Volume 40 — Kentucky Reports

<p> Attachment. Disti'ess. Rent. County Court. </p> <p>Grounds of the attachment.</p> <p>Judg’t for plaintiff.</p> <p>Objections to the judgment.</p> <p>Attachment for rent before due, (where tenant is about to remove his effects,) lies only where distress lies after-wards.</p> <p>Distress or attachment for rent reserved in money.</p> <p>County Court, attachment for rents 0Ter 5 £'</p>

<p> School. Articles. Construction. Evidence. </p> <p>Statement of the e^ise.</p> <p>Decisions of the Circuit Court.</p> <p>Stipulation that the School Master will teach, at a place designated &c. is a condition,theperformanee whereof, or a tender thereof,hemustshow, andemploy’rmay disprove—</p> <p>In such ease, sohool having been taught, subscriber is bound whether he sent or not.</p> <p>Insehoolartieles signed by several employers — • either party, in. the stipulation “that either party can discontinue the school at the end of any quarter,” means the teacher, or a majority of the employers.</p> <p>In the above case one subscriber is not exonerated, nor his responsibility reduced by discontinuinghis scholar.</p>

<p> Construction. Evidence. Tender. </p> <p>Contract set out.</p> <p>Evidence on the trial.</p> <p>Contract at a'fixsd price for “all the hogs a neighbor farmer may have for market next fall, about 100 in number, more or less, to bedeliv’dthen,” ■will embrace only the hogs fatted by the vendor, & nothogs fattedby ■others, and purchased by him, of a drover.</p> <p>Circumstances not apparent in the writing, may show the intention of the parties and effect the construction thereof. — Subsequent acts of the parties may have the same effect.</p> <p>Tender,</p>

<p>Motion, Case 4.</p> <p>Error to the Clinton Circuit.</p>

<p> Corporations. Averment. Judicial Notice. </p> <p>Courts here know the Statutes establishing private corporations.</p> <p>Power of Corporations to deal on credit; and how bind themselves.</p> <p>Averment that the Corporation by its Treasurer did bind themselves, is sufficient.</p> <p>Corporations may bind themselves by unsealed instruments exeeutedby their agents.</p> <p>Objections to petitions.</p> <p>Gourtsmayknow by the name of plaintiffs that they are extraterritorial, and are incorporations, and will thereon sustain their actions.</p> <p>Statement in the Petition “that plain tiffholds the note of defendant,” a corporation, which set out, imports a promise, and is found signed “J. W. T., Treasurer” is an avermenithatit made the note.</p> <p>What demurrer admits.</p>

<p>Error to the Edmondson Circuit.</p> <p>Ejectment. Case 6.</p>

<p>Trespass. Case 7.</p> <p>Error to ti-ie Mason Circuit.</p>

<p> Boundary. Survey. Courses and Distances. </p> <p>Natural objects boundary oV*^ survey, being permanent, concourses and disseneeVfnrnarhed boundary.</p> <p>A call to bind on -althoughcourfes caHe1iStforeand proof that the lines on the river were not mar bed conc'hmiveljnhat dnuosit°ielUwa3 the line adopted ■by the surveyor, •and governs.</p>

<p> Writs of Error. Limitation. Parlies. </p> <p>Li m Ration pleaded to W. E.</p> <p>Parol and extrinsic evidence may be adduced to prove the loss of a writ of error issued from this court. — The oath of the clerk ard this endorsement on the record ‘1W. E. issued in May, 1839,” sufficient to supply the lost writ.</p> <p>To a bill for distribution, all the distributees are necessary parties.</p>

<p>Injunction Bond, Construction.</p> <p>The condition of the injunction: bond being “to pay all costs and damages that might be awarded,’does not bind obligors for any part of the judgment enjoined, it embraces only the costs and damages awarded in the suit in chancery.</p>

<p> Equity Jurisdiction.- Lex-loci contractus.- Authentication. Interest.- </p> <p>The case stated.</p> <p>Decree of the Circuit Court.</p> <p>Surety in a warranty, in a bill of sale of a slave, may sue his principal in Chancery, after being made responsible on the warranty.</p> <p>A transcript of a record f a suit of a sister state, on a warranty in a bill of sale of slave, against a surety therein where principal</p> <p>A surety sued in a sister state, on •warranty of a slavetheremade, may recover against his principal in this state, who had notice •of the pendency of such suit, whatever may be legally adjudged against him hy the laws of the sister state. The law of the place where a personal contract is to be performed, determines its validity and the extent of its obligation— the lex loci contractus governs in such cases.</p> <p>Record of a sister state, certified to be aperfect record of the suit, held sufficient.</p> <p>Where there is no proof of a prescribed rate of interest for money due in a sister state, six per cent, is to be allowed, (seestatute of 1837, page 28.)</p>

<p> Appeal. Discovery. Parties in appeal from Justices. </p> <p>Case submitted to the Judge.</p> <p>By the act of 1809, Stat. Law, 891, the same power is conferred on justices of the peace that was before exercised by els. of chancery, in compelling discovery, and no more'.</p> <p>The chancellor oannot compel a diselosurewhieh would criminate the party or subject him to a penalty, lior can a justice.</p> <p>By the statute of 1828, that of 1809 is made to apply to trial in appeals before the circuit court. The circ’t court, on trials of appeals, have no right to compel a parly to disclose that which would criminate him or subject him to a penalty. If a party, on the trial of an appeal in the circuit court, refuse to attend when summoned, or being in court, refuse to answer interrogatories, judgmentmay be entered against him for his iailure.</p>

