Volume 13 — Kentucky Reports

<p> Jin appeal from a juclgment of the Adair cir-cru,it court. </p> <p>Statement ofr case-</p>

<p>1, Usury does not vitiate a note given by the party on whom the usury was practised to a- creditor of the? usurer,in dis charge of a lawful debt due by such utu-rer, the creditor' having no knowledge of the xisury. 1.</p> <p>% A security in a note, the consideration of which ■,mas Usurious interest, cannot maintain a hill in equity in his-own name alone, for relief; the principal must be in some, way a party to the suit.- 2.</p> <p>Usury does not vitiate a note given by the party on whom th® usury was practised to a creditor of the usurer, in disohat-ge of a lawful debt due by such usurer, the creditor having no knowledge of the usury.</p> <p>A.secnrity in a note, the consideration of which was usurious interest, cannot maintain a bill in equity-in his own namp aldne for relief; the principal must be in some way a party to the suit.</p>

<p>Although the law requires that an injunction bond., where a judgment at law is enjoined, should be conditioned for the payment of the judgment, as well as the damages and' costs; yet, if a bond is in fact taken, securing the damages and costs only, the securities are not bound for the payment of the judgment.</p>

<p> On a writ oferror from the Boone circuit court. </p> <p>Statement of the case.</p>

<p> Writ of error from a, judgment of the Fayette circuit court. </p> <p>Statemont of ihecasc.</p>

<p> Writ of error from a judgment of the Trigg circuit court. </p> <p>Statement ai the ca“e></p>

<p>Jin entry for land held invalidt</p>

<p> Appeal from a judgment of'the Montgomery circuit court. </p>

<p> An appeal from, a judgment of the Hardin circuit court. </p> <p> Statement of the case </p>

<p>Writ of error to reverse a decree of the Jefferson C. C.</p> <p>Statement of the case.</p>

<p>1. A possession taken under a junior patent and continued for twenty years adversely, invests the possessor with the legal title of the eldest patentee-. 1.</p> <p>2. Where possession is taken under a junior patent and continued adversely for twenty years, the tenant becomes invested for the junior patentee with the Hile -of the elder patentee. 2.</p> <p>But where the possession was taken originally under d claim different from and adverse to both, and the possessor afterwards contracts with the junior patentee for the purchase of his -title, such contract will net relate back to the time of his -taking possession so as to make that possession the possession of the junior patentee. 2.</p> <p>A. A plaintiff in ejectment can never recover unless he shews in himself a right of entry; therefore it is compel tent to the defendant to shew that the land is covered by an elder patent, because -that disproves the plaintiff’s right of entry. 3.</p> <p>5. There can be but one right of entry, and the whole of that passes by the patent of the commonwealth to the first patentee, consequently, norjght of entry can pass to a sub¿Sequent patentee, because at the date of such patent no such right was in the commonwealth. 3. t</p> <p>0; A judgment in ejectment, rendered, on confession, is not more conclusive evidence agcíínst fie plaintiff in another ejectment than a judgment ml a verdict would be. 4*</p> <p>7. Equitable matter is no defence in an ejectment. ' - 5¿ JVew tfial awarded.</p> <p>A possession taken under foSTand^on-tinucd for ¿twenty years veltTthepos-sossors with the legal title patentee.041</p> <p>Where possession is la-'uHor^atcut and continuos adversely for thetanantbe-comes invest-edfor the, ju-with'thcTütle of the older patentee. But where wasPtaken°n originally un-deraclaim aLfadvowe111 to both, and the possessor aftcrwar<is w;ththcju-nior patentee c“as(Tof hi3 supil ° oontraci will' time takingpos-session, so as possession the possession of the junior pa~</p> <p>A plaintiff in r6r cover, unless-bp shows in try. therefore,itis-com-. ^gj^dantto show,ihat the land is covered by an because1 that’ disproves the plaintiff’s There can bobut-one right of entry ^¡loleofthat passes by the patent of then ^^to tho {¡rst patentee., consequcnt¡y, no right of. a‘ny subsequent patentee; because, at the . date of such patent, no such right tyas in the commonwealth,</p> <p>Ajudgment in ejectment rendered on ' confession, is Dot evidence against the plain tiff in another ejectment, more than a judgment on a verdict would be.</p> <p>Equitable matter is no d-e!eNe an ejec ■en ’</p>

<p> Writ of error on a judg' ment of the Breckinridge circuit court. </p> <p>Statement of the case.</p>

<p>jyr-t oj- error Qn an mrj ./r cj-Livingston county court.</p>

<p>A DECLARATION ON A SHERIFF’S BOND HELD SUFFICIENT.</p> <p>By the assignment of a judgment, the right which the plaintiff at law has to recover against the sheriff for a neglect or violation of his duty, before the assignment re-speeding executions which had issued on the judgment, does nut pass to the assignee, nor is it extinguished by the assignment. 1.</p> <p>2. Where cl declaration on a sheriff’s bond does not allege, that any matters returned by the sheriff as facts are false, they arc to be taken as true. 2 and 3.</p> <p>3, Jin allegation that a sheriff had levied ctfi.fa. on property of one of the defendants sufficient to satisfy it; that he had advertised the property for sale, and that it was not sold for want of -bidders, shews no cause of action against him. 2.</p> <p>*1. The sheriff having returned afi.fu. levied on slaves, the property of one of the defendants.w«?TO7ig him, the return is conclsuive on the sheriff as to the right of the defendant, and if on the emanation of a venditioni exponas, an adversary claim is asserted, the sheriff has no right to em-pannel a jury to ascertain its validity. 3.</p> <p>By the assignment of a judgment the right which the plaintiff at law has to recover against the sheriff, for a neglect or violation of his duty before the assignment respecting executions winch had issued on the j udgment, does not pass to the assignee; nor. is it extinguished by the assignment.</p> <p>Where a declaration on a sheriff’s bond does not allege that any matters returned by the sheriff as facts, are false, they are to be taken as true.</p> <p>An allegation that a sheriff had levied a fi. fa. on property of one of the defendants sufficient to satisfy it.; that he had advertised the property for sale, and that it was not sold for want of bidders, shows no cause of action against him.</p> <p>The sheriff having returned a fi. fa. levied on slaves, the property of one of the defendants, nam jug him, the return, is conclusive on the sheriff ás to. the right of' the defendant; and if, ®“a" venditioni exponas, an serted, the" sheriff has no nSht to em' ascertain its validity-</p>

<p>1. Where the plaintiff in error has pleaded a plea ten. dering an immaterial issue in the court below, he cannot obtain a reversal of the, judgment, on account of any illegal opinion of the judge, delivered in the progress of the trial. i and 2.</p> <p>2. Where the. act of limitations is pleaded against non. resident joint plaintiffs, the fact of one of them having been iu the state since the cause of action accrued, will not take the case out of the saving in favor of non. residents. 2.</p> <p>3. As alt the plaintiffs must have been out of the state, to bring them within the saving, all, must have return, ed, to deprive them of the ben eft of it. 2.</p> <p>4. If any one of the plaintiffs in such case should come into the state at the very instant the cause of action accrued, the statute would immediately commence running. 3.</p> <p> 5. It is now incontrovertible settled, that on the trial of the general issue in an action of detinue, no demand previous to the commencement of the suit need be proved. 4. </p> <p>6. The pendency of a bill to foreclose the, equity of redemption of a mortgage for slaves, is no bar to an action of detinue on the same mortgage, for the same slaves. 5.</p> <p>Where the phmtiffin era pioa°a * tendering an immaterial comVbelow he caauat ob? taina reversal of the judgment on account of any illegal opinion of the judge, delivered in the progress of ' the trial.</p> <p>Where the act of limitations is pleaded against non-resident joint plaintiffs, the fact of one of them having been in the state since the cause of action accrued, will not take the case out of the saving, in favor of non-residents.</p> <p>As all the plaintiffs must have been out of the state to bring them within the saving, all must have returned to deprive them of the benefit of it.</p> <p>if any one of the plain-iri sufil come into the state at the acti0n accrued, the sta-jute would commence running,</p> <p>It is now in-controverta-bly settled, that on the trial of the general issue in an action of detinue, no demand previous to the commencement of-the suit, need he proved.</p> <p>The penden-cy of a bill to foreclose the equity of redemption of a mortgage for slaves, is no bar to an action of deti-nue on tlie same mortgage for the same slaves.</p>

