Volume 17 — Kentucky Reports

<p>. . Appeal, County Creditor, Sheriff.</p> <p>statement of the case,</p> <p>(1) Appeal does not lie from a judgment for costs only.</p> <p>(2) Action cannot bo maintained in the name of the Commonwealth, for the use of a county creditor, oh the sheriff’s bond for the collection of the county levj. Motion in the county court is the remedy.</p> <p>(3) No public functionary has power to confer an authority to uso the name of the Commonwealth in an action for the. benefit of an individual.</p>

<p>Error to die Boone Circuit; John Trimble', Judge.</p> <p>Assumpsit. ■’</p> <p>Case 2.</p>

<p> Private Statutes, Constitutional Law,, Preamble- </p> <p>Statement of the case.</p> <p>^ jt .g not necessary to averaprivate oí«y ' to sue; the court is ex know'1"'1 whatever is enacted by ^g^therefore’ a peii„ tion andsura-mons maJ ll0</p> <p>(2) A statute vesting the rights of ac-potion in*" commissioners, which fPPcars f™m to have been passed at the the^iock^ holders, is constitution--d^nce 3oV'S their consent,</p>

<p>Error to the Bourbon Circuit; Jamos Clark, Judge.</p> <p>Deusoje.</p> <p>Caso 4.</p>

<p>Error to the Nelson Circuit; Paul I. Booker, Judge.</p> <p>ÍVIoxtote</p> <p>Case 5.</p>

<p> Appeals to the Circuit Courts. </p> <p>[1] the judgment ota! justice a- ; ^con-m'oney col-looted & not ^atl1gr°v^’e amount exceeds five clrou</p> <p>Q^ehe' — ■ Whereaca»£ oircuit court has original peiiat°5 f¡f brought br-|ore th<;aciou’l’!: tice, ought the court to tliT arriR'J</p>

<p>Error to the Madison Circuit; dafnes Clark, Judge.</p> <p>IWliEVlif.</p> <p>Case 7.</p>

<p>Error to-the Mercer Circuit; William L, Kelly, Judge.</p> <p>Coyenakt.</p> <p>Case8.</p>

<p> Notice, Error, Restitution. </p> <p>Statement of {he case.</p> <p>(1) Want of notlpe tution, cau-not be assign-an^rder a-*” -warding it, where the ^gared'and the decision merits/</p> <p>(2) Where a writ ofpos-been° extSut-ed, ami the-judgment is reversed^the party-who ofwasdisPos-jiavea writ ofrestitutjpn.</p> <p>(3) His no bar to a writ qf restitution after reversal of judgment, that the defendant; aftér the judgment and execution of the writ of possession, had compromised his claim fur improvements, for a term in the premises, and had agreed to restore them at •the end of the lease, and was thereby ip the actual possession.</p> <p>(4) The execution of tire writ in such case, restores the seizin.</p>

<p>Executors, &c. Amendments, Error, Merger.</p> <p>Statement of the case..</p> <p>(1) Judgment against exec-nto.rs °" u“;. their testator must bo ile -FisI1^xridfiít^1"dé bonis'propriis 'ji will tor that error be ro-verse — rg.</p> <p>(2) If, pirnd-inga writ of ■error,a judg-Sly amended in the court below, the or-tod win°not" afterwards a-vailintbeap-peltate court,</p> <p>(3) „„ .» cannot, reot-ify an error-in rendei-iiig ^ ter the endof the term.</p> <p>(4) A clerical Mtering^a111 judgment, npay be a-writ' of error 6ucd out.</p> <p>(5) The on try, ofajudgmeut “Lj? ought to be de bonis tes-clerical prisión,'‘and.</p> <p>(6) The deed conveyingland'is'oPiL ofgreaterdigni-therefore»., they do pót merSeinit;</p> <p>(7) A covenant contained in an a-greement for Ince^of °a” tract of land, to pay for ja^oiVcc? ¿iif tyfisndt'pcr-formed1 by thelarfo^dc-scribing it to contain, that ¿¡^notin’faci contain..it. '</p> <p>[8] Interest, from what ^ comT)u^dbe</p>

<p>Error to the Fayette Circuit; Jesse Bledsoe, Juige.</p> <p>fciMNCEM-.</p> <p>Gasp II.</p>

<p>ice, Executors, Assignors, Parties, Prpcess, Revivor.</p> <p>statement of the case,</p> <p>[1] A person not named the pleadings is not made a lín'^his añ s’vfr styling himself heir3 „"a<,erson maneiuTde-but summon-aoatbhadnot been suggast-cd-</p> <p>[2] Executors are necessary parties to a bill for a dissolution of the contract of the testator, and repayment of the purchase money.</p> <p>[3] Assignors are necessary parties to a 'bill by an as-signee, on an assignment made before it. was au-thorised by the statute.</p> <p>[4] A written nowledgment of the service of a subpoena in chancery must be proved.</p> <p>[5] A chancery suit can bo revived by bill only, except whore the defend’t dies after filing his answer.</p>

<p>Evidence, Witness, Constitutional Law, Assignments.</p> <p>statement of case,</p> <p>[1] Where it is shown by 01 tha/th/sub-scribing wit-the only wit-Besses to their hand-writing gb.fteUano-ther is com-' petent to I>rove ll'</p> <p>[2] Assignor, of ¡m obiiga-tion when release,b provuits «xecutionf</p> <p>[3] Statute making obii-cuted,y ns-signable, is constitution-a</p> <p>[4] The ,ute of assign-n!ent>rS ,re' to'tíie oblLa-tions made transferable; a8°io°theV assign men tsau-tiiorispcl bjf it.</p>

<p>Slaves, Descent, Will, Devise, Co-Tenants,</p> <p>Statement of tlle case-</p> <p>TJie</p> <p>Opinion of the circuit “l11*"</p> <p>(1) Slaves in. Virginia in ^10^’0®^777* talo, ami de-spen’d&d ty tho eUc°t “</p> <p>(f^vriie act of the colour-al -kegisla-1748*' slaves personal estate, ne-becauÜTne-ver'received the royal as-son(:'</p> <p>^nostali> may pass 3 * without ex-if there be a1 necessary im-location,</p> <p>^ fa> ther devises, thero' n^s^on "lie shall have a certain prop-that&tbsres»--idueofhises-tato, be e-ed between^'" der and his daughter Eh; if there be no ch'ild andUE. die, the wife to have the for°life^re- 6 mainder over to others; # wife uAiave* half his personal estate; a ous^soa is born and E. lives: Held, the*wife each tako a móiety of the residue of the tatekffee?</p> <p>(5) Slaves deviscTunder the general appellation estateS°unless a different intention be indicated.</p> <p>(6) A'devise of the whole of certain property fdr life on one contingency, and in another event half the property, without more saying; in the latter case, the fee passes..</p> <p>(7) One co, tenant cannot maintain an action against another, for the. recovery of the possession of a slave.</p>

<p>Evidence> Conveyances, Consideration.</p> <p>Statement the case. f</p> <p>The deed.</p> <p>(l) A. deed oí c°'weyan6e, edandre-corded according to evidence. without fur-^execution</p> <p>(2) The lcs-Il.avin-5 denoe a deed conveying t<4 him all the ¡.rantor in'6 Kentucky, not bci|ore prioIYonvey-from tim perron's °ontrovers ia the defen-<lant, may be biBl-</p> <p>pj phe words “give, a",d ^ compro-™ hensive as t]catl convey the iegaUitle.-</p> <p>[4] A covenant to perform personal services for the grantor, is a valuable consideration, and sufficient to support a deed of bargain and sale.</p>

