Volume 20 — Kentucky Reports

Chancery, Appeal from the Monroe Circuit; Christo. Tompkins, Judge. Executors, &c. Assets. Set off in Equity. Statute subjecting choses in action to Creditors. [This and many other of the following cases, having been argueid before Chief Justice Bibe was appointed, he did not participate in their decision, and is therefore noted as absent.]

<p>Judgment in favor of M'Kinney, &c. for an undivided moity on a special verdict.</p> <p>Holmes &c. contend the court erred in setting aside the first verdict which was for them & for a mandate for judgment on it.</p> <p>Grounds of the new trial.</p> <p>New trial may be granted for surprise in the rejection of testimony.</p> <p>If the decision be obviously correct, it cannot surprise.</p> <p>In all cases where the decision is correct, the surprise must be shown something more than a mere affidavit of the fact.</p> <p>If there are several plaintiffs, the affidavit of the surprise of one who does not appear to have had the exclusive management of the case, is not sufficient.</p> <p>Where the evidence rejected is obviously and palpably correct, the affidavit of the party that he was surprised cannot avail.</p> <p>It ought to appear, at least, that the affliant had good reason to believe the evidence was admissable; that his dependence on it was not owning to his negligence, and that its place could be supplied on a new trial.</p> <p>If all stated in the affidavit may be true, and yet the party have been negligent, he cannot have a new trial for surprise.</p> <p>Decision of the circuit court granting a new trial and judgment on a subsequent verdict for the other party reversed, and judgment directed on the first verdict.</p>

<p>Declaration.</p> <p>Special count or the award.</p> <p>Evidence under the special count.</p> <p>Instructions moved by Waggoner and overruled.</p> <p>The statute does not prevent two binding themselves jointly by parol in a contract for the benefit of both—But an agreement of one entered into as surety for the original party who remains bound, is declared void.</p> <p>If the credit is given to the defendant, though the co trust is for the benefit of another not bound, the case is not within the statute—Otherwise, if both undertake by parol in a contract for the benefit of one only—or then the surety is not bound.</p> <p>Valuable consideration for the assumpsit of the debt of another, does not take the case out of the statute.</p> <p>Plea of set off.</p> <p>Replication--a singular one.</p> <p>Rejoinder.</p> <p>Expense as to the set off.</p> <p>Instructions moved by defendant, and overruled.</p> <p>A default or an affirmative special plea for replication in assumpit, admits a demand of the adversary, but not the amount of it, that must be proved.</p> <p>Plea of set off of 2,500 dollars, replication that defendant was in debt to plaintiff 3,000 dollars, and paid the 2500 in part thereof, and still owed the 500 dollars; rejoinder he had not owed the 3,000 dollars; The plaintiff has the onus pro bandi as to the 2,500 dollars, and must avoid it by proving the debt to him, or he fails.</p>

<p>Motions.</p> <p>Error to the General Court; John P. Oldham, sole Judge.</p> <p> Revenue. Clerks. Motions. Statutes. Notice. Practice </p>

<p>Assumpsit.</p> <p>Error to the Franklin Circuit; Henry Davidge, Judge.</p> <p> Assignor and Assignee. Diligence by suit. Sales of promissory notes Contracts implied. Warranty. Pleading. Indebitatus Assumpsit. </p>

<p>Chancery.</p> <p>Error to the Madison Circuit; George Shannon, Judge.</p> <p>Damages. Covenant. Bank Paper. Parol and written evidence. Equity.</p>

<p>Statement</p> <p>To make the copy of an enrolled deed evidence, the certificate of proof, or acknowledgement and regis'ration recorded with it must be transcribed and all certified that it may appear the statute was observed.</p> <p>Motion for new trial.</p> <p>Surprise may be grounds for a new trial, but the rejection of copies of deeds, having no certificate of registration, but only the words “A copy teste,” signed by the clerk, is not sufficient cause of surprise.</p> <p>It ought, in such case, at least to appear that the want of the proper certificates had not been discovered by the counsel till after the commencement of the trial, and that the error was the clerk's, and the emission could be supplied.</p>

<p>Chancery.</p> <p>Error to the Montgomery Circuit; Silas W. Robbins, Judge.</p> <p> Conditions. Rescission of Contracts. Equity Jurisdiction. Receipts. Evidence. Parties. Practice. </p>

<p>Ejectment.</p> <p>Appeal from the Bullitt Circuit; Paul I. Booker, Judge.</p> <p>Boundary. Courses & Distances. Instructions.</p>

<p>Assumpsit.</p> <p>Error to the Mason Circuit; Adam Beatty, Judge.</p> <p> Statute of Limitations. Executors and Administrators. Davestavit. </p>

<p>Declaration in debt on a under seal.</p> <p>Plea, non est factum.</p> <p>Person by whom the note purported to be signed as attorney for the obligors offered to prove its execution, without accounting for the absence of the subscribing witness.</p> <p>The attesting witness, if in the power of the party, must be called to prove the instrument.</p> <p>—That the attending witness best knows the facts, is not the only reason he is prefered.—</p> <p>—The better reason for the preference of the subscrib-witness, is that he is the witness chosen by the parties.</p> <p>An attorney to execute a sealed instrument for his principal must be constituted by a deed. The authority came to be confered by parol.</p>

<p>Presumption is in favor of the judgment of the circuit court.—See the case.</p> <p>A certiorari will not be awarded by the court ex officio, where, without it the judgment will be affirmed.</p>

<p>Statement.</p> <p>The 9th sec. of the Act of 1800, (2 Dig. L. K. 671,) authorising judgment against the sureties in the bond, on the dissolution of the injunction, is unconstitutional & void.</p> <p>The decision of this court given shortly after the passage of the Act, and the long acquiescence in the decision, held sufficient against the act.</p>

<p>Chancery.</p> <p>Error to the Greenup Circuit: Silas W. Robbins, Judge.</p> <p> Mortgages. Jurisdiction. Cancelment. Practice. </p>

<p>Declaration in assumsit on an award upon a parol submission by executors.</p> <p>Evidence of a submission by one of two executors of one testator, with the executor of the other testator, and award accordingly.</p> <p>Evidence objected to, but admitted.</p> <p>Bill of exceptions.</p> <p>Proof of a submission by one of two executors will not support a declaration in name of both.</p> <p>An arbitrament and award, if valid merges the original demand, and no action can afterwards be maintained but on the award.</p> <p>In an action by two on contract, there cannot be a recover, on evidence of a contract with one only.</p> <p>An action on an award upon a submission by an executor, of a demand on a contract with the testator, must be in his personal, not juduciary character--executors may be added as description, &c.</p> <p>If one only of two executors submit to arbitrament, the other cannot be united in an action on the award.</p>

<p>Ejectment.</p> <p>Appeal from the Todd Circuit; Benj, Shackelford, Judge.</p> <p> Grants. Head right lands. Statutes. Evidence. Estoppels. </p>

<p>Bill heard without answer, and dismissed.</p> <p>Pickett’s obligation to Bramblett for 500 acres of land.</p> <p>Assignments of Pickett’s obligation.</p> <p>Bramblett and Starke’s agreement.</p> <p>Possession.</p> <p>Decree against Pickett opened.</p> <p>Starke gives his part of the land to Henderson.</p> <p>Henderson settles the land.</p> <p>Improvements.</p> <p>Agreement between Bramblett, Starke and Pickett’s heirs, and decree.</p> <p>Claim of complainant for improvements.</p> <p>Question stated.</p> <p>Sub-purchaser will be protected against the acts of vendor or vendee, prejudicial to his right, and he may have specific execution.</p> <p>In such case the complainant’s claim of equity must be complete to the holder of the legal title, and all must be made parties.</p> <p>If sub-purchase waive his claim, and go for compensation for improvements against the legal title holder; he must shew the same complete chain of equity and make the same parties.</p> <p>One who purchases land in litigation on the contingencies of the vendor's success becomes a privy to the decision that may be rendered, and his claim will be concluded by it.</p> <p>An allegation of the bill contradicted by the exhibit refered to, avails nothing.</p> <p>Ground of complainant’s claim for improvements.</p> <p>Bona fide possession defined by Hardwick.</p> <p>Complainant’s claim overruled.</p>

