Volume 35 — Kentucky Reports

<p>The pleadings and exhibits.</p> <p>Decree of the court below, and appeal.</p> <p>An answer, which is specific and positive as to some minor facts, while, as to others, of more recent date and of more importance, it speaks in doubting, qualified terms, giving the respondent’s present impressions &c. is calculated to cast doubt and suspicion upon his whole defence.</p> <p>An ans’r in ch’y admits the execution of a note, the signature of which had been torn off, but alleges that the note had been paid: the onus probandi to show the payment, is upon the respondent.</p> <p>The fact, that the promisor’s name has been taken off a note, affords strong presumptive evidence of its payment—if the note, in that condition, is in his possession; but if the note remains in the possession of the payee, that fact repels the presumption.</p> <p>Circumstances in the character and condition of a witness; evasions in his deposition, and statements inconsistent with facts established in the case—the whole deemed sufficient to render his deposition unworthy of any credit.</p> <p>Statement of circumstances and facts, appearing in the record, from which a conclusion results, satisfactory to the court, that the note upon which the bill, in this case, is founded, had not been paid, altho’ the signature had been torn off, & the def’t alleges, as his impression, and one witness testifies, that it had been raid, in a specified manner.</p> <p>Evidence of the confessions of a party, detailed by a single witness, are but little to be relied upon, unless they are reasonable, or supported by circumstances. And — The testimony of a witness who merely states his understanding from what he had heard a party say, (not giving the words, or their substance,) is entitled to no weight—especially, if he appears to be “a willing witness” and disposed to make his statements in broad and general terms.</p>

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

<p>A judg’t recovered, and an order made at a subsequent term, “by consent of the parties,” as it reads—setting aside the judg't, and granting a new trial, “as per agreement of the parties by their attorneys filed”—but no further proceedings had for 13 years.</p> <p>Scire facias to revive the judg’t; the agreement & order pleaded in bar; replication, that the agreement was made without the authority or sanction of the plt’f, and the order in his absence, and without his authority, & without notice to him: demurrer, and questions upon the record and pleadings.</p> <p>The right of a court to control a judg’t, without the mutual consent of the parties, ceases at the end of the term at which it is rendered: but if they both appear and consent, it may be set aside at any time</p> <p>Held, that the order supra must be taken as conclusive evidence that, the parties appeared in person, (at a term subsequent to that at which the judg't was rendered,) and consented to a new trial, upon the terms filed by their counsel, & it was therefore, competent for the court to grant it. But, if the order should be understood as stating that they appeared by attorneys, its effects will be the same.</p> <p>The common law authority of an attorney ceases upon the rendition of the final judgment, except that, for a year and a day, he may enforce it. He cannot release damages; nor prosecute a scire facias without a new warrant; nor compromise his client’s debt; nor discharge a def’t from execution, without actual satisfaction; nor enter a retraxit. But—</p> <p>An attorney may confess judgment even before service of process; or may enter a remittitur damna before judg’t; or may submit a case to arbitration; or may bring a new suit after a nonsuit,</p> <p>After the rendition of a final judg’t, the attorneys by whom the suit was prosecuted and defended, have no authority resulting from their original employment, to consent to set it aside, or agree to a new trial; but a special power for that purpose, or a general power in relation to the judgment, may be conferred upon them, or upon other attorneys; and any consent or agreement, given or made, by an atto. duly authorized, in such case, will be effectually binding upon the client.</p> <p>Under the ancient com. law, a person cited to appear, could not appear by attorney; though he might have one to represent him after he had appeared. Afterwards, an appearance by atto. in any civil suit, was authorized by statute, and then a letter of atto. made part of the record was essential, as the judg’t might be reversed for want of it; but that was changed by the statutes of jeofails, and the practice of admitting attorneys without written authority has long prevailed; and now, whenever a responsible attorney of a court, appears as the representative of a party, he is received as such, without any special enquiry as to his authority. And, it has been decided in England and in several of the U. States, that want of authority in the attorney who appeared, is not sufficient cause for setting aside judg’t, if the attorney is able to indemnify the injured party.</p> <p>Judicial acts and records must be accredited, and, as no court should permit any one who is not duly authorized, to appear as the alto, of a suitor, when the record states, that a party appeared by his attorney, the judicial presumption is, that the court decided, that the authority was sufficient. And, query—whether when such a statement is made in a record, in consequence of the appearance of a pretended attorney, who had no authority, the injured party can, in any way, escape the effect of the judg’t, or can obtain any other redress than an action against the atto. will afford. But—</p> <p>Held, where the record states, that, “by consent of the parties,” a judg't of a former term is set aside, and a new trial granted, “as per agreement of the parties by their attorneys filed" - the defendant may plead and rely upon the order as a bar to a scire facias to revive the original judg’t, and the plt’f will be estopped by the record, from replying, that the order was made without his consent, authority, or sanction.</p>

<p>Statement of the case.</p> <p>Prohibition is an existing legal remedy in this state.</p> <p>As, by the com. law, (still in force here,) all superior courts are entitled to a general superintendence over their subordinate tribunals—the circuit courts have authority to issue writs, and render judg’ts, of prohibition, to restrain those tribunals and magistrates from whose judg’ts & orders appeals lie to the circuit courts, from exercising any arrogated jurisdiction.</p> <p>The court of appeals—if it would proceed by prohibition in any case—would do so only whore the prohibition was to operate on a court whose proceedings it might revise in one of the ordinary modes: not where it was to restrain a J. P.</p> <p>Prohibition lies to prevent a court from proceeding in, or exercising control over, a case of which it has no jurisdiction; and it is immaterial whether the case is one which belongs to a higher tribunal, or a matter of which no court can take cognizance,</p> <p>It does not lie to prevent any tribunal from deciding erroneously, or from enforcing an erroneous judg’t; but only where it assumes jurisdiction of a matter which it has no light to try.</p> <p>Constitutional queries suggested, which might arrise upon the act of 1836, prohibiting owners and lessees of ferries established on the Indiana side of the Ohio, from ferrying any person or thing from Jefferson county in this State unless by agreement with the owner of a ferry on this side—but as to which no opinion is required or intimated; inasmuch, as the penalty ($50,) is within the general jurisdiction of a justice of the peace, who must decide all the questions in any case before him — including any that may arise upon the constitutionality of a Jaw that he is called upon to administer; and, the constitutionality of the act in question, must, therefore, be decided by a justice, in the first instance. For—</p> <p>A contract, to pay a statutory penalty, is implied by law, and may be enforced— when no different exclusive mode is provided—by any court or magistrate that has jurisdiction of other debts of like amount, between the same parties. But—</p> <p>An unconstitutional act, being void, can confer consequently, a magistrate could not take cognizance of an action for a penalty, if the right to do so, depended exclusively upon the statute imposing it. But if the jurisdiction exists independent of the statute, the fact that, the def't does not owe the debt — as he does not, if the statute is void- will not oust the jurisdiction, nor transfer it to another tribunal; the magistrate must decide that, as well as other questions raised — subject to correction by appeal to the circuit court: his judgment, either way, will be valid until it is reversed. A judgment in favor of the plaintiff would not be void merely because it was founded upon a void claim; though it would certainly be erroneous. Consequently, the count could not upon the ground of the unconstitutionality of the statute, interpose by writ of prohibition, to prevent the magistrate from proceeding.</p> <p>Several different warrants are issued by a J. P. to recover penalties for the violation of a statute, each against the same several def’ts: they may unite in a joint declaration in prohibition, to prevent further proceedings, before or after judgment, by the justice: and he may be made a co-def’t with the plt’f in the warrants.</p> <p>In prohibition, if it appears on the face of the proceedings, that the inferior tribunal could not take jurisdiction, no averment, that a plea to the jurisdiction was pleaded & overruled, is necessary; but it is, if consent, waiver of objection, or default, would give the jurisdiction.</p> <p>The old form of proceeding in prohibition— by a qui tam dec’n.</p> <p>The modern practice in suits for prohibition, in pursuance of which, the dec’n need not be, and should not be, qui tam. And, if such a clause was proper, the omission of it, would be but matter of form, and, in the state, no ground for demurrer.</p> <p>Mandate, for judgment of constitution.</p>

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

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

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

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

<p>Statement of the case.</p> <p>Decree, &c.</p> <p>Several def’ts, necessary parties, are not summoned: yet this court, perceiving that no essential change can be made in the case, consent, at the request of the parties, to give an opinion upon the merits—contrary to the usual practice.</p> <p>An enquiry of fact in chancery, was referred to a jury: as neither the evidence, nor any motion to set the verdict aside, is found in the record, the presumption here is in favor of the verdict, and it must be sustained.</p> <p>Land is sold by executory contract; a stranger recovers it, but is held liable for improvements—the amount of which is decreed to the vendor, as holder of the title: the purchaser is entitled to the benefit of that decree; and, as, in equity, he should be placed upon the same footing as tho’ the deed had been made, which would have given him a legal fight to go upon the remote warrantors, as the covenants run with tho land,—he is also, entitled to the benefit of any recourse which his vendor can have, upon covenants of warranty of the same land; and these rights he may enforce by bill in equity-especially, when his vendor is insolvent.</p> <p>An assignee takes the assignment subject to all equities of which he has notice Among mere equities the elder prevails.</p> <p>The possession of land by one party, is sufficient to put all others upon enquiry as to equities affecting the title, and operates as notice.</p> <p>The transfer of what is not asassignable by law passes only an equity, &c.</p> <p>A Court of Eq. will not decree current interest, when it could not be recovered at law.</p> <p>A purchaser of land, by executory contracts, loses it by the recovery of a stranger, and his vendor, to whom he has paid the consideration, being insolvent, he files a bill to secure the benefit of a decree obtained by the vendor for improvement, and the vendor's recourse upon his warrantors; the cause being thus in possession of the ch'r, a final decree against the purchaser in personam, for an unsatisfied balance, was proper.</p>

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

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

<p>Trespass, q. c. f. and plea of liberum, and the titles of the parties.</p> <p>Defendants, posession.</p> <p>Record offered as evidence by plt’f, and which being rejected, he fails.</p> <p>Objections to the record.</p> <p>A tenant is held to strict fidelity to his landlord: he cannot change the relation in which he stands to him, by any contract with, or any attornment to, an adversary claimant. Nor would the title of, the landlord be affected by a recovery of the land in consequence of fraud and collusion by the tenant. But—</p> <p>An eject having been brought upon a title superior to that of the landlord of the tenants in possession, (who were his sons) they confessed the judgment, with a reservation of equity: held, that the record of that recovery does not per se show any fraud or collusion on the part of the tenants, or that their landlord was not bound by the judgment.</p> <p>It was incumbent on him to assert the equity, if any in fact existed; and if he failed to do so, or to protect his tenants, it was lawful for them, while the judg’t remained in force, to take shelter under that claim, without waiting to be turned out by the actual execution of process upon the judgment.</p> <p>One of several tenants, in such case, purchasing from the adversary claimant, would not be bound by any allegiance to his late landlord, to restrict his purchase to his own tenement. He has the same right to purchase to any extent, including the places of other tenants, that a stranger would have.</p> <p>A recovery in inject, cannot extend to the possession of a tenant who was not served with process. A statement in a record that 'the parties appeared,' applies only to those who had been served with process.</p> <p>A tenant in possession against whom a jud't of eviction has been rendered, may purchase in the adverse claim or take shelter under it, at any time while the judg't remains in force; but not after the demise in the dec’n has expired. When that occurs—the possession having remained undisturbed in the mean time— the tenant’s allegiance to the landlord under whom he entered, revives, and he can do no act inconsistent with it. The possession, in that case, is still that of tho landlord—in whose favor the statute of limitations continues to run, as tho’ there had been no recovery.</p>

<p>The action, and pleas putting the title of land in issue.</p> <p>The land unenclosed.</p> <p>The title papers of each party—and varying copies of the same paent.</p> <p>The Register attestation to a copy of a survey, does not apply to, or authenticate, an indorsement upon the back of it: and, in the absence of other evidence, an indorsement upon the copy, offered as evidence of alike indorsement on the original, was properly rejected.</p> <p>Instructions.</p> <p>Two papers being produced, not alike, but both purporting to be true copies of the same patent—whether the one, or the other, is the true copy, is a question of fact.</p> <p>The period from which Virginia dates her existence as a State, is matter of law, as well as of fact.</p> <p>A paper certified as a true copy of a patent, bearing date in 1785, and the tenth year of the commonwealth (which was 1786,) may agree with the original; or one bearing date in 1786, and the tenth year of the com’th (corresponding dates,) may be a true copy: which is so, is a question of fact; a jury may be justified in finding in favor of the former, but it is not matter of law, as to which the court can give them instructions.</p> <p>A patent takes effect at the time it is issued, or executed—of which the date is evidence.</p> <p>A patent being produced having two different irreconcilable dates, held, that, the ambiguity, unexplained, must.be taken most against the patent—the latest date as the true one, and so the patent must yield to another conflicting patent issued between the two dates.</p> <p>When there are interfering grants and the junior patentee has made the first entry within the interference, & holds possession of it, if the elder patentee, enters up on it, within 20 years, for the purpose of taking possession, such entry stops the running of the statute of limitations against him and may vest him with the entire possession; it will, at least, vest him with the possession of land and, though the possession continued, it will save his right of entry for the 20 years from the time his possession ceased.</p> <p>A junior patentee (or one holding his title) enters upon an interference; but, before he has held it 20 years, an elder patentee (or one holding his title intending to take possession of the interference, enters, and settles a tenant upon it: this gives him (the holder of the elder the an actual possession of all the unenclosed land, at least; so that trespass cannot be maintained against him, for acts done to the land, while the tenant remains on it. And, under circumstances, instructions that, if the plt'f (holder of the junior title) had had 20 years continued possession within the interference, before the trespass was committed, the law is for him, cannot be sustained.</p>

