Volume 48 — Kentucky Reports

<p>The bill and its object.</p> <p>The answer of the Bank.</p> <p>Decree of the General Court,</p> <p>In the act of purchasing the certificates of stock fraudulently issued by the officers of the Schuylkill Bank there was no increase of the capital stock •whicliaiithorizecl an increase of tax by the State of Ky.</p>

<p>Case stated.</p> <p>The savings in the statutes that permit a merchant to sell spirits by a quantity not less than a quart 'if not to be drank in the house, was intended to apply to those who were really engaged in the business of a merchant. It will not do that a few goods be kept to cover the real purpose of selling liquors.</p> <p>The object of the saving is not to protect those who sell liquors to be drank immediately round about their houses; but only those merchants who sell to such as take it away.</p> <p>A party who attempts to bring himself within the savings of a proviso in a penal statute must show that he is protected by the spirit as well as the letter of the proviso.</p>

<p>Error to the Scott Circuit.</p> <p> Obligations. Alterations of Bonds or Notes. New trial. </p> <p>Pet. &Sum. Case 3.</p>

<p>Case stated in compl’ts bill.</p> <p>'Craig’s answer.</p> <p>A purchaser acknowledging! a prior purchase holds in trust for the first purchaser.</p> <p>The proof of Craig’s notice of McBride’s contiactior the land.</p> <p>A _ purchaser seeking a specific performance and a conveyance of title must show performance of his part of the con. tract and pay* xnent oí the consideration accordingtohis undertaking. In such case, if the sale be made by an agent, the principal orbis heirs if he be dead and personal representative, are necessary parties.</p> <p>Where theTe is a defect of parties it is not proper for the Chancellor to decree a conveyance to a purchaser and oust one in possession of land though he may not have any title or right to the possession.</p> <p>The decision of the court that an equity existed and a trust without deciding as to the extent of the equity— shouldpeimilthe pleadings to be so amended as to show the extent of the equity, and especially Dy the introduction into the pleadings of deeds and such other evidence.</p>

<p>Appeal from the Bourbon Circuit.</p> <p> Church property. Parties. </p> <p>Chancery. Case. 5.</p>

<p>The case stated, pleadings • and evidence.</p> <p>A grant of apass-way over the iaml of another confers no right in or power over 'the land but what is necessaiy to ils reasonable and proper enjoyment, (3 Knt. Com. 420, 5 Mason c. c. É. 195.)</p> <p>The grant of a right of way over or through the lands of an individual does not imply, that, the grantor may not erect • gates at the points where the way enters and terminates. It is reasonable that he should have this privilege, and it is not inconsistent with the right of way.</p>

<p>Case stated.</p> <p>When a demand’ is purely legal, and an atlacnment is issued by the order of the Chancellor to seize property, the intent to remove the property (if that is made the ground of the attachment,) must be established — it is that which gives jurisdiction to the Chancellor, •when it is ascertained, he should decree its sale and the payment of the debt. It is a proceeding in rem, and no-decree in personam can be given.</p> <p>An assignee of an account is not authorized to sue in chancery.</p>

<p>Error to the Bullitt Circuit.</p> <p> Obligations. Obliteration of pleading. </p> <p>Debt. •Case 8.</p>

<p>The points involved,</p> <p>]j110W|¿dgeriient before them' is 6 1 n ‘ It is not-necessary to the valid execution of a ■will that it be subscribed in the presence of the subscribing witnesses, its ae-</p> <p>The testator, an old man who wai greallyenfeebled By disease, and who was under the influence of a colored woman •whom he had emancipated, &. seeming to yield implicitly to all her wishes, and to have no mind or will of his own — held to be incapable of malting a will— especially, as by its provisions, all the dictates of natural affection seem tohave been disregarded.</p>

<p>Appeal prom the Marion Circuit.</p> <p> ■Conveyances. Sales of land under execution. </p> <p>Trespass. Case 10.</p>

