Volume 14 — Kentucky Reports

<p>i<rew trja3</p> <p>} jn ™been snn!-moned & dr-tained on a duringthepc-nod "he had ^pr°PnYed tor his de- S fence,is asuf-fein^preuar-ed.</p> <p>An aotion cannotbesus-tained on a guardian’s j? ^fore tins passage of the act of 181S authorising ■iU°estates'of infants, for the proceeds of a sale made act.°r m</p> <p>Note. — Tho responsibility of sureties, is now, more than ever-heretofore, an interesting question in this country, and will, I presume, fully justify me in embracing this opportunity of presenting tlio leading oases, both'in England and America, on the subject.</p> <p>There is a distinction between the cases whore a man is, and mu=t necessarily be known to be a security, and security only, and-the cases in which he may be either security only, ora principal obligor. Securities for executors, administrators and guardians; securities in injunction, replevin and forthcoming bonds; securities for all public officers; and, in general, securities for the performance of all kinds of duty or service, public or private, are of the former character. Of the latter, are sureties in bonds<for the payment of money or property, given in the ordinary intercourse of private life. In these oases, the obligee generally does not know, and has no means of certainty knowing whether the person who first signs the bond receives tho whole consideration to his own use, or whether ho shares it with the others, or whether ho who receives tho whole does not give tho others a mortgage on that or other property, so as to completely indemnify them; consequently, injustice will rarely be done, in considering all the obligors as principals, ill relation to the creditor.</p> <p>As to that class of securities who can be known as sureties merely, the rule of law is, that “ the contract shall bo construed strictly, and in their favor, and shall not be extended by implication.” it appears to me, that many of the cases will warrant this addition to tho rule, that.general expressions in the contract shall be restrained in their application, to the state of tilings which was probably contemplated by the sureties at the time they entered into the engagement; though, perhaps, this will be considered as implied in that part oftho rule which requires them to be construed in favor of tho sureties.</p> <p>The cases which appear to mo, not only to support the preceding case, but the above doctrines to their full extent, are the following; Lord Arlington vs. Merrick, 2 Saunders 411; Ilorton vs. Day, ibid, in notis; Wright, vs. Russell,3 Wils. 530,.2 Black. P^ep. 934; Ship vs. Hay, 3 Atk. 91; Barker vs. Parkor, 1 Term B.ep. 287; Barkley vs. Lewis, ibid, in notis; Stratton vs. Iiastall, 2 Term Rep. 336; Ludlow vs. Simond, 2 Caine’s N.Y. Cases in Error, 29, 57; People of New-Yorlc vs. Jansen, 7 John. 332; Walsh, vs. Bailie, 10 John. 182; Union Bank vs. Clossey, 10John.271; United States vc. Giles and his securities, 0 Cranoh 213. . ■</p>

<p>Variances held material</p> <p>The dec]ara. tien recited, as in the con-°n junction for $100, with t^condnkin o» oyer, recited an^™a]j°0” ^particular statingit., cx-fi,e’ in_ terest & costs on the jwtg-anceheldma-terial.</p> <p>recited" asacondition of the condi-bond that the complainant should pay a51 costs an<i fendant dltion aa*set setoutonoyeri was for ofaUcostsfc damages which might material *</p>

<p>From the Greenup■ Circuit' Court. '</p>

<p> From the Logan Circuit Court. </p>

<p>The court appeais wilf not award a ^0ia1i1,ion tha^the'ver-diet was not supported by ^'¡Je^there was evidence f»m, which y,g facts material to their verdict.</p> <p>tion,tak,en de bene esse,., °evidence of the ^^¿r,aets^g j.ria}) is not‘a sufficient case °f surprise to ™<?nfo\-anev¿ trial.</p>

<p>Where time is necessary to ascertain fraud has*1 Been committed in the erty,°orPno£ an offer turn theprop-after thereon-tract, is not necessary; bere^uirecTis an offer to return it re-eently after of the fraud,</p> <p>A tender of the property site*-0 if^on" application, the seller will6notare-6 ceive it, ho, by such do-pg^g*s°aten¿er urmeces-sary.</p> <p>3 Term" Re 683, i Peters’ Rep. 24. *</p>

