Volume 45 — Kentucky Reports

Motion. Case 1. The ease stated. Motions against regimental collectors for failing to pay over moneys collected, should be in the name of the regimental paymaster. The motion allowed by law against a regitoHnVehaif^of the regimental paymaster must be against the collector or his sureties, not against both. in entering such galnstsheriffsor i^ctOTsf^oredit should be given for the legal commissions for collecting.

Covenant. Case 2. The case stated. A plea in abatement is the only mode of taking advantage of a failure to sue both obligox;s where the_ obligation is joint. Though a connect be made with an agent, the right of action is with the principal, unless the obligation is express or clearly implies that payment is to be made to the agent.

Appeal prom the Louisville Chancery Court. Chancery. Case 3. Does the statu! e of 1839, so far as it gives equal dignity to simple contract debts with specialty or judgment debts, impair the obligation of contracts? — Qu. The statute of 1839, allowing administrators to file bills against heirs, &c. and the Court to de,eree sales of real estate, applies as well to eases before as after the passage of the statute.

Chancery. Case 4. oJ*tbe&bfus^°nS Answer of Chinowith, the admr. in Kentucky. Answer of Cotton, the adm’r. in Mississippi. Matter ot avoüü pjovea.muSt be When payment has been made to a mortgagee after the execution of a mortgage, the presumption is that it was made on the mortgage debt, and a mortgagee in a contest with creditors of mortgagor, asserting that the payment was on a different account, is bound to prove it.

Chancery. Case 5. The case stated, . A paro, contract for the sale of a performed within one year, is within the statute of irauds and cannot be enforced specifically.

Chancery. Case 6. The case stated. A pendente lite purchase from one holding a fraudulent conveyance, passes no title against the suit. A bona fide creditor of one who has fraudulently conveyed his property, may, if he have no connection with the fraud, take a mortgage from the fraudulent grantee to secure his own just demand against the fraudulent grantor, which will be valid.

Indictment. Case 7. The charges in the indielment. The opinions of witnesses that a house is a_ nuisance as it is kept, is incompetent, upon one g^ngCanuisance] The habitual practice of a punishable of-fence, tho’ punishable by pecuniary penalty, may nevertheless constitute a house in which they are practised, a public nuisance, for which an indictment will lie.

Chancery. Case 8. Case stated. Decree of the Chancellor. After the hussofvenrthl6 at*°™eey /“Lived a fund, the prop. erty of the wife, and by her diieep3a0n — Held J|1aabt]eit Fas ¶!* hands to be aptheplChaneellor of P5Lhusband without suitably providing for the wife. courts of chan“fhj to subject estate wlfetodtL%ay^/th^tosbaíd^ un,il. fh? wife be provided ior by a suitable maintenance,norpermitthe husband sonal property descended unless such proviSKm be made' An'insolvent…

Chancery. Case 9. The case stated. The holder of a life estate in slaves, may rightfully surrender such estate to one oí two tenants in remainder, and is not reponsible for the disposition afterwards… Held: out of the state — but after a removal of property so held, the Chancellor cannot interfere, especially where the life estate is hanging. The Chancellor may ' restrain waste, but after it is done, cannot redress it.

Chancery. Case 10. The case staled, and will oí Jesse Christler. Land devised to executors to be sold at lheir discretion, as to time, is not converted into money until it be sold. ■ A devise of personalty, corn, ■wheat, ac.which is intended for consu in p t io n, passes the absolute light thereto.

Trespass. Case 11. The case stated. Eight of injured party to redress, not merged in the public remedy. One of three defendants appeals from a Justice, plaintiff files a declaration against him alone, demurrer by such defendant will not be sustained for omission to sue the other defendants. nor for difference in discription of injury in the warrant and in the declaration.

Chancery. Case li, Statement of the case and decree of the Circuit Court. Upon a rescission by Chancellor, the parties should be placed in slatu puo, and money paid should be ordered to be refunded. Contractfor support, (being part consider a t i o n. for estate sold,) and failure to perform it, shoud rather operate as aground for enforcing perfo r m a n c e thereof, than for rescinding the contract by the Chancellor.

Chancery. Case 13. case stated. Parol proof to establish a resulting trust, after great lapse of time, should be clear and explicit. A'devisee of land held in trust, hold subjeet to the trust.

Chancery. Case 14. The case stated. Answer, decree: of the Chancellor, &c. A party seeking to setup in ehaneeryarestrietion in the use and enjoyment of a purchase, by an alledged parol agreement, must be confined to the agreement set out in his bill, though the proof may exceed the allegation.

Chawcery. Case 15. The case stated. Judgment of 1 Circuit Court. a biliofexch’ge zen of Kentucky other^Ste^and ^a¡?letót!en foreign bin of exohan£e- A protest regularly made in due form, is necessary to a recovery on a foreign bill of exchange in the courts of Kentucky — and presentation and noting for nonpayment must be by a Notary himself; by his cle-k is not sufficient, unless there be proof that presentment and demand of payment by the clerk of the Notary is sanctioned…

<p>Appeal from the Bracken Circuit.</p> <p>Error to the Bracken Circuit.</p> <p>Forcible detainee.</p> <p>Chancery.</p> <p>Case 16.</p> <p>Subject of controversy.</p> <p>Breeding’s claim ofri=llt-</p> <p>Taylor’s claim of right.</p> <p>A judgment in ejectment ag’st only one tenant authorizes a divestiture of his possession only, and not the possession of others not sued.</p> <p>The holder of the legal title, upon being let into possession under _ a judgment against one tenant who has intruded into possession,becomes possessed to the extent of his title unless another is possessed of the better possessory title, in which event his possess’n would be restricted to the possession under the judgment.</p> <p>A junior patentee entering upon the elder, obtains possession coextensive with his enclosure only.</p> <p>The quashal of a writ of restitution and a restoration of possession given under it, places the parties, in respect to their legal rights as they stood before the emenation of the writ.</p> <p>A plaintiff in ejectment is not bound to give any other notice of the institution of his suit than to serve the declaration and common order.</p>

Chancery, Case 17. case stated, Decree of the Chancellor. A vendor taking the assumpsit & note of a purchaser of part of a lot sold in discharge of so much of the price agreed to be given by the first vendee, has in equity a lien on the part pur. chased by the sub-purchaser to the extent of such assumpsit.

