Volume 4 — Kentucky Reports

<p>Want of notice f lhe f,,t" / of crfaC|ln(,under the occupying clamant law,. good exception ¡n th¡, tubrt> where u c party WiS rin' P,elen£ ⅛repon to the ce rt t elow, & thecomir.iOk-o. Cl s pro.eeued (» farle.</p> <p>vv»nr ot fpeci-ficat,on ,he « ms oi valua-,¡on</p> <p>wantofexpla-nitl°? oi the wh,ch they as. ceruined imProven“nts t>«/i hatthe quan. tiryofiaiw, a« wdla*itérala* per acre, is not afcertained; aie good exceptions If .the lecoid ihewed that the party had an opportunity to make the ob jeccions~in i he court below but did mt, they Wguld not be regarded in the court nbove.</p> <p>£Jiill •vi. mi. kite> *--»ar■ 5?,9. Patrick ux. ms lure— fall i8o8.</p> <p>Jo :»f >1 -V!., jD^uejiaU iiorj</p>

<p>Anfwer that the entry called nolaUdTcom* plainant failing to produce a the entry 'mu’ft be taken accur. ding to the an-</p> <p>• . iaiyhur ifring, emptying into the nnnh fcrk c> Licking creek. ⅛" ”reekd d'ñd its benches tor — ‘he the^iptmg branch) is the ftream which is fu,vey^uponthis entry,</p> <p>Aftreamdoe» 0VthatFfise that in the common und«a»ndingof ¡¿'"e The Ip eU larion ofcreek.</p> <p>ln‘he abience poor, curt m,t pre_ fume that the £“1Ph“r fPnnS at acral™ °</p> <p>AaWi/whe-”,jt°ru<y of „f éntr.'Vsput in ¡flue -alcho' the proper c->n-entry^ór figure of furvey, is ⅛</p> <p>prefll-j asco the validity of the</p>

<p>A locatorcaV Png to join the claim if H. on the «eft— Fi, h*s ’wo claims, an entry, whi.h ca'h to adjoin the ether dam, a military Air-vev</p> <p>It flu!l not be Intended that he meant to inter, fere with either, and therefore the one intend, ed is made cer» tain*</p> <p>An entry tffl join a military i“rve>> aliho” oUkein Finca*, tle count7> *⅝</p> <p>miftakeor defect in on* Pa'c °f the dibe correeted”^ another part of the</p> <p>_ Machi, — Black — speeT^vs. W'ljm, p. dei, 9a — vs. Har.nj — jiesl pass vs. Arnold, i^at ”3 —%- Har 8s_ccud man vs Thomas, f1",r-*75-Mark. ¡⅛. 374,</p> <p>Notoriety of nillht3r!' <vvey i^^pnfvtd — '0*r that it could |>ave found ¡0^⅛^⅛"*1>⅛</p> <p>An object, (narned ⅛ ao ⅛⅛ could not excite s.eneral. atten. rnua01^be^wfil dafo-ibed, *o “ eoul<1 ⅜ or ir.uii lie fupported by jioficive proof of notoriety.</p> <p>But where the object muft have attracted general obfer-Vation —watercourse cr ita • ti< n, or excited general tvterefi or curiofity — fait lick, mine-pi Spring, old turvey,thenac* Curacy of de-ferí p ion & positive proof of notoriety ipay he difpe^ied with, and cir-«uríiftantial evi. dence be held fufficienr.</p> <p>And in Some cafes prefnmp Bion alone, aii-íing from general knowledge & general cun* hderaci >ns. M&díeyvs. Craig Har. 98. mijor. vs. M'-Ghu, poli.</p>

<p>fifttwn to file enh-y, furvey & patent, which were before the in-erior court, and n >t certified In the record, overriih'd*</p> <p>The party who has filed hi⅛ exhibits,')ughtnut |o lofe his right by the neglect dr negligence, or other atcU dents in the cU sk’s office.</p> <p>if precedents furnilh no remedy, the court mull deviie one.</p> <p>The application ihculd hs made to the court who tried ti;e Chulé $ if they were Tatis-tied ’.he exhib-ís were before them on -hr trial, they tb uld perm t them to be filed</p> <p>1 o ne brought up to thii court by certiorari.</p> <p>buch an ex*» erci.ew power ought to becau-tiouíly ufen.</p> <p>None but matte's cf public record, ought to be admitted to the file, on fuch an appii-</p> <p>JSott —On application to the general court, leave was given to file the papers, a bill of exceptions taken, and the act of the general court approved by this court-lee the cafe decided, Oct. J2f 1809*</p>

<p>A miftake in calling tor the ficond inftead of the fit ft right hand furk corrected by the notoriety of the improvement called tor.</p> <p>Same principle, Evans* s heirs vs. Man-fin’s Ex'rs. Ocr. 15th, 7808,and cafes therein cited.</p> <p>Location of-q-oo acres to include animprovement furveyed in a fquare to the cardinal points, the improvement at the in-terfectionof the diagonals.</p> <p>ioco joining on the weft, and extending weft for quantity, to be iurveyed in a fquare. — See McGhee vs ^bom^fittf Mo¡~. by &? Craig VS* Carland.</p> <p>A location to adjoin a fettlement and preemption before the pre empticn was located^ ihall be adjoined to the iettlement only</p> <p>Same principle, Crew's bars •vs fcurred's heir, Hu. 435 • — Wilhums •vs,</p> <p>'Taylor-- ' ilfon vs. M'Ghu — . Wara ar.A Ken-tor, vs L-.e, as-ftgmt cj Yorng— Kenny vs-Whit-leage, Hughes j 10-134 ->■ ■ » Swearingen vs. Smith) fpring 1809 — M'Ghee vs. Thompson» fall 1809*</p> <p>A location to join another on the fourh, and extending fouth to include lome improvements made by S. B* —not fupport* ed, becauie the improvements were not ¿hewn*</p> <p>Same princi* $\t ¡Williams vs Toy lor ¡ poft, Smith vs. Farley, poft, M'Clure vs0 Winhck, poft, Hcglatid vs* Shepherd, poft, M'Gbee vs* Thonipjoti) poft, Hendricks vsé Bellf poft, Cox vs. Smith» iHar.411 — WiU fon <vs. M'Gbee *~~tVard and Kenton an. Lee, újjignet Young locale víGíu. bway, Decern. 2S09,</p> <p>Craig having a. greed with Ken. nedy to convey »50 acres to Machir in case he lucceedej a-gainft the entry under which Machir claimed — Craig ,n lifts he was not bound to convey to Machir, becaufe of an equity he, C. had againft Kennedy. By the court — if he had an eqau ty a gain ft Ken fiedy he ihoird have made him & party by a crof's bill, or by his anfwer in nature of a cro¡s bill -itwasfuf. ficient for Ma-ehir to maka Craig a party, who w¿$ trufl-.a for him, vv;th-out the pet ion who created the truft to his ufe.</p>

<p>An entry, on the n;oft eaji-•,tuardly branch of Lawrence’s creek, about two and a half miles trom the mouth of Lime-ftone, toinclude a fmall fpring, invalid $ be-caufe the fpring aíTumed was not notorious at the date of the en» try — and If it had been, the entry gives no characterise to diftinguish that fpring from the others in the neighborhood--Acc. Craig •vty Baker, Har. p* iZl — Hogland •vs. Shepherdy poft, Couchtnan •vs* ThcmaSy Har. p. 278 — Speed w* JVilJony pr. dec. P» 91*</p>

<p>_ V/here an ierferes With nñ private right then existing, catethcrentr/fe" not on its /ace contain a cafe the .■tion, but is ex-preffed in fuch generai terms as with the Jaw, the common-cluded — andTu iubfequent ciai. mants from rhe íikTwif"Wconh eluded.</p> <p>But where a righufaftlct ed, andtheper-ibn affected was defenTteright* ⅜; is not c»n’ eluded.— Nicb~ els 'vs. TVelhy pr„ dec. 30Ó,</p> <p>Where a preexisting right is affected, the effect of the certificate will be» to permit the party claiming* under it to iu>~ ply, by proof» that, wiies ein the certificate* by reafon of its generality, is defective — the adverfary being permitted to rebut that- proof*</p> <p>The county courts had no authority to un-brace the application of thfc grantee of a cer-’ tificate of preemption, to amend his location at a term fubfequent to the grant of the certificate;</p> <p>The commis-fioners might permit an amendment at any time during their fitting.</p> <p>Perjuajion ufed by a perlón to prevent an in» terference with his claim by a«. nother, is no ground for a bill in equity,</p> <p>A location of a pre-emption infufficient, be» caufe the im« provsment £⅛ led for was not notorious, and the defcription thereof imperfect and deceptive.</p> <p>Couchman and Thomas, cited and recognized by the court as correct,</p> <p>Defcription of improvement does not aiiude toWells’s creek although that Hream was well known by that</p> <p>To preferve the dignity of pre emption, the location in the certificate muft be ipecial and defcriptive, it is not luifi-cient that the entry with the furveyor is fo.</p> <p>JVt Cunaban vs Berry, Hug J77 —Bryant and Oioings vs.PVal lace, Hog zog-jo -Myers vs Speed, Hug.99Joo.</p> <p>Claim invalid as a pre-emp tion, yet^good as a treaiury warrant, on account of theno-toriety of the improvement before the entry with the furveyor — not-' withftanaing the office was ihut for ifiuing treafury warrants before county court granted certifi-care oí preemption jVj-chols “vs. TVeils, p.r. dec, 307-^1 Greenup vs. Kenton, Har.15.</p> <p>An entry to adjoin a juiveyt made but a ihort time before, I’o that no copy of it could be obtained, cannot be helped bythe defcripiion contained in the certificate of lurvey. — Vide Nenie vs Galloway, poft,</p> <p>That all fur-veys are conformable to entry, would be a rafh. prefump-</p> <p>An entry, to operate as notice to fubfe-quent locators, mull contain a certain direction, by reference to fome certain object of notoriety, from which a fearch could be commenced ¿⅛ purfued to the beginning — Coucbman ysa Har_ 271 — Crow’s hfff^ Mafin,Har.73.</p> <p>,rilf cfu/or the bead of a ^ where common reputation has not fixed it, is (in general) 'vague and uncertain. It may be an object of pie-cife location, where nature or reputation has éíilinguished it as iuch,— Bryan 'us. Btad-fordi Hug, 61 • — 4Taylor vs. Kincaid, Hnc.Sz</p> <p>To meander and delineate many branches of a ftceam to afeertain the head, would be an unreasonable diligence toirn-pefe upon a iub-sequent locator. '"~Pfbit&ker vi. Hailj poft,</p> <p>An entry to include the mouth of a creek well known, and to join C, on the v/eft and B. on the Couth, not Supported for want of evidence to give pveciCe locality to the claims of C* and B.</p> <p>; A call for fet-tlement and pre emption, when the preemption was not ¡neared,fhallbe conftrued tc> adjoin the iettlement only. — * See Craig vs. Macb¡rf d.úte 3 0</p> <p>Note. — Same principle^ Cleland's heirs vs. Gray, dev'tfee of Weeden, OcU 1808 — Neale vs. Galloway, fall term i8oy^Feyton vs, Geedlet — Key vs* Mat jan, Har* 75.</p>

<p>(On county «ourt pre-emption.)</p> <p>The location in the certificate of a pre-emp-fcioner calling for his improvement, when that improvement was tmperm fectly and falla ~ doujly deferibed, and had not acquired notoriety, declared invalid.</p> <p>It is not fuffi-clent to preserve the dignity of pre-emption that the locution with the fur*veyor was fpecial and descriptive, thelo. cation inthecer. tificate ihould jhave been fo.</p> <p>Same principle, TVard and Kenton vs. Lee* on Young* szoxxn ty court preemption.</p> <p>The entry with the furveyor in fueb cafe, is on a level with a treafury warrant.</p> <p>Land previousb granted, *afte,<orunap-propriatcd, and therefore not li-tered^for *by fuch a wartant.</p>

<p>tkment^n^ft be prefumeTto have beennoco-</p> <p>evi dencethatthere rns a ftationat 'fov/'sofHick man and Henry might be pre-beerf^ well known.</p> <p>Affirmative dence'ma ^bí countervailed 6 by negative tes.</p> <p>^ facts, which may be proved by hearfay or reputation, ne-* gative testimony, entitled to the fame weight 2S tiie inirmii* tive, whme the wimeffes liad equal oppurtumties or informa-ti„n</p> <p>More efpecially where general character is' in queftion, and notoriety is a fpe-cies of general character or reputation.</p> <p>Same principle, Williams vs Taylor-M’-Clure vs. Byne.</p> <p>A location “at a fpting called M’MiUin,sJ”& ⅜< to join David M’Ghee’s land o» the «aft fid«> &c.” the notoriety of the fpring claimed as M’Millin's being difprov-ed, the entry is invalid.</p> <p>Same principle, Speed vst Wilfon, pr, dec. 9 5 —Cox vs. Smith — Craig vs. Machir— W’ard'SS Kenton vs. Lee, ajfgn-ee of Young — * fVilUatns vs. Taylor,fall term 18 o 8 - - NT' Clu re vs IVinlock, fpring term 1809 — Hogland vs. Shepherd9 Smith vs. Farley , Neale, &c+ vs. Galloway, fall term 1809 —Hendricks vs. Bell, spring term 1814,</p>

<p>-⅛, entry held invalid for want °[ evldencs of the exijtenceand notoriety of *fur. vey which was to be adjoined.</p> <p>A doubtful e-^uity not to be aided by implication.</p> <p>Cox vs. Smith cited, and vide Aféale vs. GaU hvay, Dec.Sth, 3809, and cafes there cited.</p> <p>When witnef-fes fay a furvey was notorious in the fummer, the court will not prefume it was fo in J une, when Augaft will comport with the ftate-snent of the wit. aefs.</p>

<p>A furvey made Qnlyjixteen days before it called to be adjoined by an entry 5 this fhott lapse of time raises a ftrong prefumption againft the notoriety of the furvey at the date of the adjoining entry.</p> <p>A furvey actually made without evidence of its notoriety, internal or external, cannot fupport a dependant eii-try.</p> <p>Description con* tained in a certificate of survey, cannot aid a dependant entry made before cop;es of that survey, were by j** permitted °Same1Vprind-pies, Key Hard^ « Reno, Har. 89 ~festass ani m¡¿ Hard Ila —ff'ard&Ke-n-un v¡‘ *■“»csGalloway, Dec.</p> <p>{„ continuances not to be so ex-,cr“U“*-⅛ rehearing"* grounded on sugseft‘°n»fdi. muiution of record — but nei. therto be favored’</p>

<p>Ejectment •</p> <p>Exceptions to the inftructions of the court delivered to the jury as to the modeoffupply-ing two loft lines.</p> <p>Neither patent nor furvey, under which les-for of plaintiff claimed, made part of the bill of exceptions, or otherwife introduced into the record, fo that the court can judicially notice them*</p> <p>The court therefore cannot fay the in* ftructions were erroneous.</p> <p>The record not exhibiting any error, judgment affirmed*</p> <p>In ejectment, court cannot take notice judicially of a patent or copy of furvey filed, unlefs made part of ceptions, or otherwife intt educed as properly belongingto the record* the bill of ex-</p>

<p>A claim for actual fettle-men t at Shaw-nszfpnngs j th» claim is granted (after con-teft) to include his improvement ? entry with furveyor to include the Shawnee [firing’, the one was improved aty the other not, this ihall determine which of the two was intended, becaufe fettier is bound to include his Improvement-See Conjiila vs. Briscoe, Hugh. 43-5 — M'Mil. Ian vs. Miller, Har, 495 — M' Ghee vs. Thump jon — ~Mosby and Craig vs. Car - land-~Jajfier vs Quarles, Hard. 468.</p> <p>⅝ Certificate and entry of actual fettler ihall be taken together. —Consilla vs, Brifcoty Hughi 45 — Craig and Mosby *us« Co-gar, Har, 385, —Mojby and Craig vs. Car-land, May 3d, 1809.</p> <p>Entry to adjoin fettlement and preemption be. fore the preemption was located, fhall attach to fettlement only.— See Craig vs, Machiry ante 10</p> <p>A villager snuft prove the notoriety of ¡m-provement called tor in his location — Ho-thaway versus Forbes, poji McClure versus IViniock, pofe Fraz ier vs. Steele Pr. Oec. 395-— Lee 'os. IVallf Har. 450.</p> <p>That the wit-nefs underfeed an improvement to be the improvementof P. C. not juffi. cient evidence ofnotoriety,nor that he always confedcredit fo ; it ought to be generally fo un. derftood and called by others acquainted in that part of the country.</p> <p>Pofetive evidence of notoriety counteracted by other evidence. • Mf Clure vs. Byne9 pefe mu Jon vs, M'Gbet9 ante 34' — Speed vs% fViljon3i Pr* Dec, 93.</p> <p>Entry by P. C.to join Hugh M’Gary on the weft, and include his improvement, not fuftained for want of improvement.</p> <p>Same principle, Neale vs, Galloway, fall term zSro, and cafes there cited.</p>

<p>An entry to adjoin certain perfons by name, is tantamount to adjoin their lands*</p> <p>Lands granted, and not the entries, are to be Adjoined in fuch cafes.</p> <p>So also of Jut-•,veys made and recorded fo long as that copies could be given out.</p> <p>Surveys ihall be intended to be adjoined, where they iland in equal sense and dr-cumftance, and especially if the surveys are notorious, and the entries obfcure.</p> <p>The order in which furveys are named, may aid to distinguish which of two of the fame name was intended,</p> <p>400 acres preemption, to include a cabin, to be furveyed in square to the cardinal points, cabin in the middle: 200 acres joining thereto on S. W. and running S, W, for quantity, hovr to be surveyed, as in Crow’s heirs vs, Har„ rod's heir, Har. 435-</p> <p>How an entry <( lying between and adjoining Mof-fett, M’Crack-in, Briscoe, Craig, and Es-till, on Glenn’s creek — ” to be furveyed.</p> <p>Craig had'two claims — one on a fpecial Valid entry, but not surveyed — the other surveyed-only about two months before the entry in queftion,not notorious and the entry obscure, the valid entry of Craig was taken, as well on account of the want of notoriety of the survey, the obscurity of the entry and posi“ tion of the ci-ther claim.</p> <p>Where objects, notorious and corresponding with the expressions in an entry, are exhibited $ the entry not deftroy-cd, by objects with corresponding names, but obscure and not as well adapted. Same principle Moiby & Craig vs. Car land, f>oft Whi. taker vs. Hall, fofi</p> <p>Where the survey directed by court of appeals is variant from that di rected by court below, but includes all the land in controversy, the decree affirmed,</p>

