22 Ky.

Volume 22 — Kentucky Reports

124 opinions

22 Ky. 1Richards adm'r v. Porter's heirs (1827)
Covenant of Porter and Markham to Richards. Action on the covenant. Judgment for Richards against Porter’s ad minis-trator,quando cicadennt. íDeeds of gift Torterto his ■children. ■Porter’s last will. Administra-on'refasinC to give counter security in his tionbonda' and ordered to deliver the testate over to the sheriff. Bill by Rich-istratoi^aJ1" leging tiie administrator Sad not ass^ent and graying7 the slaves giren W Por-iffeíüne to migaba611 subjected-. Answer of and devisees'6 alleging the ’ covenant ro-g^bcen'sat’' isfiedlongbe-fore the judgment against the adminis-tratoT*c-- Evidence of the satisfaction of the covenant. Judgment against the'ad-ministralor is not proof of the demand, in a suit against the do-heoof slaves, ™ ® Ji1®^ intestate, but the dofend-Covenant before recov-erod satisfiedby the intestate, Equity will not of coufse lend its aid to effect a judgment at law, but will withhold it when the defendants might have relief against the judgment on their bill, or injustice ■\fcould be done by enforcing it. Decree!
22 Ky. 7Tevis v. Craig (1827)
Error to the Boone Circuit; Henry O. Brown, Judge. ■Motion:, Jurisdiction. Motions. Fee bills.
22 Ky. 10Patterson v. Brown (1827)
Chancery. Error to the Mercer Circuit; Will. L. Kelly, Judge. Limitations. Merchant-Partners. Accounts.
22 Ky. 13Overton v. Lacy (1827)
Error to the Nelson Circuit; Paul I. Booker, Judge. Chancery. Grants. Joint tenants and tenants in common. Partition of land. Frauds and perjuries. Specific performance.
22 Ky. 18Young v. Hopkins (1827)
Allegations of t e bill of Young against Hopkins fee. Answer of the Tfoun °s’ promissory notes, decree of the 011GUlt oourt‘ Evidence and facts of tlie °ase’ Two witnesses are not required to overturn the -answer of a defendant, as to a fact of which he professes ignorance only, and calls for proof, but might exist and not be known to him. . credited on other points, against it. Corroborat-ingcircum-of the second witness, to ovortarn tÍ!0 auswer’ is no ti-aiie'atiou'oi' fraud in the sale of land, thctitle1' complete, ° where ven-°'™oiet >■ shew that’ the couvey-anees were whereby ren-dec might witl' proper payc^cov-creel the de-fret. An innocent notes6 foun-decl as to him on a valid tion*different from what the maker of the notes re-not'be’drawn into loss by assenting to an arrangement which makef bv° the act of the third per-hlo toTheS1" maker. But where the payee participates in the fraud by -which the execution of hands. ll?e notf,s was tiated in!us Consideration. Purchaser of the entire estate of wen-dor owning bat a moiety, fraudulently representing wh Eslían 6 be relieved to ®^atl0nm0' Vendor in ?ucl? case mitteef a°m" fraud in the CuyJ‘ot benefit of or of incum-brancesmade ^'^fter-1'6 wards pm-chased in by vendee< vendee’s purchase of the other moiety of the estate —As might be the law in case of innocent mistake, Decision.
22 Ky. 27Pepper v. Commonwealth (1827)
Debt. Error to tho Mason Circuit; W. P. Roper, Juclgo. Sheriffs’ sales of land. Frauds and perjuries. Sheriffs’ deeds of Conveyances. Motions. Equity. Bonds. Damages.
22 Ky. 34Suter v. Cardwell (1827)
JtíPEAL TO the C. C. Error to the Franklin Circuit; Henry Davidge, Judge. Statutes. Default. Judgments. Damages.
22 Ky. 36Phelps v. Burton (1827)
Scire facias Error to the Madison Circuit; George Siíamon, Judge., Insolvent debtors. Record Warrant. Presumptions.
22 Ky. 38Trotter v. Williamson (1827)
Petition & Summons. £rror to the Fayette Circuit: Jesse Bledsoe, Judge. Practice. Pleading. Accord and satisfaction.
22 Ky. 40Rice's heirs v. Spotswood's heirs (1827)
statement of the facts. Bill by the !'eÍl\íuc!¡;ÍCe uian against the heirs of Spotswood _ sion ZíST contract, on the ground of tatkms a^to the boundary,nndfor;de-loot of title. Answers. Decree rescinding the contract. Where the obligee in a bond for the conveyance of land, dies before the - time stipulated for the convej anee arrives, and no cause of action had otherwise accrued to him, his heirs, and not his executor, is entitled to the bond,and may sue alone for a subsequent breach. But where the ground of the bill is the misrepresentation of the boundaries *];y the obligor or the defect of the title to the land, tlve heirs cannot' maintain -* thcir bill for irithoutmak-ing the executors party' mere a part of the purchase money for the laud remains unpaid, and the heir of the obligeo sues for a rescission of his contract, ho must make the oxecutior a.parly to his bill. Mandate for leave to make partios, or bill to be dismissed.
22 Ky. 43Commonwealth v. Kimberlain (1827)
On a scire fa-cias on a recognizance taken before justices of the peace,the presumption is, they acted, within their, jurisdiction— Close — “against the peace and dignity of the Commonwealth” is indispensable to a scire fa-cias on a recognizance in a criminal caso. J udgment a-gainl a scire facias for such delect should not be in bar, but the writ quashed for that defect.
22 Ky. 45Commonwealth v. Craig (1827)
motion. Appeal from the General Court; Henry Pirtle, Judge. County court clerks. Sheriffs. Revenue bonds. Auditor. Taxes. Costs.
22 Ky. 46Chiles v. Hoy's heirs (1827)
Question stated. Act of 1796. Common law executions given on decrees in chancery. By the common law, writs of execution could not go beyond the territorial jurisdiction of the court. Executions allowed to other conn- . ties m certain casos. Distinction between decrees for costs and other things as to the execution. Writ of execution may issue on a judgment or decree for costs, to any county in the state, against the defendant ivho may remove himself or effects, or reside out of the jurisdiction of the court. Decree for °°s*s e“>brac-terms decroe for money, Judgment,
22 Ky. 49Hart v. Fanny Ann (1827)
Wm, Hart’s wili* Judgment of tlie ing the free-' dom of the aPPellee- Question statc(i° This devise, “Alsey,Lucy, Jinafshall be" emancipated with their they should have any, as soon as they ríve at'ülrty yearsofage,” manumits the children of when their mothers re-tahitíiaffat" age.
22 Ky. 52Thomas v. Tanner (1827)
Detinue. Appeal from iho Livingston Circuit; B. Shackleford, Judge.’ Error. Practice. Evidence. National law. Jlulhenlica-tivn. Executors. Sheriffs sales. Bona notabilia. Jurisdiction. Exceptions.
22 Ky. 62Moore v. Smith (1825)
Chancery. Appeal from the Garrard Circuit: John L. BrjdíJes, Judge. Entries. Northwardly. Eastwardly. Lands unfit, for cultivation.
22 Ky. 70Lawlins v. Lackey (1827)
Chancery. Error to the Madison Circuit; George Shannon, Judge. Absent defendants. Process. Error-. Appearance. Praeticé.
22 Ky. 72Inlow v. Commonwealth (1827)
Bond of In-low, as guardian of Thomas. Order of the court removing inlow from the guardianship, and directing him to deliver the estate of the ward to the successor, and action on the bond for the failure. Declaration. Plea. Verdict and judgment fot plaintiff. Statement of the case presented by the evidence oi). the trial. Deed of gift delivered to another for the donee, held valid. Delivery of the property ¡riven by the father to the sons, by bill of sale, is not necessary to pass the title as between the parties, and the grant is valid against a subsequent do-nee, without feeing recpfd-ed.
22 Ky. 76Tuggle v. Smith (1827)
Motion. Appeal from the Kndx Circuit; Joseph Eve, Judge. Coroner. ¡Sheriff, Process. Executions. Statutes.
22 Ky. 77Anderson v. Perkins (1827)
Motion. Error to the Rockcastle Circuit; Joseph Eve, .Tudge. Sank notes. Judgments. Executions. Replevin bonds.
22 Ky. 78Miles v. Rankin (1827)
Chancery. Error to the Shelby Circuit; Henry Dayidoe, Judge. Parties. Principal and sureties. Gaming.
22 Ky. 79Fanning v. Pritchett (1827)
Bill in equity on a lost note. Fanning’s answer, admitting the execution of the note, but impeaching tho consideration. Answer of Caso to Pritchett’s bill. Case’s answer to I'an-ninff’s cross bill. Decree of the circuit court. Answer of one defendant, as here the obligee, is no evidence against another defendant, the as-signee. Statement of the facts of the usurious transaction. An obligor who is com? pelled for defect of proof, against the assignee of the usurious consideration, which is confessed by-obligee in his answer, to pay the judgment, may have a decree over against the obr ligee for the amount. It is not necessary ill a bill for relief against usurious in-eresl, to allege in terms, ihe transaction was a loan at 'usurious interest: if the facts appear it is sufficient. Usury disguised under the name of rent.
22 Ky. 82Morrison's ex'or v. Taylor (1827)
Assumpsit. Appeal from the Clarke Circuit: George Shannon, Judge, Principal and agent. Powers of Miorney. Jluihorily.
22 Ky. 91Mills' heirs v. Lee (1827)
Allegations of the bill by the heirs of Mills against Lee and Graham, for a rescission of the compromise contract. Writing cont¡lining the terms of the mSioftíw controversy ' to arbitra-■101,: Answer of Lee and Gra- Decree of the circuit court, dismissing the bill. Case stated iiom the pleadings, exhibits and proofs. Grounds stated in the bill. Assignment of the warrant. Survey, how executed, and certificate returned. Word “withdrawn” written in the margin of th.e entry book, does not prove the entry withdrawn. Inducements to the compromise. Point relied on by the bill for rescission of the compromise contract. Interference of adversary grants for land, is a sufficient consideration for a compromise, and if neither party superindu-ces the compromise by fraud or imposition, the contract shall not be rescinded. Consideration and validity of compromises fairly -made. Equity may rescind contracts of compromise, only for fraudulent representations or concealment of facts, or other unfairness. One party in a land controversy is not bound to disclose to his adversary the' facts which constitute defects in his title. • Merchants not bound to disclose their knowledge of facts which effect the market. Pacts which the party to a compromise must disclose, and of what he is not bound ta speak. O116 of the litigants in a controversy for land, claiming tinder the elder entry is not bound to disclose in a treaty of compromise, that it appeared the warrants had been withdrawn and assigned after the survey and before the grant. Interference between original adversary claims, a sufficient consideration for a compromise. Force of compromises.
22 Ky. 102Devers v. Dallam (1827)
Allegalionsof the bill. Bill pro coii-fesso as to Coleman. Dallam’s answer. Exceptions to Dallam’s answer, first sustained and then overruled. Exceptions to answer having been well taken, but overruled the parts of the bill not answered, taken for confessed. Purchase of lands made by a collector of the revenue in the name of a fictitious person, at a sale made by himself for taxes is nought, and his subse-qaent ven-dee of such lands, without notice of the fraud, may have the contract rescinded.
