore, it is consi¬
dered by the court, that the defendant go hence, §tc.
The following mode of entering a verdict and judg-*
ment, though itis loose and informal, and. such as cannot
receive the approbation of any one \vho regards technical
propriety, has yet been sanctioned by judicial determina,--
tion in this State, and may be resorted to where a clerk
has doubts of his ability to make hjs entry strictly accords
ing to rule. It is applicable to all forms of action,t
i'This day came the parties by their Attorneys, and
thereupon came a jury of good and lawful men, to wit: E,
F- Gv H. &c. who being elected, tried and sworn, the
truth to speak upon the issues joined, on their oaths do say,
34
FORM BOOK.
they find the issues joined in favor of the plaintiff, and
they assess his damage, by reason of the detention of the
debt of, &c. to &c," (if the action he debt; if any other
action," by reason of the premises, &c.)
CHAPTER V.
Covenant.
The action of covenant is brought upon contracts under
seal, to do, or not to do, certain things therein specified;
and the declaration must allege a breach of the covenant,
and that the plaintiff has sustained damage by reason of
such breach.
In this action there is no general issue, and none but
special pleas are put in. The most usual of these is co-
venanls performed; though, any of the pleas before enu-
merated, as showing that the contract was void in its in¬
ception, as infancy, idiocy, lunacy, &c., or the plea of
non est factum, denying the execution of the contract, may
be pleaded to this as well as to the action of debt, and the
entry of the finding of the jury upon such pleas wTill be
the same as in that action. Also, such pleas as arbitra¬
ment and award, accord and satisfaction, tender, &c. may
be put in to this action, and the entries upon them will be
according to the directions before given.
If the plea be covenants performed, and the issue there¬
on found for the plaintiff, the entry should be thus—"On
their oaths do say, that the defendant hath not well and
DUTIES OF CLERKS.
3a
truly kept and performed his covenant in the declaration
mentioned, and they assess the plaintiff's damages, by rea¬
son of the premises, to one hundred dollars. There¬
fore," &c. as in the action on the case.
If the jury find for the defendant, the entry will he,
<'On their oaths do say, that the defendant hath well and
truly kept and performed his said covenant, in the declara¬
tion mentioned, as in pleading he hath alleged," and the
judgment will be, that he go hence, &c.
CHAPTER VI.
Detinue.
Detinue is an action brought for the specific recovery
of property, in possession of the defendant, and to which
the plaintiff claims title. The general issue is non detinet,
that is, that the defendant doth not detain the property
sued for, in manner and form as charged. This plea does
not deny that the defendant has possession of the proper¬
ty, but only that the detention is wrongful, which it is
charged to be in the declaration. It is necessary, in case
the jury find for the plaintiff in this action, that they affix a
value to the property detained, in order that a judgment
may be rendered for that value, to be satisfied in case the
plaintiff should be defeated in the principal object of his
suit, the recovery of the property in specie. The follow¬
ing is the form of a verdict and judgment for the plaintiff.
36
tfORM BOOR.
<cOn their oaths da say, that the defendant doth detain the
negro slave, Dick, in, the declaration mentioned, in manner and
form as the plaintiff hath above thereof declared against him,
and they assess the plaintiff's damage, by reason of such deten¬
tion, to two hundred dollars. Add the jurors aforesaid do further
say, that the said negro man slave, Dick, is of the value of one
thousand dollars. It it therefore corsidered by the court, that
the plaintiff recover of the defendant, the said negro slave, if he
may be had, and the damages by the jury so assessed, for his de¬
tention, and his costs about his suit in this behalf expended, and
that he have thereof his execution. And it is further consider¬
ed by the court, that in case said negro slave may not be had, the
plaintiff recover of the defendant, the said sum of one thousand!
dollars, the value of the said slave, ascertained by the jury as
aforesaid,£nd also the damages so assessed for his detention,
together with the costs aforesaid, and that execution issue.'1
If the finding be for the defendant, the entry should he
thus—"On their oaths do say, that the defendant doth not
detain the negro slave, Dick, in the declaration mention¬
ed, in manner and form as the plaintiff hath above thereof
declared against him, as in pleading he hath alleged:" and
the judgment will be that the defendant go hence, &c,
CHAPTER VII.
Trover.
Trover is an action brought to recover the value of per¬
sonal property, in possession of the defendant, to whieh
-the plaintiff claims title. It is mainly distinguished from
the action of detinue by this feature, that the plaintiff can
DUTIES OP CLERKS.
37
Only recover damages, whilst in detinue, he seeks to reco¬
ver the property specifically, and from trespass, because,
in trover, the defendant is supposed to have come legally
into possession, by finding; and in trespass, the damages
are awarded, for the wrong done by the act of taking pos¬
session. The declaration charges, that the defendant
came into possession of the plaintiff's property, by find¬
ing, and converted and disposed of the same to his own
uge. The charge of finding, is a mere fiction, and need
Mot be proven. The plaintiff has only to show that the
property belongs jof right to him, that the defendant has,
or had it in possession, and has converted it to his own
use. The general issue is not guilty, -And it is generally
the only plea put in, for, under it the defendant can show
title in himself, or some other person besides the plaintiff,
that he has not nor never had possession, or that, having
possession, he has not converted the property to his own
use.
If the jury find for the plaintiff, the verdict may be en¬
tered thus: "On their oaths do saj*, that the defendant/is
guilty of the trover and conversion in the declaration men¬
tioned, in manner and form as the plaintiff hath above
thereof declared against him, and they assess the plain¬
tiff's damage, by reason of the premises, io one .hundred
dollars. It is therefore considered by the* court," &c. as
in the action on the case. If the finding * be for the de¬
fendant, say, "On their oaths do say, that the defendant
is not guilty of the trover and conversion in the declara¬
tion mentioned, as in the pleading he hath alleged;" and
the judgment will be "that he go hence," &c.
4
33
FORM BOOK
CHAPTER VIII.
Trespass.
Trespass vi et armis, that is, with force and arms, is an
action brought to recover damages for a forcible violation
of the rights of another, in his person, in his personal prop¬
erty, or in his real estate. Thus it is the proper action to
be brought for an assault and battery, for taking away per¬
sonal property, or for damages done to real property, as
cutting down timber, &c. The general issue is not guilty,
whatever may be the nature of the injury done, and it is
not often that any other plea is put in. Where special pleas
are pleaded, they usually contain matter in justification of
the act complained of, as the plea pf son assault demesne,
that the defendant made the first assault, molliter manus
imposuit, that is, that the defendant gently restrained the
plaintiff from doing some illegal act, or if the defendant be a
sheriff or other officer of the law, he may plead that he
was acting in obedience to a precept addressed to him by
aGourtof competent jurisdiction, &c. If a verdict be
found for the plaintiff, the entry should be, "On their oaths
do say, that the defendant is guilty of the trespass with
force and arms in the declaration mentioned, in manner and
form as the plaintiff in declaring hath alleged; and they as¬
sess the plaintiff's damages, by reason of the premises, to
one hundred dollars. Therefore, it is considered by the
court," &c.
If the jury find for the defendant say, "On their oaths
do say, that the defendant is not guilty of the trespass with
force and arms in the declaration mentioned, as in plead-
DUTIES OF CLERKS.
39
mg he hath alleged," and the judgment will be, "that he
go hence," &c.
If both the general issue and a plea of justification be
pleaded, and issue joined thereon, and the jury find that
that defendant did the act complained of, but that he was
justified in ,so doing, by reason of the matter pleaded in
justification, the entry should be made thus: "On their,
oaths do say, that the defendant did assault the plaintiff, in
manner and form as the plaintiff in declaring hath alleged;
but that the plaintiff did first assault the defendant, as the
defendant, in his plea secondly above pleaded, hath
alleged," (or, icbut that he gently laid his hand upon him,
in order to restrain him from a breach of the peace," &c.
(according to the nature of the justification set up,) or,
"but that in so doing, the defendant acted in obedience to
a lawful precept to him addressed," &c.) and the judg
ment will be, "that he go hence," &c.
CHAPTER IX.
Ejectment.
Ejectment is an action brought by a person claiming
title to land, or to the possession of land, but not in pos¬
session, against a person in possession, but who is sup¬
posed to have no title, or at least, no right to be in posses¬
sion. It is denominated a possessory action, because, in
it, nothing but the possession can be recovered, though.it
40
FORM BOOK".
is the only action in use for deciding not only the right of
immediate possession, but also the title to the land itself.
Consequently, we see, in this action, the title to land liti¬
gated by persons claiming altogether adversely; and also,
the right to possession, between a landlord and the tenant
'who has continued to hold after the expiration of his term;
between the tenant and his landlord, who continues in pos¬
session, notwithstanding a contract to let, and between
different lessees, claiming under the same landlord. The
action is founded upon a fiction, which, though so familiar
to lawyers as to be almost lost sight of, is hut imperfect¬
ly, or not all, understood by the rest of the world; yet, as
this fiction is never once lost sight of throughout the whole
progress of an ejectment suit, and as all the entries recog¬
nize it as fact, it becomes indispensably necessary, that
a clerk should understand something of its nature.
Suppose that A claims title to land which B has in pos¬
session. He brings suit in the name of John Doe, or John
Den, who, in the declaration, alleges, that A, the person
really interested, called the lessor of the plaintiff, had let the
land in controversy to him, for a term of years then not ex¬
pired; that subsequently and after John Doe, the plaintiff,
had taken possession under the lease, Richard Roe, or
Richard Fen, another ideal person, had entered and for¬
cibly ejected, or driven him out. To reinstate the plain¬
tiff in possession, so that he may occupy the premises
for the remainder of the term of years, is ostensibly the ob¬
ject of the suit; but as, in order to this, he must show a
complete title in A, under whom he claims; the question
of title is thereby directly brought up and becomes the
principal question in the cause.
DUTIES OF CLERKS.
41
On the declaration, (a copy of which is served at the
same time as the writ,) is written a letter, signed by Rich"
ard Roe or Richard Fen, addressed to the actual tenant
of the land, or, i 1 case there be none, to the person
claiming title, though not in possession, informing him that
he, (Roe or Fen, who is called the casual ejector,) has
been sued for the land described in the declaration, that
he has no title nor defenee to set up, and advising him to
appear at the next term, and cause himself to be made de¬
fendant, as otherwise judgment may be taken by default,
and he, (the tenant or claimant,) turned out of possesion.
The writ and a copy of the declaration, with this letter,
must be served upon the person so addressed.
At the return term of the writ, the person in possession,
applies, to be made defendant, in the room and stead of the
casual ejector; or, the person claiming title, may make
application to be admitted in the room and stead of the
tenant upon whom the process was served, and of the
casual ejector, or of the casual ejector alone, according to
the circumstances. This application is granted, as a mat¬
ter of course, but upon certain conditions, which, though
they are imposed as matter of course also, yet tend much
to simplify the action, and disembarrass it of those te¬
dious and vexatious delays incident to other actions. In
fact, the opportunity given to the court, by the interposi¬
tion of a fictitious defendant in the first instance, to im¬
pose upon the real defendant, before he shall be permit¬
ted to enter into the contest, such terms as shall tend to
expedite the ends of justice, constitutes the principal, if
not the only reason which can be given, for the introduc¬
tion of a character altogether ideal, and who is not again
42
FORM BOOK.
heard of in the action. The terms thus imposed are, tha£
the defendant shall admit lease, entry and ouster, plead
not guilty, and upon the trial rely upon the title only.
That is, he shall admit that A,. the lessor of the plaintiff,
as he is called, granted a lease of the premises to John
Doe; that John Doe, by virtue thereof took possession,
or entered, and that Richard Roe, the casual ejector, ous¬
ted or drove him out of possession. He must also plead
not guilty, and rely upon the title only; and all the ficti¬
tious matter alleged by the plaintiff being thus admitted,
the naked question of title alone remains in controversy.
The order admitting a defendant, may be made thus:
"On application of C. D. he is admitted a defendant, in
the room and stead of the casual ejector, (or of the tenant
in possession, or of the casual ejector and. of E. F. the
tenant in possession,) upon his agreeing to enter into the
common rule, to admit lease, entry and ouster, plead not
guilty, and. upon the trial rely upon the title only." The
plaintiff may also require that the person admitted- to de¬
fend, give surety for costs, and it is generally done at the
time of admission, and may be entered thus: "And there¬
upon came here into court, G. H., who acknowledged
himself surety of the said C..D. in the penal sum of two
hundred and fifty dollars, to be void on condition the said
C. D. do successfully defend this suit, or pay all costs and
charges which may be adjudged against him in case of
eviction." An order of survey is generally applied for at
the same term, and is granted as a matter of- course. Be¬
ing generally made by consent, the following may be
adopted as a form. "By consent of the parties by their
Attorneys, it is ordered that J. K. survey the premises
MJTIES OF CEERKs. 4S-
ill dispute, according to the directions of either party, and
that he return four fair plats and explanations of his pro¬
ceedings to the next term of this court."
The following is the form of entering, a verdict and
judgment for the plaintiff.
, "On their oaths do say, that the defendant is guilty of the
trespass and ejectment in the declaration mentioned, in manner
and form as the plaintiff hath above thereof complained against
him, and they assess the plaintiff's damage, by reason of the
premises to one cent. If is therefore considered by the court,
that the plaintiff recover of the defendant, his term yet to come,
of and in the lands and tenements in the declaration mentioned,
with the appurtenances, and that he have thereof his writ of ,
possession. And it is further considered by the court, that the
plaintiff recover of the defendant, his damages, by the jury in
form aforesaid assessed, and hiscosts by him about his suit in
this behalf expended, and that he have his execution."
If the jury find for the defendant, then say, "On their
oaths do say, that the defendant is not guilty of the tres¬
pass and ejectment in the declaration mentioned, as in
pleading he hath alleged," and the judgment is, "that he
go hence," &c.
CHAPTER X.
Scire Facias.
Scire facias is a remedy applicable to so many different
kinds of cases, that it would be difficult in few words, to
44
FORM BOOK.
give such a description as would enable a person unac¬
quainted with legal proceeding, to form a tolerably correct
idea of it. It may be said to be founded upon a liability
contracted by a party, and appearing of record, or upon
an act not appearing of record, but by which he has put
himself in a situation to be connected with a record in ex¬
istence; or, the liability may be created by mere operation
of law, without any act of the party, though based upon a
matter of record. Illustrations of the first mentioned
description of liability, may be seen in cases of forfeited
recognizances, bonds given by sureties for costs, &c. which
are always enforced by scire facias. The liability incur¬
red by, an executor or administrator of a defendant, who
dies pending the suit, or of a man who marries a female
defendant during the progress of a suit, and which like¬
wise must be enforced by scire facias, is an instance of
the second. And the heir to whom lands have descended
from his ancestor being liable, to the extent of those lands,
for his ancestor's debt, upon a deficiency of personal es¬
tate, (the debt and the deficiency being matter of record,)
and that liability being enforced only by scire facias, is an
instance of the third description.
The action, or the process, (for it is frequently nothing
more than mesne, that is, intermediate process, being
neither original, such as that issued at the commencement
of a suit, nor final, such as execution on a judgment,)
takes its name from two words, scire facias, "you cause
(him) to know," commonly rendered, "you cause to be
made known," &c., the most important and indispensable
words in the writ. The writ recites so much of the pro¬
ceedings on record, as is necessary to show the rights of
DUTIES OF CLERKS.
45
the plaintiff, and the liability of the defendant, and con¬
cludes by commanding the sheriff or other 'officer, "to
make known to the defendant the tenor of this writ, and
summon him to appear,*&c., and show cause, if any be
has or knows of, why the liability, (whatever it may be,)
should not be enforced." The most usual plea is, that of
nul tiel recordy which goes directly to the merits of the
action, and may be called the general issue. This plea
is so called, from its alleging that there is no such record
as that discrihed in the scire facias. The issue upon this
plea, is not like other issues of fact, tried by a jury, but
must be tried by the court, upon inspection. A judgment
in favor of the plaintiff, upon the plea of nul tiel record,
may be entered thus:
The parties, by their attornies appear, and as well the scire*
facias sued out by the plaintiff, and the record which it purports
to describe, as the plea of the defendant, being seen and inspect ■*
ed by the court, for that it appears to the court that there is ^uch
record as in said scire facias is mentioned and described:—It is
therefore considered by the court, that the plaintiff have execu¬
tion against the defendant, for the sum of five hundred dollars,
the principal debt and damages of the judgment in the scire
facias mentioned, and the sum of one hundred dollars, the inter¬
est accrued thereon since the — day of IS — the day of tha
rendition of said judgment, making together,, tin# sum of six
hundred dollars; as also for the further sum of twenty dollars,
costs of said original suit, together with his costs by him expen¬
ded in suing forth and prosecuting this scire facias. (If tha
proceeding be against an heir, say,) to be levied of the lands,
tenements and real estate of the said--—his ancestor to him
descended.
There are several other pleas which may be put in, as
46
FORM BOOK.
by a defendant in a judgment, an administrator, or execu¬
tor, against whom it is sought to be revived, that he or his
intestate or testator, have paid it; or a person bound in a
recognizance, may plead the surrender of his princi¬
pal, and it is propable he may also plead non est factum,
as it is difficult to conceive how else he could take advan¬
tage of a forgery in the execution of a bond, or of a fraud
in being personated by some one else, where the recog¬
nizance has been taken in court. A person also, against
whom a suit or judgment is sought to be revived, as ex¬
ecutor or administrator, may plead that he is not such ex¬
ecutor or administrator, all of which pleas may be tried by
a jury. Where the pleas are tried by jury, it is believed
the numerous precedents heretofore given of the manner
of entering verdicts, will enable the clerk to adapt his en¬
tries to any case likely to arise. He must be careful where
the scire facias is to enforce a former judgment, not to
give judgment that the plaintff recover, but that he have
execution, the recovery having been already had.
CHAPTER XL
Demurrer.
A demurrer is a plea, if it may be so called, addressed
to the court, and the issue thereon is called an issue in law,
and must be tried by the court and not by a jury, as is the
case where the issue regards matter of fact. It derives its
DUTIES OP CLERKS.
47
name from a latin word, signifying to stop, to delay, and
by demurring, the party alleges the insufficiency of the
facts set up by his antagonist, to effect the object, desired,
even if true, and submits to the court the question whether
he is bound to make any other answer. A demurrer may
be put into any part of the pleadings, whether declaration,
plea, replication or rejoinder, &c., except to a demurrer
itself.
The following is the form of entering judgment on a
demurrer to a declaration, where the demurrer is sustain¬
ed.
The parties by their Attorneys appear, and the demurrer of
the defendant, to the declaration of the plaintiff having been
argued, and the court being well advised in the premises; for
that it appears to the court that the said declaration and the
matters therein contained, are not sufficient in law to enable
the plaintiff to have and maintain his aforesaid action thereof
against the defendant : It is therefore considered by the court,
that the said demurrer be sustained, and that the defendant go
hence without day, and recover of the plaintiff his costs by
him about his defence in this behaff expended.
If the demurrer be overruled and there be no other
plea, the entry should be as follows:
The parties by their Attorneys appear, and the demurrer of
the defendant to the declaration of the plaintiff, having been
argued, and the court being well advised in the premises; for
that it appears to the court, that the matter of the said demur¬
rer is not sufficient in law, to preclude the plaintiff from having
and maintaining his aforesaid action thereof against the defend¬
ant: It is therefore considered by the court, that said demur¬
rer be overruled. (If the action be debt, go on to say:) And
at is further considered by the court, that the plaintiff recover of
48
FORM BOOK.
the defendant, the debt of one hundred dollars, in the declara¬
tion mentioned, and the further sum of six dollars, the interest
accrued thereon, as damages for the detention thereof, and his
costs by him about his suit in this behalf expended, and that he
have his execution. (If the action be case, instead of the last
precedent, go on, after overruling the demurrer, as follows:)
And it is further considered by the court, that the plaintiff re¬
cover of the defendant, such damages as he hath sustained, by
reason of the non-performance of the promises and underta¬
kings in the declaration mentioned; (if covenant, by reason of
the non-performance of the covenants and agreements in the
declaration mentioned; if trover, by reason of the trover and con]
version in . the declaration mentioned; if trespass, by reason
of the trespass, with force and arms, in the declaration men¬
tioned, &c,) but because those damages are, uncertain, there¬
fore, let a jury come to inquire thereof at the next term, until
which time the cause is continued.
If the demurrer be not filed at the return term of the
writ, or, if filed, be not disposed of, then the writ of in¬
quiry of damages, awarded as above, must be executed at
the time it is disposed of, and the entry may be made thus:
After overruling the demurrer, go on to say, "Therefore,
it is considered by the court, that the plaintiff recover of
the defendant, such damage as he hath sustained, by reason
of &c. (as above,) but because those damages are uncer¬
tain, cornea jury of good and lawful men, to wit, E. F.,
G. H., &c., who being elected, tried and sworn, well and
truly to inquire thereof, on their oaths do say, they assess
the plaintiff's damages by reason of the premises, to five
hundred dollars. Therefore, it is considered by the court."
&c.
It will not often occur, that a defendant will rest his
whole defence on a point of law, raised by demurrer; andas
DUTIES OF CLERKS.
49
%y our act of assembly, he is precluded from both demur¬
ring and pleading to the whole cause of action, the conse¬
quence is, that demurrers to declarations are seldom seen,
except in suits in which the cause of action is set forth
differently in several counts of the declaration, and where
the defendant may demur to some and plead to others, at
the same time, without laying himself liable to have judg¬
ment taken against him, by overruling his demurrer only.
In such case, it is only necessary to enter the judgment
overruling the demurrer, without saying any thing about the
pleas, until they are to be passed upon by the jury.
Demurrers to pleas are much more frequent than to
declarations. A judgment sustaining a demurrer to a plea
f may be. entered thus: "The demurrer of the plaintiff to
the plea of the defendant, secondly, (or as the case may
be,) by him above pleaded, having been argued, and the
premises being well understood by the court, for that it
appears to the court, that the said second plea, and the
matters therein contained, in manner and form as the same
are therein set forth and pleaded, are not sufficient in law,
to preclude the plaintiff from having and maintaining his
aforesaid action thereof against the defendant. It is there¬
fore considered by the court, that said demurrer be sus¬
tained."
A
50
FORM BOOK.
CHAPTER XII.
Of the forms of proceedings by and against executors and
administrators.
If the demurrer be overruled, say, "for that it appears
to the court, that the plea of the defendant, by him sec¬
ondly above pleaded, is sufficient in law to preclude the
plaintiff from having and maintaining his aforesaid action
thereof against the defendant; it is therefore considered
by the court, that the demurrer of the plaintiff be over¬
ruled, and that he put in a further and sufficient answer to
said plea," (that is, reply, ortake issue.)
The different proceedings necessary to bring the exe-
cutors or administrators of persons who die pending a suit
before the court, and the forms of entering verdicts and
judgments against them will now be attended to.
When a party litigant dies, the first thing to be done in the
cause, at the succeeding tfermof the court is, to stiggest his
death, which may be done thus: "The death of A. B.
the plaintiff, (or defendant,) in this cause, is suggested to
the court, and the same is not denied." If he be the
plaintiff whose death is so suggested, nothing more can be
done until his executor or administrator comes to have the
suit revived in his name. When the suit is to be so re¬
vived, the entry may be made thus: "On application of
C. D., executor of the last will and testament, (or ad¬
ministrator,) of A. B., the plaintiff in this cause, whose
death hath heretofore been suggested to the court, and
upon the said C. I), producing to the court letters testa¬
mentary, (or of administration,) upon the estate of the
DUTIES OF CLERKS.
51
said A. B., granted to him by the county court of
county, it is ordered, that this suit be revived in the name
of the said C. D., as such executor, (or administrator,)
and stand in the same plight and condition as at the death
of the said A. B., and abatement thereof."
If the death of the defendant be suggested, nothing
more can be done until the qualification of an executor or
administrator. If such qualification have already been
made, at the time of the suggestion, and be so suggested,
go on, after entering the suggestion of death, thus: ''And
it is further suggested to the court, that C. D. hath taken
out letters testamentary, (or, of administration,) upon the
estate of the said A. B. It is therefore, on motion of the
plaintiff, by his Attorney, ordered by the court, that a
scire facias issue against the said C. D., requiring him to
appear at the next term of this court, and show cause, if
any he has or knows of, why this suit shall notbe revived
against him, as executor, (or administrator,) as aforesaid,
and stand in the same plight and condition as at the death
of the said A. B., and abatement thereof."
Upon the return of this scire facias executed, the suit
will be revived, upon motion, as a matter of course, un
less some good cause to the contrary be shown by plea,
as that the party is not executor or administrator, &c
Generally, however, there is no contest where the suit is
of such a character as that it can be revived at all against
the personal representative of the deceased. An order of
reviver may be made thus:
The plaintiff by his attorney appears, and a scire facias hav¬
ing been served upon C. D., administrator of the said A. B.,
52
FORM'BOOK.
requiring him to appear at the present term of this court, and
show cause, if any he has or knows of, why this suit shall not
be revived against him, &c., and he having failed to show cause
to the bontrary, it is therefore, on motion of the plaintiff by his
attorney, ordered by the court, that this suit be revived against
the said C. D., administrator as aforesaid, and stand in the same
plight and condition as at the death of the said A. B., and abate¬
ment thereof.
All judgments must be rendered against executors or
administrators to be levied of the goods and chattels, rights
and credits of their testators or intestates in their hands
to be administered, and must be so expressed in the judg¬
ment. An administrator or executor defendant, in default
of assets, and not having pleaded fully administered, or
the plea,, if put in, having been found against him, is liable
to pay costs out of his own estate. When the plea of
fully administered is pleaded, the finding of the jury upon
it should be entered specially, and in such manner as to
show precisely the state of the administrator's accounts.
The following may be adopted as the form of entering
a verdict and judgment against an administrator, who has.
pleaded fully administered, and the plea been found partly
in his favor and partly against him.
On their oaths do say, that the intestate of the defendant, m
his lifetime, did not pay to the plaintiff; the debt of one hun¬
dred dollars, in the declaration mentioned. And they do further
say, that the defendant, since the death of the said A. B., the
intestate, hath not paid said debt, and they assess the plaintiff's
damage, by reason of the detention thereof, to thirty dollars,
besides costs. And the jurors aforesaid, upon their paths afore¬
said, do further say, that the defendant hath not fully adminis¬
tered the goods and chattels, rights and credits of his intestate
DUTIES OF CLERKS1.
53
which have coine to his hands to be administered; but that he
hath now in his hands to be administered, goods, chattels and
assets, which were of his intestate, to the amount of one hun¬
dred dollars. It is therefore considered by the court, that the
plaintiff recover of the defendant, his debt of one hundred dol¬
lars aforesaid, and his damages by the jury in form aforesaid
assessed, together with his costs by him about his suit in this
behalf expended, and that he have thereof his execution, to be
levied, as to the sum of one hundered dollars, part of the debt
and damages aforesaid, of the goods, chattels and assets, of his
intestate, above ascertained by the jury, to be in the hands of
the defendant to be administered; and as to the other sum of
thirty dollars, balance of the debt and damages aforesaid, and
the costs aforesaid, to be levied of the goods and chattels,
rights and credits of his intestate, which may hereafter come to
the hands of the defendant to be administered.
The plaintiff may apply for a scire facias against the
heirs or devisees of the intestate or testator; in which
case, the entry should proceed as follows: "And that a
scire facias issue against the heirs (or devisees) of the said
A. B., the intestate, (or testator,) requiring them to ap¬
pear at the next term of this court, and show cause, if any
they have or know of, why the plaintiff shall not have ex¬
ecution against them, of the debt and damages aforesaid,
(or, in the case now supposed, of the balance of the debt
and damages aforesaid,) to be levied of the lands and tene¬
ments to them descended from the said A. B., the intes¬
tate" (or testator.)
The finding of the jury in favor of the administrator or
executor is not conclusive, but by the act of 1784, may
be contested by the heirs or devisees. The manner in
which this contest is to be got before the court, is not
pointed out by the act, nor is ther^ it is believed, any
FORM BOOK"
practice established on the subject. The act provide^
that heirs and devisees may make any defence which the
administrators or executors might have made; and further,
that when they are sought to be made liable by scire facias,
they may contest, by a collateral issue, with the personal
representative, the truth of his plea of fully administered.
But how the administrator is to be got before the court,
whether by scire facias, service of notice in writing, or of a
copy of an order to be made, is not settled. The entry
of the finding of the jury upon the issue thus made, if for
the heirs or devisees, will be the same as where the creditor
is the plaintiff, except that the jury should also find, if such
be the fact, that the defendant has wasted or concealed the
assets; in which event, the judgment of the court will be
rendered against him, to be levied de bonis propriis, that
is, of his own goods and chattels, lands and tenements
If the plea be again found in favor of the administrator,
the judgment will be that the plaintiff have execution to be
levied of the lands and. tenements descended or devised,
&c.
Where the plea of fully administered is found wholly in
favor of the administrator, the finding should be entered
thus: uOn their oaths do say, that the defendant hath
fully administered the goods and chattels, rights and cred¬
its of his intestate, (or testator,) which came to his hands
to be administered; as in pleading he hath alleged. It is
therefore considered by the court, that the plaintiff recover
of the defendant, his debt aforesaid, and his damages by
the jury in form aforesaid assessed, and his costs about his
suit in this behalf expended, and that he have his execu¬
tion, to be levied of the goods, chattels and assets of his>
LtfTlES OP CLERK:s.
intestate (or testator,) which may hereafter come to
the hands of the defendant to be- administered, and that a
scire facias issue," &c.
When the plea is found wholly against the administratoi
or executor, the d&try maybe made thus: "On their oaths-
do say, that the defendant hath not fully administered the
goods and chattels, rights and credits of his intestate (or
testator,) which have come to his hands to be administer¬
ed; but that he hath now in his hands, unadministered,
goods, chattels and assets, which were of his intestate, suffi¬
cient to satisfy the plaintiff his debt and damages afore¬
said, and his costs in this behalf expended. Therefore,"
&c. (give judgment for debt, damages and costs, to be
levied of the goods, chattels and assets in the hands of the
defendant, &c.)
CHAPTER XIII.
Of cases brought by appeal or certiorari from before
Justices of the Peace.
Since the county courts have been deprived of jurisdic¬
tion of pleas, no cause can be brought into the Circuit
Courts by writ of error, or by appeal in the nature of a
writ of error; and as error does not lie from the judgment
of a justice of the peace, it is unnecessary to speak of the
forms of entries in such cases. But the judgments of
justices are often appealed from, or brought into the circuit
56
FORM BOOK'
court by certiorari, arid it is necessary to understand the
practice in such cases.
Where the cause has come up by appeal, it stands foi
trial at the first term, and is to be proceeded in just as a
cause at issue, brought in the court. Iir swearing the jury,
however, you should not say, "well and truly try the is¬
sues joined," as in cases where there have been pleadings,
but, "well and truly try the matters in- dispute, between
A. B. plaintiff, and C. D., defendant) and a true verdict
give, according to your evidence," &c.
The following may be adopted as a form for entering
the finding of the jury, the judgment and the affirmance,
Where the finding is for the plaintiff.
The parties by their Attornies appear, and a jury &e. on their
oaths do say, that the defendant was indebted to the plaintiff the
sum of twenty dollars, at the time of the rendition of the judg¬
ment by the justice of the peace., It is thereupon, on motion of
the plaintiff by his Attorney, considered by the court, that the
judgment of the justice of the peace be affirmed, and that the
plaintiff recover of the defendant, and E. and G. H., his
securities in appeal, said sum of twenty dollars, with interest
thereon, at the rate of twelve and a half per cent per annum,
from the —— day of 18— the day of the rendition of the
judgment by the justice of the peace, until this day, and his
costs in this behalf expended, and that he have his execution.
If the jury find the defendant indebted to the plaintiff in
a less amount than that for which judgment was given by
the justice, there can be no affirmance, but the plaintiff
will have judgment against the defendant for the amount
found to he due, with costs. The entry should then be)
"On their oaths do say, that the defendant is indebted to
DUTIES OF CLERKS.
57
the plaintiff, in the sum of twenty dollars. It is therefore
considered by the court, that the plaintiff recover of the
defendant, said sum of twenty dollars, and his costs," &c.
If the finding of the jury be for a greater amount than
the judgment of the justice, his judgment will be affirm¬
ed, with twelve and a half per cent interest; or if the
plaintiff prefer it, he may have judgment against the de¬
fendant and his sureties for the amount really due, with
six per cent up to the time of finding the verdict.
Where a cause has been brought up by certiorari, the
first proceeding usually had is, a motion on the part of the
plaintiff, to dismiss the certiorari and discharge the super¬
sedeas, (if one has been granted.) This motion may be
entered thus: "The plaintiff, by his Attorney, moves the
court to dismiss the certiorari, and discharge the superse¬
deas heretofore granted in this pause, which motion is or-*-
dered to lie over for further consideration.
If this motion, upon argument, be granted, the entry
tvill be thus: "On consideration of the motion heretofore
made by the plaintiff, the s^pie having been argued by
counsel, it is ordered, that the certiorari heretofore granted
in this cause, be dismissed, and the supersedeas discharg¬
ed. And it is further considered by the court, that the
judgment of the justice of the peace be affirmed, and that
the plaintiff recover of the defendant, and G. H., his sure¬
ty in the bond given for the certiorari and supersedeas, the
ium of twenty dollars, the amount of the judgment render¬
ed by the justice of the peace, with interest thereon at the
rate of twelve and a half per cent per annum, from the
day of 18— until this day, and his costs by
him about his suit in this behalf expended, and that he have
his execution."
5S
FORM BOOK.
If the motion be overruled, the entry may be made thus:
"And on consideration of the motion heretore made, the
same having been argued by counsel, it is ordered, that
said motion be overruled, and that a new trial of the cause
be had in this court, at the next term."
If no motion be made at the first term to dismiss the
certiorari, the right to have the cause disposed of by that
means is waived, and the cause will stand for trial on the
merits at the next succeeding term; as if such motion had been
made and overruled. When such cause comes on for trial,
the proceedings will be exactly similar to those in cases
brought up by appeal.
CHAPTER XIV.
Judgments on motion.
Judgments on motion are given in numerous cases and
constitute a very difficult and laborious part of the duties
of a^cl^rk. Such judgment may be rendered against a
principal in favor of a surety who has paid the money, or
against whom there is a judgment; against a surety in favor
of a co-surety who has paid the debt, or against whom
there is a judgment; against a sheriff or constable and his
sureties in favor of the plaintiff in an execution, for failure
to return, or to pay over money collected by virtue of
such execution; or in favor of a defendant, whose proper¬
ty has been sold under execution, for an amount more than
iDUTIES OP CLERKS.
59
Sufficient to satisfy it, against a sheriff or other officer and
his sureties, for having failed to pay over the overplus;
against an attorney who has collected money and failed to
pay it over to the party entitled; against a clerk and his
sureties, who has failed to render an account of taxes on
suits by him collected, or to pay the same to the treasurer,
though an account has been rendered. Also, against a
clerk and his sureties, in favor of any individual whose
money, paid into his hands, has not been paid over upon
demand, and probably in many other cases. It may be
laid down as a general rule in entering judgments upon mo¬
tion, that every fact, the existence of which is necessary,
to authorise the court to give the judgment, must be clearly
shown in the preamble of the judgment, to have been
proven to the satisfaction of the court, either by compe¬
tent testimony or the verdict of a jury; and this is the
only general rule applicable to the subject.
Form, of judgment by a surety against a principal.
This day came A. B. by his Attorney E. F.3 and moved the
court for judgment against C. D. And it appeared to the satis¬
faction of the court, that heretofore, to wit, on the 10th day of
december, 18S6, there Was rendered in this coxlrt, a judgment
against the said A. B., in favor of G. H., for the sum of five
hundred and thirty dollars, debt and damages, and ten dollars
costs, which judgment was afterwards, to wit, on the 1st day of
January in the year 18S7, satisfied to the said G. H., by the pay¬
ment, by the said A. B. to the sheriff of Davidson county, of
the sum of five hundred and sixty dollars, in full of the debt,
damages and costs aforesaid, with interest and commissions
thereon, up to the time of said payment. It further appeared
to the court, that said judgment was rendered upon a bill single
«r writing obligatory, in the words and figures following, to wit:
60
FO-RM BOOK.
