Volume 30 — Kentucky Reports

<p> Injunction. Witness. Competency. Practice. </p> <p>•Answers denying allegations of bill, though they contain equity, yet bill must he dismissed, unless -there be adequate proof.</p> <p>Defendant in •Gh’y a competent witness when his interest equipolent between other parties.</p>

<p>Assumpsit. Case 2.</p> <p>Error to the Jefforson Circuit; Pirtlk, Judge.</p>

<p> Motion to quash Sale Bond and Execution. Co-obligors being co-obligees. </p> <p>No action ccaE lmain.tained by a party against cannot enter a lega) £s¿Sf!°n ° If the obligees in a bond become sureties to (homselves they incur no legal obligation, and the borní stands us the single bond of ihe principal who 33 not obligor and obligee, and an action at law is maintainable against such jjrincipal.</p> <p>Execution bondiu which sureties .are" co-obligors & Against all the parties j* should only the^-fnoipal or such as are not bothobli|ees.and °M*"</p> <p>Bnnd whi ^ j* valid to any" ex eot :,s a cbb'atí1 «lW should not be quashed.</p> <p>The fes-ieH^Tn sal" bond q.o'ild •be quash’d fo<yetTfthfihnml be valid to any extent and fied s*ith it1S" erroneous to quash the bond on motion.of obligor</p>

<p>jREFLviN. Case 4.</p> <p>Appeal from the Owen Circuit: Thomas M. Hickey, Judge.</p>

<p> Jhnendment. Clerical misprision. Estoppel. Parol evidence. Tenant. Forcible detainer. </p> <p>If there bo any thing to amend by, the circuit court may, ai a-subsequent term, so amen 11 the record, as t” effectuate an order f-rjurlgment, actually directed to be entered, at a former term but omitted or defectively done.</p> <p>Judgment on traverse, rendered in favor of pit’f. on a writ of forcible detainer, for costs, (judgment for restitution omittte,) circuit courl may amend at subsequent term, by entering-judgment foi; restitution.</p> <p>Pevson not os, topped by returnon a writ n a'^'ari/5 ¡,ut ¡s Cstopped by express acknowledgcovenant; unless it be beo^proourfid by fraud."</p> <p>Writ of for. eihledetainer taimibUiwhen occupant has entered virtue of * a* lease.</p> <p>Party estopped fiom den) i ing eviction if expressly aclvnowledgi ed in oovem ant, to hold under nH’f in habere facias. Unlois fraud or duress, he cannot resist, restitution by proving the eviction to have been illegal.</p> <p>Written ac. knnwledginent that party claiming as landlord, has be- n put “in complete and po.iect possession of the land by the sheriff,” and that party charged as</p> <p>tenau;, “c.cr.siders him I self tenant of such landlord is not an aci knowledge menl of eviction ; nor docs it esiop the occupant from contesting jthe right of such claim' ant of the land; and parol testimony admissible to prove no actual eviction, and the prior possession and its character.</p> <p>Tennant may resist a warrant fur forcible detain er at the in> stance of a landlord, under whose title he did not enter.</p>

<p>&SSXJMPSIT. Case 6.</p> <p>Error to the Mason Circuit; W. P, Roper, Judge.</p>

<p>uebt. Case 7.</p> <p>Appeal from the Woodford Circuit; W. h. Kei.ly, Judge.</p>

<p>Chancery.. Case'8.</p> <p>Appeal from the Garrard Circuit; J. L. Bridges, Judge.</p>

<p> Dower. Conveyance, certificate of. </p> <p>Conveyance fied™by °jus-' tices of any other county which * the land lies, not pass/0® title from vendor, unless “hew°iK.Vonly that the conveyance was cdkn|nn'°also subscribed by him in their piesencc.</p> <p>Whenjnstices of another comity than that m which the land lies, comfy a conveyance ol it by husband & a relinquish-dower therein by the wife, üie certificate that* hit-band not only acknowledged an/f/blit suh scribed it in the presence ofthojustices, otherwise the -wife is not di■vested of her la°nd°r 1 No ° statute which inode”for*”/ linquishment of dower, duímsband, unless he/ by concurring; in «conveyance divest himself (or has pre'"tod*" him-9*3* of his fee,</p>

<p> Error coram nobis. Motion. 'Rules. Execution. </p> <p>In a writ of nobis rr unite errors of fact and law is error.</p> <p>It is not cessaryinmotions, to observethesame technical strictness which is required in pleading.</p> <p>^rule'to shew execution7 or sale shall not be quashed.</p>

<p> Ejectment. Habere facias possessionem. </p> <p>After a judgment in ejectment has, as evidenced by the official return on a habere facias, been fully executed by6 evicting the tenant in possession and giving actual possession to the plaintiff, it is erfor to award an alias hap era facias.</p>

<p> Insimul computassent count-. Evidence. Reversal. </p> <p>To authorise antí7nsimu¡n computassent omit, it. ¿aMth feoesJ item of phSntiff’s account be nroved, provided it is proved that the parties gother^and0" defendant aoknowledged certain w™ due the plaintiff.</p> <p>When circuit court has rejected testimony which was imdmissucceeded'^ ^ that of a witneasintroducposite party, and the reShewat°what time the rejected testiSreif "the*" judgment Will ed bectiusc^of the rejection-of the testimony.</p> <p>Dissent,</p> <p>Petition fora re-hearing.</p> <p>Petition fora ¡p- earing,</p> <p>Petition for a re-hearing</p> <p>Petition for a re-bearing.</p> <p>Petition for-a re-hearing,.</p> <p>Peiition for a re-hearing.</p>

<p>Chancers* Case 13</p> <p>Error to the Caldwell Circuit; Shackleford, Judge.</p>

<p>Ghancerv. '' Caso 14.</p> <p>Appeal from the Washington Circuit; W. L. Kelli, Judge.</p>

<p> Witness. Evidence. Slaves, importation of. </p> <p>A wilness will not, merely beoau«e he m.iy subject himself to a civil suit, be excused from testifying.</p> <p>Under act of 18)5, importation of si,ives into this state, is one offence and selling of themisanolher'</p>

<p>Detinue, action of. Detention. Slaves.</p> <p>After slaves, of Jq m.ue, have hcen surrenfud-ment, there is no remedy tore-cover for the detention of them between and the snr. render of *|j(™r.'en0^utr[le judgment.</p>

<p>chancery. Case 17,</p> <p>Appeal from the Jefferson Circuit; Pirtle, Judge.</p>

<p> Writings. Ambiguity. Parol proof. </p> <p>Latent ambiguicy m«y be parol evi- ^ deuce.</p> <p>Dissent,</p> <p>Dissent.</p> <p>Dissent.</p>

<p>PaTrxiojr & Summons. Case 19.</p> <p>Error to the Warren Circuit; Brodnax, Judge.</p>

<p>Executions, precedence of. Levy. Sheriff.</p> <p>When two or mere exeouof°(lifferent°r partiesagainst same per-to the officer at' d:fferem times jN3 ^3 t-y that which first came to h’3 l5ani!s-</p> <p>If an officer who holds an in his hands! shall levy the junior exeoubyAhé^sAisfaction of it first, shall so property Ahat there shall no-, bpsufficiuntfo satisfythnnld- and in conse-’ quenco thereof the older satisfioclootAf the estate of the surety of in'6thA'Av.cr execution,the offioeris liable “-Jali toy the injury thereby inflicted on the surety in the older execution.</p> <p>If a sheriff after he has levied property permit another officer (¡„n ‘ofViher executions,) he violates his duty, and his official bond.</p> <p>The officer holding the r-ght to late iropcrty out °f gCCT who h.,' .R:><ie the first levy, altho’ mude in vir,tuo of a y°'>ns0T ex~ ecatum‘</p>

<p>Detinue. Case 21.</p> <p>Error to the Todd Circuit ; BrodnAX, Judge.</p>

<p> Assumpsit. Indebitatus count. Money had and received. Proof. </p> <p>Action for money Daid, laM out and expended for the use of tht defendant, will not Ho unles- the plaintiff has actually advanced money-</p> <p>An action for immej had an t received, musí be supported oy pr«>of that the defendant has actually received money to the plaintiff's use.</p> <p>Bat there are c 3üb where money i- consiueitfil as received oi advanced. '.hen it *-• not actually done.</p>

<p>Covenant. Case 23.</p> <p>Error 10 the ilenry Circuit; Davidg-e, Judge.</p>

<p> Set off. Damages. Practice. </p> <p>Note. — Judge Buckner having, on the 21st day of December, 1829, resigned, Samuel Smith Nicholas was appointed, on the 23d December, 1831, to gil the vacancy caused by his resignation.</p> <p>Error to decree compensation for the detention of a slave after judgment in detinue.</p> <p>Liability of heirs limited by the value of estate descended, and not chargeable with interest on that Talue.</p> <p>Criterion of damages for breach of warranty of title to slave, the sum (¡aid and legal interest from the time def’t charged with damages for detention.</p> <p>If plaintiff in. assessed value of slave and damages to be considerod owt.er of l t,0 treated as a judgment for mouey.</p> <p>Decree of set off.</p>