<p>Case staled.</p> <p>siscerthe the A copy of an indenture of apprenticeshippnrporting to he made by the overseers of the poor of a ter State, tified by clerk, and certificate of the presiding Judge, that clerk’s certificate is in dne form, without any proof of its execution or that it was placed upon record by the authority or direction of the Court; or proof as to the effect of such an instrument in the state from which it came — -Held not to becompeent evidence.</p> <p>An instruction which is based upon incompetent testimony admitted to go to the jury, is erroneous.</p> <p>The master of a person of color to whom the latter had been apprencied after holding and enjoying the services as an apprentice, cannot be permitted to quesion the right ot the apprentice to freedom after the term of service has expired. Though if a slave has been improperly bound apprentice, the owner may assert his right to such slave.</p>

<p>Case stated and pleadings.</p> <p>A court has power over its own records, and may correct its own errors during the term. The Court •sustained a demurrer to a plea in abatement, plead by one defendant, tried the case upon issues of fact as to two other defendants which was found for. them — then arrested the judgment for its own error in sustaining the demurrer to the pica in abatement — then overruled plaintiffs motion for a new trial as to the defendants, who had made issues -of fact. Held that this was error — that the Court should have abated the suit upon suátaining the plea in abatement which was for •the non-joinder •of a co-obligor.</p>

<p>Case staled.</p> <p>By the common on'e *of Several abated the suit, and it commence^ d° |afnstth^survTT01's stone or the represen tative of the decedent, if eraP Obligation" ^‘Ingia'i^and in Ky. by the act of 1797, (Stat. i,aw 88,) and the bateifüíeaction 'lV0,.,ld survive viving _ plaintiff survmngdeft.6 f/j^t^^uthór0 izing the prose-in’suchcasef'in gY°gt 04eorSur-living plaintiff or deiendantin conjunction with the thed6eoei^edpa°^judgment entitled, or liable in differ ent rights.</p> <p>Where one of severa] defendants died, the court required the plaintiff to revive against the representative of the decedent. Held that plaintiff who opposed such revivor was not bound farther to prosecute his suit so erroneously revived, but upon its being dismissed for his failure to prosecute, might resort to this court and have the error corrected, which was done by the order of this court to set aside the order of revivor and let the suit, progress.</p>

<p>case stated.</p> <p>Where money has been paid in obedience to a decree of the Circuit Court, which is reversed by the Court of Appeals, the Circuit Court, by rule upon the party, may cause it to be refunded, and it is not material whethei it has been voluntarily paid to the party or hi3 order, or coerced by execution.</p>

<p>Error to the Andernson Circuit.</p> <p> Assumpsit. Bankrupts. </p> <p>Assumpsit .. Case. 15.</p>

<p>Error to the Boone Circuit.</p> <p> Scire facias. Judgments. </p> <p>Sci. Fa. Case 16.</p>

<p>Where a -covenant of warranty, which descends with land is bro-ten after the landhasdescend■ed to heirs, the -rigjit of action is in them.</p> <p>Where a covenant is to warrant against the claim of a particular person or</p> <p>his tille, il is sufficient to aver an eviction by such tille without aveiring that itwas paramount Patton vs Kennedy, (1 Marshall, 389.)</p> <p>A plea to an action of covenant on a deed for breach of warranty, averring that the consideration recited in the deed to have been paid, is not paid, is not a good plea.</p> <p>The criterion of damages in an action for breach of waivanty, is the consideration agreed to be paid by the vendee.</p>

<p>■Case stated in ■the bill.</p> <p>Allegations of ■the answer.</p> <p>The certificateof the Clerk of a court of a sister State that a will was duly proved and admitted to record, is insufficient evidence of the proof of the will. The orderof the court made upon the proof -should be copied and duly certified.</p> <p>’‘Whereadf’tsels out a title as de* rived through a decree in chancery against h's, and made his answer a cross bill against compl’t, in response to which complainant required the production of the record, but not proof ofthe heir-ship, it ivas held that proof of heirship was not necessary.</p> <p>When the court overruled an exception to the authentication of an exhibit which was the ground of reversal in the Gourt of Appeals — Held that upon the return ot the case time should be given to have the authentication corrected.</p>

<p>Error to the Grant Circuit.</p> <p> Assignee and assignor. Diligence. </p> <p>Assumpsit. Case 19.</p>