22 Ky. 104M'Haney v. Crabtree (1827)
Case stated. Jurisdiction. Release of the surety by an agreement Avith the principal, whereby the risk of the surety is increased without his consent, is ground of defence in equity, not at lavr. Plea by the surety, in an action on an injunction bond, that after the dissolution of the injunc tion, an execution on the judgment at Jaw had been levied on the estate, and the plaintiff had released the property, is not sufficient — because but a part of the action is answered, and the surety’s remedy in such case is in equity. Cases in the Supreme court, of sureties pleading releases by the indulgences to the principal, not allowed. Like plea in. New-York, allowed. Defence of sureties, on the ground of the indulgences extended to the principal by the creditor, is exclusively of equitable cognizance. Plea to the whole action which an-:- '■ swers but part, is ill. pliTor cannot be assigned in the decision agaiust a plea where the defendant after wards withdrew his plea. Interest is not recoverable as a matter of law, in the action on the-injunction bond, upon the damages and costs decreed in chancery and recovered at law Conclusion, Judgment,
22 Ky. 110Webber v. Cox (1827)
Ejecment. Appeal from the Breckenridge Circuit; Alney M'Leaw, Judge. Sheriff's sales of land. Fraud.
22 Ky. 113Gentry v. Barnett (1827)
Debt. Error to the Madison Circuit; George Shannon, Judge.' jpleadings. Slaves. Bonds in actions of Replevin. Performance of Conditions. Liability of wrong-doers.
22 Ky. 116Hume v. Long's representatives (1827)
Chancery. Errpr to the Franklin Circuit; Henry Davidge, Judge. Frauds. Chancery jurisdiction. Practice in chancery„ Assignors and assignees. Admissions.
22 Ky. 120Thompsons ad'mr v. Campbell's administrator (1827)
ghancehy. Appeal from the Henry Circuit; Henry Davidge, Judge. Mortgages. Conditional Sales. Usury, interest.
22 Ky. 122Monroe's v. Wilson (1827)
Joint action against the executrix and hei.s. Plene admin-istruvit pleaded by the executrix, and issue thereon. The heirs plead that the executrix had sold all the land, for the payment of debts, by direction of the will, and so they had nothing by descent.. Replication, denying the plea of th.e-heirs. The will, directing the sale of lands,, given in evidence; proof of sal<>, and of bonds for the purchase, money. Instructions, that the bonds were assets in the hands of the executrix. Spocial'ver-dict. Judgment, A verdict descended8to the heirs, ■which the ex-ocutor sold, nnder the directions of so'the' heirs' had nothing by descent, to wjndg-**111 mentinbar. There can be against for assets guando acá-asrint. A d defraud creditors would J'in^ the creditors thelleviseL*0 runas derived from the sale of lands by an executor, under the directi./ns of the will, are no! asm ts in his hands; "i and cannot be reached by proceedings at law. Chancery has oxolusiveju-nsdiction in suoh oases- A devise and dire8*ian in exccutor'to' sell the lands for the payment of debts, is not fraudulent within the meaning of tlie statute of frauds. 1'u an action against an executor and heirs, as such respectively, neither can be charged as devisees. In a joint action against an executor and heirs, they may sever in their pleadings, and there may be verdicts and j' udgmonts for or a-painst bo'h, or either, according to the evidence. Mandate.
22 Ky. 127Jones v. Froman (1827)
Statement of the case. Decree of the poui't below. Principles of the decree approved. Error in the directions for carrying tho decree into eifcct. In making a decree for the sale of land to satisfy a lien, the court should ascertain the balance due; allow time, and ñx a day m term for the payment; upon the nonpayment by the day fixed being suggested, a commissioner is to be apr pointed, to sell so much of the land as will raise the mono}', upon such terms and notice as the court directs,
22 Ky. 130Gill v. Bright (1827)
Slander. Error to the Shelby circuit: 15.E.rai3r Davioge Judge. Slander. Felony.
22 Ky. 134Briscoe's distributees v. Brady (1827)
Appointment .of commissioner;; to settle the ad-ministra tor’s accounts. Commissioners report. The guar-dia.', on behalf of the distributees, oilers objections, which the court refuse to receive. The county courts are invested with the power to settle the accounts of executors and administrators — commissioners are employed lor convenience and expedition. Reports of commissioners are of no validity until sanctioned by the court, and are open to the exceptions of either party, and subject to correction. Accounts of executors and administrators, allowed by tho county courts are prima fa-cie evidence against creditors and dis-tributees ; who must, therefore, be considered as parties thereto. Mandate,
22 Ky. 136Allen v. Young (1827)
The evidence. • Proof of the confessions of a party is the weakest kind of testimony. A verdict based upon the testimony of an infamous witness should not be allowed to.stand. Kvidcnce of the punctuality and fidelity of a ■witness in a particular transaction, is not admissible to su p-port his credit: his general character, not his conduct m particular cases, is the subject .of enquiry.
22 Ky. 138Lewis v. Morton (1827)
Chancery. Error to the Ohio Circuit; Alney M’LeAN, Judge. Bills of review. Practice in the court of appeals. Damages. Costs.
22 Ky. 139M'Dowell's adm'r v. Lawless (1827)
bill6 defend-6 ants made, and defect of Parti?s- The loss Of a bond gives a w’hirisdi^1' tionTo enforce the payment. in suits against heirs atiaworhi8’ chancery, it is proper that made°defendants: in chancery it is indispensa-hie. After the death of a surviving ob-rigor m a pending1 ¿ suit in chan-foreethe6"' ment, his personal’ropre-sentatires, heirs and de-yisees should representa-lives of de-ofüíe obh-8 gors should, also, be par- The personal estate and slaves in the hands of tho personal representatives will be liable before the real estate devised or descended. Slaves devised, pass as real estate, immediately to the devi-see; if not specifically devised they pass to the personal representatives. A specific de vise of slaves will not be presumed in the absence of the will. Mandate,
22 Ky. 142Lyle v. Williamson (1827)
 Receipt for goods, with a covenantto transport and delirer them. Suit at law, and judgment on the covenant. Bill for relief against the judgment, on the ground of mistake in the quantity of goods specified in the receipt. Mistakes in writings is a principal ground of chancery jurisdiction : and a court of equity is the proper tribunal to. apply to, for relief against the effect of a writing, by which a party, — in consequence of an incorrect estimate of the weights and number of packages,— receipted for, and covenanted to deliver, a greater quantity of merchandise than was, in fact, delivered to him.
22 Ky. 142Bush v. Dyke (1827)
Case. Appeal from the Clarke Circuit: George Sir anuda-, Judge. Verdict. Damages.
22 Ky. 145Taylor v. Bradshaw (1827)
Laa[]3 recoy-^entT eject' Commissioners aPP°in*-ecl 9 meats. • The oocu-pant’s right to f^prove-1* meats co&? tested, Objections to remS añd j ordinentoac" the'report Of the commissioners. Bill for re-thejuSdg1-'S valuefof the improve-merits. Demurrer to the bill. Upon a demurrer, the Sen asbe true? as Grounds of the bill, viz: evidence discovered since the trial, and fr.aud of Bradshaw in concealing the same. bhTtitle^" shown by Bradshaw to entitle him to pay for hisimprors-raen *' The evidence al,eSeíl to be eovóre^hy Taylor &c. Equity will pá’^from a judgment™ uPon of nevv- evidence after, the trial iaW)where that the par-, ty was not. virit.ni, in seaivliins Cor, and prucor-donothewhioh was within his reach be-(ore the {.nal. Á party iiti-bound to°dia-clore circam-átances which go to deleat or weaken bis claim. Fraud may bo committed by tho sup-pivt'sion of trull), a.) well a'i by tho su^'XMiioa of falsehood; but one from ivhom a party has no ri;-!it to ex-pyc.t information commits no fraud in remaining si-lunt. Tbo grounds for relief in this °^5 out;
22 Ky. 150Brashear v. Chandler (1827)
Covenant sued on. Breach assigned. A covenant, Snplyto repair, may b® construed to embrace only the repair of injuries accrued during the term. A covenant to deliver the premises at the expiration of the term, in good tenandble repair in evert/ respect, binds the covenant- or to restore the premises in such ten-antable condition, without any reference to the condition in which he received them.
22 Ky. 151Dougherty v. Morgan's executors (1827)
Chancery. Appeal from the Muhlenburg Circuit; Alney M’Lean, Judge. Bills of review. Parties in chancery.
22 Ky. 154Fenwick v. Ratliff's Representatives (1827)
Chancery Error to the Franklin Circuit; Henry Davidge, Judge. Usury. Mortgages. Tender. Rents. 'Practice.
22 Ky. 157Conover v. Bell (1827)
^ se^o Witness that he is interested in the inJ-Vpartyj the adversa* TJt0 his «*■ to testify,
22 Ky. 157Williams v. Cummins (1827)
la ‘F actios of^wo co*-*3 obligors, the otter is a the obiigee;
22 Ky. 158Woolley v. Crutsinger's adm'r (1827)
Covenant sued on. Breach assigned. Plea of usury and payment. Evidence on the trial. Instructions of the comt as to the usury- Verdict, Judgment, Motion for new trial, Inconsistency oftheverdict. Writing devised to cover more than legal interest, void. An obligation to this effect, “I promise to pay S. C. $300, with legal interest, one day after date, and let her, S. C., hare the field she noiy occupies till $100 of the money is paid,” is a device to cover usurious interest, and the court declares it void-■ —Note, the obligation bore date Aug 1817. See 2 Dig. L. K. 1226. Calculation's shewing the inconsistency of the verdict. .Female usurers. Judgment andmandate,
22 Ky. 163Webb's heirs v. Webb's adm'r (1827)
chancer®-. Cross writs of error to the ^cott Circuit; Jesse Bledsoe, Judge. Bar by former decision. Parol contracts for land. Executors. Assets. Advancement Slaves. Rents. Commission. Interests Bonds from distributees to executors. Guardian. ' . .
22 Ky. 171Litton v. Hopkins (1827)
Covenant. Error to the Bourbon Circuit: C eoiige Shannon, J udge. Covenants. Concilium. Dower'.
22 Ky. 173Samuel v. Commonwealth (1827)
Agreed case stated. ,Judgment of the circuit court. Whore the plaintiff in giveftottie" cieputy sheriff power over it, gives directions for the of^o'the™1 wise than as required by cTa'/sheriff1" isnotrespon-sible. Deputy shcr-jir shall not execute a writ of execution assigned to himself.
22 Ky. 175Adams v. Logan (1827)
Grant to Trigg after his death. Trigg’s will. Extract from the will of Trigg. Widow’s re-alTbenefit" °f 'vilRr the Evidence. Decision of the circuit court. Land held by entry, descends to tho heir, or may-have been devised under tho British or our former statute of wills. Grants issue’d after grantee's death, vest tho land in the heirs or devisees. Trigg devised his estate to his wife and throe children, if his wife should not be en-ccint at his death, but if she should, then to her and his four children, and he lived till his wife had the fourth child, and was enceint of tho fifth: held that all the children took an equal share of the estate. Husband is tenant by by the courtesy, unless coverture, but the heirs of tlie Wlfe SYis Hfe!01
22 Ky. 179Baker v. Talbott (1827)
Deed of partition between the McClintocks. ÁllCR-ationsof the disturbance, and obstruction in the common way, established by the deed of partition between the ground divided. Prayer of the bill lor the defendant to bo compelled to remove the obstructions in the passage, and enjoined from renewing them. Answer. Decree of the circuit court. Claims of the parties slated. Description of the ground, and points of controversy. Linés called lormgrants, survey, and deeds, though dWct^and withoútan breadth, may bo explained tobo curved and to have ’ breadth. Held, on the evidence and deed, that a mathematical lino, and ' not an alley, was the division between the parties. Remarles on the smallness of the case.
22 Ky. 185Head's ex'or v. Manners' adm'r (1827)
On the trial of the issue on the plea of non as-sumpsit, within 5 years, the plaintiff must prove his action accrued on a promise to pay within the five years; the burthen of proof is on him.
22 Ky. 186Givens v. Ferguson's heirs (1827)
Eerrx. Error to the Livingston County Court. Ferries. Record.
