Volume 12 — Kentucky Reports

<p>N. B. The figures at the close of each paragraph designate- the sections in the opinions where the principles stated will be found.</p> <p> 1. In a contract to pay money oñ d contingency, the happening of that contingency must be alleged and proved before a judgment at laid can be Obtained; consequently, a bill in equity enjoining the judgment, cannot be sustained on the ground that the contingency has not occurred. 4. </p> <p>2. The existence of an elder adversary patent covering the land purchased, is not a sufficient ground in equity to enjoin the recovery of the purchase money where the vendor shews an adversary possession of more than twenty years in himself and vendee, and the complainant does not shew that the proprietor of the elder patent has asserted his right, or that his right of entry is saved by Borne of the exceptions in the act of limitations. 5.</p> <p>In a contract to pay money on a contingency, the happening of that contingency must be alledged and ■proved before a j udg ment at law can be obtained ; con» sequently, a bill in equity-enjoining the judgment, cannot be sustained on the ground that the contingency has net occured.</p> <p>The existence of an elder adversary patent covering the land purchased. is not tt suffi- ient ground in equity to enjoin the recovery of the purchase money, where the vendor shews an adversary possession of more than twenty yews vendee,2 and the complain ani do--s not íropr'r^'or'of the elder pa,teilt asrf'ht or^ha1”¡f right of*” entry’is savedby ,ome oftheexceptions in the act of Umitations-.</p>

<p>1.A letter of attorney authorizing the conveyance of all lands which the ancestor of the grantor of the power had obligated himself to convey, and a deed executed by such attorney, expressing to be for the considera. tion of one dollar, are not facts from which a jury can lawfully infer that the ancestor had obligated him. Self to convey the land ; and it is the duty of the court, if called on, so to instruct the jury. 3 & 4.</p> <p>A letter of thorism tT convevan-eW W all lands wbichthean. grantor°ofthe the power had obligated cutedby sucl‘ attorfa? the coti&ideration of not'facts fvom whicha jury can law-^j'y *nier cesior had" obligated himseli to js tj,é duty 0f the court, if called on, so tilejury.</p>

<p>1. If a notice to a Sheriff f and his securities J for his failing to return an execution, sufficiently apprizes them what is demanded, and points out the execution intended, it is sufficient 1.</p> <p>2. Where the execution issues to the Sheriff of a county, different from that in which the judgment is rendered, the motion against the Sheriff for failing to return it, must be made in the county where it issued. 2.</p> <p>3. Issuing an alias execution is noforfeiture of the plain, tiff’s right toproceed against the Sheriff and hiss'cnrities, if a month had elapsed after the jirst ought to have been returned, before such alias issued. 3.</p> <p>4 & 5. That the debt has been replevied or enjoined; is no legal defence for the Sheriff in such motion. 4 & 5.</p>

<p>1. A bill in equity for the recovery of a slave, ought not to be substituted in lieu of an actibn at law to enforce a mere legal right; and if it is, the statute of limitations will bar it as much as it would a suit at law. 3.</p> <p>2. An admission in an answer in chancery, of a bill of sale, on which the complainant relies, supersedes the necessity of proving its execution on the trial. 4.</p> <p>3. It is a general principle, that equity will not interfere to relieve against any arrangement voluntarily made by both parties, with anintention to delay, hinder or defraud the rights of creditors, or affect unjustly the rights of others 6.</p> <p>4. A writing, secretly intended to be a mortgage, but made on the face of it an absolute bill of sale, for the purpose oj‘ securing the property from, creditors, will be construed an absolute bill of sale against the maker of it and all persons deriving title from him with a knowledge of such intention. 6.</p> <p>A bill in quity for the sfave^might not tó be substituted m tíon atiawrto enforce a rnerelegal riglu ; and if statiitVof limibuions will bar it as much as at lav/.</p> <p>Anadmission 1Ir a¡}•finSfei’ sale on° whishthe complainant , relies, super*®des the^neproviv>g°its execution on the trial,</p> <p>It is a general principle, that equity wi'l nót inferiere to relieve against any arrangement voluntarily made by both par ties, with an Intention to delay, hinder or defraud the right of creditors, or affect unjustly the rights of others. A writing, secretly intended to be a mortgage, but made oh the face of it an absolute bill of sale, for the purpose of securing the property from creditors, Will be construed an ab soluie b'll of sale against tbe maker of it and ail p er-sons deriving title from him witc a knowledge of such intep iron.</p>

<p>1. An inland bill of exchange which has been discounted by the Farmers and Mechanics’ Bank, is put on the footing of a foreign bill of exchange, as to the mode of recovery and right of action. 4.</p> <p>2. Under the act of (798, the said Bank may maintain a joint action against the drawer and surviving endorsers (where one has died J of an inland bill of exchange, discounted by them. 4.</p> <p>3. And the law is the same, whether the bill was endorsed to the Bank or to its Cashier, if it was discounted by the Bank. 5.</p> <p>4. The law requires no greater diligence in giving notice of the dishonor of a bill from the person to whom it is transmitted for the purpose of collection at the , place of payment, than it requires from the endorsee or purchaser. 8.</p> <p>An Wand chan^ewhicb has been dis counted by the Farmers ics’ Bank is puton the footjng of'a S'clmnge to the mode of recovery action^1*"0Í</p> <p>Under the act of 1798, the said bank maintai a^oiiít action against the ¿rawer and dorsei-s"6 en* (where one has died,) of t^han”^ discounted65 by them,</p> <p>1 192-'</p> <p>Anri the law the same d ise"l to the bank or to its cashier if it ^d by the1*1" bank;</p> <p>The law requires no greater diligence in givinp notice of the dishonor of a bill from the pe'scn to whom it is transmitted for the pur¡ectiqn at°the place of payment than it ^m'the endorsee or purchaser.,</p>

<p> 1.An examination of the competency of an interested witness. 4 <§• 5. </p> <p>Servants or agents are competent witnesses without a release to prove the payment or receipt of money, or the delivery of goods on behalf of their principals, though their evidence tends to discharge themselves. 6.</p> <p>An examination of the competency of air interested witness . ervants or agents are competent re. ieaSe to prove the money,or the delivery of j=Ndsf°? ’?e" principals*1 though their evidence ]i"df \°. fll3‘ S,1 *"’</p>

<p>1. A complainant in equity in a land case, can derive no benefit at the hearing, from a certificate of survey not alleged in his billn >r asserted in the pleadings as a part of his■ title, notwithstanding he shall prove his right to.it, and that it includes the land in contest. 2.</p> <p>2. The laws protecting actual settlements against removed certificates, were designed to protect actual settlers holding claim.s which were supposed to be defective, and contain no provision Strong enough to. warrant a decree against the elder legal title, in favor of a person Having no claim. 4. •</p> <p>8. The right of pre-emption secured by the act of Feb. 6th, 1815, must be taken advantage of by obtaining a certificate from some court pointed out in the acti 5.</p> <p> 4. The preference given by that act extends only to claims originating under the same act, not to claims arising under former, acts. 5. </p> <p>2 Dig. 806.</p> <p>^E' 80®'</p> <p>*■ Dig. 724</p> <p>2 Dig 806.</p>

<p>■1. The proprietor of an equitable title to land, who has commenced a suit for the recovery of the legal title, sells his claim and agrees to convey as soon as he shall obtain the legal title. The time of payment of the purchase money is fixed, and it is stipulated by tile pur. chaser that payment shall not be withheld on the ground ef the vender's not being a,hie to convey when the pur. chase money shall become due. This stipulation, if obtained without misrepresentation or concealment, is valid. 3.</p> <p>2. In such case it is the dn*y of the vender to prosecute the suit with reasonable diligence. 4.</p> <p>Thepropriet01'tl)etiUe to landf who has ced a suit for oftheTegairy title, sells his claim and agrees to as he shall obtain thelegal title. paymen^of {¡he purchase morey isfised and it is the pui-cka-y ser that pay. shall heid^o^the ground of'the vender’s not bein& aW?to the^mrchas& money shall become due. tíÓnS ifob^* tained with-out misreyEecs„Int^li0ft met,t3'isv s!k?. In such case,' the duty to ^rosec^1" the^uirivitfe reasonable diligence,</p>

<p>1. The notoriety of the Kentucky River by that name, on the 4th day of June 1780. will be presumed. 2. ■</p> <p>2. The notoriety of an old Military Survey will not be presumed. 2.</p> <p>The notoriety of the Ken tucky River by 1 hat name on the 4ih dav of June 17S0 .will be presumed. The notoriety of an old military survey will not bepresumed</p>

<p>1. The material call in the entry was to adjoin John South’s pre-emption of \ 000 acres on the waters of Licking. Three pre-emptions of 1000 acres each on the waters of Licking, wete shewn: One in the name of John South, senior, one in the name of John South, junior, and one in the name of John South, heir at law of Thomas. This uncertainty renders the, entry void.</p> <p>2. There is no reason in. such case for attaching the entry to the pre-emption of John South, senior, in preference to the others ■</p> <p>The material call in the en-j^n^iohn* " south’s preeruption of thewaw^of Lickhig * Three prens of *aotl on^the waters of Uckingwera j^he'namef Qf J0hn South, sen. in 'he g*“®h° i°n<n and one ia the name of John South, heir at law to •Thomas. This uncer. tainty rentier^'the entry yoid.</p> <p>There is n® rea«,n in attaching the entrv to ^ g““,™ ^preference to the others/</p>

<p> An entry for land adjudged invalid, </p>

<p>1. The purchase of a bill of eócchange by the officers of a Branch Bank, authorized by the Directors to make such purchases, is a discounting the bill by the bank. 3.</p> <p>2. Jl bill thus discounted, occupies the rank of a foreign bill of exchange, notwithstanding all the parties to it reside in the state. 3. .</p> <p>é. On such a bill being protested, notice Att writing of the dishonor^ is not necessary to entitle the holder to recover against the drawer and endorsers ; verbal notice is sufficient. 4.</p> <p>4. If one of the partners of a firm, has been in the habit of endorsing the name of the firm on bills of exchange as security, it is a fact from which the jury may legally infer, that he had authority from the other partners so to do ; and evidence of such practice ought to be admitted. 5.</p> <p>5. The bona fide holder, for a valuable consideration, without notice, of a bill so endorsed, will recover the amount against all the partners, notwithstanding the endorsement of the name of the firm, was expressly prohibited in the articles of partnership. 6.</p> <p>Thepurchase of a bill of. the officers*^ of a branch bank, author^gCt^s mate such purchases, is a^C0?‘ÍÍiPs ^ y</p> <p>1 Dig. 192.</p> <p>A bill thus discounted* occupies the rank of a this state. u foreignbiiiof exchange, notwithíhepardesto itresidein</p> <p>1 D.ig. 144</p> <p>ry"to1,'entufó tie holder to recover aIrawer and endorsers; verbal notice is sufficient. Q.n ajich a bill being ' protested, notice in writing of the dishonor, is not iv-cessa-</p> <p>If one of the. j^^tsbeen in the 1)abit rf endorsing the name of change,as se. curity, u is a the le. gaily infer, that he had er partners so to do, and ought to be° admitted,</p> <p>The bona |freahv0a'^ayie consideWtion, without a'^1|<?eao°g^ doiéchwilí recover the Sl’"*st a11 the withstanding the endorsement oi tlie name ot the press!ySpro' hibiiedin the anides of partnership,</p>

<p>A partner in the location of land warrants, may adjust with the party injured by the personal default of his co.partner, the compensation to be made, and has an equitable demand, at least for his rateable part, a. gainst the defaulting partner. 2.</p> <p><Aparther onlnd^war just with the party injur sonaf detwlt of his co-part per, the com le made "and has an ¿cjuitabledamand, at least for páftiígainíTt the defaultipg partner,</p>

<p>S. Where money is due and there is an agreement to ac. cept something else in lieu of the money, though of less value, the agreement cannot be said to be without con. sideralion ; therefore it is valid. 3¿</p> <p>!S. Where a larger sum than seven hundred and fifty dollars is owing', and actually due in money, an agree„ ment to receive seven hundred and fifty dollars worth of salt, and the actual reception of it in discharge of the whole debt, is a discharge. 3.</p> <p>where mo. SeémmvTto fccept ,ome. thing else in Heu of the Qf less value,the agreement without consideration; where"» largcr sum than $7S0 is ow-inU' money, an a-green ent to receive g75G ^theactu* al reception ot'.tindis^f^bt ¿3 á discharge</p>

<p>1. In a declaration for a demand, which, according to the contract, was to accrue on the performance of a condition precedent, it is necessary to aver the performance of such condition. 2.</p> <p>g. In such case, if the performance of the condition precedent, is, at the same time, the consideration of the sum to be paid, and is continuous in its character, no excuse for its non performance, can be admitted. 2.</p> <p>3. Just before the close of the late war, the obligor bound himself to pay the obligee 881 50, provided he should perform a tour of duty of six months, under a partic. ular Captain and obtain a legal discharge for the obligor. The obligee served 18 days and was then discharged in consequence of peace having been proclaim, ed. It wa¡s held that he could recover nothing. 2.</p> <p>decláre tíonfor a ma¡nd* which, according t® the conn-act a,'cru® coi,-otF--'! ent.t tv'rthe^ ce of uncon- ¡, . ’fhe^'ermp’ m-mcr- ,.f the condition auholamV* time the con«deration of su5*to ^continu-" ousin its cimrscter.no noiTperfor-*8 mance can be admitted, ^ lat^vvar the obligor * bound him*, the obligee gsi 50q,ro. vided he Per" of’ddf-of'six months under aparticobt^a'iegS discharge for the obligor, ^bee°bb^ee WJfs then disrhats gediu conse. °* peace having faeén proclaimed, it that he could recover nothing.</p>

<p>After arbitrators have made out and returned an award, their authority ceases, and consequently any award made afterwards is void, and the judgment on it is erroneous. I.</p> <p>Although the first award made out and returned, was invalid, for wont of the solemnities required by law, yet the making out and returning it, terminated the authority of the arbitrators. 2.</p> <p>¿Sors have snade out and returned an ceares and consequentJy, any award wards^is1" void,and the judgment on T/3 fir-ifawiml16 insde ou.t and JHlr™<r.Wils invalid for want of the ¡►dcmnities required l>y Jaw yet the making out and relui'ningit," terBiimired the lui'hority Of tbs arbitrators.</p>

