Volume 27 — Kentucky Reports

<p>Discovery. Corporations. Renewal of notes.</p> <p>Chancery,' Case 1.</p> <p>Bill ot'discov-ery lies aar’nst ^corporation*</p> <p>When a debt is continued by renewing notes, each renewal is to boregarded as a new contract.</p> <p>If liability oí defendants be sereral, to decree against some of them, and continue cause as to others, is not error,</p> <p>Person subscribing stock in corporation in names of infants, for purpose of avoiding responsibility in case of insolvency of eorporation and enjoying all benefits arising from the stock, is individually responsible for debts of corporation.</p>

<p>U-sdisim. Cvnirads. '</p> <p> Chancery case 2 </p> <p>Chancelló? will not rescind contract for chattel, unless party seeking resci-sión, has within reasonable time, ofíered to rescind and do justice, or show some satisfactory excuse for not having done so, or show that he will be remediless without a. ref-cisrou</p>

<p> Covenant. Liquidation of damages. Penalty. Pencd bonds. </p> <p>Covenant. Case 3.</p> <p>Parties^contrae/ liquidatethe damages to be entitled for breach ofcov-enant by the ot or‘</p> <p>Simple covenant to pay larger sum for failing to pay debtondayi becomes due, will rarely be enforced for the additional sum, if it exceed legal interest By statute, common law judge is authorized in a&-ter judgment for penalty, “lo be?f' payment of principal, in-aari oosts‘”</p>

<p> Jurisdiction. Chancellor. </p> <p>Chancery. Case 4.</p> <p>If the bill claim anam’t within jurisdiction of chancellor, the amount decreed will not afi'ect his jurisdiction.</p>

<p>.Error to the Franklin Circuit; Henry Bavidge, Judge.</p>

<p>Error to the Estill county court.</p>

<p>Error to the Harrison county court.</p>

<p>ÍSrrorto the Woodford Circuit; William L. Kelly, Judge.</p>

<p>Error to the Trigg Circuit; Ben. Siiaclelfokd, Judge.</p>

<p>Fjror to tbe Livingston Circuit; Bjjnj. Shackleford, Judge,</p>

<p>jSfro'r'to the Christian Circuit; Benj. Shackleford, -Judge.</p>

<p> Sureties. Mortgage. Parties. </p> <p>Chancery Ca-e 12.</p> <p>If obligee take mortgage from ob-ligor to secure amount of the note, and thereby extend twelve months indulgence onnote, he releases securities. Proof that ob-ligee admitted, “he had released surety in consideration of mortgage taken by him to>ScureSOr’ mount Of the note,” is sufficient of itself s°,.gt°“era e</p>

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

<p>Error to the Madison Circuit; Richard French, Judge.</p>

<p>Error to the Casey county court.</p>

<p>Order of county court. Mills. Forcible entry and de-tainer.</p> <p>Case 9. Traverse</p> <p>Ordero(county court ¡riving “leave 'o build a mill dan),” if not obtained in strict conformity to the statute, will not bar writ of forcible entry and detainer, to regain possession of the acre oflaud condemned for the abutment.</p>

<p>Error to the Bullitt Cironit; Paul J. Booker, Judge.</p>

<p> Receipt, Affidavit. Parol proof. </p> <p>Case 18.</p> <p>Afiidavit of loss a receipt will anthorize parol proof of its contents-</p>

<p>Error tc the Bourbon Circuit; George Shannon, - Judge.-</p>

<p>Error to the Montgomery Circuit; Silas W. Robbins, Judge.</p>

<p>Error to the Garrard Circuit; John L. Bridges, Judge.</p>

<p>hiTor to the Madison Circuit; Geohge Shannon, judge.</p>

<p> Certificate of publication. </p> <p>Publication. Case23.</p> <p>The s¿mpje • signature of the name of not sufficient to autbenti-cl}te P-J} order tí„?, .</p>

<p>Error to the Christian Circuit; Ben. Siiackleuford, Judge.</p>

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

<p> Dower. Uses. Trusts. Title 'bondsi Possession. </p> <p>Chancery. Case 26.</p> <p>Widow not lo be endowed ofland 'given, and 'land received ■in exchange.</p> <p>Maybe'endowed where g^ed^ tow-husband cannot be tenant ^ nn*¿°Uwife be seized in deed,</p> <p>Before statute °rtheXifeof" feoffee to user, nor the wife of nutlet todower in the estate so lie^'</p> <p>At common law, wife wasnot entitled to dower in a ■hust estate.</p> <p>Act of 1796, of dower in* respect to trust estates. wífífof °irustee has no right to dower in OT tui que trust iTnih-'scour" toy ■estate.</p> <p>Wifoisenti-lo band bad at his death, right in equity, to conveyance of the fee simple, tho’ his right be derived under an executor)/ contract for the title, and does not result from a use, or trust declared by deed.</p> <p>Where husband has before marriage, given an unconditional-bond for con-voyance of ti-deeinpo.wes-siim, wife is in such cáse husband is conrilt1,el'e^ as or tjt]e ^01-der for use of 8en¿fC js ¡n.' such case,, en-to d°w-</p> <p>]ien ior purchase mo-vendor,Tn such case, win entitle At* wife to <;'c,,7Rr, .</p>

<p> Infants. Prochein ami. Guardian ad litem. Decree </p> <p>Chancery., Case 27.</p> <p>Infants must and”lcfend by-Courts of . shYSd^Uways appoint special guardians infants.</p> <p>Infsnts authorize person to an-¿Yan aáS/ífe»l f0r an infant, record should show. 0,r.<ler him such-</p> <p>Decree a-day, after their arrival cause a* gainst it.</p>

<p> Chancery practice. Decree. Execution. Mortgage Executory cantmcit. </p> <p>Chancery Case 28.</p> <p>Error upon-decree of sale of mortgaged premises, to give comp’t. execution for residue of his demand not satisfied by the sale.</p> <p>Instrument notunderseal, tho’ purporting to be, is not a mortgage, but the chancellor will enforce it between the parties as an executory contract.</p>

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

<p>ii-iw to the Fayette Circuit; (J¡¡sse Rckdsok, Judge.</p>

<p>Deed, Warranty of quantity. Jurisdiction. Mistake» Limitation. Fraud.</p> <p>Chanceet. Case 31.</p> <p>Where deed-contains no warranty of quantity, and land turns out less than described in i deed, chancellor has jurisdiction, on ground of mutual mistake, to decree restitution to vendee of surplus purchase money paid by him.</p> <p>Limitation does not commence running, in chancery, until discovery of the fraud or mistake</p>

