Volume 2 — Kentucky Reports

<p> Upon a writ of error to reverse a decree of the Franklin District Court. </p>

<p> J]'pon a writ of error to reverse a judgment of the Court of Quarter Sessions of Woodford county. </p>

<p> Upon an appeal from a decree of the Washington District Court. </p>

<p>"Where a decree directing the conveyance of land, and the ascertainment of the value of rents and profits taken, is suspended by an appeal, the court will, on an affirmance, remand the cause for further proceedings, in execution of ine decree.</p>

<p>The holder of the elder entry, which has not been surveyed conformably to its terms, can not maintain a bill against the holder of a junior interfering entry to compel him to surrender the land embraced by the interference.</p>

<p> Upon an appeal from a decree of the Lexington District Court. </p>

<p>A caveat relied on By the defendant as a Bar to the complainant’s Bill should Be exhiBited with his plea, and if not exhihited.the court should not determine the plea to Be good.</p>

<p> Upon an appeal from a decree of the Court of Quarter Sessions of Fayette county. </p>

<p>Under the act of 1798 (1 M. and B. 753), a declaration for the recovery of property lost at gaming must set forth all 'the facts to show that the case comes within the statute, notwithstanding the statute provides that the loser may recover “ without setting forth the special matter.”</p>

<p>A rule on tbe defendant to plead, made at the time of tbe filing the declaration, is contrary to tbe statute which gives the plaintiff a right to such rule one month after the filing of his declaration; and the error is not cured by the statute of jeofails.</p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Franklin county. </p>

<p>“Where arbitrators award that A shall pay B a sum of money, and that B shall execute a release and deliver possession of property to A, B can not maintain an action for the money without averring and proving performance of his part of the award.</p>

<p>1. Where it does not appear from the entry that the intention of the locator was otherwise, his entry should he surveyed as nearly in a square as the other calls in the entry will permit.</p> <p>2. A call to run “nearly a south-east course,” must he run due south-east, unless controlled by other calls.</p>

<p>Where it is suggested in this oom-t that the transcript of proceedings in a suit in the court of quarter sessions, which has been put in evidence on the trial of the cause in the district court, and embodied in the bill of exceptions taken in that court, is imperfect, this court will award the writ of certiorari to the clerk of the quarter sessions court, commanding him to send up the omitted part of the record.</p>

<p>Unless tlie record shows that the arbitrators, whose award was ’made the judgment of the court, were sworn before they proceeded to act, the judgment must be reversed.</p>

<p>1. Where the beginning call in the elder entry might have been found by making reasonable search for it, it is sufficiently certain and must prevail over a junior entry and survey which conflicts with it.</p> <p>2. A survey made before the entry is illegal and void.</p>

<p>1. A party relying upon an entry and survey in defense of his possession, must show that his survey conforms to his entry.</p> <p>2. Where two calls in an entry conflict, and one of them is general, while the other is special and precise, the latter shall control.</p>

<p> Upon a writ of error to reverse a judgment of the Gourt of Quarter Sessions of Scott county. </p>

<p> Upon a writ of error to reverse a decree of the Court of Quarter Sessions of Fayette county. </p>

<p> Upon an appeal from a decree of the Franklin District Court. </p>

<p> Upon an appeal from, a decree of the Paris District Court. </p>

<p>Ho judgment can be rendered against bail unless a bail bond be taken and a copy thereof returned to the office.</p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Bourbon county. </p>

<p>A rule to plead taken at the filing of tbe declaration is erroneons.</p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Fayette county. </p>

<p>A judgment will not he reversed for mere irregularities in joining issue on. the pleadings, which have not affected the merits at the trial.</p>

<p> Upon an appeal from a decree of the Lexington District Court. </p>

<p> Upon a writ of error to reverse a judgment of the Court, of Quarter Sessions of Shelby county. </p>

<p> Upon an appeal from a decree of the Lexington District Gourt. </p>

<p>1. "Where an entry called to include an improvement at a certain spring, and to bind on P. H.’s survey, and P. H. had two surveys in the neighborhood, it will be presumed that the survey nearest the spring was intended.</p> <p>2. Where an entry included a certain spring and was to adjoin a survey lying to the southward of the spring, it should be so surveyed as to lie in equal parts on each side of a line running from the spring to meet the line of the neighboring survey at a right angle; the northern line of the neighboring sur. vey to. be the southern line of the entry, and a line parallel thereto, so run as to just include the spring, to be the northern line of the entry, and to extend laterally for quantity.</p>

<p>1. There can he no recourse to the hail before a ca. sa. is sued out against the principal.</p> <p>2. But where, on an appeal to this court, it does not affirmatively appear from the record of an action against hail that a ca. sa. had not been sued out against the principal before the commencement of the action, this court will not presume that it had not been sued out; and the judgment against the hail affirmed.</p>

<p> Upon a writ of. error to reverse a judgment of the Gourt of Quarter Sessions of Fleming county. </p>

<p>A judgment against a sheriff and his sureties can not be sustained as to any •of them where the notice is, as to the sheriff, insufficient.</p>

<p>A judgment against a sheriff for money collected on an execution can not be ■sustained where it appears from the record that the money was not received until after the judgment was rendered.</p>

