Volume 36 — Kentucky Reports

<p>Covenant.</p> <p>From: the Circuit Court for Hopkins Countt.</p>

<p>From Madison County Court.</p> <p>Statement of the case'</p>

<p>A note payable on demand does not hear interest till a demand is made, 7 a judg't for the debt with interest from the proof of any de“erTOnenusSand the error is not cured by remitting the interest on the record, at a subsequent term when the power of the court over the case was at an end.</p> <p>A son-in-law is not exonerated of a debt due the father in law, by a manifestation of intention, on the part of the latter, during his last illness, to cancel the debt— the intention not being executed, and the circumstances not amounting to a donatio causa mortis.</p>

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

<p>From the Louisville Chancery Court.</p> <p>Chancery.</p>

<p>An emancipated slave may maintain a bill in ch’y, to establish a right to freedom, and to be quieted in its enjoyment; & wlie ther the right is claimed by deed of'emancipation, or by will, is not material.</p> <p>A copy of a will having beennsed in the court below, without objection, the regularity of its authentication cannot be enquired into here.</p> <p>The fact that the date of a will is subsequent to the time when the testator died, does not invalidate it — a mistake being manifest from the date and proof of a codicil.</p> <p>The right of disposing of property (slaves or any thing else,) is appurtenant to the ownership. The owner of a slave may sell or emancipate it, by act,or by will —unless some municipal regulation of his country prohibits it; and he who denies the right, or claims against it, must show the prohibition.</p>

<p>The mere insolvency of a party entitles his debtor to a set-off in equity, of across demand, which wouldnot otherwise be an available set-off.</p> <p>The insolvency the time of the assignment, has been held to entitle the obligor equity to set off, in equity, of a demand due him or, against an innocent assignee, of resulted from the in‘ solvency alone.</p> <p>An insolvent, oor ditor may he°re'stl'auied,mchanlecting his debt, t^'damageiTdte from him to his abe® tho’ the denected.</p> <p>Where an insolvent more persons jointly the creditor of equty will not permit the insolvent debtor to collect the debt dne him; hut will, at the instance of his joint creditors, compel a set off of the debt the one owes him, against the debt he owes that one with others — notwithstanding there is no connection, nor mutuality in the demands. And—</p> <p>If it were doubtful whether joint creditors could enforce the setofl'iusueha case, still, when another creditor of the insolvent debtor comes with a bill to attach the debt due him, there can be no doubt of the right of such garnishee to set up the debt due to himself & coobligees jointly, as a rebutting equity, to defeat-the attachment.</p> <p>The statute sub-payment of debts, upon a return of nulla bona, requires that ail Kn bebroi before the court, decree shall be made as shall be equitable. Itauthorizes no decree. that shall deprive a party of any set off, re-butter, or other equitable right. Any equity that could bo made available against the execution debtor himself, to defeat his' claim upon a garnishee, would he equally available against the bill of the attaching creditor.</p>

<p>Question, whether a Seed of the .land of a corporation, executed only by the several sig ■ natures & scrawls of the Trustees (no other seal,) is sufficient to pass the title.</p> <p>Location of the land in contest, by the county court of Barren county — in pursuance of an act of assembly; and patent issued to the Justices of the county court.</p> <p>Certain persons incorporated as “the Trustees of Glasgow Academy,” with power to take land by purchase or donation, and to sell and alien the same; andto sell A of the lands theretofore granted to the academy. And, at a subsequent period, they were authorized to sell all the academy lands; which gave them power to sell that in controversy.</p> <p>The Trustees of an academy be-with power to pass the title only by deed under the corporate seal. But held that, the act of '97, which sanctions the use of scrawls, or "acrolls" and makes thorn valid as seals, applies to corporations — as the so in statute apply to and include a corporation; a corporation may, therefore,use a scrawl for a seal,as well as an individual. And so — held, that, where a majority of the trustees of Glasgow Academy executed a deed purporting to.be the deed of that corporation, and signed it with tlieir . several names, with a scrawl to each, without specially designating them as their individual seals, & it did not appear that the corporation had any regular seal — these scrawls must each be taken as-a seal of the corporation — the repetition of it on the same-deed, not being a matter of any importance.</p> <p>The conveyances made by the trustees of' Academies (6000 acres havingbeen granted for the use of an academy in each county,) have generally been by deeds signed by the several trustees,rvith scrawls to their signatures, (not by any other corporate seal:) to declare such conveyances invalid now, would be productive of infinite mischief.</p>

<p>A declaration on an administration bond, sets ont a judgment for the debt, against the adm'rs, with a return of nulla .bona, and also, a judg't against them personally, for a devastavit; but does not aver the non-payment of the 'latter: the want of that averment is a fatal defect.</p> <p>Plea that the securities were released by the county court ¡replication that after the judg’t for the debt, but before the sureties were released, theadm'r wasted the estate: this rep’n is good on dem’r. -But, as the dem’r goes back to the defect in the dec'n, it must be sustained, tho’ the rep’n is good.</p>

<p>A party sells land, by executory contract, & dies. His vendee was entitled to a general warranty; but a deed by the heirs,with warranty to the extent of real and personal estate descended, is a sufficient compliance with the contract on their part. The administrator cannot be required to join in the warranty; & his warranty would only be available to the extent of the distributable fund.</p> <p>A decree, for a title, against persons described as heirs, isnotsufficient, in a chain of title, without proof aliunde, that they are the heirs and only heirs of the person last seized; no more than a deed would he, in which they were so described, Without proof of the fact.</p> <p>A suit is brought for a title which a deceased party was bound to make. His heirs, attempting to comply with the-contract, obtain-a deed to themselves, as heirs,, in which . one grantee is named who is nó party to the suit: this omission not accounted for, a deed by the rest, is insufficient.— The complainant should havemade the omitted heir a party, or his-heirs, if he was dead — unless his co-grantees were his heirs, and in. that case, the record should show it.</p> <p>A decree against heirs, compelling them to make a ti tie their ancestor was hound for, be ing reversed,time is to he allowed-them for further preparation.</p>

<p>The County-Courts of counties on the river Ohio, are authorized, by, statute,, to establish ferries across that river, ‘when they may by them be deemed necessary:’ provided no ferry shall, be-granted within a-mile and a half of one previously established; ‘unless it be in a town, or necessary in consequence of an impassable stream putting into the Ohio, or opposite to some established ferry in the Ohio State.1 And, as thisjproviso is for the benefit of established ferries— whenever any new ferry is applied for, at a point to which the proviso does not apply, the owner of any previously established ferry, whose franchise may be afiected by the grant, has a clear right to oppose it, and to appeal to the court of appeals, if the decision Í3 against him.</p> <p>A ferry is a fran.chise incident to the land; the establishment of a ferry across the Ohio, is expensive, &. the grant is founded on a valuable consideration; andtho’ it does not imply that there shall beno other’ similar grant in any event,it does imply that no subsequent grant impairing its value can be made, unless the pub-lie interest requires it. And—</p> <p>Tho’ the statutes vesting the County Courts with power to establish ferries across the Ohio, give them an extensive discretion; those courts are hbt intended to be the only organ of the State, or ’ the final arbiters under all circumstances. The discretion allowed to them. — even when exercised in relation to ferries in towns, or other places with in the above proviso, is of a quasi judicial character, and subject to the revision and control of an appellate tribunal.</p> <p>Tho’ the owner of the land at any particular point on the Ohio river, is the only person’ entitled to the grant of a ferry there, he has no right to demand such grant, unless the public convenience requires it. And, though the grantee of a ferry in a town on the Ohio, cannot claim an exclusive right inconsistent with the public inierest, he may object to the establishment of one where the' public interest will not be promoted by it: and in either case, the decision of the county court is subject to the revision and control of the Court of Appeals. But—</p> <p>The discretion of the county courts being, by the statutes, extensive, will be controlled by the court of appeals, only in cases of palpable abuse.</p>

