Volume 43 — Kentucky Reports

<p>Error to the Mason Circuit.</p> <p> Gaming. Elections. </p>

<p>Indictment. Case 2.</p> <p>The case stated.</p> <p>One who keeps a covering horse or Jack, iox hire, though he be not the owner, is liable to a fine and tripple tax for so doing.</p>

<p>Error to the Green Circuit.</p> <p> Tippling houses. </p>

<p>Error to the Jefferson Circuit.</p> <p> Replevin. Pleas and pleading. </p>

<p>Indictment. Case 5.</p> <p>The case stated,</p> <p>One who rents a house rvhioh is, during the time of the lease, used as a bawdy house, is not responsible unless it was rented with a knowledge of the purpose for which it was used.</p> <p>Under an indictment for keeping a disorderly house, the particular acts should be specified, and none other which in themselves constitute indictable offences can be proved, but such only as aggravate those specified.</p> <p>An indictment for keeping a disorderly house generally, without specifying particular acts, is not good. The Chancellor's decree.</p>

<p>Appeal prom the Louisville Chancery Court.</p> <p> Evidence. Assignor and' Assignee. </p>

<p>Error to the Jefferson Circuit.</p> <p> Amendment. Practice. Evidence. </p>

<p>Ejectment. Case 8.</p>

<p>Error to the Fayette Circuit.</p> <p>Wills. Devises — construction of.</p>

<p>Error to the Jefferson Circuit.</p> <p> Parties in actions at Law. Confusion of parties. </p>

<p>Appeal. Case 11.</p> <p>The case stated.</p> <p>When a suit has been regularly-commenced on a note or bond, and judgment for plaintiff and appeal by defendant to Circuit Court, & the note lost, parol evidence may be heard of its contents and judgment rendered.</p> <p>The privilege to sell clocks under a license from the Clerk of a County G’t, is an individual and personal privilege, and is not to be conferred on a plurality of persons for one tax of ten dollars.</p>

<p>Chancery. Case 6.</p> <p>The case staled.</p> <p>Answers and traverse.</p> <p>Decree of the Circuit Court.</p> <p>Errors assígaeí.</p> <p>Juniormortgagee is not permitted to redeem, but upon payment of principal, interestand costs,and charges, ordinary and extraordinary, where pri- or mortgagee had not notice of junior mortgage:— Lomax vs Hide; Liggett vs Edwards, (Hop. Ch Rep. 550.)</p> <p>It is not error to refuse to continue a chancery causeonaccount of the absence of one. of two counsel.</p> <p>This Court will notinterfeTewith the discretion of the Gt. Courts in the rigid exercise of their discretion, in the preparation of causes, if there be no palpable abuse of legal discretion.</p> <p>Has a junior morlgageeariglit to redeem after a decree and sale under a senior mortgage, the second mortgage being unknown to the first mortgagee?— Qu.</p> <p>The highest sanction should be given to judicial sales. Confidence of the communityin the acts of judicial tribunals is for the benefit of both debtor and creditor.</p> <p>Though a junior mortgagee maybe a proper and necessary party, if known to the senior mortgagee in his suit for a foreclosure and sale, it does not follow that if he be not known, and a decree of foreclosure and sale be made, that an innocent purchaser should be deprived of the benefit of his purchase.</p>

<p>Pass-ways. Case 13,</p> <p>Case stated.</p> <p>The statute of 1820, authorizing the County Court to establish private pass-ways, contemplates ajustoompensation to the owner of the land through which they pass, and pannotbe established unless by consent of the owner, without such compensation.</p> <p>—And an inquisition by jury under a writ of ad piad damnum is the appropriate mode of ascertaining the am’t of damages.—</p> <p>—And the Court are, after the report of viewers and inquisition, to determine the propriety of establishing the pass-way, as in cases of public roads; and the parties may offer, and the Court hear competent eyidenoe on the necessity and propriety of giving the pass-way, before or' after the return of the inquisitor.</p> <p>One having no-vested interest in land, nor no interest in damage to be assessed, on opening a private pass-way, is a competent witness for those opposing, though hemayhavebeen notified.</p>

<p>Chancery. Case 14.</p> <p>Case staled.</p> <p>If there be mutual accounts between builder & mechanic, and there be no balance due to the mechanic at the filing of the bill, he can have no relief, especially against an innocent purchase? of the property.</p> <p>A conveyance of property to a Trustee to secure the payment of a sum due to a mechanic in Louisville for which he has a lien, which was not accepted, does not affect the lien.</p> <p>The taking a note by a mechanic in Louisville for a debt for which he has a lien, and the negotiation of that note at Bank, does not Telease the lien, if payee is compelled to take up the note provided he file his bill within the year to enforce the lien.</p> <p>The assignment mechanic6 7of which^aiien exists, does not destroy that lien.</p>

