Volume 31 — Kentucky Reports

<p>Contest for ten “Fes of,la,n? titles and claims of the parties, respectively,</p> <p>A contract in writing, for the sale of land, which contains no description or reference i-dontifying the land, could not he enforced consistently v. ith the statute against Frauds and Perjuries.</p> <p>Subsequent pur chaser, whose deed recites, that the land was sold as the property of the obligee in a written contract for a title, cannot deny the title of such ob-ligee — he is es-topped by the' recital.</p> <p>Ten acres ,fad-TOndee^on^the north,” was extendingd(not the whole length of his northern boundary,) but the vendor* land reached,</p> <p>Such description (“adjoining him on the north”) in a bond far a title, to land of the vendor adjoining land of the vendee, is sufficiently definite to take the case out of the statute of Frauds and Perjuries.</p> <p>Depositions taken upon notice to some, not all, of the adverse party,, may be ' used against those who had notice.</p> <p>No proofis necessary against those vho admit the allegations of a bill, by failing to an-sa er.</p> <p>A decree should not be reversed for the improper admission of a deposition, if there was sufficient proof without it.</p> <p>A remote grant- or (orhis heirs) from v hose ven dee thecoatond-ing parties both derive title,need not be made a party to their suit.</p>

<p>Statement of the controversy —Verdict and judgment for plaintiff for part of the land.</p> <p>C. claiming, under an elder grant, adversely to M. acquired the possession by buying the Interest of persons holding parts of the tract, under ex-ecutory contracts for purchase, from M.</p> <p>Such entry held to have been • made,by C. under M.’s title;which neither C., nor those claiming under him, can dispute, without restoring the possession</p> <p>Objected that the jury, not the court, must decide, under what title, a party entered.</p> <p>The court must decide upon the competency of title papers, and the right to use them, and, incidentally, under what title the party entered.</p> <p>tobeSvers^as to apart of the ■braced by the proof that the’ claimant had ae ■ quired the possession by contract with his' adversary’s tenants.</p>

<p>Pleadings.</p> <p>Evidence.-,</p> <p>Instruction*</p> <p>instructions— qualified erroneously.</p> <p>ce cZflwsum.ffe git, plea or Lx-berum tene-issuef** thereon*^ evidence of par-eRheTparty, Z admissible. Ih trespass qua<</p> <p>No reversal for the admission of relevant testimony at an inappropriate time.</p> <p>Records, plate † papers bearing upon the question of possession, are •admissible, under an issue on a plea of libe ■ rum lenemen-turn.</p> <p>Possession in traspass'^c 'í: at the time of thesuitbroughtf is essential.— recovetyn.Wtere the possession in fact was with the defendant continually - although torti-ously, and against the w'ill of the plaintiff1.</p>

<p>Suit on a clerk’s bond, for a fail-uro to copy certain writings, in ^record °nI>t °f</p> <p>Clerk failing to insert in a complete transcript of a record, any thing properly belonging to it, commits a breach of his bond.</p> <p>Papers put with those belonging to a cause, but not made exhibits by the pleadings, nor read upon the trial, are no part of ■Jhe record.</p> <p>Admissions of' items of account, before a-commissioner, should appear-in proof.</p>

<p>A tender of the sum due on a. mortgage, made to secure a debt to the Bank of the Commonwealth,with tea per cent, interest, after the sale, but within the time allowed by law for redemption,wilt' not divest the Bank of the legal title. The holder of the equity .of redemption must resort to Chancery, to compel a reconveyance.</p>

<p>Judgment for plaintiff, in e-jeetment.</p> <p>for reversal of the judgment. Grounds for a naw trial. and</p> <p>Whore the bill does not exhibit all the proof, notsaythau-he verdict was con. Menee.t0 °''</p> <p>. went, without rears1*16’ olscs sion,« not pro-tectea by lapso of time,</p> <p>The acquisition °fthe il tenant,^ ill not 5a“onyb*ween him and his land Tannot question with- ^</p> <p>Instructions of ^^e^errone1 ous, but ab-Xlreforo not cause for a lev01sa-</p> <p>After a judgment in ejectment, the deft, buys the land at a sale by the sheriff, under an ex’on against the pl’tf: Sf then agrees (for a con sideration,) to release it to the plaintiff, abandons the possession, and, sometime after, makes the deed. In the mean time, a stranger enters- by what right, it does not appear. — Held that his possession was thepos session of the plaintiff— not of the defendant and those claiming under him.</p> <p>A deed made to carry into effect a contract for the sale of land, of which there was no adversary possession at the time the contract was en tered into, is not tainted with champerty, although the land he held adversely, when the deed is made!</p> <p>Evidence rejected in the circuit court.</p> <p>Copies óf patents not duly authenticated— not shewn to include the land-, were prpporly rejected.</p> <p>Witness -tat" that he is interested, for some ol those consci-tuting the party. offered^is^iot competent.</p> <p>Ifa witness says for13 some681 of the defendants, those whoosh to^ avail them-testimony,must shew that their defence is unconnected with defendants1 and ihe witness not •ihemeStel WÍth</p> <p>Testimony that can have no legal effect,should not be admitted, nor used to counteract the effect of other illegal evidence..</p> <p>Affidavit of suiy prise — held insufficient.</p>

<p>A Release oh-frautfwhich the injured party is submitsto from a strong motive of interest, may be set aside by tho Chancellor.</p>

<p>Mortgage,</p> <p>Sale of thepre-^Xor^agaiMt mortgagor and m01tSllSec-</p> <p>Bill for foreclosure; decree and Sale. '</p> <p>Bill, by tire purchaser-under the execution, in possession.</p> <p>Sale, by sheriff, 'of two lots— for more than the amount óf the execution, is illegal.</p> <p>Interest oCmorl gagee is not vendible under execution. .</p> <p>Mortgagor having agreed that the premises should bé sold under execution, the purchaser acquired his equitable right.</p> <p>Junior incum-brancers.known to the senior mortgagee, should be parties to his bill for a foreclosure.</p> <p>The holder of the junior mortgage, or incum-brance, or of the equity of redemption, is' not hound by a decree of foreclosure to which he was no party — and will be allowed to redeem the estate —although the senior mortgagee had no notice of such claim.</p> <p>Upon a bill by the purchaser of a mortgaged estate, to be relieved from the decree claim of the mortgagee, and for such relief as he may be entitled to, he may be permitted to re deem, under a general prayer.</p> <p>Junior mortgagee, made party to the bill of the elder, for a foreclosure, and failing to defend, will be barred.</p> <p>A mortgage to one of several the otliersnoth-</p>

<p>s o un d° ots e— suit in Chance-jud<nnent'|011for the price, and rescind the contract.</p> <p>j?aet3 an¿¡ c;,._ cymstances of *</p> <p>Vendee of a ering^a ^defect which the venfy1 concealed^ may return, or and rescind the contract — one-cover damages,</p> <p>To have a resale^of a°cFr tel on account of a fraudulent unsoundness, there must be a return, or tender, ofthe chattel to the vendor, within a reasonable time — what that is, must depend upon the circumstances of each particular case. — While the true nature of the unsoundness' (as whether it be permanent’or temporary) remains uncertain, it is not too late — provided the vendee acts in good faith, and no act of his has impaired the value in the mean time.</p>

<p>Warranty of ^aintifft0in° e-jectment^ does to^nserTa count upon the clcniisB of Ins grantor. — The latt®r stricken out,upon motion,</p> <p>Fltf’s proof,</p> <p>Peft’s proof.</p> <p>Notice- to quit is unnecessary, if the tenant disclaims. holding •under the land-Isrcf.</p> <p>A itemand' of possession-- she months before the expiration of the year, is a sufficient notice to quit.</p> <p>An estate conveyed to husband and wife* is not a joint tenancy. Each: -takes the entirety, not a share which can be severed (per tout, and not. per my.) The husband cannot alienate, or forfeit, the estate ; and, on his death,the whole becomes hers. The Kentucky statute, abolishing thejMs ac-crescendi, does ^ husband and Wlie‘</p> <p>Remark of a mother, that land (to. which she had the better title) was the place of her daughter, may imply an intention to give it to the daughter, a parol gift, or the like ; but should not be construed into an admission of an adversary title in the daughter.</p> <p>instructions entirely abstract, .are erroneous.</p>

<p>J.Brown’s will,</p> <p>Bill, by the</p> <p>jjev¡ t0 j ^ (the son>) ;m(i forego!-with-out issue, then to Mrs. Pike for life, remainder to her daughter.</p> <p>Devise to Mrs. Pike — #-c.</p> <p>Residuary devise ' to J. B. ftho son.)</p> <p>Chancery 1ms no jurisdiction of the suit of the heirs, to recover the real estate devised to others — the reme-■fly is at law.</p> <p>Questions lip- ' on the descents, devises and limitations over of slaves, under the statutes of Ken. suggested, and waived.</p> <p>A devise to J., the son, and if he “ die before he arrives at the age of 21, or without issue,” then to C. §-e. construed to mean a failure of issue at the time of the son’s death, and held to - be a good limitation.</p> <p>If an estate is devised to one, and in- case he dies without issue, then to another, and the first devisee dies in the life time' of the testator, the devise does not lapse, but passes to the second devisee —otherwise, if the first devisee survives the testator.</p> <p>The testator, in the-first devise — to his son, declares that, if the son die with out issue, “ all that is hereby given to my son,shall be the inheritance of my daughter and by the last clause, devises the residue of his estate to the son,withoutany mention of the daughter. The son having died without issue in the life time of the testator— -held, upon the presumed inten - tion, as indicated by the entire will, that the daughter was entitled to the “residue,” by virtue of the limitation in the first devise. ”</p>

<p>The avoidable winpe confirmed, by slight sanees! after he is of age.</p> <p>^ a contract during infancy, and after he comes, of age, sells the property acquired under it, and fails, for a long time, to. give notice of a disaffirmance , he is bound by the cpntract.</p>

<p>Scire facias on a judgment of eviction.— Plea, that the judgment was entered, by agreement, with a condition annexed, that if the def’t paid, Sr c. — Replication, that plaintiffs were infants when the agreement was made. Demurrer, decision, 8fc.</p> <p>Plea, to a scire facias on a judgment, that the agreement by which a condition was annexed to the judgment, was made while the party was an infimt, is insufficient, and the issue, on the allegation of infancy, is immaterial.</p> <p>A party cannot disaffirm an agreement, made while he was an infimt, that a judgment, with a condition, should be rendered in his favor and have the benefit of the judgment, without the con dition.</p> <p>If the plea be bad, and an immaterial issue be formed on the subsequent pleadings, and found for plaintiff, the judgment will stand; for the defendant, having com mitted the first fault, cannot take advantage of the immaterial issue.</p> <p>Pleas are to he taken according to the common understanding of the terms used. — Plea averring an agree ment that deft should ‘ pay in the clerk’s office, to be received by the lessors,’ Sfc. and then averring,he did deposit (the sum) with the clerk, according to his undertaking, (without saying Tor the plaintiff,) is sufficiently certain.</p>

<p>Widow is no't entitled to dower-in the slaves of the husband, emancipated by his last will and ■testament.</p>

<p>Covenant sued upon, -with an agreement endorsed.</p> <p>Averment- that •the only incum-brance was' removed.</p> <p>_ Pleas, alleging subsisting liens. Where there was an agreement, endorsed on a covenant, for the payment of money, that obligee should removeall liens, fyc. from certain property, before the obli-gor should be forced to pay— a plea averring an existing state of facts, from which a lien might thereafter arise, (or might not) is insufficient.</p> <p>•The plea (in such case) must she’., the nature ■ and character of the lien.</p> <p>The lien of a partner, for a balance (on the partnership accounts,) is not an incident of the legal title to the efiects ; but results from the partnership,and is not affected by the mortgages of either partner on lira share,</p> <p>Plea, tirar a lien> xvas asserted, held to ho bad-</p> <p>Wherc the obligation is for payment on a day certain, and an endorsement stipulates that all incum-brances, liens, Ifc. shall be removed before the obligor shall (ly .lost, by a be forced to pay- the right to demand payment, is postponed, not whol-failure to remove the lions by the day.</p> <p>The pendency of a suit, by* which a balance, and lien to secure it, is claimed, does not constitute an incumbrance within the purport of such endorsement.</p> <p>Each partner has a lien, by operation of law, upon the partnership effects, for any balance in ‘his favor, upon the partnership accounts.</p> <p>A stipulation to remove all liens, incl deles the lien of a partner, for his balance on the partnership accounts ; and the failure to remove such lien - the removal being a condition precedent, « — may be pleaded and relied' on at law.</p> <p>An obligation for the payment of money, with a condition endorsed, that ob-ligee shall remove all incum brances from certain property, before the obligor shall be forced to pay— is a dependent covenant, upon - which no action lies, without a performance of the condition.</p> <p>The lien of a partner on ths partnership ef•fects, for a balance due him on the partnership accounts, is not limited tq the balance accrued at the time of the dissolution, but is co-extensive with the transactions on the joint account.</p>

<p>Affirmation, in an answer, that clefendant does not ‘recollect’ having done an act, is not tantamount to a direct and unequivocal denial, nor to a declaration that he does not helieve he did it.</p> <p>An authority to sign the name ofa party to a title bond,may be presumed, (in a cou’t of equity) from his knowledge of, and acnuiesence in, the sale — when the denial of the, answer is not wholly unequivocal.</p> <p>Use of a lot, Rnd interest on the price, held to halarme each otjier.upon a re-scisión of aeon-tract of sale.</p>

<p>History of the controversy.</p> <p>Evidence in this 'Case.</p> <p>instructions.</p> <p>The warranty of the ancestor — lineal, collateral, or commencing by dis-seizin — binds theheir (in Ken tucky) to the ex tent of the value of the lands to him descended: no further.</p> <p>And the action of the heir will be barred for so much of the land held under the warranty of his ancestor, as is equal in value to that which he took by descent —and no further.</p> <p>Parcener is not bound by the warranty of his ancestor beyond the value of his own share.</p> <p>A covenant of warranty, in a deed made by a commissioner, in pursuance of a decree, binds the (constituent) grant- or, nncLhis heirs, as effectually as Ms own proper • deed.</p>

<p>Case of interfering land claims. -^Statement of the various titles and interferences .</p> <p>The act providing, “that not more than two new trials shall ho grantedto the same party in the same cause ’ does not so operate as to prevent the court of appeals from reexamining the questions oflaw reversing, and remanding the cause/br a new trial,after three or more verdicts for the same ■ party.</p> <p>Settlement and continued possession relied on by defendant.</p> <p>Facts relied on by plaintiffs, to counteract the effect of continued possession in defendant.</p> <p>, the result of Ime’notffect upon a controversy.-nut, the vendee of a party who has obtained a judgment of eviction, may enforce the judgment (by sci. fa. ye.) without fraud.</p> <p>After a judgment of eviction, the plaintiff, or his ven-dee, before or after the delivery of possession —may make a lease of the premises,which the tenant may accept, and thus change his tenure from adverse to amicable, and be precluded from disputing the title of his lessor.</p> <p>If the sheriff, in executing a ha-bere facias, deliver more land than the judgment is for, the delivery is good to the extent of the recovery,— and void for the surplus.</p> <p>The possession delivered under a habere faci-as, has relation hack to the com meneement of the suit, and altho ’ the holding of the tenant du ring the time between service of the declaration and notice, and execution of the habere facias, was adverse to the plaintiff,that period cannot he included in the time relied on to bar the pl’tf (or those claiming under him)in any subsequent contest for the land.</p> <p>Where the junior grantee extends his improvement over the line of the older grantee in possession, and afterwards acquires a third title paramount to both, the possession under the new title, will not be deem ed to extend o-yer the whole claim, but will be restricted to the enclosure.</p> <p>Bringing an ejectment, and enclosing part of the land — independent acts, cannot aid each other.</p> <p>Record of scire facias, admitted, without oh jection, in the court below, as proof of the original judgment, will be allowed the like effect here.</p> <p>A deed of land, in the possession of an adversary claimant, made since 1st July, 1824, is void.</p>

