Volume 33 — Kentucky Reports

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

<p>Statement of the case'</p> <p>Parties make a contract verbally; they attempt to reduce it to writing, disagree as to the form, and the attempt fails: yet, a jury may find, from their subsequent conduct, that they remained bound by the parpl agreement</p> <p>A collision of claims constitutes a sufficient consideration for an agreement of compromise:-a party, having agreed, by way of compromise, to abide the legislative action upon his rights, can not avail himself of the unconstitutionality of an act, that destroys his claim, to avoid the agreement.</p> <p>The Legislature grants a ferry privilege for five years. Within the five year's, they grant the same ferry privilege to another party; which latter grant the next Legislature repeals: the second grantee cannot rely upon the supposedunconstitutionality of the repealing act, against one claiming under the first grant; for if the repeal he invalid, as depriving him of a vested right, the grant to him must he equally so..</p> <p>A party hires a ferry for a term; at the expiration of which, it is rented to another tenant; hut the first, who claims grant, refuses to sun-enderpossession, and the new tenant agrees that til t™e right is de" termine!; thelataSumpshustfie former, for the tion^and recover without proof promise toPpay!</p>

<p>Statement of the case.</p> <p>A final decree reversed ^oTal’ tered, only by a of1 ^harTaturo1 ,. or, for fraud, by oill or petition; except in cases provided for by statute. A new bill, of which a former hill that has been dismissed, is made part, will not give the chancellor any power over tlu; former decree.</p> <p>The feet that a wasn¿[!Li'when the judgment in rendered!canafford no ground risdfctíoiíwlíffla in6 fato W&d might have been pleaded by, the howeverit might hnow iumltfter the judgment.</p> <p>Where a bill is filed for the purpose of procuring a change in a former decree; the proceedings made part of the new bill, the injunction reinstated, the cause ordered to be re-doclceted — it must be considered as an attempt to re-open the former decree; not a new suit.</p>

<p>Assumpsit.</p> <p>From the Circuit Court eor Mason County.</p>

<p>A party makes a fer 0f a siave t0 ^efeat Mss credjS) nevertheless, takfn and ?oW under execution, as his property; the fraudulent grantee sues the plaintiff in the execution, and recovers a judgment for damages, which he assigns over to the fraudulent grantorsheldthat the plaintiff in the execution may, in equity, obtain an injunction and set-off, to the amount of his execution against the judgment; but for the balance (the judgment being larger than the execution) he has no remedy, and his injunction, so far, must be dissolved with damages.</p> <p>Equity will not allow a decree for a new trial, upon the ground of the discovery of new testimony, when the testimony relates only to matters that were in issue on the former trial; nor unless it appears that there was no negligence in the preparation, or in applying for a new trial, at law.</p>

<p>Chancery.</p> <p>From the Circuit Court for Nicholas County.</p>

<p>Bill of sale of slaves,wilhwarranty, and a release of the warranty on a seperate paper, referring to “said negroes;” both executed at the same time: held that, together, they constitute the evidence of the contract— the release rendering the clause of warranty nugatory.</p> <p>A release is an executed contract, and must betmeter seal, to be valid as a release. An ex-ecutory contract (since thestatutfc of 1812) requires no seal.</p> <p>A writing purporting to be a “release,” is pre sumed to be tech nieally so; but that presumption may be rebutted bypositiveproef.</p> <p>r°ferJg¿ to, it is sufficient, One writing cannot be connected with another unless it referió it. But where there are words of reference to the subject matter, as “the said negroes,” though there be no description of the and proof aliwndi (consistent with the writo'^how that they were both simultaneously executed, and are part of the same contract.</p> <p>The terms “I, B E, release said D from any responsibility of said negroes,” construed to have the effect of nul- „ „ clause of warranty of taine^in tfebUt of sale,</p>

<p>Chancery.</p> <p>From the Circuit Court fur Rockcastle County.</p>

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

<p>Interest may be recovered on rent secured by covenant.</p> <p>Grounds for a new trial — held sufficient.</p>

<p>To decree against unknown heirs, without proof of publication, is erroneous; and so is a joint decree against them and a defendant before the court— notwithstanding his consent that the cause might he heard as to him alone*, for it must be reversed or affirmed, entire. Aseperate decree against him, in such ease might be good.</p>

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

<p>Chancery.</p> <p>From the Circuit Court eor Breckinridge County.</p>

<p>Against infants default!5 Unless dianZa'ñtem duly appointed and he^p^rs’, the judg’.t will be erroneous.</p> <p>against adminisare to^e levied’ first, of the as" the Tea^es’tate!' for baIa(¡7g A judgment to be levied oiboth at the sametimo, is ertoneous,</p>

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

<p>Upon an appeal to this court, security approved by the court below — in abond, to be executed in the office of its clerk — within a timefixedbythat court — is required (by the act of ’96;) without •which no appeal is effective.</p> <p>A bondsigned by a surety, whom the court has not approved, does not give effect to a granted appeal.</p> <p>A paper purporting to be an appeal bond, but not connected! with the case by any proper authentication of the clerk, will not be noticed by this court, #• need not be by any party.</p> <p>An appeal bond duly executed, but defective, is amendable — i. e. a new bond may be given, under the act of ’2d. But where no bond has been given, or only such a one as the court cannot recognise, Sf there is, of course, no existing appeal: the cause will be stricken from the docket. And in such case, no damages are given, as there are when an appeal is dismissed.</p>

<p>The terms used in a will, are, in general, to lie understood according to their popular, rather than their technichal import; but where it appears from the will itself, that the testator understood the tech nical import of the terms he employed, and evidently used them in some parts of the will, in their technical sense, theyshouldbe so understood wher ever oecuring in the same clause. Held, that a devisee has no claim under a residuary bequest to thslegatees— it being obvious from the whole will, that the testator understood the technical meaning of those terms, and probably intended to use them in that sense.</p>

<p>Chancert.</p> <p>From the Circuit Court for Mason Countt.</p>

<p>Betinue.</p> <p>From the Circuit Court eor Mason County.</p>

<p>'^*10 facts‘</p> <p>Decree of the Circuit Court.</p> <p>~ Vendor of land, held by an equitable title, (available without further act on his part,) has an implied lien for the purchase money due him, that may tie enforced, even against a remote assignee nf tV*/a fífli»</p> <p>Vendor of landholding an imphed lien, — by a new contract, changesthemode °f payment_ of part of the price, aud reserves for press^lienT this does not impair dther PmayllTe enforced.</p> <p>An assignee who paid the consideration for the assignment of a title bond, without notice of an assignors lien on the land, will no the affected by such lien.</p> <p>The assignee of a covenant for a conveyance has a right in equity, as against the covenantor, and also, aright purely legal, against the assignor. — ></p> <p>The right of an assignor of a hond for land, to enforce an implied lien for the consideration of the assignment, is merely equitable. And these are rights entirely distinct' — to which the rule as to equal equities will not apply. The statute of assignor ents(,Siai. Law, 151,) reserves no equity to assignors, though it makes all equities of obligors, accrued before notice of the assignment, available against assignees.</p> <p>^eaTsfthatheis a purchaser, for siderationfwifoout notice, as-¿en If proving the payment.</p> <p>“{uity^to affect a party aii^ubs’equent'pur chaser, for a val-t¡on with0ut notice> should be strong® conclus;ve. The proof °n P°.mt> deemedsufhcien.t jn this case.</p> <p>Interest on a sum to be paid in building, is to be computed--not from the date of the covenant, but from the time, when the sum so to be paid, became due.</p> <p>This court reversing a chancery cause, for an error in computing interest from a wrong date, remand it with directions, that the party have leave to show the true time, which does not appear in the record, by proof.</p> <p>Where one party is allowed to supply a defect of proof, in a cause reversed and remanded, the like privilege should ie extended to the other party.</p>

<p>pET. & Sum.</p> <p>From the Circuit Court for Jefferson Countv.</p>

<p>A party, may have a continuance and change of venue, for legal cause, at the appearance term provided the adverse party has “reasonable notice” of the application — theob ject of which seems to be, to •enable him to oppose the removal, or object to any county; and what is “rea sonable,” must depend on the cir cumstances of the case. An application made When the adverse party is present in court, is itself a sufficient notice to him.</p>

<p>From the Circuit Court eor Clarke Count?.</p>

<p>Questions to be decided.</p> <p>Instructions.</p> <p>The ancient tenancies at will are now tenancies from year to year — requiring six months notice to quit. But a tenant may, iy contract, still be strictly tenant at will — not entitled to the notice.</p> <p>Instructions that do not leave all the facts the evidence conduces to prove, to the jury, are erroneous.</p> <p>A purchaser who acquires the legal title during a tenancy, becomes the landlord, and may maintain a warrant of forcible detainer in hi» own name.— But—</p> <p>The proceeding by warrant of forcible entry §- detainer, is a proceeding purely legal; which cannot be maintained upon a mere right in equity™ -as a bond for a conveyance. The warrant, in such case, must be in the name of him who has the legal title.</p>

<p>Chan<sert.</p> <p>From the Circuit Court for Franklin Countt.</p>

<p>Indictment for pHiw "house- — do foctive.</p> <p>The penalty, by for heepbglftipt pling house, ‘unofkeepimia^'-em,-20o‘do1,^-j months — appnes only where the hence^'aT^nua<?®^ ^ not’ charge tlmt accused' was licensed to-keep a tavern, i^ad. Soako, II it fails to aver that the tippling- ^®®" months.</p> <p>The penalty, by for keepingsftfpP,ins Il0use— $50, in addition t0 $i0, imposed by a previous act — applies to a house without aaJ must charge that th® r,10Use.waa tavern.</p> <p>charge the speshowing, 'by'V yerment, not by ly, what statute^ has been viola-'; mayappearwhat fncm-red*138^” mpra. Every indictm’t must identify</p>

<p>Dkbt"</p> <p>From the Circuit Court eor Jessamine County.</p>

<p>Allegations, that f0lCm™a and lelieyes that ma;st) do not netence of the facts; aud.do not authorize any decree upon a bill fo* confessed.</p> <p>Comp’t alleges, ^dandVSxeves that one detenvent’ debtor, has a^ °n a shee, which he is informed is now due and owing: held, that the averment of being informed, is not a sufficient averment of the fact; nor the averment of a claim, a sufficient averment of actual indebtedness ; and the decree, against the garnishee, is reversed.</p>

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

<p>Case.</p> <p>From the Circuit Court for Pike County.</p>

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

<p>Trespass— As’It ¡[battery.</p> <p>From the Circuit Court for Jessamine County.</p>

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

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

<p>Detinue.</p> <p>From this Circuit Court for Nicholas County.</p>

<p>Facta?of the cane,</p> <p>The action, veidict ^ c‘</p> <p>Instructions,</p> <p>The proper time for a steamboat, or other vessel, to deliver specie to the consignee, is not limited to hanking hours —unless such is the special con- . tract or the established usage of the port — (which usage must be proved;) and an offer to deliver it at any time during the usual hours of business —reasonable regard being had to its safety, and the convenience of the consignee, is as good as one made in banking hours.</p> <p>An offer to depassennefs’1 baggage, made at a Secimed^dis«barges the mas-from^iabiuTy* as eommon camers, and if the freight still remains, 111 t*ieir custody they hold it as mere , bmjees, acc“lF' to the terms, ex-.'^^“"¡j'inient!</p> <p>An intention to clli"F' freight; ment for it, will ”e°tb of6 making the vessel liable property °ship-p«l, occurring t0 deliver it. in seaei'al> ,the 1¡a-bility of the master and owners, a? common carsoon as there has bp^rtU1];tytabto deliver theprop^Yhei/und'ertaking, if there is areadiness, tho’ no tender, or actual offer, to deliver it --and however it may happen, that the consignee lets it remain on board.</p> <p>When freight— specie or goods^ avessei,°afte<rdrit livered' anif the consignee has had a fair chance to receive and remove it, and the therebydtscharged as common property still remains on board, nlation for^reward to the master §-c. for the continued care ofit, they are loss, only in case of gross neglect, on their part. It they are to have a°cmiTinued° custody, they are dinary düigeucé f?r th® F®servaerty, andaré liable for ordinary onloursrln^n cases liable ac-express ^greement they make,</p>

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

<p>Incidental motions — as to set aside a judgm’t, are addressed to the discretion of the court where they are made; and this court will not reverso a decision on such a question, unless some abuse of the discretion is detected.</p> <p>No judg’tshould beset aside merely to allow a change of venue. When a party shows that a judgment is unjust, or irregluar, or that he has, andean probably prove, a cause of action, or good defence, and his failure to present it in due time, was caused by no fault or negligence on his pait, the judg’t may be opened; and then, for legal cause, the change of venue may be obtained. Suit by a bank, on a note for $ 1300, with this at the foot — “distd for $1033:”— held, t hat, in rendering judgment for the larger sum, there was no error.</p> <p>It is the custum here, for courts, and clerks, ex officio, to take notice of credits indorsed on obligations,andenter judgments as subject thereto; but it has never been decided that to omitit, would render the judg’t erroneous. And this court is not disposed to extend the practice to casesnot within the established usage.</p>

<p>Statement of tho case'</p> <p>The lease of a tenant is not forfeited by his mere claim to hold adversely to the landlord under whom he entered: attornmentto another, orsome other act of disclaimer, rmistappear, to work such forfeiture.</p> <p>A tenant who has stipulated in the lease,to surrender the possession, upon receiving another specified farm, is not bound to surrender upon a bare offer to put him into possession of the latter; still less, is he bound to surrender, when it appears that the landlord has par ted with, oren cumbered, his title, or right of possession in the proposed substi tute, so that the tenant would be liable to be ousted from that, before the expiration of his lease.</p>

