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HEIR AND DEVISEE.

1. On a judgment against an administrator, a sci fa. does not lie against the heirs to subject lands descended to them, to sale by execution.

Bell, Triggs & Watkins v. Robinson's heirs, 1 S. 193. 2. A decree ordering sale of property in the hands of heirs, must specify and certify it, though they were parties to the cause.

Gayle et al. v. Singleton, 1 S. 566.

3. Chancery will not entertain a bill filed by a creditor alledging a waste of the personal estate of testator by the executor, and seeking to subject the lands in the possession of the heirs and devisees to the payment of his debt; no charge of the debt being made by will on the realty, except it be averred and proved that the executor and his sureties are insolvent, and that all remedy at law has been exhaused against them.

Darrington et al. v. Borland, 3 P. 10.

4. The effect of the statute 1806, subjecting the lands of a deceased testator or intestate to the payment of his debt, destroys all distinction between a general express trust, created by will, (or an implied general trust in the devisees;) and a special trust, designating by schedule the particular debts of the deceased; and the lands are liable, no matter how devised, or in whose possession they are found, unless sold by a decree of chancery or orphan's court, or sold by the trustee under the will, and the proceeds applied to the payment of debts. Ibid.

5. But under the statute, chancery would not do more than subject the land itself, and the heirs and devisees would be entitled to retain the rents and profits which had accrued before the creditor avails himself of the sale— aliter-when the debts are charged by the will on the land. Ibid,

6. When a division of the estate could not be equitably effected without injury to the heirs, the county court has authority to order a sale. Wyman et al. v. Campbell et al. 6 P. 219.

See County and Orphan's Court.

HIGHWAYS, ROADS AND COMMISSIONERS, AND OVERSEERS OF ROADS.

1. Every water course, suited to the ordinary purposes of navigation, whether it ebbs or flows or not, is a public highway; and the owners of land bounded by any such navigable stream, can assert no private right of soil to the bed of the river beyond the low water mark, except by grant from the government. Bullock v. Wilson, 2 P. 436:

2. The authority under an act of the legislature to erect a mill on such water course, must be exercised with reference to the rule sic utere tuo ut alienam non laedas. Ibid.

3. The right to the use of the waters of a stream is common to all the owners of adjacent lands, and is incidental to the possession of the lands, and a severance of the right can only be had by consent of those interested, and the United States have no other rights as the owners of lands than is

of their

common to land holden in this State; and where they grant a part domain, only such rights as are incidental to the land pass to the purchaser. Hendricks v. Johnson, 6 P. 472.

4. The overseer of a public road is not authorized to take timber for repairs, &c., without the owners consent.

Reynolds v. Speers, 1 S. 34. 5. No appeal or certiorari lies on proceedings of commissioners of roads and revenues in laying out a road until after a final order confirming the report of a jury. Smith v. Com'rs. of Roads, 1 S. 183.

6. While the construction of roads in the vicinity of a turnpike established by charter, will not be permitted, when intended to diminish the profits of such turnpike, yet a community in the neighborhood of such turnpike will not be restrained from the construction of such roads, absolutely demanded by the situation of the country and the wants of the neighborhood. Hall et al. v. Ragsdale, 4 S. & P. 252. 7. When process is issued under the statute, for obstructing roads, returnable to a particular day in court, such process may be continued from day to day, until it is finally heard and disposed of.

Rathers & Wife v. State, 1 P. 132. 8. It is not error that such process is issued in the name of the State, for the use of the county.

Ibid. 9. And in such proceedings against man and wife, where he is acquitted and she convicted, the judgment is bad, and will be reversed. Ibid. 10. The streets in an incorporated town, are its highways-subject in general to such improvements and alterations as its legislative authority may prescribe, with a due regard to individual interest.

State v. Mayor and Aldermen of Mobile, 5 P. 279. 11. A city corporation would not be authorized to exercise the right of appropriating streets, or to narrow or widen them, unless vested with such power expressly by its charter, or in carrying out an incident to such express delegation.

Ibid.

12. Any obstruction in a highway or street, tending to the annoyance of persons living near them, or which renders the passage through such highway or passage more difficult, and which thus increases the danger of injury to persons or property, would be a nuisance within the meaning of the term.

Ibid.

13. At common law the question of nuisance as to a highway depends upon the fact, whether the passage through such highway is rendered less commodious-thus the erection of a market house in the centre of a streetthe highway of a city, by a city corporation, if interfering with a commodious passage through such street, would be a nuisance. Ibid.