<p>The decree of which the ex’or complain.</p> <p>To a suit by legatees against an ex’or, to have the estate settled, and their legacies paid, all the legatees should be parties, and the decree should settle the whole matter. If more than one suit is pending, they may be consolidated. — But, where it appeared, that some of the legatees, (defendants in this case,) had obtained decrees, in another suit, for their portions, it was proper to dismiss the bill as to them. The ex'r cannot complain that the dismissal was without prejudice, as the first decree would bar another suit.</p> <p>Where a legacy is given to be divided and paid over, when a certain event shall have occurred— as when daughters shall have had their last children, a reasonable certainty that the event has happened (tho’ it may be possible that it has not,) will entitle the legatees to decrees for their legacies ¡especially, if they give bonds to indemnify the ex’r against the possible contingency of an over-payment.</p> <p>The funds of art estate being out upon loan, as required by the will, it is error to decree that the ex’or, who has been guilty of no gross neglect in that respect, pay the legatees in money: they should be required to take the securities.</p> <p>Legatees were entitled to the proceeds of a debt, which the ex’or was enjoined from collecting; a decree against him in favor of the legatees, including the amount of that debt, is, so far, premature & erroneous.</p> <p>Where depositions were read, and it appears that the adverse party objected for want of notice, and the record fails to show that he was present or had notice when they were taken, their admission must be deemed an error.</p> <p>A decree for legacies due to infants, provided that it should not be executed until statutory guardians were appointed for them, and the court should approve refunding bonds: this was well; an insolvent next friend should not be permitted to receive the legacies, or to exercise any discretion in the case. —The regular course was, not to await the action of another tribunal in appointing guardians, but to appoint a trustee to receive and secure the money.</p> <p>The funds of an estate, at the time of a settlement with the ex’or, consisted in part of interest accrued, but not collected, upon outstanding loans: it was unjust and erroneous to require him to pay interest on the aggregate balance (including interest which did not bear interest,) from the time of the settlement.</p> <p>A settlement of an executor's account in the County Court, however erroneous, is good prima facie evidence till it is reversed; and when used incidently (as, for evidence, in another suit,) it is conclusive, except so far as it may be proved to be incorrect.</p> <p>A testator directs that a portion of his estate shall constitute a fund to be kept out at interest, until a certain epoch; then to be divided among legatees: it was, no doubt, his intention that the interest should be collected, from time to time, added to the principal, and made productive; and it was the duty of the ex'or so to manage it; and, from the fact that it was his duty, the court presumes that he did so, and holds him accountable for interest accordingly.</p> <p>A suit in ch’y is instituted against, an ex’or, to compel payments of legacies. It appears that, there had been a fund under his care, for many years; lent out, in pursuance of the will and producing interest - which he, it is presumed, collected and converted into principal, from time to time. But in in a county court settlement — upon which he relies — he was only charged with simple interest upon the fund, from the time it came to his hands till the settlement: held that this was good ground for impeaching the settlement, so far as to require the ex’or lo produce, under oath, an account, which, it is presumed he kept, showing what interest he received, and how it was used— which account, will he open to examination and correction. And upon the consideration of all the facts which can be ascertained, he must lie made to account for all interest upon interest which lie actually received, or which he might have received by using common diligence and prudence — a liberal allowance being made for casualties. But for the county court settlement, he would be held liable for compound interest at once, by the adoption of rests— see p. 80.</p> <p>If an ex’or fails; to render a satisfactory account of his receipts of interest, & employment of it, the court should adopt periodical rests-annual biennial, or less' frequent; according to the circumstances of the case—for compounding the interest.</p> <p>An executor had funds in his hands, to be lent from 1819 to 1830-35, embracing the time when ‘‘the relief system”— recognised as part of the history of the country— prevailed: held, that, so far as he shall fail to render an account of his actual receipts of interest, and interest upon interest, or to account for his failure to collect and employ the interest as"it accrued, there shall be a rest, for adding interest to principal, once in three years, during the continuance of the relief system, and once in two years afterwards.</p> <p>If he renders an account, it will be open to proof on both sides.</p> <p>A will directs that a slave shall be hired out, or sold to a particular person; the ex’or sells him to another, but the presumed object of the testator is secured: the ex’or shall not be charged with more than he got for the slave.</p> <p>Payments made by an executor, should be deducted from the aggregate of the funds in his hands at the time; to charge the payments with accruing interest on their, is not the correct mode.</p>

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

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

<p>Ferry Case.</p> <p>From the Union County Court.</p>

<p>Statement of the case.</p> <p>The orders in a ch’y cause should show how and when the answers were filed. After the regular time for answering has passed, the court may, in its discretion, receive or reject an answer; and the motion for leave to file it, and the decision, should appear in the record.</p> <p>If the record fails to show how or when a deft’s answer got into a cause, he cannot complain that the cause was heard too soon after ans’r filed.</p> <p>A guardian agrees to pay the mother of his wards a sum for their support, for a time: her demand for this, is against the guardian personally: the wards are not necessary parties to her bill to have it allowed to her, as a set-off against a judgment he has against her.</p> <p>An answer is included in the transcript of a record, which the clerk certifies, he finds among the papers; how or when it was put there—whether before or after the hearing, does not appear; but the certificate of its being sworn to, shows, that it could not have been filed in due time: this court disregards it, and considers the allegations of the bill, as taken for confessed. But—</p> <p>An answer that was placed among the papers within the time allowed for answering, tho’ not filed of record, would not be pretermitted—especially, where there was a motion, at the hearing, to file it, nunc pro tunc.</p> <p>Several children of a deceased father remained with their mother, who had a right to charge their guardian for their support; she had also, a claim on him, for the board and clothes of two, under a special agreement; he made payments, for which she gave general receipts, as for the support of the heirs &c: the receipts are not evidence of payments on the special agreement; and, as he failed to direct the application, she may apply the payments to the other claims; and, that she did so, is sufficiently proved by her bill claiming the special contract as still all due.</p> <p>A guardian agrees to pay the ward’s mother a certain sum for their support: as he is personally liable for it, it is no defence that he has exhausted their estate in paying other debts.</p> <p>A man died possessed of real estate, which he held under title bonds—part of the consideration unpaid. The personalty & slaves are exhausted, and debts remain due, which must come out of the rents and profits of the real estate: the dower,which has been allotted to the widow, may, perhaps, be made to contribute, to pay those debts: if so, the proportion to be assessed upon it will not be a third of the debts; but should be ascertained by comparing the value of the dower interest—estimated by calculating the time that the widow will probably live—with the value of the fee simple; and the widow should pay the same proportion of the debts which the value of her interest in the estate bears to its entire value.</p>

<p>Statement of the case.</p> <p>Co-sureties are all equally bound in equity, to contribute whenever the debt devolves upon them or any of them; and if some prove to he insolvent, the burden must be borne eqally by those who are not so.—And whenever their undertaking is to the same party, on account of the same principal, for the same debt or duty, and to the same extent—whether they are bound jointly or severally, by the same or by different writings, is not material, as regards contribution, in equity: the effect is the same.</p> <p>Where divers obligors are bond for the same thing, whether by the same of by different obligations, and the creditor's remedy is in equity, he must make them all defendants; for equity will not permit him to elect among those equally bound to him. And—</p> <p>If one holds several different obligations, to indemnify him against the same contingency, a recovery at law upon one, will not exonerate the obligors in the others from their liability in equity, for contribution.</p> <p>The opinions of the acquaintances of a surety that he is insolvent, corroborated by other circumstances, held to be sufficient evidence of the fact, to exclude him, in a decree for contribution among co sureties, and cast his proportion upon the others.</p> <p>A decree for contribution, ag’st a co-surety, should include interest on the sum for which he is liable, from the time it was paid by the comp’t till the time of the decree, and also, def’ts, due share of the costs incurred in resisting the creditor’s claim, with interest on it.</p> <p>The privity between sureties, is not such as to make a judgment against one, evidence, per se, against another; yet, as each is liable for his portion, and might be permitted to defend a suit against another, if one not sued had such notice of a suit as would enable him to defend, the record may be used as evidence against him. And—</p> <p>Held, that the admission of a party that a copy of an opionion of the Court of Appeals, remanding a cause for a new trial, was shown to him, soon enough to enable him to defend upon the new trial, justifies the use of the record as evidence agains him, in a suit for contribution.</p> <p>Proof, which, taken in connection with the peculiar phraseology of the answer, is held to be sufficient to establish the fact, that the defalcations of the cashier of a bank, occurred at a time when the respondent was bound for him, and thus fix the liabilty of the surety to a co-surety, for contribution.</p> <p>In a suit, brought by one who had satisfied a judgment that a bank had recovered against him, as a surety; against a co-surety, for contribution, the comp’t produces a receipt of the cashier for more than the amount of the judgment ‘paid on a comprome’, in full; and proves by the cashier that the receipt is genuine: tho' this is not evidence of any actual payment, but only, that the cashier had said, (in the receipt,) that so much had been paid; yet, as the presumption is that, the bank would not thus have discharged the debt without payment in full, the receipt is prima facie evidence of such payment—especially, as deft did not question the cashier, when he gave his deposition, as to the mode or amount of payment.</p> <p>The unexplained fact that, the receipt purports to have been given “upon a compromise,” and is yet for more than was due, is not sufficient to rebut the presumption of payment arising from the receipt itself. If the terms of the receipt would justify the conclusion, that property, and not money, was taken in satisfaction of the judgment, it would not justify the inference, without proof, that it was taken at an exorbitant price, and the debt thus discharged upon a partial payment only.</p>

<p>Statement of the case.</p> <p>The general rule in rescinding contracts for land, where there is no fraud on the part of the vendor, is that, the purchase money paid, shall be refunded, with interest. And the same principle requires that, where there is a rescission as to a part only, the proportion which the value of that part, bears to the value of the entire tract, should be ascertained, and a like proportion of the purchase money restored, with interest. But a different rule may be adopted by the parties, or may result from their agreement; and if they, by consent, ascertain & fix the price of the land conveyed, the difference between that, and the agreed price of the whole tract, must, (in the absence of proof of any different stipulation,) be taken as the sum to be refunded, with interest.</p> <p>A deed having been made, and accepted by the purchaser, for as much of the land sold as the vendor could make a good title to—held, that, upon a rescission of the contract, as to the residue, the difference between the agreed price of the entire tract, and the consideration for the part conveyed, as stated in the deed, must be taken as the sum to be refunded, with interest, to the purchaser. And—</p> <p>In the absence of the deed, a commissioner’s report, to which there was no exception, and in which the rate at which the land was sold, is stated, may be prima facie evidence of the consideration. But (vide post) the deed must be referred to, if to be had.</p> <p>Where a purchaser relinquishes a part of the land, upon a partial rescission of the contract, he is chargeable with rent for that part, according to its value compared with the agreed price of the whole tract—and the interest on the value, so ascertained, and the rent will be considered equivalents. And any agreement of the parties which furnishes a different criterion for the value of the relinquished land, and sum to be refunded, must be applied to the ascertainment of the amount, or rate, of rent also. So—</p> <p>Where a purchaser relinquished that part of the land, which had the buildings &c. upon it, and was far more valuable, by the acre, than the rest; but in consequence of the consideration for the balance being stated, in the deed for it, at the rate per acre at which the whole tract was purchased, he gets a restoration of purchase money only at the same rate per acre; held, that, as in equity, he could be charged with rent on the part relinquished, only by the acre, at the average rate of a fair rent for the whole tract, ha shall be charged for rent, only with a sum equal to the interest on the money to be refunded to him—from which amount of rent, the value, at the time the possession is surrendered, of the improvements made by him, is to be deducted: for the balance he must account.</p>

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

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

<p>Motion.</p> <p>This was an original motion in this Court, on behalf of the plaintiff in error in a case decided at the preceding term. The motion was reduced to writing, in the following form:</p> <p>The plaintiff moves the Court to amend the judgment entered in this case, on the last day of last term—by cancelling so much of the entry as pronounces, “that “ the defendant recover against the plaintiff ten per cent. “ damages on the amount of the judgment”—and thus make the judgment conform to the opinion and mandate delivered by the Judges, and the short note in the minute book, which together constitute the minutes.</p> <p>The judgment affirmed is in these words, following and referring to the verdict—“It is therefore considered “ by the Court, that the plaintiff recover against the “ defendant the sum of one thousand dollars in Commonwealth's “ Bank paper, the damages aforesaid by the jury “ aforesaid assessed, and also, his costs in this behalf “ expended.”</p> <p>The opinion delivered in this Court, affirming the judgment, concludes as follows:—“Upon the whole, there“fore, upon a careful scrutiny &c. we are satisfied, that “ judgment of the Circuit Court should be affirmed,” which sentence embraces all the mandatory part of the opinion.</p> <p>The minute is thus:—“Hodges vs. Holeman—aff’d—Absent Ch. Jus.”</p> <p>Neither saying a word, directly, nor by implication, about damages.</p> <p>The judgment drawn out from these minutes, is as follows:—“The Court being now sufficiently advised, it “ seems to them, that there is no error in the judgment. “ It is therefore considered by the Court, that the judgment “ of the Circuit Court be affirmed, and that the “ defendant recover against the plaintiff ten per cent. dam. “ ages on the amount of the judgment: which is ordered “ to be certified to said Court:—and it is further “ considered by the Court, that the defendant recover against “ the plaintiff his costs herein expended.”</p>

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

<p>‘Received of W. P.’ certain notes “which I hold myself bound for to” him: these terms bind the covenantor, not for the money due on the notes, but for their redelivery, in a reasonable time; and the measure of damages for a breach of covenant in failing to re-deliver them, is their actual value, dependent upon the condition of the debtors at the time when the notes ought to have been delivered—which must be ascertained by a jury; and upon that value, a jury may give interest, or may withhold it: instructions that they are bound to give it, are erroneous.</p>

<p>Appeal by White &c. complainants in the Court below, and Writ of Error by Hardin &c. defendants in the same cause.</p> <p>From the Circuit Court for Madison County.</p>

<p>The certificate of a county court respecting facts admitted upon an application for the appointment of an adm’r, is accredited in this court.</p> <p>By law, the widow is entitled to administer upon the estate of her deceased husband, if she is in all respects qualified; but the fact that she is a resident of another state — tho’ her husband resided here, is a sufficient reason, for rejecting her claim, and granting the administration to another.</p>

<p>When one surety pays the debt, all others who are bound to tho same party for the performance of the same conditions— whether bound by the same or by different bonds, are liable for contribution.</p> <p>Where some of a set of sureties are insolvent, & others solvent, the burden must, in equity, be made equal among the latter class.</p> <p>The effect of non residence & insolvency is the same, in the courts of this state. In cases of set-off against the claims of non-resident creditors, non-resident vendors coercing payment without making title; non resident obligors, in suits against assignors, &c. the non residents are placed upon the same grounds as tho’ they were insolvent. So, held, that, in equalizing the burden to be borne by co sureties, in equity, the principal or any surety who is a nonresident, may be treated as an insolvent party.</p> <p>Where the liability of a surety is collateral, he may be justified in submitting to a suit, in order to fix the extent of the liability; and, in that case, his co-sureties will be liable to him, for their due proportions of the cost of the defence.</p> <p>Interest upon contributions, in surety cases,from the time the debt was paid, to the time of the decree, should be allowed in chancery.</p>