<p>Detinue. Case 15.</p> <p>The case stated.</p> <p>If a sale of a slave to A and a bill of sale toB, andB devise the slave to a Trustee for'the use of A for life, remainder 'to 0, all ■with the intent to delay the creditors of A, it is fraudulent as to the creditors of A, and C takes nothing by the devise.—</p> <p>—Andsuchslave will be assets in the hands of B’s executor for the payment of B’s debts.—</p> <p>—And if the executor sell, for the payment of a debt due by B, and afterwards repurchase, he is protected by all the rights of the (Creditors of B.</p> <p>It is not necessary that an executor shall wait for a judgment to be had against him for a debt justly due, to make valid the title of a purchaser of property sold to satisfy such debt.</p> <p>Property fraudulently conveyed, is, nevertheless, assets in the hands of executors, and if appropriated to the paym’tof debts, it is a good answer to the demand of the do-nee or devisee in an action therefor.</p>

<p>Chancery. Case 16.</p> <p>The decree heretofore made by this Court, {see 5 Dana, 70,) and subsequent proceedings.</p> <p>Decree of Circuit Court.</p> <p>An_ executorclaiming credits for_ debts lost his own ereationf should show that the debts were suchas a prumanagement Ms own affairs, wouldhavemade —and that reasonable & timely,exertions had been used to coiled.</p> <p>—And as to claims due the testator at his death, he must show the use of reasonable diligence to collect.</p> <p>An executor who is sued for distribution, may properly be made responsible for interest on the fund found in his hands for distribution, even after suit brought, unless he bring the money into Court when he answers, or especially where he does not show a readiness to pay when sued, and that the fond has ceased to be productive.</p> <p>It is “ot necessary for the court to send back a to^whereaiuiie eT^ndtheTourt can, trom the facts, do justice between the parties'</p> <p>Interest Against may properiybe given from the coming in of the Auditor's report ascertaining the balance against him.</p>

<p>Error to the Louisville Chancery Court.</p> <p> Mechanics’ lien in Louisville. </p>

<p>Covenant. Case 18.</p> <p>The ease stated,</p> <p>Though the ta-lumber, &c. furing^&c^Louisviiie, is not a •wat-ve or loss ot Hen on the build- and transferSaof othern°anyt0 forfeiture, if it is fs° nPeo’essaryt to thaUtoMtewas giTOn by way of debt for which a and the süenoe ?o a°suit claim-the^same^ro011 erty does not amount to such</p>

<p>Error to the Jefferson Circuit.</p> <p> Banking associations. Depositions. </p>

<p>Error to the Anderson Circuit.</p> <p> Replevin. Exempted property. </p>

<p>Motion. Case 21.</p> <p>Paymasters of regiments may maintain motions against collector of fines, for failing to settle and pay over fines collected by such collector, crediting the commissions & snch fines as were notcollectable.</p> <p>—But where the notice charges a failure to collect, there can be no recovery by motion; the remedy is by suit on the bond.</p>

<p>Error to the Anderson County Court.</p> <p> •Motions. County Creditors. </p>

<p>Appeal prom the Jefferson Circuit..</p> <p> Attachment in Chancery. Interlocutory order. </p>

<p>Error to the Marion Circuit.</p> <p> Constables’ counter security. Bonds of indemnity. </p>

<p>Ejectment. Case 25.</p> <p>Case stated.</p> <p>The statute of 1822 repealed all laws authorizing the sale of residents’ lands for taxes — its object and policy.</p> <p>The agenis of the Auditor,appointed for that purpose, are not authorized to sell the land of residents for the taxes, &c. due, until tbeymalte diligent search for the former owners, their heirs or assigns, or those in pesse3sion of the land, and if found, to offer to each, in the order prescribed in the act, the privilege to redeem or repurchase.—</p> <p>—And as he is not a public offleer, and takes fnasuRby^purl chaser against the occupant, the fact that he requ?sitionsd madíto 'appear6</p>

<p>Error to the Louisville Chancery Court,</p> <p> Attachment. Parties. Proceedings in rem. </p>

<p>Chancery. Case 27.</p> <p>Service of process on one of several partners, is not equivalent to service on all.</p> <p>The Court may require the Complainant to bring the defendants before the Court in reasonable time or dismiss his suit.</p>

<p>Debt. Case 28.</p> <p>(The case stated.</p> <p>One who h’ótcls property under color of afraudulent gift or sale from a p’erson who dies, may be sued as executor de son tort, wherever found with the property in possession.</p> <p>Talcing-possession by agent in another Slate, does not change the case if the property be held here.</p> <p>Though there may be a duly-qualified executor or administrator in another State, yet ifproperty of a decedentbewrongfully held here by one, such an one is liable here ns executor de son tort to creditors.</p>

<p>Error to the Franklin Circuit.</p> <p> Common Schools. Collectors. Warrants. </p>

