Volume 26 — Kentucky Reports

<p>i-'lIAACEin., Case 3.</p> <p>Error to the Fayette Circuit; Thomas M. Hickey, Judge.</p> <p>Special warranty. Damages. Allegation. Fraud. Mistake. Misrepresentation.</p>

<p>Motion. Case</p> <p>Error to the Pendleton Circuit! H. O. Brown, judge.</p> <p> Affidavit. Evidence. Restitution. Process. </p>

<p>Assumpsit. Case 3.</p> <p>Error to the Fayette Circuit; Jesse Bi.edsoe, Judge. Assumpsit. Bank notes. Demand. Residence. Averment. Declaration. Partners. Set-off.</p>

<p>'•Chancert. Cáse 4.</p> <p>Error to the Mason Circuit; Wm. P. Ropkr, Judge.</p> <p> Entry. Survey. </p>

<p>Chancery. Case 5.</p> <p>Error to the Bullitt Circuit; Paul J. Booker, Judge.</p> <p> Usury. Equitable assignments. Chose in action. Mortgage. Purchaser. Notice. Security. Limitation. Chancery. Jurisdiction. Cause of action. </p>

<p>Person entitled to money and resisting reception thereof, has no right to interest thereon.</p> <p>Purchaser, with notice of prior sale, to another, of same land, must surrender to prior vendee.</p>

<p>Covenant. Case 7.</p> <p>Error to the Green Circuit; Benjamin Monroe, Judge.</p> <p> Title bond. Deed. Authority. Demand. Covenant of warranty. Relinquishment of dower. Acceptance of deed. </p>

<p>Chancellor will not re-lievo party from legal consequences of contract, when there is neither fraud nor resulting trust, nor if entered into for purpose of defrauding creditors.</p>

<p>Vendor of otaVfraud, and also ’ shewing that responsible for any defect ^ ro*or tod"e-cree against him, value of ra-uuTb^von (tee. ° * '</p> <p>^tnst'vendor ofland^that be refund purchase mo-¿eres/thereoñ, and pay for ’ improvemente vendee retó»* possession, till paiT/w^koui paying rent, ie erroneous,</p>

<p>Writing containing no promise nor promisee, and to recover on which, in any form of action, averment or parol proof aliunde would be requisite, is ad-, missible evidence in as-sumpsit,</p>

<p>Chancery, Case 11.</p> <p>Error to the Bourbon Circuit; George Shannon, Judge.</p> <p> Heir. Advancements. Covenant. Eviction. Damages. Consideration. Interest. Mesne Profits. Possession. </p>

<p>Generally, equitable lien on estate, will be enforced, distribu-tivüy ¡Se proportionally, against all intore3t°^DS But^at law motion -would pot be tolerated to coerce contribution by several defendants. Each being responsible for whole, judgment creditor cannot be controlled, but may coerce whole am’t. from all or any of def’tst</p> <p>If mortgagor convey mortgaged estate to several, they should all be made parties to biil ófforeclosure, and compelled to con.tribute pro-to extinguí-meat of mortgagee’s debt, ?ntere9tnS *° which each holds-in estate. And if mortgagor retain part of estate, that should be first subject-, ed.</p> <p>But, pendente lite purolia-sersv uru not neoes«,a*“y pnr:i«¿ ».o bill tr '.ufare© emú* si;i o Hess, on estate;.</p>

<p>Ejectment. « , 13.</p> <p>Error to the Jefferson Circuit; Henry Firtle, Judge. Dower. Mansion house.» Alienation, Ejectment,</p>

<p>Receipt against execution, given to ¿taPt. by deputy sheriff, who never bad execution in his hands, for purpose of acting on it as an officer, is no ground of injunction against execution.</p>

<p>Aiter c°v®-eiecled to sue at law, and obtained ¿hanoellor not Compel him >c ao, ^foi-'^mce \¡alesí he ha’s procured of 'Pen fraud or cut-Pable ne^~ oau'e’d'dehc-quency of covenantor, or lulled him into security an<i passiveness‘</p> <p>Not duty pf covenantee (jeétMf (ime f0r makingit isfixed.</p> <p>When vendee it in possession gad vendor, without any positive fault, has omitted, or from state of title, has been unable to comply with cove-céllorwill" on application of vendor, decree specific performance. Generally, m such cases, time is notes-¡f good, title can bo made reasohable tipfbo^om-pelled to ac-copt it.</p> <p>j5Ut vendor wjll not be allowed time, apply to chancellor |°as disaffirm» iawTorSshew that’twas impossible to before breach of covenant, and that «en-of title when he purchased. Vendee in. contract,ana recovering ^on^conve°--' ance°°iabie for rents, but valuable m-muirtbede-dwkd.</p>

<p>Chancery • Case 16,</p> <p>Brrot to the Henderson Circuit; Alkey M’Leán, Judge.</p> <p> Assignor and Assignee. Equity. Set off. Subjxsna. Acknowledgement. </p>

<p>ameab. Case 17.</p> <p>Error to the Bourbon Circuit; George Shannon, Judge.</p> <p> Jury. Evidence. JYezo trial. Non-suit. </p>

<p>Neither judgment bj justice, tor pl’tfif. in case of which he had no jurisdiction, nor judroent of circuit court, in same case on appeal, if rendered for want of jurisdiction, is bar to future suit, for same cause of action.</p> <p>If justice bas no jurisdiction, over subject matter of the suit, his judgment is a nullity.</p> <p>Justice, no jurisdiction over contract, for payment of property, made previous to passage of act of ’28.</p> <p>Pi’yf. cannot recover hire of slave, if he knew slave was unsound, and fraudulently concealed it from def’t. provided', def’t. within reasonable time after discovering fraud, offered to return slave, & rescind contract.</p> <p>If fraud was practised on tract, and he offered reci-after contract rescinded, & ““ ^atain*1 ed to enforce it.</p>

<p>i,¡u 0¡-;n_ terpleader, ““'í be affi" ed^hauliere is no collusion between pl’tff j*he Arties, 6 P</p> <p>When it is the duty of a party to tender, or offer to tender, money in court, if he fail to do it, iie is liable to a decree for interest.</p> <p>Error to reñ-subjecting’ closes in action of one ® Sbond" $0 satisfao- ’ tion of re-5^t”oUt°ma-k¡ng prinoi-pal obligor and the other securities in replevin bond Pariies-</p> <p>Mustbe^i; to authorize bill to subject y creditor.,</p> <p>tnowled^eof def’t. ifalleg-ed in bill and not deni?d fitted’lSa<'</p>

<p>Chancery.Case 20.</p> <p>Appeal from Henry Circuit; Henry Davids®, Judge.</p> <p> Statutory Bonds. Lost Bonds. Affidavit, Parties'.Occupant. Bond and Security. Lien. </p>

<p>Chancery. Case21.</p> <p>Error to the Greenup Circuit; Wm. P. Roper, Judge.</p> <p> Vendor and Vendee. Costs. Rents. Improvements. Writ of error.. Reversal. Settlement. Fraud. ' Mistake. </p>

<p>Bonoiting & lending or device to avoid statute, must be established before there can be usury. Chancellor will not, from solitary fact that note, for dollars, or specie, payable in months, was executed for same ain’t of depredated bank paper, conclude that there was usury.</p> <p>Depreciated bank paper is a commodity, and liable to be bought, and sold, as any other ar.ticle.</p> <p>Considered as part of history of country, that independent banks generally failed, and that their paper greatly-depreciated. But court cannot fix value of their notes, at different times, witfiout proof.</p> <p>The removal of assignor from the state up°by obligor, as a ground of equity vs. as-offdemands*' vs. assignor, which °°uld have b^ensei off.</p> <p>Petition for re-hearing, a</p>

<p>Chancery, Case 23.</p> <p>Error to the Nelson Circuit; Paul J. Booker, Judge.</p> <p> Devise. Dying without Issue. Limitation. Contingent Remainder. Waste. Partition. Parties. Damages. </p>

<p>Obligation to pay sum of money “when il collect money due on bond, upon which suit is Slow pend- ■ ing.” If no such bond, or no suit pending on'it,' obligation is broken.</p>

<p>■Bill dismissed absolutely, ihstead of ■ without prejudice, for want of necessary'party, ■ '¡must be assigned as error or decree will not be reversed, on that ground.'</p>

<p>IfplUff. in iaration, style himself execu-^0?j’sand .in, part aver, that he took l‘llYs °f «on,™eclaration is confused.and nn-therefore de* fectioe-</p> <p>Error, to ren-jjerjrfdgment, e/thanir^' stated in</p>

<p>Husband may demise such interest in his wife’s land, as 4o maintain ejectment.</p> <p>Title must correspond ■with demise.</p> <p>. ' . by'hu-band0’ and wife, of good!0 ’18 Ííef’t. enter-3th aQd general issue join-' ed, too late to object to insufficiency of service of notice, or of common order, or to declaration.</p> <p>Deed, attested by two witnesses, not admissible, on .proof of handwriting, of one who is dead, if the other be alive and in the . state.</p> <p>Private busi* ness insufficient excuse, ■ generally, for not being ready for trial, on calling of cause..</p> <p>Absence of witness to • prove vendor’s signature, but not delivery of deed, no cause of continuance.</p> <p>Judgment in name of lessor instead of being, in that. of-Iessee, is erroneous.</p>