<p>lirror to the Christian Circuit; Sinj. .SriACxi/Krc.nD, Judge.</p>

<p>Error to the Shelby Circuit; ITexry Daviduf, Judge.</p>

<p>Error to the Laurel Circuit; Jofu-ii Eye, Judge.</p>

<p>Error to the Meade Circ-it; Henry Pirtle, Judge.</p>

<p> Application of payments. Surety Jiotes. </p> <p>ChaHcíseV Case 36.</p> <p>If debtor do not apply pay-tor'may ap-" ply them.J</p> <p>jp neither debtor nor creditor has catimfof a payment, court of equi-if to note toy W preference to noteto which there is a surety.</p>

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

<p>Error to the Montgomery Circuit; Silas W. Robbins, Judge.</p>

<p> Assumpsit. Limitation. Computation. Instructions-. Pleading. </p> <p>assumpsit. Case 39.</p> <p>If the verdict be such as should have been render’d, the record stating that jury were sworn to inquire of .damages, where there were issues, will'not affect .the verdict. .</p> <p>Non-assump-sit within five years, the proper mode of pleading the statute of liminitions.</p> <p>The cause of action ac-ernes imme-dlately upon money'byone ,a.t the ju-stance of an-“¿estatute1 of limitation attaches, but tationof time" in non-as-in™ycyears,' by adm’r or ex’or. the six “f°erass”Sng the office must be excluded,</p>

<p> Writ of error. Jurisdiction. Attorney at law. Circuit court. </p> <p>Motion. Case 40.</p> <p>The court of ppcals will orfer madeby an inferior 1 court, refus-Aor Vtoact as counsel in a cause depending, or management of it under beneficial interest; unless ifest, and the record show a ticmofThe11" suit to the prejudice of mpiamtiffn</p>

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

<p>Error to the Logan Circuit; Henry Brodnax, Judge.</p>

<p>Error to the Montgomery Circuit; Silas W. Robbins, Judge.</p>

<p>Error to the Henderson Circuit: Alney McLean, Judge:</p>

<p> Submission. Arbitration. Award. Statute. </p> <p>Submission award. Case 45,</p> <p>The statute of 1798, 1 Dig. 90> changes jawasTdates to submission qfcontrover-. tion^íwaS must follow ' the submission, extend™0* matter not specifically submitted-</p> <p>If an arbitra-tor use “undue Xlefhim to*1" make up an award, as conversing privately with witness, it vi tiates the award, whatever his motive.</p> <p>Arbitrators have no right to witness or hear any statement relative to a matter submitted, without giving each party an opportunity to be present.</p>

<p> Agent. Signature. Principal. Assignment. </p> <p>Petition and summons. Case 43.</p> <p>If “A” sign a note, contract, assignment, or obligation, “A” for “B,” A is personally re • sponsible, and it is his act, not the act of B. Suit can-tainedagainst B, nor any right of action ^nve 10</p>

<p>ferrorto the Henderson Circuit; Alney McLean, Judge.</p>

<p> Mistake. Bank paper. Deposition. JVotice. Tender1. Parties. Rescisión. </p> <p>Chancery. Case 48.</p> <p>Notice to take deposi-ions, without date, is insufficient.</p> <p>Though parol canílot be re peived to vary or contradict á written con-may bc^re-ceivedtoshow the contract was, by fraud or mistake, ■ written differently from what the parties intended, and the court will relieve against such written instra-' ment.</p> <p>The offer to pay an uncertain sum, not known to be equal to the debt, not a legal tender, nor is a tendel of bank notes, payable on a day, after the time elapses; sufficient;</p> <p>If bank notes be not paid day th"!measure of‘recovery ÍS *thirtVdlue 011 a ay‘ •</p> <p>V on a bill for rescisión of contract defect'of title in vendor, heirs of ven-dee must be >par res.</p>

<p>Error to the Jessamine Circuit; Wn. L. Kelly, Judge.</p>

<p>Error to the Franklin Circuit; Henry Davidqe, Judge.</p>

<p> Wills. Recording. Remainders. Slaves. Bills of sale. Criterion of damages. Warrantor. Warranty. </p> <p>Covenant. Case 51.</p> <p>Failure to re-“hastate111 which was made and re-yh^fni^does notSprev’ent remanderman t^i^eter-mined, from recovery of' Revised by the will, thU rtate and sold by" the owner of *^t°aPfrtloular *</p> <p>fraa an°[ perjuries doee not aPPJyto sucl1 case‘</p> <p>Amount of*' recovery by remanderman, against ven-dee of owner for life estate-in slave, is not the criterion of damages in suit by such vendee against bis vendoron covenant of warranty of title.</p> <p>In such case, value of slave at time he is demanded by remainder claimants after termination of the life estate, with interest on that value, and costs of suit are proper measure of war-rantor’s responsibility.</p>

<p>Appeal to the Warren Circuit; H. P. Brodnax, Judge.</p>

<p>Appeal from the Pike Circuit, Silas W. Robbins, Judge.</p>

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

<p>Error to the Scott Circuit, Thomas M. Hickey, Judge.</p>

<p> Distress. Renti Rescisión. Contracts. </p> <p>Replevin. Case 56.</p> <p>After a contract for rent has been rescinded by a decre in chanceym-f°r rent in it is a warrant.</p> <p>Without a contract,-reserving rent, there can be no distress. Claim for an 'unliquidated amount of ‘rent, will not authorize u recovery upon a distress'warrant.</p>

<p>Specific performance. Title bond. Infants. Decree« Title. Purchaser. Lien. Rents. Improvements.</p> <p>Chancery. Case 57.</p> <p>lt obligor, in bond for conveyance of land, negligently or wil-fully violate liis contract, and a judgment is .fairly obtained against him, the chancellor will not compel vendee tci complete the contract.</p> <p>Improper to render decree against minors, without giving them time after full 'age to show “cause against 'it.</p> <p>If rescisión of °°a1tjac0t/°¿r inabijityin0 vendor to “¿te title; Hen on the a property sold, for his ad vanc0‘</p> <p>Vendee, who, has recovered at^Jalvfora violation of á 00yerianl to ■ convey land-, has a lion on 'the land for the purchase money.</p> <p>Vendee of land in possession, under a title bond, obtaining judgment on the bond against vendor for failure to convey, is liable for rents and profits, and is entitled to receive pay forlasting and. valuable improvements.</p>

<p>Jprror to the Montgomery Circuit; Su.'.a W. Bobbins, Judge.</p>

<p>Error to the Davis Circuit: Alney McLean, Judge.</p>

<p>Error to the Fleming Circuit; Rotee, Judge.</p>

<p>Error to tho Mason Circuit; William O. Roper, Judge.</p>

<p> Lost replevin bond. P<J,rlies. </p> <p>iClIANEERY. Case 62.</p> <p>Bill to set Up and obtain decree for amount oflost replevin bond against a surety therein; the principal and co-surety are necessdry parties.</p>

