Volume 19 — Kentucky Reports

<p>Error to the Harrison’Circuit; John Tíitmele, Judge;</p> <p> Deeds of Trust. Consideration. Fraud against Creditors. Notice to Purchasers. Mortgages. </p> <p>J3uIhorilies died in the brief. — Stephens vs. Bell, 6 Mas?. T. R. 339- 13 Viner 522. Murray vs. Biggs 15. John. 571. Roberts on Fraud Ch 4 !>2 436-7. Chancellor of Oxford's case 10. Co. 56-7. I Binney 502. Wilks vs. Fanis. 5 John. 335. 3 Cranch 89 &c. 3 John. Ch.Ca. 450.</p>

<p>Moxioft, Case 2.</p> <p>Statement.</p> <p>Writ of error lies to only final decisions. An ordof of the county court quashing the inquisition ad quod damnum, in a mill case is not such a final decision.</p> <p>The applicant afteisuch an order may sue another writ, and so on till the leave is granted orap - plication rejected ; when, an'd not before, the cas® may be revis ■ ed here-</p>

<p>Error to the Mason Circuit; Adam Beaty, Judge,</p> <p> Belt. Foreign funds. Action. Covenant. </p>

<p>StJMMART. Case 4.</p> <p>The poceeding in the county court for the release of an apprentice must be in his name, not his father’s.</p>

<p>Covenant. Case 5.</p> <p>Statement..</p> <p>Covenant declared upon.</p> <p>Assignment of ■¡breach held iítsuffoicBt.</p> <p>When the breach may foe assigned in the words of tbe covenant, and when not.</p> <p>-An -agre ement to deliver a certain quantity ofan article, at a certain place, on or before the fii st rise in the Ky. river rrfteraeertain</p> <p>date, “at one shilling per bushel,” is not a covenant to deliver the article absolutely, but oa condition the- price" bothen and there tendered.</p> <p>Declaration onsuchaoovV^mcnt* or atender of the money at artidebo-11'8 came duo</p>

<p>Debt;, Caso 6..</p> <p>statement,</p> <p>Condition of (ie" o ,uet upon.</p> <p>Aasigumpnt mi breach.</p> <p>lodgment of ■ be Circuit Court against the declaration.</p> <p>The condition of an appeal bond to prosecute the appeal with good effect, and pay all costs and damages awarded against him, in case the judgment should be affirmed, is not brolren by non payment of the judgment rendered by the Circuit Court against appellant, for all the costs in both tribu- ' nals, an attorney’s fee excepted.</p>

<p>Trespass vx et AHMIS. Case 7.</p> <p>Statement-</p> <p>Judgment on special plea.</p> <p>General issue with leave pleaded..</p> <p>Facts in evidence to the jury.</p> <p>Instructions and exceptions.</p> <p>Successful claimant after judgment in ejectment may enter, though the case b.e within the occupant laws, and tho’ proceedings be instituted and undetermined to the recovever for the improvements.</p> <p>Idea of libcrnum tenementis, & no more to a declaration for breaking plaintiff’s «lose, and beating him, his servents and horses is ill, these allegations must be answered.</p>

<p>jiBSÜMPÜl'I'. Case 8.</p> <p>Statement. The declaration — Interlocutory judgmout by default and writ of inquiry.</p> <p>Damages assessed on first count & verdict on the others foi defendant.</p> <p>Judgment ar. rested on defendant’s mo. tion, and declaration amended.</p> <p>Plea; trial; verdict and judgment for defendant.</p> <p>Errors assigned.</p> <p>If pluintiii' amend his declaration, after judgment has been arrested on defendant’s motion,andhare another trial, he cannot afterwards assign for eiror that the court erred ia ar. resting the judgment.</p> <p>Amendment of a plea demurred to after judgment for demurrant is an abandonment of the plea so decided against, and a waiver of the error ill the judgment agaiustit.</p> <p>On parol proof of defendant’s confession of a contract, witness stated that in same conversation, defendant said it was in writing and in plaintiff’s possession, the court should instruct the jury, if they so believed, the law was for defendant.</p> <p>To obtain a. new trial on the ground of surprise, by an article of evidence, the affidavit should shew at least that the contrary could be pro- ’ ved on another trial.</p> <p>Executors or administra, tors,plaintiffs, are not liable to judgments for costs of suits on caus. es of action alleged to have been made with the deceased, though determined for defendant.</p> <p>Judgment reversed as to the costé.</p>

<p>Error to the Clarko Circuit'Court; G-eo. Shakkon, Judge.</p> <p> Assignee. Obligor. Parties. Assignment. Set offi Evidence. Pleading. </p>

<p>flfíANCERÍ. Case IP.</p> <p>Statement.</p> <p>Eccreeof tho circuit eouFt.</p> <p>Equity has not jurisdiction to enjoin the sale of slaves or other chattels, seized by fieri facias, on the application of a third person claiming the property.</p> <p>That a claimant in such case is a -trustee does not alter the case. In contests with strangers, trustees hove no more right to go into equity than absolute owners,</p> <p>The opinion in McGihty vs. I-Iaggin, 2 Bibb 256, was not the final decision, and on this point; is not law.</p>

<p>Error to the Rockcastle Circuit; Benjamin Eve, Judge.</p> <p> Evidence. Statutes. Contracts. Recital. Covenants.Merger. </p>

<p>Assumpsit, Case 12,</p> <p>Case stated.</p> <p>Defendant’s motion, for the jury to disregard a count as ill, ■overruled-</p> <p>Count, tho’ ambiguous und inartificial, hold sufficient.</p> <p>Motion for g°s" overruled,</p> <p>The count,</p> <p>.</p> <p>Count in iru, debiiaius m-</p> <p>sumpsit., for work and labo'r &c, is not made different in effect by omitting the averment, that the defendant became thereby liable, and in consideration thereof,promised to pay the value, and in lieu thereof, avering that he promised to pay a sum certain.</p> <p>In either case It is not necessary to prove a promise to pay the sum stated — the value proved may be recovered.</p>

<p>Covenant, Case 13.</p> <p>Statement,</p> <p>Assignment of not8‘</p> <p>Covenant tie* cIaredupon„</p> <p>Assignmentof breaches in de°kration.</p> <p>w!)sr0 ¡¡ ap. pearsfromtho instrument (habits ¡e";ü import might bo changed ^¡«ng therejn aiiudort to such writing must be proffered, otherwise not. See Trustees Perryville vs. Letcher, X Monroe 12.</p> <p>In a declaration on acovenant“to pay-400 gallons whiskey in good casks as speciliod in our agreement of (his date at forty-two cents per gallon,” there need not be proferí of the agreement referred to.</p>

<p>Appeal from the Fayette Circuit Court, Jesse Bledsoe, Judge-..</p> <p> Parties. Pleading. Misjoinder. Demurrer. Error. </p>

<p>illiTINOE, Caso 15.</p> <p>statement.</p> <p>Evidence on the tiiuh</p> <p>Instructions moved and overruled, & exception.</p> <p>Where a gift is made to au infant, and the father takes the possession, he holds as natural guardian, and the possession is (he infant’s, aud so the case not within the statute to subject (lie property to the creditors; of the father.</p> <p>Motion for new trial •overruled.</p>

<p>Chakcebe. Case Ifi.</p> <p>Statement of the facts of '.he case.</p> <p>Bill with injunction.</p> <p>Perry’s answer.</p> <p>Weisiger’s answer, and cross bill.</p> <p>Murray’s answer to Weisigei’s cross bill.</p> <p>Decree of the circuit court.</p> <p>Husband’s as sigmnenf to his wife of an obligation for conveyance of land is ineffectual.</p> <p>Meretricious connection between a man and wo man does not disable her from rpceivins: of him by gift or contract.</p> <p>Future co-. habitation is a vicious consideration, & contracts upon it may be rescinded by the party, oí those claiming In privity under him.</p> <p>Purchaser of land with notice of an out-standing obligation on the grantor to convoy it, stands in situation of grantor.</p> <p>That obligee for conveyance of land, after assignment of the bond becemes indebted to one who afterwards acquires the legal title, is no defence to the bill of the assignee for the title.</p> <p>Indebtedness after the time of a transfer of any property, is not itself sufficient to prove the transaction fraudulent as to eredilors. No transfer of bonds for land, prior tv. the act of 1921, could have been in fraud of «editora,</p> <p>Equitable inwenfnot suhjeottoexecution, nor to ffiJefrisbv* any other moans, prior $*•"»«*</p> <p>Set off in equity refused.</p> <p>Possession of ouTussi'm*11' mont'wfll not authorize its off wlfhout making the obligee a par-N-</p>

<p>Cross appeals from the Henry Circuit; Henry Da vidge, Judge.</p> <p> Occupants. Bar, by former decision. Mistake. Negligence. </p>

<p>Appeal to the Breckenridge Circuit; Alney McEean, Judge.</p> <p> Specific performance. Condensation. Bar by lapse of time. Executors. Heirs. Infants. </p>

<p>Error to the Bracken Circuit; Adam Bbattv,Judge.</p> <p> tPleading. Frauds and Perjuries. Variance. Consideration. </p>

<p>Chancery , Case 20.</p> <p>The action at la:v on tho covenant.</p> <p>Chancery suit and deoree of the circuit court.</p> <p>Allegations of the bill.</p> <p>ed oil a bond, for"the°convejanoc of land, «vbere Equity may, in a proper case, relieve against a judgment at Jaw, rocovertias becufoconsionedbnf only. / 2 apse of time'</p> <p>The chancel will reHeve in do such case, where the judgment has been fairly obtained at law, by the mere negligence of the party, and afterwards the chancel, lor is first appealed to.</p> <p>That covenantee, in such case, retained possession after judgment, leased the land for a term of y ears, and offered to sell it, does not vary the case.</p> <p>Covenantee, notwithstanding his judgment at law, which dissolves the contract, has his lion , on the land, & may keep possession till judgment is ' .satisfied.</p> <p>To let in proof (hat covenantee had mortgaged the premises, the fact must be aver-cc. in pleading, and then the deed, not parol proof, must be produced.</p> <p>Rents above the value of the lusting improve ments must be accounted for in such case.</p> <p>General prayer for relief sufficient to embrace rents.</p>

<p>Error to the Clarke County Court.</p> <p> Mills. County Courts. Statutes. </p>

<p>Error to the Clarke Circuit; George Shannon, Judge.</p> <p> Sheriff’s return. Habere facias possessionem. Restitution. </p>

<p>Chancery. Case 23.</p> <p>Statement of facts.</p> <p>Breckenridge’s biF, decree and purchase,</p> <p>Overstreet’s bill.</p> <p>Todd’s billl-</p> <p>Brocken. ridges’ answer.</p> <p>Shreve’s deposition taken & read without objection-</p> <p>Assignment of error..</p> <p>Deeds of convovanoe acknowledged and lodged to lie recorded, though not then copied on (lie record hook,have the effect of enrolled deeds from the date of their acknowledgment.</p> <p>Deed recorded on the acknowledg ment of grantor, is presumed to have been deliver ed on the (key it bears date; an allegation (hat it was aniedu'ed, mn-‘ be proved.</p> <p>A prior deed, subsequently, but in time enrolled, is superior to tbe younger deed first enrolled, under both our mui the British statute.</p> <p>Deed ofir.oitgage is it«cU‘ evidence of tbe consideration expressed in it against tbe mortgagor, all claiming under him by subsequent conveyance.'</p> <p>Where one party in an exchange, alleges in his bill for a resci' sion that the other bad no title,(he proof of title is on defendant, & be must show his papers, & unless the title appears, the rescisión will be decreed.</p> <p>In such case, a third person holding a mortgage on the estate conveyed by complainant, could resist the rescisión if his mortgage tvere older than complainant’s,— otherwise not.</p> <p>Here an assignment of error questioning the decision as to the priority of the mortgages, & their consideration does riot reach a decree. rescinding the con-. tract.</p> <p>When a deposition is unimportant, below"will? out objection, its having been read is not error.</p>