22 Ky. 187Givens v. Ferguson's heirs (1827)
FeRRYi, Error to the Livingston County Court. Ferries on the Ohio. Record.
22 Ky. 188Roberts v. Sayre (1827)
Chancery- Appeal from the Fayette Circuit; Jesse Bledsoe, Judge. iMortgages. Consideration. Sureties. Replevin bonds, Judgments. Ca-obligors.
22 Ky. 192Blight's heirs v. Banks (1827)
G-rant of the anffckd^9 bourne. Blight’s claim of title. Deeds of bargain and sale and'cial- S bourne to De Lomerie, and tion,°ni!rma' Banlis’ letter to Clalrney bourne1. Claibourne’s deed to Tronchará. commission-era of bankruPtcy sf AI‘"J?18 S Conveyance from lhe assignees to Deed of Keighan to Ervin and Jones, Ervin to Jones. Jones’ deed to Bllshtp Trenchard’s deeds to Allison. Alljson to Shannon. Shannon to Bl7a,r!’.Ij-yl!3 amli‘ries- Conveyance ím]a Br?a"’. Blight’s bill alleging tbs deeds in his claim of title, registered"according to law, aijd proved' and others are lost, and praying deeds of confirmations. Banks’ answers, and ^a^stthe Other defendants‘ Equity has jurisdiction parties^6 * ^ through whom the h^itleTy68 deeds lost or not register-to law°toinS execute deods of con-be registered e regís ere . bills^ancKhe chancellor’s jurisdiction to clear the obstructions6 and settle complicated ’oaiheVfitoS to land. Answers of Banks» their UieiTfncon-sistencies as to the execu-deedsof conveyance, alleged in the £e equino* an admission of. them, Effects of re-stmmenitrto proye prf0P deeds, Deeds exccti-ted abroad, tered hero618" within oighteen months. Tbe original Certified^cd-jpy must be produced to tl-ecording 0 loer‘ Banks’ cross the land to'Ct payment of the balance of die pnr-chase money. Admission or silence of a part of the defendants, cannot effect others who have an interest in the facts alleged. Otherwise, where the other defendants have no interest in the matter confessed. Where the vendor pursues the land for the consideration money, and a part has been sold to a purchaser, though with notice, the balance unsold shall be first subjected. If all the lands be sold, and in the same situation, they shall be sub- , iected rata-bly. A lien for the purchase money cannot be enforced against a purchaser for a valuable consideration without notice. 'Deed to such a sub-purchaser, read against the original vendor, claiming a lien, on the bill of the grantee, taken pro confess» against the grantor. In a bill against the grantors, in a long chain of conveyances, not regularly registered, for a deed of confirmation, it is no de-fence for the patentee, that he had not been Paid’where it appeals ienee, were for valuable noticed °U Where the gal title, and °'!b goes to nave a deed confirma-the" defendant 8 cannot resist could not enforce as actor. La and ^posses™8 sion. vendor takes personal se-carity for the can-" notafter-wards assert even^pur-^ chaser with notice, An order of publication, directing the advertisement eight weeks, hut ii fact published for two months, is sufficient. 1 Depositions filed under the agreement with Lewis. History of Lewis’ claim. Suits, decrees and agreements between Banks and. jL,ewis. Lewis introduces himself into this cause, and is made party. Slight’s amended bill against the representatives of Lewis and Banks. Lewis’ and Banks’ answer to Blight, exhibiting their partnership agreement. Lewis’ agreement to the reading of the depositions, held to be obligatory on Banks. Banks’ eroga against sentatives of Lewis; their answer, and tacase on the controversy with Vendor, who after his con-^5 chiim^o the land, and sells and con-other^cannot subject the claim of his vendee and his alienees to sale, for a the consideration money, ¡Putt iSse°ii 6" to* in dis-fcliarge of hot claims to land! aim Equity has {orenwTnd simplify the tnvncr’s evi-tie-smd°to*íé-move incum-brances and lated to aiiU" iioy his°jKw-session, add lessen the yal-ue o tie fes-tats. resist apriorj unrecorded J Subsequent conveyance, must not only have paid the consideration money, but must have obtained a conveyance before notice. Sale and conveyance, under a decree against one not having the legal title, docs not affect the holder of th* legal title, not a party; Sale by execution, a-gaiust Blan-ton, not having the legal title, passed nothing. Decree oh ■ tained on a publication for eight weeks, is not binding on even the par ties, but is void. Ratification of Lewis’ claim pending the suit, ineffectual. Lewis’ claim under the Register’s sale and deed. Surplus in tracts of land sold in several parcels by the Register, at different sales, does not pass by bis deed’s for the whole tract. Sale and conveyance of the Register, by mistake, where the taxes had been paid, does not pass the title. Where there is a variance between the quantity of the tract, returned as sold, by Use Register to the Auditor, and certificate given the purchaser by the Register, the return made to the auditor shall prevail, and his subsequent alteration of his books is ineffectual. Query, as to the effect of the Register’s deed inclu-dingtoo great, a quantity of land. Register’s sale heldprí-, ma facie correct. Surplus accounted for by the fact of the boundaries, including other superior adverse claims. Blight’s claim held (;he superior. Trenchard’s contract with Barbour, Barrett and Servantes, to settle the lands by tenants, to bo interested in the paper •town Ohio-pimingo. Settlepaenls by the tenants under the contract with Barbour and others. Contract with Barbour &c. not having been performed, but remaining a dormant bur den on tho title, is rescinded, and a release oi-dered. Where the defendants in a bill for a new deed, in confirmation of former deeds, lost or ed, for the purpose of simplifying the title, answers, not resisting the relief, the complainant may have his decree and deed but pay the costs of the suit. Decree dismissing the bills of Banks and Lewis’ devisees affirmed. Decree dismissing Blight’s bill reversed, and mandate for a conveyance. ■Costs. petition for a re-hearing. Petition for a re-hearmg. retition for a, re-hearmg, Petition for a rc-hoaring. Petition for a re-hearing. Petition for a re-hearing, Petition for a se-hearing. Petition for a rc-Uearing. Petition for a re-hearing. Petition for a re-hearing. Petition for a to-hearing. Equity ha.s jurisdiction to order noiv deeds of conveyance to be executed, where the oi-iginals are not registered, that they may be re-protect the estate from the creditors grantors, auufileTde feotive in for-mslitios, sup-kjgal Titles'* where the ’ evidence cannot bo adduced in the court",°0° take jurisdiction, merely to tiTiTitvof” suits, or clear an entangled it is no de-fence for the Cajnst The" bill of the re-mute alienee, Brought for a £o recorded* that he had’ not r-ceived ™LraiJc1hL?<L it appears he had taken attitude of .gives the party in such case 110 acl" Vdn ag An agreement of parties filed in the circuit court touching the management of a cause, and there used, regarded and given effect here. It is not necessary in a bill by a remote alienee of the paten-tee, for a renewed deed, to be registered, that all the intermediate grantors and grantees be parties, if their deeds he proved. Deeds of the intermediate parties, how proved &c. Certificates of publication of orders against absent defendants, ivliat certainty required. Editors, whether the printers fr not may make such certificates — See the statement of the facts, in the petition, page 218, and the reed'd of the pase. Want of an affidavit of the complainant, that he does not know the names of the persons sued as unknown heirs is error, —such affidavit can be made by none but complainant, unless it appear why he could not make it: —query, as' •to what would excuse him. Decree by consent, held to be a decree between only the parties who had appeared, excluding the absent defendants. Correction of the mandate,
22 Ky. 225Rawlins v. Timberlake (1827)
John Craig’s power of attorney to Lewis Craig, Deed of conveyance by Lewis Craig, as attorney for John, to Rawlins and Hobbs. Hobbs’ 'deed to Rawlips. Rawlins’ deed to Tim berlake. Tímberlaké’s bill for .respis» sion. Allegations of the bill. Amended 1 Supplement» al Answers.- Complainant’s answers to defendant’s interrogatories. Decree of the circuit court. Case briefly stated. Where complainant shews a proper case for relief, on the ground of an adversary claim in litigation in another court, what shall be the course' of the cause? Where pm-chaser had] full notice of the adversary claims, he cannot have rescission because the warrantor becomes insolvent, and he fears a loss, of the land. ■Where apart of the land conveyed with warranty is lost, tho purchaser may have compensation by injunction against ajudgment for balance of the purchase money, the war-rantor being insolvent, but not a rescission of the contract. Purchaser in -such case huving had adversary^6 ciaim before his purchase, cannot have tion, and the oause delayed till the g¿¡“s^ryr¡ ecfi^anothsp court, puro¿aser a¡, jowed an iñ-' junction a-Ifent for balance of the purchase J^damao-es by the breach of the war-™¡)^antorbe-ingSnsolyent. That the judgment wa? recovered in snch case by assignee of ee obligation, without Sot'change* •the case, Mandate for a fact left certain in the ascertained*3 on the return of the cause,
22 Ky. 235Legrand v. Baker (1827)
Contract between Le-grand, Baker &c. Logrand’s declaration in covenant. Defendant’s special pica. Plea of covenants performed. Trial, verdict and judgment for plaintiff: judgment reversed. New trial; verdict for plaintiff, New trial Grounds of the motion for the new trial. Affidavit of Mr. Wick-liffe to shew surprise, Mr. Hawes’ ■ av,t" Defendant’s a aavit‘ Facts admit* ted of the occurrences in court. statement of Maj. Barry, H£úntlff,s ev-°n * Motion for a over" Instructions moved by defendant overruled. instructions given by the court. Further instruction of defendant oVerruled. Legrand’s letter to defendants read on (he motion for a new trial. Third trial; verdict for defendants Overruled; J udgment and exceptions. This court first enquires into the propriety of the order granting the first new trial, and if that be erroneous, orders a judgment on that verdict. Opinion of this-eourt on thb first trial of a cause here cannot be revised in the same canse, on its being af-terwards brought here the second time. .Held theevi-d?rtedSthe verdict having conduced tó prove Le-liness^toper-form on ¿is part. field writing to one'of' the covenanters, stating, that Kverecfhñf6" part .if the property, though all wou](j be sued, the others FFiFoked t f0er °hedam-ages, was not a release, Evidence of FnFfeFsadmis" sible, under*” the plea of covenants performed, in ailtlsati°n of aamaSes- One joint ob-ligee may re-ce*v®ti)e money fthey divide it a-monsthem-obligor not concerned, Verdict ap-FFidenc°nthe Principle on which the damages for breach of the covenant are recoverable, and the measure. Surprise — in what it consists. Evidence of-a new trial, examined. Ignorance of taeir c.ttor-ne.ys, of ¡he st“leJ!efpn sufficient1 to™" authorise a now tvia3' Ignorance of part of the counsel, or part of the defendants, of a fact, until discovered on the trial, before known to the others, can constitute no ground for a new trial. Ignorance of one of the counsel, of facts known to the other, and which both of them and the party were bound to notice, can be no ground for hew trial. Opinion on the evidence. Mandate.
22 Ky. 251Jouitt v. Gaither (1827)
Chancery. Error to the Washington Circuit; Will. L. Kelly, Judge. ■Mortgages. Decrees — final and interlocutory, Practice.
22 Ky. 254Hawkin's adm'r v. Craig (1827)
Detinue. Appeal from the Jessamine Circuit; Will. L. Kelly, Judge. Slaves. Dower. Husband and wife. Assignment of dower. Evidence. Error.
22 Ky. 259Dudley v. Grayson (1827)
Ejectment. Error to tho Jefferson Circuit; John P. Okmiam, Judge. Amendments. New demises. Aliens. Conveyances. Pre-tence titles. Bills of exceptions. Evidence. Records of trustees of towns. Pedigree. Presumptions.