<p>Plaintiff Cockrell’s title.</p> <p>Verdict and judgment for M’Quinn the defendant.</p> <p>Boundaries of Reynold’s grant for 126,140 acres, read in evidence by defendant.</p> <p>Instructions of the court as to boundary.</p> <p>Where there is no controversy as to the objects boundaries of the patent is exclusively matter of law to be pronounced by the court,</p> <p>The calls were to run from a corner on a river, “thence down the river, these several courses,” (giving the courses and distances but no corners,) “to the beginning, but when reduced to a straight line, is 3,140 poles,” and no marked lines or corner-appeared : held the river was the boundary.</p>

<p>Chancery.</p> <p>Error to the Nelson Circuit; Paul I. Booker, Judge.</p> <p> Pleading in Chancery. Practice. Injunction. Damages. Statutes, Rescission of Contracts. Trustees, and Cestui que Trusts. Bar by former Decision. </p>

<p>Bill on the entry.</p> <p>Entry of John Lutrill.</p> <p>Evidence as to Boonsborough called for, but no boundary shewn</p> <p>Decree of the circuit court.</p> <p>Act of Virginia reserving lands for the towns in Kentucky.</p> <p>Extract from the act.</p> <p>An entry calling to adjoin a town before the 640 acres had been surveyed, cannot be laid down upon the lines afterwards surveyed for the boundary of the town.</p> <p>The act contemplated no certain figures for the towns.</p> <p>Hence a call to adjoin such a town, (having no boundary) is not a sufficient call to give the entry position.</p>

<p>Chancery.</p> <p>Error to the Shelby Circuit; Henry Davidge, Judge.</p> <p> Assignee and obligor and assignor. Equity. Specific. Relief Vendor and vendee. Jurisdiction. Injunctions. Covenants. Mortgages. Contribution. Practice in Chancery. Mandates. Pleading. Decrees. </p> <p>Farther statement and the question for decision propounded.</p>

<p>Debt.</p> <p>Error to the Montgomery Circuit; Silas W. Robbins, Judge.</p> <p> Assignee and obligor. Statutes. Gaming. Assignments. </p>

<p>Chancery.</p> <p>Error to the Bourbon Circuit; Geo. Shannon, Judge</p> <p>Equity. Jurisdiction. Execution. Slaves.</p>

<p>Chancery.</p> <p>Error to the Floyd Circuit; Silas W. Robbins, Judge.</p> <p> Rescission of Contracts. Possession. Mandate. Dismissal without Prejudice, Costs. </p>

<p>Chancery.</p> <p>Error to the Lincoln Circuit; John L. Bridges, Judge.</p> <p> Partition of Slaves. Statutes. Equity. Costs. </p>

<p>Scibe facias.</p> <p>Error to the Madison Circuit; Geo. Shannon, Juctgs.</p> <p> Mesne Process. Return Term. </p>

<p>Covenant.</p> <p>Error to the Franklin Circuit; Henry Davidge, Judge.</p> <p> Contracts. Commonwealth’s Paper. Damages. </p>

<p>Assumpsit.</p> <p>Appeal from the Greenup Circuit; Silas W. Robbins, Judge.</p> <p> Private Statutes. Frauds and Perjuries. Pleading. Infants. Constitutional Law. Lien. Debtor and Creditor. </p>

<p>Chancery.</p> <p>Error lo the Clarke Circuit; Geose Shannon, Judge.</p> <p>Head rights. Entries. Forfeiture. Surveys. Patents. Jurisdiction. Equity. Statutes. Mesne profits. Par ties. Champerty. Sale of pretence titles.</p>

<p>Statement.</p> <p>Judgment of the county court.</p> <p>Plea of former decision and acquittal.</p> <p>One acquittal on the merits in a case bastardy is a bar to a subsequent proceeding.</p> <p>Time of the birth of the bastard shall be correctly stated in warrant.</p> <p>If the time of the birth be untruly stated in the warrant, an acquittal upon it will not bar a subsequent proceeding, on a warrant with the true time.</p> <p>Judgment shall be that the bastard’s father shall pay money, not Commonwealth’s bank paper.</p>

<p>Petition & Summons.</p> <p>Error to the Fayette Circuit; Jesse Bledsoe, Judge.</p> <p> Names. Petition and Summons. Averment. </p>

<p>Statement.</p> <p>Declaration on a covenant of warranty.</p> <p>Objections to the declaration.</p> <p>Not necessary in a declaration for a breach of a covenant of warranty in a conveyance to alledge that defendant had notice of the recovery by the adverse title.</p> <p>So, in assumpsit on condition the promisee perform a certain act to even a stranger.</p> <p>So, on a bond to indemnify obligee from alimony and debts of his wife's notice of suit for such cause need not be averted.</p> <p>Where the covenant is for payment in the heris of the covenantee, non payment to him as no breach.</p> <p>Where a feoffment is on condition, he shall pay the feoffee or his heir, the payment shall not be to the executor.</p> <p>An obligation to pay the heir of J. S. is not charged by payment to him.</p>

<p>Scire facias for execution on a recognizance-</p> <p>Judgment of the circuit court.</p> <p>Recognizance was in a case of Bastardy.</p> <p>In a scire facias the recognizance is no part of the record, unless made so by bill of exceptions.</p> <p>Scire facias lies to have execution of debts of record only.</p> <p>Case of bastardy in the county court may be continued, and a recognizance be taken of the putative father for his appearance.</p> <p>Judgment in a scire facias that defendant make his fine to the commonwealth by the payment, &c. and may be taken, &c.; is erroneous—For on such a judgment, the process of execution is not the same as on the proper judgment in debt.</p>

<p>Statement.</p> <p>Articles of agreement between Ballard, the purchaser, and Davis, the seller of a tract of land.</p> <p>Ballard failing in the payments, Davis recovers judgment at law.</p> <p>Ballard’s bill for injunction.</p> <p>Jarman and Davis, their agreement refered to in Ballard’s bill.</p> <p>Davis’ answer.</p> <p>Davis makes his answer a cross bill against Ballard and Jarman, defendants.</p> <p>Answers to the cross bill.</p> <p>Decree of the circuit court.</p> <p>Condition in a decree, that one party pay, on the other surrendering possession of the land, without ordering a surrender, or reserving it to the court to determine on the performance, disapproved.</p> <p>Where a bill claims a specific performance, and the purchaser resists it, and denies the title, he must shew a clear title, or such as he professed to sell.</p> <p>If the seller cannot have specific performance, he cannot have the aid of a court of equity in effecting any remedy under it.</p> <p>Dismissal of bill, in such case, will not bar an action at law, if the party have right.</p> <p>An obligee may take another obligation from others for the same demand, and unless taken in lieu of the former, both will be obligatory.</p> <p>Relief now granted, because not prayed.</p>

<p>Ejectment.</p> <p>Error to the Mason Circuit.; William P. Roper, Judge.</p> <p>Conveyances. Fraudulent Deeds. Creditors and Purshasers. Devisees Heirs. Executors. Executions.</p>

<p>Assumpsit.</p> <p>Appeal from the Fayette Circuit; Jesse Bledsoe, Judge.</p> <p> Pleading. Orders for Property. Notice. Bills of Exchange. </p>

<p>Error is not presumed to the decisions of the circuit court in granting a new trial.</p> <p>Agreement to try the cause by 11 jurors is valid.</p> <p>Declaration.</p> <p>Evidence.</p> <p>Where it appears other testimony besides that set down was given, this court will presume it supported the decision of that court.</p> <p>An action of deceit lies as well where there is an express warranty as where there is not.</p>

<p>Scire facias</p> <p>Error to the Boone Circuit; John Trimble, Judge.</p> <p> Record. Exceptions. Evidence, Recognizance. Practice. Continuance. Joint and Several Judgments. </p>

<p>Execution, replevin bond, and execution thereon, quashed, on obligors motion.</p> <p>Grounds of the motion stated.</p> <p>1st ground.</p> <p>2d ground stated.</p> <p>Party not prejudiced cannot quash for clerical mistakes in the officers—If there is a sufficient correspondence between the judgment, execution and replevin bond, to connect them, no motion to quash can be sustained for a variance.</p> <p>On a judgment for a penal sum to be discharged by a less sum really due, and on a replevin bond the execution should be for the penal sum with a memorandum that it is to be discharged by the sum due—But if it be for the latter sum without naming the penalty, it is sufficient.</p> <p>Omission to fill the blanks with the amount of the different items of damage, interest and cost composing the aggregate of the replevin bond, is no ground for quashing it.</p>