<p>The act of 1809-10, empowering the defendant in chancery to state interrogatories in his answer, and make it answer as a cross bill, gives him all the rights that a complainant in a cross bill has, according to the En. glish practice. 3.</p> <p>2. Consequently, if the complainant, in the original bill, discontinues his suit, he does not thereby p d the defendant, whose answer is in the nature of a cross bill, oid of court; bid he may proceed and have a decree thereon. 3.</p> <p>8. A bill in chancery cannot be sustained to recover land from one who has been twenty years in possession, prior to the commencement of the suit,under a title,from an adverse grant. 5.</p> <p>4. The fact that the complainant'’s patent was not twenty years old at the time he commenced his suit, will not avail him. 3.</p> <p>The act of l809 — 1°.> dan,t m chahp«y 10 state riesm°hisah'. syrerand make it ad^Vbill g-ves the rights which the ““crossbUl has. accetding to the Kn¡?}isb *</p> <p>Consequently if be com the"V<nal biT ‘¡scontim.es his suit he do.-s put1 be' díf fe-. (!an , wlu.s;' an Miure of#1* ero!,* biti,out of court, but he may pro sTdecree ^ thereon i Dig. 228.</p> <p>AVUia ?°an "a°med t0 re. cover laud fromonewho ^raTrTpossession prior t< the com-under a title from an adtheco^plainaut’s pwent was not 20 ^“hé°ime he COuimen. cert his suit, not ailITl4</p>

<p>%. Actual possession of the land under a bond from the patentee, is not an available defence to an action of trespass, quare clausum fregit. 3.</p> <p>2. Afar will the circumstance of the plaintiff’s having purchased and taheña deed from the patentee, f>r the same land, with fill notice that the defendant was in-possession, and had the patentee’s bond for a convey. anee, alter the case. 3.,</p> <p>/vct,ial poss- ;sion of the, land under a jpe^atentee ;s a„ a. vnilable iiefenfe toaa trespass, Quaaredcm* suwjregii. ^tcumst<mc& 0r the plaintiff’s tawing ¿ted from* the patentee forthe same (yi^otice that the defendant was FuSSieSv°B patentee’s6 bond for a convej anee/ ^</p>

<p>1, Under the former constitution of Kentucky, a sheriff was not required to be commissioned by the governor, except in the case of vacancies and the erection of new counties. 2.</p> <p>2. The power to sell and convey lands for the r on pay. ment of taxes, is entire, and the officer who sold while in office, may lawfully convey, after he is out of off fee. 3,</p> <p>S. A sheriff having sold land fir the non payment afiances, shall be presumed to have complied with the law, until the contrary is shown,- 4.</p> <p> 4. A mistake as to the quantify of the tract offered for sale, will not. vitiate the sale, if it is otherwise sufficiently identified. 5. </p> <p>5. The purchaser of lands, sold for the non payment of taxes, holds adversely to the former owner ; consequently, he can avail himself of 20 years’ udversepossessio?i. 6.</p> <p>■Wnciev the former conKentu°kyfa shenff was not required to be com thegovtomoj^ excepti» the case ofva the^erection of newcoun-a ties.</p> <p>Thepower to sell and for the nonpayment of and Cüie oiBeer who 6</p> <p>sold while in Owfui^'coiivey after he" is out of office-</p> <p>havingsold land for the non-payment ”¿^*6 piesumed toP have compliwitl> ;¡ieh cTmrary is ° shown/</p> <p>a mistakeas to the quan°ft£e . trsct ottered sale> wjp not vitiate sale, if it s^fficiemTy86 identified/ flie purchanonpayment oí taxes, holds ad- ■ /////ner owner; conquently he g//™!/1™" ofyears’adver^a possesion/</p>

<p>1. Í11 a suit against an executor, on an obligation to pay out of any part of the estate of the testator in his hands as executor, the i xecutor is not estopped front pleading lack of assets. 2.</p> <p>2. On such contract, the consideration being a debt due by the testator, the executor is not liable further than he has received assets; and if he has received no assds, is not liable at all. 2.</p> <p>in a suit agaiust mi ex« pay out°of ai ny part of estate of as executor, the executor pieading lac$i of assets,</p> <p>0n 3uch eoarconsidera00”' tion being a debt due by exe- uto» ¡‘s not ej¡at>le further than bebas re ^dft' h^hag received ho assets, is not hable at all-,</p>

<p>t. Where a man having the equitable, but not the legal title to land, covenants to convey it with general war. ranty, if he causes the holder of the legal title to con. veq to the covenantee, and thereupon executes a deed with covenant of general warranty, himself, it is a compl'ance with his contract. 5.</p> <p>2. In a contract for the purchase of land and a mill, and to let the vendee have a good road to it, through the land of the vender, the stipulation for a road forms an integral part of the contract. 6.</p> <p>3. Mthough. in compliance with his contract, the vender shall have conveyed the land and mill. yet. if the vendee shall, by the act of the vender, be deprived of the road to it, he piay enjoin the recovery of the pur*, chase money until justice shall be done, 6,</p> <p>4. St is no objection to the jurisdiction of a court of chan eery, that damages might have been recovered brea ch of contract in a suit at law- 6. .</p> <p>5, On a contract to convey • land, a deed had been ten. dered and refused, and a suit in chancery on the ground, that the land described in the deed was not the identical land the complainant was entitled to. and the defendant died pending the suit which was revived against his heirs. The court was of opinion, that the land contained in the deed so tendered, was the whole land which the defendant was bound to convey — held, that the heirs ought to have been decreed to execute or deed similar to that tendered by their ancestor. 7.</p> <p>jyhereamsñ but not the >pga> title to ,and- cove' vey^VwftU*” general war. rantv, ifhe offhe legal title convey to. tl,e ««venan, thereupon ex-cutes a det’d ”'ith covenaj1t of fantyhim'seif iris a com- * P!’-ance with jnsa conTi^t for the purchase of land tolet’I vendee^ave a good road t«it through vehder the stipulation for a parrot the contract, Although iso, v/iU^hi-Tcon; tract, the</p> <p>vender Shall edVthe landy' and mill, yet if the vendee shall, by the vender, be aeprvédof the road to ioin^he re” eove,y of the purchase ie°don«\ * -it is no ob.jection to tbs of^court^of chancery, •that damages might have eredfbi'C°V" breach of contract in a Ou^acontract to convey land, a deed had been ten-feed andT' ■suit in chan•ery on the thehnd de^ scribed in the deed was not the identical piainant^as entitled to, and the defendant^ died suit winch was revived againstliis hears. he</p> <p>court was of op'nion that íained'in^he det-d so tendercd; was ¡^^which thedtfendant was bound to ^d fhatthe heirs ought to have beea s-milav to that tendered by j^®ir ance</p>

<p> 3 person who purchases a tract of land with notice that his vender had entered into a covenant to another to let him have a road through it, will be decreed inequity, to permit such road, and is bound by such c mtract of his vender, to the same extent that the vender was bound. </p> <p>A person Who purchases a tract of land with notice that his vender had entered into a covenant to another to Jet him have a road through it, will be deer: ed ’ in e quity to permit such road, and is hound by ouch contract of his vender to the same ®x'c.nt that the vender was bound.</p>

Case 24. exhibited his bill against the appellee, Churchill, and others, to recover, among other objects, a slave named Tom, held by Churchill under the sale of an officer for debt, by execution against Hugh Wallace Wormley. 'i he claim of Strode is based upon a deed of trust, or marriage settlement, executed by said Wormley to Strode, whose daughter, he married, anterior to the marriage.

<p>1. The General Court has not jurisdiction of a case in chancery where the complainant is a resident citizen of Kentucky, one of the defendants a non resident, citizen of another state, and the other defendatvt a resident citizen of Kentucky 2.</p> <p>2. In such case the question of jurisdiction is not waived by the resident defendant’s answering to the merits without excepting to the jurisdiction and the nonresident defendants permitting a decree to be rendered against him on the bill taken pro confess». Wont of jurisdiction may be assigned for error in the court of appeals. 2.</p> <p>3. Where the general court takes jurisdiction by consent of parties, all must consent; where it takes jurisdiction from the character of the parties, all the plaintiffs and defendants must be non-residents, or all the plaintiffs must be non-residents and all the defendants citizens, or vice versa. 2 <Sf 3.</p> <p>The general court has not ofTcáse in chancery where the STreSdent citizen ofKj, one of the non-resf8 * dent, citizen of another state, and fen. art a resident citizen of Ken-j“Cg{fch c the question of jurisdicPresident defendant’s answering to ^ntiou^except'ngto thejurisdic*io"’^¡dent ^Viidant’” permitting a decree to be gainst hlm^it the bill taken proeonfesso. Want ofjumay be as. signed for error in tile cvffs of RP' where th® general ?°ort.takes bjr consent of parties, all must conjuriS "diction from thy character ^es'aUttie pjfotiffs and defendants aifthTplairftais must he non residents and all the defends.'' ts citizens, x>r Vice versa.</p>

<p>1. A debt contracted by the payee of a note to the payor; after the assignment of a note for a valuable consideration by the payee, and notice of such assignment to the payor, furnishes no ground of equity, to enjoin the assigneefrom recovering the amount, notwithstanding the failure by the payee to pay such debt and his entire insolvency. 4.</p> <p>2. Money voluntarily paid by the payor of a note to an assignee, cannot be recovered back, on the ground, that as betxoeen the payor and assignor the consideration has failed. 5.</p> <p>3. In general, a court of chancery has not jurisdiction in case of .mutual independent contracts, although they are respectively the considerations, the one of the other, because relief may be had at law ; but where, by the insolvency of one of the parties, a suit at law would be unproductive, a court of equity acquires jurisdictionfrom lack of relief at laxo. 5.</p> <p>4. In such cases■ the same relief will be given against the assignee of the defaulting and insolvent party as would have been given against himself, if the note had not been assigned. 6.</p> <p>5. To contracts for the sale of real property, the jurisdiction of a court of equity attaches, so that either par* ty may resort to it to enforce either the specif c performance or the rccision of the contract. 6.</p> <p>A debt contracted by the payee sTnoteto^he payor, after ttenToFih» notefora ~ valuab.e con siderati-.i by and noitfce of áuch ¡.ssignment'o the payorturmsh in eqú-ty o enjoin the assignee eringTheV" stmouin, not. bvih'e^iTee to pay sue*6 de :t and hia entire vency'</p> <p>Money voluntariiy paid bythe payor of a t9 canno^bTre. coveredbac$c o« the the payor and the as> sisn<p’> the cor-sitiera tioñhas fad* ed.</p> <p>in general, a chrncerv has not juris ;iction in case mutual in-contracts ah though they-are respect, conJiderations, the one of the othei’» be-may bp had at laws but where, by cy^one af” the parties, a suit at law would be un. eourtofov quity aequires jvrisjj^of re-”* liefatlaw.</p> <p>In sucb CRSeg. the same reHaf will be fh^assfgnee ofthe defeiik ting and insqlventparty as would ^renagSnst himself’ifthe note had not been assign-</p> <p>To contracts Sy!e pertyl the jurisJiction qf a court of tacttes'at" so that either party may resort to it to theiThe^peeific performanee or the the^contract-</p> <p>A bill in chancery asserting a right under a</p>

<p>A SMALL CORRECTION OP THE EORMER OPINION.</p>

<p>1. A bill in chancery asserting a right under a bill of sale. executed by the defendant to C. and by C. as. signed to the complainant, cannot be supported by proof of such bill, executed by the defendant to IC by IC. as. signed to G. and by C. assigned to the complainant. 2.</p> <p>2. The Court of Appeals will never enquire into the regnlarity of taking depositions which were read in the court of original jurisdiction without objection. 8.</p> <p>bill, f sale e ieuied by tlld i,y c. as_ s'-gned <o the complainant ^"ort-ed bv proof of such bill, ex-dan,, K.by K. a si-ned t° c ?,ld N ^ piainant.</p> <p>The Court of Wl!1 q^elnto the regular!*, ty of t-king were read in the c urt of orig;na' ^u™[h ^¿'objection. J</p>

<p>1. The right of the citizens to bear arms in defence of themselves and the state, must be preserved entire. 2 <§* 3.</p> <p>2. JVbi merely all legislative acts, xvhich purport to take it axvay ; but all xvhich diminish or impair it, as it existed xvhen the constitution xvas formed, are void. 3.</p> <p>3. The act to prevent persons from wearing concealed arms, is unconstitutional and void. 4.</p> <p>2 Dig. 1010.</p> <p>Í Dig. 42.</p> <p>The right of the citizens ¡° ^efencT^of themseives° and.the state, must be pre®Nve en‘</p> <p>nig. 43;</p> <p>Not merely all legislative ac‘s> which take Raw>¡y• but all which diminish ' r when the constitution 'vas farmed, are 01 ’</p> <p>xhe act to pi event perns .from <[' arms" i u. ronsti toconal and void‘</p>

<p>1. Whatever may be the peculiar power of a court of chancery in Great Britain, over infants and their estates, in this country it is judicial only. 2.</p> <p>2. A court of chancery cannot here, on the application of the representatives of infants, give its advice that the frets which thetj wish to do, will or willjnpi be legal. Its province is, as in other cases, to decide on the le- • gality of them, after they are done. 2.</p> <p>5, Jin opinion given by a court of chancery, on such ap. plication for advice, is not a decree ; therefore, no ap. peat or writ of error will lie on it. 3.</p> <p>wj,ateT may be the peculiar . Pft" a g^cery in Great Brit-am. over in-Estates ;n (iiis c<m¿ try it is ¿judiéial only-</p> <p>A roUrt of chancery cannot here, Nation of the representalives of inf“nt®> gwe its tracts ^ which they w;sbto dpbele*1*! its province is,as mother legality of them after tfley are</p> <p>An opinion giren by a court of chancery on such application for adviGe, is not a decree• therefore, no appeal or writ of error will lie on it.</p>

