Volume 32 — Kentucky Reports

<p>From the Circuit Court por Mason County.</p>

<p>From the Circuit Court for Woodford County.</p>

<p>Chancery.</p> <p>Statementofthe íngjf ancl Plead'</p> <p>A party not in* uofmTiitainañ / original bill to J o^co^el^Ae''relinquishment | claim!— where one- in possession brings bis bill against those from whom he derives title, and makes others also, from whose claims he apprehends danger, defendants — requiring them to interplead with his vendors — the chancellor will take jurisdiction as between these defendants, and settle the whole controversy ; and the jurisdiction, having once attached, will not be taken away by the dismissal of the original bill ; a decree upon any remaining cross bill, will be efffectual.</p> <p>* The revenue de'Vwhiefriand was sold for tax-rights bTfemes coverts — a sale . of land in which any feme covert was a joint owner was invalid, and the register’s deed passed no title.</p>

<p>From the' Circuit Court por Woodpord County.</p>

<p>Motion.</p> <p>Judgnients against heirs,upon obligations of their ancestors, are to be levied of estate descended, and ifanysuchjudgment be entered without being ;8o modified, the omission will be deemed a mere clerical misprison, which may be amended, at the same, or any subsequent term.</p> <p>There is no statute, nor any analogous principle, limiting the time within which the amendment may be made. It may be done at any time while the judgment remains i» force</p>

<p>Ejectment:</p> <p>characterofthe suit*</p> <p>Title of the defendantg.</p> <p>Title of the plaintiffs.</p> <p>A record offered entire as evi denee, when some portions of it only are relevant, must be rejected.</p> <p>A record which cannot be used against parties to a suit on trial, because some of them were not parties to the record, cannot be used for them.</p> <p>An unrecorded deed has no effect against a subsequent bo-na fide purchaser, for a valuable consideration, without notice; but whe ther the party to be prejudiced by the deed, is that description of purchaser, or not, is a question to be determined by a jury, not by the court.</p> <p>Any writing that identifies the parties to a contract for land — describes it — ackno11- ledges a sale in fee of the vendor’s right, for a valuable consideration, and is signed and sealed by the grantor,and duly attested, is a good deed of bargain and sale, however concise or summary the language may be.</p> <p>An executory contract for land —with 20 years possession, being shown,a jury may,without further proof, presume a legal conveyance ;but the nature ofthe holding in such a case, may be explained, and the presump- ’ tion rebutted, by proof tending to a contrary conclusion. It is a presumption, founded upon law and fact, which a ‘jury may indulge, or reject: not a mere-conclusion of law. They should be instructed as to the legal effect of the possession #-c.and left to decide upon all the evidence. For. the judge to decide absolutely that the legal title has passed, because an executory contract and twenty years possession appear, is erroneous.</p>

<p>From the Circuit Court for Montgomery County.</p>

<p>From the Circuit Court for, Owen County.</p>

<p>Ejectment.</p> <p>Statementofthe iiT'the'3 cficuit court. ■</p> <p>Quit rents,con-conditions S/-C. in grants of land from the crown of G. B. were abolished by an act of Va. of >77, and of Ky. of ’96: such grants are not affected by a failure to pay-such rents or comply v ith such conditions There .can be no recovery upon a demise in the name of one who was dead at the institution of the suit.</p> <p>A deed conveying the fee simple of land to the grantee, altho’ it contain a declaration that the graiitee’s name is only used in trust for another, nevertheless passes the legal title to him, and there can be no recovery, at law, in the name of the cestui que trust.</p> <p>Lanás in this, state'flo not pass1 by desceitt to aliens, but vest in the co mm on-wealth, without' office found.</p> <p>' Confession of lease, entry and ouster, super. sedes the neces'sity of proof of actual ouster— even where the def’t claims to hold as tenant in common with the pltf.</p> <p>In ejectment, the declaration must be filed on the first day >f the term to which the notice is returnable. If filed afterwards, it is irregular, 8f the judgment subject to reversal.</p>

<p>From the Circuit Court for Mason County.</p>

<p>From the Circuit Court por Madison County.</p>

<p>From the Circuit Court f'or Boone County.'</p>

<p>From the Circuit Court for Shelby County.</p>

<p>From the General Court.</p>

<p>From the Circuit Court for Owen County.</p>

<p>Chancery.</p> <p>The question— to°a cros^'biu^ after a retunT* of ^ the ca"s"'» to com-comp’t having tuüorT^of "^f1" mentsmadeunou3 decree?^' 2 ,T. J. M. re-furred to, for a original suit,</p> <p>The cross hill fdnts.^ ^</p> <p>Objections to the oross bill,</p> <p>An erroneous beel^8satisfied^ and afterwards fendant is enti'tled io restituhe, or his executor, hens and. devisees, or the representatives ofa. devisee who cree, or part of That * Bthe*a WU does not show colkcTcd*1 '"by each, or eitherground*Vor deí muner-that by*^he answers and proofs, and by Its0'decree’ settle the hábilmes and rights of all parties.</p> <p>The court that rendered an erroneous decree, has, after a reversal, power to order restitution. If the cause, being remanded, is stil! pending, the res titution may he applied for by a cross bill — in which new matter of defence may also be introduced, to defeat, or diminish the complainant’s recovery.</p> <p>All parties to a cause in the ct. ofappeals, continue to be parties in the court below,when the cause is remanded, and need not be summon ed.</p> <p>íng a suit, and ¿ves1 feüto'rí vive it — thedefendant, or his representatives, may, nevertheless, file and maintain their cross bill,which may proceed, If a complainant dies, pendrevivor of the latter. and be heard before the original bill, or without any</p> <p>All joint defendants to an onnal bill, may properly unite</p> <p>To a bill for rementsmadeun» der an erronedecree — ithecre ditor having difid --his ex’ors if he, in his life after’his death’ collected any part of the money, are proper deft’s;so also, the^cree^who collected part of únd^hetrs'T so also, are all the see^of'the'par-"y who recoviseous decree™'</p>

<p>Debt.</p> <p>ty to pay the jVd°™ent0ordocree appealed ^ddamagesfin case of tj*™decree upon a ^equitable fn* teresttothepay men( ofa j“dS-orders the defendant to pay An app. bond, in legal form, binds the sure-it by a given day, and directs a sale of the property to be made, upon his failure to comply with the order, is not a decree for the debt. And a bond, executed upon an appeal from such a decree, conditioned that the appellant shall prosecute the appeal with effect, or pay “ the amount recovered by the decree,” does not bind the obligors to the payment of the debt — as, that being otherwise established, the decree only makes the equitable interest liable for its payment.</p>

<p>Ejectment.</p> <p>The facts of lire Q'ffSQ.</p> <p>The lessor of the plaintiff in ejectment must have title at the commencement of the suit, as well as at the date of the demise. Service of the declaration and notice in ejectment, is the commencement of the suit.</p> <p>A conveyance, by mortgage, passes the legal titletothemoitgagee; but if there is a possession of the land held adversely to the parties to the mortgage, it is ■within the cliam perty actofjan. 1824, and void; and therefore, doesnot destroy the mortgagor’s right of action against the tenants in posses-session. [See Judge Nicholas’ opinion upon this point, post p. 73.]</p> <p>Conveyances of land in the adverse possession of any person, other than the vendor or vendee,are void merely — there is no forfeiture of the title for that «aúse.</p> <p>Contracts to carry on land suits for part, or profit, of the land, are prohibited — the penalty, a forfeiture of the title of either party to the contract, to enure to the benefit of the occupant; who may piead or shew the fact, in bar of any snitforthoiand, brought by any party to such contract.</p> <p>ju{j„e Nic¡ho_ LAsM-emarks, decision?</p>

