Volume 29 — Kentucky Reports

<p>Error to the Madison Circuit, Richard French; Judge.</p> <p> Accord and satisfaction. Covenants. Bonds. Chattels, Choses in action. </p> <p>Covenant</p> <p>Case X.</p>

<p>Error to the Hardin county court.</p> <p> Motion. Notice. County Levy. Sheriff. Sureties. </p> <p>Motion.</p> <p>Case 2.</p>

<p>Error to the Lincoln circuit; John L. Bridges, Judge.</p> <p> Bank notes. Judgment. </p> <p>Covenant.</p> <p>Case 3.</p>

<p>prooeoiini's ag.iinpt ab- • nts^amfon known heirs', upon con structive no-lic-tiion. njus't he strictly ob-serven.</p> <p>If the hill allege, that the hemfarn unknown .to the complainant, fo'thafuíT strict cotupli-anee with the r^uiresan'aP fiOavit that'1 the heirs are be'filetTaion' with the bill?</p> <p>Tho iutorpo-•'í'iud ui ihe (.nuticctlcr to * a oreo ooii-spfioifi-ondy, cimnlct !>»' n'i.¡ ] i(o't oy a KOoud discretion.</p> <p>Bill against unknownhoirs the omission to file an affidavit, that the name» of the heirs are unknown to complainpnt, is a fatal error. If the complainant, in a bill against unknown h’rs omit to file an ■affidavit that the names of the heirs are urik own to him, his bill should be dis-mi‘«oda)itto!if prejudice.</p> <p>Additional opinion,</p> <p>Additional opinion.</p> <p>The statute requires ordtion^avainst" •absent defen-danta,toba certified by the order has' been publish-. ed >></p> <p>Ordersofpuf;, {jecertífiTb* theCprinter proprietor of the newspn-they'were^11 published,,</p> <p>Order of pub-fled by'ane*:tor, is insufficient.</p>

<p>An heir cannot maintain an ai'iiuti in his own name lor tile recov - ery of slaves belonging to the e-tate of his ancestor, without having previously obtained the assent of the ad minis - trator.</p> <p>Slaves are assets in the handsof the administrator and he may sell them for the payment of the debts of his intestate, it it be necessary to do so.</p> <p>The lapse of 20 years, from the grant of administration, is not sufficient, of itself, to raise tion*1 ttmuhe aumim--Wor ha*. consented trouters ma" take the may slaves which iniestate’s'ef6 tme.</p> <p>Nor can aju-years fro•« the grant of admiun tia. ali' i'f'r that tne a ¡minia-tratir has that th^dis-trioutees ■should take whictf'belon to the estate^ of the intes-</p> <p>„ . To authorize an instruc-of a non-suit*, it must ap- ’ pear, admit-tÍn n “Thf true and every inference r^fidiíciUe"" from it, that the plaintiff tosn^'iortMa elabn.P°r W</p> <p>When an ad-«.rihution, it ■«annot b,e propirlj decreed, except uPon theexe. bond with*.», curity by the distributee,to gbalíbecome necessary, for the payment</p> <p>but (he'adminisn istrator can í“*)for,t¿ir re” sctswhkhbe* long to an intfiState’s es-by^he eon-* sentofthcad-ministrator.</p> <p>If an admin-istrator innhohThis as-1** senttoadis-tribution of 'i\eJt“ete’s ^a'^e-OTYto acourt”of ° chancery, whe.re d>e ad. ™jii'be oom-pelkd to do them justice, "crin^hTn/a-gainst respoii-"ibilitj.</p> <p>^b™arj!eai| pa¡(|juisth8 duty of the administrator cation of are-fun,ling b -nd, to make (ii.---tribution,and to corn-cut that suits, if necessary, may be prosecuted by the distributee1, against those whohavepro-perty of the estate in possession, to which they are entitled. Without the execution oí a refunding bond by the distributees, it is not the duty of an administrator to consent, that the distribu-tees may sue for property of tbe estate.</p> <p>Dissent,</p> <p>Disseni.</p> <p>Dissent.</p>

<p>The statute which autho-¿ent against the sureties of a sheriff,with-constitutional.</p> <p>On a motion against a she ¡^reties fora failure to re-(urn an execution, the notice must be against all of them; but, by death or otherwise, it may abate as to ■ One or more.</p>

<p>When the chancellor would, without the mortgage, have had exclusive or concurrent jurisdiction of {ho demand,it is proper, if the sale of the mortgaged property does not extinguish the debt, to render a decree ihper-/¡onam against the mortgagor for the residue of the debt.</p> <p>When a suit m chancery cannot, independently of the mortgage, be maintain’d to coerce the payment of the debt, the power of the chancellor boy caul a decree of foreclosure and ^rtgagcd property.</p>

<p>Tlrror to the Fleming circuit; William P. Roper, Judge.</p> <p>Publication« certificate of. Editor.</p> <p>Chanceiu,</p> <p>g</p>

<p>On a cove-fo’SWorthe payment of ten thousand instalments66 “tobedis-’ chargedinthe eralf^recelv” aWeatthe1 " time of pay-monty m ths usual course ef business, in Kent^ck°” the measure of damages is the value of e severa m-sfalments at the times when became due.</p>

<p>Error to the Montgomery circuit; Silas W. Robbins, Judge,</p> <p> Agents. JVbn est factum. Parol evidence. Deeds, Delivery. </p> <p>debt.</p> <p>10</p>

<p>Whore a por-son, who has madosuch improvements apon the land of 7th Jan. ’24, after-wards acclaim which .Tovars the same lana, it isunneessary aJ&'-tioretlim-proveniente, gay^hislast acquired title from forfeiture"</p> <p>The act of 9th Feb 1809, “to compel the speedy adjustment of land claims,” proteots a landlord, who' lias settled upon his land by his tenant.</p> <p>An entl'y, ¿county, cannot be applied to. land ty.</p> <p>T° give noto-entry,the law requires that county where the land lies,</p> <p>A settlement np°n!andap-tract, altho’ part of lie,i without iftecowltH‘</p> <p>Who has a right to be ¡jefcndanUp1 ejectment. does not depend on any visions " but"0" apon rules of court, adopt-tisea^roufdie commence-meat of the anmU'e dls cretion of the court, wnich it has a right contreiingthe preparation for a trial in ejectment.</p> <p>No person is d^ncTn 1° le< imen: un'less he be ten-•mt.i-.nd is, or 'íi-.-í&es'íkí'/'or '••¡ceives the ■ T“t- .</p> <p>be'íhnTne'd tode'endin ejectment.un-loss he hastíos- or conltruc-tive.</p> <p>A person becada ade-fondant, in e-jectmentmust ♦itlf^feoon-13 nected to,and eonsistent jossion of the" occupier;and that, conso-quently, his title would be any claim ad-.versé to such</p> <p>ger to the posshall j10* be admit-in ejectment, In ejectment', none but the. b^admitted1 todefendwith the tenant,</p>

<p>ef i? not evidence agaius.. hi* ro-defendants.</p> <p>To constitute nof resident heirs,partos toa suit, thprp must h® cation against</p> <p>jhecourt shouldnotap-point a guar-fórínfants6”4 until the service of pro-oes3> ac,tua* tive, or a personal appear-anceby them.</p>

<p>When land, ¿fYhfmotter SCends-from’ her taiherto ^¡“.on’. ™ho cy^without'' children, the passes to t^r father-than to the mother’s bro-und -ai£"</p> <p>The 6th seetion of the viae°S) tluit* where an in-having title6’ to real estate derived by ii^oent/rcTO the mother, Restate [Jj®:Other’s relations rather than to excludes the father from • cases where the estate fterae/f totheinfants.</p> <p>ir an infant who has inhe-mother, live until h(> has attained 21 yeari. of age, ant! than dies without issue, his father and not h i ■ moth^rh ccs'i— ti»ns, sareead to his estate.</p>

