Volume 16 — Kentucky Reports

A Bill in Chancery to compel the specific performance of an award. The arbitrators had awarded that the complainant should convey a tract of land.

<p>Variance between the declaration and the writing offered in evidence, held fatal.</p>

<p> From the Bardstown District Court. </p>

<p> From the General Court. </p>

<p> From the Mercer County Court. </p> <p>THIS, the Reporter believes, is the only case where an attempt has been made, in this state, to carry into effect the law of 1779 as to rectifying mistakes in original surveys. See 2 Dig. 719.</p> <p>A transcript of the record will exhibit the case more fully and satisfactorily than any statement which he can make.</p> <p>“ At a county court held for Mercer county, at the court-house, on Tuesday the 27th day of March, 1798, John Cowan petitioned the court to rectify certain mistakes in the bounds of his land, whereon he then resided, and Ann Harrod, guardian of Margaret Harrod, heir of James Harrod, deceased, opposed the said petition; and the said Cowan, in its support, introduced James Thompson, Esq. as a witness; but the court refused to hear his testimony: Whereupon the said Cowan, by his attorney, exhibited his bill of exceptions in the words and figures following, to wit:</p> <p>“ Mercer County Court, March, 1798—This day John Cowan, who had filed a petition, and proved advertisement and notice to Ann Harrod, guardian of Margaret Harrod, heir of James Harrod, deceased, for the purpose of rectifying certain mistakes in the bounds of his land, whereon he lived, in Mercer county, to wit, that one part of the line, extending east and west, between his land and that of said Harrod, had not been run by the surveyor who first surveyed the land; but that the surveyor had begun the survey in the middle of said division line, and having run round to the east corner, called for the whole line, without having run so much of it as would close the survey from the last corner to the place of beginning; and the surveyor having, by a former order of said court herein, returned his survey as annexed hereto, the said John Cowan offered to produce and examine James Thompson, Esq. as a witness, who first surveyed the land; offering to prove by him, that it was agreed between said Cowan and Harrod, that a line extending east and west, and to be fifty poles from said Cowan’s then dwelling cabin, (marked by the name of his improvement, in the annexed plat,) should be the established line of division between them; and that he, the said Thompson, in presence of said Cowan and said James Harrod, did measure fifty poles from said Cowan’s cabin to the place where the lowest tree now stands, and called for in the annexed plat, and from thence (agreeable to the contract between said Cowan and Harrod,) and in presence of both, did run west, and corner at the three sugar trees, where the patent purports the beginning to be; and having measured and marked the lines round to the letter B. in the annexed plat, called for the beginning without having measured the line from B. to A. or having measured or marked the line from B. to a. To which testimony the said Ann Harrod, guardian, &c. objected, for that the court ought not to admit parol proof in such a case, because, from the face of the title papers, it was apparent that the four corners of said Cowan had been made by the surveyor, and a straight line from those corners was not required by said Cowan; but a new line and corner was required by said Cowan. And the said John then and there insisted that the court should admit the proof and continue the line A. a. east to b. being the division line agreed on; but the court refused to admit the evidence, and repelled the petition of said Cowan; whereto he excepted, and prayed the court to set their seals thereto, and that the same be entered of record.</p> <p>Samuel Ewing, [Seal.]</p> <p>Garret Darland, [Seal.]</p> <p>D. Kox, [Seal.]</p> <p>John Rochester, [Seal.]</p> <p>“ And prayed an appeal to the court of appeals; which was granted him upon his entering into bond with Samuel Taylor, George Caldwell or Joseph H. Daveiss, or either of them, his securities, as the law directs.”</p> <p> </p> <p>Explanation.</p> <p>In the annexed plan A. B. C. D. represent John Cowan’s survey, according to patent, the corners containing or having trees mentioned in the original grant. The line A. a. 247 poles, a marked line as far as not cleared ground, terminating at a black locust in John Cowan’s lane, which locust is N. 2 W. 50 poles distant from his improvement, marked O. From B. three linns, (two of which are down,) N. 2 W. 14 poles, to a linn, buckeye and elm at b. a corner that ranges with the aforesaid line A. a. or is in the same course, but appears to be an open line, as no marked trees could be discovered; that is, the line from B. to b. 14 poles, is no where marked, that appears, nor the linns, buckeye and elm before mentioned, are not marked; as also the open line aforesaid, that is, from the said linns, buckeye and elm to the black locust in John Cowan’s lane, appears no where to have any marked trees. The line B. C. is 62 poles, E. corner to Col. Harrod, a fallen sugar tree, and the line c. d. his line running from John Cowan’s survey, &c. Note—The line A. a. and b. is N. 88 E. and is at right angles to the line A. D. and B. C. March 24th, 1793.</p> <p>A copy—Teste, John Thomas, S. M. C.</p> <p>Cowan’s patent was dated June 1st, 1782.</p>

<p>A person discharged from a prosecution for felony, without a trial on the merits, cannot, in an action for malicious prosecution, require proof of probable cause, until he shows express malice.</p>

<p> From the Lexington District Court. </p>

<p>Where auditors in chancery exceed their powers, and return an award instead of a report, no decree ought to be entered on it; and if one is entered, it will be reversed by the court of appeals, without inquiry into the merits.</p>

<p>A writ, in this country, is part of the record, without oyer having been craved of it.</p>

<p>From the Lincoln Quarter Session Court.</p>

<p> From the Franklin Quarter Session Court. </p>

<p>Issue joined, that the heirs of B. are of full age; proof that any one is a minor, defeats the affirmant, notwithstanding a number of them are of age.</p>

<p>The answer of one defendant in chancery not evidence against another, and why.</p> <p>In a suit in chancery brought against a consignee, if in his answer he states that he sold the articles at a specified price, “according to the instructions of the complainants, which he files with his answer,” but in fact files no such instructions, his answer will be evidence merely that he sold at such a price, but not that he was instructed to do so; and he will be answerable for the average price of such articles, at the market at which he sold, at the time of sale.</p> <p>A receipt exhibited with an answer in chancery, as part of it, ought to be received without further proof, unless there is some evidence of forgery or fraud.</p>

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

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

<p>It is error in an inferior court whose judgment has been reversed and new proceedings directed, to proceed without an official document from the court of appeals, warranting it.</p>

<p>What proof is requisite, of the death of a citizen, party in a suit, who is alleged to have died in a remote part of the world.</p>

<p>Under what circumstances a donation of lands, in consideration of natural affection, will be enforced by a decree in equity</p> <p>Admissions of an adversary’s right, when that right depends as much on matters of law as of fact, will not prejudice the party making them.</p>

<p>Where a sheriff is commissioned to supply the vacancy occasioned by the former sheriff's failing to give the bonds required by law, the commission ought to be special.</p>

<p>The court of appeals may award a certiorari for their own satisfaction, without either party's applying for it; and may, if need be, have the original records brought before them.</p>

<p> From the Boone County Court. </p>

From the Fayette Circuit Court. THE appellants had been non-resident defendants in the court below. The proceeding was a chancery attachment; but no property of theirs was found in the state, nor was any process served on them. They, however, answered the bill voluntarily on the merits; a decree was rendered against them, from which they appealed. The great effort of their counsel, was, to show that the inferior court had no jurisdiction of the cause.