<p>Chancery, Case 30.</p> <p>Case stated.</p> <p>The case of Ducker & Jones Vs Gray, (3 J. J. Mar. 163,) reviewed.</p> <p>A vendor who' has not conveyed, does not waive his lien by talcing personal security, & may assert such lien When the personal security proves unavailing, if not beiore.</p> <p>The question of Waiver is one of intention; Story Eq. 470, et seq.</p> <p>A surety for the payment pf the consideration of land sold who has paid the price, but who took a mortgage from his principalonotherproperty for his indemnity, & which proved insufficient, will not be subrogated to the original lien of vendor, to the prejudice of a purchaser of vendee, especially when the purchase was made with his knowledge and not objected to.</p> <p>It is not always the case, that where vendee may enforce his lien, that a surety of vendee for the price who pays it, will be substituted to the lien.</p> <p>This case distinguished from thejjase of Burk et al, ys Chris-man et al. (S B. Monroe, 50.)</p>

<p>Error to the Boowe Circuit.</p> <p> Executors. Pleas and pleading. Judgment. </p>

<p>Appeal from the Madison Circuit.</p> <p> Execution. Sale of mortgaged properly. Parties. </p>

<p>Error to the Lexihgton City Court.</p> <p> Lexington. Powers of corporation. Penal proceedings. </p>

<p>Chancery. Case 35.</p> <p>Case stated.</p> <p>The question made of fraud on the part of plaintiff in error, in the sale, discussed and found to he unsupported.</p> <p>A cestui quetrust provides by will lor the payment, by executor, of “ail just debts or all just claims for which. my estate is legally;liable,’’embraces a debt due by the bond of cestui que trust, for the purchase of a lease-hold estate in which the Trustee held the lee, tho’ the purchase was made by cestui qué trust and Trustee while cestui que trust was a feme covert,,</p>

<p>Error to the Fayette Circuit.</p> <p> Partnership. Evidence. Auditor’s Report. </p>

<p>Covenant. Case 37.</p> <p>Case staled.</p> <p>Amount claimed by plaintiffs, the insured.</p> <p>Where the Warranty in a policy is to indemnify against average loss, the insurers are liable for general average loss, however small.</p> <p>General average defined.</p> <p>Particular average defined.</p> <p>All the expenses attending a loss enter into the question whether it be a general or par. ticular average loss.</p> <p>Expenses incurred in raising a vessel, placing her in a condition for repair and re-paring her, fall Under the denomination of particular average.</p> <p>If unloading is necessary to the raising a vessel for repair, the expense is general average. But if the cargo is unloaded, merely for its own benefit, it is not a general average charge.</p> <p>Expenses incurred in raising, removing and repairing a steam, boat which had sunk, with only a few thousand pounds of wool on board, was a particular average loss, and with any part of which the cargo was not .chargeable.</p> <p>All expenses incurred by the insured in doing that which it is his duty to do for the benefit of the insurers, is properly due and to be refunded to the insured; wages of crew and provisions, &c. may enter into this amount.</p> <p>Is the whole amount of the expenses of repairing a steam boat snagged, to be borne by the insurers, or only two-thirds as the rule is in respect to sea vessels repaired?— Query,</p>

<p>Appeal from the Louisville Chancery Court.</p> <p> Corporations. Ckoses in action. Mistake. Trusts and Trustees. </p>

<p>Error to the Fleming Circuit.</p> <p>Warranty. Sale of chattels. Limitation,</p>

<p>Error to the Greenup Circuit.</p> <p> Pleading in actions of law. Abatement.. Bar. </p>

<p>Trespass. Case 41.</p> <p>Case stated.</p> <p>The report of the division of counties into school districts should be filed for record with the County Ct. Cleric, as required by the statute, otherwise the organization is incomplete and no authority is conferred on Trustees to enforce the collection of taxes.</p> <p>Such report should designate the boundaries with such certainty, by actual survey or otherwise, as to show who were entitled to vote in the adoption of the system.</p> <p>It was no abuse of the discretion of the Circuit Court to permit the plaintiff to amend his demise, by striking out one number of acres and inserting a greater, as no injury resulted to the defendant therefrom.</p> <p>A sale of ISO acres, part of a tract of 600, by an officer under execution, without other designation, is void for uncertainty.</p> <p>A division of land by County Court Commissioners must, to be bind» ing, appear to have been made at the instance and between those who were interested, and not of part of a tract only.</p> <p>The judgment in ejectment should conform to the verdict of the jury.</p>

<p>.Appeal from the General, Court.</p> <p> Ejectment. Amendments. Division of Lands. Sale of land under execution. Judgment. </p>

<p>Appeal prom the Fayette Circuit.</p> <p> Fraud. Marital rights. Dower. </p>

<p>Error to the Mason Circuit.</p> <p>Slaves. Reversion. Limilation.</p>

<p>Error to the Spencer Circuit.</p> <p> Incompatible offices. Officers de jure and defacto. </p>