<p> Covenants. Construction. </p> <p>Covenant 9?natrne¿h naii nrcrssary apparua]f cjes as arSg u" sually em ?n !he ved'tou 16</p> <p>Plea that a portion of a multitude of articles were delivered ai the time and place all were to have been delivered, nota good plea of accord and satisfaction.</p> <p>Parol tcstiXjeX^-ikT& fortify the construction X^erms'of11*' .he covenant no; being contiadicted.</p>

<p>Petition Sc Summons. Case 26.</p> <p>Error to the Boone Circuit; Brown, Judge.</p>

<p> Evidence. </p> <p>Evidence of taine(i*trom ;hose through whom title is 10 not admistible.</p> <p>If a deed he not enrolled within eight months ’rom its execution it’s not compe tent evidence unless its execution be proved. Deed executed in 1800 hv agent -in 1817 ti e principal acknowledges the deed as his act and deed before the clerk. This acknowledgment must have relation to the original execution of the deed and cannot operate as a new delivery or second ex-ention of the deed.</p>

<p> Decree, opening of. Absent defendants. . Answer. </p> <p>When joint hasdecree^h"”4 been rendered against absent defend-the dec°re°ePon the answers of part of the being'filed is error. *'</p>

<p>Chancery Case 29</p> <p>Appeal from the Washington Circuit; P. J. Booker, Judge.</p>

<p>Arbitration. Case 29.</p> <p>Appeal from the Jessamine circuit; W. L. Kecly, Judge.</p>

<p>Covenant. Case 30</p> <p>Error to the Bourbon Circuit; French, Judge.</p>

<p>Covenant Case 31.</p> <p>Error to the Montgomery Circuit; S. W. Roeeins, Judge.</p>

<p> Dower. Slaves. </p> <p>Slaves held in dower, vest absolutely in the hu band by second niarriaee during coverture* and if he wife •living, they arc assets in the lv-ncls of h executor or administrator.</p> <p>Statute I7i>s, ii^con’ p’ru >d. ’ ¡'he words “as of his °,vn ProP*' cr slave, or slaves” mean a uosse si m, sua jure,m tinctiun to a fiduciary-posse9si®n-</p> <p>The absolute right of a wife to slaves for a term of years rests in the tbej^are 'assets in the hands of his should he die. before the wife</p> <p>Statute of .1797 imposing skives 'heliMn dower, if removed with- ^ construed.</p> <p>Slaves heldriduob<do-<n er vest in 2m" husband, and do not suivivfog° wdfej but vi st in tatives’'of dm 2nd bust-and during the tifo of the widow, toher right o‘f dower as part</p>

<p>Chancery. Case 33.</p> <p>Error to tho Estill Circuit; French, Judge.</p>

<p>Practice. Ej/ect of prior decision. Penis and Profit#, Improvements. Tenants in common and joint tenants. -Costs.</p> <p>Principles sctlb-i) when o i use is re-man-ietl t • mfi nor courtio •effectu i.e the opinions of the court of appeals conclude the par-</p> <p>te jmt" o6"" a^t'^c 'in-mo'i. is respon-ibletn his waste Vi^for^ reonivin? more than his the' rmit» a °d profits of the «state so hold,</p> <p>ff one tenant or joint tenant enter up-•^no^rent''" ami improve the same, by hi» money or tenantes-00" pending neithermmey he^s e'-titied to the exclusiyo benefit of tho ri-nts or profits thus produced.</p> <p>The sta'utes cl Ann and of Virginia give •n remedy for the recovery nf profits grown gout of an estate from its condition when acqu'red, or produced by the joint labor or expenditure of ’ho co-tenants.</p> <p>In partition between joint tenants, or tenants m having entered upon the Ian(l an;l im~ hc°will be protected' by the c. urt, ^Veme'nts assigned to him if pmcíowariceín"" division for the enhanced }^¡° of tl>0</p> <p>If in partitioning land il cuino bo so ilivi led a.? to allot iniimp-o-.od land to s i oh jo nt' tenant, or tenant in commo i. as may no. have «distributed to the impr.iv''fnfint, etili ho »vill n't !k> rnrith’.l to .'ll ir.;e his c-'-um ml l*--iil for (ho pori ’n of impro-P'l 1 aid ivhioh ho may obtain, nor ha? i.ho improver a rich t to ohare;<' fur tilo improvuhnsntls.</p> <p>When part of appellants compromise pending an appeal and pray a cii^ini?sal the court willo-ily give cos:s upon reversal to such, as pursue -he appeal, not* withstanding the reversal be as t® all.</p>

<p> Warranty. Eviction. Set off. Jurisdiction. </p> <p>If two cove-”ants he <le6 and ave con-’ ¡diluent parts of tl>e -jik. co.-.si'Jorati<?n suptaias o°e mer^-d in ¡he other when oasis-Ó™ tragic to^ ry.</p> <p>Covenant to °n eiictl0n b’ paramount title, covenant- or has notice of pendency oí ejectment and eviction by title superior to his, he is liable to damages.</p> <p>Through a partv'may not have a those who * Imvpright sent, he ohtabic right,'1'"" and may ’ maintain a eery to°on-force it. *</p> <p>Chancellor having possession of a case, by injunction, will do justice between the parties, (he insolvency of the defendant being admitted, he will decree a set off against his’' judgment ut iaw of damages growing out of breacji of covenant, and being fixed by the contract and the law he will assess them.</p>

<p>Administration de bonis non. Waste. Assets. Distribution.</p> <p>The right fy? recover for assets wasted hi former administrator is in dis'ribu tees, not in administrator da imli von.</p>

<p>Error. Case 36.</p> <p>Error to the Franklin Circuit; FI. DavidGE, Jutlgc.-</p>

<p> Duty oj Constable. Statute. Execution, void, Voidable Evidence. </p> <p>An execl]tion u,n;Ilg to a comity in does not reside, the provisions of is^notluivingbeencompHed with, is ^'^’Tho deieudant in ^^avoidit, but until he’ dye», u isobofficer who Hjay have received it, is H'sbif lo the p>:uH)tii!S of tlw law if ho fail to comply with its niEindaie.</p> <p>Constable a lain raterial, not n judicial officer; his duty to obey the execution* not to decuie on its validity.</p> <p>Plaintiff’in execution resP°j?3lble enforcing ir-* regular executioD> on mfntfin híé as he would be judgment, by regular exe-' cution.</p> <p>Irregularity of execution may be given in evidence in mitigation of damages, but is no bar to an .action for failing to obey its mandate.</p>

<p> Warranty. Eviction. </p> <p>Bill to recori by deed with warranthe pur-^ aUeged'to^ have remainec|1 4"? orisi1’* Pirc a-Buídis> missed, there having been "endeef nor* decree or of pay, nor ¡woof that it was at ^ vendor °E</p>

<p> Bervice of Process. Pleading. </p> <p>Service of writ on party convicted felon valid, H. Dig. 1223.</p> <p>If any extraneous fact to render service of a writ illegal, it should he pleaded, so that its truth might bo Cried.</p>

<p>Debt. Case 39.</p> <p>Error to ihe Scott Circuit; T. M. Hickey Judge.</p>

<p> Appearance. Antenuptial contract. Auditor. Evidence. </p> <p>Appearance.</p> <p>nunuugn me husband has by an ante-nu¡ tial contract agreed that the wife may retain & control, in all resMPcts as a feme sole, the land & slaves owned by her before the mar iage, yet if she permit the husband to enjoy jointly with her self the use of ¡the slaves,she cannot recover from the representatives of the husband the value of the’ use of them by the husband.</p> <p>Auditor required to report to the court all the testimony heard by bim or presented to him,</p>

<p> Constable. False Return. Declaration. JVIoncy collected on Execution. Spe- ial Demand,. </p> <p>In a tíum agaliisl'a constable, a faded t’ malua true ami correct re execution*’’ is m-efficient to render him faUe^reujrn. To reneer a coustabie Ha retur°r A{bf'Se declaration should st.ite the return °( made, and then charge shew1 the b"1 jury result-"</p> <p>Neither shot-iff,, nor constables are bound to go out o! their pa^ovTr money collected on execuBefóle a «heriff or con able is liuh-e 101 lected by him un an execulion, where the creditor resides in another county, a special demand,and refusal by him to pay, are essential prerequisites In a declara*tion upon a constable’s bond ior a failure to pay ov- r money collected upion an execution,.it is necessary to aver a special demand, and the averment °f ,sfPe TeT the neciahews thattTu-p'itf’s. are residents °r hadT1"*^’ known agent «herein, or XÍTe Tun-6 ferencc! * "</p>

<p>Covenant. Case 42.</p> <p>Error -o the Fayette ironit; Hickey, Judge.</p>

<p>Error to ihe Jtockoastle i ir-uit. Evr, J udge.</p> <p>Case 4?.</p>

<p>Case 44.</p> <p>Error to the-Bourbon Circuit. Flench, Judge.</p>

<p>Chancery Case 45.</p> <p>Error to the Logan Circuit; Brodnax, Judge.</p>

<p> ¿Non est factum. Jurisdiction. Injunction. Defence. Damages. </p> <p>Fact that th« note or ohligation which datiorTo^the common law action, and °ud'*ment has been obtain ed, was not deed of^th '■ de'fénd-ahq üf the aciion, will not, per cuancdilor jurisdiction to enjoin the, judgment. -</p> <p>Whennhe • gaUon^ueií " on is not 'he act ami deed ofíl'®cilj[ení)1“ defend himself at law.</p> <p>sh'oulffbe allowed upon the sum for "lined “nisin'" dissolved.13</p>