<p>Decree in chancery recount’o^its" uncortainty, id being im-certain3^rom it and the pers in the cause, what been deteí mined.</p>

<p>An order of publication, against absent-defendants ought to be for two Scad of eidit weeks” awl ought to be calendar tW° ‘months'.</p> <p>to suit in* ° chancery.</p> <p>Where aivife . %as such an equitable in-terestinlands croe for a convoy anco, the ?UI.t ,ougK -° the" name of husband and wife; but the * 001 Convey-for a conveyance to her •only.</p> <p>By an assignment made by a fa-choatef title*'' to land belonging-to his theintcrestof the son is not transferred or aflcctcd.</p> <p>If it is done under -apow■er of attorney from the in-ihor, it is qually void, as if dono without any colour of au-. thonty-</p> <p>a letter of attorney giv-f1 byan. lately '’oid.</p>

<p>JT/opi the^Hart Circuit Court, the Hon. Christopher Tomp- . kins sole Judge.</p>

<p>No action will lie in behalf of a parent, for procuring the marriage of an infant child without the parent’s consent.</p> <p>But an action will lie in behalf of the father while living, and in behalf of the &other after his death, for enticing away an infant, by which the parent lost her services.</p> <p>Such action, must be trespass on the case; not trespass vi et armis.</p> <p>It is no objection to the admissibility of a witness, íhat'he ha.s been heard to say, when not on oath, that I1® a'anrwí it any covered, it of interest101* for the deter-ruination of cx' voile**dire°il appropriate,</p> <p>anDo^ReT 293. °m' 6 '</p>

<p>Of the defen-ctant’s right to direct on . what property executions shall be levied, and of sending them to different , counties.</p> <p>At eommon lawd-a defendant had no SIKjji right.</p> <p>Filing an davit jndgiv-TS”c'tic° un-.•'assembly, on* ly protects ¿¿btorhí thé dfonty to ryWfih the di" ;°itafo fords ilo pro-tootidn to i®F°pnrLn_ ]:</p> <p>solcr'alTthp8' "personal es- & slaves ^county execution is directed, if affidavit has „“™co given oflandsin an-county, be</p> <p>But it-is only bet'''cf11, , that the law-gives.the de-^je tpan. ;t ciocI authorise J2™1 J? i>rf-»|SnlTstitT giving up ro-mote an<" iul worthless mríá</p>