<p> Writ of error from a judgment; of the Montgomery circuit court.. </p> <p>Statement of the case.</p>

<p> Writ of error from a decree of the Fayette qircuit court. </p> <p>Statement of the case.</p>

<p> Ah appeal from a decree of the Bourbon circuit court. ■ </p> <p>Statement oí' the case.</p>

<p>'error on a decree of the M'uhlcn-. circuit court.</p> <p>t;tatcjnent 0 the care,</p>

<p>An entry for land held invalid, principally on account of the only witnesses who were examined in support of it, having, when under oath, at different limes, described the tree called for as the beginning, in different zoays.</p>

<p>1. A deposition taken on leading interrogatories oughPnat. to he read.</p> <p>2., Leading interrogatories are such as, Did you not see this? or, Did you not hear that?</p> <p>■3. It is not necessary to object to the interrogatories before the commissioners who take the depositions; because their office is'minisleral, and because the rule is not merely, that such interrogatories shall not be put, but that depositions taken on them shall not be read.</p> <p>4. - Where such depositions have been objected to on the trial in the inferior court, but read notwithstanding the objection, the court of appeals will award a new'trial; al-thoúgh other evidence of the probable kind may have been given, sufficient to justify the verdict.</p> <p>'5. But if the other evidence was of a conclusive character, or the objection to the depositions was made for the first time on the motion for a new trial, a new trial ought not to be granted.</p> <p>5. A new trial awarded.</p>

<p>^ error on a 0f f/ie Hardin circuit court.</p> <p>Statement af the case.</p> <p>Statement the case. of</p> <p>statement ot" the case.</p> <p>-Statement the case. r</p> <p>statement of the case,</p> <p>Statement of the case.</p>

<p>Crittenden for plaintiffs in error; Sharp, attorney-general, for defendant.</p> <p>1. Depositions in a chancery cause, regularly taken, and returned to the clerk’s office in due time, ought not to be rejected because, by the inadvertence of the clerk, they had not been filed with the other papers, and their existence was unknown to the court until after considerable progress had been made in the argument of the cause.</p> <p>2. The court of appeals will not reverse a decree in chancery on the, ground of depositions having been improperly excluded, if they see that the final decree ought to have been against the party in whose favor they were taken, if they had been admitted.</p>

<p> A decree perpetually enjoining judgments at law, affirmed on a close examination of the evidence. </p>

<p>mf ^ cmr/. yrom ft decree 0j the Mer.cer circuit' court.</p> <p>the «jase. statement' of</p>

<p> An appeal from a decree of the Breckinridge circuit court. </p> <p>statement the case. of</p>

<p> SAn appeal from circuit court.a decree of the Fleming </p> <p>aL . thfcSef *</p> <p>Statement of «5e case.</p>

<p>1. The act of 1819 limiting th'e time of bringing suits against executors and administrators, is confined to actions on contracts made by the decedent. 1.</p> <p>'2. Contracts made by executors or administrators, although in fulfilment of an executory contract made by the decedent, arc not within the act. 1.</p> <p>’3. A covenant of general warranty is transferred by deed of conveyance without warranty, and the grantee in such deed may bring suit in consequence of the warranty to the, grantor. 2.</p> <p>4. IVhere, at the time of the execution of a, deed, the grantor is not in possession, but the land is held by adversary claimants under an elder patent, an ejectment brought by the grantee and a successful defence by the tenants in possession, will give the grantee the same right to an action on the warranty, which an eviction would. 3.</p> <p>■5. The value of the land at the date of the conveyance, with interest and costs, forms the criterion of damages in an action on a covenant of warranty. 4.</p> <p>6. The price actually given'for it, is the best evidence of its ■ value. 4.</p> <p>7. Even where payment has been made a long time before the deed was executed, and the price of the land has risen in the mean time, the sum given, and not the worth of the land at the time the deed was executed, is the criterion. 4.</p> <p>8. Where the consideration given was another tract of land, the value of the land conveyed, and not of that given in conr sideration, is the criterion of damages. 4.</p> <p>The act of 1819 limiting' the time of bringing suits against execr-utors and administrators, is conlined to actions on contracts made by thb decedent.</p> <p>Contracts made by executors or administrators, although in fulfilment of an executory contract made by the decedent, afe not within the act.</p> <p>A covenantof general warranty is trans fern d by deed of convey anee wit'ontgenc-ral warranty, and the grantee in such deed may bring suit in consequence of the warranty to the grant-- or.</p> <p>Whore, at the time of the execution; ofa deed,the grantor is not in possession,' but the land is held-by adversary claimants under an elder patent, an ejectment brought by the grantee and a successful defence by the tenants in possession, will give -the grantee the same right to an action on the warranty which an eviction would</p> <p>The value of the land at of am¡e° Wh~ interest and °°sts' forms ofSa^esiu an action on a covenant of 'van anty'</p> <p>The price a tually given°" for it, is the of its6 value°e</p> <p>Even where payment has j a foríthTdetS was executed? and the r¡Sgn in the mean t5.me!tbe sum noTthVrworth ofthelandaf time the eoutefMs the</p> <p>1 Litt. Rep. 419;</p> <p>Where the consideration given was another tract of land, the value of the land conveyed, and not of that given in consideration, is the criterion of damages.</p>

<p> A writ of error on a decree of the Bullitt cir-CUÜ courL </p> <p>statement a the case-,</p>

<p> A 'writ of error on a judg-merit of the general court. </p> <p>, the ease” °</p>

<p>A person having the complete legal title and actual possession of land, is considered as holding adversely to all the world,, including those from whom he received the possession and the,title.</p>

<p>1. A •parol gift of slaves was void in Virginia in the pear 1759.</p> <p>2. The adverse possession of a slave so long as to bar any action which could be brought against the possessor, vests ' in him an absolute right of property.</p>

<p>Belief given in equity on a wholesale contract for merchandize, the seller having falsely represented that it was bought in Philadelphia, and that he zeas selling it at twelve and a half per cent, advance on the Philadelphia-pnces.</p>

<p>R£t,IEf\IN EQUITY DENIED, BECAUSE AN ABORTIVE, ATTEMPT HAD.‘S'EÉN‘MADE TO DEPEND AT LAW. — A CASE OP MUCH ÍMPORTANCfe AS A PRECEDENT.'</p> <p>1. It seems, that if a residenLof this state is sued in á distant state, while on business there, he would not forfeit his right to relief inequity, merely by not attending personally to the defence of the, suit there.</p> <p>2. But it is Ms duty- to appoint an agent to conduct the de- . fence, and if such agent neglects' it on accoimt of his own business, his principal forfeits all right to relief in equity.</p> <p>S. .But if the agent was prevented from making defence by * inevitable accident, it seems that his principal may‘make the defence in equity, which he was prevented from making at law.</p>

<p>%. The act of 1800, authorizing settlers to appropriate vacant lands, requires that the certificates granted by the county court should contain the same specialty and precision as. was required by the Virginia land law of 1779 ; and notoriety is as necessary under the Kentucky act, as it is under that of Virginia. 1.</p> <p>2. rThe act of 1803, authorizing such certificates to be entered with the surveyors and surveyed, did not authorize any departure in the entry with the surveyor from the locad n given in the certificate. 1.</p> <p>3. The certificate of the commissioners acting under the. act of 1798, respecting Green river settlers, is conclusive of the facts, that a settlement was made within the time, and that as much land was cleared as is required by the act. . 2.</p> <p>4. A settlement claim, under that act, held invalid for leant of evidence of identity. 3.</p> <p>The act of 1800, authorizing settlers to appropriate vacant lands, requires that the certificates granted by the county court should contain the same specialty and precision as was required by the Virginia land law of 1779, and notoriety is as necessary under the Kentucky act as it is under that of Vir-</p> <p>The act of 1803, authorizing such certificates to be entered with the surveyors and surveyed, did not authorize any departure in the entry with the surveyor, from the location given in the certifi- ■ cato.</p> <p>The cerüfi-commissioners acting un-dor the act of ine Green ri-vor settlers,is conclusiveof ^settlement^ was made within the an<} , that as much hind was cleared as is le ac ' ’</p> <p>A settlement claim,under jhat act,held “ant^off ex-donee ofidea-tity-</p>

