Volume 11 — Kentucky Reports

<p>A DECLARATION IN COVENANT HELD GOOD ON GENERAL DEMURRER, AND PLEAS IN THE SAME ACTION HELD BAD.</p> <p>1. Where there has been a part performance by the plaintiff of the condition precedent, on which the duty on the part of the defendant is by the covenant, to arise, and such partial performance has been accepted by the defendant, the plaintiff’s action is sustainable on the averment and proof of those facts. 1.</p> <p>2. Where the defendant files a general demurrer to the plaintiff’s declaration, and at the same time files pleas in bar which are demurred to, the court ought to decide first on the demurrer to the declaration. 3.</p> <p> 3. Where a contract contains some covenants which are precedent conditions to be performed by the plaintiff, and some which are not, a plea alleging generally, that the plaintiff did not perform the covenants in said writing, which were to be performed by him, is bad. 4. </p> <p>4. Where more breaches than one are assigned, a plea answering only a single breach, however good it may be for that breach, is not a plea to the whole action, and therefore bad. 5.</p> <p>5. Where the party bound has the same means of ascertaining the event on which his duty arises, as the person to whom he is bound has, notice is not necessary. 6.</p> <p>Statement of the case.</p> <p>Where there has been a part performance by the plaintiff of the condition precedent, on which the duty on the part of the defendant by the covenant, to arise, and such partial performance has been accepted by the defendant, the plaintiff's action is sustainable on the averment and proof of those facts.</p> <p>Where the defendant files a general demurrer to the plaintiff’s declaration, and at the same time files pleas in bar which are demurred to, the court ought to decide first on the demurrer to the declaration.</p> <p>Where a contract contains some covenants, which are precedent conditions, to be performed by the plaintiff, and some which are not, a plea alleging generally that the plaintiff did not perform the covenants in said writing which were to be performed by him is bad.</p> <p>Where more breaches than one are assigned a plea answering only a single breach however good it may be for that breach, is not a plea to the whole action, and, therefore, bad.</p> <p>Where the party bound has the same means of ascertaining the event on which his duty arises, as the person to whom he is bound has, notice is not necessary.</p>

<p>1. A notice to the sheriff, for failing to return an execution, is sufficiently served by permitting him to read it; delivering him a copy, is not necessary. 1.</p> <p>2. Such notice is not process, and therefore it may be served on a day of general election. 2.</p> <p>3. A laying over or continuing such motion to a subsequent day of the same term, amounts only to a special imparlance; consequently, it is not a waiver of any matter in abatement, which the defendant in the motion could have urged on the appearance day. 3.</p> <p>4. The act of 1809, respecting filing pleas in abatement, does not apply to motions. 4.</p> <p>5. The pendency of another motion, previously made and still depending, for the same default, is proper matter in abatement. 4.</p> <p>Statement of the case.</p> <p>A notice to the sheriff for failing to return an execution, is sufficiently served by permitting him to read it; delivering him a copy is not necessary.</p> <p>Such notice is not process and, therefore, it may be served on a day of general election.</p> <p>A laying over or continuing such motion to a subsequent day of the same term, amounts only to a special imparlance; consequently, it is not a waiver of any matter in abatement, which the defendant in the motion could have urged on the appearance day.</p> <p>The act of 1809, respecting filing pleas in abatement, does not apply to motions.</p> <p>The pendency of another motion, previously made and still depending for the same default, is proper matter in abatement.</p>

<p>1. A bond given in consideration of the sale of the office of deputy sheriff is void. 1.</p> <p>2. It is immaterial whether the fact appears on the face of the bond, or by averment in a plea which is demurred to ; the law is the same. 2.</p> <p>Statement of the case.</p> <p>A bond given in consideration of the sale of the office of deputy sheriff, is void.</p> <p>It is immaterial whether the fact appears on the face of the bond or by averment in a plea which is demurred to; the law is the same.</p>

<p>1. A purchaser in possession under his purchase, buying in an adverse claim, cannot claim a rescision of the contract made with his first vender, on the ground of the validity of the after acquired title, and the invalidity of the first, without surrendering back the possession to his first vender, and taking the chance of opposing the last acquired title to the first. 1.</p> <p>2. De minimis lex non curat. 1.</p> <p>3. Under what circumstances mutual demands, connected with the same transaction, will not be set-off, the one against the other. 2.</p> <p>4. What a juror may say, after his discharge, respecting the principles on which their verdict was made up, although it is said immediately afterwards, and in the presence of the court, is not evidence. 3.</p> <p> 5. The hirer of slaves is chargeable with physicians' fees and the expences of their sickness, unless there is an express agreement to the contrary between him and the owner. 3. </p> <p> Statement of the case. </p> <p>Statement of the case</p> <p>A purchaser in possession under his purchase, buying in an adverse claim, cannot claim a rescision of the contract made with his first vender, on the ground of the validity of the after, acquired title, and the invalidity of the first, without surrendering back the possession to his first vender, and taking the chance of opposing the last acquired title to the first. De minimis lex non curat</p> <p>Under what circumstances mutual demands connected with the same transaction, will not be set off, the one against the other.</p> <p>What a juror may say after his discharge, respecting the principles on which their verdict was made up, although it is said immediately afterwards, and in the presence of the court, is not evidence.</p> <p>The hirer of slaves is chargeable with physicians' fees and the expences of their sickness, unless there is an express agreement to the contrary, between him and the owner.</p>

<p>1. The purchaser of land at a Sheriff’s sale, may transfer his right to another person and become security for such person, in the bond given for the purchase money, instead of principal. 1.</p> <p>2. The bond and the sheriff’s return is conclusive as to the fact who was the purchaser; and evidence tending to shew that another was, or the person there stated to be the purchaser, was not, is inadmissible on a motion to set aside the sale. 2.</p> <p>3. If laws allowing property executed to be sold on a credit, are unconstitutional, they do no injury to the debtor ; consequently, a sale made under them cannot be set aside on his application, nor the bonds given for the purchase money, quashed. 3.</p> <p>Statement of the case.</p> <p>The purchaser of land at a sheriff’s sale, may transfer his right to another person and become security for such person, in the bond given for the purchase money, instead of principal.</p> <p>The bond and the sheriff’s return is conclusive as to the fact who was the purchaser; and evidence tending to show that another was, or the person there stated to be the purchaser was not, is inadmissible on a motion to set aside the sale.</p> <p>If laws allowing property executed to be sold on a credit, are unscontitutional, they do no injury to the debtor; consequently, a sale made under them cannot be set aside on his application, nor the bonds given for the purchase money, quashed.</p>

<p>1. A purchaser cannot sustain a motion to quash a sale of property under execution on credit, admitting that the laws authorising it to be sold on credit are unconstitutional. 1.</p> <p>2. Wherever, on a motion to quash a bond given in consequence of a sale under execution, the exception is in the nature of a plea of non est factum, as denying the authority of the attorney who executed it, where it purports to have been executed by an attorney ; an affidavit denying the execution of the bond is necessary. 2.</p> <p>3. Where a bond given for the purchase money, under a sale by execution, is for too much, the excess ought to be credited, but the bond ought not to be quashed. 3.</p> <p>Statement of the case.</p> <p>A purchaser cannot sustain a motion to quash a sale of property under execution on credit, admitting that the laws authorizing it to be sold on credit, are unconstitutional.</p> <p>Wherever, on a motion to quash a bond given in consequence of a sale under execution, the exception is in the nature of a plea of non est factum, as denying the authority of the attorney who executed it, where it purports to have been executed by an attorney ; an affidavit denying the execution of the bond is necessary.</p> <p>Where a bond given for the purchase money under a sale by execution, is for too much, the excess ought to be credited; but the bond ought not to be quashed.</p>

<p>1. The substantial requisites of a declaration on a constable’s bond, for failing to pay over money collected by execution. 1.</p> <p>2. A circuit court has jurisdiction in such case, although the sum collected is less than fifty dollars ; because, in such action, suit is brought and judgment rendered for the penalty of the bond. 2.</p> <p>3. But of an action of assumpsit against the constable, where the sum collected did not exceed fifty dollars, the circuit court would not have jurisdiction. 2.</p> <p>Statement of the case</p> <p>The substantial requisites of a declaration on a constable’s bond for failing to pay over money collected by execution.</p> <p>A circuit court has jurisdiction in such case, although the sum collected is less than $50; because, in such action, suit is brought and judgment rendered for the penalty of the bond.</p> <p>But of an action of assumpsit against the constable, where the sum collected did not exceed $50, the circuit court would not have jurisdiction.</p>

<p>A JUDGMENT OF THE INFERIOR COURT, OVERRULING A MOTION FOR A NEW TRIAL, REVERSED.</p> <p>1. Where, on an application for a new trial, the party shows that he could have obtained a continuance, if he had been present, and sufficiently accounts for his absence, a new trial ought to be granted. 1.</p> <p>2. A father or husband is not bound to abandon a child or wife in time of sickness and apprehended death, either to attend the trial of a civil suit, or to make application for a continuance. 2.</p> <p>Statement of the case.</p> <p>Where, on an application for a new trial, the party shows that he could have obtained a continuance, if he had been present, and sufficiently accounts for his absence, a new trial ought to be granted.</p> <p>A father or husband is not bound to abandon a child or wife in time of sickness and apprehended death, either to attend the trial of a civil suit, or to make application for a continuance of it.</p>

<p>1. A confession of judgment, taken and recorded in the usual form, admits the law, as well as the facts, to be against the party confessing. 1.</p> <p>2. But the confession of the party, although made in court and recorded, is not the judgment of the court ; that ought to follow the record of the confession. Nor will the recording of the confession, without an entry of judgment, authorise the issuing of an execution. 1.</p> <p>3. Where the confession does not determine the extent of the recovery, that must be ascertained by the court, and not by the clerk or sheriff. 2.</p> <p> 4. An instance of a confession and an agreement of record, held valid, but on which no execution could issue, without a further act of the court. 3. </p> <p>Statement of the case.</p> <p>A confession of judgment taken and recorded in the usual form, admits the law as well as the facts, to be against the party confessing.</p> <p>But the confession of the party, although made in court and recorded is not the judgment of the court; that ought to follow the record of the confession ; nor will the recording the confession without an entry of judgment, authorize the issuing of an execution.</p> <p>Where the confession does not determine the extent of the recovery, that must be ascertained by the court and not by the clerk or sheriff.</p> <p>An instance of a confession and an agreement of record held valid, but on which no execution could issue without a further act of the court.</p>

<p>1. Where a note is given for the payment of a sum certain in money, with a permission to the defendant to discharge it in bank paper, it seems that the declaration ought to contain an averment that it was not paid in bank paper. 1.</p> <p>2. An action of debt cannot be maintained on a note for the payment of a liquidated sum in bank notes. 2.</p> <p>Statement of the case.</p> <p>Where a note is given for the payment of a sum certain in money, with a permission to the defendant to discharge it in bank paper, the declaration ought to contain an averment that it was not paid in bank paper.</p> <p>An action of debt cannot be maintained on a note for the payment of a liquidated sum in bank notes.</p>

<p>1. The mere continuance in possession of the premises, by a tenant, after the expiration of his lease, is not a refusal to restore the possession ; nor is it a fact from which the jury may lawfully infer a refusal. 1.</p> <p>2. Acts may be done by the tenant which will be equivalent to a refusal, although there should be no refusal in fact ; and on proof of those acts, he would be liable to the consequences of a forcible detainer, 1.</p> <p>3. Evidence proving that the tenant had, after the expiration of his lease, taken another term, from one whom the plaintiff had authorised to lease, is proper in a traverse in forcible detainer. 2.</p> <p>Statement of the case.</p> <p>The mere continuance in possession of the premises by a tenant after the expiration of his lease, is not a refusal to restore the possession; nor is it a fact from which the jury may lawfully infer a refusal.</p> <p>Acts may be done by the tenant which will be equivalent to a refusal, altho’ there should be no refusal in fact, and on proof of those acts he would be liable to the consequences of a forcible detainer.</p> <p>Evidence proving that the tenant had, after the expiration of his lease, taken another term from one whom she plaintiff had authorised to lease, is proper in a traverse in forcible detainer.</p>

<p>1. A plea of justification, in an action of slander, which does not justify all the actionable words charged in the declaration, is bad on general demurrer. 1.</p> <p>2. Where a plea of justification has been held bad on demurrer, and the defendant does not ask leave to amend, it, or plead de novo, he is not entitled to a continuance, on account of the absence of a witness, whose testimony would go merely to support a plea of justification. 2.</p> <p>3. Where the plaintiff in an action of slander, with a view of proving malice, gives in evidence words not actionable, the defendant may prove the truth of such words. 3.</p> <p>4. A motion for a new trial, made on the ground of having discovered new witnesses to the facts in issue, made and overruled. 4.</p> <p>Statement of facts.</p> <p>A plea of justification in an action of slander, which does not justify all the actionable words charged in the declaration, is bad, on general demurrer.</p> <p>Statement of facts.</p> <p>Where a plea of justification has been held bad on demurrer, and the defendant does not ask leave to amend it or plead de novo, he is not entitled to a continuance on account of the absence of a witness whose testimony would go to support a plea of justification</p> <p>Statement of facts.</p> <p>Where the plaintiff in an action of slander, with a view of proving malice, gives in evidence words not actionable, the defendant may prove the truth of such words.</p> <p>A motion for a new trial made on the ground of having discovered new witnesses to the facts in issue, made and overruled.</p>

