Volume 46 — Kentucky Reports

Indictment. Case 1. Cate stated and decision of the Circuit Court. In an indictment Blnves 15onnirnry to iheprovisions of the statute of 1833, it is not stat^Tn^the iri° dii tment, that tne defendant aoes_ not come cepti'ons nr 6(o visos,IVco'niBined in the statute. ters of defence more appropT?defendant1 and ”ie?paed in ?h indictment.

Debt. Case 2. There is ao error in the Court in refusing to give inst ructions which are abstractly correct, unless the evidence conduces to the proof of the state of case supposed.- ^The Coinmiav siohers’ book, ■tvitko proof that the tax list was given in upon oath, is admissible evidence agaiust the owner of the property listed. And if the Commissioner be absent from the Slate they are admissible upon proof that the books are in the hand writing of the Commisioner.

Covenant._ Case 3. Cass stated, The bill of guaranty. The pleadings, Tha construction of the letter of guaranty. To authorize a recovery upon a general'letter of guaranty, it is necessary that the plaintiff not only aver that theguarantywai accepted, the credit given upon the faith of the guaranty,but that the guarantor was notified in a reasonable time,of the credit given, its extent, aud terms, and that the guarantor would be looked to for performance thereof.

Sci- F& Case 4. Caso stated. A Sci. fa. on a recognizance to keep the peace mast conclude, “ against the peace and dignity of the Commonwealth of Kentucky,’' and the omission is fatal on demurwr. —It is a criminal proceeding as sontra diatinguislied fion* civil, within the meaning of the constitution of ICntueky.

Chancery, Case b. Case stated. . Decree of the Circuit Court. i Husband devises j his estate after / the payment oí / debts “wholly to > his wife, and to ' bo disposed of bv her and divided ¡among my children at her discretion.” Held that the wife 1 took an estate for life, with full • power to give to 'the children, or ¡appropriate it to . their use at her ¡ discretion; and ; she dying, the ' children of the / testator take that /undisposed of by their mother under the will.

Ret. fc -Sum.. Case :6. Case stated and judgment of the Circuit Court. An authenticated eopy.of a certificate of probate is sufficient evidence oí a rightful appointment of an Executor in another State. Notice of the dishonor of a bill of exchange is reasonable, if forwarded one day after the dishonor; each endorser has one day after notice, to forward notice to his immediate endorser.

Case. Case 7. Case stated, Rents of land received by an Administrator are not assets, and for them the sureties of the administratorare not Jiablc, tho’ the adminstrator is liable personally as trustee. The Justices of tho county court are not responsible to distributees for failing to take surety from an Adm’r. where the suit is to recover for rents of land of the intestate.

<p> Practice. Commissioners' Reports. </p>

<p>Practice in chancery, Interrogatories.</p>

Trfspass. Case 10. Case stated. The facts appearing in evidence. Judgment of the Circuit Court. This Court is not to affirm a judgment of a circuit court upon one point made and discussed in that court, though it concur with that court, when, there are other points clearly against the judgment. A distress warrantcannotissue or be levied until tbe day after the rent falls due.

Indictment. Case 11. Case stated. The Trustees of towns m Kentuekjr are anquhfthe streets {fair6 byPthe inhabitants thereof, and for failingto do so, are ment) andto^ imprisonment by the coramon law. As the punishment of trustees of towns for failing to cause the sts. to be lcept in repair is fine and imprisonment, this court has no jurisdiction since the statute of 1841, to revise a judgment of the circuit court in such cases except at the instance of the defendant.

<p>Appeal prom the Louisville Chancery Court.</p> <p>Chancery.</p> <p>Case 12.</p> <p>Case slated.</p> <p>Instructions of the court to the jury-</p> <p>¡Rulaiof liability for assessing damages for injuries done to vessels at sea, is'not the rule of liability for injuries to steamboats on the ■Ohio; the first is governed by admiralty law, the latter by the common law.</p> <p>—J3y the common law, if the officers of two vessels coming in collision were both in fault,neither can recover, so if the collision was putely accidental and unavoidable.</p> <p>It is not in the power of the judiciary of Kentucky to adopt the civil law or the marine code of Europe, in ascertaining the liability of steamboat owners for injuries done by collisions on the western waters.</p> <p>—And though to the ehancelloris given jurisdiction of such eases, and power to attach the boat, the common law principles must govern his adjudication.</p>

<p> Jurisdiction. Gaming. Commonwealth’s Faro Bank.. Attorneys. </p>

Warrant. Case 14. A warrant issued by the Cleric of the City Court “for presuming to sell by retail withouta license so to do, any quantity of wine, brandy, whiskey Otc.”is too indefinite a charge to authorize a judgment by the City Court under the city ordinance, which makes it penal “to sell by retail less than a quart.” The Marshals of the city of Lexington, whose fees are all contingent, depending upon the conviction of the accused, are incompetent witnesses against…

Trover. Case 15. Case slated. Judgment of the Circuit Court. The 20th sec. of the 10th art. of tho constitution abrogates so much of the common law forfeiture as affects the inheritance, leaving it in force only as relates to the estate for the life of the offender. The provision of the statute of 1796, the 43d and 44th secs.

<p> Attachments. Usury. </p>

<p>Appeal from the Fayette Circuit.</p> <p>Chancery.</p> <p>Case 17.</p> <p>Case stated.</p> <p>Deoreo of the ‘Circuit Court.</p> <p>A deed of gift giving specific sums to the donor’s children, to be raised at his death by the sale of property not deeded away if sufficient, if not sufficient then to be raised by the sale of land and slaves, it proved insufficient. Held that the land and the slaves were subject to the payment of these sums, and that dhey constituted rti charge upon ¡the gift.</p>

Appeal prom the Christian Circuit. Chancery. Case 18. Case stated. Bill of Lampton fot rescission. The answer of Usher’s heirs resisting the rescission, and tendering a deed confirming the conveyance by commissioners. Decree of the. Circuit Court. Circumstances from which capacity to consent to a judicial sale to convev, is infered by the Court.

Chancery. Case 19. Case stated. Decree of the Circuit Court, and Arnold’s objections thereto. A mort’gee ■who’ is charged with rents upon the mortgaged property, should be allowed for expenditures made' for the relief of the mortgaged property in the extinguishme nt of paramount liens.

<p>Error to the Carroll Circuit.</p> <p>Chancery.</p> <p>Case 20..</p> <p>Case stated.</p> <p>When a note is for the payment 'of money, absolute and unconditional upon its face, in aid of an institution of learning, can parol proof be admitted to show that the money was to have been specially applied to one branch of learning to the exclusion of others? — Quere.</p> <p>—Parol proof dehors the writing in such case, cannot be admitted to show the moving consideration for its execution, when the objects and considera t i o n s are various, and none are expressed in the writing.</p>

<p>Error to the Cray Circuit.</p> <p>Chancery.</p> <p>Case 21.</p> <p>To give the chancellor jurisdiction to attach and apply the fund of an absent debtor, in the hands of a third person, to the payment of the debts ot such absent debtor, the proceedings should be instituted in the county_ where such third person resides at its filing or the process served m the county where the suit is brought.</p> <p>It is the power over^tife subject sought to be reached', that gives the Couit ímlsdfoiTttaehí ments — not the service- or process ontbeprintheal service Uof jbreni,33 ^county from jhat ^in is brought.</p> <p>"Where an attaoh tin chancery is brought in ¿uctün’j'u is* hi-a^fundSn bthe nfshíe^untííhs answer, the1'quastion^of jurisdiction or fail to answer at all.</p>

Presentment. Case 22. Case stated. The defendant on presentment, ■was fined $60 for keeping a tippling house, the Governor remitted the fine, Attorney for the Commonwealth claiming half the fine as his fee in the ease,moved the Circuit Court to dirrct the Clerk to correct the taxation of costs, and tax $30 as his fee in the case.

