Patrick v. M'Clure

4 Ky. 52 | Ky. Ct. App. | 1808

OPINION of the Court, by

Ch. J. Edwards—

This was an action of ejectment, on which Patrick and wife recovered judgment, upon which the defendant moved the court to appoint commissioners under the occuPy'ng claimant law, which was done accordingly : these commissioners made their report, which the plain-tiff moved the court to quash, upon certain objections thereto; this motion was overruled by the court, and the errors assigned in this court were not among the ob-jections urged in the circuit court. The principle deci-^ed ^le case of Bodley and Craig, is that if the party had an opportunity (by being present at the time of the return of the report) to object thereto, and does not do so, or does not allege any matter of objection, which he then might have done, he shall be considered as having waved or abandoned such objections. That the party was in court on the present occasion, is proved by the record, and if a proper title had not been produced by the occupying claimant, the plaintiff could have made it appear by a bill of exception ; not having done so, the legal presumption that the circuit court did its duty, must be indulged by this court. — -—Decree affirmed,

When ⅜ fendanc applied to have com** missioners appointed to value the improvements, the plaintiff was prefent, and might have objected to the title offered by the defendant to support his motion — and if his objec ión was overruled, might have excepted j not having done so, the legal preemption is that a proper title was produced — and that the circuit court acted correctly.