<p>Where the allegations of the declaration do not show that the plainliff is entitled to the form of action which he has adopted, the judgment must he reversed.</p>

<p>Where a ferry franchise was granted to one, his heirs and assigns, so long as he and they should well and faithfully keep the ferry according to the directions of the grant — Held:</p> <p>1. That the right to the franchise does not vest until the grantee commences the keeping of the ferry.</p> <p>2. That the right to the franchise is forfeited by an unreasonable delay in putting the ferry in use.</p> <p>3. That the forfeiture is not excused by the death of the first grantee soon after the grant and the disability of his heir, no exbeptlon having been made in the grant on account of such disability.</p>

<p> On a writ of error to reverse a judgment of the Court of Quarter Sessions of Hardin county. </p>

<p>1. Where an entry calls for a beginning point one-half a mile above the mouth of G.’s creek, it will be presumed that the locator intended to locate land on G.'s creek, and not on the water course into which G’s creek emptied.</p> <p>2. Where the beginning point in an entry is one-half mile above the mouth of a water course, the half mile is to be measured in a straight line and not by the meanders of the water course, unless the contrary intention appears.</p> <p>3. Where the calls of an entry were “beginning one-half mile above the mouth of G.’s creek — to include both sides — and north for the largest part” — . Held: The survey should be a square lying in equal parts on each side of a north and south line, passing through the beginning — the south line lying only so far from the half-mile point as to be all on the south side of the creek.</p>

<p> Upon an appeal from a judgment of the Court of Quarter Sessions of Nelson county. </p>

<p>An act of the legislature which deprives a defendant of the right of trial by jury, where, before the constitution, he was entitled to it, is in conflict with the constitution and void.</p>

<p>An entry on a land warrant which, calls to adjoin a pre-emption appendant to a settlement, made before the pre-emption had been located with the surveyor, is too uncertain and can not be sustained.</p>

<p>In an action for a debt due by account, a judgment rendered by the court, without the intervention of a jury, is erroneous.</p>

<p> Upon a writ of error to reverse a judgment of the -Court of Quarter Sessions of Bracken county. </p>

<p> Upon a writ of error to reverse a judgment of the Gourt of Quarter Sessions of Logan county. </p>

<p>1. A judgment upon a verdict, which is not authorized by the pleadings, is «erroneous.</p> <p>2. A judgment for the debt demanded in the declaration, to be discharged by ithe payment of a larger sum, is erroneous.</p> <p>3. Where there is a material variance between the obligation declared on, :and the one given in evidence to the jury, the verdict and judgment thereon «can not be sustained.</p>

<p>Where it does not appear that the viewers of a proposed road were sworn (before they entered upon the discharge of their duty, their report should be .quashed.</p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Fayette county. </p>

<p> Upon a rehearing of an appeal from a judgment of the Court of Quarter Sessions of Woodford county. </p>

<p> Upon a writ of error to reverse a judgment of the Gourt of Quarter Sessions of Mercer county. </p>

<p> Upon a writ of error to reverse a judgment of the Gourt of Quarter Sessions of Bourbon county. </p>

<p>Where, in taking a replevy hond, the sheriff included a larger commission-, than he is entitled to hy law, the hond is illegal, and should he quashed.. {Contra, post, Turley v. Owings.)</p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Scott county. </p>

<p>Upon a writ of error to reverse a judgment of the Paris District Court„</p>

<p>Where, to a declaration in trespass, issues were joined on pleas of not guilty, and the jury sworn — not to try those issues — but to inquire of damages, a judgment upon their verdict must be reversed.</p>

<p> Upon a writ of error to reverse a decree of the Court of Quarter Sessions of Madison county. </p>

<p>On the trial of an action the record and judgment of a former suit between, the same parties is admissible to prove any fact litigated and decided in the former suit.</p>

<p> Upon a writ of error to reverse a judgment of the Gourt of Quarter ■ Sessions of Woodford county. </p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Jessamine county. </p>

<p>1. Words spoken of another which do not necessarily impute to him more than the commission of a trespass, are not actionable.</p> <p>2. Charging another with an intention to commit a felony is not .actionable.</p> <p>3. These words, to-wit: “ You are an insurgent; you have opposed and insulted the excise officer, and have encouraged others to do so; and you have, whilst an assembly man, threatened to raise men to help the Fort Pitt insurgents against the state's army by force of arms,’’ are not actionable.</p>

<p>1. Unless the record shows that the grantee of a ferry owned the land from which the ferry was to run, the grant can not be sustained.</p> <p>2. The court of appeals can not hear testimony to supply a fact omitted to he proved on the trial in the lower court.</p>

<p>Where the judgment was for £500 damages and $9.47 costs and the sheriff took a delivery bond describing the judgment as for “ £500 debt, with interest from date until paid, and also $9.47” — Held: That the variance was material and the bond void.</p>

<p>Where an execution, which issued on a replevy bond, required the sheriff to make interest on the damages and costs, which the obligors in the bond did not undertake to pay, the execution must be quashed.</p>

<p> Upon an appeal from the decree of the General Gourt. </p>

<p>.¡Such of the justices of a, county court as caused the illegal ouster of tha clerk from his office, are liable to him for his cost.</p>