<p>Indented Servants, Assignment of Indentures, Equity.</p> <p>Statement of the case.</p> <p>(t) An indenture by a ^r ™o f" ser^ vico, cxecu-ted instate Sufficient’ consideration and in due „.ai 0y¡ga_ tion of servi-thlf; coun '</p> <p>denture of service may aato^trans-fer tbo term, by observing |!*p® (,a by statute; but tf those be °k^rÍC<^ vighl does not pass.</p> <p>(3) Tho oMi-gation given tLn^fiina-'10 greement tó assign the tenn of m-wants, is not •affeotod, bo-cause in the niafcePthe° transfer in s'red10^6 t\°o assTo-nec/ the servants were liberated.</p>

<p>Error to tlio Franklin Circuit; Jesse Bledsoe, Judge.</p> <p>Debí1.</p> <p>Case 17.</p>

<p>Error to the Greenup Circuit; Silas W. Robbins, Judge.</p> <p>jIotio.v.</p> <p>^ase</p>

<p> Verdict, Co-Tenants, Evidence. </p> <p>.. the case. ’</p> <p>A general verdict in forcible entry and detainer, •where the defendant is guilty as to part of the, premises mentioned in the warrant, is good.</p> <p>Evidence by the dei'end’t in forcible entry and de-tainer, of an equitable title in himself to the promises, is palpably inadmissible.</p>

<p>Error to the Lawrence Circuit; Silas W. Robbins, Jud¿e.</p> <p>Trover and Conversion</p> <p>Case 20.</p>

<p>Assignor and Assignee of Judgments, Parlies.</p> <p>Can the as-signee of a judgment "have a subsequent entry on record-, of satisfaction made by consent of the debtor and assignor, set aside, on motion, at a subsequent term, without proof of express notice of the assignment to the debtor, and that it was for valuable consideration 1 Qumre.</p> <p>To a motion for this purpose, the assignor is a necessary party, and must have notice.</p>

<p>Appeal from the Jefferson Circuit; John P. Oldham, Judge.</p> <p>Chancert.</p> <p>Case 22.</p>

<p>Action, Assumpsit, Covenant, Assignor and Assignee.</p> <p>Statement of the case.</p> <p>The imiten agreement,</p> <p>j I] An agreement in writ-ins by several noto,1 topay1 each their equal parts, port sumpsítby the first en-afterwards° paid the whole sum to Covenant is the remedy.</p> <p>[2] The ex-eeptions to nruit will.lie, no other acT oases^where6 there is a liability, indo-pendent of -_Argu.eUim</p> <p>^0ísel.'s „r a" promissory note,who nJcausc of action against a sub-doraer^-Tm</p> <p>[4] Where one joint eiw ?romissov1 thewhole an(j t[ie „10„ n?ycannot be piado by suit out ot the obligor, the other en-'jorsRrs m“y £ coTuibíite their por-— Argu.</p>

<p>Parlies, Femes Covert, Attorney, Conveyances, Evidence.</p> <p>Statement of ihe case.</p> <p>The par-tins toa bill ^the elder** grant, on the ground of the superior fnciuile'a'l'f concerned In the fee.</p> <p>M Femes covert could not make at-tomeys to inthUstate, priorto the act of 1012.</p> <p>They, when conccmed in the fee, are parties'in a billon an entry for a re-muse oi art adversary grant.</p> <p>(3) The deed of afemeco-7ort’ Proved a courtin Virginia, wiihoutprivy ^insufficient to convey Ifn<1 in tlu3 atate'</p> <p>bill maybe dismissed absolutely, p0rQpernnr-í' ties; but always without J^resu'ufor the same cause, with yP^per*,ar'</p> <p>(5) To súp-port a title derived by Ser°alcorce purporting to '^FanTde3 viséos^of the foi-mcr oivn■er, it is ñecos-that oh076 persons were '-in,fact the</p>

<p>Error to the fienry Circuit; Henry Davidge, Judgo.</p> <p>Forcible Entry and Detainer.</p> <p>Case 25.</p>

<p> Insolvent Debtors'1 Estate, Sheriff, Sergeant. </p> <p>Statement oí the ease.</p> <p>(1) The estate in posses-' sion of a debt- or arrested by a ca. sa. ' from the general court & discharged under the insolvent laws, does not vest in the sergeant, but in the sheriffs o'f the several counties where it is situated.</p> <p>(2) The choses in action of an insolvent debt- or discharged from imprisonment by -a ca. sa. from the general court, vest in the sheriffs. The proceeding to recover them must be. in the name of the sheriff of the county where the. deblor of the insolvent resides, not in the sergeant’s name.</p>

<p>Error to the Estill Circuit; James Clark, Judge.</p> <p>Assumpsit.</p> <p>Case 27.</p>

<p>Error to the Jefferson County Court.</p> <p>Motion.</p> <p>Case 28.</p>

<p>Error to the Montgomery County Court-</p> <p>Motion.</p> <p>Case 29.</p>

<p>Error to the Jefferson Circuit; John P. Oldham, Judge.</p> <p>Chancery,.,</p> <p>Case 30.</p>

<p>Error to the Fayette Circuit; Jesse Bledsoe, Judgtí.</p> <p>Chancery.</p> <p>Caso 31.</p>

<p> Parties, Guardian ad litem. </p> <p>Decree for complainants reversed, because some of the defend5 ts. alleged to have an interest in the property in contest, were neither summoned nor appeared, & because there was no order of court appointing guardian ad litem, the person who answered for iúfants.</p>

<p>Appeal from the Shelby Circuit; Henry Davidg'e, Judgl</p> <p>Chancery.</p> <p>Case 33.</p>

<p>Appeals to the Circuit Courts, Pleading, Evidence.</p> <p>statement of focase,</p> <p>pi a in tiff in the warrant to file a declaration containing matter not (l") In an an-peal from ¿ justice to the circuit court, regularlo permit the oognriabieby the justice— Arsu-</p> <p>But adcolar-tuinirwa!*' cause of action of which the justice^ tion,maybe" filed, subject to the control ovírcisín"""».! sound discre-bon.</p> <p>(2) Nil debet tion inasara' sumpsit, is ill on. demurrer,</p> <p>(3) Where the contract is written, possession of the writing e>'rovo tho^1' terms ol^the contract, nor chango the writing-by4'0 parol ovi-dencu.</p>

<p>Appeal from the Bourbon Circuit; Jantes Clark, Judge.</p> <p>Ejectment.</p> <p>Case 35.</p>

<p>Evidence, Locators, Customs..</p> <p>Statement oí case-</p> <p>The written contract.</p> <p>The bill.</p> <p>The answers,</p> <p>The decree of the circuit court.</p> <p>Query as to the parol ev- ‘ enc®'</p> <p>of the land as locator’s obH^tion^ a person employed by the locate them to; to a third person, who ó'S'ion, it is* necessary to aY°r a™1 the'owner authorized or ratified the oontract‘</p> <p>custom of the coun-l^aktouUhc oase.</p>

<p>Evidence, Partnership Books, Practice.</p> <p>statement of case,</p> <p>(l) Where the allega* t~a ^ shown bal-anco in favor ofthd dord-tyhUsnoiX' necessary to appoint Buttiid bilí may be dismissed, tho’ have'waved an account,</p> <p>K urili er the rase"10Í"</p> <p>(f) The booksofa partnership, ■io the inspection of each ^f'nlbe5 tweeTtbem".</p> <p>(3) Where, on the heating of a bill for an account between partners, there is great obscurity in the proofs, the chancellor ought not to pronounce a final decree; but should appoint commissioners, with power to take explanatory evidence, and to put interrogatories to the parties on. oath.</p>

