Volume 25 — Kentucky Reports

<p>Chancer*.</p> <p>Error to the Montgomery Circuit; Silas W. Robbins -Judge.</p> <p> JYew trial. Chancery. Jurisdiction;. </p>

<p>Detinue; .</p> <p>Appeal from the Jessamine Circuit; W. L. Kelly, Judge.</p> <p> Practice. JVew Trial. Evidence. Statute. </p>

<p>Debt.</p> <p>Error to the Mason Circuit; W. P. Roper, Judge.</p> <p> Sheriff. Deputy. Sale of office. Bond of indemnity. Statute. </p>

<p>When there js ample and complete remedy at law, and the object attainable thro.’ a common law court, the chancellor will not interpose to enlarge his. power, and wrest the subject from le-jal determination.</p> <p>Covenant to P“J' f°(Fas“r' fn^’tract'o’f land, without designating time, reters to time of pay-“g”affotrhaie tract, and the value at. that time>tl)e ori" terion of damages, the price not being stipulated</p>

<p>Bill to enjoin bn0aTud-S ment at law, no bond exe-neous to per" petuate in-none having been granted, Error to give costs at law whenabal-..upon the judgment at law, after granting his credits, entitled to costs in chancery as he had equity.</p>

<p>A court of chancery will interpose to prevent the abduction of a person claiming to be free, pending the action at law, which is to decide the right.</p>

<p>Action for a devastavit, “Ne¿eymain gainst adm’r. and securities without first hxins evas~ tavit on principal. General plea., if fully administered good, upon issue def’t. must shew legal administration.</p> <p>Security not concluded as to assets, by revival of judgment a-gninst adm’r.</p>

<p>assumpsit.</p> <p>Error to the Todd Circuit; Henry Broadnax Judge.</p> <p> Assumpsit. Money had, and received. Parol contract for land. Statute of frauds and perjuries. </p>

<p>Caveat;</p> <p>Error to the Whitley Circuit; Joseph Eve, Judge;</p> <p> Statute. AffidaviU </p>

<p>If a sheriff return anexe-dorsedfnT" common’th’s. bank paper, Satisfied,’ he is concluded by hi.- return. Sfe is bound to pay the pl’tff. bank paper, no matter what he actually received. Upon failure and suit, judgment to be rendered for commonwealth’s paper.</p>

<p>Case.</p> <p>Error to the Shelby Circuit; Henry Davidge, Judge.</p> <p> Fraud. Representation. JVezo Trial. </p>

<p>When there ia no allega-court oi'equity will not zince°of the matter. (general rule, to a*1 record^ cannot be a witness.</p>

<p>Appeal.</p> <p>Error to the Ohio Circuit; Alnev M’LeAN, Judge.</p> <p> Constable. Magistrate. Appeal. Circuit Court. Jurisdiction.' Statute. </p>

<p>Chancers-.</p> <p>Appeal from the Monroe Circuit; Benjamin Monroe, Judge.</p> <p> Mortgage. Execution. Sale. Ca.veat emptor. Sheriff. Fraud. Chancery. Jurisdiction. Statute. Title. Failure. </p>

<p>In actions ex contractu, if a joint. promise, by several, bo alleged and not proved, pl’tff. must be non-suited. When tbe e-videncc is not spread upon tbe record whatever may be intended under an issue, must be presumed in support of a verdict. Assumpsit vs. two, verdict for one upon a plea of personal disability to contract, and oíSr^can'the court render judgment in tavor ofpl’tff.</p>

<p>The finder or volunteer holder of a bank note, or bill of exchange, is responsible to the owner.</p> <p>But he who pde al’(i for a valuable no recovery,</p> <p>When a verdict is report- , ed, if any one of the jury dissent, it is error to enter the verdict.</p>

<p>Motion.</p> <p>Appeal from the Union Circuit; Alney M’Lean Judge.</p> <p> Sale bond. Quashal. Obligor. Creditor. </p>

<p>Trespass.</p> <p>Error to the Montgomery Circuit; Silas W. Robbins Judge.</p> <p> Constable. Search warrant. Justification. Constitution. </p>

<p>In covenant, when the damages are liquidated, the court may render judgment without a jury. Judgment for ‘debt and interest,’ in action of covenant, not error sufficient to reverse. Magistrate no jurisdiction over covenant to do other acts, Sc pay $50.</p>

<p>Chancery.</p> <p>Error to the Hopkins Circuit; Alney M’Lean, Judge.</p> <p> Fraud. Payment. Certificate. Patent. </p>

<p>A new trial never granted upon the mere discovery of witnesses to a fact involved in the issue, and actually determined by former trial.</p>

<p>motion.</p> <p>Appeal from the Henderson County Court.</p> <p> Administration. Securities. Petition. Counter security. Summons. </p>

<p>Isrent ed for $200, without spe-time^means for a’year. Notice to New-Orleans, on a day stated, if not day6,'ona day two*weeks oib leSa1,</p> <p>Petition for * re"lieannS'</p> <p>Response to the petition.</p>

<p>Petition for a re-hearing.</p> <p>if one of several obligors pay the whole debt, he is not to be considered the as-signee of the obligee. The responsibility of the eo ob-ligors, fór contribution, depends upon the payment of money to their use, which, ex equo etbono, should be refunded. Confessions only to be taken against the party making them, and such as claim title thro’ him, & are the weakest admissible evidence.</p>

<p>Chancery.</p> <p>Error to the Mercer Circuit; Wm. L. Kerry, Judge.</p> <p> Sale in gross or by the acre. Mistake of surveyor. Deed. </p>

<p>Sheriff cannot legally sell more o*' a tract of land, levied on, than will satisfy the execution or executions levied, and his commissions. His duty to obey the wishes and directions of the def’t. in the execution if to be dene; if not, then •to follow his own views, but to sell no more than will satisfy the executions.</p>

