S. Where a "word" is omitted in the
condition of a bond, without which,
the condition is insensible, if it
appear from other parts of the
bond, what the meaning of the par-
ties was, the court will supply or
add the word to the condition. Ib.
4. The law required the condition of a
sheriff's bond for the payment of
the taxes, to be made payable to
the treasurer of the district where-
in the sheriff resided. The bond
in this case, recited that A, the par
ty bound was elected sheriff and
collector of Lincoln county; the
condition of the bond was, "that
the taxes should be paid to the
treasurer of the district of Tennes-
see."

Lincoln county is in the
district of West Tennessee: Held,
that the court could supply the
word "West," so as to make the
condition read payable to the
treasurer of the district of West
Tennessee.
Ib.
5. A, by bond, indemnified B, against
a certain note, upon which B was
afterwards sued, and judgment re-
covered, which judgment was paid
by the appearance bail of B. B
afterwards sued A upon his bond
of indemnity: Held, that the bond
of indemnity was forfeited as soon
as judgment was rendered against
B, and A, upon notice thereof,
failed to secure him from responsi-
bility thereon by paying the same:
Held also, that a payment by the
appearance bail was equivalent to
a payment by B.
Smith & Nolen v Eubanks,
Upon the issuing of a ca. sa. the
party executed a bond, with the
Following condition: "The con-
dition of the above obligation is
such, that whereas the said Max-
well Sharp has caused a ca. sa. to
be issued against the said Robert
Nelson for the sum of thirty-five
dollars, and costs of suit, returna-
ble agreeable to law, which said
ca. sa. has this day been executed
on the said Robert Nelson by Sam-
uel D. Buck, a constable for said
county; now, if the said Robert
Nelson should make his personal
appearance before the next court
of pleas and quarter sessions, to

20

be holden for the county of Mont-
gomery at the court house in
Clarksville, on the third Monday
of July next, and then and there
make payment of the said moneys
called for in the said execution, or
take the oath prescribed by law
for insolvent debtors, or make sur-
render of his property agreeable to
the acts of the general assembly in
such case made and provided, then
the above obligation to be void.
But should the said Robert Nel-
son fail to appear according to the
tenor of this bond, the above obli-
gation to be in full force and ef-
fect:" Held, that this condition
substantially complied with the re-
quirements of the acts of 1824 and
1825, requiring the bond to be ta-
ken, and that judgment might be
rendered against the principal and
surety therein.
Sharp v Nelson,

BOUNDARY.

34

1. Where a grant calls to lie on both
sides of a creek, but the calls for
course and distances when run out
throw it altogether on one side,
it was held that the directory call
to lie on both sides of the creek
must be disregarded, and that the
lines cannot be so extended as to
cross the creek.
Wright v Mabry
General or directory calls must
yield to special or locative calls

2.

3.

4.

55.

Ib.
Where the respective owners of ad-
joining tracts of land, claimed up
to, and recognised a line, run by
one, to ascertain the locality of
his land, it is evidence that the line
so run is the true dividing line be-
tween them. Nor would either
of the parties be at liberty to a-
bandon such line, although the
original was ascertained after-
wards to be at a different place.
Gilchrist v McGee,
Ifa surveyor runs the first line sev-
eral degrees variant from the true
course, it is presumable he was
thus directed by his compass, and
if misdirected by it in running the
first, the presumption would be

455

that it misled him the same way
throughout the survey.

16. 5. Where a base line is established as the eastern boundary of three tracts of land, which was variant from the true course called for, and in re-surveying the tracts to ascertain their boundary, the survey was run at right angles with the base line: Held, that this was correct.

15. 2. 6. If a surveyor, upon a resurvey of land runs one line of the survey at the place the owner thinks he is entitled to claim as his true boundary, and he takes possession up to the line so run, he is not thereby estopped from claiming and holding possession of his land upon other parts of his boundary, according to the lines claimed by him before the resurvey, although they are variant from the lines marked for the survey. Ib. 7. If parties with full knowledge that a boundary line between them is fixed and established, afterwards consent, or make a verbal agreement to change the line or boundary, such agreement would be within the statute of frauds.

C

Ib.

CAPIAS AD RESPONDENDUM.

1. Sheriff's liability for failure to return. Vide Judgment, 7.

CAPIAS AD SATISFACIENDUM,

Vide JUDGMENT. JURISDICTION.

