Volume 47 — Kentucky Reports

<p>Error to the Jefferson Circuit.</p>

<p>Error to the Bath Circuit.</p> <p>Sci. Pa.</p> <p>Case 2.</p>

<p> Ejectment. Pleading. Practice. New trial. </p> <p>The addition of a new demise in a declaration in ejectment after it is filed, if there be no effort to prove title in the name of the lessor in the second count is no ground for-awarding a new trial.</p> <p>Though a conveyance do made to a wiong person through mistake, the tit e passes, and it will not avail the defendant i'n ejectment to show that the title was made to a person different from the one intended to be the grantee*</p>

<p> Bankrupts. Assumpsit. </p> <p>Case stated,</p> <p>Tho promise of a certificated baniknup't, 10 pay a debt due by note befoie his ‘bankruptcy, will not authorize an action upon the note.</p> <p>- — But if the debt were due by simple contract, a promise of the bankrupt after «discharged, to pay, will authorize assumpsit Tipon the new promise, based upon the origin•al consideration. Argu.</p>

<p> Fraud. Creditors and purchasers. Evidence. Authentication of deeds. </p> <p>Case stated.</p> <p>Sales of slaves and other personal property, where the possession is not taken by the purchaser, but remains with the seller, are fraudulent and void as to creditors and subsequent purchasers; that the purchaser resided with the vendor does not render the actual change of possession less necessary.</p> <p>The fact that the purchaser had notice that a previous sale had been made, will not aifecl his right, if the sate was made to defeat or delay creditors in the collection of iheir debts.</p> <p>A sale is not invalid on the ground ' of duress, from the . factthatthe purchaser had attached,or threatened to attach the property purchasedto enforce the collection of a debt.</p> <p>consMeraUo7 not a sufficient a^ntract which and1 egaTiS^ fair</p> <p>where a writing ÍB executed to a third person who stated aftóVproo^ anitSdeliveiytioS is competent ai contents!>Ve 118</p> <p>The certificate of a Jvstice of the Peace of a sister State, that one who attests a copy of a deed recorded in that State,is Clerk,is not such authentication as will authorize the reading of the copy in evidence. It is necessary that the certificate be by Judge, Chief Jus lice or presiding Magistrate of the Court.</p>

<p> Slander. Pleas and pleadings. </p> <p>Case stated.</p> <p>A plea in action of slander, for charging plaintiff with. committing a felony, which admits the speaking of words charged, but averring other facts which, show the words spojren not to be actionable, must show either that no felony had been committed, and that it so appeared by the defendant’s statements in the whole conversation, and therefore that there was no charge of felony, or that the charge was made known to the defendant by a third person named in the plea, before he uttered the words.</p> <p>The'faet that the same matter ■which is specially pleaded might be given in evidence under the general issue, is not, in slander, always a sufficient ground for rejecting the special plea; but if the speaking of the words be admitted by the plea, but other facts íelied upon which show the plaintiff is not entitled to the action, the. plea is proper.</p> <p>So in actions of torts and on the case, if the plaintiff, where the plaintiff’s right and the act complained of. are admitted,but is excused or justified, it may maybe specially pleaded.</p> <p>The mere statement in a plea slander lhat de» fendant was informed by a third person, without giving the name of such person, that plaintiff had ,/ been guilty as charged, is not a valid defence. It could only be good evidence in mitigation.</p>

<p> Vendor and vendee. Rescission. Conveyances, Evidence. </p> <p>Case stated.</p> <p>Tille of vendor stated. Deeds of more than thirty years standing accompanied by a possession during all that time under the deed, are admissible without proof of their execution, and evidence of title which a vendee cannot reject.</p> <p>A certificate of the acknowledgment of a deed, “before J. T. Mayor, and J. M. Alderman, Justices of the Peace-in and for the city of Richmond,” with the certificate of C. H. as Clerk of the Court of Hustings for said city, with the seal of the court attesting the character of T. as' Mayor and M, as Alderman, and of both as Justices of the Peace, and to which is added the certificate of J T. a Mayor of said city and presiding Justice of the Court of Hustings, certifying the official character oí H. as Clerk of the Court of Hustings, and that the attestation is in due form, is a valid authentication since the statute of 1831, concerning eonveyances. Two Justices of the Peace of a city or Parish have the same power as Justices of the Peace of counties.</p> <p>A spring repiesenled to be upon the tract of land purchased, which from its location and value, could not have formed a decided inducement to the purchase, being found to be without the purchsse will not authorize a rescission.</p>

<p>Chancery.</p> <p>Case 8.</p> <p>Error to the Woodford Circuit.</p>

<p>Indictment.</p> <p>Case 9.</p> <p>Error to the Boone Circuit.</p>

<p> Ejectment. Notice to quit. Possession. Husband and loij'e. </p> <p>The possession ■of the husband, of land under a gift to his wife, enures to tile benefit of the title of the wife, and if continued for more than 20 years, perfects her title, even againstthefather of the wife, the patentee oí the land, who may survive the wife.</p> <p>Tke law 'having intrusted the husband With the preservation of the rights of the wife, will not permit him to hold or to put in possession of another, to be held adversely, any jpiroperty placed in his possession belonging _ to the wife during the .coverture.</p> <p>Where the husband is a tenant 'by the courtesy, bis deed .of bargain and sale conveys no greater estate than he held, and the statute of limitations does no,t commence to run until the death of the husband, against the heirs of the wife.</p> <p>If one who has entered, as tenant or quasi tenant, attempt to setup title under another, lie is not entitled to notice to quit.</p> <p>The verdict in ejectment being for eleven thirteenths, and the judgment for the plaintiffs generally — Held to be erroneous.</p>

<p>Equity jurisdiction. Corporations.</p> <p>$he fact that executions in the name of other peisons than the complainant in thebill filed were returned . “no property,” will not authorize him to call upon the Chancellor to attach effects and debts in the hands of third persons to satisfy complainant’s debt; (7 J. J. Marshall, 302.)</p> <p>Suite at law may be maintained against Turnpike Road Companies as well as individuals. Justices of the Peace have jurisdiction of cases for - breach of contract, where the damages are laid at fifty dollars or under; (3 J. J. Mar. 587; 4 Ib. 171; 4 B. Monroe, 398 )</p>

<p>Appeal case</p> <p>Case 12.</p> <p>Error to the Rockcastle Circuit.</p> <p>B. A. Monroe for plaintiff; Dunlap for defendant.</p>

<p> Bills of Exchange. Instructions. New trial. </p> <p>Case stated.</p> <p>The defence relied upon.</p> <p>The substance of the evidence and finding of the jury, &c.</p> <p>It is proper for the Court to modify or add to instructions asked by a party, to meet the Court’s opinion of the law of the case.</p> <p>The delivery of a bill of exchange to the friend of a party for his use and benefit, is presumed to pass the right, unless the party disap* prove-and if ratified, the ratification relates back to the time of delivery.</p> <p>T. being indebted to R. drew a bill upon E. which was endorsed by F. and placed in the hands of R. to raise funds. B. after the day of payment and protest, endorsed it to H. who sued the drawer and endorser— Held that they were liable to the endorsee.</p> <p>An affidavit for s new trial should alledge that the witness, by previous statements deceived theparty as to what he would swear, and that the party could prove the facts to be' different by other.' evidence.</p>

<p>Limitation. Sureties-. Obligations,</p> <p>Case stated.</p> <p>The case of Lawis vs Harbin and Downing, (5 B. Monroe, 564,) cited and approved.</p> <p>The act of 1838, (3 Stat. Law, 558,) places •sureties in .all ■writings whether ■sealed or unsealed, upon the same footing, and sureties in all are released when there is a failure to sue within the time prescribed by the statute.</p>

<p>Error to the Franklin Circuit.</p> <p>Chancery.</p> <p>Case 15.</p>

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

<p> Attachment bonds. Pleading.- Case. </p> <p>Case stated.</p> <p>The mere failure to prosecute a suit in chancery connected with an attachment, is not a forfeiture of the bond required to be given by the statute..</p> <p>the defendant’ order for attachaenconditfonUof iateeJ_ond j® causes ¡pledged exist, theattachfuify ^Enea— that the paity believed them to exist is not_ the ful1 or wrongful taehment^16 and ibe feet of whethof the bond is violated or not.</p> <p>In an action upon a bond given upon suing out an attachment in chancery, the plaintiff has a right to recover only such cost and damages as he has sustained in consequence of the wrongful issual of the attachment, by being deprived of his property, and costs and expenses incurred.</p> <p>If the party seeks to recover for an injury to credit, business, &e.,he mustsueincase.</p>

<p> Joint actions. Debt. Covenant. </p> <p>Case stated.</p> <p>Though a bond executed to several as obligees, yet if there be separate rights and interests secured, each may maintain a separate action of covenant for redress, (3 Dana, 66; 4 B. Monroe, 33.) But it debt be brought and the whole penalty recovered, no other action can be brought, (1 Marshall, 514,) hence one of several obligees may not bring debt for his separate injury.</p> <p>The penalty of the bond gives jurisdiction to the Court, and not the damages recoveted!mOUIlt</p>

<p> Wills. Devises. Trusts. </p> <p>Case stated.</p> <p>Oiicuit Court, Decree of the</p> <p>The substance of W. Pope’s will.</p> <p>Where a testator provided by his will a fund of $25 per month for the support of a son, and placed it in the hands of a trustee for the son, & imposed upon the trustee the duty of supplying the support.Held that the trustee could not without violating the trust, commute payment, nor could the Chancellor decree the payment of any part of the monthly support, which was not fully due, to the payment of a debt for which the cestui qye trust or beneficiary was surety.</p> <p>There is nothing immoral or unconseientious in a father providing a trust fund for the support of his child, which shall not be made liable by the Chancellor to pay the debts of the son.</p> <p>—This is not in conflict with the statute making subject estates holden in trust to the payment of the debts of the cestui que trust.</p> <p>The statute of 1796 did not intend to subject money held in trust, to the payment of the debts of cestui que trust. The act of 1821 goes -further, and was an extension of the power of the Chancellor in subjecting equities to sale.</p> <p>Neither the statutes of 1796 or 1837, authorizing proceedings against non-resident or absent ■defendants, authorize a proceeding against any thing in the hands of a resident debtor of the absentdebtor but lands, debts or effects, which do not embrace a monthly suppoit provided for the absent debtor by the will of his father, to be paid by his exeeator.</p>