<p>A case having been reversed, & remanded, with an unconditional mandate for a new trial, it was clearly erroneous to give a judg t against the party to whom it was granted, for the costs of the former trial.</p> <p>A judg’t rendered upon granting a new trial, for the costs of a former trial, may be enforced by execution, without the intervention of the Court, and is a final judg t. The statute is, that a writ of error may be prosecuted to reverse any final judgment, order, or decree: intermediate judgments, in the progress of a suit (as for costs, upon granting a new trial,) are not excepted in the statute : writs of error , therefore, lie upon such judg’ts; and the time by which a writ of error on such a judg’t is barred, runs from the time of its rendition.</p> <p>Suggestions that where, in the progress of a cause, a party becomes liable for incidental costs, the fact might be noted in the orders, and the final judgment for those costs suspended till the termination of the suit: or that an interlocutory monition or rule might be entered, which may be at any time enforced by attachment, or suspended Or revoked, at discretion, as long as the parties remain before the court.</p>

<p>Statement of the case.</p> <p>Whether covevants are dependent, or independent, is to be determined by ascertaining the intention of the parties as to the time of performance.</p> <p>The same contract and writing may contain divers stipulations for the performance of as many acts by each party, provided some one or more acts are done previously or simultaneously by the other party; and in such case, the obligation to perform any one of the stipulations, separately, will depend upon the performance of the conditions relating to that particular act, and will not require the performance of all the stipulations which the covenantee is bound, by the same writing, to perform before or at that time.</p> <p>In Eq. when a party seeks to enforce the specific execution of a contract, and shows a peformance on his part, of the conditions on which it depended—yet, if it appears that that contract was but one, among others, of various stipulations in one entire agreement, the defendant may resist the claim, upon the ground of the nonperformance by the comp’t of other distinct covenants constituting parts of the same agreement. In such case, the Chancellor will refuse to aid the complainant, but leave him to such legal remedy as he may have—And the assignee of a covenant, in such case, would be in no better condition than the covenantee himself.</p> <p>A purchaser of land fails in his execution—the vendor having disaffirmed contract, because of the purchaser’s failure to comply with certain conditions in the agreement, for the sake of which the defendant was induced to make it: the purchaser is entitled to pay for the valuable and lasting improvements he has made upon the land, in the honest belief that it was his own; and, after the amount of rents is deducted from the value of the improvements he (or his vendee in his place) may have a decree for the balance, on a prayer in the bill for such relief, as an alternative.</p> <p>A ch’r may refer enquiries of value to a commissioner, or to a jury, at his discretion.</p>

<p>Statement of the case.</p> <p>An injunction against a claim to a portion decedent’s estate, by heirs who refuse to come into hotchpot, is unnecessary: a decree excluding them, or dismissing their bill asserting the claim, would be an effectual bar. A bill for an injunction merely, presents no ground for the interposition of the ch'r; granting or perpetuating an injunction in such case, however, would not be a material error—for which the decree might be re-reversed.</p> <p>The recitals in a deed—so far as its effect and operation, the responsibilities and obligations arising under it, come in question, are conclusive as to the value of the consideration—not as to its nature or quality.</p> <p>A recital in a deed of land front a father to a son, that it was made in consideration of a certain sum paid, is not conclusive evidence that it was made upon an actual sale, and not as an advancement; if the latter, it was, nevertheless, upon a valuable consideration, and the recital may have been intended to fix the amount of the advancement: that it was for an advancement, may, therefore, be proved by parol; especially, when the object is to rebut a claim of the grantee, as heir, to an equal division of the grantor’s estate.</p> <p>A deed from father to son, for 100 acres, purports to be made in consideration of §500 paid.—There is proof conducing to show that it was made as an advancement to the son; but proof also, that he actually paid §300 to, or for, the father, on account of it: held that, the $500 must be taken as the value of the 100 acres,and, so far as the payments go, the land must be considered as sold and paid for; the residue (40 acres,) must be deemed an advancement to the son — in land; which his heirs must bring into hotchpot, to entitle them to come in for a portion of the grantor’s estate.</p> <p>The fact that certain co-heirs had refused to bring the land descended father into hotchpot, alleging (as they well might, from the recitals in the deed,) that it was a purchase by him, is not a sufficient reason for excluding them in the division.</p> <p>Being infants, it is the duty of the court to protect them; and if it will be for their interest to bring in the advancement, and have a share in the division, the court should so order it; if more for their interest, permit them to retain the advancement, and exclude them from the division.</p> <p>One heir having received, as an advancement, more in land, at its value when given, than his share, the others are entitled to as much more of the other property-slaves first, then personalty, as will make an equal division of the whole estate, among all the heirs.</p>

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

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

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

<p>Statement of the case.</p> <p>Mental imbecility—not amounting to absolute disqualification— induces a vigilant, strict examination, in chancery, of the contracts made by one laboring under it; and when coupled with gross inadequacy of consideration, they constitute such evidence of fraud, as may vacate a contract.</p> <p>A man of debilitated intellect, but still capable of managing for himself,gives out that he does not intend that any of his property shall ever go to any of his relations, and thus induces others to intrigue for the succession ; a party contrives to ingratiate himself with this man, and obtains his entire confidence, and also furnishes him with money, which he had no ready means to repay; then exerting the combined influence of the devoted friend and pressing creditor, induces him, when intoxicated, to execute a conveyance of slaves & other property, upon the consideration that the grantee shall pay the debts of the grantor, and support him for life; which contract is, afterwards, re-written, with modifications desired by the grantor, and by him again executed when he is perfectly sober: held that, as all the grantee paid, did, and undertook to do, on his part, did not amount to one third as much as the property was worth—tho conveyance must be set aside, as having been obtained by fraud.</p> <p>Inadequacy of price alone,when such as to show that the vendor did not understand the contract, or was induced to make it, to escape oppression, will vitiate the contract. And, though the inadequacy be not such as of itself to show either want of understanding, oppression, or command; yet if any such circumstance exist, and advantage is taken of it, to extort a hard bargain, the contract will not stand.</p> <p>Various circumstances relied upon as counteracting the evidence that a contract (made by a man of impaired intellect, upon a very inadequate consideration) was obtained by fraud: but which are held to be evincive of insincerity in some respects, and as tending, altogether, rather to add to, than to counteract, the evidences of frauds.</p>

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

<p>The act of 1801, giving a summary remedy against attorneys who fail to pay over money collected for clients, applies only to attorneys, of this state, and to moneys collected by them officially : not to attorneys of the Federal Courts, nor to collections made under their process.</p>

<p>History of the controversy.</p> <p>The judgment or decree of a court of competent jurisdiction is, in general, final and conclusive—not only as to all matters determined by it, but as to all incidental matters which might have been properly litigated and decided in the same suit. But-</p> <p>To the above rule there are exceptions; as where the judg’t or decree was obtained by fraud, or where there is a discovery of new evidence of a permanent and unerring character, or of new matter, of which the party, tho’ diligent in his enquiries, was ignorant till after the hearing; in such cases, the decree may be corrected or annulled—by bill impeaching it for fraud, if it was obtain’d by fraud; in other cases by bill of review. But—</p> <p>The bare omission, perversion, or misrepresentation, of facts in a bill, is not such fraud as will subject the decree to impeachment; nor will any misconception on the part of a defendant, as to the ground, characacter or object of a suit which he fails to defend, be ground for opening the case after a decree; nor will a suggestion that the court adopted an improper decree through misplaced confidence in the person who drew it up.</p> <p>Where a comp’t has a knowledge of any material fact which he is morally bound to communicate to def’t, but conceals it, & goes on and obtains a decree, the def’t, without fault or neglect, remaining ignorant of those facts, which would have prevented the decree—there is good ground for a bill of review, or a bill to impeach the decree for fraud. For—</p> <p>Fraud will vitiate any act,however solemn; and the suppression of truth, as well as the assertion of falsehood, may constitute fraud.</p> <p>A party who seeks to open a decree upon the discovery of matter, unknown to him till after the decree was rendered, is not held to very strict proof—either of his ignorance of the existence of the new matter, or of his industry in making enquiries which might have led to the discovery: much less vigilance will he required of him, than of a party who, having put facts in issue, relies on a failure to find the proof to sustain them.</p> <p>Recital of facts and circumstances held sufficient to justify the conclusion, that a party was ignorant of the matter upon which he founds a hill of review, until after the decree, and his ignorance not imputable to such neglect or laches as will preclude his right to impeach the decree on the ground of fraud, or to maintain a hill of review.</p> <p>Granting an injunction by a Judge at chambers, is tantamount to giving leave to file the bill.</p> <p>That a bill was filed without leave, contrary to the rules of practice, will not be fatal at the bearing,when no advantage has been taken of it before, and the bill has merits.</p> <p>Bar by time set up, and answer to that defence.</p> <p>Trust is a very comprehensive term—embracing a vast variety of cases where money or property has been received by one party for the use of another; and as to most of which, the rights of the parties may be enforced at law, or in equity. Where the trust may be enforced at law, the statute of limitations will bar the action, and ill all such cases the bar will be applied in equity also. But there is a class of trusts of which equity has exclusive jurisdiction; and to these, no bar by lapse of time is applied.</p> <p>The demand of one co-tenant for his share of the rents received by another,might be enforced by the action of account —within 5 years, not after: the same time will be a bar in equity-</p> <p>The time that bars a bill in eq. to be relieved against a fraud, is computed from the discovery of though the case may be such that be remedy an action at law, which the statute of limitations would bar by time, commencing when the fraud was perpetrated.</p> <p>When mutual demands exist, and are of such character, or there is such connection between them, that the larger demand might be used, as a set off. to prevent any recovery in a suit upon the smaller one, tho’ the latter may have stood till the statute of limitations might be used to defeat any action upon it; yet, as the existence of the smaller demand is a virtual payment, pro tanto, of the larger, counter demand, and its application in that way might be compelled by suit, the statute of limitations can never be used or permitted so to operate as to extinguish it, and leave the counter demand in force.</p> <p>In general, where a party succeeds upon a bill of review, or a bill impeaching a decree for fraud, the decree is set aside and annulled, and the parties are permitted to commence de novo. This must be the case whenever the new matters are inseparably connected with those on which the decree is founded. But there are exceptions, and, here, where the new matter does not affect the of the original decree, but consists of counter demands, extinguishing, pro tanto, those upon which the decree was founded, held that the decree impeached—especially, as, if it were annulled, the demand might be barred by time—should be permitted to stand—subject to such reduction as the new matter may require; and, to that extent, there should be a perpetual injunction against the original decree.</p> <p>One of two tenants in common receives all the rents. A division of the estate is subsequently made, by agreement, and the improved part, which had produced all the rents, is allotted to the other co-tenant, who undertakes who had paid the whole sum adjudged to an adverse claimant for the improvements: there being nothing in that effect, it cannot be implied that, he who took the improved part was to have had been derived from it before the agreement; and his right against a co-tenant for a share of the rents, is for one half only, not for the whole. Nor does any right to the whole result from the fact, that interest was decreed against him, on the sum that he had agreed to pay on account of the improvements.</p> <p>Answer to petitions for a rehearing.</p>

<p>Trespass, for freedom.</p> <p>From the Circuit Court for Barren County.</p>

<p>Statement of the case.</p> <p>In the absence of proof as to the terms of a partnership, the presumption is, that the interest and liability of each individual member of the firm, is the same; or that the members, having furnished unequal proportions of the capital, own the stock in the same proportions, and are liable for disbursements, and entitled to profits, each in proportion to his interest; and this rule holds, it seems, where the partnership was formed between a company of two or more partners in other business, and another individual.</p> <p>Two partners being, by agreement, equal in interest, are each bound to contribute an equal share of the advances required; but ’ one falls short, and - the other makes up the deficiency.— The defaulting partner sells out his interest to a stranger, and the other unites with the purchaser in releasing the retiring partner from all debts and liabilities on account of the firm: held that this release extends to all claims which the continuing partner had upon the retiring partner, on account of the inequalities in their advances ; for, when two or more are equal partners, and one furnishes more than his due share of funds for the use of the firm, the excess constitutes a debt due by the firm, not by the other partner—to him who made the advances; and if one fails to contribute his due share, the deficit is a debt due by him individually to the firm.</p> <p>Where one partner in a firm, by general consent, transfers his interest to a stranger, who takes the place of the vendor in the firm, the effect is to dissolve the partnership, and rescind the partnership contract, so far as the retiring partner is' concerned; and he is thereby exonerated from his obligations to contribute to the stock of the company, or to his partners, altho’ he may have contributed less, or they more, than was required by the terms of the partnership: his obligations in those respects—unless it is otherwise agreed—devolve upon his successor in the firm.</p>

<p>The act of 1833, against gaming, leaves the amount of the fine imposed by §10, not less than $200, nor more than $500, to the discretion of a jury; and,tho’ the def’t pleads guilty, it is error for the court to dispense with a jury, and fix the amount of the fine, without consent — which will not be presumed, unless it appears in the record. The 2 sec. of the act of 1823, if not repealed, applies only where “a gaming table or bank” is set up or kept; not where games with cards are merely permitted.</p>

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

<p>Statement of the case.</p> <p>A voluntary deed, made when the grantor was not in debt, is not void. But-</p> <p>A justice of the peace certifies that, at a certain time, he rendered certain judgin’ts against one who is grantor in a deed,upon notes, with interest from such a date. The judg’ts were not rendered till after the deed was made, but they bear interest from a time anterior to its date. Held that this certificate—the presumption being in its favor—is sufficient evidence (against the denial of an answer for infants.) that the debt existed as early as when the interest commences, and consequently, when the deed was made, and is sufficient to enable a creditor to defeat the deed.</p> <p>A conveyance includes all the grantor’s effects: it is upon a nominal consideration; to be void if the trustees abuse the trust, and, at all events, at the grantor’s death: these are badges of fraud.</p> <p>By the act of 98, land was made a fund for the payment of debts, and is so still; and tho’ a justice’s ex’on cannot he levied upon lands — upon a return of ‘no property found’, a bill in chancery may be filed, under the acts subjecting debtors’ choses in action, equitable or legal interest in any estate, real, personal or mixed, &.c. to the payment of “any judg’t:" in that way, the land may be reached, and sold to satisfy a justice’s judg’t, as well as any other; and if any conveyance has been made to hinder or delay creditors, it will be set aside.</p> <p>A decree against infants, must reserve their right to show cause against it after they are of age, or it will be erroneous.</p>

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

<p>A guardian purchases land with the money of his wards: they may elect to take the land absolutely at what it cost, or they may consider it as a security for the money. But—</p> <p>A decree against the guardian and his surety, in personam, to be enforced by execution, and, in rem, to sell the land also, both at the same time — is erroneous: the decree should be monitory, in the first instance, for the defendants to pay by a given day, and upon their failure, then there may be a decree for a sale of the land.</p> <p>The bond of a father appointed guardian of his own children, by a county court, when they had no authority to make such appointment, is invalid as a statutory bond: yet it may be enforced in equity, and for all the purposes for which it was intended, though the Common’th is obligee, and the wards no parties to it.</p> <p>Payment to the wards’ father (illegally appointed guardian)will not exonerate the executor,unless the wards adopt the act. The executor should have a receiver appointed by a court of equity, or retain the fund till such appointment is made. And the executor remains liable, although the wards may attempt to enforce a lien on land in which their money has been invested—and is a proper party to a suit for that object.</p>