<p> Accounts. Debts. -Credits. </p> <p>Not improper when an account is closed by trote, to d» bit the payee with the amount of the no?e, and when thoriote is paid, to cmlil him b' ihepaymonts.</p> <p>If „>>on a(;_ ju&tment of a,ct°,|j”gSisa madC) aild a « roñe: bataneéis strnofedemand oneiiberside, tl,e chancel, rp’</p>

<p>Chancery. Case 48.</p> <p>Error to the Madison Circuit; French, Judge.</p>

<p> Lapse of time. Elder and Junior Patentees. Possessiog.- </p> <p>Üiñníerruptpossossi.'» of an interference by elder patentee, and a lai'so of twenty years from emanation of junior pat”’ t, i« n bar to j'ir'ior pati’Dfee’s rq litnhlo <ilíi* «0 the infnte,rferonne.</p>

<p>Charcery. Case 50.</p> <p>Error to the Chris:ian Circuí’¡ Shackleford/Judijo.</p>

<p>Assumpsit. Case 61.</p> <p>Error to the Christian Circuit; ifxiAciu.nroiiD, Judge.</p>

<p>Debt. Case 52.</p> <p>Error to ’ho Bourbon Circuit; French, Judge.</p>

<p>Covenant. Case 53.</p> <p>Error to the Clarke Cir. uit; French, Judge.</p>

<p>Limitation. Statute of. Possession. Slaves. Instruct tions. Recaption. ' Continual Claim.</p> <p>Plea of “good retfu,_ .uea o .</p> <p>The court may instruct thejury with* our being moved so to do, but i* is noi bound to instruct unless requested so to do.</p> <p>t When instructtions to the jury are requested of the court, it is bound to necidu u- on them in the form ii* which' they are draughted and presented o the court, but it is not ' ound to mould Ihrm into the proper form. General rule is that the couttshould not give in* structionson mere abstract points of law*</p> <p>An mstruo tion, however pertinent or applicable it may be, is abs'ract unless it be made to apply, in express terms, either t» the attitude of the parties, or the very facts in issue.</p> <p>yive y6UfS sulv ree uni — ’ itpr upted possession of the ..o-sessor *witli so per-that he con recover them fro H ihe formor owner .who may have obtained possession oí .folly! Wr0tlS"</p> <p>of linii.atioi'sSs tio-sofour code’</p>

<p>Detinue, Case 65,</p> <p>Appeal from the Todfl Circuit; BpodwAx, Jude;e.</p>

<p> County Court. Collector of County Levy. Relator. Costs. </p> <p>County court cannot (ev-.-n as wlator) mai tain an ao-ion agam- t the collector of the county levy on his .official bond.</p>

<p> Covenant. Annual Instalments. Interest. </p> <p>Covenant, o mstructiou</p> <p>'^anUs^o*3 pay(acer« tain sum) in annual in-seal .¡«.its, do* C1<*ei* t,,a<the he paidahcnjld. divided-in. :otw.° equal instalments, payable in date ol the covenant.</p> <p>Wl11 inle' rest accrue on either of such instalments uatil tbey be' payable 6 an ‘</p>

<p>Chancery. Ca'-e 58.</p> <p>Error to the Franklin Circuit, Maye.-, Jutkc.</p>

<p> JHortgage. Usury. </p> <p>In consideration of §200 paid (o him A executes te B an absolute bill of sale of a slave, on the .uno day B binds himself to rcconvey the slave to A whenever money, declded that the partjes was a mortgage ¡n-ten.ied t° se«Uro the pay-the $200 are paid, provided the slave was living at that time; but if the slave died before the payment of the money then A was still to be</p> <p>flavo. went of $200 advanced & that it was designed to balance the intorestoftho Against the servicesofthe so far usurious; and that ail^ B was a return of his $200 do.1 interest, orecldtottfo amount of the value of the scrviccs of the</p>

<p> Óyer. Record. Immaterial Issue. Suit, dismissal of. Jlccord and Satisfaction. </p> <p>wbendetenu, and , kintiff joins issue ne“t‘ ^egfthe judgment on F011"!1 ajfty'oflhp1' issue.</p> <p>When there was no oyer craven oi .t writing mentioned in u plea, such writing docs not constitute a part of the record; and it will be taken to be such a writing a- it is described, in the plea, to be.</p> <p>A mere a^reement to ¿üfnotS * is ble.PCa a" To constitute a bar to the prosecution of a suit, there oord.astothe whole cause of notion, for valuable consideration actnallv roceiv ed from the defendant. .</p>

<p> .Aliens. Jurors. New Trial. Challenge. </p> <p>Qcáeíal rule Vs, that whatever would have been good cause of challenge may, if unknown at the prnpor time for a challenge, be sufficient cause fot a new trial.</p> <p>Whether discovery after the trial thut some of the jury were 'aliens or unnaturalized citizen», is sufficient ground lor a iiniv triul1 •Qnajre1}</p>

<p>cwakcsrv-, Case 62.</p> <p>Error to the Wayne Circuit; Bridges, Judge.</p>

<p>Chancery case 66.</p> <p>Error to the Harrison Circuit; Brown* Judge.</p>

<p> Limitation. Possession. Vendee. Elder Patentee. Elder entry. </p> <p>B after he has g®,^ 3 year®, brings his suit chancery against A’s vendor, rely»ms on his elielinquishmeut by A’s vf?do[ oi1hl’ tjthT thiT chancellor wi!1 consider ^«osifonas ¡he possession A’s vendor and !5y c°,n~ 17 yRars possession of A the 3 B°°S~ make out 20 yearspossession in A’s vendor, and therefore re-r,Isp to give relief tu</p> <p>if \f wijQ. owns a tract land °f a a oros* Tas bepn 'in possl’ssion 15 TcTselS one lmndrod acres to ii on whi 'h no improvement had been made prior to the sale, and thereupon B immediately enters, makes improvements and continues six years in possession, in such a case, the senior patentee could not evict B; because by coupling the six jears pos. session of' B with the 15 years possession of A, there would be 20 years adverse continued possession against the senior patentee.</p>

<p> jBill of exceptions. JlmendmcnL </p> <p>When the bill 0a,e^Ttó°ns contain the whole eviacaase> an amendment ^sub-T™1’ quent term, by shewing Ul0te ^ag'“°en on the'trial than the bill of cantainTis inadmissible and a nugaÍ0!T act'</p>

<p> Guardian and ward. Estate of ward. Investiture of stock in Bank of Kentucky. </p> <p>Anciently, guardians we -e held responsible for the sufficiency di all personal security which they ventured to take (nr the estate of their wards. And execu1 tors were hold to the same atrici responsibility.</p> <p>But such a trustee was n it responsible if he loaned the tru t fund on real seeuri-y deemed good at the time ol the loan, or \este ’ it in -h public funds</p> <p>Guardian, wuo had vest ed the estate of his ward i» stock in ^ held, under the circumstanao®, ™s' the full amount of 80 wTth'stam'ling stock in the Bank of Ken. lreaUyhdepredated after the in. ve9t!,lr,e <>f tlJe ¡^t.8 69 a e Stock in the il1'111!* . funds.”</p> <p>Guardian oiTis'^wards’ estate, not onl^j biu'shonld act vigilantly a,1Ll circum. spcctly.</p>

<p> Bill, dismissal of. Error, assignment of. </p> <p>When a bill is dismissed for want of necessary parties, the dismissal should be “wi'hout prejudice” 'ind an absolute dismissal on such ground is error. Assignment oí error in general terms “that the court below erred in dismissing complainant’s bill” decided to embrace an error committed in the manner of the dismissal of the bill. This court will, to reach the justice of a ca=e, give liberal constructions to assignments of error.</p>

<p>Role. Case68.</p> <p>Error to the Payette Circuit; Hickey Judge.</p>

<p>Chancery. Case 69.</p> <p>Appeal from the Chns-ian Circuit; Shackleford, Judge.</p>

<p>Caso 70.</p> <p>Error to the Bourbon Circuit; French, Judge.</p>

<p>©HANOERV. Case 71,</p> <p>Emu- to the'Clarke Circuit; French, Judge.</p>

<p> Mills. Record. Error. </p> <p>Apnlioant leave to erect a mill dam own sil! e°l and on one side of ‘he stream own’fibbed of the si it, a m or (ho title t<> th™Co mon wealth.™1* n Record of the county court thafappiu cant for erection of a mill (Run has such title to the land on whirh the dam is proposed to be erected as the law requires him to have.</p>

<p>'Chancery. Ca.,3 73.</p> <p>Error to the (iarrard Circuit; Bridges, judge.</p>

<p> Attornment. Limitation, statute of. Seven years limit, ation. </p> <p>holds land by execu'ory lease °01 one, can not, by giving him he declaims to hold any longer under chas'd of arid will hereafter anotl'i rtleI thereby stop Bmilation6 from running against the which he thus attempts to shield himself Person who entered and from the t{f landlord,</p> <p>Seven years occupancy to bar^must& have been acr quired and í)j</p>