<p>A sale of goods becomes absolute — the property vested in the buyer, and at his risk, as soon as the bargain is concluded, without actual payment or delivery. And this principle is applicable where the sale is in barter, or an exchange. Eut— The seller may retain the property (for his security) till the price is paid;and tendered3 iwhere the bargain does not Require a delivery without it,) the buyer can maintain no action for the goods; and if the trade is an exchange, neither party can sue for what he wag to get, without de livering, or tendering, what he was to give. But whore there is credit given, or the terms of the purchase are such, that an obligation to deliver without payment, must be implied, and it appears that the buyer has complied with the . ,. t terms on hispavt, or has offered to do so, he may maintain an action to recover the possession of the thing he bought, or traded for. So, where two men, each owning a negro child, agreed to swop, but, the children being small, were left with their mothers, till one died, it is held, that, at the time of the bargain, there was a transfer of property and risk (though not of possession), and thenceforth, the_ possession of each was a bailment; arrd he who is in possession of the liviiw child, is liable to the action of the ether for it, without any tender, or act on the part of the latter.</p> <p>Where a condi-tion becomes impossible by the act of God, the obligation is saved. And this .principle would apply to the case .supra.</p> <p>Proof that a plt’f in detinue, is adm’r, is notnecessary, where he counts on the intestate’s posses sion, unless it is • denied by plea.</p>

<p>A devise, or legacy, lapses, by the death of the devisee or legatee in the lifetime of the testator — of necessity; for where there is no devisee or legatee, there can be no devise or legacy: the enquiry, therefore, generally is, whether the will gives the estate, upon such contingency, to any other person.</p> <p>Where a devise is ‘to A. and his heirs,’ or a legacy is ‘to A. and his executors,’no other intention is indicated, than that A. shall take an interest transmissible, at his death, from him, to his heirs or executors;and as this cannot be if he dies in the lifetime of the testator — if there is no provision 'in the will for that contingency —there will be, in fact, no devise or bequest.But— Where it is plain that, the testator intended, that the heirs or ex ors of the devisee or legatee should take the bequest in ease of his death before it vested in him, it will not lapse: the heirs or executors will take it — not as such, but directly from the testator. So ■</p> <p>Held,that where a testator, who had devised land to his son and his heirs, and appointed him executor, after the son s death, added a codicil— which must be taken as part of the will, and as giving it the date of the codicil— in which he refers to the death of his son, and, without making any other disposition of the land, appoints otlier executors— the intention that the son s heirs should take the estate under the will, was sufficiently manifest, and the devise not lapsed.</p> <p>Heirs may take as purchasers, under a will, by that general appellation.</p> <p>Every will, or other instrument, shall be so construed that it shall rather stand than fall, if such construction can reasonably be put upon it.</p>

<p>The failure of a sheriff to return the value of property replevied, as required, by the 3d sec. of the act of 1830,isno cause for quashing the writ. That section applies only where a stranger to an ex’on replevies property taken under it, and is only directory to the officer for the security of the ex’on creditor— who may make She .officer aecountable for his failure to comply with the act.</p>

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

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

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

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

<p>Chancery.</p> <p>From the Circuit Court for Warren County.</p> <p>Statement of the case.</p>

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

<p>Decisions ofinfel'ior courts made in tiie exercise of their discretion in matters of practice, are not overruled upon blight grounds ; but when they violate)aw,orthe essential rights of parties, they may be reversed.</p> <p>The law directs how causes are to be docketed, and the time for pleading. They should be called in regular succession — not taken up out of turn; and no party should be required'to go to trial, or to plead, unÚil' his cause is ’reachedin the reguiar progress of 'business ;the older causes being "tried,--or continued, or deferred 'to the end of the docket.</p> <p>When,'in consequence of an extraordinary number of continuan‘ees, a surprising progress is made in a docket, ‘the court should grant reasonable indulgences to litigants caught unprepared.</p> <p>A duf t moving for a new trial, •upon the ground that, in consequence of causes being merely pas sed over, he was seaught unprepared, and ruled into trial unreasonably, need not show that he. had made any preparation, or that a different result would probably ocur on another trial.</p> <p>If any part of the-consideration of a contract is illegal, or against sound morals, or public policy, the whole is void: Buf'the caso an executrix who, upon receiving a promise of marriage, compromises a suit which aho had! instituted in her fiduciary character, is not within the principle.</p>

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

<p>Assumpsit, and Arbitration</p> <p>From the Circuit Court for Montgomery County.</p> <p>Statement of the controversy.</p>

<p>Statutory provisions giving motions in favor of sureties, against co-sureties-</p> <p>Under § 3 of the act of 1812, concerning securities, whenever a judgment is recovered against several sureties, without theprincipal, and one of the sureties has paid the debt, a motion • will lie in his favor, against a co surety, for the share of the latter, wbe ther the principal is solvent or insolvent; — and, where there is a judgment against the principal and sureties, and the principal is insolvent, either of the sureties, having paid off the judgment, may compel contribution from a co-surety, who, as the judgment is against him also, ought to have paid his e-qua] share.</p> <p>By the ancient wS noltapikd promise of con-co suretíesT10 m courts of equity only, could they have the bur den distributed. But now, since the principles of the civil law, as practised upon by courts of equity, in this respect, have been adopted as part of the common law, it does imply such promises — which may be enforced by actions of assumpsit. And herein, courts of law, and of equity, hava concurrent jurisdiction. But—</p> <p>At law, contribution among sureties, is according to the number bound; in equity, the insolvent are excluded, and the burden made equal among those only who can. pay.</p> <p>Indebitatus assumpsit lies only upon a promise to pay money, or its equivalent; & where one of several sureties has satisfied the debt, without advancing any money, or any thing equivalent, the law does not imply any promise by a co surety, to pay money for contribution: the only remfedy at law is by a special action on the case,in which the recovery will he according to the value of the property paid & received in satisfaction of the debt. But where a surety has given his own separate obligation which is received as a good and valid payment, by which the security debt is extinguished, it seems that he may maintain indebitatus assumpsit against a co-surety for contribution. And held that, where one of two sureties whose principal was insolvent, had satisfied the judgment which the creditor had recovered against them and the •principal, by giving his own bond and mortgage for the amount, thereby ^extinguishing the joint liability, he may sustain a motion under the act of 1812, against his co surety for his half of the sum thus paid.</p>

<p>From the Circuit Court eor Fayette County.</p> <p> Agreed case. </p>

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

<p>Chancery.</p> <p>From the Circuit Court eorvClarke County.</p>

<p>Devise to a wife, a certan amount of the testator’s lected by her, ‘at the same rate’ at which he had estimated advancements made to other children; which were much above the then current prices.— As it was obviously the testator’s intention to. give to his wife and each of his children, the same sum in property, at its intrinsic value, regardless of casual fluctuations in prices — the widow having selected for herself, and for her son, certain slaves, at a time when they were higher than when the advancements were made, they were not entitled to have them at what they would then have been worth; nor was it right to charge them at their full value at the time when they were selected, still less to charge them as much above their then value as the testator had estimated the advancements above their value when they were made. The testator having advanced a slave actually worth $400, and charged it at $580, the widow should be charged $5S0 for one selected by her, which was of the same value as the one advanced would have been at the same time, though that which she selected was then worth seven hundred dollars.--A new selection should not Be required or allowed, in consequence of an error in fixing the value in the settlement of the accounts. The widow, and son, should retain the slaves selected, and allotted, and be charged with them at the prescribed rate.</p> <p>A widow may and stock by support or be amiyi and she charged with them as adm'x, she,. he equivalent, and created with the support of the ab'nlfg charged with the provislon!”</p>

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

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

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

<p>The act of 1796, concerning the establishment of towns, gives to trustees of towns which may be established under it, power to convey the lots to purchasers; and 97 powers given to trustees by the act of 96, are conferred on the trustees of towns previously established. By virtue of these acts, trustees of towns, for the time being, may make deeds oflots, though the act establishing the town (before ’96) did not vest the title of the lots in the first trustees, nor give their successors power to convey them.</p> <p>Trustees of towns who are not vestef with the tefots, and can maintain no suit for any, may nevertheiess, have authority to convey and pass the title.</p> <p>An act (of 1815) for the better reg^, sterling,gives the trustees power to convey lots to those who are entitled to them, & the original price And thoun-lfthis may be a private acts-are extensively published, quiredto be specially pleaded in this State — the courts must take notice of it.</p> <p>The trustees of a town having a convey the lots” a deed made by them, is prima facie evidence was shown by the grantee, that was necessary to entitle him to the conveyance.</p>