"Nashville, 10th December 1836. Six months after date, we
or either of us premise to pay to G. H. or order five hundred
dollars, for value received. Witness ®ur hands and seals, the
date above. Signed, C. D. [seal.] ,A. B. [seal.]" And it is sta¬
ted to the court by the said A. B., that he executed said bill
single or writing obligatory, as the surety of the said C. D.,* but
the fact not appearing to the satisfaction of the court, a jury
of good and lawful men is empannelled, to wit, I. J., K. L. &c.
who being elected, tried and sworn, well and truly to inquire of
and ascertain that fact, on their oaths do say, that the said A.
B. did execute said bill single, as the surety of the said C. D. It
is therefore considered by the court, that the said A. B. recover
of the said C. D. the said sum of five hundred and sixty dollars,
so paid by him, for debt, damages, interest, commissions and
costs aforesaid, with interest thereon, at the rate of six per cen¬
tum per annum, from the said 1st day of January 1837, until
this day, being the further sum of twenty-five dollars, making
together, the sum of five hundred and eighty-five dollars, and
his costs in thi3 behalf expended, and that he have his execu¬
tion.
By a surety against two co-sureties.
This day came here into court A. B. by his Attorney G. H.
tand moved the court for judgment against C. D. andE. F. And
it appeared to the satisfaction of the court, that heretofore, to
wit: on the 10th day of December, 1836, a judgment was ren¬
dered in this court, in favor of I. J. against the said A. B. and
K. L. for the sum of five hundred and thirty dollars, debt and
damages, and ten dollars costs of suit, which judgment was af¬
terwards, to wit: on the first day of January, in the year 1837,
satisfied in full by the said A. B., by the payment, to the Sheriff"
of Davidson county, of the sum of five hundred and sixty dol¬
lars, debt, damages and costs aforesaid, with interest and com-
duties op clerks.
6!
missions up to the time of said payment. It further appeared
to the satisfaction of the court, the said judgment was rendered
upon a bill single or writing obligatory, which is in the words
and figures following, to wit-: "Nashville, 10th December, 1885.
Six months after date, we or either of us promise to pay to I. J
or order, five hundred dollars, for value received, with interest
from the date hereof. Witness our hands and seals. K. L.
(seal.) A. B. (seal.) C. D. (seal.) E. F. (seal.) And it is stat¬
ed to the court, that the said A. B., C. D. and E. F. executed
said bill single or writing obligatory as sureties of the said K.
L., but the fact not appearing to the satisfaction of the court, a
jury of good and lawful men is impannelled, to wit: M. N , O.
P. &c. who being elected, tried and sworn, well and truly to in¬
quire of and ascertain that fact, on their oaths do say, that the
said A. B., C. D. and E. F. did execute said bill single or writ¬
ing obligatory, as sureties of the said K. L. It is therefore con¬
sidered by the court, that the said A. B. recover of the said C.
D. and E. F. respectively, theix ratable proportions of the
amount so paid by him, in discharge of said judgment; that is
to say: that he recover of-the said C. D. the sum of one hun¬
dred and eighty-six dollars sixty-six and two thirds cents, being
the one third part of the amount so paid, with interest thereon
from the said first day of January, 1837, until this day, being the
further sum of ten dollars, making together, the sum of one
hundred and ninety-six dollars sixty-six and two thirds cents, to¬
gether with his costs about his motion and judgment ii> this be¬
half expended. And that he also recover of the said E, F. the
sum of one hundred and eighty-six dollars sixty-six and two
thirds cents, being another one thil'dpart of the amount paid as
aforesaid, with interest thereon as aforesaid, amounting to the
further sum of ten dollars, making together the sum of one
hundred and" ninety-six dollars sixty-six and two thirds cents,
and also his costs by him about his motion and judgment in this
behalf expended. And that executions issue against the said
C. D. and E. F, respectively, for the collection of said sums.
6
62
FORM BOOK.
Against a Sheriff and his sureties, for failure to pay over mo¬
ney collected on execution.
This (lay came here into court A. B. by his Attorney I. J. and
moved the court for judgment against C. D, Sheriff of David¬
son county, and E. F. and G. H. the sureties in the bond given
by the said C. D. for the faithful performance of the duties of
his said office. And it appeared to the satisfaction of the court,
that heretofore, to wit: on the 10th day of December, in the
year 1836, there was rendered, in this court, a judgment, in fa¬
vor of the said A. B. against K. L. for the sum of one hundred
dollars, debt and damages, and ten dollars costs of suit; upon
which judgment, there was afterwards, to wit: on the 2Dth day
of December, in the year aforesaid, issued a writ offieri facias,
tested the first Monday in December, in the year aforesaid, and
returnable on the first Monday in March next, thereafter, being
the first Monday in March, in the j*ear 1837, which was after¬
wards, to wit: on the first day of January, 1837, placed in the
hands of the said C. D. Sheriff as aforesaid. It further appear¬
ed to the court, that on the 10th day of January, in the year
1887, the said execution was satisfied in full to the said C. D.
Sheriff as aforesaid, by the said K. L., by the payment of one
hundred dollars and fifty cents for the debt and damages afore¬
said with interest thereon, and of ten dollars, the costs of suit
aforesaid, which he has failed to pay over or account for as re¬
quired by law. And it further appeared to the satisfaction of
the court, that the said C. D. at the time of his appointment as
Sheriff as aforesaid, with the said E. F. and G. II. as his sure¬
ties, entered into bond, in the penal sum of tweb e thousand five
hundred dollars, with condition, "that if the said C. D. should
well and truly execute,- and due return make, of process and
precepts to him directed, and pay and satisfy all fees and sums
of money by him received or levied by virtue of any process
into the proper office, to which the same by the tenor thereof
ought to be paid, or to the person- or persons to whom the same
shall be due, his, her on their executors, administrators, attor¬
neys or agents," 8tc. then the said obligation was to be void,
otherwtse to remain in full force and effect.
DUTIES OF CLERKS.
63
(If the Sheriff live in another county and the ten days
notice required in such cases have been given, then go on
to say;)
And it further appeared to the satisfaction of the court, that
ten days notice has been given to the said C. D., of the time
and place of making this motion. It is therefore considered by
the court, that the said A. B. recover of the said C. D. and E,
F. and G. H,, his sureties as aforesaid, the said sum of one
hundred dollars and fifty cents, the debt, damages and interest
as aforesaid; and the further sum of ten dollars, the costs afore¬
said, making together the sum of one hundred and ten dollars
and fifty cents, with twelve and a half percent, damages there¬
on, being the further sum of twelve dollars and eighty-one and
a fourth cents, amounting in the whole to one hundred and
twenty-four dollars thirty-one and a fourth cents, and his costs by
him about his motion and judgment in this behalf expended,
and that he have his execution.
By a defendant in execution against a sheriff and his
sureties, who has collected more than the amount due, and
failed to refund the overplus.
This day came A. B. by his Attorney I. J., and moved the
court for judgment against C. D. Sheriff of Davidson county,
qnd E. F. and G. H. his sureties. And it appeared to the sa¬
tisfaction of the court, that heretofore, to wit: on the 10th da^
of December, in the year 1836, there was rendered in this court
a judgment against the said A. B. in favor of K. L. for the sum
of one hundred and fifty dollars, debt and damages, and ten
dollars, costs of suit. It further appeared, that afterwards, to
wit: on the first day of January, in the year 1837, a writ ofJiert
facias was issued on said judgment, directed to the said C.D.
Sheriff as aforesaid; who, by virtue thereof levied upon and
64
FORM BOOK.
afterwards, to wit: on the 25tl^day of January, 1937, sold at
public auction as the property of the said A. B. and in satisfac¬
tion of said judgment and writ of fieri facias, one negro man
slave, named Dick, for the sum of six hundred dollars. It fur¬
ther app?ared, that after satisfying the judgment aforesaid, with
all interest, commissions, and other legal fees and expenses ac¬
cruing thereon up to the time of said sale, there remained in the
hands of the saidC. D. of the amount for which said slave was
sold as aforesaid, a surplus of four hundred and twenty-five
dollars. It further appeared to the court, that afterwards, to
wit: on the first day of March, in the year 1837, the said A. B.
had demanded of the said C. D. the said sum of four hundred
and twenty-five dollars, the payment whereof the said C. D.
then and there failed and refused to make. It further appeared
that days notice in writing has been given to the said C. D.
by the said A. B. of the time and place of making this motion.
And it also appearing to the court, that the said E. F. nnd G. HL
are the sureties of the said C. D. in the bond given by him for
the faithful performance of his duties, and for the payment
over, of all monies which might come to his hands, as sheriff,
to the persons entitled thereto. It is therefore considered by the
murt, that the plaintiff recover of the said C. D. sheriff as
aforesaid, and E. F. and G. H. his sureties as aforesaid, said
sum of four hundred and seventy-five dollars, and his costs in
this behalf expended, and that he have his execution.
Against an Attorney for money paid to him for his client
This day came A. B. by I. J. his Attorney, and moved the
court for judgment against C. D. And it appeared to the satis¬
faction of the court, that heretofore, to witr on the first day of
January, in the year 1S37, there was paid into the hands of the
said C. D. by the sheriff of Davidson county, the sum of two
hundred and fifty dollars, being the amount in full of the debt
and damages^ with interest thereon, up to that time, of a judg-
DUTIES OF CLERKS.
65
ment before that time rendered in this court, in favor of the said
A. B. against G. H., and which money was paid to the said C.
D. as the Attorney of the said A. B. in said suit. It further ap¬
peared to the court, that afterwards, to wit: on the 10th day of
January, in the year 1837, aforesaid, the said A. B. demanded
from the said C. Dj *he sum of two hundred and forty dollars,
being the sum so paid to the said C. D. for the said A. B. as
aforesaid, deducting therefrom ten dollars, to be retained by the
said C. D. as a fee for his labor, care and attention as an attor¬
ney in the recovery of said judgment, and collection pf said
moneyj and which payment the said C. D. then and there failed
and refused to make. At it also appearing to the court, that
five days notice has been given to the said C. D. by the said A
B. of the time and place of making this motion. It is therefore
considered by the court, that the said A. B. recover of the said
C. D. said sum of two hundred and forty dollars, the balance of
said sum of two hundred and fifty dollars, remaining in his hands,
after deducting therefrom the sum of ten dollars, as aforesaid,
with interest thereon, at the rate of twelve and one half per
centum per annuity from the said 10th day of January, in the
year 1837, the day on which the payment thereof was demand¬
ed as aforesaid, being the further sum of ten dollars, making
together the sura of two hundred and fifty dollars, and his costs
by him about his motion and judgment in this behalf expended,
and that he have his execution.
Jlgainst a Clerk and his sureties for failure to render tin
account of taxes on suits, fines and forfeitures.
This day came A. B. Governor of the State of Tennessee,
who sues for the use of C. D. Treasurer of the State, by I.
J. Attorney General for the Solicitorial District, and mov¬
ed the court for judgment against E. F. Clerk of the Circuit
Court for the county of and G. H. and K. L. his sureties
in office. And it thereupon appeared to the satisfaction of the
6*
66
FORM BOOR:.
court, that the said E. F. had failed and neglected to render an
account of taxes on suits, fines and forfeitures, by him collect¬
ed as clerk as aforesaid, or to pay the same over to the said C.
D. treasurer as aforesaid, for the year ending on the 30th day of
September, 1336, as by law he was bound to do. It also appear-
ingto the couit, that the said E. F. at the time of his appoint¬
ment as clerk as aforesaid, had entered into bond with the said
G. H. and K. L. his sureties, in the penalty of dollars, with
condition that, &c. (set out so much of the condition as is appli¬
cable,) then said obligation was to be void, else to be and re¬
main in full force and virtue. It is therefore considered, that
the plaintiff recover of the defendants the said sum of dol-
larsj the amount of the penalty of said bond, together with his
costs in this behalf expended, and that he have his execution.
Where an account has been rendered, but the money
has not been paid, the judgment should be given for the
amount of the penalty, to be discharged by the payment
of the amount really due, according to -precedent gi¬
ven for rendering judgment in the action of debt upon pe¬
nal bond. If no account has been rendered, although the
parties may afterwards discharge the judgment by showing
and paying the amount actually collected, still, as this is a
right given by act of Assembly, the judgment need not
say any thing about it.
Jlgainst a Constable and his sureties for failure to pay
over money collected on a note without judgment or war¬
rant.
This day comes here into court, A. B. by his Attorney E. F.
and moves the court for judgment against C. D. a Constable of
Davidson county, and G. H. and J. K. hik sureties. And it ap-
DUTIES OF CLERKS.
67
pears to the satisfaction of the court, that herefore, to wit: on
the 10th day of December, 1836, there was placed in the hands
of the said C. D. by the said A. B. a promissory note made by
L. M. for the stun of fifty dollars, dated 10th of April, 1836,
and falling due six months after date, payable to the said A. B.
It further appears to the court, that afterwards, to wit: on the
10th day of January, in the year 1837, said note was paid in full
by the said L. M. to the said C. D. by the payment of the sum
of fifty dollars and seventyyfive cents the principal and interest
due thereon up to that time. It further appears, that after¬
wards, to wit: on the 20th day of January, in the year 1837,
aforesaid, the said A. B. demanded of the said C. D. the sum of
fifty dollars and seventy-five cents, collected as aforesaid, which
payment the said C. D. then and there failed and refused to
make. And a certified copy of the bond of the said C. D., gi¬
ven according to law at the time of bis qualification as Consta¬
ble as aforesaid, being now produced to the court, and five days
notice in writing having been given him of the time and place of"
making this motion by the said A. B. It is considered by the
court, that the said A. B. recover of the said C. D. and G. H.
and J. K. his sureties, the sum of one thousand dollars, the
amount of the penalty of said bond; but which may be dis¬
charged by the payment of the said sum of fifty dollars and
seventy-five cents, with interest thereon at the rate of twelve
and one half per cent, per annum, from the said 20th day of
January, 1837, the day on which the payment of the said sum
was demanded as aforesaid, until this day, and his costs, &c.
The foregoing, with a reference to precedents pre¬
viously given, it is believed will enable a clerk to enter
judgment in any case likely to arise.
68
FORM BOOK.
CHAPTER XV.
Judgments are given by default for want of plea, at the
return term of the writ, in all actions
A judgment by default in the action of debt may be en¬
tered thus—"The plaintiff by his attorney comes, and the
defendant having been solemnly called to come into court,
and plead to the suit brought against him by the plaintiff,
comes not, but makes default. Therefore, it is consider¬
ed by the court, that the plaintiff recover of the defendant,
his debt of one hundred dollars, in the declaration men¬
tioned, and the further sum of three dollars, the interest
accrued thereon, as damages for the detention thereof, and
jhs costs," &c.
If the action be case in assumpsit, say: "Therefore, it
is considered by the court, that the plaintiff recover of the
defendant, his damages, sustained by reason of the non¬
performance of the promises and assumpsions in the de¬
claration mentioned." If case, "his damages sustained by
reason of the wrongs and injuries in the declaration men-*
tion." If covenant, "by reason of the breach of cove-
venant in the declaration mentioned." If detinue, that the
plaintiff recover of the defendant, the negro slave Dick, in
the declaration mentioned, if he may be had, and also his
damages, sustained by reason of the detention thereof:
and in case he may not be had, then that he recover the
value of the said slave, and his damages as aforesaid. But
because it is unknown to the court what damages the plain¬
tiff bath so sustained, or what is the value of the said
slave—therefore, let a jury come to inquire thereof at the
DUTIES OF CLERKS.
next term. If the action be trespass, say, "by reason of
the trespass with force and arms in the declaration men¬
tioned"; if trover, "by reason of the trover and conver¬
sion in the declaration mentioned"—but, because those
damages are uncertain, therefore, let a jury come to in¬
quire thereof at the next term.
The writ of inquiry of damages, rs never issued in
practice, because, by our statutes, jurors are summoned
to try all causes which may be submitted to them during
the term, which is not the case in England nor in some of
the States. In such case the jury is sworn icell and truly
to inquire of damages between A. B. plaintiff., and C. U,
defendant, and a true verdict give according to their evi¬
dence: and the entry is, "who being elected, tried and
sworn, well and truly to inquire of damages between the
plaintiff and the defendant, on their oaths do say, they as¬
sess the plaintiff's damage, by reason of the premises, to
one hundred dollars. Therefore, it is considered that the
plaintiff recover of the defendant the damages by the jury
so assessed," &c.
In the action of ejectment, as in the action of debt,
the judgment by default is final, and no writ of inquiry is
awarded. Such judgment may be entered thus: "The
plaintiff by his attorney appears, andrichard Fen, the cas¬
ual ejector, and C. D. the tenant in possession, (or E. F.,
the landlord, as the case may be,) of the premises in the
declaration mentioned, having been solemnly called to
come into court, and plead to this suit, come not, but
make default. It is therefore considered by the court,
that the plaintiff recover of the said Richard Fen and C.
D., his term yet to come, of and in the lands and tene-
70
FORM BOORj
ments in the declaration mentioned, with the appurtenan¬
ces, and that he have thereof his writ of possession. It
is further considered by the court, that the plaintiff re*
cover of the said defendants, his damages sustained by
reason of the trespass and ejectment in the declaration
mentioned, and his costs by him about his suit in this be¬
half expended^ and that he have thereof his execution.
And the plaintiff now freely acquits the defendants of
the damages aforesaid. Therefore, let them be acquitted
thereof."
Non-suit.
A non-suit, for want of a declaration, replication, &c.
may be entered thus: "The defendant, by his attorney
comes, and the plaintiff having been solemnly called to
pome into court and prosecute his suit against the defend¬
ant, comes not but makes default. Therefore it is con¬
sidered by the court, that the defendant go hence with¬
out day, and recover his costs by him about his defence
h this behalf expended, and that he have his execution."
If, upon the trial, the plaintiff take a nonsuit, the entry
may be made thus—after entering the empannelling and
qualification of the jury, say, "The plaintiff says he will
no further prosecute his suit in this behalf against the de¬
fendant," and give judgment for the defendant as above.
■DUTIES OF CLERKS.
11
Motions.
Motions to set aside non-suits and judgments by default;
motions for new trial or in arrest of judgment, may-be en¬
tered thus; "The plaintiff, by his attorney comes and
moves the court to set aside the non-suit heretofore enter¬
ed in this case." "The defendant, by his attorney, comes
and moves the court to set aside the judgment by default
heretofore taken in this cause." "The defendant, by his
attorney, comes and moves the court to grant him a new
trial of the issues in this cause." "The defendant, by
his attorney moves the court in arrest of judgment upon
the finding of the jury aforesaid,* but because the courtis
not advised in the premises, day is given," &c.
When these motions come to be passed upon by the
court, the orders thereon may be entered thus: "The
parties by their attornies appear, and on consideration of
the motion heretofore made, to set aside the judgment by
default entered in this cause, it is ordered by the court,
that the same be set aside, upon the defendant paying the
costs of entering and of setting the same aside. There¬
fore, it is considered by the court, that the plaintiff recov¬
er of the defendant the costs aforesaid, and that he have
his execution." If the motion be overruled, say; "On
consideration, &c. it is ordered by the court that said mo¬
tion by overruled."
"And on consideration of the motion heretofore made
•This motion and the motion for a new trial should follow im¬
mediately after the verdict, and no judgment should be entered
until they are disposed of.
72
FORM BOOK.
td set aside the non-suit entered in this cause, it is or¬
dered by the court, that the same be set aside, upon the
plaintiff paying the costs of entering and of setting the
same aside. Therefore, it is considered by the court, that
the defendant recover of the plaintiff the costs aforesaid,
and that he have his execution." If the motion be over¬
ruled, say; "It is ordered by the court, that said motion
be overruled."
"And on consideration of the motion heretofore made
for a new trial, it is ordered by the court, that the same be
granted, and the cause is continued till the next term upon
the defendant paying the costs of this term. Therefore,
it is considered by the court, that the plaintiff recover of
the defendant his costs about his suit in this behalf, at this
this term expended, and that he have his execution." II
the motion be overruled, say; "It is ordered by the court,
that said motion be overruled," and go on to give judgment
upon the verdict.
"And on consideration of the motion heretofore made
by defendant, it is ordered that the giving of judgment upon
the finding of the jury aforesaid, be forever stayed and
arrested. And it is further considered by the court, that
the defendant go hence without day, and recover his costs
about his defence in this behalf expended, and that he have
his execution." If the motion be overruled, say; 4'It is
ordered by the court, that said motion be overruled," and
go on to enter judgment upon the verdict.
DUTIES Of CLERKS.
73
Continuances.
Causes are frequently continued on affidavit, or as on
affidavit of one of the parties, generally at the cost of the
applicant. The entry in such case may be made thus:
"The parties by their attornies appear, and on affidavit,
(or as on affidavit,) of the plaintiff, this cause is contin¬
ued till the next term, upon his paying the costs of this
term. Therefore, it is considered by the court, that the
defendant recover of the plaintiff, his costs by him about
his defence in this behalf at this term expended, and that
he have his execution.1'
Form, of summons in the action of debt.
State of Tennessee: To the sheriff of couhty, greeting.
You are hereby commanded to summon C. D. if to be found
in your county, personally to be and appear before the judge
of our circuit court for the county of——to be held at the
court house in the town of ——on the Monday in
next, then and there to answer A. B. of a plea that he render to
him one hundred dollars, which to him he owes and from him
unjustly detains, to his damage fifty dollars. Herein fail not,
and have you then there this writ. Witness E. F. clerk of our
said court, at office at the Monday in in the year
1836, and in the year of our independence. E. F.
If the action be assumpsit, case, or trover, say, "of
a plea of trespass on the case, to his damage one hundred
dollars;" if covenant, "of a plea ol covenant broken, to
his damage one hundred dollars;" if detinue, "of a plea
that he render to him a negro man slave named Dick,
7
74
FORM BOOK.
aged about twenty-five years, of the value of one thou¬
sand dollars, which from him he unjustly detains, to his
damage five hundred dollars;" if trespass, "of a plea of
trespass, with force and arms, to his damage one hundred
dollars;" if ejectment, "if a plea wherefore with force and
arms, he broke and entered the plaintiff's close, and
ejected him, to his damage one hundred dollars." If the
action of debt be brought against an administrator or ex¬
ecutor, say, "of a plea that he render to him one hundred
dollars, which from him he unjustly detains, to his damage
fifty dollars." If the process be a capias, instead of a
summons, say, "You are hereby commanded to take the
body of C. D. if he be found in you county, and Jiim
safely keep, so that you have him before," &c. as above.
If the capias issue in a criminal or penal prosecution, de¬
scribe the offence charged, thus: "then and there to an¬
swer the State of Tennessee on an indictment for mur¬
der, larceny, forgery, perjury, unlawful gaming," &c.
Subpoena for a witness.
State of Tennessee. To the sheriff of county greeting;
You are hereby commanded to summon E. F. if he be found
in your county, personally to appear before the judge of our
circuit court, to be held for the county of —— at the court house
in the town of ——■ on the Monday in next, then and
there to testify and the truth to speak on behalf of the in
a certain cause in our said court depending, between A. B.
plaintiff, and C. D. defendant, and this he shall in no wise omit,
under the penalty prescribed by law. Witness," See.
DUTIES OP CLERKS.
75
Dedimus potestatem.
The State of Tennessee, to Esq..greeting:
Know you, that trusting to your diligence and provident cir¬
cumspection, we do require you that at such certain time and
place as you shall appoint, you call and cause to come before
you, E. F., a witness on behalf of the plaintiff, in a certain
matter of controversy in our circuit court for the county of
depending,between A.. B. plaintiff, and C. D. defendant, and
him diligently examine touching the same, in solemn form, on
oath or affirmation j and such examination having received, you
shall distinct'y, plainly and without delay, certify under your
hand and seal enclosed, together with this writ, to our said court
to be holden at on the Monday in next. Witness
Fieri Facias
State of Tennessee, to the sheriff of county greeting:
You are hereby commanded, that of the goods and chattels,
lands and tenements of C. D.. in your county, you cause to be
made one hundred and fifty dollars, which A. B., lately in our
circuit court for the county of — - recovered against him
for "\lebt, damages and costs, in a certain action of debt in
the said court lately determined, wherein the said A.. B. was.
plaintiff and C. D. defendant, whereof said defendant is convict,
as appears of record; and have the said money ready to render
before the judge of our said court, at the court house in on
the Monday in next; herein fail not, and have yout
then there this writ. Witness &c.
76
FORM BOOK.
Certiorari.
State of Tennessee, to E. F. a justice of the peace for the
county of —— greeting:
Whereas it hath been represented to us, on the partof C. D. that
heretofore, to wit, on. the day of 18 — A. B. recover¬
ed a judgment before you against the said C. D. for the sum of
dollars and cents, which judgment was erroneously
and improperly given, as by the said C. JD. we are informed;
and wo being willing that justice should be done in the premi¬
ses, and the injury, if any hath been done to the said C. D.,
speedily redressed, do command you that you certify under your
hand and seal, to our circuit court, to be held for the county of
at the court house in the town of on the ■ Monday
in —— next, the original proceedings in the said cause, as fully
and entirely as they remain before you, to the^end that such pro¬
ceedings may be thereon had, as to right and justice may apper¬
tain Herein fail not. Witness &c.
Supersedeas.
State of Tennessee, to A. B., to E. F. a constable of
county, and to all other persons, greeting:
Whereas, it is represented to us on the part of C. D., that
you, the said A. B. did, on the- day of 18 —recover
against him, the said C. D. before G. A. Esq. a justice of the
peace for said county of a judgment for the sum of
dollars and cents, upon which you have caused execution
to be issued, and placed in the hands of the said E. F. consta¬
ble as aforesaid; and whereas said judgment was erroneously,
unjustly and wrongfully given, as by the said CL D. we are in¬
formed. We therefore command you, and each and every of
you, that from taking, imprisoning, or in any wise molesting the
saidC. D. by virtue of said judgment and execution, you and
each of you do forthwith and entirely desist. And if you have
already taken, or have in your custody, the body of the said C.
DUTIES OP CLERKS*
77
D. in virtue of said judgment, you shall forthwith cause him to-
be set at liberty; or if you have his goods, or any part of his es¬
tate, you shall forthwith restore the same to him at your peril.
"Witness &c.
Scire Facias to revive against an executor or administrator.
State of Tennessee, to the sheriff of county, greeting:
Whereas, in a certain action of debt in our circuit court for
the county of depending between A. B. plaintiff, and C.
D-defendant, it was, at the term of said court in the year
T8 — suggested to the court, that C. D. the defendant, had de¬
parted this life, and the same jvas not denied; and whereas it
hath been represented to us that E. F. hath taken out letters of
administration (or letters testamentary) upon the estate of the
said C. D. We therefore command you, that you make known
to the said E. F.,the tenor of this writ, and summon him to be
and appear before the judge of our said court, at &c. oil &c.
then and there to show cause, if any he has or knows of, why
the said suit shall not be revived against him as such adminis¬
trator (or executor,)- and stand in the same plight and condition
as at the death of the said C. D. and abatement thereof. Here¬
in fail not, and have you then and there this writ. Witness
&c.
Scire Facias to revive a judgment.
State of Tennessee, to &c. greeting:
Whereas, heretofore, to wit, on the day of —— 18 —
in our circuit court for the county of in a certain suit then
and there determined, between A. B. plaintiff and C. D. de¬
fendant, it was considered by said court, that the plaintiff re¬
cover of the defendant, the sum of one hundred dollars, his
debt in the declaration mentioned,, and the further sum of six
7*
78
Form book:.
dollars, his damages by the jury assessed, and his costs by him
about his suit in that behalf Expended, as appears to us of rec¬
ord. Nevertheless, execution of said judgment remains to be
done, as by the said A. B. we are informed. We therefore
command you, that you cause to be made known to the said C.
D. the tenor of this writ, and summon him to appear before
the judge of our said court, at &c. on &c. then and there to show
cause, if any he has or knows of, why said judgment shall not
be revived, and execution thereof be had by the said A. B. ac¬
cording to the tenor and effect thereof. Herein fail m>t. Wit
ness &c.
»Sctri' Farias vs. an administrhlor, suggesting a devastavit
Atate of Tennessee, to &c.
Whereas, heretofore, to wit, on the day of — 18 — in
our circuit court for the county of ——A. B. recovered against
'0. D. administrator of E. F. one hundred dollars for debt and
damages, and ten dollars for costs, to be levied of the goods and
chattels, rights and credits of his intestate, in his hands to*be ad¬
ministered, as appears to us of record. And whereas, after¬
wards, to wit, on the day of 18 — a writ of Jieri facias
was isnued on said judgment, tested the Monday in
13 — and placed in the hands of the sheriff of county,
whereby he wjis commanded that of the goods and chattels,
rights and ercdjts of E. F. in the hands of C. D1. to be admin¬
istered, he cause to be made the debt, damages and costs afore-'
said; upon which writ, the said sheriff made return .to the —
term of our said court, in the year 18 — in these words, to wit:
tLNo property found;" as also appears to us of record. .And
whereas, it hath also been represented to us, that the said C. D
hath Wasted and converted to his own use, the goods and chat¬
tels, rights and credits of the said E. F. which came to his
hands t<> be administered. We therefore command you, that you
make known to the said C. D. the tenor of this writ*and sum-'
mon hifn to he and appear before the judge of our said court, at
DUTIES OP CLERKS.
7&
&.C. on 8tc. then and there to show pause, if any he has or knows
of,, why the plaintiff shall not hare execution against hint, to be
levied of his own proper goods and chattels, lands and tene¬
ments, of the debt, damages'and costs aforesaid. Herein fail
not. Witness &c.*
Scire facias against the principal in a forfeited recognizance.
State of Tennessee, to ,&c. greeting:
Whereas, heretofore, to wit, on the day of
18 — in our circuit court for the county of — A. B, ac¬
knowledged himself to owe and be indebted to the State of
/Tennessee, in the penal stun of dollars, of his proper
goods and. chattels, lands and tenements to be levied, to the use
of the State; but to be void on condition that he, the said A. B.
should make his persdnal appearan'cc before saidveourt, on the
— day after' the 'Monday in next thereafter,
.then and there to answer .the State on an indictment for
and not depart without leave of the' court. And whereas, af-
tervvardft, to wit, at the —= term of said court, in the year
13 — the said A. B. having been solemnly called to ^ come into
court, and answer §aid charge, came not but made default; and
. it was thereupon considered by 'said court, that the said A. B
for the default aforesaid, should forfeit and-pay to the State of
Tennessee, the "sum of ■— dollars, according to the tenor
and effect of his said recognizance, unless good cause tp the
contrary be shown at the next term. We therefore command
you, that you tnake. known to the'said A.'B. the tenor of "this
writ, and summon hiin personally to'be and appear before the
judge of our said court, at &c. on &e. then and there to show
cause, If any he has or "knows of, why the State of Tennesse
shall not have execution against him, for the amount Qf the
recovery so had as aforesaid.. • Herein fail not. Witness &c„
80
FORM BOOK.
Against the hail in a forfeited recognizance.
State of Tennessee, to &c. greeting:
Whereas, heretofore, to wit, on the day of 18
— in our circuit court for the county of C. D. acknowl¬
edged himself to owe and be indebted to tlie State of Tennes¬
see, in the sum of live hundred dollars, of his proper goods and
chattels,- lands and tenements to be levied, but to be void 011
condition that A. B should well and truly make his personal ap¬
pearance before the said court, on the day after the
Monday in next thereafter, then and there to answer the
State on an indictment for -and not depart without leave
of the court. And whereas, afterwards, to wit, on the
day of 18 — at the term of said court, the said
A. B. having been solemnly called to come into court to answer
said charge, came not but made default; and the said C. D. hav¬
ing been also then and there solemnly called to come into court,
and bring with him the body of the said A. B. to answer said
charge, came Hot but made default, and it was thereupon con¬
sidered by the eourt, that the said C. D. for the default aforesaid,
should forfeit and pay to the State of Tennessee, the sum of five
hundred dollars according to the tenor and effect of his said re¬
cognizance, unless he show, good cause to the contrary at the
next term. We therefore, &c. Witness &c.
To revive against the husband of a female defendant, who
marries pending a suit.
Whereas, -in a certain action of debt, now pending and unde¬
termined in our circuit court for the county of — between
A. B. plaintiff, and C. D. defendant, the marriage of Q. D. the
defendant to E". F. was at the term 18 — of said
court, suggested, and the same was not denied. We therefore
command you,-that you make known to the said E. F. that he
be and appear &c. at&c. on &c. then and there to show cause,
if any he has,, or knows of, why the said suit shall not be
DUTIES OP CLERKS.
81
revived against him and his said wife, and stand in the sam<r
plight and condition as at the time of their said marriage, and
abatement thereof. Herein fail not. Witness &c.
Habeas corpus, cum causa.
State of Tennessee, to the sheriff and jailor of county,
greeting:
Whereas, it hath been represented to us, for the county of
that you have in your custody the body of A. B_,
nshe says, wrongfully; and we being willing that justice should
be done in the premises, do command you, that you have the
body of the said A. B. before us, in our circuit court to lie held
for the county of at &c. on &e. together with the day
and the cause of his caption and detention, to the end that such
proceedings may be then and there had, as to our said court may
seem fit, and according to law concerning him in this behalf.
Witness &.c.
Mandamus to a County Court, i equiring them to qualify a
Sheriff.
State of Tennessee, to the justices of the County Court of
county.
Whereas, A. B. hath been duly and legally elected sheriff of
county, for the two years commencing on and
ending on and hath.offered to execute the bond and tako
the oath required by law, before you, for his qualification as
such; you nevertheless, lightly regarding the premises, and with¬
out any reasonable cause, have failed and refused to permit the
said A. B. to take the legal and necessary qualifications, or to
exercise and enjoy the benefits and emoluments of the saidoT
fice, as by him we are informed, to his great damage and griev-
82
FORM BOOK.
ance. We therefore, being willing that speedy justice be done
in the premises, do command you, that immediately after the re¬
ceipt of this writ, you cause the said A. B. to be duly qualified
for the discharge of the duties of the said office of sheriff, or
signify to us good cause to the contrary. And how you shall
have executed this command, certify to us in our circuit court,
to be held for the county of at See. on See. and have you
then there this,writ. Witness Sec.
Writ of error, coram vobis.
State of Tennessee, to the Judge of the Circuit Court of ■
county, greeting:
Because in the record and proseedings, and also in the rendi¬
tion of the judgment of a plea of debt, (or as the case maybe)
which was in our circuit court for the county of ■ between
A. B. plaintiff, and C. D. defendant, a manifest error has hap¬
pened, to the great damage of the said C, D. as by his com¬
plaint we understand. We, willing the error, if any hath been,
should be duly corrected, and full and speedy justice done to
the parties aforesaid in this behalf, command you, that if judg¬
ment thereon be given, then the record and process aforesaid,
which before you now remain, as it is said, being inspected,
you further cause to be done thereon, to correct that error,
what of right and according to law and custom ought to be done.
Witness &c.
The manner of proceeding upon a writ of eiror coram
vobis, owing to us infrequency in practice, is but little
known, even amongst the members of the bar, and it is
thought a short explanation will be useful to them, as well
as to clerks. The writ is obtained upon petition of the
party aggrieved, and the petition must contain or be ac-.
"DUTIES OF CLER&S.
83
companied by an assignment of errors. If the defendant
in error wishes not to controvert the facts set forth in the
petition, but still insists that there is no error in the pro¬
ceeding, he should reply generally, *lnullo est erratum,"
that there is no error, and the cause will be tried, and the
judgment rendered, exactly as in a court of appellate ju¬
risdiction, to which a cause has been removed by writ of
error.