<p>1. A return on an alternative writ of mandamus held insufficient, and the peremptory writ awarded.</p> <p>2. "Where the return to a writ of mandamus, made by a county court, is held to be insufficient, the justices of the county court must pay the legal cost of the writ.</p>

<p>An. act of the legislature which provides that upon the affirmance of a judgment in the court of appeals, judgment shall be given by the appellate court against the surety in the supersedeas bond, is unconstitutional, in that it -deprives the surety of the right of trial by jury in a case where it existed before the adoption of the constitution.</p>

<p>1. Under thd occupying claimant law damage done to the land can not he assessed against the occupant as rent.</p> <p>2. The mode of proceeding prescribed by the occupying claimant law can not be pursued in a cause pending before and at the time the act was passed.</p>

<p>An entry “on the dividing ridge between the waters of Kentucky and Dick’s river to include part of both waters and his improvement,” is too vague and uncertain, and can not be sustained.</p>

<p>An entry can not be’sustained where there is neither special description, nor notoriety of the objects called for.</p>

<p>1. The husband acquires no transferable interest in the lands of his wife unless she have seisin thereof during the coverture.</p> <p>2. Where a testator, holding a number of title bonds for land, directed in his will that his executor should allot to his daughter 1,000 acres of his land, the husband of the daughter,’claiming in her right, can acquire no interest in the land by getting possession' of one of the title bonds; and neither his assignment of the bond, nor sale of the land covered by it, will pass any interest to his vendee.</p>

<p> Upon an appeal from a judgment of the Franklin District Court. </p>

<p> Upon an appeal from a decree of the Paris District Court. </p>

<p>1. Exceptions to the depositions of witnesses on the ground of interest, not having been taken at the original trial, the court of appeals can not disregard their testimony.</p> <p>2. It is the duty of a court of equity to annul the most explicit contracts as far as it is made certain that one of the 'parties was deceived by the other.</p> <p>3. A party to a bill in chancery, who is a mere stakeholder as between the litigants, can not be decreed to pay costs.</p>

<p>Where money due upon government certificate comes to the hands of a-party, or his agent, equitably entitled thereto, he can not, in equity, he compelled to pay it to one who holds the legal title to the certificate.</p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Clark county. </p>

<p> Upon an appeal from a decree of the Lexington District Court. </p>

<p> Upon a writ of error to reverse, a judgment of the Franklin District Court. </p>

<p> Upon an appeal from a judgment of the County Court of Nicholas county. </p>

<p>1. Where the vendor of a tract of land fraudulently misrepresents the location and quantity of the land, a court of equity will rescind the contract of sale. '</p> <p>2. Where the vendor of a hody of land, sold at a given price per acre, represented it as containing a certain number of acres, when in fact it contained a much greater quantity, the chancellor can not set off to the vendee the number of acres represented by the vendor to he in the tract, hut will rescind the transaction altogether- upon equitable terms.'</p>

<p>The refusal of a court to issue the writ of mandamus is neither a judgment nor a decree, and therefore no appeal can he taken from its action.</p>

<p> Upon an. appeal from a decree, of the General Court.. </p>

<p>1. It is a rule of evidence, applicable to both courts of law and equity, that ■what is admitted by the parties in their pleadings, need not be proved, and can not be controverted.</p> <p>2. A survey which does not conform to the entry, must, to the extent of the departure, yield to a junior entry and survey.</p>

<p>A junior entry sufficiently definite to he located, will prevail against a claim to land under an elder entry rot shown to be susceptible of location.</p>

<p>Judgment can not he rendered against the appearance hail unless a hail hond has heen taken and a copy thereof returned to the clerk’s office.</p>

<p> Upon an appeal from a decree of the Lexington District Gourt. </p>

<p> Upon a writ of error to reverse a judgment of the Gourt of Quarter Sessions of Madison county. </p>

<p> Upon a writ of error to reverse a decree of the Washington District Court. </p>

<p>1. Notice to a surety in a sheriff’s bond of a motion for a judgment thereon, is sufficiently served by leaving a copy thereof at the house of the surety.</p> <p>2. Where the statute authorizes the auditor to move “ against delinquent sheriffs and their securities,” it is not necessary to prosecute the sheriff to insolvency before proceeding against the surety.</p>

<p> Upon an appeal from a decree of the Gourt of Quarter Sessions of Nelson county. </p>

<p> Upon a writ of error to reverse a judgment of the Gourt of Quarter Sessions of Green county. </p>

<p> Upon a writ of error to reverse a judgment of the Bardstown District Court. </p>

<p> Upon a writ of error made a supersedeas to reverse a decree of the Lexington District Court. </p>

<p> Upon a motion to quash an appeal from a judgment of the' Court of Quarter Sessions of Shelby county. </p>

<p>Where the amount in controversy is not sufficient to give jurisdiction to this court, the appeal -will he dismissed with damages.</p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Pendleton county. </p>

<p>A motion against a party for a judgment for state taxes, claimed to have been collected and not accounted for by him, can not be sustained without showing that the party was authorized by law to collect the taxes.</p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Logan county. </p>

<p> Upon an appeal from the decree of the General Court. </p>

<p>Before the assignee of a single hill can recover against the assignor he must prosecute the maker’ of the hill to insolvency with diligence, otherwise the assignor is released.</p>