<p> Adversary possession. Tenancy. Vendor and vendee. Error. Evidence. </p> <p>Plaintiff’s title.</p> <p>Facts relied oía in the defence.</p> <p>Verdict and judgment tor defendant and motion for new trial overruled.</p> <p>Whentheverdiet was necessarily for defendant, on the facts, the jury were bound, it cannot be disturbed for any error of the court in giving or refusing instructions.</p> <p>How possession originallyreceived and held as quasi tenant may afterwards become adverse.</p> <p>it is the duty of vendee of land, not adversely occupied, to take and hold the possession, and after the lapse of seven years, in which its occupancy would insure its safety, a pledge of other land, given him in possession as security against its loss, is discharged.—</p> <p>In such case, the possession ofone who had in the mean time purchased the absolute estate of the pledgee in possession, & holding his absolute •deed, and notoriously occupied and claimed the land as his own, ■was adverse to thepledgor, from .the discharge of the pledge.</p> <p>Def’t. in ejectment in a former action between thesame parties, for the same land,having moved the court, on the plaintiff’s evidence, to instruct thejury to find for the defendant,because there was no notice to quit, is not evidence that defendant was plaintiff’s tenant.</p> <p>Not error that the court rejected competent evidence of a pertinent fact, when in its absence anotheroccurredof the same effect in malting out the adversary’s case.</p>

<p>Covenant, Case 14.</p> <p>Error to the Garrard Circuit.</p>

<p>Widow cp Heirs. Joint action. Work beast, Assets. Tenants in common.</p> <p>Sale by the wiil- , ow^ of the only 'work beast left by deceased husband, tho’ made in ignorance of the rights of herselfandehildren, is not void, but passes her interest, and -whilst annulled by an offer to cancel & restore the consideration, is a bar to a joint action of herself and children.</p>

<p>Chancery. Case 16.</p> <p>Error to the Garrard Circuit.</p>

<p> Equitable jurisdiction of justices of the peace. </p> <p>The statute of 1838, Ses. Acts, 165, conferring chancery jurisdiction on justices of the peace, applies as well to judgments against ex’rs. or adm’rs. as other persons.</p> <p>The statute of 1839, Ses. Acts, 295, to regulate the administration of estates, does not affect the equitable remedy given by the act of 1838, unless a bill be filed by the fiduciary or some creditor.</p> <p>Judgment creditor, after a return of nulla tona on fi. fa. vs adm’s. may proceed vs debtors of the adm’r. for debts due for phattels purchased -which were the intestates.</p>

<p> Wills, cancellation of. Re-publication of wills. </p> <p>*rh.e case stated.</p> <p>The cancellation or cutting off a portion of the devises in a -will, leaving the testators signature at the conclusion, or in the body, when no othersigning had been intended, with a declaration that the intention was to annul only what was so cancel-led; the rusidue is not effected; but remains a valid will.</p> <p>when in such turéis out offnor never^had been te-totor hnmedi6 ately on the partíon, endorses^? writes his name, be done) on any per^withthehiingttatwhat'rel mained was his will, it is so, and effectual under pass Tands6 and slaves.</p>

<p> Administrator de bonis non. Sheriff and his sureties. Trustees. Jurisdiction. </p> <p>Sheriff charged, with a special administration is a fiduciary, and subject like an ordinary administrator in a court of equity, to the suits of creditors, legatees & distributees. The jurisdiction of the county eour-t is only concurrent.</p> <p>Sheriff’s sureties in his official bond are responsible for Mm as special adm’r. and for interest on assets used by sheriff as special adm’r. Promissory notes given to adm’r. as such, belong either to him & his adm’r. or to .adm’r. de lonis non of first intestate, and so either may sue upon them according to circumstances.</p> <p>Sheriff charged as special adm’r of one who had been administrator of an administratrix, and as adm’r de bonis non, succeeded her as adm’r of another intestate, is chargeable with the amount received by him in notes given to the administratrix as such of the first intestate, and together with his sureties is liable to the distributees of two first intestates.</p>

<p>Warranty. Fraud. Caveat emptor.</p> <p>There is no implied warranty in a fair sale of a Durham cow, that she will breed, tho’ purchased for that purpose, and at a price justified by no other object—</p> <p>The maxim cave- ■ atanptor, applies in such a case.</p>

<p>Pet. & Sum. Case 21.</p> <p>Error to the Barren Circuit.</p>

<p> Sheriff. Sheriff’s return. Evidence. </p> <p>'Case stated.</p> <p>Sheriff’s return whilst in office, in general, conclusive, and cannot he collaterally questioned, —And he may amendhisreturn, if done whilst in office, with like effect.</p> <p>The right of a sheriff to amend his return on execution when out of office, arises from alevy thereof whilst in office, which must appear, • — Return is not then conclusive, it may be impeached by extrinsic evidence.</p>