<p>Statement of the case'</p> <p>PIeas*</p> <p>The complainant bm“havfn^obtamed a restrain-bond,1 a^cfndltion of which is, in effect, that if the debt shall bo lost in consequence of the order, tho obligors shall “pay the said $430:” the recovery upon the bond, is not limited to the bare sum so named in the condition; but may be for the amount of the debt enjoined, or so much as is lost, including principal and interest.</p> <p>The pniscipal question.</p> <p>^t^latalfflost his debt in consequence of defendant ’s restraining order,— a plea that tho debtor was insolvent when tho order was issued, is a sufficient answer.</p> <p>A plea that a debtor was in-solventwhenpro cess upon an at.chment bill, as served on him, and so the ".ebt not lost by e injunction— esents an immaterial issue— it is service on the credit- or, that prevents the collection of debt, and then the debtor may have been good.</p> <p>Where a defendant pleads facts which he might be estopped from pleading, if the plaintiff takes issue on the pleas, he waives the estoppel.</p> <p>An attachment and^may^be enjoined ^not to f^ds to the com plainant’s debt- or, b; injunction panted “according to the prayer of the hill;” the injunction bond, instead of pursuing the order, complainants have obtained a restraining order against P from paying over to O, the sum fyc; suit on the bond; breach assigned charges that O lost the debt which P owed him, in consequence of‘the injunction; plea, thatO was not'restrained from collecting the demand from P: an issue on this plea, waives the estoppel which the recital of the bond affords, and the plea presents a good defence to the action.</p> <p>Where there is $1000 due to a party, and he is enjoined by order on the bill of an attaching creditor, from collecting 400 dollars, and the condition ofthe injunction bond is, in effect, that if he loses his debt in consequence of the injunction, the obligees shall pay the damage: unless it appears that the credit- or collected, or might have collected the $600, and, but for the restraining order, could have collected the f400, or some part of it, also, — there is no breach of the condition— nor cause of action on the bond.</p>

<p>Conveyance ky certíficate^onfer acknowledgm’nt qLstionupon its sufficiency,</p> <p>Statute prescribing the mode in which a man #• wife may convey land; the mode in which the privy examination and acknowledgment of the wife may be taken, certified, and recorded, and effectual to convey any estate or interest that she may have in the land.</p> <p>To pass the title or interest of a feme covert Lnd, there SuLiaZcompiianoe with statute prescnbingthe mode of making the conyeyance: a literal compliance is jf °clrSficate 'thé deed was explained to of the certificate^ clearly imports that §he was privily examined* by a proper officer — that the efiher, and that she declared it was freely executed hy her, and that she did not Wish to retract, whatever the form the deed will be effectual. Post. The best form is that prepared and promulgated by the Clerk, under the sanction of this court.</p> <p>Upon a coiiVeyanc® by husband and wife, the clerk certifies the “fboth-'andthat “having examined the wife of , said N separaté and apart from her said husband, she declared that shfe relinquished her right df inheritance to the land, contained in this deed of her own free will and accord, without the threats or persuasion of her husband, and wishes not to be retracted,” Objected, that here is nó statement that her acknowledgment was made apart from her husband — nor that she acknowledged the signing and sealing — nor that the deed was shown and explained to her on privy examination. But held that, though the certificate does not show a literal compliance with the statute, it does exhibit the substance of every fact required to be certified ¡and recorded; and that the interest of the feme (a fee simple title) passed by the deed.</p>

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

<p>Chancery.</p> <p>From the Circuit Court eor Madison County.</p>

<p>Suit on a bill of exchange— second indorser against the drawer‘</p> <p>The facts of the case.</p> <p>Each party to a bill, when notified of its being protested, is allowed until the next day, to trans mit notice to those parties to whom he may resort.</p> <p>To charge the drawer of a bill or any indorser, there mustibe due; diligence used— not only by the plt’f, but by every party thro5 whom the notice is transmitted,— from the holder up to the party charged.</p> <p>to the drawer; route^may circuitous, and t^LÍransmhted, with due dilortTwilí biTsuff°bTtt0 th*3 draweí and all the indorsers to whom notice is sent. ,, Notice of the protest of a bill may be transmitted thro’ the several indorsers</p>

<p>Statement of the facts, aüu QU6Btion for decision.</p> <p>The powers of an executor, as conferred by the will,may begeneral, or they may be restricted to designated objects, Sf his appointment may be limited, or be without limitation, as to time. Wherever there is an acting executor, with pow ers not limited by the will, as to objects or time, the appointment of an administrator, or an adm’r de bonis non, is a nullity, and his acts are void.</p> <p>The clause of a will nominating an executor, runs thus: “I likewise appoint him my executor, to settle my business, to pay off all my debts and accounts whieh he may think just, though they may not prove them according to law: held, that the'executor so appointed has plenary powers, and that the appointment of an adm’r de bonis non, waa a nullity.</p>

<p>From the Circdit Court for Bath County.</p>

<p>Replevin.</p> <p>From the Circuit Court for Green Counts-.</p>

<p>spirit on_a his failure to pay ov® ba“k “"tes the value of the notes wj>en Jhe accrued (not the ?0““alam°unt) is all that can be recovered. The act of’27, to prevent the scaling of Bank notes collected by officers, applies to them only-notto their suretiesasto whom the common law ralee, as to judgments on their bonds, remain unchanged.</p>

<p>In a suit for a devastavit — plea plene administramt, and issue thereupon, found for the plaintiff,— the jury should ascertain, and the verdict must show the amount •of assets wasted, or unadministered; for beyond that, executors and administrators are exempt from liability, by statute.</p>

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

<p>Covenant.</p> <p>From the Circuit Court for Gallatin Countv.</p>

<p>The fact that complainant is not in possession of the land, will not give the chancellor jurisdiction, to decree damages for a breach of warranty of tille— when no fraud or mistake, no insuperable obstacle to the legal remedy, is alleged. The complainant must sue the party in possession, or enter upon the land, and if he fails in his suit, oris ousted, then pursue his legal remedy on the warranty.</p>

<p>Covenanttoconvey land — covthe covenantor safe m $200 to ■.bepaid^-ci/tcra, ■that these are and^dechrahori on the covenant anaverment]that •plaintiffgave, or rity^or was^rei vented by defendant.</p>

<p>Where, the only issue to bo tried, is upon an affirmative plea, and there is any evidence in support of it, the right to open and conclude the argument belongs to the defendant. But that right can not be derived from a sham plea, or’count,mtirely unsupported by proof.</p> <p>This court can not say that the court below erred, in overruling a claim to open and conclude, when the records fails to show, that there was any evidence in support of the plea or count on which the claim was founded.</p>

<p>Facts of the case.</p> <p>Question of law.</p> <p>The obligor in a note casually got possession of it, and refused to give it up; and the obligee brings trover as for an unlawful conversion: held, that defendant may prove, under the general issue,that the note was obtained from him by fraud,and may thus defeat the action</p> <p>Tho’ a party may be entitled to the possession ox a thing, he can not Iawfully^obtam force; and for so able1mtmapprol priate action;but the “iSTAS action is thereon-manner'in which the possession of the thing converted, was obtained, is not mate-ml.</p> <p>In trover, for the conversion of a note, any matter constituting, an available defence to a suit oils the note, may be-given in evidence under the general issue — except a release,, and such a defence as must be-pleaded on oath.</p>

<p>The act establishing the Bank of the Com’th is a public act,of which the court takes judicial notice — therefore,a dem’r to a plea, that the act is unconstitutional, admits no facts inconsistent with the charter.</p> <p>This Bank is a corporation, and its notes, like the notes of State banks generally, are issued upon its funds 8/ credit, — notuponthe credit of the State and are not “bills of credit,” within themeaning of those terms in the constitution, as defined by the tí. C. of Ü. S.</p> <p>The definition of “Bills of Credit” by the S. C. of U. S. — the usage of the States, longacquiesedin and decisions of former judges of this court — doubt ful as the several points may be in the minds of the present judges— are deemed conclusive on them: forbidding that they should now declare the charter unconstitutional, or debato the question.</p>

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

<p>A town ordinance provides ,!that when any person or persons shall join a fence to any person that has already, or shall hereafter, put up a fence, that the person joining fences with the other, shall be compelled to pay one half of the value ofthe fence that he joins to, as far as he joins the same” fye. The owner of one, of two adjoining lots, removes the old division fence, erects a better one in its place, and sues the owner of the adjoining lot, for half the cost: held, that the latter is not liable, in such a case'; for, according to the letter of the ordinance, (which this court construes strictly) the liability is imposed only where aparty, by his own act, takes advantage of a previously erected fence, by joining his own to it.</p>

<p>Tenant for life and remainder-man having sold and conveyed a tract of land jointly — the former is a necessary party to the bill of the latter,, for a rescission of the contract..</p> <p>Cause reversed for want of parties — compl’t to have leave to amend in that respect.</p>

<p>A plea of a prior suit pending for the same cause of action, is good in abatement; #• if the plea is true when it is filed, a dismission of the prior suit afterwards will not avail. Nor does the fact that deft had put in a plea in abatement to the prior suit, make any difference.</p> <p>Executor whose suit is abated upon a plea of a prior suit pending, is not liable for costs, when it appears he was suing on a contract, bona fide, and not with any wanton or vexations object.</p>

<p>Onepositive witness is sufficient to prove that a sale of land was the consideration of a bond, where an assignee of the bond requires the proof in a suit to rescind the contract §-c.</p> <p>A party canno^ in general be a witness for or againstaco-party: but there are some exceptions to this rule at law, and more in chancery. A defendant in chancery may be a witness against a a co-defendant, where he is necessarily a party, but will not be affected by the decree against hi3 co-defendant, #does not swear in favor of his own interest.</p>

<p>Assumpsit.</p> <p>From the Circuit Court for Garrard County.</p>

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

<p>Chancery.</p> <p>From the. Circuit Court for Cumberland County.</p>

<p>Chancery.</p> <p>From the Circuit Court eor Casey County.</p>

<p>cbseTmortoi^s the notes, if“not ™ed<no ^art^of the record; and the^iíl^of'onei as a^ note for not justify a decree, upon the bill taken pro confesso,ior 190 dollars. '</p> <p>There should be nothing left to the discretion of a ministerial officer unnecessarily. A decree for a sale by a commissioner should prescribe the manner in which it is to be made — at least, that it shall be public, and duly advertised. A commissioner is directed to sell mortgaged property (nothing further:) the decree is reversed.</p>

<p>Chancery.</p> <p>From the Circuit Court nor Russell County.</p>

<p>Assumpsit.</p> <p>From the Circuit Court eor Nelson County.</p>

<p>Statement of the case.</p> <p>Land devised to an executor, or of debts, is equisubject to^on!</p> <p>A mere charge upon land, created by will, for the payment of testator’s debts, makes the devisee or heir a trustee, and entitles the executor to the proceeds for the pay ment of debts — > by distribution, pro rata, in equity — and the land, or proceeds cannot be reached by an ex’on creditor, without the aid of the .'chancellor.</p> <p>'Wheresuchprop erty as is not assets in the hands of an executor, is, by will, made subject to a testator’s debts, it becomes a trust fund, of which the Chancellor has exclusive jurisdiction; one creditor can gain no advantage over the others by suit against the exec’or or heirs; <the estate will</p> <p>Darby’s JLd’r. not be liable to his execution; he must come in with the other creditors for an equal distribution. A renunciation by the devisee, Sr descent of the estate to the heirs,, does not change the rule; nor does the fact, that the execution creditor is a cestui que trust</p> <p>Land devised for payment of debts being levied on and sold, under ex’on against the heirs, fyc. an administrator with the will annexed may maintain a motion to quash the sale — as he has authority to sell the land— unless the chancellor orders a sale.</p> <p>The merits of a case are not, in general, considered, where there is a defect of parties; but it is sometimes done, where the counsel unite in requesting it.</p>

<p>Statement of the facts upon which both suits were founded.</p> <p>Bill of G. §- A. Roas vs. Clore, ex’r. Ifc.</p> <p>Answer.</p> <p>Bill of Clore, the executor, against G. and A. Ross.</p> <p>Answer Sr cross bill.</p> <p>Decrees of the Circuit Court.</p> <p>Failure of proof in support of Ross’ bill.</p> <p>A testator directs a sale o'f all his estate, and distribution of the proceeds. The husband of a distributee purchases some of the land,in the expectation, countenanced by the executor, that his note for the purchase money, and his wife’s share of the proceeds of her father’s estate,would be set off against each other. She afterwards obtains a divorce because of bad treatment from him, 8/- her share of her father’s estate is decreed to her, for alimony, and her husband is enjoined from collecting it. He thenfiles a bill for an injunction against the collection of his note for the land, and for a rescission of the contract:— but held, that, under such circumstances, he is entitled to no relief.— The executor, in such case, having acted in good faith, the surety in the note must abide the fate of his principal:— chancery cannot relieve him.</p> <p>Any arrangement between debtor and crealtor> wb\cb creas 6s the nslc of the surety, wltbout bls assent, will exonerate him; but wiTl°resultUoníy from some act nothftom*mere passiveness on any^act^^the principal debtor, There aremoá in which a surety j^demnity'without waiting the ft^emdbor — as ¿ybtpayi^§ lbe Up0n’ the pmicS b|J* flwia tim</p> <p>When an absolute powerto sell land is conferred upon executors,, by the will, the one who qualifies may make the sale.</p> <p>An office copy of a deed not recorded in due time,, is no proof of its due execution.</p> <p>Though' neither theoriginaVdeed, g-om aiegafwí ^^vnof duced and proved — the execution of the original, its use in former suits, hJpS ^and^tjJirty years possession under it, also proved — the title is deemed unquestionable_„„ _ dee seeking a rescission, must take. suotl a* a V</p> <p>SJ©'claim of'dower being asserted 35 years after the date of a deed, the presumption is that none exists.</p> <p>The decree upon an original bill having disposed of the subject matter of the cross bill, and defeated its object, the omission of a formal decree dismissing the cross bill» is not material.</p>

