Volume 18 — Kentucky Reports

<p>1'miñes, Marked T/ees, Evidence, Geography.</p> <p>Montgomery William’s beld^rf sufficient, for want of proof 1!le ^n'ed foraf the beginning was marked the*entry!60</p> <p>cnlliaancn-try made in" the office of the^rossinK1* of Chanlino'y-</p> <p>f°!'kebfrom° Saltriver^ar-rison to Har-roclsburg,^is^ uncertainly showing ano-her crossing of the fork by the trace, out ofthecounty.</p> <p>Nor is such call affected by showing fora -rival, a crossing 90 polos above that claimed Where it* ap’ pears the one claimed was generally used,and that the rival was off the main ^travelled* in high water -Concordant, Craght™ VjS ¡40 °3.) ° '</p> <p>But uncertainty as to near which of •he- on °r?SS" distant,Pa M marked trae called for as found, is not fatal to the entry.</p> <p>So of uncer-which ddoof ¡the stream,</p> <p>Butfhe lower side of Chap-lino’s fork, at thocrossingof this trace, is tiie western.</p> <p>To prove a marked, tree, evidence of one witness that he saw the marks the year after the entry, but who says nothing of their appearance; and of another, that he saw them 3 or 4 years after the date of the entry, & thought they looked as if theyhad been mafic 2 or 3 years, is not sufficient, in the absence of all other circumstances..</p> <p>Artificial objects called-for, must be proved to have existed co temporary, with the entry. As to natural objects, it may. be ni esumedt</p>

<p> Gaming, Equity, Injunction, Statutes. </p> <p>An obligation formoneylost with'íCand by B. with C. at the same sitting, im-executed^to €. is within the statute.</p> <p>auclf'anobli gation may be Sy enjoined,</p> <p>But repay-went of mo-^artof'such obligation, cannot be decreed. •</p>

<p> Pleading, Equity, Jigent, Specijic Performance, Jurisdiction, Contract'. </p> <p>Alleeationsof tll° lni!‘</p> <p>t. Barbour’agreement wit)l</p> <p>AIIe«-afion=oi the bill corr-tiuu°d.</p> <p>riuvi10l!Í;s bond to Putt' t’orfho monm</p> <p>ahoo...k«»0 » tlm bill cor'" tm'wd.</p> <p>T. Barbour’s answer.</p> <p>, T'roufe.</p> <p>Decree of the circuitcouri‘</p> <p>Decree can„ notberender-tp^oof ofCorrpsp0n(l-fug allegation tho bill,</p> <p>That cov&-nanlc° t0 tho1" owners, with-execution in his favor to b® levied on to a stranger, is n° ground for for the price.</p> <p>In such case, “fnt]yCn mistaken in & pearingonto part, the pn«> chase money and interest. °"coverod.b°</p> <p>tu a bid on such case for iormanocfaiKt -cnenil relief against the x:ovenantor a"en°tnV&ythe owners themselves, if it ' pfainant°had not performed conditions his ntu-t^has legal remedy, and no fraud-tíonV-feur part, bill will fV’wanTof jurisdiction0</p> <p>Specific performance forced4 of a”" contract in which one Od.°nlyiS</p> <p>Mándate.</p>

<p>Mortgages, Pleading, Evidence, Conditions, Trusts.</p> <p>,,, . * the fill,</p> <p>Ariswe*.</p> <p>Decree of tbe circuit court.,</p> <p>Quiere — -May Absolute on£t3faee,ba proved to ba “ morjfS,aS”>.</p> <p>Where the facts appear swer^the" question of the admissibility of parol prove the condition, docs not arise</p> <p>Where it a - pears^from^ the answer, that the com-5,£n, X Sdant i he become that The^bill of sale was executed ro]thunder-Pa' standing'that if the debt complainant in a given shouid^be*1^0 void; otherwise,’the defend’t should sale be absolute, the transaction is fhmi°ghStfe’ debt was not paid by the «l^aftefthe" timó had expired.</p>

<p>Torts, Pleading, Mvidence, Instructions, Mandates.</p> <p>Case state!J.</p> <p>Objection, to-' evidence,</p> <p>instructions,</p> <p>Motions for-?ew trial and. judgment, °f of'ovenuled!</p> <p>Assignment-of error,</p> <p>Torts are joint & sever-rvctioiTmay6 be instituted against all or afterwards discontinued as to part, &. maintained balance, and verdict may be for part & others. * 6</p> <p>Whore the evidence con-irioi'e3 ties passes were com-milted than declaration!? a refusal of the court to. instruct the iury that no more can be recovered for ifeerro?laui’</p>

<p>Leases, Executions, Tenants, Sheriffs’ Sales.</p> <p>GRse stated.</p> <p>Evidence,</p> <p>Instruction-;: moved ami overru1^'</p> <p>Verdict for triaTrehised""</p> <p>A lease made by defendant cution^iaf3" been levied on the land, üon°to^a' re" coveryby the purchaser.</p> <p>Tenant who under'such a lease, is not tenant of the ontiteTu)& notice to quit</p> <p>Lien on lamí execution is not lost by delay in sell-inS-</p> <p>That one sale only was made of a SSB5S5: oral oxoou-tions in favor •not be alieg-od against the sale, in an ^^chaser^m recover the possession,</p> <p>jn SUc^ case was endorser útywhomade the sale, does affect the Purchaser*</p>