<p>1. On an appeal from the judgment of a Justice of the Peace to the circuit court, no judgment ought to be given in favor of the plaintiff before the justice, if the case was not within his jurisdiction. 1.</p> <p>2. A justice has not jurisdiction of a motion against a constable for failing to return an execution for §42 ; the act authorizing such motion, having been temporary and expired. 1.</p> <p>Statement of the case</p> <p>On an appeal from the judgment of a justice of the peace to the circuit court, no judgment ought to be given in favor of the plaintiff before the justice, if the case was not within his jurisdiction.</p> <p>A justice has not jurisdiction of a motion against a constable for failing to return an execution for $42; the act authorising such motion, having been temporary and expired.</p>

<p>The answer of a single witness, unaided by corroborating circumstances, not available against an answer in chancery. 1.</p> <p>Statement of the case.</p> <p>The answer of a single witness, unaided by corroborating circumstances, not available against an answer in chancery.</p>

<p>1. What evidence sufficient to falsify an answer in chancery. 1.</p> <p>2. The fact of a sale being made of a tract of land in gross, instead of by the acre, is no bar to relief where the vender had knowingly and fraudulently, represented the tract to contain considerably more than it did. 2.</p> <p>3. That the deficiency was of a small quantity, is no bar to relief, if the truct was so small that the deficiency bears a considerable proportion to the whole tract. 2.</p> <p>4. The maxim, caveat emptor, is not to be applied so as to protect the vender in knowingly defrauding the vendee, as to the quantity of the land sold. 3.</p> <p>5. Where the vender has conveyed to a third person, with a view of keeping the land from being sold under executions against himself, and enabling him to convey to the vendee, when payment shall be made of the purchase money, the person to whom it is so conveyed, is a necessary party, unless he shall, by deed, acknowledged according to law, have conveyed to the vendee. 4.</p> <p>Statement of the case.</p> <p>What evidence sufficient to falsify an answer in chancery.</p> <p>The fact of a sale being made of a tract of land in gross, instead of by the acre, is no bar to relief, where the vender had knowingly and fraudulently represented the tract to contain considerably more than it did.</p> <p>That the deficiency was of a small quantity, is no bar to relief, if the tract was so small that the deficiency bears a considerable proportion to the whole tract.</p> <p>The maxim, caveat emptor, is not to be applied so as to protect the vendor in knowingly defrauding the vendee as to the quantity of the land sold.</p> <p>Where the vender has conveyed to a third person, with a view of keeping the land from being sold under executions against himself and enabling him to convey to the vendee when payment shall be made of the purchase money, the person to whom it is so conveyed, is a necessary party, unless he shall by deed acknowledged according to law, have conveyed to the vendee.</p>

<p>1. The penalty of 30 per cent. given against the sheriff for failing to return an execution for more than one month, cannot be recovered by an action on his bond, but by motion only. 1.</p> <p>2. But if the defendant files a general demurrer to the declaration on the bond, assigning breaches which may properly be assigned, and also claiming the 30 per cent. judgment ought to be given for the plaintiff. 1.</p> <p>3. The question, on a general demurrer to the declaration, is not, whether the plaintiff is entitled to the whole of what he demands ; but whether he is entitled to any part of it. 2.</p> <p>Statement of the case.</p> <p>The penalty of 30 per cent. given against the sheriff failing to return an execution for more than one month, cannot be recovered by an action on his bond; but by motion only But if the defendant files a general demurrer to the declaration on the bond, assigning breaches which may properly be assigned, and also claiming the 30 per cent judgment ought to be given for the plaintiff.</p> <p>The question on a general demurrer to the declaration, is not whether the plaintiff is entitled to the whole of what he demands ; but whether he is entitled to any part of it.</p>

<p>1. Where the person who has lost money at unlawful gaming, executes his note to a third person, for the amount, and such person pays the winner an adequate consideration therefor, the note is not within the statute, and therefore is valid. 1.</p> <p>2. That the person to whom the note was given, had full knowledge of the whole transaction, will not alter the case ; for as the note is not within the statute, such knowledge cannot put it within. 1.</p> <p>3. Such note is, between the parties to it, on a consideration lawful and valuable. 2.</p> <p>Statement of the case.</p> <p>Where the person who has lost money at unlawful gaming, executes his note to a third person for the amount, and such person pays the winner an adequate consideration therefor, the note is not within the statute, and therefore is valid.</p> <p>That the person to whom the note was given had full knowledge of the whole transaction, will not alter the case ; for as the note is not within the statute, such knowledge cannot put in within. Such note is between the parties to it, on a consideration lawful and valuable.</p>

<p>Where a bill is brought against resident and non-resident defendants, asserting, the same equity against both; the resident defendants answer, deny all the facts on which the equity must depend, and require proof ;— against the non resident defendants the bill is taken pro confesso ;—there can be no decree even against them, without proof of the material allegations of the bill. 1.</p> <p>Statement of the case.</p> <p>Where a bill is brought against resident and non resident defendants, asserting the same equity against both ; the resident defendants answer, deny all the facts on which the equity must depend, and require proof,—against the non resident defendants the bill is taken pro confesso ; there can be no decree even against them, without proof of the material allegations of the bill.</p>

<p>1. The decision of a court of competent jurisdiction against the validity of a particular claim to real estate is evidence against a subsequent purchaser of that claim. 1.</p> <p>2. Lands devised may be sold under execution on a judgment obtained against the devisee as heir at law of the devisor. 1.</p> <p>3. Lapse of time does not operate against the holder of a legal title, filing his bill to extinguish an adversary claim, to the extent that it does against a complainant filing a bill demanding a surrender of the legal title from the holder of it. 2.</p> <p>4. The presumption which arises from lapse of time, is barely a presumption of fact, which may be repelled by proof of other incompatible facts. 3.</p> <p>Statement of the case.</p> <p>Statement of the case</p> <p>The decision of a court of competent jurisdiction, against the validity of a particular claim to real estate, is evidence against a subsequent purchaser of that claim.</p> <p>Lands devised may be sold under execution on a judgment obtained against the devisee, as heir at law of the devisor.</p> <p>Lapse of time does not operate against the holder of a legal title, filing his bill to extinguish an adversary claim to the extent that it does against a complainant filing a bill, demanding a surrender of the legal title from the holder of it.</p> <p>The presumption which arises from lapse of time, is barely a presumption of fact, which may be repelled by proof of other incompatible facts.</p>

<p>1. That the claim of the plaintiff in ejectment has never been listed for taxation, affords no defence to the defendant, unless the plaintiff’s title has been vested in the commonwealth by inquest of office.</p> <p>2. The act of 1801 on the subject of forfeiture, expounded.</p> <p>Statement of the case.</p> <p>2 Dig 549.</p>

<p>1. That a deed of gift was obtained by one son from the father, by a false and fraudulent representation, is not an available defence in an ejectment, for another son, who claims the same land by devise from their common father. 1.</p> <p>2. Where there is such fraud in the execution of a deed, as to render it void in toto, it is available, as a defence at law ; but where the fraud is in obtaining the deed, and where the deed is good for part of the land, a court of equity is the only tribunal competent to give the appropriate relief. 2.</p> <p>Statement of the case.</p> <p>That a deed of gift was obtained by one son from the father by a false and fraudulent representation, is not an available defence in an ejectment for another son, who claims the same land by devise from their common father.</p> <p>Where there is such fraud in the execution of a deed as to render; it void in toto, it is available as a defence at law; but where the fraud is in obtaining the deed, and where the deed is good for part of the land, a court of equity is the only tribunal competent to give the appropriate relief.</p>

<p>1. A man may maintain an action of slander, for words charging him with having been guilty of fornication. 1.</p> <p>2. A similiter is no response to a plea of the statute of limitations, and such a state of pleading is sufficient cause for the reversal of the judgment. 2.</p> <p>Statement of the case</p> <p>A man may maintain an action of slander for words charging him with having been guilty of fornication.</p> <p>1 Dig. 264.</p> <p>A similiter is no response to a plea of the statute of limitations ; and such a state of pleadings is sufficient cause for the reversal of the judgment.</p>

<p>1. Parol evidence of an agreement that the dividing line between two tracts of land, should thereafter occupy a position different from what had been theretofore considered its true position, is inadmissible, in an ejectment between the proprietors of the two tracts. 1.</p> <p>2. In this case, the court do not decide what would have been the effect of an admission made at the time the agreement was entered into, that the ancient line was marked wrong, and that the true line was, and always had been more favorable to the plaintiff in the ejectment, than the reputed line was. 2.</p> <p>Statement of the case.</p> <p>Parol evidence of an agreement that the dividing line between two tracts of land should thereafter occupy a position different from what had been theretofore considered its true position, is inadmissible in an ejectment between the proprietors of the two tracts.</p> <p>1 Dig. 312.</p> <p>1 Dig. 617.</p> <p>In this case, the court do not decide what would have been the effect of an admission made at the time the agreement was entered into, that the ancient line was marked wrong, and that the true line was, and always had been, more favorable to the plaintiff in the ejectment, than the reputed line was.</p>

<p>A DECLARATION IN ASSUMPSIT, HELD TO SHOW NO CAUSE OF ACTION.</p> <p>1. Where a man has, by his own contract, become morally and legally bound to do an act, he cannot maintain an action on the promise of a third person, afterwards made, to pay him, for doing it. 1.</p> <p>2. A consideration which is neither prejudicial to the promisee, nor beneficial to the person promising, cannot, according to the well settled principles of the common law, uphold a promise made thereon, 1.</p> <p>Statement of the case.</p>

<p>1. Where a man enters into a covenant to transact business in a foreign country, a notarial certificate of his being a citizen of the United States, &c. such as is usually obtained by persons going abroad, is not evidence for him of his having made preparations for leaving the United States. 1.</p> <p>2. A passport, made out by a consul of the United States, residing in a foreign country, permitting such person to return from that country to the United States, is not evidence that he has been in such foreign country. 1.</p> <p>3. Facts of the above character are completely susceptible of proof by witnesses ; and as a consul is not a judicial officer, there is no reason for substituting his certificate in lieu of depositions, for the proof of them. 2.</p> <p>Statement of the case.</p> <p>Statement of the case</p>

<p>1. The validity of an entry for land discussed, but not decided.</p> <p>2. A surveyor’s report of the complainant’s claim, as laid down according to his directions, without a copy of his patent or original survey, is no evidence of his boundary ; and consequently, is no evidence of the interference of his claim with that of the defendant. 2.</p> <p>Statement of the case.</p> <p>The validity of an entry for land discussed, but not decided.</p> <p>A surveyor’s report of the complainant’s claim, as laid down according to his directions, without a copy of his patent, or original survey, is no evidence of his boundary, and, consequently, is no evidence of the interference of his claim, with that of the defendant.</p>

<p>1. Where a note purports, on the face of it, to have been given by a plurality of defendants, and suit is brought against one only, advantage cannot be taken of it, otherwise than by plea in abatement. 1.</p> <p>2. Where a plea in abatement states that the note was executed by another joint obligor, who is dead, the plea itself shows that the suit is properly brought against the survivor. 2.</p> <p>Statement of the case.</p> <p>Where a note purports on the face of it, to have been given by a plurality of defendants, and suit is brought against one only, advantage cannot be taken of it, otherwise than by plea in abatement.</p> <p>Where a plea in abatement states, that the note was executed by another joint obligor, who is dead, the plea itself shows, that the suit is properly brought against the survivor:</p>

<p>AN INQUIRY WHETHER THE INFERIOR COURT HAD PROPERLY CARRIED INTO EFFECT A DECREE OF THE COURT OF APPEALS.</p> <p>1. After a decision of a cause on the merits, evidence ought never to be introduced calculated to affect the rights of the parties. 1.</p> <p>Statement of the case.</p> <p>After the decision of a cause on the merits, evidence ought never to be introduced, calculated to affect the rights of the parties.</p>

<p>1. A court of equity ought not to decree the land to one of the contending parties, and the title to the same land to the other. 1.</p> <p>2. Where the main object of a suit in chancery is to obtain a division of lauds, a decree directing the costs to be paid equally by the complainant and defendants, is proper. 2.</p> <p>Statement of the case.</p> <p>A court of equity ought not to decree the land to one of the contending parties, and the title to the same land to other.</p> <p>Where the main object of a suit in chancery, is to obtain a division of lands, a decree directing the costs to be paid equally by the complainant and defendants, is proper.</p>

<p>A order appointing viewers of a road, “ to view and report, truly and impartially, &c. as the applicant for the road should direct,” is improper, and all proceedings under it illegal.</p>

<p>1. Where it is impossible for the vender of land to comply with his contract, it ought to be cancelled. 1.</p> <p>2. A court of equity cannot compel him to convey other lands of greater value in lieu of those which he contracded to convey, and cannot. 2.</p> <p>3. When the title of the man under whom possession of real estate was acquired, is completely extinguished, the possessor is accountable to the actual owner, and not to the one from whom he acquired the possession, for the rents and profits afterwards accruing. 3.</p> <p>Statement of the case.</p> <p>Statement of the case</p> <p>Where it is impossible for the vender of land to comply with his contract, it ought to be cancelled.</p> <p>A court of equity cannot compel him to convey other lands of greater value, in lieu of those which he contracted to convey, and cannot.</p> <p>When the title of the man under whom possession of real estate was acquired, is completely extinguished, the possessor is accountable to the actual owner, and not to the one from whom he acquired the possession, for the rents and profits afterwards accruing.</p>