<p>Facts of the case, and decree In tlie Court below.</p> <p>. A suggestion on the part of the names^nd°residences of other sc^bedk^hebfll as. “unknown ground for Yrute tequirmgprocesg ^arn them1’&e. —it is not sufidismissing36 thh bil1-</p> <p>f the°rescission of a contract for the purchase oflandj ff the defendant he is then able to make the title, the rescission should be decreed. And though the time stipulated for making the title (as on payment of the purchase money) has not arrived, yet if the vendor has given a bond stating, untruly, that he held the legal and equitable title, such decree is proper. Whenever the vendee finds that the vendor cannot make the title, or cannoi give possession, he is entitled to relief, n</p> <p>'Upon a 'hill for the rescission of a land sale, the ■áecree must be according as the title appears at the hearing', and and though there may be a cross bill in the case, for perfecting the defendant’s title, anda state of pre paration showing that he is entitled to a decree by whichhe will obtain, and be able to make, the title: yet if he goes into trial upon the original bill before he obtains his decree and title upon his cross bill. there must be a rescission, for he is still (at the hearing) destitute of title.</p> <p>Where the complainant seeks a a specific execution — or where the defendant has a clear equity, time may be allowed him to complete his title; not where the bill is for a rescission, or where it appears that defendant made false representations of the state of his title.</p> <p>A rescission may be decreed when it appears that the contract of sale was champertous and void, though the bill was filed on other grounds, and both parties are in pari delicto as to that.</p> <p>sion is alone a sufficient ground, for the rescission of a contract for the Adverse posses-purchase of land</p> <p>The patties are 'to be placed in statu quo upon the rescission of a contract; but ■where this rule cannot be literally complied with, a substantial compliance may do: as where a party claiming a tract of land, sold a small part of it, on credit, and then the remainder to another purchaser; the latter wanting the whole, the vendor lets him have the notes of the first purchaser, who gives up his part; takes up his notes, and destroys them.— The vendor’s ti-tie proves bad, and the contract is rescinded: the notes cannot be restored; but the land (for which they were given) may be re-conveyed to the original vendor; and that is suf ficient.</p>

<p>Assumpsit..</p> <p>From the-Circuit Court eor Jessamine County.</p>

<p>The action,</p> <p>Objections to a weac¡^a by’wiUidrawing the demnner‘</p> <p>. The constituaots^wing^andlords prior liens remedy’ by dis-tr®^ujjjmits of</p> <p>Questions to be decided.</p> <p>©nr statute prohibiting the levy ■of executions on the goods 8fc. upon rented tenements, without payment of the years’ rent, is like the 8 Ann. and to be interpreted by the sanie ruéis</p> <p>A sale of chattels found on rented premises,, is tantamount to a removal, as regards the officer who levies upon them.</p> <p>Where an officer levies on and removes a tenant’s chattels without paying the rent due (for not exceeding X year,) the landlord has choice of two remedies: (1) by motion, for an order of court requiring the proceeds to be paid to him; by which he waives the tort, and affirms the sale: or (2) by an action for the tort; in which the measure of damages is the amount of rent due, if the goods were worth it; if not, their actualvalue, without regai-d to what they bro’t at the sheriff’s sale.</p> <p>An act of this-state, of 1811, restricted the lien of landlords, as given hy 8 Ann, and similaj laws, till then (1811) in force here; but the ex’on law of 1828, § 12, reenacted the 8 Ann; and now •the lien of the landlord extends to all goods and chattels whatsoever lying or being on the tenement — and is not restricted to the produceof afana or furniture of a town house.</p> <p>The notice of a landlord’s lien,to, an officer who is about to levy on the goods of the tenant, need not be in writing. If he is, in any way, apprised of the lien, and of the amount due, it is sufficient. And the fact that he was so apprised, maybeproved by circumstantial, or by direct, evidence.</p> <p>The property on which an execu tion is levied, is in the custody of the law, and is not, in that condition, subject to be taken by a distress for rent.</p>

<p>Statement of the case-</p> <p>None are parties to suits at law or in chancery, but there has-been service of process stractive1 °and those who have pearance^on tíié record. _ When as^to^vtepersons are included by the common commencement fifin^pleM^^ cthis° day came £ determined by return,0<and entries of appear-the record/^ °n</p> <p>Process against a corporation is to be served upon the mayor, president, or other head officer — unJess the charter directs otherwise Service on private corporators, is no service on tlie corporation.</p> <p>An action is incorporatmn-Dthe the process servshare-lmidersnamedintheretum; judgment against ‘the defendantsthis is no judgment against the corporation; and viewed as a judgment against the two share-holders, it is erroneous; and is no evidence of a debt against other share-holders; to them, at least, the original demand is open to every defence.</p> <p>A party recovers a judgment against a corporation, or some of its members after it is dissolved, and dies; the share-holders, or are ' non-resiany efféctsofthe corporation in du^nonlresident share-holders by oi- equ;ty may take jurisdiction judgment, sub-effects, 2 ‘no effects in *e the non-residents</p> <p>Where an exe„n estate, which does not belong estate sold, and levy and sale maybe quashed: cessity for an a^yeaI And° tho* relief, in such cauidersome^ckl cumstances — in the3 ju^i^ntpif nof void, is a^ho*1 submitted ^ not bind them in-^y ^coVporation of which they were members, is for far more than they could, in any mode, he made liable for, and has been returned satisfied, in whole or in part, by a sale of estate, levied on by mistake, when it did not belong to any defendant: it is held that the chancellor should not interfere, to relieve the plaintilf, as there is as much wrong in the judgnfont as there is in the proceedings on the execution. . . „........</p>

<p>Statement of the cuse'-</p> <p>An apprentice ®annot be bound by parol, nor without his consent.</p> <p>tho’ hemaybindhimsubject to abaster, may (.it is said) pleadmfanCy to a suit on the indenture.</p> <p>iíñ apprentice cannot be transferred from one master to another, without his own consent, and that also, of the father or guardian by whom he was bound. But, as between the new and the old master, the contract of transfer may be binding; and, it will be good as to all parties, if made with the consent of all the parties to the indenture of apprenticeship.</p> <p>A plea, of no consideration for the note sued on, that merely alleges, that it was given for the release, to an infant apprentice, of the unexpired term of his apprenticeship, is not sufficient.— For—</p> <p>Where an apprentice is bound by his own contract only, he maybe released in the same way. And there may be cases where the discharge of a regularly bound apprentice may be fit and proper, and yet the master be justly entitled to cornpensation, in lieu of his services for the unexpired, term.</p>

<p>It is the duty of a guardian to take care of, fy account for, his wards’ money— however derived; and he would therefore, (the court incline to think)be accountable, as guardian, for money received by him here, for their lands in another state, when le gaily sold. Whether his sureties would be liable for such funds— quere.</p> <p>In asuitby wards agfinBtftriff* ther’s executor, dian,1 fo^arf"acsh™ld be'ather0 arate account taken with each die iributee and ward</p>

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

<p>The facts and pleadings.</p> <p>The contract of an infant may be after'hels ofa™ (.21;) and any of tives -yof death, may, it wouldseem,confirm the contract by which he acquired it.</p> <p>An infant, over 18 years old,may make a valid will of personal estate; and if he directs his executor to pay his bonds,it amounts it is said, to a confirmation of them in Equity.</p> <p>An infant, of 18 years old,has full power (by statute) to devise slaves; and such devise, .taking effect, confirms the contract by which he acquired them. Otherwise, the executor, by pleading the testator’s infancy, might invalidate the contract, and thus divest thedevisee of his perfect legal right acquired by the will, as the slaves would revert to the vendor.</p> <p>Joint action n> gainst executor anddevisee; plea (testator’s infancy) overruled, as to the former, but au to the latter, erroneously sustained, but,as the plaintiff below does not complain of that error, and the executor cannot, judgment affnmed..</p>

<p>Parties #-c.</p> <p>Death of plaintiff’s lessor; motion for a rule» on his attorneys, to show who carries on the suit— overruled.</p> <p>Affidavit relied on as grounds for the rule.</p> <p>Where the lessor of the plaintiff is an infant, or no 11-resident, or has died pending the suit, the defendant may have a rule to stay proceedings till security for costs is given. So, also, where defendant does not know the lessor, and demands information as to I1Í3 residence Sfc. which is refused, or, being given, proves delusive. But these are privileges of defendant that may be waived; and, if claimed, grounds for the rule must be shown by affidavit.</p> <p>Where a defendant moved for a rule on plaintiff’s attorney, to show who was carrying on the ejectment, after the death of the lessor, and referred to an affidavit, which did not state that he did not know, but, on the contrary, :disclosed facts indicating clearly, that he did know for whom the suit was prosecuted, the motion was properly oyerruled.</p> <p>A sale of land, under an ex’on. maycomewithin the statute of frauds; if the purchase is made for the purpose of hindering, delaying or defrauding the creditors of the deft, whose land is sold, the sale is void as to all creditors and purchasers — pri- or or subsequent.</p>

<p>Statement of the ,ca3e'</p> <p>Marriage «nay be circumstances— (except in prosecutions ibr bigamy and actions for crim. con.) as from cohabitation, reputation and acknowledgment of the parties Sfc., and this general rule must apply to free persons of color, as well as to whites.</p> <p>The widow inherits the husband’s estate, when ho leaves no other kindred. Stat. Law, 561.</p> <p>Bastards, by the common law, have no inheritable blood. But, by a statute of Ky. (S. L. 565,) they are capable of inheriting and transmitting inheritances on the part of the mother.</p> <p>The mother does not succeed to the real estate, which an infant, dying without issue, derived from his father, if there be any brothers or sisters of the infant, or of his father, or descendants of any such brothers or sisters. (S. L. 562.) But when the infant leaves no such relations, the mother takes the estate.</p> <p>Where a Sheriff,, under an execution levied upon-land, sells more (when the tract or lot is susceptible of division), than is necessary to satisfy the execution, he exceeds his authority, and the sale is- void.</p> <p>A motion to-quash the sale,, by which the return may also be set aside, is the best remedy, in 6uch a case.</p> <p>A Sheriff levies-on land, Bells, unnecessarily, .the whole, which the plaintiff buys at more than the amount of the execution; another creditor of the: defendant„by bill in chancery, attaches the surplus in the purchaser’s hands* obtains a decree* and it is paid to him: it was contended. that, this, decree was aeon-firm ation of the sale; but not so held.</p> <p>The sale was void, and nothing short of n writing executed, by the defendant,, and valid under the statute of frauds, would give it validity.</p>

<p>The decisions of this Court,which would still be followed in precisely similar cases — have been, that where an agent signs his name, and adds* for his principal, to an obligation, drawn in terms agreeing, grammatically, with the name of the agent, as ‘Ipromise to pay fyc, —A B for C D,’ it must be taken as the obligation of A B to pay, for and on account of C D, binding on the agent, and not on the principal. But where the terms of the obligation agree with the name or style of the principal, and not with the name of the agent, as ‘ We promise to pay,’ —‘witness our hands; V. M. for N. B. C. Sr Co.’ it must be understood as the obligation of the principal---not of the agent; that he signs, but he doesnotpromise, for them.</p>

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

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

<p>Billa 8f answers, showing the bargain, and matter in dispute, between the parties.</p> <p>Bill dismissed If appeal.</p> <p>There should be no appointment of a receiver, or interim manage ment, under the chancellor, in a suit between part ners, in which there is no prayer for a dissolution; and, .a bill for an account, while the partnership continues, will not be sustained, without such prayer, in general; but in some cases it may.</p> <p>A court of equity may compel the specific execution of a partnership contract; and may restrain one partner from persisting in a course jeoparding the rights of the other, or depriving him of his due share in the direction of the business. t The terms of a partnership must be taken to be according to the deduction of law from the facts agreed in the pleadings, when there is no other proof. And— Where, what the partners, respectively, or either of them, put into the joint stock is unknown, or was of such a nature that the value cannot be estimated, the presumption is, that they are equal partners, who are to share alike in the profit and loss, and final division of the stock. As, where one furnishes a manuscript, and the other agrees to publish it — nothing else appear ing: the presump tion is, that the manuscript, and the printing fyc. were, in their estimation, of equal value, — and the books, or their proceeds, to be equally divided.</p> <p>contribute^cTSe joint stock in •unequal propor.tions, as where dollai-s^a-n/the ■other 500, — noini — the^hareof each, of the prostoclfat the aíí solution, will be what °lieContributed.</p> <p>Two partners di» agree as to their respective interests in the stock, of which one retains the exclusive control, under pretence that a certain amount of the proceeds is to be appropriated to his separate use, before any division takes place; the other — it appearing that their interests are equal —may have a decree for an account, and restraining orders, Ifc. to secure to him, his rightful share in the control and proceeds of the business.</p>

<p>Statement of the ca°e"</p> <p>Equity will consider any writing by which property is transferred, as a mortgage, rather than an absolute sale,, ifthe intent is doubtful.</p> <p>Whenever aconusury, parol evisjbieVshow'its tru® thatthere^wasa loan’ and.a con~ veyance of property to secure it, *kecitreated Was a mortgage or may be its lan- — Though a writing may purport upon its face to be an absolute, or a conditional, sale: if it was obtained by any fraudulent device, or upon a usurious contract, or was really intended as security for a loan; and any such facts are charged by bill in equity, and proved-and they may be proved by the defendant’s express admission, and will be taken as admitted, if he evade the charge, or only gives a general response to Specific allegations ——the writing will be treated as a mere mortgage, or evidence of a pledge.</p> <p>^®r®dfa®*s a¿® wi'thm the knowledge of a defendant in chancery, or, from circumstances, they mustbe presumed to he within his knowledge, and he answers by evasive or in general terms, they may be taken as confessed, against him. Thus, where a party contracted by an agent who was living with him, and who could, and did, consult him during the progress of the agreement, he is presumed to know all the facts and circumstances relating to it; and so far as they are charged, and not specifically denied by him, they are taken as true.</p> <p>Where a defendant in chancery admits the allegations of the bill, or puts in no answer, or, answering, fails to notice any material allegation — . proof contradicting the allegation thus left uncontroverted and not put in issue, ia utterly unavailing.</p> <p>A stipulation, in the sale of a slave, that the vendor might repurchase by returning the money with 12 per cent.interest,and a note at the foot of the bill of sale, that the slave should remain with the purchaser, held to be strong indications that the contract was a loan and pledge.</p> <p>Inadequacy of price, a circumstance indicating that a contract purporting to bo a conditional sale of is slave, was, in fact, only a pledge to secura a loan.</p>