<p>jm¡ices^ Constitutional Law, Officers rife fo.cto, Mandamus></p> <p>the case. statement o'f</p> <p>Return of flic county court to the man-damns nisi.</p> <p>Governor has appointed’ one of the commended the coun.ty court, he ^ thórised to ita on that re-oommena^ uoa;-</p> <p>(2) Alii appointment, within the Meaning of the constitution, is completed when the commission is made out, signed by the Governor and transmitted to the person appointed.</p> <p>(3) The ac* ceptance of thin ^dutinc* fronf the appointment, & ggSS^.Iset completion. *</p> <p>uoLtmentTof <0. who had been recommended by court with L. after h. had ecPand^had" refused to accept,was un-constitution-A'</p> <p>(o) A person Monally'com-missioned a justice of the officer’defac-to, and his acts are valid “ rs“'</p> <p>(6) Where it tae return to a mandamus nisi, for ad-stratfoaT an office, that the appoint-mentwasun-constitutional, a peremptory mandamus should hot be aWarded. [i'</p>

<p>Practice■, Assignor and Assignee, Pleading by Defendant, "Evidence.</p> <p>When a spe-is teHn aftet.a • general issue pleaded, the ^discretion* either to per-it to be anc¿* „£]e”°ts the record proves this have^been6 improperly exercised, cr-ot s</p> <p>The right of ,tIlc assiSMt; gainstthe asj signor, rests on re% fhc^efend’t* as assignor; therefore any Í7hich tends to disprove that vespon-admissible”1* under the general issue;</p> <p>Fviaon that the as-signee had Slven tlle o!lv under an agreement t0 receive ciseTn lieu of performance; and had refused to acance^of^the obligation itself, on the duo l inad-miss’íble urial issue.</p>

<p>Error to the Hardin Circuit; Paúi I. Booker, Judge.</p> <p>Chancery.</p> <p>Case 40.</p>

<p> Protest, Bills of Exchange, Damages, Interest, Costs. </p> <p>Statement of the case.</p> <p>ostentiaUo a recovery ob. foreign bills, jn their rank.,</p> <p>(2) A notary public is the top^btos?^ reign bills of exchange, ^herethcre is no notary, itmay be p^Yanfper-son,in presence of two. Wlt!iesses-</p> <p>,g, It jsn0 ohmotion ' where a ”olntc!d"«ua by the ' Bank of Ken-, is protested by a private person in presence of witnesses, that such person was a stockholder; it is sufficient that the witnesses were disinterested.</p> <p>(4) It is not necessary for the witnesses to a protest by ^ private per-: son, to subscribe their names. Where the protest is drawn up a few hours after the demand, the necessity of noting the bill at the 1110-jnent, is superseded.</p> <p>f5] The court may assess damages and lessen or set aside a verdict in covenant, for enormous damages, wnore the instrument itself points out a certain criterion ;therefore, it naay be a court might, in such oase, increase the damages-.. Argu.</p> <p>[6] Endorse-“"ís on m-n0teS 0f tbe grade of fog^^raced by thestat-° uteconcern-ing interest; court may* ° in an astio’n ofdebt a-gjve judg1-meat for in-^ominnl'0’ damages had been assessed b7 a JWT-</p> <p>pn-Tate persomThave no right to charge for • bill of ex- * change; therefore, in ^bilfofex^ change so protested, it to give judgment for the t°sstts oipro~</p> <p>(g) Costs,</p>

<p>Executions,. Void and Voidable, Sheriffs, Sales of Land.</p> <p>Statement the case. ^</p> <p>(1) An execution irregularly issued to another county, is not void, but voidable only ; therefore, a sale of land made under -it, is valid.</p> <p>(2) It is a general ru^e.» a^oflTcefcaa justify under »n execution-, the titieTo a chattel in-terest, by a to^nss^ the title to* lands, there F??®4 ^e a 1 ®mun '</p> <p>(3) cases cited in jhave heen held valid, not-1 yvithsta-nding-^ect and plaintiff.</p> <p>[4] There being oases in which an execution may go out of the county where the judgment was rendered, When a sheriff receives an execution from another county, it is not his duty’ to enquire whether the case existed which authorized it to issue or not; but he is to presume it regular and proceed to execute it.</p> <p>sKves^vxif fjministra-. tor, though Wadcfi~11ood asV'the purchaser — Arg.</p> <p>quashing an execution er-roneonsly is-the? county; .will net invalidate a sale of land made under it.</p>

<p>ErroiLand 'Lilies, Disclaimer, Release, Statutes.</p> <p>statement óí the case,</p> <p>Decree of the circuit court,</p> <p>0f ett0¿ embraces on-jy cannot imaf signed in a subsequent</p> <p>(&) The person in po4es-siori óflnud, le*aMitlphe "may,bybiíiin equity, have retpasoóftho title set up by an adversary íes-í'ho in Ms answer disclaims and otters to re-Qnere, as lo the construetion of.the caso!Umt'1S</p> <p>(3) In the answer of the aL'biU 'by the holder of the legal title in iuruWbr a re-éase of an adversary olmm, it _!s to disclaim; there must be release1' or it will'1 be decreed. So is the statute.</p>

<p>Error to the Jefferson Circuit; John P. Oldham, Judge-.</p> <p>Covenant.</p> <p>Case 44.</p>

<p> Demurrer, Pleading by Defendant, Statutes. </p> <p>statement of the case.</p> <p>}y!icre there; eve raí61 picas,if either foe'good,judg-for"h™defcn° dant.</p> <p>Plea that the assumpsit charged in the declaration was made without any consideration, is now good</p> <p>fbnee madein a^lea is™ vailable on the general "ood obiec-a lion at common law, qn murrer</p> <p>Since our - ^ensin0’ wkh fonníifpl'ead-ing, any mat-the actiotíarS may be spe-daily pleaded, tho’ good al issue!</p>

<p>Appeal from the Montgomery Circuit; Silas W. Tyobbins, Judge</p> <p>Beet.</p> <p>Case 46.</p>

<p>Fraudulent Conveyances,'! Answers, Creditors, Parties, Practice.</p> <p>The first question stated."</p> <p>(X) A deed to trustees, not creditors, convoying all the grantor’s estate for payment of his debts, _ without request or subsequent consent of the oiwiiiors, is sldoration.011"</p> <p>rat'cannot nf-toiwanli ob jeot;butcou-docs not'"if-ffiet the others.</p> <p>-a considoratioil of five shit-lin-is, p,ml by in a dood of trust, is nn-derstood to and'dcK^'not protect it saiust chasers l>m"</p> <p>(3) A credit- or whoso 1 mast liavepids-1 h meutand ex-edition before he can maintain a bill to sot asi lo a fraudulent deed.</p> <p>(4) A credit- or who has a fraudulent deed properly set aside for thosnlis-fuctisnofotis demand,can-ítaiíotlíer*0 purely fegai, and of which-ob'y at™* law.</p> <p>CO Are the olILSw der a deed of trust> neces- ^ set it aside í'cmicl'í</p> <p>^ ^editor-jn a deed of trust are not. sary parties to a bill to set ^sir^e-doesnot appear from the bilb th;|t oosaary^ar-6"' tins'omitted, itcan be la-' J*j°"1 by plea or an-swerdisclos-ir's,the-names 011 the ob¡oe-Won.1</p>

<p>Error to the Franklin1 Circuit; Henry Davidge, Judge.</p> <p>Debt.</p> <p>Case 48.</p>

<p> Parties, Practice. </p>

<p>Error to the Nicholas Circuit; John Trimble, Judge.</p> <p>Covenant.</p> <p>Cass 50.</p>

<p>Appeal from the Henry Circuit; Henry Davidge, Judge.</p> <p>Petition & Summons.</p> <p>Case 51.</p>

<p>Error to the Franklin Circuit; Henry Davidge, Judge.</p> <p>AgS.U UPSIT.</p> <p>Case 51.</p>