<p>1. The jurisdiction of courts of chancery, assumed on the ground of trust, ought to be confined to controlling legal rights, vested and remaining in trustees, created as such in some legal manner, and not extended to all cases of abused confidence. 1.</p> <p>2. Placing slaves in the hands of a son, for the purpose of his improving an estate with them, for the parent, and then returning them, is not such a trust as will give jurisdiction to a court of chancery. 1.</p> <p>3. But should the son set up a claim to them as his own property, under an instrument of writing fraudulently obtained, the jurisdiction of a court of chancery would attach, for the purpose of extinguishing such claim ; and then the court ought to decree a restoration of the slaves, and a compensation for their services. 2.</p> <p>4. The statute of limitations does not, in terms, extend to courts of chancery ; they have adopted it, but with other and more exceptions than it contains. 3.</p> <p>Statement the case.</p> <p>Statement of the case.</p> <p>The jurisdiction of courts of chancery, assumed on the ground of trust, ought to be confined to controlling legal rights, vested and remaining in trustees, created as such & some legal manner, and not extended to all cases of abused confidence.</p> <p>Placing slaves in the hands of a son, for the purpose of hit improving an estate with them for the parent, and then returning them, is not such a trust as will give jurisdiction to a court of chancery.</p> <p>But should the son set up a claim to them as his own property, under an instrument of writing fradulently obtained the jurisdiction of a court of chancery would attach for the purpose of extinguishing such claim and then the court ought to decree a restoration of the slaves and a compensation for their services.</p> <p>The statute of limitations does not, in terms, extend to courts of chancery; they have adopted it, but with other and more exceptions than it contains.</p>

<p>1. In every case of the establishment of a mill, the record ought to state, either that the applicant held the land on one side of the stream, the bed whereof was in himself, or in the Commonwealth, or that he held it on both sides of the stream.</p> <p>2. Example of a statement, held not sufficient.</p> <p>Statement of the case.</p>

<p>1. A security for an administrator is not liable further than the condition of his bond makes him liable. 1.</p> <p>2. The words, “ well and truly administer according to law,” create no liability at all in favor of distributees. 1.</p> <p>3. Administrators in the third degree, cannot be called to an account in chancery, for the estate of the first intestate, without showing that in fact it came to their hands. 2.</p> <p>Statement of the case.</p> <p>Statement of the case.</p> <p>A security for an administrator is not liable further than condition of his bond makes him liable.</p> <p>The words, well and truly administer according to law,' create no liability at all in favor of distributees.</p> <p>Administrators in the third degree, cannot be called to an account in chancery for the estate of the first intestate, without showing that in fact, it came into their hands.</p>

<p>1. On a bill having been taken pro confesso, the court may decree in favor of the complainants without proof of their right to sue, or of the allegations of their bill. 1.</p> <p>2. In all cases purely equitable, the court may, without the intervention of a jury or commissioners, liquidate all uncertain sums necessary to be adjusted. 2.</p> <p>3. The security in an administration bond is bound for the legal distribution of slaves by the administrator, notwithstanding slaves have been declared to be real estate. 3.</p> <p>4. If the condition of an administrator's bond does not provide for his distributing the surplus among the heirs, the security in such bond is liable to no suit by the heirs ; but the administrator is himself liable to the same extent he would have been if the bond had conformed to the law. 4.</p> <p>Statement of the case,</p> <p>On a bill’s having been taken pro confesso, the court may decree in favor of the complainants with proof of their right to sue, or of the allegations of their bill.</p> <p>In all cases purely equitable, the court may, without the intervention, of a jury or commissioners, liquidate all uncertain sums necessary to be adjusted.</p> <p>The security in an administration bond is bound for the legal distribution of slaves by the administrator, notwithstanding slaves have been declared to be real estate.</p> <p>If the condition of an administrator’s bond does not provide for his distributing the surplus among the heirs, the security in such bond is liable to no suit by the heirs ; but the administrator is himself liable to the same extent he would have been, if the bond had conformed to the law.</p>

<p>1. There is less presumption of senity at the time when a will was executed, where the testator is shown to have been previously afflicted with the mental debility attending old age, than there is where the mental malady is ordinary lunacy. 1.</p> <p>2. Although the act of assembly requires the attestation of two witnesses to a will at the time of its publication, proof of it by the testimony of two witnesses in court, is not an indispensable prerequisite to its being admitted to record. 2.</p> <p>3. Where the personal attendance of both the subscribing witnesses cannot be enforced, proof by one of them, of the sanity of the testator, and of the attestation of both the witnesses in the presence of the testator, is sufficient. 2.</p> <p>4. The act of assembly authorising the issuing a dedimus to take the depositions of attesting witnesses abroad, may or may not be resorted to, as the party interested in proving the will, may be able, or not, to obtain satisfactory proof at home. 2.</p> <p>Statement of the case.</p> <p>There is less presumption of sanity at the time when a will was executed, where the testator is shown to have been previously afflicted with the mental debility attending old age, than there is where the mental malady is ordinary lunacy.</p> <p>Although the act of assembly requires the attestation of two witnesses to a will at the time of its publication, proof of it by the testimony of two witnesses in court, is not an indispensable pre-requisite to its being admitted to record.</p> <p>Where the personal attendance of both the subscribing witnesses cannot be enforced, proof by one of them of the sanity of the testator and of the attestation of both the witnesses in the presence of the testator, is sufficient.</p> <p>The act of assembly authorising the issuing a dedimus to take the depositions of attesting witnesses abroad, may or may not be resorted to, as the party interested in proving the will may be able or not, to obtain satisfactory at home.</p>

<p>1. If after the event which a witness is called to prove, he becomes interested by his own act, without the interference of the party by whom he is called, such subsequent interest will not render him incompetent. 1.</p> <p>2. And this rule applies with additional force, where the witness became subsequently interested through the procurement of the party objecting to his competency. 1.</p> <p>3. A judgment procured against a purchaser on the evidence of a witness interested against the vender, is inadmissible, as evidence in a suit against the vender for recourse. 2,</p> <p>4. The defendant on whose property an execution was levied and the property sold, is a competent witness to prove the extent of his title to the property, in a controversy arising between the purchaser at such sale, and a person claiming the same property by title adverse to that of the defendant. 3.</p> <p>5. Where there is an absolute bill of sale and the property sold remains with the seller, the transaction is fraudulent and void. Evidence of a fraudulent intention in such a case, is unnecessary, and of a fair intention, is inadmissible. 4.</p> <p>6. But where the sale is not absolute, and the contract is not in its terms or nature inconsistent with the possession’s remaining with the seller, the fraud, if any, is not a conclusion of law but a matter of fact, the existence or non-existence of which, is to be decided by the jury from the evidence and circumstances presented by each particular case. 4.</p> <p>7. But this doctrine does not extend to cases where there has been an adverse possession of five years without suit, &c. 5.</p> <p>8. There is a difference between a conditional sale and a mortgage, and there is no law requiring a deed evidencing a conditional sale to be recorded. 5.</p> <p>Statement of the case.</p> <p>If, after the event which a witness is called to prove, he becomes interested by his own act, without the interference of the party by whom he is called, such subsequent interest will not render him incompetent,</p> <p>And this rule applies with additional force, where the witness became subsequently interested, through the procurement of the party objecting to his competency.</p> <p>A judgment procured against a purchaser on the evidence of a witness interested against the vender, is inadmissible as evidence in a suit against the vender for recourse:</p> <p>The defendant on whose property an execution was levied and the property sold, is a competent witness to prove the extent of his title to the property, in a controversy arising between the purchaser at such sale, and a person claiming the same property by title adverse to that of the defendant.</p> <p>Where there is an absolute bill of sale, and the property sold remains with the seller, the transaction is fraudulent and void. Evidence of a fraudulent intention in such case is unnecessary and of a fair intention, is inadmissible.</p> <p>But where the sale is not absolute, and the contract is not in the terms or nature, inconsistent with the possession's remaining with the seller, the fraud, if any, is not a conclusion of law ; but a matter of fact, the existence or non-existence of which, is to be decided by the jury, from the evident and circumtances presented by each particular case.</p> <p>But this doctrine does not extend to cases where there has been an adverse possession of five years, without suit, &c.</p> <p>There is a difference between a conditional sale and a mortgage, and there is no law requiring a deed evidencing a conditional sale, to be recorded.</p>

<p>An entry for land deemed valid on evidence, and its particular location designated.</p> <p>Statement of the case.</p>

<p>1. A judgment rendered without service of process, actual or constructive, in an original suit, where the law requires the service of process, is void.</p> <p>2. But this principle does not apply to judgments on scire facias against bail, because there the law authorises the rendering a judgment, after an ineffectual attempt to serve the process, because the bail is quasi, a party to the suit, and the scire facias is rather a judicial than an original writ.</p> <p> 3. Our courts are bound to know judicially, what the laws of Virginia were before the separation. </p> <p>4. When the record of a case decided since the separation, is presented, and exhibits a decision conformable to the laws in force there before, the courts here might to presume that the laws on the matters involved in that suit remain the same.</p> <p>5. A judgment rendered in Virginia, on a scire facias vs. special bail, upon a return of the first writ not found, and no inhabitant of my bailiwick, and of the second, no inhabitant of my bailiwick, is a judgment of a sister state to which full credence ought to be given, under the constitution of the United States.</p> <p>Statement of the case.</p>

<p>1. Notice that a deposition will be taken at a particular tavern in a city named in the notice, is good, without mentioning the christian name of the tavern-keeper, unless it is shown that there were in the same city two tavern-keepers of the same surname. 1.</p> <p>2. Where the injury complained of is fraud, in knowingly selling an unsound slave for a sound one, and the relief sought is merely an appropriate reduction of price, a court of law is the proper tribunal; because the action originates in tort, and the amount of damages in such actions can be best ascertained by a jury. 2.</p> <p>3. A prejudice to the party to whom a promise is made, as well as a benefit to the party making it, is a sufficient consideration to render the promise obligatory.</p> <p>Statement of the case.</p> <p>Notice that a deposition will be taken at a particular tavern in a city named in the notice, is good, without mentioning the christian name of the tavern-keeper, unless it is shown, that there were in the same city, two tavern-keepers of the same surname.</p> <p>Where the injury complained of is fraud, in knowingly selling an unsound slave for a sound one, and the relief sought is merely an appropriate reduction of price, a court of law is the proper tribunal ; because the action originates in tort, and the amount of damages in such actions, can be best ascertained by a jury.</p> <p>A prejudice to the party to whom a promise is made, as well as a benefit to the party making it, is a sufficient consideration to render the promise obligatory.</p>

<p>1. The loss of an article of agreement containing mutual covenants, is sufficient to confer jurisdiction on a court of chancery, in favor of the injured party. l.</p> <p>2. An auditor directed to be appointed to adjust an account, as well from any evidence either party might produce before him, as from that contained in the record. 2.</p> <p>Statement of the case.</p> <p>The loss of an article of agreement containing mutual covenants is sufficient to confer jurisdiction on a court of chancery in favor of the injured party.</p> <p>An auditor directed to be appointed to adjust an account, as well from any evidence either party might produce before him, as from that contained in the record.</p>

<p>1. The schedule of property surrendered by an insolvent debtor, need not state on what execution it was surrendered ; it is sufficient if that and the magistrate’s certificate, be in fact, attached to the execution under which the surrender was made and returned with it. 1.</p> <p>2. The clerk's office from which the execution issued, is the office to which such schedule ought to be returned. 2.</p> <p>_3. The summonses on such schedule are properly issuable in the name of the sheriff of the county, where the garnishee resides. 3.</p> <p>4. A summons requiring the garnishees to appear on a certain day before the court, and answer on oath, and say, whether they or either of them, are indebted as in the schedule alleged, is sufficiently certain. 4.</p> <p>5. Where the lands of femes coverts are sold under the authority of a private act of assembly, declaring that the purchase money shall pass and be held as it would have been, if the husband and wife had joined in the sale, the money belongs exclusively to the husband, and is subject to his debts. 5 and 7.</p> <p>6. When a garnishee states that he owes to the defendant in the execution, a debt payable at a future day, judgment ought to be rendered for the debt, with a stay of execution until the day of payment. 6 and 7.</p> <p>Statement of the case.</p> <p>The schedule of property surrendered by an insolvent debtor, need not state on what execution it was surrendered; it is sufficient if that and the magistrate’s certificate be, in fact, attached to the execution under which the surrender was made and returned with it.</p> <p>The clerk’s office from which the execution issued, is the office to which such schedule ought to be returned.</p> <p>The summonses on such schedule, are properly issuable in the name of the sheriff of the country where the garnishee resides.</p> <p>A summons requiring the garnishees to appear on a certain day before the court and answer on oath & say, whether they, or either of them, are indebted, as in the schedule alleged, is sufficiently certain.</p> <p>Where the lands of femes coverts are sold under the authority of a private act of assembly, declaring that the purchase money shall pass and be held as it would have been, if the husband and wife had joined in the sale, the money belongs exclusively to the husband, and is subject to his debts.</p> <p>When a garnishee states that he owes to the defendant in the execution a debt payable at a future day, judgment ought to be rendered for the debt, with a stay of execution until the day of payment.</p>