<p> Case 23. </p> <p>Error to the Washington County Court.</p>

<p> Capias. Recognizance. Criminal proceedings. Scire facias. </p> <p>The ease stated.</p> <p>Motion to quash recognizance, demurrer to sci. fa. andjudgment of the Court thereon overruling each.</p> <p>The statute does not authorize or require the Court to fix the return day of- capias in criminal cases, except ¡tissue in term time.</p> <p>Tho’ the statute requires the capias in criminal cases, to be made returnable to the first day of the term, and that the def’t. be recognized to appear on that day. Yet if the recognizance be taken for appearance on a different day, itwillnotbe void; but it cannot be estreated until the day fixed | therein, for appearance..</p> <p>By the 4th sec. of the statute of 1836-7, prosecutions requiring jury trial, stand for trial on the secondda^ofthe term, which tañen in connection with former acts on the same subject, shows a Legislative intention to allow recognizances to be taken for appearance of deft; on that day.</p> <p>Heeognizances since the statute of 1836-7, ate properly taken for the appearance of clefts, on the 2d day of the term.</p> <p>Not necessary, that a sci. fa. on a recognizance 3n a criminal case should aver Specifically a return of the recognizance to the office, equivalent averments are sufficient.</p>

<p> .Attachment in Chancery. Attachment bond. Surety. </p> <p>Bond on attachment in chancery-</p> <p>The condition of the bond—</p> <p>One in whose favor goods are attached by order of the Chancellor, thereby acquires a lien which is not affected by the levy of a second attachment thereon, a sale thereof by consent of both attaching creditors,releases the surety in, first bond for delivery of attached effects.</p>

<p>Presentment Case 26.</p> <p>Error to the Hickman Circuit.</p>

<p> Bower, Parol contracts. Femes covert. Void and voidable contracts. </p> <p>The case stated,</p> <p>Decision of the Chancellor.</p> <p>A relinquishment of dower by s-feme covert, infant, is an act in pais, and may be avoided on arrival at full age.</p> <p>Theaeinowledgment of/ernes covert is entitled to no higher consideration than if made by a feme sole.</p> <p>Widow is not entitled to dower in lands of which the husband was not beneficially seized during the e o vertur e — If there be a Bale by a parol executory contract of sale of land, by husband during infancy & before marriage, falter marriage, at full age, such sale be confirmed by a conveyance, the widow is not entitled to dower.</p> <p>Parol executory contracts forland are not void, but voidable only.</p> <p>widow cannot |outmyPcontract jy infancy, where of full age during ^^[bYcónUact and execute a suchX^ofconbyyathe\usband afte^ marriage, confirmatory of the parol contract of sale made before marriage and during infancy willhave relation back to the date of the executory agreement, and overreach the initiate right of the wife to dower.</p>

<p>Case. Case 28.</p> <p>Error to the Shelby Circuit.</p>

<p> Consideration. ■ Feme Covert. Bill taken pro confesso. </p> <p>The ease stated,</p> <p>Decree of Chancellor.</p> <p>The restoration of pacific and friendlyrelations between father, daughter and her husband, & son-in-law’s relinquishment of a claim to a slave, is, prima facie at least, a valuable and most meritorious consideration.</p> <p>The failure of feme covert to answer, will not authorize a decreeeffeetingthe interest of husband in land, which is subject to his legal estate for life.</p>

<p>Chancery. Case 30.</p> <p>Appeal from the Shelby Circuit.</p>

<p>Chancery. Case 30.</p> <p>Appeal peom the Louisville Chancery Court.</p>

<p>Ejectment. Case 32.</p> <p>Appeal prom the Madison Circuit.</p>

<p>Trespass. Case 33.</p> <p>Error to the Montgomery Circuit.</p>

<p>‘Chancery. Case 34.;</p> <p>Appeal from the Louisville Chancery Court.</p>

<p> Judgment. Power of attorney¿ Joint action. </p> <p>Warrantof attorney, to confess judgment before suit brought, is void.-</p> <p>Error in a joint action against 3, to enter judgment against 2, without finally disposing of the suit as to the oiher defendants.</p> <p>Warrantof attorney by 2 of 3 who-are jointly liable and sued jointly, cannot be construed to be a warrant to confess judgment, without judgment is also rendered againsttke third def’t. or otherwise regularly disposing of the suit as to him.</p>

<p>Debt, Case 36,</p> <p>Error to the Bourbon Circuit.</p>

<p>Trespass. Case 37.</p> <p>Error to the Jessamine Circuit.</p>

<p> Scire facias. Jurisdiction. Mayor of Louisville. City Judge of Louisville. </p> <p>By the statute of 1838, the Mayor of Louisville had the same authority to recognize or commit criminals as two justices ofthepeace in the county.</p> <p>By the act of 1836, 3rd sec. the City Judge of Louisville has the same authority, in and out of court, to recognize criminals, as the Mayor or two justices of the peace.</p> <p>The 2ná section of theactofl821 is merely directory, and a recognizance taken before the committing justices is valid; though the circuit judge be in the county.</p>

<p>Chancery. Case 39.</p> <p>Appear from the Wayne Circuit.</p>

<p>Chancery. Case 40.</p> <p>Appeal from the Louisville Chancery Court.</p>

<p>' Debt. Case 41.</p> <p>Error to tiie Pulaski Circuit.</p>

<p>Assumpsit. Case 42.</p> <p>Error to the Bracken Circuit.</p>

<p>Chancery, Case 43.</p> <p>Error to the Louisville Chancery Court.</p>

<p> Emancipation. Damages. Parties. </p> <p>The case stated.</p> <p>Answers of defendants & proof in the cause.</p> <p>Decree of Chancellor.</p> <p>All persons concerned in suppressing a will, by which slaves are emancipated, and in consequence of which they are held in servitude, are liable jointly, to adecree for damages, equal to the value of their services whilst unjustly held in servitude — that one of such persons was a nonresident, no objection to a decree against him in personam.</p> <p>If one of several persons who have been concerned in suppressing a will, by which suppression persons of color are held rn servitude, dies the cause of action survives against the representative of such decedent, <§>lhey should be made parties to a suit for freedom, &c.</p>

