1. If the landlord suffers the time pre-
scribed by the act of limitations to
run out, after his tenant has dis-
claimed by purchasing an adverse
title, and claiming under it, or by
any other disclaimer of tenure,
with the knowledge of the landlord,
the title of the landlord will be bar-
red by the act of limitations.
Lane's lessee, v Osment.
2. Such disclaimer on the part of the
tenant, or those claiming under
him, with the knowledge of the
landlord, operates as a forfeiture
of the term, and the tenant's pos-
session becomes so far adverse,

86

that the act of limitations will be
gin to run in his favor from the
time of such forfeiture.
16.

3. But the tenant can, in no case, con-
test or dispute the title of his land-
lord, within the period necessary
to form a bar by the statute of lim-
itations. Until the statute bas
formed a bar, the possession of
the tenant, or those who claim un-
der him, with or without notice of
the landlord's right, is the posses
sion of the landlord, and they will
be estopped from denying his title.
Ib.
4. Where a tenant has forfeited his
term, his landlord may maintain
ejectment against him, without
giving him notice to quit. lb.
5. A tenant caunot during the term, by
disclaimer or by adversely holding
for another, resist a recovery by
his landlord: but when a disclaim
er by the tenant is known to the
landlord, the possession of the ten-
ant becomes adverse, and if the
landlord permit him to hold pos-
session for seven years thereafter,
he will be barred by the act of lim-
itations. Lea's lessee v Netherton.
$15
6. A demand of possession by the land-
lord, and a refusal to surrender it
by the tenant, on the ground that
he claims title himself, is evidence
of actual ouster.
lb.

7. An estoppel must be mutual and
bind both parties; therefore, a
lease made by a guardian for nur-
ture, not being binding upon the
infant, does not estop the persons
who entered into possession under
the lease from disavowing the
lease; or from setting up a title in
themselves; or from holding for
a third person. Ross v Cobb and
others.
463

LEASE.

Vide GUARDIAN 4, 5, 6, POSSESSION 1.

LIMITATION OF ACTION.

Vide CHANCERY 12.
EJECTMENT 2.

1. Until payment by the surety, orthe rendition of judgment against him, he is uot a "creditor" of the principal, within the meaning of the act of 1789, c. 23, limiting the time for bringing suits against executors and administrators. Marshall v Hudson Adm'x. &c. 57 2, A, was jointly bound as surety of B;

B died, and administration was granted upon his estate, and more than two years thereafter suit was brought against the administratrix of B, who pleaded the act of 1789, c. 23, limiting suits against executors, and judgment thereon was rendered in her favor. A was afterwards sued and pleaded the above facts, but the defence was overruled and judgment recovered against him as surety of B. He thereupon moved for judgment against the administratrix of B, and it was held, that he was entitled to recover. Ib.

86

7.

8.

10.

3. If the landlord suffers the time pres- 9. cribed by the act of limitations to run out, after his tenant has disclaimed by purchasing an adverse title, and claiming under it, or by any other disclaimer of tenure, with the knowledge of the landlord, the title of the landlord will be barred by the act of limitations. Lane's lessee v Osment. Such disclaimer, on the part of the 4. tenant, or those claiming under him, with the knowledge of the landlord, operates as a forfeiture of the term, and the tenant's possession becomes so far adverse, that the act of limitations will begin to run in his favor from the time of such forfeiture. Ib. 5. But the tenant can, in no case, contest or dispute the title of his landlord, within the period necessary

315 Where a defendant claims title only by seven years possession, without any color of title, he must show, under the provisions of the act of 1819, c. 23, § 2, that possession was taken in hostility to the true owner, and was so continued; in such a case he is only protected to the extent of his actual enclosure.

Ib.

433

The act of 1739, c. 23, limiting suits against executors and administrators, will bar a claim or demand which is not due at the time the executor or administrator qualified, if suit is not brought upon the claim within two years from the time it actually falls due. Trott v West, Moss & Co. Payment by an administrator of part of a demand within two years after his qualification, and a promise to pay the balance soon; is not equivalent to a request by the executor or administrator to delay bringing the suit, as is required by the fourth section of the act of 1789, c. 23 to prevent its operation. A promise by an administrator to pay a debt due from the intestate, will not prevent the operation of

the act limiting suits against ex ecutors and administrators. Ib. 12. The proviso or exception in the act, clearly means that there shall be a special request or stipulation for delay for a definite time of indulgence, during which the statute shall not operate. Ib. 13. If there be no express promise to pay a debt barred by the act of limitation, but a promise is to be raised by implication from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt, which the party is liable and willing to pay. Crowder v Nichol.

453 14. Where a party agreed to assign a

note on a third person without re-
course and the note being lost or
mislaid, he made onth before a jus-
tice of the peace, that he had lost
or mislaid the note, (which pro-
bate however, did not state to
whom the note was payable,) and
transferred this probate to the
plaintiff below: Held, that an
agreement or statement made by
him, when applied to, to amend
the probate, that he would "fix or
arrange it," was not such an ad-
mission of an existing debt, so as to
prevent the operation of the act of
limitations.
Where a judgment was obtained
against A in his lifetime, upon
which a scire facias issued against
his administrator, more than two
years after his qualification: Held,
that the act of 1789, c. 23, §4,
limiting suits against executors
and administrators is a bar to its
prosecution. Bank of The State
v, Vance's Adm'r.