<p>Where the covenant of the defendant is to convey land on demand, a declaration based upon a breach of the covenant must allege that a demand was made at a certain time and place; and the general averinent “that the defendant has often been requested,” &c., is not sufficient.</p>

<p> Upon a writ of error to reverse a judgment of the Franklin District Gourt. </p>

<p>Where the parties have pleaded to issue, a judgment for plaintiff, on motion, without a trial or waiver of the issue, is erroneous.</p>

<p> Upon a writ of error to reverse a judgment of the County Court of Nelson county. </p>

<p> Upon a writ of error to reverse a judgment of the Bardstown District Gourt. </p>

<p> Upon a writ of error to reverse a decree of the Bardstown District Court. </p>

<p>The plea of justification must he in writing, and an entry on the record of “ not guilty, justification and joined,” no written plea being filed, is too defective, and can not support a judgment.</p>

<p> Upon an appeal from an order of the County Court of Nicholas county. </p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Ohio county. </p>

<p>. The objection that copies of the award, which was made the judgment of the court, were not delivered to the parties, must be presented to and acted on ■by the lower court before it can be considered here.</p>

<p> Upon a writ of error to reverse a judgment of the Gourt of Quarter Sessions of Ohio county. </p>

<p>Where there has been a fair trial in the lower óourt, and it clearly appeslrs that no injustice has been done to the defendant, this court will not reverse the judgment on the ground that the plaintiff declared for a trespass vi et armis, when he should have declared in case.</p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Bourbon county. </p>

<p> Upon a writ of error to reverse a decree of the Bardstown District Court. </p>

<p>"Where arbitrators award upon matters which, by no legal intendment, can be within the submission, the judgment based upon this award will be reversed.</p>

<p> Upon a writ of error to reverse a judgment of the Danville District Court. </p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Logan county. </p>

<p>■Where a reply "bond is taken for too much, the proper course- is, not to quaslt. the bond, but to direct a credit to be entered upon the execution issuing thereon for the excess.</p>

<p> ■Upon an appeal from a decree of the Gourt of Quarter Sessions of Madison county. </p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Shelby ■county. </p>

<p> Upon a writ of error to reverse a decree of the Franklin District Court. </p>

<p>Where a replevin bond is taken for too large a sum, tbe bond should not be quashed, but the excess should be credited on the bond.</p>

<p>Where the obligor bound himself to make to the obligee as good a title to the land sold as he received from the Commonwealth, to any lands upon a certain water- course — Held: That he was bound to convey land free from the paramount claims of others, and to warrant the title as good as that of any of his lands on the water course.</p>

<p>Where there was an order submitting a cause to the arbitrament of four persons, and' three of them made an award to which the fourth dissented— Held: That the award was naught and a judgment thereon erroneous.</p>

<p>1. Where an act of the legislature of Virginia granted 8,000 acres of land to trustees for school purposes, describing them to be within the county of Kentucky, formerly the property of M. O. & M., British subjects, which had escheated to the commonwealth, and the special verdict of the jury found that O., one of said subjects, had been owner of two tracts of 3,000 acres each within that county — Held: That the description in the act was sufficiently definite to uphold the grant as against a junior patentee of the same 3,000 acre tracts.</p> <p>2. A survey was made in 1774, but no warrant to authorize it was issued until 1775. An act of the legislature declared all surveys made without a warrant void — Held: Nevertheless, that a junior patentee of the same land could not be injured by the irregularity, and that his title could not prevail against the elder patent.</p> <p>3. No person can maintain an action for a wrongful act from which he has sustained no injury.</p> <p>4. Where an act of the legislature granted 8,000 acres of land, late the property of aliens, which had escheated to the commonwealth — .Held: That the act must.be construed to pass not merely the right of the aliens, but all the title of the commonwealth from whatever source derived.</p>

<p> Upon a writ of error to reverse a decree of the Bardstown District Court. </p>

<p>I1. Where the law directs that a copy of the bill shall be delivered to the-defendant by the officer serving the subposna in chancery, which delivery shall be endorsed on the back of the subpoena — Held: That it must appear by the return that the copy had been delivered before the bill can be taken for confessed.</p> <p>2. The chancellor, in order to inform his conscience as to any point arising in a cause, may direct an issue to be tried as to that point; but it is error to-submit the whole case arising upon bill and answer to a jury.</p> <p>3. Where a defendant, who has not been so served with process as to bring him into court, appeals from the decree, he will, upon the return of the cause to the lower court, be treated as in court, .and entitled to no further service of process.</p>

<p> Upon an appeal from a judgment of the Danville District Court. </p>

<p>Where an obligation is payable in property on demand, and the obligor has a known place of residence at the time the obligation is made, the obligee must, as a general rule, demand the property at the obligor’s residence before he can sue. To this rule there are exceptions.</p>

<p> Upon, an appeal from a decree of the Court of Quarter Sessions of Nelson county. </p>

<p> Upon an appeal from a judgment of the Franklin District Court. </p>

<p>Where A delivered the bond of a third party to B, agreeing that if he (A) did not pay B a negro slave by a certain day, the bond should become forfeited to B — Held: ThatB being in possession of his forfeit, could maintain no action against A for failing to deliver the negro by the day specified.</p>

Upon a motion for a Mandamus to be awarded him against the defendants commanding them to admit him to a seat as a justice of said county, or to show cause to the contrary.