<p>Prom the Bourbon Circuit Court, the Hon. James Clark sole Judge.</p>

<p>A replevin bond isa contract, within the meaning of the clause in the federal constitution, which prohibits states from passing laws impairing the obligation of contracts.</p> <p>The legal obligation of a contract consists in the legal remedy for enforcing it.</p> <p>The word, impairing, in the federal constitution, doesnotmean destroying; consequently every state law which weakens the obligation of a contract previously made, or renders it less operative, isa violation of that constitution.</p> <p>Making- the right to re-plevy for two years depend on the plaintiff’s not en-aorsmff that bank notes will be received, does replevin^law constitution-ah</p> <p>Replevin tíalljTmpair the obligation of con-are°unVonsti-iutional, wben pros-asCweU°asy' when retrospective also.</p> <p>Note. — Tho Reporter had intended to have given a catalogue o£ all the reported cases decided in America, in which a legislative-act had been declared unconstitutional, on any ground whatever; but, on reflection, he has concluded that it would be less embarrassing to the reader, to select the cases where the ground oX the decision was, that the act declared void, impaired the obligation of some contract.</p> <p>1. The first case ho has met with, is Vanbornc’s lessee vs. DorranOe, decided by the circuit court of the United States for the district.of Pennsylvania, at tho spring term 1795, declaring an act al^'asscmbly'' of the state of Pennsylvania, void. 2 Dallas 304. “'</p> <p>2. The next case is that of Fletcher vs. Peck, decided by the supreme court of the United States, in 1810, declaring an act of as-' sembly of the state of Georgia, void . 6 Cranch 87.</p> <p>3. The State of New-Jersey vs. Wilson, decided by the supreme court of the United -SLates, in 1812, declaring an act of assembly of the state of New-Jersey, void. 7 Cranch 164.</p> <p>4. The case of Crittenden vs. Jones, decided by the supreme court of North-Carolina, in 1814, declaring an act of assembly of that state, giving a stay of execution after judgment, on entering into bond with security, void. 5'Hall’s Daw Journal 520.</p> <p>5. Terrett, vs. I’aylor, decided in the supremo court of, the United States, in 1815, declaring two-acts of assembly of Virginia, void, so far as they impaired rights acquired under an executed contract. 9 Cranch 43.</p> <p>■6. The ToVri of Pawlet vs. Clark, decided by the supreme court of the United Slates, at the same term, declaring void an act of assembly of the stale of Vermont. 9 Cranch 292.</p> <p>7. Sturges vs. Crowninshield, in tho supremo Court of the United States, 1819, declaring an act of assembly of the gtate of New-York, void. 4 Wheat. 122.</p> <p>8. M’Millan vs. M’Neill, decided by the same court, at the same-term, declaring an act of assembly, of the state of Louisiana, void, 4 Wheat 2C?.</p> <p>9. Trustees of Dartmouth College vs. Woodwardj clecided by the same enure, at Ihe same term, declaring an act of ás'sémbly of tho state of Nevv-Hampshire, void, 4 Wheat, 518. ¿a vs.Bpiitb, ¡,'tfliy ,®be.I^i«3ajer%‘Míííephanica,-B.ank of-E©ÚnsykíMáa vs.S/nitb, ^Mjflédbs th4Su'ra®ríSe"@aurt''Mji)ie;XJniíed.lStaíésf,iirl821, déclar-, jíá^iSé/cfcrító ríf T^<a^«o-ír1«n*¥í^'^mf]> fi WViPíi t. 6 Wheat. ÍíST <A'???.*• ••. •• '* ■■ '' fg;áa%^'fe'ssd^V'@|fe'st«e cífBefansyim1wf$qíd> se<>’ •• «¡3r;-fTiP^ .• •- y11»* -t</p> <p>Bjddle, supreme OOUlí.C'*' -IT.-i--- ,m*> ,T 1 •_ ...Si</p> <p>fe'ty. Rfle<íir-HaYe'n,1 decided Ijy the supr.eipfe-cc>m\t.c># • tlxe , j¡b the:same.term, declaring void a;n;afit-,Qf,áss?}ublym moni. .8 Wheat. 464-ív • i'1. ' ’•</p>

<p>JBWít í&e Warren .Circuit Court fihe Han. Henry P. í¡ ...» . 'nux sole Judge. '.T.Tf '<</p>

<p>where the fegal title land is, by act °f assembly, trastees"^! a town, with- . out words th^^ucces-so* whether elected or th^countv cpnrt, do not tais? tjié legal titlei*</p>

<p>A member of the legisla--wivilcf-ocl1 against being served with ii^a civHsuit not requirin'!-bail, either by tion or b^th" aotl<rfl795.10</p>

<p>„ * . From the Mason Circuit Court, the Iíoii. A'darfi, Beatty * r , ’ ... J Judge. ■ „ ,,,</p>

<p>A chancery cause cannot which the is* is. made. “,p’ b™S tennafterthe return of-the subp“na?^e7 by consenkof parties,tacitly or express-slven‘</p>

<p>Where a man purchases a note, the cox~- sideration of which he ^j>wJ“ ¿J^. have no ré-course; a-^-otirfd fraud'.'' '</p> <p>note without assignment &' T~n claim nothing; against the ground 0t; contract,</p> <p>T[)(j pon„ic,, era{;on for the sale of a pre3™(i ;n note; itistho “S1'4 *3 tlie passerby the contract to the purchas-gouted-* consequently, it, .cannot be thing’shall be recovered on ation 0f {¡10 sale of it has. faiieci’</p>

<p>ófifey court sfftí&iioB ,ó£' ho ^r»irrif‘ fn» la^i-sJáfe^.t in S|e cas.&At any tí&e^V jff| tht-Rfe-retire from the bar, ought made, ought not to be ad-to-</p> <p>ThisisarMit whichthelaw tcrevery ami oouri can, by its, rales, de-ofbts^bgal11 right. A ,</p> <p>noíbemadoa trespasser ab initio, by o-taken under execution.</p> <p>ao^ nonfeasance, makes an oili-resPas"</p> <p>A-feheriíPmay summon aid in exccfoting every writ oí1 execution.</p> <p>Where tiio plaintiff elects to take judgment a-^_ two defend-0' ants found guilty o( the pass hcought todis’esntinue as to the one híPdoes'not1 take judg-merit.</p>