<p>1. Our acts of assembly make void contracts to restore money lent at the time and place of gaming ; but give no action to recover it back, if paid. 1.</p> <p>2. Prior to the passage of these acts of assembly, courts of equity did not sustain bills to rescind contracts for the payment of money so lent. 1.</p> <p>3. It seems that a man who has borrowed money at the gaming table, and given his note for the re-payment of it, must defend himself at law, if he means to rely, on the act at all. 1.</p> <p>4. In example of a defence by an answer in chancery not sufficiently responsive to the bill to be available. 2.</p> <p>Statement of the case.</p> <p>Statement of the case.</p> <p>Our acts of assembly make void contracts to restore money lent at the time and place of gaming; but give no action to recover it back if paid.</p> <p>Prior to the passage of these acts of assembly, courts of equity did not sustain bills to rescind contracts for the payment of money so lent.</p> <p>It seem, that a man who has borrowed money at the gaming table, and given his note for the re-payment of it must defend himself at law, if he means to rely on the act at all.</p> <p>An example of a defence by an answer in chancery, sufficiently not responsive to be available.</p>

<p>1. Where the defendant attempts a defence at law, and fails in it, for want of proof, he cannot afterwards have relief in chancery, on the ground that he can prove the matter of his defence by the answer of the plaintiff at law, and by no one else. 1.</p> <p>2. Surprize may sometimes be a ground on which a court of chancery will award a new trial at law ; but never in a case where relief might have been had by applying to the court of law for a new trial. 2.</p> <p>3. Whenever the means of defeating the advantage which the opposite party has acquired, are known, during the time in which a new trial may lawfully be moved for, the remedy is complete in a court of law. 2.</p> <p>4. Where a judgment has been obtained against a sheriff, for failing to return an execution, he may avoid it in equity, by showing that as between the plaintiff and defendant in the execution, it ought never to have been collected. 5.</p> <p>Statement of the case.</p> <p>Statement of the case.</p> <p>Statement of the case.</p> <p>Where the defendant attempts a defence at law and fails in it for want of proof, he cannot afterwards have relief in chancery, on the ground that he can prove the matter of his defence by the answer of the plaintiff at law, and by no one else.</p> <p>Surprize may sometimes be a ground on which a court of chancery will award a new trial at law; but never in a case where relief might have been had by applying to the court of law, for a new trial.</p> <p>Whenever the means of defeating the advantage which the opposite party has acquired, are known, during the time in which a new trial may lawfully be moved for, the remedy is complete in a court of law.</p> <p>Where a judgement has been obtained against a sheriff for failing to return an execution, he may avoid it in equity by showing, that as between the plaintiff and defendant in the execution, it ought never to have have been collected.</p>

<p>1. A bill in chancery will lie to quiet the possession of real estate, if the complainant has title, without having had his title previously tried in a suit at law. 1.</p> <p>2. Such a bill will lie against the trustees of a town, with an injunction prohibiting them from collecting a penalty which they had recovered, although it was less than five pounds, and was recovered before a justice of the peace. 1.</p> <p>3. A person deriving title in virtue of the act of 1800, under an alien claiming by descent, must shew on the trial, that such alien was two years in the country previous to the death of the ancestor. 2.</p> <p>Statement of case.</p> <p>A bill in chancery will lie to quiet the possession of real estate, if the complainant has title without having had his title previously tried in a suit at law.</p> <p>Such a bill will he against the trustees of a town, with an injunction prohibiting them from collecting a penalty which they had recovered, although it was less than five pounds, and was recovered before a justice of the peace.</p> <p>A person deriving title in virtue of the act of 1800, under an alien, claiming by descent, must show, on the trial, that such alien was two years in the country previous to the death of the ancestor.</p> <p>1 Dig. 80.</p>

<p>A motion against a clerk for having issued an unlawful or erroneous fee-bill, as given by the act of 1816, to the party aggrieved, is an action within the meaning of the act of 1796, limiting prosecutions on penal acts of assembly, to one year.</p> <p>1 Dig. 563.</p> <p>2 Dig. 864.</p>

<p>1. An order of publication against absent defendants ought to be published two calendar months.</p> <p>2. Where a bill is filed against an absent infant, and publication made, a guardian ad litem ought to be appointed, and to appear and defend, before any decree is pronounced.</p> <p>3. To a bill claiming against the heirs of a contracting party, the rescision of a contract for the sale of lands, and the re-payment of the purchase money, the personal representative, if there is any, is a necessary party.</p> <p>Statement of the case.</p> <p>Statement of the case.</p>

<p>1. Where a justice of the peace has taken the bond required by law, in a traverse of an inquisition of forcible entry or detainer, the substitution of other security, and the acceptance of another bond by the circuit court, will not release the security in the first bond.</p> <p>2. The testimony of an interested witness, not objected to in the inferior court, cannot be rejected by the court of appeals.</p> <p>Statement the case.</p>

<p>1. A sentence of the county court, directing the reputed father of a bastard child to pay to the mother a specified sum per annum, is legal.</p> <p>2. On such sentence, the payments become due at the termination of each year, reckoning from the day the sentence was pronounced.</p> <p>'3. An applicdtion made for a new trial in such case, at a subsequent term of the county court, and overruled, is a distinct proceeding, and cannot be brought before the court ef appeals by writ of error to the sentence.</p> <p>Statement of the case.</p>

<p>1. A plea of non est factum, being the general issue, ought always to conclude to the country.</p> <p>2. But where the defendant files such plea, without concluding either to the country or with a verification, and the plaintiff files neither replication nor rejoinder, and a jury are sworn to try the issue, the defendant cannot avail himself of this irregularity, in the court of appeals.</p> <p>Statement of the case.</p>

<p>1. A note “ to pay $500, with interest, on demand,” carries interest from its date. 1.</p> <p>2. Without a stipulation to pay interest, a note does not carry interest until payment is demanded. 1.</p> <p>3. In construing contracts, no expression to which any sensible import can be assigned, ought to be disregarded. 1.</p> <p>Statement of the case,</p> <p>A note to pay $500 with interest on demand,’ carries interest from its date.</p> <p>Without a stipulation to pay interest, a note does not carry interest until payment is demanded.</p> <p>In construing contracts, no expression to which any sensible import can be assigned, ought to be disregarded.</p>

<p> It is with extreme reluctance a court will award a new trial, for the purpose of allowing an opportunity to impeach the credit of a witness. </p> <p>Statement of case.</p>

<p>1. A scire facias stating the recovery of a judgment against the defendant, the emanation of a ca. sa. thereon, and his commitment to jail under it, without showing how he was discharged, or whether he was discharged at all, shows no cause of action. 1.</p> <p>2. A statement of the discharge and the manner of it, is so material, that the lack of it is not cured by a plea to the merits. It does not come within any of the statutes of jeofails. 2.</p> <p>Statement of the case.</p> <p>A scire facias stating the recovery of a judgment against the defendant, the emanation of a ca. sa. thereon, and his commitment to jail under it, without showing how he was discharged, or whether he was discharged at all; shows no cause of action.</p> <p>A statement of the discharge and the manner of it, is so material, that the lack of it is not cured by a plea to the merits. It does not come within any of the statutes of jeofails.</p>

<p>1. Where a writ of error is brought on the ground that the inferior court refused to hear an application for a new trial, the record ought to show that the application was made on grounds meriting the consideration of the court; otherwise, the court of appeals will presume that the inferior court had good reasons for the refusal. 1.</p> <p>2. Where the grounds assigned on the record, are the exclusion of evidence or of title papers on the former trial, the bill of exceptions ought to exhibit the evidence or title papers excluded. 1.</p>

<p>1. By an assignment of dower legally made under an order of the county court, a widow becomes invested with a right of entry in the lands so assigned. 1.</p> <p>2. After marriage this right devolves exclusively on the husband, and he may dispose of it during their joint lives, or the right to it for their joint lives may be sold by execution for his debts. 1.</p> <p>3. The minutes of the county court need not shew on whose application, commissioners for the assignment of dower were appointed. Their appointment is prima facie evidence of a lawful application. 2.</p> <p>4. All the evidence necessary of such commissioners having been sworn as the law requires, is a statement in their report that they were duly sworn before they proceeded in the execution of the duty assigned them. 3.</p> <p>Statement of the case.</p> <p>By an assignment of dower, legally made, under an order of the county court, a widow becomes invested with a right of entry in the lands so assigned.</p> <p>After marriage, this right devolves exclusively on the husband, and he may dispose of it during their joint lives; or the right to it for their joint lives may be sold by execution for his debts.</p> <p>The minutes of the county court need not show on whose application commissioners for the assignment of dower were appointed ; their appointment is prima facie evidence of a lawful application.</p> <p>All the evidence necessary, of such commissioners’ having been sworn as the law requires, is a statement in their report, that they were duly sworn before they proceeded in the execution of the duty assigned them.</p>

<p>An action on the case, brought to recover damages occasioned by the erection of a mill and the consequent overflowing of the land of the plaintiff, is an action founded on tort, and on common law principles, abates by the death of the plaintiff, and cannot, by virtue of any statutory regulation, be revived in the name of the executor or administrator.</p> <p>Statement of the case.</p> <p>1 Dig. 533.</p> <p>1 Dig. 52.</p>

<p>1. A deed acknowledged after the time allowed by law for its acknowledgment or proof has elapsed, cannot, be given in evidence, unless the execution of it is proved. 1.</p> <p>2. The settlement required by the statute, limiting the time of bringing suits against actual settlers, is a settlement and residence on the land; clearing and cultivating the land is not sufficient. 2.</p> <p>Statement of the case.</p> <p>A deed acknowledged after the time allowed by law for its acknowledgement or proof has elapsed, cannot be given in evidence, unless the execution of it is proved.</p> <p>The settlement required by the statute limiting the time of bringing suits against actual settlers, is a settlement and residence on the land ; clearing and cultivating the land, is not sufficient.</p>

<p>1. The approaching insolvency of the seller of a diseased slave, for which full payment has not been made, is sufficient to sustain the jurisdiction of a court of chancery on a bill praying an injunction and rescision of the contract. 1.</p> <p>2. Where the seller of a slave represents her to be in good health; but the slave herself truly informs the purchaser that she is sick, can be of no use to him, and must die in a short time ; these declarations of the slave shall not operate as notice to the purchaser, so as to discharge the seller from his responsibility for misrepresentation. 2.</p> <p>Statement of the case.</p> <p>The approaching insolvency of the seller of a diseased slave, for which full payment has not been made, is sufficient to sustain the jurisdiction of a court of chancery on a bill praying an injunction and rescision of the contract.</p> <p>Where the seller of a slave represents her to be in good health; but the slave herself truly informs the purchaser that she is sick, can be of no use to him, and must die in a short time; these declarations of the slave shall not operate as notice to the purchaser so as to discharge the seller from his responsibility for misrepresentation.</p>

<p>1. Where the consideration of a note has not entirely failed, defence cannot be made at law ; the relief is in equity. 1.</p> <p>2. The principle is the same, where through the fraud of the party, there was originally a partial lack of consideration; for although fraud in the execution of a note, may furnish an available defence at law, it does not follow that fraud in the consideration will. 1.</p> <p>Statement of the case.</p> <p>Where the consideration of a note has not entirely failed, defence cannot be made at law; the relief is in equity.</p> <p>The principle is the same where through the fraud of the party, there was originally a partial lack of consideration ; for although fraud in the execution of a note, may furnish an available defence at law, it does not follow, that fraud in the consideration will.</p>

<p>Where a carpenter or millwright agrees to erect any building for a specified sum of money, but additions or alterations are afterwards made by consent, the workman is bound by the contract, as far as it can be traced, and is entitled to recover on a quantum meruit for the excess only. 1.</p> <p>Statement of the case.</p> <p>Statement of the case.</p> <p>Where a carpenter or millwright agrees to erect any building for a specified sum of money ; but additions or alterations are afterwards made by consent, the workman is bound by the contract as far as it can be traced, and is entitled to recover on a quantum meruit for the excess only.</p>

<p>An entry for land adjudged valid, and the mode of surveying corrected.</p> <p>Statement of the case.</p>

<p>1. By a recovery of land in a suit, and the delivery of possession to an agent of the plaintiff, on the land, by the sheriff, under the authority of a habere facias possessionem, a possession is acquired which will enable the plaintiff to maintain an action of trespass, for injury afterwards done to the land. 1.</p> <p>2. The possession thus obtained will be presumed to have remained with the plaintiff, unless he shall be proved to have done some act evincing an intention to abandon it; and the departure of his agent from the land, after he has received the possession, is not such an act. 1.</p> <p>Statement of the case.</p> <p>By a recovery of land in a suit, and the delivery of possession to an agent of the plaintiff on the land by the sheriff, under the authority of a habere facias possesssionem, a possession is acquired which will enable the plaintiff to maintain an action of trespass, for injury afterwards done to the land.</p> <p>The possession thus obtained, will be presumed to have remained with the plaintiff, unless he shall be proved to have done some act evincing an intention to abandon it ; and the departure of his agent from the land, after he has received the possession, is not such an act.</p>

