Volume 3 — Kentucky Reports

<p>In (Vitsin chancery for land, if the complainant rcovers partof the ¡and in con-troverfy, he fhould,in general, recover full colts.</p> <p>In lucha cafe if there have beeri an injunction, the court ift their final decree fhoüld dif* fohre the injunction as to ihe part not recovered by the complainant, 8c permit theplain-tilTin the ejedtment to recover his full coils at law;</p>

<p>It ia in the dif-cretion of the court to foe or nor to foe a ftie-fiff for not returning anexe* cutioti»</p>

<p>A variance between the writ and declaration in debt as to the fum declared h r is cured by the aft oh jeofails-— See aces of 1796 -7, 24, i ⅜ I Brad. 22b.</p> <p>A jud^mv-nc *or intereft is erroneous ir’ it do n. t ftate the rate oh the intereft recovered.</p> <p>The cierk Is not author lt d to calculate inte reft on ft glr bills in puriu-anee oh the art of 1799» ch. 17, § 2, p 41, it the Tingle bill were given pri- or to that art, but the meieil ihoi.Jd be found by a jury.</p>

PAYTON brought a suit in the Danville district court against Lighfoot, in debt, for 60/. and declared on two separate bonds for 30/. each., judgment was rendered by default for the plaintiff in the Lincoln circuit court, to which the cause was transfered on the change of the judiciary system. On a writ .of error, being proSeCUted

<p>SEARCE, as assignee of Dudley Mitchum, brought a suit against Pemberton, &c. on a penal bond, dated the 23rd day of April, 1802, T he penalty was for 455/. 16s. “to be paid on or before the first day' of next June.” The condition was for the payment of 227/. 18s. on before the first day of J une next.</p> <p>The plaintiff declared on the penalty in the usual manner, except that it alleged that the said sum of 455/. 16í. was to be paid “- whenever they should be thereunto required,”</p> <p>The defendants did not plead to the action ; :but on a writ of inquiry being executed, in which one penny damage was assessed, judgment was entered for 455/, 16s. the debt in the declaration-mentioned, and costs ; but the judgment to be discharged by the payment of.227/, 8s. with interest, &c. ,</p> <p>An execution issued on this judgment for. 455/. 1(⅛., and costs, “ which William Scarce late in our Franklin circuit court recovered,” &c. endorsed that it w?is .to be, discharged by the payment of 227/., 18s. with interest» &c. by virtue of which a replevy bond was taken,</p> <p>A writ of error was prosecuted, and it was assigned for error that there was a variance between the dedaration and bond as to the time when the penalty was payable — that there was a variance between the judgment and execution, the judgment being entered to be discharged by 2271. 8s. and the execution by 2271. 18s. — 5 and that the execution was defective in not reciting that Searce was assignee of Dudley Mitchum. Thp following was</p>

<p>A re levy bond given by one de-ten iem with ;e-curity, on an execution a-gainfi; is erroneous;</p> <p>The pldíi.iiíF’s iuing ou: executions on fuch replevy bond,& thereby making part of the money, does not preclude hirri from afterwards having fuch. bond quaihed Qa his motion.</p> <p>On q.uihing bond th* court ought not t0 vacate the Ríes or property made und=r flc-’editions timed on fuch replevy bond.</p>

HAMILTON issued his capias against Murray, and on a return “ a copy left,” took out an attachment, which was levied on a lot in South Frankfort ; on that return Hamilton proceeded and obtained judgment in the court below.

<p>⅛⅛⅛ to beenteied on moiion for the breachofacon-tracb thereJtt« mane tor the parent ot mo. ney, is not lin-“nftitutionai. flkutionai nor illegal to enter judgment m out;a jury? the defendant not havlng apPear-defence.</p>

<p>. pears from the tranfadions of the par ies to intention of one to !ei.d,& of the ether to lectre by delivering property to the ihounts mortgage.</p> <p>The equitable rule in redeeming when the mortgagee is in pi’flWHyn, is col charge the profits of the mu. t-gaged property againft principal and inte reft. The mortgagor fhould on redeeming pay al|. tquirab.easweli as le¿a¿ demands He ih-uld therefore pay ali fmthe# advances made by the monga* gee to him, inhere ft thereon. An agreement to fet the hire of a regro matt Wurth »2/. pee year agamft rhe inteieftof 125/. is so far void as to let in the borrower to releen» the property 0» the aboveterms* but it does noc vitiate thewhclcr contra#.</p> <p>A chancellor may itx the va - lue ot property i unlefs hedoubt» it is notnecelfc-ry for him t® dire# an ifiW to afeertain the value.</p> <p>On a bill to re* deem it ia erroneous to decreet the mortgaged property co he given up before the fum due to the mortgage© is paid or ten*</p>

<p>In an aaion on a penal bill the <houid&owthat the defendant did not pay the the d" '(Túfi*</p>

<p>After a writ of tedU and Cjudg-bT"rerated'on account r0t the writ being tui-nabie^to the 3rd day2 of the iiext term.</p> <p>Jn declaring on contracts for the ccnveyance of land, it is not necefTary to allege a demand at the defendant's place of residence j nor that the plain, tiff had the land laid off or attended on the defendant to fee it done,</p> <p>A bond for the conveyance of land is affigna-ble j & the af-fignee may maintain an action thereon in his own name. In declaiing on an affigned obligation, the allegation thatc before the defen-danc complied it'was a'-figned, ⅛ tanta, mount^o a^5rn"en"of "the" breach that the covenant was not fke °affigno^lth</p> <p>S. P Reeding •vt.Hickman, Pr. Dec. 254 — See alfo Hubble vs, Muilan£hy,f>oji%</p> <p>§⅜ ⅛ ¿j¡ 17^6-7, r. $ 28, i Brad^ 227 — -a^s of 1700; ch. a8, ⅝ 7> P* 5&</p> <p>In declaring on a central for ike confiyar.ee of lard on i.tmana, a demand Jbould be prc-'ijely al-legui in yoint of -tmie and place.</p>

’ ON the 3rd day of February, 1781, Stephen Trigg had a survey made for 900 acres, on a treasury warrant —^jj- was run to the cardinal points, and its western boun- . , n ⅛ / d&ry WHS 260 poies lotlg* , On the 18th day of June, 1782, John Cobb entered gooO acres of land on a treasury warrant, “ to adjoin 5.

GREENUP and Keene were complainants below, and derived title to tjie land in dispute under the following certificate : £ At a court continued and held for the county of Fayette, on Wednesday the 11th day of May 1785 — - Application and satisfactory proof being made, this court doth certify, that William Ballard is entitled to the pre-temptipn of 1Ó00 acres of land lying on the waters of the south fork of Elkhorn, beginning at two ashes and sugar tree corper to an old…

<p> uuKUunt°n >n* > </p>

<p>After an of* fice judgment it if too late to object to the wrk for a blank therein.</p> <p>If a circuit court improper* ly remand a caufe to the rules, a ñianda-mus iVili lie to compel them to retaliate the caute on the if-fue docket, and proceed to trial*</p>

SULLIVAN brought an action of assumpsit against Campbell’s executors. They pleaded nsn assumpsit and the statute of limitations ; on which issues were made Up. On the trial a special verdict was found which left to the decision of the court, whether the will of Camp-belltook the case out of the statute of limitations.

<p>M’CASTLAND exhibited his bill in chancery in the Danville district court against Troxwell and M’Der-med, in which he stated the following facts :</p> <p>On the 7th day of December, 1797, Troxwell by his penal bond bound himself, in substance, to make such an improvement as the act of assembly required, on such tract Df land as M’Castland should show. Troxwell was to do every act necessary to obtain a certificate and patent, and then convey the land to M’Castland. M’-Castland paid a valuable consideration to Troxwell for said agreement} and further agreed to advance the money necessary for defraying all the expenses in procuring a title. M’Castland made choice of a spot of land, and showed it to Troxwell, who duly improved it, and obtained a certificate therefor; but in violation of his agreement, assigned the certificate to M’Dermed, and absconded. M’Dermedhad notice ofM’Castland’s contract with Troxwell; but was proceeding, by virtue of the certificate so assigned, to procure for himself a title to said land. M’Castland paid, or tendered, all the money he was bound to pay under his contract with Trox-well. The bill prayed for a specific execution of the contract.</p> <p>M’Dermed by his,answer put the complainant upon, the proof of the allegations in his bill.</p> <p>Troxwell did not answer, and the bill was taken for confessed against him.</p> <p>The inferior court were of opinion that the evidence supported the bill, and decreed in fayor of the complainant.</p> <p>From this decree M’Dermed took an appeal.</p>

<p>An equitable-intereft in lands by execution for the payment of «h, 22, V*9*-</p> <p>An entry or ⅞ inchoate pal title, and jnay be fold by execution.</p>

<p>See cafe.</p> <p>Aftsofi 6 p. 6^° íj739Sj p’ 118, § 19, 1 í^a£bof’i8oi’</p>

THESE were two writs of error brought to reverse a decree given by the Fayette court of quarter sessions in the same cause ; but in which the interest of the several parties were distinct.

<p>/\ NOTICE was given to M’Clelland that on the first day of the next term of the general court in the year —:— a motion would be made against him, as sheriff of Shelby, tor not paying mto the treasury the re-: venue tax collected by him for the year--.</p> <p>No court was formed on the first dav of said term, a • « ’ sufficient number oi judges not attending. On the second day a court was formed ; the motion proceeded in ; an(A judgment entered against M’Cleliand. On a sub - sequent day of the term, on M’Clelland’s motion, the judgment Was set aside, on the ground that the notice fiejn„ t0 the first day of the term, and not entered or continued on that day, it could not be taken up aiter-wards.</p> <p>TIie attorney-general, Blair, filed a bill of exceptions to the opinion of the court setting aside the judgment, and took an appeal.</p>

<p>Locative call in an entry not fhfficiently ef-fiabliihecL</p>

POPE covenanted amongst other things to pay Campbell “ a good, sound, healthy negro boy and girl between 10 and 14 years of age, on or before the 10th day of April 1801, Suit was bronght on this contract and judgment entered by default, and a jury sworn to inquire of damage On executing the writ of inquiry in the general court, the defendant by his attorney moved the court to instruct the jury and parties to confine their inquiries as to this part of the contract, to the…

<p>An improvement where a crop of corn has been railed is frefumed to have acquired a rCafonáble dc-gr&e of notoriety-</p> <p>A call in a pre-emptionen-try to adjoin the land of J. B. when J. B. had a fettle-jnent and preemption,butthe pre -emption not enteredwith the furveyor, is not a good call — — ¿tyere, and fee Crow's heirs vs. Ilarfod's heirs, fcji and Craig «i/s, Ma-(bir, fall term l8o8, contra.</p> <p>A call in a certificate for fettlement for the land of S, G, when S. G. had not then obtained a certificate, is nota good call*</p>

<p>An enr for 20,000 acres, which calls to exclude a ful claims and entries in the ⅛⅛⅛° ’thfC" names but not the quantity of of^r^hM held byeach pmprietor) “amount-entry as to so, ooo acres.</p>

TALBOT brought an ejectment in the general com t against Callaway.

<p>If an alignment on a land warrant be forged and land fe-cured u-'-der it, the proprietor of the warrant is, upon paying the expeutes of clearing cut the land, entitled to if againft the af-fignee and thofe claiming under him who received notice of the proprietor** claim before they completed their legal title.</p> <p>A verbal communication by a ftranger to a purchafer be-f* re he receive* a conveyance— that A, B. hath A, B’s equity. § claim to the land — is a Cufficient notice to charge the purchafer with</p>

DUNLAP’S devisees filed their bill in the Lexington district court against the heirs of M’Connell; alleging that on the first day of January 1780, their testator purchased of the ancestor of the defendants a particular tract of 500 acres of land in the forks of Elkhorn, and paid the principal part of the consideration, and secured the residue to be paid : that M’Connell agreed that if any of the Elkhorn land should be lost, he would give as much as was lost out of his land…

AN action of debt was brought in the Fayette circuit court by Shepherd against Russell, on a note of hand dated the 9th day of December 1796, for the payment of ¿49 5 11, “ lawful money pf Pennsylvania.” The defendant put in the plea of nil debit. The jury found for the plaintiff the debt in the declaration men-|ioned, and one penny in damages.

<p>ALLEN sued.out his original capias from the office of the clerk of the court of quarter sessions for Logan county, against Irons, in an action on the case. The sheriff returned The defendant is not found.” On which return an attachment issued. The sheriff returned on it “ Levied on one handkerchief, shewn me as the property of the defendant.”</p> <p>A judgment by default was rendered against the defendant. To reverse which he prosecuted a writ of error.</p>

THE plaintiff in error brought his action on the case againt the defendant, and declared that in consideration of a horse he sold to the defendant, the defendant as-sumecl to pay him 12/. in carpenters and joiner s wtfrk. Judgment was entered by default against the defendant on the rules.

<p>A judgment on an award is erroneous if the record does not Ihow that the defendant or his agent had notice of the time ©f the meeting of the arbitrators, or that he was prefent when the award was made — See note below.</p> <p>i fef.of 1798 eh. 25, p. 57, 1 Brad. 57.</p>

THIS was a writ of error brought to reverse a judgment of the court of quarter sessions of Gallatin. The return on the original capias was “ A copy left at the last place of residence of defendant on which an attachment issued, and was executed on a bay mare. Judgment was obtained by default; and an execution issued against the defendant, without any disposition being made of the property attached.

<p>Under the ait of 1798, ® ¿rü¿’3£’gf£ fecundes « fummary remi-1 ^ luch defence mined b» party cou)d have made in a mand,</p>

FRANCIS purchased a tract of land of Hazlerigg, Pa’d Part consideration^ and gave his bonds^ with Niblic his security, for the payment of the balance; A conveyance of said land was not made to Francis, ^ut die ⅛31 title descended to Hazlerigg’s heirs on his death.

<p>See cafe.</p> <p>A£ts ofl7,?6 7 x' Bra°.’ 35a— a£is of 1800, ch. p. ⅞6.</p>

<p>THIS writ of error was brought to reverse a judg-r „, . . ° ■ r , J . ? ment of Mason circuit court, m an action tor a deceit in the exchange of horses. The declaratiftn stated, that on making the exchange, Baldwin, the defendant below, represented the horse tobe sound, and then averred that the horse was not sound.</p> <p>A bill of exceptions filed by Baldwin, stated that a witness introduced by West was sworn on his voire doire, and on being questioned by the court whether he was interested in the event of the suit, said he was not. Baldwin’s counsel then offered to ask the witness questions as to the detail of the transaction, to shew that he was interested, and therefore not competent. But the .. .. , , r , -1 , , , , j court was or opinion tnat after the witness had declared on oath that he was not interested in the event of the suit, it was not proper to ask questions of that kind ; and refused to permit them to be asked, but directed the witness to be sworn in chief,</p> <p>A verdict and judgment was rendered for West for j tliUYlUg'CS»</p>

<p>r declarad™ of emancipation ^ave’ gt) "cannot'"^ enforced in a Cüup»f law or eqtt'tjr‘</p>

<p>An entry vague by a defect in general defcrip'tion.</p>

<p>ON the 16th day of August 1796, Daniel sold 1000 acres of land to Pile and Reuben and John M’Andree for IS 500, to be paid in horses, It was agreed that if in two years any “prior or better claim” to the land should be discovered, that Daniel should re-pay the consideration. If none was discovered in that time, the purchasers were to risk the title,</p> <p>On the 20th of March 1798, Daniel and wife conveyed the land by deed with special warranty-to the chasers. On the same day they executed to Daniel their release on said deed, as follo ws : “ We hereby acknowledge ourselves fully s-atisned and contented with the title and claim that the within named Thomas Daniel has conveyed to us for the lands mentioned in the whhin conveyance ; have only purchased his right thereto, and accordingly by these presents do exonerate the said Thomas Daniei and his heirs, from and after the 16th day of August next, from all claim and demand, actions and causes of action that may accrue between us and our heirs, in case the said land, or any part thereof, shall be recovered from us, our heirs or assigns, by any person or persons having a better title to the same than what the said Thomas Daniel has conveyed to us by the, within instrument.”</p> <p>Daniel having received a part of the horses called for in the bond of Pile and the M’Andrees, transfered the balance to Meriwether. At Meriwether’s request that bond was, in 1798, taken in by Pile, and a bond given by Pile to Meriwether for a negro of a certain description, in lieu of the balance.</p> <p>Meriwether assigned this latter bond to Shannon; and it not being complied with, Shannon commenced suit and recovered judgment thereon.</p> <p>Subsequent to the giving this bond, Lynch setup a claim to half of the land, by contract under John May, the locator. In consequence of which Pile filed his bill against Daniel, Meriwether and Shannon, for and injunction, and for general relief.</p> <p>Daniel in his answer relied upon the release. Meri-wether and Shannon further insisted that if there was any equity against Daniel, it could not extend to them. There was no charge of intentional fraud, relative to any part of the transaction, made by either of the parties. The general court dismissed the bill with costs.</p> <p>Pile brought his writ of error ; and at the spring term 1805, the following opinion and decree was delivered :— From the exhibits and proofs in this cause, it appears that Charles Lynch claims one half of the land sold by the defendant, Thomas Daniel, to the complainant and John and Reuben M’Andree ; and should that claim be sustained, that they will lose so much of the land. This claim set up by Lynch, is for the locator’s proportion of that land, and not an original adverse right derived under the land laws of Virginia. It is not pretended by the defendant, Daniel, that before or at the time of making the contract, any information was given to the complainant and his partners, that the land was subject to * claim of this kind ; and therefore the release filed and relied on by him, cannot avail him in his defencs ; for it is rationally to be inferred that the intention of that release, notwithstanding the general wording thereof, was to relinquish all claim, demand, actions, or causes of action, in case the land should be taken or recovered by any person having a better adverse claim, originating under the land laws of V irginia. And if Daniel, at the time of the sale, knew of the locator’s claim, and did not disclose it, he was guilty of a fraud, against which, the complainant ought to be relieved. And if it was not then known, there has been a misrepresentation ; and although it may have arisen from the want of knowledge, the injury to the complainant may be as great as if it had arisen from fraud.* If then, the bond which is the* foundation of this controversy, had remained in Daniel’s hands, there is no doubt he could not in equity and justice, have enforced the payment. What difference will the assignment and exchange of the bond make in this equity. If the bond given by Pile to Daniel, and assigned to Meriwether, had been sued on, from the repeated and established decisions in courts of equity, the assignee is subjected to all the equity which was attached to the assignor. And the exchange or removal of the bond to Meriwether, which was done at his request, can make no difference ; for otherwise, it would be countenancing a mere shift and contrivance to evade the equity to which Pile was entitled.</p> <p>The decree of the general court, in dissolving the injunction and dismissing the complainant’s bill, is, for the foregoing reasons, deemed erroneous, and must be reversed with costs. The cause to be remanded to the general court, with directions to reinstate the suit and continue the injunction, until the claim of Lynch can be investigated upon a bill of interpleader, which the said court shall direct to he filed by the proper parties, or direct such other mode of proceeding as may be deemed proper to ascertain and determine the said Lynch’s right.</p> <p>A re-hearing was granted, and the cause again argued, and the following opinion delivered this term</p>

<p>The beginning called for in an entry conftrued to meanthecen-tre of the fur-vey.</p>

<p>^ not inherit land in this com-</p>

<p>See ^</p> <p>AQs ft fef I79g,eb. i»,p" 37,«B«d. 37.</p> <p>⅜,</p>

<p>CALDWELL, in September 1800, being about to erect a mill in Woodford, applied to the court of that county and procured a writ of ad quod damnum. The jurors returned their inquest to the October court in said year, and the conrt then gave leave to erect the mill. But the sheriff omitted to endorse any return on the writ of ad quod damnum.</p> <p>A writ of error was sued out by Gay.</p> <p>At the county court for Woodford held in May 1805, and during the pendency of the writ of error in this court, and after the term of service of the sheriff of 1800 had expired, IJarman Bowmar, the deputy sheriff who then acted, obtained leave to insert his return on said writ, it appearing to the court that the return was omitted by mistake,” and then made his return the,reon. This proceeding was brought Up by certiorari. The following opinion will show the other points made in the eause.</p>

<p>See cafe*</p> <p>See 5 Bac. (GuU*ed.)432, a£ts of 1796-7, p. 24, § 28, 1 Brad. 226, aéls of 1799,0b. ⅜ 7» p- &</p>

AN attachment was obtained Irom a justice of the peace by''Üavís against Shipp. It stated, “ That the said John Shipp hath privately removed himself out of this county ; or so absconds and conceals himself that the ordinary process Of law cannot be served on him.” A judgment was given on this attachment for the plaintiff. Shipp brought this writ of error to reverse that judgment.