<p>The old rule, in slander, that the words must be proved precisely as laid in the declaration, is obsolete; and now the action will be sustained by proof, that the defendant spoke words concerning the plaintiff, slanderous, in their natural and obvious meaning, 8f the same, in substance, as those, or some of those, stated in the declaration. e. g. the declaration charges, that '-the defendant said, that the pl’tf s'to'le hogs; the proof is, that he said he stole ahog; both phrases impute the crime of hog-stealing, and the variance is not fatal.</p>

<p>Administration of James Mitch-am’s estate, sale #c.</p> <p>Purchases made by Carter, an administrator, and John Mitchum.</p> <p>Suit by Harvie, by bill to enforce a sale, upon a debt of decedent, of $10,000, secured by deed of trust on land.— Purchase of that debt and the benefit of the suit, by Dudley and John Mitchum— the former being oneofthe adm’rs and a defendant. Proceedings and decree in that suit; and sale of thetrust estate to D. Jno. M.— for a little less than the debt, S/execution for the balance.</p> <p>Debts of Carter §-c. (ante) reckoned asCom’th’s money, and applied as a payment,at half their amount, on the balance due to D. and J. M. as assignees of Harvie.</p> <p>The bill in the present case, its allegations and objects.</p> <p>dei"’ts’ proof #o. Answers of the</p> <p>The main ques-onntheateffeetHof the purchase of by M.— oneofthembeing anadmmistiator.</p> <p>A trustee, ^’or, permitted to raise in himself an m-that of the party-*orrw^0™ra|^a the estate for his ¿¶? líe buys a debt against the forwhieh heaete, he can elairn no^remMeratioiT</p> <p>Where an ex’or or adm’r and a sti.anger unite cl-make a joint purchase of a debt due from the detogether upon the ®™¿^rorad*mr would occupy, if ^aaeal°the pu¿ chase: they can accountable for th®. amount of tu6ir Durchas6 and no more.</p> <p>A suit is institured against ad’rs, heirs Sf trustees; one of the ad’rsr in conjunction withanotherperson, buys up the debt. As assignee, he thus acquires the management of the-suit; and yet is appointed guardian ad litem for the heirs, Sf conducts the defence also; Sf such proceedings are had as are most convenient to himself. Under such-circumstances, it must be presumed, that the purchase of the debt was for the benefit of the estate; else the proceedings would be deemed fraudulent as to the infants Sfc. The purchasers can make no profit on their purchase: it enures to the benefit of the creditors and heirs. But — ■</p> <p>If, in such case,, land is subjected, to sale to satisfy the debt, and is-purchased by the purchasers of the debt — (who had: a right to subject it to sale for their indemnity) and no unfairness appears in the sale,, they can be held accountable only for the amount of their purchase, with interest,not for the increased value of the land at a subsequent period.</p> <p>Conclusion that the debts of C. #• others, for their purchases at the sale, were payable inCom’th’s notes — and recital ofcircumstances from which that conclusion is drawn.</p> <p>Adm’rs held accountable to h’rs for the value of Com’th’s money due the estate, with interest on that value, from the time when it became due and was realized by the adm’rs, in the way of set-off.</p>

<p>Covenant.</p> <p>From the Circuit Court for Washington County.</p>

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

<p>Statement of the case.</p> <p>ThecontraGt(s«pra) a chancing bargain— made with frank 'explanations on ■the part of the 'vendor, and imposing no responsibility, as So the title, upon .him.</p> <p>Fraud will vlti'ate a chancing ■bargain as well ■as any other.</p> <p>Where a vendor of land discloses his title and all facts known to him concerning it, and the purchaser takes it at his own risk, without recourse —expressions.of ■opinion by the vendor, during 'the negotiation, as to the goodness of his title, ■are no ground for ■aiescissien.</p> <p>A charge- in a> bill, that defendant “fraudulently misrepresented and concealed the nature; and goodnessiof the conflicting-, claims, and the condition of his. own claim,” is, too indefinite..</p> <p>To justify the re cissionof a contract,. upon the ground of fraudulent misrepresentation or concealment, it must be shown, that the vendor stated. as trae, what he-knew was not so, or fraudulently concealed some, oneormore facts within hisknowledge.</p> <p>A vendor represents that a spring is on the land he is selling; complainant charges that the spring is within the boundary of an adjoining tract, and so the representation is false and fraudulent; but it appears that, whether the spring is on the tract sold or not, will depend upon whether one or another of two points, shall be established as a corner of the adjoining tract — a debatable matter: defendant denying all fraud, and that he knew that the spring was on the adjoining tract, and no proof that he did, there can bo no rescission on that ground.</p>

<p>Statement of tha-case-</p> <p>By decree, upon petition, the estate of infant heirs is directed to he sold. After the decree, and before the sale, two of the infants, having become of age, sell and convey their respective interests — reciting the proceedings and decree, and stating that the purchasers were to take their places, and to have their proportions of the sale money. The commissioner afterwards sells the whole land — the previous sale by the two heirs being known to him, and the purchaser from them assenting to the sale. The deeds of the two heirs, so made, passed nothing in the land itself — hut only their right to shares of the proceeds of the com’r’s sale.— This rightpassed to the personal, representatives of their vendee, upon his death, 8/- his heirs were not necessary parties to a suit for its recovery.</p> <p>An executor or adm’r, failing in his suit, fairly brought, is not liable for costs.— Against an ex’r or adm’r deft, the same judgment or decree is to be given for costs, as is given for the demand sued upon.</p> <p>The Chancellor, in decreeing interest, should follow the practice in suits at law. Where the demand is of such a nature, that a judgment at law upon it would he for the debt with interest till paid, the decree may be to the same effect. Where the judgment at law would he for a sum in gross (as in assumpsit,) it is error to decree current interest.-</p>

<p>Ejectment.</p> <p>From the Circuit Court eor Madison County.</p>

<p>A party files his-hill to recover land,, and dies;. the suit is.revived< in the names of his heirs, and oneofthemdies,, hut no revivor as to him, nor does, it appear that his interestsurvived: a decree in the-case, in that state, is erroneous, for want of parties.</p> <p>To decree against infants for whom a guardian ad litem has been appointed, where there is neither answerfor them, nor proof of their having come of age, — is erroneous.</p> <p>A decree, in a cause, where it does not appear that the defendants have distinct andseparate interests, being erroneous as to. some of the defendants, .mustbe reversed in toto.. In a suitfor land, against defendants having an. equity only, the-grantee, or holder, of the- legal-title, is a proper, party.</p>

<p>A sheriff take3 the security in a replevin bond at his peril: if he accepts a surety who is insufficient when the bond is executed, he is liable; but not when the surety was then good, and fails, afterwards.</p> <p>A witness called to prove the sufficiency of sureties, havingstated that, at the date of the bond,, they owned estate exceeding its amount, adds, then he eonsid~ ered them good? this expression, in. connection with the fact stated, is more than a mere opinion of the witness-tantamount to stating that ha knew no reason why the sureties werenotgood ■ — and admissible evidence.</p>

<p>Appeal from a J. P.</p> <p>From the Circuit Court for Boone County.</p>

<p>Statement of the case.</p>

<p>An absolute dis-mission of a bill, when one of the defendants has never appeared, nor been summoned, is error: reasonable time should be allowed to bring all .parties before the court, and then, if it is not done, the bill should be dismissed, but without prejudice. This court, upon reversing a «ase for such error only, remands it with directions accordingly, and may require each party to pay his own costs here.</p> <p>When a compl’t dies, the suit can berevivedbybill of revivor only, unless the representative comes intocourt(which must appear by the record,) and, with the other party, consents to the revivor. An order stating merely that the suit is revived in the name of the executor or administrator, by consent of parties (when there does not appear to be but one party in court) is nugatory.</p> <p>A decree against an administrator complainant, for damages 8f costs de bonis propriis, is erroneous. No costs— not even of the estate of the decedent — can be given against an executor or administrator, who fails in his suit, unless he sued wantonly, or is guilty of some wilful default.</p>

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

<p>Claim and title of comp’t to tlie land in controversy, and facts •of his case.</p> <p>Answer of deft, and matter on which he relies to prevent complainant from asserting any superior claim to the land, against him.</p> <p>mon,cannot purverse claim to-exclusive ^benefit; stilHess can, pel hL^Venanu And, because of warranty, fmplied by law,, as between the parties to a partition, their relation to the title, remains the pm-tition^s before; so that parcel^can0*-not place himself in the toh^former co-tenants §• the tor.. One parcener, jpint tenant, or tenant in com-</p> <p>To every partition of land the law annexes an implied warranty, whether it is expressed in the deed or not. And tho’ this warranty is, in some respects limited, it extends to the whole land, and estops each partitioner from asserting any adverse claim to any parcel of the land allotted to another.</p> <p>A and B are tenants in common. B. sells his interest to C, by ex-ecutory contract. A and C agree upon a partition, and deeds of partition are accordingly made by A andB (holders of the legal title,) and then B conveys his part to C, in compliance with his previous executory</p> <p>contract: in equity, C shall be con* sidered as standing in B’s place precisely and in all respects — ■ subject to the same liability as warrantor to the former co-tenant A, against whom lie can set up no adverse claim to the land.</p> <p>Where one of purchases'aTadverse claim to ategfo”dthebenefitofboth;and, if thus a'cquh-eí his available, his co-equity, be made liable to him, for half the price, or for a due proporthTéxient^ffhe interference. The wh^herthe pur’chase be made partitión°rAnd— The co-tenant purchase 5<of the oonflictingclaim, should be allowed, and have time given him, to elect whether his whole purthe^interference shall be for the lave aúllen aon the land for the tributed 'by'his co-tenant.</p> <p>A co-tennnt'lravjng purchased a conflicting claim to the land, and being entitled to ■contribution from the estate of his deceased co tenant, the personal representatives of the latter should be parties to the suit.</p>

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

<p>Statement of the case.</p> <p>Any title wliich ■a defendant in an execution has to land, may be levied on and sold, even while another claimant has an adverse possession of it; for the champerty act does not apply to judicial sales. But the purchaser cannot sellitagain,while so held, for to a sale by him, the act does apply.</p> <p>Wherever a party is in possession of land that 'he claims, no matter by what -title or right, or whether any, the champerty act of 1824 protects him; and renders •a sale (not judicial) by any other •claimant, void.</p> <p>A tenant, or one who holds under an executory con tract, is estopped from controverting the title of him under whom lie entered. But the party who would avail himself of the estoppel,must show it.</p> <p>•‘Apurchase’(the nature of which is unexplained) -should be presumed to be— not an executory contract — but rather, a complete purchase, under which the possession is adverse to the vendor and ■.all the world.</p> <p>Whether a possession was adverse or amicable,. is a question of fact to be decided by a jury. The Judge errs when he gives peremptory instructions upon the fact assumed either way.</p>

<p>Chancery.,</p> <p>From the Circuit Court eor Mercer County.</p>

<p>Statement of the case-</p> <p>Where a plaintiff in an execution has it levied on an equity of redemption,he recognizes the mortgage as valid; and if he buys the equity at the sheriff’s sale,he takes the place of the mortgagor, who is estopped from attacking,as fraudulent, the mort gage.</p> <p>A judg’t creditor Mlorabfe^mortgage, levy on the it;°andiftherete a pending suit in may become a P?rty.> and assert his right, in the same suit.</p> <p>The holder of a» equity ofredemptionmaybuy the m?rtgaged prop-erty when it is sold under execution, and regardless of the mortgage; but his purchase will enure to the benefit of the whole title — to the mortgagee’s interest, as well as his own. He will thus hold the title acquired by the purchase, as a trustee; and if it be a superior title, it will give him a prior right to, and lien on, the property, to the amount of his purchase; and, in asserting that right, he may attack the mortgage, and show, that, it is so far, fraudulent. ’</p> <p>Where mortgaged property is sold absolutely, under execution, 8r the purchaser shows the mortgage to he fraudulent, and holds the property, a previous purchaser of the equity of redemption may, in general, be entitled to restitution of his purchase money from the mortgagor; but il the holder of the equity himself becomes the purchaser, no such right accrues to him-1Me supra.</p> <p>Slaves and other things are mortgaged. The equity of redemption in one of the slaves is sold under execution, $/■ boughtbythe execution creditor. Another ex’on is then levied, regardless of the mortgage, on the same slave, who is solid absolutely, and bought by the same purchaser. The mort gage is held to be fraudulent as to the creditor in the latter ex’on. As to the condition and rights of the purchaser,Hide supra. In a suit, in such case, between him and the mortgagee, the mortgagor should be a party ; all the mortgaged property should be sold, and the proceeds applied — first, to reimburse the purchaser for the amount of his last purchase — if that slave brings so much; then to pay off the mortgage (which is good as between the parties to it, and as to the purchaser of the equity, as a quasi party;) the balance,if any,to be divided between the mortgagor Sr the purchaser, as vendee of a part of the equity, according to their respective interests.</p>

<p>The covenant</p> <p>formed^Tverred by plaintiff.</p> <p>Jileas.</p> <p>Demurrers — unstained; judgment ■for plaintiff, and .question here.</p> <p>The writing sign^tra^tharjplT? has sold, and afoXf’t aTract of. land,_ §-c.; and raSo’nofsaidcovenant to convey t^'pay so much, m°»ey:here,i7te Vey is made the. derf’s^ovenant4” and the actual” condition precedent. But—</p> <p>Wheretheagree^i™1 mísftf'a certain decree, Sr the^ms/er, de£’t agrees to neyfthe'transfer is a condition-p</p> <p>Where two parties sign a covenant, by which one binds himself to pay money,or do some other act by a certain day; and the other binds himself to do some act on his part, without fixing any time at or before which he will do it; if the act to bedone by thelatter(who does not stipulate as to time) is of such anature that it cannot bedone by the time fixed for payment or performance by the other party,, or may be fairly postponed beyond that time— thecovenants are independent, and either party may maintain his action, for a breach by the other,with out averring performance on his part. But if the act to bedone,but for the performance of which no time is fixed,, is of such a nature that it may be done presently, or before thetime fixed forperformance by the other party, then the covenants aredependent, and the plaintiff must aver performance on his part..</p> <p>The transfer of a decree is a transitory act, and if no time is fixed for its performance, it must bo done presently, or in a reasonable time.</p> <p>'Where a covenant on the part of the plaintiff, forms a part only of the consideration of the defendant’s contract, and he has actually received a partial benefit, Sf a breach on the part of the plt’f, may be compensated for, in damages, plaintiff may maintain his action without averring performance on his part. But the reason of this rule is, that injustice might result from withholding from the plaintlif, all remedy on his covenant, when he has actually parted with some property, as a consideration for it. Therefore,the rule does not apply where the consideration ■ or “partial benefit” received,consisted of a covenant by plt’f, which remains unperformed.</p> <p>covenant» vey certain land, ^.trallsfel' f cer" def’t;andincon~ covenant* to ^on-vey, fy the transstipulate» that he will pay •plaintiff so much money, in so many months. No time being fixed for the'transfer — a transitory act, it is to be done presently, or in a convenient time. And as the plaintiff, to maintain an action for the money, must aver performance according to the agreement, on his part, an averment that he did transfer the decree (not as soon as it could be conveniently donel but on a certain day after the money was due, without averring that the- transfer was then accepted, is not sufficient. But — -</p> <p>Where a party has committed a •breach of contract,by a failure to perform within the time' stipulated,if the other party after-wards accepts the performance, he waves the breach in that respect.</p>

