42 Ky.

Volume 42 — Kentucky Reports

157 opinions

42 Ky. 1Murray v. Oliver (1842)
Case 1. Error to the Hickman County Court.
42 Ky. 2Scott's heirs v. Scott (1842)
 Rescission of Contracts. Continuing consideration. ÍJeer'eé of Circuit Court. When consideration of a conveyance of land by father to son is continuing, such as maintenance, if the sonfail to perform it, the chancellor will rescind the contract — and parol evidence is competent to prove suehtohavebeen. the eonsidration, when it is not contradicted by the deed. In such case, on the death of the father, (grantor) the widow surviving is a necessary party.
42 Ky. 4Faris v. Starke (1842)
 Slander. Pleading. The facts stated an proved. The pleaofptohable cause to an action for a malicious prosecution may be sustained by-proof less than would insure a conviction of plaintiff on the charge made. Suchproof as will authorize a man of ordinary prudence to believe, and expect a conviction is sufficient. The question is, do the circumstances amount to piobable ground of belief and probable cause of piosecution? and it is notessentialthat all the-witness-entitled to ab-before aCjurynce
42 Ky. 8Burns & McConnoughy v. Parish (1842)
Error to the Nicholas Circuit. ' Case. Case 4. The case
42 Ky. 10Lail v. Kelly (1842)
Bills of Exchange. Protest. Notice. By the statute of 1837, Ses. Acts, 43, “notarial protest shall be evidence of the fact of presentation and nonpayment,” — and when on the face of the bill it is agreed“that protest shall be evidence ofdne presentment” —the exhibition of a notarial protest, is conclusive both ofpresentationandnon-payment. '
42 Ky. 11McNeil v. Sanford (1842)
 Co-sureties. Contribution. Evidence. Iastruciionofthe Court, — verdict and judgment. The fact that on e signed as surety, a joint and several note, eight months after the other obligors had become bound, is insufficient to show that the undertaking was merely as- a collateral guarantor of the other obligors, and in case there is principal and other surety, the presumption is, that the last is a supplemental surety. In a suit by one surety against another, the original obligee, to whom the debt has been paid, is a competentwitness.
42 Ky. 13Price's Administrator v. Boswell (1842)
Chancery, Error to the Fayette Circuit. Case 7. The allegations of complainant’s bill.
42 Ky. 25Transylvania University v. City of Lexington (1842)
 Public Highways. Easements, <fc. Decree of Circuit Court. Every owner of ground on any street in a town or city, has an indisputable right to the common and unobstructed way of the contiguous highways, so far as it is necessary to afford him incidental easements, of which the Legislature cannot deprive him without consent, orjusteompensation in money. The statute and contract construed by the Courts.
42 Ky. 30Chiles v. Anderson (1842)
Chancery. Case 9. The case stated. Error to the Montgomery Circuit.
42 Ky. 31Edelin v. Clarkson's Executors (1842)
 Parol contract for land. Consideration. Plea that the note sued on “was given in consideration of a sale of land not evidenced by writing,” is not a plea setting up the statute of frauds in bar of the action; but is only a plea of wantorfauure of consideration— and in such case where the contract was to deliver the possession of the land before the day of payment, and Eossession has eengiven, such defence is noy available at layr, nor in equity, if the conveyance be made.
42 Ky. 33Ingles v. Hume (1842)
Error to the Pendleton Circuit. Debt. Case 11.
42 Ky. 34Graves v. Wood (1842)
Chancery. Error to the Barren Circuit. Case 12. The case stated.
42 Ky. 35Prentice & Johnson v. Buxton's Administrator (1842)
 Contracts. Diligence of agents. The chancellor’s decree. Purchaser of a printing establishment & subseriptionandpalronage, assuming debts and undertaking the collection of the dues to the establishmant, and to pay surplus to vendor, is bound to use reasonable dilligence in making collections and disbursm’ts, and proof that any of the sums due to the establishment were lost by insolvency, &e., devolves onthepurehaser. A _ creditor receiving notes &c. of his debtor, to collect, placing themin the hands of an irresponsible agent, will be held- to account therefor to his debtor. Parties to the same suit in Chancery for the settlement of accounts, are boundby adecree on the cross bill of one defendant against the complainant.
42 Ky. 50Burk v. Chrisman (1842)
Chancery. Case 14. The ease stated. Error to the Jessamine Circuit.
42 Ky. 51Chiles v. Jones (1842)
 Evidence. Parol contracts. New trial. Where there is a written contract for the delivery of property, and fixing the time of delivery, and the price to be paid therefor, if a parol contract be afterwards mads changing ths time of delivery, in a suit in assumpsit for the price, the written agreement is properly admissible in evidence as inducement to the parol agreement and evidence of its terms. Points arising in these eases. Parol proof sufficient to authorize the jury to find that the parties had postponed the day fixed for performance by the written contract. It is notnecessary that the inference drawn by the jury should be the most rational from the facts proved; it is sufficient, to sustain the verdict, that it be not an irrational inference.
42 Ky. 54Francisco v. Bullock (1842)
Motion. Case 16. Error to the Gallatin Circuit. The case stated.
42 Ky. 57Pell v. Dickens (1842)
Debt. Error to the Livingston Circuit. Case 17..
42 Ky. 58Miller v. Stagner (1842)
 Rents. Fee simple estates. The execution of, a deed, conveying the reversion in fee of an estate subject to alease for years, yielding rent, is a transfer of the right to the accruing rent.
42 Ky. 59Waring's heirs v. Reynolds (1842)
Chancery. Error to the Madison Circuit. Case 19.
42 Ky. 60Esther v. Akins' heirs (1842)
WlLTi. Case 20. Error to the Green Circuit. The case slated;
42 Ky. 61Catching v. Davis (1842)
Trespass, Appeal from the Laurel CiRCurr. Case 21. The case stated.
42 Ky. 64Clough v. Clough (1842)
Vendor and vendee. Partition. Rents. ’Decree of Circuit Court. A party-whose -’duty it is to bring other parties before the Court, may not complain of the want of such parties. A purchaser of land by parol contract, has a lien thereon for payments made, and for ameliorations made in good faith. A. vendee of land ■with knowledge ofaprevioussale by the vendor, takes the purchase subject to ell liens shared by-the first purchaser. As between vendor & vendee, the use of the consideration is considered as equivalenttp the use of the land. When a decree by the chancellor, tho’irregularly made, places the partyseeking its reversal in the situation he should occupy. There will not be a reversal where such party has Induced such irregularity.
42 Ky. 67Oldham v. Turner (1842)
Error to the Madison Circuit. - Chancery. Case 23. The case stated.
