Volume 41 — Kentucky Reports

<p>Chancery.</p> <p>Writs of error to the Barren Circuit.</p> <p>Case 1.</p>

<p>Chancery.</p> <p>Error to the Todd Circuit.</p> <p>quss g</p>

<p> Parol contracts for .land. Vendor and vendee. </p> <p>The ease state ,.</p> <p>'Decree of the Circuit Court.</p> <p>Where a bill for a rescission by vendee distinctly charges a promise by vendor to procure a conveyance from another holding the legal title, which is evasively denied, it will be taken to be true, and if a conveyance is not procured, when demanded, the contract will be rescinded.</p> <p>A parol promise to convey land, or to procure another to convey, is equally embraced by the statute of frauds and cannot be enforced.-</p> <p>The Chancello* will not, at the instance of a vendee, dissolve a contract for land merely on the ground that it is parol; provided the vendor, not having been guilty of shuffling, prevarication, or delay, tenders a compliance with its te*m's before the hearing. If vendor do not comply in such time, the contract should be rescinded.</p>

<p>Ejectment.</p> <p>Case 4.</p> <p>Error to the Shelby Circuit.</p>

<p>Chancery.</p> <p>Error to the Franklin Circuit.</p> <p>Case 5.</p>

<p> Execution. Exempted property. </p> <p>Case stated and judgment of Circuit Court,</p> <p>A deft in execution, whoseproperty is levied on, eannotprosecute a writ of replevin, although the property levied on may be ex-emptbylaw from sale under execution.</p>

<p>Replevin.</p> <p>Error to the Wayne Circuit.</p> <p> Case 1. </p>

<p>Ejectment.</p> <p>_ Case 8,</p> <p>Appeal from, tiie Hopkins Circuit.</p>

<p>Ejectment.</p> <p>Error to tiijs Franklin Circuit.</p> <p>Case 9.</p>

<p>Appeal,</p> <p>Error to the Marion Circuit.</p> <p>Cí! 1 (1 iu*</p>

<p> Parties in Chancery. Assignor. </p> <p>The assignor of bond or note, the payment of which is secured by mortgage, should be made parties to a suit by the assignee to foreclose the mortgage.</p>

<p>Case.</p> <p>Case 12.</p> <p>Error to the Fayette Circuit.</p>

<p>Case.</p> <p>Case 13.</p> <p>Error to the Franklin Circuit.</p>

<p> Abatement. Bonds for costs. </p> <p>The case stated.</p> <p>Lessors of plaintiff, in ejectment, may be required to give bond with security for costs.</p> <p>After the defendant has appeared and pleaded to the merits, or appears and aslis leave to be, and is admitted to defend upon the common terms of defending upon the merits, he should not be allowed to plead the laolc of bond for costs, and •thereby violate, his agreement to rely on title only.</p> <p>It a party in ejectment should desire to plead in abatement, he should confess the lease, entry and ouster, with the reservation of such right, & that he should be permitted even, to do that, is not decided.</p>

<p>Debt.</p> <p>Error to the Clarke Circuit.</p> <p>Case 15.</p>

<p>Case.</p> <p>Error to the Bourbon Circuit.</p> <p>Case 1G.</p>

<p> Vendor andvendee. Allegation and proof. Proconfesso. </p> <p>Allegations oí first bill and decree.</p> <p>Allegations of second bill and decree thereon.</p> <p>A vendee ofland having accepted a deed and retained the possession, cannot enjoinajudgment for the purchase money whilstthe vendor is solvent —But if vendee beevictedhyparamount title and vendorinsolvent, the Chancellor will perpetually enjoinsueh judgment, vendee being withoutrelief at law, and a decree on a former bill between the same parties for the same object, filed before the equity relied on in the last bill existed, will be no bar to the second suit.</p> <p>Answer to bill, not admitting a material allegation, (insolvency) Will not be taken as a denial of ¡the same allegation, made two years after-wards in abill in it second suit, incorporating the record of first suit.</p> <p>The assignee of a note, the consideration of which has failed, though subse• quently to the assignment, will not be permitted to coerce it any more than the obligee.</p>

<p>Replevin.</p> <p>Error to the Pendleton Circuit.</p> <p>Case 18.</p>

<p> Chancery. Bonds of indemnity. </p> <p>In a proceeding in chancery under the statute of 1827 for the sale of the lands of a non-resident, the execution of a bond of indemnity such as required by the statute, at a term subsequent to that at which the decree is rendered, will not cure the error committed by the court in renderingthe decree before the execution of ..the bond, it is not a clerical inisprisi#n.</p>

<p> Champerty. Conveyances. </p> <p>The occasional cutting of fuel on an uninclosed piece of land, not connected by title or boundary with any actual improvement,residence or other ostensible occupancy, is not alone sufficient to render a conveyance thereof champertous under the statute of 1824, especially where there is no proof that the vendee hadfany knowledge that the land was-ever used adversely.</p>

<p> Bonds for cost. Abatement. </p> <p>Non-resident of'errofprosecuí Riaeiionofejecti wient, required ident plaintiff, to costs^f they fail te d°pieadedmm abatement of the wn o eiror.</p> <p>In the circuit court, when leave is aslted to be permitted to defend, that court may, in the exercise of _ a sound judicial discretion, refusetopermitthe person thus admitted to plead in abatement if leser of plaintiff bond for costs; where^118lessor prosecutes a writ of error he shouldgive such bond before suing out the writ.</p>

<p> Master in Chancery. Commissioner’s report. </p> <p>Commissioners appoin ted by the chancellor to ascertain and report facts for his information, after having done so made then-report, has no authority thereafter to take other proof and make another report, their power ceased on mahinglheii first report.</p> <p>But if bysuehreport new facts are brought to light whichprobably would produce a different resultifthe proof thereof was properly taken and favorable to infants, opportunity should be afforded for its regularproduction, as well as any other which might come to light.</p>

<p> Motions. Jurisdiction. Damages. </p> <p>The case stated and judgment of the Circuit Court.</p> <p>The per eentage for which an officer is liable for failing to return an execution is to be calculated on the amount dueonthe execution at the date when the liability is incurred.</p> <p>The remedy for failure to return several executions is several and exclusive, two or more liabilities cannot he consolidated to give the Circuit Court jurisdiction.</p> <p>The statute of 1835 (Ses. Acts j^ely repeals^! Senomeiag'penallies against constables for failing to return justíce^of the Peaceaionehave original junsdio tion in all such ¿ppealtothe Cir^“eTe^the^a“°imt exceeds</p>

<p> Joint Tenants. Husband and wife. Policies of Insurance. </p> <p>The case stated,</p> <p>Facts agreed in the Circuit Ct.</p> <p>jolint tenant with others and who bom alive to the sueif aninsnrabieinterestinthe on. nSS 1 eie Husband whose wife has title to</p> <p>in such case the tfepouVis'&rfeited, has a right to recover to the extentoftheloss, amountnamedin .¡be policy.</p> <p>Tbe right of re-case'Snot afeeowiieLsÜ'eañerí tt^Hntereet fc? «meaau differentoffice, though it may be provided in the first policy that it shall be void in case any other insurance is effected on the same property without notice— such provision only applies to a second insurance by the same part owner, and not other part owners.</p> <p>Parol proof is fcompetent to explain the .extent oftheinterest intended tobe insured by a policy ivhen it does not contradict the policy/</p>

<p>Ejectment.</p> <p>Error to the Campbell Circuit.</p> <p>Case 24.</p>

<p> Bastardij. </p> <p>$100 per year for 17 years may-no t be too large a sum to adjudge the father of a bastard child to pay, and in the absence of all proof, as to the circumstances of the putative father and mother, this Court will notpresume that the County Court has abused Us discretion.</p>