<p>A joint certificate to two actual settlers, for 800 acres of land, to include their improvements, is legal.</p>

<p>Where the plaintiff in a fieri facias dies after it has been levied, the process of execution does not abate; but a venditioni exponas may issue.</p>

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

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

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

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

<p>Where an entry appears to have been interlined after it was made, and there is no evidence that the party claiming under it had any agency in the alteration, the words interlined will be struck out, but the proprietor will have the full benefit of the entry as it was made.</p> <p>Where a man had a private, unauthorised survey of some actual notoriety, & a legal claim entered, but not surveyed, lying in the same region, a call in another entry, to adjoin his land, indefinitely, will attach itself to the legal claim.</p>

<p>In 1780, P. contracted to “make a deed for 500 acres of land, as soon as I get my warrant laid;" oral evidence that he then had a 1000 acre pre-emption warrant; that the intention of the parties was, that the 500 acres should be conveyed out of it, and a decree for a conveyance.</p> <p>When a man brings suit to recover part of a tract of land, which he claims by contract from the defendant, if he thinks any part of the tract interfered with, or insecure, or that he has a right to have it laid off in a particular way, he ought to allege these matters in his bill, and have them investigated in the progress of the cause.</p> <p>It is too late to suggest such matters by way of objection to the report of the commissioners appointed to lay off his land; and in dividing the tract and decreeing on the division, neither the commissioners nor the court can attend to any fact which was not in issue between the parties.</p>

<p>A contract of compromise cannot be set aside, on the ground that one of the parties was mistaken in the law of the case, unless it appears that the other party was in some way instrumental in producing such mistake.</p> <p>A widow agreed with the devisees of her deceased husband, to relinquish her right of dower in his estate for 1,400 acres of land and certain personal property: the devisees believed at the time that her dower right was one half of the estate, personal and real, absolutely; but as she never had asserted such claim, nor made any specific demand, & did not appear to have known what the opinions of the devisees were as to the extent of her right, the specific execution of the contract was decreed.</p> <p>A person covenanting to make a sure and true right of fee-simple is bound to execute a deed with general warranty.</p> <p>Note.—It has been said, that this case is overruled by the case of Bullitt vs. Ralston and Sebastian, 3 Bibb 261; but in that case the Bullitts did claim more than their right, viz. the amount of the bills, when, from the negligence of the holder, they were entitled to nothing; and under the apprehension of that claim, was the compromise made. Here, the widow claimed her dower, and nothing more, and to the whole of that she was entitled.</p>

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

<p> From the Jefferson County Court. </p>

<p>On a covenant to deliver two slaves between 8 & 10 years of age, the value of two such turned of 8 years of age, with interest, is the measure of damages.</p>

<p>The vender of the tract of land falsely stating to the vendees that he had given considerably more for it than he actually had, is not, per any cause, either for vacating the contract or abating the price which the vendees had contracted to give.</p>

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

<p> From the General Court. </p>

<p>Failing to state in a declaration whether the assignment of the note sued on was made by writing or parol, is matter for special demurrer only.</p>

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

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

<p>One wrongfully dispossessed of his goods, may retake them wherever he can find them.</p> <p>The recaption must not be in a riotous or forcible manner.</p> <p>A possessor of property may lawfully repel by force, a forcible attempt to divest his possession.</p> <p>If A. attempts to retake his goods by force, B. resists the recaption, and in the affray A. wounds B. a civil suit will lie against A. for the battery. In such case it is not material whether A. or B. had the better claim to the property.</p> <p>Upon “ not guilty,” with leave to give the special matter in evidence, in trespass, assault and battery, any thing which amounted to a justification might be given in evidence; but circumstances not amounting to a legal justification, could not be thereby permitted to be given in evidence.</p>

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

<p>An adm’r defendant ought not, more than other defendants, to be permitted to file additional pleas, without showing that the justice of the case required it, and his negligence of fraud was not the cause why they were not filed in time.</p>

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

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

<p>After an appearance and answering to a charge of bastardy in the county court, no exceptions can be taken to the insufficiency of the warrant.</p> <p>The proceedings under this act of assembly are not in the nature of a criminal prosecution, nor is the object of the law to protect the county from the probable or possible expence of maintaining the bastard child as a pauper; they are for the benefit of the mother.</p> <p>A judgment for costs, in favor of the mother, is proper, and is consistent with the spirit of the law, although the act is silent as to costs.</p> <p>Hardin 184.</p> <p>1 Bibb 116.</p>

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

<p>A man can maintain no action on account of an unauthorised act, or breach of trust, unless he can show that he has been deprived of a benefit, or sustained an injury in consequence of it.</p>

<p>Upon an appeal from a Judgment on a Recognizance, from the Nicholas Circuit Court.</p>

<p>The court of appeals cannot punish, by attachment for contempt, a clerk of an inferior court, for sending up, in the first instance, an imperfect copy of the record of a cause in which an appeal is prayed; because the court has not cognizance of the case at the time the offence is committed.</p>

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

<p>To support an action for malicious prosecution, want of probable cause & malice must have combined in the prosecution.</p>

<p>The prosecutor of a recognizance to keep the peace, is not liable to costs</p>

<p>The son-in-law of a deceased vender of land will be presumed to know, as well as a vendee of the vendee, whether the legal title was in the vender or not.</p> <p>Consequently, the assertion by such vendee, in contracting with the son-in-law for the sale of such land to him, that the legal title was in the father-in-law, will not be considered as made with a design to deceive, or as having produced any deception in fact.</p> <p>Generally, a purchaser of land cannot be compelled to part with his money for a doubtful title; but where the purchaser himself is bound by contract to procure, as agent for the vender, a good title, he cannot avail himself of this principle, without showing that he has used proper exertions to effectuate that object.</p> <p>NOTE—A petition for re-hearing was presented, a re-hearing granted, and the cause again argued; but, at the Spring Term 1811, the foregoing opinion was confirmed.</p>

