Volume 21 — Kentucky Reports

<p> Jurisdiction. Local and Transitory. Rescisdon of Contract. </p> <p>Allegations of Morton’sbill, circuit. U°</p> <p>Prayer of the bill"</p> <p>Subpasna to Jíolson, and there executed.</p> <p>Decree on the bill without answer.</p> <p>Equity jurisdiction — in 7liai cas?s whe>re transitory — ti e pUíPhsiJqq ’1 Bl ’</p> <p>Case of a bill ¡>ythe par¿ee^wiái warranty thirty years ry claim, brought to re~clI1(l ¡-he for damages, on the ground of defect of tif01.’want of equity and jurisdiction,</p>

<p> Pleading. Technical terms. Statutes. </p> <p>Declaration on trespass quart clausum fregit.</p> <p>Demurrer, plea, trial, andjudgment for plaintiff.</p> <p>Objections which go to form, are cured by the act of 1811 — 1 Dig. 262.</p> <p>It is no more necessary to put the name of the action in a good declaration than to write Bear over a good picture of that beast.</p> <p>One who stands on his own ground, or the street, and with missiles breaks the house of another, commits a trespass quare clausum freí gil.</p> <p>Burglary</p> <p>Actofisit— 1 r with any necessity there was for adhering to the technical term in pleadings.</p>

<p> Confusion of debtor or creditor. Jlssignment. Executor. </p> <p>Obligation of G & S. to T. F. and the same G. executors, &c.</p> <p>Assignment of two of the thi ee obligees, and suit by the assignee.</p> <p>Plea of defendant.</p> <p>The same person cam-not be both plaintiff and defendant in an action at law. See l Monroe 98-9, 4Monroe452.</p> <p>One of the two obligees of a bond may assign it —But— —If one of the obligees is also an obligor, neither the assignee of the other, nor of all (lie obligees pan sue at law.</p> <p>If debtee makes debtor and another executor, the action at law is gone, though the debtor refuse to act, and dies.</p> <p>A personal sus^nended° by thePact of the party entitied to it, is forever.</p>

<p>Pleading. Breaches. Covenants. Construction of Contracts. Accord and Satisfaction* -</p> <p>Covenant sued on.</p> <p>Decíaratiori-</p> <p>Demurrer to the declaration, and plea in bar.</p> <p>Demurrer to the defendant’s pica.</p> <p>Judgment for the plaintiff ou the demurrers.</p> <p>Assignment of errors.</p> <p>When there is oue good bread! assigned, -i domurrcr to the be ovcmiled':</p> <p>But the ver““st be (.'¡any oiT'the good' breach-cs> otherwise ^aií be ar!”4 rested,</p> <p>Where II. covenanted to parchase for W. a house worth 1000, and until the purchase, in which ho stipulated ho was not to be hastened, ¡ofurni h a ilwelling for W. o,f that value: held, that a failure to furnish the dwelling was a breach of the covenant to make the purchase,</p> <p>Judgment on the declaration.</p> <p>Plea to an action for breach of a covenant to furnish a dwelling house, that the defendant paid the rent, held to bo insufficient.</p> <p>Plea of an accord &c. must allege the acceptance in satisfaction.</p>

<p>Forcible Entry and Detainer.</p> <p>Case 5.</p> <p>Error to the Mercer Circuit; Will. L. Kelly, Judge.</p>

<p> Executors. Administrators de bonis non. Sureties. Parlies. </p> <p>statement of «lie facts,</p> <p>Allegations*» tIie</p> <p>Decree of the oirouit Cftul «’■</p> <p>Successor oí torrri/o'fusal to give the counter surety, has the rights and powers of an administrator de bonis non.</p> <p>Administrator de bonis non is entitled to the chattels of tho deceased remaining in specie, but not to the proceeds of tiiose sold nor to hire of slaves.</p> <p>Sureties of the widow and her coadministrator, in their administration bond, are not liable f .r liei distributive shore nf the chattels collected and converted by her co-administrator.</p> <p>In such case the co-administrator, and he only, is liable to” her.</p> <p>In a hill for the widow's distributive share the other distributee's must be parties.</p>

<p> «Appeals. Error. Jurisdiction. County Cowrie. </p> <p>Statement of the case.</p> <p>Proceedings in establishing and altering roads.</p> <p>Where a writ of error lies in road cases, and where not.</p> <p>County rom Is are established only upon the application of individual-, and error lies only where the private right» of an individual aro prejudiced.</p> <p>No writ of error lies for the commonwealth in road oases.</p> <p>There is no precedent for such a writ either in Virginia or here.</p> <p>County courts, their juriui'iiction of road oases.</p> <p>J udp|0 Mills1 dissent.</p>

<p> Witness. Competence. Principal and Surely. Seeds. Promissory Notes. Blanks. </p> <p>Promisory u°o„llocJare^ x</p> <p>p]cas 0f ¿¡0. fcmlunt.</p> <p>Verdict and judgment for Penick.</p> <p>Instructions of the court for Penick.</p> <p>2nd Instruction.</p> <p>3rd Instruction.</p> <p>■4 th Instruction.</p> <p>Principal offered as a witness for surety, released and examined.</p> <p>Assignment of errors,.</p> <p>Principal in a promissory note, released by the surety,is a competent witness for surety in an action against him.</p> <p>i.lie evidence!</p> <p>Person signJngbis name impor,1 a"d delivering it ioJ. S. anío fiíl«pJÚie blank with an SU^~I~ j the sUpiiiiZ'.> will bind ic.a fol'i(:-</p> <p>p¡,t g.-> .¡j-oft- w.-i W •r; am] ( not aoibor^-., it to bo filled as m ease of notes and bills.</p> <p>Act of 1812, placing unsealed writings on a footing with sealed, does not altor the modo of executing them, and so blanks may bo iillod in such writings, after delivery .</p> <p>Debtor of a bank, on a note payable to an accommodation endorser, having deposited a blank for a renewal without moro saying, the officers of the bank filled it up an a joint and several obligation on him and the endorsers, and they added their signatures, held that all were bound.</p> <p>Any aJii'r.i • tioit, however immaterial, made io 'a deader promissory note, made by the ohhgoe, k ilheul ebligori.s consent, roadors it void,</p> <p>A flor a note lias been dis-i'mik^it may bo executed by sureties, lr'<bo’mdWI'1 v. ithout any ron* oousidcration.</p> <p>Obligation of the surety does not depend on his executing at the same time with the principal.</p>

<p> Pleading. Verdict. Evidence. </p> <p>If one of several broaches bo ill, a general verdict is insufficient, & judgment glial) be arrested.</p> <p>Declaration held insufficient, & plaintiff advised to begin with a now, rathet than amend old declaration.</p> <p>Kvidonee held inadmissible, because not shewn to bo relevant.</p> <p>Mandate</p>

<p>chakcert</p> <p>Case 10</p> <p>Error to t’.io Madison Circuit: George Shannon, Judge.</p>

<p>Chancer y.</p> <p>Casv 11.</p> <p>Appeal from Pulaski Circuit: JohnL. Bridges, Judge.</p>

<p>Caso 12.</p> <p>Error to the Caldwell Circuit: Benjamin Shackleford, Judge.</p>

<p>©HANCEEY.</p> <p>©ase 13.</p> <p>Appeal from the Mason Circuit; Adam Beatty, Judge.</p>

<p>equity.</p> <p>Appeal from the Mercer Circuit; Will. L. Kelly, Judge.</p> <p>Case 14.</p>

<p>Chancery</p> <p>Caso 15.</p> <p>Appeal from the Mercer circuit; Will. L. Kelly, Judge.</p>

<p> Practice in Chanceip. Liens. Purchasers pendente lite. Executions. </p> <p>Decree; &c. in the original suit brought by-Scott, to set aside M’Millan’s fraudulent conveyances of his lands,- and subject them to the payment of >is demands.</p> <p>Decree ordering the possession to be delivered to Scott the purchaser, under his decree.</p> <p>Coleman purchases the estate under executions, on judgments obtained by other creditors pendente lite, and refuses to surrender the possession.</p> <p>Scott’s petition to the chancellor for the possession.</p> <p>Coleman resists the application of Scott and the court overrule it.</p> <p>Suit in equity by a creditor, to set aside a fraudulent deed, and to have the land sold, gives complainant a lien on the land, which is not defeated by a bona fide sale, to creditors or under an execution on the judgment of another creditor. /</p> <p>In such case, the purchaser under the execution pendente lite, will be overreached by the purchase under the decree, and the chancellor will compel him to surrender the possession on a petition.</p> <p>Practice in chancery, compelling the surrender of the possession of lands sold under a decree to the purchaser.</p> <p>Statute authorizing a writ of execution for the possession of lands decreed to be surrendered.</p>

<p> Practice in Chancery. Injunctions. Damages. </p> <p>Sale of the house and lot to Martin and mortgage on it for the purchase money.</p> <p>Judgment at law for the balance of the price.</p> <p>Martin’s bill for rescission.</p> <p>Answer of the executor of Wade.s</p> <p>Cross bill on the mortgage for the foreclosure.</p> <p>Decree of the circuit court.</p> <p>Decree dismissing Martin’s bill for rescission approved.</p> <p>Itisthe general rule that thejurisdietion of thfe chancellor in foreclosing a mortgage is merely to enforce the lien in rem., and not decree the demand in personam.</p> <p>Exceptions to therulewbero the chancellor may decree in personam of the •whole demand.</p> <p>Specific perth^enforce"ment of liens are tlie fheThancel ior>s jurisdiction of contracts foi lawl</p> <p>But when vendor has conveyed and taken amortgage for the price, and recovers a judgment at law, and then resorts to equity to foreclose his mortgage, the decree shall merely subject the land;</p> <p>jj0(]e of )n,0. ceeding to foreclose (lu> dempüon, and to sell the 'mortgaged cst:iíü slairil-</p> <p>No damages are allowed by the statute on the dissolution of an injunction to a decree.</p>

