Volume 9 — Kentucky Reports

<p>On an appeal from a judgment of the general court.</p>

<p>A testator possessing estates in two countries which he devises to different persons, by different clauses in his will, if he couples in the devise of one branch of his estate a direction for the payment of debts, that branch is alone chargeable therewith.</p>

<p>The printed report of a decision of the court of appeals, is not the best evidence of a fact therein stated, and is therefore inadmissible.</p> <p>A record is evidence against parties and privies only.</p>

<p>A court of law may, at a subsequent term, correct the misprisons of its clerk, if the record furnishes the means of correction; but a court of chancery cannot materially alter a decree at a subsequent term—to produce such alteration, a bill of review is the propercourse.</p>

<p> On a writ of error to reverse a judgment of the Shelby circuit court. </p>

<p>A deed executed by trustees of a town, who had not power to convey, yet passes the title, if acknowledged after the acquisition of such power.</p> <p>20 years’ possession, to bar an ejectment, must appear to be continued & uninterrupted-1 Marsh. 62, acc.</p>

<p>On an appeal from a a judgment of the Bourbon circuit court.</p>

<p> On an appeal from a decree of the Fayette circuit court. </p>

<p>Where a conveyance has been made under an enrolled decree, it is sufficient to shew the decree without the other proceedings, secus, if the decree had not been enroll'd. 1 Marsh, 93.</p>

<p>An occupant possessing himself of a part of a tract of land, with intent to take possession of the whole, is possessed of the whole, tho’ it be done without the assent of the patentee, and without having himself any written evidence of right.</p> <p>A possession so taken and held uninteruptedly for more than twenty years, tolls the right of entry of an adverse claimant to the limits of the claim possessed.</p>

<p>A notice to take depositions, which requires exertions much beyond the usual mode of traveling, is not reasonable.</p>

<p>Though the defendant may have removed from the county of his residence at the time the debt was created, yet the stat. of limitations runs, unless pltf is delayed or obstructed in his suit by such removal.</p>

<p>Unless the record exhibits a reasonable notice of taking a deposition, it should be rejected, if the reading it is excepted to.</p>

<p>A judgm't against an heirs is as if for his own debt against an executor de bonis testatoris 1 Mar. 314, acc.</p>

<p> On a writ of error to reverse a judgment of the Garrard circuit court. </p>

<p>It is no cause for a new trial that one of the jurors was not a housekeeper, Vide 1 Marsh. 213, acc.</p>

<p>On a writ of error to reverse a judgment of the Union circuit court.</p>

<p>In a suit against the collector of the county levy, thepl'ts should be the justices in office,not those to whom the bond was given.</p>

<p>Commissioners under the occupying claimant law may be appointed at a term subsequent to the judgment of eviction, and the rendition of possession.</p>

<p> On a writ of error to reverse a decree of the Fleming circuit court. </p>

<p>For twenty years possession to toll the right of entry of an elder patentee, the entry of the junior patentee must be in a part in the name of the whole claim, or of the land in contest.—An entry of a junior patentee, of a distinct parcel, outside of the contest, will not toll the right of entry of the elder patentee, in another distinct parcel.</p> <p>A purchaser holding by a conveyance may controvert his grantor’s title, on the receipt of the deed the purchaser holds adversely to the grantor, and to all the world.</p>

<p>Though the right of entry under an elder patent be tolled by length of possession, yet it is a sufficient defence in ejectment against a claim deriv’d under a junior patent. A right of entry cannot subsist in a junior patentee, when there is an elder grant for the same land. Vide 1 Marshall 4, Shannon vs. Kenny & al. and ib 532, Chiles vs. Calk.</p>

<p> On an appeal from a decree of the Bourbon circuit court. </p>

<p>A defendant in a warrant of forcible detainer not having entered originally as tenant of the plaintiff, (or those whose estate he hath) is not subject to restitution—Vide 1 Mars. Helm vs Stroder, 320.</p>

<p> On an appeal </p>

<p> On an appeal from a judgment of the Lewis circuit court. </p>

<p>A writ of right cannot be sustained after the tenant has had 20 years continued possession, tho' the demandant may have entered after the lapse of that time.</p> <p>Such entry after 20 years adverse possession, is a mere trespass.</p>

<p>A lease subscribed both by land-lord and tenant, need nor, in a warrant of forcible detrainer against the tenant, be proved as to the landlord.</p> <p>A refusal, on the part of the tenant, to restore the possession, may as well be after as at the expiration of the lease.</p>

<p>At common law, actual force was necessary to constitute a forcible detainer, and now a refusal to restore possession after the expiration of the lease, is essential to the maintainance of the warrant.</p>

<p> On an appeal from a judgment of the Franklin cirt. ct. </p>

<p>A party, whose infant children are bound out by the county court, must be previously summoned, or shewn to be out of the jurisdiction of the court.</p>

<p> On an appeal from a judgment of the general court. </p>

<p>A vendor, selling lands without recourse, the title whereof is in another, will be decreed to refund, unless he shews the right of that other to be in him, or a power to pass the right.</p>

<p> On a writ of error to reverse a judgment of the Nelson circuit court. </p>

<p>A plea denying or impeaching the consideration of a bond, should be verifi'd by oath: but if no affidavit of its verity is annexed to the plea, advantage should be taken by objecting to the filing it; not by demurrer.</p>

<p>A defendant in ejectment having had 20 years possession, need shew no written evidence of title to bar a pl’tff—Vide ante, Taylor vs. Buckner, ac.</p>

<p> On appeals from two decrees of the Fayette circuit court. </p>

<p> On an appeal from a decree of the Garrard circuit court. </p>

<p> On a writ of error to reverse a decree of the Bourbon circuit court. </p>

<p> Appeal from a decree of the Bourbon ct. ct. </p>

<p> On appeal from a judgment of the Montgomery circuit court. </p>

<p> On an appeal from a decree of the Cumberland circuit c’rt. </p>

<p> On an appeal from a judgment of the Greenup circuit court. </p>

<p>On an appeal from a judgment of the Mason circuit court.</p>

<p>’Tis error in a recognizance for bastardy to bind the deft, “to abide by and perform the order of the county court to appear,” is all the def't. can legally be bound to do.</p>

<p>To justify a court in opening sale transaction, fraud or mistake should be very apparent. Vide 1 Mars 337, ac.</p>

<p>On a common order confirmed, tis irregular to awear the jury to try the issue."</p>

<p>Incompetent evidence cannot be objected to in the court of appeals, unless it was so in the court below, the objection will be presumed to have been waived.</p> <p>A purchaser with notice of a prior equity, will not be protected.</p>

<p> On appeal from a j'dgm't of the Jefferson circuit crt. </p>

<p>A sale of lands made by an agent, will be presumed to have been made under a power which is lost, from the principal receiving the purchase money, from long acquiescence, and by verbal admissions of the sale.</p>