If the party wishes to contest the facts set forth in the
petition, he should, in his replication deny them, or set
up different facts, showing the correctness of the judg¬
ment, to which the plaintiff in error may rejoin or take
issue, and the issue so formed, will be submitted to a jury,
and the judgment will be affirmed or reversed according
to their finding. The matters set forth in the petition
and assignment of errors, are to be considered just as
pleas put in to a declaration, and as in the one case, the
plaintiff may demur to some and reply or take issue to
others; so in the other, he may reply chat there is no error,
as to some of the errors assigned, and take issue, or plead
affirmatively as to others.
The following entries may be made in the several ca¬
ses supposed. Where issue is taken upon a state of facts,
say, "The parties by their attornies, &c. and a jury, &c.
who &c. on their oaths do say," &c. (if they find for the
defendant in error, go on to say,) "And for that it now
appears to the court, that neither in the record and pro¬
ceedings aforesaid, nor in rendering the judgment afore¬
said, there was error, it is therefore considered by the
court, that the judgment aforesaid be affirmed, &c. and
the supersedeas discharged, and that the defendant in error
84
rORM BOOR
recover against the plaintiff in error, and his said sure¬
ties," &c.
If the finding be for the plaintiff in error, say: "For
that it appears to the court, that in the record and proceed¬
ings aforesaid, and also in rendering the judgment afore¬
said, there is manifest error. It is therefore considered
by the court, that the judgment aforesaid, for the errors
aforesaid, and others therein appearing, be reversed, an¬
nulled, and for nothing held, and that the plaintiff in er¬
ror go hence and recover his costs," &c. If there be
issues in fact, and also the issue in law, of error or no er¬
ror, after entering the finding of the jury, say: "But be¬
cause an issue of law remains to be tried, let no judgment
be given, until the same shall be disposed of," and the
judgment will be given according to the decision of the
legal question.
If a plaintiff in the original proceeding be also plaintiff
in error, and the judgment be reversed, after entering the
reversal, you should go on to give such judgment as ought
to have been given in the original proceeding.
The writ of error coram vobis1 is the proper, and fre¬
quently the only means of redress, except by bill in equity,
in the numerous cases provided Jbr by our statutes in
which judgments are given on motion, in case such judg¬
ments be improperly rendered.
FORMS.
PART II.,
for the use of
JUSTICES OF THE PEACE.
CHAPTER I.
Form of warrant for murder.
State^of Tennessee, ) To any lawful officer of said
Davidson County. ) county.
This day came A B before me, John Coke, a justice
of the peace for said county, and made oath that he hath
good reason to believe, and doth believe, that one C D,
on the 5th day of April 1837, in the county aforesaid,
with force and arms, in and upon one E F, who then and
there being under the peace of the State, feloniously, wil¬
fully and with malice aforethought, an assault did make
upon the body of the said E F, with a certain knife or
dirk, and the said C D did then and there strike, stab and
penetrate the body of the said E F, giving bim one mor¬
tal wound, of which he the said E F then and there in¬
stantly died. (If the deceased lived for some time after
he received the wound, then say;) The said E F did
8
86
FORM fcOOK
languish and live, in the county aforesaid, from the said
5th day of April 1837, to the 10th day of April 1837,
on which last day, the said E F of said mortal wound did
die- Thes^ are.therefore tovcommand you, in the name
of the State, to take the body of the said C D, and bring
him before me or some other justice of the peace for said
county, to answer the premises, and further to be dealt
with as the law directs. Given under my hand and seal,
the 15th day of April 1837.
JOHN COKE, J. P. [Seal]
In the case of Tacket vs. The State. 3 Yer. R. 392, (1832,)
the supreme court decided that, "if a warrant commanding the
arrest of an individual in the name of the State, has no seal, it
is void.5'
And in the case of the State vs. Manley, 1 Ten. R. 429,
(1S( 0,) the court decided that J. P. sufficiently designate the
official capacity of a justice of the peace.
A magistrate in one county may issue a warrant to arrest a
p so i charged with committing a felony in another county, and
he uity he committed by him for trial. Johnson vs. The State,
2 Yu. R- 58, (1831.)
Tin foregoing general form may be varied so as to suit every
ease vs here a warrant issues in the name of the State, against
an>' individual, either for a felony or misdemeanor. It is not
necessary to allege in the warrant, that the murder was of the
first or second degree; for it is provided by the 72d section of
the penal code of 1829, that it is sufficient to describe or charge
the offence, either according to the common law, or according to
the st itute. See also Mitchell vs. The State, 5 Yer. R. 340,
(1333,) where the court decide that an indictment in the com¬
mon law form for murder is good, and will support a conviction
for murder in the first degree.
JUSTICES OP THE PEACE
87
Form of warrant for arson, or house-burning.
If the warrant be for arson, proceed as in the foregoing
precedent, and then say: "One C D, with force and arms
on the 5th day of April 1837, in the county aforesaid, did
^wilfully and maliciously bum the house" (or the out¬
house as the case may be,) of the said A B," and then
conclude as in the foregoing precedent.
The above words in italics and which are quoted, are in the
very language of the statute, and it is always better in describing
the offence committed, to charge it in the language of our penal
code, which defines with great precision and perspicuity,
every felony known to our laws.
Form of warrant for rape.
The same as under title "murder," then say: "One C
D with force and arms on the 5th day of April 1837,
in the county aforesaid, an assault did make upon the body
of the said A B, and then and there had unlawful and
carnal knowledge of her, the said A B. forcibly and
against her will. These are therefore to command you,"
&c.
If the warrant be for unlawfully abusing a female under
the age offeten years, then say: "An assault did make
upon the body of one E F. a female child under ten years
of age, and did then and there unlawfully and carnally know
and abuse the said E F. These are therefore to command
you," &c.
83
FORM ROOK.
Form of warrant for Bigamy.
The same as precedent under title, "murder,"' only
say: '•'One O D, with force and arms, on &c. in &c. did:
commit the crime of bigamy, by marrying one E Ef, .his
lawful wife, then- and' there being alive. These are there¬
fore to command you," &c.
Form of warrant for sodomy and buggery.
One C D, with force and arms, en &c. in &c. did carnally
know a male dhld under the age of ten years, or did then
and there carnally know a certain mare belonging to one
G H, &'c. These-are therefore, &c.
Form of warrant for Incest.
One C D. with forte and arms, on &c. in &c. did have
carnal knowledge of his mother, (his father's sister, his
'mother's sister, his 'sister, the daughter of his son or daugh¬
ter,' his father's wife, his wife's daughter, the daughter of
his wife's1 son or daughter, as'-.the case may be.) These
are therefore, &c.
Form of warrant for Burglary.
One C D, with force and arms, did in the night time
of the day of the 5th day of April 1837., in the county
aforesaid, feloniously break and enter the mansion house
JUSTICES OF THE PEACE
89
the said A B, with intent to commit a felony. &c.
For burglary in the day time, say: "The said C D,
with force and arms, on &c. in &c. did feloniously break
and enter the mansion house of the said A B, in the day
time, with intent to commit a felony, tQ wit, with an in¬
tent to steal one bed and furniture, in said house, the prop¬
erty of the said A B. These are therefore," &c.
Form of warrant for Robbery.
One C D, with force and arms, on &c. in &c. felo¬
niously and forcibly, and by violence, did take from the
person of the said A B, one hundred dollars, he the said
CD., then and there putting the said A B in great fear,
&£. ThUse are therefore, &c.
Form of warrant for Negro Stealing.
One C D, with force and arms, on &c. in &c. did steal,
take and carry away a certain free person, of color, by the
name of Jack Danley. Or say, did sell a certain free
person of color by the name of Jack Danley, for a slave,
then and there well knowing said Jack to be free, &c.
These are therefore to command, &c.
Form of warrant for Larceny.
One C 1), with force and arms, on &c. in &c. did fe¬
loniously steal, take and carry away*a certain black geld
S*
00
r©Rjvf book.
ing, the property of the said A B. and of the value of t\Vtf
hundred dollars. Or say, did feloniously steal, take and
carry away, one dress coat, the property of the said A B
and of the value of thirty dollars, (as the case may be.)
To constitute felony, there must be a trespass in the original
taking, which cannot be the case where the property has been
previously delivered. State vs. Braden, 2 Ten. R. 68, (1805.)
Same point, Porter vs. The State, Mar. & Yer. R. 5526, (1828.}
Belter vs. The State, 9, Yer. R. (1836.)
Form of warrant for receiving stolen horses or stolen goods.
One C D, with force and arms, on &c. in &c. did
fraudulently receive into his possession, (or buy, as the
case may be,) one mule of the value of fifty dollars, the
property of the said A B, which said mule had before that
time been feloniously taken or stolen from the said A B,
and the said C D knowing said mule to be stolen, then and
there received her into his possession, with intent to de¬
prive the true owner thereof, &c. These are therefore, &c.
The form of the warrant for the offence of receiving
stolen goods, is the same as the above, only substitute the
name of the articles or goods received and charged to be'
stolen, instead of horse, mare, mule, &c.
Form of warrant for stealing of Bills, JVofes,
One C D, with force and arms, on &c. in &c. did then
and there feloniously §teal, take and carry away, from the
JUSTICES Of THE PEACE
0?
possession of the said A B, a certain promissory note,
drawn by David Gunter, on the 26th day of December
1835, and made payable to the said A B, for the sum of
five hundred dollars, and due on the 1st day of January
1S37. These are therefore, &c.
Form of warrant for counterfeiting and passing bank bills*
One C D, with force and arms, on &c. in &c. did
fraudulently forge, (or begin to forge, or was concerned in for¬
ging, or beginning to forge, as the case may be,) the coun¬
terfeit resemblance or imitation of a bank bill, purporting
to be for the sum of one hundred dollars, on the Union
Bank of the State of Tennessee, No. 300, dated the 6th
day of August 1836, and purporting to be signed by John
M, Bass, President, and John Sommerville Cashier.
These are therefore, &c.
If the warrant be for passing a counterfeit bank bill,
say: "Did fraudulently pass and pay unto the said A B,
the counterfeit resemblance of a one hundred dollar bank
bill," (here describe the bill as in the last form, and then
say,) "he, the said C D, well knowing the same to be
false and counterfeit."
If the warrant be for fraudulently keeping and conceal¬
ing a counterfeit bank note, say: "Did fraudulently keep
and conceal a Certain counterfeit resemblance or imitation
of a bank bill," (here describe the bill,) or if the warrant
be for keeping more counterfeit bills than one, say; "Did
fraudulently keep and conceal a large amount, to wit, five
hundred dollars of the counterfeit resemblance of bank
tfOfcSf B00l£.
bills, purporting to be on different banks, (here discribe
the bills, and then add,) he, the said C D, well knowing
them to be false and counterfeit, but kept and concealed
them with the intent to impose them on the community,
as good money.
fn the case of Fergus vs. The State, 6 Yer. It, 845, (18S4,)
the supreme court decided, that an indictment for fraudulently
keeping and concealing the counterfeit resemblance of bank
notes, must charge that the defendant kept and concealed them
With the intent to impose them on the community as good mo¬
ney.
If the warrant be for erasing or altering a genuine bill,
then say: "One C D, with force and arms, on &c. in &c.
did alter and erase a genuine bank bill, for the sum of five
dollars, (here describe the bill, then add,) so as to make
said bill read for the sum of fifty dollars, instead of five
dollars."
If the warrant be for making or concealing a plate t(
stamp counterfeit coin, then say: "One C D, on &c. in
&c. did fraudulently make or prepare, (or did assist or
was concerned in making and preparing, or did fraudulent¬
ly keep in his possession, or did keep and conceal or as¬
sist in fraudulently concealing, as the case may be,) a
plate whereby to stamp and make the counterfeit resem¬
blance or imitation of a genuine bank ndte for twenty dol¬
lars, on the Planters Bank of the State of Tennessee,1*'
3 » '
&c.
If the warrant be for making or keeping and concealing
paper of the description used for bank bills, notes, &c. say:
"One C D, on #c»in &c. did fraudulently make or pre-
JU3TIGE9 9T THE PEACE
pare, (or did fraudulently keep in his possession and con¬
ceal, as the case may be,) paper of that description which
is used for bank bills, or notes, or other paper currency
'These are therefore," &c.
Form of warrant for counter]eiting coins.
One C D, with force and arms, or) &c. in &c. did
fraudulently pass, (or offer to pass, or did fraudulently
keep in his possession or conceal, or assist, or was con¬
cerned in poncealing, or did fraudulently make or prepare,
or did assist, or was concerned in making or preparihg,
as the case may.be,) five pieces of base or adulterated
coin in imitation of five Mexican dollars, each dated A. I).
1831r" If for making counterfeit coin, say: "One U
D, did then and there fraudulently make and prepare five
pieces of base or adulterated metal, and did convert them
into the counterfeit resemblance of five Mexican dollars,
a coin current in this State, and each bearing date A. I).
1831."
The supreme court decided in the case of the State vs. Young
and another, 1 Ten. R. 230, (1807,) that a person present, aid¬
ing and assisting another to pass counterfeit money, is guilty
as a principal,
Form of warrant for Forgery.
"One C D, with force and arms, on, &c. in, &c. did
forge and make an instrument of writing? purporting to bo
94
FORM BOOK.
a note or bill single, drawn by the said A B, for the- sum
of five hundred dollars, payable to the said C D, or or¬
der, on the 25th day of December, 1836, and with the
intent to prejudice the right of the said A B. These are
therefore to command &c.
If the warrant be for passing a forged note, say, "One
C Dn with force and arms, on, &c. in, &c. did fraudulently
pass by delivery, (or assignment, as the case may be,) to the
said A B, a certain forged instrument of writing, purpor¬
ting to be a promisory note, (here describe the note, then
add,) with the intent to prejudice the right of the said A
B." These are therefore &e.
Form of warrant for Perjury, and Subornation of Perjury.
"One C D, on, &c. in, &c. in a certain suit which
was tried and determined by Henry Yancy, an acting jus¬
tice of the peace, for said county, wherein A B, was plain¬
tiff and G H, defendant, he, the said C D being then and
there introduced as a witness on the part of the plaintiff,
and duly sworn as a witness in said cause by the said
Henry Yaney, Esq. and after being sworn, did, in a mat¬
ter material to the issue or point in question, swear wilful¬
ly, absolutely, and falsely, in this, that he the said C D,
swore that he heard the said A B, plaintiff, admit to the
said G H, defendant, in' the market house in the city of
Nashville, on the first day of January 1837, in the pres¬
ence of divers persons, that the said G H, did not owe
him, the said A B, one cent, and that he and the said
G H, had adjusted and finally settled all their accounts
JUSTICES Of* THE PEACE
&nd dealings of every description; he the saidC D, well
knowing the same to be false, thereby committing wilful
and corrupt perjury. These are therefore &c.
The above form can be varied without any difficulty, so as to
suit a wafrant for subornation of perjury. After proceeding as
above, then say,
"One C D, did then and there unlawfully and corrupt¬
ly suborn or procure the said E F, to swear wilfully, ab¬
solutely and falsely, in a matter material to the issue, or
point in question, in thisy (here state the facts which were
sworn to by the said E F.)
Form of warrant for Bribery.
The said C D, with force and arms, on, &c in, &c.,
being a justice of the peace for said county, and acting as
such, a certain James Albright having been arrested by
virtue of • a warrant in the name of the State against the
said Albright, on a charge of Larceny, and brought before
the said C D, Esqr., for trial, and pending the said trial,
xme E F, did then and there offer to pay the said C D,
Esq., fifty dollars, as an undue reward and bribe to influ¬
ence his behaviour on said trial, in favor of the said de¬
fendant, and the said C D, Esq., did then and there un¬
lawfully and corruptly, and as an undue reward, by way of
bribe, receive the same.—-
96
FORM BOOK
Form of warrant for Embracery.
The form of a warrant for the crime of embracery,
should be the same as that for bribery.'—(See Bribery.)
Form of warrant for Destroying Corner Trees.
The said C D, with force and arms, on, &c. in, &c.
did unlawfully, knowingly, wilfully, and corruptly destroy
the corner tree, being south-east corner tree of a tract of
land, of which the said A B, was lawfully seized and
possessed. These, are therefore to command you &c.
Form of warrant for destroying a Will.
The said C D, with force and arms, on, &c. in, &Ci
did corruptly destroy, (or conceal^ as the case may be) the
last will and testament of G H, deceased, with intent to
prevent probate thereof: (or with intent to defraud Job
Leg and James Leg, legatees of the said G H. dec'd.
undersaid will, as the case may be:) These are therefore
&c. &c.
Forn1 of warrant for Stealing Public Records.
The said C D, with force and arms, on, &c. in, &c
did corruptly steal, (take away, or withdraw, as the case
may be) out of the office of the clerk of the circuit court
for the county of Davidson, a summons and prosecution
JUSTICES OF THE EEACE
97
bond, in a suit now pending in said court, wherein the said
A B, is plaintiff, and G H, is defendant, with intent to
injure the said A B, &c. These are therefore to com¬
mand you &c.
The form of a warrant for Stealing Books and papers
belonging to any of the public offices of this State, where¬
by any person shall be injured, should be the same in sub¬
stance as the last precedent.
"Form, of warrant for Assault with an intent to kill.
The said C D, on, &c. in, &c. feloniously, wilfully,
and with malice aforethought, an assault did then and
there make upon the body of the said A B, with a certain
knife which he, the said C D, then and there held in his
right hand, and did then and there strike, stab and pene¬
trate the body of the said A B, with intent him, the said
A B, to kill and murder. These are therefore &c.
If the warrant be for an assault and battery upon a fe¬
male, with intent to have unlawful carnal knowledge of her,
then say, "The said C D, did then and there commit an
assault and battery upon the body of the said A B, with an
intent forcibly and against her will to have unlawful carnal
knowledge of her." These are therefore to command
you &c.
Or if the warrant be for an assault with intent to commit
robbery, then say, The said C, D, an assault did then and
there make upon the body of the said A B, with an intent
feloniously and wilfully to commit robbery." These are
therefore &c.
9
98
FORM BOOK
Form of warrant for JWayhem.
The said C D, with force and arms, on, &c. in, &c. did
unlawfully and maliciously put out the right eye, (bite off
the nose, ear or lip; or cut off or disable the right hand, or
did cut off or disable the organs of generation as the case
maybe,) of him, the said A B.—These are therefore &c.
Form of warrant for Duelling.
One C D, with force and arms, on, &c. in, &c. did fight
a duel with a certain E F, in single combat with swords
(pistols or other deadly weapons as the case may be,) which
the said C D, and E F, then and there had &c. These
are therefore to command &c.
If the warrant be for challenging another to fight a duel,
then say, "One C D, on, &c. in, &c. did then and there
deliberately and maliciously invite one E F, verbally, to
meet him the said C D, at Sparta, in this State, on the
first day of May, 1837, with a view or intent to challenge
or fight him, the said E F. These pre &c.
If the warrant be for carrying and delivering a chal¬
lenge, then say, "One C D, on &c. in, &c. did wilfully,
knowingly, deliberately and maliciously carry and deliver
a written challenge from A B, to E F, which written
challenge called on the said E F, to meet him, the said
A B, with a pistol, sword or other deadly weapon, at such
time and place in said State, as he the said E F, should
think proper to designate." These are therefore" &c.
JUSTICES OP THE PEACE
99
Form of warrant for Publishing for Cowardice. +
One C D, with force and arms, on, &c, in, &c. did
in the Nashville Republican, a newspaper printed in the
city of Nashville, and State aforesaid, publish the said A
B, as a coward, because he, the said A B, had refused
to fight a duel, with one E F, in the Slate aforesaid.
These are therefore &c.
Form of warrant for forcible release of a felon.
One C D, with force and arms, on &c. in &c. didr by
force and menaces of bodily harm, rescue from the cus¬
tody of P. Campbell, sheriff of said county, one E F,
who was then and there in the custody of the said Camp¬
bell, on a charge of burglary, he, the said C D, well
knowing that the said E F had been lawfully arrested on
the charge aforesaid. These are therefore to command
you, &c.
Form of warrant for the escape of a felon.
One P. Campbell, sheriff of Davidson, with force
and arms, on &c, in &c. did voluntarily, corruptly and
of purpose, let one E F, whom he had in custody, on a
lawful arrest, on a charge of murder, escape out of his
custody, &c. These are therefore.
100
form book.
Form of warrant for faro and thimble dealers.
One C D, with force and arms, on &c. in &c. did deal at
the game commonly called/an*, (or did exhibit the game
commonly called thimble, or the grandmother's trick, as
the case may be,) for money and property of value, bet
by A B and divers other persons on said game, so dealt by
the said C D as aforesaid. These are therefore, &c.
Form of icarrant for conspiracy.
One C D, one E F, and G H, with force and arms,
oei &c. in &c. did falsely and maliciously conspire together
to indict the said A B, for the crime of horse stealing, and
did then and there, in pursuance of such conspiracy, false¬
ly and maliciously indict and prosecute the said A B,
well knowing the said A B to be innocent of said charge.
These are therefore, &c.
It will very readily appear to the reader, that the beginning
and conclusion of the warrant, for any of the offences here
enumerated, will be the same in every instance, as the prece¬
dent given for the crime of murder j and it would therefore be
surplusage, to have repeated such beginning and conclusion in
all the forms here given. For instance, if the warrant be for
conspiracy, it should begin and conclude thus;
fc^tate of Tennessee, i To any lawful officer of said
County. ) county.
This day came A B before me, John Coke, a justice
of the peace for said county, and made oath that he has
good reason to believe and doth believe, that one C
JUSTICES OF THE PEACE
101
me F F and G H, with force and arms, on the 5th day
of April 1837, in the county aforesaid, (here proceed as
under title "conspiracy," and conclude thus:) These
are therefore to command you in the name of the State, to
take the bodies of the said C D, E F and G H, and
bring them before me or some other justice of the peace
for said county, to answer the premises, and further to be
dealt with as the law directs. Given tinder my hand and
seal, the 15th day of April J 837.
JOHN COKE, J. P. [Seal.]
It is not deemed necessary or advisable by the authors of this
Work, to give precedents for every misdemeanor, as it is believed
that a few forms, for misdemeanors of the most common occur*
fence, will enable the reader to vary them so as to suit any
case which may arise.
Form of warrant for art assault and battery.
One C D, with force and arms, on &c. in &c. did vio*
lently assault, beat,, wound and ill treat, the said A B.
These are therefore, &c*
Form of warrant for an affray.
One C D and E F, with force and arms, on &c. in &c.
did fight together in a public place, and to the terror of the
people. These are therefore, &c.
To constitute an affray, there must be first, a fighting; second,
the fighting must be between two or more persons; and third*
9*
FORM BOOK.
it must be in some public place. State vs» Simpson, 6 Yeiv K -
356. And it may be an affray, though it be not proved that the
parties fought by consent. Cash vs. The' State, 2 Ten. R. 198.
Form of ivarrant for Riot.
One C D, E F, G H, and I J, on &c. in &c. did
riotously assemble together, and .with an understanding of
mutual aid and assistance, did then and there wilfully and
maliciously cut off the tail and ears of a certain bay geld¬
ing, the property of the said A B. These are therefore,
&c.
Form of warrant for unlawful assembly.
One C D, E F, G H, and I J, on &c. in &c. did un¬
lawfully assemble together, with an understanding of mu¬
tual aid and assistance, to cut off the tail and ears of a cer¬
tain bay gelding, the property of the said A B, but sepa¬
rated and dispersed, without doing said unlawful act
These are therefore, &c.
Form of warrant for Extortion.
One C, with force and arms, on&c. in &c. did unlaw¬
fully and by color of his office of constable, take from the
said A B, two dollars more than was due him, by way of
fees, on a certain execution then and there in his hands,-
JUSTICES OF THE PEACE 10$
wherein E F was plaintiff, and G H defendant. These
are therefore, &c.
Form of warrant for common nuisance.
One C I), with force and arms, on &c. in &c. did cre¬
ate a common nuisance by throwing a large quantity of
wood, and unsound and putrid meat in one of the public
streets in the city of Nashville, to the great annoyance of
the people. These are therefore, &c.
Form of warrant for open and notorious lewdness.
One C I) and one E F, on &c. in &c. did live in open
adultery together, and cohabit as man and wife, regardless
of good morals and decency. These are therefore, &c.
It need not be proved that the act or acts constituting this of¬
fence, were committed in the public streets, or under the imme¬
diate observation of divers spectators. It is enough that the
parties being unmarried, lived together as man and wife, and
that fact generally known throughout the neighborhood.—■
Grisham and Jane Ligan vs. The State, 2 Yerg. R. 589,
(1831.)
Form of warrant for malicious mischief.
One C D, with force and arms, on&c. in &c. did wil¬
fully and maliciously kill a certain red cow, the property of
the said A B. These are therefore, &c.
104
form book.
To constitute the offence of malicious mischief under thtf
act of 1803, ch. 9, malice against the owner, and not against
the animal is required. State vs. Wilcox., S Yer. Ri 278<
(1832.)
Form of warrant for beating slaves.
One C D, with force and arms, on &c. in &c. did,-
without sufficient cause, beat and abuse Jim* a slave and
the property of the said A B. These are therefore, &c.-
Form of warrant against a single woman for having a
bastard child.
State of Tennessee, ? To any lawful officer of said
County. ) county.
Information having been given to me, John Coke, a jus-
tic^ of the peace for said county, that a certain Polly
Blunkumback, of the county aforesaid, was delivered of
a bastard child, more than thirty days ago. These are
therefore to command you to take the body of the said1
Polly,- and bring her before me or some other justice of
the peace for said county, to answer the premises, and
further to be dealt with as the law directs. Given under
my hand and seal, the 15th day of April 1837.
JOHN COKE, J. P. [Seal.]
When she is brbught before the justice, if she refuse to de--
blare the father on oath, the justice should require her to pay
a fine of twelve dollars and fifty cents, and to give security to'
keep her child from being chargeable to the county, ®r commit1
justices of the peace*
105
her to prison until she does declare the father, or pay the fine
and give the security aforesaid. If she should prefer to pay the
fine and to give the security required by lalv, the justice should
then take her bond in/the following form*
Bond given by the mother of a bastard child, to keep such,
child from being chargeable to the county.
State of Tennessee, )
Davidson County )
We, Polly Blunkumback and C D, jointly and severe
ally bind and acknowledge ourselves to be indebted to
A B, chairman of the county court for said county,
and his successors in office, in the penal sum of
five hundred dollars, to the use of the county aforesaid;
but nevertheless to he void on condition that -the said
Polly shall maintain or cause to be maintained, a bastard
child of which she was delivered some time in the month of
February 1837, so that said child shall never become
chargeable to the said county of Davidson for its main¬
tenance. Given under our hands and seals, the 15th day
of April 1837,
Signed, sealed and acknowledged before me.
JOHN COKE, J. P. [Seal.]
POLLY BLUNKUMBACK, [Seal.]
C. D. [Seal.]
Examination of the mother on oath.
State of Tennessee, )
County )
I, John Coke, an acting justice of the peace for said
county, this day proceeded to examine Polly Blunkum¬
back on oath, concerning the father of a bastard child of
106
form book.
which she had been delivered, when it appeared that more
than thirty days ago, she was delivered of sai4 bastard
child, that said child is likely to become chargeable to the
county, and that a certain C D did beget said child, (liv¬
en under my hand and seal, the 15th day of April 1837.
JOHN COKE, J. P. [Seal.]
Form of warrant against the reputed father.
State of Tennessee, £ To any lawful officer of said
County. $ county.
Whereas, Polly Blunkumback, a single woman, has on
oath before me John Coke, a justice of the peace for said
county, charged a certain C X), of said county, of having
begotten a bastard child on her body, that she was deliv¬
ered of said child more than thirty days ago, and that said
child is likely to become chargeable to said county. These
are therefore', &c*
The form of the recognizance, binding the reputed father to
appear at court, will be the same as the precedents under title,
"recognizance."
The supreme court decided in the case of the Slate vs. Ing-
ram, 4 Hay. 221, (1817,) that the adjudged father of a bastard
child, is bound to maintain it, although the mother marry a third
person before the child is born. And in the case of Lawson
and wife vs. Scott, 1 Yer. R. 92, (1825,) the court decided that
the reputed father of a bastard child, who had legitimated it,
was. not in consequence thereof entitled to its custody; and that
the county court had no power to put such child in his custody
or to bind it out contrary to the W ishes of the mother, unless
the child be a pauper.
justices of the peace.
107
Form of affidavit for a peace warrant
State .of Tennessee, )
County. )
This day came A B before me, John Coke, a justice
of the peace for said county, and made oath that he has
just cause to fear and doth actually fear, that C D, will
burn his1 lieuse, or do him some corporal injury, or that he
will procure ^thers so to do, and therefore he demands
sureties of the peace of the said C D. sworn to and
subscribed,llbeU5th April 1837. A B.
JOBN QQK*E,*.J. P. [Seal.]
%
Porw'df peace warrant.
State of Tennessee, ) To any lawful offier of said
* "Cpunty. ' $ county.
This d^pame A B. before rte, John Coke, an acting
justice of thNe peace for said county, and made oath that
he has ^oodrcause te fear, and doth actually fear, that C
D wil| j^urr^iis house, or do him some corporal injury, or
that he ^ill procure others so to do, &c. These are
therefore to corhmand you to take the body of the said C
D,TOd bulpg him before me or some other justice of the
jaeace for said county, to answer the premises and to be
$ealt with as tke law directs. Given under my hand and
seab.the 15th day of April 1837.
JOHN COKE, J. P. [Seal.]
103
form book.
Form of recognizance to keep the peace and to appear at
court.
State of Tennessee, )
County, )
We, C D, E F, and G H, jointly and severally ac¬
knowledge ourselves indebted to the State of Tennessee,
that is to say, the said C D, in the sum of* ojfcf jfiousand
dollars, and the said E C, and G H in the/sum o§ five
hundred dollars each, to be levied of our respective goods
and chattels, lands and tenements, but tol£e woid on condi¬
tion that the said C D shall maketef appearance on the
first Wednesday of the term of our next "circuit court, to
be held for said county, on the^ecrimflpwfcsday in May
next, to answer the State upon a^Jsac^ warrant, procured
at the instance of A B, and in the mean tilne to keep the
peace toward all the good citizens of safe! State, and more
particularly towards th^ said cl D, #atlcf^notjj^part said
court without leave first had and obtained. Jflfiven under
our hands and seals, the 15th day of April 1837.
Signed, sealed and acknowledged 1 T) Dr, flSeal.]
before me. > 'E>F, tcWI.]
JOHN COKE, J. P. [Seal.] Q H. fcftgal.]
Form of search warrant.
State op Tennessee, ) To any lawful officer ty'SQith
County, ) county.
This day came A B before me John Coke, a justice of
the peace for said county, and made oath that a saddle and
JUSTICES OP THE PEACE
100
Ibridle, several counterpanes and blankets of his, was on
the 5th day of April 1837, in the county aforesaid, felo¬
niously stolen, taken and carried away out of his posses¬
sion, and that he has cause to suspect and does suspect,
that said pr^^qfty iV concealed in the dwelling house,
'kitchen, b\n Apr in swne of the out houses of the said C
in the couHwAres^id. These are therefore to com¬
mand you to ennKhe saitkliquses and premises of the said
C D and make diligpnt sw&ch for said property, Given
under my hand artd'£^~»tnel 5th April 1836.
xJOHN COKE, J. P. [Seal]
V
The 7th seqp^ft, article 1, of our Declaration of Right*,
(amended Constitution) provides, "That the people shall
be secure in their persons, houses, papers and possessions,
from unreasonable searches and seizures; and that general
warrants, whereby an ofl^£ may be commanded to search
suspected places, without »|n| of the fact committed, or to
seize any pertspn or ^reongrotfcgm'ed, whose offences are not
particulajji^describecrand suppored by evidence," are dange¬
rous to litS^r ahc^-^ight not to be granted.
The act of 1715, 16, Caruthers and Nicholson's Statute
Laws of Tennessee, provides that, "No person shall be com¬
mitted to prison for any criminal matter, until examination
thereof be first had before some magistrate, which magistrate
shall admit the party to bail, if bailable, and shall record the ex¬
amination of the party, and also the full matter given in evi¬
dence, both against him and for him, with all concurring cir¬
cumstances, and shall take recognizance with good and suffi¬
cient security to the State of Tennessee for the informer to ap¬
pear and prosecute as the laws of this State do direct, and like-
10
110
form boor
wise for all evidences for the State to appear, and give evidence
against the criminal at the next court where the matter id
cognizable ensuing such examination; which examination and
recognizances so taken shall be returned to the office of the
court wherein the matter is to be tried, under the penalty of
twelve dollars and fifty cents for every neglect, &c.
The first thing therefore, which a a justice tp£ the peace
should do, when a person is arrested on a crimtiajf charge, and
brought before him, is to tane and rfecoijd,£l|r"Examination of
the person accused, and of the witjiesseSnWimnd against him.
If the justice should be of opinioijKhat the accused ought to be
committed or bound over for furtyr trial, he should take the re¬
cognizance of the prosecutor thus:
Form of ProsecutorV Recognizance.
State of Tennessee, )
County. $
I, A B, acknowledge myself indebted to the State of
Tennessee, in the sum of twro hundred and fifty dollars,
to be levied of my propei^ffi^yj ayl chattels, lands and
tenements, hut to be voicSpn«$nditi|pn that I make my
personal appearance on the first Wednesday e^jfthe term
of our next Circuit Court, to be hel4 for the county a-
foresaid, on the_2d., Monday in May next, then and
there to prosecute a certain C D, oh ^ charg^ of having
feloniously stolen, taken and carried ajgay, a certain black
gelding, the property of the said A B, and not depart said
court without leave first had and obtained. Given under
my hand and seal, the 15th day of April 1837.
A B. [Seal.']
Signed, sealed and acknowledged }
before me. >
JOHN COKE, J. P. [Seal] }
justices of the peace.
Ill
Form of Recognizance for a witness.
State of Tennessee, )
Davidson County. $
I, E F, acknowledge myself indebted to the State of
Tennessee, in the sum of two hundred and fifty dollars,
to be levied ofi-my proper goods and chattels, lands and
tenements, but'.tlabe void on condition that I make my
personal appearance, on the first Wednesday of the term
of our next Circuit Court, to be held for the county afore¬
said, on the second Monday in May next, then and there
to give evidence in behalf of the State, in the case of the
State against C D, on a charge of having feloniously,
stolen, taken and carried away, a certain black gelding,
the property of one A B, and not depart hence without
leave of the court first had and obtained. Given under
my hand and seal, the fifteenth day of April 1837.
E F. [Seal.]
Signed, sealed and acknowledged }
before me, >
JOHN COKE, J. P. [Seal] )
Form of Recognizance of Prisoner and Securities.
State of Tennessee, )
Davidson County. )
We, CD, E F, and G H, jointly and severally ac¬
knowledge ourselves indebted to the State of Tennessee,
that is to say, the saidC D, in the sum of five hundred
dollars, and the said E F, and G H, in the sum of two
•1-12
FORM BO Or.
hundred and fifty dollars each, to be levied of our re¬
spective goods and chattels, lands and tenements, but to be
void on condition that the said C D, make his 'personal
appearance on the first Wednesday of the term of our
next Circuit Court, to be held for the county aforesaid,
on the second Monday in May next, then and there to
answer the State, 011 a charge of having feloniously stolen,
taken and carried away, a certain blaclc^elding, the pro¬
perty of one A B, and not depart thence without leave of
the court first had and obtained. Given under our hands
and seals, the 15th day of April 1837.
Signed, sealed and acknowledged ) CD. [Seal.]
before me, > E F. [Seal.]
Jl\0. COKE, J. P. [Seal.] ) G H. [Seal.]
The form of the recognizance taken by a justice ofthe peace,
will be the same as the foregoing in every criminal prosecution.