<p>Error to the Rockcastle circuit: Joseph Eve, Judge,</p> <p>A motion aj gainst the sheriff, for failing to return an execution for one month cannot bo made after two years-—Shall this timo be computed up to the day of the service of the notice, or making the motion in court ?</p>

<p> Set off. Pleading. </p> <p>Declaration.</p> <p>Pleas of defendant-covenants performed as to one breach and set off as to the other.</p> <p>Pica of set off.</p> <p>Judgment of the circuit court for tho pica.</p> <p>Set off may be pleaded in an action of covenant.</p> <p>Plea of sot off shall contain the requisites of a count in, debt,</p>

<p>Chancer*.</p> <p>Case 20.</p> <p>Error to the Clarke Circuit: George Shannon, Judge.</p>

<p>Trover:</p> <p>Case 21:</p> <p>Error to the Bourbon Circuit: Georg-e Shannon, Judge:</p>

<p>Chakcery.</p> <p>Case 22.</p> <p>Appeal from the Fayette Circuit; Jesse Bledsoe, Judge.</p>

<p>Assumisit.</p> <p>Cuse 23.</p> <p>Appeal from the Mercer Circuit; Will. L. Kelly, In l-p..</p>

<p>Summary.</p> <p>Caso 24.</p> <p>Appeal ¿from the Jessamine Circuit; Will. L. ICelly, Judge.</p>

<p>Chancery,</p> <p>Error to the Clarke circuit: George Shannon, Jtidg$.</p> <p>Case 25.</p>

<p>Debt.</p> <p>Caso 26.</p> <p>Error to the Franldin Circuit; IIemut Davibue, Judge.</p>

<p> Demises. Lessors. Amendments. Evidence. Error. </p> <p>Declaration, as filed“</p> <p>Common ordel’-</p> <p>Pica of not</p> <p>Motion to add other def. mises in the delaration allowed, and exception.</p> <p>Declaration •again amended by adding another demise in the name of a man dead before suit.</p> <p>Evidence on the trial of title in the dead lessor— —Instructions for non-suit, verdict and exceptions.</p> <p>There cannot be a recovery-in ejectment on the demise-of a man dead, before service of declaration and notice.</p> <p>Whore a demise is added-on motion of first lessor, upon his affidavit proving the lessors death years before, the declaration and notice served and the affidavit is enrolled, on defendants exception to the amendment, there can be no error in a judgment on that demise for defendant.</p> <p>If it appears a lessor was dyad before the suit, his name may be struck out on defendants motion.</p> <p>If a new demise be added by consent, the suit is then first corntaenced as to that lessor and claim.</p> <p>án additi u> al demise of a, new lessor, cannot be added to the declaration.</p>

<p>Motion.</p> <p>Case 28.</p> <p>■Appeal from the Fleming Circuit; Adam BeattY, Judge.</p>

<p>Motion.</p> <p>Case 28.</p> <p>Rrrprt.o the Upion circuit: Ai.nejr M’Leaií, Judge,</p>

<p> Occupants. Improvements. Ferries. Constitutional law.' </p> <p>Mandate for the item of the ferry to be expunged, andjudgment' to be rendered for the balance of the account.</p> <p>Act of 1820, so far as it varied the measure of the occupant’s claims and mode of recovery, was valid.</p>

<p>Chancery.</p> <p>¿ase 31.</p> <p>Appeal from the Jefferson circuit, John P. Oldham, Judge.</p>

<p> Arson. Slander. School Houses. Statutes. </p> <p>To charge a person that lie unlawfully and intentionally burnt a school house was not actionable at common law: Because"</p> <p>Burning a school house was not a criminal offonce by that law!</p> <p>Statute increasing the offences under the denomination of arson.</p> <p>I’cnal statutes shall be construed strictly, but the words “any othet house or houses whatsoever” in the statute against house burning, cannot be rejected.</p> <p>Statutes in pari materia shall bo construed together.</p> <p>School house may be the subject of arson by the statute.</p>

<p> County Creditors. </p> <p>Motion by a county creditor.</p> <p>Order of the county court rescinding tlic order making the appropriation clainird by plaintiff.</p> <p>Judgment ol' Iho county court.</p> <p>Ex parle orders of the county court reversing their orders, allowing mid ordering tho payment of claims made ata subsequent term are nought.</p> <p>After the court of c)ajms tiie county court revere!" the or(|ers aj_ lowing and directing the 0</p>

<p>ejecmekt.</p> <p>Appeal from the Christian Circuit, Benj. Shackelford, Judge.</p> <p>Case 34.-</p>

<p>Chancery.</p> <p>Case 35.</p> <p>Appeal from the Barren Circuit; Benjamin Monroe, Judge.</p>

<p> Practice. Exceptions to depositions. Bills of exceptions. ■ Witnesses. Foreign attachments. Jlgents. Judgments'. Evidence. </p> <p>Allegations 6 the bill.</p> <p>Answer of William Paul.</p> <p>Evidence.</p> <p>Decree df the circilit courts</p> <p>Exceptions to a,deposition filed below; not acted on there, but argued in this court.</p> <p>Depositions must be excepted to in. the circuit court; the exceptions insisted on before or at the hearing, , arid 1 bojudge ought to decide and admit or exclude the depositions, whatever may be his decree on the merits.</p> <p>Anoioutpraenee ds to ex-ccptions (o dii')ositions.</p> <p>Practice in Kentucky, of taking bills of exceptions in chancery causes, borrowed from the common law courts.</p> <p>Evidence objected to anu rejected by the court, ought to be taken out of the record, and noted by the clerk as rejected.</p> <p>At whatever time the question of evidence is insisted on, the judge ought to decide it.</p> <p>If the circuit court fail to decide on exceptions to depositions, this court presumes the exceptions wore waved-</p> <p>Debtor, whose debt a creditor seeks to have made out of property claimed by a third person, is interested to subject the property, and not a competent witness for the cred ilor.</p> <p>One having of°fundseSof0n an insolvent as bis agent, or being Ins transaction, may retain on other ac*13 counts a- ’ gainst a'ny other credit-of his^equaHty in equity and ad vantage at law.</p> <p>In such case, ah"u<í°mont°f of'a s'jster state in favor of™ch Sobtor'of°tho insolventparty, obtained insolent 6 pending the suit of the ors to subject the demand is[prima facie. proof of tho, debt.</p> <p>Where the fund attached, to subject which the jurisdiction of the court is claimed, escapes, the court can proced no farther, but shall dismiss the suit without prejudipe.</p> <p>Mandat*.</p>

<p> Nuncupative viills. Gifts. Donatio mortis causa. </p> <p>Statement,</p> <p>Jívidence relied on to prove a gi .</p> <p>Decision of the circuit court.</p> <p>W. on'leavky toM^D" that he would leave his him6and did so, and that if he returned he would expect to get her again* but if he did not, she should beD’s.- and W. went to Missouri and never returned, but died there: held that W’s. administrator and not D. is the owner of the mare.</p>

<p>Chancery.</p> <p>Case 38.</p> <p>Error to the Bath Circuit; Silas W. Robbins, Judge.</p>

<p>Ejectment.</p> <p>Case 39.</p> <p>firror to the Madison Circuit: Géorge Shannon, Judge,</p>

<p> Pleading. Compensation. Set off. </p> <p>Declaration.</p> <p>Pleas, non assumpsit and set off.</p> <p>Evidence.</p> <p>Objection to testimony-sustained by tho circuit court.</p> <p>In assumpsit for moneys received by defendant as plaintiff’s agent, the defendant may prove, undf r ihe grneral issue, the vfCue of' his service i.i transacting the business, and obtain the allowance in diminution of the verdict;</p> <p>Plea of sot off liot necessary when the demands ate thus connected in their origin and nature.</p> <p>British statutes of set offi</p>

<p> Specific performance, and rescission of contracts. Practice. Mandates. </p> <p>S' ecific performance of contracts.</p> <p>Boundaries of land on the Kentucky River.</p> <p>These words in a deed for taining 750" acres” held to be but a ° e</p> <p>Decree for specific performance reversed for de. feet of vendor’s title.</p> <p>On reversing the decree for specific performance, rendered on purchasers, bill, asking that, if good title shall appear, otherwise a rescission, cli» reotions given for the defendants to have leave to introduce other parties,- and make out their title.</p>

<p>ÜHAN'CERl,</p> <p>Case 42.</p> <p>Error to the Ohio Circuit; Alkey ¡VI’Lean, J udge.</p>

<p> Parol contracts for land. Specific performance, and rescis*sion of contracts'. </p> <p>Ücclaration;</p> <p>Trial, verdict and judgment ; motion tor new trial overruled, and exceptions.</p> <p>Ground for new trial, that the verdict was against the evidence.</p> <p>Evidence £iven on the trial.</p> <p>Vendee pf land by parol contract cannot recover back the con? sideration money, without shewing the vendqfceis either unable or unwilling to make the title.</p> <p>such'case be able and willing to per-tract it C°n" seems he may do it. '</p>

<p>Debt.</p> <p>Case 44,</p> <p>Error to the Cumberland Circuit; Benjamin Monroe, Judge.</p>