<p> On a writ of error to reverse a judgment of the Washington county court. </p>

<p>The 1st and 18th clauses of the 8th sec. of the 1st art of the constitution expounded.</p> <p>Where a power is given, the means necessary to effectuate that power is implied: ant. Pendergast vs. Gwathmy, acc.</p> <p>The term "necessary" means that without which another ceases to exist!</p> <p>As the revenue system could exist without banks, they were no necessary to that system, and then establishment within any of estates, not within the legitimate sphere of congressional power, and their location within a state is as if done by a foreign nation!!!</p> <p>Where rights are concurrent with individuals or states, each should exercise them with the least possible inconvenience to the other. Sic utere tuo at aliemum non edas.</p> <p>The state governments are supremely sovereign as to all the attributes of sovereignty not granted exclusively to the national government; the direct taxing power is concurrent and in its exercise the states are sovereign:—As to duties and imposts, the right is granted to the general government.</p> <p>Though the revenue of the nation is not liable to taxation by the state governments, yet if she diverts those funds from their proper destination & applies them to traffic or stock jobing, within a state, they loose their character of revenue, and are as the money of individuals, proper subjects of taxation.</p> <p>Neither the national or state gov’mnt can tax a corporation legally established by either, though they may tax the funds of such corporation found within their boundary.</p> <p>Tho’ the law establishing the bank of the U. S. be thought unconstitutional, yet the state courts are bound by the contrary opinion of the supreme court of the nation.</p>

<p> On Petition. </p>

<p>Tho’a contract for lands be verbal, yet if fair and the price paid, & the vendee has received the title from a third person in whom it rested, chancery will not interfere to relieve a vendor. Vid. 1 Marsh. 166, acc.</p>

<p>The holder of a legal title, though he advises a vendee to purchase the lands of a stranger, will not be compelled to convey to the vendee, unless there is a written contract evidencing the sale to the stranger.</p> <p>A mortgage on lands is nothing more than a security for the debt, and any thing which transfers or extinguishes the debt, transfers or discharges the mortgage an incident of the debt.</p>

<p>On a writ of error to reverse a decree of the Bourbon circuit court.</p>

<p>Where there is conflicting evidence it is the province of the jury to weigh it, and the court will not grant a new trial.</p>

<p> On an appeal from a judgment of the Fleming circuit c’rt. </p>

<p>County levies and militia fines are payable in notes on the Insurance Co. treasury notes of the U. States, or notes on the bank of Kentucky.</p>

<p> On a writ of error to reverse a judgment of the Jefferson circuit court. </p>

<p>Signing is not essential to the validity of an obligation, sealing and delivery is sufficient.</p> <p>A declaration averring the obligation to be sealed with the seals of a firm, is good, and if a farther averment is made that the signing was by one of the firm, that, averment will be rejected as surplusage.</p>

<p> On an appeal from a decree of the Green circuit court. </p>

<p> On a writ of error to reverse a decree of the Jefferson circuit court. </p>

<p>A purchaser using the agency of another and taking the title to the agent to whom no fraud can be ascribed, cannot protect himself by the innocence of the agent if he himself acted with guile.</p> <p>Inadequacy of price is not per se a cause for setting aside a contract, but is evidence that the vendor did not know the value of the thing sold, or that under advantage had been taken of his necessities, and therefore is entitled to great weight.</p> <p>Suggestio falsi and suppressio veri alike vitiate a contract.</p> <p>To use the agency of an innocent 3d person in effecting a contract, when no satisfactory motive for so doing is assigned, is of itself an insignia of bad faith.</p>

<p> On a writ of error to reverse a decree of the Jefferson circuit court. </p>

The case of Madison and al. vs. the Commonwealth, though containing principles of consequence and now referred to, has never been reported, it is thought proper to introduce it. Upon an appeal from a judgment of the Franklin cir't. ct.

<p>The statute of wills does not require to constitute a good will in the absence of attesting witnesses, that it should be in the hand writing of the testator, but that it should be written wholly by him: a will written "wholly" by the testator, but in a disguised hand, is nevertheless good.</p>

<p>A claim to personal property in the adverse possession of another, cannot be sold to invest the purchaser with a right of action in his own name: 'tis a mere chose in action and cannot be sold.</p>

<p>No debt can be created by the purchase of lottery ticket unauthorised by law: a bond given for such consideration is merely void Vide 1 Marshall, 198, Clarke vs. Havens, acc.</p> <p>The consideration of such bond must be impeached by special plea. If such bond be assigned and the assignee is induced to buy or keep it by the representations of the obligor and recourse is lost on the assignor, the liability of obligor is created by his representations and not by the bond.</p>

<p>On an appeal from a judgment of the Jefferson circuit court.</p>

<p> On a writ of error to reverse a judgment of the Ohio circuit c'rt. </p>

<p> On an appeal from a decree of the Jessamine circuit court. </p>

<p> On an appeal front a judgment of the Green circuit court. </p>

<p> On an appeal from a decree of the Bourbon circuit court. </p>

<p> On an appeal from a a judgment of the Nelson circuit court. </p>

<p>On appeal from a jud't. of the Christian c. c.</p>

<p>A purchaser with notice of a prior equity is a trustee and will be compelled to convey.</p> <p>A bill need not be taken as confessed against defts from whom no relief is sought.</p>

<p>Persons entering under one claim and agreeing afterwards to hold under another for a given term, is not liable to a warrant of forcible detainer if he refuses to surrender at the end of the term.</p>

<p>An attachment issued for two causes, one sufficient and the other not, cannot be sustained.</p> <p>A record after judgment can only be amended by itself.</p>

<p> On a writ of error to reverse a decree of the Madison circuit court. </p>

<p>On an appeal from a judgment of the Nelson circuit court.</p>

<p>A party holding the elder title to lands, but permitting his right of entry to be tolled, aided by the chancellor.</p>

<p> On a writ of error to reverse a judgment of the Fayette circuit court. </p>

<p> On writs of error to reverse orders of the court of Woodford county. </p>

<p>No person can appear & answer for infant defendants, unless he has been appointed guardian ad litem.</p>

<p> On appeal from the judgm't of the Mason circuit court. </p>

<p>Though a place is generally known by the appellation of a lick, yet if a spring is there, and an entry calls for it by the appelation of a spring, and contains other distinguishing calls, the entry is valid.</p> <p>An entry calling for an object by one name, known by that name to but few, yet known generally by another name, is certainly objectionable.</p> <p>An indeterminate call for distance, coupled with special locative calls has no influence in the construction of an entry, it is only a mean by which the special locative call is to be found; but it has influence in the absence of special locativ calls</p> <p>An entry at 'a spring on the east side of the trace, to run on both sides of the trace, including the spring, for quantity,” is to be surveyed by including the point mid way between the spring & the trace, in the centre of a square, with lines parallel and at right angles to that part of the road included in the survey</p>