<p> Forcible entry. Traverse. ' Irregularity. </p> <p>After a fraverse to the fnmiteteinn ani forcible eutry, it is too to^n^'irre™íarity m the w.irrnn or either pr par-'d to i - - ceedings.</p>

<p>Motion. Gasc 76.</p> <p>Error to tin Jessamine Cc'ceit; IG-imar, Judge.</p>

<p>1ÍEBT. Case TT.</p> <p>Error to the Jefferson Circuit; Pirtle, Judge.</p>

<p> Jlssumpsit for use and occupation. </p> <p>Whcyp a person take* p->5se*sion, uses and occupies land, as tenant under another, the common law raise* an assumpsit to • nay for the uso and occu* patina.</p> <p>The action f'T use and ocouTvtion is is »f common law, and not of statutory, origin.</p>

<p>Covenant. Caso 79.</p> <p>Error to the Mason Circuit; Roper, Judge.</p>

<p> Distress. Exeeution laws. </p> <p>Statutes of I«15 an'l 20, which exempt certain property from Stress, have lot been repealed by Hie execoti *n law of 1828.</p>

<p> Usury. </p> <p>Vide case.</p>

<p>Assumpsit. Case 82.</p> <p>Error lo the Muhlcriburg Circuit; M’Leah, Judge.</p>

<p>Tn0VEKCase 83.</p> <p>Error to the Montgomery Circuit; Robbins., Judge.</p>

<p> Indemnity, bond of. Sheriff. </p> <p>liento! sheriff for taking pro-which was the wT ma° be8valid.ma^</p>

<p>Trespass. Case 95-</p> <p>Error to the Jessamine Circuit; Kelley, Judge.</p>

<p> Misjoinder. Husband and wife-. </p> <p>Ta trespass husband and wife, declaration contains two counts, one for an assault and battery of the wife, and one de bonis asportatis “the property of the plaintiffs,” and yerdict for plaintiffs, objeoted that, there was a “f^a‘“sd®r f act?OI1 tha‘tis one in favour ,,f t)le hj»sonc in fa\or of aioue^de-1 cided that, as the husband and wife ailUwiie ^ghC'bcfore coverture, have had a r‘s.’ . 0 the goods taken, the court jVain diet, presume that the tak^"covertarr, and therefore the °¡^sa0°|)(.ac" J</p>

<p> .Deed made by a commissioner. Statutory deeds. </p> <p>Oeed made by a commissioner convening the title of i'on-resident heirs to land is not void, altho’ the dec-ree under which it was made, did not allow the heirs time to make the deed in ttieir personrs°I)er</p> <p>a statutory deed is inefthe* manner prescribed by the stajutlr A ITliWiP commis.doners api,ointec' by a iS°aStatutory deed.</p> <p>Deed made a commisdecree^val- ^ whether be subscribe his own missioned 0r that of the *i‘]e 'whose e oon'</p> <p>irrelevant a per shou'lilPbe excluded irotn the jury.</p>

<p> Renewal of notes in Bank. </p> <p>a renewal note there is executed to ”n<dudes'^ne new obligor, and drops two of theorie;in obligors, notice that gerj\Sthe°r" bank brings one'l'0f the obligors, 1-3„es„jeou' ^ake^part of the ..onev, decided that couhTn'ot thereafter recover inn suit</p>

<p>Case 89.</p> <p>Error to the Fayette Circuit; Iln kev Judge.</p>

<p> Motion. ■ Execution, failure to return. Constable. Ten per cent, damages. </p> <p>If the plaintiff in an oxecmion has received his debt, either before or after the return of the execution, or if the execution has been satisfied by a sale of property to the plaintiff himself, he cannot thera. after recover by motion , against the constable and his sureties, the amount of the execution and ton per cent, damages fora failure to return it within-the time pro¿- • cribed by law.</p>

<p>Replevin. Case 91.</p> <p>Error to 'hi. Anderson t irouit; Todd, Judge-</p>

<p>Case 92.</p> <p>Error to the Pulaski Circuit; Brid&es, Judge.</p>

<p>Debí. Case 93.</p> <p>E ior to the Franklin Circuit; Mayes, Jtidge.</p>

<p>CHANCJSttjr. Case 94,</p> <p>Crrur 11 tee Todd Circuit; Bkodnax, Judge.</p>

<p>Chancery. Case 95</p> <p>Error to the Owen circuit; Hickey, Judge.</p>

<p>Jurisdiction. Practice. Waiver,</p> <p>Cau3e of ttc tion transitory* . 0f the county 'rh.ich de¡.¡¿|es jj.(3 ju_ nsdicti- n; ^nles®ep™“®13s the county in which suit is commenced ; or unless defendant, by his appearance and answer or agreement waive objecti .ri« to jurisdicuon, no allegations of the com.-Iainanl’s bill can give jurisdiction. The. court cannot take the bill for confessed, nor make-any eider upon defendants until juiisr iction is obtained-</p>

<p>Specific performance. Notice. Fraud. Chancery practice. Deposition, incompetent, on account of interest in deponent.</p> <p>If complainant fail to answ,er a fact defendant^ a¡íd. which defendant swerj the a¡_ legation must be la!letl as deposition 0f oncinterested the event f^dmissable. One witness not sufficient of'pri- or equity agMnst the a°ofthe 6an» swer. Sufficient Srouruls t?'e" execution of contract to that^art”"1^ g.úrfst whom relief is demandad had no tlt; e'</p> <p>P rchase of land pending suit in circuit court, gives to the perón sor «tich an intirest as Will nu horize bun 11 prosecute a writ of enor in the names of th'-se who“e title ho ma , have acquired with nit exhibiting " any express power.</p>

<p>Chancery. Case 98.</p> <p>Error to the Oa-rard Circuit; Bridges, Judge.</p>

<p>Covenant. Case 99.</p> <p>Error to the Nelson Circuit; Hooker, Judge.</p>

<p> Estoppel. Parties. Privice. Exchange. Specific Execution. </p> <p>Agreement to permit one suit t.i abide ¡he deci-ron of another, if established, would be effectuated by the court. The opinion of the emit, deduced Irom facts in one case, cannot control iri other, though the subject matter be the same and the facts chiefly the same, when the facts are not precisely the same, and (he case is not between the same parties or privies.</p> <p>Where party seeking relief has been always in possession of land under contract, lapse of time is no bar, but rather operates advantageously.</p> <p>Bill to enforce specific execution of contract for exchange of land; complainant must show "hat the contract can be fairly and availably executed on his part.</p> <p>Contract to exchange with C* for so much land as may be ob-for'bis inter™ est as locator after the emaeation of the patents notachancing bargain; Boris the fact oí tlle land ,!oVthat ¡t has been obtatned; the Part' claim-inS execution 0f the contract must ®how the title '</p> <p>One having no nsjonci in act ofr'the<m ed by it’Vpn:visions, nor ¡’y *he Prptitle lastremain unimpaired unless, tbe'act^Sach act is evidenco only nsainit partios piwus, General seinbly making partition of land, and not mentioned in it cannot bo affnefbut not against him who bad no aponcy in its procurement.</p>

<p>Ejectment. Case 110-</p> <p>Appeal iL'ttm Uiu U-iunt circuit, liitoivN, Juugc.</p>

<p> Ejectment. Executory contract for land. Tenant. Wrong doer. Trespasser. Right of possession. </p> <p>lie who enters upon land undefthetitie of another deny such title.</p> <p>He who eniandUunder an executory contract for puroh use, cannot be evicted from posse'-pinn by vendor; unless he shall, by some act, have converted his possession into a tm tious possession ; as b\ denying the title of vendor, refnscient notice and demand; "^"ment "f rXclmse money will not l’e sufIi" C1°n ’</p> <p>Ejectment cannot be maintained against one who entered legally, and has done no act, by which his possession has become wrongful. It can only be maintained against a trespasser or quasi trespasser Bowl for title competent evidence in ejectment by vendor or vendee, to show the n*>tnre of vendees possession.</p>

<p>The cnur< rer tl.(Wl t]lp;r clerk’s office ™for°e their jud - n'ent or ■Inm- , us>iothe cour do v i be execut-</p>

<p> Instruction. JYon suit. Jury. </p> <p>When facts c inducing to conclusion are given in evidence, it is error in the court to instruct the jury pprempt.'rih. I'belongs to tho jury to decide.</p>

<p>^Covenant. Case 105.</p> <p>Error to the Mercer Circuit; Kei.i,ey, Judge.</p>

<p> Practice. Appeal Bond. Parties. Jurisdiction) Time. </p> <p>Too late to object that one nt sever-whom justice has rendered judgment, in\ippla"nite bowl, to the circuit court, bambeen tried in circuit court, and in an**ealTatut remanded.</p>

<p> Chancery practice. Non-resident defendant. Order of publication. </p> <p>Order of pub.'¡cation is re,, -erttfiM!°byC the printer not the editor otthePaPer*</p> <p>Answer puf in waivesiiregude/of pubHcation.</p> <p>If wt „ to answer"11' bil] of revivor vs. A. B. tratorofa" defendant to original bill g^fr^af ministrator, the fact must ^ °° admití hirófailinÉj to answer.</p> <p>Statute authorizing trial of right of property under xeoutio->, era pais, on!> applies, when claimed by stranger.</p> <p>Replication, th it plaintiff was a “h'-use keeper” and</p>