<p>An exception to the principles of Cox vs. Craig vs. Ma~ chir, IVaxd and Kenton vs. bee, aJJignetofYwg, 4f(.</p> <p>The near approach of, and fmall chafmbe. tween other fur. veys called for, renders the ab« fenceof Craig’s claim harmiefs. How to furrey the entry in this abfence of that-</p>

<p>An agreed line eftabii&ed. touT*'hem the country and in ftrtctness was^notentided ought to bé bound by the a-frienTwh °made theimpmvement, obtained the certificate and managed the claim. — ~Videt Hinton vs. Stewart, Hugh. ¿¡.- — Madijon vs. James, Hugh, i — » Egan vs. Iiincb, &c. Hugh. 4S-9 — Dryden vs. M'Gee Hugh* ‘$j-%* — PPdrdvs, Kenton, Pr.Dec* JLO — Brown vst Crow's heirs, Hugh*</p>

<p> 0‘Ca^maít C¡m~ </p> <p>If the party was present in turiTof1 the re” port of com-raissioners and made no objec-port, he ihaii be considered ved^objections which he might matie-hJUe¡ s,j¡ v¡ Cm!*, tall term Johnson term lSo^</p> <p>When ⅜ fendanc applied to have com** missioners appointed to value the improvements, the plaintiff was prefent, and might have objected to the title offered by the defendant to support his motion — and if his objec ión was overruled, might have excepted j not having done so, the legal preemption is that a proper title was produced — and that the circuit court acted correctly.</p>

<p>An entry ex-PysiTirls to be-“running down the lame or,e northwardly for quantity, tn be Orvey-¿ow^the creek one mile, when t0. a at ,⅛⅛’ angles to the |e-line andonthe northwardly ildei °jlalthe t0 t'£* general aurft W|U 8lve the</p> <p>is not definite, n°rJynommous SamTpiind-pie, Calk ar.d</p> <p>Orear vs. St rib-lingy fall term 1809 — Bradford vs. M'Clel. landy Hug. 102 Smith verfus Grimes% Hugh* a8.</p> <p>Where an entry gives a bafe, and then to run from that bafe northwardly, Southwardly, ScCé thefe calls fhall be considered as general defcription cf the fide on which the land i8 to lie, and the survey {hall be rectangular.</p>

<p>Location(t on the road from Riddle’sSta'ion to the Blue Licks, at the second improvement, about three miles fiom Riddle’s.”</p> <p>General repu. tation, if explicitly proven, although not in firict conformity with exiting fails, (hall govern a loca-Whitaker vs% Hally pojl</p> <p>Jackson vs. Johnson's heirs foil Bryan & Smith vs. Bradford ¡S’ alst Hugh. 55,</p> <p>Three improvements on the road, easily found, being clearly efta-bli&edj the «- cond is taken to govern this entry, notwith* {landing two witnesses depo-ied that the third was kneivn as the second¶ they not know— ing of but two«</p> <p>That it was known as the second does not necessarily imply that k was generally known and reputed as such — See accord. Williams vs* Taylor) ante 41* Same principle Wilson k/s, M'~ Gee, ante 34— Speed %is. WiU ¡on, Pr* Dec. 93’</p>

<p>A claim defective and erroneous in its origin, carried into grant, cannot be impugned by a complainant in chan eery but upon a valid entry.— Ward & Kenton its. Lee and Crr, ante 32— Craig 'vs Trustees T. W* Pr* Dec. 181 — . Greenup’vs.Ken. ton, Har 15.</p> <p>A call in an «atry for Dpu-glafs’s line, attached co a line run by Dou-glafs, a deputy furveyor, for a block of milita, ry íurveys, fot other perfons j thofe lines being generally-known as Dou-glals’s lines.</p> <p>To run with Douglafs’s line from Hickman to JeJJaminet a good defeription, although, no courl'e is given in the entry, not no record referred to* by which the courie could be afeertained.</p> <p>The reputation of Dou-glafs’s line being proved, and alfo a marked line from Hick, man to Jeffa-mine, foiming the lower boundaries of Dou-glafs's furveys, theJ court will prefume the line could be traced byreafon. able diligence, until the contrary is proved* The call from H.to Jeffamine, with Douglafs’a line, ihall not ftop at the eaifc fork, although it is the largeft, and nature has made it the ?nam ftream, And reafon •would attach She appellation to it 5 reputation and general confent having applied the name to an inferior branch.</p> <p>Same rinci-¾>1 Clure vs £ynet ante 56-— Whitaker versus Hall, pofl</p> <p>The exTinfic information of a part) as to the locality of his entry, cannot make it better or worfe. — Con~ Jilla vs Brij'coe, Hug. 45— Clure vs. Win-lockf May 1809 —- Craig vs Pel-ham> Pr. Bee. ⅞86.</p> <p>An entry calling to exclude other entries, is not vitiated thereby.</p> <p>Same principle, and manner of executing furvey in JHofhy & Craig versus Cogar-~~ Drake vs* Ram-jcy and Logan, Hat 34.</p> <p>Whether a withdrawing of the warrant from the office, ' would be a withdrawal of the entry ?</p>

<p> Qceupytug Claimants </p> <p>After judgment in ejectment , defendant had judgment for value of his improvements j on appeal, decided defendant was not entitled to value of his improvements, having settled on the land after co-defendant, under whom he claims, had en» tered a caveat agalnft the claim of the plaintiff* in e-jectment and, had dismi (Ted It — See accord. Jobnfon vs. Doan, October 1% 09.</p> <p>A caveat by either party was a notice within the meaning of the ftatute, and to thofe claiming under them.</p> <p>The limitation in that act, does not apply to notices by suits in law or equity--See accordingly, John, fen vs, Doan, 'post</p>

<p>An entry to adjoin a furvey not then record. ed?and without proof of notoriety,declared invalid.</p> <p>Same princU pie, Moore Wbit ledge — Res pafs and Melton •vs. Arnold — * Ward and Kenton •vs. Lee, as-Jignee of Young —Cleland' sbeirs •vs. Gray — mm Neale ’vs. Gal-Itmey, fall *809.</p> <p>.No proof of Notoriety of the furvey • called for, nor that the furvey was fejade In ton for. xnity with a valid entry. — See PKard and Ken-ten vs. Lee, as-Jlgnee of Youn% —KeyVs.Mat-fon9 and cafes there cited, Har. 70-5,</p>

<p>General description serves to lead into the neighborhood of thofe objects, which are locative.</p> <p>In general description, mathematical certainty not required.</p> <p>If it is sufficient? to enable an enquirer by reafcfiable diligence to find the object, that is all that is required — TVbi-taker vs. Hall, fost</p> <p>An entry, lioo acres on waters of Silver creek, about two miles northwest of the Blue Licks,</p> <p>Clay Lick about one mile east of the creek, to run towards the creek, &. down it for quantity 5 Lick, not mislead ing. beginning at a twoBiueLicks: °”e Lick the call for Blue Licks, ’Tní*faJ fluf</p> <p>The northweft courfe from the Blue Lick? paffing through a clay Lick, na ⅛ neighborhood ; the diftance tile Bi“e corresponding, and from the cr”k but ao poles over a ,⅛, clay Lick. could, j,y reaf0e™ abie diligence, and identified,</p> <p>e^ow iutvey'</p> <p>The general description to ^k ⅛'0(.01^ g0vem the fur-vey after the beginning .** found — Black w. Batts,paif South vs. Botuks, Pr- Dec'</p>

<p>A court oí-chancery h3S sot jurifdktioa to award an injunction againft a writofreftitu. tion, upon a conviction of forcible entry and detainer.</p> <p>A perfon hold, ang the elder legal title, and in poíTeílion by force,and thereof convict, cannot refort to a court of equity to try the right.</p> <p>One out of poiTeihon, and holding the elder legal title, cannot refort to equity to try the right before a trial at law.</p> <p>If he had brou ghc his e-jectment, and recovered pos feflion, or had been lawfully poflVoed, then he might fus-tal n his bill in equity, againft any perfon letting up a claim.</p> <p>In courts of fpecial limited jurifdiction, where a fuic is difmifted be-caufe neither the parties, nor fubject, was within the ju-rifdiction of the court, difmis-fion is all that the court can direct.</p> <p>¿fitter in courts of general jurisdiction, where the perfon, or the fubject, is within the ju-rifdlctíon, but the party has, jniftaken his re-, medy.</p> <p>On difmiiTing a bill for want or equity, cofts given*</p>

<p>■Decree pronounced m the ought nocTcTbe changed but upon ftrong anu of error.</p> <p>Entry, about one mile nearly itom^the^maZ fork of Bra. ^ear'S'thereek¿ that6 leads”to Harrodsburg from Beargrass</p> <p>inftead of Stations not fatal, as ail the before "they crossed the wa-tersofBraihears “sTsb ~s. ‘rodd fofi</p> <p>Omission to call the road by its appropriate name, not mis. leading, as the wouiT enable another to find ct on the alight-v¡¿e'‘VEw¡¡i's inn, tis. ManS»r,t ‘TT"’» cked!’C3SiS</p> <p>Locator not bound to give ⅛ best possible daescription,, !f not mls.lead-a common intent and would d¡ifgence t0 the object _ intend.ed>‘C1® ⅛⅛ VSi ¡¡⅛⅛ “me 65,</p> <p>not'gen-¡,rsuy known, wilt not render en^ being the great and general córd — '’m'Ctoc. ⅛’5 heirs m. ⅛«⅛ and Star. vs. CarUnd, t°fi</p> <p>0 «afonabiediii-Bence- ar explore the three forks of Braihears’a creek to theic sources, to as» certain the main fork, un« and Kenton v$m Lee, assignee of Toungy ante iS —••M’Crackin't heirs vs. Craig9 Pr. Dec* 405^* Smith vs. Tur» ley, fofi Speed vs. fVilfn Pn Dec. 91.</p> <p>^ ccon>”“J g°neral ,eputation had fised on one as the main fork, it is sufficient, ai-thoupti nature had not distin-guhhed it as ~ahaCl¡w Jobnfin's heir's, ante 58 — AT-‘Inte 6 — Br™’n amt 5Smith "w. Bradfc.,-d&ah. Hugh. 55.</p> <p>.evidence to. make a right éw fork a left re^utadoif by must be ’very forcible.</p> <p>In such case another locator would not have been bound to enquire, withing, whether reputation had so ⅛1 departed from general euftom.</p> <p>tureC 'had^6 not diftinguiffied the main fork, feems to^be the which «nquhy ihouidbemade, had fixed raTt!</p> <p>One fork retaining the íheTu °Ledr-cumftance to Siew that repu-tetionha^i fixed main fork.</p> <p>R flden<;e ⅜ ftations of wit-«fies who cai-^*k ltan™£« circumftance to <hew it could enquiry,</p> <p>Witneffes, to fing that they called !t n,ai“ were prefent wh'n !t was fo "" fmg that either o{ the other‘ ^mlinfork thefe circum-ftancescombm. ed are fufficienC t0 fix the mairi fork_Vide Crew's heirs vs. ««”44° — ^- vans’s heirs Manfin's exscu.</p> <p>and one mile talien'</p> <p>. . ^e^Gmn'vs] fVaifin, pojl ^uthfs B°™les ⅜⅛0- versus Dec.</p> <p>t calls for ° road, refers ⅛ 3 distance be-toadfthl distance is to he taken along the meanders of the road and not on a direct line.</p> <p>ted'-^the^Ni" furv'ey to oe one mile from the fork, m a</p> <p>Same princi pies, Green m, Z)avl%TLock hart's ' heirs, Har. 368»</p>

<p>Entry, on both fides of BulIJkin creek, a branch of Brajhcarfs creek, about 2 miles above the forky to include his improve-</p> <p>Tbe fork (hall he conftrued to mean the confluence of Bull, /kin and Bra-ihears’s creek, and not a fork of BulUkin.</p> <p>The improvement called for by a villager is an act of choice, not of neceffity, in his location; |ie was not tied down to any particularplace, it was not the confideration for' which the claim was granted it m.uft therefore be fo described as to enable others to find it and identify it, or notoriety muft be proved) not presumed . — Hathaway vs, Forbes • — ■fihwms vs; —Frazier vs. Pr- D'c,</p> <p>claimant cannot abandon the impr°ve- ^ the Pittance from the fork,</p> <p>pnncr-Do. ran and. jjhhy, di — Craig vs. Machir, anteso m' a„¿ Kenton vs. Lee, gland vs. Sbep-herd, yoft ⅞'“ iruuJms vs. Taylor, ante 41 f,M'Grhee Js* dealt vs. Gal. ¡cwaygojl</p> <p>f3™1 focatoo even to his adversary. **t 3he cat¡on> cannot be brought to "^ortodefcoy</p> <p>pie, Conjiiia vs. Huglu \thirsvs.jobn. fin's heirs, a. F*1. 1809 — . Lr0'g *⅜ ‘ * *86* Pr' °eC 2</p> <p>improvement in ’76 no proof of exigence</p> <p>valid becaufe im. provement had ms no°t°fuffi-cientiydefcrib-ed, and its ex-date of the to-cation not pro-vsda</p>

<p>r actual fetle^ ment, a departure from the certificate" by the entry1 with iurveyur might da¡mtal W the</p> <p>The entry with the fur-andecpTab the certificate.</p> <p>They are to ther — Ctmjílfa' wj.A-i/ree.Hug. 45 — Craig vs, -⅞⅛⅛*!3™ Taylor, ante41.</p> <p>When an ex-fits twoobj*"'? one a matter of record, the o-o^record ftaii be underftcod.</p> <p>lf one be ge-the^cther"™"’ the notorious object ihaii be cord"de¿%ií0&é vs. Hall, ante •jz — M'Crack. ⅛⅛⅛⅞ a 'ts ante 46.</p> <p>An entry with beTaken a^lt would have been underftood w"s'^madl — Craig vs. Baker,</p> <p>Har. 1187 — Cle. land's heirs •vs. Gray, ante 35»</p> <p>To join A, on the north, B. on the weft, and C. on the eaft, and include a Spring — how to furveyed.</p> <p>1000 acres to join 400 on the north, to be fur-veyed in a jquare, the middle or the fou-them boundary of 1000 to be the middle of the norrhem boundary of the 400.</p> <p>Similar principle in M'Ghee vs. Tbomfr-Jon — Craig vs* Machir, ante io —Davis vs, Lockhart's heirt Har. 368— Moore vs. Har-rhy Pr. Dec. 26.</p> <p>Carland* affiance, enters a pre-emption warrant, adjoining his fettlement $ he having do fettle-adjoin Gafs of whom he was affignee, and to Hien^ the'preemption was isppendant.</p>

<p>Ejectmm. Want of no-ing order of furvey, anfwer-defendant^had removed from the comma»wealth.</p> <p>Pri.vate mfor-was iandiord> did not require the plaintiff to ¡ng party t0 the fuit.</p> <p>¡ An attorney at p^TfcntTthe di" ent in bufinefs trankcted in j,;m ’0{ execu. ting survey not amoved,</p> <p>Evidence of th,e surveyor who executed the original fur-vey, no better ane”* therpersonwho had equal opP0,tumty of information,</p> <p>survej aswell identified by of objects found with those named in certifi-tive oath of the surveyor,</p> <p>p0lnt* Octofor 1809.</p> <p>If.,a .,surv.e/ itseH by a reasonable corres» °ne veyor who fhuuid attempt ¡¿ffication^ "depend for credibility on the probability and firength of his detail.</p> <p>Surveyor is a competent wit ness for either party.</p> <p>His evidence of no higher dignity, than any other parol evidence.</p>

<p>The claim, a •village right > in. valid, becaufe the creek, ©n which entry is furveyed, was never called Bucklick creek, but another creek was Catcalled» Tfce kill ve“ called » remarkable fhe i¡tti¿moun. tain; the creek. mour*talu</p> <p>ment was not</p> <p>were otf,er mounds, and other im-s on Bucklick creek,</p>

<p>Entry ^ 0,i of Licking a tmatt diiiance claim ^eaf a spring -where the letters V. treereCUl°n ⅝</p> <p>Call for j.S’s, claim only gen- and ¿‘¿¡thoTh that claim cannot be precifely fixed, that does from the entry which calls for</p> <p>rin & let ters known at neareft Ration, conversation °f there, ot natu-rat notoriety & calculated to from its size-»near ps. fork •prings proved, but to search at all three was ble diligence,</p> <p>Theietters on ftomts!r'mS,1& identifynnS,the spring intended Letters proved seen there before and after</p> <p>cir cumftances prove that the could8be found ⅜ reaSona¡sl diligence.™3 *</p> <p>The entry to be surveyed >n points^ marked tree m middle,</p> <p>son’screek corrected by call S’rVho calls for John* son’s fork,</p> <p>A'call for pre-elt‘i>,tl0n settlement be-fure pre-emption was located ^f11 be attacb-ed to settlement only,</p> <p>To join V. $„ on,the nortb» west fur quan. tity, how to be s“r.ve)’cl1,</p> <p>North-west not flexibleakc northwardly,</p>

<p>Location include improvement,” to be surveyed in a square to the cardinal points, improvement a£ the intersection of diagonals — » Same,iK’CVí?i:¿* in's heirs vs% Steele & Sear-cy, Craig “vsy M.achir, Swear « ingen us. Smitb9 Green •vs. Wat-sen, Smith •vi» Ha rrow*</p> <p>Entry to adjoin settlement on lower side, beginning at East corner,extending down the creek, and angling West9 including creek with the quantity, to be sur» veyed in a fq.uare, & how*</p> <p>Down the creek, general direction for the body of the land,as the beginning is not on the creek> i( down the creek, does not mean that the creek is to be the boundary.</p> <p>Rectangular departed01 from' without» ftrong indication of a 'cM^atid'orur vi. SmiUr.g, tafi Hard” *382— Moore •vs.. liar. ris, Pr. Dec. ^Brolun^&'ak. Pr. Dec. 61-63-</p> <p>datcd°fainendayS the one calling for the other; /!*' 'presumed eldest unless the contrary is</p> <p>beginning where W. C’s east line crosses the east Mountain meh, extending with the creek "then eastward and southward for quantity — how furveyed,— square*</p> <p>East line here is explained to mean east boundary) not either of the east and west lines.</p> <p>Same principle Smith vs Harrow, pofl and cases cited.</p>