<p>Appeal from the Mason Circuit; Adam Beatty, Judge.</p> <p> Occupants. Constitutional law. Judicial decisions. </p>

<p>Dwwuis, Cas^-SS.</p> <p>statement,</p> <p>Enquiry info, ^ weight of reused,'be”00 cause It wan for the jury to ^601116'</p> <p>The motiven of the jury ought not to bo pried into they can have 510 effect in a motion to set asido their verdict.</p> <p>i,n detinue for ívm horses, tho verdict for plaintiff must find tho separate value of ooch h orse. Where,in detinue for several things, the jury find the value of the whole in one sum, omiting to fix the val. of each article, the verdict will not be set aside, but a writ of enquiry awarded to assess the separate value.</p> <p>See 1 Dig. h. K. p. 254.</p> <p>Mandate, for the finding as. to the value to be set aside and new inquiry, as to, that to bo had. — As to. the damages, the verdict-stands.</p>

<p>Error to the Jessamine Circuit; Witxiam L. ICETX.y, Judge..</p> <p> Judgments of Sister States. Justices of the Peace,, Jtecords. Assignor and Assignee. Assignments.Pleading. Evidence. Practice. </p>

<p>Covenant-. Case 27.</p> <p>Statement.</p> <p>Covenant Go- ' 'laieil upon.</p> <p>Assignment of bleaches.</p> <p>flea.</p> <p>Evidence. 5nstructions& Exceptions,</p> <p>Discussion & constructs cin of tiro words 0f thecovenant.</p> <p>bound in law Purchaser of a terra for years, is to surrender to the rever-sioner, not the vendor.</p> <p>anact^aiasi A covenant ought not to be construed 1.3 W.</p>

<p>Error to the Fleming Circuit; Adam Beatty, Judge.</p> <p>Lessee. Lessor. Assignee. IIdense.</p>

<p>jpOyjlNANT. Case 29.</p> <p>Coyenant declared upon.</p> <p>Declaration on the covenant, held insufficient.</p> <p>An obligation to an attorney, on condition he shall succeed in. a suit for obligor, is not made absolute on his representatives by the death of obligor preventing the success.</p> <p>$or after its' -revivor, in name of the heirs by the attorney with their consent, by a compromise made by the heirs, and consequent dismissal of the suit without his consent.</p> <p>An attorney V power ceases on the death of his client, and a revivor of the suit afterwards in the name of the representatives without their authority, is unwarranted— And—</p> <p>Where the attorney does revive the suit, and acts for the representatives, his claim is on his engagement with them, not on his contract with the deceased .</p>

<p>Appeal from the Nelson Circuit; Paul I. Booker, Judge,</p> <p>^ac^'or' Principal. ■ Purchaser. Assignee. Lien.</p>

<p>Appeal from the Breckenvidge Circuit; Alney McLean, Judge.</p> <p> Assignor and Assignee. Warranty. Vendor and Vendee. Practice. Surveyor. Rescisión of contracts. Compensation. Injunctions. </p>

<p>lirror to (lro Ohio Circuit; Alney M’j.ean, Judge.</p> <p>Justices of the Peace. Jurisdiction. Bail, llecogiúOunces. Seals.. Construction. Statutes.</p>

<p>Appeal from the Hardin Circuit; Paul I. Booker, Judge.</p> <p> Evidence. Statute of Frauds and, Perjuries. </p>

<p>Error to thp Breckinridge Circuit; Aleev M’Lean Judge.</p> <p> Equity. Mistake. Usury. </p>

<p>Error io Hie Breckenridge Circuit: Alney M’Lean, Judge:</p> <p> Warranty. Vendor and Vendee. Provisions. Evidence. Onus Probandi. Jurisdiction. Set-off.. </p>

<p>Error to the Madison Circuit; George Shannon, Judge.</p> <p> Wills. Widow. Hatch Pot. Slaves. Covenants for land. Interest. Retainer, legacies. Heirs. Decrees. Executors. Statutes. </p>

<p>Chancery. Case 37.</p> <p>Holder and ^aylor’s ry‘</p> <p>draham’sentry called for Taylor’»™"11* 1</p> <p>Howard’s entry called for in Graham’s.</p> <p>Construction and figure given to Howard’s entry.</p> <p>Tho subsequent entry may, -for it purposes, cure an uncertainty in the entry its calls to adjoin by an addition to the description of an object. See 1 Mon'roe, 140.</p> <p>To malte out: title under a sheriff’s conveyance, under a sale by execution aSfasnst the heirs of one of the- patentees Jhe death of patentee, and that defendants in the execution are his heirs, must be avored and proved, and the judgment produced.</p> <p>Decree reversed, for want of proof of title on part of the complainants with costs, and directions for the proper parties to bo made, or cause to be shown why it cannot be done.</p>

<p>Error to the Clarke Circuit; George Shannon, Judge.</p> <p>Guardian and Ward. Slaves. Heirs. Executors. Ordinance of Congress. JV". W. Territory. Practice. Pleading in Chancery. Exceptions. Commissioners’ Reports.</p>

<p>Debt. Case 39.</p> <p>Agreement between Goodwin and his creditors.</p> <p>Brigham and Bigelow extort from Goodwin the obligation sued on,for their consent to the composition of Goodwin with his prodi tors.</p> <p>Assignment of the obligation.</p> <p>Pleading and submission to the court.</p> <p>Judgment of the court against Goodwin.</p> <p>Ail obligation given by the debtor to one creditor, without the knowledge of the other-', as the price o!' liis consent tii a general oornpb sitio», and release of the debtor afterwards executed, is invalid.</p> <p>So is an obligation, in such case, executed after the debtors assignment and creditors re-lea re to him, if given in consideration of a previous private arrangement.</p>

<p>Error to the Garrard Circuit; John L. Bridges, Judge.</p> <p>Frauds against Creditors. Stahites. Pleading. Error*</p>

<p>Assumpsit. Case 41.</p> <p>Statement,</p> <p>General issue and special pleaby Staves art‘</p> <p>Replication to the special pica.</p> <p>Instructions moved and overruled.</p> <p>The lime in tho slal’ite of limiiations is computed from the accrual of the action to the comrnencetnent of suit, not from the contract or receipt of the consideration to the trial.</p> <p>Statute of Limitations must be specially pleaded.</p> <p>Issue on a ' plea that“the goods were sold and delivered by plaintiff as articles charged in store account, and defendant did not promise to pay within twelve months .next after their delivery,” is wholly immaterial.</p> <p>The party-committing-the first fault in making up an immaterial issue can complain of no error of the court' in refusing to give instructions touching such issue.</p> <p>Illness of defendant which prevented his prorating the attendance of material wit-, nesses or his being present himself to move for a continuance, is a sufficient ground for a 3ew trial;</p>

<p>¿'itAKCSiar. Case 42.</p> <p>Hafon7s will.</p> <p>Allegations off the bill,</p> <p>EmorspnB answer,</p> <p>Oeeroe'of theoirGUl(: 00iIlt'</p> <p>To give chan- or:rJ jurisdicofdefoctof5 proof, the fact sought t» od, miisTrest' exclusively ihtheknowlaofendañte& be susceptible; of no other identity of slaves 'is not su°bafec<_</p> <p>Devíseos of (lie remain? dor in slaves, after tlie life estate to the widow is de(erorined by Jicr (loath, to maintain a suit for tlieir recovery, must have (bo assent of the personal representative, or shew in chancery it .is causelessly withheld.</p> <p>Shewing the death of (lie administrator with the will annexed, in such care, will not avail, for (bon there rhonld lie an ailrmniistriitor bonis non, Me.</p> <p>An administrator <?e bonis jnon, appointed by tile pqursiy court of Virginia, since the separation, with the will annexed, which hart been p-oved and tmorded in rhe court before ihe separation, may, under the compact, maintain a suit in this State, for slaves brought hero by defendant since that period.</p> <p>Remainder-man after a life estate, suing for •Slaves, rpustprovo, if not admitted, the (loath of (he tenant for life.</p> <p>Where the pretext for (ho jurisdiction is a discovery, anfi tho foci: '•ought fully aopciU..; by com ¡dainaut's own proof*, he defoais liiflt*</p>

<p>Appeal from the Jefferson Circuit; John P. Oldham, Judgfe.</p> <p> Entries. Notoriety. </p>

<p>Appeal from the Jessamine circuit; William h. Kelly/Judge.</p> <p> Guardian and Ward. Jurisdiction. Settlements. Commission. Interest. Parties. Statutes. </p>

<p>Appeal from the Bullitt Circuit; Paul I. Booker, Judge.</p> <p>Lien. Stock. Corporations. Seal. Purchasers. Notice. Jurisdiction. Specific Performance. -</p>

<p>Lxror (o tho Bogan Circuit; Henry P. Brobnax, Judge.</p> <p> Pleading. Nonjoinder, abatement. Demurrer. </p>

<p>Chaucer?Case 46.</p> <p>Bill by the heirs of Terrel on their entry against appellants holding under distinct legal title-'.</p> <p>An averment in the bill, after sotting out the entry and avering it possesses the qualities .require'! by law, that “the complainant has had the samo surveyed and obtained thereon a patent” is to a common intent an averment that the survey wns made according to the entry.</p> <p>Hairy, its á^riifiícatiou.</p> <p>The name o f one bf the heirs complainants which had peon omitted on filing the bill may be inserted with the otters by leave of the ciourt.</p> <p>JDofendent'sin saoh case who had answered inay after-wards amend.</p> <p>In a bill on an entry for a release of the legal title to land possessed by tho widow holding a life estate and in which the heirs of her husband have the reversion the licirs must be made defendants.</p> <p>Where dofefidaa(s hold unc^ claims-suit may bo dismissed as *°aa°m0°r’ f?¿. tiés and tried on the merits g*sto t!lc oUl*</p> <p>William Es-, entry of haMsuifi“cs oient.</p> <p>James Esiill’a of 60(J</p> <p>■Tolin Tor-roll’s entry of 450 aceres.</p> <p>Complainants qniry.</p> <p>An entry to iio on a creek above a prior entry fixed on a branch rao» ning into it nt right angles and binding on the creek, shult include the orcclcbnl he on the same sale with (lie other entry and e\1< nil out on its upper line as to the creelr,mul up the cede, equal (listanees, on direct (ím;s ¡or quan^i- ■</p>

