v. HUGHES, all claims and demands for the said land, and for the injury aforesaid. And the Plaintiff avers, that he has always MOORE, kept his promise aforesaid, and has been at all times ready and willing to do every thing on his part to be done; and afterwards, viz. on, &c. a, &c. offered to perform the agreement on his part, and the Defendant then and there refused to perform, &c. whereby the Defendant became liable, &c. and being so liable, promised to pay, &c. 3. The 3d count stated, that whereas the Plaintiff, by virtue of a certain land warrant issued, &c. on the 26th of September, 1783, duly located by entry on the 7th of December, 1783, and duly executed by actually survey, duly made on the 28th of November, 1796, a plat and certificate whereof, had been duly made and delivered according to law, was entitled to have a grant from the commonwealth of Kentucky, by patent to be founded on the said survey, and to be completed and issued to him of 9922 acres of land in the county of Mason. &c. bounded, &c.-And whereas the Defendant had on the 5th of October, 1799, (the Plaintiff, being so entitled to have the land patented to him aforesaid, and the Defendant well knowing the premises,) for his own gain and advantage, and to the great wrong and damage of the Plaintiff; without any lawful authority to that effect from the Plaintiff, and withput his knowledge or consent, but under color and pretence of being Attorney in fact for the Plaintiff, wrongfully, injuriously and wilfully made and executed in the name of the Plaintiff, a certain indorsement if writing, upon the back of the said plat and certificate of survey, purporting to be an assignment by the Plaintiff, of the said plat and certificate, to one John Darby and the said James Hughes, for value received, and purporting to express a desire of the Plaintiff, that patents might issue in their names, and purporting to be subscribed with the name of the Plaintiff, by the said James Hughes, his Attorney in fact. And whereas the said James, afterwards, viz. on the 5th of April, 1800, (the Plaintiff being entitled to have the said land patented to him as aforesaid,) with out any authority to that effect from the Plaintiff, and without his knowledge or consent, by means of the said pretended assignment, and under color of the same, for his own gain and advantage, and to the great wrong บ. MOORE. and damage of the Plaintiff, wrongfully, injuriously and HUGHES wilfully caused and procured the land so located and surveyed for the Plaintiff as aforesaid, and bounded as aforesaid, to be granted by the commonwealth of Kentucky, to them the said John Darby and James Hughes, by patent, bearing date, &c. founded on the said warrant and survey, and on the said pretended assignment of the plat and certificate, and signed by James Garrard, the Governor, ane sealed with the seal of the said commonwealth of Kentucky, and in all respects, finally completed and issued to them the said Darby and Hughes, and entered of record in the land office of Kentucky, aforesaid. And the Plaintiff, says, that the said land was patented to the said Darby and Hughes, by the procurement and pretences of the said James as aforesaid, without the Plaintiff's having ever in any manner authorized, contracted, or consented, that the same should be patented in the name of any other person or persons whatsoever, other than himself. And the Plaintiff produceth here in Court, a copy of the said patent, &c. And whereas, afterwards, on the 13th of March, 1806, at Alexandria, &c. a conversation was had, and propositions for an accord and satisfaction, were moved between the said James and the Plaintiff, concerning a compensation for the loss and a liquidation of the damages sustained by the Plaintiff, by reason of the misconduct and wrong doing of the said James in the premises, and of the vesting them, the said Darby and Hughes, with the legal title to the said land as aforesaid; and it was then and there agreed by the said James on his part, in consideration of the premises, and of the just claims of the Plaintiff for compensation and lamages as aforesaid, that the said James should pay to the Plaintiff in satisfaction of the same, 700l. Virginia currency, equal to 2,333 dollars and one third of a dollar, currency of the United States, to be paid in four equal quarterly instalments, the first in three months, &c. each instalment to be secured by a bond of the said James; and the Plaintiff agreed to accept the said 700l. by instalments as aforesaid, in full satisfaction of his just claims as aforesaid, and upon the said instalments being secured by the bonds of the said James, as aforesaid, to release and quit claim to the said James, all the Plain v. MOORE. HUGHES tiffs claims and demands whatsoever, for compensation, redress, or damages arising from the wrong doing and misconduct of the said James, in the premises, and from the vesting the said Darby and Hughes with the legai title ta the said land as aforesaid. The count then states, that the Defendant promised to fulfil the agreement on his part, and the Plaintiff on his part. That the Plaintiff is, and always was ready and willing to perform his part, if the Defendant would perform his. That he afterwards required the Defendant to perform his part, and offered to accept, and would have accepted of the Defendant the 700l. in instalments as aforesaid, and secured by bonds as aforesaid, in full satisfaction of all the claims and demands of the Plaintiff for compensation, redress and damages as aforesaid, and did then and there offer to perfect and execute, and would have perfected and executed to the said James, a good and sufficient quit claim and release to him, of all the Plaintiffs claims and demands for compensation, redress or