42 Ky. 72Best v. Givens & Wood (1842)
 Infancy. Merger. Confirmation. Pleading. Evidence. A note executed notvoiatatwpit able" Thd’ this Court sanotiorT^^the ¡^^sufficiencyofpleas byob. wherTno'demuij|rt¿g p1®^ ^ j®°tins reply»k® towards avail i™ofthe cóuít Jer had betTIÍ ed- and oveirul- To an action of debt on a note, the defendant plead infancy at the date of its execution; subsequently the plaintiff brought assumpsit on the original consideration, to which defendant replied, that the simEle contract had een merged by the execution of a note forthe demand, and relying on this plea succeeded in defeating a recovery on assumpsit; the plaintiff in the actionofdebt then replied to the plea of infancy, that defendant had affirmed the note and ratified the same, subsequently to its execution, when of full age, and offered the recordofthecase in assumpsit as evidence thereof; held that the record in assumpsit was properly admitted as evidence, and showed an affirmance of the note. An affimance or confirmation at any time, though after the filing of the plea of infancy, may be good.
42 Ky. 77Moore v. Grubbs (1842)
Error to the Estill Circuit. Chancery, Case 25. The case stated.
42 Ky. 79Faris v. Commonwealth (1842)
Case. Error to the Washington Circuit. Case 26.
42 Ky. 80Banta v. Reynolds (1842)
Trespass. Case 27. The case stated. Error to the Franklin Circuit.
42 Ky. 82Chiles v. Boon's Heirs (1842)
 Equity and equitable jurisdiction. Warning order. Traverse. Is a traverse necessary as to a defendant against whom no decree is sought? —Qu. Where, by a decree of the Federal Court, a part of the heirs of one have been decreed to convey, it is no objection to a suit in a State Court that such heirs are not parties to a suit bro’t for a conveyance fiom the remainder of of such heirs. An allegation of non-residence when not necessary to be made, neednot beprov» ed. Depositions not objected to in the court below cannot be in this court. Warning order constructive notice of the pendency ofthesuit, and depositions read against a non-resident in such case cannot for the first time be objected to in this court. Traverse does not amount toan objection to reading depositions on the documentary evidence.
42 Ky. 90Berthelemy v. Johnson (1842)
Chancery. Error to the Boone Circuit. Case 29. The ease stated.
42 Ky. 93McKinney v. Pope's Administrator (1842)
 Gaming. Equity Jvrisdcition. Money loaned to pay off a debt founded on a gaining consideration, will not be withheld from the lender at the instance of the borrower. May money lost at gaming since the statute of 1833 (Slat. Law, 758,) be recovered in chancery ? By the common law, wagers were valid, and Courts of Equity did not interfere, except on the ground of hardship orfraud to prevent a recovery. Nor after payment thereof to enforce its payment because in pari delicto potior est conditio pendentis. The statute of 1798 and 1799, gave an action for money won and paid under particular circumstances — by the act of 1798, the exclusive right reserved to the loser for len days, others limited to 6 months; but by that of 1799, the action was left subject to the general limitation of five years, and no exclusive right reserved to the loser, one half to go in aidof the county levy the other to the person suing. The provisions of the statute of 1833, establishes in behalf of the loser the right to recover back the thing lost & paid, on the presumed ground of fraud or oppression (and the imputation of equal guilt cannot be relied on,) and on this ground Courts of Equity may decree the re-payment of money lost at gaming and paid, over. The general slatmeofl imitations governs t,he time of bringing suits at law and in Chancery lor recovering money, &c. lost at gaining.
42 Ky. 102Green v. Otter (1842)
Chancery. Case 31. The case staled, Appeal from the Edmondson Circuit.
42 Ky. 105Miller v. Malony (1842)
 Incorporated Companies. Assignments in Equity. The Louisville & Elizabeth Turnpike Road Company may in equity assign the amounts due them for subscriptions. The Chancellor is not controlled by the legal assignability oí a demand, but looks to the use.
42 Ky. 106Hays v. Tribble (1842)
Chancery. Case 33. The case stated, and prayer of the bill. Error to the Bath Circuit.
42 Ky. 110Gray's widow, Administratrix, & Heirs v. Sparrow (1842)
Chancery. Appeal from the Campbell Circuit. Case 34. The ease stated, and decree of the Circuit Court.
42 Ky. 113Graves v. Ford (1842)
'Error to the Jefferson Circuit. 'Debt. Case :35. The case stated.
42 Ky. 115Bullet v. Stewart (1842)
Lis Pendens. Lien. Proceeding in Rem. Severaljudgment creditors, each having a return of nulla bona on their executions, may unite in- »l bill in Chancery, to subject and distribute a common fund — and after the service of process was a lis pendens, a lien without any injunction.
42 Ky. 116Marks v. Jordan (1842)
Ejectment. Error to the Anderson Circuit. Case 37. the case stated,
42 Ky. 117Hyzer v. Stoker (1842)
 Dower. Election. Rents. A widow who abandoned the possession, then, suing one who was in possession as heir and purchaser under execution allowed to make her election to take the use every 3d year, or one ihird of the vents in future,and only one third of the rents which had accrued. Such an election must be made in Court, not in the countv.
42 Ky. 119Webb v. Read (1842)
Error to the Louisville Chancery Court. Chancery. Case 39. Tlie case stated, and decree ofthe Chancellor.
42 Ky. 121McFadden v. Finnell (1842)
 Assignor and Assignee: Equity jurisdiction. The Chancellor has jurisdiction in behalf of as• signee of a note, ■vvh ohas failed to receive satisfaction,after the use ofduedilligence, the assignor being a non-resident, and may decree against a remote assignor, all proper parties being before the Court. The fact that the Judgment6 “ had iSght have been subjected by the thefect washnot sign'ee,'° cannot affect the remeay ot assignee vs assignor, where duVdil^neet & fotfff^which^is facie evi■rency in such sase‘ aot tíounato file bills of discovecover property tíon6oVtoe comí pel a discovery tion &c., with-knowledge 'that they exist.
42 Ky. 123Stoll v. Knight (1842)
Error to the Jefferson Circuit. Ret. Hum, Case 41. The case statecL
42 Ky. 125Garland v. Denny & Colston (1842)
 Practice in Chancery. Warning Order. Traverse. The Chancellor’s decree. The case of Calk vs Chiles : 9 Dana, 265, examined. The filing a traverse by the clerk does notsopntin issue the fact of non-residence as to require other proof thereof than that which the Court had required to make theorderofwarning on which the traverse isbased. Notes exhibited in a bill in Chancery against one alledged to be a non-resident without objection, should be regarded as evidence of a debt, so far as evidenced by them, the general traverse notbeingonoath is not sufficient to put the complainant to the proofoftheir execution. But accounts eyibited and relied on must be proved. A remainder af-' ter an estate for life in slaves by deed is not void, and if the life estate be grantedto a feme covert vests onlythelifer estate in the husband.
42 Ky. 133Glenn v. Coleman (1842)
Error to the Louisville Chancery Court. Chancery. Case 43. The ease stated.