It has been the practice of justices of the peace in this State
to take the acknowledgment out of court, of the person recog¬
nized to appear and answer a criminal charge, in the same man¬
ner that recognizances are taken in courts of record, without
requiring the party recognized, to sign and seal his recognizance
It is true, that nearly all those who have published forms for the
use of justices of the peace and sheriffs in this State, have given
such precedents; but it is believed that justices have no power to
take such a recognizance, and that when taken it is not binding
on the person acknowledging it. No statute of this State author¬
ises such a proceeding, and a recognizance taken in this manner,
has no binding effect at common law. The method of putting in
bail to a justice of the peace or sheriff, (that is the putting in
securities for the party to answer the charge against him,) is by
entering into a bond or obligation, with securities, not fictitious
persons, as in the Case of common bail, but real substantial,,
justices of the peace
113
responsible bondsmen. See 4th part of Blackstone's Commen¬
taries, (Chitty's Ed. 297. 8 do. 290.) And this bond or obliga¬
tion, according to the form given by Blackstone, must be seal¬
ed, acknowledged and delivered by the party executing it.
Form of a Mittimus.
State of TenneSsee> ) To the Sheriff or keeper of
Davidson County. ) the common Jailofs'd. county
Whereas, C D, of said county has been legally arrested
and brought before me* John Coke, a justice of the peace
for said county, upon a charge of having feloniously stolen,
taken and carried away a black gelding, the property of
one A B; (or if for any other crime describe it here) and
upon careful examination of the witnesses, both against
and for the said CD, in his presence, concerning the
premises, it is considered by me that he is guilty of the
crime charged ; and the said, C D, being required by me
to enter into recognizance with two securities, to wit: him¬
self in the sum of five hundred dollars, and his securities in
the sum of two hundred and fifty dollars each, for his ap¬
pearance at our next Circuit Court, (or if the case be not
bailable, state that fact,) and the said C D, failing to give
bail as required by me, &c. These are therefore to com¬
mand you to receive the said C D, into your custody in
the common jail of said county, and him keep, until he
shall be discharged by due of course of law. Given un«
der my hand and seal, the 15th April 1837.
JOHN COKE, J. P. [Seal.]
10*
114
FORM BOOKf.
This is the form where the offence is bailable and the part)'
cannot find bail; for in that case it is to keep the prisoner in cus--
tody, "until he shall be discharged by due course of law." But
where the commitment is in the nature of a punishment, the time'
of imprisonment must be stated, and if it be, "until the party
be discharged by due course of law," it will be bad. 5 Barnwell
and A. 4th part Blackstone's Com. (Chitty'sEd.) 800.
Judgment by the justice in Criminal Cases.
Where the justice is of opinion that the accused should
be committed or bound over for further trial, he should
enter a judgment on the warrant thus:
The State vs. C D.
This day this cause came on to be heard and tried by
me, when it was considered by me that the defendant is
guilty of having feloniously, stolen, taken and carried
away the horse, as charged in the warrant, (or whatever
the crime is, as the case may be,) and that he enter into
recognizance with two securities, himself in one thousand
dollars, and his securities in the sum of five hundred dollars
each, to appear at our next Circuit Court, and upon failure
thereof to be committed. Given under my hand and seal,
the 15th day of April 1837.
JOHN COKE, J. P. [Seal]
Where the justice is of opinion that the defendant should
be acquitted, he should enter the judgment thus:
The State vs. C D.
This day this cause came on to be heard and tried by
me, when it was considered by me, that the defendant is
JUSTICES OF THE PEACE" tlB1
flot guilty of the offence of larceny, as charged in this-
warrant against him, and that he' go hence without day,
&c. Given under my hand and seal, the 15th day of
April 1837.
JOHN COKE, J. P.. (Seal.)
porjis in. civil ant) fena.l' actions.
CHAPTER II.
ACTIONS OF DEBT.'
Warrant by the payee against the maker of a note.
State of Tennessee., ) To any lawful officer of said
County. ) county.
You are hereby commanded to summon. C D, to ap-'
pear before some justice of the peace for said county, to
answer A B, of a plea of debt due by note, signed by the
said C D, (agreement, or settled account, as the case may
be,) for a sum within the jurisdiction of a justice, and
make due return of this warrant. Given, under my hand
and seal, the 15th day of April 1837.
JOHN COKE, J. P. (Seal.)
The act of 1836, ch. 17, section 1, provides thatjustices^of the
peace shall have jurisdiction over all debts and demands, due
on any specialty, note, or agreement, signed by the party to
be charged therewith, on which the judgment will not sound in
damages, and over all settled accounts signed by the parties,-
when the amount claimed to be due on such specialty, note,
agreement or account, ddfe's not exceed one hundred dollars.
lid
form sock.
In the case of Tiiompson va. Gibson, Tennessee R. 335/
(1814,) the Supreme Court of this State decided that it is the
balance due on a contract which gives jurisdiction to a magis-
trate. And in the case of Boyd vs. Hensley, 5 Haywood's R.
S58, the court decide, that a note for one hundred dollars, due
some time before the warrant issued, is evidence before or upon
appeal from a justice of thd peace- The plaintiff may after¬
wards prove or allow credits to reduce his claim to an amount
over which the justice has jurisdiction- And the proper time
to ascertain the quantum, of the plaintiff's claim, is upon the
trial; the trial is the means by which this is effected, and the re--
suit of the trial is the ascertained quantum, the foundation of
the judgment to be rendered.
A justice of the peace out of court has no jurisdiction above
fifty dollars, on notes or agreements for specific articles. Ar¬
nold vs. Embree, Reek's R. 134, (1823.) A justice of the
peace has no jurisdiction where the note sued on, exceeds fifty
dollars, and is payable in current bank notes- Bedford vs.
Hickman, 1 Yerger's R. 165. (1829.)
The assignee of a note against the maker and endorser.
State op Tennessee ) To an Lawful Officer of
County. ) said County.
You are hereby commanded to summon C D, the ma¬
ker, and E F, the payee of said C D, to appear before
some justice of the peace for said county, to answer A
B, assignee of the said E F, of a plea of debt due by
note signed by the said C I), and endorsed by the said
E F, for a sum within the jurisdiction of a justice, and see
that you make due return oi tins warrant. Given under
toy hand and seal, the 15th day of April 1837.
JOHN COKE, J. P. (Seal.)
justices or the peace
117
Tf the officer should return the warrant executed on one of the
defendants, and in his return say nothing about the other de¬
fendant, or return as to the other defendant, that he is not to-be,
fyund in his county, the plaintiff may enter a note prosequi,
as to the defendant on which the warrant was not served, and
proceed to trial, as though suit had been originally instituted
against the other defendant alone.. Act of 1834, ch. 87. In
the case of Moon against Harmon, 4 Yerger's R. 21, (1883,)
the Supreme Court decided that a warrant issued and returned
before ajustice of the peace against two, and served on one, on¬
ly, is good; and that a judgment may betaken against the one
served, without further notice being taken of the one not ser¬
ved.
If the note should have passed by assignment through
several hands, and the holder should desire to sue none but
the maker thereof, believing him able to pay it, the action
may be brought thus.
The last endorsee, against the maker alone.
State of Tennessee ) To any Lawful Officer of
County. ) said County.
You are hereby commanded to summon C D, to appear
before some justice of the peace for said county, to an¬
swer E F, to the use of M N, of a plea of debt due by
note, signed by the said C D, for an amount within the
jurisdiction of ajustice, and see that you make due return
of this warrant. Given under my hand and seal, the 15+
April 1837.
JOHN COKE, J. P. (Seal.)
118
form book.
In the infancy of promissory notes, it was holden in general
terms that the endorsee of a promissory note, in order to hare
recourse on the endorser, must make demand of payment of the
maker, and give notice to the endorser in a reasonable time.
The undefined limits of this time were found by experience to
lie productive of great uncertainty. To remove this uncertain¬
ty the judges determined that demand of payment should be
made of the tnaker when the note became due, and that was
settled to be on the third day of grace, exclusive of the day ap¬
pointed for payment; and if that happened on Sunday, then the
demand to be made on Saturday, the day preceding—and notice
given to the endorser of the non-payment in a reasonable time.
Stothart fy Co. vs. Lewis, 1 Ten. R. 25-5, (1807,) Broddie vs.
Searcy, Peck's R. 183, (1823,) Brown vs. Lusk, 4 Yer. R. 210.
But where A. in payment of a debt, endorses to B. the note of
C. and by the endorsement "waves demand and notice," the en¬
dorser A. is liable on his endorsement, without demand being
made or notice given. Johnson vs. Searcy and Marshall, 4
Yer. R. 182, (1833.) Or where the endorser binds himself in
the endorsement, "to stand good for the note until paid," he is
not entitled to demand and notice. 3 Yerger's R. 487, (1832.)
3 Yerger's R. 330.
Warrant of partners against the maker of a note.
State of Tennessee, ^ To any lawful officer of said
County, ) county.
You are hereby commanded to summon A. B. to ap¬
pear before some justice of the peace for said county, to
answer John Yancy and Archibald Summers, partners iu
trade, trading under the partnership name and style of
Yancy and Summers, of a plea of debt duo by note,
signed by the said A. B. for an amount within the jurisdic¬
tion^ a justice, and see that you make due return of
justices of the peace, 119
this warrant. Given under my band and seal the 15th
day of April, 1837,
(To be signed.)
Warrant against partners, in an action of debt.
State of Tennessee, ) To any lawful officer of said
County, $ county-.
You are hereby commanded to summon John Yancy
-and Archibald Summers, partners in trade, trading under
the firm and style of Yancy aud Summers, to appear be¬
fore some justice of the peace for said county, to answer
John Grunter, of a plea of debt due by note, signed by
the said Yancy and Summers, by their partnership name
and style, for an amount within the jurisdiction of a justice
of the peace, and see that you make due return of this
warrant. Given under my hand and seal, &c.
(To be signed.)
One parner cannot hind another by seal, unless authorized
by the parnership agreement. Blackburn vs. M'Mister, Peck'#
It. 371. Same point, 1 Yerger's R. 26, (1820.).
Warrant against husband and wife, on a note given by the
wife before marriage.
"State of Tennessee, ) To any lawful officer of said
County. ) county.
You are hereby commanded to summon Lemuel Swisher
and Jane Swisher his wife, (formerly Jane VanCoozer,)
to appear before some justice of the peace for said county,
120
form rook.
to answer A. B. of a plea of d^ot due by note, signed by
the said Jane when sole, (single,) for an amount within
the jurisdiction of a justice, and see that you make due
return yf this warrant. Given under my hand, &c.
(To-be signed.)
Warrant by husband and wife, on a note given to the wife
while single.
State of Tennessee, ) To any lawful officer of said
County. ) county.
You are hereby commanded to summon A. B. to ap¬
pear before some justice of the peace for said county, to
answer Lemuel Swisher, and his wife, Jane Swisher, (for¬
merly Jane Van Coozer,) of a plea of debt due by note,
signed by the said A. B. to the said Jane when single, for
an amount within the jurisdiction of a justice, and see that
you return this warrant in due time. Given under my
hand, &c.
(To Le feigned.)
Warrant by the husband alone, and note given to ike
icife when single.
State of Tennessee, ) To any lawful officer of
Davidson. $ said county.
You are hereby commanded to summon A B, to ap¬
pear before some Justice of the Peace for said county, to
answer Lemuel Swisher of a plea of debt due by note,
signed by the said A B, to Jane Swisher the wife of the
justices of* the peace.'
plaintiff, for an amount within the jurisdiction of a Justice
of the Peace, and see that you make due return of this
warrant. Given under my hand &c.
It is a general rule, that in all cases where the right or cause of
action survives to the wife after the death of the husband, that
she ought to be made a party. Bryant vs. Puckett's JLdmr.,
-3 Haywood's R. 252, [1817.]
Warrant by an executor or administrator against the
maker of a note.
State op Tennessee, ) To any lawful officer of
Davidson County. ) said ccunty.
You are hereby commanded to summon A B, to ap¬
pear before some Justice of the Peace for said county, to
answer C D, executor of the last will and testament of E
F, deceased, of a plea of debt due by note, signed by the
said A B, for a sum within the jurisdiction of $a justice,
■and see that you make due return of this warrant. Given
•under my hand, &c.
(To be signed.)
If the action be brought by an administrator, then say, "to an¬
swer C D, administrator of the goods and chattels, lights and
•credits of E F, deceased," &c.
11
122
form boor.
Warrant by the payee against the executor of the maker of
a note.
State of Tennessee,) To any lawful officer of
County. ) said county.
You are hereby commanded to summon C D, execu¬
tor of the last will and testament of E F, deceased, to ap¬
pear before some Justice of the Peace for said county, to
answer A B, of a plea of debt due by note, signed by the
said E F, in his life time and delivered to the plaintiff, for
an amount within the jurisdiction of a justice, and see that
you make due return of this warrant. Given under my
hand and seal &c. (To be signed!,)
Or if the Warrant be against an administrator, then say,
"summon C D, administrator of the goods and chattels,
rights and credits of E F, deceased, and conclude as in
the foregoing precedent.
When administration is granted to several, and one dies or
resigns, the entire authority remains with the survivors. 6 Yer-
gers R. 16"f. But where several are appointed executors, and
one of them absents himself on a journey for a temporary pur¬
pose, intending to return, a creditor of the testator cannot sue
the eo-executor alone, under our acts of assembly. To author¬
ize suit against an executor, when there are two, one must be
removed out of the jurisdiction by change of residence. 5 Yer-
gers R. 295, (1838.)
If an execution issue against a testator or intestate in his life
time, and he die before the return day, it may be levied on his
personal property. But if after his death, such execution issue,
it is void, and does not authorize the seizure and sale of the
property; forthe personal estate then belongs to the executor
or administrator and cannot be reached by execution. 5 Hay-
Wood's R. 188, 148. (1818.) 5 Yerger's R. 804, (18SS.)
justices of the peace.
Warrant on an order, which has been protested by the per-
son onwhomdravm.
State of Tennessee,) To any lawful officer of said'
County. 5 county.
You are hereby commanded to summon A B, to ap~
pear before some Justice of the Peace for said county, to
answer C D, of a plea of debt due by order, drawn by the
said A B, in favor of the said C D, on one E F, and by
him protested, and see that you make due return of this
warrant. Given under my hand and seal, &c.
(To be signed.)
The act of 1762-, ch. 9, sec. 5, directs that no suit shall be
brought against the drawer of an order, before the same shall
have first been protested for non-acceptance, and notice given
thereof to the drawer of the refusal of the drawee to pay &c.
In the year of 1814, the Supreme Court decided that, orders
were on a different footing from bills of exchange, that suit
might be brought on the Original contract, and that the act of
1762, ch. 9, does not take away any remedy which the party
might have had previously to drawing the order: Harwell v.
McCullock,: 2 Tens. R. 275. And in the case of Bradley v.
McClellan: 2 YergersR* 801, the court decide that the drawing
of an order by A in favor of B, is prima facie evidence of in¬
debtedness by A to B; and the acceptance of the order by the
person on whom drawn, is likewise prima facie evidence of in¬
debtedness by him to the drawer, under the act of 1762.
The foregoing forms may be varied to suit any action brought
by or against partners, by or against husband and wife, execu
t'ors or administrators &c., either in assumpsit, case, trespass,
or in any other action. It will therefore be unnecessary to give
more than one form in each succeeding action. The act of
1885, ch. 17, already referred to, giving Justices of the
Peace jurisdiction of one hundred dollars, is special and limited.
First, this jurisdiction is limited to specialties, notes, agreements
form. book.
and settled accounts signed by the party to be charged there-*
with. Second, the specialties, note or agreement, must he for a
fixed and specific sum of money, so that the judgment will not
sound in damages. Justices of the Peace have therefore no
jurisdiction over fifty dollars, on notes for specific articles, or
notes which reach for more than fifty dollars worth of bank
notes, or specific articles, because the, judgment in those ca¬
ses would sound in damages., Nor have they jurisdiction of
accounts over fifty dollars on which an action of debt might lie,
unless such accounts, are signed by the parties.
The second section, of the act of 1835, ch. 17, enacts that the
Justices of the Peace shall have jurisdiction over all sums not
exceeding-fifty dollars, which may be due by open account,
whether for goods, wares and merchandise sold and delivered,
or for work and labour done, or for specific articles, or by con¬
tract in loriting signed by the party to be charged therewith,
on which the judgment would sound in damages, whether due
by obligation note, or assumpsit.
ACTION OF ASSUMPSIT.
Warrant for an account for work and labor done, and for
goods, wares and merchandise sold and delivered.
State of Tennessee, £ To any lawful officer of
County. ) said county.
You are hereby commanded to summon A B, to ap¬
pear before some Justice of the Peace for said county,
to answer C D of a plea of assumpsit, due by account for
work and labor done, and for goods, wares and merchan¬
dise, sold and delivered, by the said C D, to the said A
B, for an amount within, the jurisdiction of a justice: and
see that you make due return, of this warrant. Given un-.
4er my hand and seal, &c. (To be signed.)
JUSTICES OF THE PEACE.
125
if the warrant be for money lent, or for money had and
received by the defendant to the use of the plaintiff, say:
"Of a plea of assumpsit, due by account, for money lent
and advanced to the said A B, by the said C D." If
for money had and received, say: "for money had and re¬
ceived by the said A B, for the use of the said C I),
&c." Most of the cases in actions of assumpsit, came
under what is called the book-debt law. Where there are
no witnesses, to the knowledge of the plaintiff, capable of
proving the delivery or ihe articles sold to the defendant,
the plaintiff should file a copy of his account from his book
of accounts, with the warrant.1
OATH OF THE PLAINTIFF.
I, A B, do solemnly swear that the matter in dispute is
a book account, and that I have no means to prove the de¬
livery cf the articles mentioned in my account, or any of
them, but by my book; and that such book doth contain a
true account of all the dealings, or the last settlement of
accounts between myself and the defendant, and that all
the articles therein contained, were bonafdc delivered; that
I have given the defendant all just credits, and that the ac¬
count here filed, is a just and true copy from; my book of
accounts. So help' me God. /
The plaintiff can only prove by his own oath, articles sold
and delivered within two years before the bringing of the actiohr
and not longer; and he cannot prove by his book and oath, air
account which exceeds seventy-jive dollars. If the defendan
give notice to the plaintiff, that he will require his book to ber.
. produced at trial, then no copy shall be received as evidence..
II*
126
FORM BOOK.
ACTION OF COVENANT.
Warrant on a note payable in specific articles.
State of Tennessee, ) To any lawful officer of said
County, $ county.
^ou are hereby commanded to summon A B, to ap¬
pear before some Justice of the Peace for said county, to
answer C D, of a plea of breach of covenant, due by note
under seal, for cows, corn, fodder, &c., an amount within
the jurisdiction of a justice, and see that you make due re¬
turn of this warrant. Given, under my hand and seal &c.
If the note for specific articles be not under seal, or if
the contract for the delivery of specific articles be by pa¬
rol, then say; "Summon A B, to appear before some
Justice of the Peace for said County, to answer C D, on
a breach of contract in writing, for having failed to deliver
ten barrels of corn to the plaintiff, (or if the contract
be by parol, say; "on a breach of contract for having fail¬
ed to deliver one thousand pounds of pork, twenty loads
of wood and five hundred bundles of ^fodder to the plain¬
tiff,) to his damage fifty dollars. And see that you make
due return of this warrant. Given under, &c.
(Tube signed.)
TRESPASS ON THE CASE.
The act of 1829, ch. 24, provides that any (one) Justice of
the Peace shall have jurisdiction in all cases of damages, wheth¬
er the same arose from matter of contract or any kind of tort or
wrong, (except actions of slander,) where the damages claimed
by the plaintiff do not exceed fifty dollars.
•'Jt/rffCES 0F 'THE PEACE. A%t
Warrant on the above recited act.
{State of Tennessee, ) To any lawful officer of
County, ) said county.
^You are hereby commanded to summon' A to ap¬
pear before some Justice of the Peace for ^aid county, to
answer C D, of a plea of trespass on the case, for finding
a cow and calf, the property of the plaintiff, and convert¬
ing them to his own use, well knowing said cow and calf
of right to belong to the said plaintiff. To the damage,of
the plaintiff twenty-five dollars* and see that you make due
return of this warrant., Given under my hand, &c.
This is what is commonly called atraction of trover, and con¬
version, which was in its original,,, an action of trespass on the
case* for the recovery of damages against a person who had
found another's goods,, and converted them to his own use.
This action will lie for the recovery of the value of any person¬
al property, which the, owner finds in the possession of another,
whether lost by loaning or hiring, (where the time for
which the property loaned or was hired has expired,) or at any-
game of hazard, or by any other means, except where the own¬
er parts with the property by fair and honest contract:., and by
a fiction of law, the warrant must allege that the defendant
found the property charged to have been lost. Where the first
taking-was.unlawful, or the property has been converted, do
demand is necessary. If the goods come to the hands of the'
defendant, by finding, or bailment, an actual conversion, or a
demand and refusal must be proved on the trial. 3 Blackstone
Com. 152;- 2 Bulst. 309; .6,Mod. 212.
12B
foitm book.
Warrant against a constable or ithcr officer for letting the
defendant escape.
state of tennessee, ) To any lawful officer of said
County. ) county.
You are hereby commanded to summon A B, a consta¬
ble for said county, to appear before some Justice of the
Peace for said county, to answer C D, of a plea of tres¬
pass on the case, for having wilfully and negligently suf¬
fered one E F, whom he the said A B, as constable, had
arrested by virtue of a ea. sa., at the instance of the plain¬
tiff against the said E F, to escape out of his custody,
without delivering him over to jail, or taking bond and se¬
curity for his appearance at cburt as required by law. To
the damage of the plaintiff forty dollars. Given under my
hand and seal, the 15th April 1837.
JOHN COKE, J. P. [Seal.]
If the warrant be against a man for an injury done to a
horse which he had borrowed, proceed as in the above
precedent until you come to the words "plea of trespass
on the case," then proceed thus: "For that the plaintiff
loaned to the said defendant a certain black gelding, the
property of him, the said plaintiff, to ride to Murfreesbo-
rough and back again; and the said defendant did faith¬
fully promise the said plaintiff to ride said horse moder¬
ately, and return him to the plaintiff within four days; but
the defendant regardless of his promise and undertaking,
rode said horse to Huntsville in the State of Alabama,
and through negligence and hard-riding suffered said horse
to founder; by reason whereof the said horse became mueh
justices of the peace
injured and unable to travel, so that the said defendant did
not return him to the said plaintiff, before the expiration
of one month, from the time of the loan as aforesaid. To
the damage of the plaintiff, fifty dollars; and see that yon
make due return of this warrant. Given under my hand
(To be signed.)
If the warrant be for fraud in the sale of a horse, or for
a breach of warranty in the sale of property, or fraud
practised in the exchange of property, or against a justice
of the peace, sheriff or constable, for neglect of duty, or
refusing to perform his duty, or against a common carrier,
wagoner or other person intrusted with the care of proper¬
ty, lor the loss or injury of such property by negligence,
the warrant should, in all these cases and the like, fallow
the above forms to the words "on the case," and then set
forth the nature of the complaint, and conclude as above.
AN ACTION OF TRESPASS.
Warrant for shooting the plaintiff's mule; or for an assault
a ad battery committed on the body of the plaintiff.
State of Tennessee, £ To any lawful officer of said
County. ) county.
You are hereby commanded to summon A. B. to ap¬
pear before some justice of the peace for said county, to
answer C. D. of a plea of trespass with force and arms,
for shooting and killing a mule, the property of the said
plaintiff, (or for having committed an assault and battery
on the plaintiff, by beating and wounding him, as the case
130
FORM BOOK.
may be,) to. his damage thirty dollars, and see that ypn
make due return of this, warrant. Given under my hand
and seal the 15th day of April, 1S37.
(To be signed.)
A warrant issued returnable under the act of 1829, ch, 24,
before a justice of the peace for trespass, must contain a state
ment of the hature of the trespass,, and the property trespassed
upon; and a judgment given upon such warrant without this
statement, is erroneous P arris vs. Brown, 5 Yerger's R, 267,
(1833.)
PENAL ACTIONS.
Penal actions are suits on any penal statutes, for the recovery
of penalties and forfeitures created by statute; and when given
to any common informer, or in other words to any such person
or persons as will sue for the same, they are called popular ac¬
tions, because they are given to the people in general. But
when one part is given to the State or to the county, to the
poor, or to some public use, and the other part to the informer1,
then the suit is called a qui tam action. Sometimes the forfeit¬
ure is given to the State, or the county alone. 3 Blackstone*s
Com. 161-2. 3 Bl. do. 307. As suits on penal statutes rarely
occur before justices of the peace, it is not deemed necessary to
give more than one form, which can be easily varied to suit any
case which may arise. And as the warrant should allege every
fact necessary to sustain the action, the magistrate should never
issue a warrant without turning to the statute on which the ac
tion is brought.
Warrant for selling spirituous liquors to slaves.
This warrant is founded on the act of 1813, ch. 133, which
enacts, that "if any person or persons shall sell any spi-
justices of the peace. 13l
tituous liquors, or other drink, capable of producing intoxica¬
tion, to any slave or slaves, without a permit in writing from the
owner or the person having charge of such slave or slaves, &c.
every person or persons so offending, shall be fined in a sum
not less than $5, nor more than $10, to be recovered before any
justice of the peace of the courity wherein such offence shall be
committed, one half for the use of the person who shall sue for
the same, and the other half to the use of the owner of such
slave or slaves.'1
State of Tennessee, 9 To any laivful officer of said
Gounty. j county.
You are hereby commanded to summon A. to ap¬
pear before some justice of the peace for said county, to
answer C. D. who sues as well for E. F. as for himself,
of a plea of debt due by penalty, incurred by the said A,
B. for having sold spirituous liquors to a certain Bob, a
slave, and the property of the said E. F, without a per¬
mit in writing from the owner, or person having charge of
said slave, and see that you make due return of this war¬
rant. Given under my hand and seal, &c.
(To be signed.)
If the penalty be given to any one who will sue for the
same, then say, "To answdr the complaint of C. D. who
sues for himself alone of a plea. &c." Or if the penalty
be given, one half to the county and the other half to the
person who will sue for the same, then say, "To answer
C. D. who sues as well for the county of Davidson as for
himself, of a plea of debt due by penalty, incurred by,
&c."
132
totlm book
ATTACHMENT.
By the act of 1?94, ch. 1, sec, 24, the attachment is required
to be in the following form.
State of Tennessee, ) To the sheriff of cotm-
County ) ty, greeting.
"Whereas A. B, (or A. B. attorney, agent or factor
(as the case may be, of C. D.) hath complained on oath to
John Coke, Esquire, justice of the peace for said county
(or one of the judges of the Circuit Courts in and lor the
State aforesaid,) that E* F. is justly indebted to him, (or
to the said A. B.) to the amount of one hundred and se¬
venty-five dollars, due by note. And oath having been
also made, that the said E. F, hath removed privately,
(or is about to remove himself privately out of said coun¬
ty; or so absconds and conceals himself that the ordinary
process of the law cannot be served on him: or that the
said E. F. is an inhabitant of the State of ,) and the
said A. B. having given bond and security, according to
the directions of the acts of the General Assembly in
such case made and provided; We therefore command
you that you attach the estate of the said E. F if to be
found in your county, or so much thereof repleviable on se¬
curity, as shall be of value sufficient to satisfy the said
debt and costs, according to the complaint; and such
Estate, so attached in your hands, to secure, or so to pro¬
vide, that the same be liable to further proceedings there¬
on, to be had at our next Circuit Court to belield for said
county, at the court house in the town of on the
Monday of next, so as to compel the saidE. F. to
JUSTICES OP THE PEACE
appearand answer the above complaint of the said A. B.
when and where you shall make known to the said court
how you shall have executed this writ- Witness John
Coke Esq. justice of the peace for said county (or judge
of the 6th Judicial Circuit, &c.) the 15th day of April
1837, and 61st year of American Independence."
JOHN COKE, J. P. (seal.,
1 he bond given on obtaining the attachment-, shall be in tl <
following form. Act of 1794, cli. 1^ sec. 24.
uKnow all men by these presents, that we A B and C
D, all of the county of are held and firmly bound
unto E Fr in the penal sum of one hundred and fifty dol¬
lars, to be paid to the said E F, his certain attornp), ex¬
ecutors, administrators or assigns. For Which payment
well and truly to be made, we bind ourselves, and each of
our heirs, executors or administrators, jointly and several¬
ly, firmly by these presents. Given under our hands ai d
seals, this day of A. D. 18
The condition of the above obligation is such, that
whereas, the above bounden A B, hath, the day of the
date hereof, prayed an attachment at the suit of himsel
against the estate of the above named E F, for the sum of
seventy-five dollars; and hath obtained the same return¬
able to our next circuit court, to be holden for the county
of on the Monday of next,at thr
court house in th$ town of —■—. Now, if the said A B,
shall prosecute his said suit with effect, or in case he fail
therein, shall well and truly pay and satisfy the-said A B.
12
134
form BOOK.
all such costs and damages as shall be awarded and reco¬
vered against the said A B, his heirs, executors- .and ad¬
ministrators, in any suitor suits which may hereafter be
brought, for wrongfully suing out said attachment, then the
above obligation to be void, otherwise to remain in full
force aad effect. Given under our hands and seals, the
date above written.
A B (Seal.)
C D (Seal.)
Test,—JOHN COKE, J. P. (Seal.)
Affidavit for Attachment.
State of Tennessee, )
County. $
This' day came A B, before me John Coke, a justice
of the peace for said county, and made oath that E F, is
justly indebted to him in the sum of seventy-five dollars,
after giving all just credits, and that the said E F, so ab¬
sconds or conceals himself that the ordinary process of the
law cannot be served on him. Sworn to and subscribed
before me the 15th day of April, 1837.
A B.
JOHN COKE, J. P. (Seal.)
justices of the peace
135
Form of a Garnishee summons issued by, and returnable
before a justice of the peace.
State of Tennessee, ? To any lauful officer of said
County $ county.
You arc hereby commanded to summon G H, to ap¬
pear before some justice of the peace for said county,
where an attachment at the instance of and in favor of A
B, against the estate ofC D, for the sum of $20, shall be
returned, then and there to answer on oath what he is indebt¬
ed to the said CD, and what effects of the said C D, he has
in his hands, and had at the time of serving said attach¬
ment, and what effects or debts of the said C D, there are
in the hands of any other, and what person, to his knowl¬
edge or belief. Given under my hand and seal, the 15th
day of April, 1837.
JOHN COKE, J. P. (Seal.
Final judgment against a Garnishee, who answirs
A B' )
vs. > Original Attachment.
IM
In this case, G H, who has been summoned as a gar¬
nishee, upon his examination on oath before me stales, that
he is indebted to the said defendant by book account fif¬
teen dollars, which is now due in cash to him, the said de¬
fendant: It is therefore considered by me that the plaintiff
in said attachment recover of the said G H, garnishee,
the sum of $15 and costs, and that he have execution,
Sic. April 15th, 1837.
JOHN COKE, J. P. (Seal.)
136
FORM BOOK
la the case of McMinn vs. Hall, 2 Tenn. R. 328, the Su¬
preme Court say, the Legislature only intended to call upon
third persons as garnishee, when they were bound to pay mo¬
ney, and not property, and the time for payment had elapsed.
Attachments must issue under the seal of the justice, and the
proceedings must show the debt was sworn to. H alker and
others vs. IVynne and others, 3Yer. R. 62, (1832.) 4 Yer. IL
162. In the case of Dunn vs. Myers, 3 Yer. R. 414, our court
of Lrrors and Appeals decided that the act of 1794. eh. 1. sec.
19, does not authorize the issuance of an attachment, where a
party moves out of. the county openly and notoriously, or when
he may have removed and taken up his residence in another
county in this state. The act requires that oath shall be made
that the removal was "private," thus making the act consistent,
for in such case there would be g«od reason to say, that the or¬
dinary process o f law, could not be served.
The act of 1836, ch. 42, authorizes a justice of the peace to
issue attachments returnable before himself, or any other jus¬
tice of the peace, upon all sums nnder one hundred dollars
where justices of the peace now have jurisdiction by warrant,
-&c.
In the case of Lucky vs. Miller, S Yer. R. 90, (1835,) the
Supreme Court decided that the bond required for prosecuting
an attachment, must be conditioned to prosecute the suit with
effect, uor pay all costs and damages which may be recovered
in any suit which might thereafter be brought for wrongfully
suing out the attachment.'1 But no condition is required to pay
damages for wrongfully suing out the attachment, whether the
suit ts prosecuted with effect or not. And in the case of Chil¬
dress vs. Dickins and Taylor, 8 Yer. R. 113, the court decided
that a debt which is not due, cannot be attached by the laws of
Tennes&ee.
In the case of Huff vs. Mills others-, 7 Yer. R. 42, the court
decided that a debt secured by a negotiable note, upon which
suit has been brought, may be attached in the hands of the gar¬
nishee, and that the answer of the garnishee is conclusive as to
his liability. But if the garnishee state that he executed a no-
JUSTICES OF THE PEACE
137
gotiable note or bill single, but did not know who holds it, or
whether it be assigned or not, he does not state that he is in¬
debted to the debtor of the attaching creditor, and no judgment
can be given against him.
Judgments by justices of the peace in civil cases.
As the Legislature has given a form for keeping a judgment
and execution docket, with particular directions how to make
the entries thereon, it would be suplusage to give forms for en¬
tering the judgments on all the actions herein mentioned.—
The authors however, deem it advisable to insert in this work
the form adopted I y the Legislature.
The 17th section of the act of 1835, ch. 17, enacts that, "the
judgment and execution dockets which the justices of the peace
are required by the 7th section hereof to keep, shall be accord¬
ing to the form hereto annexed, which is hereby made a part
of this act."
13*
Form of judgment and execution docket for Justices of the Peace.
No.
Date of
trial.
Parties' ■
Names.
Amount of
Judgment.'
by whom
stayed.
Return'g
Officer,
Execution, IbUI of cost,
when iss'dj
Officer's
Return.
. 1
1836,
Jan. 16.
John Doe.
vs.
R. Roe,
$98 SU
J. Denn
T, Gripe
I
1836, (justice J. P.
June 16, {for judgment
land fi. fa,
!37£ cents,
i
Const. Gripe*
serving war¬
rant 50 cents.
1
jWitness A B,
|25 cents.
Fi. Fa. re¬
turned satis¬
fied.
July 15, 1836
T. Cfripe
Const.
JUSTICES OF THE PEACE.
139
The justice will, frequently have to vary the form of entry
according to circumstances and the nature of the action. For
instance, if the judgment should be in favor of an administra¬
tor, upon the .plea of fully administered, the entry should be
made thus:
CD, i
vs. > Plea fully administered.
A B, adndr of E F, )
This day this cause came on to be tried before
me, and after hearing all the evidence adduced on both
sides: It is considered by me that the defendant has well
and truly administered all and singular the goods and chat¬
tels, rights and credits of the said E F, deceased, which
have come to his hands to be administered, and that the
plaintiff recover against the said C. D. administrator as
aforesaid, the sum of $30 debt and damages, and all costs
which have accrued, to be levied of the goods and chat¬
tels of the deceased, which shall hereafter come to the
hands of said administrator to be by him. administered,
April 15th, 1837.
JOHN COKE, J. P. (Seal.)
The foregoing form of a judgment and execution docket,
shows where the name of a person who stays an execution,
should be placed. The first section of the act of 1835, ch. 41,
requires that on all judgments rendered byjustices of the peace,
the judgment debtor (wishing a stay of execution) shall enter
good and sufficient security onthe proper justice's docket where
the judgment is entered.
The supreme court of this state decided in the case nf Hick¬
man vs. Williams, Mar. & Yer. R. 116, (1827,) that the stay
of execution upon a judgment rendered by a justice of the
peace, is in the nature of a judgment confessed by the security
140
FORM BOOK.
for th^ stay, and to bind him he must be present when the jus¬
tice officially enters his name as security, or must sign his own
name as such. If he be not present, a written authority to the
justice, or some other person to enter him as security is necessa-
ry.
A stay of execution can only be allowed within the time the
judgment is under the justice's control, therefore a stay of exe¬
cution, after the time had expired, and at a time when an appeal
could not be prayed, is void, and the securities are not bound,
Patrick vs. Driskill, 7 Yer. R. 140. (1884.)