<p>Where a bond is given for the conveyance of land to a plurality of persons, in such divisions as they shall agree on, the presumption is, that all the obligees are equally interested.</p> <p>Although a court of equity cannot, under our statute of frauds, decree the specific execution of a parol contract for the division of land; yet, where such a contract has been made, acquiesced in for a number of years, and valuable improvements made on faith of it, a court ought, in a suit brought to have partition, to consider such contract as evidence of the equity & equality of the division sought.</p> <p>Where a man in whom the record shows the legal title is not, is decreed to execute a deed of conveyance without warranty, it is no cause for reversing the decree, if it appears that he had any right which in equity he was bound to transfer.</p>

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

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

<p> From the Fayette County Court. </p>

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

<p> From the General Court. </p>

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

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

<p>An executor is not chargeable with the devastavit of his co-executor.</p> <p>If the property of the testator in the hands of one of the executors passes by his death into the hands of his administrators, the surviving executors may sue for and recover it.</p> <p>But if the executor sells the property, and thereby makes himself liable to the estate for the price of it, neither he in his lifetime, nor his adm’rs after his death, can be made liable, either in law or equity, to the surviving executors; because the right of action vests in the creditors and legatees of the testator.</p>

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

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

<p>Cases in which the obligee in a bond for the conveyance of land can and cannot be compelled by the obligor to accept a conveyance nunc pro tunc in lieu of the damages which he has recovered for breach of the contract.</p> <p>The obligor must show that the breach of contract did not proceed from any neglect on his part, & that he is, at the time of filing his bill, able and willing to convey.</p>

<p>Where no place is appointed for the payment of property, a tender to the obligee at his own place of residence, is not a legal tender.</p> <p>The principle decided in the case of Chambers vs. Winn, is no longer to be questioned.</p>

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

<p>An agreement to give a bond for 1,000 acres of land, which the covenantor holds on Abel Westfall, and stating, “which land is to be conveyed by assignment of the plat, or deed of conveyance, clear of expence,” is a covenant to convey the land, as well as to pay the expence of conveyance.</p> <p>Such a covenant will not be fulfilled by the assignment of the bond, altho’ it does not appear that there was any difficulty in obtaining a deed under such assignment.</p> <p>Matter showing a reason for not performing a covenant, is inadmissible under the plea of covenants performed, because it negatives, instead of supporting the issue.</p>

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

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

<p> From the General Court. </p>

<p>In certifying a transcript of a record from a sister state, it is not necessary that the clerk, in his certificate, should state that it is full of complete; if it appears, on examination, to contain the whole history of the suit, from its commencement to its termination, it is sufficient.</p> <p>It is not necessary that the president or presiding judge should give himself such title in his certificate.; if the record shows he was so, it is sufficient.</p>

<p>Where, in a contract for the sale of land, there is a stipulation on the part of the vender, to repay the purchase money with interest, in case the vendee shall be evicted from the whole or any part of the land, an eviction from part of it furnishes no ground for setting aside the contract; because the appropriate remedy is pointed out by the contract itself.</p> <p>Nor would the circumstance that suit had then been brought for a small part of the land, (& that part afterwards recovered,) which fact was known to the vender, and concealed from the vendee, justify a decree rescinding the contract.</p> <p>A man's not denying an assertion made in his presence to his prejudice, shall not be taken as evidence of its truth, if the circumstances under which it was made, furnish evidence of reasonable motives for his silence, if it was false.</p> <p>On a bill brought by the vendee of land to procure a rescision of the contract, on the ground of fraud committed by the vender, it is erroneous to decree a specific execution of the contract, although the bill does not contain prayer for relief generally.</p>

<p>Action for freedom, under the law of Virginia respecting the importation of slaves, and under the act of Pennsylvania.</p> <p>Several persons ought not to join in an action to try their right to freedom; but if they do, the error is not such as will justify the court of appeals in affirming a judgment against them, erroneous in matter of substantial right.</p> <p>Where the proceedings of the plaintiff are so erroneous that a judgment, if in his favor, could not be plead in bar of another suit, the court of appeals will affirm a judgment of the inferior court against him, however erroneous it may be in the particular point decided.</p> <p>In other cases the proper course seems to be, a reversal of the erroneous judgment of the inferior court against the plaintiff’s right, with a direction to dismiss his suit, for his own irregularity.</p>

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

<p>A covenant may be declared on according to its operation in law, or set forth in hæc verba, at the election of the party.</p> <p>But in a plea, the operation of the covenant or deed must be expressly averred.</p>

<p>A party has a right to introduce evidence of all material facts, in the order he pleases, and cannot be directed by the opposite party, or by the court, what facts he shall prove first.</p> <p>Note.—Vide, in the case of Eastburn vs. Stephens, page 82 ante, an exception to this rule, and perhaps other exceptions may exist. In its application to this particular case, the position is unquestionably correct; and as a general rule, can have but few exceptions.</p>

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

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

<p>Slander: “Bond is a thief, and has stolen corn;" plea, actio non, &c. because he saith the plaintiff is a thief, and this he is ready to verify. Plea insufficient.</p> <p>A plea of justification in slander ought to confess the speaking of words, & allege the plaintiff to be guilty of a felony of that species mentioned in the declaration, and specify the nature of it.</p> <p>Under a plea of not guilty, it is improper to admit evidence conducing to prove a justification, either in chief, in mitigation of damages, or by way of repelling illegal evidence given by the plaintiff.</p>

<p>In a declaration on a covenant to go with the covenantee to a certain place, it is necessary to aver that the covenantee was himself ready to go.</p> <p>Wherever a concurrent act is necessary on the part of the plaintiff, he ought to aver his performance or readiness to perform.</p> <p>The want of such averment is sufficient ground for affirming a judgment in favor of the defendant, although it shall have been rendered on an insufficient plea</p>

<p>As slaves may pass without deed, the seller cannot be compelled to execute any writing evidencing the sale, unless he expressly agrees so to do.</p>

<p>One deputy sheriff may covenant with another deputy of the same sheriff, to perform a part of the official duties which the other has undertaken; & on failure will be liable to an action on his covenant.</p>

<p>Courts of law and equity have concur rent jurisdiction of fraud.</p> <p>Special matter offered by way of plea in an action at law, and rejected, does not bar the defendant of relief in equity.</p>

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

<p>It is error to issue executions on a judgment, after permitting more than a year to elapse between the rendition of judgment and issuing execution.</p> <p>Motions to quash executions erroneously issued are not bar red after five years.</p>