42 Ky. 135McElroy v. Wathen (1842)
Error to the Washing ton Circuit. Chancery, Case 44. The case stated.
42 Ky. 138City of Louisville v. Bank United States (1842)
 Construction of contracts. Bank United Slates. Boundary. Origin Of Louischaractered this controversy, The stipulations Eowan^and ae j™^®®3 of Lou"’ Rowan’s conveyance of a site fcr the Portland Canal. Purchase by the city of the ground belowBeargrass, not conveyed bv Rowan. Rowan’s mortgage to the Bank U. S., and conveyance to Lytle’s heirs. Bill and object. Rowan’s answer and cross bill. Answer of the city. Decree of the Chancellor. The Bank of the U. S. by her corporate name may maintain suits to recover her rights, instituted before the expiration of her charter, on the 2d March, 1838. This suit also maintainable for the benefit of the Bank on Rowan’s cross bill. Qu. — Does the grant of land to the margin of a river, where no tide ebbs and flows give a constructive right to the land covered by the water to the middle of the stream ? The sale by commissioneisimder an act of the Legislature of Virginia, in 1787, of the land between the town of Louisville and the Ohio river, to Campbell, and ¡the acquiescence in that sale, ever since, and their purchase from Rowan of that title, held to es-top the city from ■denying Rowan’s ¡title. The contract should be construed by taking into view all its provisions. When the one party deeded to the other one. half the ground on which the latter was to construct and pave a wharf, and the profits or tolls were thereafter to be divided, all repairs are improvements, & repairs after constructed, to be at joint expense, out of the profits. •Agreement that one party may !miy at the joint expense of himself and another, and wharf and ¡pave, and out of tolls retain one ihalf of the expense of costs of ■wharfing., &c., implies that the half of the interest on the necessary fund is to he ■paid. The city bound as Rowan’s trustee, for interest on any balance of tolls due and withheld from him. The right of the corporation of the city of Louisville to levy tolls and in the wharf, is not a fee-simple title, vendible, butthe chancellor can only operate upon the profits.
42 Ky. 159Abel v. Cave (1842)
Appeal prom the Marion Circuit. Chancery. Case 46. The case stated.
42 Ky. 160Patton's Adm'r v. Patton's Heirs (1842)
Error to the Christian Circuit. «Chancery. ■Case 47. The case stated.
42 Ky. 162Offutt v. Offutt (1842)
Appeal prom the Spencer Circuit. Will Case. Case 48. Xísc cas® stated,
42 Ky. 164Williams v. Thruston (1842)
Covenants. Contract, Construction. A covenant to fee in c°ise offinaisuceesshiall holding the-prop-procuring^TnontionW*bafsimany subsequent ae-
42 Ky. 165Luman v. Neete (1842)
 Assignor and assignee. Evidence. In a suit by assignee vs assign- or, proof that theassignee knew of property on which the execution might have been levied, is admissible, but thejfecithat there was property, without showing that assignee had knowledge of it, should not bar a recovery vs assignor, after return of nulla bona.
42 Ky. 166Rennick v. Ficklin (1842)
Husband and wife. Necessaries, Separate maintainanee. Tho husband and ■wife separate, and provision be made for her maintenance,yet if during the separation wife buy necessaries and the parties became reconciled the necessaries come to possession of the wife and family, husband is liable.
42 Ky. 167Gates v. Kennedy (1842)
Error to the Garrard Circuit. Chancery. Case 52.
42 Ky. 173Dennis v. Warder (1842)
Error to the Fleming Circuit. Ejectment. Case 63. The case stated.
42 Ky. 176Masters, Murphy, & Reynolds v. Martin's Heirs (1842)
Appeal from the Jessamine Circuit. Writ of Error coram vobis. Case 54. The causes of «error.
42 Ky. 178Brozee v. Poyntz (1842)
Appeal from the Mason Circuit. Assumpsit. Case 55. The ease stated.
42 Ky. 181Bramblet's Heirs v. Picket's Heirs (1842)
 Construction of contracts. Lapse of time. A purchaser agreeing to take 500 acres out of a 5000 acre tract of land, “at either end. or on any line, so as not to injure the figure of the remainder,” electing a corner, shall go equal lengths on each line of the angle from the corner. A possession so taken and acquiesced in tor 20 years, will not be changed at the instance of the vendor. Nor will it be changed at the instance of the purchaser, especially when he anclhisheirshave enjoyed the possession for more than 20 years.
42 Ky. 184Hanley v. Wallace (1842)
Appeal from the Jessamine Circuit. Chancery. Case 57. The case stated.
42 Ky. 196Green v. Botts (1842)
Error to the Fleming Circuit. Replevin.. Case 58.
42 Ky. 198Day v. Justices of the Fleming County Court (1842)
Error to ti-ie Fleming- Circuit. Mandamus. Case 59. The ease slated.
42 Ky. 199Nutter v. Connet (1842)
Appeal and Writs op error to the Jessamine Circuit. Chancery. Case 60. The case stated.
42 Ky. 204Bainbridge v. Owen's Administrator (1842)
 Lien. Guaranty. Parties. One of two persons who was bound by contract to pay the balance of a debt which might not be raised by a lien given on a house and lot, purchasing the same at a great sacrifice under a decree to which the other guarantor was no party, which decree was afterwards reversed, and when the purchaser had sold to aninnoeentman, held responsible in equity to pay the debt not raised by the. sale, to extent of the price for which he sold, deduetingtheprice paid at the sale under the decree.
42 Ky. 208Commonwealth v. Griffin (1842)
Error to the Pulaski. Circuit. Indictment. Case 62. Tize case stated.
42 Ky. 217Farrow v. Barker (1842)
Chancery.. Error to the Mason Circuit. Case 63.
42 Ky. 218Stewart & Co. v. Hall (1842)
 Chancery Attachments. Grounds relied on for reversal. A beneficial assignmentto trustees for the use of an absent creditor, is presumed in law and fact to be with liis assent until the contrary appears. ' Whenever it is necessary to record a mortgage or deed of trust, it is necessary to record a power of attorney, if it be made under a power. And the registration acts of 1748 and 1820, seem to. require the recording of mortgages or deeds of trust, either of lands, slaves, money or other personal thing— that of 1837, requiredmortgages of equitable interests to be recorded^ArgM. A power not legallyexecuted as to all the members of a firm, binds only such as to whom it has been legally executed. Circumstances inducing the conclusion that an assignment was fraudulent.
42 Ky. 223Gaines v. Park (1842)
 Pleas and pleading. Mistake. Consideration. Plea in bar is a¡ waiver of plea in» abatement. A plea that the note sued on was given on settlement of notes and accounts, by mistake, as nothing was due-on settlement of accounts, not good. Such plea should state iacts and grounds of mistake, that the court may determine the sufficiency if true.