<p>1. Contracts, separate and distinct in parties, time and terms, may be combined in the same bill, if all the contracts were made with the same 'individual, respect, ing the same land, and whatever of the land may be excluded from one of the contracts, will be included in the other. 3. '</p> <p>2. Where a person undertakes to investigate land claims, and the contract is silent respecting furnishing theco. pies of entries, surveys and patents necessary to the investigation, the person Undertaking the business must do it at Ms own expence. 4.</p> <p>3. Where a man who holds title bonds for the convey, anee of lands, sells Ms equitable interest in them by ar. tides of agreement, and delivers the title bonds which are received by the purchaser, withdut assignment, the purchaser cannot afterwards avoid the performance of Ms part of the contrad, on ihe ground that-the bonds were not assigned. 4.</p> <p> 4. J! court of equity has complete jurisdiction of a eon. tract for lands to enforce or measure its contents in fa. vor of either party who shall apply. 5. </p> <p> 9. Commissioners directed to be appointed to ascertain the quantity of land, and their mode of proceeding. 5. </p> <p>¡5, In a contract for the sale of 2000 acres of first rate land, to be chosen by the vendee out of various lands claimed by the vender, the vender is the agent who is to do the first act. via. To shew the lands; and on a bill filed to vacate the contract, on the ground that the vender had not land of that description, and therefore was unable to comply with his contract, the onus pro bandi Lies on the vender. 6.</p> <p>Contracts separate and distinct in partes, time and terms, may-bé -ótnibinediii ihe same bill if all the contracts were made with the same individual respecting the same land, and whatever of the land may be excluded from one of the ' contract” will be included in the other.</p> <p>uncler&1'" takes to investigaie andthe'eon tract is silent respecting furnishing entries^'surveys and patents necesinvesthra-6 tion, the son undertakmg the Inlex. pense,</p> <p>* holjs titie Ponds for the conveyance equita- * bk; interest in them by “tides ot a|nd delivers the title bonds which bv^h^ptav chaser with, out assign-men'¡,,1<he' cannoTafterwards avoid perfn-™“cü£<j¡¡ehis contract on >he ground j^dswere not assigned,</p> <p>A compLtejur.suiction of contract for land to enforce or measure its contents in favour of either party who shall ap¡piy.</p> <p>Commission ars directed to beappointed to as certain the-, qtian titv o1' land and tlxeir mode of proceeding.</p> <p>a contract tor the sale |°g^ra^es chosenbythe vendee out ed bv the vender, the the°1 first act viz. shi-w the filed to vacate the '•oatract on derhadnot” land of that description ^asr^a. able to comply with his drijefon the. vender,</p>

<p>1. Possession for more than twenty years, under an adverse title, bars relief in equity, except where the com. piainants.labored under some disability2.</p> <p>2. It is a settled rule, that in joint rights, the whole of those who had a right to suit must he shown to labor under some disability at the time their right accrued, otherwise, lapse of time will operate as a bar. 2.</p> <p>3. It seems that a patent issued in 1800, to devisees jointly, constitutes them joint tenants. 2.</p> <p>4. It seems that a devise made in 17 82* of lands to be equally divided among the devisees, made them tenants in common, and gave them several rights 2.</p> <p>,5. Where the record shows that the ancestor died 32 years before the commencement of the suit, the court will take notice judicially, that all his immediate descendants must have attained the age of 21 years, and that 10 years must have afterwards elapsed before the-commencement of the suit. 3.</p> <p>6. In such case, if the record exhibits no evidence as to the ages or time of marriage of the female complainants, the court will not presume that any of them married during infancy. 3.</p> <p>7. When a right of action has once accrued or come to a person laboring under a disability, and that disability is removed, or the person disabled dies, there is no provision in the statute protecting those to whom the estate may then descend on account of thpir disability, when the descent was cast. 4.</p> <p>8. One disability cannot be added to another. 4.</p> <p>9. A contract was made by a guardian respecting the lands of infants ; their right to declare it void after maturity, was reserved in the contract. After attain:* ing their age. they fled a bill renouncing the contract, and asserting their original rights; afterwards, by an amended bill, they prayed relief under the contract;</p> <p> Held, that their renunciation was a bar to all relief under it. 5. </p> <p>10. Where executors have no general authority to sell lands, but only for special purposes ; to render a sale made by them valid, it must appear to have been made . for those purposes. 6,</p> <p>11. Where the will vests the power to sell lands in two executors, a sale by one is void. 6.</p> <p>12. In such case, the assignment of an entry by one only of the executors, vests no right in the assignee. 6.</p> <p>Posseasion 20yearsun*n der an adverse title, ba-s relwt111 cept where the com-pl’ts labor ity. It is a settled rule, tnat in joint rights the whole thosewho had aright to showiTto labór under some dlsabiltime\heh.right, accrued, otherwise bipse^of erateTs a°*> bar. It seems ihat eiinTsooTo" devisees jointly, con-statutes them a devisé m¿de laniris t0 be equally divideda “g^^ade the., tenants in common, ¿"¿fseverid rijfg‘s_e</p> <p>W- ere the ^^th.-. an! cestor died 32 years be-0f he suit, the court will notice that°ah his immediate descendants ^ed'the^* age 0f2i years, and l^ust have*aver-wards elapsed before the suit In such case, ^¿e„*enas to the ages or tune ofmarcumpiainan¡s,the court will not J^rried durmg infancy,</p> <p>when a right onceaccrued orcometo a person labor-but^and tha* disabiUty is removed P?*?011 there is no63’ provision in the statute those to"'5 whom the esiate may then descend their^isabUity when the descent was cast</p> <p>One disabiliadded to ancf ther.</p> <p>A contract wasmade by 2 Dig, 860. a guardian respecting the lands of righuo de-*1" dare it voi.l after maturi *erv£K?in6"h contract — -aft ter attaining their age, bíl^renouncingihe con" tract and assernng their rights* after wards ’fay an amended bill, the contracts Held, that bar t0 re„ lief under it. Where exe- ®“ general* authority to sell lanas,but ^ ®P* torenfolra* sale made by them valid, it to'have^baen made for those purpo- ^ the will vests the power to sell lands in two saleTyone is y0id.3 in sueh case, ^S1a^nn^"t by one only of the executots, vests no e</p>

<p>1. Quashing a sheriff’s, return on execution, that he ha& sold the property on a credit and taken bond for the payment of the purchase money, does not. per se, set aside the sale, or quash the bond, especially where the court had refused to make any order, setting aside the sale,, but left it to the legal operation of the quashal of the sheriff’s return. 2.</p> <p>2. J1 sale of property under execution to the full amount, and a bond taken from the purchaser, which fact appears of record, is a bar to any execution on the original judgment, the bond remaining in force, notwithstanding the officer’s return is quashed. 2.</p> <p>Quashing a cutio°_ that" he has sold tlle property a"datakelf bond for the paymert of ^"peVsef set aside the sale, or quash pe®¡ay" ’ es" where the court had re-a° order setting aside the sale but left it to era<ionofthé quashal of the sheriff’s</p> <p>°f ider execution to the f'u'l amount a"kea fr° m the purchas, er,which fact a¿s¡s°a bar to’any execution on the original tbeSbinapremainingin force not, retuJ,nis quashed,</p>

<p>(£j»\case where a sheriff’s sale of land was set aside on violent presumptipn of fraud and collusion.</p> <p> 1. Jhi enormous inadequacy of price, is a circumstance from which unfairness may be inferred, and in con. nexion with other circumstances, may authorise the chancellor to vacate a sale. </p> <p>2. The fact of a sheriff’s having a number of fi. fa. against the estate of a debtor may be taken into consideration in deciding on the fairness of any contract between the debtor and sheriff.</p> <p>8. On such fad appearing, the court may presume that an authority given by the debtor to the sheriff to sell in the woods a valuable tract of land, without adverUsing the time and place of sale, was obtained in con. sequence of the influence which the sheriff had over the debtor.</p> <p>d. Mthough the sheriff should not violate the letter of such authority. yet the court may infer from the manner in which he executes it, and the result of the exe. cution of it, that it was originally obtained by him unfairly, and for fraudulent purposes.</p> <p>2 Dig. 113§,</p>

<p>1. The motion to quash a replevin bond, must he made within the time .prescribed by the act of l 802. notwith. standing the first execution which issued thereon was not taken out of the clerk” s office until after the first court from its date. 2.</p> <p>2. Where an execution is endorsed to the use of a third person, and the officer takes the bond payable to him instead of the plaintiff in the execution ; yet it is a replevin bond so far, that a motion to quash it. cannot be made af ter the time prescribed in the act of 1802. 3.</p> <p>2 Big. 1258;</p> <p>The motion to quash a replevin bond must be made within the bS\Prthe * act oi 1802, notwitiistanding the tion wTdch'issued thereon •vras nottath"cferk°s .office until after the first court from its a.e.</p> <p>Where an ,execution m the use of a third person, and the effiboncfpayable to him instead of the theexecu tiont^yctit ^s a replevin bond so far, to^imbhtt011 cannca be made after tlrescftbedin the art of n 1802.</p>

<p>1. Where a complainant claiming the specific execution of a contract, although he has not wholly performed his part, shows that he has performed so much, that he cannot be placed in statu quo, and is in rio default as to the residue, he is entitled to a specific execution. 2.</p> <p>2. But where he may be placed in statu quo, by receiving compensation for what he has done, and is in default for the residue, he is not entitled to a decree for íhe specific execution. 2»</p> <p>Where a complainant ckimmg”the specific execution of thougli lie1" lias not whoijy performed showstiiathe cannot be pV'ceU in statucpio, default”a”to the residue he is entitled exocution ° Butwhe/ehe maybe placedin stam cefiving compensation fi r what he has in default for the residue, he is not cree^iVs^e" eificexeou-6 tion.</p>

<p>Í. it seems that where property on which an execution is levied, is claimed by other persons, if the oific'er impannéls a jury and they disagree, that disagreements protects him to the same extent that their finding a verdict against the claimant would have done. 2.</p> <p>2. Neither at common law nor by force of any legislative provision, has an officer executing an attachment issued by a Justice of the Peace, a right to impannel a jury to enquire into the right of property attached, either on executing the order of sale, or at any other period, 3.</p> <p>3. The verdict of a jury, in such case, will afford no protection to the officer. 3.</p> <p>It seems that where property on which an ex ecution is levied,is claimed by other persons, it‘ the officer empanneis a jury and they disagree, that disagreement protécts him to the same extent that their finding a verdict a gainst the . claimant would have done.</p> <p>2 Dig, 104/</p> <p>Neither at common law, fef® ia^eypro. vision, has an officer exesuedbya justice of the p¡ea^tej0aem. p'Smei a jury to enquire into the right att^edei-’ atheronexecutingthe “^“á^^ther period”</p> <p>The verdict of a jury in no protection to the officer,</p>

<p>Qjp The responsibility of the assignor of a note discussed.</p> <p>1. Where the note does not become due time enough to have process executeft and obtain judgment at the first term, the obligor being a resident of the county, and his family and property then in it, but he_ absent on a trading expedition in another state, it is not in. cumbent on the assignee to take out a writ returnable to that term. 2. 3. ■</p> <p>2. It cannot be imputed as laches to. the assignee that he did not apply the extraordinary process of law to an,' ordinary case. 2. 3.</p> <p> If the la, fas or misconduct of the sheriff could exempt the. assignor from his responsibility in any case, it must be where it is of such a character as would sub. ject the sheriff to. the whole of the debt, and not merely to a partial recovery in damages. 4. </p> <p>The assignee is under no obligation to take out execuHon on affidavit, during the sifting of the court, to en. title him to resort to the assignor, nor can the assignor avoid his responsibility by shewing that other plain_ tiffs, who obtained judgments at the same term, by pursuing such measures collected them. 5.</p>

<p>L Although the act of assembly requ res that th“. suhscibing witnesses to a will shall suoscribe their names in the presence of the testator„ it does not require the fact of his presence to be proved, by them to the exclusion of other evidence.</p> <p>2. Where one of the subscribing witnesses proves his at. testation in thepresence of the testator, and the hand, writing of the other is satisfactorily proven, and he. deposes tfiat he remembers oj attesting two papers at the request of the testator, but knows not whether the wilt in question is either of them; that his invariable practice has been, never to subscribe his name as a witness to.any paper, which was not acknowledged by the maker of it, the will is sufficiently proved.</p>

<p>1. In an action of assumpsit by the assignee of a note against the assignor on the assignment, it is not necessary to aver the consideration on which the assignment was made; and if the declaration should aver a particular consideration, it is not necessary to prove if. 2.</p> <p>2. If an averment of a fact, not essential to the cause of action, be so blended in the declaration with the plaintiff’s right, that it cannot be struck out without getting rid of a part essential ta the cause of action, such averment must be proved. 2.</p> <p>8. But if it can be struck out without destroying the plaintiff’s right of action, it need not be proved. 2.</p> <p>4. The plea of non-assumpsit, in such action, by the assignee against the assignor of anote, does not put in issue the fact of the assignment, nor is it necessary for the plaintiff to prove it on the trial. 3.</p> <p>1 Dig. 99.</p> <p>i Dig. 257.</p>

<p>Case 40.</p> <p>together with the appellants, became jointly sureties for a certain Thomas Scott, in an obligation for the faithful performance of his (Scott’s) duties, as Sheriff of the county of Clarke.</p> <p>Suit was brought on this bond by a certain Robert Wade against the appellee Bruner, and judgment recovered for g291 86 cents, and costs. An appeal was taken by Bruner from the judgment, but the judgment was affirmed by this court, with damages and costs. Bruner then paid the amount of the judgment, damages and coses, in both courts, to Wade, making in the whole $$358 87 cents, and made this motion in the circuitcourtofCiarkeagainst the appellants, bis co. securities for Scott, to recover their respective proportions, of the amount paid by him to Wade.</p> <p>The copy of a notice was served on each of the ap-. pellants, informing them that he (Bruner) would move-for a judgment against them, and each of them, for their respective proportions of the judgment, &c. which h ad been recovered against him as one of the sureties of Scott, by W ade, and which had been paid by him to Wade, &c.</p> <p>On the hearing of the motion the circuit court pronounced judgment in favour of Bruner for S308 22 cents, and ordered that each of the appellants should pay thirty-seven dollars and sixty-five cents thereof, and that Bruner should recover against the appellants his costs expended in the motion, &o.</p>

