Volume 38 — Kentucky Reports

<p>Bonds, bills and notes for money or property, are assignable by statute, but the statute does not extend to obligations for the performance ofwork and labor.</p> <p>A covenant for the payment of money, in which there is also one for work and labor, is not assignable, so as to vest the assignee with the right to sue in his own name. An indorsement upon, a writing sued upon,</p> <p>purporting that the plaintiff has assigned it to another, cannot be taken advantage of by a mere prayer of oyer and demurrer, when there is no reference to the assignment in the body of the writing or in the declaration.</p>

<p>Covenant.</p> <p>From the Circuit Court eor Shelby County.</p>

<p>statement of the case‘</p> <p>The personal estate of a decedent who died in testate and without wife or child, is (by the act of '97, S. L. 660,) to lie distributed in the same the same proportions and to the same persons as lands are directed to descend by the act of 1785, directing the course of descents. And— Where an intestate had neither father, nor mother, nor child, at his death, his brothers and sisters are his heirs, & distributees, and if some of these heirs are of the half blood and blood, “those of the half Wood, shall inherit only half as much as these of the whole blood, but if all be of the half blood, they shall have whole portions only giving to the ascendants (if there be any) double portions;’ and these terms relate, not to classes, but to individuals : each one of the whole blood talces twice as much as any one of the half blood, and each one of the half blood half as much as any one of the whole blood. So, where one full brother and seven of the half blood were the heirs at law of an intestate, and two thirds of the distributable property was decreed to the full blood, and one third only divided among the seven half bloods, the division was erroneous : it should have been divided into nine parts — two forthe full blood, and one for each half blood.</p> <p>An adm’r settled with the county court, in April, 1817, when he had in his hands $1270, subject to distribution, and for which, except $160 paid to distributees at differ ent times, he remains liable. In 1820, he acknowledged, in a letter, that hehad nothing to pay distributees with, and could get nothing, but paper money — in which he promised to make payment upon timely notice. He denies, in his answer, that he has either used the money or made interest upon it; and alleges that he deposited it in the hands of two persons for safe keep ing &e. But he does not name these persons, nor produce any voucher showing the terms of the deposit, nor adduce any proof of the fact: — This answer is deemed evasive; he is held liable for interest from the date of the letter, in 1820.</p>

<p>Two slaves were sold under executions, upon credit, and purchased by a tona fde judg’t ered-itor of the same debtor (not pl’tf in either of the ex’ons;) who— in pursuance of a previous agreement between him and the debt- or, who was entirely insolvent —conveyed them to Mm, in trust for his (the debt- or’s) children; & the debtor, in pursuance of the agreement, furnished the sale money before it became due, hut as a payment upon the purchaser’s judgment againsthim: held, that these circumstances are sufficient to justify a finding that the conveyances were fraudulent, and the slaves subject'to ex’ons against the debtor (trustee) upon judg’ts recovered before these occurrences».</p>

<p>A decree directing a sale of property, among other things, but in which a right to change or modify the decree at a subsequent term be deemed final as to the sale (which was to take place before the next term,) but within the power of the Court, and qusbject to be changed by agreement of the parties, as to all other matters, subsequent term.</p> <p>An agreement of counsel, entered on record, is binding upon the parties.</p> <p>In pursuance of a decretal order in chancery, a commissioner made a sale of trust property, and adjusted the accounts among the parties to the suit, ascertaining what part of the pro ceeds they were respectively entitled to, and made his report to Court. And a decree was entered purporting to be made “by consent of all parties by their counsel, confirming the report, and settlement thereby made” — and followed by an order directing the commissioner to collect the proceeds of tíxe sale, and distribute them: held that by the consent, all exceptions to the report, and, consequently, all right to set aside the sale were waived. And as the several orders are connected by the word and, the consent may be considered applicable to the whole; but if not, as the report must stand confirmed, it would be nugatory to annul the other parts of the decree.</p> <p>Plea of a release of errors sustained by showing that the decree was made by consent.</p>

<p>A publication against non-residents, made after the passage of the act of 2 February 1837, which requires a warning order & traverse, instead of publication, is unavailing — tho’ the order was made before the act passed.</p> <p>A decree against an absent def’t for the specific execution of a contract, made (since the act of 1837,) without proof, was unauthorized.</p>

<p>Tide of the pi’tf, now appellee.</p> <p>The grounds on which the defts, now appellants, rely to defeat the action; and questions presented.</p> <p>In a deed for a large tract of land, the grantor excepts from warranty “ the land deeded to L. H. and H. I. &c.’’ : held that these terms do not necessarily and as matter of law, import that the grantor had previously conveyed the land referred to in the exception, or that the deed did not pass to the grantee a perfect legal title to all the land within the boundary described in the deed. Had it not passed the whole, a pl’tf claiming under it, would have been bound to show that the land sued for was not within the exception.</p> <p>Verdict can’t be set aside here for defect of proof, when the record does not contain all the evidence.</p> <p>Questions involv whether a patent for land west of river, granted to G. R. Clark, in 1795, upon an entry made, on treasury 1780, and surveyed in 1784, is void or valid. And—</p> <p>Held that, in 1780, when this entry was made, no statute had been enacted, reserving the lands west of the Ten. from appropriationunder the Virginia act, of 1779, authorizing the appropriation of all the vacants lands within the chartered limitsof that State, with certain restrictions; that an inchoate title having been acquired by the entry in 1780, it was not illegal to have it surveyed in 1784, tho' in the mean passed reserving tho se lands for the officers and soldiers of the Va. state line and navy; and that the on that entry and survey, in 1795, was valid , & vestedthe legal title m the patentee, subject only to the right of occupancy conceded to the Choctaws, by the treaty of '86; and the extinguishment of the Choctaw title, in 1818, made the title under the patent, complete.</p> <p>The act of ’82, which, among o'ther things, prohibited locations within the country reserved for the officers & sol diers,until the ap portionment &c. for which it provided, should, be made, did not prohibit locations upon surveys made prior to the date of the act.</p> <p>Location, survey &e. defined— their effects &e.</p> <p>The act of 1781, of Va. setting apart the territory west of the Ten. river for appropriation by the officers and soldiers, did not divest the State of the legal title, nor annul prior vested rights.</p> <p>The lands west of the Tenn. river were subject to appropriation, by treasury warrants, in 1780,by virtue of the Va. act of 1779. “The Cherokee country’ ’ reserved from appropriation by the act, did not include those lands; nor had they been reserved for the Ghiekasaws, or any other particular tribe of Indians.</p> <p>If an entry which was made in ’80, (under a supposed authority of a Va. law,) should be deemed void, it would not follow that therefore a patent for the land granted by the State of Ky., is also void. For—</p> <p>A Ky. act of’9d, directed that‘the Register of this State should receive and issue grants on all certificates of survey which were in the Register’s office of Virginia at the time the separation took place, and upon which grants had not issued’; and, as the Register was bound by this act, to issue patents upon certificates so received, whether they were valid or not, a patent issued in obedience to it, cannot be deemed void in a court of law.</p>

<p>In misdemeanors, there are no accessaries; all concerned are guilty, and each subject to the whole penalty.</p> <p>An indictment charges, that the aceusedbetupon an election, the sum of fifty dollars. The proof is, that there was a bet of $50 against 50, which was lost — 25 by the accused, and 25 by his two partners in the bet: held, that, tho’ indicted alone, he may be convicted upon this proof. Nor is the variance between the charge and proof (in the sum bet) material — the panalty for betting either sum being the same.</p> <p>Such certainty in an indictment for a misdemeanor, as will enable the accused to prepare to meet the charge, and constitute a good bar to another indictment for the same offence, is sufficient.</p>

<p>To an. indictment for a misdemean- or, def’tpleaded guilty, and was convicted; but the judg’t was reversed, because the Judge fixed the amount of the fine, which the statute refers to a jury. The case remanded, the def ’ t pleaded not guilty, and was put upon his trial: — it is now too late to en-quire whether he had a right to plead that plea; for, by taking issue upon it, the Gom’th waived the right of limiting the enquiry to the amount of the fine. But the record of the plea of guilty is evidence against him — not conclu sive, but with the same effect as a confession proved any other way.</p>

<p>T]le gale ofgpir_ itous liquors, in quantities not less than a quart, of^the aiproaueíersfarm or sola a merchant in his storo, is not prohibited, being expressly excepted by the act of 1793 against retailing. And a colored woman keeping a store for the sale of sugar, coffee, teas and other groceries, is a merchant within the meaning of the act.</p>

<p>A will, containing devises to the testator’s sons in trust for his daughters, upon, which — the nature of the property, and the se-veral clauses relating to instated and considered— it is held, that where the' testator devised certain slaves to his sons for the use of his daughters for life, then to their children, & declared that the property devised -was vested in the trustees for their sisters respectively, tobe held for their exclusive use andbenefit, in the name and under the control of said trustees &c. the daughters were entitled tóthepos session, as well as the use,, of the ' slaves devised to to them respectively, without any bonds being given by them or their, husbands, for the preservation, proper use, or surrender of the slaves — subject to such supervision and control only, by the trustees, as may be necessary to prevent any perversion or abuse, of the- trust, to the injury of the beneficiaries, or endangering the rights of those in remainder. So also, as to furniture devised in the same way, , But as to money which constituted apart of the same devise, the beneficiaries are not entitled to, the possession of it: it is the right and duty of the -trustees to hold the principal sum, make it as productive as possible, and pay oyer the proceeds, annually] to the beneficiaries.</p>

<p>An executor who sued on a cause of action that accrued to his testator, is not liable for costs. Nor are ex’ors who proceeded by a warrant on anote given to the testa tor, were defeated before the J. P. and appealed, liable to a judgment for costs, upon a verdict & judgment against them, in the trial of the appeal. The statute of 1812 does not apply to such cases.</p>

<p>Devise of the whole estate of the testator who died childess,) to his wife for life, remainder (except a slave manumitted,) to the use, previledge and benefit a public seminary not to be sold, but rented and hired out the purpose aforesaid:—</p> <p>As a will is undertood as speaking at the testator's death as to slaves, those which the testator acquired after the date of this will, passed by it.</p> <p>Meld that the devise over is a charity, within the 43 Eliz. not void, but valid— creating a charitable trust, which may be lawfully andjudicially upheld & executed. And—</p> <p>The testator, by designating a gen eral objeetof cha rity — “ a public seminary,” must be understood as intending, either a seminary or the seminary of his county, or any which his executors or a court of equity, in the exercise of a sound judicial discretion, should select.</p> <p>As the fund is not sufficient to found a new institution, it Í3 presumed, that the testator intended it for one thatwas or might be already established. And that the seminary' in the testator’s county, the only one there, — tho it was established after the date of his will — is en titled to the benefit of the devise,'' on the ground that the testator would probably have preferred it, and the ground also,that that selection, by the executors, or by the Chancellor, would be most appropriate.</p> <p>A trustee to be appointed by the court below, to manage -the estate, for the use of the seminary.</p>

<p>The proceedings on the warrant, and on the appeal, and questions.</p> <p>One or more of several persons against whom a J. P. has rendered a judg't, may appeal, with the same effect as though all had united in the appea;s; and though that the statue is, that judg't may be rendered between all those who were parties to the judgement of the justice, it should not be so construed as to authorize the Circuit Court to proceed against a party who has not appeared, nor been cited to appear, either before the justice, or in that court. There is no law to summons a party in the Circuit Court, on an appeal from a J. P., who was neither summoned, nor appeared, before him.</p> <p>A judg’t of a J. P. against a party on whom the war rant was not served, and who did not appear, is void; but he may appeal,&reverse it, without subjecting himself to a valid judg’t in. the Circ’t Court.</p> <p>The word ‘deft,' in a judg't, embraces all those who,by the record are liable to the judg’t.</p> <p>Upon the trial of an appeal where the warrant was for fifty dollars ‘due by acceptance for hardware,’ the jury might give damages for the detention of the debt; and the verdict being for fifty four dollars and fifty cents, it is presumed that the excess was for interest: not that the original demand exceeded the justice’s jurisdiction, or. that a different one was proved on the trial of the appeal.</p>