<p>1. The survey' and depositions in another cduse depending in the court of appeals, admitted to be used in this, from circumstances strongly evidencing that the parties in the court below had agreed ththey should. 1.</p> <p>‘2. Identily is all that is required to render valid settlement• claims originating under the act of 1798. Notoriety is clearly not required. 2.</p> <p>3. Although the act requires actual settlement on the land, yet it is not necessary that the commissioners’- certificate should state, totidem verbis, that the settlement was included. If it states, “ improving the same agreeably to an act of assembly,” (reciting the title of the act,\ it is siifficient; the improving shall be presumed an actual settlement. 3.</p> <p>4. By the Virginia land law of 11 Id, ike proprietors of re-yolulionary military claims were permitted to enter them -with the surveyor, and where they did so, the entries must have all the specialty and precision required in case of entries on treasury zmrants. ■ 4.</p> <p>and depose lions in ano-j_|le 0f appeals, ad-from’circum. stances strongly evi-parties in ihe court below had a-f^^shcmld' y</p> <p>thatisrequir-cd to render valid a settle-orfinatin™ under the*5 actofl798; c^arl^ncd' required.0</p> <p>Although the actua?settlement on the land,, yet it is thatthecon? missioners' ceriificate totidem vn?' bis, that the same agroea-ofassembly0” [recitingthe title of the ficienq *the^~ improving shall be pro-sumecl an actual settle-settlement was included. If it states “ improving the ment.</p> <p>BythéVír¿ gima land of 1779, torsofrcvolu-tionary milfr iaiT claims, t^°0 ^™rü' them with the surveyor,-theVdicUlo so; the entries must. ^ precision re-qniredincase oí ontries rants™y wa*”</p>

<p> Taking possession of the goods of a dead man, without colour-of title, constitutes an executor de son tori; otherwise, if there is colour of title. </p>

<p> A writ of error on a judgment of the Mason circuit court. </p> <p>of</p>

<p>, .. , . ,7 An appeal from a decree oj the Christian circuit court.</p> <p>>Hatp.mont of Hie caso.</p>

<p>/n. an action against a constable for a voluntary escape, it is indispensable that the jury should find thdi the escape was with the consent, or through the negligence of\he constable; or that the prisoner might have been re-taken, and that the constable neglected to make immediate pursuit.</p>

<p>1. An heir cuhnot maintain a suit at law for the recovery of a slave., without the assent of the administrator; but if the administrator refuses his assent, he may bring a suit in chancery against the holder of the slave and the administrator. 1.</p> <p>2. It is a settled rule, that the statute of limitations cannot, either in a court of lazo or equity, protect a trusted against the demands of his cestui que trust. 2,</p> <p>3. Where letters of administration had been granted in Virginia, prior to the separation, the administrator could, independent of any act of assembly of Kentucky, maintaini any aelion here, which he could if this country had still remained part of Virginia; it is one of the rights secured by the constitution. 3,</p> <p>4. The act of limitations commences running when the cause of action accrues, not zohen the plaintiff, who was ignorant before, comes to a knowledge of his rights. 4.</p> <p>5. The cases in which a chancellor will not permit the stat-,u1c to commence running, until the party discovers his rights, are where the rights themselves are purely equitable. If legal rights are pursued in a court of equity, the legal operation of the statute must prevail. 4.</p> <p>si. An administrator cannot be made responsible for the loss of properly of his intestate, occasioned by his not bringing mit until the act of limitations opposed a bar to recovery, unless he acted with bad,faith, was guilty of fraud, wilful default or gross negligence. B.</p> <p>An heir can-a°sui?al law tor the recóv-ery of a slave assenTo/the administrator; butifthe assen/he US' may bring a suit in chim-tbc^hddei^ofas thc slave and the adjninis-trator. It -s a settJe. rule, that th» statute oflim-Rations can-a°court of law or equity, protect a inandsofhie' cestui que ■lust'</p> <p>Where letters of administration had been granted in Virginia, prior to the separation, the administrator could, independent of any act of assembly of Kentucky, maintain any action here Which he could if this , country had still remained P?V of ono of the1S rights secured bytheconsti-tutl0(1'</p> <p>limitations commences timcaus'eof* action ac-ernes, not ^intiflTwho ^ ignorant before, comes to.a kvowl-riofnsT ^</p> <p>T^c?asos™ chancellor will not per-niil- the sta-until the party discovers his rights, aro where the rights themselves are purely equitable. If legal rights are pursued in a court of equity, the legal operation of the statute must prevail.</p> <p>An administrator cannot be made responsible for the loss of property of las intestate, occasioned by his not bringing suit until the act of limitations opposed a bar, to recovery, unless he acted with bad faith, was guilty of fraud, wilful default or gross negligence.</p>

<p>1. Where a tenant enters on land under a lease, his entry shall operate to the full extent of the right he had at the time of entry.</p> <p>2. Notwithstanding the lessor shall have reserved to himself a power of considerably reducing the ‘quantity of land leased, by sale or subsequent leases to others; yet, until such sales are made, or leases executed, the tenant is in possession of the whole land leased.</p>

<p>1. Either the vender or vendee in an executory contract for the sale of land, may resort to a court of equity for a specific execution of the contract. 1.</p> <p>2. The vender in an executed contract for land, may resort to a court of equity to enforce his lien for the purchase money. 2.</p> <p>3. On a contract to pay on a particular event, no demand is necessary, unless the happening of the event is within the knowledge of the payee only. 3.</p> <p>Either the vendor or vendee in an executory contract for the sale of land, may resort to acourt of equity for a specific execution of the contract.</p> <p>The vender in an executed contract for land, may resort to a court of equity to enforce his lien for the purchase money.</p> <p>Ori a contract to I’N °n a even^no'cle-mand is no-cessa>7, un-ofThe event'is wit¿*n tlie kn°wl-payee only.</p>

<p>THE ACT OF ASSEMBLY AUTHORISING CIRCUIT JUDGES TO QUASH FEE-BILLS AND FINE THE CLERKS WHO ISSUED THEM, IS NOT UNCONSTITUTIONAL.</p> <p>1. The ÍOth and 11 th sections of the 10th article of the constitution apply to crimes and misdemeanors prosecuted by the government, for public redress, and not to any proceedings for the benefit of the party injured by the illegal act.</p> <p>2. Where the sum to be recovered could be ascertained from an examination of an act of assembly, or a written contract of the parties, no jury was necessary to ascertain it by the lazo of Virginia, nor is under the constitution of Kentucky. 2.</p> <p>3. Whether a clerk issued a fee-bill or not, whether the services were performed, and whether the amount has been paid, are facts which, under the constitution of Kentucky, may rightfully be submitted to the decision of the court, without the intervention of a jury. 3.</p> <p>4. 'The laws of Virginia at the time of the separation, permitted the courts to redress, in a summary way, witMut the intervention of a. jury, injuries resulting from the negligence, misfeasance or malfeasance of their officers; consequently, laws similar in spirit and operation, passed by Kentucky, arc not unconstitutional.</p> <p>íhe Iff®, and tttli actions article of the constitution, applies to misdemeanors prosecuted by the po-Vubbo n> f ,r §ress,°andnot w my pro-the bMiefit'i f ie {. er i. juved by the ine6ai eci.</p> <p>Where the sum to be recovered could be ascertained from an examination of an act of assembly or a written contract of the parties, no jury was necessary to ascertain it by the' law of Virginia, nor is under the constitution of Kentucky.</p> <p>Whether a clerk issued a íeh¿herIthet, services were performed, and whether the amount hásbecn paid, are facts, which, “"uitituiion of Kentucky, may rightlul-^tothe^de" c¿¡on 0f the court, with-°ut tll0.in‘ a°juvy.lon °</p> <p>The laws of Vivginia at’ tiio s'oara-fiera, permitted the courts t0<-1 mmary1 way”vithout re- ~`i1ting ficrn the flog 1-gence) fi1Th foasance or rn~1feasanco of their oil- ccl's; con~e- quently, laws similar in spi-i'it and opern-~ ration passed by J(ent~scky, are cot un-constitution- aL by J(ent~scky are cot un constitution aL</p>