<p>Chancery.</p> <p>Case 27.</p> <p>Error to the Muhlenburg Circuit.</p>

<p> Bar in equity. Injunctions. </p> <p>Case stated and the decree of the Cirouit Cowrt’</p> <p>If an. injunction enjoining ajudgjnent at law, on the ground of nsnry, be properly dissolved., the ground of usury cannot be legitimately relied on ill a snitin chancery, brought to setup the lost injunction bond, but if the injunction be discharged because the comp’lt. refused to execute a new injunction bond, it constitutes no bar to the adm’r. and surety of comp’lt.. in a now bill setting up usury in the original transaction.</p> <p>Although an injunction may have been improvidently gran ted, yet if it be in fact pending when a final decree is made in the cause, and comp’lt. show himself entitled to the relief prayed for, it will be proper to make the injunction perpetual, as far as comp’It. may show himself entitled to relief.</p>

<p> Mortgagor and mortgagee. Practice in chancery. </p> <p>The ease stated.</p> <p>Equity will require mortgagee to account for the value of the hire of slaves ■whilst in his possession, and the amountforwhich they were hired to others by him, up to the render* ing of the final decree-</p> <p>On bill filed by mortagor to redeem, If a balance be found by the chancellor still remaining due, it is crror’to decree a sale forthwith of the mortgaged property; dayshould be given to mortgagor to malee payment, and in default of paymentin a reasonable time, to be prescribed by the chancellor, then to dismiss his bill absolutely, or a sale if either party desire it.</p>

<p> Ejectment. Mortgagor and mortgagee. </p> <p>A purchaser under execution, oí amortgagor’s interest in land, having received a deed, may maintain ejectment against the mortgagor.</p> <p>The possession of the mortgagor is'prima facie evidence of the right of possession. This prima facia right passes to the purchaser on sale & his procuringadeed.</p> <p>Nor will thependency of a suit to foreclose the mortgage affect in any manner, the purchaser’s interest, or the interest of mortgagee in ease of foreclosure and sale.</p>

<p> Limitation. Surplus land. • </p> <p>Case staled and decree of the Circuit Court.</p> <p>The recovery for surplus landconveyed would bo barred by a lapse of five years; a court of equity will apply the same limitation whenever the mistake hadbeen or ought to have been discovered more than five years before suit brought.</p> <p>Where the proof warrants the presumplon that a vendor knew there was a surplus in a tract of land conveyed or as a reasonably vigilant man ought to have known it, more than five years before he files his bill for compensation for the surplus, chancery will not relieve.</p>

<p>Debt.</p> <p>■Case 32.</p> <p>u sSe'to the Green Circuit.</p>

<p>Chancery.</p> <p>Error to the Franklin Circuit.</p> <p>Case 33.</p>

<p>Ciianoery.</p> <p>Error to the Rockcastle Circuit Court.</p> <p>Case 34.</p>

<p> Duress. Undue influence. </p> <p>Though the testator be 86 years old, if he dictate his will, and the provisions manifestintelligenco, sound moral sentiment, & be not procured by duress or other un,due influence, it will be sustained.</p>

<p>Chancery,</p> <p>Case 36,</p> <p>Error to the Adair Circuit.</p>

<p> Will. Mental incapacity. Codicil. </p> <p>Though a testayears of age, and ergiesgreaUyiml ^^raUonalinaii his acts and con-superintend with prudent caie^n hís . business, consisting of domestie affairs, tracfsIOfo’r Mre" and barter and saleandpui chase of land & slaves, he has capacity to make a valid will.</p> <p>The offering for proof of a will, which is admitted to record without ' offering ■a codicil thereto attached, at the same time, does not estop those interested from thereafter offering the codicil tor gproof likewise.</p>

<p> Assignment. Obligor and obligee. </p> <p>The case stated.</p> <p>A partial assignment of a note does notpass the legal title or right of action to the assignee, but it remains with the original payee—the obligee, after a partial assignment may, by using terms sufficiently comprehensive, transfer the right of action to another; yet if the assignment purport to be of the remainder, no legal 'right of action passes by such assignment.</p> <p>The assignment of the balance of á noto (a -credit being endorsed thereon) transfers the legal right to sue.</p>

<p> Sales of Land. Executions. </p> <p>The cuse stated.</p> <p>A sale of land under execution orreplevin bond, is not illegal or void, though the execution may be for a greater sum than was really due on the judgment. The sheriff’s duty was to make a sale sufficient to sgtisfy the execution unless the bond and execution had been quashed.</p>

<p> Principal and surety. Substitution. </p> <p>The case stated.</p> <p>A surety advancing the amount of a judgments theplaintiff may stipulate for substitution, and for the control of the judgment and execution against Ms principal and a Court of law will protect Mm therein.</p> <p>A joint obligor may properly advance theamount of ajudgment vs himself and another, and contract with the creditor for the control of the execution, and will be .therein protected by a Court of law, until he is reimbursedhis proportion, in opposition to the wish of the creditor.</p>

<p> Trustees and trusts. Executors. Devisees. </p> <p>The case stated.</p> <p>An executor may properly apply the funds of the testator to remove incumbrances created by the testator, in his lifetime, on lands specifically devised, but may not purchase such incumbrance for his ownbenefit— and though in such ease, the executor make the purchase with his own funds,yetaOourt of equity will declare it a trust, and for the benefit of the devisee.</p> <p>An executor buytrance111 ereawd by the testator, wards speeificaiwitheTifsd’ own (“ids’refmbms" ing himself out theUie "testatorf is not property ohargable afterwards, with fraud on subsequent creditors, on conveying such purchased incumbrance to the devisees of the testator.</p>

<p> Consignor and consignee. Costs. </p> <p>T]ie case stated.</p> <p>The holder of an •order, given by-consignor -on ■consignee, of bagging, &c. for part of the proceeds of the sale thereof, is not authorized to control the sale or to sue for not selling, but only to present the order and receive the proceeds.</p> <p>Costs are properly adjudged in behalf of a party who has good cause to sue at the time he does sue, up to the filing of answer, though such party is ultimately unsuccessful by the lapse of time before filing answer, • and the happening of other facts not then existing.</p>

<p> Fraud. Fraudulent conveyance. Purchaser. </p> <p>The case stated*</p> <p>When a debtor ?EeioS trustees P°wer of appointment, reserving a life es-b^made ofthe o?Eithoutd impeaching the no°thingy passes estate?1 the</p> <p>The sale of a life by1EdebtEin (thougEey?u3i £°nveyance may creditors) Is not Emore EE llfe estate.</p> <p>A tova fide purchaser ofproper'ty, fraudulently conveyed, is entitled to protection against a defrauded creditor, who can pursue the property only in the hands of the fraudulent party or his alienees, without consideration or with notice of the fraud.</p>

<p>Ejectment.</p> <p>Error to the Madison Circuit.</p> <p>Case 45.</p>

<p>Chancery.</p> <p>Error to the Bourbon Circuit.</p> <p>Case 46.</p>

<p> Purchaser. Trusts and trustee. Parol proof. </p> <p>In the absence of either allegation or proof of fraud,parolproof cannot be admitted for the purpose of resistmga specific execution of a contract to .convey land.</p> <p>A purchaser who buys with full knowledge of a previous purchase by another, holds the legal title in trust for the first purchaser, and will be required by the Chancellor to surrender it.</p>

<p>Debt.</p> <p>Appeal from the Jefferson Circuit.</p> <p>Case 48.</p>

<p>Covenant.</p> <p>Error to the Jefferson Circuit.</p> <p>Case 49.</p>

<p>Replevin.</p> <p>Error to the Jefferson Circuit.</p> <p>Case 50.</p>

<p> Fraud. Failure of consideration. </p> <p>The case stated.</p> <p>One who sells a bill of exchange, without any fraud, and who is neither drawer or endorser, is not responsible, except for failure of consideration arising from the non-acceptance, or non-payment, arising from insolvency of the drawee, and no recovery can be had against such an one 'without allegation and proof to that effect.</p>

<p>Chancery.</p> <p>Appear prom the Louisvirre Chancery Court.</p> <p>Case 52.</p>