Appeal prom the Ballard Circuit. Ejectment. Case 23. Case stated and judgment of the Circuit Court. The general rule is that a patent may not be impeached eollaterally by axlrinsic evidence de hors the patent itself. (4 Bibb, 330,) cited and approved.

<p>Appeal from the Nelson County Court.</p> <p>Motion.</p> <p>Case 24.</p> <p>CaBe stated.</p> <p>The Btalute of 1810, (2 St. Law, 1071,) applies only to, and authorizes the County Court to divide lands between parceners and not to eases ■where part is held as tenant in common and part in parcenary, and the County Court has no jurisdiction in the latter case.</p> <p>The heirs er some one of them holding lands in parcenary, are authorized to make a motion to the County Court for the appointment of Comm’rs. under the statute 1810.</p> <p>The chancellor in dividing lands among tenants in common, or parceners, will consult the interest of all, without prejudice to any, and lay off the part or portion to which each is entitled adjoining and in convenient form.</p>

Appeals from the Louisville Chancery Court. . Chancery. Case 25. The grounds of equity stated m the bill. Ans-weis. Decree of the Chancellor. The statute of 1838, (3 St,.Laws 116,) does not authorize the Chancellor to take property which may have been fradulently purchased without intending to pay for it, from the hands and possession of an innocentpurchaser thereof for valuable consideration, and restore it to the first vendor.

Chancery, Case 26. Case stated. A vendee who has received a eonveyance and been let into possession, and is in the undisturbed enjoyment of hi3 purchase will not be heard for a rescission on account of dormant and doubtful claims which he may stimulate others to’assert against his title. The title of a vendorpiesumed to be valid by length of possession coupled with an interest as heir and vendee’s bill for rescission dismissed.

Chancery, Case 27. Case stated The debtor of a debtor against whom a bill is filed by a creditor to have the benefit of a demand or chose in action against him, cannot be required to violate his contract, and if property is to be delivered, unless a receiver be appointed by the Chancellor, he may still go on to pay, if the consequenGe of his failing so to do might subject him to pay money instead of property.

Chancery. Case 28. Where bill is filed to foreclose a mortgage upon real property incumbered by pri- or liens, it is proper to make all persons holding such liens parties, or if priorsuits are pending to enforce prior liens, to consolidate the suits and avoid a sacrifice of the property by multiplying sales of small parts.

Covenant, Case 29. Case stated. To constitute a covenant of warranty, it is not necessary that the word warrant should be used; any word or words of equivalent import showing an intention to warrant, will be sufficient. “I have this day sold to T. B. my negro boy J. aged about 22 years, which I warrant to be a slave for life,” &c.,isnot a warranty as to the age of the boy J., but at most but a description or representation.

Motion, Case 30. Case stated. The sureties oí quiresdm'counter security, he answenng that he ■was unable and ft”mtheg Court thate,‘he be^re■mored from oftice on condition that the sureties tíen.'or eUherof them, would talte upon themselves the admin-«o error in the •order of the Oty. Court to the preiureties°f for he1reversed10uld

Chancery. Case 31. A widow renouncing the provisions of her husband’s will, is entitled, under 24th sec. of ihe statute of 1797, to one third of the slaves of ■which the husband died possessed for life, and one third of the personal estate absolutely, •though there foe :no children. —But in] case of the husband dying intestate as to his goods and chattels, or any part thereof, and without child or children, the widow, by the 28th see. of the same statute, is entitled to one…

Asst? mpsit. Case 32. The assignor is-not liable upon his assignment though there be a return of nulla bona when property is levied on and taken from the officer by writ of replevin, unless assignee loose the property in the replevin suit duly prosecuted, or is-able to show that-the property levied on was not subject.

Chancery: Case 33. * Á- deed reciting to be for a consideration paid and secured to oe paid, is constructive notice to a purchaser that a part of the consideration remains unpaid, (6 J3. Monroe, 67: ,Jbidt 74 )■ Vendor has a Hen for the consideration remaining unpaid, though a conveyance be made where a subsequent purchaser has constructive notice of the fact that it is unpaid.

Chancery, Case 34. _ A chancellor will do equal justice to the creditors oí a decedent by a pro rata distribution of assets. Where a bill is filed by one creditor to subject assets in the hands of theheir, another creditor on his petition showing that he is such, should be made a party, as he has a right to participate in the distribution of the fund.

Assumpsit. Case 35. Case stated. pieaSa^etoff t°.a demand agamstliim, a de~ manddue by the othCT^aaTlf itonthe Jpieaeditis then too^ latero joint demands the1101 objection shouid have been by demurrer to the plea. The rule that a joint liability shall be asserted and enforced against all the parties liable, is a technical rule that is waived by a failure to present the objection at the first opportunity.

Covenant.. Case 36, ©ase staled. Where the parties stand in pari. delicto,Ü¡ But when a notéis based upon a valid consideration, and a receipt is obtained against that note based upon an illegal and vicious consideration, the Chancellor will disregard the receipt, and let the demand be collected; the receipt being invalid does not a flee I the note.

Chancery, Case -37. A fraud or a pal-made by She field regimentoiTa settlement with a regimen talpaymaster, may be enquired into on the trial of amopaymaster'81 for his supposed deImquency ana evidence conduofmistaíe sinid ceivedbeen re*

Appeal prom the Clarke Circuit. Chancery. Case 38. Case stated. An attorney at law has no an* thorily to release a [judgment oh* tained by him for his client, without a new warrant, he remains attorney while the judgment may be executed without new proceedings, for the enforcement of the judgment, not for its release.

Case 39. Case stated. “Words -when written which tend to degrade or disgrace, or render odious or ridiculous the person of whom they are spoil en, will belibe lous, and consequently actionable”— {Litt. ,Sel. ■Cases 188.) That the defendants composed, published and eaused to be written in the church book the following: “Are-port raised and circulated by William Shelton (the plaintiff,) against brother Nance, stating that he (Nance,) made him (Shelton,) paya note twice, and…

Case 40. Case stated and decision of the Chancellor, Proof of cohabiiatiowand recognition. by the parties of each other as man' & wife is for most purposes deemed sufficient proof of marriage, subject however to be rebutted; but in a suit by the relations of the supposed wife against the supposed husband for the property of the deceased supposed wife, where the issue is- marriage in factor not, such evidence is insufficient; a marriage in iact shouldbeproved.

