Volume 37 — Kentucky Reports

<p>Chancery.</p> <p>Cross Appeals from a decree of Fayette Circuit Court.</p>

<p>A scire facias cannot be .mam-■tained on ajudgment , while it may be enforced by execution.</p> <p>A sci.fa. did not lie at common law on a judg’t upon which an action could be maintained; but by astat. of West. 2,1 Ed. 1, it ivas extended to judg-m’ts which could not be enforced by ex’on, without some supplemental judg t.</p> <p>It cannot be applied to anything .which is not embraced,,either ex pressly or con-strnetively,by the judgment.</p> <p>A judgment for a female slave is conclusive evi - deuce of tberight to any children which may have been born of her /' after the con; niencementofthe action; but does not include or emb-ace any of her children, except such as are born so soon after the rendition of the judgment, ■ as to show that, at the time when it was rendered, the child (mum-ire sa mere) was then in fact a part of the mother. Consequently, a judgment upon a ■ sci. fa. to have execution of a judgment in det-inue for a female slave, cannot be extended to any of her children, ■ except- one ( or more)which,tho’ unborn, was in existence, at the time of the judgment for the mo--ther, and included in it, as part of the mother.—</p> <p>To ascertain the-value of, -óc iiave ex on for, such child afterwards horn, a sci. fa. may be main ■ tained.</p> <p>In detinue for slaves , one of those recovered was a woman who had 5 children while the action was pend ing,andtwo more while the judg t was suspended by an appeal and , by an injunction; ' after the judg’t was affirmed and the injunction dis solved, a sci.fa. was sued out to ascertain the val ue of the child ren, and have ex ecution for them: held, that for one of the children which was born within a month after the judg’t was rendered, the sci. fa. may be maintained, and is necessary in order to havethat child and its val ue included in the ex’on; but as to the others , as none of them were included in the judg’t for the mother,there can be no judg’t for them upon the sci.fa. For them the only remedy is an original action.</p> <p>For each child of a female slave held adversely to a party having a superior title, a cause of action accrues at the birth; and at the same instant,any statute of limita lions that will bar the action , commences running ; and the fact, that, at the time of the birth, an. action was pending for the mother , would be no answer to a plea of the statute; nor would a judg’t, in such action , for the mother, be any bar to any action for the child • — ■ though it would be conclusive as evidence of the right.</p> <p>That more is demanded by a sci. fa. than can be obtained, is' not a fatal objection to it, of which advantage can be taken by demurrer.</p>

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

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

<p>The purchaser of a slave, at the time of the purchase, signed a writing ( which which was left with the vendor, and lost,) bind ing himself ‘ to give the said slave his freedom at the expiration of sev en years, upon condition that he would serve him faithfully for seven years from that time:’ held, that, if the paper was given to the slave, or to another for his use, (not a contract between the vendor and purchaser,) it did of itself constitute a conditional email ci'pation, which, if the seven years service was faithfully performed by the slave, would take effect and make him free without any new writing. — Judge Ewing inclines to a different opinion : vide post.</p> <p>The slave having resided in this State , and no proof that he was ever out of it, nor that the writing under which he claims his free dom was made elsewhere, it is presumed that it was made here, (tho’ the former master resides in another State.— But if it were a foreign contract, as it is not intrin sicahy void or vi cious, it must be deemed valid, in the absence of proof that it was in contravention of the local law ofthe place where it was made.</p> <p>If the vendor and purchaser of a slave agree between themselves that he shall be set free at afuture day — the slave no party to the contract — tho’ a court of chancery might compel a specific executio n of it for the benefit of the slave, the contract would not of itself emancipate him, so that he could sue upon it.</p> <p>The fact that a lost paper, by which a slave claims to he e mancipater], was deposited with his former master, for safe keeping, rather implies that it was a declara tion of emancipa tion — not a contract with the for mer master.</p> <p>As the Constitution of Kentucky enjoins on the Ie gislature to pro vide a mode in which slaves may be emancipated, it has been under stood that it could only he done in the modes prescribed by law. Owners of slaves are authorized to emancipate them by last will, or any instrument of writing; and it has been often held that a condi tional or prospec tive emancipation may be effectual.</p> <p>A certain lost wri> ting stipulated that a slave sho’d Re free, if he served faithfully for 7 years: whether the paper was de livered to him, (and' so a conditional emancipation,) and whether he performed the service, were questions for the jury. Instructions that he-was absolutely emancipated by the writing, were.erroneous..</p> <p>Judge Ewing’s Opinion, that the writing {supra) was executory , not of itself an emancipation.</p>

<p>The titles, and facts of the case.</p> <p>Verdict and judgment for defendant, and appeal.</p> <p>A conveyance, lancUs h^the am tual adverse occu ger to^he^on-l™ot, passes no the6’ champerty act of !24; unless the conveyance is made to con-when the con-^ot illegal*6 W£*S</p> <p>Though a sale of land that is held adversely by one who is no party to the contract, is void, by the champerty act of ’24, and the conveyance passes no title, still there can be no recovery of the land upon the title of the vendor, where it appears (to the satisfaction of the jury) that the action is for the benefit of the champertous purchaser. But if it appears (to the satisfaction of the jury) that the cham-pertous sale has been abandoned, and the action was instituted actually for the benefit of the vendor, he may recover; and, even where the purchaser has recovered the land and acquired the possession, his vendor may still treat the champertous sale as a nullity, and recover the land from his own vendee.</p> <p>When there has been a sale of land held adversely to the parties to the deed , the fact that the vendor has authorized the purchaser to carry on a suit for the land in the vendor’s name , is some evidence that it is for the benefit of the pur chaser. But the bare fact that the purchaser is pros eeuting the suit in the vendor’s name, does not prove that it is done by his authority; nor dóes it prove conclusively, where the authority is proved, that the ac tion is for the ben efit of the pureha ser. Before the champerty act is applied in such a ease, the jury should be satisfied that the suit is prosecuted with the knowledge and express consent of the vendor, for the benefit of the purcha ser.</p> <p>Where it is suspected that a suit for land is prese-cuted for the ben efit of a champer tous purchaser , in the name of his vendor, a bill of discovery 'is the most effectual mode of ascertaining the fact. Or, if the nominal party be not in court, by himself or counsel, arule might be proper for showing whe ther the suit is not prosecuted by and for the benefit of the vendee.</p> <p>A mere lease of land to one in possession of an adjoining tract, will not give the latter a possession within the meaning of the champerty act of ’24; to make the lessee an occupant, within the meaning of the act, there must be such acts on his part, as will indicate to the world that he has taken the actual possession. And whether there is such a possession or not, is a question for a jury to decide.</p> <p>Judge Ewing’s construction of the champerty, act of 1824..</p>

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

<p>As a-ground for to revers^a'^e’-oree rescinding a sale °f la™b ll-the comp’t had f¿seC0dve®^3’ his title papers ^awn^eforethe hearing, and filed Jhatanj1tader bro’t.upoaanad gainst ^¡Tvcn" dee: — this would not be sufficient ground for a review.withoutve-ry strong reasons why. the fact was was rendered.— g^n^hia" dm papers were not' bufweTfused^vti the hearing.,</p> <p>. .... . A bill of review should not be ^g“naw°after a lapse of’time a wrnTf°erroi^ unless the delay counted for/</p> <p>A bill was filed to reverse a former decree: but the grounds are net sufficient to sustain it as a bill of review. Nev ertheless, it appearing that the party(now def’t) who had obtained that decree , had, under color of executing it, iniquitously and oppressively deprived the other party of important benefits that were intended to be secured to him by the decree ; and, as he not on Iy prays for general relief, but es pecially for the correction of those irregularities, and offers to perform the decree on his part: it is held, that the bill may be considered as a bill to have the benefit of the for mer decree; and that such relief as the pleadings and proof entitle the comp’t to , may be afforded.</p> <p>A purchaser of land — who had obtained the pos session — filed a bill for a rescis sion of the contract; obtained a decree to that ef feet, and for $200 —restoration of purchase money. The decree also directed her (the comp’t) to re-convey the land. —She made the deed , acknowledged it, and left it for record in the clerk’s office. This was done without the know ledge or consent of the grantee.— She then issued her execution on the decree for the $200, which was levied upon the same land ; the sheriff sold it , and she became the purchaser at $61 — lessthan a tenth of the price at which it was formerly sold to her. For the bal anee of the decree, another execution issued , and was levied on other land of the def’t — 300 acres, which was. also sold , and purchased ( by the same pltf. in ex’on) at $141. She afterwards died, having devised the first of the two tracts to devisees who obtained the sheriff’s deed for it; the other descended to heirs,who also obtained a deed : — If there were defects in the sheriff’s deeds, that fact could not be used to defeat the sales, in a court of equity, where the defects could be remedied.-As to the last mentioned tract of land — as the decree for the $200 was independent and absolute, and might be enforced by execution, and the sale was regular in form, the defendant in the ex’on (present comp’t) can have no relief, as to that tract_.As to the other tract — query whether a deed made without the grantee’s knowledge, and which he had never received, passed any title.-The due execution of the decree required-that the vendor of the land (upon the rescission of the contract,) should have the possession restored to him, as well as a re-conveyance; and, as that was not done, he has not had the benefit of the decree; the proceedings in re-conveying the land, as above, are held to be a fraud upon the decree, and upon the vendor against whom it was obtained; and it is therefore held, that he is entitled to a decree for a re-conveyance and restoration of the possession — upon the re-payment of the balance of the purchase money received by him. The devisees, coming in as volunteers under the fraudulent purchaser, can be in no better situation than she was in, and are subject to the same decree.</p> <p>As the 'Vendée,-. in the case supra, and her devisees have had the use of the land, the vendor is not required to pay interest' on the money he is to refund. But because of his delay .in asserting his right, the rents are not to be applied to extinguish the principal. But should a claim be set up for improvements made on the land, since the purchase under the ex’on, it can, in no event, be allowed beyond the actual enhancement in the value of the land, and may he met by a claim for rents, as far as they will go. For the surplus, if any,,the devisees may obtain a decree.</p>