<p>Error to the Madison Circuit.</p> <p> Reversion. Husband and wife. Settlement. Equity. </p>

<p>Error to the Bourbon Circuit.</p> <p> Sheriffs. Executions. Replevin. </p>

<p>Chancery. Case 48.</p> <p>An equitable lien existing by Written agreement, with a surety fot the payment of the consideration of land purchased, though not recorded, will not be overreached by an attaching creditor who has notice of that equitable lien.</p>

<p>Chancery. Case 49.</p> <p>Case stated,</p> <p>Decree of Uxe Circuit Court.</p> <p>Questions arising on the case.</p> <p>Where a will authorizes a sale and conveyance by executors, of real estate fox particular purposes, and equal division amongst heirs, the husband of one of the heirs, who receives a conveyance to himself in fee, on no other consideration than the interest of the wife and with aitnowledge of the powers of the executor, is a Trustee for the benefit of the wife.</p> <p>The construction of I. Talbott’s will bearing on this case.</p> <p>Where there is no absolute or direct indication on the part of the testator, that lands be converted into money, and the proceeds distributed as money, and the husband of the devisee, andheir of the testator, receive a conveyance in fee on no other consideration than the interest of the wife in the landed estate of the testator, the husband will hold as Trustee for the wife.</p> <p>“The doctrine of equitable conversión is extremely artificial,” and is not applied by the Chancellor to change the quality of property as the testator has left it, without a clear indication manifested to give it character as money or land</p> <p>At law the husband as a legatee of money to be raised out of land, has an interest in the money, cannot regard the land as money, and as a legacy in money.—</p> <p>—And a legacy to be paid in money By the sale of land, is irotlpayable until the land is sold.</p> <p>The Chancellor will not aid the husband to reduce to possession the chose in action of the wife without regarding the interest of the wife and securing asettlement if she need it. Though land be directed to be s.old and the money paid to the devisee, a feme covert, the husband of the devisee may not take'á conveyance of lands, and thereby deprive tb.p wife of her interest therein.</p>

<p>Case. Case 50.</p> <p>Case stated.</p> <p>The miaigiii o'í the river oa which the town of Columbus was laid, out being reservedasapublio common or highway fof the benefit of holders of lots on the river and in the town, any. exclusive right to the use thereof did not pass by Legislative grant to an individual, but remained in the Trustees of the town for the purposes of its original dedication.</p>

<p>Error to the Fayette Circuit.</p> <p> Practice in chancery. Absent defendants. Bonds of indemnity. </p>

<p>Chancery. Case 52.</p> <p>The undertaking j£ee¿angf^do’f the river expertges of re-shipl pointf“iii n,ot autllonz® a the point desig. ^Tenf, and ift^e" af^haVpo^nt0* will be responsiWe'</p> <p>would We been £? such case. But if the carrier bad been in the discharge of his duty and undertaking, there</p> <p>Where the consignee refused to receive damaged goods of the carrier and he sell them, he shall account to the consignor or owner for so muchas will indemnify him and not paid by insurer.</p>

<p>Chancery. Case 53.</p> <p>Case stated.</p> <p>When a party has a suit at law and in chancery, both pending in relation to the same matter, and he be required by the Chancellor to elect in which he will proceed, and refuse, a dismissal of the chancery proceeding should, bfe without prejudice not absolutely.</p> <p>The general rule is, that a party will not be permitted to proceed at law and in chancery when the subject matter is the same in each suit, but it is subject to many exceptions.</p> <p>Though the same propeity may be pursued both at law and in ch’y-the court will not put the party to his election if some of the facts on which the right depends be more pioperly triable at law, and others more properly triable in chancery; and “where the recovery sought be upon different grounds, both of which are not appropriately, if at all cognizable in either ease.’’</p>

<p>Error to the Bourbon Circuit.</p> <p> Assignor and Assignee. </p>

<p>Error to the Louisville Chancery Court.</p> <p> Presumptions. Evidence. </p>

<p>Appeal from the Louisville Chancery Court.</p> <p> Fraudulent conveyances. Trustees and Trusts. </p>

<p>Error to the Jefferson Circuit.</p> <p> Pleas and pleading. Constables. </p>

<p>Chancery. Case 58.</p> <p>Case stated.</p> <p>To render executors liable, do ionispropriis, it must appear that they have acted in bad faith, or been guilty of fraud or gross negligence.</p> <p>It is the duty of mortgagor, seeking a redemption, to bring a subsequent incumbían cer, claiming under mortgagee, before the Court, if known.</p> <p>The statute of 1811, (1 Statute Law, 672,) applies to proceedings in chancery against executors and administrators as to actions at law: (2 J. J. Mar. 208-9.)</p> <p>Mortgagees are purchasers to the extent of the sum due upon the mortgage.</p>