No execution shall issue on a judgment rendered by a justice
of the peace until two entire days, (Sunday's excepted,) after
the one on which the judgment was rendered,, unless the pi in-
tiff will take the following oath, which- oath should be entered
on the warrant, or on the judgment and execution docket. It
will be better to enter the oath on the warrant, for in case the
proceedings be taken to court, the justice will not be put to the
trouble of drawing off a copy of the affidavit from the docket.
Affidavit for an execution or a ca. sa. to issue <$*c.
A B )
vs. >
C B )
In this case the plaintiff makes oath that he believes that
it is the intention of the defendant to abscond, remove or
defraud him of his debt by removing his property out of
the county. Sworn to and subscribed before me the 15th
day of April 1837. A. B
JOHN COKE, J. P. [Seal.]
justices of the peace
141
Form of an Execution.
State of Tennessee, ) To any lauful officer of
County. $ said county.
You are hereby commanded that of the goods and chat¬
tels, lands and tenements of C D, if to be found in said
county, you make the sum of sixty-five dollars debt and
damages, and all costs of suit, to satisfy a judgment which
A B recovered against him before me on the ^ay of
1837, and see that you make due return of this exe¬
cution according to law. Given under my hand and seal,
the day of 1837.
JOHN COKE, J. P, [Seal ]
Form of an execution, (or ca. sa. as it is usually called,)
against the body of the defendant.
State of Tennessee, ) To any lawful officer of said
County. $ county.
Y'ou are hereby commanded to take the body of C D,
if to be found in said county, and him safely keep, until he
pay and satisfy a judgment which A B obtained against
him before me, on the day of April 1837, for tlie sum
of sixty-five dollars debt and damages, and one dollar and
fifty cents costs of suit, or until he shall be discharged by
due course of law. Given under my hand and seal, the
day of April 1837.
JOHN COKE, J. P. [Seal.]
A bill of the costs should be endorsed on the back of
the execution or ca. sa. issued by a Justice of the Peace,
thus:
142
FORM BOOK.
Judgmi nt rendered the day of 1837 for $65 00
Bantershanks, Constable. For
executing warrant fifty cents
For issuing three subpoenas seventy-five cents
Coke, Justice.—For rendering
judgment twenty-five cents. V 37 1-2
For issuing this execution 12 1-2 cents. )
8. Rasco, a witness, two days attendance 50
W. Gilpin, a witness, one day's attendance 25
Cost $2 37 1-2
JOHN COKE, J. P. [Seal.]
second section of the act of 1817, ch. 57, provides, that
it shall not be lawful for any shei'iff or constable to collect any
fees for the justice (provided for,) unless specially cuthoiized,by
said fees being endorsed on the execution by the justice issuing
the same, and by signing his own name on the said execution.
If either the plaintiff or defendant should pray an ap¬
peal from the judgment of the justice, he, the justice,
should make this entry on the warrant, thus: "From which
judgment, the defendant prays an appeal to the next term
of our circuit court, to be held for county, which to
him is granted, upon his giving bond and security as the
law directs. April 15th 1837.
JOHN COKE J. P. [Seal.]
In the cases of Rogers vs. Hill, and Joiner vs. Lankford,
1 Yer. R. 400, and Coaly vs. Julin; 5 Yergers R. 439, our
Court of Errors and Appeals decided, that where the "proceed¬
ings returned by a Justice of the Peace do not show that In
granted an appeal, except the recital in the appeal bond, that
the circuit court has no jurisdiction, and in such case, should
strike the cause from the docket.
1 25
justices of the peace.
143
Jlppeal Bond.
State of Tennessee )
County. )
We C D, and E F, acknowledge ourselves indebted
to A B, bis heirs, executors, administrators and assigns,
in the sum of one hundred and thirty dollars; but to be
void if the said C D, shall well and truly prosecute with
effect, an appeal which he has this day prayed and obtain¬
ed to our next circuit court to be held for said county, at
the court house in on the 2nd Monday in May next,
from a judgment rendered by John Coke, a Justice of the
Peace for said county, for the sum of sixty-five dollars
debt and damages, and the further sum of two dollars
thirty-sever* and a half cents costs; or if he shall well and
truly pay and sasisfy the judgment of the circuit court, iiy
case there is a judgment rendered by said court against
him* Given under my hand and #eal, the 15th of April
1837. JOHN COKE, J. P. [Seal.]
In the case of Jones yp. Parsons; 2 Yer. R. 321, the Su¬
preme Court, decided that thq covenants required by the stat¬
utes in relation to appeals, are; lst.^that the appellant will
prosecute the appeal with effect; 2nd, and that he will pay and
satisfy the judgment of the Superior Court, in case there is a
judgment rendered above against him. In that case, it is also
determined, that no judgment can be entered against the secu¬
rities in an appeal bond, uuless the bond is in strict compli¬
ance with the provisions of the act of 1794, ehj 1, sec. 63.
The condition of an appeal bond, upon an appeal rendered by
a Justice of the Peace was as follows: "To be void on condi¬
tion that the said Wm.H. McGee doth prosecute an appeal
by him prayed, and" obtained to the next Circuit Court, &c."
Held, that this was insufficient to authorize a judgment to be
144
FORM BOOK.
rendered against the surety in the bond, Mberson vs. McGec
and Season, ! Yer. It. 106, [1834.]
SCIRE FACIAS.
Sci. fa. to revive a judgment in the name of an executor ot
administrator.
State of Tennessee,) To any lawful officer of said
County, ) county.
Whereas A B, obtained a judgment against C I), on
the 5th day of June 1830, before me, John Coke, who
was then an acting Justice of the Peace for said county,
(or before G. Pink Esq. as appears from his official boo^
and papers now in my office, as the case may be,) for the
sum of sixty-five dollars debt, and two dollars sixty-two and
a half cents costs; and whereas some time after said judg¬
ment was rendered, the said A B, departed this life, and
one E F, took out letteis of administration on his estate*
These are therefore to command you to summon the said
C D, to appear before toe, to shew cause, if any he has,
why said judgment should not be revived and execution
awarded in the name of the said E F, administrator of the
said A B, deceased, as aforesaid. Given under my hand
and seal, the day of 18 ,
JOHN COKE, J. P. [Seal.]
The act of 1831, ch. 11, sec. 2, provides that the several Jus¬
tices of the Peace in this State, shall have power to issuci a sci,
fa, in all cases before them when it may be necessary, in thu
same manner and subject to the same rule as such writs are is¬
sued from a court of record.
justices op the peace.
145
FORCIBLE ENTRY AND DETAINER.
Forcible entries and detainers, forcible detainers and unlaw¬
ful detainers, are by the act of 1321, ch. 14, tnade cognizable
before any Justice of the Peace of the county in which they are
Committed. Although it is provided by the 25lh section of said!
act, that any two Justices of the Place, shall be competent to
Conduit the proceedings as contemplate Iby tlie act,yet by the
act of 1825, ch. It, sec. 6, one Justice of the Peace is sufficient
f >r the trial of any iiittir, or the issuance of any warrant,
which by the existing laws, re pilrci the presence of two justices.
'Form rf complaint made to a Justice of Ike Peace by the
party agrrir.je I fyc.
State of Temmessee, ) To A B, ci Justice of the
Davidson County. $ Peace.
The complaint of C D, of said county, would himself
bog leave to show unto your worship, that on the daj
of 1837, lie was lawfully pcssessod of a certain house
and lot, situated on Cherry Street in the city of Nashville,
and county aforesaid, and known and designated in the oi-
iginal plan of said city, by lot, No. 5G, it being the house
and lot occupied by the said C D, on the day and year
aforesaid, and to which he, the complainant, claims title in
fee by descent fiom his father G W; (or by lease for life,
or for years, &c. as the case may be;) and being so pos¬
sessed as aforesaid, one E F, on the day of 1837,
with force and strong hand, entered into the said tenements
with the appurtenances, and ejected him the said C D, out
of his possession, and with force and strong hand suUcon
tinues to detain and hold said tenements aid appurtenances!,
against the consent of the said C D, to his great injury,
and therefore he prays process for a jury to be summoned
146
form book*
to inquire into, and try said forcible entry and detainer.
May 5th, 1837.
C D. Complainant.
The form of the precept required by the act of 1821 to be is¬
sued by the Justice, and directed to the sheriff, commanding
him to summon twenty good and lawful men, to try the forcible
entry and detainer &c., complained of, is given in said act in the
form following;
State op Tennessee, ) To the Sheriff of
County. £ County, Greeting:
Whereas, complaint in writing is made to the subscri¬
ber, J C, one of the Justices of the Peace in and for
said county, of a certain forcible entry and detainer, (or if
detainer only, then say, a certain forcible detainer,) made
by E F, into the messuage, or upon the bonds of C D, in
the county aforesaid: We therefore command you, that
you cause to come before the said A B, on the premises,
in the county aforesaid, on the day of twenty good
and lawful men of the body of your county, above the age
of twenty-one, and who are in no wise of kin to the said C
D, or E F, to make a jury of the county to inquire of,
and try said forcible entry and detainer, or forcible and
unlawful detainer. Given under the hand and seal of the
said AB, the day of in the year of our Lord 18
JOHN COKE, J. P. [Seal.]
By the 8th section of said act, it is required that the said jus¬
tice shall issue a summons to the party complained against, in
the words, or to the effect following; that is to say:
justices of the peace.
147
A summons to the party complained against.
State of Tennessee ) To the Sheriff of
County. 5 County, Greeting:
We command you to summon E F, to appear before
.T C ,.one of the Justices of the Peace in and for said coun¬
ty, at the house of on the day of.( to answer to,
and make defence against the complaint of C D, of a for¬
cible entry and detainer, (or if detainer only, then say,
&c.) made by the said E F, into the messuage, or upon
the lands of the Said C D, in the county aforesaid, and
have you then and there this precept, with a return of your
proceedings thereon. Given under the hand and seal of
the said J C, the day of in the year of our Lord
18—."
JOHN COKE, J. P. [Seal.]
I acknowledge myself the above plaintiff's security in
the sum of five hundred dollars, for prosecuting the above
summons tvith effect, or payment of all costs and damages
Jd the defendant on failure thereof. Witness my hand
and seal, the 2nd day of May 1837.
H. PLUGMUTTON, [Seal.]
The act requires the summons to be served upon the party
against whom the complaint is made, or a copy left at his usu¬
al place of abode, six days before the day of appearance. When
the party appears he may plead, "not guilty," or that "he has
been three years in quiet possession, and his estate therein not
ended 8tc." whicih shall constitute an issue between the parties.
Each party, on the trial, has the right to challenge four jurors,
and the jurors returned to try the complaint, are required to
Jake the following oath, to be administered by the justice..
148
FORM BOOK.
Form of Juror's Oath.
You do swear, (or affirm,) that you ivill well and tru¬
ly try this issue joined between C Dy and E jF, and a true
verdict give according to evidenced''
The 13:h section of sai l act, requires the jury to return their
*veriiict in the following fprra :
Verdict of the jury*
uAt a court of inquiry held before J C, a justice of
the peace within and for said county of upon the —
day of——»in the year of our Lord IS—, the jury tipon
their oaths, do find that the land or tenements aforesaid
bounded, (or described) as follows, as in the complaint,
upon the day of —in the year of our Lord-^
was in the lawful and rightful possession of the said
C D, and that the said E F, did upon the same day,
unlawfully, with force and arms, and with strong hand,
enter forcibly upon the same, (or being lawfully upon the
same^ did unlawfully with force and strong hand, expel
and drive out the said C V>7) and that he doth still
continue wrongfully to detain the possession from, him the
said iG D. Wherefore the jury find upon their oaths
aforesaid, that the said C D, ought to have restitution
thereof without delay."
(To be signed by the jurors.)
justices of the peace.
149
The justice shall then issue a writ of restitution in the form
following:
Writ of Restitution.
State of Tennessee, ) To the Sheriff of said coun-
County, $ ty: greeting.
"Whereas, at a court of inquiry of forcible entry and de¬
tainer, (or forcible and unlawful detainer,) holden in the
county of II — upon the — day of in the year of our
Lord before J C, a justice cf the peace for th^
said county of R—, the jurors empannelled and sworn by
the said justice, and returning their verdict in writing,
signed by each of them, that E F, was upon the —day
of—in the rightful possession of a certain messuage or
tract of land, (as in the verdict returned,) and that, &.c-
(as in the verdict) whereupon it is considered by the said
justice that the said C D, should have restitution of the
same. We therefore command you, that you take with
you the force of the county, if necessary, and cause the
said C D, to have the peaceable restitution of the same,
and make return of this writ with your doings thereon,
within twenty days next coming. Witness the said justice
aforesaid, the — day of — in the year of our Lord 18—.
(To be signed by the justice.)
The foregoing forms under the head of ''Forcible Entry and
Detainer," &c. with the exception of the form of the complaint,
are given in the very language of the statute; and the authors
are not responsible for the crudeness, or want of perspecuitv,
of expression, found under this and almost every other head in
our statute books.
If the jury find against the complainant, the justice shall re¬
cord their verdict and give judgment for cost, and issue execu-
13*
150
FORM BOOK.
tim». The justice may postpone the trial,, not exceeding fifteen?
days, on the payment of cost, by the party making the appli-
tion.
By the 20th section of the act, the estate or merits of the ti¬
tle shall in no wise be inquired into on the trial; but where the
person in possession has had the uninterrupted occupation, or
been in quiet possession for the space of three whole years to
gether, immediately preceding the complaint, and whose estate
therein is not ended or determined, he may plead the same to
the complaint.
In the case of Pettyjohn vs. Akers, 6 Yer. R. 448, the Su¬
preme Court decided that in an action of forcible entry and de¬
tainer, or forcible detainer, between occupants of public lands,
under the act of 1829, ch. 22, sec. 11, the title of the party
turned out of possession, cannot be disputed or inquired into.
It is provided by the second and third sections of the act of
1822, ch. 85, that the defendant shall have twenty days to re¬
move his cause (by certiorari) from the judgment of the ma¬
gistrate trying it, and that it shall not be lawful for such magis¬
trate to issue a writ of restitution in favor of the complainant,
within twenty days after the rendition of the judgment.
In the case of Clements vs. Esther Clinton, Mar, and Yer.
R. 193, the Supreme Court decided that twenty jurors are to be
summoned in proceedings before a justice of the peace, for
forcible entries and detainers; but twelve, or any number be¬
tween that and twenty, will be sufficient to try the issue. The
description of the premises alleged to be forcibly entered and
detained, must have such certainty, that the jury summoned
may know where to meet, and the sheriff know of what he is to
give restitution. The plaintiff must show what estate or inte¬
rest he has in the land, and it must appear by the sheriff's return
when the summons was executed on the defendant, so that it
may appear that he had six days previous notice; without which
no jury can be sworn.
In the case of Trousdale vs. Darnell, 6 Yer. R. 43}, the-
court decided that actual violence need not be proved to givo
effect to the third section of the act of 1821, ch. 14, but under
CONSTABLES.
151
this section, if the demandant has the right to the possession,
nnd it is the duty of the tenant to deliver it, and notice has been
given, and possession refused, the law will imply force. It is
not necessary to entitle the landlord to his remedy, that he
should commit a breach of the peace to get possession, or com¬
pel the tenant to commit it in holding him out. And if the par¬
ty agree to surrender the premises when demanded, and upon
demand made refuse to surrender the possession, this will be a
wilful and unlawful holding, under the 5th section of the act of
1821—anjl in this case he will not be entitled to notice to quit.
See 9 Yer. R. 817, the case of Childress and fVyley vs. Black
and Wife.
CONSTABLES.
By the provisions of the act of 1741, ch. 5, section 3, "every
constable elected and sworn, is invested with, and may exe¬
cute the same power and authority, to all intents and purpo¬
ses, as the constables within the kingdom of England are by
law invested." Therefore he may, without warrant, arrest any
one for a breach of the peace, committed in his view, and carry
him before a Justilce of the Peace. And in case of felony, ac¬
tually committed, or a dangerous wounding, whereby felony
is likely to ensue, he may upon probable suspicion arrest the
felon; and for this purpose is authorized (as upon a justice's
warrant) to break open doors, and even to kill the felon if he
cannot otherwise be taken; and if he and his assistants be killed
in attempting such arrests, it is murder in all concerned. 4
Blackstone's Com. 292; 2 Hale's Pleas of the Crown, 89,92.
Murder in the first degree, and all offences punishable by
confinement in the Penitentiary of this State, are, by the Penal
Code of 1829, section I, declared to be felonies.
152
FORM BOOS.
Con: tablets bond for the faithful discharge of the duties of
his office fyc.
State of Tennessee, )
Davidson County. $
We, A B, C D and E F, all of the county of David¬
son, are held and firmly bound unto N. C. Governor of
the State of Tennessee, for the time being, and bis suc¬
cessors in office, in the penal sum of one thousand dollars;
for which payment well and truly to be made, we bind
ourselves, our heirs, executors, and administrators, joLt-
ly and severally, firmly by these presents. Given under
our hands and seals the 1st day of May 1837.
Whereas, the above bound A B, was on the 22nd day
of April 1837, duly and legally elected in the 10th dis¬
trict, to serve as Constable, in the county aforesaid, as ap¬
pears from the certificate of P. Campbell, sheriff of «aid
county: Now the condition of this obligation is such
that ff the said A B, shall faithfully discharge the
duties of his office, and shall well and truly pay over
and account for all moneys by him collected by virtue of
his office, to the person, or persons authorized to receive
the same, then this obligation to be void, otherwise to re¬
main in full force and virtue.
A. B. (Seal.)
C. D. (Seal.)
E. F. (Seal.)
Constables.
153
A Constables return on a bail warrant.
Executed on the loth day of April 1837, and tail taken
for the appearance of defendant before John Coke EJsqr.
,at his office in Nashville, on the 20th of this instj
E F, ^Constable.
A Constable's return on a common warrant or summons
against two.
Summoned C D, one of the defendants, to appear be¬
fore John Cuke Esq. at his own house in Davidson coun¬
ty, on Saturday next. E F, the other defendant is not to
be found in my couuty* This 15th, April 1837-
G„ H, Constable-
The act of 1824, ch. 17, sec. 1, provides that, "wienever the
body of any debtor shall be taken in execution on any final
pracess issued by any of the courts of record in this State, (or
from a Justice of the Peace, 5.h section,) it shall be the duty of
the officer serving such process, to take bond with sufficient se¬
curity, if tendered, for the appearance of such debtor at the
next circuit court ofthe county in which he resides, then and
there to make payment of the monies called for in saidprocess^
or to take the oath of insolvency, or make a surrender of
proverly, as prescribed by the laws of this State.'*
154
form book..
Bond given by a debtor whose body has been taken by or
ca. sa. under the provisions of the above recited act.
State of Tennessee, )
Davidson County. y
We C D, E F, and G H, are held and firmly bound
unto A B, in the sum of one hundred and thirty dollars,
for the faithful payment of which sum, we bind ourselves
jointly and severally, firmly by these presents. Given
under our hands and seals, the 15th day of April 183.7.
Whereas, an execution was issued and placed into the
hands of Duke Job, a constable of the county aforesaid
against the body of the said C D, on the 5th day of
April 1837, to satisfy a judgment for the sutp of sixty-five
dollars debt and damages, and two dollars sixty-two and a
half cents costs, which the said A B obtained against the
said C D, before John Coke, a Justice of the Peace for
said county, on the 1st day of March 1837; and the body
of the said C D, having been arrested on said execution,
by the said Luke Job constable, &c. Now, if the said
C D, shall make his personal appearance at the next term
ol our circuit court, to be held for the county aforesaid, at
the court house in Nashville, on the Monday in
1837, then and there uto make payment of the monies
called for in said execution, or to take the oath of insol¬
vency, or to make a surrender of his property, as prescri¬
bed by the laws of this State," then the above obligation to
be void, otherwise to remain in full force and virtue.
Signed, sealed and acknowledged ) CD. [Seal.]
before me, .> E F. [Seal. |
LUKE JOB, Constable. S GH. [Seal.],
Constables,
155
The words in Italics in the above bond, are in the very lan¬
guage of the statute. In the cases of Matthews and Alder*
son vs. Weeden and Duren. 4 Yerger's R. 166. The
Supreme Court decided, that where bond and security are gi¬
ven under the act of 1824, ch. 17, the record must show that
the defendant either paid the debt, surrendered his property, or
took the oath of insolvency. If this does not appear, judgment
against ^the defendant and his securities is proper. And in
the case of Mclntire vs. IValford, 4 Yerger's R. 592, the court
say, that the bond taken upon executing a ca sa, to appear and
render a schedule of property, pay the debt, or take the oath of
insolvency, &c, must recite the ca sa, and the parties to the
judgment, or it cannot be enforced.
Form of a notice to a Constable or other officer that a mo¬
tion will be made at court for judgment against Irirn.
State of Tennessee, i
County. )
To A B, Constable of said county. Please take no¬
tice, that at the next term of our Circuit Court, to be held
for the county of Davidson, at the court house in Nash¬
ville, I shall, on Wednesday the third day of said Term,
move the court for judgment against you, and your secu*
rities, for monies collected by you for me, or which you
have failed to collect according to law, on the following
notes and accounts placed in your hands in«my favor for
collection, to wit: One note executed by E F, to my¬
self for the sum of one hundred dollars, and due the first
day of January 1S37, with a credit thereon of twenty dol¬
lars; one do. drawn by G H, and made payable to
myself, for sixty dollars, and due 1st day of November
156
FORM BOOK
1S36; and one account on J. J.' for thirty dollars, due
first day of January last past, &c. [here set out all the
notes and accounts, or executions placed in his hands]
when and where you can attend Bnd defend said motion if
you think proper. This 16th day of April 1S37.
C. D.
In the case of Baxter vs. Marsh and others, 1 Yefger's P.
460, the Supreme Court of this State decided that, upon a mo¬
tion against a constable and his securities, for failing to pay
over the money collected by him, a notice to the constable
ofthe intended tnotiort, was sufficient to authorize a judgment
against him and his securities. If the njotion be not made at the
first term after the delinquency happens, as required by the act
of 1801, ch. 7, sec. 5, it is necessary to s^ve notice, otherwise
not. Cook's R. 267; 1 Yerger's R. 460. Same point, 8 Yer
ger's R. 158, in the case of Hopson vs Hoge and Lester.
Where a constable gave a receipt in these words: "Received
from Land G, for collection, one note on G H C, for forty-
five dollars, due 1st of Nov., 1832, which I promise t > collector
return according to law;" Held, that thi3 wao an undertakirg
as agent of the owners of the note, to use all lawful means to
collect the same, and that the constable was bound to take" out
a warrant and execution upon the judgment, and if by his neg¬
ligence the money be lost, he will be liable. In this cage, the
court say, that if a constable receive a note for collection, with¬
out any express undertaking, it will be implied that he under¬
takes to procure the issuance of the warrant and of the execu¬
tion, as' a means by which to collect the money. Lee and
Groves vs. Hurdeway, 6 Yerg. R. 502, [1834.]
It is provided by the act of 1835, ch. 17, sec. 4, that "if apy
officer into whbse hands an execution may come, which has been
issued by a Justice of the Peace, shall fail to make return within
thirty days, the plaintiff may on motion before said justice, take
judgment against him and his securities for the* amount due in
the execution, with twelve and a half per centum damages for
constables.
157
such failure: Provided, the plaintiff, his agent or attorney, give
to the constable or returning officer, five days notice at least of
the time and place of said motion, &c." The act of 1801, ch.
7, sec. 5, requires the constable or other returning officer, to ren¬
der the money within thirty da'ys after the expiration of the stay,
unless by his return it shall appear that no property can be
found to satisfy the debt and costs, &c.
DELIVERY BOND.
Bond for the delivery af property levied on by a Consta¬
ble or cither officer.
State of Tennessee, )
County. $
We C D, and E F, are held and firmly bound unto A
B, in the sum of one hundred and thirty dollars, for the
faithful payment of which sum, we bind ourselves jointly
and severally, firmly by these presents. Given under our
hands and seals, the 15th day of April, 1837.^ Whereas,
an execution was issued and placed in the hands of Luke
Job, a constable of the county aforesaid, to satisfy a judg¬
ment which the said A B, obtained against the said C D,
before John Coke, a justice of the peace for said county,
on the 1st day of March, 1837, for the sum of sixty-five
dollars debt and damages, and two dollars sixty-two and a
half cents costs; and whereas, the said Luke Job, consta¬
ble, has levied said execution, on one cow and calf of the
value of twenty dollars, on one feather bed of the value of
fifteen dollars and on ten barrels of corn of the value of
twenty dollars, taken as the property of the said C D.
15S
form book.
Now, if the said property, above described, shall be de¬
livered to the said officer, to be sold at the market house
ill the town of Nashville, on the 3d day of May next, or if
the debt and costs mentioned in said execution shall be
paid to the said officer on or before that day, then this obli¬
gation to be void, otherwise to remain in full force and vir¬
tue.
C D, (Seal.)
E F, (Seal,)
Signed, sealed and acknowledged ^
before me )
LUKE JOB, Conftable.
The Supreme Court decided in the case of Martin vs. En¬
gland, 5 Yer. R. 318, that an officer taking a delivery bond, is
not authorized to stipulate in the bond, for any particular hour
of the day when the property is to be delivered. If the bond
contain a condition that the property shall be delivered at 12
o'clock of the day of sale, it cannot be returned forfeited, if the
property be delivered at the place appointed after that time, be¬
fore sunset, and while there are bidders remaining. The law
only required to be delivered in a reasonable time, to enable
the officer to sell.
Form of a garnishment [on aw execution placed in [the
hands of a constable or other officer, j
State of Tennessee,) m ~ rt , .,
county. \To G ■"> °f said couniy-
Whereas, an execution has been placed in my hands, is¬
sued on a judgment which A B, obtained against C I), on
on the 5th day of April, 1837, before John Coke, a jus-
constables.
159
tice of the peace for said county, for the sum of twenty
dollars debt and damages, and one dollar costs: I therefore
summon you to appear before the said John Coke Esq.
at his own house in said county, on the 22nd day of this
instant, then and there to answer on oath, what you are in¬
debted to the said C D, and what effects you had in your
hands, belonging to the said C D, at the time of serving
this garnishment, and what debts or effects of the said C
D, are in the hands of any other person, and what person
to your knowledge or belief. Given under my hand and
seal, the 15th day of April, 1837.
HENRY FANGS, Constable, (Seal.)
An exact copy of the garnishment, should be left with the
garnishee.
In the case of Ann Hogshead, Ex'x, vs. Caruth, Adm?v, fyc
5 Yer. R. 227. it was decided that the clerk of a court had no
power or authority to issue a garnishee summons. The sum¬
mons must be issued by the sheriff or other officer having the ex
ecutionin his hands, as required by the acts of 1794, 1811, and
1815. And the sheriff or other officer, has rib power tojis-
sue the garnishment, until he has an execution in his hands.
No judgment can be entered against a garnishee, until a
judgment is recovered against the original defendant. Seawell
vs. Murphree, Copke's R, 478.
Form of a bond to indemnify a constable or other officer
for levying on and selling disputed property.
State of Tennessee, ^
County. >
We, A B, E F, and G H, jointly and severally ac-
160
FORM BOOK.
knowledge ourselves indebted to Henry Fangs, a const&~
ble, in the penal sum of one hundred and thirty dollars;
but to be void on condition, that the said A B, shall well
and truly indemnify and keep harmless, the said Henry
Fangs from all damages and costs which he may sustain,
in consequence of levying upon and selling a certain black
gelding, as the property of one C D, the title to*which is
disputed, to satisfy an execution issued by John Coke, a
justice of the peace for said county, (or from the January
term of Davidson circuit court, as the < a e may 'J»e,) in
favor of the said A B, against the said U D, for the sum
of sixty-five dollars debt ahd damag-c, and two dollars
costs. Given under our hands and seals, the 15th day of
April, 1837. A B. (Seal.)
E F, (Seal.)
G H, (Seal.)
Signed, sealed and acknowledged (>
to me, 5
HENRY FANGS, Constable.
The following are the fees allowed by the laws of this
State to constables.
For attending on the court, for each day, $1 00
For executing a warrant, 50
For every subpoena, 05
For every execution or attachment, 50
For whipping any person by order of court, or (
of a justice of the peace, ^
For every bail bond, 12A
Constables. 161
Pot commissions on all sums by them collected, 1
and no more, on executions issued by justices >
of the peace, four per cent. )
For keeping each horse, mule or jack, per day
For each head of cattle
For each hog or sheep,
For executing a subpoena on a witness to prove
a deed or other instrument, to be paid by the
party at the time of presenting it to the of¬
ficer to execute,
By the third section of the act of 1806, ch. 6, it is provided,
that no constable or sheriff shall take or receive the fees on ex¬
ecutions usually called the levying fees, unless such levy has
actually been made. And it is enacted by the 2nd section of
the act of 1323, ch. 40, that it shall be the duty of the consta¬
ble or sheriff, who shall serve or return a warrant, to receive
the amount of the principal, interest and eosts, without com¬
missions, if tendered before the stay of execution shall have ex¬
pired,
14*
4
12£
3
1
25
part nr.
CHAPTER I.
SHERIFFS.
A digest or synopsis of the acts of the General Assem*
hlyof this State, relative to the powers, duties and respon¬
sibilities of a sheriff.
A sheriff, before he enters upon the duties of his office,
is required to take an oath, and to enter into bond with
two or more securities, payable to the Governor and his
successor in office, in the penalty of $12,500. He is
liable to a penalty of $125, for refusing to accept and ex¬
ecute the office; but if he be willing to execute the same,
and cannot give security, then he shall not incur the pe¬
nalty.
He shall execute and return all writs and other process
to him directed, if such process be delivered to him twen¬
ty days before court, under the penalty of $125, unless
he can show sufficient cause for failing to do so. He shall
not return "not found" upon any writ, unless he shall have
been at the house or place of abode of the defendant, and
for every false return he shall forfeit and pay $125.
He shall mark on each process which comes to his
hands, the day on which he receives it, and on neglecting
sheriff's.
163
so to do, shall forfeit and pay the sum of $125, to be re¬
covered by any person who will sue for the same.
He shall return all writs and other process, (except
subpoenas for witnesses returnable instanter,) the first day
of the term to which the same shall be returnable,;and shall
be executed at least ten days before the beginning of such
term. And if any original or mesne process shall be ta¬
ken out within ten days before the beginning of any term,
such process shall be made returnable to the next term
succeeding that which shall commence within ten days af¬
ter taking out such process, and not otherwise; but any
process issued in any criminal prosecution may be made
returnable to any day of the term, &c.
He shall not execute any writ or process on Sunday,
unless there be endorsed on the back of such process by
the clerk or justice issuing the same, that it was obtained
on the oath of the plaintiff, stating^ that the defendant was
removing or about to remove himself or property beyond
the jurisdiction of the court (or justice as the case may.be)
on the Sabbath. Nor shall he execute any writ or process
upon any person attending a muster, an election, or upon
any person summoned and attending as a witness or juror,
unless the same be issued against a person for treason, fe¬
lony, riot, rescous, breach of the peace, or upon an escape
out of prison or custody.
He shall not take any obligation from any person in his
custody, or concerning any matter or thing relative to his
office, otherwise than payable to himself as sheriff; unless
where such obligation shall be by law particularly and ex¬
pressly directed to be taken otherwise.
If he return upon any writ of fieri facias or venditioni
164
FORM BOOK.
exponas, that "he has levied the debt, damages and costs,M
and has not paid the same; or if he shall return upon any-
writ of capias ad satisfaciendum or attachment, that he has
taken the body of the defendant, and has him ready to
satisfy the money or other matter mentioned in such writ,
and shall have received the money or other matter from
the defendant, or suffered him to escape with the consent
of such sheriff; then, in either of the said cases, the cre¬
ditor may, upon motion, obtain judgment in the court
from whence the writ issued, against such sheriff, for the
money or other matter mentioned in such writ, provided
the sheriff have ten days previous noice of such motion.
If he fail to make return of any execution or ca. sa.
which may come to his hands, on or before the second
day of the term to which the same is made returnable;
judgment on motion may be rendered against him and his
securities, for the whole amount of the money and costs
mentioned in such writ.
Where he levies an execution upon land, he shall give
the defendant, (if he be in the actual possession and oc¬
cupation of the land Ivvied upon,) twenty days written no¬
tice of the time and place of sale, and state in the notice
that the execution is levied on said land, &c. All lands
to be sold by him, which are directed to be advertised in
any Gazette, shall be advertised in the Gazette of the
county where the land lies, if there be one; if not, then in
the Gazette nearest to where the land lies.
All land levied on by him shall be advertised and publish¬
ed for sale at least three different times, the first of which
publications shall be made at least 40 days> previous to the
pale; and he shall in such publication, mention the names
SHERIFFS.
165
of the plaintiff and defendant, and describe the land par¬
ticularly. And whenever he shall levy an execution upon
lands, negroes, horses or other property, he shall advertise
the time and place of sale at four places in his county, one
df which shall be at the door of the court house, another
in the most public place in the neighborhood' of^the party
whose property is to be sold, and at the other two most
public place? in his county.
He shall not bid nor purchase at his own sales. If he
purchase at his own sale, he shall be liable to indictment
and removal from office. Nor shall he expose to sale any
property, real or personal, on which he has levied, before
10 o'clock in the forenoori, nor afterrmset of the day ad¬
vertised for sale.
"Where the defendant in any civil suit is surrendere J by
the security to the sheriff, then he shall take other Lail, 'f
offerc d.
In all cases where a person has been bound over for hij
appearance, to answer arty charge exhibited against him h)
the State, he may be Surrendered by his secuiities to the
sheriff, who may take other bail, to be bound m the follow¬
ing sums. If1 for any crime above petit larceny, the piin-
cipal in the sum of $ 1000, and the securities each $500;
for petit larceny $500, and securities each $250. lie
shall commit the persons failing to give bail; but the sheriff
is not bound to accept such surrender, unless "at the court
house, or at his usual place of residence.
Where a person is bound as special bail, and such per^
son shall deliver to the sheriff, a copy of the hail bond,
certified, the sheriff, upon the application of the bail, shall
arrest the principal if in the coujjty, and deliver him (o
166
FORM BOOK*
such bail;. Provided, said bail shall accompany the sheriff
and be ready to receive the person, arrested.
Wherever the accused in any criminal offence bailable
by law, has. been committed to jail for want of security, it
shall and may be lawful for the sheriff to take bail for the
defendant's appearance, to the court having cognizance of
the offence, under the rules and regulations prescribed by
law.
When he goes out of office, not having executed deeds
for land sold by him while in office, his successor shall
make out and execute such deeds.
I
He shall be allowed two years after going out of office,
to close all his unsettled business, and shall have power to
collect and enforce payment, &c. but he shall not do any
new business.
Hp shall not be allowedjfor his ex officio services more
than fifty dollars for each year he may serve as sheriff,
He shall pay over all surplus money to the owner of the
property sold, where he sells the property for more than
sufficient to satisfy the execution levied on. said property:
and where he is intrusted with the collection of debts, un¬
der the jurisdiction of a Justice of the Peace, and shall
receive such money, whether before the service of the
warrant, rendition pf the judgment, or after, or on execu¬
tion, he shall be liable for such moneys by judgment on
motion. Where executions are issued from a court of re¬
cord, and placed in his hands, on which the fees of the
clerk or other costs may be due and unpaid, and he fails
either to pay over the money collected on said executions,
or to make return of the same according to law, the clerk
may move the court for judgment against him for the
SHERIFFS.
167
amount of his fees and other costs.
Where an execution is placed in his hands, and he shall
return that the money is made, or the execution satisfied,
the person entitled to the money, may at any time within
three years after the end of the term of the court to which
the execution was returned, or within three years from the
return of the execution, should judgment be had before a
Justice of the Peace, commence suit against him and his
securities, if citizens of this State, and four years if the
sheriff or his securities should reside out of the State.