<p>. AiiltUMPSIT,</p> <p>From the Circuit Court for Rockcastle CouNty.</p>

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

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

<p>Feom the Circuit Court for Garrard CouNtv.</p>

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

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

<p>Bill by certain heirs, to.set aside a deed by which a father conveyed his farm to two of his sons— upon the grounds that tlye grantor, at the time of the conveyance, by reason of old age and infirmity, was incapable of making a contract, and a failure by the grantees to furnish the support for their father and his family, which was to constitute a principal part of the consideration:— but held, upon the evidence recited , that the contract — not an unfair one — was contemplated & verbally made by the father, when he was fully com petenttomakeit, and was consum mated_ by , deed when — tho’much debilitated, in bo dy and mind, by disease, he was still capable of un derstanding the effect of the deed; and that he had enjoyed the support for himself and family, substantially as con templated by the contract, during his life — 6 or 6 yearsthe deed is therefore valid, especially as he declined cancel - ling the contract after he was restored to health. Tho’, if a deed were made while the grantor was a lunatic, it would require a re-execution when he was of sound mind, io give it validity — if the incompetency arose fi'om disease producing feebleness of intellect only, long acquiescence, after res toration , would amount to a confirmation.</p>

<p>Covenant..</p> <p>From the Circuit Court eor Garrard County.</p>

<p>The bill — its objects and allegations.</p> <p>The several an swers.</p> <p>The facts of the case.</p> <p>Decree of the cir cuit court.</p> <p>Devise of three slaves to a married woman for life, remainder to her children. Her husband mortgaged one, and sold his life interest in the others to the mortgagee, who sold all three to another,by whom they were carried off, irretrievably. The husband and wife filed their bill to regain the slaves, if to be had, if not, to recover their value —to be invested in other slaves for the use of the ' wife for life, then for her children; and to recover hire. The children, made defts., answered, concurring in the objects of the bill, and consenting— those objects attained — to a divestiture of their title. It is contended that the purchaser of the slaves can be made liable, in this suit, only to the extent of the wife’s interest; that the devisees in remainder can not unite with the tenant for life to recover the slaves, at law, or in chancery; and that there can be no decree for the value of th sir interest: but held, that the decree may be for the entire value, & for the hire, to be distributed according to the titles of the parties respectively. And the decreeagainst those who, having received & re moved theslaves, are accountable for their value, will confirm their title, and divest that of the devi-sees , and bar them of any future claim to the slaves themselves. If there is a decree against the mortgagee(sMp-) for the fall value of the slaves, he will be entitled to a decree ns. his vendee , for the value of the remainder, as an interest for his life was all he sold ; or there may be a decree against the mortgagee, for the val ue of the life estate, and against his vendee, for the value of the remainder.</p> <p>The mortgagee {supra) is liable for the value and hire of all the slaves; and his assignee of the mortgage is liable for the hire of that one; but for the other two, which were sold to him, without notice that his vendor’s contract of purchase had been changed into a mortgage, he is not liable for hire.</p> <p>The decree for hire may be against both, so far as each is liable, and against the mortgagee alone for the residue; or against the latter for the whole, and, in his favor, against his vendee, for the amount for which the vendee is liable.</p> <p>A court of equity will not aid a hus band in acquiring possession of the property or chases in action of his wife, without makingprovision out of it, for her and her children; and where property is specially set apart for the-wifo’s use,courts of eq. will treat the husband as a trustee, and require provision to be made for her. But, when a husband (without the aid of a chancellor) has acquired the pos session of slaves or other effects of the wife, they become absolutely his, and subject to his-debts: the chancellor will not then interpose to change the rights of the parties, or protect the property from the husband’s creditors. So, where a husband mortgaged the slaves in which his wife had a life estate, and they were transferred by the mortgagor, to a creditor of the husband — the hire having satisfied the mortgage, and the husband being insolvent — it is held, that his creditor may have a set-off of the value of the wife’s interest in the slaves, against a debt due from the husband.</p>

<p>An attorney bro’t suits against an insolvent debtor —first for A, then one for B, with an understanding that he should collect A’s debt first. Judgments were recovered, ex’ons issued, & returned no prop erty in all the ca ses. The atto. then proposed to an agent of A to unite with B in a suit in chancery to set aside a con veyance which the debtor had made to defraud his creditors.1— The agent made no reply; but im mediately took out a new ex’on onA’sjudg’t;but before it reached the sh’ff’s hands, the atto. had given him a new ex ecution on B’s judg’t. A having filed a bill to set aside the fraudulent deed, with in junction ag’stthe sale of the land, B , by petition, became a party to the suit, claim ingthat his ex’on having been first delivered to the officer had secured to him a prior legal lien , and praying that, if the conveyance should be set aside, his debt should be first paid from the pro ceeds of the land: —but held, that, under the eircum stances — involving the above in equitable proceed ings & violation of agreement — B was entitled to no priority, in equity ; nor did he ac quire a legal pri ority by thedeliv ery of his ex’on firstto theoflicer. It is the first levy of an ex’on, not the first delivery to the officer, that secures the priority.</p> <p>A suit in chancery,*» rem, being instituted to sub ■ jeet land fraudulently conveyed to thesatisfaction of a judg’t, the lis pendens is an equitable levy , and secures a pri ority of lien to the eomp’t.</p> <p>A party who, by petition,seeks to be preferred, in a suit to subject land fraudulently conveyed to the payment of the grantor’s debts, but who neither impeaches the conveyance nor attempts to proceed in rem, acquires no lien by the lis pendens. Nor can he, as the assignee of notes given asthe apparent consideration of the fraudulent deed, have tbose-notes satisfied out of the land in preference to a bona fide creditor who has filed his bill to set aside the conveyance. If the assignment was made bona fide, upon avalúa bleconsideration, that fact would be entitled to its influence in the question whether the deed was frau dulent or not.</p>

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

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

<p>Chancery has jurisdiction of a claim by heirs to a slave received to be held in trust for them.</p> <p>An adm’r having renounced, or waived, his right to a slave of the decedent, as assets , the- heirs may maintain a suit for its recovery.</p> <p>The statute of limitations will not confirm the title of one who received a slave as agent or trustee for heirs, nor bar their bill for its recovery — un less there has been an open renunciation of the trust five years before the suit, and unless, also, at the time of the renunciation, the heirs, or some of them, labored un <ler no saving dis ability, or unless none of them labored under such disability for five years immediately preceding the filing of the bill. The claim of one set of heirs to a slave, cannot be barred, or materially affected,by a decree, in a suit to which they were not •parties, for a sale of the slave, and distribution of the proceeds, among another set of heirs: the title of the former being established, a perpetual injunction of the decree for a sale &c. was pro per. — The widow being no party to the first suit, the decree, for a sale, would not affect her interest; and if she were a party, that w ould not affect the rights of the heirs in the second suit, if she had died before their decree was rendered.</p> <p>To a bill which seeks to enjoin the execution of a former decree, all the parties to that decree must be made parties.</p>

<p>Appeal FROM A J. P.</p> <p>Fhom the Circuit Court eor Pendleton Countv.</p>

<p>The case.</p> <p>t/pon the dissolution of a partnership between B & M — B takes the obligation of M, that he, M, will pay all the debts of the firm; in which a creditor of the firm joins as surety: held, that this obligation operates as a release of B from that ■creditor’s demand. And B can , therefore, maintain no action, on the covenant of his former partner, for a failure to pay that debt.</p> <p>A general’verdict upon a dec'n, in covenant, containing an insufficient breach , cannot be sustained. It is error to render a judg’t on such a dec n & verdict.</p> <p>A covenant to pay all the joint debts of the parties , does not hind the coven-antor to pay any of them before they are due,nor until a reasonable time after.— A dec’n, on such a covenant, that does not aver that any of the debts had become due, is defective.</p>

<p>Bill for dower, exhibit &c. and answer.</p> <p>Decree,</p> <p>Allegations — in _that compl’t was the wife of one who was seiz’d ofthe land; his death; his a-Henation of the land during the coverture, and of possession, with claim of title, by the defendant,are prima fade sufficient to entitle the compl’t to a decree. It is not indispensable that her bill should negative every fact, which may possibly exist, and be incon sistent with her claim.</p> <p>An express allegation that def’t obtained & held the land under deft’stitle,would be sufficient as to title and jurisdic-?’on-, ?°> als0’ elusion from the allp™r where comp’t is alTthiTfact^the answer aids the J1</p> <p>The production of a deed conveying the legal title to the husband; proof that he was in posses sion of the land, and aliened it du ring the covert-ure, and that defendant claims & holds it, are suffi cient — in the absence of evidence that he holds or claims under an adverse title, or any other fact inconsistent with the right of the widow — to support her claim to dower againstthe husband’s alien-ee. She is not bound to show a regular paper title.-</p> <p>A widow,claiming dower inland which her hus^'ic’h im-Pr°vementshave been made since his alienation, is entitled — not to a third in value mented bythosf mCnt; TuNtoa' in . va,ue without including them in the estimate,</p>