<p>statement of the case></p> <p>Where an ex’ox and legatee, upon reasonable notice,have attemp ted a settlement, and have finally agreed that a cer tain sum shall be paid & received, as the balance due the legatee, and a final discharge given to the ex’or, which is done, the setlement is binding & conclusive upon him — unless it is successfully impeached, upon the ground that the result was pro duced by fraud, mistake, or some improper means.</p> <p>If the settlement couldbe defeated by merely showing that the executor had in fact paid more than was due, the excess should be proved, & shown to be such as to produce the conviction that there was fraud or mistake in the settlement.</p> <p>Reports of auditors, without the vouchers to sustain them,are not sufficient to outweigh the admissions of an ex’or, against his interest, and show that a settlement or compromise, made by him, with legatees, was not made understandingly, or not conclusive.</p>

<p>In assumpsit, as in covenant, if the pltf. sues upon an agreement containing a stip ulation on Iris part, which constituted a condition precedent, he may sustain the action by averring and proving that he was prevented from performing it, by the deft.: but if the pltf s. stipulation was not such as could have been perfor med at once, but required continu ous action on his part, and his non performance does not entitle the defendant to an action — the re covery must be restricted to the actual damage ;it cannot be for the sum that would havebeen due for fullperformanee. As where pitf. agreed to board deft, a year for $500, and the quit in three months, without cause, pltf, can only recoybi pro mtaioi tinned to board coensati contract the rest of the year..</p>

<p>'The events and facts which gave rise to, and have an influence up•on, this controversy.</p> <p>Object of the present bill; its dismissal by the court below, and appeal.</p> <p>The grounds relied on by the appellants, to reverse the decree, & establish their legal right to all the ferry privileges within the town of Covington, or their equitable right to the use and profits derived from them.</p> <p>A ferry can be legally granted to the owner of the soil at the the landing. But as the County Cts. in granting ferries, decide upon the titles of applicants, and opponents,’ — when grant recites, that the grantee proved his title to the . The lading, the grant erroneous — because fact the true owner, and is con-elusive on all who were parties whi wasn o paifty may resist the grant, by appealing to an appropriate forum, and showing his own better title to the land, and consequent right to the franchise.</p> <p>The granting of a ferry by a county court, is a judicial act — subject court of appeals,</p> <p>For an error of a county county-in refusing to or allow time to produce a title— appeal or w. e. only.</p> <p>A ferry was established Court just ees by whose votes the order was made, were inhabitants of the town to which the ferry was granted: held that this fact — the interest of those justices being but slight, remote and contingent — is not sufficient to authorize a court of eq. to set aside the grant, or com pel the grantee to submit to a new cation who the grantmightbeset upon bil Fimi Eraud bif the fraud could be established — -winch is not done in this case'</p> <p>The legal title to the land upon which a feny on the Ohio, and in a town, was established, being in the trustees of the town, while the equitable right to the benefit of the ferry franchise belongs to an individual, the grant inures to his ben ofit, & his rights in that respect, may be enforced in a court of equity.</p> <p>The town of Cov ington, as established by a legislative actin 1815,, extends to the 0-hio river. The legal title of the land appropriated for the town, was then in Th. Kennedy. But the act, according to a former case(4 Litt.322,) vested it in the trustees — bond & security having been given to indemnify any p er-son who might show a better title. But whether the doctrine of that case should be applied to this, is not decided. For—</p> <p>As the act recites that the proprietors, at whose in stance it passed, had purchased the land of Th. Kennedy, and as he, no doubt, knew of and assented to the act, which he confirmed by a conveyance, soon after, of the legal title to the proprietors therein named— the presumption is, that he had sold the land to them, by executory agreement, before the passage of the act— especially,as the land had been laid out in streets and lots, before the act passed; and it is therefore held, that the act is conclusive evidence that the legal title was vested in the trus tees appointed by it.</p> <p>And presumed al so, that a mortgage made by the purchasers to the vendor (Kennedy,) at the time when he conveyed the legal title, was but the continuance of alien reserved by the executory contract of sale.</p> <p>Held also, that the conveyance of the legal title, after the passage of the act, to those at whose instance it passed, and whom it recognizes as pro prietors of the town,wouldhave vested the legal title instantly,by operation oflaw, in the trustees, or at least, in those to whom they conveyed the lots.</p> <p>Ferry franchises on the Ohio, are statutory incidents to the proprietorship of the land; but the beneficial right to the profits may be separated by contract from the legal title to the soil, and may be the subject of an equitable mortgage' which does not include or affect the legal title to the land. Vide post, p. 59 The aet-establish. ing the town of Covington, and defining tfiepowers and duties of the trustees, authorized them to convey the lots; but, as the strip of land between, the river & nearest parallel st., was never designed for lots, but reserved for other uses, the trustees had no power to convey it,, tho’ the legal title was vested in them.</p> <p>A ferry having been granted to the trustees of a town, it is immaterial whether the title to the landing was in them, or in their predecessors. As trustees,they had a right to obtain-the grant — subject to all trusts. And, they are es-topped, by their acts,to deny that they had the title, and hold the ferry as tire owner of the soil would, have held it.</p> <p>Tho’ a ferry franchise,being a sta tutory incident to» land, should be-granted only to the owner of the landing — the hen eficial interest may be transferred to, and held by, another; who may enforce the trust which entitles him to the profits. And—</p> <p>The town of Covington was laid out in streets and lots, with a strip between them and the Ohio, reserved for public uses, and the whole represented on a plat, upon which was an indorsement, signed by the proprietors and a majority of the trustees, showing that the trustees recognized the right of the proprietors to the entire ferry franchise on the Ohio. And, there being nothing in the act, subsequently passed, establishing the town, inconsistent with such a reservation — it is presumed, that the indorsement was but a recognition of a previously reserved right; and this presumption being fortified by other considerations, it is held, that the proprietors were entitled, in equity, to the full benefit of the franchise; and that they were, and that those claiming under them are, entitled to all the benefit and profits of the franchise; and to a decree to enforce that right, against the town trustees, to whom a ferry,therehad been granted — to which tile citizens cannot object, because the Legislature, in establishing the town, knew (it is presumed,) the plan, and purpose of the reservation, and the lots were sold subject thereto,</p> <p>Without any express reservation, the right to the franchises, suited from the facts, that established befor the arting the own; and of the act required Its surrender.</p> <p>A ferry on the 0-hio was granted to the trustees of Covington, when the exclusive right to the profits of ferries at that point, had been reserved,& had passed to T. Kennedy,and his successors — who had a ferry in operation there.— But, as it is presumed, that the trustees acted in good faith in procuring and using the grant, & cannot be deemed guilty of tortious conduct, in acting under a decision of the county court, that the public convenience required an other ferry, & as Kennedy’s heirs a seen titled to the its of it — it is that the tras tees should not be subjected to damages for the injury resulting to the heirs,from the competition between the two ferries. But—</p> <p>que use. And — The net profits received by the trustees, from their ferry, are to be ascertained, and decreed to the heirs — as cestui</p> <p>The hens being entitled to the profits of all fhe ferries at that place, may, at their election, either receive a surrender of that granted to the trustees, upon paying them (out of the profits) for their boats &c. and binding themselves, with security, -to keep the ferry according to law, and indemnify the trastees against liability on ifteirbond; or, they may permit the trustees to continue their ferry, upon their giving bond to keep it properly, charge the maximum rates of ferriage, ana account to the heirs for the clear income which may be derived from the ferry.</p>

<p>A confession of lease, entry and ouster, with a judg’t in eject, is conclusive — not only as to the les sor’s title, to the extent of the recovery, but as to the ouster by the deft. & the right to the mesneprofits; & proof, that part of the land was not held by the deft, but was is Penant as when the eject was commenced, is inadmissible.</p> <p>In trespass for mesne profits, evidence to show that the deft, had made lasting ana valuable improve under a pieaofnotguiity. appropriate plea, chat will admit such proof, if, of improvements made by the ten-have increased, Mng’up’the vermiUlmmcreaíe’ and^findwimtthe amountedtowith outthem.</p>

<p>The act authorizing a pltf. to sue out an attachment against the estate of a debt. to force an apperance, when a capias is returned not found’— like other acts authorizing constructive service of process-is to be constructed strictly.</p> <p>The attachment must be proper of the deit that is legally liable to levy & sale under of an account look is not of that chameter; but, like a choseinaction, is exempt from ex’on. A return on an attachment, of ‘levied upon an account book,the property of the deft.’ will not authoiize a judgment.</p> <p>The appearance of a party in the court of appeals, supersedes the necessity of serving process upon him, when the cause is remanded — tho’ it was reversed for want of legal service.</p>

<p>By a will made in tato is of the children of are amfinnotesol Bank of Ky. out that distruction those to teswire then muehdepre be used at par in lands from the cied thatanother son of the testator, who was his ex’or, should invest the in day the will was land in the south west part of the State; manage a control the land, for the legatees, as they came of age or married, allot to each his or her due share. The testator delivered notes of that description to the trustee (ex’or,) on the made, to the amount of the legacies to the boys, which was invested for them, but nothing for the girls; and, at the testator’s death, he left no such notes. If these legacies were entirely specific, this disposal, by the testator in his life time, of all the notes he had to the use of the boys, was an ademption of- the legacies to the girls, and those legacies therefore fail-ed. — But held, that they were not of that specific kind which fail for want of the thing bequeathed, or which may be adeemed, by the testator’s application of the fund to another purpose; but were “pecuniary,” “demonstrative” legacies which must be paid out of other funds of the testator — of which he left an ample amount, undisposed of.</p> <p>In doubtful cases the law inclines against construing legacies as entirely specific: hence a legacy of a certain sum ‘out of’ a designated fund, bond, or note, or of some stock ‘out of’ a larger amount, &c. does not, in general, depend for its validity, on the sufficiency or existence of the designated fund.</p> <p>a trustee who is appointed by a will,and directed to invest the fund entrusted to him in a particular manner, for the benefit of the ces tui que trust, but who, having accepted the trust, wantonly or culpably neglects to make the investment, may be liable for what the legacy would have been worth invested as diree ted. But where a testator bequeathed to a leg atee, a sum in depreciated bank notes “ out of those onhands,” to be invested in land for the benefit of thq-legatee, but disposed pf all the notes he .had of that sort, before he died, & the ex’or considered the legacy as adeemed, he is held liable only for the same amount of notes in kind, or for their value and interest from about one year from the testator’s death.</p> <p>A legatee being entitled to a residuary bequest which the ex’or was directed by the will to make productive, he is liable for compound interest, to be calculated (the circumstances considered,) with biennial rests.</p>

<p>As a pltf. reject. the acolaration as lieled 1nUcourt pmdeiis until it pioofofprevSus service. But—</p> <p>If the declaration serpee dorsed, is filed upon the appearance day, the action considered’as menced 6at °the time of the ser-</p> <p>If the dec'n is not filed on spendens until a deft, appears, and defends or action may at any crime on motion of anyper mitteda deft. & motion, without pleading.</p> <p>Where appear enters himself a of moving a discontinuance of to it — he waives all objection to the service, & all advantage that might have been-taken of the failed to file the dec’n regularly; and the action will be considered as having been commenced at the time of service of the dec’n. and notice upon, the tenant.</p> <p>When a non-resident’s answer appears in the record of a chancery suit, it must be presumed that there was an appearance by him, tho’ he was not served with .process, constructively or otherwise.</p> <p>Where a record states that the court was satisfied by proof, that an order for the appearance of a non-resident, had been legally published, the de cree cannot be deemed void as to him — tho’, if the proof of publication is not in; the record, the-decree maybe erroneous.</p> <p>ficiency-the fact The various facts of a case may be proved in the order that the party thinks most elf gible: so, where a record was offer ed as one link in a chain of title, & proof that one of the parties to the-record was the heir of a certain person, was essential to its suf that the heirship had pot been proved, was not a sufficient reason for rejecting the record.</p>