<p>A pIea t0 ^ attachment that llie fcfcn&nt ^."orAamhe attached effeíts wete not tile good after a plea totheaition;</p>

<p>LITTELL, a resident of Fleming county, gave his note in said county to Robinson, aíso a resident of that COunty, for jj? 150, payable at a future day. Before the note became due, Littell removed to Montgomery, and continued to reside there until áftty the commencement Gf tRjs SUR. Robinson assigned the note, before it was payable, to Nichols, who then wás, and continued until his death, a resident of Mason; and his administrators then were, and still are residents of that county,</p> <p>Suit was brought oh this note in Fleming, and the defendant held to bail in that county. The inoney not Rav;ng been in fact demanded there, ñor a capias issued against the defendant in Montgomery. Littell gave special bail, and regularly filed a plea in abatement on' the rules, stating that at the commencement of the action he was a resident of Montgomery county — that the cause of action did not accrue to the plaintiffs in Fleming, and that ¿Rey “ had not issued and had returned non inventus, a capias against him in the county of Montgomery.”</p> <p>"The plaintiffs replied that the cause of action did accrue [n Fleming, on which issue was joined. The facts before stated were agreed, and the cause referred to the court without a jury. That court gave judgment for the plaintiff. A writ of error was prosecuted.</p> <p>This cause depends upon the construction of the seventh section of the act of 1796-7, concerning quarter session courts ; which, au-thorises a defendant to be held to bail in the county where the cause of action accrues. In construing this statute, we must distinguish between the foundation of an action and the cause of action. Every legitimate contract, and every penal law, may be the foundation of an action ; but there is no cause of action, without a breach. of the one, or a violation of the other.</p> <p>That the. cause of action accrues on the breach of contract, and not by making the contract, is conclusively exemplified by a familiar case. A promise is made to pay a sum of money on the happening of a contingency ; that contingency happens, and the suit is brought more than five years after making the contract, but within less after the happening of the contingency ; the statute of limitations will not bar the demand ; because the cause of action accrued within five years, is the language of every judge before whom such a.case has ever come.</p> <p>That I am. correct in my position that the breach of contract is the cause of action, I rely upon the following authorities’: 1 Bac. Ab. (Gwil. ed.) 60 — 2 Salk. 669— Carthew 114, 216 — .1 Ld. Raym. 515, 621 — 1 Com. Rep. 205 — 2 Stra. 719, 867, 1160 — 2 Ld. Raym. 795, 838 — 2 Bl. Rep. 528, 563, 794, 796 — \ Dallas 461 — 3 Dallas 220 — 3 Lawyer’s Magazine 566.</p> <p>The next question is, to what place does breach.of contract attach ; or in what county did the breach take place ? The answer is obvious : in that county where the contract should have been performed — See 1 Bac. Ab. (Gwil. ed.) 60-^ — 2 Salk. 669 — 1 Salk. 251.</p> <p>It is too well settled to be now questioned, that it is the duty of the debtor who.owes money to seek his creditor wherever he may be in the kingdom, in Britain, (say in the state, with us) and pay the debt; and if the law has made the debt assignable, as it is in the present case ; as soon. as the debt is assigned, and notice given to the debtor, the assignee, instead .of the obligee, becomes the creditor, and is clothed with all his rights. A payment ®r tender of payment to the obligee after assignment and notice, would be a nullity. The residence of the creditor *s therefore the place where the law has fixed for the performance of money contracts, where the parties have not themselves fixed upon some other ; and a tender at the residence of the creditor would be good.</p> <p>When the parties have made a contract and left the law to fix the place of performance, all the consequences, as to place, attach to that spot, which would have attached to it it it had been ascertained by their express agreement.</p> <p>The cause of action therefore accrued, in this instance, in the county of Mason, in which the creditor resided.</p> <p>The British doctrine of venue is not analogous to the case in question ; because the statute of Richard II, on which it is founded, directed that all actions arising op pontract, should be brought in the county where the contract was made.</p> <p>, If there could be any doubt on this case, the maxim of law, that statutes which go to abridge liberty, shall be strictly construed, would aptly apply and decide it.</p> <p>The cause was argued by Marshall for the defendant. The reporter has not been able to procure a note of his argument. The following was</p>

<p>in a <⅛ a-¡f ⅛ writ bé not ferved on “"[¡jj1™’*' teradifcontinu-anee as to that one.» & proceed t0 judgment a-gamft the other, Omitting to takeany ftei! ga¡nn fuch ac-fendant, is vir-⅛^*/**^ him.</p>

MATSON was the complainant below, and claimed under the following entry: “ February 4th 1783, Richard Masterson, assignee, enters 200 acres of land on two treasury warrants No. 201 and 177, lying on the waters of Huston’s fork — beginning at Mordecai fiord’s north corner on Kennedy’s line, and running northwardly with Kennedy’s line to Cowan’s line, and thence along said line to his north-west comer, and thence westward - ly to adjoin Townsend’s line, and thence south along…

<p>Set-off — fee cafe.</p> <p>Afts of 1796-7 p, 29, § 9, 1 Brad. 233.</p>

<p>In declaring in the name of boniTutT Cr‘3 neceffary to re-a£t of airembly^autho. fignec to fue^n his own name,</p> <p>ti ^be f'd'bt" and the”¡ud»ment in damages,_ a is but a take- and not error.</p> <p>■fth fame be1 ¡n debt^nd the execution in damages.</p> <p>being6 for Ut"iefs than the judgment, is not an defendant can' take advantage bf-</p> <p>not be permitted to avail him» ieifof an erycr his inju-y iC C°</p>

<p>A fieri fiáas cannot iffue for rent, unlefs a íctnmpreviouhfly rendered.</p> <p>An officer aft-ran^o^dfihefs for rent, is au-thorifed to rake Av fonhe^pay-meat of the rent, In cafes reservation ⅛ rent (hall have fceen in money</p> <p>therefote appear ftom the bond *he renTwas're-fervedin money or tobacco.</p>

<p>The ftatutds of jeofails do not cure the omif-fion of a matter without which the plaintiff has no caufe of action.</p> <p>If there bé no certain affirmation to make the declaration traverfable in á partneceflary to be Rated in it, it is not cured after verdict.</p> <p>Therefore, if property is payable on demand,the declaration muft aver a demand at the de-ier. da tit’s refi-dence, or it is fatal.</p> <p>This omiffiotl is not cured by a plea of tender, &e. and verdiil for the plaintiff.</p>

<p>A gemurrer ¡3 a confeffion of thofe matters bie& have been fet tortl1 ⅛ due</p> <p>obligor cannot take advantage of an trait™ between the obligee and hl3 afi>snee-</p> <p>? CrancIl i8o.’</p>

<p>An entry the defcriptive call of which was £S four miles fromLeeiburg” when in h€tthe object called for was ii miles-, held valid in «'onfequence óf the general no-torietyoftheob-called for.</p> <p>An entry calling for the head of a branch held Valid*</p>

<p>rer*icnce of ih; <ieua>r is the P!acewhcrePr°-pertv debts are t0 ¿e diicharg-ed, if the part^jtwes^fix ¿me other,</p> <p>If fuc!l be PalabIc°n a kisnot ne;=f-⅛17 ty tbe f^his^edara! t¡on a demand and «fufal at</p> <p>if the defer. dant were really t0apayW'he ¿odd (hew ic by (pedal plea.</p> <p>leayent°l a declaration che plaintiff mayan a eew oas'</p>

<p>A n a£f ion on tke cafe cannct by the rules of the common law he maintained againft heirs.</p> <p>But fee a£fs of 2 fef. 1792, ch. 22» § 2, p.</p>

<p>If an entry call for furveyi which have not been made three months, but were in fa£t returned to the furveyor’s office, they mufc be proved to have been notorious, or the en-is not valid.</p> <p>Other points as in Key vs. Mat Jon y antejo> which fee*</p>

<p>lithe jury m án a£tion of debt on a fingle bill ini nominal damages,the clerk ihould enter the judgment forche principal debt, with ¡ntereft from the time 'it became due* and the dama* ges — See aífs of 1799,0(1.17, %2,p. 41.</p>

<p>In ajumpp the declaration *a3^la^w^erc ftate¿uti,e mount affumed t0^be Pa‘d; and mages &ou|d * have been laid: tilefe °m‘lT*oni día."16</p> <p>it is error to ®nter judgment gers tharn are lai j in the writ or deOaration.</p> <p>^ not cured bj plaintiff’s ere-ditingtheexcefa tion before wrib of error brought-</p> <p>Where a jury find more damages than are laid in the writ or declaration, the court ihould enter judgment /or the amount of damages laid.</p>

<p>An attachment being a remedy in derogation o f the common law, the ftatute giving this remedy ought to be ftri&ly pur-fued in all its provisions.</p> <p>The attachment ihould run In the name of ihe commonwealth.</p> <p>If the bond does not purfue She ftatute, it is fatal,</p> <p>Wherever a t|^ fait were by c-risinal w*t, ⅛ the party proceed by attach,</p> <p>bond ta. ken faouid be in double thea-mount of the debt, and the intereft then due thereon, or the court cannot on the trial allow fuch intereft*</p>

<p>No!nd!amen, upon a ftatute can be fupport-of fence to have committed U *"</p>

<p>Surve or’s fees which were pay. able in tobacco ate to be rated</p> <p>For fervices done by a fur-•«eyor under an for which the law has not fixed the fees, the court have the power to fix them, and cor-an^overcharge0*</p> <p>A perfon being in thepre-court does not authorife a judgment to be hi'nT'6^oRfe1 he he brought into court by legal means.</p> <p>i Sef. 1792* 3°> § J> ?•</p>

<p>Tranfaitfons & objeftswhich neceflarily con-n'e& themfelves with, and form t part of the general hillory or geographyofthe country, ought to be taken notice of, without particular evidence proving their notoriety.</p> <p>Whenever a place or objtft was known by a particular name before an entry was made, & an cbje& or place Is now ihewn bearing íh" fame name, it is fairly preiuroable that the place or cbjcil now ihewn was in-fended, unlefs by proof or o-thcr circum-ilancesthat pre-.■iiimption is destroyed*</p> <p>An entry de-pendant on de-fcription held valid.</p> <p>It is erroneous fot the court to fix the value of improve-mentsunderthe occupying claimant law.</p> <p>They fhould have it done by ccmmiflioners.</p> <p>If the evicted occupant be in poíTeííion of improvements not made by himfelf, nor thofe claiming under.his title* yerof The'fucl ceisfui claimant Pay forfcch im-^T^ft’ows that the impro-v'r. hadt íu ^ ⅝ )and aa would have entitled hl™ ⅜⅛⅜⅞⅛⅛'.</p>

<p>If property he feieed to fatitfy a fheriff’s fee-bill, the a&iim of replevin is not the proper remedy to try the legality oí the ieizurc.</p>

<p>. At law the plaintiff muit recover on the ftrength of hi* own title,without regard to the weaknef* of the defendant’s.</p> <p>Inequity the complainant muft ihew that he has a good and fuperior equitable right to the thing demanded, before he can wreftthe legal title out of the defendant, whatever were the means by which it was acquired*</p> <p>Where the equity is equal, the law muft prevail.</p> <p>A furvey is no legal appropriation ofland, unlefs it be made in purfu-anee of the entry.</p> <p>Nor does the regiftering it place it in a better fituation.</p> <p>The patent is an appropriation of land.</p> <p>There is no a£fc between the entry and patent which is an appropriation of land.</p> <p>The manner of furveying an entry diredted, which calls to lie on a water courfe and to include an improvement.</p> <p>An entry call* to run a given courfe toa marked corner; the line ihould be run to the corner, though it varies from thecourfe — .See Boj<worth vs* MuxweU9J>oJi.</p> <p>Calls in an entry rejedled, being inconfif-tent with other controling calls.</p> <p>Pre-emption entries are to be compared with their certificates, to fee if there be a deviation therefrom which will de-ftroy their dignity as pre-emptions,</p> <p>If the entry with the fur-veyor on a preemption warrant omit a call contained in its certificate, it cannot be fupplied by taking the certificate an<{ entry together, as is done on fetlement en» tries.</p> <p>But the pre-fumption is, that the pre-emptioner intended to appropriate the fame land called for in his certificate. ualefs a. iion'Te indie a-fed.</p> <p>^ ar(¡ Keene Kenton and Fra-wer> anu lz• -</p>

<p>An entry held deficient in fcriptionj & not aotoriety. *</p>

<p>An entry o-ir.iuing to call tor objeas by names, and tail-ii;g to give a defcnption bf certa;niy be found, is</p> <p>fot a fpr¡„g, Unaid-<fo by ocher 18 uncer"</p> <p>omiffion to call for an by ““ cured by a cor. redi defoription.</p> <p>a cree|t> as * locative call, ⅛</p> <p>cal. i¡rig tor a (urvey which was not “«tonous, nor ta¡i¡ng tu ⅛_ foribe it fo that ot,hf's “’⅝ with reaionable jn{juftry have certainly found m</p> <p>Matjoit,ame 70; and the cafes there cited'</p>

GREEN brought suit against Day, for not perform-jng some carpenter’s work in a workman-like manner, Ori the trial Day offered his brother, Rawley Day, as a witness. He was objected to by Green, as being in-íerested.

<p>A bond conditioned for the payment of 4i 500 dollars in horfes,’’ is a bond with collateral condition.</p> <p>On bonds with collateral condition the damages mu ft be affefled by a jury : it is error to take a judgment without jury.</p> <p>Wallace, &c *vs. Matthews, fall term 1808, £. P.</p> <p>The law does not give inte-reft as a matter of right, on contiatis for ^property.</p> <p>Whether it ihouldbe allowed or not depends on cir-cumftances proper for the con-iideration of a ■jury.</p>

<p>a man duly made a will, which exptefsiy mer will; he afterwards dew¡th an intention thereby to fheformerwU^ and died under thefe circum. ces: the for* mer w'il was held vaiH.</p> <p>Aítsofi79f-7 162, § i,2, 3, i b»d. 377.</p>

<p>On executing a vrrit of ¡nquityjthe jury were fwornr to try the iffué joined,- inftead of to inquire of damages $ this is informal, not erroneous.-</p>

<p>TWO suits between these parties, presented the same questions. The following was</p>

<p>where there a defence « iñacaféwhich ¡>y Iules of have been6 made, the de-¡ng to partió», >r ciieumftan. arifins or bat-tendon) he has been deprived oithe benefit of his defence, or he cannot be relieved in equity.</p> <p>3 ⅜ca-ab-531! ^ 65</p>

<p>TÍIIS was k case of cross áppeáls frota % detree ⅛ á suit relative tó interfering land claifes. The proof in i ¶ . ., /* i 1 the cause, and construction ot the entries in question, presented no point worth notice, until the court came to settle the position of Craig’s second entry of 4GÓ acres. This entry called to adjoin a former entry of Craig’s, of 600 acres, on the north, and another former entry Of his, of 40Ó acres, on the south;</p> <p>The position of Craig’s entry of 600 acres ivas fixed; and David Jones’s fork made its north boundary; The dividing ridge north of that entry, which run nearly east and west;, was the southern boundary of Craig’s first 400 acres entry. But how fat this 400 acres extended along the ridge, and where was the precise termination of its eastern and of its western boundary on the ridge, depén-ded upon the proper position of Grant’s settlement and pre-emption; The object (a spring) called for in Grant’s entry, was not laid down nor established in the cause. Grant’s station was laid down ; but -whether it was really iii the settlement, or if in it, in what part thereof, was omitted to be shewn; If the station was in the western, part of the settlement; it would give one position to the entry of Craig: if in the eastern, it would change its position in part, but not remove it off of all the land covered by the other position.</p> <p>Grant’s entries were as follow:</p> <p>“ January 27th 17¾0; John Grant, assignee, See. enters 400 acres by certificate, Sec. lying on a fork ofHink-ston’s fork, known by the name of Deal’s run; the waters' of Licking creek, to include a spring about twó miles from the head of the said creek, áiidori thendrth side thereof.”</p> <p>“ April 27th 1780, John Grant, assignee, &c. enters 600 acres upon a pre-emption warrant, joining the settlement at the station.’’</p>

THE plaintiff having been for some time attorney for the commoswealth for said court, that court, at ji*r tr> 1 * i their last term, removed him from, office, and appointed another. The order, of removal assigned as a cause for it, that ,,, . 0 , he had removed lrom the county, and that great inconvenience had arisen to the county from it., A copy, of the order of removal was produced, and a motion made for a mandamus, to restore him to the office.