42 Ky. 224Buford v. McKee's (1842)
 Equity. Devisee. Heir of devisee. ® °sfuba ject a fund in hands’of1” dev£ ®e| forfeited by an fort to obtainsata^pwsonaí.eí tateatlaw. But the equitable io“,ed^r lesa aná >?egligent persuit of .thelegaltemedy, until the personalty is wasted, &c. without profit to the devisee or heir. And a creditor seeking satisfaction of the devisee or heir, after electing to pursue the personal representative alone, is hound to show that he has in good faith exhausted his remedies against the personal estate. The heir of a devisee not responsible in equity, when the personal estate which cameto thehands of the executor, was . sufficient, and was paid over to the husband of the devisee and wasted, and the. estate of the executor was .released by the creditor. The heir of a devisee not responsibiein equityfot a debt of the devisor, when the personal estate was sufficient to pay the debt but suffered to pass into the hands of the husband of the devisee, and be by him wasted. A creditor guilty Of delay, Unaccounted for, in Íiroseculing his egal remedy against an executor, whilst the personal estate passed into the hands of the husband of a devisee who wasted it, and releasing the executor of the debtor from personal responsibility, deniedany remedy in equity against the heir of such devjsee.
42 Ky. 229Smith v. Lewis (1842)
Appeal from the Green Circuit. Covenant. Case 67. The case stated.
42 Ky. 231Franklin Fire Insurance v. Hewitt, Allison, & Co. (1842)
 Equitable jurisdiction. Contract. Policy of Insurance. The object of the bill. Where insurers contractto deliver a policy covering a specific property, and » policybe delivered, though not formally accepted, variant from the contract, and loss occur within the insurance contracted for, a Court of Equity will grant relief to the insured, according to the contract agreed on. Tho’ the insured might be eoncludedby the acceptance, knowingly, of a policy made out varient from contract— yet if it appears that it was ree’d by the clerk and its terms_ not known until the loss occur, an. acceptance will not be inferred nor he concluded thereby.
42 Ky. 242Campbell v. West (1842)
Appeal prom the Fayette Circuit. Chancery. Case 69. The allegations of the hill.
42 Ky. 247Portwood v. Qutton's Adm'r (1842)
Error to. the Madison Circuit-. Chancery, Case 70. The ease stated.
42 Ky. 253Shannon v. Frost (1842)
 Equity Jurisdiction. The case stated bn^and^eoiee Circuit Orderreinstating the injunction by the Chief Justice of Kentucky. Answer. Decree of the Court, on hearing, on bill, answer, &c. The Statute of 1814. The object of the Statute of 1814, was to prescribe a mode for transmitting the legal title to church property, after the death or removal of trustees, to successors, anil to vest the title in them as it had been held by former trustees, with, the qualifications contained in the provisos. The title to real property, of unincorporated bodies, vested in trustees, on their death vests in their heirs. To obviate this state of .case the act of 1814 was passed. A minority of a church in whom title to real property is vested in trustees, have no right, under the Statute of 1814, to elect trustees for the majoilty, especially as a competent number of trustees survived. The Court cannot revise ecclesiastical decisions, butmay decide the right of property and the use thereof. —Nor decide up- \ on the regularity' of an excommu- i nication, but the! fact it may de-i cide. ' A conveyance of Teal property to a Church, vests in each member so long as he ox she shall continue such a bene-^ ficial_ interest' therein. i Excommunicachurch to which £eenerconveyedS have no such intcrsst therein as will authorize tainasuitinrela". tion thereto, Éxcommuniéated Church membeis have no longer any right to vote in the eleelion of trustees. A committe of a Church appointed for that pin-pose, may properly, as parties, litigate the rights of the church before the civil tribunals of the country.
42 Ky. 262Pyke's Administrator v. Clark (1842)
Error to the Bourbon Circuit. Chancery. Case 72. The case stated.
42 Ky. 263Bentley v. White (1842)
 Partners and Partnership. A limited partnership may be formed to buy for a single adventure, (as a drove of stock to a southern market,) which if done, the power ot one partner to bind the other by additional purchases, ceases when the drove is started. A limited partnership is formed to buy a drove of horses and mules for the south’rn market; they are purchased and started with one of the partners, who after going thirty miles on his journey, buys two other horses and executes the partnership note, nothing further appearing, on these facts alone it is error to instruct the jury that both are bound.
42 Ky. 269Mason v. Bascom (1842)
 New trial. Forcible detainer. Restitution. Lapse of time. Where a verdict aside for surprize hadonthemeriís1 & verdict &judgment m favor of the party who cessfuirnothing most commanding reasons this Court to set anew trial.srant The grantee of the reversion may mainlain forcible detainer against the tenant if the lessors could. One holding title to an undivided part may maintainasuitforfor* cible detainer. Though a tenant, against whom a recovery is had in ejectment, need not wait to be turned out, but may taire refuge under the successful party —Yet when the lease is taken after thejudgment, he cannot then a Horn to any other than his landlord. By the 1st clause of the 15th section of the statute concerning forcible entry & detainer, (Stat. Law, 730,) one who has been in peacable possession more than 2 years, as tenant, may be guilty of a forcible detainer. —But under the latter clause of said section, restitution cannot be awarded after the lapse of two years nextbefor.e the finding of the inquisition — except in cases of tenants holding over, after the expiration of their leases, or the will of landlord. Tit* landlord Í3 barred of bis writ of forcible eniry or detainer after 2 years adverse holding over by his tenant.
42 Ky. 277Knight v. Donahoo's heirs (1842)
 Competency of Witnesses.. Limitation of a Chattel. The widow was compelent,as between theadministrator of her second husband & her children by thefirsthusband, to prove that her father gave her the slavesin contest for life, with remainder over to her children. A parol gift of a slave for life, with remainder over to the children of tenant is good,and vests an interest in remainder. A remainder in a slave after an estate for life, is neither void by the statute or common law.— Tho’ to be effectual against creditors or purchasers, should be declared by writing duly recorded, &c.
42 Ky. 289King v. Spearman (1843)
Sheriff’sreturns. Sheriff’s return.
42 Ky. 290Commonwealth ex rel. Long v. Barstow (1843)
 Administrators. Guardians. Relator. Notice. Averments in the decla’tioa, plea, issue and judgment of the Circuit Court. By the statute of 1797, “The estate of a guardian, not undef a specific lien, shall, after his death, be liable for whatsoever may be due from him on account of his guardianship to his ward, before any other debt due from1 such guardian.” By the eomtnoK law, executors and- administra.; tors are to pay debts in this order: debts of record, specialty debts, simple contract debts, but this rule is not absolute. —But, of specialty debts, he is bound from the time of notice, and of the' existence of debts of record in the county of decedents death, or ■where he had recently resided, he is presumed to have knowledge. Éxecutors and adm’rs are bound to take notice of debtsdueby their testator or intestate, as administrators or guardians, where the qualification in that character was in the same county with their administration. The assignee of a decree rendered in favor of a ward against the administrator of his guardian may sustain a suit as relator on the ad-m’rs bond — The Com’hh is technically plaintiff, the use is to the relator.