<p>The pleadings— trial, verdict, and judg t, and errors assigned.</p> <p>In replevin, against two debts, one avows and justifies the taking, under an execution levied by him, as a deputy sheriff; the other makes cognizance as plt’f in the same execution: jointly sued, & pleading the same facts in justification, a verdict in their favor would entitle them to a joint judg't pro retorno.</p> <p>The dep. sheriff, avowant, having died before the trial, the surviving def t files a newavowry, justifying the taking by himselfalone, as both had justified before — on which, the plt’f takes issue: a verdict being found for def't on this issue, as he alone is entitled to the judg't — it must be the same as though he had been sued alone.</p> <p>Tire plaintiff in replevin having sued the plt’f in the execution as a joint trespasser; having given bond to him, & having taken issue on Ms avowry, is estopped to question his right to a judg't. He cannot,by the abatement as to one deft, defeat a judg’t against himself, in favor of the other, for property which he had wrongfully taken by his replevin.</p> <p>The successful def’t — after a return of the property to him, will hold it as bailee, as though it had been delivered to him by the sheriff.</p> <p>The judgment in favor of the surviving defendant will exonerate the reps, of the deceased defendant from liability, & be beneficial to them; and the plt'f in the replevin,having no right to hold the property, cannot complain of the judgment against hi/n.</p> <p>Deft in replevin can legally file but oneplea;but if others are filed without oBjection, no advantage can be taken of it, in error. And—</p> <p>After a verdict (in replevin,) it is too late to object that some of the issues were immaterial, if there is any one good.</p> <p>An avowry that does not expressly admit the taking, which it attempts to justify, is insufficient, on dem’r; but is cured by issue, especially after verdict.</p> <p>Def't’in replevin pleaded non cepit, and also avowed and justified; issues on both; verdict for idef t, and judg't pro retorno haBendo: — upon the plea of non cepit, he was clearly not entitled to that judgment; and there being nothing in the record to show that the trial was confined to the other issue, or that the verdict was found on that alone, the judgment is rewerged.</p>

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

<p>A testator-devis all his estate including 11 negroes during her widowhood) and one third of it if she married again — not saying how, in that event, the other two thirds should hut Reeling un another “item ” when 'the ^ first of his children estate be with she remained his widow, the balance equally among the children.— after the testator’s death, his and ten yeara a£ ter that, one (the drew married heU that, by was to devisero the children to take effect upon the widow’s marnage; the devise to them was contingent, depend-upon the marriage of one of them — mi event that might never haPPctl; consethe widow, by ^ two thirdsof the fo^widowhood, that portion,being slaves, and then undevised, passed to the adm’r, and as assets in his hands, was subject to an ex’on against him as administrator.</p> <p>If there had been a devise that, on the widow’s marriage, 8 of the estate should go to the childre, to be divided among them when either of them should mar ry, the uncertainty whether either of them ever would marry, would not have affected the devise to them; till that event, they would have been tenants in common of the devise, which would have passed immediately to them, upon their mother’s marriage. But, as the will stands, the devise itself depends upon the same contingency as the division.</p> <p>Slaves, so far as respects last wills and testaments, are made real estate by statute, and pass by will as land; for most other purposes, they are regarded as personal property; and though (by another statute,) they descend, sub modo, to the heirs of an intestate, they are assets in the hands of his administrator, and the title of the heirs may be defeated, or confirmed, by him. They are, at all events, subject to the debts of a decedent (when other assets are wanting;) and the rights of creditors cannot be defeated by any bequest or devise of the slaves; they will be lia ble in the hands of the devisee as they would be in the hands of the adm’i1, if they were not devised ; and they may, perhaps, be so devised as to be accessible to creditors, in part as assets in the hands of the adm’r, ex or, or heirs, and in part as land in the hands of devisees.</p> <p>But the interest of the devisees in a contingent devise of slaves —being of uncertain, unascertainable value, as the contingency may happen soon, or never— (though it might descend to the heir of the devisee,) would not be subject to sale under execution. And— Where slaves were devised (as ante p. 157) to a widow for widowhood, or until one of the children married,and then to them; and the widow married before either of the children, and the slaves, thereupon,passed to the administrator with the will annexed; and an execution against the testator’s estate was levied upon themas assets in his hands and they were sold by the officer: held, that the sale passed the entire property to the purlute right, and he^divested of it by the children, togonoyth(one”s marriage,) upon were to go them, did afterward happen.</p> <p>A widow designated in a will as sole ex'x, might feline acting in that might be an adm’x nexed, and might act, jointly with another administrator, in the latter capacity. The acceptance of the appointment, would not make her executrix in fact, but would 1‘ather bo evidence of her renunciation. Nor would the appointment of the co administrator be void, or irregular. '</p> <p>Two thirds of the a widow passed to the adm’r, on her marriage-was then proper, county court showing a division, is evidence of the right of those claiming the part allotted to the adin’r, to sue for them with out joining the widow as.pl’ff.</p> <p>The principle settled, as in lieu of The principle settled, as above, does not affect the right of the devisees to obtain compensatheir devise, or-to question the conduct of the adm’r in permitting the slaves to-be sold.</p>

<p>Deree and appeal.</p> <p>A purchase may be made with an intention of holding it for the benefit of another; but if the parties are strangers in law, and the purchaser uses only his own mo ney in the purchase, a Court of Eq. will not com pel him to carry such gratuitous intention into effect. But—</p> <p>A trustee cannot, by his own act, acquire an interest in the trust estate, hostile to that of his cestui que trust, or inconsistent with the proper fulfilment of his fiducial duties. A purchase by a guardian, of a land claim adverse to the title of his wards, is within this principle. And— Where one of several jointtepants or co parceners buys in an incumbrance on the joint estate, the purchase will inure to the equal benefit of his co tenants, if they elect to participate in the purchase, upon condition of paying their due proportions of its actual cost. — And a purchase by the husband of a coparcener, is within this principle.</p> <p>F. held a legal title to a tract of land; for which, M — alleging that he had a superior equity— brought suit. They compromised, and divided the land, and M was put into possession of the part allotted to him; but before the conveyances were made, to carry the compromise into full effect, F died — leaving a will, by which he devised the land —except what he had surrendered to M — to his son. Several years afterwards L, who had married the widow of F, and was the guardian of his children, purchased, in con junction with r-, who had married a daughter, and heiress of F, a third claim, which covered all the land in dispute; and, by setting up that claim against M, induced him to relinquish and convey all his interest to them — they merely paying for his improvements. In this compromise, L and G obtained the obligation which F had given to M for a title, upon their compromise. Whether that obligation could have been enforced against the devisee and heirs of F, was questionable, and that consideration evidently operated with M to induce him to make the new compromise and surrender that obligation. Land G are presumed to have known the nature of M’s claim, as well as the other titles; which knowledge they had no right to use for their own advantage, to the prejudice, or to the exclusion, of those who were the wards of the one, the co tenants of the other: held, therefore, that the purchase or compromise, made by L aDd G with M, shall inure to the benefit of the devisee and heirs of F — they contributing their equal 'portions of the consideration actually paid.</p> <p>Recital of circumstanceswhich tend to show, that M. considered it very doubtful whether the obligation for a title which he had received of F, could be enforced against his heirs, and induce-the belief that, it-was with that, view, that M surrendered that obligation to L and G: and held that, as the consideration upon which M made that compromise,thus passed, in fact, from the devisee and heirs of F — L and G. must, on that, ground alone, be considered as hoi ding the title thus acquired, intrust for them, or rather as having extinguished that adverse claim for. their benefit.</p> <p>Though a title bought in by a guardian and co-tenant, was in fact, worjhless, as they purchased it in good faith, believing it would be beneficial to the estate of the wards and co tenants,— the purchasers are en titled to be reimbursed for a proportional part of theprice paid, by the heirs who claim the benefit of a compromise obtained by using it.</p> <p>A party filed his bill claiming the benefit of a compromise which had been made respecting titles to land, within two years after the discovery of the facts which show that he was entitled to the benefit of the com promise: held, that, though the compromise was made near twenty years before, the lapse of time does not preclude him from asserting his rights under it.</p> <p>A party soon sifter -coming of age, made aeon, tract with his late guardian and a co tenant, the effect of which was to.preclude him from asserting important rights: he is relieved on the ground that,facts material to the understanding of his rights, tho’ known to the other party, were unknown to him, and, of the influence the guardian may then have had over him.</p>