<p>Suit on- a bond : peculiar character of the bond.</p> <p>Pleadings : judg ment, for defendant, and writ of error.</p> <p>A suit may he maintained, against a single obligor, upon a writing purporting to be the joint bond of the defendant and another ; and a count which describes the writing simply as the bond of the defendant, or a count which describes it as being signed by another, as well as the defendant, will be sufficient.</p> <p>That obligor 8f obligee are the same person, is not a legal deduction from the identity of the names.</p> <p>Voluntary acts of an obligee, which suspend his right of action : as his marriage with, the obligor, appoint ment of Ins debtor,who accepts the office, executor, ^c.-do, in general, release the cause of action,to such deb. tors — and their co-obligors, also ; for a release to @ne is a release to all.</p> <p>If tvvo'persons make ajoint obligation, paya-aole to one of themselves, it is void as to the latter, and is, in effect, the sole obligation ofthe other - against whom the obli- ■ gee (though his own name is to the bond as a co-obligor)may maintain his action at law, for the whole sum.</p> <p>In joint (as in joint and several) obligations, each obligor is responsible for, the whole undertaking.</p> <p>If two persons jointly owe a debt, and both sign a bond for it, payable to one' of themselves, he who is alone liable at. law, upon such bond, to his co-obligor, the ob-ligee, might bo relieved, in equity, from the payment of all above his jnst portion of the debt.</p> <p>Every personea pable, in law, of contracting, is presumed to mi-derstand the le-contract.</p> <p>The same er son cannot he both obligor and obligee,nor pPtl and defendant,</p>

<p>Case formerly in this court— Error in the Report — in 3 J. J. Marshall, 19S.</p> <p>Bht two jurlges sitting here, and differing in opinion, the decision of the circuit court, on the point, prevails.</p> <p>Trial, on a plea of payment.</p> <p>Factsofthecase pearedin.pvoof.</p> <p>A 'party who is induced, by fraud or imposition, to enter a credit for a payment -- as, for the amount of a note which turns out to be forged,in whole or in part — may disregard the transaction, and cancel the credit.</p> <p>A note given, for a debt secured by a previous . similar note',which had become due, is no satisfaction ofthedebt. But if the parties-to the ne v note are different, it may be pleaded-as an accord and satisfaction. Where a Bank discounts anote for the purpose of renewing a former loan, in the usualway, the negoeiation seems to be equivalent to a new loan, and an independent payment of the old_ debt — not merely giving one note as satisfaction of another. ^</p> <p>A question whether a note was given for a loan, or merely as a payment of a similar note already cine — is one of fact, to be decided by a jury-</p>

<p>Suit for the da-ajury had^awarded the pltf. oftheroadthi-o’ hjs land.</p> <p>Judgment ofthe circuit court.</p> <p>An action may be maintained against a corporation, upon a liability imposed by the statute by which it is established; or which results, by implication of law, from its acts; or upon a judgment.</p> <p>The act incorpo rating the Mays» ville, Washington, Paris and Lex. Turn. Co. provides a mode of indemnity for the owner thro’ whose land the road may pass. And he may prevent the construction of the road on hisland, until the damages are assessed, and paid.</p> <p>Xf the company and the owner «oree, that the work may go on,and the damages be assessed afterwards, the law implies a liability on the part of the corporation, to pay thedamages tv-hen assessed.</p> <p>The owner may stop the progress 'of the work npon his land, at any time before it is completed.</p> <p>Questions, as to the rights -md powers of the owner of the land, suggested —not decided.</p> <p>Where an act establishing a road company provides for indemnities to the owners of the land thro’which the road may pass, and the amount of damage to an own-' er has been ascertained, in the mode prescribed by the act, the corporation is liable for the payment, and to the .action of the owner, without a stipulation under the seal of, the corporation, or any express contract. — See ■unte, p. 87.</p> <p>The right of the owner to indent nity for having his land appropriated to a public road, is founded on the law of nature, and the constitution -the statute gives the remedy-</p> <p>Debt is the appropriate action, to recover of a corporation, the dam ages,allowed by a jury, according to law, to the owner, whose land has been taken for the road of a corporation.</p>

<p>íf a party in pos session of slaves claimed by another, acknowledges the title of, and holds un--der, the latter,, such holding is not adverse,and the statute of limitations does not run against the claim — if admitted within? live years.</p> <p>The fact that the comp’t was lulled by delusive hopes of compromise, till the statute had bur-red his claim at law, does not give the chancellor jurisdiction.</p> <p>Want of averment — in a bill filed to avoid the statute of limitations, on the ground that the deft had countenanced complainant’s claim- and encouraged hopes of compromise— that such, acts of the • defendant were done within five years, is itself ground of demur ret to the bill.</p>

<p>guit by ¿ wid_ o*, to ascertain due 'proportion ofhglehpi.°cee$s slaves, which-bad been sol(* by agreement of those interested;</p> <p>By the act of 1798, slaves descend and pass as real estate— the act of 1797, for the distribution of intes-tates’ goods and chattels, therefore does not ap ply to them,and the right of the •widow to dower in the husband’s slaves depends on the common law, (restricted by statute;)and she takes, for life, a third part of the . slaves of which he diedpossess-ed-not of those which he had held, but had parted with.</p> <p>The heirs, administrator and widow having agreed, that the slaves of the. intestate should he sold, and the proceeds divided according to their respective rigbts-held,that the widow is entitled-not merely to the use of her proportion of the money for life, upon giving security for its payment to the heirs upon her death-but to so much, absolutely, as her life estate in one third of the slaves may be worth, tefevence being bad to their productiveness, by 'hire, ^e.</p> <p>The value of ail interest in slaves involved in a suit in chancery, should he ascertained by ajury</p>

<p>When the entry of the tenant was in right of his wife, who was in .possession of the premises, (and so not a forcible entry,) he is not liable to eviction by a warrant, although he may have taken a lease from the plaintiff after the entry.</p>

<p>■Comity ct. may compel the father of a bastard child to give bond and security for its maintenance. — But has no power to render judgment against a putative father without a trial, and proof of the charge ;or to order execution,or give judgment, for the instal-ments, (before bond forfeited,) on the order for maintenance.</p> <p>A surety in the recognisance for the appearance of one charged as the father of a bastard,incurs no liability for its maintenance —upon failure of the principal to appear, the rec-ognisance is for feited, as to him and the surety, andboth are liable for the penalty.</p>

<p>Statement of tlw fact6,</p> <p>Bilj,</p> <p>Answer-,</p> <p>Decree of the . circuit court.</p> <p>Defence made at law.</p> <p>An attempt at law, to plead and rely on matters insufficient, will not bar relief in equity on the same matters.</p> <p>Vendee of land having agreed to bring suit to establish the title of his vendor, hut failing, after diligent search, to find the lines or corners, or any title in his vendor, may rescind the contract, without any such suit.</p> <p>Mistake in writing a contract, is ground for a rescission.</p>

<p>Suit for freedom —in which several pltf’s join-</p> <p>Defence — the pltf’s are slaves.</p> <p>Writings offered in evidence.</p> <p>A power of attorney authorizing the agent to sell, vests no title in him.</p> <p>The phrase— “ personal estate” — in wills and contracts,in eludes slaves.</p> <p>A writing which recites that I) B is unable to manage his affairs, and 'has deeded his farm to GB, in consideration of future maintenance,and pro ceecta — “ ana if said G B shall provide for me and my beloved wife during our lives, as aforesaid, (I do agree in addition to the land) I have delivered and give up to the said G B all my personal property of all and every kind whatever, and authorize him to do what he please with the same,”is an executory contract, that vests no present title in the grantee: there was no error in rejecting it, '. hen offered ' as evidence of title in the grantee, to slaves which the grantor afterwards emancipated.</p> <p>Different plaintiffs cannot join, where the cause of action is not joint — a family of slaves can not be joined in an actiop for their freedom.</p>

<p>Tn a bill upon a lost note, signed by a principal and surety, the principal is ame cessary party — ■ or his representatives, if he be dead, although he may have die.d insolvent.</p> <p>Allegations in a bill, of fhe-fleath and insolvency of an individual —facts not presumed to be with, in the personal knowledge-of the defen’t, nor charged -to be so, nor noticed in his answer— cannot he taken. Q3 true,'without proof.</p>

<p>Error, to render judgment by default, while a negative plea, cast ing the onus upon the pltf. remained in the cause, not answered.</p>

<p>Where a judgment is enjoined as to a part of the debt, the interest and'sheriff’s commission on that part, should be included.</p> <p>Security in an injunction bond (the injunction granted out of court) is to be approved by the clerk — and so much of the or-* der granting an injunction,as de signates the security to be taken, is a nullity —the injunction Is valid, altho’ the clerk take a different security from that designated in such order.</p> <p>*Acts of Sess. 1826,127.</p>

<p>Covenant,made voluntarily -not based upon any consideration,ei ther valuable or meritorious,can not be specifically enforced in equity. — 'X he moral obligation to provide lor a wife or children has been held sufficient to uphold such a covenant ; but the same principle does not extend to collateral relations.</p>

<p>Circuit court of ons county has no jurisdiction to enjoin a judgment rendered, in another.</p> <p>The dismissal of a bill aosoluce-iy, by a court which had no jurisdiction oí th« case, is no bar to another suit.</p>

<p>Statement of the</p> <p>In an action to recover slaves conveyed (by a, third person) to the plaintiff, in trust, to secure certain debts,ev idence that the debts had been “paid or nearly so,” was properly rejected — it would bear only upon a question proper for chancery.-See Sco-iee vs. Jones fyc. ante, 13.</p> <p>Evidence, that the defendant— in detinue for slaves,which he had sold, as the agent of another, had some knowledge of, and co-operated to defeat, the title of the lawful owner, v/as proper for thejury, and sufficient to preclude a non-suit.</p> <p>Anypersonwho has had tne pos session of, and has sold, used, or detained, the property of another — either for himself, or as the agent,or servant, of a stranger — is liable (in detinue) to the true owner, for the property, or its value — whether he was, or was not, conu-sant of the right of the true owner-and whether he had, or had not, parted with the possession, before the suit. See Judge Underwood's opinion, post.</p> <p>The authority of an agent can never exceed that of the principal. —No one can confer upon another a power which he does not himselfpos-sess ; or authorize another to act illegally.— Whoever,being of legal discretion, acts tor-tious'h/, or in-termeddles with tire property of another without his assent,or the authorityoflaw, is personally responsible to the injured party and the fact that it was done as the agent, or by the request, or command, of a third person, is iio excuse.</p> <p>Purchaser of a chattel,from one in possession, who had no title, nor authority to sell, is responsible for the value, to the true owner.</p> <p>An agent, who sells a chattel for one who had -no right to it, and is made responsible to the owner,must look to his employer, for indemnity.</p> <p>A sheriff who levies on, and sells, property represented,and believed (without any suspicion to the contrary) by him, to be the property of the def’t in the ex’on,but which turns out to be the property of a stranger, is liable to the stranger for its value.</p> <p>Assumpsit wili not lit) against, an agent, uuore ceivetf tiie money to wnich a strangei; was entitled, and without knowing oi‘ the stranger’s right, paid it o-vei 'to ins p¿in-cipal — tor the law wiiliioi vm-ply a j.rüVÁse. to whore there was no. knowledge of the right to receive.</p> <p>Ji i ,../£<*■ Jiuc bai-lee til j;uó£¿iS~ SÍO/¿} ¿Buy no', be nabit . it- *• out a hen t J. anti icíuíhú.; , ■ , iron, t ¿y c ¡ prí.ioiu^ * bill, . suit</p> <p>Detinue may be maintained against a defendant who has had possessionofthe chattel sued for, but has parted with the possession (without being dives'ted of it by authority of law,) before the date of the writ.</p> <p>An innkeeper, who receives the horse of a guest (as he is bound to do,) merely to shelter and feed him, is not answerable to the true owner of the horse.— But by the sale, exercise of control over, or detention of, the horse, without the sanction of tlie owner, the innkeeper would be rendered lia-No.</p> <p>Trespass, iro-against who car-gSL tWprop-erty of another seilt. 113 as"</p> <p> Judge Underwood’s Opinion. </p>

<p>Traverse, taken by two defendants, in a'warrant of forcible entry— inquisition found true as to one : untrue as to .the other.</p> <p>Suit on the tra-versebond: declaration: breach.</p> <p>Pleas, and issues.</p> <p>Arerdict c.</p> <p>If two pleas, alike, in substance, are filed, and issuers taken on one, a failure to notice the other, is not cause for reversal.</p> <p>Similiter is not indispensable— especially after verdict.</p> <p>Two defendants werefound guilty of forcible entry and detain-er. and traversed the inquisition :. the declaration,/ on the traverse bond, avers'(for breach) that the traverse was not prosecuted with elfoct: the record, produeedin evidence, shews the inquisition found true as to one, untrue as to the other— it does not support the declaration, and the tarianre is fatal.</p>

<p>Appeal^ should ed for a defect jn !he aPP®a] bond, provided appellant will forthwith give» new and sum-cient bond.</p> <p>New bond may ^dfy — ^hent-ver the existing .defbct?ve.e0liUert</p> <p>Clerk’s duty to pealtend — piuC ty should not jy/euor.106^</p>

<p>Statement ofthe</p> <p>Points to be decided here.</p> <p>That the masfeV of a steam boat is authorized to make contracts to carry fi-eight, is a presumption arising from the nature of his employment.</p> <p>Queries — as to his liability on the bill of lad* ing.</p> <p>The contracts of the master of a vessel, (within the scope of his authority,) bind the owners.</p> <p>Assumpsit lies against the owners of a steam boat, in favor of the injured party, for a breach ofsuch contract. - — Trespass on the case, for damages resulting from a breach of duty.</p> <p>The owner of the goods has the right of action: inform, ex delicto, or .ex contractu, as thecase maybe.</p> <p>The owner of freight must he deemed the consignee, where none is named (the blank not filled up,) in the bilí of lading.</p> <p>Bill of Exceptions shewing that the ownership of goods was not contested, but admitted, in the court below, received as sufficient evidence of the fact here.</p> <p>Query--whether, when goods are shipped in a vessel of a bet-rer class (steamboat,) ‘withthe privilege,’ (as expressed in the hill of lading,) ‘ of reshipping on any smaller, good boat, in case the river shall he too low,’ they may he transferred to a vessel (keel boat) of an inferior class — two judges divide in opinion. — But-if the boat to which the goods are transferred, he propelled in a manner different from that for which she was calculated, and by which the danger and. risque is increased, the owners of the boat in which the shipment was first made, are responsible for the. loss, or damage> of the goods.</p>

<p>Exceptions tods cisions of inferi- or courts .should he taken, as the decisions, respectively, are rendered — tho% the right being reserved, they may be written out and signed at any time during the term. — . But — If a bill of exceptions, sign ed after the trial, uses the present tense,(‘excepts,’) implying that the exception is then first taken, still if it be signed without objection from the adverseparty, it • will be presumed, in the appellate court, that the right was reserved.</p> <p>A party is not hound to state what he is about to prove by a witness whom he offers. And if a competent witness is offered, it is error to reject him, and ground for reversal, although it do not appear whe-bis testimony would have been material, or not.</p>