42 Ky. 295Smith v. Smith (1843)
Error to the Washington Circuit. Replevin. Case 78. The case stated.
42 Ky. 297Lee & Hayden v. Wathen & Spaulding (1843)
Appeal from the Marion Circuit. Chancery» Case 79. The case stated.
42 Ky. 299Coulter v. Bank of the Commonwealth (1843)
 Sheriffs. Deputy Sheriff. Demand. Under 22d seo. of the execution law, (Stat. Law,’ 648,) it is suffieientthatthe money'collected by a deputy Sheriff be demanded of the deputy,to authorize a suit against the principal and sureties, and not necessary to demand it of principal.
42 Ky. 300Rout v. Mountjoy (1843)
Error to- the Anherson CouftiY; Court. ÍriVaíb PASS-WAYS’, Case 81. toe ease stated,
42 Ky. 302Ferguson v. Williams (1843)
Error to the Montgomery Circuit. Replevin. Case 82. The case stated.
42 Ky. 305McAfee v. Commonwealth (1843)
Error to the Mercer Circuit. Inquisition [ of Lunacy. |. Case 83. The facts of the case.
42 Ky. 307Robertson v. Morgans Administrators (1843)
 Bond of indemnity. Measure of damages. Whena covenant is made to indemnify against a debt or duty which may accrue in future,a liability to suit is a breach, and the recovery may be to the extent ofthe debt or duty to which the indemnity applies. The administrators of a Sheriff, where the sureties of the intestate have been compelled to pay moneyfor the default of the deputy, may sustain an action on the bond of the' deputy, which covenants to perform. all the duties of deputy ¡Sheriff and save the principal harmless.
42 Ky. 311Henry v. Sennett (1843)
Error to the Mason Circuit. Trespass. Case 85. The case stated.
42 Ky. 313Penny v. Davis (1843)
Error to the Anderson Circuit. Detinue. Case 86. The ease stated,
42 Ky. 316Taylor's Executors v. Gibbs (1843)
Error to the Madison Circuit. Chancery. Case 87. The- case stated.
42 Ky. 319Rule v. Hayden (1843)
Error to the Floyd Circuit. Debt.' ' Case 88. The case stated!
42 Ky. 320Bowmans v. Mize (1843)
Error to the Estill Circuit. Pet. & Sum. Case 89. The case stated.
42 Ky. 321Kennedy's Adm'rs v. Conn's Adm'r (1843)
Error to the Garrard Circuit. Chancery. Case 90. The case stated.
42 Ky. 325Basset & Haydon v. Bowmar (1843)
 Executions. Return. -Sheriff. Statutes which are penal in their character should be strictly construed, and the evidencetomake out .the case, whereby the penalty is to be enforced, strictly scrutinized. Execution must be returned by the Sheriff within one month, “without good cause” intervene — must not arise from negligence' or be intentional. The case of Waring vs Thomas, (1 Litt. 253,) and Boss vs Thomas, (1 J. J. Mar. 600) and Danforlh vs Oglesby, (MSS opinion, Spring term, 1842,) cited and examined. If the failure to return an execution by the Sheriff arise by such' casualties, inadvertences, mistakes or omissions, as men of ordinary prudeneearesubject to, and there has been no improper motive in the officer, a “good canse” is made out — reasons for this rule. It is not the object of this statute to authorize or encourage creditors to make the debts due from insolvents, by taking advantage of the inadvertences of officers. Circumstances in the proof in this case calculated to put the Sheriff off his guard, and furnish good excuse for the failure to return the execution. Opinion of the Court and mandate.
42 Ky. 334Carter v. Justices of Carter County Court (1843)
 Jurisdiction of County Courts. Collectors bond. Motions. The County Ct. have jurisdiction to render judgments againstdefaulting creditors and their sureties. Lex ita scripta est. Bonds of collectors of county levies &c. taken payable to the justices of the County Court are valid as statutory bonds, and motions may be made thereon. The bond of a collector of the countylevies,executed in Court, is in effect a quasi recognizance, and the order of Court of its execution counteracts all parol proof of alteration or addition, in the absence of any allegation of fraud.
42 Ky. 339Redding v. Commonwealth (1843)
Error to the Louisville City Court. I'RJOICTMENT. Case 92. The case stated.
42 Ky. 342Haskill v. Commonwealth (1843)
Presentment Error to the Louisville City Court. Case 93. The ease stated,
42 Ky. 344Evans v. Davis (1843)
Error to the Greenup Circuit. Trespass. Case 94. The ease stated.
42 Ky. 347Percefull v. Commonwealth (1843)
 Indictment. Rescous. Trespass. Justification. process from a Justice of the íeace,in a case in which he has jurisdiction, is a justification to the officer levying it; he is not bound to look to the' regularity of its emanation.
42 Ky. 349Alguire v. Commonwealth (1843)
The pleadings to the sci. fa. and judgment of the Court. Plea to a sci. fa, on' a recognizanee to appear in Kenton County, that on the day designated for appearance defendant was arrestedfora felony in Lou isville not good, as performance or excuse fornon-performance. Pleading lo Scire Facias on Recognizances.
42 Ky. 353Proctor v. Mather, Walton & Hollowell (1843)
Assumpsit. Appeal prom the Mason Circuit. Case 97. The case stated,
42 Ky. 355Jamison v. Tudor (1843)
 Motions. Sheriff. Conveyances. One whose land hasbeenregularly sold by execution has no such interest in the regularity of the conveyance of it by the officer as will authorize him to move to quash a deed made therefor. The highest purchaser of land, sold by Sheriff under ft. fa. may transfer his purchase, anda deed from the Sheriff to such transferee will be valid. a conveyance of Deputy0lsherifft raaLbbyPhimafter he ceases to comeC]iighnsherlff- A Sheriff who had, whilst acting as deputy, sold land in the same county, might lawfully convey to the purchaser, or his transferee, upon his knowledge of the sale and payment of the purchase money, & appearing from his own return without certificate of purchase or survey.
42 Ky. 360Orear v. Botts (1843)
Frauds — Statute of. Parol leases and sales. Assumpsit cannot be maintained by a vendee of land by parol, for improv’mtmade, although vendor may have repudiated the contract: Shreve vs Grimes, (4 IJtt. 220.) Chancery will afford the appropriate relief. The same doctrine applies to the case of a parol lease for life.
42 Ky. 360Garnet v. Wimp (1843)
 Attachments. Justification. Although an attachment does not show on its face that the requisite complaint has been made, and that the requisite bond lias been given, it is nevertheless a justificationlo the officer levying it; and to the plaintiffs also, if not causelessly sued out, and if so sued out, case is the remedy.
