23 Ky.

Volume 23 — Kentucky Reports

143 opinions

23 Ky. 1Hopkins' adm'r v. Morgan (1828)
Debt.. Case 1 Eiror to the Muhlenburgh Circuit; Alney’ M’Lean, Judjge.
23 Ky. 6Grayson v. Lilly (1828)
Chancery Case 3. Appeal from the Jefferson Circuit; John P. Oldham, Judge.
23 Ky. 19Morrison's ex'or v. Rodes (1828)
Mono#. Case 3. Error to the Fayette Circuit; Jesse Bledsoe, Judge.
23 Ky. 22Sharp v. Trustees of Lexington (1828)
 Village settlers. Minors. Statutes. Trustees of towns'. Sharp’s bill against the Trustees of Lexington to recover two lots, on the claim of an original settler in the town. Answer of ths TrMtees‘ Bill dismissed by the circuit' court. . an™anTnfant whilstresidentin Lexin8ton- Heu agreement between the tkreof1 Lexington, did not embrace tim families of their parents', Actof 1779. allowing villago rights. Act of 1782 granting the land in Lexington to Tru=terstobc appropriated Becoming to thi' original agreement between the settlers. ■Minors in the families of their fathers not entitled under the act of ’82 to the settlement rights to lots inLexington; only such persons as were able to eonlractwore entitled. Nor were mi”orsi"tho the villagers entitled to the 400 acres andYooOacre pre-emption in the coun- The order made by the trustees, assigning to Sharp as a settlor an in lot of the town,was not conclusive, against them, but they had power to sot it aside and refuse a conveyance, on the ground ho had no right at first.
23 Ky. 26Bowlin v. Pollock (1828)
Chancera. Case 6. Error to the Eayette Circuit; .Jesse Blebsoe, Judge.
23 Ky. 50Stephenson's adm'r v. Barnett (1828)
 Constitutional law. Obligation of Contracts. 'Case stated. Acts allowing a replevin of two years unconstitutional as to contracts made before the enactment, according; to Lapsley and Brashcar, & Blair and Williams. Chief Justice dissenting.
23 Ky. 51Snoddy v. Maupin (1828)
 Judgments. Jfzd teil record,.. Variance. Practice. Costs. . ju”fment, appeal to this court, judg^^ntirrmñdate entered-below,and costs‘ Pff3* °.n recovered."8 count, Abatementacto Smith by’sre' Judgment on plea ofnul till record for defendant. After the affirmance here of a judgment of tlje circuit p uirt, and entry of it below, and judgment for costs, plaintiff may maintain debt on the original judgment. 33rror of the Clerk in the taxation of the costs in such acliod is not available on the trial of the pleaofíiKteti record. ‘ ' Such error may be shewn to be recover-eel in tho Retl0n-
23 Ky. 53Bush's adm'x v. Bush (1828)
 Pleading. Usury. It does not necessarily promkory*’ a note, with an underwritten by payor to “pay fifteen per dent on the above till paid” was given for an usurious loan. —Hence a demurrer to a doclation on such an instrument with the underwriting taken as part thereof, will not avail. Tbe usury must be pleaded.
23 Ky. 54Sanders' heirs v. Morrison's ex'ors (1828)
 Parlies in chancery. Practice in this court. Trusts. Jus accrescendi. Executors. Decree of the circuit court. Morrison’s derivation of title objected to by San ders. Question on the title waived, because 'the necessary parties are not before tho court. Will of Goo, Nicholas. Where land is devised in trusty to two executors, saying nothing of survivor on the death of one of the executors, a moity passes to his heirs or devisees. Triist estates -pass as others, unless it Is otherwise provided by the Will, or other instmmentof con* veyazifce. 't’he jit? acerescendi is destroyed by the Statute in trust estates, as well as all others. ' Reversal, and order for proper parties,or bill to be dismissed. petition for a re-hearing, Petition for a re-hearing. Petition for a rehearing.
23 Ky. 59South's heirs v. Thomas' heirs (1828)
 Practice. Affidavits. New trials. Surprise. Sunday. Witnesses. Statutes of limitation to entries on land. Devises. Descents. Exceptions. Infancy Judicial decisions. , , mentin ejectment,for Thomas’ heirs against °u fl‘ new trial on ruled and?appeal. Whero a suit, iiumbeáaisSt managed by one, which is the better fidavitoffacts and of surprise, on a motion for a new trial, is sufficient ■without the others. Surprise by death of witness, absence conscience of being summoned as a o7hcr court”" ítqulreíio^ travel on Sunday- Affidavit fora new trial, becauso o{ tlie the party and his witness, roust state the would prove. Limitation of 20 years, Pn thecast^on minors1 of land in the adversary others^the° limitation of 20 years eeases running; against them, and they have the benefit of the exception Cases adj udged by this court, have settled the law, whether right or wrong at first. It is not so importantthe law should bo .rightly settled as that it should remain stable ^^ritisset' an([ the legislature in thejasfruetíonofa siatute, evidence of the correctness of Where there than one, and part only are abilitíes^the" statute of 20 years runs agamstand hnrs nil. Where the statute commence runingit continues to run against the devisees or other alienees under any of the disabilities. One disability cannot bo added to another, in any case. Where an adverse possession is taken of lands in thelifotimeof the owner, and on his death the title descends on his heirs all within disabilities, the limitation ceases to run against them. In such cases, the infants shall have the time allowed by the statute after they all .attain full age. —y---— Bl'llisll .stattationof five years, m relation t0 oer- - tain fines of lRRd. Decided on this statute of ^Tdescent of the title on' an infant tí/runing of the statute, s*a‘ ■ James i Ch. 16, of twenty years limita•oiiland"tn6S aít*thatthlS when once the statute com-to™ not with standing” " descent of the title on an tinued to run" ’ tVutr!ofatwenty years, not adjudicated uP°n as to this question,. Kentackvof the 20 years. limitation, —Proviso to tlie statut0‘ Diversity beand21 James l, and ^96,limUino-the right of j3nt*T !,}to of^iescent^n infant heirs.- If the ancestor, against whom the adversary possession was taken, dies within age, tlic disability of his heirsfof all of them) on whom the right descends, avail? them nothing: otherwise where the ancestor was of full age. Statute of Kentucky paramount to to the British and other judicial decisions on these acts. iiiiversity between the judicial decision of Kentucky and England on the statute of frauds and perjuries, and limitation of actions on contracts, Precedents in this court ofSref*®r . the British decisions, Casos of Machir <fec.vs May &c. and Sentney vs. Overton, deciding that the casting a descent of a right of entry on infant heirs, stops the running of the statutes dissented from. Opinion that “the altering settled rules concerning property, is the most dangerous way of removing land marks,” Concurred in. Principles the Statutes of limitation. ¡s an estah-. lished rulein. the construcB°¡ti°hStatutes of limitation, that gUntorun,it continues to nmnotwithsubsequent" disability, CaseofStowe vs' ouc'' . .. thetíme of the statute of limitation of feT fine^with proclamation is not inter-death^/th!;6 disseizee and descent cast heir”ia>ant Statute 4 chen24.VI1’ c ' Argument on the part of Stowell, that he was within the exception. 1st Ground. , „ , , ¿n íoun . 3rd Ground, 4th Ground*, 5th Ground, 6th. Equity of tl‘f statute relied on against the bar‘ Resolutions of the Court, ^n^oMhe limitation. ° 2ii Resolution 3d Resolution 4th. Rosolution, that the time 01 ilie --- not1s^il°'Ui)d nfngb^the1" descent cast on the infant 1611 ‘ 5th. That the b^h^tat6'1 dites oflimitation cannot be enl urged oft/e'construís tion. 6th. Statute having once commenced running, shall never cease to run till the bar is com píete. Tbe disability within tbe proviso of the Statutes of limitation, must exist when the right of entry or causeofaction accrues, and no subsequent disutility can prevent the bar. v/ynkoop vs. Damerest, by Chancellor eiu' Beauchamp vs. Mudd ¡tímate be-B sinsto\un, it continues ^ra°tion" from the”1 death of tho claimant. Comparison of the statute °rKf Ken-d lucky. statute of 21 James I, ch. 16. The proviso. Statute of Keutucliy 1796, Proviso in the |.tetule°f en u° Statement of d‘° distinctween the e" British and Kentucky a u es' Apparent efthe ¡vjaoi11-r &c. vs. May &c,. in adding disability upon disability. Floyd’s heirs vs. Johnson % Littell 114 compared with Machir Vs. May &c. Argument, on the words ,of the Statute an<[proviso,ix-gainst the construction in favor of the infant heir of the ousted ancestor. Objection to placing the infant heir of an ancestor, against whose right the Statute had never began to run, (Floyd’s Iieirs vs. Johnson,) in a worse condition than the infant heir of one against whom tho limitation had commenced to run, (Machiv vs. May Sic.) Objection gainst the distinction between the statute of James and our statute. Walden vs. Gratz Supreme court of the United States— against the distjoetiou, and according to the British decis- Cases since Machir vs. May,&c. and Sentnpy vs. Overton, not ruled on the principles those cases were decided on. Insisted that the saving in statute refers to disabilities existing at the time the cause of action arose, not to the subsequent, dissent.