<p>Deceit,</p> <p>Case 47.</p> <p>Case stated.</p> <p>ÍVhcre dofen. lant has boon it oils term n such deiiult in deading, hat pliiintHi night ha ya :nkon judgment for rant of prose? plea, . .ylivii defoue.miant, at v, subsequent :orm, illas a. sroocr pica, daiuüíf mu rave a con - ■ .ini-ansie far -hat eaa-c >u!“\</p> <p>Non assumpsit and non assumpsit within five years, in an action of iort, are nought, and plaintiff may take judgment'as for want of a ploa.</p> <p>After trial of issue on such pleas and re-pleader awarded, and appropriate plos-S are filed ata subsequent term, plaintiff has a right to a «ontinuanee.</p>

<p>Trespass.</p> <p>Case 48.</p> <p>Whore several damages arc assessed in trespass, plaintiff may take judgment for'the greater snni against him or them or whom they are assessed, but cannot have several judgments.</p> <p>The plaintiff in cas'e, of several but eqnal damages assessed in trespass against two, may enter a romittitur of the, damages as* to one, and • then take * j udgment againsl both, for the dam-, ages assessed against the other—</p> <p>Or he may enter a noli prosequi against one and take a judgment for the damages assessed agaiiicl the plhcr only-</p>

<p>Error to thp Estiil Circuit; George Shannon, Judge!.</p> <p> Covenants. Pleading. Impossibilities. Evidence. Damages. </p>

<p>SUMMARY, Case SO.</p> <p>The question stated.</p> <p>See 1 Dig, U K. M7, f29. Where it do-es not appear the intestate had husband or wife, the county court', shah administration to any distributee applying without competition, qualified to manage tho estate.--</p> <p>Tho election of an administrator, tho eounty court may make among tho distributees after the husband or wife of (leceasud, must bo eonfincrl to the applicants, for it is only toan applicant administration can be granted.</p> <p>Slant!ate for administration to be granted ap■pollant.</p>

<p>SuffiMARY</p> <p>Case .01.</p> <p>Letters of administration granted appellant.</p> <p>On same day, after appellant had departed, and. there liad been a change in the members of the court, the letters arc revoked & administration granted appellee.</p> <p>Where the intestate has tio husband oi wife, the county court, shall grant letters of administration to such, one or more in their (ilicmion of (áe distrifcutecs'í;j;¿ovc/''V. np.-’fi.v'if</p> <p>'Vhb court having granted administration to a daughter who applied alone, cannot afterward», on the same day after her departure, & a change of the justices on tile bench, revoke the grant to her and re-grant the administration to a ^on without a legal cause.</p> <p>Where the court has not regularly executed its power in granting the, administration; where (here has been fraud in obtaining the, grant, or the administrator becomes nan compás, or otherwise incapable; the letters maybe revoked.</p> <p>That the son was not present when the court granted the administration to the daughter, is no cause for the court after her departure, on his application, to revoke the grant to her, and grant him. the letters.</p> <p>Orders of the court revoking and re-granting the administration reversed.</p>

<p>EjectmentCase 53.</p> <p>'Case stated.</p> <p>Plaintiffs’ evidence;</p> <p>Defendants’ evidence.</p> <p>instructions to Uiejury on defendants’ motion.</p> <p>Right of entry does not. accrue until tbe date of thq. grant from tbe State, and not till then docs the 20 years’ limitation, by act of ’S6, rommeneo. 2 Dig. L. K. 860, i■>.</p> <p>Where the • right of entry descends to heirs whó aro all within the exceptions of the act of >06, they had, by that act, 10 years after the disability is removed from all, to eater or sue,.</p> <p>Where the ancestor’s right of en* try had been preservad under the act of’9fionly, by his absence from the State,the infancy of his heirs will Dot avail •¡.hem..</p> <p>The hoiTs must 1)0 all trader disabilities when H)o right of entry descomí?, and then they had, by the act of’96, 10 years after disability was removed from a.1).</p> <p>The act of • ?8!4only reduced Oie limitation to Ibe right of entry, aftef ibe disabilities are removed from ail, from tea to three years.</p> <p>An error in instructions, is not cured by the court afterwards instructing' directly the contrary, and so leaving the jury to digest the contradiction, the error should be-retracted.</p>

<p>Error to the Clarke Circuit; Geo. Shannon, Judge.</p> <p> Currency. Money. Judicial notice. Words. Constructions. Banks, diction. </p>

<p>Error to the Montgomery Circuit; Silas W. Robbins, Judge.</p> <p> Statutes. Damages. Construction. Pleading. </p>

<p>Error to the Madison Circuit; George Shannon, Judge;</p> <p> Conditions, Elections. Currency, Statutes. .Damages. Practice. New Trial. Error. </p>

<p>B,jentTcreditSr^to subjedt stock subdebto^for and in the names of hi! cblWrcn-</p> <p>Stock subscribed and paid for by tin-father, for and in the names of his children, ■without valuable consideration, and whilst he was indebted to insolvency, .is not subject to bis creditors, under the statute ajrainst fraudulent conveyances.</p> <p>That Act applies only to alienations of 'property not money, before debtor's, and subject to his creditors, and makes the aliena lion so void, that fhe properly may be seized and sold.</p> <p>Putitdoosuot reach property, which never was the dcblor’s, nor money in any caso.--Nor properly, purchased by debtor in name of oihi :r persons.</p> <p>Tho Act of 506' reguj.itins; conveyance--, 5 subjects to creditors, estates held in trust for debtor, (•.'■here declared, by common law process, when secret, by bill in equity, 1 but does not reach tho case, where debtor has himself no interest.</p> <p>Act of 1821, subjects dioses in action belonging to debtor, not stock or other choscs he may have purchased with his money, for and in "the names of his children, for their advancement.</p> <p>The common law, unlike the statute, looked only to the right of creditors at the dote of the transaction; subsequent creditors could . not assail (ho conveyance.</p>

<p>Ejectment.</p> <p>Case 68.</p> <p>Sta temen!.</p> <p>Defend ant V evidenco.</p> <p>Plaintiffs evidence.</p> <p>instructions of tho court touching the ■title.</p> <p>instructions as to the seven years limitation law.</p> <p>In a grant by statute, any language which expresses the legislative intention to invest the party with the title, is sufficient-“:lim the land &c. shall be, and the same is hereby vested, is effectual.5’</p> <p>Statute declaring the land surveyed for the Seminary, to be vested in trustees for its use is effectual, and no other having right, passes the title.</p> <p>In the general statute of limitations, the 20 years is computed . from the date in the oocupaut’s adverse possession, when the right of entry accrued under lessor’s title — as thg date of th^ grant.</p> <p>The seven years, in the act of 1809, 'Taudoou-U" tinua! resi(fenceon the claimantth° lli'msc-ii,under an adversary ■"rl)^fenrey’ pa ’-n •</p> <p>Whorcthetiícfthe'ooou-^ pout, is a grant by statute, the seven .years limitation law ¡loes not apply.-—</p> <p>This limitation applies only where the adversary possession is, by actual residence of the claimant himself — —.</p> <p>It does not apply where-both parties claim under the same survey.</p> <p>Register’s endorsement on the copy of the survey, and his certificate of tl.o time of the registration of the claim objected to in the circuí,*court.</p> <p>It is propel for the Regis • ter, though ' not expressly required by the statute, if endorse on the surveys when received inio his of-¡10.: — & in do-in'! so, be acts niikiu his sphere, because necessary (o discharge his duty iu the mailer.</p> <p>Copy of such nu endorsement, cor;i(iiaiJ by the Register to be a true copy, is competent evidence — his mere certificate of ilia date of the registration r'nol.</p>

<p>Petition' fc Summons. Case 09.</p> <p>Bromisory note for current money of Kentucky.</p> <p>in (he expressions iu Chambers vs. George, 5 “Littcll, 335, payable ia the money of this State,” there is a typogru pbieai error; it should read “currency of this State.”</p> <p>Currency, when bank notes is the o ily currency, does not moan money.</p> <p>But “current money ofKontuoky,” docs, mean money.</p>

<p>Error to the Clarke Circuit; George Siiannox, Judge.</p> <p> Assignee and Obligor, Parol Contraéis. Statutes. Frauds and perjuries. Specific Performance. Rescisión of Contracts. Parties. </p>

<p>IteCEIT.</p> <p>Case 61.</p> <p>Question stated.</p> <p>In a declaration for a cheat in an exchange of horses, it is not necessary to give a particular description of the unsoundness.</p> <p>So is the rule in an action on the warranty, in suck case.</p>

<p>Covenant. Case 6SÍ.</p> <p>Covenant sued upon.</p> <p>Declaration.</p> <p>¡Rea in bar.</p> <p>Judgment of ihe circuit court.</p> <p>Declaration on an obligation to pay &c. 6o soon as obligee takes up a note to a third person, on which obligor was endorser, averring that all but a certain part had been paid, which defendant had released him from, because he had deposited the money in his hands, is sufficient.</p> <p>Plea to such a declaration, that defendant had executed no written release, is insufficient</p> <p>Substantial and not a lit-oral performance of such a condition, is required.</p>

<p>Error to the Madison Circuit; George Shaknos1, Judge.</p> <p> Recognizance for Judgments. Onus Frobandi. Variance. Clerical Mistakes. </p>

<p>Krror to the Clarke Circuit; Geo. Shaknok, Judge.</p> <p> Pleading. Warranty. Demand. </p>

<p>Asbvxpsm Case G5.</p> <p>Assumpsit for i^by'de-111" fondant to he paid plaintiff, third person, and sold and Sefondant.</p> <p>In such case, plaintiff lined not proilncc, nor require defendant to produce tlie note sol.'l, but may prove* the existence nwi pale of it, by parol ovidcuce.-</p> <p>The distinction i-: hn~ tween the. contents oCihc instrument as evidence of a contract, and exilíente of it, as r thins; and subject of tho contract to be proved.</p> <p>Where the counsel of defendant had (he paper at the nominen cement of (he (rial, notice at the bar to neodn on it, is sufficient to authorize plaintiff lo prove its content;, tinless its presence be. denied on oath.</p>

<p>Cross writs of error to the Madison Circuit; George Shannon, . Judge.</p> <p> Nolle Prosequi. Judgment. Pleading. Officers. Executions. Evidence. </p>