42 Ky. 362Bixler's Trustee v. Taylor (1843)
Trustees and trusts. Frauds — statute of. See the ease of Penny vs Davis, Trustee, ante, as showing the character of the title of the property in contest. The Chancellor has jurisdiction at the instance of cestui que trust, to enforce the trust, change the trustee, and to compel others who get possession of trust property, knowingly,“.to surrender it.
42 Ky. 363Allison v. Taylor's heirs (1843)
Chancery, Error to the Louisville Chancery Court. Case 102. The object of the blll‘
42 Ky. 375Cloud v. Hughes (1843)
 Awards. Costs. An award in favor of plaintiff, on a reference made by order of Court, which gives damages to the plaintiff, is final, though nothing be said of the costs, they are an incident & should be given to the plain* tiff.
42 Ky. 376Clarkson v. White (1843)
Error to the Pendleton Circuit. Covenant. Case 104.
42 Ky. 377Jones v. Morehead (1843)
Error to the Bracken Circuit. Chancery. Case 105. The case stated-
42 Ky. 387Eckler v. Eckler's Executors (1834)
Error to the Harrison Circuit. Forcible detainer. Case 106. The case stated.
42 Ky. 390Beall v. Cunningham (1834)
 Wills. Codicils. The facts appearing in the case. A codicil is a part of the will to which it is attached or refers, and both must he taken and construed together, as one instrument, and when executed with the necessary solemnities of a will to pass lands is a republication of the will, and will jiass lands acquired after the date of the will, but before the dale of the codicil. A codicil duly executed and attached or refering to a paper, which before never was duly signed and published and attested as a will, will have the effect of giving operation to the whole as one will.
42 Ky. 395Holloway v. Conner's heirs (1843)
 Remainders. Husband and wife. Execution. A remainder in slaves, ’tho vested in the wife before coverture, does not vest in the husbanduntil reduced to possession, & where the remainder is held in conjunction with others and no separate possession, but a suit pending for division, they are not liable to sale under execution for the debts of the husband. But if a sale be made of a vested interest in remainder in the wife, (beforepossession by the husband,) to satisfy his debts, the purchaser will not be permitted by the Chancellor to taire the possession until the wife be suitablyprovidedfor. When a suit is pending by husband & wife, for property claimed through the wife, if the husband die the wife is entitled, as survivor, and a purchaser of the interest of the husband, during the pendency of the suit, if the husband die before its termination, acquires no thing. —But the Chancellor will allow a credit for the purchase money, to be a set-off against her where the purchaser had the posses.sion.
42 Ky. 401Proctor's Trustees v. Wadesworth (1843)
Error to the Mason Circuit. Replevin. Case 108. The case stated.
42 Ky. 404Webb & Harris v. Holmes (1843)
 Conveyances. Remainders. Those who are not parties t&a deed can take no present interest under it, nor maintain any snii upon it. O. conveyed to liis daughter, S. T. then a feme covert, and her husband F. T. “a certain dower in lands for the entire benefit of her and his children, to her and her children forever” — held it was a conveyance to the daughter for life, and the remainder to her children, as well those born after as those born before the date of pie deed.
42 Ky. 407Moore's v. Green's Adm'r (1843)
■Error to the Harrison Circuit. Chancery. Case .110.
42 Ky. 414Johnson v. Lyle's Administrator (1843)
Error to the Scott Circuit. Debt. Case 111.
42 Ky. 414Lail v. Coram & Co. (1843)
Error to the Harrison Circuit. Pet. & Sum. Case 112. The case slated.
42 Ky. 417Lilley v. Evans (1843)
Obligations — joint and several. Presumptions. Onus probandi. Headings, A note in form joint and several, signed by one & delivered to obligee, and after-wards assigned and falls dn e, and is signed by a second obligpr, the presumption from the form of the note is that it was so intended by the parties. To authorize the first signer to avoid the note lie must show an actual dissent, or circumstances equivalent, to the signing of the second obligor.— The form of the note (“we or either of us,”) implies an authority to obtain an additional obligor, which would pass to the assignee. A note is presumed to be upon good .consideration, & proof to the contrary-lies on the def’t, and the mere fact that a joint and several note is assigned, and after it becomes due, is signed by another,does not prove that there was no consideration as to the last obligor.
42 Ky. 420Gant v. Shelton (1843)
 Fraud. Rescission of contracts. Practice. A motion' for a' new trial may be made at any time during the term at which the verdict is rendered, in the absence of any established rule of Court to the contrary. The parties are not precluded from excepting to opinions of the Court, given in the progress of a trial, ’tho these exceptions may not have been taken or mentioned at the moment when given. Instructions given by Circuit Ct. An agreement by parol to rescind a contract for the purchase of personal property, is binding, as a contract of purchase, -without actual delivery in the one case or re-delivery in .the other. A retain of property purchased, where there has been a fraud in the sale, to be effectual to operate a rescission of the contract, must be in a reasonable time after the discovery of the fraud. ’Tho there may be a defect apparent in property sold, yet if the character of that defect is misrepresented, it is fraudulent.
42 Ky. 424Partlow v. Lane (1843)
Error to the Meade Circuit. Chancery. Case 115. The case stated.
42 Ky. 429Johnson v. Norton (1843)
Ejectment, Appeal from the Fayette Circuit. Case 116.
42 Ky. 432McKee v. Buford (1843)
Appeal from the Woodford Circuit. Chancery. Case 117. The case stated anddecreeoiGircuit Court.
42 Ky. 437Trustees of Augusta v. Perkins (1843)
Appeal From the Bracken Circuit. Ejectment. Case 118.
42 Ky. 446Mercer Board of Internal Improvement v. Dougherty (1843)
 Turnpike Roads. Estimates of Superintendents. After the inspection and estimates of the Superintendent and his certificate of the performance of contract by the undertakers, and the road received, the power of the Superintendentis completed and no new award or estimate can affect the rights of the parties.
42 Ky. 449Broadwell v. King (1843)
Error to the Harrison Circuit. Chancery. Case 120.
42 Ky. 453Lewis v. Outton's Administrator (1843)
 Decrees. Liens. The character of a decree ni si & decrees final. When the object of a bill is not merely the ascertainment of a sum claimed by the complainant, but the enforcement of a lien ' in satisfaction thereof (which is contested on the ground of jurisdiction) a decree ascertaining the balance and directing its payment is not final. An -evasive -answer to chaige of usury construed into an admission.
42 Ky. 461Stivers & Page v. Prentice & Weissinger (1843)
Error to the Jefferson Circuit. P1ST. & SUM, Case 122. The case staLed,
42 Ky. 464Bonner v. Coleman (1843)
Replevin. Verdicts and judgments. Pleading.. No judgment de retorno Jiabendo can be rendered when the plea of non cepit alone is relied on. To authorize such judgment, the defendant must become actor and assert a right of property in himself.
42 Ky. 465Needhams v. Page (1843)
 Blank assignments. Guaranty. A blank indorsement on a promissory note or negotiable instrument, is an authority for the holder to write on it an ordinary assignment to pass the title to the note, but not to write over it a guaranty.