<p> The question, whether a contract respecting slaves, was a conditional sale or a mortgage, discussed and decided. </p>

<p>1. A bank check is in substance a domestic bill of exchange, and subject to the same laws in respect to notice, §c. 1.</p> <p>2. A notice of protest given by a notary public, is as available as if given by the holder of the bill. 2.</p> <p>3. Such notice need not state who is the holder nor to whom the holder intends to resort for payment. 2.</p> <p>Statement of the case.</p> <p>A bank check is, in substance, a domestic bill of exchange, and subject to the same laws in respect to notice, &c. A notice of protest given by a notary public, is as available as if given by the holder of the bill.</p> <p>Such notice need not state who is the holder; nor to whom the holder intends to resort for payment</p>

<p>1. Where on an appeal from a justice of the peace to the circuit court, the appeal bond has not been executed within twenty days, the appeal ought to be dismissed, but in dismissing the appeal the circuit court ought not to affirm the judgment of the justice.</p> <p>2. It seems to be improper to pronounce a judgment of affirmation, unless the cause is so before the circuit court, that it could regularly try the matter in contest.</p>

<p>1. The record in a road case ought to show that the viewers were sworn, previous to their proceeding to view the road.</p> <p>2. When they have once viewed and reported to the court, and their report is set aside, their authority is at an end; and every thing they afterwards do, without a new appointment and being again sworn, is void.</p> <p>Statement of the case.</p>

<p>Notice of an intended motion against a sheriff, for failing to return an execution, is sufficiently certain, if it describe the execution, without mentioning any credits which may be endorsed on it. 1.</p> <p>Statement of the case.</p> <p>Notice of an intended motion against a sheriff, for failing to return an execution, is sufficiently certain, if it describe the execution, without mentioning any credits which may be endorsed on it.</p>

<p>1. On a contract to convey land at a fair valuation, to the amount of a sum specified, when required, no demand at the residence of the person bound is neccessary. l.</p> <p>2. It seems that in such case a person may be deputed to present the contract and make the demand, without any authority in writing. 1.</p> <p>3. Where the defendant has pleaded the statute of limitations, and the plaintiff has not replied to it, the court cannot reverse the judgment of the inferior court, on a writ of error brought by the plaintiff, notwithstanding it appears that a verdict was rendered against him in consequence of erroneous instructions given by the inferior court. 2.</p> <p>4. If it appears, from any cause in the record, that the plaintiff in error ought not to have had a judgment in his favor, or that if he had obtained one, it must have been reversed on a writ of error brought by his adversary ; he cannot maintain one himself, 2.</p> <p>Statement of the case.</p> <p>On a contract to convey land at a fair valuation, to the amount of a sum specified, when required, no demand at the residence of the person bound, is necessary.</p> <p>It seems, that in such case, a person may be deputed to present the contract and make the demand, without any authority in writing.</p> <p>Where the defendant has pleaded the statute of limitations and the plaintiff has not replied to it, the court cannot reverse the judgment of the inferior court, on a writ of error brought by the plaintiff, notwithstanding it appears, that a verdict was rendered against him in consequence of erroneous instructions given by the inferior court. If it appears from any cause in the record, that the plaintiff in error ought not to have had a judgment in his favor, or that if he had obtained one, it must have been reversed on a writ of error brought by his adversary, he cannot maintain one himself. *Ante 64.</p>

<p>1. In an action of covenant, there was a confession in the minutes, for a sum certain, with interest until paid ; on the record book, was a confession for the sum certain, but nothing was there said, in the confession, respecting interest ; but judgment was rendered for the sum, with interest until paid. On a writ of error being sued out, a transcript of the minutes was brought up by certiorari ; but, per curiam, “ We cannot permit the minutes to prevail over the record.”</p> <p>2. The act of assembly, rendering void powers of attorney to confess judgment, does not invalidate such power, given after the suit has been commenced.</p> <p>Statement of the case.</p> <p>1 Dig. 248.</p>

<p>1. A plea denying the assignment of the note, is a good plea in bar to a suit brought by the assignee. 1.</p> <p>2. A plea of set-off, ought to allege the debt sought to be set-off, to have been owing to the defendant at the commencement of the action, and still owing, at the time of the plea pleaded. 2.</p> <p>Statement of the case.</p> <p>Statement of the case.</p> <p>A plea denying the assignment of the note, is a good plea in bar to a suit brought by the assignee.</p> <p>A plea of set-off, ought to allege the debt sought to be set off, to have been owing to the defendant at the commencement of the action, and still owing at the time of the plea pleaded.</p>

<p>1. The proper use of a videlicet, is, to explain what is indifferent, doubtful or obscure, or to particularize what was general before ; but not to diminish precedent matter. 1.</p> <p>2. In an action on a covenant for the payment of a certain sum, the court have a right to assess the damages, without the intervention of a jury. 2.</p> <p>3. In all cases where the court have a right to assess the damages, without the intervention of a jury, they ought to set aside a verdict of the jury finding damages outrageously excessive, whether the defendant moves for it or not. 3.</p> <p>Statement of the case.</p> <p>The proper use of a videlicet, is, to explain what is indifferent, doubtful or obscure, or to particularize what was general before ; but not to diminish precedent matter.</p> <p>In an action on a covenant for the payment of certain sum, the court have a right to assess the damages, without the intervention of a jury.</p> <p>In all cases where the court have a right to assess the damages, without the intervention of a jury, they ought to set aside a verdict of the jury finding damages outrageously excessive, whether the defendant moves for it or not.</p>

<p>1. Although a court of chancery will not entertain jurisdiction to liquidate the damages for a defect in personal property sold, and then set-off these damages against the price ; yet, if the parties settle the amount themselves, and agree that the amount so settled shall be discounted against so much of the price, equity will enforce the agreement. 1.</p> <p>2. Where a court of chancery dismisses a bill for want of proper parties, it ought to be without prejudice. 2.</p> <p>•Statement of the case.</p> <p>Although a court of chancery will not entertain jurisdiction to liquidate the damages for a defect in personal property sold, and then set-off these damages against the price ; yet if the parties settle the amount themselves, and agree that the amount so settled, shall be discounted against so much of the price, equity will enforce the agreement.</p> <p>Where a court of chancery dismisses a bill for want of proper parties, it ought to be without prejudice.</p>

<p>1. Where neither the declaration, plea nor replication have been noticed on the order book, the failure cannot be assigned for error in the Court of Appeals, if the jury were sworn to try the issue joined and rendered, a verdict.</p> <p>2. Where the record skews that the plaintiff was regularly non-suited, and does not shew that the non-suit was ever set aside, a trial and judgment in his favor at a subsequent term, is erroneous and the proceedings will be reversed.</p> <p> 3. Obtaining a rule against him by the defendant at a subsequent day of the same term, in which the non-suit was suffered, is not such a waiver of it as will render the subsequent proceedings legal. </p> <p>Statement of the case.</p>

<p>1. Where the defendant to an action on a note for the payment of money, pleads affirmative pleas, and afterwards makes default, judgment may be rendered against him without the intervention of a jury. 1.</p> <p>2. Josiah and Josier will be considered as the same name, the difference in pronunciation is too immaterial to amount to a variance. 2.</p> <p>Where the defendant to an action on a note for the payment of money, pleads affirmative pleas, and afterwards makes default, judgment may be rendered against him, without the intervention of a jury.</p> <p>Josiah and Josier, will be considered as the same name ; the difference in pronunciation is too immaterial to amount to a variance.</p>

<p>The person who has possession of the goods of the defendant in an attachment, can maintain no action against the officer for levying the attachment on them, while in his possession.</p> <p>Statement of the case.</p>

<p>1. A patent ought not to be adjudged invalid on its face, on account of the name in the habendum being entirely different from that in the previous part. l.</p> <p>2. In such case, the error, if there is one, may be corrected by resorting to the plat and certificate of survey, entry, &c. ; or, if the grantee was known by both names, that fact may be shown in evidence. 1.</p> <p>3. The deposition of a defendant in an ejectment, taken respecting the same lands, in a former suit between other parties, may be read in evidence against him. 2.</p> <p>3. Whatever privilege witnesses may have, of not deposing, where their own interest may be affected ; if they do depose to facts which may prejudice them in another controversy, there is no law which can prevent their depositions being used against them in such controversy. 2.</p> <p>5. Such depositions are admissible on the same principle that the confessions of a party may be given in evidence against him. 2.</p> <p>6. Where a party calls on a witness interested in the cause, and insists on his being sworn, he cannot object to any part of his testimony, as incompetent, notwithstanding it may be directly in support of the witness’ own interest. 3.</p> <p>Statement of the case.</p> <p>A patent ought not to be adjudged invalid on its face, on account of the name in the habendum being entirely different from that in the previous part.</p> <p>In such case, the error, if there is one, may be corrected, by resorting to the plat and certificate of survey, entry, &c. or if the grantee was known by both names, that fact may be shown in evidence.</p> <p>The deposition of a defendant in a ejectment taken respecting the same land in a former suit between other parties, may be read in evidence against him.</p> <p>Whatever privilege witnesses may have, of not deposing where their own interest may be affected, if they do depose to facts which may prejudice them in another controversy, there is no law which can prevent their depositions being used against them, in such controversy. Such depositions are admissible on the same principle that the confessions of a party, may be given in evidence against him.</p> <p>Where a party calls on a witness, interested in the cause, and insists on his being sworn, he cannot object to any part of his testimony as incompetent, notwithstanding it may be directly in support of the witness’ own interest.</p>

<p>1. An action on the case, will not lie on an unsealed covenant, executed since the act raising such instruments to the dignity of specialties, took effect. 1.</p> <p>2. No action on the case, will lie by one partner against another, for detaining the slaves designated to work in the partnership concern, where the partnership is by covenant in writing ; the action ought to be on the covenant, and for a violation of it. 1.</p> <p>3. Although there is in the articles of partnership, a stipulation, that all the slaves are to be under the entire control and management of the partner who sues for their detention, the principle is the same. 2.</p> <p>Statement of the case.</p> <p>An action on the case, will not lie on an unsealed covenant, executed since the act raising such instruments to the dignity of specialties, took effect.</p> <p>1 Dig. 264.</p> <p>No action on the case, will lie by one partner against another, for detaining the slaves designated to work in the partnership concern; where the partnership is by covenant in writing, the action ought to be on the covenant, and for a violation of it.</p> <p>Although there is in the articles of partnership, a stipulation that all the slaves are to be under the entire control and management of the partner who sues for their detention, the principle is the same.</p>

<p>1. The propriety of granting a new trial in a traverse of forcible entry and detainer, discussed.</p> <p>2. A judgment of restitution supported against those who were engaged in making the unlawful entry, although they did not detain the premises afterwards, as well as those who continued in the occupation of them, on the ground, that in trespass all are principals.</p> <p>Statement of the case,</p>

<p>1. The jury have a right to infer, from, the evidence and circumstances, that a slave held as on loan, was actually given or sold to the person in possession, and that the transaction was made to assume the aspect of a loan, to protect the slave from the creditor's of the donee. 1 and 2.</p> <p>2. possession of less than five years does not constitute a loan fraudulent, per se. 2.</p> <p>Statement of the case.</p> <p>Statement of the case.</p> <p>The jury have a right to infer from the evidence and circumstances, that a slave held as on loan, was actually given or sold to the person in possession, and that the transaction was made to assume the aspect of a loan, to protect the slave from the creditors of the donee.</p> <p>A possession of less than five years, does not constitute a loan fraudulent, per se.</p>

<p>1. Instructions on abstract points of law, ought not to be given, however correct the principles assumed, maybe. 1.</p> <p>2. A partial failure of the consideration of a note, furnishes no defence at law. 2.</p> <p>Statement the case.</p> <p>Instructions on abstract points of law, ought not to be given, however correct the principles assumed may be.</p> <p>A partial failure of the consideration of a note, furnishes no defence at law.</p>

<p>1. In a declaration on a marriage contract, alleging a promise to marry on request, a special request ought to be averred; otherwise no cause of action is shown. 1.</p> <p>2. If the declaration alleges that the promise was to be performed within a reasonable time, it ought to contain a traversable averment of readiness or of a special request on the part of the woman. 1.</p> <p>3. The time and place of the special request being blank in the declaration does not vitiate, unless the promise had been laid to be performed at a particular time and place on request, 2.</p> <p>4. When no time or place is laid in the declaration for the performance of the contract, it is not necessary that the evidence should prove that any time or place was agreed on. 3.</p> <p>Statement of the case.</p> <p>In a declaration on a marriage contract, alleging a promise to marry on request, a special request ought to be averred ; otherwise, no cause of action is shown.</p> <p>If the declaration alleges that the promise was to be performed within a reasonable time, it ought to contain a traversable averment of readiness, or of a special request on the part of the woman.</p> <p>The time and place of the special request being blank in the declaration, does not vitiate, unless the promise had been laid to be performed at a particular time and place, on request.</p> <p>When no time or place is laid in the declaration for the performance of the contract, it is not necessary that the evidence should prove, that any time or place was agreed on.</p>