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

<p>statement .of the pase, and plead-mgs'</p> <p>Decree, in the chan'</p> <p>The court of appeals has no authority to revise a decree of any court of equüy °f this State, granting a divorce— even tho’ the decree may bedeem ed void for want the^o^rt^hat rendered it.</p> <p>So much of any decree m a dilates to the prop tieY,is^subjeefto revision in the court of appeals; and, in such revision, it may be necessary for the court, incidentally, to determine whether the court that rendered the decree had jurisdiction, and, consequently, whether the decree was valid or void; and, if a want of jurisdiction appears — though the de cree for a divorce cannot be touched — what relates to the property will necessarily appear to be unauthorized, and must be reversed.</p> <p>The act authori-ces, gives but a tíon — whiclfcan ?ot be ei?lai'ged by a waiver of objections. It band who was never domiciled here; nor will his appearance and answer, after bill does not author ize the proceeding against ahus filed,confer the ju Vlde</p> <p>Of the nature of trac™-which,s«t generis, differs from all other contracts; and cannot be dissolved by the parties; but may be by the sovereign power, exercised in legislative or judicial form, as the cause may justify, with or without the consent of both parties; and is not within the constitutional inhibition of legislative acts impairing the obligation of contracts.</p> <p>The act of 1809, concerning divor ces, is constitutional. But it does not apply where the husband was never resident,domiciled or commorant here; nor give any jurisdiction in such a case.</p> <p>No State or na-^"dissoive^he m¡miago conS^o^fy oth erstateornation, domiciled within the of the attempting to ex eroise the power. But where a hus band and wife, ího/ c?J,tirraing their own conn-^miriledfbona fide, in another, stems^may’reg-u,ate>OT even ab úSa*’contract*: but whether U.1UIW SUUUlUj ill such case , be more than a tem porary separation, a mensa et thoro. ■</p> <p>Wherever the do lnieil of a husband is, there also, in legal contemplation , is that of the wife; ■even though she may have separated from him, and have an actual residence elsewhere.</p> <p>A wife residing here, of a man who was never domiciled here, would certainly be entitled to the protection of the law ; and the sovereign power might even dissolve the legal, as well as the actual, union between them, so far as the courts and citizens of ■this State were concerned ; but such act would have no extraterritorial operation ; and the divorce laws of this State were never intended to apply when neither the residence nor do-micil of the husband, nor the selected , permanent abode of the wife, is in this State. The prohibition of another marriage,by a husband to whose wife a divorce is granted, who was never sidled ’ in^tlfia-State.</p> <p>Objections to the J^sdiction of a court of eq. over an absent def’t, yjated'b^hís ap" pearing and filing a“ ^u^statute does not confer Jcree a divoroe a vinculo, against a husband never domiciled in this State — his appearing and answering the bill will not obviate the objection of want of jurisdiction. Nor can the jurisdiction result from the fact, that the wife is an infant, and, as such, entitled to the protection of the chancellor : he has no more power to grant a divorce to an infant, than to an adult. But — Though the powers of chancellors in this State are merely judicial and statutory, and are far from being co-extensive with the prerogative powers exercised by the chancellor of England — it is competent for a chancellor here to protect an infant from an abuse of parental authority, and to protect a wife, infant or adult, from abuse or injury by a brutal husband.</p> <p>A decree for alimony must secure to the wife an annuity , or other personal right to maintenance: an absolute right to property cannot be decreed in a cáse for alimony.</p>

<p>Controversy be-. es0one2of which' was formed upon, the other. Ori-ofthe contriver-sy.</p> <p>Conference , by committees, but no adjustment. Authority of the committee of the old church, as to a reference.</p> <p>The reference . and award.</p> <p>The bill, and its objects.</p> <p>Whether the one or the other is, or is not, ‘a baptist church,’ is not a necessary question, and, therefore, is not decided.</p> <p>The principal questions involved in the decision.</p> <p>The dedication of a meetinghouse to the use of a religious society , creates a charitable trust— enforcible in eq. And, where the object of a bill is to secure a trust, secure peace, and enjoin multiplied invasions of an alleged right,chy. has jurisdiction of it.</p> <p>At common law, a religious society, not incorporated, could not sue in its aggregate name, nor in the names of its agents or trustees not vested with a right of proper - ty. But an act of this State, of 1814, provides a mode in which trustees appointed by any organized society of Christians may hold land (notex ceeding 4 acres,) devised or conveyed to them, for the use of such society, and may maintain ac tions &c.5n their own names, for the safe-keeping and preservation thereof. And held, that, where a church, called ‘the Church of Christ,’ was in possession of an acre of ground, a moiety of which had been devised to the use of‘the Baptist Church’ in írc. and upon which the society had erected a meeting house by contributions, which they had occupied — their right unquestioned — for 12 or 15 is contemplated years ; and had after the passage of the act, elected trustees in con formitv thereto, such church must be considered as a ‘Christian society, ’ embraced bv the act — and whose trustees may maintain, in their own names, any such suit as by the act. Query — whether trustees holding only an equity, and not the legal title, can maintain any suit by virtue of the act: but held, that the legal title to a moiety gives the right-</p> <p>A portion of a religious society having seceded, andformedanew church, a contro versy arose as to their right to use the meeting house-which the old church denied. A committee ofthe old church was authorized to submit that question to arbitrators , in which the new church concurred, anda submission was made. If tho committee submitted more, as if they submitted any question as the1" old "church they exceeded anTtheTsubmfssion and award Yet6had^tbear-bitrators, under ded merely^ that bad a right to use the house, as that was a matter within the an ri^the"avrard wouid have been the°y decided that neither party mClth”?meetSng house, and yet that each should enjoy, alternately, an equal use: held, that the award is void, for repugnance and illegality upon its face, and must be disregarded in a chancery suit to settle the rights of the parties — especially, as a comp’t seeking equity should do equity, anti as, also, the old church docs not seek to enforce the award at all. A meetinghouse ted for the benefit of the BaPtist society at &e, and a church call-having occupied’itforif years or more, without objection, their right still to occupy it mu3t be admitted . And the right of a new church, composed of expelled benTof*Tim^oíd °“e> tlie use of the house, can be sustained on-the '-ict of ^lSid" But— The act of 1814, by virtue of which alone, a suit can be maintained , by or for any church or congregation of Christians, as a body — contains provisoes, declaring that, if any schism takes place in a church, for any cause other than immorality of the members, the trustees shall have no power to prevent either party from using the house of worship, a part of the time, in proportion to their numbers — not interfering with the appointments of the other. And, where the property of a society was dedicated to its use since the passage of the act, the right of the trustees to sue must be considered subject to those provisoes. The provisoes give no new right to either party of a divided church, but withhold from each the right of coercing the other by the civil power. And, where one party appeals to a civil tribunal, under the act of 1S14, relief can be given only within the measure prescribed by that act. Hence, a decree prohibiting one branch of a divided church (whose members are not convicted of immorality) from using the meeting house erected before the schism, is erroneous. The use of the house must, by the decree, be secured to both — to each a part of the time, proportioned to the relative numbers, as they may, from time to time, be found to be. And the chancellor may, from time to time, make such supplementary orders as may be necessary to give the proper effect to the decree.</p>

<p>Readjustment of the accounts, after a former reversal; and tho’ this court doubts as to various items , sufficient cause for disturbing the settlement, does not appear. When this case —upon a bill to close the acc’ts of a former partnership , was formerly here, it ap peared that one of the partners had furnished almost all the capital, and it was contended for him that he should either be allowed a share of the pro fits in proportion to capital, or else interest on the sum he put in a-hove what the other furnished : but the claim, in either form, was disallowed. The cause now again here, for the revi sion of a new de cree, and it appearing that, at the time of the dissolution, there was a large balance due from onepartnertothe other — itis/reM, that the question whether interest should be allowed on that balance, is not concluded by any thing iq the former decision,but remains open. — . And—</p> <p>Where, upon the dissolution of a partnership,there is a balance due to one of the firm from the other, which he fails or refuses to pay over; or where one had put in more capital than the other, which, upon the dissolution, & the debts being paid, he has an immediate right to withdraw, but the other retains it— the partner who is thus indebted, is liable for inter est from the time of the dissolution till he pays over the money.</p> <p>If, in any case, the time of the dissolution ofa accounts aré uní liquidated, & the balance due to ■the creditor partner, uncertain m amount, can excuse the debtor paymentl°of interest; it will not debtorWh partner was the book-hound u^know the state of the partnership accounts, and the extent of his owu (indebtedness,</p> <p>A decree settling partnership accounts , should extend to land, which had been purchased on. joint account. The debts due to a partnership, at the time of a decree closing the concern, should ■ be divided between the partners.</p>

<p>Mill Case.</p> <p>From the Circuit Court por Spencer. County.</p>

<p>A judg’t appealed from is not merged in the ap peal bond. Nor does an unsatisfied judg’t on the appeal bond affect the original judg’t. The pltf. (or his personal representative af ter his death,) may still have an ex’on, or maintain a scire fa-cias, on the original judgment. When a person has died at his domicil in another State, where administration of</p> <p>his goods &e. has been granted; & having assets in this State, another adm’r has been appointed here, the latter has the paramount right to all the assets remaining unad-ministered within the jurisdiction* of this State.</p> <p>Qu. whether a paymentto a foreign- administrator would bar the-right of a local administrator.</p>