22 Ky. 263Smith v. Peyton (1827)
ji/«'returned nulla bona, to subjcr< ll55-?u" Bill against a flp.hlnr nffpr terestin estate devised to his wife m the executor’s hands. Will of William Grant. Answer of the executors. Smith the debtor, his answer. jjecree ofthc circuit court, Ecluit;y ought the salegan uncertain in-terestinan ñumbe^of unknown slaves: — Sen aflie’ Contingent interest of the husband in slaves devised to the wife, not reduced to possession, not a proper subject of sale, by the chancellor’s decree for payment of Ins debts. ■interest of the husband in the property. 56qrfty will oaF°df'a Üle «slaini to atl -undefesd in-expose and-sell the thing terest in unknown property,but clear all in cum-hra tines. ani? Estate cover, ed by numer-ges*, how to" be sold. , objections to the sale of an undefined claim in an unknown estate by the chancellor’s order. interest of the husband in visodtothfi0" wife and all the children thenT/being’ and after- ’ ■wards to be main’ing1 un-6" divided in ths hands of the ¿annot°be subjected to the payment of during the Si life of the wife’s father, Wife’s inters“od bTprotecté». by the chan-" andS ¡Li subject- ' ed, without securing her Ie J urisdiction and powers of the courts of equity, under the statute subjecting choses in action and equitable interest, to the, payment of debts.
22 Ky. 271Ellison v. Stevenson (1827)
Ta cottsVoi-wit-nesses claims, Objected that ^ coulfl ^oTallow the claims of wit-n^se.s. Objected the, witnesses * Evidence, Jailors’ claim for attending as a witness, ¡resisted. St is the duty of the clerk, to tax and ascertain the amount of costs, for which judgment is rendered, subject to the revision of the court on the eomplaint of either party. In deciding on a rpotion to correct the taxation of costs, the quest! on is not how the clerk arrived at the result, as by hiraselg or deputy,or by swearing the witness, or not, but whether the conclusion be, correct. Statute concerning the compensar tion of witnesses and allowance of their claims. Clerks had the power by custom,before the statute, to allow the claims of witnesses and tax the costs, and the court the power to reverse their acts — Clause in the statute that the witnesses shall he sworn, is butdirectory, and the omission cannot effect the taxation. Deputy clerk may allow the claims of witnesses and tax the costs. Cleik cannot r<0s.^°* $ ehiJ deputy, Deputy sheriff cannot be restricted in his power,but when constituted, has all the powers of the principal, Üiffetence between an assistant and ' á deputy. ' Jailer is entitled to compensation for his attend- ■ anoe on court as a witness. He is not bound to attend court, as jailer in person, but may attend by deputy. Judgment of the court. Judge Mills’ dissent. judge Mills’ dissent, Judge Mills’ dissent.
22 Ky. 280Grant v. Combs (1827)
Chancery. Appeal from the Pendleton Circuit; John Trimble, Judge. Vendor and vendee. Mistakes. Injunctions. Compensation. Resscission of contracts.
22 Ky. 284Cook v. Vimont (1827)
Declaration in the first action and verdict and judgment for defendant. Second action for the same den;and. First verdict and judgment offered in evidence by defendant but rejected. Former judgment for defendant, may be given in evidence under fhe plea of non as-sumpsit, If a defendant after verdict and judgment rendered for him, which would bar another action, acknowledge the demand was just, and promise to pay it absolutely, he is bound. Thé former judgment is no bar to an action on the new promise.
22 Ky. 286Hyne's representatives v. Campbell (1827)
Bill by the Campbells, for rescission of their executed contract of purchase of the land from Hynes in his lifetime. Answer of the representatives of Hynes. Amended answer shewing the acquisition of the title, and offering to convey. Decree of the circuit court rescinding the contract, Contact acquitted of fraud. Want of the regular registration of the deeds of conveyance, by which the 1 vendor deduces title, there being no other proof of their execution, is an insuperable objection to compel ngthe purchaser to receive the conveyance. Certificate of Justices of the Peace, of the acknowledgement of a deed for land, in other counties, must shew the deed was h no rated ged, but was sub-sm-ibed in his presence. Former de- _ cisión that it is necessary for the jus-, tice to certify the deed was subscribe ed as well as acknowledged in his presence, discussed and approved. Act of >96, j Dig. L. K. ing themod’e of authenticating conveyances, out of the state, and not requiring the dee-ls to be subscribed before the justices of the peace, -was repealed by the act of ’85, 1 Dig. L. K. 307. That act of ’85, required á commission to be issued by the olerk of the court where the deed was to be recorded, to the justices of the peace, to re* ceive the acknowledgement. Act of Kentucky of >92, does not require the commission to the justi-tices, but requires the deed shall be subscribed before them, and so they must certify. ?f there were a covenant of warranty in the deed, the purchaser might be compelled to await an e-viotion, and rely on that, but there being no war-ruhty> the contract rescinded. On the rescission of a contract for land, because of dGf( et.of ti-tule, of which the vendor-was misla-ken, and in-noce.ntJy) the moneyfwidT interest, and 110t the value “/t^misas-ure of recov-er7- Theconsider-a'ion stated ■“ is conclusive between the parties unless fraud or mi?take in Iwíhl nf leged and \7TOV6Ci» andTvWence offered to Prov.e thG . greater than1 that declared, in lhe veyance* ’Where the 0n^Consider-ation and divers others, without spe-oifying them; ^^¡¿era-6 ti0ns wore, may bo a-verre^and p v Query, of the competency of proving an additional and different consideration. It cannot be averred and proved the consideration recited was greater in the same kind, •without alleging fraud or mistake. Entry in the books of the vendor, •wherein he charged the 3and at a higher sum than that recited in the deed, is inferior evidence of the consideration, and cannot prevail against the recital. Decree for rescission of the contract for complainant, and for his Jive shillings consideration money, with interest,
22 Ky. 293Clark v. Boyd (1827)
Covenant and assignment. Declaration. Pleas in bar. .Demurrer to •pleas and judgment for plaintiff. Additional pleas. — Practice. Verdict and judgment for defendant. To a declaration on the joint and several covenant of two against one, by an as-signee, aver-ing notice of the assignment to the defendant, only a plea of payment or accord and satisfaction, made by the other obligor before defendant had notice of the assignment, is good. Denial of a fact from which a legal consequence is de- . ducod, is a sufficient denial of the consequence. Where there is an errone, ous judgment for plaintiff, on his demurrer to a sufficient plea of defendant, there can be no error committed after-wards in sustaining other pleas, nor upon the trial, to the plaintiff's prejudice —His confession of defendant’s sufficient plea remaining in the record, is a bar to his complaint of subsequent errors.
22 Ky. 296Wickliffe v. Sanders (1827)
Declaration in case. Plea, not judgment for plaintiff, Motion in ar. ment'orer-2* ruled, Objected bought0to have been trespass and Iiot case‘ Hules for the case stated, an execution other perron to bn levied on the plaintiff’s goons, is trespass not case. Action against the plaintiff in execution, for causing Trover may be maintain-trcsWas3°iIes' pd 1 s‘ Verdict in general terms aUeginga1 •wrongful taking the plaintiff's goods, not saying with force, and selling them, whereby they were lost to plaintiff, not good,because damages for the wrongful taking are assessed, and the malafaci-um, was in the conversion only. Force in the taking, though not alleged is necessarily implied in the averments, damages were, therefore, assessed by the jury, for the force, and the judgment may be arrested. Statute of jeofail does not cure the error, in bringing casa where trespass is the ■ action. Mandate for. plaintiff to have leave to amend his decoration.
22 Ky. 300Sharp v. Morrow (1827)
 ótíÁKCERt. Error to the Muhlenburg Circuit: Alney M’Lean, Judge. Practice. Auditors. Decrees. Parties. Witnesses. Parte r.ers. Pleadings,
22 Ky. 306Stansberry v. Morgan (1827)
covenant sued upon, Declaration-, Pleas; de-™wrer; tri- and judgment for plaintiff, Substance of SP®" verruled below. Amended declaration. decision of fhe circuit 0DUfi“ B. s. qoven-succeeded in obtaining a decree for op-suiTa gainst p. s., M. L., G. B., w. s., S'” ancfmi-^1 known to the parties, EH-iab®,th interest, the main object Hgor: there" can be no re-bqvery on this contract for obtaining a decree against the other defendants— —Query, if obiigor had lcnown of Elizabeth’6 death, and concealed it. Hard cases of covenants with conditions precedent.
22 Ky. 310Goodloe v. M'Lanathan (1827)
Chancéry. Appeal from the IlopJdns Circuit; Alney M’Lean, Judge. Practice. Evidence. Fraud.
22 Ky. 311Inskoe v. Proctor (1827)
Chancery. Error to the Bracken Circuit; W. P. Roper, Judge. Mistakes. Parol Evidence.
22 Ky. 322Williams v. Burnett (1827)
Statements of the facts. Burnett’s bill in relation to Jand in Ohio. ^j_P“na to cuted; noap-pearance; ^11 P''°co^' an e" Suit by pur-cha^e^of pen'sation for deficiency of the quantity take of the parties, is an(i the jurisdiction ap-j^gfca¡r”3u*° wh^ethe defendant may be served ^ mother, unless he ap-’' pear and J
22 Ky. 323Alexander v. Wales (1827)
Articles of a-groement sued on. Declaration. Plea and demurrer sustained. Where it was stipulated between the overseer and employer, at n certain sum. for the year, ond' that either might be oil' at any time, and the money should be paid at the ond of the year—held, the overseer should be paid pro rata —that in Such case, the pliiintiff must iivor performance of the whole year’s service in his deola-hition, if he would recover for the whole, or if for part, he must aver part performance; and not for the whole year. To aver part performance, in the replication, is a departure in pleading. Averment of the performance “of all things on the part of plaintiff to be performed,” not su'Kcient to embrace the performance of a condition precedent. Leave for plaintiff to a-mcrm his declaration.
22 Ky. 325Nichols v. Taylor (1827)
Chancery.' Error to the Daviess Circuit; Alnev M’Lean, Judge. Signatures to «triís and endorsements. Injunctions. Restitution. Practice. Mandates.
22 Ky. 327Barnett v. Montgomery (1827)
Chancery. Error to the Lincoln Circuit; John L. Bridges, Judge. Jurisdiction. Process. Warranty. Damages. Rescission. Compensation.
22 Ky. 333Field v. Wallace's adm'rs (1827)
Assumpsit. Érror to the Ohio Circuit; Alney McLean, Judge. Executors &c. Pleading. Repleader. Limitations.
22 Ky. 335Pool v. M'Caughan (1827)
Writing declared upon. Judgmenton demurrer for plaintiff. No averment can be ipade in a petition in the action, under the statute; helice, where that is necessary, this form of action is not * maintainable. Where the question “is the debt due or not,” depends on whether the defendant had perform-aJter" ¿ition allowed him, the petition and notlie.
22 Ky. 337Hodges v. Weltberger (1827)
Declaxatl0IP Evidence tliat defend-, pontiff off a ferry boat, i»to Green;river, by design or accident. Instruction refused, Trespass is the action by negHgence!
22 Ky. 339Bowman v. Green (1827)
Covenant on an appeal bond,in case of an appeal to the circuit court. Count on a bond executed by -defendant, and one other person, stating it to be executed by two others, is ill, on oyer and demurrer for the variance. Repleader. Case before the justice and the circuit court. Judgment to be rendered on a plea of fully administered, admitted. Appeal lies to .correct a of imifpropriis, or testatoris, where it ^anL°acc¿~ derint. Forms and a-mendmentsof JU Sments- Where the judgment of the justice against an executor, is de bonis propriis and he appeals, and judgment is rendered against him, for the same sum, de bonis testatoris, the condition of the appeal bond is not forfeited. '
22 Ky. 342M'Cracken's heirs v. M'Cracken's executors (1827)
CHANCERY. Error to the Woodford Circuit: William L. Kelly, Judge, Executors. Guardians. Orders of the county court. Waste. Compromise. Interest. Improvements.