<p> An appeal from a decree, of th e Boone circuit court. </p>

<p> A ziffit of error on a judgment the Jeffehon dny0r qjurt. </p> <p>Statement of the caso.</p>

<p>Appeal from a judgr. mmttjfthe Fleming • circuit court.</p> <p>Statement of thecase.</p>

<p>n nPPea,l f'om a judgment of the Fayette ’ circuit court.</p> <p>3ta(e-men). ^ the^ase, ' ’</p>

<p>1. By marriage, the wife’s interest in slaves vests in her husband. 1.</p> <p>2. In an action of detinue, brought by heirs to recover a slave, if it shall appear on the trial that any one of the plaintiffs was divested of his or her interest in the slave, before suit was brought, no recovery can be had. 2.</p> <p>3. There is no principle of law better settled, than that which precludes one tenant in common from maintaining, against his co-tenant, an action of detinue. ,3. ,,</p> <p>By marriage the wife’s in* ^ves "vests in herW-band.</p> <p>In an action of detinue, jJe¡rsStoreí cover a slave, if it shall ap-any one of the pi-.in tiffs oThifoHier^ intcrestinthfe slave, before ®ult was no°reoovery can be had. There is no principio of sfettiej^thaa that which rrecludcs one comrnonfrom maintaining against his ^0^0?de" tinue. •</p>

<p>1. The ads of 1801 and 1812, require that apeplicatior* to a plea traversing the execution and assignment of a note, plead as a set-off, should be sworn to. ' 1.</p> <p>2. A court ought not to sustain an objection made by a xmtness himself alone, that he is interested in the event of the suit, and that, his testimony will disclose facts which may be the foundation of a civil suit against him. 2.</p> <p>The acts of 1801.& 1812, iepKcatioiUo a plea traversing the ment of a note, plead as a set'ofr-</p> <p>A courtought not to sustain an objection jnade by a witness himself alone, that he is interested in the event of the suit; and that his testimony will disclose facts which may tie the foundation of a civil suit against him.</p>

<p>Writ of error to reverse an order of th* Esiill county court.</p>

<p>An appeal from a decree of the •Woodford circuit court. statement eg the ease. *</p>

<p>1'. An ordbr of the circuit court, merely setting aside ajudgment and verdict and rendering judgment for costs, witfi-out making any other disposition of the case, is not such a final j udgment as will authorise suing out a writ of errori</p> <p>$2. It seems, that a writ gf error will lie to a judgment for costs, improperly rendered by the inferior court pendente lite. Costs awarded pending the suit, ought to be award* e.d by order only, nt>t by judgment.</p>

<p> A writ of error on a judgment of the Lewis circuit court. </p> <p>Statement of the case.</p>

<p> An appeal from a judgment of the Adair, circuit court. </p> <p>Stotf*jjent ot the Me. °</p>

<p> An appeal from a judgment of the Shelby circuit court. </p> <p>Statement the ease.</p>

<p> A till in chancery was brought by heirs against an executor, stating a purchase from him by tlieir ancestor, of real estate, payment of part of the purchase money, an offer to pay the balance out of the personal estate of their, ancestor in his hands as executor, if a decree for a conveyance should be rendered, and that the balance of the personal estate should be decreed to them: Held, that as the conveyance of the real estate could not be decreed, there being no written contract for it, the bill was properly dismissed without prejudice. </p>

<p> An action on an injunction bond; part of the breaches assigned held to shozv no cause of action, and part adjudged, to be substantially good. </p>

<p>1. -A contract to pay $800, “in such hank notes as are received in deposite in the Hopkinsville Branch Bank,” is a contract to pay 800 paper dollars, and is not a contract to pay as many such dollars as will purchase $800 in specie. 1.</p> <p>2. The obligor in such a contract has a right to pay in notes of the least value of any which were, at the time of payment, received in deposite at that bank. EvL dcnce of the specie value of such paper ought to be ad. milted, and that valuéis the criterion of damages. 2.</p> <p>A contract to pay S801? ‘111 notes ^are received in ideposit in the! BranchSVI 6 Bank,’ is a contract to pay 800 paper dollars, and is not a contract to pay as many such dollars as will purchase $800 in specie.</p> <p>The obligor in such a contract, has a right to pay in notes of • the least value of any which were, at the time of payment, received in de-posite in that Bank; evidence of the specie value of such paper, ought to be admitted, and that value is the criterion of damages.</p>

<p> writ of error on a judgment of the Woodford Circuit Court. </p> <p>Statement the cas^v</p>

<p>1. M a suit at law, against a mercantile firm, notice for taking depositions, given to one of the partners here, when the othér. 'resides out of the state, is sufficient</p> <p>2. And this, although the partnership was dissolved be~. fore the trial.</p> <p>3, There is no law of this state authorising a deposition Í6 ^e before a single magistrate in any other state.</p> <p>4. Where a deposition is taken de 'bene esse, it is necessary fo shew that the witness’ attendance could not be procured at the trial, to entitle his deposition to be read.</p> <p>5. Where there is proof that a witness is a noiuresident and his ' deposition while a non-resident is taken in this state, it is not necessary to introduce any evidence to show that his personal attendance could not be procured.</p>

<p>Í. A suggestion that the heirs of a deceased obligor in a bond not binding the heirs, are insolvent .and their names unknown, is not a sufficient ground for transferring the jurisdiction from a court of law to a court of equity, I,</p> <p>2. If a suit in equity'is instituted on such hand, it is ne. eessary that the bill should stale'that the personal repre. sentatives have not assets sufficient to discharge the debt, and should show estate in the heirs, liable to it. l-</p> <p>A suggestion tllat the heir® obKgor^na^ bond not binding the solvent ^^ná" thoir names unknown, is suffi* for transferring the juris* diction from acourtoflaw to a coúrt of y-</p> <p>If a suit in equity is in-stitutcdon is necessary that the bill should state, sonaUepre-" sentatives have not as-todischar6^ thedebt, and should show ,ij’s ia e 0</p>

<p>As a caveat is a suit in chancery, the transcript of the depo. s¿lions and exhibits read in the inferior court, is part of the record in the court of appeals.</p>

<p>1. Where it becomes necessary lo prove the payment of money to a third person in order to make out a cause of action against the defendant in the suit, the legiti mate manner of doing it, is bij the examination of witnesses in court.</p> <p>2. The receipts of such person executed after the cause of action accrued agains l the defendant, are clearly inadmissible.</p>

<p>1. Of the proper parties to a hill in,chancery.</p> <p>2. An order to the trustees of a town to convey a lot, held' sufficient under the statute against frauds and perjuries.</p> <p>3. Where a contract for the purchase of land is executory, it is necessary that the price should' he stated in the written memorandum,- otherwise, parol proof would be necessary to sustain a bill.</p> <p> 4. But where the contract is executed by the payment of the "purchase money, and the payment admitted in the memorandum, it is not necessary to stale the price; because no parol proof can be necessary. </p> <p> 5. An obligor-may place an assignee in a better situation than his obligee is placed by law; and if he admits a payment to have been made, which in truth was not made, such admission may be conclusive in favor of an assignee, when it would not against the assignor-.. </p>

<p>1. Where the declaration in ejectment states that the lessors jointly and severally demised, it is supported by proving a tenancy in common. 1.</p> <p>2. There is nothing impracticable in fact, nor absurd in laso, in joint and several demises of the same land. 1.</p> <p>3. Where the defendants have title under a patent of equal date with that of the plaintiff in ejectment, the plaintiff must fail. 2.</p> <p>Whore the ^ejectment states that the 5essol's mised, it is supported by proving ato» mo¿</p> <p>There is no-¿cc'¡ surd in law, in joint and míseVof the same land-</p> <p>Whore the have title un-dor a patent equal dato the plaintiff ,n ejectment, the plaintiff must</p>