<p>Sci. Fa. Case 45.</p> <p>Error to. the Breckinridge Circuit.</p>

<p>Chancery. Case 46.</p> <p>Error to the Nelson Circuit.</p>

<p>Chancery. Case 47.</p> <p>Error to tiie Greenup Circuit.</p>

<p> Final decrees. Writs of Error. Mrisdiction. </p> <p>The ease stated,</p> <p>This Court will nottalce jurisdiction. unless the decree be final, or by the consent of parties entered of record, which will bind, both Paities.</p>

<p>Detinue. Case 49.</p> <p>Error to the Garrard Circuit.</p>

<p>Chancery. Case 50,</p> <p>Error to the Louisville Chancery Court.</p>

<p>ChAKCERY, Case 51'.</p> <p>Appeal from the Louisville Chancery Court.</p>

<p>Chancery. Case 52.</p> <p>Error to the Christian Circuit.</p>

<p> Ejectment. Practice in actions at law. </p> <p>The oase stated.</p> <p>Altho’ declaration in ejectment be not noticedof record as filed on the day specified in thenotiee, yet if tenant in possession appear & plead, it is good ■ — Or if one be entered def’t. by consent of the tenant, or who tenant, and it so appears from the record, it isgood. hasgivenpossesis landlord to the</p> <p>ment (othei^than Tho’ the record do not show that the person enter. session,) was ei. ther landlord or otherwise bound to defend the tenant in possession, yet if the suit had been depending formany years, and several trials had, this Court will preSumehe was properly admitted to defend, so far as he is interested.</p>

<p>Case. Case 54.</p> <p>Error to the Jessamine Circuit.</p>

<p> Affidavit. Bail. Recognizance of Bail. </p> <p>Grounds of motion.</p> <p>Judgment of Circuit Court.</p> <p>Affidavit to hold one of several def’ts. to bail, must show that the removal of the person, or property of the def’t. sought to be held to bail, will defeat the remedy after judgment.</p>

<p>Chancery. Case 56.</p> <p>Cross Errors to the Louisville Chancery Court.</p>

<p> Guardian and ward. Trustee. Jurisdiction. </p> <p>The case stated,</p> <p>Decree of the Circuit Court.</p> <p>One who is irreg • ularly appointed guardian, will nevertheless, where he has been guilty of no fraud, be treated by the chancellor as an ordinary trustee and legal guardian.</p> <p>Such person will be held to ae’t for all monies received, and simple interestthereonfrom the time, as a faithful trustee he should have made it productive.</p> <p>Courts of Equity require all persons concerned in interest to be made parties.</p> <p>A settlement made by the Ct’y Court with one -who was guardian de. facto and not de jure, is not per se, prima fade _ evidence in his fa-favor — and to attack such settlement by specific objections thereto will not be required of a complainant.</p> <p>Allowancesmade to a guardian de facto of infants, whose father is in indigent circumstances, in a settlement with the County C’t without objection, then or on bill filed by wards for settlement, will bo presumed justly allowed, and sanctioned by the Chancellor—</p> <p>Norwilltheguardianáe/acíoofthe infant children of one who is in indigent circumstances, be compelled by the Chancellor to account lor the hire of a slave held by the father, on whose labor and services the wards were supported.</p>

<p>Trespass, Case 58.</p> <p>Error to the Calloway Circuit.</p>

<p> Pleas and pleading. Obligation. Notice. Cancelment of obligation. </p> <p>The orise stated,</p> <p>Pleas filed after demurrer to declaration overruled, waivesthe demurrer, & er» ror in. overruling it cannot be relied on here.</p> <p>Variance in the amount of sum demanded in the commencemen t of declaration & that claimed in the body; thereof, not available on general demurrer.</p> <p>Covenant to pay $800 in 3 years, but on condition that pi’ tf. procures his wife’s relinquishment of dower to certain lands conveyed to def’t. wife dies, the covenant becomes thereby absolute, and averment of due notice thereof to def’t. & of plt’f’s release from the condition, is sufficient after verdict.</p> <p>Def’t. not bound to notice an extraneous fact (not named in the obligation) whereby his conditional contract becomes absolute, noticemust be averred, 'and if denied, proved, to authorize arecovery — Plea denying such notice good bar to the action.</p> <p>Plea “that before the three years mentioned in the writing obligatory sued on had elapsed, it was delivered to the def’ ts. or one of them, and cancelled,” and stating other facts which, tho’ theydonotstrictly show an accord and satisfaction, or a sufficient consideration for the surrender of the tailing, yet if it tas actually surrendered is good and the action gone.</p>

<p>Case. Case 60.</p> <p>Appeal from the Mason Circuit.</p>

<p>Assumpsit. Case 61.</p> <p>Appeal from the Hickman Circuit.</p>

<p>Chancery. Case 62.</p> <p>Error to the Jessamine Circuit.</p>

<p> Parties in Chancery. Dower. Damages. Seizen. Costs. </p> <p>Bill for dower in land, aliened by the husband in several parcels,. may be against all the alienees.</p> <p>Costs in such ease should be against all.</p> <p>Damages for detention of dower, not recoverable where the husband aliened in his lifetime — no cost decreed in this Court, as the reversal is only partial.</p>