<p>Pending an action of detinue for slaves, the plt'f filed a bill in chancery, to prevent their removal by certain sureties, for whose indemni%tinue had conveyed them to a trustee: these sureties answer, and making their answer a cross bill, allege that, after an absolute sale, (under which the plaintiff claims,) the slaves were permitted to remain with the vendor, who thus held them when they became bound for him; and that the title of the purchaser was, therefore, fraudulent as to them: equity may take jurisdiction of this cross bill— as it would of an original bill for the same object — and settle the question of fraud. And the rights of the sureties will not be determined or affected by a judgment in the action of detinue — to which they were no parties. And —</p> <p>If the sureties became bound in consequence of their belief that their principal owned the slaves, and his agreement to secure them, by a lien upon them -they are such purchasers as may impeach the pre vious sale, as per se fraudulent as to them. But if, when they first becam e sureties,they had notice of the sale, equity will not declare it void for their benefit.*</p> <p>G owed a largo sum to P, who was largely indebted to M. P pledged G's notes to M, as collate ral security; and G, as a security for those notes, gave P a mortgage ‘on certain slaves. After-wards, they all agreed -that M should take the slaves as a purchaser, at their value, and G accordingly conveyed them to him — G and P each receiving an adequate credit upon their respective notes.— The slaves, however, still remained in the possession of G, the vendor, & he afterwards conveyed them to a trustee, as a security for certain others creditors his; and they attack fraudulent and because the possession was not changed to beties: — but held that’ when validity of which was made by G to P. it inured of M, as pawnee of the mortgage debt; and if the subsequent absolute and sale was void at was void only as to theinterest which passed by it (i. e. the equity of redemption;) as, if it was void, it d¿d p°e-exfetfog mortgage, & the would be only to to their former title as mortgage slave” were taken by M, honafide, at their fob- value, which was less than the subsequent mortsum they were mortgaged for, a re-sale for the benefit of the creditors, as gagees, is denied.</p> <p>Equity has no jurisdiction of a legal right of & Unconnected demands against cannot be united in the same bill tho' the def't is ex'or of both. A cross bill can be sustained only upon matters growing out of the original bill.</p> <p>A matter concluded by the dismissal of a bill, cannot be retried in another suit.</p>

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

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

<p>Agreed case</p> <p>Prom the Circuit Court for Fayette County.</p>

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

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

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

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

<p>A joint action against husband and wife for a fraud in the sale “ofbCe^’^ta“ed; for, as to anTnt action lies fora fraud in a void sale. Even a plea of infancy may defeat such an action by avoiding the contract; and when the dec'n shows that a feme covert is sued, it may be demurred to, as showing a void sale, or a misjoinder, ¡f she is sued with her husband.</p>

<p>Sale of a farm in 1817; a small sum paid, and the purchaser let into possession; the next instalment was to have been paid Jan. 1, 1818, when the deed was to have been made; but the vendor was then insane, - and died soon after, leaving infant heirs;in ’30, the heirs filed their bill for specific execution: held that — time not being of the essence of the contract---the fact that the title had never been made, is not an available objection to the decree.</p> <p>The purchaser, having enjoyed the possession of the land, is justly liable for interest on the purchase money.</p> <p>A tender, to the wife of the lunatic, upon condition that the deed was made (when she had no authority to receive the money, and no one could make the deed,) avails no - thing, especially when the money was not kept in reserve for the debt, but was used by the debt- or. Such a tender does not exonerate the debt- or from the interest.</p> <p>The personal warranty of heirs, in a deed made by them to carry into effect then-ancestor's contract, is sufficient; and in fact, the most effectual.</p> <p>A deed made by the guardians of an infant, in their •own names, hut for the purpose of complying with a decree requiring heirs — of whom', the infant is one — to-convey, in their suit for the purchase money — • the deed, being approved by the court, is as effectual as tlio’ it had been made by a commissioner previously appointed. Commissioners ’ deeds have been held good when made in their own names.</p> <p>When infants &. persons of unsound' mind are seized of lands in trust, the guardian or committee may convey, under the orders of a court of chancery, 1 S. L. 455 ; and held, that infants whose ancestor was hound for a title by his executory contract, are within the equity of this statute; and a deed made by the guardians of an infant to fulfil the ancestor’s contract, though made without any order ofcourt, being afterwards approved & sane tioned by the court, is valid, as a conveyance under that statute.</p>

<p>The proof of the execution of a sumed to have been waived m no objection to motion*to reject it, appearing in the record.</p> <p>In an action against the surety of a sheriff, for the default of his deputy — a list of fines levied by a court of assessment, certified as the statute directs, by the judge advocate,is at least prima facie evidence of the assessment; and a receipt by the deputy sheriff acknowledging that the list was delivered to him, by the commandant is, in like manner, evidence that such person was in fact the commandant.</p> <p>Tho’ a deputy sheriff was not not bound to ceive a list of mih'tia fines afterfhetimewithin which the com mandant was required to deliver them to thesheriff — yet, having received it while the fines were collectable by distress, it was His official duty to collect them: and the high sh'f is officially responsible for his deputy’s default in failing to pay over the money.</p>

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

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

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

<p>The covenant & pleadings.</p> <p>The defects of pleadings are not noticed here, if the demurrers were withdrawn and issues taken in the court below.</p> <p>An indorsement on a contract by which a party to it stipulates that he will, if required, give security for its performance on his part, must be taken as part of the contract — constituting, as soon as security is required, a condition precedent— to be performed within a reasonable time.</p> <p>The right to insist on the security, as a condition precedent, was not waived by its being declined for a time, when required, proposed and approved. The covenantee had a right to take time to consult his partner in the transaction, consider and settle the form &c.</p> <p>It was incumbent upon the party wlro was to give the security, when an unexceptionable instrument was prepared for him, to get it executed, or prepare a more fit one for the occasion.— The names of sureties affixed to the original covenant would avail nothing, without an alteration ofils terms, which might be objected to; an offer to have it so signed, was no offer to comply with the indorsement.</p> <p>In covenant, the recovery is only to the amount of injury or loss sustained by the plaintiff, in consequence of the breach; and the loss -or injury resulting from a failure to deliver chattels (not paid for,! aecording to contract, is the difference between what they would have cost the purchaser, all charges included, up to the time'iixed for the delivery, and the market price at which he might then have sold them. And, if the seller had an election of different modes'of settling the sale price, the presumption is, that he would have elected most favorably for himself; and the difference between that price with with the charges added, and the market price, is the measure of damages</p>

<p>The form, of a will of personalty is not material. Any writing which snows the makers inteniion that the whole or a part 0f his effects shall pass, at his death, to a designated persons, may, it seems, be testamentary provision; and even where the wanting was not intended as a will, but was intended to operate death^and^not before, though it vailing intervivos, might be -eflectual after the maker’s death, so—</p> <p>Held that the note of an ucle, payable afto his nephew’ might, without other consideration, be sustained as a testamentary provision.</p> <p>A court of ch’y will take juris diction of a case ting” Vuf very clear proof of its execution & coned.</p> <p>The facts which render the genu, ineness of the lost note in this case, too questionable for it to be made the foundation of a decree.</p>

<p>The father and brother of L. M. wife of J. M. by their wills, respectively, gave to trustees, certain property for the use and benefit of L. M. and her children, and to be free from the debts and control of J. M. Isabella, one of the children of L. M. died without issue, and intestate; aftevwards, L. M. died, and J. M. mortgaged to B & co. whatever interest he was entitled to in tho estate of Isabella his daughter: upon the bill of B & co. to enforce the mortgage — held that, though the wills were unskilfully drawn, yet the intent of each, deduced from an examination of its various clauses, sufficiently appeared to be, that J. M. should in no eueraf have any interest in the property, but that, after the wife's death, the trust should continue during the husband’s lite, for the benefit of the children or their issue or survivors; & the bill was dismissed.</p>

<p>Chancery-</p> <p>From the Circuit Court eor Jessamine County.</p> <p>Statement of the case’</p>

<p>History of the titles and claims of the parties, respectively.</p> <p>The principle, that a purchase of an adverse claim, by one joint tenant in possession, shall inure to the benefit of all the co-tenants cannot apply to a purchase made before the joint tenancy commenced.</p> <p>A party in possession of land claiming a title from the Commonwealth,took, jointly with two others, an assignment of a survey of an inferior claim covering the same and other land, upon which a patent issued to the three — it appearing, not that he intended to abandon his prior title, or hold it also jointly with his co tenants, but rather to secure his possession by holding both titles: held that his co tenants were not entitled to a partition of so much of the land within the patent as was covered by his superior claim.</p> <p>Where, in such case, the joint-tenant in possession prior to the joint-tenancy holding a bond for a conveyance of part of the land by the owner of tho superior title, had, after the emanation of the patent to the joint-tenants, brought his action and recovered damages on the bond, and the def’t at law had after-wards obtained a decree, to which the other tenants were not parties, against him for a surrender of the land,upon which he purchased it and remained in possession, held that he might rightfully make the purchase for his own exclusive benefit.</p> <p>The right of joint tenants to a participation in the benefit of a superior claim purchased by one of them in possession, rests upon their contributing their ratable proportion* of its cost.</p> <p>A partition between joint tenants of land which. one of them has occupied, should if practicable, be so made as to give him the part he has improved, without regarding, in the division, its increased value by reason of the improvements: if this cannot be done, he should be paid by them for his amelioration of so much of the land as falls within their respective shares, and also interest on the amount they owe him for advances in buying in an adverse claim, deducting therefrom the profits of the land in their shares which he occupied.</p>