22 Ky. 354Triplett v. Bradley (1827)
Count. Plea of set off on a qmn-twm vakbat. Setoff, on a note. set off, on an award. N°te assign-fe„janteon" an iifermedíate assignor, 0 was },;Sj may be pleaded as a set off. Variance be*e ^aadan a’ Error. A-mendment9'
22 Ky. 356Glass v. Brown (1827)
Statement, Suit by Gloss o7the°caii-n tract. Allegations of falso representations of title in Cox, who conveyed to Glass at Brown’s instance, and his know! edge,but concealment, of Cox’s insolvency . Brown’s answer. Decree of the circuit court. Found on the evidence,that the vendor, Brown, falsely represented Cox held patentee’s title, and knew but conooai-cd Cox’s insolvency, and thereby induced Gless, the purchaser to surrender his bind and accept a deed froni Cox — and —Held Glass was entitled to a rescis-sidn. Rents and interest,- and release of the claim to be made, upon the rescission of the contract. It having been alleged by complainant in his bill for rescission, that an action at law for the land, was depending against him, the result of which not appearing in the recorded, ordered that the fact be ascertained by a commissioner, and the final decree as to rents, and surrender of possession, to be governed by the report.
22 Ky. 360Alexander's executors v. Mann (1827)
Declarations. Question stated. Liberty of covenaIlts‘ Intention oí' the parties to be collected from the whole instrument, and not to be ascertained by any artificial rules, in determining whether g. covenant shall be understood a condition precedent or not. Dependent oovenants.
22 Ky. 362Kercheval v. Swope (1827)
Ejectment. Error to the Mason Circuit; W. P. Roper, Judge. Specific performance. Tender. Interest. Time. Compel 'sation. Penalties.
22 Ky. 373Shields v. Craig's administrators (1827)
Chancery, Error to the Montgomery Circuit; Silas W. Robbins, Judge. Practice. Revivor. Executors.
22 Ky. 375Roby v. Sharp (1827)
Chancery. Error to the Bourbon Circuit: George Shannon, Judge. Mistakes. Usury. Assignor and Assignee. Answers. Practice.
22 Ky. 376Holliday v. Hickman (1827)
Matter of the bill for .distribution. tingupavriji" Decree of the circuit courj on the biI!* Decree on the cross “i!- Original d'e-cree set aside, ^ree an¿ de"„ peals." ap" Orders touch-¡ng the ap-^inio^oi'0^ i he decree. Writs of error. Plea of the statute of limitations. ( Decree a-band andS* wife, touching the wife’s ’• '"andaeaüjsfe'* in the "‘‘dStu/'Vrv iímnations,• .will bar all. f. H
22 Ky. 380Payne v. Wallace (1827)
Statements of the facts. Bill by Payne junction and effectuation or rescission tract.8 C°^ Answer of the orossbilU ga°nst Éd-' mondson; interrogatories p“ainantsañd Edmondson, Process. Answer of Edmondson drawn, and amended bill to obtain the admission,ltS iiot success-fui- Complain - arts .-nswtr to defendants interrogatories. Decree of the circuit court. Form of a decree for the specific execution of a contract where the conveyance is not to be made till the money is paid — the court must see all done. Vendor's Hen in such case ought not to be lost. Where there were grounds for the injunction, when obtained, which are removed pending -the suit, no damages shall be given — Causes for the injunction stat- Statem.ent of the points of controversy. Contract between Ed-mondson and complainants. Case of the contract between Ed-mondson and Mosby, as presented on the pleadings between the complainants, Payne and Anderson and Mosby’s representatives. Case presented on the pleadings between Mos-by’s repre-resentaties and Edmond-son. Consequence which would foí*°.w a re~ contract be-' twoen comP|ai"ant!) anci-os 5‘ Prayer of the bill being for the land, if in the power of defendants, and to set aside the contract, only in case the land could not be had, the contract cannot be rescinded, if it appear the land can be obtained, though the bill charges it was out of the defendant’s power. Vendee, pending his bill for a conveyance, if to be had, otherwise a rescission, apprehending vendor had no valid contract for the title, purchased from the holder of le litlej and executed a mortgage fp.r the purchase money, hut the defend ant, vendor, shewed his right to a conveyance: ordered that complainant release his equity of re, (lemption, and then thp holder of the title convey to his vendee, and he convey to the com-' plainant. Vendor’s lien for the pur-chaso money. Vendee’s lion tor his ad- ' V6sse8sionillS i ■ • ’ Decrees for conveyance, chase6 Pon" c se money. Case of com-pamant with 1 mon son. Costs.
22 Ky. 389Caldwell's adm'r v. Shepherd's heirs (1827)
chancery. JSrvor to the Washington Circuit: William L. Kelly, Judge. Champerty and Maintenance. Sheriff. Liens. Attorneys. Maxims.
22 Ky. 393Blanchard v. Harler (1828)
Ch4ncerv, Error to the Montgomery Circuit; Silas W. Robbins, Judge. Entries. Surveys. Division of the judges.
22 Ky. 395Hardin v. Barbour (1828)
debt. Appeal from the-Oldham Circuit; John P. Oldham, Judge. Injunction bonds. Damages. Statutes. Bank note contracts..
22 Ky. 398Kennedy v. Vanwinkle (1828)
Covenant for bank notes sued upon. Assignment of breach. On an enqui-ry of damages in an. action of covenant for bank notes on the banks of Tennessee, IÍ. Carolina, Alabama or Virginia, excluding such as should not be paying specie, the defendant may prove the value of of the paper when payable, in diminution of tl?e damages.
22 Ky. 399Maupin v. Goodloe (1828)
Daniel Swa' and^tes-lament, Statement of facts. .Decision of the circuit court on the will, and verdict and judgment for defendant. On this devise succeeds ing in the will, a general devise to the wife1 for her widows^éeded b a residuary y bequest to James, a son —“I give to ™y daughter negro girl 3 named Dol- ' ino.re,as?.T, our death”— passed immediately to ^hnartine for life — and that a child ]y ™Jtween" the testator’s and widow’s at her death* to Catharine and not to James* Argument on and^imita °B tion in the" testament.' Query, as to bom of the slave rdevised date oTthe* deviso and death of tes-s^eaksattes iatpr’s death" " Partus sequi-tur ventrem— where the will speaks, depends on the testator’s intention. Judge Mills holds the contrary of the opinion of the Chief Justice. Revising clauses of the Wii ' Question stated. Expression “except what shall bo mentioned hereafter,” held to embrace only the articles rfier-w.n'th' ulhfi"' wise du-:,.: a . and not such as were men-tioued for poses.PUr" field that by che devise “to Catharine T give my ne~ gro girl, nam-orease^ex-*1' cepted, till after our death,” Dol-the widow for life, and ^Kne — Sid*1' thediiWof Dolly, bom before the ¿Cathfpasses, after the widow’sdcath,to siduar ^owa-" tee. y a " Construction disapproved, which would give the mother slave to one and her offspring immediately to another for life. Intention c( the testator at the date of. the will is 1hf object of -.-a-quiry which cannot depend on a subsequent eyent. It seems that the will speaks at its date, it may look tq and speak as upon a future state of case. Partus sequi-tur ventrem— one case in this court has given the re-mainderman the children of the mother held by another lor life, otherwise is the rule of beasts, Conclusion ¿feision^of the circuit, court, Tyo judges “tfng lvd~ not concur-tog,the de-circuit°couri: affirmed, Costs against an unsucooss-ftil plaintiff:' execution directed to b'e rendered de bonis testatio-ns.
22 Ky. 410Hammon v. Pearl (1828)
Chancery. Cross appeals from the Rockcastle Circuit; Joseph Eve, Judge. Executors. Sheriffs. County court. Wills. Jieeounts. Jurisdiction. Mandates. Practice.
22 Ky. 419Anderson v. Ward (1828)
Chancery. Error to the Bourbon Circuit; George Shannon, Judge. Jurisdiction. Cross bill. Appearance. Error. Practice.
22 Ky. 421Rogers v. Farrar (1828)
Declaration g^sandoth-!rs as executors and de-visees. Pleas; ver-antl ^ smen ' Instruction to d'® J’,ry .t0. ifthey11' believe the’ testimony. Verdict, At common Jaw, devisees of land were not subject to the actions of creditors. Statute ofW. & M. against fraudulent devises, gave the action against the heirs and devisees of lands jointly on all the specialties ■wherein the ancestor expressly bound his heirs. Act of >9?, gave the action against the heirs and devisees of lands jointly with the executors in all cases, where the executors were bound— But— This act of ’92, does not give an action against the legatees of chattel interests. Executors dr administrators are subject to the actions of creditors to the amount of the chattels. Devisee is one to whom real estate is devised. Legatee one to whom chattels are bequeathed. Since the act of1800, slaves devised, pass rs lands to the devisees, not through the executors, and the creditors may maintain their actions against them as against devisees of Sand. in an action against one ^omthe (ie° visc is contingent, the 1>|!ainti15 must s iew e con~ tingency had occurred,and the devise vested before the action was commenced. ^^, ia plaintifTin-troduced pa-ro1 evidence, to contingency liad happen-to maintain the action, he J;n' titled to the instructions of the court hypothecated pr0ved,abui not that the verdict ought .j. the jury be-hew the eH-*"ce’ Where due deviso to one tor life is on condition he elect to hold and he decline, and release to those in remainder, no action can be maintained against him on the contract of the testator under the statute.