<p>Several per-fons claimiug diftinct parcels of land under the same entry* may join in % suit against the ^ oí an adverse tule.</p> <p>And may join a suit against the vendor of their several parts to compel him to perfect the sale, and a suit against the holder of the adyerse legal title to litigate in the same bill.</p> <p>Aiiegatiotitfat ⅞⅛⅛ a claim tor the duect tax, ing affignment or deed for the ⅞;"'’ *S not suftaTn" billa-gainst the hoi-der of an ad. verse claim to the same land.</p> <p>a complain. am ni-y i-t up diftinct entries, to enable him to decr^e w»di¡rá.a "</p> <p>But if are two or more all must-have an interest in one*1.*th*Vel>r tries so set ts the founds. non or equity, agamstthe hoi-her of the aij. s-erse claim,</p> <p>ranud toafetC tier to include his improvement — he had ouiic csbin and cleared ground, and «OTiTaboutT'o poles3from the cabin, the ca-hnd^both^in11 siudcd in *c fxpredion ⅛ p^verTeM'm'</p> <p>Entry, to br-gln at A’seaft” lomen V. quaiiy ea(t. ««dly — -how</p> <p>⅛ 011B call explained and . ’'en<lereti calls — ” Craig ns. Ma- †"’ Evan¡'¡ heirs. <vs% Man% jon,s esctcutors &i vs. Baits: "str[0°p 400 westof entry of 500 acres, how</p> <p>are repUgnCaant* or.eor the other y*acld actua¡ diftance called for ihaii taken 1,1 j^e er line called for. C,I1 for claim deemed surplu-t^men¿r[y without ¡ti</p>

<p>An entry be. tamed, by tea-ion of the de-</p> <p>trees marked ^fore tte date fumed^* from fpecial defcrip-E^dn ¡ng feen one month after the ^ateofthe en*</p> <p>An entry on Mill creek, wa.-ters «flacking, miles from Rud dle’s Station, a ,'ve® “urfe>to i¡ck, a or 3 miles below the °f the</p> <p>Notoriety of Ration prelum - ed*</p> <p>A lickih«wn, correiponding nearly as to difiances and courfe, and no other lick in vicinity being proved, that íhall be the lick alluded to in the entry.</p> <p>To be furvey-ed in a fquare to the cardinal points, lick in the middle.</p> <p>Entry abeut acó poles above M’Fall’s claim, running up on each fide of the creek for quantity.</p> <p>About rejected anu preciie distance taken.</p> <p>Same principle, Wbuakcr vs. Hail, ante 72 — South vs. 2?074i/«,Pr.Dec. 32 —Nichols vs. Wells, Pr* Dec. 3°7.</p> <p>To be furvey-ed in a fquare, lines governed by general courfe of creek, &c, the 200 poles to be mea. fured on a direct line, &c.</p> <p>Entry to join M’Fall’s preemption and Sublett’s entry, running along their northweft line, and running northweft for quantity, to be Purveyed in a fquare, as xux as the call to adjoin their lines will permit.</p> <p>Witnefs having a claim de-pendantonfame beginning, but not involved in this {hit, competent.</p> <p>Contradictory ftatements by a witnefs when on oath and not on oath, render his credibility doubtful ; but fupported by other evidenee5 and not contradicted by any other, he cannot be disregarded.</p>

<p>Entry void, bccaufe not fur-time limited,</p> <p>Allegation that Íjgeiit'ín'tbe coonty, without alleging fuch a. knowiTto^ur6 veyot, infuffi-cient to avoid lie limitation.</p> <p>Bringing Jutf agamft the pa-tontees of ad-verie claim,be. lore limitation expired, not an excufe to avoid the limitation.</p>

<p>Leave given by general court to file exhibits* which were before the court at the decree* but misplaced* approved.</p> <p>On bill pro confesso, every fact aptly pleaded, must be taken as true.</p> <p>But not deductions oflaw* or refults from facts, where thofe facts are not sufficiently alleged.</p> <p>Allegation by complainant, that he purchased an entry & that the equitable title is in him, without alleging deed or alignment, insufficient.</p> <p>Quere — whether a suit against G. to compel him to execute a trans-id to H» according to agreement & against Craig to releafe an adversary claim, could have been joined in the same bill by H.</p> <p>On reversal of decree on bill pro cotifesso, there being an appearance of equity, the cause remanded to the court below, for new proceedings^by amending the bill.</p>

<p>Ejectment. Surveyor’s report isevidence of the present exiftence of objects found upon the land. A coincidence between the objects^ mentioned in the grant or deed, and those reported by the surveyor, may be satisfactory evidence of the boundary of the land in dispute. Acc. Bowling •vs. Helm, ante 83. The report may be impeached or falsified by other-evidence,</p>

<p>Occupying elm-</p> <p>Appointment of commiilion-ers likened to an action by the one or the other, in which whoever pr<-vails mould have eofts.</p> <p>The coils Ihe'^'od^ment on the report.</p> <p>Commiffioners have power to nesses, call upon the survey- or to. ascertain. land^&c. 0Í</p> <p>They are not bound to «port upon which they ailed,</p> <p>if they err the by exception to the report-</p> <p>¡ho'u C°ive time to make good the ception or to support tne re . porl.</p> <p>Those parts of ^e'tedm "& within the pow. er of the commissioners to be taken as correct.</p> <p>When the party might have excepted but did not, the intendment is that there was no cause, or that it was waived, Ejitll vs, Wil-hite Har. 529. ' — Bcdley vs, Craig, ante 1 — . Pa trick & 'wife vs. M'Clure,</p> <p>The report ought to ftate the period (assumed by them) of notice to the occupant. The want of such ftatement good cause of exception if taken in time.</p> <p>Occupant ¿hewing no deed previous to suit in chancery by Johnson vs, Daniel, ihewing bo title paramount to the decree and no title of record, if entitled to the provisions of the ftatute, must be so by iheltering.him-self under Daniel, notice to Daniel must bind his tenant Doan,</p> <p>The suit in Chancery by Johnson vs. Daniel, and not the ejectment against Doan% after the decree rendered, ought to have been taken as the commenu'tient of notice.</p> <p>Same principle, Nourse's heirs vs.. 'Turn-ham, ante 6z,</p>

<p>Entries Invalid, because ⅛» provements called for were not notorious, nor described so ae to be found by reasonable search» and e. ven if found, had no marks ts difinguish them from other improvements in the neighborhood, or to ihew they were made by the persons to whom they were ascribed— Same principle, Ward & Kenton 'us. Lee as-signee of Youngs ante 18- — Speed •us. Wilson, Pr. Dec.91 — Couch man vs. Thomas Hard. 278— Craig •us. Baker Har.287 — My* ers vs. Speedy Hugh. 99.</p>

<p>Entry down the river (no courfe given) means with the meanders. —line down the river to be 400 poles, or the root of a fquare area of 400 acres, taken on the river reduced to % right line j fide lines at right angles to this right line, 4th line parallel to it. —Accord.</p> <p>Craig vs, Haw. kinst ante 53 — Smith vs Crimes9 Hugh. iS — * Bradford vs.M.' CleliandyH ugh* roa-4.</p> <p>u Down the ri. ver” applied to one line only ; and rectangular figure to be pre-íerved, although greater part of furvey would be thrown high* er up the river than the begin» ning called for.</p> <p>Definite call at right angles not to yield to an indefinite call.northward-. ly.</p> <p>If running at right angles fliould crofs the Kentucky ri-. ver, a part of the entry might perhaps be loft* but remainder would not be vitiated. — Ac* cord. Brown vs, HreckenridgeyFx Dec. 63.</p> <p>Court may. change an inter* Umtor upon motion, or upon their own re. flections, at any time before a final decree.</p> <p>Report of fur-▼ey,returned in obedience to interlocutor, and not excepted to, is evidence in the caufe.</p> <p>Parties are in courts, in efti-snation of law, until the caufe is finally difpo-Ced of»</p>

<p>Wltnefs discredited by disproving circum-fiances detailed by him, as well as by difprov-ing the principal point of his evidence.</p> <p>To fearch a dividing ridge twenty-five or thirty miles for a pond, an unreasonable diligence to be Im-pofed on the holder of another warrant.— See, accordingly, Speed vs* mijon, Pr.Dec. 91 ; and for other cafes of un. reafonable diligence, videM*-Crackings devi-fies vs. Craig, Pr. Dec. 40$ — Tfandy •vuBIed-foet Pr. Dec. 231.3 — Ward and Kenton vs, Lee, ajfignee of ICoungy ante 18. Beginning called for, a pond | none found an* iwering the description of the entry, court cannot fuppprt the entry by taking as a beginning the in-fcerfection between the ridge and the courfe from the fait ípring, named in the entry— for fame principle, Cox •vs. Smith, Har.411 *~~Craig vs. Ma. ehir, fVard and Kenton vs, Lee, cited \ vide, al - fo, Craig vs, Bdachhr ,anteio, und cafes there citedfl</p>

<p>In ejectment, the right dt possession and not the right to the land is to be tried.</p> <p>No perfon ad. tnttted a defendant, but one who hath possession, aSiual-lyy or tonjlruc.</p> <p>A person claiming to be ad. mitted to defend must lhew that his title is connected toy and consiftenc with the possession of the occupant.</p> <p>A mere ftran-ger to the possession &all not be admitted.</p> <p>One who has judgment m e-jectment but hath not had execution and delivery of pos-sefsion, cannot be admitted.</p> <p>New trials la eje&ment may be granted to either party.</p> <p>New trial to plaintiff, be* cause verdict against evidence.</p>

<p>The notoriety of such a ftream ^ ber"” sumed. — -¿⅞⅛ Evans’s bún vs.Mansim’sex, tenters, ante 4. objection that the entry gives ”° , nel|hboy-ver> overruled, because "*,.*** ied far> °were notorious ⅛ tbe,lr vlcl>'1ty, and locators musfc be pre-fumed to have made them selves acquainted in the before they0at tempted toap-propriate lands</p> <p>entry cal ling for a claim not of record Corted —Cited Woods vs. Patrick, Pr. Dec. ⅜</p> <p>Commiffion ers' certificate, Rating the af ■ ««¿«TandYhé nature of the claim, and con-eluding with a grant of the right for the quantity, to include the lo-correct than to Include the ins-</p> <p>same must be un derftood in all their certifi-them effeítuai. Courts ought to give «tufo eonftruction, and endeavor them1 whafthe law and the reafon of the</p> <p>could reject, or sustain, but not without* ⅛* express consent of ⅛ cant . — Bryant-, aJ^ I9y and 20*9— pr. Dec- 17.</p> <p>_To include the '“fXe'dore 'I negation of the otller Patta. but oni°yCaa're-petition of the most “s'ntl ¿jí/oi-’j bars, Pr. Dec. 246-7-</p> <p>be appropriated by survey only-so far as ,has ^^,1^ to"a valid entry,— Patterson Bradford, Har. 104 — Wdson vs. Mason, 1 Cranch 45. Entering a caveat and there. by obtaining eldest grant> no cause of complaint--Patter-M.Json vs. Brad. Hu, 103</p> <p>501pn'ensempJ; tiori, on Salt rlvsr> on the east vide ^hc pre emption. Entry o{ -0⅛ JOOO east side,’ be surveyed m ⅛! most eaftvrard- “ 600 acres to ly boundary of the aooo, to be the middle of vra'd™boundal ty of 600. _</p> <p>Salrr Prlncl“ ¿and, ante 84— Craig vs.' ⅛-‘jZvhvs. Lock-tan, Han 368 Moore^ agrns r’ ec'</p> <p>Location of a pre-emption siónersC°cannot aid or control «he entry with they areTcompared only to ascertain the dignity of the claim.</p> <p>Acord. Bryant and 0<zvings •vs, IVailaUy Hugh, iio— Patterson vs, Bradford, Har. zo8 — M'Mil-¿en vs. Miller) Hard, 495-6. —Lillard vs, *l‘aylor's heirs, jPr. Dec. 248.</p> <p>Entry, to lie between the lands of A. and M, construed to mean adjoining, by reason of the relative situation of improve-menis called for in all three claims.</p> <p>A claim of A* and of M. being ihewn and no others^ thofe íhall be taken as intended.</p> <p>Call for M’a land before hia pre-emption was located ft call for his fet-tlement onlyi Craig vs» Ma-v cbir ante >©.</p> <p>Claim depending on M'a claim for northern boundary not suftained for want of identification of M’s claim. — » Vide Ñeah vs, Galloway,</p>

<p>Entry, at the °rkH“a” duding the cal bin near the cen. >unmng the VaTroad* up and down Stone>’3 fork, ⅛* being fhewn,_ Accordingly, Har.^ii — ⅞/ fin vs M'Gee, an“ en-Craig vs. Ma. chir> ante IO — ■ fignee ef Young, ante 18 — M’Smith vs. Tur. ½⅛ ««<123— nGh‘‘ v‘r5Ui 131 --Speedvs. fPtlfin, iJr.Dec„ terra 1814.</p> <p>A furvey is not in its character. an act of notoriety on the ground5 and lo. cators calling for furveys inuft prove the aotoriety of orc^cufumii'i^ iy ; ¡f before thejawallowed ^begil yen out, the evidence of no-0f the deforip-üou contained ln, after that peri, the locator Gray* ante 35, and m te'Mon vs. m>itkdge9 Har- 90 — Key may have the benefit of that defcription.— Accord. PVard aTttd KT” w; Lee, ejjignee of Young^antei%<i^a Payton vs. Good-let, ante 63 — * Cleland's belts vs</p> <p>The lapfe of >7 months be. date of entry to adj°in not pre-fumptive evidence. of notoriety ofthefur-taken as</p> <p>. . Uetcnption, m certificate of furve.v> calls Licking in two imes: tofcarch f.!tysy from Um for,crol?nf St°; ner s fork oí tio^^Louíd'b” an un eafonabie diligence to im-ther locator'— yideWard and Kenton-vi Lee, aInfe“l% — ,⅛,⅞ m. Turley, ante 3z$Sfeed -vs, yi-M’Cwk-m'sdevijees vs. Craig, Hr. Dec. m ?3»-3-</p>

<p>If a party moves for a ground of" fur^ prife, by the departure ought tofile’his affidavit, dis-ciofing the facts expected to be proved by fuch a witnefs. Regularly,the fora nevvtnd ought to file, application. ¡* And none o-therthenwith-ledge ought af-terwards to be recemedorbeard^ Lave no right to require of the party to withdraw hisexception to their opinion (inrefu-iing him leave fore they' w¡u J*ear hlsmot‘°n g,0°unft(is previ! cusly enterei to add addition» a! reafons for <& new trial! be*</p> <p>ne,*u tr;ai°rare moved, fuffi. ^ent lf)true» judgmentwith-out hearing the motlot>>& with, ⅛ '0° fatfehood of ⅞⅛™ and the caufe remanded) iow t0 ¡¡ear ,⅛ on the caufes ftatsd-</p>

<p>Upon fettmg afiele a judgment by default, defendant cannot file afpecial demurrer.</p> <p>After argu= ment of general demurrer, and even after opinion given, the court may per* mit the demurrer to be withdrawn to plead *o the merits.</p> <p>To obtain fuch indulgence the applicant ihould iatisfythe court that it was ne-cefTary to attain juftice, and not ior delay or vexation*</p> <p>Upon exception to the o-plpion of the court for refusing leave to withdraw a general demurrer, it is not fuffi-cient to ftate the party “offered to plead to the merits the plea ihould have been pre-iented, that the court of original and of appellate jurifdictioa might judge whether it was a plea to the merits,</p> <p>After a difpo-fition has beers maniiefted to vex and embar-ráis, the court ought to be fa-tisfied the party has a ferious defence, before leave is granted him to withdraw a general demurrer.</p> <p>Plaintiff declares againft two, procefs it ferved on one only} judgment againftthatone, without objection to the want of fervice of procefs on the other} the defendant brings a writ of error, he cannot aflign for error, that procefs was not ferved *pon the other defendant below.</p>

<p>Mlsrecital oí the debt demanded by the writ in the condition of a bail bond does not v'.uce, if the bail bond has other description sufficient to identify the writ by virtue of which it was taken.</p> <p>Variance between declaration and obligation cannot be regarded unless the obligation is made part of the record by oyer or otherwise.</p> <p>bo!)d mn, apon mo-non of plaintiff. fendantmA bail,, RSSlsnth1I: *</p>

<p>Judges may fceTreferred^to themfelves as arbitrators*— Webb,Har.330’.</p> <p>If the parties ed^fth^co'u" of the award* objection that the arbitrators fane will not te fuftained fcere,unlefs the objection was made in the court below.</p> <p>Similar pnn-Craig, ante i— Eftill vs. mi. hte,Har.5j.8-9</p>

<p>In covenants, and ments, plaintiff may recover ,rsm Ume t0 time fomuchas is due.</p> <p>Upon a mortgage to fecure money by in-ftalments,a bill toforeclofe may fee exhibited, for non-payment offrji in-(lalmtnt.</p> <p>And all the instalments becoming due be. fore the final hearing, the chancellor may act uoon the whole Contract»</p> <p>Order of refe. vence, without coafent of parties, was properly corrected at a fubfequent term by fetting alidethat order, and referring the accounts to a mailer com-mi/fioner.</p> <p>The report of the tnafier in chancery having remained one term before final decree, 8c noexceptionta-ken to the report, no exception can be taken in the court above to the evidence upon which the re. p.vrt might have been made»</p>

<p>B. being in-about'Vo to New Orleans, gave him a wii nng by which H, to fell a par-ticuiar negro, the property of E. m cafe he did not return by a certain day, and out of pay the debt,</p> <p>This is neither deTd°of truftn<it gave h, noiien upon the negro cVothercredl'5 tors,</p>