<p>Ejectment.</p> <p>Judgment in ejectment, in fa-heirs and devithat’had been sold by his act-mg executors.</p> <p>The devise in wto* the sale was mad^.</p> <p>The sale having been long <Je iayed, the heirs and devisees filed a bill for a sale, by the acting ex’ors, and appropriation^ the proceeds— decreed accordingly. .</p> <p>The heirs themselves undertook to sell the land ; but not succeeding, for six years, requested the executors to do it —who sold it to Muldrow, at a fair price.</p> <p>The youngest heir then of age.</p> <p>Instruction,that the deed of the the ex’ors passed no title.</p> <p>Grounds upon which the validity of the sale is contested.</p> <p>Land devised to be sold, may be sold by the acting,executors, where' no one is appointed by the will to malte the sale, or the nominee refuses to act, or dies before the sale. Statute of'97, §44.</p> <p>Reasonsfor con storing this will as conferring up on the executors power to make the sale.</p> <p>The act of ’97 comprehends oa ses, like this, where ex’rs are directed to sell,, and some of them do not accept the trust; and authorizes the salelry those who act.</p> <p>A power given to a plurality of persons cannot be exercised by apart of them; and this rule,the common law, before the 21 of H. VIII., applied to ex’ors, when, to them, ty theirt proper names, a mere power was' given, for then it was supposed to be given to them as individuals, nnd not as executors.— But—</p> <p>Where the pow er is conferred upon executor?, merely as such; or where it is coupled with an interest,or with an express trust consequent upon the primary power, (though given to the executors nominaiim,) it is to be understood as conferred upon them in their fiduciary character, collectively; and it survives as long as more than one remains ; — but not to a single one.</p> <p>Refusal of an ex’or to undertake a trust, may bepresumed from lapse of time and other' facts.</p> <p>Where there is a naked power tórstoselUand" it does not, at Burvive to one: —aiiter, when the power is coupled with an interest. Where the discretion of whethe™thero shall be a sale ’’97 does not apply. 3 Pibb, 349.</p> <p>If there is a positive direction in a will that land . shall he sold, its being coupled with a direction that the ex ors shall “lay out the proceeds to the best advantage for the children,” does not change it, or ren der í/i e sale discretionary with the executors : though part of •them who accept the trust may make the sale, while the concurrence of all might be required to distribute the proceeds.</p> <p>The style Sf teaorofthewhole' attended to, in deciding upon theexectóorsun der a particular ClflUSC</p> <p>The chancellor •cannot enforce the execution of BaTiftlie°power is connected ifitbefAe ttefy of the depositothe chancellor may enforce its execution‘or he may supply a defective execution.-A decree made, in such a case, with all necessary parties before the court, can bo impeached only by a regular proceeding — not incidentally, in a trial at law — there it must have its due influence.</p> <p>Exefcutors being directed to sell land of the testator — the will being silent as to .the time witlr in which tbo sale is to bo made, the power is not lost by-mere lapse of time, (17 years in this case.)— But the heirs- or devisees may object and prevent the salo, after an unreasonable delay.</p> <p>If a decree is made requiring ex’ors to sell land, as directed by the will, the omission, to comply for a long time, (six years,) doesnot invalidate the power. But the testator’s intentions must be observed,"and if he has limited a time, and that has passed, the power is gone— the chancellor cannot revive if;</p> <p>If a testator deyised land to be sold, to educate his children, it may be thence inferred, thattoe intended the sale should t)e made during Shpir minority.</p> <p>No sPe“fic aP~ propnation of - the proceeds of land devised to be. sold, being made, the purchaser is not bound to see to the application of the purchase money. And even where there is such an appropriation, and the purchaser fails to attend to it, the conveyance is, nevertheless, valid at law: the remedy is in ohancery.</p>

<p>Ejectment.</p> <p>Two former o-pinions in this ease referred to.</p> <p>Judgment for defendants.</p> <p>New evidence upon the last trial, in the ct. below.</p> <p>Instructions in that court, and questionnow to-be decided.</p> <p>The savings íá the second section of the limitation law of 1814, have no application to the seven years law of 1S09.</p> <p>Question reserved: — See tho following paragraphs.</p> <p>Actions, upon the) title of husband Sr wife, to lands granted to her during coverture, are barred by the 7 years law.</p> <p>A descent cast does not bar the right of entry of a feme covert, where the disseizin was during coverture, or in her infancy, if she marries, within age. Yet it does bar the right of the husband,orhusband and wife, during bis life— after which, it survives and reverts to her.</p> <p>Question, upon the effect, after disooverturc, of oftho statute,on the rights of the feme, under a grant to her during coverture : not decided.</p>

<p>Covenant.</p> <p>Written obligations may refer to other papers for names,sums frc. —The endorsement of a “ promise to pay the amount of the within note,” is a validobligation,although it does not name the person to whom payment is to bo made. The payee, as well as the amount of the note, and of the endorsement, must be the same, and the reference makes all sufficiently certain.</p> <p>The giving and receiving oi one obligation, in lieu of another, the parties to which, or some of them, are different, may he ■ pleaded as an accord and satisfaction. — The transuctionmust better the condition of one, or both parties; if it leaves them as they were, it is of no avail as an accord and satisfaction.</p> <p>Whether one obligation was given in satisfaction, or as a guarantee, of an other, — being a question of intention, — is to be decided by a j«ry-</p>

<p>From the Circuit Court for Madison County.</p>

<p> Scire Facias. </p> <p>Requisites of a scire facias against bail, under the act of 1829.</p> <p>A scire facias which does not contain the necessary recitals and allegations to shew the legal right of the pltf.tohavejndg ment against the defendant, is insufficient, and will be quashed on demurrer.</p>

<p>From the Circuit Court por Christian County.</p>

<p>Motion,</p> <p>A replevin bond —to have the force of a judgment, must to acknowledged before an officer— otherwise it is but a common law bond, on which no execution can legally issue.</p> <p>A constable is not liable for any failure to act upon an execution issuedupon a mere common law bond, not having the force of a judgment. Where a replev inbonddoesnot purport to have been acknowledged before an officer,evidence is admissible to show that a private person took the acknowledgment. —An obligor is a competent wit ness to prove that fact, in a trial between the obligee, and an officer charged with a failure to return an ex’on founded on tlie bond,</p> <p>The measure of responsibility of an officer for failing to return, in due time, commonwealth’s notes, is the value of the notes at the return day, with interest and damages, And there must be proof of the value of the notes, or the judgment will be erroneous. an execution</p>

<p>From the Circuit Court for Woodford County.</p>

<p>Traverse,</p> <p>Neither tenant nor sub-tenant can legally at-torn to any claimant of the land but the lessor under whom he entered. But— After the expiration of the term, the landlord may have a warrant offorcible detainer against any one in possession ; or he may make a peaceable entry, and having done so, may lease the land to the subtenant ; who will thereby be excused from restoring the possession to his first lessor ; unless he wasboundtodo so by express covenant — for breach of which an action is the only remedy.</p> <p>Upon a traverse of the finding upon a warrant of forcible detainer, brought by a tenant against his subtenant, evidence is admisible to show, that the plaintiff’^ term having expired, his lessor (the paramount landlord) had entered, and had leased the land to the defendant— tvho is, therefore, not bound to restore the land to the pltf.</p>

<p>From the Circuit Court por Garrard Countv.</p>

<p>Order.</p> <p>The will was mitted torreeordinthecounty court; and,afiterwards (without fault of the ex’or or clerk) was lost. Up-en the trial of a writ of error brought to reverse the order establishing the will, a sworn copy being produced,this court' dispensed with the production of the original, received proof of its due execution, and affirmed the decision of the coun, ty couit.-</p>

<p>From the Circuit Court for Woodford County.</p>

<p>From the Circuit Court for Montgomery County.</p>

<p>Ejectment.</p> <p>The titles of the parties,respect-</p> <p>Questions to be decided.</p> <p>Recital of evidence — which, tho’ it does not show that there were not intervals between the periods during which different tenants occupied, — is, yet, held sufficient to authorize a jury to infer,that the party’s possession was unbroken for 20 years or more, — and sus tain the verdict.</p> <p>Instructions, that “ if the jury believed that T. M. and those claiming under him wereinpos session of the land in controversy more than 20 'years, before they were divested” %-c. held to be erroneous — because not sufficiently explicit, (as ‘ the possession’ must have been adverse $• continual,) and may have misled the jury.</p>

<p>Traverse,</p> <p>Ejectment may be maintained tenanfby a°co-tenant — and so may a warrant 0f forcible entry and detain-er, when there has been a disseizin by actual force.-The warrant, in such case, may be in the usual form — the judgment must be for the undivided interest.-- A warrant for a forcible entry and detainer will lie only against a party in possession at its date — not against one whoi does not in fact hold the land.</p>

<p>Chancery.</p> <p>At a sale of land under ex’on, the debtor and the sheriff represented that certain improvements were within the bounds of the tract put up and soid; which not being the fact, the purchaser was deceived: —held that the best, if not the only, remedy for him, is in chancery ; that he may there have a rescission of the contract, and restoration of tho purchase money — with interest ; that he may assert a lien on the land— the execution debt- or being insolvent ; which may be sold ; and if the proceeds fall short of what the com plain ant is entitled to, he may have a decree, against the execution debtor, for the balance. No relief being prayed against the ulaintiff in the execution, he is not a necessary party.</p>

