Volume 24 — Kentucky Reports

<p>'chancerv.</p> <p>Case 1.</p> <p>Error to the Clarke Circuit; George Shannon, Judge.</p>

<p>Swre Facias.</p> <p>Case 2.</p> <p>Error to the Clarke Circuit; George Shannon, Judge.</p>

<p> Rescision of contracts. Evidence. </p> <p>Bill for rescission, on the ground of a superior adverse claim, known to vendor, but concealed.</p> <p>Answer.</p> <p>Parol evidence of the existence,and vendors knowledge of the alleged superior a claim, without shewing the instruments of the title, will not avail to rescind the contract.</p> <p>It must be shewn by the party asking the rescisión, that the adverse claim he fears is superior, and covers his purchase.</p>

<p> Bank note contracts.. Interest. </p> <p>Covenant to pay Bank notes found in an instrument containing covenant to do other things, not within the statute, authorising a recovery in kind.</p> <p>Value of the paper when due, and interest thereon is the criterion of damages.</p>

<p> Parties. Arbitration. Rescisión. </p> <p>Statement of the case.</p> <p>“Theyarii'e.!” in orders of court, only embraces persons before the court.</p> <p>The person responsible for title may with obligee submit the question of specific execution or rescisión not- ' withstanding intermediate assignors.</p>

<p>■Chancery.</p> <p>Case 6.</p> <p>Error to the Madison Circuit; George Shannon, Judge.</p>

<p>motion.</p> <p>Case7.</p> <p>Error to the Henry Circuit; Henry Davidge, Judge.</p>

<p> Duelling. Actions Qui tam. Rights of Trustees of Seminaries. Fines and forfeitures. County Levies. </p> <p>Question staQwi tam, the only action for the penalty incurred by «ending a -chndange to fight in single comba t. The action cannot, be maintained in the name oi ¡in individual and the tru-te.es of Seminaries. Tin* Commonwealth m».«t be a party. If the trustees can claim, they cannot do so until the fine and forfeiture has been collected by the proper officer. But quere, whether fines and forfeitures to be recovered by qui tarn n cl ion are appropriated io seminaries.</p>

<p> Justices of the Peace. Appeal. Appeal bond. Condition. Statute. </p> <p>statement,</p> <p>Judgment of circuit court.</p> <p>Bond held good. Amount of judgment superceded is all that is ■required to be secured by the Act of 1812, increasing tbe jurisdiction of Justices of the Peace,</p>

<p>Emancipation. Legislative power. Administrator. Slaves. . Chattels. Assets. Creditors. Lien. Residuum. Es-cheat. Statutes.</p> <p>Complain ant’s Bill.</p> <p>©efendant’s answer.</p> <p>The evidence.</p> <p>Bill .dismissed.</p> <p>The question.</p> <p>A slave not subject to es-cheat, but ve»ts in Administrators or executors as assets lor the benefit of cn ditors. Act of emancipation having passed, the subject of the act to be deemed free, until disfranchised. The liberty of a person of color thus situated, cannot be questioned collate rally, but only, by one asserting a ris>ht of property, or a lien.</p> <p>Administrator having assented to the act of financipiuion. cannot urge any i-rsonal right to the party emancipated.</p> <p>The interest which is deri-, ved by the plt’-f in error, under the act of assembly, to the estate of the intesta to. Difference between real and personal estates.</p> <p>The act declaring slaves shall not es-cheat, provides that they shall go as e.nattels. Personal property of one dying intestate and without heir, is derelict.</p> <p>Administrator not responsible in •son °for estate of ¡riiest-ite dying with-when^noh estate has been approbeing des°ignated to receive; other-may remain unanpropriated.</p>

<p>Chancery.</p> <p>Case 11.</p> <p>Writ of error to the Bourbon Circuit; George Shannon, Judge.</p>

<p>Writ of error coram vobis. Assignment of error. Demurrer. Plea. JVotice. Supersedeas. Statute.</p> <p>Statement of the oas6,</p> <p>Rendition of» or against a ¡^*:“s facti on)y t0 necorrecteri bJ "r’to! m!^s’</p> <p>Tho ®tat“te not apply To tnode of oarrecting errors cluing’before judgment; therefore, no-cation ¿This case not necessary. ,</p> <p>Demurer to ment of^error iu the court Relow should override" When first process erroToond Tod ecss correct, ' and executed in time, irregularity no error.</p> <p>Obligor in replevy bond, not estopped from correcting errors which occurred prior to judgment</p> <p>Writ of error comm vobis, i.-suirig prior to return of first execution in replevy bond in time.</p> <p>When error in fact well assigned, if sufficient, and its truth questioned, it should be traversed, & demurer proper when insufficient. Demurer admits that which is properly pleaded</p>

<p> Covenant. Warranty. Plea. Demurrer. </p> <p>Statement of the pleadings. .piea, that prior to the ^actfon for breach of covenant of g®»eral war-^ venan tee° had conveyed the ^nd to ano^ba/unless it appear froca the plea deed is valid-,</p> <p>Profort of a deed and allegation of its operation, without making the deed a part of the record, no evidence of its contents or its effect-.</p> <p>•Petition for a re-hearing,</p> <p>Petition for a. re*b*arinS,*</p> <p>Petition for a re-hearing.</p> <p>Rules in pleading. What necessary to beset forth ia a plea.</p> <p>Averment that King ^eland ”*inferenoe of plaintiff, nat ^omt. tho J!0^ 0 written instrument is the^ourt,*0 and not ex-bibited, pioytVvriiibe understood in their popular, ^¡hnical^ sense.</p> <p>Def’t permitted to amend bb plea in the court below.</p>

<p> Agent. Possession. Tenant. Corporate Seal. Authert3, tication. Jury. Instruction. Traverse. Waiver. </p> <p>Statement of the ease.</p> <p>dif‘,ter' the creflibility and wboii" conflicting, When the the court ’ may instruct hypotheti- • 0 U</p> <p>When tenant accepts poscorporation* and recognizes its ownertersnoVwhetherth* individual who qgent,itis the possession of the corporation.</p> <p>Petition for a re‘ eannS-</p> <p>re-heahingC a</p> <p>°r a</p> <p>Petition tor a re-hearing.</p> <p>p itj, fg.^earin”.1 °</p> <p>Le“or a ie-heanng.</p> <p>finding of either is sufficient. in a warrant entr ^ndde tainer,the</p> <p>Traverse puti ofthe inquest, and is a waiver of all írreguIan</p> <p>The force intended by the statute, is an entry or a detainer against the consent of the possessor.</p> <p>(¿mere. Does a traverse dispense with the necessity of a judgment, upon the verdict before the justice of the peace.</p>

<p>Chancer*.</p> <p>Case 15.</p> <p>An Appeal from the Bourbon Circuit; George Shannon, Judge.</p>

<p>Covenant.</p> <p>Case 16,</p> <p>Writ of error to the Clarke Circuit; George Shannon, J udge.</p>

<p>Chancer*.</p> <p>Case 17.</p> <p>Appeal from thé Nelson circuit; Paul I. Booker, Judge.</p>

<p>Evidence. Scienter. Suppression of truth. Injunction»-.</p> <p>Evidence that the mare was unsound wh.-n sold to the complainant, not sufficieut. If the scienter and fraudulent concealment had been established; as th»re wa9 an offer to return the mare relief would have been granted.</p>

<p> Sheriff. Capias ad satisfaciendum. Special bail. Surrender. Statute. Schedule. Justice of the Peace. Insolvent debtor’s oath. Discharge. JVezo -trial. Bill of exceptions. Practice. </p> <p>■Action on the case against sheriff, for permitting the escape of a debtor surrendered-by special bail, and ordered into custody-by the court. Sufficiency of the declaration examined.</p> <p>The averments show a good cause of action.</p> <p>Special bail not responsible since the act abolishing theca:sa?</p> <p>That act examined, discussed and f construed.</p> <p>This case provided for by the 3d section of the act; and the debtor might have been discharged by a single justice of the peace, without surren-' dering a schedule and tailing the oath of an insolvent debtor. Nevertheless the sheriff is responsible. Ita lex scripla f.sl.</p> <p>instructions asknsel>^orhe the defendant and overruled by the court.</p> <p>14th section of the act óf 1796¡ I. LitwgV^ter. prated,</p> <p>^g°e correct when a new ’ trial is asked refuse(b the^pfnion0 of the court overruling yet^fthT’* evidence be-spread upon by^m^rfex ception, if it appear from ^a^ane1 trial ought to have been 4ae take exception to the 0Pjm.on refusing the new trial, is ¿ourts'have a discretion, as to. time be allowed to prepare A bill of exceptions, os well as to the time when any point may be ruled,or question determined. The bill of exceptions not being signed in the same term at which verdict is rendered, does not vitiate. The points presented in the progress of a cause must be noted, and the right to except reserved.</p> <p>Sufficiency of the evidence examined.</p> <p>What requisite to create liability, in an officer for an escape. That the principa i was prayed in custody by bis bail, insufficient. The capture, or the actual custody of ihe person, by the officer should be provedin order, escape^no'1'1 such proof,</p> <p>Judgment-&. mandate of e 00urt'</p> <p>Petition for are-hearing,</p> <p>Petition for a re-h earing.</p> <p>Petition for a re"hearin°'</p> <p>Petition for re-hearing. »</p> <p>Petition for a re-hearing,</p>