<p>1. A project to retry the title in ejectment, on a motion to quash the habere facias possessionem which issued on it, detected and defeated.</p> <p>2. A suit brought against a man by his own procurement and for his own benefit, considered as merely a part of his defence, in a suit brought by a third person.</p> <p>Statement of the case.</p>

<p>1. On what possession an action of trespass can be maintained.</p> <p>2. The issue is immaterial, when the plea on which it is formed does not gainsay the whole cause of action.</p> <p>Statement ct the case.</p>

<p> If, after the execution of an absolute bill of sale for slaves, they remain in possession of the vender, the deed is fraudulent and void per se, as to creditors, notwithstanding the bill contains a stipulation that the vender will deliver them to the vendee, whenever called on. </p> <p>Statement of the case.</p>

<p>1. A judgment in ejectment, for the term, damages and costs, cannot be revived by scire facias against the heirs alone; the personal representatives must be made defendants. 1.</p> <p>2. A joint judgment cannot be revived against the representatives of a deceased defendant, by scire facias, without making the survivors defendants. The scire facias must pursue the judgment, which, being joint, the scire facias must be joint also. 2.</p> <p>Statement of the case.</p> <p>A judgement in ejectment for the term, damages and costs, cannot be revived by scire facias against the heirs alone ; the personal representative must be made defendants.</p> <p>A joint judgment cannot be revived against the representatives of a deceased defendant, by scire facias, without making the survivors defendants. The scire facias must pursue the judgment, which being joint, the scire facias must be so also.</p>

<p>A proclamation against a defendant at law, cannot legally be awarded, unless upon a return of non est inventus ; and a sheriff cannot legally make such return, if the defendant is a known inhabitant of another county or state.</p> <p>Statement the case</p> <p>1 Dig. 252.</p>

<p>1. A declaration in debt, on the act against dueling held to be sufficient. 1.</p> <p>2. The challenge must he stated in the declaration to have been given in the state of Kentucky. 2.</p> <p>3. But a statement that it was given in the circuit and county of Scott, is a sufficient allegation of that fact ; for the court must know judicially that they are in Kentucky. 2.</p> <p>4. An example of a judgment against the defendant held sufficient. 2.</p> <p>5. No costs can be reovered of the defendant in such action. 3.</p> <p>Statement of the case.</p> <p>A declaration in debt, on the act against duelling, held to be sufficient.</p> <p>The challenge must be stated in the declaration, to have been given in the state of Kentucky.</p> <p>But a statement, that it was given in the circuit and county of Scott, is a sufficient allegation of that fact ; for the court must know, judicially, that they are in Kentucky.</p> <p>An example of a judgment against the defendant, held sufficient.</p> <p>No costs can be recovered of the defendant in such action.</p>

<p>1. A defendant in an ejectment, who has been admitted, to defend for himself and his co-defendants, may submit the cause to arbitration, unless the record shows that the other defendants had an interest distinct from his who was admitted to defend.</p> <p>2. That an award ought to show on its face that arbitrators have been sworn, is a point too well settled by precedent, now to require or admit of an investigation on principle. 2 and 3.</p> <p>3. Although an award has been made out and agreed to by all the arbitrators, their powers are not terminated, until the award has been in fact returned to the court.</p> <p>Statement the of case.</p>

<p>On a contract to pay whatever may appear to be just, and the value of as much of the land sold as may be recovered by an adversary suit, the value of the land at the date of the contract, with interest, is the measure of damages.</p> <p>Statement of the case,</p>

<p> A will established. The mental disease under which the testatrix labored, appearing to have been want of excitability, and not aberration of mind. </p> <p>Statement of the case.</p>

<p> The loss of an execution by the officer, is a sufficient excuse for not returning it. </p> <p>Statement of the case.</p>

<p>1. Instructions given to the jury cannot be noticed by the court of appeals, unless incorporated with, or referred to in a bill of exceptions, or made part of the record by order of the court. Their having been reduced to writing, stated to have been given or refused, and transcribed by the clerk with the record, does not make them part of the record. 1.</p> <p>2. The vender’s continuing in possession of property after an absolute sale, is conclusive evidence of fraud; which, it seems, is not to be repelled by a momentary delivery to the vendee, who immediately lends it to the vender, to use and keep at his (the vender’s) risk. 2.</p> <p>Statement of the case.</p> <p>Instructions given to the jury cannot be noticed by the court of appeals, unless incorporated with, or referred to, in a bill of exceptions, or made part of the record by order of the court.</p> <p>Their having been reduced to writing, stated to have been given or refused, and transcribed by the clerk with the record, does not make them part of the record.</p> <p>The vender's continuing in possession of property, after an absolute sale, is conclusive evidence of fraud, which, it seems, is not to be repelled by a momentary delivery to the vendee, who immediately lends it to the vender, to use and keep at his (the vender’s) risk.</p>

<p>1. Where the defendant, after a motion for a continuance has been overruled, withdraws the pleas, to enable him to support which, he asked for a continuance, he cannot avail, himself of any error the court may have committed in overruling his motion for a continuance. 1.</p> <p>2. A transcript of the order of the county court granting administration with the will annexed, is prima facie evidence, as well of the jurisdiction of the court, as of the facts stated in the order. 2.</p> <p>3. Where issue is joined on a plea denying that the plaintiff is administrator, proof that he is administrator with a will annexed,, supports the issue on the part of the plaintiff. 2.</p> <p>Statement of the case.</p> <p>Where the defendant, after motion for a continuance has been overruled, withdraws the pleas, to enable him to support which, he asked for a continuance, he cannot avail himself of any error the court may have committed, in overruling his motion for a continuance.</p> <p>A transcript of the order of the county granting administration, with the will annexed, is prima facie, evidence as well of the jurisdiction of the court, as of the facts stated in the order.</p> <p>Where issue is joined, on a plea denying that the plaintiff is administrator, proof that he is administrator, with a will annexed, supports the issue on the part of the plaintiff.</p>

<p>1. An adverse possession of more than 20 years, without any demarcation or defined boundary, but on land which is afterwards included in a survey and patent, neither of which were of 20 years’ standing at the commencement of the suit, furnishes no available defence in an ejectment. 1.</p> <p>2. It seems, that erroneous proceedings in removing a cause, under the laws authorizing a change of venue, will, in no case, produce a discontinuance. 2.</p> <p>3. When a jury are empannelled and sworn in a cause and do not return with a verdict before the end of the term, the termination of the court is, by operation law, a discharge of the jury, and another may be empannelled at the next term. 3.</p> <p>4. A motion to remand a cause, which has been removed by change of venue ought to be held to the same strictness, in point of time, as pleas in abatement. 4.</p> <p>5. Neither the delivery, nor the acceptance by the grantee, of a patent, is necessary to the consummation of title. 5.</p> <p>6. A citizen of Virginia, by removing into the Spanish dominions, in the year 1784 or 1785, with an avowed intention of permanently residing there, neither forfeited his right to lands in Virgina, nor disqualified himself from transferring a good title in such lands, to another citizen of Virginia 6.</p> <p>7. Hearsay evidence of the place of a man’s birth, is inadmissible. 7.</p> <p>8. When incompetent testimony, has been erroneously permitted to go to the jury, and afterwards, competent testimony of the same fact, has been introduced, the court of appeals must, nevertheless, reverse the judgment. 8.</p> <p>Statement of the case.</p> <p>An adverse possession of more than 20 years without any demarcation or defined boundary but on land which is afterwards included in a survey and patent, neither of which were of 20 years standing at the commencement of the suit, furnishes no available defence in an ejectment.</p> <p>It seems, that erroneous proceedings, in removing a cause, under the laws authorizing a change of venue, will, in no case, produce a discontinuance.</p> <p>Where a jury are empannelled and sworn in cause, and do not return with a verdict before the end of the term, the termination of the court is, by operation of law, a discharge of the jury and another may be empannelled at the next term.</p> <p>A motion to remand a cause which has been removed by change of venue, ought to be held in he same strictness, in point of time as a pleas in abatement.</p> <p>Neither the delivery nor the acceptance by the grantee of a patent, is necessary to the consummation of title.</p> <p>A citizen of Virginia, by removing into spanish dominions in the year 1784 or 1785 with an avowed intention of permanently residing there neither forfeited his right to lands in Virginia, nor disqualified himself from transfferring a good title in such lands to another citizen of Virginia.</p> <p>1 Dig. 548.</p> <p>Hearsay evidence of the place of a man's birth, is inadmissible.</p> <p>When incompetent testimony has been erroneously permitted to go to the jury, and afterwards competent testimony of the same fact has been introduced, the court of appeals must, nevertheless, reverse the judgment.</p>

<p>1. A deputy sheriff cannot legally execute a fieri facias which issued in his own name and for his own benefit. 1.</p> <p>2. The appointment of a constable, for the county generally, without assigning him any district, is not void. 2.</p> <p>Statement of the case</p> <p>A deputy sheriff cannot legally, execute a fi. fa which issued in his own name, and for his own benefit.</p> <p>The appointment of a constable for generally, without assigning him any district, is not void.</p>

<p>1. Where the original bill does not contain matter which would entitle the complainant to relief, no bill of review will lie for errors apparent in the record, however manifest such errors may be. 1.</p> <p>2. A bill filed for the purpose of obtaining relief on an entry for land, against an elder patent, must allege, in some intelligible language, the existence and notoriety of the objects called for in such entry. 2.</p> <p>Statement of the case.</p> <p>Where the original bill does not contain matter which would entitle the complainant to relief, no bill of review will lie, for errors apparent in the record, however manifest such errors may be.</p> <p>A bill filed for the purpose of obtaining relief in an entry for land, against an elder patent, must allege, in some intelligible language, the existence and notoriety of the objects called for in such entry.</p>

<p> The party against whom a judgment of eviction has been rendered, may, at a subsequent term, obtain an order for the appointment of commissioners under the occupying claimant law ; but not without notice to the opposite party, or his being present in court. </p> <p>Statement of the case.</p>

<p>1. The judgment of a territorial court, obtained after an appearance, is prima facie evidence, and an action of debt will lie on it. 1.</p> <p>2. Where a judgment is obtained against a defendant in an attachment, and afterwards a judgment for the whole amount is rendered in the same suit against garnishees, the latter judgment does not extinguish the former. 2.</p> <p>Statement of the case.</p> <p>The judgment of a territorial court, obtained after an appearance, is prima facie evidence, and an action of debt will lie on it.</p> <p>Where a judgment is obtained against a defendant in an attachment, and afterwards a judgment for the whole amount is rendered, in the same suit against garnishees,the latter judgment does not extinguish the former.</p>

<p>Relief denied on the testimony of one witness in support of the bill, in opposition to a positive denial in the answer.</p> <p>Statement of the case.</p>

<p> Notice of the dishonor of a discounted note may be given the day after the protest, where the parties reside in the same village. </p>

<p>1. In a suit brought by the assignee against the assignor of a note, for fraudulently misrepresenting the situation of the payor, the nominal amount of the note assigned is not the criterion of damages. 1.</p> <p>2. The sum given for the note, with interest on it, is a much more equitable criterion; but as the jury, in such actions, have a discretion, it seems to be improper for the court to instruct imperatively. 1.</p> <p>Statement of the case.</p>

<p> That the article purchased was of a worse quality and of less value than was represented, is not an available defence in an action of assumpsit for the price, if it was received, was of any value, and used by the defendant. </p> <p>Statement of the case-</p>

<p>1. Where the execution on which a writ of error coram vobis has been brought, is quashed by the inferior court, a writ of error to the judgment quashing it, is brought in the court of appeals, and that judgment reversed, the security in the bond given on obtaining the writ of error coram vobis, is liable to the plaintiff in the execution. 2.</p> <p>2. The writ of error coram vobis is, in this country, not a material part of the record in proceedings so characterised, inasmuch as it must issue in the same court to which it is returnable, and as a commission to the judges, to examine the case, can give them no more authority than they have directly from the law. 3.</p> <p>3. On a plea of nul tiel record to an action on a supersedeas bond in writ of error coram vobis, where it appears that a summons issued that both parties appeared, a trial was had and the plaintiff in the writ of error coram vobis, succeeded in the inferior court; the record is complete without the writ of error coram vobis. 3.</p> <p>Statement of the case.</p> <p>Where the execution on which a writ of error coram vobis has been brought, is quashed by the inferior court, a writ of error to the judgment quashing it, is brought in the court of appeals, and that judgment reversed, the security in the bond given on obtaining the writ of error coram vobis, is liable to the palintiff in the execution</p> <p>The writ of error coram vobis is, in this country, not a material part of the record, in proceedings so characterized, inasmuch as it must issue in the same court to which it is returnable, and as a commission to the judges to examine the case, an give then no more authority than they have directly from the law.</p> <p>On a plea of nul tiel record, to an action on a supersedeas bond, in a writ of error coram vobis, where it appears that a summons is sued, that both parties appeared, a trial was had and the plaintiff in writ of error succeeded in the inferior court; the record is complete, without the writ of error coram vobis</p>

<p>The obligor in a note, is a competent witness to prove the assignment, in an action, between the obligee and assignee, in which the fact of the assignment is contested. 1.</p> <p>Statement of the case.</p> <p>The obligor in a note, is a competent witness to prove the assignment in an action between the obligee and assignee, in which the fact of the assignment is contested.</p>