<p>From the Circuit Court for Bueeitt County.</p>

<p>From the Circuit Court for Greenup County.</p>

<p>Covenant.</p> <p>Suit, by an ^epr^‘eoftiie clerk, who, by had bound him, againstthe mas-trade to the appren¿entures, deciaration ■§'c-</p> <p>Indentures of apprenticeship, stating that the apprentice had been placed in custody of the master,the presumption is,that he so remained duringtheterm; and, in declaring against the master for fail— ingto teachhim, it is not necessary to aver, as the perform anee of a condition precedent, that he did so remain. If the apprentice, by absconding, or otherwise, prevented the master from teaching him,themas ter must show that defence by ,plea and proof.</p> <p>A bill of exceptions to a decision, that a particular question might be put to a witness, must show what testimony had beeu previously given — otherwise this court cannot say the question was improper.</p> <p>The phrase ‘the' art and mystery of the tanning business,’ will include the art of currying, or not, according to the general senseintheplace whereitisused. Xu this state, ‘the tanning business’ is generally understood as the entire pro cess of malting leather ; — and, therefore, upon the trial here,of .an issue, whether a covenant to teach that business, was performed, it is not . improper to ask a witness whether the apprentice was a good workman in cur. rying leather.</p> <p>A covenant to tfcean tPand mystery, binds folmakThim^s good a workaTthM^genfa-ally are who ¡eTmed^^ir however,theap deficient in capacity as not to be able to learn the trade, this will excnse the master: but if such excuse exist, it is for him to aver and prove it; it will not be presumed in the absence of proof.</p> <p>Where a lad is foam^a'0trade* and the indenthaTthe master shall teach him stery14it*"is sot enough that fords hiti/sufficient opportumty Sf instruction to enable lum to lea™ h; dutyofthemasthe ^apprentice to follow his timís butto'endpavqr to keep him in correct habits generally,and taire care that he applies himself to learn the trade.</p> <p>If a hill of exceptions, to the refusal of a ct. to give instructions, does not setoutsomeevidenoe to which the instructions would apply, they may be deemed irrelevant, and this court will not decide that the refusal was erroneous.</p>

<p>From the Circuit Court por Anderson Countt.</p>

<p>Indictment for obstructing a road.</p> <p>If a party indicted for obstructingaroad, would defend Jiimselfbyshow ing that he was authorized by the county ct. to change the course of the road, he must show that he had opened the new road ire core fortuity to the order,before he closed the old one: it is not for the com’lth toprovethatthe new road is variant from the érder.</p>

<p>From the Circuit Court for Anderson County.</p>

<p>Peace Warrant.</p> <p>A recognisance for the appearance of a party on the first day of the next ct., binds him to ap pear at the first court actually held : a failure-to hold the ct. and loss of-the term, at the regular time, will-not exonerate him.</p> <p>A recognisance was forfeited by the failure of the principal to appear in couit according to the condition ; but, asthe court next after the recognisance, was not hold at the time fixed by law, the judge considered the cognisor exonerated, and dismissed all proceedings on the recognisance . -— this was erroneous, and the order ofno effect. But as the cognisor was liable for the breach, if any, and not bound to appear-at any time after that — a reversal of the order would be-in vain, and tile writ of error is therefore dismissed.</p>

<p>From the Circuit Court for Fayette County.</p>

<p>Tjrespas</p> <p>taking tWfpltfs tile tune, which ^ property1 he, as constable, levied a Jifa. on the horse Sfc.: replication that pltf. was a bona fide house keeper fyc., and the. horse his only work beast not previously levied on by execution: this re plication is bad; for it shows that the plaintiff had other horses at tho’ they had been levied on.</p>

<p>From the Circuit Court for Harrison County.</p>

<p>From the Circuit Court for Jessamine County.</p>

<p>An Incidental Motion in this Court.</p>

<p>From the Circuit Court eor Washington Countv.</p>

<p>Motion.</p> <p>Where a suit in chancery is brought, to recover land, against several defendants,who hold defend, some under one title, some under another, unconnected with each other: if the bill is dismissed ^ costs decreed to the defendants, the taxation is to include as many attorney’s fees —$10 each— as there are separate andindependent titles and defences. to a"taxation of costs — no costs arerecoverable.</p> <p>A motion was made in the ct. below, to direct the clerk to include several attorney’s fees in the costs of a suit: it was so ordered, Sf that the other party to the suit pay the cost of this motion. In this court, the direction to the clerk is approved,but the order as to the costs of the motion, reversed — no costs 03' damages giver, here.</p>

<p>From the Circuit Court for Hancock Countv.</p>

<p>From the Circuit Court por Franklin County.</p>

<p>Detinue.</p> <p>The facts of the ease.</p> <p>Instructions of the circuit couit</p> <p>If one lends a slave to another, which, after a term, is to revert or pass to a third party, the termor, during hig possession, holds under the bailor, not under the reversioner.</p> <p>Ifthe agreement for the reversion, in such case, was not in writing, duly acknowledg ed and recorded; and the bailee and those claiming under him retain the-possession, in this state, for five years before suit, creditors and purchasers under the bailee, without notice, will be protected by the statute of frauds. — The same principle applies to tiie children of the slave, born during or after tiie five years. But the holding by the bailee and those claiming under him,must be in this state; the statute does not apply to a possession held in another state.</p> <p>One was possessed of a chat-. tel to hold for a term, after which it was to vest in another, and when the term expired, they were both living together in the same family: the actual possession may he presumed to have changed at the moment when the right of possesrion changed — a jury may so find, without proof of any action of the parties in reference to the possession.</p> <p>The act oflimitations, barring the rigjit to recover a slaveafter an adverse holding for five y ears, saves the rights of infants for 5 years after they attain to</p>

<p>From the Circuit C<?urt for.Franklin County.</p>

<p>Assumpsit.</p> <p>Af contract to pay for work and labor, may be inferred from circumstances, without proof of any express agreement.</p> <p>For worn done by one, at the request ol another, without any stipulation as to, price, the law implies a promise by the employer to pay what the lanorer deserves to have.</p> <p>The plaintiff, a female, was pia ced, when a child, in defendant’s family, and remained at hard labor, receiving but a bare- support, until she was 24, when she was driven otf; she then sued for pay for her services : held, that the case (the evidence more particularly recited in the text) should have been submitted to the jury — who, if they believed, from all the circumstances that jdef’t requested .the plaintiff' to do the work, and that there was a promise on his part to pay her, should have found, for her, the value of her services, from the time she came of age. But, if they believed that the services were vo luutary, or -intended merely as a recompense for her support, they ought to have found for defendant. Instructions as in case of a non-suit, were erroneous.</p> <p>A female plaintiff, visited by defendant,seeking to settle the controversy -— denied, in a state of alarm, that she authorized, or knew of, the suit, and said she had no demand on defendant : — not ground for a non suit; the jury may take this, with the other evidence, and allow it what weight they will.</p>

<p>From the Circuit Court for Hardin County.</p>

<p>From the Circuit Court opor Lincoln County.</p>

<p>Trover.</p> <p>Tbe questions decided.</p> <p>A tenant may sell his goods and chattels during his term, by sale absolute, or by mort gage ; and they will not thereafter be liable to the landlord’s distress, altho’ they remain upon the demised premises.</p> <p>Possession by a mortgagor is not per se fraudulent ; nor is it, in general, any evidence of fraud in fact. ')</p> <p>The interest of a mortgagor is not subject to distress for rent: the acts subjecting equities to ex’on, do not subject them to distress.</p> <p>A mortgagee, like any other having a general or special pro perty in goods converted, may maintain trover for the conversion.</p>

<p>From the Circuit Court for Adair County.</p>

<p>Traverse.</p> <p>Whore a tenant disclaims holding under the landlord from whom he received the possession, and attorns to a stranger — the attornmentbeing void in law,does not operate as adisr seizin of the landlord. He may, however, elect so to consider it, and bring his action for a disseizin.</p> <p>A possession, by the mere occupancy of a tenant who disclaims holding of him under whom he entertered, and, with out his landlord’s consent, attorns to astran ger, is of no avail to the stran ger ; and if the landlord, after the departure of the tenant, resumes the possession, it is no forcible entry ipon the land >f him to whom ,he tenant thus mlawfully attorned.</p>

<p>From the Fayette Couhty Court.</p>

<p>appeal FROM A J. P;</p> <p>and takes the' n,otc of thep.urchaser,towhom he gives a writing, warranting the clock said, and stipulating, that, if it does net perform well, he will takeitback and furnish one that will, and. that, if he fails-, to furnishagood 'one, . he shall have no pay : held that this writing, connec ted with proof that the clock was bad, and was returned,or. tendered back- or that there-was a sufficient excuse for not offering to' return it, would amount to a defeasance of the * note. But the writing will not by itself amount to a defeasance;. and would not. be available as a defence to an action bn the note, without the proof aliunde.-But the clock-maker having taken back the clock, under his agreement to furnish another and a good one, if the first did not perform well, or have no pay — ■ the delivery of a good dock, in lieu of the one taken back, became a condition preces dent; the performance of which he must prove, before he can recover on the note. — The clock being left at the purchaser’s house, must be doomed, not an acceptance of it by him, but merely a willingness to try it.</p>