23 Ky. 88Tumey v. Knox (1828)
Evidence. Physicians. Res gesta. Slaves. Witnesses; Warranty. Action for breach of the covenant of -warranty of tho soundness of a slave. Declarations of the slave and the defendants,vendor, made whilst the slave was m hiv possession, given in evidence to prove his disease. Save? statement to his physician. Opinion of tlie Chief Justice against the competency of the former owner Chief Jus^deeiai-ítjons 0f the slave, Definition of the res gestoeand wheroevidence. Parlies and privies. where declarationsnot etádence^ Slaves not c0“1Petent oeptforor against negroes and mu-their declarations are nevercompeagainstoftw* 6 Judge Owsley’s opinion. Judge Mills’ opinion. Judgmeut of the court.
23 Ky. 93Ward v. Bank of Kentucky (1828)
 Powers of attorney. Promissory notes. Custom of Merchants. Banks,. ^°'lve(of iU’ tornoy‘ Note sued on. Judgment of oircuit court. Facts agreed. Argument for the Bank. Power to an attorney to eyecute promisory notes for discount at Bank to a • certain amount, dot's not authorize the renewal of said notes. JO/Vect of the custom of merchants here, in their transactions in the Bank —by J udgo Mills.
23 Ky. 97Forsyth v. Kreakbaum (1828)
Detinue. Case 13. Error to.the Jessamine Circuit; Will. L. Kelly, Judge.
23 Ky. 101Logan v. Steele's heirs (1828)
■ Ejectment, Case 14. Error to the Fayette Circuit; Jesse Bledsoe, Judge.
23 Ky. 109Stewart v. Tevis' ex'or (1828)
Covenant. Case 15. Error to the Madison Circuit; George Shannon, Judge.
23 Ky. 110Stewart v. Jewell (1828)
Trespass, Case Iff. krror to the Clarke Circuit; George Shannon, Judge.
23 Ky. 111Lyle v. Bradford (1828)
Chancery. Case 17. Error to the Fayette Circuit; Jesse Bledsoe, Judge.
23 Ky. 117Clinton v. Phillips' adm'r (1828)
Debt. Case 18. Error to the Franklm Circuit; Henry Davidge, Judge.
23 Ky. 120M'Guire v. Trimble (1828)
Debt. Case 19. Error to the Greenup Circuit; ,W. P. Roper, Judge.
23 Ky. 123Ashcraft v. Brownfield (1828)
Chance»*, Case 20. Appeal from the Hardin Circuit; Path, I. Booker, Judge.
23 Ky. 130Peteet v. Owsley (1828)
 Bail. Scire facias. Conditions. Bni! <o the aciio'i who entered into the rooogni2.i>ioeun er the act of Iíi21,i8 not liable till after ca sa re turned, tho’ th >t writ is abolish d by the acr, and so tho scire facias caunot be maintained.
23 Ky. 131Washington v. M'Gee (1828)
 Parol contracts. Condition. Jurisdiction. Bill of M’Gee against Washington ami the heirs of Allen, for a conveyance of the land. Abandonment of the contract and of the possession of the land according to a stipulation in the written a¡¡reement of purchase effectual, without being endorsed by writing. Case held to be not within the jurisdiction of the court of equity-
23 Ky. 133Faris v. Shanks (1828)
 Division of the Judges. Decree. Costs. One J udge declining to sit in the cate and the other two not concurring, decree of the circuit court a'firmed with costs.
23 Ky. 134Stevenson v. Dunlap's & Blight's heirs (1828)
Chancer ít. Case 24. Apnoal from the Hardin Circuit; Paul I. Booker, Judge.
23 Ky. 150Chapline v. Moore (1828)
Chancery. Case 25 Cross appeals from the Mercer Circuit; W. L. Kebby, Judge.
23 Ky. 189Yeizer v. Stone's heirs (1828)
 infants. Costs. Prochain ami. It seems that where an infant suing by hisp rocharn ami, rcoovers below, and the defendant prosecutes here, and the' judgment is reversed, the judgment for costs here, shall be against the prachain ami, and not the infant.
23 Ky. 190Triplett v. Cox (1828)
Charceex. Case 27. Error to the Montgomery Circuit; Silas W. Robbins, Judge ,
23 Ky. 192McDaniel's Adm'r v. Donaldson (1828)
 Statutes. Judgment creditors. Trustees. Choses in action. Judgments at law‘ Bill by judgment credit-a debulue0 defendant, Ufd8>lheact 0 1 Answei of the administraBaniel. °" Donaldson’s answer. Bell’sanswer. Decree of the circuit court. Question stated- ■Where one to whom an obligation is assigned in trust for the payment of a smaller sum, agrees with the obligor he may pay another debt of assignor, and be credited for the amount, and it is done, the assignee cannot be subjected by a judgment creditor of the assignee by bill under the act of >21, but the transaction is valid. Question of fact decided. Decree and mandat?.
23 Ky. 195Sproule v. Winant's heirs (1828)
Chancery. Case 29. Error to the Madison circuit; George Shannon, Judge.
23 Ky. 198Payne v. Cabell (1828)
 Vendor and Vendee. Rescission of contracts. Equity. Deeds. Onus prohandi. Statement. C-rounds of Payne’s complaint. Cabell’s an-j-^th^objeetions to the tide, Boals’ dieMaimer, Answers. Injunctions dissolved, without damages. Objections to Cabell’s title alleged by Payne, found to be groundless. Alleged deficiency in quantity found without foundation. Vendee who accepts the title is presumed to have inspected the title and received the d< eds; and therefore, to resist the pajment of the price, mast prove the defect of the title, besides shewing be has no remedy at law. Decree of affirmance.
23 Ky. 203Head's rep's v. McDonald (1828)
Assumpsit. Case 31. Error to the Washington circuit; W». L- Kbi.lt, Judge.
23 Ky. 208Pringle v. Dawson (1828)
 Parties in Chancery. Practice in this Court. Personal representative ■is the proper party to set aside a conveyance for personalty. Proper parties not be-ins before the court, the merits not touched.