<p>Court has nó right to direct jury to find interest, if jury have discretion to allow or with hold it.</p> <p>F purchaser oon-tract, avoid contract, he cannot recover of vendor, value of his tZtsZZpih.</p> <p>Wherever constituion or law, or judgment of cpm-petent tribunal imposes duty, promise Co perform it, will be implied.</p> <p>.... , and decrees, when stayed by injunction, supersedeas or appeal, bear ]™ss rendered 0n causes of action arising ex debelo.</p> <p>íudgmént for or o vem en ta panU°ws,U" comes under the act of’12.</p>

<p>Chancery. Case 29;</p> <p>Appeal from the Christian Circuit Bénjamin Shackleford, Judge.</p> <p>-Certificate, of publication. Dismissal. Situation. Possession. Bailee. Pawn or Pledge. Equity of redemption. Slates.</p>

<p>Indebitatus assumpsit, will not lie for any thing except money If pl’tff. claim common’ths. bank paper, in his declaration, endorse to receive it, and jury find verdict for it, ’tis error to renderjudgment for TiTt-ney.</p>

<p>ilea, to ac-«that°no consideration passed/rom For° may have been sufficient 2“ Óne’ ^ party, or gam to other, to tract'11 °°n" Issue on such cafería/™'</p> <p>flea to ao-tionon bond, ‘that horse, eonsideraHon •of bond, was not property ^P1Hp’*sno ’ pl’tff. may 0f some rafae.</p>

<p>Will case. Case 32.</p> <p>Appeal' from the Breckenridge County Court.</p> <p> Will. Attestation. Evidence. </p>

<p>Act of ’2d, authorizing judgments, to be entered in bank paper, has no retrospective operation. But if pptff. in prosecution of bis suit, and def’t in his defence consent to its retrospective operation, neither of them can, afterwards complain, of such retrospective interpretation.</p> <p>Bond, for common’ths. bank paper, does not bear interest, if prosecuted under act of ’24, and court should so instruct jury, if required. In all other oases of suit, on contract for commonwealth’s bank paper, criterion of damages, is value of paper when due, and interest, if jury choose to allow it.</p>

<p>CbVENANI1 Case 34.</p> <p>Error to the Bracken Circuit; W. P. Roper, Judge.</p> <p> Administration bond. Devastavit. Return. Nulla bona. ■ Sureties. Verdict. Costs. Judgment. </p>

<p>Declaration on administrator’s bond, for devastavit, ■must aver re» turn of ’nulla bona. 'issue found jor defendant, should be no judgment for ’ costs against him.</p>

<p>Whatever h well set forth in plea, and not denied in replication, is-' admitted to be true.</p> <p>ínsíííulinn oí action of re-plevin, by (U£’t. in execution, is con-{erupt, which ought to be severely pufl-isihod-</p> <p>real owner may maintain replevin against him therefor, It is a trespass' seize proper-tj, not owned by deft, in & t</p> <p>Action ofre-plevin, is not suiting* from illegal dis-Jg®8tse¿ja°ra e feasanfantf0 the like, S'yco-extensive Wlth trespasc, * ap-r a<in be-hali of all strangers to oxecution, whose property may be seized by officer under color of pro-process.</p> <p>Possession of bailee is possession of bailor. |</p> <p>General property is sufficient to maintain replevin, as a general rule. Therefore, to maintain replevin, not necessary that taking be from pl’tff. in action.</p> <p>Quaere. Does. naked bailment for safe keeping, give bailee such right, as to enable him to maintain re-plevin, if goods are taken.</p> <p>If sheriff take property not I liable, he is trespasser.</p> <p>In general, replevin can bo maintained, where trespass lies. 'ffertevin lies, i!legai se^uns by officers,</p> <p>Sheriff, or wait, until jur7is de~ manded by claimant of property, before he summon one.</p> <p>Finding of jnrj, against claimant, on trial of right of property, exempts officer from ‘suit on account of sale of property,’ that is, from liability, for value of property, converted by sale. But, 1 does not exempt him from suit, by real ower, for wrongful tailing and detention, or / abuse of pro-/ perty before sale-</p> <p>5>jnd¡ng<)f jury against ■ claimant, »a of property11’ Pre" owner from recovering . nominal dam-forlrespas^</p> <p>„ot0piea¿¡”" finding of .iul7 upontri-bar Vr justification of tres-Pa8S fyr Me-of Sievin’ M by real owner,</p> <p>Judgment for inre-^ch'damages assess for taking & detention of goods, and bis costs. Judgment for def’t. is for restoration of property, and his costs.</p> <p>If def’t. in re-plevin, justify under execution, he must aver, in plea, that goods were property of def’t. in execution.</p>

<p>111 U1UICUU for setting and keepii gaming tai or bank, it not necesss to state ho-much mom was lost, o: who lost it.</p> <p>Hor is it necessary, in such indictment, to designate name of game. For, courts do not generally Know tech-nics or appel-latives of gamblers.</p> <p>‘Game of cfiance, on a bank, or on a gaming table’ is sufficient description to fmport violation of statute.</p> <p>‘Game of chance,’ noi' sufficient description ; for it may have been on cards' or dice, and not on bank or table. Species of game must designated.</p> <p>cgmmou law, prisoner a11 prose-{^j right' to chal-lege 35jm-ors peremptorihi. g/right'Vf peremptory challenge was rednoed to 20 But, in prosecutions for misdemeanors was no peremptory challenge in England, when colloni&l charter was granted- to Virginia by James I.</p> <p>All offences punishable by confinement in penitentiary, are felenies.</p> <p>Right to writ Of error, and also right to peremptory challenge of 20 jurors, cannot co-ex-V*-.</p> <p>^S^ofper-challenge of ¡stTnVenaí cases,’but is allowed in all nalcasss™1"</p> <p>In prosecutions, for setting up and keeping a gaming table orbank,court have right to inslr^ict jury, as to law of case.</p>

<p>(Chancery. ' Case 38.</p> <p>Error to the Rockcastle Circuit; Joseph Evil, Judge.</p> <p> Injunction. Dissolution. Damage. </p>

<p>Medicines sold to def’t. on faith, in pl’tffs recommendation of him, if def’t. fail to pay for, them, pl’tff. may, and support as-sumpsit for money laid-out.and expended for def’ts. ifse.</p> <p>If pl’tff. has incurred legal obligation for •benefit of def’t. & at hii instance,discharge of . such obligation, by paying money, is groHnd of as-sumpsit, for money laid out and expended, for • use of def’t.</p> <p>New trial should not be granted,because jury disregarded erroneous in-stractionSt</p>

<p>Motion fay non-residents, to open decree within 7 years, and entered of record, no objection to motion, that court did not acton it, mt in. years</p> <p>jíex,IS hav., jns power by will, to soli land for payment of debts, sell more than necessary to pay debts, responsible to heirs or devi-sees, but bona fide purchasers ofland, having no notice of fraud of ex’rs. cannot be affected</p> <p>Adm’r selling slaves, when not necessary for payment of debts, liable for value of slave at time of final decree, and reasonable hire, from time of sale. So, ex’r. improperly selling land, when not necessary for payment of debts, responsible for value of land, at time of final decree, and reasonable r nt, from BuTheiror' devisee, noth receive pay, dr rent for jnarle otAand after sale, by -labor of nth-'injured byb0 waste.</p> <p>In every such deviseeV abandonval-ue of land & rent, & claim which It was sold, and in-ferest thereon</p>

<p>Decree, subjecting land to sale for payment of purchase money, should direct only so much, to be sold, as will satisfy debt. Vendor.of land, taking personal se- . curity for consideration waives his equitable lien on land.</p> <p>If vendor has taken personal security far purchase money, insolvency or non-residence of both principal and security, necessary to-give chancellor jurisdiction. to sub- ... jectland to payment of purchase money. ' Bill to enforce equitable lien, is proceeding in rem. And in such case the thing gives jurisdiction tho’ def’t. reside not in the country.</p>

<p>Debt. Case 42.</p> <p>Error to the Montgomery Circuit; Silas W. Bobbins Judge</p> <p> Mon-joinder. Injunction bond. Estoppel. Unsealed writings. </p>

<p>?0IlcIiaE w TAINER. Case 43..</p> <p>Error to the Gallatin Circuit; Henry Davidge, Judge.</p> <p>Forcible detainer. Traverse. Judgment.' Contract. Non-suit. Order.</p>

<p>Assumisit. Cuse 44;</p> <p>--Error to the Madison Circuit; Rtchard French, Judge-.</p> <p>''Won-suit. Promisory note. -Assumpsit. Consideration; Orders for money.</p>

<p>^ ex mquo etbona, recoverable m assumpsit..</p>

<p>’ Vendar of ■ equitable ¡fight to land, retains lien -is ü fsf soft' sideration, whenever, under same f legaHitle11 ° would hold equitable lien-</p> <p>.Assignor of.y^ance of*”’" 'ugattiúeto• land, not necessary party > conveyance, But assignor of equity in “®V to suit against ven-e</p> <p>Bill, against vendor of e-quily to coerce from him legal litle, must aver payment of whole consideration.</p>

<p>Moriptt. Case 44.</p> <p>"¡Error to the Livingston Circuit; B. Shackxeforp, Judge,</p> <p>Distress Warrant. Sheriff. Replevin bond. Interest. Statutory bonds. Common lata bonds. Motion„ JVoiice.</p>

<p>Error, to ad-"fwhata Wunesssta-ted in ano-thN cause5 without accounting for absence of witness.</p>