<p>Statement of the case.</p> <p>When the assign pursued the debt propert — the assignor,havmg paid the debt, may maintain a bill, under the act of ’28, to subject the debtor’s equitable interests &c. to its payment — malting the assignee a party.</p> <p>Where the answer to a bill to discover and subject equitable interests &e. shows that the defendant owns property that is under mortgage — tho’ the equity of redemption may be sold, the sale will be a recognition of the validity of the mortgage, as to the parties, and purchaser, who will taire subject to the mortgage. The mortgagee must therefore be made a party, that the nature and amount of his debt may be ascertained — otherwise, the bill may be dismissed as to that property.</p> <p>Sale of land by a debtor to bis son, ¿numerous facts upon which it is held,that the sale was fraudulent, ¿the land liable under a bill filed to reach the vendor’s equitable interests.</p> <p>Where a convey-which a debtor sue pending against him to sub ject his equitable interests to the debt & hawkey; it is insranted — who holds the affirmative — to show that, before the bill was filed, he had afair and bona fide contract fox the land,made on avaluable con sideration,which was merely confirmed by the con veyance.</p>

<p>'The registration, of a second mort gage — which pas ses onlythe equity of redemption —does not operate as notice.</p> <p>As between two mortgages, both recorded,the elder prevails, at least, as a security for debts &o. for which it specifically provides. But query — can the holder of a prior mort gage avail himself of it, as aseicurity for subsequent advances, made in faith of it,-where he had no notice of the junior mortgage? in other words— is theBritish doe trine of tacking, admissible here? The decision of the Louisville chancellor was in the affirmative. But, as it is the opinion of this court, that some of the elder mortgagee’s subsequent advannected, by the moxi|agef& that he had actual notice of the junior mortgage, and so h^th^BAtish oftoctóí^tóno’t decided or con-</p> <p>mere legalties andequities the same more. I implied notice to to the property bered if does not gequ Stachasers_ have actual the mere fact of registration (neverseen by them or are feras it only trans an eluity</p> <p>told that a person about to draw on the same property; on another stated to a party he had mamhiea a frequent transaction mortgagor, whose the torioul that the, ge cient to affect react subsequent advanees to is mortgage debt.</p> <p>Amortgagor who had included the same property in three successive mortgages, to dif ferent individuals, sold it to the first mortgagee, & thereby extinguished his mort gage, and received ofhim $1000, the residue of the price; and this was done with the assent of the second mortgagee: but, as it does not appear that the mortgagor would have made the sale without getting the $1000 himself, or that a coercive sale would have produced more than the debt secured by the first mortgage — it is held that the second mortgagee shall not be postponed (as to $1000 of his debt) to the third, as to other property embraced in their respective mortgages.</p> <p>Mortgagee had given a note to the mortgagor,*, tho’ he had the note in his possession,after the death of the mort gagor, as he does not account for thatfaet, or show that he had paid the note, he is held accountable fox it, as a reduc tion of his mortgage debt, in favox’ofthe subsequent mortgage.</p>

<p>An officer has no right to return a summons on petition, or capias, ‘not found, before the return day. Nor has he any right to make that return, until hehas been to the deft’s, residence in search of him, unless the deft’s, residence is unknown to him. It is the duty of the officer to retain the process execute it, until-</p> <p>A return has no rightbefore the rew tantionz tan judge against another. airetam not found, dated the return day, to the courqed that after6that date, and before the deftf hadTn the^sheriff who then had the process, and. was requested to execute it — the court should have re-to amenffieTe. In; 01 should have quashed it. it was erroneous to enter an abate ment as to that deft., and render judg’t against another.</p> <p>A pltf. may,however, control his writ in the hands ofthe officer,and direct its return at anytime; but cannot, by dispensingwith service as to one defendant, acquire a right to proceed against another, without him. If the writis against two, and served on one only, in time for judg’t at the next term, & the other is not found till within ten days of the court, the pltf. cannot,by directing areturnthen, acquire the right to abate as to the latter deft., and take judgment against the other.</p>

<p>No demand that had its origin in moral turpitude, or which was ere ated in violation, of a statute, can, be enforced in a court of law.— Nor will a court of equity lend the slightest aid towards collecting or enforcing any claim or demand thus contamina- • ted.</p> <p>A man who had-fallen into dissolute habits, conveyed a tract of land to his father-in-law, by a deed in which a valuable- consideration was expressed. The grantee;, having previously paidpart of the grantor’s debts, then paid the res idue; & received & supported his: wife & children, who were soon eompelled,by.his. neglect, to abandon him, and finally devised the land in trust for tavern keeper living near the grantor’s residence, having an execution agairist him, returned no property— filed abill in chancery to subject the land to that and other debts — charging that the conveyancewas voluntary, and made to hinder and delay creditors, and especially to defraud him.. But it appears that the debts — though alleged to have existed before the conveyance — were, in fact, created afterwards, and chiefly for liquor furnished, at the complainant’s tavern, and in violation of his license bond and his moral obligations, to the debtor; who, having become a miserable sot, spent most of his time there, in idleness and drunkenness, to his own ruin and the great distress of his family. It further appears, that there was collusion between him and the complainant — to subject the land, for amounts made up between them, of claims partly fictitious, with an understanding that the debtor should have part of the proceeds. — And tho’, to some extent, the demands set up in the bill, were probably pure, as the complainant refused to separate them from the rest, they must share the same fate. The complainant is entitled to no relief: his bill must be dismissed with costs.</p> <p>The deposition of a deft, if taken •without an order of court — aecordingTto a former decision, should be rejected.</p> <p>Where it appears that a witness has impaired his intellect by dissipation; is much under the influence of the party taking his deposition, and free to answer according to his wishes, even though his answers are thereby rendered inconsistent with each other, and with other facts established in the case — the dep’n should be disregarded. And the deposition of the debtor, in this case, being of that character —there is no sufcient evidence that the deed was made to defraud creditors :the con trary, in fact, appears from other circumstances.</p>

<p>The facts.</p> <p>Two persons,having given a note,. in the body of which they were named as promis sprs— the addition afterwards, of a third signature, with a corresponding change in the body, with out the consent of the original signers, was held to vitiate the note as to them. But where — without any change in the form of the note —an additional promissor signed it — a -- - jury may find it to be still the act and deed of the first signer, upon very slight evidence of even a subsequent assent on his part, and the verdict will be sustained.</p> <p>The inducement to a surety to sign the principal’s note (after it had become due) was an agree ment, made with him, & indorsed on the note, to extend the time of payment that this agreement was a valuable and sufficient consideration to uphold the obligation on his part, and defeat his plea of want of consideration.</p>

<p>A contract for a sale of land,tho’ not in writing, is not void; Awhile the vendor is able and willing to comply, the purchaser can maintain no action to recover bade the consideration paid.</p> <p>The purchasers of a lot delivered a gold watch and chain, as a payment on account of it; but afterwards, when the conveyance was tendered to them, they refused to receive it; and then the vendor sold the lot to another: if this amounts to a rescission of the contract, the effect is to re-vest the title of the watch and chain in the former owners — the purchasers of the lot; the law implies no promise by the other party, to pay them the value of the watch and chain, and they cannot maintain assumpsit for it. Their remedy (if the watch and chain are not returned to them,) is by an action for the specific thing, or for its conversion.</p>

<p>Certain conveyances held-upon th facts recited to hinder and delay creditors, or upon a secret general trust for the use to the grantor’s</p>

<p>a warrant of forcible detainer may be maintain ed, by agurchaslion, againsTa b¡s ven</p> <p>A deed was ex-because “Power to him to make it, appears in the reder he defective,</p>

<p>The facts, and considered.10 be</p> <p>An agency for collecting and se curing the debts of a corporation, may be created without the use of the corporate seal.-Resistance by a corporation, to an attempt to recover property which it had. acquired by its agent, is. a sufficient recognition of the agency.</p> <p>The comity of modem times concedes to the subjects and citizens of one nation or State, the right to maintain suits in the courts and tribunals of another; and, in this respect, there is, in general, no differ ence recognized between artificial persons or corporations,and natural persons. And—</p> <p>A bank, or other corporation, of another State may maintain an action here, upon any contract made with such corporation, and which it had a legal right to make, in the state where it has a legal existence-provided the action is not inconsistent -with the local law or policy of this State.</p> <p>A corporation, it seems, may, by its agents, make contracts beyond the limits of the State jn which it is established — provided they are such as its charter authorizes it to make, and such as are not inconsistent of the local law or policy of the State where they are made,</p> <p>There is no law of this State prohibiting a corporation of a sister state from eolleet ingor seeuring by contract here, a debt due to it by virtue of a contract made in the State under whose laws the corporation is established.</p> <p>The act of 1812 concerning ‘unchartered banks/ seems to apply only to associations in this State; but if it applies also, to foreign banks, it only interdicts agencies and contracts for circulating their notes.</p> <p>The common law never discriminated between the right of a corporation to contract for land, and its right to contract for any thing else; and there is no doctrine of the common law better settled, than that which concedes to corporations an inherent or resulting right to land by contract, — ex eept so far as they may be restricted by the ob jects of their creation, or by limitations in their charters.</p> <p>The common law is the law of Ky. —except so far as it has been changed by statute, or is inapplicable to our institutions ; and there has been no change made by statute in respect to the right of corporations to acquire and hold lands.</p> <p>The laws of this State make no dis crimination between the capacity to make bind ing contracts, as to movable, and as to immovable property. Nor is the right to acquire and hold land here, confined to citizens or residents, or even to natural persons.As the Bank of Scioto — an Ohio corporation, has the right to contract here, by its agent, within the scope of its charter, which concedes to it the right to make contracts for lands (either as mortgagee or purchaser,) for the purpose of securing its debts acquired in the exercise of its lawful powers — a mortgage made to that corporation, for such a purpose, upon land in this State, is not invalid, but is sanctioned, and must be upheld, by the laws of this State.</p> <p>None of the Britrish mortmainacts were ever in force Kentucky.</p> <p>The policy of the British mortmain acts seems to be inapplicable to a corporation, like the Bank of Scioto, whose du ration is limited to a short period.</p> <p>A mortgage taken,in good faith, merely to secure a debt, * which may be redeemed at any time, should not be considered as a purchase, within the scope of the British mortmain acts.</p> <p>Were the mort main acts in force here, stilla conveyance to a corporation, con traryto their inhibitions, would vest the title in such corporation where it would remain till office found: an individual would take nothing by subse quent purchase from the same vendor.</p>

<p>A judg’t was recovered (in 196) ‘for 2000; 800 of it was paid: lire residue enjoined (in 1800.) In 1808,a decree was rendered per petuating the injunction, & comipelling the pltf. in the judg’t to pay back the 800 —most of which was made, by executions on that decree; which, however, was afterwards revers-ad, and, finally, (in 1835,) by the decree now revised and affirmed, the judg’t was credited by the 800, and the injunction dissolved as to the residue with damages, &c. — upon the reversal of the former decree (of 1808,) the plaintiff, it is admitted, was en titled to restitution of so much of the 800 as hadbeen collected of him. But, because it does not appear that restitution had not been made; & no motion for res titution appears in the record, & there is nothing in the pleadings and issue in relation to it — it is decided that the Court was not bound to notice it, & the decree, as above, is affirmed.</p>