<p>Error to the Grant Circuit.</p> <p>Costs.</p> <p>Chancery. Case 20.</p>

<p>Case stated.</p> <p>Covenants of warranty run wiih the lands fit aseeond grantee of only part of the lands may maintain his action upon eviction for the injury he has sustained.</p> <p>The first grantee may maintain an action for each eviction of part of the lands — So may iris grantee of part.</p> <p>The measure of recovery against the covenantor, is the same by the second grantee, as it would have been by the first grantee.— The value of the lands to be ascertained by the price given.</p> <p>It is irregular to sustain a second demurrer to the same pleadings without setting aside the order overruling a demurrer to the first.</p>

<p>A notice to at. lend a survey on the 6tli, and continued after the pai ties had met on account of inclemency of the weather till the 9tb, not unreasonable.</p> <p>Whevo a verdict is sustained by the proof in the record, it is not necessary to decide upon the admissibility of otherprool which was rejected, strengthening the case Tor the successful party.</p> <p>A possession of more than 20 years by the.</p> <p>plaintiff in ejectment, or those under whom he entered, is sufficient 10 maintain ejectment.</p> <p>To constitute a tenancy by curtesy, there must be actual seizin. (6 Monroe, 17£H)-</p>

<p>Error to the Daviess Circuit.</p> <p> Frauds, statute .of. Slaves. Registry of deeds of Trust. </p> <p>Chancery. Case 28.</p>

<p>Error to the Jessamine Circuit.</p> <p> Chancery Jurisdiction. </p> <p>Chancery. Case 24.</p>

<p>Appeal prom the Mason Circuit.</p> <p> Practice in Chancery suits. </p> <p>Covenant. Case 25.</p>

<p>A contract to deliver com at Louisville iti sacks as soon as it could be brought in boals —the place of delivery is at the boat.</p> <p>The price of a lot of corn, of about the same number of bushels, on or about the day oí the refusal to leceive and pay ior the com according to contract, was the proper inquiry iii ascertaining the damages.</p>

<p>Appeal prom the Fulton Circuit.</p> <p> Witness. Release. </p> <p>Debt. Case 27.</p>

<p>pleadingstate¡md OidrcuHncoudthe</p> <p>The common, law of England, in regard lo the liability of innkeepeis, so far as not changed by statute, is the common law here — and it is not necessary to set out the Jaw in pleading.</p> <p>An inn keeper is ■primafacietiahle for all losses which happen to the goods of his guest in the inn. Butnotfora loss by external force or robbery, or if the loss occur by the neglect of the guest, or the act of the servant of the guest or his companion.</p> <p>An inn keeper is one who makes it liis business to entertain travellers or passengers and provide lodging and necessaries for them and then-horses and attendants. (Bao. Ab. Tit., Inns and Inn Keepers ; Story on Bailments, sec. 475.) He may keep an inn without keeping food for horses.</p> <p>He is bound to-entertain suchas desire it, without good excuse, as that his house is full, &e.</p> <p>One who entertains strangers at a watering place is not an inn keeper, nor is the keeper of a coffee house or boarding house. (story on Bail^Kertt’s0' Com. special contract to sojourn for-a time, is not 15. |“®staf boarder' eepers c. 5; Story on Bailments b, sec. • *</p> <p>One keeping a 11 a^licensed ^“occaskinali ly entertain travincurring tte°iifnnkeeper!!* an</p> <p>The court in- giving instructions should carefully leave the jury to their ovm opinion of the facts. The- court should especially, aben asked to |jK*o, correct ccKPsel in any mi-statement of the law to l¿e jury in argument.</p>

<p>Case stated,</p> <p>a judgment in tyonfa separate gamedebt would not extinguish the principal on üM.OWltis°otiierh^a joint obligation. (2 J. J. Mar., 608.)</p> <p>A surety, bound tor the same demandseparateiy, is a competent witness for his principal, if released by him.</p>

<p>Case stated.</p> <p>Courts 'of law have power to ■order the repayment of money paid under its ■authority where its judgment is •subsequently reversed. The ■same power exists with the Chancellor, in a ■proceeding by rule.</p> <p>Upon a.proceeding by .rule to compel restitution ^ of money received under a ■decree which was subsequently received, the •court should not .permit the party •to set up as a •restitution any claim outside of the original suit •and not disposed ■of by the decree, but the party ■should be put to •his independent •suit.</p> <p>The return ofthe Sheriff on execution that the money was made & paid to plaintiff, is sufficient evidence of the receipt of the money by plaintiff upon a rule to restore it to defendant. But a bare return of satisfied,' without stating that it was paid to plaintiff — or a return that the money was paid by the defendant to plaintiff, or his attorney, is not sufficient.</p>