<p>Error to the Floyd Circuit; Silas W. Robbins, Judge.</p> <p>Chancery. Case 9.</p>

<p> Judgments, Motions, Notice, Process,'Execution-. </p> <p>Judgment with a provi-30 that exe-stayed until ordered by a stranger unyears after the trator of the moves^the court for ex-ccution: It dered^wfth-" out process or notice to do--cadant.</p>

<p>Devise, Executors &c. Guardian and V/ard, Equity, Error.</p> <p>the bill. Allegations of K.'H</p> <p>Answer of ex-eyutrix.</p> <p>Answer of other dofen-g““sfss,bi|in<i</p> <p>Complainants’ answer Across bilí. •</p> <p>Decree of fte circuit court</p> <p>jsaan d'ó*.-can’s wiji.</p> <p>Ne words of inheritance arc necessary in a devise, to pass the entire estate in a slave.</p> <p>(íood=, do not, technically,include slaves; but, in a devise, may embrace them. — Concordant in principle, 1 Monroe 28.</p> <p>The m!;y expend, oA^mfant distributees, to pay physio^ns &main-sickness,</p> <p>such case, ^ere tl™ smaj] t¡ie will not> after ma^n-be held Pr°ve the the instance their repre-sentatlves‘ . .</p> <p>‘Phis court will not re-cree°correct in all other respects, and cecdín^bc-low to correct anerrorinal-1,owing uQwcr indifferSiT ° land.</p>

<p>Revenue, Statutes, Forfeiture, Construction, Interest, Damages, Taxes, Redemption. ■</p> <p>Petition,</p> <p>Auditor’s ac-swer.</p> <p>Judgment of circuit court.</p> <p>It has been distinctly &' repeatedly declared by the legislature, that all taxes on. lauds should bear interest, and the lamí be bound for the amount; 'and all who ln.ve conformed io the acts, down to that of 1826, have paid the interest.</p> <p>Act of 1825 examined.</p> <p>The spirit both the pve-enaotmont is against the supposition tcrristth'as*in tonilod to be remitted.</p> <p>anf nth so^ sions do' not indicate that itwasintend-erl to remit iaterest-</p> <p>g0 0f the istb.</p> <p>The act, in *1S concerns the revenue and ? J^ttobecon-strued as a penal statute, e^_ ’ " p0imded.</p> <p>The taxes for according’to the statutes in force, with interest at the rate rooted11 from the date each year’s tax fell the'sumsTffcu* merly duo on the land for ■$axos.</p> <p>Thore is no-act1ofÍi85,5>0 to remit a’ part of the revenue^and secured’by the lion; nor ofmentmthc induce it.’</p> <p>payment1”? all sums due, ~ling.to force prior to thc passage of thy act of lia^pei-mi'iTa redemption under it,</p>

<p>¿iTor to the Montgomery Circuit; Silas W. Robbins, Judge.</p> <p>Diiirr. Case 12.</p>

<p>Parties in Chancery, Devises, Executors, Injunctions.</p> <p>Jn a bill by part of devisees, to enjoin executors vested with power to compromise, to sell and to convey the land at discretion, from süSmEwh0 dsef up claim to a í180* of“ ,thf obtain a conveyance to thrnnselves, bé made parties.</p>

<p>Pleading, Discovery and Account, Bill for confessed, Equity, Parties, Mandates.</p> <p>Case,</p> <p>Allegations of the bill,</p> <p>l^forrc</p> <p>Bill for con-l'cssed, & do-^"“°foircult</p> <p>On bill for arcounPTn1 oise sum is positiveiy al-(fue,1 decree cannot be rendered on tho smallest sum stated oh conjecture.</p> <p>One of two inspectors may maintain a bill for «■ainst the other, for his recoived ti rely by him.</p> <p>in such case the third'in-opootor,</p> <p>on]yt<J ^hen the two disagreed in their opinions ¿oosTiot ao-pear had any interest inthe l11 qufs' necessary</p> <p>. proceedings be had, to complainant be permitted to take proof,</p>

<p> Occupants, Improvements, Rents, Limitation, Bar. </p> <p>In 1806, F. alienee of the elder paten-tee, T. by judgment in ejectment, evicted the possessors. a,nd sion was delivered to K. his sub-alienee, who occupied the until i judgment was recovered hy default a-tenants1^ D. junior pa-tentee, and evicted^0 In 1817, K. ob-tainedjudg-ÍTwho fiatT*' pending the suit, obtained jFromEyan°8 mesne paten-tee. 1). claims com-imnrove-11 °r menls made by the first possessors, prior to the first eviction in 1806: Ruled, that he er, because it does not ap-record ^the porsons who mado the held u“de!-S him or either of his claims,</p> <p>At common law, the oc-boundVor rents to a pe-nod long an-teriortojudg-B™o„roccu_ pant]áw which gor”se "holds him responsible only foe *'eats judgmont. Where the judgment is the'jaaer”1 part of the year, wheth-chargeable for the rent of phe^e0n’,ile" whether the crop was ju<jgmerit. Mandate to apC0’vathe oc-. cupantfor improvc-^¿¡erhis’*' claim.</p>