<p>■Chancery.</p> <p>From the Circuit Court for Warren County.</p>

<p>County Court» can allot dower,, only where the right to be endowed, is indisputable. They can pronounce na. judgment of law or fact, in such cases.</p> <p>The widow’s. right is consummated by the death of the husband ; the allot-merit is merely to ascertain the. quantity, and define the bounds. The heir may make a voluntary assignment of dower: so may any person who-is in possession of the land.</p> <p>County Courts, in allotting dower, actjudicially, so that appeals and writs of error lie upon their decisions; and, in general, no party should be affected by a judicialproceeding,, of which ho has not due notice; but an allotment of dower is a proceeding in rem, operating as general notice, and no other is necessary.</p> <p>The jurisdiction/ of the County Courts in dower, is special; and their records must show every fact required by the statute.</p> <p>The report of Com’rs appointed to allot dower must show that they selected a portion of the land; which they ascertained was one third of the whole, and defined its boundaries. — That they allotted “four acres around the house,” is too indefinite.</p> <p>Where the husband died seized of a ferry, the widow is to be endowed of one third of the profits, or have the use of it, one third ofthe time, alter nately. — An allotment of “one fifth of the ferry” — an incorporal hereditament, not devisable — is nugatory.</p>

<p>Bill, decree fyc</p> <p>Adm’rs, when authorized to sell the slaves, may sell them with general warranty, though they are not bound to incur any personal responsibility in the sale. In this case, where there was a sale with warranty, and the slave proving unsound, the administrators were held personally liable upon the warranty, but no charge of fraud or gross neglect was fixed upon them: it is held, that they may retain the sum recovered of them, out of the assets.</p> <p>Bill against ad’rs puts interrogatories touching the use of the estate in their hands— requiring them to say, whether they have used the funds or not. They fail to answer these interrogatories: held, that, because the bill does not charge the fact specifically, the silence of the defendants will not authorize a decree against them, for interest.</p> <p>Adm’rs may be charged with extra interest received by them upon funds of the estate, loaned; but proof of an agreement for extra interest, not actually received, will not authorize the charge. The services of an auditor, fyc. see the text.</p> <p>A decree, that adm’rs pay to heirs a gross sum, ‘■in such proportions as they are entitled to the ■same, under the will” — thus leaving judicial ques tions to the administrators, is erroneous. The Court should decide upon, and render a decree, for the amount ■of each share, which may be enforced by a separate execution.</p> <p>A testator having made advancements to his children, di■rects that they shall be made equal out of his ■estate: this is to 'be done by a division — first, of the estate left, then, of the interest or profits accrued upon it, in the same proportions. An equality produced by taking the aggregate oT principal and interest together, will not be in conformitytothe testator’s intention, nor equitable.</p>

<p>Statement ofthe ease‘</p> <p>The-holder of at jtTto^wo^joint' purchasers, who the patent for which, issues m vendor. One of by1Sdesi°gnated- boundaries ues^Thehnd" B. also, settles ^soo1,) Sehfiming under the other joint purchaser, and his claim interferes with H’s 500 acres, as laid off. Long a*"ter t*1? set**e_ ment of the parties, respectively, H files his bill to perfect his title, and recove1'.**16 interference fromB. Held that H’s purchase has been improperly located: if located tig*1*. ** would not include any of B’s claim. And, ifH is entitled to 500 acres out of the 1500, yet as B’s vendor purchased with the consent and at the instance of H, and B has been long in possession, he has a superior equity to the part he holds, and H cannot include it in his allotment.</p> <p>One who, knowing ail the facts material to Ms title to a tract ef land, advises another to buy it of an adverse claimant, should he estopped, in equity, from asserting a doubtful claim to it_ Equity, to avoid a joint tenancy, will give- effect to slight circumstances, showing that there never was any such tenancy, or that it lias been severed. But where there is no such circumstance, equity follows the law; and where one joint tenant died before the. jus accrescendi was abolished, in 1787,the other» or others, took the estate by survivorship.</p>

<p>Suit for freedom.</p> <p>Evidence; decision below, and questions here.</p> <p>The opinion of a witness as to the identity of an in-A witI,esa state¡ certain facts, and his opinion, that the peraon to (®- whole statement, lho’ 0Plm?n rn part, is admissibie.</p> <p>A person leaves a¡0f of hisdauahter, who holds until^he is'sold by the daughter, hez^ftha^ln the girl's suit for free-rations of thefa?s, t0 „the girl’srighttofreedom,made before *]j® the girl as his a^ersdy to are evidence ad^oraíysubsequent purchaser,</p> <p>A motion was made to exclude •evidence, as incompetent, and •overruled: a part of it being admissible, though a part was not, the decision is sustained.</p> <p>•It is a general rule, that quiet possession for 30 years (or even less) in the absence of countervailing circum■•stanccs, creates a presumption of title; butthis rule does not applyto the possession of a person held in slavery, because of the disability Incident to that condition. Prescription alone is not evidence— and at best, but a slight circum-stance, in aid of •other facts, to prove a person a ■slave. Videpost S>p. 387 — 9. j</p> <p>All persons of blood not less than, i African, are (in Va. and T&.y.)prima facie deemed slaves.; and, e converso, whites .and those less than i, African, are, prima facie, free. All negroes are deem ed slaves; all whites and Indians free, when, their color is the only evidence.</p> <p>The description pereoTof^colo* in his declaration Rie^andlTno'estoppdl. a^mtfor freedom, is per--the jmyAhathis ,c°]or may be escanse, the jury are to make their ©wn deductions from the inspection; the judge should not decide upon the color, and instruct,peremptorily, that it is prima facie evidence of freedom, or slavery. The instruction should he hypothetical — that, if the jury conclude upon their view, that the party is white, they must find for him, unless there is some other evidence ©f his being aslave; and', on the ether hand, if they find him colored (i ormore, African) they mast find against him — unless there is- other evidence of his freedom.</p> <p>The highest and the best evidence that can be given to a chancellor, or to a jury, is the evidence of his or their senses —as where, in a suit involving the freedom or slavery of a party, he stands identified before a jury, they can have no better evidence of his color.</p> <p>ly white, may A white person ofunmixedblood cannotbeaslave; but one apparent-have a taint of African blood, and be a slave; and evidence of such taint, is admissible, even where a jury, upon their view, would decide, that the person was white; and instructions, ■that if, on inspection, they believe him white, they must find him free, would be errroneous. They must consider the whole evidence.</p> <p>The fact, that a party held in bondage, and suing lor freedom, had admitted that she was a slave, is entitled to very little weight.' — ■ Vide supra.</p> <p>islheldln'servítude, there is no tations that will recohiS 10 dom: the general" act of limitation does not apply, because the trespass is continued till suit brought; that of iS08only applies where the party was once a slave,and to freedom by^the statute of Pennte in that act. Where a person</p> <p>be a slave. All born of mothers in slavery in the vank°fsTnce1tie year 17S0, were subject66to'10apprenticeship till their right to en-No one whose mother was lree at his birth, can tire freedom at 28, is not impaired by their being brought to this state before they attain that age.</p>

<p>Statement of the</p> <p>Where an adm’r ■or executor, has paid over the estate to distributees, without having satisfied all -of the decedent’s debts — chancery-may take jurisdiction, upon the bill of a creditor «of the estate, against the adm’r (for ex’or) — who is> ia fact= ® with the dis-^“^hf has funds of the es^adeére^may be rendered for ^ ^ei-XXfendants, accor^active * habilishau be done, a succession of voided.</p> <p>The act of 1824, to prevent the scaling of debts payable in Commonwealth’s or Ky. bank notes, does not apply where there is any other stipulation connected with the contract — as,in this case, where the receipt given for the notes (to be repaid) contains the terms on which a slave is pledged for the use and security of the loan.— The value of the notes when the obligation is due, is all that can ibe recovered in such cases.</p> <p>'Bill by a credit-tor of a decedent, against the .adm’r — who had distributed without paying the debt, and the Sieirs,-and a commissioner who lad funds of ¡the estate m ins hands — a decree against the heirs jointly is erro•neous; so if it ■gainst°the adm’r" it should be afendants!1 to be ■paid — 'first, by out ofthe'assets, and, by the com-the funds * in his hands; 2nd, by the heirs — each his due proporfn°“’the* amount oí his share re-the'adm^'out'S’ his ma estate, “aty ofsa ede_ vastavit..</p>

<p>The indictment Accepted a written challenge to fight, with deadly weapons, viz: with pistols — “which writing (it says) is as follows” — reciting a letter, which, without being more explicit in its object, requires “that ultimate arrangement customary under such circumstances;” and avers the acceptance oí “said challenge” by a letter, also recited in full: held, that the indictment is not sufficient: Without the correspondence, the charge would have been sufficient,- or with it, had there been an averment, that the parties intended and understood the letter as a challenge. Then the correspondence would have been evidence,and other proof would have been admissible, to show the intention.</p>

<p>Statement of the case.</p> <p>Interlocutory order and final decree of the Circuit Court.</p> <p>f©pinion"fhat ES. C. did not obtain any undue share of the profits of the estate while it was occupied by his mother; so the question of her right to dispose ■of the profits,un<der the wili, does •not arise.</p> <p>The executors of Henry Coleman had properly distributed his estate before this suit, and no ground of. complaintonthat: score. And— William had received more than, his share, and had, no cause to sue..</p> <p>if one tenant- in* “drerse"^"™ to-the land, the purco-tena^'also0' and he is bounddueproporüon'óf the purchase mo-the land" or part' ¡t> tis actually lost,, by an adverse title, and: th? tenants are-tenancy ceases,. ^¿buystheloS land,tbepurchase ^nefit" The joint right against their vvarrantor, may still* exist, matured by the eviction, antfunaffected by the-“^grchase’b^’</p> <p>Vendee after a. vietion.may purchase a paramount title for himself; but, before eviction, the vendor also takes thebenefitofsucb purchase,.</p> <p>A party filed’ a bill, on divers grounds; among the rest, for a partition of land —the only claim that he sustained, and which partition defendant was always willing to make* correctly; the bill was dismissed, with costs,except costs of partition merely, which were divided: decree approved.</p> <p>A bill may be dismissed when compl’t has failed to make out a case — tho’ there are persons interested who arenot before the Court.</p> <p>Land is willed to dhbn^h’a^they pay £100 to the uteian^^slost^y g¿ad^1^claima proportionate reduction of the cided— as com-pi^nayt, by an error m computing a share to ^Ued^i^anotherbranch of the espaaymentaofmOTe than the redue- ^and^some who are interested in not before the Court.</p> <p>infant heirs must be summoned.-chancery dies, ypUmat serving his infant heirs with process, a §ua''dia» ad k-fem ls appointed* who answers, y makes the answer a crossbill; on which there is a decree in favor of the infants and others: held, that the decree is erroneous, as the infants were not properly before the Court, though necessary parties, 0</p> <p>Decree for costs here.</p>

<p>Anote is made c^li^and assigned by an inscribe”e“J. Lees per M. Clark:” was ^n«/o^and Lees’ authority not beassignee is vested should the payee °f a n0‘® assi-a it, as the agent 0f another (who !“? “° “,1®1081, m ix,_) 3S i as** sign §-c,.’ J. L. would be estopPf^ that°the assignee was the and**"'the ^effect gai title,</p>

<p>Assumpsit lies to 'recover back the ■Consideration for the assignment of a bonder note— after due diligence, and a failure to collect it. And if the consideration. was paid in money, the recovery may be had, upon a general count,for money lent, laid out 8fz. to and for for the defendant.</p> <p>Where an assignment purports to be for value received, the presumptiion at this day, is, that the ‘value’ was paid jn money — not jn property.</p> <p>In a suit against an assignor, the note, with the indorsement, is the best evidence, of the assignment; but a record, con-taming copies of both, being in evidence without objection, a motion for a non-suit, was overruled and that decision is sustained</p> <p>A record ofa suit —assignee vs. obligoi---showing, that the bond had been discharged before "the assignment, is not evidence of that fact, in a suit upon the assignment, unless the assignor had notice of the suit against the 'obligor.</p>

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

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

<p>Chancery.</p> <p>From the Circuit Court eor Montgomery County.</p>

<p>Detinue.</p> <p>From the Circuit Court for Caldwell County.</p>

<p>Infant def’ts in chancery must be summoned: the appointment of a guardian ad litem before they are summoned, is irregular, and an answer by him, will not justify a decree ag’st them Bill against executors and devisees for an annuity to be raised (or the widow, from lands devised: the personal representatives o f one of the devisees who is dead, are necessary parties.</p>