<p>Statement ofthe casa</p> <p>It is well settled officerImvin \e vied an ex’on upon land , sells more than is necessary to satisfy the ex’on, he exceeds his authority, and the sale is void in toto. But—</p> <p>A sheriff, having levied a large execution on a valuable town lot, sold the whole of it, for what he supposed to be the precise amount of the execution ; but it was afterwards discovered that, in consequence of a trifling error in calculating what the ex’on amounted to, the lot had been sold for six and a half cents more than enough to satisfy it. There was no evidence or reasonable pre sumption, that any part of the lot would have produced a sufficient sum,or that any more than the true amount of the execution would have been bidfortbewhole; or that the lot could have been so divided as to have left to the debtor a piece of any value: held, that the circumstances of this sale do not show that the sheriff did in fact exceed his authority; that the sale should not ho deemed void for so minute an error — injurious to no party, and is good and valid, so that the title passed by the sheriff’s deed.</p> <p>In selling land under ex’on, the officer has a right to sell enough to cover his commissions, in addition to the sums specified in the execution.</p>

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

<p>The act of 1793, ‘ to regulate taverns aijd restrain tippling houses,’ §4, defines two offences :— (1) keeping a tip pling house; (2) retailing spirits without license, unless Sf c.</p> <p>One may sell a quart of spirituous liquor, ór even less, in his own house, on a single occasion, without keeping a tippling house; and, for that of-fence, the fine is £3 only: the cumulative penalty of $50, imposed by the act of ’31, is incurred only by keeping a tippling house. Proof of selling liquor by the half pint, to be drank in the vendor’s house, conduces to prove that he kept a tippling house; but evidence of a single sale of a quart, and that it was drank in his house, is not con elusive proofthat he kept a tippling house. And—</p> <p>Instructions that the fact of selling spirituous liquor, in any quantity, to be drunk in the seller’s house, is evidence that he kept a tippling house — are too broad, tending to mislead the jury, and cannot be sustained.</p>

<p>The act of ’93, ‘to regulate taverns and restrain tippling houses,’ imposes a penalty of £3, for keeping atippling house, or , for retailing liquors without license —two offences. The act of 1831 adds $50 to the former offence only — leaving the latter as it stood before.</p> <p>A general charge of keeping a tippling house without a license, makes a good indictment. But if, besides the general charge, the indictment specifies the facts, and they do not amount to the of-fence, the indictment is bad.</p> <p>An indictment al leging that the ac cused kept a tip-ling house &c., in this, that, on a specified day, and on divers other days, between &c. he did sell by retail, divers quantities of spirituous liquors to persons unknown; which— he did suffer and permit to be drunk in his said house, he, the said &c., then and during all that time, not having a license &c.-clearly charges every fact essential to constitute theoffence of keeping a tippling house,with out a license to keep a tavern ; and requires the fine of $'60 upon conviction. But-A single act of selling liquor to be drunk in the house, without a tavern license , would not be suf ficient evidence of the offence of keeping a tippling house.</p>

<p>The facts.</p> <p>The action, judg ment &c-</p> <p>Instructions,</p> <p>Annuity of red®mPlj°“ 1S “ot under the mort-mortgage debt: such levy and sale are void.</p> <p>The simple de-bleprop^rty”by a debtor after the up/n'il'is not— i“ this State , where it is common to permit such retention— necessarily a fraud upon other creditors of the same debtor; and if such permission is not extended beyond the time when the sale ought to be made, it should not be deemed even prima fade evidence of fraud: though it may be slight evidence of collusion. But—</p> <p>If a debtor, on whose movable property an execution is levied, is permitted to retain, and consume or sell it; or if he is allowed to retain it indefinitely, without any effort on the part of the creditor to have it sold, this, in the absence of countervailing proof, would be sufficient evidence of a fraud upon (>- ther creditors.</p> <p>Qu. — whether there should be</p> <p>a reversal, for instructions technically erroneous , when the verdict, with or without them, must have been the same.</p> <p>The mortgagees of a slave (by their agent,) forcibly tookitfrom a purchaser, to whom the sheriff, upon selling the equity of redemption under execution, had de livered it ; and the slavq was af-terwards sold,& the proceeds applied to the satisfaction of the mortgage debt. If the purchaser could maintain trespass for such a taking, his dam ages could not ex ceed the value of the equity of redemption , which, only, he had acquired by his pur chase.</p> <p>Where an agent had authority from two different constituents, for the same act, tho’ he ostensibly acted under the one, he may justify under the other.</p> <p>Mortgagee, after condition bros lien, has a right ■ — -when there is no agreement to the contrary — to assume the possession of the mortgaged property. Ilut, then, he will be accountable for rents, hire, or other income, derived from it— which goes to keep down the interest and reduce the principal of the debt. This is the common law rule; & it is not changed by the execution law of ’28, (§36,) which authorizes the sale, under execution, of all the right, title and interest, legal or equitable, which a mortgagor has. If, when the levy is made, the mortgagor is in possession, the sh’ff should take the property and deliver it to the purchaser, upon his giving bond, not to remove it out of the State within 12 months —as required by the act: without the bond, the purchaser has no right to the possession , as the bond is for the protection of the mortgagee. And still the mortgagee is not bound to let the property go to, or remain with, the purchaser ; but may assume and hold the possession whenever he will-unless there is a contract that the mortgagor is to retain the possession ; which will inure to the, benefit of the pur clraser: and an assignee, or purchaser, of an eq. of redemption , can have no better interest, or higher right, than the mortgagor had.</p> <p>So, where the eq. of redemption in a slave was sold under a Ji. fa. and the purchaser gave the requi red bond, and re ceived the slave, and an agent of the mortgagees seized, removed, and retained tire slave; and the purchaser bro’t an action against the agent, for the alleged trespass, it is held, that— in the absence of proof of a right of possession, by agreement, in the mortgagor— the deft, may justify under the authority derived from the mortgagees.</p>

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

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

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

<p>Guanoed.</p> <p>From the CmcuiT Court for Franklin County.</p>

<p>To a scire faci-as on a recognizance, it was objected that the sci. fa. did not aver that the recognizance was certified & transmitted to the court. But it is copied into the sci. fa., and, on its face, purports to be certified by the justices to the court, it is averred to be of record there, and' is made the foun dation of the pro ceeding: this is enough; the objection unavailable.</p> <p>Where the condition of a recog: nizance is, that the principal cog nizor shall appear in court on the first day of the next term, & surrender himself into custo dy, to answer a charge of felony —a more appear anee in court at the time specified, is not a compliance with the condition ; he must, also, surrender himselfin to custody; otherwise, he may he called on any subsequent day of the term, and, failing to appear, the recognizance may be estreated.</p> <p>der the control of is mother, who A plea, to a sci. fa. against the surety of a cogni zor charged with felony, that he was an infant un removed him out of the State , whereby the sure ty was prevented from surrender ing him, is insuf ficient. She has no right to control him contrary to the right of the State & the bail.</p> <p>Infancy or cover-ture of a principal cognizor , could not, at com mon law, be pleaded by the surety; and our statute expressly authorizes nizances to be taken of femes coverts and infants; and, in case of forfeiture, the sci. fa* lies against the feme s by joining hov husband, and against an infant, by joining his pau-nt or guardian.</p>

<p>The action.</p> <p>The facts,</p> <p>Motion for a non suit: overruled.</p> <p>Evidence rejected.</p> <p>Instructions giv-</p> <p>Instructions asked and refused.</p> <p>Verdict &c.</p> <p>An action for a trespass upon im movable property, can be maintained only by a plaintiff who bad the actual possession when the act complained of was committed.</p> <p>To sustain trespass for an injury to movable property, or tro-ver for its conver sion, the plain-, tiff must have had , either the actual possession or a right to it from one holding under, or at least not adverse to, him.</p> <p>Where one happens to be in the possession of another’s property, not holding it ad versely, the owner has a right to assume the imme diate actual possession, and that right draws to him a constructive legal possession. But—</p> <p>Where property is held for the time being,under a contract which gives the possessor a right to hold it against the owner — as in case of a hiring for a term unexpired — the right to maintain trespass for an injury to it, or trover for a conversion of it, is in the bailee; and neither of those actions can be maintained by the general owner. His remedy is a special action on the case, for the consequential injury to his reversionary interest.</p> <p>The general rule jfan1 never mam-tain trespass, or lesslíé can dolt immediatelyafler the tort complain edof; but where cause of ae' tion Tctvoctcts the case forms an exception to the general rule; but that is never the case'where the injury is to personal property,</p> <p>Tho’ a landlord cannot maintain trespass -for cutting timber upon land in possession of his tenant — for a conversion of it after it is cut, he may maintain trover; for the tenant’s interest in the timber ceases upon its severance from the freehold, and the right of property in the landlord draws after it a constructive possession.</p> <p>Where a slave is let for a term un expired, and so the right of possession in the bailee — if a stran gor gets the slave ■tortiously , and holds him until after the expiration of the term, the owner may maintain, trover for the conversion continued after the right of possession , and consequent constructive possession, had reverted to him. But for a conversion during the term, the right of action, in trespass or trover, is in the bailee. The owner and his bailee can not boi/rhaveactions forthe verysarae tort: and hence, where the conversion is not continued beyond the term of hiring — as where the slave dies before it expires— neither trespass' nor trover can be maintained by the owner. His remedy is by action on the case, Mi supra.</p> <p>An agent is, in general, a competent witness to prove his own acts within the scope of his authority ; but not where the principal is sued for a tort done by the agent, while in his service, but without his authority ; because, as a judg’t against the principal fixes the agent’s liability to him, and the record will be conclusive as to the amount of damages , the agent is directly interested.</p> <p>A negro man em ployed upon the cars of a railroad, asked the agent who managed them, to let him put Philip, another negro, in his place for the day; but the agent, finding that Philip was a slave, refused, and told both that he could not go.— Nevertheless,?., at the instance of the other negro, got on to a car, andwent7miles, and there assisted some in the work, before he was observed by the agent; who did not force him off then, but let him remain until they went7miles more, to their point of destination. There the agent told the hands in his service , addressing them by the appellation ‘hoys,’ to get down and stop the cars_ Philip got down among them, but being inexperi enced, blundered and fell, and the wheels of a car passing over his leg, gave him a wound of which he died in a few days ; and his owner bro’t tro-ver against the railroad co. for an alleged conversion of the slavo: but held, that the mere omission to force the slave from the cars when first discovered, was not,perse,acon version of him— especially as he could be returned in the cars with more safety and expedition, than he could be got home by being sent a-foot; and, upon the whole case, the acts of the co’s agent were not such as to render him or them liable for damages.</p>