Chancery, Case 41. The statement» and object of Basye’s bill and amended bill. Answer Beard’s ex’r. andM’Donald’s legatee made a cross bill. Decree of the Circuit Court. Errors assigned to this decree. The substance of the record of Mrs. McDonald as her husband, eited. Compromise of the last cited case. The controversy in regard to the slaves stated.

Writs or Error to the Pulaski Circuit. Chancery. Case 42. Case staled. The object of the biil-of Owens. Answer of Cow-an’s heirs made eross bill against Cameal, &o. Th. V. Cameal’s answer and cross bill against Cow-an’s heirs. Decree of the Circuit Couit. Two guardians of infants uniting in a petition for the sale oí infant’s estate, and one swearing to the petition,is a substantial compliance with the statute.

<p>Appeal from the Jefferson County Court,</p> <p>Motion.</p> <p>Case 43.</p> <p>Caae stated.</p> <p>in ascertaining the tax to be imposed upon the Louisville and Portland Canal Company under the Statute of 1819, (2 Statute Laws, 1376,) the canal, and all locks, dams, bridges and houses should be valued.</p> <p>The right ef taxation is a sovereign right, and is not to .be considered .as waived as to the property oí a corporation unless expressly waived, though the shareholders may reside out of the ■State where the corporate property is situated.</p> <p>The imposition of a State tax upon the property of a corporation, is no violation of the contract or privilege given by the charter, unless the right to lax he ex-preasly surrendered by the charter.</p>

<p>Appeal from the Louisville Chancery Court.</p> <p>Chancery.</p> <p> Case 44. </p> <p>Case stated.</p> <p>The ease involves the construction of the 11th seo. of the statute of 1831, (1 St. Law, 463) coneerning conveyances.</p> <p>The provisions and proviso of of the 11th seo,, examined.</p> <p>Theconstraction to be given to the 11th section.</p> <p>As a prospective act of limitation the 11th section of the statute of 1831 was within the power of the Legislature,tested by either the State or Fedei ai constitutions, so far as it limits the time of bringing suits by femes covert where the right of equity existed.</p> <p>It does not apply to oases where no right of action in the feme ox her heirs.</p> <p>The 12th section of the 10th ait. of constitution ofKentucliy,and application to this case stated.</p> <p>If the Legisla'tare had not the power to pass a retrospective act of limitation, it had no right to ■confer on the Court of Chancery the right to apply such a principle.</p> <p>That part of Che ■constitution of the U. S. prohibiting the passage ■of laws impairing the obligation of contracts applies as well to executed as •executory con-,, tracts.</p> <p>The 1 till section of the statute of 1831, (1 St. Law 450,) so far as it authorizes a Court of Chancery to confirm title in a vendee, of a feme covert who has conveyed by deed which was ineffectual when made, impairs the obligation of contracts and is in violation of the constitution of the U. S. U Sec. Art. 10.)</p> <p>Decisions of 'Pennsylv’a. disappioved.</p> <p>Decisions of Ohio approved.</p> <p>Saterlec vs Matthewsnn, (2 Pet. 412,) cited, but not approved in extenso. A statute which takes from one man property & gives it to another impairs (he validity of the contract by which the properly was held. The Court concur in the mein with Justice Johnson in his dissent from the majority of the Court.</p>

Chancery. Case 45. Case stated. Interlocutory decree of the Circuit Court.. First'answer of James- Clemens, Jr. Amendfed1 Bill. Seeond answer of J. Clemons, Jr. Second amended bill. Third answer of J. Clemens, Jr. Decree of thes Circuit Court,.

Appear from the Garrard Circuit. Chancery. Case 46. Caí* a tried. The construction of the 11th aee. of the «tatute of 1831, as applieable to this case. The mistake of a eleik in his certificate of the time of recording a deed of conveyance clearly appearing by record evidence, may be corrected by the Chancellor. The Chancellor may relieve against mistakes. The Chancellor has jurisdiction, on bill filed by one in possession, to quiet the title to lands so possessed.

<p>Error to the Garrard Circuit.</p> <p>Motion.</p> <p>Case 47.</p> <p>Case stated.</p> <p>Securilyforcosls can only be required of non-resident plaintiffs, or in ejectment the lessors of the plaintiff, and' the defendant is the proper person to demand it.</p> <p>Can one who is 'Surety for-costs require of his principal, security to indemnify him in any <c»se? — Qu.</p>

<p>Error to the Louisville Chancery Court.</p> <p>Chancery.</p> <p>Case 48.</p> <p>The Chancellor will not entertain a bill at the instance of a lessee, to compel . the lessor and a claimant to the leasehold premise» to litigate the vighttothe promises and rent, especially where there -are suor g eireumst an cea inducing the belief that tire lessee obtained the possession for the benefit of the claimant, to the prejudice of the lessors.</p> <p>Nor will the 'Chancellor entertain, in such case, across bill of the claimant, to try in chancery a purely legal right to the premises, which is properly tenable at law.</p>

Appeal prom the Hickman Circuit. Assumpsit. Case 49. Case stated, Facts appearing in proof- The surrender of a claim to a debt- or by a creditor, is a good consideration for an assignment of a note, whether the surrender be to the assignor or to a third person.

Chancery. Case 50. Case stated. The finding of the jury against the will, and decree of the court. A deed procured by imposing upon the credulity of a ieeble minded, illiterate and old man by one in whom he reposed confidence for an inadequate considera t i o n, declared fraudulent and vacated. A deed of emancipation declaned effectual for the purpose.

<p> Distribution. Refunding bonds. Auditors. Decree. </p>

<p>Appeal from the Russell Circuit.</p> <p>Chancery.</p> <p>Case 52.</p> <p>Case stated.</p> <p>First count.</p> <p>Second count,</p> <p>This-ease distinguished, fromthe ease of Hawkins ns The Com’wth. (3 A. K. Marshal 339.),</p> <p>The case of Sta-ton vs Com’wth*, for Gill, stated and recognized as identical ins principle witfo this.</p> <p>Upon the dissolution of an injunction, execution issued for the principal debt, and was placed in the hands of the Sheriff, to whom property was delivered by the defendant in the execution to sell to pay the debt, the Sheriff left the property in. possessionofthe defendant, the property was run off out of the State, and the defendant proved insolvent, the surety in the injunction bond was sued, and paid the debt of the principal.— Held that the Sheriff in an action on the case for the misfeato The TTre tyT bond w§'obylihe misconduct of rendered liable!</p> <p>The right to maintain an action against a Sheriff for misconduct in the management of an execution, is not always limited to the parties to the exe* cution, but exists in favor of any whose legal rights are affected by the illegal act of the Sheriff.</p>

Debt. Case 53. Gase stated. Does the statute authorize a suit brought against an administrator ■who is after-wards removed and the suit revived against the adm’r. de bonis non, to be still continued ag’st. the removed administrator? Qa. If it does, there should be some evidence of the intention so to prosecute it placed upon the record.