<p>Indebitatus assumpsit, for recofvedfno^ supported by evidence of S®of 0r other property.</p> <p>Tort and as-sumpsit cannot be joined.</p> <p>If an attorney fail to collect money, and is sued, he is only responsible for the damages actually sustained by his client, by such failure.</p> <p>? If attorney collect paper, in lieu of specie, without authority, he is responsible as for failing to collect.</p>

<p>An appeal should be in the name of against whom judgment or decree may rendered? any refuse to join in the whcfwishes a revision, should prose-bf error.WHt Upon a'joint appeal bond, sponsible for all. Appeal bond, execute.d by one of several, he MaM^íar ah*'</p>

<p>Error to establish pl-vate passway ^nting^" guardiuiad litem, to de- ' warding writ of ad quod damnum, ex ojjicio.</p> <p>11 is error in county court to act upon comm’rs. report under the act of 13 Jloc. 1820, relative to private pass-ways, until all the parties, through whose land the passway may be located, shall have been served with a a copy of the Porret-</p> <p>Theproceed-inSs of the shew notice1 to all the de. fendants. ■</p> <p>Upon return of the report of r.omm’rs. if there be objection to the passway, the general road . 3nw, is to go'vern subsequent pro-epedings.</p> <p>Ifi t do not appear that the jury was properly charged when executing writ of ad guod damnum inquest must be quashed, whether pass-way be thro’ resUand. °” Prospective damages to be glven'</p> <p>h is error nos P4rit'of ad’ qUod damnum to shew the "hlraoter'of his title, to the land. afieoted-</p> <p>Errors in fact proceeding" relative to private pass-!ways-‘</p>

<p>A, with B, &c executed a note to the president and directors of the bank of the commonwealth : C had a judgment vs. A : A died, B administered : the bank obtained judgment vs. B, &c. B paid the debt due the commonwealth’s bank by A. Ruled, that the payment is not a misapplication of the assets of A. Tho’ the judgment was vs. B, &c as the securities of A, and not vs. B, as adm’r. of A.</p>

<p>Covenant “to do plastering, when called ondeclaration must aver a demand. Upon plea o covenants performed, onusprobandi, on flef’t.</p>

<p>Ejectment.</p> <p>Error to the Nelson Circuit; Paul J. Booker, Judge.</p> <p> Demise. Lessor. Conveyance. Tenant. 'Abatement. </p>

<p>Chancery.</p> <p>Error to the Knox Circuit; Joseph Eve, Judge.</p> <p> Husband and wife. Marital rights. </p>

<p>Trover.</p> <p>Error to the Pendleton Circuit; H. O. Brown, Judge.</p> <p> Declaration. Joinder■ of actions. Trover. Fraud. </p>

<p>Plea,in a-hatement, not tenant of the freehold. Replication, that tenant claimed the landjin controversy, as his own, defective, not answering the negation of the plea.</p> <p>What title necessary in demandant, ■what in tenant, to the maintaining and prosecut-' in sr a writ of 'tight.</p> <p>Possession by purchaser, uninterruptedly, for 30 ¡ ears, will entitle him to join the mise in a writ of right; and if writ, sued out, against his vendor or his heir, either might plead tenancy of the freehold in the purchaser, as conveyance would be pre-, sumetl.</p> <p>Fifty years, a bar to heirs w ho demand in a writ of right, upon the seisin of their ancestor, he having been seised within 3d years prior to his death. A seised of land, conveys to B: B. reoonveys: A does not lose the benefit of bis original seisin: but may maintain a writ of right upon such seisin at any time within ■ 30 years after ouster.</p> <p>years portion, a bar to writ of r5f:ht> ^ ^¿'not'been seised of the land within 30 years. Neither the j-^jtltionnor Jhe champer-iy acts of 1824, nor of 1 ’app y’</p>

<p>Covenant,</p> <p>Error to the Franklin Circuit; Henry .Ravidge, Judge</p> <p>Parol evidence. Admissibility of testimony, lnstru« menl of writing.</p>

<p>Chancery-,</p> <p>Cross writs of error to the Madison Circuit; George Shannon, Judge.</p> <p> Conditional sale. Prayer for general relief. Interlock utory Decrees. Replevin or credit, proper under decree of sale of mortgaged property. </p>

<p>Chancery.</p> <p>Error to the Nelson Circuit; Paul J. Booker, Judge.</p> <p>Chancery jurisdiction. :Executors, Heirs and Devisees.</p>

<p>An administrator’s obtaining a decree in bis favór against the heirs, does not raise his debt in dignity: it is still á simple contract debt, as against the assets; but the decree ascertains the debt, so as to enable him to retain for i t, against all debts of the same dignity^</p> <p>A person’s ourk^forVhe intestate, paid a sped-alty orjudg-does not, ipso facto, become a specialty or credito^of the estate. He is a simple creditor, and barril8hYs^ remedies for his debt. •</p>

<p>if bill of exceptions do not purport to set out all the evidence, court will not grant new trial, on tho charge, that the verdict is not supported by the evidence. When the merits of a case have been correctly decided, & tho proceedings will constitute a perpetual bar, no new trial granted.</p> <p>1’otition for re-bearing. i</p> <p>Response to the petition.</p>

<p>Cove</p> <p>Error to the Hardin Circuit; Paul. J. Booker, Judge.</p> <p> Warranty of soundness. </p>

<p>replevin bond and an securi-bond, on bill restrain the collection of the replevin se^a5ne'roa" for §300"; but to have credit lor whatever amount be Should be «lymUie10 replevin bond, and‘for dumages'»íbr mi»htbelia ble“in that " casepif he coíts°and °da raages oir dissolution of the injunc-be entitled to that sum as a eredit, A person being bound as</p>