<p>Statement of the facts.</p> <p>Bill.</p> <p>Answer.</p> <p>Deoreé</p> <p>If vendee ofland discover a paramount title,and, without eviction or suit obtain the bond of his vendor for an agreed sum as an indemnity for the anticipa-tedioss,thecon-sideration is sufficient to uphold the bond.</p> <p>A payment to the holder of an obligation, may he presumed— when it does not appear- at what time or on what consideration it was made — to have been made on account of the obligation.</p> <p>If the vendor of land covenant with his vendee, that if any of the land is lost, he will convey, of another tract, two acres for one, and a paramount title appears, of which the vendor has notice, and after wards sells the land outofwhich the indemnity was to be made, for a price per ■he may he held accountable to the firs l vendee, for the proceeds of twice as' many acres as he lost, although the amount he double the consideration that he paid for it. — The vendor cannot he relieved against his bond given for a compromise on that principle. acre equal to that he received for the tract first sold-</p> <p>If a complainant is entitled to any relief' (tho* partial) be recovers costs.</p>

<p>Plea of nonest ^timonlrL injunction bond, cierkfcasts the onus probandi ^asffioffierca5 ses — For if the attestation were an official act, ^ Signing^it vyouldnot iden-saed^astít onewho signed,</p> <p>Clerks are not required by stat>-ute, to attest injunction bonds —hence such attestation is not strictly official: tho1 very proper.</p> <p>Instruction that no state ofproof could warrant, is ground for reversal, thoughit does not appear what the evidence was, to which it was intended to apply.</p>

<p>Contracts.</p> <p>Note for part of the contract, judgment on it, and bill in chancery, with injunction.</p> <p>Answer: cross bill and answers —new parties and answers.</p> <p>Decree — and writ of error.</p> <p>after the decree, should not be allowed.</p> <p>When a rescission of a contract of sale is decreed, restoration should he ordered of the things sold.</p> <p>One makes a bargain for the sale of land, receives part of the pay, and dies: his vendee transfers the bar gain to a third party, and with the latter, the guardian of the decedent’s children enters into f(ofdoubt" ful construction as to its obligation on himself, but,) stipulating that his wards shall make a title as soon as a balance of the consideration is paid — a bill for a rescission of the contract, which treats it as one binding the guardian himself to convey, alleging that he has no title, is erroneous and insufficient. The decedent's vendee, and his heirs (the guadian’s wards) ■ ere necessary parties. It appearing, in such case, that the complainant might have a specific execution, he is not entitled to a rescission, of the contract.</p> <p>Where the’ hill for rescission (in such case,) alleges that complainant paid a sum of money on account of the purchase— but does not say to whom, whether to the guardian, or to the decedent’s ven-dee, and the defendant, tho’ he admits that the compl’t “.was to stand in L’s shoes,” (i. e.in the place of the decedent’s ven-dee,) yet denies that he (the guardian) ever-received a cent, a decree against him for repayment of the money cannot he sustained. In this view of the case also, the wards and decedent’s vendee were necessary parties.</p>

<p>Two papers of-ct!6as 'wills °of D. Neal — one other rejected— separate writs of error to each decision.</p> <p>One only, of tlie three subscribing witnesses, being produced, to prove the execution of a will, he should be credible, and his testimony direct and positive ; his “ impressions,” and statements “according to the best of his rec-olection,” are not sufficient.</p> <p>proof 0f tes_ tator’s capaci- and unsatisfactory; and k ap-peanng that, if the will was sign haste*3 and without the nybu^tim suhl scribing nitnes-raetéT^of C>thé writer of the onlyb^idmsdh his wife, and young son ; — that the same writer had written, and the same witnesses attested a former will, when the testator was, confessedly, not of disposing mind — are circumstances against the authenticity of the will.</p> <p>An inference, in favor of the validity of a will, drawn from the fact, that many of its provisions are like those of a former will, executed by the testator when undoubtedly of disposing mind, is more than rebutted by the iactjthatthepre-tended last will, bears a still closer resemblance to a paper purporting to be a will, signed by the testator -when he was clearly not - of disposing mind-</p>

<p>A recognisance for an appearance to answer a charge of ‘ gaming,’ simply ; scire facias describing it as a recognisance to answer an ‘ indictment for gaming by setting up and keeping a faro bank upon which money was bet and won and lost the variance is material.</p> <p>A recognisance for an appearance to answer a charge of ‘gaming’ (without describing the game, to shew that it was indictable,) will not support a judgment on a scire facias, for a failure to appear.</p>

<p>History of the, CdS°'</p> <p>A deed not re ’ corded within the time limited by the statute, is void as to creditors without notice of the conveyance at the time their debts were contracted : — such unrecorded conveyance willnot operate as a mortgage, nor create any lien whatever,'in favor of the grantee, against such cveditors.-Q«e-ry — as to the effect of notice when the debt was contracted.'</p> <p>A judgment is not void, (tho’ it may be reversible,) for a defect in the mode of entering it.</p>

<p>Wm. Spiller’s Will — in which an afterborn son was pretermit-ted, who claims under the will</p> <p>A devise, or bequest, to a testator’s children, is not confined to those born at the date of the will_Those bom after the date of the will, and prelerrail-ted, and not provided for by settlement,'— even those born after the death of the testator, are entitled to shares equal to those born before the date of the will —by the common law rule of construction in Engl and; in Ky. by force of tire statute,such chil dren are entitled to such shaves as they would have taken if no will had been madp.</p> <p>II Dig. 124246</p> <p>A residuary devise to the testator’s children, in general terms, (intendedmere-Jy to dispose of s,uch estate as may have been accidentally omitted in the morespeeifiede-vises,) will not prevent the af-terborh, orpost-humous, children from taking (under the statute of K.) shares equal with those bom before the dato of the will.</p> <p>The after-born tSSewüíof the father, may cwylftóm each devisee, or from Sfaera'detSe™ the proportion which such devisee is bound to contribute, without making the other devisees parties. Want of notice, will not avail the purchaser under a devisee, against the claim of a child pretprmitted in the will, for contribution out of the estate purchased.</p> <p>A tract of land having been devised by a.testator, sold out by the devisee, and divided among several ■ purchasers —another claimant obtaining a decree for a share of the devise,his portion may be laid off in one body, from any part of the original tract, in the most conve-nientinode,witlv respect to the improvements, §*c. _ and need not be taken in parcels from each purchas-er.-Those from whom it is-taken, will be entitled to indemnity, pro rata, from the others.</p> <p>Where aclaim-EwMchhe'was pretermitted, ob gainsuderisee' or his vendees, the landTto he allotted to him, laid off as6 to</p> <p>leave to the defendants their improvements, as far as a convenient form of division will allow. Improvements included in theclaim ant’s share, so far as they constitute additions to its value, at the time of the allotment ; also, the waste, deterioration of soil, rents and profits, from the use of the land, are to be valued,the accounts adjusted, and balance decreed.</p>

<p>AprEAi, lutoar A J. P.</p>

<p>ERROR CORAM VOBIS,</p>

<p>Ejectment: ten-“ndormadedé1 fendants, ¿fe.</p> <p>If the tenants in possession, together with their warrantor, be admitted defendants in ejectment, there can be no recovery against them, upon • evidence which would not. authorize a recovery against him also. And depositions, taken without notice to him, should not be' read against- o-thor defendants —rhis vendees, ■who had notice. But, where the fact of their holding under him, does not appear by the bill of exceptions, this court will not reverse for contrary decisions of the c,ourt beloWi A'register of the births, in the hand writing of a deceased father, is admissible toprove the ages of the children. Comparison of hand-writingis, in general,notev idence to prove - a, signature. —</p> <p>Where the writing is tdo old for ¡i living witness to prove it; or in corrono ration of other proof, conipar-. ison is sometimes admitted.</p> <p>A witness not interested in the particular suiton trial, is not rendered incompetent by having an interest like that of the party by whom he is offered.</p> <p>A child born after the date of a will, andpreter-mitted, is entitled to the same share of the father’sestatethat he would have had if there had been no will.— See ■ Haskins fyc vs. Spiller. ante, 170. •</p>

<p>Suit by last endorser, who had paid the debt, against his endorser.</p> <p>'Special verdict, and judgment for defendant.</p> <p>Tacts found by the jury.</p> <p>If the holder of anendorsednote fail to uso all and each of the ordinary remedies, direct or collateral, to coerce payment from the maker, the endorsers will be exonerated. —And although' the holder af-terwards obtain payment from his immediate assignor, thelat-ter, nevertheless, loses his right against Ms assignor, by the laches of the holder.</p> <p>Due diligence is a question of law.</p> <p>The Kentucky statute, abolishing imprisonment for debt, is not the law of the federal courts.</p> <p>Jailer is bound to receive persons committed by authority of the U. S. and keep them until discharged by due course of the laws of the TJ. States.</p> <p>If the jailer, without legal authority, discharge a debtor committed under ex’on, he becomes liable for the whole debt.</p> <p>If the holder of an assigned bbligtttion attempts to pursue the obligor to insolvency, and in the course of the proceeding, an officer so conducts as to render himself liable for the debt, the holder ofthe obligation must avail himself of his rights against the officer, before the assignor will be responsible.</p>

<p>If the commissioner, appointed by a chancellor to, sell land, is directed by the order, to sell so much as may be necessary to pay the amount decreed, and he sells the whole, for more than is necessary for that purpose,the act is void.-The sale sale bond willbe quashed, and a resale ordered.</p> <p>The acts of assembly now in lbrce(since 24th Jan. 1827,) requiring that land oft which executions are levied, shall be appraised before the sale, with a view to its being redemed, do not apply to sales by commissioners under decrees and orders of courts of chancery.. — . Such sales are tobemade without valuation,or right of redemption.</p>

<p>Statement of thecase,</p> <p>The interest of a mortgagee is not subject to a levy and sale • under ex’on neither where he is sole defendant; nor where the attempt is to levy on and sell the entire estate, under execution against mortgagor ' and mortgagee. .</p> <p>A defendant directed an execution against him selfandhis sureties, to be levied on an estate that hehadmort gaged-to them, for their indemnity which, rvithout consent or knowledge of the mortgagees, was dono, anda sale made of all the interests, or the fee simple entire: held that this did not amount toawai-ver or release (of which there was no acceptance,) of the mortgagor’s equity ofredemption, so as to invest the mortgagees, or purchaser at the sale, with the wholetitle; and the sale, being of the fee simple, was invalid A release which is not accepted, has no effect. Denial of notice of a mortgage duly recorded, is oi no avail a-gainst the mortgagee.</p> <p>Want of notice ofamortgageon an estate purchased at a sale under an ex’on against the mort gagor, may, in some cases, entitle the purchaser to elect to hold the equity of redemption— hence he is a proper party to a bill to foreclose the mortgage.</p> <p>Sureties indemnified by mortgage,cannot delay the creditor, while they subject the mort gaged property.</p> <p>Parties, failing ■upon their original bill,but succeeding upon an amendment (in which new com plainants join- , ed,) have a decree for so much of the costs in this court, as the amendment gave rise to.</p>

<p>A party purchased property at a sheriff’s sale, and afterwards applied to the chancellor to he relieved against the sale bond, alleging that he bought upon the representations of the plaintiff, that the property was subject to the execution, when, in fact, it belonged to a stranger : held, that he must make out ancPiuT certainty as to defendant frithe ex’on, or the terest in the pro" the complainant t0 relie£</p>

<p>The owner of a land warrant ap plies to a deputy surveyor,to have it entered and surveyed.— The dep.having another warrant in his possession, anticipates the present applicant, • enters that other warrant upon the land v hich he intended to appropriate, procures a transfer ofthe warrant to himself, andhas ' the land surveyed, accordingly, the same day. The applicant’s warrant is also entered immediately after the other, and the survey made the next day, covering most of the iand so appropriated by the deputy. The applicant then files his hill in equity, to compel the dep. to relinquish the in ■terference: held '■that, as the warrant used by him, came first to his hands, as he was not prohibited by law, from appropriating land for himself, and as he might legally use his information, however acquired, as he pleased, chan eery could af. ford the complainant no redress.</p>

<p>Suit, against a com’th’satto. in the name of an individual who had stolen money, and exchanged part of it for banii notes ; to recover (for the use of others,) the amount of the notes,i. hieli had been deposited with the alto, and V ho, upon conviction of the thief,gave them up to the man from whom the money was stolen.</p> <p>Upon the QOa_ viction ofathief owner is entitled to restoration of the thing stolen, or its produce: the thief, or robber, and his assigns, have no claim to it, and can maintain no action to recover it.</p> <p>The right owner of stolen property may have restitution from a.bonajide chaser»-</p>

<p>Statementofthe case'</p> <p>Advancements instaresareuot to be brought m-to hotchpot in oFpersoraafty1 norvice versa, "Advancements inland,orsiaves be brought*1 into divHon1 of tile ther, or both,</p> <p>Distributeemay t^distríbutimf 'and retain his advancement-</p> <p>A testatrix, in maIans a be-questtoherson, used language hB1' dx-pentatlón; and reason for the thatmfadvaneement made by would he brought into that hl>he could not retain tfu-ad-claim the legacy t0°-</p> <p>A distributee agreeing to take a specific sum, (horse and saddle,) and waive his right to distribution,hé and his creditor at-taehingthefimd, by bill filed after the agreement,are bound by it.</p> <p>Bill,by a credit- or, against adm. heirs, fyc. to subject the interest of one of them, to payment of a debt, costs to be given against the debtor only.</p>

<p>Facts and circumtances of the case.</p> <p>Questions to be decided.</p> <p>A judgment of eviction against a tenant, destroys the relation between him and his land lord; and the tenant may then, without waiting for the ha. fa. to be executed, purchase any 0-ther title for his own benefit.</p> <p>vise or legacy A devisee cannot claim and hold, under a title adverse to that of the testator, any thing devised to him, and at the same time, take a de-under the will. He must acquiesce in the testator’s right to the disputed property, and surrender it to the devisee to whom it is given, or forego the benefit ol any devise or legacy to himself.</p> <p>„ Where a devi-see, who claims some oi the pro. perty devised, by a title adverse to that of the testator, ac-cefves other pro-pertybequeath-thesamTwUh-it is tantamount and'lie wiU° be compelled to sur versary claim to the other devi-</p> <p>2nd question.</p> <p>The heir of r, devisee, or legatee, who was dead when the wiil was made, or died before the testator,does not take tile pro. perty so given-it’is a lapsed legacy, or devise.</p> <p>Personal property of a testator, which being lapsed legacies, or from a-uy other cause, passes not by the will, goes to the general, residuary legatee, if any. Otherwise astoreaZ estate, which, being a lapsed devise, onyhich. from any other cause,passesnot by the will, de-scends to the heirs.</p> <p>The vendees of one who, upon taking under a will, was compelled to relinquish the land which he had sold as his own, but which the testator had devised to others, will be in no wise affected by any partition among the devi-sees, to which they (the ven-dees) were no parties.</p>

<p>Construction of a covenant, in a conveyance by executors, for warranty “ to the extent of their assets ”S¡-c. -and if the land is lost, ‘the purchase money to berefnnded with interest. ’</p> <p>eedby anex-support adec’n hiVowiT cove? nant.</p>

<p>Questions to be deoi,fei</p> <p>Feme covert, ten(Ult “ c°m-mon, dying,leaving children by t,lehusband who survives her, he takes the estate dren^can'niake no valid le^e oflt'</p> <p>Lessee of tenants in common, suing for tire whole tract, may recoyer for as much as he shews title in, and demises by, any of the co-tenants. But a judg’t for more -for the whole, when there are co-tenants on whose title there is no demise, is ■erroneous.</p> <p>A deed transmitted from abroad to an agent in the.co. where the land lies, to be-there recorded, takes effect, by delivery, as soon as it is lodged in the clerk’s office — the assent of the agent to its being recorded, not being essential.</p> <p>Q,iiery — upon the acts of 76 and 97, relating to privy examinations of nonresident femes covert.</p>