<p> Parties. Injunction. Dismissal without prejudice. Píocess. Service. </p> <p>Statement of fasts.</p> <p>Complainant’s Bill.</p> <p>Answer of Marshall.</p> <p>The evidence Subpcena off Fowler not served.</p> <p>Complainant’s bill dismissed with costs.</p> <p>Agreement alleged, noí certainly-proved, bat rendered pro bable; effect if proved.</p> <p>Proper par» ties not made</p> <p>When a complainant, in chancery, shews good cause for the interposition of the ch ancellor; and an injunction» granted,is perpetuated in part;it ir error to decree costs against him.</p> <p>It is the duty of complainonf to make pr-.per parties arid have the process ■executed. When neglected, not cause of absoblute dismissal q£ the bill.</p> <p>Decree and mandate.</p>

<p> Plea. Set off. Replication. Demurrer. Amendment. Continuance. Practice. </p> <p>Warrant, judgment of justice of the peace Appeal to circuit court. Declaration.</p> <p>Plea of set off.</p> <p>Replications tendered.</p> <p>Objected to & rejected..</p> <p>Plaintiff demurs; demurrer sustained.'</p> <p>Plea amended'</p> <p>Continuance moved by plaintiff and' refused.</p> <p>Judgment foE. want of replication.</p> <p>The object of-pleading to bring the controversy to a close, and reduce the contest to a point Two replications to a plea, or two joinders to a replication, not admissa* • ble.</p> <p>When it doeaj not appear from the record, that an amendment is in so essential a point as to constitute surprise; the the court below may have sustained a demurer, before amendmeni, the court of-appeals will not infer that the amendment was ?o essential, or in a matter so material, as to consider it error in the court to have refused a continuance.</p> <p>No presumption indulged in favor of a party, whose d--ty it was, aud who bad the power to make the faot appear.</p>

<p>^Jovehaht.</p> <p>Case 22.</p> <p>ISrror to Montgomery Circuit; Silas W. Robbiks, Judge.</p>

<p> Domestic bill of exchange. Notice. Non-suit. Instructions. Drawer and drawee. Allegation and proof. </p> <p>b^ciarkeln favor of Castlemañ.</p> <p>Presented & Proteste • ted^foríhe'amount of the order, and</p> <p>The declara-’ ^ned^uffioient. '</p> <p>Failure to shew notice the^rawerof a domestic bi'l of ex-lance or nonpayment; or {^failure *¡8 goud cause’ for non-suit.</p> <p>But if non suit refused, and plaintiff afterwards shews that drawee had no funds of drawers, the defect, is cured, and refusal to instruct, though at the time erroneous, no cause for reversal.</p> <p>Drawee having no authority to draw, nor tunds in the hands of the drawer, is not entitled to notice.</p> <p>Thp rieht of John Clarke to draw upon. Fisher, and of Castleman to sue investigated.</p> <p>John Clarke no right to draw.</p> <p>Castleman’s cause of action was good against John Clarke; affirmance.</p> <p>Petition for a re-hearing.</p> <p>Petition for a ^-hearing.</p> <p>Petition tor a re"^uar*n®‘</p> <p>Petition for a re-hearing.</p> <p>The allegations in the declaration, did not permit the proof of no fund in, the hand» of drawee; the admission of such proof erroneous.</p> <p>Judgment & mandate.</p>

<p>Changer*»</p> <p>Case 24.</p> <p>Error to the Warren Circuit; Henry Broadnax, Judge.</p>

<p> Ejectment. Occupant law. Commissioners. Habere facias possessionem. Restitution. </p> <p>When occupant, after having commissioners appointed, fails for nine months, to cause them to act; the court will set aside the order appointing them, and grant to the suceessful claimant a writ of possession.</p> <p>(¿ua“.re. Whether supersedeas obtained aft.-r writ of possession executed, authorizes restitution?</p> <p>There having been no error in the proceeding?, by which {lord was putin possession, awarding the writ of restitution was wrong.</p>

<p>Chancery.</p> <p>Case 26.</p> <p>Error to the Jefferson Circuit: Henry Pirtle, Judge.</p>

<p>Parol evidence. Written instrument. Fraud. Mistake» Depreciated bank paper. Sale at auction. Currency. Dollars.</p> <p>Statement of the case.</p> <p>Complainant’s bill charges sale by adm’r of intestate’s estate,to have been for csm’th’s bank paper; but noto “inadvertantly” exesuted for dollars.</p> <p>Def’s answer lhhe • beeVfor piper, or that the n°te was ^ecuied1.”^</p> <p>Examination of the deposithe" bill,</p> <p>Testimony in support of the answer.</p> <p>No immoncileable distbePde°osin tioss.</p> <p>The views of the administrators.</p> <p>Decree of the circuit court.</p> <p>Parol evidence competent to prove fraud or mistake, in the execution of any written instrument.</p> <p>The allegations of the bill insufficient.</p> <p>The fraud or mistake must be in the execution of the instrument, for parol proof, to contradict the terms of it, or «ary its stipulations.</p> <p>Proof of paper consideration, of a note for dollars, does not per se, prove a mistake or fraud.</p> <p>For parol evidence to alter or modify the terms of a written instrument; it is necessary to establish some fact independent of the consideration, establishing fraud or mistake.</p> <p>•No proof m mi-take6or'"3 fraud, except what is dcriterm^orthe6 sale and the consideration of the note, deemed'siiffi1-6 cienttoexonerate the theTe^aUd^1 feet of his written stipu‘^loIlars°”^a^</p> <p>Decree reversed, and cause remanded.</p> <p>Petition for a re-hearing.</p> <p>Petition for a re-hearing.</p> <p>Petition for a re-hearing.</p> <p>Petition for a re leariug.</p> <p>Petition for a re-hearing.</p> <p>rehearing*1 &</p>

<p> General court. Jurisdiction. Statute. Interest. </p> <p>Since the act of 1825, the general court has no jurisdiction for a less sum than $500.</p> <p>It is error to give judgment for interest upon a note, executed in another state, unless the rate of interest is proved.</p>

<p>Trespass.</p> <p>Case 29.</p> <p>Error to the Estill circuit; George Shannon, Judge.</p>

<p>Debt.</p> <p>Case 30.</p> <p>Error to the Madison circuit; George Shannon, Judge.</p>

<p>Bond. Evidence. Affidavit. Measure of damages. Ñero trial.</p> <p>Statement of the case. Verdict for $500, and judgment.</p> <p>Motion for a new trial overruled.</p> <p>Evidence in support of the verdict.</p> <p>The criterion of damages.</p> <p>In oases ex contractu, when a new trial should, be granted.</p> <p>When def’t discovers an alteration on the face of the instrument tendered, at a period so late that he can neither plead an additional plea, nor move a continuance, it is good cause for a new trial.</p> <p>Judgment* mandate.</p>

<p>Chancery.</p> <p>Case 32.</p> <p>Error to the Mason circuit; William P. Roper, Judge.</p>

<p> Notice. Depositions. Surprise. New irial. </p> <p>Notice to take depositions insufficient.</p> <p>To reject without notice, depositions which had been read without objection on a former trial, is such surprise as justifies a new trial.</p>

<p> Allegations. Bill. Surprise. New trial. </p> <p>When (he allegations of a bill for a new-trial are such as, if proved, would justify a decree for complainant, the defendant should be compelled to. answer.</p> <p>Petition for a re-hearing.</p> <p>Petition for a re-hearing.</p> <p>Petition for a re-hearing.</p>

<p>Replevin.</p> <p>Case 35.</p> <p>Error to the Madison Circuit; George Shannon, Judge.</p>

<p>Dower,</p> <p>Case 36.</p> <p>Error to the Livingston county court.</p>

<p>Covenant. Indeperulant. Pleas, Consideration. Failure. Demurrer.</p> <p>i'ovenaut on piomise to deliver whiskey. Tiie ph-as. JDomnrrers, & sustained.</p> <p>Two first picas insufil«■•ien!.</p> <p>The cove- . nants imleeither par^can mainiain a« action</p> <p>The third p*ea sood*</p> <p>jt is 8„ffiCient to allege gen-procured by*8 fraud of covenantee'</p>