<p>A constable not justified in making distress clerk’s fees for services performed in the same year.</p>

<p>If an order made by a judge in vacation bears date on Sunday, it is, for that reason, void.</p> <p>Note.—It is due to the memory of the Judge who made to this order to state, that in fact it was not made on Sunday; the mistake was in stating the day of the month wrong.</p>

<p>In connected transactions and accounts, if the one party is out of the statute of limitations the other party is also.</p> <p>A receipt in full of all accounts, cannot be opposed, either in law or equity, to a debt then due by bond; but the party holding such receipt may show, by oral testimony, that on the settlement on which it was given the bond was extinguished.</p> <p>Any advances by the obligor to the obligee, of money or property, which cannot be shown to have been paid in discharge of the bond, will come within the operation of the act of limitations.</p>

<p>An execution on a replevin bond, to be strictly formal, ought to issue for the penalty, to be discharged by the sum mentioned in the condition; but if it issues on the condition only, it is substantially correct, & will be supported.</p>

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

<p>Declaration to recover the amount of a forged bank note passed as genuine, adjudged sufficient.</p> <p>Although the testimony does not prove the promise exactly as laid in the declared action, yet if it proves facts from which the jury may rationally infer such promise, it is sufficient.</p> <p>In an action to recover the amount of a forged bank note, which has been returned to the defendant, it is not necessary to give notice to him to produce it on the trial.</p> <p>An inconsiderable excess of damages, no ground for awarding a new trial in an action of assumpsit.</p>

<p>A constable resigning after prosecution commenced for his removal from office, is liable for the costs of the prosecution.</p> <p>The presence of a majority of the justices is not necessary to give a judgment for costs.</p>

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

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

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

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

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

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

<p>Ten per cent. damages not to be awarded on dissolving an injunction to proceeding under a deed of trust without suit.</p>

<p>Where a writ of error is brought on a judgment overruling a motion to quash an execution, as variant from the decree, the decree itself must be a part of the record.</p> <p>Showing that there is no decree which would justify the execution, will not be sufficient.</p> <p>Even showing that the plaintiff in the motion, against whom the execution issued, was not a party in the suit, will not to be sufficient, as that would be merely showing that the decree, if such an one existed, was erroneous; not showing that such an one did not exist in fact.</p>

<p>As a court of chancery may adjust accounts, however complex, without the intervention of auditors, it is not error to rescind an order appointing auditors, although no cause is or can be shown for so doing.</p>

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

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

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

<p>Wherever a statute directs a thing to be done, without prescribing the manner in which it shall be done, it must be done according to the common law mode.</p> <p>It is doubtful whether the common law required that any of the grand jurors should sign the endorsement on an indictment, or the finding by a petit jury, and believed an endorsement, without being signed by a foreman or otherwise, was sufficient in either case.</p> <p>It is doubtful whether the act of 1794 respecting grand juries, repealed the common law on the subject.</p> <p>It seems that the repealing clause in that act ought to be confined to laws relating to the qualifications of the jurors, and the mode of summoning & organizing them.</p> <p>Note.—The Reporter is apprised that the principal point directly decided in this case, cannot occur again, (vide 1 Dig. p. 419,) but has retained it on account of the extensive influence of the general principles laid down.</p>

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

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

<p>In an action of assumpsit for labor done & performed as a mill-wright, under a special contract, held that evidence showing the work to have been done so badly, that the plaintiff was entitled to nothing for it, was admissible.</p> <p>But it seems that if the plaintiff was entitled to recover any thing for his labor, the defectiveness of it was improper matter of defence inasmuch as it furnished a legitimate cause of action in behalf of the defendant against the plaintiff.</p>

<p>There can be no implied or presumed agreement, where there is an express one, contrary to what the law would otherwise imply.</p> <p>On a bill brought to subject the assignor of a forged bond, on the implied responsibility, no decree can be rendered, if it shall appear that the complainant took the bond without recourse.</p> <p>In a case brought on that ground, evidence that the assignor knew of the forgery at the time of the assignment, is improper, and if receive, will not authorise a decree.</p> <p>In such case a bill ought be framed so as to put the fraud in issue, & ought to pray a rescision of the contract.</p> <p>Courts of original jurisdiction have an extensive discretion in permitting answers in chancery to be amended; and the court of appeals will not control them in the exercise of it, except in cases where it has certainly been abused.</p>

<p>A confession of error were no erro exists, is not evidence of fraud.</p> <p>A man cannot be said to be guilty of a fraud, when neither his actions nor his motives are illegal.</p>

<p>Where a man’s right is made, by contract, to depend on the payment of a sum of money within a particular time, a positive declaration of the payee, made within the time, that he will not receive it, will excuse the payor from making a formal tender.</p>

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

<p>Where a pl’ff. sues on a bill of exchange, and there is an endorsement on it, purporting to transfer the bill to some other person, the endorsement will be presumed, prima facie, to be genuine.</p> <p>But the court cannot assume the fact that it is genuine, and thereupon instruct the jury to find for defendant.</p>

<p> From the General Court. </p>

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

<p>A deed of gift cannot be set aside on a bill brought by the donor against the donee, however void it may be as to creditors.</p>

<p> From the General Court. </p>

<p>Where the sheriff takes the estate of an intestate, under the order of the county court, there being no executor nor administrator, he is to be credited for all sums paid under the orders of the court, whether the estate was properly chargeable with such sums or not.</p>

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

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

<p>It is not necessary that the order of the county court binding out an apprentice, under the act of assembly respecting poor orphans, should state the reason or ground of their proceeding.</p>

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

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

<p>A plea of set-off need not specify any particular sum; and if it does, the party is not bound to prove that precise sum.</p>

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

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

<p>A general demurrer to a declaration ougth not to be sustained, if the declaration contains a single good count.</p> <p>Consequently a motion to reinstate a general demurrer to a declaration, on the ground that amendments had not been made, according to a former order of the court, ought not to prevail if the declaration then contains one good count.</p> <p> A declaration for an "undertaking that the tobacco was good and sound," is not supported by a representation, made about the time of entering into the contract, that the tobacco was of a good quality; for there is a difference between a mere representation as to quality, & a promise or undertaking. </p>

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

<p>An entry depending on a call “to begin where the Salt-Lick trace, that goes by the Flat-Lick, crosses Hinkston’s fork,” is not rendered uncertain by the existence of another trace & lick bearing the same names, the latter lick being equally applicable to either trace; the first particularly distinguishing the trace called for.</p>