<p>Prom the Barren Circuit Court, the Honü j ; Tompkins sole Judge. • ••<-</p>

<p>Assignment ofbreaches in an action of covenant, hélil sufficient</p> <p>A setting forth of-a condition precedent, held defective.</p> <p>Performance, and excuse for non-performance of a condition precedent,' arematters'of law, !¿ there-. fore the facts on wliich either is supposed to depend, ought to be set forth in pleading.</p> <p>A demurrer by t}ie plaintiff to the defendant’s plea, brings the declara-' tion before the court,.</p>

<p> From, the Franklin Circuit Court, the Hon. H. Davidge sole Judge. </p>

<p>The county court attor-n°y is ^¡l0 t0 give notice to the collector of t!le ^“a^motion for a judg-went far fail-payit; "</p> <p>The levy for í'vo succeed~ bcincludedin notice.</p> <p>^enti^ro - «ly rendered in/avoroftbe justices of the andm^-ynev-ertheless be rendered by wUhsfamding they are plaintiffs in the motion.</p>

<p>From. the Caldwell Circuit Court., the Hon. Benjamin Shackleford &ole Judge.</p>

<p>From the Jefferson Circuit Court, the Hon. John P. Oldham sole Judge.</p>

<p>From the ¡Christian Circuit Court, the Hon. B. Shackleford , / ■ sole Judge.</p>

<p> < From.the Greenup Circuit Court.' </p>

<p>Tbe jesisqes qf a turnpike. ■ ' road are Isaí; ble to suit Ijy their, 'lessó^,, pnácovenartt tdv keep-tBé • >r<5ad; in fé-paircfíhe'lés-sors'-nemg, ..v bouncl so ;tg.*, ’ do, by,;¿'oñ-tra'ct with . govetnmiirid)j •without sh'4w ing that* tub lessor's had- ¡ been'^becffpr otherwise; ; damh'i&etlpin, conseqifeifce' of the roácfis being out 'of repair, and- . their i-eápon-. sibility to tile ;state.</p> <p>, In such dase, the measure of damages - will be the injury the: public, has sustained by the road’s being out of repair; and the amount of that injury being matter of o-piniog, the damages assessed by tbs jury must be outrageous, to authorise gran tingla mew trial' on *that.grourid.</p> <p>In an action of covenant, the plainüíF breaohesSon 'á$ many, and oy as few of coniaiíTeíf'ín the deed- as be pleases.</p> <p>, . is not^taken id' the inferior court, to giv-amemfa6de-claration and to withdraw í&eiit ™ flvan-tage cannot bé takeii of it in (he court o s.</p> <p>And even if ^exception is feiidarit nothing, unless hetustained someinjuryin consequence ‘k</p>

<p>From the Fayeile Circuit Court, /</p>

<p>A recpgni¡^, Zance of'¿psi cialbail, tak- ®“ CoM» .óf wbjf|p,e is. void” and .the bail is.nct es-Latte^fn a** Seire facias onlirecogni-</p>

<p>From the Hardin Circuit Court, the Hon. Paul J. Booker sole Judge.</p>

<p> From the Simpson Circuit Court. </p>

<p>A contract-of compromise ^ported, although the amount given was vastly disprapor-tionddto what tlfe party^ was bound to pay, even if the demand had not been barred bwthe statute or limitations, which seems to have been the case when the first compromise took place; it not appearing that any fraud or mis-representa-' tion had been used, & that after a suit had been brought on the first compromise, a second compromise took place, &-the first suit was dismissed, & no attempt was made to impeach the fairness of either contract, until after judgments were obtained on the second. Bapse of time and non-perT,f°n iheoompláin-ants, held to bar -reliet on the* contract which had • not been reconfirmed"^ -compromise,</p>

<p>'db'rom Coürt', tkWHbn.'íí. . * sole Judge. ' ‘</p>

<p>A decree on bill taken (wo oonfesso, reverse -</p> <p>A- contract ought to be tcTmuniftssf18 that the.right averted un-edfrom'it"* ought to be'produced, or some account was not produced.</p> <p>to merely ad-the right admitting ’ to be |™- ai^a®e-n" fcSt’and"no-more,</p>