<p>THIS was an appeal from a decree of the general court. It was argued at the last term.</p>

<p>SOME years since, Dunlap obtained, in the general court, a judgment against Hayden ; execution issued on it, and a replevy bond was given. An execution issued on the expiration of the replevy, and land was taken but not sold.</p> <p>After this Dunlap died. His executor, by his agent, issued a venditioni exponas, under which the land taken, was sold for part of the debt. Hayden, by his counsel, moved the general court, at their jast term, to quash the replevy bond, venditioni exponas, and proceedings subsequent to the judgment, for errors in fact and inlaw, alleged by him to exist in the proceedings. The motion was overruled ; from which decision Hayden obtained an appeal, and entered into bond.</p> <p>After the appeal, Herbert, the executor, caused another execution to be issued on the replevy bond, for the balance which was unpaid.</p> <p>Notice being acknowledged, a motion was made for an attachment against Herbert, for suing out the execution ; on the ground that the appeal taken was a super-sedeas to the replevy bond and all subsequent proceedings.</p> <p>— The appeal which has been taken from the decision of the inferior court, removes the record here. The proceedings by appeal, are unknown to the common law ; we derive it from the civil law. Under it an appeal removed the whole record and proceedings, and the fact and law were both open for decision. And when by statute we have adopted the appeal, it must retain all its consequences, except where it is restrained by the statute. The errors assigned below, were in the replevy bond and subsequent proceedings ; and by this rule of technical law, the record ought to be considered here, and not liable to be proceeded on there. By the motion below, a question of right was made, whether Dunlap’s executor could proceed without a scire facias ? That right we are about to have determined by this court, by the appeal; and surely an appeal from a decision on that right, supersedes the exercise of that right, until the appeal is decided. Leftwitch vs. Stoval, 1 Wash. 306, and Gordon vs. Frazier, 2 Wash. 134, shew that an appeal will lie from a decision of an inferior court, on a motion to eor~ rect t^le errors of their officers in proceedings subsequent to the judgment. Herbert, the executor, has violated. the supersedeas, if it extends thus far, and therefore an attachment should be awarded against him.</p> <p>— An appeal must be of exact width with the case decided by the inferior court. That court, in giving the decision which has been appealed from, had not the principal judgment in the cause, nor the execution in question, before them. It was, from the nature of the motion, limited J:o ministerial acts, subsequent to the judgment in the cause, and prior to their decision. If the motion below had been successful, it might have set aside intermediate proceedings, but would not have restrained us from ordering a pew execution. Can their being overruled in their motion be more beneficial to them than if they had succeeded in it ?</p> <p>The case Dever vs. Peyton, in this court* at October term 1806, in which this court overruled a motion made for a mandamus, to compel the Franklin circuit court to grant an appeal from a decision of theirs, overruling a motion for an injunction, shows the difference between cases where there has been a prohibitory order and the inferior court discharges it, and where the prohibitory order never has been granted. In the former case an appeal will lie, in the latter it will not.</p> <p>If in this case, the party had proceeded by writ of error coram vobis, and obtained a supersedeas, and the inferior court had discharged it, an appeal from that decision would have continued the supersedeas» If he had pursued that method without supersedeas, an appeal from, a decision would not so operate. An appeal can only continue to suspend a right which was suspended before, the decision appealed from.</p> <p>The appeal removes the record of the motion; restrains us from proceeding on our judgment below for costs ; but does not concern the former judgment. If. the doctrine contended for on the other side, is tolerated, yoiv will, in every case where the party is disposed to be litigious, have a motion to quash an execution, and an appeal. If the judgment be affirmed, a new execution will have to issue ; another motion may be made to quash; another appeal taken ; and thus continued ad lorfinitum. It will open a wide field for litigation ; pa-ralize the powers of every court; shut the doors of justice, and render litigation immortal.</p> <p>The Court took time, and two days after, overruled the motion.</p> <p>. The defendant’s fcourtsel then claimed costs. Some observations were made by the counsel on each side, on that point, and a further day taken for the consideration thereof.</p>

<p>THIS was án action for a malicious prosecution, brought by Russell against Handley in the Logan quarter session court, and removed to Muhlenburg by change of venue.</p> <p>The act for which Russell wás prosecuted having been done by him as a deputy for Ürbin Éwirtg, sheriff of Logan county, the plaintiff on the trial to prove that said Ewing was sworn in as sheriff, produced á copy of the minutes, the only record of the court df Logan county, in the Words following, to wit: “ Logan county, set: July county court, 1798 — -Urbin Ewing, Esq: háving produced á commission from his excellency the governor, appointing him sheriff of Logan eoiinty, sworn to the same, having given bond and security according td láw.” '</p> <p>The defendant below offered to prove by parol evidence, that said Ewing had not in fact taken the oath of office required by the constitution. The court refused to admit this evidence, being of opinion that the said co^ py of the minutes of Logan county court was “ conclusive evidence that said Ewing had taken the oaths of office.” An exception was taken to this decision, and it assigned for error.</p>

Á capias in debt was sued out of the Gallatin circuit court, by Voilett, executor of, &c. against both of the plaintiffs in error, requiring bail of them. It was served on the defendant, Stafford ; and an alias awarded against M’Gehee, but hot served. A judgment and writ of inquiry was had at the rules, in the usual way, against Stafford. On the second day of the succeeding term, special bail was entered in court for both of the defendants.

<p>SCANTLAND, as assignee of-brought two suits against Keeton, on two notes, for “ 5l. in trade” payable on a day specified in the notes. The declarations contained no special averments of demands at the residence of the debtor. Judgments were entered, without a jury finding damages. Qne of the declarations contains no allegation that the debt was not paid to the assignor.</p> <p>— I wish the court to re-consider the second P°int* 111 Henderson vs. Stainton, it was a penal bond, and the penalty was to secure what the creditor might have a right to, A jury was therefore proper to inquire of the damages. I understand these notes to be for Si. in cash, which the party might discharge in trade.</p>

<p>See cafe. See Barnett & Hutchefsn vs. Warren circuit court, pofi-</p> <p>See adts of 1796.7,p, 70, 71, lBrad.233, a34.</p>

THE plaintiff in error brought an. action of debt against the defendant.

<p>Every alignment of error ihould make out a particular cafe or point to which the de* fendant can an-* fwer.</p> <p>Errors which are properly af-* fignable below on a writ of error cor am vobis, and not afiign-ed there, cannot be noticed on an appeal.</p> <p>No plea is necelTary on a writ of error co~ ram irobis, on-lefs fome error in fa& bealkg-éd.</p> <p>Whenever a writ of error co-ram vobis is fu-edout with/». roS'egecTina replevy bond that has the ment ^and^hé plaintiff in error fails, io per ihould ^be^adjudged to the defendantiner ror‘</p>

<p>A chancery thejrovifwnsór the lawautho-rifing a change °f</p> <p>if a be improperly re. moved by an order fur a change of venue, exception rauft be taken to it on his or her firft appearance ⅛. the court to which it is removed, other-wife it w/ii be. too late after-wards to on it. ^</p> <p>Every order or proceeding of a judge, made out of court, is fubjefl to the revilioQ of (⅛‡ «towhich or tK« «⅛ ⅛ ⅞ “ “ade>“ "⅛-</p> <p>⅛ a ehan«. rjcayfe, artera 7a?‘a ’*“fh ,he proofs m *⅛ caoie, it is without <hew-in*°f *</p> <p>; j» a common law to ⅛. is cato foraWai-<⅛⅝</p>

<p>The affign-mentof tion divefts the intereft in it & veil* it io the ajjh:nee ; and bhgor to the o-fignmer,t proteíted, it is gee-Yn/there; fore foch debe ^ttaThment6 ^ the debt of the obligee, after ⅛' alignment, noYSe thereof to the , B igor 5 Provldei1 the o-. ¿¡ce'of'the at" fignment before he makeS hi¡> garnithee. ^</p> <p>if a court 8‘Te ⅝1 errone-agamiTd^ar-nifoee* it will not .Pl6teit ihe perfonMiaving; a right to the deht> wh° were fu¡crtles ta</p> <p>The garni-⅛⅛ro Protea: hlTe^his^con-feffion, entered at Ur&e on tfae ” cite emmeoufly hecanProfecute wri/oferror”to correa it.</p>

BEAUCHAMP, as administrator of John Mudd, brought, in the court of quarter sessions of Washington county, an action of detinue, for a negro man slave, against H. J. Mudd. The cause was transfered to the Washington circuit court, on the change of the judiciary. A plea of non detinet was put in, and issue taken thereon. Two other pleas were entered, to which no replications were entered.

AN action was commenced by M’Kinley against Smith, in Henry circuit court, for slander. On the trial, a verdict was given for the defendant.

<p>The defendant in error, brought an action on the case, against the plaintiff in error, in the court of quarter sessions of Barren county. In his declaration, he complained, in substance, that he had put into the hands of Trigg, then sheriff of Barren county, a writ against Timothy Mershon, requiring bail; that Trigg, on the execution of said writ, accepted Job Towhridge as bail, but failed to return on the writ, that he had executed it, and taken security, and return a copy of the bail bond; or to make any return whatever, on the said writ, or to the same ; by reason of which omission, the court discharged Towbridge (on his motion) from his undertaking as bail ; that he, Shields, issued an alias, and prosecuted his suit to judgment against Mershon, but lost the debt by the discharge of the bail.</p> <p>After the suit was brought on the issue docket, it was refered. At á subsequent term, the order of reference 'was, on the motion of the plaintiff, set aside. The defendant immediately put in a special demurrer to the declaration, to which there was a joinder. On argument, the court overruled the demurrer. 1 he defendant excepted to that opinion, and then obtained leave to withdraw his demurrer ; which he accordingly did, and put in the plea of not guilty ; on which issue was taken, and a verdict and judgment for the plaintiff. Trigg, the defendant below, sued out a writ of error to reverse this judgment, and assigned the following errors :</p> <p>1st. The court below ought not to have set aside the order of reference; ,</p> <p>2nd. They erred in overruling the defendant’s de; inurref;</p> <p>3rd; It appears from the defendant’s own shewing, in his declaration, that the court erred in discharging the appearance bail, taken in the suit Shields vs. Mersh'on, and conscquendy, that there is no cause of action against Trigg. . (</p>

COLEMAN filed his. bill in chancery, in said court, against Holeman and others. Before the suit was set for hearing, the clerk, through mistake, entered on the rules “Dismissed by order of the complainant.” The cause was not entered on the court, docket, at the succeeding term,, amongst the office judgments, as an office dismission.

<p>In fuits by non-refidentsj ¿he bond for coils fhould regularly be given to tfre defendant in the aftion.</p> <p>If it do not fecure the coils which the defendant may have a right to demand, it is defeélive.</p> <p>If executed hy arefident fe-curity, without the plaintiff in ¿he fait, it is Sufficient.</p> <p>Ifafufficient bond be riot given, the fuit may be diimif-ied on motion.</p> <p>Cut if before it be difmiffed* a bond condi-' tioned to pay* the cofts which have accrued & whit-h may accrue be given, it is fufficient.</p> <p>nghtfecured by-be*iío otherre! medy provitM If the decifi-on of a court would deprive a party of a b/ law> ,a "f”damns will lie.</p> <p>See anonymous, <™e H9-</p>

<p>THIS was a suit brought in the Danville district court by Smith’s executor against the firm of Tardeveau, brothers, and Innes, their security. It was founded on a bond, with a penalty in the usual form, dated the 29th May 1788, and conditioned as follows : “ Whereas the above bound Tardeveau, brothers, are indebted to the said James Smith, two likely negroes between the age of fifteen years and twenty-five, to be sound and healthy; which said negroes ought to have been delivered in the month of January last past; but from some circumstances, it hath been inconvenient for said Tardeveau, brothers, to pay the said negroes, and the said James Smith being willing to wait until the 29th May 1791, on re-ceivirtga reasonable hire for said negroes. Now if the said Tardeveau, brothers, shall well and truly pay or cause to be paid to the said James Smith, his heirs or assigns, two likely negro male slaves, sound and healthy, between the age of fifteen and twenty-five years, on or before the 29th May 1791 ; and also the sum of 12/. per annum for each of said slaves, to commence from the first of January last past, until the said slaves shall be paid to the said James Smith, as a compensation for their services, until paid, then the above obligation to be void,” &c*</p> <p>On the trial of the cause, in the Lincoln circuit court, to which court it was transferred on the change of the judiciary, the defendants moved the court to instruct the jury, “ That the hire of the negroes specified in the writing obligatory, on which the suit was founded, was usurious, and as such not recoverable : and that it would be proper to find legal interest on the value of the negroes, as it would otherwise be a greater compensation than the law contemplated.”</p> <p>This motion was overruled by the court; and judgment being given for the plaintiff, the defendants appealed. The errors assigned in the cause, went only to question the propriety and legality of the opinion of the court, in overruling the aforesaid motion.</p> <p>— -It is the duty of the court to instruct the jury whenever it is asked for, unless the instruction desired be not law — 2 Wash. 272.</p> <p>The proper criterion for damages, is the value of the property, when it should be paid, and interest from the time the cause of action accrued — Pope vs. Campbéll{ in this court (a), where the contract was for young ne-groes — 2 Bur. 1011, a contract for stock — 1 Stra. 406--' 8 Term Rep. 162, 1 Wash, 3.</p> <p>An agreement between the parties, to set the hire ofá negro against interest of money, is usurious and void, as respects that part of the contract — Reed vs. Lansdale$ in this court (b). This is án attempt to do the same thing. The act of assembly is designed to guard against imposition. It expressly mentions the cases of forbear1 anee (c). This bond, on the face of it, is for forbear^ anee- The right to receive hire for a slave, is on account of the risk the owner runs, of the life oí his slave; It is the same principle, which authorises a man, on a money contract, to take more than legal interest wheré the principal was at risk. Here, the title to the negroes remaining in the Tardeveaus ; they risked the lives of the negroes ; Smith risked nothing. It is therefore illegal and unconscientiGus, for him to receive the compensation for the risk run by his debtor. It is true, that the contract expresses that it is for hire, but the fact is apparent, that it is for forbearance. There can be no ■hiring, where the party pretending to hire out, has no title to the property, and can run no risk of its life,</p> <p>If the contrary doctrine be maintained, how would you settle partial payments ? By the common law, partial payment went first to sink the principal, and then the interest (d). It is altered by our statute (e), In casa part of the principal was discharged, would you calculate interest on the residue, or apportion the hire i The inconvenience and uncertainty that would result from attempting to apportion the hire, will shew that it ought not to be allowed.</p> <p>— The statute against usury, was intended to guard against irauds in loans, and not to restrain men in making real and bona fide contracts* which are not for loans, nor intended to cover a lending. For the true exposition of the statutes against usury, I refer to 5 Bac. (old Ed.), 406 to 410, title, Usury, letters B. C.- — Cowp. 115, which fully support the position I have taken.</p> <p>This is a real contract, and a stated compensation for the breach of that contract; and is intended to place the party in the situation he would have been in, if the failure to pay had not taken place; A jury should in all cases give such damages as in conscience will remunerate the plaintiff for the failure of the defendant tó perform his contract.</p> <p>If there be a failure to transfer profitable property; more than six per cent, should be given ; if unprofitable» less. This is an attempt to restrain a mart from making a contract which is fair ill itself, and equitable in its application. In the case of Talbot vs. Buford, which was in two several shapes before this court, some years since ; and which was as obstinately defended as any suit ever was in this country ; there was a clause in the Contract similar tó thé one now iri question ; and Under which, several hundred pounds wfere eventually recovered. It is true, the point now in question, was not made irt that cause ; but if it had been thought á tenable point, it would not have escaped the attention of those concerned.</p> <p>In the case of Pope vs. Campbell, the attention of the court was drawn to the time or age at which the ne-groes were to be valued. No question was there made between their hire and interest; Negroes of their ages (ten years) were not worth more per year, than interest on their value. The cases cited from Strange ánd Bur; were decided on questions to the form of action, and not on the quantum of compensation. The caSe of Reed and Lamdale, was the case of a loan, and therefore does not apply. The case of partial payment put by Mf. Allen, coüld never be made a question ; in this action, it could not be pleaded so as to bring it in.</p> <p>But if the contract were Usurious, the appellant could not take advantage of it without pleading it — 5 Bac. ab; (old Ed.) 420, § 12, 13 — 423, § 17, 18 (a).</p> <p>— A man who has a legal or equitable right to property, has also a right to its profits. If he could only claim its pricey he should have interest as the profits of the price. If he coüld have a specific performance, he is entitled to the real profits of the thing he could have in specie (b). If the doctrine contended for by the appellant be correct, á man who held a negro which he ought to pay over to another, might hire that negro out for 25 per cent, of his value, and pay the debtor six per cent, of it; leaving himself a balance óf 19 per cent, made on the property of another, when he could only make six per cent, by the loan of his own property.</p> <p>— If we could not by plea avail ourselves of a partial payment, it shews that the measure of damages which I have contended for, is correct ; for we should have to resort to equity to get a discount, and chancery would only allow us our payments, with interest thereon.</p> <p>The statute against usury, is not confined to the cases of lending. It extends to cases of forbearance. This is a case for forbearance in terms. If the contrary doctrine be supported, it will materially injure securities. They must stand by while their principal and his creditor are litigating any point in the cause ⅝ and if at length the principal fail, they must pay a sum which they Could not have foreseen nor guarded against. Here the security might, by pleading the usury below, have avoided the whole. He has not done it ; but only wishes to get clear of that part which is oppressive. If there had been no stipulation for hire, nothing more than legal interest, together with the value of the negroes, could have been recovered ; and the parties cannot by contract, legally stipulate for more for forbearance, than the law would give.</p>

CARTRIGHT filed his billin chancery in the court of quarter sessions of Madison, against Collier ; claiming the land in question, by virtue of an entry made qn the 19th day of February 1783, for 600 acres; as follows : “ Beginning at William Hays’s north-east corner of his settlement and pre-emption, on Boone’s fork of Silver creek, and to extend south, along the said Hays’s Wardly side, and east for quantity.” TT J , , , ^ J . , TT , , , , Hays s settlement and pre-emption,…

<p>THIS cause was argued by and for the</p>

<p>Averdia & i/°an aftTofofdtbtW cured by the Ratute of jeo-</p> <p>'The failure of the iheriff to Sf not materialnor inquirabie into after iffue join-</p> <p>.™*. co“rt will not inquire ¡nt0 que(i:iona relative to the ™;ion3 a ec%*°~ below, uniefs ihe^queftions were made ⅛</p> <p>,hen ⅛ would not affeít the P"1*^*1 j"ds-</p> <p>jt error to refuft to per-heCg„ t0 open & con. dude a caufe ¡⅛8 taken on pleas of ^“*nt & fet*</p> <p>Sce Mirim ’</p>

<p>County courtshave jurtfdiction to hear motions and enter judgment a-gainft the ihe-riff or county colle&or for falling to pay money to a county creditor.</p> <p>They may enter judgment a-gainft him for anybalance that may be due from him to th? county*</p> <p>The principal has the fame remedy, and in the fame court, flgainft his delinquent deputy.</p> <p>onT^iec^ld^ncf ¡“c founded, ought not to be enter, unlef" b^C°biiI of exceptions,</p> <p>.tlle Pnn-neywithoutTuit which his de-P^W to proceed his deputy as if .ha,i Pald lfc</p> <p>County creditors cannot ^ov.e * coiieaor!11 °</p> <p>Cofts are ⅛-f°tever£ iughHo be gi-Ten.</p> <p>If. notlce 11 camn,0n intent,’ it is iuffident,</p> <p>_ ,. See Reading 'vs. Holton, ante e3-</p>

<p>One of feve-pl defendants in an execution may replevy.</p> <p>If the enors aiTigned on a writ of error co-ram vobis be 0-verruled, ten fer cent, damage may be awarded to the defendant.</p> <p>See fame point decided in the cafe of Lanjdaie vs. Findley ¡ ante 51'</p>

<p>This court will oot remand á caufe to enable a party to amend a furvey.</p> <p>See ' Stoker's heirs vs. Paynef Pr. Déc.'^é*</p>

<p>THIS was an appeal from a decree of the Green cir *. cuit court, dismissing the bill of the appellant. It was argued last term by</p>

<p>WRIT of error from Bourbon circuit court; it was argiied by Clay, for the plaintiffs.</p>

MYERS filed his bill in chancery in the old Mercer court of quarter sessions, against M’Cullcragh.