22 Ky. 426Garner v. Crosswait (1828)
Where the ^Its'iMiis'1'1" answer the comp,lain-ant’s right to veTment'of d" his having been nnwil-it”without6 shewing the credit had shall nouüb-jeot complainant to tlie oosts'
22 Ky. 427Frankfort v. Churchill (1828)
Chancery Appeal from the Shelby Circuit; Henry Davidse, Judge. Contracts with corporations. Consideration. Stockholders. Conditions. Rescission oj contracts,
22 Ky. 430Beard v. Smith (1828)
Entries and compactwith írginia. Date of the bill by Beard and wife. Entry of Ar-thnvCamp-by complainant. Survey 8th February 1795. Patent. Defendant’s claim by elder grant. Defence of obiections to" complainant’s entry, and that it was forfeited and void under the compact. Call for a creek by a wrong name, Flat creek, instead of Yellow creek, whereby it was generally known, not fatal — other descriptions sufficiently pointing out the stream. Descriptions in an entry are not required to be the best, not misleading, . but certain to a common intent, is sufficient. Mistake in one part of an entry cor rected by another. Mistake in the name of a stream, not fatal. Affirmative and negative testimony. Aptness of the calls for the objects on the ground, held to establish and fix the entry. Mode of surveying the entry discuss, ed and settled in this opinion. Effect of the expressions in the entry ■ — “to begin at the said road, and extend up in the forks of said creek,” &c. Base line on the road. Expression “including tlie right hand fork for iield" toJre-quire the land to be eaual^uan-tity on each sido of the fori". objected that ant>°s°entry11* had been forfeited by the ha^eitsur veyc'd. Act of 1779. Duties of that act were precedent to those of the owners of the entries. No time was then limited to make the surveys. It seems all the surveyors omitted' to give the notices required, by the act. Act of ’84 requiring file entries to be surveyed within a limited time. Act of ’85, directing thij surveyor to give notice to the owners of entries when he would make the surveys. First act was to bo performed by the surveyor, according to the act of ’79, and in certain cases by the act of :85, and his neglect could not forfeit the entry. In the act of ’85 non-resident owners of entries were required to appoint agents to attend the surveyor, and the neglect to appoint declared a forfeiture. Resident of the county of the entry was not required to appoint an agent. Query, how the neglects of the owners of entries to appoint their agents or attend, to the surveyor’s notices, were to bo ascertained, or decided on,and how the entry declared foi feited. Act of 1786, giving farther time for the appointment of agents by the owners of entries. Act of 1788, giving farther time for owners of entries to appoint their agent,?, Act of Vir-S'ir|ia timcTfoMbe ° owners of en-bies Io c°m‘ e continued by tlie sntwo-<Fent act?> Act of Kentucky oi,£,^ extending^! time.’ Act of Dec. l”s p *' Act of 1785, extending the time for surveying entries and returning plats and certificates. Act of 1797, extending the time given by the former acts to execute, survey and return the certificates. Held the entry of Campbell, surveyed ir >1796, was not forfeited by any neglect touching the surveying,if, the statute be valid. Neglect to comply with the requisitions of the act of ’65, and the con? tinning acts, was a cause why the government might foifeit the entry, until after which no individual could acquire an interest. Definition of a forfeiture. Statute of 1785, ami the 'continuing acts, provid- . ir>g that for the neglect of the owner of the entry to appoint an a-genf, or attend the surveyor, when ■required by notice, the entry should becouie void, did not ipso facto make the entries void, but only gave the government the power to over them, to be enforced or renounced at pleasure. Distinction between the acts o°1784, requiring entries to and'the certificates returned in a of and the act of 1785, requiring the aPP°“ttnent of an agent, and the surveyor to be attended. At the date of the separa tion of Kentucky from Virginia, no forfeiture had been in fact incurred, and the now statute acquired all the power to forbear to impose the threatened forfeiture Virginia had possessed. Separation of ICentucky and constitu ¡ tion of it into an independent state and admission into the Federal union. Act of Virginia proposing the separation and now constituting the compact. Assent of Congress admitting Kentucky into the federal union, and the. government commenced Juno 1st, 1792. Powers and sow reignty of Kentucky Claims in f'0U'r°ve.fsy, fr°m Virginia, ° Oefendantin-s¡ssj^he Kentucky0 were inter-dicled N *he compact from enacting the' laws for pro-“J). veying. Third article, of tlie com~ security of private rights, rive(i from Virginia, Construction of the com- ' pact. Stipulation in the compact for the rights to land, iloes not bieílfrri»ht shalíbe^e-stroyed, that thereby the ise effect? Distinction Hcam” n*'3" vaüTrights! injustice of retrospective iaws' Operations of ^entma bear upon conflicting interests, but] insist on gov-eminent executing a pen-fpifu“e orchis adversary, that he may Profit- These words determined36-by the taws yiow existing laws in force at the date of the enaot" ment, 18th Dec. 1789, and not the laws winch Virginia might enact between that time and the separation. Clasification of the laws intended to ¡mmutabieby the compact —tbestipu-termination6" by the laws then existing, a?iucledtode-courts of justice in the tn.al °f th®se ^nd interests6 inland, Right of Kentucky to forfeit the lands, in which the private rights and interests are protected by the compact for neglect of cultivation or improvement .recognized in the compact. They were the laws under which the rights and interests in lands were acquired under Virginia and which defined the náture and extent of the interest, and. which are necessary to be considered, in adjudicating on such interests, are those made immutable by the compact. Powers of the government to waive or remit forfeit-uve and pon-fe¿tedbyatho compact. and"return of surveys, were antUhc^ro-iongations of the times fix-b°" that state as offensive to Acts of Virginia for expediting the private rights, “Now exist* ing,” in the 7th section of the compact, means existing at the date of the enactment by Virginia, December, 1789, and not at the consummation of ths compact, - Description of the laws rendered immutable by the compact. Defence of defendant, that the complainant’s ' valid and lawful claim liad not been forfeited by the government, that his illegal claim might be ■ made effectual. Compact with Virginia f’-'L11-?/ , tucky from1' elongating *he acts giv-t^me^for sar-veying entries, Cotempora-neous exposi tion of the compabt. Exposition of Die compact l>y the members of tito convention who adopted it, given in their enactment of the statute extending the time for surveying entries, at the next session, allowed effect in the construction of the instrument. Act of Vir-sinia, passed nftci°the rieo-pie of Kentucky had ratífietHhend compact in convention, owners of en tries the far-" iher time of Í aveth1-1910 surveys exe-rated. Act of Virginia, at the same session, allowing farther time to return plats and certificates of sur? rey. Farther tipis turulata" and certifi-catcs by the aot of ’91‘ Act of Kentucky of >92, and after-wards continuing the time for returning plats and certificates of sur- Early expositions by the Legislatures of Virginia and Kentucky, proof of the intention of the com-, pact. Judicial decisions in favor of the power of Kentucky to extend the time for owners of entries to have them súrvej ed. Kennedy vs. Bruce, 2 Bibb 371. Kendall vs. Slaughter, 1 Mar. 378: touching the 3rd article of the compact. Shipp vs. Miller: Supreme Court United States, 2 Wheaton 324-5, decided on the act of Ky. of 1797. Miller’s heirs vs Mclntire, Supreme Court United States, XI Wheaton 442, decided on the construction of the acts of 1785, and acts elongating that act, and of the compact with Virginia. Hoy’s heirs vs. McMur-ray, 1 Litteli. 367, against the validity of the acts extending the time for executing the surveys, reconsidered and not law. Summary of the argument and authority in support of the validity of the acts of Kentucky extending the time allowed for executing surveys and returning the plats and certificates. O'onseqnen-'ces of the construction of the com-^ate ti,e a‘ot¡T Cause and P“rP“e of intCrpreta°tion.1 ' Rules of interpretation. —Words are to bfe understood according to their propriety. Rules of interpretation applicable to the compact ■with Virginia. Application; of the rules " of interpreta» tion to the questions on the compact. Absurd consequences of the constructions of the compact which would make invalid the acts in question. Objects of the compact yrith Virginia. Political doctrine recognized at the adoption of the compact by'the parties to the instrument. Extract from the declaration of independence. Declaration, of Virginia |>er ng 1 s‘ power an(j liberty of the. government not thereby affecting pri-interests by vetrone- ’ tj'on. Extremes,'1 of denuding the state, and impairing its essential powers, and tolerating retrospective laws destroying private rights and interests in lands derived from Virginia, to be a-voidod. Enumera tion of the effects of <a liberal interpretation of the clause in the compact, requiring; the private rights and interests m lands derived from Virginia, to be decided by the laws then in force, and the denial of the power of the government to alter the laws. Definition of the laws in f°rce in Vir-d'ateofrihe0 enactment of tlle statute the com^-ici; intended to be embraced t^ee *“se pact «and" shall be tie-grained by existingSjn°W this state.” ■Extrae (s from the act of 1779, constituting the substratum of the land law f Virginia. Object of tlie parties in using the terms “now in force in this state” was to exclude all claims to land, not sanctioned-by the act of 1779, and subsequent laws. Object was •not to em-descents'”"1 wills, of alienation, nor -rU' Consequences which fol-eralcoLtruction of the compact denourme^he acts extend-mg the time e™tl.s”veyins en nes' ^ovetheex-tent of th(T consequences be embraced the con-siruciion a-valkliV*'of the acts extending the t¡me for exe_ cuting str-veJ3- Laws and claims to land intended to be excluded by the clause “laws now existing in this state.” Argument on the context of the clause. Consistency of the construction in favor of the validity of the acts. Acts of Virginia of 1785, and of ’88, proposing terms of separation, both contained the provision for the determination of the rights and interests in lands derived from Virginia, by the laws now existing in that state: arguments on that fact, Effect of the words remain secure. The question, is a right or interest in land valid against the state! shall be determined by the laws in force in 1798, Whether the claimant is entitled to the right or interest thus derived from the stale, may be determined by laws repealed prior to ’98, or subsequently én-.acted. In what the security or rights and interests in -land consist. Principle of t!le statutes yons^nd" bars and presumptions by laPS0 oftira<r' Laws ofJimi-tiiüons and proscription, foundeirin the law of nature, ami recognized by national law. Necessity of limitations of bars°ofctoims by lapse of hme, concur-^'lions^ 1 Law of nature fixes no precise time when claims must be assorted ; that is in the discretion of the legislative authority of of each state. Principles on which the legislative authority establishes the ccrtam.peri-ods of limitation and prescription. Periods of limitation different ¿ov g-rmnonts in different cases‘ Statutes of limitation may be retrospective, and by which they may bo justified. Where the ■ statute is retrospective, and where not. Security of the private rights and interests in lands, provided for in the compact, was stipulated for, under the laws of Kentucky, and not the laws of Virginia, to be perpetuated hero. Description of the laws of 1789, by ■ which the rights and interests of land, derived from Virgin^, ia, shall be determined, not embracing laws of limitation nor other such statutes. Government has necessarily the power of appropriating private property to public purposes against the will of the owner— making just compensation therefor. Definition oí the powers of government and of the right of eminent do* main. Abuse legislative powers may be subject to, no argument a-gaiust their necessary existence. Summary and conclusion of the argument on the construction of the compact. Not the intention of Virginia to fix. on Kentucky injurious laws, nor to deprive her of necessary powers Bowers of the legislature, to alter and repeal laws. Complainant' must iecover on the va-lidityande-llis own ^au- the legal ti-tie, may hayo aretÍea etUd--versary claims. whatmust be shewn by one seeking the^elde™8* grant, statement of the oase- Dates of the complainant’s entry, survey and grant. Defendant’s claim stated. Objected that complainant’s entry had been forfeited. Statutes of Kentucky, granting extensions of ' the time for surveying entries, alleged to be against the compact with Virginia. Act of ’85 le't the Surveyor to elect i,is own time to give the owners °-f en~ aUewHo06*° have them surveyed: Until notice. no e»try PouW Pe lost ynesec' Act of >85 required the °X”clns0°f e“" dent’in°theS1' county, to appoint ana-¿¡eive theSur-veyor’s no-tioe>antl give the Surveyor information * ere0 * Extens;on of the time allowed for the appointment of agents. lmking°sur-voys. Extension of mnJún^the surveys did not prolong tlie tim° for annoumn<r gents; but when the agent was not appointed prior to Jan. ’96, the entry was forfeited. "Where the snrvoj is dated prior to Sept. ’98 (the time allowed for making surveys generally,) the complainant’s bill need not allege the facts shewing the right to survey the entry: otherwise when the surveys was made af-wards. Survey made between 1st Jan. ’96 and Sept. ’98 shall be presumed to have been lawfully made, unless the adversary party allege and show the entry forfeited. Appointment of an agent in the county, will be presumed. Question of the consistency with the compact of the statutes of Kentucky, extending the time allowed by Virginia, for making the surveys on entries, stated. soidcd in by’s heirs M’Murray, it alter-areis the onion with-awn, and estion left idetermin- To raise the question of the validity of the statutes, the parly asserting it, must shew an interest in the land at the date of the compact or at the separation. One claiming under a survey made on an invalid entry, or one not embracing the ground and a grant from Kentucky, has no “right nor interest” secured by the compact; —Survey is' no appropriation of the land» Question, of the validity of the Acts, undecided. Dissent from the view taken by the Chief Justice, and reasons for stating the difference. Doctrine of Hoy’s heirs and M’Murray would not render the Acts, extending the time for surveying entries, null, but leaves the Acts valid in all respects, except where the survey thus made, interferes with before-existing rights or interests, held under the laws of Virginia. Effect of the statutes, unrestrained by the compact, on the litigation of land titles and the peace of the occupants. Objectsin tlie enactment of the statutes. Question on the compact stated. Equity wilt not enforce a forfeiture, nor enforce a foifeited ' claim, against a legaj estate. ■Cases of en- - tries defeated, because not'surveyed in time, and thus land controversies settled. Effect of protecting tnc rights and interests in land at the separation, from the claim founded on surveys made under -the Acts of Kentucky, extending the time for surveying entries. “Laws now existing in this state” in the 7th section of the compact with' Virginia, means the laws in forest-when Kentucky became a state, not the laws.in force at the date ofr the enactment of the proposition by Virginia. Held, Bie Jaws of— Fbrfeitnre for non-improve-raent, Revenue Jaws, Subjecting lands to payment of debts, Descents, Wills, Conveyances, Trespass, Frauds, Joint tenancy-Survivorship, booking entails, Limitations— nor our Occupant laws — are not ^jeventh section of the compact, seventh see-tiori of the compact em-theTtatutes of Virginia,in which o-nSinaJecli regulated, the compie-theTtauTas grantor, and corporations aís^tís her”" grantees— The statutes saf^y^aro here includ* eiU Thp Federal Court lias included in the 7th section of the compact, the occupant and other laws of Kentucky, regulating only the remedy and fixing' merely the incidents of the right to land; this court excludes those laws. Query— Whether the loss of an entry, by the ’ neglect to survey it in time, is a technical forfeiture, or but a failure to obtain by non-performance of a condition. Evil consequences of maintaining the statutes of Kentucky extending the time for surveying entries against claims, o-tkenvise valid. Question of ió validity utes'feft'uñ-decided. -The Entry-Call for Yel-th'e name of^ Flat creek not fatal.. Upper trace described yin the entry. Calls of the entl> Jucl8'c ^yingthe1* entry? -The two Judges silting in the cause, differing in-the mode of laying down the entry, and the circuit court having decided a-gainstit entirely, decree in favour of the owner of the entry, for the land common to the two inodes of surveying, and mandato accordingly.
