Volume 39 — Kentucky Reports

<p>Chancery.</p> <p>From the Circuit Court for Marion County.</p> <p>Decided by Chief Justice Robertson and Judge Marshall, in the absence of Judge Ewing.</p>

<p>Land mortgaged while there is an ex'on against the mortgagor in the sheriff’s hands, is still subject to the levy; and the title of a purchaser at the sheriff’s sale, will be superior to the mortgagee’s; but if a sale of part of the land satisfies the ex’on, the mortgage will be effectual for the residue; and if the estate, not being divisible, is sold, entire, for more than the amount of the ex’on, the mortgagee may have an equitable right to the surplus. But when a sale bond is taken for the surplus, to the def'tin the ex’on, he has a vendible title to it, and his assignee takes it subject only to the rights of the parties to it: not to any lateral equity of a stranger; and, as against a bona fide assignee, for a valuable consideration, without notice, the mortgagee has no available equity.</p> <p>The mortgagee, in such case, to avail himself of his equity, must foreclose; and, to that end, must bring the necessary parties before the court.</p> <p>If the mortgage includes property which is also included in an elder mortgage—the bill must show that the later is a subsisting incumbrance, and the property insufficient for both debts; and the elder mortgagee must be a party: the omission of these allegations, will be ground of demurrer; for without them, the assignee of the sale bond will not be deprived of its benefit.</p> <p>The holder of the legal title will not be compelled to make any discovery, to enable a stranger to the bond, in such case, to avail himself of an equitable right to it, without an allegation that the former is not a trustee for the assignor, or otherwise not a bona fide assignee for a valuable consideration, without notice: no such presumption, not alleged, will be indulged.</p> <p>The registration of the mortgage is not a notice that can affect the assignee of the bond—who claims no interest in the property mortgaged.</p>

<p>Chancery.</p> <p>From the Circuit Court for Bracken County.</p> <p>Decided by Chief Justice Robertson and Judge Marshall in the absence of Judge Ewing.</p>

<p>Chancery.</p> <p>From the Circuit Court for Greenup County.</p> <p>Decided by Chief Justice Robertson and Judge Marshall, in the absence of Judge Ewing.</p>

<p>Chancery.</p> <p>From the Circuit Court for Mason County.</p> <p>Decided by Chief Justice Robertson and Judge Marshall, in the absence of Judge Ewing.</p>

<p>On the 20th Nov. the creditor in a replevin bond, required the sheriff, who was about to levy the execution, to indulge the debtor till the 15th of the next month; and the ex’on—returnable Dec. 6—was returned without being levied. Another execution was issued promptly; but was returned no property found, the debtor having become insolvent; but it appears that the surity was in no wise prejudiced by these acts;—held, therefore, that he was not released.</p> <p>The lien of an execution, in the hands of the sheriff, before it is levied, is intended for the security of the creditor against alienations by the debtor, of property liable to the execution: it does not operate against other creditors who obtain prior levies; nor does it extinguish or suspend the liability of a surity.</p> <p>Mere forbearance to levy does not deprive a surity of his right to pay the debt, and proceed against the principal—as a binding novation, or a levy, might; and, therefore, does not exonerate the surity.</p> <p>If a surity can show that the debt, or part of it, would have been made by a levy on property of the principal, but for the creditor’s interference which prevented it—the surety will be entitled to relief in equity, on the ground that the creditor was a quasi trustee for him, as to so much of the debt as the levy would have saved.</p>

<p>Reputation of maternity is admissible, as well in suits for freedom as in other cases; as where, the plaintiff’s evidence being only her color—apparently white, exhibited to the jury, proof that she was 40 years old, and, in the family where she was born and raised, was always called, and reputed to be, the daughter of a colored woman, a slave in that family, was admissible.</p>

<p>A conveyance of land is a revocation of a will, by which the same land was devised; even tho’ the devisee and grantee are the same person; for he will take by the deed, not by the will. And tho’ the deed is cancelled in the life time of the testator, as he had divested himself of the title by the conveyance, the will will still be inoperative without a republication.</p>

<p>The action and pleadings.</p> <p>Trials, and principal question.</p> <p>An indorsement on a copy of a will, to which the authentication of the copy, does not expressly apply, is not sufficient evidence, that the persons named in the indorsement as the ex'ors, are so. Surprise, by the rejection of documents that had been used, without objection, on two former trials — shown by the party’s affidavit-is good ground for a new trial.</p> <p>By affirmative pleas, all averments not traversed, are admitted: so, a plea of covenants performed, to an action by ex’ors, admits their right to sue in that character.</p> <p>A plea of covenants performed, with leave to the defendant to give in evidence any matter that he might plead availably, will admit proof on the part, of any thing that he might prove under any special plea; but does not impose upon the plaintiff the duty of proving any thing in the first instance; as, where he sues as ex’or, such an issue and agreement do not require him to prove that he has a right to sue in that character-a fact admitted by the affirmative plea. But—</p> <p>Where there is a condition precedent to the right of action — as no breach by the defendant, can be presumed till performance on the part of the plaintiff is shown — it is incumbent on him, under a plea of covenants performed with leave, to prove performance on his part.</p>

<p>An indictment charging the def't with “keeping a tippling house in the town of P. by then and there retailing, &c.” charges only a retailing in that town; not that it was in a house kept by him for that purpose.</p> <p>To constitute the statutory offence of keeping a tippling house, there must be a retailing of liquor, without license, in a house kept by the retailer for that purpose: an indictment that charges only that the def’t kept a tippling house by retailing in a certain town, will not justify the fine of $60.</p>

<p>Indictment.</p> <p>From the Circuit Court for Nelson County.</p>

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

<p>Whenever any person, freeman or slave, has been committed to prison, to answer a criminal charge by examining justices, they may admit him to bail, if the case will admit of it: the recognizance of the master to be taken, where the prisoner is a slave.</p> <p>To that end, they may issue a writ of habeas corpus, which must be obeyed, by bringing the prisoner before them; or if the jailer produces him voluntarily, the writ may be dispensed with; and the recognizance will not be void, for that cause.</p> <p>By an act of 1800 (2 Litt. laws, 418) the owner of a slave may bail him, in any case where a white man might be admitted to bail.</p> <p>The statute (of 1800,) provides for the bailing of ‘any person committed under this act:’ but there is nothing in the act itself by virtue of which any can be imprisoned: held that it should be applied to the case of any prisoner committed under any law of the state.</p> <p>As, by the constitution ‘all persons shall be bailable, by sufficient securities unless for capital offences, where the proof is evident or the presumption great:’ so, by the act of 1800, sup. any slave is bailable, on his master’s recognizance unless the examining justices are of opinion that there is a strong presumption that he has been guilty of a capital offence.</p> <p>Voluntary manslaughter by a slave is a capital offence; but bailable, unless the proof is evident, or the presumption strong, of the prisoner’s guilt; of which the mere fact of commitment upon the charge, by examining justices, is no evidence, to prevent his being bailed.</p>

<p>As any one of several joint tenants or tenants in common may take possession for all, he may (unless the others prohibit it) maintain an ejectment for all; and the exhibition of the common title, is prima facie, a sufficient answer to a rule on him, to show his authority for prosecuting the suit.</p> <p>The decision of a county court establishing a will, is conclusive, till it is reversed, or virtually set aside by a decree, in a statutory proceeding, in chancery; its validity cannot be questioned in another suit; as where it is offered as evidence of title, in an ejectment.</p> <p>The wills used in this case, with the possession under them, were sufficient evidence of title.</p>

<p>The interest of a witness may be shown, by examing him, upon his voir dire, or by other evidence—at the election of the party objecting; when the interest is established in the lattermode, the witness cannot be examined to refute or explain the proof of his incompetency, or for any other purpose.</p> <p>The declarations of a witness out of Court, are not admissible, to prove him interested. But the admissions of the party calling him are.</p> <p>The only interest that disqualifies a witness, is a direct interest in the event of the suit—clearly established. In doubtful cases, the objection goes to his credibility.</p> <p>In an action on a warranty of the title to a slave, it was proved, as an objection to the competency of a witness, offered by the pl'tf, that both he and the witness had said that the latter was interested in the profits of a lot of slaves</p> <p>that had been sent to the south, of which the slave in question was one: this does not prove the witness incompetent; he may have had such an interest, and none in the event of the suit. To disqualify him it should have been shown, that he was interested with the pl’tf in his purchase, or in the damages he was suing for.</p> <p>A mere sub-purchaser of a slave has no interest in his vendor’s contract of purchase, that disqualifies him as a witness for the latter, in a suit upon his contract of purchase : a waranty does not run with a slave as it does with land.</p>

<p>The facts.</p> <p>The assignee of a note or bond—to secure a right of recourse upon his assignor, must—if there is time after the assignment, and after the note is due—bring suit, in the proper court soon enough to get a judgment at the next term. But it is not necessary that the suit should be bro’t as soon as the assignment is received; it may be deferred until there will be only sufficient time-allowing for ordinary contingencies-to issue the process and have it served in time for a judg’t at the first court after the assignment.</p> <p>An assignee is not generaly held to as much vigilence & promptness in bringing and prosecuting his suit, as is required of him in the enforcement of his judgment.</p> <p>Eight days is deemed a sufficient time to allow for the service of the process, in a suit upon an assigned note, where the def’t is generally to be found within 6 or 7 miles of the court house.</p>

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

<p>Chancery.</p> <p>From the Louisville Chancery Court.</p>

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

<p>A def’t in ch. denies that he was duly and timely notified of the protest of a bill: this is not a denial of all notice, tho’ a sufficient answer to a general allegation of due notice; and an amended bill stating that ‘at such a time, a notice was sent by mail, to such a place, and was there received by the def’t, who had no residence’ being unanswered, must be taken as admitted, notwithstanding the denial of the general allegation in the original bill.</p> <p>The allegations of a bill, remaining unanswered at the hearing, must be considered as admitted, without any order taking the bill, or part of it, for confessed.</p> <p>Where a party to a bill of exchange is a transient person, having no known residence—notice of protest, sent by the first mail, to a place to which he very frequently resorts, is sufficient. And if he shows that another place is his usual resort, as his home, still if it appears, that if the notice had been sent there, he could not have received it sooner than he did, it must be demeed sufficient.</p>

<p>Case.</p> <p>From the Circuit Court for Mercer County.</p>

<p>The claims of the parties, respectively‘ to the land in controversy; and questions arising upon them.</p> <p>Two returns of 'not found’ on a scire facias, operate (by an act of 1801,) as service of the writ—unless the defendant is an inhabitant of some other county in this state, than that of the returning officer. But judg’t on such returns (“two nihils”) is expressly prohibited (by an act of 1796,) unless the defendant is resident in the county, or is absent from the state.</p> <p>A sheriff’s return of ‘no inhabitant’ proves that the defendant is no inhabitant of his county; not that the defendant is, or is not a nonresident, or absent from the state—a fact which a sheriff could not certify officially.</p> <p>Two returns of ‘not found,’ will authorize a judgment of revivor, in sci. fa. where the defendant is out of the state; and that he is so—being a fact entirely consistent with the return, may be proved by evidence dehors the writ & return. So—</p> <p>Where the record of a judgment on a sci fa. is offered as evidence, and it appears, the judg’t was rendered on sheriff’s returns of ‘not found,’ it cannot be deemed void, but may be sustained by parol proof, showing that the defendant was not in the state at the time; or it may be presumed that the judg’t was founded on sufficient proof of the fact.</p> <p>A mortgaged estate was about to be sold under a decree, for the debt, when the mortgagor, mortgagee, and a third party, agreed, in writing, that, if a reasonable price was not bid for the estate, the third party, as trustee, should buy it in, pay off the debt, and hold the estate in trust for certain creditors and for his own indemnity; and that when those ends were answered, the estate should revert to the mortgagor. In pursuance of this agreement, the party made the purchase, and obtained a commissioner's deed which, however, was silent as to the agreement, and purported to pass a complete title, in pursuance of the decree:—</p> <p>The agreement, prior to, and independent of the deed, could not have the effect of revesting the title in the mortgagor.</p> <p>Continued occupancy of the estate by the mortgagor, during his life—14 years only, does not raise a legal presumption of reconveyance.</p> <p>If a jury might find that the purchaser took the conveyance to defeat creditors—that fact would not make the estate assets in the hands of the heir; for tho' the conveyance might have been fraudulent and void as to creditors, it was effectual to pass the title as between the parties to it, and prevent the estate from descending to the heirs.</p> <p>But, if the heir acquired the conveyance from the purchaser, without consideration or mala fide with a knowledge that he had no rightful lien upon it, the law would consider both of the conveyances fraudulent, and, without circuity, hold the land liable as estate descended.</p> <p>But if the heir, to obtain the title, paid part of the value of the estate, bona fide, out of his own funds, tho’ the residue of the consideration may have been his claim as heir, or the heirship of himself, and a coheir, for whom he received it in trust; still, the conveyance to him, being entire and indiscriminate, no definable part of the land could be deemed legal assets in his hands, subject to ex’on, as such. Though a court of equity might afford relief to a judgment creditor, so far as the heirship was the consideration.</p> <p>If a scire facias to revive a judgment against two heirs is served on one only, a judgment taken upon that service, against both, will be void as to the def't on whom there was no service, yet valid, tho’ erroneous, as to the other.</p> <p>A jury was misinstructed, that a certain judg’t (ut. sup.) was entirely void: if they had based their verdict on that instruction, it must have been for pl’tfs, for part of the land in controversy: it was for the def’ts for the whole; and the instruction, it seems was not prejudicial to the pl’tfs, and the judgment against them, is therefore (hesitatingly,) affirmed.</p>