LIMITATION ESTATES. Vide RULE IN SHELEY'S CASE.

Ib.

471

1. A limitation or conveyance by deed of slaves to the after born children of A, passes no title to such after born children, when they come into existence. Lillard v Rucker.

64

2. In such case it is no ground to resist

3.

4.

Ib.

a new trial, that it is a hard case upon the defendant, and that the justice of the case has been attained. In cases upon commercial law, the law of the case is always the justice of the case. Where pleadings are filed in short, and the parties elect to go to trial thereon, the court will not disturb the verdict. Smith & Nolen v Eubank. 20 Whether a "warranty" was intended or not, is a question for the jury to settle from the proof in the

74

case; and the jury having found the words; "I recommend this horse as having one good eye," to be a warranty, the court will not disturb the verdict. M'Gregor v Penn. 5. In cases where there is conflicting testimony, and the credibility of witnesses is to be weighed, this court has uniformly refused to interfere and grant a new trial. But in cases where there is not only a great preponderence of evidence on one side, but it is all on side, and that against the verdict, it will grant a new trial. iams v Brasfield.

one

Will

270

329

6. This court has repeatedly determined that in civil cases, when there is conflicting testimony, it will not reverse the judgment of the circuit court because the verdict is against evidence, unless the preponderance of evidence be great. Gibson v Gibson. 7. Where a defendant has been acquitted on some counts and convicted upon others, a motion for a new trial made by him generally, is only applicable to the count upon which he was convicted, and if the court sets aside the whole ver

333

dict, it is erroneous. Campbell v The State. 8. The defendant was acquitted upon the first and third counts but convicted on the second. He moved for a new trial which was granted, and the entire verdict set aside by the court. Upon the second trial, he moved the court to put him on trial upon the second count only; this the court refused. Upon the second trial he was acquitted on the first and second counts, and convicted on the third. Held; that it was error in the court to set aside the verdict entirely, and that plaintiff was entitled to judgment of acquittal upon the first and third counts, because upon these he was acquitted by the jury upon the first trial, and that he was also entitled to judgment of acquittal upon the second count, because he was acquitted on that count upon the se cond trial. Ib. 9. Although it has been settled in this

10.

11.

12.

State, that the sfidavit of jurors may be made the foundation of a new trial; yet it is a dangerous principle, and will not be extended one step further than it has already been carried. Hudson v The State. 408 It is a rule of law well settled, that if a jury after retiring to consider of their verdict, hear other testimony, it will form a ground for a new trial. Ib. Afidavits by jurors, that they founded their verdict upon particular parts of the testimony given in court, which particular testimony might abstractly be illegal, is not sufficient to authorise a new trial.

lb.

Where a jury had retired to consider of their verdict, and afterwards came into court to hear explanations from a witness, who stated an additional and important fact, not before stated by him, but which fact the court immediately told the jury they were to disregard: Held, that the affidavit of a juror stating that he founded his verdict entirely upon this additional fact, will not authorise a new trial. Ib.

4. In all cases taken by appeal from a justice to a court of record, matter in abatement shall not be taken advantage of in the appellate court, unless it be plead in writing, and verified by oath or otherwise, at the first term of the court to which the appeal is taken. Ib. 5. The modern and better practice in declaring upon bonds with conditions, is to set forth the condition of the bond, and assign the breach specially in the declaration. Smith & Nolen v Eubanks.

20

6. When the condition and breach of a bond of indemnity is stated in the declaration, and the plaintiff, to the plea of conditions performed, replied, concluding his replication with a verification, to which the word "rejoinder" was filed: Held, that a verdict rendered for the plaintiff would not be disturbed.

Ib.

7. The want of a similiter is cured after verdict. Ib. 8. When pleadings are filed, in short,

without being specially drawn out, and the parties elect to go to trial thereon, the court will not disturb the verdict. lb. 9. Where a contract is not negotiable or founded on a sealed instrument, the consideration upon which it was executed must be stated in the declaration. Shelton v Bruce. 24

12. To a presentment for gaming, the defendant pleaded in abatement, that the presentment was not made upon the knowledge of the grand jury, but upon information communicated by others: Held, that the plea was bad. Garret v The State. 389 13. A covenanted to pay B one hundred dollars in good bailed cotton at his gin in Hickman county on or before a given day. To a suit upon this covenant, he pleaued that he was ready on the day and at the place to deliver the cotton, but that neither B, nor any one for him was there to receive the same; Held, that the plea ought to have averred, that he was always after the day, and yet was ready to deliver the cotton. Nixon's Admr's v Bullock, Erwin & Co. 414 14. A plea of fully administered, did not aver that all the assets up to the time of filing the plea had been administered, but stated generally that the defendants have fully administered all the goods and chattels, rights and credits &c. which had come to their hands to be administered: Held, that though informal, the plea was substantially good.

Ib.

15. To an action on a covenant, by which plaintiff in error bound him‐ self to pay for certain land conveyed to him, so soon as it could be ascertained whether the same could be held under and by virtue of the vendor's conveyance, he pleaded,

1. That he did not hold said land mentioned in said deed, under said deed of conveyance.

2. That he did not on the-day of-, nor at any time before or since, ascertain that said deed of