42 Ky. 467Wilson v. Ayres (1843)
Error to the Jefferson Circuit. Covenant. Case 125.
42 Ky. 468Neff v. Baden (1843)
 Covenants. Parties. ^agenfof e?1s a'covenant to s. sue.
42 Ky. 469Hibbitt v. Spurrier (1843)
 Execution sale. Equity of redemption. Right of redemption. The light of redemption after the sale of the equity oí redemption of mortgagor is a transferable equity, and a creditor causing a levy of execution thereon and a sale thereof, and buying himself,knowing all the facts, will not be allowed to quash such sale.
42 Ky. 471Kleissendorff v. Fore (1843)
 Executions. Atnendmenis. Clerical misprisions are at all times amendable if there be any thing by which to amend, subject however to such rules as will not affect the interest of third persons, or make the record speak falsely with regard to extrinsic facts of which it is to bear witness‘ Qd. — if an exeaUtjudgmentlbas Src/fd which was in fact rendered in April, xvouid the Court quash.hata ^saie made under it? ■Sheriff is not bound to know that there is a judgment on which an execution issued — the execution is his authority and justification fox acting. The defendant in nn execution is not prohibited by an amendment made in the execution, from showingextianeous facts which the amendment may be intended to obviate.
42 Ky. 475Maxey & Son v. Fore (1843)
Error to the Jefferson Circuit. Assumpsit. Case 129. The case stated.
42 Ky. 478Town of Bowlinggreen v. Hobson (1843)
Error to the Warren Circuit. Chancery. Case 130.
42 Ky. 482Hart v. Thompson's Adm'r (1843)
APPEAL FROM TUE MADISON CIRCUIT. CHANCERY. Case 131. Allegations of bill and answer,
42 Ky. 490Allen & Gardner v. Summers & Waggener (1843)
Error to the Hart Circuit. Ejectment. Case 132. The case stated.
42 Ky. 493Logan, Todd, & Christian Turnpike Road Co. v. Glass (1843)
Appeal prom the Muhlenburg Circuit. Covenant. Case 133. The case Stated.
42 Ky. 502Atcheson v. Smith (1843)
 Attachment. A decree attach" ingandappropriatingfundsinlhe hands of a resident defendant, for a debt due by unknown heirs, in a proceeding against them as such, is a protection to the foimer, unless the proceeding against the latter ie void, and in case of a reversal by suchheirs, theii remedy will be against the attaching creditor. A valid decree (though reversible against absent defendants or unknown heirs) is a protection to a garnishee against any reclamation of paymentmade before reversal. A garnishee who fundsreein ° his hands heirs, cannot unite such heirs with him in prosofUerror foi'the deoreef °f BUOh The failure of the Court to Require ofrCaTattach°ing creditor, or apfoithe absent deChancery ^proenwTwhfchwiií avail the garnishee m this Court. xt is error to proceed to a decree against absent inownaheirsUat the Gráveme 1C¿ tiled, and of this Bhee maySavail “f m tlliS A decree against a garnishee should provide that he be discharged from the claim of his creditor for the amount paid under a decree in favor of an attaching creditor.
42 Ky. 505Gillispie v. Walker (1843)
Error to the Madison Circuit. Chancery. Case 135.
42 Ky. 508Brown v. Buford (1843)
Appeal from the Nelson Circuit. Debt. Case 136.
42 Ky. 510Ray & Thornton v. Bank of Kentucky (1843)
Error to the Jefferson Circuit. Assumpsit. Case 137 and evidence. The case stated
42 Ky. 516Lexington, Harrodsburg & Perryville Turnpike Road Co. v. McMurtry (1843)
Error to the Jessamine County Court. Ferry case. Case 138.
42 Ky. 519Bank of Kentucky v. Thornsberry (1843)
Appeal from the Jefferson Circuit. Debt. Case 139. The case stated and proof.
42 Ky. 529Voorhies v. Gore (1843)
Appeal from the General Court. Ejectment. Case 140.
42 Ky. 532Holderman's Heirs v. Holderman (1843)
Error to the Green County Court. Assignment of DOWER. Case 141. The ca3e stated.
42 Ky. 534Davidson's v. Nunnallys (1843)
Error to the Edmondson Circuit. Chancery. Case 142. Seed of gift, B. Nunnally &wife to their children.
42 Ky. 544Hope v. Cason (1843)
 Vendor and Vendee. Pleas and pleading. Notice to quit. Practice. When a purchaser by parol contract haspaid the consideration & beenletinto possession, and is in. the enjoyment thereof, and has not renounced thecontract,vendor cannot enter upon him, or maintain an action for the possession, ■without notice to quit. Where a Vendor by parol has no right to enter on his vendee, without giving notice to juit> his entry is a trespass. A replication of apossession in virtue of a parol pin-chase from defendant, is good to the plea of liberum tenementum. A defendant' pleading liberum tenementum ■which is replied to generally, has the burthen of Eroofonhim,and as the right first to introduce this proof and to open and conclude the argument. Where the declaration in trespass quare clausum fregit alledges the trespass in entering the close and the dwelling house of the plaintiff, and defendant pleaded liberum, tenementum, he must confine his proof to the dwelling house of plaintiff, and may not show title in another tenement than the dwelling house of the plaintiff at the time of the alledged trespass. It is only where the count is general, and the plea is liberum tenementum is plead, and issue thereon withouta novel assignment setting out abuttals, that defendant may then show title to and fix the place and confine.the proof to such place.
42 Ky. 550Ford v. Williams (1843)
 Fraudulent conveyances. Debtor and Creditor. The nature of the controversy. Circumstances indicating fraud critically examined. It is not fraudulent for one creditor to buy all his1 debtor’s property at reasonably fair prices, in satisfaction of his demand, although he may know that the consequencéwill be the loss to other creditors of their debts. WTiere there is a real, uuooncjitional transfer by a debtor of his property,™ satisfaction of real debt3, covering its whole value, the law will presume that the creditor acted witha view to his own security; and though tíre debtor may have desired not only to pay the one, butto defeat oth■er creditors, it will notmakethe transfer void for fraud, without other proof of a fraudulent intent by the transferee.— —And the transaction will be equally sustained if a creditor, by Iona fide purchase, without any secret trust for the benefit oí the debtor, in part of the price paid other debts, or give his note for money.— - — Nor will the fact that other transfers of property by mortgages or deeds of trust were made ■atthesametime, partly on good and partly on fictitious considerations, to oth•ers,. conveying -all the debtor’s property, affect ■a valid conveyance for good -consideration, withoutfraud, so far as grantee is 'concerned.
42 Ky. 562Teeter v. Williams (1843)
Appeal prom the Madison Circuit. Chancery. j^Gdse’t
42 Ky. 565Thompson v. Drake's Heirs (1843)
Appeal prom the Fayette Circuit. Chancery. Case 146.