<p>Chancehao Caso 67.</p> <p>Benton’s purchase of Farrow’s settlement and preemption.</p> <p>Sam’l.Mitcholl’s.purchase of Bentdn. His sale of 50 aeres to Maupin, and authority to White to sell the residuo.</p> <p>Richard Mitchell’s purchase from Sam’l. Mitchell,</p> <p>White’s sale, and conveyance -of the whole to Maupin.</p> <p>Richard Mitchell obtains the legal title.</p> <p>Maupin’s Bill vs. Furrow, Benton and tiie Mitchells, as absent defendants for the title.</p> <p>Rioliard 'Mitchell’sappoaraucc and answer.</p> <p>Decree of the circuit court.</p> <p>Allegations of an answer not responsive to the bill must be proved.</p> <p>Deeds of conveyance prove the facts ¡.hey recite — between the parties, not others.</p> <p>When deeds from other persons 10 one of the parties me introduced by him, they only prove that ‘ such deeds were executed.</p> <p>Where a faot charged in the bill and not denied in the answer must, if true, be in defendant s knowledge, it must be taken as true.</p> <p>On the admission of a bond for the conveyance of land, saying nothing of a counter boqd for thp purchase money, Ihe presumetion is, it has been paid.</p> <p>Two witnesses not required to overturn an answer whore the fact may not be in defendant’s knowledge.</p> <p>An attorney empowered to soil anti convoy all of ce'rialn lands not before sold and convoyed, may convey n parcel before sold by principal.</p> <p>Bill for (ho legal title by bargainee against the bargainee who had executed a deed, ■without having: title vs. persons, on whom alien- or bide! obligations, and another who had improperly obtained the conveyance to himself from them, is not a suit for specific performance, and to bo governed by i.ts principios.'</p> <p>It is necessary, in a, bill for specific performance, to shew the consideration paid.</p> <p>But when the defendant holding the legal title has attain ctl p in such manner' as not to be entitled to stand in the shoes of vendor he cannot, raise the question.</p> <p>In such case, tho acknowledgment of tho consideration in the deed of vendor to complainant, is at least prime facia against him.</p> <p>Defendant having agreed in’ consideration of plaintiff’s withdrawal of an assignment of error as to tho regularity of the proceed, ings to pay the costs— decreed accordingly.</p>

<p>Error to the Madison Circuit; George Shannon, Judge.</p> <p>Attorney. Counsel. Client. License. Warrant. Practice., JVbw Trial, Error, Costs. Damages.</p>

<p>Beet.</p> <p>Casé G9.</p> <p>Debt on a bond, for security ofc sirs of a suit by a uon-residont in the circuit court, payable to one defendant, “Robert Tinchener,” &c,. “and al! the officers of tho Madi'on circuit,” in (be iuine of Tinchener only.</p> <p>Tho oilier defendants in tho suit arc not obligees in the bond.</p> <p>One may take by deed or bond by a description of him individually, but an “<icc.” added <o the name of one obligee is ineffectual, because doRcriui ivo of neither cl css nor individual.</p> <p>Action must bein she name t^obligeo1S tho’ the1 Condition of the b°N^ wholly for the benefit ofothers></p> <p>Any descripr „ by his office, dignity, or re-cient in a ^ convoyante ^ethe^ac”* curate or'not so the persoir o^®reIaJ</p> <p>,?ii an action on a bond for .costs payable to defendant and all the officers of the ¡Madison circuit court, the officers must unite.</p> <p>.Not in tlieir official but private characters and proper namgs.</p>

<p>iirror to tho Montgomery Circuit; Silas W. Robbins, Judge.</p> <p> Abatement, Obligations. Names. Misnomer. </p>

<p>Error to the Shelby Circuit; Hekky Davidge,Judge.</p> <p> Pleading. Demurrer. Judgment. Record. Ambiguity. Error. </p>

<p>Debt,</p> <p>Case 72,</p> <p>Action of clolit oil a Replevin bond.</p> <p>Demurrer to declaration ovoirulcd.</p> <p>Debt lies on a ronlevin bond, Iho’ execution might issue on it;</p> <p>Alul—</p> <p>There arc ibises of the action being maintained when the bond was invalid under the statute and would not authorize an execution.</p> <p>Where the declaration, in stating the' bond payable three months after date, says nothing of interest, and oyer is given of a bond b.earing interest from the date, the variance is fatal.</p> <p>Where the cause is remanded for further proceedings, such points decided as may probably again occur.</p> <p>Where the process was retu rnpd not found, judgment could not be taken against those on whom it was executed tho’ they appeared to theaclion. Sec Act of 12th Jan. 1825. Pago 178.</p> <p>Whore the plaintiff onrlor-sd liis execution rcvoivablo in currency, and a replevin at the shorter date was therefore taken, ho was so far bound by it that payment of the bond could not be coerced by execution but in such currency,</p> <p>Otherwise, if plaintiff resort. to a new .aoliou.</p> <p>Endorsement for currency, and exooíi-' turn of (he replevin bond is not. a oont raot between (•lie parties.</p> <p>But -■</p> <p>Ffit be, plaintiff ii. not bound after •lele.ndn.nt fails in (he punctual payment of (ho borní, trafile may (hen declino (lie execution, and resort to liis action.</p> <p>Tiio object of tho act was, tilo procr'istinatiou of the recoveny of' the debt; this being attained without holding phiintifffo receive the ctimaioy on tho bond, whether demanded by execution or action, is the bettor construction</p> <p>Thai iht. bond ip cot direct ad to be talara nnyat-U- in currency noT'desi ned to change "he character of the demand.</p>

<p>Case.</p> <p>Case 73.</p> <p>Action for malicious prosecution; trial on not guilty; motion for non suit overruled, and exception.</p> <p>.'Declaration.</p> <p>The evidence’s.</p> <p>It must he shewn in the declaration fur malicious prosecution that the prosecution is determined— —Thisisdone by an 'averment that the grand jury returned the indictment not a true bill ami pl’tf. was thereupon discharged.</p> <p>But—</p> <p>To maintain these allegations, (that the indictment was rc‘ turned not a true hill and plaintiff discharged,) parol evidence is insufficient the record must be pro, duced.</p> <p>Evidence that plaintiff Was carried before the justice of the peace, without any farther account Sí i ho matter, ■will not maintain the action.</p>

<p>Ejectment. Case 74.</p> <p>Action. Par-of eontrovorf,y.</p> <p>Deed of the tticSLand Of. fice offered in evidence and rejected.</p> <p>Registers advprtispmentof non-resif0ern{axitiim lyingiriancw county, delyj^in tie3 ¿id county, is sufficient,</p> <p>Itis not nothrReewter’s deed to recito that the land ¡Jeriis^ac-11 cording to the statute,</p> <p>J4^ fcctVf the” deed of the Register,that, ttn^pursu-" anee of a sale for taxes duly aiVortlsec-</p> <p>on the deed onlt, the presumption is, duty, and if the contrary I’f^thc1*’1' shown, which may be done notwithstanding recital?,</p>

<p>Error to the Estill CircuitGeo. Shannon, Judge.</p> <p> Bastardy. Parties. Jlclions.. Statutory bonds and Recognizances. Statutes* -Relators. County creditors. </p>

<p>Assault & Battery. Case 76.</p> <p>Trial on the general issue.</p> <p>Evidence.</p> <p>33efondant’s objection to evidence—</p> <p>Overruled.</p> <p>Instructions moved by defendant, and overruled.</p> <p>Verdict and j udgmcnt. j</p> <p>Plaintiff can.not prove a greater number of assaults and batteries than are laid inhisdeclaration.</p> <p>Every assault and battery committed af • tor another, and the parties have been Separated, is a distinct cause of action— without regard to the time or distance of the Separatio'n, so it be complete and a return to the combat.</p> <p>Instruction0 touching tin-abettors.</p> <p>Where persons in company with the assailant fail, when in their power, to prevent a merciless battery on a feeble man, tho* they do prevent his being murdered, the omission to intexfere, with other slight circumstances, may convict them all as principals in the trespass.</p>

<p>Error to 'the Estill Circuit; Georce Shakkok, Judge.</p> <p>Pleading. Warranty. Cheat. Election and Gravamen of the Action. Evidence. Allegations and Proof. Instructions. ,</p>

<p>Error to the Madison Circuit; George Shannon, Judge.</p> <p>Commmi, rule. Confession of the leases-. Surrender of' leases, Death of Lessor. Right of entry-.</p>

<p>Appeal from the Boone circuit; John Trimbiís, Judge.</p> <p> Matemeni. Fleading. Former suit pending. Demand. Executors. Heirs. Judgments. Erroi'. Costs. </p>

<p>Érrorío the Madison Circuit; Geo. Shannon, Judge.</p> <p> Evidence. Answer. Suppletory and Coroboraiive Proofs. </p>

<p>Hebt.</p> <p>Case 8Í.</p> <p>Error in the judgment as to i he day on which the interest commenced.</p> <p>Order ofcourt at the next term permit-) ing plaintiff to release the excessive interest.</p> <p>Query — May an error in a judgment on a specialty as to the day of the commencement of interest be amenderl at a subsequent term.</p> <p>An order in such case permiling plaintiff to-release the erroneous interest has itself no effect, nor can it give any additional operation to a release executed in pursuance thereof.</p> <p>An error in a judgment prejudicial to a defendant cannot he cured by a re-, lease of th.a plaintiff.</p>

<p>Appeal from the Franklin Circuit; Hekiut Davidge, Judge</p> <p>Slaves. Statutes of Nexo Yorfy. Construction. In•• ' structions.</p>

<p>Error to tlie Christian Circuit; Benj. Shackelford, Judge,</p> <p>Contract. Demand. Allegation and Proof. Variance.</p>

<p>Error to the Christian Circuit; Bekj. Shvchelvord, Judges</p> <p> Notary-Public. Protest. Seals. Bills of Exchange* Statutes. </p>

<p>CaAKcKur. Case 135.</p> <p>Contract, assignment, and judgment at ’law.</p> <p>Miller’s bill for injunction and rescisión of the contract against Hanks and Hall.</p> <p>Order of publication.</p> <p>Decree.</p> <p>Remarks as io the merits.</p> <p>Parties.</p> <p>In the publication of the order of ad» vertisement, against anab sent defendant, the omission of the terra when the order was made is a fatal defect.</p> <p>The certificate of the publication of the order must shew in what successive months the order was published.</p> <p>The editor of the paper, not his proxy, must certity the publication, and that he is editor must be stated on the certificate'.</p> <p>Decree reversed for new proceedings where there was a want of parties.</p>

<p>Error to the Madison Circuit; George Shaknon, Judge.</p> <p> Evidence. Estoppel. Husband and ffife, Biseontiim^ anee. Right of Entry. ¿Matutes. </p>

<p>Error to the Bath Circuit; Silas W. Robbins, Judge.</p> <p> Non-joinder. Mis-joinder, Abatement. Feme covert. </p>

<p>Error to the Madison Circuit; Geo. Shannon, Judge.</p> <p> Evidence. Answer in chancery. Subscribing witness. Statutes. Frauds and perjuries. Parol Leases Usury. Gaming. Void and voidable. Rent. Distress. Landlord and Tenant. </p>

<p>Urror to tho Madison. Circuit; George Shannon, Judge.</p> <p> Action, Arbitrament and Award. Specialties. </p>

<p>'Error to the Montgomery Circuit; Silas W. Robbins, Judge,</p> <p>Attorney. Lis pendens. Fraudulent judgments. Resstitution. Equity. Jurisdiction. Former Decision.</p>

<p>Forcible entry and detainer. Case9i.</p> <p>Statement.</p> <p>.Dates of the warrant, return and inquisition.</p> <p>Evidence.</p> <p>Verdict; mo, tion for new, trial overruled; judgment and excep» tions.</p> <p>3hstrustions.</p> <p>An entry into, unimproved land, with an intention to clear and fit it for cultivation, is within the statute against forcible entries.</p> <p>From the time of such entry, the limitation of two years commences; not from the enclosing of the land.</p> <p>.Date of the warrant years before its return, cannot be corrected here by the sheriff’s return.</p> <p>■Warrant'iti forcible entry cannot be executed after 30 days from its (late.</p> <p>That an officer, in such “inii/war-^ rant bearing date three before, oiont evidevice that ^mistake'^</p> <p>where the warrant is in-the^r'erfd¡ngasustained only by con-¿n'ílaut’i°a pearing and" traversing the fie wafvor of the irregularity, counted back from the ap. pearanco.</p>