<p> Upon a writ of error to reverse a decree of the Danville District Court. </p>

<p> Upon a writ of error to reverse a decree of the Franldin District Court. </p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Clark county. </p>

<p>To the extent that the survey upon which the elder patent issued, does not conform to its entry, it must yield to a junior patent issued upon a proper survey of a younger entry.</p>

<p> Upon a writ of error to reverse a decree of the Court of Quarter Sessions of Montgomery county. </p>

<p>To authorize a judgment upon a forthcoming bond, it must appear by the return of the officer on the execution that he took the bond, and that it had not been complied with.</p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Green eounty. </p>

<p>Before there can be any decree against absent defendants the bill must be taken pro confesso against them; and before the bill can be taken pro confesso there must be plenary evidence to the court that the order to advertise was duly published.</p>

<p> Upon an appeal from a judgment of the Danville District Court. </p>

<p> Upon an appeal from a judgment of the Qourt of Quarter Sessions of Mercer county. </p>

<p>1. A rotura to a writ of mandamus which states, as a reason for not admitting the plaintiff in the writ to take his seat as a magistrate in the county court, that he had, some five years before, been found, by order of a court, to Toe a man of unsound mind, but which failed to allege that he was then, and still continued to be of unsound mind, is not sufficient.</p> <p>2. Mere neglect of duty by a magistrate does not deprive him of his office. There must be a judgment' of ouster in a direct proceeding against him for the delinquency.</p>

<p>A defendant against whom an office judgment has been taken, has a right to have it set aside, and to be allowed to make his defense at the next ensuing term of the court.</p>

<p>1. Where a jurisdiction has once properly attached, it can be ousted only by the express words of the statute.</p> <p>2. The act creating the county of Nicholas out of a portion of the territory ■of the county of Bourbon did not oust the Bourbon courts of their jurisdiction ■of such matters as were depending before them from the territory of the new •Bounty, when the act toolc effect.</p>

<p>A fine for a contempt of court can not he sustained unless the record show that the contempt was committed in the presence of the court, and that the-defendant was present in court when the fine was imposed.</p>

<p> Upon a writ of error to reverse a judgment of the Lexington District Court. </p>

<p>■Whenever the presumption is strong that an unjust verdict has been obtained by surprise of the defendant, a new trial ought to be granted him.</p>

<p> Upon a xorit of error corum vobis. </p>

<p> Upon a xorit of error to reverse a judgment of the Court of Quarter Sessions of Jesscmine county. </p>

<p> Upon an appeal from a decree of the General Court. </p>

Upon a rehearing of so much óf a decree pronounced in the suit at the last October term, as respects the said Short’s right of redress over against Trabue.

<p>Where, by an agreement between M and F, F had an option to purchase a tract of land from M by paying him the state price and the expense of surveying it — Held: That the option must be exercised within a reasonable time, and that a delay of fifteen years, and'until after M had died and devised his land to his children, was not reasonable, and a bill for the specific execution of the agreement directed to be dismissed.</p>

<p> Upon an appeal from a decree of the Bardstown District Court. </p>

<p>Unless-the objects called for in an entry possess general notoriety in the neighborhood, or are so described that they may certainly be found, the entry can not be sustained.</p>

<p> Upon an appeal from a decree of the Washington District Court. </p>

<p> Opon an appeal from the judgment of the County^ Court of Woodford county. </p>

<p> Upon a writ of error to reverse a judgment of the Oourt of Quarter Sessions of Fayette county. </p>

<p>In ejectment tlie elder legal title must. prevail, and the court can not consider, or give effect to, superior equitable rights.</p>

<p> Upon an appeal from a decree of the General Court. </p>

<p>A defendant who has released error in a judgment at law can not afterward enjoin the judgment in a court of equity.</p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of M&rcer county. </p>

<p>Where the plaintiff in an execution directs a credit to he entered thereon as paid “in the year 1800,” without specifying the day of payment, so that a correct computation and allowance of interest can he made, the execution will he quashed.</p>

<p> Upon a writ of error to reverse a decree of the Lexington District Court. </p>

<p>How an entry to include an improvement, and lie on l)otli sides of a stream, should he surveyed.</p>

<p>Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Shelby county for £25 damages besides costs.</p>

<p> Upon a writ of error to reverse a judgment of the Danville District Court. </p>

<p> Upon a writ of error to reverse a decree of the Washington District Court. </p>

<p>Where a surety procures his principal to make a payment on their debt, the creditor can not apply the payment to other debts due him from the principal, but must apply it in satisfaction of the debt for which the surety is bound.</p>

<p> Upon a writ of error to reverse a decree of the Logan District Court. </p>

<p>1. Mandamus lies to compel a public person, or public body, to do what they, in their executive or judicial capacity, are required by law to do.</p> <p>2. The court of appeals has jurisdiction to issue the writ of mandamus to the register of the land office requiring him to perform a duty imposed on him by law.</p> <p>3. Where an act provided that the owners of entries already made should, before a certain day, appoint an agent or attorney, within the county where the land lies, on pain of forfeiting their entries — Held: That the act should not be construed to apply to owners of entries, who did themselves reside in the county where their lands were located.</p> <p>4. An act of the legislature provided “ that the further time of ten months from” a’certain day, “ be allowed the owners of entries to survey the same in any part of this state” — Held: That as the legislature had annexed no penalty, or forfeiture to a failure to survey within that time, the court could add none, and that a failure to survey the entry within the time prescribed did not render the entry void.</p> <p>5. Where the official surveyor has executed a survey upon an entry, it will be presumed that he did it within the period prescribed by law, unless the contrary is made to appear.</p>