<p>¡phe party who holds the upon'whom, consequently, the onwpra* £"a3 the right to open and con-gu^ent^' h</p> <p>Whenever there is a presumption that a fact exists, hew-hoouakes an allegation to the contrary, must prove it.</p> <p>Deeds ai ppre-sun.ed to have been di-liver-ed on the day of their date. He, who alleges, that the delivery of- a deed was made, on a different day fiom that of its dat -, mast prove it.</p> <p>On a motion to quash a recognizance for want of a judgment as its basis, the plaintiff in the motion must-prove, negatively, that there is no suchjudgment, as that which is recited in the recognizance. On the plea of no consideration, the onus probandi lies on the party pleading it.</p> <p>When a ven-dee setk® a rescission of an executory contract for land, alleging that vendor has no title, and demanding an exhibition of it, vendor must prove his title to.the land..</p> <p>it a general rule, that a VartU' wjH “ot to i^ive evidence in hir ow“ case*</p> <p>When there are several ajfaotkme®11 delicto, and upon the the pait of the plaintiff anil defen■dants, there is no evidence agains one of the defendants, he may be acquitted, and examined as a witness for the others.</p> <p>Husband and wife cannot be witnesses for or against each other.</p> <p>when either the husband other is an incompetent witness, whether the suit be civil or cnmma • i</p>

<p>• A bona under a claim by him on land. regularly de-wealth, isen-to cem-the^m^rove0/</p>

<p>Appeal from the Nelson County Court,</p> <p> Wills, Insanity. Drunkenness. </p> <p>Wilt. Cvse.</p> <p>Case 16.</p> <p>See case.</p>

<p>Payment of 8uret°btnf * t?ef Hm°tore-imbursoment from the print orto contri!^’ hutionprorata from his ^3-</p> <p>who ha-- paid the debt, release one ofhis co-sureties, that onerate\hd" other CO sure•ties nor print cipal obligor i““$ debtP'a^ tbe</p>

<p>Error to the Mason circuit; Wii.i.iam P. Roper, Judge.</p> <p> Consideration. Covenant. Pleading. </p> <p>'0OVENAN</p> <p>Case 18.</p>

<p>An oilioial return »■ nulla Iona, h prima facie evidence of insolvency.</p> <p>A sells land to B and takes his note1- for the purchase money; after-wards f. rescinds his contract with C from whom he had purchased the land, and becomes himself insolvent ; after this, D reeov' ers a judgment in ejectment for the land, and elects to take compensation for the land in its unim- ' proved state, «he chancellor will sustain B in paying to D so much as to se-ewe in himself the title, and will enjoinpro tanto the notes given by B to A.</p>

<p>A contact, ^tenTtp fraud a erify, tor, is uttejjjp <he mand ofaerS di tor is purely, maent execution thereon,returned no estate found,be-. fore he can wn'tohav'e fraudulent i: ide.</p> <p>where a cred-t£dned°°d5 mént a m.sa. and1 in virtue of iy, debtor to jail8 and the or has broken ids'escape^6 without ing the debt, Biav^nthoul suíñgout other executivepro_ ^bii/to'set*111 side fraudulent convey-debtor^tt>e oerty.3f)ro"</p> <p>ckoses in action of are-oanbe ed, only, by pursuing the ifreAe't of’2i, fctJigfest, 505!</p> <p><.■ Payment for SSvvío* fecquired ft under % oon-lotWeeatim witti an intent to defraud the creditor» of vendor,will legitimate the contract, nor rescue the the^^of* the creditors.</p>

<p>Every covenant must be express or implied.</p> <p>To create an oxpi'ess covenant, no technical words nor form of expression is</p> <p>Any words in a writing, under the band and seal of a person,importing an agreement, is a covenant ; and a. seal is not now important.</p>

<p>Error to the Oldham circuit; Henry Pirtle, Judge.</p> <p>Mortgage. Foreclosure. Decree in personam. Jurisdiction. , Chancellor.</p> <p>Chancery.</p> <p>Case 22.</p>

<p>On a motion-against a constable and hia sun-tie», fora ' veral)i(, failure to return an ox(-ciiUon, interest not rocO"</p>

<p>Error to lhe.Bourbon.circuit; George Shannon, Judge.</p> <p> Special hail. Scire facias. Averment. Ca. sa. </p> <p>Scire Facias.</p> <p>Caía 24.</p>

<p>.Error to the- Madison Circuit, Richard French, Judge:</p> <p> Special bail. </p> <p>iiruoiAL bah,.</p> <p>Case 25.</p>

<p>The Act of ’28, which extended theju-visdiction of justices, and made it concurrent with that of the circuit court in a certain class of cases, did not augment the preexisting jurisdiction of the-circuit courts. Justices still have exclusive jurisdiction in those oases, over which they had, pri- or to the Act of’28, exclusive jurisdiction.</p> <p>When, upon a plea to the jurisdiction, it appears that the principal sum in the note sued on, has,by partial pay ments en ■ dorsed thereon,been reduced fn$50,thb cirewt court ha = no juris diction.</p>

<p>An executor or administrator i- not bound to make distribution, until a refunding bond has been E-iven or tendered to him. An executor or administrator is nal chargeable with interest, unless he has made profit" out oí the estate, or refused, on a demand and tender of a sufficient refund-inst bond, to make distribution.</p> <p>An allowance to auditors of $5per <hem, dny-'Hervices,. is unreasona-ordin-Sh,’ia' oasés.1^'</p> <p>Tuition for a", re"!iearin£“</p> <p>Petitiion for a re-hearing.</p> <p>Petition (or ft re-hearing.</p> <p>Petition fot a ra-hearing.</p> <p>Petition tor a. re*lleannS</p> <p>Petition for a rc-heanng.</p> <p>Petition fora re'hearing,</p> <p>Fe.ition ior a -.-e-hearing.</p> <p>Petition lor a re-hearing.-</p> <p>Response.</p>

<p>Verdietin detinue no |>ar to an,.acl account"^”5 services, and. keepi»g a timeofdetention.</p> <p>When the jury are to de-cido upon controverted lacfs, court should instruct hypothetically.</p>

<p>Error to the Mason circuit; William P. Rofeb., Judge.</p> <p> Jurisdiction. Set-off] Costs. </p> <p>COVENAN'I.</p> <p>Case 29.</p>

<p>So'set phrase •-constitute*! 'ohal!e%e-to' with wea- or letter,sent by one party to ation,admi8si-Tbe^ur^s tia circumstan-be n* a*o h a 1-8 lenge within</p> <p>The intention object of the duty of the court to t^tbaUntca* i¡on,</p> <p>inviting to a’ meeting, th$" rnííts face it to b.e merei/emp’ty boast, and in ridicule of wínjcn addressed, they may acquit; the^deem'it in earnest,</p>

<p>Error to the Shelby circuit; Daniel Mayes, Judge.</p> <p>Corporation. Liability of corporation„</p> <p>CiLiA'CER'.'.</p> <p>Case 3L</p>

<p>Motion will personal representatives of decedant, if ponsiblí by6" jnotionrnhis life.</p> <p>Paymaster has a right to retain his commission, and it must be deducted from amount charged to be doe the regiment. Interest cannot be recovered against paymaster on motion. .</p> <p>On motion against several as administrators of deceased paymaster, service on one, it is error to take judgment without proof of administration.</p> <p>The 45th section of the act of 1(115, 2 Dig. 903, which author-¡?esa motiop agam?t a-de--doe» * not apply to his reirresen-{jJey 1»aTee° .queney.</p> <p>a°utPeCt;-e(i jn the hands of P® dra’wn by the -Colonel for regimental Neither tie nor his representatives liable tf0ñu„ntiim°’ such order presented and notPaid.</p> <p>■ '■ '■ <>' ií-.;V‘'hy0¡»oLt .. .• -ir’iffus : >; e. accept v v the '-Monel’sor- '• '*'•</p>

<p>A¡ from ihr- JViiWsoii circuit; Henry Pirtle, Judxe.</p> <p> Aeconimod-Jion note. Bank United States. Discount. Sureties. OhUg h'ort. Discharge-of sureties. Pri-vity. Action to the, use.'of aMthrr. </p> <p>AND</p> <p>■ 33.</p>