<p>Assault & Battery.</p> <p>Error to the Madison Circuit; Geo. Shannon, Judge.</p> <p> Pleading. Moliter manus imposuit. Wounding. </p>

<p>Evidence of the title of plaintiff's lessors.</p> <p>Instructions of the court.</p> <p>Where the husband by length of adverse possession had acquired the right of possession, the county court shall assign dower to his widow—</p> <p>But—</p> <p>If the husband's estate in the land at his death is but an estate in equity, the county court has no jurisdiction to assign dower to his widow.</p> <p>Farther statement of the evidence of lessor's title.</p> <p>An assignment of dower by the county court where the husband’s estate was an equitable one only, is not evidence to prove title in an ejectment.</p> <p>Where the occupant enters under an executory contract, so long as he looks to the legal title holder for a conveyance, the limitation forbears to run against the legal title holder, tho' it runs for his benefit against others.</p>

<p>Statement.</p> <p>Dates of the writ and trial.</p> <p>Plaintiff’s evidence, and instructions for non suit.</p> <p>Defendent's relied on the act of January 7th, 1824 forfeiting lands for non cultivation.</p> <p>Defendant cannot rely on the act of 1824, forfeiting lands for non-cultivation without shewing; his case embraced by the acts concerning occupying claimants.</p> <p>If defendant does not shew himself with in the occupant laws, he cannot avail himself of the act of 24 forfeting lands for the want of cultivation.</p>

<p>Chancery.</p> <p>Error to the Mercer Circuit; William L. Kelly, Judge.</p> <p> Absent Defendants in Chancery. Practice. Parties. Answer. Bill of Review. Bar by former Decision. Error. </p>

<p>The scire facias.</p> <p>Demurrer.</p> <p>Plea of no casa.</p> <p>Joinder in the demurrer to plea withdrawn.</p> <p>Scire facias on a recognizance of special bail, must state that the principal had not paid the judgment or surrendered his body in execution—recital that execution of the judgment remained to be done, is not equivalent.</p> <p>Withdrawal of a joinder in demurrer to a plea on which the court had given judgment for plaintiff, does not withdraw the plea.</p> <p>No ca sa to a scire facias vs special bail, was a good plea.</p> <p>It is still so to a scire facias on a recognizance entere into before the Act of ’21 abolishing imprisonment for debt.</p> <p>Where one of several disjunctive conditions of an obligation afterwards becomes impossible by the act of God or the law, the obligation is saved and no notion will lie on it.</p> <p>No constitutional question arises here.</p>

<p>Chancery.</p> <p>Error to the Clarke County Court.</p> <p> Executors. Administrators Slaves. Commission. </p>

<p>Will Case.</p> <p>Error to the Shelby Circuit; Henry Davidge, Judge.</p> <p> Parties in will cases. Error. Statute of Limitations. Executors. Revocation. Republication. </p>

<p>Statement.</p> <p>Allegations of Ramsay’s bill.</p> <p>Bough’s answer.</p> <p>Decree of the circuit court.</p> <p>To admit parol evidence to prove a covenant to pay $100, no more saying was for the payment of Commonwealth’s paper would be against the general rule, that the highest grade of evidence shall prevail.</p> <p>The rules of evidence as to parol evidence against the written agreement of the parties, is the same in chancery as in comnon law courts.</p> <p>Mistake in drawing, and fraud, in either procuring the writing to be executed, or in framing it differently from what was intended, and concealing that difference by address, may be shewn by parol evidence.</p> <p>It seems the allegation, that the writer agreement was drawn for dollars merely, instead of commonwealth’s paper “by either fraud or mistake “without saying which, is not sufficient to admit the parol proof.</p> <p>Tho bare ground that the contract was for commonwealth’s paper and the note written otherwise without shewing the note was fraudulently drawn, is not sufficient to admit the parol evidence.</p>

<p>Devise in the will of Wilson the elder of the estate in question.</p> <p>Partition.</p> <p>Evidence of the waste, held prima facia to prove it.</p> <p>Instructions of the court</p> <p>Son sues his father’s widow:</p> <p>Devise thus—I give to my wife one third the tract of land whereon I now live for her life—I give to my son H, the tract of land on which I now live excluding my wife’s part above named, passes to the son the remainder in the wife’s part.</p>

<p>Allegations of Keel’s bill against Neal for an account of inspection fees.</p> <p>Bill pro confesso and decree for complainant.</p> <p>Common law action of account has been supplanted by the bill in equity.</p> <p>In a bill by one inspector against the other for an account of fees the “additional inspector” is not a necessary party.</p> <p>Where the bill in such case charges the amount due the complainant was at least a certain sum stated, if defendant fail to answer, complainant may have a decree for that amount.</p> <p>No interest for either past or future time can be calculated or allowed in a decree on a bill for an account or demand before unliquidated.</p> <p>Allegations of the bill—held to charge a minimum sum to be due with sufficient certainty to authorize a decree for it on a bill pro confesso.</p> <p>Inspection fees, and how collectable.</p> <p>Dates in the proceedings.</p> <p>On a bill for account if the defendant fail to answer, complainant may have attachment or decree for the minimum charged to be due.</p>

<p>Case when formerly here.</p> <p>When the case was before here plaintiffs replication to defendant's plea was held bad.</p> <p>On the return of the cause to the court below, replication was not withdrawn but another filed.</p> <p>Where this court reverses the judgment on a replication to defendant’s plea and adjudges the replication insufficient the plaintiff must withdraw it and reply de novo.</p> <p>If he filed another replication without withdrawing the one condemned, it is error.</p> <p>Plea by a free negro, that when the writing sued on was deliverd by him, he was a slave is good.</p> <p>Whereas cause is not, really for trial defendant may be allowed to file an additional plea.</p>

<p>Credit on the note payable in cash for $280 in Kentucky paper, not allowed to be sealed.</p> <p>Where it appears that the same judgment in substance ought to have been rendered if no parol proof had been introduced, as was given, and the same is according to right, this court will not reverse for an error in instructions.</p> <p>Jury need not notice credits endorsed on a note on an inquiry of damages—nor in trying an issue of payment and less is relied on by defendant.</p> <p>Practice of the clerk in jugment in debt by default in specialty, to note the credit its endorsed on the note at the foot of the judgment as credits upon it, approved.</p> <p>An endorsement of a credit for so many dollars in Kentucky paper, on a note for cash, shall not be sealed—But on a judgment by default on such a note, the clerk shall note a credit for the nominal sum—the Judge if called on shall so direct in parol agreement between the assignor and assignee as to credits indorse cannot be son the amount due on the note assigned—much an agreement between payor and payee might have the effect.</p>

<p>Roberts’s file.</p> <p>Whittington’s answer.</p> <p>Jones’s testimony.</p> <p>Decree perpetuating the injunction.</p> <p>Two witnesses are necessary against an answer, only where the facts are in respondent's knowledge, and he an vors positively.</p> <p>Under the plea of payment defendant may prayer a discharge in Bank notes, negotiable notes on individuals, or a debt already due from the payee to the payor, delivered and accepted, or discounted as payment.</p> <p>Payment in full at the day cannot be relied on in equity, after judgement.—Otherwise of payment after the pay, for it could not be pleaded at Common law, and Statute which allowed it does not affect the jurisdiction of equity.</p>

<p>Covenant.</p> <p>Error to the Linson Circuit; John L. Bridges, Judge.</p> <p> Pleading. Breaches. Condition precedent. Demurrer. Practice. Error. </p>