<p>Prafllce-cafe■fee</p>

AN ejectment in the name of •• — — on the demise of Bush, was commenced in the Nelson circuit court. A copy of the declaration was served on Davidson, the tenant in possession ,* he not appearing, a common order was taken against him. At the succeeding term, William Hardin made himself defendant, by consent; entered into the common rule, and confessed judgment, reserving equity. A writ of error to reverse this judgment, was brought in the name of Davidson.

A. writ of error coram nobis was prosecuted by Lans-dale against Findley in the couft below, which was decided in Findley’s favor, and ten per cent, damages awarded to Findley I.ansdale appealed, and the judg-ihent was affirmed at the last term — -See ante 131.

MORTON sued Rerault, and made ah affidavit to fcold him to bail, upon, which He obtained a judge's dr-der tor that purpose; the defendant accordingly gave appeát-ánce bail.

FRANCIS having had a judgment for costs in this court, on reversing a decree obtained against him by Hazlerigg’s executors, in Clark circuit court, (See ante 48) issued his execution thereon ; which was replevied.

THE circuit court of Bourbon gave a decision in favor of Johnson, upon a case agreed, which was in substance as follows : “ That Benjamin and Elijah Craig, on the 4tH day of December 1799, executed their promissory note, for g'500, to Drake, the defendant in that court.

<p>A motion was made for a re-hearing of this cause.</p> <p>— The record shewed the fact that Shipp had made oath that he had material witnesses absent; that he had not summoned them, owing to a belief that the order for the change of venue would remove the cause. The decision of this court, in the case of Pearpoint vs. Creamor,* and two others therein mentioned, were considered as deciding the doctrine we contended for, that the cause could be removed at any time. This impression had got out, and was acted on. The rule that a man must know the law, always a hard and rigid one, ought not to be construed so as to deprive a man of a fair trial. The oath of Shipp that he acted under a belief that the law was otherwise than this court has decided it to be, is the only kind of evidence that can be resorted to. It must be taken to be true, unless contradicted. It is a kind of suit too, (slander)</p>

STOUT brought his action in Hardin circuit court, ftgainst Bruner.

JOHN H. MORTON, was the agent of his father, William Morton, in managing a suit against Respass, and as such agent, entered into an agreement with Res-pass relative to said suit : after which, he violated the agreement; and Respass filed his bill in chancery, against both fathér ánd Son, for relief. The bill contained no charge that the son exceeded his instructions in violating said agreement.

LITTELL moved for leave to file an affidavit that the summons in this cause had: been duly served on the defendants, but was lpst by accident, in returning it- to the office; and that the.affidavitshould.be received in lieu of the process executed.

<p>THE plaintiffs broughtan ejectment against the defendants, in the Mason circuit.e,ourt.. The record states, that “ On the motion of Thonaas Fitzgerald, William Peppe^ and Jane Porter,, who .are the tenants in possession, it is ordered that the saiditenants in possession he made defendants herein,, whp by their attorney confesses lease, entry, and ouster, and plead, &c. .and that all matters in dispute between,them, both at.cotnmon law and in equity, be refered,to,the arbitrament of the honorable John Coburn, Henry Lfe, and Miles W, Con-; Way,” &C. • ’ '</p> <p>The arbitrators, made andu:eturned :an award; to the next succeeding term of the court;; which award being, defective, the plaintiffs obtained a rule to shew cause why, .1 « , t r . , q ' tt ¶~ . ,J '■ lt should not.be set aside* &<;•. typpa shewing cause, defendants moved , for- and obtained. leave to withdraw-the award, in order to submit the matter again to the-arbitrators ; to which the plaintiffs objected, and filed-their bill of exceptions.,</p> <p>At another term, the arbitrators returned another insufficient award ; upon which, the same course of proceeding took place, as: in the first instance. A third meeting of the arbitrators was procured by the defendants, at which two of them, the third dissenting, mada a third award, which was returned and made the judgment of the court, after being ppposed by the plaintiffs,</p> <p>A writ of error was brought to reverse that judgment ; which was argued by Clay for the plaintiffs, and Marshall for the defendants.</p>

<p>AT the spring term 180/, application was made to the court for the purpose of instituting a proceeding against Daniel Barry, clerk of Ohio circuit court, to remove him from office, under the 10th section of the 4th article of our constitution ; which, speaking of clerks, says, “ They shall be removeable, for breach of good behavior, by the court of appeals only ; who shall be judges of the fact, as well as the law. Two-thirds of the mem- , 7 . ¶ ,, bers present must concur in the sentence/7</p> <p>The court then decided that the proceeding should be carried on in the name of the commonwealth; and that it was a part of the official duty of the attorney-general to attend to and manage the prosecution ; and that he must exhibit the charges in writing, and show probable cause, by affidavits or other documents, for each charge.</p> <p>The attorney-general, Blair, at the succeeding term,* exhibited his charges against Mr. Barry, in substance, as follow :</p> <p>[The two first, charged him with attempting, by bribery, to procure a vote for himself, for the office of clerk J .r .. 7 to Ohio county court.]</p> <p>‘‘ 3d. For making á general practice to charge higher fees, as clerk of the Ohio circuit court, than the law warrants. In many cases charging tees tor services as clerk, which are not authorised by law ; and in some cases for services which were not rendered by the said Barry ; which will more fully appear in the following fee bills. [Here the charge specified, by their dates, and against whom issued, numerous fee-bills.]</p> <p>“ 4th. For issuing two fee-bills for the same services, .and demanding payment on each, as will appear from the fee-bills against the estate of Charles Travis, dated, &c. [Specifying them as before mentioned.]</p> <p>“ 5th. By endeavoring to corrupt the sheriff, by. attempting to pu.rsua.de him to strike off from his, panel of grand jurors, Benjamin Field, after he was summoned ; the said Field being a man well qualified to discharge the duties of a grand juror, and one of good fame.</p> <p>“ 6th, For erasing from the panel of grand jurors, at the April term of the Ohio circuit court, the name of Benjamin Field, after it was returned by the sheriif, without the knowledge or consent of the court, and from private and personal motives.</p> <p>“ 7th. For advising- a certain Abner Spray, on, the —r—day of October 1806, to, bring suits of slander, a-, gainst Roger Potts and Ralph Hunts, and. advising i>pt to dismiss them on the application of the plaintiff.:,</p> <p>... “8th. For charging exorbitant fees in the last.above-mentioned eases, and for services therein, which were never performed, as well as in, the fee-bills, against [others, specifying them.]</p> <p>“ 9th. For permitting, in his presence,, and: with the approbation and: consent of said. Barry, a replevin bond, taken; upon an. execution which issued from his office,, against the executors or administrators, of, Charles Tra-. vis, and returned by the sheriff, to be altered^ by erasing the name of John Handley, and inserting the name of - — — Perkins, after the said replevy bond was returned; and filed in the office of which said. Barry is clerk, con-, trary to his duty, and contrary to law.</p> <p>“ 10th. For issuing execution according to the reple-vy bond, so as aforesaid altered and, changed.”</p> <p>[The eleventh charged him, with being-an alien, a subject of the king of Great Britain and Ireland, and therefore not entitled to hold the said office.].</p> <p>The attorney-general proceeded to shew cause-why process should, issue on the foregoing charges, by producing affidavits,of the facts alleged, and the fee-bills which were charged tobe improper.</p> <p>stated that Mr.. Barry had heard of the prosecution which, was , about to be instituted against him, and had engagecLtbem, to.appear for him.. They should question the-right of the prosecution to inquire into any misconduct of the defendant, except what reía-. ted to his office ; and; that if the court thought it necessary to determiné that poiht, at that stage of the proceeding, they wished to be heard on it.</p> <p>They should also contend that Mr. Barry’s being an alien, was no disqualification to his holding the office of clerk.</p>

STHRESHLEY arrestedFisher;andtook him before Wooldridge, á justice of the peace for Woodford county, and charged him with an intention to commit a felony.

<p>A demand ⅛1 fet-offtoa bond given to the ad-miniilrator*</p>

<p>IN the first week of the term a motion had been made mandamus, on behalf of Price, against the Shelby, circuit court; and the motion overruled. On applicar tion, leave was given for a re-argument.</p> <p>was re-argued (a), by Allen and Lit tell, for the, plaintiff,.</p>

<p>The cause was argued by</p>

<p>A deed calling to run “⅛ down the creek* ⅜⅛⅛ the meanders> binding teys'no’right ro the channel or creek:</p> <p>0f the proceedings on a writ of ^ ¿amp“”’ofetorof feff tabii&ing a wa-Ier mllI>are not pcrfon who wa8 not ⅛ any ^hereto*</p> <p>But howc-ver irregular migh^have8* been, they are conducive evi-were parti*» thereto, until “*r*Terf-</p> <p>Awritingnot un<Jer feal, and ‘)ot .a part °f a knot ad-miiíbie evi-^'"eVpiahTthi iegai import of the deed,</p>

<p>THIS was an appeal from a decree of the Bourbon' circuit court, “ in which the chief justice and second judge could not with propriety adjudicate and fore refused to sit. Whereupon the other two judges, (.“ not bing also disqualified,”) constituted the court for the trial of this cause, according to the act of assembly, in such case made and provided.* f</p> <p>The case was as follows : — Philemon Thomas exhibited his bill in chancery against Malachiah Couchman, who.had obtained the elder grant upon an entry in said Couchman’s name, for 500 acres, praying a conveyance of so much of the said land, as should fall within the entry of John Tabb for 5000 acres, made the 24th December 1782, by virtue of which the complainant claims. This entry is in the words and figures following :</p> <p>“ John Tabb enters 5000 acres of land, part ofatrea-sury warrant, No. 9793, beginning at two white-ash saplings from one root, with the letter K. marked on each of them, comer to said T abb’s 10,000 acres entry ; thence with a line of said entry, N. 45 E. the whole length thereof ; thence extending from each end of this line, at right angles, N. 45 W. for quantity ; to be laid off in one or more surveys, excluding all iegal prior claims.”</p> <p>The entry of 10,000 acres, alluded to in the former entry, was made on the same day, and upon a treasury warrant; and according to the copy exhibited by the complainant, was “ to be laid off in one or more surveys, lying between Stoner’s fork and Hinkston’s fork, beginning about 4 or 5 miles nearly N. E. of Harrod’s lick, at two white-ash saplings from one root, with the letter K. marked on each of them, standing at the forks of a xvest branch of Hinkston’s fork, and on the east side of the branch ; then running a line from said white-ash saplings S. 45 E. 1,600 poles ; then extending from each end of this line N. 45 É. down the branch, until a line nearly parallel to the beginning line, shall include the quantity of vacant land, exclusive of all prior claims.”</p> <p>By reference to copies of this entry, formerly taken; by depositions ; by a copy in the hands of the complainant himself, before the commencement of this suit; and» from an inspection of the original entry, in the survey- or’s book ; (had in the circuit court, and again in this court; by a subpoena duces tecum., to the surveyor) ; it clearly appeared, that the figures “ 6 ” and “ 7,” in the original entry, have, by some person, been changed, long subsequent to the making of the entry, for 4 and 5. The entry, then, when restored to the true reading, would be, “ Beginning about 6 or 7 miles nearly northeast from Harrod’s lick,” &c.</p> <p>The evidence established the following facts : — The forked ash, or ash saplings, claimed as the beginning of Tabb’s said entries, were marked by Simon Kenton, in August 1781, with the letter K. on each fork. The fork js 14 inches from the ground. George Hart was the only person with Kenton at the time.</p> <p>This beginning is three miles, and 150 poles distant from Harrod’s lick.</p> <p>The course from the lick to the tree or trees, is north . $ 1 1-2 degrees east.</p> <p>The tree stands on the east side of a creek running» into Hinkston, on the south, side ; and stands four poles - belozo the fork of the criek.</p> <p>This creek was well known at and before the date of. Tabb’s entries, and ever since,, by the name of Clear-creek.</p> <p>A line from Harrod’s lick, north 54 east, will cross Hinkston, at the distance of 1,646. poles, or, 5 1-8 miles and 6 poles.</p> <p>The land between Harrod’s lick and the beginnings of Tabb’s surveys, was thickly set with, cane, even as late-as 1795.</p> <p>Some of the witnesses speak of a trace from. Harrod’s. lick to Hinkston, and passing within a few steps of the ash tree, or ash saplings, as they are called, as early as 1781, though dull on the dividing ridge.</p> <p>Harrod’s lick, Stoner’s fork, and Hinkston’s fork, have been generally known and so called, before and since the date of Tabb’s entries.</p> <p>From Harrod’s lick to the farther extremity of Couch-man’s survey, does not exceed 4 1-2 miles.</p> <p>Two or three witnesses swear, that at their first travel-ling from Harrod’s lick to the forks of Clear creek, they estimated it from six to eight miles.</p> <p>Clear creek, from the connected plat, shewed no other division of its waters, that deserved the name offorks ; the tributary streams being inconsiderable in size. Its general course from the head to the mouth was nearly north-east; but owing to a considerable bend in the creek, it, at about 100 poles below the forks, turned to the north of a north-east course from the forks, and continued to its mouth, to vary more considerably from that course.</p> <p>The evidence as to the notoriety of the ash saplings, was to the following amount: — Questions by Thomas, the complainant, to William Clinkingbeard, in a deposition taken at the forks of Clear creek : “ Was not this place generally known, and the saplings marked with the letter K. to the hunters at Strode’s station, as a place of notoriety, as early as the years 1781 and 1782? A. “ Yes.” To Isaac Clinkingbeard, at the same place : “ Were not these saplings and this fork of the creek, a place if notoriety amongst the people of Strode’s station, as early as the fall of 1782 ?” A. “ The forks of the creek were, and I have heard the ash saplings talked of as early as that time, I think.” This witness says, in two of his depositions, of June Í802, and of January 1804, that he thinks he “ saw the ash saplings as early as 1783, or thereabouts, and might have seen them sooner and in another deposition of March 1804, he says, “ I think I saw them as early as the beginning of 1782, upon second recollection.”</p> <p>To Joshua Stamper, at the same place : “ How early do you think these trees were generally talked of in Strode’s station, by the hunters ?” Answer. “ In the year 1781, or at farthest, early in 1782.” “Did not this place become more talked of, in consequence of those trees being marked here 2” Answer. “ When we were describing the place, we would sometimes speak of the forks of the creek, and sometimes of the marked saplings at the forks of the creek; at xvhichyi think, hoth the forks of the creek arid the ⅛⅜⅞¾⅛ síáp-lings, was notorious amongst thé hunters at Strédé’s sik-tto'ri.”</p> <p>This witness farther says, upon interrogations, that the saplings títere described as standing at the forks of Clear creek ; and that the forks were generally sO cáíléd. by the hunters atStrbde’s station, as early as 1781, add ever since.'</p> <p>Five or six witnesses who resided at Strode’s station, and were acqüáiritfed with the woods in the quarter of the country where this land lay, state that they kriérir nothing of'the ash saplings, nor of the forks of Char créék, uritil l 78 Sj or la¥éf, though most of thenk krieSv of Clear creek.</p> <p>1’he Bourbon circuit court sustained Tabb's entry ; from which decree, Couchman appealed.</p> <p>— That the entry of Tabb for 10,000, on whi'fih thé o’ue nów in question depends, has béeh altered, is apparent frbia the inspection Which thé court has had of the original; arid it is also niáde out by proof of whát the eñtry WaS, before altered. I shall not contend that an alteration of an entry by a stranger to it, withóut the assent of those interested^ will destroy it. But ifAe alteration be made by those interested in thé éritry, or by théir assént, it must destroy the eritry, Under the well settled common law prnlbipTe, that nó Wan shall have the benefit ofa writing which hé has altered in a material part.</p> <p>The record shews that the complainant is interested in the entry of 10,000 acres, as well as the one immediately before the court ; that he knew What the entry was, as!t ivas originally inade ; and yet he has filed his. bill, claiming under this entry, in its forged shape., Ffoth this, his ás'sént to the alteration may be mfered } and it is sufficient to preventhis having the beriéfit of it* iri a court of equity.</p> <p>If, however, Thomas can clairri thé benefit of this eh-: try, it is otte Which cannot be supported. It is materially defective in not calling for Clear creek by its appropriate arid Well known name, and must meet the fate Of Dorári’s eritry in the case of Déraii and Ashley vs, Ctaig and Johnson (a). ■</p> <p>: This entry is equally defective in the other descriptions given, by which to find it. The course is maté-rialTy variant, and the distance fails far short; óf that called for.' So deceptive are these calls, when all combined, that no person would have thought of looking for the marked trees on Clear creek ; a stream well known by that name.</p> <p>This court has, in the-case oí Smith vs. Smith arid others (a), said that a subsequent locator would have considered himself perfectly safe, in locating lands in 9 1-2 miles of Pittman’s station, when the entry in question then, called to li e 15- miles from the station. So here, Couchman felt himself perfectly safe in appropriating land within four and a half miles of Harrod’s lick, when Tabb’s entries called to lie six or seven,nüles from it.</p> <p>If any reliancé is'placed; on the call in-this entry, to lié between Hinkston, and Stoner, it would go equally to* prove that no part of the land should lie over Hinkston,. as to shew that the beginning should not be beyond; Hinkston. But acceding to that rule, it would make the beginning within a few poles of Harrod’s lick:, much, nigher than the opposite party will.be willing to admit.</p> <p>If this entry be defective in every call: of description,, it eannot-be supplied, on the foundation of the notoriety of the marked trees. The evidence is too weak to admit of any doubt. The eases of Speed vs. Wilson (b), and- Craig and Johnson vs. Doran and Ashley (c), were: much better supported by proof, but were held insuffi- cient.</p> <p>— -The entry which; has been altered, is not the one Thomas claims under in this suit. And in filing his bill, he could not exhibit it in any other words than those in which it was certified to him by the surveyor. But this, is not a point made by the pleadirigs in the cause. Couchman, in his answer, does not charge Thomas with makingthe alteration, nor assenting to it; and not having made it a point in the pleadings^ it cannot avail in argument. If the point had been made, the complainant could, and would have repelled it successfully.</p> <p>Whenever course and distance in an entry, are used as general or descriptive calls, they must not be too rigidly adhered to — See the case of Taylor's heirs vs. Kincaid (d)¿ Even in the special or locative calls of an entry, if it is evident the locator was mistaken in one of them, you will deviate from it, or reject it; as i n Paw-ling- vs. Meriwether's heirs, Hughes 14, 15 — Consilla vs. Briscoe, ibid 45 — Kenton vs. M'Connell, ibid 134. The description of course here, is not “ north-east,” but “ nearly north-east /’ which would inform a subsequent locator that he was not to confine his searches to the due north-east course, but was to range a few degrees from it. This call was correct in this respect, for the corner is within six and a half degrees of the due north-east.</p> <p>The call here for distance, is one well accounted for. In giving distances by estimate, if your estimate is such as others travelling the same rout would make, it is a description better calculated to enable an inquirer to find the object called for, than if the true distance were given. Here the difficulty of travelling through the cane, was such, that no person who travelled it, about the time of making Tabb’s entry, estimated it less than the distance we call for.</p> <p>But if any persons had taken a compass and chain, they would have struck Hinkston before they had reached foe distance called for. They would at once have concluded that the locator of Tabb’s entry was mistaken ás te> distance ; for the call lying between Stoner and Hinkston, is not to be disregarded in searching for the 'beginning, A locator might easily be mistaken as to the distance Hinkston was from his beginning ■„ but he Could not be mistaken as to which side of Hinkston it was. No candid man can take Tabb’s entry, and say be would look on the north-seastside of Hinkston, for tire beginning. But when the beginning is obtained, as the entry gives course and distance for its figure, it must pursue them, though they would cross Hinkston : for the mistake of the locator as to the quantity of land between his beginning and Hinkston, cannotaiter the shape which he has given to his entry, nor curtail his quantity - — See South vs. Bowles, Pr. Dec. 32.</p> <p>The case of Smith vs. Smith, &c. has been relied upon, as to the call for distance in this case. There the court say, that after an inquirer had gone the distance called for, and searched for the object designated, he had nothing to induce him to search short of that distance. If in that entry there had been any thing to have directed him back, the entry would have been saved. Budiere, Hinkston was a barrier before the inquire? peached the distance called for; and at once directed him to look nearer to Harrod’s lick. The call for a west branch of Hinkston, forbid his crossing it.</p> <p>The mistake in distance could not therefore mislead.</p> <p>The next inquiry would be for the forks of “ a west, branch of Hinkston’s fork.” The connected plat delineates all the water courses that are near to the course-called for. Clear creek and Brush creek, are the only west branches of Hinkston that are in that quarter. But Brush creek does not run N. E. as called for in the entry ; and it has no forks to it that could mislead. But if it had a fork near the course and distance called for, no marked trees, such as are described in this entry, would have been there found. Besides, a N. E. course from Harrod’s lick, will cross Clear creek, but will not touch Brush creek. Clear creek, therefore, is the only branch of Hinkston that an inquirer would be led to. I-t has a fork, or junction of two of its streams, nearly of a size by nature, that could-not be mistaken. Ip has but one ; for the other streams that empty into it, are too small ever to have received the name of forks; or to! have induced any hesitation as to them.</p> <p>Tabb’s entry calls to run north-east down the branch. The general course of Clear creek is nearly N. E. and its course for one hundred poles from its forks, is N. E. Add to this, that when at the forks, the marked trees called for were at the spot, and were too. remarkable by nature and by art, to be mistaken.</p> <p>They indubitably identify the beginning called for.</p> <p>It is, however, objected that we have not called for. Clear creek by its appropriate name. It is not necessary to call for an object by Its proper name, provided such words of description are used as will lead to it, and will suit no other place — See Bryan and Smith vs. Bradford' and Gatewood, Hughes 55 — Smith vs. Evans, ibid 88— Taylor's heirs vs. Kincaid (a).</p> <p>We have shewn that the object called for as nearly, N. E. from Harrod’s lick, is in six and a half degrees of due N. E. That the mistake in distance is corrected by the other calls. That Clear creek is the only west branch of Hinkston in the course called for ; that its running a N. E. course, and its forks fit the entry, while the marked trees identify the spot; and that no other stream Wll fit the entry in any one particular. If these combined will not supply the call for Clear creek by its acquired name, and save this entry, few entries, dependant op description, can be supported. But the decisions of this court have supported, not destroyed, entries depen-dant on description only — Toung Ss?c. vs. Burton, Pr. Dec. 327 — Johnson vs. Nall¿ ibid 393 — Watkins vs¿ Moore, ibid 390.</p> <p>But this entry was not dependant on description alone». The object called for, had acquired considerable notoriety before making Tabb’s entry, as is proved by several of the depositions- This would greatly assist in support»» ipg the entry, and supply any defect in its description, if it should stand in need of any aid.</p> <p>— If it be a sound rule of equity, that-a complainant must come into chancery with clean hands, or he shall not be relieved ; the complainant cannot be entitled to recover here. He comes in claiming under a forgery. It cannot alter the case, that the forgery is not in the entry immediately before the court, but in one on which it depends. The complainant is interested in that entry, and the alteration, if it had passed unnoticed, was equally as advantageous for this entry as for that. The soundest dictates of morality, require that those who claim through a fraud or forgery, should fail of their ends; and as they have dishonestly grasped at more than was their right, the door of equity should be shut against them.</p> <p>This entry is, however, vague, and cannot be support-, ed. The call for course must either be taken for a call for due north-east, or it gives the range of a quadrant between north and east. If the former is taken, the' course w ill not lead to the object called for : if the latter, it is too indefinite and uncertain, and the range to search for the object too large, to support the entry.</p> <p>The call for distance is equally fatal. It would lead you miles beyond the object now claimed. It is in vain for the other side to contend that the call “ lying between Hinkston and Stoner,” is to control the distance. Look at the connected plat, and the survey as made and. claimed by them, crosses Hinkston’s fork. This latter call is, therefore, abandoned by them, as impossible to be complied with, when they come to give figure to their survey. Surely a call cannot be a good one, and a bad one, at the same time. It cannot be both correct and, ■fallacious. Abandon it entirely, and it leaves the distance called for uncontrolled ; give it full effect, and it will bring their beginning within one eighth of a mile of Harrod’s lick.</p> <p>If this call would have any effect, it would be to induce an inquirer to disbelieve that the spot now claimed-was the place intended, as from it the survey could not be made as called for, and lie between Hinkston and Sto-ner.</p> <p>In the case of Smith vs. Smith and others, the entry described the spring and marked tree correctly, as being about one quarter of a mile from Sinking creek, and on the south side. But the distance from Pittman’s station proved to be about one third less than called for. That error was fatal to that entry ; and shall this, in which the mistake is one half, be held a good one ? It cannot.</p> <p>The call for a west branch of Hinkston, would naturally convey the idea to an inquirer, that it was a stream that had not acquired a name ; and therefore, could not be designated by one ; and on this account would lead a subsequent locator to examine other branches, and not the well known stream, Clear creek. It is the deception which the omission to call by the appropriate name produces, that renders it fatal — See Speed vs. Wilson (a). There is, however, no proof here, that Clear creek was called by the name of a west branch of Hinkston ; and without proof, you cannot know the fact to be so. Gouchman’s entry calls it a south branch.</p> <p>If this entry is, then, shewn to be destitute of correct description, it is chimerical to attempt establishing it, by the notoriety of the ash saplings.</p> <p>These little trees were not objects calculated to excite attention. Their forks possessed no magnetic quality, which was to attract the woodsman to them. If the imagination of gentlemen, could transform them into ancient oaks and elms, and the rough hunters into early Britons, and make this the spot where they retired to perform their druidical rites; you might then credit' the semblance of notoriety which some of the witnesses give to this place ; but Without some such effort of the fancy, you will find in those depositions, an attempt, by leading questions, put to willing witnesses, to prove what is incredible in itself, and preposterous in the extreme. The face of the country; the pursuits of the woodsman, for-the idea. In addition to this, six or eight hunters, "'ho were conversant in this quarter of the country, swear that they had never heard of them at the date of the complainant’s entry.</p>