<p>1. A writ of error, including the names of too many defendants, may be amended by striking out the names Of those improperly included. 1.</p> <p>2. Tames cannot be inserted by way of amendment which were at first improperly omitted, l..</p> <p>3. A plaintiff cannot assign for error what the inferiot court did on his mo'ion and, at his request 2.</p> <p>'4. The jurisdiction of the court of appeals, is appellate, only. 3.</p> <p>a writ of efrror, includtne ^abyrefendants, may be a.m.f1n.c1ed by tíename^of those impropetty includ-</p> <p>ah na be inserted by way of amendment, property or mitted . '</p> <p>Plaintlfí sign for error. what the inferior an-Uthisre* quest,</p> <p>ThejuriadlctioaofOie peal's, is sppilate onlys</p>

<p>1. T/íc act of 18 i 6, limiting the prosecution of writs of error to three years, contains no proviso which will authorise the prosecution of a writ of error to a joint decree, after that time, on the ground that one of the plaintiffs in such writ of error. was a feme covert at the 'time the decree, was rendered 2.</p> <p>2. The proviso in the act of 1816, is materially diff erent from the proviso of the act of 1796, on the same sub_ ject. S.</p> <p>The act of 3816, limiting the prosecution of writs of error to three years, contains no proviso which will authorize the prosecution of writ of error to a joint decree, to be prosecuted after that time, on the ground, that one of the plaintiffs in such writ of error, was a feme covert at the ti ne the decree was rendered.</p> <p>1 Dig 390.</p> <p>1 Dig, 8Sp.</p> <p>The proviso in the ac of 1816. is ma tenally different from the proviso of the act of 1796, cn the same subject</p>

<p>A man may maintain an action of slander, for words charging him with being guilty of fornication.</p>

<p>1. Under the act. of 1796, limiting the prosecution of writs of error, where a part only of the plaintiffs in error are within the saving of the statute, the right of the whole is saved 2.</p> <p>2. Where an erroneous decree for land has been render. ed. against a man who was dead at the time of its rendition, without the suit’s having been revived, his heirs may, in their own name, prosecute a writ of error. 3.</p> <p>3. In such case, the error of pronouncing a decree against a dead man, cannot he assigned in the court of appeals ; but if the decree is otherwise erroneous, it is not incumbent on the heirs to institute any proceedings in the inferior court, to have it set aside, before they bring a w. it of error in the court of appeals. 3.</p> <p>Under the act of 1796, pmsécuthm of writs of error, where of the1 lain’*' iiíís hfenw are within the saving of the ^fght^of the whole is saved.</p> <p>Where an erroneous decree for land has been rendered against a man who was dead at the time of its rendition, without the suit’s having been revived, his heirs may, in their own name, prosecute a Writ of error.</p> <p>In such case. er,'or. a'decree^ gainst a dead man, cannot ¡^^“fourt 0f appeals; but if the decr^ “ neouSj itis not incumbent on the proceedings in the infehaVgCj°la¿t’to aside ijefore they bring a ,writ of error</p>

<p>1. A personal action cannot be maintained in a county -where none of the defendants can be found, by sending, the subsequent process into another county, and having it executed there on all of them. 2.</p> <p>2. 'Where, after the commencement of the suit, the defendants remove into another county, and that fact appears by the sheriff's return. the plaintiff may, under the act of 1811, send the subsequent process to the county to -which they shall have removed. 2.</p> <p>A personal action can'lot be 'Maintained in a on. ty wi'ieie' roru bi'the defenda' ts car bf found by sending tile- fobs. - quent process» into another county, and hr.vii-c i< ox ecuted these on all of them.</p> <p>Where, after the commenceiwnt of the suit, the defendants remove into another cou Uy, and that fact appears by the sheriff’s return -he plaintiff may, Miuler the act oi 181 i- send the subsequent process to the county to which they shall have removed.</p>

<p> Í. Swearing the jury to enquire of damages, when the general issue was pleaded, is erroneous. </p> <p>3. Although a plea of the generalnssue, in fact may he • styled, in the record of the cause, a general demurrer; yet, if the plea is in .the record, the court of appeals will recognize it for what it is.</p> <p>3. An infant, having sold personal property, may, on attaining his oi her age, disaffirm the sales get possession of the property and sell it again.</p>

<p>1. Jin ancient boundary cannot generally be proved otherwise than by reputation ; consequently, evidence going to show that certain lines were generally reputed to be the lines of a particular ancient survey, is admissible. 2.</p> <p>2. Jl defendant in ejectment, by showing a right of entry in a third person, will defeat the plaintiff. 3.</p> <p>3. The 'act to compel the speedy adjustment of land claims, applies only to those cases in which the possession has been acquired and continued by actual settlement upon the land, and not to those in which possession has been obtained by entry on the land and enclosing it with ú fence or otherwise. 4.</p> <p>An ancient boundary cannot gene, rally be proved oth«’wise than tion%onsequeñtly, evidence going to show_that were generally reputed to be the ticularan-'11"" clent survey, is admissible,</p> <p>A defendant in ejectment right ofen? a in a third person, will ^í^t'ff16</p> <p>to compel the speedy ad justment of ^"lie^onl’ to those cases in which the possession has been acquired and continued by actual settlement upon the land, and hot to those in which possession lias been obtained by entry-on the land, and enclosing it with a fence or otH, erwise.</p> <p>*3 Dig 865.</p>

<p> Jin entry for land held invalid. </p>

<p>2. Errors in fact and errors in law cannot be assigned in the same writ of error coram vobis. 2.</p> <p>2. Whether a court ought to permit an amendment of an assignment of errors, in any case, is doubtful. 2.</p> <p>3. But if they ought, it is not error to refuse to permit such amendment, after demurrer joined and a decision of the court thereon against the plaintiff in error. 2;</p> <p>4. Jl replevin bond takes effect by1delivery ; consequently, an assignment of error, that it was blank when it was signed and sealed, must bp utterly unavailing. 3.</p> <p>Errors in fact and er-cannot bTas s;gne(j ¡n t[l(T same writ of er™r> cora® vobis,</p> <p>whether a court ought to permit an ^^assT n mentofei?”" rors in any ®as^ if they ought, itis not error to mendment" after demur-0f ül®CISr court thereonagainsi. ei?¡,aj!ltlff</p> <p>A replevin f1Vevy, consel quentiy an assignment of error, that it was blank when it was signed and sealed, must be utterly «unavailing.</p>

<p> It is no objection to the validity of a replevin bond in the first person plural and signed by both principal and security, that the name of the security does not appear in the body of the bond. </p>

<p> Where the commissioners under the occupying claimant law, report rents for a longer time than the ease will warrant, the court may properly correct the excess, and confirm the report for the balance. A re commit, ment, if there is no other error, is unnecessary. </p>

<p>A justice of the peace has not jurisdiction of a motion against a constable, for failing to return an execution for the sum of $ 30.</p> <p>The point decided in the case of Lane vs. Young, was, that a justice of the peace had not jurisdiction of a motion against a constable, for failing to return an execution for about 840, the act of 1815, which gave the jurisdiction, having been temporary, and ceased to operate before the cause of action in that case accrued ; and that it was not a case within the general jurisdiction of justices of the peace, as established by permanent law. In this case [Abbey vs. Thomas] the amount of the execution was 8 30 50.— Reporter.</p>

<p>1. An obligation to collect money and pay it over to the obligee, is not assignable. 2.</p> <p>2. An obligation stipulating to pay money and to do other acts, which are neither the payment of money op property, is not assignable. 2. .</p> <p>An obligato co1pay \t^over to the obhg1?6, is not assi£naWe‘</p> <p>An ,,. tionstifulating to pay ancl adts°which are neither payment °^™°en®y °.r not assignaMe.</p>

<p>1. Where the agents of a mercantile company reside abroad and procure services to be rendered here for such company, on their own credit, they must pay for them out of their own estate. 2.</p> <p>2. Where a verbal contract is entered into in lieu of an agreement in writing, on the same subject, it is not necessary in declaring on the last contract, to recite the first. S.</p> <p>Where a verM contract is entered in-an agreement in writing on t]ie ft iTnotoe** cessary in dédaring on to t*1í cite the first.</p> <p>Where the agents of a Company re aide abroad,& procure sertendered**6 here for such company on their own them out of their ownesstate.</p>

<p> 1.J1 motion forfaiting to pay over the amount of a list of militia fines, lies against the deputy shenff, into whose hands it was put. </p> <p> 2.On such motion, the dejendant will net be permitted to shew from the judge advocate’s books, that the list was incorrect. </p> <p> 3.The plaintiff making such motion, must prove in court that he is paymaster ; for to, the paymaster, and no one else, is the motion given. </p>

<p>1. A judgment creditor, receiving a horse from his defy- or on an agreement to sell him and credit the judgment with the price of the horse, becomes bound so te do as. soon as he has sold the horse, s.</p> <p>S, After having once sold him, he cannot rescind the contract with the purchaser, take back the horse and. issue execution on the judgment. 3.</p> <p>3. Unless it was part of the agreement thatjhe creditor-might sell on a credit, he will do it at his own risque, and if he should sell to an insolvent and never receive pay, the debtor will nevertheless, be entitled to credit for the price. 4.</p> <p>A judgment creditor receivinga hUcfebto™ on an agreement to sell with theJ P!'ice, bego^do as”3 soon as jie has sold the llorse-</p> <p>After having once sold t'he contrae* with the pur. £orBe an(3 j s«,e execution on the judgment.</p> <p>Unless it was part of the agreement that the creditor might sell on a credit, he will do it at hi» own risk, and if he should sell to an insolvent .and never receive pay, the debtor will, nevertheless, be • entitled to credit for the price.</p>

<p>1. JVb. action can be maintained by the first endorser Cwho was the payee J of an accommodation note discounted by the Bank of Kentucky, against the second endorser, on the ground of the payor’s having become insolvent, and the first endorser’s having paid the whole to the bank. 3.</p> <p>2. In such case, the first endorser shall be considered as saying to the subsequent endorsers, Iipill stand behind you for the whole. 3.</p> <p>3. Persons endorsing mercantile instruments, may be presumed to understand the law merchant, and to intend to be bound by its rules. 3.</p> <p>4. The undertaking of the endorsers of bills of exchange is not joint, but several; in which case contribution is seldom permitted. 3.</p> <p>No action can be main taiued. by the first endorser (who was the payee) of an accommodation ndte discounted by the Bank of Kentucky against the second endor ser, on the ground of the payor’s having be come insol vent,and first endorsers have paid the whole to the Bank.</p> <p>In such case, the first en dor'ser shall be considered as saying to the subsequent endorsers, I will stand behind you for the whole.</p> <p>Persons endorsing mercantile instruments, may be presumed to understand the law mer chant, and to intend to' be bound by jits rules.</p> <p>The undertaking of tha endorsers of bills of ex change, is not joint but Several, in whicn case, contribution is seldom permitted;</p>

<p>1. Where a purchaser at a sheriff’s sale of land, seller Ms bargain without recourse, the purchase money shall not be withheld, on the ground that he represented his title much better than it was, if such representations were made without fraud, and under an honest con. ' -vidian of their truth. 3.</p> <p>2. In this case, it appears that the seller represented the legal title to be in the defendants in the execution, When in fact it was not, and never had been; but it appears that he firmly believed that it was. 3.</p> <p>Where a purchaser at a sheriff’s sate of land, sells his bargain ’ without recourse, the purchase money shall not be withheld on the ground, that he represented his title much better than it was, if such representations were made with». out fraud and under an ’ lionest conviction of their truth-</p> <p>In this case it appears, that the sel ler represented the leg' I title to be in '.he defendants in the exec" tion, Whan, in fact, it was not and never had been; but it appears, that he firmly be • lieved it was.</p>

<p>1. In an action of assumpsit by the endorsee against the endorser of a bill, the genuineness of the endorsement cannot he put in issue, except by plea verified by affidavit. 2.</p> <p>2. When a bill of exceptions to a decision qf the inferior court, refusing to give to the jury the instructions ask. ed, does not slate that the evidence detailed in the bill of exceptions was all the evidence given, the court of appeals will presume that other evidence, and sufficient to justify the decision of the inferior court, was given. 3.</p> <p>In an action of assumpsit by the endorsee against the endorser of a bill, the genuineness of the endorsement cannot be putin issue, except by Plea v|'u%,cl bya . avi</p> <p>When a bill of exceptions to a decision not sYáteThat the c-vklence ür^biifof exceptions, was ail tiie* evidence court’ofappeals will presume that ^ of the inferior court, refusing to give to the jury the in structions asked, does other evidence and sufficient to justify the decision of the inferior court, was given.</p>

<p>1. Where the endorsee of a bill of exchange, m an action against the endorser, relies on want of funds of the drawer in the hands of the drawee, instead of due no. tice, it is incumbeht on him to aver that fact in his de. duration.. 2.</p> <p>2. Jin example of such averment held sufficient. 2.</p> <p>Where the, endorsee of a bill of exchange, in an action against the endorser, relies on want of funds of the drawer, in the hands of the drawee,. instead of due no-| tire, it is incumbent on him to aver tlia1 factirr his declara1 tion.</p> <p>An example of such aver, ment, held sufficient.</p>

<p>1. Jin appeal bond, conditionedfor “ prosecuting the appeal ivith effect, or on failure to do so, to pay the amount of the judgment and all damages and costs,” is not against law, and is therefore obligatory on both principals and securities. 2.</p> <p>2. Jllthongh the act constituting the court of appeals does not suffidently define the condition of an appeal bond, yet reason and a practice of thirty years, sanctioned several times indirectly by the legislature, require that all appeal bonds should contain substantially such conditions as above. 2.</p> <p>An appeal bond conditioned for “ prosecuting the appeal with effect, or on failure to do so, to pay the amount of a judgment and all damages and costs,” is not against law, and is, therefore, obligatory on both principals and securities.</p> <p>Although the act constituting the court of appeals, does not sufficiently define the condi tionof' an’ appeal bond; yet reason and a practice of thirty years; sane- - tioned several times indirectly by the legislature, require that all appeal bonds sfiouldcontain substantia!!^, such conditions as above.</p>