22 Ky. 523Robertson v. Barbour (1828)
Case of a con» troversy between the heirs and dev-isees of Lieut-Robertson, of the Illinois .Regiment, for his proportion of the grant. Question stated. After acquired lands were not devisa-ble in 1780 — . the power was given by statute, Jan. 1st, 1787— 3 Moil. 336. Extract from the resolution of Virginia, for ceding the N. W. territory to tlie.TJ. States, but reserving a tract of laud for Clarke’s regiment. Interest of Ijt. ■Robertson in the Illinois grant v as devisa-ble by his will, dated after the regiment had reduced the British posts, the service for which the land had been previously promised, and was afterwards a-ranted. Proofs of the will. Proofs of the execution of ¡naSpanish province, ac-cordingtotbe country, not couformable to the laws of notSsuflSo¡e.nt to pass lands then situate m Virginia. Wills to pass au(hentical-ed according to the laws of ^here the^ land lies. proof 0r the ,will in Uli-nois, in the ^bracini^ the land.0 Objections io tlie Pr°of 0 ie W1 ' Probate ofa dato4 Natchez granted by the proper ciarke^ounty, Illinois, on the pre-sentatiPn of the devisee and contes-tation of the heirs, is eon-elusive, in any controversy in Kentucky, between the heirs and de-visee, concerning the lands in the county of ’CJarkc,
22 Ky. 531Rankin's heirs v. Rankin's executors (1828)
khPmade11* between his. suffering the judgment of death, for ™u«ler, and provídana”’ admitted to record by the 00urt* Appealby ]iie the testator». Objected against the testament, that the testator having received judgment of death .for felony, .was tie mliler nw r. titus. Cases of 'civil death by the English i&w.. Diversity between the ef; foots of conviction for tfoason, felony &c. and an entry into religion. Person.at-tainted of felony might be sued, One attain-ted of felony Could not sue in that state, but if pardoned might have his action for injuries suffered whilst under the disability. jn England no felon convicted could aftenudg1-* ment, be-causo, by the ^ forfeited and his capacity |°s^cquire where tiie accused died st00[[ n’mtre there was no lament was valid, wills of traitors, aliens', felons and the wete valid except a-sainst the klBS‘ Whether the will of the convicted felon in Kentucky be'valid or no-, depends on whether all his estate be forfeited or not. No statute in Virginia concerning forfeitures. Act of Kentucky of ’06 in relation to forfeitures for crimes. Act of 1796 transfers al5 f07foifurethc commonwealth had i^mecHa tel v-’ to the rcp-resentatives °[cth¡^case 0f intestacy, No new fbr-ieiturp was created by this act of ’% Forfeiture of the estate of persons at-tainted of crime, is limited by the constitution, in duration to the lifetime of the offender. The. remainder of the estate or.balance of the fee, after deducting the estate for the felon’s life, remained at his disposal. This residue of the estate in convicts property, nf-ter deducting this estate for his life, disposed of by the law, is devisable by the last will t and testament of the felon, made at any time before his execution.— —Therefore, the will is established— Chief Justice Bibb dissenting.
22 Ky. 537Feemster v. Anderson (1828)
Condition of the appeal bond in question. Judgment of the circuit court dismissing the ap ■ peal for supposed insufficiency of the bond. 'Question stated. Act allowing appeals to the circait court, and prescribing the conditions of the bond. Absurd effect of pursuing the letter of the statute. Another case of the absurd consequences of the literal, purport of the act. If the appellant. succoeil in the circuit court, in reducing the judgment rendered against him by the justice, he is not cast, nor is the judgment affirmed, in the meaning of the statute, and so the condition of the appeal bond prescribed by the statute is iiot broken. Condition of the appeal bond, that m case of the judgment of the justices feeing confirmed, or the appeal being dismissed, then &c. is substantially conformable to the statute.
22 Ky. 541Butler v. Suddeth (1828)
Declaration by assignee against assignor. Parol evidence to prove a note assigned in the usual form was without recourse, offered and rejected. Where obli-gee passes a note without assignment, and the purchaser passes it in like manner to another who obtains ob-ligee to make an assignment in the common form, the presumption is, there is no liability. It may he proved by pa-rol, notwithstanding the writ{en ag_ sigumcnt of a note the th™’ transfer was without recourse. assignor the costs expend-in obligor to fn-solvencj— but not the edV/hinT6*" the assignee, W as-had^urTued the obligor, antl then re-ymaud"1 - covered a " judgment witil costSi He ought to have paid suit, Each as-signee recovers of his assignor according to the consideration he paid. •
22 Ky. 545Brashear v. Kendall (1828)
statement of the case- Covenant to Pay $210 “ir* goliat iTs^" value in commonwealth’a ^aiano^if any, to be discharged in health’s paper,” is not a contract for *ygaíyJ?gmon” bank notes. within the statute, and "therefore must be scaled.
22 Ky. 546Grimes v. Shrieve (1828)
Chancery Appeal from the Fayette Circuit: Jesse Bledsoe, Judge. Usury. Leases. Rents. Parol contracts for Land. Improvements.
22 Ky. 559Thompson v. Bell (1828)
Declaration in detinue for a horse. Plea, non detmet. Verdict for plaintiff, but judgment arrested. issuing tho writ, not the filing tho declaration, is the commencement of the action. If a declaration be filed in February, stating a cause of action in No?-vember following, and the writ be issued in December of the same year, and verdict be afterwards rendered for plaintiff on the general issue,.all is well.
22 Ky. 561Graham's heirs v. Graham (1828)
Bl11" Billofinterv pleader, Claim by the one heir of demined against oh the evidence, ■Decree. Mode of assigning ciow- ■ er, making partition between the parceners. 'Rents to be ■ accounted for by the parcener who had claimed and occupied the entire tract, after the date to which he had been made account for them, as the administrator. 'Widow is entitled to the ■rents of the whole mansion farm of her husband, "till the assignment of dower. One co-tenant, occupying in-sever-alty, shall account to the the others for rents on the improye-¿ng wj,en enttred‘ Ontheim-provements made by the co-tenant he ¿ce of the rents, after d“\Rcti?s ,vhichPprice shall not be allowed to ®“tesedn¿ee improvis-ments themselves.
22 Ky. 563Harris v. Amos (1828)
Case stated, Allegations of Harris’ bill. Answer of J. B. Amos. H*>to secure by R^A agreed with ’ to become m" owed r. a.; after tA-obligation to J. B. A.-, held jhat H- may payThe & debt on M.to J- A- and against it* his demand against R. A, . b®inSthus M’Tdebttoxi B. A.,,gave bis obligation g° A promising if ’ be purchased r a be would pay H. his claim onR. A.-.held this agree-dümpactuml and ineffectual.
22 Ky. 567Edwards v. Coleman (1828)
Agreement between John Edwards and Coleman. Verlner’s bill dismissed. John Edwards discharged under the F ed-eral bankrupt laws. Cases ofscire facias. Edwards’ bill aSainst m<in' Coleman’s answer' Case stateil, as made by and Ijiroofs.1°S Remedy of tia! fincTai H»pineip.,. Agrocmont Edwml/iind Coleman not h. defence to the sare fa-ihebinl'X mosEdwat-Js. An agreement between principal creditor jn a judgment, in con-slclera,tion ot ment, aricfthe dismissal of a writ of cr-persedeas11' then pending, that the bal-lince of the judgment, af- and discounts, would be re-commodities after the de-’ termination .oi'.ce!'!:am notice1 o” am three months. is„a release of the bail in equity, Rule given and cases ci" íeaso^f’suíety by the a-greemenis of ^“to/and creditor in law and e-q-uity- It is no objection against the release of the bail or other surety, that he is ix subscribing witness to the new agreement relied on as the no-vation. To prevent the surety duchar1-^ bv the novation with the pm-theeurety6!? not sufficient, he must consent to re-' main bound. Surety discharged. Decree and mandate,
22 Ky. 577Dehart v. Wilson (1828)
Order for injunction by the circuit judge. Injunction bond, with ■its condition. Decree dis-Inissinfr the bill. Action at law oil the injunction bond. Power of attorney given by Berthoud, to execute the injunction as Surety- Effect of the letter of attorney. Letter of attorney to execute an injunction bond, according to a certain order of the judge, ■¡which directs the condition to bé according to law, £ does not authorize a bond, to secure the damages that may.be awarded pn the dissolution of the injunction, for so is ■not the statute. Such a bond., embracing the damages, made under such a power, does not bind the principal to any extent. Where tho a“ry°”^rISjf attorney vary, except cncumstan-isvíld, °' Action against two, “¡Jai-geA ncnesl fac-{um, and Jj!d£i13e!,t dl gainst the other,
22 Ky. 582Hickman v. Holliday (1828)
Chamcery. Error to the Fayette Circuit; Jesse Bledsoe, Judge. Devises. Codicils'. ¡Surplus land.
22 Ky. 592Shehan's heirs v. Barnett's heirs (1828)
Debt. Appeal from the Grayson Circuit; Paul I. Booker, Judge. Interpleaders. Resscision of contracts. Demurrer. Private Statutes for sales of infants land. Constitutional law.
22 Ky. 596Williamson's admx. v. Richardsons (1828)
Covenaht. Appeal from the Fayette Circuit; JbsSjs Bledsoe, Judge. Pleading. Practice, Maintenance. Executors. Rents„ Reversion. Mortgages, Deeds of trust. Surrenders. Conveyances. Error,
22 Ky. 607Barnett v. Emmerson (1828)
chakceby. "Appeal from the Green Circuit; Benj. Monroe, Judge. Bar by lapse of time.