<p>Trespass., Case 10S,</p> <p>Error to ihe Mercer Circuit; Kellst Judge.</p>

<p> In-Joint borrowers of money. Reciprocal responsibility solvency. Apportionment. </p> <p>A B & c boi> fc’.w ,iri0,ley i^ipropriate individually The benefit*8’ to'cacháis ’ according to the amount b^eachpii the event of tho insolVentie°lo«tl,er’ should be sustained by (he solvent part-proportion of the sum «“Ployed by ovín use.11S</p>

<p>Case 110.</p> <p>Error to tb(> Bourbnn Circuit; Fre-nch, Judge.</p>

<p>Assumpsit. Case 111.</p> <p>Error to th** Jessamine Circuit; Judge.</p>

<p>Detinue. Case 112.</p> <p>Appeal from the Fayette Circuit; Hkkey Judge.</p>

<p>Motion. Case 113.</p> <p> Motion to dismiss appeal. </p>

<p> Demurrer. Endorsement. Obliteration. Plea. </p> <p>If defendant dosiretoavi.il himseK oi an Up0n ;i note, he must shew contract and the obliteralionwaswitlv ontins assent. Demurrer w.fl) r,ot avail,</p>

<p> Verdict. Certainty. </p> <p>In assault and battery, “We of thejury find against the defendants, A and B, five hundred dollars in damage5, and find C ami D not guilty” warrants a judgi meal against A and B.</p>

<p>.Bond for land. Assignor and Assignee. Dilligence. Responsibility. Administrator loith will annexed. Power. Statutes.</p> <p>The assignor of a bond covenantir>s to „ot reinonai-' ble to a^hf-nee unless flue, beé^useíand assignor has failed — Not f‘,r tbe^on ' rióration°naid by assignee °vrr aa^ a_ p?Jj by\s¡i. i'"”" .u.n,<?ss oon* rao't* tho1 the ven rice of assignor had no title.</p> <p>ir A as ntforney forB,who lms n0 title,^ who is”eviofrl’ cd, C has a right to reeover the price paid, from a, if he have not paid eyP; if tho°n" money be paid ¿ver, B B (orPrepre!°' scrita fives) is ^«pwiry defondanl.-</p> <p>Shearing.' &</p> <p>PeiUion for a re-hearing.</p> <p>Ph ilion f..r a re-heaiing-</p>

<p>debt.:. Case Wt.</p> <p>Appeal from 'll-- Mercer Circuit; Kelly Judge.</p>

<p> Right of holder of a note to strike out intermediate endorsements and sue in the name oj payee. </p> <p>Bank to wnom a note las lieen regularly puss-*d endorsement though the zanie have been (In-counted and thereby placed on the footing of a bill of exchange, cannot sinke out the interimdíate endorsemonis and sue in the name of payee. The plaintiff must have the legal title to the no'e to maintain the action.</p>

<p> Responsibility of heir. Common law. Statute. Estate descended. Verdict. Judgment. </p> <p>At common ]aw> heirs on' r>Voovennnte of ancestor, when express ¡ Then^'nlV to the extent of. assents desj 7 not»Uennted prior to suit,</p> <p>Statute 1796, l. Dig 627, oomm mUtw relative to the liability did^not alter” the mode of pleading.</p> <p>Act of 1811 I. Dig. 683. heirs^asw-ell as adminislators & ox. relieves 'from the common qnenceíTof face an i iiidgment y e au .</p> <p>Since the act of 1811, heir is.not resP‘',rrthe estate ties. cencled, tho’ ” judgment by & judgment should he to subject that estate only.</p> <p>Act of ISI1, I. Dij;. 535 construed & applied.</p> <p>Same jutlgb^reníererf upon verdict vs. heirs upon pica of rins per descent, winch would be rendered vs. executor or administrator upon pica ofplene found vs. them. Joint judgment v°. several heirs, all insolvent hut administravit one,he'would not be liable for the whole</p> <p>if estate have been alienatmav'suif ect heir personally by proceedings on judgment vs. i state uescfnded and (•rovmg alienation.</p> <p>In j’oint notion vs' personal representative and heir not expressly bound,judgment to be rendered vs. aJl in the same way.</p> <p>The object of the act of 1S11 was to relieve executors and heirs from the rigor of the common law. The 1st section applicable to heirs, whenever in like case it would apply to executors or administrators.</p> <p>If upon proper issue verff diet do not find the estate assessed to have been alienated, judgment must go vs. estate descended, net de bonis jiro* priis,</p> <p>IJiüsent.</p> <p>Dissent</p> <p>Dissent.</p> <p>Dissent.</p> <p>¿Mssent.</p> <p>j^S5ent</p> <p>Dissent.</p>

<p> Entry. JVbtoriety. Survey. Amalgamation of suits. Rule in chancery. Parties. </p> <p>Congenial, with chancery practice, to amalgamate suits, when the cause of action is joint and the partios interested, are thu* brought before the court.</p> <p>Oase of entry, to runn i a (Ta'ri 0elltu>1" grneraTctiurse of .he creak fnr the na-n; from'th^ be-*' notTíí¡ie ril'd f„iho gin ins.to a p 'int o i tho cr *• k,th.* dis-ta ice called. is the base.</p> <p>Wl'rn <lif>re i- > oi ; i ■ Ihe crin 0f ¡in ■ i.tn b . t f fin -i if., destroy it, the adopted. eimpinu-.t on most nnf-ivorabio to cJaim ants must bo</p> <p>Costs given against those onlywho were _ already benefitted by the odCrCNo°c?st"s for or agaiííst those Whose doubifn/1 WaS u ‘</p> <p>Jomt ^T~ p]a¡n.uits, one dies after h.-arin?: aid. writ abated, the decree >«>¡yj - court below as to revivor.</p>

<p> Covenant. Measure of Damages. Parol Proof. </p> <p>The sum paid or acreed to be paid, is the damages for breach of covthereof. P.ll'O t.O-'i m > ' tint '«I. nn-'d>l fo c.)<it> nd<ct a .Y t’cn instriuneut.</p>

<p>ClIANCrRY. Case 122.</p> <p>Error to the Union Circuit,; Shacki.eí'oiui, Jurtite.</p>

<p>©bet. Case 128,</p> <p>Error to the Montgomery Circuit; Robbin , Judge*.</p>

<p>Ghakobbv.. Cass 124</p> <p>-Error to the Christian Circuit; Shackleford, Judge.</p>

<p>Assumpsit. V/SS6</p> <p>Appeal from the Henderson Circuit; M’Lean, Judge.</p>

<p>OHARffERY. Case 126.</p> <p>Error to the Garrard Circuit; Bridges, Judge.</p>

<p>Chanoeet, Case 127.</p> <p>Error to the Genera] Court.</p>

<p>Error tp the Hardin Circuit; Booker, Judge.</p> <p>Case 12&</p>

<p> Specific performance. </p> <p>Chancnllor will not by enforcing a specific execution of the contract, relieve again«t a judgment at law fairly obtained thro’ the negligence of the covenantor to con-fey.</p>

<p>Ejectment. Case )30.</p> <p>Error to the Daviess Circuit; McLean, Judge.</p>

<p>Chancery’. Case 131.</p> <p>Error <o the N>Wm CirmU; Bookff Jwlee.</p>

<p>Chancery. Case 132.</p> <p>Error to the Garrard Circuit; Bridges, Judge.</p>

<p>Chancery. Case 133.</p> <p>Appeal from the Mercer Circuit; Kecly Judge.</p>

<p>Assumpsit. Case 134.</p> <p>Appeal from the Boone Circuit; Brown, Judge.</p>

<p>Chancery.. Case 185.</p> <p>Error to ibe Fayette Circuit; Hickey, Judge.</p>

<p> Deviso of future increase. How construed. Statute of frauds. Possession. Loan. Liability to execution. Lex loci possessionis. </p> <p>Devise of yfu-tur'1 increase” does not pass any child born piinr to the date of the will.</p> <p>The interest of wife in slave, vests absolutely in husband, possession.</p> <p>If by any pos ] sible deduction from facts proved on trial, a right of action might be sustained; error lojinstruct as in case of non-suit, absolutely.</p> <p>For the slot-I Dig. finito operate to render slave jeot'ro credit- or nf bailee, tbere must be Hnuedttpos°"l t>ion in Kentucky ¡posses- or°«tate"can" not be taken to possession sn íto ekey’ ont” the iimitation.</p> <p>Lex loci posscssionis ilciprir.i u-s tlie consequ éticos o< possession under Joan, and Uio Jaw of Kentucky regulates the liability ot property to ose cution.</p> <p>Possossiuii sufficient to maintain action v=, wrongdoer, but not against one having the color of title.</p> <p>Efíectof 41st s -5. of an act oi;1798,II Dig.11j8,</p> <p>Acquiescence of parent in chililren’s claim neither conclados his creditors, nor bars him or his admr’s or executor* from asserting right to the property,</p> <p>0ne tenant tn n°™m¡Xtíiin an action of trover against th”mereuse of the entire chattel, there oi-'vittual destruction of the Pr°Perty«</p> <p>Not error to teribot SectiLtedoifaV error of the</p>