<p>Trespass m et .armis, may be maintain-sd by owner, for privation of possession of slave, tho> no force employed by wrong doer.</p> <p>'In all oases of trespass quare clausum fregit force is implied.</p> <p>I'resp’ass lies or enticing may slave, n trespass, uries are au-horized to five smart naney.</p>

<p>ResponsM-*7 of sureties outcTto^6' county court, on establishal and remedy to enforce it, w^and bill’inchan-eery,</p> <p>Altho’ debt, does not plead statute of limitations shewyin'his8 answer, that he intended lufficünt'to’ entitle him to its protection</p>

<p>Chancellor, gainst'notea" for “current money of where°iVa” pearifthatP" conttaot, was for current pa* ban'</p>

<p>Covenant-Case 6&</p> <p>Error to the Garrard Circuit} John L. Bridge?, judge.</p> <p> Legatee. Distributee. Executors. Administrators'. Official bond. Action at law. </p>

<p>Replevin, Case S3.</p> <p>Error to the Franklin Circuit; Henrv Davidge, Judge.</p> <p> Replevin. </p>

<p>Di!BT Case 54,.</p> <p>Error to the Gerrard Circuit; John L. Bridges, Judge.</p> <p> Plea. Accord and Satisfaction. Renewal, of notes. </p>

<p>Covenant,. Case 55.</p> <p>Error to the Franklin Circuit; Hemmt David ge, Judge.</p> <p> Covenant of general Warranty. Forcible entry and detainer. Restitution. Possession. </p>

<p>TnEsrASf„ Case 56.</p> <p>Error to the Metier Circuit; Wm. L. Kelly, Judge,.</p> <p>Will. ' Evidence,</p>

<p>assume Case 57.</p> <p>iCrror to the Franklin Circuit; Henry Davidge, Judge.</p> <p> Corporation. Contracts. Seal. Bp-laws. Officers. Record. Assumpsit. </p>

<p>1ÍHTINUE. Oase 53.</p> <p>Error to the Scott Circuit; Thomas M. Hickey, Judge.</p> <p> Execution. Delivery to officer. Levy. Advertisement. Possession. Distribution. </p>

<p>Chancery,... Case 59.</p> <p>Error-to the Nelson Circuit; Paul J. Booker, Judge,</p> <p>Parties. Guardian ad litem. .</p>

<p>Detkui . Case 60.</p> <p>Error to the Warren Circuit; II. P. Broadnax, Judge.</p> <p> Award. Judgment. </p>

<p>Chancery. Oase 61.</p> <p>Error to the Christian Circuit; B. Shackleford, Judge. .</p> <p> Certificate of publication. Assignment. JYotice. Payiment. Assignee. </p>

<p>iVloTION. 'Case 62.</p> <p>Error to the Barren Circuit; Benjamin Monroe,.Judge.</p> <p> Execution. Return. Entry on execution hook. </p>

<p>Rejection oí evidence, ® materia! fact error.</p>

<p>Pa rty seeking ; specific pel ,'formanoe mil ist shew that he has been guilty ‘ol no misrep-resentions or concealment, and evinced honest promptitude, to comply with contract</p> <p>Chancellor, Dot il-porfomamte of ««;•?/fair contract, {el'ai remedy is inadequate, that clmncel-cree'specifio performance, in general, chancellor willnot de-ore® specific, ofcontrnct'" for chattels</p> <p>in tvi.o ■ ;nnsfc •aari't»3 llC</p>

<p>Oiusoiuir. Case 65.</p> <p>Error to tho Montgomery Circuit; Sri-As W. Robbins Judge,</p> <p> Note. Mistake, Equity. </p>

<p>Where indeb-]¡r) justice of peace hasju-nsdiction.</p> <p>í^ro^riate remedy against agent, ney5 00lleot~ ed for pl’tff. »thers.</p>

<p>Wife’s equity *n may by her and1* dur-ingcoverture, agination** recording’ deed in proper office.</p> <p>By common not convey her real éstate, by deed and nation, and title must ren ^“"lin ber r¡a”eS maC’</p> <p>Deed, 0on? veyins; wife’s eqvRy m her during cover-ture, imísíbe recorded in fnuproper office; otherwise, ofn" effeo£‘-</p> <p>Deed otfeme covert, will pass no interest in her land,except in her sepa-róle estate, unless her privy acknowledgement is recorded in proper time. Nor will chancellor otherwise enforce contract.</p> <p>Qua re. Land conveyed in esTof/á™" covert and her heirs, can shq currence of i,er equitable interest,</p> <p>By common law, if only authority to sell land-wilhout interest be given to executors, sale not valid unless they all unite in it. But if laud be rie-vised to executors to sel!, those who qualify may sell.</p> <p>By statute,! such executors as fy, may sell land devised to lie sold, if no other person appointed for that pulpóse.</p> <p>‘Devise to executors, to sell land, jis they may judge necessary, does not authorize, one executor to sell.</p> <p>. ^‘ses’e“jtliat lancl," for payment o.fdebts, if personal insufficient,” gives power to executors who qualify to sell.</p> <p>ifex’r;hav-ins; authority-for- payment of debts, in ' set?, sell ^niency^of' asset», sale is, nevertheless, mlld'</p> <p>To obtain re-Hef against ground that consideration wascommon-wealth’s paper, mmtbe that not” was procured for dollars,thro’ take,</p>

<p>Error to.the.Union Circuit! Alnbv M‘Lean, Judge.</p> <p> Executors. Authority to sell land. Devise. Assets: Commonwealth's, bank notes. Fraud. Mistake. Allegation, </p>

<p>Period between 30th Nov. ’24, and íst. of Aprii, ’27, is excluded from computation of limitation to writs of error.</p> <p>If vendee receive pay for improvements on e-viotion, and afterwards., vendor establish his title to bo paramount, ven-dee may be compelled to refund to <>-• victor what he has received for improvement'-</p> <p>If vendor, or. eviction of refímrled'co sideration &" interest, ven-sjble'fo'rrents" but must be f paid for per-* “n(l provemen™”</p> <p>Tietils should be regulated by znterest, on consideration money, and on value of improvements, being neither greats cr nor less than their - united ain’t.</p>

<p>To sustain pút^tetes'ti-mony, com* plainant Y1" jn relation to° which testi-is to bé' e‘ ‘</p> <p>. Kill, to por-pinato't.-sti-m.kic’Kr w •' **:*;..- b', '’ ! : ’ K"■ ■■!. "I*''*</p> <p>Gross bill must be confined to subject mutter of bill.</p>

<p>Overruling motion for continuance, and rendering decree, when motion should have been sustained, is-error.</p>

<p>Chancery. Case 72.</p> <p>Error to the Jefferson Circuit; Henry Pirtee, Judge. __</p> <p>Cestui que trust. Chose in action. Execution. Chancellor. Maintenance. Decree. Trustee.</p>

<p>Consideration paid, is Measure of assignor’s responsibility .</p>

<p>Chancer*-</p> <p>Error to the Mason Circuit; Su,As W. Robbins, Judge.</p> <p> Injunction. Sale. Equitable interests. ■ Trustees. Statute of frauds. Possesion. Slaves. Limitation, Execution. </p> <p>Case 74-,</p>

<p>Error to the Clarke Circuit; Richard French,Judge,.</p> <p>Chancery. Case 75.</p> <p> Lost note.. Allegation. Demurrer. Answer. </p>

<p>Error to the Clarke Circuit; Richard French, Judge.</p> <p> Commonwealths bank notes. </p> <p>Covenant., Case 76.</p>

<p>Error to the Gallatin Circuit; Henry Davtdge, Judge.</p> <p>Town lots. Specific performance. _ Parol contracts.</p> <p>Chancery. Case 77.</p>

<p>chancer*. cage,78.</p> <p>Appeal from the Warren Circuit; Henry Broadnax, Judge.</p> <p> Lost writings. Chancery. Jurisdiction. Rent. Limitation. </p>

<p>i Chancery. Case 79.</p> <p>Error to the Jefferson Circuit; Henry Pirtle, Judge</p> <p> Voluntary deeds. Creditors. Statute of frauds. Con•veyances of Choses in action. Execution. </p>

<p>Vide Co9by Vs. Ferguson tmfe,</p>

<p>If plea impeach consideration of contract for failure, an entire failure must be averred ; iffor-fraud in contract executed, an offer-to return thing received in reasonable time af-oTfrt ud° must' be alleged sworn^in each case,</p>

<p>Not duty of court' ex offi-cio,, to appoint com-misionera under occupant laws.</p>

<p>Sale oí town idt by constable, is vo id,</p> <p>Recital ia writing, between constable and Owner of town lot, that lot ‘‘was legally sold by ■constable,” will not operate as con■firmation of sale, in favor of purchaser, under constable’s sale.</p> <p>'Contracts, relative to land, must express, in writing, ^hj¿b°”wne consents”)^ part with title to lancS</p>

<p>If proof will not warrant verdict, error to overrule motion for instruction, asi» case of •aon-suit.</p>

<p>Motion. Case 85.</p> <p>Errcr to the Madison Circuit; Richard French, Judge.</p> <p> Judgment de bonis propriis. Clerical misprision, ihnenament. </p>

<p>chance» Case 86.</p> <p>Error to the Clarke Circuit; Wm. P. Roper, Judge.</p> <p> Mandates of new court. Arbitrament. </p>

<p>Non-suit; suffered by ap-pellee, on appeal from justice, no bar-to bill in chancery, for same cause of action. Finding lost noi.-'-,. after suit in chancery instituted for recovery of its ain’t does not oust chancellor of jurisdiction.</p>