<p>Statement of the case-</p> <p>A motion for a new trial precludes, while it is pending , all motions for further proceedings in the case.</p> <p>Affidavits used on a motion for a new trial, which are in conflict with the record, are unavailing : e. g. verdict against 12 defts.; some allege that they were never served with process, & never authorized the plea that was filed; but the language of the plea is, “the said defts. (naming them all) come in their proper persons” &c., and after they had been served with process , and a replication was filed, the defts. join issue: the objection to the verdict is obviated by the record.</p> <p>p|ace atacertain time, his own de-A dec’n filed aP ter the writ issued, and no order of court for filing it ; but a plea craves oyer of the dec’n, which is given: no advantage can be taken, at a term subsequent to the plea, of the want of an order filing the declaration. When a party (on the trial of an issue on the allegation that he is a nonresident) has proved that he was com mo-rant at a certain clarations as to his residence there, then, may be proved as part of the res gestae. But bis mere statement that he resided at such a place, unconnected with the fact, proved otherwise, of his being there, is wholly inadmissible — its admission, ground for a new trial.</p> <p>Defts. who have pleaded pltfs. non residence & failure to give security for costs, in abatement, and withdrawn the jplea,may, nevertheless, more for security for costs; and if it appears that pltf. is a non "resident when the motion is made, it should be gran ted</p> <p>A pltf. who was offered , in the court below, a longertimetoget security for costs than was given, but refused it, cannot complain in this court,that the time was too short.</p>

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

<p>Detinue.</p> <p>FROM the Circuit Court for Christian County.</p>

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

<p>A party wished to buy a tract of land, and, not being favorably known to the owner, who resided in Indiana, got his neighbor, a friend of the owner, to write to him, proposing the purchase, as for himself— An answer was received in due time, consenting to the sale, and stating the price and terms : to which a reply, accepting the offer as made, was written and mailed, in a reasonable time: as the subject of the con tract was sufficiently indentifi-ed by the letters, as soon as the last, acceding to the terms offer’d, was put into the post office, there was a valid contract closed between the parties. .</p> <p>Another party , who also wished to buy the land, and with a full knowledge of the correspondence , and that the letter closing the bargain had been despatched, secretly sent an agent to anticipate its arrival & buy the land, nominally for himself, but in fact for his employer ; and who was so far successful, as to obtain an execu-tory contract for the land,-of which the real purchaser took possession , ostensibly as the tenant of his agent. But the first purchaser , afterwards , by adding something to the consideration, obtained a conveyance of the legal title:— Held, that he has the superior equity; and a court of chancery will not interpose to divest .him of the legal title, for the benefit of the underhand purchaser, holding by exec-utory contract. Nor would it, if the terms of the first contract had been vague, or even not evidenced by writing.</p> <p>Where a party, secretly the agent of another, purchased a tract of land, which his principal took possession of,ostensibly as the tenant of his agent; and the a goncy remained concealed, until, in the progress of ■the suit instituted, in the name of the agent, to obtain the legal title, he is compelled, by cross bill, to disclose it-he cannot complain that he,instead of his principales made liable for rents and profits.</p>

<p>A partner cannot maintain trespass or replevin ag’st his co-partner , for any of the partnership property. The property of a partnership consisted of a drove of hogs — which one of the partners had in his possession. The other took them from him. To regain the possession, thus lost, the former sued out a writ of replevin, by the service of which, the hogs were re-delivered to him. At the trial, the defendant avowed the taking, and justified it, for that, he was partner with the plaintiff in the hogs, and had the same title and the same right of possession, and therefore he took them, as he had'a right to do. To this avowry, the plaintiff pleaded that the hogs were not partnership property, but were exclusively his own. And an issue on that plea having been found against him — it was contended, that, as the verdict found the avowry true, and was tantamount to a finding that the hogs were partnership property — the plaintiff, having then the possession, (acquired by the writ,) had a right to retain it; and so there could be no judgment for a return of it to the defendant. But held, that the defendant was entitled to judgment pro ret orno: for where one has been deprived of property by an abuse of the process of the law, the law should restore it, and place the parties in statu quo-. Videvost, page 285-6.</p> <p>When the deft in replevin avows, he becomes an actor; and (at common law) upon the truth of his avowry, will depend his right of restitution.</p> <p>The avowry is in the nature of a dec’n, and of a justification also; for if the avow-ant fails to sustain his title as laid in the avow-ry , he fails in his justification, and can have no judg’t for restitution, but is liable for damages.</p> <p>The deft, (it is said) may plead property in a stranger ; and if found for him , the action is defeated,&he must have judgment pro retorno.</p> <p>Or he may admit that the pltf. had a right to the pos session when his writ issued, yet justify the previous caption; and then, though the pltf. will retain the goods, the deft, will be exempt from dam-</p> <p>Whenever the fy the taking, establish the defendant’s right of possession, and show that the plaintiff has no exclusive right to the property — there must be judgment of restitution. And, if it appears that the defendant has a right of possession, without an exclusive title, there should be judgment for restitution of the possession, to be held according to the right.</p> <p>By the act of’BO, tlon'of replevin! if the pltf. fails to to^the'property replevied,the con is broken,and he and his sureties are made liable to the deft, for the value of the property, unless it be restored ; but as a judg’t for a return of the property to the deft, according to his right, would seem to be essential, to perfect the right of action upon the bond, such judgment should be render’d when ever the plaintiff fails in his proof.</p>

<p>Bill — charging that an absolute deed was intend ed only as a security for money lent, at usurious interest; & seeking to redeem. Answer— denying the principal allegations ofthe bill in general terms — as, that the consideration was not as stated in the bill, & stating it differently, without giving the particulars of the purchase ; alleging that “ what the compl’t says about the $98 and usury, is false, without denying specifically the precise charge of usury in the bill, or that there was any usury prac-tised ; and not denying specifically, that the com plainant was to have the right of redeeming the land, by paying the money with usurious interest. Held, that, notwithstanding the vague denials of this evasive answer, &. as there is some proof of usury, tho’ the extent of it does not appear, the comp’t must ba permitted to redeem.</p> <p>The bill alleging that the loan was in Com’th’s paper, and the answer not denying that allegation, the value of the paper must be taken as the sum loaned.</p> <p>The amount of usurious interest to be ascertained, in the conrt beiow,by a com missioner , and deducted from the debt; and upon payment of the balance with lawful interest, the conipl’t to have the land re-conveyed to him.</p> <p>Any deed, or o-therwnting,how ever absolute upon its face —if given in fact to secure a usurious loan, may be im peached by parol proof.</p> <p>The practice in this country, upon a bill to redeem, does not require a formal tender of the mo ney before suit, nor that it should be brought into court: an ofFer in the bill, to pay the money due, jg sufljoient; as the court will take care that the defend’t gets his money before he is divested ot his title or security'</p>

<p>The action; bond, fondltlon > ?nd ed.</p> <p>A commissioner appointed by a court of chy. to sell the lands of heirs, gave a bond with condition that he should discharge the duties required of him by the decrees in the case: as it was no part of the condition, that he should pay the money rec’d for the land to the heirs, a breach alleging a failure to pay it to them, when therehadbeenno decree requiring such payment, is ill assigned.</p> <p>Plea, with leave &c.</p> <p>The evidence.</p> <p>Instructions,</p> <p>Verdict &c.</p> <p>T1\e b°n<3 wllich a decedent gave for the discharge of his duties as commissioner ill chancery to sell the land of heirs, secures no rights to — imposes no duty upon , his personal representatives ; nor do the decrees in the case. If there was no breach by him, there could be none by them, after his death. 'They were not bound to collect any of the sale money remaining due at the death of the testator; nor liable on his bond for a failure to collect it. And—</p> <p>Where the commissioner, having sold the lands as directed by the decree, on credit, had taken bonds payable to himself, and being di rected by an order of ct. to collect them, took, in part payment of one of them, a note on solvent men, also paya ble to himself, and then due:— held, that this was not such a conversion of that amount of the sale bond, nor of itselfsuch a failure in the duty of collecting, as rendered the commissioner, or his ex’ors, liable, as for a breach of his bond.</p> <p>-: — ;— YY QQyg tii© facts upon which in-«ructions are pre„ dicated, are clear )y proved, and ‘her.e IS n° c0"-dence, if the Ct. anTgive^hetn-sanctions per-3°”^ hypo-thotically, as it ju°ry, suei^tech-nioai en'or “ay reversal™1™ °*</p> <p>The^fact^(found the commissioaer rec’d the note in payment (wt supra,} and allowed the delay in its collection, with the assent of the heirs, who were entitled to the proceeds, exonerates him from liability for its ultimate loss, by the insolvency of the promissor. If some of the heirs were infants, and not bound by the assent of the adults — still, upon a joint bond to all (given by the cotn’r to comply with the decree,) there could be no recovery for a cause of action which a part of the obligees had discharged. If the guardian of the infants assented, he or she may be liable to them. And if there was no assent for them, their interests might have been protected by a special order of court, which the com’r would have been bound to obey, and for disobeying which, he and his sureties, would be liable on his bond,</p>