<p>Statement of the controversy.</p> <p>Separate warrants, issued at the same time, may be maintained, it seems, for several sums (not exceeding $50, each,) due by one covenant, though the aggregate exceeds a justices’ jurisdiction.</p> <p>In the construction of covenants the intention of the parties must govern, and determine whether they are dependent or independent. If it appears that a party received the covenant of the other, as the consideration upon, his part, relying on his right to enforce it—he will be left to that remedy. If, on the other hand, he looks to the performance by the other party—not relying on his agreement to perform—the performance will constitute a condition precedent; as where a sum to be paid, is the consideration of some service to be performed, or, if a thing to be done, or a service to be rendered, is the consideration of an instalment to be paid, then the doing of the thing or the rendering of the service, is a condition precedent to the payment.</p> <p>A man covenanted that two boys—which he was to board & clothe, should serve a master 3 years; for which, the master covenanted to pay the man, so much per an. in quarterly instalments, and teach the boys the carpenter’s trade: held that the words ‘for which’ should be understood as applying to the service, not to the agreement that the boys should serve—and so the 3 months’ service is a condition precedent to the payment of the instalment due at its expiration: & must be averred and proved by the plaintiff, to sustain his suit; or, its non-performance maybe proved by the defendant to defeat the recovery.</p> <p>One stipulation of a contract by which a master agreed to pay quarterly instalments for the services of two apprentices, to a party who was to board and clothe them—was that if the boys were taken away before their term expired, he should forfeit half the wages for the time they worked: held that, in an action for an instalment, the master, by showing that the boys had been taken away, might reduce the recovery one half; or, if he had paid up, might recover back half the amount of the wages accrued, or use the claim to restitution as a set-off to the amount due for the time the boys did serve.</p>

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

<p>Trespass.</p> <p>From the Circuit Court for Henry County.</p>

<p>Motion.</p> <p>From the General Court.</p>

<p>Ejectment.</p> <p>From the Circuit Court for Bath County.</p>

<p>Soon after the dissolution of a partnership, A, one of the two partners, executed two notes, payaable to B, the other partner, who had undertaken to wind up the concern—that he might sell them, and raise money to pay debts of the late firm.—The notes, however, were not sold, but retained by B; who paid off the debts of the partnership, and who brought suits, and got judgments, on the notes, against A. The partnership accounts having been adjusted, afterwards it was found, that its effects had not paid the debts, and that, after A was allowed a credit by B, for the two notes, he, A, was still B’s debtor, on the partnership accounts: held that, B may, under these circumstances, consider himself substituted for the expected purchaser of the notes, and the chancellor should not interpose to prevent him from enforcing his judgments.</p>

<p>The bill, answer &c. and questions for decision.</p> <p>In a suitin chancery, to recover the sum due upon a lost note, the comp'ts own affidavit of the loss is, prima facie sufficient to give the court jurisdiction, and justify a decree, if the facts of the loss are detailed—as they always should be—and appear probable; though the defendant does not admit the loss, and declares he does not believe the complainants statement of it; for the party's affidavit would be sufficient at law; and, is, in general the only proof that the case will admit of.</p> <p>There can be no decree against a non-resident, upon on a warning order and traverse, for the sum due by a lost note, without proof of the amount, date &c. But, if there is a resident, and non-resident obligor there may be a separate decree against the former, upon allegations of the bill, taken pro confesso.</p> <p>Complainant in his bill on a lost note, states the amount, date & time when it was due. Defendant in his answer admits the execution of the note, but the amount, date, &c. he says are not recollected, and therefore he does not admit &c. Compt. was entitled to defts. best recollection and belief; and as he neither admits, nor denies, the answer is considered so evasive as to entitle the complainant to a decree.</p>

<p>A man and wife settled, in 1814, on a tract of land belonging to her father, under his verbal assurance that he would convey it to his son-in-law. The wife died in 1833; and her father, soon afterwards, according to promise, and without any other consideration, made the deed to his son-in-law-reciting in the deed, that the land was part of the portion he had given his son-in law, with his daughter-& died, intestate & without having made any writings evidencing the gifts to other children, of the lands on which they had settled, in the same way:—held that, this gift and conveyance of land to the son-in-law, must be deemed an advancement to the daughter; and her children, coming into partition with the other heirs of their grandfather must bring it into hotchpot—at its value at the time of the conveyance. As to the valuation—vide post. p. 88.</p> <p>The provisions of the statutes concerning advancements and hotchpot, stated.</p> <p>Leading English cases, upon advancements, cited, and the governing principles—that the Court should endeavor to give effect to the intention of the father, and produce equality among the children, &c.—approved.</p> <p>The value of an advancement at the time when it is made, is (by the act of 1830,) the value at which it is to he brought in hotchpot. But where a father advances a child by a verbal gift of land—which could not be enforced, and might be revoked—but is afterwards confirmed by a conveyance, the value of the land at the date of the conveyance, is the value at which it is to be brought into hotchpot.</p> <p>Every advancement should be charged at its value at the time when the gift became complete, and irrevocable, in law or in equity.</p> <p>Land verbally given as an advancement, and sold by the donee with the donor's consent, should be estimated, in hotchpot, at the price for which it was sold.</p>

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

<p>The bill—its object and allegations.</p> <p>Seizure of deft’s goods; his answer; restoration of the goods, upon bond, in pursuance of the order of seizure.</p> <p>A supplemental bill.</p> <p>Proofs.</p> <p>Decree.</p> <p>Principal question.</p> <p>That a party who had purchased goods, and given his note for them, had obtained the credit by false & fraudulent representations, intending never to pay for the goods, would be grounds, for a bill in chancery, to rescind the contract, and have the goods restored.</p> <p>But these facts, or the fact that a party may go into chancery, to rescind the sale and obtain a restoration of the goods, cannot change the character of a note, given for the goods, from amere legal, to an equitable demand, or give the Chancellor any jurisdiction to enforce payment of the note, by a seizure of the goods, or otherwise—even where the goods can be identified in the hands of the purchaser.</p> <p>Query, whether an assignment of the note, would carry with it the right to go into equity, to rescind the contract, and get the goods.</p> <p>A charge, in a bill, that a def’t. who is sued at law, has secretly removed his goods from his store, and will, as complainant believes, remove</p> <p>them from the country, or sell them and secrete the proceeds, so as to prevent the judg’t from being satisfied when obtained, cannot have the effect of trauslating the case from the common law tribunal, in which it was commenced, to a court of equity. The most that the ch’r can do, upon such a bill, is to aid the common law proceeding—as by preventing those acts by which the efficacy of the judg’nt is threatened, or securing the complainant, against them.—But—</p> <p>Where the allegation in a bill, upon which a seizure of the deft’s goods is prayed for, is in the alternative,—that compt. fears deft, will either remove the goods out of the country, or sell them—unless the fear of either of those acts, would of itself authorize the proceeding, the allegation will be insufficient.</p> <p>To sustain a bill to subject a debtor’s effects to the payment of a debt it must appear that he is a non-resident, or that an execution against his estate, has been returned nulla bona; one of these allegations, it seems, must be made to give the court jurisdiction, or at least, to justify a final decree.—Anallegation that comp’t. believes that deft. (against whom he has a a suit depending, for a debt,) will, by the sale or removal of his property, place it beyond the reach of legal process, is not sufficient to authorize the attachment of a resident debtor’s goods. The chancellor will not interpose to prevent him from selling them within the state; & tho’ there might be an order, upon proper allegations, to prevent the removal, and detain the goods to be subject to an execution on the judg’t at law, an allegation in the alternative (that the debtor will sell or remove his effects,) will not justify even that. The allegation must be as direct and unequivocal as the statement required in an affidavit to hold a deft, to bail.</p> <p>Query—whether where two debts exist, one due, the other not, & good ground is shown, by bill in ch’y, for a seizure of enough of the goods of the debtor, to satisfy a judg’t. about to be recovered on the debt due—the chancellor can go further, and seize enough to satisfy the other debt also.</p> <p>Besides the allegation, in an attachment bill, of a judg’t. and return of nulla bona against the deft. or that he is a non-resident, it must appear that there are effects of his within the jurisdiction, on which the chancellor can proceed in rem.— So—</p> <p>Goods were seized under a chancellor’s order but (in pursuance of the order) were restored to the def't. upon his giving bond with security, to satisfy the decree; and the comp’t. afterwards obtained judgt. for his debt, and the ex’on was returned nulla bona, as he showed by an amended bill; but as he also shows, the deft. had, in the mean time, taken all of his effects out of the state, there can be no decree, as there is nothing left on which the chancellor can act in rem; nor can the bond (to satisfy the decree not to restore the goods) be considered as representing effects of the debtor, or afford any basis for a decree.</p>

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

<p>The bill and its objects.</p> <p>The 28th section of the statute of distributions—which provides that, when children of an intesttate, who have received advancements choose to come into distribution with others, they shall bring the advancements into hotchpot—applies, not only to those who have themselves received advancements, but also, to the children, or other representatives, of the donor, to whom, or in whose right, advancements were made, but who had died before the donor, and who, though they claim, as immediate distributees of the latter, claim in right of the former.</p> <p>Grand children claim a distributive share of their grandfather's estate, in right of their dec'd. mother; admissions of their father (that he had received advancements,) made after the grandfather's death, are not evidence a-against the grandchildren, as they do not claim thro' him. His deposition might be used to prove the fact</p> <p>In a suit for distribution, an administratrix was made defendant as such, who also claimed a personal interest in certain slaves of the estate. She employed counsel to defend the suit; who, it is presumed, was to attend to her individual interest also; and, in the absence of any definite proof as to the service rendered for each interest, one half is presumed to have been for her own benefit, and she is allowed a credit, as administratrix, for the other half only.</p>

<p>Parol testimony, to show that a deed, in terms an absolute conveyance, was not intended as such, but was designed as a mortgage, or other conditional conveyance—is not admissible at law; nor can it be admitted in chancery, unless there is an allegation, and some proof, that there was fraud or mistake in the execution of the deed, or some vice in the consideration. But—</p> <p>When an answer admits that a deed apparently absolute, was, to any extent or for any purpose, conditional, or in trust -the compt. may show the true condition, or the trust, by parol proof.</p> <p>But where an answer denies that there was any condition or trust, an admission in the answer, that the consideration in fact was different from that recited in the deed, as that it was payable at a future day, when the deed recites that it was paid, that it was such a sum, when the deed states a greater or less sum, &c.—will not justify the admission of parol proof to show, the deed was conditional, when it purports to be absolute.</p> <p>The recital in a deed, that the consideration was paid, is not conclusive that it was actually paid and not secured to be paid. Nor is a variation, in the amount of the recited consideration, from the true sum, such evidence of fraud or mistake, as will let in parol proof to change the character of the deed from absolute to conditional. Such facts admitted or proved, might tend to corroborate other evidence of fraud, or mistake or illegality of consideration.</p> <p>The grantor in a deed cannot, nor can his heirs, be relieved in equity, from the legal effect of a deed, which tho' intended to be a mortgage, was made absolute, to screen the property from other creditors.</p>