<p>Proceedings against a clerk, with a view to remove him from office, for breach of good behaviour. Upon a trial on the merits, the clerk was removed.</p> <p>Statement of the case.</p> <p>Summons and charges.</p> <p>Evidence.</p> <p>Holland’s report to court.</p> <p>it. Thompson’s evidenc.</p> <p>The order book.</p> <p>The entry in the minute boollJ</p> <p>The nature of the minute book.</p> <p>The minutes are no record until transcribed, in extenso, upon the order book and signed by tho judge.</p> <p>Eyle’» evidoDOC-</p> <p>Foot of the order of June, 1821.</p> <p>F ord’s evt denoe.</p> <p>Evidence in support of the second charge</p> <p>Third charge not supported ■ by the evidence.</p> <p>if the act per sc, be a breach of good behaviour, (as it may be) the motive will not be investigated.</p> <p>Petition for a re-hearing.</p> <p>Petition far a re-hearing.</p> <p>'pet;ti ior re-hearing,</p> <p>Petition for a re-hearing.</p> <p>Petition for a re-hearing,</p> <p>Petifion fora re-hearing.</p> <p>petilion for j re-hearing.</p> <p>PctitiorTfbra re-hearing.</p> <p>for re-hearing.</p> <p>Petition for a re-hearing.</p> <p>pet¡t.inn fora re-henring.' "</p> <p>Petition for a Te-jiearing.</p> <p>Shearing,</p> <p>Petition for a id-hearing.</p> <p>Petition lor a re-hearing.</p> <p>Petition for a re-hearing.</p> <p>petition for a re-hearing,</p> <p>Response of Robert» petitionfor a re-hearing,</p> <p>Response of juilire Roberson to the pe'ition for a re-hearing.</p> <p>¿p’ap“se af ' j,K]ge Jtr.bertson to the</p> <p>se of judge Robertson to the petition fora re- earing.</p> <p>Response of judge Robertson to the petition for a re-hearing.</p> <p>R, • ons > o7 judge Robertson to the petition for a e- e ring.</p> <p>Response of judge Robertson to the petition for a re-hearing.</p> <p>Response of judge Robertson to the petition for a re-hearing.</p> <p>n?p q{ jadge°Robertson to the petition for a le’ eanng'</p> <p>” ^se f ' jud^e son to the petition fora fo- earing,</p> <p>of judge Itobertson to the P^tíor! f°r q eann«’</p> <p>Response of judge Robertson to the petition for a ra-hparing.</p> <p>Resp~nseof judge Robertson to the re-hearin°[a</p> <p>Response of judge Robertson to the petition for a re-hearing.</p> <p>Response of judge Robert-' son to the petition for a re-hearing.</p> <p>Response of judge Robertson to the petition for a re-hearing.</p> <p>Responso of judge Underwood to the petition for a re-hearing.</p> <p>Responso of judge Underwood to the petition for a re-hearing.</p> <p>Response of judge Under-Wood to the petition for a re-hearing.</p> <p>ftesponse of judge Underwood to the ro-hearin°r a</p> <p>Response of judge Underwocid to the petition for a re-.hearing.</p> <p>Res onse of judge Underwood to the reheari/0™</p> <p>Itqspbnsb of judgp Underwood to tho petition for a re-hearing.</p> <p>Res onsn of judge Underwood to the petition for a re- earing,</p> <p>Rcgnga 0f judge Underwood to the a-</p>

<p> Administrators with the will annexed. Fraud. Measure of responsibility. Negligence. Securities. Publication. Absent defendants. Jurisdiction. Unknown heirs. Statute. Practice. Non-residents.t </p> <p>Complainanfs bill,</p> <p>Amended bill.,</p> <p>Answers by Sofondantsf</p> <p>Pacts proved .in the cause.</p> <p>Decree of the circuitcourt</p> <p>-So decree deíedVaiñst a party, unless there , tuafo^con60" struotive°service of proceS8“</p> <p>The statute of l8*?'’1 Di* fating p’rooee" ding8inChy. vs. unknown affidavit?11168 »</p> <p>interest tin payment upon aggregate 1000005.’6r"</p> <p>Deoree againstadm’r neons unless fraud or proved;</p> <p>Then no greater responsihility than the caused.‘nJur7</p> <p>An ai1min!?' blefunlesVht* a°t with bad faith.</p> <p>Qucre. Doestke statute of 181°’ extend" ing the power oí administrators with the will annexed, operate on such as obtained administration prior to the date óf the act.</p> <p>If testatot devise the sale of land for which he holds a bond for a conveyance; it is a determination of his election, and controls his representative to’require a specific performance.</p>

<p>Question UPON A VISE.</p> <p>Case 40.</p> <p>Appeal fro.m the Trigg circuit; B. Shackleford, Judge.</p>

<p>Debt upon injunction BOND.</p> <p>Case 41.</p> <p>Appeal from the Christian Circuit; B. Shackleford, Judge.</p>

<p>biaBT oh ÁD-170MINISTRA-838p0a,s B0jfDj</p> <p>Case 42,</p> <p>Error to the Jefferson Circuit: Henry Pirtle, Judge.</p>

<p> Execution. Replevy bond. ¿Appeal. </p> <p>Question stated.</p> <p>Not error to issue an execution within the time given to execute an appeal bond.</p> <p>Granting an appeal does not, ipso facto, suspend a judgment or decree; executing the bond does.</p> <p>Optional with the party praying an appeal, to execute bond os abandon his appeal.</p>

<p>Chancery.</p> <p>Case 44.</p> <p>Error to the Adair circuit; Benjamin Monroe, Judge.</p>

<p> Ejectment. Evidence. Bill of exceptions. Presumption. Practice. Mezo trial. </p> <p>Statement of the case,</p> <p>The court oanno.tre" ment unless error appear *he record,</p> <p>Where no evsumption^n" favor of the ?0,,r.ts ,hay-t"o¿U-S-I<!'_</p> <p>Rulo of practice proposed and advised.</p>

<p>Trespass.</p> <p>Case46.</p> <p>Error to the Meade Circuit: Henrx Pirtee, Judge.</p>

<p>Case.</p> <p>Case 47,</p> <p>Error to the Madison circuit; George Shannon, Judge.</p>

<p>Petition & SUMMONS.</p> <p>Case 48.</p> <p>Appeal from the Jefferson Circuit; Henry Pirtle, Judge.</p>

<p>Assumpsit.</p> <p>Case 49.</p> <p>Error to the Knox Circuit; Joseph Eve, Judge,</p>

<p>Assumpsit.</p> <p>Case 50.</p> <p>Error to Montgomery Circuit; Silas W. Robbins, Judge.</p>

<p>motion.-</p> <p>Cae 51,</p> <p>Error to the Clarke Circuit; George Shannon, Judge,</p>

<p> De facto. De jure, Constitution. Legislature. Appeal, Dismissal. Office. Officer. </p> <p>Statement of the facts.</p> <p>education made and mode of solution.</p> <p>There can be k“*one ?ourt An& office* facto cannot tion?°niVis'a eoleeism. It °nl7 result*. ty°,™ hereS91" there is a to-subversion government and á usurpadon of all the While the executive and legislative department remain, there /a^0 jud^ciaf department, or head of. imless it also be so dejwe.</p> <p>Barry, &c, who claimed to be judges under legislative act, hud no power; all their acts, as well as those of the pretended clerk* were null and void. They were neither officers de facto nor dejure.</p>

<p> Ejectment. Judgment. Scire facias. Revivor. Terre-tenants. Heirs. </p> <p>To revive a judgment in ejectment, againat two, one of whom has died ,the scire facias must issue against the heirs of the deceased, and the ten e-tenant and surTiror.</p> <p>A scire facias, to revive a judgment in ejectment, must show that the term has not expired.</p>

<p> Bill to. foreclose a mortgage. </p> <p>Statement of complainant’s bill.</p> <p>coarté of^e</p> <p>W}iej,a a}) al., legation rests in theknowdo not deny it, it must be considered as a nu e .</p> <p>Decree of the courtbeI°w.</p> <p>Iftehderbave a probase money, and the purchaser j^d^upona* bill, by mortgagee, to ^^bo’ultf decree a sale, andappropriate th® P™‘ discharge the lien of the and taortgage.</p> <p>a Perso1}. or having (be legal title to real property, stand by and 3ertthmort°" |&gid orsold, and do not assert bis the mort^arn gagee or purohaser, be is, considered as waiving his lien.</p> <p>If a partner “°rtg?g.e Ms partnership 6 property, to indemnify booomesSinsolvent, the other partner the property6 from the object of the to& the discharge of the debts °f t[ie finn“</p>

<p>DlSCONTJNtr-ANKE.</p> <p>Casa 55.</p> <p>Appeal from the Woodford County Court.</p>

<p>Ejectment».</p> <p>Case 56.</p> <p>Appeal from the Jessamine Circuit; W. L. Kelly, Judge.</p>