<p>A call to lie on the head of the middle fork of a cr 'k with no pre-eminent head either by reputation or in nature, is bad—Vide Ward, vs Lee, as’ee, fall term 1808—Scroggs vs. Bodley, 1st Marsh 605—Norvel vs. Bodley, ibid. 606, acc</p> <p>A call “for the head of the middle fork” of a stream cannot mean the main fork, unless at the date of the entry the main fork had acquired the reputation of the middle fork.</p>

<p>On an appeal from a decree of the Bourbon circuit court.</p>

<p>On an appeal from a decree of the Henry circuit court.</p>

<p>That copies of entries, surveys, &c are not authenticated by the proper person, cannot be asserted for the first time at the trial; having been filed for some time, they should have been contested in the usual made by deposition.</p>

<p>A survey made and recorded by authority of the owner, is an extinguishment of the warrant, and the act of an officer of the law will be presum'd correct 'til the contrary appears.</p>

<p>On appeal from a decree of the Hardin circuit court.</p>

<p> On an appeal from a decree of the Jefferson circuit c’rt. </p>

<p> On appeal from a decree of the Fayette circuit court. </p>

<p> On appeal from a decree of the Bourbon circuit court. </p>

<p>The deposition of a witness taken after his interest is released, is subject to great exceptions as to credit (tho' it is competent) if whilst he had a subsisting interest he had deposed on the same subject.</p> <p>A person locating lands isnotentitled to a specific int’rest therein by custom —to give a lien on the lands to the locator, there must be a contract to that effect with the owner of the warrant or his agents-. Vide 1 Marshall, 402, Watkins' h’s. vs. Eastin, ac.</p>

<p> On a writ of error to reverse an order of the Woodford county court. </p>

<p>A bill of lading subscribed by the owner of the boat and the master, is evidence against the owner of the goods freighted as to their amount, but not being signed by the owner of the goods cannot be declared on.</p> <p>A demand for freight cannot, in principle, be distinguish'd from the ordinary case of "work and labor done and though a pl'tf may fail in supporting a special count, he may resort to a general one.</p> <p>A person freighting goods may have a lien thereon for the price of his services; but he may waive that lien and resort to his action.</p>

<p>A joint obligee in a bond for the conveyance of lands, dyinglis pendens it is error for the surviving obligees to proceed to a decree without reviving in the names of the heirs of the decedent.</p>

<p> On a writ of error to reverse a judgment of the Garrard circuit court. </p>

<p>A plaintiff and defend’t in ejectment deriving title to distinct parcels from a common vendor, in whom the possession of both parcels bad been united in less than 20 years, though the legal title was in another, from whom the plaintiff procured a deed,the possession of the common vendor is not hostile to the plaintiff, nor will it toll his right of entry.</p>

<p> On a writ of error to reverse a judgment of the Mercer circuit court. </p>

<p>If instructions to a jury in a court below are not hypothecated on the finding of any fact, the court above should assume as proven every fact which the evidence conduced to prove.</p> <p>An assignee of a note or bond rendered negotiable by statute, prefering a petition and summons to debt, & thereby waiving his right of bail, must shew payor’s insolvency by ca sa not by evidence aliande.</p>

<p>It is error to decree costs against a defendant who has been guilty of no fault.</p>

<p> On an appeal from a decree of the Fayette circuit court. </p>

<p>On an appeal from a judgment of the Harrison circuit court.</p>

<p>An heir may maintain a warrant of forcible detainer against the tenant of his ancestor who holds over without first reducing the premises to actual possession.</p>

<p>A note not assignable at common law but assigned before the passage of the act authorising the transfer of such papers, cannot be sued on in the name of the assignee.</p>

<p>Tis not improper to try accused the same permit the answer comes in, the answer confessing the equity of the land, and defend its filing answer without and cannot urge that as error.</p> <p>In a suit against heirs to cooperation be, it is inequitable for another who claims to be a purchaser without notice, and to have acquired the legal estate, by cross bill to be made a deft that should be dismissed but no decree should be entered against him to surrender his title.</p>

<p>On an appeal from a judgment of the Jessamine circuit court.</p>

<p>Officers of government acting under general laws, will be presum'd to have acted correctly 'til the contrary is shewn, but the rule does not extend to agents appointed by the legislature pro hoc vide;—they must shew the propriety of their proceedings.</p>

<p> On an appeal from a decree of the Washington circuit court. </p>

<p> On an appeal from a decree of the Fayette circuit court. </p>

<p>On the sale of a slave by a person having no title, and without warranty, no recovery is necessary to give to the vendee his action; the right to sue originates in the deceit, and the statutes of limitations runs from the day of the sale.</p> <p>A distinction exists between an express covenant of warranty and a sale by one having no right without covenant of warranty, in one case the covenant is not broken without recovery, in the other case the law implies a covenant of title in vendor, and if he had no tale, it is an immediate breach of the implied contract.</p>

<p> On an appeal from a judgment of the Clarke circuit court. </p>

<p> On an appeal from a judgment of the Fleming circuit court. </p>

<p>On a writ of error to reverse a decree of the Fayette circuit court.</p>

<p>On a writ of error to reverse a judgment of the Franklin circuit court.</p>

<p>A jurisdiction to grant probate of a will having once attached, will not be defeated by a subsequent division of the county.</p> <p>The statute of wills requires two subscribing witnesses, unless wholly written by the testator, but may be admitted to record on the oath of one witness, who will be presumed to have testified to every fact necessary to legalize the record.</p> <p>In question of the construction of a will, if the testator evidences an expectation that the devisee is to receive a title from government in his own name, a fee passes without words of inheritance.</p> <p>Where a devise imposes personal charge on the devisee, a fee passes without words of inheritance.</p>

<p>A party whose remedy is ample at law cannot come into equity for relief.</p>

<p>A bill for adjusting land titles cannot be maintained in the single name of one holding an undivided moiety of the land; his co-partner must be a party:—Vide post, Pope vs. Melone.</p> <p>It is error to take a decree against infant defendants before appointing a guardian ad litem.</p> <p>No second deposition of a witness ought to be taken and used in the same suit without leave of the court</p>

<p>A presentment against the county court for failing to fix the tavern rates, is defective if it omits to state that there are taverns in the county.</p>

<p> On an appeal from a decree of the Jefferson circuit court. </p>

<p> On an appeal from a decree of the circuit court of Shelby. </p>

<p> On a writ of error to reverse a decree of the Fayette circuit court. </p>

<p> On an appeal from a judgment of the Bourbon circuit court. </p>

<p>A mere agent is a competent witness to prove any fact incidentally becoming necessary to be proved in the progress of the cause.</p> <p>A vendor without recourse, is a competent witness.</p> <p>A tenant in possession acquirinq possession of the premises under the plaintiff's title, is estop'd to impeach that title, or shew an elder outstanding title in another</p> <p>The plaintiff's lessor having never been seised does not change the relative attitude of the parties.</p>