<p> Assignment of Warrants, Surveys, Evidence, Entries, Statutes, Compact zvith Virginia. </p> <p>Warrant and its assignments.</p> <p>Botts Joseph’s entiy.</p> <p>Judgment in ejectment for Chiles.</p> <p>Bill on the entry by the heirs of Botts.</p> <p>Chiles’ answer.</p> <p>Decree of the circuit court.</p> <p>Assignments of the warrant from the original proprietor to the junior paten-tee, cannot be brought m question in bis suit against the elder paten-tee, by a mere negative and calJ‘ for the proof. Identity of the survey may be established by the correspondence. of the-objects called for, with those found on the ground. That the trees had been previously marked, in a private and inof-ficial survey, is not an objection.</p> <p>Whether the marks were made or adopted by the survey, the purpose • is equally attained.</p> <p>An entry is a specific appropriation of the land, and in 1782, there was no time in which the owner was compelled to survey.</p> <p>Acts of Virginia limiting the time for execution of surveys of ’8<i and ’97, unlike the olfi- or acts, looted to theend, oftlie sur-10'1 veys, and proscribed th<ft0imend0d without’ex-ccption or ^IPns *'j0int° oefout In the othprs.</p> <p>Hence, where a sur-eutedTn the" timo allowed by the act of (hrthe^ncMl be enquired; it is valid— Conusant, 1 onroe .</p> <p>The compact with Virginia, must be expounded in the liberal spirit in which it was conceived, that the intent may prevail.</p> <p>It cannot bo presumed she intended to restrict Ken» tucky and prejudice the just claimant in favor of an elder grant surreptitiously obtained, arid between such titles on ■ ly can the question be made.</p> <p>That Virgin--iaintended the power to extend -the time of mak ■ ing surveys^ might b’e exercised by Kentucky, is proved by a long course of her own previous legisla» tion, and confirmed by-the fact that at the next</p> <p>session after tiie passage of the act which constitutes the compact, she exorcised it.</p> <p>The motives which induced Virginia to hasten the execution of the surveys, ceased at the separation. She ivas under no moral obligation to bind Kentucky to impose the forfeitures ; nor was she at liberty to do it.</p> <p>There is no principio of our govern1 ment, which confers on an individual the control of its power to redeem from forfeiture, that he may gain.</p> <p>The acts extending the areconsiienS with the com:paictj t Tlwir maintained by the gener» sjla“ 1^®r" f unpeople,, the legal in-' telligence adjudica-™1 tionsofthe courts, with ception of?* opinion af-terwards __ withdrawn*</p>

<p>Case stated,</p> <p>Torts are j°intatl(lscv" s“ , defendants in trespass pjea^amfa t0iut verdict and damages all tée judgment must pursue - an(i 1,e rendered jointly against all.</p> <p>j5®?*'» be set aside us to part, no judgment derecl°á^S¡üist the others,</p> <p>To reverso a al-afnsTpart In such case, error lies,</p>

<p>Rescisión of Contracts, Equity, Hearing, Discontinuance¡ Practice, Dismissals of the Bill.</p> <p>¡gallons ‘ the fa- ■ of the eoiitraci-vilh one wo deten-ts foi an hane;e of 1; that >re exoeu-1 ofthe tract, one jndant sold to the mer died the ob-goírtionoftho contract with the heir, knowing but that tbe'lanrt he conveyed covered daim^con-stitute no for a-ainst the first defen-líbeTi*' him as confess<?d,</p> <p>The other de% lcndant having answered and denied, a^aTnsthfm without prooí at least, that g^Jonve^ed was so covered' by «noth-</p> <p>¿fter pershayo ^ been read on has directed the bill to be ^nursed for proofoTsome material fact . the complainant cannot have leave to discontinue his suit. Nor would it ho proper in such case, for the court to dismiss the bill without prejudice.</p>

<p>Appeal from the Bullitt Circuit; Paul I. Booker, Judge, Judge Haggin delivered the opinion of the Court.*</p> <p>Ejectment. Case 19.</p>

<p>Slander, Statutes, Pleading, Jurisdiction, Error.</p> <p>Case stated,</p> <p>Words spo-iug a charge * of adultery, tenable at" common law; but now are, |iy^our.stat-</p> <p>^ whole action which does ”£e'declara*'1 yon jsins‘u¿, ficient.</p> <p>The action j °- muetbeinthe name of the husband and declaration, ° properly con-chides to the th^p&lntíftV.</p> <p>h!lSnot jurisdiction to re» y^e J-grior courtR" refusing a continuance, ^’r°tSof ín-or had been sued ont before it j¡s!¡1se{fsl;ab"</p>

<p> Debl-, Foreign Funds, Covenant. </p> <p>Case stated,</p> <p>&ebt will not l^a.tion^o'3" pay so many dollars in funds^1*'1^</p> <p>it pan be maintained may be rendered for the</p> <p>Covenant isr the re“e<i;g obligativa,</p>

<p> Appeals to the Circuit Courts, Statutes, Bonds. </p> <p>party against whonijudg-r“" -^tice, for debt, &c. appeals m Urn th^bondmust be. condition ed to pay the ^d^goía Wtiorp til A</p>

<p>Executions, Sheriff’s Sale, Fraud in Sales, Suppressio Veri, Evidence, Pleading, Practice, Error.</p> <p>Case stated,</p> <p>Sale;uncieran execution issued after de-dcath^con fere no title,</p> <p>Purchaser knowing of such defect, who sells without war-; ranty to an-other ignorant thereof, ■without communicating •the fact, cannot recover on a note for the consideration money.,</p> <p>Objection to a deposition taken in a suit infer ali-os, because alleged to be “irrelevant,” will not avail, if the facts deposed to be competent evidence.</p> <p>in appeals to the circuit court, where there is no declaration, the want of consideration for the obligation, or fraud in the transaction, need not bo pleaded.</p> <p>If a written plea be filed in such case, the party wili not be confined to its allegations, on the evidenced</p>