<p> Executors. County Courts. </p> <p>Case stated.</p> <p>"When the testator directs that his executors be permitted to qualify without giving security, can the County Court, at the instance of a legatee or devisee, require the executors to give such security or surrender the estate ? — Quere.</p> <p>If they cando so, it can only be done upon showing that the ex-ecutorswere less responsible than when the will, was proved.</p>

<p> Consideration. Pleas and pleading. Baptist Education Society. </p> <p>Ca'ss stated.</p> <p>The pleadings.</p> <p>The Courts of Ky. are bound to take notice of private statutes; (1 Marsh. 369.)</p> <p>A subscription to the Baptist Education Society, to aid in the object of its organization, is obligatory, the obligation to appropriate the fund according to the charter, devolved upon thepayee or trustees, and the liability incurred upon the faith of the subscription, constituted a sufficient consideration for the undertaking to pay the subscription.</p>

<p>Chancery.</p> <p>Case 22.</p> <p>Appeal prom the Clarke Circuit.</p>

<p>Debt.</p> <p>Error to the Madison Circuit.</p> <p>Case 28.</p>

<p>Appeal from the Marion Circuit.</p> <p>Pet,. &'Sum..</p> <p>Case 24.</p>

<p>Chancery.</p> <p>Case 25.</p> <p>Error to the Hardin Circuit.</p>

<p>-Ejectment.</p> <p>pq.se 26.</p> <p>Error to the Hardin Circuit.</p>

<p> Inquisition of Lunacy. Limitation. Unsound, mind. </p> <p>Persons non compos mentis are not affected by the statutes oí limitation, until two years after the disability is removed.</p> <p>When a defendant in an inquisition of lunacy is brought into Court, and the inquisition held: in open Couit, there is no necessity for either notice or writ.— The Chancellor is the protector of persons of unsound mind, and it will be presumed that he has done his duty.</p> <p>It is only in oases where inquisitions of lunacy are held in the country, that it is necessary for the inquisition' to be returned under the hands and seals of the jury.</p> <p>Although the inquisition find the defendant to be neither an idiot or a lunatic, but only that he is mentallyandphysically incapable of managing himself and his affairs, by reason of disease and old age, yet the Chancellor has power to appoint a committee. Naylor vs Naylor, (4 Dana, 339.)</p>

<p> Sheriffs. Pleading. Damages. </p> <p>Duplicity in pleading is not an available oberaidemm-rer?11"</p> <p>sented^by6 P*e" plea meets a degations of the defect3 w°itf te cured, and no longer available.</p> <p>That the considjudgment had cuseforS a sheriff’s failing to levy an execution upon the judgment</p> <p>The measure of damages against a Sheriff for failing to levy an execution, is the injury sustained by the creditor in consequence of that failure. If the whole debt is lost, then the amount lost is the injury. If the debt is not wholly lost, then only damages to extent of the injury, to be left to the jury upon the evidence.</p>

<p>Debt.</p> <p>Case 29.</p> <p>Error to the Garrard Circuit.</p>

<p> Marriage. Dower. Limitation. Fraud. </p> <p>Case stated.</p> <p>The answer of defendants made a cross bill.</p> <p>Decree of the 'Circuit Court.</p> <p>Cohabitation and the recognition of the parties as man and wife, is competent evidence to establish marriage in a civil suit.</p> <p>A marriage by a man who has a wife living, is null and void absolutely, and in virtue of such marriage the second wife acquires no claim to dower, as she i is not a lawful wife; (Raper on Husband and wife, 333; 2 Dana, 105.)</p> <p>A man having a ■wife in Maryland married in Ky. in 1817, subsequently the wife in Maryland died, and he continued to live & cohabit with the wife in Ky. and recognize her as such until 1838, when he died— Held that the Court will presume a marriage in fact after the death of the Maryland wife, and give dower to the last wife; (2 Kent, 87; 3 Marsh. 369.)</p> <p>The statute of limitation, does not commence to run against a claim for an in* jury growing out of a fraud, until the fraud is discovered.</p>

<p> Husband and wife. Alimony. Bar by former suit. </p> <p>Casesta'ed.</p> <p>Though the law does not require the conduct of the wife to be entirely blameless, before she can be entitled to alimony, yet if it appear that she is the chiefcause of all the dissensions in the family & pursued towards the husband a systematic course of petty annoyances to harass and distract the husband, the Chancellor will withhold the Jiand of relief to her claims.</p> <p>It is the policy of the law to impress those who enter into the marriage relation, with the idea that it is to be as permanent as their lives.</p> <p>That a wife continued to live withher husband after acts of violence, is proof that she did not consider herself in danger.</p> <p>A decree dismissing a bill for alimony, is no bar to another suit founded upon subsequently accruing causes.</p>

<p>Debt.</p> <p>Case 32.</p> <p>Error to the Christian Circuit.</p>

<p>Assumpsit.</p> <p>Case 33.</p> <p>Error to the Campbell Circuit.</p>

<p>Chancery.</p> <p>Case 34.</p> <p>Error to the Union Circuit.</p>

<p> Assignor and assignee. Diligence by suit. New trial. </p> <p>Case stated.</p> <p>A suit by assigfte'e' sfi-ould be brought in the eo'un'fy of the residen-ee of the obligor in the note assigned, if his re'si'deirce has been changed since making the note, it is the duty of the ossignee to use diligence to ascertain the county of his residence' and there bring the suit.</p> <p>When the assignee brought suit in a county in "which the debtor did not reside, and when the Court sat one-month later tliam in the county of the debtor’s residence, and' when judgment was recovered, sued out execution to the county where the judgment was obtained, and delayed for four months to sue out execution to the county of debtors residence — It was held that all recovery upon the-assignor was lost by the negligence in the assignee. Can any other person than the assignee of anote sue the assignor at law, to render the assignor liable? — Queue.</p> <p>Where partners sue un ease and the general issue burthen^of proof the plaintiffs P<to show every fact necessary to maintain their which they°must m?se6a\otatPthé whole of them, ofherexoeptions certified to this Court, does not contain all the case, this Court the^eclsion^of the Court below ingrantinganew trial, was wrong,</p>

<p> Steam boat liens. Attachment. </p> <p>Case stated.</p> <p>The statute of 1839, (3 Stat. Law, 112,) gives no lien except to officers, &c. on steam boats within the State of Ky. — it gives none to such as had been officers on boats without the State, upon the boat coming into the State.</p> <p>The bin, though ¿sed, not oon^fiegaturns, entitle the complainant to no relief.</p>

<p>Error to the Meade Circuit.</p> <p>Chancery.</p> <p>Case 37.</p>

<p> Corporations. Chancery jurisdiction. </p> <p>Casa stated.</p> <p>Courts of equity have no power to annul or revoke charters.</p> <p>Answer and decree of the Chancellor.</p> <p>Proposition to file an amended answer rejected.</p> <p>The Chancellor cannot, at the instance of one, or of a minority of corporators, interpose to prevent an appropriation of the corporate fund to the purposes for which it was raised, against the decision of a majority of the managers appointed undei the Charter, whatever he might do at the instance of the majority.</p> <p>Where the sub-under a charter ad^quate^o*1 the P?rP?ses.. for subscribed, and for upwards of pi“ntyemrectora or to appropriate-the fund subscribed according to the charter, and the object contemplated by the charter abandoned — Held that such of the subscribers as on the faith of the abando ument, changed their circumstances & weie^ no ^longer object, could not pay°°theirlesub° scription.</p>

<p> Motions. Constables. </p> <p>A Constable who iails to return an execution for 30 days after the return day, is liable on motion, to the plaintiff for the amount of the execution and 30 per cent. The fact that the Constable had endorsed that a part of the amount of the execution was made by a sale of property, does not render it proper to exclude the amount so reported to have been made, in the calculation of the per centum, unless the same had been jiaid to the plaintiff.</p>

<p> Specific performance. Conveyances. Jurisdiction. Publication. </p> <p>Case stated.</p> <p>The Courts of chancery in the counties where lands are situated,^ have jurisdiction to decree conveyances thereof by non-resident and unknown heirs, due upon the obligation of the ancestor. Hynes vs Oldham, (3 Monroe, 266,) Dicken vs King, (3 J. J. Marsh. 591.)</p> <p>A certificate of one styling himself editor of a newspaper that the order of publication “ had been published eight weeks successively in his paper since the last term of the Livingston Circuit Court,” (the order being made at the March term, 1817, and requiring an appearance at the June term next, and the certificate dated Sept. 13th, 1817,) is wholly invalid, it not appearing therefromwhethex the publications were before ox aflex the June texm; a decree based upon such notice was void: (7 Monroe, 658; 5 J. J. Mar. 236:) See Hardin vs Strader, &c. (1 B. Mon., contra.)</p>

<p>Appeal prom the Green Circuit.</p> <p>Debt.</p> <p>Case 41.</p>

<p> Bailment. Bailee.- Diligence.- </p> <p>Case stated.</p> <p>A consignee of salt in barrels, stored it in his warehouse im Louisville to be sold on commission; an entry was made by pulling off a plañir, opening the door, and at three or four different times, a large number of the barrels stolen — Held that the consignee was liable, not having used ordinary diligence to preserve the salt. i</p>

<p>Debt.</p> <p>Case 43.</p> <p>Error to the Jefferson Circuit.</p>

<p>Chancery.</p> <p>Case 44.</p> <p>Error to the Louisville Chancery Court.</p>

<p> Domestic bills. Orders. Days of grace. </p> <p>Case stated.</p> <p>Orders for money in Kentucky, must be presented for payment, and due diligence used — a failure to do so, will discharge the parties: (4. J. J. Marshall,61.) Every foreign or domestic bill of exchange must be payable at all events — not dependent upon a contingency, or out of a particular fund, and be payable in money only: (Chitty on Bills, 44.)</p> <p>Orders to be negotiable must be of the same character, and have the same requisites. An order drawn upon the Treasury by a public officer for his salary, is not a bill of exchange.</p> <p>Orders for money, or domestic bills of exchange must be treated as other bills of exchange. Days of grace are given upon them; and allho’ never presented for acceptance, demand of the drawer, must be upon the third day of grace: (1 Peters, 25; 12 Johnson.)</p>