14. In such case chancery might well entertain a bill in the nature of an information filed by the State's counsel, for the object of affording redressand this, independent of the concurrent common law jurisdiction of indictIbid.

ment.

15. The jurisdiction of chancery is clearly defensible when the fact of the nuisance is beyond a doubt; and even when this is questionable, chancery sometimes affords relief by way of injunction, until a trial at law, when its denial would produce great public inconvenience. Ibid.

16. When by the terms of a private statute, a privilege was granted to . certain persons to erect a mill upon a river, which privilege was to be subject in a certain event, to a revocation, and the judge of the county court, on the happening of the contingency, was vested with power to abate the nuisanceit was held that such statute did not divest the circuit court of its ordinary jurisdiction in the abatement of the nuisance, by indictment.

State v. Bell, 5 P. 365.

17. By the common law, all proprietors to lands have the same rights to waters flowing through their domains, and one cannot be permitted to use them as to annoy those above or below him, and successive actions lie in favor of those injured by impediments placed in the stream, against the wrong doer, to effect their removal. Hendrick's v. Johnson, 6 P. 472.

18. A writ of error will not lie to revise the judgment of the court of commissioners of roads and revenue, in relation to a refusal to lay out a road, although cases may arise in which an inproper action of that court, if an injury was about to result to an individual, might be controlled by the court of chancery. Hill v. Bridges, 6 P. 197.

HUSBAND AND WIFE.

1. In an action against-service of writ on husband is sufficient.

Wyn & wife v. Williams, A. R. 136. 2. Confession of judgment, by husband and wife-during coverture, on a devastavit charged to have been committed by them, may be avoided after the husband's death, by writ of error. Stevens v. Dubury, A. R. 379. 3. The husband's representative is not entitled to the personal property and allows an action of the wife, unless reduced to the possession by the husband, during coverture. Johnson, adm. v. Wren, 3 S. 172.) Mayfield v. Clifton, 3 S. 375.) 4. And such possession must be the possession of the husband; his possession as agent or trustee for another is insufficient. Ibid. Hogan v. Bell et ux. 4 S. & P. 286. 5. Or, as administrator. Mayfield v. Clifton, 3 S. 375. 6. The written acknowledgment by husband of a note executed by the wife, though the note may have been originally void, becomes by such acknowledgment, under the statute of this State, the note of the husband; and it is not necessary to set out in the declaration, any consideration on the part of the husband. Phillips v. Scoggins, 1 S. & P. 28. 7. A deed to a feme covert, and the heirs of her body, implying the creation of an estate tail in personal property, vests in her such an absolute estate, as will be subject to the disposal of the husband and liable for his debts.

Harkins et al. v. Coulter et al. 2 P, 463.

8. Equity will give effect to the terms of a deed conveying property to a feme covert for her exclusive use, even when no trustees are nominated, and will regard the husband a trustee so far as to enforce a compliance with the intentions of the donor. But the intention to create a trust estate for the wife must distinctly appear. Ibid.

9. When a deed of personal property conveying the same to the wife, stipulated that the property was given for the joint use, behoof and support, of husband and wife, and subject to their joint possession; this did not create such a seperate and distinct estate as excluded the husband's marital rights, and free it from his debts.

Ibid.

10. If husband and wife enter into bond, not stipulating a promise, to pay out of the wife's separate estate, for the payment of the wife's debt. Chancery will subject such separate estate to the payment of the bond, upon proof that the bond was given for the wife's own debt, and without a pursuit of the co-obligor at law.

Forrest et al. v. Robinson, ex'r, 4 P. 44.

11. The deposition of a husband, taken in a chancery cause, in which the wife is a party, is not competent as testimony either for or against her.

Sadler et ux. et al. v. Houston & Gillispie, 4 P. 208.

12. A note signed by husband and wife, under an admission by her, that it is given for their mutual debt and accompanied by her written undertaken to discharge it, is a proper charge in equity upon her seperate estate, as secured by her anti-nuptial settlement. Ibid. 13. Such note, after repeated admissions of a liability, cannot be defeated in the hands of an assignee, by allegations of the failure of consideration.

Ibid.

14. An agreement made between husband and wife before marriage, whereby he relinquished all right to her property and agreed she should retain it to her own use, does not bar the right of curtesy, in the husband. Smoot & Nicholson, v. Lecatt, 1 S. 590. 15. Nor does an injunction obtained by the wife, founded on such an agreement, restraining the husband from intermeddling with her property, and made perpetual. Ibid.

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16. Nor a decree of divorce a mensa et thoro, pronounced against the husband. Ibid. 17. Possession of the wife of real estate, under claim of title, though for less than twenty years, and a devise or descent cast, is sufficient presumptive evidence of a fee in the wife, to sustain the husband's claim to curtesy.