<p>An act of 1785, provides that,‘an acknowledgment of a deed’—by a non-resident-’ or proof by the requisite number of witnesses, made before any court of law, and certified by such court, in the manner such acts are usually authenticated by them,’ may be admitted to record here.</p> <p>A certificate of the clerk of the Gen. Court of Va. made by order of court, and under its seal, stating that, ‘at a court held, &c. the deed was acknowledged by’ the grantors (naming them) is a sufficient authentication under that act.</p> <p>It is in the usual manner of such acts by the courts of Va. and would be presumed to be so, from the fact of its being made in court, by its order.</p> <p>The statute does not require — nor should it be expected, that the acknowledgment should be recorded in the court where it is made, and a copy certified; the indorsement of it on the deed (ut supra) will do, tho’ it would be better if the manner of the acknowledgment were stated.</p>

<p>From the Louisville City Court.</p>

<p>Question—whether a bill of sale of slaves, was not a mere security for a loan, notwithstanding it purports to be absolute.</p> <p>Facts appearing.</p> <p>The pleadings.</p> <p>To a bill by a debtor, against the assignee of his note, to be relieved of usury, and redeem property apparently sold, but really pledged for the debt, and charging combination between the assignor and assignee—tho’ the combination is denied, and not proved, still the assignor is a proper party, on account of his privity and interest. A bill against an assignee, charges that the assignor, also a deft. extorted enormous usury from the compt. which is included in the assigned debt; the answer, silent as to the usury, virtually admits it; but neither the proofs nor pleadings are so specific as to justify any decree as to the usury; nor would the answer of the assignor, admitting it, be any evidence against the assignee: still it was erroneous to dismiss the bill absolutely as to the assignor. Deft. should have been required to answer specifically or an investigation had; or, as the assignor was not liable for restitution till the debt and usury were paid—the bill as to him might have been dismissed without prejudice, at the election of the compt.</p> <p>Upon a bill to redeem slaves held by an absolute bill of sale, upon the allegation, that the writing was intended for a mortgage only-if the answer admits that there was illegality in the consideration (as that it was infected with usury,) parol proof is admissible to show the true nature of the transaction, and even to contradict the written memorial.</p> <p>Detail of circumstances, which taken altogether, authorize the conclusion that a bill of sale purporting to be absolute on its face was, in fact, only intended as a collateral security.</p> <p>A party allowed to redeem slaves pledged to an assignee, to secure the assigned debt and other loans, is required to pay the debt with interest, excluding some usury on loans made by the assignee him-self, and deducting also, the hire of the slaves up to the date of the final decree.</p> <p>A party hired two slaves, at $150 for a year, and afterwards, obtained a bill of sale of them, to secure to a debt of the owner which had been assigned to him; when the year was half out, the owner, having to provide for another debt which he owed the assignor, obtained $200 of the hir-rer — $100 by giving up the note for $150—and $100 for the hire for another year: held, that this must be deemed one of many usurious transactions that occurred between the parties; and upon the redemption of the slaves, the hirer must account for their hire, at a reasonable rate, credited by the payments made.</p>

<p>Replevin.</p> <p>From the Circuit Court for Jefferson County.</p>

<p>Assumpsit.</p> <p>From the Circuit Court for Warren County.</p>

<p>Sci. Fa.</p> <p>From the Circuit Court for Jefferson County.</p>

<p>Motion.</p> <p>From the Circuit Court for Woodford County.</p>

<p>In the trial of an action for a slander, imputing a theft to the pltff. a witness stated, that he had been requested by the pltff. to find out what was said about him, and, listening to a private conversation—a part only of which he heard, between the deft, and his brother, he heard him say “he believed he had stolen the money,” and he inferred that the words related to the pltf. merely because his name was used in the conversation.—But this brother, as a witness for deft, stated that he made no such charge against the pltf. that his object was merely to inform the witness (his brother,) that the pltf. was endeavoring to fix the charge on him. This witness (the brother) was not impeached, nor was his testimony (as this court think,) irreconcilable with that of the other witness; yet the jury found for the pltf: held, therefore, that the deft’s motion for a newtrial—on the ground that the verdict was contrary to the evidence—should have been granted.</p> <p>Malice is essential to constitute slander; and tho’ it is generally implied from the fact that words naturally importing slander, were uttered, there are some occasions which will justify or excuse expressions or conversations, as being free of malice, which would otherwise be slanderous and actionable:as where a communication is made in discharge of some legal or moral duty to society; or, where a felony has been committed, & an interchange of facts & opinions takes place, with the view of discovering the perpetrator; or, where a communication, injurious to a party, is made confidentially, & bona fide, by a person interested or to a person interested, not to defame, but because it concerns the party interested, &c. &c.: in such cases, the words are not actionable—unless it appears that the occasion was a mere pretext, and that the speaing was with a malicious intention—of which intention the jury are to judge. It is not necessary that the words should have been spoken in kindness or friendship to the person to whom they relate, to make the occasion a justification.</p> <p>Mere secrecy will not alone rebut the presumption of malice; but it may confirm or aid the presumption of bona fide intentions, and absence of malice, which other circumstances may induce.</p> <p>Money had been stolen; a grand jury had an indict. for the felony, before them; a brother of the man who had lost the money, returning from the court, stated that fact, in answer to inquiries made of him, and said the general opinion was, that if such a one swore what he had stated, the accused would be convicted. This brother was afterwards sued for slandering the accused, by sayingthat ‘he believed he stole the money;’ and it appeared that the words laid in the dec’n, if spoken at all of the pltf were spoken in a private conversation with a brother of the def't. both being brothers of the man whose money was stolen, and were overheard by one employed by the pltf. to listen:—held, that the occasion, and the relationship between the parties afford a prima facie justification, sufficient to defeat the action—in the absence of any other proof of malice than what arises from the mere speaking of the words.</p>

<p>Assumpsit.</p> <p>From the Circuit Court for Franklin County.</p>

<p>The bill.</p> <p>Answers.</p> <p>Decree of the circuit court.</p> <p>A payment, restitution of which is decreed, having been made in promissory notes not due, it was error to decree interest from the date of the payment.</p> <p>Lands having executors (who decline acting,) ‘ to he sold by them,’ an administrator cum testamento has the same power to sell that they would have had, if they had undertaken the trust; and, as the administrator had no power over the land but to sell it, his power of attorney, authorizing his agent ‘ to transact all matters and things relating to the land,’ might invest the agent with a power to sell.</p> <p>Though a foreign adm’r. cum testamento, may be unable to sell lands in this state, which are devised to the executors, to be sold, because his authority is not recognized here—yet, where an agent sold land under a power from such an adm’r. the purchaser is presumed to have known the nature of the power; and the agent who made no false or fraudulent representations, cannot be held personally responsible.</p> <p>An agent, who has acted in good faith, cannot be made personally responsible, after he has accounted to his principal.</p> <p>Every defence which is available against a demand, may be used to defeat a bill in chancery filed to subject it to the satisfaction of a debt due from the party who holds it. And where there are concurent elective, remedies, at law and in equity, the chancellor will not sustain a bill to enforce a demand which is barred at law. So, where the statute of limitations furnishes a defence at law, if a creditor of the party holding the demand, files a bill to attach it, the garnishee may defeat the bill, by setting up the limitation.</p> <p>A lapse of more than five years from the time when a sum of money was paid to an agent, the death of the agent, and of his principal, the representatives of the latter asserting no claim against those of the former, are facts amply sufficient to impose on a party who attempts, by bill in ch’y, to reach the fund in the hands of the representatives of the agent, the burden of proving the continued existence of the demand against them.</p>

<p>Chancery.</p> <p>From the Louisville Chancery Court.</p>

<p>Action upon a policy of insurance.</p> <p>Its stipulations, and limitations of liability by the 'memoranda.'</p> <p>The declaration.</p> <p>Facts agreed or admitted.</p> <p>Judgment of the court below.</p> <p>A declaration on a policy of insurance, for a partial loss by damage to the goods, should state—& the proof must show—the cause of the damage, specifically, or, at least so far as to show that it arose from one of the perils insured against. And where, by a ‘memorandum’ attached to the policy (as there generally is) certain articles are warranted free of any average, or free of any under a certain rate per cent., unless general, the declaration must show that the goods, and amount of loss, are such, that the insurers are not exempt from liability by the warranty.</p> <p>A defective declaration may be cured by an agreed case; but a judgt. not warranted by the declaration, nor by the facts agreed, nor both, cannot be sustained.</p> <p>Further details of facts in the case: the terms of the contract of insurance; defects of proof &c.</p> <p>Explanation of the term "average" as used in policies of insurance.</p> <p>Where articles insured, are waranted free of average, unless general, the insurers are not liable (except for contribution under a general average,) unless there is a total loss. But query, whether they are not liable for an entire loss of a part of the articles included in the ‘memorandum’ of warranty, as one class.</p> <p>The judgt. including sums for partial losses, on articles warranted free of average, and on some not included by the terms of the policy—is erroneous, and must, therefore, be reversed.</p> <p>A policy of insurance, contains a clause, by which it is agreed, 'in effect, that such and such articles are warranted, free of average, unless general, such and such others free of average under certain rates—as 15, 10, 7 1-2pr. ct.—unless general: held that, where payment is claimed, upon this policy, for an injury, from one of the perils insured against, to goods within one of the warranties,—in order to ascertain whether the loss is so great as to make the underwriters liable, not withstanding the warranty, the amount of damage is to be compared—not with the total value of all the goods insured; nor with the value of the various articles to which the same warranty, or rate of average, applies, taken together; but with the value of that one of the several articles, specified in the warranty, to which the damage has occurred.</p> <p>The rule that, an instrument sho’d be understood in the sense most against the maker, is peculiarly applicable to a long and complicated instrument drawn, or adopted, by the makers, for their general use, and not for the particular case, and especially so, where the terms are obscure and perplexing.</p> <p>Where an insurance upon goods stipulates that the shipper may transfer them from one vessel to another, or into different vessels, as the exigencies of the voyage may require, and some of the articles insured are warranted free of average (unless general) the contract would seem to attach to all the articles, and to each class, not withstanding a re-shipment precisely as though they had remained in the vessel in which they were first shipped. Sed quere. The premium for an insurance is considered as part of the value insured; and in case of an open policy is to be added to cost and charges of the goods, to ascertain their value. And where a policy stipulates that, in case of loss, the insured shall abate so much percent., it is to be calcuted upon the amount of the loss—not on the value of the cargo, or of all the goods covered by the policy.</p>

<p>Statement of the case.</p> <p>A sale of land, carries with it, all the privileges and incidents essential to its natural uses; as the right of ingress and egress thro’ the land of the vendor, when there is no other inlet.</p> <p>In the sale of a small tract of land, valuable on land for the two paper mills that were upon it, the vendor, in showing the boundaries, fraudulently pointed out lines which were not the true boundaries of the tract sold, but included the stream & dam above the mills, and a trough leading the water from the dam to the mills: when, in fact, these things were all upon an adjoining tract, held by the vendor under along lease, and were not embraced by the boundaries described in the deed Tho’ the statute of frauds may be an obstacle in the way of compelling the vendor to convey the land shown and verbally sold, but not embraced in the deed—there is nothing to prevent the chancellor from restraining the vendor, by perpetual injunction, from destroying or injuring the stream, dam or troughs, so as to destroy or impair the use which the purchaser makes of them. And the chancellor may, in the same way, prevent the vendor from obstructing a private way thro’ his land, by which alone the mills are accessible.</p> <p>The statute of frauds prohibits the bringing of any action upon, any contract for the sale of lands, unless there is some memorial of the sale in writing, signed by the party to be charged; consequently, where a deed is so drawn as not to include some land embraced by the verbal purchase, and there is no other writing—however fraudulent may have been the conduct of the vendor in producing that result, the purchaser has no means of obtaining the residue of the land. But, if the dispute be referred to arbitrators, and the parties agree in writing to abide by and perform the award, this writing will constitute such ‘a memorandum or note of the agreement’ as the statute requires; and, if the arbitrators award that the land shall be conveyed, a court of equity may compel the vendor to perform the award, and make the deed.</p>