<p> Vendor and vendee. Liens. Notice. Mortgages. Bar. Equity. Jurisdiction- </p> <p>Woods’ bill against Lewis, to subject a tract ofland conveyed, to the payment of the purchase money.</p> <p>Bill by bank, to foreclose a mortgage given by Lewis on the land.</p> <p>Woods’ amended bill, making the bank a party.</p> <p>Answer of the bank.</p> <p>Decree of the circuit court.</p> <p>Lewis purchased of Wood, on a credit, obtain ed the title, and mortgaged to the bank.</p> <p>Lien of mortgagee without notice of a purchase on credit, who had obtained the conveyance, has the preference of the lien of thp vendor, for the purchase money.</p> <p>In such case, the condition, of the mortgagee is that of a parchas.er, having the legal advantage of the title.</p> <p>Payment of the consideration acknowledged in the deed.</p> <p>Part of the land conycy ed had been previously sold.</p> <p>Evidence that the president of the bank knew Lowis was in4 solvtinl.</p> <p>Recent dato of a conveyance of land, after the return of a fieri facias against grant- or, no estate found', is not evidence that the consideration money is not paid, and so notice to a subsequent purchaser.</p> <p>[^e bank.</p> <p>Captious obi^nced.</p> <p>In a bill aofKen túcky°theoffleers of the bank noi proper parties, and on»ht (.o be dismissed on demurrer.</p> <p>Vendor may maintain bis bill to subject the land conveyed, to the payment of the purchase money — aud</p> <p>—W hero, in such ease, the land has been mortgaged by vendee, and the mortgagee having no notice,has the prior lien, the land shall bo sold, and the proceeds appropriated first to mortgagee’s demand, the balance, if any,to vendor's claim.</p>

<p>Testamentary.</p> <p>Case 46.</p> <p>Appeal from the Jessamine County Court.</p>

<p>debt,</p> <p>Appeal from the Oldham Circuit; Henry' Divino®, Judge.</p> <p>.Case47</p>

<p>EjHCSrENT.-</p> <p>Case 48.</p> <p>Appeal from the Franklin Circuit; Henry Pavidge, Judge.</p>

<p>OjI.ANCKIU’.</p> <p>Case 4!).</p> <p>Appeal from the Butler Circuit; Bxiodkax, Juclgc.</p>

<p>Parol evidence. Mistakes. Specific performance,</p> <p>Articles of agreemont beteween Card-well Breathitt and Mc-Curdy.</p> <p>Agreement ^contract,</p> <p>Mistake of th<s gnue of°n fact on which llc drew the “““j" erroTuithe writings,</p> <p>Judgment, ^ l*e' petual in^ junction,</p> <p>Mistakes in •written contract may be corrected by parol evidence, and the contract as corrected, decreed on the bill of the ■same party.</p> <p>Discussion of the evidence.</p>

<p>Assumpsit..</p> <p>Case 61.</p> <p>Error to the Clarke Circuit: George Shannon, Judge.</p>

<p> Devises. Executors. Parol contracts. Frauds and perjuries. Limitations. Injunctions. Practice. Parties. Mandates. </p> <p>Bill of Lee against the Marshalls &c.</p> <p>Sale of the land ofThos. Marshall, by-two of bis sons to Lee; parol ratification of Marshall, and directions to one of his sons for a conveyance.</p> <p>Both Marshall the elder and the son appointed to convey die without making the deed.</p> <p>Last will and testament of Thos. Marshall the elder.</p> <p>Executors made the fill aljudgos between the devisees; an appeal from their decision to operate as a forfeiture.</p> <p>Decree of tho circuit court, directing the executors of Marshall to convey the land to Lee.</p> <p>Bill of the Colstons &c. representing testator’s deceased children, to enjoin the conveyance;</p> <p>Allegations of the Coleston’s bill.</p> <p>Injunction.</p> <p>Answer of the executors and Leo to the bill of the Colstons.</p> <p>Lee’s case continued by-orders of the court.</p> <p>Decree of the circuit court enjoining the execution of Lee’s decree against Marshall’s executors.</p> <p>Appeals.</p> <p>If a final decree has been pronounced, keeping the cause on the docket, and entering continuances, give the court no power over it.</p> <p>Decree in Lee’s case against the executors, held to be not before this court, to be examined whether erroneous or not.</p> <p>Case of Lee vs. the executors examined, to determine on the merits of the bill to enjoin the execution of the decree for Leo.</p> <p>■Decree for Lee against the executors of Marshall, ¡held to be 3u'st.</p> <p>Grounds on which the circuit court decreed an injunction against the execution of the convey.ance ordered by Lee’s decree against the executors.</p> <p>No person ^art6 bin who would not bp contest tbe right to the ™lief Pray" e</p> <p>Devisees of ne_ cessary partiesto Lee’s K1 again(st 1 cxecu 01 ‘ Prohibitions in the testament against the devisees questioning the acts and decisions of the executors, and forfeiture of their interests, affixed as the penalty for such a controversy, did not divest the devisees of the power to convene the executors for fraudulent and collusive conduct.</p> <p>Kxe'culovs of Marshall knowing Lee*s right to a conveyance of the hind, on the parol obligation of their testator, were not bound to ^auds^nd perjuries.</p> <p>P?°.reo en* in faVOr .,f Loe, for tho con-re}'ancc>hoM</p> <p>Equity will, Wateo'"^ prayeiq compel executor limitation.</p> <p>If the bill tbecomplainant may not iiave leave to make new parties, on reoree render" ¿I for him."</p>

<p>Chancee?'.</p> <p>Caso S3.</p> <p>Appeal from'the Nicholas Circuit; John Trimble, Judge.</p>

<p> Lost obligations.. Jurisdiction. Sureties. Dismission. Bar by former decision.. </p> <p>Bill to recov-t er on a lost obligation against obligors.</p> <p>One obligor only summoned.</p> <p>Answer.</p> <p>Proof of the answer.</p> <p>Surety is not released by the long delay of the obligee to sue the principal* tvho in the time becomes insolvent and removes out of the state;</p> <p>Equity does not obtain jurisdiction againstone obligor in consequence of obligee sending the oblition to another state, and there recovering a judgment against another obligor upon it.</p> <p>Witlidrdwing frotes sued on.</p> <p>iiorv to süe bn obligations in Iho fcustody of Ihe law.</p> <p>Where in a bill on a lost note, the loss is denied, and the note appears to be in existence, the bill shall not be dismissed absolutely, but without prejudice.</p>

<p> Application of payments. </p> <p>Controversy of the parties' concerning the applicáa pajr'</p> <p>Rule given tfou'of 0" payments made genernot ai,_ plied by the parties,</p>

<p>Covenant</p> <p>Case 56.</p> <p>Error to the Lincoln Circuit; John L. Bridges, Judge;</p>

<p>Chancerst.</p> <p>Case 57..</p> <p>Error to the Mason Circuit: Whliam P. Roper, Judge.</p>

<p> Jurisdiction. Justices of the Peace, indebitatus assumpsit. </p> <p>Case before peace! his judgment,’ and the appeal.</p> <p>^’hlvnce.</p> <p>motion for'a nonsuit over= ruled, and oxceptions.</p> <p>Evidence of e fen ant.</p> <p>Verdict for t^fafrefused'^ and judg- 5 ment.</p> <p>Justicohavmg bad no juthe uiaTof*11 the appeal in the circuit he instructed to And for dofcntlant‘</p> <p>Held the case assumpsit.</p> <p>Mandate,</p>

<p> Parties. Husband and wife. Verdicts. Judgments, </p> <p>Objection to evidence overrulod, and the evidence admitted.</p> <p>Kvidence objected to, admitted, and hill of exceptions.</p> <p>Remarks on (be frivolous exceptions.</p> <p>Husband may sue alone, to recover good? claimed in right of the wife.</p> <p>Verdict, find-, ing the de- . tention of th^ , goods and the value of the sevetal articles, uif to be had, if not $200 in damages,” is sufficient, the latter claim being surplusage and to be disregarded.</p> <p>Form of a judgment in detinue for several articles.</p>

<p> Executors and administrators. Evidence. Deuastaviis. Sureties. </p> <p>Action upon the administration bond of Stout and his sureties.</p> <p>Settlement with the ?^eviJomse in an action against the administrasureties, hy a his fiduciary bond,</p> <p>Administra for their services, have precedence of the claims of creclitorsjudgment</p> <p>against an ailmimstrator by default, suggesting a devastavit, is not conclusive in a subsequent action on the fiduciary bond ^inistrator and his sureties.,</p> <p>Amount of tbe assets in such case _________ may be shewn by either the toror hi^" sureties. *</p>

<p>Debt.</p> <p>Case 61.</p> <p>Appeal from the Franklin Circuit; Henry Davidcíe, Judgdi</p>

<p>Covenant.</p> <p>Case 62.</p> <p>llrror to the Nelson Circuit; Paul I. Booker, Judge,</p>

<p>Petition Si Summons.</p> <p>Case 63.</p> <p>Error to the Garrard Circuit: JoiinL. B redoes, Judge.</p>

<p> Executions. Insolvent debtors. .Assignor and assignee. Presumptions. Evidence. </p> <p>Assignee vs. assignor.</p> <p>Evidence on the trial.</p> <p>Instructions foj- a nonsuit.</p> <p>It was not necessary for the assignee to first take a fien facias on the judgment against the obligor before his ca. sa. nor aftcr•wards; when it appears l'rom the schedule no property could be expected to be found.</p> <p>•Justice of tho peace wasnot required to return a certificate of the insolvent debtor’s having taken the oath, nor a copy of his discharge; that should, be delivered to the jailer.</p> <p>%'he Schedule being returned, the pre™ia/| b°nthe oatb was taken, and the 1SC aige</p> <p>excf-" cution after judgment, ^[Li-ge assigno^ but throe or four ulay!.fei«-y</p> <p>Assignee, in. g^nst^assign'- or, may give parol evivfncy in addition to the recortl Proof-</p>

<p>Appeal to the C. C.</p> <p>Case 65.</p> <p>Error to the Fayette Circuit; Jesse Bledsoe, Judge.</p>

<p>Trespass,</p> <p>Case 66.</p> <p>Appeal from the Spencer Circuit; Wir.r,. L. Kelly, Judge.</p>

<p>Chancery.</p> <p>Case 67.</p> <p>Error to the Bourbon circuit; Georoe Shannon, Judge.</p>