<p>Debt,</p> <p>Ifa judge,whh« addressing a jury, oses lanfd^o induce them to believe that it ¡3 their duty to decide a fact submitted to them, one way or another, as by teiiing them, that “it is the plainest case he ever saw in court” — ‘ that the note was proved to* llave been altered” or the like — the jury being the triers of the facts, the evidence of wUk:k. they are to weigh — he commits an error, for which the judgment may be reversed.</p>

<p>Debt,</p> <p>If two joint ob~ 'pleads non est facdTcT’in^his'fal vorupon thousment'intai-plfe plaintiff may proceed to take judg’t against the other obligor. But he cannot dismiss the suit as to him who pleads in. bar, leaving him thereafter liable, and proceed against the other : the latter, if sued aloue, might plead the nonjoinder of his co-obligor in abatement, and cannot be deprived of the effect of this right, by such dismissal.</p>

<p>Chancery,</p> <p>Bill for relief against a judg’t, on a note given for an equal amount of depreciated bank paper, on the ground of usury. — Answer, denies the usury and loan was a sale of the bank notes. Bill dismissed below.</p> <p>The proof— which fails to es tablish the fact of a sale of the notes, but rather oonduces to provethey were lent.</p> <p>Where onepar-. ty delivers to another, depreciated ban)< notes and takes an obligation for then-nominal ambit, payable in specie, at a future day, with interest — the transaction, nothing else appearing, must be taken to be a usurious lending.</p> <p>Held, that 'the evidence(above recited, unexplained by other facts, tends to fortify the presumption of usury.</p> <p>Relief decreed to the amount of the usury.</p>

<p>In a proceeding to ascertain the damages to the-owner,upon the appropriation of land for the Lex ington and Ohio-Rail Road, the sheriff’s return must show,that all the requisitions of the act incorporating the company (§15,) have been complied with.</p> <p>The sheriffmay make a return after the case has been reversed,and remanded fornew proceedings — on which, if it is-sufficient, the court may give judgment.</p> <p>It is not indispensable that the notice to the owner of the land, should be by personal service.</p> <p>A return of the writ “ executed” implies a legal notice to the owner of the land.</p>

<p>Pet. & Sum.</p> <p>The agreements which lawyers may make with their ciiens, for fees, are not restricted by law'; and where there is no special agreement, the law will allow cbmpensation, according to the value of the services.</p> <p>Contracts between lawyers and clients are subject to a severer scrutiny than those of ordinary men. —If it appears, that a client, suddenly discovering, that he is in a perilous condition, by reason ofan unexpected occurrence in relation to his counsel, —is induced to agree to hard terms with certain lawyers,for want of time to seek the aid of others ; or, if it. appears,thattke client is persua-i ded by an at torney already retained, to make such a bargain with others to be associated with him,as he would not have made, but for that persuasion — the chancellor will relieve the client from the con tract, hr from the excess above a fair com pensation for the services rea dered.</p>

<p> Writ of Right </p> <p>%* This case was'decided at the Spring Term, 1882; but, by some accident, was omitted in the Reports of that period, and is now first published.</p> <p>Case] formerly here. — Proceedings and judgmentinthecirjhereturnofth& mandate,</p> <p>jiattei.;aatate„ mentthatmigto have been pleaded when the first plea was filed, or which existed before the last continuance] is not available at a subsequent term. But a former.plea in abatement, or in bar, is no objection to filing another, alleging matter that has occurred since the last continuance.</p> <p>A writ of right abates by the death, of any one of the demandants: post The death of a party, suggested on the rocordatonetermj cannot be pleaded in abatement at a subsequent term, by plea puis darrein continuance: the record is an estoppel.</p> <p>Surviving demandants in a writ of right, cannot have a judg’t for all the land, when no right of survivorship appears by the record; Nor can. any judg’t be rendered in the action after an abatement as to one of several demandants, by his death, whether the whole right survive or not: for the suit abates, and none of the statutes authorizingrevivors,apply to real actions.</p> <p>Tbe derith of either party between verdict and judgment, in any action, shall not abale, or affect the suit; Act of’96, §5 — but this act does not apply to the death of a party before trial.</p>

<p>From the Circuit Court for Madison County.</p>

<p>Debt.</p> <p>Legatees appoint an agent, who receives their legacies from a foreign executor. Creditors ofthe testa tor attempt to attach the fund in the hands of the agent, by a proceeding in chancery, with injunction restraining him ‘from paying 0-ver the money, or putting it out of his hands.’— The injunction being dissolved, at the instance of the legatees, and the agent having, in the mean time, left the state, insolvent, they sue the attaching creditors,forthe injury resulting from the injunc tion. — Held, that, as the agent was not a debtor of the ex’or, nor garnishee,'# could not avail himself of the injunction to resist paying over to his principals (though he might have enjoined them, giving security, and compelled them to interplead with the creditors,', they were not prevented from coercing payment from him ; and had, therefore, no cause of action against the attaching creditors.</p>

<p>From the Circuit Court tor Madison County.</p>

<p>From the Circuit Court for Spencer County.</p>

<p>Chancery.</p> <p>A decree rendered upon constructive service of process, remains in force —although the defendants may have obtained an order to open it, filed answers §-c. — until it is set aside by sentence of the court, after the hearing upon the matter of the answers ; — ■ and the pendency of a suit upon the answers so filed, cross bills &c. will not prevent the prosecution of a writ of error, and reversal of the decree.</p> <p>Where there is a decree against several absent joint defendants,which they may open, or reverse — one cannot, by obtaining an order to open the decree and filing his separate answer, aifect the right of the whole to their writ of error.</p>

<p>Debt.</p> <p>Where the condition of a penal bond, or the effect of a covenant,is, that the obligor, or covenantor, shall restore or deliver a certain slave, at a specified time, — If after the execution.ofthe writing, and before the time for the restoration or delivery of the slave, he runs away, or dies, and the obligor, or covenantor, cannot recover him, by proper efforts and diligence, he shall be excused from performance;— and no action can be maintained against him for this breach.</p> <p>Where a mortgagor, in obedieiice to ¡morder of court, ILveSthemortgaged property forthcoming, to answer the decree — (paste 248-9) — the measure of damages, in an action on the bond, is the amount of the decree, if that is less than the value of the property ; otherwise, the value of the property. " -</p>

<p>From the Circuit Court for Scott County.</p>

<p>Debt.</p> <p>Statementofthe case, and prindecided.'11**° b6</p> <p>, . ._. replevin (other than between tenantandlandlord,) failing in his action, he and his sureties are liable on their bond (taken under the act of 1830,) for the value of the goods replevied, where the value is less than theamount of the ex’ou, with interest, and ten pr. cl. on tho vulue of the goods, as damages.</p> <p>The damages given, by the act of 1830, iigainst the pltf. in replevin who fails in his action, are tenpr. ct. on the value of the goods replevied, if that is less than the amount of tile ex’ou ; and on the amount of the ex’on where the value of the goods exceed it —without regard to time. The interest given bythesame act, is to be computed from the time when the writ of re-* pievmwasexecuted, not from its date.</p> <p>The plaintiff in replevin (under the act of 1830) failing in his action, is liableto the deft., for the reasonable amount of fees, above the taxed fee, which he has to pay to his attorney for - services required in consequence of the replevin-</p> <p>Sheriffs weft notentitled (before the act of 1831) to half commission for levying ex'oils on goods that are afterwards rejilevied out of their hands.</p> <p>A fee bill is not evidence of costs incurred in a particular suit, where it does not specify the suit.</p>