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

<p>Statement of the case‘ Assumpsit for money paid by a surety, is a modern remedy, foun ded upon the prin ciples of contribution established in courts of equity. In equity, it is well settled that a surety who has paid the debt, is notentitledtocon tribution when re numeration maybe obtained from the principal, by ordinary diligence.- — -One of several sureties may maintain a bill against his co-sureties and the principal, before the debt is paid; for indemnity from the latter, if it may be obtained from him; if not for contribution. -Where there are more than two sureties, and one of them is insolvent, equity distributes the burthen equally among those who are solvent. But—</p> <p>eovery, it is said, is only according to the number any'reward to*tbe insolvency of any of them. At law, the re-</p> <p>Assumpsit can-effothüSiate by’one of sever-haspaidthedebt” against a co-sure-hution°,r without proof of the hi principal debtor!</p> <p>From the actual payment of the debt of an insolvent debtor, by a surety, the law implies a promise to him, by each eo-surety, to reimburse him a ratable portion of the sum paid. And it is not necessary, in as-sumpsit for such contribution (tho’ Star/de says otherwise , ) to prove, that an application was made to the deft, for contribution, before the payment was made.</p> <p>Three sureties «fethemUnhadTa° ken a mortgage pal™ebtorftoTn-demnify them against the same and other liabilities^oneofthem broV assumpsit against the third surety, who had no indemnity,for Hezl'thatüíeac tion cannot be ouTshowlnJthat the mortgaged properl^dLpoT-ed of, without ha ■debt r which contribution is</p> <p>The only appro ipriate .remedy in such a case, is in equity; where alt parties interested may be brought before the court;. the mortgag’d estate properly distributed, and, in case of a deficit, a decree may be rendered for contribution. —terminating the controversy.</p>

Covenant Fb.om: the Circuit Court for Jefferson County. As the Court found no question, “ either new or difficult,” in the record of this case, the decision was not written with any view to its publication. But a petition for a re-hearing having been presented, it is made-the duty of the Reporter, by the act of 1838, (5 Dana,. vi.) to print the petition and the decision with it.

<p>The discovery of a witness by whom material facts can be proved, is not per se ground for a new trial, if the same facts were litigated on the trial had.</p> <p>The expression of a party’s opinion by affidavit, that the jury was prejudiced against him, is entitled to little or no weight. But an affidavit stating those things, may go to aid and strengthen other grounds.</p> <p>Recital of the ev idence in an action for a breach of a warranty of the soundness of a slave, and conclusion that the evidence did not justify the verdict found ; and that, upon that ground, strengthened by an affidavit of the discovery of new ev idence, tho’ to a. point before litigated, and that the jury were, in the opinion of the party, prejudiced ag’st him,a new trial should be granted.</p>

<p>Replevin.</p> <p>FROM the Circuit Court for Jessamine County.</p>

<p>Appeal PROM A J. P.</p> <p>Fiiom the Circuit Court for Knox County.</p>

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

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

<p>Chancery.</p> <p>Fhom: the Circuit Court eor Fayette County.</p>

<p>A party for whose benefit an ex’on was issued, had it levied on a qr. section of land, which he bid off, at the shff’s sale, at $20 — evidently a ‘ruinous sacrifice:’ & hav ing admitted another as his partner, the deed was made to the two. The ex’on debt- or having conveyed the land before the levy, these purchasers filed their bill against him & his grantee, charging that his conveyance was made to hinder and delay creditors — -es peeially the pltf. in the ex’on, and praying to have it set aside as fraudulent, or for a release ofdefts’ title, and to be let into possession,and for general relief. The answers denied the fraud, and the proof was not conclusive, but satisfactory to the circuit judge,who set aside the deed &e.; and his decree-the evidence leaving the question of fraud doubtful — would not be disturbed by this court, for that cause. But, though the ex’on debtor would have had no right to complain of the sacrifice of the land, caused, probably, by his own act in embarrassing the title — yet, as the compl ’ ts have chosen (though they have remedy at law) to seek relief, as compl’ts, in ch. -where those who ask equity must do equity— and, as the owner of the ex’on ought rather to have filed his bill before the sale, and thereby prevented the sacrifice — it is decided, that the com plainants must consent to a resale of the land, as the condition on which they shall have a decree to relieve them from the fraudulent conveyance ; which they may have, in that way, under their prayer for general relief. But, if they refuse their assent to that condition, their bill must be dismissed, leaving them to their remedy at law. If they give the assent, the land, or enough of it to pay the debt, must be sold by a commissioner; the $20 paid by the purchasers to be refunded out of the proceeds.</p> <p>A court of equity will not enforce an unconscientious bargain; neither should it aidi in giving effect to one, by clearing off incum-brances , giving; possession &c.„ but upon equitable terms.</p>

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

<p>Each individual who unites with another or others in a general partnership, or in a single adventure, under an agreement to participate in the profits, becomes liable for all debts contracted by either of the partners, in respect to the business or adventure.— And though an agreement between the partners, that one or more of them shall not be liable for debts, is good as between them, it does not affect the rights, of a creditor to hold them all responsible-unless he knew of the agreement, & trusted to him or them only, who,by its terms, were liable.</p> <p>The statements of parties that they were not to be liable, as partners, for debts contracted for goods to sell again, not made to the creditor, but in connection with an avowal that they were to participate in the profits, does not necessarily imply that they had not authorized the use of then-names & credit. Such authority may well be inferred from the fact that they received boxes of goods njarked with the address of a firm which included their names, Sr invoices in the same style, and made no objection to such use of their names.</p>

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

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

<p>In an action for an assault 8/- battery, the declaration charges also that defts. tarred and feathered the pltf. and tore his clothes: a plea which attempts to justify, without denying or answering these charges, is insufficient.</p> <p>Private persons have a right to abate public nuisances, in general, without the aid or authority of any public pro ceeding. But superior rights may intervene, which may render such acts unlawful.</p> <p>That which may be abated as a nuisance, without judicial proceedings , must he in itself a nuisance, or the inevitable cause of</p> <p>Public-nuisances are of two classes, viz. physical, tangible objects; e. g. a house or fence in a public highway ; and those which, being merely moral, are intangible, e. g. the assembling & misconduct of persons at a disorderly house, the keeping of a tippling house, &c. It is the former that private persons may abate upon their own authority. The latter can only be suppressed by legal proceed - ings.</p> <p>The destruction of a building in which disorderly persons assemble for unlawful purposes, cannot bo justified as the abatement of a nuisance ; nor can an assault upon one who re sists the destruction of his prop, erty, for such a causo, be justified; for it is not the home, but the disorderly conduct permitted in it, that constitutes the nuisance.</p> <p>A plea to an action for an assault Si battery, that pltf. kept a disorderly house —the receptacle of stolen goods &c. and that defendants entered tj,rew down th9 house, as a pub-lie nuisance, and, ;n s0 doing, ne-cessanlyandun-avoidably assual-ted the pltf. and jjeat°bruisedand wounded him— tnh°e ^ tion.</p>

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

<p>Covenant.</p> <p>Fhom: the Circuit Court eor Todd County.</p>

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

<p>TllHSJ'ASS, JiOK, FREEDOM.</p> <p>From the Circuit Court for Shelby County.</p>

<p>Attachment bills, by several creditors against the same debtor and garnishees. The pleadings & facts of the case. Orders and decrees of the Circuit Court.</p> <p>A -party is indebt ed by several notes &c. given to the same person ; several suits in chancery are instituted by different creditors of ■ the latter, to sub. ject those debts .to the payment .of their respective demands; & other persons,assignees of some of the notes, institute suits at law, anti recover judgments upon them, which they are about to enforce:— ■the party thus exppsed to the danger.of being compelled to make repeated payments of the same debt, b.as a proper case for a dill of interpleader.</p> <p>FbiirTnnta--pleader,it seems,should have annexe(j t0 it, an affidavit, that it is not prosecuted by collusion,but,for tl!e comP1j’s security, spontaneously. But the wilinotte' noticed by the caús^of de murrer, or some cepUon™1^ The compl’t in a 4-'seeking anin - • junction against each ofwho^is attempting to co- . h¡mseif'5'Iofltihe same demand, mo°neyintocourv ?r least S\ve for its ultimate fng^^edecree" where there are' divers bills pend-in(r to subject the same debt to the-' g“““g¿it°^.sse& a bill of inter-£arni*hee — •-if8 when any of ‘ heaiTn^the • the others areal-may"bTcoñsolí dated. But, if junction upon tlie bill of interplead er, and there has been gross negligence in preparing it, the court will proceed to' de,cree upo'ft1 the attachment bills, disregarding the bill of interpleader. When a bill is filed to subject a debt due to a deft, to the payment of a debt due by him, the garnishee has no right, after service of process on him, to pay,or satisfy, the debt to his creditor, or any assignee of that creditor, or to merge it in any new contract: to do so is a contempt of the ct. and exposes the garnishee to a decree against him, for the amount, regardless of such previous satisfaction of the debt; especially, when the satisfaction was to one to whom the debt was assigned in order to defeat creditors, & the garnishee was ap prized of that liict.</p> <p>After the filing of an attachment of process thereon, the garnishee .makes a new contract with the principal debtor (his creditor) in which the attached debts are merged. The attaching creditor then amends his bill, and prays that a portion of the new debts — the first due, may he subjected to his demand : held, that he is is entitled to a decree according to the prayer of his bill; and the garnishee to a corresponding credit upon the contract. But, a bill of exchange and two notes having been given by the garnishee, in making the new contract, and the sum first due being absorbed by the attachment, and the note next due havin': been assigned, upon a valuable consideration, to an innocent holder, and that last due to a party who received it With a full knowledge of the pendency of the attachment suit —the residue of the attaching creditor’s demand (not satisfied by the sum first due,) shall be charged upon the sum last due.-~leuving the innocent assignee to take the benefit of the note assigned to him.</p> <p>Where an attach rnent bill hasbeen filed, and the garnishee, after service of process upon him, makes a new contract, with his creditor, whereby the attached debt is merged — the attaching creditor is, nevertheless, entitled to a decree for the payment of his debt, or as much of it as the debt attached will satisfy. It is incumbent upon the garnishee, in such case, so to prepare the suit, as that he may obtain the proper credits.</p> <p>When a bill is filed to subject a debt due to a deft, to the payment of a debt due by him, an assignment of bis obligation , after-wards, pendente lite, will not defeat the attachment, nor give the assignee an equity superior to that of the attaching creditor. Nor will an agree ment between the assignee and attaching creditor, that a portion of the sum which may be re covered by the assignee, in an independent suit, shall be applied in discharge of the attaching creditor’s debt, a-mountto a waiver of his prior equity — especially, when he has reserved the right to “'prosecute his suit till he is paid.</p>