<p>_ *From ike Franklin Circuit Court, the Hon. Henry Davidge sole Judge.</p>

<p>N , r . u. al" fectionis a ^ tfieif obli°r & wl®i warranted re-°°veOr> equity. awm</p> <p>A*3®®1* obllg-suchAonSd-eration, made by grandfather to a gnind-'daughter, is within tfiis PrmoiP e' .</p> <p>The act .of al!o'“r-of be impeached, any consideration which, before the passage of that act, was valul.</p>

<p>'FronMhe Harrison Circuit Court, the Hon. John Trimble sole Judge. : • - .</p>

<p>«-of ** old Evidences evictiotyfhi insufficient to ViüíVUc1tee to re-liSf in;e|fiity *t ■ Vi</p> <p>The eviction iiqust be j ¡rajé; beet)V</p> <p>A d-eed general '4*r-ran&,^viih-qujStalBt 0’f dower, * " '"the diusband, enjoin hny art of the tleifeé thafr pfethse fut* ijgh unless- 7 ttrepurcftaser sjhhi.ll have Been- Rsiujb-Pxhe, ,- ^fd'ovíiÉ</p> <p>Q»to6elj, to* <jhahcer§r.,</p>

<p>S^§g«»s| S a a ® o J 5 ® SC, .t; a „ Wo 13 3 n'TÍO O ^ ? O- - §->t gi '$ o «"Es</p> <p>A.r§ 8 •f-g §.“ J «"§ ■C.G ¡U j" O § »*," Ea\ §M|^in w o> H .. a ^ <2”,'cb 5? o • ?& A*»* 5* “ o *£m*. fN*3 . :N3 % S» C? S ffi fciOVj,§ ?S • § ^3 2| 2",J±. 0*’£1 ¿ C* w*5^ ^ oiS'g 2 geao gi •g?S 3-^1 g.S-§ ° s4! NiP "■ “ " ~</p> <p>- /«s-RS §.§:§»* g g-B ^ g p cr o s* P-.® g _ -I'J i® § O s § S St £ ¡^ P ^<g, » ^ , -O d r :r./«Sr« rt ^ >-nJsi* > = S.§'f-f$ his^fécovery, TroSer°snb-jcctofset-off; as being un liquidated ¿tííerwise.01</p> <p>Such reason least1 eq^y availing1 to prove actioff’of count or in equity%ia-action,of sumpsit, as prove .that ‘he ought' to recover mor» entitle?to</p> <p>A man iwt assign ¿flu of appeals, an 'T11 j¿¡»Sr"(sS tion. ■</p>

<p>Frota the Warren Circuit Court, the Hont H. P. Brodnax sole Judge.</p>

<p> From the Jessamine Court, the. lion. William, L. Kelly sole Judge. </p>

<p>From the Franklin Circuit Court, the lion. II. Davidge sole Judge.</p>

<p>A ¡«d-ment in ejectment, never oxecu-der\vhichUn" possession has never been T™ not''sto i il°oS”unnin8;P of the statute of limitations</p> <p>A possession taken under a judgment^ ejectment, Nation* o?" the demise laidinthede?-assent of the defendant, is 2 trespass,</p> <p>Consent given by a defendant, knowledge d? these facts, & oftheconsetion^oTright ¡n the plaintiff in eject-plaintiff tenant at will or for one year°</p> <p>statute against j’r^F^s & P®*' preventlts doing more; but the igno-defendant, of his own right and of want plaintiff*1 the would not render the en-ab</p> <p>Difference a</p>

<p>From the Caldwell Circuit Court, the Hon. B. Shackleford • sole Judge. '</p>

<p>The assignor of a judgment is not liable to refund the consideration paid, onj pursuing the defendant with due diligence to insolvency, unless tkere is an express a-greemefrt that he will do it.</p>

<p>After a trial, a new tiie^ court r«ay, in their discretion, ^ be filed, the justice of t!l<? ca.se re~ notr<other- Ut wise. ■</p>