<p>Chancery.</p> <p>Sale of a tract of land, described in a covenant for a conveyance, by its boundaries, and as containing 400 acres, for $6000,‘full eon ¿deration.’</p> <p>There are 490 Seres — and the vendee files his bill for a conveyance of the wholefortliesix thousand dollars. The vendor insists, that the sale was, in fact, hy the acre, at $15,the parties being un der arnistakeas to the quantity, which, from a family tradition, liad been called 400 acres ; and that he had a right to retain the surplus, unless he was paid for it.</p> <p>Circuit courtdecrees a conveyance of the 490 acres,for $6000</p> <p>In the absence ofproofoffraud,. or of mistake in ¡drawing a contract, orsubsaquent modification of its technical import— a written contract must have the same effect in chancery, as' at law — parol testimony, to change its effect, being inadmissible.</p> <p>The. main question in this case.</p> <p>In Va. it has been decided, that, where a very great difference (33 per cent.) has been discovered, between the actical, and the estimated, quantity of land sold in the gross,the contract may be presumed to have been founded on a gross mistake as to quantity, and the injured party may have reliefin chancery. An(l, also, that where the difference is nolgrea ter' than a purchaser in gross might have anticipated, there can heno relief!</p> <p>Review of the' tacky1 deciSns upon alleged quantityoHand Result,, that, in an executed contract, where there has been a 'gross mistake in the quantity sold, for “ more or less,” the complaining party, who has practised no fraud, nor any culpable negligence, norimpaired his equity in any other way, is entitled to relief in chancery. And the condition of the injured party is still more favourable, where th® opposite party comes into chan eery for a specific execution —for then, he. must show that he has a clear-right to it, equitably and conscientiously' oihervvise,hewili be left to his legal remedy.</p> <p>Every case of a qaieof land,upon which relief is sought in chan ■eery, upon the ground of a mistake in thequan tity, must de■pend on its own peculiar circum •stances.</p> <p>•subdivided into cach classedic^ tfaed.</p> <p>Where the sale the*'tractor where the quantity is stated merely by way of description, chancery can afford no relief (when there is ao fraud) on the ground of mistake in the quantity. — BuW*</p> <p>Where, it ap-■ pears that tlm’ the sale was in gross — the parcontempkte^t intend to riskconmion^surplus, or deficit; eale,Wtho,etechnicaiiy a sale inffet,’a'lale by the acre, the injuredparty may have relief in cka»cery — pvovided he has-not, by his con-'his ex-quity.-</p> <p>a wn-tten contract may de iand,° stde gross, aetechnical impon of the'writing, parol evidence —not necessarily conflicting with the written . fwidence, may be admitted, to show that the contract was in fact made with reference to the number of acres, as to which the parties wore under a gross mistake, when the contract ysss «drawn. ' ''</p> <p>Decree by this court: — thevendee to pay for the surplus, dr acceptadeedfor the 400 acres, without it, (an option which the vendor had offered him;) or have his bill dismissed.</p> <p>A complainant cannot have a specific execution of a contract in writing, varied or modified by paroievdenoe.</p> <p>A vendee required to surrender a surplus, may eleet from which end or side of the tract it shall be taken.</p>

<p>From the Circuit Court for Anderson County.</p>

<p>Chancery.</p> <p>The authority of the courts of ehancery to decree the sale of the real estate • of infants, extends only to estates descended to them.</p> <p>Where a special jurisdiction is given by statute, the record must show a case within . he statute; other-, wise, a defect of jurisdiction will be presumed. This court will will not decide whethera decree is void or not,in a case where the purchaser of an estate sold under the' decree, is no party — hs on that, his tii. tie depends.</p>

<p>From the Circuit Court por Fayette County.</p>

<p>From the Circuit Court por Laurel County.</p>

<p>From the Circuit Court for Mason County.</p>

<p>Ejectment.</p> <p>A bill of exceptions may be signed by three by-standers, upon the refusal of the judge to sign it, (Act of ’93, Dig. 188 ;) and their signatures to the bill itself may betaken as a sufficient attestation of its truth ;but where they sign, not the bill, but a certificate stating that it was presented to the judge, and that he refused to sign it — this is no attestation that th ■ bill con tains the truth — . which must appear by the record, or this ct. cannot receive it as an exemplification ofthe proofs on tho trial below.</p>

<p>Chancery.</p> <p>After a judg’t on a title band, for a failure to make the conveyance,the obligor cannot, in general, enforce a specific exeeu- - tion of the contract, or obtain any relief in chancery from the judgment at law. Butthere are exceptions : here, the purchaser knew the stateof the vendor's title at the time of the purchase ; had received and continued to hold the possession; sustained no injury for want of the legal title; had paid all the purchase money— the last■ payment enforced by suit; the vendor, before the suit, had apprized the purchaser that he was ready and willing to convey, and,pendingtlie suit, had obtained a complete title, and tendered a deed to the purcliaser — who had, until his suit, neither refused the title, nor demandedit,nor evinced any disposition to rescind the contract: held that, under these circumstances, he was bound to take the title, not with standing his judgment at law — - the injunction on which, is perpetuated,except as to the costs; thus far, it is dissolved, with damages.</p>

<p>From the Circuit Court for Pulaski County.</p>

<p>From the Circuit Court for Livingston County.</p>

<p>AssumpsitI</p> <p>Assumpsit, for use and occupation (as between landlord andtenontimay be maintained, even upon an implied contract to pay.— But—</p> <p>A vendor cannot maintain assumpsit against a vendee, for his Use of the land, while in possession under a contract of sale, after-wards rescinded. As between them, and in this view, the relation of tenancy does not exist; and the law implies no promise by the vendee, to pay rent.</p>

<p>From tiie Circuit Court for Madison County.</p>

<p>flíDÍCTMENT,</p> <p>The term money, in the technical sense of judicial proceedings, means nothingbufgold and silver coin. Every penal of-fence must be proved as laid in the indictment. —A charge,that the def’t set up and kept a faro bank, at which mone?/was bet, lost and won, is not sustained by proof that bank notes were hot, lost and won.</p> <p>: right of peptory chale, in penal s (not felo)extends to 0 jurors, as ises strictly . 3 J.J,</p>

<p>Traverse.</p> <p>The case.,</p> <p>The character ^settlements!' possessions and parties respectively-</p> <p>Decision of the circuit court.</p> <p>An actual residence upon the land} is indispensable to ensure to the occupant, the protection of the act of 1809, for the speedy adjnstmentofland claims — “ the 7 years law:” so decided, often apd invariably. But the precise meaning of the terms ‘ settlement’ — ‘settle,’ as used in .that act — what possessions the former term may include — hasne , ver been heretoforedetermincd by this court. [Judge Underwood thinks for mev decisions have defined Jhnedthemeaning of the terms. Dissent: post.]</p> <p>Review of various cases, upon the seven years’ law, with reference to the question, whether tho act ap</p> <p>plies when the* dioellinghouse of the settler is not upon the part of the land adversely claim ed — none of which cases,(as the majority an-, derstand them) contain any decision, or intimation, that the act is to be so restricted in its operation.</p> <p>Anderson vs. Turner, 3 Mar 13 , first examined.</p> <p>Miller v. Humphreys, 2 Mar. 446, and—</p> <p>Hite’s Heirs v. Shrader, 3 Litt, 445, examined</p> <p>The boundaries of a settler’s claim, and of his actual settlement, may be different. — ,. —But, a's fab as permanent ‘improvements have been made and used by a bona fide set-.tier,.in connec•tion with, and .subservient to his residence, and within the limits of a claim under which he settled — so far his ‘settlement’ extends ; and if such improvements extend into an adversary claim, he must be deemed a setller thereon;and, by addling to his improvements, he may enlarge his settlementiand, when he thus encroaches upon an adversa-' ry claim, within the limits of ’his own, he will "be deemed a ■‘settler’ upon the interference from the time ofthe encroachment — when the statute begins to run, and, after 7 years, affords its protection. [Judge 'TJ. thinks the first entry ofthe settler, with title,or his acquisition of title after entry, are •the only points, at which the •computation of time can com■inence. — Dissent — r,post. 3</p> <p>To constitute an actual settlementuponland, to which there tei&ring dalnT the dwelling tierSor sometíthe improve-ed with itjtnust be upon the the adversary claimanthas no and his right wfii not bo affected. But whenever the settler encroach, es uponthelap, it operates as notice tohisadversy ;who may-then bring his suit; and if ho fails to do so, for seven years, lie will be barred.</p> <p>Review of cases supposed to conflict with the construction given in this opinion, to the 7 «g-wslaw; vizr</p> <p>Bodley v. Coghill’s heirs. 8 Mar. 615—</p> <p>Hog v. Perry, 1 Litt. 173—</p> <p>Smith v. Nowells, 2 Littell, 160-</p> <p>May's heirs v. Jones &c. 4 Litt. 124 — and Conclusion that the cases of Hite’s heirs v. Shrdder, Miller v. Humphreys, and Smith v. Nowells, favor the construction now given to the "act, while there is no case containing even an. intimation,conflicting with it. [Judge U. takes a different view of the cases.— Dissent: past.] Where different settlers,under in terfering claims to the same land, have improvements, united with their residences, upon the lap, and the possession of neither has been interrupted by the other, within 7 years —the extent of the possession of each will depend on his title and other facts to be proved.</p> <p>Erroneous instructions are cause for reversal, notwithstanding thever diet may be such as it ought to have been, expositLn°ofthe law.</p> <p>DISSENT,</p> <p>Themeaniiwof the terms ‘set-tier* • ~ ^ ssttls-” ment,’ as used intheKentucky statutes generally, discussed.</p> <p>Requisites of the seven years’ law, to enable a settler to avall himself of its protection.</p> <p>The statute begins to run from tier entered on the land when he entered with title, and from the time when ne acquired tiie tit)e, if he had ?ered°Uwkhout one. The ex-wards”’of^the improvements his dwelling house, mto the limits of an adversary claim, will not make upon it, within the acTnÍ[The othevtwojudges 30S*ja~^nte</p> <p>Examination of the record and opinion m Anderson v. Tur(aa’^ud^U1 uijderstandsit,) tiñí majority is inconflict. Anie ° '■*</p> <p>«TeS View of the cases of — Bodley v. Coghill’s hs. 3 Mar. 615—</p> <p>Hog v. Perry, 1 Litt. 73—</p> <p>Smith v. Nowell’s, 2 Littell, 160—</p> <p>MayJg he¡rs Jones $c. 4 TOnoiusi^tljiit these cases and ¿ate¡ provetliat tin; settlement 3nd I'Ps^d&YitCC 0f a defendant must be on that part of his land with which an ylve'/.Ka|y a-,alm thorize him to ag^nUyea"s ]a‘® for his protec™ses »' conflict with the opinion of the court, in this case-</p> <p>Remarks on the heiminShradert</p>