Chancery. Case 18. The case stated. Decree of the .Circuit Court. The general rule is, that a vendor has a lien for the purchasemoney, unless it is waived, as well against the vendee as subsequent purchaser» with notice. A purchaser is bound to notice recitals in deed» constituting the claim of title, through which he claims, and a recital that the deed is made upon a consideration paid and secured to be paid, is notice that it is unpaid, and the lien of vendor respected.

Trespass. Case 19. The ease stated. •‘I gire to my son-in-law and daughter, in addition to the 8 negroes foimerly given, the following, to-wit: J- W. H. E. B. M. and her child, also, S. M. and G. to serve them 8 years and then to be free,” this clause construed to give freedom after 8 years service, to all the slaves named. “I also give my nephew.

<p> Mortgages. Commissioner’s sales. </p>

Chancery. Case 21. Case stated in the bill. Answer of Lindsey. ■A bill in chancery may be entertained in this State, against one who is an administrator jin South Carolina, who has received “rents accruing since the death of the intestate, or for rents owing for the use of his lands since his death, where the heirs are infants, and reside in Kenluc'ky such an one will be regarded as a trustee.

Chancery. Case 22. Case stated and decree of the Circuit Coflrt, In the construction of wills, it is not proper to interpolate or supply an elipsis unless it be rendered necessary in consequence of anapparentinconsistencywith the context, or unless there be something in the sentence to show that there is an elipsis which may be supplied by the insertion of words found elsewhere in the sentence.

<p>Appear from the Trimble Circuit.</p> <p>Chancery.</p> <p>Case 23</p> <p>'She- case stated.</p> <p>Decree of the Circuit Court.</p> <p>■ Questions presented.</p> <p>The terms of & contract for the sale of land, to take it out of the influence of the statute of frauds and perjuries, must be in writing.</p> <p>Fugate vs Hans-ford, (3 Litt.) cited where an order to trustees of a town describing a lot by its number, and acknowledging the payment of the whole consideration, was held to be sufficient to take the case out of the statute.</p> <p>It must be regarded now as the settled rule of decision, that contracts for the .sale of lands, must be so far evidenced by writing, as to enable tile Ghancellor specifically to execute it without the aid of parol testimony.</p> <p>A purchaser by possession, ia|s for ^enu^untii the vendor has conuuofofsaiet nor should he re* ceive Interest on the consideration paid, but from the same period—</p> <p>—Nor should such a purehaser be charged than'h^had'acíheiandSOl<Í °ff</p>

<p>Appeal from the Montgomery Circuit.</p> <p>Chancery.</p> <p>Case 24.</p> <p>The case stated and deciee of the Circuit Court.</p> <p>The assignor of a bond for title to land, is not responsible for the title, without he is guilty of fraud in ths sale thereof.</p> <p>Where land is purchased by several,and joint deed received, a trust results in favor of each to the extent of the consideration pd by each.</p> <p>So where a joint purchase is made by several, and separate notes given lor the considera t i o n, the Chancellor in enforcing the contract, will decree a conveyance in proportion to the price paid and agreed by each*</p> <p>Where there exists a written contract declaring a trust, parol proof cannot be admitted to add to or vary the trust declared.</p> <p>—But the mere execution of a deed jointly to severel, including him who pays the consideration, nor to several where they paid unequal portions of the price, will not prevent the Chancellor from following the amount paid by each into the land, upon parol proof of payment. The same pri-mple applies ■where a bond is given for a conveyance bat none actually made.</p> <p>The statute of frauds and perjuries was not intended to restrict equitable trusts between joint executory purchasers, based upon promises and payment of unequal parts of the consideration.</p> <p>A trust fund applied by a fiduciary in the purchase of land, may be followed by the cestui que trust, into the land purchased, whether the contract be executed or executory.</p> <p>Where there was a joint purchase of land by several by executory contract, and an agreement to pay unequal parts they are entitled to a division according to the amount promised and paid by each, and the Chancellor will enforce a parol division made by the parties in furtherance of this object, where possession was acquired and occupancy held under it.</p> <p>One who stands by and permits another to purchase land to which he sets up title, will be es-topped to assert such title afterwaids against the purchaser.</p>

Motion. Case 25. The statute of 1828, (Statute Law, 639,) requires sales of land to be made the first day of a Circuit or County Court of the county where it lies, and no sale can be made on any other day unless by the written consent oí both plaintiff and defendant in the execution. The defendant in an execution isa necessary party* to a, motion to ^uasíi a sale for irregularity.

Motion. Case 26. Writoferrormay be brought directly to this Court from orders of County Courts establish* lishing roads. The report of viewers appointed to view a way for opening a new road, held defective, in not slating the conveniencies to the public, and inconveniencies to the owner of the soil, and in not extending the view as far as ordered.

Chancery. Case 27. The case stated. Off-sets in chancery do not de. pend upon our statute of set-off. but are allowed upon the general principles of equity. One member of a film will be allowed to off-set in equity his own judgment against an insolvent debtor, who seeks to coerce a judgment against such firm. Where there are mutual judg’mts between parlies, the assignee of one of them takes only a subordinate equity.

Chancery. Case 28. The case stated. Barbour’s answer and cross bill. Wm. Griffiith’s answer and cross bill. Morris’™widow adm’r. over- Decree of the Chancellor. .

Chancery. Case 29. A creditor of a firm, one of whom dies, has not, from that fact alone, a right to sue in chancery for a demand due from the firm The members of a partnership have the right to have the effects of the firm appropriated to the payment of the firm debts, and each have a lien to secute such appropriation, as ■well as any final balance in his favor.

Case. Case 30. For the facts of the case see 4 B. Momos, 514. Additional proof on its return to the Circuit court and its tendency. Instruclions of the ciicuit Ct. The existence and continuance of the right to the privilege of the owner of a mill to dam up the water to a particular distance, does not depend upon the fact that the water within twenty years has or not been backed up to that distance, hut that it may have been so hacked if there had been a sufficiency of water.