<p> Execution. Sheriffs’ conveyances fraudulent as to crediditors. Statutes. Mortgages. Sales. Instruction. Evidence. </p> <p>Mortgages to Carneal and C. Johnson, by James and R. Johnson.</p> <p>James Johnson’s mortgage to Car-' neal.</p> <p>.‘amos Johnson remained in possession , of mortgaged property.</p> <p>His condition at the date of the mortgage.</p> <p>The depositions.</p> <p>Equity of redemption in all the mortgaged property sold & purchased, by Wm. Johnson, son of James.</p> <p>Sheriff’s deed William'.</p> <p>Bucklin issues to the^heriff5 and sheriff’s return,</p> <p>Condition of P10Petty*</p> <p>Surf against the sheriff for a false return, Instruction ^B|" given by the circuit court</p> <p>If any cir-°”^e^^hioh the law would adjudge, per o^ro^whioh the jury might rationally infer fraud, as between the parties, to the mortgage & the purchaser of the equity & creditors, the instructions erroneous. Peremptory instructions only allowed when the evidence is clear and all on one side, even then it is more correct to instruct hypothetically.</p> <p>General prinnounce/by tbe court/</p> <p>Mortgagor remaining in possession of mortgaged property, before condition broken, is not evidence of fraud. It may be after condition forfeited.</p> <p>The jury have the right to weigh and determine the character and credibility of the testimony, when various or contradictory, free from the control of the court. Where pl'tff. has directed' the sheriff to levy upon property of the def’t. in his possession, tho’ mortga- ' ged and equity of redemption sold, and he refuses; unless indemniOed, and returns ‘no property,” sheriff is responsible for a false return, if the mortgage or sale of equity of redemption be fraudulent ns to creditors, tho’ pH’if. refused to indemnify. No claim to indemnity until a jury has found the property not subject.</p> <p>Petition for a re-hearing.</p> <p>Petition for a re-hearing.</p> <p>Petition for a re-bearing.</p> <p>Petition for a re-hearing¡</p>

<p> Jurisdiction. Constitution of the United States. Act of Congress. Ejectment. Former judgment. </p> <p>Where a chinen of'another state is sued in a court of Kentucky, to aVail himself of the provision of the constitution of the U. States and not of congress authorizing the removal of suoh Cause into the federal court, such applicant must be proved to be a citizen, of another state, and the application for removal, must be made dating the term at which suoh applicant enters an appearance;</p> <p>To a recovery in ejectment, paramount title in .,tlie pl’tfi'. anti possession in tho deft. at the lime of service of the copy, arc requisite. A record of a former judgment, in favor of dePt. vs lessor of pl’tff. ao bar to .nU’ffs. recovery, unless connected with such adversary possession, as tolls his right of entry.</p>

<p>Chancery.</p> <p>Case 59.</p> <p>Appeal from the Jefferson Circuit; Henry Pirtle, Judge,</p>

<p>Injunction bond.</p> <p>Case 60.</p> <p>Appeal from the Christian Circuit; B. Shackleford, Judge.</p>

<p> Revivor. Scire facias. Parties. Restitution. </p> <p>Statement of the case.</p> <p>Scire facias, for restitution admitted as ü correct, tho! unusual njode When adopts correspond w¡th the record: all perbten'evicte^should have ’ been pl’tffs.</p> <p>^|.ere" judgment in ejectment, J^wversajl 0f flrst rev;_ vor: error to tode" fendants, plaintiffs.havin? obtained lllZTfadJ. The second revivor might it is obligatory upon the courts‘</p> <p>Restitution, after reversal of judgment, not a matter of right; but dependant upon the sound discretion of the court;</p>

<p> Practice. Chancery. Damages. Judgment. Costs: Dissolution of injunction. Jurisdiction, Fraud. </p> <p>Statement of the case.</p> <p>Dudley’s noté tóM‘Crae en</p> <p>Mills’s bill v3. M’Crackeh.</p> <p>order of circuit court.</p> <p>Hampton acsignee, &o. sues in cove-note,"and bae judgment W. Dudley,</p> <p>Dudley’s anBwer) a!}d crossbil!"</p> <p>Decree of the court.</p> <p>Perpetuating injunction, a8 to $12, error; Hampton being no party to the order Under which it was paid.</p> <p>Party having .complete defence at law, and neglecting to avail himself of it, can not apply to the chancellor for relief, unless he shew satisfactory excuse for not defending at law.</p> <p>■ Erroneous' judgment, so long as unreversed, oblig-, atory and not to be controlled, unless for fraud in its obtention.</p> <p>Upon dissolution of injunction, he should pay-costs anil damages.</p>

<p>Debt.</p> <p>Case 63,</p> <p>Error to the Anderson Circuit; Thomas M. Hickev, Judge.</p>

<p> Mortgage-. . Mortgagor. Mortgagee. Possession of Mortgaged property. Deeds of trust. Fraud. Registration. JYotice. Statute. </p> <p>J?irst bill.</p> <p>Sedond bill,</p> <p>Dates of Heeds of trust to Head, Hobbs & Co. Ward’s claim Decree of the circuit court.</p> <p>The rule, that if possession remains with the gantor, iii am absolute deed or bill of sale, such deed or bill of sale is fraudulent, per se, as to purchasers & creditors, does not apply to mortgages, deedá of trust, or conditional sales.</p> <p>Possession of mortgagor, is not, per sei fraud” when mortgage, or °.ther condiiiTthe*3 beginning, it will continue good, in law, notwiihstendP°s“ mortgagor or vendor.8</p> <p>Heed of &eoo’dedar ed vaiid. Hqv.ing been recorded in ThTnecessity of actual notice,</p> <p>An act of the ^ich *0*1 rates upon" vested rights, °ruP°n°on3pectíve, unless expressly *° “^ra' ^old^if itirij-' pair the obligation of contraéis.</p>

<p> Usury. Statute. Plea. </p> <p>Character of suit.</p> <p>Def’ts. plea.</p> <p>Demurer sustained and judgment for plaintiff.</p> <p>If the whole consideration of an instrument, bill, bond, note or deed, be usurious, it is yoid. The act ofl8l9 does not ap- ?'?*</p>

<p>Chancery.</p> <p>Case 65.</p> <p>Error to the Henderson Circuit; 'Adney McLean, Judge.</p>

<p>'sCim facias</p> <p>Case 66.</p> <p>Error to the Christian Circuit; B. Shackelford, Judge.</p>

<p>Debt.</p> <p>Case 67.</p> <p>Error to the Mason circuit; Wm. P. Roper Judge.</p>

<p> Sergeant of the Court of Appeals. Statute. Costs. Security. </p> <p>The deputy tb,e0sfej^e of appeals, collect-, ed costs upon BB replevy0** bond, and failed to pay rJndé^theseCurity of the sergeant re-the ao’t) g p¡T gest, 1128, bb“ ?eantj pro. hibits his colThecondition 0f official bond not bro-. ken’</p> <p>Execution being on replevy bond not material, The court, will inspect the whole proceedings.</p>

<p>Defendants. Process. Service. Appearance. Practice.</p> <p>Character of action.</p> <p>Assignment of errors.</p> <p>Three persons sued; record; “the defendants appeared ;” process returned executed on but two; ruled; the record does not prove the appearance of the third, and he not having-been served with process, error to render judgment against him.</p> <p>Unless intrinsic evidence of diminution. court will not 'ex ojfioio, order a certiom. n.</p>

<p>Chancery.</p> <p>Caso 70,</p> <p>Error to the Jessamine Circuit; W. L. Kebby, Judge.</p>

<p> Orphans. Apprentice. Statute. County Court. </p> <p>It is error in the county court to bind out any orphan or poor child, under the statute of 1793, 2 Dig., 1040, until the parent, next friend, ^eenpursued, or person having the care of such orphan or child, shall have been summoned, and makes default, or fails to shew cause against it. The record must shew the -sta-</p>

<p>Bastard V,</p> <p>Case 72.</p> <p>Error to the Henry County Court.</p>

<p>Covenant,</p> <p>Case 73.</p> <p>Appeal from the General Court; Henry Pirtle, Judge.</p>

<p>Practice. Pleading.. Demurrer. Evidence. Jury. Verdict. JYew trial. Instructions-.</p> <p>History of the pleadings.</p> <p>Jury and verdict for def’t.</p> <p>Motion for new trial by pl’tff., and - overruled.</p> <p>The errors assigned..</p> <p>pleadings,</p> <p>Circuit court has discretion the thTpardes, uncontrolab,f> ?n,es.8 j^aticebe0" done‘</p> <p>If a record of¿encelonot conduce to sustain ?r de‘ ^reject Tt*** ’ noterror, though bearlies p</p> <p>When more than one issue, to, swear the jury to try ulke issuev- not er•rbr.</p> <p>The hypothetical instruction given not objectionable ; to have instructed the jury absolutely would have been error*</p> <p>When the evidence is such, that a jury might find forpl’tif. or def’t., no matter what the verdict, the court will not disturb it.</p>

<p>Trespass.</p> <p>Case 75.</p> <p>Error to the Fleming Circuit; W. P. Roper, Judge.</p>