<p>Ejectment;</p> <p>Statementoftl'fe cas0-</p> <p>A grantor may make a deed with an intent to defraud creditors : yetjifitis 'upon a fair bona fide consideration, to one who had no participation in, or knowledge of, the grantor’s fraudulent intent, it will be good and valid.</p> <p>The title of the defendant in an ex’on, to land in the adverse possession of a stranger, may be sold by the sheriff. — l Dana, 2il.— But, to sales by a purchaser under the ex'on,. the champerty act applies: and be can neither convey thel and, while the adversepossession continues, nor make any eharn perty contract eoncerning it.</p> <p>Tho’ it may be unconstitutional to declare the title of the parties to a champertous contract, forfeited to the state, for the benefit o fan adverse occupant : yet there cap be no doubt of the power of the legislature to authorize an investigation of the circumstances under which a suit is commenced and carried on; and to ascertain for whose benefit it really is, and to withhold the right of recove- , ry, where it appears to befoun ded on a champerty contract.</p>

<p>Chan obey.</p> <p>B sells land— first to T. and H, then to 0 ; who pays'!'50down, and gives his note,for ÍMOO, “which R agrees shall not be paid unless the sale to T, and H was cancelledjit --as not cancelled, and 0 purchased T.’s interest.. Suit is brought on O’s note for $100, and' he defeats the" action, upon those facts. The agreement, as construed here, authorized R to retain the $50, and f to retain the title B had conveyed to him ; and held, that there is no ground for a rescission of the contract.</p> <p>Courts of equity cannot revise judgments at law, to correct unjust or improper verdicts. The remedy, in such a ease, is to be sought in the Court of Appeals. The judgment roust be deemed right Sr just until it is reversed.</p>

<p>From the Circuit Court eor Shelby County.</p>

<p>Detinue.,</p> <p>Detinue cannot be maintained where the thing sued for had ceased to exist ■when the suit was brought— us for a slave after his death : though it may be maintained where the defendant has parted with thepos session of the chattel sued for, or where it was tin being when the action was institued, but perished after-wards.</p>

<p>From the Circuit Court for Spencer County.</p>

<p>Ejecthe**.</p> <p>stateiftentofthé °386,</p> <p>instructions,</p> <p>Questí®n&ri!é. cisión,</p> <p>Record of a chancery suit, and a sale under the decree, through which the plaintiff derives title.</p> <p>A decree, upon U bill for a foredosureandsale, which . orders, that, unless the defendant pay so much, by such a day, his “ equity of redemption in and to the mortgaged premises,” shall be sold, authorizes the sale Of that equity only :— not of the mortgagee’s interest— especially where t|ie advertisement and deed, by the commissioner, are in conformity to the decree, and the sum produced by the sale, inconsiderable.— Such a deed does not pass the legal title to the estate.</p>

<p>From the Circuit Court for Jefferson County.</p>

<p>From the Circuit Court vor Anderson Count?.</p>

<p>.From the Circuit Court for Losan County.</p>

<p>From the Circuit Court eor Christian County.</p>

<p>EjectmeSt'.-</p> <p>Bastards have no inheritable blood, and cannot have cither brothers or sisters, in legal contemplation those of tils' same mother cannot derivo estates of inheritance from, or through each other. The statute of descents (§18) enables them to take real estate by-descent immediately from or through the mother, in the ascending line, fytransmit it to their line as descendants, in like manner as if they were legitimate. But it gives them no capacity to take an inheritance from, or transmit one to, the collateral kindred.</p> <p>Where an infant dies, without issue, having title to real estate derived by descent from the father, his mother shall not succeed thereto, if there he living any brother or sister of such infant, or of his father, or descendant of either — Statute of Descents, section 5. But the statute intends legitimate brothers fyc.; if there bó none such, the mother succeeds to the estate.— [Judge Underwood thinks the bastard brothers and sisters may take the inheritance by fores, ....... -Dissent, post.] of the statute.-</p> <p>DISSENT, by Ju<%® Under-holds, that the 18111 sectl°<‘ °f scents, of¿796, places bastards upon tue same footing, in ail ^^’inherí tance on the that are legitimate*</p>

<p>chanoíriy.</p> <p>StatementofBie case'</p> <p>Two persons— are joint claimants of a lot; and6'covenants to deliver^ the upon payment mona P.mChthe whofefallsduel payment is entorced, and the deed made and dlnglh theThpulation, before tahis ufmajority. — The vendee cannot object to the deed on account of t]jp infani^y of one-of the grantors — for such a deed is all that the covenant calls for,</p> <p>Parties in chancery, seeking a specific execution of their con tractsto convey land, may he alio- ed time to perfect their titles, or to obtain evidence of their sufficiency-</p> <p>Where a Unit in the chain of title to land, consists of a pro ceedingin chancery and order or decree for the sale of the . land, as the estate of heirs — . if the record contains no evidence that the parties whose estate was sold, were in fact the heirs, and o.nly heirs, of .him who died seized, it is insufficient, and the heirship must be proved by other evidence, Nothing contained in a record, is evidence against one who was no party to it.</p>

<p>Chancery.</p> <p>Stoteinentofthe l<hsp'</p> <p>A vendee of land, by bill m chancery, asks for a rescission of the contract, restoration of the money he had paid, an injunction tyc. upon the ground that hi* vendor had no litio, and is insolvent ; and afterwards, hy amended bill, prays fora specific execution, as to so much as the vendor can show title to : it appearing', that the vendor had no title to part of the land, and not a clear one to any of it, the vendee cannot complain of a decree rescinding the contract entirely.</p> <p>When a contract forthesule of land, which the purchaser has paid for,and was put in possession of, is rescinded,for causes free ol fraud, the use of the money, and the use of the land, are held to balance each other : the decree should, in general, restorethe money to the purchaser without interest— the land to the vendor, without rents or profits. But— |</p> <p>If the purchaser has made valuable and lasting improvements on the land ; or if it has suffered in his hands thro’ neglect or mismanagement— these things are the subjects »f valuation, account, and final settlement by the decree.</p> <p>The amount to líe allowed for improvements, to one who has themfor atime^ is their value renders'1 ethemj uot their value werímade.1'16^</p> <p>wrar^nd^tear! in the prudent^ UuKhtlie'occupant is not answerable. «or waste and deteby «ros^nevleot" or ^mismanage-account"6 If a balance of ^^remdnÉTun" paid when a sale'of land*of which the purtheTse/is rescinded, the sled to interest on it, in lieu of rent.</p>

<p>FrojsI the Circuit Court for Jefferson County.</p>

<p>From the Circuit Court for Madison County.</p>

<p>From the Circuit Court for Mercer Countt.</p>

<p>From the Circuit Court for Woodford County.</p>

<p>Indictment.</p> <p>Statement of the evidence.</p> <p>For keeping a tippling hou&e, the offender incurs a penaltyoffcGO- the Aggregate of £¿u imposed by aw act of 793, of $50 imposed 44 ia addition” by the act of .831.</p> <p>Evidence that a man sold liquor by retail, which was drunk in the house where ifc was bought, authoi izes the in.** Terence that he kept a tippling house?</p> <p>A tavern license should dcsignate the house where the tavern is to be kept, and will not serve Tor any other’house.</p> <p>ÜpoiTthTtrml of an indict-in^tipplnig hnoseat a carot^a™'offence” committed at an alter tune, is m-admissible.</p> <p>A license Lavecfto one^iminj to keep tavern house,1?1Utí^from which he after-wards removed —another being indicted for retailing spirituous liquors in shmv°thatn'be did it, as the a - fnc/under^the cense of, him granted'1;11'and may, on that ground, be acquitted by the jury.</p>