<p>An order of publication should be inserted two calendar months in an authorised newspaper.</p> <p>A cause should not be disposed of as to one defendant when other defendants, who are interested in the decision, are not before the court either by answer or publication.</p>

<p>The register's deed, purporting to be a conveyance of lands sold for taxes, is prima facie evidence that the proceedings of the register of the register had been regular.</p>

<p> On an appeal from a judgment of the Bourbon circuit court. </p>

<p>Replication (to a plea of the statute of limitation) that a former suit had been brought for the same cause and judgment had which was reversed is bad unless the replication avers that the present suit was prosecuted within one year of the reversal.</p>

<p>In Kentucky no necessity exists of obtaining leave of the court before issuing a scire facias to revive a judgment, though the judgment be ancient.</p> <p>The discharge of a bankrupt doth not discharge a joint obligor.</p>

<p>On a writ of error to reverse a judgment of the Campbell circuit court.</p>

<p> On an appeal from a judgment of the Madison circuit court. </p>

<p> On an appeal from a judgment of the Warren circuit court. </p>

<p> On a writ of error to reverse a Judgment of the Fayette circuit court. </p>

<p>A contract for the purchase of lands cannot be dissolved in part and affirmed in part; but if part of the land is lost, vendee may coerce a title for the part saved, & compensation for the part lost.</p> <p>Where there are mutual demands between parties to a suit, growing out of the same transaction, the chancellor (to prevent circuity of action) should so modify his decree as to adjust the whole matter between them.</p>

<p>On a writ of error to reverse judgment of the Bath circuit court.</p>

<p>The holder of an entry not surveyed in time, and failing to bring himself within the reservations of the law, must be subject to a forfeiture of his claim.</p>

<p> On an appeal from a judgmet of the Franklin circuit court. </p>

<p>If a sheriff under an attachment vs. A. takes the property of B. he is a mere trespasser, and no act of his order of court, divests the right.</p> <p>It was formerly held that detinue would not lie where deft. acquired possession of the goods tortuously, but that doctrine is exploded; the rightful owner may waive the tort, and sue for the detention—the law giving a choice of remedies, pltf. has the election which he will adopt.</p>

<p>A party acquiecing in a judgment awarding a new trial against him, and not excepting, cannot complain in the appellate court, nor avail himself of exceptions taken by his adversary incidentally in the course of the trial.</p>

<p>A tenant disclaiming to hold under his land lord, and refusing to pay rent, is not entitled to notice to quit, but is instantly liable to a warrant of forcible detainer. Vide 1 Mar. 1st, acc.</p>

<p>If an issue is formed on a single plea, which bars only a part of the pltfs action, if def't. proves his plea, a general verdict should be given for him, for the jury are to respond only to the issue only—but if the issue is formed on two pleas one barring the whole action, and the other a part only, and deft. fails in his proof in bar of the whole action but sustains his plea barring a part, then verdict should be plft. and the evidence sustaining the plea answering to part of plaint’f’s demand, and should go in mitigation of damages.</p> <p>An assault and battery may be justified in defence of real or personal property; but except the assailanfuses force in fact, resort is not to be had to violence before request to depart, and then the plea should, in the general be, molliter manus imposuit.</p> <p>Tho’ an assult and battery may be justified in defence of possession, yet a wounding in no case can; but if the intruder in his attempt assaults the possessor or his family, the possessor resisting the attempt may wound the intruder: the plea in this case should specially set out and rely on the assault and not the intrusion</p>

<p>A deft in this state could never be proceeded against to outlawlry Such process is unknown to our law:—even in England outlawry could only be based on the return 'non est inventus.'</p> <p>‘Non est inventus' can only be returned when a defendant has a known place of residence in the county, but but cannot be met with there by the sheriff, who has called & left a copy of the process; or when the deft is commorant in the country without a settled place of residence:—in these cases attachment or proclamation may follow the return.</p> <p>The stat. authorising a pltf on a joint bond on persons residing in several counties to sue forth process to all the counties, may be used or omitted at the election of the pltff.—“No inhabitant” operates an abatement, & pltf. may proceed against the joint obligor served with process.</p> <p>After a joint debtor has plead to issue, it is too late to object that his co. debtor has not been served with process.</p> <p>Dispositions taken on an unreasonable notice should be rejected, and the party ag’nst whom they are taken should not be compelled to retake them:—Confronting a witness is very important, and an adversary should not be exposed to the danger of making a witness retract, but 30 miles a day is not an unreasonable exertion for a party to encounter.</p> <p>Taking a note from one partner for a partnership debt due by simple contract, if the note is of sufficient dignity, is a merger of simple contract: so taking the note of a stranger has the same operation, but in both cases must be averred and proved that the note was received in discharge of the simple contract.</p> <p>In a joint demand vs. two, taking the note of one to operate as a discharge of the joint demand when paid is no discharge of the dormant partner—nor is he discharged by indulgence having been given to the maker of the note till be becomes insolvent, in the case of security and principal, the security is not discharged by indulgence to the principal till he fails, unless the creditor & principal has made other arrangeme'ts without the participation of the security.</p> <p>Taking a note by a note by a creditor, for a debt due by a firm form one of the firm at a credit to be applied in extinguishment of the dem'd when paid is no release to the dormant partner, till the note is paid, his liability yet remains, nor is the creditor bound to sue the maker of the note.</p> <p>After the dissolution of a partnership if one of the partners continues to deal with a former creditor of the firm, and makes payment to the former creditor, the creditor may apply the payment in discharge of the individual debt, and not to the debt due by the firm.</p>

<p> On an appeal from a judgment of the Breckenridge circuit court. </p> <p>The counsel for the appellee moved the court for a rehearing, which, at a subsequent day, was overruled, and the foregoing opinion ordered to stand unaltered.</p>

<p>A vendor of lands has a lien thereon for the payment of the purchase money, unless he waives it by some of his own.</p> <p>This may be done by receiving from the vendee an order on another, and pursuing the debtor so negligently as to endanger he debt due vendee.</p>

<p>A deed of conveyance from heirs, purporting to pass only the right they may have, and not of a certain specified tract, places the vendee not in the favored attitude of a creditor or puchaser, but only in the shoes of the heirs; if the heirs cannot recover, neither can their vendee.</p> <p>The statement of a valuable consideration is indispensable to a deed of bargain and sale, but its adequacy can never be questioned between the grantor and his heir and the grantee; creditors and purchasers alone can throw that point in issue.</p> <p>The lessor of pltf in ejectment cannot aver or prove that there was no consideration for a deed against which he claims, where one is expressed, but he may shew the consideration was vitious, and deft may prove by evidence de hor the deed that the consideration was legal, though different from that expressed Vide 1st Marsh. 582, acc</p> <p>A bond for the conveyance of land given on a gaming consideration, imposes no duty on the obligor; but if for a valuable consideration, it comes into the hands of an innocent purchaser, & the obligor conveys to him, the obligor, his heirs, or those representing their interest, cannot question the consideration.</p> <p>A bond given to the lender on usurious considerations, is void, but if to another not privy to the usury, and for a just debt due by the lender, the bond is valid—and so of a bond given for money won at play.</p> <p>In both cases the consideration is the money justly due to the obligee, and not the money lent or lost</p> <p>The Virginia statute against gaming only vitiates deeds, &c. in the hands of the winner, or those who may receive a conveyance for the use of the winner.</p>

<p>If a judgment be rendered on a declaration containing substantially a good cause of action, it will not be reversed because of informality.</p> <p>The acts of a pl’tf cannot be given in evidence against a deft with intent to shew that deft had broken his covenant.</p>

On an appeal from a judg'nt. of the Scott circuit court. The counsel for the defendants petitioned the court for a re-hearing; but at a subsequent day, the court overruled the petition and ordered the foregoing opinion to stand unaltered.