<p>Order of county court, grantins; Ir-r-ry, appearing correct on its face, conclusive of.right to land arid not to be inci-denta'ly as..sailed.</p> <p>The grant of aright of co™rann,clot)s ]y divestgrantor of right.of ‘erry-</p> <p>J'ue simple, Joes not pass by grant of '■ommon.</p> <p>Act of 1795, establishing Hew Port, construed.</p> <p>Oonsiraction' of legislative cdby extrinsic evidence,</p> <p>of ^1" cantor of no right which is not essential to the right of common,</p>

<p>Where the frado°3^not°r" appear* tobe void, its validity cannot be questioned 4aUaterally.</p> <p>Judgmentofa e.ranf a ierrjr, Wil! not be're-^sed^u-.'less pear&f’ public benet', would result blisbmenf the propo ferry-</p>

<p>poseofiv.tro-* duerna; inferi-pose^u’e losgofapaper.</p> <p>Hule which view to the introduction timemytoda-p0se to the' loss of a Pa-peI’ *xteud8 thecustody or control of 7bhinreifPM* has,™ ay be presumed to have-</p> <p>Where air in-tc6t'Ate if domiciled in a for-1 sign country, andtheredies, leaving no property in this state, no administration can be .ranted in this country on his estate.</p> <p>Where a ele-eetlanlisdom-idled at his death in a foreign country, and had no property in this state, although some of his property be after-wards brought into this state, no .idudnis-tration can be granted by our courts.</p> <p>Formation of aei» county Siv.e8i.tal] the and cri-minul, over the terri' property of individuals-within it. ooúnty,oufof which it has been formed,</p> <p>[fa testator bas a mansion e-0'f ^¡denee, his will shall ^ the County° wherein such ro^sion-¿n0w:.°place of residence^</p> <p>Sa>ne rules, outtheprojior court to re ceivetheproof toth’egrtmling of administra-tato?s estates.</p>

<p>A’ppeal from the Madison circuit; Richard Frhrch, Judge</p> <p> Jurisdiction. Setoff. Devise. Chancery practice. De vise. Limitations. Chattel, </p> <p>chamcem.</p> <p>Case- 37.</p>

<p>í'he words insertadla” -stipulation to do an act, or ^ntitTeTthe party stipnla-torio at arT" time before the day, and upon perfor-der and refu-mediately111* vested with all the rights fnu'e^attaoh-ed ance on the ■?Ry-</p>

<p>Appeal from the Nelson circuit; Paul J. Booker, Judge.</p> <p> Specific execution. Condition precedent. Lapse of timer </p> <p>Chancery.</p> <p>Case 39.</p>

<p>Order paya ble in groce y®] j,Sfg0t 0 change. "</p> <p>Betilion for a re-hearing.</p> <p>Petition fora, re-hearing,</p> <p>Petition for re-hearing. a</p> <p>Petition for re-hearing.</p> <p>Order paya-r/es^s *aoo(Tp-ted by drawee by a written thereon^nd afterwardson drawee’s pa-tile taking in of the order, consideration of drawee’s parol promise sufficient to' uphold it, anti assumpsit will ie on i. rol promise, discharge it, • payee eurren-ders to him the order; if by drawee, appears to have been a» settlement of the debt due by him to drawer, and also of that</p>

<p>Error to the Mason circuit; William P. Roper, Judge.</p> <p> Commonwealth’s bank notes. Judgments. Contracts. Lien. Redemption. JVis i decree. </p> <p>ClIANCRRV‘</p> <p>Cass 'll.</p>

<p>Error to the Warren Circuit; Henry Broadnax, Judge.■</p> <p> Deeds. Principal and agent*- Evidence. </p> <p>Chancery.</p> <p>Case 42»</p>

<p>-A-ctot 1802, bitJfumler a penalty of ,'^owners o -lav.-s from permitting jar^ anclhire themselves out, anrt the ^''uich'hn^os Ascertaini10S" penalties going at lar°-e and hiring “sebes ©f liarrodsburgh 0T Richmond, compatible,</p> <p>By permitting a slave to go iarge&hire °hue towns of Har-rodsburgh or penalties' 0f both the law of ifs02 °{ onrred.</p> <p>legislature ' has the power to inflict more- than one penalty for the same offence, provided the penr alty does not affect life or, limb..</p>

<p>In 1783, tbe falls of the Ohio river hadobiained such notoriety and distinction, that they were known in common con-yersation by the appellation of '•'the Falls ” Courts, will judicially notice well established historical facts-</p> <p>r_ which ealls^ior a" certain nnm-«exclusive8 of prjor claims,” but, eiu’B no databy which tlle fi10se claims can be ascer-ta!ned by a locator, is valid only for ^® forinciwi. ing prior c'aims-</p> <p>In an entry, a cali ex" olaims»°r when the base and side lines or boundary are given, will not invalidate the entry lor the quantity spe-eified when laid off adjoining the base within the side lines.</p> <p>Call, in an entry, to exclude “prior claims,” con-si rued to mean such claims only as are legal and valid.</p>

<p>Decree rendered against isnotTbj ac° tual or con-«tractive ser-P™.' to the suit, is as t0 vvhereTrde’r of publication hd3 not been the record “that it was proved dui^cxecuT l ^tarar-ficient evilpU*>" authorize the rendition of «s decree.</p> <p>Bill filed sis a bill of review, considered as an original • bill.</p>

<p>A statutory guardian in this country is both tutor and curator. As parens pat-ries, the com. monwenltb is the guardian of all infants, residentwith-in her borders, and her guar* diansbip is distributed among her several county courts As the commonwealth has no power ov.er infants who are not resident within her borders, so no comity court has power to appoint «tutor for.an infant v> ho is ■ not domiciled) in its county/</p>

<p>Error to the Henderson Circuit; Alney McLean, Judge.</p> <p>Interest. Evidence.</p> <p>1>E»T.</p> <p>Case 47.</p>

<p>if covenant real be not broken in lifetime of ob-ligee, his heirs are entitled.to all advantages resulting from the covenant, and are necessary parties to a suit for the rescisión of such covenant.</p>

<p>terror to the Logan Circuit; Hen. Broadnax, Judge.</p> <p> Covenant, action of. Judgment. Interest. </p> <p>Covenant-</p> <p>Case 49.</p>

<p>Wlu-re, thro’ > roí» and pal■ible mi«t!rke -lore dr loss land is conveyed than (lie contracting- pni-ties contemplated, relie!' blion'd be granted (o the parti Injured.</p>

<p>Error to the Oldham Circuit; Daniel Mayes, Judge.</p> <p> Slaves. Assault and Battery. </p> <p>’Í'rESPASS</p> <p>Case 51</p>

<p>As the limitation to a suit on tho legal right (to land) commences only with the adversary possession of the party to be sued, so the chancellor, will not permit that statute to bar an equitable right, when the legal right would be unaffected by the statute.</p> <p>Until the elder patentee has entered an the land, claiming proprietorship, tho holder of an adverse equity, is not presumed to know that an elder grant has issued for the same land, or that the grantee will ever question or disturb his equitable, right.</p> <p>wiíTñnTjTíieij the- elder patent* e nor the {^'(wíio'bó'ds an equity by' vírate <r his l'ntT’) heenin ¡u.ttt-oi theTanc?!* the statute of hmitatirns eauitablc right oi either.</p> <p>When fio survey is exhibited in the case, the recital in the patent Mill be deem eel prima facie evidence of the fact, that a survey was made, and made as re-aited.</p>

<p>In a suit in cbanc®r3'ito c;fi0 per/-or. manee of a bomlforthe of te^yit°is illegal, in th® taxation of an attorney’s fee of ten dollars- It is on ^er'e3 the title or boundaries of ooma'i^ question, that an attorney’s tase(i,</p>

<p>Error to the Trigg Circuit; Ben. Shackleford, Judge.</p> <p> Piras. Abatement. Affidavit. </p> <p>Debt.</p> <p>Case 34.</p>

<p>Return- of’ ■nulla bona, by. a deputy shex-. iff, will authorize the filing of a bill to subject debtor’s chases 3a action.</p> <p>Return of /jona (Táj's^iVter the test of the ex-eyution, con-jo!e”trJtus“,|’ to authorize filing of a aébto^'íAwwí in action.</p>