He shall not be allowed to appoint more than two dep¬
uties, unless he finds it absolutely necessary to appoint
an additional one. But he shall not be prohibited from
making special deputations on urgent occasions, and dep¬
utations for the purpose of holding elections.
He shall not be compelled to levy an execution on
property, the title to which is disputed, unless the plain¬
tiff will indemnify him, by giving bond and security, &c.;
and should he afterwards be sued by the rightful owner of
such property, and a recovery, be had against him, he may
upon motion obtain judgment against the obligor and his
securities for the full amount of the judgment recovered
against him.
Where the counterpart of a writ, or ca. sa. comes to his
hands from another county, than the one for which he is
sheriff, and the defendent refuses to give security, he may
confine him in the jail of the county where he is
sheriff, and make return thereof upon the process to the
court from whence it issued.
He shall convey every person convicted in his county,
of any crime punishable by imprisonment in the Peniten-
168
FORM BOOK.
tiary, to said Penitentiary; and upon neglecting or failing
to do so, he shall forfeit all claims to compensation for
such removal, and shall be liable to be proceeded against
for a misdemeanor in office.
Where he has paid money or become liable to pay mon¬
ey for the default or misconduct of his deputy, he may
recover judgment by motion against such deputy and his
securities, for the full amount of the money thus paid, or
which he is liable to pay, by giving said deputy ten
days notice of the time of making such motion.
In all sales of land for taxes, if no person will bid the
amount of tax, costs and charges, due thereon, he shall
cry the same off to the trustees for common schools.
He shall cause the court house to be kept in order for
the accommodation of the courts, and furnish water and
fire when necessary; the expenses for doing which shall
be a county charge, and shall be allowed and paid out of
the county treasury.
If he open the ticket or ballot, of any voter at any elec¬
tion, and examine and read the same at the time he re¬
ceives it, and before he puts it in the box, he shall be
guilty of a misdemeanor in office, and upon conviction
shall be fined not less than twenty-five dollars, and be re¬
moved from office. ,
If he collect taxes not on the tax list, and fail to ac¬
count for the same, he shall forfeit four times the amount.
He shall be the collector of the state and county taxes,
and shall give bond with two or more securities to the
Governor and his successors in office, in double the amount
of the taxes to be collected for the state: and he shall also
give bond with two or more securities to the chairman of
SHERIFFS.
169
she county court, in the sum of double the amount of the
county taxes to be collected, conditioned for the collec¬
tion and payment to the trustee of the county, of all,taxes
by him collected, &c. He shall give twenty days previ¬
ous notice of the time and place in each justice's district,
when and where he will attend and receive taxes. And in
case there shall not be any goods and chattels, on which
he can make distress for public taxes, he shall make re¬
port thereof to the circuit court of his county, at the first
term in each year, for the preceding year or years; and
when an order of sale shall issne to him, it shall be his du¬
ty to advertise in some newspaper, when and where he will
sell the tract or tracts of land for taxes mentioned in said
order, which publication shall be made forty days previous
to the sale.
He shall pay the public taxes collected in his county
into the hands of the treasurer authorized to receive the
same, or to such other person as he may direct, on or be¬
fore the 1st day of October in each and every year.
He shall give a receipt to each and every person or per¬
sons when they pay their taxes, expressing in the receipt
the amount received; and if he shall collect more money
than is directed by law, he shall be guilty of a misde¬
meanor in office, and subject to a fine not exceeding one
hundred dollars.
He shall not levy an execution on any crop growing or
attached to the freehold, before the 15th day of November
next, after such crop is matured.
He shall hold and certify elections for Governor, Mem¬
bers of Congress, and of the Legislature, Justices of the
Peace, Constables, Clerks of the circuit and county
J5
170
FORM BOOK.
courts, Sheriff, county Trustee, Register and Military Of¬
ficers: and he shall be exempt From military duty, except
in cases of insurrection and invasion.
The actof 1835, ch. 19, provides by way of amendment
to theseveral acts in relation to the duties of sheriffs, "that
it any sheriff or other officer shall fail to make due and
piuper return of any execution issued from any court of
rec ri m this state and to him directed and received by
him, rr shall fail to pay over, the money on any execution
after the same is or shall be returned satisfied, in whole or
in part, or make a false or insufficient return, such sheriff
or other officer and his securities shall be liable to a mo¬
tion in the circuit court of the county frbm which the ex¬
ecution issued, and judgment shall be rendered against
them for the amount due upon said execution, or for the
amount t ollected by such sheriff, with interest thereon,
together with twelve and a half per cent, damages: Provi¬
ded, that if the sheriff or other officer resides in any other
qpunty than that from-which the execution issued, he shall
have ten days notice of such motion, or if the motion be
made at a different term than the one to which such exe¬
cution shall be returnable, such sheriff &e. shall have ten
days written notice of the motion about to be made against
him and'his securities: and Provided further, that in each
of the*f negoing cases, the sheriff, or t>ther officer failing
to male due return of any execution to him directed and
received by him, (r failing to pay over the money due on
the execution after the same has been returned satisfied, in
whole or in part, or making a false or insufficient return
thereof, he may be proceeded against in the court to which
the Same is returnable or has been returned, for a con-
sheriffs.
171
tempt for such failure or breach of duty: and Provided fur¬
ther, that in all cases the said sheriff, or other officer, by
proof of having placed the said process in the regular mail
at the court house of the county to which the execution
is directed with the proper return thereon, sealed up in
presence of the post master in due time, directed to the
clerk of the court of the county from which the same issu¬
ed, shall be exonerated from all such liability as is impo¬
sed by this act for failing to make due return thereof,"
Form of Sheriff's bond, for the performance of the duties
of his office, as required by the act of 1777, ch. 8.
State of Tennessee, )
Davidson County. )
We, P Campbell, A B and C D, jointly and severally
acknowledge ourselves indebted to N C, Governor of the
State of Tennessee for the time being, and his successor
in office, in the penal sum of twelve thousand five hundred
dollars; for which payment well and truly to be made, we
bind ourselves, our heirs, executors and administrators,
jointly and severally, firmly by these presents; sealed with
our seals and dated the 5th day of May 1837.
The condition of the above obligation is such, that
whereas, the above bounden P. Campbell is constituted
and appointed sheriff of Davidson county, by a commission
from the Governor, under the seal of the State, dated the
day of 1837, last past; if therefore the said P.
Campbell shall well and truly execute, and due return
make of all process and precepts to him directed, and pay
172
form book.
and satisfy all fees and sums of money by him received
or levied by virtue of any process in the proper office, by
which the same by the tenor thereof ought to be paid, or
to the person or persons to whom the same shall be due,
his., her or their executors, administrators, attorneys or
agents, and in alt things well, truly and faithfully execute
the said office of sheriff, during his continuance therein,
then the above obligation to be void; otherwise to remain
in full force and effect.
P. C. £Seal.]
A. B. [Seal.]
C. D. [Seal.]
Form of Sheriffs bond for the collection of the State taxes
as required by the act of 1835, 15.
State of Tennessee, )
Davidson County. )
We, P. Campbell, A B, and C D, jointly and several*
ly acknowledge ourselves indebted to JM. C. Governor of
the State of Tennessee Jfor the time being, and his succes¬
sors in office, in the penal sum of twenty thousand dollars;
for which payment well and truly to be made, we bind
ourselves, our heirs, executors and administrators, jointly
and severally, firmly by these presents; sealed with our
seals and dated the 5th day of May 1837.
Whereas, the said P. Campbell is constituted and ap¬
pointed sheriff and collector of the State and county taxes
for Davidson county, by a commission from the Governor
under the seal of the State, dated the day of ■
SHERIFFS.
173
1337. Now if the said P. Campbell shall well and tru¬
ly collect and pay to the Treasurer of the State, all taxes
by him collected, or which ought to have been collected,
on or befofe the first Monday in October in each and eve¬
ry year in which he shall collect the taxes, then the above
obligation to be void, otherwise to remain in. full force
and virtue. P. C. (seal.)
A B. (seal )
C. D. (seal,)
The act requires the above bond to be given in double the
amount of the State taxes to be collected.. The sheriff should
also give a bond in double the amount of' the county taxes to be
collected, payable to the Chairman of the county court and his
successors in office, and conditioned for the collection and pay¬
ment to the Trustee of the county, of all taxes by him collected,
or which should have been collected, &c. as in the above form.
The form of this bond will be the same as that given for the col"
lection of the State taxes.
Form of Sheriff's report of lands, when the owners there-
of have no goods cr chattels in the county.
State of Tennessee, ) To the Honor able the Circuit
Davidson County. y ourt.
"I, P. Campbell, sheriff and collector of the public taxes
for the county of Davidson, do hereby report to the court
the following tracts of land, town lots and parts of town
lotsj as having been given in for the taxes for the year
1837, that the taxes thereon remain du^ and unpaid, and
the respective owners or claimants thereof have no goods
ot chattels within my county on which I can distrain for
15*
174
FORM BOOtfrf
said taxes, to wit: A B, one tract of iand acres, lying
in civil district, No. valued at, $ , taxes—i—-
C D, one towne lot No. in town, valued at
$ taxes j civil district, No. " This —
day of 18—.
P. CAMPBELL, Sheriff.
Form oj order of sale.
^Whereas, P. Campbell, sheriff ond collector of the
public taxes for the county of Davidson, reported to court
the following tracts of land, town lots and parts of town
lots, as having been returned for the taxes for the year
1837, and that the taxes thereon remain due and unpaid,,
that the respective owners or claimants thereof have no
goods and chattels within his county on which he can dis¬
train for said taxes, to wit; A B, one tract of land, lying
m civil disteict, No. , containing acres, clerk's
fees $ cents, sheriff 1s fees $ cents, printer's
fees $ cents. C D, one town lot or part of town
lot No. ■ in town, valued at , taxes .
Whereupon it is considered by the court, that judgment
be, and it is hereby entered against the aforesaid tract or
tracts of land, (or town lot or town lots, as the case may
be,) in the name of the State for the sum annexed to
each, being the amount of taxes, costs and charges due
severally thereon for the year 1837; and it is ordered by
the court that said several tracts of land, town lots or
parts of town lots, or so much thereof as shall be suffi¬
cient of each of them to satisfy the taxes, costs and
SHERIFFS;
175
charges annexed to them severally , b&sold as the law di¬
rects,"
The 7th section of the act of 1885, ch. 15, directs "that it
shall be the duty of the clerk within ten days after the adjourn
ment of the court, to make out a copy of the sheriff's report,
together with the order of the court therein, which shall consti¬
tute the process on which all lands and lots shall be sold for the
public taxes."
Sheriff's return on a summons, where it is executed on one
of the dfendants^-and the others not found.
Executed on A B, the 28th day of April, 1837, the
C D, and E F, the other defendants, are not to be found
in my county»
P. CAMPBELL, Shff.
In the case of Slattan vs. Johnson, 4 Hay. R. 200, the Su- .
preme Court decided that non est inventus, (that is, "he is not
to be found in my county,") implies that the residence of the
defendant is in the county, and that the sheriff has been at his
place of abode, anil if these are not fadts, the return is a false one,
and subjects the sheriff to a false return. He should return the
truth of the case, either that the defendant is not an inhabitant
of the county, or that he resides in another county, specifying
it. Non est inventus cannot be returned until the sheriff has
been at the place of abode of the defendant.
Form of Sheriff s return on a capias ad respondendum.
Executed this writ on the said C D, and a bail bond ta-
176
FORM BOOK.
keiTJbr the defendant's appearance at our next circuit cotlff
this 10th day of June, 1837.
P. CAMPBELL, Shff*
Sheriff's return on a scirefacias>.
Executed this writ on the defendant C D, by reading
and making its contents known to him, this 10th day of
July, 1837. P. CAMPBELL, Shff.
The act of lSOT, ch. 12, provides that the reading and making
known the contents of a. scire facias to the person on whom to
be executed, shall be deemed a sufficient execution thereof*
Form of sheriff's return on an execution which has been
levied.
Levied this execution on one bedstead, bed and furni¬
ture", six chairs, one cow and calf, ten sheep and one se¬
cretary, this 10th day of June, 1837.
P. CAMPBELL, Shff.
Sold the property mentioned in said levy for the sum of
one hundred and ten dollars, first giving notice of the time
and place of sale as required by law. July 20th, 1837*
P. CAMPBELL, Shff,
sheriffs.
177
For the form of the bond to be given by a debtor whose
body has been taken by virtue of a ca. sa. See title
"Constables."'
DELIVERY BOND.
See title "Constables."
Form of a garnishment, on an execution issued from court
and placed in the hands of a sheriff.
State of Tennessee, } m n rr * -i
County $ To G IT. oj said county.
Whereas, an execution has been placed in my hands, is¬
sued on a judgment which A B, obtained against C D. in
our Honorable Circuit Court at the March term thereof,
1837, for the sum of five hundred dollars debt and da¬
mages, and ten dollars twenty-five cents costs: I therefore
summon you to appear at our next circuit court, to be
held for the county of Wilson, at the court house in the
town of Lebanon, on the first Monday in July next, with'
in the first four days of said term, then and there to an¬
swer on oath, what you are indebted to the said C D, and
what effects you had in your hands, belonging to the said
CD, at the time of serving this garnishment, and what
debts or effects are in the hands of any other person, and
what person to your knowledge or belief. Given under
my hand and seal, the 15th day of May, 183G.
SCROUGHGER SKIN WEASEL, Shff.
pf Wilson county.
178
form book.
See title "Constables," for form of bond to indem¬
nify a sheriff for selling disputed property.
Fbrm of a bond to keep the prison bounds.
State of Tennessee, )
County. •)
We, 0 D, E F, and G H, acknowledge ourselves in¬
debted to Scroughger Skinweasel, Sheriff of Wilson coun¬
ty, in the sum of sixty-two dollars; but to be void on con
dition that the said C D, who has been taken into the cus¬
tody of the said sheriff, and committed to prison on a ca¬
pias ad satisfaciendum, in favor of A B, for the sum of
$30 debt and damages,. &nd one dollar costs, shall remain
and continue within the prison bounds of said county, and
not escape out of the same, before he shall have paid said
debt, damages and costs, or be otherwise discharged ac
cording to law. Given under our hands and seals, the 5th
day of May, 1837. C I), (seal.)
E F, (seal.)
G H, (seal.)
Assignment of the bend by the sheriff, as required by the act
of 1759, ch. 14.
"I, Scroughger Skinweasel, sheriff of Wilson county,
do hereby assign the within obligation and condition to the
said A B, the plaintiff therein named, to be sued for ac¬
cording to tbe statutes :n such cases made and provided.
In witness whereof I have hereunto set my hand and seal,
the 5th day of May, 1837."
SCROUGHGER SKINWEASEL, Stiff*
shdriffs.
179
"The prison rules shall extend to and include the whole of
the bounds of the county-town or corporation in each county,
and if the bounds of any town shall be enlarged by any act of
Assembly, the prison rules shall also be enlarged and embrace
the limits of the whole town as enlarged." Act of 1825. ch. 83
Form, of a bail bond taken by the sheriff\ on arrest by vir¬
tue of a capias, in a civil action.
State of Tennessee, )
County. 5
We, C D, E F, and G H, acknowledge ourselves in¬
debted to P. Campbell, sheriff of Davidson county, in
the sum of two thousand dollars; but to be void on condi¬
tion that the said C D, who has been arrested by the said
P. Gampbell, by virtue of a writ of capias ad responden¬
dum, to answer the complaint of A B, uof a plea of tres¬
pass on the case, to his damage one thousand dollars f' shall
make his personal appearance before the honorable judge
of the circuit court, to be held for said county of David¬
son, at the court house in Nashville, on the second Mon¬
day in September next, and ilif condemned in the aclionr
will satisfy the judgment of the court, or render himself
to prisonGiven under our hands and seals, the 20th
day of July, 1837. C D, (seal.)
E F, (seal.)
G H, (seal.)
Signed, sealed and acknowledged to me, )
P. CAMPBELL; Shff. J
"I, P. Campbell, sheriff of Dav'dson county, do here¬
by assign the within obligation and, condition to A B,
180
form book
the plaintiff therein named, his executors and administra*
tors, to he sued for according to the statutes in such cases
mad# and provided. In witness whereof I have hereunto
set my hand and seal, the 15th day of May, 1837."
P. CAMPBELL, Shff.
The act of 1794, ch. 1, see. 11, directs the sheciff to take two
sufficient securities from the person or persons arrested on a
capias ad respondendum, in double the sum for which such per¬
son or1 persons shall be held in arrest, &c. In the case of
Johnson's assignee vs. Williams, 2 Tenn. R. 178, (1812,) the
Supreme Court decided that this act was directory, and that one
person is sufficient, if he be good.
In the case of Harvey vs. Goodman, 9 Yer, R. 273, (1836,)
the Supreme Court decided, that the condition of a bail bone],
simply to appear and answer the action, and not depart without
leave of the court, 8tc. is insufficient—the condition ought to
be, " That the defendant -will appear, and if condemned in the
action, will satisfy the judgment of the court, or rtnder himself
to prison."
Form of a recognizance taken by the sheriff on arresting
an individual to answer a State prosecution.
State; of Tennessee, )
County. )
"We, C D, EF, and G H, jointly and severally ac¬
knowledge ourselves indebted to the State of Tennessee,
that is to say, the said C D, in the sum. of five hundred
dollars, and the said E F, and G H, in the sum of two
hundred and fifty dollars each, to be levied of our respective
goods and chattels, lands and tenements; but to be void on
condition, that the said C D, shall appear before the judge
SHERIFFS.
181
of our circuit court, to be held for the county of David¬
son, at the court house in the town of Nashville, the
second Monday in September next, on the first Wednes¬
day of said term, (if that be State's day,) then and there
to answer the State of Tennessee on a charge of open and
notorious lewdness, (larceny, gaming, or whatever the
charge may be) and abide by the sentence of the court,
or surrender himself to prison, and not depart thence with¬
out leave first had and obtained. Given under our hands
and seals, the 10th of June, 1837. C D, (seal.)
E F, (seal.)
G H, (seal.)
Signed sealed and acknowledged ?
before me, )
P. CAMPBELL, Shff.
The following are thefees allowed by the laws of this Stale,
to Sheriffs.
For calling every action in court $0 04
For serving a copy of a notice to take deposi- ?
tions, to be taxed as costs, )
For serving an injunction, 1 00
For every arreet, or for executing a summons, ^
when the same is the leading process in the > 1 00
suit, )
For returning a capias (<ar summons) non est in- }
ventus, )
For every bail bond. 25
For serving a copy- of a declaration in ejectment 1 00
16
25
182 FORM BOOK.
For serving a subpoena for witnesses, for every j}
person named therein, and making return /
thereof, )
For returning a subpoena, "not found," for eve- ?
ry person named therein, )
For serving scire facias, 62}
For returning a scire facias "not found," 25
For every commitment and releasement, each 50
For serving a subpoena in Equity, . 62 J
For summoning a witness to a will, or other ) ^
writing, )
For summoning and impannelling a jury in each £ j9l
case, where a jury shall be sworn, )
For executing every condemned person, includ- \ ^ ^
ing every necessary expense and service, $
Where a special venire shall issue by order of )
court, for summoning each juror, )
For attending on the premises on a special venire ^ Q ^
facias, for each day, } ~
For summoning a jury on forcible entry and de- I
tainer, or forcible detainer, executing writ and > 5 00
another services, )
For making return of a writ of partition or writ ? 3 qq
of dower, and all necessary services therein, ) 0
For attending on the premises per day, 2 00
For serving a writ of possession of land, 1 00
For sesving and attending any person, on a ha- ) -
leas corpus, per day, )
For levying an attachment, 1 00
If further trouble by the removal of goods, &c.
to be taxed by the court,
For summoning each garnishee 62f
SHERIFFS.
183
For executing a warrant of distress or execu- ? j qo
tion against the body, $
For levying an execution upon any property, ? ^ QO
real or personnl, 5
For collecting money on execution, for the first } a on
hundred, $
For every hundred dollars over one hundred, ? 3 qo
and not exceeding three hundred, )
For every hundred dollars over three hundred, 2 00
For collecting the county, state and other taxes, )
per centum. )
For distress in collecting taxes, where such she- *
riff shall have to go to the house, or may 'have
distrained the property of the person liable to
pay such taxes after the time shall have elaps¬
ed for payment as heretofore established by
law,
When any person charged or convicted of any
criminal offence shall he removed from one
county to another, for trial, or for safe keep¬
ing in any prison, the sheriff or other officer
having the care or Custody of such criminal,
shall be allowed as full compensation for his
services, in removing such criminal, at the rate
of ten cents per mile going to and return¬
ing from, and the guards employed by the she¬
riff, not exceeding two, shall be allowed at the
rate of six cents per mile, going to and
returning from, as full compensation for their
services.
For keeping each head of horses, mules, or ^
jacks, levied on by him, per day, )
184
FORM BOOK.
For each head of cattle, per day, 03
For each head of hogs or sheep, per day, 01
For carrying a convict to the penitentiary, for J.
every twenty-five miles he may necessarily I ^ 00
travel, in going to and returning from the (
Penitentiary, for himself, J
For each guard, 1 50
For each convict, 1 00
For the amount paid by the sheriff for himself,
guards and convict or convicts, for ferriages
tolls in transporting such convicts to the Pen¬
itentiary; und should any sheriff convey more
than one convict to the Penitentiary at the
same time, he shall not for himself, be enti¬
tled to more than two dollars for every twen¬
ty-five miles allowed him as above.
The respective sheriffs shall be entitled to receive the
same fees for any services in courts of Chancery, as for
the like services for proceedings at law, and be entitled to
the same remedy for recovery of them.
•V/Xh the case of Swingle vs., Boyler, 1 Tenn. R, 226, (1807,)
the Supreme Court decided that in an action against a sheriff
for.seljing real property to satisfy an execution, when personal
property could have been had, it is necessary for the plaintiff to
support the following positions, 1st. That there was personal
property on which the levy could have been made; 2nd, That
it was known to the sheriff, and 3rd, That it was accessible to
him. The onus probandi lies on the plaintiff. The law au¬
thorizes the levying upon real property as well as personal at
the same time, though she personal property must first be sold.
SHERIFFS.
185
In the eases of Hogshead, Exe'x. vs. Caruth, Ex'r, &c. 5
Yer. R. 227, and Camp vs. Laird, 6 Yer. R. 246, the Supreme
Court decided that a levy upon personal property to an amount
sufficient to satisfy the debt, is a discharge of the debt and a sa¬
tisfaction of the execution. ' But a levy upon real estate of val¬
ue sufficient to satisfy the execution is no discharge, and if it
be not sold, an alias ji. fa. may issue, which may be levied up¬
on personal property. Same point, 8 Yer. R. 297. 8 Yer. R.
158.
The levy of an execution on lands must show the location of
the lands levied upon, to a. reasonable certainty; but the levy
will be sufficiently certain, if it describes it in such a manner
as to distinguish it from other tracts owned by the same person
or others. Vance's heirs vs. M'Nairy, 8 Yer. R. 171. Pound
vs. Pullon, 3 Yer. R. 888, (1882.)
In the case of Shaw vs. Smith, 9 Yer. R. 97, (1836,) the Su¬
preme Court decided, that where slaves at an execution sale,
are knocked off to A, and they are delivered to the purchaser,
or he has power to take them into possesion, with the consent of
the sheriff, the sheriff, in such case, may maintain an action
against the purchaser to recover the amount of the bid.
A bill of sale from the sheriff is not necessary to transfer a ti¬
tle to slaves sold at execution sale.
In sheriff's sales there is no warranty expressed or implied as
to title.
In a suit against a purchaser of slaves at execution sale, to
i*ecover the amount bid, evidence by the defendant, showing the
title of the slaves was not in the execution debtor, and that
therefore no title was transferred to him is irrelevant and inad¬
missible.
Where judgment was rendered on motion against a sher¬
iff for the penalty of one hundred and twenty-five dollars,
given by the act of 1777, chapter 8, section 7, for failing to re¬
turn a capias ad respondendum,: It was held to be erronrous and
irregular, because it did not appear by the judgment, that the
party making the motion, and in whose favor judgment was gi-
16*
186
FORM BOOK
ven, was the plaintiff in the writ; and because, it did not ap¬
pear the capias ad respondendum, was returnable to the court
in which the motion was made. Atkins vs. Murphey, 9 Yer.
R. 264, (1836,)
In the cases of Scott and M'Brdom vs. M'Gavock and Gor¬
don's lessee, 1 Yer. R. 469, and Noe's lessee vs. Purchapile,
5 Yer, R. 215, our Court of Errors and Appeals, decided that
the Sheriff, (after the levy upon land in the actual possession of
the defendant at the time of the levy,) must give the defendant
twenty days' notice, in writing, of the time and place of sale as
required by the act of 1799, ch. 14, sec. 1, or the sale will be
void. But where a Sheriff's deed recited "that he legally ad¬
vertised and made known the time and place of sale, &c." it
was decided to be prima facie evidence that the defendant in
possession had the notice required by the act—and that in such
case, the defendant must prove that he had no notice.
Where a tract of land was, by the request of the defendant
who resided thereon, levied on by the sheriff, and no notice of
the time and place of sale was given to him by the sheriff, as re¬
quired by the act of 1799: It was held, that the request to levy
by the defendant, was not a waiver of his right to the notice of
the time and place of sale, and that the sale of the land was
void, Mitchell's lessee vs. Lype, 8 Yer. R. 179, (1835.)
In the case of Nelson vs. Curnmings, 1 Ten. R. 436, (1809,)
the court decided that D S, according to universal practice, sig¬
nifying deputy sheriff, which sufficiently designate his official
capacity. .And in the case of Montgomery vs. Scantling, 2
Yer. R. 317, the < ourt decided that a deputy sheriff cannot depu¬
tise am r to execute a writ—and that a deputation by the sher¬
iff must no filled up by hiin with the name of the person who
executes the writ.
Chattels must be actually seized by the sheriff and shown to
the bidders on the day of sale: not so as to the sale of lands,
for they are incapable of seizure aud removal to the place of
sale. A sale by the sheriff after sun set, at the instance of the
defendant in the execution, cannot be urged by him as a fraud
detrimental to his rights. The act of Assembly upon this sub-
SHERIFFS.
187
jcct was made for the benefit of defendants, and its provisions
may be dispensed with to suit their convenience. Russel vs.
Stinton and others, 3 Hay. R. 10, (1816.)
PART IV.
CHAPTER I.
feXECUTORS AND ADMINISTRATORS.
The form of a bond required to be given by an adminis¬
trator upon obtaining letters of administration, as re¬
quired by the 5th section of the act of 1715, ch. 58.
State of Tennessee, )
County. $
"We, Shanks Possumhunter, C D, and E F, are held
and firmly bound unto Newton Cannon, Governor of the
State aforesaid, for the time being, and his successors in
office in the penal sum of ten thousand dollars; for which
payment well and truly to be made, we bind ourselves, our
heirs, executors and administrators, jointly and severally,
firmly by these presents, sealed with our seals, and dated
the 10th day of May, 1837.
<cThe condition of the above obligatipn is such, that if
the above bounden Shanks Possumhunter, administrator
of all and singular the goods and chattels, rights and cre¬
dits of C D, deceased, do make, or cause to be made, a
EXECUTORS AND ADMINISTRATORS. 189
true and perfect inventory of all and singular the goods
and chattels, rights and credits of the said dec* ased, which
have or shall come to the hands, possession or knowledge
of him, the said Shanks Possumhunter, or into the hands
and possession 6f any other person or persons for him,
and the same so made, do exhibit or cause to be exhibit¬
ed to the next county court, where orders for administra¬
tion passed; and the Same goods, chattels and credits, and
all other, the goods, chattels and credits of the said de¬
ceased, at the time if his death, or which at any time af¬
ter shall come to the hands or possession of the said
Shanks Possumhunter, or into the hands or possession of
any other person or persons for him, do well and, truly ad¬
minister according to law; and further, do make or cause
to be made, a true and just accpunt of his sgid administra¬
tion within two years after the date of these presents, and
all the rest and the residue of said goods, chattels and cre¬
dits which shall be found remaining upon the said admin¬
istrator's account, the same being first examined and al¬
lowed by the county court, shall deliver and pay unto such
j/erson or persons respectively as the same shall be due
unto, pursuant to law; and if it shall appear, that any last
will and testament was made by the deceased, and the exe¬
cutor or executors therein named, do exhibit the same into
court, making request to have it allowed and approved ac¬
cordingly, if the said Possumhunter above bound being
thereinto required, do render and deliver the said letters
of administration, (approbation of such testament being
first had and made,) in the said court; then this obligation
to be void and of none effect, or else to remain in full
190
form book,
force and virtue." Given under our hands and seals, the
13th day of May, 1837.
SHANKS POSSUMHUNTER, (seal.]
C D, (seal.)
E F, (seal.)
Form of letters testamentary.
State of Tennessee )
•Davidson County, ss. )
Whereas., it a jpears to the court here, that Ichabod
Crane, late of said county, is dead, and hath made his last
will and testament in writing, in which he has appointed
Israel Sleepyhollow, executor to the same, which will
hath been exhibited into court, and proved as the
hw directs: It is therefore ordered by the said court, that
letters testamentary, of all and singular the goods and
chattels, rights and credits of the said deceased, issue to
the said Israel Sleepyhollow, he, having been qualified
agreeably to law.
These are therefore to empower you, the said Israel
kSleepyhollow, to enter into and upon all and singular the
goods and chattels, rights and credits, of the said Ichabod
Crane, deceased, and the same into your possession take,
wdieresoever the same may be found, and a true and per¬
fect inventory thereof tb make and return into our ensuing
court, and the just debts of the said Ichabod Crane, de¬
ceased, to pay, and also well and truly to pay and deliver
all the legacies contained and specified in the said testa¬
ment, as far as the said goods, chattels and credits will
EXECUTORS AND ADMINISTRATORS.
191
thereunto extend, and the law charges. Witness, Smith
Criddle, Clerk of our said court, at office, the first Mon¬
day of May, 1837, and in the sixty-first year of our In¬
dependence.
SMITH CRIDDLE, Clerk.
Form of Letters of Administration.
STATE OF TE™ES«E, ) &ssionS) 1S37.
Whereas, it appears to the court, that Ichabod Crane,
is dead, and having made no will or testament, and appli¬
cation being made by Israel Sleepyhollow, to have letters
of administration granted tp him on the estate of the said
Ichabod Crane, deceased, he having given bond and se¬
curity, as by law in such case is required: the court there¬
fore order that he have letters accordingly.
These are therefore to authorize and empower you, the
said Israel Sleepyhollow, to enter into, and upon all and
singular, the goods and chattels, rights and credits of the
said Ichabod Crane, deceased; and the same into your pos¬
session take, wheresoever to be found in this State, and a
true and perfect inventory thereof make, and return into
our ensuing county court on oath; and all the just debts of
the intestate pay so far as the said estate will amount or ex¬
tend; t|ie residue thereof deliver to those who have aright
thereto by law. Herein fail not. Witness, Smith Crid¬
dle, Clerk of our said court, at office, the first Monday
in May, 1837.
SMITH CRIDDLE, Clerk.
192
form book.
Form ojan inventory to be returned by an exe:utor or ad'
ministrator, as required by the act of 1723, c. 10.
State of Tennessee, ) To the Worshipful County
Davidson County. ) Court, June Sessions 1837.
I, A B, administrator [or executur as the case may
be,] of the goods and chattels, rights and credits of C I)
deceased, have drawn a just, true and perfect inventory
of all the goods and chattels, rights and credits of the de¬
ceased, which have come to my hands, possession or
knowledge, or into the hands and possession of any other
person for me, which inventory is herewith exhibited to
court: three slaves, to wit, Jack about thirty-five years
old; Celia, a woman, about thirty-seven years of age,
and Bob, a boy, about thirteen years of age. One ac¬
count on E F, for the sum of fifty dollars. One note
drawn by G H, on the first day of October 1836, and
made payable to the deceased, on the first day of Janua¬
ry 1837, for the sum of three hundred dollars. Six head
of horses, ten head of sheep, fifty head of hogs, eight
beds and furniture. [Here set out with particularity, the
whole of the personal property.] This day of June
1837.
A B, Admr.
Form of a refunding bond taken by an executor or admin-
istrator from a distributee.
State of Tennessee, )
Davidson County. )
We, C D, E F and G H, acknowledge ourselves in-
EXECUTORS AND ADMINISTRATORS. 193
debted to E S Hall, chairman of the county court for said
county for the time being, and his successors in office, in
the sum of one thousand dollars: for which'payment well
and truly to be made, we bind ourselves, our heirs, exec¬
utors and administrators, jointly and severally, firmly by
these presents. Sealed with our seals, and dated the 13th
May 1837.
Whereas, the said C D, has this day received from A
B, administrator [or executor,] of L M, deceased, the
sum of five hundred dollars, his distributive share of the
personal estate of the said L M deceased: Now if the said
C D, shall well and truly refund and pay his ratable part
of any debt or debts truly owing by the deceased, and
which may hereafter be sued for and recovered, or other¬
wise duly made appear, then the above obligation to be
void, otherwise to remain in full force and effect.
C D. [Seal.]
E F. [Seal.]
G H. [Seal.]
The bonds taken by an executor or administrator from a ay
person or persons entitled to distribution out of any estate, are
required to be returned to the county court, at the next succeed¬
ing court after such bonds are taken, there to be lodged in thp
office of said court.
In the case of Cartwrigkt v the Cartwrights, 4 Haywood's
R. 134, the supreme court decided that executors and adminis¬
trators are liable at the end of two years to pay over to the
legatees, unless hindered from getting in the assets by some
cause not to be overcome by their industry. When such cause
exists, they ought to allege and prove it, otherwise, they will
be liable to the legatees. And in the cases of Stephenson v
Stephenson, and others, 3. Haywood's R. 123, and Bryant v
17
194
form book.
Puekett, Adm'r. fyc. S, Haywood's R. 252, the court say, that
the act of 1789, ch. 23, directs that "no executor or adminis¬
trator, shall hereafter take, hold, or retain in his hands more of
the deceased's estate than amounts to his necessary charges and
disbursements, and such debts as he shall legally pay."
Charges and disbursements, are unavoidable payments
of money, without which the estate of the deceased cannot be
collected and disposed of for the benefit of the creditors. Fu¬
neral charges, charges for the probate of wills,, or granting let¬
ters of administration, recording of inventories, accounts of
sales and the charges of suits legally brought for the benefit of
the estate, or of defending suits brought against them, and the
like, &c., but expenses in travelling and remaining at court,
and others of a similar nature are not allowed. »
The act of 1789, ch. 23, sec. 4, forms a bar to an action or
suit brought hy a creditor against an .administrator or executor
in two years, if such creditor is the resident of the State, and
three years if a resident of another state. But the act only be¬
gins to run from the time a cause of action has accrued, and
when there was an executor or administrator to be sued. Kelly
v Hooper's Ex'rs. 3 Yer. R. 395. Penn's Admr. v McLemort
and others, 3 Yer. R. 318.
CHAPTER II.
GUARDIANS.
Form of a guardian's bond.
State of Tennessee, ?
Davidson County. )
We, A B, C D and E F, are held and firmly boua.d
unto E S Hall, chairmsm of the county cCurt for the
GUARDIANS.
195
county aforesaid, and his successors in office, in the penal
sum of five thousand dollars, in trust, for the use and ben¬
efit of the children hereafter named, and committed to
the tuition of the said A B; for which payment well and
truly to be made, we bind ourselves, our heirs, executors
and administrators, jointly and severally, firmly by these
presents, sealed with our seals, and dated the 15th day of
May 1837.
The condition of the above obligation is such, that
whereas, the above bounden A B, is constituted and ap¬
pointed Guardian to Sarah Hart, Jane Hart, and Ezekiel
Hart, minor orphans: Now, if the said A B, shall faith¬
fully execute his guardianship, by securing and improving
all the estate of the said Sarah, Jane and Ezekiel, that
shall come into his possession for the benefit of the said
minors until they shall arrive at full age, and shall also, at
the next county court, held for the county aforesaid, ex¬
hibit an account upon oath, of all the estate of said or¬
phans, which he shall have received into his hands or pos
session; and shall thereafter exhibit annually before the
justices of said Court, his account, and state of the prof¬
its and disbursements of the estate of said orphans upon
oath, as required by law, then this obligation to he void;
otherwise to remain ih full fprce and virtue.