Chancery. Case 31. It is the general rule that where process is served on an original bill, that the defendant is bound to take notice of all subsequent proceedings in the cause, tho’ there are exceptions. where the par-chancery ''had amfssaf^of8,the suit and an order was given by complainant for defendant^10 had sumeof°monlya upon filing an plemental ^Si nongcompliance of defendant and asking a decree agreeably to the proSss°should suchbiUUed °n

Motion. Case 32. The case stated,' Judgment of the Circuit Ceurt. a Justice of the Peace is not bound to attend vidnaisto°distant county °io take acknowledgment at deeds or perform other priunless Spaid°for his trouble. But if such compensation, as an individual, is not exacted, he can-chm-geafor'uras official dues. In motions a-o^the Peace for illegal, charges, gations and proof must correspond.

The ease [slated. pealsPasTari'appeltate tribunal, has the power to revise judicial a»te-fflolyí'1(il0ial In this it is subject to such restrictions alone as may be imposed by Legislative enactment. The righijotjj appeal is intended to guard against the irregular, arbitrary and illegal exercise of a judicial power. The Constitution in reference to the office of Jailer, does not fix the tenure of office.

Chancery. Case 34. Three years possession of a slave passed by gift, is necessary to confer title on the donee against the creditors and purchasers of the donor The object and intention of the Legislature is not affected by deciding that a gift and possession by donee for part of 3 years, and by donor as agent of donee for the remainder of the three years, ■will confer title on the donee as against the creditors of donor.

Information for removing said Rodes from office. Case 35 Classification of the charges. 1st specification under 1st charge of embezzlement of public moneys — failin g to account with the Auditor lor public moneys received as revenue in 1835. 2d specification, failing to account for public moneys received in 1836. 3d specification, for failing to account for public revenues received between 1st Dec. 1838, and Dec. 1839. uh speoi,.?a_ tion, for failing 10 OCCOUllt JOT public…

Chancery. Case 36. Tfca case stated. A direction to a Sheriff by a plaintiff in execution, to pay over the money collected for his benefit on an execution against him, is not a payment— the plaintiff in the latter executian being no party to, nor having agreed to any such arrangement. tef aPei°evivaia0ff the latter judgShynscLXfa.a'

Ekbor to the Jefferson Cir, Covenant. Case 37. ms ,Sijice the stat-of 1837-8, St. Laws, 13, 17,) in a suit oa a supersedeas bond, the plaintiff has a legal right to recover interest on the amount of the decree in chan eery, as well as upon the damages awarded on the affirmance of such decree, from Ihe date of the decree and the affirmance respectively.

Writs of error to the JeffErson Circuit. Assumfsit. Case 38. The case stated* Where consignments are made ■of property to a factor or agent ffor sale, he is «authorized to sell ’for cash or on credit, according to the usage of the place where the sale is to be made— Ifhe acts in good faith he is not responsible for losses.

<p> Vendor and vendee. Sales of land. Deerees. Executors. Equity.. </p>

Ferry Case. ' Case 40. The case stated. A County Court one^en^TcTset anordeiofapre* lerm> and deteimines pfrais-if^may correct_ clerical The removal of a Justice of Ihe Peace from the •county for which he is appointed, to be a vacation of his office, must be with the .absolute intent to change his residence.

Chanoery. Case 41. Clause of the will to be construed. Object of cbmlija o“er%fbthe c!rouit Comt.

<p>Error to the Carter Circuit.</p> <p>Chancery.</p> <p>Case 42.</p> <p>The ease stated.</p> <p>A vendor cannot enforce specific performance of an executory contract for land without showing a good title.</p> <p>A party seelcing a rescission for defect of title in the vendor, is not bound to submit lo terms other than the terms of the original eoniraet.</p>

<p> Bowlinggreen Trustees, their charter powers. Contracts. </p>

Replevin. Case 44. The ease stated. By an ante-nuptial contract the property of the wife was conveyed to a truslee to her separate use. She gave a portion of it, (a slave,) by parol gift, to another— Held that no legal right passed which would authorize the do-nee to maintain an action at law for the slave.

xAppeal from the Garrard Circuit. Chancery. Case 45. The question presented. An adm’r. may sell slaves for the payment of debts, and represents them as fully in controversies respecting their title as any other assets, and no other can maintain detinue or trover for them, without the assent of the executor or administrator. Ex* ecutor or administrator may sell slaves; though not necessary to pay debts, and pass good title.

<p>Appeal from the Madison Circuit.</p> <p>Changer?.</p> <p>Case 46.</p> <p>Error to the Madison Circuit.</p> <p>[In 1836 and 1837, Cassius M. Clay and A. W. Gogqloe became bound as joint sureties of William Rodes,for the payment of sundry debts. In August, 1837, Rodes made a mortgage to Clay for his indemnity in tfrese and other liabilities. Clay paid off all or a considerable part of the debts for which he was jointly bound as surety with Goodloe, had a foreclosure of the mortgage, and sale of the mortgaged effe'cts, which failing to indemnify him, he filed his bill in this case, against Goodloe, for contribution, which being decreed to him, Goodloe appealed and Clay assigned cross errors.</p> <p>This brief statement is made to facilitate the understanding of the case, as the opinion was not, when written, designed for publication. Reporter.]</p> <p>The case stated,</p> <p>One of several joint sureties who receives a mortgage of personal property, and who pays the debt, is, in justice to the joint surety, bound to use reasonable diligence in appropriating the security to the re-payment of the money paid out, and responsible for any loss oi'Swaste arising from his laches.</p> <p>Where property is mortgaged to indemnify a surety in various liabilities, _ in some of which the mortgagee has joint sureties, there should be a pro rata distribution of the proceeds.</p> <p>A joint surety •with one who held a mortgage for his indemnity, under the circumstances of the case, held not liable to pay interest to his co-surety for payments made as such for the principal, but from the time he Was sued lor contribution.</p> <p>The Chancellor in analogy to the statutory remedy given to a joint surety against his co-surety, will generally decree the payment of interest from the time of the disbursement by the joint surety; and so generally in cases where the demand is liquidated.</p>