<p>Chancery. Case 88,</p> <p>Error to the Scott Circuit; Thomas M. Hickey, Judge.</p> <p> Mortgage. Foreclosure. Parties. Writ of error. </p>

<p>Chancery. Case 89.</p> <p>Error to the Grant Circuit; H. O. Brown, Judge.</p> <p> Dissolution of injunction. Affidavit. Discharge of injunction. Dismissal of bill. </p>

<p>Essential difference between forcible entry and forcible de-tainer.</p> <p>If, in proceeding “for forcible entry or detainer,” jury in country, find def’t guilty of forcible detainer, only issue involved on traj verse in circuit court, is, “was def’t. guilty of forcible detain-</p>

<p>Chancery. Case 91.</p> <p>Error to the Barren Circuit; Benjamin Monroe, J udge.</p> <p> Set-off. Judgments. JVon- residence. Insolvency. </p>

<p>Debt . Case 93.</p> <p>Error to the Madison Circuit; Richard French, Judge.</p> <p> Judgment for damages. Interest. Court. Jury. </p>

<p>Witness who attends and ¡¡ETT ■whiotThe has acknowledged by written pay for his •’attendence.</p>

<p>Trespass-Case 94,</p> <p>Error to the Bourbon Circuit; Richard French, Judge,</p> <p> Trespass. ■ Possession. Lender. Loanee. </p>

<p>Widow and heirs may maintain trover against person, who, as adminis-tra tor* sells property, not liable to sale by adm’r. im dor act of’21,.</p>

<p>íí/»VENAN'i'» Case 95.</p> <p>Error to the Montgomery Circuit; Sí las W. Robbins, Judge.</p> <p> Costs. Covenant.. Set-off. </p>

<p>OoVISNANTo Case 97.</p> <p>Error to the Todd Circuit; Henry Broadnax, Judge.</p> <p>Covenantor. Covenantee. Notice of suit pending« Judgment. Paramount title.</p>

<p>Asstraipán1. Lase 98.</p> <p>Lrror to the Franklin Circuit; Henry Davidoe, Judge.</p> <p>Assumpsit.. Endorsers. Bills of exchange. Accommodation notes. Holder. Drawer. Due diligence» Insolvency.</p>

<p>Motion. Case 99.</p> <p>Error to the Floyd Circuit; S. W. Robbins, Judge.</p> <p> Judgment. Hqbeie facias. </p>

<p>Chanced. Case 100.</p> <p>Error to the Jefferson Circuit; Henry Pirtee, Judge.</p> <p> Devise. Annuity. </p>

<p>in suit-by- as-signee against assignor, of replevin, bond,.if declaration, in setting out sieps taken on bond, shew, due diligence, supersedes necessity of a-verment of due diligence</p> <p>Omission for six months to tloif^vhen" probability ot finding proP“fy> ^f°ct</p> <p>year) to send, execution to co.u,5ty where replevin bond, reside?, fatal defect of diligence‘</p> <p>After assignment of re-plevin bond, assignor has no longer any control over it, nor is sheriff' bound to Obey his defections.</p> <p>Assignee of judgment, entitled to exclusive control of it.</p>

<p>Detinw Case 102.</p> <p>Error to the Garrard Circuit; John L. Bridges, Judge.</p> <p>JVeai trial. Motion. J oli prosequi.</p>

<p>Wide Frame '3niJflbble’</p>

<p>Verdict against executor,, on plene adminislravit, judgment should bo de bonis testatoris</p> <p>Plea,‘nothing by “l65®6"* ,°r cation’ ‘that* def’ts.’have, by deT»98* -raffioientto-pay debt,’ and issue diet for pl’tSs. tbatsuch ver-diet Gndval-ue of estate</p>

<p>Covenant, Case 105.</p> <p>Error to the Todd Circuit; H. P. Broadnax, Judge.</p> <p>Amendment. Date. Commonwealth’’s bank notes. Continuance. '</p>

<p>Chancery. Case 106.</p> <p>Error to the Bourbon Circuit; George Shakkon, Judge.</p> <p> Entry. Notoriety. Survey. </p>

<p>In all doubtful cases, contract will be construed to be mortgage, rather than conditional sale. Execution of defeasance, simultaneously with absolute conveyance, constitutes them, in law, one instrument and wilt generally make contract mortgage.</p> <p>Parol proof of'pmrtiesj1011 adm s,ib)e to Hi(1 in con* writing off doubtful import on its ^^00^°-wuysudmissi-ble to prove o^ui^aiTtv^’ 0f contract, or cousidera-Í!“n’ It tran-aotion be “a borrow->n'í «n'llend-that'-Ved'ab-solute on its face, was in°“ly foVmTiII/I h purchaser after his purchase, that turner owner Xase property within conditional sale,</p> <p>H no othf-r fact ti> illiis-trate intention of par-tios, than absolute sale by one and sira-uitaneous condition of defeasance, delivered by other, court will construe contract to be morta;as;e. In such case, therefore, “onus” devolves on party , who insists that contract is conditional sale.</p> <p>Fact that contract is executory, will perse,make it mortgage, rather than conditional sale, cieteris paribus.</p> <p>Husband may convey his right to profits of his wife’s dower lands, during tov^rture.</p> <p>Chancellor will not compel or invite husband to influence wife to surrender right which law has vested in_her.</p>

<p>Devisee hold-^erwil),^ cannot recov-^in^any°property devised by it to other8"</p> <p>in detinue, statute oflim» itations maybe given in evidence under general issue.</p> <p>Five years uninterrupted adverse possession of slave, not only bars remedy of real pwner, but vests absolute legal right in possessor.</p> <p>Time does not pay debt, but may vestright t» property.</p> <p>“Whatever owefnothingj #i trial, ad-agSsibl„ndlr noTassmipsit although it ia in past tense»</p> <p>'indebt and assumpsit, itation must' be pleaded,</p> <p>Five years advérsenos-1* session of slave, not Telb bu/dé-itoys right. '</p> <p>And such pos-enable posses-sortomain-tain action rs ave.</p> <p>Petition fora Te"liearmS'</p> <p>Beüfion for re-hearing.</p> <p>Petition- for a re-hearing,</p> <p>Petition fora re- earing.,</p> <p>Response to the petition</p>

<p>Detinue. Case 109,</p> <p>Error to the Franklin Circuits Henry Davidoe, Judge.</p> <p>Detinue. Limitation. General issue. Evidence.</p>

<p>Debt. Case 110.</p> <p>Error to the Montgomery Circuit; Silas W. Robbins, Judge.</p> <p> Appeal bond. Dismissal of appeal. Sureties. </p>

<p>Motion. Case 11Í.</p> <p>Error to (he Hardin County Court.</p> <p> Collector of militia fines. Motion, County court. Jurisdiction, </p>

<p>Chancery. Case 112.</p> <p>Error to the Mcsrcer Circuit; Wji. L. Kelly, Judge.</p> <p> Commonwealth's bank paper. Fraud. Mistake. Dissolution of injunction. Damages. </p>

<p>Bill, for con-vojanceof land) must such particular jandfas'vvill enable' chancellor to de-°é°eUnceoon" 'eJunoe'</p>

<p>Oetinub; Case 114.</p> <p>Error to the Lincoln Circuit; John L, Bridges, Judge.</p> <p>Slaves devised, not assets. Executor. Refunding bond»</p>

<p>Verdict should not be cep fin case* of clear and Arrant in-when^’re-ponderenee of evidence is that^'incT rests with unwavering Verdict never dence is nearly equipoised’,</p> <p>Testimony ot one of jurors, mis'c'onduc'uf jury as will invalidate parity of their motives, orto which influenced them, withview to dmt^inadmi's-«Me!</p> <p>Testimony of juror.- to invalidate ihoir verdirt, only admissible in cases of mistake, which do not subject jurv to anj imputation of impure motives or palpable impropriety of conduct. Ami in proof of such mistake, must be no ground to suspect that jury bavo been tampered with.</p> <p>If, by testimony of jurors, it appear that one of jury never agreed to verdict, and remained si-tent on its return, thinking himself not required to object unless called on, no ground to set aside verdict; because, such testimony inconipe-tent.</p>

<p>If no judgment for restitution, in favor of tra-verser, who is pi’tff. in warrant of forcible detainer, travel see cannot appeal. Because n« franchise or rechold is affected.</p> <p>Petition for a* re"lleaiio3*</p> <p>Vetition fora it leanng.</p> <p>Response to the’petition</p> <p>■Replication lo response.</p>

<p>Appointment oi ?}e.rk is not 5*3&Si ¡^rinsicaJlv-executive. #</p> <p>Neither writ of error nor * ®’'Irsela executive act.</p> <p>Appointment ofol'Tk when no vacancy, is illegal.</p> <p>Appointment of ciork, by county court, isnojudg-rnentor de"cree.</p> <p>Jn every writ of error or udgment, must bo actor - d .reus.</p> <p>.inferior courts have no power to remove their clerks.</p> <p>Writ of error will not lie to order of county court, displacing guardian. Because, act of court is eajec-,«<(iw,</p> <p>If court ap--poinl °.lerk’ cWk&hipto be vacant, lvhe” th®ro 13 error is execu~ cial."0t^udi_</p> <p>sanation of paymaster of U-S. army is .””0^tanoe<I 0fit, by clerk of county court, will vacate his °Lrkship,</p>