<p>which 'to-8’ vides for™he discontinuance °ot8T<1<l 'to* oase'sof ffZ-° tcratiomoi roads. There distinction^6 hetwienthe alteration and discontinuance' The public beknowVby regarding the poipt» at barin'a'nd^ terminate, according to ^establish ment; and when »o con-pdered, there in distinguishing between the alteration tmiiaáce°ofa</p> <p>Petition.</p> <p>Petition,</p>

<p>Error to the Bath Circuit; Silas W. Robbins, fudge.</p> <p> Venue, change of. Ejectment. Jurisdiction. </p> <p>Ejectmen-t.,</p> <p>Case 57</p>

<p>Error to the Green Circuit; Bew. Monroe, Judgp..</p> <p>Administrators. Devastavit. Administration bond»</p> <p>Appeal*</p> <p>Case 58.</p>

<p>Error to the Christian Circuit; Ben. Shackleford, Jtttlge.</p> <p> Land, sales of. </p> <p>xjJhawceb,</p> <p>Case 59.</p>

<p>“Error to the Franklin Circuit, Daniel Mayes, Judge.</p> <p>Execution, properly exempt from. Exchange.</p> <p>Detinue.</p> <p>Case 60.</p>

<p>Error to the Lincoln Circuit; John L. Bridges, Judge..</p> <p>Execution, sales under. Officers*</p> <p>Mowon-</p> <p>Cased.</p>

<p>Appeal from the Jessamine Circuit; Wjt. L. ICeci.y, Judge.</p> <p> Evidence. Bills of exceptions. Practice.' </p> <p>Ejectment.'</p> <p>£ase go</p>

<p>Appeal from the Franklin Circuit; Daniel Mayes. Judge.</p> <p> Trustees. Cestui que trust. Covenant. Deeds. </p> <p>Covenvnt.</p> <p>Case 63.</p>

<p>W1]ere an a gwerpraj^to considered a.cross bil1 oourTshoíld be of opinion the de* (^mpUOrfanT were part-the deítrofsTbe effic’10J o' the oroaTbint *</p>

<p>Entry, to lie “ou the farko/clear «ret li iriolud-ini; a cabin bu‘!tata Saúfnl l^yon, adjoining an Msurvey on declared invalid for ita napimess.</p>

<p>itemise buhe and wife a-mcnrlcil by striking out .David ami >n serf mg Jlbra-A-rai, inf1 trae namfi of the husband, co»-sidiTcd not to be error.</p> <p>Person, not party (or privy) to a suit cannot be affected by it.</p>

<p>Error to the Hart Circuit; Ben’j. Monroe, Judge.</p> <p> [Judgments in personam. Foreign coiirts. Citizens and nonresidents. </p> <p>^eb*.</p> <p>Cash67.</p>

<p>General rule is, that when £ P(!rso? 0j. ignorance, become reme-dilessatlaw, he will not be relived in equity-</p> <p>^fendanUn ejectment has by artifice & j ™ procrastinated judg--meat, and the issuing of an h-ahere facias ^¡Tterm of ^ the demise laid in the dc-g^red^he^ chancellor6 grant re"</p> <p>Petition,</p> <p>Petition,</p> <p>Petition,</p> <p>Petition.</p> <p>Petition.</p> <p>Petition*</p> <p>Petition..</p> <p>Petition,</p> <p>P&titioiJ,</p> <p>petition '</p> <p>Petition,</p> <p>Petition.</p> <p>fetitiop.</p> <p>Petition.</p> <p>petition.</p> <p> féúüoo. </p> <p>Petition.</p> <p>Petition.</p> <p>Petition.</p> <p>Petition.</p> <p>Petition.</p> <p>Th~tition.</p> <p>Petition.</p> <p>petition</p> <p>Petition.</p> <p>petition'."*"</p> <p>Petition,</p> <p>pet¿t¡on</p> <p>Petition.</p> <p>e 110"*</p> <p>Petition.</p> <p>Petition</p> <p>Petition.</p> <p>petilioll</p> <p>¡Petition.</p> <p>*e 110U’</p> <p>Petition.</p> <p>pet¡t¡on</p> <p>Petition-</p> <p>Petition.</p> <p>Petition..</p> <p>Petition.</p> <p>Petition.</p> <p>Petition.</p> <p>Petition.</p> <p>Petition.</p>

<p>Error to the Ijardín Circuit; Paul I. Booker, Judge.</p> <p>Covenant. Damages, measure of. Interest.</p> <p>Covenant.</p> <p>Case 69.</p>

<p>Error to the Bourbon circuit; French, Judge</p> <p> Executions. Levy. </p> <p>AGREED CASE.</p> <p>Casa 70.</p>

<p>Covenant SJOR9 trued.</p> <p>DllSENTj</p> <p>Dissent.-</p>

<p>Error to the Harrison Circuit; Brown, Judge.</p> <p> Defeasance. Pleas, in bar. </p> <p>Petition & SUMMONS.</p> <p>Case 72.</p>

<p>There is judgment against the principal anil surety in a bond, the principal re-plevys the debt (the surety not joining in the re-plevin bond,) it seems, the surety is a ' competent witness in a suit in chancery, brought by the principal for relief against the replevin bond.</p> <p>It seems that a surity against whom a judgment has been obtained, is released by a replevin bond In which he does notjoin, so long as the replevin bond remains in iorce.</p>

<p>Deedofeman o°f°'</p> <p>A suit in maintainable.</p>

<p>Error to the Hardin Circuit; Paul I. Booker, Judge.</p> <p> Appeals. Motions. </p> <p>Appeal.</p> <p>Case 75.</p>

<p>Oo « writ of error to verse a decree of foreclosure and sale of ^remfse^no decTsicm’cm the validity be6 T^n b*11 less the purchaser of the piemfses^e a party to the> court. 1D *S</p> <p>Alter a sale of mortgaged der'Tdeoreé >t is too late to orospeute a writ of error rectin^ irrcg-ularilies in the decree directing the sale.</p> <p>Note. The above opinion was delivered after a rehearing, Reporter</p>

<p>A pleader should make his defence lytothe whole, or part cause ofaction set forth in the decía-noUeive ^ ¡í9 applica-g°“e>t0 in er"</p>

<p>la a suit on a ™®r^ant8f twelve months, proof th*t tiebt0>'» whether the account sued on was just, said, “that it was, so far as jj'ad'left it t0 the other party, and hfld kePt account himself, but con-^aintiff was indebted him,” does not lake the of the statuts of limitation!</p>

<p>Error to the Bath Circuit; Silas W. Robbins, Judge.</p> <p> Specific performance. </p> <p>Chancery.</p> <p>Case 80.</p>

<p>Error to the Clarke Circuit; Rich. French Judge.</p> <p> Limitation of actions. </p> <p>Chancery.</p> <p>Case 79.</p>

<p>A and B exa-cutesepemte cTor'the^aUh fill service of D as an ap-taUorin^basT ness forgone " year,D fails to serve out his byr accident’ loses both of the covenants insuchvcase sort to chan-ceryto recov- and B To contribute or pay equal the damages which C has the^defiílca^ tion of D, ai-tho. their cov-enacts were irfsuch case, ’ fo/Velief^Ap andl aré both necessary parties.</p> <p>-Dissent*</p> <p>Dissent.</p> <p>Dissent,</p>

<p>Error to the Montgomery Circuit; Silas W. Robbins, Judge.</p> <p> Pleading. </p> <p>Debt.</p> <p>Case 82.</p>

<p>Error to the Gallatin Circuit; Djíbiei, Mayes, Judge.</p> <p>Surveys. Patents.</p> <p>Ejectment.</p> <p>Case 83.</p>

<p>Error to the Shelby Circuit; Henry Davidge, Judge.</p> <p> Appeal^ dismissal of. Writ of error. </p> <p>chancery.</p> <p>gase 54.</p>

<p>A person who a°quire8 P03* land under ■ the title of 'moth.er as executory y contract, will dot be permit-the validity of the title, «uto which he entere •</p> <p>Aconveyance by a husband, of his wife’s land during the ooveture, operated at common law, as a discontinuance of the wife’s right,' but the law, in such cases, has {^statute!86</p>