<p>Statement of the case.</p> <p>Mortgagee alleges that he was in possession of the slave mortgaged, mortgagor, in his answer and cross bill, alleges that he was in possession; a deft, who claims the slave against both, denies the mortgagee’s allegation, but is silent as to the mortgagor’s possession. Held that all this must he understood as meaning a manual possession merely, so no denial of the possession in effect, which results to the mortgagee from the possession held by his mortgagor. Yet, us it is not alleged in the pleadings, and there is no ground to presume, that the actual possession was a fact within the deft’s personal knowledge, the allegation that it was with the mortgagee, cannot be taken as true against him.</p> <p>A party is in possession of a slave which he purchased at a sheriff’s sale, but under such circumstances that he acquired no title by his purchase; he is then made a def’t to a bill to enforce a mortgage upon the slave: the title of mortgagor and mortgagee proves to be wholly unavailing; but a decree having been rendered in favor of the mortgagee, requiring the purchaser to surrender the slave, he has such interest as will enable him to maintain a w.e. to reverse the decree: for, equity will not aid a party in selling property to which he has no title, even against another in the same predicament — especially, when the latter has a lien on the property. And—</p> <p>Where a party buys property under ex’on, but, because of adverse possession, &c. acquires no title — if he pays the purchase money, and thereby satisfies, pro tanto, the debt of the def’t, the latter is bound in equity, to reimburse him; if the property is delivered under the sale, the purchaser holds it in trust, with a lien upon it, as against the def’t in the ex’on, for the sum paid for it.</p> <p>A copy of a record being in a chancery cause, as part of the evidence, and nothing appearing to show that the reading of it, in the court below, was objected to — this court cannot disregard it, or any part of it; it must have its effect here, though not legal evidence against the party to be affected by it.</p> <p>Evidence that would have been good against the vendor of a slave at the time of the sale, is available against a purchaser or sub-purchaser.</p> <p>A bill not verified by affidavit should be deemed chiefly the Work of counsel, and therefore, its statements are not evidence against the complianant; but an admission of a 'fact in his answer to a cross bill, is; and tho' the respondent may couple with bis admission, an allegation, that a bill of sale, which be admits was ‘absolute in its terms, was intended as a mortgage only; yet, if there is no proof or allegation, that the bill sale was made absolute by fraud or mistake, it most prevail against the party who made, and admits it;and the allegation of the hill, tho’ not evidence, per se, may fortify that conclusion; and a dismissal of a bill filed to set aside the alleged defeasance, is a a circumstance still more effectual.</p>

<p>The action, and the facts & inferences on which the rights and claims of the parties are founded.</p> <p>The mere declarations of a party to an invalid deed — as, that ‘she held it sacred, & had confirmed it,’ cannot, of themselves, amount to a re-delivery. To constitute an effective re-delivery, the intention must concur with the act; and as there could be no such intention when the party believed that the deed was, & had been from the first, valid and binding, & therefore ‘held it sacred,’ the avowal of such impressions does not conduce to prove, that there had been a re-delivery in fact.— Yet such declarations made considerately, and with a full understanding of the subject, may conduce to prove that there had been a re-delivery.</p> <p>The plaintiff had said, but not to the defendants, nor in their presence, that she considered the deed, thro’ which they derived title from her, as valid: held that this does not conduce to prove, that they entered on the land at her instance, or with her approbation, so as to entitle them to notice to suit, or make a demand of the possession, be fore suit, necessary. And if the defend’ts did purchase and take possession in consequence of declarations made by the plaintiff, that fact alone Would.not affect her rights, unless the declarations were made with a view, or under circumstances which operated, to induce them to make the purchase. Under some circumstances, the defendants, having been induced by the plaintiff to purchase, might be enabled to hold the title; but not where the inducement consisted of declarations made by her, in ignorance of her rights.</p> <p>Defendants are not entitled to notice to quit, nor is a demand of possession necessary, unless they rest their right of possession upon consent or permission from the plaintiff.</p> <p>It is only where the i elation of landlord and tenant exists, in some form, that notice to quit, or a demand of possession is necessary : whenever the tenant claims the fee, or disclaims the landlord’s title, or takes protection under another, the landlord has aright to enter, or maintain any action for the possession, without notice or demand; and proof that a party in possession claims to hold adversely, is sufficient to show that he is not entitled to the privileges of a tenant.</p> <p>An entry without title or authority, does not oust a prior possession beyond the intruder's actual close, nor for longer time than the possession continues. The fact that a party had gone upon a tract of land, and cut and removed the timber, claiming to have purchased a title to the land, cannot destroy the relations subsisting between him and another, under whom he afterwards entered, and under whom he holds.</p> <p>A deed not valid to pass a title, may be used for some purposes ; as, to show how a party holds, or with evidence to prove that it had become valid by a redelivery.</p> <p>The declarations of a party, made at a time when he was in possession of land, may be used to show the nature of his claim—not the fact of a purchase. Those made at other times, are not evidence.</p>

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

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

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

<p>From the delivery of a note with a blank for the amount to he afterwards inserted, an unlimited authority to put in any sum, is implied; and a plea that it was filled up with a larger sum than was intended, is insufficient. But,</p> <p>A plea alleging that, when the note was delivered to the plaintiff, the sum and date were placed on the top or margin, with the expectation and intention that he would insert the same sum and date in the body, but that he tore them off, and inserted a different sum and date, without authority, and so the note is not the defendant’s act, &c. is good.</p> <p>A general replication, to a special non est factum, that ‘the note sued on is his act & deed,’ is insufficient; for it may be his act and deed, and yet not binding upon him: as where a special authority to fill blanks was not pursued,or where the note was obtained by duress, &c. If the facts pleaded show that the note is not binding, pltf. must traverse them. The onus upon such plea and issue,is upon deft, and the plea must conclude with a verification.</p>

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

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

<p>The action.</p> <p>Facts of the case.</p> <p>Instructions.</p> <p>A motion for a nonsuit, made at the proper time, overruled, and brings up the question whether the pl’tff had a right to recover upon the whole evidence, tho’no further instruction,or new trial, was moved.</p> <p>Principal questions.</p> <p>As heretofore decided, an ex’on in the hands of an officer, is, as to the def’ts personal property, a mere lien; it does not divest him of his title; if he sells the property, it will pass by the sale —subject to the levy and sale under the ex’on; and when the lien ceases, by a replevin of the debt, or otherwise, the purchaser will be secure from the effect of the judgment; a subsequent execution for the same debt, will not reach the property in his hands; and if such an execution be levied upon it, he may maintain his action for it, notwithstanding another lien, by another execution, existed at the time of his purchase, and is still in force. And, as now held—</p> <p>The lien on land resulting from an ex on being in the hands of an officer, is no divestiture of the title of the debt- or, nor does it deprive him of the power of selling the land-though the conveyance may be overreached if defeated by a levy of the execution, and sale under it. The levy of an ex’on upon the def’ts land renders the lien more specific, completes the authority of the officer to sell, and preserves the authority and lien, which would otherwise expire with the writ. But the levy (before sale) does not divest the defendant of his title, nor destroy, nor suspend, his right to sell and convey the land; though his sale and conveyance will be liable to be defeated by a valid sale under the execution— by which the title, as the def’t held it when the lien first took effect, by delivery of the execution to the officer, will pass. But if, before any sale takes place, or in consequence of the sale being void, the lien ceases, the title of the purchaser is freed from its effects.</p> <p>An officer who he can make no the recovery of upon moveable property, may take it into possession, will be accountable for it, and, if it is taken from him, he may sue for it in his own name, and when sold by him, he delivers it.—But, by a levy on land, the officer acquires no possession of it, in fact or in law, & incurs no res-transfer of it to a third person, before the sale under the ex’on, nor can he then deliver it to the purchaser, or evict the defendant. Between the levy and the sale, the defendant may maintain an action for the land, or for an injury to it—his rights in relation to it, being the same between the levy and the sale, as before the levy.</p> <p>The statutes of this state subjecting lands to the payment of debts, authorizes the sale of so much only as will pay off the execution; and if more is sold, when nothing in the condition of the estate makes it necessary, without other authority than the ex’on and levy, the sale is unauthorized and void. As the marshal of the the U. S. is governed by the state law in executing a fi.fa. the above principle applies to his sales.</p> <p>The question whether a sale of land under ex’on was void, or valid, may be made on the trial of an ejectment for the land, altho’ the sale had never been previously impeached. And,</p> <p>Altho’ the Federal court has the exclusive right to control and correct its own records & the acts of its officers— us the marshal, in executing a fi. fa. is governed by the state law, the above principles apply where sales have been made by him.</p> <p>A mortgage having been made while an ex’on bound the land, though the mortgagor must be deemed to be still the owner of the land for all the purposes of the ex’on, the legal title, for other purposes, is in the mortgagee, & the mortgagor has no right to direct a sale of more of the land than is necessary to satisfy the execution. No such right results from the equity of redemption. And-A sale of an equity of redemption pending a suit for a foreclosure, would he inoperative; and, if effectual, would not overreach the mortgage, tho’ sold under an ex’on that was a lien on the land before the mortgage existed.</p> <p>A deed made by a mortgagor to a stranger, after a suit for a foreclosure, can avail nothing against the mortgagee.</p> <p>Query—whether, where there has been an illegal and void sale of land under execution, the lien would be revived by a quashal of the sale and return.</p> <p>Possession by the defendant in an execution, of the land on which it is levied, is such evidence of title held by him, and transferred to the purchaser under the ex'on, as will be prima facie sufficient, as between them, to authorize a recovery in eject. by the purchaser. And, if the def't is out of possession, and the sale under the ex'on void, he, or his alienee, might, upon the same evidence, recover against the purchaser, or his alienee; so also, might the prior alienee of the defendant against his subsequent alienee.</p> <p>A purchase of land at a sheriff's sale, reception of the deed from the sheriff, and the possession from the defendant, constitute such an admission on the part of the purchaser, of title in the defendant, as will be sufficient, prima fade, to enable the alienee of the defendant—the sale under the ex’on being void—to recover in eject, against the purchaser under the ex’on.—For, in a contest between two titles derived, from one common source, the eldest must prevail.</p> <p>A party whose possession and only title was derived from a mortgagor after the date of the mortgage, sustains the same relation to the mortgagee, that the mortgagor was subject to; and — whatever might be the effect of another,’ paramount, title in himself — he cannot defeat the mortgagee’s action by showing an outstanding title in a stranger : evidence of such title may, therefore, be rejected.</p>

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

<p>Statement of the case.</p> <p>That a dedimus is blank as to the county in which the depositions are to be taken, & also, as to the magistrate authorized to take them, is not an available objection to the depositions.</p> <p>Though a deposition may contain some interrogatories rather leading if its would he substantially the same without the answers to those interrogations a refusal to reject it will not be good ground for a reversal.</p> <p>In ejectment on the demise of husband and wife, the title being in the wife, proof of the marriage is not essential.</p> <p>Proof of declarations of co-lessors, made before suit brought or intended, may be sufficient evidence of the marriage of a member of their family.</p> <p>Lis mota, as an objection to declarations, does not apply where the declarations were against the interest of the party making them.</p> <p>There being no evidence from which a jury might infer that an ejectment was barred by time, there was no error in refusing instruction; on that point.</p> <p>Either party may avail himself of exceptions taken by the other to show that instructions he did not ask for, but objected to, were given.</p> <p>Children is a term of purchase, not of limitation; and being used; in a will, with, nothing indicating that heirs, was meant, by it —thus: ‘To my daughter C. P. I. give, to her and her children, the 50 acres &c. to each an equal part, imports that they are to take equal shares as tenants in, common—the mother and seven children eight shares And no time being fixed by the will, for enjoyment by the children, or for partition, the estate vests, at the testator’s death, in the mother and children then living. But—The terms, C. P. is to have no more than the fifty acres of land above stated’—that being all devised to C. P. and her children, explain the devise, supra, and show that the intention of the testator, was that his daughter (C. P.) should have the whole for life — her children the remainder: which is, therefore, the true construction of the will.</p> <p>Upon the death of the testator, (supra) the remainder vested, eo instanti, in the children then living. But, as there is nothing in the devise to restrict it to the children then born’’ those born after the testator’s death, cannot be excluded: the remainder opened, and vested in each after-born child, as it came in esse.—And, the remainder having vested in the devisees upon the death of the testator — a devisee dying subsequently, his interest does not survive to the survivor, but passes to the heir at law.</p> <p>An estate devisee to a grandchild by its maternal grandfather, is not an estate derived from its mother, in the sense of the act which provides that a father shall not inherit the estate of his infant child derived from its mother: estate so derived, may go to the father, upon the death of the devisee.</p>

<p>An admission that absent witnesses will swear to the facts proposed to he proved by them, is not sufficient to defeat a motion for a continuance on account of their absence: the facts themselves must be admitted.</p>

<p>After the recovery of a judg't, no other action can be maintained, by the same pl'tff, against the same defendant, for the same thing; as between them, the cause of action is merged in the judg't. But— The recovery of a judg't against one defendant in detinue does not extinguish any cause of action which the same pl'tff may have against another person, for the same, or any other detention, or any conversion of, or trespass upon, the same property.</p> <p>Where a cause of action ex contractu exists, against several different persons, upon which they may be sued separately, a recovery against one or more, does not extinguish the cause of action against any other, till the judgment is satisfied or released. This is well settled in actions ex contractu—and the same principle, for stronger reasons, must apply to many actions ex delicto.</p> <p>The plaintiff, in an action of trespass against several defendants, may recover several damages, and elect demelioribus damnis; and for a like reason, as he may sue any number of joint trespassers separately, a judgment against one of them; should not; while it remains if force, be any bar to an action against any of the rest.</p> <p>Query—at what point of time, of upon what event; does the property—the subject of an action of trespass or trover, vest in the defendant in consequence of the judgment. Is it upon the rendition of the judgment; the issuing of the execution, or not till the judgment is satisfied.—But held that, as a judg’t in detinue does not vest the property recovered in the defendant, unless the alternate damages are satisfied, it is no bar to another action, by the same plaintiff, against another defendant, for a converson of the same property. Nor would it, it seems, bar another action of detinue, or of trespass, brought by the same plaintiff, against a different defendant, for the detention, asportation, or injury, of the same properly—especially, when the detention &c. were separate, independent injuries.</p> <p>Where a cause, of action is joint, only, a judg’t against one, may bar an action against another. But, as there maybe separata liabilities for a joint tort, an unsatisfied judg’t against one defendant, should not bar an action for the same cause against another. But there can be but one satisfaction for the same wrong; and one judg’t, being satisfied, will not only bar all other actions, for the same cause; but the plaintiff may be restrained from enforcing any other judgment he may have recovered for the same cause of action—at common law, by audita querela, and now by motion, or perhaps by bill in chancery with injunction.</p> <p>Interest disqualifies a witness— that is, a legal interest: no one who has a legal interest in the event of á suit can be a witness, however minute the interest may be; and if he believes and feels that he has a legal interest, the effect is the same, though he may be mistaken in supposing that he would be liable in law to lose or gain by the event. But mere solicitude arising from friendship for one of the parties, or a mere honorary obligation, or voluntary intention, of participating in the loss, in the event of failure, or a hope or expectation (unsupported by legal right,) of participating in the gain, in the event of success, will not render the witness incompetent. This kind of interest goes to his credibility only.</p>