<p>The purported to been rendered after ‘lecK,inS on a clennir-ver to a repli-oatign to a clerk cert-ified that neither plea, replication helm1 li-led: Held, that the court mUStPdecide the case on sufficieñ-Oration</p> <p>The statute h“s teratíon asto the mode of 1 1 w‘</p> <p>Asalo by an auctioneer,of t¿,is statute a-gf-i'ist frauds jj'™] no’meií oramlnm mad-c by tho ;ae a recovery, unless it 'he^iu-chasor or^omeono1 authorised tc-‘ío 11 f;’r k,m</p>

<p> From the Jessamine Circuit Court,-the Hon. William L. Kelly sole judge. </p>

<p>From (he Pendleton Circuit Court, the Hón. John Trimble sole Judge.</p>

<p>fr0mWthat10 part of a clocl'!'n in a (h-rqintes to the divi-ofsionofthecs-late'</p> <p>jn revising such decree^ the court of appeals will look into the evidence, to see whether the case was a meritorious one on the part of the applicant, & no further.</p> <p>"Where a divorce has been obtained by the wife, and her conduct is , blameless, an allowance, equal to what the law gives her on the death of her husband, is reasonable.</p>

<p>of covenants-dependent &</p> <p>If onc t0 ¿¡, y-;’-. first act, it is to rejy on ¡lis remedy by q/’actl0Ib.&llo£ performance6 by the other party the hif pCT.form^ ance.</p> <p>Where the contract is ecrformancc° on the one side consti-whotaeonsict-oration of .the performance d'one''side isnto°perfonn a part first, however evidence that he meant to rely on his ac-force tper-1" formance on the other side</p>

<p>The court may quash a er’Trcpori™" without ox-captions hay-toItTfit ap-pours on its face vnspio & defective.</p> <p>A commit-sioner cd to be appointed by the inferior court, & the books of the partnery to be laid before him.</p>

<p>a new trial directed by lhe of PP</p> <p>A promise not CTati0n, deemed void,</p> <p>^ sueb^romise.</p>

<p>DecreeonM¡ taken pro confesso, reversed-</p> <p>Where no contract is mai/to convey, and the ^ g°^a"ot ho was bound to convey with general ¿g0rrr“ J’ata he shall co’n-vey with gen- ^ jTemme-0us.</p> <p>'which a oom-ptainant files c°“” tions to^be*1" performed by ou„ht to aver wlfat ho per-í°rnlcd i» fact; an alie-gation ihat ho performed a¡l that he was bound to perform, isin-su cien .</p> <p>Cause. An exhibit "“t court bo low °until after final de-eree, cannot thc^court ^of appeals, although it is the büf and” (untruly) al-legod to be filed in the</p>

<p>From the Scott Circuit Court, the Hon. William Warren sole Judge.</p>

<p> From the Franklin Circuit Court, the Hon. Henry Davidge sole Judge. </p>

<p>Where an un-j°"Pj^nfo]d pajd a court of chancery has 1 "</p> <p>in such case, tiie° contract^ is unncoossa-ry,amlthoro-reiief'mif^be hacfatlaw. °</p>

<p> From the Mercer Circuit Court. </p>

<p>The recital adecree, that subpmnafine chancery was proved, ism* less°thet,rc11" cord shows an officer's return or añida-vi o suppor</p> <p>The affidavit sondear and positive, that an indict-™ent for per-Maintained16 on it, if false, and ought to ^urtand ducedto wri-ting & made the</p> <p>It seems, that’ 'tnalVn ' aofectire^r0 vague, that decree it, iftaken pm confesso, ^t^bc pronounced on an amend-«■o'confesso Snless^oce» had issued on scented. e°n</p>

<p> From the Barren Circuit Court, the Hon. Christopher Tompkins sole Judge. </p>

<p> '.From the Logan Circuit Court, the Horn Henry P• Brod-*' nax sole Judge, </p>

<p>//•o?b. ffie Simpson . Circuit Cou$, the íló&$ Christopher Tompkins, sole Judge. >'•*</p>

<p>From the Franklin Circuit Court, the Hon. tlenry Davidge sole Judge, -></p>

<p>A d(¡cree dis. missing a bill ohwl'itcly, 'without pro-reversed, and a decree cii-reclajj, dismissing it judioe.</p>