<p>When money is deposited with one man for the use of another, the cause of action accrues to him who is to receive it, from the time of the deposit, and from that will the act of limitations commence running.</p>

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

<p>The necessity of stating in the declaration the date of the writing sued on.</p> <p>The court cannot take judicial notice of the writing sued on, unless oyer has been taken of it.</p>

<p>A purchaser of an execution for a valuable consideration, and such purchaser only, can object to payment’s being made to the plaintiff.</p> <p>The assignment of an execution by an attorney in fact, having merely a naked authority to do any thing in the suit in the name of the plaintiff, is no evidence that the assignee is a purchaser for a valuable consideration.</p>

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

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

<p>An entry for land held invalid.</p> <p>Where an entry describes the land as lying on "the Turkey-Foot fork, or South fork of Eagle creek," it is to be construed as a call for the Turkey-Foot fork generally, and not for the junction of the 3 forks forming what is called the Turkey-Foot.</p>

<p>An appeal from a decree of the Bourbon Circuit Court, pronounced at the May term 1820. The Circuit Judge is not named anywhere in the record.</p>

<p>A decree for land, directing the defendant to convey it by a particular day, is final, and may be appealed from, whether a conveyance be made or not.</p> <p>Rescinding an order appointing a commissioner to convey, does not open the decree; nor does keeping the cause on the docket, waiting for the defendant to execute the deed.</p> <p>No appeal or writ of error will lie from the decision of the court on an attachment to enforce the execution of a deed decreed to be executed.</p>

<p>Appeal from a decree of the Fayette Circuit Court, pronounced August 8th, 1818. The Circuit Judge not named.</p>

<p>A sheriff who has sold land under execution may lawfully execute a deed of conveyance therefor, notwithstanding his term of service shall have expired, and another sheriff have qualified and entered on the duties of his office.</p> <p>Where the subsequent sheriff conveys under the act of Feb. 1809, the receipt or certificate of the former sheriff, of actual purchase and payment must be produced.</p> <p>It is doubtful whether that act embraces sales made after its passage.</p>

<p>The covenants on the part of the plaintiff were the consideration of the covenants on the part of the defendant and both were to be performed on the same day: Held that the plaintiff could not recover, without showing a performance or a readiness to perform the covenants on his part.</p> <p>An example of evidence from which the jury would not be justifiable in finding either a performance or readiness to perform.</p>

<p>Appeal from a judgment of the Montgomery Circuit Court, the Hon. E. Shortridge sole Judge.</p>

<p> Appeal from a judgment of the Christian Circuit Court, the Hon. B. Shackleford sole Judge. </p>

<p>From the Wayne Circuit Court, the Hon. Thomas Montgomery sole Judge.</p>

<p>Parol notice to a tenant, to quit the premises, is as good as notice in writing.</p> <p>Such notice is not required, unless the relation of lessor and lessee is subsisting between the person who is to give, and the person who is to receive it, and the lease is to expire on an uncertain event, or at an indefinite time.</p> <p>It seems, that were such notice is required, a notice to leave the possession immediately, or without stating any definite time, is insufficient, and that it ought to be given six months before the end of the year, to quit at the end of the year.</p> <p>On application to introduce a witness after the testimony is closed & the argument commenced, it is necessary, not only to show a sufficient excuse for not having introduced him before, but to show that his testimony would probably produce a verdict different from what it would otherwise be.</p>

<p>If a plea which contains matter in abatement only, concludes in bar, it will be bad, & final judgment will be rendered for the plaintiff,</p> <p>A plea which commences in bar, though it contains only matter in abatement, & concludes in abatement, is bad, and final judgment will be rendered for the plaintiff.</p> <p>Pleas in abatement are not embraced by the provisions of the act of January 30, 1811, 1 Dig. 262.</p> <p>1 Dig. 262.</p>

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

<p> From the Clark Circuit Court. The Circuit Judge not named. </p>

<p>A lien is a special right in that of which another has the general property.</p> <p>A lien can exist only in those cases where the person having the absolute dominion of the thing has so far voluntarily parted with his right,or it has been taken from him without his consent.</p> <p>The occupying claimant act of 1797, gave the occupant no specific lien on the land for the value of his ameliorations; the remedy given was personal.</p> <p>Independent of that act, the bona fide occupant could claim no lien in consideration of ameliorations. If the proprietor should sue in equity, to recover the land, the occupant could demand pay for his ameliorations, prior to his surrendering possession not because he had a lien, but because he who demands equity must do equity.</p>

<p>From the Floyd Circuit Court, the Hon. E. Shortridge sole Judge.</p>

<p>Although the proprietors of legal estates may lie by & permit a purchaser to be deceived, by expending his money in a purchase, and afterwards assert their claim, yet the holder of a bare equity hardly ever can.</p> <p>Where it appears that a defendant in chancery is bound in equity to convey land by deed with warranty against himself and those claiming under him, he cannot avoid such decree by showing that, prior to the commencement of the suit, he had sold and completely conveyed the same land to another person.</p> <p>On that fact appearing, the complainant may, if he pleases, make the prior grantee a defendant; but the law does not require it, nor can the defendant compel him so to do; he may take a decree for a deed, & proceed against the defendant on the warranty of that deed.</p>

<p>From the Mason Circuit Court, the Hon. Adam Beatty sole Judge.</p>

<p> From the Greenup Circuit Court. The Circuit Judge not named. </p>

<p>From the Montgomery Circuit Court, the Hon. John Trimble sole Judge.</p>

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

<p>Jurisdiction of the general court.</p> <p>A non-resident of Kentucky cannot, in that court, sue a resident, unless he is also a citizen of Kentucky.</p> <p>The act of 1799 was framed on the presumption & admission that there might be residents of Kentucky who were not citizens, & courts, are bound to attend to this distinction, in adjudicating on the act.</p> <p>An allegation in a bill in chancery, that the “defendant had left Kentucky, and it was said, did not intend returning, which the compl’t. believed to be true,” is not a sufficient allegation of non-residence to support the jurisdiction of the general court.</p> <p>Nothing short of a positive allegation that he is a non-resident, will suffice.</p> <p>Answering the bill without taking any exceptions for want of jurisdiction, preparing the cause for trial, and going into a full trial on the merits, will not estop the defendant in such case from assigning the want of jurisdiction as error, in the court of appeals.</p> <p>In a case of this kind, the express consent of the parties cannot give the general court jurisdiction; therefore, it cannot take jurisdiction from any implied consent.</p> <p>The general court cannot acquire jurisdiction by consent of parties, except where both parties are citizens or residents of the state of Kentucky.</p> <p>Where that court has not jurisdiction, it can render no judgment for costs.</p>