<p>The provision of our act of 1809-10. dispensing with proof of. actualforce in certain cases of forcible entry and detainer, is not. retrospective, but prospective on'. ly- 2. '</p> <p>The provision of our act of 1809-10, dispensing with proof of actual force in certain cases of forcible entry andt detainer, is not retrospective, but prospective only.</p> <p>1 Dig. 612.</p>

<p>1. Where a copy of a record from another state is offerr ed in evidence, and specific objections to reading it, hot involving any exception to the sufficiency of its, authentication, are taken in the inferior court, and the court decide on those objections, the court of appeals will not examine into the legality, of the .authentication, but will presume that all objections to that were waived. 2. , ,</p> <p>O. Suit may be maintained in .this state pit a grant of administration in any of the United States. 3.</p> <p>3. In such case, it is not necessary that letters of administration should be made out inform ; a grant of administration similar to that which is Usual in this country, is sufficient. 4.</p> <p>Where a copy of a record from another slate, is offered in evidence, and specific objections to' reading it, not involving any exception to the sufficiency of its authentication are ta ten in .the inferior court, and the court decide on those objections, the courtof appeals will not examine into the le gality of the authentication, but will presume that all objections to that were waived.</p> <p>Suit may be maintained in this state on a grant of administration in any of the United States.</p> <p>In such case, it is not necessary, that letters of administration should be ■made out in form—a grant of administration similar to that which is .usual in this country, is f sufficient,</p>

<p>Objections involving mere matters of fact, taken to an award, will be presumed to have been correctly over_ ruled by the inferior court, on sufficient evidence, un. less the contrary appears by bill of exceptions.</p>

<p>JVane of our occuptihis claimant laxos authorise a tenant of the defendants to claim any thing against the proprietor of the better tille,for any improvements made, on the land.</p> <p>None of our occup'ñng plaimrnt laws authorise a tenant of the defendant, to claim any thing against the proprietor of the better title, for any improvements made on the land.</p>

<p>Where apromisson/ note is in the usual form, but by an agreement between the parties, half the money is for the benefit of a third person, suit not only may, but must be brought in the name of the payee, or his as. $ignee,for the whole. The payee has the legal right to the money; that right passes by assignment; the right of such third person, is a mere equity.</p> <p>Where a promissory note is in the usual form; hut by an agreement between the parties, half the money is lor the benefit of a third person, suit not only may, but must 'be brought in the name of the payee or his assignee, for the whole The payee has the legal right to the money; that right pastes ^ent^the right of such thirdpérson, is a niereeqúity.</p>

<p>THE CONSTRUCTION OR A COVENANT.</p> <p>occupant of the land,, it cannot, with propriety, be said, that any thing was recovered from him for rents. 2. 1. Where, under the occupying claimant law, the sum allowed for improvements exceeds the sum charged for rents, so that the judgment or decree is in favor of the</p> <p>2. And in such case, nothing can be recovered by him from a man who had covenanted to pay all the rents which should be recovered of him in that suit. 2.</p> <p>Where, untier the occupying claim, ant law, Ihe sum allowed For improvements exceeds the sum charged for rents, so that Ihe Judgment or decree is in favor of the occupant of the lan it cannot, with propriety be said, that any tiling was recovered from him for rents.</p> <p>Ai d in such case nothing can be ¡ecovered by him fn m a man who had covenanted to pay all the rents which should be recovered of him in that suit.</p>

<p>t. Where, a matter alleged as a ground of equity, was properly triable at law, and sufficient reason is not shown why it was not so tried, chancery has no jurisdiction. 2.</p> <p>2. In such case, if there is no allegation that it was not tried at law, it will be presumed to have been tried. 2.</p> <p>Where a matter alleg, ed asa ground of equity was properly triable at law, and sufficient reason is not shown, why it was not so tried, chancery has no jurisdiction.</p> <p>In such case, if there is no allegation that -it was not tried at law, it will be presumed tq have been tried.</p>

<p>1. Where the endorser of a bill of exchange takes up the bills after they are protested for non. payment, by giving Ids bond for the amount, and impeaches the consideration of the band, on the ground that he had not legal notice of the dishonor of the bill, he takes the onus probandi on himselfi 2.</p> <p>2. Bills of exchange drawn in Kentucky, on any ■person in another state of the Union, and payable in that state, may legally be protested, on the last day of grace. S.</p> <p>3. The provisions of our act of assembly on this subjects are materially different from those of the act oj par.. liament. respecting inland bills of exchange. 3.</p> <p>Where the endorser of a biI1 of exchange takes up the bills after they are protested for bond for the amount, and impeaches the consideration ofthe bond, on the ground, that he had not legal notice of the dis honor of the bill he takes the onus probandi on himself</p> <p>Bills of exchange drawn in Kentucky oa any person in another state of tile Union, and payable in that state, maybe legally protested on the last day of grace.</p> <p>The provis. ions of ou.r act of assembly on this subjeat, are materially different from those of the act of parliament, respecting inland bills of exchange.</p>

<p>1. A man who, with full knowledge of a title to land, purchases it from one who he knows has no title to it, and takes possession of and improves it under that purchase. cannot obtain pay for his improvements, under the occupying claimant laid of 1820.</p> <p>2. That act protects none but innocent and bona fide occupants.</p> <p>1 Dig. 963, &c.</p>

<p>1. ■ The defendant^ in a suit on a prison bounds bond, are estopped Jrom, pleading that the person tó whom, it was given as jailer, was not, in law and fact, jailer at the lime. 2.</p> <p>2. The records of the county court, laying out and establishing the prison rules, are, as to their sufficiency and construction, to be decided on by the court where an issue is made up on the plea that no prison rules existed. 3.</p> <p>3. If a debtor, committed to the prison rules, depart thence. however innocently, from ignorance of the real. boundaries, howeter short the distance and sudden his return, his bond is forfeited. 4.</p> <p>4. In a suit against a plurality of defendants, some of whom are returned not found, pleas purporting to be filed by the defendants generally, wilt not effect an appearance for those returned not found, but will apply only to those pn whom the process was returned executed. 5.</p> <p>The defend, ants in a suit on a prison bonds bond, are estopped from pieadthat the given as jalier, was not in law and fact, jailer at the time.</p> <p>The records of the county éourt, laying out an(i establishing the prison rules, are, as to their suffi ciency and construction, to be decided on by the court, where an ;ssue is male up on the plea, that no prison rules existed.</p> <p>Jf a debtor committed to the prison rules depart thence, however .innocently, from ignorance of the real boundaries; however short the distance and sudden his return, his bond is for» iciticdo</p> <p>In a suit gainst ¡i plurality of defendants. some of whom are re turned not found, pleas purporting to bf filed by the defi-nd.airtss generally will not effect an ap. pearance for those v- turned, not form!; but will apply only to those on whom the process was relurned executed.</p>

<p> 1.Serving the defendant in a petition and summons with a copy of the petition, materially variant Jrom the original, cannot be taken advantage of by plea in abatement, but only by motion. </p> <p> 2.If the copy so served'is materially variant, the defendant will be entitled to a continuance, but to nothing more. </p> <p>S. If a suit is rightly commenced, no irregularity afterwards, is properly the sutyect of a plea in abatement.</p> <p>4. If a plea in abatement allege matter which, from its nature, cmmot.be pleaded in abatement, the plaintiff is not bound to reply or demur to it; but may treat it as a nullity, and lake judgment by default.</p> <p>3.Where a defendant appears, pleads an affirmative plea in bar, arid afterwards makes default at the trial, judgment by default may be entered against him.</p>

<p> Where the plaintiff in an execution prevents other pen. sons from bidding for the land levied on, by promising, if thiy will not, to purchase it himself, and sell to them at a low pnce, such parts as they may ivan% and in consequence of such negotiation, purchases for less than its valúe, the sale should be set aside, on motion, </p>

<p>1. Independent of the operation of the act of 1821-2, a bill in chancery cannot be maintained by a judgment creditor against the debtor of his debtor on the return of a fi. fa. nulla bona, and admission or proof that the defendant had no property out of which the judgment could be collected. 4.</p> <p>2. But whether, after a defendant had taken the benefit of the insolvent debtors’ act, a bill in chancery could be maintained by the creditor, to recover his debt out of the dioses in action of his debtor, is not decided, nor intended to be decided. 4.</p> <p>3. Independent of these statutory regulations, choses in action cannot be subjected to execution by any process of law or equity. 4.</p> <p>independent of the operation of the act of 1821-2 a bill in chancery cannot be maintain cd by a judgment credit or against ¡the debtor of his debtor, on the return 'of - fi. fa. nulla bona, and admission or proof that the de fendant had no properly put of which the judgment could be ojllected.</p> <p>But whether, after a defendant bad ta ben the benefit of the insolvent debtor's act, a bill in chancer} could pot he maintained by the creel.tor to recover his debts from the debtors oí l¡is debtor, is not decidednor intended to be decided. . Independent of these statutory regulations, cho'ses in action cannot be subjected to .execution by any process of law or equity.</p>

<p>i. Where a deed has been made, since the act of ¡798 concerning champerty and maintenance, took effect, a grantee may maintain a writ of right wherever his grantor could, if he had kept the estate. 2.</p> <p>2. But where a deed was made before that act was in force, a person being in the possession of tJie land con. veyed, against whom the grantor might have maintained a writ of right, his grantee cannot. S.</p> <p>S. Where a town was established before said act took effect, the trustees were not, by its establishment, invested with a legal title to lands held adversely, but included in the town. 4.</p> <p>4.. And an actual entry by the trustees on the lots not held in adverse possession, will not be construed as extending to such as were. 4.</p> <p>5. An actual entry by the trustees, after an adversary possession of 20 years, gives them ns seiain. 4.</p> <p>g. Where the vendor acquires no seizin by his actual csL try to sell, the vendee acquires nó seizin by his actual gniry fo purchase, or by his purchase. 4.',</p> <p>been made since the act. ot‘ N98 con' cSmnfrty awdmainte-' nance, took efíect* a maimainT^ writ of right wherever liad kept the estate</p> <p>< a n,ade before that act was m íorcis> a inSe^ot^ session of the land convty^'08®a^3t graHtor mihht have maimained a bugiantee cannot</p> <p>Where a town was establisbed be- ^ ®!^ec3Cii the trustees were not. by its establishment invested with a legal title to lands held adversely, but included in the town.</p> <p>Andan actual entry by the trustees, <on the lots not held in adverse possession, will not be con strued as extending to such as were.</p> <p>An actual entry by the trustees, after an adversary possession of 20 years, gives them no seizin.</p> <p>■Where the vendor acquires no > seizin by his actual entry to sell, the vendee ac-' quires no seizin by,Ins actual entry to purchase or by his purchase.</p>

<p>J, Where defects in property sold are even visible, and easy to be discovered, if the seller disguises or misre. presents them, or by false statements deludes the purchaser into a contract, he is answerable for the fraud.</p> <p>2. The Phthisic, TAsthma,] in a human being, is not a disease of that palpable character that a person is bound to notice it; certainly he is not bound to know the stage to which the disease has progressed.</p> <p>-§. Where the soundness of a slave is warranted in the bill of sale, with the exception of a particular disease by name, if the violence or malignity of that disease was so misrepresented as to induce the purchaser to buy, when, if he had known the truth he would not, this fraud will avoid the contract, the exception notwithstan. ding.</p> <p>4. Where it appears that the property purchased was not present at the time of the purchase ; that the purchaser had not, and could not see it; and that it must have been understood by the seller that the purchaser relied entirely on his representation, the rule that the purchaser is bound to notice palpable defects, does not. apply-</p>

<p>1. That there is a witness in court, who will prove the same facts which the party applying for a continuance swears he can prove by witnesses who are absent, is nota sufficient ground for overruling a motion for a continuance. 2.</p> <p>2. If, in such case, the witness in court is not credible, or is a witness of his adversary, he ought to swear that he is advised and verily believes he cannot safely go ta trial without the absent witness to the same fact; andif he does not, he shores no good ground for a continu. anee. 2.</p> <p>3. Jls an affidavit for. a continuance is the testimony of the party interested, it ought to be construed with, strictness. 2.</p> <p>4. Stating, that he expects to prove a material fact by an absent witness, is not sufficient; he ought to state that he firmly believes he can. 2.</p> <p>5. Circumstances under which circuit courts ought not rigidly to adhere to their rules of practice. 3.</p> <p>6. It is a general rule, that Case, and not Trespass vi , et armis, is the appropriate remedy for the abuse of legal process in civil actions ; and an attachment issued by a justice of the peace, is a civil, action within this rule. 4.</p> <p>7. That the attachment was so erroneous that the court of appeals would have reversed the judgment on it, will not authorise bringing trespass, unless it was void. 4.</p> <p>8. Justices of the peace have original and exclusive jurisdiction in all attachments not exceeding fifty dollars, founded on any specialty, bill or note in writing or account. 4.</p> <p>That there is a witness in court who will prove the same facts which the party ap plying for continuance swears he can prove by witnesses Who are absent, is nt>t a sufficient ground for overruling a motion for a continuance, ifin such case, the witness in court is not credible, or is a witness of bis adversary, he might to swear that he cannot safely go to trial without the absent witness to the same fact, an'd if be does not, he shews no good ground for a continuance. As an affidavit for a continuance is the testimony of the party interested, it ought to be construed with strictness. Stating that he expects to provea ma. erial fact by-,-i .'boent W’ • s. is >.ot suffi. ■ vi ,-t He ought o s< ate that lie firm y believes he can:</p> <p>Circumstances under which circuit coarts ought not rigidly to adhere to their rules of practice.</p> <p>it is a general rule, that Case, and not Trespass vi et ormis, is the appropriate remedy for the abuse of legal process in civil actions; and an attachment issued by a justice of the peace, is a civil action within this rule.</p> <p>tachment & * was so erro, neous that appeals^ °* would have reversed the j“df“leaot°a authorise bringing trespass, un« waa</p> <p>justjces the.peace have original and exclusive jurisdiction in all attachm-nts nol. exceeding fifty dollars, founded on any specialty, bill oe note io writing or account.</p>