<p>A wicnefs in-be examined3when called by that j*ny to she witnefs is appofcd, '</p>

<p>After execution delivered to the officer in one county, the debtor filed his affidavit and petition, accor-» ding to the fta-tute, and took out execution to sell the land lying in another county, the creditor pureba* sed the land, took a deed from the ihe-riff, endorsed the credit, sued execution for the balance and received the money $ the creditor Ihall not be allowed to quash the first execution for irregularity ot the petition, and affidavit, &c. after such acquiescence.</p> <p>The debtor upon whose petition the .irregularity was introduced, cannot; take advantage of it.</p> <p>Motions t® quash executions must be made in convenient time; nina years after execution satisfied,is an inconvc-* merit time for a motion depea-ding on parol evidence.</p>

<p>Afaumpfit by partners in iron works, for castings sold and delivered 5 the , , , t in evidence, the notes of one -⅛⅞' slants fe castings, and that drew order^on the manager _atthe furnace, defendants' which were delivered to the receipt * of" the caftings-</p> <p>If the caftings defef dants on the orders of one /ar/ser, drawn to pay his pn~ vate debt, the fanner was the debtor for the firm, and not the defendants,</p> <p>If the tattings for the purpose of discharging Jiotes signed by Orle yOTTnCV (not as agent or partner) but transaction °for the firm, the notes were pro. fn^evidence*s</p> <p>These questions of fact, beleftTTthe jury to be de-tided by the e.</p> <p>wftructhn to the jury, is asked of the courts they may overrule the motion, without giving any in-ftructíon upo» the points of law involved.</p> <p>If a proper in®? ilruction to the jury is asked for, the court is bound to give it, but they are not bound to in. ftruct the jury unless required by one or the other party to do so.</p> <p>Parol evidence admissible to prove that a note figned by one of a firm, individually, was given ora account of part, nerfliip transaction,</p>

<p>Bond, for keeping the pri. ftetiff'is weU.e ’</p> <p>If plaintiff gives_ fecurity prifo^feest0yet refufes to pay when demanded, 'the debtor from the prifon rules.</p> <p>^ Judgment be-murrer for plain tiff, when it been for defen! dant, the court did right, dur-arr!fttethé judgment.</p>

<p>Suit by peti-tl0nan‘J sun’" an¿ assignment being set ford* tahe Petition, say «whereby the plaintiff thereof,” is of form only.</p>

<p>Declaration, that the defendant by his bligation, See. acknowledged himself indebt-edt but omits to ilate when to he paid, it is debitum et sol-wendum in pre-sentí.</p> <p>Alignment of errors in executions will not he regarded, unless they have been brought before the court below for adjudication.</p>

<p>Every frere. qumte to upment u ^acknowledge/! by a confession of judgment.</p> <p>But errors fub-sequent to the confession, are not thereby released.</p> <p>After a judgment by confession, the defendant cannot take advantage of the want of a declaration»</p>

<p>In slander1, the plaintiff' is not bound to prove the words precisely as declared ; if the subftance of the charge is proved it is fuf-ficient.</p> <p>If plaintiff proves a part only of the charge, and that part amounts to cause of action, he ought to have the effect of his a&ionpro tanto.</p> <p>Declaraponf that defendant said J. H. stole corn¿* &c* proof that in a conversation about J. H. the defendant said <( he Hole £orn,” &c. h admissible.</p> <p>Upon objection 4o evidence, the queftion with the court ihould be, whether the words proved correspond with thofe declared tor.</p> <p>Whether the Words are actionable or not, is within the province of the court upon demurrer, or upon motion in arrest of judgment.</p> <p>Words are to be taken neither in yiitiori, flee graviori sensu, but according to their ebvious meaning, and in that sense in which they would be un-derftood by those who hear or read thsm.</p> <p>(i That the plaintiff had flolen corn, that the defen dant had lent corn to plain-riff’s mill, weighed it be. fore it went & when it return-«d and it was lacking,” are «¿tionable.</p>

<p>.A Peüf"n may ma¡nta¡„ aflumpfit upon a P™,1?!*® ™a?e himiAif i»» to himfelf In his ffchciaiy character.'</p> <p>fendanthiredof the decedent', ⅛ Declaration1 u that the de» his lifetime, negro, and pro» mifed to pay therefor^ dol-J3”»™ defendant affumed upon himfeifandpro. the'puintiff^as administrator, ^ Jhe fal<i</p> <p>the defendant dldonnot: in^manneTand form, as the ^ntldff & the ^defendant' did pay the f^e ¾⅛ time.” Re. plication that ⅞ defcn<ia";! debt in the declaration men-üone<!- Thede. after verdict; the iffue not ></p>

<p>The ¿of/ipvo-tnife of a doubtful cl/m is a good confederation to uphold a contract, and it is immaterial on which lade the right ultimately turns out — Cann *vs* Can,x Pr. Wms, 726~ Powell Cont. 14a.</p> <p>If the parties were capable of tontractingjun-deiftood the iubject matter of the contract itfelf, and were willing to contract, a court of equity will not diílblvethe con tract, however beneficial to the one party and injurious to the other.</p> <p>A ftipulation v procured by one party from the other whilft his mind was incapable of ntion- *\ volition, either by reafon of unjoundnejs or of illegal and of unjuft con-ftr&int, ought b° ba j equity,as want-ingtheaffentof ⅛ raffed and confirmsdwhilft min<i was [°u"cd and ftee</p> <p>Motivesindu-c!nS thc one howeverunwifo or ka<i> eaDnot aa[e“ ⅛⅛⅛ was the unjuft inftrument of Fumy, 3 Pr. WmSi</p> <p>act which clearly indi-cateE the affent ¡ja*e ™mdanc¿ perform a contract previously ^"confirmation*</p> <p>Whmacom-Promiie two ^ade will not invefti. gate the relative ““‘⅛,'fo® the purpoie of fetting the a - greement afide*</p> <p>If the parties to a comprcmife underftand the facts correctly, erroneous deductions of law from thole facts by a party would not be caufe of fettiag a(idc a compro» inife induced by thofe deductions.</p> <p>It might be etherwifeif the eompromife was predicated upon the miftake of a matter of fact, which, when correctly afcer-fi'ained, admitted of no dif-jpute or contrariety oí opinion.</p>

<p>Where there lz a fpecial agreement it imift be declared on, and can* fiot be given in evidence under general counts only.</p> <p>When fpecial agreement' |s declared on, it mud be proved as declared, or the . plaintiff mult be non ifuitj</p>

<p>Where a par? ty failed to defend himself at law, equity will not relieve, unless the party was prevented from making his legal defence by circumftances not attributable to his neglect or inattention.— Accordingly, Cunningham vst, Caldn.vtllj Har* 123.</p> <p>Where a face alleged in the bill, is not charged to be within the knowledge of the defendant, nor from its character, prer sumed to be so, it is not to be taken for con» fessed when the answer is silent upon that point,</p> <p>Teftimony taken to a point not brought into view by the pleadings is irrelevant and ought to be disregarded.</p> <p>When a bar to the relief prayed appears on the face of the bill, it is •unnecessary for the defendant to plead ít or suggest it in his anfwer— but may take advantage of it on the hearing»</p>

<p>Copeland contracts with Curry, to convey him a part of a tract of land ; Curry gave his bond to Birney to assign him Copeland's bond, and gave to Birney an order for the bond — Birney proposes to give Fugate an assignment of bis contract with Curry, which Fugate refufes; Birney delivers up to Copeland Curry’s bond, and gets Copeland to give his bond to convey the land to Fu-gate to satisfy, a debt he,Birney, owed Fugate.</p> <p>Neither Copeland nor Fu-gate, having notice of any fraud practised by Birney on Curry, he, (Curry,) cannot compel Copeland to convey the land, but must look to Birney who practised the fraud — Zee •vs. Vaughan, poft Davis vs. PfyrovjHatv 427 — Morrijott vs, Clay9 Har, 429.</p>

<p>A writing in a bill of exception! (purpor« tins to contain evidenc°t win be recei. ved as evi. ^"ugh not proved by the subscribing witness, unless an exception to its going in evidence for-that cause ap~ Pears ¡n the «-</p> <p>the c admit that for evidence, reject* that which ought ⅛ J>e received, it exception to the opinion of ths court-</p> <p>. 0.f'evidence *⅛ proper for the Ju;7 to deter-the truth of the evidence, but gchncythereof in point of may</p> <p>to evidence the court are bound which a jury mlght have m-deration and^ comparison of ts*</p> <p>An assignment of part of an obligation rise ”the"1 as" Eignee to sue in his own name, nor m conjunction with the obli-gees.</p> <p>Such an as-xignmentmakes the affignor responsible to the affignee for the amount assigned -when coilefted, and the la» implies en the part of the affignor to dUi cover of the obligor.</p> <p>lhe of the money by the affignor wasa good B^hoi¿°the a'-sumpsit as laid in the declara-</p> <p>ftatuteot limitations did not begin to run ñe^was'receT ved by the assignor.</p>

<p>Bond obtained *“ oí of the truth, and e°f peering the will of the grandfa*^er ’in?"pe‘“' decreed*'1”'^10™</p>

<p>Covenant to pay a fum in beef cattle or pork, without any day/or payment j breach in non payment on demand at the defendant's houfe, the day after the conve - nant made, is well affigned*</p>

<p>Proof that the plaintiff hath had actual pos-fejfieny not ne-ceffary to main* tain detinue.</p> <p>Demand,other than the writ, not neceffary.</p> <p>Demand, anterior to the writ, isonlyne. ceffary to entitle plaintiff to damages for detention before folté</p>

<p>Matter of abatement mat ^ntj’eenof:af apt time ; i cannot be mo c</p> <p>To an action of debt the de • fendant pleads, that the plaintiff, in combination with others, impofed a watch upon him to bet ; that they took advantage of his intoxication, marked the cards, and cheated him of the watch j that the plaintiff knowing the premises, and being in combination with the cheators, 4.00k the note in the declaration set forth in consideration of the watch} plaintiff replies by protestation fa-, ■ving that the note was given for a watch intended to be bet, &c. and Traverses ths :heating and combination, and of this he puts himself upon the coun-.ry and the defendant likewise } upon which there was verdict & udgment for laintiff.</p> <p>The fact in-:uded in the ¡'oteilation, is Imittedinthat it } but the vty protefling is not precluded from traversing the fact in any other cause.</p> <p>The issue joined was immaterial } the plaintiff could not have judgment until he had traversed and avoided the taking of the note fora watch knowingly lent to bet.</p> <p>The plea Was double, and the plaintiff might have demurred to it for dupli«: city.</p> <p>But when he replied, inftead of demurring, he was bound to reply to both the matters of deience contained in tlhs plea,</p>

<p>penalty of ihe-sifF’sbond three hundred pounds inftead of three thoufand dollars, as required by ftatute, the bond not void.</p> <p>The juftices who accepted fuch bond might be liable for (he deficiency in the penalty.</p> <p>, In fait againft iherifffor an escape, verdict* that he fuffered the prifoner <f voluntarily & negligently to escape,” not fufficient to Satisfy the requi-fitions of the ftatute*</p>

<p>Matters of ¿7-•,vcidance fet up in an anfwer require proof of their correct-nefs — Hardin 538, Bright vs. Haggin, 3 Cr„ 281, Gibb. L. E.46.</p> <p>Mortgagor ftands by and hears treaty be. tween mortgagee and afjignee for the alignment of the mortgage for 3 fum certain, alleged to bedue, and does not dif. clofe any discounts or objections to the fum fpecified in the mortgage, he ihall not be permitted to fet up against the af~ fignee objections to the jufticeof the fum fpeci-fsed in the more gage, or discounts then within his knowledge,— Bemsford 2/5» Alilivard) %. Atk. 49 — Bee. kit •vs. Cordlty, 1 Bro, Chan. Rep.353 — ⅛ ter •vs. RuJJ'ell9 1 £q. Ca. Ab* 321, pla. 7 — Hobbs vs • Nor~ ton, 1 Vernon 136 — Headvs» Egerton, 3 Pr. Wm. 280— Mocatta vs* Murgat)cyd9 1 Pr. Win, 392⅞</p> <p>A mortgagee fion^íhan^ac-count for pro. fits. — Ha^ 7, dak. ⅜</p> <p>Redemption fcy contract In'horfes^t^aih value.</p> <p>The mortgagor anything waT due, and acting agamft con-peiiing m C°th¡ mortgagee to mveftigate the throughout, he ought not to have any day fi»T<kindr'°and the decree for money was pro. fe-J</p>

<p>Upon bill brought by junior mortgagee against prior mortgagor and mortgagee to have an account of what is due upon pri- or mortgage, &c. the answer of the mortgagor, as to the sum due and of farther aav«nces made by prior mortgagee is not e■vidence against the second mortgagee.</p> <p>Subsequent advances, on simple contract or bond, by pri- or mortgagee, cannot be tack-cc to his mortgage to the ore judice of the second mortgagee.</p> <p>Lc'Wlhian vs. Hand, 3 Bro. Ch. Rep, i6a— Mo*ret vs. Pa*ke, 2- Aik. 54 — lítÜTKS VS. Bancty 3 Atk. 630 —Coleman vs. Winch} 1 Pr, Wms. 776-7'</p> <p>Mortgagee having fUted only £. 17 due on the mortgage, and many payments being made fjnee, and failing to pro» duce the bond referred to in the mortgage, his lien postponed to a pu-Hsne incum-brance.</p> <p>Injunction ftayisg prior mortgagee from proceeding on decree to foreclose against mortgagor for a sum confessed, until younger mortgage is satisfied.</p>

<p>The effect of the ftatute against frauds 8s. perjuries, as ic respetls the sale of lands.</p> <p>The decisions of the courts of Great Britain* upon their fta-tute against frauds and perjuries are to be respe&ed ¡ only so far as they enlighten the underftanding or convince ths judgment*</p> <p>evidences of the proper con-ftruction of tne natute of this state, although similar in its</p> <p>tract lands alleged to have been made by She ancestor, will not be fpe-cificaiiy enforced against m-fotttiy although their guardians do not insist tute* ^a ainst ¿uds ml pet-juries.</p>

<p>Accordingly* Walton c/r« Hobbs, s Atic. 19 — Mostly's Reports, (cases in the time of Lord Chan* Kines) p. 184 —a Chan. Cas. 8 — 3 Chan* Vern. 555,283 — i Vern. l6it 137 — Lee vs» Vaughan, poji —Bright vs. Haggint Hard. 536 — » Myers us, Ba* her, Har, 550.</p>

<p>Upon a motion to inflruct the jury as in cafe of a nonfuit, the evidence muft be taken as true, and the court are bound to infer every fact which a ju. ry could have inferred rationally and fairly.</p> <p>Money paid by the perfon acting as cafhiec of the Kentucky Infurance Company by miftake, may be recovered by him as had and received to hie ufe.</p> <p>A cuftom ⅛ banks (offered to be proven) not to rectify miftakes unlefs difcovered before the perion leaves the room, isagainft law and immoral.</p> <p>Evidence of fuch cuffcom was properly re. }ected.</p>

<p>There can be eo decree a-dvfden,ai°of theanfwer, up. on the teflimo-nefsonly1 — Acl cord. Lutellvs. M'l-ver, ante</p> <p>a matter concerns perfonai chat-rriages, the re-roedy is at law eery’winC no" interfere : ill, becaufe a court oi law can grant complete repa-. ration $ 2dly* the afeertainment of damages is the pecu - liar province of</p> <p>So where the complainant aiks only a ratable deduction, ór the afeertainment «f dama-tart¡on-r P '**</p> <p>Where a fraud lale cf a per. fonal chattel, a party may come vacate rhecon-tract in toto— Accord' Wa' pp s</p> <p>in fuch cafes !dre|^lffi°a csntiy demanded.</p>

<p>An appeal bond inuftbeexecu-clerk’s office in the prefence of the clerk or his</p> <p>dif-miffed becaufe the^ bond was ⅜0. oex. u a.</p>

<p>Sidt by (on a~ gainf'r father. Warrant pur~ chafed by wife with her earnings and iIfuei tn husband'a name, is the husband's.</p> <p>Decree in favor of Ion for imprvements on land, it woe error to refufe the father leave to fat off rents and profits after ejectmen~ was brou~ht~</p>

<p>Undera decree directing a jurj the reafonabie allowance for cesínd1 expen” {<■.* in locating, obtaS'nggrants for 1400 acres of land, as if fomung^tbe^fer" vices had acted as^ the guardian was improper to iuffer evidence to be given of landV.alUe°n 6</p> <p>4191 dollars for fuch fervr-inoufly'ndout rageoudy ex-ceflive at firft</p> <p>of jury and decree fur that fum new enquiry awarded.</p>

<p>Certificate express the cause of pre- *</p> <p>has issued^the land in 6uch grant is no ion-ger subject to be entered for by another,— mu 83 — Craig w-Trmtm T. U. Pr.Dec i8i~ Kentm,Harris —Patterson vt, Bradford, Har. 105 — Jasper 'ar' 4 9 4'9'</p>

<p>In 179a G. having a fnit depending a-gainft H. to re. cover the value of aooo acres of land, agrees to let B. ha ¡re the benefit thereof, the value to be referred to S, for which B.agrees to convey land to G. to the a-snount, to be alfo valued by S. of which land a particular tract was to be a part.</p> <p>The jury as-fefs the value of G’a land tc 3000 dollars.</p> <p>B. applies to have the benefit of the judgment, G. refu-fes, unlefs 8. will give fecu-rity for the title of the land to be conveyed, alleging B, was on the verge of infclvency, and his title to the land doubtful.</p> <p>the whole judg. roent in 1799, G, applies to S. without notice to B. and obtains from S» an opinion that he, G. ought to recovered £, 600 of H. that B fhould convey the tract of land fpecified at 400, and other lAnd5 va-m to make up7thl £■ 6°°-</p> <p>b.rm6s hls bul, in 1802, offering to pay-B. the joco d“'hrs rece.lve<1 conveyance of the fpecified of land ac ther lands to make up the ¡on of s.e°Pm</p> <p>To apply to S« to fettle the value of the demand againft H. after the jury had liquidated it, was not within the fpi-rit of the agree, ment.</p> <p>To require of B, fecurity for title of the land was,.addins a thorifed by the contract, and could not have decreed on the of</p> <p>- nant having received the moreceive ¡t, un-he y011?4 f^Jarramy If the land, hav. inS obtained after fuch ⅛ lay ; aiks land of the value of j£. 600 upon an offer to pay for it £. 300.</p> <p>The cafe does ssot deferve the aid of a court of equity, Decree forfpe-cific performance reverf-ed, and bill to be difmííTed with coils.</p>