<p>Statement.</p> <p>Assignment of the error.</p> <p>One who undertakes to recover land for a part of it, is not a necessary party to a bill by the adversary, enjoin a judgment in ejectment, thus obtained against him.</p> <p>If defendant deny an allegation of an interest of a third person in the property, and it is not proved, he cannot afterwards, assign for error, that that person was not made a party.</p> <p>Certainty to a common intent only, required in notices to take depositions.</p> <p>In a suit in the Circuit Court for a lot, at the County town and where the parties all reside in the County, a notice to take depositions at “the court house,” is sufficiently certain.</p> <p>Statement.</p> <p>Purchase by Ragor, Whitlook’s ancestor; from Barbour’s ancestor; possession under the purchase, and recovery in ejectment by Barbour.</p> <p>Whitlock obtains a perpetual injunction, on his bill in the circuit court.</p> <p>Facts alleged and upperted by the roofs.</p> <p>In a bill for injunction against a judgment in ejectment, the complainant cannot rely on what would prove he had the legal title; the judgment proves that in the lessor; be can go only on a claim in equity.</p> <p>Grounds of equity in complainant’s bill.</p> <p>Parol contract for land, made before the statute of frauds and perjuries, may be enforced.</p> <p>Defendant’a objections to the complainant’s equity.</p> <p>Testimony of one witness, of the parol agreement for the purchase of land, where the property was accordingly taken possession of, improved and held, is sufficient.</p> <p>Judge Owslew holds, that the bill for the specific performance of a parol contract for land, could not be maintained after five years, if the defendant pleads the statute, or rely on it in his answer; otherwise, the chancellor or cannot apply the bar.</p> <p>Chief Justice holds, that though the general rule is, he bar by lapse of time, must be set up in the pleading— yet where a great lapse of time appears in the bill unaccepted for, the chancelor may reuse relief on that ground only, though the defence is not made.</p> <p>Where the purchaser, under an executory contract enters on, improves, and continues in the possession of the land, the lapse of time is no defence to his bill for specific execution.</p> <p>Possession is notice to all adversary claimants.</p> <p>Effects of possession in giving right, and entitling the party to a decree for the title in equity.</p> <p>Statutes of limitation and analagous rules in equity are all for the protection of the possessor, never to bar his claim.</p> <p>An equitable claim united to possession, does not decay by time, but grows in strength as it grows in years, until it becomes an indefeasible title.</p> <p>Parol purchases and in 1789, under which possession had been held for 36 years, enforced by perpetual injunction against a judgment in ejectment, recovered by vendor’s heir.</p>

<p>John Dunlap’s will, containing the devise.</p> <p>Statement of the facts.</p> <p>Decision of the circuit court on the agreed case.</p> <p>Power of disposing of our estates after our death, is not by natural law, but is one of the positive institutions of society.</p> <p>Here no person can control his estate real or personal longer after his death, than for lives then in being, and for 21 years and some months afterwards.</p> <p>Devise over after the death of the devisee of the particular estate leaving the no issue at her death, is valid.—</p> <p>-Otherwise, if it be after an indefinite failure of issue after the particular estate determined.</p> <p>In a devise of land—dying without issue imports an indefinite failure of issue, and is not confined to a failure at the demise of the parent—Otherwise, if any circumstance indicate the contrary intention.</p> <p>In devises of personalty, and of terms for years, the construction is a failure of issue at the death, not afterwards.</p> <p>Cases cited.</p> <p>Intention of the testator controls the signification of particular expressions.</p> <p>It shall not be supposed the testator attempted to create a remainder against law, but the other construction shall be prefered.</p> <p>The words and leaving no lawful issue, held to be here a contingent devise by implication to the children—But as they take by purchase, their mother’s estate is not enlarged.</p> <p>Issue may be a word of either purchase or limitation.</p> <p>Where there is an express devise or life, and then a devise over to the children, they take by purchase, not representation.</p> <p>Devise over in fee after two life estates sustained.</p> <p>An agreement that if the law be for plaintiff, on the agreed case, judgment shall be for him, but no execution should issue, it seems must be made a part of the judgment.</p> <p>Extract from Dunlap’s will.</p> <p>Statement of the subsequent events.</p> <p>One question stated.</p> <p>In slaves, a remainder can be limited only where it could be created of a chattel personal, at common law.</p> <p>Of executory devises.</p> <p>Devise to a daughter,and if she die without issue, to the widow for life, and at her death, leaving no issue, to his nieces, on the death of the daughter and wife without issue, the nieces take by the executory devise.</p> <p>There may be a devise over after a life estate, is a personal chattel,</p> <p>Argument of appellant stated.</p> <p>Dying without issue has two significations, the natural and technical-But</p> <p>A devise to one “during her life, and at her death, leaving no lawful issue, then I will,” &c. the remainder over has but one meaning, and the instant of her death, the contingency is fixed.</p> <p>An express estate shall not be destroyed to enlarge another by implication.</p> <p>If words bear a lawful and an unlawful signification, the former shall be preferred.</p> <p>Same words in different parts of a will may be given different constructions, that the operation may be lawful and all have effect.</p> <p>Conclusion.</p>

<p>Statement.</p> <p>Grounds relied on is a motion for a non suit.</p> <p>Action on a bond executed to a feme convert, whose husband afterwards dies, and who marries another husband, shall be in the name of them both, calling her by her latter name.</p> <p>Bond sued executed to obtain a supersedeas in a writ of error coram vobis.</p> <p>Circumstances of the execution of the bond, as in other like cases.</p> <p>Bond executed in the clerk’s office, to obtain a supersedeas on a writ of error coram vobis, which the clerk refused to endorse without it is valid-It was not against law, and was delivered to the clerk for the obligee.</p>

<p>Craig’s deed to Feland, of January 20, 1795, for 110 acres.</p> <p>Craig’s deed to Emmerson of 21st June, 1796, for 100 acres.</p> <p>Craig’s deed to McHatton of 12th October, 1798, for 400 acres.</p> <p>Craig and McHatton, their deed to Estis and Buford, of 16th November, 1798, for 500 acres.—</p> <p>—Defeasance endorsed on the deed.</p> <p>Enrollment of the deed, and endorsement.</p> <p>Estis and Buford, their deed to Feland of 28th Jan’y. 1800, for the 500 acres.</p> <p>Endorsement by Estis and Buford on their deed, to Feland.</p> <p>Enrollment.</p> <p>Writ de ideota inquirendo 12th May 1813 and by inquisition thereon, James Craig found a lunatic, 12th July, 1814.</p> <p>Bill by Craig's committee, to set aside his deeds of conveyance.</p> <p>Bill of Revivor.</p> <p>Answer of Feland's heirs.</p> <p>Estis and Bufor’s answer.</p> <p>Emmerson’s answer.</p> <p>Amended bill of Craig’s heir.</p> <p>Supplemental bill.</p> <p>Answer of Feland's heirs to amended bill; lapse of time relied on.</p> <p>Second amended bill.</p> <p>Deed of Feland's heirs to Craig's committee.</p> <p>Decree of the circuit court.</p> <p>Touching the effect of the inquisition; finding Craig a lunatic on his prior acts.</p> <p>Evidence and decision of the question of Craig’s sanity.</p> <p>Question stated.</p> <p>Discussion of the effect of the recital in the deed and endorsement, whether to make the deed absolute or in trust.</p> <p>Endorsement on the absolute deed of the mortgagee to a purchaser, of the mortgagor’s assent, held to be a release of his equity of redemption.</p> <p>Query—whether the mortgagee, authorized by the deed to sell, can pass the absolute title without the chancelor's decree.</p> <p>—Mortgagor's assent to the sale and absolute conveyance of the mortgagee for payment of of the debt, and his receipt of the overplus, may be provided by parol, and his equity of redemption be extinguished thereby.</p>

<p>Chancery.</p> <p>Error to the Madison Circuit; George Shannon, Judge.</p> <p> Fraud. Mistake. Currency. Parol Evidence. Subscribing Witness. Confessions. </p>

<p>Chancery.</p> <p>Error to the Madison Circuit; George Shannon, Judge.</p> <p> Insanity. Powers of Attorney. Fines and Recoveries. Estoppel. Registration of Deeds Recognizances and Statutes. Equity. Husband and Wife. Arbitration. </p>

<p>Tibbs, John, his 20,000 acre entry again held valid.</p> <p>Elder grant and bar by the adversary possession for 20 years relied on.</p> <p>Decree of the circuit court.</p> <p>Right of the holder of the superior entry to maintain his bill against an adversary claimant commences with the issuing of the adversary grant.</p> <p>Hence the commencement of the time to her the bill is not postponed to the date of the junior grant.</p> <p>Alledged arrangement with the widow in possession, relied on by Bodley as avoiding the bar by the lapse of time.</p> <p>Character of the occupant’s possession may be changed from the adverse to the amicable, and so the bar avoided.</p> <p>Promise of the adversary claimant to the widow in possession, that she shall not be turned out, does not avoid the running of the limitation.</p> <p>Residence of the ancestor before his death, and continued occupancy of the widow afterwards, will constitute a bar for the heirs against an adversary claimant—</p> <p>—In such case the widow could not change the character of her possession without the heirs’ concurrence.</p>