<p> Vendor and vendee. Consideration money. Liens. Subsequent purchasers and mortgagees with notice. Practice. Decrees. </p> <p>Purchase byRitchie from Galloway, of the lots in ' Winchester, and history of the succeeding transactions .</p> <p>Ritchie’s bill against Calloway and Eubank,</p> <p>Mortgage of the property by Ritchie to Poston.</p> <p>K.otico.</p> <p>Poston’s bill and decree forocloring his mortgage</p> <p>Eubank’s bill do subject the property to the payment of the purchase money</p> <p>Defence of Poston and the purohasers under his sale.</p> <p>Decree of the circuit court.</p> <p>Vendor has a lien on the land, for the consideration money.</p> <p>Conveyance of the land by deed, acknowledging the receipt of the consideration money, does not prevent the enforcement of the vendor’s lien against a subsequent purchaser, who has not completed his purchase by payment of tho price and acceptance of the title.</p> <p>Assignee has the benefit of assignor’s lien.</p> <p>-Endorsement of an execution that bank notes ■would be received in payment, which was afterwards returned no estate found, did not bind the plaintiff to continue that endorsement on a subsequent execution.</p> <p>Where the plaintiff ivho had endorsed his execution that bank notes would, be received, which is replevied, afterwards resorts to another remedy by suit, he is not bound by his endorsement to receive the bank notes.</p> <p>Where the assignee of -a note given for the sale of land, after failing to make the money by fieri facias, endorsed bank notes would bo received, brings his bill to subject the land, and overreaches a mortgagee of the. purchaser, he'is not bound by his endorsement but may demand the specie an the sale.</p> <p>Cases of the lien of the vendor upon the lands in the hands of subsequent purchasers, without notioe in Eno._ kmi, before3 and since the noUsonSstent. ” .</p> <p>Ante-rev.ok- and'subs^1508 quent cases in Virginia, c.on.cnr.Í!? the^ien1™-6 gainst a purchaser, with the'vende™</p> <p>Mortgagee’s situation cantha^nurch^»ers.</p> <p>Whore the mortgagee of the estate has notice, the mortgagor had not paid the purchase money, ho, like a pur* chaser, obtains the estate subject to vendor’s li.cn.</p> <p>Mortgagee hot having notice of tho purchase money remaining unpaid, shall have tho precedence, to the amount of his claim, at that time, but for his ad. ■vanees after notice, vendor of mortgagor, shall bo preferred, though be had acknowled,both in the deed and by his receipt the consideration money was fully paid.</p> <p>Case of Bayley vs. Green-leaf &c. 7 Wheaton 46, reconciled with the pres- ■ ent-</p> <p>—Mortgagee;. without notice of the vendor’s lien,, has the precedence, otherwise not, as in case of purchasers'.-</p> <p>Decisions of the Supreme court, are binding authority Oil questions of constitutional and general laws <jf the whole nation, but not on questions of municipal law.</p> <p>Decision of the several questions.</p> <p>Directions for the orders a id {jg°rr00°jcJ°j to enforce the vendor’s Hen and raif3 ^</p> <p>Decree,</p> <p>Dissent.</p> <p>Dissent ofCli. J. Bibb, from the majority of the court, upon the question of the lien of the ven dor, after a sale and conveyance of the estate, assorted against a mortgagee of the purchaser.</p> <p>Dissent of Ch. J. Bibb,</p> <p>Dissent of •Ch. J. Bibb.</p> <p>_ Dissent of Ch. J. Bibb,</p> <p>Dissent of Ch. J. Bit*,</p> <p>Dissent of Ch. 1. Bibb.</p> <p>Dissent of! Ch. J. Bibb.</p> <p>Dissent of Ch. J. Bibb.</p> <p>Dissent of Oh. J. Bibb.</p> <p>Dissent óf Ch. j. Bibb</p> <p>Dissent of Ch. Í. Bibb.</p> <p>D¡ssent 0f Ch. J- Bi!</p> <p>Dissent of Ch. J. Bibb*</p> <p>Dissent of Ch, J. Bibb,</p> <p>Dissent of Ch. J. Bibb.</p> <p>Dissent of Ch. J. Bibb,</p> <p>Dissent of Ch. J. Bibb.</p> <p>D;sse¿t of Ch. J. Bibb,</p>

<p> Vendor and vendee. Warranty. Endorsements. Bank paper. </p> <p>Counts in assumpsit.</p> <p>Evidence.</p> <p>instructions.</p> <p>Rescission of the contract offered by vendee of the oxen.</p> <p>Instructions of the court on plaintiff’s motion.</p> <p>Instructions of the court on the defen’ dant’s motion.</p> <p>^Evidence of defendant rejected.</p> <p>Verdict and judgment.</p> <p>If, in an action for the price of goods, the vendee prove ihe property in another, the plaintiff must shew an authority in from the owner to make the sale, or he cannot recover.</p> <p>It seems that the fact that a yoke of ox®ri will riot work, raises no presumption there was a fraud in the sale of them.</p> <p>Where the contract is in part for. the payment of bank notes, and A part an implied contract, which must be for money, the recovery cannot be for bank paper</p>

<p> Vendor'and vend'ée. Warranty. Damages. Implied contracts. </p> <p>Where there is no proof of fraud, the Vendor’s liability for the loss of the land, is the purchase money and interest.</p> <p>Implied contracts between vendor and vendee.</p>

<p>Evidence. Tender. Sett off. Warrants on the Treasury. 'Constitutional law. Treasurer.</p> <p>Notice of the auditor to the fourth day.</p> <p>Motion and judgment on the third.</p> <p>Motion for re-hearing’ granted, cause reheard, credit allowed, and judgment for balance.</p> <p>Motion having been made on the day'before the notice, the re-hearing approved</p> <p>Discretion of the court in granting rehearings.</p> <p>Defendant, clerk of the county court, offers, the at treasury, in payment of the taxes due from hjm, warrants in favor of Barry and Hag-gin, which were refused by the treasurer, but allowed by the court.</p> <p>Apt directing the warrants to be received by the treasurer.</p> <p>Defence of tender or set off may not be mafj,e to the suits of the state against the collectors of the revenue.</p> <p>State is entitled to recover the amount of her d>¡mand against the collecting officer, notwithstanding his tender at the treasury, and in court of warrants on the treasury, made receivable for the taxes.</p> <p>Practice in England and America in the settlement of treasury accounts-</p> <p>Nothing but a quietus from the auditor of public accounts, ¡is admissible in the defence of a motion of the state against a collector of the it,axes.</p> <p>ft seems that proof of the payment of the revenue into the treasury by any other evidence than. tbe quietus of the auditor, would be no defence to a motion of the state, for failing to pay the money.</p> <p>Inconvenience which would follow the permission of the collector to rely,in his defence of the motion of tho state.on other evidence beside tho audi- ' tor’s quietus.</p> <p>Acts of Congress regulating the controversies between that government and its debtors in revenue oases.</p> <p>Quietus of the auditor, and that only, is evidence of payments at the treasury.</p> <p>Legislature had power to prescribe ?vhat.sjloui<1 sujts a„ colTecVovs on all contracts to ment> ° '</p> <p>Remedies atreasurerfor refusing to receive war-payment and ceipt.11S 16</p> <p>Mandate,</p> <p>Dissent;,</p> <p>Dissent of. . Ch. J. Bibb, from the opinion of the court, that in a motion of the state against a collector of taxes, no proof of payment or tender at the the treasury, but the quietus of the auditor, is an ayailable defence.</p> <p>Dissent of Ch. J. Bibb.</p> <p>Dissent of - Ch. J. Bibb.</p> <p>Dissent of Ch. J. Bibb.</p> <p>Ch^J^Bibb.</p> <p>jj;ssent 0f ch. J. Bibh.</p> <p>i’>issent of Cli. J. Bibb.</p> <p>Dissent of Ch-</p>

<p>SOVENAN'I;.</p> <p>©ase 72.</p> <p>Error t® the Montgomery Circuit; Silas W. Robbins, Judgea</p>

<p> Parties. Fraud against creditors. Husband and wife. </p> <p>Allegations of Waring’i Rill, suing as the assignee of judgments against Elliott to set asido the transfer made by Elliott, of his ivife’s distributive share in the estate of lior father, then lately deceased, or to subject the price the purchaser undertook to pay, tor the maintenance of Elliott’s wife and children.</p> <p>Elliott’s answer.</p> <p>Answer of Taylor, the trustee for the. wife and children.</p> <p>Decree of the circuit court.</p> <p>Objections to the manner of the decree.</p> <p>In a bill by assignee of a judgment, the assignor in ■whose name the judgment w.as recovered must bo parly.</p> <p>Omitted partios.</p> <p>Where a judgment creditor brings a bill to set aside the husband’s assignment of the wife’s distributive share in the estate of her father, who <liocl during the coverture, executed to raise a fund in the hands of trustees, for the wife and childer-n, and to subject such share, or the price, to the satisfaction of the debt: the wife and children must be parties.</p> <p>Jíquity tvill not aid the insolvent or improvident husband to obtain the possession of •(.ho wife’s estate, without</p> <p>mating an adequateprovision for the dren.1" ° 1"</p> <p>In such case those claim-h^band^wili bo subjected to the same terms'</p> <p>Creditors of the husband shall not subject the property which falls to the wife by descent or devise, during the coverture in opposition to the claims of the wife and children in danger of distress:— But the chancellor will make for them an ade?”nate Pr0V1”</p> <p>Wife and raay bare in. junction against the proceedings of the husband’s creditors to subject such property of the wife to payment of his debts, and demand a suitable pro-, vision to bo settled on them.</p> <p>Equity of the wife to have a maintenance out of the estate falling upon her during the coverture, shall bo preferred to the husband’s creditors, and all others churning under him.</p> <p>"lllvo circumstances to be considered by the chancellor, in allowing and f,x;ng the amount of the ^wSe^nd1 chúmen out of the estate tho°n co^ntur'ec, '</p> <p>Assignment b.y the inbantTof the distributivo share of his tate, dying after the marmage, to the torfiiTeo'nsideration of a settlement aud'chiWrenisnotneoes-’ sarily frauda</p> <p>Mandate.</p>