<p>Where stipulations are to be performed by both parties to a covenant, the conditions are either dependent or independent; where they are dependent the party in whose favor they are introduced, need do no act till the condition is performed, if the condition is not performed he has his remedy by action for the breach, and may also withhold the consideration and apply it to his own use.</p>

<p>A mortgager applying to redeem & failing to pay the mortgage money by the limited day, shall be dispossesed, & the mortgagee secured in possession.</p> <p>A mortgagee refusing to restore the mortgaged property on tender of the mortgage money, should be answerable for accidents thereafter happening the property; but if a slave be the subject matter who was laboring under a malady (of which he dies) at the time of the Mortgage & tender, the mortgagee shall be discharged.</p>

<p> On a writ of error to reverse a judgment of the Warren circuit court. </p>

<p>A bill in chancery should alledg the case so precisely as to enable the chancellor by inspection to determine if he has jurisdiction, and decide on the proper decree.</p> <p>A defective bill may be aided by the admissions of the answer.</p> <p>If damages are recover’d for a partial breach of contract, it is not proper for a defendant to apply to chancery for an allowance to the value of the part of the contract which has been performed, his remedy is at law.</p>

<p>In a writ of error coram nobis if the plaintiff assigns an error amounting to non est factum, it should be verified by oath, and the clerk’s certificate of the alteration of a forth coming bond is void.</p> <p>A sheriff returning a forth coming bond as forfeited, it will be taken as true till the contrary appears.</p> <p>It is not irregular to unite two executions between the same parties in one forth coming bond, provided the sheriff distinctly states the amount of each, and on forfeiture of the bond, the clerk should issue distinct executions.</p> <p>'Tis irregular in a writ of error to blend errors in fact and errors in law; but that alone will not vitiate if pl't'ff waives errors in fact and relies on errors in law.</p>

<p>To transfer jurisdiction from a court of law to a court of equity because of a discovery sought, the discovery should rest in the knowledge of the deft. alone, & be averred in the bill.</p> <p>An innocent purchaser without notice is not bound to make any discovery to his prejudice.</p> <p>Where a compl’t. demands a discovery to which he has no right, the discovery, though made, does not bring with it the right to relief.</p>

<p>A writ for a joint assault may correctly be sent to different counties, where the defendants reside in different counties;</p> <p>The practice is correct to require parties to be ready with their pleadings at the calling of the cause.</p> <p>A plea justifying a wounding in defence of the possession of a close, is inadmissible.</p> <p>Circumstances calculated to enhance or diminish damages in an action of assault and battery may be resorted to by the parties.</p>

<p>On a writ error to reverse a judgment of the Scott circuit court.</p>

<p> On an appeal from a decree of the Fayette circuit court. </p>

<p> On an appeal from a judgment of the Cumberland circuit court. </p>

<p>Mortgager alleging that the mortgage money has been paid, can properly apply to equity to decree a reconveyance, and the power of adjusting the accounts of the parties follows as an incident.</p> <p>Courts of law and equity have concurrent jurisdiction in maters of account.</p> <p>Where the parties have settled their accounts without error or fraud and struck the balance, the chancellor for has no jurisdiction.</p> <p>Where a mortgagee or trustee mortgages the estate himself, no allowance is made for his trouble—Interest on the mortgage money is all chancery will decree.</p> <p>Compound interest is not forbidden by the statute against usury, but it is held to be iniquitous, & chancery will not decree it, tho’ agreed to by the parties.</p> <p>Interest is a compensation for the use of money, rents a compensation for the use of lands—compound interest (though agreed to by parties) will never be allowed;—so neither will interest be allowed on rent in arrear.</p> <p>A mortgage in possession is liable for rents received, but as he can receive no compensation for services, he shall not pay interest on the rents received; the interest will be set off against the trouble.</p>

<p> On a writ of error to reverse a judgment of the Henry circuit court. </p>

<p>If because of the misprison of the clerk below a record be brought up, against infants, in which no guardian ad litem appears, the decree must be reversed; but when remanded, if the misprison appears, the court may proceed to decree on the answer of the guardian formerly appointed.</p> <p>An infant deft, arriving at age (lispendens) has a right to file an answer, in chief, but a mere petition suggesting that fact, and unaccompanied by an answer, should not arrest the progress of a cause.</p> <p>An owner of an entry, surveyed after the time for surveying entries generally, coming into equity for relief must shew he has complied with the law, or comes within some of its reservations.</p>

<p>A contract will not be decreed specifically if there be no mutuality id est—if both parties cannot demand an execution neither shall be favored.</p>

<p>The maker and endorser of a ante are at common law several and at com law cannot be united in action—but the law merchant makes theme and the note having been negotiated at bank, it ranks as a foreign bill, and the drawer and endorser, by the bank law, are joint. Vide 1 Marsh 464, acc.</p> <p>That a note is endorsed to the bank, and that the bank passes it, are facts from whence it may be fairly infer’d that the note has been negotiated.</p>

<p>Where there is opposing evidence the court will not grant a new trial, nor will they grant it because of the discovery of evidence touching a fact which was before jury.</p>

<p>An attachment will be quashed if is sued before the bond be given, tho’ on the same day. Proceedings under this statute must strictly pursue the statute.</p>

<p>A compl’t cannot take a decree ag'nst one of several defend’ts unless all the defendants are before the court-tho' one deft. who has answered may have a trial as to him before the other defts are before the court, and the decree must be a dismissal without prejudice nisi.</p>

<p>In assault and battery, evidence of provocation on a former occasion should not be received.</p>

<p>On a writ of error to reverse a judgment of the Bourbon circuit court.</p>

<p>A party who consents to the revival of a suit in the name of another as executor, is estoped afterwards to deny the executorship.</p> <p>One of two ex’ors, who is also a legatee of the right to elect whether she will hold the goods in her fiduciary or individual character:- having e her individual possession, & exercised acts of ownership, is ev-idence that she took them in her own right.</p>