<p>Points to he de 0lded-</p> <p>the^deecf made One to- whom land is- stricken off, at a sheriff’s sale, may have to whomsoever he will.</p> <p>to the ‘heirs’ of m whose Land- patented one name it was entered and surveyed,they take l)y descent and it is subject to sale under execution against decedent6tcf his heirs descended.</p> <p>The purchaser conveyeíhy11^ sheriff,under ex fhe^estate^f1^ decedent toxins bas no right to’ use their names, without their consent, in an co°ver\heland'</p> <p>The leval title of a defendant adverseposseser, is subject to levy, and sale, under execution.</p> <p>—JudgeNicho-opinion-See ps. 217 §*c-</p> <p>Sales of laud, by authority of law, are exempt from the operation of the cham perty laws.</p> <p>Where land is levied on as the property of a aefen’t, against whom the possession is held adversely, the valuation must be of the land, (not merely of the defendant’s claim,) without deductionforthe adverse possession.</p> <p> Judge Mcho-iaa’ Dissent. </p>

<p>A judgment in an action at law, upon a covenant, will not bar a suit in chancery for the specific performance of a stipulation of the same contract, to convey land, whereitismade manifest, that the failure, tho’ assigned among other breaches, was not investigated, nor any damages assessed therefor, in the trial at law</p> <p>in. chancery, of bjrformerdecis-ion, is by an-Proper mode,</p>

<p>Plea of nut tiel record,' should not conclude to the eountry-the issue is to be tried by the ct. not by a jury.</p> <p>The only proper issue upon a traverse.is.whe-thei the inquisition is true, or not.' Itilitory pleas are not admissible. i\or can any advantage be taken of irregularities in the proceedings upon the warrant, in the coun try.</p> <p>If two cases are pending for the sameiorcibleen-try, an election may bedir'ected.</p> <p>Whether one man, or another, was in the actual possession of land, at a particular time, is a question of fact, to be decided by a jury-to whom all the facts and circumstances, in proof, should bo submitted, without inslruc-lions as to the inference they may draw from any particular fact.</p>

<p>Executor(by intermarriage) is a necessary party to a bill against the ex’s, for settlement- and distribution</p> <p>A testator devised all his estate to his wife during widowhood, with power, as long as she remained a widow, to sell the real estate, and retain one third ofthe proceeds, with one third of the personalty, for life: the whole to go to the children upon the termination of her estate. She made allowed by law, i dower, and that no renunciation of the provision made for her by the will, within the time and married without having sold the estate : held that she was not entitled tc all her rights under the will were terminated by the marriage.</p> <p>Man and wife continuing to oc cupy the estate, which her former husband had devised to her during widowhood,then to his children, must account for the rents, from the time of her second marriage ; and may charge them for support $-c. — not exceeding the income of their estate.</p> <p>The whole estate being devised to the wife, during widowhood, she can'not be allowed for the support of the children while she so held the estate.</p>

'The Appellee may bring up the record, and submit it as a delay ease, before the expiration of the time allowed the appellant to file the record. But he recovers no costs, although successful. This case was decided in the Franklin County Court, on the 15th of April, 18SS — while the Court of Appeals was in session.

<p>Two suits were referred to arbitrators ; by a subsequent order, in terms embracing only one. of file suits, one of the arbitrators was superseded —the substitute and i his colleague returned an a War'd on -both suits : held that the award'-as invalid, as but one suit was refer-, red to these arbitrators.</p> <p>An agreement o’freferenee(un-der the statute) must state the dispute, or suit, referred and the power ofthe arbitrators is re-striéted to the matters induct-, ed in the statement.</p> <p>Extraneous evidence is not ad mited to show what the parties agreed to refer 3' it should appear by the record.</p>

<p>Trespass— for freedom.</p>

<p>A second donee of a slave (or one claiming un der him,) relying upon thepos session of the donor for five years after the first gift, in bar of the right of the first donee, must show that the latter had . not the possession at any time within the five years ; or that the donor continued, for five years,in the uninterrupted, adverse possession.</p>

<p>Two patentees respective1,^adjoining,tracts— toVake^po^es^ †01£ ih®.ex ■ its. A dispute arose as to the position of the boundary be-fterewesaslip of land claimed enuyof the^el-del- grantee, on madebefbre'the :i™‘°r grantee hadmadeanyim provement upon the disputed slip. The latter (or one claiming under him,) afterwards enclosed a part of the disputed slip — a small peice, more, and another peice, less, than twenty years before this suit, brought (by one claiming under the elder grant,) for the disputed slip : — held (contrary to a dictum in 2 J. J. M. 387-8, ) that the elder grantee was disseized, and the junior grantee protected by the statute of limitations, for so much of tho land only as he had actually enclosed twenty years before the suit.</p>

<p>statementofthe case'</p> <p>Theconveyance of an estate to husband wife, does not make, them joint tenants: they have a tenancy by entireties; neither can alienate the estate, or any share of it, and upon the death of either, the whole belongs to the survivor — the statute abolishing the jus accre-scendi not em- . bracing this description of estate.</p> <p>Tñe remedy for the survivor of husband fy wife, to recover an estate conveyed to them during the coverture, is complete at law ■ — chancery has &o jurisdiction.</p>

<p>Grant of a ferry, under a special act of Assembly — Construction oftho act.</p> <p>By the general law, the owner of a ferry, must he the owner of the land where it is established; and no ferry is to he granted on the Ohio river, within half a mile of one previously established.' — A special act, authorizing the county court of Jefferson to establish a ferry across the Ohio, “from a point about half a mile below Shrieve’s ferry, on said Underwood’s land,” allows the new ferry within half a mile of another —not dispensing with the requisition of the general law as to title; and Underwood having failed to show title in himself to the landing,the order granting the ferry is reversed.</p> <p>Tlie . property oi an individual cannotbe taken (asfo^afery*) without his coi-paid,</p>

<p>History of tlie case,</p> <p>Bilk</p> <p>Answers,</p> <p>peem, 0f t]ie circuit court,</p> <p>Vendee of land (by executory contract) after remaining many years in possession, recovers a judgment on a breach of the covenant for a title. The vendors then bring their bill, against the vendee, for the rents, profits $*c. which the vendee resists, on the ground that there was a paramount title to the land, which he had acquired : held, that as the question of title was not decided (nor properly put in issue in this suit) a decree for the amount of rents and profits was erroneous.</p> <p>A decree settling conflicting claims to land, should not be founded on the mej-e legal title: the equitable title, entry, fyc. should be investigated.</p> <p>There may be cases, where the vendee of land (though a quasi tenant) may protect himself, in chancery, under a superior title acquired from a stranger, against the claims of the vendor under whom he entered.</p> <p>The general rule is, that, upon a decree rescinding a contract of sale, the possession must he restored to the vendor. — -But, if the rescission he the mere effect of a recovery at law, for a breach of the obligation to con vey, the vendor will he left to his legal remedy, to regain the possession. The chancellor will notinterfere,unless other circumstances give the jurisdiction, and also constitute a proper case for relief.</p> <p>Restitution (of land) is a matter of local jurisdiction. Tho’ where other circumstances give jurisdiction over the parties and their contract, and the restitution is a mere incident, it may be decreed in another county.</p> <p>If a party has a good delence at law, (to the whole or part of the demand) if fails to present it in due form, or it is disallowed by the verdict, chancery cannot relieve him.</p> <p>A plea', in bar of the action, which sets up a defence to apart only, (as the interest,) is bad on demurrer.</p> <p> Judge Under-™°°{d’s </p>

<p>Statement of the proceeding in the county ct. and it the under whiche they were had.</p> <p>Tlie act authorizing co. courts to discontinue ferries, must be strictly pursued.</p> <p>The notice, or summons, (or order authorizing it,) to the owner ofa ferry, to show, cause against its being discontinued,must apprize him of the nature of the complaint.</p> <p>Two causes only will authorize an order discontinuing afer-ry — 1, failure, for six months after it is granted, to pro vide hoalsand hands; 2, its being disused and unfrequented for two years.</p> <p>The appearance of the owner of a ferry, summoned to show canso against its discontinuance, does not waive the necessity, of due notice to him, of the the grounds of the motion.</p>

<p>Case — of a bill, with injunction to restrain a multipiicity of warrants,forthe tolls received by the tenant of a ferry,- the subject of a suit in chancery, and leased u dei an order of court.</p> <p>A court ofchan-cery having ordered a ferry to he leased — the tenant remaining in possession after his lease expired— the order still in force, is entitled to the tolls.</p> <p>An order of a court, appointing a receiver, to keep up and let out a ferry, will be presumed here — nothing appearing to the contrary — ■ toberegularand valid.</p> <p>A chancellor having made an. order, in a suit between parties contending for a ferry, appointing a curator, 8f directing him to lease the ferry : it is competent for the court, to protect the lessee, and restrain tiny parly to the suit from annoying him with actions involving any question embraced by the chancery suit. — And this may be done, by a new bill, with injunction ; but more appropriately, by order in the former suit.</p>

<p>Conflicting ti-titles and possession 0f the Parties.</p> <p>Where a patent ofianítoamim who was dead title vests’ in forcejo/ the statute; and, if the patent issued before the date of the act, (1792,) their title did not commence till then.</p> <p>The possession of one tenant in common is deemed the possession of all— nothing appearing to the contrary.</p> <p>When a grantee enters upon his land, his possession, by construction of law, extends to the boundaries ofliis grant; and if a junior grantee enters on the land, the elder will be ousted of so much as the junior actually encloses, and no more ; for, tho’ an actual entry will, a constructive entry will not, oust a tenant whose possession is merely constructive.</p>

<p>Where several signederro-neons instruc-ble^to ^either” are given, it is versal,</p> <p>Whether property alleged to belong to a defendant in an execution, was liable to a levy or not, is a question for the jury, and an instruction that assumes the liability, is erroneous.</p> <p>.A deposition being admitted, when objected to, no notice or cross examination appearing in the record, is error.</p>

<p>That there was ri0VJSlble alte-tual possession †,.^- fen-ed, by deed, ei°“ same family, is not, per se, evidence of fraud: but a fact which may be submitted to the jury, whose province it is to decide the question, upon all the proof.</p>

<p>Action; plea; andCialjud^nmnt for plaintiff.</p> <p>áíf vastavit, aver-iffntestatecame t0 the. hands, AnotuMge” of the adm’r, suf-that^oods^md c!ialteJs> suffi-to his hands to be administered #c.) is bad on demurrer.</p> <p>Plene admin-istrara is a good plea (by-statute,) to an action of debt for a devasta-vit.</p> <p>Plea of nil de-bet, or of covenants performed, to a declaration in debt, for a devasta-vit, is bad, on demurrer.</p> <p>Property of a decedent which (by act of Nov. 1821,) is exempt from execution, passes to the widow and heirs,if any; and is not assets to be administered.</p>

<p>If notice of a "motion be given, but not entered in court on the appearance day specified in the notice, it is null, and there can be nothing done upon it:</p> <p>If the motion is entered on the day specified in the notice, it becomes a cause in court, and stands continued (no order necessary) from day to day, or from term to term, until disposed of.</p> <p>Motions entered and continued, should be docketed with the other causes.- and stand for trial in their turns.</p>

<p>APPEAL PROM A J. P.</p>

<p>Various con-FenwicketWand Macey ; vance of money t0 F,in sale of three retafns’Watahhé equal to about on Ptiie money advanced.</p> <p>M. in 1803, takcspossession of one of the slaves.</p> <p>Bill, by F. filed in 1822, to redeem the slaves, which he alleges were, in reality, only mortgag ed, and for a settlement.</p> <p>Answer, by the ex’rs of Macey, (now deceased) relying on the lapse of time in bar of relief.</p> <p>The contracts of salo — having been intended originally only as securities— are to be treated as mortgages.</p> <p>Bill dismissed in the circuit ct.</p> <p>Statutes of limitation are rules of decision in chancery.</p> <p>A bill to asseit a right of more than 20 years standing, in favor of one laboring under no disability, will not, in general, be sustained.— But there are exceptions : instance, — in behalf of an occupant defending his freehold.</p> <p>Mortgagor cannot maintain a bill to redeem after 20 years possession by the mortgagee, unless the latter has made some acknowl-edgement of the right within that time. Post 381. See, also the opinion of the Ch. Jus. in this case.</p> <p>The mortgagor srccana right to redeem, been assumed ^ee^andcontóo" ued’fbr 5 years</p> <p>Nor after twen_ ty ye„rs, (in Jheirthe holding adverse, not'</p> <p>A mortgagee in possession (who has not clearly manifested his intention to hold as absolute owner,) has a title and possession not adverse to, nor inconsistent with, the rights of the mortgagor. The mortgagee’s estate, in many respects, resembles a trust; and he is generally considered in chancery as a trustee :in whose favor the principle of the statute of limitations, or bhr by lapse of time, does not apply, until a satisfaction, or dereliction, of the demand secured by the mortgage, must be presumed. The right of the mortgagor of slaves to redeem, is not li-years; he may ™vherenhthere hasbeenno adverse holding of five years duration,) at" any time within 20 years after the right accrued. And the mortgagee may enforce payment of his mortgage money, by bill of foreclosure, at any time, within 20 years. [Ch. Jus. concurs : see his opinion, post.— Judge Nicholas thinks the right of redemption should be barred after five years. See Dissent,post,288.1</p> <p>View of the toshowhowthe mortgagee in and that his pos session was not ificholas^ takes a different viev. post, 287.] ’</p> <p>The mortgagee in possession of slaves, is liable ' to the mortgagor, for hire ; —an allowance for raising to be deducted from the hire. But hire -accrued 5 years before the suit, cannot be recovered ; because of the bar by lapse of time.</p> <p>Five years bars the^ claim, of one who assigned a lease, a security, for the rents which the assignee received and retained for usury.</p> <p>Dissent , of Judge JVicho-las. — ,His view of the evidence; and conclusion, that tho defendant’s testator did not hold the slaves, as mortgagee ; but took 'a title indefeasible after the expiration of. two years allowed to the plaintiff to redeem in. — > His opinion, also, that if the sale was to be treated as amort gage, yet after the mortgage debt was,in fact, discharged, the mortgagee’s con ■ timied possession ought to be considered— there being no admission on his. part to the contrary — as adverse to the right of the mortgagor ; and- that^, the possession having so rel-mained for jive years, the mort gagor’s biil for redemption was barred by force of the statute.</p> <p>Examination of wbethei-thebar from Hpse of nisedinchance-ry,is adopted in the^°legislative will, indicated by acts limiting the times suits at lawmay bo brought; or Sons °of public-policy,pvesump tion o°/righqthé probable injus-. ciahns°§-e. — and conclusion,that eery, as’ at law, tostatute604 °f</p> <p>Points of differ-' ence between es tates held strictly in trust, and those held under mortgages. Deduction there from, that parties to the latter are not, like those to the former, exempt from the effect of the statute of limitations, or bar from lapso of time.</p> <p>Ch. Jus.Rob-ERTSOJi’s Opinion.</p> <p>Equitable claims should, in general, be asserted within twenty years from the time when the right accrued. But particular considerations, as á recognition of the right, disability of tli’e claimant fyc. may constitute exceptions to thegen-eral rule.</p> <p>The possesa;OE of a mortgagor, bein™ammahle’ the statute of not affect t^e fight ?f either, kw.^Butifthe character of the possession be changed from amicable to ad-ute then begins t0 nm-</p> <p>aft®1", 20 years, the claim 0f either party will bepresum-e(] — where nothing appears to rebut the presumption — to have been extinguished, the possession to have been adverse from <he beginning, and the right of redemption, barred by lapse of time.</p> <p>The right of the moitgagov, oi-mortgagee, of a slave, will not be barred by the lapse of time, short of twenty-years, unless it is clearly shewn {infra 301) that the holding of the party in possession had become adverse as to the other party: when the character of the possesseion is thus changed, the statute begins to run, and bars the right in five years.</p> <p>Facts conduce ing to prove that the holding of the mortgagee,in this case, was not adverse</p> <p>The acts of a mortgagor, or mortgagee, in possession, to have the effect ofeonvertingthe amicable, into an adverse, independent holding, should be direct, unequivocal and overt.</p> <p>Where the debt is, in fact, wholly paid, if the mortgagee still claim a balance, he should be deemed still to hold as mortgagee.</p> <p>Other facts,indicating the character of the mortgagee’s pos session, in this case.</p>

Chancery, This cause was first argued at the Fall Term, 1831, while the Court was composed of Chief Justice Robertson, Judges Underwood and Buckner. Soon after the close of the term, and while the cause was under advisement, Judge Buckner resigned, and was succeeded by Judge Nicholas ; who, as he was not upon the bench at the time of the argument, had taken no part in the decision, when the following Opinion was delivered, by Judge Underwood-rApril 11th, 1832.