<p>Assumrsm</p> <p>Case 76.</p> <p>Error to the Franklin Circuit; Henry Davidge, Judge.</p>

<p> Fraud. Purchaser with notice. Equitable title. Legal title. Conveyance. Commissioner. </p> <p>Statement of facts alleged in complainant’s bill.</p> <p>Bill taken for confessed against Campr bell.</p> <p>Johnson’s answer.</p> <p>Decree of (he circuit court.</p> <p>.in a suit against the holder of legal title, acquired with notice of the prior equity of cempl’nt. not necessary that compl’nt should prove payment of the consideration, when his vendor is silent.</p> <p>Not error, in a decree for title to land, to appoint commissioners to make conveyance, in vacation, upon failure of him against whom decree is rendered, otherwise, when the decree is for a deed upon failure to pay money.</p>

<p> Non-Resident. Defendants. Publication. Revivor. Practice. Parties. Specific performance. Compensation in damages. </p> <p>Statement of facts.</p> <p>Compl’nt’s. bii].</p> <p>Amended bill,</p> <p>Decree of the circuit court.</p> <p>Publication against non resident, for 8 weeks, not sufficient; it should be for two months.</p> <p>Revivor, by an order, not good, unless the decedant had answered There must be bill of revivor and notice.</p> <p>If a part of the def’ts. require proof of the allegations of a bill, there can be no decree against them, without sufficient proof. A, claiming prior equity, sues B, the holder of legal title; to recover against B, A must prove that B is a purchaser, with notice of his equity.</p> <p>Before the chancellor will interpose to disturb long enjoyed security of possession, tjie right of compl’nt. to specific execution must {je made out in every particular.</p> <p>The decree reversed, with directions to give the complainant time to bring the proper parties before the court, and proceed, de novo, or have his bill dismissed without prejudice.</p>

<p> Commonwealths paper. Current money. Mistake. Fraud. Parties. Dismissal without prejudice. </p> <p>gill tobé felieved from a np0te n>r icur. rent money;’ t'hat^' t[le c’0ns/deraturn was comnwmvealth’s paper'</p> <p>Def’ts. aiiswor‘</p> <p>To justify the admission of ^ony, ¡neón', tradiction to ^ stiPula^°¡ue°n instrument, fraud or in lts eS-be'aneged”USt</p> <p>The security to a note should be artseekh^a revision'ofa modification of the terms ofthenote.</p>

<p> Appeal. Final decree. </p> <p>Statement of the case.</p> <p>No appeal or writ of error lies, unless the judgment or decree be final.</p> <p>This decree not final.</p>

<p> Administrator. Security. Counter security. County court. Commissioner. Distributees. </p> <p>Statement of the case.</p> <p>Compl’ts bill.</p> <p>Decree of the court.</p> <p>Distributees ma'le def’ts. their answers -cross bills.</p> <p>The wife of Fielder Cross should have been made one of the parties.</p> <p>Combs’ an_ swer, across bill,</p> <p>Order of (he county court did Dot constitute Combs and O’Brien, adm’rs. nor had they any power over the estate, but to hold it for their own indemnity ; arid were responsible for any waste committed on said estate.</p> <p>The infant c“”r°¿ljul£e ,hould have been made parties-</p> <p>The decree reversed.</p>

<p> Devise. Devisee. Contribution. Measure of damages. Recovery. </p> <p>Statement of facts.</p> <p>Clauses of the “n ^iuch^the claim of Keníle¡?.V ^ wife 18 oun e</p> <p>Bill of Kennedydnd wife</p> <p>Answer of defendants.</p> <p>Decree of the circuit court, granting relief to the compl’nts.</p> <p>a deed for land transfers privity of éstate, all antenants^noí8" dent to the freehold, the oltí}e co-'extenslve with that of grantor,</p> <p>Á devise of land, by the parcel, the devisee entitled to any surplus; and if lost, to contribution from other devisees the will having charged all the estate, devised with such losses.</p> <p>■When the will (jointsout a inode, by ■which values are to be assessed, and fcontributions made, among devisees, and there are infants, bill in chancery is the proper remedy for failure to comply.</p> <p>Rents recovdevtsee°fbrthe the occupancy of the tea*ator’are to ted°by theSa' same mode of contribution io lost ^andf* It was a debt due by testacharge upon his whole estáis,</p> <p>f he vall:ie thelanr3 whets devise took effect; the measure of the recovery of the devisee, upon the loss of the laud, and the amount to be made up by contribution.</p> <p>If rent has been paid by losing land 'under this wi11» thevaltestator’s death, and from addedtothe rent paid fon the ooeupan* oy ^ *16 tes' tutor, the ag, gregate claim for indemnity and the sum to be contributed.</p> <p>Decree reversed.</p>

<p>COVEKEAKT.</p> <p>Case 83.</p> <p>Appeal from the Fayette Circuit; J^sse Bledsoe, Judge,</p>

<p> Mortgage, Conditional sale. Equity of redemption. </p> <p>Stephenson’s assignment of Fowler’s bond to Hopkins,</p> <p>Condition of Hopkins’s bond to Stephenson.</p> <p>Endorsement on Fowler’s bond.</p> <p>Whether á mortgage or a conditional sale, depends upon the facta attendant upon each case. The intention of the parties to be collected from circumstances. If Hopkins had paid the whole sum due Fowler, it would have been evi» deuce of conditional sale; not having done so, he treated the transaction as a mortgage If mortgager has received advances from mortgagee, to the value of thing mortgaged, at the date of mortgage, & has delayed to redeem an unreasonable length of time the chancellor will not interpose, to enable him to redeem, against mortgagee in possession, to the injury or prejudice of Mortgagee.</p> <p>Itis erronea^arty61*™*4 ■whose favor conveyance has beén'de creed, upon payment of money, to sum deposited in court, unless thedegedaAo the" conveyance,</p>

<p> Administration. Bill of sale. Warranty. Slave. Heirs. Devisees. Injunction. Bill in chancery. Remedy. </p> <p>Statement of facts.</p> <p>Submission,</p> <p>fj-ward ofar' 1 ca ots’</p> <p>Bill of sale froin a/'m’s. £llis’</p> <p>Ellis’s bill in chancery, with injunction.</p> <p>Answer oí dei’ts.</p> <p>When remedy at law,injunction not to be granted, except under particular circumstances.</p> <p>Construction of the bill of sale.</p> <p>whennopersonal repre-an*baa*ery1J tbe appropri. ate remedy, .compel sees to an_ swer, to the “¿¿f' for breach of covenant of the ancestor or testator.</p>

<p>chancery.</p> <p>Case 86.</p> <p>Error to the Bullitt Circuit; Paul I. Booker, Judge.</p>

<p>©asé 8Í,</p> <p>Error to the Jefferson Circuit; Henry Pirti.e, Judge.</p>

<p>Younger pa-try, filed* h?s" bill’iri chaneery, against tentee,6forPa" conveyance of the legal which at the date' of the entry, were notorious, by the appellation and description used in the entry. Ruled, that the entry was valid to the extent of the land, common to two surveys, made at the distance called for,from each spring, and that so far as the elder patent interfered with the land,thus common, to two surveys; the complainant had a right to conveyance of the legal title.</p>

<p>Wror.°f br</p> <p>Case 89</p> <p>Error to the Bourbon Circuit; George Shannon, Judge.</p>

<p>Motion.</p> <p>Case 90.</p> <p>Error to the Casey Circuit; John L. Bridges, Judge.</p>

<p>Assault & Battery.</p> <p>Case 91.</p> <p>Appeal from the Warren Circuit; Henry Brodnax, Judge.</p>

<p>Administrator. Executor. Statute. Circuit Court. Court of Appeals. Costs* - De bonis testatoris. De bonis propriis. Plaintiff. Defendant.</p> <p>Statement of casein circuit court.</p> <p>Motion made at subsequent term to quash the execution.</p> <p>When ex’r. or aclm’r. plaintiff liable for costs. I</p> <p>^*a'dni’r'defendant liable and to what níenUo be rendered,</p> <p>The 13th section, of act “t®8‘ COUrt of appeals.” Rule ^adut^a’ ?a¡nst appellants or plt’ff fu] as to appellees discretionary.</p> <p>Costs given in the court °ainst parties who would be subject to. C°urt below General rule, not to giye costs against defendant. '</p> <p>Judgment or decree against without any express directl0n t°the ;s a]wayg jntended de *onts ^iígío? ts‘</p> <p>The court at,a term, correct a judgment or <*e.ore<;’ot a pnot 611001</p>

<p>Assumpsit;</p> <p>Case 93.</p> <p>Error to the Mason circuit; Adam Beatty, Judge.</p>

<p>Chancery.</p> <p>Case 94.</p> <p>Appeal from the Jefferson Circuit; J. P. Oldham, Judge.</p>

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

<p>assumpsit.</p> <p>Case 96.</p> <p>Error to the Madison Circuit; George Shannon, Judge.</p>