<p>Error to the Jefferson Circuit.</p> <p>Replevin.</p> <p>Cqse 46.</p>

<p> Husband and wife. Settlements. </p> <p>Case stated.</p> <p>The wife has an equitable right to suitable settlement out of her estate for herself and children. The Com ts of Kentucky-will therefore, presume that such a right would be recognized bytbe Courts of Mississippi.</p> <p>Where the husband does that in the way of providing for his wife, by settlement out of her own property, which the Chancellor would do, it will be upheld by the Chancellor.</p> <p>And in such case the Chancellor will not enter into a minute calculation to ascertain “the least possible sum upon which a wife tenderly raised, and her children, could be sustained.”</p> <p>A settlement made in behalf of a wife and children, out of her own property, cannot be affected or reduced, from the fact that from the bounty of other relations, she may have been placed in such circumstances as not to stand in need of the provision made by the settlement.</p>

<p> Conveyances. Husband and wife. Joint tenants. Parceners. Limitation. </p> <p>The eases stated as agreed, and the decision of the Circuit Judge upon the law and facts.</p> <p>The character of the claim of title by lessors of the plaintiff, as heirs of Mrs. Fauntleroy, and devisees of Mrs. Harrbd,</p> <p>The clerk’s certificate upon the deed to James George adjudged insufficient.</p> <p>ío constitute .a valid acknowledgment of a feme covert, so as to pass her right in land, it is indispensable that she he privily examined, and upon such examination should fred™ and^wil^"^eed *andthe certificate of the these mate-[^exp^ess terms be clearly impli-</p> <p>As clerks in taknowledgmentof teriallyCtitisnot ®¿'®cientjf jjja* the acknowledgbut and^ declarations</p> <p>The certificate stapp6 deofarel J¡Jg(£e defeoUve</p> <p>The certifícate upon the deed t® Ramsey held to be valid': (3 Dana, 111: 5 B. Monroe. 481. )</p> <p>A deed properly acknowl edged for record, is to be taken as if recorded from the date of its deposit.</p> <p>The deeds for the land in contest in the five last cases.</p> <p>The certificate on the deed to Holtzclaw.</p> <p>To a deed of confirmation the clerk certified thatit was shown and explained to the feme on her privy examination, that she acknowledged, desired not to retract it, and consented that it be recorded, it was held valid to pass the title of the feme.</p> <p>Where a conveyance was made by husband and Wife, and possession taken under their deeds, of land claimed by the wife, though after the death of the husband: Miller vs Shackleford, (3 Dana, 289; 4Ib. 264; 5 B. Monroe, 471.) the deed be Inefthe^L^/fhe feme>. the grantees m the deed are estopped to standLg ntle'iii a * contestS°with titejtei™ of the ~ -</p> <p>Where a feme covert who was a parcener, united with her husband and purported to convey the whole estate in fee, in lands, and their grantee took possession under the deed and held for more than twenty years — Held that an ouster mightbe presumed and the other parcener barred.</p> <p>One tenant in common claiming the whole estate and denying the right of his co-tenant, and refusing to pay any part of the profits to the co-tenant will authorize the jury to presume an ouster:</p> <p>Where husband and wife unite in a deed of the lands of the wife, which is not so acknowledged & certified as to pass the wife’s right, she has no cause of action during the life of the husband, and therefore no statute of limitation operates upon her right until after his death.</p> <p>The entry of one tenant in common or a parcener, will enure to the benefit of his co-tenant or Íiarceneis, uness it be adverse or by claiming the whole, when it will be presumed adverse.</p>

<p>Covenant.</p> <p>Case 49.</p> <p>Error to the Lewis Circuit.</p>

<p>Consideration. . Covenant.</p> <p>Covenant does not lie upon the following words in a letter from-one brother to another: “Dear Brother, Preston’s getting the money that he did from you, has caused me many fainful hours. If had health I soon would get out of debt, the amount is sure to you or your heirs at some time. III should die before I can pay it, it then must come to you or your heirs.” They import no promise, imply no obligation except at discretion.</p> <p>Proximity of blood is a sufficient consideration to authorize a Court of chancery, upon the bond of the father, to, decree the conveyance of land to the son: -(4 Bibb, 166; 7 B. Monroe, 382,) where the relationship appears in the writing.</p> <p>Is the promise of moneytoaeson oF°n ^relationship, enforcible want of eonsidupon? — QuERE?d</p>

<p>Trespass.</p> <p>Case 51.</p> <p>Error to the Bracken Circuit.</p>

<p> Wills. Devises. Remainder. Dower. ■ Advancements. Fraud. </p> <p>A devise of »' tract of land to the son of the testator, reserving a life estate to his wife, with a request or the expression of a desire that the son should remain with the8 testator and his ■wife upon the land, and take care of them and the longest liver of them, and have one third of the profits of the farm, is not a conditional devise in fee, but an absolute vested interest upon the death of ihe ■ testator, subject to the life estate-of the mother.</p> <p>—And in such ease the devisee’s right to one third of the profits of the farm ceased Dpon his death before his mother, but the remainder passes to his heirs.</p> <p>The tenant™ fee in a remainder, ■who has not been seized, has not such estate and seizen as enables his wife to have dower in the estate.</p> <p>A father-in-law gave into the pos. session of a son-in-law, sums oi money at different times, and afterwards tool a note for the whole amount and a mortgage to secure it, which, upon the death of the son-in-law he transferred to a trustee for the benefit of the daugh ter. — field tha; it was not fraudulent.</p> <p>eityS-whichisdis" posed of by the, remainderman, is to the preju. dice of the tenant for life, not to the prejudice of the personal representatives of the testator,</p>

<p> Public dedications to public uses. Use and occupation. </p> <p>The County Court having contributed to the public buildings on the public square, on the removal of the seat of justice, had no claim upon the trustees of the town to reimbursement of the expenditure, nor had it any power of transferring any claim for use and occupation by the trustees of the town where the same was situated, after the public use had ceased the right to the ground andbuildings belonged to the trustees for the benefit of the town and its citizens.</p> <p>al*1 clainrexisted againstthe trustees, either on hehaif of the citizens or County Court, consequently the county Court can transfer none to Perkins.</p>

<p>Assumpsit.</p> <p> Case 54. </p> <p>Error to the Montgomery Circuit.</p>

<p>Church case. Trustees,</p> <p>Decree of the Circuit Court.</p> <p>Evidence admitted without objection in the Court below, cannotbe objected to inthe Court of Appeals.</p> <p>The title to property granted to the trustees of a private unchartered association and their successors, on the death ofthetrustees passes to their heirs, or the heir of the last successor, and not to their successors by appointment.</p> <p>But in case of a granito trustees for the benefit of a Church, the offieers of the Church which was the beneficiary, may maintain 'a suit in chancery tobe quieted in the enjoyment of the grant: (2 Peters? 566:) Chorn vs Madden, ante.</p> <p>A _ Church to which a grant was made by the name ofthe Particular Baptist Church, by after-wards talcing the name of United Baptist Church,, did not thereby loose its identity or the benefit of the grant.</p>

<p>Case.</p> <p>Case 56.</p> <p>Error to the Pike Circuit.</p>

<p> Femes covert. Conveyances. Estoppel. Lien. </p> <p>Case stated.</p> <p>The certificate ■of the clerk upon the deed in question,</p> <p>The statute requires that the clerk shall certify that a feme covert was privily-examined, and shall state that she willingly acknowledged the deed, or words of like import. It is not sufficient that it might be inferred that the acknowledgment was voluntary; it must be certified that she acknowledged it voluntarily, or that the acknowledgement was-voluntary.</p> <p>The Itth section of the statute of 1831, (l Statute Law, (150,) applies by its terms exclusively to defects in conveyances by baron and feme, duly executed in every other respect, except that a dedimus potestalem did not issue in the first instance, any other detects are not provided for. The enacting clause cannot be enlarged by the allusions in the provi10.</p> <p>Where a feme Covert conveyed but by a defective conveyance, and afterwards when sole induced a sub-purchaser to pay out money by representing that the title she had conveyed was valid, and after her death, her heirs Seek to avoid the conveyance and oust the sub-purchaser: Held that the heirs of the {h”ujdm ereimthe sub-mount paid out representations wenon* residents, that sub-purchaser have a lien upon Lheland'</p>

<p>Executors. Heirs. Execution sales. Frauds.</p> <p>Caso stated by reference to 6 Dana, 150.</p> <p>A decree is renboth heirand ex-the101 executors the decree is void, two executions issue one andmSthMother u?or”StandeXare levied on slaves in possession of the heir not of and the^meeeds execution5 ^n equal j>arts: execution aná t^exec'ao^are void, th©sale, &e. heir, is not netheheirheld the frauduient'transfer from his fa-(.her, the sale is validas to him.</p>

<p>Pleadings in bar. Set-off. Verdicts.</p> <p>Case stated and pleadings, and judgment of the Court.</p> <p>A dismissal of a suit “onmotion ofthe plaintiifby his attorney,'" with a judgment for costs, pre•sents no bar to a second suit for jnand.Same de"</p> <p>A discontinuance or non-suit was never regarded as a bar to another suit ior the same cause of action, but a nolle prosequi or retraxit was regarded as a bar.</p> <p>A generalverdict for the plaintiff is a valid finding by the jury, although set-off be' pleaded; the general finding for the plaintiff being in effect a rejection of all set-off.</p>

<p> Assignor and assignee. Diligence by suit'. </p> <p>The facts of the case.</p> <p>An assignee' use^such tain judgment Sote at"the'1fiist ¿^’“asa'manof wo^í¿* and who thought it important to have judgment ^ere3 he'1 aloné interested in the note,</p> <p>Anote vyas as-* signed thirtv se» ven days before coun' at, which brought, and but twenty seven 'in which process. ^authorize V6ajudgment,. — -suit til the 23d day, or five days for fendant ^'residing house, the pro-served''7 and "no Held that the plaintiff ert proper dilifo^Uiis recourse aP°n the as3i£“</p>

<p> Divorces. Marriage. </p> <p>Case stated.</p> <p>A marriage by a party divorced, under the act of 1809, (1 Stat. Law, 123,) within two years after the rendition of the decree of divorce, is invalid.</p>