<p>Covenant.</p> <p>Case 53.</p> <p>Appeal prom the Bracken Circuit.</p>

<p>Replevin.</p> <p>Error to the Fleming CrRourT.</p> <p>Case 54.</p>

<p>Case.</p> <p>Error to the Jefferson Circuit.</p> <p>Case 55.</p>

<p> Covenant. </p> <p>Case 66.</p> <p>Appeal from the Bath Circuit.</p>

<p> Corporation of Louisville. Power of taxation. </p> <p>The ease stated.</p> <p>Facts argued in the Circuit Court.</p> <p>The ordinances of the city.</p> <p>Trustees oí Louisville to appoint measurers of coal, lime and ■wood, &e. same power after-wards conferred on Mayor and Council.</p> <p>The Mayor and Council of Louisville have no power to levy a tax on ’coal, &e. landed at the wharf, for revenue purposes, but .only so far as necessary to defray charges of inspection and measurement, when required.</p> <p>The generalpower granted to Louisville by chaiter does not confer on the Mayor and Council the power to lay a specific tax on coal, &c. or the vendorthereof, for revenue purposes.</p> <p>M. general grant of power to tax personal estate, does not em-&c. bought for Louisvn^e —Nor is coal, &c. in a boat at the wharf subject to cept^toCpay for admeasurement,</p>

<p>Chancery.</p> <p>Case 58.</p> <p>Appeal from the Fayette Circuit,</p>

<p>Chancery</p> <p>Error to the Fleming Circuit.</p> <p>Case 58.</p>

<p>Detinue.</p> <p>Appeal from the Adair Circuit.</p> <p>Case 59.</p>

<p>Assumpsit.</p> <p>Error to the Franklin Circuit.</p> <p>Case 60.</p>

<p> Trusts and Trustees. Construction. Decrees. Chancery. </p> <p>The ease stated,</p> <p>Deed of trust.</p> <p>Allegations of the bill.</p> <p>The defence set up in the answer.</p> <p>The decree of the Chancellor.</p> <p>Pet’n. for opening the cause.</p> <p>And grounds relied on for that object.</p> <p>Petition of defendant overruled and amended anstverand cross hilland affidavits offered to be filed, and rejected by the Chancellor.</p> <p>Decree of the Chancellor.</p> <p>Questions presented for revision by the record.</p> <p>In the construction of writings, the intention of the parties is the governing principle, and when the terms used are ambiguous, it is competent to look into the state and condition of the parties, the probable motives and objects at the time of making it, and the cotemporaneous exposition of the parties, not however, doing violence to the terms of the instrument.</p> <p>A claim in a deed of trust by an unmarried woman, requiring the trustee, if.she desire it, to vest in her absolutely the trust property, in case she marry and her husband die, and also allowing the trustee“tolay outso much of her money as will enable her to procure the necessary and comfortable means of housekeeping,” may extend to the whole estate in money conveyed.</p> <p>And such a clause is not controlledin this respect, by a clause requiring; the trustee, in case of the death of the mother, "to hold the estate for the use of children," and does not require that the whole principal, shallbe withheld from the use of the mother, the maker of the deed.</p> <p>The trae ^conLTa oftrastis® thereof®iw^er comfortable subsistence, may draw_ from the asTn^emstthereof, and the trascharged by_ the heir mth eitter"</p> <p>Money to be useful raust b® expended in something to be used, and so given, implies its expenditure.</p> <p>Courts of equity-look not to the form, but to the substance of things, not to the manner but to the end to be accomplished.</p> <p>A court of chancery should not give a decree beyond the claims setup and claimed by complainant’s bill, and sustained by proof.</p> <p>The Chancellor should not wrest from the hands of a trustee, a trust confided to him, and place it in the hands of another, unless for fraud, wanton negligence of trust duties, or wilful breach of trust.</p>

<p>Chancery</p> <p>Error to the Louisville Chancery Court.</p> <p>Case 62.</p>

<p> Sale under execution. Mortgagor and Mortgagee. Fraud. </p> <p>The ease stated.</p> <p>By the purchase of property by the plaintiff’s attorney under execution, and the execution ordered to be returned satisfied; the judgment is discharged, and any want of authority is to be adjusted between plaintiff, his attorney, and sbsr-</p> <p>No relief granted against a defendant without a prayer for it.</p> <p>A defendant in execution being morigagorof real estate, procuring plaintiff’s attorney or agent to buy it, under promise to remove the incumbrance, and failing to do so, afterwards acquiring the legal title, will be compelled by the Chancellor to release it to such purchaser.</p> <p>And if he have kept the possession, to surrender it and account for the rents, (after two years from the date of the sale, within which time it was redeemable under thestat. of 1821) and account also for waste, deducting from the rents and waste, if any, the value of lasting and valuable improvements put on the property.</p>

<p> Vendor and vendee. Specific performance. Merger. Estoppel. </p> <p>The allegations of the bill.</p> <p>The substance of the answer.</p> <p>Facts appearing in tiie record.</p> <p>A purchaser of a bond for title to land,hasno right to make a new contractwith the vendor and pay more than was dye from the original vendee, and charge the assignor of such bond for such advancement.</p> <p>Such assignor of a bond rhay be equitably bound to pay a sum necessarily expended in procuring the title.</p> <p>The assignee of conreyanoe ^of landhashis election to sue m chancery for a tirador aUw a faiiureatoScon? vey, andhis election and pursuit of ono remedy bond Soar the other></p> <p>Oond^fuing in specific7 execution,beingcaiied on and required to pay more to shouid^aice his andSine0quiieahim to^ make such vanee to relieve faiUoUdo so hi not” Afterwards sue on the bond advance.VerSU° ■</p> <p>Though an unarisemtwhether to?or31theirs should proceed on a bond given for the conveyyetBif the ^iolr creee?he°admfnistratorjiemg_ a fstetor6 cannot afterwards proceed at law. Though lie be no party, yet if he assent, may it not have the same effect even, at law. — Qr.</p> <p>Matters inter alios acta xio evidence.</p>

<p> Rescisión of contracts. Trustee. Vendor and Vendee. </p> <p>The question stated.</p> <p>A vendee of land openly threatening to sue for a rescisión and then coming into chancery for a rescisión of a contract for the purehaseofland, will not he permitted to change the prayer of his hill and claim a specific execution thereof to the prejudice of a subsequent purchaser—</p> <p>Though such purchaser may have professed in his answer a willingness to surrender his purchase, if the complainant, after such answer filed, delay for years to signify his willingness to accept a specific execution, and then, after the land had risen in value, &c. amended, signifying his willingness to perfect the contract— the last payment having fallen due, and being still unpaid—it is trifling with the contracts—</p> <p>W. purchased a tract of land of S. paid $100 of the price, in a few days publicly threatened to sue for a rescisión—E. apprised of these facts, purchases the land of S. and gets the possession; W. then files his bill for reseision, Oct. 10, 1832, S. files his answer in Oct. 1:833, and with the assent of E. professes a willingness to execute the contract; in May, 1836, W. files his amended bill praying a specific execution: the last payment having become due and not made, and no note or security given—held that W. had no right to claim a conveyance, having trifled with his contract, andthe , land risen in value in possession of E.</p>