<p>Error to the Christian Circuit; Ben. Shackleford, Judge.</p> <p>■ Usury. Parties.</p> <p>Chancery.</p> <p>Case 86.</p>

<p>Appeal from the Christian Circuit; Ben. Shackleford, Judge.</p> <p> Commonwealth's lank paper. Loan. Sale. Usury. </p> <p>Chancery.</p> <p>Case.</p>

<p>The est is a strong and almost F°^oleusi^e j0aai®e 0 a</p>

<p>Error to the Bracken Circuit; Wu. P. Roper, Judge.</p> <p> Will, construction of. </p> <p>chancery..</p> <p>Case 89.</p>

<p>Error to the Caldwell Circuit; Ben. Shackleford, Judge.</p> <p>Executors and Administrators.</p> <p>Trespass.</p> <p>'Case 90.</p>

<p>On the disso •“■Iu°nnoti°0fn'113 the amount of damages ^“ifned and fixed, by the court, on the decrecí ^</p> <p>Petition for a re-hearing.</p> <p>Petition fora re-hearing.</p> <p>petition for a re-hearing,</p> <p>re-heanng?1 a</p> <p>Petition for a re-hearing.</p> <p>Shearing^18,</p>

<p>fraqf without allnefféciaal as allegation without</p> <p>Petition for á re-heariug.</p> <p>Petition for a re‘hearing.</p> <p>Petition foe a. re-bearing.</p> <p>Petition for a re-hearing.</p> <p>Petition for re-hearing. - a</p> <p>Petition for a re-hearing.</p> <p>Petition fora re-hearing.</p> <p>Petition for a re'hearins"</p> <p>Petition for a re-hearing.</p> <p>Petition for a re-hellrinS*</p> <p>Petition for a re-hearing.</p>

<p>General rule, that to a bill in chancery which seeks relief, (for a different rule prevails where a discovery only is sought,) all persons materially interested in the subject of the suit, must be broughtbefore the court, in the attitude of complainants or defendants .</p> <p>It is a rule, that no one need be made a party to a suit in chancery, against whom, if brought to a hearing, the complainant can have no decree.</p> <p>A residuary legatee is not a necessary party to a bill by a legatee against the executor.</p> <p>Where a legatee out of real estate Síes a bill, every legatee whose legacy s charged on be before the court,</p> <p>Matter in avoidance, “eapj0VS(i.</p>

<p>Appeal from the Jefferson Circuit; Henry Pirtle, Judge-</p> <p> Roads. </p> <p>Roa» cash.</p> <p>Case 94.</p>

<p>Chancery has jurisdiction to decree the cancelment or surrender of bonds, deeds, or other documents which have been fraudulently procured, or are unjustly detained.</p> <p>Chancellor has jurisdiction to decree the cancelment or surrender of bonds which have been fully discharged .</p> <p>Although the surrender of a bond or note, which was paid on the day it became due, may be decreed before judgment is obtained on it, yet after a judgment is obtained on it, the chancellor cannot relieve against the judgment, merely on tbe ground oí pay ment on the flay.</p> <p>The non-exe-culion oí a bond or payment on the day it became due, are not, per se, fit subjects of investigation in chancery.</p> <p>It is only Where fraud ihas been practiced in the execution of an obligation that the chancellor has jurisdiction (on the ground of fraud) to enjoin a judgment on it.</p> <p>When a party has an opportunity to make complete defence at law, he must do so, or ■be remé'clilesü',' unlegs the _ • :t ground of ‘de-fence be (such ás fr^ud,).pe)-ke'i'éqüi&tbl#-" matter. Mem ¡estfaebem, is Wit of ■ itself • ■ and ;alone e-suitable mat-</p>

<p>Error to the Franklin Circuit, Daniel Mates, Judge</p> <p> :Setoff. </p> <p>Petition ,and SUMMONS.</p> <p>Case.96.</p>

<p>Error to the Harrison Circuit; H. O. Brown, Judge.</p> <p> Bill, dismissal of. Parties. Publication, certificate of. </p> <p>Chancery.</p> <p>Case 97.</p>

<p>Law does not require that a readbyor to thesubscri-bing witness-tbev°should know its oon-tents.</p> <p>An occasional languor and absence, or evenjmbecility of mind exhibited by a testator,if they are only the natural and ordinary consequences of his old age, are insufficient to invalidate hi* will.</p>

<p>Where a note has been executed to the intestate, any one of his administrators can transfer, by assignment, the whole legal right to it. When a note is executed to A, “administrator” of B, it will be considered, for most purposes, as a note to A individ-ually; and he ;n his own name, and will, (in what ever character he may _ ble for costs,</p> <p>o<ie joint ob ligeecannot, by hissole the’whokle gai interest of alltheobli-ir-</p> <p>jomtVobh'geeg be vested with authority ex-e^^assign" the legalin-Crests of all gées^hías f>gn®ent will at lawfu°nless all'their / names he sob-to Jt*</p> <p>mentby'one joint obligee, will not an- _ ftYñw 0n Uie obligation in ■ the assignee,</p> <p>statute of 1798, author-izesan assign-hUownname only when ’ the entire le. gal right haz been legally assigned to him.</p> <p>The fact that an obligation is joint, does not authorize less than all the obligees to assign’the entire legal rights of all.</p>

<p>}0^c^ hon-^ dree! and fifty ““1<5 acres claimedmlhe bill or due un-tr^et'exhibit-ed, deemed sufficient f¡re°f¿ül"^of review,</p> <p>When a bill of review,is founded on uniters ot law on the fiv e of the record, an answer which brings forward matters of fact should be rejected.</p> <p>Oomyilain-ants, proved to be heirs (as represented in their bill) by the state of the pleadings</p> <p>Three years, being ibo limitation to writs of error, will, “proba-bli ” bar a bill of review which seeks to correct errors apparent on the face of a decree or record.</p>

<p>Error to the Trigg Circuit; Benj. Shacklefod, Judge.</p> <p> Chancery practice. Cross-bills. </p> <p>Ciianceut</p> <p>Case 101.</p>

<p>Appeal from the Woodford circuit; WilliamL. Kelly, Judge.</p> <p>Instructions. Limitation,</p> <p>■Bjbmpmbnt.</p> <p>■Casa 102.</p>

<p>Appeal from the Garrard Circuit; John L. Bridges, Judge.</p> <p>Demurrer. Joinders. JYudum poctum. JVon-feas-Misfeasance. Count. Breach. Yerdict,</p> <p>Cass.</p> <p>Case 10X.</p>

<p>Appeal from the Mason Circuit; William 1’. Roper Ju'ljp.</p> <p> Executors. Practice. Judgement de bonis propriis. Yerdict. </p> <p>Assdmiw.</p> <p>Case 104.</p>

<p>C■vena't construid.</p> <p>When the demurrer is-gen-'r.d to the whole declaration, if ei-t )er the counts in the declaration is good, the demurrer must be overruled.</p>

<p>stipulations mclmU'ilin *!'e flinie 'vrl* different and di-tinet oon-</p> <p>A, vvitln>ut autlinriiy, sella land be-loniini.' lo B, covenants to canse a getter 11 warranty deed to be made to the purchaser, & in virtue of the contract, anti by pi r-mission ol B the purchaser makes vnlna-bfe improvements on the land, and af-terwards B retases to carry the sale by A into effect, in such case A & B are both jointly resaonsib'e for the value cf the im-pruvemeuts.</p>

<p>Appeal from the Atulir-ren circuit; Daniei. Mayes, Judge.</p> <p> Forcible entry and detainer. Warrants. Inquisition, </p> <p>Traverse .</p> <p>Case 107.</p>

<p>Ohliyor in an r'uumity bond ovt-T-juiys a jmiiimeot temlerbd against him (*<>£ the amount due in 1821, the surplus ?o over paid will not be regarded as a pay-mrnlof an instalment due on the bond iu 1039»</p>

<p>.Error to the Fayette circuit; Thomas M. Hickey, Judge.</p> <p>Assignee„</p> <p>Chancer?.</p> <p>Case 109.</p>