<p>Error to the Nichoas Circuit.</p> <p>Ejectment. Limitation. Possession..</p> <p>Ejectment. Case. 31.</p>

<p>Error to the Jepperson Circuit.</p> <p> Appeal bonds. Construction of statutes. </p> <p>Covenant. Case 32.</p>

<p>Case stated.</p> <p>If any part of a promise, whether verbal or written be illegal, the ■whole promise is void. So the compounding a prosecution for a felony — or an agreement to suppress evidence in a judicial proceeding, is unlawful as against public policy, though it be the evidence of the injured party, and is not a valid consideration for a promise either verbal or written.</p> <p>It makes no difference whether the prosecution he commenced or not.</p> <p>An obligor is not estopped by the fact that a consideration is stated upon the face of a note -which appears to be valid, from aver. ring and proving also a farther which was mepublfo poíu3y.nst</p>

<p>Error to tiie Jessamine Circuit.</p> <p> Grantor and grantee. Infants. Limitations. Presumptions.. </p> <p>Detinue. Case 34.</p>

<p>Case stated.</p> <p>A plea by a Sheriff to an action of replevin, averring that the property was taken by a chancery attachment, that it was the property of the defendant to said, attachment, and that the suit was pending when it was taken, is a good plea.</p> <p>A plea alleging property in a strangerisagood plea in replevin. (1 OMtty, 471: 12 Wendell, 30; 4 B. Monroe, 5.)</p> <p>The statute of 1842 admits of the filing of as many pleas in replevin, either of law or fact, as defendant, as wellfas plaintiff, may think necessary for his or her defence. (3 Stat. Law, 507.)</p> <p>Where a fact occurred after the making up issues upon pleadings filed, of which, counsel was not informed until after the jury were sworn, if it were material, the court in its discretion might admit it to be plead or replied and brought into litigation, and, if necessary, to the ends of justice, set aside the order of hearing and continue the case.</p> <p>A defendant who detains a slave after the institution of an action ■of detinue or replevin, is responsible for his value if he die after • suit brought.— ( Gentry vs Barnett, 6 Monroe, 118.)</p> <p>Instructions of the court.</p> <p>A plea of property in a stranger on replevin, throws the onus ■upon the party pleading it, (1 B. Monroe, 241,) where the taking is alleged to be from plaintiff; but if the plea also traverse the allegation of property in plaintiff, plaintiff is bound to prove property in himself as alleged.</p> <p>Slaves given to the wife during coverture vest absolutely in the husband.</p> <p>Upon a finding for defendant, on the plea of properly in a stranger, judgment for return should be given. (I Johnson, 380; 2 Lev. 92; 1 Salk. 94.)</p> <p>A parol gift of slaves not valid against the creditors ofdonor until possession be held for 3 years under it. (3 Marshall, 242; 6 B. Monroe. 169.)</p>

<p>Appeal from the Louisville Chancery Court.</p> <p> Carrier,. Bailments. Bills of Lading. Mistakes. </p> <p>Chancery. Case 36.</p>

<p>Case stated.</p> <p>The Chancellar has the power, after a failure of a purchaser of property, sold by his order, to pay for it to order its re-sale — ’Which may be for cash, or on a credit, as the Chancellor may deem most proper.</p> <p>deHng^re sale of property sold 'decree,Un<witeíe had paaTpaxt of the purchase specificaiiy state sum to bíralsed by the sale.</p>

<p>Error to the Estile Circuit.</p> <p> Libel. Slander. </p> <p>Case, Case 38,</p>

<p>Error, to the Garrard Circuit.</p> <p> Set-ffo. Pro-rata distribution of estates. </p> <p>Debt. Case 39.</p>

<p>The loser of money at unlawful gaming may recover it back by bill in chancery. (McKinney vs Pope’s adm’r, 3 B. Monroe, 93; Lyle vs Lindsey,. 511., J23.)</p>

<p>Error to the Montgomery Circuit.</p> <p>Mortgage lien. Execution lien.- Landlord's lien, Rent»</p> <p>Chancery. Case 41..</p>

<p>Error to the Hopkins Circuit.</p> <p> Parties. Pleas in abatement. Practice in suits at law. </p> <p>Chancery. Case 42.</p>