<p> Gaming. Gaming tables. Faro banks. </p> <p>Indictment. . Case 63.</p> <p>The object of the act of 1823, “more effectually to suppress gaming.”</p> <p>Setting up, or keeping a gaming table] or bank, at which money pr any thing, shall be bet, js a violation-of the act of 1823.</p> <p>Setting up a gaming t^ble, defined.</p> <p>V A gaining table” may ■be setup without money or property to stake on the game, credit may bp substituted.</p> <p>Abank,banker or keeper of “a gamingta-ble, defined.</p> <p>Setting up a gaming table is no violation of the act of 1823, unloss a game be play-> ed, and something be bet.</p> <p>There are noaccessaries to misd'emean-ors, alt who principals.316</p> <p>"cards for a 'bank or gam■ ing table, although he hate no interest in the profits which may accrue A person, who deals the etoror setter" up of the 6r" bank, violates the act of’23.</p> <p>A person who has no interest in a gaming table, nor agency in the game played', but affords a momentary or occasional assistance tó the dealer, does not violate the statute.</p>

<p>Error to the Rockcastle Circuit; Joseph Eve, Judge.</p>

<p>Error to the Clay Circuit; Josehi Eve, Judge.</p>

<p>Error to the Christian Circuit; Benj. Shackleford, Judge.</p>

<p>Error to the Shelby Circuit; Henry Davidoe, Judge.</p>

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

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

<p>Error to the Franklin Circuit; Henry Davaoe, Judge.</p>

<p>Érr&r to the Garrard Circuit; John L. Bridges, Judge.</p>

<p> •Execution. Failure to return. Criterion of damages. Pleas. Sheriff. </p> <p>r>I!im Case 72s</p> <p>In an action against sheriff onhis oflicial ure to return within a month, a ca. sa. which was made rehm»-thecriterión of damages is te real injury plaintiff^ ami «oi the ’ amount of the Merest?1 ^</p> <p>Action against sheriff ^etum^x^ution within a month, plea, “that one of defendants in ex?j“^°s“^f £0 plaintiff before the mm!^of this suit,” isinsuf fraction13511</p>

<p> Criterion of damages. Declaration. </p> <p>Case. £ase yy</p> <p>In an aotion for negligent-jjamtiff ^tobacco to bo s?ne^ inhej?eb thevaTue^was diminished: tlJ.emeasure . ° rucovery 13 the. difference between the value of the damaged and sound tobacco</p>

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

<p>Error to the Knox Circuit; Josefh Eve, Judge.</p>

<p>'Covenant* Case 76.</p> <p> Plea. Bar. Contract. Construction. </p> <p>Plea that docs not meet tionsof píñin-tiff’s declara-tionbad.</p> <p>Contraots to he construed ^the^nten-tionofthe parties,</p> <p>Plea, that have beenoancell’d no bar to ¡^each1 f°r</p>

<p> Fraud. Consideration. Slaves. Affidavit. Continuance. </p> <p>Chancery. Case .78.,</p> <p>Person runs off and conceals the slaves of another, and af-terwards refuses to inform the owner where his slaves are,until owner executes his note to him for a certain sum of money; such notéis invalid, both from the fraud and the want of a legal consideration.</p> <p>Discovery of nyaflferthe" calling of a cause or so as^nottoCaf-°’ ford time to procure it on cien^groun?' for a continu-anee, though foundeíon bS the affidavit of the attor-one hiteres-°r ted, not party to the suit,</p>

<p>Erro)' to the Bourbon Circuit; Richard French, Judge.</p>

<p>Error to the Logan Circuit; IIeney Bkodnax, Judge.</p>

<p>Error to the Fayette Cireuii; Tiioma's M. Hickey, Judge.</p>

<p>Appeal from the Jessamine Circuit; Win. L. Kelly, Judge;</p>

<p>Parol leases. Statute of frauds. Tenant. Possession. Improvements. Implied assumpsit, Distress.</p> <p>Asoumjsit. Case 82.</p> <p>Statute of fraud does Dot avoid pa-rol contracts for the sale of land, or for a lease for a longer time than one year; it only withholds the right of action to enforce such contract. Parol lease, for not more than 5 years, landlord may collect his rent by distress, and tenant can retain possession during the t' i n, against any known process of the ] iw. Iften-ant yield possession it is voluntary, and he has no claim upon landlord for improvements.</p>

<p> ExccuLr. Rents. Jurisdiction. Administrator. Heirs. Pmiles. Land. Sale. </p> <p>chancem-] Caso 85»</p> <p>Perthn ap-eutorcluimit be compelled to act, nor re be charged as such. IP he receive rents' ed to^be sold' he is responsl-ble, and rem-.ed vis at law.</p> <p>To a bill, praying for land devised to be sold, all those in(er-’ested in the 'distribution, and the heirs .of testator, must be parities.</p>

<p>Error to the Warren Circuit; K. Bü.odkaz, Judge.</p>

<p>Error to the Scott Circuit, Thomas M. Hickey, Judge,</p>

<p>Error to the Garrard Circuit; John L Bridges, Judge.</p>

<p> Lapse of time. </p> <p>Chakcert. Ca.e 87.</p> <p>Lapse of ?0 years, after ' execution of a deed ‘acknowledging the receipt in full of the purchase money,’ will bar recovery ; unless the delay be satisfactorily accounted for</p> <p>Non residence which was known at the time of tl e contract, not sufficient excuse.</p>

<p> Subpcsna. Acknowledgment. Parties. Slaves. Jurisdiction. Administration. </p> <p>chancbky. Case 88.</p> <p>Acknowledgment of ' a subpoena insufficient, un-pr0of that the acknowledg-Pent*sSenu"</p> <p>Bill f°r s?]« ^ ofsTaves descended, f&ould be filed ^here a°dmin-istration was granted; the; andaTthe40*" heirs are ne-tfesf^ par"</p>

<p>Error to the Bourhon circuit; Eiciiaro French, Judge.</p>

<p> Interest. Judgment for damages. Jury. Court. </p> <p> Debt. Case 90 </p> <p>In suit on judgment, for jm™may al'low interest on damages,</p> <p>Whenever a jury might have allowed ^sub-stitutedby consent for a jury</p>