<p>Suitonabuilding; contractt‘s a</p> <p>The pleadings;,</p> <p>Evidence.</p> <p>3 iry — tlieir verdict,andamotion (by def’t,) to set it aside.</p> <p>Question»,</p> <p>Opinion, upon vérSLT wa^not formorethanthe Th^price Tfthe job with interest,</p> <p>Receipts filed, as exhibits, with an answer, may be read, and, if not controverted by other evidence, will prove what they state — nothing else: agreement of counsel that they may be read merely, does not alter the case; and allegations, designed to give them an application, or explanation, not apparent upon their face, must be proved, to have that effect.</p> <p>A receipt for so many dolls. (the sort of money not stated) held to be proof of satisfaction ofonly the same number of dollars of the debt, tho’ it was payable in bank notes, then at 50 pr. ct. .discount.</p> <p>A receipt for a partial payment, and another* dated a year after, for the whol'e debt, held to be not conclusive proof of a double payment.</p> <p>Appeals in equity cases, are upon the matters of fact, as well as the matters of equity founded on the facts; Sf tho* a question of lact may have been referred to a jury, and a verdict returned in the court below, this court will look beyond the verdict, and decide according to their own views of the evidence.</p> <p>Where a party in chancery is entitled to damages —the amount of which does not appear — as where bad work or materials are put upon a building, contrary to contract, it may be referred to a jury to assess the da-_ mages, and their verdict,Mynjre the single question, will be entitled to much influence. But if the question is coupled with other matters, immaterial to the true issue, or calculated to mislead the jury, their finding will be entitled to no weight whatever.</p> <p>Upon a bill to ■subject a nonresident’s land to ■the payment of his“ debt, there should be no decree without a bond of indemnify. S. Law, 99.</p>

<p>Slander.</p> <p>From the Circuit Court eor Montgonery County.</p>

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

<p>nof^aimaiíT'íi bill to recover wavds^fterthey ere of age.</p> <p>¡andiln^achy cause,isupon the es'the^act*; and !t.1S, positively denied by an-swer, the uncorrobo rated testimony of a single witness, is not enough. Here, the deft answers, that he has paid ™¿has a reí ceiptforit; corn-andnchargraethat the receipt was signed, and left on the table, and fel1 ,inif hands, though he paid nothing:— held, that, tho’^ upon the bill and answer, the deft would have to prove the payment, to sustain his defence; yet, by the amended hill, charging the new fact, and answer denying it, the burden of proving it, is castupon comp’t\ — and tho’ the subscribing witness to the receipt, proves whatthe amendment alleges, as he is not corroborated, but rather the contrary, the evidence is not sufficient.</p>

<p>One‘work beast’ is exempt from ex’on (S.L. 641) provided,the owner is a bona fide housekeeper with a family; and if he has several liable to the levy, he may elect which shall be exempt. But if he has one not in the jurisdiction, tho’ subject to his control, and another in his possession,he cannot elect the latter, and thus defeat the levy as to both.</p>

<p>Action against: pleads ’non est fafum’ w.h.Ichl and he has judg’t; “u^r,t“¿eotSÍ. two defendants,., men^noVlIfy motion for one,, tiffwasentitledto. als0 against them: held, thatthejndgmentren* d“®d¿sisj”j0ía^ a joint action, undisposed of as two defendants, and the case still clrcuitfcom-t^o that no appeal or. pentw Squash.* ed.</p>

<p>Agreement, that pr0vem”nts,rent ^ shah be as-pp’f have judg’t for the land — deft for the amount of improvements— bytbe rents &c.</p> <p>judgment.</p> <p>A bill of exceptions, when made partoftherecord, requires no seal.</p> <p>The decision of a judge, upon a case submitted by agreement of parties {vide supra), is not an award,but ajudgment, or decree, which may be revised here.</p> <p>There is no fixed, rule, of universal application, for the liquidation pf improvements,#• rents and profits, in cases not within the occupant laws. In some, the tenant losing the land, is held accountable for rents from the time when he entered; in some, from the time when he had notice of the adverse claim, by the service of process; and in some, only from the rendition of judgment of eviction — each case depending on its own peculiar circumstances .</p> <p>A man sells a tract of land, and afterwards includes the same tract in a sale and deed to another. The tenant,holding under thefirst purchaser’s, title bond, is assured that he shall have the title, and persuaded to rest easy, until his vendor dies. He then brings suit for the title, and obtains a decree, but that decree is after-wards reversed; and the second purchaser,having lain by for many years,nowbrings his ejectment, #• recovers theland: held, that, under such circumstances, the rents and profits for which the tenant is accountable, as a set-off to the value of his improvements,shall commence at the date when his decree for a title was reversed.— And the improvements are,therefore, to be valued, as they would have been at that time,in theirthen dilapidated condition, — not at their cost or valué when new;</p> <p>In ejectment,^the UiTvalu? of the improvements f of the rents, shall be pl’tfhave jndg’t fortheland — deft for the amount pfovéínents6 exceed the rent;— Singly?ntplaintiff should recover jectmrat°bntthe costs of the other should bedivided</p>

<p>A^signoment of a circumstances relating to the assignment,andtho attempts of the assignee to collect :the -debt.</p> <p>Assignor as. as* signee: warrant, judgment andappeal ¡instructions as to diligence Sfc,</p> <p>Where the suit ■on an assigned note, must be in 'the Circuit Court, it must be bro’t "to the first term, -or the assignee will lose his re'Course;andaliko rule may apply in warrantcases, when thejusticos "have set days, a't 'regular intervals, for trying cases; but where they issue warrants at any time, and 'try them as soon as they are returned, (the most usual way,) the rule 3o osnot seem to be applicable; nor can any general rule, as to what would constitute due diligence, be laid down, for such cases. A delay of 24 days, in an ordinary case, 3s too long.</p> <p>An agreement or directions on the part of the assignor, as to the mode ofinducing the obligor to pay • — as by calling upon him, and repeatingthecall, if that course is likely to be successful — may jus tifiy the assignee in delaying a suit, and save his recourse. But, he must act in good faith and discreetly; and if the debt is lost by his agreement with the debtor to indulge him, or by careless - ness and disregard of the assignor’s interest, the loss will fall on the assignee. And—</p> <p>Where, the as.SJgnor requests the assignee to postpone thesuit. tingencies, as tó. wWch^here'"if some proof — the upon the Assignnient) must be whether the °delay was aceorderstandingofthe parties or not— assume that assignee, in such a. case, was bound tq sue immedi^tply, .was error.</p>

<p>Bastardy.</p> <p>From the Pike County Court.</p>

<p>All the defendants to a joint judgment must be parties to a writ of error co-ram vobis, to set it aside.</p> <p>A judgment vs. two cannot be set aside (by w. e. coram vobis) as to one, and left in force as to the other.</p> <p>A record cannot bo questioned, on a writ of error; if it states, that a party appeared and pleaded, it is conclusive as to that fact.</p> <p>Where there is an issue of fact, in a case upon a w. e. coram vobis, it must be tried; to render judg ment, in such a case, without trial or proof, is erroneous.</p>

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

<p>Appeal From a J. P.</p> <p>From the Circuit Court eor Fayette County.</p>

<p>A plea that the-was otoained°by fraud, misreprevin — is not supported by prooty had been the attorney of the defendantm certain suits, and had promised future attention to-them until they should’, be completed, upon which the note was given, and that half the amount had been paid, but plaintiff, being appointed a judge, failed' to render the premised services,- and defendant employed and paid other counsel'.</p> <p>instructions; given, are not in the record. But it is clear,, that the verdict, or the instructions — or both, must-have been wrong: the judgment therefore-reversed.</p>

<p>Debt.</p> <p>From the Circuit Court for Estill County.</p>

<p>Bef’t is sued, as sheriff, for taking insufficient security in a replevin bond; it appears, on the trial, that he was appointed a deputy, a few months before, that, as such, he took the bond, returned the execution: the presumption, from these facts, is, that he was a deputy, (not the principal;) but he may fortify that presumption by (consistent) parol proof — which it would be erroneous to reject, as the fact is material; for proofof acts doñeas deputy, would not support a declaration ag’nst him as principal sheriff.</p> <p>A principal sheriff is responsible for all the official acts of his deputies ; and for any nonfeasance, or for unintentional misfeasance (as for taking insufficient security,) he alone is liable —and no action can be maintained against the deputy — though for any voluntary wrong done by the deputy,while acting in his official sphere, he is personally liable, as for his personal act.</p> <p>An officer returns the first ex’on as deputy; and one on the replevin bond, as sheriff: there is nothing inconsistent in this; nor does the official description on the last, estop him from denying that he was sheriff,when the prior return was made.</p>

<p>The questions.</p> <p>Plea not filed but replied to, is" Sue taken, and a jury sworn to try theissues, tho’ there was- only. Pilé other issue: an order 'of filing the plea, made nunc pro tuna after the trial. Was proper; and cirres the errror-.</p> <p>A plea of justifientitle the^efendantto theopendmg^frgumelTC when he adduces port™? his ^ fence-</p> <p>This Court candamag^are^xcessive,when the contain the8 ev? denoe-</p> <p>T , . .. In certain actions oftrespass(asfor bnea.t™.|. ?,ave of of damages is not friab-uS^sthey are so excessive dic^rpassioVof prejudice.</p>

<p>Indictment.</p> <p>From the Circuit Court for Lewis County.</p>

<p>The act prescribings in chancery, ^bsednJ reets that, the for confessed, makghfu require the plaintiff to give ¡ngUsuch°Vuture order as may be madtf for restorthe estate or ^“^d^fendant" upon his appear! ^“^“bm^and a decree without crmLmis*1^’ *</p> <p>Where the agent ot a non-resident debtor has sold has not^eceived the money, the. E^madTaíefendant to an attach-the^on-resWent and his agent; an the agent has received, or soon, much*money as is^not^uffioient to justify adecúe against him,upon /mo.</p>

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

<p>A creditor had no moiUaw^gainst the devisee of his 'statute’of fraudulent devises, he tíon against* the heirs and devionethe°bonds and testator*63 °f the testator.</p> <p>The heirs were liable to the ex-scended^wheD, and only when, the obligation of the ancestor purported to bind them; and this liability extended to remote heirs, because the terms of the bond included them also.</p> <p>The statute gives the joint action against, the heirs and devisees, but does not, in express terms, include the devisees of heirs, or devisees: quere, ther efore,whether they are bound • — if so, they are notliabl ^jointly with surviving heirs or devisees ofthe testator; as to them, the action survives (by statute;) and to reach the heirs or devisees ofthe deceased devisee' (if they can be reachedat law,at all,) a separate action would be necessary.</p> <p>The heir of an heirmay be joined with surviving heirs, because he is the heir and representative of the propositus; and so may the executor of an executor — for a like reason.</p>

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

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

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

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

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

<p>j)EBT^</p> <p>From the Circuit Court eor Campbell County,</p>

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

<p>. One half of a lot is conveyed to a purchaser, by mistake, instead of the other— •eastwardly’ being written in the deed, instead of ‘westwardly:’— the mistake may be corrected by a decree that secures the rights of all parties— the court should see that a good title is made to the purchaser,for the half lot he bargained for.before he is compelled to relinquish' the half he holds; a decree that leaves that to be done, at a future day, in the country, is erroneous.</p> <p>A decree requiring that femes coverts, who are. not before the court, shall join in deeds to be made by the husbands,relinquishing their right of dower, is erroneous.</p> <p>Two men purchased one half of a lot — but, by mistake, the other half was conveyed to them. Upon a bill by ' the vendor, to have the error corrected, one consents, provided the west .half of the half actually purchased,is conveyed to him; .the other fails to answer: a decree allowing to one, in the division, this choice of parts, without the consent of the other, is erroneous.</p>

<p>SCIRE facias.</p> <p>From the Circuit Court for Boone County.</p>

<p>The action fyc.</p> <p>facts proved,</p> <p>■When 'the lines of a county have ¡been run by the public authority, those lines, until altered by a like authority, must beregarded as indicating the true boundaries of the •county, and respected ds such by public officers and private citizens.</p> <p>An act establishing a new county directs, that the.line shall be so< run as to leave W. Head in another county: the true construction does not require that the new county shall include every thing hut his dwelling: house; the curtilage, at least,, may be excluded with the house.</p> <p>In trespass, de bonis asportatis, the verdict is made up upon, two different incidents: (1) the. fact oft ailing— which is actionable, though the-plaintiff' sustains, no loss of property by it; and. which may beat-tended with circumstances more or Jess aggravated,and for which —there being no data by which the actual injury can be computed —the jury must assess damages, actual or vindictive, according to. their discretion— subject, only, to-the power of the Court to grant a new trial; and (2) the plaintiff’s actual loss of property —by being totally deprived of it; by its being injured; by expenses iu recovering it, §-c. the-value or amount of which is, so far, the criterion of damages. Hence, the measure of damages, in such cases, is not always the value of the property taken, with smart money; and-evidence, (of any facts which could not be specially pleaded,) is admissible in mitigation of damages — to show, that the property wa3 restored; the proceeds applied to tho plaintiff’s use; that he bought it in af an under-value SfC. The true measure of damages,, is the actual loss or injury sustained by the plaintiff, augmented by such smart money as the jury, in their unrestricted discretion, think proper to allow.</p> <p>A constable having an execution, against a defendant residing in an adjoiningcounty, passes over into that county, and there seizes defendant’s horse, which he takes to liis own county, andsells,and credits theexecution with the net proceeds: held, that the horse, though thus illegally taken and brought into constable’s c.oilkty by him, wlA there, was '¿ííf^Uñ.ílj.e execution and sixlc*. and that the constable being sued for the trespass, mayshow,m mitigation of damjnages, that the valueofthe horse or some part of it, went to pay the pltf’s debt, or to his use.</p>

<p>Statement of the case'</p> <p>The laws of the latb^toYnterest 811(3 usury, vary whether1 a’ note payable in anotha contract there m?(,e>is affected with usury or not, depends upt3le local law* which are not tothecounsTere* but are facts to proveriikeother facts; and with-no^omtLrecan decide that such rious. ISUSU"</p> <p>8 . charge denied by an-repeated in an ^“akenfor1confessed.</p> <p>A pafty complains, that a certain credit entered on his note, was for much 'less than he was entitled to; but it appears, that he had taken up 'that note, and given a new one for abalance still úlüe — an agreement and settlement as to the amount of the credit, is presumed — and ndt ■disturbed.</p> <p>Complainant al9eges, that he sold a horse to defendant at $70 —winch should 'have been credited on compPts units that he re-at "that price°but •says it was in •ether611 demand's held that, in the proofdf this aliegation in avoid-as claimed must %e allowed.</p>