<p>History of the title to which each party asserts right.</p> <p>Hendricks’ grounds of claim.</p> <p>Barclay’s grounds of claim.</p> <p>Decree of the circuit court.</p> <p>Persons thro’ whom the claim in equity is derived, necessary parties.</p> <p>Orders of advertisement against unknown heirs, may be published only eight weeks: against the living two months.</p> <p>Mandate for time to be allowed appellee to being the parties before the court, or the bill dismissed.</p>

<p>Allegations of the bill of the heirs of Williamson.</p> <p>Bill pro confesso against May’s heirs.</p> <p>Answer of Johnston's heirs.</p> <p>Answer of Nash's heirs.</p> <p>Decree of the circuit court.</p> <p>Decree for one defendant against another, on complainant’s prayer.</p> <p>If a copy of a bond is read below without objection, it cannot be objected here, that the original was not produced.</p> <p>Infant complainants are bound by the decree and shall not have time after full age to shew cause against it.</p> <p>Objections to the report of a commissioner, appointed to lay off land, ought to be made in the circuit court.</p> <p>Covenant to convey 100 acres of land, a part of a tract of 600 acres, "to be taken off either side or end, equal in quality and value with the balance,” gives to the covenantee after breech by covenantor, the right to select the side or end.</p>

<p>Bill by Bailey and wife, against her father’s representatives, for distribution and partition.</p> <p>Questions stated.</p> <p>Words of inheritance never were required to pass the entire estate in slaves or other chattles, by either sale, gift or bequest.</p> <p>Found that Baily’s wife had received her distributive portion before the marriage.</p> <p>Executor is accountable for the portion of a distributee dying without issue, to his executor, and not to the surviving distributees.</p> <p>Facts in relation to the claim for partition of the land.</p> <p>Estopal.</p> <p>Touching the claims in the land of Baily and wife, by descent to her from her brothers and sisters.</p> <p>Claim of the widow Duncan, by devise from the purchasers from Baily, to the interest claimed by him.</p> <p>Baily’s allegations of fraud against his sale, and prayer for a rescission.</p> <p>Sale decided to be fair.</p> <p>Husband may sell the usufructuary estate, in the wife’s hands, but not the fee, without her concurrence.</p> <p>Where one co-tenant sells all his present estate in lands and afterwards the intesest of another descends on him, he shall held it.</p> <p>Is the widow entitled to lands of which her husband dies possessed, not having the legal title, but a right in equity to it?—</p> <p>—Not at common law.</p> <p>Cases of dower claimed on common law, in trusts and uses.</p> <p>Statute of Virginia and Kentucky, a to dower and curtesy.</p> <p>Widow is entitled to cover in lands of which another is seized to the use of, or in trust for the husband, which results from, or is declared by deed by the statute.</p> <p>It was held in Virginia the widow was entitled to dower, where the husband had an equity, in an estate in fee, which would authorize the chancellor to decree the legal title—</p> <p>and so is the law here.</p> <p>Acceptance by the widow of a bequest of slaves does not of itself bar her of dower in the lands.</p> <p>If the bequests to the widow are intended to be in lieu of dower, she shall elect, and not take both as doweress and under the will.</p> <p>In England the intention must appear on the face of the will. In Virginia testimony dehors has been received.</p> <p>Bequest of a slave to the widow, and disposition by the will of all the balance of the estate to others shall not be construed as intended to be in lieu of her dower in lands.</p>

<p>Decree of the circuit court.</p> <p>Appellee’s derivation of claim.</p> <p>It appearing in the exhibits and proofs the husband of the deceased woman is her heir, allegation of complainant that her heirs are unknown, and publication against them as such, will not do.</p> <p>Ross’ heirs not before the court.</p> <p>To advertise against one, not made party by the bill, and afterwards insert the name as an amendment will not do.</p> <p>Deeree for an undivided moiety to be valid on the payment of a sum of money, without providing for the failure of payment, disapproved.</p>

<p>Sale by Chapline, as the attorney in fact for Rogers, to Garnett.</p> <p>Selection of the land and conveyance by Rogers.</p> <p>Calls of the deed.</p> <p>Garnett’s possession and sales to others.</p> <p>Allegations of Rogers’ bill for the surplus land, or compensation for it.</p> <p>Answer of Garnett.</p> <p>Decree of the circuit court.</p> <p>If, in executing a contract for a certain quantity of land, an extraordinary surplus is conveyed by mistake, the vendor may have relief, if he applies in time-Query, as to the general rule for the relief in such cases.</p> <p>The question to be discussed.</p> <p>An equity may be rebutted by parol proof.</p> <p>Statement of the facts by reference to the diagram.</p> <p>Farther statement by reference to the exhibits, surveyor’s reports and evidence.</p> <p>Testimony of the witness.</p> <p>Illustration of the manner the parties calculated in fixing and agreeing on the boundaries of the contract conveyed.</p> <p>Farther illustration of the calculations, and motives in the transaction.</p> <p>Another view of the principles the parties acted on.</p> <p>Evidence on the face of the debt that the sale was in gross by the abuttals; and not by the acre.</p> <p>Where the parties upon the ground, with the implements and hands, decline a measurement, but adopt old lines, calculating on surplus, and the deed does not furnish the data for the quantity, but mentions it as description only, the sale shall not be taken as by the acre, but in gross.</p> <p>Reference to the history of the Green river country, and settlement of its lands.</p> <p>Remarks on the manner of the controversy.</p> <p>Conclusion.</p>

<p>Chancery.</p> <p>Appeal from the Wayne Circuit; John L. Bridges, Judge.</p> <p> Exceptions to Answers and Depositions. Practice in Chancery. Error. </p>

<p>Chancery.</p> <p>Error to the General Court; Adam Beatty, Vno. Montgomery and John Trimble, Judges.</p> <p> Entries. Big Bone Lick Creek. Head of a Creek. </p>

<p>Craud of the a Ferries across the Ohio to a Gannon, on the county court.</p> <p>Grant renewed by the court.</p> <p>Houston’s grant for a ferry within less than a half mile.</p> <p>Cotton, O'bannon's heir, opposes the grant to Houston—Evidence on the case in the county court.</p> <p>Statutes concerning Ferries across the Ohio.</p> <p>The intervention of a small creek, impassable at its mouth, will not warrant the establishment of a ferry on the Ohio, within less than a mile and a half of a former ferry.</p> <p>Neglect of the owner of a ferry, to attend and transport passengers, is no cause for the establishment of another ferry within the prohibited distance—The ferryman is subject to fine—action on his bond—and the grant may be repealed by the court.</p>

<p>Chancery.</p> <p>Error to the Fayette Circuit; Jesse Bledsoe, Judge.</p> <p> Trustees. Mortgagees. Purchasers. Specific performance. Damages. Costs. </p>

<p>Judgment on a note for money won at gaming, may be enjoined in equity—But money paid on such a note, cannot be recovered back by bill</p>

<p>Chancery.</p> <p>Appeal from the Christian Circuit; Ben. Shackleford, Judge.</p> <p> Head rights Entries. Forfeiture. Redemption. Actual Settlers. Limitation, Equity. </p>

<p>Judgment of the court in the bastardy case against John Gillon.</p> <p>Motion of the mother against one of the sureties, and the executors of the other.</p> <p>Instalment due on a bastardy bond, may be recovered by motion in the county court.</p> <p>In such motions, the executor of a deceased obligor and a survivor can not be united.</p> <p>At common law, the action remained against the survivor in the joint obligation——The statute only authorized the action on the joint obligation against the executor of the decedent. It does not give a joint action against executor and survivor.</p> <p>In motions on bastardy bonds, the rule that forbids uniting the surviving obligor and decedent's executor, applies.</p>

<p>Chancery.</p> <p>Appeal from the Madison Circuit; George Shannon, Judge</p> <p> Bar by Lapse of Time. Entries. Parol Evidence Surveyor’s plats and reports. Evidence. </p>

<p>Covenant.</p> <p>Error to the Clarke Circuit; George Shannon, Judge.</p> <p> Abatement. Variance. Amendments. Verdict. Judgment. Error. Evidence. </p>

<p>Ejectment.</p> <p>Error to the Harrison Circuit; John Trimble, Judge.</p> <p> Sheriffs Sales of Land. Executions. Lien. Practice. Error. Leases. Evidence of Title. Creditors. Fraudulent Conveyances. Tenant at Will. </p>

<p>Chancery.</p> <p>Appeal from the Woodford Circuit; William L. Kelly Judge.</p> <p>Locators. Specific performance. Construction. Evidence. Pleading in Chancery. Decrees. Practice in this Court. Error. Partition. Improvements. Warranty. Mandates.</p>