<p>Pleading. Evidence. Verdict. JVeu) trial. Partnership. Secret partner.</p> <p>To debt ou specialty neiV ther statute of limita tior-s wt nihil debet a good piea.</p> <p>Imprisonment of one obligor does not operate as exoneration of himself or co-obligor without aclual satisfaction and release.</p> <p>Obligation of partners, at law,joint; in ■equity joint arul several.</p> <p>Judgment vs. one partner, merges the pre-existing joint liability of all the part ners. Merger of the contract as to one jointly bound operates as a mer ger as to all jointly liable.</p> <p>tfúflgment vs. one, upon a contract, upon its iace, liis sole individual contract, and as such sued u¡ - on , no bar to subsequent action upon it in its true character of a joint contract.</p> <p>Quero — whethor judgment, °n a contract b^be solo,*0 when it was known to 'ofút ^rould'8 bar future action against</p> <p>Error to admit evidence ^ils no, relevancy to' the matter in contcsl;</p> <p>dormant partner at (late ■ f note (riven by public partner, bound. One ..urtner can bind another by note not under seal, notwithstanding the act of IS 12.</p> <p>He who is to participate i the profits o purchase, a partner.</p> <p>(Dormant partner not bo.und to give notice of dissolution.) If dissolution prior to date of note evidencing debt of partnership, he is bound by the original assumpsit. If partner ostensible unless note given in the style of the firm to be considered the individual note of him who executes, it.</p>

<p> Words. Slander. Construction. Jury. </p> <p>When words spoken are susceptible of two moanini??!, the one slanderous tho other not, tho jury to determine in what sense tosed.</p>

<p> Pleading. Pleas. Scire facias. Administrator. Practice. Evidence. </p> <p>Plea to sebx facias to re-^méofplnin.. ti if, ns adm’r, that he was ' "°od bar*'’ p.e„ to same, that original' 'vas ■ o‘0,l(} ‘ femlant not estopped by poTgrTnted bj county court, nor by "Circuit court. Jud?ment on scire 'f™ oT a°ai nst administra"3-' tor.</p> <p>The new parties in < r-iuo - ed'■ scire facias yi.i t -a b >t one suit an.i one trial should be had. The defendant may make now defence, but he is not preolude . .‘rom the d,.fence relied .n by deoedant. Proper to try-all tire issues •at ouco.</p> <p>Quantum meruit m ervic.-s, ciidetice of whnt A charges nut competent; lor vhnt. qualified pers-ns can be procured fo perform them the inquiry.</p> <p>Jury sworn tó tn an issue or issues embracing entire declaration, not erroneous' f <r o nirt to refuse to instruct the. ju-; ry to disregard counts that may be faulty, there being such . bases laid as will sustain a general verdict and judgment .</p> <p>Irrelevant evidence not ndmissi ble, but whatever conduces to show the claim sued on had been settled is relevant, and should go (o the jury.</p> <p>To escape u>o there" must’bo proof of a pa°™je0r° p£pr acfn Icnowledgea va(b-b^vUiUn^ five years,</p> <p>^f1" competent to prove the a raay p’ro“e facts connect-e(1 wphanfi . oTTnci(lent°to a record,</p> <p>Admimstmt'<>o <rranted prima facie evidence of i Upstate’s driilli; i‘ ones-tinned, oraiesj upon assailant.</p>

<p> Bond conditioned to convey land by deed with general warranty. Covenant in deed that grantor has title. Mistake. Onus probandi. </p> <p>jionii, e'oadii.ionei] to convey land, by deed with general war- , fanty — Deed withcovenant that grantor has “right and lawful autboliityto sell and convey” and covenant Sf warranty made by third person and obligor, endorsement on Bond by oblig°rj that deed lias baearecording,to the tun >r of the !’° 'd-’j.Gran' (,ruj tj li ive no title n>r «''th-iriti to ^r’viJl noV relieve obli-■>> bond, actlon th.it had ¡‘r‘Sbl and to sel] and conve,” upon “1!®8a*ionsof Verting such covenant,and that it was. without coa? sideration. Merely upon doraeZmt fjgor nTt cómpelled to re- : eeive a deed ^venant*10*1</p> <p>Covenantthat f(ran^°rMs jar^fui authority to sell and convey,” is v-seizS”^ nor was it pri- or to July, 1 tu" kdversaryposonly imports «estiture of legal title am! right to convey iu</p> <p>Court will not presume that parries did not understand their covenants according to iheir plain import.</p> <p>Question tried at law will not be re-examined in equity unless «pon allegation of fraud in obtaining judgment at jaw.</p> <p>piu.ty wh(j"“l duos not she«t ,itl0 to rcs^tt'ition1'* rents or «lam-ages for waste,</p> <p>Before this j Vioii alleged cq"ity of grantor llis he'r8 in<lis,. ^eL"fab‘e Par'</p>

<p> Covenant. .Evidence. Damages. </p> <p>k) ('duration substantially setting forth covenant and breach» so ns to show cause of action, good.</p> <p>Pecree can* not be sustained unless facts neeossa, ry to uphold it appear in the record, recital in the decree insi! ffi— cient. t eriifioate ot pub-d >ation most be in the record or decroS deemed ex-parte and void.</p> <p>Plaintiff never evicted, no answer to claim for damages upon breach of covenant that defendant had “right and lawful authority to sell and convey.”</p> <p>Copy of will admitted as evidence, be-' ing the best that under tile farts established, could be had ha°Pa ri^ht'to subscribe the name of his ' principal,</p> <p>{¡Criterion of (lambes for ^ onant of title, the considera tion actually !’crcst?n JU~</p> <p>Acknowt defd™iTcon™ sidorution paid, does not t°Vrom show* in^that it has not noon ac*tuahy paid,</p>

<p>Chafcery. Case 142.</p>

<p> Patentee, interference. Possession. Limitation, stdluter of. Grantor competent vnlness. </p> <p>°f ejeotmenr may operate possossi.sn'of an interference-</p> <p>An adverse possession (Aaúged by the agreement of the partie», fr*e".d' tho operation of the statute °h reb bjg0ns feateeb</p> <p>Grantor in a deed is com-prove its°exe cution, so far as his title has passed by it, or in other words, so far cerned ?n°its' execution.</p> <p>Bat one grar.ioris ”ot,, s,rovD u,e ex„ ecution of a vuicr'i cantor acknowledge? tho execution .^yand* willing to be , a witness to Provo 'C !l IS to prove its execution by J-lie fi;hscnb-.'</p> <p>Before (he ritrlit of the ehloi patentee to enter upon the land is tolled, there must be 20 years advene possession in fact.</p> <p>Statute of ^“osn^tTm mence'Viin-11' ning from time tin indifósts ai^níeñtion to clear and use lamí as las own.</p> <p>An entry with ai, intention to p ‘SSÜIS, made by n junior patentee within the lap, is not sufficient to confer such a possession as will start the statute of limitation to running, unless it be accompanied by a continued holding from that time, demonstrated by acts ripening into improvements made upon the interference.</p>

<p>Chancery.. Case 141.</p> <p>Anneal from the Gr ryson Circuí'; Booker Juclpo.</p>

<p>Rescission of contracts. Mistake. Limitation, statute oj.</p> <p>/Lapse of fiye \ ears is a bar to a bill f;r ^</p> <p>the groa id mistake. {.i such ca es, the timo will no oo.mnei.ee Hu! discovery oi'Uio mis-</p> <p>• t-ision of'ra<)S" «■ontriuton ground of (ivo^eats n('-C lor the making ofthe r kil to allege, or to give a»y s"n for I’P'". the mistake was first dyin five years' next before the institution 01 the suit, and dofenl)(l111 lltlS plead the «tntuto of limitations, (lie plea must prevail.</p>

<p>Final decree. Partition. Jurisdiction. Commissioner’s report. Current interest.</p> <p>Decree for th# Rfe°lfioRsums ,¡,e t¡m tinned, and for a partition poi’-ts commi6sio¡ ers to make the parp1R(jna°|] rects them to report at next' ^"r^deoide(g that such -ici-reo is- ( nñssionére" make an erroneous rcbequathed^' but it they ’ properly exe.°“e*® is not Bubj-mt to</p> <p>On partition of land allowance of current interest on the limón nt paid, by one tenant in common, for improvements and taxes on the land, decided to 1 e erroneous,</p> <p>p *t;or! far'u</p> <p>Petition lor fc-ti earing.</p> <p>¡Vuumi 'ora ri>!,caririS-</p> <p>Petition rt’-boarini for a = •</p> <p>Petition for a rehearing.</p> <p>Petition for resh earing.</p> <p>Petition for* a rG'llsa?'inS‘.</p> <p>Petition for rfi-bearing. i</p> <p>Petition i-ir a ru""t,an"S“</p> <p>Potitiou I' ■flvjj earing. 1 a</p> <p>Petition forii re-licaring.</p> <p>Pit t i" lor rtí-íiciifing. 1</p> <p>¡'< ut.un ora ro-li«anng.</p> <p>reinar" ,or a re earmg.</p>