<p>Whenever the judgment of a Justice exceeds £5 — whether for the plaintiff', or for a defendant who claims a balance after a set-off — the County Court can not take- cognizance of the appeal, even though the warrant was for lessthan£5,and it must go to the Circuit Court; where the trial may be had, and judgment rendered, foreither party, for whatever sum hemay show himself entitled to recover.</p>

<p>Record evidence after^decree’ which would pro gedtóeXtfs'ionj a bill of review ed! though^hé same matter was generally m issue in the suit. But, here, where the compl’ts attention was directed to the fact proved ed record, and he coit]Winíd^múrht have known “its hav^prodúced k before the decree gence — his bill of sustained*11110^6</p>

<p>Def’t agreed, to serve the plt’f 3 years, as an apprentice, and plt’f agreed to-teach him a trade,, and pay him a sum of money as this agreement was not in writing, nor to be performed within one year, it is within the statute of frauds,, and no action will lie upon it: but held that it is not void, and defendant having broken the contract, í and departed, without cause, long before his time was out, plt’f may maintain assurnp sit to recover a reasonable compensation for the vancesgmade?— , ,,. Though the plt’f may not prove £5 damages, he wil[ not > ut u,.- want of jurisdiction in the Cirouit Court» as the jurisdiction depends on th*. tlaim, i r-n the amount of the verdict.</p>

<p>Letter of Col. Toddf ^onsénu “’g stock ($5000.)</p> <p>Transfer of the stock — and 19 shares more.</p> <p>Letters of Col. Shelby to Judge Th. Todd, and to Mrs. C. S. Todd (Shelby’s daughter) concerning the purchase of C. S. Todd’shouseand lbrtia S°- FranIt'</p> <p>Conveyance (i) wifetoCokShelby, of the house (2) o'm”sfaves and some furni'tiire,'to the usé ofMrs. T. (the wife) and her children — of all which, they retain the possession.</p> <p>Conveyance (3) C. S.Todd and wife to John H. Todd, of several •parcels of real ‘estate, in trust) to indemnify Th. Todd for sundry specified liabilities incurred by him. as the surety o{ Charles.</p> <p>‘Conveyance (4) C. S. Todd to Thomas Todd— ofEsther(aslave) and her two children — by absolute bill of sale— vendor retaining the possession; and (S) subsequent mortgage —satae to same), of the same pro - perty) upon a different consul* oration, S/-C-.</p> <p>Conveyance (6) Thos. Chas, and John H. Todd and others to the Bank of Ky.— of sundry parcels ofreal estate (including those in 2nd conveyance, supra) — to secure the debt that Th. T. had assumed for Charles.</p> <p>Conveyance (7) by mortgage, C. S. T. and wife to Th. T. ofseveral lots in So. Frankfort, furniture, books 8f maps.</p> <p>Conveyance (8) Col. Shelby to Thos. Todd — of the house and lot (1) for $8000--$4000 of which Thos. T.returns, and also binds himself to convey the premises, to a trustee, for the use of the wife and children of C. S. T.</p> <p>Will of Col. Shelby — exonerating C. S. Todd from debts due the testator.</p> <p>Judge Th.Todd’s-, will.</p> <p>Remad; of Th.. T. “that- he had! got from Ch. a-considerable lift1 in money.” And: Conveyance (9) —the executrix ofTh.Todd,who was his principal devisee, to Evan Shelby, without any new consid-r eration, of most of the property which Ch. S. T. had conveyed to,, and for the use of his father — to-be1 held by E. Sin bust, for the’ wife and childrens of said Ch.</p> <p>Waller’s bill— object, ' ''</p> <p>^need’s, adm’r com e co - com [R ts —their grqpnd of qbjecf.amt’'</p> <p>The an$w,ers.</p> <p>Bill'dismissedí</p> <p>When.a créditos; asidethefraudalent conveyances qthercred?tora°of the same debtor, Interested In th| same debt, hays setting‘aside the deeds, may unite Ip the saiqe smt. '</p> <p>A party who goes, into ch’y, to set aside the conveyances made by his debtor, as fraudulent, must, in general, show, by a judg’t, that he is a bona fide creditor, and, by an ex’on 4*c. that he has tried the legal means to get' his debt. But where a surety has paid money for his principal, ch’y has jurisdiction of his case, and he may add a prayer to set aside any fraudulent conveyance that stands in his. way; and having these rights, he. may join in the same suit with o-. thers, whose object is to impeach the conveyances.</p> <p>Though two or more creditors, may unite in one suit, to set aside, the same fraudulent conveyance,. a proceeding to foreclose a mortgage, (a distinct/ matter,) though, it was made by the same debtor, cannot be joined^</p> <p>Continued possession by grant- or, after an absolute conveyance of real estate, is not,perse, proof of fraud — as such possession ofmovablepropertyis. The facts and circumstances connected with the conveyance (I) of the 'house and lot, by C. S. T. to Col. S. do not, upon the whole, show a sufficient ground to set aside that deed for fraud — which is Tiee/expresumed, hut may heinf erred from facts.</p> <p>A conveyance(2 ante, 504) by a grantor, who is in debt, totheuse of his wife and children, is, prima facie, void, as to his then creditors, and as to his subsequent creditors, who unite with them in a suit to set it aside. Butifsuch a deed be made, bona fide, upon a fair consideration paid, it is good: as where a man advances money to a son-in-law, and takes a conveyance of fa™pi-¡c{’) mthe use of his daughlaw’^wife^aud her children, it “ t0 a11 m‘</p> <p>Facts stated from tL^Shelbyfchd and receive a deed.</p> <p>to hislonSidaw an advancement that he intends ■for his daughter, upon condition, that the son-in-law conveys certain property, in trust for his wife’s use, and the conveyance will be valid; but if the money has been advanced without any such condition, it cannot be afterwards connected with, and made to uphold, as against ■the son-in-law’s creditors, a subsequent voluntary conveyance made by him, to his wife’s use.</p> <p>’Examination "of • the faets and circumstances tending to show what was, in fact, the '■ Sruc consideration of the deed of trust upon'the slaves and furniture, made by C. S. T. to Col. S. to use #c., and "conclusion in fawor of itswalidity.</p> <p>Decision, as to a. portion of the property conveyed.</p> <p>A son conveys, several estates to- and for the use of his father, as an indemnity ag’nst. suretyships; tbefather dies, and his ex’x, who is. his principal devisee, conveys the-estates to a trustee, for the use, of the wife and, children of the son, the grantor:, her conveyance», though, in form, absolute, and for tire entire estates» can pass no other or greater interest, than the testator held, viz. a lien for the reimbursement of the-advances made by him or by his e’xx; and the equity of redemption remainingto the son, may clearly be made liable for his. debts.</p> <p>Examinationtextending to the close of the opinion) of the facts bearing upon the conveyance (3, ante 505) made by Ch. S. Todd to J. H. Todd, trustee,to indemnify Th. Todd, as surety for Ch; and of that made by Th. Todd’s ex’x, to E. Shelby, as trustee Sf c. (9, ante507)and of the will of Th. Todd: and conclusion, that if Th. Todd had paid any thing on ch’s account, for which he had a lien on those estates, he had, by his will, exonerated Ch. from the obligation to reimburse him; and the ex’x having paid nothing for Ch. there was, therefore,no consideration to uphold those conveyances, as against the creditors of Ch, and that the estates thereby conveyed, are subject to the debts due to the comp’ts in this case.</p> <p>“$1000 advanced,” stated in a deed of trust, from a son to his father, as part of the consideration —presumed to be vancement1 and held, that,’ nei“1500hpa’id and advanced, at different times” — is sufficient, without further proof, as a Consideration, as against the son’s-creditors.</p> <p>Presumed, that the liability of a surety has ceased, ten years and more, after he signed the obligation, when a deed of trust was made for his indemnity; and. in proofofany payment having been rarety^nTdeecr j>f trustffist.n<y agaTnst the grantor’s creditors,</p> <p>, The consideragage’ from a son J,"9 faíhei'’ of' in lands since ™ort3aged” *>y the son, must be understood as a ment^that^hnd been made to the sufficientconsideration.</p> <p>an^teobtíbm of sale purports main^the possession of the ¡s void’as to hia' creditors; s-tho* the vendor after-wards mortgages them to the vendee, upon a new consideration, he cannot give validity to the void sale, by explanations of the transactions in the mortgage. The parties might agree to waive the sale, and substitute the mortgage; but the proceeding would be liable to suspicion — which would be increased by any inconsistencies or incongruities in the writings.</p> <p>A father who has paid, and expects to pay, money for a son, may determine to secure the amount to the son’s wife and children, Sr a mortgage or deed of trust, made by the son upon his property, for that object,willbegood; andif the father’s representative after his death, convey his in-that is the property, sub l?ct t0 redemPtion, (a mere lien,) to a trusoTtlufson’Twife and children, it of’its value: that is, for the amount paid, on the son’s account, by the father or his executrix. But no such payments are to be presumed, and, against the honaf.de creditors of the son, the conveyances will be valid, only so far as there is proof of payments.</p> <p>""A son executes mortgages, to secure his father, for advances and .’liabilities. The • father dies, and, •‘by a will which ' purports to devise his whole estate, but says nothing of any liens on his son’s .property, leaves a large estate to his 'widow and ’ two other children, arid says f the son is to have ”iio portion, because, the testator “had 'expended. ail'd a'dva'n- ' ced for his ' b'eh'e-;,fit — donsiderable sums:” in the absence of proof of any other advance, to which the will might have referred— held, that those alluded to in the will, must he deemed to be the same for which the mortgages were made, and that the effect of the will is to reléase the son’s liability for those advances, and leave the property subject to the claims of his creditois. And. the fact that the widow, to whom and whose children, the estate was devised, did,, after the testator’s death, convey all the mortgaged property to a trustee, for the use of the wife and children af the son, without any attempt to enforce any líen «pon it — ’ tends strongly to-, support this construction. of lbe,will..</p>

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

<p>Statement:ofthe 6ase'</p> <p>'DecreeoftheCir•cuit Court.</p> <p>Upon a bill for a sale of inortgagedslaves,topay the debt — a deft who stands in the place of a mortgagor, charges, by answer and cross bill, that the sum secured by the mortgage, was advanced, in depreciated bank paper; but the proof of that fact is slight, and there is no charge of intentional usury, fraud or mistake in the pleadings, andno facts proved from which either can be inferred: decree for the full sum in specie, sustained.</p> <p>A decree, on a bill to have slaves sold to pay the debt for which they were mortgaged„should as- ■ certain the- amount of inter-of t^loan^to" the day of the-ofC1the * hire*1 of the slaves while gee, and the'dif'fy611013 between those two sums, should be deducded toTthe°principal; the bal(orparty'standing in his place) red'ttfpay'^y a day certain; and. piy) tiie siave3. should be soldi ney ^c.</p>

<p>Case.</p> <p>Fiton the, Circuit Court for Fayette, County-</p>

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

<p>• own name;-but ’composlbo’atte .firms. Merchant-Signed ttToreTo/ them, the owner detto/fom’the other, that it is ■ ceeds subject to -acknowledgment sbinds the°conmadeitftlíenarné -ofanother1 house, same™ersomi.the Two mercantile houses do business — each in its</p> <p>Merchants in-den?& thaTThey have sold certain count °and'ha?e ■a balance of the ahe^wUÍ pay'to his order. He !his bill is protested. In a suit for. tbesupposed balance, it is competent for the def’ts to show, that they stated a balance in hand, and offered to pdy it over, by mistake — when they had, in fact, sold the goods on credit, at the risk of the owner, accoiding to the custom of the place, but never got the pay; and this state of case, made out to the satisfaction of the jury, will be a-good defence.</p>

<p>Chancery.</p> <p>From the Circuit Court for Nelson County.</p>

<p>Where a party holding a note for a snm to be paid in a certain event only, agrees to take,in lieu thereof, and receives, anoteforasmaller snm, payable absolutely, it is a good accord and satisfaction.</p> <p>A lawyer holds a client’s note fora contingent fee of $100; but learning that the client is insolvent, refuses to proceed without better security ; on which, another party interested gives him his own good note for $30, payable absolutely, as a fee in the same case. If the latter note was intended to he in/ lieu of the former, and the obligor in the 100 dol. note assented to the arrangement— enquiries to be left to the jury — he is discharged, by accord and satisfaction.</p> <p>Answers.</p>

<p>Chancery.</p> <p>From the Circuit Court eor Jeeferson County.</p>

<p>Statement of the case.</p> <p>The legal title to land held by a def’t in ex on, may be sold by the sheriff, tho’ the def’t may have previously sold it by executory contract.— Butthe condition of the ex’on purchaser will be the same as tho’ he had bought of the def’t himself; and if he had notice of the equity, he will take the title subjecttoit. JNor will he acquire any right to the money remaining due for the land, upon the executory contract,— the debtor will, still have theright to pay it to the holder of his obligation. Tho’— the Ch’r, upon a bill filed with that view, by either purchaser, the otheraswell as the def tandholderof the obligation being parties, might decree, that the first purchaser should pay pó the purchaser under ex’on, when he decrees that the latter should relinquish the land.</p> <p>But if the first purchaser is not restrained, and voluntarily pays to the holder of his obligation, (def’t in the execution) the money is beyond the reach oftheex’on purchaser.</p> <p>A sheriff’s deed has relation back to the time when the ex’on came to his hands, and overreaches any conveyance executed by the def’t posterior to that time, tho’ older than the sheriff’s deed. Ante 548’.</p>