<p>Trespass, FOR FREEDOM.</p> <p>From the Circuit Court for Calloway County.</p>

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

<p>The facts.</p> <p>The bill.</p> <p>The law makes it the duty of innkeepers to receive and feed the horses of travellers, and gives them liens, by virtue of which a landlord may refuse to redeliver a guest’s horse till his reasonable charge for keeping him is paid; and tho a guest departs and leaves his horse, the lien and right of retainer, for past and accruing expenses, continues; and this lien will prevail (unless there was some ground for suspicion, that Would justify refusal to receive the horse) against all claimants—even against the true owner, when the horse had been stolen, and brought to the inn by the thief.</p> <p>A court of equity has jurisdiction to enforce liens and pledges of personal property generally j and may order a sale of the horse of an innkeeper’s guest, to pay charges: but chancery has no jurisdiction of such a demand independent of the lien. And, at the proceeding is in rem, query, whether there could be a decree in personam, for the balance, in case the horse should not sell for enough to pay the charges.</p> <p>Where a horse is brought to an inn—not the owner, but by some other without authority—there is no implied obligation on the part of the owner to pay any charges. The horse may be sold, as above, but for the balance, if any, the innkeeper can look to the party from whom he received the horse</p> <p>A bill being filed by an innkeeper, to enforce his lien upon a horse, the owner, under an order of court, takes him and gives bond to produce him, to be disposed of according to the decree. As the horse was taken to the inn by a who had stolen him, the owner is liable by force of the bond only, and that liability is for the horse or its value when receive—not for a larger sum due for keeping him. But, as the bond is a substitute for the lien, there may be decree against the owner for the sum for which the bond makes him liable. An order for an immediate sale of the horse upon the filing of tho bill, would be proper, if tho horse is delivered to the owner, upon bond, it should first be valued.</p>

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

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

<p>Neither partial payment after the day, nor accord and satisfaction, partial or entire, can be proved under an issue of entire payment.</p> <p>A plea of payment, concluding to the country, with a similiter—though irregular, forms an issue, substantially, upon the question whether the whole debt has been paid.</p>

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

<p>A judg't rendered by a J. P. under the act of 1802, upon a warrant for a breach of the peace committed by an indictment for the same assault and battery.</p> <p>No indictment will lie for an assault and battery in an affray—where the fighting is mutually voluntary.</p> <p>Query, whether a proceeding by which an assault and battery may be punished with out the intervention of a grand jury, is constitutional. But see post 1322.</p> <p>Upon a doubtful question of the construction of a statute, a legislative exposition, with an extrajudicial dictum of this court formerly, are allowed, in this case, to have a decisive influence.</p> <p>The Legislature may declare that when a man has been punished by one mode of proceeding, he shall not be again punished for the same offence and tho’ the mode referred to, may be under an act not consistent with the constitution, the protection will, nevertheless, be effectual.</p>

<p>In a trial of a suit for slander, any fact that tends to show the motives for uttering the slander, or the circumstances accompanying the publication,not amounting to a justification, which must be pleaded—may be proved in aggravation or mitigation of damages.</p> <p>If the plaintiff had provoked the defendant, by injurious acts, or disparaging epithets, that might be some paliation;—but the mere fact, that the plaintiff was the deft’s enemy, would, prima facie, have rather an opposite tendency: there was, therefore, no error in rejecting evidence offered by def't, to prove it.</p>

<p>In an action for the proceeds of a note which had been delivered to the defendant’s intestate for collection, the record of a judg’t in his name, against, the same obligor, upon a note, dated before the receipt given for the one delivered for collection, and for the same sum, but not payable to the plaintiff, but to another or bearer—is admissible, as evidence.</p> <p>A receipt for a note for ‘collection,’ no more saying, does not, ex vi termini, imply a covenant to pay over the money; but the law implies an agreement to pay it over, in a reasonable time after it is collected—on which, indebitatus assumpsit will lie.</p> <p>The action for the proceeds of a note collected by an agent, should be brought in the name, either of him to whom it is payable, as the legal owner, or of the party equitably entitled to it. But a note payable to C. or bearer, but belonging to T. and H. is placed by T. in the hands of A. for collection. As T. was then the bearer, he could have had an action on the note in his own name, or in the names of the joint owners; and as A. the bailee of T. received it of him, he was accountable to him for it, and assumpsit was properly brought in his (T’s.) name against A’s. administrator, for the proceeds. And if C. should be deemed the legal owner of the note, still T. not being known to A. as an agent, could have maintained the suit in his own name. For—</p> <p>Where a bailee receives the thing bailed from an agent, of whose agency he is not informed, either the agent, or his principal, may maintain an action upon the promise implied by the bailment.</p>

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

<p>Motion. Chancery.</p> <p>Two cases—heard and decided together.</p> <p>From the Circuit Court for Hardin County.</p>

<p>If a right verdict upon a fall and fair trial, should ever be set aside, in order to reinstate a previous verdict, rendered when some proof was wanting— it should only be in a case where there was flagrant error in granting the new trial.</p> <p>It is not essential to the validity of the copy of a patent, that it should show the seal.</p> <p>A deed certified as having been duly proved and recorded in the office of the Gen. Court of Va. before the separation, is valid for any purpose.</p> <p>A deed acknowledged before the Mayor of London, and by him certified with his seal of office annexed, recorded in the county where the land lies, is sufficiently authenticated to he read as evidence, &, under the act of 1785, to pass the title.</p> <p>A notice to take depositions may he served by q. private persons and his oath in court, or his affidavit sworn to before a J. P. is sufficient proof of the service.</p> <p>Leaving a notice at a party’s residence, with his wife, is a good service on him— especially, when ample time was allowed for him to get the notice in season. The same, where he is no party to the suit, but designated, by agreement, to receive notices.</p> <p>The Register’s deed, for land sold for taxes, as the property of one who had conveyed it away, before the taxes were assesed upon it, passes no title.</p> <p>Where people settle on land, without claiming any right to it— mere squatters-in judgment of law, they hold under the legal title, and their possession inures to its benefit: so, where a possession of that sort must be included to make out the bar, there was no error in refusing instructions as to the limitation.</p> <p>One who, having purchased the land at a tax sale, recovered the possession from the squatters, holds adversely; but the nature of their previous possession, is not thereby changed; he cannot avail himself of it, against the holders of the legal title.</p>

<p>Statement of the case.</p> <p>As the intention generally prevails in a will, an executory interest may be created by it, without the intervention of an immediate estate; and the fact, that an estate for life given by a will, was not accepted, does not, per se, destroy the remainder — as it might where the gift was by deed-; the remainder being made not to depend on the particular estate, but to succeed to it, the consequence of the of the latter, might be, that the devisee in remainder would succeed to the possession immediately, instead of being postponed till the death of the devisee for life.</p> <p>A testator bequeathed a sum of money,a slave and other chattels to his wife to hold &c during her natural life, and, at her death,to descend to her granddaughter:” held that the term ‘descend,’ thus used in the will, is legatory; and that the granddaughter takes a vested remainder, and not a contingent interest as successor to the wife; that the testator’s intention Was to give the legacy to the grand daughter, for her own sake, and independently of the widow’s acceptance or refusal of the estate for life; and that, though the widow—preferring the interest which the law gave her—renounced her legacy, that fact did not destroy or defeat the legacy in remainder given to the granddaughter—there being nothing in the will indicating an intention on the part of the testator, that the grand daughter’s legacy was to depend upon the election which he is presumed to have known the widow had a right to make.</p> <p>According to the common law, a legacy to the wife is not construed as having been given in lieu of the slaves or her thirds — unless the intention that it should so operate, is expressed, or plainly to be inferred from the will, or unless any other interpretation, would be plainly inconsistent; &, independent of the statute of this state, a devise of a portion of a testator’s estate to his wife, and all the residue to others, or of the whole to be sold for the benefit of the wife and others, does not authorize the conclusion that the devise to her, was intended to be in lien of her dower (nothing appearing in the will, indicating that such was the testator’s intention,) and the other devisees, or the purchasers under the will, in such case, will take subject to the right of dower.— But the act of 1796 § 24 requires a renunciation by the widow, of the provision made for her by the will, before she can be entitled to any interest in the chattels of the testator.—So (in this case,) the testator having devised a sum of money, a slave and other personalty to his wife for life, remainder to her granddaughter, the legacy, if accepted by the widow, would be a bar to her interest in the slaves and personalty —not to her right of dower in the land.</p> <p>It may be that “parol and extrinsic evidence may be admitted to rebut a consequential equity, or an equitable presumption, or even that constructive effect which arises altogether from presumption.” But where there is no latent ambiguity in the writing, it can be explained only by itself: parol evidence is not admissible to defeat, change or vary its legal import: it is not admissible to prove the motive of the testator, or the terms on which a bequest was made, when the will itself furnishes no clue to any such motive or terms.— So held that, where there was a bequest of money, &c. to a wife for her life, then to go to her grand-daughter-who was not of kin to the testator, and no intimation in the will, that these bequests should be in lien of dower, parol evidence is not admissible to show that such was the intention of the testator.</p> <p>Devise to a wife for life; but she takes her thirds rather than the devise; in consequence of which, the legacies to others are reduced: they are equitably entited to the interest that she renounces; that is, the income, during her life, of the estate that was devised to her.</p> <p>A specific devise (of a slave) is not subject to contribution;but the general legacies are—the remainder after a life estate, as well as the rest-to make up the third for the widow, to whom the estate for life was bequeathed, but who renounced it.</p>

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

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

<p>The term deed signifies a writing with a seal—the seal being essential to make the writing a deed.</p> <p>When any goods been held under without demand made and pursued by due process of law, the statute of frauds makes the loan void as to creditors and purchasers, and declares that, as to them, the goods and chattels shall be deemed to be the absolute property of the person having them in’ possession—unless the loan is declared by will or deed in writing, recorded as the acts directs: held that the deed required by this statute, is a sealed writing; and that a declaration of a loan of slaves in writing, recorded, but without a seal, does not secure the loan from the operation of the statute; and that slaves which had remained more than five years in the possession of a party who received them upon a loan declared by a writing, recorded, but not sealed, were subject to an execution against such party.</p>

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

<p>The action.</p> <p>Evidence.</p> <p>Instructions.</p> <p>A ha. fa. may Re duly executed without an actual removal of the def’l. and his effects from the land. If the defendant, acquiescing in the service of the writ, yields up the possession, and it is delivered to the pl’tf, or his agent, it is a good service of the writ—tho ’ the def’t, (with the pltf’s assent) still remains, with His effects, upon the land. But without such submission and acquiescence, on the part of the def’t, his actual removal will be necessary.</p> <p>If a ha. fa. be-executed by delivering the possession of the premises to any person as agent of the pl’tf, the possession will inure to his (pltf’s) benefit — even tho’ the agent had no authority to act as such: he cannot dispute the pltf’s title; having received the possession for him, he will hold as tenant at will under him; and the def’t in the ha. fa. or any other, receiving the possession from the agent, will hold it, as the agent held it as the pltf’s tenant; and if he disclaims that title, he may be a moved by warrant of forcible detainer.</p> <p>Grounds upon which an affirmance is claimed.</p> <p>When the proceedings on the part of the pl’tf, are so erroneous, that they would not bar another action for the same cause, the judgment against him, whatever errors may have been committed to his prejudice, should be affirmed; but where it is otherwise, or where the point upon which the right depends, was decided erroneously,there must be a reversal.</p> <p>The form of a warrant in forcible detainer, given in the statute, is chiefly directory: it need not be literally copied; a substantial conformity is sufficient. As to the identification of the property detained, and the time when, — if reading the warrant to the def’t, will apprise him of the true character of the charge against him,with reasonable certainty, it will be sufficient in those respects.</p> <p>The issue on a traverse, is whether the inquisition is true or not; and evidence to show that the warrant was sued out and carried on, without the pltf’s authority, is wholly inadmissible on the trial of that issue —the fact itself would be no reason for affirming a judg’t against the plaintiff.</p> <p>The only interest that will exclude a witness, is a direct immediate interest in the event of the suit: a contingent, doubtful, interest goes merely to his credibility.</p> <p>The party objecting to a witness as interested, must show the interest: so, upon an allegation that a witness might be responsible in consequence of having instituted the suit without authority, he who makes the objection must show that the witness acted without color of authority, to render him incompetent.</p> <p>The authority of a sub-agent—emanating, as it does, from the principal—is not affected by the death of the agent from whom he received Ilia appointment.</p> <p>Where a party has acted for a long time, as an agent, with the knowledge of the principal, there is a strong presumption in favor of the authority.</p>

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

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

<p>The proof was, that a lessor of the pltf. held a title to the land in controversy, derived from an individual who was in possession (by his tenants) of the and, when he conveyed it to trustees, who conveyed it to the pltf's lessor, and remained in possession until the land was sold under ex’on, as his property, bought by, and conveyed to, a lessor of the pltf.—he (the grantor in the deed of trust and deft in the execution) having succeeded to the possession of others who ‘purchased’ the land, about 26 years before, and occupied it ‘for some years:’ as from this proof alone (no other produced,) the jury might have inferred facts which would sustain the action [see the text,] a motion for a non-suit was properly overruled.</p> <p>A decree of the General Court for a conveyance, & the commissioner’s deed, were offered as evidence of title: as that court is one of limited jurisdiction,and these documents alone did not show that it had cognizance of the case, or that the def'ts were before the court—there was no error in rejecting them.</p> <p>Instructions by which facts are assumed which do not exist, or which a jury alone can find,are erroneous</p> <p>An actual, tortious eviction, will alone sustain an ejectment; and when the deft, thus entered, he cannot avail himself of an outstanding title in a stranger. Whether defend ant’s entry was forcible and tortious, or otherwise, must be decided by the jury.</p> <p>Whether the pltf makes out such session as will enable him to recover upon mere possession, or not, must be submitted to the jury—who must find that the possession of the pltf. was for 20 years, or connected with that of his predecessors, the whole making a term of 20 years, adverse possession, without any interval—to sustain the action on that ground.</p> <p>A deed made by an agent, without authority, & accepted by the grantee, though not valid to pass the title, may be evidence for some purposes: as, to show the nature & extent of the grantor's claim, or—the deed being to two—show that one claimed only an undivided portion: and it might be used as an estoppel to prevent one of the grantees from denying the title of the other.</p>