<p>Appeal from the Woodford Circuit; Wn. L. Kelly, Judge.</p> <p> Parties. Injunction. Practice. Mandate. </p>

<p>'Appeal from the Breckenridgo Circuit; Alkey McLean, Judge;,</p> <p>Void and Voidable. Proclamation decrees. Unknown heirs. Jurisdiction.</p>

<p>4-sstjr.n‘si'f. Case 94.</p> <p>Declaration.</p> <p>Third, a special count.</p> <p>Fourth, a special count.</p> <p>Instructions to the jury tq thinf"and^6 fourth counts asilijnon ’1 ‘</p> <p>Assumpsit cannot be ^^accord 0f a fraud, committed by ^or8m:han accord, without satisfaelion’ ^ould to the action for the tort.,</p>

<p>Error to the Bath Circuit; Silas W. Robbins, Judge.</p> <p> Parties. Practice. Mandate. Costs. </p>

<p>Appeal from the Hardin Circuit; Paul I. Booker, Judge.</p> <p>Sales for Direct Taxes. Laws 77. States. Constitutional Law. Supreme Court. Sheriffs’ Sales. Statutes. Practice. Error.</p>

<p>Chaxceíií. Case 97.</p> <p>Case stated to be the samo of the next preceding, and decided on its principle-.</p> <p>Exception, &c, .</p> <p>Facts of the sheriff's sail;.</p> <p>Inadequacy of price is not sufficient to vitiate a sale by execution.</p> <p>If the defendant in a bill for a rescisión óf a contract for Jami, because of a sale under execution against vendor, would rely, that the sheriff’s sale had been set aside in a direct proceeding, he must aver and shew it; io urge it in argument will not do.</p> <p>judges cannot in deciding one case look into other causes in court for evidence.</p> <p>Statement of facts, date,-' &c_</p> <p>Ground relied on against the rescisión.</p> <p>Where vendee takes possession, under a contract for a conveyance when the purchase money is paid, and failingin the payment for a year, the land is sold under a Jifa against vendor, he cannot for that cause have a rescission — lie must first pursue the purchaser for the title—</p> <p>—If he fail in that (of which query) then, his caso will be complete.</p> <p>Possession of vendee by ex-ecutory contract, is notice to subs®, quent purchaser.</p>

<p>Oetípíoe. Caso í¡f?„</p> <p>¡Deiinuo for si'P'C-, píen &v.</p> <p>jOnleniv?' oí plain liíp.</p> <p>Kxtrnrt (tora thq will of l',lor I lord the, cider.</p> <p>Gill in oquiia by the <iovi~' prohibit tim" lonant for life ^‘naVomoviii > y™ -from the bond’requir-. ei!-</p> <p>i,>aoli) appii„ rent inert-' denci''</p> <p>justnuniwif, for non suit’ for Uons</p> <p>AVIicto instructions for nonsuit maybe given and where not.</p> <p>Deviso to Peter for lifr, of ,specí¡ie<I properly, together wiih all (lie negroes that may falPto him in dividing testator’s estate, With remandor <o Peter’s children by name; those child ron take the remainder in Peter’s part of slaves devised undivided io testator :uid others by one before dead, &, by an after oíanse in ibis will, devised to Voter his iirothers and sister?</p> <p>Where (here aro repugnant clauses in a will the latter shall prevail,— ,</p> <p>Out—</p> <p>Repugnance in different clauses of the will shall not be made out by the ieclinioal mean, ing oftenn?.-</p> <p>~For—</p> <p>Where n consistent intention appears in the contest it must prevail, audit shall be supposed the testator employ, ed the word0, whose strict signification would piake a repugnance, in an improper sense.</p> <p>Construction of the will and facts •n-oved.</p> <p>!0e\i=e over after a life estate vests (bn dc’i"oes in remainder with an immediate interest, anti, the osfate of one of them dying intestate passes to his representativo.!', hot. the survivors.</p> <p>Statute ubolishing thejiis accresccndi — As to tenants in common, it never applied.</p> <p>Where one of several co-tenants is possessed oí the thing at the death .of another, if it bo afterwards injured .or wrongfully detained, thte representatives o'f th’e deceased iuay join wilh.Uic survivors in the action.</p> <p>Where the cause of action accrued prior to the death, the survivors only-must sue.</p> <p>This the rule as to the action, tho’ tho interest may not so sur-’ vive.</p> <p>Where before the death of iffe of*slaves part ofthe ’ remainderafterwards at tho termination of the tat'e^Uie1 eS" slaves are held adverse-i.. .u they are dioses in action, and detinue for them must be in the names of the surving remaindermen.</p> <p>In Virginia devisees of slaves could notsoe till executor assented.</p> <p>of seven! ex-dr visee of^ the partioular estate is'sufficieMto vest both that and the rcmam erover. Asseritóf one</p> <p>fenantofthe particular estate being one of several executors, his election to hold as devisee vests the estate in both him 0,nd the remainder-man.</p> <p>Where one executor is devisee of slaves in common with the-other fixecu-' tors, his holding pnrl'of the slaves in severalty for many years is evidence that there was a division and. that all as. seated.</p>

<p>Error to tho Bulb Circuit; Su.as W. Robbins, Judge,</p> <p> Devises. Marshalling the Jlssets-. Legatees. Credit tors. Executors. Heirs. Substitution. </p>

<p>Error to the Bath Circuit; Silas W. Robbins, Judge.</p> <p> Conveyances, Trustees Statutes. Evidence. Onus Probandi of Towns. </p>

<p>Appeal from the Montgomery Circuit: Silas W. Robbins, Judge.</p> <p> Usury. Evidence Answers. Practice. </p>

<p>'Error to the Breckenridgo Circuit: Alnev M’Leak, Judge.</p> <p> Assignor and •Assignee. Covenants. Bonds for land. 'Rescisión of Contracts. Consideration. </p>

<p>Qovenakt, Case 103,</p> <p>Statemont.</p> <p>Motion for a continuanoe overruled.</p> <p>On a motion for continuance, affidavit of party made some days before, that he believed his presence necessary for the attainment of justice, that ho apprehended, owing to ill health he could not attend, & that he had material witnesses, is not sufficient.</p> <p>In deciding on an affidavit for a continuanoe, no presumption favoVable to the applicant is to be indulged— It should be construed most Ftrongly against the applicant.</p> <p>instruction to the jury, in an action on a covenant for iron on a named day, that it w»s in their discretion to in elude interest or not, cannot be romplainod of by defendant.</p> <p>After the proper return on the capias, an attachment against the estate may go, which being levied on dcibndant’s property, judgment may bo taken. Seo 1 Monroe.</p> <p>It must appear by tito oiTicer’s return on the attachment, that ihe nroperly seized belonged to defendant.</p> <p>rfberiiF may amend his rci urn on e.n attachmont or other process as well after as before judgment— and at A sub-x sequent term;</p> <p>An order oí court disposing if (he at! inched effects, is not. necessary, either before or after jnrig. mont, for the statute is, the sheriff shall, after judgment, sell them as on &, . ft. f<>-</p> <p>Costs amS, damages.,</p>

.Bar by former decision. Pleading. B escisión of cor¿~ tract. Compromise. Decree by consent, Evidence.

<p>ÚnA KiERV. ■Case 105.</p> <p>Cotton’s sale ÍP Ward.</p> <p>Hoed of conveyance and its covenants.</p> <p>Judgments at 5a jv on the consideration notes.</p> <p>Ward’s bill for injunction and rescisión ■of the contract.</p> <p>'y¡e,,eii fcois’m Cot ■ ton’» (tile,</p> <p>Further allethe billf61 ° G</p> <p>.Answer of Colton,insisting- on the sufficiency of the title, and -promising -that the complainants objections should be re-¿ovod.</p> <p>Defendant relies on cr>m■plai.iants undisturbed possession.</p> <p>Defendant alleges a mistake in his deed to complain aut.</p> <p>As to the propositions to rescind.</p> <p>Cotton’s a,mended answer, shewing the objection to title removed.</p> <p>Colton’s crosc bill for injttiichOH against judgment obt-iiaed by Ward,’ for brea-di of the covenant of seizin.</p> <p>Ward’s ansi vior to Cot-' Ion’s c¡oí:s</p> <p>V,' ¡ivil’s ímtrii- . ¡oil answer to Cotton.</p> <p>Doom) oí' the dirciiit cbiirl, 'fnrcindincjdio óootrnct, no,l ipflH:ifr mils arid iiriprcn eoiiinU. ■</p> <p>'.ftrrors allopjca by each pci iy. ■ -</p> <p>It is not sufficient (.hat vendor acted without fraud in the sale; in seeking to compel the purchaser to accept the ti-tile, ho must show that it is nut materially defective.</p> <p>Office of the videlicet.</p> <p>In conveyance of a half acre town lot, excepting so much there- . of, as was sold and conveyed toJ. S. ■the expression of a precise ’ number of fact after■ wards added vuidcr a videlicet, is inoperative as to the extent of the conveyance—</p> <p>.ft nd—</p> <p>Whore in such caso an error in the preciso quantity expressed under the videlicet is not by the fraud of the vendor, and the excepted part being covered by a building of 3. Si the owner, and I he purchaser being well acquainted with the lof, well knew what ground he was pur■•■•hasina:, he £ is no ground «f complaint.</p> <p>.Perhaps the purchaser ought to be presumed to. know the preciso ¡-ai-tof a lot conveyed by deed of trust ioi his security, anti of which he had claimed the benefit, to repel his allegation of fraud against a seller to him, of (ho residue of tlio lot.</p> <p>Whore the owner by ex-ecutory contract had caused tlio title to be made to his surety lor indemnify, and a tier discharging hit! liabilily, caused him to convoy i t to his vendee the title ' is valid.</p> <p>.Evidence that tlie couveyiiiisc was so made by tlie trustee, extracted from the suit of the vendee agaimt the heirs of ccsfV.i tj¡ue trust.</p> <p>That the deed to vendor was not registered, só as to ho good against subsequent creditors and purchasers, is no ¡qroum' for revision where ' ho vendor in .vuoli deed is dead, without e.re.Hturs, and >10 subsequent purchase is shown, and vendee is in possession.</p> <p>Decree and conveyance removing the objection to the title obtained by «■tulor perilling t lie suit exhibited in an amendment.</p> <p>Objection as to (lower of widow of rnomfbyher disclaimer, & decree a-l^oas" iul"</p> <p>Lexecutory land^thcre be delay beyond the timo ^^cyan*6 by the fault of vendor the ^nevai compelled to accept thou-</p> <p>But~</p> <p>where the parties have s‘,„Ce 0f the* contrast and tUe^Uult of theven" dor: but is occasioned, 0f t!l0 tflj0 unknown at •a“ar|;t’|t'lie q"iryofthe* chancellor is whether the to convey at* the hearing, pme k?-s vendor to perfeothistitlc.</p> <p>"Where the contract is executed and vendee on-joys the possession undisturbed, and tha vendor as soon as apprized of the objection to the title institutes ¡suits and removes it, so as to , have his title clear at the hearing, the purchaser sh-tl) accept a further assurance.</p> <p>That purchaser ponding his bill for refeihon, or further assurance obtained a judgment in damages for a breach of the covenant of seisin in fee, and thereby compelled vendee to come with his bis cross bill for injunction is no grouurl of objection to a decree for further assurances, which vendor by clearing the title before hearing ’enables him* sell'to make.</p> <p>Where purchaser first comes into court and prays in tho alternativo for further assurance or rescisión and the vendor clears his title and by cross bill for injunction 'against a j udgmont on the covenant of seisin, prays that purchaser may be compelled to accept the further assurance a decree confirming the contruit and directing the further assurance is but answering the prayer of both.</p> <p>Costs.</p> <p>Damagor.</p>