<p>Chancee?, . Case 147,</p> <p>Appeal from the Nelson Circuit; Booker, Judge.</p>

<p>CASE. Case 118.</p> <p>Error to the Logan Circuit; Buodimx, Judge.</p>

<p>Chancery. Case I4Ü»</p> <p>A;>pea: f.om the Woo<lf-ml ; Kegev J udge»</p>

<p> The Shakers. Tenants in common. </p> <p>uill against the Slmlu-rs, a i.r of them a de mane! unis'g mu9t ae.-cnu« them as a p“ common.</p>

<p>Error to the Franklin Circuit; Todd, Judge.</p> <p>Case 151.</p>

<p>Apfeai.-. Case 152.</p> <p>Error to the Garrard Circuit; Bridges, Judge.</p>

<p> Statute of limitation, plea of. Actio non accrevit, </p> <p>Wherea timVdoesmit immediately -use u or i!i tho make-1- f a i roirnse i ut results from a breech happening i oars u'ti l- (lie pn - miso is irado, the olea of non aosmusit will n -> tars is no bar.</p>

<p>Motion. Case 154.</p> <p>Error to the Logan County Court.</p>

<p> Administrator. Assets. Settlement with county court. </p> <p>Whore an acW ministiator pays debts of his intestate out ot his own funds, expecting assets at the time, and is removed from the administra tion before assets came to hanefy he is entitled to reimburse-merit out of the estate which has descended to the heirs.</p> <p>Settlement made by a cl. ministrator with the co. court,decided to be prima, facie evidence.</p>

<p>Chancery. Case 155,</p> <p>Appeal from the Lincoln Circuit; Bridoes, Judge.,</p>

<p> Wills, revocation of. Estoppel. </p> <p>Two wills of th;> «amo parson aro presenterl t., the county court for record, one of a more recent (late than the other, thecounty court admit tin* elder will io record, and reject the more rocen t, and a writ of error is prose* cut’ed (o re. verse the i.r. der admitting 'In; elder will to record, decided, that, as the order of the county court rejecting the more recent will remain» in full force, this court cannot, upon this writ oí error, revise the order rejecting the more recent will, and consequently cannot, upon this writ of error, deter, mine the elder will was r’voked bv the more racen'.</p>

<p> Bail. Scire facias. Ca. sa. </p> <p>'Scire facias against bail, cannot be ■maintained sutil after a ta sa. ■and that having been abol dshed,there 'is now no re'•jpody against 'the bail.</p> <p>Dissent</p> <p>Dissent</p> <p>Bissíat*,</p> <p>Unseat,</p> <p>Disseht.</p>

<p>Deeds of trust, ' Secret trusts. AmloetU debtors. PmJereuce oj crtuituis»</p> <p>Deed of trust by an insolvent debtor, by which he conveys all his estatr, real and personal, to be sold for tho benefit of one ofhis creditors, vith a secret parol agreement between him and the creditor that part ■if the money for which the property mi:»lit sell, should go tho debtor, decided to be fraudulent.</p> <p>Where a cirediior has endeavored to obtain a fraudulent preference over the other creditors of an insolvent debt- or, bv having procured a conveyance to himself of all the debt- or’* property, and the other creditors have obtained a decree setting it aside as null and void, his claims should be postponed till the other Creditors are satisfied.</p>

<p>Attachment. Lis Pendens. Lien. Property is 5,*^ ofcompiaínant, aM lis pendens purchases perty^at^ ’ sale under ah execution in per^agnmat the drx executes a”^' sale bond for pnce, deunder stances, that his subseq”ent purwaiveroTh^ lien acquired pendensS and must pay off the sale bonds' hf¿cnte<3 ^</p>

<p> Bill ly elder patentee to compel junior patentee to release his title. Removed certificate. Statutes. Settlement. Jurisdiction. </p> <p>¿ntn mater^’ Qnv amend-*" ed,takes-datefrotn amend“sn<"</p> <p>Loeatioa made on re,-moved certificate, granted by county ct. since flOth Dec. 1800, illegal arid void, unless made with the county-court; entry-with survey,», or not sufficient. Effect of second sec. of the act of 18Q4.J1 Pip 769.</p> <p>Court vyiil' not presume location to-, exist which is not shewn.</p> <p>Th entry void, it does 2iot follow t.hat tbo patent issued upon it is void,</p> <p>X Dig. 251, p<"puo having i.e^al title ai d possession may maintain bill i o compel relinquishment by junior patentee.</p> <p>Comp’t with mere patent on void entry cannot have decree for “ repose” vs. def’t, who has survey and junior patont, unless defendant’s claim he yotd.</p> <p>t,;Uj no anthoúty to 5''“ut ?UIÍ1.fí_ men, „r jooa_ tion on remo» °ortiii' c‘l ts-</p> <p>Thir I section ^g’ an’ thorizo connt.f court» to fan?sC(>f locn^ tion. That power given ’</p> <p>Notoriety not required un-; authorizing commis«ionurs tqgr t settlement. - Difference ■’«tween the systeraTnd'^ county court-.ystem.</p> <p>Fifth see. of l80lTnteiiclod •to secure surveya made aot^Jimiertheto Gommifsiooer system, as U.c^couni^ oourt system, unless, void, .</p> <p>Upon de&t exhibiting; p° terlt ^nder the Hoad Right law, oourtwdl 0 an</p> <p>Whom complajnant exhibits n want of equity independent of ■patent, def’t «cocí not exhibit hi3 entry in such case as the present, because it is not n comparison of equities, and his survey is protected by the ■acts of ISO!' and 1808,tho’ it doe* not correspond with his en- - try.</p> <p>Bill dismissed and putties referred to !t'hc law.</p> <p>Court will not presume against recitals in survey and patent that there was no regularly removed certificate and no entry.</p>

<p>Possession, actual, constructive. Patents. Entry upon interference, by junior patentee, senior patentee in possession, not within interference. Jlct of limitation of 1809. Possession by tenant. Landlord's possession.</p> <p>Though (he settlement, in virtue of which county court granted certificate, be within appropriated land, yet the certi ficate not void; all the lan i not embraced by the certificate, and unappropriated by prior claim, may be held under such certificate. See Acts of 1795:97-8-9; 1800, 1801, 1804; II Litt. Stat 95,273, 381. 420,455; III Litt. Stat. 196.</p> <p>Seven years i-.etual occuunder till odeducible of recotrl, whether by one or more, provided they be connected with each other, by title or estate, as vendor and vendee, landlord and tenant, ancestor ftitutes^bar in virtue of the act of 1809 against all adversary claimants.</p> <p>The settlement must be raadc upon V <0 ia asserted” and continuducible of record for sev1s»sLb,<'r foro fhfí Fiat uto of 1S09 furnishes a bar.</p> <p>Deft must set potation fn bar of adversary claim^/notex^ tend theproí1g(^Df aot of</p>

<p>Gas's</p> <p>-Error to the Simpson Circuit.</p>

<p>Chanos»?. Case 164.</p> <p>Error to ths* Franklin Circuit; Tord, Judge.</p>

<p>Error to the Lincoln Circuit; Bridges, Judge.</p> <p>Case 163</p>

<p> Surety. Replevin bonds. Stay of execution. Release. </p> <p>if, after a Jifa issued on a replevin bond has been levied on estate of (he principal obligor, sufficient for its satisfaction, it be stayed by order of piaiutiff, and the property released, the surely iu the replevin bond is thereby released, in equity, irom the obliga* ion of <he replevin bond.</p>

<p>appeal, Case 167.</p> <p>Error to the Madison Circuit; French, Judge.</p>

<p>Chawcert. Case 168.</p> <p>Error to the Garrard Circuit; Bridges, Judge.</p>

<p>füBICTMENT. Case 169,</p> <p>Error to the Shelby Circuit; Todd, Judge-</p>

<p> Slaves, importation of into this state. Indictment. </p> <p>Ail indictment for importing slaves into (his state, contrary to act of ÍS ¡5, need not charge a sale of them. Importation is one specific off'nee, and a subsequent sale is another and different infraction of the law. Chame of illeca) importation may be sustained without proof of a sale.</p>

<p>Fee bills, quashal of. Jurisdiction.</p> <p>whrn 0¡r cuitjudge quashes a fee ^jjl°f °,erlt chVro-ef^iis jurisdiction or power 5^Ushe^n°byat the record of his judgment. The jurisdic tion is limited and ¡ocal-</p> <p>Nor can it be delegated, or lQ fC\bjLllic dc-g.</p> <p>And, therefore, if the clerk appear ami make no objection to the jurisdiction, a judge in any other eounly than that in which the applicant resides, could not enforce any judgment against him.</p> <p>On a motion to quash illegal fee bill of a clerk, consent cannot give jurisdiction.</p> <p>And an appearance by the clerk does not dispense with the proof of all the facts necessary to sustain the jurisdiction of the</p>

<p> Receipt. Interest. </p> <p>As matter of forVmoney8'Pt does not charge receiptor with interest.</p> <p>It is matter of discretion ■with the court ther* to allow it or not.</p> <p>Recitation m a covenant ofa receipt fer money dcctrir^e're-1’0 eeipto/with interest, as a inatter oflaw</p>