<p>Error to the Jessamine Circuit.</p> <p> Guardian. Interest. Husband and wife, Release, </p>

<p>Error to the Louisville Chancery Court.</p> <p> Principal and Agents. Surety. </p>

<p>Error to the Woodford County Court.</p> <p> Rights to Administrations. </p>

<p>Error to the Ballard Circuit.</p> <p> Retailing Spirits. </p>

<p>Covenant. Case 64.</p> <p>Case stated.</p> <p>The requisites of the statute in regard to the proper conditions prescribed in a supersedeas bond may aid in giving construction to the terms used where they are dubious and admit of construction.</p> <p>A covenant in. a supersedeas bond to pay the judgment “and all such damages and costs In case said appeal or writ of error shall be dismissed or the judgment of the C’t belowaffirmed,” construed to embrace the damages and costs given onaffirmanoe.</p> <p>Judg’t is properly rendered for interest on the amount of damages assessed on a suit on supersedeas bonds since the statute of 1837, (3 Stat. Law, 208-9.)</p>

<p>Error to the Marion Circuit.</p> <p> Sheriffs. Motions. Executions. </p>

<p>Error to the Marion Circuit.</p> <p> Mortgagor. Mortgagee. </p>

<p>Chancery. Case 67.</p> <p>The case stated.</p> <p>In a bill for dower, the widow is not presumed to Itnow the precise nature of the husband’s title, and defective allegations in regard thereto maybe aided by the answer.</p> <p>A bill for dowex should alledge a seizin in fee by the husband.</p> <p>Would it be possible, in any case, to prove a relinquish meat of dower by parol, to have been made in writing? Quere. When husband aliens during coverture, widow is not entitled to rents even from the commencement of suit.</p>

<p>Chancery. Case 68.</p> <p>Where aeontraot for the sale of land stipulates for a deduction from the price agreed on, in case of loss of any portion of the land sold, there should be no rescission unless there was fraud,imposition or such gross mistake in regard to the subject of the contract as would render its enforcement unjust.</p> <p>It is- too late to object to a deed in this Court, which is adduced to prove title, which was read without objection in the Circuit Court, becausenotproved by both witnesses thereto, within 8 months from its dale, especially as possession appears to have been held under it for more than twenty-five yews.</p>

<p>Error to the Garrard Circuit.</p> <p> Usury. </p>

<p>Forcible entry. Case 70.</p> <p>The case stated.</p> <p>A purchaser of land at Sheriff’s sale, is presumed to hold adversely and not in subordination to the patentee or those claiming under him.</p> <p>It is improper for the Court to assume facts as proved and instruct the jury thereupon, the jury should be left to decide facts.</p> <p>Where land lies indifferentcounties, an entry in one will not divest apossession in another.</p>

<p>Appeal from the Logan Circuit.</p> <p> Double Damages. Trespasses. Judgments. </p>

<p>Covenant. Case 72.</p> <p>Case stated.</p> <p>Covenants in des^which^re bjYinng the coverture, aie not extmguished by the ™rlnTep. 375.)</p> <p>The right of action vestin the personal repre“p¿“Uí0e„ °gU0£ contract, and ed to be made aY represent.^ ^e’aoveniatybe to perform a will,</p> <p>In a declaration the during to tlle intended wife a right of disposition of a fund by will, it is not necessary in a suit against the husband, by her personal representative, to negative the payment to the devisees.</p>

<p>Error to the Russell Circuit.</p> <p> Sureties. Release. Injunction. </p>

<p>Appeal eeom the Knox Circuit.</p> <p> Slander. Words actionable. </p>

<p>Ejectment. Case 15.</p> <p>The case stated,</p> <p>A possession oí twenty years, adverse to an elder outstanding patent, enures to the benefit of the possessor.</p> <p>A defendant in ejectment may, on his defence, avail himself of an elder outstanding patent to. that under which plaintiff claims.</p> <p>A verdict should not be disturbed on account of an instruction which could not have prejudiced the party complaining.</p> <p>An entry and possession under a junior patent extends to the actual enclosure of all embraced by an elder patent and to the boundary of such as is not covered by the elder patent, and such a possession for 20 years tolls the right of entry of an older patent.</p> <p>Where the conclusion of the jury rests upon inferences to he drawn from circumstances, which, are themselves not conclusively established, this Court will not disturb the verdict.</p>

<p>Appeal prom the Harrison Circuit.</p> <p> Trespass quare clausum fregit Growing crop. Fraud. </p>

<p>Error to the Christian Circuit.</p> <p> Assignee and assignor. Diligence. </p>

<p>Error to the Garrard Circuit.</p> <p>Vacant lands. Possession. Chancery.</p>

<p>Assumpsit. Case 79.</p> <p>Case stated.</p> <p>Assumpsit on promise to give plaintiff employment, breach alledged on failing to do so, verdict andjudgment for $20, costs properly adjudged againsl the plaintiff.</p>