<p>A judg’t in this case was reversed, because the verdict for a devastavit did not show the amount of assets misapplied. 3 Dana, 137.</p> <p>New judgments.</p> <p>When a cause is reversed, and remanded for a new trial, it must be allowed unconditionally, unless the mandate is otherwise: any judg't, or order, for costs, in such case, is erroneous.</p> <p>Facts.</p> <p>Upon the death of a partner, the settlement of the partnership business devolves exclusively upon the survivor; and he may pay open accounts against the firm, in preference to judgments against the deceased only. After all debts of the firm are paid, the decedent’s share of the residue must go to his personal representative, to be administered. And, where a surviving partner gave the administrator of the deceased partner accounts to collect, and they were met by claims of set-off, the adm’r was bound to allow them, and was chargeable only with the balance rec’d and retained, with the assent of the surviving partner.</p> <p>Any debt or demand which constitutes a legal set off, for or against a party, in his life time, if still subsisting at the time of his death, will constitute a good set-off, for or against his adm’r; who will not be guilty of a devastavit, if—tho’ judg’ts and bonds exist against the estate—he allows simple contract debts due from his decedent, to be set-off against debts of superior dignity due to the decedent, when the set off could have been enforced in the decedent’s life time.</p> <p>A debt that was contracted by a party in his life time, is not an available set-off against a demand due to his ex’or or adm’r, as such, by contract with him.</p> <p>On an issue upon a plea of plene administravit, plaintiff must prove that some assets came to the hands of the deft; so, holding the affirmative, he is entitled to the opening and conclusion.</p> <p>Trustees are not permitted to purchase the trust estate; and this rule applies to ex’ors & adm’rs; who ought not to hid at sales made under their direction.</p> <p>An ex’r or adm'r who has advanced his own funds to pay debts of the decendent, may retain any specific chattels of the estate, at their fair value, for his indemnity. The appraisement is prima facie evidence, only, of the value. A purchase at the sale, may be evidence of the election.</p>

<p>Statement of the case.</p> <p>Whenever an execution against the estate of a decedent is returned nulla bona while any debt remains due to the estate, the case is within the statute subjecting choses in action &c. to the payment of debts.</p> <p>An adm’r who has paid any of the debts of the intestate, out of his own funds, may elect to retain enough of the property, at its fair value, for his indemnity: the appraisement is prima facie evidence, only, of its value. But when not in advance for the estate, he has no such right ; a mere election to take the property at the appraisement, will not give him the right; & notwithstanding such unauthorized appropriation of it, the property will remain subject to ex’on against the decedent’s estate, if found; if not found, and the administrator permits a return of nulla bona, he will be liable for a devastavit.</p> <p>An adm'x, claiming a right to take the property at the appraisement, tho’ she had paid no debts of the estate when she sold it, charged herself, in her accounts, with the amount only, tho she sold the property, on credit, for much more: held, that, whether she sold it as her own, or sold it as adm'x, and whether the price obtained was more than it was worth, or not, a court of eq. will consider the debt due for the property, as a debt due the estate, and subject to a decree in favor of an attaching creditor.</p>

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

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

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

<p>Detinue.</p> <p>From the Circuit Court for Mercer Counts.</p>

<p>The bill—its object and allegations.</p> <p>The answer.</p> <p>Decree of the Circuit Court, &c.</p> <p>Objections made to the decree, as grounds for reversing it.</p> <p>Conclusion from the facts recited, that the compl’ts were entitled to a decree,and that it is not for too much.</p> <p>Interest is not, in general, allowed upon the balance found due upon a partnership account: but where the adventure for which a co-partnership was formed, was ended, and a considerable sum to which one of the partners was entitled, remains in the hands of the other, who, tho’ aware of the fact, failed to pay it over till compelled by suit, a decree for a sum equal to the principal and interest, was just and proper.</p> <p>A devise to the testator’s wife, for life, and after her death, and after the payment of the testator’s debts, and the schooling of his two children, the estate to be divided between them: held, that, by this devise, the two children took a vested remainder—the estate being subject to a charge for the payment of the debts, and for their schooling: the title vested, upon the death of the testator, in the wife for life, remainder in the children—subject to be divested, to the extent of the charges, which might, per possibility, consume the whole.</p> <p>A devise to several, of an estate to be divided among them, makes them tenants in common.</p> <p>The meaning of the terms ‘vested remainder’ defined and illustrated.</p> <p>Difference between vested remainders, & contingent remainders.</p> <p>Were it conceded that, in consequence of the terms used in the will—that after the death of the testator’s wife, and after the payment of his debts and the schooling of his son and daughter, the estate should be divided between them, the remainder would not vest until the debts were paid, and the schooling completed: still, the fact that the testator had been dead 20 years, would authorize the presumption that his debts were paid: & the fact that the son had been sometime in business for himself, as a trader, and that the daughter was married, would authorize the conclusion that they had received their schooling; and, by the performance of those conditions, the estate would be changed from a contingent to a vested remainder —a simple devise for life, remainder over in fee, which is always considered as a vested remainder</p> <p>As a remainder, after an estate for life, was assets in the hands of the heir, at common law, & is liable to be taken and sold under a fi fa. by our statute subjecting lands to the payment of debts, it is, after the death of the remainderman, subject, in the bands of his heirs, to the payment of his debts.</p> <p>A vested remainder in slaves or personalty—which may be sold, or transmitted by descent or devise—is present assets in the hands of an adm’r.</p> <p>So, it seems, are remainders in chattel interests in lands.</p> <p>A trustee, mortgagee, or tenant for life, in possession, cannot purchase & hold any adverse claim to the land, for his own exclusive benefit; such purchase will, in general, inure to the benefit of the whole title—strengthening the title of the cestui que trust &c. as well as that of the purchaser. And altho’, where an adverse claimant recovers a judg’t for the land, the tenant may afterwards take shelter under the successful claim, or purchase it for himself only, without waiting to be actually turned out of possession—the fairness of a purchase, made under such circumstances, will be subject to a rigid scrutiny; & if it appear that it was made with the means of the cestui que trust, mortgagee, reversioner &c. or with the combined means of the tenant for life and remainderman, it will be deemed a purchase for the benefit of the estate, ut supra.</p> <p>So, tho’ a judg’t for the land had been recovered before the purchase by tenant for life, for herself in fee, as there is ground to presume that she used the judg’t against the pl’tf, for the value of the improvements, and the recourse upon the testator’s vendor, in making the purchase, held, that her purchase did not divest the title of those in remainder. And-</p> <p>An evasive, shuffling answer to a call, in a bill, upon the tenant for life, who was also ex’x, to show how certain judgments for improvements were disposed of, justifies the conclusion that they were used in the purchase, ut supra.</p>

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

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

<p>Debt qui tam.</p> <p>From the Circuit Court for Rockcastle County.</p>

<p>The use of oaths not authorized by law, is contrary to public policy, and not to be encouraged or countenanced: if false, being unauthorized, there is no legal punishment for thus swearing falsely. A man’s oath that a crime committed or wrong done, was not committed or done by him, is no evidence of his innocence; nor is a man’s refusal to take such an oath—even in a large company where all the rest consent and take it—any legal evidence of his guilt. Such an ordeal should never be resorted to: proof of its result is not admissible in any judicial proceeding. Evidence that a large company had each made oath before a magistrate, of his innocence of the trespass for which the suit was brought, except the defendant, who refused, was wholly inadmissible; and having been admitted, for the jury to allow it what weight they chose, the judgment is therefore reversed.</p>

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

<p>Reference to a former decision of the same case. Proceedings after the return of the case; decree and appeal by defendant, and w. e. by complainants</p> <p>A decree, in a case of long standing, was reversed, and, in pursuance of the mandate, the cause was refered to a commissioner, to take proof, &c. He retained it one year, and then made a report, to which exceptions were filed. Two years after the return and reference of the cause, and while the exception were under argument, the defendant offered to file deposition taken a few days before ; but his affidavit did not show a sufficient excuse for not taking them before, and they were rejected : this court will not disturb the decision of the circuit judge rejecting depositions.</p> <p>Depositions (not offered in due time) were rejected; if they had been received, they would not have established all the facts necessary, to produce a different decree: no error, therefore, in rejecting them.</p> <p>Rescission—by decree—of a contract of sale; the consideration consisted of advances, to pay taxes, &c., by the vendee, for the vendor, all of which were included among the accounts adjusted in the case: there was no error in omitting to decree a restoration of the consideration thus accounted for.</p> <p>Credits claimed by T. disallowed, as he has, in effect, had them allowed, in the accounts and decree.</p> <p>Upon a rescission of a sale of land, the vendor is entitled to the entire tract, including the surplus. An allowance, by the Cir. Ct. of ten per ct. com. for selling lands, approved.</p> <p>An agent employed to locate land warrants, & sell the lands, purchased one of the warrants of his principal, located it, and sold the land; but, because he had suppressed information concerning the claim, which it was his duty, as agent, to communicate to his principal, his purchase was held to be void, and he was required to account for the proceeds of the sale made by him: he is entitled to no commissions on that sale.</p> <p>This Court determined that an agent, who had long held the funds of his principal, should pay interest on them, but not compound interest; & that he should receive interest on all advances made by him for his principal: the mode in which the commissioner calculated the interest stated, and approved—as the calculation did not, in any instance, include interest on interest, which is what is meant by ‘compound interest;’ tho’ moneys received, were considered as applied to pay off any interest that had accrued due to the party receiving them, then towards the principal — leaving the balance of principal still to bear interest: this mode of calculation is in conformity to the rule established by the act relating to partial payments on bonds &c.</p> <p>In regard to interest, courts of eq. follow the rules of law; so, where the liability is such that a judg’t upon it, would be for damages only, a decree for its enforcement, must be for a sum in solido, not bearing future interest. The act of Feb. 16, 1837, which declares that judg’ts in general, and decrees, thereafter rendered, shall carry interest, till paid, cannot be applied to sustain a decree rendered before its passage: and a decree rendered before the act, is reversed, for error in making it bear current interest; yet the new decree, to be rendered to correct the error, will come within the act, and bear interest.</p> <p>Bill against an agent for the sale of lands, &c., to recover the proceeds of sales, &c. With his answer, he filed certain bonds (which were with drawn by the complainant’s agent,) and also, abstracts of certain judgments against purchasers of the lands. The commencement of the suit did not suspend his authority to collect those judgments. But, as he might consider them under the control of the court, from the time when he filed the abstracts, he could not be made accountable for negligence in failing to collect them afterwards.</p> <p>Either party might have collected them; but it did not appear that either had; and the proceeds were not included in the decree against the agent. The decree, therefore, should have been so framed, as not to bar his liability for any money he may have received on account of the judgments. And, as it appears that he retained the titles, as security for the debts, he should be required to produce in court abstracts of the boundaries, &c., and all receipts of lawyers for the notes on which the judgments were recovered, and other documents, evidencing the principal’s right to the judgments and their proceeds.</p>

<p>Statement of the case.</p> <p>A husband has a right, during his life, to demand and receive any thing that is due to his wife as a distributee, and when received by him, it becomes his property; but upon the death of the husband, all such rights survive to the wife, and constitute no part of his assets. A man died, leaving a considerable personal estate; to a portion of which his married daughter was entitled. The adm’r, before any settlement, or formal distribution of the estate, made sundry advances to her husband, or for his use— taking his notes to himself, as administrator, for some, notes he had given to others, with their assignments, or receipts, on them, to him as adm’r, for some, and orders of the husband, on him as adm’r, for the rest. The husband died, and the adm’r of his wife’s father (her uncle) administered on his estate, also. After the death of the husband, the admin’r of both estates, took the ground, that the notes and orders of the husband thus obtained, were good evidences of debts due from the husband’s estate, to the estate of his wife’s father; and that the interest to which the widow was entitled in her father's estate, surviving to her, was still all due to her—to the exclusion of (the compt’s) the husband’s children by a former wife; and, according to this view, he had made a settlement in the county court, before this bill was filed — by those children, to correct the settlement, &c. But held, that as it does not appear, that there was any foundation for the advances, other than the husband’s claim, in right of his wife, as distributee, they must be deemed to have been payments on that account—being so much of his wife’s interest reduced to possession: not debts due from him — the notes &c. having been taken, rather than receipts, to secure a return of the excess in case the payments should amount to more than the wife was entitled to. And this view is confirmed by the fact, in proof, that the adm’r had admitted, after the husband’s death, that he had made advances to him, on account of his wife’s interest in her father’s estate.</p> <p>The acceptance of an order is prima facie evidence, that the acceptor has funds of the drawer in his hands; and an order being drawn on one who, as adm’r, held funds in which the drawer had an interest, but no other funds of the drawer, the presumption is, that it was paid out of those trust funds, though it was not addressed to the adm’r as such.</p> <p>An adm’r produces an acceptance of the intestate—on which the drawer had indorsed that it was paid to him, by the adm’r, at such a date; at which date, the acceptor was still living: the adm’r cannot avail himself of this inconsistent certificate, to entitle himself to a credit in his administration accounts; and under the circumstances of the case, it must be placed on the same footing with the notes and orders above.</p> <p>A charge in the administrator’s accounts for the amount of a store acc’t, due from the intestate to the adm’r as surviving partner, allowed; as it does not appear, that any arrangement had been made by or with the intestate, to have it satisfied out of his wife’s portion of her father’s estate in the hands of the surviving partner as adm’r of that estate.</p> <p>An ex’or or administrators cannot buy at his own sale of the decedent’s property. If he has paid out his own money for the estate, he may retain property, at its fair value, in lieu of it; and if, having such right, he bids off property at the sale, it amounts to an election to retain it; but still he must account for it, at its actual value: he cannot have the benefit of any purchase at an under-price.—The accounts of an administrator, as allowed and settled by the county court, showed a large balance in his favor; to pay which he sold all the intestate’s slaves, and became himself the purchaser, for less than the balance due him; but, upon an investigation in this suit, the balance really due, is found to be far less than the value of the slaves. In the mean time, their relative values has changed—some have had issue; some may have died; and it cannot he known which of them would have been selected, if the administrator had retained no more than he was entitled to: held, therefore, that the purchase made by him, must be deemed nugatory, the slaves still the property of the decedent’s estate, for the use of those entitled to them.—The adm’r must also account for the hire, at a reasonable rate, deducting the cost of supporting such as could not support themselves: the net hire to be set off against the debt, and its interest, due the administrator, from the intestate’s estate; for the residue of his debt (if any) he has a lien on the slaves.</p> <p>Upon surrendering slaves, the adm’r will be entitled to a refunding bond. If any that are living, cannot be produced, their value must be decreed against him. If there is a balance due the administrator, on his accounts, it must be provided for by the decree, with a lien on the slaves to secure it.</p>