<p>The statute allowing a debtor to satisfy an execution, or suspend proceedings on the judg’t by giving bond, with Security (called a replevin bond) to pay it in 3 months provides that an ex’on may issue on the bond, at any time after it is due, & makes no allusion to a scire facias. The principle, therefore, that where a pltf. omits, for a year and a day, to take put ex’on upon his judg’t it is presumed to he satisfied, so that none can issue, without a revivor by scire facias, does not apply to replevin bonds.</p>

<p>The manner in which notice of the dissolution of a partnership must be given, to prevent a party with whom one of the firm may afterwards contract in the partnership name, from holding the others bound—depends, first, upon whether the party to he affected by the notice, has had previous dealings with the firm; if not, then, upon the nature and extent of the partnership business.</p> <p>Those with whom the firm has had dealings, are each entitled to particular notice. As to all others, a general, public, notice, calculated to circulate far enough to reach all who are likely to have transactions with members of the firm, will be sufficient, and is necessary. If there is a newspaper published in or near the place where the business has been carried on, the notice, in general, should be inserted in it. So—</p> <p>Where the two partners in a mill and cotton factory, in a small town (Versailles,) dissolved their partnership, and posted up written notices of the dissolution in 4 or 5 places in that town; and one of them, soon after, gave a note, in the name of the late firm, to a bank in Lexington 12 miles off: held, that the ct. could not say, this notice was sufficient; nor disturb a verdict for the bank, (which implied a finding that it was insufficient) as being contrary to evidence.</p>

<p>Debt.</p> <p>From the Circuit Court for Fleming County.</p>

<p>An obligation executed by several, to one of themselves, is of no validity, against him—as he could not bind himself to himself: but is good against the others, as their obligation to him. So—</p> <p>Where the name of a firm is signed by one of two partners, to a note payable to the other, it is, in effect, merely the note of the former to the latter; and the payee may sue his partner, or his adm’r, upon it, and must recover the whole am’t—as a court of law cannot apportion the debt.</p> <p>If there was any thing in the origin of the note, in consequence of which the party thus legally bound for the whole, should only be liable for a part, the remedy is in equity.</p>

<p>If an action upon a joint and several obligation, against all the oligors, is abated as to one of them, by a return of 'no anhabitants' or 'not found': or, if a suit instituted upon the joint and several obligation of the three, against two of them only, and they do not plead the non-joinder of the third in abatement, and judgement is recovered against the others—the obligation of the deft. as to whom the suit is abated, in the one case, or of the obligor not sued, in the other, is not merged in the judgement against the others; he remains liable; and a distinct suit may be maintained against him upon the same obligation, at any time before it is satisfied by payment or performance.</p> <p>Query—how it would be, if the obligation were joint only.</p>

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

<p>Motion.</p> <p>From the Circuit Court for Washington County.</p>

<p>Statement of the case.</p> <p>A widow may be endowed of an interest in land which her husband held as a joint tenant; for the statute of this state, abolishing the jus ascrescendi (in which the reason of the common law rule was to be found) has, in effect, changed the law in that respect.</p> <p>Nine heirs made a parol partition of a tract of land they had inherited; then, one of them received a conveyance from the others and the widow, of their respective shares—to enable him to make deeds to purchasers from any of the heirs. J. L—to whom lot No. 8 fell, had sold it, and the trustee conveyed it, with two other lots, to the purchaser, describing the boundaries of the entire tract, but not those of the three lots which were described by their numbers and the names of those to whom they were allotted.—The widow of J. L. (ten years after his death,) filed a bill for dower in his lot, No. 8; and showing those conveyances, and showing also, the boundaries of No. 8, by parol proof, as it was allotted to her husband, as stated in the deed to the trustee:—held that the deft. (the purchaser) is estopped by the deed to the trustee, under which he claims, and that to himself, from denying that the husband had such title, in law or equity, to that particular lot, in severalty, as entitled the widow to dower in it.</p> <p>The widow is entiled to rent of the dower withheld from her, after the filing of her bill.</p>

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

<p>A plea offered before issue joined, or plea pleaded, and which does not contain matter that accrued after a continuance—though it is in form a plea in bar of the further prosecution of the suit, cannot be considered as a plea puis darrein continuance.———Such a plea, filed with others; cannot have the effect of superseding them, nor be considered as a waiver of other pleas. The right to file it is given by the statute, which allows a defendant to file as many pleas as he will:</p> <p>A conveyance by the husband of a parcener, of his interest in the estate—though in trust for his wife, makes his grantee a tenant in common with the other heirs; so that they cannot maintain an action at law against him, for rents accrued after the conveyance, though he has had the exclusive use of the premises.</p> <p>Demurrer to a replication sustained, erroneously: rep’n withdrawn, and another filed, on which issue is taken: if, under this issue, all the evidence is admissible which the pl’tf. could have given under his first repli’n—as he escapes all injury from its being overruled, the error in sustaining the demurrer, will not be ground for a reversal.</p> <p>That an instruction given was calculated, when taken by itself, to mislead the jury, is not sufficient to produce a reversal, when other instruction given, may serve to explain it, and the verdict seems to be right.</p> <p>Heirs who, have refused to come into hotchpot, having received advancements, are not proper co-plaintiffs, in an action for use and occupation against a tenant holding the estate. The other heirs may sue for and recover all the rents accrued after the death of the ancestor, as before, as those that accrued after, partition.</p>

<p>Motion.</p> <p>From the Circuit Court for Anderson County.</p>

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

<p>Indictment.</p> <p>From the Louisville City Court.</p>

<p>Debt.</p> <p>From the Circuit Court for Scott County.</p>

<p>Ejectment.</p> <p>From the Circuit Court for Lewis County.</p>

<p>Ejectment.</p> <p>From the Circuit Court for Jefferson County.</p>

<p>Chancery.</p> <p>From the Chancery Court for Owen County.</p>

<p>Assumpsit.</p> <p>From the Circuit Court for Marion County.</p>

<p>From the Circuit Court for Pike County.</p>

<p>Statement of the case.</p> <p>The decree of the Lou. Chancellor.</p> <p>His conclusions upon facts, sanctioned.</p> <p>Tho’ the act ‘for the benefit of the mechanics of the city of Louisville’ which gives them liens on the buildings which they erect in the city, to secure their demands for labor and materials furnished,— provides that the amount due the claimants shall bear legal interest from the time when it was due by the contract—interest is not to allowed in every instance in which a mechanic may choose to avail himself of the act to bring his claim into the chancery court. The act requires that the chancellor shall first ascertain the amount of the demand, and render a decree nisi requiring it to be paid within a prescribed time; and in making the decree, it is discretionary with him to allow interest or not; if the sum due is not paid according to the decree nisi, the lien given by the act, is to be enforced by a sale of the property, and then, the statute gives the interest, as above. So where a mechanic, insisting upon more than, by his contract, he was entitled to—filed his bill to enforce his lien, a decree for the sum actually due (less than was demanded,) without interest, is approved.</p> <p>Costs in equity are within the discretion of the chancellor, and are not always allowed where a party obtains a decree.</p> <p>So, where the demand of a Louisville mechanic was resisted as exorbitant, & he filed a bill to enforce it under the lien law, and obtained a decree for much less than he claimed though more than was admitted, each party pays his own costs, in the court below.</p>

<p>Appeal from a J. P.</p> <p>From the Circuit Court for Campbell County.</p>

<p>Upon a bill to subject the land of a non-resident to the payment of his debt—the comp’t proceeding upon a warning order and traverse-must show by proof, the facts entitling him to a decree: e. g. the non-residence of the deft, must be proved; and where the debt is so ancient, that a presumption of payment arises, it must be rebutted by proof.</p> <p>The act of 1797, (S.L. 98) subjecting nonresidents’ lands to their debts, by suits in ch’cery, requires that the bill shall be sworn to; and it must allege that the debtor has no personal property, or not enough, in the state, within the comp’nts knowledge. And, tho’ the act of 1837 may have dispensed with that allegation, it requires an oath to the bill. A decree obtained without the affidavit, (under either act) is erroneous. And query, whether it is not void where the necessary allegations and affidavits are wanting.</p>

<p>Affidavits made out of this state are not admissible here. Nor is the certificate of a foreign justice of the peace, that an oath has been taken before him—except upon an answer in ch’y—entitled to judicial credence.</p> <p>Hence, an affidavit of the loss of a writing sworn to before a J. P. of Missouri, is no evidence here, of the loss.</p> <p>Query—whether the affidavit of 1 of several adm’s. that a paper belonging to the intestate’s estate is lost, would be sufficient to admit secondary evidence.</p>

<p>To an action on a note which two partners had assigned to the pltf.—def’t. pleaded that, before he had notice of the assignment, & in pursuance of an agreement within one of the partners, he procured a note of his to he given up to him; which he received in full satisfaction of the note sued on: this plea is sufficient to bar the action—tho’ it does not show that the note given | up was for as much as that sued on; nor that the accord &c. was before the note sued on was due.</p> <p>As the satisfaction was made at the instance of the deft. it is no objection that it proceeded from a stranger.</p> <p>Where a plea is, that one note was accepted in satisfaction of another, and it does not show that the former was for as much or more than that sued on, it must be taken that it was for less. But—</p> <p>The comparative value of 2 notes of different debtors, does not depend altogether upon their respective amounts; though it might, where nothing else appeared, or where two parties held the notes of each other; but in general, the ability of the obligor to pay, enters into the estimate; hence, a plea of accord and satisfaction, by the delivery of the smaller note of a third party in satisfaction of dft’s. larger one, which he was not able to pay—is good.</p> <p>An assignor who assigns a note without recourse, stating the defence that would be made to it, but assuring the assignee that it remained unpaid, will be liable, if it turns out that the note was in fact paid, before the assignment: he is, therefore, not a competent witness for the assignee, without a release.</p>

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

<p>By an act of 1793 it was provided, in substance, that ‘when any person who was bound by written contract, to convey any tract or parcel of land, sho’d die, intestate, or leave a will which did not provide for making the conveyance, and should leave infant heirs, the court of Qr. Sessions might, upon, the application of the adm’rs or ex’or, appoint three guardians for the infants, with power to make the conveyance;” and where a testator had bound himself to convey a tract of land to which he had an inchoate title, and having devised the land to his daughter, died, but neither named an ex’or, nor directed a conveyance, in his will—held, that the court of Qr. Sessions had authority to appoint commissioners to make the deed, and the testator’s title, being a legal one, it was not material that it was incomplete: the commissioner’s deed was sufficient to pass whatever title he had.</p> <p>Tho’ there is not, in the record of the court of Qr. Sessions, or in this controversy, any exhibition or proof of the title bond, or any evidence that the grantee (to whom the commissioners conveyed,) had a right to the bond, by assignment or otherwise, except the order of the court and the recital in the deed—it is presumed that, the bond was before the Court, and contained stipulations authorizing the conveyance as made. And this presumption is strengthened by the fact that the grantee was in possession of the land and retained it many years, and obtained the patent in the name of the devisee—all with her knowledge, and without complaint on her part, though she remained single for about seven years after she became of age.</p> <p>And though the order does not purport to have been made upon the application of the administrators with the will annexed; yet, as it appears that the tenant who had long held the land, and on whose application the order was made, was one of the administrators, and that the other, who was also guardian of the heir and devisee, had assented to and confirmed the proceeding, by a letter to the court—which is admissible in support of its authority, it should be presumed that the jurisdiction and authority was complete—especially where the record is very ancient. And if the court had jurisdiction, irregularities and errors in its proceedings would not render them void, or even questionable in a collateral proceeding.</p> <p>And after a lapse of 43 years, every presumption in favor of a judicial act, not shown to have been unauthorized, should be indulged.</p> <p>In the trial of a writ of right, the tenant introduced a deed which passed the demandant’s title to the tenant’s grantor—operating as an estoppel against her, and the jury having found against her right—held that the admission of another deed made by her, but not duly authenticated, though erroneous, as it did not prejudice her, is not cause for a reversal.</p>