<p>oi claimant, protects all wh" b°jd in'oatrV,tnan survey,</p> <p>Ifporsoii, "u-ike entry iñ'hís own name, on [eal warrant, and caUon 'inur’ss to them,</p> <p>Land warrant js valuable seen.’able, ami therefore devisable.</p> <p>wner of en-v only, may -oscoutesuit chancery, cainst ano (r who has (tent to me land, annot sue itil adversa-pa tent has emnn ' era-tent) ,ue possession or not.</p> <p>Lappeof20 years, ¡rom date of elder noHjarpniUn chnneery on elder entry, UI|1‘;ss P;>h;n-tec has been inpommm.</p> <p>Limitation to suit in chancery, by owner of elder entry, against elder paten-tee, commences running, with possession of paten-tee, after date flf patent.</p> <p>■ Entry in name of “heirs” con-8tr,,<'<11° ve6^ ’ equity in dc• visees^ if (Jevi-■?eef entitled ’to it.</p> <p>¿teneral'y, if tenant of par-lie barred, limitation or otherwise, contingent remainder, barred.</p> <p>IYpartios entitled, as de-visees, to recover, sue sth heirs, bill should bo dismissed, without prejudice.</p>

<p>decided enee°of 'testi-muny,ua to render ver-diet against evidence, f00li S1t;u.ik! for now trial;</p>

<p>Twenty years possession 6y vendee, under deed, is bur to bill in equity, to reduce quantity contained withm boundaries of his deed.</p>

<p>chano Case 122>.</p> <p>' Error to the ClarUe circuit; George Shannon, Judge.</p> <p> Dissolution of’ injunction. Damages. </p>

<p>Decree,, dissolving in-ascertain amgru^ale «“«““t of “a““a£cs-</p>

<p>Chancery . Case 123.</p> <p>Error to the Boone Circuit; H. O. Brown, Judge.</p> <p> Order. Equitable set-off. Unconnected demands. Costs. </p>

<p>Afterevicliont tak^Mter under ad-ver°e title, by</p> <p>Atioriiment oí tenant to any stronger, is void, unless with con-sen! ol iand-lord, or in con-equence of ajudgment, order or decree of a court.</p> <p>One who enters under an executory contract of purchase, is as much bound to be true and constant to title of his vendor, as if he had entered as tenant.</p> <p>Vendee having recovered his purchase money, is under every obligation of law, & good faith, to restore possession of land to vendor. Cannot defend himself by gainsaying vendor’s title, or pleading that of a stranger.</p>

<p>Assumpsit. Case 125.</p> <p>Error to the Garrard Circuit; John L. Bridges, Judge.</p> <p> Assumpsit. Commonwealth"1 s bank notes. </p>

<p>Return of‘no inhabitant of wick,’by deputy sheriff thorizeabate-meiit.</p> <p>When various persons made parties, error to render judgment against ‘defendants,’ generally, without abatement or discontinuance, as to those on whom process has not been executed.</p>

<p>Owner of an-Jarils, manm-etie naturie, bound to confine them on bis own land, and if they escape and trespass on land óf another, unless through defect of fences, which latter ought to repair, their owner liable to notion of tr-spass. (¿«ture. How far this doc-_ trinéis appliable to our country?</p> <p>One. man is not liable in action of trespass for depredation committed by cattle of another, unless done by his agency.</p>

<p>Debt. Case 128,</p> <p>Error to the Madison Circuit; Richard French, Judge.</p> <p> Sale bonds. Statutory bonds. Scire facias. Demurrer. Execution. Irregularity. Purchaser. </p>

<p>Record of a snib »ot *’vi-one°^h¿eainSi no party WaS5</p> <p>Fraudulent 9al¡ of horse, ■■will not enable vendee, to recover the horse from a subsequent bona fide purchaser.</p> <p>If verdict be agaiirit testimony which is of such character, when properly scrutinized, as to leave no reasonable excuse for doubt in an intelligent. & discriminating mind, new trial should be granted.</p>

<p>Appeal will not lie, unless from a judgment or decree 'amounting to $100, or touching a freehold or franchise,</p>

<p>Sf one of joint oblijfors in "ote’ 0,1* ligoe may° proceed in sub'e^tTab ^ sentee's^fto-sesin artimt, ^fr^ddit* 0 118 c</p> <p>Obliffee not secute resí-1'0'" dent, oblizor to insolv' noy, ínto chancery In such case, resident obli-¿¡es.</p> <p>*-)iffcr.enoe'in tha terms ‘absent de-as <• ,gSg and^nonresidents.”</p> <p>p-creditor of “rbrent de-te«ilf>nt’ wish him’eiffñím6 ),¡IVBient of n'U-ntt on J.in7. hands, he must pay the money into court.</p> <p>Petition for a' re-hearing.</p> <p>Petition for re-hearing. a</p> <p>Petition lot e re-hearing.</p> <p>Reply to the petition.</p> <p>Reply to the petition.</p> <p>Bpply to the. petition.</p> <p>Tteph o the petition.</p> <p>to the reply,</p> <p>Answer to the ■reply.</p> <p>Answer to the rep</p> <p>Reptfc-<tion t0 an*,4rer--</p> <p>Replication to answer.</p>

<p>Chancery. Oise 132,</p> <p>Appeal from the Soott Circuit; Thomas M. Hickey, Judge.</p> <p> Security. Witness. Deposition. 'Competency. Paying money in Court. Releiseof tesponsibility. </p>

<p>piea, that a”v*oonside-ration, is Sooi-</p> <p>Pica, that "„tedwithout any ‘yocr»y consideration Because there may have rat¡on.1S1 e*</p> <p>be valuable consideration which i« “not valid in law.”</p> <p>piea, that ‘note was.ex * ccutt’d without any tiood or Y'üuablo consideration,” is suf-íicionr. May be consideration in /ac¿, thr ’ in, tav n be invalid.</p> <p>Legal Invalidity or vice of the í'on4«í-e ration, was pleadable at common law, in suit on bond. But idea of “no con-ido-raiior.” in fact. wa» inadmissible unul statute of! 801. Be-CMUf) fliflt •were to Contradict bond.</p> <p>At cuinu-on law, iJ'ron-sidetatu.n wc re ill* *»al, necessary to aver tbc facts in ordt r to pí'Ui. anO to enable court f<> ■!r-termioí' v. he-tb* r facts amount to bar to action I)i ft tint, al Jowod to plead, ;.ene-tallv, lJhat oondderali-'n was vu-ions,’ or 4¡le .aV or ‘invalid in Jawp”</p> <p>Pica that note was-“not executed on a consideration, e:ood and valid in law,” would have been bad at common law, and is equally so, under statute ot' 1801. Statute of 1801, allow3 a plea to action on \ond denying that, there was any consideration in fact, or a plea, shewing that consideration has failed. Provided, bond does not expressly ae~ knowledge a particular consideration .</p> <p>Pica to action must state facts.</p> <p>Plea, “that consideration ha= (¡iíIp i,” without shewing how is bad.</p> <p>Proof of vicious ur illegal condsider-ation, will not support plea of “no consideration. Ml vice versa, pio->f of no consideration will not sustain plea, “admitting a consideration, but denying its legality.”</p> <p>Under plea of “no consideration,” proof of failure of consideration, is inadmissible, and unavailing.</p> <p>Prnoi that consideration has failed, wi 1 not sus-tai idea, that “note was not executed on con-sidera lion good and valid in law.”</p>

<p>Statute of 1811, when ther.uit is reserved in acl'oTvhedn-ia, of 1748, Jtl. Digest, oateá tipon" the opinion, that distress K.TS-“an^démise o^l^se6™158 contract, whatsoever.”</p> <p>Distress warT®nt ci*nnot upontheoath of landlord to whom the ^ payable styling party upon whose does not ne-’ cessarily ex-i^was not landlord, and t0</p> <p>Diátress war. rant not void through the which rent i duo be omit-</p> <p>Action of trespass b-- 1 constable1, Tor entering his close, and away'hfs corn, rúate ovi-denoe, and if a1'” Tr"0’6’ tion!'1Ca"</p> <p>Chango in the tress'by dlS' landlord, at common law, "tatute'oriil6 181 tylt. -Dig. ¡059.</p> <p>Provisions of the; act of 1748.</p> <p>The officer not confined to. malee hi,; distress on the demised premises, he may execute his warrant, any where within his bailiwick.</p> <p>2(1> seo_ of the statute o,f 181L abr°-fnmfnmf i,OT rule, which the °[a. ble to distress and nothing 0f theiand-lord, oxcept sub-tenañt,'</p> <p>4th sec. or so-ued™'1' Landlord has ?nlV a Prn-otherTralit-ora, so long a* the produce ro‘nains on premises, or he pan dis-triu“for lni rcar.</p> <p>Neither the common la w nor statutes, authorize produce sold bona-fide, and removed (rom the premises to be seized and distrain- . 4.</p> <p>If produce distrained liable to distress not affected by the defendants having other property.</p> <p>3d sec. of an act of 1811, giving double damages »>;»inst^hnd-wron^ful^dis-tress, does not ®pply '.° °®' virtutfofVi” tress warrant,</p>

<p>Bill in chan-eery to ob‘i'aUa'w should shew, that eompl’t. could not move tor new trial, during-‘l*, ment was</p> <p>Upon change of venue either party may transmit the papers. And no ground for new trial, on part of him who obtained change of venue, that his opponent transmitted papers, and obtained trial, without his knowledge.</p> <p>Where payments are made after breach of povenant, defendant, niay insist on them at law, or neglect to do so, if he pleases, and resort to chancery, to obtain them. Because chancellor has original jurisdiction of credits for payments after the day.</p> <p>Complainant shewing himself entitled to any credit, whioh jury did not allow on trial at law, to that extent, chancellor will give relief.</p>