23 Ky. 209Sanders v. Vance (1828)
 Practice. Frauds against Creditors. Judgment. Sheriffs. Damages. Interest. Discretion of Juries. Declaration demurred to, defendant. °* Amended declaration in trover. where after a demurrer is sustained^to ^06„ <j.peai'a' plantiff files an additional out the de“¡^drawn^ anc[ then the defendant P|®ads uot phJa applies only to the neW °0im ’ Trial, and verdict for ceptions. Ne'v trial, and verdict for Vance, overruled, Error assigned. Question, on the decision setting aside the first ver • diet. Evidence given on the .first trial. . Instruction?, Where the sheriff, and plaintiff in the fieri facias justify, on the ground the property had been conveyed, or was held m fraud of creditors, he must shew the judgment on which the execution issued. Party who showed no judgment, cannot complain of a decision in favor of p. mortgagee holding in fraud of creditors. Trespass or trover may be maintained against the sheriff, and the plan-tiff in the execution also, who causes the seizure by the mortgagee, for seizing and selling the goods as the property of the mortgagor. Damages in ■ trover and conversion, is the value of the property at the time ofthe conversion, increased by th-ntorest tim't' of trial, or ,nót, in the discretion of ie JUfy- Verdictdisapproved for the judgment to entitle creditor and plaintiff to assail the mortgage.
23 Ky. 214Wilkinson v. Perrin (1828)
Parties. Practice in this Court. Executor. Distributeeft. Bill by L. Wilkinson, Parties, and distributees. Decree. In a bill for distribution, all ought to be settled. When the proper parties are not before the court, this court -will never decide the merits, except when an insuperable obstacle to the complainants relief is found, and his bill is dismissed, this court will on , that ground affirm. Where the wife’s father dies during the coverture, the husband becomes entitled to the share of slaves and other person- ' alty, and their children have no interest. Editor, publisher or printer must certify the publication of tjle onlor for the appearaace of an absent defendant. Executor & not the chil^“¡ofea?is" entitled’toreceive, must be ma<Je a aurtfordStrltuition, Executor or adm’or of the ^ed°before0 receiving her distributive share, must party. 3 a Mandate for new parties,
23 Ky. 218Grant v. Tams & Co. (1828)
Debt. ■Case 35. Error lo the General Court; John P. Oldham, Judge.
23 Ky. 223Price v. Wood (1828)
JYew trial. Witness. mo'Jed on the ground that the verdict ^evidence overruled below, awarded llere- Witness who becomes interested in the matter after his attestation, cannot withhold his teslim&ny.
23 Ky. 224Townsend v. Burgher (1828)
 Bank note contracts. Statutes. Petition and summons. Covenant for the hire of a slave, in bank notes, and to clothe and return the slave &c. Declaration for the nonpayment of the bank notes. Contracts for the payment of Bank - liotes, including within them other stipulations, are not within the act authorizing the recovery of Bank notes in kind. Like fionstruction of . the act al- - lowing the action by petition anti summons on obligations for the direct payment of money.
23 Ky. 226Hughes v. Craig (1828)
Chancem. Case 38. Error to the Mason Circuit; W. P. Roper,-Judge.
23 Ky. 228Sturgus' adm'r v. White's adm'r (1828)
Aítbaí to the Cm. C. Case 39. Error to the Madison Circuit Court; Geo. Shannon, Judge.
23 Ky. 228Smith v. Mahan (1828)
$JECTB£ERT. Case 40. Appeal from the Bourbon Circuit; George Shankon, Judge
23 Ky. 231Miller v. McClelland (1828)
Detinue. Case 41. Error to the Bourbon circuit; George Shannon, Judge.
23 Ky. 234Smith v. Morrow (1828)
 Practice. Notice to produce. Writings and proof of their contents. Evidence. Boundaries. Surveys Possession. Peases. Case formerly here. Trial after the return of the pause. It seems that where a writing is produced by one party, on notice from the Other, and after being -read is filed with the clerlt, and a new trial being awarded, the paper is afterwards improperly taken from the custody of clerk, ^ay compel ítspro.duption- where after the pa-par had been ty who produced it ^¡thoitits being committed to the th^olerk^fte cannot ^ ’ compelled to reproduce it. No party to the action can be compelled by a coart of law to produce his papers to be given in evidence against himself. But if he decline aftep due notice, the contents may be proved. Declaration of the occupant made at the time of his settlement, of under whom and how he took the possession, arc . part of the res gesta, and competent to prove the manner and extent of the possession. Controversy on the, fact of possession. Morrow’s ev' idence of possession. instructions, moved by Smith, overruled by the bourt. Settlement of the son-in-law of the former patentee within the interference between his patent and an elder grant unoccupied, under a promise of a gift of a certain number of acres, bur not demarked, gives the possession to the extent of the former patent. If the original settlement were outside the elder patent, and after-wards the improvements extended within the elder patent, the possession of the interference commenced with that extension of the improvements within the elder grant. Evidenqe raíití!ulied in conteftfor taxation, is tentC°mpe' hehart sur^6 rendered and not held the possession. that one of the parties New trial lefused.
23 Ky. 241Gentry v. Hutchcraft (1828)
Petition & Summons. Case 43. Error to the Madison Circuit; Geo. Shannon, Judge.
23 Ky. 246Irvin v. Divine (1828)
Chancery. Case 44. Appeal from the, Montgomery circuit; S. W. Robbins, Judge,
23 Ky. 248Lindley v. Sharp (1828)
 Usm'y. Mortgages. Parol evidence. Sales. Allegations of Lindley’s bill. Sharp’s answer. Gray and Lind-e-y’s ans'ver Decree of the circuit court. Lindley’s complaint against the decree. Sharp’s objections. An advance of money to an applicant for a loan for his obligation to deliver' slaves of a certain description in a certain time, worth more a than the money, held to be a usurious loan. Parol evidence is competent to prove a transaction in the form of an absolute sale, was a mortgage to secure a usurious loan. Opinion and cleorec'
23 Ky. 254Hopkins v. Chambers (1828)
Fleas in this Court. Case 46. Error to the Oldham Circuit; Henrí Davidge, Judge.
23 Ky. 257Hopkins v. Chambers (1828)
 Executions. Replevin bonds. Limitations. Errors. Costs. Fieri faeicts, Sheriff’s téturn. Pen. ex. em dorsed for bank note?, Second ven. ex. endorsed by the clerk, that bank notes should be received, but by plaintiff that bank notes would not be taken. Sheriff’s return ronlevied for two years. Fieri facias on replevin bond. Motion to quash replevin .bond, and executions issued thereon. Judgment of the circuit court. Grounds for the motion stated in the ■notice» Grounds re-lie<i011inthe befe™6"* Query, whe,therobjecpierinbond" apparent m the record, fr“^^rent grounds specified in the notil5e to be relied on here, Motion to replevin bond must be made at the term wg there-turn day of the first exeon1t*n iSSU6tl Bond taken by the proper officer, and having the characteristics of a replevin bond, payable at a period prescribed by law, for such bonds m any • case, is a valid judgment bond till quashed, however palpably erroneous it may be in amount, or other respects. “Twenty-four months” in the time of the payment of a replevin bond is equivalent to the two years directed by the statute. Where a fieri fiadas has been levied on land, and returned without a sale, no other fieri facias can issue on a judgment till that land has been sold or released. Judgment reversed in part, and affirmed in part. Costs.
23 Ky. 263Freeman v. Brown (1828)
Chancery. Case 48. Error to the Estill circuit court; Geo. Shannon, Judge. ■
23 Ky. 264Blight's lessee v. Atwell (1828)
 Evidence. Practice. Error. Taxes. Forfeiture. Statement. where there is no objecí|°n “a¿1 ¿p c0py°0p/the * deed read in evidence has original, Frior unrecorded deed is valid against all except purchasers and creditors, and their privies. Hence a de- • fendant in ejectment cannot read a subsequent’ deed to show-title out of the lessor, without showing be - holds under-it. Effect of the Register’s sale and deed. The 9th sec, of the act of Jan. 1825, alb lowing the defendant in ejectment to pot in issue, that the tax* es have not been paid on the land, applies to cases in the federal and not to the state courts,
23 Ky. 270Young v. Wiseman (1828)
 Mortgagors. Bar by adverse possession. Limitation. Slaves. Statement of the facts. Wiseman’s bill‘ Young’s answer' Vendee of the m°rtgagor of formed oTthe mortgage, bolding ad-7mn fim five years, is protecteclbythe bar against the mortgagor’s notion at law, or bill, to enforce his lien, That the mortgage had been duly recorded, does not affect the ■•ase.