<p>The statute, which privileges ex’rs. and adm’rs. from suit for six months after qualification, does not exempt the hpir except incidentally, where the executor or ad’mr. must be joined in the suit, then he is privileged, because judgment cannot go against the ex’r or adm’r.</p> <p>Hnie9s the heir be expressly bound and may be sued alone he is exempt .('rom suit .12 months, by the act of 1819: I. Dig. 652.</p> <p>If the heir may be sued alone, he is liable to suit, instantly on the death of his ancestor, the act of l&ll, giving six months to adm’r. and ex’r does not apply to heirs</p>

<p>C’HAN'CERV.</p> <p>Error to the Hardin Circuit; Paul J. Booker, Judge,</p> <p> Mistake. Commonwealth’s paper. Dollars. Relief in equity. </p>

<p>The county court has the power to require, from time to time, sufficent security from ad’mr. and if they discover that the security which has been given, is not sufficient, or the penalty ii\ the official bond is too small, they give addition-orbeforenex" term, may be revoked: wri^o^error lies to it. may, ‘■ex offi-cio,'1 rule the ad’mr. to additional security. Order, ofcounty court requiring, ad’mr. to</p>

<p>The act requiring nonresident pl’tffs. to give security for costs, applies to the court of appeals. Security for costs, may be given at any time before trial, unless the omission be pleaded in abatement.</p>

<p>a creditor cannot attach {insolvent debtor, by bill inequity,and hídebtor^s insolvency. There must be a return of execution, The law ac-thorizing pro-gainst absent def’ts. does not apply to cases of rm-debtors,</p>

<p>Chancery.</p> <p>Error to.the Payette Circuit; Jesse Bledsoe, Judge.</p> <p> Assignor and assignee. Bill taken pro confesso. Gaming consideration. </p>

<p>On an appe'al from a justice, to the circuit court, for any am’t. under five pounds, the court must dismiss it; dismissal of the appeal, ipso facto ^ te-taros the parties to the same relation to each other, that existed when the appeal was taken. If the appeal bond be less than double the amount of the judgment of the justice, the appeal should be dismissed.</p>

<p>-Ml of the def’ts. in an execution must sign the replevin bond or it may be quashed.</p> <p>The execution must pursue the judgment in regard to parties, or it will be quash'-, ed.</p>

<p>Chancery.</p> <p>Error to the Mercer Circuit; Wm. L. Kelly, Judge.</p> <p> Witnesses. Jurisdiction. Payment in notes. </p>

<p>Error to the Jefferson Circuit, Henrv Piríi.e, Judge</p> <p> Statute. Charter. Bank of Kentucky. Obligor. Consideration. Usury. </p>

<p>Chancery.</p> <p>Error to the Livingston Circuit; B. Shackleford, Judge.</p> <p>Deed. Warranty. Jurisdiction. Local action.</p>

<p>CiuNCEitY.</p> <p>Error to the General Court; Wm. P. Roper, Judge.</p> <p> Application of payments. Limitation. Interest. </p>

<p>Error, coram. VOBIS.</p> <p>Error to the Jessamine Circuit; Wm. L.\ Kei.lY, Judge</p> <p> Replevin bonds. Writs of error, coram vobis. </p>

<p>The statutes authorizing a joint action, against the drawer and endorser of a foreign bill of exchange, being in derogation of the common law, is construed strictly. Therefore, a joint action, brought against the drawer and endorser, fer the amount of the bill, that is, for the debt, aloney is not maintainable. It must be brought “for the debt, interest, and costs of protest,” according to the language of the statute.</p>

<p>appeal.</p> <p>Error to the Shelby Circuit; Henrv Davidge, Judge.</p> <p> Duty of Attorney General. </p>

<p>Paymaster to sustain motion vs. sheriff for militia fines, must shew himself paymaster.</p> <p>Sheriff entitled to credit on judgment, for his commission for collection.</p> <p>Judgment should be rendered for the medium in which fines payable.</p>

<p>the evi-duc^howéver slightiy, to prove that b^nlhschar ged, the court if requested, should «i-_ ry'that they" may infer Ijom lhf evi~ the debt.^as been satisfied, To F?fuse J^arethat the testimony sl]8ulc! be dlsreSarded></p> <p>If the figures “1823,” be so inserted in a note as to alter the true date of its ex-■coution & delivery, and the obligor never consent to such insertion, nor re-acknowledge the note, then the iiv* • strument is not his act & ■deed.</p>

<p>When a, debt-gagJd oroth-erwise subjeoteá P™Per" payment^ specific debts, equity will guohPdebtor to be harassed by the creditor of hia creditor, until the disposition of the subjected property is shewn, and a deficiency.</p> <p>Tho’ a bill be taken for confessed, yet if its allegations be not clear, specific and certain, no decree can be correctly rendered.</p>

<p>The growing j^gf3^^ sohTunder/.-fa: for it is a chattel; it £oTobntract" and it goes to the devisee of gstate'and11 not to’the de-visee of the ifd: A cred' trespasser by fand°of his and agisting the Jb"execution on the grow-by afterwards entering to bidatsaleof fore or secured^’</p>

<p>If a patent call to begin on a large river, and then for certain courses and distances, without any corners or marked lines, to the mouth of a creek emptying into the river, and then, for cour-es arid distances, without any corners or marked lines, to a stake on the river; and then, lor courses-, distances and corners, from the river round to the beginning: the fact that no intermediate corners or marked lines, are called for between the beginning, the month of the creek and the stake on the river, is a strong circumstance to prove that the river was intended to be the boundary line. The courses and distances between the beginning, the mouth of the creek and the stake on the river, being inaccu-ratei, is also a strong circumstance to prove that the river was intended to be the boundary.</p> <p>It is an universal rule, that the actual boundary, whether natural or artificial, shall control re-puguant course and distance.</p> <p>The survey being of record, is m that respect, nity'to'the2" patent, and it “ay be used piy^gomis-" sions,.or in correcting m H</p> <p>If thedefend-p“3tSpScF”red under the’ pi’tff’s patent, yail^imself' 0f hisseven ■ years’ occupation, to bar the pl’tffs. action. It is no adverse possession,</p>