<p>Atthoiwh oílí-cer has I. vwd ami taken in-property1''the iid • t<> i* in (telenet-an t. in ex ecu-which iti« taken, jet, it ken prty ríom The adverse po=-session oi a TitT'dctcml-ant in the ex-ecntion, he is makTa return of snoh levy, jir to cell the property, I«i «»t«h cnsoT offiriT buying acted unlawful ft in t;k* irnr the prop» ert\, may n ake Ids petire with the injured person hy im-media te restoration.</p> <p>To obtain a reversal ol tl judgment on ground of erroneous in* struct ions píten to Urn jury urn! a refusal, by (he inferior court, to grant n new trial, instructions rmi«t appear in f he record » When inferior oourt has granted a new trial on ground of erroneous instructions Inn ins been given to a jury. and instructions do not appear in the record, appellate court cannot reverse the judgment on account of such new trial hating been granted. When inferi-órcourtgranfs a new trial on erouml that verdict i« con Irary to evidence, the jinl-m1 nt will amt, on that Recount, be reversed, unless all the evidence given on the trinl, be certified.</p> <p>Special demurrer» are abolished. Duplicity in pleading is not, now, an available objection.</p> <p>Declaration mo=t set out the cau=e or causes of action positively and not altsr-natioely.</p> <p>dlHernafive pleading is ¿ad.</p> <p>A party so situated, that had he obtained a judgment in his favor, it would have been reversed on writ of error prosecuted by his adversary, cannot himself maintain ñ writ of error.</p> <p>Property, which belong® to defendant in execution, if in the'ád-tierse possession of another, is not the propersubject of a levy under the execution-.</p>

<p>Error to the Mason Circuit; William P. Roper, Judge,</p> <p>Ejectment.</p> <p>Case 112.</p>

<p>Appeal from the Pendleton Circuit; Henry O. Brown, Judge,</p> <p> JVezi) trial. Appeal. </p> <p>Motion.</p> <p>Case 111.</p>

<p>It appearing, that defendant was pro. vented from answering a bill by an assurance from complainant that he would not hold hirii responsible for any part of his demand, and also, that had defendant answered the decree must have been for a less sum, are sufficient evidence of fraud, in the procurement of the decree, to entitle defendant to relief against it«</p>

<p>Error to the Christian Circuit; Ben. Shackleford, Judge-.</p> <p> 'JSxaculion, sales under. Endorsement of executions. Sales, quashal of. Sale bonds. </p> <p>Momo».</p> <p>Case! 14.</p>

<p>oAj ’iri ,</p> <p>A & B clam adjacent tracts of land interfering in part, A has the better title, B elite's and «adores a past of the disputes] territory, bat after A has entered irpon his land outside of the in-terferí! nee, before twenty years elapse, B shewing no title, A way consider bsra-sslf disseizeS smd expel B by action of from the enclosed land, A is construct-8e>sionto°the extent of his title.</p> <p>The in* tention with which entry is made upon land, limits the extent of the entry if there be no opposing circumstances.</p> <p>The statue to ree¿Vjethn<^ champarty and main-finance law, thereb’an*611 actual pos. session, at the dateof the orsahfad-9 verse to the n,°t_ th'e vendor"5 might have J*.ad construe* io^fe avoids convey-anceas null.</p>

<p>A sells and conveys land on which lie lives to B, & without putting B into possession or removing from the'land himself, takes a lea"e of it from B, in such ca=e, A, though holding over after his lease has expired, cannot be removed by writ of forcible detainer.</p>

<p>Error to the Hardin Circuit; Paul I. Booker, Judge.</p> <p>Lawyer. Bonds, possession of.</p>

<p>Chancellor mil corroer mistakes in set-tlefwhti ami cancel notes executed in consequence of such mistakes.</p>

<p>A employs B to take a drove of hog» to the south and to make-sales, See. decided that nature of the business done by B rendered a bill in chañ* eery, by A, for an ace< unt, &c. an appropriate remedy-</p> <p>Whenever the remedy atlaw is insufficient to the administration . of complete justice, chan-dtofion o^the caso.</p> <p>Case being originally cognizable in chancery, nltho’ the partios have struck a balance, yet as the parties broke off and the settlement by paying or securing the sn-lic'ke¡iccor-dins; to the pmensiTintn, decided, that not oaueclof itsjurbdic-ti.m of the case.</p> <p>Joirt nn-1 sev b^s-t off" puns the'sep-érate claims of either obligor,</p>

<p>Error to the Campbell circuit; Wjliuam P. Roper, Judge.</p> <p> ■JVon assumpsit. Former recovery. Common counts. Special agreements. </p> <p>assum-nit*</p> <p>Case 120.</p>

<p>'Parol aftree-lnpiit, decided 'n .t io amoni.t to a release Of a judgment or to rcM-i-re vi-1a!j<y to ihe bond for conveyance of - land, on which it was rendered.</p>

<p>Error to the Mason Circuit;- Wm. P. Rover, Judge-</p> <p> Decree, Reversal. Sales. Land. </p> <p>CltANCSKT.</p> <p>Case 122.</p>

<p>Variance between execution and judgment, either as to the time from which interest is to be caicuUiied, or as to the amount of costs, is good came for a quashal of it. Execution, issued after a 3 ear and a day have elapsed from the rendition of the judgment, will be quashed.</p>

<p>when the bill alleges that is title (to land which he covenant-u'be!cau°eVthe title is not vested in calls'on the defendant to exhibit his u-ilañt m»stfen" shew a good title, otherwise com-plainantis entitled to relief</p> <p>Administra-tcTpay^tcTa18 creditor of the °?r‘ money^so soon as he (tl18 adminis-^¡tMhe funds of the estate,” there is no oo^enauí until proceeds of the estate aU d"bts of^ superior dig-hands of the administrator</p>

<p>Error to the Nelson Circuit ■, Paul I. Booker, Judge.</p> <p> Administrator. Covenant. </p> <p>Covenant.</p> <p>Case 125.</p>

<p>Error to the Genera] court; Daniel Mayes, Judge.</p> <p> Bill, dismissal of. Party. </p> <p>chancery.</p> <p>Case 126.</p>

<p>On bill filed by vendee for recision of a contract for the purchase of a tract of land, if it appear that ven-dee has alienated and delivered possession of the laud to another, such alienee ninsf be made a party before any decree for recision can be pronounced.</p>

<p>Appeal from the Hopkins circuit; Alney McLean, Judge.</p> <p> Covenantor. Costs. </p> <p>Chancery :</p> <p>■Case 128.</p>

<p>Appeal from the Pendleton Circuit; Henry O. Biiown, Judge.</p> <p>Usury. Land. Assignee.</p> <p>Chancery.</p> <p>(Case Í29.</p>

<p>Error to the Garrard Circuit; John L. Bridges, Judge.</p> <p>Deeds, alteration of. Non est faetum. Interlineation. Rasure.</p> <p>Case 3 30.</p>

<p>Appeal from the Fayette Circuit; Thomas M. Hickey, Judge.</p> <p> Covenant. Slaves, hire of. </p> <p>Covenant.</p> <p>Case 131.</p>

<p>Certificate of feme covert’s ation mwf order to pas3 her title to \^^bere~</p> <p>Deed, made by a femecov-yey herestate in lands,,un-Ies3i* 8e exe-cordance with the mode prescribed by. purs^anTe 'of a decree or judgment of a °etent°f'urS" diction, is raid. Wheth-®r a deei* h,as executed by a feme covert so ^Sja^r mustbepro»e¿ by the record, because the cord. and only, effectual to. pass her title.</p> <p>That the acknowledgement of a feme covert was different from that recited in the certificate of privy-examination of record, cannot be proved by pa-rol evidence.</p>

<p>Error to the Jefferson Circuit; John P. Oldham, Judge.</p> <p> Current interest. Chancery. </p> <p>Chancery.</p> <p>Case 133.</p>

<p>Appeal from the Nelson Circuit; Paul I. Booked., Judge.</p> <p> Possession. Equities. Former decree. </p> <p>Chancery.</p> <p>Case 135.</p>

<p>Defendant, on the trial of a warrant or an appeal in circuit, may call on plaintiff to answer on oath any matter in avoidance, whether the matter in avoidance extend to the whole or a part only of the cause of action.</p>