<p>The petition and summons.</p> <p>Points made in the case.</p> <p>Ageneral request pay the drawer’s own or 3 Dill exchange, which the drawer may make payable to doreement, & notice to the accep tor, before it due.</p> <p>A bill drawn in one if another is & foreign bill,</p> <p>The act of 1837, authorizing suits by petition and summons, upon bills of exchange, is aremedial stat ute,which sh ould be construed liberally — and as au thorizing the suit by a drawer, being'the holder,’ against an acceptor; the term ‘pro tested’ used in the first sec. as descriptive ofthe bills upon which petitions may be maintained,is synonimous with dishonored ; and under that see. a petition & summons may be maintained in any case where as sumpsit will lie on the same bill, between thesame parties.</p> <p>In a suit against an acceptor, upon a general acceptance, it is not necessary to aver a formal demand, or presentation for payment. And— Where a suit is brought by petition, under the act of’37, by the drawer of a bill, as the holder, against the acceptor, the indorsements on the bill may be disregard ed.</p> <p>Where a bill is payable to the drawer’s order, and indorsed to his agent, the indorsement is virtually to himself, and no averment of his having paid it, is necessary.</p> <p>An averment that the plt£ (drawer) is the holder of the bill, is prima facie evidence of his right to sue.</p>

<p>An adm’r having commissioners the his account as admimstrator? reported a etonds and they invesments the Husband of one of the distributees and the guardians of others, & obtained their receipts for specified sums — paid in full. Five years afterwards, the distributees filed a bill in chancery against the administrators, praying a decree for distribution, without noticing the former settlements and receipts in full. The administrators answered, relying upon the receipts, and — alleging that they had paid more than was due — they make their answer a cross-bill, and ask a decree for restitution. It appears that the aggregate of the sums specified in the receipts, was something less than the balance reported upon the county court settlement, and the circuit court rendered a decree for the difference, with a larger sum for interest, — disregarding the terms “in full," in the receipts — although no mistake or fraud in the sattlements or receipts, was charged. And that decree is approved and affirmed here.</p> <p>The receipts in full, it seems, are not so conclusive upon the distributees, as they would have been it they themselves (instead of their guardians) had made the settlements.</p> <p>The allegations of over-payments, in the cross-hill, are not sufficiently specific, to authorize them to be taken as confessed; and as the cross-bill is not expressly dismissed, by the decree rendered, and may be still pending (it is said,) this court will not disturb the decree on the original bill, because of the omission to decree upon the cross-bill.</p>

<p>By a contract made in expectation of a marriage, the parties agreed that, in the event of the marriage,the hus band should convey certain slave s of the wife to a trustee, in trust for her and her heirs and assigns forever, to be dis posed of by her [at any time during her life] as tho’ the intended marriage had never taken place; with a N. B. that the slaves were to be kept in the wife’s possession during her life:—</p> <p>A line that was effaced is presumed to have contained words har monizing with the rest-as those in brackets.</p> <p>The term ‘heirs’ should be understood as a word of limitation; not of purchase, and the terms ‘to her and her heirs and assigns forever,’ import that the wife’s title was to be absolute & unlimited, & corresponding words being put in place of the lost line, the writing must be understood as stipulating that he should have a right to dispose of the slaves during her life. This con struction is confirmed by the N. B. which shows that the husband was to have the use of the slaves while the wife re tained them.</p> <p>As the marriage took place, but the conveyance to the trustee was never made, the legal title to the slaves vested in, & remained with, the husband.</p> <p>The wife, on her death bed, declared that the antenuptial contract had been set aside, and gave the slaves to her husband— enjoining him to dispose of them according to the directions she then gave; which he did. And, as the legal title & possession were with the husband —and if the wife had any equity— which, considering her dying declaration, is very doubtful — it was a right to dispose of them absolutely — which she in effect did — a ct. of equity should not interpose in favor of her collateral kindred.</p>

<p>Upon a contract for sale of hogs, made in Dec. the vendors covenanted to deliver 600 between the 15th. and 20th of Oct. then next, in such pens as they should select, within ten miles of E.: for which the purchasers eovenan ted to pay, at the same time, at a stipulated rate:-As the delivery & payment were to be concurrent acts- -in an action by the vendors, against the purchasers, for their failure to talce the hogs, it was in umben to the pltfs. to aver and prove, that they had selected the place or places within ten miles ofE. and had iixed the day or days, within the prescribed period, for the delivery, had notified the defts. and were ready aecording the and offered to dé there01 was Bno need of weighing, or malnng a formal tender of the chas appeared fo receive them. The purchasers were not bound vendom nor o as or notice; they were aoma, no prevent if it from ¡nitiating to judicial cafentocase? o ce leftat fluí residence of are of the in another county, of an intending delivery on the 16th — -was insufficient.-A notice of an intention to deliver at one place, is not sufficient for two plaoes — though it may have been timely, and fairly served; if the purchasers had attended, and had found that there were not enough hogs at the place named in the notice, to fulfil the contract, they might have refused to recéive them and have departed, without incurring any responsibility; it could not be judicially presumed’that they would there have received notice of another delivery.</p>

<p>Chancery.</p> <p>From the Circuit Court 'eor Fayette County.</p>

<p>An act of 1820 imposes a penalty of $200 upon any ferryman or otlierpersonwho shall take a Ken. slave across the Ohio, into another state, without the owner’s authority; and, if the ferryman is a slave, the owner or keeper of the ferry is liable for the penally.</p> <p>An act of 1831 prohibits the taking of any slave or slaves from this State,across the Ohio to the opposite shore, by the owner or keeper of a ferry, or by any other person, without the owner’s consent; and for a violation of this act, the offender is liable for the value of the slave or slaves, and to apenaltyof#200; and if he be the owner or keeper of the ferry, he incurs a forfeiture of his ferry privileges, also. The terms ‘keeper of a ferry,’ as used in these acts, designate, not the acting fer ryman, hut the grantee or lessee or other person having a beneficial interest in, or control over, the ferry. And the penalties denounced by both statutes, are up. on him or those by whose individ ual acts they are violated — and up on the owner or keeper of a ferry whose ferryman is a slave. But he is not responsible for his free ferryman who violates the law without his consent.</p> <p>The city of Covington being the grantee, and the Covington Ferry Co. the lessees, of a ferry across theOhio — a slave passed over in a boat managed by a ferryman for the Co. andmade his escape: as no member of the Co. was present at the time, and the permitting of the slave to pass was contrary to their general orders, the Company is not liable for the value of the slave, nor for the penalty.</p>

<p>The rightto make contracts or agreements for the passage of boats &e. through the Louisville and Portland canal, is a necessary incident to the powers specifically granted to the corporation to which the canal belongs; and for any failure to per form a contract or undertaking of that sort, the eor porationis liable, m the same man ner, and to the same extent,that a natural ‘person would be.</p> <p>When a boat is induced by the co. to' enter the canal, in the expectation that, for a fair compensation’,it shall have a passage thro’, the law im plies an agreement on the part of the corporation, that theboat shall get through in a reasonable time.</p> <p>Reward is, prima facie, the legal That the co. agreed‘ for 'a reasonable reward,’ that a boat should pass &c. is a sufficient averment of consideration. tolls. But if they contract for more — thó’ they may not be able to enforce the contract — they will not, therefore, be exempt from liability for a breach of their agreement.</p>

<p>A tenant in common can’t maintain trespass g. c. f. against Ms co-tenant. Nor any action for a chattel, unless the deft, has destroyed it. But—</p> <p>A tenant in common, upon an actual ouster hy his co-tenant, may maintain eject, against him, and trespass for the mesne profits.</p>

<p>Chancery.</p> <p>From the Circuit Court for Hardin County.</p>

<p>statement of the oase</p> <p>The patents covering the land, conflicting titles of the parties, & facts as to possession by either, or those under whom they claim</p> <p>Instructions, and questions presented.</p> <p>A grantee having obtained separate patents for on and Tenteredt Maimingtf tie to both: the Icquired°&heid! vvithttte cMmJ8</p> <p>A purchaser of land at sherriff's acquires no rightf of obtains’ the deed,</p> <p>An entry upon land, to be legal & available, must be by one having a legal right of entry when he enters.</p> <p>An entry — to defeat a subsisting actual possession, must be with an express intention (manifest at the time,) to take possession: going occasionally on to the land, cutting and using the timber, is not sufficient.</p> <p>An actual possession (with title) is not ousted by an entry upon an interfering tract, but not within the lap. The patentee of two tracts, residing on the smaller,settled his son on the other— with what extent of possession is not shown: avow als by the son to the owner of an in terfering claim, that that title was (as he thought,) the best, offering to purchase, and apologizing for intruding upon it &c, is not sufficient evidence that the patentee had withdrawn his claim to, or relinquished his possession of,the interference. The son’s admis? sions could affect only Ms possession, at most. And, if there was an express disclaimer by him, his_ widow, remaining in possession, might, nevertheless, a? vail herself of 20 years adversepos session by the pa tentee before the disclaimer, to pro teet her posses? sion.</p>

<p>Statement of the 'case'</p> <p>The common, law doctrained can never become legitimate, has been repealed, and the principles of the civil law adopted, by statutes of Virgins ia and Ken. by which it is provided, that ante-nuptial children shall be legitima tedby the father’s marriage to the mother, and recognition of the-children; & had the issue of a marriage deemed null in law shall, nevertheless, be deemed legitimate. By these stat utes, children so circumstanced, are legitimated as heirs and distributees of the father, and for every purpose.</p> <p>Several clauses ofthe statutes of descents and distributions recited, and their effect determined: inter aha, that the descendant or descendants of a deceased father inherit, per stirpes, whatever the father, (if living) would be entitled to from the same source. And so held, that, where the father of an illegitimate daughter married her mother, and, by her, had a son, and he, his wife and son died — the daughter, surviving, is entitled (tho’ bom illegitimate) to a distributive share of the estate of a deceased brother of her father — equally with his mother, brothers and sisters — just as her father would have been entitled, if he had been living at the death of his brother.</p> <p>In a suit for distribution, one of the adm’rs presented a large claim — never before exhibited— for visiting his brother, the intestate, and directing his affairs,occasionally, not long before his death: such a claim, so presented, was properly disallowed in toto.</p>

<p>The several successive acts for the protection of the settlers west of the Ten. river, secured to each settler (for a limited time) a preemptive right to thelandon which he had an improvement, although his dwelling was not on the same quarter section; but, by the act of 1835, the privilege was restricted_,to one qr. sec. besides that on which the settler resided. But he may have the right to the qr. sec. on which he resides and to oneother;and,as the statute does not discriminate between these two rights, the courts must consider them as of the same quality and dignity. And so, if a settler residing on one qr. sec. has an improvement exten ding into another, he has the same preemptive right to the latter that he has to the former, and the same that another settler residing upon it has.</p> <p>A party, at the instance, and for the ¡benefit, of a settler west of the Ten. river, ad vanced the State price for aqr.see. of land to which the settler had a preemption, under the act of 20 Feb.’35; and (for security) took the certificate in his own name; but afterwards, upon being reimbursed, assigned it to the settler, who obtained the patent: the settler’s rights, in equity, are the same as tho’ the certificate had issued to him.</p> <p>If one obtains the title to land (west of the Ten.) to which another has a preemption, the latter may,by bill inch, compel a surrender of the title to him, on equitable terms : and if two have each preemptive rights to the same land — their equities being equal —that which is first asserted by suit obtains the preference; and a right that may be enforced in. ch., maybe as effectually secured by arrangement between the parties.</p> <p>Where equities are equal, the legal title must pre vail.</p> <p>Where the law gives to each of two settlers a pre emption to two tracts of land, & there is a tract to which they have both acquired the right — if one of them has acquired rights to more than, two, and the other to two only, the right of the latter edby both, should be preferred. to the tract claim-</p>