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

<p>A circuit court may, by injunction, preventthe enforcement of a mandate of the court of appeals, which has been obtained by fraud or surprise, or in violation of an agreement.</p> <p>A temporary injunction having been granted— the def’ts atto. knowing that the facts alleged in the bill existed, and could be proved, waived the proof, and consented to a decree perpetuating the injunction; but, as neither the proof, nor consent, appeared in the record, the decree was reversed: held that there was sufficient ground for an injunction restraining pro • ceedings upon the mandate.— The atto.in consenting to the decree, did not exceed his authority: his client is bound by the act.</p> <p>By an act of ’20, it is provided, that the consideration of notes made payable at, and discounted by, the Bank of lien, shall not an suit hrTt upon the same, waipassed with a view to the depreciation of the notes of the Bank of Ken. and of the Bank of the Com th, to preserve the actions & pleas, BngSe debts due the Bank to the lent then the sameno tes would paynmnt & not to preclude all inquiry into the consideration of notes discounted, as whether they wit to nsit? eration, upon an atiorf &cnS And held that where discounted a note and paid over the predated Commonwealth’s paper, and had recovered a judgment forthenom mal amount; & did not deny injuncton bin that the intention payment‘in^pede, it was prop- - er to perpetuate the injunction, of the amount of the depreciation was discounted.</p>

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

<p>That tho defendant in an attachment had not absconded, is matter of abatement only : so no error in refusing a continuance to enable him to prove that fact, when it was notpleaded, as the proof could not be admitted.</p> <p>No declarations required in an attachment case; the warrant serves for count, as well as process.</p> <p>Ten days between the levy of an attachment returnable to the circuit court, and the day it is set for trial, is sufficient to entitle the plt'f to a trial at th6 first term.</p>

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

<p> Writ of right. </p> <p>From the Circuit Court eor Owen County.</p>

<p>The master who knowingly permits his slave, while under his control, to retail liquor, in a house belonging to the master, is himself guilty of the offence of keeping a tippling house, and liable to the penalty.</p> <p>It is not necessary to prove that it was done by the actual command of the master, or that he took the profits, to make out the charge against him: all this the law will presumefrom his relation to, and ’control over, his servant; and will not permit it to be questioned.</p> <p>A man may keep a tippling house by his agent; & he who does so —whatever may be the character of the agent— whether a hired person, or the wife or servant of the principal —incurs the penalty.</p>

<p>An affray is a fighting by mutual consent An assault and battery is against the will of the party assailed.— The offences are different: there is no presumption that a party has been convicted of the one, upon facts which constitute the other; and where a party indicted for an affray, pleads that he has been convicted of the same offence, upon an indictment for an assault and battery, parol proof is admissible to show — what the records cannot show with sufficient precision— that the two of-fences were, or were not, identical.</p> <p>A novel assignment is not admissible in a cri • minal case: if au trefois convict is pleaded, the only proper replication traverses the identity of the offence.</p> <p>The court of appeals has no jurisdiction to revise a judgment on an indict, for an affray at common law— for which imprisonment might be inflicted.</p>

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

<p>A dower interest in land cannot be relinquish ed or transferred by a mere verbal declaration— however formal the manner in which it may be made or certified.</p> <p>The husband sold & conveyed land, by a deed, in which the wife was not named, and which she did not sign nor seal. Alter it was recorded in the office of the proper court, the wife, on privy examination by the clerk, declared that she relinquished her dower in the land, and was willing the same should be reeordod; which-the clerk in due form, deecfi^and^also that he had recorded that certificate. The husband died, and his widow having sued a remote alienee of the land for dower, it was held that she was entitled to recover. Ctuere — can the dower of the wife be transferred, or relinquished, by the execution of any other instrument than the deed conveying the husband s estate?</p>

<p>Where cross demands the parties is insolvent, equitahieerightaonf set-off which ted by an assignment of the him.</p> <p>A court of equition to decree *a set off, where eities is insolvent, or non resident— the'demands are and both m the same court, where the dii-ected^by ba com law order. Where a judg't has been assigned, and the deft claims a set off against it, he should assert that where the assignee who motion for a set off at law may be heard.</p>

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

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

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

<p>The law requires that lists of taxable property shall be given in upon oath; and a refusal to swear to a list, is tantamount to a refusal to give it in.</p> <p>It is the duty of the commissioners of tax, to apply at the residence of each citizen, for a list of his taxable property; & the citizen incurs no penalty for failing or refusing to give in his list, unless he' is called upon for it at home.</p>

<p>Under the act of ’37, which gives an action by petition to an indorser who has taken up a note that has been discounted by a bank, against the drawer and prior indorsers— it is not necessary that the plaintiff’s indorsement should be copied in the petition. The averments, in the form prescribed by the act, showing that he is the proprietor of the note, and has paid,it ‘as indorser,’ are sufficient to entitle him to judg t.</p>

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

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

<p>The marshal of the city court of Louisville, has no authority to take a recognizance for the appearance of a party indicted as a vagrant. A recognizance so taken, is invalid. The act concerning vagrants, directs that when one is indicted as such, the court shall direct some justice of the peace to bring the accused before him, and examine into the charge, require a recognizance for his appearance at the next court for trial ¡commit him forthewant of it; or discharge him. The city court of Louis, having the powers of a justice of the peace, and of the circuit court also, over vagrants in the city — when any one is indicted as such, in that court, the judge should have the accused brought before him and proceed as a J. P. should do in such case.</p>

<p>An affidavit— held insufficient to sustain a motion to set aside a default, and award a trial.</p>

<p>In trespass, the force is the gist of the action,and if that be justified by legal process, 'the motive of the defendant in causing it to be issued, or executed, is immaterial ; nor can it impair the efficacy of the process as a justification.</p> <p>Trespass cannot be maintained for an injury committed underprocess of law, ngainst the pi if. unless the: process was void,.or has been annulled. For an abuse of the process, case is the only sustainable action.</p> <p>An attachment for debt, issued by a justice ofthe peace, stands upon the footing of other process in this respect.</p> <p>Such an attachment issued by a justice having jurisdiction, the recitals of which, and of the bond taken by him, show a case proper for its emanation, ¿¿nothing appearing upon the face of the proceedings or from the proof,to invalidate it, is a good justification in an action of trespass against the pi’if. therein, although it appears that he procured it to be issued & executed without cause, & that it was after-wards discontinued and the property restored.</p> <p>The jurisdiction of a justice to issue an attachm t, depends, not upon the truth, but upon the legal sufficiency ofthe statement made to hirn by the par ty obtaining if.</p> <p>Proof that an at taehmentwas oh tained hy a false statement to the justice, may sustain an action on the case against the pl’fi'. who directed its ex’on, but, unless the piocess is set aside or annulled, cannot avail in trespass against him.</p> <p>Process void ab initio can pass no right, nor jus tify any act done under it</p> <p>In a collateral proceeding, such process may be disregarded, and when its voidness results from an extraneous fact, proof of that fact may, it seems, he made, and the ef feet oftheprocess avoided, though it has not been declared void in a direct proceeding.</p> <p>But the effect of process voidable only by reason of extraneous matters, cannot be thus avoided in a collateral proceeding.</p> <p>In the cases in which trespass has been sustain eá against a party who has caused process to issue without grounds, for what is done by his direction or with his aid, the process appeared to be void on its face, or on a view of the record of which it was a part, or by reason of some extraneous fact, or it had beGn regularly set aside and annulled before the action was brought.</p> <p>In trespass, clef’t pleaded the general issue, with issue andshowed, in justification, an attachment against the pl’lf.under which he took the goods held, that, as the pl'ff, if the deft had specially pleaded thejus tification, could not traverse it, & also new assign, that some of the goods taken were not his, and not subject to the attachment, and not having admit ted the justification, butendeav ored to disprove it, he could not re cover upon proof that such goods were taken</p>