<p>Error to the Franklin Circuit; Daniel Mayes, Judge.</p>

<p>iplrror to the Jessamine Circuit; Wji. L. Kelly, Judge.</p>

<p> Collector. County levy. Sheriff. County court. Bonds. </p> <p>Motion. Case 93.</p> <p>Bond for collection of th® c0™*y the justice's, composing ■ , ?°unty court, Ta 1</p> <p>Obligor in bond for collection of county levy, is estopped to deny that he ivas collector; but not es-topped to deny that he was sheriff.</p> <p>Power of county court to appoint collector of the county-levy.'</p> <p>Act' of 1797,' relative to collectors of ceuntylevy, not totally repealed by act of 1799.</p> <p>Before i-nr^siteriff was ex officio, the collector °evjr>e 00un y</p> <p>Act of 1799, th^laV, prior to the ’ act of 1797.</p> <p>JVbiv, as before act of 1797, sheriff is ex officio collector of the county levy^ provided he will execute the bond required.</p> <p>Unjess ¿t fl„_ pear that the sheriff objected mtment of another collector, it will ty court transcended its Power-</p>

<p> Consideration. Misrcprcsention. Fraud. Scienter,. </p> <p>Case 95.</p> <p>If vendor falsely represent that for which a note is given to be of value, when it is rf no value, consideration may have failed, and a scienter not indispensable.</p>

<p>Error to the Owen Circuit; Daniel Mates, Judge.</p>

<p> Administrator. Assets. Retainer. Sales by administrator. Plene administravil. </p> <p>Covenant,,’ Case 97.</p> <p>If administrator pay off debts of intestate at a discount, he is only entitled to a credit for the sum paid.</p> <p>Adm’r. may retain any property .and ■pay the ap-- ■ praised value.</p> <p>Error, on issue of plene ad-ministravit vel non found for defendant, to render judgment in bar of the action; judgment should be in favor of plaintiff, for assets '■quando acdderint.'’</p>

<p>Error to Iho Harrison Circuit; II. O. Crows, Judge.</p>

<p>Error to the Christian Circuit; Ben. Siiacelelford, Judge.'</p>

<p>Error to the Jessamine Circuit; War. L. Kelly, Judge.</p>

<p>Error to the Mercer Circuit; Wm. L. Kelly, Judge.</p>

<p> Boundary. Course. Distance. </p> <p>Ejectment. Case 109.</p> <p>If it be evident from the ealls of a deed that distance is the material and control-ing object; course must yield to distance.</p>

<p>Appeal from the Clarke Circuit; George Shannon, Judge.</p>

<p>Equitable inietrsts. Creditors and purchasers. Noticei Unrecorded deeds. Bond for title* Commonwealths paper. Jurisdiction.</p> <p>'Chancery. Case 104.</p> <p>Sa]¿ of ian(J without valuation cannot ® . table owner, unless he as-to tlieh</p> <p>Deed may ba valid inler T'ffe*, a.nd *0 creditors a¿g_puroha'</p> <p>Notice of outstanding equity, to the agent of execution credit- or, is notice to his principal; notice to a creditor, is as effectual in courts of equity, as to a purchaser.</p> <p>When notice, the only question for a court of equity is, who has the prior and better equity, purchaser will have neither legal nor equi-tabte right, creditor’s title will be purely legal.</p> <p>Bonds for title to land not within, the . statutes regulating conveyances ; the holder of such prior equity cannot be ever reached by a creditor of vendor, nor by subsequent purchaser with notice.</p> <p>Vendor holding legal title, isresponsible to his vendee, for any abuse of his trust.</p> <p>No relief in chancery against a judgment for specie, where from the face of the contract the demand was [dr commonwealth’s paper, the de-fence was purely leghl.</p> <p>I\f ot'error id decree ten per cent iñ gross, upon dissolution of injunction.</p> <p>When the error presented in a record upon motion fot supesedeaa is amendable, the court will overrule the motion and suggest the amendment; but if called upon to do-cide the cause, upon hearing, thé court will reverse.</p>

<p>Sheriff. Deputy. Official bond. Warranty of title. Agent. Sale. Purchaser.</p> <p>Case 10S.</p> <p>Sheriffliable "civilter"for all official actsof hisdep-uty, for which he would be when responsible, ac-tl0° “a? ba on against him and his sureties,</p> <p>When an individual personal prop. erty as his own, the Jaw implies a.war-otherwisefif ’ agent, sell’.:</p> <p>Fiake those of B. ^^aj0^sa¿asf; Ogives the officer no authority to ♦''bo +L</p> <p>The sovereign power of the state cannot take from the humblest citizen a particle ofhis property for public use witho’t allow-compensation</p> <p>Owner of property sold bysheriff without authority, may sheriff itsval ue m an ac tion of tres-» pass.</p> <p>Sheriff no further bound by official bond, than he wouid be without it.</p> <p>Sheriff is responsible to tne purchaser for the title of £h:ym'under execution,</p>

<p> Assignor and assignee. Mulla bona. Assignment. Con-side ration. Motice. </p> <p>assommit. Case 106</p> <p>■inie.tmediaie assignee cannot recover of his assignor, without showing “that he is entitled, to the judgment against 'obligor.”</p> <p>Principle upon which liability of an assignor rests, is a 'failure of •consideration</p> <p>Return of nul-la bona s conclusive evidence of obli-lor’s insolvency.</p> <p>Assignee, after prose-to insolvency* may take his recourse on mey looito the ability of obligor,</p> <p>As long as ás-nonfract^of11 assignment by holding to hi* gf^he cannot claim of his assignor the m3nt.</p> <p>Assignor raJ^nee the° consideration of tbeassign-an right to the judgment against °bli-gorsandwin be protected by common law courts.</p> <p>When holder, or no techas* prosecuted obligor to in-theV rfuT’o'f13 assignor, in-Btantly to pay ment ^ signee, of the consideration of the assign-meni.</p> <p>Assignor of Ivhen obligor has been proa-?outed to 1"solvenc3r-accept the consideration money, the assignment ia dis-ajfirmed; otherwise, if refuse\ eultmg\o ^ abide by his judgment, ha‘ against1* ^ assiguor.</p> <p>After assignment, and be-obligor moves out of the ha^hlf re-***8 course, with-owi first prose-to Vnsolvenc°r</p> <p>Intermediate assignee must, before he can recover from his assignor, show, that subsequent assignees have been paid, or that he is entitled to transfer the note or judgment to the assignor from whom he seeks to recover.</p>