<p>J. It is only for the special purpose of admitting a deed to record in the minty where the land lies, that the certificate of the clerk of any other county that the deed was acknowledged before him. is made evidence.</p> <p>2. If a deed so certified is not recorded in the proper office. within the. time prescribed by law, it cannot be given in evidence without proof of its execution</p>

<p> An entry for land, held invalid. </p>

<p>^ a joint action of trespass against several defendants, the plaintiff may dismiss his suit as to some, and proceed against the others. 2. •</p> <p>2. Bu* if the process is not returned executed, on those as to whom he dismisses it, he cannot proceed to trial at the appearance term, against the others, although on them the writ may have been executed ten days before the commencement of the term. 3.</p> <p>3. What after acts of a person who was not present at the tortious caption of personal property, and does not appear to have had any participation, in deed or design, in the original taking, will make him a principal in the trespass. 4.</p> <p>inaj0mtae. tion of tresPass against fends>ms.*the plaintiff may dismiss his a“^gSa*¿ p°™Ceed against the others,</p> <p>®ut returned executed on those as tó whom he dis misses it, he cannot proceed to trial at the appearance term against the others, although on them the writ may have been executed ten days before the commencement of the term.</p> <p>What after acts of a person who was not present at the tortious caption of personal property and does no appear to have had any participation in deed or design in the original ta« king, Will make him a principal in the trespass,</p>

<p>1. Under a power of attorney authorising the sale of any of the principal’s lands, if necess'an. no necessity is to be presumed from the fuel of the attorney’s having sold and conveyed a particular tract. 2.</p> <p>2. Nor will the deposition of the attorney., stating that he found himself under the necessity of selling lands under the power of attorney, render the deed valid. He ought to state the facts whica produced the necessity, or at least that the tract conveyed was one which he found himself under the necessity of selling, 2.</p> <p>3. Such a deed unaccompanied by proof of the necessity of selling- is insufficient as evidence of derivation of title to the complainant, from the patentee, in a suit against another patentee. 3.</p> <p>Under power of attorney authorising the sale of any of the principal's lands, if necessary, no necessity is to be presumed from the fact of the attorneys having sold and conveyed a particular tract.</p> <p>Nor will the deposition of the attorney stating that he found himself under the necessity of gelling lands under the power of attorney, ren derthe deed valid. He ought to state the facis which produced the necessity, or at least that the tract coi.veyed was one which he f..und himself under the necessity of selling.</p> <p>Such a deed, unaccompanied by proof of the necessity of selling, is insufficient as evidence ofde. rivation of title to the complainant, from the patentee, in a suit against another pa, tentee-</p>

<p>If, and note for the direct payment of money, the jury assess damages for the detention, the plaintiff may take judgment for the debt and damages so assessed, or for the debt and interest, but not for both. 2.</p> <p>If', on a note for the direct payment of money, the jury assess datmg-.-s for v • ett-ntion ' ie plaint, ff may-take judgmi-i/ tor the debt and Carnages so ais<-8 ed, or for the debt and interest, but- not for both.</p>

<p>1. The assignee of a contract, demanding in chancery the specific execution of it. will stand in no better situation than his assignor would. 3.</p> <p>2. If, before the assignment, the assignor had, by an'obstinate refusal to comply with his part, forfeited his right to demand a specific execution, that forfeiture will bar the assignee, notwithstanding he may, with promptitude and good faith, offer to do, nunc pro tunc, what his assignor ought to have done. 3.</p> <p>3. A specific execution denied, on the account of the default of the parties from whom the complainant derived his right. 3.</p> <p>The assignee of a contract, demanding in chancery the specific execution of it, will stand in no better situation than his assignor would</p> <p>If befor the assignment, the assignor had by an ilisal'tocompiy with his pait, f rtm to'demancí'a specificexe.cution, that forfeiture will bar the assignee, notwithstanding hi. ,oay with promptitude a--d good faith, off.-r to do, nunc pro tunc, «'hat his ass'gnor ought to have done.</p> <p>■V specific execution, denied «n the a.'c; unt of the default of toe parties from whom the complainant derived his right.</p>

<p> Where the defendant in execution voluntarily givey up real estate, to which he .has nq legal title, to be sold ■by the sheriff, and after the sale, puts the purchaser in. possession, and there is no complaint of inadequacy of price or any unfair proceeding, he cannot, by bill in equity, set the sale aside and recover the property. </p>

<p>1. Jt non-resident citizen of Kentucky has the sanie right to sue in the general court, which a non resident citi. zen of any other state has.</p> <p>2. But where the plaintiff sues as a non resident, the defendant must be a citizen-of Kentucky, and not a resident merely.</p> <p>3. Courts may know, judiciallyj that the Lexington Manufacturing Company must exist in this state; but cannot know, judicially, that its members are all citizens.</p> <p> 4. Whenever justice requires it, courts will look into the characters of the individuals who compose a corpora, tion. </p> <p> 5. If the individual members can sue in any particular court, in right of citizenship, the corporation may. </p> <p>6. It is not, necessary that the jurisdiction of the general court should appear in the writ; • but it must appear in some part of the record.</p> <p>7. Leave given to amend, so as to show jurisdiction, when it did not appear in any part of the record.</p>

<p>1. .Where the record shows that application has been made within the time allowed by law, to have a decree against absent defendants set aside, and does not show that it has been disposed of by the inferior court, the court of appeals will consider it still pending there ; and consequently, no writ of error will lie. 2.</p> <p>2. S decree directing land, to be conveyed and appointing a, commissioner to convey it, is final. 3.</p> <p>3. If after final decree in the inferior .court in favor of the complainanfi the court permits the decree to be set aside at a subsequent term, and an answer fled, and upon that answer vltvmntciy dismiss the complainant’s bill, the coiirt of appeals will reverse all such subsequent proceedings, without any inquiry into the merits of the cause,, as made out by bill, answer, Spe. 3..</p> <p>Where the record shows that application has been made within the time allowed bv law to have a decree against absent dé fendants set aside, and ' does not show that it has b'.eii act ed on by the inferior court. \he éo)rt of appeals will, consider it still pending there, and' consequently, no writ' of error will lie</p> <p>A decree die rectingiand to be convey? ed and appointing a commissioner to convey it, is final. If, after final decree in the inferior court, in favor of the complainant? the court permits the decree to be se- aside at a subsequent term, and on answei- filed, and upon 'that answer ultimately dismiss the complainant’s bill, the court of appeals 5vii] reverse a!i such subsequent proeei dings, without any inquiry into the merits of the cause, as made ¡put by bill, answer.</p>

<p>1. A covenant of warranty of real estate runs with the land, and suit may be brought on it by a remote grantee against the original grantor.</p> <p>2. The 'action on such covenant, by a remote grantee, is . local, and must be brought (if in a circuit court,J in the circuit where the land lies.</p> <p> 3. As in such case the declaration will manifest the jurisdiction. or want of it, advantage may be taken of want of jurisdiction on general demurrer. </p> <p> 4. But if the canse has once been to the court of appeals, and either through the inattention of the party or the court, that point has not been decided, want of jurisdiction can never be alleged afterxvqrds. </p> <p> 5. Notwithstanding after the cause shall have been remanded, a new declaration shall be fled, manifesting want ojjurisdiction, and a demurrer shall be fled on that ground, the principle is the same. </p> <p>6. A plaintiff is not bound to make prof ert of a deed, to the custody of which, he has no legal right.</p> <p> 7. It seems that the proper way of taking advantage of a copy’s having been fled instead of the original, is to demur without demanding oyer. </p> <p>8. Where a deed purports on the face of it to, have been executed by husband and wife, hit the wife has not acknowledged it, according to law, it may be declared onus the deed of the husband only, andwillbe admitted as evidence under such declaration.</p> <p>9. When a deed is offered in evidence, piirporling to have been executed by trustees of a town, the person against whom it is offered, may object to its being read without proof that they. were trustees ; but moving the court, after it has been read, to instruct the jury that nothing passed by the deed,, is not the way to avail himself of the want of such evidence.</p> <p>10. In a declaration in ejectment, no addition to the names of the lessors of the plaintiff, manifesting their character, is necessary: Therefore, they may state themselves heirs in the declaration, and prove themselves devisees, or otherwise purchasers, on the trial.</p>

<p>1. J1 decree of the inferior court affirmed, because no, copy of the bill was in the record or could be produced by c.crliorari. 1 and 2.</p> <p>2. It seems that a court of chancery may rightfully dismiss a bill as to all the defendants, when a part only have been served with process or appeared, if the bity shows no cause of action. ■ 2.</p> <p>A decree of the inferior court aifirined, because no copy of the bill was in the record or couid. be produced by certiorari. It seems, that a court of chancery may rightfully dismiss a bill as to all the defendants when a part only hare been served with process or appeared, if the bill shows no cause of action.</p>

<p>Jin entry for land held valid, oil evidence.</p>

<p>Aman who receives a deed of conveyance for land, and pays for it, after he knows that the vendor had previ, ously contracted, for the sale of it to a third person, add was in equity bound to convey it to him, will be decreed to convey to such tim'd person, although he knew nothing of this outstanding equity at the time he contractedfor the purchase of the land, 2.</p> <p>A man who receives a deed of conveyance for land and pays for it after he knows that the vendor had previousl contracted for the sale of it to a third person and was in equity bound on convey it to him, will be decreed to convet to such third person although he knew nothing of this outstanding equity at the time he contracted for the purchase of the land.</p>

<p>1. A small excess in an execution, occasioned by a mistaken calculation oftne officer, is not a sufficient cause for setting aside a saleoj land .under it, although the land was purchased In the plaintiff himself, and al. . though he knew that the defendant intended to apply to the court to correct the execution; especially. if it appears that the plaintiff haa no reason to believe there was any excess; having, on the day of sale, given credit for all the excess which it is probable he could have supposed to exist. 2.</p> <p>2. On a motion to set aside a sole on such grounds, the 'sheriff who made it, and who is alleged to have com- ' mitted the mistake, is a competent witness. 3.</p> <p>A small excess in an execution- occasioned by a mist ¡iken calculation of the officer, is not a suffi ckmt cause for setting aside a sale of lumi under it, although the land was purcr.asrd by (he plaintiff himself, and although he knew that the defendant intended to apply to the court to correct the execution, espe cially if it ap pears that the plaintiff had no reason to believe there was any excess, having on the day oi sale, given credit for al the excess which it is probable he could have supposed to exist.</p> <p>On a motion to s'et aside a 'sale en such ground, the sheriff who made it and who is alleged to have committed the mistake, is a complete witness.</p>

<p>AN ORIGINAR BIRR TO RECOVER FOR AMELIORATIONS OE RAND FROM WHICH THE COMPRAINANT HAD BEEN EVICTED.</p> <p>1. JL man who occupies land according to the boundaries ■ designated in his deed, will be considered a bona jidc occupant, unless it is proved that he knew the lines, as run, were variant frmn the lines mentioned, in the ..., 2.</p> <p>'St lifter commissioners have reported the value of improvements, in a case not coming within any of our occupying claimant acts, the proprietor of the land cannot compel the person from whom he has recovered it, to take the land with the improvements, in lieu of ■, a pecuniary compensation for the improvements. 3.</p> <p>3. It seems that this cannot be done at any stage of the proceedings ; because the proprietor, in recovering the land, made an election, by which he ought to be bound. 3.</p> <p>•&. Where the party objects to a commissioners* report, on the ground'that he had not notice of the time and place of the meeting of the commissioners, and especially if he makes affidavit of his want of notice, notice will not be presumed ; it must be proved. 4.</p> <p>5. Where a case does not come within the provisions of our occupying claimant laws, it is improper to compel the complainant to accept of bonds for the payment of the amount recovered according to the provisions of that act 5.</p> <p>6. The costs of the commissioners ought to he decreed the complainant; as well as his other costs. 6.</p> <p>7. Where half a house is recovered with the- land, and the other half left with the occupant, he is entitled to no ilau for the half recovered. 7.</p> <p>A man who occupies land according to the boundaries designated in his deed, will be considered a bona fide occupant unless it is proved that he knew the lines as run, were variant from the lines mentioned in the deed-</p> <p>After commissioners have report ed the value of improvements in a case not coming within any of our occupying claimant acta, the proprietor of the land cannot con.pel the person from wh.,m he has recovered it, to take the laud with the improvements, in li eu of a pecuniary compensaron fof tht improvements,'</p> <p>It seems that this cannot b'. done at any stage of the proceedings, because the proprietor in recovering the land, made an election by which he ought to be bound.</p> <p>Where the party objects to a 'commissioners’ re port, - on the ground that he had not notice of the time and place Of the meeting of the commissioners, and especially if he makes affidavit of his want of notice, notice will not be presumed; it must be proved.</p> <p>Where a case does not come within the provisions of our | occupying claimant laws, it is improper to compel the complainant to accept of bonds for the payment of the amount recovered, according to the provisions of that act.</p> <p>The costs of the commissioners ought to be decreed the complainant, as well as his other costs.</p> <p>Where half a house is recovered with the land, and the other half left with the occupant, he is entitled to no pay for the half re» covered.</p>