<p>Error to the Caldwell Circuit.</p> <p> Bills of exchange. Protests. </p>

<p>Assumpsit. Case 81.</p> <p>Tlie case stated,</p> <p>One to whom Bank notes is sent, may maintain , assumpsit against one who leeeived and failed to deliver them, without good reason for the failure.</p> <p>—And the person, who seat the Bank note is a competent witness to prove the delivery to defendant.</p>

<p>Appeal from the Knox Circuit.</p> <p> Sheriff. Curator. </p>

<p>Mill case. Case 83.</p> <p>The case stated.</p> <p>The inquest should show whether the health of the neigh bo vh oo d would be affected by the proposed mill dam.</p> <p>If the spring of an individual is to be overflowed by the erection of a'mill dam, it must appear that public convenience requires it or it will not be sustained.</p> <p>Can the Court of Appeals, in^ revising a decision of the ' County Court, establishing a mill dam, reduce the height of the proposed dam, and confirm the lease in any case?— Que. —It will not be done where there is still doubt whether the spring of complaining party will be overflowed, but leave the party to proceed de novo before the County C’t.</p>

<p>Chancery. Case 84.</p> <p>The case stated,</p> <p>Two tracts of land, adjoining, were sold on the same day, yet as separate bonds were given for the price of each, tract, and separate bonds given for the conveyance of each tract, due at different periods— held that the sales were distinct, and no lien attached to one for the price of the other.</p> <p>In such case, tho’ one tract was fully paid for, yet as there was a judgment and nulla bona, against vendee, for the price of the other tract, held that not only the tract to which the lien for the consideration attached but so much of the other should be sold as would pay the judg’t, though the title bond for the tract paid for had been assigned to the son of vendee, as the proof did not clearly show that the son had himself paid the price to his father or vendee.</p> <p>A sale, decreed dnot been replevied, should be on such a credit as ecutionUwouíd6bé made-</p>

<p>Error to the Jessamine Circuit.</p> <p> Verbal contracts. Statute of frauds. </p>

<p>Assumpsit. Case 86.</p> <p>Case staled.</p> <p>The assignment of a note secured by mortgage, carries with it all therightofmortgagee, and it is the duty of assignees exhaust such means before resorting to the assignor.</p> <p>If the assignee reasonable <iiLiplaced^in161hts power, to secure he has no re--assignor. a®amot</p>

<p>Error to the Clay Circuit.</p> <p> Sci. fa. Recognizances. </p>

<p>Appeal from the Louisville Chancery Court.</p> <p> Fraudulent conveyances. Preferred creditors. </p>

<p>Error to the Anderson Circuit.</p> <p> Bills of Review. Fraud. Decrees. </p>

<p>Chancery Case 90.</p> <p>case stated,</p> <p>The object of the complainants’ bill.</p> <p>Woods, Siraeckr <y Co. come into the case by answer made a cross bill.</p> <p>The answer of Quarrier, Bell, & Bradford, and Wilson and Sturdevant.</p> <p>The decree of the Chancellor.</p> <p>The parties held, as partners, the boat, H. L. White, in contest.</p> <p>A ship or steamboat may be the subject of a partnership holding as well as any other chattel.</p> <p>So may real estate, in equity, when purchased with partnership funds or made stock for partnership purposes.</p> <p>A steamboat built and fitted out by partners, for- the carrying on trade, is not subject to sale by one part owner thereof.</p> <p>A part owner of a steamboat, built byparlners, cannot sell the entire boat, but if he so sell, and tho boat be in the adverse possession of a purchaser, a sale by the other partowner, out of possession, gasses no title, it is the sale of a chose in action only.</p> <p>Courts of equity sometimes interfere in behalf of the assignee of a chose in action, treating the holder as trustee for his benefit. Ct’s oflawsometimes protect equitable holders of writings, in the use of the name of the original payee, to recover a demand—</p> <p>But not to protect a vendee of a personal ehatteladverselyheld by another.</p> <p>A junior equity, united to the legal title, wi thout notice, of a senior equity, will be protectedagainst the seniorequity.</p> <p>Pesaes3ioii is notice to all the world of the holders claim to realestate — so of chattels.</p> <p>Part owners of a steamboat, built for the carrying trade, have a lien for advances made for theboat for other part owners, beyond their proportion, and which their vendees may assert.</p>

<p>Error to the Madison County Court.</p> <p> Motions. Paymaster. </p>

<p>Error to the Nelson Circuit.</p> <p> Testamentary declarations. Nun cupative wills. </p>

<p>Appeal from the Henry Circuit.</p> <p> Conveyances. Evidence. New trial. Femes covert. </p>