<p>Motion. Case 136.</p> <p>Appeal from the Gallatin Circuit; Henry DAvrDGE, Judge.</p> <p> Surety. Replevin bond. Statute of frauds. </p>

<p>Chancery. Case 137.</p> <p>Error to the Mercer Circuit; W'm. L. Kerry, Judge,</p> <p> Review. Discovery of new evidence. Writ of error. </p>

<p>-Covenant. Case 138.</p> <p>Error to the Lincoln Circuit; John JU Bridges, Judge.</p> <p> Penal bonds. Action of covenant. Breaches. Condition. Accord and Satisfaction. </p>

<p>cess hasPbe¡n served upon Part oniy those against whomitissu-ed’ plea filed gTneraUy8'” ^innot be’ considered as plea of a*l °f them, aitho’ saed as part ners’</p> <p>Return of »n.o inhabitant”" of the county, anabufp°nn? m* '</p> <p>ff abatement has been ea-tered as to one of def’ts. before verdict permit'sheriff to amend bis return, after verdict and as£to°authorize the abate-</p> <p>Oonfessionsof are noievi-’ 'deuce against his co-part-counTof each having been served with process, but on account of their unity as partners.</p> <p>Acknow-tedgnment of one partner, concern1”of° partnership, are binding upon the others, though nolle prosequi has been entered as to party, whose admissions are introduced as evidence.</p>

<p>Chancery. Case 146,</p> <p>Error to the Clarke Circuit; George Shannon, Judge.</p> <p> Joint assignments. </p>

<p>Debt. Case 141.</p> <p>Error to the Greenup Circuit; W. P. Ropek, Judge.</p> <p>Administrators. Slaves.</p>

<p>Assignment of a those in «*. tíPn"‘ ”,otas' lá^fdoes not vest assignee right to sue in his own the rialTliubklo the action, Botifassignor anj8col/eot^ the money, may not ag-signee recover an implied°n aBSUinP,it?</p> <p>If the effect of an instruction to jury be such as the facts authorized, tbejudgment will not be disturbed because opinion of court was given in an improper form, or was founded on a misconception of law.</p> <p>Assignment!)! benefit of suit by pl’tff does not bind pl’tffs lawyer, to pay proceeds of suit, when collected, to assignee: and should lawyer, even after notice of such assignment,, pay over proceeds ol the. suit to pl’tft' or his order, assi’ee. cannot maintain assump-sit therefor, against .aw-ver. But should law-proceeclsoi* suit, to such assignee, per-be liable to his client thy re-right to them.</p>

<p>Appeal. Case 143.</p> <p>Error to the Harrison Circuit; H. O. Brown, Judge.</p> <p> Jurisdiction. Justices. </p>

<p>Title bond for land, to be pa-d for by in-talments, containing following clause, ‘but if said ven-dee fail to make good the above payments, in that case, above tract of land to revert back to vendor,’ does not authorize vendee to surrender land, and rescind contract at option. Clause, a mounts to no more than what law is, that if purchase money is not paid, vendor shall hold title.</p>

<p>A trust re-[avor whoseftmds have been ap-^ohase^f property, although the purchase be made in the name °r an°does’ a^tnist” resMUnfavor of a person, if íhe ProPerty wlthhismo-aey, and <-x-pressly for hie benefit.</p>

<p>Patentee entering u non Sand,contained in his patent, with intention of taking possession of his whole claim, shall be considered in possession to the extent of liis patent boundary.</p> <p>Where there are two interfering patents an entry under the junior patent,on a part of the interference, with intention to take possession of whole, gives to the person making such entry, possession of the interference, to the extent of his claim.</p> <p>20 years’ coni tinued adverse possession, will bar an ejectment, unless pl’tff. adduce some proof shewing that the adverse possession did not toll his right of entry.</p> <p>Junior paten-tee, entering on an interference, with intent to take possession to extent of his patent boundary, and building on & clearing part thereof, acquires actual possession of the whole interference, & his possession will not he di--vested by the occudomiliti-cursionsoftho eMer paten-tee, 10 out timber or dire rook.</p>

<p>Assumpsit.. Caso 147.</p> <p>Error to the Fayette circuit; Thomas M. Hickev, Judge.</p> <p> Parties. Witness. Mew trial. Affidavit. Discovery of new testimony. </p>

<p>Forbearance or passive indulgence by obligee, will not release a surety. But any settled agreement, or activeinterfe-rence by obli-gee, whereby the surety may be injured, or subjected to increased risk, or deprived of or suspended in the assertion of his equitable right, to force obligee to sue the principal, or of his rigt to pay the debt, and occupy the attitude in equity, of the obligee, . will release the surety in equity.</p> <p>Any aot of creditor, which entitles principal to indulgence after the debt is due, according to the terin= of the original con- ' — :-~"“ equ¡ty, charge surety who has not theirnlul-*0 gence. Sure-fi’s consent |,ence olUic principal, cannot be in-hj^snenciTor neutrality, evinced some positive aot-</p> <p>a‘novation’ may discharge a sure.-^sented to it</p> <p>If thecreditor J'artb^’;™ith' any^rouhse to do so, all ^ author>-thnthi* nega> tive conduct will not exonerate the surety. If, tends to Vor,-bear, he sh?ultl aP-. oipalof^at' intention, or should give an rtiiit/c Oí indulgence, without i^t^nyr valid contract i.o forbear, it is lar from being a i ecessa-ry consequence of any established principle of equity, or known dictate o' reason that the surety should be relased.</p> <p>Stay of execution, by creditor, after a levy of it on the property of principal, ■tvillexone-rate surety, if the lien resulting from the levy be extinguished, and surety do1 not tip- . prove the indulgence. Nor is the release of the surety less complete, though the prom rty levied upon was insufficient, to discharge the whole debt.</p> <p>To a bill by surety,in replevin bond to be released on account of a stay of execution, granted by the creditor, to the principal, the co-securi-ii(-s and principal are necessary parties</p>

<p>Chanced - Case 149.</p> <p>Appeal from the Union Circuit; Alney M‘Leaw, Judge.</p> <p> Surety. Attorney at law. Equitable owners of execution. Parties. </p>

<p>in general, billeof review and bills to ■impeach decrees for (i'aud, should terminate by setting aside the decree, reviewed or impeached, and if it was obtained by the default of the def’ts they should then be permitted to fije answer, or plead, so that the matter of the original bill, may be litigated be^ tween the parties.</p>

<p>To enabJe vendee to obtain reciftion .ofth© contract, after acceptance of a deed,there must be an allegation of fraud, in sale or conveyance of the land. To warrant relief, on ground of fraud, it must be clearly & satisfactorily proved,especially when it is positively-denied by the answer. If the contract be executory, vendee will not be compelled to execute'it, by accepting a deed, upon proof that .verdor has no title. But where contract is execu* ted by ven-dee’s having accepted a deed,and been Jet into possession, a Court of equity will not decree a recision ofthe contract, merely on the ground of a defect of title, vendee’s remedy is at lato, for breach of <vhe covenants contained iu ^eet'’</p>

<p>If a devisee declare for breach of a covenant warranting to, testator, the title to a tract of land; he must aver in his declaration, that he is devisee of the tract oí1 land, or of the whole title to it; otherwise it will be bad on demurrer. But want of such allegation, will be cured after verdict.</p>

<p>Order, drawn on a particular fund, is not a bill of exchange; therefore, as-sumpsit, cannot be maintained on such order, by payee vs drawer, on failure of drawee to pay it. The suit should be brought on the original rjinsideration</p>

<p>That non- „„ resident pl’tff. has not given security for costs, is good plea in abate ment. And replication, tendering a bond for costs or averiing that the security had been given since impetration of the writ, fe bad on demurrer .</p>

<p>’Tis error to decree a general warranty deed, where the covenant is for a quit claim deed.</p> <p>There should bq no decree aghinst infant heirs, until they are represented by a guardian ad litem.</p>

<p>Autiou, for breach of cov-enantor bond, for conveyance of land, is transitory, apd the remedy for, exclusively in per-sonam, and not inrem. Circuit court, of county in •which tho land lies, has no jurisdiction of a bill, for specific performance of bond for conveyance of land, unless process be served on defendant in that county, or unless def’t enter an appearance, without objecting to the jurisdiction. "Whenever cause of action is transitory, service of the subptena on def’t in the county, in which the bill is filed, gives jurisdiction to circuit o'oui't of that county. So, in such cases, a voluntary appearanae and answer by def’t, without filing a plea to the jurisdiction, will be considered a waiver ofthe objection.</p> <p>Chancellor shoald exercise a sound legal discretion, on application for spe • cific enforcement of contracts. Chancellor should not grant specific redress, unless-complainant'7 shew clearly that he is equitably en-. titled to it</p>

<p>áiteai,. Case 157</p> <p>Error to the Meade circuit; Henke Pirtx,e, Judge.</p> <p> Assignor and Assignee. </p>

<p>• 3jm518 6113 Chancery. ' Case 158.</p> <p>Error to the Mercer Circuit; Wm. L. Kelly, Judge.</p> <p>Lapse of time. Assignment. Plat and certificate for land,.</p>

<p>Ejectment, Case 159.</p> <p>Appeal from the Mercer circuit; Wn, L. Keli.y, Judge. instructions. Champarty and maintenance. Possession.</p>