23 Ky. 273Castleman v. Combs (1828)
 Statutes. Sales of lands in adversary possession. Practice in chancery. Sales pendente lite. Statement of the facts. Rescission of the contract, and surrender of possession. Case formerly here referred to. Castleaaan’s evidence of title. Combs’ grounds of defence. Instructions of the circuit court. Verdict and judgment for defendants. Instruction on the act against the sale of land in the adverse possession of others. Act prohibiting the sale of ver'g'possession, does not apply when holdsinsuch manner that he is bound the^oTsession to^hevendee withoutquestiomng his 1 e‘ Where, after t!'e <!ra<’e of resoina the contract, the was surrenders the vendor, Yhen th.at versed here ■ andihecon*3emitida to restoration« in such case, on the return of the cause to the circuit court, the chancellor ought to have the possession restored, and the matter of rents &c. all settled as a part of the original cause — not send the parties to law to finish the chancery suit. dase of Wii-Ham Combs, Conveyance by the vendor, who had deceived the possession after a decree of the circuit court rescinding the sale made before the entry of the mandate of this court reversing the decree' and 'affirming the cale, is a transaction pen dente lite, and does not affect the vendor’s right to the possession^
23 Ky. 281Wood v. F. & M. Bank (1828)
 Bills of Exchange. Statutes. Damages. Bill of exchange. f°thS-bili! or e 1 Sait on the note and the ed to Wicl-" liffe. Judgmentfor , gainst wood. Bill of Wood claiming credits, and to be relieved against damages on the bill, included in the note. Decree of the circuit court, “ — ;-- a||ooin0wed. claim of the credit for dissal- ■ lowe ' A bill of ex-tihangedrawn in Ky. and addressed Mr. J. I. W. N, Orleans, is a hill drawn upon a person out of this state, within the meaning of the 5th sec. of the act of J 798, and damages were recoverable on it. Otherwise held in Hopkins vs. Clay, 3 Mar. 448, where by previous agreement, the bill was accepted by Hopkins in Kentucky, where he resided. Distinction in the cases, byjUsboesia Owsley and Mills, not by |Nciliefjus"
23 Ky. 285Glenn v. Glenn (1828)
 Husband and wife. Alimony. Devises. Election. Bill of Elizabeth Glenn. Deed of gift, Facts of the case. Answer of the defendant. Decree of tbe circuit court. Suit for alimony not maintainable after the husband’s death. Effect of the husband’s deed of gift to the stepdaughter, of slaves acquired by the marriage, reserving an estate to the grantor and their Kvesrin abasóte-’1 tween widow fncliiUSi’ . .see 8 6V1" Dissent ofthe Chief justice, Decree.
23 Ky. 290Commissioners of the Christian Bank v. Greenfield (1828)
Debt oa Case. Case 54. Appeal from the Christian Circuit; Benj. Shackelford, Judge.
23 Ky. 291Hutchison's adm'r v. Sinclair (1828)
Chancerv. Case 55. Error to the Scott Circuit; Jesse Bledsoe, Judge.
23 Ky. 296Owens v. Holliday (1828)
 Bank note contracts. Evidence. Judicial notice. Judgment. Interest. Amendment. Error. Declaration on a covenant for bank notes, dated in J 823. Endorsement for bank notes. Verdict for dam.rgps equal to principal and interest, and judgment fo-r money. In case of covenant for bank notes, within the act authorizing the recovery in kind, the judgment ought to be but for the nominal amount to be discharged in the bank paper. Endorsement of the declaration by the plaintiff, that the bank paper would ho received,does not empower the court to render judgment for the paperinkind, in a case not within the statute. This court cannot, ex officio, notice, that damages equal to principal and interest, on a covenant for bank paper, dated before the act allowing the recovery in kind, are excessive. An attempt, at a subsequent term, to amend a judgment rightly rendered for specie, so as to make it for bank paper, is nought.
23 Ky. 298Semple v. Morrison (1828)
 Appeals in the circuit courts. Set off. Infants. Void and Voidable. Assignments. Warrant by Morrison vs. Semple. Set off relied on in defence. Judgment oí' the justice against Morrison, and appeal by Semple. Appeal dismissed on Semple’s motion, and reinstated on Morrison’s. ■ Appellant in the circuit court, who was defendant before the justice, cannot dismiss the appeal at his pleasure, but the appellee may have a trial on the merits. Sot off relied on. An assignment of a promissory note by the infant obligor, is not void, but voidable by him and his privies only, and not objectionable by obligor. Otherwise of an assignment by the infant’s attorney in fact; for an infant cannot make any attorney, by either deed or parol. The immediate presence and concurrence of the infant in the act of his attorney in executing a writing as attorney, does not help the 'case: it is void.
23 Ky. 302Gibbs & Hardin v. Stone (1828)
Covenant. Case 58. Error to the Washington circuit; Wm. L- Kelly, Judge.
23 Ky. 304Dean's heirs v. Dean's Ex'r (1828)
 Devises. Executors. Powers. Detinue. Equity. Thomas Dean’s will, Leven Dean qualifies as his ex’or‘ Widow’s assl®n" ’ > Leven Dean ‘lies’ an Subject of the controversy, Decree of the circuit court. Devise, that my wife i,a7a her dower in ™]a™di rectS) g¡veg her an estate jhiri for life8only? Remainder in ^’ed to\he" widow, goto the executors his^ril]."5 ° o"ae^exeou-' tor, is the ex-ecu tor of the first testator, by both the common Jaw, and our statutes. Power given by the testaecutor^to'seil the slaves and divide amon°cer^ Sdn^visefis, passes i.o the executors, add after the widow’s death, ho shall sell the slaves she had held as do-wer. Where the testator devises that land or slaves shall be sold, -without saying by whom, the executors who qualify, arid afier the dea'h of the survivor, his executor shall exercise the power. An executor empowered by the will to sell slaves for the benefit of certain devisees, cannot maintaindotinue against the heirs who obtain the possession. In such case, the possession may be recov ered by bill in equity.
23 Ky. 310Harris v. Smith (1828)
 Motions against Constables. Limitations. Jurisdiction. Facts of the case. Notice, Judgment, Motion cannot be maintained against a constable, for failing to return an execution,or pay over the money collected on it, after two years. Circuit courts have rntJ?" tions against constables for failing to return executions or pay over money ia cases below five pounds. Two or more such demands cannot be united so as to give the court jurisdiction.
23 Ky. 312Pentecost v. Miller (1828)
Ferries. Case di» Error to the Calloway County Court.
23 Ky. 314McGowan v. Manifee (1828)
 Actionable words. Colloquium. Evidence. Confidential communications. First, second, and third counts, ruled to be insufficient'bythe circuit court. Fifth and seventh counts, held, by the circuit judge, tobe insufficient. In counts in slander, tbe words are to be taken in neither tbe milder nor-more grievous sense, but in. that the hearers would understand them. Expressions of suspicion, or opinion, may amount to slander. Formerly the words themselves must designate the person; now the colloquium may do it. Confidence-between witness and defendant, injunction of secrecy, and the like, no objection to the proof o£ the publication of the slanderous word?. Instructions, as in case of a nonsuit erroneous Judgment and mandate.
23 Ky. 317Com'th for Harrison v. Pearce's ex'x (1828)
 Collector's of militia fines. Statutary Bonds. Actions. Militia paymasters. Declaration, Condition of tl|lc de c aTe on” Assignment of breaches. Coliector of militia fines, appointed by the officers of a regiment, has no power to collect fines imposed after his appointment. Such part of of the condition of such collector’s bond as would bind him to collect such subsequent fines, is ineffectual. —But, It seems such bond is good to secure the collection of the fines previously imposed. Not necessary in the condition of such bond to enumerate the duties of the collector, but the specification of those imposed by law will not vitiate it. ■ Bonds of collectors appointed by the officers of a regiment, ought to be made payable to the Com’th. Actions may be maintained on such bonds in the name of the common’tb, at the relation of the paymaster of the regiment. Bond valid, so far as conformable to the statute. J udgment and mandate.