<p> Void, and voidable, acts of infants. Confirmation. </p> <p>Case formerly here — trial on the return to tUa circuit oourtandver dictandjudginent for the tenant.</p> <p>Demandant’s manner of title.</p> <p>Statement of - the demand-ant’s evidence.</p> <p>Evidence of the tenant.</p> <p>Deeds of conveyance offered as refuting evidence by demandant.</p> <p>Deed of indenture between the children of Francis Mc-Dermed, the father of Mil-■]y Phillips executed by her, whilst an -infant-.</p> <p>Recital in the deed.</p> <p>Covenants in the deed between the children of Francis Mq-Dermed.</p> <p>Hood of 1793, from Phillips and wile to Hugh MeDermed,</p> <p>bove deeds embraced the ground in «controversy.</p> <p>iy°phíníps1 and others to Hickey of -</p> <p>Deeds between others read by tenant.</p> <p>Parol proof of the acquiescence of the parties in the division of the lands and lots, and admission of the possession accordingly in severalty.</p> <p>Deed of bargain and sale of an infant, is not void but voidable only.</p> <p>What will a™°Xmation 0f a deed of bargain and age ?</p> <p>Effects of a deed read in evidence cannot be limited by the declaration of the party reading, made when he offers it, but when read, all the .paperis evidence.</p> <p>.Examination of the deed of 1792, and found to be ' apparently for the benefit of Milly the infant.</p> <p>Slight acknowledgements after full age, sufficient to determine the election of the infant to affirm or avoid his voidable deed. An act in pa-is may affirm a voidable deed.</p> <p>Example of deeds voidable. "</p> <p>Loase.</p> <p>Exchange.</p> <p>indenture.</p> <p>Lease reserving rent;</p> <p>Feoffment.</p> <p>Lease.</p> <p>Leed of conveyance.</p> <p>Mortgage,</p> <p>Deed of Mil-, ly PMMip?, feEt,\elcH(> be not void but voidable,</p> <p>Recital of the deed of conmade1 by the grantor, whilst within aftw3 fuu age, and that the de“l^^the agreement witnessed by-confirmation,</p> <p>In sucli case the estate passes by the ontfiaaldeed, and not by the confifma.7 tyry.</p> <p>Held on the evidence the demandants had no title, and could not be injured by instructions/</p>

<p>Warranty, Privity of contract and estate. Assignment. Parties.</p> <p>Case stated.</p> <p>Declaration on the covenant of warranty.</p> <p>Decision against the declaration.</p> <p>warranty of the remote a renor. Alienee of . land evicted by title paramount, may maintain his action on the</p> <p>This is on the privity of oscorftract and therefore’ the action is, in the genera], maintainable mltnvict ed. J</p> <p>Casein which veyancermay maintain the anantl0fthV" warranty of his remote alienor.</p> <p>In such case the declaration must shew how the plaintiff acquired the right of action which accrued to his evicted alienee.</p> <p>Mandate for the plaintiff whose judgment is reversed here, to have leave, if he apply, to amend his declaration.</p>

<p> Hiring of slaves. Lessor and lessee. </p> <p>Judgment at law, on the covenant, for the hire of slaves.</p> <p>Injunction and decree of the circuit court.</p> <p>One to whom a slave is hired for a year, is entitled to no abatement of the price, because of the death of the slave, after the co"mmencement of the term.</p> <p>.Lessee is bound for the rent of houses &c. notwithstanding their destruction by accident.</p> <p>Dictum ol' Chancellor Taylor, 'of Virginia, in favor of the claim for deduction. in. the hire of a slave who dies within the term.</p> <p>No abatement shall be made in the hire of a slave because of the sickness of the slave.</p>

<p>Jhiswers in chancery. Garnishee.</p> <p>Allegations. th(Miatnre of a foreign attachment.</p> <p>Answer of ^12 su 1 '</p> <p>Where the garnishee had th^complainants, before the suit, he otenc üfhis hfmdJto'pay their demands, and paid a part, and after-wards puts in an equivocal and evasive answer, he shall pay thq whole demand.</p> <p>Mandate:.</p>

<p> indorsements of slander. Evidence. Compromise. Concessions. Character and credibility. Witnesses. </p> <p>Statement.</p> <p>Testimony offered and 'rejected.</p> <p>Endorser of slander is responsible.</p> <p>Declarations band6 made pending an action for the wife^thathe believed defendanthad «d^iheflan1" <ler but had only repeat-°0 t^°'s ad missibíeta" mitigation of damages.</p> <p>Statements of facts made in for comprom” ise, are evidonee; offers termTctfseitíement are not-</p> <p>It may be proved against the credit of a witness, that sbe has the reputation of an unchaste woman, but not that she does in fact o7concubfn-° age,</p>

<p> Entries. Surveys. Southwardly. Warrcmty. </p> <p>Jonathan Clarke’s entry.</p> <p>Call for a survey proved to be notorious at the date ol the entry, is yalid.</p> <p>Post oaks, a species of white oaks.</p> <p>Southwardly- and Westwardly, are flexible expressions, and not to be tq.ken due South and West, and so are not valid calls in an entry--</p> <p>Except—</p> <p>Where the base line is given, which gives to the flexible lines the right-angular direction.</p> <p>Where the entry may be surveyed with equal propriety, ihdi/t ferent modes, and include no land common to both surveys, the-entry is invalid.</p>

<p>.Enfríes. Surveys. Misnomers. Notoriety.' Evidence. Construction of depositions.</p> <p>Jacob Seay’s ehtry.</p> <p>Evideucc offered to prove ii survey, call -ed for in tbe entry, had been m fact made on the ground by another survey- or, before the date of the certificate recorded.</p> <p>Evidence ^^the”' naLcTof Bullockwascalled Overton’s e en"</p> <p>Private unrecorded survey, notorious at the time, both as to its name and position, may answer the calls of an entry.</p> <p>Proof to sustain the call for a survey, by a name different from the record, must be entirely full.</p> <p>Evidence offered to prove the notoriety of the survey called for, held insufficient.</p> <p>Words notorious and noloed to bemused by the witness in an impíopsotheUdepositions con•strued.</p>

<p> Conditions precedent. Excuse of performance. Tender. Pleading. Practice. Bank notes. Judgments. Statutes. </p> <p>Declaration,</p> <p>Piea denying the perfor* manee of the condition precedent.</p> <p>Evidence offered to prove the performance of the condition.</p> <p>Motion for nonsuit overruled and' verdict and judgment (or plaintiff.</p> <p>Where plaintiff avers pert formance of the condition precedent, ho must prove that; to shew a tender, or an excuse for non-performance, will not avail. ■</p> <p>When the obligor covenants to deliver tobacco at aware-house, to the obligee, on a given day, relies on a tender in the absence of the obligee, be must shew the tender on the latest convenient hour of the day.</p> <p>Covenant to deliver tobac co at a ware houses, does not require the covenantor to put it in the house.</p> <p>Is it not too late after the jury have come into court with their verdict for plaintiff to endorse his agreement to receive bank paper.</p> <p>Query, will a note at the foot of a judgment that plaintiff agrees to receive bank paper, make-the judgment in substance for the paper, and within the act.</p> <p>Act authorizing the re- ' covery of notes on the bank of the commonwealth in kind, does not apply to contracts made before the enactment.</p>

<p>Petition & SuMMOKS.</p> <p>Case 82.</p> <p>Error to the Fleming Circuit; William P. Roper, Judge'.</p>

<p> Consideration. False pleas. Demurrer. </p> <p>Covenant su* ed upon, recited.</p> <p>Demurrer &c, ¿}efefa_eni ants,</p> <p>Plea held in-</p> <p>Fien, to the „yiga^ tion, shewing it was given gtVf a'olaim 0f whoso merits the deea, held insufficient,</p> <p>When the plea appears judicially to the court, from the pleadings, and deed of the defendant, to be false, it may be adjudged ill on demurrer.</p> <p>Mandate.</p>

<p> Pleading. Devastavit. Interest. </p> <p>It appearing by the matter of the count, the plaintiff was not entitled to recover the sum demanded in the commencement of the declaration and count, judgment by default, for such greater sum, held erroneous.</p> <p>In an action againstan executor suggesting the devastavit, the recovery shall be for the sum of the principal of the original debt, intevest and costs, but on that sum there shall not be running interest.</p> <p>Damages might be allowed in such case for the amount of the interest accrued on the judgment from its rendition.</p>

<p>Petition. •</p> <p>Case 85.</p> <p>Error to the Fayette Circuit; Jesse Bledsoe, Judge.</p>

<p>Covenants, mutual and independent. Pleading. Condition precedent.</p> <p>Declaration.</p> <p>Writing declared upon.</p> <p>Demurrer andjudgment for defendant.</p> <p>In case of mutual and in Splendent covenants, whore the cov .iarl of each, and not the expected performance is the consideration, each may recover wilh0ut shewing performance on his Pari'' .</p>

<p>chance®y.</p> <p>Case 87.</p> <p>Érror lo the General Court; Henby David ge, Judge.</p>

<p> Pleading. Profcrt of letters of administration. Jeofails.-Dcmuner. Practice. </p> <p>Declaration.</p> <p>Profert of the letters of administration*</p> <p>emuner*</p> <p>Judgment against tho demurrer ; leave to plead refused, but on condition of -the withdrawal of the demurrer; and judgment for plaintiff.</p> <p>Statutes of jeofail>17i,ii■■</p> <p>statute of. 181’•</p> <p>British acts of jeofail adopted in Virginia in 1755, and in Kentucky by the first constitution.</p> <p>Omission or insufficiency of profert of the plaintiff’s letters of administration, is but matter of form, and cured on demurrer by the acts of jeofails.</p> <p>Jurisdiction of ainirastration cases in England.</p> <p>Objection which required the special demurrer, are now all cured by the act of 1811. .</p> <p>It never was necessaiy bore for the plaintiff .to state by what court his letters of administration were granted.</p> <p>If defendant files and relies on his demurrer only to the plaintiff’s declaration, when that is overruled, his application to lile a plea is addressed to the discretion of the court, and an ill plea may be refused or he may be required to withdraw his demurrer.</p>