<p>Order.</p> <p>From Montgomery County Court.</p>

<p>Land was sold under ex’on, and —after the def t in the ex on had remained four or five years in possession — the pur chaser obtained thesheriff sdeed. The def t in the ex'on then filed his bill, alleging that the land was purchased, at his request, for him, and with his money, and that the purchaser had fraudulently taken the deed to himself; all of which was denied.---If, upon such an understanding, the defendant in the ex on hadfurnish ed the purchaser with the money before he made the payment, the law would imply a resulting trust in favor of the ex’on deft. But very clear proof of that fact would be required, to es tablish the trust. And, upon its be ing established, a decree inot to an nul the purchaser s deed; but requiring him to convey to his ces tui que trust, would be proper. But—</p> <p>If the purchaser paid for the land with bis own mo ney, and the defendant in the execution after-wards refunded it to him, the law would not, on' that ground, imply any trust in the case — altho’ the money was, in fact, so refunded, upon an agreement to permit the defendant in the ex on to keep the land. Such an agreement cannot be enforced, unless it is in writing— because of the statute of frauds. The complainant,however, (de fendant in the ex ecution) upon a prayer for general relief — is entitled to a decree for a return of the money (or value of the commonwealth s paper) he paid to the pur chaser, with, interest upon it.</p>

<p>One who refuses to deliver a bank note to 'the party for whom he received it, is liable for its value only- ‘</p> <p>_ Assumpsit for money had and received, is not sustain’d by proof that def’t ree’d a bank note, without proof that he rec'd it expressly as money.</p> <p>No action can be mantained by either party, upon a verbal contract for the sale of land. The vendor cannot be compelled to con vey, nor to pay damages for not conveying; nor can he maintain any suit upon the purchaser s prom ise to pay the price (which would be without consideration) unless the deed has been made and actually accepted. The intervention of a third party — as a depository, who is to hold the mo ney, till the deed is made,and then pay it over, &c. makes no difference. So— Where there was a parol contract for a sale of land, and the purchase money was placed in the hands of a third party, to be paid over to the vendor as soon as he made a good deed, and the purchaser afterwards directed the depository not to pay the money,or receive the deed, and took back the .money: held, that the vendor — tho’ he tendered a good deed— can sustain no ac tion against the depository for the money.</p>

<p>Indictments.</p> <p>From the Circuit Courts for Ohio and Meade Counties.</p>

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

<p>From the Louisville Chancery Court.</p> <p>Chancery.</p>

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

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

<p>A judg t obtained by a non resident may be, enjoined in ch’y, and satisfied by setting off against it, a debt due from the pit f to the def t therein. Such set off will be proper, altho' the obligation in judg't was given to the plt.f as executor of another, he having made himself personally responsible for the amount of it, and having also after-wards become entitled to it in his own right.</p> <p>A legacy of a sum of money to the use of G. H. to be applied to his education after he arrives at the age of 18 years, bears interest from, and only from, the time of the legatee ’s attaining that age.</p> <p>Lapse of time will not bar a demand, in ch’y, for money of the eompl t, received by the def t, and held by him, under an arrangement of the parties, to meet a demand against the comp t — the bill having been filed within five years after that demand was payable.</p>

<p>Debt.</p> <p>From the Circuit Court eor Grant County.</p>

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

<p>Grounds of the action.</p> <p>Facts proved.</p> <p>Instructions-not erroneous: viz: if the defendants, commission merchants at N. Orleans, to whom the pltfs consigned goods for sale, did not sell them in a reasonable time, & at the current prices; or,if they shipped them without orders— in the absence of any proof of a custom so to ship, they were liable for the amount for which the goods might have been sold.</p> <p>The customs of trade in a. particular place, in subordination to the general law, universal, continued, and in other respects good customs— constitute a part of the law of the place: so, in assumpsit, by merchants of Ken. vs. commission merchants oí N. Orleans, for the proceeds or value of goods consigned to them for sale,on which they had made advances, and as to which there was no special agreement, it is held that, it was competentforthe def’ts to prove that it was the custom of that city, for merchants who had made advances on goods consigned to them from other states, to ship them to foreign ports for sale; andby such proof, to affect the amount of recovery, or defeat the action.</p> <p>A party attempted to prove a custom by a witness, who was uninformed on the subject, and was about to call another to the same point, when the court, -at the instance of the other party, ‘told them the question was not pertinent and legal, and that no evidence of a custom should go to the jury,’ and the witness was not examined'— held that, tho’ the decision before the question was put to the witness, was pre mature, yet, as it had the same effect upon the rights of the party as if the question had been actually asked, and the answer ¡prohibited — the question of the admissibility of the proof was sufficiently presented, for the •revision of this ¡court.</p> <p>Items of. an ac supportedby e°idence, that they are truly copied the creditor’s books,</p> <p>When parties have agreed that a deposition may from refusing to exclude any part of it.</p>

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

<p>Action for the price of a negro woman & child; pit f proved the sale of the woman, by witnesses who said nothing of the child; motion for a nonsuit — overruled ; subsequent testimony supplied the defect. — Even after the motion, the court might,have admitted further evidence to correct a defect occurring through inadvertence or accident. An'd if the variance had been fatal— of which query, still, as it was corrected before the case went to the jury, this court would not reverse, for the refusal to order the nonsuit.</p> <p>A quantum valebant count can not be sustained by proof of a sale at a price fixed by the agreement.</p> <p>Indebitatus assumpsit will not lie upon a special contract, unless the payment was to he in money; and the pit f has performed or executed the agreement on his part, and the time of payment has arrived. But, if the contract was to pay in a bill or note due at a future day, and that day has passed, the ac* tion will lie.</p> <p>Agreement for a sale of slaves— the seller to give a bill of sale with warranty; the buyer to accept a 4 months bill for the price; the slaves delivered, but the writings not made. If the writings were necessary to pass the title, according to the intention of the parties, and the buyer, notwithstanding the delivery, refused to complete the contract —then, as no title vested in him, indebitatus assumpsit would not lie against him for the price. But if the intention was that the verbal agreement should complete the sale, and pass the title — the seller would be without remedy, unless he could maintain some action. And the verdict of a jury, upon evidence which left the intention uncertain, should not'^be disturbed.</p> <p>Upon a sale of slaves at a fixed pnce, with an agreementto give with warranty— the seller, having delivered to give the warranty but remedy is by assumpsuit will not lie. produce it, or to show, with reasonable certainty, that he has lost the power of producing it, and how. But where he has never had the control of the writing, it will be sufficient to admit the parol pro of, if he shows, by satisfactory prima facie evidence, that it is not in his possession, nor subject to his control, nor to the process of the court. So— Where a defendant offered parol proof of a sale in Ken. by the plt’f to a stranger, and the witnesses stated that there was a bill of sale given, but that the purchaser had removed to Mo. and died, and there was nothing conducing to show that the def't could have produced the paper, it is held that the parol proof was admissible.</p>

<p>The circuit c’rt parol proof slaves, because of safe,’the absence of which was not' sufficiently accounted for; tho’ the fact may have been immaterial, the record, this court presumes, for aught that appears from the imperfect statement of the evidence in the bill of exceptions, & the exclusion of the proof there• fore proper; yet, as the reason for it, is stated in that the rejected evidence would have been conclusive, and proceeds to examine the sufficiency of the grounds for rejecting it.</p> <p>When the sale of slaves was by a written memorial, or bill of sale, that is the better evidence of the fact, and parol proof of the sale is inadmissible — unless it appears that the paper is not within the power or reach of the party. If it has ever been in his possession, he is bound to</p>

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

<p>In ejectment, the pit f claimed under a deed from the widow of C, who owned the fee at her marriage; the def’t under a deed of C and wife to S. which did not pass the wife s inheritance, owing to the insufficiency of the certificate of her acknowledgm’t. 'Evidence was given of declarations of the widow to S, prior to her deed to the plt’f, recognising her deed to S, & that she would, at any time, acknowledge it in the clerk’s office: held that the exclusion of this evidence was proper, because, giving it the utmost weight, it conduced to prove a re delivery of the deed to S. and if it had been actually re delivered, no proof or acknowledgm’t of it having been made in the proper office, within the time required by law, it was inoperative against the subsequent deed to the pit f, who was in possession of the land, and without no - tice.</p> <p>Such declarations made by the widow to the grantee of her husband, while the land was held adversely to both, and possession of it not having been taken under the declarations considered as a license to occupy it, will not entitle the husband’s grantee, to a notice to quit, to sustain an eject, against him, by the widow, or one claiming under her.</p> <p>A conveyance of to land Tone in possession of champertous cause the grantee had, without right acquired the posession a forousterof a’thW person,who held advessely to both parties.</p> <p>Nor, in such rendered champertous by the grantee, desiring hie entry with the intention of obtaining it.</p> <p>An act of champerty concurrence of two or more persons'</p> <p>An agreement be tween two, that one should forcibly enter, and oust ,the occupant of land holding adversely to both of them, & the others should then convey to him, might be ehampertous, & might vitiate the deed made pursuant to it; but such an agreement or combination, cannot be assumed from the fact3, that the grantee had forcibly entered on the land, and did so with the intention of getting the conveyance from the title holder. And— When no such agreement appears, and the conveyance was not made so soon after the entry as to show that they were parts of the sametransaction, it cannot be considered champertous.</p> <p>Nor will it beso because, at the time it was made, a warrant for a forcible entry was pending against the grantee at the suit of the former occupant.</p>