Chancery. Case 54. -Cate stated. One partner has no right to divert by his assignment to his separate creditors, any portion of the firm effects to the prejudice of ¿the creditors of the firm. Each partner has a lien upon the partnership effects for the payment of the firm debts, and the firm creditors have a right to be substituted to the lien of the partner in the application and rateabledistribution of the firms effects, in case? of a deficiency.

<p> Consideration. </p>

<p>Error to the Mason Circuit.</p> <p>Chancery,</p> <p>Case 56,</p> <p>The object of Ihe bill and decree of the.eir.cuitiOdurt.</p> <p>An agreement fordelay between the creditor and principal debtor, though without the assent of the surety, does not exonerate the surety, unless it be a binding agreement, upon sufficientconsideiation and enforeible by law. (1 B. Monroe, 322, 325. cited and approved.)</p> <p>An agreement by a creditor with the principal debtor to indulge in consideration oí the note of the principal debtor for part of the accruing interest, whilst the note still carried interest (which was usurious) and the entry of a credit for the balance of such interest on the account of creditor for goods sold due to the principal debtor, without any release of the account, was not such a binding agreement as’released the surety, though made without hia assent.</p> <p>—Being voids* Ble byíhe debtor in part, and being a unit, was not so-far-bindingas to release the surety.</p>

&bt;. €ase 57.. Sirae'atated. The pleadings. One of the trustees to whor® debts have been assigned to pay creditors may give authority to one of a firm of unsatisfied and' prefered creditors to sue for the recovery of an assigned debt for his owív benefit without the assent of the-other trustee.

Assumpsit. Case 58. Decree of the Circuit Court. Objections to the-testimony in the Circuit Court. It is not necessary that a written affidavit should be filed to authorize the Court. to grant a'n order' to take depositions , Secus, where the application is made to the clerk for a dedimus to take a deposition.

<p>Appeal from the Cumberland County Court.</p> <p>Motion.</p> <p>Case 59.</p> <p>Casa stated.</p> <p>A non-resident snaking a motion in the County Court, where costs may be adjudged against him or her, should berequired to give bond and surety for costs.</p> <p>The County CIs. have no jurisdiction to assign dower, except in cases where the husband -¿fad seized, and -the right of dower is admitted or not contested. (iSibb 462, cited and approved.)</p>

<p> Fraudulent gift of slaves by parol. </p>

Appeae from the Montgomery Circuit. Ejectment.. Case 6-1, Case stated. Instrnclions asked by plaintiffs below and refused by the Circuit Court, Instruction given for defendants below. To make out title by a Sheriff,’s deed, it is necessary to show the judgmentand execution under which the Bala and deed were made, but is not necessary to show the character of a possession held under the deed.

Case. Case 62. Any one of several losers at an unlawful game, may, after lapse of six months, Bue for the recovery of the properly lost. A stranger can do so under the aet of 1833; but not the value of the property unless it cannot be had..

<p> Indictment. Emancipation of slaves. </p>

<p> Constables. Official liabilities. </p>

Motion, Case 65, case stated. A surety for costs for a nonresident plaintiff moved the Court to that effect, and had a rule on the plaintiff to give other surety on or before the calling of the cause at the next term.

Chancery. Case 66. Case stated. Two Justices of the Peace of the county where the land lay, and the grantors resided, have authority to take the acknowledgmenlof deeds of femes covert, but their certificates must be under their hands and seals, otherwise it was defective.

<p>Error to the Estill Circuit.</p> <p>Ejectment.</p> <p>Case 67.</p> <p>Ca»e stated.</p> <p>A purchaser of land, under execution is entitled to immediate possession; the defendant in the execution 13 not a tenant or quasi tenant of the purchaser, and therefore is not_ entitled to notice to quit.</p> <p>The vendee of a Chaser of sold by a Sheriff under execution, is entitled to all the Tights of his vendor, and the same remedies to obtain the possession, liis purchase is not within the laws against champerty-</p> <p>That a circuit instrucTthe^nry nc„a!!i or noii'Suitj ana remarked “that evidence entitled' the piain«ot^avaUaWe'erwrrlfbehadbeen. instruction it given» hypothetiiiponV tíiedbeifef of the evidence.</p> <p>In ejectment the on^the —'Lyof tie’ pnw’d^com" menced on the 20ili March, ’44, ■which was before TheWa’\bvSen.ce should be so sustain the verto°de’featit.</p>

Case. Case 68. Case slated. To say that ‘Will-son helcIFoster’s horsewhilst Foster knocked the defendant off his horse, put M¡> hand in his pocket and said the damned old rascal had’ no money, and he would take his tobacco-for his trouble: The one held while the other skinned,’ is not actionable — importing the commission no felony-

Appeal prom the Montgomery Circuit. Chancery, Case 69. Cuse stated. Questions arising in the case. To sustain an attachment in chancery, it is necessary ta show a fraudulent in tentbefore the suing out-of the attachment; to prove it to have originated afterwards -wHil •not-do. 'To authorize a ■creditor to eome into chancery to ask the foreclosure of mortgages and subject the property mortgaged to the payment of his debt, he must have judgment.

Appeal prom the Morgan Circuit. Trespass; Case 70. if the wife com* mit' an assault an* battery inthtCmnf, it lonely hfsTon3 sent and approequaiiy-guiity; e' Husband and wife sued in trespass, assault and battery, though, not so named in the declaratioa if the evidence proves such relation it is no. cause lor airest of judgment.

Pet. & Sum., Case 1\. Case stated. The general rule is, that comparison of hand writing is not eompetent evidence.

Case. Case 72. Avariance in the proof from the day alledged in the declaration waltohavebeen delivered, m a deliver it, ¡safathough the del haTe^been^amended during the trial.

. Chancer??.. Case 73. 'The allegation* -.of complainant’* bill. 'Glarlil-s answer. Snjitii’s.answer. Ramsay’s answer. Decree of the Circuit Court. The assignor of a note is not a necessary party to a bill and attachment by the assignee, to recover the amount oi a note. A debtor coatemplatinga salé of all his estate to his son, on long credits, and transferring his notestohis creditor, justifies a creditor in attaching the propeity under the statute.

Detinue. Case 74. Case slated. A citizen of Virginia determined to remove to* Kentucky started with his property, and died on the way, his family continued the journey, with ther property to Kentucky. HeldthaS the County Ct. of the county where the family located with theproperty had jurisdiction to' grant administration.

Chancery. Case 75. Case stated. Decree of the Circuit Court. Testimony admitted without objection in the Circuit Court, thoughnol of the highest grade,_ cannot be ob-’ jected to in this Court. This Court will presume a grant from the Commonwealth after a possession of AO years, the possessors claiming and holding as owners, (3 Stark 1221s Greenleaf, 50.) A grant has been presumed in IT.

Chancery. Case 76. To decree conveyances is aprominentgroundof equity jurisdiction in cases of partition, hcncsv tlie holders of the legal, title must be parties. When upon' decreeing partition the legal titlfe cannot be at once made, the Chancellor may-secure each in the enjoyment of his part until'd® conveyances can. Be made.