<p>An ord^* of Sants must bo m0nihs.CaL</p> <p>In proceeding arc unknown, there ought ^ ¿¿'eir names are unknown, aiiBgiUg itui the bill is not sufficient.</p>

<p> From the Madison Circuit Court, the lion. James Clark sole Judge. </p>

<p>From the Madison Circuit Court, the Hon. James Clark sole Judge.</p>

<p> From the Franklin Circuit Court. </p>

<p>F?om the Mason Circuit Court, the Hon. Adam Beatty sole Judge.</p>

<p> From the Franklin Circuit Court, the Hon. Henry Davidge sole Judge. </p>

<p>Evidence proving a toXive been mado for the purpose of crecUtOTs1* there being no allegation 0f such matte>’ in the cause’</p> <p>Parol evi-clence not to wnt“</p>

<p> From, the Shelby Circuit Court, the Hon. Henry Davidge sole Judge. </p>

<p>Notwithstanding One of several plaintiffs in error may obtain a severance, and refuse to prosecute the writ of error, yet the court of appeals niay reverse the decree as to him, or entirely, as if no severance had taken place.</p> <p>of . tions and evf. dence, and the^'a^ers S-je¿ ^ith parties and the cause,</p>

<p>An execution issued after yg® h only’voidabie astqthesher-to’ theV° húrT tiff himself</p> <p>tion, by the attornment d'ekn-dant, is of no avail;. such ^tomment is</p> <p>Where a ten-oui^adversely to ^ lantl-lord, itisev-Wence oi re" ises, sufficient to justify an ejectment-</p>

<p>The infancy of one heir Fe75“ís the. 0f 1309 from running, and protects tl|le s 0 a</p> <p>The proviso jn that act is iaiwuage^r& ought to’ re-ceií_e a simi-if"; proviso in the act of 1796, limiting the time of prosecuting writs of error.</p>

<p>whereRhe .successful ' ' occupant, bo recover aft8r -the aé-in bis fa^ot*</p>

<p>By an assign-' rnent of-n. not'e for the purchase money, or by an assignment sf the exegrrticrh if judgment & execution ^i^e been obtained, all the iienwhigh the assignor, the vender, had on the property sold, for the payment of the pas-chase .money, passes to the vendos.</p> <p>The purchaser's receiving-notes for tlib payment, without sure ■ ly,i3no waiver of !he licy:</p> <p>A subsequent purchaser is bound by implied, as well as express notice.</p> <p>Where the deed to the subsequent , purchaser re-ferid to the deed made by the party claiming the ' lien, by its date, held that the subsequent purchaser was bound at his peril to notice tb« contents of that deed, altho’ it was not recorded, nor lodged in the office, nor the time arrived when it was required to be so lodged.</p> <p>Such deed reciting that the consideration was secured to be paid at times future to that when the subsequent purchaser bought, held sufficient notice that the purchase money was not paid, and to support the lien.</p> <p>The word, se-deodf’heM0*1 not to mean surety.</p> <p>What issuffi, cieilt evi-to . wj’th'the «deration * stipulated to be paid.</p>

<p>Tiie act of 1796 author-cOTtrts^tcTcs-tablishto'wns, cióos not violate either-the conshtu-. ^ateorofthe u. States. 1</p> <p>J[0n0forPprop^ erty app,.0F prfated to fore the prop-’ erty.is taken, actua]]j received by the., proprietor.,</p>

<p>A plea filed fey a volunteer counsel not recognized by the party or his regular counsel, nor aó-quiescedinby either, may be withdrawn on motion, & it is error to refuse to permit it to be withdrawn.</p> <p>Want of probable cause, as well as express malice, is requisite to the maintenance of a suit for malicious prosecution.</p>