<p>When the de-feriptive calla of an entry give a wide held in which to fearch. for an objedt* nothing but a very general knowledge, at the date of that entry, amongfi thole who were acquainted in that quarter of the country* with the precife íituation, and fome individual char:*6eriftic of the objedf called for, could fup - port the entry.</p> <p>A better title to land cannot be defeated, rc-leafcd or estin-guiihfd, by a rniftake of opi-nio?), a confef fion of la w, nor the expr.-iSon of an intention by t-he holder not to proiecute it j akho’ that dec larationwere made to a third perfon who was then in treaty for the confiift-ing title.*</p>

<p>,. c In a cale ol baftardy, the thejuftkeought not to be read as evidence to nerfon"charged being the father ofthe dula, ihouid fee produced and exa-mineo m court.</p>

<p>. ■„ , . titling a in this court, the effeñofthé judgment; for the title muft tTk^Tn^con* junaion, with the original file lodged* record</p> <p>Neither will fuch imftake in of6 affirmance*1 fent out by th<; clerk alter the efFea of the af-fi™ anee in the court beitHV'</p> <p>damaged wihbe given again» thofe. de*en_ men*'only who protecuce a writ of ei'wt.</p>

<p>Rules as to the alignment of breaches in covenant.</p> <p>Where there is an ifluemade up on one plea, and an inquiry of damages awarded on a demurrer to aao-ther plea being adjudged good, a general verdict for dama* ges for the plaintiff is fuf-ficient.</p>

<p>It is not ne« ceflaryinall ca - fes in ejectment to makeoutthe tconne£led plat 'by adiual fur-yey.</p> <p>It is therefore no objection, in making ufe of the record of eviction as evidence, that the con-nedion was made out by confent, unlefs it beihewnthat an aétual iur-vey was necef-fary in that cafe.</p> <p>No better evidence Ought to be required of a legal eviction, than thd judgment ó/thé' court.</p> <p>A record of evi&ion whkH appears to be i. complete trim-feript* is good evidence on art action of -Covenant tínd warranty, without its being eertifi-ed to be complete*</p>

<p>When a bond has no date, an the' day0 of deli - very cannot be taken advan- ° j" properly quef. tloned in the</p> <p>U iffuahle, it °uSbt c* b? *1-</p> <p>if a bond be affi8?ed by S. declaration alleged it to be alignment rity ofs.&ould be qneftioned in 'he^ourt below canno^’b”" bone in this</p> <p>ration on awril ting affignabl* ’^w ftew * twa before the' alignment, it 18 unneceffary performance0 to the affignor,</p> <p>. ail uf doefnot extend to judgments by default.</p> <p>t8 fendant or bail on enterins a ment bydefault at the rules’ is £0““ of</p> <p>«⅛ T' J ’ '</p> <p>SetGano,&c. »97 Hart> ^</p>

<p>THIS cause was argued by</p>

<p>Díárefs for ren^ cannot be made on the day the rent becomes due.</p> <p>* But on that day an authority given to make diftref., generally, is good.</p> <p>An authority by parol to make diftrefs is</p> <p>The warrant ofdiíhefsmakeá no part of the record of the proceedings.</p> <p>It is not ne-cefTary to call á defendant before judgment is entered a-gainft him.</p> <p>The circuit court of the county in which thedemiied pre-miles lie, or to which the offi^ cer taking thé bond more ef-pecially belongs, has ju« rifdi&ion to enter judgment on fuch bonds.</p> <p>A bond given to fave property from dif-trets ior rent, is as good as if given to releafe it after diftrefs.</p> <p> See Hubbk-vs. Mullanfb},cr,tt </p>

ON the 26th, day of March 1801, Craig gave his bond to Morton, for 800/. conditioned for. the payment of 400/, on the first day of November ensuing; indorsed that the bond might be discharged by the payment of 150/. in cash, in June next ensuing, and 175/. in trade, delivered by the first of November. Craig, in 1803, confessed judgment on the bond for a balance of 66/. 12,?. 5d. He filed his bill in the Mason circuit court, to get relieved from that judgment.

<p>To take a cafe out of th$ ftatute of limi* tations, an ex-prefs acknowledgment of the debt, as a debt due at that time, or an ex-preis promife to pay it, muft be proven to have been made within the time prefcribed by the ftatute.</p> <p>In fuch «fes the court may either inftruft the jury as to the law, and leave them to determine the fa 61 ; or the court may,taking the whole evidence on the part of the plaintiff as true, and the fa&s fwom to by the wicneffea as í’uñ fkiently proved, initru£ the jury as to the law ariling upon thole fa&s.</p> <p>An iiTue informally made up, is good after verdift.</p> <p>Many of the Englifh decifi-©ns have gone unwarrantable lengths to e•vade the ftatute of limitations.</p> <p>A&s of 1807, -ih. 7, p. 23.</p>

<p>Irregularities in the clerk’s office, in iet-ting a caufe for hearing, ought to be corrected by an application to that court,</p> <p>, Jr'fuch application is not made, it is too late to apply to this court for redrefs*</p> <p>See Coleman vs* Harr ¡fon circuit court\ ante 171.</p>

<p>Where no ají» plication has been made tú the court below to correft errors or irregularities in an execution or indorfement thereon, this court cannot en. Certain jurii'diction to inquire into them.</p> <p>It feems the law is the fame as to every error or irreguiarityof the officers of the court fub-fequent to the judgment»</p> <p>Cofts not given under Ipe-cial circumftan-ces.</p>

TURPIN filed his bill against Bantdn, and, amongst other things, alleged that the defendant gave him a verbal authority to sell a negro, which belonged to the de-fgndant. That he had sold him accordingly. That jjanton threatened to bring suit for the negro, denying the authority to sell.

<p>The court will not 'receive a record on an appeal, though, by conientj before the tfermtó whith it is taken.</p>

<p>The court will hear motions for a dif charge of a fu-■j>erfecUai> or for additional fecu-rity, when the fecurity taken is an improper or infufficient perfon.</p> <p>A perfon who Is fecurity in a replevy bond,is not a proper fe-curiry m a ju« ferjedeas bond,, given on fuing out a writ of er* ror to reverfe a decree in chancery which dif-folved an injunction ftay-jng proceedings at law upon th« replevy bond*</p> <p>Rules of proceeding where the fecurity is alleged to be in-fufiicient*</p>

<p>⅞ da«a-ges a&fied by tumvaUblnt,or quantum meruit, j bee¡t^.af' ¡-,vej t0 induce a court to grant s new trial for that came a-</p>

<p>Thc authority given by the a£tot' 1797, to guardians to fubmit to arbitration the land difputes of their wards, is not repealed — See a£t?of 1796 7, p. 147, a, 1 Brad. 510 — a&s of I feC 1798,. ch 25, § 6, p. 57, 7 Brad. 57,</p> <p>A reference to arbitrators fn fettle and finallyadjuft the title to the following land,” and then reciting the entries tinder which thev are held,is fuifiJently certain.</p> <p>An award, good in part, & bad in part,may be fuppnrted as to that part which is good,</p> <p>An award which directs a conveyance of In.much of an entry and fur-vey as is covered by another furvey, is futfi-eiently certain.</p> <p>An áward, certain to a common inteht* is good.</p> <p>If an award relative to in-terieiing land claims, decide the relative me. rits of the claims, and the manner ot Purveying them,& then leave the boundary, &c.. to be afcertain-ed by Purvey, it is iuihcientljf certain.</p> <p>An award relative to an infant’s real ef-tate, which direíls a convei* anCe by the guardian, is goodat moft^</p> <p>An order of reference may £*u“a<le0^ir application of the parties, tu. 00⅛11⅛-Cuurt.</p>

A judgment was obtained by Byrne, in the Franklia circuit court, against Baker Ewing, and Asa Beall, his appearance bail. Execution was sued out against Ewing only, on which a replevy bond was taken, with Faught as the security. A writ of error coram vobis was prosecuted, and this variance between the judgment and execution, (amongst others) was assigned for error.

GAUNT brought his action,of detinue against Brock' pian, for some slaves.. A verdict was found, subject to the opinion of the court, on an agreed case, which is, ⅛ substance, that — ¾ Samuel Rollins, in the state of Virginia, being the owner of the slave Hester^ the mother of the other slaves sued for, in August 1780, sent Hester to Reuben Sullinger, who married, his, daughter Sally.

ABOÜT the year 1770, Joseph Morin died in Virginia; leaving a will, by which, amongst other thirigs, he gave several specific and pecuniary legacies, and the “réstand residue of his personal estate to his wife, Mary Morin.” ' In the yeár 177-, the executors, by a bilí óf Sale, reciting that the widow had paid debts for the testator, to the áriiount of 75/. — sold and Conveyed to her, in cón-sideratiori thereof, á négro womari and child.

<p>An attachment fued out on the fuggeftion that the defendant had either left the county & commonwealth) or fo abfconds himfelf, that the ordinary procefs of law cannot be ferv-ed on him,” is erroneous*</p> <p>See the cafe of M'Darnel vs. SappingtQtiy ante 94, and the cafes there cited*</p>