<p>Chanced, Case 160.</p> <p>Error to the Christian Circuit; B Shacklefobd, Judge.</p> <p>Mortgages. Deeds of trust. Vendor. Vendee. Land. Purchase money. Lvn. JYolice.</p>

<p>SoUlE PACIAS, Casel61.</p> <p>Error to the Madison Circuit: Richard French, Judge.</p> <p>Scire facias. Ejectment. Costs. Administrators. Parties.</p>

<p>Chancellor may properly entertain jurisdiction to compel an al-lorvance of credits, for payments made on bond after day of breach, if chancellor belier'e that obligee and obligor, did agree, after breach of the bond,that “money, collected by ob-ligee for obli-gor, or that money, borrowed by ob-ligee from ob-ligor, should be retained by obligee, in satisfaction or payment of obligor’s bond,’ he has jurisdiction to injoin perpetually the judgment on the ground of payments, post diam.</p>

<p>To bill, filed against ex’r, for specific execution of bond, given by testator, for conveyance of land, or for damages to be made out of the land, de-visees of the real estate are necessary parties.</p> <p>To bill,by as-signee of bond, for convey anee of land, for specific execution thereof or for recompense in damage*, jf assignment was made before by law, such bonds were as-ignable, assignor is necessary party.</p> <p>When an assignment of a chose in action transfers to assignee only an equity, assignor must be party to the suit, founded on the thing assigned ; because the legal right is in him.</p> <p>Xapse of time which would bar relief on bond, if relied on in answer, will be considered as waived.ii def’t fail to answer.</p>

<p>Chancery. Case 164</p> <p>Error to the Hardin Circuit; Paul J. Booker, Judge.</p> <p> Judgment. Assignment. Executor. Personalrepre-sentative. </p>

<p>Chancery ■ , Case 160.</p> <p>Error to the Garrard Circuit; John L. Bridges, Judge.</p> <p> Fraud, Purchaser. Seller. Supprcssio veri. Parol evidence. Commonwealth's paper. </p>

<p>The remedy f°r the recov-p2i<l° for°a banknote, which turns out to he a counterfeit, is al cery?° DflS 710 ytirto* diction over suoh °af?>un-bae c„e3“°^' 6!iry.</p>

<p>Chancera". Case 167.</p> <p>Frror to the Madison Circuit; Richard French, Judge.</p> <p> Chancellor. Jurisdiction. Damages. Vendee. Deed.Possession. Non-residence,. Mistake. </p>

<p>Assumpsit. Case 168</p> <p>Error to the Casey circuit; John L. Bridges, Judge.</p> <p> Justices. Jurisdiction. Warranty. </p>

<p>debt. Casel69.</p> <p>Error to the Clarke circuit; James Clarke, Judge.</p> <p>Aider action pendent. JYul tiel record. Assignment,</p>

<p>Motion. Case 170.</p> <p>Error to the Bath Circuit; Silas W. Robbins, Judge».</p> <p>Surely. Motion. Commonwealth?s bank notes.</p>

<p>Bill for con-oi^com pensationin damages, the cause of ac-lion is transítor^ an<1 servedon de~ fendantm • other-3 wise, court has no juris¿ C1010n'</p> <p>Unknown heirs & non-residentdef’ts may be pro-gainst, with a view to ob-circuit in’ which land lies. But this is principle of necessity statute,116 ^</p>

<p>If adm’r with the will annexed has not entered into such bond as his character required, but has executed bond with such conditions as are required to ordinary admin-istra lion bonds he and his securities are not liable to suit on such bond, by a devisee for his legacy.</p>

<p>Motion. Case 173.</p> <p>Error to the Nelson Circuit; Patjl J. Booker, Judge.</p> <p> Constable. Executions. Motions. Failure to return-. Damages. Abatement. </p>

<p>Ciianoery. Case 174.</p> <p>Error to the Jefferson Circuit; Henry Pirti.e, Judge.</p> <p> Slaves. Commanders of steam boats. </p>

<p>inmctmem, Case 175.</p> <p>firror to the Hardin Circuit; Paul J. Booker, Judge.</p> <p> Criminal cases. Writ of error. Fines. </p>

<p>Tbe legisla--ture have exclusive right over the va-pant lands of the commonwealth, and may grant them in such mode or upon such terms as may seem proper. The grantor has the complete right to vacant land so granted, to the exclusion of all subsequent claimants.</p> <p>Caveat, the proper mode by which to arrest the completion of an illegal claim by ob-ten tion of patent.</p>

<p>r t, -Ti r an a</p> <p>Debt is the only proper cortTwhicbls conclusive; but if the rel^afucklv-idence oflia-debto/as*61 sumpsitmay bemaintained</p> <p>Aforeignjndg-m-nt is only prima fade evidence, when a suit is Aro’f upon it; but if brought in in-Cidehtly or collaterally,it is conclusive.</p> <p>Statute oflim-itations may be pleaded to suitor, foreign judgment.</p> <p>General rulo, thatjudgment or deorco a-¡jainst person who had no notice, in fact, of pendency of the suil, has no effect on his rights. But constsuc-iive-notice is suffi -.i-ul in ■ionic cases.</p> <p>Debt wiii lie on acoree against absent defendants, before, the 7 years h ive e lapsed, within which, it may be opened. Whore judgment or decree him) on is prima facie evidence of debt, deft may impeach it and shew that it ought never to have bren rendered. If conclusive where rendered, is conclusive here.</p> <p>In suit oo decree of a sister state, not necessary to aver in declaration, that court in which decree was rendered ‘had. jurisdiction.”</p> <p>Ml debet may be apleaded-to jeM^hioh0^ are not founded on a spe-cia% orcon-elusive record,</p> <p>Nil debct may be :>l'ia'led to debt on a foreign judgm’t.</p> <p>Verdict, in debt on a de-crc- of «ister state, should find the ain’t of the debt due, and also the amount of inte.e-d. due thereon.</p> <p>If a citizen of one state have property in another, that property is subject to the lex loci-, hut d. oree m judgment ren-daren in such state without service cl process, or ap-pearan- e < n-tered, cannot opera t"inper-sonam, hut on the property ly or, within the jurisdiction of the court.</p> <p>To entitle a foreign judgment to the effect of pri-ma facie evidence, the court rendering it, must have jurisdiction over the parlies and subject matter</p> <p>Neither the statues of174S nor those of 1777, nor 17-85,';regulating proceeding against absent defendants authorized a decree exeept in rem.</p> <p>íhe constituv 0° comrress*’ give to the judgment or feot in another, it would ¡j^te in which u was render-1 ed.</p> <p>A decree in ^inst^lmcit-fzen of another, who has neither been prooessnor entered an ap-no tTm)6' r£ niffi fade evi-donee oi right nor oan^it be (ion of'an'aotion, action must be on orfsidefation ; otherwise, if’ decree be\i-°r gainst a oiti-zen of the an absent defendant.</p>

<p>assmikw Case 17C.</p> <p>Error to the Bullitt Circuit; Paul J. Booker Judge.</p> <p> ■Assignor and assignee. Verdict and judgment. EvV dence. JVblice. </p>

<p>Provisions oT congress of V789 & 1791.</p> <p>By the statutes of Ky. 1798 & 1800,2 Digest 679, Marshal of theU.S. vested with the privilege of vising the jails of the several counties.</p> <p>.Statutes of 1796 & 1822,2 Dig. 1046. establishing and extending prison rules,</p> <p>In 1800, congress gave to persons confined by process from the U. S. courts, the same privileges of the prison limits enjoyed by those confined by state process, Laws U. S'Toi- 3’ 301,</p> <p>The duty of jPr®“ u. 8. II v. 66 & 481.</p> <p>By the provi-had a tight to sue out a casa, ny judgment whore such ”0”, a hi o' ¡ni dependent of the restrictive ^eTu^eme^ COUrt.</p> <p>■Power of existin' laws of the states rales of gov-ernmeut for tribunals, by reference and the power of changing and modifying these rules to the state authorities, dis--sedanes.</p> <p>‘Flie court not at liberty to legality1 of ° to'™Hsfn in* Virtue of casa, emarc^ing nXveiwhich U has no cou-</p> <p>The ’exposi-pre^e coin?1* of the U. S. of an act of cfusfv^i&iT" the stats courts. ^</p> <p>’fioty of jailor of igooS' to keep per ! son commit-ces/from t)™" u'^/oourt8 until dischar-sed according to the laws ot the U. s. Tol. ll1, 301 •</p> <p>Marshal of the U. S. is to the U. States ■courts, what the sheriff is to the state courts-; his duty to take prison bounds bond, approve the security and instruct the jailor to allow the prisoner the rules or limits ofthe prison. The •statutes of By. of 1812 & 1822, do not affect the act of congress of 1800, nor substitute the jailor for the marshal, nor the prison bounds of 18-22 for those »'lowed when gressof 1800 passed,</p> <p>The jailor of noTautboriz-cd by the acts of congress to for keeping the prison° limits, from a edbonVprocess issued from the uTs^heis but the turn-keyofthe persmoeoCthe prisoner without judicial ary power.0"'</p> <p>4 bond taken by an officer aot w¡,i0h he isnotnutho-riz®<1 ,t0 1)0 bJ fate qfficeii is void,asacom-,non law bonfl operative^osa statutory boncl-</p>

<p>Chancery, Case 180.</p> <p>Error to the Garrard Circuit; John L. Bridges, Judge.</p> <p> Notes of the bank of the commonwealth. Parol evidence. Fraud. Mistake. </p>