<p>idoTtoR.</p> <p>An estate in pMsbywmoepatine will. catkn*to^co" conrt, for a partition of estate descended, arnong the heirs, it must be shewn, by affidavit, that such of them as do not appear,have been duly served with notice.</p> <p>To authorize a proceeding in a county ■ court, for the partition of estate descended among theheiis,it must appear, that the land,being with in the county,is within, thejurisdiction of the court.</p>

<p>From the Circuit Court for Fayette County.</p>

<p>From the Circuit Court for Mercer County.</p>

<p>From the Circuit Court for Jessamine County.</p>

<p>From the Circuit Court for Mercer County.</p>

<p>From the Circuit Court for Franrxin County.</p>

<p>Debt.</p> <p>Statementofthe case.</p> <p>The levy of a junior execution upon the property of a stranger, is no injury to the plaintiff, or to thesurety of the defendant, in an eider execution, for which they can make the officer liable;— the parties to tlie elder, must show that the property sold was liable to it, to sustain an action against an officer for misapplyingthe proceeds.</p> <p>Evidence to con tradict or explain a deed— as,to show that, tho’absolute on its face, it was only intended as a mortgage, is “not admissible, in a trial at law. That a deed was made for a frau dulent purpose —as to screen the land from creditors, may be shewn, by parol proof; and the fraud being established, a a sale of the land under execution against the grantor, will pass the title.</p> <p>An officer who, with a senior and junior execution, in his hands, levies the latter first; in consequence of which, the former is satisfied by a sale of the property of a surety, is liable to the surety, for damages, to the full, value of the su- ’ rety’s property-sold : unless the defendant’s effects were insufficient to satisfy the senior execution: then the officer is only liable for so muoh of the surety’s property as sold for the sum the effects of the principal brought - not for what was required to make up the deficiency — the loss, by sacrifice, if any, being thus cast upon the officer.</p> <p>[.fudge Underwood thinks the measure ofi of damages against the officer, is the proceedsofhsmuoh of the surety’s property as was wrongfullysold, without regard to actual value and sacrifice.]</p> <p>The fact that money had been made out of the defendant in an execution, after the sheriff had sold his property, and applied the', proceeds to the' satisfaction of a junior, ■when he ought to have applied them to the elder ex’on, does not affect the right of the surety in the senior execution, who consequent ly had the debt to pay — against the sheriff, for .damages for his illegal proceeding ; and evidence of that fact, on the trial of the action of the surety against the sheriff, is irrelevant.</p> <p>Judge Underwood (differing from the majority of the court) is of opinion that the sheriff is only liable to the surety, for so much as the fatter had to pay, and could not recover of his principal ; fy, consequently,that evidence to show the abilitv of the principal to pay something, is admissible, to reduce the recovery, pro tanto, and even to nominal damages.</p>

<p>Indictment.</p> <p>A defendant indicted as a common gambler, is not entitled to a bill of particulars, or spefication of acts intended to be proved against him.</p> <p>It is a general rule that‘where general character, ■ r behavior is put in issue, evidence of particular facts may be admitted ;— but not where it comes in collaterally.’</p> <p>Barratry is an exception to the general rule:— one indicted for that offence is entitled toa bill of particulars.</p>

<p>Trespass.</p> <p>'The pleadings</p> <p>Tlie evidence.</p> <p>An officer, having an executi°n against a def’twhoseproperty ;3 upon the possessions of a stranger, may enter upon the stranger’s land, and go into his buildings —breaking open out-ho uses, and entoringdnto the dwelling house when it is found open, to levy on the defendant’s goods. Put thesethings the officer does at his peril : if the def’t has nothing upon the premises subject to the levy,theoflicer, the plaintiff directinghim,aud those assisting, will be deemed trespassers ab initio.</p> <p>An officer cannot lawfully enter by force, into a dwelling house, (to lilt thelatch and enter, is to enter by force) to levy an execution on thegoods of the owner, or any other goods deposited there, without fraud or covin ; nor to serve civil process upon anyofthosewho dwell in the house. But the occupant of a house cannot use it, to protect the goods of others from execution, or to screen strangers from the service of process ; and where goods have been deposited, or strangers have taken shelter, in the house, for such purposes, and are not surrendered upon the requisition of tho officer, he may break open the honse, and go in, to servé his process.</p>

<p>From the Circuit Court for Simpson County.</p>

<p>From the Circuit Court for Fleming County.'</p>

<p>Indictment.</p> <p>The act (of ’9U.CUIlcerr,'»g declares that— fe^ghail be madeacross, ]°¡c'"wick Pthe owner or tenant of the land shall pay” the penalty: no other person is made liable, §• no indictment can be maintained under ocf, unless it charges that the accused was the owner or tenant of the land.</p> <p>A fence in a road, is a nuisance, at common law ; and he who builds it may he fined andimprisoned.</p> <p>An indictment foramisdemeanor, describing an offence at common law, but not within any statute,may be mamtai s tl, notwithstanding it concludes c against the statute in such cases made and provided as that may be rejected, as surplusage.-The^ouvt of 'Vppeals has no jurisdiction of any criminal or penal casein which imprisonment may be imposed. An indictment fur obstructing a highway, at common law, .is such a case--A writ of error in a cause where the Court of Appeals has no jurisdiction, will be quashed#</p>

<p>Indictment.</p> <p>Upon the trial as T^tn'nm Rambler,^ eviwas and is by reputation a bier,” is not admissible: hia acts, not his character, are to bo proved.— [Ante 402.)</p> <p>Evidence of a single instance of unlawful gaming, may go to the jury, upon ,the trial of one indicted as a common gambler, and, with other circumstances, e. g. that he displayed gaming implements &c., might warrant a conviction;— while proof of many instances of playing, accompanied with evidence that the accused pursued a lawful cal ling, and only played for pastime, inightnot.</p> <p>The facte which may be given in evidence against one indicted as a common gambler, are not merely those perpetrated within the county where the hill is found; it may be shown that he had kept a faro bank or gamingtable, or otherwise been guilty ofunlawful gaming, in other counties.</p>

<p>From the Circuit Court for Madison County.</p>

<p>From the Circuit Court for Fayette County.</p>

<p>From the Circuit Court for Owen Countt.</p>

<p>From the Circuit Court por Bré'ckinrid&e Countt,</p>

<p>From the Madison County Court.</p>

<p>From the Circuit Court for Scott County.</p>

<p>Case.</p> <p>Common carriers are accountable for the goods which they undertake to carry, unless the loss or damage is .the result ofinevitabieaccident, or the act of God.</p> <p>Those who nuiken business of transporting goods, for pay, from place to place, (by them selves or servants,) including draymen, ca'tmen, por< ters, drivers of ox-sleds — arecommoncar riers.</p>

<p>An agreed case questíon^whe! ther the appel- or free persons!</p> <p>Law of Penn. appeHee’s right to freedom, dep'ends.</p> <p>All perseas born in Penn, since the act of that state, for the gradual abolition ofslavery, took effect, in 1780, were born free. Thosef/i en inslaverythere, continued so. Children born afterwards,who but for the act wouldhavebeen slaves, became apprentices — with all the liabilities and immunities of white apprentices — bound to serve those to' wholnasslaves, theywouldhave belonged, until they attained 28 years of age : unless giose entitled to their services, as apprentices, abandoned them, when they were to be bound out, for the same term, by the overseers of the poor.</p> <p>Partus sequitur ventrera, is the law of Ken. No one bom here of a free woman, can ever be a slave. The birth right is determined by the lex loci. A woman bom ■of a slave, in Pa. since 7 0, though subject to apprenticeship till twenty eight years old, was born free.</p> <p>in ’lien, and J¡oíof theiuo" ther’s npprenqualificdiy free" The children of1“b¡)“dKen‘ ther, that was asJavemPeno. when their abolition act pas-®®d’ ,,1" no78^ manclpated by shives foMifeTn Ken. I Bibb, 615.</p> <p>A coloured per-so,n b°™ Í" who, hy the act abolishing sla™as prenticeship till may'bTheld'fó the likeserviee, term*here^but ’snpl 11 s|ave. !</p>