<p> The record, stating that the parties appeared hy their attorneys at the trial, where the writ had been returned, executed as to one defendant and not found as to the other, must be restricted in its operation and ,effect to the defendant on zohoity the writ was executed. </p>

<p>1. Where a decree has been obtained-against absent defen- - dants, on an order of publication, such decree is not to be opened or set aside, on the defendants’filing their answers S/c; nor is it to be set aside at all unless from the defence made out, the justice of the case requires that it should be. 1.</p> <p>2. Where a decree is obtained against several as joint defendants, an answer sworn to by one only of the defendants, aught not to be received. . *</p> <p>3. Where a decree has been obtained against absent defendants, and the complainants afterwards file another bill with a view of carrying the former decree into effect on answer, that bill litigating the facts on which the decree in the former suit was founded^ is inadmissible. 3.</p> <p>^yllerea oreo has been obtained Conean" order of pub-hcaüoii-, such to bo 0 ed ór set aside on (ho de-¿‘Vs ¶~ swers, &c.; nor is. it to be se¡í as“je at from the de-fence made theNs-tice of the case requires that it should he.</p> <p>Where a decree is obtained against several asjoint defendants, an answer sworn to by one only of the defendants, ought not to be received.</p> <p>Where,a cleu C1'ee has been ^vrstab-¡¡¿nt defendants, and the aftOTwardsnt' fije another bill, with-a. ' ®;ar’ formerdecree into effect on 'answer, that gao» which the dé-cree in the ^^fo^ed - jéljjadmissi- ’ ble.</p>

<p> Writ of error on a decree of the Nelson circuit court. </p> <p>Statement of the case.</p>

<p>1. A parol gift of slaves, without delivery, is void; but‘a gift by deed, on a good considerationj is valid without dc~ livery. 1. ■</p> <p>2. The relation of father and child ds a sufficient consideration to render a gift of slaves by deed from (he former la the latter, valid. 1.</p> <p>3. If the reservation in a deed is incompatible with the gift,. it will be void, and the gift valid. 2.</p> <p>4'. A gift of slaves by,a father to his children, to take effect'after the death of himself and wife, and not until then, is valid. 2.</p> <p>I; - Since the abolitioji of estates tail, the rules as to limitation> of estates in personal and real property, are the same? -3.</p> <p>6» The owner of a female slave may, by deer7, grce etii /7t<. children Tohich she shall thereafter have, ío (me of his chil~ dren, and the female herself to (mother. 4.</p> <p>7. Where a chose in action has accrued to the wife, before marriage, she must join with her husband in a■ suit for the recovery of it; but where it accrues during coverture, he may sue alone, or join his wife, at his election. 5.</p> <p>8. Slaves, while inpossession of the tenant for life of them, are not chases in action of the reversioner in fee; because the possession of the tenant for life is not adverse to, but consistent with his tille. G.</p> <p>A parol gift of slaves, ■without de~ lively, is void; but a gift by deed, on a good consideration, is valid without delivery.</p> <p>The relation of father and cliild, is a suf-Jlcient consideration to tender a gift of slaves by deed from the former to the latter, valid.</p> <p>If the reservation in a deed is incompatible with the gift, it will be void and the gift vali$></p> <p>A gift of slaves by a father to his children, to take effect after the death, of himself and wife, and not until then, is valid,</p> <p>Since the abolition of estates tail, the rules as to limitation of estates in personal and. real property, are the samo..</p> <p>The owner of a female slave may, by deed, give all flu; children which she shall thereafter have, to one of his children, and the female herself to another. .</p> <p>tVhere.a chose in aé-° tioji has accrued to the wife before marriage, she must join with her husband in a suit for the recovery of it; but where it accrues during coverture, he may sue a"lone, or join his wife, at his election</p> <p>Slaves, while "rti'wpTvint fer life of them, are not *Sfac-reversioner in fee; because the possession of the tenant for life, is not adrer?e,to, but eOMStrnt frith,Ba^ille.</p>

<p>1. A judgment rendered on a recognisance for, failing to. appear, is no bar to another ptoseculion for the'same offence. 1.</p> <p>2. Appearing by attorney, and inducing the court err'd, neously to quash a recognisance on. the, day of appear, anee, does not extinguish the recognisance; but as the defendant could not now literally cqmpíy witli it. a reasonable time was directed to be ¿[lowedfor him to appear in discharge, of it, after the revexsal 6f the judgment quashing it. 2.</p> <p>A judgment rendergd on a - recogbizance-for failing to appear, is no bar to another prosecution for the same offence.</p> <p>Appearing by-attorney, and inducing the court erroneously to quash a recognizance on the day of appearance, does not exa tingujsh the recognizance ; but as the defendant could not now, literally comply with it, a reasonable time was directed to be allowed fox him to appear in discharge of it, <£(ter the reversal of the judgment quashing it</p>

<p> Writ of error on a decree of the Jejfer-soft'circuit court. </p> <p>Statement tíie case. f</p>

<p>I. When the issue is, whether a note was given! for a gambling consideration or not, evidence that the payee, in the note had the general character of a gambler, is inadmissible. 1.</p> <p>'2. But evidence that he was in truth and fact a gambler, i': admissible. 2.</p> <p>When the issue is, wheih-eij °was |amblinga consideration jence that" t|ie paye'e in the note had the general a gambler,0is inadmissible,</p> <p>But evidence that he was in bler,isadmis-sibK</p>

<p>1. It is a settled principle, that a person asking the specific performance of a contract, must either show him- ' self without default, or must exhibit an excuse which will fully justify any default he may have made. X.</p> <p>2. Under what circumstances mutual contracts will be presumed to be the consideration of each other. 2.</p> <p>It is a settled principle, that a person asking the specific performance of a contract, must either show himself' without default, or must exhibit an excuse which will fully justify any default he may have made.</p> <p>'Under what circumstances mutual contracts will be presumed to be the consideration of each other.</p>

<p>A court of chancery cannot, in a summary way, decree • land to be sold, to pay the amount which, by a former decree, had been directed to be paid on a particular . day, by the person who had recovered the land for improvements made on it. Where such a measure is necessary and proper, it must be by bill filed to carry the former decree into ejject.</p>

<p>1. The boundaries of the land need not be set out in ct warrant of forcible entry or detainer. 1.</p> <p>2. A recovery in trespass is admissible in evidence in sueh proceeding, although it does not per se prove possession in the plaintiff at the time of the forcible entry. 2.</p>

<p>1. The difference between a decree dismissing, a hill in chancery for zoant ofprosecution, and a judgment at law in case of a nonsuit, pointed out. 1.</p> <p>2. If a decree dismissing a hill in chancery for want of prosecution, awards to the defendant 150 lbs of tobacco, it is a substantial error, for which the decree will be reversed. 2.</p> <p>Thc differ-a^ecree'dis-'1 missing a bill in chancery ^íwcution an°l j judg-' meat at law nonasui°fa pointed out.</p> <p>if a ,iücree dismissing a cilan-,, of j»osecu-n tion, awards *° *he de" of tobac co,*itisa sub* stantial error, for which the decreewillbe •reverse .</p>

<p>A WILL expounded; the questions relating principally TO THE BOUNDARIES OP THE LAND DEVISED.</p> <p>1. It appearing that the testator had mistaken the course of a particular line, the mistake toas corrected by other descriptions contained in the will.</p> <p>2. It appearing that the testator or writer had omitted something in describing the boundary of a particular tract of land devised, and the will, taken in connection with the objects, natural and artifeial, on the ground, manifesting the omission and what it was, the omission was supplied.</p>

<p>A PROSECUTION AGAINST- A CLERK, WITH A VIEW OP REMOVING HIM PROM OFFICE. THE CLERK ACQUITTED IN A TRIAL ON THE MERITS.</p>