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

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

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

<p>A husband as-wife's claim to a share, as a dis-father^ estate^— The assignee in-chancery, faltthe names of the hus band and wife, against her father’s ex’or, and obtains a decree for a sum of money ; which the ex’r pays to the husband, altho’ he is advised of the assignment, and the husband is insolvent : — held, that the as-signee can maintain no action against the ex’or for thus paying the money, regardless of the assignment. It was not only the privilege, but the duty of the ex’or' to pay the money according to the decree; and; if he could have been justified in paying to the as-signee, he had a right to elect whe ther he would .pay to him, or to the husband and wife.</p> <p>The assignment passed only an equity,subject to the wife’s paramount right to a settlement; and no suit could have been maintained upon the claim,against the ex’r, without ma king the wife a party; and, in equity, neither the husband nor his assignee, had the assignee been a party,would have been permitted to obtain possession of the fund until the wife was provided for; and the fund being small, & the husband insolv’t —the whole of it would have been appropriated and secured for her support.</p> <p>Had the husband died before the decree was complied with by the ex’or, the wife living, the right would have survived to her.</p>

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

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

<p>The action,pleadings and judg’i. ^rsints(Je pleas, must be those that are bad; but, if there must-be8"" ’far overruled ; and upon his good plea or pleas, defendant must have judgment, unless the pltf. tenders a sufficient replication, or there is something else to prevent it.</p> <p>The action by monTis com men cedby filing the note with the petition, and not .otherwise; and af the summons issues before the note is filed, deft. may plead that fact in abatem’t, and defeat the ac -tion. JudgeEw-mg, dissenting, thinks such aplea insufficient; es-'doesnotaTeiuhat thenote has not thiTplea6.Í3Wpre-,-sented.</p> <p>A plea that purports to answer a part of the action only — confessing the residue , is good ; plaintiff should not demur, but take judg’t for the part unanswered, and reply to the plea as to the rest.— But if the plea is not good for what it purports to answer, a demurrer must be sustained. Partial payme at or before t day, or full pa ment after t! day,may be pie of payment, th ded; but partial payment, after the day, is a defence not available by plea it may be pleaded ns an accord and satisfaction pro tanto, or as a set-off, The ancient notion that a pltf. by filing one demurrer to pleas in abatement and subsequent pleas, discontinued his action,is not law here: the pleas should be severally sustained or overruled, according to their merits.</p>

<p>Plene adminis-pierL^debffor a devastavit — i,^ 6720te' Debt for a de-ITemtkminiZ travit; replica-thTpiea.índTs8 sue thereon: UP-enquiry on this issue, the enquiry is, (1.) has the ex’or, or adm’r, legally ad ministered all the gainst the deft., must respond spe cifically to the 2d as well assets he has received? if not, (2.) what am’t has he wasted ? The verdict, if a-as the 1st — show ing the amount of assets wasted. (fof the pltf the debt &c.) is not responsive to the issue; and judgment may be arrested.-A waste of assets does not subject the executor or administrator who wasted them, to a judgment for more than the amount ascertained to have been misapplied.</p> <p>Ex’rs are bound to take proper eareofall money and assets of the estate that come to their possession , or over which they exercise any control. An ex’or may be held accountable for money or assets which he has rec’d, tho’ ho intended to re ceive them, not as ex'or, but as agent for a co-ex’or ; and he will not be exonerated from liability, by having passed them over to a co-executor who' has wasted them.— Yet, one ex’or may act as agent for another, as by being clerk of a sale of the tes • tator’s goods; & may even take notes payable to himself and ano • ther as co-ex’rs, without incurring any liability as an ex’or — provided, he has never had an actual pos session or control of any of the assets.</p> <p>-UVoies’taken by an ex’or, upon a sale of property ■of the decedent, • are not assets ; & the mere fact that they were taken by one executor,who passed them over to another, does not make the former liable.</p> <p>Nor will the fact that the notes were made payable to both of ’•two ex’rs, make ■one accountable who did not receive the proceeds — though it may strongly con duce to prove that he acted as ex’or in setting the assets for which the notes were taken; and, if he did so act, he will be ac. countable. Whether he did so act, or not, is a question for a j“7-</p> <p>Where an exec-otor makes pur-o/the testator's he is.lia-for the amount, debtPf his 0wn, of as high dignity as that of the creditor who claims it. if he Paysforthegoods ■ takes them in ofS own^f inferior dignity, he is answerable-</p> <p>Whether one ex’r bl'e.fo'rT'devas-tavit^ committed not, depends’ up-011 facts '7lu?h must be submitted to a jury — as • “ecutoriai^au1, thority over the-hisetaidW^Stthdr acquisition, or disposal &c.</p> <p>Two ex’rs — one other'asTuretyt. replied an ,execution against them, as ex’ors; and the former gave up a slave of the estate, to be sold under an execution upon the replevin bond, though there was an elder judgment outstanding: he had a right to pay the replevin bond; and if, in so doing, he had committed a devastavit, that would not make his co-executor, who had never had possession of the slave,, nor any agency in subjecting him to the junior judgment, liable.</p> <p>A testator had signed an obscure writing,in which he acknowledg’d the receipt of a certain sum,from a “ concern” in which he was agent, and one of his ex’ors a principal partner; but whether, or in what mode, the testator was accountable for that sum, did not appear : held, that the writing was notsuch evidence of a debt due from the testator to the ex’or, as would justify a retainer.</p>

<p>Trespass. Assault <5. Battery</p> <p>From the Circuit Court for Knox County.</p>

<p>A tract of land, sold under ex’on, was described as containing 235 sieves, and was val ued, for redemption, at $2 per acre; and it sold for more than two thirds of what that quantity would am’t to, at that rate. But it was after-wards ascertained , that there were 257 acres in the tract, and the gross sum for which it was sold was not § of what the 257 acres amounted to, at the valuation of $2 per acre. The deft, in the ex’on offered to redeem, and, in pursuance of the statute,tendered the amount bid, and ten per cent, in addition, and, it being refused , paid it into the clerk’s office:— held, upon a bill to enforce the redemption , that the land was sub ject to redemption.</p> <p>The omission in the decree for a reconveyance, of any order for the disposition of the money in the clerk’s hands, is not material; the purchaser might have taken, and may still take, it at any time.</p>