A B. (Seal.)
C D. (Seal.)
E F. (Seal.)
196
form book.
Form of an Account exhibited upon oath by a Guardian
to the next court after his appointment.
State of Tennessee, 7 To the Worshipful county
County. ) court, June Sessions, 1837.
I, A B, Guardian of Sarah Hart, Jane Hart and Ez£-
kiel Hart, minor heirs of John Hart deceased, do hereby
report to your worships, an account of all the estate of
said minors, which has come to my hands or possession
as guardian, to wit:
One house and lot of ground in the City ot Nashville,
known and designated in the original plan of said city, as lot
No. eighty. Six slaves, to wit: Jim, about fifty years
old. Sylvia, about forty years old. Nancy, about twen¬
ty-five years of age. Heniy, about fourteen. Harvey
about ten, and Poll about six years old. Received from
the Administrator of the estate of said Jno. Hart deceas¬
ed in cash, one thousand dollars. This day of June
1837.
A B, Guardian, &c.
Form of Guardian's Report, required to be made annual¬
ly, of the profits and disbursement^ of his ward's estate.
State of Tennesee, ) To the Worshipful county
Davidson County. ) court January Sessions 1837.
1, A B, Guardian of Sarah, Jane and Ezekiel
Hart, minor heirs of John Hart deceased, do hereby re¬
port to your Worships an account current of the profits
tiUARBtANS.
19?
and disbursements of the estate of said minors, for the
year ending the* 1st day of January 1837.
A B, Guardian &c. to said Minors Dr.
To cash received from Paul Hoozer, for the
rent of the house and lot in the City of Nash¬
ville, known as lot No, 8, and belonging to
said minors $200 00
To cash received from H. Long for the hire
of Jim, 50 00
To cash received from D. Daniel for the hire
of Sylvia, 40 00
To cash received from S, Sydney for the hire
of Nancy, 60 00
To cash do. from John Spencer for the hire
of Henry, 25 00
To C Nance's note for the hire of Henry's) 1n
due 25th December, 1836. J
To James Apple, Daniel Apple, and N. I
Hogan's note for money loaned, and due > 1060 00
25th December, 1836. )
Disbursements, $1535 00
By this amount paid the clerk lor guardian bond $00 50
By this amount paid clerk for recording Inven¬
tory, 50
By this amount paid for receiving and record- \
ing an account current, exhibited as guardian, ^ L
By this amount paid Ichabod Crane for school¬
ing, 50 00'
By this amount paid Messrs. Sleepy hoi- )
low, & Co. for books, paper, ink, and quills, )
17#
198 FORM BOOK,
u " paid Messrs-. Harvey, & Co. for mer¬
chandise, 150 0$
$261 37i
The whole amount with which I am
chargeable is, $1535 00
Total amount of disbursements 261 37£
Amount due said wards $1273 62
This day of January 1837.
A B, Guardian, &c
PART V.
CHAPTER I.
OATHS.
Form of an oath upon the Bible or the new Testament
"You solemnly swear upon the holy Evangelists of Al¬
mighty God, that the testimony you shall give in the cause
now on trial, wherein A B is plaintiff, and C D is defen¬
dant, shall be the truth, the whole truth, and nothing, but
the truth; So help you God.
If the person to be sWorn shall be conscientiously scrupulous
of taking a book oath in the manner pointed out by the act of
1777, he shall be excused from laying his hand upon or touching
the holy Gospels; but shall stand with his right hand lifted up
towards Heaven and shall take the following oath.
" You, A B, do appeal to God as a witness of the
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 known, that the testimony you shall give
in the cause now on trial, wherein A B is plaintiff, and
C D is defendant, shall be the truth, the whole truth and
nothing but the truth. So help you God*"
200
FORM BOOK
Form of the oath to be taken by each member of the Gen-
eral Assembly, as required by the Constitution of this
State
"You do solemnly swear that you will support the
constitution of this State, and of the United States; and
you do also swear, that as a member of this General As¬
sembly, you will, in all appointments, vote without favour,
affection, partiality or prejudice; and that you will not
propose or assent to any bill, vote or resolution, which
shall appear to you injurious to the people, or consent te
any act or thing whatever, that shall have a tendency to
lessen or abridge their rights and privileges, as declared
by the Constitution of this State."
Form of the oath to be taken by a Judge of the Circuit
Court.
"You, A B, do solemnly swear, (or affirm,) that you
will support the Constitution of the United States, and
the Constitution of the State of Tennessee, and that you
will administer justice, without respect to persons, doing
equal right to the poor and to the rich; and that you will
faithfully and impartially discharge and perform all the
duties incumbent on you as a Circuit Judge, according to
the best of your skill and ability. So help you God.''''
OATHS.
201
Form of oath to be taken by the Judges of the Supreme
Court,
''You do solemnly swear that you will support the Con¬
stitution of the United States, and the Constitution of
the State of Tennessee, and that you will faithfully and
impartially discharge all the duties incumbent on you as a
judge of the Supreme Court, to the best of your skill and
ability. So help you God.
Form of the oath to be taken by a Justice of the Peace.
"You do solemnly swear that you will support the Con¬
stitution of the United States, and the Constitution of the
State of Tennessee; and that as a Justice of the Peace,
and a Justice of the County Court, in the county of Da¬
vidson, you will, in all things, do equal right to the poor
and to the rich to the best of your judgment, and accord¬
ing to the laws of the State; you will not privately or open-
ly, by yourself, or any other person, be of counsel in any
quarrel or suit depending before you; and you will hold
the county court of your county, as the statutes in that
case shall and may direct. The fines and amerceinents
that shall happen to be made, and the forfeitures that shall
be incurred, you will cause to be duly entered without
concealment. You will not wittingly or willingly take your¬
self, or by any other person for you, any fee, gift, gratu¬
ity or reward whatsoever, for any matter or thing by you
to be done, by virtue of your office, except such fees as
are or may be directed andlimietd by law: but well and
202
FORM BOOK.
truly, you will do your office of a justice of the peace, as
well within the county court as without. You will not
delay any person of common right by reason of any letter
or order from any person or persons in authority to you
directed, or for any other cause whatsoever; and if any
letter or order come to you contrary tcf law, you will
proceed to enforce the law, such letter or order notwith¬
standing. You will not direct or cause to be directed, any
warrant by you to be made to the parlies, but Will direct
all such warrants to the Sheriff or Constables of the coun¬
ty, or other officers of the State, or other indifferent per¬
sons to do execution thereof: and finally, in all things be¬
longing to your office, during your continuance therein,
you- will faithfully, truly and justly, according to the best
of your skill and judgment, do equal and impartial justice
to the public and to individuals. So help you God."
Form of oath to be taken by all officers, civil, military, ju¬
dicial and executive.
"You do solemnly swear on the Holy Evangelists of
Almighty God, that you have not given or accepted a
challenge, either written or verbal, to fight a duel, nor
have you fought one since the passage of an act passed in
the year eighteen hundred and seventeen, entitled "an act
more effectually to prohibit duelling," nor have you been
the second or bearer of a challenge for such purpose; and
that you will not fight a duel, or be the bearer of a chal¬
lenge, either written or verbal, for such purposes or act as
the second of both or either of the parties concerned, in a
OATHS 203
duel during your continuance in office. So help you
God."
Form of an oath to be taken by a Sheriff.
"You A B, do solemnly swear, that you will support
the constitution of the United States, and the constitu¬
tion of the State of Tennessee: and you do solemnly
swear, that you will execute the office of sheriff of Da¬
vidson county to the best of your knowledge and ability,
agreeably to law; and that you will not take, accept or re¬
ceive, directly or indirectly, any fee, gift, bribe, gratuity
or reward whatsoever, for returning any man to serve as ju¬
ror, or for making any false return on any process to you
directed. And you also swear that you have not given
any fee, gift, gratuity or reward, or other thing whatso¬
ever to any person or persons for his or their vote or in¬
terest, to procure you to be nominated to the said office;
nor will you hereafter give to any person or persons, such
fee, gift, gratuity or reward for having procured, or con¬
tributed to procure you to be nominated thereto.—So
help you God."
Form of Sheriffs oath for collecting taxes.
"You A B, do solemnly swear that you will faithfully
collect and account for all taxes for your county, or cause
the same to be done according to law, and to the best of
your judgment, and that you will use all lawful means in
234
FORM BOOK.
jour power to find out such property as may not have been
listed for taxation in your county, and that you will return
a list of property to the clerk of the county court:—So
help you God.
Form of an oath to be taken by a Constable.
"■You do solemnly swear that you will support the Con¬
stitution of the United States, and the Constitution of the
State of Tennessee; and that you will wrell and truly serve
the State of Tennessee, in the office of a constable: you
will see, and cause the peace of the state to be well and
"truly kept according to your power; you shall arrest all
such persons as in your sight shall ride pr go armed offen¬
sively, or shall connpit or make any riot, affray, or other
breach of the peace; you shall do your best endeavor
upPn complaint to you made to apprehend all felons and
rioters, or persons riotously assembled; and if any such
offenders shall make resistance with force, you shall make
hue and cry, and shall pursue them according to law; you
shall faithfully and without delay execute and return all law¬
ful precepts to you directed; you shall well and duly ac¬
cording to your knowledge, power and ability, do and ex¬
ecute all other things, belonging to the office of *1
ble so long as you shall continue in this offir
you God.
OATHS.
205
Form of an oath to be taken by the clerks of the different
courts in this State.
"You, A B, do swear that you will support the Con¬
stitution of the United States, and the Constitution of the
State of Tennessee; and that by yourself, or any other
person, you neither have given, nor will give to any per¬
son or persons whatsoever, any gratuity, gift, fee or re¬
ward in consideration of your appointment to the office of
clerk of the circuit court, (or the county court, as the
case may be,) nor have sold nor offered to sell, nor will
you sell or offer to sell, your interest in said office; you
also solemnly swear that you do not directly, nor indirect¬
ly, hold any other lucrative office in this State. And you
lo further swear that you will execute the office of clerk
nf said circuit court, without prejudice, favor, affection
or partiality, to the best of your skill and ability—So help
you God."
Each clerk shally previous to his rendering an account of
the public taxes, by him collected, take and subscribe the
following oath.
"I, A B, do solemnly swear, that the annexed state¬
ment contains a just and true account of all the public taxes
by me collected, which I am by law bound to pay into
the public treasury of the State, (or to the county trustee,
as the case may be,) up to the first day of September,
1837—So help me God."
18
206
FORM BOOK
Form of the oath to be taken by the Treasurer of the State.
"You do solemnly swear that you will support the Con¬
stitution of the United States, and the Constitution of the
State of Tennessee; and that you will faithfully execute
the office of treasurer agreeably to law, according to the
best of your skill and ability—-So help you'God."
Form of the oath to be taken by Governor of the State.
"You'do solemnly swear that you will support the Con¬
stitution of the United States, and the Constitution of the
State of Tennessee; and that you will faithfully execute
all the duties incumbent on you as Governor, according
to law and to the best of your skill and ability—So help
you God."
Form of Revenue Commissioner''s oath.
"You do solemnly swear that y^u have well and truly
taken in a list of all taxable property and polls that have
come to your knowledge in District No. , agreeably
to law and the instructions of the Comptroller of the Trea-'
sury, and that you have used all lawful ways and means
within your power to find out and list such property and
polls liable to taxation within said District, No ——, as
was not returned to you for taxation, and that all valuations
of property by you made, have been done faithfully, justly
and truly, according to the best of your skill and judgment,
OATHS.
207
and that you have done equal and impartial justice to the
public and to individuals—So help you God."
Form of an oath to be taken by an Administrator,
"You do solemnly swear that A B, to the best of your
knowledge and belief, died without making any will or
testament, and that you will well and truly administer all
and singular, the goods and chattels, rights and credits of
the intestate which have or shall come to your hands, pos¬
session or knowledge, or into the hands and possession of
any other person or persons for you; that you will return
to our ensuing county court a just, true and perfect inven¬
tory of all the goods and chattels of the deceased; and
that you will'make, or cause to be made, a true and just
account of your administration within.two years after the
date of your letters of administration: and all the rest and
residue of said goods, chattels and credits, which shall be
found remaining upon your account, you will deliver and
pay unto such person or persons respectively, as are enti¬
tled by law to receive the same—So help you God."
Form of Tobacco Inspectors oath.
"You swear that you will diligently and carefully exa¬
mine and view all tobacco brought to the place of inspec¬
tion where you are appointed inspector, and that not se¬
parately and apart from your fellow, but in his presence,
and that you will not receive or pass any tobacco that is
208
FORM BOOK.
not in your judgment sound, well conditioned, merchant¬
able and clear of trash, nor receive, pass or stamp, any to¬
bacco hogshead or casks of tobacco contrary to the true
intent and meaning of the acts of the General Assembly
in such cases made and provided, nor refuse any tobacco
that in your judgment is sound, well conditioned, merchant¬
able and clear of trash; but that you will in all things, faith¬
fully discharge your duty as inspector of tobacco, accord¬
ing to the best of your skill and jugdment, and accord¬
ing to the direction of said acts, without favcr, fear, affec¬
tion or partiality—So help you God."
The act of 1803, ch. 7, requires Inspectors of Cotton, to take
and subscribe in open court, the oath required to be taken by
Inspectors of Tobacco.
Form of a standard keeper's oatn.
"You do solemnly swear that you will not stamp or seal
any weights or measures but such as shall, as near as pos¬
sible, agree with the standard in your keeping; and that
you will in all respects truly and faithfully discharge the
trust reposed in you, to the best of your skill and judg¬
ment—So help you God."
Form of oath to be taken by jurors of view, for laying out
roads.
"You do solemnly swear that you will lay out the road
now directed to be laid out by the county court, to the
OAfHS-
209
greatest ease and advantage to the inhabitants, and with as
little prejudice to inclosures as may be, without favor or
affection, malice or prejudice, and to the best of yotir
skill and knowledge: So help you God
Form of the oath to be taken by an Insolvent Debtor, where
he has no visible estate, real or personal.
"You do solemnly swear upon the Holy Evangelists of
Almighty God, that you have not the worth of ten dollars
in any wordly goods or substance, either in debts owing
to you or otherwise, over and .above your wearing apparel^
working tools and arms for muster, and that you have not
at any time since your imprisonment or arrest, or before,
directly, or indirectly sold, assigned or otherwise dispo¬
sed of, or made over in trust for yourself or otherwise,
any part of your real or personal estate, whereby to have
or expect any benefit of profit to yourself, or to defraud
any of your creditors to whom you are indebted. Sd
help you God."
If the debtor, whose body has been arrested by virtue of any
mesne or final process, has any real or personal estate, and
wishes to deliver it up to his creditors, he should by petition to
eourt render an exact schedule of his estate, and the nature
thereof, and take the oath required by the act of 1811, ch. 24>
see. 3 The form of the oath is prescribed by the act.
18*
210
form book.
Form of oatk to be taken by a person suing or appealing in
forma pauperis.
Joun Weevileater, )
vs. >
Gripe Skinflint. )
I, John Weevileater, do solemnly swear, that owing t6
my poverty, I am not able to bear the expenses of the law
suit which I am about to commence, and that I am
justly entitled to a recovery, from the defendant or de¬
fendants, to the best of my belief; an amount within the ju¬
risdiction of the court, in which I am about to commencer
my said suit. So help me God.
JOHN WEEVILEATER.
Sworn to and subscribed before )
me, the 20th day of May, 1837. V
Cut Fourpence, Clerk. ;
Form of the affidavit to be made, to obtain the issuance of a
capias ad respondendum.
A. B. >
vs > Action of Debt.
C. D. )
In this case A B makes oath that his cause of action is
just, and that the defendant has removed, or is about to
remove his property beyond the jurisdiction of the court;
OATHS.
211
and that the facts alleged in this affidavit are true, ac¬
cording to his information and belief.
A. B.
Sworn to and subscribed before ~1
me, the 20th day of May 1837. >
E. B. Turner, Clerk. )
The act of 1831, ch. 40, section 5, provides that a capias ad
satisfaciendum shall in no case issue against the body of a debt¬
or, authorizing his imprisonment, unless the plaintiff, his agent
or attorney, will make an affidavit; lst. that the defendant is
about to remove his property beyond the jurisdiction of the
court or justice; or 2nd that he has removed his proporty be¬
yond the jurisdiction of the court or justice who rendered the
judgment; or 3rd,, that the defendant has fraudulently convey¬
ed his property to others to avoid the payment of his debts; or
4th, that he conceals it to avoid the payment of his debts; or
5th that the defendant has money in his possession or within
his control, sufficient to pay the demand or a good portion there-
ef, which he fraudulently Withholds from the payment of hi#
debts.
Form of Affidavit to bo made to premre the issuance of a
ca. sa. for the first cause mentioned in said act.
A. B. >
vs. >
C. D. )
In this case A B, the plaintiff, in the execution make*
eath, that according to the best of "his information and be¬
lief, C D, the defendant, is about to remove' his property
beyond the jurisdiction of the court. [ Or say, the
512
FORM BOOK.
fendant has fraudulently conveyed his property to others to
avoid the payment of his debts as the case may
Sworn to and sucscribed before )
me, the 20th May, 1837. /
R. B. Turner, Clerk. )
Form of an oath to be taken by an Attorney at law.
"You, A B, do swear that you will truly and honestly
demean yourselfin the practice of an attorney at law, to
the best of your skill and abilities. So help you God
Form of the oaths to be taken by retailers of spiritous li¬
quors.
State of Tennessee, )
Davidson County. )
I, Stuffle Paleface, do solemnly swear that I will not un¬
der this license I am about to obtain, retail any spiriulous li¬
quors to any slave, nor permit the same to be done, un¬
less by the permit of the master or overseer of the slave,
in writing. So help me God. I do further swear, that I
will not knowingly permit or allow any gaming for whiskey,
wine, money, or any other thing to drink, or eat, or other
valuable thing^ in the house in which I may retail spirits,
or on my premises, but that if any one should game or bet
to my knowledge, I will give information thereof to the
OATHS.
213
grand jury, at the next terra of the circuit court for ray
county. So help me God"
J. P.
Sworn to and subscribed before me, tjhis 20th May,
1337. SMITH CRIDDLE, Clerk of Da¬
vidson county court.
PART VI.
CHAPTER I.
TERMS OF CONVEYANCING.
Deed in fee simple, with general warranty.
This indenture made the 20th day of May in the year
one thousand eight hundred and thirty-seven, between A
B, of the one part and C D of the other part, both of the
county of Davidson, and State of Tennessee, wjtnesseth:
that the said A B, for and in consideration of the sum of
ane thousand dollars, to him in hand paid by the said C D>
the receipt whereof is hereby acknowledged, hath given.
granted, bargained and sold, and by these presents doth
give, grant, bargain and sell, alien release, convey and co-
affirm unto the said C D, his heirs and assigns, a certain
tract, piece, or parcel of land situate lying and being in
the county aforesaid, on the waters of Mill-creek,, and
which is lotted and located as follows, to wit; Beginning
&c. running thence &c., to the beginning, contain¬
ing, by estimation, one hundred acres. To have and to
hold the said tract, piece, or parcel of land, with all and
singular the improvements, hereditaments and appurtenan¬
ces, thereto belonging, or in any wise appertaining, to him,
the said C D, his heirs and assigns, to his and their only
proper use, benefit and behalf, forever.
DEEDS.
215
And the said A B, for himself, his heirs, executors and
administrators, doth covenant, promise and agree to and
with the said C D, his heirs and assigns, that the title
to the above described tract or parcel of land, he and they
will warrant and forever defend against the title, claim and
demand, of all and every person or persons whatsoever,
setting up title to the same either in law or equity. In
witness whereof, the said A B hath hereto set his hand
and seal, the day and year first above written.
A B, [seal.]
If only a special warranty is intended to be made, then
say, against the title, claim and demand of all and every
person or persons whatsoever, claiming title to the same,
by, through, or under him, the said A B, either in law
or equity.
In addition to the covenant of warranty of title, several
other covenants may be inserted in a deed, such as for
peaceable and quiet possessions tjiat the grantor has good
title to convey &c. which may be inserted immediately
after the covenant of warranty thus: "And the said A B,
for himself, his heirs, executors and administrators, doth
further covenant, promise and agree to, and with the said
C D, his heirs and assigns, that he and they, the said C
D, his heirs and assigns, shall'forever have, hold and en¬
joy the peaceable, quiet, and uninterrupted possession of
the lands and tenements herein before described and con¬
veyed, or intended so to be; will not let, molestation or
hindrance lawfully made, by any person or persons what¬
soever: And further, that he the said A B, hath good ti¬
tle to the lands and tenements aferesaitfj and is well ena-
216
FORM BOOK.
bled to convey the same against the title, claim or demand
of all and every person or persons whatsoever.
This latter covenant, thai the party hath good title to the
premises, is frequently one of much importance to grantees,
and many cases of flagrant wrong pass unredressed for want of
it; and it is therefore recommended, in all cases where there is
not actual pedis possession as it is called, or air actual encloi-
sure of the whole premises intended to be conveyed. The im¬
portance of this covenant is easily made manifest to any capacity
Suppose that A claims title to one hundred acres of land under
deed with general warranty from B, and that he has fifty acres
enclosed and in cultivation. No adverse claim is set up on the
part of (3, and found to be the better title, as to the whole of
the trect except that part which is in actual possession of B,
as to which he is protected by the operation of the statute of
limitations. C, of course, will recover and leave his writ of
possession, as to all the balance of the tract, still he cannot turn
B out as to the part in which he was so protected, and so mat¬
ters are at rest. Now, B cannot sue A on the warranty, be¬
cause he has not been turned out of possession, which, accord¬
ing to all authorities, isneeessary before such an action can be
maintained; neither can he cut timber, or repairs, nor enclose,
nor improve any ground not enclosed at the time of the judg¬
ment; because by so doing, he lays himself liable to an action
of trespass or of ejectment on the part of C. The injury done
to B, in such case, would have been entirely obviated by a cove¬
nant of the description spoken of, which would be broken by the
recovery of C, and an action would be to reimburse him in
damages.
Deed of Mortgage.
(As before, until you come to the end of the covenant
of warranty,) before condition, nevertheless, and this con-
DEEDS.
21
veyance is m.ade upon the terms and conditions hereafter
mentioned, that is to say; Whereas, the said A B is just¬
ly indebted to the saidC D in the sum of one thousand dol¬
lars, by bond under his hand and seal bearing equal date
with these presents, which will become due and payable
on the first day of January next, with interest from this
date, and is also further indebted to the said C D, in the
sum of five hundred dollars, by note of hand dated 10th
December last, and due and payable 25th December next
with interest from the date thereof; Now, this indenture
witnesseth, that if the said A B shall well and truly pay
and discharge said several sums of money, with all interest
already accrued, or hereafter to accrue thereon, at the
times when they shall respectively become due and paya¬
ble, then this conveyance, and every thing herein contain¬
ed, is to be void, and of no effect; otherwise[to remain in
full force and virtue, according to the true intent and mean¬
ing hereof.
In witness whereof &c.
A. B, [Seal.]
Deed in fee simple, with liberty to repurchase.
(As before, until you come to the end of the covenant
of warranty.) It is nevertheless expressly understood by
the parties, and the said A B makes this express reser¬
vation; that in case he, the said A B, his heirs, executors,
or administrators, shall, on or before the day 6f
next ensuing the date hereof, repay and refund to the said
iC D, his heirs, executors or administrators, the said sum
19
218
FORM BOOK
of—1—dollars, the amount of the consideration of the fore¬
going deed with inttrest thereon from the day of the date
hpreof, until the time of such repayment, then the forego¬
ing deed is to be void and of no effect; and the said C
D, his heirs, executors or administrators, shall thereupon
reconvey to the said A B, his heirs or assigns, the prem¬
ises aforesaid, and restore to him the possession thereof, in
as full and ample a manner, as if this conveyance had not
been made.
In witness whereof &c.
Deed in trust for the payment of debts.
(As before, until thelhcTof the covenant of warranty.)
This conveyance is nevertheless, made in trust, and for
the uses and purposes hereinafter mentioned and declar¬
ed, and none other, that is to say: Whereas, the said A
Bis justly indebted to E F, in the sum of one hundred
doi!a"s, by note dated 8th January 1S37, and due and
payable 4th September, 1837, with interest from the date,
and is further indebted to &c.. (mention all the debts inten¬
ded to be provided for, when due, and how secured,) and
is also indebted to divers other persons, to an amouut
^greater, as he apprehends, than he will be able to pay;
and being anxious to secure the said E F, and the other
creditors herein before enumerated, in the paymentof their
debts,1In preference to his other creditors; Now, therefore,
this indenture witnesseth, that in case the said A B shall
well and truly pay and satisfy the said several debts here-
*n before mentioned, as they shall severally become due
DEEDS.
219
and payable, then, this conveyance is to be void, and of
no effect; otherwise, the said C D shall take possession
of the property hereby conveyed, and after giving twenty
days notice of the time and place in some newspaper
printed in said county, shall expose the same to sale to
the highest bidder, for cash, and after having first paid the
expenses of such sale, and the other expenses attending
the execution of this trust, shall pay over the balance to
the creditors above mentioned, in the order in which they
are named; And the balance, if any, of said proceeds re¬
maining in his hands, he shall pay over t6 the said A B,
or to his order. It is expressly understood and agreed by
the parties, that until default be made in the payment of
said several sums of money, the said A B, Is to remain
in peaceable and undisturbed possession and enjoyment of
the property herein before mentioned and conveyed
In witness whereof, &c.
Sheriffs deed.
This indenture made the tenth day of June, one thou¬
sand eight hundred and thirty-seven, between A B, sheriff
of the county of Davidson, in the State of Tennessee, of
the one part, and C D of the other part, witnesseth;
Whereas, heretofore, to wit; on the tenth day of Janua¬
ry, in the year 1835, E F, recovered, in the circuit
court of said county of Davidson, a judgment against C
II, for two hundred and sixty dollars, debt and damages,
and fifteen dollars costs- of eeivjHipjMv- IvVich
execution, or writ oifieri facias was afterwards, to wit,
FORM BOOK
the 10th day of February, in the year 1S35, aforesaid,
sued out by the said E F, directed to the sheriff of saic
county of Davidson, whereby the said sheriff was com¬
manded, that of the goods and chattels, lands and tene¬
ments of the said G H, in his county, he should cause to
be made the debt, damages and bosts aforesaid, in satis¬
faction of said judgment, and which execution of wiit of
iicri facias was placed hi the hands of the said A B, sher¬
iff as aforesaid, on the 20th day 6f February in the year
1835. And whereas, afterwards, to wit, on the first day
of March in the yeat 1835, the said A B levied the
said execution on one hundred aCres of land, the proper¬
ty of the said G H, situate, lying and being on White's
creek, in Said county of Davidson, butted and bounded as
follows, to wit; (here insert the boundaries,) and after
having given forty days notice of the time and place of sale,
m the Republican and Gazette, a newspaper printed in
the town of Nashville, and twenty days notice in writing,
to the said G H, who was then in the possession of said
land, as required by law, the said A B, sheriff as afore-
saie, did, on the 15th day of April, in the year 1835, at
the court-house in Nashville, expose to public sale to the
highest bidder for cash, the said tract of land, so levied on
as aforesaid, when and where the same was fairly struck
off to the said C D, for the sum of two hundred and fifty
dollars, he being the highest and best bidder therefor, at
hat price; all of which, by reference tp the record of said
cause Jn said court remaining, and to the said writ of fieri
faaias, with the endorsements thereon, also in said court
f«lfy afloat large appear. Now, therefore,
.dm indenture witnesseth: that the said A B, sheriff as
MARRIAGE CONTRACT,
221
aforesaid, for and in consideration of the premises, and of
the said sum of two hundred and fifty dollars to him in
hands paid by the said C D, the receipt whereof is here¬
by acknowledged, and by virtue of the acts of the general
assembly of the State of Tennessee, in such case made
and provided, hath given, granted, bargained and sold;
and doth by these presents, give, grant, bargain and sell,
alien, release and convey, to the said A B, his heirs and
assigns, the said tract, piece or parcel of land, herein be¬
fore mentioned and particularly described, to have and to
hold the same, with all and singular the rights, privileges,
hereditaments and ap jurtenances, to the same belonging or
in any wise appertaining,- to the only proper use, benefit
and behoof of him, the said C D, his heirs and assigns
forever, in as full and ample a manner as the said A B, by
virtue of the proceedings aforesaid, and of his said office
of sheriff, is enabled to convey the same,
(Here insert a special warranty, and conclude.) In
witness whereof &c.
A. B, (seal.)
Marriage contract for securing the property of the wife
against creditors of the husband
This indenture, made &c. between A B, of the first
part, C D, of the second part, and E F, of the third part,
all of the county &c. Whereas, a marriage is contempla¬
ted shortly to be had and consummated, by and between
the said A B, and C D, parties of the first and second
parts to- these presents; and whereas, the said C D is em
Ill
FORM BOOR.
barrassed in his circumstances, and indebted to diver3
persons in large amounts; and whereas, the said parties are
desirous, that the property now owned by, and in posses¬
sion of the said A B, shall not become liable in law, to be
taken and appropriated in payment of debts due by the said
0 D, lo his creditors, but shall enure to her benefit, and
that of her said husband; this indenture therefore, witnes-
seth: That the said party of the first part, for and in con¬
sideration of the premises, and of the sum of one dollar to
her in handg paid by the said party of the third part, the
receipt whereof is hereby acknowledged, hath given, grant¬
ed, bargained and sold &c. (go on to describe the whole
of the property, reaf and personal, intended to be secur¬
ed, as in other deeds of conveyance, and continue to the
end of the covenant of warranty, if such covenant be deem¬
ed necessary or advisable.)
In trust nevertheless; and this conveyance is made for
the uses and purposes herein declared and set forth, that
is to say; that the said E F shall permit the said A B and
C D, to have and hold the undisturbed and peaceable pos¬
session, use and enjoyment of said property, real and per¬
sonal, during their joint lives, or during the continuance
of the matrimonial connexion between them, without mo¬
lestation or interference of any kind. And in case of the
death of the said C D, during the life of the said A B;
ir in case of the dissolution of the bonds of matrimony be¬
tween the said parties, the said E F shall thereupon re-
convey said property to the said A B, upon request, by
conveyance sufficient in law to divest him of all title deri¬
ved under this deed. And in case of the death of the said
A B, during the life of the said C D, then the said E F
LEASE.
223
wliall convey said property to the issue af the body of the
said A B, then living, and in default of such issue, to her
right heirs at law, and next of kin, according to the laws
of descent and of distribution, in force in this State, or to
such person or persons as the said A B, by writing, in
the nature of a last will and testament, attested by two
witnesses, shall designate and appoint. (Or according to
the agreement of the parties. In witness whereof &c.
Lease for years, on payments by instalments, and when a
forfeiture of the lease is to be the consequence of non-com-
pliance.
Article of agreement made and entered into the 27th
day of May, 1837, between A B of the one part, and C
D of the other part, both of &c. witnesseth; That the said
A B, for the consideration hereinafter Expressed, hath
leased, demised, and to farm let, to the said C D, for the
full space and term of five years, next ensuing the date
hereof, a certain house and lot situate, lying and being in
the town of Nashville, on Market Street, known and de¬
signated as part of lot No.—in the plan of said town, with
all the rights, privileges and immunities to the full, free
and uninterrupted occupation and enjoyment of said prop¬
erty appertaining.
And the said C D on his part doth covenant, promise
and agree that he, his heirs, executors administrators or
assigns, will pay in quarterly instalments, to the said A B,
his heirs, executors, administrators or assigns, the sum of
two hundred dollars per annnni, the first quarterly pay-
S24
FORM BOOK.
merit to be made at the end of three months from this day.
And he doth further agree, that in case of failure on lib
part, to make any quarterly payment, for one month after
the same shall by the terms of this lease have become due
and payable, the same having been demanded, that then
and in that case the lease itself, and all rights rnd benefits
accruing therefrom, shall be forfeited, and the said A B
may peaceably re-enter and take possession of the premi¬
ses.
In witness whereof, &c.
Power of attorney to sell and convey lands fyc.
Know all men by these presents, that I, A B, of the
County of Davidson and State of Tennessee, 'inve con¬
stituted and appointed, and do, by these pres Mts, consti¬
tute and appoint C D, of the county of Hinds 'u d State
of Mississippi, my true and lawful agent and attorney in
fact for me? and in my name, to sell and convey, by good
and sufficient'conveyance, in fee simple, with ge icral
warranty, a certain tract or parcel of land, situate lying and
being in said county of Hinds, butted and bounded as fol¬
lows, to wit: vfyi-ch sale my sliid attorney in fact is here¬
by authorized to make for cash, or on credit, according to
his disctetion. And I do further authorize and empower
my 'said attorney for me, and in my name, to receive and
receiot for all such sum or sums of money as maybe con¬
tracted to be given as the consideration of said land,
Hereby ratifying and confirming whatsoever acts and things
POWER OF ATTORNEV. 22,r>
my said attorney may do in the premises, in as full and
ample manner, as if I had been personally present and done
the same myself.
In witness whereof, I hereto subscribe my name, and
affix my seal, the 1st day of June 1S37.
A B, (seal.)
Judgment on ca. sa. bond.
A B, )
C D, E F, G H. )
This day comes here into court, A B, by his attorney,
and moves the court for judgment against C D, and E F,
and G H, his sureties. And it thereupon appeared to the
satisfaction of the court, that heretofore to wit; on the
——day of 18—, a judgment was rendered in this
rourl, in favor of the said A B, vs CD, for the sum of
dollars and cents debts and damages, .besides
costs, amounting to the sum of dollars. It further
appeared to the satisfaction of the court, that afterwards,
to wit; on the day of 18—, there was issued on
said judgment a writ of capias ad satisfaciendum, which
was placed in the hands of the sheriff of Davidson county,
who thereupon, on the day of 18—, arrested the
body of the said C D, by virtue thereof. It further ap¬
peared to the court, that the said C D, at the time of said
arrest, had entered into bond conditioned as the act 6f
assembly in such case made and provided directs, with
E F, and G H, his sureties. And the said C D, having
226
FORM BOOK.
failed to appear at the present term of this court, to pay
the monies called for in said process, to make a surrender
of his property, or to take the oath of insolvency, as by
the condition of said bond, he was bound to do.—It is
therefore considered by the court, that the plaintiff recov¬
er of the defendants &c. (Give judgment for the amount
of the original judgment with interest, the costs of that
suit, and the costs of the motion and judgment.)*
*The above judgment should have appeared amongst the forms given
for the use of clerks; but was o nitted through inadvertence, until the
w rlc was thus far advanced through the press,
Articles of copartnership between merchants.
Article of agreement made and entered into the 1st
day of June, in the year one thousand eight hundred and
ihirty-seven, between A B, ofthp one part and C D, of
the other part, both of the county of Davidson and State
of Tennessee, witnessc'h; That the said parties have mu¬
tually agreed to and with each other, to form a partner¬
ship for the purchase and sale of merchandize, on their
joint account, and for their joint profit and lost, which
concern is to be established and conducted in the city of
Nashville, under the partnership style and denomination of
D and Co. and to continue for the term of live years from
this day, unless sooner dissolved by mutual consent. It
is further agreed by said parties, that the capital' stock of
their firm shall be five thousand dollars, one half of which'
amount has been this day contributed and paid in by each
copartnership.