<p>1. No action will lie to recover the money collected on an illegal replevin bond, unless the bond has been quashed, or set aside. 1.</p> <p>2. A Justice of the peace has the same authority to quash an illegal or irregular replevin bond, taken on an execution issued by him, as courts have. 2.</p> <p>Statement of the case.</p> <p>No action will lie to recover the money collected on an illegal replevin bond, unless the bond has been quashed or set aside.</p> <p>A justice of the peace has the same authority to quash an illegal or irregular replevin bond, taken on an execution issued by him, as courts have.</p>

<p>1. The endorsement of a note to the payors, is an extinguishment of the note; and it cannot be revived, by their endorsing it to a third person, or to the original payee. 1.</p> <p>2. This principle applies as well to notes negotiated at bank, as to others. 1.</p> <p>3. But such endorsement, although it would not revive the extinguished note, would. if made on a valid consideration, create a new obligation on the endorser. 2.</p> <p>4. Where a note endorsed in blank has been improvidently filled up to the payors, (after several prior endorsements.) and by them endorsed to a bank, and a loan obtained on it, leave may be given to strike out the intermediate endorsement to the payors, and leave it as it was originally intended to be. 2.</p> <p>Statement of the case.</p> <p>The endorsement of a note to the payors, is an extinguishment of the note, and it cannot be revived by their endorsing it to a third person, or to the original payee.</p> <p>This principle applies as well to notes negotiated at bank, as to others.</p> <p>But such endorsement, although it would not revive the extinguished note, would, if made on a valid consideration, create a new obligation on the endorser.</p> <p>Where a note endorsed in blank, has been improvidently filled to the payors, (after several prior endorsements,) and by them endorsed to a bank, and a loan obtained on it, leave may be given to strike out the intermediate endorsement to the payors, and leave it as it was originally intended to be.</p>

<p>1. Where auditors have been appointed in a chancery suit, and have reported, and the parties afterwards consent that other auditors may be appointed, who also report, and a decree is rendered on the last report; neither party can assign for error, that the first report was not disposed of. 1.</p> <p>2. In no case will an assignment of errors questioning the regularity of appointing auditors in chancery, be attended to by the court of appeals, unless it appears, that the irregularity complained of, was prejudicial to the complaining party. 2.</p> <p>3. In decreeing the payment by an administrator, of the estate of the intestate, to the distributees, the most regular way, is, to make the execution of the refunding bond, required by the statute, a condition precedent to the payment. 3.</p> <p>Where auditors have been have been appointed in a chancery suit and have reported and the parties afterwards consent that other auditors may be appointed, who also report, and a decree is rendered on the last report, neither party can assign for error, that the first report was not disposed of.</p> <p>In no case will an assignment of errors, questioning the regularity of appointing auditors in chancery, be attended to by the court of appeals, unless it appears that the irregularity complained of, was prejudicial to the complaining party.</p> <p>In decreeing the payment by an administrator of the estate of the intestate, to the distributees, the most regular way is, to make the execution of the refunding bond, required by the statute, a condition precedent to the payment.</p>

<p> A motion to quash a replevin bond cannot be made in the name of the security only ; the principal must join. </p> <p>Statement of the case.</p>

<p>1. Belief in equity denied on a verbal contract for the sale of land, made before the statute of frauds was in force, sixteen years having elapsed between the accruing of the cause of action and the commencement of the suit.</p> <p>2. Where the appropriate remedy at law for the breach of contract, would be an action of assumpsit, five years will bar a bill in equity to have specific execution of the contract. 2.</p> <p>3. In case of joint rights, all the complainants must labor under some legal disability, provided for by the statute, to prevent the acts operating as a bar. 2.</p> <p>4. Equity will not decree the specific execution of a contract on which a court of law would not give damages. 2.</p> <p>Statement of the case.</p>

<p>1. The sale of a personal chattel held in adverse possession by another claiming it as his own at the time of sale, is void. 1.</p> <p>2. The right to maintain an action of trover, is not assignable. 1.</p> <p>3. That the person in possession claims by purchase from the same vender, immaterial; for if he claims the property as his own, his claim is adverse. 2.</p> <p>Statement of the case.</p>

<p>1. A person, by representing, for fraudulent purposes his own property to belong to another, forfeits all right to recover it from those who have acquired title to it under faith of such representations, notwithstanding they were contradicted by himself, before the purchaser acquired title. 1.</p> <p>2. It seems, that where the representations, made at different times, are irreconcileably contradictory, the purchaser has an election which to confide in. 1.</p> <p>Statement of the case.</p> <p>A person by representing for fraudulent purposes, his own property to belong to another, forfeits all right to recover it from those who have acquired title to it, under faith of such representations, notwithstanding they were contradicted by himself before the purchaser acquired title.</p> <p>It seem, that where the representations made, at different times, are irreconcileably contradictory, the purchaser has an election which to confide in.</p>

<p>1. The general rule is, that where the Complainants demand is merely legal, and his resort to equity is for the purpose of setting aside fraudulent conveyances of his debtor’s property, he must, before filing his bill, obtain a judgment at law. 1.</p> <p>2. But this rule does not apply, in this country, to cases where the debtor resides or has removed out of the commonwealth, so that no judgment can be obtained against him. In all such cases, resort may be had to chancery in the first instance. 1.</p> <p>3. Where a suit in chancery has been instituted to subject lauds fraudulently conveyed, to the payment of a debt, it gives the complainant a lien on such lands, commencing with the lis pendens. 2.</p> <p>4. In such case, the lien of the creditor first commencing suit, cannot be defeated by a voluntary setting aside the fraudulent conveyance, the grantees re-conveying to the grantor, and the grantor’s then mortgaging the land to other bona fide creditors, whose debts were due before suit was commenced. 2.</p> <p>5. The pendency of an injunction against conveying, &c. is not necessary, to give to the complainant creditor this preference and lien. 2.</p> <p>Statement of the case.</p> <p>Statement of the case.</p> <p>Statement of the case.</p> <p>The general rule is, that where the complainants demand is merely legal, and his resort to equity is for the purpose of setting aside fraudelent conveyances of his debtor's property, he must, before filing his bill obtain a judgment at law.</p> <p>But this rule does not apply, in this country, to cases where the debtor resides or has removed out of the commonwealth, so that no judgment can be obtained against him in all such cases, resort may be had to chancery in the first instance.</p> <p>Where a suit in chancery has been instituted to subject lands fraudulently conveyed, to the payment of a debt, it gives the complainant a lien on such lands, commencing with the lis pendens.</p> <p>In such case, the lien of the creditor first commencing suit, cannot be defeated by a voluntary setting aside the fraudulent conveyance, the grantees’s re-conveying to the grantor, and the grantor’s then mortgaging the land to other bona fide creditors, whose debts were due before suit was commenced.</p> <p>The pendency of an injunction against conveying, &c. is not necessary, to give to the complainant creditor this preference and lien.</p>

<p>1. A party in chancery can derive no advantage from evidence disproving a fact which has been admitted in pleading, however clear the proof may be. 1.</p> <p>2. On the affirmance of a decree in equity, the court of appeals must decree the costs of this court against the appellant. 2.</p> <p>Statement of the case.</p> <p>Statement of the case.</p> <p>A party in chancery can derive no advantage from evidence disproving a fact which has been admitted in pleading, however clear the proof may be.</p> <p>On the affirmance of a decree in equity, the court of appeals must decree the costs of this court against the appellant.</p>

<p>1. A surety in a bond for the conveyance of land, does not subject himself to a decree for the conveyance of his own land, in case of the principal’s default. 1.</p> <p>2. The remedy, in such case, against the surety, is not in chancery, but in a court of law. 1, 3.</p> <p>3. On a bond conditioned for the conveyance of land, if, at the time the suit is brought, there is no land, the conveyance of which can be decreed, the proper remedy is an action of law ; a bill for specific performance is unappropriate. 2.</p> <p>4. In such cases, a court of equity ought not to sustain the bill and decree compensation in money, unless it shall appear that adequate relief could not have been had at law, from circumstances supervenient and peculiar. 2.</p> <p>5. That the condition of the bond had been broken in the lifetime of the obligee; that the executor failed to bring suit on the bond, and delivered it over to the complainant, who was sole legatee and devisee, affords no ground for application to a court of equity, unless a cause is made out, showing, either that a specific performance could be obtained, or that the contract ought to be rescinded. 3.</p> <p>Statement of the case.</p>

<p>1. Want of notice of a mortgage recorded according to law, is of no avail, either in law or equity. 1.</p> <p>2. Want of notice protects a purchaser against a latent equity; not against the legal title. 1.</p> <p>3. The children of a female slave, born after the execution of a mortgage, are as much liable to the demand of the mortgagee, as she herself is. 1.</p> <p>4. Where slaves mortgaged are sold afterwards to different purchasers, they are all liable, in the hands of the respective purchasers, to the demand of the mortgagee ; but, as between the purchasers, equity will enforce contribution, on the principles of equality. 2.</p> <p>Statement of the case.</p> <p>Statement of the case.</p> <p>Want of notice of a mortgage recorded according to law, is of no avail, either in law or equity.</p> <p>Want of notice protects a purchaser against patent equity, not against the legal title.</p> <p>The children of a female slave, born after the execution of a mortgage, are as much liable to the demand of the mortgagee, as she herself is.</p> <p>Where slaves mortgaged are sold afterwards to different purchasers, they are all liable in the hands of the respective purchasers, to the demand of the mortgagee ; but as between the purchasers, equity will enforce contribution on the principles of equality.</p>

<p>1. An award made in pursuance of a parol submission, is valid. 1.</p> <p>2. When a submission is made to three, without expressly authorising a less number to make an award, all must concur ; but when an award has been made out and delivered by two, the third dissenting from the decision, but not expressing his dissent, under a mistaken opinion that the decision of the majority must prevail, the award cannot be set aside, or the effect of it defeated, by proof of these facts. 1.</p> <p>Statement of the case.</p>

<p>1. On a bond to convey land, the legal title to which is not in the obligor, a bill in chancery for a specific performance, may be brought; but to such bill the proprietor of the legal title is an indispensable party.</p> <p>2. If the object of the bill is to obtain compensation in damages for a non-compliance, chancery has no jurisdiction; a suit at law against the obligor is the appropriate remedy.</p> <p>3. After having commenced a suit in equity against the obligor and the holder of the legal title, praying specific and general relief, the complainant is not at liberty to abandon the suit against the holder of the legal title, the prayer for the appropriate relief, and take a decree against the obligor for compensation in money.</p> <p>Statement of the case.</p>

<p> Relief in equity against a gambling debt, denied; because an attempt, although ill-judged and abortive, had been made to defend at law. </p> <p>Statement of the case.</p>

<p>1. Where a testator devises a slave specially to an individual for 31 years, (that being the period when, according to the laws of the country, the slave would be free, if not registered) it may he evidence that the testator believed the slave would be free at that period, or that he intended to emancipate her ; but the devise for that period is not an emancipation ; especially, when, by the will, a residuary devisee of all estate not specifically devised, was constituted. 1.</p> <p>2. The act of 1808, limiting actions by persons held in slavery, is no violation of that clause of the federal constitution, which prohibits a state from passing, laws impairing the obligation of contracts. 2.</p> <p>3. Nor does it violate that part of the federal constitution, which secures to the citizens of each state, all the privileges and immunities of citizens in the several states. 3.</p> <p>4. Prior to the adoption of the constitution of the United States, each state had a right to make citizens of any persons they pleased ; but as the federal constitution does not authorise any but white persons to become citizens of the United States, it furnishes a presumption that none other were then citizens of any state ; which presumption will stand, until repelled by positive testimony. 4.</p> <p> 5. The said act of limitations does not violate the constitution of Kentucky. 5. </p> <p>6. A special plea, that the plaintiff is a slave, is a good plea in bar to an action of trespass, assault and battery, and false imprisonment. 6.</p> <p>Statement of tte ex-</p> <p>Statement the case. 0f</p> <p>Where a testator devises a slave specially to an individual for 30 years, (that being the period when, according to the laws of the country the slave would be free, if not registered,) it may be evidence that the testator believed the slave would be free at that period, or that he intended to emancipate her; but the devise for that period is not an emancipation ; especially, when, by the will, a residuary devisee of all estate not specifically devised, was constituted.</p> <p>2 Dig. 764.</p> <p>The act of 1808, limiting actions by persons held in slavery, is no violation of that clause of the federal constitution, which prohibits a state from passing laws impairing the obligation of contracts.</p> <p>1 Dig.</p> <p>Nor does it violate that part of the federal constitution, which secures to the citizens of each state, all the privileges and inmunities of citizens in the several states.</p> <p>Prior to the adoption of the constitution of the United States, each state had a right to make citizens of any persons they pleased; but as the federal constitution does not authorise any but white persons to become citizens of the United States, it furnishes a presumption that none other were then citizens of any state; which presumption will stand, until repelled by positive testimony.</p> <p>The said act of limitations does not violate constitution of Kentucky.</p> <p>1 Dig. 41.</p> <p>A special plea that the plaintiff, is a slave is a good plea in bar to an action of trespass, assault and battery and false imprisonment.</p>