42 Ky. 575Hunt's Heirs v. Hunt (1843)
 Wills. Evidence. Witnesses. Devisees. Opinions of witnesses. His will proved andrecorded' Bill filed to set foVlíLd and incapacity of The auswei of the defendant, .denying, &c. The decision of the jury. Questions for revision. New trial should notbe granted on the ground that the verdict is contrary to evidence unless it be palpably so. Instruotiongiven by the Circuit Court. The opinions of witnesses, as to the competency of a testator to make a will, are not evidence without stating the facts on which these opinions are predicated. It is the facts, more than the opinion of the witness on these facts, that constitutes the evidence. Tlie, opinions of devisee, expressed, before wm^^tperhaps ^“peten”6"to prove the fact of ineompetency in the testator at the time the will is made. ■Whether the opinions of a devisee might not, under particular circumstances, be competent evidence of incapacity in the testator? Undecided.
42 Ky. 579Oldham v. Scrivener (1843)
 Attachments. Execution. Real and personal property. Upon the levy of an attachment upon goods by one officer, anotherofficer cannot take the possession: but real estate attached may be levied upon and sold nnderexecution, but the officer selling cannot take dr deliver the possession lo the purchaser,by the attachment; the Chancellor acquires a control which overreaches any subsequent sale, so far as is necessary to satisfy the attachmentcredilor’s debt, but nor further..
42 Ky. 581Turnham v. Turnham (1843)
Error to the Shelby Circuit. Chancery, Case Í51. The case stated.
42 Ky. 584Clark v. Prentice & Weissinger (1843)
 Assignor and assignee. Diligence. An amendment to Pet. & Sum. by plaintiffs, by adding the words ‘ox order,’ which had been omitted in setting out an assignment, constitutes no ground fox a continuance. The steps taken by assignee to recover of the -debtor. It has never been held “that the •assignee was bound to use the utmost possible diligence, to run a race against time or to use greater diligence than a man of ordinary prudence might be expected to use if he .were solely interested,” to recover the debt, in order to preserve his recourse against his assignor. When the debtor is in laboring circumstances, and the loss of a day or an hour might be material to successin the recovery of the debt, the vigilance of the assignee should be greater.-— ' —But in a ease where the debtor is notoriously insolvent, there exists no reason'for Increasing Ihe diligence required by the former decisions of this Court. The case of Trimble vs Webb <1 Monroe,) cited. The case of Pass-more vs Prather. (9 Dana, 57,) & SayrevsBayless, (1 B. Monroe, ¿04,) died. A memorandum by plaintiff’s attorney, on the Clerk’s memorandum book, to issue executions in all eases in -which he is concerned as soon as due; and that the Clerk did, as soon as the business of his office wouldpermil, issue the execution, and place it in a box in his office, where it was the practice to place all process going into the Sheriff’s hands,and where the Sheriff was daily in the habit of calling and receiving process, and from which he did receive the execution, is reasonable diligence by the assignee in this case and in cases ordinarily.
42 Ky. 592Brown v. Mattingly (1843)
Error to the Nelson Circuit. Appeal. Case 153.
42 Ky. 594Fauntleroy's Heirs v. Dunn (1843)
Error to the Garrard Circuit. Ejectment. Case 154.
42 Ky. 619Drane v. Gregory's Heirs (1843)
 .■Ejectment. Joint tenants. Partition. Limitation. Adverse possession. Evidence. One who receives a conveyance from husband and wife of lands,theproperty of the wife, & enters and holds under that title, (which conveyance is ineffectual to pass the estate of the wife,) cannot after the death of the wife deny the title of the heir of the wife in a suit brought by such heir to recover possession.— —And it is not error for the Court in such caseto refuse, on defendant’s .motion, to exclude such deeds of conveyance from the jury. They were properly before the jury to show the character of the defendant’s entry and holding. A deed from the husband & wife, conveying all the lands in the Commonwealth of Kentucky and Virginia to which thegrantorswere entitled, under a certain will * ‘which they had not heretofore sold and conveyed.,” does not embrace,by such terms, lands which they had sold and conveyed but by deed, which was ineffectual to pass the wife’s right of inheritance. The finding of the jury was authorized by the evidence. The suit was commenced before the limitation operated. Where there is a severance in fact of a joint tenancy and possession held for 20 years, according to such division, the title will be a title in severalty to the ■extent of such' separate possession. One who enters as tenant under aparticular title, though he may acquire a better title, cannot avail himself of such better title against the title under which he has entered. Adivisionofland between joint tenants, made thro’ the agency of the Commissioners of the County Court, tho’ it may have been irregular, mayneverlheless be competent to show that a partition was in fact made, and the boundary thereof.
42 Ky. 629Breckinridge v. Moore (1843)
 Vendor and, vendee. Champerty. Bills of exchange. Comity. The Answers of Steele & Moore. Amended answers. Decree of the Circuit Court. Questions for consideration. Avendoris bound to disclose to his vendee all material facts in his knowledge in relation to the thing sold; failing to do so or in misrepresenting, he is guilty of fraud. A bond given as the consideration of land, adversely held at the time of sale, is not collectable, being against the law made to prevent champerty. Law of Tennessee in regard to notes payable ‘to order.’ To make a bill of exchange, which was obtained fraudulently, binding on the drawer in the hands of a purchaser, it must appear to have been obtained in the ordinary course of business, “upon some present consideration, paid in money or property, some subsisting debt satisfied,or some responsibility incurred in consequence of the transfer.” Contracts for the sale of land in Kentucky, tho’ taking place in another state, are governed by the laws of Kentucky, especially when by the courts of Kentucky the consideration is sought to be recovered. A purchaser of land, adversely held, not knowing of such adversary holding is not in pari delicto.
42 Ky. 645Weir v. Weir's Administrator (1843)
 ExecvAors and Administrators. Trustees. Interest. Assumpsit for work and labor. Where an adm’r. took possession of a manufacturing establishment of his intestate, materials, cash, outstanding debts, &e. and 'carried on the establishment — held that he shall account to the distributees for interest on the fund so employed for his own purposes.— • — Gommenein g in this canse under its particular eircumsta nces, 12 months from the qualification of the adm’r. There is no implied assumpsit to pay for work and labor, where the conduct,situation and mutual relation of the parties does not show that it would be just. 'The defendants, young men and foreigners, came to the U. S. without means, and entered into the employ and business of their uncle, a wealthy old batchelor, •without any contract for compensation,and so continued until his death,and inherited, by descent, his real & a part of his personal estate, greatly exceeding a reasonable compensation— held that no contract for compensation is implied, but the reverse. A legacy to a creditor, equal to the amount ofan existing debt, is sometimes considered in satisfaction thereof. Provisions by will in favor of those for whom a testator is under obligation to provide portions, sometimes considered in satisfaction of such obligation.