<p>The original bill filed by Ward’s adm’r. setting up certain mortgages made to his intestate, by R. H. Grayson.</p> <p>Death of R. H. G. and of Pollett, a co-deft. after answering; bill of revivor and supplement.</p> <p>Answer of Mrs. S. G. (the widow of R. H. G.) and her cross bill; which makes the ex’or of F. W. S. Grayson a party.</p> <p>Answer & crossbill of the adm’r of R. H. G.</p> <p>Decree of the Louisville Chancellor; appeal &c</p> <p>Approval of the decisions of the Chancellor upon most of the points—which, being matters of fact, are not recapitulated in this opinion.</p> <p>Conclusions of this Court upon some of the matters of fact.</p> <p>Moneys are to be refunded in case a party fails to obtain a decree in a certain suit for land: whenever a decree is rendered establishing the right to the land, the contingent obligation to refund ceases, tho’ the cause may be retained for further proceedings upon collateral matters reserved.</p> <p>A party in chancery sets up a claim, and shows himself entitled, to an allowance for certain personal property, the value of which he does not profess to know, and which it appears he had not the means of knowing, but which he estimates, in his pleadings, at a specified amount viz: “at least $1000:” it was erroneous to restrict him to this estimate: what the proof shows the property to have been worth sho’d be allowed-tho’ it is double the amount of his estimate.</p> <p>Two different setlemenis occured after one of the parties had paid off a note as surety for the other; it is presumed therefore, that one of them included the note & it is disallowed in the pending controversy.</p> <p>A party purchased 3000 acres of land; paid for 1200 acres in other land; gave his notes for the balance of the price and took his vendor's obligation to convey the 1200 on demand; and the residue upon the payment of note-which still remain due. The purchaser sold half the land soon afterwards, and bound himself to make a title in reasonable time after he should obtain one himself. His vendee entered upon the land, used it extensively, and sold 200 acres to one who took and still holds the possession; the residue he retained for many years, and till his death: held that, the purchaser had an equitable title to the land while he lived, which, at his death; passed to his heirs; and it is not competent for the adm. to annul the contract, and convert the bond into a money demand; and the adm'rs bill, so far as it had that object, was properly dismissed, especially, as the subpurchaser (of the 200 acres) was not before the court.</p> <p>A deed contains a covenant of seizin secured by mortgage. There is a defect in the legal title, which amount to a breach of the covenant of seizin. But the grantee had mortgaged the and had been sold under a decree upon foreclosure and passed to divers purchasers, who had never been disturbed in their possession, and, as the equity is perfect, there is no difficulty in securing the legal title: under these circumstances, a court of equity will not sustain the claim of the administrator, as complainant, to damages, for a breach of the covenant of seizin.</p> <p>The possession of an obligation is prima facie evidence that it remains due, and if the obligation was payable when a certain debt due the obligor sho'd be paid, the later will be presumed to have been paid, and the former to have become payable, when there has been ample time to collect it, and nothing to the contrary appears.</p> <p>A party executed an obligation acknowledging that he had sold certain land, to the proceeds of which the obligee was entitled, and binding himself to invest it in bank stock, for the obligee’s use, when, collected (p 281) interest should be allowed, in equity, upon this demand, from the times when the instalments for, the land became due.</p> <p>A debt was payable on demand a cross bill, in which it was set up, charges that it had been frequently demanded, and especially on such a day; this not being denied by the answer, interest should be allowed from that date.</p> <p>It is most regular to decree accruing interest, under the act of ’37 (Ses. Acts, 207,) where a party is entitled to interest in chancery. But the cl’k may indorse the execution that the debt bears interest, & the omission of it in the decree, will not reverse it.</p> <p>Reversal, on the cross errors only, and mandate.</p>

<p>Covenant.</p> <p>From the Circuit Court for Montgomery County.</p>

<p>Chancery.</p> <p>Five Cases from the Louisville Chancery Court.</p>

<p>Two individuals convicted of keeping a tippling house together, cannot complain that they are fined $60 jointly—the sum for which each of them is liable.</p> <p>A tavern keeper, duly licensed, may have his bar room in an apartment which is not connected by any door way, with his main building, but separate from it; and may there retail spiritous liquors, by himself or partner, without a violation of law—provided this separate barroom constitutes, in good faith, apart of the tavern, and the license is not used as a fraudulent shield for a ‘grocery.’</p>

<p>The case.</p> <p>As the law makes the mother of a bastard a competent witness to prove its paternity, she cannot be required to answer as to her interest; the objection goes to her credibility only.</p> <p>Statements of the woman held sufficient to justify the conclusion that she was not married.</p> <p>A continuance was asked on account of the absence of witnesses; but the evidence of one of them (if what the affidavit stated it would be) would have been entitled to but little, if any, influence; the others would merely impeach the principal witness; the case had been continued before, and it did not appear why the witnesses were not attached, nor that they would attend at the next term: no reversal for a refusal to grant the continuance.</p> <p>Where there is reason to suspect that a continuance is moved merely for delay, the affidavit sho’d state (inter alia) that the attendance of the witness is expected at the next term.</p> <p>In the trial of a bastardy case the mother who, as usual, was the principal witness made statements as to matters not essential to the main fact, which if not palpably false, were highly improbable; but there was nothing proved inconsistent with her statement that the accused was the father of her child:—held that the decision of the county c’t.—before which the witnesses appeared—affording better means of judging of the whole case than the recital, probably imperfect, of the evidence in the record—should not be reversed, for that cause.</p>

<p>A prosecution, for a misdemeanor, may proceed in the absence of the accused, when he is under recognizance.</p> <p>To take judgt. by default, and call a jury to assess the fine, under the 10th sec. of the act against gaming, of 1833, was erroneous. The jury should have been sworn to try the charge.</p> <p>There is no law authorizing judgt by default in any criminal, or quasi criminal case in which a jury is required.</p> <p>Where the am’t of the fine is certain, and under £10, judgt. may be rendered by default, without an inquisition.</p>

<p>Bill—to attack funds of a non-resident in the hands of a resident defendant.</p> <p>Process and return.</p> <p>Appearance, and demurrer, by the non-resident defendant.</p> <p>Dem’r sustained, on the ground that the allegation of the bill, that the debtor is a non-resident, is not a sufficient allegation that he is absent from the state.</p> <p>In a proceeding, under the act of 1796, to subject debts or effects in this state, to the payment of a debt of a def't, out of the state—the bill must allege thatthe debtor is absent from the state. Query, whether an allegation that he is a non-resident may be deemed equivalent.</p> <p>Defts in the court of Appeals, who might be summoned by advertisement, are styled “non residents” in the act of 1823.</p> <p>The act of 1837, “to amend the law in relation to absent defts.”— by which, until then, debts & effects only, could be attached by bill chancery- gives the remedy to any creditor of a nonresident owner of lands; and does not contain the term absent deft. as descriptive of the person whose lands may be subjected.</p> <p>The act of 1837, which supersedes the previous laws under which the property of persons out of the state might be attached, and subjected to the payment of their debts—gives the remedy against both lands and goods— of 2 classes of debtors, viz. non-residents of this state, and persons absent from the state, or absent defendants, who have left the State to avoid the service of process, or have been so long absent, that one term of the Circuit Court for the county in which the absent defendant usually resides, has passed since he left the state; which fact must be stated in the bill; but this statement is not required where the defendant debtor is a non-resident. And query—whether the act does not give this remedy against all non-residents, whether absent at the time of filing the bill or not. But—</p> <p>Whatever construction may be put upon the term non-resident, as used in the statute (of 1837, providing for the attachment of non-residents’ lands, goods & effects,) the same construction should be put upon the same term when used in a bill in chancery, filed under that statute; and therefore, an allegation that, the principal debtor is a non-resident, is sufficient to give the court jurisdiction; and a demurrer cannot be sustained for the want of an allegation that the deft is absent from the state.</p> <p>Query, what effect the fact, that, the non-resident was within the jurisdiction when, the bill was filed, sho’d have when, shown by answer or plea, & proof.</p>

<p>A tavern license confers a personal privilege upon the person to whom it is granted, which is not transferable. Nor does the license pass with a lease of the house in which the tavern is kept.</p>

<p>Statement of the case</p> <p>To decree that, on the payment of a sum of money, a slave shall be surrendered—leaving it to he party to pay in the country, is irregular. The money should be bro’t into court, by a day fixed by by its order, and upon its payment there, the surrender should be decreed.</p> <p>A free man of color, who had a son who was a slave and about to be taken from the state by the owners removal, and desiring to buy the boy, intending ultimately to emancipate him, a party agreed to advance the principal part of the purchase money, and take the boy, and deliver him to his father, or do any legal act to secure his freedom, if, within three years, the father would refund the sum advanced, with ten per cent. annual interest, and ten per cent per annum for risking the boy’s dying:—</p> <p>Bill for specific execution (or redemption) sustained, without question; and—</p> <p>Held, that the father should be deemed the beneficial purchaser of the boy; and tho’ there was no stipulation on his part, to pay the sum advanced, it should be deemed a loan—the boy a pledge; the transaction not a conditional sale, and only six per cent for interest can be allowed on the advance.</p> <p>The stipulation to pay a rate per cent. for the risk of the boy’s dying (or insurance of his life,) was not unlawful—there being no evidence that it was a cover for usury, and the contract, in that respect, may be enforced.</p> <p>The party who advanced the money, held the boy, and had his services, is accountable for hire, at what the services were worth to him—common prudence being used in the management of the boy.—Mistakes in the written agreement corrected by the proof.</p>

<p>Debt.</p> <p>From the General Court.</p>

<p>Covenant.</p> <p>From the Circuit Court for Clarke County.</p>

<p>A county court has no jurisdiction of an action for the £10, that any person, who assaults & beats another upon account of any money &c. won at gaming, &c. forfeits to the party grieved, by a Va. act of 1748.</p> <p>Qu. wether the act is still in force and if its is, whether the Circuit Court or a J. P. now has the jurisdiction</p>

<p>A party having purchased a piece of woodland, entered upon it, built a log cabin, made rails, &c. and left it, for a temporary purpose, and was absent about two weeks, leaving his tools in the cabin, intending to move into it, in a short time. While he was absent, another person, who had rented the land from another claimant went to it, completed the cabin, enclosed it with a fence, made a door to the cabin, locked it up, with some articles of his own in it, and went away. The party who first entered, finding the place, upon his return, as the other had left it resumed and retained the possession, and the intruder bro't this warrant of forcible entry and detainer, to turn him out:—held, upon a trial of the traverse, in the case, that the acts of the deft. (who first entered) did not show any abandonment of the possession by him; his possession continued, notwithstanding his temporary absence; he was not ousted by the entry and acts of the other party, which were, in fact, mere trespasses. Instructions that the intruder could maintain the warrant upon his possession were erroneous; a verdict in his favor against the evidence, & ground for a new trial.</p>

<p>A verdict, in eject upon the demises of a part only of the lessors—not restricted to part of the land—must be understood as verdict for the whole and there being nothing in the record showing that other lessors had title—judgt. for the whole must he affirmed.</p> <p>Reputation as to an ancient boundary, is admissible as evidence.</p> <p>A title is not forfeited, by the 1824, champerty act of 1824, because a suit against an occupant, in the name of an adversary claimant is for the benefit of the vendee—if it was instituted by the latter alone, without the cooperation of his vendor.</p> <p>Before the statute is applied in such a case, the jury should be satisfied, that the vendee is prosecuting the suit, not only for his own benefit, but with the knowledge and express sanction of his vendor.</p> <p>If a judgt. in eject.—which, under our statute, will bar another action in the name of the same lessor—is given for deft., upon proof that the action is for the benefit of a vendee of the plaintiff’s lessor, tho’ without the privity of the latter, it would conclude him—tho' he had neither done, nor consented to, any act against law-an effect which should not be given to the statute.</p> <p>The only way in which a deft, can avail himself of the fact that the suit is carried on for the benefit of a champertous purchaser, in the name of his vendor, but without the consent of the latter-is by a rule upon the person prosecuting to produce his authority, and a dismissal of the suit his failure to do so.</p>