<p> Abatement, Pleading, Former Suit Pending, Éxeculors, Heirs, Judgments, Amendments, Error, Costs. </p> <p>Cage t ^ ^</p> <p>Plea of mat-mont” com-moncing in bar, is ill on cmurier.</p> <p>In a plea of former suit pending, it mustbeavor-red that the suit is still ponding.</p> <p>judgment de bonis propriis nilnRtrator' rendered on demurrer, is erroneous.</p> <p>So of such .judgment against heirs.</p> <p>Thó statute for the benefit of the tives'ir^such case,’ applies equally to the heir®> a^r®x' the assets'aro put in issue, and found for tho judgment against them must be ren-madc’of°thee assets descended.</p> <p>_ ... question examined.</p> <p>Errors in these respects y| cour(: below; it is long aSned^for* error in this court'</p> <p>Costs not al-towed,</p> <p>Mandate.</p>

<p>Slander, Pleading, Confession and Avoidance.</p> <p>Declaration,</p> <p>Special plena,</p> <p>J'ndgment oif the circuit court.</p> <p>To máintain this action, it is essential the words contain an express implication of some crime or misdemeanor, liable to punishment.</p> <p>To call a man a ttiief, is no4 it be intended to impute, to</p> <p>Words which. ject on ^iebi they are spo-noñ1™ bu? ntbthe colloquium, do, not import it,, tionabK10*</p> <p>The defendant may show by the subject and colloquium, that the design was to only impute a breach of trust and not felony.</p> <p>ma be done either in evidenceor foy special Slouroe'lOO.</p> <p>in the latter case, the ed bein^ad?" ■ spitted, and the whole colloquium stated, it is the province of the court to decide on the import of the words, and intent •with which they were spoken.</p> <p>Mandate.</p>

<p>Executors, Guardian and Ward, Interest, Agent.</p> <p>Case stated;,</p> <p>/in oxeeuto.r, whose agent collected money in another State, devised by the testator to bo there collected and invested in a slave for the devisee, after denying the collection, insisting that the guardian ofthe devisee had collected it, and also that he, the executor, had paid it to the guardian, and failing in the proof, is liable to the devisee for principal and interest of this State.</p> <p>That (here is no proof jn such case, that the executor over received the money from his agent, is not malorial, especially where, after many years, g^owa to**' bring the agent to ap-coun^</p>

<p> Execution, Mortgages, Statutes, Injunction. </p> <p>j^lleo-ation-:' 0f the bill.</p> <p>Prayer of tho biU.</p> <p>Decree of the ‘nrcuit court.</p> <p>Mortgagee of a slave cannot have m-gainst the plaintiffin an execution^ mortgagor^to prohibit the Bale, though mortgagorin his bill, and prays a closure and. sale by the chancellor’s order.</p> <p>b^solcWmder the fieri fa-oias. For, by the statute of 1821, the mortgagor’s</p>

<p>Mortgages, Witness> Evidence^ Writings, Instructions^ Error*</p> <p>statement,</p> <p>Objections to 0 W1 ness’</p> <p>la an action by mortgagee mortgaged ° propJrly from the vendee of the^mortgagor is competent to prove the mortgage, Si that it re-iáfietT 16 '</p> <p>competent,in such case, where the witnesses are out of the cro the ecuüonofthe mortgage, The mortgagor is also</p> <p>ft seems, that a witness to the' absence of thesuhscrib-in| the signature of either the PNt^0®:^1' bribing witness.</p> <p>- , Where the evidence docs not appear iu the record, in-presume^thV: instructions if Ije^usíTñeci in arly 3tato of, proof,</p>

<p> Injunctions, Slaves, Executions. </p> <p>Quaire, whe~ th®r’ “ auJ chancellor may restrain the sale of execution^on the applioation of an ad-verso claim-</p>

<p>Beet. _ '-'ase oil,</p>

<p>■Error to.the Mason Circuit; Adam Beaty, Judge.</p> <p>Debt. June 8.</p>

<p> Evidence. </p> <p>On a count jg®eia|tsI years^service, the letter of the em-cribing the" service and proposing tonus, is admissible against him, not asconclu-sive, but for the consideration of tho jury in making the estimate of the services expected and compensation due.</p>

<p> Pleading, Evidence, Allegation and Proof. </p> <p>Count for work & labor, &c. done by plaintiff on “ defendant’s walls,” is not Supported by evidence of work & labor done “ at the plaintiff’s request, on the farm of, and for the benefit of a third person.”</p> <p>The count,in such case, be</p> <p>Mandate,-</p>

<p>Profert, Covenant, Demand, Pleading.</p> <p>Averment of techs', sal.y<</p> <p>Itl declaring on a deed, profert or a oüfeforthe" omission, is indispensable-</p> <p>tha^the"^!-ting declared, on is filed though info*-» mal,"is sub-fert andsJk-cietft*</p> <p>Mandate.</p>