<p>The action.</p> <p>An eject, was served whom was ten-the latter alone verdicf & judgU were for the defendant. Tho’it was not expressaffenfe Vfoí’his himself it should be so understood; default against not be allowed— especially, as it ed before the tritimation a glven, Saimecí</p> <p>Thatthe evidence of an interested witness was admitted, tho’ objected to, is held not to be sufficient ground for a new trial because no exception was taken; the evidence was not very essential, and the verdict would probably have been the same without it.. But—</p> <p>The admission of an incompetent witness whose testimony was im portant, & was ob jected to, would be ground for a new trial, though there was no bill of exceptions taken to the decision, admitting it.</p> <p>An adverse possession of land, for 20 years, by a party without claim of title, miglit give him a right of entry, on which he could recover in ejectment;but yet, instructions that the could not recover unless he & those under whom he claimed had occupied the land for 20 years, claiming title thereto, is not sufficient ground for a new trial, in a case, like this, where, as the evidence was that the claim of title was always made —the instructions could not have been prejudicial. And here they were not even technically erroneous; for—</p> <p>Before the twenty years had run, the land was recovered under the elder grant, and a tenant who had entered pendente lite, surren dered the possession, after the judg’t, to the sue cessfulparty;and as that was legal and proper, it gave the pltf. in the judg’t the ben efit of the possession during the pendency of his action, so that that period could not he added to the prior possession under the junior grant, to make out the 20 years.</p> <p>The fact that the proceedings concerning the improvements upon land,after a judgment of eviction, were confined to one parcel, to which the deft, had a regular derivation of title, does not authorize the conclusion that, another tract of which, also, he had possession, but no title, was not included in the recovery; for as to the latter, having no title, he had no claim to pay for improvements.</p>

<p>Statement of the ease.</p> <p>Decree of the circuit court, and appeal.</p> <p>stituted. for the The purchaser of property sold under ex’on has a right, in- equity, when the property is recovered from him, or his vendee, by virtue of a superior ti-title, to be sub-creditor, and to have the amount of his purchase money refunded to him by the deft, in the ex’on, or — where the execution was against adm’rs — out of the assets of the intestate. And his rights, in this respect, are not affected by his knowing, at the time of his purchase, that the property sold, belonged to a stranger, and was not subject to'the execution.</p> <p>If a sale bond was given by the purchaser In such a case, its satisfaction may be presumed from lapse of time.</p> <p>Where the property was recovered from a vendee of the purchaser under ex’on, it is not necessary for the latter to show, in his suit for indemnity, that he has reimbursed his vendee, to whom he only, and not the deft, in the execution, is liable.</p> <p>legations of a bill by concessions in affects in the al-</p> <p>is sold under execution adm’r alseteer afterwardflo" ses it by paramount title, his cause of action, chasa/money. Prefolded out of the estate of the dece accruesattion, not before,</p> <p>Tho' by the of 1819 (g. L. or adm’r Texonaccountof contract made with the decedent, unless the eed withfiro amehequ tfied9 from the time the cause of action accrued, pro Shifted the dese’ accounts— the act does not tracts, or causes tiesf arising tef death of a testator or intestate. Nor does it bar a suit on. a contract made with the decedent, when the cause of action had not accrued till withm fiye the or administrator may have made distribution and settled his accounts: still less, where the action accrued after the decedent’s death, and the suit was instituted within five years of its accrual.</p> <p>Nor can the limitation he applied where the object of the Suit is to reach slaves, which (being claimed by the adm’r,) have not been distributed, nor included in any settlement. And—</p> <p>The statute provides expressly for an action against the distributees who have received the ' estate, and must he understood as authorizing it against the administrator (or any other) in. whose hands the property may he.</p> <p>An adm’r cannot couSa'biiity for ¡the slaves which liave assets in his hands, by eUhned the mas his own, fox five ureio appiy them of the debS The will be answerable upon his bond,</p> <p>Seview of the cv idenee adduced —on the one side, to show that the Slaves inoontest, Were a loan to the wife of the intestate (by her father,) and’ never assets in her hanrlsasherhusband’sadm’x;&, on the other, that thev were a gift to her and so liable for his debts; and the question of loan or gift being left doubtful —it is held that, if the slaves wero only lent,as there was no recorded memorial of the loan, and they remained in the general possession of the decedent for mors than five years— the fact that they frequently return ed to their old master, the lender’s, and made long visits at his house, does not evince such n cessation of the bailee’s possession as to take the ease out of the statute of frauds’, they are, therefore liable for the decedent’s debts.</p> <p>In a suit lor intos^of a°&iave purchased under ex on,and recovered by another claimant — the purchaser got a decree for his money, but complains that in. terest was not allowed him: hut, as he was not charged with hire — and some facts may have disappeared with part of the record that was destroyed, this ct. declines changing the decree.</p>

<p>Pet. & Sum.</p> <p>From ti-ie Circuit Court for Clarke Countt.</p>

<p>The exclusion of evidenoe which could have had eial to the party offering it, is no versal — though it wrong reason Where an officer a brief property a 10 mortgagee upon it, sells the has no right to sratpndl such as the purquity of redempto givc. ietmied</p> <p>The sale by the consent to the removal, is sufficient evidence of the conversion by him.</p> <p>A mortgagee of property which an officer hashas seized and sold of the mortgagor, Stior T agains tthe at his’ejection’ pursue the propof the purchaser: by the ale tíll Tt vests in the purquence of the reges for the diconversion. The mea sine of damages which a mortgagee may recover, for a conversion of the property— as where a sheriff levies on, and sells, it for the mortgagor’s debt is at least the amount of the mortgage debt, (the value of the property exceeding it;) and perhaps he should, as the legal owner, recover the full value of the property, subject to be restricted to the amount of his lien by a ct, of equity,</p>

<p>Statement of the</p> <p>Tho’ an undivided part of the landtor which an eject, is brought, maybe recovered upon a sole demiseof the whole by a joint tenant or tenant in common, and tho’ it is not necessary that the verdict should designate the quantity or boundary of the land recovered upon a sole or sev eral title — where the demise is by a single lessor, a general verdict cannotbe sustain ed by evidence of title in him, to an undivided part only.</p> <p>Proof of possses/offcon and posession by his vendee, is of to alew apon and sale estate.</p> <p>A mortgagor’s in terest is liable to a levy and sale under ex’on, and is so liable notwithstanding an executory eontractfor a sale of it — butnot where there was an actual, dona fide, transfer before the ex’on came to the officer’s hands.</p> <p>The sale and conveyance of an equity of redemption,underex’on, invests the purchaser with all the right, title * interest of the mortgagor; who cannot deny the purchaser’s right of possession, or resist his recovery. The rights of the mortgagee’s tenant or executory vendee; are the same — not greater.</p> <p>A sale under execution, of land sold subject to a mortgage, passes only the equity of redemption, and, if the mortgage debtispaid, as there is. then no eq. of redemption,nothingpass es by the sale. Payment of the debt may, therefore, be proved, to defeatarecoveryunder the pur chaser’s title.</p> <p>A sale under execution, of land as the absolute property of the debtor, will pass all the interest that he has, subject to the ex’on —as an eq. of redemption where the land is mort-</p> <p>Where a sheriff levied on two adjoining tracts of land, and sold one as the absolute property of the ex'on debtor fourth, subject to at huSe of the two did erenl; without any negrass abu 3 of officmf anMho’ itor was the puruiSty was bli Sienl, to Sale, OH attention. And—</p> <p>Such iiregularities in the sale coupled with the fact was the purchaser, at a very proper to dence of’a fraud-the sale, upon and tate noThing sheriff’s deed.</p>

<p>The accidental dectruction of a bill, declaration, or petition and note, after service of process upon it, will not necessarity abate the suit, if the loss can be supplied.</p> <p>A substitute may be prepared, and the court, being satisfied of the loss of the original, and that the substitute is of the same import, should permit it to be filed, and to have the same effect.</p> <p>If,because of the destruction of pa pers,the deft, has been unable to ascertain the pre eise nature of the suit — he is entitled to a continuance.</p>

<p>The act of ’96, which, upon are turn of no inhabitant where the redemand ed 'not found.'</p> <p>Several defendants may, (under the act 1812, §4) be sued in any the of them re to be erveTon other defts. may be sent to their counties; or, the suit may be abated as to those re turned no inhabitant (same act, sec. 6,) or “not found” — act of. 1825.</p> <p>When a writ is returned exceuted on one or more of the defts. by the sheriff of the county where the suit is instituted, and that others are not found, the pltf. is not bound to abate as to any; but may, at his election,abate as to them, or send process for them, to other counties. It is the duty of a lawyer who is. to defend a suit, to attend at the day to which it is continued, upon being called. His failure to do so, it seems, is not. ground for reversing a judg’t.</p> <p>An affidavit of surprise, by a. judg’t, rendered when the cause was called unexpectedly to the deft, is not sufficient, unless it, discloses, also,, an available defence.</p>

<p>Bill for a convey anee, according to a stipulation of a deft, in a con tract made near 20 years before: the deft in his answer, alleges that there is a balance of the consideration still due, and claims payment. Statement of the facts andcircnmstances relied on to prove the payment, and those which conduce to the contrary conclusion — and which leave the ques tion extreme ]y doubtful. — As it devolved upon the complainant to show that he was entitled to the conveyance without payment —the decree for a conveyance,up on such a state of proof,mighthave been reversed, had there been no other foundation for it. But the circuit judge submitted the question to ajury, who found that the consideration had all been paid; and their verdict, in aeaseofsomueh doubt, should be decisive.</p> <p>A Oh’x may decide every question of fact for himself; but any question which be considers very doubtful, he may, and should, refer to a jury. But the verdict is to satisfy the eon science of the Chancellor; and, if he is not satisfied with it, he should disregard it; on the other hand, if he concurs with the jury, or, if his mind still oscillates, he should allow the verdict to be decisive.</p> <p>See the Petition and Response.</p> <p>An allegation of pleading’ if su isfaction of the demand, in any way — as hy set-satisfaction &cf</p> <p>The practice of ful question in tofurie is not confined. to those cases where witnesses are to he when the chaned with doubtful questions of fact, ile may have the aid of a jury— the decision must be upon the written evidence the record, as mon^teto he In-traduced. Ante,</p>

<p>Chancery.</p> <p>From the Circuit Court for Mason County.</p>

<p>One of the owners of the stock in a clothing store quarreled with his two partners, expelled & excluded them, & having the store, and goods,he tookthe account books, also, into his exclusive possession, and retained them, until they were forced from him by an attachment. But there is no proof (tho’ it is aUedged,) thathemade any alterations in the books while 'they were thus inhis possession; and the mere fact of taking the books, and refusing to give them up, in such a case, is not sufficient to prevent them from being :at least prima faide evidence of the affairs of the concern.</p> <p>Three of the account books were purloined from the auditor to whom the cause had been referred: but as the auditor had made abstracts of them, and there is no proof that the partner who was charged with it, took them, their contents, thus preserved, is al-</p> <p>Two traders, each goods fentered a thelí stocks. Soonafmitted V third fakíof his A kill A separation hav month is afterwards, the 2 first partners filed a bill in chancery, against the third, for a dissolution and settlement; in which, bill, verified by their affidavits, they state the amount of the cap ital at about $6,-OOCl But the proof shows that the company did in fact, operate, upon a capital of upwards of nine thousand dollars, consisting of the. stocks which the first 2 had when they commenced, with additions from their separate resources, made at and after the time original bill is the Amount of to Prefer to Swimt “partners, and as suppie erftaiMB bothindicate that there was a mistake in stating the amount of capital, in the original bill — it is held that the complainants shall not be restricted to the amount stated in that bill, as the sum to which they are entitled, as a return of capital, but shall be allowed all that the proof shows them entitled to — which, upon consideration of the facts and evidence, reoited, is fixed at nine thousand dollars.</p> <p>Comp’ts claim the amount contributed by them for the capital of apartnership:the proof shows that they contributed at least a certain sum, and probably more; but as the onus probandi is upon them, as comp’ts, they must be restricted in their recov ery,to the smaller sum; especially, where one of them was the book-keeper and ought to have kept the books so that they would show the true state of fairs, and what each partner put into the stock. the company’s af-</p> <p>One member of a firm ejected his partners, and retaining possession of the store, retailedthe stock upon his own account. Upon the bill of the ejected partners, for a dissolution and settlement, they obtain a decree for a considerable balance: the deft, is liable for interest on the balance from the time of filing the bill.</p> <p>a partner whose has made the cessaiy for, his co-partners tore sort to a suit i« chancery to obtain a fair settlement, is liable to them for their costs — including what they have been taxed with as their share of compensation allowed to the auditor for investigating and adjusting the accounts.</p> <p>And tho’ the sum allowed the auditor, seems to be extravagant, as the party on whom the payment ultimately devolves, does not complain, and there is no 'data in the record by which the labor can be estimated — this court declines to interfere with it.</p> <p>This court will not order a certiorari, after a decision, upon the mere statement of counsel, in a, petition for a re-nearing, .that a paper of importance was used in the case, that does not appear in the record.</p>