<p>Error to the Fayette CiEOurT.</p> <p>Chancery.</p> <p>Case 47.</p> <p>The case stated.</p> <p>The Circuit Court of any county where a lunatic may be found going at large, and who is ungovernable, has jurisdiction to have an inquest into his state of mind and funds.</p> <p>—And the same Court has jurisdiction to make the proper orders appropriating his estate to his maintenance.</p> <p>Where a lunatic ted atestatePPex^nSp'ellb®0n°u0rí bill by attorney for Commonwealth,may de“hr®e mCommon-his estate, against jhis^estate," ^ ofSt]ceep?n¿ such^ in I different h°lwhmh°the^ní p°ocesSsbe" ing served on the couniy where siut 1S broughl"</p> <p>The attorney for the Commonwealth is the proper person to apply to the Chancellor for an inquisition of lunacy.</p> <p>One who assumed to act as the committee of a lunatic and who was receiving the profits of his estate, not allowed to retain his property purchased at. a reduced price, but credited by his disbursements.</p> <p>A decree for part expenses of a lunatic in the Asylum should be in favor of the Commonwealth, and to the amount only which is allowed for maintaining pauper, unless in extraordinary cases-</p> <p>Where the father of a lunatic is living and has the custody of his estate he should be his committee, on giving bond, if willing to take it</p> <p>No decree should be rendered against a lunatic without the appointment of a committee.</p>

Whits of error to the Scott Circuit. Chancery. Case 48. The case staterdr. Un filing a bill of revivoragainst the widow and heirs of a non■resident, who has died, regular publication or order of warning, &c. is necessaiy, and service of process if they be in the State.

- Chancery. Case 49. The case stated. Questions presented in the case.

Writs of error to the Louisville Chancery Court. Chancery. Case 50. Mortag'e from P. & M, Reinhard to J, Reinhard. To Susannah Reinhard. Deed of trust to' John Reinhard and J. Danforth. Answers of defendants, grantees in the deeds, made cross bills. Decree of the Chancellor. Questions for decision.

<p> Awards. Admissions. </p>

¡(Chan-c-ery. Case 52. The .case stated, Decree of the Circuit Court. H. purchased of C. a tract of land and gave his note for part of the price to S. to whom C. was indebted, and C. gave H. credit for the amount.

Assumpsit.- Case 53. The case'stated, Tho* it might be good cause of demurrer that the damages were not stated in the declaration, yet after verdict it is not sufficient ground to arrest the judgment or authorize a reversal of it in this Court.

Chancery. Case 54. A purchaser under a sale made undera decree of foreclosure and sale under a junior mortgage, where the senior mortgagee was not a party-may properly, on petition, have the sale and his purchase set aside. A decree of foreclosure and sale of mortgaged estate is properly set aside on bill of review, where the ‘ mortgagor had died and his heirs were not before the Court.

Motion. Case 55. The ease stated. The obligation to teach colored ap- prentices ^ to read, is dispensed with by the statute of 1843. Persons of color cannot be bound apprentices by County Court, without summoning the next friend or person with whom such person lives, to appear in Court to show cause against the binding out such person— —Unless there be a voluntary appearance of such next friend, which the record should show.

Chancery. Case 56. The complaint waste praying injunction, &c. The answer of Mrs. Houghton, denying waste. Decree of the Circuit Court perpetuating injunction, &c. •One of several remainder men who merely acquiesces in the commission of waste by the tenant tor life, does not thereby become liable for such waste to those entitled jointly in remainder.

Ch.aíícerí', Case 57, The oasestatedi Decree of the Circuit Court. Statements and confessions of an assignor, made after the assignment of a note, are incompetent against the assignee. The testimony of a single witness against the positive denial of the answer, uncorroborated by circumstances, is insufficient to authorise any decree against the answer.

Chancery. Case 58. The case stated, since the statute °S ^k-J5^ person can apfan^which^fn anotheCrPwithout siTin& such occupant three months’_ notice ioairoroDriateit1 ’ within which time the occupant may appropriate it; 4 Mon. 104; 4 B. Mon. 396. Equity may relieve against a patent obtained in fraud of the pre-emptive right of a settler upon vacant land west of the Tennessee river, upon proof of the intention of the occupant to appropriate the land.

Chancery. Case 59. The case stated. Sureties of a guardian are responsible o'n their bond for proceeds ofland &c. sold under a decree and received by the guardian, altho' the Chancellor may and does lake a bond and security from such guardian, under the statute.

Appeal fom the Trigg Circuit. Detinue. Case 60. The case stated, An inquisition of lunacy is only prima facie evidence against strangers, and in Kentucky, is entitled to but little weight, unless it find the subject to be an idiot irom birth.

Appeal frojm the Anderson Circuit. r{ Case. Case 61. The case stated facts appearing in the record. ' Judgment of the Circuit Court. instructions tiffeandyreFuse¿ Instructions given by the Court. Probable cause is an inappropriate defence for speaking- slanderous words, and instructions based upon its sufficiency as a defence, should not be given without showing a justifiable cause, occasion, and object in uttering the words.

<p>Appeal prom the Fayette Circuit.</p> <p>Assumpsit.</p> <p>Case 62.</p> <p>The case stated,'</p> <p>Lafon & Caldwell agreed to manuf a c t u r e hemp, Lafon to provide the hemp, &c. Caldwell to furnish looms and manufacture it into baging at three and a half cents per yard; Lafon to export and sell, and after paying C. the three and a half cents for manufacturing and Lafon for the hemp, transportation, &c. to divide the profits equally. Chinn hired Caldwell a slave, sued Caldwell & Lafon as partners— Held that if the contract was with Caldwell individually and not with the firm that Lafon was not responsible as a partner for the hire of the slave.</p>

<p> Bills of Review. Injunction. Damages. .Interest. </p>

- Indictment. Case 64. Prior to 1841 this Court had no jurisdiction to revise the decisions of the Circuit Court in prosecutions for misdemeano rs, unless in cases where fine is the only punishment. By the statute of 1841, an appeal ot writ of error is allowed to defendants but not to the Commonwealth.