<p>'oined !StUe the coumry °on a fka in abatement,^e found pfea"Sjudgment in chief is git.^or the</p> <p>murs to a plea m abatement judged for him the judgment agamst ^defen-TBpcndMtmjhr.</p>

<p>L. purchases a lot of G. and executes a bond to V. in payment of G’s debt to V.</p> <p>V* denies any privity to, or knowledge of the fraud prac-tised by G.</p> <p>An answer Ira chancery is outweighed, only by the oath of two po-> sjtive witnesses or of one witness and ftreng corroborating circumftances. Vide Littell vs, M'lvery ante ■203 —Walton njs. Hobbs, 2 Atk. 19♦</p> <p>V. not being privy or accessory to the fraud practised by G.the bond to him by L% cannot be affected by the fraud of G.</p>

<p>0, brings his bill for conveyance of tract of land and injunction against proceeding on ejectment, brought by defendant 1'. i</p> <p>The satisfaction of T's bond to S. wae the consideration to have been given by 0. to T. for the land-this was a condition precedent.</p> <p>The excuse for not satisfy.. lug T's bond to S.is unfoun.. ded. F. had not purchased the land of T. and 0's pur.. chase ot F. ap.. pears to be a collusion be.. tween 0. an~ F. to keep O~ in possession.</p> <p>Decree dia.. solving inj one. tion and dia. missing bill sf. farmed.</p>

<p>Where court below has re-fufed a new trial, appellate court will not direct one, un« lefs it clearty appears the court below has erred ; efpecially upon the fuggeftion that the verdict was contrary to evidence.</p> <p>In fuit by af-fignee againft afiignor, what witnefses had heard of the infolvency of the obligor irt aifigned note* not adnfiffible asevidence»</p> <p>The value of the fait in the covenant afiign ed, as afTetfed by the jury at the fuit of the afiignor againft the obligor* ihould govern th« amowitf so be recovered by aflignee againft afiignorjand not the value of fait at the date of the alignment.</p> <p>AiBgnee holding up the obligation fourteen months without fuit, was guilty of groft negligence.</p> <p>Not accounting for this delay, he was not entitled to re-courfe againft affignor.</p> <p>If the debtor was in doubtful circumftances, theneceftity for due diligence was therefore the greater.</p> <p>Proof that af-lignor had mis-reprefented the circumftanccs of the debtor, not admiffible ; no fuch mifre-prefentation be. *j:g dedated on.</p>

<p>condition tiTÍ hire'for "two acgroes at 10# &0⅛'5 and^tó cloth the ne-groes,- pay tax-thénTat B^at the end «' the year, is a bond condition2'6'3*</p> <p>Totakejudgment for 200 affi'3n¡nW1 brea' «hes, & without writ of tr-quiry, is erro-</p> <p>Condition to bear interest from the date, if not punctually paid, is good, and inte¡rest íhail be gi-jy,</p>

<p>Suppreffu-veri, or ml juggeftk ih/tlng^fide^a contract — Bro. derick -vs. Bro-■Won’ 240 Pr*</p> <p>On an exprefs reprefentation material %he-cha the party ITto not —oec rd. Hec. 153 — Pile to. Shannon, Hat. 55~~M’-totT?^Crmch 27'0.</p> <p>Contract for vacated*1 forex* prefs reprefen-tation which Uue? °Ut n0t</p>

<p> Actio perfonaliS inoriiur cum per» fotia. </p> <p>Cafe forercct-ing a nuiiance aerofs a highway, whereby plaintiff’s horfe in attempting to pafs was killed, does not lie again# executors.</p>

<p>In aifault and battery feveral pleas and iiTues joined 5 the jury a Hess damages for plaintiff' 5 this Í3 fub ft antially finding all the if-fues in favor of the plaintiff, Sc it was the duty of the court to mould the verdict into form —Hawks vs* Croftcn, 2 Burr 698.</p> <p>If a party makes no objection to evidence in the courfe o3r the ]>e csyiao? have a new tii-11, becaufe improper evidence was given.</p> <p>The battery being proved, the purfuit of the plaintiff In. to his own houfe,and keep iug him there befet in’ fear3 were proper dr. cumftances in aggravation of damages.</p> <p>In new trials fcrexceííive da# mages, where the action founds In dama, ges without any medium for the adjuflment, the rule is that the damages mail be outrageously exceflive at fir ft blufh,</p> <p>The court ihould caufe the motion and cau-fes for new trial to be reduced* to writing by the applicant, and enter, ed of record, before they act fcipon theappli-</p> <p>y on puJ ,⅛⅛. »>■<«* to an ac-uyn or assump. sit against exe-cumr or a.tmi. niftrator, the plamrirf must prove his de« m nd, — »Salk»' 296, Bull. N, t*. 140.</p> <p>• Upon plea of jtiene aaminii* travit, the tin* ding of the debt, or dama« get* desi U9% conclude the issue of assets vel nettt</p> <p>The decision in Rex vs. Woodfall (5 jBurr. 2661) not a fi: pte-cedent for an American court ÉO follüW.</p> <p>In trespass upon not guilty and justification pleadedj if the jury assess damages for plaintiff, it is subftantially a finding against both issues for the plaintiff.</p>

<p>A, mortgages tract of land to secare the title to another tract sold and conveyed to B.</p> <p>B. is eviited and brings covenant on the warranty ; A. confesses judgment for certain damages,</p> <p>Upon bill brought to foreclose e« quity of redemption* and have mortgaged premises sold to satisfy the damages* equity W:1I nut ©vertíale the liquidation of those damages by the parties, ©n a suggestion that the defendant was ap prehensive of going rojail for wan: of b il in the action of .covenant*</p>

<p>Where a discovery is afked of defendant in chancery as to a p ar tie ularfact9 his aniwer ia conclufive.</p> <p>The only ground for corn ing into equity beingthedifeo-very fought of the defendant of a particular fact, for want of which, complainant failed in his defence at law; that fact being denied by defendant, the bill muft De dismii.. fed.</p> <p>The complainant ought not to be permitted to contradict the anfwer on that point.</p> <p>And if he had evidence to the point, he ought to have ufed it, and defended at law.</p>

<p>H, brings his bill againft J* and P, alleging that ¡.gavehia bond to which he depo-fiied with P* for fafe keepings that he has never received the bond or the mo. ney } that J.. pretends he paid the money to P. praying a diícovery* &c% and that the one or the other may be decreed to pay him the money.</p> <p>The defendant P. denies the allegations of the bill and feta up the Jlatuteoi limitations.</p> <p>The ftátutee£ limitations is a good bar to the relief fought a-gainft P*</p>

<p>The'count demanded three Haves not natn. ed in the writ j th*s is but abatement, and cannot be af-figned for error after plea in bar.</p> <p>If party withdraws a demurrer after opinion of the court given againft him, he cannot aflign error it* the overruling th3t demurrer.</p> <p>If the jury find the fub-ftance of the ¡flue, the court ought to mould the verdict into form.</p> <p>In de’inue by husband and wife, proof1 of actual marriage not neceffaryj reputation of marriage & cohabitation fuf-</p> <p>Notice to take a uepofition in the town of Louifville,with out mention of any houfe ot place in the town, not fuffi-cient.</p> <p>Proof that a notice was left at defendant’s houíe¿ without gating that it was left with any perfon, not fuificient evi-denceof fervice</p> <p>If replication to a plea of the ftatute of limitations ihewed that before one difability was removed another aecraed, and fo on in fuc. «effion, fo that the plain'iff la. bored without intermiííion un. der fome one or ©therofthedif-abi lilies from che time the caufe or action accrued, it would take the cafe oat of the ftatute*</p> <p>If the ftatute once arcaches and the limitation begins to run, it continues to run, not - withftanding ¿liability after-wards incurred by the act of the party, as inarriage or absence from t.ie Country,</p>

<p>If the writ ie not executed on one of two defendants, the entry of special bail for him is not conclusive evidence of his having appeared,</p> <p>Jf the record {rates that a defendant appeared in proper person and pleaded, thi& cur » the want of service of process on him.</p> <p>If two defen- and plead, and judgment is entered against the js considered as against both,</p>

<p>The general court has no jurisdiction of a motion b.y a iheriff 'vs. his deputies.</p> <p>Consent could act give the court jurisdiction*</p> <p>An agreement between the iheriff and his deputies, that for whatever sum the court should give judgment on behalf of the commonwealth judgment ■{hr? old immt. ■¿lately be en. tered in favor of the fterifl? against his deputies, could not authorise a court to rendes judgment in favor of the fte-riff or his deputies, witfnuC process and without the appearance of the defendant*</p>

<p>On covenant to pay property ona daycertain, no fpecial demand is necef-fary to He averred in the declaration -</p> <p>IiTue whether the defendant had a known refi-dence or not at the ¿¡ate of the covenant or lince, is immaterial.</p> <p>The defendant fhould have travcrfed the breach alleged in the declaration, by dating his ufual reíidence where, See. and that he was ready then and there to deliver the property, but that neither the plaintiff, nor any one in his behalf came to receive it.</p>

<p>Jn derisri^g on a ;i Is to fet forth rh& material parts. Affidavit,made by a per fon to whofe benefit the writ is en-dorfed, that a witneis is mate, rial, is fufficient to authotile the awarding a de» dimus to take his depofitioa.</p> <p>Separation of the jury before a verdict rendered, is a mis-demeaning of themfelves, foe whichthe court might puniih them.</p> <p>But it is not fufficient of it» feif to vitiate the verdict returned, efpe-cially when the verdict was agreed upon before they fepa-</p> <p>Erroneoua opinion of the court upon aii abjlract popo» Jixion, not caufe of reverfing the judgment in chief»</p> <p>The party ex. cepting to an opinion of the court ought to ihew the relevancy of the opinion to the trial in which the opinion was expreffed, and that it was pre. judicial to his right in that cafe.</p> <p>A depoiition, relating to a new trial, copied by the clerk, but not made part of the bill of exceptions, nor made pait of the record, will not be regarded by the appellate coarta</p>

<p>A notice of » motion, which will apprise the deiendant of the demand intended to be set up, and certain to a common intent, is sufficient.</p> <p>Upon motions, with notice, the plaintiff may recove? less than he claims in the notice.</p> <p>Motions upon notice are governed not by the rigid rules in actions of debt, but to be considered as an action on the cate.</p> <p>The plaintiff, may recover whatever he shews himself entitled t o9 within the scope of his no« tice</p> <p>Where the plaintiff resided out of the county, and had no agent or at*. the (heriff for money coilec. ted on the exe-torney living In the county, evidence that plaintiff’s attorney was seen conversing with the fheriff, ** either before or after the return day oí the execution,” not sufficient to in-</p> <p>The ftatnte does not give the remedy b_v the 'sicur^h^of the principal ftenff, for mo-siey collected on execution.</p> <p>The remedy fcy motion for monies coilec-ted on execution by the be sued within the time limi. othewhe^The pi,¡ntiff roust pursue the common jaw point,Query vs. Hard, sj.i,,. J ’'Sop.</p>

<p>The want of an endorfement of the fpeciss of action on the Writ, and objections to the affidavit to held to bail, muí); be moved in the court below, and beforejudg*</p> <p>That íherííf returned original bail bonds inftead of copies, is not good objection to judgment a-gainll bail.</p>

<p>Parol evidencs not admissible^ to enlarge or diminish the quantum of articles receipted for, unless by fraud or mistake in Gating the amount ⅛ nor to ihev* that a farther sum not mentioned in the writing was ten be paid on a contingency, over and above the prices Gated therein.</p>

<p>Demurrer brings the whole pleading before che court and they *-*:• bound to giv¿ judgment a-gainft the party who has committed the firft delect ia matter oí iub-fiance.</p> <p>On award to pay money with out any day fix* ed, the money is due prefently, and no demand was ne-cefiary to enable plaintiff to maintain hisac. tion on the a« ward.</p> <p>Upon plea of tender & refufal the money muifc be brought into court, and To ftated in the plea.</p> <p>Upon the plea of tender found for the defendant, the plain, tiff is entitled to take the money tendered out of court.</p> <p>The defendant having pleaded the general if-fue, and two bad fpecial pleas • to one count, which pleas were adjudged good upon demurrer in the court below, the verdict upon the general issue fet a-fide, and new trial awarded.</p> <p>It is prefumed a new trial was properly award* eá, unlefs the record /hews the contrary.</p> <p>The general rule is, that a new trial muft be upon pay. ment of cofts of the term— Bull. N, P. 327.8.</p> <p>To this rule there are exceptions, and if the new trial is granted without payment of cofts, the court ihould ftate the fpecial reai'ons for making the exception to the general rule</p> <p>New trial, be caufe verdict is contrary to evidence, muft be on payment of Cofts.</p> <p>Judgment for defendant being reverfed on writ of error bv plaintiff below, the court below directed to order, mir.c pro tunCf the pay. ment of cofts of two new trials, which had been granted on motion of defendant, without cofts.</p>

<p>Errors inpm-ceeilns before ^hkh th^de-fendant did not moTe thc co“rt rect°Wwii°i 'not be regarded in the aPPellate</p> <p>want of replication is natPer se>caufs a^ecree'”4 °</p> <p>If complain, set3 do'*n Llring'on bin and answer, the “ns"íer “j11 on ke^af’true'in ail its parts</p> <p>But w.here hearing on bill> answer and del pos!!lon? > meré'form” and the court will suffer it to be filed “ nunc pro tunc.</p> <p>Purchaser advancing money fora sIave3who proves unfouBd and different from the representations cf the seller, wherefoie the contract ¡3 rescinded, has a lien upon the slave for repayment of the money adían-ced*</p> <p>The use of the slave, properly set off" against the inte* yest of that part. of the purchafe money advanced 5 jst, because the complainant ought not, in invito, and by fraud of the seller, be made a hirer instead of a purchafer j adly, because ihe sum advanced was more than the worth of the slave upon fair valuation.</p>

<p>In covenant, upon plea of plene admimjlta-vit, if the jury find damages for the plaintiff, it does not conclude the if. fue of aflets vei</p> <p>The jury mufc expreflly find aflets to the va« lue of the damages, or if not to that amount, of what value —'Accord* % Waíh. 30I.</p> <p>On iuch iflue the plaintiff is bound to prove his damages— I Shower —Salks 296— BulLN. P.140*</p> <p>May have an inquifmon and take judgment for aflets, quart* do acciderint.</p>

<p>Replevin bond need not recite that the property was veftored to the debtor</p> <p>Jnterefts, cofts ¿fcflieriff’scom-jniffions be come principal, and carry inre-reft in a reple-vin bond.</p> <p>Sheriff ¡s not hound to en-dorfe the time of levying an execution, but the time it came to his hands,</p>

<p>To covenant for'lconveyance 0f land, defendant pleaded g* the true intent and meaning of t3e</p> <p>ihould have made profert of</p> <p>EE conftruction & legal operation °f deeds’ ⅛* courfj not to the jury,</p> <p>, RePhcatl°ra ofa s“bse^enC demand and refusal, does j°fecjUr0ef p¡ea 07 under'</p>

<p>On plea of covenants performed, evidence of a pa-rol agreement that the plaintiff fhould look to another for performance & exonerate the defendant, was improper,</p> <p>A covenant cannot be re-Jeafed by parol.</p> <p>Upon cove, nant by tenant to keep demised premifes in repair, the lef-for’s giving his bond to another to convey him the eftate, does not preclude him from recovering damages for want of repairs.</p>

<p>Where a judge allows a writ ct error coram •uobis, the pre-iumption is that evidence of the notice of the intended application, as required by (la-«ute* was pro* duced to him»</p> <p>It was error to dismifs the writ in teim time, becaufe no written notice or proof of service of fuch notice appeared on the file.</p> <p>A bond returned as a re-plevin bond, on its face executed by a Jeme coverty wife of the principal, is void as to</p> <p>It cannot have the force of a replevin bond against the fe-curities, when the principal is not bound.</p> <p>Execution cannot issue on a replevin bond against securities only.</p>

<p>General tra-verfe according to \ifual form, no refponfe to particular allegations not before denied or confefied and a. voided, ■■</p>

<p>' “ ! ,f ' .-ar-,1, , 11 vies ¿re , heirs, ators and theieMn main tain a writ of error because the, have mte-</p> <p>a private individual cannot Lave an action, against one who er.f'-tsa public r.uiiance unlei's he has fuftain-ed Tome fpecial injury thereby,.</p> <p>An individual who was not a party td an or-oer of the court reípettíng & road, anti who does not appear, to have lome intereft or to have iuilained an injury thereby not common to the community, cannot maintain a writ ol error to fuch order.</p> <p>if the party though whofe land a ruad pas. scs has not been made a party, by (ummons, lie may, not-with {landing, have a writ of error.</p> <p>An order dis* continuing a road, however irregular, cannot be rescinded for ibu.t cause, at a fub-Sequent term.</p> <p>it is irregular to make the juftices of the court parties to a writ of error prolecuted by a púvate perlón, to reverie an order respecting</p>

<p>A. claiming land br a Paro1 “⅛⅛^8™» lift it in his n.ame for the</p> <p>tax, assessed in the "ame marfliaPs deed* reciting iuch falc>. conveyed "“,⅛⅛,0 the</p> <p>lend was erroneoufty whenitbeiongl ed t0 B- »nd [¡⅛ direct° tax' ¡t is neceffary to a derivation of t0 (hew thJco. pies of the lift of land> ftate-atfcfled, and notification to pay, had been jmbliihed according to the requiiition of the act of con-grefs ofiSoi.</p> <p>Until claimant under the marshal's deed had made out a good derivation of title, prima facie, it was not ne-ceffary for the perfon whoie land had been fold for the direct tax to prove payment of the tax.</p>