<p>From the General Court, the Hon. John Trimble and Thomas Montgomery Judges.</p>

<p>It is a settled rule of chancery practice, neither to permit several complainants to demand by one bill several matters perfectly distinct & unconnected, against one defendant, nor one complainant to demand several matters of distinct natures against several defendants.</p> <p>Where a vendee of land has been let into possession, and the contract of sale has been rescinded on account of misrepresentations made by the vender and his inability to make a good title, the vendee cannot be compelled to pay rent, beyond the profits actually received.</p> <p>In such case, an inquiry how much the premises would have been reasonably worth, annually, to a man of ordinary industry and diligence, is alike unnecessary and irrelevant.</p> <p>In such case, the vendee will be entitled to pay for the improvements made by him, when the premises go out of his hands into the hands of the vender.</p>

<p>An allegation of a transaction with an intestate in his lifetime, made in a bill against his administrator, is not to be taken as admitted, because it is not answered by the adm'r.</p> <p>An administrator, defendant to a bill filed by a distributee for his part of the estate, may tender the notes of the complainant, given to the administrator on the purchase of part of the estate of the intestate at the sale, notwithstanding there were other persons bound with him therein as his sureties, & will be allowed credit for the amount of them.</p> <p>An administrator cannot be decreed to pay costs in a suit by a distributee who had not placed him in default before suit brought.</p> <p>A complainant in chancery cannot assign for error, that the decree was final, without the proper parties, when it was his duty to bring them before the court.</p>

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

<p>A vested remainder in slaves, accruing to a woman during coverture, vests in her husband, as much as a right in possession would.</p> <p>But it seems that if the husband should die before the determination of the particular estate on which the remainder depended, it would survive to his wife.</p> <p>The act of 1798 has placed slaves, as respects the interests of husbands, on the same footing with chattels at common law.</p> <p>Slaves descend, under our act of 1798, according to the course prescribed by the act of 1785 of Virginia, uncontrolled by the act of 1790 or the 5th and 6th our act of 1796.</p> <p>It is to the act of 1785 the above mentioned act of 1798 refers by its true title; the act of 1796 bears a different title, viz. An act to reduce into one the several acts directing the course of descents.</p> <p>Where an infant dies without issue and intestate, his slaves pass in equal moieties to his collateral kindred in both lines, without any regard to the side from which his title accrued.</p> <p>Where all the relations on one side are of the half-blood, they shall nevertheless be entitled, collectively, to a moiety of the estate.</p> <p>The clause restricting the portions of the half-blood to half as much as the whole blood, must be understood to apply to the half-blood on the part of the same ancestor.</p> <p>The reference in the act of 1797, to the act directing the course of descents, applies to the act of 1786, uncontrolled by the act of 1790 of the 5th and 6th sections of the act of 1796.</p> <p>Where an infant dies intestate and without issue, his personal estate passes in equal moieties to his collateral kindred in both lines, without any regard to the side from which he acquired it.</p> <p>A contract cancelled on account of ignorance of his rights in the seller, a fraudulent concealment by the purchaser, and inadequacy of price.</p> <p>2 Dig. 1156.</p> <p>2 Dig-1155.</p> <p>1 Dig. 435.</p> <p>1 Dig. 527.</p> <p>1 Dig. 437.</p>

<p>From the Breckinridge Circuit Court, the Hon. Henry P. Broadnax sole Judge.</p>

<p>Under the act of congress, the certificate of bankruptcy is prima facie evidence of the fact of bankruptcy, and must be conclusive, where there is no evidence conducing to disprove it.</p> <p>Although the fact of bankruptcy will not bar the recovery of specific property held by a bankrupt as executor, it will bar the recovery by the distributees, of money received by him in his fiduciary character, and for which he was liable before he became a bankrupt.</p>

<p>When the facts in a common law case are, by consent of parties, submitted to the judge, instead of jury, he has the same right to judge of the credibility, and to disbelieve evidence in toto, which a jury has.</p> <p>In reviewing his decision on matters of fact in such case, the same principles apply as in reviewing the verdict of a jury, brought up to the appellate court on a motion for a new trial.</p>

<p>From the Bourbon Circuit Court, the Circuit Judge not named.</p>

<p> From the Christian Circuit Court. The Circuit Judge not named. </p>

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

<p> From the Hopkins Circuit Court, the Hon. B. Shackleford sole Judge. </p>

<p>A bill in chancery seeking to transfer the jurisdiction of a case proper for a court of law, on the ground that the material facts were known to the defendant only, ought to be accompanied with an affidavit.</p> <p>Such bill ought, on demurrer for want of such affidavit, to be dismissed absolutely, & not without prejudice.</p> <p>An absolute dismissal will not bar the prosecution of a suit at law.</p>

<p>Equity will not sustain jurisdiction in case of fraud in the sale of diseased slaves, for the purpose of giving compensation in damages for the fraud; but in those cases only where equity requires that the contract should be rescinded.</p> <p>Relief denied where, after the discovery of the disease, the purchaser made no offer to return the slave & cancel the contract, but retained him in his service until he died.</p>

<p> From the Garrard Circuit Court. The Circuit Judge not named. </p>

<p>Chancery jurisdiction.</p> <p>Judgment, on a note for money lent; bill of injunction alleging that a slave had been pledged as surety for repayment, and his hire to be in lieu of interest, and that by inhuman treatment he had sickened and died: Held, that this was not a proper subject for a bill in chancery.</p> <p>On a bill filed, charging usury, an answer that the defendant does not remember the terms on which the money was lent, will be considered as evasive, and tantamount to an admission of usury.</p> <p>But if the complainant’s bill and exhibits, taken in connexion, show that the transaction was in reality not usurious he can have no decree on this implied admission.</p>

<p>Entries held valid, and the mode of surveying directed.</p> <p>The call of the last line in an entry was, “ so far as to include Howard’s creek to its mouth, or to a line that shall be agreed on with Wm. Bush,” &c. Held, that this alternative call did not vitiate the entry, because it was not a call for any object then existing, but for one which might or might not exist thereafter, and the entry itself showed that it did not then exist.</p> <p>3 Bibb 543.</p>