<p>Where an adm’r has a portion of the decedent’s es tate in his hands, on which there is no claim but , that of the dis-tributees — who have a bill pending for distribution; but the estate is not finally settled, and the amount to be ultimately distribu ted will depend upon the result of a pending suit, or is otherwise uncertain — it i» proper to render a decree for present distribution of the fund in the administrator’s hands, and retain the suit for such farther decree or decrees as may be necessary.</p> <p>Where estates are connected — ■ as where one of “the decedents was a distributee of another — and the same person is adm’r of both, distributees entitled to a portion of each of the es-tutes, may unite both claims in the same bill, against the adm’r.</p> <p>An adm’r may avail himself of any funds in his hands to which a distributee, (or the representative of a deceased dis tributee,) is entitled, to satisfy, by retainer or set off, any debt due from such distrib utee to him, either individually °f Another °el tate-</p> <p>•&., who is an adm’r, has a demand in his own right, against a deceased distrib-utee; before there was any administration on the distributee’s estate, A. had obtained a decree against his heirs: they are necessary parties to a suit, for distribution, brought by the subsequently appointed adm’r of the distributee, and in which A. being a party, asserts his right of set-off. But, though the heirs have not been made parties, the cross bill for set-off should not be dismissed, for that cause, at the hearing of one branch of the case, when there is a part retained in which they might properly be made parties.</p> <p>Children born after their father’s will was made, and pretermitted, •take the same shares oUaiS'ési tate that they would have taken had there-, been no will.</p> <p>A party executes* a deed by which he confirms a eon veyance of his lands made, daring his minority, by his trustee, & by which he also acknowledges the receipt of §795, and conveys all his personalty : the new consideration (the 795 dollars) will uphold the deed, though it would otherwise be sub. ject to strong objections; and the personalty being thereby conveyed, the §795 can not be deemed a payment on account of their land-</p> <p>Sale of an undivided fourth of a tract of land at ¡¡¡¡40 per acre, on credit, how long does not appear, but not payable till the purchaser got possession ; upon a division of the tract, less than a fourth was allotted to him; but, (upon the presumption that the deficiency in the quantity was made up in quality) he is held liable for theam’t of a full fourth at the stipulated rate; and, in the absence of the notes forthe price (if any,) for interest from the time when he got possession.</p> <p>Sale of a minor’s land, for a sum, of which $1000 was due when he died; and no allegation of its payment, except that the purchaser, and his ex’r, had contributed to the support of the minor: — the support considered equivalent to the interest on the $1000, leav-the principal due. The brother of' an infant, being his trustee with authority to sell his lands, s.old them on credit for a large sum. The infant, after he came of age, confirmed the Sale, and soon after died — most of the purchase money remaining unpaid. His bro ther, the trustee, was appointed his adm’r. Soon after the death of the infant, one of his distributees died, and there was no adm’r of his estate for ma ny years, and his heirs were infants. Finally, the purchaser of the land died, & the brother of the infant who had his land, & was his adm’r, became also ex’or ofthepuichasei. —After all this, an(j some ejgi,. teen years after the sale of the land, an administrator ol* the said distributee was qualified; who forthwith filed a bill for an account and distribution, and. to recover his intestate’s share of the proceeds of the land:—</p> <p>Held, that the deft, who was sued in his own light, and as adm’r of his brother, whose ].and he had sold, and as executor of (his uncle) the purchaser, cannot avail himself of the length of time as a defence to the suit.</p> <p>Five years (or twelve) will not bar the bill of a distributee against an administrator, for an account and distribution.</p> <p>If no notes or bonds were taken for the consideration, upon the sale of the land, and the vendor’s adm’r permitted the demand to be barred by time, he is personally responsible for it.</p> <p>Under the circumstances of the case — the terms of sale recited in the deed, it is presumed* that bonds or notes were taken, which ought to have been preserved by the trustee who made.the sale, and was afterwards adm’r of his principal, and no time should bar a suit against him, which would not preclude a recovery upon those notes or bonds.</p> <p>The defendant is liable for interest on the consideration for the land — whether it be decreed against him in his own right, or as adm’r of his brother, or as ex’or of his uncle, the purchaser; and a decree may properly be rendered against him in the latter character.</p> <p>Bill by the adm'r of a distributee, to recover' his share of the proceeds of the sale of an interest in a tract of land. The deceased dis tributee had formerly had posses sion ofthewhole tract, which he held forlOyears, ending 12 years before this bill was filed ; and the deft, attempts to set up a claim for rents, during that lO.years, as a set-off against the claim for distribution. But it appeárs that in a certain suit for partition, which had been instituted and determined, the claim of the distributee to the whole tract now in question, had been disallowed, and the partition decreed, and that there was, in fact, a claim for rents and profits made in that suit. Held, that the present claim of set-off cannot be allowed: it is unconnected with this suit; was a mere legal right — the remedy probably by-action of trespass, long barred by the statute; and the claim, independent of the statute, may be presumed from the lapse of twelve years, and the acquiescence of all interested, to have been abandoned.</p> <p>A party pnrohas-interest in a tract ofLnd, two undivided portions of which he had theotherfromhis ^ardT'undefan ex’on on ajudg-™ndorSaashSeirof his mother, his land6 was” soldi and purchased by ser, and whotiad the control, and was probably the owner, of the ex> fcul‘on; 1-^h, land descended from the father was not liable to sale for the mother’s debt 2. The purchaser of the land had also purchased of the heir, his right to a portion of his mother’s personal estate, and had received a large sum from that source, which was first liable for her debts, and the purchaser had no right to retain that, and let the land be sold. — The execution purchase, therefore, cannot be used to rebut the claim to a distribu-tee’s share of the purchase money due for the land upon his first purchase_The purchaser having made the second purchase, (at the ex’on sale,) to strengthen his prior title — thereby extinguished so much of the debt, and for which the estate of the deft, in the ex’on is no further liable.</p> <p>A party purchased land,on which there had been a levy, creating a ■'lien, of which he '•had a knowledge • at the time of his ■.purchase. Many years afterwards he purchased the same land, when .it was sold under a venditioni ex-ponas upon the formerlevy: held that he must be presumed to have purchased, in the 'first instance,sub ject to the lien, and cannot be permitted to set it up, to reduce the price of his first purchase. •</p> <p>A. who was one-! s0lT&Pconveyed his interest in the land to B. An-terwards, upon a l?]11/0/ Petition one of the parce- and his vendee being denied or fánd wídivided-into five parts, decreedj&Cmade by #c- confirming titles, in-dudingthewhole tract, to the owners of the interests of thecae parceners. In the present suit (instituted after A. andB. were both dead,) the liability of B. to pay for his purchase from A., of which he seems to have-been thus ousted, is made a question. But it appears that.'B. had acquired title to the residue of the land, and the possession of the whole; but had never made-any purchase that included the interest of A. but that made from him — which interest should be restored to A.’s heirs, if B.’s estate is-relieved-from the payment of the purchase money, as a rescission of the contract is a necessary consequence of exempting B.’s estate from the payment. ButB. seems never to have considered himself as divested of that interest, but he and those holding, under him, have retained both title and possession; and the court think that, as the case now stands, B.’s estate should pay the purchase money to A.’s adm’r, with interest upon it.— But as B., in obedience to the decree of partition, executed a release, by virtue of which the heirs of A. may have become invested with some title to the land, which they should release to the present holders of B.’s title, before his estate should be subjected to the payment, those heirs are necessary parties to this- controversy.</p>

<p>CoveNant.</p> <p>F:rom the Circuit Court for Daviess County.</p>

<p>The Civ. Courts are authorized , by statute, to order a sale of real estate descended to infants, for their benefit, upon applications of their guardians: to the validity of the statute — when applied to estates descended since its passage, there can be no good objection.</p> <p>The jurisdiction being special and limited, the statute must be strictly complied with; and unless every fact prescribed by it appears in the record, a decree for a sale under it will he prima facie erroneous. Hence, as the statute only applies to land descended — the pe tition being silent as to the mode in which the title was derived, it was held that it did not sufficiently appear that the Ct. had jurisdiction, and a decree for a sale was reversed.</p> <p>The record of such an exparte proceedingsho’d not be deemed as conclusive, in all respects, as it would be if the infant had been a party; and if a decree for a sale were obtained on a false suggestion , made 'to give jurisdiction, it would seem that the infant would not be concluded by the decree; but might show the falsity ofthe suggestion, tile want of juris diction, and consequent invalidity of the sale,by proof aliunde.</p> <p>The record, in such a case, is conclusive evidence of all the facts appearing upon its face: so where it shows that the land came to the infant otherwise than by descent, it shows conclusively, that the sale was void for want of authority in the court and guardian, to decree and make the sale. But it is not evidence that a fact did not exist concerning which it is silent; and any such fact-to show that a sale was valid, or void, may be proved by extraneous evidence. So, where a sale was decreed upon a guardian’s petition , which did not state hpw his ward had derived title to the land, and the sale was made; and afterwards, at the instance of the ward, the decree was reversed, because the record, silent as to the derivation of title, did not show satisfactorily that the court had jurisdiction ; and the ward then bro’t this ejectment for the land —it is held, that it is competent for the purchaser to show, by proof independent of the record, that the infant’s title was derived by descent; that the court which decreed the salewas not, in fact, with out jurisdiction, and its decree, and the sale under it, not void.</p> <p>The decree or order of sale, in such a case, being— not absolutely void, but only irregular & erroneous, its reversal, after a sale, does not affect the purchaser’s title.</p> <p>The proceedings for sales of infants’ estates, un dertheact of’13, ar o judicial.</p>

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

<p>The act of 1797, • directing a mode ■ in which a divi- • sion of lands a-mpng co-tenants ■may be obtain’d, must be strictly pursued; and the record mustshow that its several requisitions have been complied with, to give validity to a proceeding under it.</p> <p>A cestui que use may resort to a court of eq. to ■ complain of com bination,fraud or neglect of duty on the part of the trustee.</p> <p>Gift by a father, to a trustee for his daughter, of 50 acres of land, ‘to be laid off on either side, corner or end, of a tract of200acres, so as to include theimprovem’t.’ The husband of the donee laid off 60 acres of the best of the land, in a shape nearly square, inolud ing nearly, but not quite, all the improvement, & leaving the residue of the tract in an awkward, and inconvenient shape. Thisdivi sion was known to the trustee, who made no objection at the time. 5 years afterwards , the donor sold the • rest of the tract, without describing the reservation; but he did not object to his son-in law’s division ; of which the purchaserwas also aware; but he, nevertheless, procured a new division to be made, by a proceeding in the county court— Whereupon, the husband, with his wife the cestui que use, tiled their bill to resist thenew division, and establish the old one: held, that,under the cir cumstancés, the division made by the husband shall be protected. In this case, the husband and wife made her trustee a co-complainant with them; but he disclaimed, and took side with the defendant; and, thereupon, the court permitted the complainants to amend, and strike out his name as a complainant, and make him a defendant: and that order is approved in this court.</p> <p>The trustee, in his answer, intimated his willingness that another should be appointed in his place, if the cestui que use desired it; which was done by the court: as it does not appear that she was dissatisfied with that proceeding, it is here sanctioned.</p> <p>The trustee resisted the prayer of the compl’ts’ bill, and the establishment of the husband’s division of the land, which was for the interest of the cestui que use', he is therefore Hablo for costs.</p>

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

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