<p>Appeal from tliu Mont eomory Circuit; Silas W.UoBUms, Judge-</p> <p>Farties. - Ter-tenants. Abatement. Miscontinuance. ' joint Decrees and Judgments.'</p>

<p>Appeal from the Montgomery Circuit; Silas VV. Ron ion's, Judge.</p> <p>Fraud in Hales. Hpecific Performance. Rescission of Contracts. Time. Purchase Money. Possession. Rents and Profile.</p>

<p>CHAJfCEETCase 108.</p> <p>Bill under the junior patent su^rio^eif10 try for release of the elder</p> <p>John Hawkins Craig’s entry relied upon in the bill.</p> <p>Southall’s entry called for in Craig’?. Craig’s survey.</p> <p>pujiiim! oi ill's c-vHenef; y ¡ívrs ¡1 the iuwcf ou'.l of a r.erliii.i big bol fora on the Oblo?, i.ncllivid not to bo at I'rio movilii of is ceriaia creek, becruv'-e iky bottom soomoil to'ok lend larthi.r down, bul at a point bdioW, ÍÍAl'd by the testimony ,</p> <p>Craig’s claim, under dofcuilanl’s title by purchase for thcyaxos,and contract with Johnson.</p> <p>Held on the face of the writings, that the agreement between Craig and Johnson, was on]y that the surrender by Craig, of his certificate of purchase of Johnson’s claim for taxes, should not effect Craig’s claim, leaving Johnson’s claim also unaffected to the interference between •.heir grants; and so this ground of complaint overruled.</p> <p>Claim under ■¡¡he purchase for the taxes not support-<4</p>

<p>Appeal from the Garrard Circuit ¡ John L. Bridges, Judge.</p> <p> Deeds. Rescisión of Contracts. Non compos mentis. Fraud. Consideration. Onus probandi. Answer. </p>

<p>CíiAXCehv, Case 110.</p> <p>Question siatcl1-</p> <p>tutement of thbfacts.</p> <p>Bill for an account beaere.11 pai ”</p> <p>Answer rolyftatiUooftimRations.</p> <p>fho^tatuteof limitations r.onsists ih Sons ev¡~mC donee that the claim has been relca<j0’nej ^1 * Therefore</p> <p>Equity,on oni?o1evipJo dencc,applies the statute to bot!lJd'c ca~ current and exclusiveju^diction,</p> <p>i!Cr3? are ex. Accounts o,V money and property between narN chi-ively of equity jurisdiction.</p> <p>Demands of one partner . on another, arovritliin th>' o.'«¡ration of (he statute of limitations.</p> <p>iiviiish decisions on their statute of limitation*:, aro not adhered to in the ‘api'lioation ofour statute.</p> <p>pferenccs to the ÚriÜsli puses of limitations.</p> <p>That one itemofanac?' 00an.t ™as time savcc¡ tho whole in England, but no ao '0r0,</p> <p>British decísionsoa tlle accounts between mercliants’ not aPProvcc-"</p> <p>Accounts which concern the trade of merchandize, between merchant and merchant, > arenot within the general provisions of the statute of limitations whetner the lari item be within the tune-or not.</p> <p>Querc — whether the exception of accounts between merchants, embraces accounts between mcrehant partners.</p> <p>Definition of SUcrijlinnt,</p> <p>Partners in fanning and raising stock, though carried by themselves to market at N. Orleans, are not morch.ints, and so their accounts arc not within that exception of the statute of limitations.</p>

<p>Motio V Case li!,</p> <p>Judgment in faror of Knight vs. Apolcgata’n heirs.</p> <p>Credit on the judgment.</p> <p>jOxecution of Ji.fa. omitting tlie credit.</p> <p>Sheriff’s t'e-turn executed on a tract of land, &c.</p> <p>Venditioni exponas,sale on credit, and sheriff’s ret am.</p> <p>Notice of motion.</p> <p>Objection to notice waved,</p> <p>Trial & judgment of the circuit court, quashing the execution Si. salo. Credit on a judgment, entered a( its foot, forms a part of the judgment, & ought to be noticed by the clerk, in. the execn tion — ■</p> <p>But-</p> <p>Omission of a credit entered at the foot of a judgment in issuing an execution, is no ■ground for ■quashing it.</p> <p>if the clerk omit to notice inthet/i. fa. the credit for about half the judgment entered at its foot, and the sheriff raise the entire sum by a sale of land,the title of the land will not pass.</p> <p>If, however, in such case, the sale was made by other judgments and executions also, & the proceeds of the land were covered by them after deducting the credit, the sale is valid.</p> <p>One sale may be made of land, to satisfy several exucutisns.</p> <p>To sustain a sale bf land under several executions, judgments to cover the amount of thft sales, must he produced.</p> <p>Where the ^TV'jikb’1'1 virtue of mver.vl exenqe‘.??L,\,!¡h<;,.<5e" his motion to qiiash, must moke all interested parties.</p> <p>.Mandats.</p>

<p>Error to the Montgomery Circuit; Silas W. Robbies, Judge.</p> <p>Injunction. Execution. Judgment. Statutes. Release»</p>

<p>Error to the Montgomery Circuit; Silas W. Robbins, Judge.</p> <p> Bonds,for Costs. Conditions. Breaches. </p>

<p>Appeal from the Union Circuit; Alney McLean,.7edge.</p> <p> Executions. Sheriff’s sales. Sale bonds. Replevin bonds. </p>

<p>ArsUMTSIT.'</p> <p>Case 115.</p> <p>ñtntiMuent ¡>.í die fo.eK</p> <p>iT.'.,m<mscontrad,</p> <p>p^íiva the , transaction of u!,uv>’Jmtgmpnitipainst</p> <p>Jmtgmpnitipainst ¡immdt?ri-</p> <p>ion for “”!p(‘init0VR;:<''</p> <p>Query — Whether the sheriff’s return on iboji. fa. agaiost the obligor being no 'goods, instead of no estate, will effect die recourse of assignee on Assignor.</p> <p>Effect of the negligence of the officers of justice in (ho case of assignee against obligor in the suit against 'assignor.</p> <p>Agreement of the assignor, that obligor imprisoned oil ca. sa. on assignee’s judgment might be discharged, & that assignor should remain as i'ar bound, as if the discharge trashy course of law, cures the obiootioriif available, that.on the return was “no es¿ate foun(i.</p> <p>Statute* ou u3ury-</p> <p>If (he original transaction So remaiiis^ however the demand may ^® different"* securities wriiten and Parol~-</p> <p>__But ¡f tJie usury tyj <leducted and y1™65 are valid</p>

<p>COYUN'.VNT,</p> <p>Caso i Uí.</p> <p>Jíoclarsiíjou 0:1 a breach' i/f the i'uvi:jiaul of war-r:iuj x.</p> <p>Evidence objcoíj'l tü.</p> <p>íiifti uíhíou'í as 1o (lu: reca.c: ie of 11 <;ov- • h ■■</p> <p>The ilainaaics i,i iheaMiou far ¡¡reach oí' Ihc coicaant ,.f warranty i.flaud, where ílie ainouut oí the' conrirti ration is e:.pves-iod in (he deed, is that rum \u(b interest fiorn Mi o date oí the deed, not from fie day of the pay^ b’0_ fore or after,wards,</p>

<p>A'ssomi>%mv Caso 117..</p> <p>Declaration,</p> <p>Evidence gn the trial.</p> <p>tíheriff’s receipt.</p> <p>(teluro on the execution.'</p> <p>■'in an action .against the defendant in the execution, by a "third person •jyho being the creditor of the plaintiff .'n the execution, caused it .;obe¡rcturee4</p> <p>satisfied by !U1 arrange^consWoration of the as. sumpsiiuf the, Wim*thc° amount — the shcriffis com^^ovo^th” transaction,</p> <p>Receipt may be explained dance, and to partíesfor ° something oquaUo^ayment.</p> <p>Sheriff's rebetweVn\he partios, and on the sheriff. is noiso uper. strangers a;;aiust wboni il; may bo ■ collaterally introduced, lor they may falsify that, or any other par: of thorcrsoVd.</p> <p>Ojie fcí á party, bc- ■ aiming inlcr«sli'd in the testimony of the sheriff to establish a fact, may call him after-wards to (■¡•ove it— though the slionft' in do-,>;i" so, contradict a return ho made in’lho interim in a ca-ft between others, ar-(l him aaainst •vhom he Ü</p>

<p>Error to tlie Montgomery Circuit; Silas W. Robbins, Judge.</p> <p>Executors §*c. Administrators de bonis iloH. Husband and tdi/e. Sureties. Demurrer.</p>

<p>Error to the Woodford Circuit; William L. Kelly, Judge.</p> <p> Bar by former decision. Executors fyc. Assignees. Parties, Decrees. Practice. Error. </p>

<p>Deceit.</p> <p>Case 120.</p> <p>Action vs. ad'ra™stl'a-'°|s intestate. •</p> <p>First count o£ ]f00nl*eola1^'</p> <p>Second •souril.</p> <p>Third count..</p> <p>í'OWlil oounf.</p> <p>.Vinit ei'.mif.</p> <p>Not.- — nil the count? aro irt c:i ■! tor Iho deceit of defendants in-?co 4- bill. L. K, TJ!, ÜS.</p> <p>J’lun.</p> <p>PlililUiffs,OVi‘ ■qpaop.</p> <p>Motion for non suit overruled.</p> <p>Defendants, evidence.</p> <p>Objetion to decrees offered in evidence sustained.</p> <p>Instructions for plaintiffs as tn the damaged.</p> <p>Instructions ns in case of non suit, can be given, only where it is "dear there is no evidence to support some neoesaajy fact.</p> <p>7iistructinns ¡moved by defendant overyuled.</p> <p>Ojie who soils a slave as asonl of'the /Mvner, when afterwards sued by vendee fordeoeit, in falsely affirming his authority ,has the onus probasndi of his agency on himseif ami must shew if’’</p> <p>Decrees a gainst a nod. resident distributee and exeoutor as guarnishce for money of . distributee in executors hands, constitute, under the circumstances hsie, no defence in an action by vendee of a slave, previously set .11-par( to distó-, hulee, and afterwards sold raider pretence of authority.</p> <p>!n an action by vendee for deceit in rc.'•:pe«t of ¡lie title in the salo ofa slave, recovered by i.bo owner, ¡he law docs not iix the jui reliase money end ill-¡crest us the tsrilere.on of Uiin-uw--.</p> <p>11 von<^c li title, altor rocovery by tho aMuíhorfuS money had to bis use, lie W1!í,rí0<;í,c. entitled to mtorestn<;a matter ofiaw, juiy/ °</p> <p>s“ch cases, or d'ecoit^no allowance |)C made Umna^csfw thohirowfthe property bce”i°hyC0°ho^r" owner, for it was not de-</p>