<p>chancery.</p> <p>Error to the Franklin Circuit; Henry Davidge, .Judge.</p> <p>Bond surrendered. Possession. JYotice.</p>

<p>On a warrant of forcible de-tainer, tenant cannot resist restitution to whom he ac-j qniryd pos-se9Slon‘</p> <p>^cib/ed0/ tai“er proYe right to part only of the ^"fnThTwar-' rant, he is ejectment,8to1 a recovery Pro tanto-</p> <p>Authority of attorney at law, is determined by his client’s death Attorney at law cannot sue out sderi fadas, or a writ of error, without new warrant. Nor can he release a judgment without special authority, unless the thing, for which judgment was obtained, be delivered.</p> <p>If a person, in possession of laDd, be induced, by fraud, to become lessee of one having no claim to the land, he will not be estop-ped by such lease, to disclaim tenancy.</p>

<p>The genefal court accord-' jng to the act of 1802, had jurisdiction in ajl controversies, between' non-residents and the citizens of this state, where the matter in dispute was above $20. If the complainants be non-residents the fact, that one of the def’ts. is a resident of this state, & the others are non-residents, does not oust the general court of its jurisdiction.</p>

<p>Chancery.</p> <p>Error to the Fayette Circuit; Jesse Bi.edsoe, Judge.</p> <p> Revivor. Parties. General Warranty Deed. </p>

<p>A person who is not made def’t. should not be permitted to thrust his answer into the cause.</p> <p>The measure of assignor’s responsibility in case of a perpetual injunction to the judgment at law, is the consideration paid by as-signee, for the note, and interest thereon.</p> <p>^terhwT” judgment for costs,one rendition^ final decree, j^^par" ties any notice, is error,</p> <p>The answer ofonedePt. in chancery, a atnsThi”06 co-dc.pt., nor' is the silence °a¿netaef,t‘ king the bill, pro con/esso, an^íTídenGe ;t"ain't h1sG co-def’t.</p>

<p>Motion.</p> <p>Appeal from the Pendleton Circuit; H. O. Brown, Judge.</p> <p> Restitution. Sale of land under fi. fa. Affidavits. </p>

<p>Bill in ohan-eery,the appropriate remedy against adm’x. and securities, to obtain distributive share, and securities may be sued alone, if adm’x. dead, and unrepresented.</p> <p>If adm’x. marry, she cannot act without husband’s concurrence, and his estate is chargeable, in equity, for any waste committed, & her securities continue liable, for all acts done during cover-ture.</p> <p>Omission, in adm’rs. bona, of the stipulation usually inserted for benefit of creditors, will not protect securities, from suit by distributees.</p> <p>Adm’r. is lia, ble for failure to distribute slaves. So far as rights and duties of administration, are concerned., slaves are chattels.</p> <p>Guardians are generally responsible _for interest & ' profits.</p> <p>Adtn’r. is not, generally, responsible for interest, unless it be shewn, by proof, that he made interest If he refuse to distribute, on proper application, he shall pay interest from that time.</p> <p>Ex’r. spiling slave, when sale is not directed by will nor necessary for payment of debt-, is responsible to distributees, tor value of slave and reasonable hire.</p> <p>Neither ex’r. or adm’r is bmind to distribute, till refunding bond is tendered. Therefore, application for ilis-r tribution, without tender <f refunding bond, will not e,harae adra’r with interest.</p> <p>Adm’r. is not obliged io loan, out the estate.</p> <p>Any trustee is chargeable in equity with interest, if he has made interest</p> <p>Adm’x. not bound to sell intestate’s wearing apparel, nor to, account for it to distribu-tee, unless she has converted it to some improper or mercenary and.</p> <p>Adm’r. isen-titled to reap°ñsatioiiOIfor trouble and expenses of ^dmimstra-</p> <p>If adm’x. siomsheis no* liable for ,u^ h're’ wire oV might have been worth, she'was^not bound to hire them out.</p> <p>if any chattels remain in specie, at administrator’s death, dis-tributees can-net recover them from securities of adm’rs: they belong to the adm’r. de bonis non.</p> <p>Securities of adm’x., the’ sued alone, by distributee, may require refunding bond.</p> <p>^alnsTadm’r and seonri- ' ties, at suit of shoulfnf^'e bonL1 propttis.</p> <p>Appraisement returned to & approved of by court, although not signed by adm’r. is •prima fade evidence of , amount of estate.</p>

<p>County court1 certificates forland, must-contain a “special location, describing, as accurately as may be, the land contemplated to be included in the certifi- * cate,” They must possess, not only “identity, but-such notoriety and description, as that others wishing to make subsequent appropriations, may find and avoid them.”</p>

<p>Transfer by father, of all {^hisson^to payjustdebts, and to evade paJment°f is fraudulent,</p>

<p>To rescind the contract, before the property restored, is error.</p>

<p>AsstiiirsiT.</p> <p>Error to the Clarke Circuit; Silas W. Robbins, Judge.</p> <p> Assignee. Due diligences </p>

<p>To injunction against reple-security therein, piuff. in judgment, blepártyfBa*</p>

<p>Loss by contract, is con-si,deration sufficient to sustain it. Bona fide assignee, without notice of the gaming consideration takes new Bote from ob-ligor, giving Slim one year’s indulgence ; new •note is valid, for obligor has thus destroyed or postponed assignee’s recourse.</p> <p><juch]gas-" signee to purchase note, hl3 gainstobli-see; and so, ming consideration,induce a8818^“ saying he will pay it.</p>

<p>Feri,v ma forfeited by non-user. But to consummate forfei-is ^"Vthe **' proprietor.</p> <p>County court cannot grant ferry on Ohio river, except to those owning land on the river.</p> <p>ohicfriver^is alienable and descendable ™,th wit¿ ferrys on other rivetsi</p> <p>Trustees of Maysville may receive grant of ferry.,</p> <p>Franchise may be granted to natural or utidcial person.</p>