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

<p>The action — by the holder of bill íbs. the acceptor —the pl’tf having paid the bill, to which he was ■no party, atma-turity, for, and at the request, of, ■the drawer; origin and progress ■ of the transaction ; positions of •the parties to the -bill, and facts and circumstan'Ces affecting-their eights.</p> <p>no^party bill, pays it, at, ^entf^’oT for the honor, of not^'looiT’to^a drawee, ^w.ho,. ' oration or effects* accepted for the drawer’s accommodation.</p> <p>A bill of exr change is negotiable till it is. paid, and each party, who- has-used due diligence, may resort to all or any of the preceding, parties, in case-of protest..</p> <p>Any holder- of'a hill may fill np the last, or any previous, blank indorsement. The acceptor, - i& liable to- any bona fide holder. cd in the’ regulas ^s^althoMhe acceptance was. dkawer’saccom-' modation, wjthout funds.</p> <p>A stranger may take up a bill for the honor of the parties, or any ofthem, and thus, acquire the rights of an indorsee —provided, he makes the payment after protest, causes anotarial act to be be made, showing why, and for whom, he made the payment,and gives immediate; notice to all parties to whom he intends to resort for indemnity.—</p> <p>But— Wbetheroi.ewho. pays the bill, at the request of a party, when, or before it is due* and without these-formalities, can fill up the indorsement, and make himself a party to the bill —or must rely exclusively upon, those for whom., he made the advance, and whom, he can charge up-, on common law principles — quere But held,that no one can thus acquire a right of' action, or demand, against any party sub~ sequent to Kim,.' for whom he? made the payment, and can* at most, only-take his place as to antecedent parties. So, in this case, as the drawer, ifhehad, taken up the bill*, would have had no claim on the-acceptor, who, accepted for his. accommodation, without funds* neither has the agent or friend of the drawer, who paid the bill for him — though informed that he. might rely on the acceptance for security — for the drawer could con fer upon his agent or friend no rights that he did not himself possess.</p>

<p>The proper place to record a mortgage of slaves or personal property, made before the act of IS20, Feb. IX, was the county in which themortgagorresided--without regard to the place where the property happened to be at the time, or the extent of the interest mortgaged, whether the entire estate,a term, or a remainder; and a bona fide mortgage recorded in the coun ty of the mortgag- or’s residence or in the General Court) within 8 months after its delivery, was, Sr is, valid, under the act of 1748, against creditors and subsequent purchasers: so held by a majority of the Court; but Judge Ewing thinks — that,under the act of X74S, a mortgage of slaves should be recordedin the county where the slaves are domiciled — especially where, as in this case,it is a reversionary right (after a life estate) that is mortgaged</p>

<p>An. attachment-bill must, allege that, the debtor is not in the state; without that-, or some equivalent allegation, a demurrer to the bill must be sustained.</p> <p>A note given by. one of the owners, of a boat,/<»;• himself and the others, literally binds him only,, and will have that effect only, in. chancery,.unin a chancery suit unless alleged inthe-pleadipgs. -</p> <p>The chancellor may have an issue tried by a. jury, and his order may permit oral testimony to. be adduced before them; but, regularly, all the-evidence should, be in the record-In this case,there was ,no allegation in the bill, to authorize extraneous proqf before the jury,, of a fact necessary to sustain the decree,, and no such proof in the record: decree, therefore, reversed.</p>

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

<p>A defendant has a right to amend his answer, subject to the general rules of practice, and the discretion of the Court. — The discovery of a mistake in the answer, or that it is liable to be misunderstood, is a good ground for amendment.</p> <p>The Court in ex»amining a chancery case, endeavors to get at the facts, and, with that view> Will take the evasions, and eveit. the omissions of a shuffling def’t, most strongly against him. But when the true state of fact is mademanifest by proof, the decree must be accordingly — tho’ the character of tho answer without proof, might justify the Court m going further against the def’t.</p> <p>A first answer might be understood as admitting, that def’t was accountable to complainant, for a larger sum than that which he states by an amended ans’r, is all that is due; the evidence does not show precisely what the true sum is, nor that it is stated in the amended answer: — held, that the latter should be taken though upon the first answer, taken by itself, defendant might be charg greater than that as the true sum, red with more.</p>

<p>Chancery.,</p> <p>From- ti-ie ' Circuit Court for Garrard County.</p>

<p>Where one who, though not a necessary party, is. made a def’t in chancery, is interested in the suit, and will he bound by the decree, and being a non-resident, is summoned by advertisement, — he should be permitted to file an answer at any time while the cause remains in the power of the court; for he would have a right to open the decree at any time within seven years.</p> <p>Where improvements are made upon land, by a bona fide occupant,who, losing the land, is refo^the^en^and profits — the esshopld b/ made -with reference to the land at the time when the occupant entered upon it; he is not t.o pay rent for improvements he has made him-he can only get pay according to then-deteriorated value.</p> <p>An occupantentitled to pay for the improvements which he found onthe land when he entered, as well as those which he made himself— subject, however, to a deduction for any waste fyc that may have happened during his occupancy.</p> <p>Improvements not at the cost, or their value when new, but at what they are worth when the valuation is made; the difference In the present price of the land, with them, and without them, is the true sum of their value'.</p>

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

<p>A declaration in Hdndiverscourds alleging a cerdue, as part of the debt; and it will not be material, if those several sums should mount to more 288^V)" than the sum stated in debt demanded,</p>

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

<p>Upon an application to ajudgefor a restraining order, upon a bill to attach the effects of an absent debtor, he may require as a condition, that bond be given to indemnify the defendants (tho ’ no such bond is required by the statute;) which should,regularly, provide for all defendants liable to be injured by the attachment; hut if some are omitted, it is no reason for discharging the order, or quasiring the bond. Another bond might he required upon a pro per case made out.</p> <p>This court will not reverse a case for a more irregularity from which no injury has resulted.</p> <p>A decree against the indorser of a hill,should he for the precise sunt for which he is liable, including interest upon it, up to the time of the decree — as a judgment at law would he; to decree current interest, accruing after the decree, is erroneous.</p>

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

<p>■A party makes a ¿lease for years of -a mill, — reserving the right -to ■sell it, and give ¡possession to the •¿purchaser,daring the term, upon • giving the lessee •such notice as to ■enable him to fulfil his mill contracts on hand, and paying him ■for repairs. The 'lessee covenants to surrender the possession to the ‘lessor,at anytime on demand, if he 'fail to paytherent ■or perfornj^any of his covenants.— No right, under this contract, is given the lessor to enter upon 'the premises,for any failure of the lessee to keep the covenants on his ■part; the only remedy, for such failure, is by action on the covenant. — -It is no answer to an action against the lessor, for entering and expelling the lessee, without the stipulated notice, and with■out paying him for the repairs— to plead, that he failed in a payment of rent, and did not make the repairs in a reasonable time As to therepairs, no time being fix* ed for their completioiijthelesseer had the whole: term for-it.</p>

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

<p>A decree to enforce amortgage, should show the amount of the debt.</p> <p>The mortgage should be an exhibit and part of the record in a suit for a foreclosure; otherwise it will not appear that the land described in the decree, and that in the mortgage are the same; and for want of that proof, the decree may be reversed*</p>

<p>Chancery.</p> <p>Prom the Circuit Court eor Bracken County.</p>

<p>Assumpsit»</p> <p>From the Circuit Court eor Scott County.</p>

<p>The county court of a county in which an orphan is actually domiciled, has jurisdiction to appoint a guardian for him.</p> <p>When award attains to 14 years: of age, he has 4 right to choose 4 guardian; Sr by the exercise of that right (in the county where he resides,) the existing guardian, will be superseded. But — the existing guardian is entitled to notice of any intended application to the county court for a new appointment, as he may controvert the fact, that the ward is 14 years old; and without such notice, the order superseding tbe guardian will not be valid.</p>

<p>Theproeeedings, decisions and orders of a county court, in removing or superseding one guardian and appointing another, may he revised in the court of appeals, and will be set aside and annulled, if the county court had not jurisdiction of the matter, or proceeded upon improper or insufficient grounds. Thecounty court might act in such case, upon their own view and knowledge, (’2 Bibb, 554,) and where that was the fact, their decision would, ¡prima, facie, be ■deemed right, Sf would not be disturbed.</p> <p>The executor has no prior right to the guardianship of the testator’s child; but, on the contrary, is a very improper person for that trust-. The mother is the natural guardian, and (when not -unwortliy) the most suitable person to be appointed statutory guardian.</p> <p>As soon as a guardian appointed by the county court, has given the required bond, the appointment is con summated, and cannot he revoked without notice to the guardian.</p>

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

<p>Recital of the' Jo™l^hiohngavé' rise to, and are this^uiL^ Wlth”</p> <p>Original bill in thia case — lor a discovery merely</p> <p>Answer fy cross in'’the' transa”8 tions above reClted'</p> <p>Answer to the cross bill.</p> <p>Decree of the circuit coui t.</p> <p>Upon a bill for a mere discovery, there can be no decree, but the answer may be made a cross bill, upon which relief may be granted.</p> <p>The various facts “nd t™mstan~ considered, and conclusion thereon, that C, the assignor, consented that B, the debt- or, should be discharged from prison, to which he had been committed for one of the debts assigned, and that the necessity of a suit upon the other, should be waved; that D, the assignee, agreed to wait the result of an effort by C, to enforce a mortgage that B had given him, to secure the assigned debts and for other purposes, but did not intend that C should be exonerated from his liability, as assignor: held, therefore, that though C may have been discharged from legal liability as assignor, by these proceedings — he remained bound, in equity, by force of the new agreements that must be implied from tho facts.</p> <p>The assignment {supra) was by ■two joint obligees; both would have been exonerated ■but for the new agreements: if . they were made by one, without 'the concurrence ■of the other,'the latter would not 'he bound thereby, but wouldreanain exonerated; if he concurred, he would be liable to contribution, to pay the «debt.</p> <p>An assignor finds "’that the payment ¡of the debt will ultimately devolve on him; he iappiiesto the asr signee, ’-who a'grees to allow ■him time to fore•closeamortgage, by which he is indemnified; reassigns the note to him, anti takes ‘his receipt, containing a promise to return or account for it. Afterwards,the note :is, for some pnr■pose (for what, is matter of dispute,) put into the hands of the ¡assignee (or his adm’r.) Heidi that chancery has jurisdiction to enforce'the liability of the assignor, upon the note and receipt, — because :it is doubtful whether any action could be maintained upon the covenant in the receipt, to account for the note, after the note had been delivered to the assignee, and was in his bands; because, after the re-assignment, the assignee could not sue the obligor in his •own name, nor maintain ,any.suit upon the assignment; and especially, because, the ■assignor’s liability, connected with the mortgage and agreement in-relation thereto,rendered 'him liable, m equity, for the full amount of the assigned debt — whereas, at law, the damages to be recovered,'might perhaps, be reduced toa nominal sum, by showing -the insolvency of the obligor in-the note receipted for. And-The fact that the assignor held a mortgage for the debt, and that the assignee agreed to indulge him, until the result of an attempt to make the money by that means, should appear, created a trust — peculiarly appropriate for equity jurisdiction.</p> <p>An assignor holds'a mortgage made' by the debtor, as-a security for the-assigned notes and other debts; and, having become liable upon his assignment, to the assignee,the latter agrees-to wait the result of an attempt to enforce the mortgage,before he presses-the assignor: held that, in equity, the assignee should be deemed entitled to priority of payment. a co-mortgagee;</p> <p>As the facts authorize the inference, that the assignee had agreed to allorv the assignor a reasonable time to make the money by a suit upon a mortgage given by thedebt- or, before tire assignor should be required to pay— the statute oflimitations did not begin to run against the assignee, and in favor of the assignor, until the money was made upon the mortgage, or the efforts to make it had proved unsuccessful. Ante 609.</p>

<p>Statement of the case></p> <p>the trial of tho motion in the coart below. Recital of evidan^ú núni'rl nn</p> <p>The commissioner,s report_am. higuous, irregnlar and erroneous.</p> <p>Question — whether, when property is ordered to he sold by a commissioner, to satisfy a decree in chancery, the attorney who obtained the decree can become the purchaser; and an argument against the validity of such purchases But doubts suggested, •whether the defendants in the decree in such case, can take advantage of such irregularity (if it be irregular,) and this case being made to turn upon another point, — the question is waived. '</p> <p>In England, the practice is to open the biddings at sales by a master in chancery, upon an offer of ten percent.advance, & a deposit of the money; " and this practice has been sanctioned; in New York," but never in Kentucky; and its is much to be thisbt case^tho-parties on whose was^qualbed8,— havingoíferednonot nwitMn'Vthorule. — But inadalways °indPnce9. theChancellor toear to sach apP1»»1»011*1</p> <p>Case in N. Y., of a sale set aside— without any offer of an advance — uponthe ground of surprise to the defendant, as to. the tiitie place-of sale, and'inadequacy of price..</p> <p>A commissioner-(the sheriff) appointed to carry into effect a decree for the sale of a mortgaged estate, conceived: Shat the estate would be subject to redemption, likelandsold under ex’on; and, with that view, selected two valuers, and had the estate valued; though this was done before, not at the time of, the sale, it- was known to one at least of the persons who attended the sale; and a great depression of the price-for which the estate sold, is presumed to have resulted from it;but neither thecotnp’t in the-suit, nor his attorney, nor the purchaser, participated in, or had any knowledge of it, until after sale: yet held, that, for this cause, the sale may be set aside, upon certain conditions : see next page.</p> <p>Sales under execution cannot be set aside for inadequacy off any irregularity, j¡J„*hetbat°Chapr pened without ^participation* of the purchaser )arit), the reme<ty is tty suit. upon the shefiff’s bond. The; ^ tj,se^°¡ff deed (without any action of the court upon it,) passes the title, commisfiónwuip pointed hy the « decree, is a riai^ervmt^or “gent,” whose proceedings are subject to the revision and correction of the court, and whose sale is not valid, until sanctioned by the court; that the estate is struck off, subject to this revising power and control, and the best bidder’s right to be considered a purchaser depends upon and awaits the sanction and confirmation of the court — which should be withheld whenever manifest injury has been done by hny act of the commissionev — though the. best bidder may be made to lose an advantageous speculation.</p> <p>conditions on which the sale may be set aside (ante, 621) the conduct of the complainant and of the purchaser being unexceptionable: to wit, that the defendants, plaintiffs in the motion., pay to the purChns6r his costs- and expenses in-cut-red,m making the purchase, Sr in resisting the motion to set it aside, to be assessed upon the nlíowld between lawyer and di-' complainant, iñ's costs incurred by the sale, and to both, their joint costs in this court-</p>