<p>From the Circuit Court for Madison County.</p>

<p>Chancery.</p> <p>statemfentofthe case-</p> <p>An entry — ‘ beginning at the ripper corner, next the river, of J P’s entry of 8400 acres, and to run par••allel with the river, then off at right angles, eastwardiy, for quantity” — the previous entry referred to, being — ‘ J P enters tyc. about two miles up the first branch above the 18 mile creek, be ginning ata tree marked J S' to run north #■<:.’ — is sufficiently definite, and good on its face. 'Pile notoriety of the stream at the date of the entry, being established, andthe proof justifying the conclusion that the tree was marked before the entry was made, is held to be valid.</p> <p>A tree — the beginning corner —being described in an entry as marked with certainletti rs— the omission of further description, as the species, size or exact position, is not fatal. If the description will enable a subsequent locator to find the object, by proper enqvirySrseoreh, it is sufficient. Such n description of objects in an entry, as will enable a subsequent locator to go to the place and find them, by the mere directions of the entry .without any further assistanceorenquirv, is not required-.</p> <p>If a deposition is contradictory of any other previous deposition of the same witness,,it destroys his credibility : but if the former deposition will admit of a construction notineonsistent with the latter, and the witness i» supported by the testimony of others, his deposition will have its influence.</p> <p>Proof that a locator went out, in the fall, to explore land,20 miles or more iffpin hie residence, and upon his return stated, -that he had made a location upon land, which he immediately entered in the surveyor’s office, with proof, that his initials, apparently cut months before, were seen the next spring, upon a tree at that place, authorizes the presump tion that the tree was thus marked before he made the entry.</p> <p>of16a party8'”!) .procure an or-show^haMi survey and pntent ure in conformity to the entry — there be mg no allegation of a-want of riot fintF^ie court deciding eutryVOr ridglÍT ex officio, orasoertainV<whether there was and to*wha”extent. This ct., remanding the causeihrfurther rectTGthat3'tt!e survey shall be ordered.</p>

<p>A nuncupative will — witnesses competent at the time the will was made, but interested when it was offered for record —question upon the admissibility of their testimony.</p> <p>An interested witness is not competent to prove that he had no interest when the facts to be established by him occurred. If he' was then disinterested, but became interested afterwards by his own voluntary ace, or the act of ¡mother, and is therefore not incompetent, it must be made to appear by testimony other than his CWn:</p> <p>A nuncupative will cannot be proved by one who, when called aa a witness, is interested in its being established — tho’ he did not acquire his interest till af ter the will was published. — If one who is entitled to a legacy Under a Will, dies, his heirs or devisees,whose portions will be enlarged by establishing it, are not competent to prove it — not withstanding he whose will they are to prove died first, they, at the time it was made, were disinterested.</p> <p>A bequest to a neMtoÜIaSwUl" that cannot be Wm^l^void11; andifheisenti incas/tbewUl is rejected, so much oithe portion as does not exceed the vidquest, is saved' S7hl§9 Que % —can this act as \o°embrace the witnesses wilIsTCIt does .not apply to -thosewho have /?o barest in tlle w¡]1 are called to they^r^otheí wise interested *n estdblishln£-</p>

<p>From the Circuit Court for Christian County.</p>

<p>From the Circuit Court por Scott County.</p>

<p>Covenant.</p> <p>Statementofthe fecte, and plead-</p> <p>A bond is executed,the object and condition of which, arc, to secure the respective rights of the several gees to make a release which obligees,as they shall be ascertained by a chan eery suit— as the forthcoming of slaves in which each one claims an interest: it is not competent for one of the obli- ¿ _ _ _ . shall aüect the rights of the others; and the release of one, who had no interest, or had transferred his interest, so that nothing was awarded to him by the decree, is void. A plea, to an action on the bond, setting up a release by such obligee, is a departure, and the issue, whether oflaw or fact, immaterial.</p> <p>Action upon a bond to several, conditioned that certain pioperty, involved in a suit in chancery, shall be produced, to abide the decree: plea that one of the obligees dismissed the suit, so far as hewas concerned, and obtained no decree, is bad. If there is no such decree as the declaration avers, issue should be taken no the averment</p> <p>A writing obligatory binds all who sign it, as obligors — as well those not named in the body, as those who are.</p> <p>Where the interest and canso ofaction,oftwo or more joint covenantees, is several and not joint, each may maintain his separate action bn thecovenant;— and if the several covenantees join in an action to enforce the separate right of one, the misjoinder is fatal, and the declaration bad on demurrer.</p>

<p>From the Circuit Court for Franklin County.</p>

<p>From the Circuit Court for Breckinrjdoe County.</p>

<p>From the Circuit Court pos Franklin County.</p>

<p>Chancery;</p> <p>Appeal and writ of error.</p> <p>Sale of § of a boat, mortgage or pledge of that share to secure the payment; suit on the mortgage and other claims on the boat, in Jefferson circuit ct., and other facts of the case.</p> <p>Tile boat libel-led at New Orleans ;' various claims, includi&g all Thoms’, brought in under the libel ; sale of the boat there,and distribution of the proceeds by orcerof court, and final decree between those claiming to be owners of tji.e boat.</p> <p>TJ ^ Q decree pleaded in this case, bn¿ disregarded; the» decree of the. conru^Tobtht0 _i4 tSespeedvelj.</p> <p>^Tudg’t, on a note, is confessed iu a county where neither party resides ; deft agrees that ex’on may be issued forthwith, and belevied on the boat in controversy, and that she may be sold without advertisement : upon these, and various other facts and circumstances recounted in the text, it is held, that the note was the result of a combination to defraud another owner of the boat, and that the plaintiff in thejudg’tis not to he considered as a bona fide creditor.</p> <p>There is no, law requiring a pledge to be recorded. Two persons areownersof a boat— both in possession; one being indebted to the other,giveshhn share, reciting íl!at Jie has pledged and creditor con’ tinues his postrolT^onsiterl ingthetransitocbaracte™°and uses of the subject of the lien, it is held, that the transaction is a pledge, and not such a mortgage as must he recorded to give it validity.</p> <p>'a bona fide ■'in<^*a°morwa«é "to secure his not ’ recorded, hut upon whiph bo has instituted a suit, in rem, will be 'preferred to an'other creditor, 'or a purchaser, 'who acquired a lien or purchas'ed, after thfe “coinmen cement ‘Of the mortgagee’s suitfor the suit giv'es a lien independent of the mortgage. The party purchasing, "or taking a lien, while the suit is pending, takes it cum onere, 'or subject to tiro coir.p’t’s claim: p. 4S1.</p> <p>One, of two ‘owners of a steam boat,flies a bill aguinstthe ‘other, to prevent him from ‘seilinghis share, to enforce a mortgage on it, and subject the boat to a reimbursement of his own advances, and the claims of other creditors:hecan maintain his suit for this object, and have a final settlement of all transactions connected with the joint ownership ; and the Us pendens gives the comP1»»'ant an equ| which he ’can-pot be divested, qnent levy or sale‘</p> <p>-q'he courts of j1’® U- States have an exclusive mnratim© Íen(H¡ÍCtl°n’¶j as the tide ebbs 'i"fose®hofñr^ nishsuppliés^-c foreign^orts or in a state where the owners do not reside, have HenS ’on the vessels, which they may enforce in a court of maratime (jurisdiction, and the decree binds all parties interested.</p> <p>A steam boat, having been lieral court, having maratime jurisdiction, m another state, and that court having directed a sale of the hute^tlie^ro" eeedsamongvawhTbecamepar ties, and estabwWchCth™boat was liable; and finaldecreefsetilingthe respective rights of the owners, claimants, and mortgagees, of the boat; the decree being pleaded in a suit in this state, this court presumes —-nothing appearing to the contrary — that that court had jurisdiction in rem, and of all the matters embraced by the decree; Sr holds it conclusive, finid, n.otwith standingthesuit here was previously 'commenced upon some of the same claims— post 484.</p> <p>Thaappearanca of parties will enable a court of maratime jurisdiction to pro ceed upon contracts relating to a vessel, tho’ the claims arc not such as to givejurisdictioa in rem.</p> <p>Whenever a vessel or boat is libelled, all parties having claims forwhich she . is liable, may intervene, <J- have decrees for their rightful shares of the proceeds.</p> <p>A part owner of about may keep it employed, if will not be accountable to the others, if it is lost or damaged in the usual trade.</p> <p>A party who-has instituted a suit to subject avessel or boat to sale, to satisfy demands to which she is, or can he made, liable, cannot translate the litigation, by send ing her to a foreign port, and there libelling iterhitnself.iiut,, as part owner, he may send her, in her accustomed trade, to a foreignport; and if she is. therelibeliedby another party, who may legally subject her to sale, the former may intervene, and claim his share of the proceeds; and —to prevent them from being distributed entirely to others — may bring inallhis claims upon the vessel or boat, and thus, in effect, transfer the jurisdiction, rendering his first suit nugatory, and subject to dismissal.</p>