McMahon v. Jones's Heirs , 26 Ky. 294 ( 1830 )

Judge Underwood

delivered the opinion of the Court.

The merits of this controversy, were fully settled in the decision of this court, rendered, when the cause was before it, at. the fall term, 1823; The cause was remanded, with directions to carry into effect, the principles of the opinion, then rendered, and upon an examination of the steps taken in. the circuit court, in pursuance of the mandate of this,, we perceive no'error. All the propositions made by the appellants, to introduce new matter,, either of;' allegation or proof,,wore correctly overruled, because they haffheen concluded, by the decision of this court.. We do not admit, that it was the duty of the circuit court, ex o£icio, to appoint commissioners, under the occupant acts, for the appellants. It was their duly, to move for the appointment of commissioners. Having failed to do so, the court correctly awarded writs, of habere facias. •

The decree of the circuit court,, is affirmed with, costs.