<p>Where a statement of facts appeared to have been made in writing by a witness, many years before, & when called on he recognized it as his handwriting, but had no recollection of the transaction or the facts stated in the writing, held that the writing could not go in evidence to the jury.</p> <p>A written memorandum of this kind may be used by the witness, but not by the jury.</p> <p>Hearsay evidence, in what cases inadmissible.</p> <p>What authentication of a deed executed in Virginia in 1804, for land lying in Kentucky, sufficient.</p> <p>The usual mode of authenticating the acknowledgment of deeds, meant by the acts of assembly, is the annexation of the seal of the court to the clerk’s certificate of acknowledgment.</p> <p>The act of congress does not apply to this subject, even when deeds have been acknowledged in open court.</p> <p>Of the presumptions to be indulged since the burning of the records of the Fayette county court, in favor of those who acted as executors, claiming their authority from that office.</p>

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

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

<p> From the Montgomery Circuit Court. The Circuit Judge not named. </p>

<p> From the Hopkins Circuit Court. The Circuit Judge not named. </p>

<p> From the Warren Circuit Court, the Hon. Henry P. Broadnax sole Judge. </p>

<p>The loss of a negotiable note furnishes sufficient ground for resort to chancery, to recover the amount from the endorser.</p> <p>But if the note has not been negotiated at bank, it is necessary to allege in the bill all the facts legally necessary to be shown, to manifest due diligence to obtain the money from the assignor.</p> <p>The assignor ought to be made defendant to such bill.</p>

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

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

<p>From the Washington Circuit Court, the Hon. William L. Kelly sole Judge.</p>

<p>He who takes a conveyance of the legal title with notice of an outstanding equity, is in no better situation than his grantor was.</p> <p>Where a bond on its face appears to be for the conveyance of land absolutely, the obligor may, in defence of a bill for specific execution of the contract, show by parol evidence, that it was given to secure the repayment of a sum of money borrowed, & that he had a right to have the bond delivered up to him at any time, on repayment of principal and interest.</p>

<p>On a covenant to place with the covenantee a boy as an apprentice, and continue him 3 years, an action for taking away and detaining the boy, may be maintained any time within the 3 years; it is not necessary to wait until the term shall have expired.</p> <p>In such action damages may be recovered for the detention, as well as taking ; but no damages can be assessed for the detention after suit brought.</p> <p>It is erroneous to instruct the jury that they may find damages for a special consequential injury, when there is no evidence conducing to prove the existence of such an injury.</p>

<p>Where a fine is rendered certain by an act of assembly, the jury, in an indictment on the act, need not find the amount of it, merely finding the defendant guilty, is sufficient.</p> <p>A bill of exceptions taken on over ruling a motion for a new trial, ought to show that the grounds assumed were true; merely reciting the positions as assumed, without stating that they were proved or admitted, will be unavailing in the court of appeals</p> <p>An indictment on the act against permitting unlawful gaming in a man's house held sufficient</p>

<p>On a joint demise in ejectment, none can recover without proof of title in all.</p> <p>The authentication required by the act of 1811, of powers of attorney executed by nonresident femes covert, is not such as will authorise its being admitted in evidence, where other persons unite with them in constituting an attorney. Q.</p> <p>Where a man claiming under an executory contract is evicted & turned out of possession by a writ of habere facias possessionem on an adversary claim, be may purchase in such adversary claim, and assert it in defence of a suit brought by the man from whom he first purchased.</p> <p>In such case, the record of the suit by which he was evicted, and the sheriff’s return of his dispossession, are evidence of these facts, although the person from whom he purchased was no party to the suit.</p> <p>Nor will the circumstance of judgment having been obtained by default, prejudice the defendant, if it shall appear that the adversary claimant had the eldest patent, & that the land in question was included in it.</p>

<p>The return of a deputy sheriff, that a defendant is no inhabitant of his bailiwick, is not sufficient to abate the writ.</p> <p>The act of assembly requires that he should be returned no inhabitant of the county, and the whole county is not necessarily the bailiwick of a deputy sheriff.</p> <p>It seems, that such a return by a high sheriff, would be sufficient, if clear & positive.</p>

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

<p>If a man is under a moral obligation to do an act, & believes himself likewise bound by law to do it, when in reality he is not, and under a belief of his legal liability enters into a covenant to do it, he cannot avoid his covenant, on the ground of mistake as to his legal liability.</p> <p>Circumstances under which evidence may be introduced to show that a deed with special warranty was excuted under an expectation that it would, and with an intention that it should secure to the grantee the re-payment of the purchase money with interest, if the land should be lost</p> <p>Where it appears impossible that any available defence could have been made at law, a confession of judgment by one bound by covenant to defend the suit with good faith, is no breach of covenant.</p>

<p>The allegata and probata ought to corespond.</p> <p>An allegationthat rent was tobe paid on demand, is not supported by proof that it was to be paid at the end of the year.</p>

<p>Trover, for slaves; plea, statue of limitations; replication, the infancy of one of the plaintiffs, concluding with a verification; no rejoinder was filed, but the record stated that the defend’ts joined issue; verdict for the plaintiff: Held, that no judgment ought to have been rendered.</p> <p>The infancy of one plaintiff in an action of trover, will not prevent the statute from running against all.</p>

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

<p>The right of choice of a small tract of land out of a large one, held to be waived by the declarations and conduct of the party.</p> <p>Settling on a particular part of the tract, & employing a surveyor to run off his choice there, altho’ in fact it never was run off, will prevent his asserting his right of choice in a remote part of the tract, against subsequent purchasers, who know of his right of choice and of his settlement, &c.</p> <p>His advising a subsequent purchaser to purchase a part of the tract, and offering, as the agent of the proprietor of the tract, to sell it to him, will forever bar his asserting his right of choice against the purchaser, to that particular part.</p>

<p>A defendant in ejectment, claiming the land by executory contract of purchase from the plaintiff, will not be permitted to contest the plaintiff’s title ; and consequently, will not be permitted to give evidence of the existence of outstanding elder grants covering the same land.</p> <p>The acknowledgments of the defendant that he entered under such contract with the plaintiff, may be proved, without producing the contract.</p>

<p>The record stated that the continuance was set aside, but from other expressions in the same order it was manifest that it was a judgment by default which was set aside: Held, that this was a clerical misprison which might be amended at a subsequent term, & therefore was not available in error.</p> <p>Notwithstanding a plaintiff may obtain a judgment by default, at an early day of the term, in his favor; yet he is presumed to be in court by his counsel, until the end of the term; and no step afterwards taken against him will be considered ex parte.</p> <p>An informal judgment on a plea of set-off, held sufficient in substance.</p>

<p>One mercantile partner sold the whole store, and in opposition to the will of his other partner, he the purchaser broke open the store, had the goods invoiced and delivered to the purchaser; in a joint action of trespass against the selling partner and the purchaser held that the value of the goods could furnish no criterion of the measure of damages; that either partner had an unquestionable right to sell all the goods; and that, unless the goods (or some of them) had been actually destroyed, one partner could not maintain trespass against the other, for taking and detaining them.</p>