<p> Specific Execution, Covenants for Land, Practice, </p> <p>statement oí' the base,</p> <p>(1) The cow enanfor to convey land, is bound to convey to his covenantee only, not to another to whom the latter sells a part.</p> <p>If the cov-enantor to convey, combine with his covenantee, and convey him different land, to the prejudice of the covenan-tee of the latter, the chancellor will, on the bill of this third person, compel the first to convey to the second, and the second to complainant.</p> <p>(2) Where the complainant shows himself entitled to the convey- . anee of land from one defendant, but to what land and how much, is uncertain, and on the position of the" land depends the relief sought against another defendant, the chan-ceilor ought not to dismiss the hill as to either, but order a survey or appoint a commissioner.</p> <p>(3) Where land is to be conveyed upon the payment of money, the chancellor cannot direct the transaction to bo biít^fraustbe sctUfvl under the eye of the sjourt.</p>

<p>Appeal from the Greenup Circuit; Adam Beaty, Judge.</p> <p>Forcible Detainer.</p> <p>Case 54.</p>

<p>Error to the Payette Circuit; William Warren, Judge.</p> <p>Covenant.</p> <p>Cts6 55</p>

<p>Appeal from the Trigg Circuit; Benjamin Shackleford, judge.</p> <p>Assault k Battery.</p> <p>Case 56.</p>

<p> Error, Decrees interlocutory and final, Absent Defendants. </p> <p>Allegations of the bill,</p> <p>Women Pope’s an- ^ same day’ withthe bill,</p> <p>íioaüoif a-b" gainst David .Ross and E. Price.</p> <p>ontodon°Xe" Worden and Win. Pope, Advertise-order of mb lication lfor ci^htweeks,</p> <p>Decree for sale of the laud & costs, íernTiSlO.</p> <p>commissioners returned ea, conven-anees direct-^^*1®*^* execution awarded for oi February 21, 1811.</p> <p>Petition for aecreef by° non-resident defendants, * February’ 14,</p> <p>Demurrpr t0 bill filed and overruled, & S1™" tsmii to' an„ swer.</p> <p>Guardian ad litem appointed for one of the absent defendants, and his answer admitted.</p> <p>Answer of the other defendants offered, sworn to by agént, rejected.</p> <p>'Answers admitted, aud new decree.</p> <p>(1) Where an ancient decree has been improperly opened in the circuit court, it cannot be questioned in this court, by the party who opened it, nor can lie have the benefit of the subsequent decree.</p> <p>(2) A decree ascertaining the compl’ts. demand, directing a sale and ordering the payment of costs, is final, and from its date the 7 years allowed absent defendants to answer, is to be computed, and not from the orders confirming the sale, and directing .«id ti'Tconvey-anee. These onU Je-i^oxjcutioii’ 0f wbat had been before</p> <p>^ty on the face of a <le<-fondant, is no cim<e foro-P^nng it and answS^ error or a’bill oí review is the</p> <p>the order of pub-Hcation was “í í ^ ertfset i T is ,10 G¡m«e for opening a do-^gj^efen-«‘hints, & pér-nutting their 0Xpjrea.</p> <p>(5) Quere— t!l®fter absent <le-femlant has petitioned to ere”, filed his demurrer and it; lms bren. ymeVTfife^ the answer, which will not exPire untij after the rfc^iZilf be complete.</p>

<p> Entries, Geography, History, Blue-Liclcs. </p> <p>'Statement of tile case.</p> <p>(1) The purchaser of a From°the^rju-nior paten-tec, is not an^advorae^ possession of the residue, dor natsnt01" talreu suhse-quent to his conveyance.</p> <p>ores, held valid. J°Iia f)ur-„f ot; a-^ , ’ - - -</p> <p>Linn, Barbour’&.Wil-Hams’ entry-of. b°00aci'e3-</p> <p>(g) The ‘ Big-Blue-Lick oil kicking,’ isa cription ofS ‘ Upper Licking,’ J^ere being °</p> <p>rpbe <L0Wfir Blue-Licks,’ do ™°" ” Upper Blue-Lick,’ for the call ¡¶. this entry for the ‘ Big Blue-Lick,’ without evidence in the record.</p> <p>The Lower Blae-Licks have been held ge.ogra^ phieally notorious, but not sq early as 17ti0.</p> <p>If the court, from general geography & history, held the Lower Blue Licks notorious in 1780, they would notice the number, situation and perhaps sizeof the spring & conclude that the place did not -is well Suit ihe call for the 1 dig Blue Lick,’, as the ‘Upper Biui IjÍCK.’</p> <p>(3) The party opposing an entry ought to show 'hut the object he sets up as the rival, suits the call e-qunlly as well as that claimed by the owner of the entry.</p> <p>(4/The entry of .jiiia, &e. psight be held valid at tiie I^o-yvor Bluer Hicks, or l>e oertTir/Vml* yet be a/.ii-cd to the up-ji^e'bp’-in-n^nu. of lfur-ham’s entry, there/11 ^</p> <p>(5) The call foJ 5,® entry jjinn & j0hn Williams,isa sufficient call william 7 j.inn, James Harbour and j^s (he circum-' stances of th*3 case"</p> <p>fC) Tho call from tho beginning, ‘thence down tho north side of said creek, & binding on the same,’ shows the beginning was intended to be or; the stream.</p>

<p>Appeal from the Jefforson Circuit; John P. Oldham, Ju<Jg&.</p> <p>«HANCERjr.</p> <p>Case 59.</p>

<p>Attachments, Void and Voidable, Sheriffs.</p> <p>Statement of the case.</p> <p>The bond of the sheriff, & its oonc ilion.</p> <p>First assign-wont of breach*</p> <p>Theotheras-ágnments of breaches,</p> <p>Demurrer ie declaration,</p> <p>(1) Attach-msnts for loss fin fh'an SO Jars (since the act in-creasin'; the jurisdiction of justices to that sum) returnable to the circuit court, are merely void.</p> <p>The f-rii rire of'the* deputy to ^I-n ovoid6" attachment is no broach of the condi-sheriff's bond</p> <p>(3) The fail-in-o of the over ^money^ collected on void process, breach of the condition of his princi-íond official</p> <p>The plain tit? in the process “the°deputy,asm»ney received, in capacity,1 for his (plain-use“</p>

<p>Sheriff's Securities, Motions, Parties, Statutes.</p> <p>statement oí the case.</p> <p>curitiesof a* sheriff, for &°n"ot pajrt over, must be joint part only,"”</p>

<p>Error to the Nicholas Circuit; John Trimble, Juds;e.</p> <p>Chancery.</p> <p>Case 62.</p>

<p>Interest, Judgment, Trustees.</p> <p>Statement of the caso.</p> <p>- ( ; °®mrs re"</p> <p>41) Interest cannot be allowed by the chancellor on lowed by the a judgment for damages not secured , , y a pena y.</p> <p>(2) Stipula-’ tionbyatru*-peníítionTor his services ’ includes ail ^ethcrcéT’ tain or contingent; but cxcludes a tíon for^ir-, sonalser-</p> <p>(3) A trustee titlfdt'o oom-pensafion for Ilis expences, ^mana*11 mentófthe business of trusT'whe'ther stipulated for or not;</p>

<p>Appeal from the Montgomery Circuit; Silas W. Robbins, Judge.</p> <p>Chakcerv.</p> <p>Case 64.</p>

<p>Cross appeals from a decree of the Bourbon Circuit; James Clark, . Judge;</p> <p>Chancery.</p> <p>Case 65.</p>

<p>Error to the Nelson Circuit; Paul I. Booker, Juctgs.</p> <p>Chancerv.</p> <p>Case 6 .</p>