<p>The act (of 1808,) under which persons of color emigrating to this state, may be compelled to de part, is a penal law : it dispenses with the trial by jury, and is so far unconstitutional.</p> <p>S'cCgelwith emigrating, to. íe triedSsepa-ralety : a joint |áhisteCls"ever;ü^ is irregular. This court has Jurisdiction to "ceedings o/'co" courts, iu cases^ color ^charged with migrating vO this state</p>

<p>Declaration__ Count, held (p, 334) to be on a note, not on the liability accruing to the payee, in consequence of his having taken it up, after having endorsed it over to a third party</p> <p>Pleas ; demurrers, and judgment for defendant.</p> <p>Cuestión, whether'the action, as stated, is on the note, and not within the statute of limitations, or on an implied liability - barred in 5 years.</p> <p>The assignment of a note to the Bank of-Ky. is prima facie ev-dence of its having been discounted, and thereby placed on the footing of a bill of ex-ehange.</p> <p>A party to such note, ' ho has taken it up, has a right to strike out his endorsement, and pio-ceed upon it, a-gainsttiiose w ho were liable before him, for the payment.</p> <p>A bill of ex. is a simple contract, and tho liabilities upon it may be barred in 5 years.</p> <p>The act of 1812 (§8)plaeingun-sealed writings on the same footing as those that are sealed, does apply to notes that have been placed on the same footing with bills of exchange — consequently (as to the drawers,) they are not within the statute of limitations.</p> <p>But bills of exchange and endorsements on notes are not within the act, and actions on them are subject to the bar by time.</p> <p>A plea to the whole declaration, if insufficient as to any count, will not bo sustained.</p> <p>When a judgment has been recovered ag’st a party to a bill of ex. or note, no other action can be maintained against the same party on the same bill or note. — If one under a subsequent liability (as endorser,) on such bill or note, pays it, gálnstttapárfy who had been °a as-sumpsit, or by- ^ a„d use°of the judgment.</p> <p>A plea (of lini-shows’that hthe plaintiff’s ac-ceived, and that (th°! the pres-not) the only appropriate action would be barred — is in-suffic¡ent</p>

<p>A creditor having agreed to take commonwealth’s paper for his specie debt, and the debtor having failed to pay (or prove a tender,) until the paper had ris en in value, the debtor is not entitled, in equity, to any allowance for the advance in the price of the paper ; nor to be exempt from the accruing interest on the debt.</p> <p>A debtor is not ■ excused from the payment of interest,because the fund is attached in his hands, by bill in chancery, unless he brings the money into court, is restrained from using it.</p> <p>If a complainant sustains his claim for any thing that was unjustly withheld from him, costs should be ■decreed in his favor, — not against him.</p> <p>if a case be af-ver^thir^but the cost, stüi.if thl^ the plain-tiffin this court recoverscostB'</p>

<p>Statement of the tion^’ton'helUde" tided-.</p> <p>Real estate does aot pass by nun-cupative will,</p> <p>Nor do slaves, ‡.® act of 1800, directing that they asPi'uud ~ laence,the aid-“monnoedieDe-quests oí anun-is^nevertlieiess’ pntitied to be gia^s.ed0Í the</p> <p>Widow retained the whole real estate and slaves, and pro ■ vided for the children — the income and expenses to be set off against each other. For their support after she is endowed, and their part surrendered, she will be entitled to a compensation.</p>

<p>Surveys cannot be made with precise accuracy, in the usual modes: 5 pr. ct. is a customary allowaance for variations.</p> <p>Where a party was bound to convey a specified quantity of land — a tract described by .its boundaries ; v hich, upon a survey made by order of court, was found to exceed that specified quantity, a fraction more than S pr. ot : held that this small variation would not justify the vendor in with • holding the supposed surplus in. making the conveyance</p> <p>^ ^ covenanted^to convey a tract ofland, deserib-ed as contain-guantfty Cert.a'd by boundaries, he shall convey boundaries; and the surplus'11611*</p> <p>Where a ven-dee has entered on the land, and retains the possession, under an executo-ry contract, the vendor cannot resist the claim to specific execution on account of the lapse of time.</p> <p>A party who has recently re-cognised an obligation to convey, cannot resist the claim-on account of its staleness.</p>

<p>Suit at law for dower — Dee’n, demanding dow er, and memo profit?— held sufficient for the former object, not for the latter. See p. 347,</p> <p>rer^ L^ain©?" enquiry judgment,in the court below.</p> <p>Several parcels of land in possession of the same tenant, in the same town, may be. included in one suit at law for dower.</p> <p>A plea, in a suit for dower, that the husband did not die seized of the land, is immaterial, and no1 bar to the action.</p> <p>If the deft was purchaser lrom the has band, #• has added to the value of the land by improvements, those facts may be pleaded, Sf will be available to curtail the allotment.</p> <p>The dec’n, in dower, containing nothing to entitle the de-mandant to dam ages, to take a writ of enquiry was irregular ; but the verdict being for the dower only, not-for any damages, may be disregarded, and the judgment, on the default, might be sustained.</p> <p>A judgment! for dower, according to- the value of the land at the time when it was conveyed by the husband, is erra-neous-</p> <p>íf the value of laud is enhanced by improvements made by the tenant, under a bona fide purchase from the husband,the wido , will be endowed of so much only as will be equal in value to k of the land independent of thoseim-provements.-ir there is no such increase of ment wUl¿efor £ of each par-ant relies'on his improvement of the property ,he must pn.-i.ci it ; ana the i'acts must be tried by a juiy, who dottru.ni» what portion ot the p.opeity in its improved state, will be equivalent to ith-out the improve tneuts : • ior v. Inch, to be allotted by metes and bounds by the sheriff, the widon will liave judgment.</p> <p>Judgment reversed, because it may (tho’ it does not appear that it will) operate to. the injury of the appellant.</p>

<p>Reference.</p> <p>The award.</p> <p>Exceptions.</p> <p>Award set aside in the circuit ct.</p> <p>An award must be final, certain and conclusive, or it may beset aside.</p> <p>Award, that a party shall have land secured to him, or have its value in money, at his election : this is not certain and final.— The time in which to elect ought to have been limited, and the value of the land in money, ascertained.</p> <p>An award that leaves anything for future adjustment, (otherwise than by computation or measurement, cannot be sus tained.</p>

<p>Statement of the case-</p> <p>Papers not admissible were read at the hearing of a chancery cause ; hut their only effect was to prove* facts amply established by other evidence-tlie cause is not reversed for that error.</p> <p>Former suit for the same cause.</p> <p>“The pendency •of a prior suit in chancery, between the same parties, for the •eame cause, may &e pleaded in hich he will proceed with. chancery. The pendency of a suit at law cannotbeplead-ed in chancery; but the plaintiff petled^o elect</p> <p>The . pendency of a prior suit must he presented, by plea, or motion to dismiss, as a ■prelimiminary question. As an incident,among man answer on th.® merits, it will not avail.When this de-made and estab^ lished,the chan-miaTthe*1 bulg- or, if the prior ^urt^and de-festive, he may °afof thatfand permit the complainant to proceed on his new bill. Con.'jnt to a bearing, waives the de-fence of a former suit pending.</p> <p>Extraordinary, a cause, and ohar^e11^? the injunction, are not, in genera!, sufficient grounds for denying to the complainant the relief to which he shows himself entitled, in a new suit upon the same eauity. Should ari assignor become insolvent in the mean time, and the assignee thus lose by the delay, the circumstance would be entitled to consideration.</p> <p>To the cross bill of the assignee of a note,— whose judgm’t on the note is enjoined, upon an equity against the obligee, — ■ for indemnity, his immediate assignor is a necessary party.</p>

<p>Facts of th¿ cas8,</p> <p>The slaves of a ■ deft m an execution, who was a surety for the debt, ■ ere levied on, sold, and purchased by his father in law ; who, dying, devised to his daughter ,forlife, the slaves he had given her possession of ; under * this devise,the defendant received the same slaves-that had been- soldi under the exe- • ration: held that he thereby acquired a new and different title, not a restoration of what had been taken from him by the levy, so as to exonerate a co-surety (who •was bound to contribute)from his liability to reimburse the owner of the slaves, for half the amount they sold for.</p> <p>If one of several sureties is compelled to pay the deot, or any pai t of it, the co-sureties ar eim.t.ediutely liable to him, for their due proportions, lie is not bound to pursue the principal, before lie has recourse tv them.</p> <p>A verdict and judgment being for a mere trifle (17 cents) too much,is not sufficient, ground for a new trial, or reversal : de minimis non curct lea:.</p>

<p>Grounds" of the</p> <p>Clerks are to büís hito the hands of the lection, before thetst of Apnh then*the sheriff is bound to ao-on or beforethe foiiowin"Ut°^If the' sheriff receives them after the 1st of he^req'uired'u) accouut, in a reasonable tune</p> <p>Where a sher-UllsToTeollection after the ed i'/suecTfoi-fading to account, an averment that he did not pay §-c. “ as directed by law,” being merely tantamount to an a-veriueiit that he did not pay fyc. by the 1st of Oct. is no sufficient breach.</p> <p>A plea, which may be taken as true, and yet some cause of action remain, is bad.</p>

<p>V erdict and judg merit in ejectment, and appeal.</p> <p>Evidence in the court below; — decision of that courtj rejecting a deed, approved.</p> <p>As soon as an ex’on comes to the hands ofthe sheriff, the defendant’s estate is in lien for the amount ; and if he convey land which is after-wards levied on and sold under the ex’on, the sale by the sheriff, has l-elation hack to the time when the execution came to his hands, overreaches that made by the defendant, §- passes the better title.</p> <p>> The land which a defendant in an ex’on was Bound to convey, is not exempt from the lien of the exfe* cation.</p> <p>Notice of an equity does not effect the rights of a party in a trial .at law.</p> <p>Not error to re--jectadeed •> hen offered merely to prove the extent of def’ts possession, as it could not show that he was not in possession of the land sued for.</p> <p>Further evidence and instructions, in the court below.</p> <p>presumed after possession?6!™ grantsxiFincar-aments, ^i/a grant of a fee simple estate can ever be pre-aot'be if on”! possession of years.han tIlIlly 'Grants, which, according to the books, may be</p> <p>A party in pos-deny the title of him under whom he entered. But where the land is claimed under a sheriff"s deed, the tenant is not estopped from shewing, that the title of the defendant in the execution, was only equitable, and was not subject to sale under execution.</p> <p>This court will consider the instructions of the inferior court, with reference to the evidence before that ct. when they were given, and if the instructions can be sustained so far as there was evidence to which they wereapplicable, will not reverse,' tho’ they might be erroneous if taken literally.</p> <p>A defen’t in e-jeetment,whose title, or whose vendors titie, was sold uuder execution, will not be permitted to show that there was an outstanding title paramount to that of the deiendant in the ex’on, in order-to defeat the action of the pltf claim mg under the shernf s con veyance.</p>

<p>Statement of the ease'</p> <p>Decree of the circuit court.</p> <p>Appeal.</p> <p>Auy one of several against whom a decree, or judgment, is rendered, may appeal. Such appeal brings up the hole case, and the appel lant is liable for the whole, by his appeal bond. In a writ of error, all must unite, but if any are unwilling to incur the'risque of costs damages, they may have a .severance, and be exonerated from that liability. Bond for conveyance, and its construction.</p> <p>A guardian and his wards, with others, are joint owners of a tract of land ; he is authorized by an act of assembly to sell their real estate; hep' ithothers) signs a bond,the tenor of vhieh hinds those who sign it to convey ‘ ouv[their] interest’ in the land, give possession and a general warranty deed : held, that this bond (signed by the guardian without referring to his fiduciary character) imposed no obligation on him, or his wards, to convey their title.'</p> <p>If the tenor of a guardian’s bond is such as to hold him accountable for the proceeds of the real estate of his wards, which he was authorized to sell, the manner of the sale is immaterial : if it be even by verbal contract, and he receives the money, and they are willing to confirm the sale, he and his sureties will be answerable oa the bond-</p> <p>If an agsnt sign" his own name, with descrip-tio personis added, (as J. T. ,T. attorney in fact for J. J.) to a bond for a conveyance: though this is but the bond of the agent, yet, if he was •'authorized to bind theprincipaljthe latí er may he held,in equity, to a specific execution.</p> <p>An ordinary bond of a guardian renders him and his sureties liable to the wards for every obligation resulting from acts which he was legally authorized to perform; and if,when the bond was executed, he was authorized to sell therland, it secures the proceeds to them.</p> <p>Erasure of an obligor’s name.</p> <p>There should be no decree against an infant without answer by guardian ad litem.</p> <p>Defendants to a cross bill (other than comp’ts in the original bill) must be summoned, notwith standing they may have appeared in the cause, in some other attitude.</p> <p>Reversal, for want of proper parties.</p>

<p>The motion of a county creditor against a delinquent collector,» not barred by any statute of limitations, nor affected by lapse of time short of 20years.</p>

<p>The confirmation by the co. ct., ot a settlement made by commissioners with an executor, may be resisted by any party interested in the estate, with, or without, the concurrence of others ; and every facility should be afiorded him for that purpose, by the court •— whose duty it is, to sciutinize such accounts rigidly, and require ofthe ex’orsat-isfactory proof as to every item objected to, and take care that no unjust or exorbitant charges are admitted.</p> <p>If any of the parties interested fail to make their objections when the report comes regularly before the court, and until the settlement has been confirmed,they will be precluded.</p>

<p>An ,ex"on - :: ' ' on wincii horsed* "- for nearly elght'ylire h.t®1.'va£t,.!Mlu ex’on for «,¡ «ugraai su ,., i'60f«{.,,ulCSS 0i h ‘ó credit, which lie till CjjU6 WuS till-dorsed by mistake, and which is, issued accordingly : heid that, though it would be prudent for- the clerk, in such case, to wait for an order of court to correct the mistake,yet if he issues the new execution disregarding the credit, and upon a motion \o quash, it appears, that the mistake had really been made, and the defendant was no. entitled to the credit, the proceeding may be sanctioned, and the motion to quash, sliou.d be overruled. — And the new execution (to correct the misinke) having issued within : year altor the mistake was discovered, the right to have it corrected was not lost by ispse ol time.</p> <p>The time,which bars a proceeding in chancery, or motion at common law,to be relieved against the effect of fraud or mistake, is to be computed only from the time when the fraud, or mistake, was discovered.</p>