Covenant. Case 77.. Where proof of one fact in the trial of a cause before a jury, 13 necessary to let in proof of another fact, and there is evidence conducing to provethe preliminary fact, the Court shouldjnot generally exclude from the jury such evidence, but leave its weight to the jury- If the fact on which the relevancy of the disputed fact depends, be merely preliminary, and no otherwise essential than as it may lay the foundation for receiving the evidence in…

Motion. 'Case 78. An-offieethas no right to take a forthcoming bond upon the levy of an execution endorsed ‘ino security -of any kind to he taken.” Itmay be a good .-secu•ity to Himself, but not as a statutory'bond. The-Chancellor 'had no jurisdiction to -interfere to stay proceedings upon an execution issued upon a delivery bond, taken'by a Sheriff upon an execution, and endorsed-“no security of any kind to 'be ta-' ken,” a'Courtof law was competent to render full-redress.

Appeal prom the Garrard Circuit. Chancery. Case 79. The Court making distribution of estate undisposed of, and as to which the tes, tator dies intest tate, should not without reason, assume, without allegation or proof, that the testator, had [not done justice, and direétan account of advancements made in order to make the children equal out of property undisposed of by will. A gift or other disposition of slaves previously devised, is pro tanto a revocation of the will.

Chancery. Case 80. A feme covert entitled to a separate estate executed a note as the surety of her son. Held that it ivas \pro tanto■ a charge upon her separate estate in the hands-of her trustee, which might he subjected by the: Chancellor.

Chancery. Case 81. On filing a petition by one who conceives himself inteiested'in the event of a chancery cause, the correct practice is to ask orally of the Court that the matter of it bo considered, and the petitioner be made, a party— otherwise it ■ is not the duly of the Court to take up the subject of the petition until the hearing of the cause. —But if such petition be filed of record, the petitioner should not lose the benefit thereof by failing to require the action…

Covenant. Case 82. Case stated. It is the duty of a Sheriff to make a sufficient levy to satisfy the execution in his hands — but not an excessive levy. He should be governed in this by a sound discretion. If the Sheriff fail to levy, or to malte asuflleient levy, the damafeLed^proporl • {{j®in mount of the ex-suth^has^een the extent of the tiff-

Chancery. Case 83. Casestated, The object oí the bill. A debtor mortgaged property to a creditor who was also a surety tor the mortgagor separately in some cases, and jointly with others in other cases, the mortgage to be void on the payment of the debts to the mortgagee, and satisfying all-the debts in which the mortgagee is surety, and keeping himfreeol expense, themortgagor assigned to the mortgagee and another surety, moneysecurities assumed to be-for the same ob. jeet.…

CS-AN'CERl'. Case 84. 'Case stated, The'cOiinsel of a party who deceives him by false representations on'his part, or who knowingly permits his client to be deceived by the repreSehtatia'n s' ofothers violates the duty arising from that confi«fential relation,- and will not be permitted to avail himself of any contract made under such circumstances.

Chancery. Case 85. A defendant may sell land which he has purchas.ed, though a suit anay be depending to subject it ito thepayment of the unpaid consideration, the ¡purchaser being eubjeet to the •equity o.f the complt’s bill. The-vendorie.maining in possession of land sold and conveyed, is sufficient to put a subsequent purchaser upon inquiry 'as to the payment of the-considera'tion.

Covenant. Case 86, The date of the issue of process is the commencement of a suit— so is the service of notice in ejectment. The date of the subpoenain chancery, which is sued out and returned or placed in the hands of the officer, is the commencement of the suit. The filing of a bill in ehaneery, without suing out process thereon, will not be regarded as commencing a suit.

.Pet; & Sum.. G'ase 87.. Hhe-generaíiulé' ÍBj-thata'partyto the record is not a> competent witness- in a trial at taw — there are exceptions. See tile-case..

Appeal prom the Woodford Circuit. Chancery. Case 88. A purchaser under execution •will hold against the' Tendee byparol of the defendant in the execution.

Chancery. Case 89, Cane stated. Tiie Court will not decree rents when not asked by the pleadings; nor decree rents against a feme covert, for lands of the wife occupied by the husband during coverture, though she owned a separate estate.

Appeal prom the Marion Circuit. Assumpsit, Case 90. Case stated. Counts may be joined in the same declaration on promises made by the executor, ior work and labor done for the testator, with promises made by the testator ; but not with promises made by the executor for services performed to the executor as executor, for which he would be individually liable.

Error co-ram VOBIS. Case 91. Case stated. Fact»1 ih’ the «ase; The1 statu te of 1803, (2 Sl.La.w, 1555,)' requiring notice- of appli«ation- for writs of error cm arm vobis, does not apply to a case where the object of the -writ is to-contest the validity of thejudgment, nor is it necessary in such ease to produce a copy of the bond and. execution..

Chancery. Case 92. Amorlgage to secure one in bis securityshipii for the mortgagor, may embrace suretyship existing as accommodation indorser, and its •efficacy depend opon contingency of the exercise of due diligence by the •creditor, in per-suing the principal, &c. If a-mortgage he made to a surety who is only a-a accommodati o a indorser, and the mortgagor be 'legally proved insolvent, .or the surety becomes liable by use of proper -diligence on the part of the creditor,…

Motion, Case 93. Cas unstated.- Since the statu te of 1810, (2 Stat. Law, 1250,) lire bonds of collectors of county levies are properly made payable to the Commonwealth, (5 Ben. Monroe, 196.) Motions upon the bonds of collectors of county levies, is pioperly made in the nameof the justices of the Goun - ty Court, (1 Stat, Lav, 503; 2Ibid, 1115,) and the statute of 18Í0, authorizing a suit on the bond does not take away the remedy by motion.

Chancery. Case 94. Case stated. Decree of the Circuit-Court. The second section of the statute of 1838, (3 St. Law, 1Í6,) appieable to this case. Ill a proceeding under thestatute of 1838, (3 Stat. Law, 116,)- the power of the Chancellor to subject property to the payment of the debts of the defendant, does not depend upon the actual levy of an attachment, a lien attaches on the property sought to be made subject, on filing the bill and service of process.

Chancery. Case %. Case stated. The equity of a feme covert to have a suitable maintainaneesecured to her out of her father’s estate, does not depend upon the solvency or insolvency of the husband, nor upon the support she and her children may receive .from the husband.

Trespass, Case 96. case stated, Justices of the Courts and adju^ times ihanlllat their quarterly cases mention- and ^th*3 seí tions, (Ses.Acts. If a Justice does Rear civil causes at other times teriy atermslUait may he shown thathedidso under a state of R^the statute!64

Chancery. Case 97. Case stated, The first decree of the Circuit Court. The objectof this bill. The’law of alienation of-estates.

Appeal prom the Si-ielby Circuit. Trespass. Case 98. Case stated'.

Ejectment. Case 99. Case stated. The levy upon and sale of all the defendat’s right, title and interest in land, passes the land itself. The fact that a purchaser of property is apprized of the intention of the vendor to hinder, delay or defraud his creditors, is not conclusive evidence of the the same intention on the part of the purchaser; hut is a circumstance to be left to the jury, that they may determine the intention of the purchaser in mailing the purchase.