<p>Error to the Clark Circuit; Wii. P, Roper, Judge.</p>

<p>Bills of exchange.. Days of grace. Sunday. Protest. Demand. Verdict.</p> <p>Case-107,</p> <p>If last day of grace be Sun-aay, protest of the bill on Saturday is proper.</p> <p>If, in suit on protested bill °uryXfind ver-diet for more than the principal,interest, dame ges and costs, court should ex offi-asido!U</p> <p>Suspension of an opinion of this court must be entered of record. Otherwise, this court, after the expiration of the term at which it was pronounced and a copy of the mandate given out by the clerk, has no power to correct or modify the opinion.</p>

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

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

<p> Surety. Release. </p> <p>.Chancery. .Case 11L</p> <p>If obligee by valid agreement extend the credit on a note, or make new contract, •without consent of surety, and in the interim, prin-pipal becomes insolvent, surety will he ■released, altho’ bound jointly and 'Severally on the face of the note, if he is in fact only surety.</p>

<p>Error to the Bourbon circuit; Richard French, Judge.</p>

<p>Error to the Franklin Circuit; Daniel Mayes, Judge.</p>

<p>Error to the Mason Circuit; Wai. F. Roper, Judges</p>

<p>Error to the Bourbon Circuit; Richard French, Judge.</p>

<p>Vendor and, Vendee. • Lien. Waiver. Purchase money*</p> <p>Chancery.. Case 117,</p> <p>Vendor docs not, by conveyance and taking the individual notes of vendee for the purchase money, waive his lien on the land. If vendor holding note of vendee for the purchase money, in order that creditor of vendee may obtain an indisputable mortgage on the land, surrender note for the purchase money, and take from creditor an assignment of note for same amount on vendee, under assurance from creditor, that assigned pote will be punctually paib; he waives his lien on the land for payment of the purchase monay.</p>

<p>Appeal fromthe Davis Circuit: Alney McLean, Judge.</p>

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

<p> Right of action. Relator. Guar'Hans and ward. Pro-chi .n ami. Marriage. </p> <p>Debt‘ Case 119.</p> <p>Person, wm> J.'Nht°to/ef]“é subjectmatter of the suit asre/ator. Suit against ^n^nd'su-retyon hi? official bond. must be in name of infant.asrelator a^f^an^not name of present guar-”nj;an cannot'proso-cute suit in ^atcTTo^ benefit of his he hasbnoaUM beneficial inter?st ™ Sllif’ interest the ward, Marriage of SjKin,. guardian over person ami estate.</p>

<p> Final decree. Land. Conveyance. Commissioners. Subsequent term. </p> <p>Chancery. Case 120.</p> <p>Aij-ter ex¡n-ra. linn of term, at which ed of as to all parties and conveyance of specified quan-tityoflaml, foundry1 COUrt has no po^ntcomniis-sionersto re-™rvey the View’to cur^ tail quantity in the hounda-ry decree •</p>

<p>Error to the Anderson Circuit; Daniel Mayes, Judgs.</p>

<p>Error to the Owen Circuit; Daniel Mayes, Judge.</p>

<p> Possession. Tille. Tenants. Claimants under execu-tory contracts. Estoppel. Vendor and vendee. Purchaser lender execution. </p> <p>Ejectment. Case 124.</p> <p>Possession of land is evidence of title against an jntruder 55’jthout title.</p> <p>One. who en?, tjevs as tenant, or claims un-' der an eccecur tmy contract of purchase, is qstopped to deny the title-of him under -^hom he enters.</p> <p>Vendee of land under an-, tract ^ma00 re-^on’same r° estoppels, asainstten- _ tenants of vendor, haverelied on. Purchaser un-execution sam'e estoppels against tenants aad fondant in the execution, which ¿le fen-m¡ghthave relied on. Possession of the possession oftheland-lor(lor vendor,</p> <p>Land in possession of contract rf purchase, is sukieot t0 sal° cution against vendor, tho> yendoe in some cases,.</p>

<p>Error to tlie Pulaski Circuit; John L. Bridges, Judge.</p>

<p>Error to the Spencer Circuit; Wm. L. Kelly, Judge.</p>

<p>Error to the Clarke circuit; Riciiaed French, Judge.</p>

<p>Registration of deeds. Deduction of tiile. Vendor and vendee. Specific performance. Judgment. Injunction. Dissolution. Damages. Decree. Amend•• meat.</p> <p>Chancery. Case 128.</p> <p>Want of theregular regis-trationofthe which Vendor deduces title, other Voofof thefr execu- ° tion, is insu-Son tr»6 ob^eo" polling vendee to receive a Tonyeyancc.</p> <p>Duty of vendor, when he applies to chancellor to enforce specific execution of contract for conveyance of land, to show a complete title to the land. sós 'courts'" should regard ma¿e such allowances prevent their being dreum-. wüyadversarg,</p> <p>In no case, where vendee of land has fairly obtained a. judgment at law, and chancellor has not before the judgment had possession of the case, ought a specific performance to be enforced.</p> <p>Error, in failure to fix the amount of damages in a decree dissolving an injunction, may be corrected by application to the inferior court.</p> <p>b^counseKor tiL'appellee's.'</p> <p>Response to suggestions.</p> <p>On dis'olution of injunction, the ten per cent damages should be given on the amount on-joinid at time of granting the injunction and not on amount enjoined at time of dissolving it</p> <p>Suggestions by 0°un'eJ for appeliaftt'-</p> <p>Response to suggestions.</p> <p>If vendee of land retain possession after he ha1 rescinded the contract by obtaining judgment at law for failure to convey, he is accountable for rents and waste.</p> <p>Judgement damagrTre-’1 covered by ■vendeeoDand ^onve^T'ODs interest from* its date, aft er obtained h°n against it has been dissolved,</p>

<p>Appeal from the Madison Circuit; Richard French, Judge.</p>

<p> Distribution. Distributees. Refunding bond. Executor. Parlies. </p> <p>Chancery. Case 130.</p> <p>In a rlecree for distribution. error, to permit execution to issue in favour of dis-tributees until they have executed bonds with surety to refund their rateable proportions of any debts, which may come against the estate of the testator. Such bond must be filed by leave of the court, and app overt by the court previous to the issuing of execution.</p> <p>Decreefordis-¡■r‘!j"r,'tgXPCU tor'should be" against him in bis tndimdml oal)acIty’</p> <p>All persons 'Js^crj^^r* affected by ° the decree, sbo,lbl be , tó'the suitf1</p>

<p>Error to the Green Circuit; Benj. Monkoe, Judge.</p>

<p>Error to the Franklin Circuit; Daniel Mayes, Judge.</p>

<p>Error to the Fayette Cireuit; Thomas M. Hickey, Judge, Covenants Market season.</p> <p>Cl VENANT Case 133.</p> <p>Covenant to hem”!Imports thatcovenan-will pay-^¿tiia^may take place on that sum in 'luring- the market sea-liJe’chite^o^fhe covenant; and if no time ■ the aggregate §"e°a™hebe close of that market season</p> <p>If a fixed • price and the rise are to be "^¡ther the price nor the rise will be due before demand.</p>