227
party. It is further agreed by the parties, that each of
them is to devote his best exertions, during the continu-
adce of said partnership, to the iu'erests of the concern,
in buying for its use merchandize in the Eastern and South¬
ern markets, the sale of the same, and the collection and
payment of debts due to and by the firm, without any
charge being made by either for his seivices. It is fur¬
ther agreed that accurate and complete books and accounts
shall be kept of the business of the firm, and that at the
end ofeacli year ensuing the date hereof, duiing the exis¬
tence of the partnership, a statement shall be prepared
showing the condition of the concern; and the profitsujhf
the year, if any, shall be agreeably divided between 'the
parties, share and share alike, and the losses, if any, shall
in like manner be borne by them, share and share alike.
In testimony whereof we have hereunto interchangea¬
bly set our hands and seals.
Note.—It has been directed by the Supreme Court in the
cases of Blackburn vs. McAllister, Peek's R. 371, and Nun-
nelly vs. Dougherty, 1 Yer. R, 26, that one partner cannot
bind another by contract under seal, unless authorized by the
partnership agreement.
Form of a declmulion made by an alien, declaring his
intention to be ome a citizen oj the Uniled Stales
District op West )
Tennessee, ss. )
Dennis O'Flaherty personally appears in open court,
and having been duly sworn, deposeth and saith that he is
228
FORM BOOK.
a native of that part of the kingdom of Great .Britain and
Ireland, called Ireland; that he was born in the city of
Dublin in Ireland, on the 29th day of March 1S07; that
he continued to reside in his native country, until the
month of July 1834, when he migrated to these United
States; that the point at which he first landed in this coun¬
try, was New Orleans, that he removed thence to the town
of Nashville, Tennessee, where he has remained ever
since, and where he expects to settle permanently. That
frbm his birth to the present hour, he has continued, and
stilus a subject of said kingdom, and as such, now owes
abidance to his majesty William the 4th, King of Great
Britain and Ireland: but that deprecating that allegiance,
and wishing to become a true and lawful citizen of this
Republic, he now, in conformity to the acts of Congress,
prescribing the modes of proceeding to be pursued to ef¬
fect the same, solemnly declares it to be bona fide, his
intention to become a citizen of the United States, and
to renounce forever all allegiance and fidelity, to'every for¬
eign prince, potentate, state or sovereignty whatever, and
more particularly to his present reigning majesty, Will¬
iam the 4th, King of the said united kingdom of Great
Britain and Ireland.
Sworn to and subscribed in open 1
court, May 1837. >
P. Hay, DC. )
re-cords.
Forms of the authentications of records, and judicial pro-
cecdings, as required by the acts of Congress, of 26th
May 1790, and the act of 1804 supplementary thereto.
State op Tennessee,
I, A B, clerk of the circuit court for the county of Da¬
vidson in the State aforesaid, do certify, that the forego
ing is a correct transcript of the records and proceedings
had in said court, in the cause heretofore prosecuted and
determined therein, between C D, plaintiff, and E F, de¬
fendant, as the same remain of record in said court.
In testimony whereof, I hereto subscribe my
name, and affix the seal of said court, at
[L. S.] office in Nashville, the tenth day of June in
the year one thousand eight hundred and
thirty-seven and in the 61st year of our Inde¬
pendence.
A IN¬
state op Tennessee.
I, William T. Brown, one of the Judges of the Circuit
Court for the State aforesaid, and presiding Judge of the
Circuit Court for the county of Davidson in said State,
do certify, that A B, whose name is subscribed to the
foregoing certificate, is clerk of the circuit court for said
county, and that his said attestation is in due form of law.
Given under my hand at in said State, tin's lthli
day of June in the year 1837.
W. T. BROWN.
I
230
form book.
State of Tennessee.
I, A B, clerk of the circuit court for the county of
Davidson, in said State, do certify, that William l'\
Brown, whose name is subscribed to the foregoing certifi¬
cate, is one of the judges of the circuit courts for the
state aforesaid, and presiding judge of said* circuit court
for the county of Davidson, duly commissioned and tjnali-
fled. In testimony whereof, &c.
PART VIII.
it is provided by tlx© 11th Article of the Constitution of the
State oi Tennessee, "that all laws and ordinances now in force
and use in this State, not inconsistent with the constitution, shall
continue in force and use, until they shall expire, be altered or
repealed by the Legislature."
It has been decided by the Supreme Court of this State, thafi,
by the act of 1778, ch. 5, so much of the statutes and common1
law of England, as are- not destructive of, repugnant to, or ink-
consistent with the freedom and independence of this State, and
form of government, and which have not been abrogated, re¬
pealed or become obsolete, are in full force within this State.
The statutes contemplated by the act, were those which passed
prior to the foui-th year of James I., when the charter to the
colonyof Virginia was granted. In the case of Patterson vs.
Winn, 5 Peters' U. S. Rep. 283, the Supreme" Court of the
United States decided, that English statutes passed before the
emigration of our ancestors, and applicable to our situation, and
in amendment of the law, constitute a part of the common law
»f this country.
Origin of the common law.
In the time of Alfred, (who is distinguished by the title of
Alfred the Great,) the customs of the different.provinces 'of
England had become so various and complex, that in order to
dispense equal and impartial justice among his subjects, he col¬
lected and reduced them into one uniform code of laws, in his
J 33
FORM BOOK.
dom book, or liber judicialis, for the use of all the courts, botli
civil and criminal, in the whole kingdom. Alfred succeeded to
the throne In 872, in the 22nd year of his age; and died October
23, 901. In the course of a few years Alfred's code fell into
disuse in many of the provinces, in consequence of the intro¬
duction of new foreign customs, which were produced by the
Danish invasion and conquest in England. King Edgar, who
was first crowned at Kingston upon the Thames, in 959, and
again at Bath in 972, observing the ill effects which the Dan¬
ish customs had wrought upon the code of Alfred, "projected
and begun one uniform digest or body of laws, to be observed
throughout the whole kingdom." His grandson, King Edward
the confessor who began his reign in 1042, and died in 10C6,
afterwards completed this digest, making such improvements
as had been suggested by time, necessity and experience. It is
said that the undertakings of King Edgar and Edward the Con¬
fessor, were "no more than a new edition, or fresh promulga¬
tion, of Alfred's dom book, with such additions and improve¬
ments as the experience of a century and a half had suggested."
These codes although now lost, did for a long time serve as the
text books or basis of English jurisprudence, and are consider¬
ed as the origin of that admirable system arid collection of cus¬
toms denominated the Common Law, whose origin,, is said by
Sir Matthew Hale, to be "as undiscoverable as the head of the
Nile."
"The goodness of a custom depends upon its having been
med time out of mind, or time whereof the memory of man
runneth not to the contrary. The memory of man i*
taken in law to run to the beginuing of the reign of Richard I.
July 6, 1189; and consequently, if it can be shewn that the cus¬
tom commenced at any time since, or did not exist before, it is
invalid. " But a regular usage for 20 years, unexplained and un¬
contradicted, is sufficient to warrant a jury in finding an imme¬
morial custom." 1 Blackstone's Com. 67, 2 do. 31; 2 Barn¬
well and Cres. 54; 2 Saunders 175.; 6 East's R. 214: Peake's
Evidence, 836; 4 Price R. 198.
Chancellot Kent says that, "a great portion of the rules and
common law.
233
maxims which constitute the immense code of the coasmon law,
grewinto use by gradual adoption, and received, from time to
time the sanctions of the courts of justice, without any legisla¬
tive actor interference. The best evidence of the common law
is to be found in the decisions of the courts of justice, contain¬
ed in the numerous volumes of reports; and in the treatises and
digests of learned men, which have been multiplied from the
earliest periods of the English history,, down to the present
time."
Princes of the Norman Family.
William the Conqueror, fluke of Normandy, after the
great and decisive victory of the battle of
Hastings, began his reign on the 14th day of
October 1066, and reigned twenty years,
ten months twenty-six days.
During his reign, the trial by combat, for the decision of all
•ivil arid-criminal questions of fact, was introduced, "and the
feudal tenures and"polity were established in the kingdom, as
part of the national constitution..
William Rufus, of the Norman Family, began his
reign on the 9th September 103T,
and continued his reign twelve years
and ten months.
He'proceeded (a establish and carry out the principles of policy
established by his father. During his reign theft was made
capital, and punishable with death; but the criminal could re¬
deem his life by a ransom.
Henry the I., the brother of William Rufus, began
his reign, August, 2nd 1100, and reign¬
ed thirty-five years and three months,,
20*
234
form book.
During his reign,the power of redemption for the crime of
theft was taken away, and all persons guilty of larceny above
the value of twelve pence, were directed to be hanged; and
*this was part of the common law until altered by-statute, not
only of England but of this country.
Stephen, the Usurper, began his reign December
1st, 113.5, and continued to reign eighteen
years ten months.
From his reign are dated the introduction of the Roman civil
and canon laws into England. No alterations of the laws
occurred in his reign worthy of notice.
Princes of the Saxon line Restored,
Henry II., who was of the Saxon Line Restored,
and who was the greatest prince of his
time for wisdom and abilities, and the
mc st powerful in extent of dominion, be¬
gan his reign mi the 25th day of October,
1154, and continued his reign until 1189,
when he was succeeded by Richard
the I.
Henry dismissed the mercenary soldiers of Stephen, and res¬
tored the crown which had been debased during the former reign.
He checked the power of the pope and his clergy. He introdu¬
ced and established the grand assize, or trial by jury, instead of
the Norman trial by battle. During his reign much was done
to methodize the laws, and reduce them to order by Glanville,
in his essay on the ancient actions, and the forms of writs then-
in use.
Richard I., succeeded Henry II,.in 1189, and con-,
tinued to reign untiL 1199..
COMMON LAW.
He enforced -the forest laws with some rigor* though here*
pealed the penalties of castration*, loss of eyes, and cutting off"
the hands and feet before inflicted on such as transgressed in
hunting.
John succeeded Richard to the thronb in 1199, imd
continued to reign until 1216,. wherf he died al
Newark, in the 49th year of his age.
Henry JII , began his reign in the year of* 1216, and
continued to reign until 1272.
Henry consented to the two fatuous charters of .English lib¬
erty, magna cluxrta. and chart a de forrsia, which according to*
(Joke, "was for the most part declaratory of the principal
grounds of the fundamental laws of England,"" Magna Charter
protected every individual of the nation in the free enjoyment
of "his life, his liberty, and his property, unless declared to be
forfeitedby his peers, or the law of the land." Bracton wrote
his treatise of the common law of England, in the reign of Hen-*
ry III.-J-and in the reign of Edward I., this w.ork was reduced
into a compendium of Thornton.
Edward I., began his reign in 1272, and continued
in office until 1307, having reigned thirty
four years and seven months.
Sir Matthew Hale "says* "that more was done in the first thir-^
toen years of the reign of Henry III., to settle and establish the
distributive justice of the kingdom* than in ail the ages since
that time put ^together J? He established and confirmed the
great charter. He gave a mortal' wound to the encroachments-
of the pope and clergy. He defined the limits of the several
courts of justice. He secured the property of the subject, by
abolishing all arbitrary taxes. He settled the form and effect
ef fines. He first established a repository for the public records
of the kingdom. He improved upon the laws of King Alfred.
236
form book.-
He granted executions, not only upon goods and chattels, Lift
also upon lands, by writ of elegit. He introduced the statutes'
ofmortmain. He established a new limitation of property by
the creation of estates—tail. The forms of writs, by which
actions are commenced, were perfected in his reign. The legal
treatises of Britton and Fletal were also written in his reign.
Edward, II.) succeeded to the throne in 1307, mid
continued to reign until 1327.
From the time of Edward I) to the time of Henry the Eighth,
there were made very few, and those not very considerable al¬
terations in the legal forms of proceedings.-
Edward III., began his reign in 1327, which ended
in the year 1377.
The sheriffs and conservators of the peaee, were taken from
the people in the reigns of Edward II.} and Edward III., and jus¬
tices of the peace established instead of the latter. The statute
which limited the cases of high treason to three principal
heads, to wit; conspiring the death of the king, levying war
against the king, and adhering to his enemies, were enacted"
during his reign. He enlarged the credit of the merchant by
introducing the statute staple. T he statutes also of praemunire,
for effectually depressing the civil power of the pope, were the
Work of this and the subsequent reign, and the establishment of
a parochial clergy, by the endowment of vicarages out of the
Overgrown possessions of the monasteries, were also the work
of this reign.
Richard II., began his reign in 1377, and he con¬
tinued to reign twenty-two years and three
months.
Richard was indolent, profuse in his expenses, fond of idle
show, and addicted to foolish pleasures. He died In the 34th
year of his'age, and left no' posterity, either legitimate or ille¬
gitimate.
COMMON LAW.
237
Princes of the Family of Lancaster,
Henry IV., began his reign in the year 1493, and
reigned until the year 1413.
Henry's command of temper was remarkable, "and he pos¬
sessed many qualities which fitted him for his station, and which
rendered his usurpation, though pernicious in after-times, rath¬
er salutary during his reign."
Henry V., began his reign m 1413, and reigned nine
years and five months, to wit, until the
year' of 1422.
He died in the S4th year of his age, and was buried at West¬
minster. He possessed many virtues, which were unstained
by any other blemish than ambition and the love of glory.
Henry VI., succeeded Henry V, and began his reign
in 1422, and reigned until 1461.
Henry the VI, was of the most harmless, simple manners,
but of slender capacity. He began his life with as splendid
prospects as any prince ever enjoyed, but the animosities of
the two contending families, to wit: of the house of Lancaster
and the house of York grew so implacable during his reign,
that the noblest blood of England was spilt upon the scaffold,
as well as on the field.
Princes of the Family of York.
Fdward IV., began* his reign in 1461, and reigned
until the 8th of April, 1483.
Edward, though brave and active, had little foresight. All
the energies of his reign seem to have terminated with the civil
w,ars: his spirit after the wars sunk into indolence and pleas¬
ure. Littleton's Book of tenures was composed in the reign of
Edward IV., and it is confined to the doctrines of the old Eng-
238
form book
lidh law, concerning the tenures of real estate. Lord Coke
says, that Littleton's Tenures was the most perfect and abso¬
lute work, and as free from error as any book that ever was
written on any human science. Under his reign the fiction of
common recoveries was introduced, for the purpose of unfetter¬
ing estates, and making them more liable to forfeiture.
Edward V., succeeded to the throne April 9th 1483,
and continued to reign only two months
and thirteen days.
Edward the V. was smothered by hired ruffians in the Tower,
and buried under a heap of stones. His bones were never
found until the rei pi of Chales II., when they were deposited in
Westminster Abbey.
Richard III., began his reign 1483, and continued
to reign until the 22nd, day of August
1485.
All historians agree that Richard was a barbarous and cruel
tyrant, and always ready to commit the most horrid crimes
which appeared necessary for his purposes.
The families of Lancaster and York United.
Henry VII., began his reign on the 22nd day of Au¬
gust, 1435, and reigned twenty-three
years and eight months.
During his reign Christopher Colulmbus discovered America.
Henry fitted out Sebastian.Cabot, a Venetian settled in Bris¬
tol, and sent him westward in 1498, in search of new countries.
Elliott, and other merchants in Bristol, made aliae attempt in
1502. A general revolution was produced in human affairs du¬
ring his reign; an! men gradually entered on that career of
commerce, arts, science and government, in which they have
ever since persevered. In his reign informations were
common law.
239
allowed to be received, in lieu of indictments, at the assises and
Sessions of the peace, in order to multiply fines and penalties.
The statute of fines for landed property, was continued, to
facilitate the destruction of entries, and make the owners of real
estates, more capable to forfeit as well as to alien. A writ of
capias wa$ permitted in all actions on the case, and the defen¬
dant might in consequence thereof be outlawed.
Henrv VIII., began bis reign on the 22nd, day of
April 1509, and reigned until the 28th
day of January 1547.
The accession of Henry the Eighth spread universal joy
throughout England. The usurped power of the pope was
routed and destroyed during his reign, the crown restored to its.
supremacy over spiritual men, and the patronage of bishopries
once more vested in the king.
The statute of wills, and the statute of uses both passed in
the reign of this prince: the former allowed the devise of real
estate by will, which before was in general forbidden; and the
latter was intended to destroy the intricate nicety of uses. In
this reign the immunities of estates—tails, were reduced to little
more than the conditional fees at the common law, before the
passing of the statute de bonis. Recognizances in the nature
of a statute—staple, for raising money upon landed security,
was established. The bankrupt laws were also introduced in
his reign.
The oldest reports extant on the English law, are the Year-
Books, which consists of eleven parts, and extend from the be¬
ginning of Edward II, to the latter end of the reign of Henry
VIII. These reports were taken bj the prothonotaries, or
chief scribes of the court, at the expense of the crown, and pub¬
lished annually. Perkin's Treatise of the laws-of England,
and a dialogue between a Doctor of Divinity, and Student at
Law, were written in this reign. The reports of Dyer, and
Plowden's Commentaries, relate to the reigns of Henry VIII.,
and Edward VI., Mary and Elizabeth. Plowden's Com. were
240
form book.
'first published in 1578. Stratham, Fitzherbert, and Brooke,
each published an abridgement of the laws, in the reign of Hen¬
ry VIIL Sfratham's Abridgment, was a digest of most titles of
the law, and comprising under each head, adjudged cases from
the Year-Books. Fitzherbert's work, was .published in 1514,
and Brooke's in 1573. These two last abridgements contain the
substance of the Year-Books, regularly digested.
The second part of the Institutes of Coke, is a commentary
uponthe ancient statutes, beginning with magna charta, and
proceeding down to the reign of Henry VIII. The first part of
his work is a commentary upon Littleton's Tenures. The
third and fourth parts of his Institutes treat of high treasoh, and
the other pleas of the crown, and the history and antiquity of
the English courts.
Edward VI., began his reign in 1547, and reigned
six years and five months.
Edward was littlb more than 9 years of age at his accession.
English historians say that this young prince possessed excel¬
lent qualities, and many real virtues, with application to study
and business. He died4at Greenwich in the 16th year of hi?
age.
Mary; began her rpign in 1553, and reigned until the
17th November 1558.
♦
The first bill passed by the parliament during her reign, was
©f a popular nature, and abolished every species of treason, not
contained in the statute of Edward III., and every species of
felony that did not subsist before the first of Henry jVIII.> All
the statutes of Edward, with regard to religion, were repealed
by one vote. During the short reign of Mary, many laws were
made for the purpose of reconciling the people to the bloody
measures wbi<;h »he was induced to pursue, for the re-estab¬
lishment of religious slavery, bigotry and superstition, which had
common law.
241
hitherto flourished so well, not only on the continent, but—like¬
wise in England.
Queen Elizabeth. Began her reign in 155S, and
reigned until the 24th day of
March IG03. She reigned
fig^s-forty years and four months-
In the reign ofElizabcth the administration of civil rights in
the courts of justice, was carried On in regular course, accor 1-
ingto the wise institutions of King Edward I.: the principal
grievances introlUrod by the Norman conquest were gradually
shaken off, and the Saxon constitution restored. The increase
of power ofthe star-chamber, and tl^e erection of the high com¬
mission court in matters ecclesiastical, were the work of her
reign. The famous statutes declaring all conveyances of
goods and chattels in tfust for the use of the person conveying
them, or those mad3 to delay, hinder and defraud creditor-,
void, were passed in the thirteenth and twenty-seventh years of
the reign ofElizabcth; anditi^now everywhere admitted that
these statutes were declaratory of the Common law.
The vigor, firmness, penetration atul addiess of Elizabeth,
have not been surpassed by those of any person who ever filled
a throne. Sir William Blackstone says« that, "such wejje her
circumstances, her necessities, her wisdom and her good^si} »-
sition, that never did a prince, so long and so entirely, fbr the
space of half a century together, reign in the affections ofthe
people."
ILuse of Siuart.
James I., began his reign on tne 24th day of March
1G03, and reigned until the year IG25.
In the reign of James, very little was doue for the improve¬
ment of private justice, except the abolition of sanctuaries, the
21
242
FORM BOOK
extension of the bankrupt laws, the limitation of suits aild ac¬
tions, and the regulating of informations upon penal statutes.11
The statute amendatory of the act of 33 Henry VIII. chapter
8, making all witchcraft and sorcery, feloriy, and punish¬
able with death, was passed in the first year of this reign.
These acts continued in force in England, until the 9th year
of the reign of George the II., when they were repealed. They
have never been repealed in Tennessee, and consequently are in
force here, if they, (t® use the language of the. act of 1778) "art
not destructive of repugnant to, or inconsistent with the free¬
dom and independence of this Slate, and form of government."
The Authors have never known or heard of but one ease in this
State, where a person was arrested for witchcraft, although the}
have on some occasions, segn witch-doctors busily engaged in
administering to the wants- and comforts of patients said to be
bewitched. The case alluded to, occurred in Fentress county.
A man living on Obed's River, was arrested for having be¬
witched a young lady living on the Mountains, and carried
before a justice of the peace. The justice, after having heard
all the evidence, both for and against the accused, and after
due deliberation had thereon, came to the conclusion that he
was guilty of the charge, and accordingly bound him over to
appear at the next ensuing county court. The Attorney Gen¬
eral being of opinion that the prosecution could not be sustain¬
ed^ refused to prefer a bill of indictment before the grand jury
of the county, and so the defendant was discharged. This
gave great offence to the person who had procured the
arrest, and to many other persons living on the Mountains, and
round about, all of whom were ready to swear that the defen¬
dant was a wizzard, that he^had frequently been seen to escape
out of houses through the key holes of the door, and that he had
on divers occasions, not only operated on the bodies and minds
of human beings, at a time when lie was ten or fifteen miles dis¬
tant from them, but also on horses, cattle, and other stock.
Such was the excitement produced on the Mountains, in con¬
sequence of the defendant's being set at liberty, that many open-
COMMON LAW.
243
ly and boldly proclaimed that it would be much better to live
without laws, if such offenders could escape with impunity.
The persons who arrested the accused, treated him with a great
deal of rigour, by abusing his person. He wTas made to do va¬
rious acts, by way of experiment, in order to establish the fact o
his being a wizzard. One of the company presented a gun at
him loaded with a leaden ball, but recollecting that he had beard
it said of old, that "a witch could not be killed with lead" he
withdrew the ball, and then loaded his gun with cut silver. The
defendant after his discharge, went before the grand jury and
indicted several of the persons concerned in arresting him, for
an assault and battery. When these cases came on to be tfied
before a jury of the country, defendants' counsel admitted tha
the assault and battery had been committed as charged in the
bill of indictment, but justified the assault upon the grounds tint
it was committed in arresting a felon:—and for this purpose he
relied upon the common law, and the statutes of Henry the
VIII., and James the I., which make the offence of witchcraft
felony; and finally concluded in the language of Blackstone by
saying that, "to deny the possibility, nay, actual existen :e 6
witchcraft and sorcery, is at once flatly to contradict the reveal¬
ed word of God, in various passages both in the Old and New
Testament," The jury however returned a verdict of guilty
agaiust the defendants. These statutos and these cases afford
examples of the power-and influence of knowledge, and the
foolishness of bigotry and superstition. Knowledge, like a
mighty inundation, can in a few years sweep away systems of
bigotry and superstition, which have been accumulating for
ages.
The treatise of Sir William Finch, on the maxims and posi¬
tive grounds of the law, was first published in 1613. Shep¬
herd's Touchstone, was published in the reign of James the I.
Rolle's Abridgment of the law was published soon after the
restoration. It brings down the law to the end of the reign of
Charles the I. Rolle was chief justice of England under the
protectorate of Cromwell, and the preceding commonwealth.
Coke's Reports in thirteen parts or volumes, are confined to the
244
form book.
reigns of Elizabeth and James. When these reports were pub¬
lished, between 1600 and 1615, there were no otherprior reports,
but the Year-books, Dyer and Plowden.
Hobart's Reports of cases, in the time of James I., were
printed in 1646. Coke's reports of decisions in the courts ot
law in the reigns of Elizabeth, James and Charles, are a work
of credit and celebrity among the old reporters. They com¬
mence about the time that Dyer ended. The reports of Yel-
verton are a small collection of selected cases, in the latter
parts of the reign of Elizabeth, and the first ten years of the
reign of James.
The following princes reigned, after the time of James I.,
and consequently none of the statutes passed in their reigns are
in force in this State unless they have been re-enacted by our
Legislature, or that of North Carolina, prior to 1796.
U hal e s I ,
Reigned
from
1025
to
1649
Charles II.,
u
from
1649
to
16S5
James II.,
a
from
16S5
to
1689
Will. & Mar's"
cc
from
1089
to
1702
Queen Anne,
it
from
1702
to
1714
George I.,
u
from
' 1714
to
1727
George II.,
(c
from
1727
to
1760
George III.,
el
from
1700
to
1820
George IV.,
a
from
1820
to
182-
William IV.,
a
from
182-
to
the
present time.
Saunder's reports are confined to decisions in the Kings
Kerich, between the 18th and 24th years of the reign of Charles
II. The x-eports of Sir Thomas Jones, and Sir Creswell Le-
nnz, consist of cases decided in the reign of Charles II. Wil-
COMMON LAW.
243
leS* Vc ports were published in the reign of George the II. The
reports of Lord Raymond and Sergeant Salkeld embrace the
reigns of William and Mary, and Queen Ann. The repoyts of
Sir John Strange, of Lord Baron Comyn and Sergeant Wilson,
occupy the reigns of George L, and II. The reports of Cow-
per, Burrow and Douglass, contain the substance of Loi d
Mansfield's decisions. Since the accession of George III., the
, courts at Westminster have been filled with distinguish d ju¬
rists, as will readily appear from the judicial opinions and de¬
cisions to be found in Term Reports, East, Bosanquetand Pul¬
ler, Taunton and their successors.
Since the English revolution, the new digests or abridgments
of the law, have superseded the use of the former ones. The
treatises of Lord Comyn, Gilbert, Cruise, Bacon and Black-
stope, are of high value and character, and have contributed ve¬
ry much to advance the jurisprudence, not only of England,
but of this country.
Lord Chief Justice Coke, was born 1549, and died in
1634.
Sir Matthew Hale, was born in 1600, and diod on the
25th December, 1G76.
Sir William Blackstone, was horn 1723, and died Feb¬
ruary 14th 1780.
His commentaries on the Igws of England were first published
in 1756. He said in the first lecture which he delivered in the
University of Oxford, "that, I think it an undeniable position,
that a competent knowledge of the law* of that society in which
we live, is the proper accomplishment of every gentleman find
scholar, a highly useful and essential part of a liberal educa¬
tion. And in this, I am warranted by the example of ancient.
Rome; where, as Cicero informs us, the very boys were obliged
to learn the twelve tables by heart, as a carmen necessarium, or
indispensable lesson, to imprint on their tender minds an earlj
knowledge of the laws and constitution of their country."
21*
TABLE OF CONTENTS.
PART I.
CLERKS OF CIRCUIT COURTS.
Duties of, at commencement of court 1-5
Oath of foreman of grand jury. S
Oath of other Jurors. Ib.
Oath of Constable of grand jury. 5-4
Oath of Constable entrusted with the charge of jury
confined on a criminal trial. 11
Form of caption of the court, 4
Entry on return of venire facias. 4-5
Forms of proceeding in criminal and penal prosecutions 5-25
Oath of witness sent before grand jury. 5
Form of return made by grand jury on bill of in¬
dictment. 6-7
Form of arrangement, taking plea &c. 7
Selection and empanelling jury in a criminal case 8-9
Verdict and judgment for murder. 10-12
Virdict and judgment for larceny, 14-15
Recognizance of a prisoner and his bail, 15
Entry on forfeited recognizance vs principal, 16
vs bail do. 17
Recognizance of witnesses, 17-18
Verdicts and judgments in cases of misdemeanor, 19-20
Judgment on submission, 21
Oath jury in civil case, 22
243
TABLE OF CONTENTS.
Forms of verdicts and judgments in actions of debt, 22-2/
verdicts, judgments, &.C. in case and assumpsit, 27-34
in Covenant and Detinue, 34-35
in Trover, 36-37
in Trespass, 38-39
in Ejectment, 39-43
in Scire Facias, 43-46
Proceedings on demurrers, 46-19
by and against executors and administrators, 50-55
on appeals and writs of certiorari from
justices of the peace, 55-53
Judgments on motion, 58-68
by default and nonsuit, 68-70
Motions in general, 71-73
Judgment on a ca. sa. bond, 225
Forms of Writs
Summons in an action of debt, 73
Subpmna for witness, 74
Dedimus potestalum, 75
Scire facias, Ih.
Certiorari, 76
Supersedeas, Ih.
Scire facias to revive vs executor or administrator, 77
to revive a judgment, lb.
vs an administrator suggesting a devastavit, 78
vs principal in forfeited recognizance, '79
vs bail in forfeited recognizance, 80
vs husband of a female defendant who mar¬
ries pending a suit, lb.
Habeas corpus cum causa, 81
Mandamus to a county court commanding them to qualify
a sheriff, 81
Writ of error coram vobis and proceedings thereon, 81-84
TABLE OF CONTENTS.
240
PART II.
JUSTICES OF FHE PEACE.
Forms in criminal proceedings.
Form of warrant for tnurder, 85
arson or house burning. 87
rape, lb.
bigamy, 88
sodomy and buggery, lb.
incest, lb.
burglary, lb.
robbery, 89
negro stealing, lb.
larcenyr • lb.
receiving stolen horses or stolen
goods, 90
stealing bills, notes, See. Ib.
counterfeiting and passing bank
bills, 8tc. 91
counterfeiting coins, 93
forgery, . Ib.
perjury and subornation of perjury, 94
bribery, 95
embracery, 90
destroying corner trees; Ib.
destroying wills, Ib.
stealing public records, . Ib.
assault with intent to kill, 97
assault with intent to commit rob¬
bery, Ib.
mayhem, 98
duelling, Ib.
publishing for cowardice, 99
forcible release of a felon, Ib.
escape of a felon, "• Ib.
faro and thimble dealing, 100
conspiracy, , Ibt
250
TABLE OP CONTENTS.
Form of warrant for assanlt and battery (common,) 101
affray, Ib.
riot, 102
unlawful assembly, . Ib.
extortion, lb.
common nuisance, 108
open and notorious lewdness, lb.
malicious mischief, Ib.
beating slaves, 104
against an unmarried woman for
bastardy and bond given by her
to indemnify the county, 104-105
against the reputed father, 100
peace warrant and affidavit. 107
a search warrant, 108
Form of recognizance to keep the peace and to appear
at court, lb
Form of recognizance for prosecutor, 110
witnesses, 111*
prisoner and sureties, 111-112
Form of a mittimus, 118
judgments by justie.es in criminal cases. 114
*
Forms in civil actioas—Actions of debt.
Warrant by payee vs the maker of a note, 115
by assignee vs the maker and endorser, 116
by the last endorser against the maker alone, 117
by partners against the maker of a note, 118
against partners in an action of debt, 119
against husband and wife, on a note given by
the wife before marriage, lb.
by husband and wife on a note given to the
tvife while single, 120
by the husband alone, on a note given to the
wife while single, Ib.
by an executor or administrator against the
maker of a note, 121
TABLE OF CONTENTS.
251
Warrant by the payee against the executor of the ma¬
ker of a note, 122
on a protested order, 123
Actions of assumpsit, covenant, fyc.
Form of warrant for work and labor done, and for
goods, wares and merchandize sold and delivered, 121-125
Form of warrant on covenants 226
in actions on the case, 126-129
in actions of trespass, 129-130
in penal actions, 130-181
Form of an attachment bond and affidavit, 132-184
a garnishment issued by and returnable before
a justice, 135
a judgment against a garnishee, Ibm
judgments by justices in civil cases, 137
judgment and execution docket for justices, 138
judgment for administrator on plea of fully ad¬
ministered, 139
affidavit for an execution or ca. sa. to issue on •
Sunday, 140
an execution and ca. sa. 141
bill of costs to be endorsed on execution by
the justice, 142
entry to be rrude on warrant when appeal is
prayed, lb
appeal bond, 143
a scire facias to be issued by a justice of the
peace, 144
Forcible entry and detainer.
Form of compldint make to a justice of peace. 145
the precepts to be issued by the justice, 146-147
jurors oath, 148
verdict of the jury, lb.
writ of restitution, 149
252
TABLE OF CONTENTS.
CONSTABLES.
Constables, their ppwer and authority,
bonds of, for discharging duties of office,
return on bail wrrraut,
return on a sunmiorxs vs two. '
bond taken by, of debtor arrested on ca. set.
notice to, that judgment will be moved for
ill eourt.
delivery bond taken by,
garnishment tp be issued and served by,
bond of indemnity to, for levying pn and
selling disputed property,
their fees allowed by law,
PART III.
SHERIFFS.
Digest of the Bets of the General Assembly in relation
to their powers and dutioS. 162-171
Bond for performance of duties of office as required by
act of 1777, 171
Bonds for collection of state and county revenue as re¬
quired by act of 1805/* 173-77.1
Reports of lands, the owners having no goods nor chat- *
tels in county, 173
Order of sale, 174
Return on summons executed on one, find one not found, 175
■on capias ad respondendum, lb.
on s<ure facias, 176
on execution which has been levied, lb.
Delivery bond taken by, 157
Garnishment issned and executed by, 177
Prison bounds bond taken by and assignment thereon, 179
Bond of indemnity to, for levying oil and selling dispu¬
ted property, 159
Bail bond taken by in civil action and assignment thereon, 179
Recognizance taken by, in criminal case, 180
151
152
153
lb
154
155
157
158
159
1 f>t)-rl 61
TABLE OP CONTENTS,
253
Their fees as allowed by law, 131-184
Decisions of supreme court in relation to powers and
duties of, 184-187
PART IV.
EXECUTORS AND ADMINISTRATORS.
Executors and administrators, bond of, 188
Letters testamentary and of administration, 190-191
Inventory to be returned by, 192
Refunding bond taken by, from distributee, lb.
GUARDIANS.
Guardians, bond of, 194
account exhibited by, at court, 196
annual report of receipts and disbursements, 196-197
PART V.
OATHS.
Oaths, form of, on Bible or New Testament, 10, 199
with uplifted hand, 199
to be taken by members of general assembly, 200
to be taken by judge of circuit court, lb.
to be taken by judges of supreme court, 201
to be taken by justice of peace, lb.
to be taken by all officers, called the duelling oath, 202
of a sheriff, 203
of a Sheriff for collecting taxes,' lb.
of a Constable, 204
of Clerks of Courts, 205
of Clerks on rendering accountof taxes to treas¬
urer or trustee, lb.
of Treasurer of State, 20b
of Governor, lb.
of Revenue Commissioners, lb
of Administrator, 207
of Tobacco Inspector, lb.
Q<->
254
TABLE OP CONSENTS
Oatli of Standard Keeper, 208
of jurors of view for laying off road, lb
of insolvent debtors, 209
of persons suing or appealing under pauper law, 210
to be made to obtain capias ad respondendum, lb.
to be made to obtain execution or ca. sa on Sun¬
day, 140
under book debt law, 125
to obtain ca. sa. under act of 1831, where defend¬
ant acts fraudulently, &.C. 211
of an attorney at law, 212
of retailers of spiritous liquors, lb.
PART VI.
FORMS OF CONVEYANCES, &c.
Deed, in fee simple With general warranty, 214
in fee simple with special warranty,
»f mortgage, Fjb
m fee simple with liberty to repurchase, 2f7
in trust for payment of debts, 218
of shwriff, 219
for securing property of wife vs creditors of hus¬
band, 221
Lease for years on payments by instalments, &c 223
Power of attorney to sell lands &c. 224
Articles of co-partnership between merchants, 226
A ben, declaration to be lhade by, of his intention to be¬
come a citizen of U. S. 227
tutHentication of records and judicial proceedings, 229-230
PART VII.
Statutes of England in force in this country, 231
Origin of the common law, 231-233
Princes of the JSorman line, 233-234
Saxon line restored, 234-236
Lancaster family, 237
TABLE OF CONTENTS.
255
Princes of the Ydrk family, 237-238
York and Lancaster families united, 938-241
House of Stuart, 241-244
Princes who reigned after James I. 245
Time of birth and death of Coke, Hale and Blackstone, 245
Robert W. Woodruff
Library
Special Collections
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