<p>Chancery.</p> <p>Case 89.</p> <p>Appeal from the Montgomery Circuit; S. W. Robbins, Judge,</p>

<p> Jlctionable words of slander, </p> <p>Instsuctions for nonsuit,</p> <p>‘^’STou have been croped for felony’5 are actionable words.</p> <p>It iá no.f necessary the species of' felony be sated, the' genera] charge is actionable.</p> <p>Examples of slanderous actionable. Words,</p>

<p>Chancery]</p> <p>Case 91</p> <p>tError to the Green Circuit; Benjamin Monroe, 3udge.</p>

<p>Chancery.</p> <p>Case 9£.</p> <p>Error to the Franklin Circuit; Henry Davidge, Judge.</p>

<p>Executors. Replevin bonds. Escrow,</p> <p>Motion by tbe obligors to quash a replevin bond because all the defendants in the execution bud not unir ted in it.</p> <p>Plan!¡iff may quasi) n replevin bond because all the defendants in the execution bud not united iu it-</p> <p>But—</p> <p>Tho obligors in a replevin bond, cannot complain that a part of tho defendants in tiie replevin bond did not unite in its execution.</p> <p>It cannot be presumed 'from the fact of all the defondants in tho execution being named in the penal part of the replevin bond, signed by part only, that they delivered it as an escrow. Such an allegation must be proved— it cannot be presumed against tho sherilf’s return.</p>

<p> Practice. Error. Parol contracts for land. Mandates, Rents and improvements. Commissioners. </p> <p>Allegationsof East’s bill for iujuntion against tho judgment in ejectment, claiming the land or compensation for improvements.</p> <p>Brown’s answer.</p> <p>Bourn’s answer.</p> <p>Decree of the circuit court.</p> <p>; £f®“f£J£ents</p> <p>Where this court reverses for the appellant on any error, the whole case is then revised from the first error, and thus a decree may bs dia°r3lantthan that reversed.</p> <p>veyancebond docs not shew the considney^remains unpaid, and the covenant is for a con" conditionally,if the oblistdl due°be mustproveit.</p> <p>An arbitration of a dispute as to the obligee’s right to demand a conveyance relied on and held effectual.</p> <p>Denial of an alleged contract by parol, for land, has the same effect as the plea of the statute of frauds and perjurios.</p> <p>Parol contracts for land may constitute a defence to a suit, and a purchaser in possession may have a lion on tho land for tho consideration money advanced.</p> <p>Directions to the chancel-g®^®1®™^ measurement and diagram t0 ascertain a. ™0Vuncer-C tain in the record.</p> <p>Order that the o°mfowbe're-6" quired to m;.lke a cerdefendanTon condition a certain fact eaqa™d’tan exist, as upprehended.</p> <p>Mandate, for to order a commissioner to ascerti"n the ney and ™ " make an account,</p> <p>Rents and p.¡noipieand rules for assessing them,</p>

<p>Chancery.</p> <p>Case 95.</p> <p>Error to the Madison Circuit; George Shannon, Judge.</p>

<p>Co VENAN</p> <p>Case »5</p> <p>Error to the Washington Circuit: William L. Kelly, Judge.</p>

<p>Chancery.</p> <p>Case 97.</p> <p>'Error to the Christian Circuit: Benjamin Shackleford, Judge.</p>

<p>cmKCERY</p> <p>Case 98,</p> <p>Error to the Hardin Circuit; Paul I. Booker, Judge.</p>

<p>Dates. Conveyances. Vendor and vendee. Notice. Fraud. Trustees. Estoppel. Compensation. Rescission of contracts. Corporations.</p> <p>'Sale and con-veyance of the McMui tries to Lewis Sanders.</p> <p>Sanders’ conveyances of a ISid intrust to secure the’ payment of “ts to Oompany.nCe</p> <p>Sanders’ conveyance to secure his debt to the Bank of Ken tucky.</p> <p>Scott, Morrison’s devisee’s claim, derived under the conveyance, for, the benefit of the Insurance Company.,</p> <p>Caldwell’s claim derived under the deed of trust, to secure his debt to the Bank of Kentucky.</p> <p>Alleo-ationsof Caldwell’s the Banket Kentucky0 and Mqrri" son-</p> <p>Answer of the Bank of Ky.</p> <p>Answer oí Morrison.</p> <p>Caldwell’s ainendcd bill.</p> <p>Agreement between Morrison and the other sureties of Prentiss, on the one part, and the Bank of Ky. on the other, for the re-sale of the property conveyed in pledge by Prentiss.</p> <p>Advertiscment of the second sale and approbation thereof, by Morrison, set up against the claim he then held.</p> <p>Answer of Morrison’s executor and devisee, to Caldwell’s amended bill.</p> <p>jOecreo of ¡.ho circuit court, dismissing the bill as to the Bank of Ky. but ordering Morrison’s representatives to reloase title and pay rents.</p> <p>Date at the conclusion of the deed of conveyance, exactly one year subsequent to that in the body of the instrument, held to be the true date of the execution of the deed.</p> <p>Deed conveying the title to ono who had before, whilst he had no title,mado two deeds successively, to different persons, enures to the first grantee.</p> <p>f)eed pf one holding the b0fore executod a deed, (ft °f s®0gne" person’sgrantee, apd his Sonfed, the land is not subject ^S^of^be debts of the mesne gran-,</p> <p>Trustee can-, an outstanding title to the property;but t0 ]„m his own right, rvill enure to t(J“ he Si hold.as trus-.-</p> <p>Trustee who SiTanty'a1'* Gainst hfe grantor,'will bo estopped to assert claim to the property derived by purchaser, under an execution against his grantor.</p> <p>Principle— that he who stands by and sees his property sold without giving notice of his claim shall lose it, does not apply where such owner is ignorant of his claim to the thing.</p> <p>Held that Morrison was not estopped by his arrangement with the bank to assert his claim to the land before the sale; the parties having been all ignorant of the interference-.</p> <p>Purchaser of vendor to the whole tract, a'n sary ciaim to part, not askhavecompensaüon for the Part losb but {ds ulation.</p> <p>Purchaser of the bank without the corporate a proper deed, because he paredfa deed, ^a(1 aeGverane^ fused to put hei sea1'</p>

<p>Amendments of declaration. Demises. Grants. Statutes. Tenants in common.</p> <p>Statement of the case.</p> <p>Now trial granted on the ground of surprise on the first trial, approved.</p> <p>Tillo of the lessors of the plaintiff.</p> <p>Declaration in ejectment amended.</p> <p>Defendant’s evidence against plaintiffs title.</p> <p>Young,'by liis deed to Marshall, passed all his estate in the land, and his subsequent deed to the heirs of Young passed nothing.</p> <p>Declaration in ejectment cannot be amended by introducing new lessors, nor by adding new demises dated subsequent to t]le com_ mcncement of</p> <p>G-rantofland : to twopersonsas tenants con-“f™r’ ^s“e<l death of one of them, Pas.setl-th<! to the suwlvor. In such °ase thehad remninerl in the ^tIle thereby ’it was vested in. tlie heirs of the deceased grantee.</p> <p>There was a grant of the whole estate to Harvie, issued subsequent to the grant to Young and the dead man Tibbs, bat prior to the act of 1792: Harvie’s grant is elder in law than the grant of the moiety to Tibbs’ heirs Ivy the act of 1792, butjunior to the grant of the other moioty to Young.</p> <p>Grants, to Young and Tibbs, dated after Tibbs’ death, and to Harvie of the same land by patent subsequently, but prior to the act of 179P., make Young and Harvic tenants in common by separate grants from the state.</p>

<p>~Fraucls and perjw'ies. Partition of Lands. Lapse of time. Ji~dicial sales.</p> <p>Will of Jo~ sepli Byers.</p> <p>l3yers' title t~ the pro~~rt~ at his death.</p> <p>ijalos of the property after Byers’ death.</p> <p>Purchase from Samuel Byers, and Bod'oy’s claim under it.</p> <p>the county court,</p> <p>Itocree of the circ['“li,'30"1.'t directin'* a sale and conveyance &c,</p> <p>.Reversal of the decrecía ca¿.ey’s</p> <p>Proceeding* pa8e°-nicrilip rúiorsa^here’ Parker’s heirs, their hill for a refiivision.</p> <p>Answer of the Trotters.</p> <p>Answer of the heirs of Anderson.</p> <p>Bodlcy’s answer.</p> <p>Becree of thfe circuit court, dismissingthg bill of Parker’s heirs, and by Bodley’s consent, his bill again dismissed.</p> <p>The court cannot reinstate a cause which had been dismissed at a previous term. Such an order of reinstatement gives the court no power over ibe case.</p> <p>.Partition made by proceedings in ■ the county court, though informal, having been just, and long acquiesced in, njul improvements made in faith thorc■of — affirmed.</p> <p>Reversal of ;i decree ordering the sale of land does not effect the title acquired by the purchaser.at the sale.</p> <p>Rule is the samo whether the purchaser be a party to the judgment or decree or a stranger, and the reversal affects in neither case.</p> <p>Sales of the lands of infants under an erroneous decree or judgment are not affected by the reversal of the der pisions.</p> <p>No party to ^latent eqUityt0tho land ordered to be sold, to th^rev'orsal*1 of the decree,</p> <p>Petition for a rc-hearing.</p> <p>Petition for a re-hearing.</p> <p>Petition for a re-hoaring.</p> <p>Petition for a re-hearing.</p> <p>Petition for a «/-hearing,</p> <p>Petition for a re-boaring„</p> <p>Petition for a re-hearing.</p> <p>Petition fora 9'</p> <p>Statement of o^which'the re-hearing ivas granted,</p> <p>heirs ombraoeel their e onty"andnot the proceeds °f thejuditherefore™"’ their claim to the money is edbP1 fhe^de crco;</p>