<p> On an appeal from a judgment of the Montgomery circuit court. </p>

<p> On appeal from a judgment of the Franklin circuit court. </p>

<p> On an appeal from a judgment of the Montgomery circuit court. </p>

<p>Where there are mutual covenants to be performed simultaneously, pltf. must aver performance of his part, or a readiness to perform; but if from the covenant it appears that pltf has executed a part of his duties, he need not aver the performance or offer to perform the remaining part of his duties, the action lies without it, and deft his remedy another action for damages because the residue of pltfs duties have not been performed.</p>

<p>On an appeal from a judgment of the Harrison circuit court.</p>

<p>What is admitted by the pleadings need not be proved.</p> <p>Where a warrantor admits a loss of the land sold the surveyor's report is competent evidence of the quantity.</p> <p>An ancestor selling lands, if the heirs by deed promise to convey, it is no waiver of any right conferred on vendee by the bond of the ancestor.</p> <p>Though a bill claiming compensation for lost land may alledge the loss to be less than it really is, compl’t shall be relieved according to the real and not be confined to the computed loss. 1 Mar. 326, acc.</p>

<p>On an appeal from a judgment of the Bourbon circuit court.</p>

<p>A plt’ff is competent to prove the loss of a paper on which his claim depends, and thereby introduce a copy.</p> <p>Where, by the terms of a lease its duration is limited, a tenant has no right to require notice to quit.</p> <p>A tenant receiving possession under a land lord, can never controvert land lord’s title.</p>

<p>A chancellor should not decree a verbal contract by which an obligee agrees to a discount of his contingent future liability, if land sold is lost, in discharge of a present duty of the obligor—because it is verbal, and because it is executory, & depends on a future event which may never happen.</p> <p>A chancellor cannot set off an unliquidated land contract against a judgment at law.</p> <p>A chancellor cannot revise the errors in law of courts of law—another tribunal is provided for that purpose.</p> <p>An assignee resorting to equity for a specific execution ag’nst an obligor, should bring his assignors before the court.</p>

<p> On an appeal from a judgment of the Bath circuit court. </p>

<p>All persons circulating a slander are responsible therefor, nor is the generality of the report a justification, but as malice is the git of an action of slander, any circumstances which go to extenuate the malice, should go in mitigation of damages.</p>

<p>On an appeal from a judgment of the Henderson circuit court.</p>

<p> On appeal from a judgment of the Montgomery circuit court. </p>

<p>Three witnesses (if so many are called) should be allowed to each incidental fact conducing to establish the issue, tho' the fact itself be not directly in issue.</p> <p>Three witnessess should be allowed if called to assail the credit of an adversary witness.</p>

<p>To justify the establishment of a ferry across the Ohio, the applicant must own the land on the Kentucky shore.</p>

<p> On appeal from a decree of the Bath circuit court. </p>

<p>A new trial should not be granted because of the discovery of new testimony, if that new testimony only goes to discredit a witness sworn on the trial, and the fact known toothers than the new discovered witness.</p>

<p> On an appeal from a judgment of the Logan circuit court. </p>

<p>A continuance should not be granted because of absent witnesses, residing out of the county, unless the affidavit states what the witnesses will prove.</p> <p>A continuance should not be granted against a non-resident, tho' before issuing the writ he fails to give security for costs; if he gives such security at the calling of the cause, it is enough.</p>

<p> On an appeal from a decree of the Fleming circuit court. </p>

<p>Seven years adverse possession in a junior patentee bars an elder patentee under the stat. to compel the speedy adjustm’t of land claims —unless the elder patentee brings himself under some of the reservations of the stat.</p> <p>On a joint demise by nine, seven only of whom have title, none can recover.</p>

<p>If a trustee purchases in a claim adverse to trust estate, he purchases for the benefit of the cestui que trust.</p> <p>If an ex’or compounds debts for less than the nominal amount, it is for the benefit of the creditors or distributees.</p> <p>A man holding half a tract of land in his own right, & half as trustee for another, and buying an adverse better claim, acts for the joint benefit of himself and his cestui que trust, but the latter must refund half the sum paid, with interest.</p> <p>A man so holding title, may relinquish to a valid opposing title; but he must shew the superiority of such opposing title, or on a division between himself and his cestui que trust, he must take the land relinquished in his half.</p> <p>The solemnity of a deed implies a consideration, & if omitted to be expressed in the deed, the omission may be supplied by averment.</p> <p>In dividing lands between two persons, one of whom has had the possession, the other only an equity, they are to be considered as tenants in common; and if improvemnts made by the possessor is alloted to other, he should pay the improver therefor, but the improver should pay rents for the land.</p>

<p>On an appeal from a decree of the Jefferson circuit court.</p>

<p>An entry otherwise valid will not be vitiated by containing a call to "exlude other legal prior claims.”</p>

<p>Where a tract of land lies in two counties, a deed conveying it may be recorded in either county.</p> <p>By the act of 1798 "concerning champerty and maintenance," a deed of bargain and sale conveys the title, though possession be adverse.</p> <p>A deed purporting to be a release, if made on valuable consideration, will operate as a deed of bargain and sale.</p> <p>An alienee may maintain a writ of right on the actual seizing of his alienor, tho' alienee was never seized.</p>

<p>An entry having a specific beginning (and a base line between certain other claims of persons expressly named) cannot be sustained, unless those claims are competently shewn: tho’ those claims are not necessarily locative, they are certainly meant to be avoided, and must therefore give shape to the survey: perhaps may embrace the contested land.</p>

<p>Locations on removed certificates under the laws appropriating the vacant lands of the commonwealth, must be made with the county court before they are entered with the surveyor.</p>

<p> On an appeal from a decree of the Garrard circuit court. </p>

<p>A party uselessly swelling a record, by introducing irrelevant and improper matter will be censured by the court, and subjected to costs.</p> <p>On questions of notoriety, negative testimony is entitled to peculiar weight.</p>

<p> On an appeal from a decree of the Bourbon circuit court. </p>

<p>On an appeal from a judgment of the Muhlenburg circuit court.</p>

<p>On appeal from a judgment of the Grayson circuit court.</p>

<p>Exceptions to the opinion of the court below will not be notic’d unless they state the point in which the error is said to exist. vid ante Taylor vs Mayo, acc.</p> <p>When there are independent covenants and the duty of a defendant does not depend on a previous or concurrent act to be done by plt'ff he need not aver performance.</p> <p>Even independent covenants, if the covenant of the plt'ff formed only a part of the consideration of the cov'nt of the defendant. The plaintiff need not aver performance. The deft. is bound to perform, and his recourse for plaintiff's failure is by separate action. A plea in such a case traversing the plt's performance is immaterial.</p>