<p>Assumpsit. Case 64.</p> <p>Appeal from the Mason Circuit.</p>

<p>S^t. & Sum. Case 65.</p> <p>Error to the Mercek Circuit.</p>

<p>Bastardy. Case 66.</p> <p>Error to the Garrard County Court.</p>

<p> Execution lien. Pleading. </p> <p>The case, pleadings, and judgment of tlie Circuit Court.</p> <p>iteplication to a cognizance, defying any material fact therein, is good on general demurrer.</p> <p>The lieii imparted to an execution is intended to prevent the defendant from eluding its force by alienation of the property liable: quere, how long does this lien continue.</p> <p>The execution in the hands of the officer gives the lien, not the judg■ment — and it continues during the life of the execution.—</p> <p>If, after the return day of an ■execution, (not levied,) one entire day elapse before another is placed in the hands of an offi. cer whore the property may he, Uhe Hen ceases.</p> <p>'If a second writ ■of fi.fa. issue on the day of return of the first, (which was in the hands of an officer, for levy,) and be also placed in the hands of an offi••eer for levy, the lien created by 'the first fi.fa.'is continued, altho’ the second is issued to a different county.</p> <p>An execution in the hands of an officer gives a lien on the property of the def’t in the county, ■which is not lost by the temporary removal.</p> <p>Mandate.</p>

<p> Sheriff’s liability, on motion, for failing to return execution for thirty days. </p> <p>Sheriff, for failing to return execution for thirty days after the return day, is liable, on motion, for principal, interest, and costs,- and 30 per cent, thereon, at the time the liability is insured, and not to be computed at the rendition of the judgment.</p>

<p>Ejectment, Case 69.</p> <p>Error to the Nelson Circuit.</p>

<p> Equity and equitable jurisdiction. Eleemosynary corporation. Quo warranto. Information. Attorney General. Heirs. Trusts and trustees. </p> <p>Allegation of the bill.</p> <p>Extract from Pawling’s will.</p> <p>Demurrer to bill aadsus taiued.</p> <p>Chancery has no jurisdiction to declare the forfeiture of a charter of a corporation — or inquire into its misfeasances or nonfeasances for that purpose.</p> <p>Courts of Ghaneerymay enforce the performance of trusts confided to corporations.</p> <p>Subscriptions received in aid. of a trust fund, (the purposes & object of which is designated by the founder,) are to be held and used as the trust fund andsubjected to the same control and no other.</p> <p>Trustees, invested with the management of a fund for a specified object, may exercise a sound discretion as to the means hesi calculated to effect that object</p> <p>Qu — May not the Attorney General in Ky. proceed by information in Chancery vs corporations eleemosynary in their character?</p> <p>in England it wasthe Iemedy’</p> <p>Purposes of a quo warranto.</p> <p>Judgment thereon.</p> <p>Information in. Chancery may be prosecuted -by Attorney Gen. in Ify. against eleemosynary corporations to enforce a trust, —or the founder or his heirs, (if he be dead,) or any beneficiary, (having an interest, ) or any other (having a vested interest in the fund) may file their hill to enforce a faithful execution of the trust conferred.</p> <p>No individual can proceed against an eleemosynary corporation, unless he be party to the donation, or a representative of one who is, or interested in the same, or in the use to which the fund is donated,</p> <p>Contractsbysubscription, in aid of a charitable fund, may be avoided as other ■contracts, for false suggestions or suppressions of truth.</p> <p>But expressions of opinions as to the effect on the value of property ata particular point where it is proposed to locate a college, (which is the objectinraising the fund,) is not such representationas will vitiate the subscription, or subject those who express it to the imputation of fraud.</p> <p>Decree affirmed.</p>

<p> Husband and wife. Witness. Competency. Evidence. </p> <p>The case stated.</p> <p>Wife, either during coverture or after death of husband, from, reasons of policy, is not a competent-witness to malee any disclosure which implies a violation, of the confidence reposed in her as a wife.</p> <p>But after the death, of husband she is competent to prove his public acts, or those designed to be public, not effecting his character.</p>

<p> Judgment bij default. Ejectment. Femes covert. Error Coram vohis. </p> <p>If feme sole, tenant in possession, be seived with declaration in ejectment, and notice, it is not error to rentier judgment by default, agaist her, though she may marry before judgment.</p>

<p>Chancery. Case 73.</p> <p>Appeal from the Bath Circuit.</p>

<p>Ejectment. Case 74.</p> <p>Error to tub Clarke Circuit.</p>

<p> Exectuors. Qualification of executors. Trusts. Conveyances. </p> <p>The case stated.</p> <p>Jas. F. Moore’a will.</p> <p>Power given to executors to sell real estate “any two or more may act,” is not a personal trust, which may be exercised by one named as executor, but did not qualify as such —one, therefore, who has not qualified as executor cannot, tho’ uniting with one who has, sell and convey under the will,</p> <p>One named as executor in a will has no authority to act without qualification, after probate and the qualification of another person.</p>

<p>Ejectment. Case 76.</p> <p>Appeal prom the Garrard Circuit.</p>

<p> Onus probandi. Affirmative plea. Judgment. </p> <p>Case stated and pleadings of the parties, and judgment of the Circuit Court.</p> <p>Judgment should be given against a defendant in replevin, filing a cogniganee and justifying and offering no proof— the onus probandi devolves on him.</p>