<p>1. There is no law which will justify the sheriff in returning a defendant in a scire facias, no inhabitant of his bailiwick ; nor can a scire facias, be abated by fuck return. 2.</p> <p>2. The plaintiff may have a joint sáre facias en a recognisance of special bail against all who are bound in tnc recognisance ; yet he may have a several execution awarded against either of them; and consequently, neither of them can take any advantage of any irregularity in the proceedings of the other. S.</p> <p>S. Jl ‘recognisance of sp cial bad endorse l on the writ in the singular number, and sigyed by three, is binding o i all, although the names of all are not inserted in the body of the recognisance. 4.</p> <p>;4. It is not necessary for the sheriff to return, the names of the special bail, otherwise than in the recognizance. 5.</p> <p>8. A surrender of himself by the defendant, or a surren. dernfhimby the bait, within the time prescribed by our act of asssmblv, discharges the bail. 6.</p> <p>1&, Jl surrender to the jaile- of the county where the judgment was obtained, is sufficient although the suit may have been removed by change o] venue, and although the act of 179b requires the sun ender tobe made to the sheriff. 7.</p> <p>There is no law which will justify the sheriff in returning a defendant in a scire facias, no inhabitant of his bailiwick, nor can a scire facias be abated by such return.</p> <p>The plaintiff may nave a joint scire facias on a recognizance of special bail against all who are bound in the recognizance, yet he may have a several execution awarded against either of them, and consequently, neither of them can take advantage of any irregularity in the proceedings againstthe other.</p> <p>recognizance of spe eial bail, endorsed on the writ iri the singular number and signed by three, is bill, ding bn all, although tbe names of all are hot inserted in the body of the recognizance.</p> <p>It is not necessary for the sheriff to return the names of the special bail otherwise than in the recognizance.</p> <p>A surrender of himself by the defendant, or a surrender of him by the bail, within the time prescribed by our act of assembly, discharges the baif,</p> <p>A surrender to the jailer of the county where the judgment was obtained is sufficient, although the suit may have been removed by change of venue, and although the act of 1796 requires the surrender to be made to the sheriff;</p>

<p>i. Where an issue has been made üp as to the usurious consideration of part of the note siied on, a verdict finding the debt in the declaration mentioned to be dis. charged by a specified sum, in damages, is erroneous, and the judgment ought to be arrested. 2.</p> <p>2; It is not error in a circuit court to decide according to law without hearing argument, notwithstanding the party against whom the decision is, insists on arguing that the law is otherwise. 2.</p> <p>3. Where a party has obtained aii order for a change of venue, he ought to object to a trial being had in the inferior court, and if he fails so to do, cannot assign as error in the court of appeals, that the cause ought to have been tried elsewhere. 3.</p> <p>4. If judgment is rendered for two sums separately, in. stead of the aggregate of them, yet, if by this informality the defendant is not subjéctedto the payment of more, either in debt, damages or costs, than he would have been by a judgment entered with technical formality, it is noterror. 4.</p> <p>Where an issue has been made up as to the usurious consideration of part of the note sued on, a verdict finding the debt in the decleration mentioned to be discharge d specified sum in damages, is erroneous, and the judgement ought to be arrested.</p> <p>It is not error in a circuit to decided according to law without hearing argument, nor with standing th e party against whom hte decision is, insists on arguing that the law is otherwise.</p> <p>Where a party has obtain an order for a change. of venue, he ought to object to a tri al being had in the inferi- or court and if he fails so to do, cannot assign as error in the court of appeals, that the cause ought to have been tried else* where.</p> <p>If judgment is rendered for two sums separately, instead of the aggre gate Of them, yet, if by this informality, the defen dant is not subjected to the payment of more, ei ther in debt, damages or cost than he would have been by a judgement entered with tehchnical formality,it is not error.</p>

<p>1. J1 man who was neither in possession of, nor. had title to land, at the time when an entry was made on it, cannot, in consequence of a purchase, afterwards, maintain a warrant for the forcible entry. 2.'</p> <p>2. The injury done, in such case, to the purchaser, consists in detaining thq premises ; and to justify an award of restitution, the warrant ust allege a forcible detainer. 2.</p> <p>3. J? charge that he forcibly entered •oji- the land, and that he detains it, without any allegation applying the force to the detention, is not sufficient 3.</p> <p>A man who was neither in possession of, nor haci title to land at the time when an entry was made on it, cannot in consequence of a purchase, afterwards, maintain a warrant for the forcible entry.</p> <p>The injury done in such case to the purchaser, consists in detaining the premises; and to justify an award of restitution, the warrant must allege a forcible de-' tainer.</p> <p>A charge that he fbrci. bly eritered on the land and1 that he detains it without any allegation applying the force to the detention is not sufficient.</p>

<p>j # {s a settltd principle, that checks on banks and bills of exchange are subject to the same rules, and that checks are treated as domestic bills of exchange. 2.</p> <p>g. If a person draws a check on one in whose hands he has no money, the holder of it is not bound to diligence or notice; he may treat it as a piece of blank paper. 2.</p> <p>3. But if a person receives a check drawn by another, and passes it in payment, he stands in the attitude of an endorser of a bill of exchange ; and if he did not know that the drawer had no money in hanfi, is not liable, except on due diligence and notice. 3. 'r</p> <p>4. If the person who receives and passes it, knew that tile drawer had no money in the bank, he will be in no better situation than the drawer would. 3.</p> <p>it is a settled principle, that checks on banks and bills of exchange are ' subject to the same rules, and that checks are treated as domestic bills of exchange. If a person draws a check on one in whose hands he has no money, the holder of it is not - bound to diligence or notice; he may treat it is a piece of blank paper.</p> <p>But if a person receives a check drawn by another, and passes it in payment, he stands in the attitude of an endorser of a bill of exchange; and if he did not know that the drawer had no money in bank, is not liable, except on due diligence and notice. If the person who receives and passes it-knew that the rawer had no money in the bank, he will he in m/ bet ter situaron than the drawer would.</p>

<p> JPlea that the consideration of a note given to the Bank of the Commonwealth, was the loan of their note's, issued as bills of credit in violation 'of tfie feder. at constitution, is no-defence to a suit brought by the bank tin such 'note. </p>

<p>Where a ferry across the Ohio is established within less than a mile of one already established, the record must exhibit a, stat^ of fact which will authorise it under the act of assembly.</p>

<p>1. The answer of a defendant, alleging new matter, is not evidence against the complainant.</p> <p>2. .2 deed made by one not a party, to the defendant, during the pendency of a suit respecting the land it purports to convey, is not evidence against the com. plainant, of the quantity of the land.</p>

<p> After having admitted evidence to go to the jury, without objection, a new trial cannot be granted-, on.the ground of its incompetency. </p>

<p>1 - If a complainant in chancery obtains a void injunction, and by so doing subjects those against whom it is obtained, to vexation and expence, the bond which he executed in order to obtain it, is not void in consequence of the injunction’s being void, 2.</p> <p>2. The defendant in a suit on an injunction bond, where the injunction has been awarded by justices of the peace, on his application, may be estopped to deny the author, ity of the, justices, at the time, to award the injunction, 3.</p> <p> 3. But to make the estoppel operate, it is necessary for the plaintiff to rely on it by demurrer to the plea denying the authority of the justices, or to reply the order awarding the injunction. 3. </p> <p>4. The powers of the justices appointed under the act of 1818, to award injunctions, dfc. expired at the next succeeding court of claims. 3.</p> <p>5. Yet, an injunction awarded by them after the expira, tion of their authority, was not void, but was an injunction de facto. 4.</p> <p>6, Where an injunction is awarded)to enjoin a judgment at law. a direction that the bond shall bé conditioned according to law, is sufficientbut in all other cases the chancellor ought to direct the condition'of the bond, particularly. 5.</p> <p>If a com-_ plainant in chancery obtain avoid injunction, and by so doing, subjects those against whom it is obtained to vexation and expense, the bond which he executed in order to obtain it is not void in consequence of the injunction’s being void.</p> <p>The defen tdant in a suit on aft injunction bond where the injunction has been awarded by justices of the peace, on his application, may be estopped . to deny the authority of-the justice--, at the time to award the injunction.</p> <p>But to make the estoppel operate, it is necessary for the plaintiff to rely on it by demurrer to the plea denying the authority of the justicess or to reply the order awarding the injunction,</p> <p>rhe powers of the justices appointed <mder the act of 1818, to award injunctions, &c expirefl at the next succeeding court of claims.</p> <p>Yet an injunction awarded by them aitei* the expiration of their authority was not void, bat was an injunction defacto. ■ 1</p> <p>Where an in junction is awarded to enjoin a judgment at law, a direction that the bond shall be conditioned according to law is-suffi cient, but in all other cases, the chancellor ought to direct the condition of the bond particularly.</p>

<p>1. Where executors have delayed to apply to the county court to appoint commissioners to settle their accounts until after the commencement of a suit in chancery by the devisees, the court of chancery has acquired jurisdiction, and the matter ought to beinvestigated there;</p> <p>2. An expartesettlementmade wifh the county court af ter the service of a subpoena in chancery in such case, is of no validity, and no effect ought to Iff given to if in the chancery suit. v</p> <p>3. If one of the executors claims in his own right, part of the property of the testator, which is in his hands as executor, his remedy is by bill in equity, against his co.executors and the devisees > he cannot maintain a suit at law, either in his own name singly, or against the other- executors, or a suit in his private character against all the executors.</p> <p>4. Executors, however numerous, are considered in law as one representative, and each has full power over the estate of the decedent.</p> <p>.5. Whatever causes of action they'- might have against the testator, are, in general, extinguished by their as. suming the executorship.</p> <p>6. Nor will a judgment at law in' favor 'of one executor against the others, for. the recovery of property of the testator, be any evidence of right, in, a. suit with the devisees.</p> <p>7. An executor may retain as his own, any Article of his own property which comes to his hands as executor.</p> <p>8. His possession as executor, will prevent the statute of limitations from affecting Ms right in Ms private character.</p>

<p>Where the principal became insolvent, and his securities obtained indulgence from his creditor, by agreeing to pay ten per cent, per annum, which they did, and then' took the note of their principal for re-payment, include ing the ten per cent paid by them, this last note was ■ held to be usurious.</p>

<p>1. Where a man alleges that an instrument in writing, given by him, contained a condition in his favor, which has been torn off, prosing that a part of the writing has been torn off, will not be sufficient; he must prove that the substance of the condition of which he claims the benefit, was in the instrument</p> <p>2. When a judgment is obtained upon an or..inary note for the payment of money, and the'difendant, by bill in chancery, alleges that he had given a mortgage of property to secure the payment of the debt, and claims the right of redemption, it is necessary to identify the debt for which the note was given, with the debt for which the mortgage was given,</p>

<p>1. Any judgment creditor has a right to fie a bill against the 'mortgagor and mortgagee and redeem the mortgaged property, bypaijing what is actually due on the mortgage. 2.</p> <p>g. A release operates per se and of its own intrinsic force, and evidence aliunde is inadmissible to repel or 'destroy its effect, or to show that it was intended to be more particular and limited in its operation than its language imports. 3.</p> <p>3. But a receipt is merely evidence- Of■ a fact, and any ■ generality of expression contained fin it. may be re. strained by other evidence, ML$tyi&§%that it was intended to be less extensive iti its operation than the words import. 5. ^j|</p> <p>bill against the morigagorand mortgagee, the mortgagedproperty by paying . íuaiiy^ae on tive, mortgage. Any judg- _ meat creditor has a right to file a Kill uorainct</p> <p>A release operates, per own intrinsic force and evidence aliadmissible'" to repel or destroy its effect, or to w¿''intend-14 ed to be more particular tion ^harTits language ports.</p> <p>But a receipt fact^and any generality oi expression it0Imayebein restrained by other was intended to be less ex tensive in its tba?íbe* words import.</p>

<p>1. Jin abandonment for the space of two years, by a husband, is, per se, a cause for a divorce.</p> <p>2. The right of the wife to obtain a divorce will not be impaired by an offer made by the husband, a short . time before the lapse of two years, to make provision for her support, unless it is accompanied with an offer to receive and acknowledge her as a wife.</p> <p>3. Where the husband is possessed of personal and real property, decreeing a gross sum in money, to the wife, on the divorce, is not consistent with the act of assembly.</p> <p>4. Where there are no children, and no alleviating circumstances in favor of the husband, a decree for the use of one third of the husband’s real estate during the wife’s life, and half his personal estate absolutely, is proper.</p>

<p>1. A judgment obtained by one administrator against the other, touching the estate of the intestate, is no evidence against the heirs, although the administrator who was plaintiff, never acted. 2.</p> <p>2. A settlement made by administrators with the county court, except so far as it is impeached, must be taken as prima facie correct ; and that part which is impeached must be pointed out in pleading, and successfully attacked in proof. 3.</p> <p>3. All administrator ought not to be charged interest, except so far as he has received interest, until demand made by the distributees, and refusal by him. 4.</p> <p>4. A bill in chancery for ■ the partition of land, is local, and like a writ of partition, .must be brought in the county where the land lies. S.</p> <p>5. When distributees come into hotel) pot, the personal estate must make a separate parcel, to be divided in kind, and must not be blended with slaves. 6.</p> <p>a judgmenfi' obtained by °ne adrrdpisüve other*”** touching the .estate of the evidence against the heirs although the . tor who^as |Jaintiff'never acted,</p> <p>A settlement made by ad mithSthet0rS county court, except so far as it is immustbe’taken as prima ikcie correct, whichts ^im^ peached,im must be’ pointed out and success fully attackéd in proof,</p> <p>An administrator ought charged Interest, except so far as lie has re-est, until msnd made by the chshim.</p> <p>A bill in chancery for part.lf*,on ca]; ana ¡ike. a writ of par-m the°countv where the 1 land lies,</p> <p>the personal éstate must rate6 arcet& to be divided in kind, and must not be slaves? Wlt When distributees come into</p>

<p>PLEADINGS IN AN ACTION OE COVENANT.</p> <p>Where a covenant goes only to a part of the consideration on both sides, and a breach of such covenant may be compensated in damages, it is an independent covenant, and an action may be maintained for a breach of covenant on the part of the defendant, without aver, ring a performance in the declaration.</p>