Ibid. 18. A plaintiff claiming as tenant by the curtesy, may recover possession of the premises, in the ordinary form of an action of trespass to try titles. Rochon v. Lecatt, 1 S. 609.

19. A previous possession with claim of title, though for less than twenty years, with a descent cast, or devise, is sufficient prima facie evidence of title in the wife, to sustain the claim of the husband to curtesy, and is sufficient to recover in ejectment, against a mere trespasser. Ibid.

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20. To entitle a husband to the personal property of his wife, he must have reduced it into possession during the coverture.

Mayfield. Clifton, 3 S. 375. 21. And such possession must be a possession as husband: a possession as administrator, in right of his wife, is insufficient. Ibid. 22. By the marriage of a feme sole administratrix, the husband becomes joint administrator with her, and if the husband sue or be sued, as administrator, the wife must be joined with him.

Williamson et al. v. Hill, 6 P. 184. 23. The decree of the orphans' court, against such administrator cannot be regular, unless the wife be embraced in it.

Ibid.

24. In cases where the administrator may be charged in his own right, the action lies against the husband alone. Ibid.

25. Where one comes into an administration in right of his wife, he cannot urge against the claim of a distributee, the invalidity of the grant of administration or the jurisdiction of the court making the grant, which the wife had sought, and which both had exercised. By the acceptance and exercise of the trust the jurisdiction is admitted and cannot afterwards be controverted. Ibid.

See Curtesy-"Devise, Legacy and Bequest"--Dower-Executors and

Administrators.

INDIANS AND INDIAN LANDS.

1. The Statute 1820, extending the jurisdiction of the circuit court of Cotco (now Morgan) county &c. to all the tract of country belonging to the Cherokee Indians, vested in the circuit court, the jurisdiction only of crimes and misdemeanors committed within those tracts of Indian country; and did not extend thereto the civil jurisdidiction of justices of the peace in cases of forcible entry and detainer. Thomas v. Adams, 2 P. 188.

2. The statute 1832, extending the jurisdiction of the State over the Cherokee nation, is not entitled to a retro-active operation so as to authorize proceedings for a forcible entry and detainer. Ibid.

3. The reservation of lands to the Cherokee Indians, under the 8th article of the treaty of 1817, enures as a life estate to the reservee, only upon compliance with the condition of continuance thereon, as stipulated; and on failure of this, the fee-simple reverts to the United States immediately, and the expectant estate of the reservee's wife and children therein is at once destroyed. Kennedy & Moreland v. heirs of M'Cartney, 4 P. 141. 4. That a reservee has complied with the requisites of the treaty in making his selection, registering his name and cetera, may be proved by the deposition of the Cherokee agent, regularly taken. Ibid.

5. A reservee cannot make any stipulation for a lease beyond his removal from the land or the extent of his life, though it seems a lease might be effected of a portion of the land for a time beyond those periods, if possession is retained of the residue. Ibid.

6. The act of Congress, 29 May, 1830, which relinquishes to Conaleskee, a Cherokee Indian and his heirs, all the right of reversion of the United States, in and to a certain tract of land, contemplated an immediate sale of the same by him, and not a mere possession for the benefit of a previous purchaser. Ibid,

7. When a title consisted of a claim under the deed of a Creek Indian to lands selected under the treaty of the 24th March, 1832, which deed was made within five years after the treaty-it was held that this was not valid, the contract not having been approved of by the President, and that a court of chancery could not enforce the contract.

Herring v. McElderry, 5 P. 161. .

8. Under the Creek treaty of 1832, an Indian reservee, when his land had been selected and set apart by location, became entitled to the possession, until disposed of by him according to the terms of the treaty, or voluntarily relinquished or abandoned; and this right to the possession was a legal estate which could have been enforced in a court of law.

Jones' & Parsons' heirs v. Inge & Mardis' heirs, 5 P, 327. 9. By the provisions of the treaty, the Indian was authorized to convey his title and interest in the land selected with the approval of the President of the United States, and after the approval, the contract of conveyance became valid, vesting in the grantee all the estate vested in the Indian by the treaty and his location.

Ibid.

10. The action of the President in relation to such contracts is final and conclusive, and precludes any inquiry in a collateral way into the identity, or the capacity of the Indian parting with his interest, unless in a suit in which one of the parties claims under or through him-and quere-how far such party might be permitted to contest the recitals in a patent? Ibid.

11. A contract for the sale of lands by an Indian reservee, located under

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