<p> Upon a writ of error to reverse a judgment of a Magistrate of Green county. </p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Washington county. </p>

<p>Upon an appeal from a judgment of the Lexington District Court for $444.66J, for fee bills, &c.</p>

<p>1. Unless it appear by the return of the sheriff that a forthcoming bond taken by him has been forfeited, no action can be maintained thereon.</p> <p>2. After the execution of a forthcoming bond to a sheriff,.the judgment and execution were superseded by the defendant — Seldt That the supersedeas rendered a delivery of the property to the sheriff in compliance with the condition of the bond unnecessary.</p>

<p>Where the jury were sworn to try the issue joined between the parties, when no plea had been filad and no issue made up — Held; That a judgment rendered upon their verdict was erroneous.</p>

<p>1. Parol proof is inadmissible to show that the arbitrators were sworn before they proceeded to act.</p> <p>2. Unless it appear upon the face of the award, which is the basis of the judgment, that the arbitrators were sworn before they proceeded to act, the judgment can not be sustained.</p> <p>3. A court can not refer a controversy to arbitrators until a declaration, or other writing, has been filed containing a statement of the nature of the controversy.</p>

<p>Where the complainant in a bill sought to recover land in possession of the defendant, on the ground that his entry and survey were superior to the defendant’s, the complainant must, if put upon proof of his title, show that his entry was sufficiently definite and certain to be found and located, and that the survey conformed to the entry, otherwise his bill Will be dismissed.</p>

<p> On a rehearing of an appeal, &c. </p>

<p>1. In an action upon an agreement containing mutual and dependant covenants, tlie plaintiff must aver performance, or a tender of performance on his part, otherwise his declaration will not state a cause of action.</p> <p>2. No judgment can he rendered against appearance bail, unless the sheriff’s return shows that he has taken such bail, and has returned the bond to the office.</p> <p>3. A release of errors in a judgment by the principal does not bind the bail, who may avail himself of any error in the judgment, notwithstanding such release.</p> <p>4. A joint judgment against several being an entirety can not be reversed as to one defendant therein and affirmed as to another.</p>

<p> Upon an appeal from a decree of the Court of Quarter Sessions of Mason county. </p>

<p>1. An answfer which is evasive and fails to make explicit denial of charges of fraud contained in the bill, will be disregarded.</p> <p>2. Where the vendors of a town lot represented it to the vendee as 199 feet deep, when, in fact, it was but 99 feet deep, and the vendee took it upon the faith of those representations, a judgment at law for the consideration will be enjoined, and the contract of sale canceled.</p>

<p> Upon an appeal from a judgment of the Gourt of Quarter Sessions of Glarlt county. </p>

<p> Upon an appeal from a decree of the General Court. </p>

<p>1. After a jury is sworn a juror can not be withdrawn without the consent of both parties; and to withdraw a juror and discharge the jury, where the defendant has not appeared or consented, would be erroneous.</p> <p>2. But if a juror absconds, or is unavoidably taken off from the other jurors, the court may discharge the jury without consent of parties.</p> <p>3. The court can not regard an error unless it be particularly assigned by the appellant as ground of reversal.</p>

<p>1. An attachment sued out on the ground that the defendant is about to abscond can not be sustained. The plaintiff should aver that the defendant had absconded.</p> <p>2. If the plaintiff, in an attachment, fail to execute the bond required by the statute, his attachment can not be sustained.</p>

<p>1. A confession of judgment at law operates as a release of error.</p> <p>2. Where a complainant has failed to release error before obtaining bis injunction against a judgment at law, the court should not, on that account, dismiss his bill until it had given him reasonable time to appear and acknowledge a release.</p>

Upon a writ of error to reverse an order of said Court, directing sale to be made of Humphrey, a negro man slave, the property of said Hatclijf.

<p>Upon a writ of error to reverse a judgment of the Gourt of Quarter Sessions of Nelson county for £300 damages and costs.</p>

<p> Upon a writ of error to reverse a judgment of the Gourt of Quarter Sessions of Jessamine county. </p>

<p> Upon an appeal from a judgment of the Gourt of Quarter Sessions of Jessamine county. </p>

<p> Upon an appeal from a decree of the Lexington District Court. </p>

<p>1. Where the enacting clause of'a statute is ambiguous, recourse maybe had to the preamble, and to contemporaneous exposition in aid of its construction.</p> <p>2. The most natural and appropriate way of construing a statute is to construe one part by another, and, if possible, to give effect to each clause, sentence and word in the act.</p> <p>3. How a certain entry should be surveyed.</p>

<p>Where it appears upon the face of the declaration that the assumpsit was for money lost at gaming, the judgment can not he. sustained.</p>