Chancery. Case 65. Justices of the Peace have jurisdiction to render judgments in cases within their jurisdiction, though the interest added may exceed ISO. —And under the statutes of 1838, 1839, and 1840, to enforce by equilable process, especially that of attachment, the collection of those debts over which they have jurisdiction at law. Can the Circuit Court entertain jurisdiction of a ^case comment cing under the equitable junsdiction of a'JusPeace

<p> Patents. Femes covert. Notice. Lapse of time. Fraud. Mistake. </p>

Chancery. Case 67. The case stated. Decree of the Circuit Court. If upon a division among heirs conveyances be made by each, heir separately,, of his pari only, they pass the legal title to each separate proportion, but not to* the whole extent. Example of a witness whose testimony is not to be believed from his own statements, from the impossibility of his knowing the facts stated, if true.

Appeal fom the Spencer Circuit. Ejectment. Case 68. Case stated and evidence. Instructions of the Circuit Court The possession of a purchaser by executory contract, looking to his vendee ior title, is amicable, and whilst those relations exist, no action to recover possession can be maintained by vendor, until notice to quit by the latter.

Detinue, Case 69. The case stated. The assumption of facts by the Court, as the basis of an instruction which the jury are bound to find as supposed, does not constitute a ground for a new trial, if the law arising on the facts be correctly expounded to the jury. A devise oí a slave to A. for her life, and at her death to her children, if any, if not A. to give it to -whom she pleases.

<p> Rescission of contracts. Fraud. </p>

<p>Error to the Marion Circuit.</p> <p>Chancery..</p> <p> •Case 71. </p> <p>The case slated.</p> <p>Decree of the Circuit Court.</p> <p>When two mortgages are signed and acknowledged or proved and deposited for record on the same day, the mortgage which was prior in time, is entitled to precedence, and parol proof is competent to prove which was in fact first deposited for record. It is the Íiroving or aecnowledging and depositing for record, that gives precedence to mortgages.</p>

Appeal erom the Hart Circuit. Chancery.. Case 72. The will to be’ eonstrued»- A devise of the whole of the estate of testator, after the payment of debts, to the widow for life, “but if she marry, then and at that time, an equal division taires place, both of the real and •personal estate that she may s?0n\tVe°üme “Iher i“term®r* queath then or whom she^iea” that to the time of Slight’to enreai^ana Personai, after payment of debts.

Motion. Case 73. The case stated. The statute giving the remedy by motion against public officers and for failing to pay up the revenue in their hands, is the only notice required of a motion, where it is made at the first term after the revenue is due. Where the' amount to be recovered against a Clerk by the Commonwealth, for failing to pay up the public dues is liquidated, no jury is necessary, unless it be rendered so by the nature of the defence .relied on.

Chancery, Case 74. Case stated lathe bill. Defendant’s answer Decre'e' oí the Circuit Court. Devise for life to one who is not capable of taking, will not destroy the estate in remaindel — it will, in. that case, vest immediately on the death of the testator. A devise to a slave who cannot take whilst a slave,' is not therefore void, but will vest so soon as the slave is emancipated, especially when such is the evident design of the testator.

<p> Ejectment. Evidence. Admissions. Conveyances. </p>

Chancery. Case 76. The case stated, A will which is mane ¡[Hite slaves is not rendered invalid by a codicii attached whichthe terms emancipation's to become effec. clearly defined, Slicefito be paid tiieir6 liberty1 thoughthe codd only6 one'6w!u n?ss*

Chancery. Case 77, The case stated, when a demur-f?r t0 a deeiaraare$led togethoverruled,mUand jrieudes Meas and found for plaintiff, if the issues made involve the fact omitted or defectively stated. in the declaration, the error of the Court in- overruling' the demurrer, will be cured-by the verdict, When issues are foirned involving a fact necessary to sustain the claim of plaintiff, and the issue is found for him, and the evidence not certified, the Court will presume it…

<p>Appeal from the Meade Circuit.</p> <p>Chancery.</p> <p>Case 78.</p> <p>The ease stated,</p> <p>Decree of the Circuit Court.</p> <p>One partner holding the exclusive possession of partnership estate, and refusing to admit the other partner, is in equity, responsible to his partner or his vendee, ior the value of the use of the thing so withheld.</p> <p>A purchaser agreed with the owner of property sold under a decree, to permit a redemption by payment of the purchase money by a particular day, but the purchaser left home to avoid the payment, the owner or his vendee paid the money into the Cleric’s office as agreed on by the purchaser and defendant ; the Chancellor permitted a redemption.</p>

<p> Mesne Profits. Ejectment. Limitations. Bank Costs. </p>

Chancery. Case 80. The case stated as agreed by the parties.

Circuit. Quo Warranto. Case 81. The ease stated. The statute of 9 Anne, G. 20, which gave an information in the nature of a writ of quo warranto, in the name of the Attorney General, is not in force in Ky. norany'statute of similar provisions. The power to establish toll gates on the puelio roads in Ky. is grantable by legislative authority alone. The remedy for such usurpation is by a procedding in the name of the Commonwealth, not of an individual.

Chancery. Case 82. Partners in a contest behvhen themselves for setting the partnership, ought to show that disburse me n t s made by each was made for the use and benefit of the firm espe. ciallyifnotmade in the name of the firm. This Court will not reverse because the Court below, not being satisfied as to the proof of items claimed by one partner, had not finally decided upon the case as Jo them, but referred that matter to an Auditor for further proof.

Chancery. Case 83. The casestated. Decree of the Circuit Court. A widowadm’rx. with four or five children, married and kept the possession of the slaves, two in number, and the increase of one until the arrival of the children of age or marriage, clothing and educating them — Held that the value of the hire of the slaves after deducting the one-third, the widow’s dower,.was not more than adequate compensation for raising the children.

Covenant. Case 84. The case stated. A mortgage was given to secure several notes, the assignment of the mortgage and part of the notes intended to be secured, does not pass the other notes not assigned. The declaration of a partner of a decedent, who had no interest in the matter in eontioversy, are incompetent against his adm’r. it is but [hearsay evidence.