<p>Occupants at Common Law, Units, Waste, Compensation for Improvements.</p> <p>Statement of tbe case,</p> <p>Commission-provemenis, vents, waste,</p> <p>Commission-0rs> rcr>oa. ”</p> <p>(t) One who enters upon land without the assent ' and against the will of the owner, or ■with knowledge of his claim, and thathemearit to assert it, is hound for routs on all tho improvement», even those made hy himself,after entry,, and if allowed for improvements at all, can only set them off against the rent (Common law)— Argu.</p> <p>(2) Where the occupant is a bona fide purchaser from the possessor, with the knowledge of the holder of the title, and so enters, without being forbidden, and his possession is long acquiesced in, and there is con-sidorable d.e-in^the^He” aguimt him, ho is bound menc«ment,:' ofsuit.</p> <p>(3) Theoccti--caso* isenti-tled’to compensation for mcni™Pand°' whether at their value whenmade,. istodat com-, mencement bi'mnd’for rCints upon them, from ¿.'1cJ.g3'tteii BUteqUer(, of his right to recover,for nmp'tsbejond rents.</p> <p>HJiioduc-P...USC of land in a bg$tihmUikc £1!Wlieri ^ by rentlaw0</p> <p>Charge 0<Hr> 00m-missioriers’ ^ taken for improper,noj. ordinary use, edin addi>-W" tionto rents, (Common law.).</p>

<p>Appeals from the Christian Circuit; Benjamin Shackleford, Judge,.</p> <p>„ Chancery.</p> <p>Case 08.</p>

<p>Error to the Logan Circuit; Henry P. Broadnax, Judgé;</p> <p>Ejectment</p> <p>Case 69.</p>

<p>Oyer, Writs, Demurrer, Abatement, Statutes, Practice, Misnomer, Corporations, Bank of Kentucky, By-Laws,. Cashier, Pleading, Equity, Evidence</p> <p>oJ* case."</p> <p>(1) Theprop-e[ f1.0*1® of . cr, is,nby§°y prayer enter-et on record, opposite party may coun-terplead, and decision of¶6 the court, whether oyer o/not — Ar^ °</p> <p>When the pa-inte^ffstate-merit in the demurrer _ craveifand given, to which no .objection jrp-clent ■ and aftor decision, the ca=e oyerhadheen regularly ob-taiued.</p> <p>1 Ancient_ .ly, iu Eng-l.nd, oyer could be era-ori-luitl writ at any siato, and a vari-fuiiid Uu'86” declaration, could bo ta-ta'kfi^foUlior in arrest of judgment or o.q error.-Ar.</p> <p>(3)1n mod-Knflwid'op-cris refused of either the and there can. bo there, no for the variance— '</p> <p>uo ori. ginal writ. J*]le pUrpo8es of the original and mesne binceTand™' necessarily composes %***£{ with* O.utoyer. Therefore, it not error to refuse it.</p> <p>[^batemeat for variance between the jHtbe spirit of the act limit-jpg dilatory^ pibas and see-cial dernm--¿¡rsuín/ap. pointed for the trial, and, therefore, cannot after-™*bere-</p> <p>a demurrer is first datefhoS suit was set far trial, tho’ there be a va-munoo h»_ it will bo ta-treated^as in bap, riance between the ■writ and declaration, and that insisted on in abatement,</p> <p>[7] In an ac-°r" potation, a variance between the name in the writ and declaration, is no cause of demurver, but of plea in abatement.</p> <p>onf'be'es-011 tablWed by ‘ Ara;u [8.1 In this state, as cor-legislative act, all of which (he courts must know, they may be bound to know, judicial!}’, the names of all so created.—</p> <p>[9] In Eng-lamí, corpo-rati«-is -were by private ^mntífrom the^rown™ were not Íuílicia% itnown; hence ¿asno-mor iñ their cases had to Arfm^"</p> <p>[10] Corporations f/reivbytho crown of England, bo-í°¡i? therey0" still exist in Kentucky.—</p> <p>cor porationsof" our sister en* in0ur court's; —Argu.</p> <p>L12] Ascot-. P<;r.a*10ns which the courts cannot judicially their names, may sue in °".r courts, a canncrtbe reached by demurrer,but J^g^ied</p> <p>f" 13J If the court,in this casc,judi-that^the well j£nown Bank of Kentucky, incorporated bythelawsof plaintiff they would notice that it was called by its lull name in the do- and^rirl had been'lei't out in the Arsü-</p> <p>[14] For thb omission in njV’ in the corporate Bank of Kentucky, it might, ifta-kenm proper time and mode, be abated; hut full mime, the action cannot be murrer.</p> <p>ri5l ybond to the presi-dentanddi-pariy) of the BankofKon-tucky, is not acüonumy11 be maintained upon it in full name, by thedeoiam-tjon,.that it was executed corP°-</p> <p>[i6] Thcgen-eral rule that -in unaSf tívécovenaúi fortheper-formanceofa Writhe &S" breach in the worth of the Úpplie™ kÚáh action on a bond condi-fÚithihí'dJ-110 charge of the duties of a ÚÚníc01' °fa ‘</p> <p>• • e °" mission to set out the bylaws of the ^híohüiodé-fendant cov-enantedto wMchtheand broachcharg-eshe did not comP]y with, objection or not, cannot generaf de-° murrer, there being other Is assigned*</p> <p>^,8, a corporation, in pursuance Úcquirinú^thc bonds «fits «¡fleers to ¡h¡ ^"od^witU aproviso iu the ordinance t!ef-U shan not impair the obligation of any ' protions ^ bond, until given up to be cancelled, first, with rom i ion or time, that its conditions iormoir'until the second boiul was de-liverud. takes a second bond, without can-celling the first, it cannot be pleaded in an action on the first, with roml tlie discharge efthe duties ol’ the office, without saying for what</p> <p>An obligee maytakeany number ofab-ligations persons to se-curo the same demand; and unless one is accepted in accord and satisfaction of the rose, and perhaps even then, .all re-maininforce,</p> <p>subsequent bond is taken fojthe sams pior°one,Sa with a decía-ralion that tioVof the' first sha]]'not bo thereby extensive as if the other noi-becn d Pn‘</p> <p>(19) Quore— not _ inffimt1" by hilt in^sqyity, TC'icooml to contribute to Pa.v the coveredfor" breaches dm-. ing the exis-tonco oí both.</p> <p>a cashier and bis securities, bondiSc°ondial tionefl for the, faithful dis'charge of his dence.thathe. in his j^aracta-1 a draftonThe bank and anr cepted it for the bank, as cashier and sold.it for the money,and that it was to^bi^hjihe purchaser, with request hisPcroditl<is inadmissible, Cashiers in Kentucky^ had not poiver, ex officio, to accept the bank.</p> <p>theBank°ofh Kentucky h.id power to uepi oni»L, powertac»n-fer authority deal in bills of exchange; yet whether-power to accept or not, on its cashiers to do so or not, to prove the ' bank liable tange <Kone" of them, it must b.e shown he was tmtborizod to make it.</p> <p>biuiifhqk no (22) Evidence that the n.ishi»r secreted bills 'in which the interest., or t^í^own3111 USe, isinad-missibfo. (^¿¡]]^]„° as tvhicli the • corporation an water-</p> <p>Whnro the cashier applies to his callinr-ib”1* money or aot^s °!1 1!3e Wa« bound to par money, he is £ci¡ln ™n'™3 bond, for the-fill nominal to f)10”r " the netos on ^,(j3nu^s,‘ dopi-ocliiie,' in value, Kr' funds,</p> <p>4) Admis-sionoftbc cashier nH.is funds of the bank, made oontinnauce in office, and receipt }£ ^bank'for*' money not brought into its accounts, is admissible in an action against him and his securities, on his official bond.</p> <p>(25) A cashier holds his ■office at all times and places, and by misapplying funds delivered to bim for the bank, out of business hours and remote from the banking-house, violates the condition of his official bond, to faithfully discharge the duties of his office. '</p> <p>(26) The bank was not liable for an omission to have a negotiable note deposited by another bank protested for nonpayment and notices given, though it was import ant to fis the endorsers, unless the costs of protest had been deposited, it appearing an ordinance oí the bank required it.</p> <p>3*4 & Mary, in the 7°ars l55’'-'3-</p> <p>iTT4.</p> <p>The omission, of the words,. ‘ and company,’ in a bond to the President, Directors Sc Company of, the Bank of Kentucky, is not fatal.</p> <p>Gases where* in a false name for a corporation l>as been held fgtal to the instrument, (which was the fact, in all those cited in the petition,) are. not. analogous to that wherein the. name is right as far as it geos, & there is an oniission of part.</p> <p>Where corporations have avoided their grants, because. not made, by the. body entitled, to grant, (which was also the fact in all the. oases cited by the appellants’ counsel,) the grounds for the avoidance must have been, that the grantors wete* not those an-ae”1 — Ar*0</p> <p>Bond corporation, not by a false ndttfng'"part of the corpo¡•ate name, ported "by "a-verment/ The ends of ioUer an-P swored' by placing in-which*cot*o rations°are0' not correctly named, on with which they were ex-eluted & de-A^ootñora-"”* tion may re-eeive the deeayo° what is equivalaut.</p>