<p>Three bills — filed by creditors of the sons retamed nulla of trust traders in of vent debtors jas signing all their effects to trusef it of sudfcredtonf as ayassent to the aragree to accepttoned to Prtheir debts, of the net pioceeds of the property conveynifying ttetrns*?ggs obtaining some that wa Pr°Pnder attachments, pay ing stipulated sal aries to the trustees, compensation to their assistants,and other expenses. The conveyance was duly recorded; most of the creditors advised and assented to it, and all.had notice of it: but the complainants refused, and, charging that, upon various grounds (vide post,) the conveyance is fraudulent as to them, attempt to subject the property conveyed, to their debts. — But all fraud being denied, the object appearing to he fair and equal; and there being no proof of any fraudulent intent — the conveyance is sustained.</p> <p>Assignments by debtors for the benefit of preferred creditors hav been held good; & an assignment by a debtor of all his effects for the benefit of all his creditors, or those of them who shall agree to a pro rata distribution, is unquestionably valid.</p> <p>A stipulation in the deed of trust, made by insolvent debtor, for the benefit of their creditors, that salaries shall be paid to the trustees out of the trust property, and that they may employ agents, and pay them out of the proceeds, is neither indicative of fraud, nor improper. Nor is the employment of one of the grantors as an agent in managing the business-the trustees being responsible for his acts.</p> <p>Goods were attached by a eh. order — to be restored to the debts. bond with Seouforthcoming 16 pay the decree, wards, assigned finding hole of the who stipulated to give the required bond, & pay the decree (if proceeds of the goods: there was no impropriety, or evidence of veyance, in Norirf Kirizing the trustees to defend the attachment suits, and pay the expenses out of the assigned effects. And, tho’ the debts for which the goods were attached, were admitted to he just, the trustees might well question the jurisdiction of the Chancellor, or the validity of the proceeding, without subjecting themselves to a charge of bad faith, or their deed to the imputation of fraud. See the Petition and Response, post.</p> <p>Facts held to be sufficient evidence, prima facie, of a good consideration for a deed of trust, made for the benefit of the grantors’ creditors.— Securityship undertaken by the trustees, to obtain part of Ore goods that were attached, would alone constitute a valuable consideration.</p> <p>The possession of chattels retain ed by the vendor after an absolute sale, is per se, evidence of fraud. But this principle does not apply to mortgages, or deeds of trust.— And where one of a firm who had assigned their ef fects to trustees for the benefit of their creditors, was retained by the trustees to aid them in executing the trust, and so remained in possession of the goods convey ed — such continued possession is held to be no evidence of fraud.</p> <p>Where it is consistent with the terms and object of a sale of goods, that the vendor shall remain in possession — his possession is not conclusive evidence of fraud; tho’ it is a fact from which fraud may be inferred; or, which may,on the other hand, be shown to be consistent with good faith.</p> <p>Creditors who have filed bills to set aside a deed of trust, and sub ject the effects conveyed,to their debts, and have failed in that object — the deedbe ing valid, may have the benefit of the surplus after the claims provided for in the deed,are satisfied. But where it is obvious that there is no surplus, their bills maybe dismissed at once.</p> <p>just, appear in a If the intent of a deed is to hinder and delay creditors, it is against the statute and void, tho’ made upon a good consideration, or fox the equitable pur pose of an equal distribution of an insolvent grant- or’s effects among his creditors. But to defeat the deed the fraudulent intent must he proved: it is not enough that it may be sus péeted. And if a good consideration, and an object apparently . . conveyance, a Chancellor should not imply a bad motive, upon slight grounds.</p> <p>Where it appears on the face of a deed of trust, that the object of it is to prevent a sacrifice of a debtor’s property, that shows an intention to obstruct creditors in subjecting the property to their debts, and the deed is, ipso facto, invalid. So, also, if the same facts are established by proof aliunde.</p> <p>Where the apparent purpose of a deed of trust was to secure a just distribution of the grantors’ effects among their creditors; and the trustees, being authorized to employ agents to assist them, retained one of the grantors for that purpose, the fair inference is — not that the deed was made for the purpose of securing to him a proiiatble employment — but Iona fide for the avowed object — especially when the deed was made at the instance of several of the creditors.</p> <p>Any man may defend himself if sued; and where failing traders as signed all their effects for the benefit of their creditors,and authorized the trustees to defend certain attachment suits, that had been instituted against them, no inference of fraud arises fiom the fact that the trustees were au thorized to pay the expenses of defending out of the assigned effects — the debt- or’s only means. Nor does the fact that the defence proved unavailing, malte any difference.</p> <p>The suretyship undertaken, by the trustees, a good consideration to uphold the deed oí trust in this case.</p> <p>A conveyance ¡ip parently valid, Cannot be deeméd fraudulent, merely because the same grantors had previously made a conveyance of the same property, which was abandoned as fraudulent and void. The provision in ¡a deed of trust, made for thebenefit of creditors, that if two thirds of them concurred in desiring it, the deed should 'be cancelled, and one made to themselves directly,is an evidence of fairness, rather than of fraud, in the deed.</p> <p>The assent of ere-of trust made by their benefit may be given by the attorney holding their claims: for within the scope maybe nferred that they sanctioned what was thus for their ben.</p>

<p>The action and pleadings.</p> <p>Facts proved upon trial.</p> <p>Mortgagee,by aecepting the mortgage, admits the mortgagor’s title, and neither he nor any claiming under him, can assert any greater right, without showing that the mortgage title was subsequently enlarged.</p> <p>The pltf. in reple him to Vdntain iiad the time of the taking complained of, either the possession, or the immediate right to it; consequently, where plaintiff claimed under a mortgage, and the evidence conduced to prove that the mortgagor held the possession by contract — instructions that, if the pltf. held a valid subsisting mortgage &e. the law was for him, were erroneous; because they did not submit the question of possession to the jury.</p> <p>The statute subjecting the interests of mortgagors to execution, makes no reference to the state of the possession at the time of the levy; and, as a levy on personal property implies that the officer takes possession of it, when an execution against a mortgagor is levied on the mortgaged propertyi n possession of the mortgagee,the of ficer has a legal right to assume the possession & control of the property between the levy & sale; and the mortgagee cannot maintain replevin— which lies only for an unlawful taking — to regain the possession— thereby defeating or postponing the effect of the execution. And a failure of the efficer to recognize the mortgage (because he did not know of it, or doubted its validity) it seems would not render the levy and seizure unlawful.</p> <p>If in any case where an ex’on against a mortgagor is levied on the mortgaged property, it can be taken from the officer, by replevin,by the mortgagee, the right is subject to this limitation— that it must be surrendered for the sale of the mortgagor’s interest.</p> <p>A party who sets up title under a mortgagee,virtually admits, that, when the mortgage was made it was the only available title, {vide sup.) and, in such case, instructions predicated upon evidence of a previous absolute title —as they might mislead the jury —should not be given:</p> <p>The fact that advances by a father-in-law to his son-in-law, had been made along time, & were not evidenced by any writing, might authorize a jury to presume that they were never intended to be re paid, and therefore insufficient to uphold a mortgage: but those facts do not of themselves create a presumption of law that the mortgage was satisfied.</p> <p>A change of the date, and redelivery, of a mortgage, may convert it into a new deed.</p>

<p>Statement of the case'</p> <p>One of two part advaced tirioe as of the expenditures as the other; when the contentóme to ofeeis who took his place in the partnership; and the mem executed against itiesof the parta mortgaget from his vendees, he sold them, to chase6 money nerdfod1 and his former partner his adm’r,to re-lie had advanced, more than the decedent had advanced, for the firm, while they were equal partners — claiming it merely as an individual debt of the decedent to himself. His bill was dismissed upon the ground that, the demand was properly a debt of the partnership, from which the retired partner was exonerated, and which was cast upon the firm as newly constituted, by the sale, and especially by the indemnity: — Held that the decree, dismissing the bill (as above,) is no bar to a subsequent suit by the same complainant, asserting the same demand against the existing partnership, and to enforce a lien on the partnership property for its payment —as a lien superior to the mortgage. For the questions, of the liability of the new firm, the existence of the lien, its superiority to the mortgage, were not involved in the former suit.</p> <p>Expressions used by_ the Court of Appeals in delivering an opinion must be understood as limited to the case presented in the record, if not to that stated in the opinion; not as concluding any right not litigated.</p> <p>When a partnership is closed by the intervention of a court of eq. the court orders a sale of the part nership property; and, (the debts &c. due to strangers, being first paid,) each partner who has made advances,beyond his due share, on account of the firm, or to whom there is a balance due from the part nership, is reimbursed or paid out of the partnership funds; & if any one has failed to furnish his due share of capital or advances, the deficit constitutes a debt from him to the firm, which may be retained out of his share in the division; and, after the several partners are thus made equal, the funds and effects then remaining as joint stock, will be divided among them, according to the terms of the part nership. Each partner has thus a lien on the part nership stock, for his extra advances, or the balance in his favor on the partnership account —which is, in effect^ lien on the share of each of the other partners —— which, though it may not be enforced before a dissolution, continues as long as the property remains joint stock. So, where a partner sells out, the pur chaser takes only the interest which his vendor was entitled to, according to these principles: that is, takes it subject to such reduction of the nominal amount, as may be caused by reimbursing other partners for their extra advan ees &c. — or making up the vendor’s deficit to the firm.</p> <p>Where new part-firm by purchase of a retiring partner’s interest, agreeing, at the same time, to indemnify him against all debts of the partnership, the presumption must be, that they had a sufficient knowledge of the state of the partnership affairs; and, if their vendor was debtor to the firm, at the time of the sale, the purchasers must be presumed to have known it, and cannot be viewed as purchasers without notice of the consequential lien (utsup.) upon the share purchased. And, even if they had no actual notice, the lien of another partner upon the share sold, would not be affected, unless he participated in some deception practised in the sale. Consequently, where a partner sold out, while his partner had a lien on the partnership stock, and therefore on the share sold, for extra advances, and the vendor took a mortgage upon it for the purchase money, the Hen is an elder and better equity than the mortgage, and the sum secured by the lien must be paid out of the partnership effects, before any portion of them can be applied to the mortgage debt But the mortgage takes precedence or the lien, for advances made subsequent to its date. And the amount secured by the lien, may be varied by inequalities in the subsequent advances, or receipts, of the several partners.</p> <p>To a bill to foreclose a mortgage which some of the members on their interest in the nerds’ neccessary party.</p>