<p>Apprentices, Covenant, Pleading, Jurisdiction.</p> <p>In an action against the father on his indenture of his son to a tradesman, for the son’s departure • from the service, plea that the plaintiff had, by wrongful and cruel treatment, forced and driven the apprentice from his service, is sufficient.</p> <p>The statute giving the jurisdmtion m such cases, neither suj»er-sedes suc.hac-nor 5Ucil defcoo?'</p>

<p>Wills, Evidence, Statutes.</p> <p>case stated,</p> <p>To prove a will devising lands, eyi-subscribing witness, that tStator’s tllC name and subscribed his ness at her" request and inthepre-S<nd!enother subscribing1 witness, and by the other he^eard^er acknowledge it, and sub-witnessat her request, and in hcrpre-cient’1SSU6' 1 "</p> <p>l.'iiwinii,,</p>

<p> Jurisdiction, Statutes, Construction. </p> <p>Case stated_</p> <p>Jurisdiction ?fthis °our* ánísubjeotio restriction by legislative gtatuteTs-’ tablishing this court, ex-^tsfte're-^ visjon 0f aDy opinion of an 'raatis °or1$ refusingSar new trial because the ver-^toTvi-dence. This prohibi-Equally to^8 casespending at the pas- ^ since instituted. doifbtfuf and thelegisla- ^ tobe^r^ht bjLiphication, rules of construction ™%>dto;ebut where, ns this case, clear Expression of the ]e~ gislative will.-</p>

<p>Covenant, Breaches, Verdict, Arrest of Judgment, Error.</p> <p>Case stated.</p> <p>Declaration.</p> <p>Where the covenant is to save the cov-enantee from all suits, the commencement of suit for a just cause, is a breadh.</p> <p>®ut where ¡¿enT bv'oon-taiuing stipulations a-|oi"ssts„¡1tsac’' judgments’ &c. brought ?rt0 shows the parties un-hacfberai8Uita commenced and that oth-would bo JJe Covenant is to be con-str.ueiJ a-the suits.</p> <p>In assigning a covenant of° the vendor of a boat, a-l^tT^c^for money owing by the boat count ofits&' purchase,” to alleS®.thai £cen°com-at menccd by ?u.oh P«rf°n, ]®ias”staia“t; pear to have been on ac-purchase**10</p> <p>Where seve-are^sskmed some of which arede-fenerai ver-Sol UilL ^</p>

<p>Appeal from the Logan Circuit; Henry Broadnax, Judge.</p> <p>Rebít. Case 41.</p>

<p>Collectors, Duties, Pleading., Principal and Agent.</p> <p>Cage state,|</p> <p>In an action by the United distiller’”11 bond, plea of accord and with "tuTcol-lector, without an aver-authority to make the commuta-ficient8 insu^"</p> <p>'Em acts of lectors*1'ower ]y.</p> <p>. *a°enf to collect" does not imply that he may charge any** thiugbut the thing due.</p> <p>In sutre’ tion will not bind the principal.</p>

<p>Executions, Abatement, Motions, B.ar by lapse of Time.</p> <p>0tt3e stated,,</p> <p>Judgment of circuit court.</p> <p>After the death of the only defendant in an execution, the sheriff cannot proceed further, tho’ the estatp had been, previously levied upon, without revivor.</p> <p>But the motion to quash and set aside proceedings for such irregularity, & tq obtain restoration of the moqey, •whether barred by the statute or not, must be made in reá-sonable time.</p> <p>Insqcb case, Hot 12years ble, andabar toiiny motion for the purpose.</p> <p>Courts will regaul the whereverThe object is ¡sorely to cor-</p> <p>reot irregula«ties, & not substantial justice,</p> <p>Mandate.'</p>

<p> Pleading, Action, Variance, Demurrer, </p> <p>Case stated.</p> <p>neciaratioii(, orí a co-ve-Dant t0 ,be, performed after date, sta-~ ting an erro* neous dato, eiian t^ sayms to be not yet due, is ill on de-</p> <p>The oyer liad of the instrument, whereby the true date is apparent, & which shows the ob? ligation was due, does not aid the declaration, for then it is ill for the va-rianop.</p>

<p>Instructions, Nonsuit, Evidence, New Trial, Error,</p> <p>Oasestaled,</p> <p>Where the evidence con" maintain the declaration, instructions notbc given. In such case, has refused te sot aside the court'cannot disturb it.</p>

<p>Error to the Nelson Circuit; Paul I. Booker, Judge.</p> <p>Chancery, Case 47."</p>

<p>Aléase, Witness, Principal and Surety, Blanks, Authority, Alterations in Obligations, Banks, Discounting.</p> <p>Statement 0f the facts and evidence.</p> <p>.Pleas,</p> <p>Principal re-. ^otiu^ced'a^a witness,</p> <p>inslnictíons,..</p> <p>Belease can' on^a present tight.</p> <p>On the eye-obligation* 8 the principal incurs an oh* demmf^the" surety, which his release to th® Sfasapre-P sent right, to future^80*in</p> <p>Surety, who bas released his right of in-thcprincipah ami cove* «anted that notwithstanding a recovery , he !dn« woukl never the principal or other joint sureties, to^od*58jko the heirap-° parent, who i** .?v nTey' ranty, from*** ever after as-,-is.vting claim,</p> <p>The princi-released"? competent' witness for S1'rct}’> >>i the "obliga-"" tion.</p> <p>Where a blank is fill-obligation*"» as to bind the Parti differ-the'authorit r and intention at the time of delivery, the nought* un-S lessafter-^artls ®</p> <p>Ifti^svret^' afterwards^ execute it on {¡cañón'8 without knowing of the altera-be nought at, to him also,</p> <p>The onus pro-surety^vas^ apprized of sychaltera-íí^oS</p> <p>Anj aJtera_ tioii,cvenomj-beneficial to deed/</p> <p>After a note has been discounted at bank, it may he executed by sureties, and they will be bound without any new discount or consideration.</p> <p>The obligation of a surety does not fíe pend on his execution at the same time Viih the principal-.</p>