<p>Error to the Jefferson Circuit; Henry PirtLe, Judge.</p>

<p>Surety. Interest. Commonwealth's paper, Trustee, Compensation. Mistake. Cross-bill. Process, Mortgages and-deeds of trust. Sales of trust estates-. Trusts.</p> <p>‘chancery Case 135.</p> <p>Surety, who pays in commonwealth's papferthe debt of his principa), is entitled trt recover the specie value, ot the commonwealth’s pap’r at date of the payment and interest npori that value. In assumpsit by surety against principal for money advanced in discharge of debt of principal jury may give interest by way of additional damages. Chancellor' should give the surety interest upon money advanced by him in discharge of debt of his principal.</p> <p>If a trust fund be created in part for the benefit of the trustee, and he accepts the trust without any stipulation for compensation for his services, he is entitled to none.</p> <p>Deed made by debtor conveying several of fits creihlors,^e-Jf the debts due f“oh creditor, one^credbor0 bo described in the deed ns an was, the mistake cannot th^preju-^i0c of the other creditors,</p> <p>Process should be issued on answer in nature of a cross- bill; otherwise, defendant is not bound to notice it.</p> <p>Court, in cases of mortgages and deeds of trust to secure the payment of debts, should give n day in term-time for the payment of the money, and in default thereof,’ order a sale of so much of the property as may be sufficient to pay the debt and costs Court should not compel the holder of a lien on real estate to surrender that lien and take personal securty for the payment of his debt</p> <p>Act of 1819to ’ S1]eg 0f trust estates, only the trustee, and requires k'™et°hYYow-ers veste,j in the trustee; Yestrfet *the er 0ft¡ie chancellor, or ^¿towed the trustee by the deed; and in J^XTthefaid act, chancellor must be reasons executing üie powers and objects of the deel 0 rus ‘</p> <p>Whatever surnsofmoney have been n«-cessarsly expended by trustee in protection of the trust estate should be allowed him on settlement of his accounts.</p> <p>T)eed of trust, by a debtor,. providing for payment of a debt due the trustee and for payment-0.f debts due other credit1 rs; fact, that trustee holds the legal hl/e to the trust estate, gires his debt no precedence in the order of payment.</p>

<p>Dismissal of bill. Written contracts. Parol evidence. Allegation. Fraud. Mistake.</p> <p>chancery.Case 136.</p> <p>TSirdf'to'dis-miss absolutely & bill for conveyance of -land, when it appears that complainant is entitled to a decree •either for the land or its price.</p> <p>A written'66b° tract must be expounded by itself;'it cannot be diminished or add’d to by parol evidence, except, under cover of an ’alienation Of 'fraud or mistake.</p>

<p>Error to the Garrard Circuit; John L. Bridges, Judge.</p>

<p> Special warranty deeds. Covenant. Title. Commonwealth's paper. Rescisión. Vendor and vendee. Possession. Restitution. </p> <p>Chancery, Case 138.</p> <p>Covenant to ' convey land by deed of special warranty^ implies that covenantor.has a legal title regularly derived from the commonwealth; and if covenantor be unable to con,\ ey such a title, biscov-enant is hroksii,</p> <p>Such covenant should be good against the state.</p> <p>Where purchase money for land was paid in commonwealth’s paper, error, on rescisión of the contract of sale, to decree restitution of the common-w’l h’s paper, in kind'. In mch case, the law implies a promise to refund the value only of the commonwealth’s paper. if vendee obtained possession of the . land from vendor, he cannot, on a rescisión of the contract, re ist vendor’s oFthe possession,</p> <p>petition for a re-hearing,</p> <p>Response to the petition.</p> <p>One who enters on land without claiming any title or manifesting a hostile intention will be ‘deemed’ to have entered under, and in subordination to the title of the true owner.</p> <p>Vendee of land, who entered under an executory-contract of purchase, will not be permitted to deny title of vendor or to withhold restitution, although the contract has been rescinded by the chancellor.</p> <p>Where ven-dee enters under an exeou-tory contract chancellor ’ willnoirescind th'thout de0< creeing reati-iution of the-land to vendor</p>

<p> Damages. Injunctions. Dissolution. Authority. </p> <p>Chancery. Case 139.</p> <p>Damages on dissolution of an injunction can he decreed only in cases, in which the injunction was granted by competent authority.</p>

<p>Error to the Hardin Circuit; Wm. P. Uoper, Judge.</p>

<p>Appeal from the Shelby Circuit; Daniel Mayes, Judge.</p>

<p> Review, bills of. Decree. Fraud. Filing ,of bills. Leave of the court. </p> <p>Chancery. Case 142.</p> <p>Object of a bill of review is to procure an examination and reversal of a decree made upon a former bill and signed by the person holding the great seal and enrolled. Bills of rpview are on matters dehors the record, and on errors of laxo apparent on the face the decree.. Leave of the court must be obtained to file the former. The latter is filed of course.</p> <p>Decree abtained by faudmay be impeached by bn^^Leave 0f the court act necessary-of SU°</p> <p>Error in the court, to refuse leave to file such a bill of review as might have been filed "f course; provided, the allegations be such as to warrant relief, if true.</p> <p>Proper, as a general rule, to apply to the court for leave, to file any bill to reverse, alter, or explain a decree. Cases, in which such bills may be filed without leave of the court, ought to he considered exceptions to the general rule.</p>

<p>Error to the Fayette Circuit; J esse Bledsoe, Judge.</p>

<p>Error to the Montgomery Circuit; Silas W. Robbins, Judge.</p>

<p> Lost bonds. Assignment. Proof. Infants. Decree. </p> <p>Chancery Case 143.</p> <p>Decree-against infants must give them time after attaining years oficgal discretion, to contest the decree;</p> <p>Petition for are-hearing-.</p> <p>Response to the petition.</p>

<p> Mortgagees. Deeds of trust. Practice </p> <p>Chancery. Case 14G.</p> <p>The recording-of a deed of theacknowl-edgement of a mortgage, if jivered Sfirste" and acknowl-edgedintime, does not con-lien.UP 1</p> <p>If sureties pay, debts of prin-cipnl in depreciated paper or pay less than nominal.amount, error to decree them re-> muñeration to' greater extent than value actually paid, ai-d it is competent Yor the court to direct the application of fund in hands of trustee to such paymeut.</p> <p>Error to des-cree in favor of one not praying a decree.</p> <p>Suggestions by counsel for Grayson.</p>