<p>Former reversal.</p> <p>An answer and cross of the cause to the senting new facts and questions.</p> <p>A deft, in oh. is swer anydeharge confessed would subject him to punishment,penalty or forfeiture, When a party submits to answer, he must an to this generaí many exceptions ouíof which te where the answer respndent or for Sturefine</p> <p>The objection, in such a case, may answer; but the better practice is to plead or de-</p> <p>When a bill is such facte as are allegedin the bill sumed with ent knowledge but not answer as’ confessed!—</p> <p>,... When a bill, not answered at all, fesXed^oXwant of an answer, every specific charge is consid—whether”114^ the*13defendant’s own ^knowledge tho’ the confesfeet thedeft.Stoa criminal, prosecution, or forfeiture: not only betoanswer iXtaken as a contempt which, subjects the deft, to such consequences;— but because it is understood to be a concession of the matters alleged, and a waiver of objections to a decree upon them.</p> <p>oessary, because the compt. may Under the statute of this State, a bill may be taken for confessed at the term next succeeding that to which the sub poma is returned executed, without any other pro ceeding — unless the deft, (being an infant, lunatic, &c.) is incapable of answering. — Or an answer may be insisted on, and coerced by attachment: which is sometimes nebe unable to make his allegations so specific as to authorize a decree, without a discovery.</p> <p>To a bill in eh. to subject the property of non-residents to the payment of a bill of exchange indorsed by them, they answer,¿¡charge, that the bill was negotiated for a loan made at Wheeling Va. by the compt. as an agent transacting buitate, by any association &c. not there incorporated; & by which thebills notes and bonds, so passed, are declared null and void, and all concerned as agents &e. are liable to heavy penalties. The compt. being required to answer this cross to doo — itiPaf legations might be taken as confessed, and the demand asserted in the bill, and the attachment, defeated. — But the Bank of Maryland is an indispensable party.</p>

<p>An ex’on against one of several partners, may be' levied upon his' interest in the' partnershipproperty; and, if the property consists of divers articles, the debtors interest in the-whole should not be sold in gross, but the articles: should be taken separately, and Ms undivided interest in each one should be-sold by itself— unless the peculiar character of the articles would make it improper to separate them: the sale should be conduetedjustas it would be, if the debtor was sole owner of the property levied on.</p> <p>But query — whether the officer making the sale may deliver the articles sold to the purchaser.— If he cannot, still an unlawful delivery would not affecta legalsale; nor be ground for quashing it.</p>

<p>The decree — to by which the Louisville ch'r injoined the Railroad co. from running or using cars or carriages on a part of Main st. m that city.</p> <p>The incorporation of the oo.— with power to locate & construct a rail road; the completion and useofsome parts of it; and particularly, of a portion extending from Portland, through Main st. to 6th st. in the city of Louisvillejlo coated,con structed & used, with steam cars &c. in conformity to a privilege granted by the mayor and council of the city.</p> <p>Bill, by numerous complainants, chiefly owners of houses & lots on Main st. alleging, that the road and the ears running upon it, are a nuisance, purpresture &c. -with injunction &c.</p> <p>Answer of the co. denying the facts charged, (as above,) as grounds for the injunction.</p> <p>Final decree perpetuating the injunction, upon, grounds stated.</p> <p>Recital of facts case and effects to them Rnesses differ.</p> <p>The streets of a established, not only of the special conven who may purcent lots such proprietors have use, facilities & easements, hereditaments incorporeal, in cident to their tities — which neino rioealSpubiic ean claim, and violable as the ty in he lots)</p> <p>An ordinary road div?duaíiiasay special interest ox right of way-may be discontinued, ox applied to a new use, without the consent of the local public, ox any individual. And the government of a town ox city, may grade the streets or appropriate them to new uses, notinconsistent with the objects to which they were first dedicated, without the consent of the owners of adjacent lots, or compensation to them: yet where individ uals have peculiar rights in a st. (mí sup.) it may be unconstitutional to discontinue it, close it up, or appropriate it to any purpose incompatible with its original dedication, without their con sent, or a just compensation to them. For—</p> <p>The Oom’th cannot take private property,foreven the most urgent public purpose, without the owner’ s consent, or just compensation made.</p> <p>The Com’ th may take property for public uses (just compensation be ing made,) thro’ the instrumentality of a rail road or turnpike company, or any other corporation or association. The public can act only through the agency of individuals; and when the privilege of making roads, or other improvements, for general use, is granted to any incorporation or association, it becomes the agent of the public; and all the rights — including the right of taking private property for public uses — which the State has, may be exercised through that agency, as well as any other; and all rail roads and other improvements, so constructed, are public roads or improvements; notwithstanding the tolls which they produce, may be appropriated — as they may be, constitutionally and lawfully — to the exclusive use of those persons (constituting corporations or associations) by whose capital and enterprise they have been created.</p> <p>The city government of Louisville had a right to permit the Lexington* Ohio Railroad Company to locate, construct and use the road in a street of the city; and having done so, no writ of ad quod damnum was necessary, unless the road, or some se made of it, was a purpresture or nuisance injurious to private property or private rights; it could not beso considered, unless the road itself, or some use made of it, was inconsistent with the objects to which the street was riginally dedicated.</p> <p>The railroad used tteete of ville could be no breach of the compact with Virginia, nor of apy contract with the purchaser of lots, unless private rights were injuriously affect ed by it. But— If it was a purpresture or nuisance injurious to, individuals, the chancellor might protect them, by-stopping the use of 'the road, by his injunction.— But where tha road and the manner of using it were authorized by both the legislature and city authorities, that power of the ch’r should not be exercised for such a purpose, without strong grounds, clearly established.</p> <p>A purpresture is an enclosure, or appropriation, for private use, ol that which belongs to the public. And—</p> <p>proof in this The'Lexington & Ohio- Rail Road, within the city of Louisville, being so constructed, (according to the proof case,) as not to occupy the streetm rvnich.it is placed or any portion of it, exclusively_every part (asrvell that in wnieh the rails are placed, as the rest,) being generally open and free for the ordinary purposes — it cannot be deemed either a purpresture or nuisance._That the company may hereafter monopolize the use of the street, or that the oharUK allows it t* ¿o so, does not malts the road a purpresture or nuisance new.</p> <p>That the company, may hete & ter arrogate. exclusive right in the fetteet, does not prove, or tend to ptove, that it is how a nuisance or purpreature.</p> <p>The lact that a cuduge in the lnoued ux travel rnay nave nad au injurious me Dusrnes or isms a meet, is no funcuok pmaie piopeiny or individual, mual be affected to just uy u.</p> <p>Neither the government a oily, nor oi tne State, can license a private nuisance, or uyte, or euoroach on, private property, wujiuui tne owner's cunseut, or payment oi nis damages juor can euner government apprupnaie uij till eat lo any use to whioii it was not originallyaeuioaieu,with out tne consent ot ait inose wno have individual rights ox property, oriranemses,’ in tne street or its uses. tnu the tact that a new use is made of a si. — not tnoonsis tent with us original purposes, will not entitle the owners or tenants of adjoining lots to compensation,or to an injunction to prevent such new uses. — ihe owners otiots in cities and towns purchase them subject to all advantages and disadvantages from changes occurring in trade, travel, transportation, ótc. iSd as the rail road in Louisville was authorized by the Legislature, and by the munioiDal government, and is an improvement in many respects advantageous to the city *nti general public, and destructive of the private rights, special privileges and franchises-of bo oneyit cannot (as this Court thinks,) he deemed a nuisance;</p> <p>Conclusion,upon, the evidence— that the rail road, with the use of a single hoise-ear, or single steam-car, or with a train of cars from 60 to 90 feet long, passing frequently, every day, along Main st. in Louisville, — being managed prudently, (as heretofore) not interrupting materially any of the ordinary uses of the st. nor preventing a free passage across it — cannot be deemed a nuisance, nor justify an injunction to prevent the use of the ears, as heretofore — or any limitation or curtailmen to fit: tho’ the road and ears might be used, in various ways — some of which are here suggested-which would justify the interposition of the Chancellor. And should abuses hereafter occur, the city authorities, have the power — in the right reserved in their grant of privileges to the eo. to apply an effectual remedy. Videpost.</p> <p>Should any injurious abuse of tbe privileges conceded to tbe rail road by the mayor and council of Louisville, occur — they may exercise the right —which they reserved in making the grant — of revoking it. Or the co. may be restrained, or their operations may be regulated by injunction, upon such clear proof as will justify the interposition of the Chancellor.— But the proof in the record before this Court, is not sufficient to authorize any such interposition-which is all that this Court now decides; a ease presenting a different state of fact, might require a different decision, and would not be affected by this.</p> <p>Upon a bill charg & Louisvme the steam ears &e. there used, were a perpresthrcb granted xestra ningCt tbé oo. from running ears there — without requiring of the complainants any bond to pay any damages which the defendants might sustain by reason of the injunction. The company answered, denying the charge; and, making their answer a cross bill, they pray for damages occasioned by; the suspension of their privileges and business. The complainants having failed to sustain their ease by proof, their hill is to he dismissed, by the mandate of this Court; but, as no bond was required of the complainants, and it does not appear that they instituted, or prosecuted, their suit maliciously, or without believing that they had good cause — they are not liable for damnges, and the decree dismissing the cross bill is affirmed. The complainants can only he made liable, in such a ease, by showing that their suit was malicious, as well as groundless — and then, the remedy, it seems would he at law, not in chancery.</p>

<p>References to 2 former decisions, and several questions heretofore settled, in this case.</p> <p>If, in the ex’on of a judgment in. eject, more land is delivered to the pltf. than he has recovered, deft, may obtain restitution, by motion. So, where the pltf. fraudulently or deceitfully obtains a surrender (without a ha. fa.) of more land than his judgment includes, the deft, may obtain an order of restitution, for all that the judg’t does not include.</p> <p>In ejectment for land' which had been surrendered to the pltf. who had obtained a judg’t of eviction against the deft, and had leased the land to him— the deft, may show that he was induced, by the fraud or deceit of the plaintiff, to surrender, and include in the lease, more land than the pltf. had judg’t for; and, as to that part of the land, may thus defeat the action. — So also, where thro’ mistake, or misapprehension, as to the extent of the recovery, the defendant has surrendered, and has accepted a lease from the plaintiff, of some land that was_ not included in the judgment, he is not estopped by the lease, from disputing the lessor’s title; but may defeat his recovery, as to so much as was surrendered solely thro’ mistake or misapprehension.</p> <p>And as to so as was nurento ed merely in con-upon the deft, or partaalone the running of the statute of limitations of seven be stopped by the ordea sei nender</p> <p>But if the posses dered Vaundereia mutual mistake as to the extent fliehe possession shoud be considered as amicable running11 of the tenwRopeniy dis laílía assumed to hold iadversely.</p>