<p>Bill for an injunction against a judgment by default, on a note for a parcel of leather, on the ground of fraud, in selling bad leather, as good: the question of jurisdiction waived, and decision that the proof (which is recited) fails to show that the leather was defective.</p> <p>The deft, denying the fraud, makes his answer across bill, alleging that, through inadvertence, the price of one parcel was pretermitted in the note, and prays a decree for it: demurrer: but held that, though the remedy was complete at law, yet as the subject matters of the bill and cross bill were connected, the court might take jurisdiction to afford relief.</p> <p>The dem’r not disposed of till the final hearing, and then overruled, there might be a decree upon the facts—all admitted by it; but it is proper that the def’ts should still have leave to answer.</p>

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

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

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

<p>A decree granting a divorce to both parties is anomalous & unauthorized. But this Court has no jurisdiction to revise any decree granting a divorce. But an error in withholding from a wife a proper portion of the husband’s estate, may be corrected.</p> <p>A divorce being granted to a wife, it would seem to follow that she, is entitled to alimony.</p> <p>If, under any circumstances, the repudiated wife of a man of property, should be sent forth destitute, it should not be upon a mere suspicion of criminality; tho’ that may be a sufficient reason for curtailing her allowance.</p> <p>A wife filed a bill for alimony, which led to a divorce granted to her husband, and to to her, also; there was evidence inducing a suspicion that she had attempted to poison her husband; and she, in her bill, had suggested that she would be satisfied with a restoration of the property she had before her marriage—which was but a small portion of his estate: this court decides that she shall have a decree for so much of that property as is preserved, and for the value of what has been consumed by the husband.</p>

<p>Every covenant is to be so construed as to give effect to the true intent and meaning of the parties, as they appear in the writing; and it is only where the meaning and intention are not clearly expressed, that parol testimony can be resorted to for explanation.</p> <p>Proof of a usage of trade — of a universal rule among mechanics for computing the amount of their work &c. may be admitted when the meaning, without such explanation, is doubtful; but if the language of the agreement is sufficiently explicit, full effect must be given to it, as showing the intention, regardless of usages and rules of trade.</p> <p>Pl'tf covenants to lay as many bricks as may be needed to complete the defendant’s building; and defendant covenants “to pay $8 per thousand, for each thousand brick which may be laid:” held that these terms, being clear, must prevail, uninfluenced by any evidence of a usage or custom of the trade; the plaintiff cannot recover for a greater number of bricks in a wall with doors and windows in it, than would be found by counting them, by showing that it is the usage and custom of the trade, to compute the contents of such open walls, as though they were solid.</p> <p>A usage of trade is not sufficiently proved when the witnesses speak only of “the custom of the country,” without stating how far, or how long, the custom has prevailed.</p> <p>A usage or custom of trade, to be a guide in the construction of contracts, must he consistent, uniform, reasonable, and sufficiently ancient to be generally known.</p>

<p>The indictment.</p> <p>The section of the act of 1833, (§ 10) which imposes a penalty upon any person who shall suffer faro, or any other ‘unlawful game or games,’ at which money or any other thing is won or lost, to be played in his house, cannot be restricted in its construction and operation to such games as have been specially prohibited, or designated as unlawful; it applies to and includes all games at which money or property is lost and won ; all such games are unlawful, and are sufficiently embraced by the terms of the statute.</p> <p>Review of various acts of assembly—showing that all manner of games at which money or property is lost and won, and all betting, are prohibited by them.</p> <p>The act of 1836, altering the mode of summoning juries, does not, in terms, apply to the city court of Louisville; but a jury having been summoned for that court, in the mode prescribed by that act, is no cause for challenge to the array.</p> <p>The right of challenging jurors, for cause, or peremptorily, and of seeing the persons from whom the triers are to being impaired—and it will not construction of the act—the party to be tried cannot object to the manner of summoning the jury.</p> <p>A motion for leave to introduce a witness after the examination of witnesses has been closed, is addressed to the sound discretion of the court: when the fact to be proved is not disclosed, and no excuse shown for not having introduced the witness before, his exclusion was proper. The opinion of counsel that the testimony was material, if it would justify, would not give a right to demand, its admission.</p>

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

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

<p>A note purports to be for an instalment of the purchase money, for a tract of land, and the date is the same as the date of a deed front the payee to the promissor: this coincidence is sufficient — in the absence of proof of any other sale between the parties — to sustain an allegation, that the note and deed relate to the same transaction.</p> <p>The testimony of a subscribing witness is the best parol evidence: but not better than written evidence, or facts deducible from it.</p> <p>Secondary evedence, received without objection, must have its effect.</p> <p>Upon a bill to rescind a contract for land, because of an alleged defect of title—if the contract is executory, the def’t must show that he has title; if it is executed, the complainant must show that the title is defective.</p> <p>A conveyance made by virtue of a power of attorney will be good, notwithstanding the previous revocation of the power, unless it is shown, that the purchaser had notice of the revocation.</p> <p>A power coupled with an interest, is not revocable.</p> <p>A recital in a deed of confirmation, is no evidence of the existence of the original deed, against a purchaser holding a deed from the same grantor, made before the deed of confirmation. It is but the declaration of the parties to the deed; and a party can never impair the title of his vendee, by subsequent declarations.</p>

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

<p>Choses iri action were not assignable at common law ; and tho’ such assignments were generally upheld in courts of equity, salaries, civil and military, were made exceptions to the general practice in that respect. Assignments of military pensions are expressly prohibited by the acts of Congress granting them, and are invalid in equity.</p> <p>An agreement for a reasonable compensation, for aid in obtaining a pension, may be made, and enforced; but where the agreement is for a sum so disproportioned to the service as to indicate fraud or oppression , it will be disregarded in equity.</p> <p>The terms “the first draw,” — the compensation which a pensioner agreed to allow an agent for procuring a pension—construed to mean the first annuity—not including the arrearages due by the retrospective operation of the act.</p>

<p>Bill by a husband & wife, as heirs and distributees, in her right, against an adm’r, who was a co-heir, with other heirs and distributees def’ts—for a settlement of the estate ; death of the administrator, and revival of the suit against his ex’or, who was a co heir with him and others, and his devisee ; several decrees ; an appeal by the ex’or, and separate writs of error by two different heirs.</p> <p>A suit in chancery for distribution, may be brought against an adm’r, or his representative only, or the sureties may be joined as def ts. But all the sureties should be included, if any are. An ex'or or administrator cannot complain of a decree against himself, on the ground that some of his sureties were not before the court, when there is no decree against any of them.</p> <p>The relationship between the parties, is sufficient to uphold a deed, made in consideration of love and affection, from a husband and his wife, to the husband of her sister.</p> <p>Tho’ a chose in action is not assignable at common law, a court of equity will uphold the assignment, as being the declaration of a trust; and will enforce the claim assigned, by suit in the name, as well as for the benefit, of the assignee, as the cestui que use. And courts of law, though they do not (independent of statutes) recognize any transfer of the legal title, will pretect the rights of the assignee, against any other party, having notice, express or implied, of the transfer.</p> <p>The acceptance of the transfer of a chose in action, not made to obtain aid in upholding and prosecuting a suit upon it, is not maintenance.</p> <p>A party prosecuting a suit upon his own right, may extend his interest in the thing sued for, by purchasing the interest of another in the same thing, without violating the laws against champerty and maintenance.</p> <p>A contract is not champertous, unless it embraces some agreement to allow part or parcel of the thing to be recovered, as a compensation for recovering it.</p> <p>A distributee who has transferred all his interest to a co-distributee, without recourse, is a competent witness for the later.</p> <p>An adm'r or ex'r is entitled to refunding bonds, before a decree for distribution is enforced against him: and the assignee of a share, must give such bond as would be required of his assignor.</p> <p>A decree cannot extend to matters not in the pleadings. A decree for partition of land not designation in the bill, (for the settlement of an estate) cannot be sustained.</p> <p>There may be a decree against an adm'r (as such) when there are no other deft's. But all the devisees must be brought before the court, if a decree is sought against any of them.</p> <p>A lunatic distributee made a defendant to a bill against the ex or of her father’s adm’r, for a settlement of the father’s estate, answered by her committee, and the answer, made across bill, showed that the adm r had been her committee, and had slaves &c. of hers in his hands, at the time of his death, and prayed for an account and settlement of that trust: it was erroneous to dispose of the cross bill, without decreeing the settlement prayed for. The proof being insufficient for the foundation of a final settlement and decree the matter should have been referred to an auditor, to take further proof and report. But the proceedings on this cross bill, should not delay other branches of the cause; they might progress to a final decree, while the cross bill was retained for further preparation.</p> <p>The allegations and proofs as to the accounts adverted to, with suggestions, that a reference to an auditor, for proof to be taken & c. will be necessary.</p> <p>Certain allegations of the bill referred to, with opinions that the proof (not stated does not sustain them.</p> <p>A son received money for his father, 20 years before the bill was filed, and the bill demands an account of it, as a debt due the father’s estate, not an advancement: the lapse of time alone justifies the presumption, that it was paid over, as alleged in the answer.</p> <p>A citizen of this state, being entitled to effects which had belonged to his deceased father, in So. Ca. told his two sons, that if they would go and get them, at their cost, they might have them, and one of them, at the expense of both, did so: held that the value of the property, after deducting all expenses incident to its recovery, must be deemed an advancement to the two sons.</p> <p>A son having collected $500, on account of his father, was directed by him, to use it in building a house: this sum (so far as it is not accounted for by the son, as adm’r,) must he considered as an advancement to the son, or sons, who owned the land on which the house was built.</p> <p>The adm’r sold certain cattle which he claimed as his own: but held, upon the proofs, recited—that they were the property of his father, the intestate.</p> <p>Certain stock was claimed by the adm’r, as being half his, half the property of the intestate: the evidence stated, & held that it does not justify the conclusion that more than half belonged to the intestate.</p> <p>A claim against the estate of the son, who was adm’r of his father, for the pro needs of certain property which he sold, in his fathers life time, with the circumstances proved in relation to it, stated; and held, that they are sufficient to show that the son had a right to the property.</p> <p>Directions for stating and settling the accounts between the estate of the decedent and his administrator, and the ex’or of that adm’r, and with and among the heirs and distributees of the intestate.</p> <p>A county court settlement of an admr's accounts, made after the commencement of a suit in ch y for a settlement, is not regarded in the chancery suit.</p> <p>Suggestions are made by this court, as to the settlement of an estate, which are not intended to be conclusive—as the proof may be changed after the return of the cause.</p> <p>A pl‘tf in error, tho’ he may show that the decree, settling an estate, of which he complains, is erroneous—yet failing to show that a correct settlement would be better for him, the decree is not reversed on his we and he cannot recover, but must pay, costs.</p>

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

<p>The rejection of a deposition cannot be ground for a new trial, unless it appears that what it proved, was material; & this court cannot decide that it was so, unless the evidence adduced on the trial, is in the record.</p> <p>Depositions in a common law action, being copied into the record, is no evidence that they were read or offered on the trial: a bill of exceptions is the proper instrument to show what evidence was adduced, heard, or and offered and rejected.</p> <p>The affidavit of a party (in his motion for a new trial,) is not evidence that a deposition was offered, or rejected, nor of the grounds of the rejection: these are matters for a bill of exceptions.</p> <p>The decisions of the Court below, are presumed to be right, unless the record clearly shows the contrary.</p>

<p>The fee of a justice of the peace for a copy of a record, is 1½ cts. for every twenty words—by the act of 1819 (S. L. 694,) which denounces a penalty of $15, for charging, or taking, a larger fee and by which the act of 1806 (S. L. 890,) which allowed 50 cents for a copy, is repealed.</p> <p>A statement of the charge for a copy of a justice’s record, at the foot of it, signed by him, is a fee bill, within the meaning of the act of ’98 (S. L. 386, § 14.)</p> <p>The limitation to a suit for the penalty for an improper charge in a fee bill, is 5 years from the time the fee bill is taken in.</p> <p>The plaintiff in a penal suit must show that it was instituted within the time limited.</p>

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

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

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

<p>The bill—asserting a pre-emption to land entered by def’t.</p> <p>The answer—denying the jurisdiction of the court, and the complt’s right.</p> <p>Facts—and questions stated.</p> <p>The act of 1820, ‘ to provide for laying off the lands west of the Tennessee river, into townships and sections ’ directed that the townships shall be 6 miles square, divided into sections of 640 acres each, and that, half a mile from the corner of each sec. trees, posts, or stones, should be marked for the corners of quarter sections. But the sections, as actually surveyed, vary in quantity, and the objects marked for corners of quarter sections are not always to be found. Where those objects can be found, they must determine the boundaries of the quarter sections; where they are missing, and their places cannot be discovered, the boundaries of the quarter sections must be established by dividing the section, by lines parallel with the lines of the section into four equal parts: so that, in a section which happens to contain 696 acres, a pre-emptive right to a quarter of it, embraces 174 acres.</p> <p>“It shall not be lawful for any person, within 12 months after the passage of this act, to enter any quarter section, or fractional or sec. of land which has been improved by any actual settler in the land district west of the Ten. river at the passage of this act.” S. L. 1064. Held that this act does not include all lands in the district which had been improved by any person residing there, but applies only to the actual settler upon the land which he has improved: and that the improvement to which alone the act applies, is that upon which the improver is settled. And, tho’the pre-emptive right given by the act, must be restricted to the improvements of the occupant, it is not restricted to the quarter section on which his dwelling may be; the improvement or settlement will include the whole farm, with all its appurtenances.—And any ‘ improvement, however small, is within the protection of the act, if connected with the settlement & used in its enjoyment.</p> <p>The term ‘improvement' - a very comprehensive term, as used, in the legistation of this state — defined.</p> <p>The intention with which an improvement was made, is not material, as regards the right of preemption allowed by the act 1831 (S. L. 1064) ‘to protect the actual settlers west of the Ten. river.’</p> <p>A settler on land west of the Ten. with a pre emption, has an inchoate right, but has no legal title; and can obtain none when the land has been entered by, and patented to, another person: the remedy is in equity.</p> <p>Tho’ the act ‘to protect the set-tiers west of the Ten. river, declares that entries made contrary thereto, shall be null and void— that provision is for the benefit of the settler. He may waive his right, and make no entry within the time allowed him: in that case, as none but him could complain of an entry made by another, a patent obtained by another, it seems, would confer an indefeasible title. And if an entry is made and a patent obtained in violation of a settler’s pre emption, and he, by bill in eq. can draw to himself, the title so obtained, it might save a resort to a circuitous remedy. And—</p> <p>Tho’ the entry is void, by the terms of the act, the patent is not—and query, whether the Receiver and Register could be compelled, by mandamus, to receive an entry, and issue a patent, for land which had been entered before: if they could, the first patent, the patentee being no party to the mandamus, would still remain in full force. All these difficulties, the Chancellor could obviate, and could settle the whole controversy—decreeing that the money paid for the land, by the patentee, should be reimbursed to him, by the settler &c. The subject is therefore peculiarly fit for chancery jurisdiction.</p>

