NASHVILLE, March, 1836. Yerger V Young. The result of all the cases is, that to make a good probate there must be, not a mere historical, but a record statement, showing the character of the deed, by naming the parties, and giving some general description of the property, and showing the execution of the deed, in one instance by the acknowledgment of the bargainor, in another, by the proof of witnesses. If this be done in the record, substantially, we believe the probate will be good. We seek not, however, to give a definition in discussions of this sort; the attempt is frequently alike unsafe and impracticable. We think it results from the view which we have taken of all the cases, that the certified record of probate, now before the court, is such as to make the deed good evidence before the jury, and that it was properly received. To intend that one Jacob Young witnessed the deed, and that another Jacob Young came into court and proved it, would be going beyond the utmost limit of the cases upon this subject, and would be making an effort to exclude the probate. The grantor, the grantee, the quantity of land, the witnesses proving are all substantially stated in the record. The court are of opinion, that the words, "let it be registered," or "ordered to be registered," usual in probates, having been omitted in this case, makes no difference; the registration is not legalized by the order, but by the probate itself. It may be, too, that the innitials, "O. Rd." may mean ordered to be registered, but that we think immaterial. As to the charge of the court, on the subject of re-marking, we think it quite within the authority of the cases, heretofore decided. As to the several subordinate questions which have been somewhat touched upon, relating to notices, commissions, &c. we are unable to perceive that any error has intervened. Let the judgment be affirmed. Judgment affirmed. WHARTON, et al. vs. THOMPSON, guardian, &c. Where the principal and interest of a sealed note exceeds fifty dollars, a want or failure of consideration, cannot be inquired into, in a suit before a magistrate; the act of 1817, c. 86, only gives this jurisdiction to magistrates where the subject matter in controversy" does not exceed fifty dollars. Where a slave, in possession of the party who hired him, at the time of his heing hired, was injured, of which injury he afterwards died, but the fact was unknown to both parties, it was held, that the party could not be relieved from his contract, but must, notwithstanding the death of the boy, pay the whole amount of his hire. This was an action originally commenced before a justice of the peace, for the hire of a negro, and founded upon a note, which was as follows: "On or before the 1st of January, 1835, we, or either of us, promise to pay John Thompson, guardian of Margaret and Sarah Buchanan, fifty dollars, for the hire of Daniel, until the 25th of December, 1834, and to furnish said negro with three suits of clothes, one pair of shoes, blanket and hat; as witness our hands and seals, this 1st Jan. 1834." "WHARTON & SCOTT, [L.S.] "J. R. WHARTON." [L.S.] Upon the trial in the circuit court, defendants offered to prove, that said note was executed on or about the 25th of December, 1833, and not at the time it bears date; that said negro had been wounded previous to its execution, of which wound he died, on the 9th of January, 1834, and that plaintiffs and defendants were ignorant of the injury said negro had sustained, at the time the note was made. To the admission of which evidence, plaintiffs excepted, which objection the court sustained, and the evidence was rejected; to this opinion defendants objected, and took an appeal in the nature of a writ of error to this court. Charles Scott, for plaintiff in error. 1. Where the subject matter of a suit does not exceed fifty dollars, it may be held upon principles of equity, that parol evidence is admissible to impeach the consideration or validity of any bond or note, as well those with, as without NASHVILLE, V Thompson. NASHVILLE, seal. See 2 Scott Rev. 365; act of assembly, 1817, c. 86, March, 1836. Thompson. V Wharton § 1. The note, in this case, is for fifty dollas; the interest added makes it more; but the interest upon the note forms no part of the subject matter, but merely goes in the way of damages, as incidental to the subject matter; the interest is only damages for the detention of the debt. 2. Where there is a failure or want of consideration, a court of equity will relieve. See 1 Fonb. Equity, 370, note G. and authorities there cited: 1 Rutherford's Ins. 250 to 253: 2 Hen. & Mun. 5: Powell, on Con. 444 to 446. The case in 3 Hayw. Rep. 224, cannot apply to this case; there the negro became sick after the hiring, here it existed previous thereto. T. Washington, for defendant in error. GREEN, J. delivered the opinion of the court. The plaintiffs in error hired a negro boy from the defendant in error, for one year, commencing the 16th day of January, 1834, and executed their note under seal for fifty dollars, payable the 1st of January, 1835. Suit was commenced upon said note before a