<p>Case stated#</p> <p>JB'y Hie ancient common law, no1 action fot tort im form1 ex delicto1 where the plea was not guilty'f where either party died, could bo revived. This was changed by the constructions pat upon the statute, (4 Md-ward, 3) — so far as- to allow the representative-of the party injured1 to> sue for am in-j'ury to personal property of the d'eeedent. (1 Ghitty, 78-80 & 102-104.) And by the statute of Ky. of 1797, "(Stat. Law 670,) actions of trespass are given by or against executors or administrators for goods taken or carried, away in the lifetime of the testator. The statute of 1801, (Stat. Law, 86,) provides, that in •case either party to an action ■die after tire service of the writ the action shall not abate, if it were originally maintained by or against the executors of the decedent, but may ibe revived by •■sci. fa.</p> <p>The statutes did not embrace injuries to the person or to the realty until 1842. (3 Slat. Law, 573.)</p> <p>Executions directed to any Constable of the county may be received by one and handed over to another to be executed, or if levied, to sell, &c.</p> <p>A Constable selling property upon which a Sheriff has previously leviea may F'0P®rlON the Sheriff’s lien in virtue of his levy, when he sells.</p> <p>tyfir"toPbe!ev" ied upon by sheeonseaurf deft</p> <p>There could be no excessive levy where the property failed to bring the amonnt of the debt without any unfairness in the Sheriff.</p>

<p>Error to the Harrison Circuit.</p> <p> Ejectment. Surveys. Forfeiture of lands. </p> <p>Ejectment. Case 45.</p>

<p>Case stated1 in the bill.</p> <p>The answer Marshall. of</p> <p>The Proof in the OtlS0</p> <p>'Iíi&dequatíy of 'consideration alonenot aground ¡for ''cancelling '¡a 'contract.</p> <p>Though a decreo may be final, yet by consent it may bo dpened at a subsequent terra. A decree against a party who is dead, is not binding upon his heirs or representatives.</p> <p>The parol promise of a father-in law to give his son-in-law land upon his paying part of the price not binding upon his heirs or devisees; and if the part payment by the son-in-law was with the means of the father-in-law there was no pretext for a lien to that extent.</p> <p>A purchaser who is in possession ©f such fijéis as would put a prudent tiran upQii his guard induce him to investigate title, but who fails to do so will not be protected by the Chsnceilor as an innocent purchaser without notice.</p> <p>A purchaser with having n°mtitle canbe in‘ forced, is not in any better condition than the vendor.</p> <p>A feme covert devisee in remainder, whose husband had conveyed, assorted her right in remainder and her claim sustained by the Chancellor.</p>

<p>Case stated in ¡the hill.</p> <p>Decree of Circuit Court.</p> <p>Where property conveyed in trust was sold by the trustee and the proceeds applied under the direction of the maker of the deed and the cestui que trust, the court will presume that it was rightfully applied. unless it be shown to the contrary.</p> <p>Tiro administrator of one making a deed of trust should administer tho remainder of the sale Eof the°rust satisfying “thé claims of ccsLui que irust — and ll Se fail to sue for Before1 herbarheh-sy ^rc ° also 6&«Gd.</p> <p>a stale• demand tho _ favorable lhc Chancellor,</p>