<p>Towns. Dedications. Public uses. Limitations. Wharfage, Spc.</p> <p>Case stated.</p> <p>The proprietor of a town having made and exhibited a plan thereof, and caused it to be posted up; on the day of a public sale of’ lots, accompanied by a written» declaration • attached thereto*, that sales, past and future, were to be regulated and governed by it, is bound, as; well as the purchasers of lots, to be governed by such plan in respect to ail the advantages and. easements, as well as disadvantages arising out of the plan.-</p> <p>¡ng to their apP'°Pnate pul£l0' The right acqui»red by a purchaser of a lot. in an established town is not confined to the mere use of' the ground purchased, hut extends to the use of all the streets,, alleys, public ground and other public rights in the town,accord-</p> <p>When a town is established by public authority, the streets, alleys and public grounds designated on the plan, vests in the trustees for the use of the property holders in the town,and cannot be diverted from that use. The same rule prevails where it is of private establishment.</p> <p>The right to the public streets, alleys andpublic grounds as designated by the plan of the town of Portland, recorded, became public property for public use, and vested in the trustees of the town when appointed, and are held in trust by them for public uses.</p> <p>Was the space left between the water’s edge and the street designated as front stieet, designated as having beeninlendedfor public use? And if so, was there any limitation as to that use or reservation of individual interest in the proprietor?</p> <p>The plan of the town showing no line separating the town from the Ohio, the inference is clear that itwas intended to go, and -did go to the river: (2 J. J. Marshall, 224; 3 B. Monroe, 144; 7 a. 680.)</p> <p>Where a town is laid off by an individual into streets, alleys, &o. and sold out, the proprietor stands as trustee and holds the title for the properly holders in trust lor the appropriate public uses.</p> <p>The location of a town on a navigable river, is for the benefit of the river as a highway, and any space between thestreels and th.e water’s edge, is presumedly dedicated to the public as a common for pubiicuse: (6 Dana, 61; 3 B. Monroe, •144; 7 lb. 680.)</p> <p>It Is nolnecessaly that a plan of a town laying down lots and streets. &c. shall specify by words what aie the parts dedicated to public use, it is sufficient if they be ^presented as streets, &c.</p> <p>The right of the public at laige to acquire easements over^ the lands of individuals, is not confined to public highways, but extends to many other easements and uses: See Me Connell vs Lexington, (12 Wheat. 522; Co. Lilt. 56, a.; 2 Brod. and Bing. 667; 5 Cowan's Rep. 311; 8 Term Rep. 606-)</p> <p>Public gYOund. being dedicated in a town to public use, the light is not lost for want of use, but exists to be used as the public ■conveniencemay requite; nor is ■the use necessary to prove the ¡right.</p> <p>Parol 'testimony competent to explain the extent of a dedication, of private property to public uses, made by a plait of a town.</p> <p>The map of the town plainly showing a reservation of a portion of the land on the river to the-proprietor, is not to be considered' as- dedicated to publicóse; this iS' the case as to- square No.. 4.</p> <p>Does the dedication of property upon the bank of a river imply the right in the public to charge and hold tolls for wharfage, &c., to the exclusion of all right in the proprietor? The dedication being of the use no right remained, in the giver or donor to erect wharfs or charge tolls or wharfage.</p> <p>Argument show” ing how the in” terest of the town might be affected by the' right remaining in the proprietor to make wharfs and charge whar-' fage.</p> <p>The right of the proprietor of a towa to the use of a ferry landing in his use at the establishment of the town though within the space dedicated to public use, was not affected by such dedication, but remained private property: Kennedy’s heirs vs Covington, (8 Dana, 5(1.)</p> <p>The right of the public in property dedicated to Eublic uses, may e lost by an acú versary possession for twenty years.</p> <p>Where the original proprietor of a town built wharfs and charged wharfage on ground dedicated to public use in a town, the trustees of the town have no. right to require a payment to them of such moneys.</p>

<p> Forcible entry and detainer. Purchasers. Tenancy. </p> <p>Ca»e stated.</p> <p>A sai-enera! rule no irregularity in forcible entry and detainer before a Justice, will be available in the Circuit Court; much less can it be available in this Court, if not urged before tiie Circuit Court.</p> <p>When a tenant takes possession under one and then attorns to another, he is notliable iorforcible detainer at the suit of the latter: (l Marsh. 320: 2 J. J. Marsh.; 3 Litt. 466.)</p> <p>A purchaser by executory contract, becomes a quasi tenant, and upon canceling the contract cannot as purchaser of another, assume a hostile attitude against his vendor: (2 Dana, 213.)</p>

<p>Chancery.</p> <p>Case 64.</p> <p>Appeal from the Nicholas Circuit.</p>

<p>Bills of discovery. Jurisdiction. Justices of the Peace.</p> <p>Case stated<</p> <p>The Chancellor has power, on bill filed for that purpose, to -enjoin proceedings at law before a Justice of the Peace and compel a discovery of facts to be used upon the trial at law before the Justice.</p> <p>If the Justice of the Peace has jurisdiction on billfiled, to compel such discovery, the jurisdiction of the Justioe is not, therefore, exclusive, but only cumulative and does not- oust the Chancellor of his jurisdiction in such cases. When a bill of discovery is filed and sworn to, against a non-resident, and it is alledged that the facts .are exclusively within his knowledge and the manner in which they became known to him are set forth the general traverse does not apply, and if they are not denied, the bill should he taken for confessed: (3 Slat. Law, 17.)</p>

<p>Caveat.</p> <p>Case 66.</p> <p>Appeal from the Johnson Circuit.</p>

<p>Assumpsit.</p> <p>67.</p> <p>Appeal from the Russell Circuit.</p>

<p>Covenant.</p> <p>Error to the Bath Circuit.</p> <p>Case 68.</p>

<p> Contracts. Public policy. Jails and jailers. </p> <p>Question stated.</p> <p>Jails are public property. The jailer is a public officer, and has charge of the jail fox public purposes, not for his own private purposes.</p> <p>The jailer has no authority to appropriate the jail to the purpose of confining runaway slaves at the instance oí the owner.</p> <p>Slaves committed to jail' by the owners are not runaways within the contemplation of the statute on that subject.</p> <p>It is against public policy to permit a jailer to place slaves in the public jails at the instance of their owners, and no contract to pay is implied on the part of the owner for slaves so kept by a jailer, or is enforcible at law, nor liability for an escape*</p>

<p>Error to the Grant Circuit.</p> <p>Appeau.</p> <p>Case 70.</p>

<p> Mortgages. Liens. Assignment of mortgage debts. </p> <p>case stated in *|nded bin? a*</p> <p>The answer the firsí. moxtga-</p> <p>Second amended billmalungmortgagees in two parties™°ttSaSe3</p> <p>The mortgaged dhstribu‘h.e to be reversed.</p> <p>'Questions ari-sing in the case.</p> <p>The case of Nelson’s heirs vs Boyce, (7 J. J. Marsh. 401,) & Thornton vs Knox’s heirs, (6 B. Mon. 74,) cited and approved.</p> <p>A mortgage given to indemnify endorsers in three several bills of exchange for $4,000, endorsed in blank exoept^the amounjffand delivered to mortgagee to be used to raise funds— Held to be valid..</p> <p>Mortgagees who have endorsed bills in blank, and taken the mortgage as an indemnity, are not affected by Bubseqnentmortgages opon the same property, though made before the bills are put into circulation, nor by the negotiation or putting into circulation of the hills so endorsed after the date of a second mortgage. They had no right to -prevent the mortgagor from putting the bills into circulation.</p> <p>When a mortgage is given to secure aparlicu-' iar debt, a change of the debt by taking a new note, does not deprive the mortgagee of the benefit of the morlgage security: Honnre's ex’r. vs Bake-well, (6 B. Mon. 67;) Brinkerkoff, &c. vs Lansing, (4 John. Chy. Rep. 65.) ■</p> <p>The assignment of anote secured by mortgage carries with it the mortgage lien, which is not destroyed by a renewal of the note, nor is it otherwise if a new note be taken payable directly to a third person — it is still the same debt. Nor does the fact that the personal security is taken ¡destroy the mortgage lien.</p> <p>—Nor is the taking a second mortgage an im plied waiver of the first, but is regarded as additional security. So is the taking of personal security.</p>

<p>Assumpsit,</p> <p>Error to the Christian Circuit.</p> <p>Case 73.</p>

<p> Executions. Levies on real estate. Sheriffs. </p> <p>Case stated,</p> <p>Instructions of Circuit Court.</p> <p>Question for adjudication, was the levy of the execution valid?</p> <p>The return of a Sheriff upon an execution, of a levy/made before and a sale after he goes out of office, Is prima facie evidence between the parties.</p> <p>To constitute & valid levy of an. executiononpersonal property, the Sheriff must do such acts as would subject him to an action of trespass, but for the protection of the execution, and may take the possession; hut of land he cannot take the possession in virtueof hislevy. It may be proved by parol, though it is the duty of a Sheriff to endorse his levy when made and sign his name officially to_ it. Some open,’ express, unequivocal actionshould take place; it should not rest alone in the breast of the officer, whether there Was or was not a levy, or whether it was uj)on one piece of property or another, or upon the property of one defendant or another.</p> <p>To constitute a ‘valid levy on real ■estate, “the ofli■cex should either *go upon the piemises and make ^an actual levy, ■or he should see the defendant in ‘the execution or his agent, and ■•obtain his consent that the execution be levied upon the estate, «■or he should see -and apprise the ‘defendant ox his •agent, of the particular estate upon which he 'designed levying ■•and then make *un official and •specific entry upon the execution ox a paper thereto attached, of the estate and •levy” in every «case.</p>

<p> Evidence.. Contracts. </p> <p>Case stated.</p> <p>Judgment of the Circuit Court.</p> <p>Notes payable in a particular place are governed as to their validity, nature,obligation and interpretation by the law of the place ofperforraance: (Story’s Conflict of Laws, 233; 2 Kent. Com. 393-4; 6-Peters, 203.)</p> <p>^°0rseJgn0fa'gfsteí States,^ are^pro-facts. Written Jaw®7as Monroe^ unwritten laws and customs or-dinarily by parol' evidence' — competent witnesses instructed in the law; Story’s Conflict of Laws, 530.p</p> <p>A Witness whose interest ie in equipoise, is competent.</p>

<p>Chancery.</p> <p>Case 75.</p> <p>Apfeal from the Louisville Chancery Court.</p>