<p>THIS cause was argued at the spring term 1807, by</p>

<p>Christina Boffwan, as heiress át law of John Bpif-man, exhibited her bill in chancery, against James Hickman ; in which she claimed a tract of land lying on the waters of Boon’s creek, in Fayette county, by virtue of a certificate tor settlement and pre-emption, granted to her iii 1779, for her ancestor’s having raised corn, in dn the land. ’ ' _. " '</p> <p>Hickman held the land by virtue of a patent granted to him on the 10th day of April 1781, issued upon a ^urYey made in the year 1775, on a military warrant for 2000. acres of land, issued on the fth day of March 1774, by the then governor of Virginia, by virtue of the reSal proclamation of 1763. This survey was made by John Floyd, a deputy under the surveyor of Fincastle county, which county at that time included the land in "The plat and certificate of survey were not made out by Floyd, and returned to the surveyor’s office, until May 1780. Previous to that time the county of-Kentucky had been erected, which included the land ⅛ question ; and Floyd was then a resident qi Kentucky, cOunty, ’</p> <p>In the year 1774, an entry, by virtue of this warrant, had been made with the surveyor of Fincastle, for land on Hickman creek, being some miles distant from where it was surveyed.</p> <p>It was proved, by a deposition and receipt in the cause,, that in the year 1779,M’Clanahah, as agent for Hickman, received this warrant from the surveyor of , 1 ⅛,.„ v r . . , i - .. • " mcasue. What was done with me warrant aitei> wards, did not appear.'</p> <p>The* complainant also set up an agreement, with an agent of the defendant, that he should withdraw this survey ; but this point was not insisted on in the argument. '' ‘' ' " '</p> <p>Before the hearing of the cause., ⅛ the Fayette circuit court, the parties entered an agreement of record, that eA^er of them might, at any time before fhe trial in this court, file such records, &c. “as relatedfo theirrespec-tiye titles.”. ’" ’ ' ‘ ’</p> <p>That court entered a decree in favor of the complainant. Hickman appealed.</p> <p>Before the argument here, the appellee filed, a certifi-pate of the registefof the land-office, dated the 3d day pf May 1808, that‘⅜ He does not discover, from an examination of the survey, that a warrant accompanies it.”</p> <p>Our claim to the land in question, if it be good at all, is elder and superior to the claim of the appellee. The sprvey tpade by Floyd, in 1775, was made in pursuance of law, and the usage and custom oi the offices under the regal go-vemment; and was, under it, an appropriation of the land.</p> <p>The first act claimed under by the adverse party, (their improvement) was illegal when made, and was no appropriation of land. It is therefore immaterial whether their claim be founded on a village right, or an actual settlement; for ours is superior to either. But if the claims were to have preference from the first act done, our suryey was elder than their improvement.</p> <p>The confirmation of these military surveys by the act of 1779,† was not necessary, on account of any informality or insufficiency in themselves ; but haying been inchoate gifts, from the regal bounty, it was questionable whether the government of Virginia, after the revo- ,. . , i , . fution, were bound to complete these titles. But having done so, the confirmation relates back to the survey, and our right commences with it, if we have brought opr-selves within the law — See the cage pf Mays vs. Hamilton, Wythe’s reports 36, &c.</p> <p>Our claim was, in the court below, and no doubt will again, be objected to, beeausp the plat and certificate of survey were not returned to the surveyors office, as early as it ought to have been. But the court will find, in 1 Brad. 393 and 324,‡ that the time for returning filats and certificates of these kind of surveys, was pro-onged until the first day of July 1781. A survey1 returned within thp period thus given by the law, is as ya-lid to eyery purpose, as if it had been returned the day after it was made. _</p> <p>This claim was also attacked, because of the entry made on this warrant, for other land, previous to the survey in question.</p> <p>In deciding this question, the court must not he mis? led, and apply the rules of the land law of 1779, to cases prior thereto.</p> <p>Previous to that law, there was no act of assembly au-thorising an appropriation of land by entry. There was, however, under the orders o,f council, and usage of office, on appropriation by entry permitted, provided the quantity did not exceed 400 acres — -See acts of Virginia of 1748, body of laws 219, 220, and Wythe’s reports, page 40.</p> <p>The records of the council were destroyed by fire, during the revolutionary contest ; and the usage of the of-t fices, is to be collected only by experience in, this kind ofbusiness.</p> <p>Prior to the law of 1779, appropriations qf military, warrants, were made by survey only.</p> <p>The entries, therefore, which, were made on military warrants, were no appropriation of the warrant, nor of the land j but the land was subject to be. taken by an actual survey, and the warrant to appropriation elsewhere.</p> <p>The entries were intended; as indications, to the surveyor, of the wish of th.e party, to appropriate the land — > as his direction to survey it in the absence of the proprietor, when it vyould be convenient, or. safe, to the sur-? yeyor.</p> <p>That the surveys, and not. entries, were considered as appropriations, see 1 Brad. 292, 293 (a). The legislature confirm the surveys. If they had considered entries on military warrants, as appropriations, they would have (¿onñrtned the entries and: surveys made thereon, and not the surveys only.</p> <p>It could not be material to us, whether the entry were, or were not, considered an appropriation of the warrant; for the survey, whether, legal or illegal, when, made, is confirmed by the act of 1779, above refered to.</p> <p>It has been further objected to, this claim, that the, warrant on which this claim was bottomed, is not now. found in the. register’s office.</p> <p>This objection admits of several answers. This is a, point not put in issue by the bill. It is a question not made below ; and is bottomed Upon the certificate of the register, now brought into the cause for the first time. The agreement below, only authorised filing the titlu papers of either party ; in other words, those which Were necessary to make out the title of either party. It could never have been intended; to authorise either, to exhibit papers to make out a new cáse, different from the one decided on below.</p> <p>But if this Question were properly before &e court, it could not avail the appellee. The warrant was in the surveyor’s office, when the survey was made. It au-thorised and gave validity to the süryey. And the laws of Virginia, then required the warránts which Were satisfied, to be cancelled — See 1 Brad. 318 (a). This law was not repealed until 1789 — -See 1 Brad. 341, § SO (b).</p> <p>If this would not account for the absence of the warrant, it was the duty of the register not to issue a patent without the warrant (c), and it is presumable that he did his duty. The presumption of law, is, that every officer does his duty ; and the contrary, if charged or relied upon, must be proved, although it may be a negative —See í Rol. Rep. 83 — Bul. N. P.298 — Viner,title, evidence — Comb. 57 — Gilb. law of evidence, 146.</p> <p>Our claim to the land in question, is founded on an actual settlement; the identity and notoriety of the objects called for, have not been questioned, either by the pleadings or arguments. Our right to the land must therefore be valid, unless the appellant’s claim is valid and superior to ours.</p> <p>It is true, the act of 1779, confirms surveys made under military warrants; but it is pot every marking of trees in the woods, which constitutes a survey. It must be done under sufficient authority, with an intention of appropriating the land ; and the acts evidencing that intention, which the law has prescribed, must also be done. After a survey is made, a plat and certificate must be made out, and recorded in the surveyor’s office, within two months, as evidence of the intention of the party to appropriate the land; and to perpetuate the boundaries thereof — See acts of 1748, body of Virginia Laws 220. Until this is done, the survey is subject to alteration by the party for whom it was made, at his will; of by the surveyor, for any inaccuracy in it. It cannot, therefore, be said to be a survey within the law of 1779, until this is done.</p> <p>That surveys of record, were those intended to be confirmed, and no others, is evident from the law’s having directed the surveyor’s books to be brought before the respective boards of commissioners (a). This was certainly intended to enable the claimants and commissioners to avoid appropriated lands. The survey ⅛ question, was, therefore, not complete at the passage of hw of 1779, and cannot, therefore, come within its provisions.</p> <p>But there áre other objections to this claim. This survey is said to be made in 1775, by Floyd, then a deputy. A plat and certificate of survey were made out by Floyd, in 1780; after Fincastle county had been del stroyed, and others erected in its place. Floyd was then a resident of Kentucky county, and riot of Montgomery county, which, by law; retained the Fincastle officers, papiers, &c. He had, therefore, ceased to be á deputy surveyor of Fincastle ; and a plát and certificate of survey, made out then, by him, wás as unauthorised ; as illegal arid Void ; as if it had been made out by a person who never had been a deputy surveyor of that bounty.</p> <p>If, therefore, the patent has beeri obtained upon this illegal plat and certificate, it must surrender to a valid settlement and pre-emption, regularly carried iiito grant* It will be peculiarly hard, if, as the fact was, when our claim was granted; and we appropriated the land, there was not a scrape of a pen on record, to notify ÜS of Hickman’s claim ; nor even a warrant in the surveyor’s office, to put us upon the inquiry ; and yet, by a surreptitious certificate of survey, our rights are to be overhal-ed and prostrated.</p> <p>Another fatal defect in the claim of the appellant, is; that the warrant had been entered, before the date of the survey, on other lands ; which entry had not beeri withdrawn ; and, therefore, the claim, according to well established rules, can only take date from the patent;</p> <p>It has, however, been contended that an entry was not an appropriation of the warrant. I agreé with the counsel for the appellant, that there was no áct of the legislature, previous to the act of 1748, refered to by him, which speaks of entries. It was authorised by the orders of council, and the usages of the oflices. In the case read by Mr. Hughes, chancellor Wythe recogni-ses as law, the practice of making entries. The Set read by him, speaks of máking entries, as a matter of right. And the right to make the entry, must be as extensive as a right to appropriate land; If the person applying* appropriate ,4⅛0 acres Only, he could enter but 400 acres : but if be could appropriate more, he might enter as much as he Cpidd appropriate. The fact that entries were made on military warrants, shews that the practice and usage did authorise it. If it were authori-sed, some benefit must have been derived from ⅛ or it would not have been done. Suppose an entry, ánd ⅜ subsequent survey, made strictly in pursuance thereof, were to interfere with another survey, older than that Survey, but younger than the entry ; would not the oupger survey relate back, and attach to the entry, and old the land ?</p> <p>If, therefore, an entry ón a military warrant, could, in 1774, appropriate land, the appellant’s warrant did, in that year, appropriate the land on Hickman, and could not, by the survey of 1773, appropriate other land. For after a Warrant has once appropriated land, it never can appropriate other land, until it is confirmed by a patent, or unless it be withdrawn.</p> <p>A further defect in the claim of the appellant, is, that there was no warrant returned to the register’s office, to authorise the issuing the grant. It is, however, answer^ cd, that this pqjrit is hot put in issue by the pleadings* It is true, it is not specifically named 1 but the plead* lags .state ogr claim to be the better one, in the usual manner, ;n bills pn adverse titles. It never has been held, and cannot be, that you must, by the pleadings in these kinda of suits, point out the weak part in your adversary's title. The equitable title is put in issue, of course any thing which goes to shew that we have an equitable title, and that they have not, is within the issue.</p> <p>Hcither will thé answer, that the papers We now fi!# ⅝⅝ not within the agreement of the parties, avail the apr, pedant* Any records, &c.( relating to the titles qf either party, is within the agreement, these ate document!* fyom the register’s office, and relate to the title Of the appellee, ,ao4 aye within the lettef and meaning of, the agreement.</p> <p>The cases refered to Oft the other side,. relative#, the presumption pf law being ⅛ favor of an officerVdátig <jluty, are cases qf prosecutions against office»®, Or in the nature of prosecutions, and in those cases the pre« sumption is in favor of innocence. That dbctrine will not extend to civil cases.</p> <p>It is not, however, necessary to controvert that, rule here. We shew that the warrant was not in the survey- or’s office, when the plat and certificate were recorded, but had been withdrawn by the agent of the appellant. The warrant could not, therefore, authorise nor support the survey. See the case of Jones’s heirs vs. Taylor’s heir and Lee (a), where it was decided that if there were not a warrant in the surveyor’s hands, to authorise the survey, it could not hold the land against an adverse claim.</p> <p>As we have shewn that the warrant was taken out of the office by them, they must shew what they did with it. There is no presumption of law in their favor.</p> <p>If, as has been conjectured, the warrant was burnt, upon the emanation of the grant, they could shew it. The law made it the duty of those who burnt the war-ran.ts5 to keep an account of them (b). They might, therefore, shew that the warrant of the number called for in their patent, was burnt. But its absence is easier accounted for, by adverting to that part of the law which authorises these warrants to be exchanged for others, 1 Brad. 293, § 3 (c), and thus appropriated.</p> <p>If the land law of 1779, had intended to confirm those surveys only, which were 01 record, it would have been easy to have expressed that intention, by using the words “ surveys of record.” It could not, therefore, have been the intention of the law. It would have been unjust and unequal to have so enacted : for no law, prior to that time, limited a surveyor as to the time in which he was to make out his plat and certificate. And even this law did it indirectly, not directly. It required them to be registered, in a given time ; and they could not be registered, until recorded in the surveyor’s office (d).</p> <p>The provisions of the law, requiring the books of the surveyor to be produced to the commissioners, were directory and precautionary only; not necessary to give validity to the claims therein recorded. If the books 'had not been produced at all, it could not injure the right of those, the evidences of whose claim, were thus withheld.</p> <p>To contend that the recording constituted or made a part of the survey, is like pursuing the shadow, or identifying it with the body which causes it.</p> <p>A survey is the marking and abutting of the land. To be a legal one, the surveyor must have a warrant for so doing. If, when he made the survey, he had such a warrant, the right of the party to the land surveyed, is complete ; and making out a plat and certificate thereof, is but the evidence of that right, and for the purpose of perpetuating that evidence.</p> <p>If there were any thing improper in this business, it was the improper conduct of Floyd, in not returning his works as soon as he might have done. This delay might have been procured by Boffman, and for his benefit. We could not prevent it. And shall the neglect of an officer of government, not under our control, jeo-pardise or impair our right ? It surely cannot.</p> <p>But it is said, that Floyd had no authority, as deputy of Fincastle county, in 1780 ; and therefore, that the plat and certificate then made out, was void. It maybe admitted, that in 1780 he had no power, under his former deputation, to make surveys. But he had authority to perpetuate the evidence of what he had done, while in office : as a sheriff who executes process, while in office, may make return thereon, after he is out of office.</p> <p>The question relative to the entry made on Hickman*» warrant, must be decided by the laws and customs prior to the land law of 1779. That law requires that surveys should be made in conformity to entry. But there was no prior act of assembly, nor usage, or custom, which required this conformity j and the act of 1748, and opinion of chancellor Wythe, read by Mr. Hughes, shew that the entries alluded to. therein, were bur. for 400 acres. The entries on military warrants, were indications of intentions to appropriate, and might be completed or abandoned by survey. Perhaps not an instance can be found in the surveyor’s books, of a formal withdrawal of one of these entries. The warrant isa direction to the surveyor, to survey, not to enten land. It could not, therefore, be satisfied by an entry, but remained in force until the survey was made. And even if the entry were considered an appropriation of land, the survey must be considered a virtual withdrawal, and re-appropriatiott of the warrant. When the land law of 1779 passed, it was known that surveys, could not, from the times and dad-gets, oft the frontiers, he made, Warrants ⅜⅛⅛⅛ íhófé-? Í9re directed to b;e entered, Utíd thé surveys to Be made in conformity thereto. This was a neW fégulatlbfi, Unknown theretofore, and not applicable to cut Claim.</p> <p>The law of 1779, Confirming these surveys, üses thé expressions, ‘-‘surveys made on Warránts,’* not oft, dr ⅛ pursuance of entries. Whether they were, or wére hot, iriadb in pursuance df the entries, must be lAhiatCrial, provided they were made before the first day of January 1778, fay á legal surveyor, under a warrant founded <jn the %ing of Greát Britain’s pf oclátóatibft, of 17 63, Thfa object q| the law, Was, to quiet uncertain clairiis ; to givé them absolute validity ; leaving the identity df their boundaries dtíly,to be questioned, if the Claims were attacked by subsequent tights.</p> <p>To the arguments on the remaining points, I reply,that We cannot, from iffié account kfapt at the register’s, office, df thé wárranfs destroyed; shew the riüthfaefk df the warrants. The accounts kept, were of the uggre«ate ártióuñt destroyed ; not df the particular WarrkntS estroyéd. An inquiry at the office, Will shew Í ⅜⅛⅝ Correct.</p> <p>The presttmption of law, that aft officer dóes duty, holds both in Civil áftd criminal CaSes ; arid thé Authorities, refered to will prove it. The register Could not legally have received Our plat and Certificate, with-i put ⅜ ^arrant. Bl’Cl.anahan, after having withdrdWft it from the surveyor’s office, must have kept it, ánd rer turned ⅛ to the register’s office, With, the plat arid cer-. tificate. The appellant was entitled to take both froift the surveyor's office, find hpurid to lodge both, ita the register’s office. His having received Ofte fey his Agent, previous to th’e other, does not destroy the preSütoptióft. that they were returned together. It Would Be ás easy to rCtqrn i;he plat, and withhold the Warrant, after &4⅜ Were taken Out df the surveyor’s Office together, As if Would be if they Were taken out separately.</p> <p>The presumption of law cannot be cóühtér&téíi, Brit fay positive proof that thé Whtránt was riot rétíUrhed, <& Was elsewhere appropriated.</p> <p>The case pf jMnes^s heirs its. Ttiylorh heif, ⅞⅝. (a) ⅛ not applicable to the present. In that casé, there Was nd Warrant in the surveyor’s Office, dr hands, %t the time of making the- survey, to áíithtífisé it; ⅛⅛⅜ thé Watfiffit Which was afterwards lodged, was a war* rant to survey for jdnes, and not for Strcrther and Jones; áñd Covild not make valid foe illegal survey theretofote ihade. In óur case, there was a proper Wafrant when the Stlteey was made* and the question is, whether it wére Of Were nOt returned to the register’s office.</p> <p>It is to be recollected, that the warrant is a loose pat* per, kept in the register’s office, subject to be lost or destroyed by accident, of the design of any person who may have access to the office; These papers too, have Been removed from Virginia here. And precarious indeed Will be our land titles, if the loss of such a paper, after the emanation of a grants is to destroy the right to the land, A patent should be held sacred, unless thete be thfe most conclusive proof that it was obtained by fraud* dr Without foundation,</p>

<p>THIS cause was argued at the spring term- 18©7.</p>

<p>Anentrycaii. ing for the forks °0f *u”ee„k’ down, how tubs forveyei.</p> <p>Several entries fucceffively adjoining, & running down on both fides of a creek» how to feefurveyed.</p>

ON the trial of an ejectment, in the Shelby circuit court, an agreed case, which, substantially, exhibited the following facts, was brought before the court.

<p>Writs of error ft t,m ‘"‘‘ole’ cuted- ¾ within the time prefcnbed by the aft of 1802. dr they may bé difmiffed.</p> <p>Thitthereis no leal to the fignature of the fecurlty in the replevy bond, does not take the cafe out of the limitation of that</p> <p>See Blackburn vs. Bilbo, sSftr. foji.</p>

<p>If the record ftates that no-áce ofa filed,'''hmuft be prefumed the and Cef”ffiS lent* until the wl-trary is made aPPe“*</p>

CLAY produced the record in tills cause,in court ; assigned errors, and moved for a supersedeas ; which W as overruled. He then moved for leave to withdraw the transcript of the record, as it was probable his client would wish t o apply for a writ of error cor am vobis ; and, in that event', it would save him the costs of another copy. ‘

<p>THIS was an appeal from a decree of the Bourbon, circuit court. It was argued by</p>

<p>Conftruflion ofan.ent7,de* ⅛ in part on de-fcribed objefls, 1" diftanceSon°a water courfe.</p> <p>^*e ⅛'°“* recover more land than the defendant of* fwer t0 convey¿ he ou ght not to re“ver fuU</p>

<p>THIS cause was argued by</p> <p>In the course of the argument, the following remarks wer* made, by</p> <p>— In Ais case, it will be seen, that part of the land covered by the settlement entry, has not been surveyed in the settlement survey, but has been surveyed and patented under the pre-emption warrant. And ift like manner, part of the land covered by the pre-.enxp^ tion entry, has been omitted out of the pre-emption survey, but carried into grant under the settlement, claim; The court must, therefore, decide, whether there be such an intimate connection between a settlement right, and the pre-emption appendant thereto, that a patent founded on one, can be cohnected with, and supported by the other. This question has been several times argued in court, but never fully settled. I have contended for the affirmative of this proposition ; but if I have been mistaken, my clients in this case, will be entitled to the benefit of the contrary doctrine.</p>