<p> Upon a writ of error to reverse a judgment of the Gourt of Quarter Sessions of Jefferson county. </p>

<p> Upon a writ of error to reverse a judgment of the Gounty Court of Shelby county. </p>

<p> Upon a motion for a peremptory Mandamus. </p>

<p>No judgment can he rendered against a sheriff for failing to take sufficient hail until the hail has heen adjudged insufficient hy the court.</p>

<p> Dpon a writ of error to reverse a judgment of the Gourt of Quarter Sessions of Pendleton county. </p>

<p> TJpon a writ of error to reverse a judgment of the Danville District Gourt. </p>

<p>'1. A lunatic may make a will if it be shown that he was of disposing memory at the time of doing so.</p> <p>2. The statute authorizing the making of nuncupative wills requires that the testator should have called upon some person present to take notice that such' was his will, or words of the same import — Held: That a literal compliance was not necessary, and that if it certainly appeared what was the testator’s intention the will would be sustained.</p>

<p> Upon a motion for leave to withdraw the bond executed and filed by her on obtaining a supersedeas. </p>

<p>1. A bail bond signed by tbe obligors is sufficient, although their names are not recited in the condition.</p> <p>2. Since the act of 1779 the court may render judgment for the interest on a single bill without- the intervention of a jury.</p>

<p>Where the owner of real estate sold it, first to W and then to L, and L, in good faith and without notice of the previous sale to W, obtained the first conveyance — Held; That his title must prevail against W in a court of equity.</p>

<p>Where the report of commissioners appointed to ascertain the value of rents and improvements, presents no error upon its face, and no notice is given of the intention of a party to controvert it, it is error for the court to set it aside.</p>

<p> Upon a writ of error to reverse a decree of the Franklin District Court. </p>

<p>How certain conflicting entries should he surveyed.</p>

<p> Upon a rehearing of an appeal from a decree of the General Court. </p>

<p> Upon a writ of error to reverse a judgment of the Franklin District Gourt. </p>

<p>A statute permitted money lost at gaming to be recovered by action commenced within three months. Where the money was lost on the 1st of May, 1799, and the record did not show when the writ was sued out, but the declaration was not filed until October, 1801, the court presumes that the writ was not sued out within the time prescribed by the act.</p>

<p>1. Where two agree to exchange land, but before the conveyances are perfected, it is discovered that the title of one is defective, the other can not, in general, be compelled to convey until the defect is cured.</p> <p>2. But where, in such case, the party complaining of the defect, has been let into possession, and has disposed of the land, and is unable to restore it, and theré has been no eviction, he will be decreed to convey, and left to his covenants for indemnity against eviction.</p>

<p>1. An indorsement on an execution is as mucli a part of the execution as if it had been inserted in the body thereof.</p> <p>2. It is not necessary that a replevy bond should state that the execution had been levied on the real or personal property of the defendant, or that it was entered into for an estate taken in execution and restored to the debtor.</p>

<p> Upon a writ of error to reverse a judgment of the Gourt of Quarter Sessions of Mercer county. </p>

<p> Upon a writ of error to reverse a judgment of the Gourt of Quarter Sessions of Nelson county. </p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Green county. </p>

<p>An execution out of date before it is levied, gives the sheriff no authority to take property under it, nor does it authorize the taking of a replevy bond,</p>

<p>' 1. Whether the instrument tendered in evidence is variant from the one stated in the declaration is a- question of law for the court, and can not be referred to the jury.</p> <p>2. In those cases where the law does not require a contract to he in writing, parol evidence is admissible to prove such portions of the contract as were not embraced in the writing.</p> <p>3. Where, in a building contract, the parties agreed upon the size of the brick to be used, and the rule by which the work was to be measured, but omitted to embody these stipulations in the written memorial of their contract — Held: As it was an agreement which the law did not require to be written they could be proved by parol evidence.</p> <p>4. It is contrary to established principles that both parties should claim damages in the same action.</p> <p>5. In an action to recover the price 'for erecting a building, the defendant can not plead in bar, or by way of set off, that the building was not completed within the time specified in the contract, but must resort to his independent action for damages.</p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Hardin county. </p>

<p>The defendant, in an action in the lower court, can not assign errors here which he waived in that court.</p>

<p>The levy of an execution after the return day is unauthorized and illegal, and a replevy bond taken after such levy is without authority, and will he quashed.</p>

<p>Upon a writ of error to reverse a judgment of the GouH of Quarter ' ■ ■. ■ Sessions of Livingston county.</p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Christian county. </p>

<p> Upon an appeal from a decree'of the General Gourt. </p>

<p> Upon a writ of error to reverse a decree of the Gourt of Quarter Sessions of Hardin county. </p>

<p> Upon an appeal from a decree of the Court of Quarter Sessions of Bourbon county. </p>

<p> Upon a writ of error to reverse a judgment of the Gourt of Quarter Sessions of Franklin county. </p>

<p>X. It is a general rule of pleading that the declaration must show a title in. the plaintiff to have the relief demanded.</p> <p>2. In an action on a bond given to the Commonwealth, which the statute authorizes to be put into suit by any person injured by a breach thereof, it is necessary that the declaration should set forth both the breach and the inj ury the plaintiff had sustained, and also the provision of the act authorizing him to sue.</p>