<p>■ Chancery. Case 94.</p> <p>Case stated.</p> <p>A discharge in bankruptcy exonerates the person but not effects sought to be subjected by suit in which a lien has attached.</p> <p>By tho institution of a suit in</p> <p>Chancery to set aside a conveyance of property and subject it to' complainant's demand and service of process, alien attaches in favor of complainant, which was not divested by proceedings in bankruptcy vs defendant.</p> <p>Case where a misrecital in a mortgage, which could not have been the result of an unfair motive, held not to prejudice mortgagee.</p>

<p>Error to the Woodford Circuit.</p> <p> Partners and partnership properly. Lien. Mortgages. </p>

<p>Debt. Case 96.</p> <p>The case stated.</p> <p>Where the error complained of is a mere clerical misprision and the amendment made in the Ct. below, (which is the proper place for its amendment,) the judgment should be affirmed with damages and costs.</p> <p>A mis'talie in entering a judg’t on a note of the day from which interest is to be computed, is a clerical misprision properly amendable in the Circuit Court.</p>

<p>Chancery. Case 97.</p> <p>The case stated.</p> <p>The decree of tho Circuit Court.</p> <p>General siatementof the facts by which fraud is proved.</p> <p>A complainant, having purchased under execution, at a reduced price, property fraudulently conveye.d, and bringing his bill to set aside a conveyance and clear his title, must do equity— and in such case the chancellor will order a resale of so much of the property as will satisfy complain ant’s demand, and a release to defendant as to the remaindernotsold.</p>

<p>Chancery. Case 98.</p> <p>Case stated.</p> <p>Decree of the Circuit Court.</p> <p>Where a slave was sold, a bill of sale given, and' a writing given by vendee givingvendor the privilege to repurchase within two years if the slave he living, no note or other security given by vendor for the amount of the price, which was the fair value, and vendor acquiesced for 11 years, held that it was not a mortgage transaction.</p>

<p>Mandamus. Case 99</p> <p>The ease stated,</p> <p>An appeal lies to this Court from the decision of the Circuit Court awarding a peremptory mandamus to the County Court, requiring them to restore to his seat on the bench of the County Court one whose seat they have declared vacant by their order.</p> <p>The County C’t. having the right in aid of the Executive, to recommend to the Executive, suitable persons to fill the offices of Justices of the Peace, have as incident to such right, the power to decide when a vacancy occurs.</p> <p>—Such decisions have not the effect to temove the officer, the County Court has not suchjuducial power.</p> <p>The applicant for a mandamus, whose office of Justice of the-Peace has been declared vacant by the County Court, must, to authorize its emanation, show that he is in fact, authorized to hold and exercise the office.</p> <p>—The office of Justice of the Peace and Post Master are incompatible : (4 B. Mon. 224.)</p>

<p>Pet. & Sum. Case 100.</p> <p>Case stated.</p> <p>The omission of the name of the subscribing witness to anote attempted to set it out on petition and summons, is not a material variance, nor is the omission to add the abbreviated word “Secy” to the name of one of the obligors, it is not of substance: (4 Monroe, 527: a Bibb, 32.)</p> <p>A demurrer and pleas are filed to petition & summons, plaintiff demurs' to the pleas, the sufficiency of the petition comes up on the trial of demurrer to pleas, and if the decision is right defendant cannot complain that his demurrerwas not first decided on in form.</p> <p>First plea.</p> <p>Second plea.</p> <p>A verbal promise to emancipate a slave is a_ good consideration to support a note, although promis- or was only part owner of the slave to which the promise related, and not within the statute of frauds, is not immoral or illegal.</p> <p>—So is a promise by one part owner, nor is it any infraction of the laws prohibiting owners of slaves from permitting them to go at large and hire themselves, by the emancipation they cease to be owners.</p> <p>A part owner of a slave may emancipate to the extent of his or her interest in the slave — -it is effectual pro tanto.</p> <p>A promise by one part owner oí a slave to emancipate himself and procure the other part owners to do so likewise, is a valid promise, and good consideration for an obligation.</p>

<p>Appeal prom the Harrison Circuit.</p> <p> Rescission. Assignor and Assignee. Parties. </p>

<p>Case. Case 102.</p> <p>The case stated.</p> <p>For an easement to grow into a right by adverse enjoy?nent, it is not indispensable that it shall have been preceded by a disseizen, it is sufficient if it be uninterruptedly enjoyed by one and a non-nser by another for 20 years.</p> <p>Where the free flow of water to and from a .mill has been enjoyed for 20 years, it may not be obstructed even by one who might have obstructed, in the exercise of a legal privilege, before such lapse of time.</p> <p>Where the preponderance 9f evidence is doubtful, if the law be not correctly given by the Court, to the jury, a new trial should be granted.</p>