<p>AFTER a judgment in ejectment, by confession, it» favor of Baker, against Crockett, the parties mutually entered a submission to arbitrators of their rights ta land in question, according tothe act of assembly concerning awards. †</p> <p>Raker claimed under-. Van Swearingen’s settlement and pre-emption ; Crockett claimed under James Hen-. derson’s settlement and pre-emption. Henderson’s set-^ement an'l pre-emption, of 400 acres, was entered to lie “ on the trace from, Roonsbarough to the lower salt spring on Ricking, called the Sycamore forest, and runn¡njr down the creek for quantity</p> <p>The entry oi the pre-emption right ot 1000 acres, was, ‘⅝ Lying on the trace from Roonsborough to the low-, salt spring on Licking ; joining his settlement at the 1 o ' ° o Sycamore forest, all around,; and to run down the creek for quantity.”</p> <p>The arbitrators, on the 2nd day of March 1802, awarded, that Van Swearingen’s entries could not legally take any of the land in controversy.</p> <p>They also decided, that Henderson’s entries were valid ; that the call “ running down the creek for quantity,” must be rejected as uncertain, it equally applying to Johnson’s fork, and to Hancock : and, that the settlement should be surveyed in a square to the cardinal points, with the improvement in the centre ; that the pre-emption should be surveyed in a square, around the settlement, with lines parallel thereto, and equidistant therefrom. The award refered to objects laid' down on the connected plat; stated that the legal claim of the plaintiff must yield to the superior equitable claim of the defendant, and then proceeded as follows, to wit :</p> <p>“ And from the connected plat before us, it appearing that the claim of the said Henderson is already laid down, conformably to the foregoing opinion ; and, that the interference between the purchase of the said plaintiff, and that of the said defendant, is 85 3-4 acres; therefore, we do award, that the surveyor of Clark county, do go on the land in controversy, and plainly mark and bound the said 85 3-4 acres ; and, that the plaintiff, by a deed containing a covenant specially warranting the said 85 3-4 acres of land, against himself and all others claiming from or under him, do convey, on a day to be fixed by the court, the said 85 3-4 acres of land, to the defendant,”</p> <p>The connected plat, returned with the award, shewed the improvement, lying about 470 poles west of Strode’s creek, on the trace which, led from Boonsborough down that creek, towards the salt spring, and about half way between Johnson’s fork and Hancock, branches of Strode’s creek, and about 170 poles from either.</p> <p>This award was returned into court, and the parties waived any exceptions as to there not being fifteen days between the date thereof, and the court to which it was returned.* Whereupon, the award was made the interlocutory decree of the court, and an order of survey made.</p> <p>Upon executing the order of survey, under the award, it was found, that the surveys of Henderson’s settlement and pre-emption, were too large, having surplus land in them ; and, that upon laying off the quantity of 140Q, according to the directions of the award, that th& interference would be only 77 1-4 acres, and 31 square poles.</p> <p>After entering the interlocutory decree, Baker died. His heirs entered their appearance to the suit, and at the August term 1805, of the Bourbon circuit court, that court, by their final decree,, reciting the substance, of the award, the death of Baker, &-e. proceeded—</p> <p>“ And whereas it appears by a certificate of the said-arbitrators, that their award was predicated on a supposition, that the survey of Samuel Henderson’s settlement and pre-emption, under which the defendant,, Crockett, claims, contained only 1400 acres ; and, that if there is a surplus, it ought, by a new survey,, made in. conformity to said award, to be excluded as it was.not the intention of said arbitrators, that said Crockett should1 recover it.” And then, reciting-the substance of the survey made under the award, proceeded to decree and order, “ That the representatives of John Baker, deceased, to wit: Joshua Baker, &c. do convey to James. Crockett, within six months after they severally arrive at the age .of twenty-one, by deed, containing a covenant, specially Warranting the said 77 1-4 acres and 31 square, poles, against themselves, their heirs, &c.</p> <p>Frqtn this decree Baker’s heirs appealed.</p> <p>Hardin and Bledsoe, for the appellants (a). — The first error assigned, “That the award is interlocutory, and not final,” has lately been overruled by the decision in the case of Galloway's heirs vs. Webb (b). But this award, is liable to other exceptions. The quantity of estate to. be conveyed to Crockett, is not decided, either by the award, or the decree of the court. Whether an estate for years, for life, or in fee, is to be conveyed, is.left uncertain. If the common law rule of construction is to prevail, the appellants would not be bound to convey-more than a life estate. The act of assembly altering that construction, extends to contracts and conveyances only: not to judicial proceedings (c). They should^ contain absolute certainty, and not leave for subsequent adjudication, the meaning of an award or decree — See. 1 Bac. Ab. (Gwil. Ed.) 302, 218.</p> <p>Another and more important objection to this award, is, that the arbitrators have committed a plain, mistake, of both law and fact; manifest from the award, and the connected plat, and the proceedings under the award.</p> <p>When parties refer their disputes to arbitrators', it ⅛ to obtain the decision of the law upon their controversy, in a more expiditious, and less expensive mode, than ⅛ the courts of justice. As far as arbitrations answer this purpose, they should be encouraged, and exceptions to form disregarded. But when they defeat this end ; when they do not pronounce the decision of the law ; but make an award erroneous upon its face ; it should ⅛ set aside, or they will be made the instruments of injiiS-tice.</p> <p>It has', therefore, been laid down, that a plain mistake ©flaw, or fact, apparent on the face of the award, is a sufficient cause for setting it aside — 2 Vern. 7"05 — 1 Atfc* 63 — 3 Atk. 494 — 1 Bac. Ab. (Gwil. Ed.) 339.</p> <p>That the arbitrators, in this instance, have not pro* itounced the decision of the law, is manifest. By refer* ing to the connected plat, they make it a part of the a** ward : without it, the award cannot be understood. Indeed, few decisions on interfering land claims, whether by award, or the decree of the court, can be un der* stood, without the help of the connected plats. They form a part of almost every decree. From the! face of the pfcit, in this ease, the settlemeajljygit^ttfciiBocterson,-may be surveyed, it is true, to r r&% er to run down Sanecck, eilhcnt: *$nt n i ay be Smwey e el as this court decreed in the cape of v Rice,* at the spring term 1807⅜]⅛⅞& ⅜⅛⅞⅞&⅝-⅛e which goes the general course of Strode1s creek, of which the others are but branches. But if it were doubtful which of these modes of surveying should be pursued, that would not justify disregarding the call altogether j and thereby making the entry cover land far above the improvement, which the locator never could have intended to include : nor could any person ácquainted with the spot, ever have supposed that the land now in dispute, Was intended to be appropriated by Henderson’s entries.</p> <p>Survey the settlement to riiri down any of these water courses*, and neither it, nor the pre-emption, can cover the land in questiom No rule of decision adopted by this court, has ever justified rejecting a call which applies to notorious objects, and will assist in giving figure to the entry» If the uncertainty is insuperable, it might destroy the entry ; not give it other land, that could not have been contemplated»</p> <p>The error of fact in this case, is as palpable as the error of law. After having stated the manner in which Henderson’s settlement and pre-emption should be surveyed, they decide that they have been so surveyed, and that the interference is 85 3-4 acres. This is now given up as a mistake in the quantity. After the arbitrators had awarded to Crockett 85 3-4 acres, the award was beyofid their power ; they could neither alter nor amend it- — See the case of Fitzgerald,, Wc. vs. Fitzgerald¿ IFc. decided at this term (a).</p> <p>The certificate refered to in the final decree, does not appear in the cause ; and if it did, could not aid the case. As to this, it is an award relating to but one subject matter : if it is void or erroneous as to’part, it is so as to the whole.</p> <p>The attempt of the court below, at curing this mistake of the arbitrators, by decreeing a conveyance of on-, ly 77 1-4 acres, and 31 square poles of land, furnishes another fatal objection to this case, as noticed in the sixth assignment of error — That the decree does not pursue the award, but is variant therefrom.”</p> <p>The court also erred in entering a decree against Baker’s heirs. A submission to arbitrators, determines by the death of either party — 2 Vera. 444 ; and the arbitrators cannot proceed. Here, though an award was made, that award was not final : it formed the foundation of an interlocutory decree ; and until the award was made effectual by final decree, it should be considered but in fieri ; and therefore determined by the death of Baker, and was not at all obligatory on his heirs.</p> <p>An award, certain to a common intent, is sufficient. This award decides that Crockett ha sthe equitable title to the land, and Baker the legal ; and therefore, that Baker shall convey, with special warranty. This shews that the conveyance must be of the whole title which he has to the land awarded to Crockett.</p> <p>It cannot be denied but that cases may be found that lay down the.rule, that if arbitrators mistake in a plain point of law, or fact, apparent on the face of the award, their award may be set aside. But what shall be considered a plain mistake, is yet to be decided. It is also true, that this court, in the case cited, have put a construction upon Henderson’s entries, different from that put on it by the árbitrators. But a difference of opinion ⅛ the construction of an entry, never can be considered a mistake inlaw. It is frequently, and in this, was, in fact, the principal point in controversy. If it is to be considered the ground of setting aside an award, no award on that subject, will stand, where the court differ in opinion from the arbitrators. An arbitration will be only the introduction to a suit. This kind of cases must ⅛ considered'misjudgments ; and atyiward will neves1 be set aside for a misjudgment.</p> <p>The mistake in the quantity of acres, was one which the plat before the referees, led to : but as the arbitrators directed the mode of surveying, and required it to be done before a final decree was to be pronounced, the mention of the quantity, was immaterial. And if the land covered by the principles laid down in the award, is not as much as the arbitrators supposed, it cannot vitiate the award ; but it will remain valid, for so much land as is embraced by those principles. The inferior court, therefore, did right in decreeing a conveyance of the 77 1-4 acres and 31 square poles only.</p> <p>The award, when made, was valid and binding on Baker. It was then complete. His death cannot, therefore, avoid the award, any more than it would the interlocutory decree of a court, in an ordinary suit. The award, when the suit was revived, remained as effectual against Baker’s heirs, as it was against him in his lifetime.</p>

<p>If an «ecu-tor or ad'minif-trator lets judg. itient go againft him by default it amounts, in law, to a con-feflion of affets to the value of the judgment.'</p> <p>When an execution iflues on fuch judgment againft the ef-tate ofthe leftator,or inteftate, In his hands to he admihifter-ed, if he do not pay the debt, or produce affets jfufficient to pay J*» wberebUhe edtoreturn ⅛ bom, the exec“tor or. admJty ot- a ¿maj¡^ ¾*.</p> <p>He thercby makes the debt his own> & the plaintiff may aitlon thejudgment»-gainfthim.tobe ou* and chjttd°°</p> <p>Thefe gene-“1 adnut t¡ons exceP-</p> <p>In an adba ?f debt» on * judgment, the defendant cannot plead any h ⅛ t0 ®ave pleaded to the former</p> <p>erba] greemeJ ^,ad¡ by a plaintiff, ,not to ufe » operation, can",°¡ta!(e¡npiba|ied anaaionofdebt founded on that</p> <p>0p de(,t againft an executor or tereft muhefor" mer judgment be tecover- *</p> <p>Thechriftian fendanf'&'tRe damages, having been left bUnk m ⅛' declaration,will not vitiate after verdia.</p> <p>1 compei a party to jom in a de. dcnce' *° *T1</p> <p>plea ofmtltieirecord, n' the record be feaiy or par-tiaiiy, it isi'uf-the matter in difpute.</p> <p>A variance in an immaterial part, is nut ta-tal. .</p> <p>a variance m is fatal, & ihaii be adjudged a tord"* °f rC"</p> <p>The plaintiff declared on a judgment, exe-eution thereupon,and a return vf nulla bene, m nectar *1 ⅛”* make out his t'd6 to a recovery : on the record, a tran-fcript of the reduced^which contained no execution nor .teturn, but m ira7 ottier ndeclared on.— 1 his Tariance</p> <p>trarrfmpt hav-inSbeencertifi-c^’ piece; a c^py ft >n execuib» & r< c.urn'-.°rref' ponuing tn.-re» wi-b,innan^ lunl;> &c-canu> cure the vc-ru»ce*</p>

<p>After a plea has been enter-edincourt, and th'~iCjUíe T rules, it is er. roneous to give a rule to plead, ment for want of a plea. An been^mlde”* on the plea. P</p> <p>_ On reverfing ‘judgment,,r.~ ings, which would not have *f thcDlfelves ^“f^ca“fe °e ”dv“ a ’ et ⅝"</p>

<p>An award de-ftftíyc aB.? un-be eoforcei by a court of chan-cery-</p> <p>. d(,"0a the omiifion to file a *copy of one of feveral entries which it calls for, is fatal to it, provided the entry omitted, could have fuch calls as to give the entry in queftion different petitions, one of which would be entirely off the ground covered by another*</p>

<p>THIS cause was argued by</p>

MORRISON, the appellant, exhibited his bill against Edward West, Henry Clay, and others ; praying, among other things, for an injunction, and for relief against a judgment at law, obtained against… Held: that if an obligor induces a third person to take an assignment of his bond, under an assurance that it will be paid, he thereby bars himself of all legal and equitable objections against the payment.

<p>The toanner *>f furveying an entry, dire£fced, which calls to run fouth & up a river for quantity.</p> <p>The manner of furveying an entry, dire&ed, which calls to include aknown bottom» when the bottom does not include the quantity called tor, and borders on a crooked water courie.</p>

<p>Omitting to file a caveat a-gainft the emanation of a grant on conflicting land titles, does not prevent the party from re-lordng to a court of chancery, to have the titles tried there.</p> <p>The holder of one conflicting title to land, having an equitable lien upon a fuperior conflicting title, will not prevent the latter from prevailing in a fuic brought to try their validity</p> <p>Notoriety ought not to be difpenfed with, when put in if. fue.</p> <p>If not put in 3 flue bytheplea. dings, it need not be proved.</p> <p>Circumftan-tial evidence of notoriety,is fuf. ficient.</p> <p>Anentrycall-ing for the land of A. when A. had a . créificate for a fettlement & pre-emption, and the *ettlement entered with the lurvey. or, but the preemption entry not made ; con llrued to mean a call for the fettlement on-lv.</p> <p>Directions for iurveying anen. try-Widch calls to lie on a water courfe, and to include an improvement.</p> <p>Directions for furveyingan entry which calla to adjoin the N. W. fide of another entry, and to include a fpring,&c.when the other entry prefents a N. W, corner, and not a N. W. fide.</p> <p>See JaJptr & a-tbers vs. Quarles fifi</p> <p>See the <*⅛ f'T"5' i -.o — and Me. rmutbervs.Hitt ^r^ec‘</p> <p>Seeaifcc^g m- & _/⅞*«.«/ rLng, ft|iterm 1808, here*</p> <p>See the cafe &*•>'■• f*»* m. Pr.Dec.</p>

<p>On the trial relating to a public road, the l-rif^ofTheo”* der of the county court eftab-hfhmg the road, cannot be inquired into; but it is final & conciufive, un-tu let ande or reverted by the court of appeals,</p>

CROW’S heirs having the younger patent to the land in dispute, instituted a suit in chancery against Brown, to compel a conveyance of the legal title. The cause came by appeal into the court of appeals. t-vt i .«.i- -i -i > t-vt i .«.i- -i -i > In November 1801, this court pronounced, a decree principally in favor of Brown-^See Pr.

<p>THIS cause was argued by</p>

<p>The difcove-ry of new wit-neífesto a point in iflue, or to a point which the party knew oí, and failed to put jn iifud, in the former luir, is no caufe tor a bill oí' rsv«w0</p> <p>Met. Pletd. 785 73’</p>

<p>Anaítíon of tfiiMpfitmn not he m favor of the truftees ofa town to recover damages for the papers, records, &c. belonging tíon**6 corpora'</p> <p>form ahion to reeo-fi'rrccord?^&c’ muft be púrfu-ed- .</p> <p>enter'judgment againft a defendant who has <m whom'p’* cefs has not been ferved.</p>

<p>A fuitinchan, eery may be removed to ano.* ther court for trial, by theory der of a judge directing a. change of venue.</p> <p>In calculating the thirty days which the order ftould be iodg* ed, before the term, to entitle the, p?rty to a change of venue, the day of deposing the order ihould be included, & the firft day of the term excluded from the calculation-</p> <p>If after arvorr derfora chang,e of. venue has been legal;'1 ppftted '<live clerk’s oiiice^ that court pro-» ceed in the caufe, it is error.</p>

<p>Under the plea of ml debit to an action of debt on a penal fta-tute, the ilatate of limitations may be given in evidence.</p> <p>If the plaintiff fuflrer a non-fuit, he cannot, l>y writ of error or appeal, procure a reverfal thereof, on account of any erroneous opinion delivered in the progreic of the caufe.</p> <p>Efp. Ni. Pri. 2,62 — Pr, Dec, 338, Owens vs, Pennybaker — 2 Saund. 63, ⅛, ¼ ms. notes*</p>

<p>THIS} was a controversy for lapd, between, settlers, under foe laws of Kentucky, on one side, and the bolder of a' conflicting military claim, on the other.</p> <p>I he former, who were complainants in the court below, and; appellants in this court, made their, improve-merits, respectively, in the year 1796; and settlpd thereon, one in the fall of that, year, the. others in the enduing spnng, Qn the 10⅛ day of August 1798, tftey applied; tó the commissioners appointed for that purpose, obtained their certificates, specially describing the lands in controversy; which wiere duly entered wdth.the aprT veyor, in the same month. Surveys made thereon were duly recorded and registered ; but grants were, not obtained, owing to the liep retained by tfie, state, for foe phyrpen| of thq purchase money in tsielve an,nu^. ⅛§1⅜1-</p> <p>. The appellee claimed under an entry made for Bpr? pard Lipscombe, on á military warrant, in August 1784* forlanAia the district of country set, apart,for the officers and soldiers of the Virginia, state, line, Bpt⅛⅛ entry. nbt cpver any part ortfte, land In controversy. In gust 1797, ajsurvéy was made in consequence, of entry, which included the land on which the appellants, then resided; and, in Sfay 1798, a patent for tffis is|bCd;to Lipscombe, He conveyed it to the, appelfoe, wnt>,brought spit and recovered judgment, in pgainstthem.</p> <p>They, thereupon, jointly exhibited their bill, and oh, tained an injunction against him. Their bill states, that their improvements were made in 1796; their settlement thereon, shortly after; their residence thereon, ever since : the granting of certificates to them, respectively, by the commissioners ; entries with the surveyor ; surveys ; registry; a compliance, generally, with the acts of assembly, under which they obtained their certificates ; that knowing of Lipscombe’s entry, they had made an experimental survey thereof, before it was in fact surveyed; and, thereby, ascertained that they were not within it; the illegality of Lipscom.be’s survey, as being variant from his entry ; and, that it included upwards of 600 acres of surplus land. * ‘</p> <p>The answer does not suggest, that the complainants, had obtained their certificates without having performed the previous conditions, or for colourable settlements or improvements ; but places the defence principally, upon the allegations, “That the patent issued, and the title was complete to Lipscombe, before the certificates were granted to the complainants ; that (jertificates could, only issue for vacant land ; that the claim of the complainants must be founded in misrepresentation and imposition on the commissioners, in stating that the land was vacant and unappropriated, which in fact was then patented, and absolutely vested in Lipscombe.</p> <p>The evidence in the cause, proved the actual settlement, and continued residence of the complainants ; and. also, the experimental survey and surplus land, charged in their bill.</p> <p>Upon the hearing of this cause, in the circuit court, of Pulaski, that court were equally divided in opinion, and by consent, a decree without prejudice, was enter-' ed against the complainants, and an appeal taken by. them.</p> <p>Contended.that their right to._ the land, commenced with their settlement thereupon» in 1796 ; if not from that date, that it did from the pas-' sage of the act of 1797. That whenever land was vacant at the time of the settlement which the law then au-thorised, or afterwards recognized, the settler acquired a right which could not be divested by a patent granted, subsequent thereto ; and that the expressions, “ vacant, land,” used in the acts of 1797 and 1798, related to the tí me of making the settlement, not to the time of granting the certificateá.</p> <p>Contended that the appellants were not entitled to relief by bill in chancery. That the certificate not shewing, on its face, when the improvements were made, nor that two acres of corn were raised, &c. it was not good against a patent. But if good, it was only evidence that the Services were performed before the date of the certificate, but did not show that they were performed before the date of the patent to Lipscombe. And if parol evidence were to be admitted, to shew when these things were done, there was no evidence here that in fact the two acres of corn were raised before the date of the patent. That all the requisites to obtaining a certificate, must be performed, before the settler acquired any right to the land ; and that there was here no allegation nor proof of the notoriety of the objects called for in the certificates of the appellants.</p> <p>Insisted that chancery had jurisdiction, wherever the legal title to land was in one person, and a superior equity in another.</p> <p>That the settler’s right to land commenced with doing the first act required by law, whether that were actual settlement, clearing ground, or raising corn. That the law made the commissioners the judges of these acts, whose judgment, when given, was conclusive on all the world ; that the certificate required by law, was to show the land appropriated, not the detail of steps taken to secure it; that the certificate was conclusive of their rights, and the evidence of their time of settlement proper, as it was of a matter which the certificate did not purport to decide ; and that the doctrine of notoriety whieh governed treasury warrant claims, could not apply to settlement claims, under our acts of assembly; but if it did, here was proof of actual residence, and that has always been held sufficient evidence of notoriety.</p>