<p>Appeal from the Fayctto Circuit; Jesse Bledsoe, Judge.</p> <p> Fraud. Bailment, liar by former Decision. Equity. Certiorari. Amendments. Practice. Re-hearing. Error. </p>

<p>Ciiakoeuy.</p> <p>Case 122.</p> <p>Johnston’s mo> (o Broobcnvidgo fo-’ indninni1.y against cndunemeals.</p> <p>Breckenridge authorized by the mortgage to sell.</p> <p>Part of the property soli by Breckenridge, and conveyed by-hind & Johnston to Beall, and by Beall re-convcycd' in trust to secure (he purchase money.</p> <p>Sale and conveyance to Breckenridge under Beall’s deed of trust, by the trustoe.</p> <p>Breckenridge released from the endorsement for which the mortgage was made.</p> <p>Judgmonts against Beall for the purchase money, in favor of Breckenridge.</p> <p>Assignment of one of the judgments to appellees.</p> <p>Beall’s bill to be releived from these judgments on the ground of set oil’against Juhnson. .</p> <p>Breckcnridge’s answ r alleging he had paid money as Johnson’s security in oth- or cases embraced by ibc mortgage.</p> <p>Answer of Squires and Sylliman.</p> <p>3 ohnsoa’s answer.</p> <p>Decree of the circuit court.</p> <p>Assignee of a judgment recovered by ¿ho trustee for the sate money, after the purposes of the trust have been aecotnpiishefl without the fund, holds it subject to any equity the debtor may have against tbe grantorin trust,to whom the benefit of the judgment results.</p> <p>Cestui que trust of th< j udgmc.nt is regarded as the real creil itur.</p> <p>Set oft' in e* quity is not allowed where,there is no connection between the demands and no extraneous circumstance. nmi - ing it necessary fur the justice.</p> <p>Damages &o.</p>

<p>Appeal from the Jefferson Circuit; John P. Oldham, Judge.</p> <p> Seal. Scrawl. Flea dins;. </p>

<p>filANCTBT.</p> <p>Case 124.</p> <p>Whore the the convey03 since from andéfecVof other, he cannot after wards enjoin the vendor from collecting the purphase money for title, but must Jo,)k to the ^antor-</p>

<p>Error to the Montgomery Circuit; SilAs W. Robbins, Judge.</p> <p>Consideration. Pleadings. Allegation and Proof L Practiced</p>

<p>Error to the Montgomery Circuit; Silas W. Robbins, Judge.</p> <p> Evidence. Conveyances. Specific performance. Covenants. llescission of Contracts. </p>

<p>Chancerv, Case 127.</p> <p>This court yvill lake ju• dicial notice, that ceeain persons aroofficers without their names of office appearing in their acts. — But Tt mast appear on the face of tho .certificate of the insertion of the order of publication in the newspaper, that the person certifying is the editor.</p> <p>Mandate,</p>

<p>Error to the Madison Circuit; Geo. Shannon, Judge.</p> <p> Rescission of contract for personalty. </p>

<p>Appeal from the Estill Circuit; George Shannon, Judge.</p> <p> 'Appeals to this Court. Error. Sheriffs’ Bonds. Officers’ Fees. Breaches. </p>

<p>Cross appeals from the Shelby Circuit; H. Davidge, Judge.</p> <p>Wills. Descent. Statutes. Practice. Conveyance bonds. Feme covert. Assignments., Bustards. Entries. Parties. Error. Mandates as to parties.</p>

<p>Appeal from the Whitley Circuit, Joseph Eve, Judge.</p> <p> Bill for New trial. Trustee and Cestui que trust. Bill of review. </p>

<p>Error to the, Blariison Circuit; Oeorge S/rAffWW, .Turlge.</p> <p> Variance. Jlllegaiion and Proof. Condi Hons precedent. Pleading. IndeMlalus assumpsit. Special counts. </p>

<p>Chanceby,</p> <p>Case li)3,</p> <p>If, in a biil against. an absent and a resident defendant, to bave a demand against tlio former satislied out ,of« debt due by the^latter to the I'ormer, it appear such debí bad been appropriated to another creditor beforo suit, and the chancellor had pot jurisdiciion ex-ooi't to subject the resident, no decree can be rendered against the absentee.</p>

<p>Chancery.</p> <p>Case 1.U4.</p> <p>Bill by Lewis, •alleging he bud mortgaged a slave to purchase tickets in Williamson’s lottery.</p> <p>Wifiíámsoa bE^sns tho , note&ggiven™' for the tick-* ^jstcl Rob~</p> <p>Lewis makes Robards au abkjj1 to¿>¿ dp his notes, resorvmg by parol, ¿¡éem ¿ntTro" years,</p> <p>Robards pays forTis equity of redemption in slaTe°</p> <p>Aiiro-ntion.ao no title to the prizeyandilprayer’for return of the slav0 &0*</p> <p>Answer of ftobards.</p> <p>©femiirfcs On ihc evasive character of die answer.</p> <p>Exception to KoSards’ answer overruled.</p> <p>Hill pro con.Jeasn as to Williamson's &ilin!x.</p> <p>yieerce of (ho circuit court.</p> <p>Evasive answers.</p> <p>R"lo.s fo,r,aIt' allegations of' a bill laid,</p> <p>If enough appears in (he record for cioimit.iirmnf, this court will no< reverse for an oiror in .ho circuit ■ ,urt >n overruling exePntion, to the answer, though it is evasive.</p> <p>Fact» of the transaction.</p> <p>Whore the fle.ecdaid piuoiáü’ ad-mils (ho feet in his answer, paiot evidence is. udmis-ibio 'o prove, a’l abrsolut-' deed a mortgage, where o(In r~ wise it woujü pot.</p> <p>Securities given for tickets in an illegal lottery, are void, and mosiey paid for such tickets, ,riu_i be recovered back.</p> <p>A= to the effeef of a valuable considoralion for the .is‘ignlueut under the circumstances here.</p> <p>A pap'er found iti the record not re-* ferred to in the pleading, and not shewing by whom filed, will not avril to prove &. fact not avered,</p> <p>Part valid consideration, blended with a vicious one, will not destroy the power of the chancellor over the tvansaotion.</p> <p>Mandate fa? a decree for of^e'sldvo* 0n payment of the bal¿¿shire,and the $150, with iateres^t-</p>

<p>Error to the Breckinridge Circuit; Al\ey M’LkAn Judge.</p> <p>Depositions. Leading interrogatories.- Evidence. Bill oj exceptions. Records Jurors. Verdict. Witness. Competence. Sheriffs. Practice.</p>

<p>Brror to the Franklin -t'iicuit; Üehrv Davidge, Judge,</p> <p> Devise. Dower. Slaves Forfeiture. Infants. uies Purchaser. Vonstruction. </p>

<p>Error to the Madison Circuit; G-eoucs Shankojv, Judge.</p> <p> 'Pleading. Instructions Trespass. Principal and Accessary. </p>

<p>Error to the Madison Circuit; <3eo. Shannon, Judge.</p> <p> Delivery Bonds. Statutes. Judgments. Executions* Constitutional Latv. </p>

<p>'“../ii.ANUKitT o Caso 13.9.</p> <p>Bin for in-j-.motion r~ threatened(>-, tle.cri-birit afjjl a/j18" tvr.Viricii, „u the merits '’“'I*1’'*'’ menW^foV complaia.mf, °“° ofpvhioU ¡athis1 court.</p> <p>Prayer of the ^notfo'n m' J</p> <p>Demiirverand oirotó court dismissing the bill.</p> <p>Defen(-|anpj=; argument against the jor-i‘!'-hction.</p> <p>Equity imv ^7,!u an°enr u> éjeoimoníftopfovent op, ü,xoil?;”ea 4!. Fanlant po.-uc.-,</p> <p>Bills (o enjoin the prosecution' of ejectments mid of peace, arc Confined to eases where complainant bus Fnlisl'aotmily eHablisheii tiis title at law, and where the parties ¡ire so numerous thal an issue out of chaneery is noces-</p> <p>vVJies;c there have been givii verdicts and judgments in ojoctmaits for the occupant, ana one of ■(hem aflirmed inthi- court, and two <:t - oís brought and c.1 smisaotl, n bill for injunction against a fifth js not tlcmurrab'.c, bntpn-na facie nmiutuiu !> No.</p>

<p>Appeal from the Cumberland Circuit; Benj. Monroe, Judge.</p> <p> Assignments. Frauds. Parol Contracts, btatute of Frauds and Perjuries. Notice. </p>

<p>Debt.</p> <p>Case 140.</p> <p>Case stated of a submission in writ* ing to arbitrament of a controversy between two firms made ou the part of one of the firms by one-partner only.</p> <p>Instructions moved by ap-. pelloe.</p> <p>Question of law reserved and conditional verdict.</p> <p>Judgment of the circuitj epurt.</p> <p>Submission, was by one partner in writing, but not under seal, and an. award responsive to it.</p> <p>Question — le the other partner bound by the award ?</p> <p>fiii¡>mv?io» of a controversy between a partnoribip stud others by deed executed by but ene >.f the partner? will net: bind the either?.</p> <p>Oy.o partner in ay land tho ol'iorsbywvit iir-s not sealod.</p> <p>Question nf í 1:o power «f one partner to miko a Pobinission to biii'l his co-partners examined on ihfi Iiriti-h authorities end the vow-in' allowed.</p> <p>Power of one partner on soiling, contracting, releasing and arbitrating controveisics of the con; corn.</p> <p>It is said or-.q., partner may enter an appearance i or another in court, a-d so causo him to; be bound.</p> <p>Casein Pennsylvauia citen) in Gow, lefered to as ih point.'</p> <p>Tiio statute placing cei? lain unsealed writings on the same footing with deeds doc3 not altor the modo of executing unsealed instruments — it on? ly gives the greater effect io them after they are executed, which may be dono as before.</p> <p>Delivery is essential to a deed, not so of other writingsnotseal-</p> <p>After reversing a judgment this court goes buck to the first error.</p> <p>An award at common law, cannot be impeached for either mistake,partiality in the umpire,or unfairness in obtainingit, but must be assailed in equity.</p> <p>April 10.</p> <p>Answer to (he petition a3 to '.lie parties.</p> <p>One defendant in 1 lie cayia$i returned no inhabitant,and who did not at Srst appear, is .-shifted into . he stead of ■A-O ojhor 7,7.10 first defended and after-wards died, and is so become the sole defendant without any formal entry — a singular case.</p> <p>One partner has by the general authority as Co-partner, power to bind the others by the submission of iheir accounts to arbitration by writing not coaled.</p>