<p>The surety in a delivery bond, may be relieved in a court of eq. from the consequences of a forfeiture of the bond, where the sheriff has refused to receive the property it was taken for, when it was duly tendered to him, according to the terms of the bond—the surety being held responsible for the value of the property, so far as it was subject to the execution. And—A tender of the property at the time and place of sale, so early in the day as to enable the sheriff conveniently to proceed with the sale, or dispose of the property, according to law, is a substantial compliance with the bond, tho' it may be past the specified hour of 12, by the sheriff s watch.</p> <p>A partial compliance with a forthcoming bond, or a tender of a part only of the property for which it was taken, will not save the obligors from a forfeiture, and consequent liability for the whole debt: nothing but a delivery or tender of the whole, or enough to pay the debt, or a satisfaction of the ex’on in a different mode, will exonerate the surety. And when the bond is once forfeited, by a failure to produce the property, or some material part of it, a court of eq cannot relieve the surety from his legal liability, unless the failure, not with standing the bona fide efforts of the obligors to comply with the bond was inevitable</p> <p>A comp't cannot have relief in eq. upon mere proof, without allegations in his hill, to which the proof can apply. The allegation is, that, to discharge a delivery bond, the horse for which it was taken was tendered, &c. but as the bond was for a horse, saddle and martingal , a tender of the horse only, did not save the forfeiture; and, tho’ the proof may show that, the other things were tendered with the horse, as the bill does not allege it, there can be no relief against the consequences of a forfeiture of the bond.</p> <p>Tho’ a court of eq. may, under some circumstances, relieve against the consequences of the forfeiture of a delivery bond—it cannot cancel the bond, by its decree.</p>

<p>From Bracken County Court.</p>

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

<p>The five actions.</p> <p>Pleas, presenting the principal question in all the cases.</p> <p>An act of 1820 declared (in effect,) that no sheriff, or other officer, should receive from any clerk &c. whose fee bills authorize distress, any on the Bank of the Com'th fee bills, for collection, within two years after they became due, unless a duplicate list, with a certificate that notes on the Bank of Kentucky Com’th or its branches, might be received in payment of the fee bills—was delivered with them; & that fee bills so endorsed, might be discharged in such notes, and that the officer might distrain for them: held, that, tho’ this act, literally, went no further than to prohibit sheriffs and other officers from receiving fee bills without the bank note certificate, for collection, after they be bills (tho’ they come due—its object and intention were to prevent the collection of fee bills otherwise than upon the prescribed conditions; and consequently, when the officers were not authorized to receive the bank notes, they were prohibited from collecting the fee may have received them,) within two years after they became due.</p> <p>The act (supra) was not intended to be restricted in its operation, to fee bills that were due at the time it passed: so construed it would be unconstitutional. It is general, applying to all fee bills issued after its passage; and, in that view, is not unconstitutional.</p> <p>An act of 1796 (Dig 577 § 28,) provides that no suit or justice 3’ warrant, shall be maintained for clerk’s or surveyor’s fees, unless they have been returned nulla bona an act of 180S, (Dig. 578 § 4,) provides that theres hall be no right of distress for fee bills beyond the year in which they became payable, unless they have been sent out for collection, and returned delinquents:-It was contended, that, if the act of 1820 (supra) is construed as prohibiting the sheriffs from collecting fee bills within two years, when he has no authority to take the bank notes, the three acts, taken together, would forever deprive the clerks &.C., of all coercive means of collecting their fees, except in bank notes; and that, therefore, the act of 1820 should not be so construed. If such were its true construction and operation, still the Courts would be bound to give it effect: for it is in the power of the legislature to regulate the fees of officers, prospectively, and to make them payable, absolutely, or conditionally, in bank paper, or any other commodity.-But such is not the true construction. By the act of 1820, the other two acts were modified: their operation upon fee bills not made payable in the bank paper, was suspended for two years—at the expiration of which term, tho fee bills (duo two years before) might be listed for collection, in specie; and the acts of ’96 and 1808 would apply to them as tho’ they were then just due.</p> <p>An act of 1811. prohibits suits vs. ex ors &c for six months after they qualify; and it was held, that the 6 mo’s should not be included as part of the time which, by previous statutes, bars the actions: and so , the act of 1811 modified the acts of limitation, without repealing them.</p> <p>The sheriff had no more authority to collect the fee bills, which he was prohibited from receiving—by voluntary payments , than by distress; and if he did receive and collect them by voluntary payments, the proceeding was unofficial & his sureties are not responsible on account of it.</p> <p>The legislature has power to prescribe and fix the terms and conditions upon which fee bills may be collected, and to-prohibit their collection, unless the terms & conditions are complied with. A statute which prohibits sheriffs from receiving fee bills from clerks for collection, does, in effect, prohibit the clerks from delivering them to the sheriffs for collection ; and if they are delivered and received contrary to the statute, both parties are in pari delicto: a clerk has no right of action upon such unlawful delivery. For—</p> <p>All contracts against the policy of the law, the provisions of a statute, or the dictates of morality, are void; and that fact may be pleaded in bar of any action upon such a contract.</p> <p>It has been decided, that to make a sheriff liable on his bond, for fee bills collected by him, the relator must show that the fee bills were his, and such as the sheriff was required by law to collect, 2 Bibb. 220; 3 Mon. 394. And that a sheriff is not liable for fines and taxes delivered to his deputy for collection, but which the sheriff was not bound by law to receive. 4 Bibb, 353. And—</p> <p>In a case upon a sheriff's bond, for his failure to account for fee bills collectible in bank notes only, this court treated the delivery of the bank note certificate required by the statute, as an essential part of the plaintiff's evidence, & reversed the case for a defect of proof on that point. 3 J. J. M. 183</p> <p>The official delinquency which makes a sheriff and his sureties liable, is a failure to do what the law enjoins: not what it does not enjoin; still less what it inhibits.</p> <p>The pleadings—Action on a sheriff’s bond, for a breach in failing to account for fee bills put into his hands for collection, at a time when he was prohibited from receiving them,unless there was delivered with them a list with a certificate indorsed, that notes on the bank of Kentucky or its branches, or notes on the bank of the Commonwealth or its branches, might be received in payment of all the fee bills, or unless they had been due two years:</p> <p>Plea that such list and certificate were not delivered, and the fee bills not due two years before &c. Replication, that a list was delivered with a certificate endorsed, that notes on the bank of the Commonwealth of Ken. might be received &c: the replication is bad, for want of an averment as to the notes of the bank of Ken. and its branches. But—</p> <p>The replication being demurred to the demurrer must be applied to the first error on the pleadings.</p> <p>The 1st count(in the action supra) recited in the text, is good.</p> <p>A count the 2nd) without an averment that the fee bills were collectable by distress, is bad.</p> <p>If the fee bills were delivered when first due, to be kept by the sheriff two years, and then collected in specie, qu. whether he can be made officially liable for them. If he can, it is clearly necessary to aver that he remained in office—and if the fee bills were delivered to a deputy, that he continued to be the dep. of the same sheriff—until the two years expired, & for such further time as was necessary to make the collections. And, as the presumption is that the sheriff went out of office at the end of two years from his appointment, if he continued in office longer, it must be averred.</p> <p>A dem’r that applies to a whole declaration cannot be sustained if there is any one good count</p> <p>Good and bad counts: tho’ the plea may apply to all, if it is good for any, it must he sustained.</p> <p>In an action on a sheriff’s bond, for fee bills collected, one count avers that, when they were placed in the hands of the deputy, they were collectible by distress—an essential averment; the plea avers a state of fact under which they were not, when delivered collectible by distress: the plea is good. If the fee bills became collectible afterwards, while the deputy remained in office, the pl’tf must aver and prove it.</p> <p>Suggestion by the Ch. Jus. of strong doubts whether, if the sheriff was orally directed by the clerk to collect his fee bills in the bank paper, the sheriff ought not to be held officially responsible for what he did collect, tho' the list and bank note endorsement, required by the statute to justify a distress, were not delivered.</p>

<p>A county court in Va. having appointed a guardian for an infant whose father was living-this court, in comity, presumes that the appointment was legal, and sustains a payment made to the guardian, as a good payment to the infant.</p> <p>An executor is not allowed to trade upon, or make profit for himself, out of the estate in his custody, nor out of the rights of those interested in it: a, contract by which an executor buys the ward’s interest in the estate, of his guardian,will not be sustained, or respected ; but the sum paid for the purchase will be deemed a payment, on account of the ward’s claim, for which the ex’or will be entitled to a credit, with interest on it if it was paid before it was due.</p> <p>A legatee, by his agent, demanded his legacy; the ex’ors resisted, upon the ground that one of them had bought the legatee's interest, by a contract with his guardian; but the executors, and the agent, agreed on a compromise— in effect, that the ex’ors should bring suit upon a refunding bond which they had taken upon paying a co-legatee whose right was doubtful, and, if successful, should pay half the sum recovered to the legatee, in full satisfaction of his claim; if defeated, the ex’ors to pay the costs, and the legatee to relinquish his claim: Held , that such an agreement—obtained by the denial of a just debt—is not to be favored in equity; and as it is, by its terms, but an accord without satisfaction, the executors, to entitle them to use it.as a bar to the legatee’s claim, must show—either, that having recovered in the proposed suit, they have paid over half the proceeds as agreed, or that, having prosecuted, the suit in good faith and with diligence, they had failed in it, without fault on their part; and nothing of all this appearing, though the agreement was made five years before the legatee brought his suit, and ten years before the hearing, he is entitled to a decree for his legacy, deducting (upon the principle above) the sum, with, its interest, paid by the executor in his purchase made of the guardian.</p>

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

<p>Relief against fraud or mistake in a sale, may be had in chancery, tho’ the contract was executed.</p> <p>Where a vendor, to whom the purchaser is indebted, is charged with fraud in the sale, and with insolvency also, a court of eq. may take jurisdiction of the case, to afford relief, and decree a set-off.</p> <p>A party complaining of a fraud in selling him land which the State [Illinois] had previously sold for the taxes, must show that the law under which the tax sale was made, was strictly complied with.</p> <p>Depositions taken in another State, before one J. P. only, are not admissible. They may betaken before two justices: the law does not give the authority to one. To show that a sale of land in Ill. for taxes, was regular, the law of that State, under which the sale was made, should be proved, as the best authority for the sale.</p> <p>The Chancellor relieving against a fraudulent sale, may have the damages assessed by a jury.</p>

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

<p>Appeal from a judg't of a J. P. brought to the circuit court in the time and manner prescribed by law; but that court, being satisfied that it had no jurisdiction of the case dismissed it; and the pl'tf withdrew the note. The court of appeals, in revising that decision, incline to think that they must determine the question by what remains in the record—tho' it may be that it the note was still there, it would show that the debt was for more than $50, and that the justice had no jurisdiction of the case; and as the judg't is for $50, and is upon a note, the justice, originally, and the circuit court, by appeal, seem to have had jurisdiction. Sed quere—and questions, upon the supposition that the J. P. had not jurisdiction.</p> <p>As the pl'tf in a warrant is not confined, in the trial of an appeal, to the identical cause of action on which he relied before the J. P. it seems to be premature for the circuit court to determine that it has no jurisdiction of the case, before the pl'tf has exhibited the cause of action on which he will rely in the trial of the appeal.</p> <p>Where, upon the trial of an appeal in circuit court, it appeals that the J. P. had no jurisdiction of the cases—the circuit court should not dismiss the appeal, at the cost of the appellant, (by which the parties would be remitted to the judg’t of the J. P.) but should dismiss, or abate the suit, for want of jurisdiction—thereby vacating the judg’t of the J. P. and give a judg’t against the plt'f. for the costs.</p> <p>The parties to an appeal from a J. P. stand before the circuit court, as they stood before the J. P. The pl’tf in the warrant is actor upon the trial of the appeal; and must make out a case within the justice s jurisdiction, and within the appellate jurisdiction of the circuit court, and conformable to the warrant.—Failing in either point, a judg’t must go against him, according to the nature of the case—which will include the costs.</p>

<p>Statement of the case.</p> <p>A testator, who died leaving four children, all infants, directed a sale of his personal estate, for the payment of debts &c., the balance, if any, to go to the education and support of his children; his lands to be rented out—the rents to be equally divided among his children; his slaves to be hired out—the hire and any surplus money from sales, after schooling and clothing the children, to be put out at interest till the youngest came of age, and then an equal division among them, of the land, slaves and money left: held, that these expressions in the will should not be taken according to the strict letter, and as constituting separate bequests for different objects; but that the whole should be considered together, liberally and consistently, and construed as devoting the surplus of the personalty, the rents and negro hire to the support and education of the children (the whole being scarcely sufficient for that object;) the residue of the funds, if any, and the interest made on it, to be divided, at the majority of the youngest child. In that way, the guardian had a right to apply the rents of the farm &c., as well as the other moneys, and is entitled to a credit for them so applied.</p> <p>A court of eq. will sanction such uses of a ward’s funds, by his guardian, as it would have directed, if a previous application had been made. And, though the will may direct the rents to be lent out till the youngest child comes of age, & then divided among the children, the court will direct that they shall be applied to their support and education, in the mean time, if they are required for that purpose.</p> <p>Guardians appointed by the county courts are required to settle their accounts annually—adding, each year, the interest on the funds in their hands, to the principal. But the act does not apply to testamentary guardians , as they are not within the jurisdiction of the county courts: they are accountable in courts of equity, as other trustees are; and, in like manner, liable for what interest they make upon the funds entrust ed to them, or which they may be presumed to have made by faithful and prudent management.</p> <p>Rests should be regulated by the circumstances of each particular case. In this—where the testamentary guardian cannot be presumed to have made compound interest, but did probably collect interest occasionally, a rest at the end of each three years, to add the interest then in his hands, to the principal, is deemed proper.</p> <p>The guardian should be allowed for clothing for the wards (there being no suggestion that they were not clothed,) though there is no regular account of it. And for their board also, when it appears that they were kept at school, tho’ they were old enough to earn, their board.</p> <p>A testamentary guardian was not only, as such, a trustee in eq. but was the grand father of the wards, and had made no charges against them, for his personal services: nothing should be allowed in a decree against his ex'or, on that score. His actual expenses, & compensation for the board and clothing only, should be allowed.</p> <p>A testator having requested that the guardian appointed by the will should settle with the county court, his settlements there made, are prima facie evidence in a suit in chancery.</p>

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

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