<p>Chancery*</p> <p>Case 192.-</p> <p>Appeal from the Fayette Circuit; Jesse Bledsoe, Judge".</p>

<p>Covenant.</p> <p>Caso 103.</p> <p>Appeal from the Garrarcl Circuit: John L. Bridges, Judge,</p>

<p>Chancerv.</p> <p>Case 104.</p> <p>Appeal from the Hart Circuit; Benjamin Monroe, Judge.</p>

<p>Kjecment.</p> <p>Case 105.</p> <p>Appeal fromtbo Greenup Circuit; William P. Roper, Judge.</p>

<p> Jurisdiction. </p> <p>Circuit Judge in chancery sotting has no jurisdiction to enjoin a judgment for less than five pounds.</p>

<p> Pleading. Payment. Accord and satisfaction. </p> <p>Obligation sued on.</p> <p>Assignment»</p> <p>Declaration.</p> <p>Demurrer fee.</p> <p>Special plea No. 1.</p> <p>Second plea.</p> <p>Plea of nil debet.</p> <p>Demurrer to the pleas.</p> <p>Judgment of the circuit court for the plaintiff on all the demurrers.</p> <p>Declaration held sufficient.</p> <p>At common • law, payment after the day was no plea.</p> <p>Payment after the clay, is made a good plea by the statute— but the plea must aver payment in lull of all due.</p> <p>Whore the plea professing tp answer a part of the demand, is ill for any part, the plaintiff may demur to the plea, as to a plea in defence of the whole action,</p> <p>Plea of accord and satisfaction on a bond, must be pleaded as a satisfaction, of the money, not of the bond.</p>

<p> Ti’ustees. Assignments. Setoff. Notice. Parlies. </p> <p>Pomissory notes. Judgments at law. Bills in Equity by Rodes. Decree of perpetual injunction.</p> <p>Where a ^°“lss0-ry noiliy the6”’ real debtor, buU° bjm» over toCalS6C third person, °r where it is ^ (e0p^ya" the creditor, and it. ap^contrir^ !mco to avoid the set off of might ac-’ quire against j{0e1.ret{1ecre<1~ chancellor will wholly disregard the {o^kingtothe substance only of the allow all the, discounts.</p> <p>If in such case the apparent legal Creditor in the notes acquire the equityinthem, and would resist the debt- or’s set oiF, he must prove notice of his acquisition as of an assignment.</p> <p>In d suit by the assignee of a judgment for set off, the as*signor must be party.</p> <p>Mandate*</p>

<p>Parties. Scire facias. Executors, fyc.</p> <p>D urrer t0 the^Sre 'fad-as, and judgment f1' p aintl '</p> <p>CaseofJohn?°n’s heiis TS* 8^°260-1: overruled,</p> <p>in a scire fa-a^udgmeut* against the representa-cXe<fdefo£ dant, the suvliving detTmade™11^ party, 6 d</p> <p>Judgment in such case ought to be several.</p>

<p>Detinue.</p> <p>Case 110.</p> <p>Appeal from the Wayne Circuit; John L. Bilges, Judge.</p>

<p> Fraud. Rescission of contracts. Femes covert. Conveyances. </p> <p>Allegations of ersall and' wife,</p> <p>Prayer of the bill.</p> <p>Sumerasll’s. answer.</p> <p>Answer of Sumersall’s wife.</p> <p>Decree of the feircuit court.</p> <p>Chahcolloi looks with suspicion into contracts amde with persons in situations which give to the other contracting parties an undue influence or control over them.</p> <p>Case of an aged female., without hus-' band or children, residing with a niece" and her husband.</p> <p>An aged, unmarried female conveyed to her niece her real estate,in consideration of the obligation of the husband of the niece to support her in his house during life, and after-wards the parties quarrel, and agreeing to cancel the contract, the bond and deed are surrendered and cancelled, and she was turned out of doors; but it is afterwards found, the deed had been registered, and the wife refused to reconvey— —She shall surrender or the husband pay damages for broach of his contract.</p> <p>Whore the acquisition of the title by the wife is fair, tho husband’s rescission of the contract whereby it was acquired, cannot effect ¡her; but she shall not hold an estate acquired by their joint fraud.</p> <p>Demands rer jected because they belong to the court of lavr.</p> <p>Hire for the slaves of an inmate of the house refused because the parties had not understood there iva's to bo a compensation.</p>

<p> Lessees and bailees of tenants for life. ■ Statute. Evidence. </p> <p>Case stated,</p> <p>Whore the tenant for life, of lands or slaves, dies after the first of March, the lessee of the land or hirer of the slaves shall hold them til! the last of December.</p> <p>In such case, parol evidence of the declarations of the tenant for life, of his having hired the slave or let the land, is competent evidence againstthe remainderman, to resist his claim to the possession till 1st December.</p>

<p>Chakcery.</p> <p>Appeal from the Woodford Circuit; Will. L. Kelly, Judge.</p> <p>Case 113.</p>

<p>slander.</p> <p>Error to the Madison Circuit; George Shannon, Judge.</p> <p>Case 114.</p>

<p> Evidence.' Jlnsivers. Jlgents. Interest. Executors. Bis? tribúteos. </p> <p>Case stated.</p> <p>Distributees erfiomwmaexecutor de ” son tort: the Jcre1(^°r® rfghtthus to charge the intermedler.</p> <p>Settlement county court prima facie evidence for the administrator.</p> <p>'Interest.</p> <p>Allegations of the bill and defendant’s •answer.</p> <p>The evidence s a e '</p> <p>Where tire hill alleges would be U° known to de^den^^f prooTmust 6 be by two witnesses, or °obomting0r" circumstancos.—</p> <p>But__</p> <p>Where the allegation is as tha?de-V<!’ fenclant har~ ing received money had not accounted and paid it over, the averment of the defendant that he had paid the,money over must he proved as affirmative matter in aTpidance,</p> <p>tíon allowed an agenTout i»f the money he had coliected,</p> <p>Interest not recoverable of a depositorS-</p> <p>Where the administrator had not used the money he is not liable for interest to distributees till the bontl pf indemnity is tendered.</p> <p>Decree for the portion of each distributee to be paid them respectively.</p> <p>Bonds to be given administrator before the decree shall bo executed.</p> <p>Mandate.</p>

<p> Specific performance. Payment. Lapse of Time. Pleading. </p> <p>Bill by Clark anil Shackle-ford.</p> <p>Allegations of tlus bill.</p> <p>Prayer for relief.</p> <p>Publication against Tibbs’ heirs and answer by Masbie’s.</p> <p>.Decree of the circuit court.</p> <p>Vendor of land cannot “™Peelle<1 ^here it'ciocs not appear he has been Orationon'f money,</p> <p>Where the ?elie°d on™6 as evidence of payment, be'avored as mother oases,</p> <p>Same rule at law ar.d in equity.</p>

<p>Debt.</p> <p>Case 117.</p> <p>Error to the Warren Circuit; Henry P. Brodnax, Judge;</p>

<p> Pleading. Duplicity. Novel assignments. Possession. Ejectments. Trespass. Mesneprojits, Verdict and judgment. Estoppel. Restitution. Right of entry. Limitations. </p> <p>Actions of eicctment by Crockett, one against Lash-brook and the other against Fyffe his tenant.</p> <p>Order admitting Lash-brook alone defendant, in the case against Fyffe.</p> <p>Nonsuit in the case originally against Lash-brook; because ho was not in possession .</p> <p>Verdict and judgment for plaintiff in the case agamst Fyffe.</p> <p>Lashbrook alleges Fyffe. was in possession of but seven acres of the interference of the claims, and so, only that was recovered.</p> <p>Writ of possession executed by IDimmit in the name of Crockett, for the whole interference, about sixty aereó.</p> <p>Action of trespass by Lashbrook aniit1SÍ üim"</p> <p>Motion for restitution against Crockett-</p> <p>Trial. Judgments for Lashbrook, and exceptions.</p> <p>Picas of defendant; replications ; double rejoinders to the novel assignments, and issues.</p> <p>Special pica of justification, alleging the defendants right of entry and judgment in ejectment, and writ of habere possessionem.</p> <p>Replication by novel assignment.</p> <p>.Rejoinder of liberum tenumcnlum.</p> <p>Surrejoinder of twenty years adverse possession by plaintiff before defendant’s entry and trespass.</p> <p>Demurrer to the surrejoinder, and judgment for the plaintiff.</p> <p>Plaintiff may reply to a plea of liberum tenamentum, either by traversing the title generally, or by shewing a conveyance, or alleging an adversary possession which tolled the defendants entry.</p> <p>'Held by the circuit court the pleadings had not involved the title.</p> <p>It seems that where there was an agreement by the possessor under the junior grant, that if the elder patentee prevailed in an ejectment against a certain other person, ho would thenceforth hold under him, and the plaintiif did prevail in that action before the limitation had run, the . plea of continued adversary possession will not avail.</p> <p>Duplicity in pleading is not now, since the destruction of the special demurrers, au available objection.</p> <p>I’lea of liberum tenainentum, and of a judgment in ejectment and writ of possession thereon.</p> <p>Replication of twenty years adversary possessioa of the land described as to the libitum lena•mentum, part of defendants plea, and as to the judgment in ejectment denying the land was in ■possession of the tenant at the institution of tho ejec tment.</p> <p>Surrejoinder.</p> <p>Held there were issues upon one plea on both tho allegations, of liberum tenamentum, and the recovery in ejectment.</p> <p>Evidence of tho'jossef 0Í sion on which the declara-' seive</p> <p>Recovery in p0ssejs¡0ri of the tenant on v-hom the declaration and notice are served, in whose stead the landlord is admitted to defend.</p> <p>History of the action of ejectment.</p> <p>Landlord admitted to defend with, or in the stead of the tenant, can make nodefence which the tenant could not insist on in hi-s defence.</p> <p>Admission of , the landlord to defend in, the stead of the tenant, does not extend the controversy to land in possession of the landlord, and not the tenant at the time of the service of the declaration and notice to the tenant.</p> <p>Verdict and judgment in ejectment not conclusive in another ejectment.</p> <p>In an action lor the mesne profits, the verdict and judgment in ejectment arc conclusive.</p> <p>Otherwise in an action by the defendant in ejectment against the plaintiff for entering on the lands by the writ of habere facias.</p> <p>Modo of pro-entries whore the tenant «ot, ¡-lut the landlord ¿icfemlod for him.</p> <p>Motion for restltutlon-</p> <p>Rmnut ani as one person in the-whole oonlrovPrsy></p> <p>Motions for restitution not favored in this court.</p> <p>Decision on a motion for restitution of lands, will not bar a for-ma] action at law on the same matter.</p> <p>Decision on ihe evidence, for Lash-brook, and against Crockett; as to the possession of Fyfle the tenant.</p> <p>Verdict in trespass is not conclusive ia a motion for restitutioh of the premises, taken possession of by-writ of habere facias.</p> <p>Whenever a person has the right of entry, he may justify, in trespass quare clausum fregil by the plea of liberum, lenamentum.</p> <p>It seems the court will not determine a doubtful question as to the extent of boundary in a motion for restitution,butleave the party to his action.</p> <p>Possession,its extent by parties in the occupancy of parts of the land in controversy.</p> <p>Landlord and his tenant being sued m separate actions for adjacent lands, in possession of the two, or of the tenant only; the landlord by denying his possession obtained a dismissal of the action against him, and after-wards upon a general verdict and judgment rendered in the other case, possession was taken of both parcels as recovered in this action— held thelandlord snail not have restitution of the part lie was sued for, by shelving he and not his tenant was in possession. Party may be estopped to deny what lie ■declared in had faith, whereby he obtained an advantage over his adversary.</p> <p>Benial of a. defendant in ejectment that he >vas in possession, shall not conclude him in an action of trespass, because the judgment in ejectment is not conclusive.</p> <p>Declarations of a party in ejectment, made in bad faith, to the prejudice of his adversary, given their effect on a motion for restitution.</p> <p>Judgment & Mandate.</p>