<p>Error to the Shelby Circuit; Daniel Mayes, Judge.</p>

<p> ’DlerEs authority to issue execution. Equity: Damages. Injunction. Dissolution. </p> <p>**chancé¿v. Cáse 148.</p> <p>Though cierk dlftc-tlon to issue * execution, yét ^tir irithe-aét is valid;'</p> <p>Error to decree damages ' upon dissolution of injunction, without ascertaining the amount.</p>

<p>Error to the Simpson Circuit; H. Brodnax, Judge.</p>

<p> Joint principals. ■ Joint sureties. Motions. Contribution.- Jurisdiction. Pleas in abaterfienl. Pleadings, ore tenus. Imparlance. Deputy clerks. </p> <p>Motion. Case 150.</p> <p>Surety may maintain a “o-suret^ for* contribution, either in the renderecUha judgment on the obligation coUart'‘ihavI i -gjurigdic-tun tfihe amount,” and over thepurties</p> <p>P]ea to the jurisdiction Sf_ appearance and general lmParJaime.</p> <p>Statute which^¿phrequires pieasinabatd* ment or to S’•\unvp*£¡1 a 0n or before the day to ^ jeoc]j. ete([ for trial at first term, t°motions o/ other cases in which the_ pleading is</p>

<p> Competericy-i Testimony. </p> <p>Case 151.</p> <p>•■See Case.</p>

<p>Error to the Campbell county court.</p>

<p>Error to the Barren Circuit; Benj. Monroe, Judge.</p>

<p>Error to tbo Montgomery Circuit; Sidas W. Robbins, Judge.</p>

<p>Error to the Shelby Circuit; Henry Davidoe, Judge.</p>

<p>Error to the Scott Circuit, Jesse Bledsoe, Judge.</p>

<p>Foreclosure. Decree, Sale. Mortgages. Legal title. Equitable title. Recording of Mortgages.</p> <p>Chancery. Case 157.</p> <p>In, foreclosing^ errorSto leave it with the commissioner ¿^'’to^ecide whether pay-merit or ten- and to™ uthor-;ze him, in faufuto sell the p’roptrty.,.</p> <p>Statute making recorded mortgages constructive notice applies only to those mortgages which pass, the legal tille to the mortgagee Law does not require a mortgage of equitable title to be record’d</p> <p>The recording of a mortgage of an equitable title to land, will not operate as constructive notice to a rabsequent ourchassrof the land from •fhe holder of the legal title.</p>

<p> Heirs. Abatement. Ho inhabitant. Return. Joinder* Parties. Discontinuance. Assets. Infants. Hotice. </p> <p>Covenant. Case 158.</p> <p>In suit vs the loirs alone, on an obligation, in winch they are expressly bound, return of“no inhabitant of the county,” will authorize an abatement as to part of the heirs, and a judgment against the others. Joining administrators does not alter the rule.</p> <p>To suit vs heirs, all of the heirs must-, be made defendants..</p> <p>Heir is not liable beyond the value of the estate descended.</p> <p>Heifeannot', by failure to plead or make-defence, or by any plea, which he may plead, be charged beyond the estate descended.</p> <p>Where alien-ations have been made by the heir, the value of the estate descended shoud be asses ed, and judgment given against him not exceeding that value.</p> <p>Infant cannot* without aid of a guardian ad litem. defend a suit institu* ted against him.</p> <p>Service of no-tic'e upon an infant,'to defend ari’a'ction •of ejectment, is a nullity. Notice to the adult heirs to defend an action of eject-, ment, will not 'bind the in.fant heirs.</p>

<p>Error to the Adair Circuit; Benj. Monroe, Judge.</p>

<p>Appeals from the Shelby Circuit ¡ Henry EUvipse, Judge.-</p>

<p>Delivery, Deed. Parol evidence.</p> <p>Detinue. Case 161.</p> <p>Delivery is essential to the effective-neaaofa deed.</p> <p>Proof, that,, deed was signed and attested, and left on the table without delivery to any person, and in the absence of the donee, is not sufficient evidence of a delivery. Delivery of a deed may be inferred from acts without words, or from words without acts, or from hath combined.</p> <p>Parol evidence of con-, j^nadmissi-ble, unless there is, of inability to produce the dee '■</p>

<p>Error to the Franklin Circuit; Daniel Mayes, Judge.</p>

<p> SvCrety. Motion. Sheriffs. Execution. Commission. </p> <p>Motion, Qasc jg3></p> <p>Motion by !ibajnst principal may be made in ^ere th«f judgment was rendered, and bTservecTon the principal another</p> <p>Where sheriff has not levied or collected huthas'o¡ñ*' endorsed on it when it came to hand, -t satisfied according to ^“¿ctioñs ^ -g nc0L¿ “untied to 5 per cent commission, of the exec™ tion.</p>

<p> Deed. Commissioner. Decree. </p> <p>' Covenant- . -Case 164.</p> <p>If a defendant before de-commissioner 'made uuder the decree bin decedent</p>

<p> List of taxable property. Simmons. Delinquents. Ommissioner of'tax. </p> <p>Motion. Casé 165;</p> <p>Act of ] 819, imposing a fine and triple tax for failure to furnish commissioner with a list of taxable property, is penal. Error to issue joint summons against several delinquents for failure to furnish commissioner with a list of their taxable proper)^.</p>

<p>Assault and battery. Wounding.• Possession. Justification. Jury. Issue.</p> <p>Trespass. Case 166.</p> <p>Though an assault and battery amy be justified in, defence of posseion, yet a wounding cannot; but if' the intruder commiUnf an assault upon possessor-or his famile w^hen thelat-’ ter under-takes to re-, dé-fending the assault a ^avbiTusti-fled'.</p> <p>■When jury is sworn to try teh issue joinb”they canppt.de-cideupon anything wtpchis noi embraced by the issue,</p>

<p>Error to the Gallatin Circuit; Henry Davigde5 Judge.</p>

<p>Error to the Franklin Circuit; Henry Davids’e, Judge. -</p>

<p> Resulting trusts. Declarations of trusts. Parol evidence. </p> <p>Chancery. Case 169.</p> <p>’-Where con- ■ VeyanCe has '■been iaken in - the name of ,. ■ one person, • and the pur- • -chase money ■ by another, a trust results iy implication • of law, in fa- ; vourof person, ■ who paid the jmrcbare money.</p> <p>Parolwi-. donee is ¡ideS'</p>

<p> JVew trial. Chancellor. </p> <p>Ciiancert. „ Case 170.</p> <p>Application to ..the. chancellor for .a new trial on accounl.of discovery cf facts since the trial, ought to show clearly the materiality of the factsdiscovgrr ed in relation to the trial at law,, and that they ought, if proved;, to have produced a different yerclic.t.,</p>