<p>Chancery.</p> <p>Error to the Nelson Circuit; Paul I. Booker, Judge.</p> <p>Entries. Marked trees. Evidence. Presumptions.</p>

<p>Chancery.</p> <p>Appeal from the Shelby Circuit; Henry Davidge, Judge.</p> <p> Dower. Trusts. Seizin. </p>

<p>Chancery.</p> <p>Appeal from the Logan Circuit; Henry Broadnax, Judge.</p> <p> Mortgages of Slaves. Equity. Jurisdiction. </p>

<p>Allegations of the bill of Violet and others, claiming under the elder entry and junior grant—Bowman’s answer and decree for the relief.</p> <p>After acquired lands did not pass, by will, in 1732-</p> <p>An entry of land in the name of a dead man was not an appropriation of it</p> <p>Act of 1793 vested the heir with the land entered, after the date of the will, made in 1782, and not the devisee.</p> <p>In contests with claims maintained under the act of ’93, they are regarded as originated at that date.</p> <p>Decree for Violet reversed.</p> <p>Bowman's cross bill, alleging he had recovered in ejectment, but Violet had delayed him by bill in equity and proceedings under the occupant laws, till his demise had expired, and the limitation had run, praying for possession of the land.</p> <p>Demurrer to the cross bill not decided on below, because the decree on the original bill superseded it, taken up in this court, on reversing that decree.</p> <p>In England the chancellor has interfered to control the evidence, pleas & controversies, set up in suits at law, on the ground that the advantages had been obtained by fraud, and were unconscientiously insisted on-</p> <p>—Query, as to the extent of this power of the chancellor here.</p> <p>Occupants of land under titles from the government, are prima facia, bone fide, as against adversary claimants, and may, in good conscience, use all legal means of defence against their actions; and the chancellor will not prohibit them.</p> <p>Character of the controversies on the adversary claims to land in Kentucky—necessity of the statutes of limitations—and propriety of giving them full effect.</p> <p>Equity cannot prevent the possessor from the defence of the limitation, unless he has acquired the advantage by artifice and fraud upon his adversary.</p> <p>That an ejectment is delayed by the fair management of the defence, until the demise expires, is no ground for the interference of equity.</p> <p>Nor will the delay of the habere facias, by injunction on a bill upon the entry, and proceedings under the occupant laws, till the demise has expired, authorise the chancellor to help him.</p> <p>Where the demise is about to expire, pending a bill with injunction on the entry, and proceedings under the occupant laws, if the plaintiff moves it, the occupant shall consent to the extension of the demise, or the court will allow execution to go—But if plaintiff at law sleeps (and defendant need not wake him,) till his demise is out, his remedy is gone.</p> <p>Judgment in ejectment is a warrant for the plaintiff to enter, tho' his writ is suspended by proceedings under the statute for improvements-</p> <p>Query, as to the effect of the statute against forcible entries and detainers, be that as it may, the entry interrupts the possession and avoids the bar by lapse of time.</p> <p>Example of utmost chancelor (in Ireland,) has gone in disregard of the limitation at law-</p> <p>-Query, whether the chancellor here would go so far.</p>

<p>Judgment on which the order in question was made for execution.</p> <p>Note at the foot of the judgment for stay of the execution.</p> <p>Order of the court for execution.</p> <p>An order of the court for execution in a case where it could not go, without scire facias, may be reversed here.</p> <p>Where the stay of the execution at the foot of the judgment is indefiinite, (as till T. P. may order it,) if a year and a day elapse there must be a scire facias—</p> <p>—That T. P. died, and the plaintiff in the judgment became, his administrator, does not change the case.</p>

<p>Summary.</p> <p>Error to the Nelson Circuit; Paul I. Booker, Judge,</p> <p> Copy. Evidence. Revocation. Statutes. Construction. </p>

<p>Statement.</p> <p>Amendment of the declaration by adding a new count.</p> <p>When an additional count is added after plea pleaded, and the trial is had as if the plea had been afterwards, it shall be so considered, and is well.</p> <p>Joint demise can be made only by joint tenants, and all, and no more must unite, and the plaintiff’s evidence must so prove the title</p> <p>Where the lessor claims title by descent, the death of the ancestor before the date of the demise, must be proved.</p> <p>Justice’s certificate of the inability of the witness to attend, is not competent to prove the fact, to admit the deposition taken de bene esse.</p> <p>The justice styling a person plaintiff's agent, who cross examines the witness, does not prove the fact so as to dispense with notice.</p> <p>To prove that persons are heirs of another, the witness ought to state the death of the ancestor, and relationship of the parties.</p>

<p>Slander.</p> <p>Error to the Bracken Circuit; Adam Beatty Judge.</p> <p> Slander. Pleading. Evidence. Affidavit for Continuance not amendable. </p>

<p>Covenant.</p> <p>Error to the Clarke Circuit; George Shannon, Judge.</p> <p>Evidence, Receipts. Bonds of Indemnity. Release. Pleading. Covenants. Parties. Estoppel.</p>

<p>M’Gee’s bill for injunction.</p> <p>Allegations of the bill.</p> <p>Talbot’s answer and interrogatories.</p> <p>Answer to the interogatories by Logan and Burks.</p> <p>M’Gee’s exceptions to Talbot’s answer, and farther answer ordered.</p> <p>Admissions of defendants offered to supply the defect in Talbot’s answer, received.</p> <p>M’Gee’s answer to Talbot.</p> <p>Logan adds a prayer to his answer for a decree over against Talbot.</p> <p>Decree for injunction as to part of judgment.</p> <p>Decree for Logan againts Talbot.</p> <p>Decree for Burks against Logan.</p> <p>An attorney at law may— refer the suit to arbitration —admit facts on the trial, or in pleading-and confess judgement.</p> <p>This court cannot originate the enquiry into the authority of the attorney in the circuit court.</p> <p>One defendant cannot have a decree against a co-defendant without a cross bill with proper prayer and process, or answer as in an orignal suit.</p> <p>Decree against one defendant in the bill below and to the writ of error here, in favor of another defendant, reversed on the plaintiff’s assignment of error.</p>

<p>Chancery.</p> <p>Appeal from the Washington Circuit; Wm. L. Kelly Judge.</p> <p>Executors. Partners. Forgery. Bills to perpetuate testimony. Cancelment of Deeds. Equity. Jurisdiction. Judicial Decisions. Statutes.</p>

<p>Bill on an entry for the legal title held under the elder grant.</p> <p>Derivation of title to the complainants.</p> <p>Answer of defendants.</p> <p>Decree of the circuit court for complainants.</p> <p>If the chancellor below dismiss the bill absolutely, when there was a want of parties, and he had the discretion to dismiss without prejudice or nisi, the necessary parties should be made in a reasonable time, this court will reverse and direct the bill to be rightly dismissed, but peremptory— and not give time.</p> <p>Where the circuit judge decrees for complainant, when the necessary defendants were not before the court, and they have the decree reversed for that cause, the complainants will he allowed a reasonable time to make and bring in the other defendants.</p> <p>If, on a bill upon an entry claiming by devise or descent, the entire estate, the proof does not shew a derivation of the to any part, this court will direct an absolute dismissal of the bill, or affirm such a decree, tho’ the proper parties were not before the court to authorize a decree for relief.</p> <p>—But if complainant shews title to a moiety, and the decree-was for him below, he shall have time to make the holder of the other moiety a party, and—</p> <p>—If the decree was against him, he shall have it reversed, because absolute; but the mandate shall be for a dismissal, without prejudice--at once and not after time allowed.</p> <p>There appearing to be a defect of parties, both complainant and defendant, under the entry and elder grant, on the reversal of the decree granting the relief— time allowed to make and bring in all necessary parties.</p> <p>All holding any portion of the estate under the superior entry and elder grant, must be parties to the bill on the entry.</p> <p>Parties not being before the court, discussion of the merits declined.</p> <p>Censure on the transcript of the record.</p>

<p>Chancery.</p> <p>Appeal from the Fayette Circuit; Jesse Bledsoe, Judge.</p> <p> Election of the creditor in appropriation of payments. </p>