<p>1. £. paper purporting to be a copy from the records of the auditor of the treasury of the United States, certified by the auditor to be a true copy, (but without his official seal,) and his hand-writing proved, is not admissible in evidence.</p> <p> 2. It is not an authenticated copy; because there is a seal to that office., for the purpose of authenticating such papers; and swearing to the hand-writing of the auditor, does not make it a sworn copy. </p> <p>3. Whatever copy, from any department of the general government, is so authenticated or proved, as to be admissible in the Federal courts, is admissible in the State courts.</p>

<p>1. A complainant's styling himself,\ “of Virginia," in his-bill, and stating that he. is a resident of Virginia,” in his replication, is a sufficient allegation of non-residencc, to entitle him to sue in the general court.</p> <p>2. The general court cannot acquire jurisdiction by consent of parties, except where both parties are citizens' of Kentucky.</p> <p>3. Where the complainant shores himself to be a non-resident, but says nothing about the citizenship of the defendant; yet it appears from the transactions stated in his</p> <p>' answer, that he is a resident of Kentucky, but it does not appear from any part of the record, that he is a citizen of this state’, the general court .cannot take jurisdiction.</p> <p>4. Where the record does not show that the general court had, jurisdiction of the cause, a judgment for costs is illegal.</p>

<p>1. A plaintiff in ejectment ought not to be permitted to amend his declaration, by the addition of a count, stating a demise after the commencement of the suit.</p> <p>2. But if such amendment was not opposed by the defendant, and it does not appear that he has sustained any injury in consequence of it, the judgment will not be reversed in the court of appeals.</p> <p>3. Where two demises are laid in the declaration, one valid and ^ other void, and the judgment is, that the plaintiff recover his term in the singular, it shall be adjudged to have been rendered on the valid demise.</p> <p>4. A defendant in ejectment, who had himself conveyed the, land to the plaintiff, is estopped to deny that he had title when he conveyed.</p>

<p> Writ of error on a decree of the Franklin circuit court. </p> <p>Statement ¿p the case,</p>

<p>1. It is error ter take up a chancery cause out of its turn on the docket, and try it, err make any final disposition of it, without the consent of both parlies.</p> <p>2. A compromise in "uniting,- made pendente lite, and not alleged in the bill or answerought not to be regarded by the court, in making a final -disposition of a cause, unless it is admitted by both parties.</p> <p>3. A decree or judgment can no more be rendered on proofs ■ zoithout allegations, than it can on allegations witlwut proofs. t ■</p>

<p> An appeal from a decree of the Christian'C. C. </p> <p>Statement of the case.</p>

<p> An appeal from a decree of the Harrison circuit court. </p> <p>statement e£ the caso,</p>

<p>1. A vender of land who fies a bill for a specific execution of the contract, must shew himself able as well as willing to make a clear title.</p> <p>2. Shewing an uninterrupted possession of twenty years in himself, and those under whom he claims* is not sufficient. 2.</p>

<p>1, Where issue has been joined on the plea of non est . factum, and the plaintiff offers no evidence to prove • the execution of the instrument on "which the suit is brought, the jury ought to beinstneeted to find for the defendant.</p> <p>2. Where, in a suit brought by an administrator on a bond given to his intesta te, there is a plea of non est factum, the administrator cannot be required to pro. dace Ms letters testamentary. 2.</p> <p>S. The existence of debts of superior dignity cannot be. given in evidence undi r the plea ofplene administravif; they must be specially pleaded. S'.</p> <p>Where ispe ed oí the°1J1" plea of non est factum, ti^offter^no1" evidence to prove the ex-eoution of ment on** which the sujt is jury outfit to be'instructed to find for the defbndant.</p> <p>Whero, in a by anadmiu-istrator on a bond given'to tboroníatate’ pior. of ñon est mvturn, tra <1-"a'n-nt be requlre-l to ■■i'o 'uco lime; tors rjr.</p> <p>The exis- , *™oe oifEb,-s dignity, cannot be given piea. of plene administra-vit ally pi cadi ed.</p>

<p>1. To affect a party as a purchaser of lands pendente lite, it is necessary to show that the holder of the legal title was impleaded before the purchase which is to be set aside. 1.</p> <p>2. Where the defendants plead that they are purchasers for ayaluable consideration without notice, the onus probaii-di as to notice, lies on the complainant. 2.</p> <p>3. If, -in such case, the complainant should prove notice af 1 his claim; yet, if it zvas of a character which neither a court of law nor equity would admit as valid, his proving the notice would avail him nothing, 3.</p> <p>4. A claim derived from the custom of the country in the early stages of its settlement, to give a particular part of the land for defraying the office expences, and procuring patents, cannot be enforced. 3.</p> <p>5. A custom, that a man without an autho-rity from the owner of lands, 'and without his consent or knowledge, and without knowing whether he wishes to sell or not, may dispose of them Ofi the ordinary terms, and by so doing bind the owner, seems to be intrinsically illegal. 3,</p> <p>6. The union of the legal title with a prior equity., will der‘ fm^ intervening equitable titles. 4.</p> <p>7. A court of chancery will not sustain a bill in behalf of a. prior grantee, against a junior grantee, to relieve him from the consequences of not having had his deed recorded according to law, if it appears that the prior equity was-in the junior grantee. 5,</p> <p>8. The rescisión of a contract decreed, on account of material facts having been concealed by one of the parties. 6.</p> <p>9. Partial compromises entered into when, the fraud was unknown, and the legal effect of the facts concealed not understood, will not preclude the injured party fromdemand-ing a complete rescisión of the contract, if justice otherwise requires it. 7.</p> <p>10. In controversies arising on contracts for land, the real representatives of the parties to the contracts ought to be-parties. 8.</p> <p>11. It is the practice of the court of appeals to summon parties who may be affected by a reversal of a decree, but are not parties to the writ of error; and thus make them parties to the writ of error, before the trial. 9.,</p> <p>To affect a¡ f j’andspra-0 dente Kte, it is necessary ^es ^Tdeíof the legal title was implead-the Vhich is to be set aside.</p> <p>Whore the ^^dthat are pUV„ chasers fora ^gray®°on“' lice, the onus probandi as to notice, lies on the complainant.</p> <p>If, in such case, the complainant should prove notice of his claim; yet,if it was of a character ivhioh neither a court oflaw nor equity would admit as valid, his proving the notice would avail him nothing. A claim derived from the custom of the country in the early stages of its settlement, to give a particular part of tile land for defraying the office ex-pences, &c. and procuring patents, cannot bo enforced.</p> <p>A custom, that a man without an authority from the owner of lands, and without his consent or. knowledge, and without knowing whether he wishes to sell or not, may dispose of them on the. ordinary terms, and by so doing bind the owner, seems to bo intrinsically illegal.</p> <p>The union of the legal title equity, Win defeat’inter-veningequi-iahle titles.</p> <p>A court of chancery will bill in?behalf of a prior ,(grantee, against a ju-torelievehim from the consequences of had hi.™eed recorded ac-«ordingto pears thatthe prior equity was in the ju-mor grantee.</p> <p>The rescisión a contrast Account oT material facts having been hr part°eSi</p> <p>Partial compromises enA tered into when tho fraud wasun-known, and factsconceal-ed not understood, will the injured0 party from demanding a soision of the contract, if Justice otherwise requires</p> <p>fn controver-siesarising on land' the real representatives of the parties to the ought*to*be parties.</p> <p>It is tfejirac-ticG oftKe court ol ap- , m ■peals to sum-v mon parties who may be affe<3ted by. 4 reversal of a decree, but .aré notparties to »fche •writ'of eiglpj-, and thus ma-ke them - pasties to the writ of érrtir, before the trial.</p>

<p> Writ of error on a judgment of the Nelson circuit court. </p> <p>Statement the case. cf</p>

<p> appeai from a decree of the Woodford, circuit court. </p> <p>statement of the case.</p>

<p>1. .Notice of the protest of a note negotiated at bank, given the next day after the protest, (theprotest having been on the last day of grace,) is sufficient to charge the endorsers, all the parties-living in the same town. 1.</p> <p>2. One joint endorser, who has paid the whole amount of a note negotiated at bank, cannot recover from another joint endorser, his rateable part, without proving the insolvency of the payor. 2.</p> <p>Notion oftho protest of a note negotiated-at bank, given the next day after the protest, (the protest having been on the last day of grano,) is sufficient to charge the endorsers— all the parties living in the same town.</p> <p>One joint endorser, who has paid the whole amount of a note negotiated at bank,cannot recover from another joint endorser his rateable part, without proving the insolvency of the payor.</p>