Chancery. Case 85. One surety cf a non-resident drbtor cannot by bill and attachment in chancery, draw from, another who is surety for such debtor in a distinct demand, any funds which he may owe the non-resident, to the prejudice of such surety. One of two’ sureties in distinct demands, Cannot attach a fntod in the hands of tan-other,. by bill, and thus ieave liim without indemnity.

<p> Attaching creditors. Priority of lien. </p>

<p>Error to the Marion Circuit.</p> <p>Assumpsit.</p> <p>Case 87.</p> <p>Tie case stated.</p> <p>Demurrer and pleas were filed, the demurrer overruled issues on the pleas, and found for plaintiff. If the issues involved the questions -made upon the .declaration, and they were found io,r the plaintiff, and the declaration, by liberal intendment or implication in its general averments, can be regarded as containing the proper averments, the verdict should -not 'be disturbed, unless the Court improperly instructed the jury.</p> <p>Eacts held sufficient to show due diligence in bringing suit.</p> <p>Facts held sufficient to show diligence in issuing execution.</p> <p>The failure of the assignee to issue execution for seven -days after it might have issued on his judgment, without any excuse fora delay Held to be such want of diligence ss exonerated the as» sisnee.</p>

Appeal prom the Franklin Circuit. Replevín, ‘Case 88. The statute of 1842, (3 Stat. Laws, 603,) does not restrict a tenant reélrainedupon by his landlord to a suit ágainst him alone, he may-sue the officer also. Although the officer levying a distress warrant for rent in arrear- may be justified by the warrant for the taking, yet there should be no return unless the pleading and finding of the jury show that rent was due and in arrear at the emanation of the warrant.

Chancery. Case 89. The ease stated. Decree of the Circuit Court. It was not ad abuse of discretion by a Circuit Judge to permit an answer to be filed, allho’ the leave had been refused a year or two befoie,when complainant had butreoently filed a.n amended hill.

0As’Eo Case 90, Íhí case stated.- Judgment of the Circuit Court.

<p> Seminary claims. Actual settlers. Redemption. Patents. </p>

Chancery. _ Case 92 v*. Case stated in 1 e 4 Morgan’s-devisees v* Parker. Parker’* answer. 1st decree of the Circuit Court, °¿pep°^0UIt versing it. Amended bill filed. Parker’s answer. 2d decree of Circuit Court dismissing complainant’s bill. 3d decree of Circuit Court. ' Bill in this case, H. Marshall’* answer. J. J. Marshall’s answer. Morgan’s devisees’ answer. Decree of the Circuit Court.

Fa. Case 93. The case stated. Sci. fa. vs special bail, plea that at the date of the undertaking the princi. Euyíndtiie° swié execusatisfy plaintiffs pEruEereof, and u^EE proof’Xt principal had a negro boy of val* ue sufficient ursPjíídgeraEntj Nynuffwas en-tilled lo a ver* diet; tho’ princi** Sebis°greatiyeEEE^nheXy™1 Statutes tiled bearing upon,'he question of Bail, in civil eases.

<p>Appeal from the Woodford Circuit.</p> <p>Ejectment.</p> <p>Case ’94.</p> <p>A deed of con. •veyance lo Iwo by a common boundary, ^ yfct discrimina ting •with regard lo the interest conveyed to each, respectively, is lo be construed as convening to, and vesting in, the grantees respectively, distinct though undivided interests and creates a tenancy in common, nota joint tenancy.</p> <p>Tenants in common may maintain separate actions of ejectment for their interests, so may joint tenants, i n-less the exception be made before the trial.</p> <p>A verdict in favor of one or more tenants in. common, which does not designate the extent of the interest found to belong to the plaintiff or plaintiffs, is defective and a judgment thereon cannot be .sustained.</p> <p>Parol proof ot a seveiance between tenants in common, is sufficient in ejectment to show a separate title in a particular part.</p>

<p> Usury-. Limitation. Assignee and assignor.- </p>

Covenant. Case 96. The case stated. A covenant purporting lo be by A. B. E. to which, is added, I, J. E. P. will be security of said A. B. E., and signed both, is the joint covenant of both, and they may be jointly sued. In a covenant for the payment of a specific sum on a particular day, it is right that the jury calculate interest on the same up to the time of rendering their verdict.

Eiectment. Case 97. The casestated, The -possessession of dand intended to be within a particular survey, but ‘by mistake ofthe possessor extended beyond such survey, butby no ■marked boundary, though held for 20 years gives no right to hold beyond the actual inclosure.

<p> Deeds of gift. Fraud. </p>

<p>Error to the Bath Circuit.</p> <p>Debt.</p> <p>Case 99.</p> <p>The case stated.</p> <p>The Circuit Court has the power, ia his discretion, to have juries summoned and empannelled to try causes after the discharge of the regular jury;</p> <p>—Though there should be no wanton departure from the regular mode contemplated-by the statute, of summoning and selecting juries.</p> <p>The obligors in an injunction bond are liable if the injunction be dissolved, tho’ no damages or costs were adjudged against the principal.</p>

Assumpsit. Case 100. The case stated. The.assumpsitof the -widow to pay-a debt of the husband, though for building on -ground which she owned as tdower in the estate of a first ■husband, was a collateral promise -to pay the debt of another and within the statute of frauds unless in writing.

Chancery. Case 101. The case stated, A mortgagor became the purchaser of real estate sold by the agent of mortgagees, gave his note for the price, and took possession; the note given for the price was lost; suit in chancery was brought by mortgagees to recover the amount of thelostbonds, defendant relied upon the statute of frauds and perjuries — Held that the defence could not avail, as the suit was not brought on a parol contract lor a sale of land and as the consideration…

<p> Fraud. Limitation. </p>

<p>Appeal from the Mason Circuit.</p> <p>Chancery.</p> <p>Case 103.</p> <p>The ease stateá.</p> <p>Absoluta conveyance was made ot a tract of land, and a Bond given to re-convey on the payment of a certain sum within one year. After the lapse of 38 years, the Chancellor should not interfere at the instance of the grantor, the delay being wholly unaccounted for.</p> <p>The claim is not aided by the fact that complainant 19 years before, had brought the subject up in a cross bill in another suit between the parties, which was neverprosecuted by complainant, suffered to be dismissed, and especially as it varies entirely from the facts admitted in the answer to that cross bill.</p>

Moiiotc Case 104’. íhe casesiated. It is a contempt of the authority of the Chancellor for either party to the chancery suit to wrest from the officers of the Court, property attached, and in the custody of the law even by common law process, and the Chancellor has the power, and ■will order its immediate restoration. upon motion. .