<p>The opinion of the court in granting a new trial, will be prefumed correct until the contrary appears from the record.</p> <p>If the court re. fufe to fign a bill of exceptions, a certificate of the by-ftafcder$ that it was preferred to the court and that judges refused to fign it, is hot fufficienc to give it credence, the by-ftanders fhoald certify that the fUtement in the bill is true,</p> <p>lithe by-ftan-ders certify that its ftatement is true* and the court admit it to record 'without certifying ■why they refu-fed to fign it, It will be taken as true upon the certificate of theby.ftanders.</p> <p>If the court certify, as the caule of their refufal, that its ilatements are not true, the certificates of the by-ftanders muft be fuppor ted by affidavit.</p> <p>If the judge admit the bill ofexcepíons to record> and cer* t0 fijn ¡t; tb)t its ftatementU s»lNe,i> and ¡ntheftatemenc in the bill of ®xcePtions evidence given, and feal and cert‘fy h‘s 0f exception « corrected by the “nificate the judge will be taken as part of the record, hesc*h* tionsU not cer. tified as true by the by-ftanders by jSa„ib</p> <p>The intereft 0^sa to* ⅛? competency-!* bias, influence, to</p> <p>xc render witnefs incom-tereft’muft be the hile of ba“5,tocdae1' p"fe_ ‘m 0 e"</p> <p>. if a witnefs ,s equally mte-fideSj that ⅛, refponfibie to Plaintlff¡or <⅛-ing to the event °f the caufe, he 'dsec°|”py')nt °r</p> <p>A man iarid or”V fold jlaves, and executed a vmtmg title, may be a witnefs to prove he had compeiiabie to give fuch evi- '</p> <p>e fon íng and opinions of the judge, dehver-a queftion* of new trial, aré «"-rtVfthe record when no bill of excep-to"theaSo'hdon ofché^oun.1011</p>

<p>C0U^"wtIl<* » mo' tion for a new trial, and an exception is taken ro that opinion, by fpread. jtng the evidence on the record to ihew the opinion incorrect; the appellate court fhould exercife its power over theiubjcct with great caution and circum* fpection.</p> <p>In fuch cafe the court fhould take every rational inteicnce «gainst the party' moving it, as if he had demurred to the evidence»</p>

<p>I. being indebted to W. and holding C’a bind for the conveyance of land,makes fale of feveral parcels of the land ■* — W. exhibits his bill against .!• against C. and against the p.irchalers, to have the land fold to pay his demand \ charging a combination between his debtor, the purchriíers and C,' — and alleges I. has not oilier property to pay hís debt. 1. caufes C. to make deeds, (to the purchasers) pendente ¡He.</p> <p>A chofe in a£lion is not iubject to be taken in exe-</p> <p>.Equitable in-terefts in lands are not liable to be taken in execution*</p> <p>At law, the bond of C. to I» could not be taken in execution tofatis-. fy I’s debt nor the land described int he bond.</p> <p>Equity cannot conftrue a fta-tute ohmvife than a court of law can.</p> <p>Legal eftates only are fub-je&ed by our ftatute to the payment of stebts*</p> <p>Equity cannot fubject a fund not liable by law to the payment of debts*</p> <p>A bill in c-quity will not lie on behalf a creditor to compel his debtor to convert a chofe irv a&ion into an eftate in possession, or a covenant Teal into ¾ legal title.</p>

<p>The prefumption is, that tne have done'ri^ght until the contrary appears</p> <p>a fide, Mill be prefumed to have been, fet afide for fufE-cienc caufe un-lefs the contrary appears from the record.</p>

<p>VUe Regtfter’s Office, Ky. file N« j 14, ffirvey ^*5599-</p>

<p>SeeRegifter’s Office, Ky. file ⅛</p>

<p>No.’i No, j*x8,</p>

<p>B- g!v” h/* a™fct°0f ianj' which bona M. a|1‘S'is t0 p*» biii'againft'the affignor and af-%nee for relief, Contracts pending the bill m equity» m”gy'sat la^ of B.: thecon-tract 18 annul~ ^ ¡hsy entitled ⅛ a decree a-gainft hP* ta and to confine the decree foe jyfTalon^ was erroneous.</p> <p>Where one j^Lnd¶™» contract which is afterwards mtfréprefenta-1 ⅛ has * iien upon the land for reim-burfement.</p> <p>A decree over against M. in favor of the co-defendant P. without bill or anfwer in nature of a cross bill, is err-*ne. ou t — Murphy *vs, Owens, May 15, 1809 —• Myers v>-£aker (£? Ows-ley, Hard. 54.8. — 2 Atk. Howard vs. Hopkins p. 372,</p> <p>An agreement made between M. and F. the co-defendants, pending the <uif, could not authorise such decree. Similar principle, In Lindsey vs. Af CleV.and, ants 262.</p> <p>As between co-defendants there is no Us pendens to au-ihorife the court to receive in evidence and enforce fppci-iically, an agreement be» tween them.</p> <p>Evidence to Ee legal, must te relevant to fome point made by the pleadings*</p> <p>MiU roy vs Hensley 9 ante p. 312* — = Patton -as. Rob'xnson, ante 286 —'Iunjlall vs. M'Chllandy ante 1% 7 — Cowait Accord Pria></p> <p>attorney fir thedefen. dam had n0 Morehead by fuch decree, if fucil attorney jj’*1 a 'nle<i</p>

<p>Members of a company not m. relponfible in-dividuaiiy for debts Can|a"re not exonerated by an exhaustion of the property put into ftock.</p> <p>money not paid But perfons acting as managers, not members of.the af-fociation, and having no inte-reft, are not refponfible foe company debts contracted by them as managers, unlefs for fraud, excefs o£ their authority, receipts of over — Hodgjorv vs. Dexter, i Craneh 363— M.'Beath vs* Haidimand, 1 Term Rep, 172 —-Unwin vs. IVolfeley, I Term Kep, 674.</p>

<p>A ~ci~efac~crs may by fratute of Kentucky, be executed any time before the return day.</p> <p>`` Judgment (on scirafaciai) pee record," j~ only an ~nfor~ ma! mode of entering the decirion, but h~ is aufficicnt.A</p>

<p>Ois qa aeram rnrrict icr fer-sesasa deck, ev~eoce c~5 what other clerks had cc - ceired for firrsi_ jar lervices waa proper to be fubroitted to the Jury.</p> <p>intereff is not allowed on nso~ ney lent without a note, nor for gooda (old and delivered, nor on unliqui_ dated accounts -Ace Soail~'vs Leavy, Hard. ~iS-Rarriion vs. Hanaley, pi~fl</p>

<p>Writing proffered, is not part of the record unless oyer is taken.</p> <p>AveimentthaC the covenant was net performed to the assignor, after notice of assignment given to the obligor, is but surplu-sage.</p> <p>Where cove-, nant is to pay property on a day ftated, demand at defendant’s residence, is not a necessary allegation.</p> <p>Accordingly, Grant vs. Grosbon, Hard. 8?.</p>

<p>Petition and fummons cannot be had on a note for pay-scent of “¿-50 ‘n or n0‘es‘</p>

<p>A private memorandum of the fciith of a child, not evidence.</p> <p>That an .jant had worked for himfelf apart iromhis rather, could not make a note obligatory on him ex. etuted during hi* infancy.</p>

<p>Theeniorfe-due only upon a contingency, if that contmgen-Q y nCV6I Í1SD» peneá> ⅛,. ‘0_ biiges had no</p> <p>canno-iernember whether th* £e‘"',ces ™ers ¿¡.j t0 ⅛ endowment, he hava’the ma* ney— : Nor ought he to take* advantage of the uncer-tamty ‘»^the required of him, and made andhiTassÍT ¡ Ss* in noS better situation,</p>

<p>A <)ee<! ex termini means a wr¡t¡ng sealed and delivered— vs‘ te</p> <p>A covenant!® Pay £• J5oin months’forth* fum o(£. io o is usu</p> <p>plain tiff’s demurrer to a plea is improperly Sustained, and judgment given for him, on reversing that judgment, the caufe remand-» ed,with leave to withdraw demurrer and re« ply.</p>

<p>The debtor may direct.to which of two or more demands his pay ments ihall be applied.</p> <p>If debtor does not direct the application, the creditor may apply it to any one of his demands, where they are of e-qiial dignity, and parallel in their confequen ces and charge upon the debt- or.</p> <p>Jf one debt bears intereft, another not, the payment ihall apply to that bearing intereft.</p> <p>The creditor ihall not apply the payment to a debt not then payable and.de. mandable.</p> <p>The Jury ought not to find a verdict upon their knowledge of a fact, not detail, ed in evidence befo-ethe court</p> <p>Nor ihould they exercife a licentious power of finding a fact without e vidence,or con. trary to evidence*</p>

<p>a »»/&/««. ^nt put the piain-tlff "ih/oAerT as</p> <p>are several issues, and the record ftates the jury were fworn “ to try the issue,” the -De t,ken coi. lectively — and dama^s^res* pa™s*gte0 aj¡,</p>

<p>After anfwer, it is too late to object to the procefs or the iervice of it.</p> <p>Replication to anfwer in chancery is now but formal, and an entry oftireJ>H-caúoñ” «1 tbe rules is fuffi-cient.</p> <p>Vide Sccl 1 vs. Ciarkfon's ex'r, ar.ie 277.</p> <p>Upon bill for fpecific performance, or to have the value cf the land in cafe defencant cannot convey, and calling on-defendant to ex. hibit his tide j if defendant does net produce his cíele papers, the decree for the value of the land Aould be made.</p> <p>Upon bill by heirs and executor to have the land or the va~ luey the ftatement in che bül that he was executor, and not cuefiioue.l b* the anfwer, author] fed the: court to decice the money to be paid to executor without the production of letters tejia-meiitary,</p> <p>'rhe error, if any, was to the prejudice of the heirs, the com-piainants, and cannot be taken advantage of by defendants as it v/as not to his prejudice.</p> <p>On an ¡{Tueof facts directed by the chancellor, parol evidence may be given.</p> <p>The finding will be prefum-ed to be correct,, uiiieis the record contains enough to ihew the contrary.</p> <p>Matters fet up by way cf avoidance in an anfwer muft be proved. — Bull, N. P. 237 — . A-ivdtc)! VS. Azv-iUy^zVeril, 191 — Hampton vs. Spencer, a Vern. 288.</p> <p>To a bill for-Specific performance, the de-fence fet up was that a part of the confederation given for the land was by. "bond on a per-lón who was infolvent — rhis defence muit be proved.</p>

<p>After appear» anee and de-fence made, it is too late to object to the notice.</p> <p>A fee bill Issued by a clerk, against “ E — 9 [B. to pay]’* did not autho-rise a distress upon B — nor subject the clerk to a penalty at the suit of B — the services for E. having been actually rendered</p>

<p>CauTes in which the party has a right to a trial by jury, are nut[j'a-rily excluded fem the jurii-diction of jufti-ces of the peace The trial by jury tc as heretofore” confines the jurifdiction of judices to oaufes of lefs value than£■ arifing ex con* itaefut or quaji ex contractu^ & excludes their jurifdictian from any caufc ofaction arifing from tort or ex delicto • except in cafes of tro-ver of lefs value than £% 5*</p> <p>The damages laid in the writ and declaration^ in actions founding in damages, give the court jurifdiction 5 and the verdict for lefs than 5 does not ouft the circuit court ofju« rifdictioc — *Ac^ cord. Wright Cernís^ this term, May 24*</p> <p>Vide Hum ⅞/⅜⅞ Ben, fofi</p>

<p>A judgment given by a competent tribu* nal* although erroneous, is obligatory upon the parties until reversed by a court having competent jurisdiction to re-mas it s and if no- fteps are taken within the time limited it will be conclusive.</p> <p>A circuit court has no power to re-verfe its own judgment after term is passed and parties are out of court.</p>

<p>On motion for continuance, the grounds jhould be fet forth in writing Verified byoath.</p> <p>"Want of prS-¿aratíon for trial mu ft not have arifen from negligence And the continuance fhould appear necefía-ry to the ends ofjtftice,</p> <p>Where the witnefs refides cut of the ftate, it is neceflary to difclofe in the affidavit the fact expected to be eftabli/h-ed by his tefti-inony.</p> <p>Vide Letcher *vs. Starling) fojl Singleton vs. Carr, fcfl</p>

<p>On error ts* ram •wbis> t* quash the Iheriff’s return on an execution and the bond taken as ⅞ delivery bond* was erroneous.</p> <p>The bond not being good as a delivery bond* the execution which issued on it, ihould have been qttaflied*</p> <p>Whether the bond was os was not good to suftam an ac-non at com-moa law, the court ought not tohave deciocd.</p>

<p>A note, ac-knowiedging a .< ⅛⅛ j pro_’ ynife to pay as soon as I re-if he wants it at that time,” Wort r'etitioñ andVummoijs°n</p> <p>Eitherthere-draft b°f ⅛* fenda’nt,3or a demand of the R?°.ne?L n. ⅝ have been a-vered, to give cause of action.</p> <p>admits of no averment in «unmooa ^</p>

<p>Applications £o a court of chancery for new trials at law, are sanctioned by principle and precedent.</p> <p>A new trial ought not to be awarded, in T. A. B* where complainant’s defence at law could only go an mitigation, and moreover the want of de-fence there was owing to kiracgligence*</p>

<p>A person fum* moned by th« grand jury to give evidence on an indictment for trespass, is not a. prosecutor within the meaning of the ftatute.</p> <p>A motion to dismiss for want of a pro - secution may be made at anytime before the jury retire.</p>

<p>Debt will no* lie on a writing to pay (< a horfe at the value of thirty gouAds.*’</p>

<p>On bond con-Ationed for nejTby Mai-ments, judg-^tcred'™5' ^ penalty to be discharged by ■feveral^inftal' ments, with a cessat executh.</p> <p>‘ud^ment ÍU<¡f anftalment is not paid exe. sution issues ■without a scire</p> <p>Where judg. ment is entered to be discharged by such other damages fteyTu'on'su* ing ¡árefacias, ¡and assigning new breaches} te take judgment upon sci,e facias without Reaches U er--tajieous.</p>

<p>Cafe will not lie on the re. cord of a judgment of a fitter fíate, rendered after appearance and de-fence to the action — it ihould be dekti</p>

<p>Covenant to ronvey, as foon as an infant came of age, or former, if it could be done agreeable to law, the inte-reft of ®ne of the legatees.</p> <p>Before infant came of full age, the cove-nantee applied to the county court, and had commiiTioner* appointed to du vide the land, and ihows this proceeding as enabling defendant Co convey.</p> <p>Application to. county court be. ing irregular and unauthorif* ed, does not support the breach of covenant fuppofed#</p> <p>Obfervations made by coun-fel to the court? that the witnef. fes were material, not fuffi-cient evidence of their materiality on motion for continuance.</p> <p>Reliance upon the clerk to renew fubpanas for witnefleS; according to his general cuftom» without any me morandum given him to issue subpanas9 isnot due diligence to prepare for trial.</p> <p>If plaintiff, will not rely, upon the im. plied confession of his caufe of action upon executing a writ of enquiry, and offers a covenant materially variant from that . declared on, the court ihould not permit it to ⅛. rvidsnes.</p>

<p>Death of f nr-cipa! after ca. fa. r/lul'fd, r'°i dífchárge'baiL1’</p> <p>Courts of e. do "ot iega! advantage uniefs they are the complainant's equity : ™ "⅛ m*nt «Vawfó let in a defence íacní C011" 1U5C~</p>

<p>Relief granted An adminiftrator againft a judgment at lavtr npon d'lfco-very of a wit-Befs to a fettlement made by the inteftate in his lifetime*</p>

<p>Action for ma.‘ licious prolecu* tion.</p> <p>Upon fetting' afide a writ of enquiry, the courr properly exercifed their difcretion inre-fu ling a fpecial plea, of proba* ble caufe, as such evidence admiffible</p> <p>A grand jaror* before whom ™aa 'prefented*-was competent p“np0ra°nvteathe ⅛" eT'before^tbe grand jury to Pr“,ecute ⅛® itl lctmsnti</p> <p>The attorney monwe'ith”11" who fet down the name ofihe profecutor, n not the only ad miihbie witnefs to prove who</p> <p>not a right to demand the o-court"upon lan abfcact propo-</p> <p>. . ^witneff's is to be decided by the jury; wherethe^evi’ denes was con. tradictory, the ftruct the jury that there was probable caufe,</p> <p>If one party proffers a paper to be read to ¡s* accordinHy done, he can. not afterwards becaufe'k'was fo read.</p> <p>When a party evtdenc "3U!and when the ad. verfaiy (hall be «impelled to ,er,</p>

<p>C. and J. lo¿ cated land fos B. defectively 5 afterwards they made a location for M. including B’e — they to have one half — , C i gives an obligation to warrant the land located for B. sells His interese in M’s location to L —with 2 ftipulation from L, to relinquish all M’s claim to the interference with B — * afterwards, L* purchases the residue of M’s location, and get* the conveyance to S. in trust to satisfy certain demands S. had against L.</p> <p>F. the purchaser from B, ¿hall hold the land, unin-cumbered of M’s location.</p> <p>The possession of a purchaser from a joint tenant or tenant in common, ought to-be respected and prote&ed in a division as far as consists with an equal partition.</p> <p>The perfon receiving a land warrant to locate is bound to obferve ordinary care and diligence in ¡oca. ting it — -an o - mission in this respect, would subject him to responsibility.</p> <p>Jn deciding the queftion of responsibility, however, allowance should he made for the fiats of the country, the law under which the location was to be made, the rules of con-ftruction subsequently adop-* ted and not known or anticipated at the date of til* location.</p> <p>Where locator makes defective entry, or erroneous furvey, and af-terwards takes the land by an entry for him-felf, he is responsible and ought to secure the title to his employer,— and in equity, ought not to be permitted to take the land by virtue of such subsequent entry foe himself, — L'd- / ard's heirs vsi Taylor's beirsa Pr.Dec.246-7,</p>