<p>Appeal from the Clark Circuit; James Clark, Judge.</p> <p>Chancery.</p> <p>Case 71.</p>

<p>Krror to the Perry Circuit; Joseph Eve, Judge.</p> <p>Ciiakcerv.</p> <p>Case 72.</p>

<p> Affidavit. Statutes, another Action pending, Abatement. </p> <p>Statement of the oase.</p> <p>Plea in abatement maybe-verified by affidavit of any other, as well a%the defendant-.</p> <p>in an action against one of several obli-gors, plea that there is another action pending against all the obligors, for the same cause, will a*, bate the ac-' tion.</p>

<p> Equity J'urisdislton, Evidence, Set-effm Equity. </p> <p>statement of the case,</p> <p>Allegations ófthfe bill.</p> <p>Answers,</p> <p>Publication ?Aain3t' 1,0 s<3‘</p> <p>Beoree 0f circuit court-,</p> <p>■(1) It is no ground tor the injunction ol'ajudg-moot in as-•:-':unpsit, that the promise recovered upon, had been performed before the action at law was nom-inen end, but the defence ■was excluded by technical rules.</p> <p>(3) There must he a connexion between the demands, or some extra-neon» circumstance, to authorize a set-oiF in e-Eiuily.</p> <p>(3) Publication against ono deiun-(Taut, is evi-(lonoc against the others that he-is ont of l,ho oomi-try.</p> <p>Insolvency or hon-re.n-denco of the partios a gainst whom ill e sol-oiF is prayed, is, in the general, sufficient to authorize it.</p> <p>Bilt where ialnst'wMoh the set-off is prayed, has appear'the insolvency or rhe'-tet cum'd before the assign-menC</p>

<p>Appeal from the Union Circuit; Alney M’Lenn, Judge.</p> <p>Troveii mid Cokveksioa-</p> <p>Case 75.</p>

<p> Guardian and Ward% Pleading, Joinder of Relators. </p> <p>In an action on a guardian’s bond, (he relators stand as real plaintiffs, and unless their interest be such that they could unite as plaintiffs, they cannot join.</p> <p>Quere — Can an action bo maintained on the joint bond of the guardian of several wards, at the relation of them all, or must they each bring separate suits 1</p> <p>Heirs of the ward cannot, as relators, maintain an aotion on the bond of the guardian; it must bo in the name of the personal representatives.</p>

<p>Evidence, Presumptions, Consideration, Contracts, Public Policy, Government, Possession, Notice.</p> <p>Extract from the first stitutiou.</p> <p>The writing-seal<J.(1 bJ which the state author-hie sale,</p> <p>Evidenoe a subscrib-mg witness, íhaí remember attesting-the PaPeI>3t, ** hand writing-, that the name of the {Jotui'his the party’s, hand writing, hadVeon^the invariable practice of J^ertoat-’ test a paper unless he saw s!ti onboard himacknowi-edgo it, and tlla*be ^ oase in question is not an ®*^®l?k°n^ is admit the paper on a trial at la'v’y chancery”</p> <p>question*hav-iugbecu sold by !lil'ectoi£,ispie-sumptire ovi; donee that it feilto the tho^writing1" sealed by Gullioii.</p> <p>. creeinent of. the pfoprie: #iankfort to conveyThe * state one of their lots, theCcommis-siotiers were Boleoting the soatof ^gov-ermnent, was on sufficient to'be^enforo-ed inequity,</p> <p>(3) That the agreement by toraofFrank-fort, to con-vcy the state p^oftheu duce the commission-Tr the'seat óf government0 was madeun-dev authority ycniion°añd aftenvards sanctioned S~ eludes an in-quivy into the b'ein»10'»°ínst publicnolioy.</p> <p>(4) Visible occupancy,W facie evi-™1 donee of notice to a sA-cirxser^mdif notconclu-sire, the par-Y avoid it positively,1 and assume *he onus pro* that his purchase was made so as to fromknowí1** ingit.</p> <p>JoUmow^the bounds of his purchase, i!nd>there" a^pjizedthat it embraced ttle ground</p>

<p>Appeal from the Hardin Circuit; Paul I. Booker, Judge.</p> <p>Gbancert.,</p> <p>case78.</p>

<p>Guardian and Ward,.Obligations, Sureties, Equity, Parties.</p> <p>Statement of *■le oas"‘</p> <p>-(I) The sure-dian may be joined with him in the bill the ward ac"</p> <p>(2) Two wards, enti-tied to the same estate, which had not been di*y1!10'!* n'aA„. against their guar-^oririthi* the same instrument.</p> <p>Q __ifthe ef/ade had & been divided, a“d as.ío . jnTn "action at law in any caSB- *</p> <p>(3) Where a second bond of the guardian is in the same terms as the first, (not to indemnify the sureties in the first,) it is not to be regarded as a countorbond, but as additional to the first, and the securities in both arq equally bound to the Will'll, to the lull extent of the guardian’s liability.</p> <p>(4) In a bill by a ward against his guardian and securities, all, even the representatives of one dead, must be made defendants.</p> <p>(5) Where an additional bond has been given by the guardian, the surety in that must be joined; for they are all equally bound, and equity will equalize the burthen upon</p>

<p>Interest, Demand, Verdict, Damages.</p> <p>not*'com-06'* menee run-,linS on a on^lemanih0 until a de-maná is made</p> <p>Inst;tütion or the suit is a demand.</p> <p>jn<erest on <i,.bi contrac-ted out of the ter^^fac”4* -,vhioh must’ be asceriain-e(t a jury* ‘^rs’</p> <p>Whom the is ®xe; the State^the debt, as matter of law, it falls due, *</p> <p>Whore the <!ebt bears interest as matter of law, & thcjurysworn to enquire of damages, assess less tbán the sum allowed bylawj the court ought to disregard the verdict and give judgment for interest according to the law of the case.</p>

<p>Sheriff's Return, Bailiwick; Abatement, Arrest of Judg* merit, Errdr.</p> <p>The members ofthecompa-J'</p> <p>ftdtufn of the sheriff of Payette.</p> <p>Return of the °(</p> <p>piea by one defendant, ^ ^j. ab¿*etl others ¡0^° consequence of sheriff’s return'</p> <p>Trial and ar-be-?a»se peti-v°n clid.,not-note. ■</p> <p>0) Petition and summqns taínecT ra^ln gainst all the members of a noTesubscrib-ed by the name of one •ofthem‘‘anA</p> <p>, a (;ep„t“rn sheriff ef th* county whore brou^ht that part^of’ the defendants are noinhab-baiHwick, '& of the deputy sheriff of an-Sí',?™1 no inhabi-tauts of hia not'authorise an abatement as to them,</p> <p>bccauseibe’ action had been improp-as‘to^iartof the defeudUs, is essentially íliíFi*reixt(rom cause the action could tabled hTtiie form it was brought last-'1' thi'"1" batc’mmt should be tiTc/ui'sc & prjoo''dSrram Miaf point; in the latter, procecditigs can be had.</p> <p>Judgment for ^1™; F arresting the rever®ed Y.1jtv directions to arrest the ju(1S™el,t ^ "Jia,, derof abále-m®n* & P1'0-1</p>