<p>Pet. & Sum. Case 78.</p> <p>Error to tiie Jefferson Circuit,</p>

<p>Detinue. Case 79.</p> <p>Error to the Jessamine Circuit.</p>

<p> Assignor and assignee. Diligence. </p> <p>'Case stated, pleading & judgment of the Circuit Court.</p> <p>The assignor of a note on one who is a non-resident of the state at the date of the assignment, is not responsible on the assignmentwithout suit and a return of nulla bona against obligor in the stat^ and place of his residence.</p> <p>Areturnof nulla bona on a judgment recovered in this state when obligor is a resident of another state, and only temporarily here will not render assignor responsible.</p>

<p>Case. Case 81.</p> <p>Error to the Christian Circuit.</p>

<p>Chancery. Case 82.</p> <p>Error to the Louisville Chancery Court.</p>

<p> Attachment. Priority of lien. </p> <p>Facts of the case.</p> <p>H several attachmentsbedelivered to a sheriff, at different hours, on the same day, and all levied at the same time, they should be satisfied according to the order of their delivery to the sheriff.</p>

<p>Covenant. Case 84.</p> <p>Appeal prom the Fayette Circuit.</p>

<p>Chancery. Case 84.</p> <p>Error to the Franklin Circuit.</p>

<p>Chancery. Case 85.</p> <p>Error to the Mercer Circuit.</p>

<p>Ejectment. Case 86.</p> <p>Appeal prom a judgment of tiie General Court.</p>

<p>Chancery. Case 87.</p> <p>Error to the Louisville Chancery Court.</p>

<p>Ejectment. Case 88.</p> <p>Appeal from the Green Circuit.</p>

<p>Debt, Case 89,</p> <p>Error to the Shelby Circuit.</p>

<p> Pleas and pleading. Infancy. Partnership note: </p> <p>Plea of infancy, by one member of a firm, to an. action on a note in the name of the firm, is notavoidedby application that defendant had continued a partner of the firm for upwards of a year after his arrival of full age, and had not in that time nor for years afterwards indicated a disposition to dis-affirm any note executed in the name and in the business of the firm, without an averment that he had knowledge of the note declared on and was looked to fox payment.</p>

<p>Ejectment. Case 91.</p> <p>Error to the Garrard Circuit.</p>

<p> Stages owners and proprietors of. Masters. Principals and agents. </p> <p>The case stated.</p> <p>Masters or principals, by the common law, are liable for injuries occasioned by the negligence or unskillfulness of their agents or sub-agents whilst in their employ and in discharge of their business, though the act may be obviously tortious.</p> <p>Proprietors of stage coaches are bound to provide skillfuland trustworthy drivers & agents, and aie responsible for their unskillfulness, negligence, or unfaithfulness</p> <p>Drivers of stage eoaolies and sub-agents must so conduct themselves in the discharge of the duties assigned to them as not to effect the rights of others.</p> <p>The statute of Ky. (Sfiss. Acts, 1837-8, p. 155,) gives an action againstthe ‘owners and proprietors of the stage or other coach, or rail road ear,’ for such injuries as here complained of.</p> <p>The owners ancl proprietors are guilty of ‘suffering and permitting,’ within the contemplation of the statute, when the act is done, or permitted, by themselves, their agents, or sub-agents, and are responsible.</p>

<p> Evidence. Competency of vñinesses. Bills of Exchange. </p> <p>(Question stated.</p> <p>Ancientcommon law and modem adjudications establish the competency of a witness whose interest is equal •on both sides.</p> <p>Ancient adjudications in England.</p> <p>The later adjudications in England.</p> <p>The adjudications in N. York and Pennsylvania, Yiiginia and Tennessee contra.</p> <p>The doctrines of evidence in Jordaine vs Lash-brook approved.</p> <p>The maxim, both of civil <y common law, ‘that no oneshallbeheard alleging his own turpitude,’ is applicable to parties not witnesses.</p> <p>It is a gen’l rulo that fraud, or want of considerationcannolbe pleaded to ail action on a bill of exchange against a iona fide holder — but whenever one party to a bill of exchange may lawfully pi’d any fact in his exoneration, any other party to the bill may prove that fact, who is not interested in establishing the defence.</p> <p>Decisions of Supreme Court of U. S. according with the case of Walton vs Shelly, (1 Term JRep. 161.) cited, and modern adjudications of England and Virgin* ia, contra, referred to and approved by the Ct. upon reason, analogy, and principle.</p> <p>Wantof consideration nota good plea to action on hill of exchange hy assignee.</p> <p>Note sued on is not a bill of exchange , and is assignable only under our statute, vesting the light of action in the assignee— plea of want of consideration was good, and assignor a competent witness to establish the defence.</p>

<p>Replevin. Case 94.</p> <p>Error to the Estill Circuit.</p>

<p>Oasis. Case 95.</p> <p>Error to the Fayette Circuit.</p>

<p> Limitation. Mortgagor. Assignee of mortgage. Equity jurisdiction. Infants. </p> <p>The case stated.</p> <p>Answer relying on lapse of time.</p> <p>Decree of Chancellor dismissing bill.</p> <p>Mortgage for land made in 1803, with power to mortgagee or his assigns to sell and convey, assigned in 1807, assignee of mortgage sells and conveys in 1808, such sale and conveyance in the name of morgagee by assignee as his attorney in fact, is valid, and vests the legal title in the purchaser.</p> <p>In cases of concurrent jurisdiction equity will notrelievewhere remedy at law lias been lost by lapse of time, except cases of fraud, (or perhaps mistakes,) where equity dates the right of action at the time of the discovery of the fraud.</p> <p>In easesofexclusive jurisdiction the Chancellor usually applies lapse of time as a bar to right of entry on land, right of mortgagor to redeem, &e. and 20 years adversary holding, and lapse of twenty years debTduThaslfcen presumption against deem in the latenu^fn tife former-</p> <p>20 years adverse possession succeeding an actual or virtual disseisin, operates as a bar in equity as at law.</p> <p>Infants, &e. only allowed 3 years after they arrive of full age to sue for lands.</p>