<p>Ejectment.</p> <p>From the Circuit Court for Garrard County.</p>

<p>Ejectment.</p> <p>From the Circuit Court for Jessamine County.</p>

<p>Where a note contains an express stipulation for the payment of interest annually or ‘at the end of each year,’ each instalment of interest bears interest from the time when it became payable.</p>

<p>Detinue.</p> <p>From the Circuit Court for Bracken County.</p>

<p>The facts of the case.</p> <p>One deft. a non-resident, tho’ notified of the suit, failed to answer. Answer by the other, showing the grounds on which he resists a decree.</p> <p>Dismissal of the bill by the court below.</p> <p>A colored man who has acquired a right to his children, born slaves, by purchase or otherwise, may maintain a bill in chancery for a specific execution of his contract of purchase or for their restoration when they have been wrong fully taken from him. For—</p> <p>A court of equity has jurisdiction to enforce a contract for movable property, or to coerce its restoration to the rightful owner, from whom it has been taken, whenever the property is of such a peculiar character that the recovery of damages, in lieu of the specific thing, would be but an in adequate or in appropriate remedy: as where the object is to regain a family portrait, an ancient vase, an heir loom &c. And there can be stronger case of that class, than where a parent brings a bill to coerce the restoration of a child that has been abducted from him, and is held in slavery.</p> <p>Conflicting testimony as to the contents of a lost writing—the memorial of a contract: several witnesses who had heard the agreement recited by party to be charged by it, one of whom was present when it was made, giving it one character; the subscribing witness giving it a character very different-the contents of the writing taken to be as stated by the two former witnesses—chiefly on the ground—other circumstances conducing to the same conclusion—that the agreement as described by the subscribing witness, would be incongruous and unreasonable.</p> <p>Tho’ the terms of a contract by which the owner of certain young slaves sold them to their father, may have been, that, if any of the instalments of the consideration were not punctually paid, or if the father should not treat the children well,—the vendor might revoke the contract: still, as all such breaches might be adequately repaired in damages, a court of eq. sho’d neither enforce, nor permit the exaction of the forfeiture. And one holding the vendor’s contract with full notice of all its terms; can be in no better condition than his vendor occupied before the assignment.</p> <p>The vendors absence from the state, and the failure to show any demand made in his behalf, exempt the vendee from the imputation of negligence or injustice.</p> <p>One who has taken away and detained wrongfully the children of a colored man, is liable to him, for damages, equal to the value of their hire.</p> <p>A party, by his failure to answer tho’ notified of the suit, admits the contract &c. set up in the bill; and a subsequent purchaser from him, of slaves sold by the contract, having notice of its terms, is in no better condition than his vendor.</p> <p>The restoration of slaves being decreed against a party who is, also, liable for their hire, in favor of one who owes for the purchase of them—the amount of hire is to be ascertained by a jury, or a commissioner, and, if it exceeds the debt, the surplus must be decreed to the party entitled to it; if it is less than the debt, the debtor is to have a day in court for the payment of the balance, upon which, the slaves are to decreed to him.</p>

<p>Trespass.</p> <p>From the Circuit Court for Greenup County.</p>

<p>The act of 1811. respecting ex'ors &c. (S. L. 672,) does not change the order of administering assets; nor the liabilty for mal-administration It merely enables an executor or adm’r, when sued for a devastavit, to show what am’t of assets he had administered legally, at the time of the original judgt. limiting the recovery to the am't then unadministred, and so relieving him from the consequences of a false plea of plene administravit, or of a failure to plead to the original action.</p> <p>A late act has changed the order of administration, but does not apply to cases that had arisien before its pas sage.</p> <p>An ex’or cannot, after he is sued by one specialty creditor, pay another, who has not sued, in preference to the former; such payment is a devastavit. Yet, the ex’or, after a suit by one specialty creditor, of which he has notice, may confess a judgt. in faver of another, and may legally satisfy the judgt. so confessed, first.</p> <p>According to the modern doctrine (tho’ anciently it was otherwise,) an ex’or who has paid a debt of the testator for which he was bound as the surety of the testator, may retain the amount, at least, as for a simple contract debt. But he has that right only when he has paid the debt, not in consequence of his mere liability for it. And he cannot gain an advantage over a specialty creditor who has bro’t suit, nor any right of retainer as against him, by afterwards paying a specialty debt for which he himself is the testator’s surety, any more than he could by paying or purchasing any other of the testator’s debts. But, as he cannot confess a judgt. to himself, he would seem to be entitled to a preference over other bond creditors who have not sued.</p> <p>The verdict and judgment.</p> <p>The declaration.</p>

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

<p>Trespass.</p> <p>From the Circuit Court for Jefferson County.</p>

<p>There is no implied undertaking on the part of any mechanic, that a machine, instrument, or other article that he constructs or makes for another, & according to his directions, shall answer the purpose for which it is intended.—If the mechanic does the work in a skilful, workmanlike and substantial manner, and according to the specifications of the contract, or the directions given him, he is entitled to a reasonable reward for his labor. The projector, or employer, who plans and directs the construction incurs the risk of its answering the purpose.</p>

<p>Where a widow is not satisfied with the provision made for her in her husband’s will, she may is renounce it (in a form prescribed by the statute,) at any time within a year from his death, and will then be entitled, under the statute, to one third of his slaves for life, and such part of his other personal estate, in absolute right, as she would have been entitled to if he had died intestate: i.e. if there be no children, a moiety, if there be a child or children, a third, of the surplus, 'after the funeral debts and just expenses paid.'—But where the husband has left a will in which there is no provision made for the widow, and there is, therefore, nothing for her to renounce, she may claim her distributive share without any renunciation:</p> <p>According to the literal import of the statutes of distribution, a widow would be entitled a share of her husband's estate, in two cases only—1st, where he dies intestate; 2. where she renounces the will; and to nothing where he leaves a will in which she is pre-termitted. But held, that such could not have been the intention of the Legislature, where a will makes no provision for the testator’ swidow, and that, in such, case—as to her an intestacy,she has the same right to a distributive share of his estate, as tho’ he had left no will, or one that she renounced.</p>

<p>Detinue.</p> <p>From the Circuit Court for Franklin County.</p>

<p>Where facts are alleged in an answer, sufficient to bar the relief ought in the bill; and the answer, tho’ not made a cross bill, requires the complainant to answer as to those facts—if he fails to do so, they must be taken as admitted, and the bill must be dismissed.</p>

<p>Debt.</p> <p>From the Circuit Court for Washington County.</p>

<p>The origin of the claims of the parties, respectively, to the property in controversy, with the history of a suit in Tennessee, onwhich this is founded.</p> <p>The bill, founded on the foregoing facts, to recover the slaves in controversy.</p> <p>Answers; exhibits, and further facts relied on by defts.</p> <p>Decree of Pulaski Circuit Court, find appeal.</p> <p>A purchase of property, made in this state, while there is a suit in which it is involved, pending in another State, must he treated as a pendente lite purchase—by virtue of the constitution of the U.S. and the act of Congress, which provide that full faith, credit and effect shall be given, in each state, to the public acts, records and judicial proceedings of every other state. So—</p> <p>Held that, where a suit to recover certain slaves, was instituted in a court in chancery in Tennessee, which had jurisdiction of the subject matter, & in which the parties were duly bro’t before the court, by personal service of its process, and a decree was finally obtained, binding upon the parties and their privies—that decree (if fairly obtained,) is equally binding and conclusive on a purchaser of some of the slaves, which had been brought over into Kentucky, and sold to him here, while the suit was pending in Tennessee.</p> <p>The levy of an ex’on on slaves while they are the subject of a suit in chancery, is irregular; a sale under the ex’on will not defeat the effect of the decree.</p> <p>A suit in ch. was instituted in Ten. in which, in due time, it was decided and decreed that the compts. were entitled to the interest in certain slaves for the recovery of which their bill was filed; a commissioner was appointed to ascertain the amount of hire, also to be recovered, the cost of raising certain young ones, &c.—whose report was subsequently made and confirmed; and a further order was made, directing him to take possession of, & divide, the slaves &c. Afterwards, an order of court was entered of record, stating that, it appeared by the statement of the parties, in open, court, that they had agreed, in writing, upon the mode and manner of dividing the property; which made any formal decree on the subject unnecessary; and that deft. pay the costs, &c.— Held that, tho’ the final division of the slaves (if they were divided) was made by the agreement of the parties, and not by the decree of the court: yet as the previous interlocutory decree settled their lights, and was never changed,it is conclusive on them and their privies; and, also, upon lis pendens purchasers who purchased the subject of the suit in Ken.—unless they have been injured by the fraud of their vendor in collusion with other parties to the compromise.</p> <p>Where property has been bro’t in to this state, from another State, while a suit was there pending up on the right to it, and which has been there determined, a court in any county here in which the property, or any part of it, & any proper deft. are found, may take jurisdiction to carry out and complete the object of the foreign suit; and may bring before it, all other necessary parties.</p> <p>Any tenant in common has a right to the possession of the property; and if others, having equal rights, are excluded, a bill in chy. for a division, is the appropriate remedy</p> <p>A decree of a c’t of competent jurisdiction in Ten. is entitled to the same effect here, that it wo’d have there: no more; and any objection that would, present the enforcement of a decree rendered here, will apply with like force and effect to one rendered in Tennes. which is sought to be enforced here.</p> <p>The claim or right to personal property in the adverse possession of another, is but a choose in action, and no sale or transfer of property in that condition, will pass the legal title to it; such a right can be enforced only in a court of eq. if at all. And tho’ in modern times, an assignment of a chose in action is viewed in equity, as the declaration of a trust, the assignee as the cestui que use, who is permitted to assert, in his own name, as assignee, any claim or demand, arising by contract, for money or property—query, whether a court of eq. would interpose in behalf of a purchaser of property which, at the time of the purchase, was held adversely to the vendor.</p> <p>If such a claim, may be enforced where, as in this case, the purchase was made after the vendor’s right had been established by a judicial decision, and he, being a party, makes no objection—still,’ if the claim of the purchaser was tainted in its origin, with fraud, inquity or champerty, he cannot have the aid of a chancellor to enforce it. So—</p> <p>Where a suit was instituted in Ten. and the slaves which were the subject of the controversy, were removed to this State, by one of the parties, pending the controversy, and were afterwards sold to a purchaser here, who instituted a suit, to carry out and enforce the decision and decree obtained in Tennessee, and, by proof of numerous facts and circumstances, it was made evident, that the Tennessee suit was commenced under a champertous agreement with the purchaser here and another, and carried on by their maintenance; that they themselves were the principal witnesses, and that the decree could not have been obtained without their testimony—the truth of which was very questionable—held that, the chancellor should neither aid nor countenance the complainant or his claim, but should dismiss the bill.</p>

<p>The title of the lessors; possession &c.</p> <p>A conveyance of land pending an eject. for it, does not affect the right of recovery. A stipulation in a deed, by which one of several heirs conveys his interest in land, that the grantee shall have the benefit of all suits pending for the recovery of the land—which is not a contract to carry on a suit for part of the land, nor to have part of the land for carrying on the suit—is not a contract in violation of the section of the champerty act of 1824.</p> <p>A deed void by the champerty act of ’24, leaves the title still in the grantor, and is no obstacle in the progress of a suit, previously commenced.</p> <p>The champerty act of 1824 does not extend to a case in which, neither the commencement, prosecution nor result of the suit, can be, traced to the sale or deed impeached as violating the act.</p> <p>A deed made to carry into effect an executory contract for land, made while the vendor was in peaceable possession, is not void, tho’ there may have been an adverse possession when the deed was made. And where the evidence conduced to prove that state of case, instructions hypothecated upon the deed only, without reference to the executory contract, were properly refused.</p> <p>Plaintiff in eject. may recover upon a former possession of 20 yrs. And one tenant in common may recover against another, on proof that he holds and claims the whole adversely.</p> <p>Where it is proved that, a party claiming a tract of land, is in possesssion of some part of it, the presumption is that his possession includes the whole—if there is no proof of any other possession.</p>