<p>Krror to th.fe Harrison Circuit; John Trimble, Judge.</p> <p>Dcnn.</p> <p>Case 82.</p>

<p>Error to the Estill Circuit; Jamos CÍa'ílc, Judge.</p> <p>Case,</p> <p>Case 83.</p>

<p>Entries, Alienor and Alienee, Purchasers, Equity.</p> <p>t , the case."'" °</p> <p>That the 'alienee had, after judgment in ejectment, but before actual eviction, purchased of the plaintiff and conveyed to others, is no ground for relief of the alienor, against a judgment on hi’s covenant of warranty, unless he shows a superior entry; if his entry be established paramount, he would be entitled to the relief. And as he could not obtain the land IMe pur- ", cl!asersJliul his equity, he. might bo enílí]e<J.to int gai'nsuhe" Judgment at some ¡san "agree-*6 mont that if ttle “rcuit prior of61”8 curtain alie-gationsofthe tiraVshouw'1’ be aílqwcdto prove them, aníl íhat 0usly deem-mg itimnm-tcriah.(|e-crees for the uf., j jtt reversing-ihe di^oiVio time (o b<¿ given. ^ j, ’ ^ complainant, this court, hi</p>

<p>Error.lo the Fayette Circuit; Jesse Bledsoe, Judge.</p> <p>Chanceuv..</p> <p>Caso 8J,</p>

<p>Notices, Depositions.</p> <p>statement of the case.</p> <p>Allegations ef the bill,</p> <p>Answer.</p> <p>thedo^osl-l<> tions. '</p> <p>(i) TIk- return of a de-she,'*ff' iea.ving a co* py at the h°“tse oi the day ptated^ is a sufficient service of no* depositions!</p> <p>(2) it áp-^position*0 was taken at the same jtis sufficient^ though it he ca*1f.cb in„the deposition by a different Ila™e; as at occupant of which had been changed</p> <p>^ -yyj,ere a notice to a lJoP(>-severa^days8 and provide®. that if any thing prevents the taking it on the first (lay, it will be second "and" so on succes-¡lively, and it is not first,"the1 16 eimscmusibe shown by the whoíe behalf it vyas taken,</p> <p>a prove sional notice takoileP°-day subse-quont to that ^ mllv UjKler particular ^cu“s,:an' sonable to spread the subsequent S&lXar two mouths, where the t/^^d^s0' more than, 500 milqs spnable.</p> <p>Th . party may appoint an a-sition«, which requires what-is'um-easona.-sc]f to do, hi insufliciejit,.</p> <p>(6) Notice to sUion^nTa* days, at a placo 500 miles distant, is unreasonable.</p>

<p>Error to the Franklin Circuit; Henry Davidgo, Judge,</p> <p>'Chances-y.</p> <p>Case 87.</p>

<p>Error to the Clark Circuit; James Clark, Judge.</p> <p>Oasis.</p> <p>Case 88.</p>

<p>Fraudulent Conveyances, Creditors, Landlord and Tenant></p> <p>Statement of ie oase*</p> <p>oi'^musUrive judgmentánd execution, to deod'^of Ms debtor for land, on the b^rwfrMida lentf rAU U</p> <p>(2) A land-withoutjucig* meni, have ijhefraudu-lils teifanffor personal property, set ft obstructs"6 his right of distress — Arg.</p>

<p>Obligor and Assignee, JVotice, Evidence, Decrees, Cousiik eration.</p> <p>Statement of the case.</p> <p>m signeeofT note is bound ®very t^eob]igor°h had, up to nofjce of the whatever*" is good evi-dence against obligo™^ no^ tified of tho aftmvards’'5 g0od"againsfc the assignee.</p> <p>w __ the obligor took from the obligee, be-aTstgnmeCnt,°f though after h was made, greement ^ that iftboro had been a figeeVor Ihe land he had conveyed as of the. note, of which the °bhg°r was "tthTpur-0' chase, he ■would wait ■for the payment until a suit with the ■obligor was decided, ahd if the land was lost, the note should bo void, ¿he decree against the ob-ligee is admissible against the as-signee.</p> <p>The decree for the land against the obligor, 'is, also admissible against the assjgnee, though neither the obli-gee nor as-signee was party.</p> <p>(3) An agreement of the alienor with the alienee after the conveyance, that if there had been a decree against the alienor for the land, he would wait for the payment of the consideration note until a suit with the alienee was decided, and if the land should be lost the note .should be void, is on ■tuflicient con-«¡deration; the'oonvp11'^ anee was^ with or with-, °at.wipran-¿rial,1 ami*" the land be-l11?lost’ ‘taineci by an assignee, who Jw1110t tee befar* the agreement, may be per-en'</p>

<p>Notice, Cmvoeyfinces, Equity, Injunctions, Exhibits, Practice, Sheriff's Return, Process,.Parties.</p> <p>statement of the case.</p> <p>iiecree oftho circuit court,</p> <p>(l) Where convej; .holder of the legal title an^uístand-jng equity, he has súffi-n°tlc0> and must surrender the ti-tie, whenever be'rcride ap‘pear></p> <p>^ possof. sion is suffi-cient notice toapurcha-ser, of the e-qoity claimed by theocou-Pant-</p> <p>jig^tof ade-fendant in e.)®ol“eilt to ^”1" came into the ejectment bypnrehas-’ ingout theini temun ^nd uniting’ with JF0®; . this m0(;e brought into tomigbt’have been an ob-^junction— Argm</p> <p>[4] One defendant in a bill, cannot resist a release of (he - legal title, on the ground that the complainant has not paid all tho purchase money to another.</p> <p>■Where the defendants to whom a part of the purchase money for the land of which the conveyance is sought, do not answer, hut give thoir depositions, without ■ showing a disposition to place the matter in the complainant’s road, the chancellor will not regard it.</p> <p>[5] Where exhibits are read in the court below without objection, they cannot be objected (o in this court, though the •answer had professed ignorance of thorn, and called on the com-plaiaants for their proof,</p> <p>^gri™ °f the subpcena1 .on “Í ceptR^S.’hr insufficient f°,r ani of the n^appearl1* ing who re-siflyd in his</p> <p>must be proo in the record ineness5*”™" written scknowiedg-n!ent of ser-ed ona'sub-pcena.</p> <p>[8] It is k general ml© cause has befin heard, proper par-ües, and the reverse the ° decree and ,a without0 p’re-judice to any blturo suit, Jj,” parties had been .ro!l<-le in after of one/ ami a revi-vor, a copy of the order had served on the representa-tivos, or sheriffhad omitted to execute the defendant admitted to beihhis bailout^ivin1^ reasonJbr it, or where Written no knowted»--' morí t ofser-vico endorsed pcena? but" not proved, time will be comTainnnt on the return of the cause, the cxecu'ion of the process, or bring boforotho* court? 10</p>

<p>Error to the Ohio Circuit; Alncy M’Lcan, Judge.</p> <p>Trespass^</p> <p>Case 92.</p>

<p> Consideration, Trusts, Evidence, Error. </p> <p>the grantor ;]Xmjiandal times’únabl».' A deed which recites that to attend to his business,' and anticipating incapacity, in consideration of the premies an4 $400., conveys his estate in trust for the use qf himself for life, and at his death to ba distributed according tQ the provisions of his will, before made, is qn sufficient consideration, & passes the legal title to the trustees, and cannot” bo revoked.</p> <p>A subsequent deed from the same grqntor, attempting to revoke a former deed not revocable, and in consideration of natural love and affection, to convey the same estate, cannot be given in evidence in an action by the trustees of the first, against the do-nee, unless it be accompanied by evidence impeaching the first deed.</p> <p>Permitting the latter ^efJ to go to ouVsuphevi-denoe and refusing to aiReached as fraudulent,Vs calculated to j°¡.y°t0tnbc.. Reve the grantor could ^®tes' withstanding the former cleei\> ancl 18 err01'</p>