<p>Mcmok.</p> <p>Case 97.</p> <p>Error to the Madison Circuit; Thomas M. Hickey, Judge.</p>

<p> Scnieevf prfféess. Sheriff’s return. Abatement. Pleas. Practice. Corporation. Independent Banks. Statutes. </p> <p>Nature of the action.</p> <p>Writ and Sheriff’s return.</p> <p>PeP®w’s letney lo xteed. Piras by DeP?w and 00 *</p> <p>Motion for “aliaaa“oa’ 0v0lr" “</p> <p>Abatement ns to Depew, pJ®0”®!?'*' menTrender^'</p> <p>Dcpew had on no right to en-a defen-t1er.hlIPself trial,con-trlry (°the 0 a i8Ib: The re" ® right'to proceed a-Woo<of iplsodfksdfjsdfk</p> <p>con-ecMn rejeotingthe j]ea«.</p> <p>it' plea rejected, though to haveSre-ar quired a deíhe'oause6*'']! rotbe^ent back for the purpose of inentonde^" murrer,entered against the n*33’ topped'by his note, from questioning the existence ^Vth'e'1" date of the note, Examination °SSPrigj¡y* Sr°_ Ltive in the Independent Bluikiy ,lf eis we[0 np. pointed, the p“:^0"¡jn0|!¡ge~</p>

<p>Appeal.</p> <p>Case 99.</p> <p>Error to the Madison Circuit ; George Shannon, Judge,</p>

<p> Bill in chancery. Non est factum. Jurisdiction. Es* toppel. Trustees. </p> <p>m ]aw,°Letoher ys. the plaintiffs in error, History of</p> <p>trustee10^8 rus ee.</p> <p>The answer of Letcher,</p> <p>Thealteraof a wri* b^taken^d-vantage of, to defeat the eery; unless satisfactory reason given, why non est factum, not Pli3aclin law* trustee;s theii- Written contract, ir?m ¿"d^Letcher partners, and demanding j^'¿har»’cd> with pay-ments made jiowird'shéws that they had credit for the Payme“ts 0e„ thg trialatlaw.</p> <p>Ewing was ■properly be- and there°Urt should have been a decree foMt-uTsum*’ ■which he had enabled Letcher to draw from the trustees Improperly.</p>

<p>assumpsit,</p> <p>Case 101.</p> <p>Error to the Madison Circuit; George Shannon, Judge.</p>

<p>Vendor. Vendee. Equitable lien for purchrse money. Publication. Non-resident.. Appearance. Purchaser without notice.</p> <p>Compl’ts. biHs</p> <p>JfheH^rs"'er pvireys.</p> <p>Bill taken for confessed nonresident?</p> <p>without tfoUpe',</p> <p>Humfiiirfeys shoilld look to if”3 gfty, against brocket havins recosved the order, held it up for several years, without any proof of Mason’s refusal or inability to pay, notice to Crocket, that the - order was not paid.</p> <p>The answer Of Price.</p> <p>The publication against Crocket, not sufficient.</p> <p>An appearance in tho court of appeals, waives the necessity of advertising, when cause remanded.</p>

<p>Indebitatus assumpsit. Work and labor, Consideration.</p> <p>InáéMlalus Whrkahd laboúr, proved thatpart of the consider-£e paidii»8 *° properly, pl’tff. cannot recover.</p>

<p>Covenant.</p> <p>Case 104.</p> <p>Error to the Nicholas circuit; H. O. Brown, Judge.</p>

<p> Powers of attorney. Pleadings. Practice. Distribution^ Competent witness. </p> <p>Nature of the cM^pieadmgs, c.</p> <p>Powersofattomey of evGFV assert díion, 0() t, tj,e aot 0fi8i8,2Dig. 1049.</p> <p>competent witnessonbehalf ofadm’r, 3Uoh eátate,</p> <p>Error to give judgment against ex’r. or adm’r. pl’tff. sueing en autre droit.</p>

<p>Specific performance. Statute of frauds and perjuries. Lapse of time. Resulting trust. Infancy. Limitation, Revivor.</p> <p>Bill of Bell’s heirs.</p> <p>Pugh’s air-8wer‘</p> <p>Proof in the cause.</p> <p>Eevivor of the suit vs. Pugh’s and Chiles’ heirs.</p> <p>Interlocutory andfinal decree</p> <p>rora,,</p> <p>Thecircumtw^oase ere-ate a result-' ing trust. No imitation ™stui trust, and the truatee»</p> <p>No limitation apar Py,6 seeking" reiief against fraud, until ara®rd iaefu]. ly discovered barred, the claim to mesxhe^noident follows the principal,</p> <p>No limitation arrant*"9* whon the right accrued tlie mfcurt”</p> <p>Statute of (,“e“ „otaPpiy to result-mg trusts, of pnor equity, will be comPelled to re'lease legal title.</p> <p>One who purchases with notice of a prior equity, not within the occupant law, nor entitled to compensation for his improvements, by the common or civil law.</p> <p>Rules for estimating rents and improvements according to the general principles of equity,</p> <p>When land is withheld, under a full knowledge of a superior equity, the occupant is bound to account for waste and deterioration as well as rents and profits, and can only ciaim the enhanced valué of the land as set off.</p> <p>No person unless a-grieved, can complain of a decree or .judgment.</p> <p>The purchase of a trustee from cestui que trust will not be enforced in equity, when the consideration ia inadequate, and the cestui que trust, was ignorant of the extent of his rights.</p> <p>When revivor by consent, decree not irregular, though no appearance, nor seryiee of notice upon those against whom revived.</p>

<p>Abatement. Jurisdiction. Plea. Consideration. Affi«. davit.</p> <p>General court, a court of limited jurisdiction and the declaration must contain such averments as will give the court jurisdiction.</p> <p>Suit on a note, must be in the name of obligee unless an existing assignment.</p> <p>The statute of Anne, uses the words, “dilatory pleas,” that of Kentucky, pleas in abatement,” when in giving affidavit.</p> <p>The lex fori, not the lex loci, controls the remedy.</p> <p>Plea which required to be sworn to, before filed, should be objected to; demurrer waives the oath.</p> <p>Error to render judgment for interest upon a note, executed in another state, unless the rate of interest be found by a jury.</p>

<p> Covenant. Declaration. Pleading. Damages. Jfew trial. </p> <p>Pl’tfis. declaration, and the covenant of defendant.</p> <p>Demurrer overruled.</p> <p>Defendant were’adjudged bad on de[í^j^ct’aná judgment for plaintiff:</p> <p>Proof in the] 0&use*</p> <p>s ¡structions ^^ant re fused. The" instructions' siven-</p> <p>Covénant“to sell for the best price that can be obtained.” Declaration must aver, that covenantor could have sold, and did not, or it is insufficient.</p> <p>A plea, in the language of a covenant to do, or to perform, averring the thing to have been done or performed, is good, and e-quivalent to covenants performed.</p> <p>No averment can enlarge the stipulations of a contract, or create a covenant by implication.</p> <p>Second plea, bads</p> <p>The criterion th/best price for which H. oould have bacoo'o/o within a relsonable time °Or leans,6expenses deducted,</p> <p>When reciprocal action for breaoh of covenant, there cannot be set-off. In what cases allowing interest discretionary with the jury.</p>

<p>Chancer*.</p> <p>Case 109.</p> <p>Error to the Woodford Circuit; William L. Kell*, Judge.</p>

<p>Covenant.</p> <p>Case 110</p> <p>Error to the Knox Circuit; Joseph Eve, Judge.</p>

<p>ÁSBTJMPSm</p> <p>Case 111.</p> <p>Error to the Fayette Circuit; Thomas M. Hickey, Judge.</p>

<p>Debt.</p> <p>Case 112.</p> <p>Error to the Eayette Circuit; George Shannon, Judge.</p>

<p>Case.</p> <p>Case 11$.</p> <p>Appeal from the Franklin Circuit; Henry David ge, Judge.</p>

<p> Statutory guardian. Prochein ami. 'Rule for settlement between guardian arid uiard. Powers of guardian to commute debts or judgments due to ward. Responsibility of guardian. Interest. </p> <p>Bill in chancery, by pl’tffs. in error vs. dePts. to account for money received by Mitchell as statutory guardian, & prochein ami.</p> <p>Resisted, ?n tbatStheU judgments for the money commuted for a less sum in horses.</p> <p>statutory guardian, or ndtheThaTa right to commute the mMte'due'38' ward or infant; ifhedo ^le for the" amount and interest; Q“erf- Whe¿y 0f debtor constitute an exoePtlon-</p> <p>The aggregate of principal and interest, due to ward, on the day of commutation, considered as capital in the hands of guardian; if his accounts not settled according: to law, responsible, after deducting legal disbursements and advances' from time to time, as made extinguishing interest first, and not compounding. (lucre. Can a guardian, on settlement, be credited for advances beyond the income-of his ward?</p>