<p>The decree of tits-* Chancellor.-</p> <p>M. sold to D. M. a tract of land, retaining a lien for the purchase money. D. M. sold to L., who required that M. should release the lien. D. M. paid for the land at the price stipulated and quantity supposed.— M. thereupon gave the release. In the deed from M. to D. M. there was a covenant, that if the land fell short in quantity, M. was to deduct from the price at $35 per acre; if it exceeded the supposed quantity, D. M. to pay at the like rate. It was found, upon survey, that there was a surplus in the tract — Held that the release did not embrace the claim of M. against D. M. for compensationfor the excess, being without consideration, and not intended by the parties, to embrace it.</p> <p>Where a vendor conveyed a supposed number of aeres, and at the foot of the conveyance the par-lies stipulated to pay for deficiency or excess at a stipulated price peí aere, it was not the duty of one more than tlie other to ascertain the true number of acres, and no interest would follow until the excess or deficit was ascertained.</p> <p>Generally where there is an excess or a deficit in the qnantity of land intended to be conveyed, neither interest or rent should be paid by the one or I hr; other poriy.</p> <p>L. purchased of M. who had purchased of A. G. M.; each was to keep any surplus and pay for it at a stipulated price, or receive compensationfor any deficit at like price. L. conveyed to D. M. in the same way. M. being a nonresident, A. G. M. sued L. and M. to compel L. to pay for the surplus which M., the nonresident, owed for — Held that L. could not be made resposibla beyond his liability to M. from whom he had purchased.</p> <p>A deed expressing upon its face to convey so many aeres, “mora or less,” is not •conclusive a•■gainst a claim of ■vendor for pay •for surplus, or vendee for deficiency. So, if ¡the contract be «ejceeutory.</p> <p>Admissions mi pais ate not conclusive except where third persons have acted upon them — they cannot he denied in such cases to the prejudice ot such third person.</p> <p>An agent showed land which his principal had sold to a purchaser from a vendee of the principal who bought upon his representation— the agent a iterwards bought of the purchaser;— the deed called tor 160 acres, more or less— there was an excess of 30 acres; the agent claimed to hold it, but sued his vendee to have compensation made to his principal— Held that he ■should account to his vendor.</p>

<p>Appeal prom the Gallatin Circuit.</p> <p>Partnerships. Bankruptcy. Practice in Chancery.. Bills of exchange.</p> <p>Chancery. Case 36.</p>

<p>In computing time under the ■statute limiting writs of error, the rule is to ex-'dude one day •and include the «other.</p> <p>•A contract valid and upon good consideration, •'(does not become invalid by being ; used for an un'•lawiul purposes.</p>

<p>Error to the Clarice Circuit*</p> <p>Partners and partnership. Assumpsit.</p> <p>Assumpsit. Case 50.</p>

<p>Case stated.</p> <p>A joint action cannot bo maintained against two individuals for the slander of a title to land, by words no conspiracy being be maintained for the joint publication of a libel; it is a joint act. (1 Ghty’s Plead., 98; 6 John., 32; 17 Mass. Bcv., 186.)</p>

<p>ease stated.</p> <p>Dedications of land for public use may be % parol. (6 Pet., 431,; 3 B. Mon., 437,; 8 lb., 232.)</p> <p>to^Lw^borping on a navigable water couise, is propth^trustees^f^ Though the legal callymay remain etoíoí^a town to streets, yet he is but a trustee lor the benefit of the town, and the trustees of the thsTuse controls</p>

<p>Appeal prom the Montgomery Circuit.</p> <p> Wills. Devisees. </p> <p>Chancery. Case 53.</p>

<p>Tlae case stated.</p> <p>Where a trustee, without the direction. of cestui que trust, gave up and released the trust property before the debt was paid, which was intended to be secured by mistake, it did not operate a release in equity oi the lien on the property.</p> <p>A debtor wlic buys a demand against a trustee cannot set off such debt against cestui que trust, to the prejudice oí cestui que trust.</p> <p>A father sent to liis daughter upon having her first child, a negro girl, which was permitted to remain there 6 or seven years; during that time she was mortgaged by the son-in-law, when she was brought back and given to a younger daughter, who dying, the father devised her to his wife in trust for the 'married daughter — Held that she was liable under the mortgage to tire creditors of the husband.</p> <p>No decree inper^ sonant can be* vendered against? a discharged bankrupt on ac~count of a mortgage debt due! before, and pro-vable under ihe! bankruptcy.</p> <p>Where a trustee represents the interest of the beneficiaries and., they were numerous, cross ¡pleadings amongst creditors and beneficiaries not esteemed indispensible parties.</p>

<p>lCase stated’</p> <p>It is error to give judgment against one who was not served with process — or to give judgment against one defendant sued, without disposing of the suit as to the other defendant.</p> <p>—Nor can the court, without a jury, render judgment upon an injunctionbound uniess a jury be dispensed with by consent.</p> <p>An injunction bond given upon bill filed before judgment, securing the amount which may be recovered at law, and costs, in case the injunction shall be dissolved, is claiming within, the statute of 1796— (Stat. Law, 809.)</p> <p>. ,. . , junction bond not required by law, but not against law, will. tha\ are^eqSred ^law—And the insertion of conditions in an in-</p>