<p>Trust estate. Execution. Trustee. Personal property. Delivery. Sales. Officers. Levy. Bidders. Possession.</p> <p>Detinue. Case 171</p> <p>Trust property is not subject |°0®niseSEgdUón a judgment —^nst the trastee on a note executed agaEe¡ndi-tC8 vidual,</p> <p>In England, the goods of a testator cannot be seized in execution of a. judgment -against the 'executor in his ■ own right.</p> <p>Personal ' property pass- ~ ed by delivery only. Tcrendera Sale'of personal propferty valid there must be a delivery; tho’ not necessary that officer should formally■ hand it over to the purchaser; but it must be actually levied upon ■’by the officer; must be -shown to the Udders at the time of sale, and be within ■the power of ■the officer to ■be delivered.</p>

<p>Dower. Title. Seizin. Estoppel. Alienee of husband. Deed. Vendors. Joint tenants. Improvements.</p> <p>Chancery. Case 172.</p> <p>If'ülienee of a husband acquired his right to, -and possession of the land from the deed of the husband, he cannot, when sued by the widow for dower, deny the seizin of the husband.</p> <p>Deed execut’d by two or more vendors, the. legal presumption, in the absence of opposing facts is, that the vendors were joint-tenants, or tenants in common. If the value of land, aliened by the husband, has been enhanced by improvements made by the alienee, the widow is entitled to dower only according to the value of the land without such improvements.</p>

<p> Payment. Sheriff. Execution. </p> <p>Chancert. Case 173.</p> <p>Unless the sheriff has an execution in his hands in. full force, a payment njade to him hy defendant in the execution, will not exonerate the defendant from his liability to the plaintiff.</p>

<p>Error to the Ohio Circuit; Alney McLban, Judge.</p>

<p>Error to the Jessamine Circuit; ffm, L. Kelly, Judge.</p>

<p>Appeal from the Montgomery Circuit; Silas W. Robbins, Judgtv</p>

<p>Error to the Nicholas Circuit; II. 0. Brown, Judge.</p>

<p> Attachment. Execution. Levy. </p> <p>chanoery.. Case 178.</p> <p>If on bill filed property be ntfnched and in the custody of-the officer, the subsequent levy of ¡executions upon it, will not uffeet any lipn which has previously accrued in virtue of the attachment.</p>

<p>Parol gifts of land. Eviction. Improvements. Ame' liorations, Rent.</p> <p>chancery. Case 179.</p> <p>•in-lav/by'a"” w (Uo'liis * diiúgliíer end son ‘in-law in-tetUe on^and improve the land, and af-terwards evicts them; the son-in-law is entitled^to value of the amelioratii ns by him added to the land; but not the Improfemenis. In such ease, father-inlaw to reoovnrtied rent of son-in-law.</p>

<p> Malicious prosecution. Probable cause. Immaterial issue. Malice. Verdict of acquittal. “True bill.'1'1 </p> <p>Caw., Cafe >80..</p> <p>T mai¡0jous prosecution, “probable beproved''^ under the gen-which will not determine yprSy0Iflr0" An informal ^adeup°ina proper manner</p> <p>Or: the general issue, the plaintiff' must prove that the proseutiorv was malicious. Malice is the g ai amen of the action Malice will be. inferred from the want of probable cause.</p> <p>Acquit!;.1 liy a r.e > t\ is e.-itlptice of ittnoce.iop, huí rol uf malicp in the prusicuior or want "fprob-ad '<■ cause. Jn an action for malicious pro sectil ion, alie. a ion of malice or want of probable cmfe is jmljspeusuble</p> <p>When a grrtttd jury find '»indictment to be a Into bill, it is pñrna facie ev donee 'of “prnbttbk cause,” but not conclusive.</p>

<p> Deed of trust. Creditors. Parties. Revivor. Processt </p> <p>'Chancery. Case 181.</p> <p>Deer! of tru-t for the benefit of certain creditor ; to a bill for the ■ purpose of impeaching the deed on the around of fraud, such creditors are necessory parties. Upon a bill of revivor, a subpoena should be issued and served on the defendant.</p>

<p>Error to the Clark circuit; George Shannon, Judge.</p>

<p>Appeal from the Bourbon Circuit; Richard French, Judge.</p>

<p> Pendor and vendee. Possession. Sheriff’s deed. ‘Levi/. Execution. Ejectment-. Equity. Executory contract. JVolice. </p> <p>Ejectment. Case 184.</p> <p>Possession of vendee under an executory contract, is, in contemplation of law, the'possession of vendor. Sheriff’s deed to land sold under execution relates back to, and takes effect from the'levy. Levy of an execution on land creates a lien which renders the defendants in the execution incapable of conveying the legal litle, un. til the levy is discharged. If vendee in possession, under an execu-tory contract, obtain a deed from vendor between the levy and sale; he cannot defend himself at law against a"purchaser under the execution ; his remedy is in chancery:</p>

<p>Error to llie Genera? Court; Henry Pirtle, Judge.</p>

<p>Derivation of title. ' Executors. Power of attorney. Heirs. Appearance. Answer. Guardian ad litem. Publication.</p> <p>‘dase 186.</p> <p>In thfl derivation of title to land through. . executors, th'e'. will, by which they aro authorized to dispose of the1 real estate, 5 ' should be .. exhibited, and-under a deed executed by an attorney,', the power of ■ attorney should be v also exhibited.</p> <p>To prove a the heirs of another, the him*!’ self toa narration of the relationship,, and should "e^eraHerms that the per-’ sons meheirs*.</p> <p>When the defendants personally appear in court, and enter an appearance, or where their answers are sworn to and filed, service of process may be dispensed with, and waived. "</p> <p>In general, it is irregular to^ appoint á guardián ad fants, until* they have the court by service of process, Hcatioif is obtained at the Ís23'and^he printer certifies under the date of August L824,' ¡jlat ha? efftwo* *S " months suc-cesuvely; the. because the certificate publication] may have pearance temn</p>

<p>Error to the Jessamine Circuit; ff*. L. Kells', Judge.</p>

<p>Demurrer. Breaches. Covenant. Appeal bonds» Es-toppel. JYul tiel record.</p> <p>Case I88-.</p> <p>To a declaration in covenant containing sufficient and insufficient breach-' es, a demurrer which is applied to the whole of it, ought not to be'sustained.</p> <p>In an action bn an appeal bond, the ob-ligors are cdojjped to deny the existence of a decree, which they have acknowledged, in the condition of the appeal bond, to exist.</p>