<p>Debt. Case 97.</p> <p>Error to the Harrison Circuit.</p>

<p> Choses in action. Judgment creditors. Usury. </p> <p>“ Glioses in action” in the statute subjecting dioses in action and equitable in'tereststo the satisfaction of judgment creditors, does not embrace all rights of action.</p> <p>Claims which the defendanthasthe perfect right to assert, or not, & which he does not elect to assert, are not included.</p> <p>The right to recover money paid as usury depends on, and is preceded by, the election of the, party to reclaim" it; until which election, it does not become a chose in action within the statute.</p> <p>The statute does no t substitute the creditor to the debtor’s right to make this elec~ tion, and the Chancellor cannot control it, in a fair transaction.</p>

<p>Chancery. Case 99.</p> <p>Error to the Madison Circuit.</p>

<p> Principal and' surety. Contracts void and voidable. Exoneration of sureties. </p> <p>An executed valid contract between creditor and principal obligor for indulgence, without the assent of surety, operates his exoneration.</p> <p>Such indulgence being in consideration of usurious interest paid will not change the case.</p> <p>Although the partypaying usury or his surety iii that ease may elect to avoid the contract, it is binding on creditor.</p> <p>By an executed contract for indulgence, the creditor is bound although the money paid exceed legal interest on the sum due for the time of indulgence, and surety being by suchcontraetobstruotod in some of his legal remedies is exonerated, when made without his assent.</p> <p>Assignor of a note having agreed to indulge the principal debtor for a valid consideration paid before assignment by which contract sureties in the note are exonerated, is responsible to his assignee to the extent of the loss by such exoneration.</p>

<p> Non-resident debtors. Substitution. - Jurisdiction. Chancery practice. </p> <p>The bill.</p> <p>Answer of OldJiam.</p> <p>Amended bill.</p> <p>Oldham’sanswer to amended bill contesting the jurisdiction'of the Court, &e. Decree of the Circuit C’t ■ for complainant.</p> <p>The courts of Ky. have jurisdiction in favor of a resident creditor on bill filed against a no n-r e s i d e n t debtor and his debtor, tho’ the last be a nonresident also, if process be here served on him and he have effects in this country on whi ch the decree may operate.</p> <p>The debtor of compl’t. might have sued his debtor if found hero, and the creditor (complainant) will be substituted by the Chancellor to the rights of his debtor.</p> <p>Our courts have jurisdiction to try incidentally an alleged fraud in the assignment of notes & demands for money attached by the Chancellor to satisfy a resident creditor’s demand against a non-resident, tho' the assignment may have been made in another state.</p> <p>The effects of no n-r es id ent debtors will be subjected by the Chancellor to the satisfaction of his debts, in the hands of others — who will be prote'ctedagainst the debtor thereafter.</p> <p>The judicial decisions of sister states are entitled to full effect, where the courts had jurisdiction over the person, subject, or ¿teg.</p> <p>Where the nonresident debtor and the debt are both within the •state, & process is served on the debtor, the jurisdiction to decree away the demand in favor of a resident creditor is clear — and full power to decide all incidental questions presented in the investigation.</p>

<p> Policy of insurance. Insurers and insured. Partial loss. Salvage. Trans-shipment. Extra freight. </p> <p>Terms of the poi-.. iey sued on.</p> <p>Facts agreed im the cause.</p> <p>Judgment of Circuit Court on the agreed case.</p> <p>Insurers who ate to be liable only when the loss amount to 10 per cent, on the amount insured; but who further agree to pay, proportion-ably for salvage, are bound for their proportion oi salvage expenses, though the loss amount mot to 10 per et.</p> <p>The insurer guarantys only the safe arrival of the goods, and is not liable to the insured for extra freight, incurredby atransshipment,incase of disaster insured against.</p> <p>Insurer does not guaranty a speedy arrival, nor against any loas by delay; unless the delay proceeded from a peril insured against, and loss upon the cargo, ■occasioned by such delay arising from peril insured against; nor against the loss by fluctuations in the market.</p> <p>To vender insurer liable for expenses of transshipment, itmnst appear to have been rendered necessary by peril insured against, the price reasonable and incurred with a view to the interest of all concerned.</p> <p>Mandate to the Circuit Court for judgment- for plaintiff.</p>

<p> Trustees and Trusts. </p> <p>The case stated.</p> <p>Decree of the Circuit Court.</p> <p>Doctrine of the British Chancery before the resolution in regard to compensation to trustees.</p> <p>Trustees may,by our Courts, be indemnified and reasonably compensated for expenses, shill, and attention to trust duties, as other trustees, curators, executors, administrators, &c. without any express contract therefor.</p> <p>Courts of Pennsylvania & Virginia allow compensation totrustees without any express contract therefor.</p>