justice of the peace, and by appeal the cause was carried to the circuit court, where, on a trial, the defendant offered to prove, that about the 25th of December, 1833, the boy received a wound from a wad shot against him, of which he died about the 9th of January thereafter; that neither plaintiffs nor defendants knew of the injury at the time the note was executed, but that the plaintiffs in error had hired the boy for the year 1833, and had the control of him at the time the note was executed. To the reception of this testimony the defendant in error objected, and the court sustained the objection; to which the plaintiffs in error excepted and prosecute this appeal in error. The court did not err in rejecting this testimony. The act of 1817, c. 86, § 1, does not apply to this case. Here the subject matter in controversy does exceed fifty dollars. March, 1836. The interest is as much the subject matter of the suit as the NASHVILLE, principal. Hay. Dig. page 380, § 24. But if the amount in controversy had been under fifty dollars, the evidence would not have been a good defence to the action, and therefore was inadmissible. The boy was in the possession of the defendants below, when the contract was made, and so continued, until he died. When the boy was hired, Thompson was guilty of no fraud, as it is admitted he was ignorant of the injury the boy had received. If the parties chose to make the contract, without seeing the boy, risking the condition in which he might be, there being no fraud, they must abide by it, and are as reponsible as they would have been, had the boy received the injury of which he died, after the hiring. In that case it is settled, that they would be liable for the sum agreed to be paid. 3 Hay. Rep. 224. Let the judgment be affirmed. Judgment affirmed. Hickman V Searcy. HICKMAN VS. SEARCY'S Executors. Debt and indebitatus assumpsit are concurrent remedies upon all implied con* tracts, where the sum to be recovered is made certain, either by the contract of the parties, or by operation of law. A and B sold a tract of land and jointly covenanted to warrant and defend the title; the vendee was evicted by paramount title, and recovered a joint judgment against A and B, upon their warranty. A paid the whole of the judgment: Held, that he could sustain an action of debt, to recover from B, his propo tion of the money paid. This was an action of debt, by the defendants in error, against the plaintiff in error, in which the following facts were agreed: "Thomas Hickman and Robert Searcy, in his lifetime, sold six hundred and nine acres of land to William Outlaw, for eighteen hundred dollars, and made a deed with a joint warrantry of title, under date of 26th of February, 1805. Robert J. Nelson recovered this land of Outlaw in the month of February, 1819, by ejectment, and turned him out of possession. Robert Searcy died in 1820, having appointed Stephen Cantrell and Jesse Blackfan executors, NASHVILLE, who both proved the will and qualified in October of that March, 1836. Hickman V Searcy. - year. Outlaw's heirs sued the executors of Searcy and Thomas Hickman, upon the covenant of warrantry, and in May, 1827, recovered two thousand one hundred and one dollars, and fifty cents, damages; upon this suit the executors pleaded, fully administered, and an outstanding bond to the United States, &c., which pleas were found in favor of the executors, and judgment rendered against them quando acciderint. Upon this judgment the heirs of Outlaw sued out a scire facias against the heirs of Robert Searcy, and on the 28th day of November, 1828, recovered judgment against them for two thousand one hundred and seventy-eight dollars, and recovered also nineteen dollars thirty-two cents, the costs of the suit against the executors. This judgment against the heirs of Robert Searcy, and the judgment against Searcy's executors and Hickman, were transferred to John C. M'Lemore, and on the first of April, 1829, Stephen Cantrell, executor of Robert Searcy, paid to M'Lemore, two thousand two hundered and twenty-five dollars and nineteen cents, being the amount of the judgments, with interest up to that time. Said payment to M'Lemore was made out of the personal assets belonging to said Searcy's estate, in the hands of said Cantrell, executor, &c. The questions submitted to the court are: as 1st. Whether an action of debt can be sustained upon the above facts by Cantrell and Blackfan, as executors against Thomas Hickman? If so, whether the defendant can defend himself in the premises, by virtue of the statute of limitations; this suit having been commenced on the 2nd day of December, 1833? 2nd. Whether an action of debt in the debet and detinet will lie under the circumstances? If the court shall be of opinion upon the whole case, that the law is for the plaintiffs, then judgment is to be entered for the plaintiffs against the defendant, for eleven hundred and twelve dollars and fifty-nine cents, with interest thereon, from the 1st of April, 1829, up to the time of the rendition of the judgment, and execution to issue, &c.; but if the court should be of opinion, that the |