Detinue. Case 100. Case slated. Ins tractions of flie Circuir, Ot., given at the instance of each party. ^Theknowledge that'Ve'vendor ten^todefrauá *¡IS creditors, of itseit, fraulutenus^to pureha¡er3 • “u 8Prs-fraudulent partiwSiü°author¡ze u\®esTnrepeUed by -other facts ees showing chaser, To instruct tlie jury “that .fraud cannot be presumed, but must be proved like any other fact,” decided to be misleading.--Fraud may be presumed if there be sufficient evidence of o ther…

OlIilKCEHY. Case 101. Cuse stilted. A son, a trader, made to his father an absoluto deed for his land, intended as an indemnity,which was held up and not recorded for six years, whilst the son enjoyed the land and continued to trade, and became insolvent, when the deed was recorded.

Appear from the Marion Circuit. Chancery, Case 102-. That a party has is°a1goodIgroun A reference to the report of the settlement of an administration account, necessarily implies a reference to the vouchers accompanying the report.

Chancery. Case 103. Case stated. The- Bill and itsobjecti The answers. Decree of the Circuit Court. A petition in the name of the infant by his guardian for the sale of real estate, is a conformity with the statute, and equivalent to a petition in the name of the guardian. The uniting of an adult heir is a valid expression of assent to the sale as an answer would be.

Appeal prom the Harrison Circuit. Chancery.- Case 104. ü surety7 whobtas7 paid usury for his principal,has the right to sue for and reclaim it, unless he has been repaid the money which he paid.

To the Washington Circuit Court. Chancery. Case 105. The case stated, and grounds of equity sot out in the original Bill of Geo. Smith’s adm’r. Answer ofMcKitriclt: and wife made a cross hill ' sMordecaj Hariri and wile. Decree of the Circuit Court against Hardin and wife. The husband •and wife cannot make any contract during coverture to dispose of the wife’s expectancies as heir to her relations, which will ¡bind the wife after his death. Case as between these parties.

Ejectment. Case 105. trh.e .answers. .Actual possession Toy the husband, of the lands of the wife at the time of or during the covertuie, is in general necessary to constitute the husband a tenant by the curtesyafter her death. If an entry is made upon the lands of the wife by the husband, or by another by his authority, or a_ vendee immediate or remote, his right as tenant by the curtesy is thereby consummated.

Chancery. Case 107. Gase stated Hie clause of the will to be construed.. Deeree- of' the-Circuit Court; Errors assigned;want ofjurisdietion. The Chancellor has jurisdiction to decree a specific performance of a will directing slaves 10 be sent to Liberia on their electing to go. The testator provided that if any of his slaves, should become, willing, and give-themselves up to. embark for Liberia, that “he-thereby emancipates all such.

Chancery. Case 108. (Case slated. To prove a win not in existence, it must appear, 1st. That a valid will was made. 2d. The contents or such part as maybe recorded. 3. That though not existing at the testator’s death, had -not been revoked. Evidence examined upon^ the ■due execution .of the ¶ ill. 'By the letter of the statute, the signature is an essential requisite of a will of land or slaves, and it must be complete by signature when attested, Swift vs Riley,(IB.

Chancery: Case 109. ■ Where a'áéfence is ample at law against a guamishee,andhe fails to make it without a valid reason; the Ghanseilor cannot relieve.-

Detinue. Case 110. Case stated. The default óf the defendant in an action of detinue, admits the plaintiff'srightin the property, but not the value al3edged,andajury isnecessarytofix the value of the slave, and damages for detention before judgment*.

Chancery. Case 111. Case stated. Decree of the Circuit Court. A party shall not excuse himself from answering a bill in chancery, by suggesting thathemustsubject himself to a supposed crime or misdemeanor, though the Court will not subject him by his own oath to punishment: Mitford’s Plead. *256.

<p>Error to the Fleming Circuit.</p> <p>Chancery.</p> <p>Case 112.</p> <p>Case stated.</p> <p>Ideal1 perfection is not the rule of decision in human tribunals ; but the standard ot excellence which is attainable by the various classes lo which it may'be applied.</p> <p>In arriving at a conclusion as to the degree .of fault in contests between husband and wife’ in order to determine the right of the wife to separate from the husband and claim alimony, the Court must look as well to the provocation on the one hand as the reciprocal duties of husband and wife, to each other on the other.</p> <p>When the hus« band’s conduct towards the wife is such an habittial course of persecution as to render the bands of matrimony a place of wretchedness & degradation, she may leave him and have alimony.</p> <p>The court should ■retain power to •enlarge or diminish decrees for alimony, / as the circumstances of the husband may indicate to be propxfeX.</p>

Chancery. «Case 113. Case stated, A father-in-law gave a bond to his son-in-law for the conveyance of a tract of land estimated to he worth $1,492 50, one thousand dollars of which was donated to the wife of the obligee,and $492 50 to be paid by the son-in-law; the $1,000 was receipted for expressly as a donation to the daughter, the father-in-law died, title to the land descended to the wife of the obligee and others, heirs of obligor, the daughter against the creditors of…

Chancery. Case 114. The object of the bill. Gregory’s answer and cross bill. Booker’s answer to Gregory’s cross bill. Litsey’s answer. Decree of the Circuit Court.

<p> Husband and wife. Wife’s separate property. </p>

Covenant. Case 116. The confessions of a principal officer mode long after his term of office has expired, are not evidence against his sureties in a suit on the official bond: Green-leaf on Jia. 219,

Mili, Case. Case 117. Case stated. Grounds of opposition to' the «rection of a mill dam.

Appear from the Bath Circuit. Chancery. Case 118. T/ase stated. ífdne represe tit himself to b® a partner, and credit is given upon, the faith of the representation, snob person will be responsible as a partner, whether -acttially so or not. —But representations to on's person that he is a partner, will not make such person, (who i« not in fact a partner,) responsible to another, who has no knowledge of, and did not rely upon such representations. — SmitJb’s Mercantile Law,…

<p>Error to the Jeeeerson Circuit.</p> <p>Assumpsit.</p> <p>Case 119.</p> <p>Case stated.</p> <p>The instructions of the Circuit Court.</p> <p>A wife who is wrongfully turned out ot doors by her husband, carries with her an implied credit, and authority to charge her husband for ne-cessarie3.</p> <p>Those who trust-the wife who has separated from her husband* must look to the grounds of separation; they trust-, the wife oil the-. credit of the husband at their peril, if the separation of the wife he- not justifiable.-</p>

<p>Error to the Muhlenbukg County Court.</p> <p>Dower.</p> <p>Case 120.</p> <p>Gase staled.</p> <p>County Courts have no jurisdiction lo try contested c.L.ims lo dower. They may-assign dower when the claim of the widow to dower is noteontesied, hut in no oilier case: (4 Bibb, 462; 1 J.J, Marshall, 105; ante 232.)</p>

Chancery. Case 121. A deed by a husband in failing circumsta nces conveyinga trust for the wife’s separate use the properly which she was in law entitled as heir lo her father, & •which had not been reduced to the possession of the husband, is not fraudulent. A bill by a creditor for a discovery of assets, will not operate as a lien upon any interest, or right which might have been known by consulting the public records, and which were not specified in the bill.