<p>fCovenant.</p> <p>.Case 76.</p> <p>Error to tiie Scott Circuit.</p>

<p>Chancery*</p> <p> Case 77.. </p> <p>Error to the Madison Circuit.</p>

<p>Wills. Distribution of assets amongst creditors. Mar* shaling estates.</p> <p>Case staled.</p> <p>The provisionsof Ball’s will.</p> <p>Before the statute of 1839 for tlie equal distribution of estates amongst creditors, where estates were devised for the paymentof debts, the Court ol equity tooli hold of the estate as a trust and administered it according to its own principles and the presumed intention of the testator.</p> <p>—Blit CoUTtS of equity have never sanctioned a disposition by will, of the whole of a testator’s estate to ’one or more creditors, to the prejudice of others.</p> <p>In England a creditor by specialty, binding the heir, had remedy against the personal as well as real estate, not so as to simple contract debts, for then the personalty only was bound.</p> <p>Since the statute tor may ’not^by his will prefer one creditor or class of crediif hisestate,lreai inefficientto Chancellor get6 ting possession tration 'b^'bili statute”1 will dlsl tribute it accordsions° thePIwni notwithstanding, subject however, to other Incumbrances created before the death of the testaior.</p>

<p>Chancery.</p> <p>Case 79.</p> <p>Error to the Clarke Circuit. ■</p>

<p> Bills of review. Wills. Infants. Parties. </p> <p>The case stated, (8 Dana, 315.)</p> <p>Objeetofthepresent bill and amended bill.</p> <p>Demurrer to the bills anddecision of the Court sustaining the demurrer. •</p> <p>I JIO LCÜHI1UJÍU name of a bill which seeks the review of a former decree 13 not otherwise important than as it serves to designate the mode of applying, under different circumstances, for the review and reversal of a decree by bill.- Every bill having that object, is essentially a bill of review, or a bill in the nature of a bill of review; even a bill to set aside a decree for fraud, is an original bill in the nature of a bill of review: [Story’s Eq. Plea. 340.)</p> <p>A bill of review strictly, is a bill liledafter enrollment of a decree seekingits reversal for error of law or of fact on its face, or of new matter subsequen tlydiscovered, If the decree be not enrolled such a bill is a bill in the nature of a bill of review. Such a bill as the latter is not necessary unless new matter . or new parties áre introduced.</p> <p>Though the ancient rule may have been that parties and privies -only could lile bills oí review, *c. it is now relaxed, and those ’who were not parties and who may be affected by decrees may file such bills, .and they are properly termed supplemental bills in the nature of bills of review: (Story’s Eq. IPleuil. 358,424.}</p> <p>The'facts stated ;n the bill and admitted by the demur-ser.</p> <p>Every person who is bound, by a proceeding to which he was ,no party, andhadno opportunity of defence, and has not been represented, and who is interested in the subject matter in litigation, has some mode of reviewing the decree or judgment: (X Scho. & Laf. 386; 2 Brown's Pari. Ca. 315, 22: Ibid, 447; 9 Sick. 2d, 1385; 1 Stat. Law Iiy. 127.)</p> <p>Aproceedingunder the statute of Ky. of 1797, foi theprobate of wills in the Goutaty Courts, ■where the will is admitted to record or rejected, is binding upon all persons until reversed by a legal proceeding for. that object.</p> <p>If the probate’ be questioned by bill in equity as provided for by the statute, the decision is binding upon all persons until reversed by error, appeal or bill of review, &c.,and all parties interested should be brought before the Court.</p> <p>The jury are the triers of the fact of willornowill, tho’ the issue be made and legal questions arisiug be made and decided by the Chancellor presiding. If the parties are not all before the Court is this er; ror only or is the decree void as to such persons? or as to all interested? The question is will orno will, and decided either way binds all or none of the persons interested tn the will.</p> <p>•It-was-not the’indention ,of the Legislature in giving the bill in chancery, to have different trials of the validnyoflhesame will hefore the Chanoellor, and contradictory decisions in force in regard .thereto; but that all the persons in interest should be parties to the issue on that point and bound by the -decision of the jury.'</p> <p>íhér veidict of fhe jury upon a bill filed, contesting a will, must be binding on all interested in the will, or it is not binding upon any. If ail are not parties, they may come in by bill in the nature of a bill of review to review and reverse.</p> <p>The analogy of this opinion to the English practice, of a second proof in solemn form, after proof in common form.</p> <p>The case of ‘Blmsteenvs Ford f< 5 Litt. 268,) oiled, examined, -•and compared ■witiiPate’sad.’r. its Joe, (3 J. J. Morsh. 116-17;) Bod. will case, |(4 Dana, 476,) and the first supposed to be inconclusive on ithe point in this • case.</p> <p>The case of Bogers vs Thomas cited with approbation.</p> <p>The bill of review or bill in the nature of a bill of review, is an appropriate remedy, for persons interested in the trial of an issue in chancery on bill filed, who were not made parties to the original suit, especially after they have been referred to in the will by character not by name, and they may, on the filing of such bill with the leave of the Court, have a review, rehearing and reversal of the decision, though it may be that of the appellate Court.</p> <p>Remedy by bill oí review has been allowed to one who was no t a- party: Chaworth vs Beech, (4 Vesey, 564,) and not precluded from filing such bill, though the decree be affirmed by the Court of Appeals.</p> <p>A bill of review is not barred by an affirmance of a decree, upon facts newly discovered, or diseoveredsincethe affirmance.</p> <p>The Chancellor permitting the filing abili of review, or bill in the nature of a bill of review, should put the complainant under such terms as will insure justice between all concerned, allowing snch testimony to be used as had become inaccessible to the parties.</p>

<p> Costs. Jurisdiction. Contract. Pleadings. </p> <p>A suU wag. ^f0°Da °°vestable’s bond for ty^an^judgment t3ian judgment for have beenSgiven d¿fendautbl¡f any was incur-</p> <p>An officer levying two executions on the same property, is not bound to take a delivery bond, to deliver the property to satisfy one execution, unless a bond be tendered ior its delivery to satisfy the other also.</p> <p>If the plaintiff’s replication confess the matter of the plea which is a good bar, judgment should be entered for the defendant, unless plaintiff Should ask leave to amend, which should be granted if aslced.</p>

<p> Jacks. Penal offences. Revenue. </p> <p>Standing a Jack under a contract to have the mules at a stipulated price, less then the value, without a license, isa standing of the Jack for profit, within the meaning of the statute, and fore, a penal of. fence.</p>

<p> Tippling houses. Taverns. Retailing Spirits, </p> <p>The right to keep a tavern is a personal privilege ferabie^a1 tavern byffservMit or bar keeper, bat it must be under his control and</p>

<p>Debt.</p> <p>Case 84.</p> <p>Error to the Mason Circuit.</p>

<p>Error, to the Estile Circuit.</p> <p>Case.</p> <p>■Case 85.</p>

<p> Retailing spirits, malt ancl fermented liquors. </p> <p>statute of ’t is a penal difence to spiritous, iit or fermented. liquors by the quart or less than gt¡uart, or more than a quart, in the cityofLouisviile, where it is diank in the house of the vendor.</p> <p>No conviction can take place upon a presentment, unless for Die particular of-fence charged..</p>

<p> Recognizances. Liens. </p> <p>fa Ky. entering into a recognizance to the Commonweal t h creates no lien upon the estate of the party. Tho’ such was the case in England by the statute (33 Henry the 8th c. 39,) it has never been regarded as the law in Ky., but all liens existing have been created by statute.</p> <p>At common law judgments gave no lien upon lands nor were they subject to extent, but at the suit of the King, as general proprietor, no, such principle exists here.</p> <p>Judgment in favor of the Commonwealth on recognize n ce s, gives no lien in its behalf, unless by express statute.</p>

<p>Chancery.</p> <p>Case 88.</p> <p>Error to the Mason Circuit.</p>

<p> Sureties. Sheriffs. Sales under executions. </p> <p>Case stated,</p> <p>When seven years elapse after’ judgment, ■without execution, the surety is discharged, (3 Stat. 'Law, 558;) so if the like period 'elapse between the issue of executions: (7 B. Mon. 469.) The death of the principal in the meantime makes no difference.</p> <p>The death of the ■principal debtor does not absolve ■the creditor from •suing out his execution to preserve the liabilittyof the surety.</p> <p>—But if execution issue against the surety after the lapse of sev■ven years, and a levy and sale 'take place, the sale will not he ■set aside at the instance of the surety,unless the purchaser has done some act which would affect the validity .of the purchase.</p> <p>Mere irregularity-on the part of an officer does not alone render a sale under execution invalid, especially where the complaining party does not appear to. be injured.</p> <p>If one of several defendants die alter judgment and before execution, execution may isnie against the survivor or survivors: (1 Litt. 244; 3 Bibb, 334.)</p>

<p> Executions. Scire facias. </p> <p>Though the process which brought the party into Court was irregular, as none was necessary, the case should he heard.</p> <p>Executions on decrees in chancery cannot properly issue after the lapse of a year and a day, without scire facias.</p>

<p>Error to the Franklin Circuit.</p> <p>Chancery.</p> <p>Case 91.</p>

<p> Notice. Motion. </p> <p>Where notice is necessary of an intended motion to quash an execution, the grounds of the motion should be stated; and such notice is necessary in all eases where the facts upon which it is based do not appear on tlie record.</p> <p>A fter executions have issued upon a judgment within the year and day, executions may thereafter issue without scire facias, though 20 years may have elapsed since the last issued.</p> <p>No grounds quashal can ■xelied upon such as are : cified in the ;iice. for but no-</p>

<p>Error to the Lawrence Circuit.</p> <p>Motion.</p> <p>•Case 93.</p>

<p> Devises. Wills. Construction of devises. Evidence. </p> <p>case stated and evilience-</p> <p>The instruction court thereon!"1</p> <p>A testator bequeathing to his ■ creditor an amount equal to his indebtedness or exceeding it, where it is of the same nature, is certain, and no other motive is assigned in the ■will, is esteemed a satisfaction: (2 Story'z Eq 378.)</p> <p>But where the legacy is less than the indebtedness — different in time of payment, differing in nature or an express direction in the will to pay-debts, it is not regarded as in satisfaction of indebtedness: (2 Roper on Leg. 4 sec. 2; 2 Story’s Eq. 380.)</p> <p>A bequest of household furniture or a legacy of money to bo paid at a future time, not to be regarded as given in satisfaction of a monied indebtedness then due: (2 Ves. Jv.n. 365; 2 Roper on Leg. 44.)</p> <p>Where a testator has estate sufficient to be generous as well as just, and the language of his will does not import that a legacy or bequest is as a payment, the gift will be regarded as a donation.</p> <p>But paid proof is not admissible lo show the intention oí the testator in such cases.</p> <p>The presumption that a legacy is in satisfaction of a previous indebtedness, is au equitable, not a legal presumption, and only available in a Court of equity.</p>