<p> Arbitrament and Award, Pleadings, Evidence, Allegation, and Proof. </p> <p>Case stated.</p> <p>where the submission is °°“tro" mand 0fone of the parties aS?-IIlsta a decIsioiT'ia favor of the c^aim’ with-tha^tlm'paVty to the sub-mission shall npt^up-port assump-sit against 1>im‘</p> <p>Evidence of aninsimul P°f puta6,s.ellt plaintiff and defendant, of anVa third person, and promise of dant to^pay tile balance, wil1 n.ot SUP* thefour^om-mon money counts,</p> <p>Mandat®</p>

<p> Private Statute, Administrator, Auction, Contract. </p> <p>Assuinpsit is Pot maintainable by an administrator, authori-sed by private statute to sell the real estate of the intestate for bonds, ■with sufficient sureties, against the highest bidder, who failed and refused to execute bonds for the purchase mo-nfey.</p> <p>Quaere— Whether case might be maintained tor the consequential damage.</p>

<p>Krror to the Montgomery Circuit; Silas W. Robbins, Judge.</p> <p>SctREFACIitSf Case 51.</p>

<p> Execution, Injunction, Alienor and Alienee. </p> <p>It seems that an alienee for consideration, is not entitled t0 anmjunc-sale ^nder ^ colour of an gains” aUenor</p>

<p>Entries, Distance, Water Course.</p> <p>Shrewer Andrew’s entry ®00 acl'08,</p> <p>P¡ h ¿¡sor j^n C’s entry of 687 e?-cr®?> heIli vajt;</p> <p>rn applying the call, “ a-J?,1^ month 0fEa-gle creek, beginning on Uie north said creek,” the word, about, is to be the distance taken on a i.tnught hue.</p> <p>'Rhe rulo is, a distance so where itis’on a small stream of suf-is^olietaken on a direct line; where on a great stream not C sufficiently long, except dere^tkeme-anders are to bo measured.</p> <p>How Rich-en-be sur‘ J</p>

<p> Pleading, Equity, Injunction. </p> <p>Allegations of the bill, &c.</p> <p>Decree of the ci'rciíií 00urí>-</p> <p>The oompl’t. has no merit hi^bilf106 °f</p>

<p> Entries, Pleading, Demurrer. </p> <p>Larde John’s •uffioient*111"</p> <p>Calls to in-elude the first Vacant land fit for cultivation, onICen-boknv the*’ mouth of Drennon’s ^íto'^n* down theme-anders of the river,& with far from the riveras they are fit forcul-boUWnsuffi-6 cient.</p>

<p> Evidence, Writings, Witness. </p> <p>On the trial oftheissue on tum, where there i.s a ^¡tnessto the writing, othi er evidence Is n°* comPc* tent to prove its execution, without ac-h°su^Sg|(i°r as ¿at is dead, out of thejunsdic-court or Hk".</p>

<p>Lunatics, Guardian, Attorney.</p> <p>Statement,</p> <p>Lunatics must "'appear by guardian; of mature aSe>bJ att°r"</p>

<p> Practice, Deceit, Warranty, Action. </p> <p>case stated '</p> <p>Where the record show* that one juror might be withdrawn (ry the cause, their verdicr. S00*5*</p> <p>In an action of deceit, though it appears there was a warranty, yet if the fraud be proved,the plaintiff may recover; for lie had the right to sue on the contract or for the deceit.</p> <p>Where a mo tion for non suit is overruled, all the evidence must appear or the court below will be presumed correct.</p>

<p> Practice, Pcgrlies, Husband and Wife-, Devise, Verdict Pleading, </p> <p>Case stated,</p> <p>WillofHocker the eldejfi</p> <p>Instructions ™ove(tbytiM! en an '</p> <p>Assignment <*{ errors.</p> <p>Tfiongh the established order and time for introducing . . testimony, ought to be adhered to in the general, the court may, to at-tainjustice, permit either party to introduce evidence of any material fact, before theju-rv retire.</p> <p>The husband may sue aloneto ye~ devised to his wife during coverture.</p> <p>the¡-e aresevera) ¡deas, a general ["substantially finding against all eas‘</p> <p>pieaCofthe statute of limitation J£“°^d“r£ and the plaintiff joins is-not ava;i himself of the against him •» for the fault w;is *'*’ °'yn“</p>

<p> Pleading, Limitation, Immaterial Issue, Instructions, Statutes, JVew Trial. </p> <p>Declaration.</p> <p>General issue and stefuie o imi a ion.</p> <p>instructions.</p> <p>Plea that the a^neroh-mt°sr account^ and that the de-within’ twelve months J)ext is insufficient, issua lmmato"'</p> <p>The limiia-°°m-thefoniM-he cause of action accrued ment of suit.</p> <p>a t;legroun(i óí the absence i'tíT’nf’ and that the party was prevented attend-fofa^ontinu* ¿nee, by indisposition, witnesseshaa sum-not!</p>