<p>Chancery.</p> <p>Case 66.</p> <p>Error to the Todd Circuit.</p>

<p> Jurisdiction. </p> <p>The facts of the case.</p> <p>. Questions stated,</p> <p>Bill in equity for a foreclosure of equity of redempton alone in land is transitory, and any court where a necessary defendant is served withproeess,has jurisdiction; but if a decree for sale only Í3 ashed, the court of the county where it lies has the jurisdiction.</p> <p>But a bill for ascertaining the amount due on a mortgage, and for foreclosure and sale, is personal as well as local, and the service of process on any necessary defendant, gives to the court of the county where the defendant may be found, jurisdiction, or the locality of the mortgaged premises will give jurisdiction. English practice in decreeing on bills on mortgages—a bar foreclosure without sale.</p> <p>Ireland, to decree a sale in all cases without consent.</p> <p>An entire debt payable in instalments, on failure to pay first instalment, mortgage forfeited & mortgagee may enter.</p> <p>But in such case a court of equity will not decree a conclusive foreclosure of the equilyof redemption as to the whole.</p> <p>A mortgage is intended as collateral security for the debt, and a court of equity will give it no other effect, nor enforce for no other purpose, and for only so much as is due at the date of the decree.</p> <p>A final foreclosure of a mortgage for one of sereral instalments, cannot extend beyond the instalment due.</p> <p>Mortgagees— three remedies in this country.</p> <p>No decree can be rendered on a bill to foreclose, to sell to pay instalments not due.</p> <p>If mortgaged property be indivisible, can the Chancellor decree a sale for any instalment, until all be due, quere, N. York practice cited—</p> <p>But the Chancellor may sell the whole estate with the assent of mortgagor, or where the interest of mortgagee would require it.</p>

<p>Ca*se.</p> <p>Cáse. 681!</p> <p>Error to the Bracken Circuit.</p>

<p>Case.</p> <p>Case 69.</p> <p>Error to ti-ie Mercer Circuit.</p>

<p> Surveys on entries West of the Tennessee River. </p> <p>The controversy stated.</p> <p>Entry of 4000 acres in the name of Montgomery and trustees.</p> <p>Edward Douse’s entry of 900 acres.</p> <p>Cary Wyatt’s entry of 900 acres.</p> <p>Olías. Dabney’s entry of 500 acres.</p> <p>John Williams’ entry of 1000 acres.</p> <p>Daniel Clark’s entry o C 900 acres.</p> <p>Wm. Clark’s entry of 1000 acres.</p> <p>John Rogers’, entry of 1000 acres.</p> <p>Appellee Allison’s entry of 1200 acres.</p> <p>Willis Wilson’s entry of 1000 acres, under •which appellee Woods claims.</p> <p>Deft’s manner of surveying -the to-wn tract.</p> <p>Statute requiring surveys below theTennessee,to conform to entry does not require absolute certainty.</p> <p>As tbo Register lias been required to issue no patent unless the survey correspond with the entry, when a patent has issued to defeat a plaintiff in ejectment relying thereon, it must appear clearly, satisfactorily and conclusively, to vary from the entry, and the extent and limit ofsueh variance; and this devolves on the parly impeaching the patent.</p> <p>Def’ts mode of surveying.</p> <p>It is not error for Judges, in this State, to charge the jury upon the facts of a case as well as the law.</p>

<p>Chancery.</p> <p>Error to the Hardin Circuit.</p> <p>Case 71.</p>

<p>Ejectment.</p> <p>Case 72.</p> <p>Appeal from the Henry Circuit.</p>

<p> Forcible entry and detainer. Co-parceners. Joint possession. Judgment. </p> <p>The oaea stat0d</p> <p>It is technically erroneous to find one guilty of a forcible detain-er, who has been guilty of no actual force; but if such an one has been guilty of a forcible entry, the finding will be regarded as substantially good.-</p> <p>Two parcener» are in possession, one claiming the ab--who is temporal oüíeralonnhis xe,tum attempts to Jceep him out,, but is unsucter^hiot8 dit efectdsonltoSbee and. ,if success! ble entry and deofmeiresütution jjan the joint, not the exclusive possession.</p> <p>The entry upon, the one -who is in possession, but temporarily absent, does not amount to a disseisin in fact, ■without he who is entered upon elects to be disseised.</p> <p>Disseisin . of things corporeal must be by entry and actual dispossession.</p> <p>One co-parcener dispossessing another should not, on a finding in favor of the latter, be restored to the exclusive possession, but only to his joint possession.</p>

<p>Chancery.</p> <p>Error to the Christian Circuit.</p> <p>Case 74.</p>

<p> Trustees. Administrators and executors. Rescission of contracts. </p> <p>The ease stated,</p> <p>Allegations of the bill of Wathan. et al.</p> <p>Allegations of Narcissa’s cross bill.</p> <p>Decree of the Circuit Court.</p> <p>Trustees and otherfiduciaries, when contracting with those who are interested in the fiducial fund, should be particularly frank and explicit in making known their interest; and a failure to do so will constitute a good ground for a rescission of a contract of purchase of them.</p>

<p>Debt.</p> <p>Case 76.</p> <p>Error to the Washington Circuit.</p>

<p>Covenant.</p> <p>Case 77.</p> <p>Error to the Bath Circuit.</p>

<p> Replevin. Justification. Fraud. Sheriff’s return. </p> <p>TÜe case stated.</p> <p>To justify a judgment de retorno habendo in favor of a Sheriff, it is sufficient thathe ailedge the taking by -writ of fi. fa. against the plaintiff, and thaf the property was that of plaintiff and subject to the execution.</p> <p>An officer averring' “that writs •of fi. fa, were placed in liis hands,” it will be presumed that those writs authorized him to levy on the property oí defendant therein—</p> <p>Where an officer justifies the talcing of property by ex’on against defendant therein, & pit’ f claims under a previous purchase of defendant in execution, officer may show such purchase fraudulent as to creditors, and in doing so show the judgment under which the execution plead was issued.</p> <p>In replevin if the ■writ be returned “executed” and def’t succeed in the action, a judgment de retorno is proper, the presumption being on this return that the property had been restored to plaintiff, that beingthe command of the writ.</p>

<p>Ejectment.</p> <p>Case 79.</p> <p>Error to the Garrard Circuit.</p>

<p>Pet. & ’Sum,</p> <p>Error to the Estile Circuit.</p> <p>Case 80.</p>

<p> Alimony. Equity and equitable jurisdiction. </p> <p>The Chancellor ohange°a decree reduceU^s the circumstances Of ihe parties may, in justice require</p>

<p> Trespass. Double damages. Distress for rent. </p> <p>Double damages cannot be _ a•warded against a landlord for distraining the goods of a stranger for rent— Nor of the tenant unless there be, in fact, no rent due.</p>

<p> Trustee and cestui que trust. Usury. Interest. </p> <p>The ease stated.</p> <p>A trustee is not responsible for more than legal interest though he might have loaned the fund, for a greater interest.</p> <p>The Chancellor will not, without any breach of trusthavingbeen committed, withdraw from the hands of a trustee a iund, the profits of which is given to another, merely to enable the cestui <¡ue trust to loan it at more than legal interest— and a refusal to loan trust funds at illegal interest is no breach of trust.</p> <p>a trustee using a trust fund should pay 6 per nuaiiy^and if not the'interest to be annually made principal.</p>

<p> Petition and summons. Error. Non-suit. </p> <p>A protest of a exchange'iísuunauthoritatived and is no prooif of the WRd°and not judicially presume that the law of Louisiana is different,</p> <p>If a plaintiff voluntarily suffer a nonsuit, _ he waives all objection to any opinion of the Court which may have induced it and cannot complain theieof as error in this Court.</p>

<p> Appeal. Jurisdiction. </p> <p>Justices of the Peace have no jurisdiction of suits founded on notes having credits thereon, where the balance due is over $50, at the dale of the credit given.</p> <p>In appeals from Justices of the Peace, where it appears to the Circuit Court on the papers filed, that the justice had no jurisdiction, it is proper to dismiss on motion—or if, after a jury is sworn, it so appear on the pa-instruct the jury to find for defendant on the ground of want of jurisdiction in the justice,</p>