1. A capias ad satisfaciendum, issued from a justice in the following form: "To any lawful officer to

34

ry, 1884, together with all lawful cost, and have you those moneys ready to render unto those entitled to receive them agreeable to law. Given," &c. Held, that this was sufficient, and that the ca. sa. need not command the officer to have the defendant before the justice on a day to be named in the writ. Sharp v Nelson. Upon the issuing of a ca. sa., the party executed a bond, with the following condition: "The condition of the above obligation is such, that whereas the said Maxwell Sharp has caused a ca. sa. to be issued against the said Robert Nelson, for the sum of thirty five dollars, and cost of suit, returnable agreeable to law, which said ca. sa. has this day been executed on the said Robert Nelson by Samuel D. Buck, a constable for said county: now if the said Robert Nelson should make his personal appear ance before the next court of pleas and quarter sessions, to be holden for the county of Montgomery at at the court house in Clarksville, on the third Monday of July next, and then and there make payment of the said moneys called for in the said execution, or take oath prescribed by law for insolvent debtors, or make surrender of his prop erty agreeable to the acts of the general assembly in such case made and provided, then the above obligation to be void. But should the said Robert Nelson fail to ap pear according to the tenor of this bond, the above obligation to be in full force and effect." Held, that this condition substantially com plied with the requiremunts of acts of 1824 and 1825, requiring the bond to be taken, and that judgment might be rendered a gainst the principal and surety therein.

15.

of which, a bond under the provis ions of the acts of 1824 and 1825, is executed, constitutes a proceeding in the suit when it is returned. Hubbard & Walson v Cole, 501 Where a bond is given, ou the execution of ca. sa. if the money be

paid at court, it is a satisfaction alike of the bond and of the original judgment. Ib. 5. If a bond is given upon the execution of a ca. sa. under the provisions of the acis of 1824 and 1825, and the oath of insolvency is taken, its effect upon, and its relation to the suit, are the same as if taken in prison.

Ib. 6. Where a bond is executed under the acts of 1824 and 1825, upon the execution of a ca. sa. and is forfeited, it is not necessary for the plaintiff in his motion to describe, nor need the judgment describe the bond, ca. sa. &c., these are matters of record and are already before the court. Ib.

2. Where a certiorari ought to have

CHALLENGE.

Vide JURY, 1, 2, S, 6, 7, 8, 9.

CHAMPERTY.

1. Where an attorney's fee was unconditional, and neither to be increased or diminished by the event of the suit, but the attorney admitted that his client was so poor, that unless the cause was gained, he will not be able to realize any part of it, and that knew this before he commended the suit: Held, that this was not a champertous contract within the meaning of the act of 1821, c. 66. Moore et. al. v Trustees of Campbell Academy.

115

2. An attorney was requested by letter to institute a suit, and the writer offered to give one thousand dollars if the suit was gained: to which the attorney replied, he was not permitted by law to take a contingent fee, but he would see the interest of the writer protected. And he accordingly commenced a suit to prevent the operation of the act of limitations, and it was afterwards stipulated that he should be paid a certain fee: Held, that this was not champerty in the attorney. Ib. The contingency of a fee necessary to constitute champerty, depend upon the terms of the contract or agreement, not from the inability of the party to pay all or part of the fee, unless successful in the suit.

3.

Ib.

diction in the court, but was not, and a verdict and judgment were rendered, from which an appeal was taken to the supreme court: Held, that up to the time of the trial in the circuit court, the error

in its course of procedure, and highly penal in its sanctions, therefore, the same liberal and extended construction cannot be given to it, which is given to statutes remedial in their character. Ib.

fendants in error, therefore, they will recover their costs up to that time; but that in rendering the verdict and judgment, the court erred against the plaintiff in error, therefore, he will recover the costs of the supreme court, and the costs of entering the judgment of the circuit court.

Ib.

to sell land by wilt, (of which land his testator died seized,) a sale made by him at a time when the the lands are adversely holden, is champertous and void, and a court of equity will not specifically execute such a contract. Peck and McDermot v N. &. Peck and others,

301

that it misled him the same way
throughout the survey.

16. 5. Where a base line is established as the eastern boundary of three tracts of land, which was variant from the true course called for, and in re-surveying the tracts to ascertain their boundary, the survey was run at right angles with the base line: Held, that this was correct.

15. 2. 6. If a surveyor, upon a resurvey of land runs one line of the survey at the place the owner thinks he is entitled to claim as his true boundary, and he takes possession up to the line so run, he is not thereby estopped from claiming and holding possession of his land upon other parts of his boundary, according to the lines claimed by him before the resurvey, although they are variant from the lines marked for the survey. Ib. 7. If parties with full knowledge that a boundary line between them is fixed and established, afterwards consent, or make a verbal agreement to change the line or boundary, such agreement would be within the statute of frauds.

C

Ib.

CAPIAS AD RESPONDENDUM.

1. Sheriff's liability for failure to return. Vide Judgment, 7.

CAPIAS AD SATISFACIENDUM,

Vide JUDGMENT. JURISDICTION.