Chancery. Case 105. The case stated. Decree of the Circuit Court. Plea to the jurisdiction, answer filed together, the answer insisting upon the want of jurisdiction-Held that the answer not waiving the question of jurisdiction, that the Court should decide it.

<p>Appeal from the Green Circuit.</p> <p>Eiectment.</p> <p>Case 106.</p> <p>«The ease stated.</p> <p>ik 'fi. fa. was leaifd he'id'up^by .neaily'Tyears1 at the expiration of 17 months from the levy, a Sade^in g'ood faith, vyithout a the levy, and madetauimexpiration of Ihxes .years, the execution is relumed, ■a venditioni -ex-ponas issued and plaintiff ¡purchased and held ■Sheriff's deed —Held that (he purchase from the defendant in the execution could not be disturbed and overreached by the plaintiff under his purchase un■der the vendilw.ni exponas.</p>

<p>Casé, Jurisdiction. Waste.</p>

Chancery. Case 108. Case stated in 4he bill. Answer and cross bill of the defendant., Decree of the Circuit Court. The Court of Appeals has no power to reverso a decree for a divorce. Prominent facts appearing in the record. ^Mi^decree of divorce . aIncfon her cross cre^fo^ihe^roperry she had at the marriage, worth ^ about Consistingestaof ”2ora®i6 000 — Held that a decree for outoftheestate of the husband,

Chancery. Case 109. Th e persons of color referred to in the statutes of 1824 and 1828, (1 Slat. Lam, 259 and 60,) mean such pet-sons of color as are slaves only. Process served on the owners of the boat. Answer of the master of the boat, contesting the constitutionality oí the slat-sites of Iiy. of .3824 and 1828. Slaves escaping from their owners remain slaves into whatever Slate they may be found.

Chancery. Case 110. The case stated. Decree of the Chancellor. M complainant asking equity-will be required' .first todO equity. The husband cannot, assert an interest in right of his wife in a Court of Equity, ■without making her a party. -The failure to máke the necessary parties m the original suit, held to be a sufficient ground of reversal on bill of review.

<p>Appeals from the Campbell Circuit.</p> <p>Chancery.</p> <p> Case 111 </p> <p>The easeBtated,</p> <p>Mistakes in settlements made by Commissioners, made upon settlements with collectors of county levy, are propei ly corrected at the instance of the sureties, by the Chancellor.-</p> <p>The Chancellor ■will1 not correct the errors of the County Court iu rejecting the delinqu'ent list of a collector of county levies.</p>

Chancerí'. Cass ÍÍ2. The case stated. The Chancella?' will not decree* the sale of an interest, though vested, of a devisee in an estate' consisting of land, slaves and personal estate, which by the will is to be sold on the happening of a certain event,- and the proceedsdivided between several persons,■until the event occurs.. The Chancellor has jurisdiction, to render a decree in favor of a surety against his principal for money paid as Stieh.

Chancery.- Case 113. ¥ha case stated. A creditor purchased a tract of land under his own execution, and refused to comply with the terms of the sale, afterwards purchased at a second sale, at a reduced price— Held that lie could not hold under the last purchase, but that so much of the land should be re-sold as ■would pay the debt, &c.

Assumpsit. Case 114. The case stated. In an action of assumpsit for the price of chattels, iron and nails, sold at a fixed price with warranty of quality, it is competent fonthe.defendanf to prove, to reduce the damages, that .(he,articles iw.ete (Q.f inferior duality, and.not such as they «sere warranted ito ibe.

<p>Error to the Louisville Chancery Court.</p> <p>Chancery,</p> <p>Case 115.</p> <p>The sale of cash notes for less than their nominal amount is not in violation of the statutes against usury.</p> <p>The assignor is only liable upon his assignment, to refund the consideration received for the assignment and interest, after due diligence by the assignee to recover from the obligor: (3 B. Monroe, 67.)</p> <p>The assignor took back an assigned note and gave notes with security, for the sum advanced, with legal interest, and- $300 more — Held that this was not a sale of notes and was usurious6* not recoverable,</p>

Ejectment, Case 116. The case stated. Á deed1 thb' fitylecorded, passes the whole title of the grafllor,- and non’e but bona fide purchasers without notice or creditors, liave any benefit from the failure of the grantor to. place the dfeed’ upon record,- a purchaser from the heir or devisee of the vendor is not protected.

Debt. Case 117. The ease stated, It is competent ^bLirupt’ina lfterasaMsthdis’ charge, upon his pleaded^to reply and show that it was fraudulently-obtained. A certified copy of the inventory of a voluntary bankrupt, is competent evidence for plaintiff. If it has been amended defendant must show it.- -

<p>Error to the Spencer Circuit.</p> <p>Chancery!</p> <p>Case 118.</p> <p>The will of Offutt.</p> <p>The testator made a nun cupative will, in which these words were used: “I bequeath to my beloved wife all my moneyed asíate, and all the negroes which I received with her, &e.” The testator owned no lands, but was a money lender, had cash notes formoneys lent and had some slaves— Held that his (moneyed estate embraced his money, cash notes, and securities for money.</p> <p>O.'devised to the Catholic Church $500, to the Baptist, Presbyterian, and Meiho■dist Churches, each, $100— Held that as there was a church of each denomin a t i o n named, in the village of the residence of the testator, that they were the ■objects of the testator’s bounty, and toolc legacy.</p>

<p> Supersedeas. Executors. </p>

Will Case. Case 120. The ease stated, To establish_ a nun cupative will, it should prooPoftSo witnesses, that it was the mtention of the dscewill, at the time specified, no set iorm of words is necessary to prove the purpose or terms of the will. It is not indispensable that the publication of a nun cupative’ will should take place in presence of the two witnesses contemplated by the statute, at tho same time.