<p>Error to the Greenup Circuit.</p> <p> Slaves. Husband and wife. Detinue, </p>

<p>Error to the Bourbon Circuit.</p> <p> Bonds for title. Warranty. </p>

<p>Covenant. Case 105.</p> <p>Case stated.</p> <p>Decree of the Circuit Court and what is complained of by the . parlies.</p> <p>Equity of redemption in mortgaged property, is not subject to sale under execution for the debt secured by tire mortgage.</p> <p>The transfer of a debt is, in equity, a transfer of all securities for such debt.</p> <p>Where the assignee of a debt secured by mortgage, caused the mortgaged property to be sold to pay ■ the same debt, and it was acquiesced in for 4 years, by creditor— Held that a purchaser from the purchaser at the execution sale, ignorant of the fact of mortgage, &c. should not be disturbed in his purchase by mortgagee os his assignee.</p> <p>Mere inadequacy of price not a ground to set aside a sale under execution.</p>

<p>Chancery. Case 106.</p> <p>The case stated.</p> <p>Defendant’s answer.</p> <p>Decree of Circuit Court.</p> <p>Facts appearing in evidence.</p> <p>To constitute a valid gift of a chattel a delivery is, in general, necessary. But this must be according to the nature of the thing given, and if there is not an actual delivery, an equivalent act must be done: (2 Kent's Com. 437-8.)</p> <p>A payment of money by a father for his natural sons, for whom he was surety, to another, under the circumstances, held to be a valicUgift of the amount paid.</p>

<p>Appeal prom the Green Circuit.</p> <p> Wills. Appointment. Children. </p>

<p>Error to the Louisville Chancery Court.</p> <p> Insurance. Total loss. Abatement. Salvage. </p>

<p>Appeal prom the Lewis Circuit.</p> <p> Limitation. Unknown heirs. Parlies. </p>

<p>Error to the Garrard Circuit.</p> <p> Partnerships. Administrators. Sureties. </p>

<p>Appeal prom the Simpson Circuit.</p> <p> Depositions. Notice. Practice. Possession. </p>

<p>Error to the Nelson Circuit.</p> <p> Grants. Franchise. Trespass quare clausum fregit. Joinder. Husband and Wife. </p>

<p>Motion. Case 113.</p> <p>The case stated.</p> <p>Will a joint notice by two or more individuals, of a joint motion ‘ against a CleTk for judgment for fine and refunding money illegally exacted on fee bills, be sustained — Qw.</p> <p>Such a notice to a Cleric, served 10 days before the motion on the mother, when the defendant was in the house, but not to be seen on account of indisposition, is good.</p> <p>Any person paying Cleric’s fee bills containing illegal charges, may obtain judgment for the money so paid, and fines.</p> <p>The Circuit c’t. to3 hearh°ot!ex proof than that face o^the^fee presnmea to necessarytoS°usment tlie Juds"</p> <p>Clerk are not authorized to charge for a cetificate to the Constable independently upon the summons in cases of appeals to the County Court.</p> <p>Nor to charge a fee for taxing costs, where no costs are recovered.</p>

<p>Appeal prom the Louisville Chancery Court.</p> <p> Parties. Copy-rights. </p>

<p>Pet. & Sum. Case 115.</p> <p>Case stated.</p> <p>“Where a bill of ■exchange is made payable at a particular .house, and ac■cepted generally, a demand at that house is .sufficient without further inquiry for the acceptor.</p> <p>If the law of the place where a bill of exchange is payable, sanction the practice of a demand by the clerk of the Notary Public & the making out and signing the protestbytheNotary himself, it will be regarded asa valid protest in Ky.</p> <p>If a bill be protested on the day it falls due, and notice placed in thepost-offiee on the same day, directed to the parties by whom the bill was transmitted for collection, and. by the first mail also to the other parties to the bill, it is sufficient.</p> <p>Where the payee or holder of a hill transmits it for collection & fails, in reasonable time, to receive notice of its payment or dishonor, it is his duty to 'write for information of its fate, and in reasonable time after information of its non-payment to notify those inteiested.</p>

<p>Chancery. Case 116.</p> <p>A vendor who gives an opinion honestly, of the soundness of an article, is not liable to the charge of fraud, but if the affirmation be of a fact, which from' its nature may be ascertained, with accuracy, and which the owner is presumed to know, as the age of a slave which he is selling, and made without reserve, qualification, or reference to the means of his knowledge, it will not be understood as mere judgment or opinion.</p> <p>Could an assertion of a vendor of a slave, as to its age, be so qualified, by showing after-wards that it was according to the information received and believed, but not accompan y ing the assertion as to screen him from responsibility if false — Qm.</p> <p>A vendor’s affirmationsas to the age of a slave, Se6 Pmad™ rfpon anff false, ^frauduwithout icnowitended de?®ive> and ,if lent.’</p> <p>The assertion of siav^whiehVe but three ehilfact she was the m°,^M°fraudugee“„ingXfaetof i which, he should i correctly inform-, ea’withouUnfoí ! ”vas ] deceive,</p>

<p>Error to the Montgomery Circuit.</p> <p> Principal and agent. Lapse of time. </p>