23 Ky. 321Bodley v. Hord (1828)
Motion. Case <34. Error to the Mason Circuit; W. P. Roper, Judge.
23 Ky. 324Milam v. Thomasson (1828)
 Absent defendants. Orders of publication. Parties, Practice in this court. Wm.Massie a necessary party. An order for the appearance of an absent defendant on or before the calling of the cause at the next terra, is insufficient. The act requires a certain day to be fixed in such an order. Certificates of the uublicatior of orders for the appearance of absent defendants must shew that the number of insertions required took place between the date of the order and ajv pearance day. Necessary parties not being before the court, • thediscussiols of the merits declined.
23 Ky. 325Tate v. Parrish (1828)
case. Case 66. Error to the Clarke Circuit; Geo. Shannon, Judge.
23 Ky. 329Baxter v. Evett's lessee (1828)
 .Boundaries of surveys. Lines and comers. Plaintiff’s claim. Defendant’s claim. Plaintiff’s evidence of his boundary, and defendant’s possession. Defendant’s evidence of his boundary. Surveyor’s report. thTimdence 0f defend-boundary- Instructions moved by the defendant, and overruled by the court. Verdict and judgment for plaintiff, and motion for new trial overruled. Actual abut-a Is, artificial or natural, made or adopted by the surveyor, govern the boundary wherever they are extant, or their former existence can bo proved.
23 Ky. 335Collins v. Secreh (1828)
 Usury. Bank note contracts. Facts of the case, appearing in the pleadings and proofs. Decve'e of the circuit court. 3x>an of depreciated bank notes, to be repaid at the nominal amount in specie, is usury, and the borrower is bound but for the value of the paper •when loaned, with legal interest.
23 Ky. 337Chaplin v. Simmons' heirs (1828)
 Eovjer. Executors and administrators. Husband and wife. Slaves. Hire. Infants. Guardians and wai'ds. Case stated. Bill by Simmons’ heirs. Deoreo of the circuit court. Widow is entitled to the mansion house and the wholeplantation, rent free, till her dower is assigned her. An administratrix and her sureties are liable to the distributees for omission to hire out slaves, & for the sale of slaves made by her after-married husband, Tvitli or without hev consent. After-married husband of f," bie,oven after her death, for whatever oí g0odsremaiii ed in her haná®at th® "n^aii causes of scWon acoruoover^urn. Otherwise as to the liabilities she had incurred before the coverture, for then he is liable only in case of a recovery against him. before her death. The distributees being infants, and having resided with their mother, the ncim’x, no interest on their distributive shares allowed. _ Adm’x who unnecessarily g£anAccount for the value of the slave, and also the ]lire up t0 the time of dl8tribu* 1 Infant children may bo amount of° the hire of a slave adminisfratrix had unnecessari|y sold, and founts'for6 their maintenance, but no shall be sunk, infants shall eij for main“ tenance after lo^atntain' themselves,
23 Ky. 341Graves v. Moore & Burton (1828)
 Evidence. Erased credits. Onus prohandi. Quegtion sta„ ted. Credit on tijo note sued on erased. Kvidcnce of nayment. Instructions of the circuit judge. Evidence of a witness, conducing to prove the payment of the money mentioned in the entry of the erased credit on the note paid upon, and the direction of the payor to thus appropriate it,held competent. An entry of credit once made on a note, but afterwards erased, is evidence, and will entitle the obligor to the benefit of it, unless disproved or explained off.
23 Ky. 344Aldridge v. Birney (1828)
Chakcerí. Case 71. Error to the Garrard Circuit; John E. Brides Judge.
23 Ky. 351Dunn's heirs v. Pigman's heirs (1828)
Chahcery. Case 72, Appeal from the Fayette Circuit; Jesse Bledsoe, Judge.
23 Ky. 354Burnham & Co. v. Gentrys (1828)
Chancery. Case 73. Error to the Madison Circuit Court; Geo. Shannon, Judge.
23 Ky. 356Offutt v. Ayres (1828)
 Principal and Agent. Construction. Obligation. Note declared on. Demurrer to to declaration, and ' jud rraent for dfendanl. Question stated, whose is the note? A note in these words: “I promise to pas' S. O. $114, signed, 'for B 4. by W. B. A,” is not on obligation of B. A. but on W. B. A. Dissent by ch. jus. Bibb,
23 Ky. 359Miller v. Patrick (1828)
 Statutes. Processioning of land. Perpetuation of testimony. ¡Notice. County courts. Error ¡ Report of the oe^o'ners'of" their prooeediugs, and before them, offered to be approved and recorded. Report excepted to, and motion opposed by plaintiff in error; but report received and recorded. statutes in relation to the Processioning of lands. Special commissioners, to be appointed on the party’s motion, may take testimony, and go around the land, and remark it; but they report only the testimony, and that to the clerk only, nut to the court. Standinsrprocpssioners appointed by that act, had no power to take testimony- They could only procession^ re-mark and renew the lost boundaries of the land. Their report had to be an-proved by the court, and recorded by its order. Act of 1815 authorized special commissioners to bo appointed on the motion of the party, and empowered them to perform all that could be done by both classes of commissioners authorized by the act of >96. Their report ofprocessionN? and of directorio* be made to itdtoUo the court, Standing propointedbyap' the act of ’96, directed to be go(™n. ed by this act of 1815- By this act of 1815, the standing processioners may take testimony, ami they and the special commissioners ave gw en all the same ooivers. Reports of the standing commissioners must be made to court, and then judicially passed upon. Otherwise as to the reports of the special commissioners appointed under.eilher act: they report to the clerk. When the standing processioners perform the duties requir-. ed by both the acts, they pinke but one report, and that to the court, when it must be passed upon and ordered to record. Objection to the evidence of the publication of the notice. One who at-attends the com’rs, and cross examines the witnesses, and takes.depositions on his - part, cannot object for the lack of notice. Notice to meet at a certain dwélling, house near the land, and thence to proceed around tha land and take the testimony &c. will authorize the depositions to be taken at the corners as the business pro-, greiies.
23 Ky. 364Ballard v. Stephenson (1828)
 Rescission of Contracts. Improvements. Rents. Assign* ments. Equity. Sale to Gilleland by Stephenson. Bond for the land assigned Ballard, and judgment at law recovered. Bill for injunction hy Stephenson. Allegations and prayer of the bill. Gillelancl’s answei'- Ballard’s answer aricJ gajnst st<£" phenson, 0ecvoe of Ul0 circuit court, Cancelment of the contract. It seems that the assignroent of a bond for the conveyance of land, made after the cancelment of the contract between obligor and obligee, confers on the assignee the right to recover for the improvements obligee had made on the premises. Payment for the improvements by the obligee to the obligor, made after his notice of the assignment, in such case, will be no defence to the claim of the assignee. If, in such case, the assignee obtain a judgment for an alleged breach in the covenant to convey for the nominal amoun t of the consideration money and interest, and the obligor come with his bill alleging and shewing the prior cancelment of the contract, he must pay the balance of the improvements, after deducting the rents. Complainant must do equity before he can ask it. Mandate-
23 Ky. 368Bently v. Gregory (1828)
 Parties in chancery. Revivor. Process. Ercrar. Practice in this Court. Judgment at .law by Pile. gainst principal and surety, brought on]rim°ipaI Bill for injunction against the judgment ■rendered a- Allegations of ee bill for sot-off. Deatli of 'Pile, the _ plaintiff in the judgment, and no revivor. Decree dísmissing the MI- Decree disapmerits^ °n Practice in tilis oourt‘ It is not nebfiTbrthe & principal "dc-fondant in a At j^^t'hat the surety be ra;ide a par- ’ where a defendant dies after answer, b/revived y against his representaan court, butthe representagg^eiTwith X Cgpy 0f the ‘ order. a party who appears in 'his court, g^'e^fore the circuit court, upon ‘jj® *®tR™
23 Ky. 370Maddox v. McGinnis (1828)
 Declaration. Malicious prosecution without probable cause,, Arrest of judgment. Verdict for plaintiff, and judgment arresto . Auoicnt anihovities that the averír'ihe foTmaHcious prosecution, that there ahfocause " •tvas not fatal, In a declara*?on for macuíior^,Pti°e°' averment that the pros-probable cause, is infectnotcureci by verdict, words of tHe «ame sense of “without any Jause’’will be sufficient, But, falsely and maliciously, will not supply their place.