<p>Case.</p> <p>Case 11£.</p> <p>Error to the Breckenridge Circuit; Alnev M’Eean, Judge.</p>

<p>Release. Plea. Demurrer.</p> <p>Plea of release, must shew that it was undersea!, or‘otherwise effective,, or plea insufficient.</p> <p>Suit against two, one pleads & is9ue, irregular to render judgment against plaintiffs, without trial of the issue, and notice of the rief’t. not pleading.</p>

<p>Boundaries. Mem trial. Estoppel. Deeds. Patents. Surveys. .Mistakes. Fraud. Presumption. Instructions. Exceptions.. Error*</p> <p>statement of the title of iess?rs°f p ain 1</p> <p>Date of patents,*their distances?</p> <p>Deed from patentee to “• Ander' ~</p> <p>If vendor hold two tracts of ]*” andadla certain quant;ty by metes tho’i^calHor one tract; yet if the metes and bounds run xuto the other, purchaser shall hold according to the metes and bounds.</p> <p>When the corners are destroyed by violence or time, parol proof to be admitted to point out where they were.</p> <p>The previnee of the jury td judge of the credibility of the testimony but when there is no e’ridenoe con* ducing to Sustain a verdict, the court will in* terposej</p> <p>Deeds operate as an estoppel, patents are only prima facie evidence of the facts recited, parol evidence may be adduced to contradict or control courses, distances, and other calls of a patent.</p> <p>The acts legally done on the ground, by the surveyor, constitute the survey, he may make out the certificate thereafter ; any mistake or fraud, in doing it, may be corrected.</p> <p>No fact to be presumed; which does not necessarily result from establisherl or conceded premi, ses.</p> <p>Error to instruct thejury that, unless they can precisely fix the position of a corner, they must re, cur to the ex-tention of the courses and, distances.</p> <p>Not necessary to ipahe formal motion for new trial, if all the evidence appear in t|)£ record.</p>

<p>A covenant for personal services, not assignable at law, neither ‘stipulating to pay money nor property.’</p> <p>If this covebie,‘ the deduration deMleglngVctemand, and an assignment,</p>

<p>Scire famas</p> <p>Case 118,</p> <p>Error to the Washington Circuit; W. L. Kelly, Judge.</p>

<p>Trover, &c.</p> <p>®ase 120.</p> <p>Error to the Jefferson Circuit; John P. Oldham, Judge.</p>

<p> Bill for new trial. Discovery of testimony. Negligence of Attorney. </p> <p>Statements of eorapl’nts, bill,</p> <p>Compl’ts. attorney going into trial unprepared, & suffering a verdict against his client, in his absence, no ground for ry of ne«v testimony, releyant t0 fhe mj^hthave been had on triah by no'*1" |g^nt'J¡^r w 1</p> <p>The record at )aiviand tl?e the chancery cause, do not justify dis- and judgment,</p>

<p>Writ of error. Variance. Jurisdiction. Action, local and transitory. Statute. Process to several counties. Proceedings in rem; in pursonam.</p> <p>M,Kee,s'bffi' TS. Brown,< charging fraud id a contract.</p> <p>Steps taken on the rale docket: bill taken for confessed.</p> <p>Motion to set asif fiitbh-rule anwef*, By Brown,’reídsed- .</p> <p>Interlocutory decree60^1</p> <p>Writ of error.</p> <p>Grounds far quashing writ Of error.</p> <p>A writ of error, which correctly describes the nature of the action, the parties, the court in which the Writ was pending, and wbiclTdecree or judgment was certain^lUB not necessary that it should bes0“>nHtely preclude the possibility of cortMike16* that required t0 be brought up'</p> <p>In ascertainJjJfréturn^ day 0f a wr¡t is anterior to cfifde^ none but juridical f,ays arecalou 8 e *</p> <p>the person of mnstbe'withn in the circuit, To give jurisdiction, either the thing to be acted on or</p> <p>Process may idle from the which*a" ' is instituted to other counties; but if no judgment against residentdef’t. Son be looai" it is the ex ’ officio duty of the court, to dismiss the sult'</p> <p>in°M‘K(?e’s°n bill, to give jurisdiction,</p> <p>~ ^ñv;ince and defence to the merits, aj]V^ert-° tojunsdietiontbe court subject matter in con-’art'1 ¡^sists^ fie- * cree and is refused peramotion tobe permitted to the'anjument of counsel against a de?ree’ oa,Dn°it such an assent to.the jurisdiction,</p> <p>Express con, sent cannot give jurisdiction, the tribunal not having cognizance, by law of the subject matter.</p> <p>Mandate.</p> <p>Suggestion.</p> <p>uss 1</p>

<p> New trial. Duty of Court. Condition. </p> <p>An order, lew trial,athe def’ts. paying the costs of days prior to the next term, a nullity, and the pl’tff. has a right to his execution.-</p>

<p>Occupant law of 1820. Constitution.</p> <p>The assessment of improvements, under the provisions of the occupant law of 1820, adjudged to be constitutional.</p>

<p>Chancery.</p> <p>Case 125.</p> <p>Error to the Nelson Circuit; Paul I. Booker, Judge.</p>

<p>Chancery.</p> <p>Case 126.</p> <p>Error to the Whitlfey Circuit; Joseph Eve, Judge.</p>

<p> Replevin bond. Petition and summons. Nonsuit. Di$« eretion. </p> <p>Petition and summons sustained on replevin bond.</p> <p>The court of appeals will not inteifere in cases when the circuit court has a discretion, unless exercised with manifest injustice.</p>

<p>Covenant.</p> <p>Case 128.</p> <p>Appeal from the Nicholas Circuit; H. O. Brown, Judge.</p>

<p>Petition, &c</p> <p>tlhse Í29.'</p> <p>Error to the Boone Circuit; H. O. Brown, Judge.</p>

<p> Independent promises. Allegata et probata. </p> <p>When promises independent, not necessary to right of action , to aver performance. Tho’ “allegata etprobaia'l'> may not exactly concur, if such identity as to preclude an action, for the same cause sufficient.</p> <p>PpHtion for a re-hearing,</p> <p>Petition for. a rc-heanng.</p> <p>Petition for a re-hearing,</p>

<p> Usury. Commonwealths paper. </p> <p>If lender risks his principal, upon a contingency, as the appreciation or depreciation of depreciated paper, and there is no trick or device, a contract for more than six. per cent., and the principal, in the depreciated paper, no usury.</p>

<p> Replevy bond, at whose motion to be quashed for want of .summoning all the defendants in execution. </p> <p>A replevy bond, executed by a part only of the def’ts. in an Execution, may be quashed on motion of plaintiff, but not on motion of obligors in the bond.</p>

<p>¡Chancery.</p> <p>Case 134.</p> <p>Error to the Franklin Circuit; Henry Davigde, Judge.</p>

<p> Usury. Assignable notes. Purchaser. Loan. Interest. Commonwealths bank notes. </p> <p>The purchase bie^ote^at a" discount, not usury; there jnaS,:be a reserVatfoh interest,, S.reate,r than p^r anhum:' an express contract to onVcontract for bank notes, binds</p>

<p>Debt.</p> <p>Case 136.</p> <p>Error to the Madison circuit; George Shannon, Judge.</p>

<p>Petition, &c</p> <p>Case 135.</p> <p>Error to the Woodford Circuit; W. L. Kedlit, Judge.</p>

<p> Detinue. Assumpsit. Trover. Contract. Bailment JVew trial. Affidavit. </p> <p>Statement of the! facts. .</p> <p>Verdict for plaintiff.</p> <p>Detinue may-b® “aintainanote Qr wri; cinl’a debt"' foranychattels which can be identithe pl’tff. lias aright of „ f i a te^ possession, no matter how *b^®f’t-gob-’ jesion. P°S"</p> <p>Pl’tff. may sue for breach of promise to deliver, when contract of bailment is determined, or he may bring detinue for the specific thing bailed.</p> <p>Affidavit insufficient.</p>

<p>Chancery</p> <p>Case 138.</p> <p>Error to the Franklin Circuit; Hekry Davidge, Judge.</p>

<p> Evidence. Bill of exception. Title. Verdict. </p> <p>In an ejectment, if the record do not profess fo exhibit the whole evidence, the admission of a deed as evidence, will not shake a verdict for pl’tff. thb’ it might not have been strictly ddmissible; as had it been excluded, it would only shew the pl’tff. did not derive title thro’ that deed.-</p>

<p>Assumpsit.</p> <p>Case 140.</p> <p>Error to the Montgomery Circuit; Silas W. Robbins Judge.</p>

<p>Chancery.</p> <p>14l*</p> <p>Cross writs of error ta the Jefferson Circuit; J. P. Oldham, Judge.</p>