<p> On a writ of error to reverse a judgment of the Clarke circuit court. </p>

<p>A submission of dispute to arbitrators by hand, without an order of court, must be tested by maided by any statutory provisions.</p> <p>A dispute for lands is, at common law, an arbitrable matter & the award, so far as it is within the submission, is conclusive between the parties as to every point decided by the referees.</p> <p>,</p> <p>The points decided by the arbitrators need not be recited in the award, provided the submission i sufficiently comprehensive to give the referees jurisdictions evidence abunde may shew what, points were decided.</p> <p>A submission “of all matters in dispute" is sufficiently precise to sustain an award made under it.</p>

<p>On an appeal from a judgment of the Nelson circuit court.</p>

<p>The heirs of a lager who was entitled to a donation lot under the act of 1779 may coerce a title from the trustees, if there be any unappropriated lot.</p> <p>Trustees cannot urge the lapse of time against the cestui que trust.</p>

<p>An elder patentee entering on an interference, before the entry of his adversary, is in possession to the extent—and the subsequent entry of the junior patentee is an ouster only to the extent of his close.</p> <p>Possession is sufficient to maintain trespass ag'st, a stranger, but is not so against one having title</p> <p>Tho' a junior patentee having been possessed of lands more than 7 years, may have acquired title to his i closure, yet that does not give him title to lands entered upon but for two years.</p> <p>Rails made of timber growing on an interference, belong to the proprietor of the soil: the matter and the quality is the same.</p> <p>But if by the labor of a wrong doer, the crude articles changed to a subject of a different species, the right owner looses his property, and must seek compensation in damages.</p>

<p>On an appeal from a judgment of the Palaski circuit court.</p>

<p> On appeal from a judgment of the Fayette circuit court. </p>

<p> On an appeal from a judgment of the Mason circuit court. </p>

<p>A grantor by deed, with special warranty, is competent to prove is execution, if the subscribing witnesses are out of the state, and the deft. does not claim thro' the grantor</p> <p>In a contest for own lots, both parties claiming under the trustees, the deft is estoped to deny the right of the trustees, or to set up an outstanding title.</p> <p>An unrecorded deed passes the title except as to creditors and purchasers.</p> <p>On marriage the husband acquires an estate for his life on the wife’s lands, and if he sells them, tho’ her inheritance does not pass, (unless the statuate is pursued) yet an estate during her life passes, and grantee may maintain an ejectment.</p>

<p>An ejectment on a joint demise by husband and wife, when the title was in the husband alone cannot be maintained.</p> <p>An ejectment may be maintained on the demise of the husband for the lands of the wife.—Vid an e M’Clain vs. Gregg. acc.</p>

<p>In appeals from the judgments of justices, an appeal bond and security is indispensable; which must be executed within 20 days from praying the appeal, or the appeal be dismissed.</p> <p>On appeals no advantage can be taken of irregularity before the justice.</p>

<p> On appeal from a judgment of the Woodford circuit court. </p>

<p>On appeal to reverse a decree of the Montgomery circuit court.</p>

<p>The ordinance establishing territorial governments N. W. of Ohio, secures freedom to all slaves whose master removes with them, and settles in such territory.</p> <p>If a right exists it may be coerced, whether acknowledged or not.</p> <p>The registry of a slave under the municipal law of Indiaana, & agreeing to accept the temporary servitude of such slave, is an admission of his freedom, and the former owner and his vendee is estoped to deny it.</p> <p>Whether an agreement between master and servant, securing to the former the temporary services of the latter, be assignable is very questionable: but need not be decided where the issue is formed on the question of slave or no suit.</p> <p>A person of color entitled to freedom by the municipal law of any state where he has been domiciled, may prosecute his right in any other state.</p> <p>The ordinance applies to the slaves of residents alone, no to those of sojourners or travellers.</p>

<p>On appeal from a judgment of the Breckinridge circuit court.</p>

<p>Under the occupying claimant law of 1812, rents are chargeable from the rendition of judgment or decree in the court below, though such judgment &c. be suspended by appeal.</p>

<p>If in a contest for lands the compl’nt she is an equity under an executory contract, while the fee rests in another, he sho’d before the decree, procure the legal title, or a decree for it, simultaneously with the decree in chief.</p>

<p>A contract that should be decreed specifically, must be certain in all its parts.</p> <p>A bill in chancery should so certainly set forth the compl't's case as to enable the chancellor at once to determine on the appropriate remedy; but where relief is sought on a lost paper, a party may be permitted to mistake his case, and derive any aid he can from the answer.</p> <p>The allegations of a bill not under oath is not evidence against a complainant.</p> <p>A party applying for a specific execution of a land contract will not be compelled to take lost land—but if part of the land described in the contract be lost, obligee has the election to take the safe part and go for damages as to the lost land, or he may refuse the land saved and go for damages for the whole.</p> <p>If the loss of land be not imputable to the vendor, the criterion of damages is the value of the land at the date of the sale, with interest from the time the purchase money fell due.</p>

<p> On appeal from a judgment of the Montgomery circuit court. </p>

<p>On appeal from a decree of the Madison circuit court.</p>

<p>On a writ of error to reverse an order of the Nelson circuit court.</p>

<p>A defendant conveying the subject matter in dispute lis pendens and without reason, does not thereby, render himself a competent witness, tho' he takes a bond to indemnify him from costs.</p> <p>In an injunction despensing the payment of money, the security of the complainant tho' not other wise interested, and no party to the injunction is not a competent witness for his principals.</p> <p>Chancery will enforce contracts that are fair an certain, and it will avoid those which are fraudulent or built on mistake, but never Miter or modify them.</p> <p>In executed contracts where lands are sold in gross, no allowance will be made for express or deficits, not so executory contracts, relief will be granted when the deficit was latent.</p> <p>When a decreee is passed, ordering infants to convey, the conveyance should be made by a special commissioner, a by their guardian</p>

<p>To maintain trespass quare cansum fregit possession of the premises, must be in the plaintiff but evidence conducing to shew such possession, should be left to the jury, and not judged of by the court.</p> <p>A tenant taking possession of a part of a tract of land by certain described limits gives to the landlord possession only to the extent of the leased premises, but if the lease has no defined boundary, the possession of the landlord is co-extensive with the bounds of the tract, & a subsequent lease of a certain part by bounds does not defeat the old possession, a def't. in trespass cannot defend himself by shewing an older outstanding patent, unless there is a privity between def’t out-standing patentee.</p> <p>An alledged surprise in this, that the presiding judge had been counsel for plain’t & defendant did not expect he could sit, and therefore did not prepare himself, is not a sufficient cause for a new trial, prudential motives may prevent a judge formerly counsel from sitting in a cause, but sitting or not is discretionary with the judge.</p>

<p> On appeal from a judgment of the Gallatin circuit court. </p>

<p>After verdict and judgment for def’t on evidence conducing to support his plea, tho’ not of the most conclusive sort, no new trial should be awarded.</p>