<p>_ thou'gh* given on a gaming consideration, e~e™ÍT’<1 an tract, therefore chancel-^sflin^bill for its surren-derorcaucelment.</p> <p>chancery cannot alter of common°aw.</p> <p>Chancellor cannot set ^'rn® ‘ fe0]^ cers in a common law tribunal, and direct the courts of law to proceed with execution :</p> <p>In some cases, where a party is concluded by a return, chancellor will decree a sum of money in his favor against the party who by the return seems to have paid it.</p>

<p>p]ea of payment “before 0f suit,” (if it the whole cause °00¿° lon'18</p>

<p>orThofgarticles oniy1 which are sold or for sa’e chant, can be properly denominated a°(°i merchandise.</p> <p>Under our statuteofhm-js^t)0"imita-6 tion to actions of account or founded on • open or cur-vent accounts, cern the trade of merchandize) between merchant and</p> <p>The twelve months limitation to merchants accounts, embraces only currenli accounts ,.</p>

<p>To a »nit, instituted by the President and Director* of the Bank of 'the Commonwealth, pira, by one of the def’ts. “that -at -time the note Sued on was executed ■ be was a Di’reci~p Bank of tha Commonwealth and therefore not competent to siun said note no a surety, and that he ^"mníety ’«nd not as a prin-«^demurrer”*</p>

<p>Error to the Hardin Circuit; Paul I..Booker, Judge.</p> <p> Interest. Deputy Sheriff. Declaration. Averment. </p> <p>Case 139.</p>

<p>Law rg^ duceinto one nil the exeeu-*j°" :,a.w® r.^nt^d the prior law facfniexecu' ¡jPn ‘t0P ie°„* until the expi-™tiu“ of teIj oMernTat11 which (he judgment was [hat^proMbi. tion was not revived until January 1829.</p>

<p>Decía ation sets out “that def’t. was indebted to far^sumV money, and subsequently, Üon therto?” promised to pay the pl’tff. móneVañd°a horse” but does not aver that plaintiff accepted the charge of the larger, deci-ged>t*’atsuolj necessarily follows from theaffirmanoe qUeni con-6' tract by suing uPon >t and renders an averment ofit useIess-</p> <p>Party may in-his i^mi^aken* or has not ’ told the truth, cannot81'after introducing him, iinpeimh hn credibility by other wit-ne«se*.</p>

<p>After def’t. and demurred to the ation, error to abate the suit a return of nonest</p>

<p>a wh,-jst an officer has ?n execution ága/nst'hhn8 exchangehor-ses with !?8 execution. 6</p> <p>Plaintiff sues as an infant, defendant (nut contesting his infancy) pleads the general issue, if infancy of plaintiff be a link in chain of proof, necessary to make out his title, he must prove it.</p>

<p>Error to the Montgomery Circuit; Silas W. Robbins, Judge</p> <p> Appearance. Judgments ex parte. </p> <p>Appeal.</p> <p>Case 145.</p>

<p>'aocoTüTiN— the practice the British we]¡ as sinae a demurrer to of[or want tjesTslufuld”* i,tate specially the cause of</p> <p>to abill for want of proper par-gieesc™aí]1 cause of demurrer, or, at a] ¿emun-e/tó a bill shall be sustained for pariief, the bill there, foredismissed, j^ust b out prejudice.</p>

<p>Decree,which directs prop-hands'ofan administrator taken to *° satisfy the de-faleation of mi^istrator8U erroneous. ’</p> <p>When there a<l-bounTin the same bond, ea°b is liable uteaTfor'the* acta of the other.</p> <p>Hire or profits of slaves accruing while trator «tains (and has gal right to arfasscts, and security of administrator is, ponslble^or6'" thein.</p> <p>Slaves vest in the executor toga's'chat-' tels.</p> <p>Title of an heir to slaves píete without exeeTtofof administrator Devisee's title to slaves is compee asSentof the executor,</p> <p>Compl’t will j^chancehor recovering from others a sum of money he will be bound tore-fu0lJ.</p> <p>wiH of a feme covert is void, “"jes.8 exficu' anceo/'iT511" power conferred by some oiMiéed3</p>

<p>After a party has been sworn and examined and under that examination made statements which entitle him to a continuance, it is error to force him into trial merely because he refuses to throw those state-men tsinto the form of a written affidavit.</p>

<p>Error to the Warren Circuit; Henry Broadnax, Judge.</p> <p> Party. Guardian ad litem. </p> <p>Chancery .</p> <p>Casa 149.</p>

<p>Case isan appropriate ac-landlord^or & causing “naa* of his tenant.</p> <p>Distress for rent due in property, is not authorized by law.</p>

<p>Trespass against A and B, process is served on A within county in which suit is instituted, but is served onB in another county, there is a verdict and judgment in favor of A, but a verdict and judgment against B, (by-default,) in such case, the Judgment, against B is erroneous, for want of jurisdiction.</p>

<p>Error to the Knox circuit; Joseph Eve, Judge.</p> <p>Sheriffs. Execution. Motions. Pleadings.</p> <p>Motion.</p> <p>Case 152.</p>

<p>Error to the Green Circuit; Benj. Monroe, Judge.</p> <p> Guardian. Settlement. </p> <p>Chancery.</p> <p>Case 153.</p>

<p>The ^ ^ s (¡on of aot uf 1796 (I. Dig. to^^r'and braces all trusts whether cfaredby deed or resulting fromexecuto-ry contracts. Of an equity or use resulting by implication of law from an exe-cutory contract, held by husband at some period during the coverture and transfered by him in his life time, wife is not dowable. To entitle wife to dower of land in which husband bad only an equitable estate (by holding a title bond and having paid all of the purchase money,) husband must be owner of the title bond at his death.</p> <p>Assignment (by husband in his life time,) of a title bond for land, divests wife of her right to dower in the land.</p> <p>The 14th seel tion of act of 3^5^ ^relati^é to doJerVnd curtesy, em-traces no im-excepfsuoh as husband ^/his^ealk?</p>

<p>Error to the Woodford circuit; Wm. L. Kelly, Judge.</p> <p> Assumpsit. Bailee. Interest. </p> <p>Assumpsit.</p> <p>Case 154*</p>

<p>Error to tho Bourbon circuit; Richard French, Judge.</p> <p> Champerty and maintenance. Voluntary conveyances. Construction. </p> <p>Ejectment.</p> <p>Case 156.</p>

<p>Error to the Jessamine county court.</p> <p> Bastardy. Jury. </p> <p>bastard*.</p> <p>Case 157.</p>

<p>Error to the Mason Circuit; We. P. Kopek, Judge.</p> <p>Dower, writ of. Damages. Dower, judgment for. Count. Seizin, writ of.</p> <p>■Dower .</p> <p>•Case 158.</p>

<p>Court of ooun-ifÜ'testate're-sides at his death, has ju-"a’fa°dml istration on „otwithstana. ing hisperson-alty lies, at *11S ^eath>in ty.° ^ C°UP</p> <p>Since act of Je'uh'Saves to'passby last wills and tes-laments as executor h’aT no title in or power over a slave which is specifically</p> <p>the d®0"a nat vest executor with a”y g]0ayes orwith any authority t0 control the hira should executor rent the land or hire out the slaves bis sureties will not be responsible for rent or hire.</p> <p>When land or slaves pass to the devisees directly and without assent of executor, he has no more right to take possession of them or of their rents or hire than a stranger.</p> <p>Pact, that will authori-“to divide’?* land & slaves equally a- _ Mcj^does^not vest him with any title to slaves"norr does it confer on him any o^Frethem1</p> <p>will vests executors with no land'or flaves and they med die with them lJu^orhfring outthe slaves, each executor ly responsible lor his own aots in respect to the land & slaves, & not for those of his co-executor.</p> <p>When will does not vest executor with any title to or control over the slaves and he gives or transfers them to persona not entitled to them, hisitireties are not responsible (to the devi-see) for value of the slaves, Sale ofa slave tor ^whenthé «lave is spe-cifioally devi-dive8t°ithe°ti-tie of devisee,</p> <p>For pecunia-T legacies or chatties °f ities ofexecu-tors arelia-</p> <p>slave (since * act of 1800) °Perates as an veyance of*' the slave to the devisee,</p>