<p>The'urifdlc tion ¿id by Courts of chan-eery, m relation land titles, is governed tute^ under which thofe ti-tiesare derived,</p> <p>rindple^of 'e' dity, in reíation to crufts, is not applicable.</p> <p>AnyW ”¿fe ⅛' f-d in tne proof</p> <p>⅛⅛⅞,⅛ want or definite defcnpti.</p> <p>j,re™ Í ⅛,* called í>y a par-ncular name^'5 "tu^V& r"C"áiie<l in -.782,</p> <p>tee</p>

<p>The child of a woman whofe jjeen^abfentV years, and no proof of his be-tard, and the father is «mingblftaX</p> <p>The father of 2 baftard chil— changeable for the maintenance of both,</p> <p>by by-ftanders, an<i enierei* °f as’part of the record,</p>

<p>a joint action ot affumffi tahed'by Tiiir-viving promííee and the execu-trixofadeceaf-ea promifee.</p> <p>The right of a£tii>n furvives.</p> <p>Tenants in common may, in general, fue feverally $ but they cannot, if the thing in de~ mand is difie-verable.</p> <p>Carth 170,171 —■2 Lev. -2z8 —3 Lev. ,290 —2 Salk, 444.</p>

<p>IN the year 1784, or 1785, George Shortridgé sold to William Elliott, (who had theretofore intermarried vddi one of the appellees) William Gallaspie’s settle- and pre-emption, and transfered to Elliott Gallas-pie’s bond for a conveyance.</p> <p>Jn January •1-7¾6>. -Elliott sold a part of- the land to George and Owen Winn, and executed totbom his pbji; gation, with a condition for the conveyance of the lapd, so sold to then», clear of all. ineupiberences, with g^peral warranty, on or before the first day of October then next ensuing. In October 1787, Gallaspie conveyed tlie settlement and pre-emption to Elliott, in, fee simple, by-deed duly enrolled. Elliott died without having made any conveyance to the purchasers from him. The yen-, dees exhibited their bill in chancery against the heirs of Elliott, and against his widow, to have a conveyance pf the land they purchased. The Fayette circuit court decreed a conveyance, subject to the widow’s dower y from which the complainants appealed,</p> <p>comnaon law* the-wife was dowable when there was a legal marriage, sei-zin of land, and the death, of the husband. But if the husband were seized of an estate defeasible by a right accruing before her right to dower; she would not be entitled to dower — 2 Bac. Ab. (Old Ed,) 128-9.</p> <p>From the time Elliott purchased this land, until he received a. conveyance, he héld an equitable interest only in the lands. And .a wife, by the common law, was not entitled to dower of anéqmtable.estgtp — 3 PiyWms’.. 229 — Talbot’s Equity 138, 14.0.</p> <p>This rule was.not altered, until the act pf Virginia of 1785, which ,took effect on the first day of January 178⅜, and Elliott having, prior to that date, spld the land to us ; when he received the conveyance, there was a resulting trust to our use, created thereby — 2 Fonb. Eq. 16, 121', 124 — § Bl. Com, 337. And the wife pf a trustee is not entitled to dower — ;3 Éq. Ca. Ab. 3⅝?. This conveyance from Elliott to us, should have been made in October 1786, according to contract; if it had then been made, there cpuld h.gve been, no doubt btit Airs. Elliott would nqt have been entitled to dower; and their delay will not prejudice our right, for equity considers a conveyance as. made, frópi the time it ought to have been made- — 1 Pr, V(m* ¾2,</p> <p>Elliott, after he sold. the land, to us,, toqk the. conveyance to pass it to us. And ,a widow is not entitled to dower, where the tide only passes .through the husband, pr where he has but an, ins tantaneous possession — 2 Vern. 436 — 3 Eq. Ca. Ab. 383 (a).</p> <p>-The widow Elliott, is,by com-monlaw, entitled to dower in this land. Her husband jftrte the purchaser of it ; received a conveyance, and died seized of it; I therefore contend, that no equitá-ble circumstances against the husband, can b.ár the wife’s right of dower. Whenever it is coinplete át law, chancery oüghf never to’ take if from her. ; Dower,is one cif the faVorites Of the law. ' ,</p> <p>! But we aje equitably, as well as legally entitled to dower. Whenever the husband wás Deneiicially vested With the title to thfe land, his wife has a good title to dower in equity, ás well as at law. Here, Elliott owned the'laAd ; sold it; and was vested with the legal title.</p> <p>1 It is said, that'‘equity will consider the conveyance made, when if' ouglit to have been máde,; If this is to. be brought into the'case, it is to be recollected,'that Elliott ought tó have had á conveyance before he sold to the Winns, and' by this rule of relation, held the legal title prior to his sale tó them, which gave us a'clear right to dower in the lands. '</p> <p>1 The doctrine of resulting trusts and instantaneous possession will hot apply here, where there was a purchase and sale; ahd a conveyance, not to Elliott as a trustee, But as the true owner. If this gave but an instantaneous possession of the title, to whom did it pass? And where was the neceshity Of bringing this suit ? On the contrary, Elliott held the title to his own use ; bound by Contract, it "is trué, to convey to the Winns ; but he could hot thus barter away his wife’s dower therein.</p>

<p>or ⅛ the breach of the condition of jatcrai Condition, if two or ,mor<V d.lftln* flgnel¡ j,y ⅛⅞ plaintiff,for one 0^s* Cthat ¶⅞ no caufe ófañion, «ten-'ffeffTuffer6 aoneous’ aitho’ for the other baches he ¡)f «£¾⅛!CaU 6</p> <p>if a fteriff coiiefl moneyof virtue of an ex-ecucion, & fail p0, retu™ ^ j* right of aftion agafoft the 4e-⅛* ⅛⅞» tó the defendant in ***e</p> <p>on aafteriff°s bond, for fail-inS to PV m°-"xecutio?,whe![ thev it b’e ne-«fliry t0 av« ^as 1 upon dr before thc 'etum dar ííon'-'or whel' ther it be necef. t0 ma*“ pi° ert- ° te execution-jutr»,</p>

<p>THIS cause was argued by</p>

<p>The county court ought not to bind out a poor child apprentice, without having firft fummoned the next friend of, or perfon with whom fuch child refidea.;</p> <p>i Havr, P.C. ch. 64, § 6o, p. 291, 3 Bac, Ab. 25$.</p>

<p>THIS cause was argued by</p> <p>The following was</p>

<p>A baii bonJ taken to the but‘ ¡t un’ neceffary to ™ake IC PaP' executors, &c.</p> <p>The bail bond wr¡t> makes a part of his re-fuc¿ a corref. pondence be. and bond, as that by a rea-fonable intendment the bond may have been taken upon that writ, it is fuf-ficient.</p> <p>Bail bonds ftould receive a liberal conftruc. tion in furtherance of juftice.</p> <p>If the bail bond recite that it is taken by virtue of a writ againft R. and it be taken by virtue of, & returned with a writ againíl R. and others, it is fufficient,</p> <p>if a bond on its face purport to be the bond of feveral, and it be executed by all except one, it is unne-cellary, in a fuit on fuch bond, to take notice of the name of that one.</p> <p>Unlefs oyer be taken of the bond, it forms no part of the record,although certified with it.</p>

<p>t. .A variance betweenihewrit and declaration cannot be taken Advantage of after judgment.</p> <p>If a bail bond be certain to a comrpon intent', Ú i& fefficient,</p> <p>A bail bond held fufficient» although it did not Hate the nature of the aftion, nor the amount of the debt nor damages,nor that the plaintiff feed as affignee.</p> <p>If the plaintiff fue as af-fignee, it is un-neceflary to Hate it in the writ.</p> <p>If there be a variance in form between the declaration & the writing decía-fet!d°n’t the de' crave” yer^and demur fpedalijr there&r.</p> <p>^ not take advantage of It by ge-nerai demurrer.</p> <p>taken of a wri-tingdedared on, informs no part though certified in the tran-icript.</p>

<p>THIS..cause was argued by</p>

<p>The omiffion *0 ftate in the declaration the individual names of a firm, is at mofi but caufe of fpecial demurrer, ox in abatement.</p> <p>Debt will lie on a wr iting call* ing for a fura of money which may be dif-charged in pro* perty.</p> <p>The averment in a declaration of a breach of contradi, ihould negative every mode of performance which the previous a-verments would authorife.</p>

<p>Where there are mutual pro. mife beingPthe confideration the other; each aaioo, and the piaintiff need not aver a per-*8.</p> <p>Eicample of contrail^ecU red upon by proper aver-meats,</p> <p>.* [he court be againft f^e demurrer, miety ™yt0F<^ withdrawn for rUt'ftiri/nUd a jury,</p>

<p>A mutípn t® ftrike off the ”eaa“e tortoanh>&aI ment, ihouid be very. cautloufly</p> <p>.if.oneperfo-nates another, or name without a’uho-thy, whereby J¡™sellElie,alls hive idiefetj s£Hon cm the Special cafe.</p>

<p>If a party have good caufe for continuing a cafe, but fail to make the motion, and go into trial,this wiil not fumiíh a legal claim to a new trial.</p> <p>The negligence of a party under no incapacity, is no caufe fer a new .trial,</p>

<p>If a replevy bond be errone-jTnot ground for quafluni an execution iffueá thereon, while it remains in iorce.</p> <p>A motion to quafti a replevy bond,cannot be made íubfe-quent to the fir ft court after ¡titling the nr ft execution onthe replevy bond*</p>

<p>Intereft is not to be allowed on an unliquidated account for goods fold and delivered,</p> <p>. 6 Mod. 167, 10 Mod. 277, 1 Dallas 52⅜ 1 Barnes's notes 357, 3 Wils. 206,Frac.Reg. Com. p. 357, 2 Stra. 910, 3 Rep. Chan. 64.</p> <p>Doug. 361, 2 Bur. 1083, z P. Will, 154, 157*</p>

<p>If a party confent that a caufe ftand on the iflfue docket for bearing, he cannot after-wards obje& that it is heard in lefs than fix months from the time of the replication to the anfwer.</p> <p>The law has fixed no precife length of time which ftiall be allowed by the court to amort* gagor to redeem in.</p> <p>Each cafe muft, therefore, depend on its own circum-ftances.</p> <p>If a replication be put in t9 an anfwer, any legednTthean-fwer by way of avoidance,muft fro *</p>

<p>it is not ne-ceiftry, in the late of an ere-the°nyear ⅞0^ Chrift, in ad-dlt,°n to the raonwMk'h.01”"</p> <p>if anesecu-non hath once other execu-’ tlons may ¡5⅛ thereon at any time, notwith-Handing there he more than a between thete-furnofoi*e,and ⅛⅞ lfluir.g of anot er“</p>

<p>That which is caufe of <pe-onlv, or in a-batément, cannot betaken ad. Judgment. * ”</p> <p>The obligation declared on of* the unlefs oyer be taken of</p> <p>^ fail to take bail, when he is re-required fo to ma’kes him re-fponfibie to the °”he defendant.</p> <p>In taking rules agamft feverai their bail,or the ... to de-flgnate torwhich defendant ^ the ⅛⅛,⅛</p>

<p>If bill in chancery do not 2 e e con* tia¿l on which it is founded to be m writing, it t0 bea veri bal contradi,</p> <p>It is irregular withl out a reieafe of errorsandthe be difcharged,</p> <p>no Caufe for rever”! inga decree ma-k'ngR" injunc.</p> <p>legally be taken fot «01>⅛1⅛⅛ without the fcr-vice of a copy of the bill with the proctfs.</p>

<p>THIS cause was argued by</p>

<p>THIS cause was argued by</p>

<p>jt- ⅛ bailee of property ieil t0 y inno-his laie doth “otht t'°tnjjer 3 pfrty . bailor harh his ¿laeve31J</p> <p>u?°n evenr puHiffidi, there ¡,eLha,'h t’[r’¡'e *0 the thing fold,</p>

<p>THIS cause was argued by</p>

<p>A decree can-rot be pronounced againft the pofitive denial of che anfwer,f9 far as >t is re-allegations of the bill, unlefs there be two fes, or one po-Crivewitnefs,& ftances difprov-ing the anfwer.</p> <p>Üart ⅞/j. Bay-Tor, Ípring term xSoo, S. p.</p> <p>A defendant is bound to prove a matter fet up in avoidance in his an-fwer*</p> <p>If the defendant deny the contradi fet up in the bill» but fate, one under c!r-; ⅛ prove chote ⅛- \</p> <p>ftouid. not be si|pbled.</p> <p>_ , „ —Gilb, Law of Iv,46.</p>

<p>THIS cause was argued by</p>

<p>If a on r fident plaintiff give fecurityfor retpfired^or ⅛* fore the’iuit is diimiffed, it is fufficient.</p> <p>difmifs a fuit for want of'fe» curity for cofts* comes too late after the juryare fworn.</p>

<p>THIS cause was argued by</p>

<p>A. defendant in chancery can. not have a de<-creeoveragaiufl another defendant, without a prayer for it in his anfwer, in the nature of a crois bill at leail.</p> <p>t Whether feting a caufe for hearing by the defendants to the bill,alfo fets it for hearing as to fpecial de-fendanuto their interrogatories, qutre.</p> <p>If no replication be put in by a defendant, to the an-fwerof a fpecial defendants his Interrogatories, the anfwer muft he taken as true.</p> <p>Proof of con-ieilions ought to be weighed with great caution.</p> <p>Chancery requires two wit-neííes, or one and ftrong corroborating cir-cumftances, to overturn thepo. fitive denial of the anfwer re-iponfive to interrogatories in the nature of a trofs bill.</p>

<p>Chancery will fpecific"«ecu! fion of a cm-tfait relating to aJerl°”ral (lave.</p> <p>The ai,ove Cept;ona.</p> <p>The cham-c«llor «««<«» decredng^fpe-dfic perform-an“"</p> <p>n^puTh.'/aperl (oral thing, nor ^veh fo^» :"to (econiTpurchat ferwith notice, ‘n faTor of the teaveVThe'parÜ tiesto theirre-medies at law-</p>

<p>The writing declared on, forms no partof the record, un-lefs oyer is taken of 1 c.</p> <p>Setting afide the writ of inquiry, and entering the plea of the defendant, virtually lets afide the of. fice judgment.</p> <p>The omi ilion to enter of record the letting afide the office judgment,is but a mifprifion of the clerk, and not error.</p> <p>Theomifiion to enter the Jl-miluer, is informal, not erroneous.</p> <p>Mgrnjon's t»V, *us, 'Harty ante *5°*. ‘ ■</p>

<p>THIS cause was argued by</p>

<p>It feems that the order of court fixing the rule days, does not form a part of the record of a caufe, unlefs made to by bill of exceptions.</p> <p>If a defendant has appear, ed to the fuit below, and does not objeft to the regularity of the fteps on the rules in that court, he cannot alfign it for error in this court.</p> <p>Taking an office judgment againft the ap-1 pearan«e bail; after fpecial bail is entered, is not error, if final judgment be not taken a-gainft the appearance bail.</p>

<p>Orders of court which give further day to the parties, require fome urgent reafon and fub - ftantialcaufe, to jufttfy the court in fetting them afide,and trying the caufein the abfence of one party.</p>

<p>⅛ bond for the conveyance of land, is as-</p> <p>Suit be maintained m the name of the alSgnor of a paper negoti - able by law, sffignecT *it~ Chitty on bills, 118 — 12 Mod. \H~l Salk'</p>

<p>A fecurity in a replevin bond «entitled to the fummary remedy by motion a-gainft his prin-cipa!, for mo» neypaidfor him.</p> <p>In that mode of proceediog,it is error to give judgment for intereft on the fum paid.</p> <p>If a notice be certain to a common intent, it is fuificient.</p> <p>The record of the fuit in which the plain, tiff in the motion was fecu* rity, forms no part of the record of the motion, unlefs made fo by bill of exceptions.</p>

HART’S heirs, devisees, and representatives, exhibited their bill against sundry persons, who claimed under elder legal titles, obtained upon entries and surveys conflicting with the claims of their ancestor, Nathaniel Hart, deceased.

<p>THIS.cause was argued by</p>

<p>A Tale o'ihves adjuiged co-lourable & fVau. ¿ulenr,under its janicui&r clr * cumftances, a-gainft a bona ji-de purthafer.</p> <p>in a fait for the divihon of flaves the court, upon a proper cafe made put, may order the iheriff to take the flaves into his potfrflion* and hire them out.</p> <p>The court inay decree a ialc of the flaves, if they cannoe be divided in kind.</p>

<p>In a&ions for a tort, a ver-di& fhould not be iet afide for cxcefiive damages, unlefi it be flagrantly outrageous.</p> <p>New trials fhould be moved for on a rule to íhew caufe $ or, at leaftT the grounds of the motion explicitly ftated in writing.</p> <p>The affida. vit of jurors, ought not to be received, to prove misbeha-viour in them-felves, or their fellowjurors, as a ground for a new trial.</p> <p>Where jurors have confewted to a verdidt, * new trial ought never to be granted on th« affidavit of any of their, Gating the grounds on which they found their verdict.</p> <p>x Bur. 385.</p>

<p>THIS cause was argued by</p>

<p>THIS cause was argued by</p>

<p>THIS cause was argued by</p>

<p>Menaces whkh induce a fear of lofs of life, of member, ot mayhem, or of imprifonment, may avoid a deed ; but menacing to commit a battery, to burn his houie, or fpoil his goods, is not fufiicient.</p> <p>Equity will not carry a contrail into fpe-cific execution, obtained under, unfair advantages, or circum-ftances of hard-lhip,not a mourn ting to 4 legal durefs.</p> <p>Jf a party hav. ing equitable objections to a. contrail, after-wards confirmed the fame, without fear or duréis, ¿5 with a ful’ knowledge ot his rights, it ¡s a Waivel 0f his equity.</p> <p>h a hav“ a §roun^ for a new trial, and.® tsl™PP°r-negieíl todo to, "riT'dT ^ * rquíty”</p> <p>Equity will «mpel a aconveyánceo* Urn in lieu of damage, (tho1 it the compiai-“nc «nnut^ jj'*' a cUar tl_</p>

<p>Amandamusio not* ⅛ appellate jurif-there, award ¡t.</p> <p>a mandamus ot- apPe¡u, un-lets a be for the ^afo°n ofa'ju-dicta! deciiion;</p>