23 Ky. 372Kennedy v. Davis' devisees (1828)
Chancerv. Case 79. Error to the Madison Circuit; Geouse Shannon, Judge.
23 Ky. 378Boner v. Smith (1828)
Ejectment. Case 79. Error to the Pendleton Circuit; William O. Brown, Judge.
23 Ky. 381Hart v. Hampton (1828)
 Sheriff's sales. Deceit. Sales. Defendant in an vxecn'.ion is not responsible for not disclosing at the sale, diseases of his slaves, or other defe.ct in the property-exposed to sale; he is not vendor.
23 Ky. 382Sallee v. Duncan (1828)
Chancery. Case 81. Error to the Christian Circuit; Benj. Shackeuford, Judge.
23 Ky. 384Boone v. Rains (1828)
Case. Case 82. Error to the Mason Circuit; W. P. Roper, Judge,
23 Ky. 386McGuire v. Kouns (1828)
Ejectment. Case 83. Appeal from the Greenup Circuit; Wjyr. P. Roeer, Judge.
23 Ky. 388Williams v. Vancleave (1828)
Chancer i. Case 84. Error to the Shelby Circuit; Henri Davidge, Judge.
23 Ky. 394Trimble v. Spiller (1828)
Assault & Battery. Case 85. Error to the Clarke Circuit; George Shannon, Judge.
23 Ky. 396Brown v. Wright (1828)
 Principal and surety. Rescission of Contracts. Novations. Judgment at law against complainant. Grounds relied on in the hill for injunction. Parties, Brown and Slater’s answw- Decree of the circuit court. Surety of the purchaser - the bin and prayer of himself only, ínins/hfe^ obligation on the ground of í^e^vítbout shewing his principal and vendor had combined to defraud him. A novation between the principal and creditor, whereby time is given, to the prejudice of the surety, discharges him. In such case, the new contract must be such, that the obligee ought to be compelled to rely on it, and not resort to the surety.
23 Ky. 399Price v. Ford (1828)
 Surprise. Mew trial. New trial awarded, against the decision of the circuit court, on the ground of surprise, by the early trial of <he cause, before defend • ant’s arrival at court, and the absence of witnesses.
23 Ky. 400Noel v. Bank of Kentucky (1828)
Debt. Case 88 Error to the Franklin Circuit; Hen&v Davidce, Judge.
23 Ky. 401Lansdales adm'rs v. Cox (1828)
 Sureties. Contribution. Jurisdiction. Statutes. Motions. EPors and heirs.' Judgment against Cox, the survivor of Lansdale, his co-surety °aicl j^cox’s sureties in a bondltuid then by Cox to his sureties. Coxhasjuclgmeat against Shanks, the principal, but fails to recover the money. Judgment on motion by Cox, against Lansclale’s adm’ors and heirs. Statute giving the motion. ftemedy against heirs &o. on the contract of their ancestors at'com•mon law. ~H ! bythTstauue against the executors andllRirs- Remedy of one surety forTon"tribution was anciently in but'the'commonlaw courts now^^ction'3 J Action at law by ono aureiyaijainst another for contribution, is on the implied simple contract, and not maintainable against tlie heirs only, but is given by the' statute against them and the o.x’rs and adm’rs jointly. Motion given by the statute in such case to one surety for contribution against the other and his ‘-legal representatives,” lies against the ex’or or adm’r only, and does not embrace the heirs. Such was the construction of the statute of Virginia,of which the act of 1796 is but a re-enactment. Heirs in such easqs may be subjected by the formal action or bill in equity.
23 Ky. 401Legrand v. Page (1828)
case. Case 90. Error to the Logan Circuit; Henry P. Broadnax, Judge
23 Ky. 406Sliger v. Grants (1828)
 Discontinuance. Notice to tenant in possession. In ejectment, the declaration must be filed and entered on the records of the court at the term the tenant .is warned to appear bn the case, is not in court.
23 Ky. 407Ross v. Neal (1828)
Case. Case 93. Error to the Whitley Circuit; J oseph Eve, J ud,^ c.
23 Ky. 409Forean v. Bowen (1828)
Covenant. Case 93. Appeal from the Christian Circuit; Ben. Shackelford, Judge,
23 Ky. 412Pope v. Wickliffe (1828)
Debt Case 94. Appeal from the Bullitt Circuit; Paul I. Booker, Judge,
23 Ky. 415Boyd v. Snelling (1828)
Assumpsit. Case 95, Error to the Bath Circrit; Sil\s W. Robbins Judge.
23 Ky. 417Woodson v. Buford (1828)
Ejectment. Case 96. Error to the Lincoln Circuit; John L; Bridges Judge.
23 Ky. 419South's & Hoy's heirs v. Carr (1828)
 Process. Non compos mentis. Orders of publication. Executors. Heirs. Decrees. Case staled. Proof of the-endorsement of the acknowledgement of the service of a subposna in chancery, must appear in the record. Parties non compos mentis. Infant defendants in chancery. Oiders of publication. Where the executor denies assets, and there is jio proof, the decree cannot be for the assets in his hands, but guando acciderint. If in such case assets be proved to some amount, but not sufficient to satisf the deitt-ind, the decree ought to order the payment out of the assets in hand for that amount, and guando for the residue. There Ciin be ncwiecreea/for there cannot be a future them!"
23 Ky. 421Butt v. Bondurant (1828)
 Specific performance. Unequal and hard bargains. Extortion. Usury. Conditional sales. Bank notes. Commissioners. Mortgages. Practice. ^ Bondurant on terms held to beusuri" k or gage“ Condition in the deed of mortgage, and stipulation for absoluto sale^ Default of Butt. Subsequent tender. Bonduraut’s refusal of the money, claim of his purchase, and tender on his part, and Butt’s bill to recleem- Bon(jnrmt,g answer. j)ecroeof(j circuit court! In general, equity will 00 a where the remedy is not mutua!' Equity will not favor ex • etgoro'chartl bargains, Device of conditional mortgaged property, to the lender to ry'ine/Tectu^* al.’ ° ”* Value of the bank paper loaned,to be ascertained by a oom’r, usury extracted, and mortgagor allowed to redeem, or sale nrdered.
23 Ky. 424Bouldin v. Alexander (1828)
 Injunctions. Jurisdiction. Replevin. Execution. Bill to enjoin the sale of two boats and their cargoes, seized uruier an cx_ edition a»ainst erperson- Decree of the circuit court p^nant°m Remedy of the own°r oi soSed"under an execution against anoHotTn equity.’ Where in s“ch case ajTqVaterémedyatlaw, the chancelor may afford relief. Action of replevin is not confined to casos ofdistress,but is the remedy for any wrongful taking the property of the owner out of his possession. Defendant in the execution by which the property was seized, oannot regain the possession by the writ of replevin; otherwise of. strangers to the process. Jucltrmcnt in oa*e the pl’ff fail« to replevm. Dissent of oh. jus. Bibb. Dissent of ish.jus. Bibb. Dissent of ch. jus. Bibb. Disfcntof ch. jus. Bips. uissent of ch. jas. Bibb. Dissent of oh. jus. Bibb. Dissent of oh. jus. Bibb. Dissent of cli.jus. Bibb. Dissent of ch. jus. Bibb.