Motion. Case 122. Case stated. A sheriff who paid to the plaintiff in an execution the amount thereof, having become liable therefor by hi» official defalcation, has ihe right to be substituted to the right of the plaintiff,, snd in the namati oftheplaintiffio. hLpayinentf06'1 A surety in- a* replevin bond is released by the failure of the plaintiff to sue out execution thereon for one year by the 19th section of the statute of 1838.

<p> Insurance. Policy of Insurance. </p>

Chancery. Case 125. Case stated. Whetiiera-conmore Oran''legal tliefíoan^oi ínoney.or lor tlie^fordebt due, it is ™U85.S'1&LU’ —If tbe facts be constitute ausuíhTSCo1ma°wuí' draw the- legal conclusion: 6) Monroe,81-, 7lb. sAa^ up MaT' The Chancellor will regard 1he substance of a transaction rather than its form*

<p> Slander. Words held actionable. </p>

Trespass. Case 126. Case stated. A master per-* mitted his slave to go at large, trade and act as a free man, de«* daring that he had nothing to da with him. Held that the master could not, as to strangers who aie not apprized of the fact that he was a slave* claim the property made and possessed by the slave, or maintain an action against a public officer for levy*» ing on the property of the slave*

<p>Church case. Deed. Trusts.</p>

Pet. & Som. Case 128. Case stated and pleadings. The purchaser of an equity of redemption underexecution against the mortgagor, is entitled to possession, as against the mortgagor, and may maintain ejectment: (8 Dana, 198; 2 £.„ Monroe, 63.) —Bui the-purchaser cannot assert that right by action of ejectment, nor is he entitled to the possession or to the rentuntil the time for redemption has elapsed.

Appeal fom the Fulton Circuit. Detinue, Case 129. Case stated. A vested remainder in the slaves belonging to the wife, does not vest in the husband upon the marriage, & unless reduced to possession during the life of the husband,survives to the wife and not to the representatives ■of the husband. (1 B. Monroe, 152 ; 4 lb. 236; ■5 lb. 556.)

Case, Case 130. Case stated. It is the duty of those conducting boats on navigable streams to uso all reasonable care and effort to avoid damage to, or collision with other boats, whether they be weak or strong; the weakness of the boat injured by collision, where there is a want of due care, will afford no protection to the defendant, but require an increased care.

<p>Error to the Bourbon Circuit.</p> <p>ClMNCKRY.</p> <p>Case 13 T.-</p> <p>Case stated-.</p> <p>A debtor may purchase debts due from his creditor to others at a greater discount than legal interest and demand a set-off to the bill amount with legal interest.</p> <p>' — Creditor may pay off his own note before due, diácountingmore than legal interest, and it will not be usurious, unless done with a view and intent to evade the laws sgainst usury.</p> <p>—But if a purchaser of a note charge the payee after the note becomes due, a greater rate of interest than 6 per cent, and it be paid whether in money, his own notes, the note of a stranger of Hire ain’t, then due, the transaction is usurious, as exacting more than legal interest for forbearance.</p> <p>A oredilor receiving his own ■note due in future, at discount of more than legal < interest in payment of a debt then due from the payor, is usurious.</p>

Casé. 'Vase 132. 'Case stated. Where a proceeding is malicious and unfounded, though instituted before a Court having no jurisdiction, either trespass or case may be maintained: (1 Ohitty, 153;) Morris vs Scott, (21 Wendell.}

Appeal prom the Christian Circuit. Covenant. Case 133. Case staled. Writings are assignable only when, the entire interest of the assignor eanpass to the assignee, as bonds, bills and promissory notes, whether for money or property: Fores’s adm’r. vs Thomosson, (2 Littetl, 167; Boyd V» Jtumsey, (5 J J. Marshall, 42.)

Chancery.. Case 134.. The Banks are authorized by their charters to deal in bills of exchange, and the law has not .fixed the rate of exchange, or limited the discount on., bills purchased by them. It would be impracticable to do so. TlBuT'oToanof “°”uideTp°eiext buyins a bid of exchange m which move than ^Ss1 charged^ oVu°sllldbe Banks may buy foHess^moret theP°Umeedthey have to run, and the risk to be incurred by the uiefmoney1 mar’gHy°of^tis ry.

Chancery. Case 135. It is the right of the wife exeluclusively to have a settlement out of her property, and to be Jenforced at her instance, whether she occupy the attitude of complainant ordef’t. seeking the a'id of the Chancellor; but the wife may agree that the fund shall be paid to the husband, tho’ there are exceptions to this rule: (See 2 Story’s Eq.644.) When the husband and wife unite in a bill for the wife’s property, asking that it be paid to the husband, and it…

Chancery. Case 136. Where several attachments of creditors against the same fund come in succession to the hands of the same officer or his deputies, it is the duty of the officer to execute them in the order in ■which they were delivered, tho’ received by differeftt deputies; and 'though the process be not in fact executed according to that order, the Chancellor having possession of the funds will distribute it according to the rule which should have governed the officer in…

Chancery. Case 13†. Case stated in he bill. - — _ ecTupon^n^iiB answer, In cases of direct, express and continuing trusts of a purely equitable nature, the Chancellor does not apply the statute of limitations ; but where the trust is not strictly of that character, and where the party seeking re'diess has a legal remedy, and a Courloflaweoncurrent jurisdiction, the rule does not apply; the statute will be applied in a Court oí chancery as in a Court of law.

Ejectment. Case 138 A reference to 5 -Dana, 426, for the tacts of the case. Where the evidence is contradictory upon the point involved,it is for the jury to decide, and if the instructions of the Gourthave not been misleading, the verdict should not be disturbed. The record of an issue formed end decided in an action of tiespass, is admissible in evidence between the same parties in the trial of an issue involving the same question: 1 Starfcie, 201; note n. same, 204.

Chancery. Case 139. Case stated in the bill. Answer of* Turpin and Richardson, and cross bill of the latter ageainst compls. and Turpin. — - Makes H. Daniel also a party. Charging cham-perty. SÍ. Daniel’s' answer denying champerty, but claiming by purchase the benefit efthe suit. Decree of the' Circuit Court.

<p> Law of the contract. Days of grace. </p>

Chancery, Case 141. Case stated ani> the bill. The defence set up and answers. Decree of the Circuit Court. The husband of the heir is a necessary party to a bill for the conveyance of land vested in the wife as heir to her father. The relation of father and son is a good consideration to uphold apromise in writing by the former to convey land to the latter and authorize the Chancellor to decree a . specific execution.

Chancery. Case 142, J. C. conveyed his property to W. G. by absolute deed in secret trust, however; for the benefit of (lie wife and child of J. C. W. C. becoming involved, conveyed the property to the widow &c. of J.G.he having died.Held that the conveyance was valid, and the creditors of VV ■ C. could not subject the property so conveyed to their debts. —Bulifthe fraudulent vendee ¡had retained the litJe to the property, it Mould ihave been liable dor his debts.