<p>wasagomlpleiT at common law’ a°bond^with0 a condition ; and ftate^to^an action on a single an^Tcquittance ™der seal.</p> <p>not a goo’d plea ^ore tlle stat“</p> <p>Tq an action of assumpsit, or total. be pleaded, or !-rven m evi-issue.</p> <p>chaneCTyhasno jurisdiction to ^judgment,'Tn such case, upon the ground of payment.</p> <p>^ef”roiet^ma<Je that gives notes the dignity of , , sealed writings,) without further description, must be presumed to be a simple contract The assignor of a note is not a necessary party to the bill of the promisor seeking to enjoin the judgment, upon the ground of payment before the assignment, and failure to*defend</p>

<p>A large party of negroes met at a house upon the defendant’s farm, to dance and frolic ; in the course of trol went’to the house, to arrest the negroes ;— while they were attempting to escape, one of the patrol fired a heavily loaded pistol into a dark room, where many of them remained, and killed a slave belonging to the plaintiff. This action was instituted against the owner of the farm, by the owner of the slave, to recover his value : — . held that, tho’ permitting the negroes thus to resort to and remain on the deft’s plantation, was unlawful, and exposed him to a penalty of $2 for each one, (2 Dig. 1151,) —it did not render him. liable for the value of the slave so destroyed — the death and damage being the direct and immediate consequence of the shooting, and not the .probable or natural consequence of the unlawful act of the defendant.</p> <p>'Whenever an injury results to a party, from the unlawful act or omission of another, the injured party is, in general, entitled to reparation, and may maintain his action against the wrong-doer ;hut the injury must be the direGt and immediate, or at least, the proximate and natural, consequence of the act or omission complained of. ■^-Ánd tho’ an injury may loe traced up to the unlawful act of one man, if it would not have happened but for the subsequent,unlawful act of another, the latter alone is liable.</p>

<p>A guardian applying to the circuit court for an order to sell the real estate of infants, is required (hy an act of 1813,) to give bond for the faithful performance of the trust, before the decree is rendered, and also, to report his proceedings, un der the decree, to the court.</p> <p>The proceeds of the sales, in such cases, are to be disposed of, for the benefit of the infants, according to the order of the court decreeing the sale, and not otherwise.</p> <p>Application may be made to the court for such order, which it is the duty of the court to make ; or, the court, having power over the whole subject,will sustain the bill of the infant for relief,§-may make an order upon the guardian, or his representatives, to pay the proceeds Sr interest, by a given day; and, upon their failure to comply, may render a joint decree, against him, or them, and his surety in the bond, for the a-.mount.</p>

<p>One justice of the peace has no authoiity to issue an execution upon the judgment of another, who remains in office and retains 'his records. — Nor is a constable bound to execute or return such a process.</p> <p>A constable failing to return an execution for 20 days after the return day, is liable for the amount then due, and ten per ct. damages-not for interest.</p>

<p>The defendant, in an action up. wi-Mngfrannot require proof of the assignment. without an oath J?e believes it is forged; and his plea, having that effect, may be rejected, for want oftheoath.</p> <p>of demurrer, If the want of a sufficient assignment is relied on, the defend-antshould,crave oyer of the writing and assignment ; and if none he shown, the plt’f fails ; if an insufficient one, it is ground</p> <p>Payment of the consideration was a condition precedent to the performance of</p> <p>^ the defendant’s covenant ; the declaration averred, that “he had been fully paid;” the plea, that, fC neither K.,0. or C. had paid they being covenantee, and the only assignees, held that the plea contained a sufficient negative of the averment, and was good.</p> <p>A declaration which avers sundry assignments of the covenant sued on, of which defendant PC had due notice/’ and charges a non performance to the assignee who held it when the condition precedent was performed, and the breach occurred, is sufficient, wjthout averring .non performance to the covenantee or plaintiff.</p>

<p>Two trials and verdicts for defendants in the court below.— Motion for another trial overruled : and that decision, the evidence being deemed sufficient to warrant the finding, approved by this court.</p> <p>The fact, that an agent had exceeded his authority in selling and conveying land, and thereby incurred a liability, does not render him incompetent, as a witness, in a suit for the land, by persons,ivho do not derive their title from his principal, as his liability would be the same whatever the ,event of the suit. If the motive for enforcing the liability would be lessened by. a verdict for theparty calling him, it might affect his credibility. In a suit (for the land), between his con stituent, and those claiming under his deed, he wouldbe incompetent.</p> <p>Instructions— that it the jury found dUvu t’s possession was adverse,and had been so held by them and those under whom they claimed, uninteruprediy, for ¿Üyoais.tho law woo for them — approved, as the deduction of law, from facts that the proof conduced to establish.</p> <p>A devisee being entitled,uy will, to a specific quantity of laud, to be allotted to her ; the allotment having been made, and possession taken, to hold in severalty: held, that — whether, the land so allotted was such as passed by the will, or, being acquired after its publication, descended to the heir — the possession so taken and held by the devisee, was adverse to the heir, co-devi-sees and all others, and protected by the statute.</p>

<p>Statementofthe conl:i'ovei's3r-</p> <p>Points to be decided.</p> <p>Allegations, denials and conflicting statements of the parties.</p> <p>Certain facts, not controverted.</p> <p>Land warrants being transfon-r ed without reservation in the assignment, and no proof that a trust was intended — none can be presumed. .</p> <p>Allegation of an answer, that the transfer of land warrants was by verbal agreement, anterior to the assignment endorsed, must, be sup-portedby proof, or the date of the assignment must be taken as the true date of the transfer.</p> <p>That a party Is informed of a saleoflandmrde by his agent is a justinfeience; and it is to he presumed, that he knew, also, how the land was acquired.</p> <p>It is the duty oí an agent to inform his .principal of his proceedings. — One reeerves land warrants,a moiety of v hieh is assigned to him, to locate them on shares, and sell the land: having done so, he should .inform the party who furnished the warrants ; and if, without giving that information, he buys the other half of the warrants for less than the value of the land, he shall, nevertheless, account for its foil value at the time he sold it.</p> <p>Query, whether a stranger would be bound to impart hisr ' knowledge before making the purchase.-</p> <p>If the vendee of land loses it, he may recover of his vendor, the nominal amount of the'consideration, altho’ it was paid in property at an exorbitant price— a rule which might work injustice ; but it has been so decided -and me a may make their contracts accord ingly.</p> <p>This rule does not apply to an agent who by-taking property in. payment, on his own ae-count, sells the land.of his principal at a high price : he shall account only for the fair cash value of the tan,d, with interest from the time of the sal$.</p> <p>Land warrants being delivered to a locator, with an assignment to him of half the right— inference that he was to have that half for his services, in locating Sf c.</p> <p>A mere depository, or one who receives the money of another, but does not use it, is not to pay interest. —Whoever uses the money received for another, is liable for interest.</p> <p>An agent is entitled to interest on advances made, in transacting the business of the prin-' cipal.</p> <p>The advanced, commissions charges of att agent making sales, should be deducted fiom the proceeds— decree for the balance.</p> <p>In trover, the jury may give damages equal to the value of the thing converted and the interest on it. Upon the same principle, the chancellor,in de creeing against an - agent who had received t“ trade” on his o -n account, for the land of his principal, may include interest in the decree, in addition to the cash value of the la'nd ats the time of the' sale.</p> <p>counts, Sr take .^loof' Tins cause is to be referred to a commissioner to state the ac-</p>

<p>By an agreement on record, ‘ the defendants waived so much of their answers as related to the statute of limitations, and the comp’ts waived their right to remove the cause to the federal court.’ The statute of limitations was a safe defence: the</p> <p>cause could not havebeen removed to the federal court. The agreement was made in 1819. In ’25, the defendants moved to set it aside, and in '27, filed affidavits,shewing that it was made, by one of their attorneys, without their knowl-eclge’ c°nsent> Upon the hear-Seconrtanmd-led the agree-missed the bill] and the decision, as to the agreement, is approved here, on the ground that it was without consideration — . a fatal concession upon a fallacious reciprocity, which must have been the result of mutual mistáke, or undue advantage taken of the ignorance of a party. Nor did the defendants Jose their right to be restored, by their long acquiescence, produced by misconception of their rights — -not by a design to entrap their opponents. — See page 402-3.</p> <p>Givcuit courts have a great discretion in regulating the intermediate steps of a suit -which, unless for obvious abuse, this court will not curtail or control.</p> <p>Where there has been an unusu-at delay in presenting a preparatory motion, and it appears the mover has lain by, to catch an undue advantage, he should not be heard.</p> <p>Agreements as-to tire preparation of causes, should be fairly observed, and should not he rescinded,by the court, where the opposing party will beprejudic-ed by having made the agreement unless it is adhered to.</p> <p>Great latitude ia. allowed, both in chancery and at law, in making amendments, §■ correcting errors ; and v; hile the matter remains under the control of the court, it is not to be tolerated that a party shall lose his property, by the. cunning and adroitness of parties or lawyers, oh the one hand, or their mistakes or inad-vertencies, on the other:</p> <p>'Where a deft has agreed to Waive a matter of defence, and the - court sets aside and annuls the agreement, there should be no final decree 'the same'term: time should be allowed ibi preparation upon ' the issue, hich had been waived and is reinstated.</p>

<p>The right of braced1*by The chancery, this, like ‘ every new right of action in equity,5 ,be acte<i within twenty stances^uch11" v. ouid bring the case within the exceptions of the statute,— may constitute exooptions to this rule; as where the de-mandant was absent from the state vhen the' right accrued, she may assert it at any time within ten years after her return.</p>

<p>Statement ofthe admittedaídex-eluded, and in-court below. ^</p> <p>That the def’t in a writ of right is not tenant of the freehold, is matter of abate- • ment only.</p> <p>Defendant in a writ of right may shew that demandant has been divested of his title, and so has no right to recover.</p> <p>But the deman-dant may show, that the sale and deed purporting to divest him of title, was collusive,. fraudulent and void.</p> <p>A motion to set aside a sale, overruled, will not preclude p. party from show ing that the sale was fraudulent and void, upon other grounds, not contained in the notice, nor attempted to be proved on the trial of the motion. tfee the supplemental opinion, p. 412.</p> <p>Points relied on for a rehearing.</p> <p>A writ of right abates in the circuit court by the death of a party, and there can be no revi-vor. ¡ 'ut an appeal, or writ of error, prosecuted to reverse a judgment, on a writ ofright,and abated by the death of a party, may be revived and prosecuted by his legal representative, or by a co-party.</p> <p>The right to-have an erroneous judgmentre-vised if corrected, never dies with the party, but survives to his representative, not-withstandingthe cause of action upon which the judgment was rendered,, would •not have survived.</p> <p>A judgment o-veriuling a motion to quash a sale for irregularity, will not preclude a party from impeaching the sale and deed lor fraud, in another trial, where the question arises incidentally. Ante p. ill.</p>

<p>Bill, and its olv iRCl-</p> <p>a covenant ‘¡o give said S. IS4 acres of land where he now lives with the improvements as it now is,’ — interpreted to entitle the cove-nantee to the specified quantity, without the surplus (ninety acres) afterwards ascertained to be in the tract.</p> <p>Answer,cross</p> <p>'Decree.</p> <p>Whenever a defends resists the rightful claim of the comp’t, he must pay costs.</p> <p>A defendant rc-sisting the suit of the heir, for the suiplus of tímt the°deferjd-ant held under the ancestor’s agreement for the conveyance of a spec-'fic quantity, “ with his father’s security in a yootf warranty deed,”— makes his answei . cross bill for a specific execution, or for a rescission. The decree should require the heir to make a deed, with approved security, for the title, or, on.his failure to do so, rescind the contract.</p> <p>A cross bill against the complainant only, comes up' by app. or writ of error to a decree on the original bill-.</p>

<p>Suit against a sheriff and his sureties,for fl.il— ing to pay over thecom’th’spa-per,collected by execution.</p> <p>The defence.'</p> <p>In a declaration against a sheriff forfailing to pay ' over commonwealth’s paper, anavermentthat 'he failed to pay “ the amount,” 'implies a charge of failing to pay in that paper, and is -sufficient. And'where it is averred, that he collected it “by virtue” of the ex’on,the legal deduction is, that he received it while the ex’on was in his hands, 8/-in force.</p> <p>A sheriff having colleetecfmoney upon an ex’on, is bound to pay it over to the creditor, without a demand, if he 'resides in the county.</p> <p>The attorney who recovered thejpdg’t, may receive the money , 8,- the sheriff will be justified in paying it to-him.</p> <p>If the creditor reside not in the county, the sheriff (though he may pay it to the attorney) is not bound to pay. it to any one who does not produce an authority ill wri tins' from the creditor, for receiving it.</p> <p>The act,of’27, authorizing judg ments for the nomina! amount in bank notes, against officers •tvho have collected such money, and failed to pay it ■ over, does not apply •to their sureties; the recovery in asuit where they are included,can be only for the value of the paper when it ought to have been paid, and interest on it.</p> <p>Where the recovery is in specie, tor a debt due in paper, there must be evidence of the value of the paper, or the verdict cannot be sustained.</p>

<p>To a motion t<r 3forCir-regularity ap-returof all persons interested are parties. And tlle P]!tf m tlle any party) may Pr°secute. his writ of error to the judg’t on</p> <p>, A sheriff’s sale being set aside, the sale bond becomes invalid, and must, on motion, be quashed.-The sale and sale bond quashed, the creditor is remitted to his judgment, unaffected by the levy.</p>

<p>Sale of town lots, with improvements, by executory contract; bill to enjoin an unpaid part of the purchase money, and rescind the contract.</p> <p>Deeroe of Ilk; circuit court.</p> <p>Appeal.</p> <p>Neither a stranger, nor a vendor’s administrator can take the place of a vendor, and require a vendee to pay purchase money, if take the title, which the vendor is unableto make. The vendor, or his legal representatives, as such, can alone make such title as the vendee will be compelled to accept.</p> <p>When a vendee has made reasonable efforts to obtain the title, without success, has abandoned the possession, and filed his bill for rescission, it is too late to compel him to take the title,though ever so good.</p> <p>‘onofthe</p> <p>The chancellor, contiact^houlíi place the parties fore the salebor as nearly so as sestdmnoliere-;pu^aje ed — So long as bide by tííe con” tract, the ven- • in. Pos" chargeable with tlTcTto^nterest on the money te^dfsatfirm-he is rents'5,'5 untiiThe sun'?nders P°ssession, and is entitled to in-torest nnjil his money is refunded — if his there should be ylstinentofVent and interest,</p> <p>A vendee is not required to go out of the state, to notify a non-residentvendor, oes the con-abandon tirapos session without giving nonce.</p> <p>An estate to he restored to the vendor, upon a rescission of a contract, on account of his failure to comply, and make the title — lie must take in the condition in which it may be at the time of the restoration-without compensation for the casual destruction, decay or dilapidation of buildings and other improvements, not caused by any culpable act or omission of the vendee. — If he has sold and removed, or wan-tonlydestroyed, or injured, the improvements, the vendor will be entitled to indemnity for the loss.</p>

<p>APPEAL FROM A J. P,.</p>

<p>An execution'in the hands of an-officer gives -a lien upon- the chattels of the defendant' •> ¡thin the county— which is not lost by their temporary removal.— But those to ■which, not being in-the county, the lien had never attached, until the def't sold them bona fide, do not become liable by being brought into the county by the purchaser.</p> <p>To sweartbeju-ry to try t-,sue, whs-,. is no pies, ui, ■. error.</p>

<p>The chancellor cannot allow interest on ajudg-mentwhich does not bear interest at law — and must enjoin it, when the payments are equal to the damages and costs.</p> <p>A charge for a commission, or discount, on a bill of exchange received in payment,. must be proved —courts will not take notice of a mercantile usage, to. allow it.</p>