<p>A purchaser of slaves, upon receiving them with a bill of sale, gives the seller a writing stipulating that, if he refund to the purchaser, so much money, by such a time, the slaves and bill of sale shall be surrendered to him: this is a mortgage; & to make it valid against creditors the two writings must be lodged for record within 60 days. [By an act in force since Aug. 1, '39, a mortgage does not take effect till it is actually lodged with the proper clerk to be recorded.] The delivery of the slaves to the mortgagee does not change the character of the transaction; it is still a mortgage; not a pawn or pledge; and unless the writings are duly lodged for record, the slaves, in the possession of the mortgagee, will be subject to executions against the mortgagor.</p> <p>The difference between a mortgage—which must be recorded to make it valid against creditors & purchasers; and a pawnor pledge; to which the statute requiring mortgages and deeds of trust to be recorded, does not extend.</p>

<p>Ejectment.</p> <p>From the Circuit Court for Madison County.</p>

<p>Chancery.</p> <p>From the Louisville Chancery Court.</p>

<p>Though a party from whom land is recovered, is not equitably entitled to be reimbursed the value of improvements made by him after the suit was commenced—as, in legal contemplation, such are not made bona fide: yet, so far as, by the expenditure, pendente lite, in good faith in fact, of his labor and money, he has enhanced the value of the land to the successful claimant, he is entitled to compensation.</p> <p>Where a compt. in chancery, succeeding in a suit for land, is entitled to rents and profits, the amount is not only subject to all equitable deductions, but may be restricted by the statute of limitations, to what accrued subsequent to a date five years before the commencement of the suit. But, if the occupant claims compensation for improvements and ameliorations, his claim may be considered as having been extinguished, in whole or in part, by the rents and profits that had accrued before they were made, or even as having been paid in advance, by rents and profits that had accrued before they were made. And if the rents and profits which had accrued up to a period five years before the commencement of the suit, are equal in amount, to all the improvements and ameliorations up to the time of taking the account, the occupant is entitled to no deduction from the rents and profits for which he is liable; and the successful claimant may, in that case, recover all that accrued within five years previous to the suit and afterwards up to the time of taking the account; but if the rents and profits prior to that date, do not cover the whole amount of improvements and ameliorations, the difference must be taken out of those accrued subsequently, and the successful claimant may have a decree for the balance, if any.</p>

<p>Facts of the case.</p> <p>The declaration as to which vide post.</p> <p>Instructions, &c.</p> <p>The responsibilities of the proprietors of a toll bridge, are not the same as those of common carriers. The latter, having the custody, care and control of the goods they carry, have peculiar oppurtunities for combinations and collusions with robbers, thieves, &c. & are, therefore, held to a resposible so high, that nothing but an act of God, or the enemies of the country, will excuse them from liability for the loss of, or injury to, the goods.—The persons and property passing a bridge are not subject to the control, nor under the care of, the proprietors of the bridge, and are not exposed to all the dangers to which goods in the hands of common carriers are liable. The proprietors, therefore, are not liable to the same extent. But they are bound to use at least ordinary care & diligence in the construction of the bridge and in keeping it in proper order; and, for any injury which may result from their negligence in this respect, they are liable in damages And query, whether they are not bound to the utmost care & vigilance, and liable for even slight negligence.</p> <p>The mere opinion and belief of the proprietors of a toll bridge, that it is safe, will not excuse them from liability for injuries arising from its defects: they are bound to ascertain its condition with reasonable certainty, not trusting to the opinions of interested or incompetent persons; they should avail themselves of the judgment of such as are disinterested, skilful and experienced ced in such matters.</p> <p>The declaration ante: held, that all the counts are in tort, no one in assumpsit, & no misjoinder.</p> <p>Counts in case, for a loss by the falling of a bridge which merely allege its insufficiency, without charging negligence on the part of the defts. are not sufficient.</p> <p>A count charging the defendants as common carriers might do, if it also, charges that the injury was the result of their negligence.</p> <p>A verdict—rendered under proper instructions—must be sustained, if there is any good count in the declaration, tho’ there are other counts not good, and to which, demurrers were erroneously overruled.</p> <p>Facts held sufficient to sustain a verdict upon a count charging negligence in the construction of a bridge.</p>

<p>Where, in a suit to settle a partnership, it appears that the debts are paid, and no effects left—all that can be done is, to ascertain the state of each partner’s account with the firm, and effect a fair settlement, by decrees for or against each, separately and personally.</p> <p>A partner who has furnished hands to labor for the firm, has no right to charge the whole value of their services to his copartners: the proper way is for him to charge it to the firm, which will make his own interest, as well as that of each other partner, contribute its due share.</p> <p>Advances made by one partner, for services rendered the firm, are chargeable to those who composed the firm when the services were rendered; one who had previously sold out and retired, is not liable for any part of them.</p> <p>Where, upon closing a partnership, in chancery, the effects consist merely of bad and doubtful debts, and their proceeds in the hands of collectors; the proceeds, if any, should be applied to the debts of the firm if any; then, towards the balance due a creditor partner, & finally, the residue good and bad, should be divided among the partners, according to their interests.</p> <p>The object of a partnership was to build mills, and carry on the business of sawing, grinding &c. by steam; and one of the partners, whose interest was a fourth, furnished the land upon which the mills were erected, as part of his share of the capital. After a time he sold out to new partners, who took his place in the firm—reserving a lien upon the legal title to the land, to secure him for the price, and for any payments which he might have to make on account of the firm: held that, this lien was subordinate to that which another partner had the same interest, for a balance due to him from the retiring partner, on the partnership accounts; and the share sold should be subjected to the payment of such balance, before a resort should be had to the retired partner personally.</p> <p>If two of three partners make over their interests to strangers, and an ex'on against them and their partner is levied on the remaining interest as the property of the latter, and it is sold and purchased, directly or indirectly, by one of the others, the purchase will inure to the benefit of all three, and merely entitle the purchaser to a credit with, the firm, for the amount of the purchase. And, if he could hold it, to his separate use, he could not demand any contribution upon it, from the late owner. And, if the purchase was by a stranger, the late owner would be entitled to a credit with the firm, for the amount of its debt paid by the sale. But—</p> <p>The true effect, it seems, of selling the interest of 1 partner, under an an ex’on against the firm, would be to invest the purchaser, not with that specific share, but with an interest in the whole stock, equal to the share of the partner whose interest was sold; leaving him, and the others interested in the residue, in the same proportions that they had in the whole, before the sale.</p> <p>Where the property of a partnership consisted of mills, built on land that one of the firm had contributed as part of his share of the capital, but no part of which he had conveyed to the others, and he sold out, reserving a lien on, the land for the price &c. and upon a settlement of the partnership, he was found indebted to another partner, who had of course, a lien on the share sold—as that share should have been subjected to that balance first, and then under the lien which the vendor reserved, it was erroneous, to decree that he sho’d convey the land to the firm, for the benefit or purchasers, and thereby defeat his own lien.</p> <p>Where the allegations of a cross bill are inconsistent with the admissions of the answer, they can not be taken as true, tho’ unanswered.</p>

<p>Pet. & Sum.</p> <p>From the Circuit Court for Fayette County.</p>

<p>From the Circuit Court for Woodford County.</p>

<p>To a suit in chancery by which the goods of nonresidents in the hands of a garnishee in this state, were attached, one of the nonresident defts. appeared and pleaded, in abatement, that a prior suit was instituted in Indiana, in which the same pltffs. had sued the same defts. and held them to bail there in assumpsit, upon the very same cause of action, which action was still pending &c. held that, the facts pleaded are not sufficient to abate the suit here.</p> <p>The common law rule in that respect, is not changed, nor is a plea in abatement, in one state, of a prior suit for the same cause, pending in another, made available, by that provision of the constitution of the U. S. which requires, that full faith and credit shall be given, in each state, to the judicial proceeding of other state, or by the act Congress, prescribing the mode of their authentication.</p>

<p>Ejectment.</p> <p>From the Circuit Court for Anderson County.</p>

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

<p>The Will.</p> <p>Rejection of the will in the county court; & question here-whether the testator was of disposing mind.</p> <p>The evidence in this Court.</p> <p>Suggestion, that the proof of insanity-even without the countervailing evidence afforded by the will itself, the memo, of acc’ts &c. would not justify a decision against the validity of the will.</p> <p>Religious impressions and apprehensions, producting extreme anxiety, even hopeless despair, caused by a conviction that the sufferer had 'passed his day of grace.' and so overwhelming as to render him unconcerned and listless on all other subjects-may exist consistently with unimpaired reason; and, of course, cannot justify the conclusion that, one affected, was incapable of making a rational and valid will. And if, when his attention can be diverted to other things, he is altogether rational & sensible as to them, it tends strongly to the conclusion that his mind is not unsound.</p> <p>That a will was altogether written—and written well, by the testator himself— making such disposition of his property, & such only, as is consistent with the affections, duties objects and principles, which he has always avow ed and professed when his sanity was unquestioned and unquestionable—is the best evidence that he was possessed of a disposing mind when he wrote it.</p> <p>A memo. of facts and suggestions concerning the testator’s unsettled business, made out by him, for the ex’ors, after he had made his will, proving substantially correct, in all its numerous particulars,strengthens the conclusion resulting from the intrinsic propriety of the will itself.</p> <p>A testator, having made a will by which he devised the principal part of his estate to his wife and children, and directed that his slaves should be emancipated—added a codicil, a day or two afterwards, in which he says ‘my heirs shall not be entitled to the provision made for them, unless they shall go security to court for said negroes’ good behavior’: Held that the testator sho’d he understood as meaning, by the term heirs’ those to whom he had devised his estate; and, so understood, the codicil is not so absurd as clearly to indicate unsoundness of mind.</p> <p>A testator, having made a will by which he emancipated all his slaves, afterwards made out a mem’o. which he delivered to one of his ex’rs, in which, among other things, he says: — “Henny ought to he set free:” tho’ Henny was a slave in his possession, as he was not the sole owner of her, and she wo’d therefore, not be free by the will, the memo, is no indication of insanity.</p> <p>When a lunatic writes his own will, in his natural manner, and the provisions of it are altogether sensible, proper and judicious, the will itself proves that, when he wrote it, he had a lucid interval.</p> <p>Considerations upon the clause of George Weir’s will by which his slaves are emancipated; his opinions and views, as expressed, at various times, on the subject of slavery and emancipation, and upon his peculiar condition at the time when he wrote and published his will; and conclusion, upon all the facts and circumstances proved, that the Court is not authorized to decide, that the emancipation,— by a will written, wholly by him— and in all other respects (if not in that,) perfectly proper and discreet, is attributable to monomania, or any insane delusion, produced by the very extraordinary roligious excitement he was laboring under, at the time the will was made.</p> <p>Short summary of the reasons for deciding that the testator in this case, was not incompetent, but was of a sound and disposing mind, when the will was made.</p>