<p> On appeal from a judgment of the Barren circuit court. </p>

<p>On an assigned obligation, pltff. omitting to sue forth a casa for five months after the return of the fi fa is an unreasonable delay, & as a casa is indispensable, the assignor is discharged from his liability.</p> <p>Certificates of debtors’ insolvency is evidence only against the ptff. in execution under which it was procured, & his privies.</p>

<p>Depositions tak'n b'tween the same parties and in relation to the same matter but in a former suit ought to be used in a new suit.</p> <p>A bill praving a rescision of a sale of a slave on account of a fraudulent concealment of his state of health will not be decreed if the disease was of that hidden character as probably to have escaped the notice of the vendor.</p>

<p>The merits of an equity once decided on by a court of competent jurisdiction can never be retried (except appellately) between the same parties.</p> <p>Commissioners to ascertain rents &c. not having been appointed on rendition of judgment in eject. gives the chancellor no jurisdiction, the remedy is exclusively at law, by an order nunc pro tunc.</p> <p>That a pltf. in ejectment has recovered more land than he is entitled to, is a matter triable at law & cannot be made a question in chancery, unless strong reas'ns are shewn.</p> <p>A compl. on whom the issue is thrown by the defs' answers cannot obtain relief, unless he makes out his case very clearly.</p>

<p>A vendor of personal property delivering possession of the article to vendee (who sells to another) looses his lien on the property for the price, altho' vendee may have become insolvent.</p> <p>An act which is to be performed subsequently to another act, cannot be construed to be a condition precedent.</p> <p>Law and equity have concurrent jurisdiction in enforcing liens.</p> <p>In case or consignment, consign’r has a lien on the goods for the price while in the hands of consignee, or may retake them while in transitu if consignee is insolvent but the sale of the goods by the bankrupt consignee destroys the lien, for he who trusts most must be the sufferer, in the event of a loss.</p> <p>An assignee of a note is not answerable to an equity arising between obligor and obligee subsequent to the assignment.</p> <p>A witness being made a def't. does not preclude, his co-def'ts. from his evidence, if he has no intererst in the contest.</p> <p>When a party’s claim to property is legal, but by the acts of his adversary recourse is properly had to the chancellor, the decree should be for so much only as would have been given by law.</p>

<p>On an appeal from a judgment of the Franklin circuit court.</p>

<p>A person whose lands are sold by an agent, is a neces’ry party to any bill bro’t for relief against the sale even tho’ the bond for the considration be payable toth' agent.</p>

<p>A plea impeaching the consid'ration of a writing must shew a total failure, a partial failure is no bar.</p>

<p>In trespass where no title is in issue the ierdit very small no. new trial will be granted tuo' the testimony in not perfectly satisfact'ry, vid Ante Smith an infant vs. Suber Acc.</p>

<p>On an appeal from a judgment of the Jefferson circuit court.</p>

<p> On appeal from a judgment of the Hardin circuit court. </p>

<p>Appeal from a judgment of the Fayette circuit court.</p>

<p> On appeal from a judgment of the Montgomery circuit court. </p>

<p> On appeal from a judgment of the Gallatin circuit court. </p>

<p>Though at common law an unsealed note might be given in evid nce in support of a general indebilatus assumpsit, the law is changed by the act of 1811, exalting such papers to the dignity of specialties, the declaration must be founded on the writing.</p>

<p> On appeal from a judgment of the Harrison circuit court. </p>

<p>On appeal from a judgment of the Bourbon circuit court.</p>

<p>Persons purchasing lands decreed to their vendor, but for which no conveyance has been made, may properly apply to chancery to have the benefit of the decree, and compel a conveyance to themselves</p> <p>In a bill of review to correct a mistake in a former decree, relief will not be granted, if the fact in which the mistake is supposed to exist was directly in issue in the former suit, and the mistake subject to detection by reasonable diligence.</p>

<p>A court of equity will always compel a party to do equity before any relief is granted to him.</p> <p>In making partition between tenants in common, if an equal division cannot be made without allotting the improvements made by one party to the other, he who gets the improvements should be made to pay for them, but should be allowed rents.</p>

<p>Two distinct decrees rendered at different terms, tho’ in the same suit, cannot be embraced in one writ of error.</p> <p>On rescinding a contrac, the law implies that each, party is to be placed in statu quo, and it lies on the party resisting this inference to make his case clearly cut.</p> <p>If conveyance be made of a tract of land after a previous sale of a part, the option devolves on the second purchaser to keep the part he can get, and go for the part before sold, or he may reject the whole & seek entire compensation.</p> <p>Although parties to a deed cannot impeach the consideration expressed, yet they may shew it was paid in property and not in money.</p> <p>If two undivided moieties of a tract of land be purchased at different times, and by different contracts, tho’ one contract may be vacated and dissolved, the other, if fair, should stand and be decreed.</p>

<p>In an action on a protested bill of exchange, and judgement by default, the days of presentation and notice of protest are immaterial, and may be proved to be different from these alledged; an avermen that the bill was duly protested & due notice given, is good but the proof must shew those things to have been done in reasonable time.</p> <p>Debt lies on a protested bill, and no consideration need be alledged; the law implies it.</p>

<p>An infant suing by her next friend, and suffering a non-suit; is liable as an adult to judgment for costs; the next friend is also answerable for costs, but is to be rendered so by attachm't not judgem't</p> <p>Though a judgment under which land is sold be irregular, yet the sale under it is valid, if the other proceedings are correct.</p>

<p>On an appeal from a judgment of the Gallatin circuit court.</p>

<p>On appeal from a judgment of the Scott circuit court.</p>

<p>On appeal from a judgment of the Scott circuit court.</p>

<p>A motion as in case of a nonsuit partakes of the nature of a demurrer to evidence, and admits the verity of every fact which the testimony conduces to prove.</p> <p>After a paper is permitted to go to the jury without exception 'tis too late to object to its authenticity in the court above.</p> <p>An endorsee of a bill of exchange, or note negotiable in bank, may sue and endorser on the endorsement alone, without averring a consideration—the law implies one; nor can the endorser question the endorsement but on oath.</p> <p>If reasonable notice of the dishonor of a bill or negotiable in bank, be given to one of many joint endorsers, all are bound by it.</p> <p>Notice of a protest must go by the first mail after the protest.</p> <p>What constitutes reasonable diligence in giving notice of protests, is matter of law to be decided by the court; But the speed used in exercising this diligence, & whether the nearest roads are travelled, are facts reposing with the jury.</p> <p>A declaration founded on endorsements must recite the endorsements truly—immaterial variance is fatal.</p>

<p>A debtor procuring a third person to be substituted in his place, & procuring also the creditor's receipt, is absolved (to the amount) from the debt, and the third person failing to comply with his engagement to the creditor, cannot revive the demand against the original debtor.</p>

<p> On an appeal from a judgment of the Grayson circuit court. </p>

<p>On a writ of error to reverse a judgment of the Shelby circuit court.</p>