damages, arising from the misconduct and wrong doing of the said James, in the premises, and from the vesting of the said Darby and Hughes, with the legal title to the said land as aforesaid, if he, the said James, would have secured by his bonds duly executed, the said 7001. &c. But the Defendant refused to perform his part of the agreement, &c. 4. The 4th count stated that whereas, on the 5th of October, 1799, the Defendant without any lawful authority to that effect, but for his own gain and advantage and to the great wrong and damage of the Plaintiff, with intent to prevent the land hereinafter mentioned, from being patented to the Plaintiff, and to cause and procure the same to be patented to the Defendant and one John Darby, wrongfully, injuriously and wilfully made and executed in the name of the Plaintiff, a certain other indorsement in writing, upon a certain other plat and certificate of survey duly made for the Plaintiff, on the 28th of November, 1796, the said survey having been so made in due execution of a certain other warrant duly issued in favor of the Plaintiff, from the land office of Virginia on the 26th of September, 1783, &c. and in pursuance of a location and entry, &c. which last mentioned indorsement purported to be an assignment, &c. from the Plaintiff to the said John v. MOORE. Darby and the Defendant, for value received, &c. pur- HUGHES porting to be subscribed, &c. And whereas the Defendant had, on the 5th of April, 1800, in further pursuance of his said intent to prevent the land from being patented to the Plaintiff, and to cause it to be patented to the said Darby and the Defendant, wrongfully and without authority, and under color of being attorney in fact for the Plaintiff, caused the land to be patented to the said Darby and the Defendant, &c.-and the Plaintiff produceth here a copy of the patent, warrant, survey, &c. &c.—and the Plaintiff avers, that he never authorized the Defendant to make the said assignment,. and that the Defendant knew he had no such authority-that it was made without the Plaintiffs knowledge or consent-that the Plaintiff was, until the issuing of the patent to Darby and the Defendant, entitled to have the land patented to himself-by which wrong doing of the Defendant, the Plaintiff had suffered great wrong and injury and was entitled to be compensated in damages by the Defendant, and to be indemnified for being prevented from having the land patented to him, and for the same being patented to Darby and the Defendant. And whereas afterwards, on the 13th of March, 1806, a conversation was had and propositions for a compromise were moved between the Plaintiff and Defendant, touching the compensation and indemnification of the Plaintiff, and the Defendant then and there agreed in consideration of the just claims of the Plaintiff to be compensated for the damage and injury arising from the misconduct of the Defendant in the premises, and in consideration of the Defendants having procured a patent to be issued to him and Darby for the land, that the Defendant would pay to the Plaintiff another sum of 700l. Virginia currency of the value, &c. which the Plaintiff agreed to accept in satisfaction of his just claims to compensation arising from the causes and considerations last aforesaid; and the Defendant in consideration of his said agreement, assumed and promised to the Plaintiff that he, the Defendant, would perform his part of the agreement. And the Plaintiff in considera tion of that promise agreed to accept the 700l. in satis faction, &c. as aforesaid and upon payment of the same or upon its being secured to be paid in four instalments. &c. that he, the Plaintiff, would quit claim and release to the Defendant. all the Plaintiffs claims and demands 0. MOORE. BUGHES and rights whatsoever to compensation for being prevented from having the land patented to him, and for and on account of the same being patented to the said Darby and the Defendant-and the Plaintiff says that he was and hath ever since been willing and ready to perform, &c. and requested the Defendant to perform, &c. and offered to accept, &c. the 700, &c. in full satisfaction, &c. and offered to quit claim, &c. all the Plaintiffs claims for compensation, &c. if the Defendant would pay, &c. but he refused, &c. The Defendant, having prayed oyer of the agreement and the memorandum, of which a profert was made in the first count, pleaded non assumpsit to that count, and so in like manner to each of the other counts separately; upon all of which pleas, issues were joined. 2d. The Defendant, (without again praying oyer,) for further plea to each of the counts, severally, said, that the promise alleged to be made by the Defendant to the Plaintiff, or any memorandum thereof, was not in writing, signed by the Defendant or any other person by him thereunto lawfully authorized, and this he is ready to verify, &c. 3. The Defendant also without again praying oyer, for further plea to each of the counts, severally, said, that after making the agreement and memorandum "between the Plaintiff and the said John Darby, in the "declaration mentioned, viz. on the 29th of August, 1799, Alexander D. Orr, and John Graham, two re"spectable men residing in the neighborhood of the lands, in the said agreement mentioned, were mutually chosen by the Plaintiff, and the said John Darby, to "say and determine whether the said lands would sell for two thousand pounds, or upwards, and the said Alexander D. Orr, and John Graham, afterwards, viz. on the 29th of August, 1799, did say and deter"mine, that the Plaintiff's claim to a survey of 9922 "acres, in the county of Washington, being the land in the said agreement, and memorandum mentioned, would not sell for 2000l. Virginia money, and this he "is ready to verify," &c. |