<p>Covenant.</p> <p>Case 95.</p> <p>Error to the Union Circuit.</p>

<p>Error to the Bourbon Circuit.</p> <p>Chancery.</p> <p>Case 96.</p>

<p>Executions. Sheriffs' returns. Motions.</p> <p>Case stated.</p> <p>Where an officer returns an execution “stopped or stayed by injunction,” the property levied on is released; so is it released when it is relumed by the Sheriff “stayed by agreement of the parties’,’ and the levy ceases and the lien is lost: Burks, <f-c. vs Bass, (d Bibb, 338.)</p>

<p> Bailee and Bailor. Agents. </p> <p>Case stated.</p> <p>Onewho undertakes the performance of a business for another, is bound to pursue instructions and to exercise reasonable care and diligence in the performance of that duty^ and is liable in case of loss by neglect.</p>

<p>Devastavit. Executors. Judgments.</p> <p>Case stated and facts agreed.</p> <p>íto arafeome a •Jeágsaeaií de ¡bonis propriis agai&staa ejecutor, Üasjs rausí have been a provisos ¡¡ságraaEí tñe'bonis Ceslatsrá; and a eetam isi cuntía éema <2 M. X Mash. »S</p>

<p> Administrators. Substitution. Contribution. Jurisdiction. </p> <p>Where' an adm'r. pay debts of the intestate to an amount exceeding the assets, he may subject the real estate in the hands of the-heirs to his reimbursement.</p> <p>And the Surety of an administrator who has so disbursed his funds, may be substituted to the. rights of his principal, such is the case where the surety of an-, adm’r. in a replevy bond for a debt due by the-intestate pays it. off.</p> <p>Ob® cf several heirs-, who pays the debt of the ancestor, has a right to contribution from bis co-heirs; and chancery has jusis diction.</p>

<p>Chancery,</p> <p>Case 101,</p> <p>Error to the Franklin Circuit,</p>

<p>Assumpsit.</p> <p>Case 102.</p> <p>Appeal prom the Jeeeerson Circuit.</p>

<p>Error to the Franklin Circuit.</p> <p>Pet. & Sum.</p> <p>Case 103..</p>

<p>Attachment in chancery. Writ of error.- Limitation»</p> <p>The pendency of an attachment bill to enforce the collection of a debt, is no bar lo a proceeding at law to enforce the collection of the same debt: Black vs Lackey, (2 B. Monroe, 257.) Nor is the' pendency of a suit at law any bar to an attachment to enforce the collection of the same debt.</p> <p>The plaintiff who is proceeding at law and in chancery by attachment, to collect the same demand cannot be required to elect in which suit he will proceed, where the bill charges a fraudulent intent to remove the property.</p> <p>The receiving an order upon an officer to pay over the amount of his receipt when collected, did not oblige the party receiving it to sue the officer or loose the amount of the receipt.</p> <p>Cross errors can-after Hrree^ears Tendering0of the ore|ment °r de"</p>

<p> Trespass. Pleading.. Practice at law. </p> <p>Case stated.</p> <p>The declaration.</p> <p>Pla¡ntiff>s evidence.</p> <p>Defendant’s evldeuce</p> <p>in trespass quare dSdant^plead ibelum tenementum, plain-prove his ease to open and con|jj“^® ^ °ffecr¿n| prove" his'"ase° not be^noMuitfend^°usl1 r dek" that he_ had a county also, dif. Pbt"tiff. ■ ft°S ymiid have been different if defendant had filed guilty — heathen “dg ae^trespass ^011 his oloae» unless plaintiff had new assigned.</p> <p>"Vindictive damages maybe given where a trespass is committed •wilfully, and in a highhanded threatening mancaer.</p>

<p>Meplevin. Avowry. Towns. By-Laws.</p> <p>The Legislature has the right to vest the Trustees of towns with, power to pass by-laws for preventinghogs running at large in the town and imporingfines upon such as violate such by-laws.</p> <p>r by-laws by which hogs found running^ at large in a ‘town, are made subject to ■'sale -'at the expense of the owner, and the balance to be paid to the owner, is not in violation of either ^Federal or State 'constitution.</p>

<p> Liens. Mortgages. Notice. Ghoses in Action.. </p> <p>Elrod gave his jfa McFaddin”’ ‘“to^saS!’ McFaddin, ana ea to3 Jacob Van-' “^a itto w!s!</p> <p>j. m. Briggs ana.mortgageftom £ M4t'“nhe same ?and.°</p> <p>The assignment to J. Vanmeter, admitted to be m„ trust, and claimed to be fot general indemnity, though in terms absolute; but-claimed by. Sam. McFaddin tp be.for a special indemnity, i. e. to. indemnify Jacob Vanmeter as indorser of two bills of exchange,,,</p> <p>The bills of ex-bütJWanmeteFs demands against S. McFaddin amouni to more than the land not mortgaged.</p> <p>W. S'. Vanmeter sued Eliod on the bond at law.</p> <p>Elrod filed his bill against the Vanmeters and Briggs, <kc. requiring them to intejplead, &c.</p> <p>The doctrine of equitable mortgages, founded on' deposit of title deeds for an antecedent debt, or loan of money though well established in England, not sanctioned by this Court, hut suggested to be in conflict with the provisions of the statute of frauds, and difficult to maintain.</p> <p>The assignment of the bond passed the entire legal property therein to Van-meter.</p> <p>Where a deed is absolute on its face, or a bond for land is assigned absolutely, but admitted to be a surety for money only, parol evidence is admissible to show the extent, nature, &c. of the lien of the holder; but it should be clear and satisfactory, if in contradiction to the terms of the writings.</p> <p>The mortgagee of arc equity occupies no better attitude than 1 fee mortgagor.</p> <p>A party who has equal interest on both sides, is a competent wit* mss.</p> <p>A father who assigned. a mortgage to his son in consideration of natural affection, and who intended to charge it as an advancement if realized, is competentwitness to sustain the mortgage as being under no legal liability.</p> <p>When equities are equal priority givespreference, and oli'e having the legal advantage will not l«i deprived of is.</p> <p>One having notice of a mortgage is bound by it whether it be recorded or not recorded.</p> <p>The statute of 1837 never has been considered to require theleoording of mortgages of choses in action or the legal right to debts transferred.</p>

<p>Debt.</p> <p>Eeboe to the Mebcee Ciecuit.</p> <p>Case 108.</p>

<p>Chancery.</p> <p>Error to the Garrard Circuit.</p> <p>Case 109.</p>

<p>Case. Pleadings. Mill dams;</p> <p>Case stated*</p> <p>One who has the grant of a privilege to build a mill upon a stream, cannot exceedlhe terms of that privilege to the prejudice of the owners ot land above or those who may ipurchase from ■such owners.</p> <p>A declaration in case for raising a mill dam so as to violate the condition upon which the privilege to erect it was granted, by which the plaintiff was injured,, is good.</p>

<p>Executors. Usury. Practice in- Chancery suits;.</p> <p>An- executor is responsible as such, {or. usury receiftéd.' by his testator in his lifetime, personally for that received. by himself.</p> <p>One witness is sufficient to-authorize the recovery of usury paid to a testator against the denial of the executor. who is not presumed to have personal knowledge of the subject.</p>

<p>Appeal from the Jefferson Circuit.</p> <p>Case.</p> <p>Case 112.</p>

<p>Debt.</p> <p>Error to the Oldham Circuit.</p> <p>Case 113„.</p>

<p> Administrators. Husband and wife. Executors. </p> <p>The claims in the bill.</p> <p>The answer made a cross bill and its claims.</p> <p>Decree of the Circuit Court.</p> <p>An exeeutorwho suffers personal estate to pass thro’ his hands to the heir or devisee without a refunding bond, will not be permitted after-wards to charge the expenses of administra’n upon the real estate in the hands of the heir.</p> <p>The husband, though he be not the adm’r. of the wife, havingafter her death, in the absence of anypersonal representative, received assets due in her right, will be • regarded in equity as entitled to them in the absence of any proof of indebtedness due by the wife.</p>

<p>Vendor's lien. Assignment of notes.</p> <p>Case stated.</p> <p>The assignee of a note given for land, has a lien for the same up■on the land, tho’ it be conveyed to a sub-purchaser, even without notice that the consideration was Sjiot paid. So has abonafideowner of the note with'out assignment: Hunt vs Brand's heirs, (6 B. Monroe, 562,) so far ■as a purchaser has not paid for •it.</p> <p>The faftt that the holder of a note 'passed it ¡with’out assignment, has no recourse upon the purchaser from whom he received it, ■does not affect the lien which -exists upon the land for which it was given for Us ■payment;the lien •passes to each holder without 'assignment.</p> <p>A purchaser of a fand,0f<>n^whioh there exists a lien for a part of the price, but fcrit,moy°bederemainder^ due upon his purer of the note for chaaef^ivithout bringing the first purchasexs before the Court,</p>

<p> Wills. Remainders. Devises. </p> <p>Case ¡staled.</p> <p>Questions presented for decision.</p> <p>An emancipation of a slave by will, may be contingent and to take effect upon the death of a particular person.</p> <p>A slave was by ■will, to be free at the death of a third person, or at 21 years of age if the person die sooner, the issue born of such slave before the right to freedom is perfect, are slaves; (5 Sana, 207.)</p> <p>It is otherwise where the slaves are actually emancipated but the full enjoyment of freedom is postponed to a future period: (6 J. J. Marshall;) Hudgens vs Spencer, (5 Sana, 589.)</p> <p>The children born of a slave during the life time of a tenant lor life, belong 3 those entitled iothe remainder: (1 Marsh. 532; 7 Monrot, 231.)</p> <p>But if the slave be entitled to freedom upon the death of the tenant for life, then the issue born during the tenancy for life, belong to the representatives of the person holding the life estate.</p> <p>'Case distinguish-ed from the case -•of Young’s adr, ■•vs Small, (4 B. Monroe, 220.)</p>