<p>APPEA1 EROJV1 A J. P.</p>

<p>History of the case — and decision (Judge Un-darwooddissen-ting,) that—</p> <p>Where a party had obtained a decree (though a void one) for, and a conveyance in fee absolute,of the inheritance of his deceased wife, under the erroneous idea that he was heir of her son, ■ /ho died shortly after his mother’s death, and had sold the land,for a fair consideration, to one who had retained an undisturbed pos session for 20 years — such a-iienee is protected in his title and possession, by lapse of time. The right of the true heirs to have the decree corrected accrued upon its rendition, was not suspended by the fact that the husband, as tenant by the courtesy, Sf his Vendee, had a right to hold the land during his life; 8f was lost by a failure to assert in within twenty years.</p>

<p>Statement.ofthe case'</p> <p>Matters which havebeen tried at law, cannot chancerT”'1</p> <p>There can be no decree, but hat is based on allegations of the bill.</p> <p>Where proper-t.y is taken and sold under execution, and a stranger claims and recovers it, or its value, the party who loses it, has a remedy in chancery against the defendant in the ex’on, whose debt was satisfied by the sale. The dismissal of a bill framed for one object, e. g. to compel one of the defendants to surrender property belonging to the other — will not bar another suit, on the same equity, framed for a different object, e. g. to subject the' defendant’sc/ioses in action</p> <p>Affirmance as to one defendant; reversal as to another — plaintiffs pay costs to the former, and recover costs of the latter.</p>

<p>Grounds of the actlon-</p> <p>Pl'tff’s proof,</p> <p>Port’s proof,</p> <p>Instructions— and gI7</p> <p>Verdict ty judgment»</p> <p>A son muy recover of his father's ex ors for labor done by hi iiself and his sldves in his minority, upon proof, from winch a promise of payment ruay be inferred, without proving an jxpress promise. ilut the facts, that the son married in his minority brought hts wife and two slaves obtainedby her, to his anther's, and continued in the man \ge-mentofthefarrn until he came of age -are not sufficient to justify a % erdict for the son.</p> <p>As to a parol ward, oñe arbi-tíTt°h.e behoved thatí’iedefence te) a portion of the piamtirr sde manct, was sus-tamed ; the oth-e/ testified that it was his impression that no award was made in relation to that portion the evidence of the former, being consistent v'iih the submission, and more positive, is conclusive : the a . ard is held to be a bar to this, as well as to the other portion of the demand, and a verdict therefor, set aside.</p> <p>Several claims being referred, by a general submission, an award for .plt’f for one or more, silent as to the others, v ill be taken to be against him, as to the latter.</p>

<p>Statementofthe facts.</p> <p>A statute requiring notice to bte given and the service of it to lie proved in a particular mode, must be strictly pursued. A sheriff’s return of “ exe-ecuted,” may notbesubstitut-ed, •.vhere the act says, there shall be an affidavit produced, that notice in writing has ¡been given.</p> <p>Where an act requires a notice to be given and proved in a prescribed mode a previous general law, providing that any notice may bo served by a sheriff, does not ap-piy-'</p> <p>A partition among parceners made under an order of a county court, without legal notice to all interested, is unauthorized.</p> <p>Barceners procuring partition of their land by order of a county court, pay their respective proportions .of the fees — and no judgment for costs can he given for, or against, any of them, if there is »o contest.</p>

<p>The state tribunals have no jurisdiction of an action for a penalty, under the act of Congress relating to the census— that act does not attempt to confer such jurisdiction.</p> <p>The courts of the state cannot take cognizance of a penal case arising under an act of Congress —Query, whether the legislation of both, gov ernments could give such jurisdiction — that of either one cannot. '</p> <p>The appellate ju risdietion ofthis court,is restricted to cases in which the inferior courts have cognisance. A w. e. on a case of which no inferior court had jurisdiction, must be quashed — and no judg ment for costs can be given.</p>

<p>An agreement, under seal, ‘to waive all exceptions to a decree as it now stands,’ is tantamount to a release of errors</p>

<p>Case depending upon the validity of Fishback and Morgan’s entry of 40,000 acres, on Ringtone'</p> <p>This court having, by two decisions, settled the identity of an object called for in an entry,. will, in subsequent cases, upon the same ev-dence, adhere to the 1 former decisions — tho’ the opposing evidence may seem to the present judges to preponderate.</p>

<p>No action at law lies against a foreign administrator, who has not qualified in this state. The only remedy, if any, is by bill in chancery, upon appropriate facts.</p>

<p>Prosecutions for obstructing roads are limited to six months</p> <p>The bar to a penal prosecution need not be pleaded it is atrial; or to quash the presentment on its face.</p>

<p>Statement ofthc case each party claiming the office of Com-monweaith’s.at-torncy.</p> <p>This court has jurisdiction to revise the judgment of the circuit court, upon, the motion of a party, asserting his appointment to the office of attorney for the com’th,;}- moving for leave to take the oaths of office, and enter upon the duties. '</p> <p>Judge Nicholas thinks the question settled otherwise. See his Dissent, p. 457.</p> <p>The clause of the act giving the court of ap■peals jurisdiction “ in cases in which the inferior cts. have cognizance” ap plies only to jzi-dicial proceedings, not to dis-cretionaryor executive acts.</p> <p>The executive or discretionary acts of inferior courts — such as an appointment of a clerk, or the removal of a guardian — are not subject to revision by the appellate court.</p> <p>Where one who claims an office, moves a court in which the services are required, to be qualified and recog-nised as the proper officer, another person who claims the same office,may be admitted as a party to the motion ; and either may have a writ of error to correct the judgment, to which the other may be made a defendant.</p> <p>One claiming an office may move the court where the services of the officer are re quired, for leavo to take the oaths and proceed in the duties, maybe heard ex par te, Sf may have a writ of error, ex parte, to reverse the decision upon his motion.</p> <p>A com’Hli’s attorney, duly appointed, has a right to hold his oflice during good behaviour and the continuance of his office.</p> <p>An office may bo created by statute, the term of which is Axed by the constitution ; and if the term be during good behaviour, the officer may hold it as long as the statute remains in force, and no longer— whether it be re pealed, expires by its own limitation,or is con tinued in force by another act.</p> <p>Dissent — by j'ullSe Nicho-ceives that the XéTthis court can take juris-case^baf been settled, in the two^former de-c'sions, Sr that late to”einves-*'Sate tlle mat-</p>

<p>A decree is void where there has been no service of process. — Where there was service on some of the- def’ts, not on others,the de cree is not void as to the' former, but inoperative as to the latter.</p> <p>The court having no jurisdiction over the subí ect matter, its decree is a nu'Hty — consent could not give the jurisdiction.</p> <p>Where the ct. has jurisdiction of the subject matter, but not of the person — as where no defendant is found in the co. but the process is served elsewhere — the decree is not void; for the party might appear Sr submit to the jurisdiction. — If he fails to do so, the decree is merely erroneous, andbindin’g until regularly r'eversed.</p> <p>Where there is a decree against divers defts, for a conveyance, valid as to some, inoperative as to others-the commissioner sdeed for the whole land passes the title of those, §• those only, who are bound by the decree.</p>

<p>Suit, by assig nee -upon ‘this indenture,’ re-iot^fndTtipull1 ting to make ti-heiTtaTe ex-ecutori/ mere-veyance-1 °th¡ dee’n so treat-ang it, good,</p> <p>Rea — insuffi-One*’bound to conveylandmay by anagreemerit Rescind, or by of the laniTto such proceeding has no-fice of die assignment of his fect'uie^issigí ee’s rights, The plf qf ? by an assignee, fectspleadldoc6 curred before no signm!,*6 ^</p> <p>A A covenantor, with notice of . UI1 should make tbe assignee a party to his bill to subject the land to the payment chase money : otherwise, the sale may vest the title in a bona fide purchaser, covenantor liable to the assignee. assignment, of the pur-leaving the</p>

<p>A free man of color — tho’ he oannot be a witness in any ease, except where none but negroes, mulat-■ioes, or indians tíre partios,may, by his o>n oath, require a white man. to give security to keep the peace.</p> <p>The oath or affii." davit of a freq man of color, •party, may be received in any case where the oath or affidavit of a party is required or admissible.</p> <p>When a party appears according to his re-cognisance and is discharged, it is thenceforth inoperative. No appeal or w. e. lies on the order discharging him. — The remedy, where one hound to lteep the peace is improperly discharged,is by a new proceeding before a justice.</p>

<p>A traversor who appeared on the trial in the country, can not qnash the inquisition for, or take any advantage of. the want of proper service of the warrant.</p>

<p>Picas in abate* ruent are to be construed strictly, and are not amendable. That bond for cost, with surety wlio is a resident, had not been given, is insufficient ; as he may have been so when he bond w a given.</p>

<p>Statement ofthe oaso. ■ The recovery of damages for the in-each of a covenant to con-rey, extinguishes the obliga tion, and, in effect, rescinds the contract: the mere pen-dency of the suit has not that effect — hence, the nttif'l i of the partieswhen one seeks a specific execution in chancery, is essentially different before, and after, a judg ment at law. When a vendor comes into ch-m eery to compel his vendee to, take the title, the canse of the breach and delay will be look ed into • if it has been design ed, with a view to profit hy the noncompliance, especially if the vendee has sustained an iniu-rv hv it. the vendor wh’ not be assisted'hut, if it has been fortuitous, or from mere neglect. and the vendee net injured, the delay will not of bself pveehrde the re-1* lief sought.</p> <p>Defectin Wood sort’s title-possession for 47 years.</p> <p>After 20 years possession, an executory contract appearing, ,a conveyance rnay.be presumed ; and after a much longer time (37 years) the presumption may be acted upon with confidence, ff will not be rebutted by the continued nonresidence of the vendor.</p> <p>where a vendor makes a deed, it^refused, and he dies; jn a‘ su¡t ‘ Ms heirs, the vendee is eom-pelted to accept t,le tlt,e; d*® same deed ill do — but he may h-’ve th<> deed of a commissioner if he prefers it.</p>

<p>Statementoftho and deois-euit court,</p> <p>Errors assigned,</p> <p>Note of one partner, and a-greeuient v ith him, relied on as a set off against the firm, and grounds on tvhioh it is resisted.</p> <p>The testimony of one witness prevails against the denial of an answer, sworn to only by a defendant who has no personal knowledge of •the facts..</p> <p>Other facts, as to the set off.</p> <p>The authority of each pmtuer to settle unclosed affairs of the firm, continues after the dissolution ; and a payment made to one.; an agreement made 'by one to set off a debt due the firm against his private debt, or other arrangement with one, for a settlement, binds all. — Uut if any partner, upon the disso . lution, agrees to surrender this authority, settlements by him with tKose having notice of his- agreement, will not bind the others.</p> <p>The notice may be inferred front circumstanced.</p> <p>record in chanence not being domed, or assignment aileg-ed, win not preS'”.'1% o'6 Failure to exhibit' a' note in a</p> <p>The act declaring, that if an injunction is dis solved,in whole or in part, the co mp’t shall pay-damages, besides costs, refers to the costs (of the motion §-c.l for ■ hicli comp’t is liable at the time of the dissolution. If he obtains even a partial relief on the final hearing, he recovers his costs, and is liable for co“t.s upon a total failure, as in other cases.</p>

<p>No cause should be instant)} dismissed, on motion, for want of security lor costs. A rule is to be made for the plaintiff to give security within a reasonable time, i.c-cording to the ■ circumstnncesof the case, an< if he fails to comply, the o. u.-e is Ilion to he dis. issed absolutely.</p>

<p>A vendor who sells, i.nd covenants tocorivey, v. ithout warranty, all his ri%ht, title and interestin land, is hound to exhibit his title, and show that he has son.e title (.tho’ not the best) or some right, which he can convey— else the contract may be rescinded.</p> <p>A covenantor, stipulating to convey so many acres ofland out of a large tract, provided there is so much unsold and free of such and such claims, may select it where he will in the tract — hut must lay it off, and show that it is unsold, and free of the specified interference.</p>

<p>Titles of the resl)ective</p> <p>The possession of't tenant is available to his landlord, for law. Seep. 483.</p> <p>Tj,e possession °fa junior pa-tentee who enters upon a part of the land, unless his entry is in the name of the whole; is restricted to his actual occupancy ; and the right of entry of the elder patentee, and those claiming under him, upon the residue, is not tolled. See p. 4S3.</p> <p>Instructions con sidered irrelevant, and the question not decided here. See J>. 501.</p> <p>Instructions con sidered irrelevant, and the question not decided here. Se* p, 501.</p> <p>A- tenant in common cannot recover upon a joint demise.— See p. 501.</p> <p>Page 481.</p> <p>Page 481-</p> <p>The provisions of ‘an act to revive and amend tho champerty and maintenance law’ Src. of Tan. 7,1824, which declare that the lands o'f proprietors and claimants shall be forfeited to the commonwealth, unless certain improvements are made thereon, as required by the act, are unconstitutional void. — See the reasoning and concurrent con-elusion of.Tudge Nicholas, post.</p> <p>A tenant in common cannot recover upon a joint demise. Instruotion 3, p. -IfiS.</p> <p>A cause maybe reversed for erroneous instructions, notwithstanding the ver diet may appear to be right upon the proof.</p> <p>Jud^e Nicholas’ Opinion.</p>

<p>If an administrator makes dis tribntion, and debts appear, he is Hable for a devastavit: he must look to the distributees for indemnity, and if be took no bond of them, must abide the consequences.</p> <p>One who is both adm’r and guardian, win be deemed to ho id the assets in the former Capacity, where no change in ihe manner ofhold-ine appeal's ; 8r his- sureties, as as 7%V, will alonebe chargeable. 1</p> <p>The county ef. may, by its order , releas* the sureties of an adm’ror guardian.</p> <p>The bond of an adm’r should be payable to the commonwealth ífthVptstioe”of thec°. court, by the obligees!</p>

<p>Before a debt- or’s choses 'in action can be reached by bill in chancery, there mustbe an ex’on returned ‘no property,’ by the proper officer; sack return on a fi.fa. sent to a county in which the de-fendantdoesnot reside is insuffi''cient.</p> <p>Chancery has jurisdiction of the demand that accrues to a surety upon his paying the principal’s debt’ but cannot Subject his choses in action, without the./?, fa. and return required by the statute. Whether a return of no property on a fi. fa. for one debt, will authorize a decree subjecting the defendant's dioses in action to the payment of another debt of the same creditor— not determined.</p>

<p>Where it appears that a ten-aut in possession entered un der an executo ry contract, a jury may infer a legal conveyance from facts wllich do do “ot amount to a legal presumption of a deed : but not from the single fact of 19 of a deed; . ^ years possession.- — -—A party m possession may rely upon Ins right as adverse until it is shewn by proof, that he is estopped, by having entered under an executory contract, as a quasi tenant, or the like.</p>

<p>0n the tvi¡ü f an issue upon ofcinsidLeti’on —the question tedloThílary ?or t, eir de<;is-ion upon the inferences from the facts ; and instructions which assume that the covenant^ni.)’1'^-*!^.!* founded on a supposed liability, in the absence of proof that such was the sojeoonsideiution are erroneous. *</p>

<p>The deed of a nonresident ac-Icr'OwJedged before the may- or of a city in n liieh he resides, (tho* his residence be but temporary, and he a citizen of another place,) may be admitted to record in the county in this state where the land lies. Pdor' to the act of 1810, a deed could not be admitted to record in the codnty where the land lay, upon a certificate of acknowledgment, before the clerk - ofanothercounty. or the clerk of the court of • appeals.</p>

<p>A scire facias sanee for theap-pearance of a ímisíshew°tliat there cognisance was transmitted to the court. ^eeites^that the def’t was re-pe^randansweí' a charge of felo-cogMsanc^spe-cifies no charge, tlle variance is pata]j .anacan„ no,íbe cmed by relerence to a record comp et-ed heforethere-cognisance wag taken.-A recognisance that does not show that the party for whose appearance it is talc- - in, is charged with felony, is defectiva and void.</p>