<p> Indebitatus Assumpsit. </p> <p>Indebitatus assumpsit, fof money had & received,to pl’tffs. use, can not be maintained, where the def’t. has received part property and part money.</p> <p>If the def’t. have sold th e property of the pl’tff. for money, the action can be maintained for the price.</p>

<p>Assumpsit.</p> <p>Case 144.</p> <p>Error to the Caldwell Circuit; B. Shackelford, Judge.</p>

<p>Chancers</p> <p>■Case 143</p> <p>Error to the Caldwell Circuit; B. Shackleford, Judge.</p>

<p> Forcible entry. Warrant. Inquisition. Traverse. Judgment. Restitution. </p> <p>Warrant charges forcible ‘•entry.’» Inquisition</p> <p>finds forcible “detainer.” Error to reneer judgment for restitution</p>

<p>pEBT.</p> <p>Case 146,</p> <p>Error to the Franklin Circuit; Henry Davidge, Judge.</p>

<p> Injunction. Damages. Uncertainly. Parties. </p> <p>Injunction dissolved, duty of the court to state the rate of damages, the sum on which decreed, being stated; or if the sum be not stated,to calculate and decree the amount. Erroneous to refer, the calculation and rate to the clerk.</p>

<p>Chancer*.</p> <p>gaga</p> <p>Error to the Franklin Circuit; Henrit Davidge, Judge.</p>

<p> Sheriff. Deputy. Execution. Evidence. </p> <p>To charge a sheriff for a failure to return an execution, it is necessary to prove that the person to whom it was delivered, was his deputy. •</p>

<p> Lost Bond. Fraud. Chancery. Jurisdiction. Parties. </p> <p>A and B aré joint purchasers of land, from C; A sells his interest to D: D substitutes his bonds with C, for the price; B . nnd C lay off to D, a given quantity as his proportion. Upon bill, filed by the adm’r. of D,to have á credit for deficiency iri the land, upon the charge of fraud in representation, B, and the heirs of D; are necessary parties.</p>

<p> Writ of error. Limitation. Statute. Constitution. Jurisdiction. Covenant. Pleading. </p> <p>Limitation of writs of error, 1 Dig. 390: Session acts, 1336, p. 30.</p> <p>The act of 1827, Session joes nou-e^3 peal the act of 1816: l The"time for Suin*out writs of error, gdno^pdsr;0’a fr0m suit Nov. 1824, íoi7ls*Aprii’ ¿e computed01 but to be de-* ducted. -</p> <p>‘The duty of the judiciary' to protect private rights .and private property, from any unconstitutional invasion, by legislative enactment, whether it result from accident or (design.</p> <p>Object of the framers of the constitution, to secure the enjoyment of life, liberty & property, and the pursuit of happiness.</p> <p>The 12th and J3th sections of the 10th article of the constitution, indicate the duty to be performed by the functionaries of the government, in the protection of the citizen.</p> <p>Quere. Does not the contheuseof the disjunctive i^sec^Vart. inhibit the taking of A»s property, and giving it to B, as’Y?11 ft® of it'to pub-Ho use, with-9utconsent "aii0<n.mpen'</p> <p>The authority of the cases, Blair vs. Williams, and Lapsly vs, Brashears 4 Litt. 34 & 47, recognised-.</p> <p>Any law which would impair the obligation of a contract, would impair the contract, and equally violate the constitution of Kentucky, and of the United States</p> <p>The act of 1827, Sessioli acts, 30, does not violate any provision ol the constitution. The judgment of an inferior court, erroneously rendered, is, at all times, subject to revision & reversal, should the legislature repeal the statute limiting the time for prosecuting writs of error. Such judgment cannot constitute a property in any individual, to which he can acquire right by laps of time. It does not create a right, it merely determines conflicting claims, according to pre-existing right. The revising court inquires what was right between the parties, in the original con,’reyersy?</p> <p>The limitation, upon the time of prosecuting a writ of error, is a restriction by law, of a general right to take jurisdiction; the repeal of that limitation is a regulation by the legislature, restoring that right. The regulations of the time of suing out writs of error and the sums’ for which to be prosecuted are, by the constitution confided to the legiflainr</p> <p>filackstone’s definitian of law, not applicable to the character of our institutions, and the restricted power of the legislative department.</p> <p>“Law” is a rule of civil conduct, préscribed by competent authority;</p> <p>Tlie act of ¿ottíívest8 any right, or infringe the to9»!?*1'ost &S facto lam,” or Jaws impairiJation of-**' contract?, or impairing contracts, constitution of the United States, or of is valid.</p> <p>if replicaban put in issue,a of ^nted by^á plea, and it. be found for def’t. it is correct to enter judgment, that pl’tff.' take nothing' for breach of covenant, to which tne plea was an answer.</p>

<p> Injunction. Damages. Practice. </p> <p>The sum jipon which damages are rendered, should be as-pertained . Erroneous to leave it to the enquiry and decision of the clerk; Error to de-* cree damages twice.</p>

<p>Chancery.-</p> <p>CAse 153;</p> <p>Éffor to the Henderson Circuit; Alney M’Eean, Judge.</p>

<p>Chancery.</p> <p>Case 154.</p> <p>Error ta the Fayette Circuit; Jesse Bledsoe, Judge.</p>

<p> Jurisdiction. Statute. Evidence. Set off. </p> <p>Notice of set off tó a demand, by warrant, which would not give an appeal to circuit court, judgment for defehdant fot more than five pounds, pl’tff. may appeal to circuit court. Upon appeal from justice of the peace* appellant must prove his account,, tbo’judgment for appellee, upon set off.</p> <p>Notice of set off does not admit pl’tffs. demand, tho’ special plea of set off does.' Notice of set off only admissible under general issue.</p>

<p>Magistrate’s jurisdiction.. Statute. Commonwealth’s Banknotes. Account. '.</p> <p>In 1826,justices of the peace had no jurisdiction over accounts in cora’ths, paper, exceeding five pound. The act of 1824, Session acts, p. 397, does not apply to accounts. Where justice of the peace renders judgment for a sum greater than falls within the appellate cognizance of county court, and over which he had no jurisdiction, the party injured must apply for correction to the circuit oourt.</p>

<p> Slander. Declaration. Faulty Count. General Verdict. Statute. </p> <p>By 43d sec. of the actregujngs, i Dig. 255, general verdict upon several the oounts defective,</p>

<p>Assumpsit.</p> <p>Case 158.</p> <p>Error to the Scott circuit; J. Bledsoe, Judge.,</p>

<p> Specific performance. Constructive JVotice. Printer’s certificate. Infants. </p> <p>Covenant that deed shall be made wheD thecon‘ sideration money is paid. Payment a condition precedent. Certificate of printer, that notice against absent def’ts. had been published “nine weeks,” without date of beginning or end, insufficient. Error to pronounce a decree at appearance term. If decree against infants, time must be given ■after full age, to question decree.</p>

<p>trespass.</p> <p>Case 160.</p> <p>Error to the Montgomery Circuit; Silas W. Robbins, judge.</p>

<p>Chancery.</p> <p>Case 161.</p> <p>Appeal from the Clarke circuit; George Shannon, Judge.</p>

<p>Chancery.</p> <p>Case 162.</p> <p>Error to the Fayette Circuit; Thomas M. Hickey, Judge.</p> <p> Chancery jurisdiction. Defence at law. Injunction. </p>

<p> Specific performance. Recision. Representations. Title.. Costs. Damages. Time. </p> <p>Covenant to make a deed to .and, with special warranty, covenantor must shew a complete legal title. Bill for conveyance, if title in vendor complete, erroneous to dismiss, without decreeing title.</p> <p>If title incomplete, contract should be rescinded, or, when no fraud, time given to complete the title When complainant has a right to go. into chancery erroneous to' decree against him, costs and damages.</p>

<p>Covenant.</p> <p>Case 164.</p> <p>Error to the Oldham Circuit; Henri Davidge, Judge.</p>

<p> Sheriff. Execution. Return. Statute. </p> <p>The 4th sec. of the act of 1811,2 Dig. 1144, excuses sheriffs for failing to return execution for ‘good cause.’ When sheriff has acted in good faith, has complied with the requisites of the law in all other respects, and has actually enclosed an execution, emanating from another county, in a letter, for the purpose of having it returned in time, has put it in the post office, directed to the proper place, but has addressed it to Johnston Ross instead of Joseph Ross, by accidental mistake. Adjudged that he is not subject to the penalty of the law.</p>

<p>Trover.</p> <p>Case 166.</p> <p>-Error- to the Meade Circuit; Henry Pirtle, Judge.</p>

<p> Practice. Evidence. Joinder in action. </p> <p>If cause of action is com' píete, or has its inception before marriage, husband & wife may unite. It it accrue after marriage, husband must sue alone, if it relate to personalty. Rules of practice should promote, not dideat justice; pl’tff. not to be non-suited lor an oversight. Court should suffer a question to be asked and answered, even after non suit ordered, and exception, if tending to sustain pl’tff’s action. ‘</p>