<p>Action, Parties, Verdict, Arrest of Judgment.</p> <p>Case stated.</p> <p>in assumpsit against seve-^nts^he recover aSainst all oi-whTr^part^ discharge ed on some j^o^as inÍ fancy qr the hke.</p>

<p> Equity, Purchasers, Notice, Consideration, Infants, Limitation, Bar, Possession, Dower, Occupying Claimants, Improvements, Rents, Bill of Review, Guardian ad Litem. </p> <p>Case s*atet*'</p> <p>Defendant cetvecfthe tie and made the purchase ticethat the interested his vender (also n°llGthe amount paid as the bal-anee of the of'the'oon-0 tract, throtmh OTmplainants derived their equity, must ^"mentof1 that sum and interest Contracts for purchases ^,0?1 co“~ Within age, avail noth- ^</p> <p>Jus(ice jtseIf reqU;res ¿afr there be a tli® Averse0 ° claims, and-the chancel-on the stale" demand with disapproba-</p> <p>statutesof limitation do terms, f1^ 00„^ of chancery ^ave adopte^ t¡v'e s|nsg anditicon-^lved'on the shortest period.</p> <p>. tied "thatS<3t" equitable rights must, ^hin’twelfty years,</p> <p>whether°es sentiafto this bar.</p> <p>Heirs having remained with the wuision'untU»^ the equitable title under which the father held, time to bar their bill against subsequent purchaser with notice, did not commence he obtained the conveyance, whatever bo their ages.</p> <p>Dower is not "n Hn^which the husband possessed dor bond for his equity ^ was clear, by all the pur-havingbeon^ paid, on ail the contracts whiclfhe derived before his death.</p> <p>Whoever in good faith lantUofan- 8 other, ought to be compensated ■wnen evicted.</p> <p>inlaw, the holds the legal title; bat equity and they of him made em'</p> <p>Where the made*in baft faith, the oe-com-"hanoelio/a.'s ant, may not prevail.</p> <p>But where adversary tfieoc-Je 0 must do the equity he dé-paying for the improve, he ob~ w!’®th" good or bad faith; for the oostnor his gain,</p> <p>The successful claimant occupant the value of-his imprpve-p^^when 6 regained; for thus much he is enriched, and no more. Interest has no place in the estimate.</p> <p>Rents can be recovered against the • bona fide occupant, only from filing the bill — against the mala fide possessor for a period not exceeding five years, in analogy to the statute.</p> <p>These rents are to be charged on the property as the occupant, or those under whom he claimed, entered upon it, excluding all reckoning for rents on improvements made by themselves.</p> <p>The improvements made by both the occupant and those under whom he .claimed, at 'whatever period they were made, shall be valued as commissioners .find them, and paid for by the successful claimant.</p> <p>Decree will not be opened d'J'n't'to^nike' recently discovered te.sti-ao-es'of the cpmplain-thevic^u” nfthe defendant.'</p>

<p> Contract, Limitation, Executors, Parties. </p> <p>Case,</p> <p>An assumpsit “alle by one in the (Mucin-capacity, the cage out’of- the ’’ statute of lím-the1 ’ action against all.</p>

<p>Parties, Assignor and Assignee, Specific Performancet Misnomer.</p> <p>Allegations of the bill.</p> <p>Assignor is nota necessary party to *íi bill by as-signee on an obligation for a conveyance of land, assigned since our statute of assi ;ninents. Otherwise, 'where, the as • signment was prior to the act — l Monroe 28.</p> <p>Omission of ^ initial of a signature to an assign-not where theex-ecution is a- & no*</p>

<p>Cross Appeals from a decree of the Henry Circuit; Henry Davidge, ( J udge</p> <p>Chancery.</p>

<p> Appeals to the Circuit Courts,- Jurisdiction, Statutes, Practice, Error. </p> <p>Case stated.</p> <p>Qn an , from a justice to the circuit tiff cannot10' agajnst de’_ ^ ^tion* cauTe*of ° ** which the justice hadne ComTMoñ^ 74.-</p> <p>The emu- in the a declaration tobe filed, is not cured by having^before it was offered, plead sttjno^by'his renewing the plea to the a^unsuccessful objection to the filing of tira^antfhis plea to the jurisdiction verruled11 °"</p> <p>Jurisdiction where the parties are brought be-by appropri-4 ate process, or voluntan-its cogni- t0 ¡janee.</p>

<p> Witness, Assignor and Assignee, Set-off, Pleading in Chancery, Practice, Exhibits. </p> <p>Case at law stated.</p> <p>Allegations^ the bill of in-Junctl0n-</p> <p>A ^</p> <p>Proolb.</p> <p>Assignor is fgntct°'n^v the discharge of an obliga-tl°?' °“ a'bilUiy'obH-gor to enjoin t!ie judgment at law obtained by as-be^e'released from his liability on ment.SS1°a~</p> <p>Where the obligation in exhiblteil in the bill, and not directly answer^nd6 is read’below ,without ob-cTiurt'will'13 take it as truo, without proof m the recor .</p> <p>Demands heid by obli-gor on as-assignment6 may beset off inequity.</p>