<p> Executions. Exempted property. Insolvents.. </p>

<p> Evidence. Partnership. Steamboats. </p>

Assumpsit, Case 145. A surety in a replevy bond may maintain, assumpsit ag’st. all those against ■whomtheoriginal judgment was recovered, they all stand as principals to him, whether they •were sureties or oríg¡nafdebt.Uie

<p> Covenants, dependent, and independent. </p>

<p> Steam, boats. Merger. Partners and, partnership. </p>

Case. case •■tatea. It is -avail'd -entry which gives such description of its sha.pe and locality; as will enable others who may desire to appropriate the adjacentiand to ascertain with treasonable certainty what has been before appropriated. It is the terms used in the entry and not the private intention or opinion of the locator, which is to fix the loc$> tion.

Appeal prom the Marion Circuit. Ejectment, Case 149.. A conveyance to “Richard, his heirs and assigns, or in case of the death of’ said Richard'' without lawful' heirs, then to Samuel and his heirs forever, to have and to hold the said tract or parcel of land unto the said Richard and his heirs, or in case of said Richard’s death without lawful heirs, then to the said Samuel and his heirs after the death of said Richard,” reserving an estate for lile to the grantor is void…

<p>Appeal from the Shelby Circuit.</p> <p>Chancery.</p> <p>Case 150.</p> <p>No promise made by a par'y not to plead or rely upon usury is obligatory.</p> <p>Tf-one -execute his -note to a third person, or induce him to buy his note, it is a waiver of any equity against the payment thereof.</p> <p>A partner who is a creditor of the firm, being himself liable for all the debts of the firm, cannot eoerce payment of í¿e jfrafdeots'be all paid, when he may be paid if there be a sufof'the^firm^if not, the loss must be apportioned amongst the firm.</p> <p>A note in the to^Tmembef™ the firm, id _evxdence of an item of indebtedness between the members of the foreiit^a^iaw aceording to its import. Its availability in equity thee«mdUionPof s¡gnJirmtheIf assignee takes it subject to all its imperfections & payee held</p>

Chancery ..'Case 151. The clause of the will of Thos. Wallace out of which the controversy arises. The-codicil-. Tlie'bilT, its allegations and object. Answer of defts. Decree of the, Circuit Court- When the venue in a cause has been changed to a county where one of the parties resides, the Court may remand, but cannot send it to any other county than that fiom which it was removed.

Chancery. Case 152. The will of Cyrus Talbott, the questions presented and decree of the Circuit Court. In the-conniuction of wills the gieat object isto femlo^Vf etho testator.

■Chancery. Dase 153. Depositions having been taken before all the ■proper parties «roese before the Court, were retaken after the proper parties n ere made, in which the defendants refer to & affirm their hist depositions.fleld. that the first depositions might properly be read in connection with theürst.

<p>Appeal from the Louisville Chancery Court.</p> <p>Chancery.</p> <p>Case 154.</p> <p>6 b. Momoe, 6, the facts of the ca30'</p> <p>That which is put in issue and ■decides by the original bill, cannot be the subject matter of a bill of review.</p> <p>Parties to decrees are bound by them until reversed; but may impeach them by a direct proceeding, on-the ground of error, of law or of fact, or for fraud, by petition for a re-error^appeal or btll-ofreview,</p> <p>Where cases are consolidated and heard together,_ the objeot of which is -satisfaction out oí a common fund, the objeot being to settle the claims of the respective claimants between, each ¡other, as well ;as their claims against the 'common debtor -or fund, the decree is binding upon alt the .parties.</p> <p>If in such case any party desire to contest the claim of another, lie should have the opportunity to do so. He may do so by making &ucfo claimant a party to his bill.</p> <p>Parties in consolidated suits are bound to notice thepoints in issue in the oases respectively, and they are bound by the decisions thereon.</p>

<p>Appeal from the Mason Circuit.</p> <p>Chancery.</p> <p>Case 155.</p> <p>Case staged.</p> <p>Decree of the Circuit Court.</p> <p>“Caroline, June Court,, 1793. This deed was aehnowledged and ordered to be recorded. — Test, W. N. — Tritely ecorded, Test, J. P., D C.’.’— Held not to be sufficient evidence ol an aclinowledgment of the deed before a Comí of law of the county in which the grantor dwelt, nor is there any thing to show that such is “the usual manner ofaulhenticating such acts,’’ and there is no seal.</p> <p>The right and interest of a cestui que truslin land, is subject to sale under execution since 1796, and the legal title passes by the sale to the purchaser. The land is subjectto sale and passes by it not a mere equity.</p> <p>A cestui que trust conveyed land, the gi antee died. •Held that his heirsuponwhom •his right under the deed passed, had such an interest in the land as might be sold under.execution.</p> <p>Land held adfendant^in^fhe Ife to sale under t^e^naU2ti-"6 B. Monroe.) ’</p> <p>The land which is held in trust, is subject to sale by the statute to satisfy the debt of cestui que use, notthe mere use, and by such sale the trustee is divested of the legal title, ar;d it passes to the purchaser: East-land vs Jordan, (3 Bibb, 186.)</p>

Appear from the Louisvirre Chancery Court. Chancery. Case 156.

Appeal prom the Louisville Chancery Court. Chancery. Case 157. ?he grounds on ^hich the will Is assailed. Instructions moved in the Chancery Court by complainant. Instructions giv* en by the Ghan* cellor. Further instructtions asked by the complainant, Instructions given on the trial of an issue of competency or incompetency to make a will, should not restrict the jury to inquiries involving memory alone, and not reason and a knowledge of the natural obligation to relatives.

Case. Case 158. case stated., js not brought feIsane™erofOIa contract, but for gence or misthe exercise of belongtag to the relation which arises out of the contract, a non-{he'*'contracting foMer’ofothemt affect the right of recover/. The bailee of a slave' for hire is hound to ordinary diligence in regard to the heolth, safety, &e. of the slave, and responsible for ordinary neglect, as in all cases of bailment for hire.

<p> Wills. Mistakes. </p>

Ejectment. Case 460. Case stated. It is not enor to permit a declaration in ejectment to be amended by adding a demise in the name of the same les■sors for the same land before appearance ; nor to permitan amendment after appearance, if no other title but that relied upon •in the original •demise is to be «offered in 'evidence.

Chancery. Case 161. The establishment of the town of Owingsville tecognized. Decrees against Owings for sale of part of the town lots by the trustees, their sale, &c. The statement of Wieldiffe’s bill filed In 1837. If Ihe decision of the CircisitCouit ■be right, this Court will not reverse, though the reason given by the Circuit Court may be wrong. ^ One acquiring title under a party to a suit, is bound by a decree made in-that suit.

Ciiancery. Case 162. Cosby vs Ferguson, (3 J. J. Man 264,) died, and with approbation. The interest of one of severa? cestui que trustsf may be properly decreed to be sold by the chancellor to pay the deots of such beneficiary.

Chance ry. Case 163. Case stated. A factor or general agen tto sell, is not personally liable for losses arising from sale on credit, where he adheres to the custom of the place where the sales are made, and the purchasers are good at the date of the sales, *nd the principal had reasonable e. Partners ar® each bound to bear their equal part of lass, unless there has been a culpable unfaithfulness in duty to the ah> sent partner.