<p>Chancery.</p> <p>Appeal prom the Greenup Circuit.</p> <p>Case 86,</p>

<p>Debt.</p> <p>Appeal prom the Fleming Circuit.</p> <p>Case 87.</p>

<p> Conveyances. Witnesses. New trial. </p> <p>Tho case staled.</p> <p>When the confessions ofa party are used as evidence against him by his adversary, all that he said at the time of the confession, proved on the same subject, is competent, whether detailed on the examination in chief or coming out on cross examination.</p> <p>The witness offered. by plaintiff in ejectment had purchased part of the land in contest of plaintiff, (in' ease of success,) on his testimony being objected to, he was released from his notes given for the land; held that the bond for title was thereby released, and the witness competent.</p> <p>Deeds made by marshals for lands sold to satisfy the direct taxes due in. 1813, &c. are not prima facie evidence that the thtfowfo^ad» yertising, &o. plied with, and dee^1 if th™suoh°pre° equisiteshad been performed as auihomed a sale, &0‘</p> <p>The requisitions 01 the laws of tiie a s.</p> <p>That one of sereral defendants ■was surprised, <y whonf the^party but who^idnot attend, would havingMimpoX fectbshowl°nby instigation0on the trial, and decredibifityof Ms aífsarZ.’? peciahy where fendants1 makes a,mauefof^uri prise, is not good trial.</p>

<p>Covenant.</p> <p>Case 85.</p> <p>Ereos to the Greenup Circuit.</p>

<p> Indictment. Taverns and tipling houses. </p> <p>One who rends spirituous li'quors in a room of a tarernhouse which is in subordination to the tavern keeper, and by his permission, is not liable on an indictment for keeping a tipling house, butisproteotedby the license of the tavern.</p>

<p>Ejectment.</p> <p>Case 91,</p> <p>Error to the Madison Circuit,</p>

<p> Devisees. Dower. Tenant for life. Reversion. </p> <p>The case stated.</p> <p>Principles of the former opinion cited and approved.</p> <p>The facts appearing in this case on the last trial.</p> <p>Instructions of the Court to the jury in the last trial.</p> <p>The devise in the ■will of Thomas Maxwell to J3. Maxwell.</p> <p>The construction of the devise - Bazil Maxw?’-.</p> <p>Land of which the testator was in possession, he devised to his wife her thirds and to his son the whole tract, both residing on the land in the same family, the son is possessed of the whole tract, subject to the dower interest.when asserted. .</p> <p>In such ease the wife of the son isdowableofone third of the entire tract.</p> <p>Assignment fox aower, though infoimally made yet acquiesced years°and recogí ?iized by the heir, when of fuliagei UJ?lieId-</p> <p>Wast'S by dowiess or other tenant for life, is not sufficient to authorize a recovery in ejectment by the reversioner.</p> <p>Ííor has^ it yet been decided in Ky. that a tenant for life may forfeit his estate by claiming the fee in a court of recordora’courtof equity, (which was not by the ancient law, a court of record,) and the filing of a bill by the tenant for life against the reversioner, claiming an equity in the fee, growing out of the acts of the Reversioner, is Siot a ground of forfeiture authorizing an entry by the rever, sioner.</p>

<p>Chancery.</p> <p>Error to the Fayette Circuit.</p> <p>Case 93.</p>

<p>Motion.</p> <p>Error to the Estill County Court.</p> <p>Case 94.</p>

<p> Indictment. Tipling houses. </p> <p>The statute of 1835, (Ses, Acts, 66,) giving powerto the trastees of Hopkinsville to license tipling houses, is, as to all who obtain such license, a suspension of the general law 52nd a protection.</p> <p>A pleaTelying oa such license ■must 'show that it was duly obtained and covers the period when it is charged the offence was committed.</p>

<p>Case.</p> <p>Case 96.</p> <p>Error to the Greenup Circuit.</p>

<p>Debt.</p> <p>Error to the Franklin Circuit.</p> <p>Case 97.</p>

<p> Forcible entry and detainer. Ejectment. Possession. </p> <p>Although the party may have a judgment in ejectment in his favor, yet if he forcibly enter without the aid of the process and the officer, it is a forcible entry within the contemplation of the statute.</p> <p>A judgment in ejectment asoextains the right to possession, but does not divest the possession, in. fact, but only gives the authority of law-through its process, and the officers of the law to regain the possession.</p>

<p> Estoppel. Parties and privies. </p> <p>D. having an elder entry and grant conveys— after a junior entry in the name-of D. is made to interfere with the first—held that those claim-ing under the junior entry are estopped, as D himself would be, to say that the first entry patented & conveyed by D. was not legally surveyed according to entry.</p>

<p> Notice. Depositions. Judgments. Clerical misprision. </p> <p>One days notice to take a deposition in Louisville to one residing two miles from the city, is reasonable as to time and suffi-' eiently certain as to place.</p> <p>That a deposition is wholly in. the hand writing of the counsel of the party using it is not, per se, a good objection to it—the pi actice of counsel writing the deposit’n should be rebuked, and not indulged unless both parties be present and consent.</p> <p>^Suit against two, abated as to one, and judgment against the defendants should be understood as againsl him only who was before the Court as defendant—the use of the term defendants is a clerical misprision and amendable.</p>

<p> Motion. Principal and surety. </p> <p>The case stated»</p> <p>Though it be irlegulat for a sheriff to admit a part of the defendants in an execution to replevy, yet the bond so talren is valid as a replevy bond, until quashed at the Instance of plaintiff; the judgment is merged therein—</p> <p>And one defendant (surety) left out of the replevy bondmay lawfully procure the benefit of such replevy bond, & it will not on that account he liable to quashal at the instance of the other defendant (surety) in the judgment who, replevied the debt.</p>

<p>Forcible entry^ Possession.- Instructions.</p> <p>'One who purchases and has his lines nm, lakes possession only to the lines, though an error he made in not running the line far enough to include the quantity, and the discovery of the error does not ipso facto, extend the possession beyond where it was originally limited, without ■on actual entry.</p> <p>In such case the purchaser cannot, without subsequent entry, maintainforcible entry, > .¿¡-e. a.gairist one .who enters between, the ;lines, nor ■would, an entry after the discovery of such mistake between the lines, give possession ■ beyond his actual close, if another claiming under an elder patent was in possession, claiming to the extent of .the boundary of such patent.</p>

<p>ChANOERY.</p> <p>Case 103.</p> <p>Error to the Bath Circuit.</p>

<p>Pet. fe Sum.</p> <p>Case 104.</p> <p>■Error.to the Fayette Circuit.</p>

<p> Devises. Condition. Limitation. Marriage. </p> <p>The case stated.</p> <p>Matter of Mrs. Coppage’s cross bill, and decree of the Circuit Court.</p> <p>A limitation in a devise to a widow that she shall not marry, is not void, though there may be no bequest over. An .annuity -during widowhood, is not against the policy of the law.</p> <p>A devise to a widow by her husband, during life or widowhood, is a limitation expressive of the duration of the estate, and not a condition precedent or subsequent.</p>

<p> Jurisdiction. Trusts and trustees. Partition. Costs. </p> <p>The case stated.</p> <p>Decree of the Circuit Court.</p> <p>The Chancellor has jurisdiction to decree partition between devisees of parts of an entire tract of land, though their titles may be legal.</p> <p>The Chancellor has jurisdiction, to compel restitution of an estate held in trust to the devisees of the cestui que trust.</p> <p>¿trustee having paid a sum of money for the possession of one who held a possession of part of the land held in trust, afterwards becoming devisee of part of the land, shall not be allowed to claim any thing as against the devisees of the vendor, without showing that the possession, thus purchased, extended beyond the part devised to himself.</p> <p>A trustee having the possession of an entire tract of land, and being made devisee of part thereof, is liable to the other devisees for the use and occupation of the residue not devised to him, and cannot curtail his equitable responsibility to the period of five years before decree by protracting a litigation therefor 17 years, which was commenced ■within one year after the rights •accrued.</p> <p>Trustee Should be allowed for amelioration, on. lands held in trust, of which he was not subsequently the devisee, butotheis.</p>