<p>Error to the Knox Circuit..</p> <p>©HANCERY.</p> <p>Case 117..</p>

<p>Error to the Buehtt Circuit.</p> <p>Pet. & Sum.-</p> <p>Case 118.</p>

<p>Chancery.</p> <p>Case 119.</p> <p>Error to the Henry Circuit.</p>

<p> Practice in Chancery, Liens. Distribution of estates, </p> <p>It was no abuse of the discretion, of the Circuit Judge to reject the application of a complainant to re-comvnit a case for the .proof of additional claims against the estate of a decedent, made alter five years from the time oí filing his original bill and after decree, when the facts which were the grounds of the application rest upon his affidavit alone.</p> <p>Exceptions to reports of commissioners should be taken in the Circuit Court, but where palpable error appears.upon the report itself, this Court will correct it.</p> <p>The liens intended by the 3d sec. of the statute of 1839, relating to the distribution, of estates, are such liens as existed at the death of the intestate,, and not such as were afterwardsacquired by judgment or execution-</p>

<p>Trover,</p> <p>Case 121.</p> <p>Appeal from the Clay Circuit.</p>

<p>Case.</p> <p>Case 122.</p> <p>Error, to the Bullitt Circuit.</p>

<p>Chancery.</p> <p>Case 123.</p> <p>Error to the Clarke Circuit.</p>

<p> Ejectment. Vendor and vendee. Notice to quit. Evidence. </p> <p>Where notice to quit is necessary, six months, notice is requisite.</p> <p>—And the general rule is, that it must expire at the end of the year, where the tenancy is from year to year.</p> <p>This general rale does not apply to a suit by a vendor vs his vendee.</p> <p>A notice by vendor to his vendee, given 8th Sept, to quit in six months, is reasonable.</p> <p>A survey made in a suit in chan, eery is evidence in an ejectment between _ the same parties.</p> <p>Decrees in chancery are not .evidence against one who was no party to .the suit.</p>

<p> Covenants. Agents. Res gesta. Evidence. </p> <p>Case stated.</p> <p>No set form of .words is necessary to make a covenant, “any language importing an agreement or duty to perform a futuYe act is sufficient.’’</p> <p>Averment which was held sufficient to show a breach of covenant.</p> <p>Where a subscribing witness is •dead or absent from the State, the hand.writing •of the obligor may be proved.</p> <p>The .declaration 'of an agent •whilst in the act of performing his agency are evidence against his principal.</p> <p>A delivery bond 'sighed in blank, and delivered to ■an officer to be filled up, may be filled up, and it is obligatory on Ihe parties.</p>

<p>Error to the General Court.</p> <p>Chancery.</p> <p>Case 126.</p>

<p>Error, to the Fayette Circuit.</p> <p>Kjectment.</p> <p>Case 127.</p>

<p> Bailment for hire. Joinder of action. </p> <p>Case stated.</p> <p>Tlie pleadings.</p> <p>The decision and Judgment of the ©ourfc thereon*</p> <p>The owner _ of property hired out may sue for an injury to hisreversionary interest by one-who was-not the-hirer.</p> <p>A hirer of a slave- and one who intermeddles with the slave and puts him in jeopardy, and by which he is injured, are not jointly liable to. the owner.</p> <p>A bailee for hirer is bound to use ordinary care, such as a prudent man would take of his own property.</p>

<p> Jurisdiction. Parties. Trusts. Cestui que trust. </p> <p>A trustee held to party toTsuifin [vust property— without service notPmakeS’h?ma Pait3r-</p> <p>A Court of law ate tribunalPrto underexecutioif ^“k^heobjeeble merely, or suffidentUSh nt°o gb®wsa^ P^^1® have an 0f which equity partially deprive ,the Purchaser.</p> <p>•If a trust, estate be subject to an •equitable lien or charge, a purchaser thereof will hold, so far .as that lien may .extend, for his •o.wn indemnity.</p> <p>A cestuique trust is .a necessary party to a suit which is to affect the trust estate.</p>

<p>Appeal from the Clinton Circuit.</p> <p>Assumpsit.</p> <p>Case 130.</p>

<p>Chancery.</p> <p>Case 131.</p> <p>Error to the Barren Circuit.</p>

<p>Error to the Clinton Circuit.</p> <p>Case.</p> <p>Case 132.</p>

<p>Husband and wife. Settlements.</p> <p>A husband will not receive the aid of, the Chancellor to reduce to possession the estate of the wife until suitable provision shall be made for the wife.</p> <p>Not so in regard to property that is bought by the husband, though with money acquired by the marriage.</p>

<p>WfM,.</p> <p>6Case 134.</p> <p>Error to the Logan Circuit.</p>

<p> Aw'ards. Notice. </p> <p>An order 'Of reference not re■quiring the award to be returned to the next Court, remains in force. The statute requiring copies of ■awards to be delivered to the parties, is substantially complied with by delivering copies fifteen days before the succeeding Court. The failure to deliver copies does not vitiate awards, but is ground for a continuance.</p> <p>An award determining that the plaintiff shall recover nothing by Ms suit, and that defendant shall recover his costs is va-lid.</p> <p>That arbitrator» admitted improper testimony, is not a valid objection to an award, unless k show corruption, partiality, or undue ‘means to produce the award.</p> <p>Where ihe party attended by his counsel, «and the party Himself a nonresident, the Want of'notice i« waived.</p>

<p> Bills of review. Chancery jurisdiction. </p> <p>Ho bill in chancery •can properly be tiled to enjoin a decree unless it be suefe as would authorize -a bill of review.</p> <p>The failure of a surety in a suit in chancery, to "set up and rely upon an available defence 'which he might have done by diligence, is no ‘ground for ashing relief at the •hand-! of the “Chancellor after -a decree.</p>

<p>Appeal prom the Mason Circuit.</p> <p>Trespass vs et ARMIS.</p> <p>Case 137..</p>

<p> Master and slave. Contracts. JSmancipatioji.- </p> <p>Case stated in' the bill.</p> <p>The answer of Mrs. Bruce;</p> <p>The answer of otherdeíendants».</p> <p>A promise to, or an - executory contract with a er"ÜfheSshan' M emancipated, and cannot be atWorin^quie^oipa“d jj1110 -way 1“an sueil as 18 prescribed by vs ^Archer, *7 ana> 3l4</p>

<p>Error to the Caldwell County Court.</p> <p>Mill case.</p> <p>Vase 139,</p>

<p>'T/HANCERlf.</p> <p>'Case 140.</p> <p>Error to the Livingston Circuit.</p>

<p>Practice in chancery. Attachments. Cross suits.</p> <p>The bill to foreclose mortgage.</p> <p>Hyatt’s answer charging gaming and usury in the consideration.</p> <p>‘Complainant’s amended bill.</p> <p>J. G. Hyatt’s answer and cross bill asserting pri- or liens on mortgaged property.</p> <p>Stemmons’ answer and cross bill charging J. G. Hyatt’s lien and asserting rightas adm’r. of Wm. Hyatt, Sr. for advances beyond assets.</p> <p>Second decree oí the Circuit C’t.</p> <p>The failure -of parties defendants in a cross suit between each other, to prepare their cases for trial, presents no objection to a trial between them and complain•ants.</p> <p>After an attachment ordered by the Chancellor, and the property laten into custody, by no proceeding at law, can a third person interfere with the possession thereof.</p>

<p>Chancery.</p> <p>Case 142.</p> <p>Error to the Meade Circuit.</p>

<p> Powers of attorney. Trusts. Equitable compensation to agents. </p> <p>Case stated.</p> <p>An agent acting under a power of attorney duly recorded, which provided for the payment of the costs of the litigation arising in the transaction of the business, held to be entitled tocompensation for his services and expenses in and about the business of the agency — and his equitable claim to compensation regarded as superior to that of a transferee of the fruits of the litigation.</p>

<p>Chancery.</p> <p>Case 144.</p> <p>Error to the Louisvilxe Chancery Court.</p>

<p> Chancery. Fraud in decrees. Bills of review. Surplus land. Lapse of time. </p> <p>Contracts between Blight and Richardson.</p> <p>Suit of RichanlheLVtoBrecover lor lost Iand’</p> <p>faiía which’was ardsonetbyy fraud about survey &c. Bleight’sheirsvs Richardson’s hill of review, setting aside former decree, and for fraud, claiming</p> <p>Richardson’s an* swer.</p> <p>The decree of the Circuit Court.</p> <p>The cjiarge of fraud in the first decree.</p> <p>Complainants antitled to relief for the surplus ■conveyed to defendant, either through fraud or anís take.</p> <p>Lapso of time toTolaímo?vend°[io*r ^“glJIand °onvendeé_ brings on'1^^claim^for ioS“ia"ciationfor</p>

<p>Chancery.</p> <p>Case 146.</p> <p>Error to the Mercer Circuit.</p>

<p>Error to the Kenton Circuit.</p> <p>Chancery.</p> <p>Case 147.</p>

<p>Pleading. Composition.</p> <p>The plaintiff's demand.</p> <p>The defence made demurrer thereto and demurrer sustained.</p> <p>It- is well settled that the "acceptance of a.-lésa sum than is due, or an agreement to accept it, is no bar to a suit for the sum due, •where there is no other consideration.</p> <p>Where a writing expresses a consideration on its face, it excludes the inference that there was any other.</p> <p>Plea setting up an agreement by-part of the creditors of an indi* vidual to take 75 cents on the dollar of his debt, upon condition or in consideration the confidential creditors of the defendant to the eastwould do so likewise, is not valid as a composition- or, agreement', to-compound, withmenf" showing |™defendatvUnd agreement of lito character by eastem ciediiora.</p> <p>Wber® creditors agree to a composition, a part wards .enforce Sand. Wit 1<5isd<a fr/Fd uP°n,tbe united >m the comPoundins-</p> <p>An agreement to lui||isanoi°bindI ills-is but a nudum pactum-. (2 Term Rep. 24; 5 £asi>230>'></p>

<p>„ Chancery.</p> <p>Case 148.</p> <p>Appeal from the Madison Circuit.</p>

<p> Emancipation. Parties. </p> <p>A suit lor1 freedom cannot- be sustained against any person- but one rvho, at'the institution thereof, has the-custody, or who claims the-ownership of the-person claiming-the right to freedom..</p>