<p> From the Simpson Circuit Court. </p>

<p> Prom the Hopkins Circuit Court, the Hon. Alney McLean sole Judge. </p>

<p>From the Franklin Circuit' Court.</p>

<p> Yom the Nelson Circuit Court., the Horn .Paul. L Booker sole Judge, </p>

<p>This ca^e was, decided at the Fall Term ,18|^; a .petition, for ,rg* ' bearing wás presented, Jhé case suspended, and on the 3LstofMay 1824, th‘p;former opinion was renounced, and this adopted in its place.' The Reporter could see no necessity'for publishing either the former opinion or petition for, re-hearing, and has omitted both.</p> <p>A writ of fieri facias cannot directed to° the sheriff of any other or removes himself or ef-’ the county where the Jjbt!inedtWaS</p> <p>The act of *1^ori'e not wr;ts 0f capi-asarl satisfa-ciemlum or °t0 sue to other-counties, in by^^those6]^ which they might then byTheact of</p> <p>con, ° tains the “° on ¿1¡9 subject.</p> <p>Rules for construing statutes.</p> <p>Theintcntion of the legislature must be b^o'ther'cVi-denco besides the words of t.he act.</p> <p>1 Litt. 137.</p> <p>1 Dig. 484,</p> <p>Note_That the subject discussed in -the preceding opinions, is involved in groat difficulties, admits of no doubt.. I submit to the consideration of the reader, whether the phraseology of a part of the first constitution, will give any aid in removing them. The clause I refer to, is in the following words: “ All laws now in force in the state of Virginia, See. shall be in force, until they shall be altered or repealed by the legislature.” I Litt. 31. The question Í would propose, is not, what efféct shall be given to the word, altered; but whether-arey effect shall be given-to it. Every lawyer will see the consequences, and I may add, the difficulties, which will result, in a vast number of oases, from giving it any effect.</p> <p>By the act of 1792, the Virginia law on this subject was certainly altered, though less materially than it washy the act of 1796. In the latter act, the word or, is substituted in place of and; consequently, although before the piffesage of that act, viz. by the acts of 1748 and 1792, execution could not go into another county, unless a man removed both himself and his effects, yet now, under the act of 1796', a removal of either, gives the plaintiff that privilege.</p> <p>, Admitting the act of 1796 to be the only law in foroe on the subject, it is hoped the following queries will show the necessity of legislative interference: 1. Must a man remove ail his effects, before he is liable under it, or will the removal of a part subject him ? 2. If the removal of a part will subject him, what part will be sufficient? 3. If he is not subjected until be shall removo the whole, and this is know» to be the law, will any man ever remove the whole ? 4. What will be the effect on purchasers, as well as parties, if it shall appear, ex post fado, at any indefinite period of time, that an execution had issued to another county, when no fact existed which could justify the measure ?</p> <p>Although I have referred to the first constitution in this ease, because the act of 1796 was passed under it, it may not be improper to observe, that the same questions, as to other lavys, may arise under our present constitution. Vide 1 Litt. p. 51,</p>

<p>This case was decided at the Fall Term 1823, and was suspended on a petition for re-hearing. On the 9th of June 1824, the following opinion was pronounced. The Reporter relies on the manifest inutility of publishing the former opinion and petition for re-hearing, as a justification for not doing it.</p> <p>A judgment joint note, entered by ^esn-TuIar*1 numbm^lmid to be a judg-Fent against both, the previous part of' the order and other circumstances manifesting that the entry in the singular was’á cleri-ca* mistake,</p> <p>Wilere one of; two partners removes him-g®de’s the jurisdiction of the t°ons’mayCgo to other counties, the boüfhaVra-movc¿ ^</p>

<p> From the Nicholas Circuit Court. </p>

<p>D-pjn the Hardin Circuit Court, the Hon. Paul L Booker sole Judge.</p>

<p> From the Warren Circuit Court. </p>

<p>On rules to show cause, &c.</p>

<p>This opinion was delivered on the 19th day of December 1822; but was suspended, on the application of ope or both the parties, and for that reason was not published in the 2d yolume. Afterwards, the case was compromised;’ but the Reporter has learned, since he commenced the publication of this yolume, that the compromise utas not produced by any doubt expressed or felt by the court, as to the correctness of the doctrine contained in the opinion; that they are still satisfied with it, and consider it as a case which ought to fae: published.</p> <p>names of the 4 power of attorney au-thorising the attorney to sign the í1^ renewal ¿^tion0™" note, will not justify chang-J^th^endor-sers, so as to subject them g°J^n^ties~ tj,an they were subjccf-ed. *° °n thti oriSina no e'</p> <p>A note other-w® the letter of attorney, & not theprinoifa].-</p> <p>2 Litt. Rep. ;74. ’</p>