<p>Chancery.</p> <p>Error to the Louisville Chancery Court.</p> <p>Case 107.</p>

<p> Wills. Continuance. Witness. Evidence. Instruction, </p> <p>The ease stated and points made.</p> <p>On the trial of an issue in a suit in chancery of devesavitvel non, that the Court overruled the motion of the party for a continuance on the ground of the sickness and inability of a ■witness to attend, but whose deposition the Court gave the party time to. take, and which was taken and read in the case, is no ground for reversal, as it does not appear hut that the deposition was as useful to the party as his oral evidence would have been.</p> <p>It is seldom pntdentforthe court to instruct the jury, that theie is no evidence of fraud or improper influence in procuring a will, but the Circuit Judge has the legal right so to decide, and his decision sustained in this case.</p> <p>The declaration of one of several devisees is evidence. against a will, is admissible evidence,not as a declaration or admission by all, but-as a circumstance entitled to some influence, and to which the tribunal trying the question of will or no will, should give such effect, under all the circumstances of' the case, as such a fact intrinsically merits.</p> <p>The rule of evidence in relation to the admission of parishioners and Penn.* deoisions-</p> <p>not reverse tho’ error may have been committed by the Circuit ingUr Evidence sibileXurniessmt!w &TmíuredPbybitexclusion, and shouiVhave^et testimony had the verdict diffcr8ni-</p>

<p>Detinue.</p> <p>Error to the Jefferson Circuit.</p> <p>Case 109.</p>

<p>Trover.</p> <p>Case 110.</p> <p>Appeal from the Greenup Circuit.</p>

<p>Chancery.</p> <p>Error to the Madison Circuit.</p> <p> Case 111, </p>

<p>Detinue.</p> <p>Error to the Jefferson Circuit.</p> <p>Case 112.</p>

<p> Abatement. Joint and several obligors. Jurisdiction. </p> <p>The case stated.</p> <p>One of several joint and several obligors may be sued in any county where he is' found—and a plea to the jurisdiction of the Court on a personal ground, applicable to one defendant, is not available for another def’t.—</p> <p>—If two or more are sued and one avail himself of a matter of abatement, applicable to him a'lone, it is error to abate the suit as to the other defendants.</p> <p>Where two or more are jointly- and severally bound, the action is transitory, and.1 they may be sued in any county in. the State where either may be served with process, andprocess or alias process sent to the counties where the other defendants may be found.</p> <p>The statute of 1796 applies the jurisdiction to any county in which the suit may be brought, leaving the jurisdiction according to the common law, which is not repealed by the statute of 1812., nor does it restrict a joint suit to the domieil of one defendant.</p> <p>The.statute of 1812 (Stai. Law, 343,) does not change the common law jurisdiction in regard to suits on joint or joint and several obligations, and the term resides, used in the 4th section, means -wherever the defendant may he found and served such process, tho’ not the actual domicil.</p>

<p>'Indictment.</p> <p>Case 114.</p> <p>Error to the Christian Circuit.</p>

<p>Chancery.</p> <p>Error to the Jefferson Circuit.</p> <p> Case 115: </p>

<p> Assumpsit. Joint sureties. Contribution. </p> <p>The ease stated.</p> <p>Where one or more of several joint sureties pays off a note By note in part and money ior the residue, and the principal be insolvent,' such surety has a right to demand contribution from the other joint sureties, though the substituted note be not fully discharged, and may maintain indeiitatisassumps it—</p> <p>And this right of action is notlost or suspended by the siuety who-thus paid the debt, talcing from the principal by way of indemnity, a mortgage upon a merely contingent right, which was not then available, and might never be of any value. ■</p>

<p> Landlord and tenant. Trespass. </p> <p>The case staled.</p> <p>Where a contract is for the occupancy of a tenement for the year on condition—if the tenant is in no default his right to the occupancy is not determined, and an entry upon his possession by the landlord i3 a trespass.</p>

<p> Interest. Attachment in Chancery. Surety. Rule of Court. </p> <p>The cave stated.</p> <p>The Chancellor applies P^®^5 first to extin|uish interest; /f</p> <p>Hhe surety in a bond for the forthcoming of property attached by the Chancellor, may be rendered responsible on a rule for failing to comply, in the same way as the principal, withaSdIf tiLf'bond °.ontam obligalions beyond thos^e required the chancellor, that extent, be disregarded,</p>

<p> Fraudulent conveyances. Sheriffs. Executions. Torts. </p> <p>The case stated.</p> <p>Judgment of the Circuit Court for plaintiff below.</p> <p>A deed of trust of all the debtors property, including stock and a growing crop, which provides for a sale by the trustees, for the benefit of all the creditors, after the expiration of about 3 months, is not necessarily fraudulent, and if the intention be to mature the crop and fatten the stock, is not, per se, fraudulent.</p> <p>For the debtor to remain in the possession of property so conveyed, is not, per se, fraudulent.</p> <p>The declarations of grantor, after the delivery of a deed, are not competent evidence against the grantee or others interested in the subject of the conveyance.</p> <p>It is not competent to prove_ a fraudulent intent in a conveyance in trust, to prove that the grantor had previously been guilty of making a fraudulenteonveyanee to another—Argu.</p> <p>Though a sheriff may lawfully levy an execution on property mortgaged, yet he may he guilty of illegally selling, and by such illegal assumption, he guilty of a conversion, ab inito, and the acts of the sheriff after the institution of the suit are competent to ■show the oiigimal intention >.a taking.</p> <p>A creditor who is provided for with others, in a deed of trust, but who has never assented to the deed, levies his execution on the trust property. In a suit by the trustee, in which a recovery is had for the illegal seisure against the sheriff and the creditor, the latter has no claim to any abatement in the extent of the recovery on account of his interest as a cestui que trust in 4he deed.</p> <p>The short period, of three months delay of a sale, professedly to fatten stock and mature a growing crop to sell for the benefit of creditors, is not in itself fraudulent under rhe statute; it can only operate as some evidence of such an intent.</p> <p>This ease is distinguished from that of Ward et al. vs Trotter et al. (3 Mon. 1) where the object (to prevent a sacrifice of proper- ■ ty) was avowed on the face of the deed.</p> <p>Where the act of talcing amounts to a trespass,- plaintiff may waive the trespass and sue alone for a conversion.</p> <p>A deputy sheriff is not shielded by process from hisvoluntary and tortious acts.</p>

<p> Alimony. Divorce. </p> <p>A contract between busband and wife for separation being againslpublicpolicy, should not be enforced by the Chancellor on her bill fof that purpose.</p> <p>Tho’ the time of abandonin’t may not have authorized any decree when the original bill was filed, yet if before the filling an amended bill the abandonment has been sufficiently long to authorize a decree of divorce a mensa et ihoro and for alimony, it may be decreed.</p> <p>The father purchased a tract of land worth 1200 dollars, conveyed it to his son, •who re-eonveys it to the father and afterwards marries and separates from his wife; she files her bill for alimony and divorce ; without ■proof other than the mere relationship, the Chancellor will not be authorized to declare the property thus held by the father a trust, and decree alimony to the wife out of the profits thereof.</p>

<p>Chancery.</p> <p> Case 121. </p> <p>Appeal from the Louisville Chancery Court.</p>

<p>Covenant.</p> <p> Case 122. </p> <p>Error to the Henry Circuit.</p>

<p>Case.</p> <p>Appeal from the Washington Circuit.</p> <p>Case 123,</p>

<p> Motion. Release of surety on replevin bond. </p> <p>The 19th sec. of 1828 Sta(S£aíK?í ^ies as5,) lito" the issue of a titonafteronrfhas already issued on as to the first; a months at""'any cutibnWlienm1ght have issued, releases the surety in replevin bond, baving'the force ■of a judgment,</p>