<p> Undue influence. Mental incapacity. </p> <p>Arguments and persuasionsused by a testator’s children to induce a devise to a brother’s or sister’s children, who were poor, is an influence worthily exerted and free from selfishness and should not condemn a will.</p> <p>A testator maybe aided by the views of others in coming to a just conclusion as to the manner of disposing of his property by will, and the influence thereby exercised unless it be an interested influence cannot be deemedan undue influence.</p> <p>Will ordered to record here.</p>

<p>Chancery. Case 105.</p> <p>Error to the Franklin Circuit.</p>

<p>Case. Case 106.</p> <p>Appeal erom the Washington Circuit.</p>

<p>Indictment. Case 107.</p> <p>Error to the Lexington City Court.</p>

<p> Entries. Void patents. Evidence. Compact with Virginia. </p> <p>State of the ease as presented by the record and questions made.</p> <p>One who enters on land claiming it as his own, before 7 years expire he agrees to hold under another having an elder patent, he cannotthereafter rely on the limitation of 7 years against him.</p> <p>One who enters on land with title, claiming it as his own, and afterwards, before the 7 years expire, undertakes an agency and superintendence lor one holding an elder-patent for the same land, and claim to hold under it, and dies holding under it, withoutabandoning Ms own title or the possession under it, his heir is notestoppedto set up his own title and right to possessionunder it.</p> <p>Surveys on land west of the Tennessee, contrary to location are void — And in ejectment for military land west of the Tennessee it is competent for def't.toshow by parol proof, that the surveyis made variant from the location,- and therefore -void to defeat the action.</p> <p>Virginia, by the compact with Kentucky, reserved the right of disposing of the lands west of the Tennessee river until 1st May, 1792.</p> <p>7th sec. of compact protected private rights derived from Va. and their determination by the laws of Virginia.</p> <p>Barker’s heirs had no private rights beyond the limits of their entry.</p> <p>The Legislature of Kentucky had arightto confine the survey on entries,westofTennessee river to the ground designated by the entry, and did not, thereby infringe the compact.</p> <p>Where the Legislaturehasdeclared that for any cause a patent shall be held void, parol proof dehors the patent is admissible to prove the cause which renders it void.</p> <p>That a patent is void may in some cases be shown collaterally.</p>

<p>Case 109.</p> <p>Error to The Shelby Circuit.</p>

<p> Will. Issue on bill filed contesting a will. Onus probandi. Parties. Opening and conclusion of argument. </p> <p>The case stated.</p> <p>Issue formed in the case inWoodford, and exception thereto.</p> <p>Finding: of the jury on the issue formed.</p> <p>Points presented for revision.</p> <p>The statute of 1797, on the subject.</p> <p>its ícterpretaliTto^iü/íáse"</p> <p>The modes of ^ngíand'ist/‘ira of law’’' orw“jPJ might have been a^anyUmewUhl in 30 years.</p> <p>In. Ify. the proof in the County Court is according to the common form by the executor and not conclusive.</p> <p>The statute of 1798, sec. 11, provides an improved substitute for the proof of wills, according to the “form of law,” and requiring, as iii England, “an original probate to operate finally as to all persons concerned.’’</p> <p>Bills in Chancery, whatever may be the form, contesting a will, brings up the contested paper for final probate or rejection, to be tried as tho’ there had been no probate.</p> <p>Def’t on a trial of the validity of a will, on bill filed, is bound to prove every fad necessary to authorize the pro-hate of a will in the county court, not admitted by the pleadings, whatever may be the form of the issue, defendant holds the affirmative, on the trial before the jury.</p> <p>Proof of a will in a Cty. Court, is not sufficient, prima fac.ie, in case a bill is filed contesting the will, to throw the burthen of proof on the complainant.</p> <p>A comprehensive issue simply affirming on one side, that the contested paper is the last ■will of the decedent, and denying that general affirmation on the other side, wouldmore comport with the letter of the statute than any more restricted issue. Argu.</p> <p>As no precise form of issue is prescribed by the statute, to try the validity of a will; if only one essential fact be put in issue, (all others admitted) it is still the duty ot defendant to establish that fact, such special issue would not be deemed immaterial or illegal.</p> <p>The statutory provision authorizing the filing a bill contesting ihe validity of a will virtually opens the question of probate to be tried by a jury, as an original question between the parties.</p> <p>Where the issue to try the validity of a will is an affirmation by 1 party, that the contested paper contains the true last will of decedent, and that affirmation is generally or specially traversed by the other party, the issue is formed, and the parly in the affirmative has a right to open and conclude the argument to the jury.</p> <p>Slaves who purport to be emancipated by a will which has been proved in the County Court, are necessary parties to a bill filed, contesting the validity of such will. — And an agreement of record to waive all objections as to parties, does not imply that those who are not made parties have waived the necessity of their being made so.</p>

<p> Witness. Wills. </p> <p>The decision of the Count7Ct,</p> <p>The facts for and aforesaid!16 Wl11</p> <p>Qu.-Can the admission of one of several devisees, (obviously against his interest,) be legally admitted on a trial for probate of the will? They arelegallyadmissible as presumptive evidence,not as an admission by all concerned, but by one concerned, against his interest, which would not have been made unless he believed it true.</p> <p>A paper, dated in 1825, is offered for probate & recorded by the County Ct. — on. errorbronght,lho proof shows a subsequent will of 1832, made & duly published— this Court will. not order a copy of such last will so proved here to be Ac'erecoided, as it was not offered ft r record here or in the Ct. below, but leave the parties to litigate that matter as they may hereafter elect.</p>

<p>Chancery. Case 112.</p> <p>Appeal from the Fleming Circuit.</p>