<p>Error to the Fat ettc Circuit; Higkey, Judge.</p> <p>©ase 172.</p>

<p>Error to the Floyd Circuit; Robbins, Judge.</p> <p>Oase 174,</p>

<p> Indictment. Jissault and Battery. Verdict. Judgment. </p> <p>Indictment against seyecial for an assault and battery may be joint, and so may the trial, hut the verdict and judgment must be several.</p>

<p> Forcible entry and detainer. Gammon law right of entry. </p> <p>At common h^Hn'^ho1 title to’land and having the right to uVuctuiU ^ force to effoct ”is.°“tryfoivfentry and detainer have „b°w ¡ destroy the ¡¡ commou l&vr " ¡N]** aciicmof ** trespass quart' fut’ry5 by pleading and p.roN,‘?a ^herumte-' nemmtum is f°”^0pJeGsin ‘^° tlGS"</p> <p>Person haying the legal an?befo ^aa<1 ’ actuarios-1 ¡.ias f by force!!?6 necessary, any attempt ^est'him ment thereof or of the free “j®? ofaDX apperÍainiue. **</p> <p>of1 forcible outry and drtainor do not ¡ififc-'t the r¡g,,i of entry to greater íi-íl statutef on snme subject have been-construed to affect such right in England.</p> <p>does°not*take Our statute away the common law right of entry. Person who has a right ot entry, and who makes an actual entry in consummation of that right, can only be mode pointed out by the cibíemitr r°r" and detainer. Any forcible person so in actual possession is actionable.</p> <p>And he may repel by force any forcible attempt to expel him. He must be removed secjmdumlegem</p>

<p>Trespass. Case 177.</p> <p>'See case.</p> <p>Erior to tbe M ntgom try Circuit; Robbins Judge.</p>

<p> Trespass. Forcible entry. Justification. </p> <p>When a per-,in the sio„ of his own lam', he ^ forcible disturbance thereof.</p> <p>And his «on, aciing under J(iis authority, is equally justifiable.</p>

<p>Trespass, action of.</p>

<p> interest. Pendency of another suit for same cause of tion, plea of. Pleas in abatement. Demurrer. </p> <p>On a note ex-, ecuted and payable in N. Orleans, stipulating for the payment of eight per cent, interest, and there be no evidence in the cause shewing what the rate of interest is iuN. Orleans, a judgment for principal and eight per cent, interest to tiiixe of thejudgment, is proper.</p> <p>But judgment charging obligor wit,hR' per cent. inte, res! from the remlit'on ->f judem-nt till pa. meat, is improper.</p> <p>Where appellate oi-urt has ordered a suit for the same cause of action,to be dismissed absolutely, it i° a final disposition ol that suit, and it is not necessary the plaintiff therein to Wait until the order is entered in the circuit court before he commences another suit.</p>

<p>Chakceut, <ijasel81.</p> <p>Error to the Simpson Ciicuit; Graham, Judge.</p>

<p>MoTTOfrCase 182.</p> <p>Error to the Jessamine County Court.</p>

<p>' County levy, collector of. Motion.</p> <p>On a motion by sheritF against his deputy, or the sureties of his deputy, fur a failure to collect, pay, or account for county levy, there should be proof that there was a levy laid, and that the clerk delivered to the deputy a list of the perrons chargeable therewith, and also that the deputy collected, or undertook, or was bound td' ooHect the levy.</p> <p>County’ court has .10 jurisdiction 01 n motion made by a sb-rifF against his depu'y, or the sureties of his deputy, for a failure to collect, or pay, or account for county levy. But county court has jurisdiction of a motion runde by a collector of the county levy, (who has been appointed by itself i) ¡igainsi his deputy and the suieties uf his deputy, for a failure to collect or account for county iovy.</p>

<p>'Motiost. Case 184.</p> <p>Error (o the Campbell Circuit; Biiown, Judge.</p>

<p> Forcible entry and detainer. Judgment in ejectment Disseizor and disseizee. Pedis possession </p> <p>Person w!io is not a party to a judgment in ejectment, is not concluded by the sheriff’s return oS habere, facias thereon.”</p> <p>When two persons occupy the same land, whether there is such a privity between them as to authorize the eviction ofboth of them unfaci^^g.wet one oi them, should be left to the jury to an i should not be decided by thect.</p> <p>Judgment in ejectment mthereinto right of entry on land in of aP°erron°n who is neither party nor privy to tho ju gmen .</p> <p>If in the absence of tho person who ÍS ” isf tTof FmcTaod^ici party or privy to tho_jud|ment Thesheriff, under a habere facias Fnthojudg-’ ment in possession, hut n?1!h?.r(tthe any other person for him, remain sion and the person, actuados*16 session PitSthe -execution of das, rem.-iis, und c<>ntinis not guiity <>fa forcible j^mer^tle~</p> <p>Such proceedingisnot an actual cvietiou of' die person who is in actual Pos” session.</p>

<p> Usury. Mole tainted with usury is void. </p> <p>Previous to the passage of the statute of 1819,A executed a note, and B endorsed it with a view to obtain for A the loan of c”aml c°m loaned the money to A rat^oTiriter-3 est on the faith of the note,decided, that, it aptransac* tion was an" usurious loan N was void°, and and B ab-*0 c for the money loaned by lum to</p>

<p>motion-. Casa 187</p> <p>Ap,.eal from the Payette Circuit; Hickey, Judge.</p>

<p>Dower, assignment of. Slaves, assignment of dower in. Mansion-House.</p> <p>When the order appointing commissioners to assign dower does not appear in the record, but the bill of exceptions acknowledges that such an order was made, and does not question it: legality, it will be taken to have been such an order a* the law requires.</p> <p>That the mansion-house is not •allotted to the ifiidow is insufficient ground for quaahal of report of commissioners, making an assignment of (low* <*r.</p> <p>Jf widow gets an equal third part, in value, of the Sand, it is all of the land which the Saw gives her, and she can-no matter where i> may hm- ^Lw*0 givés her no preference over the heirs or devisees.</p> <p>per-on-il'representative refuses to ass^gmnpnt'oi dower out of the slaves, ^urTahonld not "assign to the widow her dower in j^snc^c-ise her remedy is in chancery, When executstrator eonsents to the . assignment of dower in the slaves, the count;, court may cause the assignment to be made.</p> <p>In assignment" of dower in sla\ es, an allowance of a sun. oi money to the wmow, to make htr share of the slaves equal a full third, is not error.</p> <p>Husband died iu Aori), and dower was assigned to widow in July ensuing, but the report of the commissioners making the assignment, postponed her in the enjoyment of her dower until end of the year, decided not to be error; because she is indemnified by her distributive Share of the crop.</p>

<p> Contract to procure remission of a forfeiture -is illegal. </p> <p>Gontrrct to paya person ^ management or a petition mission of a forfeiture, provided he * remission 6 of it, will not enforced, contracts'1011 tend to obstruct a cor. Nation oMhe government</p>

<p> Sale bonds. Injunction. </p> <p>Collection of it'sale bond given on the purchase, under execution,of a tract of land to which deft, in the execution had no 'title, will, if it appear that the sale was inade at the instance of the plaintiff in the execution, be enjoined.</p>

<p> Writ of error. Privies, Nominal and beneficiary p lain-tiff. </p> <p>General rule is, that no " ^ Per?011 ,°an ”fitoferror who is not a Party °rpnofd'orprejudiced by the judgment.,</p> <p>No perceptible reason why all otherPriYes>1P well as those-by blood or representanon, cannot wr¡t0f error,</p> <p>Privyin int®tain'a^vnfof' error,</p> <p>in’a^^aintiff" has assigned to another couvt errin dismissalof je°of the°r" tho beneficiatain a writ of error.</p> <p>Wdien if appears (hat nominal pltf. has assigned to another the benefit of the suit, a receipt given to the defendant by the nominal pltf. and which also directs a dismissal of the suit, is insufficient evidence to authorize tho court to dismiss the suit. Such receipt is no evidence,against tho beneficiary, that deft, has paid the debt</p> <p>When norni(h0 0f thnsuit to aren^Vdc'fentUant a receipt «gamst tfao quésüoñwhether clefendaut had no-^0? of the benefit of the suit bo(u’cjded by a jury, ami not tbe court-</p>

<p> Fines. Remission of fines. </p> <p>After n fino has been paid íbrmcT^hís111’ right is indefeasible, and a subsequent tbc'fine^'by the Governor, will not give finei'a r'ivlit of action to recoverback irom tne informer the amount of the fine so paid to him.</p>

<p>Trover, action of. Sales under fi. fa. Officious interference of strangers in the execution oj afi.fa.</p> <p>Wa stranger to an exccuh°undMtakes to point out, and direct the sheriff to levy on. property which is not subject to execution, and the sheriff soils the property so pointed out, such stranger" is liable to an action of trover and conversion by the .owner of (ho property so sold.</p> <p>Plaintiff in an exeentiou is not liable to an action of trover and conversion for sale of property under the execution which was not subject (o it, unless he directed the sale.</p>

<p>Surety who principa], and afterwards judgment against bis andTac/a fi fa. returned “no property maintain an actionagainst the devisees.</p>

<p>Error to the Fayette Circuit; HrcKsy, Judge.</p> <p>Case Í9&</p>