<p>The parties,plea-, dings, and issue</p> <p>The Validity of a will was contested by a bill in ch’y, which — admitting that the will was executed in due form-— alleged that the testator was insane — his mind affected with an insane aversion to, and prejudice against,one of his sons, when the will was made; and that he was induced to malee it, as it was, by the fraud and undue influence of the principal devisees. These allegations,the answers deny. The issue, to be tried by a jury (under the statute, S. L. 1543,1 “whether the writing produced be the will of the testator or not’ ’ — should be so framed as to present the question,whether the allegations of in.sanity, fraud &c. are true or not; and the onusprobandi being upon the comp’is, their counsel have the right to open and conclude the argument to the ju-</p> <p>One of several defts. discharged their counsel, so far as they represented him, m order that he might personally cross examine a witness; but the interests of all the defts. were identical; the counsel continued to represent the others — else he would not have discharged them, as he admitted, &they did notexonerate him from liability for their fees. The circuit court refused to allow the party the privilege he claimed; & this court— conceiving that the proceeding was a mere manrauvre to evade a rule of court — approves that decision.— The fact that the party was not injured by it, (as he had the full benefit of a thorough cross examination) is another reason for sustaining it.</p> <p>Instructions, upon an issue in ch. to try the validity of a will— that the paper produced is prima facie a valid will; & that ‘the burden of proof rests upon the compts. to show that, at the time of its execution, the the testator was of insane mind and memory, or that he signed, executed & published the same, under the' influence of an insane and unfounded aversion to his son-, one of the pltfs. or that it was pro cured to be executed & published by the fraud, undue influence and importunity of the defts., or some of them’- - presents a correct exposition of the law: there was no error, in refusing to instruct the jury that the facts relied on by the complainants to destroy the will, must be made out “by the clearest and most satisfactory proof:” such as would satisfy the minds of the jury, was all that the law required.</p> <p>The validity of a will would not be affected by the mere fact, that it was obtained by the importunity of devisees; and therefore, an instruction that if the jury believed it was “obtained by the fraud, undue influence or importunity of the defts. they must find for the pltfs.” were erroneous. — But correct instructions having been also given, viz. ‘that, unless the will was obtained by undue influence and importunity&c.they must find for the defts.’ and it was not likely that the jury were misled by the slip in the one instruction— it is held not to be sufficient to set the verdict aside.</p> <p>A verdict upon an issue in chancery, made up,in obedience to the statute of wills, to try “whether a writing produced, be the will of the testator or not, which shall be tried by a jury, whose verdict shall be final between the parties, saving to the court a power of granting a new trial for good cause,as in other trials” (S. Law, 1543,) is not like an ordinary verdict upon an issue in a chancery cause, — --which must satisfy the conscience of the chancellor, or be disregarded; but is like a verdict in a common law action, and can only be set aside on grounds that would be fatal to a common law verdict. And—</p> <p>In a common law ease, anew trial will not be granted on the ground that the verdict is contrary to the evidence, unless it is palpably so. And—</p> <p>Where the court below has refused a new trial moved on the ground of verdict against evidence — the error must be flagrant, to induce a reversal by the Court "of Appeals — whose ed,in such cases, with great caution and circumspection.</p> <p>insanity not always did not exist S* á particular penod, is often a perfeplexing question question for courts and juries.</p> <p>Certain symptoms or indication of insanity or monomania described.</p> <p>Summary of the Siou of a majority of the Judges that the july might reason a the haooMluseion was oF unsound mina, or was in-the will as it was, fluence aftern the them and Thatf the jury having ever sustained the circuit court— this court ought .not to disturb it.</p> <p>Lunacy apt to escape the notice of the casual observer. Lunatics sometimes display a remarkable degree of pen etration and sagacity — eminently calculated to deceive the most acute observer.</p> <p>Conclusion upon the jury would filble finding against the win, upon the single consideration of exeralse by the option that where a son ad: father which ge earersion and absolute hostility, and other sons — instead of effect are concil vintage f tim peculiar temper\ oesfand excited fathe\ stiií fur6 Jher to inflame him, widen and perpetuate the Tilw qf affecting “ the father, who will, which is didinheriteds, and larger shares given to the others, they should be deemed to have exercised taht sort of undue influence over the father, which renders the will invalid.</p> <p>Keyiew of the pinion that, it moreT than^thJi toa^a^anSf strong feelings and violent passions — was addicted to intoxication — producing in him, as it does in many others, a peculiar sensativeness and excitability, extravagant notions, and occasional fits of great violence and absurd raving — all of which subsided when the liquor ceased to operate —leaving his naturally strong and acute mind to its ordinary, rational impulses; that when he first went to make the will, at each of several times when he returned, after some progress had been made and the writing suspended, and at its execution, he was free of insanity and intoxication — cool, deliberate, circumspect, and entirely competent; and that there is no evidence whatever, in the record, of any fraud or undue influence on the part of the devisees, in procuring the will; and that the proof, upon the whole case, is wholly insufficient to sustain the verdict.</p>

<p>The bin — its alt legations and ob-</p> <p>Answer of Taylor, originally the principal defendant.</p> <p>Answers of other defts.</p> <p>New parties admitted as co-complainants. — Taylor’s death, and revival of the suit against his representatives.</p> <p>Exhibits — including the record of an ejectment, in which the complainants got judg’t for 1000 aeres — the largest of the two tracts now in eontrover sy, against Taylor ;who reversed the judg’t & sold their title — at an enormous sacrifice — under his ex’on for the costs, and purchased ithimself —the eject, then stillpending: after which, it was abandoned by col lusion of the de- * Pltfs’-</p> <p>Depositions,</p> <p>Decree of the Lou. Oh. Court and appeal.</p> <p>The title exhibitpiainants being tfell light to relief in equity depends upon their establishing a trust or fraud in relation to the land in controversy; and, as to one tract (500 acres,) for which there was no ejectment fraudulently defeated, and which was not sold under execution, and as to which no fraud, or trust, is made out in proof, the bill -was properly dismissed, without prejudice.</p> <p>To sustain a collector’s deed, for land sold for U. S. revenue, and make it available as a defence to an eject, uponanother title, there must be proof that the sale was made in conformity with the act of Congress.— The existence of such a deed, with out such proof, will not authorize the interference of a chancellor to remove it, as an obstruction to the legal remedy.</p> <p>Where a party in possession as agent, obtains an adverse title,and attempts to hold for himself, the remedy of the owners is at law: it is not a fact that will give the ch’r jurisdiction.</p> <p>Where a party-goes into cn. to have a sheriff’s sale set aside, it it appears thathe isentitledtohave the title that was sold conveyed to him, in consequence of fraud on the part of the purchaser, in the sale, or otherwise, he will be entitled to a decree for the possession, also: unless the deft, sets up another and better title, or shows an adverse possession, of such duration as the statutes of limitation will protect. But— If the eompt. at the time of the sale, had not a title on which he could recover the possession at law, the ch’r will not give him the possession. If when the fraudulent title which obstructs the recovery at law, is removed, the eompt can recover m eject, the ch’r should decree the possession: otherwise, not.</p> <p>A court of law has jurisdiction to set aside an ex’ on sale, for fraud: andcourts of equity have', also, jurisdiction of the same matter, which, tho’ concurrent, not exclusive, is nevertheless, independent,¿¡plenary; so that when it once attaches,, a complete remedy may he afforded; for whenever the rights of the parties can he ascertainddhy the chancellor, they may ,be effectually secured by his decree.</p> <p>Compts’. title to the one thousaud acre tract — its corners & lines.</p> <p>mo^ames — his coméis & lines.</p> <p>£wo ^fooo"^ cíes, in a paraltimes as long as Js and afsfences of both precisely the same: the same surveyor andthepresumption from that fact, is, that they la^to^mterfere, but to lie side by side. So placed, the two exterior coméis of each, are identified, and the lines connecting them, and foiming a parallelogram containing neaily, but not quite, 2000 acres, the quantity of both surveys; but no dividing line is found. If neither that line, nor any marked corner for either endof it, couldbe found, each survey, being made upon its proper side of the large parallelogram, must be extended from the exterior side line, towards the opposite line, so far as to include the quantity; and, the area being insufficient for both, they would interfere in the middle, and the elder grant would take the lap. But, as some trees are found in one of the lines which forms one end of both surveys, which, though not marked as comer trees for these surveys, agree with the calls of the patents, and are not far from where the corner, for an equal division, would be, they are presumed to he the same called for in the patents respectively, as a comer of both surveys; and a line from thence, parallel with the side lines, is adopted as the true.dividing line — and the more readily, as it gives to the elder grant about its full quantity, leaving the deficiency to fall upon the junior grant.</p> <p>' Keéital of evidence relating to the possession of the land in controversy.</p> <p>Taylor’s documents of title.</p> <p>'Evidence conducing to show that Taylor, was acquainted with the position of Thruston’s survey, as early as, 1807, and knew that it belonged toWhiting’sh’rs; and that May’s survey lay in the south side of the area of2000 acres and could not be extended northerly so as to interfere much .with Thruston’s.</p> <p>A man at he has, hy proof of his mere opinions, tionlatioñ Butwhen aman can show as he can mate hfeoroac^and intentions, ana facts and pre them Ms claim ^ayparoTbproof of countervailing declarations aerei tingy to Ssueh facts. So, where one rslxes upon possession and Citation, roof ions oralmisawns, goiug to tion with which andheídthep^session — whethright, or as the ofeano°ther — are Active.16 an¿</p> <p>Session of üíatSi patent, to d tract In 1798, and at various times afterwards, up to 1807, a party advised andpermitted persons to settle upon the land of certain non-residents; & in 1807 and subsequently, he admitted tenants and received the rents —representing to them and others, that tho’ notaduly authorized agent of the owners — who were infantheirs —he had been requested by their friends and relations, to act for them, and was acting as their friendtopreserve and improve the land &c. for them. But having, at some subsequent period, set up title in himself, and being sued in chancery, by theheirs,' in 1832, for the land — still held by him, he shows that, in 1811, he purchased an adjoining tract, under which he alm controversy; but it is evident that that title did not, andhe musthave known that it did not, cover the land in controversy. In 1808, he acquired a title under a junior .... . which-interiered partially with thatm controversy; tint never settled any tenant on the interference, and said that the purchase was for the benefit of the heirs. Ini 820, he located a treasury warrant, and obtained a patent; including ihe residue, and proved that he had previously, settled some of his children on the land, but it does not appear when they took possession. Upon these facts, with some minor circumstances, it is held that, the possession thus originally taken, for the-heirs, by their friend — who was bound to show when his possession became hostile, cannot be deemed to have been so, previous to the location of the treasury warrant, in 1820, and the limitation did not, till Ihen, begin to run in his favor.</p> <p>Though a party who has assumed to act as the friend and quasi agent of non-resident land owners, might renounce the agency, at any time, without breach of trust or contract, he could not, at the same time, retain the nessionofthe ; nor can he make the possession, when it has become hostile, operate retrospectively, so as to make the statute of limitations commence before the possession became openly hostile, or deprive the owners of the benefit of the possession previously held for them.</p> <p>Disabilities, of coverture and infancy, of some of Whiting’s heirs. And, where several co-eompl’ts sue for land, as co-parceners or joint tenants, the disability by coverture or infancy of some of them, will save their rights from the operation of the 20 years limitationlaw, and the rights of all from the 7 years law.</p> <p>singto^eafriend of certain non-assumed an avfíg05and mpro-. Ind havin perl mitted settlers to settle upon and clear portions of rentedufandrefor several years!</p> <p>deemed and ^ eject: was abanAt length, he acquired some pretended titles to the land, & claimed and held it as his own. The heirs employed an agent to recover the land; who brought an eject, and obtained judgment for it. But the judgment was reversed — forsome defect in the proof, whiehmighthave been supplied on a new trial — for which the case had been remanded. While it was still pending in the court below, and altho’ the rents received by the def’t, and still in his hands, exceeded his judgment for costs in the court of appeals, he, nevertheless, took out an ex’n for those costs, levied it on the land, sold the title of the heirs, and purchased it himself, at $50, when it was worth $6000, or more. The land was redeemable within one year: but the non-resident heirs relying upon their agent, were ignorant of the sale. The agent didapply to redeem, but was bribed bythepurchaser, with $500, to abandon his agency: the land was therefore not redoned, neglected and dismissed. Held, that, upon all the facts of the case, taken together, the complainants are entitled to a decree for a conveyance to them of the title of the defendants, (heirs of the original defendant) and for the possession.</p> <p>some of the h’rs -who became coeomp’ts by an amendment made after this bill was filed — were not lessors in the ejeet. nor did their title pass by the execution sale; and they would, therefore, have had no right, independently of their connection with the other comp’ts, to come into equity, tore-cover thepossession of their land: but, being connected in interest, andneeessary parties to the suit — who would (if def’ts) have been entitled to relief upon a cross bill— they are held to be entitled to the same relief as their co-eomp’ts. B eing entitled also, to an interest, as heirs of some of those whose land was soldunder execution— they are, as such, and to that extent, proper co-interest, _ they whole claim, and o^th^gromd’ as the contravenshould not be</p> <p>The eomp’ts arc coun^ofients’* f^eyei-^ainst tiocs-cannotexf?ví yeais *°“cem|ntofthe suit. But the rent for previous years, may be set off against any claim for improvements and. ameliorations upon tie land.;</p> <p>-Mandato.</p>