<p>émanc?pated° by anymstrument of. wri-necessary that such in-sealeifor recorded in Butslave have itre™^ corded, if be choose to per-pe uate it.</p>

<p>ClIANOERl.</p> <p>Error to the Madison Circuit; George Shannon, Judge.</p> <p>Injunction. Costs. Deed. Dower. Rents. Damages..</p>

<p>Chancery.</p> <p>Error to the Harrison Circuit; John Trimble, Judge.</p> <p> Warrantor and Warrantee. Reciprocal covenants of indemnity. </p>

<p>On plea of non est fac-tum, there should be an issue and jury.</p> <p>Replevin bond, signed in blank, and afterwards acknowledged before sheriff, is valid.</p>

<p>Twenty year’s possession, by elder patentee, claiming to extent of his patent, bars junior paten-tee’s equity to any interference.</p>

<p>Twenty-year’s continued possession, by purchaser, claiming to extent of his marked boundary, tolls right of entry of all adverse claimant», within marked boundary. And, so, altho’ purchaser had no deed at his entry, nor till six .years after</p> <p>«otioeuTro' ducebond^0 may prove its not T d’ d p '</p> <p>Confession of one de’ft. no gainst co-. def’t.</p> <p>Intended wit-nesais some, teat °0mpe'</p> <p>Servant pay-ins “«ny, or erinegootís' in common ’ course of buii-”etent wiS' ness to charge another, al-ího’ tbc?e" himself.*0* ^</p> <p>Court may, at request of "alter t¡1(!jr retirement.</p>

<p>Note to pay $85 in consideration of a clock, which is warranted to keep time; warranty is no condition precedent, and need not be noticed in the declaration nil note.</p>

<p>debt.</p> <p>Error to the Franklin Circuit; Henry Davidge, Judge.</p> <p>Pleading. Demurrer. Profert. Oyer. Autre action, pendent. Abatement.</p>

<p>Case.</p> <p>Error to the Estill Circuit; George Shannon, Judge.</p> <p> Sale of note. Fraud. Evidence. Proferí. </p>

<p>After judgment, execution and return of “no property,” choses, in ac tion of debtor, are subject, on bill bled,</p>

<p>Curator bas no power to sue on bonds or notes of decedent. Death of compl’nt. re-vivor must be by bill.</p> <p>Money, voluntarily paid, to person not having authority to receive it, may be recovered again from such person.</p> <p>f. Dig. 526, power of county courts to appoint curators. Dusy of curator.</p>

<p>Promise to oue new belong*-0* ingtothe6 firm, enures grnTand action Or it sbould be b? ürm‘</p> <p>Unless verdict is without or palpably contrary to evidence, new trill should not be granted.</p> <p>Promise by debtor to pay a debt, which his creditor owes, if founded on new consideration, is not within statute of frauds and perjuries.-</p>

<p>Covenant.</p> <p>Errot to the Madison Circuit; Thomas M. Hickey, Judge</p> <p> Award. Costs. Commonwealth's hank paper. </p>

<p>Wife not entitled to divorce for corporal maltreatment unless husband endanger her life,</p> <p>Wile is enii-" tier! to alimo»y, for‘cruel, inhuman and treatment,’ tho’ her life be not endan-8 ’</p> <p>jjjjj foraK-monynotto ynttj]s™I-8se<3> has found the facts, and tho who,e cause ProPrlTe< *</p>

<p>CüVENAN</p> <p>Error to the Lewis Circuit; Win. P. Ropek, Judge.</p> <p> Recision of contract. Mew trial. </p>

<p>Vendor of land, covenanted to be sold, has lien on it for purchase money,</p> <p>At law, creditor suing ad’mr, alone, on bond in •which heir is not expressly bound, is bar red after-wards, from sueing ad’inr. and heir • jointly.</p> <p>‘Bill in chancery cannot be maintained, to subject chose, in action of heir, to the payment of a judgment vs. adm’r. without return of nulla bona on execution vs. heir.</p> <p>Suit for »io-^’v^jU-^be nanje 0fa(pr, or ex’r., not of heir,</p>

<p>Executor, having no other interest than his fiduciary character imparts to him, is competent witness to prove the will.</p> <p>Witness cannot, by his own act, alter knowledge of a fact, de-stoy his competency.</p> <p>Opinions of witnesses, not entitled to much weight in will casés.</p> <p>Paralysis however uni-versa), does not always affect the mind equally with the body.</p> <p>Rationality and equality in a will, made fully ■without dictation, conclusive of sanity.</p>

<p>Will1 casEi</p> <p>Error to the Bracken County Court..</p> <p> Will. Mental imbecility. </p>

<p>Calls of entry must be notorious and certain.</p>

<p>Chancery.</p> <p>Error to the Clark Circuit; George Shannon, Judge.</p> <p> Award. Fraud. </p>

<p>Chancery .</p> <p>Error to the Fayette Circuit; Thomas M. Hickey, Judge.</p> <p> Legacy. Set-off. Statute of limitation. </p>

<p>No appeal or writ of error lies to judgment of county court, overruling mo-' tion to open a road.</p> <p>Separate judgment, for costs, in favor of proprietors of land, thro’ which proposed road passes, is not erroneous.</p>

<p>cbancpry court of cohu.níy.’ *? f*„ dered, always h.as juri«dic-tioataenJom’</p> <p>A defence relied an at law,,cannot in chancery6^</p> <p>Petition for a</p>

<p>Relmquish-6f ‘!<”p Jim/elver?, before clerk, f1°8S^ot oníowe/and such right may as" o®1 full age,*1 and discovert.</p>

<p>CjIANCEili.</p> <p>Error to the Nelson Circuit; Paul J. Booker, Judge.</p> <p> Injunction. Insolvency. Jurisdiction. </p>