<p>No set form ot worás *te cove! mint,</p> <p>Anf words which'ftiew^e paute to a deed, have concurred and assented to the performance, or forbearance, of a future act*</p> <p>If the cove-nantee is the cause why the covenantor can. not perform his covenant, he is «xcufed, and money contracted to be paid him for performance, becomes due as if he had actually performed.</p> <p>The rules of decision in court of law and courts of equity are the same.</p>

<p>A note for money, i( which I promise to pay as Toon as I Gan’* — »» due, in presentí,</p> <p>A plea of pa-rol agreement to wait until a draft was received from N* Orleans, not good*-Jó &>ufry us. JVbite} — ^Hanly us* Moorman, enteiji</p> <p>n^P^ei t0.d«* nient *of!S'the note is not</p> <p>tiff¡a errorp cannot take advantage oi his own er-™tryor court bdow,</p>

<p>^in trefpassjor declaring0 they were bis fuffid-ent affertion of plaintiff. *U</p> <p>That the jurors m making divided the aggregate of their indivi-hy5 twelve,"is no caufe for fitting _ afide the verdict, unless fraud chicanery was pracciftd m fo °</p> <p>Affidavit of jurors as to their intentions and jimremons ont'ht not’ to received to tmiaUda:e the verdictand the couit ffiould be very cautious in collecting a jury (after they are dismifsed) wich intent to fee afide the verdict.</p> <p>On motion for a new trial on account of fur-prife by intro* duction of unexpected evidence, the affi* davit ffiould fee forth the particular point of that evidence 5 and also the meansby which the party expected to counteract it, on another trial.</p> <p>The court ffiould require an affidavit to be Bled in such cafe, before they heat the motion, Sc ffiould not adjudicate upon the offer of the party to make affidavit.</p>

<p>Devisee of land, would be liable in the same manner aa heir, to respond in value» upon the warranty of the anceftor and teftator — V'xdt Littell’s E. L* K. 1 VoU 5Ss-9> § 2> 4» 5, 600, ⅜ 6.</p> <p>The witnesa to the will holding a covenant of war* ranty from the teftator flood indifferent between heir and devisee,</p>

<p>In [cafe, the fum declared for, and not the fum ultimately founddue,gives juiifdiction,</p> <p>" „ the day'of the month from ^lntereft ¡ed°doesnotv¡" tiate.</p> <p>cafstoftatethe amount of coits does not vitú ate; the amount could be rendered certain the taxation of the proper</p> <p>¡ having'¡¡quid” ted the fumsby ths.agreedca;ej no jury was ne-c?iTar</p>

<p>After appearance and anfwer to the merits, it is too late to object to the process for appearance-— .Reading vs. Ford's heirs, an (e 338— {Aar{hall vs. SyratKy ante 341*</p> <p>The examination of the mother of a fcaftard before the juftice to obtain a warrant against the fa-eompetent evU «¡ence^ on the trial.</p> <p>wiAout'objection in the court below, such reading cannot be assigned lor error</p> <p>The county court may take a baud io the Governor conditioned fot the payment, of the money assessed upon the father of a bastard, tq a guar-, ¿tar. appointed by themselves,.</p>

<p>Drunkanncfs is no caufe for avoiding a bond unlefs (he party was drawn in to drink by the party with whom he contracted ; or an unreafonable & uncoJifcientious advantage was taken of his fi-tuation.</p> <p>That a blank paper was lign» ed, and after-wards a reple-vin bond written above, the fignatures, is a matter triable athw 5 and the plea of the defendant.in chan eery to that effect allowed»</p> <p>has a right to corree: any . rtgu^ruy or a. ku¡2 committed by Us officer in the execution of its procefs»</p>

<p>The jurifdiction of a court of chancery attaches. either ⅛ rtm •vely in per* jott am</p> <p>Wncrethe decree is to affect the land directly, as in partition or dower, the jurifdiction of the court is determined by reference to the place where the land lies»</p> <p>P*ur where the decree is for the dung an act which may be done anywhere, as the conveyance of land, or damages in lieu of it, the per-fon of the defendant, wherever he may be ferved with proceís give* juriidiction.</p> <p>That the defendant was do-miciliated in a juriidiction o« ther than that in which he was ferved with procefs, does not matter.</p>

<p>A perfon not party to the suit, and unknown in the process or pleadings ct judgment, ought nor to be permitted to move to quash the Iheriff’s return.</p> <p>An assignment on the covenant, nut noticed by the process or pleadings could not authorise the aflignee to intermeddle with the ex?, cutían.</p>

<p>T° draw*the gene. «■al issue, the fhouhi3nt (hew that fuch leave would conduce to the ends of</p> <p>. After not guilty, and pn msault demesne, of the plea not guilty, tould not auce to thejus-tite of the cafe,</p>

<p>t0 Cue out a writ aná de-dant inthe writ rf,bm”ki<may and without any juft caufe good^caufe of action by the perfonfoimpri-tha'puintffflin the former acsion-</p> <p>«ofts o’/"an* tir.ua/ice cannot affect the judg.</p> <p>exceptions admitted to record, by-ftanders 'ts having been prefented to the the'comt^efu-fed, cannot be taken as true, ed'by affidavits of the truth of ⅛ ftatementsi</p> <p>,A? a*da}‘t relating to mo-tío» for new tri. a!, not made exceptions,win not be regarded, by'th^clerk'in ihe tranfcript.</p> <p>Brown vs, AT Cenrfi,ante26j Martin 41— M'Clean vs. j^Hamsvs^Ma iey^z% — Mar-jhati vs. Red</p> <p>Dartj; moving fwnew trja! ourilt ⅛ Ltfhe relies upon, and the court ftouid hypotheticafca fes to be after» war,i5 5,rov<%</p>

<p>Award that one party ihali pay the cofts of the fuit in court, without ascertaining the amount of the cofts is certain enough.</p> <p>The certainty required is, that it will enable each party to know how the matter is fet-tled so as he Aay perform rtie award, if h°fafto dcfse” F</p> <p>And that ward is final, wblch when performed, ieavcs „„ jusc cause of action bet"cerl the fubjectmatter; arbitrament, not appearing oi cannot be*™*;, W, and exam-lned ⅛ the certificate from arbitrators,</p>

<p>An agreement to emanúpatea Stave specifical» ly decreed.</p> <p>Where defen» dant has reasonable ground to believe the person in fervi-* tude is his slave, only no-sr-inni damages for detention jQiould be given.</p> <p>But where the party held a negro in servitude after the period at which he himself had contia&ed to emancipate him, actual di» mages were át* creed,</p>

<p>Where two fo~ vereigns have iimultaneous poffeifton of a difpwted territory, the conduct and rights of perfons in the difputed territory, during fuch poiTeflion^ ought to be decided according to the laws of the Hate where« of they were ci*» tizens»</p> <p>A citizen of Virginia hold*, ing Haves in Catfijb during the difpote be« tween Virginia and Pennfylva-nia, did neC thereby lofe his property in the Haves*</p>

<p>The Jbop of an artificer, is the place to tender him the materials on which he has eontra&ed to do 3abor in his trade.</p>

<p>See cafe*</p> <p>* The same principle was decided, November 38o%~y<)hnson and bh securities, vs* tbs Commonwealth.</p>

<p>Motion foe continuances</p>

<p>Appearance bail bond mult fce proceeded ©n according to the ftatute.</p> <p>The ftatutory ¡remedy is »-</p>

<p>injomtaQion a£R‘nst several, j'a;^c¡yt judgf ment for feve-ve‘ gl“</p> <p>If jury sever m*y takpe^"ig. ment against íor the bs6t amase'</p>

<p>A bill of exceptions to the opinion of the court, must fhew the bear ing of the ©pinion on the cafe.</p> <p>Confeflions when given in evidence against a party, may be explained by him by ftatements made at the same time, and in fame conversation *. but not by his ftate merits made at another time.</p> <p>Court ihoulci be cautious in receiving evidence taken in a common law suit, and not engrafted into ibe record by bill of exceptions, nor certified by the judges — Vide JVickixffe *vs> ¿2W4I3 • — Brown vs. lM'Connelt ante ¿67*</p>

<p>Plea of ftatute of limitación of one year to a merchant’s ac«= count, how to-be pleaded.</p> <p>afiump-fjt would taks it out of the ilatute, as In other accounts and dealings.</p> <p>What fuffU. cient aiturnpiiE or acknowledgment to take iz out of the ftat-ute.</p> <p>Intereft net allowed onmer. chant’s as-» count?*</p>

<p>A settlement avVtí'e^ar* ^ough/not to be re-exam, -““"be but on grounds of «¡flakcT gI°SS</p>

<p>After appear-?nee and Plea was changed by itis too late to object to the or-<ter changing</p> <p>Venue hid in deciaraticn, and the time therein alleged, aPply to a replication concerning the fame mat-</p> <p>Plea that the “covenant was cbramed^ ^by oat confideration,” is bad,</p> <p>Upon demur-ought to give judgment ac. lUht^of'3 the «fe, and are not confined to the particular plea demurred to,</p> <p>Leave to add áiíueu'on'ofthe «□rt.</p> <p>After difpefi-uT* embamfi? leave was pro-peily denied,</p>

<p>In covenant, propertyTe<>n °a ly certain, no special request " ”“«sary-</p> <p>refufai in cone-n'ed "ot an uncmprisf11</p> <p>Where the tine and place are fixed ánd the covenantor can discharge the covenant without any concurrent act on the part of the obligee, the plea fhould be tender, &c. and not “ ready to pay/»</p>

<p>Mutual, independent covenants cannot be pleaded in bar, the one of the other.,</p>

<p>A bill of re-yew doef n°C -very of «¾⅛« to manen with. fore the decree rendered,</p>

<p>R. fells w. 3 d°ife f°r d°i° lars^of 7which were paid; 35 dollar^ be'"| tcTtáke a^bond ry M. for £. 25, without bond w. pro-jnifed to deli. -</p> <p>d-lf d a fraud in the fate of the horle, refuted tü adiver th= bond to R. but [“'overed/^s ¡ k. in the mean u”e/“,ed. Y’ mentfor¿,»s for not deliver* the bor'd oa</p> <p>fraud practiced byR. on ^as an w. ihouid not ^¿e0rn M the r. having fa-tisfied thejudg. ?lent: ¾311}6 tied toa; dol-¡arsonhisjudg-more,</p> <p>Injunction by ⅛ that fum, and. images and perpetuated astoAereftdue</p>

<p>Demurrer brings whole pleading before the court.</p> <p>The defendant demurred to replication.</p> <p>The replication w.ts bad, and ib was defendant’s plea j ment-</p> <p>Covenant to a ¿ay certain, the obligee.to ¡tba"f_s pTea^hát ¿bli-gee did not fur - ™^,¿arríls’dnd ¿and ™ day, an in ⅛⅛.</p>

<p>On contract dellver mih-Ua certificates t0 a cmain a_ mount, without d^ mener°forQ mance; theva-lue of the cer-anlj at the time of demand Proved’ 18 ‘hc measure ot da» mages.</p>

<p>Want of plaintiffs their chriftian names, cannot “£ned f°r</p> <p>if plaintiff brings up re-certificate^tfíat a Jd, fa. was executed, m-timfofAe'offi" eer at largey he iliall not align does'no’ appear that the/ci./a. lud been ferv-</p> <p>Mgees are entitled to the re. the^’*¿;h°may not furvive.</p> <p>After inqueft of damages taken, the want of a previous award of a writ of enquiry will not vitiate*</p> <p>Judgment cam not go againit Jurvivitig obli-gor and the re-prefentatives of the deceased obligor.</p>

<p>Count, that if '⅛/⅛⅞*™ upoa_ delivery x'he”would pay; the gen-affignmene Iji his covenant, is not sufficient.</p> <p>T^e deciaration ihould aver that M. had nüt up the order.</p> <p>That the spe-; ¡S1C^0° endorsed cannot be taker> advantage ^en*tteir ,udi"</p> <p>The affignment of breach ”he very'word* 0f the covenant j ¡f * covenant* 'be fubftantiaily ai. deged a is fuf*</p>

<p>Where the line of a fuivey was not i» fact marked, or the evidence of where it was actually run has become extinct a right line from corner to corner muii govern.</p> <p>But a lineare-vedi although deviating from a right line, muft be the boundary.</p> <p>A bill inequi. ty lies to efta-blííh a right to ufe a fpring,' and to be quiet id in the enjoyment of it.</p> <p>The defendant having, by his anfwer, claimed the exdufivc right to thji fpring, which claim is found againft him, he ihall pay coils»</p>

<p>Taking bin, ruics> first inftance, 1S</p> <p>where ¡s a prayer f0l. particular ve-i'fe/’ra/*rlJe¡¡g“r ff part;cu-nr relief can-Jjj’j nant may‘rc. sort to the gen-any rcucf warranted by the and tIle</p> <p>Rut where there is no ob-⅛ cannot abandon it and "^nder the general prayer.</p>

<p>Conclufion,of a plea of eel riel record, to the country^ would be bad on fpecial demurrer.</p> <p>Plaintiff in error cannot take advantage of his own mif-pleading below.'</p> <p>Want of militer" is cured by the flatute of jeofails.</p> <p>Nul tiel record” makes an iffue without replication.</p> <p>Although plea of nul tiel record concludes to the country, the trial by the court is proper.</p> <p>Injunction awarded in hill pending might be pleaded in abatement of dtbt on the judgment enjoined, and decree of perpetual injunction might be plea-ed in bar.</p> <p>But the return of the iheriff upon the exe. cuti-in, “ftayed byinjunciien,’* would not be evidence in fup port of fuch. plea.</p> <p>Judgment on a “judgment of another ftate for penalty to be diicharged by (mallei fum, how to be en tercd.”</p> <p>Want of averment of the value of the tobacco in judgment cured by the veriict.</p> <p>Error in ani». terhcutory judg ment corrected by the final judgment, cannot besfligned.</p>

<p>•AlTignor cannot be made responsible for ■more than he represented as due oh the note aiiigned. Faro! evidence ofthefom re-prefented to be due is adrniffi-tie.</p> <p>Coils of suit, wnjuftly prosecuted by as-fignee vs. obli-go*, ought not to be recovered of the oJfigners nor the cofts 0/ a suit in which affignee voluntarily suffered a nonsuit.</p>

<p>An injunctloa bond condition, ed to pay funs notexpreflly re. quired by the ftatufeto be fe-cured is never-thslefs good.</p> <p>A per fon t« whofe ufe a luit is profecuw ted, (fuch ufe appeaiingin the fuit,l may be faid to be a party.</p> <p>Aflignment of breach within the. meaning & effect of the covenant, is fuf-ficient, ahho* not in t he words of the covenant; -^-I'oUard <vsw YeyloryUtite 465</p> <p>Want Of fra* fsrt is cured,after writ of en-quiry,by ftatut© vfjeofails — V\dt Marfcall Red, mti 327,</p>

<p>Defendant cannot demur and plead to fame part of a bill; the plea overrules the demurrer.</p> <p>On demurrer to one pa rt of a bill* anfwec and plea to o~ ther parts, ic was error to dismiss the bill on argument of the demurrer.</p>

<p>That the writ •was directed to the caronería.nd omitted the value of the thing detained, are matters in a-battmenty and muft be taken advantage ot in apt time j it is too late after verdict to make fuch objections.</p> <p>In detinue or debt, if the jury do not find da mages, judgment for the principal fub-jecc, without the incident oí damages, is</p> <p>Faets upon ■which a new trial is moved for ought to be made out before the court act upon the motion} the court fhould not hear it upon an offer to produce affidavits j nor act upon a hy-pothetic cafe.</p> <p>This court will not revife the opinion of the court below upon a motion for a new trial becaulethe verdict wa yagalr.p evidence, un-lefs the whole evidence is certified. .</p> <p>Where the weight of evidence is nearly equipoiíed, a new trial ought not to be granted.</p>

<p>Debt will not lie on a not* to pay 100 dollars in leather, oro-ther property oi its value*</p>

<p>, , ,, Plea that the plaintiff pro-iDifed if J. c. wouid affum£ to pay the ac count filed, the piamnff wouid give the defen-danccredit,and accept the (aid charge^of1 the defendant, and that J. c, did soodTn general demurrer, be-caufe not aver-been in writing6 and no confide-ration laid for tóe affumpfit of On general demurrer, matters of (ubftance oBly are regarded.</p> <p>On feverai counts, plea as “unt’ titled to judgment on the ci-thers.</p> <p>On feveral is-fues on feveral counts, final judgment cannot be give» until the iiTue on each count; is difpofed ofa</p>

<p>An order drawn pa/able out of a particular fund, is not anegotiable bill y nur, if payable on a contingency. that may never happen.</p> <p>It is efTential to a bill of exchange that it involve the perfonal res-ponfibility of the drawer.</p> <p>An order re-queftiog a 1'um of money to be paid to D. 'cs agent for B. out of a particular fund, if fo much ihall come to the hands of A. is not a bill of exchange and will not fupport an action by the fayee against the drawer without reference to the coniideration upon which the ”a”n. will it autho-rise D- t0 in his name,</p>

<p>An account ftated and acknowledged at the foot, under the feal of the debtor,is a fpe-cialty, and cale will not lie on the account.</p> <p>The omiffion to fay the party has affixed his feal, when in fact it is lealed, cannot reduce the writing to a fimple contract.</p> <p>Nor would faying it was fealea, when in fact there was no feal, make the inftrument a fpecialty.</p>

<p>To maintain a wtlt errot to an order es-tabüíhing «/«•- n, it is not ne-⅜ (¡,ew any fpe. cial damage ot Pa'tlcular lnts*</p> <p>The record muft Rate a fentence, made in the county</p> <p>a ferry) the re-“rt* muft ihew ^vas^he 0Wner of the ⅛<1 on one ot .b,oth been given aa squired by fta-*“fcj’en” ba™ 50me formes order,</p>

<p>The manda. “ 15 an ons‘" peltate procefs,</p> <p>The court of appeals, by its conftitution,haa not jurifdictioa to iflue a writ of mandamus«</p>

<p>Demurrer brings the whole of the pleadings into view.</p> <p>in debt on partial*failure of the confider-ation is no plea meaning ofthe ftatute</p> <p>lh 1 Plea tctal faiiur^of the confidera-t,on></p>