<p>Inuictjíent. Case 181..</p> <p>Error to the Madison Circuit; Richard French, Judge-</p> <p> .Statute. Stabbing. Indictment. Jurisdiction. </p>

<p>Road Case. r Case 182.</p> <p>Error to the Nicholas County Court.</p> <p> Order appointing viewers of a road. Commissioners report. Owners of land. </p>

<p>"Debt. Case 183.</p> <p>Error to the Jessamine Circuit; Wm. L. Kelly, Judge.</p> <p>■ Administrators de bonis non. Administrator. Security. Cause of action. Species of action.</p>

<p>When bond for conveyance of.land, by deed with' general warranty, assigned, not error, to decree conveyance from obligee and release of claim from assignor.</p> <p>The boundaries of land decreed to be convoyed should correspond with those describ» ed in obligation to convey, or decree erroneous.</p> <p>Assignee of bond, for the of la nit; ae-quires no oia.im "P011 less he fail, after using, in reasonable time, the ic-jral myans, to nooordin^to thostipula-lions of the . instrument or in damages for breach of obligation.</p> <p>if obligor m cotmiyanceof lamí, be unable to convoy, no receñirse' trponassigaor, unless behave in reasonable time,prosecuted obligor to insolvency; without some enlargement of the responsibility of the assignor by-special con-’traot.</p> <p>Obligor in bond for land, not assignor, responsible to assignee for costs in defending title.</p> <p>Error, to de-0r interest after decree.</p> <p>Where person evicted from, land, has enjoyed the use of the land, he is untitled only to interest for C years next prior to eviction, as he is bound for inrsmc profits for that period.</p> <p>Cause remanded, with directions to dismiss the bill against assignor, unless he appear to bo responsible other,wise than up- , on his assignment.</p>

<p>Presentment. Case 185.</p> <p>Error to the Henry Circuit; Daniel Mayes, Judge.</p> <p> Presentment. Justices of the county court. Statutes.. Calendar year. </p>

<p>‘Fhere twist be personal ®e,7ice oi scire coguizanceon two returns of " ins same re_ cognizance to j“stify juf,S1' °</p> <p>The scire fa-cias must be directed to the county in which (he pros'ecutionis depending, orín which the party resides, and there must be a.return of two ítnifá/si5 by the same officer tojusli-Cy judgment.</p> <p>A l-eaogni-pe"r toan-P" swer an indictment fot ‘Gamin*1,’invalid. No law authorizing an indictment for ‘gaming.’</p> <p>No judgment can be enter-edanare-forlfeU’d'when ’the charge is not -such as wil1 warrant a criminal prosecution,</p>

<p>A bill of sale,' absolute in iis tarms per se, void as to ere* ditors of the seller; unless possession in the buyer accompany and follow the sale.</p> <p>Tho rule, inflexible, so far as applicable, inapplicable to sales that do not vest absolute title at their date.</p> <p>If the sale be ^«ropon*0”' "trust, but pass on absolute cl lately Tooths purchaser, no possession, by the seller,-in the written wiVprotect the transaction from the afraudinto, or excuse the want of pos-purchaser.^ít as void as’to creditors.</p> <p>to with j^mfbein’ the title, & must sa]le and must be legal, Conj,0SSe8sion, by vendor may fraudulent, but is not so perse,</p> <p>if sain ho "hattnl^aiul tin; seller reserve the right to retain pos ny period,say three months, ni'oit "f^do*'8" livery," is oen-sidered as «íiotruis-io10 vloiiperse0" frauduiont¡as unlessVpeoial reasons exist be shewn to and approved by the court.</p> <p>The cases in which a postponed delivery may be allowed are special, and the reason must appear in the contract of sale, prop t ali-unde- notad-missaMt*.</p> <p>Contract maybe fair and honeslin fact, yet fraudulent in law.</p> <p>Mortgage, a conditional by^mort-gagorcongruous with the law</p> <p>D00triaeot’ constructive ^068 g°iefuuder!le-gal process'.</p> <p>The mortgagor or his shoukfbe^ar tyto'a biFAo foreclose.</p> <p>errar to de-Interest™1118</p>

<p>He who has the right to sell lamí, has ' the right to use the name of any whom title rests, in prosecution of suit to es - tablish title and obtain possession</p>

<p>Error to decree costs vs. a person who does not appear on the record to have been a party to the suit.</p>

<p>The circuit t!n° subsequent, to correct ei-t°”by the^* cw^tn atpri- or term .Mero ba"becor-” rected.</p> <p>Duty ol’circ’t court when damages are decreed on dissolution of injunction to ascertain and liquidate them.</p>

<p>Asso Jifsri. Case 191.</p> <p>Error to the Lincoln Circuit; John L. Bridges, Judge.</p> <p> Dmialic committee. Husband and wife. Pleas and pleading. Bar. Demurrer. JVon compos mentis. </p>

<p>chancery. r* . „ iqo Case</p> <p>Error to the Jefferson Circuit; Henry Pirti,e, Judge.</p> <p> Contract of sale of land. Indemnity. Acknowledgment of service of subpoena in chancery. Rescisión of contract. Chancery practice. Parties. Ferry. Franchise. County court fees. </p>

<p>Plea of bill in chancery, pr 1*01 "t-si^nment/to subject debt fendang to creditor ^ bT/to* tionby as-signee, vs. !igor illnote'</p> <p>Notice of eilujtalde er than iegai ownerofnote, j^ionnter piea,w.</p> <p>if party, act-faíü)11be><-o petted fo°pay money byte-gal process, fail tefiubjeot the debito chancery de-be°protected ’</p>

<p>Error to dismiss suit on the order of oneoomplain-ant, on motion, of defendant, when pendente lite purchaser of interest of said complainant resists the motion.</p> <p>General rule ®free onedefendant vs. another, , gut if decree otherwise rev. su]ar>14 Wl11 ed on'(he a plication of dy“edh°(lgro' irreglliaritjr,</p> <p>Tfairly'at-118 taptedtoin-himself íte of testa-tr, chance! lc will inter«ne falo luid diiribution.</p> <p>If executor p0Ssessj0D and had the benefit of their services, no error to ™onaibie'Vt^-hire.'</p> <p>where executor has fail-etl t0 distri-orsettle^vUh county court, he “ay be ¡^Jrseej Wlth</p> <p>Settlement after suitin-not £°¡ e regar</p>

<p>Swearing the jury to try whereThere are two issues,is not</p> <p>In such case, word “issue” collectively11 and a genera] verdict will to an1the'is-0 sues. '</p> <p>ífanote tainted with ceHed^nd0 the usury l>ail1 or seour-note given for the principa], jes®rvin¡? ínteres" thf ”ott73 infected with the usury of the prior note,</p>

<p>Avowry by defendant in replevin, “that be levied dji. fa.. 'Upon the slave in contest, and (hat the slave was subject to the execution,” is bad upon demurrer, whether slave was subject or not is a deduction of law. Picas must state facts and not deductions of law.</p>

<p>Chancery Case 197.</p> <p>Error to the Barren Circuit; Benjamin Monroe, Judge.</p> <p> Parties. Unknown heirs. Refunding bond. Slaves. Hire. Administrator. </p>

<p>Assumpsit. Case 198.</p> <p>Error to the Bracken Circuit; W. P. Proper, Judge.</p> <p>Precedent conditions. Assumpsit. General courts, ■ Special agreements. Interest.</p>

<p>chancery. Case 199.</p> <p>Error to the Mercer circuit; Win. Ij.Kelly, Judge.</p> <p> Usury. Reservation of interest. Loan. </p>

<p>'íf plaintiff sutler a non-suity he cannot by writ oí error or appeal, reverse judgment of non-suit, on account of any erroneous opinion of the court, in progress of the suit.</p>

<p>Jailor has no “ntllori,y t(? take recognizances in cri~ minal cases, Aot 181®> to civil casep.</p>

<p>J f a, person acted as deputy sheriff, he will be estop-ped to deny that he was dopntysheriff. But if a deputy sberiffhim-self, or any other person, attempt to justify his act, by pleading that he was deputy sheriff, proofthat he acted as deputy sher- ■ iff, is insufficient. It must, in such case, be proved that ho was deputy sheriff.</p>

<p>Chancer i Case 204.</p> <p>Error to the Garrard Circuit; John E. Bridges, Judge.</p> <p> Commonwealth's paper. Judgment. Interest. </p>

<p>Chancers „ Case 203.</p> <p>Appeal from.the Garrard Circuit; J. L. Bridoes, Judge.</p> <p>Rescisión. Want of title.</p>

<p>Ciiancehy. case 205.</p> <p>Error to the Jessamine circuit; W. h. Kelly, Judge.</p> <p> Concealment. Disease. Slaves. ■ Hiring. </p>

<p>When, by in • terference, or order of creditor, property is sold under execution, to satisfy his debt, he is responsi - ble for title to bona fide purchaser, if the money has not been paid over, it may be enjoined.</p> <p>When proper, ty not liable to execution, sale bond maybe enjoined.</p>

<p>Detinue, , Case 207.</p> <p>Error to the Spum-or Circuit; Wm. L-. Kelly, Judge.</p> <p>Fraud. Sale. Possession. Vendor and vendee. //?- struclions. JVezv trial.</p>

<p>Ejectment. Case200.</p> <p>Error to the Allen Circuit; Henry Broadnax, Judge.</p> <p> Junior patentee. Entries. Certificates. </p>