<p>CiiAxcEity.</p> <p>flrror to the Bourbon Circuit; George Shannon, Judge,.</p> <p>Set-ojf. Assignee. Injunction. Recision.</p>

<p>Writ of error.</p> <p>Error to. the Madison Circuit; George Shannon, Judge. .</p> <p> Writ of crrór. Pica bar. </p>

<p>On dissolving injunction, defendant is only entitled to damages on so much of his judgment, as remains due, & collection of which has been delayed by the injunction.</p> <p>5Tis error to give costs to def’ts. who Decree, dissolving injunction must wbici) damages are to be calculated, «or ’tis error.</p>

<p>Pleas in abatement, are still allowable in writ of right, as anciently. Joint tenancy is goo,d plea in abatement, to writ of tight. Land devised, Ho be equally divided,’ constitutes devi-sees, tenants in caminan.</p> <p>Tenants in common, cannot maintain joint action.</p> <p>By common law, purchaser could not maintain writ of right on seisin of his vendor.</p> <p>Heir or sue maSntaSrwrlt of right, at any time, within SO years, after disseisin of ancestor or predecessor. But plaintiff counting on his own seisin is limited to 30 years.</p> <p>So purchaser, or devisee, claiming as maintain writ of right, after lapse of tbir-j ty years from disseisin ¿estator!* °r</p> <p>None, but corporations fioial oToffi-** cial person, ¿an have sac-CCSSQH.</p>

<p>Chancery.</p> <p>Error to the Scott Circuit j Jesse Bledsoe, Judge.</p> <p> Interpleader. Recision. </p>

<p>Mjectmest ,,</p> <p>Error to the Franklin Circuit; Heniív Davídge, Judge.</p> <p> Res gesta:. Entry. Tenant. Possession. </p>

<p>Verdict for “land in declaration described,” is sufficiently certain, although description in declaration does not precisely ascertain quantity or boundary. If, under ka-fyere facias, pl’tff. obtain possession of e" declaration & by judgment hislal'or Jestitution * will bea-warded oa motion.</p>

<p>^Witness should not be rejected on proof of declaration by him, ‘that he is interested.’ For be may have been mistaken, or his interest may have expired He should be dire, and examined, as to ^“heiproof introduced to shew his in-Hrt®s*‘s J£eis himself interested, he is incompetent, truth^he’has no interest whatever.,</p> <p>In trovei,s value of thing at tilB? of gutiu dei'in-uejury should give yalueofthia* It time of S verdici.</p> <p>i’etition for, a rc-thcaring.</p> <p>Response to She petition.</p>

<p>Covenant, for convey, anee ofland, iratererf ’ thereou^s* measure of recovery; and tion'w’ilT b™' evidence of J*lue-lset oufbond1* and its con- ’ which is for onanjPocTrt cannot’givlf ^¡naTty of°r bond*</p>

<p>If sheriff, without combination with return process exe-cutcd, when i!ntrnth>it:. - ... waVtis no .around to impeach, judgment, as fraudulent & void.</p> <p>Injured party has remedy at law, againt sheriff for false return.</p>

<p>If bill, alleg-lns: h®'rs t0 be mom to"’ His unnecessary to.. heiTsareun-* known.’-</p>

<p>Chancery.</p> <p>Error to the Bourbon Circuit; George Shannon; Judge.</p> <p> Guardian. Ward. </p>

<p>Chancery.</p> <p>Error to the Montgomery Circuit; Silas W. Robbins, Judge.</p> <p> Fraudulent judgment or decree. Quia timet. </p>

<p>Deed made “^j clteGrec although land in adv.erse PosseS’ ^er °isnot" within chamPerty a°h</p>

<p>Generally, vendor of i* „ ’ cording to hi» title bond, ^obes'caiT not compel vendee to accept deed, on ground that vendee being in possession, has sustained no injury. But, if vendee lull vendor to repose, by declarations, “that he will take no advantage, and that it will malte no difference, if deed is not made on day mentioned in bond, he will he compelled to accept deed, after the (lay.</p>

<p>CoVEÍIANT.</p> <p>JSrtor to the Oldham Circuit; Henry Davibge, Judge.</p> <p> Covenant. Pleading. </p>

<p>Error to the Henry Circuit; Henry Davidge, Judge.</p> <p> Jury. Statutory bonds. Common lato bonds. Security. Duress. Bastardy bonds. Specialty. Consideration. </p>

<p>Parol evidence is competent to prove mistake in date of ad vertise-inpnt of salo. Although between execution creditors first levy gives priority of lion, yet, as officer, should have levied that first, which was first delivered to him, ho will he responsible in damages, to injured party.</p> <p>Quae re./Whether renewal and redeiive-ry to officer, of pecedenl execution, on return day thereof, preserves its precedence?</p>

<p>20 years’ adverse possession, is necessary to bar ejectment»</p> <p>if def’t. entered and held, under pl’lffs. vendee as tenant to him, his possession is not adverse.</p> <p>the prove 2q * years’ possec-monwealth-, ttmTde-fendant does n°t toldad plaintiff.168 °B</p> <p>Dwelling . ¡““¿Un controvert, tn entitle ^ of 7 years» limitation aot' ^werc“ -</p>

<p>if bonJ, declared on, shew,on its face, that more than 6 per cent, interest is reserved, altbo5 def’t. make default, judgment should only be rendered for principal and 8 per cent, interest. For that which appears need not be pleaded.</p>

<p>covenant.</p> <p>Error to the Jefferson Circuit; J. P. Oldham, Judge.</p> <p>Degal tide. Seisin. Covenant of Seisin. Deeds. Attestation. Recording. Endorsements. Equitable lien. Mortgage. Right of Dower.</p>