<p>1. Under a count in indebitatus assumpsit, by a merchant for goods, Wares and merchandises, sold and delivered, orders drawn by the defendant on the plaintiff, in favor of other persons, may be given in evidence. although there is no allusion in such orders, to their being paid in any thing but money. and the jury may, from the whole state and circumstances of the case, presume that they were paid in goods. 2 3.</p> <p>2. It is not necessary to support such count, that the. goods, Sfc. should have been sold at any certain price. 4.</p> <p> 3. Where the defendant in such action, introduces evidence, conducing to prove, that the plaintiff was in. partnership with, another not named in the writ, the plaintiff may ask his clerks if they have any knowledge of such partnership. 5. </p> <p>4. But should he ask them,“whether from the manner in which his books were kept, and his conversations with the supposed partner,” they had any knowledge of the existence of such partnership, the question would be improper and ought not to be answered. 5.</p> <p>5. There can be no recovery in an action of assumpsit? where, on the general issue, it is proved that there were partners, who have not joined in the action. 6.</p> <p>6. It is immaterial, whether, this proof comes out on the part of the plaintiff, or is introduced by the defendant| the rule is the same. 6.</p> <p>sumpsit, by a merchant for &°merohan-S dizes sold anddeliverdrawnb^the defendant on the plaintiff, in favor of son^may be given in evidence, aitho’ allusion in° duch orders to their being paid in money”6»»!! the jury may, from stSe^ancT circumtances of,the VJnder a count in in. debitatds as case, presumé that they were pai ins°° s</p> <p>jt ignot necessaryto support such *he goods * &c. jshould have been certain wine ' v"</p> <p>where the defendant evidence con|ucing to prove that the plaintiff was in partnership with another, not named in the writ, the plaintiff may ask his clerks if they have any knowledge of such partnership. .But should ¡he ask them * whether, from the manner in which his . books were kept and his conversations with the supposed partner,’ they had any knowledge of the existence of such partnership, the question would be improper, and ought not to be answered</p> <p>There can be 3io recovery in an action of assumpsit where,on the general issue 5t is 'proved, that there were paitners who have not j oined in the action, it is immate rial whether this proof comes out on the part of plaintiff or is introduced ]?y *he de^leSsUm 6 same</p>

<p>1. A person to whom executions have been assigned, can. not maintain a suit in his own name, on the constable’s bond, for filling to collect and pay them over ; the suit must be in the name of the assignor, for the use of the assignee. 2.</p> <p>2. Jl deputy sheriff cannot maintain a suit in his own name, on a constable’s bond, for fee-bills for services rendered by him and put into the constable’s hands to collect. 3.</p> <p>3. Nor can the high sheriff assign fee bills to his deputy, or to any one else, in such manner as to render a suit on the constable’s bond, in the name of the assignee, sustainable. 3.</p> <p>4. Before the passage of the act of February 4th, 1820, there was no law subjecting the constable and his securities to an action on their bond, for failing to account for bonds, notes or accounts received and collected without suit. 4.</p> <p>5. That act is prospective merely. 4.</p> <p>A person to whom execrations have been assigned, cannot maintain a suit in his own name, on the constable’s bond for failing- tc collect and pay them over; the suit must be im the name of the assign- or, for the ose of the assignee.</p> <p>A deputy sheriff cannot maintain a suit in his own name on a constable’s bond for fee-bills, for services rendered by him, and pur into the constable’s hands to collect.</p> <p>Nof can the high sheriff assign fee-bills to his deputy, or to any one else, in such manner as to render a suit on the constable’s bond in the name of the assignee, sustainable.</p> <p>1 Dig. 2M:</p> <p>Before the passage of the act of Feb 4th 1820. there was no law subjecting the constable and his securities to an action on their bond, for failing to account for bonds, notes or i accounts, received and collected without suit</p> <p>That act is prospective merely.</p>

<p>1. The last section of the act of 1811, respecting plats and certificates of survey, requires that the entry should he made within the time prescribed by law, and the survey thereon executed on or before the 2.9th day of November 1798/ anda failure of either requisition renders the patent void. 2."</p> <p>2. This requisition applies to all claims whatever, but those which are expressly excepted in the proviso to that section. 2.</p> <p>3. Under this act, it is competent to the party whose rights are to be affected by sñch illegal patent, to travel . behind the grant, either in a court of law or equity, and show by evidence that the claim was not within the exceptions of the act, and that the patent is conse, quently void.. ■' 3.</p> <p>2 Dig. 78*.</p> <p>The last section of the act ofl811, respecting plats and certificates of .survey, requires that the entry should be made within the time prescribed by law, and the surveythereon executed, on or before the 29th day of November 1798; and a failure of either requisition, renders the patent void.</p> <p>This requisition applies to all claims whatever; but those which are ex pressly excepted in the proviso to that section.</p> <p>Under this act, it is competent o the party whose rights are to be effected by such illegal patent, to travel behind the grant either in a court of law or equity, and show by evidence tnat the claimant was not within the exceptions of theacl, and that the patent is consequtnt. ly void.</p>

<p>1. Where, in trespass against, a constable, he justifies under an execution from a justice of the peace, he need not produce record evidence of the justice’s appoint, rnent; proving by oral evidence, on the trial, that he has acted for a number of years as such, is sufficient. 9.</p> <p>•2. Where the action is brought jointly against the con. stable and justice, who have plead a joint plea of not guilty, and. the constable only has justified, it is compe- ■ tent to the justice to prove, by oral testimony, that he has acted for a number oj years as a justice of ike peace. 2.</p> <p>3. Where the evidence introduced by the plaintiff shows a right to recover, and the defendant introduces evidence, partly written and partly oral, proving facts which would clearly destroy that right, the court aught, if required, to instruct the jury, if they believe the evidence introduced by the defendants, to find for him ;■ but an instruction to find as in case of a nonsuits is manifestly unappropriate and improper. 3,</p> <p>Where in trespass againat a constable, he justifies under an execution from a justice of the peace, he need not produce record evidence of the justice’s appointment ; proving by oral evidence on the trial, that he has acted for a number, of years as such is sufficient.</p> <p>Where the action is brought jointly againstj the constable & justiejb who have plead a jojhtplea of pot guilty, and the constable only has justified, it is competent to the justice to prove by oral testimony, that he has acted for a number of ¡tears as a justice of the peace.</p> <p>Where the evidence in. traduced by the plaintiff shows a right to recover, and the defendant introduces ev- • idence partly written and partly oral, proving facts which would clearly destroy that right, the court ought, if required, to instruct the jury, if they believe the evidence' introduced by the defendant, to find for him; but an instruction to find as in case of a non-suit, is manifestly unap propínate and improper.</p>

<p>1. A verdict of $300, in slander, on a charge of hog. stealing, is not outrageously excessive. 2.</p> <p>2. Affidavits filed in support of a motion, for a new tri. al, ought to form a part of the Bill of Exceptions to the decision overruling it, or to be referred to in the■ Bill ; otherwise they cannot be noticed by the Court of Appeals. 3.</p> <p>A verdict oí $300 in slander. on a charge of hog-stealing, is not outrageously excessive.</p> <p>Affidavits fil edinsuppor of a motion for a new trial, ought to form a part of the bill of excep tions to the decision overruling it, or to be referred to in the bill; oth erwise they canhot be no ticed by the court of appeals.</p>

<p>1. Where a writ of error, coram vobis, has been quashed on the ground of insufficiency of notice, the notice ought to '-c made apart of of the record by bill of exceptions, to enable the Court of Appeals to judge of its sufficiency.</p> <p>‘ 2. Its being filed among the papers in the court below, and copied by the clerk into the transcript sent to the Court of Appeals, does not make it a part of the record.</p> <p> S. Where the Judge of fhe inferior court, adds to a bill of exceptions, that other objections than those mentioned in the bill, were taken, without stating what they were, the Court of Appeals must presume that they were sufficient to justify Ms judgment. </p>

<p>1. If one breach is well assigned in a declaration in covenant, the declaration cannot be adjiidged ill on general demurrer. 2.</p> <p>2. In an action of covenant on an unsealed writing, pleading “•* that the writing declared on was not delivered to tne plaintiffs, or any other person for them,” is not a denial of the delivery, sufficiently certain. 3.</p> <p>3. To render a deed or other instrument passing by delivery, valid, no formal delivery is necessary. 3.</p> <p>4. A idea denying delivery, ought to state the facts so certainly and positively, that uo other conclusion could be drawn, than that there was. no legal delivery. 3.</p> <p>5. A covenant on the part of the lessor of a saw.mill, to furnish timber and roads during the term, cannot be considered in the nature of a condition precedent, and, therefore can be no bar to his recovering rent. 4.</p> <p>6. Where a motion is made in arrest of judgment, the grounds on which it was made must be assigned of record in the inferior court, and appear in the transcript of the record which is sent to the court of appeals; and if it does not, the court of appeals cannot adjudicate on them. S.</p> <p>If one breach is well as signed in a declaration in covenant, the declaration cannot be adjudged ill on general demurrer.</p> <p>In. an action of covenant on an unsealed v, riling, pleading * that the writi'.g declared on was not delivered to the plaintiffs or any otherj person for them,’ it is not a denial of the delivery, sufficiently certain.</p> <p>To render a deed or other instrument passing by delivery valid, no formal delivery is necessary.</p> <p>A plea denying delivery, ought to state the facts so certainly and positively, that no other conclusion could be drawn than., that there was no legsil delivery.</p> <p>A covenant on the part ísawmUi to furnish ' timber and roads during cannoTbe considered in the nature °recedentl<W and, thrrefore, can be no bar to his rent.TCrni°</p> <p>Where a motion is made in arrest of judgment, the grounds on which it was made, must be assigned of record in the inferior court, and appear in the transcript of the record which is sent to the court of appeals 5 and if it does not, the court of appeals cannot adjudicate on them.</p>

<p>1. Where a note negotiable at bank, on its face has béen endorsed to the bank, and suit is brought by the bank as endorsees, against the makers of the note, want of consideration is no defence. 2.</p> <p>2. From the endorsement to the bank, the law will imply that the note was discounted by the bank. 3.</p> <p>Where s ,mote negóhas been endorsedtothe . brought by tbe bank as endorsees a-makers1 of the note, want of con-no defence19 n ‘</p> <p>From the endorsement to the bank, the law will imply that the note was discounted by the bank. 1 Dig. 144.</p>

<p>1. A man who had bought and set up a billiard table9 after the iQth of March 1820, and .had sold it before the 10 th of March 1821, was subject to no fine or tre* Me tax for not listing it for taxation. 2.</p> <p>3. But as it was up and used part of the year 1820, he, was liable for the tax of that year. ¡3.</p> <p>5 Mg. 1068.</p> <p>A man who had bought and set up a billiard (able afler the 10lh of March, 1820. and sold it before the 10th of March 18Z1, was subject to no fine or treble tax for not listing it for taxation.</p> <p>Bat as it was up and used part of the year 1820, he was liable for the tax of that year.</p>

<p>No judgment for costs can be recovered against an execu. tor or administrator suing in his fiduciary character on a contract alleged to have been made with the testa, tor or intestate in his lifetime, and failing in the suit.</p>

<p>1, J1 domestic or inland bill of exchange, hy having been ■■ discounted by one of the Independent Banks, acquires all the attributes of a foreign bill of exchange.</p> <p>2, Jl foreign bill of exchange is properly protested on the ■last day of grace ; and so is a domestic bill, which has been discounted by the bank.</p> <p>3. Jf is not. only in relation to the bank which discounts ■■ it, that such bill is on the footing of a foreign bill of . exchange ; it retains the attributes of. one in the hands . of all subsequent holders for a valuable consideration.</p> <p>4. The words,- “f all bills or ■notes,”-in the charter of the bank, include bills of exchange, not only because the words are comprehensive enough to include them, but because they are followed by the words, “ drawers and endorsers,” which apply with more propriety to bills of exchange than to any other bills.</p> <p>Ante 13 & ^</p>

<p>1. A title acquired by a vender of land subsequent to his sale and conveyance, will inure to the use of his vendee ; and for, the benefit of the vendee, will every deed which he takes after such sale and conveyance, be construed to have been taken by him. 2.'</p> <p>2. The act of 1798 concerning champerty, and maintenance, does not merely release the contracting parties, from the fines, forfeitures■ and penalties imposed by former laws, but renders the conveyance valid and effectual. to pass the title. 3.</p> <p> 3. Wherever the original tille was derived from the ' laws of Virginia, the act operates, however numerous the conveyances may be, between the patentee and plaintiff. 3. </p> <p>A title acquired by a vender of land subsequent to his sale and conveyance, will enure to the use of his vendee; and for the benefit of the vendee will every deed which he takes after ■ such sale ana conveyance, be construed to have been taken by him.</p> <p>The act of 1798, concerning champerty and maintenance, does • not merely release the 'contracting parties from the fines, forfeitures and penalties imposed by former Jaws { but renders the conveyances valid and effectual to pass the title.</p> <p>Wherever the original title was derived from the laws of Virginia, the act operates-, however numerous the ¿ohveyatVc'es maybe, between Jhe patentee and plaintiff.</p>

<p>1. Jl clerical mistake in the Anno Domini of summons on petition, counteracted by year of the Commonwealth, stated in the summons, and the endorsement made by the clerk, of the time when the petition was. filed, i.</p> <p>2. The act of assembly, in requiring the officer to exe. cute a summons and petition, by delivering a copy, is merely directory to Mm ; he need not return that he has left a copy; a return merely that he has executed it, is sufficient; it carries with it the idea, that he has done all which the law requires. 2.</p> <p>a clerical mistake in DominTof GI1 petition, counteracted mm on-wealth stated in the summons, and the endorse-^the^íerk of the tbneC when the petition wat tile ‘</p> <p>aembljs in*3" requiníig the officer to sumrsonsand petition by delivering a C°erel • direc torito him • he nee • not ’ return that - eopj — a°re & turn merely that, he has ^sufficient it carries with it the i^^'loneaU6 which the requires,</p>

<p>1. Where heirs are not bound in a contract, and conseseqmntly, could not be sued, prior to the passage of the act subjecting lands to the payment of debts, it seems that a decree ought not to be rendered against them personally, on a bill taken pro confesso, but merely of the estate to them descended. 2.</p> <p>2. Where a bill does not allege that any estate has descended, taking it pro confesso, will not amount to a confession that any has. 3.</p> <p>Where heirs are n°* cohtract* and consequently could not thepas*0' sage of the actsubject™|iands to seems that a decree ought rendered against them ] personally, °"a *a* fesso^bu”11" merely of tIie estate to scended"</p> <p>Where a bill does not allege that any estate has descended, taking it pro confesso will not amount a confesj”°n tliat an^</p>