<p>Trespass.</p> <p>Error to the Rockcastle Circuit.</p> <p>Case 125.</p>

<p>Chancery.</p> <p>Case 126.</p> <p>Appeal from the Breckinridge Circuit.</p>

<p>Chancery,</p> <p>Appeal from 'the Fayette Circuit.</p> <p>Case 127.'</p>

<p> Fraud. Rescission. Allegation and proof. </p> <p>Where the allegations andproof do not authorize a conclusion of fraud in a division, it is very difficult to make out such fraud by the mere opinion of witnesses, from inequality, which would authorize the setting aside such division.</p> <p>Preponderance of evidence in favor of the division sought be set aside.</p>

<p>Chancery.</p> <p>Appeal from the General Court.</p> <p>Case 129.</p>

<p> Importation of slaves. Legislative power. Executive povoer. </p> <p>To an indictment for importing slaves, contrary to the provisions of the statute oí 1833, it is a good defenee'to plead that defendant had since taken and registered the oath prescribed by the statute of-1841, to emigrants who had, in good faith, imported slaves, but had failed to take the oaths required by the act of 1833.</p> <p>Though a penal statute be violated, yet if, be fore the penalty be inflicted, the statute be repealed, no judgment for the penalty can be rendered. So if it be modified, no judgment can be renderedexceeding the penalty left in force. The power to repeal mcludesthe power to modify.</p> <p>ereiseof theexaoning6power repeal or modify a penal law (whereby the Ee^ecove^d?) mentlsTJndered for the penalty,</p> <p>The constitu^ct^^sss not involved and, therefore, not decided.</p>

<p> Partners and partnership liabilities. Trustees. Mortgagees. </p> <p>The case stated.</p> <p>The state of the piafes,S¡and decourt6 Cu'"</p> <p>■ partnership ]£°pe¡g7 HJlfy partners’p debts preference to* individual debts ™ea“¿er-</p> <p>if ored;t. ors of a partner-selves on differtaidnl^morttract,</p> <p>Trustees who hold funds during a contest between mortgagees without using it, and who are not required to pay it into Court, shouldnot be held accountable for interest.</p>

<p> Commissioner’s sale. Fraud. Purchases by counsel. </p> <p>The ease stated.</p> <p>The grounds relied on for setting aside the sale.</p> <p>Great inadequacy of price, and a purchase by compl’ts counsel have separately been noticed by Chancellors " as grounds forscrutinizlng and setting aside sales under decrees— the latter has been sometimes considered sufficient as “against the policy of the law.”</p> <p>More slight additional facts tending to show unfairness in a sale will incline the Chaneellorto set aside a sale where the com-pl’ts counsel is the purchaser— and it devolves on such an one purchasing, to some extent, to show entire fairness in the sale.</p> <p>The Chancellor takes no delight in being the instrumentofspeculation to one party and of loss to another party—and the English Chancellors not unfrequently order the biddings to be opened on the offer and deposit of a moderate advance on the sale.</p> <p>The highest bidder at sales under decrees, does not, like a bidder at sheriff sale under execution, acquire any independent right to have the purchase completed, but is nothing more than a preferred bidder or proposer for the purchase, subject to confirmation by the Chancellor.</p> <p>The fairness required in manner, &c. in sales by commissioners, not easily-defined, and depend principally on the circumstances existing at the time, and must be left to the discretion of the commissioner and the counsel, who, from his connection with the suit and, Court, is under obligations to'see that all is fairly done, so far as he acts at all, and if he attend a sale it is pre- ' sumed to be for •that object.</p> <p>When counsel for complainant attend commissioner’s sale, not to prevent a failure of duty by com’r. but for the purpose of becoming a bidder, it presents such a semblance of unfairness as should, induce the Chancellor to set aside the sale, where theie was great inadequacy of price.</p> <p>When the purchaser at commissioner’s sale was complainant’s counsel, and knew that the land offered was all the prop, eily to be had to satisfy the demand, and the property going for about a tenth of its value, and made within a few feet of the court house where there were many persons and many others in the streets, and JO' or 12 only immediately present, no loud proclamation to call the attention of those at that distance, all circumstanc es showing that the com’r. did not make afair effort to procure the best price; and his conduct was acquiesced in by the counsel and the sale should be set aside.</p> <p>When property has been sold by the commissioner of a Chancellor at a very inadequate price, and failed to satisfy the debt required to be made, & bought bycomplainant’s counsel, and com’r. has not used proper efforts to procure the bestprice, it will be no ground for refusing to setaside the sale that the purchaser has, subsequent to the sale, agreed to satisfy the decree in fa-, vorofhis client, to sustain this, purchase,.</p> <p>The conduct of' one to whom land has been, fraudul ently conveyed in forbids ding the sale, claiming title, <$■0. when a sale is decreed by the Chancellor, the conveyance not■withstan ding, does not absolve the com’r. of the Court from still using all proper exertions to procure a fair price at the sale. The counsel should have explained away the effect of such declarations by one who was concluded by the decree in the case.</p>

<p> Indictment. Nuisance. Pariiceps criminis. </p> <p>Questions presented by the record.</p> <p>Every person -vvho voluntarily aids in establishing a baivdy house is guilty of a misdemeanor.</p> <p>The mete Tenting to another a house to Be kept as abawdy house, is no offence unless it be so kept, not is the act oí selling a house to a known bawd an indictable of-fence.</p> <p>The owner of a house may be legally as well as morally responsible for a criminal use made oí his house with his knowledge and consent, and especially to his profit.</p> <p>If lessee convert the tenement into a moral nuisance, and the owner leased it for that purpose, or knowing that it would be so prostituted, derived any profit from its being used for such purpose, to such tenant, which he would not otherwise have enjoyed, as certainly and as beneficially, he might be punished as particeps criminis.</p> <p>An indictment charging • the renting of a house to a notorious bawd to bo kept as a bawdy house, and such keeping of it by her accordingly, imports that, in making the lease the lessor was influenced by the unlawful purpose of eneouraginganuisance.</p> <p>The facts, that a lessor knew that the lessee was a bawd, that she did use his house, with his knowledge and apparentconeurrence, as a public houseof prostitution, and that he derived ample profit for its occupancy, may authorize a jury to find the fact ^urpose^ot the Fessor that^ the he1 used aa a andthat he°was a co-operator in made by the lessee'</p>

<p>Assumpsit.</p> <p>Case 134.</p> <p>Error to the Bath Circuit.</p>

<p> Pleading. Consideration. </p> <p>The ease stated.</p> <p>In covenant, it is not competent for defendant, without any allegation of fraud or mistake, to aver a different consideration for the covenant than that set forth on its face.</p>

<p>Ejectment.</p> <p>Appeal from the Boone Circuit.</p> <p>Case 136.</p>

<p> Trusts and trustees. Limitation. </p> <p>The case stated.</p> <p>The father-in-the Psondn-lawf (who wasembarrassed) sundry slaves; took a it'to’w^daugh^ ter, enjoining its assuring her that the'siaves to herself and ehildren; the slaves lemain with the son-in-law till his death; the famfnísterMeaves part of the slaves the daughter, •for the benefit of dren^"ondnlaw, for whom he was guardian; dies and devises five stocks^ this oneSllsayingeno^ thing of those thosesiaveswere the daughter's i^ldldead)heand held by the faring"hisaTife as then trustee.</p> <p>Limitation canto1 the11 person himseif or his •who obtains and odp3ropertyS1as trustee, but from the time of opentL Trastean! claim,ins adversely to the cestui que trusts.</p>

<p> Specific performance. Lapse of lime. Election. </p> <p>The easestateá</p> <p>The contract,</p> <p>Decree of the, Court below.</p> <p>Generally whba there is a want of mutuality ia contracts of purchase, time is essential as well in equity as at law.</p> <p>A demurrer should not be sustained to a bill against administrators and heirs, making such allegations as if confessed by the intestate, would have authorized and required a decree ibi complainants.</p> <p>A lapse of 21 -days from tlie time a party who was lassee, had to elect to purchase a lot, not regarded as forfeiting the right to do so under contract, when a reasonable excuse was given for such delay, viz: death of obligee, refusal of administrator to receive the purchase money & non-residence of some and infancy of others of the heirs.</p> <p>Where the assignee of a lease for 10 years, ■with the privilege of then taking the property at a stipulated price, makes considerable improvements thereon, indicating an intention to purchase, and the lessor die, & the heirs are some infants, others non-residents, and the adm’r. refuse to receive the purchase money, <y no suitisbrought for 21 days after the expiration of the lease, it vio-lates no principie of equity or justice to say there is no forfeiture of the right to purchase and hold the premises.</p>