<p>Trespass.</p> <p>Case 119.</p> <p>Error to tho Fayette Circuit: Jesse Bledsoe, Judge.</p>

<p> Allegation and proof. Variance. </p> <p>Case stated.</p> <p>instruction as in case of a nonsuit, and judgment accordingly.</p> <p>On an allegation that the defendant charged the plaintiff with swearing a lie in a suit of Banton and wife vs. Campbell’s heirs, it may he proved the charge was made in reference to the case of a cross bill by one of the defendants in such case, against the complainant and co-defendants, the variance is not fatal,</p>

<p>Covenant.</p> <p>Case 122.</p> <p>’Appeal from the Bourbon Circuit; George Shannon, Judge.</p>

<p> Sheriffs. Delivery bonds. Executions. </p> <p>It is the duty to write'the delivery bond when the sureties are not of the defendant.</p>

<p> Executors, distributees. Parties. Husband and wife. Auditors. Practice-. Error. Interest. </p> <p>In b¡11 b distributedagainst an ex-^butioiT all* the distributees must be made parties? complainant or defendant,</p> <p>proceeding below after the return of the cause by the mandate of this court.</p> <p>Statement of the parties and distributees.</p> <p>Éxecutor an,d not the children of a son dying aftei his father are entitled to recover distribution of liis goods and chattels, and must be the party to the bill for distribution.</p> <p>Distributee •who had sold his whole interest, need not be made tion-</p> <p>withey‘e county court.</p> <p>Distributive share of the her bund’s estate, in his execut0n ,hnmls' , bythesurvivorof her band, and go to the executors ,of such lone?^</p> <p>Held the ex-ecutorsofthe here^ece^sary parties to . be relieved against him," and the wife ' «vxccutrix in dieir lives.</p> <p>Order refering the cause to an auditor, irregularly without proper intractions; ,'.iis report; exceptions aud decision of the court on the account : which cured the irregularties.</p> <p>Settlement with the county court before the suit in chancery, prima facie evidence : otherwise of a settlement made pending the bill.</p> <p>Executor shall account for the value of the commodity for which he let, and which was paid him as rent, for a lease-hold estate, and not for the fair cash rent only of tho premises, being less than the value of the commodity — he ■ shall not speculate on the estate.</p> <p>Charge made in an amended bill, not denied in the anwswev, and allowed by the auditor, improperly reduced by. the circuit judge, on a mere exception to the report without proof.</p> <p>To charge an executor with interest on the shares of the distributees, is not a matter of course-</p> <p>But—</p> <p>Executor may be charged with interest where he has recovered interest, or where he ought to distribute and fails to do so on propel' demand.</p> <p>Interest allowed a-g-ainst the executor on the circumstances hero, and directions for the computa- ' tiuti.</p> <p>Widow’s interest in the slaves of which her husband dies the owner.</p>

<p> Bonds for land. Executors and heirs. Jurisdiction. Jldministration de bonis non. Consideration. </p> <p>Case stated,</p> <p>Allegations of the bill by Wm. Paw-ling.</p> <p>Administrator de bonis non of Wm. Pawling deceased .</p> <p>Answer of ¿Speed’s ex-pcutor.</p> <p>Amended answer.</p> <p>Decree of the circuit court dismissing the bill.</p> <p>Where the covenant to convey land 0f the tostator, the personal ropreentitíetUo8 the damages, and maJ. them a°iídsurrender the obligation; breach tó'after the obli-, gees death, tive can maintain no sult’</p> <p>Jurisdiction to grant administration de bonis non with the will annexed, appertains to the court which had jurisdiction, and granted probato of the executor, and tho grant br anollie;' court 16 vnlil'</p> <p>bomiforland decided a ' 5 gainst, because it docs not shew the consideration paid, the allegations are contradictory and repulsive, the demand stale, and the cause without equity.</p>

<p>Debt.</p> <p>Case 12J.</p> <p>Appeal from the Christian Circuit; Beni. Shackelford, Judge.</p>

<p> .Equity. Jurisdiction. Occupants of Land. Sherijjs sales. </p> <p>Judgment in ejectment by Belshe against Barrett ¡proceedings under the occupant laws; judgment therein against Barrett, and sales under executions thereon</p> <p>Belshe’s bill to be relieved from the balance of the judgment rendered for balance of the account of improvements and rents, and ta set aside the sale under the executions; wherein Barrett was the purchaser.</p> <p>Barrett’s answer.</p> <p>.Decree of the -circuit court dismissing the bill.</p> <p>Equity cannot revise or control the judgment of the court in the proceedings under the occupant laws, unless a case of fraud be shewn, and that complainant had no opportune of resisting it before the final decision in 1 hat proceeding in the court of law.</p> <p>Equity cannot compel the plaintiff in an execution, issued on a judgment rendered for improvements under the occupant laws, who has purchased the tract recovered and all the other property of the Successful claimant, for a part thereof, to surrender any part of his purchases, or desist froni further proceedings on his execution.</p>

<p>Covenant</p> <p>Case 327.</p> <p>Error to the Madison Circuit; 'George Shannon, Judge.</p>

<p>Executors and Heirs. Bar by Former Decision. Parties; Equity jurisdiction. Mistake.</p> <p>Bill by Kbethiey, who mid recovered judgment against BudeR’s, administrator, o,i which execution had been returned nulla bona against the administrator and heirs, for discovery of assets in administrator’s bands, and next to subject the estate descended to < the heirs.</p> <p>Answer of administrator, shewing the assets fully act ministered.</p> <p>Demurrer by the heirs.</p> <p>Decree of the circuit court.</p> <p>Where, in defence of a bill against an administrator for the discovery of assets, he shews lie had fully administered, (which he may do by the statute, notwithstanding the judgment in the common form, to be made of the assets,) there should be no decree against him guando occi derint.</p> <p>Heirs wore not bound to account for the assets de scended to them, except on the contracts of the ancestor, •wherein they were expressly named, until the act of 1792.</p> <p>Act of 1792, subjected the heirs and devisees to be sued jointly with the executor in all actions maintainable against him.—</p> <p>But—</p> <p>Heirs were not liable to be sued otherwise than jointly with the executor, by any express enactment, until the act of 1019.</p> <p>Query, may the heir be .sued on the contract of the ancestor, jointly with the executor, after judgment ¡¡gainst the executor and the ex-eoutor returned nuilii bona?</p> <p>Isa judgment against one or more of the partners of a firm, a bar to an action against them and others discovered, after the first judgment, to be concerned %</p> <p>Case in New York against the action.</p> <p>Justice Washington’s opinion.</p> <p>Held in the Supreme court of the United States that a judgment against one partner alone is not a bar to a joint action agamst all.</p> <p>Subjecting land to the payment of debt?, being a procceeding purely legal, the chancellor can interfere only to remove obstructions to the free course of the law.</p> <p>If the creditors of the deceased sue the executor only,omitting the heirs, and fails to make the money for defect of assets, thechancellor cannot help him against the heir.</p> <p>Ignorance of the creditor of the deficiency of ■personal assets, is no ground for the jurisdiction of equity to subject the real assets descended to the heir.</p> <p>Ignorance of a party ig not a mistake to give the chancellor juris» . diction.</p> <p>If a paity become remediless at law by his negligence, he shall not be relieved in, equity.</p> <p>Creditor of the deceased suing and re1covering a judgment against the personal representative only, and failing to make the money on execution, cannot subject the estate descended to the heif by bill in equity.</p>