Appeal prom the Mason Circuit. Chancery. Case 121. ■She case stated, If a lien exists in favor of the assignor of a bond for title to land, against a remote assignee with notice, it is in analogy to the lien of a vendor who has conveyed by absolute deed,.and can be carried no further.

<p> Rescission of Contracts. Lapse of lime. Practice in Chancery. </p>

<p>Rescission of contracts. FraudL Jurisdiction.</p>

Chancery. Case 126. The object of the bill. Decree., of the Circuit Court.

ClIANCERY. Casts 127. Case stated and decree of the Chancellor. By the statute of 1792, (1 Slat. Laws, 316,) it is obviously intended to make real estate descended lo heirs subject to the payment of the debts oí the decedent. The statute of 1819, (1 Slat. Laws, 780,) authorizes a sepa, rate action against heirs when no administration is granted for 12 months after death of debtor.

<p> Equity jurisdiction. Non-resident debtors. Trustees and trusts. </p>

Chancery. Case 129. The case stated. The city of Low isville is liable to undertakers bycontiact, with her orders, to those who make, improvements m the .city, when through the neglect of those organs the lien guarantied, proves ineffectual.

the Jefferson Circuit. Eiectment. Case 130. A deed of trust made by the wife on the eve of her marriage, conveying her estate to á trustee iorher separate use, not to be subject 1o the debts of the intended husband has after the marriage and death of the husband had its effect, and the property reverts to the widow, and in case of her death to her heirs.

Assumpsit. Case 131. The appeal was to the Circuit demaúdedlnThe over£5 beins A Justice of the impose Afines where he has no jurisdiction, receive and retain is liable6 tó the party paying as andreceived, to pártyUfined. 6 Peace rendering judgment for fines, to justify their act, must, when sued, produce the record, or show its loss by some inevitable casualty. —But if the record is proven to have been lost it must be clearly proved that there was a conviction of an offence…

<p>Error to the Boyle Circuit.</p> <p>Covenant.</p> <p>Case 132.</p> <p>The ease stated.</p> <p>The liability of the obligor in the bond required by the statute, on sueing out a ■writ of replevin, is in case of failing to restore the property and pay the damages assessed in the action of replevin, costs, &c. not extra costs of attorney’s fees, &c.</p>

<p> Practice. Process. Abatement. </p>

Chancer?; €ase rSÜ?, She-cust stated, B. Sand W. bet upon a hoise race, B. won W’s.. horse as a torfeituponW’s. failure to run, some months afterwards W. bought the horse of B. and gave his note — Held that this transaction is subject to the statute against gaming, and the Chancellor will relieve against the note.

Ejectment. Case -135. After verdict, when the date of the demise is imperfectly stated, (as 184 for 1840,) the Court will not presume a date intended which would show the demise to have expired before suit brought. The tender of the money for land sold within the year, when it is redeemable, renders ineffectualasubsequent deed by the Sheriff to the purchaser.

<p>Error to the Louisville City Court.</p> <p>Chancery.</p> <p>Case 136.</p> <p>The ease stated.</p> <p>The Mayor and Council of Louisville have the tracts which they intend to prevent by their ordinances, and is the offenoe.ed</p> <p>The Mayor and Council .of Louisville have not provided for forestalling without the. city, nor within the city, except so far as that is done by prohibiting a resale within the’ city of articles bought without by citizens.</p> <p>-IFire Mayor anil pXer tohTnfl\ct 011 'vending at mar»ket artictesmot the product o? -vendor,</p>

<p> Motions. County creditors. County collectors. </p>

Covenant. Case 138. The case statedi- Suit is prematurely brought on a* bond gi/en fox the foitheoming of properly aiLached, when the Chancellor has not disposed of the case, and remitted the party to his remedy on the bond.

Pet. & Sum. Case 139. The case stated, Judgment of the A partial assign* ment of a nota transfersno right of action to the assignee. The laws of a sister State regulating set-offs, can have no operation in this State, in a suit ■on a note. Set-off is connected with the remedy which is governed by the .law ofthe-forum. ■and not by the lex loci {'contractus. .'Obligors in .-a note given to a corporation are estopped to deny .-the existence o'f the corporation.

<p>Error to the Warren Circuit.</p> <p>Chancery.</p> <p>Case 140.</p> <p>The case stated.</p> <p>A creditor in legal contemplation is one who has a judgment, and sued out execution before notice of an unrecorded mortgage, and unless placed in that attitude before notice, cannot successfully attack an unrecorded mortgage.</p> <p>A junior mortgagee rvith full notice of a prior mortgage, admitted to record tho’ upon insufficient authentication, cannot overreach the prior mortgage, when he is not a judgment creditor, with an execution levied.</p> <p>A mortgage exhibited in the-pleadings, on bill to foreclose, read without objection, not denied below, cannot be excluded! here.</p>

Detinue. •Case 141. The ease stated. ’Instructions -of the Circuit ■Court. A purchaserrvho 'is a creditor* may ■bona fide, purchase property from his debtor, tho’ he may know that the object of the debtor is to defeat other creditors.

Covenant. Case 142;. SüBstance of the’ ü-XÍlCle OX meat sued, on.- AvsrmentsinuHe' declaration-. a plea is filed when there is but one count in. a declaration, and a demurrer is sustained to the plea and another count is then added to the declaration and judgment by default, and an inquiry of damages.

Pet. & Sum. Case 143. The cus», stated. F¡ret qnest¡D1I presented, The holder of a may°f ffn^up a blank , ?n dorsmenttohimself even at the same^flTcTas^if done before the, institution of' the suit' So any bona fide holder of a bill payable to --, may insert his own name as payee,, and when done it will be deemed a bill payable to such holder ab initio, ss' assignment ,.or endowment of a mu by a Jo-when^the'name of the payee is ihority to put in endorser & as í1®5'®6,…

Chancery. Case 145. l'he employment Of, and bidding by a by-bidder, is not always a Sufficient ground to rescind^ the contract; it is entitled to but little weight where the price is not exhorbitant, and there has been, a long acquiescence by the purchaser. The question whether it is a ground in any case, to rescind because one by-bidder was employed to prevent a sacrifice, left undecided. The derivation of title made out by vendor not good.