23 Ky. 438Talbot v. Cook (1828)
Chancery. Case ICO. Error to the Nicholas Circuit; William O. Brown, Judge.
23 Ky. 439Divine v. Harvie (1828)
 Constitutional law. Suits against government. Public creditors. Jluditor and Treasurer. Choses in action. Mzndamus. Statutes. Construction. Case stated. Demurrer to the bill overruled, anil decree for IIarvie. Statute subjectingchoses 'in action to the payment of debts. State cannot be sued in her own courts. There has actment'Tuder the ’ clause of the ^¿ch^ecís the legisla-0 S ture to provide how brought^- ° gainst the state- b^madea0* garnishee. Suit cannot be. maintained against the auditor and treasurer as parlies, in place of the slate, to obtain a warrant and money from the treasurer. Case of Osborn vs the Bank of the U. S. cited, and its principle stated. treasure30 cannot be made parties garnishees^r stake holders of the public money. Creditor of not be OTrt)11' pelled,bv bill under the act cho*es^n ac tion^to as-°" sign’his warrants on the otherwise** transfer the hi”creditor. Demand on stat.e 13 ¡n action, within the statute. Creditors of foghorn1 there had been approby jt^eems,111^'' mamíamns against the auditor and conTeHhem to pay the money out of the lrea3ury- State is not embraced by anact made to operate between ^^guch’ intention ¡s apparent in llie aot' ¿ct subjectingthe debts due a judgment debtor to credit-embrace* a° debt due by die state, Effect of the contrary construction. Same law, it seortls»° debts due from the If. Slates. judge Owsley 'dissenting. Dissent of Judge Owsley. Dissent of Judge OwsLET.
23 Ky. 446White v. Brown (1828)
Administration. Case 102. Error to the Franklin County Court.
23 Ky. 449Herndon's ex'ors v. Bartlett's ex'or (1828)
 Lapse of time. Judgment. Executors. Statute of limitations. Case stated. Judgment for defendant in a suit, by B, attorney in fact for W, is a judgment against B, and be may bo sued in an action on suoii judgment. Lapse of time iess than 20 years, may or not, be sufficient evidence ofpayment. . Effect of the fact, that an execution had issued on the judgment and never returned; ofthe removal of the defendant, and non-residence of the plaintiff;- and statement of defendant, in support, and against the presumption of payment from lapse of time. Act of Virginia limiting the action on a judgment to. 10 years,does= not apply ■where the defendant removed from the state before the judgment was recovered; the proviso of the. saohcasos?3 Judgment, Sssenfang106 Dissent of ch. jus. Bibb. Dhsent of oh. jus. Bibb. Dissent of ch.jus. Bibb.
23 Ky. 455Tribble v. Taul (1828)
Set-off in equity. Jurisdiction. Judicial decisions. Constitutional law. Bill for set-off against judgment at lair. Set-off in equity allowecl only when it appears there is some obstruction to the recovery of the demand at law, or there is an agreement to set off, a connexion between the demands, or other circum stance to give (he chancellor jurisdiction. ' Necessity of the uniformity and stability of the decisions of this court. Cases in which sets off in equity-may be allowed. Statute of set off at law has not enlarged the jurisdiction of courts of equity. Principle of the common law against sets off,before ■the statute. Cases of sets off in equity-cited. Query of the constitutional power of this court to depart from the adjudged' eases, and enlarge the equity jurisdiction. Dissent of eh. jus. Bibb. Dissent of eh. jus. Bibb. __ Dissent of ch- Óus- Bibb< Dissent of oh. jus. Bibb. Dissent of ch. jus. Bibb. Dissent of ■ ch. jus. Bibb. Dissent of oh. jus. Bibb. Dissent of ch, jus. Bibb. Dissent of oh. jus. Bibb. Dissent of cb. jus;. Bibb.
23 Ky. 469Hobbs v. Blandford (1828)
 Husband and wife. Fraud on marital rights. Notice. Evidence. Detinue for a slave by Fr., D. Blnndford against Hobbs. Bill of sale by Hobbs’ wife before marriage, claimed under by-plaintiff.. Evidence of the execution of the bill of sale. Record of (be case of F. D. a' Itandford’ and Hobbs, 'Evidence that the bill of sale was in fraud of Hobbs’ marital rights. Instructions moved by-Hobbs, refused by the court. Record of the case of W. Bland-ford against Hobbs offered, but rejected by the court. Farther evidence Of the intent of thS bill of sale. Instructions s-iven by tbe court. 'Verdict and .‘judgment for ^Blandford. Title acquired by the plaintiff pending the ac- ‘ tion, avails ‘ nothing. Conveyance of the estate of the feme, on the eve of her marriage, without the consent of her contemplated husband, is a fraud on his rights, and void as to him. tween en" fndmarriage, of the dongS Lte^rfáud of his marital rights, does conveyance^ nor affect ids ri'Sht> Notice of the husband be- Husband’s ratification of the conveyance would bar his claim; but that cannot be infer-ed from the single fact of notice.
23 Ky. 475Madeiras v. Catlett (1828)
 Mortgages. Liens. Cross bilk pro confesso. Parties-in chancery. Assignor add Assignee. ^®deir v® gainsT Bradford. Catlett’s bill against Bradford, Madeilas, and others. Madeiras’ cross bill. Hearing. Motion for cross bill to bo (alien for confessed. Decree. fn a bill to foreclose, all persons interested in the mortgaged premises should be made parties. Cross bill cannot be taken for confessed against one of the original complainants not named as a party to the cross bilk Assignee of a bond for land and mortgagee of the as^ sisr.or have each but. equities, and the prior shall prevail. bjjj by the assignee of sLli''S adm’orofthe heir, executor*nntl reséntativeíF of the obligee are neoessarj p 1 Other neeessai7 parties, Mandate.
23 Ky. 478Yoder v. Atterburn (1828)
CHAKCiERV. Case 107. Oross writs of error to the Jefferson circuit;. J, P. Ox-pii-AM, J udge..
23 Ky. 520Gore v. Hedges (1828)
Motion. Case 108. Error to the Nelson Circuit; Paul I. Booker, Judge.
23 Ky. 521Thomas v. Kelsoe (1828)
Chancery. Case 106. Error to the Montgomery Circuit; S. W. Robbins, Judge.
23 Ky. 524Bell v. Waggener (1828)
Motioh. Case 107. Error to the Franklin County Court. This was a writ of error to a judgment of the county court, rendered in favor of Waggener, a county creditor, against, Bell, as county collector, of the levy made in the year 1824, and collectable and payable in the year 1825.
23 Ky. 529Tribble v. Frame (1828)
Trespass, Case 108. Error to the Montgomery Circuit; Sieas W. Robbins, Judge.
23 Ky. 534Foster v. Fletcher (1828)
Trespass. Case 109. Appeal from the Nicholas Circuit; Wm. O. Brown, Judge.
23 Ky. 537Harrison's devisees v. Fleming (1828)
Occvpants, Iona fide and mala fide. Improvements. Devisees. Practice in Chancery. tyheie.™6*" statement of fuels, Baker)S dismissed, Bill of Harrison’s devisees Defence of Fleming. Decree of the circuit court. Bona, fide occupants only, are entitled to compensation for improvements by the common law. Devisees'who settle and improve land the testator had given his obligation to convey, with full knowledge of the claim, shall not be allowed compensation for their improvement Bar by former decision. Equity does not' admire the splitting of controversies into numerous suits,
23 Ky. 540Robinson v. Offutt (1828)
Chancery. Case 111. Appeal from the Woodford Circuit; Will. L. Kelly, Judge.,
23 Ky. 542January v. January, Lytle & Steel (1828)
Chanoehy Case 112. Error to the Mason Circuit; W. P. Roper, Judge.