<p>Chancery,,</p> <p>Error to the Greenup Circuit; Wm P. Boper, Judge.</p> <p> injunction. Damages. Cross bill. ■ Subpoma. Costs. Co-defendants. Evidence. </p>

<p>Party, having retaken depo-feaveofoourt ¡s not exclad-ed from read P°* vided’itbe legally taken,</p>

<p>'Petition, &c.</p> <p>Appeal from the Fayette Circuit; Thomas M. IIickeY, Judge.</p> <p> •Deeds. Escrow. Unseaicd writings. Non esl factum. Bills of exchange-. Endorsement or signature 'in blank. </p>

<p>ClIAN’CEP.Yi</p> <p>Error to the Jefferson Circuit; 11 ekRy-[’irtie, Judge.</p> <p> Publication. </p>

<p>CSJANOEItY.</p> <p>Error to the Bourbon Circuit; George Shannon, Judges</p> <p>Descent. Land. Slaves and personalty.</p>

<p>Ejectment.</p> <p>Error to tlie Mason circuit; Wm. P. Roper, Judge.</p> <p> Tenant in dower. Sale of right, of dower. Possession. Reversioner. </p>

<p>Chancellor will incline to construe contract to be mortgage, rather than sale if its character is doubtful. And he will always treat as mort^ gages, conveyances which were designed as ! securities for money.</p>

<p>Error 4° the Christian Circuit; B. Shackj.eford, Judge,</p> <p> Statutory Bonds. Common law Bonds. </p>

<p>Chancery.</p> <p>Error to the Bath Circuit; Silas. W. Robbins, Judge,</p> <p> Injunction. Execution. Assignment. </p>

<p>Oef’ts. entering into recognizance, replevin bond in clerk’s of-flue, and ob-gaHndub le* gence thereby, cannot ^uashiToa ground, that it is not witnessed.</p> <p>if only.defect 6i recoym-of clerk’s name, as wit.ness, His cler* ical misprision and a-able. ntincprQ tunc.</p> <p>if execution issue against judgment is agamstone tmly, esecution, and any replevin bond taken thereon, in which both are compelled to II-liile, will be quashed.</p> <p>But if four persons be sued,&judgment against three only, all four enter into recognizance, with security, in clerk’s office, to pay judgment against all four of them, they cannot quash recognizance, on ground that there is no suchjudg meiit. Provided it appear, that re-] cognizance was given in satisfaction of the judgment against the three.</p> <p>■Mieout ex*/ oution on re-eoguizance, in nature of gtvenVt0 intestate, with-ou¿ reviving y scire facias.</p>

<p>In general, chancellor a°res"ass Act, authorizing trustees 0^Wand° graduate streets, and to oflotsto exe°ute the X thereto" and on failure to impose hours, ü constitutional.</p>

<p>motions.</p> <p>Error to tho^uliett County Court.</p> <p> Executors and administrators. Counter security. </p>

<p>Certificate of publication, to which editor’s name is signed by another. is no evidence of publication.</p> <p>Note. The certificate of publication, in this case, w'as signed liT. Smith, by H. Savary.” Reporter.</p>

<p>ChANCEBY.'</p> <p>Frror to the Caldwell Circuit; B. Shackleford, Judge.</p> <p>Guardian, ad litem. Infant heirs. Process. Decree, against infants. Recision of contract.</p>

<p>Chancera</p> <p>Error to the Fayette Circuit; Thomas M. Híckev, Judge.</p> <p> Amendatory Bills. Sales pendente lite. </p>

<p>Administra-edlefore111^ sage of act of ing'settled his accounts about time act nation tcan*,k notava’ilhim-self of five ticm*'iyeifto adm’rsllhere-?n.</p>

<p>Debt.</p> <p>Error to the Madison Circuit; George Shannon, Judge.</p> <p>Writ of error. Abatement. Summons. Supersedeas. . Executors. Administrators. Costs.</p>

<p>Chancery.</p> <p>Error to the Estill Circuit; Geouge Shannon, Judge.</p> <p> Covenants Fraud or mistake. </p>

<p>Subsequently acquired 1:anot:ii P 83 y w</p>

<p>ClIÁNOLRV.</p> <p>Érrof to the Fleming Circuit; S. W. Robbins, Judge.</p> <p> Injunction. Perpetuation. Recision. </p>

<p>Obligor, in joint and several note, cannot, by releasing his co-obligor from contribution, render him a competent witness, altho’ suit has abated as to him. For-, should money not be made out of him co-obligor may, thereof lor, be sued on note.</p>

<p>Proof of will, b.y ,°™e sub_ ñess'Ts’suffi-cient to ad-wit it to re^cj,'e hires' attestation by witnesses, >'etflu;Mbat did attest it, may be proved one'</p> <p>Ño proof of fraud or mal-administration, or that adm’r. used, or loaned money of estate, he should not be charged ■tfith'iiitemf, until after proper demand, for distribution.</p> <p>And he should have some allowance for his services.</p>

<p>Wherever party is prevented, without his fault, from malting defence at law, he may be relieved in equity.</p> <p>Where appeal to circuit court, from justice of peace, has effor gG“i9S" omission oí cleric, in ohancello’r has juristic-' hear and decide cause</p> <p>judg” ’ mentofjus-hisappea'k not from his own neglect hL^cásp"^ °f from inwíte-ble accident or ;mistake, wiuTeJievp, by injunction,</p>

<p>Ejectment.</p> <p>Error to the Spencer Circuit; Wm. L. Kelt,’/) Judge.</p> <p> Surprise. Evidence. 'JVew trial. </p>

<p>Chancery.</p> <p>Error to the Clarke circuit; George Shannon, J udge.</p> <p> Injunction. Dissolution. Damages. </p>