<p>Judgment for costs for defendant Clarke against the plaintiff ejectment, and scire facias, to revive for the administrator. Plea.</p> <p>Demurrer to the plea.</p> <p>Scire facias to revive a judgment in name of an administrator, was given by the statute of Westminster the 2d ch. 45, in force here.</p> <p>Removal of a cause by a change of venue, does not remove a judgment previously rendered for the costs of a continuance, and-— —So a scire facias to revive the judgment shall still be in the court that rendered it.</p> <p>If defendant plead an ill plea in abatement, and plaintiff demur in bar, and the court give judgment in bar, the judgment will be reversed, and judgment in chief directed for plaintiff, unless defendant ask to amend, and not for a discontinuance — Act of 1811.</p>

<p>Ejectment.</p> <p>Appeal from the Woodford Circuit; William L. Kelly Judge.</p> <p>Evidence. Letters of Attorney. Special authority. Recitals. Geography. Bills in Equity. Lapse of time. Possession. Sheriff’s Return. Widow. Heirs. Estoppel. Landlord arid Tenant.</p>

<p>References to the former decisions of the cause by this court.</p> <p>One of the heirs of the patentee after the return of the cause from this court the second time, moves to file his answer and make new defence, alleging he had not been before in court.</p> <p>Abner Hynes makes the same motion.</p> <p>Motions overruled-and correctly.</p> <p>Errors cannot be assigned in decisions of the circuit court, given prior to the previous revision of the cause here, though that was on the appeal of the other party—Expedil reipublicæ ul sit finis litium.</p> <p>One to whose defence the bringing in an omitted party was not necessary, cannot assign for error the refusal of the circuit court to admit him, after the cause had been twice here.</p> <p>The circuit court has not power after an interlocutory decree made or directed by the mandate of this court, to admit new parties to make the same defence, or to allow the same parties to introduce another defence existing before the first decree.</p> <p>An appeal by the defendants, does not bring before this court the decision of the circuit court overruling the motion of one not before a party to be admitted to defend, whose presence in the cause was not necessary to the rights of the others.</p> <p>Appearing in the cause as guardian ad litem and agent, and being named as representive of a decedent in an order for revivor to which there was no appearance, does not make the person a legal party.</p>

<p>Appeal from the Franklin Circuit; Hekry David ge, Judge.</p> <p> Appeals to the Circuit Courts. Jurisdiction. </p>

<p>Statement of the cause up to the decision of it when before here, 1 Marsh. 606.</p> <p>Petition of the defendants just arrived at full age, to open the decree.</p> <p>Decision of the circuit court.</p> <p>Matter of the petition.</p> <p>Where an interlocutory decree is appealed from by consent, the interlocutor affirmed or directed by this court, is not afterwards in the power of the inferior court —as would have been the case had the cause never have been here.</p> <p>Infant defendants in the circuit court who appeal to this court, are not allowed by this court time after full age to shew cause against the decree here— nor in the circuit court as to the decree this court may affirm or direct to be entered—</p> <p>-But decree in execution of the mandate of this court, in which the insert are not actor shall allow them, as in all other decrees against them as defendants, six months after full age to shew cause.</p> <p>It is error in a decree against infant defendants not to reserve for them the privilege of shewing cause within six months after full age-</p> <p>Decree for this cause reversed with out costs.</p>

<p>Judgment for Vance, assignee of Morehead vs. Brown.</p> <p>Brown's bill for set off of demands upon Morehead.</p> <p>Morehead’s deposition to prove demands to repel the set-off of debts on him asserted in the bill against him and his assignee—</p> <p>—Held to be incompetent because of his interest as to the costs of the suit.</p> <p>Mandate.</p>

<p>Service of the declaration by acknowledgment endorsed.</p> <p>Trial, bills of exception, verdict and judgment, without defendant or plea.</p> <p>Discretion of the court in awarding a certiorari ex efficio.</p> <p>Acknowledgment of the service of a declaration in ejectment must be proved.</p> <p>Tenant appellant having the cause reversed here for want of notice, the proof of the service of the declaration dispensed with, but not of the common order.</p> <p>Mandate.</p>

<p>Chancery.</p> <p>Error to the Hardin Circuit; Paux, J. Booker, Judge.</p> <p> Fraud. Specific performance. Rescission of contract. Chancing bargains for land. </p>

<p>Probate.</p> <p>Appeal from the Washington County Court.</p> <p>Jurisdiction. County Courts. Probate of Lost Wilis. Copies.</p>

<p>Chancery.</p> <p>Appeal from the Fayette Circuit; Jesse Beedsoe, Judge.</p> <p> Evidence. Conveyances. Warranty. Estoppel. Letters of Attorney. </p>

<p>Title of Austin by patent to him.</p> <p>Conveyance by the patentee to C. Austin, R. Austin, H Timberlake, and J. Crenshaw.</p> <p>Conveyance by C. Austin to Hughes and Chapman.</p> <p>Chapman and Hughes convey their purchases, and under them the defendants residents in Fleming deduce their title.</p> <p>Bodley’s bill, in Mason, on his entry for land held under the elder grant, partly, in Mason and partly in Fleming county, against the occupants in Fleming and the non-resident claimants of the residue.</p> <p>Publication against the nonresidents.</p> <p>Answer of the resident defendants.</p> <p>Decree of the circuit court.</p> <p>Circuit court in which no defendant resides, or is served with process, and where no part of the land is situate, has no jurisdiction of n bill on the entry.</p> <p>Suits in chancery are local —as for partition, dower, &c. and there the bill must be where the land is situated — or transitory, as where the decree shall be against the person, and here the jurisdiction is in the circuit, the defendant may be served with process.</p> <p>Mason circuit court has not jurisdiction of a bill on the superior entry for the legal title to land partly in that and partly in Fleming county, against non-residents holding the legal title to parts in both counties but having no possession, and residents owning and occupying parcels in Fleming.</p> <p>Where the elder patentee is not in possession, the bill on the adverse entry is not a local but transitory suit, and must be brought where the process can be executed —The bill in such case cannot be maintained in the circuit where the land is situated, by publication against the non-resident defendants.</p>

<p>Cates’ claim under the entry of Hargus.</p> <p>His claim under Cotton.</p> <p>Loftus’ answer.</p> <p>Amended answer, relying on the pendency of another suit.</p> <p>Common law pleas of former recovery offered to bills in equity.-</p> <p>—Objected to, but admitted!!—</p> <p>—Replication of nul tiel record—</p> <p>—Trial by the judge, and bill dismissed!</p> <p>Difference between the pleadings in the common law courts and in equity, and remarks on the misapplication of them in our courts.</p> <p>Plea of former recovery to a bill quia limet must shew that the same subject matter and the right to the same land was before decided upon.</p> <p>Such matter may be pleaded in the chancery (not the common law) form or maybe relied on in equity, but —in either there must be an affidavit.</p> <p>Allegations and proofs as to the possession.</p> <p>If there is no equity in the bill, there can be no error in the dismissal.</p> <p>Where one in possession of a tract of land purchaed an adjoining tract, he shall be presumed to have extended his possession over it.</p> <p>Bills quia timet for one in possion, were before the statute.</p> <p>One who purchases a tract of land adjoining the tract in his possession, may maintain his bill quia timet, under the statute, against an adversary claimant to his new acquisition.</p>

<p>Chancery.</p> <p>Appeal from the Trigg Circuit; Ben. Shackleford, Judge.</p> <p> Bar by former decision. Error. </p>

<p>Obligation declared on.</p> <p>Questions presented by thepleadings.</p> <p>Connection between father-in-law and son-in-law, is sufficient in law to uphold an agreement.</p> <p>Obligation contended to be not due till obligor’s death, held to be payable presently.</p> <p>An obligation of the father-in-law for money to the son-in-law in consideration of the connection, is not affected by the death of the daughter.</p> <p>Interest.</p> <p>Judgment and Mandate</p>

<p>Debt.</p> <p>Appeal from the Jefferson Circuit, John P. Oldham, Judge.</p> <p> Appeal bonds. Conditions. Construction. Statutes. </p>

<p>Detinue.</p> <p>Error to the Christian Circuit, Benj. Shackleford Judge</p> <p> Jurisdiction. Parties to actions at law. Process. Statutes. New trial. Costs. </p>

<p>Covenant.</p> <p>Error to the Green Circuit, Chris’r. Tompkins, Judge.</p> <p> Pleading, Verdict. Damages. Error. Affidavits to pleas. Abatement. Obligations. Dates. </p>

<p>Chancery .</p> <p>Error to the Mason Circuit; Adam Beatty Judge.</p> <p> Obligations for land. Deeds. Construction. </p>