23 Ky. 545Garnett v. Garnett's lessee (1828)
Evidence. Possession of defendant. Deeds of conveyance. Relinquishments. Case stated. Titles of the ^session^ the land in contest, Motion for a new trial ovorvuled. Jt is indispensabl€¡ in the fectment To prove, on the trial,the def’t attheinstitution of the •celtas to a defendant, -admitted to defend the another. Title papers tiff! 6 p ain" Release hr deed of con-donating1 the grantee, cannot pas's tlle New trial awarded;
23 Ky. 547Durrett v. Whiting (1828)
chancery Case 114. Error to the Bourbon Circuit; Geo. Shannon, Judge.
23 Ky. 549Simpson v. F. & M. Bank (1828)
 Executions. Replevin bonds. Statutes. Constructions. Judgment for the ®a.nIc, on and summons Reco„n;g. anco in the nature of a bom^fortte amount of 8 the judgment Execution on the recognisance. Motion to quash the ex-ecutionissned on the recognisance,overruled. Grounds of the motion. Ninth sec. of the act of 1820, authorizing a replevin for 12 months, of executions issued on recognisances, does not apply to recognisances entered into after that enactment, but applies to prior cases.
23 Ky. 552Estill v. Fox (1828)
 Pleading. Gaming. Penal actions. Limitations. Declaration. fleas filed, and demurrer overruled. Elea held sufficient. i>lea,in an ac-turn qui tarn, that the de•fendantswere not in debt to the party roonXbe-6 fore the actioncomrnenced, is fendants 6" could not have been indebted to the plaintiff bemeIJCej.' Plea of the statute of aYYaaiYc-0 tion. Limitation may be relied on>!n a Peaal thYgeneral*^ issue, Limitation to fYYYthYYct of Yt98 YcY recover a thing lost at 0ar.lá and paid, «>u"tbe fYYYtlmdate 0( payment, and is three month. The limitation to the action under tho act of J799, tn recover money or property bet at cards, commences from the loss o the bet, and is governed by the general limitation law. Judgment reversed.
23 Ky. 555Tyler v. Bank of Kentucky (1828)
Bills of exchange. Protest. Evidence. _ Judgment for the bank against Tyler, on his endorsement of a negotiable note,discounted. Question.stated. Hule in Chit t. on Bilis, thattho protestofthem,tary public of ñ foreign lan<lin'E"S" sufficient evideuce of the demand and is°i'rom gle pos revolutionary i’aw ’ antl not statute of Ky. makes P™^sl of sufficientevidenoe o- the demand and of all^forei^n bills, and negctiabJe o^their^oot jug.
23 Ky. 558Reed v. Greathouse (1828)
 Fraud in sales. Instructions. Error. Detinue for a slave by Reed; verdict and judgment for Greathouse. Title of Greathouse t.o the slave. R’eed’s title. Error complained of by Reed. ¿Parchaserof a life estate only, cannot impeach as fraudulent, a prior conveyance of the remainder, and on that ground claim the entire estate. üon cMcul'a ted to'divert the attention Rom'ho facts on which their verdict oughl to dewlietheVright er wrong in fho abstract.
23 Ky. 560McMillin v. McMillin (1828)
'Chancery. Cáse 119. Appeal from the Clark Circuit; George Shannon, Judge.
23 Ky. 568Speed v. Braxdell (1828)
Ejectment. Case 120. f Appeal from the Mercer Circuit; Wm. L. Kelly, Judge.
23 Ky. 574Hanson v. Cowan (1828)
Coves ant. Case 121. , Error to the Fayette Circuit; Silas W. Robirs, Judge.
23 Ky. 576Taylor v. Bank of Illinois (1828)
Assumpsit. Case 122. Error to tbe Union circuit; Alney McLean, Judge.
23 Ky. 587Pool v. Young (1828)
Chancery. Case 123. Error to tbe Clarke Circuit; George Shannon, Judge.
23 Ky. 591Castleman v. Homes (1828)
Chancery. Case 124. Eight cases of writs of error, to the Fayette Circuit; Jesse Bledsoe, Judge.
23 Ky. 593Kay v. Fowler (1828)
chancery. Case 124. Error to the Fayette Circuit; Jesse Bledsoe, Judge.
23 Ky. 597Nantz v. McPherson (1828)
Chancery. Caso 125. Error to the Logan circuit; Henry P. Broad¡sax, Judge.
23 Ky. 601Wood v. Coghill (1828)
Scire fa-CI Case 126; Error to the General Court ¡ Henrx- Pirtee, Judge.
23 Ky. 602Smith v. Maxwell's heirs (1828)
Guardians. Mortgages> Dower. ■ Disclaimer. Distribution. Decrees. Security. Guardian of infant dis■chlirirfCaPUt" slave testator had mortgagfor them5su™ ject to the * payment of the mortgage money and interest. Such d ianbün^the widow of the testator, after claimed the right to hold the slave so “ ' ¿o^er^cannot hold him. as snch,bat as 6 Billnotmaintainable for distribution in part. Decree directed against ^im'^ahso]ute owner, and that sho a^¿iar" g¡ye security thatthc slave bo forthcoming.
23 Ky. 603Davis v. Ballard (1828)
 Mistakes. Amendments in this court. Injunctions. Damages. Statutes. Decree of the circuit court for perpetual’ J.eiersed'liere and mandate fordamaSes- Decree of the circuit court for damages, without specif-. ins; the amount, or on what sum. Facts of the Qftse. Mistake in an opinion of this court, ordering damages where none were recoverable, might probably be corrected at a subsequent term, as a clerical mistake. ■Where the final decree of the circuit court, awarding a perpetual injunction against a judgment at law, is reverted here, the damages are recoverable though there had boon no previous injunction. Mandate.
23 Ky. 605Dicken v. Griffith (1828)
Ejectment. Case 129. Error to tlio Daviess circuit; Alney McLean, Judge.
23 Ky. 609Peebles v. Porter & Co. (1828)
Covenant. Case 130, Error to the Mason Circuit; W. P. JRofer, Judge.
23 Ky. 612Blight's heirs v. Tobin (1828)
Chancery. Case 131. Writs of error to the Hardin Circuit; Paul I. Booker, Judge.
23 Ky. 626Webb's heirs v. Webb (1828)
Changers’-. Case 132. ‘Error to the General Court; John L. Bridges and Henry Pir. tle, Judges.
23 Ky. 632Davis v. Phelps (1828)
Chancery. Case 133. Appeal from the Madison circuit; Geo. Shannon Judgo. i
23 Ky. 640White v. Clarke (1828)
■Chancery. 'Case 134. Error to the Madison Circuit; Geo. Shannon, Judge.
23 Ky. 644Jarman v. Patterson (1828)
rejlevin. Case 135. Error to the Madison Circuit; Geo. Shannon, Judge.
23 Ky. 652Burnham v. Oldham (1828)
 Vendor and vendee. Sel ojf in equity. Dower. Contract for land. Judgment for part of the purchase money. Judgment on the obligation to deliver possession. Bill for the title; decree and conveyance accordingly. Burnham’s bill for set-t against the judgment. Decree of the circuit court. payment of no part of the Pprc^(j“0~ rou ted on the grounds vender’s11 dovrafter a conveyance gUiYiioquity. Vendee cun-- ■ not set off oftho purchase money ihe damtention of the ¡and in posvendor subsequentto are-e deliver the premises, d’K,S* vn-ed may Té setoffinequity^because ot ¡0'®_corinex' Mandate.
23 Ky. 654Tevis's representatives v. Richardson's heirs (1828)
Chañcerw Gase 137. Appeal from the Madison Circuit; George Shannon, Judge..
23 Ky. 663Wood v. Sayre (1828)
Motion. Case 138. Error to the County Court of Fayette.