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

<p>Ejectment.</p> <p>From the Circuit Court for Shelby County.</p> <p>Facts of the case.</p>

<p>The action &c.</p> <p>'The case inadequately prepared for this court.</p> <p>The facts, as they appear in the record.</p> <p>A tenant, or quasi tenant, or one who has entered under either, cannot attorn to a stranger; nor take any title to hold adversely to the landlord; nor set up any outstanding claim against him; nor controvert his title; nor take shel ter under .any other. But—</p> <p>Whenever it is demonstrated by a judgment, that the landlord's title is bad, and will not protect the tenant, he may secure his possession, by purchasing and holding an adverse claim, with out his landlord s consent,or aformal eviction.</p> <p>Qu. Will a judg t against a landlord s title, pending an injunction against the judgment, justify his tenant in purchasing,or taking shelter under, an adverse claim? But if he retains the possession, under the landlord, after the judg’t, until the demise has expired, his condition and duty to his landlord, are then again the same as though no judg’t had been recovered. For —</p> <p>In ejectment, the term to come, as laid in the dec n, only, is recovered; and after that has expired, the judg’t can neither be enforced by ex'on, nor revived by sci. fa-, taking possession under it, would be a trespass ;and though the judg t, or pro ceedings, were suspended hy injunction, the effect is the same. But—</p> <p>When proceedings in eject are staid by injunction, and the demise is about to expire, the bill will be dismissed, unless the comp t, will consent to an exten. sion of the demise. Yet, a bill to enlarge a demise, will not be sustained, thcr the proceedings have been staid hy injunction, till the plaintiff is barred by the limitation.</p> <p>A quasi tenant, after a judg t in eject, for his own and other adjoining land, and before the demise expired, purchased the successful claim; and, after the demise expired, sold to the adjoining ten ant, so much as covered his possession: AeWthat though this new title was available to the first purchaser (who purchased before the demise expired,') it was notso, to the sub-purchaser, who purchased after the demise had expired.</p> <p>As the possession of a tenant, or one claiming under a tenant, is the possession of the landlord, and, as the acquisition of a title by the tenant to hold adversely, is illegal and void— the statute of limitations, notwithstanding such acquisition of title, by the tenant, will continue to run against it, and in favor of the landlord.</p> <p>A tenant or quasi tenant may oust his landlord, and hold adversely to him, especially after the expiration of his term; and, after he has done so, the acquisition of an adverse title will not change his holding, or make it again subservient to his landlord And if, after the expiration of his lease, he acquires a title adverse to that under which be entered, and holds under it for 20 years,— the landlord acquiescing--tlie statute, it seemSy will bar the entry of the landlord, quad landlord, or any claiming under either. But—</p> <p>Of an actual ouster of the landlord, by the tenant, or quasi tenant,very clear proof--something more than a taking of the profits, a failure to pay rent, or the acquisition of another title— some open, notorious act of disclaimer & adverse holding, will' be required.</p> <p>It has been decided that, a pos ■ session of thirty six years, by one tenant-in-common, or joint-tenant, without any account, or demand made, or claim set up by the co - tenants, was sufficient ground to presume an actual ouster; and the same presumption, upon the same facts,might arise in case of a lessee, or purchaser by executory contract.</p>

<p>A covenant ‘to pay $100, for' services to be rendered in managing an action of ejectment td be bró't by the covenantee as the attorney and counsel of the covenantor,’ interpreted to mean that the covenantee was to bring the action, and prosecute it to final judg’t, with proper skill and diligence, all which being a condition prece-' dent, an instruction that, the covenantee had a right to recover, if he hadperformed any substantial services as attorney and counsel in the case, was erroneous; & ground for reversal, if there was any evidence conducing to show that the covenantee had not fully performed his part.</p> <p>Upon the condition that an attorney brought a certain suit and prosecuted it to final judg't, his client covenanted to pay him a certain fee. In an action on this covenant, the plt’f produced a record of the suit described in it, by which it appeared that, he had instituted the suit, and that the judg't had been recovered: held that this was conclusive, that the plt’f had brought the suit, andprima facie evihad prosecuted it with due diligence so to the end and so, had performed the con-part" But there was an agree-record"th which was signed by other persons, for the pltf there-though this tid not prove any pan of the covenantee, it tended tralize the"evidence of per-p°arT.anCresuiting from the. had been reaver ed — leaving that of the jury: instructions, therefore that if the arevei sai altho, if there had been no countei vai therefore, that if the covenantee had performed any substantial services in the case, are sufficient for ing proof, as the instructions-. could, not-, then have been injurious, though abstractly erroneous, there would, have been no reversal on that ground.</p> <p>A deposition of wa objected tayanse it was taken by a singie justice, in to repel that objection, pltf s atto. show-apped Ibr^he dedimus, the desent, said that one justice would be sufficient; but the latter stated, that, though that was then his option did au agreement binding on his client : — under these circumstan ces, if the deposition had been admitted, as the objection to it, was purely technical, this court would not have reversed, for that cause; yet it will not decide that the deposition may be read on,a future trial.</p>

<p>The possession of a tenant is generally deemed the possession of his landlord — whose title the tenant is estopped from controverting.</p> <p>One holding under an executory contract, is generally considered as the quasi tenant of his vendor — the relations subsisting between them, being,in some respects, the same as those between tenant and landlord. But—</p> <p>A tenant is not estopped from showing that his landlord’s title is extinguished, or has expired; and there are cases, in which he may avail himself of the statute of limitations, against his landlord;and the reasons for allowing an occupant, who entered under an executory contract, which has been complied with on his part, and who has held the land, under his contract, for moro than 20 years, to avail himself of the statute against his vendor, or those claiming under him, seem to ha stronger than any which can be urged in favor of a lessee.</p> <p>A patentee sold a tract of land to a purchaser, by executory contract; and,soon after, sold and conveyed most of the same tract to another purchaser. The first purchaser entered upon the land he had bought, and continued in possession until this ejectment was brought— more than twenty years after-wards— by the heirs of the 2nd purchaser, upon his legal title: held that, the moment the ven dor had made the 2nd sale, the first purchaser— tho’ he had entered and held under an executory contract only — - ‘could, treat his vendor asastranger, and was no longer bound to ¿title” ¿'might gainsay and con- and^ightof'entry. The vendor, ance'to tfoTInd purchaser, had stript himself of all title, and had forfeited all claim to aliegiance or fidelity from his qua-first vendee — to then” afford° no protection, and theneeftnh, float liberty to controany title'or'rlght of entry in his vendor, or those claiming under him, by relying upon the bar by the statute, or any other legal defence. And —</p> <p>Though the 2nd purchaser, who had the legal title, might, until he "was barred by time, have recovered the possession from the first purchaser, who was in under an executo - ry contract, and though the latter had treated the former as a trustee by filing a bill in eq. against him, to obtain the legal title-— still,there was no privity between them; they held —the one the legal title, the other the possession, in hostility to each other; &. there was no-, thing in their condition to es-top the first purchaser from rising the bar by time, or any other defence, against the other. The rpcord of a void decree may be used to show how the complainant claimed the land that was decreed to him.</p>

<p>Upon affidavit, that the lessor in ejectment, is an infant, the court will give a rule upon the plt’f, to show cause why security for costs should not he given; and, at the return of thes rule, if no cause is shown, the-proceedings will., be staid until the security is given, or the cause for requiring it removed.</p> <p>Upon an affidavit alleging a lessor ' s infancy, the court gave a rule on the plt’f, to give security, on or before the calling-of the cause at the next term; and none being given, dismissed the action: this was error.</p> <p>A judgment foi costs against an infant lessor, upon a dismissal of the action, for want' of security for costs — • - held erroneous-.,</p>