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

<p>Where justice requires that a new trial of a suit at law should be decreed in chancery, the court of chancery ought not to make a decree setting aside the verdict and judgment at law; but to decree that the defendant (the successful party at law) should submit to a new trial, and enforce the decree by injuction, attachment, and other legitimate chancery process.</p>

<p>Decree for specific performance of a contract reversed.</p> <p>Where a complainant asking a decree for specific performance has failed on his part, without excuse, a court of law can give him a compensation in damages for what he has performed, after making just allowance for the damages occasioned by his not performing what he ought to performed.</p> <p>But if a court of equity should sustain his bill, and decree a specific execution of the contract in his favor, on his paying the damages that his default had occasioned, it would be unequal and unjust, in decreeing the primary and highest relief to one, and that one the defaulting party, and merely the secondary relief to the other.</p>

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

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

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

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

<p> From the Fayette, Circuit Court. </p>

<p> From the Bourbon Circuit Crurt. </p>

<p>In cases of mutual debts, the inability of one of the parties to pay gives jurisdiction to chancery, per se.</p> <p>The proper relief in such cases, is a decree of set-off as far as one debt will extinguish the other, and a dissolution or perpetuation of the injunction, as the case may be, for the balance.</p>

<p>From the Woodford Circuit Court, the Hon. Samuel M'Kee sole Judge.</p>

<p>Where a bill relates to transactions with the ancestor of the defendants, of which they do not pretend to have any personal knowledge, & there is no ground to presume they have, the testimony of one witness is sufficient, notwithstanding the answer is in terms a positive denial of the facts.</p> <p>Where the obligor in a bond has obtained possession of it and destroyed it, it will be presumed tohave been given for a valuable consideration.</p> <p>It seems, that a bond will be presumed, in all cases, to have been given for a valuable consideration ; and notwithstanding the representatives of the obligor (not pretending to any personal knowledge of the matter) deny on oath that it was given for a valuable consideration, yet the onus probandi, that it was a voluntary bond, will lie on them.</p> <p>Where a contract is executed in one country, with a view to its performance in another, the law of the latter county furnishes the rule for determining its obligation.</p> <p>The act of 1792 authorising joint actions to be brought against personal representatives & heirs, embraces all contracts, wherever and whenever executed.</p> <p>The right of action on a joint bond to a plurality of obligees, survives in equity as well as at law.</p> <p>Where such bond is given for the conveyance of land, and a breach has been committed, by which the demand has become a pecuniary one, yet the heirs, representatives of the deceased obligee, may unite with survives,and under a prayer of general relief, may elect to take and recover the land, if it can be obtained.</p> <p>But if the land cannot be obtained, a decree for a pecuniary compensation must be rendered in favor of the survivers only.</p>

<p>An entry for land held invalid.</p> <p>Of the necessity of exhibiting the position of the claims which an entry calls to adjoin.</p> <p>Of the necessity of showing the validity of the entries on which it depends; and if it depends on surveys, of proving their actual or presumptive notoriety.</p>

<p>The fact of conspiracy to do an unlawful act, cannot be proved by the confession of one of the parties, so as to involve others.</p> <p>The rule of law which admits such evidence is predicated on the fact of combination being made out by other evidence.</p> <p>The confessions or declarations of one of the parties concerned in an unlawful act, must be part of the res gestæ, to justify their being given in evidence against the others. If made at any other time they are not evidence.</p>

<p>Any evidence conducing to support the issue, or to repel a presumption which might arise, favorable to the opposite party is admissible.</p> <p>Where the covenant is to pay rent and deliver possession, but no breach is session, but assigned in declaration as to the non-payment of rent, the jury can give no damages for that, whatever evidence may come before them as to the value of the rent.</p> <p>Where issue is joined on the plea of n o demand, evidence conducing to prove that if a demand had been made there would have been a refusal, is improper.</p>

<p> From the Bullitt County Court. </p>

<p>Distinction taken between a bond conditioned for paying a lesser sum & a penal bill.</p> <p>On a penal bill an action may be maintained for the sum really due, without any allusion to the penalty.</p> <p>The lex loci contractus regulates the rate of interest.</p> <p>The court of appeals is bound to take notice, judicially, of the laws of this state establishing counties, and of the names of the counties.</p> <p>Where a note was executed in Virginia, in 1807, & judgment on a writ of inquiry for the debt in the declaration mentioned, & one cent damages: Held, that no judgment could be rendered for interest.</p> <p>As the rate of interest, in this case, depended upon the laws of Virginia, which were matters of fact, proper to be proved before the jury on executing a writ of inquiry, the court of appeals is bound to presume that their verdict was justified by the evidence, or want of evidence, as to the rate of interest in Virginia.</p>

<p> From, the Madison Circuit Court. </p>

<p>Where, by an order of a county court, a road is removed off a man’s land, that man ought to have notice of any proceeding instituted for the purpose of rescinding such order.</p>

<p> From the Mason Circuit Court, the Hon. Adam Beatty sole Judge. </p>

<p>The declaration of a surveyor, who was also agent of one of the parties, tending to prove that, as agent, he had made and violated an agreement to execute the survey of his principal, so as not to interfere with the claim of the other party, is not evidence against his principal.</p> <p>Under the laws of Virginia, a land warrant was not extinguished by a deputy surveyor's executing a survey on the ground, and returning it to the office of the principal surveyor.</p> <p>It seems, that the authority given by the warrant continued in force until the principal surveyor had examined, approved and recorded the survey.</p> <p>Where there is attached to an entry a note of part’s being withdrawn, and that note is without date, it seems that it will be considered as bearing date with, & composing a part of the entry, operating as a diminution pro tanto, & therefore not vitiating the entry.</p> <p>Where a withdrawal takes place for a part, & the calls of the entry are such that they can be complied with in surveying the remainder, the entry will be good for such remainder.</p> <p>Where it a appears from the complainant’s own showing that there was such an adverse possession at the time he took a conveyance as to render the deed void, the defendant need not rely on it in his answer.</p> <p>If, after the execution of such void deed, & since the passage of the act of 1798 authorising conveyances in such cases, he shall have acquired the same land by descent and release from his co-heirs, his title will be valid.</p> <p>The proprietor of an equity in lands may, by making the holders of the legal title under which he claims, defendants, and manifesting a right against them, sustain a suit against an adversary claimant under a distinct original title.</p>