<p>A bill drawn °n * ta'j«uiar \ ’negotiable biu awarding tothe cuftomof</p> <p>not charge the drawer as a ne-*nd*bwiuaPnot fer is supperc an aftion a-Iráwer if not paid.</p>

<p>Who ihould be parties Co a bill.</p> <p>If A. enjoins a judgment by B. on the iug-geftion that the debt enjoined was by *grce. rnent to be fet-tled in a bond, whereby A. was bound as 'fecurity for B. to T. on A*s procuring a discount with T. íhe bill ftould *ew that tile or that T was ⅛-¡ñfuchcase.Tl fliouid be made</p> <p>wtlt not ,U5ii=ftW'a complainant to dUmgenu-cusnsss,</p> <p>phinant must act equitably,</p>

<p>opon tiie laic and conveyance of land, the vendor is noZ liable to refund the purchafc money to the vendee, evicted by a claim not within the icope of the warranty.</p>

<p>Where defendants enter into the commora rule and confefs leafe, entry and. oufters actual wfter is not ne-ceflary to be proved by the plaintiff.</p> <p>In ejectment by one tenant in common a-gainft the other, where the title is not difputed, the defendant will not be compelled to confefs cujfer9 or may beper-mitted to do ⅛ fpeeÍ3líy.</p> <p>Plaintiff is not bound to prove his title exactly as laid s ihall recover according to the title he makes cut where he demands more than he has title to.</p> <p>But if he demands lefst he cannot recoves mors than he demands*.</p>

<p>Profdcution5 for “falling to give in a trut Hit of his property fubject to taxation,” is too uncertain 5 and not descriptive of any offence created by the ftatute.,</p>

<p>On ¡flue of Ue^ r“or^» g¡yen t£“ t® to produce the "cord : an<i “ judgment ^Tf failure of ie-</p> <p>t -fl. of cord by the Jury> >s errone-</p> <p>not gi~ ven, o» rever-ía!> tl!e Pro:e-tutor not beinrj ma<lc party the record,</p>

<p>An wjitnui c<¡m£ut*jfent is noc ground of action againft an infant) although for ne-cefTaries.</p> <p>"Whether tho articles furniih-ed an infant are íuch as w«rs necefTary and Suitable to his condición, is matter of law to be judged by the court.</p> <p>The reafona-ble price is matter of fact to be left to the jury.</p> <p>Money, a horfe, faddle and bridle ate not ne-ceffaries for which an infant xs bound to pay.</p> <p>The note of zninfant has no obligatory force</p> <p>And in an action on the note it is neceíTry to fnewthat the articles furniih. ed, afithercw/;-deration of the cote, were ne-ceffaries.</p>

<p>C. entrufts a the ha'ves; ¡n the abfence of s. and without privity, l. ub-tains the warrant and affigns had full knowledge of of6 r cates the warrant m his own t^inTthe grants —feiisaparmf the land to pur-notice” Tnd°to íome he con*eys the legal . *’r.fl,re notice to them ot C’s, claim 5 ether purcha-obtained*1 the leSaf title.</p> <p>l. r.’s. and the purchafer*</p> <p>s. being guiity 01 n“ nfegll7 ¡s not refp0n4-ble to C,</p> <p>,-ers the legal title with, hoidagainftc'1</p> <p>Thofe who had not obtain, tice, mua be poftponed in e-w.,ty t0. c — Accord, Curre™ and Ca. vs</p> <p>r. whorecei. vetl the forged p®dgn⅛* obtained thereby, made first Óafe°of his ⅛"1 biiuy to resp°nd ⅛ dama-abje,</p>

<p>Covenant to return a horfe as foon as defendant returned from V, no fpiáal requeft neceffary* but general breach, ** littt Jep'tus rtf-qui/itm” is fuf-fic;ent.</p> <p>To execute writ of Inquiry and take judgment whiift order of fubmíf* iron to arbitrators is ftanding. on the docket undtfpofed oi9 h erroneous.</p>

<p>Objection to of6 takin^bin fra * "mnftffo not moved in sourt belowaf-there, will not te regarded in the appellate</p> <p>General rule, that irreguiari-inTht "have been corrected by court be-Jow, but not moved tnece^ after an appearance, or fcndant^ftood out in contempt of pro-will noTbe're* garded in court above</p> <p>tmUttl n^fhe party appears, and does not cauibr’ (lands upon the order, talcing the bill for confeffed.</p> <p>Mortgages are conttdered in equity only as fecunties for to^executorsds adminiftrators, pad not to the feeir — are as-O-evidences Sgnable at ‘⅛⅛"' "</p> <p>The execu-of an as* oi»*"» mortgage, m|£ht be Pro* ” the^triu • ifread without objection w the t“““ wanetü*f proof of the execution of ^¡i^fbeTe-garded on ap-</p> <p>t-be giyen™^® the mortgago* t0 W theb fomclofure, is a fubject of found dlf"e“8n> «ji-c¡rcumftances * of each parti, cular cafe-</p> <p>not t00 ⅛0⅜. under the clrcumftances.</p> <p>preT¡0US notice of faie by ad-vertifement, as B0{ ürneafona-bly Ihort.</p> <p>r“ I^Ttoo fhort.**</p> <p>Time ani p,ace of íaie» fhe^disemion of the com.,</p>

<p>In the courfe of adminiftration, a debt due a citizen by fpt• ciahy, b to be pr?.erred to a iinviie contract with the commonwealth-</p>

<p>A mandarme to compel the regiftration of a furvey3purporC-ing to be made on a Virginia rand office warrant, involves the rights and Interefis of the commonwealth fo as toautho». rife an appeal to be taken by the attorney general under the ilaiute.</p> <p>A furvey not certified by the deputy whilffi in office, nsg counteríi^ned by hís principal furveyor whilft ín office, ought not to he received by the register.</p>

<p>The tenant is bound to pay the demited premifes are inevhabfe ca^ andean have no abate, ment for fuch lefs otheiwife cxpredly ftipu-</p> <p>the hirer of a slave is not entitled to abatement foe iickness, or physician's bills9 so ftlpu'</p> <p>slave, and to employ a phy-fician if neces-saiy j a palpable neglect ⅛ this respect* would render the hirer res* The hirer of aslave isbound a°te^¡yon^rotp¡^ health of the ponfibie t® the owae/*</p>

<p>Refponfibility where Aereas no fpeciai agree ment, and the negotiable "if cording to the law merchant.</p> <p>.Due diligence JS a queftion of jaw tothe court</p> <p>The facts on •en'ce^r'neg'u gence depend, are for the jury *°</p> <p>to «fe every com. puifory procefs of the law a-gainft the debt- or; and all the incidental re-pef payment"" except where obligor is out weal*C°mlIand’ inch abfence was not con-affinor and af-fignee.</p> <p>To omit to vAere'ba’i was of right deman. dable, in cafs be'recurned"ml eft inventus, would be negli-</p> <p>bail was given, the affignee muft th°C balido pon »» eft invmtus againft theprin cipa!.</p> <p>Due diligence by fuit having failed to coerce payment of the inilrument af-Signed, a contract implied9 to refund the conftderation received for the alignment, is that uponwhich the afhgnor is reiponfible to the afiignee*</p>

<p>By the death, of the party> the power oí his attorney is gone.</p> <p>A revivor of the suit by it againft the executors of the decedents, by a:tort}ies, under-ftood to be by the attornies of the executors, and not by the attornies of th$ (jpceafed?</p> <p>A joint a£l!on again ft furvu ving obligor, & the reprefen - tative of a de. ceafed obligor, cannot be main, gained.</p> <p>The furvivor, and the repre. fentative of the deceafed, on joint obligation anay be charged in feparate actions, pending at fame time, (by ftatute.)</p> <p>Judgment vsi executors de ia nh propriisy is erroneous.</p>

<p>‘ a debtor fur-rendered after judgment by to ^ tl^eCnpri(on rules before the time for char-fxecutioT is out.</p> <p>^Jpot^bond gi-ruies/'thr'fe-curities are liable, if debta* “caPes before for charging him in execu-</p> <p>o{ ju(lgmeñt upon which the . cw” ¡^* “ c“^ meafure of di-</p> <p>cred-t ;s not ‘[ouad to prove any ⅛0, threaten! ed the debtor c°0peut hl!rl£nt0 menCj ¡snoex" cuse forescape,</p>

<p>Attachment is the Pr°Plr mode or com-pelting the payment of tinuance* C9n"</p> <p>duplicity in pleadM-g, must vantage, of by ipeciai demur-Ku</p> <p>The court ought not to permit a party affi^avit^ for continuance, after ic is adjudged infuifi-cient, much lefs to fupply the defect viva</p> <p>Affidavit not setting forth, the matter expected to be proved by ab-fent witnefs 5 nor that he had been ferved with procefs9 nor whether he was refident widiin or without the ftate9 nor whether he would probably be prefenc at the next terms is infufficienu to obtain a continúanos#</p>

<p>Injunction ament at law, and to have an plahwnt’^ di” tributive ftare of the eftate, *1<¾⅛° furrio much on the judgment at £0¾⅛venered'it for two bonds executed by de. by”complainant.</p> <p>Ac““Btb ken and credited on judgment at</p> <p>f bondsnot allow cd, becaufe not produced, nor accountedVo™ nor obligees M*tdofecureef° ecutors againii being compel-Jed to pay thofe eutftanding bonds.</p> <p>The dlftribu-tive (hare of complainant to Hop intereft on the judgment at law from the tutors were bound to have made dtftnbu-</p> <p>But no interefb to be paid by executors to the complainant ora the furplus of hís ihare, because the complainant has been the caufe why diftribution could not; be made.</p> <p>Decree without prejudice to, bonds fet up by complainant but not produced,</p>

<p>C»fe will not lie on the record of a judg. mentof a fister tendered after aPPearfence to the ac. tion — it ihould bedeiti</p>

<p>Covenant to convey, as foon as an infant came of age, or iooner, if it could be done agreeable to fcw, the inte-reft of one of ihe legatees*</p> <p>Before infant came of full age, the cover nantee applied to the county court, and had coromiflionwa appointed to divide the land, and ihows this proceeding a* enabling defendant to convey.</p> <p>Application to county court be. ing irregular and unauthorif-ed, does not support the breach of covenant fuppofed*'</p> <p>Obfervations made by c*>un-fel to the court, that the witnef-fes were material, not íuí5-cient evidence of their materiality on motion for continuance.</p> <p>Reliance upon the clerk to renew. fubpanas for witnefles, according to his general cuftom, without any me morandum given him to issue subpanas^ is not due diligence to prepare for trial.</p> <p>If plaintiff will not rely upon the ⅛1„ plied confession of his caufe of action upon executing a writ of enquiry, and offers a covenant materially, variant from that declared on, the couj£ fhould not permit it to ⅛⅝ evidence.</p>

<p>Dea th of principal after ca. fa. returned not f»und, does not discharge bail.</p> <p>Courts of equity do not interfere to deprive one of a legal advantage tjnlefs they are tfirft fatisfied of the complainant’s equity ; nor will they ietafidea judgment at law to ■let in a defence againft con-Cbience.</p>

<p>Relief granted tor ^gainft^á jndgment at iaw npon difeo-v‘/1 °f , '^,'N tiefs to a fettle-trier* made by ?he inteihte in ins lifetime.</p>

<p>Obligation to deliver horfes in Lexington^ evidence of a tender at obli-gees houfe in the country not ad-miilible, under ieave to give fpecial matter in evidence :</p> <p>A fraudulent attempt to im-pofe her íes on obligee, by carrying a partial valuer, who rated the horfes at exorbitant prices ; and when obligee rerufed them at thofe prices, were carried away bv obligor, does not amount to tender,</p> <p>A memorandum torn horn the foot of the obligation, by the obligee, with the silent of the obligor, does not deftroy the obligation.</p> <p>Where the verdict is against the ’[velgbt of evidence, a new trial ought to he granted.</p>

<p>The covenant “ertw^lc¿adpero¡¡ not part of the record without</p> <p>to pay money, and if not punctu-negro man with, plaintiff, until,</p> <p>that Iie wasreadytode. 1,yt" a’ree¿withde-fendact t® sc? biehire'&c^ij lieu oFthe'né-gró,.no plea to</p> <p>pleads a Oum pie», pUintirF ¡¡atent^0</p> <p>The regularity of judgtáeut court, without idtsfrfmg of the ■**!?»? -?“* ]*e fiíjame, and not by the ¡ha. of a pisa.</p>

Upon a judgment of the county court, for county levy, including depositum. Upon a judgment for militia fines. Judgment for county levy, and depositum. For militia fines.

<p>Scire facias a - gainft bail.</p> <p>Bail pleaded two pleas, and before the next term died.</p> <p>Scire facias vs. adm’x. of bail.</p> <p>Under the fta-tutes of Kentucky, judgment by default againft adm’x. aC the term to which fei fa. was returned, ⅛ regular*</p> <p>Jury was not necefiary on judgment by de fault.</p> <p>To fwear ju* ry to try iflue after judgment by default, is not fatal error.</p> <p>Death of grin, eipal after tefie of fci. fa. and before return, was not a good plea.</p> <p>Cofts againft adm’r. de.bonis dead: jjj (¿fc.fi non, de bonis propriis.</p>

<p>If manfiom houfe, orchard, garden or cur-tilage would be-overflowed, or health of neighborhood annoyed, courC cannot grant leave to build a mill*.</p> <p>If the neigh* borbood is abundantly fup-plied with mills, that 2 public road is likely to be affected, or the only fpring of an individual overflowed, are good reafons for refufwg leave-</p> <p>Thé court cannot impose the cenditieu that the dam fliaJl be lowered if the road is obftru£ted,or that the owner of the mill ftall build a bridge over the river.</p> <p>Twenty years pofleiTion bars right of entry, &c. and gives right to repel every wrongful invalion of the poiTeffion.</p>

<p>Upon cove-iiant that negro was found oa the fale, evidence offered by tovenanttr that covenanteg knew the negro was unfound at the time of fale and warranty, not admifíible»</p>

<p>On complaint well founded when made,but fatisfied by defendant pending fuit, the «ompl’c. fhall kave his coils*</p>

<p>The defendant cannot be permitted to set up a farol condition not contained in the covenant, and not pretended to have Been omitted by fraud or miftake.</p> <p>Inadequacy of price alone, not sufficient, to deny specific execution, unless the inadequacy is such as to carry evidence of fraud.</p> <p>Vendor having refwfed purchafe money when tendered, compelled to accept it without interest»</p>

<p>Upon contract for fale of an cítate at ftipu-lated price,neither party can compel performance in e-yjuity, until he Isas on his part performed, or tendered to p£r-</p> <p>The vendor wBi not be decreed ro convey afubpurcha-f^r, until vendor is paid the purckajei unlefs he has waived his lien-Fraud prac ticed to induce the fubpurcha-Jfer to make the contract with Tendee, would he a forfeiture of the lien.</p> <p>The bare deli. very of poiTes-fion to the fob-P“rcl,afer his contract, is not a waiver of his lien by *⅜ vendor,</p>

<p>Slanderous words are to be taken ¡n theic obvious mean-*n6^ an<1</p> <p>kave eveJ ry reason to believe” he ,,j believe’’ he burnt said barn> are ac*-</p>

<p>Abfenceofthe debtor from the circuit is no: fufficient to entitle the as-signee to re-courfe againft the aflignor.</p> <p>Diligence by fuit cannot be difpenfed with by averring the debtor was in-iolvent.</p> <p>The liability of the affignoc to the aiiignee is to refund the confederation received for the alignment.</p> <p>Where the prorrhie or greement is not for money, but for doing Come collateral act, indebitaius af-fumpfit will not lie, but fecial aflumpüt.</p>

<p>No writ of error or appeal lies to an order punifhmg for a contempt.</p>

<p>If plaintiff tor,3and cbtfd'e-fendant pleads to thr action, he '“T1 alrei" the right oí the piainciff to fue as executor. demand (other than the writ) ts eeceffary to maintain the action.</p> <p>Slaves pafs to admimftrators'1 ana they may maintain deti-sue for Haves.</p>

<p>For rent re-ferved in iron, the landlord may diftxain, but cannot fell the goods dis-trained.</p> <p>By felling the goods he makes himfelf a tres-paííer ab hiño.</p>

<p>Motion to 5uaí*L faie an<1</p> <p>The levy of an execudonon hun™ ^</p> <p>But if not le. vied on or before aiT 'after" ceedings 0/the fteriff by color unlawful"1 *te</p>

<p>Parol evidence a ,rsJ* n?uft an¿ faceto-ry, otherwife ^ dce°“^ .Wl11 *ot ecreeit’</p>

<p>A count be-Tndtbimm as" iumpfic, but concluding as a quantum meruu.</p> <p>fition was read on a former tri. fiéient0treafon for overruling an objection to</p> <p>art ex eepts tothead-jniflibiiity of e-muratothefame evidence, the demurrer fup-plants the bill of exceptions.</p> <p>Upon demurrer to evidence, the court will take every fact as admitted, which a jury couid have found, by fair and rational deduction «rom the whole of the evidence.</p> <p>It is no caufe of demurrer to adtniiTible evidence, that it is not directly concluíive of the fact.</p> <p>Rational infe-reaces from one fact may con. the existence of atber facts.</p>

<p>Upsn plea of non affumpfiC, evidence that the promife was for money won at gaming prohibited by the ftatute, may be given.</p>

<p>Partus jcqui» tur •ventrem. A female flave regiftered in Pennfyivania, and iherefore a fiave for life* and brought to Kentucky with out her afient, continues a</p> <p>Her ¡flue bona in Kentucky are Haves*</p> <p>If they had been born ira Pennfyivania, whereby an incipient right to freedom under the laws of that fíate for the gradual abolition of flavery had attached, the removal to Ky. would not have defeated that right.</p>

<p>Want of pro-fai may be ia-demurrer.</p> <p>_ Yhat the deed di.ptufe 6 with the ueceiTny-of declaring with 8</p> <p>date of the deed is ma-tcnal>and ^”111 -11</p> <p>if deed lt*n n° da'f; or an mpotnble dare, the day of de~ livery muí br pleaded.</p> <p>Kote. — Bi^s, Ch. J* refigned at the end of this term.</p>