22 Ky. 609Morford v. Mastin (1828)
buildahbus 0f a certain^ description, taker* for thi?' .price, Peolaration. Plea by defendant, denying the performance of the work according to the covenant. Evidence conducing to prove the work was not well done according to the agreement. Instruction of the circuit court. Verdict and judgment for plaintiff, and appeal. Conditions-precedent and concurrent and dependent covenants. In tlio construction of covenants the enquiry is for the intention. Ryle iis tq conditions' precedent. Whpre the bulk"ahouse in a plain, strong, work-hTnrf.r'2 a Condition18 & precedent to the covenant Irficefail-fare to exc-cute a small part of the work in the manner stipulated, when she whole had bi en performed, and the greater part according to the contract, de-' stroys forever the action on the covenant. Same rule in parol contracts. In contracts for work in moveable articles, as furniture, pictures and the like, the acceptance of the article is a waiver of objections to the quality of the woflt-manship, and the price must be paid. Contracts for the building 0f houses aIKj tho like, ^,°be conmimme-" dintely part of the realty, buildings do*5 not nucossa* ril>' amount to thV qnality of tho worj£- In covenant ior thc Price building,nffa plaintiff fail to Proye the of tte^vork according to contract, codent Phe cannot recover tiie quantum ^ataction ‘ ac I0n' In a contract to PPJ fop the house1,13 when completed, am?ns othor tainSva]uoof" merchandise, at a certain store, ii is not necessary for the undertaker to give notice of the completion of'the. house, nor to demand the goods. The employer mast take n -tice of the event, and shew himself ready, at the time and place, to deliver the goods.
22 Ky. 616Lampton v. Lampton's ex'ors (1828)
Debt against the executor, on a promissory note of the intestate. Snecial niea and issue. One of the ottered "as a witness for defendants, ancHho question now is on bis‘c°n>-PetencJr- Executor for-™eiNenti-resiliinm^af-ter the lega-ciesi but is ecTto^íistrifa1' utethe’sur-" plus. Executor was formerly ]ia-if were deficient, not so now" No party to an action at oan be a witness. ^“S0T1a°^’ie tiie competency of the testimony of a party in an faw^s'bis ínterestinthe matter. Defendant in an execution to'prove the property seized is not his, ertyofa third person claiming it. An executor cannot be a witness in an action against him as such,-because in a subsequent action against him for a devas-tavit, the verdict and judgment against him as executor, would be evidence to charge him personally. Uncertainty of such sub-quent suit,-is immaterial. Residuary fegalee not competent for the executor tho’ it appear, there can be no residium. Question of assets or not, how determined. Answer of an executor to the bill of a distributee, so far as it contains new affirmative matter, is not evidence for him. Executor is not a competent witness against either the legatees or creditors, to disprove their claims. Query, of executors competency, in an action by him as executor. Judgment for new trial.
22 Ky. 621Brown v. Commonwealth (1828)
Debt. Appeal from the Floyd Circuit; S. W. Robbins, Judge. Sheriffs. Escapes. Declaration. Judgments. Amendments. Practice in this court. Mandates.
22 Ky. 624Stith v. Hart's heirs (1828)
Plaintiffs grant from ' Kentucky. Defendants shewed an elder grant. Plaintiffs evidence to prove the title under the elder grant relinquished to the state" Defendants under Kranet_ er Instruction for plaintiff, Defendants potion for ve ■u e Judgment of the circuit pontiff on* the question of law re-:<ierved- Question stated. ^uthorizJn4’ the rc)in-'° quishment of lan(1 t0 t*>e surveyor’s 6 office! AotofiSOi, authorizing q^men't in the register’s office, Virginia had not . fonds^but Kentucky ente-edor surveyed. Relinquishment of lands to the stale by the owner of the superi- or claifn, does not operate . as an extin-guishment to the benefit of an inferior claim, but the act passes the superi- or t’tle to the government. Grant of the state °f a. juu] escheat-ed to the government heirs') ovor-reaches a mesne grant Lands es-re‘ ¿rieitetUo °r the state, are pot embraced ^ authorising’ th? appiypri-vacan tía ml* • J — —and Grants obtained for such lands, under Iho general laws are void. Cases hereto-foreadjudg-con‘ cJusive— — JudgeOws-ley dissent-inS' No lands ^"«Is rc-ac-quired by the state,are sub-under the general laws, Judgment fe mandate,
22 Ky. 632Groves v. Kennon (1828)
Statement of the recovery of the judg-meat at law. Bill for injunction and for distribution. Answer of Groves, insisting on tlje residuary legatee’s accounting for property in' his possession, claimed by the testator in the devise, as a part of the residium, as a condition to his claim under the will. Thomas 3?e*r iy’s will. Gift of the wiftfoGKon-non, from her father, Thos. Berry, pre-íh™circmn-stances and lapse of time Sorry devised the offspring of this I» w acquiesce or abandon all thejvin?ler Decree of the circuit court. No one shall hold property against the devises in a will, and take under the will, but shall elect. Where the legatee whose property had been claimed by the testator and bequeathed in his will, had sold the property between the making of the will and testator’s death, not knowing of the will, he for buttbfe*"'” value of ‘the property, '. Ihe'coniliti^ oAis0 claim" under the' ' An emand-jAttecí slay'e directed to be excluded from the account.
22 Ky. 637Conley's heirs v. Boyle's executors (1828)
Judgment at law, on the bond, for the conveyance of the land, and satisfaction thereof, as alleged. Bill by Boyle, one of the vendor’s safeties in the bond to sub- . ject the land, to reimburse him the damages he had paid obligee, recovered at laiv. Revivor. Decree of the circuit court. "Where the heirs are not expressly bound by the Covenant of their ancestor, the personal representatives must be sued with them, to recover money. Where the decree rendered for the complainant, is reversed for the want of proper parties, if the bill have equity on its face, there will be leave given to make the necessary parties — otherwise not. Sm-et» who discharges the demand, may maintain his bili against the executor and hi-irs, io subject, first the personally and then the real estate to his claim.
22 Ky. 641Harris v. Wood (1828)
motion, Appeal from the Hart Circuit; Benjamin Monroe, Judge. Public buildings. Towns. Constitutional law. Trial by jury. Revenue. Witness.
22 Ky. 644Clay v. Johnson (1828)
Petition and •.-summons. Plea to the tionláera" Evidence of tiss of the auranee com-purchase Qf'S Clay’s stock, j0lmson &c. the sureties, Original note the stock01 Explosion of Pflntisíand h, exit Clay’s suit on the original note, accommodated. Note sued on. ^irst su¡t discontinued, Motion for ants evidence was insufficient — over-ru ef ’ Where the defendant relies on an affirmative plea, after he has closed his evidence, the plaintiff may movathe court to instruct the jury that the plea is not supported, which shall be decided as in case of a motion by plaintiff for a nonsuit. Objection to the consideration of tho original note, and instruction of the circuit court on that point. :\oto given by Prentiss and his sureties to Clay, lor the price of stock in tho Ky. Insurance company, which Prentiss had obtained tho management of, and by his wrongs, ren-,deved worthless, with a 'full knowl* ec|ge of these !aots, wason 'Nticicnt cor>to both min3 cipal and' ’ sureties, Objected, that the note stead of that on which the appellees CTsreafter°rS" Ciay’s negligence in suitagainst Prentiss,1 was without sufficient consid- wbaNs're^ quirecToFan assignee, when the ob-senTfrom the state before the note fells ‘k®* Compromise not decided on- where the obligor had, befor® *]>e ]0ft tj,e state leaving: his property covered by conveyances, in irustj for other creditors, which is all immediately seized and sold, and under circum-átandes, rendering it improbable he Will over return — held no suit is necessary -to charge the assignor. Casos of assignor and as-signee,- and what required to charge the assignor: i'evieived. If the debtor1 at the time of the assignment is a known resident of the slate and apparently solvent, but before the note falls due, fails and sells off his estate and flees from the country, it is not necessary to sue to charge assignor. Where penfl-ing the action by as-signee against assignor the 'parties agree, and the defendant gives his notes for the amount, payable on a .credit by in-stalments, with security, and the suit is dismissed, the caso is compromised and there bring .no fraud nor mistake, the liability of assignee on his “ssl_Sn~ enquired into, Effect of set-dements and oomProiluse3- The two Judges set-tin!; in the case not concurring- as to the law of one decision given on the trial below, no mandate on that point.— But— The Judges concurring in opinion that ti on on'another point ■was en-otic-mont ed for that cause and new trial a-ivardcd. Statement, Question, on ?vh,ich *jle agree! lS* ^icfonce?3 motionTfor instiuctions as in case thaTaffirma-' tive pleas are not main-taine“" "Statement of the original •transaction. First note Sivei) f°rthe stock™06 Prentiss’ circumstances s departure from the country, Novation " a.nd exeou“ note'sued up, m. ' Held the evidence conduced to prove the supposed liabilN ty as endorsers on the first note, was the only consideration for that sued on. ifeithcr for-behrance to sue on an unjust demand, nor giving timo for payment of it, is a valid consideration. Pomises by executor or heir to pay the debt of the docedant where they have no assets will not support an action. Femes covert — duress &c. Promise of assignor to pay assignee when not ha-ble, is bu* nudum pac-tum. At cómmon law, the consideration of unsealed writings required as in case of parol promises. The statute made the unsealed writings evidence of the consideration as in case of deeds.— But, a prior statute had allowed the consideration 6f all obligations by deed to be assailed by plea, and its insufficiency proved by defendant in bar of the action. Plea, that the obligation sued on was not given for any good or valuable consideration, without detailing the facts} is good. Bond giveii by an endorser of a bill of exchange, when not liable, may be avoided by a plea impeaching the consideration. field, contra to Judge Mills, the endorsers on Prentiss’ original note were discharged by Clay’s lack Held in concurrence with Judge Mills, that the original note for the price of the Insurance stock, was on sufficient consideration. Where the principal party gives security, in the form of endorsers or assignors of his note, to the person to be secured in the payment, the assignors are bound on condition of due diligence, as assignors are in real transactions, and not oth erwise. Diligence required by as-signee in prosecuting suit against debtor to charge the assignor. If at the time the note is assigned the tjebtor resides in the state, but removes b,efpre it falls due, the assignor may be charged without suit against debt- ■or. But, a temporary absence 01' the debtor will not excuse the institution of a suit to the first term, as in other oases. Wherever a suit may be prosecuted, dence oTdue di'igenoe by suit, and of debtor’s m-indispensable to charge the assignor. Temporary thiTdebtor from the state does not ex-Sgnee from” the institution of suit. Removal af-tct the as«. signment and before payday, may. Removal before assignment will not. The evidence C°o're the ab-fence of Pren-tuswastom porary, and vap iury decides of evidenof and between conflicting evidence.
22 Ky. 669Sibert v. Kelly (1828)
fof'the^pur-chase of the landbyKel- ^ 25th of February. Sibert’s bond for the conveyance, of 18th March. Kelly’s bill for specific performance of the contract, rents, &c. Sibert’s answer. Kelly’s admission on ®lbert’s in_ Decree of the circuit court Suit having been groundless and vexatious on the part of Kelly, he was entitled to no relief but what Sibert offered, and for that he must pay all the costs in both courts. Accounts must be made up in United* States currency, and' not bank paper, where-ever the case is not within the statute for the specific recovery of bank paper. Where the purchaser comes for specific performance, he must pay the whole pur-' chase money. Matters of payments and credits settled. Held, on the words of the agreement, the pri'-e of the land, except the first payment, was specie. Matters of credit and interest. Rents allowed the purchaser, in decreeing to him a specific execution of the contract. Commissioner to be appointed, inter alia, to ascertain the value of the bank paper. Where the alienee of land, having failed to have his deed recorded,brings his bill for a conveyance to be registered, here, against the alienor’s dev-isees, he must pay Mr own costs of the suit. Mandate.