<p>Before county court make an'order binding out a '■•poor child” as an apprentice notice of the proceeding must be given to parent or next friend:</p> <p>County court have no jurisdiction to bind out, as • apprentice, a poor child who resides out of the county.</p> <p>Person to whom a poor child is, by order county court, bound apprentice, will be deemed a party to the proceeding in the county court and the proper person to be made def’t to a writ of error to reverse the order.</p>

<p>Pl’tf in exe outionmoves against sheriff for failure of réturn^execution within time&obtains ialnsThkn," courtof Ap-ipeals reverse on6 round6nt that “there execution and turn wa^de-puty of the principal sher was no evidence shewing that the person who held up the iff, against whom the mo-mad J^and 'n obedience to that decision the inferior led tion;the de-cisión of the 'ltd>ement ofd inferior court in conformity noTsucba 18 '■'■decision upon the substantial merits of the chief ” as to bar a subse•quent motion, withlnayear.</p>

<p>Error to the Casey county court.</p> <p>Collector of county levy. Sureties. Motion,</p> <p>Mono».</p> <p>Case 163.</p>

<p>Landlord cannot maintain a warrant of forcible entry or detainer against a dis-seizor of his tenant.</p> <p>When a tenant is dissei-zed, he alone, and not the landlord, is entitled to a warrant of forcible entry or detainer against the disseizor.</p>

<p>lna «lit on a whhih^oblwor acknowledges the receipt of bankynote'& promises to account for it mocP^deci-ded, that lapse of nine date^of the1 writin»- oon-nected with onfthe trial’ producethe bank note or iiad'Vbeooroe of it, authorized jury to notetlwas>ank good and that def’t. had converted it to hia own Use,</p>

<p>of a motion, by apprentice to be discharged from his service, the master must have notice.</p>

<p>when the judgment ap-pes,rs t0 ¡lav® on ¿efau]t & the record process was ever served on ^^ent will be reversed, Covenant “to s arte¿t (for covenantee) 100 acres of ,^nd on Huf* the^watenfof Big Sandy” is not> in consequence of its generality or</p> <p>Covenant ‘‘to survey & patent (for cove-nantee) 100 acres of land on Hurricane creek, the waters of Big Sandy” is not a contract for the sale of land; nor is it within the statute of frauds and perjuries.</p> <p>saie oí icuiu our statute of frauds requires, only ting contain1" ise^andiñ this’respect, differs from Charles°f which requir-meut”'to^e8 in writing, When contract is for</p>

<p>ding^lnferior" court has refused a new trial and the record does not contain the whole of the evidence given on the tria], yet if it appear that improper evidence was admitted, the appellate court will award a new-trial .</p> <p>Vendee who enters upon land under an executory contract and afterwards sues upon his title bond and obtains satisfaction, is es-topped (on ejectment brought against him by vendor) tode-ny vendor’s title.</p>

<p>Error to the Franklin Circuit, Samuel Todd, Judge.</p> <p> Appeal from a Justice. Mon-suit. Execution. </p> <p>a^eal.</p> <p>Case 168.</p>

<p>Appeal from the Madison. Circuit; Richard French Judge.</p> <p> Partners. Partnership. Evidence. </p> <p>Chancery .</p> <p>Case 169.</p>

<p>.Court of Appeals has app~^]ate jnris.1 diction over prosecutions {jatterfes^be* causethe’pun-ishment, in hucheases,is fine only ••</p> <p>At common ^ots, routs, unlawful as-gne prisonment.</p> <p>óf jwe0 ,fr ^0sr° persons in some public °f 16 others,</p> <p>An assault or batter^how-' ever private orsecret, is an of'</p> <p>In an indictment for an assault & battery, it is not necessary to allege that the assault or battery was committed in public, or to the terror of any of the cit-zens of the Commonwealth.</p>

<p>Error to the Anderson Circuit; Samuel Todd Judge.</p> <p>Court of appeals. Criminal proceedings. Jurisdiction. Riots, routs, and unlawful assemblies.</p> <p>indictment.</p> <p>Case 171.</p>

<p>Er/or to the Anderson circuit; Samuel Todd, Judge.</p> <p> 'Scire facias. Recognizance. Averment. Authority. </p> <p>Scire facia,</p> <p>Case 172.</p>

<p>BjI1 .. ven_ dee for recis-fon of contract) points out particular defects in vendor’s title but does not suggest that there are probably any others, the defects pointed out are proved to be visionary, veudor shews an uninterrup ted possession for near thirty years but does not make out clearly a connected title from the Commonw’th, decided, that vendee is not entitled to a recision.</p>

<p>Error to the Franklin Circuit; Samuel Todd, Judge.</p> <p> Scire facias, amendment of Costs, judgment for. </p> <p>scire facias.</p> <p>Case 374.</p>

<p>Error to the Mercer Circuit; William L. Keli.v, Judge.</p> <p> Executor. Debtor or creditor appointed executor. </p> <p>Coven ant»-</p> <p>Case 175.</p>

<p>Error to the Jefferson Circuit; Henry Pirtle, Judge.</p> <p> Assignment, proof of. </p> <p>Chancery.</p> <p>Case 176.</p>

<p>Error to the General court; Daniel Mayes, Judge.</p> <p> Scire Facias. Replevin bonds. </p> <p>Scire facias.</p> <p>Case 177.</p>

<p>Error to the Ferry Circuit; Joseph Eve, Judge.</p> <p>Sheriff and deputy Sheriff. Declaration. Averment. Office, sale of. Evidence,</p> <p>Debí1.</p> <p>Case 178’<</p>

<p>On dissolution j¿ent nue for a slave terror to endamages on the value oí</p> <p>¡^injurie™ tiontoajudgment in deti-can be properly decreed, Sonhe® ' action of det °"s adjudged for detention.</p>

<p>jn a sujt {n name of the Commonw’th. for use of ad. mjnistrator of a deputy sher-sheriff au<1 13 sure' ties, averment, in declaration, that sheriff received from pl’lf. as the administrator of the late deputy sheriff and collector of the county “a certain list of taxes, levies, bills k fees due to the collector of the county,'1'1 & promised to collect & account for them, but that he totally failed to collect or account for them or any part of them, does not shew such a breach of sheriff’s bond as to subject b¡3 sureties to damages.</p> <p>Before there is a cause of action against the sureties of a sheriff it must appear that sheriff has failed to do something which the law made it his duty to do, or has done something which was contrary to his official duty.</p>

<p>„ „ , Def’t. has two counse] one of whom accepts ajnror objects^ohim inadvertently hpwever, the juror is accepted, butbefore he is sworn to try the issue, both of deft’s, counsel peremptorily challenge him, thecourt refuse to permit the challenge, decided, that court erred.</p> <p>The notice is to take depositions on first of October, the depositions are actually' taken oil second of October, but in preambleof the depositions it is stated that they were taken on the second by consent of the agent and attorney in fact of the party-notified, decided, that inasmuch as magistrate, before whom depositions were taken, had no power to certify as to any consent of the parties or as to any agency, therefore there was no proof that the depositions had been taken on the second by con sent of an au-thorised agent and conse-quentlyshould not be read.</p>

<p>On a note for $150 “current “u°cby”°obH-n gee obtains a .judgment for gorTnioins on ground that consideration Commonwth’s banlc notes & that it was drawn for _ 'take, on the hearing of the case, it appears that ob-ligee was al-tcfacoe'it*11*’ Common’th’s. banknotes in discharge of had never,aby execution or otherwise, témpted toco-erce more than she was that^obligo* had never offered to pay in Commonwealth’s bank notes,decided lief ^ obligor" can obtain is the privilege of paying the amountofthe judgment m iankofthe VommonwHh.</p>

<p>When a fee bill, which isty,isquashed, the record ^tthe^rt paicUha fee bill resided wMch^he"11 judgment of quashal was rendere •</p>

<p>Appeal from the Todd circuit; Graham, Judge.</p> <p> Mortgage, foreclosure of. </p> <p>chancery.</p> <p>Case 184.</p>