<p> Bastards. Descents. Husband and wife. Presumptions. </p> <p>Case stated»</p> <p>By the statute of 1896, (18 sec.) the mother could not inherit from her|bastardchild. The statute only enabled them to take from or through her on a direct line,and to pass an inheritance to their own issue, (3 Dana, 232; 2 lb. 363.) But by the act of 1840, the mother may inherit from her bastard issue, (3 Stat. haw, 211,) •and the brothers and sisters born out of wedlock, may inherit from each other.; but makes no .provision foiiiiwieritanoe between legitimate and illegitimate eliiidren of the same mother.</p> <p>A bastard has, in view of the law of, descents, no brothers or sisters, except the illegitimate children of the same mother — no collateral kindred who can take his estate as coheirs — and dying without lineal maternal ancestor, and without brother or sister, the illegitimate issueof themother, or their descendants, his wife, if h e have one, is his heir, under the t4th see. of the statute, and not the legitimate son of the mother.</p> <p>The 4th section of the statute of descents, giving estate to the mother, where there is no Issue nor father of the decedent, is to referenee to the does”not enable the mother or her descendant* to inherit from dren. The 18th fer ^the easedof themrd^new^capaeity, but does not control the construction of A^bastaid^may contract mailawful issue-who are embraced by the 2d section— his wife is embraced by the 24th section, and takes under its provisions. But the 4th sec. does not apply to the case oí bastards, because there is no legal relations coming under the description.</p> <p>A bastard dying-without issue, no person except-the mother, or other lineal ancestor in the maternal line caninhevitfrom him. under the 18th sec. But the wife under the-14lh sec. takes the whole estate.</p> <p>The law- presumes children born in wedlock to be legitimate, it is a presumption of fact; but such presumption in the absence of all proof, isnot such a presumption as will sustain a title founded oil legitimacy.</p>

<p>Trespass.</p> <p>Error to the Caldwell Circuit.</p> <p>Case 152.</p>

<p>Wills. Estates in fee, conditional. Estates in fee, absolute. Vendor and vendee.</p> <p>Provisions of the Lolvenf</p> <p>The object of the bill in this case.</p> <p>Answer.</p> <p>A devise to seven children by name and if any of them should die without lawful heir or heirs, the property to go to the survivors of the six and B. who is not one of the six — Held that the words heirorheirsmean heir or heirs of the body of (he deceased child, and in case of the deatli of one without child or children, the survivors taire the land.</p> <p>& devise to A. B. and G., children of the testator, and if any of them diewithout issue the property to go to the surviving children, means only that in case of the death of any one of the devisees without issue, that , the children of the testator then living, are to take andfer the will.</p> <p>If a defeasible fee be given to the father, his conveyance will be 'effectual to pass the claim of his heirs.</p> <p>The children of one who ¡has died, and whose interest in a devise was contingent, to take effect upon the death of a codevisee, cannot take any thing upon the death ofanother co-devisee dying after their ancestor.</p> <p>A devise to James and his heirs (of his body,) if he has any at his death, if none, to his brothers and sisters, is an estate tail.</p>

<p>Devises. Wills. Rescission. Estates tail.</p> <p>Case stated.</p> <p>Where iheaflcestor takes either an estate in fee, defeasible upon his death without issue, or a fee tail, (converted by law into a fee simple,) his alienation bars his issue, who in either case cannot claim otherwise than by descent.</p> <p>"Vendee piirehasing the fee cannot be compelled to accept a conveyance from one having only ■a life estate, though with warranty.</p>

<p>Appeal jjrom the Edmonson 'Circuit.</p> <p>Chancery,</p> <p> Case 155. </p>

<p>Slaves. Prescriptive rights, Executory contracts, Emancipation. Indians.</p> <p>Case stated’ and* judgment of the’ Circuit Court,</p> <p>The grounds ora which the judgment is assailed.</p> <p>Grounds assumed by the plaintiff in error.</p> <p>Grounds assumed by the defendants in error.</p> <p>Defendant’s instructions which were refused, were properly refused.</p> <p>The fact that one has been held as a slave for a great length of time, affords no presumption of slavery: Gentry vs McMannis, (3 Dana, 382; J J-Ien. and Mun. 141.)</p> <p>Indians or white persons are pnV ma facie free.</p> <p>The declarations of a vendor of property made after sale thereof, are inadmissible to disparage thé title thereto.</p> <p>A slave cannot enforce an executory agreement made between free white persons for emancipation, they are enforcihleby the parties only: Willis vs Bruce, (ante, 548; 7 Dana, 30.)</p>

<p> Insurance. Fraudulent representations. Pleading. </p> <p>The case stated and judgment of Circuit Court,</p> <p>if & demurrer & pleas be filed together, and the demurrer overruled to the declaration, and sustained to the pleas, and time taken to plead again. and new pleas offerd, the demurrer is waived to the declaration.</p> <p>When a plea upon which issue is made and tried contains the same matter of lojdefence as one which a demurrer is sustained, the error is not available.</p> <p>The general rule in p©licie3 of insurance is, that a warranty must appear on the face of the policy and no instructionsareregarded as warranties, .unless, inserted»-'in r the. policy — they ar« merely representations.</p> <p>The statements made in the survey and application for insurance, are not in general to be regarded as warranties. Though if untrue may amount to such misrepres en tation as will avoid the policy, and if relied on in defence, the plea should show the“ importance and untruth of the representation.</p> <p>The averment in the pleas.</p> <p>A plea avetring a representation that there was a 15feetfrom the ^telll^0’esSMUy imply and that no part ?4sthuiedeasU'a kUohen, and vermentshowing representation ™a| misleading and the hazard increased, the pleaisnot good,</p> <p>A difference ex-marine <andSfi°e msurances-</p> <p>A plea.av-erring-that the building was used for a purpose other than that represented,-which increased the hazard, should, also show that it-was used differently from the manner itwasusedatthe date of the policy; and that the insurance would not have been made at thatrate- or at all, if the rspresentation had been adhered to.</p> <p>A plea to an action on a policy of insurance against fire, relying upon a fraudulent representation, should aver that the misrepresenta-tion or concealment were material to the acceptance of the risk or rate of in»* surance, and to pointouLinwhat the insecurity consisted, and how the risk was greater.</p> <p>The insured’ should stale tru]y Ms title to the I^^Impeach-should show will enable the</p> <p>Court to say that the title has not been fairly disclosed, it they be true.</p> <p>The verbal representations of the insured to the surveyor, at the time of making the survey, not proper to be detailed to the jury, in an action of covenant on the policy, under the issue in the case.</p>

<p> Mandamus. Judicial power. Executive power. Officers and offices. </p> <p>Case stated.</p> <p>■All officers of government receive their compensation upon the warrant of the Auditor up•on the Treasurer. The salary of Secretary of State, $750 yearly, payable quarterly. The man¡damusis an appropriate mode of compelling the issue of the ■warrant.</p> <p>The mandamus In Kentucky, is* an appropriaie mode of compelling the performance, by an inferior tribunal or officer, of a duty merely ministerial, which is in-joined by law.</p> <p>This writ has been awarded in Kentucky by the Circuits to the County Courts, to compel the performance of a ministerial duty involving individual right.</p> <p>It has been awarded in Virginia to compel the qualification of a clerk claiming to have the right to the office; and in Kentucky to compel the Register to register a survey, and compel the Auditor to issue his warrant on the Treasurer.- Devine vs Harvey, (7 Mon.) Kendall vs U. S. for Stockton, (12 Peters;) Mar-berry vs Madison, (1 Crunch.)</p> <p>The judiciary must, where individual right is involved, decide upon the lagality of an act of the supreme executive power, as of the legislative : Brvce vs Fox, (1 Dana, 447;) Justices of Jeff, vs Clark, (1 Monroe, 86.)</p> <p>—But when the supreme executive is vested with a discretion, his decision is final. The question whether the discretion is conferred and exists, is a judicial question.</p> <p>The Auditor is to he governed by the law in his issue of warrants upon the Treasury to those demanding them, not by the Governor.</p> <p>If he refuse,it is the legitimate duty of the judidiciary to control his action by mandamus.</p> <p>The constitution 24th sec. 3d. article providing for a Secretary.</p> <p>The Legislature cannot, where the constitution prescribes the qualification fox an office, add others not therein prescribed.</p> <p>The Legislature have the power to provide by law for the appointment of an Assistant Secretary.</p> <p>By the common law, ministerial officers may generally appoint deputies to act in ¿he name of the principal.</p> <p>-----, The statute of-1805, authorized ^polntan^assisi ggnt oTtL^GoYeraor, who may perform the oidinary duties of ^“effect</p> <p>The Seoretaiy is to be the judge in the fiist instance, of the necessity of his absence from his office, subject to the decision and judgment of that tribunal which is authorized to pronounce upon his official conduct.</p> <p>No partial neglect or non user of an office, can be regarded as sufficient evidence of abandonment, unless it be not only total and complete but of such Continuance as to preclude all future question of the fait.</p> <p>An office may be abandoned by removal from the State, county or. district to, which the officer is restricted by the law of his office. By accepting an office incompatible ’ with that which he held— By relinquishing any express qualification — By the assumption of any absolute disqualification, or by resignation— The allegations in the case do not make out a case of abandonment.</p> <p>The constitution (art. 3, sec. 10,) confers upon the Governor power to fill vacancies that may happen during the recess of the Senate, by granting commissions, &c.. — ■ but it gives no' power to malte a vacancy by adeclaration that one exists, and granting a commission to fill such supposed vacancy.</p> <p>The decision of the governor that a vacancy existss is not conclusive upon the rights of others.</p> <p>The Secretary is appointed and commis sioned for the term for which the Governor is elected, “if he shall so long behave himself well,” being removable for breach of good behavior the conviction for misbehavior must precede his removal.</p> <p>The conviction o i misbehavior in office in our government, implies a right to notice, defence and proof on the part of the officer, and is a judicial question. The trial of an impeachment is a judicial trial not a branch of executive power.</p> <p>All civil officers are, by the constitution, to be impeached before the Senate for misbehavior in office: (art. 5, sec. 2 & 3:) or by address to the Governor by two thirds of both branches of the Legislature, except clerks of Courts. The Secretary is subject only to removal as other civil officers in general.</p> <p>The Secretary is not subject to removal from office at the will of the Governor, or on his judgment for a misdemeanorormisbehavior . in office. The Governor may fill, but cannot create vacancies in offices held by the tenure of good behavior.— From the facts appearing, there was no vacancy in this case.</p>