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

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

<p>Sale and conveyance of 200 acre8 ofland — theconsideration being the undertaking of the grantee to pay and release certain debts of the grantor, and board, wash for, and lodge him, and keep his horse free of charge, during his life: but if the grantee fails to perform any of these stipulations, then the deed to be void-. the proper construction of this condition in the deed, considered and determined; and held that, tho" a refusal by the grantee, at any time, to furnish the board &c at all, or any longer; or any circumstance, caused or permitted by him, which would necessarily prevent the grantee from living comfortably in the condition contempla ted, would render the deed ipso facto void such would not be the effect of every inconsiderable , casual failure to furnish those accom modations ‘ in the usual and customary manner.’ To be entitled to a nullify» ing effect, the failure must be essential and habitual,or in some respect, inconsistent with the reasonable expec tations of the grantor.--And therefore, w'here the proof as to failures, was that, on one occasion» the grantor had failed for a day to provide food for the horse, & in some other minute particulars, had failed strictly to perform as to board, washing & lodging — instructions that ‘if the grantee had, at any time, failed to board, lodge and wash for, the grantor; or had, at any time, failed to furnish food for his horse, as was usual and customary, the title of the land thereby vested in the grantor’— as they might tend to mislead the jury, were erroneous: especially, as other instructions which had been given, went far enough.</p>

<p>Evidence that a bill of sale was fraudulent as to creditors is only admissible in behalf of a credit- or; & there was no error in rejecting it, if the decree offered as proof of the debt, was void— though other and insufficient reasons were assigned for the rejection, by the circuit judge.</p> <p>Decree upon a bill of revivor, against a foreign executor, without actual service upon him, and against resident heirs &dev isees served with process within the jurisdiction: tho’ the decree is void as to the executor, who never could, as ex'or, have been within the jurisdiction — it was not void as to the heirs and devisees; and tho’ the record may show that they were not liable (having no assets) the decree, for that cause, is only erroneous, not void. A sale under an ex on to enfsrce it, would pass the title, if the property was subject to the levy. And the decree, tho’ erroneous, being unreversed, proves the right of the complainant, as creditor, to quéslion the validity of a bill of sale by which the original def t had conveyed the property.</p> <p>A man made a hill Qf sale of slaves to his son, and died, leaving the son one of his heirs and, devisees: if the bill of sale was fraudulent as to creditors,the law of this state will consider the son; as holding the slaves, not in his own right, but as heir or devisee, and subject- to sale as assets, of his fa. theiythe fraudm lent vendor; and if they are taken to satisfy a decree against heirs & devisees jointly, it is immaterial in which ca-therm But if the son claims them, under his bill sale — which is good against his lather, the grantor — the son will holding'them as heir, so far as father raref concerned.</p> <p>The succession to movable nova we property which a resstate may”'have here, at the time depend up on the law of his domas his creditors here are con-will not be regraded. Administration for the benefit of ways Teulated by the lex loci scita.</p> <p>.The slaves, m the case supra, would have been assets m the hands of an uT?»rwr<Nhad there been one, and no claim to asserted*”1 unde” the bai of .de; no adm r here° he”considérelas holding them as see — -To °whom they might have passed, like land, in the absence of any claim p> them by an administrator.</p> <p>If a man makes a bill of sale of slaves here— which Í3 fraudulent and void as to creditors, and afterwards goes to another state, and dies, domiciled there— if the vendee asserts no claim to the slaves, they will be assets in the hands of an adm ’ r here — if any; and if no adm r here, they will pass, like lands, to an heir or devisee. — But if a purchaser claims the slaves, though his bill of sale may be fraudulent as to creditors, the law of the foreign domicil will not apply; and neither a foreign executor, nor an adpi’r here, can claim them; for the bill of sale— good against the vendor, will be, equally conclusive against his representatives.</p> <p>Whether the slaves were subject .to sale under a decree against the vendor (the father of the vendee,) must he determined by the law of Ken. And, if the bill of sale under which the son, as a purchaser, claims, is void as to a decretal creditor,that law decides that he shall be considered as holding for the benefit of the creditor, as heir of his father the debt- or — especially as no personal representative of the father could assert any claim to them, or assent to the claim of an heir or devisee. And—</p> <p>The son — if the hill of sale was fraudulent as to the debt decreed against him and his co-heirs — • might be considered as holding either as heir, oías ex’or de son tort.</p> <p>In a bill of revivor to revive a suit against a foreign executor & resident heirs and devisees, it was alleged that the heirs and devisees had no assets: this allegation — only tan tamount to a suggestion that the comp t, and the party for whose use the suit was brought, had no knowledge of any assets in the hands of the devisees or heirs— does not preclude or estop them, from alleging and proving, in another controversy, that a bill of sale which the de cedent had made of certain slaves, which had been sold under a decree in the suit, as assets in the hands of his heirs or devisees — was void as to his creditors, & the slaves therefore assets.</p> <p>Where a party who is in debt, makes a conveyance with intent to defraud his creditors, & dies, if the conveyance is to one who can have no other claim to the prop erty — though the deed is void as to creditors, the heirs or devisees of the fraudulent grantor cannot be made liable for the property, as heirs or devisees; for the deed is as conclusive on them, as it was upon the grantor himself; & the creditors must, therefore, pursue the property into the hands of the fraudulent grantee. But, if the conveyance was made to a party who, if it had never been made, miglit have held the property as heir or devisee, he will be liable for its value as heir or devisee, or it may be taken under execution as assets of the grantor. — And herein, this case differs from Ralls vs: Graham Sfc.i Mon. 102, and Harrison vs. Camp-hell, Ante, 263.</p>

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

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

<p>A covenant,signed by both parties, recites that, one had conveyed a tract of land to the other, ‘with an understanding and agreement that the grantee should, as soon as possible,sell theland, for the best possible price, retain a sum due to him from the grantor, and pay bi|p tbe residue:’ v¡ng been simultaneously ferrea to, both muf be considered as parts of the same con tract; and, so considered , the covenant constituting a defeasance of the deed, they operate as a conveyance in trust, in the nature of a mort. may recover his actual damages. But he cannot gage. If the grantee failed to sell the land according to the ‘understanding,’ the grantor, by action on the covenant, elect to recover the value of the land, less by the debt secured by it, and thereby convert the deed with a defeasance, into an absolute conveyance, making a mere mortgagee take the land at its assessed value.</p> <p>The only effectual remedy for the covenantee, where the trustee fails to make tbo sale, is by bill in ch’y, to enforce the trust, and recover dam ages for the failure, or delay in the execution of it. For — ■</p> <p>While the land remains unsold, it cannot be known that it may not still be sold for even more than it would previously have sold for; & therefore, only nominal damages can be recovered, for a 'failure to make the sale</p> <p>The act of 1820, which declares that no sale shall 'be made, or title pass, by any conveyance hy virtue of any -deed of trust with power to sell, without a decree for a sale, or unless the grantee in the deed of trust shall join in the conveyance,-should not be applied where the grantor, for his own benefit, has exacted a covenant to sell. And where the power to sell is given by the deed of trust, the trustee may execute it,, unless the grantor.' opposes it, or refuses to join in the conveyance. And held. that, where there, was a power to sell, and a covenant by the trustee to sell, on which the grantee brought suit; for the trustee s failure to sell, no averment that the grantor had consented to the-sale, was necessary; and a plea, that, the gran,tor, having mortgaged his interest, had deprived', himself of the power to consent, is insufficient. Themort- , gagee took subject to the deed-of trust, and had - no right to obstruct a sale under it.</p>

<p>To an action for an assault and battery, defendant pleaded that since the commencement of the action, the parties had, by written agreement, submitted the matter to arbitrators, who had neither made an award, nor heard the evidence: the plea held insufficient to bar, or abate, the action.</p> <p>In assumpsit, a plea that, before the suit was com menced, the parties had submitted the whole contest to arbitrators, it is said, might be good; but the reasons for that doctrine —the submission being a lis pendens, or that being under seal, it operates as a merger of the simple contract —do not apply to a case, like the above, where the submission was not made till after the suit was brought, and does not operate to release the cause of action.</p> <p>Evidence that a def t in an action of assault and battery is worth .so much~ — is wealthy, is not inadmissible: cer tainly not cause for a reversal when it has not produced an extravagant verdict.</p> <p>A verdict for $85 damages, for a violent beating and wounding, with an axe, is not excessive; nor could a much higher verdict be so considered,especially where it was proved that the deft was amply able ¿to pay it.</p>

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