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

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

<p>Ejectment.</p> <p>From the Circuit Court for Fayette County.</p>

<p>Statement of the case</p> <p>The possession or right of possession, acquired by a purchaser of personal property sold under ex'on, will enable him to assert a legal remedy against one who converts it, by another sale under a subsequent ex’on; and a court of eq. will not en join such sale But-</p> <p>The purchaser of an equity of redemption in personality may maintain a bill to have the equity of redemption adjusted, and may obtain an injunction to prevent a sale of the property in the meantime. And—</p> <p>Children having a residuary interest in slaves &c. under a deed of trust-a right purely equitable, may maintain a bill eq. to perfect their right.</p> <p>The grounds on which it is contended that M. one of the cestui que trusts became absolute owner, so that the trust property, was subject to an ex'on against him.</p> <p>Qu. whether the power, in this case, is general i. e., an authority to the done to appoint to whom soever he may choose; or particular, i.e., a right restricted to certain objects designated in the grant itself. If the conveyance was not a settlement, but only articles for a settlement, the power was not general. For-</p> <p>Marriage articles are always understood in equity, as being ultimately for the benefit of children, when there is nothing to indecate the contrary</p> <p>It seems to be settled in England, that a general power of appointment given to a donee who had an individual right to the property, does in effect entitle the donee to absolute ownership. But if the grant designates who shall take the property in default of appointment, the creditors of the donee cannot claim it as his, until he has in some way assumed the right of disposing of it; and that a voluntary execution of the power by the donee—which implies ownership, is generally deemed a fraud on his creditors. And this doctrine has been virtually recognized by the Legislature of this state.</p> <p>Where property is conveyed in trust for the use of husband & wife during their joint lives, then to the survivor for life with a power of appointment given to the survivor-it seems that an appointment by a joint deed of the husband and wife, would not be a valid execution of the the power, especially if the wife survived the husband, though possibly it might if the husband survived.</p> <p>Where, in such case, the property was to go to the children of the first beneficiaries, in default of appointment, and they under took to exercise the power by their joint deed, by which they directed that the property should be conveyed to their children, (who would have been entitled if the power had not been exercised:) held that this attempt to exercise the power did not manifest an assumed ownership, or intention on the part of the husband to exercise dominion over the property, and the deed cannot be deemed a voluntary conveyance in fraud of his creditors: the property not subject to an ex'on against him.</p> <p>Husband & wife, for whose use during the lives of both and of the survivor,the wife had conveyed property in trust, were allowed, by the terms of the deed, to use the property without accountability, tho’ their children wo’d be entitled to it, by the deed, if a power of appointment reserved to the survivor, wa snot exercised. The husband and wife received a large portion of the estate in money, which they used and consumed; and tho’ this was no exercise of the power of appointment; yet, as the children could not recover the property so consumed, their claim to it could not be considered as a valuable consideration for a conveyance made by the husband, to them, or for their benefit.</p> <p>Recital of facts held sufficient to show that a voluntary deed (supra) was made to defeat creditors, & the property conveyed therefore subject to an ex’on against the grantor.</p>

<p>Facts of the case.</p> <p>The bill.</p> <p> Answer. </p> <p>Bill dismissed & appeal.</p> <p>A party who, in making a contract, gives credit and obtains security, is bound to communicate the terms of the contract fully, to the sureties: if any stipulation by which their risk may be increased, is concealed from them they will not be bound. And—</p> <p>Where there is a sale on credit, the purchaser giving security, any binding agreement between the seller and purchaser, by which the latter is to have a longer time to pay in, than is expressed in the contract signed by the sureties — if concealed from them will exonerate them. But the secret agreement to have that effect, must be such as the debtor has a right in good conscience encouragement to enforce. Mere encouragement held out to the dector, inducing him to hope for; or expect, indulgence will not exonorate the sureties. So-</p> <p>Where in answer to a letter which some of the sureties wrote to a creditor, stating that they had forgotten the amount of the debt, and the different payments &c. and asking for a copy of ‘the article’ — he replied, it -was a plain note, for so much, dated March 1, 1836, due in one year, hut that he had ‘consented to wait till March, 1838 and 9; and, in answer to their bill, charging a concealment, or novation, by which they were entitled to be discharged — denied that he had made any agreement whatever with the principal debtor, .or had ever relinquished, or postponed, His right to exact payment, or sue, and alleging that he merely told the debtor ho might not want the money &c. and that the consent referred, to in his letter, was merely a resolution of his own mind, not founded on any contract or agreement made with the debtor: held that the sureties were not exonerated.</p> <p>The terms of the letter (supra) indicate strongly, that it any agreement for an extension of time was granted to the principal, the sureties were apprised of it before they became bound; and if So, it would not entitle them to be discharged.</p>

<p>Statement of the case.</p> <p>A conveyance of slave and other personalty to a trustee, for the use of the grantor's wife for life with a power of appointment to her, and in default of an appointment,to her heirs: held (the point not contested,) that she took a life estate only, not the entire fee simple, in the use.</p> <p>The consideration recited in deed of trust (supra,) is, that the husband (grantor) had agreed to make provision for the wife, who had brought him property upon the marriage; love & affection for her, and one dollar paid by the trustee: held, that marriage &c. was a good and sufficient consideration to uphold the conveyancien favor of the wife; and the consideration of one dol. paid by the trustee, is sufficient to vest the entire legal estate in him, and support the uses to the wife's appointess: the power is, therefore, valid.</p> <p>The wife-having a life estate in the property (under the deed of the husband) and a general power of appointment- might, in conjunction with the husband & the trustee, by the deed in proper form and duly executed, dispose of the whole or any part of the absulutely. And- The trustee having disposed of part of the trust property, & purchased other property with the proceeds, it was competent for the same parties to dispose of the property thus acquired, by the same deed.</p> <p>A conveyance by the husband and wife and the trustee (ut supra) of the same property, on precisely the same trust and to the same uses, as those specified in the conveyance to the first trustee, would only have the effect of changing the trustee, and the power would remain as before. And, if the new conveyance included other property also, it would be subject to the same &c. But-</p> <p>A conveyance (ut supra,) for the use of the the wife for life, and to the use of the husband for life, if he survives her, &c. (a use not specified in the first deed,) was, so far, an execution of the power given to the wife; and-no power of revocation being reserved-any subsequent appointment by her, so far as it inteferes with that, thus made to the husband, would be void.</p> <p>A general power may be executed by different acts, at differernt times. And where there was a partial execution of the power (by the deed of the deed of the hus band and wife and trustee, supra,) and a subsequent execution of it, attempted by the wile by her last will, which does not make the same provision for the husband — held that the latter execution of the power is void, so far, and so far only, as it is in conflict with the former — as the excess can be clearly ascertained; though, if it could not be, the whole (of the last execution) might be deemed void. And the will, by virtue of the power of appointment given by the husband’s deed, passed that portion of the personal property embraced in the trust, which had not been previously disposed of; but the life estate given to the husband by the deed, being so far a valid execution Of the power of appointment, was, to that extent, a previous disposition of the personal property embraced by it, andwhioh is not, andeauls not be, revoked ortakenaway by the Will.</p> <p>An estate cannot pass by an appointment under a power, unless it could have passed by the deed or instrument creating the power: the appointment operates as if it had been inserted in the original deed. So—</p> <p>In this case, where a husband had conveyed slaves and other personal property in trust, for the use of his wife for life,then to such uses as she should appoint by will or deed in writing, and in default of such appointment, to herh’rs; and the trustee disposed of apart of the property and its profits and, with the proceeds, purchased land which was conveyed to the life in fee; and the afterwards executed a deed (but which she did not acknowledge upon privy examination,) in. Which her husband and the trustee joined,as grantors, & which recognized and sanctioned the disposition of the personal property by which the land was purchased; and which purports to convey the land to a trustee far the use of herself for life, and her husband for life, if he survived her &c. and afterwards made a will, by which she devised the land to the others directly, without regard to the use provided for the husband: held that, as the deed recited and sanctioned the purchased land with a part of the trust property, it is evidence of a valid execution of the power reserved to the wife thus far; as the was convey ed to her by deed in fee, and she could not, during the coverture convey the land, or raise any new power or use upon it, otherwise than by deed duly executed and upon privy examination-the deed so far as it relates to the land, is invalid; and, as a feme covert in this State, cannot devise land by will, unless under a power reserved, the land did not pass by the will, but decended to the heirs of the feme.</p> <p>The trust estate is liable to the debts contracte d for the wife, during her life, in pursuance of the trust,</p>

<p>Statement of the case.</p> <p>Construction of the 11 sec. of the act to incorporate the city of Lexington,—by which power is given to the mayor and councilmen to have the streets and alleys paved or turnpiked ‘at the costand expense of the Iot-owners fronting such streets or alleys’—the cost and expense of improving that portion of a street upon which a lot fronts, cannot be assessed exclusively upon that particular lot.—The expenses are to be defrayed by squares. When any street or alley is to be improved, the cost within a square, is to be assessed upon the owners of all the lots with in that square, fronting on the street or alley to be improved—on each, in an equal ratio—not according to the value of the lots, but according to their extent upon the street or alley. And,if more than at that ratio, be assessed on the owner of any lot—as where half the cost of grading and paving a street against a lot, being much, more than the average for the square, was assessed upon the owner of it—a court of eq. may enjoin the collection of the assessment.</p> <p>The authority of the Legislature to establish municipal corporations, and to delegate local powers to them, is not denied or doubted; but no greater power can be delegated, than might be exercised by the Legislature itself.</p> <p>The legislative authority over this subject, tho’ extensive, is not altogether arbitrary, but is subject to certain limitations & restrictions among the most conspicuous of which, are the constitutional provisions which guaranty equality, as far as it is attainable, & the security of property from irresponsible power, and which require that taxation shall be general and uniform. There may be discrimination in the subjects of taxation; but there must be uniformity in the tax, upon the selected subjects; no individual’s property can be subjected to a heavier tax than others are required to pay on property of the same description, and no one can be exempt, but in consideration of public services. The imposition of a public burden in which these principles are departed from, is not properly the levying of a tax, but the taking of private property for public use, contrary to an express provision of the constitution.</p> <p>The state is divided into subordinate communities or quasi corporations, as counties, cities, towns—each of which, to a prescribed extent, may regulate its own internal affairs; subject, however, especially in the exercise of the power of taxation, & the right of taking private property for public uses, to the same restrictions as the general legislature.</p> <p>The streets &c. in a town or city (Lexington,) are common highways, which all the citizens have an equal right to use, and which it is their common duty, as a local public, to render useful and to preserve; and, if the Legislature cannot (as they Clearly cannot,) impose upon any one citizen the whole burden of Constructing a public road—neither can any municipality exact the cost of opening or repairing a street, from any particular citizen: each and everyone, neither case, must contribute his proper share. If the improvements were substantially the same, in the course of a fiscal year, thro’out the city, each citizen might, perhaps, be assessed with the expense of those in front of his lot; as a slight and unavoidable in equalty in the levying of a public burden would not render it unconstitutional. But such an assessment upon an individual can not be justified by the remote, contingent, uncertain, possibility, that a similar burden, for a similar purpose, will eventually, and in process of time, be imposed upon every other citizen.</p> <p>The charter bf the city of Lexington (§11) may be understood as constituting each, square of the city, a separate municipality, having authority to regulate the streets and side walks within it; and as such, the owners of the larger portion of the ground within a square may (by petition) require that the streets within it, shall be improved at the cost of the owners of the lots — each one contributing his dueproportion according to the extent of his ground upon the street. And—</p> <p>Tho’ the holders of the property within a square cannot be compelled to pay for work done upon one of its streets, without the sanction of their representatives, (when they have not petitioned;) yet, as they are represented in the city counsel, and the charter requires (§11) a unanimous vote, to grade and pave a street, in any square, at the cost of the citizens thereof, when they have not petitioned for it — an order made for such purpose, may be considered as being made with the assent of the representatives of the square.</p> <p>The principle upon which the streets, &c. of Lexington may be improved by squares, at the cost of the owners of the lots within the square (under the 11th sec. of the charter,) is substantially the same as that by which the county courts require roads to be made and kept in repair, by the citizens of the county; and which has been long practiced upon, without question as to its constitutionality; and which is similar to what is practiced upon, and has been held to be constitutional, in other states, and which this court is not prepared to decide unconstitutional.</p>

<p>CHANCERY.</p> <p>FROM the Circuit Court for Garrard County. ;</p>

<p>Statement of the case.</p> <p>The partnership was dissolved in 1826 or 1827.</p> <p>The profits of the business during the continuance of the partnership, assumed by the Chancellor to be $24,000, did not, in the opinion of this court, upon the facts recited, exceed §5000.</p> <p>Opinion and decision, that the partnership accounts were finally and irrevocably settled by the parties themselves, in July, 1830.</p> <p>There is neither allegation nor proof, impeaching the settlement for fraud to mistake.</p> <p>No ground for charging Ferguson &c. with rent for the lumber yard, between the dissolution, and 1st Jan. 1832.</p> <p>Defts. pleading & relying upon a settlement, are estopped by the plea from opening the settlement.</p>

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