<p>Appeal from the Nicholas Circuit; John Trimble, Judge.</p> <p>Bebt.</p> <p>Case 94.</p>

<p>Judgments, Replevin Bonds, Sureties, Executors, Assets, Slaves, Devastavit.</p> <p>Statement of the case.</p> <p>Arthiir Fox’s Will.</p> <p>(l) Iteplevy* ing- a judgment against one obligor, is a legal discharge of not only that judgment, out also of a separate judgment rendered a-against another obligor for the same debt! so that no execution can issue on either judgment.</p> <p>The demand which the security in a replevin bond, executed in discharge of one of two several judgments against co-obligors, for the same debt, obtains against the other, by paying off the bón<JVis not a debt of recovd; but is bl ‡® contracts and hisexeo-not , iioe'it. l° n°"</p> <p>(2) Where certain lauds are directed tobemfold for the pay-mentofdebts ^.‘j^edu vancementof llls children, ^ér are a£" signed for dower to the wido'r’ ,ibo the provisions of the will, tbn exoeutor proceeds of the latter Tni<^bt, perhaps, sell the reversion lor Land^'vheth er devised ordirectedto be 501(1 by payment of1 debts, never p lf,Sal assets only through a com t o hands, and can, therefore, be reached in their hands, equity.</p> <p>(3) The ex-pences and compensation to the •executor, for and sfíliná 5*eal estate devised to be sold for edo-advancement of children, ought to b?, :thod bf the -laud's,</p> <p>An application of the tate°topay" the expénces of managing •thelande.din- . . justas ;tb'm 'creditors, «ud as to them, a dc- ■ vastavitin the executor.</p> <p>a^’euin hfs" hands“\incc (4) Slaves, prior to the act of 1800, though specially devised, passed immediately to the execu-that act, they immediately to the devi-see.</p> <p>so'ts in an action against ar^cTtie^'af ‘u'e'j j,ot as ' they came to, liJ® of bl‘^ at their1’ increased value, in con-th«ir!g«wti> anti increase of numbers, timo>oftho tj-inl, though be had, im-dis" t¡ífím t0 p10 heirs and devisees,</p> <p>^e’, elect to take a ch«t(;>sa, slave, when they passetj t.o him as ex-®.°ntor) in ^ a(]®aaa|j ¡°<¡ had made for estate, own — -Avgu.</p>

<p>Appeal from the Logan Circuit; Henry P. Broadnax, Judge.</p> <p>Error Co-ram V OBIS*</p> <p>Case 96.</p>

<p>Decrees. Process, Slaves, Executors, (pc. Trustees, Distribu-tees, Legatees, Fraud, Injunctions, Damages, Statutes, Equity Jurisdiction, Hire, Rents.</p> <p>Statement of the case.</p> <p>'fl) That the defendants in chancery do not recollect the service of the subpeena, and the bill was taken as confessed a-jrainst them, and that they depended on the other parties to defend the suit, is no pretext for a bill-lo ve-in-vostigate the matters of the decree.</p> <p>(2) Slaves arc assets in theadminis-tratór, and he represents t]]eJn1as regard to controversies thekTitle^a he does any other chat-</p> <p>tion o'n theti-tie to slaves, between the tor'only^'nd an adverse claimant, is ^inst'tlm'3’' distributees ?n any future tbc^érenot parties. °</p> <p>Tille to per-g°"“elgyca"ti tested’with and settled in b7 or. np’mnsf. fin-against administrators or exe.cutors, ?annot be ro-investigated at the suit of the diitribu-te6S orlega-tees — Arsu.</p> <p>(3) A decree ¿ay be ira-peached fur fraud in the byra* proper* bill for the purpose — Ar.</p> <p>oientfor the distributees to set aside a fHudnlent a-rainst the ad-ministra tor • mUo^er-mittherato re-investigate tte title, bofore°that suit, ed the inter-’tbVdrim-ants, where it appears he suitobsti-the nately, tho’ notjudicious-denies'1 anUly fraucí, and there is no other evi- . deuce con* duciug to prove it. ■</p> <p>(4) for di?-tributees to ministrator^” liable for neg-ligencein thó de.il;noe a him, it is not °«ly access^ ■ ry to prove guilty ofgiosa negligence or bodiaio*1’ Hut fenoe^hey6* charge him with neglect-have’ availed,</p> <p>utegivingtm per centum damages on junctions a- ■ gainst judg-^t’appiy^o injunctions against de-^!s.iDtherr-fore,’on the dissolution of ln.iunc-tions, no damages can bo giyen.</p> <p>(.6\Theofian eeíloiAvóuld not, perhaps, dic'tf ii'oTa c)a;^ f01. the hire of slaves retained m defenriau t’s possession, pond;»: a farther litigation, from the date 'of . the assessment of their hire in the former., suit', where it is set up in an original bill — - Arg.</p> <p>But a defendant,to an original bill may,by cross bill, set up claims touching the subject of dispute, & have them adjusted in equity, though originally cognizable only in a court of law — Arg.</p> <p>Hire cannot be recovered for the use of slaves retained in possession, Between the date of á decree in favor of an adverse claimant, against ah administrator, for th@ surrender of them, & the final decree dismissing a bill brought by distribu-tees, impeaching it as fraudulent, and enjoining its execution, & seeking to re-instalo tiie title,</p> <p>There can be i)o recovery, either at law or in equity, for the deten? tion of property after the hire, rents or. damage», are assessed, however long, the final de- ' termination of the cause may bo postponed by the delays of the Judge, by ap peals or injunction, except where specially provided by statute. For such, a remedy there is, at common law, no preceden!» —Arg.</p> <p>For an application of the above principle to rents of land pending-an appeal,see M’Clana- ' hail’s heirs vs-Henderson’s heirs, the next succeed-. irig case.</p>

<p>Error to the Bourbon Circuit; James Clark, Judge.</p> <p>Chanoerv. ’</p> <p>Case 98.</p>

<p>Eitoi to the Bracken Circuit; John Trimble, Judge,</p> <p>'Case.</p> <p>Case 99.</p>

<p>Appeal from the Mercer County Court.</p> <p>Case 100.</p>

<p>Usury, Scire Facias, Judgment, Demurrer, Set-off\ Sureties.</p> <p>Defendant went ou a° note containing a large a-mouui of usury-</p> <p>3For this judgment the de-lend’t therein executed new notes, in one of which the present complainant united as security-</p> <p>To an action on this note the defend’t pleaded the usury.</p> <p>Plea of usury adjudged insufficient, & judgment for 'the plaintiff.</p> <p>Bill by the surety, & allegations as to- the usury.</p> <p>Allegations as to Set-off.</p> <p>Prayer of the bill, and injunction granted.</p> <p>Defendants answer.</p> <p>Decree of tho circuit court.</p> <p>(!) A dole executed ¡for a judgment obtained or- % note w which was included usu-nous interest, tei with the usury.</p> <p>(%) rl'b a sci-re facias to revive a judgment, usury cannot he pleaded— Argu.</p> <p>(3) A note executed for obtaincd°on an usurious considera- and by-plead-ingthe us'ury, an action on f’TR 1,(5 de'</p> <p>(4) Judg-eration, are nut embraced by the words of the statute.</p> <p>Otherwise as judgments,</p> <p>(5) Wliera-the nsmy has cf,fntiy pleaded in an action at ¿jg^nrrer plea overrai-.e'l end jndg-"d^themaf ter cannot again be set UP in etmt.v '</p> <p>principal by has no connection with thatonwhiob wasremler-"’ ed, cannot be sct «P by tho a without some, thed'aim'^ could not bo as-wti-xl</p>