<p>1. A declaration on a constable’s bond held sufficient. 1.</p> <p>2. All reasonable inferences from the facts proved, are to be indulged on a demurrer to evidence. 2.</p> <p>3. Where a defendant pleads performance of the duties required, he ought not to be permitted to demur to evidence tending to show his responsibility to perform them, because by his plea he has admitted the facts which such evidence conduces to prove. 3.</p> <p>Statement of the case.</p> <p>A declaration on a constable’s bond, held sufficient.</p> <p>All reasonable inferences from the facts proved, are to be indulged on a demurrer to evidence.</p> <p>Where a defendant pleads performance of the duties required, he ought not to be permitted to demur to evidence tending to show his responsibility to perform them; because, by his plea, he has admitted the facts which such evidence conduces to prove.</p>

<p>1. Notice to a subsequent purchaser, of an adversary claim, will be inferred from the occupancy and cultivation of the land by such adversary claimant, at the time of the purchase. 1.</p> <p>2. It is presumed, that every purchaser knows whether he is purchasing woodland or land under cultivation ; and if under cultivation, that he ascertains whether the occupiers are to hold the land under him or in defiance of him. 1.</p> <p>3. Construction of a deed of conveyance, as to the quantity of land which passed by the deed. 2.</p> <p>Statement of the case.</p> <p>Statement of the case.</p> <p>Notice to a subsequent purchaser of an adversary claim, will be inferred from the occupancy and cultivation of the land by such adversary claimant, at the time of the purchase.</p> <p>It is presumed, that every purchaser knows whether he is purchasing wood land, or land under cultivation, and if under cultivation, that he ascertains whether the occupyers are to hold the land under him, or in defiance of him.</p> <p>Construction of a deed of conveyance as to the quantity of land which passed by the deed.</p>

<p>1. A plea of set-off to apart of the plaintiffs’ demand, and payment of the residue, is a good defence. 1.</p> <p>2. Example of such a plea held sufficient. 1.</p> <p>Statement of the case.</p> <p>A plea of set-off to part of the plaintiff’s demand, and payment of the residue, is a good defence.</p> <p>Example of such a plea, held sufficient.</p>

<p>1. A purchaser cannot sustain a motion to quash a sale of property under execution on a credit, admitting that the laws authorising it to be sold on a credit are unconstitutional. 1.</p> <p>2. A sale of real estate taken in execution, may be made on the premises. 2.</p> <p>3. The act of 1798, to reduce into one the several acts subjecting lands to sale for the payment of debts, does not repeal the 4th section of the act of 1792, on the same subject. 2.</p> <p>A purchaser cannot sustain a motion to quash a sale of property under execution on a credit, admitting that the laws authorizing it to be sold on a credit, are unconstitutional.</p> <p>Ante, p. 19.</p> <p>A sale of real estate taken in execution, may be made on the premises.</p> <p>The act of 1798, to reduce into one the several acts subjecting lands to sale for the payment of debts, does not repeal the 4th section of the act of 1792, on the same subject.</p>

<p>In an action on a covenant to convey land, the giving or withholding of interest is a matter in the discretion of the jury, which discretion they should be left to exercise free from any intimation of opinion by the court. 1.</p> <p>Statement of the case.</p> <p>In an action on a covenant to convey land, the giving or withholding of interest is a matter in the discretion of the jury; which discretion, they should be left to exercise, free from any intimation of opinion by the court.</p>

<p>Page 290, ante.</p>

<p>1. A bill in equity for the specific execution of a contract may contain a prayer for compensation in damages, if the appropriate relief cannot be obtained, and under particular circumstances compensation in damages will be decreed. 1.</p> <p>2. But in such case, it is improper to decree interest until paid on the sum allowed as compensation. 2.</p> <p>Statement of the case.</p> <p>Statement of the case.</p> <p>A bill in equity for the specific execution of a contract, may contain a prayer for compensation in damages, if the appropriate relief cannot be obtained ; and under particular circumstances, compensation in damages will be decreed.</p> <p>But in such a case, it is improper to decree interest until paid on the sum allowed as compensation.</p>

<p>The former opinion of the court in this case, (2 Marshall 335) expounded and applied.</p> <p>Statement of the case.</p>

<p> No appeal will lie on a judgment for costs only, although the suit in which the appeal is taken is for the restitution of a freehold. </p> <p>Statement of the case.</p>

<p>1. A bill in equity will not lie in behalf of a prior patentee out of possession, against a junior patentee in possession, 1.</p> <p>2. A certificate of survey, made out by a deputy surveyor of the county where the land lies, is prima facie evidence of a survey's having been executed at the time it purports to have been. 2.</p> <p>3. The extent and application of the compact with Virginia respecting the right of Kentucky to prolong the time of surveying entries, discussed. 3.</p> <p>4. It seems, that all the savings in the Kentucky act of 1797, which were not in the Virginia act of 1785, are void, where they operate to the prejudice of other Virginia claimants ; but valid, as far as they operate to the prejudice of the state of Kentucky only. 3.</p> <p>5. Partners in rights to land must all be parties in a suit against an adversary claimant ; and if all do not join, the bill must be dismissed, but without prejudice. 4.</p> <p>Statement of the case.</p> <p>A bill in equity will not lie in behalf of a prior patentee out of possession, against a junior patentee in possession.</p> <p>A certificate of survey made out by a deputy surveyor of the county where the land lies, is prima facie evidence of a survey having been executed at the time it purports to have been.</p> <p>The extent and application of the compact with Virginia, respecting the right of Kentucky to prolong the time of surveying entries, discussed.</p> <p>It seems that all the savings in the Kentucky act of 1797, which were not in the Virginia act of 1785, are void, where they operate to the prejudice of other Virginia claimants; but valid as far as they operate to the prejudice of the state of Kentucky only.</p> <p>Partners in rights to land, must all be parties in a suit against an adversary claimant; and if all do not join, the bill must be dismissed, but without prejudice.</p>

<p>1. Case of a will ; a species of mental derangement in relation to particular subjects, and confined in its operation to them, proved.</p> <p>2. Where a man is insane, in respect to his nearest relations and the disposition of his estate, he is incapable of making a valid will, notwithstanding he may on every other subject be of sound mind.</p> <p>Statement of the case.</p> <p>Note—The preceding remarks embrace so much of the petition for a re-hearing, only, as involves the question of occasional or partial insanity. It was contended, that the decision was not warranted by the testimony; and that if Moore were deranged on the subject of his kindred, consistency required the court to pronounce him deranged, also, on the subject of the payment of his debts, &c. wherein his conduct was equally inexplicable. These are topics, however, affecting the present case merely, and, therefore, not calculated to illustrate the principle established by the decision.</p>

<p>1. Under the present state of our laws, the liability of an executor for costs is precisely the same that it is for the debts of the testator, and the judgment should direct both to be levied out of the assets unadministered. 1.</p> <p>2. A covenant of general warranty in a deed of conveyance, runs with the land, and a remote grantee, on being evicted, may maintain an action of covenant against the first warrantor for all damages and costs incurred. 2.</p> <p>3. But for the eviction of a remote grantee, the immediate grantee cannot, by force of the covenant of warranty, (that having been assigned to and vested in the remote grantee,) maintain an action against his immediate warrantor, unless he shall have compensated such remote grantee. 2.</p> <p>Statement of the case.</p> <p>Under the present state of our laws, the liability of an executor for costs, is precisely the same that it is for the debts of the testator, and the judgment should direct both to be levied out of the assets unadministered.</p> <p>A covenant of general warranty in a deed of conveyance, runs with the land, and a remote grantee on being evicted, may maintain an action of covenant against the first warrantor, for all damages and costs incurred.</p> <p>But for the eviction of a remote grantee, the immediate grantee cannot, by force of the covenant of warranty, (that having been assigned to and vested in the remote grantee,) maintain an action against his immediate warrantor, unless he shall have compensated such remote grantee.</p>

<p>1. A sale made by a sheriff, adjudged not to have been fraudulent or collusive on the evidence exhibited. 1.</p> <p>2. A plaintiff who has had an execution issued and endorsed under the law, authorising lands to be sold on a credit of one year, and by his agent has bid at the sale, cannot object to the constitutionality of the act. 2.</p> <p>3. He is bound by the acts of such agent. 2.</p> <p>A sale made by a sheriff adjudged not to have been fraudulent or collusive, on the evidence exhibited.</p> <p>A plaintiff who has had an execution issued and endorsed under the law authorising lands to be sold on a credit of one year, and by his agent has bid at the sale, cannot object to the constitutionality of the act.</p> <p>He is bonnd by the acts of such agent.</p>

<p> A location for land held invalid, principally on account of ambiguity in the certificate and entry. </p> <p>Statement of the case.</p>

<p>1. A plea alleging that the note on which suit is brought was given to secure the repayment of money lent for the purposes of gambling, is not required to be sworn to.</p> <p>2. Not by the act of 1801, because such plea does not deny the execution of the note; not under the act of 1814, because it is only to the pleas allowed by the act of 1801 that the latter act applies.</p> <p> 3. Wherever a writing was declared void by statute, it was always admissible for a defendant in an action on such writing to avoid it by plea. </p> <p>Statement of the case.</p> <p>1 Dig. 257.</p> <p>1 Dig. 265.</p>

<p>1. A survey executed and recorded extinguishes the authority derived from the warrant.</p> <p>2. The production of a copy from the record of a prior survey, is prima facie evidence of its having been executed and that it was done under the authority of the proprietor of the warrant.</p> <p>Statement at the case.</p>

<p> It must be a very clear case which will authorise a court of chancery to set aside the report of commissioners appointed to assess the value of improvements and the amount of waste, on the single ground that the assessment is too high. </p> <p>Statement of the case.</p>

<p>1. Where a complainant in chancery merely claims in his bill in his own right, property seized by execution as belonging to another, the defendant in the injunction, [plaintiff in the execution] can sustain no damage except the delay of selling that particular property, the injunction leaving him at liberty to proceed against all the other property of his debtor.</p> <p>2. If the injunction is dissolved, the amount of such damages and the costs occasioned by the injunction, is the measure of recovery on the injunction bond.</p> <p>3. A misrecital in the injunction bond, of the order of injunction, shall not subject the surety to the payment of the judgment at law, when it appears from the injunction itself, that the collection of the judgment was not enjoined.</p> <p>Statement of the case.</p>

<p>Vide ante page 117, the same case. The present opinion was intended by the court, to have been a substitute for that; but as the Reporter was not furnished with the original of either, and as both were entered on the order book, without any intimation that both were not in force, the Reporter understood them to be different cases between the same parties, until long after the former opinion was printed.</p> <p>1. A judgment rendered without service of process, actual or constructive, in an original suit, where the law requires the service of process, is void.</p> <p>2. But this principle does not apply to judgments on scire facias against bail; because there, the law authorises the rendering a judgment, after an ineffectual attempt to serve the process ; because the bail is, quasi, a party to the suit, and the scire facias is rather a judicial, than an original writ.</p> <p>3. Our courts are bound to know, judicially, what the laws of Virginia were, before the separation.</p> <p>4. A judgment rendered in Virginia, on a scire facias against special bail, upon a return of the first writ, not found, and no inhabitant of my bailiwick, and of the second, no inhabitant of my bailiwick, is a judgment of a sister state, to which full credence ought to be given, under the constitution of the United States.</p> <p>Statement of the case.</p>

<p>Petition for a rehearing presented, and on the 16th of June 1821, overruled.</p> <p>1. A grantee by general warranty under a junior patent, may file a bill in chancery against those holding adverse interfering claims, without waiting the commencement of any suit at law by them; and a loss of the land in such suit will entitle him to recover the value of the land from his warrantor. 1.</p> <p>2. A bond was executed in 1784, conditioned to convey 500 acres of land, as soon as a patent should issue from the register’s office, containing also, a provision for the conveyance of other land, equal in value, if that should be lost: Held, that the object of the bond was to provide for the contingency of the land’s being lost before a deed of conveyance was executed, and did not extend to an eviction after the execution of a deed of conveyance with general warranty. 2.</p> <p>3. In this case, there was a breach of the condition of the bond, by failing to execute a deed of conveyance, suit was brought, and in 1805 a compromise made and a deed with general warranty executed: Held, that the value of the land in 1805, with interest, &c. when the deed, was executed, and not in 1784, was the measure of damages. 2 and 3.</p> <p>4. The value of the land at the time of the contract, with interest and costs, is the measure of damages ; the consideration paid for it, is evidence of that value. 4.</p> <p>Statement of the case.</p> <p>A grantee, by general warranty under a junior patent, may file a bill in chancery against those holding adverse interfering claims, without waiting the commencement of any suit at law by them, and a loss of the land in such suit, will entitle him to recover the value of the land from his warrantor.</p> <p>A bond was executed in 1784, conditioned to convey 500 acres of land as soon as a patent should issue from the register’s office, containing a provision for the conveyance of other land equal in value, if that should be lost—held, that the object of the bond was to provide for the contingency of the land’s being lost before a deed of conveyance was executed, and did not extend to an eviction after the execution of a deed of conveyance with general warranty. In this case there was a breach of the condition of the bond, by failing to execute a deed of conveyance ; suit was brought, and in 1805, a compromise made, and a deed with general warranty executed—held, that the value of the land in 1805, with interest, &c. when the deed was executed, and not in 1784, was the measure of damages.</p> <p>The value of the land at the time of the contract, with interest and costs, is the measure of damages ; the consideration paid for it, is evidence of that value.</p>