<p>Person ac-tokml^and entering on it bonafide, sup-must be paid pavement,</p> <p>Such occupant must be improre-must be^har-Ked rent for lo,"rent/or improvements¿ annually, as maJewere</p> <p>Chancellor will judicial ly know, the history and topography of the country, and the ordinary price of labor, and if no peculiar reason appear to the contrary, will ex ojjido, quash report of commissioners, allowing an unjust and excessive price for cle'ring land, or mi-kins; other improvements.</p> <p>Report of commissioners, allowing $25 per acre, for cleadng land, should be quashed, unless peculiar circumstances are exhibited to justify ft.</p> <p>Improvements made by occupant, after decision of court against his title to land, are not bona fide. , Therefore, he is not entitled to their prime costs, but only to so much, aulmentedVe vendible price of the land,</p> <p>malafide, shall receive nptbing for ¡^ñts,Pnníesfe they render lancl really more valúa-ble.</p> <p>As bonafiie 0jt®uP®f*™ oost7forhis improye-inents, ire should pay ior use from time of making them.</p> <p>If occupant be charged nothing fot Use of improvements made by him, he should be allowed only for their present value, or the actual amelioration.</p> <p>Bona fide occupant is'responsible for ■ waste.</p> <p>Petition foro se-hearing. '</p> <p>Occupant,ing thatit does not b&» loeg to person from whom he has purchased, ¡8 responsible for rent, from time of bis entry.</p> <p>be^ouncí'for rents, only from institu--he hnotUenti-tied to prime cost of his ini-E3T* their value, from time of rentsTgainst him.</p> <p>Court judid-«Mjknow,. monweakh’s bank paper, bas heen de-predated establishment ¿„llie at any time,</p>

<p>Error of judg-«nen-, by ar-ground to re-Centoná-ward,</p> <p>Petition for a re-hearing.</p> <p>Award, in tained, so far as it is good, provided, in this partie.u-lar,Ube»mi-</p> <p>that “.n.pt.’pay ¡o pl’tff- $io, &. -costs, which may bo dis-ollarKc’íJ m iS' court render-.iiidgment for P!amlif verse it. For,, he is not in-jurec1,</p>

<p>Case.*</p> <p>Error to the Jessamine Circuit; Wm, L. Kelly, Judge</p> <p> Pleading. Libel. Judge. </p>

<p>Chancery.</p> <p>Error to the Nicholas Circuit; H. O. Brown, Judge.</p> <p> Alimony. Parties. </p>

<p>Case.</p> <p>Error to the Todd Circuit; H. P. Broadnax, Judge.</p> <p> Sheriff’s sale. Land. Contract. Statute of frauds and perjuries. Averment. </p>

<p>Chancellor will not liquidate and set off against bond, damages sustained t%on thereof, unless msol-JpSiTea° o« be alleged,</p>

<p>Chancery.</p> <p>Error to the Greenup Circuit; Wi. P. Roper, Judge.</p> <p> Injunction. Damages. </p>

<p>Chancery.</p> <p>Error to the Nicholas Circuit; II. O. Bown, Judge.</p> <p>Parol contracts for land. JVotice. Equity. Assumpsit. Parol lease.</p>

<p>Oyer once, is all that party can require in same suit.</p> <p>If bond, on its face, shew party to be security, he may plead, at law, any matter which will be a legal discharge t>f himself; but if bond do hot shew party to be security, chancellor alone, can give relief.</p> <p>Plea to action, which only answers part, is bad on deraurreri</p>

<p>in criminal cases, court may compel %yitness to enter into recognizance, to appear at future day, but cannot require any surety of him.</p> <p>Order impris-oningfor con-temP*> ™.U8t 0Vconfinement</p> <p>*n cases of oourfcrfap-peala has P°'Ter to c®r* merits &sentences, tho> it “oontempt or E0 contempt”</p>

<p>Chancery.</p> <p>Error to the Madison Circuit; George Shannon, Judge.</p> <p>Recision of contract. Rent's and\ profits. Purchase money. • Chancery practice. Vendor and Vendee» Fraud.</p>

<p>When title or bounds come in controver-partíeTo/re-cord, will give jurisdiotion $>’frt”Cra</p> <p>Suggestion, {¡gathoffé heir'of def’t. who rename to her not^is^nse w°th iieccsify of revivor a-gai?3t be,r.re" prejen A !VI?S’</p> <p>aá boTp’pointed by order of Number of in’! fant heirs, J should ap-from re“</p> <p>sentatives of below’ perly before inferior court, j^j^oferror further process to bring them ^court* o”' return of ** cause, will bé nnnecesta^,</p> <p>■If vendor is unable to convey, and has been -guilty of no fraud, criterion of damages, is value ofland, at date of contract, to be ascertained by purchase money, and interest thereon. But, if vendor has been guilty of fraud, then in- ' creased value of land at date of assessment, is '-measure of damages.</p> <p>■Jill pl’tffs. in tvrit of error, must, at rendition of de-dedree, labor under disabilities, or rights of none, are saved out of statute of limitation. •AUter for-■iaerly.</p> <p>Court has no power to open decree, 13 years after its rendition, even to let in answer of defendant, who was, at its rendition,. and during whole 13 years, a nonresident feme covert.</p> <p>.Note. Chief Justice Bibb did not sit in thjs case»</p>

<p>Covenant.</p> <p>Error to the Fayette Circuit) Jesse Bledsoe, Judge.</p> <p> Parol evidence. Receipt. JYotice. Covenant. </p>

<p>Ikftoiifn**" cowtg sbeyid sKt ofií legal J;Í4ii{c~íí debt cbsu-geó, sad aioo bis promise to aid€':5onn° tbnssf,</p> <p>inabilities when implied by law, are for money. Hence, general indebita-tus coasts, are always for money, & nothing else but money.</p> <p>General in-debiiaius count, charging def!i„ to beindefifedia commonHhs. bank paper, for so muck like paper laid out, &c» and in consideration thereof, to hme promised to pay in cosnsnon’ihe, back paper, is bad on de-marre:. It should . charge him to be indebted fa money, and tc bane promised Is nay</p>