<p> An, appeal from a judgment of the Christian circuit court.. </p> <p>statement o'f tliocase.</p>

<p> A writ of error on a judgment of the Shelby circuit court. </p> <p>statemeut of the case. ’</p>

<p>1. A feme covert may, by deed of release, acknowledged as deeds of conveyance are required to be acknowledged, renounce all her interest in a covenant of general warranty..</p> <p>2. A grantor in a deed with general warranty, is a competent witness after the covenant of zuarranty has been re-: leased. 1.</p> <p>3. Witnesses interested, in behalf of their wives, offered and rejected as incompetent. 2.</p> <p>4. There may be such a possession in fact of -unimproved. ' and unenclosed land, as will enable the possessor to pro-. cced under the act respecting forcible entries and detainers against those who invade it.</p> <p>A feme cover!; iCU0Wi0dged as deeds of “°"vpy“rc^ knowledged,. renounce all lierinterestin gcmci-A^wav-ranly.</p> <p>A grantor in a deed with ranly, is a competent the^covonant of warranty lias been re-teased.</p> <p>Witnesses in-krili'of their wívei-, offer* ed and reject-potent °°m'</p> <p>There may be such a possession in fast, of unimproved and unenclosed land, as -will enable the possessorto proceed under the act respecting forcible on-i tries and de-tainers, a-who Invade it,</p>

<p> An appeal from a decree of the Bourbon circuit court. </p> <p>Statement oí the cas0‘</p>

<p>3.Whether, prior to the passage of the act of assembly requiring a decree in chancery to effectuate a legal sale Under a deed of trust, or not. it is certain that d sale made not pursuant to the powers contained in such deed, did not pass the legal estate, l.</p> <p>2. Where the power authorises a sale of the whole, or such part of the lot as may be sufficient to discharge the instalments then due, a sale for the instalments then, and for one not then due. is void.</p> <p>3. Nothing but a legal estate in lands was subjected fa sate for the payment of debts, by the ads of 1792 ami 1789. 3.</p> <p>4. Wnelher. by an assignment of a note taken for the purchase money of lands, the lien of the vender on the lands passes to the assignee, is doubtful. 4.</p> <p> 5. The principles on which the account of rents, profits and improvements was directed to be taken. 5. </p> <p>6. It is a matter of doubt, how far the doctrine of substitution can be applied to implied liens ; but it is cer. tain, that one claiming as the assignee of an implied lien, must make his assignor a party, in order to effectuate it against any one. 6,</p> <p>Whether prior to the passage of the act of assembly requiring a decree in chancery to effectuate a legal sale under a deed of trust, or not, it is certain, that a sale made not pursuant to the powers contained in such deed, did not pass the legal estate.</p> <p>Whore the power au-thorisesa sale of the whole or such part "' of the lot as may be sufficient to dis-, charge the in-stalments then due, a sale for tbo instalments then, and for* one not then due, is void.</p> <p>Tiothingbut a legal estate in lands, was subjected to sale for the payment of. debts, by the acts of 179^ an/11798.</p> <p>Whether, by an assignment of a note taken for the purchase money of lands, the lien of the vender on the lands passes to the as-signee, is doubtful.</p> <p>The principle on which the account of rents, profits and improvements was directed to be taken',.</p> <p>it is a matter of doubt how-far the doctrine of substitution can be applied to implied lions; but it is cor-tain, that one claiming as the assignee ofan implied Jien, must make his assignor a party, in order to effectuate it against any one.</p>

<p> appeal from a judgment of the Franklin circuit court. </p> <p>Statement of the case.</p>

<p>. , T. An appealjrom a decree of the Jefferson circuit court.</p>

<p>1. A bill in chancery, claiming the rescisión of a contract, dismissed on the merits. ■ ,</p> <p>2. A court of equity will not enforce the lien of a vender for the purchase money of lands., unless the bill, by appropriate allegations and prayer, entitles the complainant iothoJ ■ particular relief.,</p>

<p> A writ of error on a judg-merit of the Boone dr-evil court. </p> <p>Statement of the case.</p>

<p>1 • Where a court of law can get hold of the whole matter, it is as competent to try a question of fraud as a court of equity; and in such case the matter cannot be re-tried in chancery. 1.</p> <p>2. Where there is a failure of an.invesligation of the matter at law, from the defective pleading of the defendant, he is nevertheless barred by the judgment from a. resort to equity,, if by properly pleading the matter so improperly pleaded, the whole merits of the case could have been tried at lazo. 1.</p> <p>3. Where aplaintijf undertakes to indemnify an officer for-selling property taken under his execution, the judgment ■in a suit against the officer for so doing, is conclusive on him, unless it shall appear that he had no notice of the suit, or that the judgment was obtuined by collusion. 2.</p> <p>4. A recovery against an officer for selling property alleged by the plaintiff to be the property of the defendant, but claimed by a third person, is conclusive of the right of such third person against the plaintiff, as to that identical property only; the plaintiff may, by bill in chancery, contest the right to other properly claimed under the very same title. 2.</p> <p>b. Where a plaintiff indemnifies the officer and has property sold under an execution to the amount of his judgment, and the execution satisfied, his judgment is extinguished; consequently, if a third, person recovers against the officer whom he has indemnified, the plaintiff has no remedy at law against the estate of his debtor; his relief is in equi-1y. 3.</p> <p>6. In order to protect properly against the claims of creditors by an agreement made in consideration-of marriage, it is indispensable that the contract should be executed before the marriage. 4. ■ s ■■</p> <p>7. The recital in a deed of gift executed, after marriage,. that it was made in consideration of a verbal promise before marriage, is, it seems, no evidence against a creditor, of the existence of such promise; or, if evidence at all,, it ■may be rebutted by circumstances. 4..</p> <p>8. The plaintiff in an execution who has indemnified an officer for selling property which is proved not to have been the properly of the defendant, but- of a vendee from him, is entitled inequity to recover of his debtor the amount due to him on his judgmentbut if the jury shall have given exemplary damages against the officer, or by any means the sum recovered against him exceeds 'the amount of what was due him, the plaintiff in the execution must lose the excess. 5.</p> <p>9. Where property, liable to the claims of creditors, has been transferred, to the children of the debtor, equity will decree, at the suit of the creditors, á sale of the specific, property, if it can be had, and if not, that the children who received it shall pay its value out of their own estate. 5.</p> <p>10. A' judgment against an officer for seizing and. selling the property of a third person to satisfy an execution, is no evidence, as bctzoccn the plaintiff and defendant in-the execution, that it was not ■the property of the defendants 6.</p> <p>Where a court of'law* can get hoid of the whole matter, it is as competent to try a question of fraud as a court of equity; and, in such caso, the matter cannot be retried in chancery.'</p> <p>If there isa failure of an investigation of the matter at lanq from the defective pleading of the defendant, he is, nevertheless, barred by the judgment from a resort to equity, if, by properly pleading the matter so im properly plead, the whole merits ofthe case could have been tried at law.</p> <p>Where a plaintiff undertakes to indemnify an officer for selling property taken under his execution, the judgment in a suit against the officer for so doing, is conclusive on him, unless it shall appear, that he had no notice of the suit,1 or that the judgment was obtained by collusion.</p> <p>A recovery against an officer for selling property, alleged by the plaintiff to be the property of the defendant, but claimed by a third person, is conclusive of the right of such third perspn a-gainsl the plaintiff, as to that identical property only. The plaintiffmay, by bill in chancey, contest the right to other property claimed under the very same title.'</p> <p>Whore a' plaintiff indemnifies the officer and has property sold under an execution, to the amount of his judgment, and the execution satisfied, his judgment is extinguished, consequently, if a third person recovers .against the officer whom he has indemnified, the plaintiff has no remedy at law against the estate of his debtor; his relief is in equity.</p> <p>In order to protect prop-th/claims od creditors by an agreement 00>}-marriage, it is indispensable °£?" ^executed before the marriage.,</p> <p>Therecitalm a deed of gift made in con-^d®rr^°noi" p^i'se be-foremar-riage, is, it seems, no ev-id^"st acred-ftor, of the existence of or°ifevidence at’all, it may be rebutted s¿ancesUm" 0 '</p> <p>The plaintiff inan <rcec’’" indemnified'13 an officer for selling prop-™vednatto have.beenthe property of £ut ofá vendee from him,;is enti-hisdebtorthe amount due tohim on his '|,utSff the’ju-. ry shall have given exem-ges"against* the officer, or by any means, ““ re" against him, exceeds the. amount of what wasdue plaintiff in th'e-execution must lose the Where nron-ertj, liable to the olaipis of been trans-aS ferredtothe children of eTiit°bwill decree atthe suit of the creditors, a specific property, if it can be had, and if children" who received it shall nay its pelí0 own os-tato.</p> <p>A judgment agaijpst an oiheer for^ seHing the property of a third person execution Ts no evidence, as betvveen andPdefen-ff <lant in the execution, noflhe^re - erty oVXP defendant,</p>