1. A capias ad satisfaciendum, issued from a justice in the following form: "To any lawful officer to execute and return: you are hereby commanded to take the body of Robert Nelson, and him safely to keep, till he render to you the sum of thirty-five dollars, to satisfy a judgment, which Maxwell Sharp obtained before me for debt, withinterest from the 1st day of Janua

34

ry, 1884, together with all lawful cost, and have you those moneys ready to render unto those entitled to receive them agreeable to law. Given," &c. Held, that this was sufficient, and that the ca. sa. need not command the officer to have the defendant before the justice on a day to be named in the writ. Sharp v Nelson. Upon the issuing of a ca. sa., the party executed a bond, with the following condition: "The condition of the above obligation is such, that whereas the said Maxwell Sharp has caused a ca. sa. to be issued against the said Robert Nelson, for the sum of thirty five dol lars, and cost of suit, returnable agreeable to law, which said ca. sa. has this day been executed on the said Robert Nelson by Samuel D. Buck, a constable for said county: now if the said Robert Nelson should make his personal appear ance before the next court of pleas and quarter sessions, to be holden for the county of Montgomery at at the court house in Clarksville, on the third Monday of July next, and then and there make payment of the said moneys called for in the said execution, or take oath prescribed by law for insolvent debtors, or make surrender of his property agreeable to the acts of the general assembly in such case made and provided, then the above obligation to be void. But should the said Robert Nelson fail to ap pear according to the tenor of this bond, the above obligation to be in full force and effect." Held, that this condition substantially com plied with the requiremunts of acts of 1824 and 1825, requiring the bond to be taken, and that judgment might be rendered against the principal and surety therein.

15.

paid at court, it is a satisfaction alike of the bond and of the original judgment. Ib. 5. If a bond is given upon the execution of a ca. sa. under the provisions of the acis of 1824 and 1825, and the oath of insolvency is taken, its effect upon, and its relation to the suit, are the same as if taken in prison. Ib. 6. Where a bond is executed under the acts of 1824 and 1825, upon the execution of a ca. sa. and is forfeited, it is not necessary for the plaintiff in his motion to describe, nor need the judgment describe the bond, ca. sa. &c., these are matters of record and are already before the court.

CAUSE OF ACTION.

Vide ACTION, 1.
SURETY, 5.

CERTIORARI.

16.

Vide FORCIBLE ENTRY AND DETAIN ER, 5.

1. A certiorari granted by two justices of the peace, more than twenty days after the rendition of the judgment, and returnable to the circuit court, ought to be dismissed: the act of assembly authorizing two justices to grant the certiorari, does not extend the time within which it must issue. Dixon v Caruthers, 30 2. Where a certiorari ought to have been dismissed for want of jurisdiction in the court, but was not, and a verdict and judgment were rendered, from which an appeal was taken to the supreme court: Held, that up to the time of the trial in the circuit court, the error of that court was against the defendants in error, therefore, they will recover their costs up to that time; but that in rendering the verdict and judgment, the court erred against the plaintiff in error, therefore, he will recover the costs of the supreme court, and the costs of entering the judgment of the circuit court.

CHALLENGE.

Vide JURY, 1, 2, 3, 6, 7, 8, 9.

CHAMPERTY.

1. Where an attorney's fee was unconditional, and neither to be increased or diminished by the event of the suit, but the attorney admitted that his client was so poor, that unless the cause was gained, he will not be able to realize any part of it, and that knew this before he commended the suit: Held, that this was not a champertous contract within the meaning of the act of 1821, c. 66. Moore et. al. v Trustees of Campbell Academy.

115

2. An attorney was requested by letter to institute a suit, and the writer offered to give one thousand dollars if the suit was gained: to which the attorney replied, he was not permitted by law to take a contingent fee, but he would see the interest of the writer protected. And he accordingly commenced a suit to prevent the operation of the act of limitations, and it was afterwards stipulated that he should be paid a certain fee: Held, that this was not champerty in the attorney. Ib. The contingency of a fee necessary to constitute champerty, depend upon the terms of the contract or agreement, not from the inability of the party to pay all or part of the fee, unless successful in the suit.

3.

Ib. 4. The act of 1821, c. 66, is summary in its course of procedure, and highly penal in its sanctions, therefore, the same liberal and extended construction cannot be given to it, which is given to statutes remedial in their character. Ib.

5. Where an executor is empowered to sell land by wilt, (of which land his testator died seized,) a sale made by him at a time when the the lands are adversely holden, is champertous and void, and a court of equity will not specifically execute such a contract. Peck and McDermot v N. S. Peck and others,

301