<p>Debt.</p> <p>Case 139.</p> <p>Appeal from the Hardin Circuit.</p>

<p>Chancery.</p> <p>Error -to the Harrison Circuit.</p> <p>Case 140.</p>

<p>Chancery.</p> <p>Case 141.</p> <p>Error to the Louisville Chancery Court.</p>

<p> Writs of right. Judgments. Void and voidable. Lapse of time. Maxims. </p> <p>The case stated.</p> <p>A purchase under a void judgment confers no xightof entry, & any entry under such purchase is void and a disseizin.</p> <p>Demandant in a writ of right may recover to such extent as he may show title, tho’ it be less than his writ demands.</p> <p>No person is a party to a suit or bound by a judgment therein, without voluntary appearance, service of process, or judicial notice of some sort.</p> <p>The appointment of a guardian ad. litem to infants, who are never served with process, does not make them parties, and especially where such guardian does not make his appearance in the case by plea or otherwise show his acceptance of the appointment.</p> <p>The service of sherffffon'one1^ f^ld{,aef0red hzj£ appointment as such, is unauthorized, and a return to that efiect extra official and void, and furnished no evidence to such person that he was guardian ad litem.</p> <p>Notice to one, of his appointment as guardian, ad litem, does not, in any available sense, make those for whom he has been appointed, defendants in any judgment against them. The record, to bind infants, must show that they were parties to the action in some legal and effectual shape.</p> <p>The Court should never render |udgment against Infants, but on plea filed for them, or on being satisfied by a guardian ad litem, that after vigilant effort he could ascertain no useful defence to the action.</p> <p>Lapse of time may cure irregularities in judicialproeeedings, but not such as appear to have been void, and no suggestion o£ any mutilation by lapse of time.</p> <p>Time may authorize the presumption of ant extraneous fact which the record does not show, and which was indispensable to the validity of a judgment, and which the record should exhibit.</p> <p>This Court will not presume that a guardian ad litem appeared for infante, when the recordshows the reverse, expressly to npiold a judgment.</p> <p>That which wa's void’ah initio in tractu temporis non convalescit.</p>

<p>Debt.</p> <p>Appeal from the Marion Circuit.</p> <p>Case 143.</p>

<p>Indictment..</p> <p>Error to the Estill Circuit.</p> <p>Case 144,</p>

<p>Chancery.</p> <p>Appeal prom the Franklin Circuit.</p> <p>Case 145.</p>

<p> Equity and equitable jurisdiction. Practice in Chancery. </p> <p>Tlie case stated.</p> <p>The Chancellor has full power, either with or without the intervention of a jury, to award payment of all necessary and proper expenses incurred m the sate keeping and maintenance of property taken into Hie custody of the law by his order; and where the proceedings is dismissed by agreement, the complainants at whose instance the proceeding was had, is responsible for the expenses.</p> <p>Where the suit is at an end before such order is made, it is most regular to proceed by rule upon the responsibleparty; but if he appear, join issue, and make defence, without any application for continuance, and a jury pass on the amount of allowance, it cures the irregularity.</p> <p>Where an adm’r. files a bill enjoining the custody of personal property, though the property did once belong to their intestate, yet if the necessity for the proceeding proceed from their own actings, they are individually responsible for the expenses incident thereto.</p>

<p> Guardian.' Damages. Averment. Contract. </p> <p>A guardian, -hiring a slave for his ward, has to right of action, not only-for the hire, but for damages for a failure to return the slave.</p> <p>The hirer is under an implied obligation to return a slave hired.</p> <p>There is no difference in the averment on an express or implied promise— nor is the day of malting a contract of hiring material; the day of the surrender is.</p> <p>The ieooTeIjr of a slave hired, te/of law* vest *°7™® ¿°e fendant.</p> <p>The jury,, in assessing damages for a failure to return a slave hired, are authorized to assess damages to an amount equal to the value of the probable costs and expenses incident to a recaption.</p>

<p>Detinue.</p> <p>Error to the Franklin Circuit.</p> <p>Case 148.</p>

<p>Covenant.</p> <p>Error to the Franklin Circuit.</p> <p>Case 149,</p>

<p>Chancery,</p> <p>Case 150.</p> <p>Appeal from the Louisville Chancery Court.</p>

<p> Motion. Sheriff’s return. Habere facias possessionem. </p> <p>Turning defendant out of the house and putting plaintiff in, and putting defendant’s goods out of the house, and giving plaintiff possession, bywords as well as acts, though deft’s, goods be not all removed off the premises is in substance an execution of a writ of habere facias, and a return to that effect is proper.</p> <p>Although it is sheriff1 if' requií edby the plain-all the effects of executing*’ tlíe writ of habere facias, yet this is not essential deftiMan^of the possession.</p> <p>The possession fiomtedefendant to plaintiff, tho’ o]l tba DP not” removed sesbythe sheriff Mberefadaspos sessionem.</p>

Covenant. Case 152. Appeal from the Greenup Circuit. [This is an action of covenant brought by William G. Carter against P. M. Savage, on the following article of agreement: “This agreement, made this 11th day of April, 1834, by and between Pleasant M. Savage, of Lewis county, Kentucky, of the first part, and William G. Carter, of Greenup county, Kentucky, of the second part.

<p>The four opinions -which follow were not originally designated for publication, but upon inspection they are found to settle, more definitely, the questions on which they bear, than any opinions heretofore reported, and are, therefore, thought worthy of publication. Reporter.</p> <p> Lien bij execution. </p> <p>Under the execution law of 1821, (5th Sec. 1 Dig. 609,) when real property would notsellfor three-fourths of the valuation, it was released from the levy, though subject to other executions.</p>

<p> Femes Covert. Parties in Chancery. Surety. Replevy Bonds. </p> <p>The case stated.</p> <p>Decree of the Circuit Court.</p> <p>A sale of the interest of one or more of several joint tenants does not affect the interests of other joint tenants— they become tenants in common ■with the purchaser, and their bill for partition may be proper.</p> <p>It is improper in a bill to confirm a Sheriff's sale of the interest of such persons as held an interest subject to sale, to claim a relinquishment of the title of one whose interest was. not subject to sale.</p> <p>It is not compe_ ^rtfotx in a mi with jointtelantewith ^“’¡^¿abie interest in lands husband’s inter^eln sold.</p> <p>A surety in Ie_ P^g £ convey* anee of land as and permits the tobt. The grant-against the pura re-conveyance money toe, or an offer to submit to a re-sale, and then sA®uid bf made Paxt^</p>

<p> Motion. Jurisdiction. </p> <p>From a judg" tice on"a motion af bíeíb^faT11" toreturn execu? amountheoeiieleteappealCmust^bé to the Circuit ur'</p> <p>if the amount notice,edand the iustlce^^such the V pea?dm5’ etiy a£.es to^e Circuit Court.</p> <p>And if upon hearing in the Circuit Court, it shall appear that the Justice had no jurisdiction, or that no appeal lay to the Circuit Court, suchjudgment should be entered as would prevent the plt’f in the motion from proeeeding upon the erroneous judgment appealed from.</p>

<p> Priority of Lien. Attachment in Chancery. </p> <p>Where the bonds of indemnity given by two attaching creditors were executed on the same day, and there is nothing to show which was first executed, the one obtained the first order from the Chancellor, the other had process served 10 minutes first —held that the attached effects should be divi* dedpro rala.</p>