<p>Only bonds, bills, and promissory notes for money or property, are assignable by statute so as to vest the right of action in the assignee.</p>

<p> Upon a writ of error to reverse a judgment of the Gourt of Quarter Sessions of Lincoln county. </p>

<p> Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Shelby county. </p>

<p>In ejectment the plaintiff must show title in himself or he can not recover.</p>

<p> Upon a writ of error to reverse a judgment of the Lexington District Court. </p>

<p> Upon an appeal from a decree of the late Lexington District Court. </p>

<p>An action can not be maintained in the name of the assignee on a bond not assignable by law at the time of the assignment.</p>

<p> Upon an appeal from a decree of the Lexington District Gourt. </p>

<p> Upon an appeal from a decree of the Circuit Court of Mercer county. </p>

<p> Upon an appeal from a judgment of the Lexington District Court. </p>

<p> TJpon a writ of error to reverse a decree of the Court of Quarter Sessions of Mercer county. </p>

<p>Although a party has acknowledged an account presented against him by another to he correct, yet he is not estopped to show that the acknowledgment was founded on a mistake, and that the account is not correct.</p>

<p>1. The proceedings of a county court depriving a party of Ms license to keep a ferry must show the existence of some of the grounds prescribed in the statute authorizing the revokal.</p> <p>2. An act of the legislature authorizing a county court to deprive citizens of their rights and property in a summary way must be strictly pursued, and no presumption will be indulged to uphold the action of a court based on such an act.</p>

<p> Upon an appeal from a judgment of the General Court. </p>

<p>This court will interpose as well where' a new trial has been improperly granted as where refused by the lower court.</p>

<p>Where, by the agreement of submission, the arbitrators were to appoint a time and place for the parties to attend on them with their witnesses, and their award did not show that any time or place had been appointed by them, the award was void and the judgment thereon reversed.</p>

<p>1. A court of equity should not decree the specific conveyance of land against the heirs of the obligor }n the title- bond without clear proof of the payment of the consideration. \</p> <p>2. The presumption arising from the' lapse of time that the consideration agreed to be paid for land covenanted to be conveyed, has been paid, is overcome by the production of the bond for the consideration by the heirs of the covenantor, uncanceled and without credit indorsed.</p>

<p>Where, hy an order of the county court, one of the rooms of the court-house was assigned to its clerk as an office in which to keep his records, the circuit court has no authority to compel the clerk to give up the possession of the room for the use of its jurors until the order of the county court, putting him in possession, had been rescinded.</p>

<p> Upon an appeal from the decree of the General Court. </p>

<p>An execution will he quashed on which the clerk fails to indorse a credit to which the judgment shows it is entitled.</p>

<p>What degree of notoriety in tlie objects called for in an entry will be sufficient to uphold it.</p>

<p>1. This court will not, upon a second appeal, examine or consider any question litigated and decided on a former appeal in the same cause. •</p> <p>2. Where the occupants of land are decreed to pay rents, profits, and waste to the owner, they can not require him to give bond to refund the same in case the land shall be recovered from him by a superior title.</p>

<p>1. A settlement calling to include an improvement must he surveyed in a square with the improvement at the center, and the lines to the cardinal points. 1</p> <p>2. A pre-emption to he located adjoining a settlement must adjoin it in equal portions on all sides and lie in a square with the lines to the cardinal points.</p> <p>3. Although a settlement and pre-emption have not heen surveyed according to law, yet, if they would have included the land in controversy had they heen so surveyed, the complainant, claiming under a younger entry, can not recover.</p>

<p> Upon a writ of error to reverse a judgment of two Magistrates of Washington county. </p>

<p>1. "Where neither of two conflicting surveys is shown to have been made conformably to the entries, the one upon which the elder legal title is obtained must prevail.</p> <p>2. The compromise of a dispute between parties concerning the interference of their surveys is a sufficient consideration to uphold an agreement by one of them to convey the disputed land to the other, and the chancellor will specifically enforce such an agreement.</p>

<p> Upon a writ of error to reverse, a decree of the Circuit Court of Bourbon county. </p>

<p>The right of a widow to renounce the provisions of her husband’s will and to take her dower and distributable share in his estate, being limited to twelve months by law, a court of equity has no power to extend the time for her to make the election beyond that period.</p>

<p> Upon an appeal from a decree of the General Court. </p>

<p> Upon a writ of error to reverse a decree of the Danville District Court. </p>

<p>Lands can not be sold under execution for tbe payment of a debt contracted before the passage of the act subjecting lands to the payment of debts, although the judgment was rendered after the passage of that act.</p>

<p> Upon a writ of error to reverse a decree of the Circuit Court of Fayette county. </p>

<p>A.special bail against whom judgment has been recovered by scire facias, and who has paid the debt, can not recover the amount thereof by motion against the principal debtor under the act empowering securities to recover damages in a summary way.</p>

<p> Upon a writ of error to reverse a judgment of the Franklin Circuit Court. </p>

<p>Matter pleadable in abatement, but which was not pleaded, can not be assigned for error.</p>

<p>Whore land has heen taken in execution and the execution returned without a sale, or relinquishment of the levy, the issual of a second execution while the first'levy stands undisposed of, and all proceedings thereon, are illegal.</p>