<p>Ejectment.</p> <p>Error to the Montgomery Circuit; Silas W. Robbins, Judge.</p> <p>Evidence. Decrees. Sheriff’s sales. Bar by former Decision. Instructions.</p>

<p>Motion.</p> <p>Error to the Pendleton Circuit; John Thimble, Judge.</p> <p> Constitutional law. Occupant laws. Sheriffs Sales of lands. Computation of time. </p>

<p>Mandamus.</p> <p>Appeal from the Oldham Circuit; Henry Division Judge.</p> <p>Public buildings of the County. County Courts. Mandamus. Jurisdiction.</p>

<p>Indictment.</p> <p>Error to the Green Circuit; Benjamin Monroe Judge.</p> <p> Roads may be proved to be public by their long use. </p>

<p>Indentures of apprenticeship by Herndon of his son Gideon to M'Grath, a tailor.</p> <p>Declaration by M'Grath against Herndon, on the indenture, alleging for breach the departure of the son from his service.</p> <p>Plea by Herndon, that his son was forced to abandon the service of M'Grath because of his ill treatment.</p> <p>Verdict for defendant; motion for new trial; overruled, and judgement.</p> <p>Assignment of error.</p> <p>In covenant against the father on the indentures of apprenticeship of his son to a tradesman, for his son’s departure, plea, than the pl’ff. had, by wrongful and cruel treatment, driven the son from his service, is sufficient.</p> <p>If the evidence, all admitted to be true, conduces in no degree to prove the plea, and the jury find for defendant there must be a new trial.</p>

<p>Debt.</p> <p>Error to the Clarke Circuit; George Shannon, Judge.</p> <p> Specie, gold and silver. Statutes- </p>

<p>Judgment against, Thompson for him to execute bond with surety, for the support of the bastard.</p> <p>Thompson departs.</p> <p>Order for a writ to issue to take and imprison Thompson till he execute bond.</p> <p>Thompson is arrested and gives bond.</p> <p>Motion in the county court by the guardian of the bastard, for the first instalment on the bond against Thompson and his surety and judgment accordingly.</p> <p>Bond in case of bastardy must be taken payable to the commonwealth. If taken payable to the guardian the motion to recover the instalments given by statute will not lie.</p> <p>Bonds not according to the statute may be valid at common law.</p>

<p>Motion.</p> <p>Error to the Nicholas County Court.</p> <p> Parties to motions. Bastardy. </p>

<p>Question stated.</p> <p>In an action of the United States, on a bond given to secure her revenue, plea of accord with the collector, and delivery to him of whiskey in satisfaction, is no defence— —Collectors may collect the money, but cannot make a commutation so as to affect the government.</p>

<p>Chancery.</p> <p>Cross appeals from Warren Circuit; H. P. Broadnax Judge.</p> <p> Equity. Jurisdiction. Usury. Answers. Onus probandi. Compound interest. Practice. </p>

<p>Chancery.</p> <p>Error to the Loran Circuit; Henry P. Broadnax Judge.</p> <p>Principal and surety — and creditor. Bill quia timet. Equity jurisdiction.</p>

<p>Chancery.</p> <p>Error to the Warren circuit; Henry P. Broadnax Judge.</p> <p> Specfic performance. Deeds. Escrow. Delivery. </p>

<p>Decree for the junior patent on the entry.</p> <p>Entry of the Steeles-David, Samuel, Robert, and James.</p> <p>Defence.</p> <p>Leestown proved to have been notorious in 1782.</p> <p>If by taking the distance on the meanders of the river the creek and tree be found corresponding to the calls, though not marked, the subsequent locator shall not be required to proceed the distance down the river by a direct line.</p> <p>Distance, 5 miles, on the Kentucky river from Leestown, called for in an entry, shall be taken with the meanders of the river.</p> <p>Where the usual course of traveling from one point on a river to another is a direct line, the distance in an entry shall be taken on that and net the meanders.</p>

<p>Actions.</p> <p>Error to the Madison Circuit; George Shannon, Judge.</p> <p> Executions. Delivery bonds Notice. Appearance. Practice. </p>

<p>Bastardt.</p> <p>Error to the Lincoln County Court.</p> <p> Penal statutes. Limitations. Parent and child. </p>

<p>Recognizance taken on a capias issued upon an indictment and judgment for the commonwealth.</p> <p>Scire facias issue on a recognizance in ta of the moved in case of indictments, must co de against the peace and dignity of the com'th.</p> <p>Form of such a scire facias.</p>

<p>Motion by the Attorney to file an information in the nature of a qou warranto against Frazier for exercising the office of Justice.</p> <p>Petition of the Attorney, whereon he grounded his motion.</p> <p>Rule on Frazier to shew cause.</p> <p>Motion for leave to file the information, overruled.</p> <p>If the Governor commission a person a Justice of the Peace, without a nomination according to the constitution, the an ppointment is not valid.</p> <p>How the Justices of the Peace for a new county, shall be nominated to the Governor, and commissioned.</p> <p>Power of nomination in the representatives of the Senatorial districts out of which the new county is established, does not cease on the first nomination to the Governor—</p> <p>—But shall be exercised again and again,until the number of Justices allowed by law, shall have accepted the appointments.</p> <p>—It is not necessary to the exercise of this power that the Legislature be in session.</p> <p>Whether there was a constitutional nomination for a Justice of the Peace commissioned by the Governor, may be enquired into on an information.</p> <p>Acts of the Governor will be presumed to be right by the judiciary, till the contrary be alleged and proved.</p> <p>Motion for leave to file, the information, overruled, for defects in the grounds of the motion dated.</p>

<p>Chancery.</p> <p>Error the Cumberland Circuit, Chris’r. Tompkins, Judge.</p> <p> Head rights. Seminary claims. Relinquishments. Register's sales. Seven years limitation. Frauds on the State. </p>

<p>Assumpsit will not lie for the value of improvements made on land by the purchaser by parol, who fails to execute the contract.</p> <p>Query whether such improvements would not uphold a subsequent primise-.</p> <p>-As to remedy in equity.</p>

<p>Debt.</p> <p>Error to the Ohio circuit; Alney McLain Judge.</p> <p> Sheriffs. Executions. Valuation laws. Constitutional law. </p>

<p>Petition & Summons.</p> <p>Error to the Fayette circuit; J. Bledsoe Judge.</p> <p> Names. Junior. Demurrer. Identity. Pleading. </p>

<p>Covenant.</p> <p>Appeal from, and error to the Washington Circuit; Wm. L. Kelly Judge.</p> <p> Pleading by defendant. Estoppel. Recital. Conditions. Breaches. Consideration. Onus probandi. Instructions. </p>

<p>Assumpsit</p> <p>Appeal from the Jefferson Circuit; John P. Oldham, Judge.</p> <p>Bills of exchange. Bank notes. Declaration,</p>

<p>Assumpsit.</p> <p>Error to the Knox Circuit; Joseph Eve Judge.</p> <p> Variance. Consideration. Allegation and Proof. Pleading. </p>

<p>Covenant.</p> <p>Error to the Fayette Circuit; Jesse Bledsoe, Judge.</p> <p> Arrest. Bail. Statutes. Privilege of Witnesses. Abatement. </p>

<p>Chancery.</p> <p>Appeal from the Fayette Circuit; Jesse Bledsoe, Judge.</p> <p>Bills of Review. Limitation. Absent defendants, Parties, Proclamation. Decrees. Entries.</p>

<p>Motion.</p> <p>Error to the Jefferson Circuit; John P. Oldham Judge.</p> <p> Sheriffs, Motions. Statutes. Bank notes. Currency. Damages. </p>

<p>Motion.</p> <p>Error to the Davies Circuit, Alney McLain Judge.</p> <p> Replevin bonds. Supersedeas. Appeals. Damages. </p>

<p>Chancery</p> <p>Appeal from the Franklin Circuit; Henry Davidge, Judge.</p> <p> Injunctions. Practice. Specific performance. Rescission of Contracts. Lapse of time. Rents. </p>

<p>Error to the Simpson Circuit; Henry P. Broadnax, Judge.</p> <p> Registration of mortgages. Evidence. </p>

<p>Chancery.</p> <p>Appeal from the Lewis Circuit; Wm. P. Roper Judge.</p> <p>Frauds against creditors Jurisdiction. Devices. Executors Conveyances. Statutes. Executions, Estoppel Chased in action.</p>