<p>Chancery. Case 142.</p> <p>Statement,</p> <p>wilKamsou convey? the test'pnrohas¿dofSaundors, with the for his credit-or*,</p> <p>A lottery is made by Williamson setting up,among other property, the land 'in contest as one-prize.</p> <p>White draws the land as his prize.</p> <p>Saunders, in whom the le-gál title hah remained, conveys to White.</p> <p>Public notice of the lottery-</p> <p>Creditors ‘require, trustees so)), an-J Prentiss ¡-urcbasi.s the land in contest.</p> <p>Conveyance of the trusiees to Prentiss.</p> <p>Prentiss’ bill against White. .</p> <p>Answer of the trustees.</p> <p>White’s answer, denying notice,and alleging (hat Williamson had paid Saunders the purchase money out of the proceeds of the lottery, arid in-, sisting on his legal title and possession—</p> <p>Alleging alia the trustees had encouraged the lottery, -had notice and participated in the lottery, and suppressed a public notice, and opposition by the credit-</p> <p>insisting aisrjg. t&e deed ví^ fraudulent anil void as to'fbr creditors, Sic: Sic.</p> <p>f>ecree-of. the cir'iuit court against White fur a surrender'of the title anti, possession k tor rents'.'- '</p> <p>Questions as io the validity of the fiec'l df ‘rust, and whslher White is entitled to raise il, waived.</p> <p>Trasteos admit notice Of the lottery, but ilenyparticipation.</p> <p>Two of the trustees adía ó they induced' a creditor to sup- ' press a handípilJ, publish-' ins his claim under the :' ,áeed and for-■biding the ' ' ilTaiVins.</p> <p>asr*°_ Sion ol the* public notice tliclotieryby two of ,ho ^*1303"</p> <p>Trustees, or thoi,‘ :;fSIga-*qUit} in an estate con-joyed them a°fte7pvomoS-tingamlieg’d lottery by a'diMribution of the estate, n:r'iao1- de- ' man( of',ne surrender it. who dr.iws a prize and obtains the 1c-legal title and possession, to.</p> <p>j.or_</p> <p>Between parIidpes crim'inis,melioresi conililio possidentis.</p> <p>One having obtained the. legal title to • iottery can not b<; required to surrender to those by whose approbation & concurrence he was drawn into it, nor to their assignee.</p> <p>in such case the acts of The debtor’s trustees affects tile estate, and renders them responsiblo for creditors?1 ^ Asdguce of ího trasteos iu such cuse Clio’ a creditor receives the claim affected as in the hands of íhc trastees.</p> <p>Responsibility of the trustees to cestui que ira.;'.?,and Uie rights of srediiors.</p> <p>li^Saifd’on Ttusts, 196.</p> <p>2 Mar. 108.</p> <p>3 Mar. 14?.</p> <p>Hb ^ lg!í’</p> <p>„ __ .? une 22.</p> <p>Allegations of nnt°Tmcain" ihcmik’bill.</p> <p>Prayer of the bill.</p> <p>Affidavit on melien for injunction to stay waste.</p> <p>Injunction.</p> <p>Answers filed.</p> <p>Substance of Williamson’s answer.</p> <p>Answer of tha, trustees.</p> <p>Answer of white’s ten» ant.</p> <p>White’s oriSinal answor*</p> <p>WlliTe nr complainants equity.</p> <p>White’s first an~ cross liii&wkey; charging the thlVcrcfiroC Haggiii amt ! requiring his a”d. 00ai' .^vcrT11 S an’</p> <p>Prentiss iaik V? answer, fv revived in the name q? ius iu"W-</p> <p>Answer of the cJar'jaínants ííeírsYo cross bill.</p> <p>Ifagrin’s ansiverto White’s cross</p> <p>White’s second amended answer & cross bill.</p> <p>fntoivogatotviiiie'io Haggin,See. °</p> <p>January, one, oflh" trustees — bis an, swerio White’s second amended cross, bill?,</p> <p>"Huai's answer to the jame-.</p> <p>W -rsley and H.^-gin’s , mint answer.</p> <p>Exceptions tés l^hite^n terro?atories~ in his cross hei^co^ C0X'</p> <p>fa?= ther answer,</p> <p>r,ro-°N</p> <p>History of the •case in this court.</p> <p>He-henrine; — . Praotice in this court.</p> <p>Uronnds relied on by White’s heirs</p> <p>Grounds ie!ied on by t?io heirs of Fren.tis.</p> <p>Ts not an os, tafo conveyed by debtor to trustees for creditors Butject to loss by the fraud of trustees, and debtor on a bonajide purchaser from the debtor, without creditors participation ?</p> <p>if trustees to an equity con veyod by debtors fur bis 11 creditors encourage and induce a stranger to purchase the estate from the debtor, & he.'loesso pay for it, and obtains the legal title from debtor's venders where it had remit in-«'I, he shall sot be disturbed.</p> <p>7 cartees in dea’ing with strange.! s, are in tbu í'i nerab governed by the same rules as the holder of the absolute estate; and by their deception may lose the property;</p> <p>The rule that no act of neglect of the trustees, shall prejudice the cestui que trust applies only to the . parties to the trust, & those dealing with the trusees as such," having notice of, and claiming under the trust;', and not to the case of • strangers.</p> <p>. , . as such, is in someca°es,as reject ofthe price, and must sec its application,</p> <p>Property may be lost to cesbT thi^nerfigenre of the thrrT•’ d n deluding1 W strangers to purchase it. 'White obtain title1 without notice of the conveyance intrhst.</p> <p>Ropenalty b^the^ct'^of I:l69&°779 or the purchaser of tick ?otteHe"and they wore not participes crithe^makrts of the lottery— on these ail wero’lmlof-3 ed,</p> <p>The'prizes drawn in such lotterisa were lawfully held.</p> <p>One who acquired the title and possession of land as a prize in a private lottery, might allege a deed of trust made by the maker of die lottery under which complainant claims an elder equity, was made ill fraud of creditors.</p> <p>So they might also allege the trustees had permitted the estate to be held out as a lure to him to make the adyentijrc.</p> <p>T-he prize, holder could not in such case have the deed of trust 'cancelled; he coidd only-resist its effects asruiust , . ° i * |um.</p> <p>3f trustee? of the estate conveyed by debtor for creditors,' stand by and see (he debt- or publish’ a lottery of th’e property, soli the tickets, complete the drawing and collect the price of the tickets, the fortunate persons drawing & obtaing the possession of the prizes shall hold them.</p> <p>In such case doe« a sale at auction of the estate by the trustees to a creditor puss to the purchaser an equity the trustees had forfeited or could not ag? serf?</p> <p>o”«fn equity takes.it subjeot to any baudsoToth ers, and if that equity is m the hands al grantor of the equity udeisinflexi ne, '</p> <p>Where the equityisoutthird person, amt he'conoeals it till oompleies°his purchase, it shall hat pre- ~</p> <p>In such case Che assignment must be for a valuable consideration and with-out notice.</p> <p>Argument for Prentiss on the ground that by his purchase he acquired the equity held by the creditors winch had not been effected by the acts of the trustees — — not allowed.:'</p> <p>fo entitle Prentiss to urge this argument he ought to shew not only that he had paid the purchase money but that it had been applied to the payment of 'the debts for which especially the trust was created.'</p> <p>Where lands are conveyed payment ofC pertain specified debts must'see tcT*” the appropnation of the !”wi«e where" te conveyanee is for df^c’bts^cii«¡rally. °</p> <p>ft does not appear tho price Prentiss bid for tbe land was ever paid the creditors secured by tbe deed of trust.</p> <p>White bad the right, if Prentiss could derive an equity from’ the creditors by the payment to them of the nurchase money, to require proof of the payment.</p> <p>The payment and appropriation does hot appear.</p> <p>That Prentiss represented the Kentucky Insurance Company, ■whose charterhaving expired, had no existence, to whom Williamson’s sureties had been bound in obligations against which the conveyance ivas to indemnify them, and made the purchase for the company and-Caused the netos lo be cancelled, was not a payment and apuro-nation of the purchase money — For,</p> <p>Jhe corPora'’ creditoi because it was. "ot in exis"-</p> <p>lt the survi-. voro''twoex-_ ecutors (o whom the estate h:id been, devised for payment of debts, stand by and see one purchase from the person to whom the other had sold by parol a parcel of the land on which the testator '.eld a conveyance bond, and afterwards oa3-s a balance of the purchase-mo-ey and obtains (be legal ti!le, he must surrender it without biug reimbursed.'</p> <p>Osie who em-coin-aged the lottery ^acte'd more against taw than the theCticket” who drew the P«ze-</p>

<p>Appeal from the Montgomery Circuit; Silas W. Robbins, J udge.</p> <p>Rescission of Contracts. Compensation. Title. Mis* take, Waste. Services. Privileges. Reservations> Water works. Interest. Rents. Improvements.</p>

<p>Appeal from the Fayette Circuit; Jesse Bledsoe, Judge.</p> <p> Evidence. Practice. Writings. Witness. Executors. Legatees. Devisees. Contingent Remainders. Instructions. Error. Possession. Limitation. </p>

<p>OilAN'CSUY.</p> <p>Qv.se 145.</p> <p>Appellant purchased 400 acres of land trou appr,Uqe.</p> <p>Judgment at law for the purchase money.</p> <p>¡Bill by appel laut for injunction and rescission.</p> <p>Grounds relied on for a canceiment of the contract.</p> <p>A ppnlloo' answer.</p> <p>Decree of (lie circuit court dismissing tiio bill.</p> <p>Appellee’s title.</p> <p>Aloxr. Dick’o will.</p> <p>Patent to Jas. Alerce» in trust tor Dick’s devisees, Jas. Mercer’s 'will.</p> <p>Deed by the cestvi que trust of Dink’? will to I’aUon, Hackley and Leo, under whom appellee claimed</p> <p>The cestui que trusts of a <lovi?c to a trustee cannot n.-i-s the Jo.-rai title by llicic deed.</p> <p>^ ^ frast!^ if the deyise? of a nounce the trust tho Ie= ^ j,0irs 0f t{,0 trustee in trast’ a11 of the tute, Trustee may devise the</p> <p>Where a deed of conveyance purports to hove ficen made by attorney the authority most appear; a roeifalin tho deed has no effect.</p> <p>Where the devise is for use of one for life and in fee, if she have ■issue when she dies without having had children, the estate she conveyed by her deed is determined.</p> <p>A conveyance from the trustees to lectuiquc trust may be presumed from length jf possession—</p> <p>But—</p> <p>If the cestui gus trust had but a life estate unless she liad issue and she died childless no such pr«c' «ampíion can aid lior alienee of the fee.— It cannot be presumed the trustee released to the cestui qv£ trust a greater interest than lie was entitled, -te.</p> <p>Evidence as to the adverse possession.</p> <p>Nol loss.(.ban 20 yours is sufficient to authorize the presumption of a convey-anco from trastees,</p> <p>Vendor who cannot make out a title cannot have his contract executed, but must rescind however honest ho may-have acted.</p> <p>April 11 o.</p> <p>Ifvendor has not the legal title he contracted to convey "whatever may be his equity, vendee may rescind.</p> <p>In hard cases on vendor, vendee may be compelled to accept the title, ifit be exhibited on the hearing, though obtained after it was to have been conveyed.-Ana even where the title is sti'l held by another, the vendee rnav fee compelfed tone opt it, provided such holder is before the sour:, and the title as contracted for, can be secured.— But the purchaser can ne ver be compelled to accept any e* qaity.</p>