<p>A challenge, within the mean ing of the stat. irte against du-elling, is a requisition, demand, or request, to fight with deadly wea pons : expressing a readiness-to accept a challenge, does not amount to challenging!</p> <p>Words insinuating a desire to fight with deadly weapons —as they tend to provoke such combat, may amount to a misdemeanor at the common law.</p>

<p>Where, by the pleadings, the def’t holds the affirmative, not relying on any negative plea as a bar to the action — if he offer any proof whatever in support of the defence pleaded, the right to open Sr conclude the argument, appertains to him :— But if no such proof is offered, the right belongs to the plaintiff.</p> <p>Dissent,</p>

<p>The finding on 5 NI11'™1' of forcible entry being travers-should6 return thepaperstothe io°díiys —hut his fi.il-^0et cause for a dismissal; nor dice either'party-</p> <p>A recital in a traverse bond, that an obligor t^0 inquisition! estops him from íyij'nd íavhig been duly executed and the papers returned to the circuit ot. the proceedings may be presumed (nothing appearing to the contrary) to have been regular, and if no traverse is found with the papers, one may be filed nunc pro tunc.</p>

<p>A declaration in slander charging words as having been spo ken in the third person,, is sufficiently sustained by proof of words spoken in. the second person.</p> <p>The affidavit of axiariy (uncoil tradicted) that a juror as related to his adversary, is sufficient evidence of that fact, upon a motion for a new trial.</p> <p>The allegations of an affidavit, upon a motion for a nev. trial, may be met by counter affidavits, — to take • which time may be allowed, if required.</p> <p>Affinity is cause of principal chai lenge to a juror • — the uncle, by marriage, of a party is not com petent.</p>

<p>Statementofthe case.. — A party buys an estate, pays for it, and has the title made to his children ; his creditors file a bill to subject it to the payment of his debt : — the debt having been contracted before the purchase ; the answers of father and children denying that it was an advancement to them, and other circumstances indicating an intent to defraud creditors— held that the estate was liable for the debt — .fudge Nicholas dissenting.</p> <p>An insolvent father having purchased land, and taken the title •to his children —his ans . erin a suit to subject it to his debt, or his declarations after the conveyance, may not be evidence against them:— liis indebtedness at the time, and payment with his money, are evidence against them. That they (infants, ) had money to make such purchase, , will not be presumed,in the absence of proof.</p> <p>If a father holds the title to real estate, and being much, in-debit'd,conveys it to his child, the conveyance will he ( Of, the statute) fraudulent and void as to act his créditos. It he is not indebted at the time of theconveyance, it may bo good against subsequent creditors.</p> <p>The purchase, by a debtor, with his, money, of property which is conveyed to a third party, is not v. ithin the statute against fraudulent conveyances. See the concurrent opinion of Judge Nicholas, post</p> <p>Conveyances fraud of prior creditors arevoid at common law. But the common la¡. does not apply this rule to subsequent creditors</p> <p>A parent may .provide for the support and education of his children, notwithstanding his indebtedness. — See the concurrent view, and further consideration of thesub ject, by Judge U .-¿post.</p> <p>The dioses in action - of a debtor” cannot, .but by force of the statute, be made liable to his debts by bill in chancery; nor can such things as are not bound by the judg’t or ex’on, be pursued into the hands of those to whom the debtor may have transferred them —Money is not a chose in action, nor «'¡than the lien of an ex’on ; yet it may be levied on while in the possession of the debtor. Judge N. concurs. See also a different view by Judge U. post.</p> <p>If a party purchase property, pay for it , ith his money, and cause the conveyance to be .made to a stranger, there will be a resulting trust to the payer, and chancery will decree the property sub ject. to his debts. If the conveyance be made to his .children as an advancement., it will be good, .and the property willnot be liable to the father’s debts.-Bnt if it appears that the conveyance was not in tended as a bo-na tide advance mént, but to defeat, creditors, it wi'l be deemed fraudulent, and a sale of the property, to pay the father’s debt, may be decreed. [Judge Underwood goes even further. Judge N. thinks the property thus conveyed to chit dren, cannot be reached. — See their respective opinions,post-l</p> <p>That the intention of a father who procures an estate, purchased and paid for b,y him, to be conveyed to his children, was fraudulent, cannot be inferred from the mere fact of his indebtedness at the time ; but slight additional circumstances will justify that inference. See page 532.</p> <p>Parties in this court may waive objections to the preparation of a chancery cause, in the court below, and have a decision here on the merits.— Andparties who being infants,an swered by guardian ad litem, may thus sanction such answer.— Against its denial, the chancellor will notpresumefhat an estate conveyed to them by their father, was intended as an advancement [Judge N. contra, post.]</p> <p>The chancellor, in decreeing the sale of real estate, should follow the law,and (unless there is' a special cause for selling the whole) sell so much only as will satisfy the decree. — [See the opinions of Judge TJnder-woodand Judge Nicholas, post -last paragraph ofeach.]</p> <p>Opinion of Judge Underwood: who conceives that, if a father, who is insolvent, buys an estate, jKys for it, and has the title made to his children, it is a fraud upon his creditors —and the estate a trust in the hands of the children, \thich should be held liable for the father’s piior debt</p> <p>Where a debtor has effects subject to execution, and so disposes of them, that they cannot be reached by his creditors, it is fraudulent, not only in him, but in the party who accepts or receives the effects.</p> <p>Money may be. taken under execution. See p. 634.</p> <p>A man may defray the current, necessary se3 of his children, though it render him unable, or less able, to pay his 534, also Judge Nicholas’ opinion, post.] JBut he has no right to set apart a large fund, or purchase estates, the income to be applied to that purpose, and thus disable himself from paying his debts — sttch funds and estates should be held liable to his debts. debts. [See p.</p> <p>Property purchased and paid for by a parent, and conveyed to hischiidren,.can not be reached by a subsequent creditor of the parent, by the rules of the common law. Nor are such purchases within the statutes against frau dulent conveyances.</p> <p>But where one who is in debt purchases property and has the conveyance made to another, such grantee is but a trustee for the party who paid the consideration, the property is liable for his debts,upon com mon law principles. [See the concurrent view-oftheC. J. page 536, and also of Judge N. post.] The case of a fatherintending, in that .' ay, to advance his chil dren should not constitute an exception to this general rule.— [Ch. Jus. and Judge N. c<m-tra, p. 536, and post.]</p> <p>Opinion- and Dissent of</p> <p>— ^ ^"stranger without consi-purchase in his «ame, creates a inSfavw of*the grantor, or payer of the chase money — aliter where the conveyance is to, or the purchase in the names of, infant children. The implication from such purchase, is, that it was made for their advancement. .This implication has never been destroyed in favor of a purchaser from the father. Neither should it be in favor of creditors, on the ground that the purchase was so made to de-fraudjtnem. It is too well settled, to be now called in question, that the donee of money cannot be pursued by the cieditors of the donor. A purchase in the names of infant child-eñ, is but a donation of the purchase money, and neither prior or subsequent creditors can subject property so purchased. The question has not been effected by the statutes subjecting chnses inaction, and equitable interests, after a return of " no property” to a fi. fa.</p> <p>liffeotofthe statutes subjecting a debtor’s dio-ses in action and equitable interests, considered.</p> <p>infants should “otbe prejudie-ed by any alle-gationscontam-ed m the5 a.n* guardian ad n~ an^effe^begi-vento such alie-agreement have^a decision h"re. SeeTdif-view tyr 541. *’ ws’ E</p> <p>Real estate to be sold to satisfy a decree, or under execution should be offered entire,whenever, in consequence of the buildings upon it, or from any other cause, a division would produce a sacrifice. — The other two Judges of a different opinion. Pages 542, 550.</p>

<p>Statement of the Cilse'</p> <p>Occisión of tine qüestionTo* ’ bo determined hero-</p> <p>Sales of land in the adverse possession of asfran ger to the contract, are void, and no right of action arises to ei ther party, from sucha contract.' Act of ’24, §1.</p> <p>Contracts for carrying on land suits -for part of the land are void; the title made the subject of such contract is forfeited — and neither party.can have any action upon’it. 76. §2</p> <p>A party in possession of land, at the time of any contract in relation thereto, in violation of the first or second section, (supra) may plead such contract in bar of any suit founded thereon ,- — and may, by bill of discovery, compel a disclosure of the true dato-and other circumstances of the contract-. Sec. 3.</p> <p>Every conveyance, or contract for the sale of land in the adverse possession of a stranger to the contract, is void, (by the .cham-perty act of’24) and no suit can be maintained upon a title acquired under such circumstan ces. But the title of the vendor is not forfeited by such vain attempt to transfer it ; nor is his right of action,upon his preexisting title, thereby destroyed. [See the Dissent of Judge Nicholas, page 569.]</p> <p>Dissent, by 'J^£e</p>

<p>The consent of ail executor in Va. that a slave should vest in the legatee,may be. inferred from his removal,and bringing the slave with him, to this state. Chattels which a decedent had only a life. state in,do not .,o to the adm’r.</p> <p>Tenant for life, or one who, by mistake, is permitted to hold as such, does not hold adverse ly to the remainder man, or supposed remainder man, and the statute of limitations does not run against him.</p> <p>A devisee of a slave,having acquiesced in the claim and possession ofa supposed tenant for life, who survived him — the limitation did not commence running in bar of the right derived from the devisee,until after tlie death of the tenant for life ; nor then, till administration was granted of the estate of the devisee.</p>

<p>A party holding a title bond for land, which he sells, assigning over the bond to his vendee, retains a lien on the land for the consideration— which,as against any subsequent assignee with notice, he may enforce, in chan eery — without first obtaining a judgment at law for the debt.</p> <p>If a former decree is relied upon as a bar, it must be duly jpleadedjprayer, in an answer,' that ‘ the pleadings Sf proofs, in a former suit, may be made a part of this cause,’ does not present the decree — and altho’ it be copied in the transcript, it will not be regarded in this court— THe answer being that of an infant does not constitute an ex ception to this rule.</p> <p>It is the duty of a circuit court to see that the rights of infants are protected, and every fair defence made in their behalf. —In this court, the rules applicable to other cases must be applied to theirs</p>

<p>A deed, or bill ■ofsale, to a purchaser -penden-te lite, is not void, but voidable.</p> <p>One who buys a slave, while a suit is pending to subject it to the vendor’s debts, takes the, title dependent upon the event of the suit. If the suit fails,the title stands good If it succeeds, the purchaser’s title fails : but he may claim the surplus for which the slave sells above the amount of the decree.</p> <p>The purchaser of a chattel, pendente lite, might recover it from his vendor if withheld by him. — But not from an officer who holds possession under an order of court.-</p> <p>An officer sued, in detinue, for a chattel that he has taken and holds under an order of court, must show, by his plea, how he holds it; evidence of his right to hold, is not admissible under a plea of non detinet</p>

<p>Statementofthe <:aaC‘</p> <p>If a debtor gets his debtor to give a bond to a third party, itt lieu of one payable to him, or otherwise transfers his claims, to defraud his creditors, they may nevertheless he reached by an attachment bill.</p> <p>The denial of an answer must prevail against a single deposition without cor roborating circumstances.</p> <p>A mere gift or gratuity cannot be enforced in equity. Rat a-gainsC a judgment on a bond, (which imports a suRcient consideration,) unless the want,or failure, of consideration, total or partial, is clearly shown, the chancellor will not relieve on that ground; it cannot be inferred from the fact,, that the payee “ induced” the promi-sor to give his note, .as .a compensation above what had been agreed upon, for services rendered.</p> <p>Contracts between attorneys and their clients are viewed with suspicion ; and conveyances betwixt them have been set aside, upon the idea that the lawyers might, and probably did, take advantage of their situation to procure them. Contracts made alter the lawyer s services are completed, are not liable to this objection. Aorshould the chancellor interfere, in any case, unless it appears that the la w yer has, in someway, taken an undue advantage of his station, or influence, in making the bargain.</p>

<p>A judgment on anote, with credits endorsed, which are not allowed in the verdict, is erroneous. — But a bill in chancery-will not lie for restitution after the judgm’t has been paid. The remedy, if any, is</p> <p>If one pays a claim against which he has a set-off, chancery has no jurisdiction of the case. — Nor has it'jurisdiction oi so small a sum as $ 12 §0.</p>

<p>Chancery.</p> <p>Cross Appeals</p>

This prosecution was commenced in the Court of Appeals — it be- The Attorney General, on the 27 th of April, 1882, moved, in his official capacity, for leave to file the information. The court enquired whether the charges were accompanied by any affidavit shewing that there was probable cause for the prosecution.

<p>The plaintiff in a judg’t in det-inue may have an ex’on issued for the specific slave or thing recovered: and a 'tender of the alternate value vyill not discharge thejudgment, unless the plaintiff elects to take it, or the court is satisfied, that, without the defendant’s fault, it Is beyond his pow er -the officer must take the posse coniita-tus, if necessa-rjVtnd seize the slave or thing recovered ; and for that purpose may make a forcible entry in to the defendant’s dwelling house, if he finds it closed, and has good reason to believe the slave or thing is there.</p> <p>Under the common law, ‘ a man’s house is his castle,’ and an officer cannot legally break in, to execute a ca. sa. ovfi.fa. upon the tenant, or his goods ; but he may do , it where the\ process requires him to take pos session of any particular thing, - — as to execute? a writ of seizin,\ habere Ja. re-plevin, ca. tit lagatum, <yc.</p> <p>So also, if ono man conceals another’s goods in his house, the sheriff may break in to levy on them.</p> <p>To execute n. process upon a judg’t in deti-nue, the sheriff could not, at common law, make a forcible entry into the cleft's dwel Hns; house.— But now, under our ex’on law oflS2S, he may</p>

<p>If two, or more persons are sued jointly, ex con-tractu, and obtain a judgment in bar, and for their costs — upon which a writ of error is prosecuted — if one of them dies (the right surviving). it does not abate the writ of er-</p> <p>Joint action on arategumahtS" The note,</p> <p>Theguarantee.</p> <p>Demurrer and Pleasmbai-</p> <p>Decisions of the circuit court— and,</p> <p>Questions here.</p> <p>A note, or other contract, signed by one person, and a guarantee of the payment, or performance, annexed thereto, and signed by another person, are separate contracts— upon which no loint action can he maintained.</p> <p>A plea of a failure of consider, ration would not be good when the consideration (such' as it was,j was exe^ cuted.</p> <p>Instruction-</p> <p>Falso represen» tations oy the senei, as to the value of a commodity, or as to any matter that the buyer can ascertain by ordinary vigilance or enquiry, do not subject the' sener to any legal liability.</p> <p>Proof of fraud is inadmissible, where there is no plea charging fraud.</p> <p>Xu the sales of commodities, there is, in general, no implied warranty of soundness,quality or value.— Sales of provisions, medicines, and sales by sample, are exceptions. There is an implied warranty in all sales, that what is sold exists--susceptible of being transferred; that the seller (if in possession) has a good title; that a negotiable note sold, is genuine. Ifthereisa failure in either of these points, the consideration paid maybe recovered back, by assumpsit.</p> <p>An invention is a fair subject of sale. And if what has been sold, in- good faith, as such, is in fact an invention, its utility being matter of opinion, contingent, speculative,the transfer of the right to it, is a sufficient consideration to uphold the contract ,for the price, however useless and worthless the invention may prove to be.</p> <p>Whether the thing sold as an invention was so, or not, is a proper question for a jury.</p> <p>Where a joint action is bro’t against several, who are only liable separately, and they obtain' an erroneous judgment in bar, that would preclude plaintiff in another suit, it will not be affirmed, because of his first error in pleading; but will be reversed and remanded for new proceedings commencing with that first error.</p>