<p>1. An entry for land held invalid on evidence-.</p> <p>2. Although a survey has been executed long enough to he on record, yet if the certificate is not sufficiently descriptive, its notoriety must be proved.</p>

<p>Turner for plaintiff in error; Caperlon, for defendant.</p> <p>1. On an appeal from a justice of the peace to the circuit court, it is immaterial whether the warrant of the justice was voidable or void. If the plaintiff in the circuit court then shexvs a cause of action, it is sufficient. 1.</p> <p>£, But the cause of action then shewn, must be of the same kind xoith that expressed in the warrant, and one of which the justice 'had jmisdiciion. 1.</p> <p>On an appeal 0‘f peace* l0 the 0;rcuit court,itisim- “£*®” warrant 0f. the justice was voidable or vo:«; if the plaintiff in the circuit court then ■shows a cause of action, it is sufficient.</p> <p>But the cause > faction then Slown, must Be<if the sam, kind with \iat expresses the warran, ani} one of wuch the justice hadjurisdic tion.</p>

<p>1. The seven years’ limitation act applies fa those cases only, where suit is brought for land on which the ad, ■ verse claimant has been settled for seven years ; and consequently, is no defence to a defendant who had settled on his cluim, but not within the interference, more than seven'years before suit brought.</p> <p>2. Where, lands are devised to several executors, with a power to sell jointly or severally, for purposes specified in the will, and there is a joint conveyance by the whole, it will not be necessary for the grantee to prove that the sale was made for the purposes specif ed, in order to make out his legal title in a pontest with strangers.</p> <p>3. But, in such case, if one only of the executors conveys an entire tract, his part only will pass, unless it shall be shown that the sale was for the purposes for which, bif the will, the lands were to be sold by the executors.</p> <p>4. Where, by a will, executors'are invested with a naked power to execute deeds of conveyance, in compliance with contracts to convey, entered into by the testator, ■and a deed is executed by them, it is necessary that the grantee asserting title under such deed against a Stranges', should prove such contract. The recital of it in the deed, avails nothing.</p> <p> 5. Jl deed reciting another deed, is evidence of the rented deed, against the grantor and those claiming under him but is not evidence against a stranger. </p>

<p>An appeal from d decree of the Henrfj' circuit court.</p> <p>gtaMyefihc.fa</p>

<p>f. An order in favor of a county creditor, Jor a payment out of the county levy, ought to be drawn on the sheriff, and not on his deputy, to subjebt the sheriff-,to a motion for nonpayment.</p> <p>■2. A sheriff is not answerable for the defaults of his deputy committed after the expiration of his {the sheriff’s) term iff service.</p>

<p>1. What negligence, in not having a survey amended, will justify the court in refusing to grant ■ a continuance for thutpurpose, although it may be manifest that a developcment of the merits of the case requires that the survey should be amended. 1.</p> <p>2. Under the acts of Kentucky granting lands to settlers', the settlement must be by the claimant himself, and not by proxy. 2.</p> <p>3. '7Tie court tncnf decide against a plaintiff in a caveat, on the merits of his claim, notwithstanding he has not filed the statement required by the act of assembly. 3.</p> <p>What negligence in not having a survey amended, will justify the court in refusing to grant a continuance for that purpose, although it may be manifest that a de.-velopcment of-the merits oftbe case requires that the survey should be amended.</p> <p>Under the aots of Kentucky, granting lands to settlers, the settlement must be by the claimant himself, and pot by proxy,</p> <p>The court may decide a caveat on the merits of his he has not fil-edthestate-assembly; °</p>

<p>Í. Where the loss of a bond or note is the sole cause of resorting to chancery, and the existence of the note is admitted or proved, a legal consideration will be inferred., and it is not necessary for the complainant' to prove the equity of the transaction on which the note was founded, until the onus probandi shall be thrown on him by evidence introduced by the defendant. 1.</p> <p>2. Where the existence of a record is not in issue, witnesses may speak of it without its being produced, and refer to it. for the purpose of explaining matters which are in issue, 2.</p> <p>Where the loss of a bond °ole cause oT. resorting to J chancery, trace^f the*" notéis admitted or proved, deration1" w;u {,e ;nfer^ red; and it is f0°r\^e°essar'S piamant°to" prove the equity of the on wMchThe note was founded, un-prob¿¿qUS shall be thrown on him, by evidence intro-,</p> <p>Where.the • existence of noTin issue witnesses ’. may speak of bein?produce eel, and refer to it for the tors which are in issue,</p>

<p>Í. It is by no means clear, that a part of the defendants in an execution have a right to replevy it. 1.</p> <p>2. It is certain, that if part of ike d<fondants in an execution do replevy it, they cannot sustain a motion to quash the replevin bond. 1.</p> <p>S. The office of deputy sheriff and justice of the peace are . clearly incompatible, and the acceptance of the latter vacates the former; yet if the deputy continues to act as sheriff after he has qualified as justice of the peace, his acts are not on that account void. 2.</p> <p>4. Jl replevin bowl taken by a deputy sheriff after he has been appointed a justice of the peace and taken the oaths of office, is not void, and cannot on that account be set aside on the motion of the, obligors therein. 2.</p> <p>It is by no1 1 moans clear, that a part of the defendants in an execution hare •a right to re-plevy it.</p> <p>It is certain, that if cart of the defendants in an execution do replevv it, that they cannot sustain a motion to quashthe replevin bond.</p> <p>The office of deputy sheriff and justice the peace, arc clearly incompatible, and the acceptance of the latter vacates the former; yet, if the deputy continues to act as sheriff after he has qualified as justice of the peace, his acts arc not., on that account, void-.</p> <p>A replevin bond taken by a deputy sheriff after he has been apjxúnted a justice of the peace and taken the oaths of office, is not void, and. cannot, on that account, ho set aside on the motion of the obli-gors therein: ■</p>

<p> A writ of error on a judgment of fe. Fleming circuit court. </p>

<p> The same in principle as the case of Farrow vs. Summers. ' immediately preceding. </p>

<p>A writ of error on a judgment of the Todd circuit court.</p> <p>statement of the case,</p>

<p>The seven years’ limitation act of 1809, held not to bar an ejectment brought by husband and wife for the lands of the wife, she having been a feme covert before possession was taken by the defendant, and continued so ever since, and not to avail those who had nót been in possession -se~ ven years, of the land in dispute.</p>

<p> A writ bf error on a judgment of the Harrison circuit court. </p> <p>^Statement</p>

<p>1. An order of the county court appointing commission, ers to assign dower, ought to shew on whose application it was made.</p> <p> 2. Where an order appointing commissioners to assign dower, has been set aside by the court, appointing them and other commissioners appointed, any report they may thereafter make is void, and cannot be rendered valid by the courts approving and ordering it to be re. corded. </p>

<p>a^eajjnm a jw]gmeni 0f ^ Gemral CemL</p>

<p> An appeal from a judgment the Logan cvr cuit court. </p> <p>Statement of le case>'</p>