<p>Executions, Void and Voidable, Sheriff's Sale, JYulice, Partners.</p> <p>Case stated,</p> <p>címotbefc-sued out of county p^gmentis rendered, ex-ceptin cer-the statutes,,</p> <p>But a fieri far j to another county,is not vo!c]’ ¡>nt alld the validity of • having > ?otioe of the auty"</p> <p>Where the • plain tiff in the fieri fa-cias so irregu-tolynoü"erd county, becomes the havin^afair opportunity of knowing of the irregularity, the sale is invalid and .may be quashed.</p> <p>plaintiff’s knowledge, estof'both’6'" must share the same fate, Partner of the plaintiff in the purchase, is affected with notice by the</p>

<p> Executors, Set-off, Equity, Assignor and Obligor• </p> <p>Case Stated.</p> <p>Adiaiais.fr.j-io, y,'e creJitors o'¡he sapm-¡¡¡ana'tliewi or occupies their fhíoe, isenii-ua]jy to th(i assets,</p> <p>Creditor of cánnotréSst payment of ap obligation tor for goods of the estate, demands1 in'law whenc it ap-years the as-I?1-?'?”3/?" cíuíLs having prucedenoeiu W.</p> <p>creditor° after so assign-cent »f sueh recovered’a iudgmeut cm bis claims . alministra6 Sc^doas aid his ease.</p> <p>Judgment a§“^5¿^¿ tor, dt/Wnot «onetudo ■ Sess hiV'ptior/ WigMef. , .' ’.</p>

<p> ■fiction, Improvements, New Trial, Terror. </p> <p>Statement,</p> <p>This court is forbidden to control the decision of an inferior court, given on a motion for a new trial, moved on the ground that the verdict is contrary to evidence.</p> <p>Assumpsit does not lie to recover the value of improvements made by one who had made a contract of purchase and taken possession, but failing m the payments, gave up the premises on demand of the other.</p>

<p> Conversion, Possession, Executions. </p> <p>Case state¿'</p> <p>conversion, The plaintiff who procures fcvy^rocess against one person on the ™fn" causes them to be sold, is conversion’ whether he take the possession or not.</p> <p>fóPassumption over gootls where-owner i^de-privod of their posses-iooet'sonoi61 m person or by instructions to an other, is a sonversion.</p>

<p>Executors, &c. Assets, - Set-off in Equity., Pleading in Chancery.</p> <p>Purchaser of teal estate of an intestate, directed by private statute to be sold commis-money to be. collected and as-sots, may set-i’**’.111 ectuity against then‘>°n de-theiT intestate, which cannot assets, and which are Mother claims which appear against the es-tcVtG and «o enj0]n ajudg-ed by the eiTibr'th™" purchase md-D°y-</p> <p>It is not nu-¡f^e^the^ billin such case, that a¡5!1jnsj. the enti-tiod t° proce-once‘</p> <p>Where there aro such de-™t-offcannol be allowed; but tho do-fence must be answer” and shown by the defendants.</p>

<p>Appeal from, the Greenup Circuit; William P. Roper, Judge.</p> <p>Attachment. Case 16.</p>

<p>Conveyances, Covenants, Sheriffs’ Sales, Parties, Hearing in Equity. '</p> <p>Allegations of the bill a-Answer of Kelsoe, and demurrer of. M?'dismissed as tc/tho de-njurraat.</p> <p>deed of' conveyance tbe°ob]if0r5 to convey, in the clerk’s of-the’knowl°Ut ea^e 0p the obligee, and him does not pass the title,</p> <p>a" sherilf’sSe< sale of the lanii as the the^perlorft® whom such conveyance 1„s_'Ltte“pted’ thing, and the obligor bowidfor th title! °r 6</p> <p>^¡ler@ there ¡s negligence on the part of • ing’ the proper parties or the^ourt'Tis bill may’be dismissed; always bef* without pre-t ^0111'0649.</p> <p>It js a settled rule, that a suit in chan-carfbiTdeter-mined as to part, and continued as Gbabdl Y pdl ties. 1 Monroe 110.</p>

<p> Sheriff, Executions, Bonds. </p> <p>¿ot 0f tj,e deputy sher-““king ^00l]s under a fieri facias, with-tisenfentfis a breach of the condition of</p>

<p>Contracts, Bank JVofes, Damages,</p> <p>An undertaking to pay so many dollars /“ in notes receivable at the Bank of Cincinnati or office of the Miami Exporting Company,” is an engagement to pay the paper at par.</p> <p>An .acceptor of a bill in suoh form is liable for non payment, for the specie value of so much paper in numero, when due, & no more.</p> <p>Evidence to prove that value is of course admissible-</p>

<p>Bastardy, Mahons, Jurisdiction.</p> <p>In cases of bastardy, motions may ^ county court by anindi-the purpose by an order of tainrtthe fa" ther and hie surety, to re-C0VCT the ,in" "their U bond; for whether such erroneous or not, the court having ^themibiect, ¡t ¿s not void!</p>

<p>Executions, Variance, Replevin Bonds, Executors, frc.</p> <p>Case-stated.</p> <p>The law is the authori-exeoutionthe guide to the officer, in plevirf bondf</p> <p>Where there variance, it'is fatal, and the bond may be quas e .</p> <p>Case cited.</p> <p>proper right, taken on an execution in administra-topi is erro-s ‘ Replevin bond to plaintiffs in their fee quashed.</p>