<p>Case slated.</p> <p>A trial was had on a motion for a new trial entered of record, which it was agreed should be argued in vacation, which was done, and agreed that the bill of exceptions be entered at the next term, when the case not being noticed upon the record at the next succeeding term, the bill of exceptions was signed and filed without objection — Held that there was no injurious irregularity available in this court.</p> <p>Cdrtra«sdfsdle governed"1 by the daw of theplace.</p> <p>The practice of so putting up goods, fbagging) as to present a favorable exteri- or, not truly representing the interior, is fraudulent, especially where the brand of the manufacturer had before a good reputation.</p> <p>It is the duty of a vendor to disclose any defect in the article which heisvending, unless it be palpable to the purchaser.</p> <p>theancas610nfor fraud in the sale of personal pro-deity,neither the ana nor Kyl° aiithonze the jury live damages.</p> <p>Where a purchaseTofproperty sends it back °hat Ti^Ts^doi foiUa®j¡^esSfor the fraud, he cannot recover as part of the transportation^ 9thec mci” The measure of actionin'1 the ease for fraud in sonai property is between the arwLt Tras given for it.</p>

<p>Appeal prom the Fleming Circuit.</p> <p> Purchaser pendente lite. Bills of review. </p> <p>Chancery. Case 57.</p>

<p>Error to tiie Christian Circuit.</p> <p> Sureties. Attorney and client. Payments. Bills of exchange. </p> <p>Debt.. Case 58.</p>

<p>Case stated.</p> <p>In the trial of a traverse for forcible entry and detainer, the sole question tor the decision of the jury is the truth, of the finding of the first jury. (3 Bibb, 100.)</p> <p>In forcible detainer, the jury in these words— “We of the jury give the plaintiff possession on the 8th of May,” the finding being traversed, the next jury found “the defendant guilty of the forcible detainer complained of in the warrant”— Held that such finding did not authorize a judgment for restitution.</p>

<p>Case slated.</p> <p>The verdict, judgment and motion for anew trial overruled.</p> <p>The vacant lands previously to 1835, were appropriated under land warrants from the Regis» ter ot the land oflico. At that date Uie vacant land North of the Tennessee river, was vested in the county courts of the counties in which it was situated, and the courts authorized to sell, &e.</p> <p>Surveys upon count y court warrants, interfering with certain other surveys, or actual settlers, void by the statute of 1835. The act of 1836 declares all surveys under such warrant void, so far as they interfere with lands patented before the date of the act. The act of 1837 authorized the appointment of a county treasurer to receive the price, and upon his receipt filed, the clerk to issue the warrant,</p> <p>The court cannot collaterally determine a patent void- entiiely where it is not so declared by law.</p> <p>Patents issued by authority of Ky. warrants, which issued by authority of the statutes of 1835, 6,7, 8 and ’40, are void so far as they interfere with previous surveys or actual settlers.</p> <p>The champarty act oí 1)824 does notapply tosales made under decrees of court. (1 Dana, 216t St lb. 337.»</p> <p>It is not essential the jury shall find the exact quantity of land in possession of a defendant in ejectment.</p>

<p>^hat^a ^l^itor hand a part ofa ing to abate a part °sf ^1® su^ieni consideration lot such abatement, ceuor to injoin iis oollectlon-</p>

<p>Error to the Nicholas Circuit.</p> <p> Depositions. Notice. Possession. Instructions. </p> <p>Ejectment. Case. 62.</p>

<p>Error to the Louisville Chancery Court.</p> <p> Sales of land under execution. Redemption. </p> <p>Chancery, Case 63.</p>

<p>Case stated.</p> <p>The court will not presume on account of a date of a remo-1 val of a certificate for heads right land given in a patent that the court acted when it had no authority to grant removal, & declare a patent void.</p> <p>A county court ted in the county where it was granted, when withdrawn in the same county, might be re-located in any othej county.</p>

<p>A tract of land was sold for a. balance of the cons id elation due (about 8541;) the defendants were infants except two, who, for a consideration paid to them by the purchaser permitted the whole tract (81 acres) to be sold to pay the 8541— Held that the purchaser held in trust for the infants & should surrender upon being indemnified for his outlay, &e., but as an innocent purchaser from the first purchaser was protected, and the first purchaser made responsible pecuniarily.</p>

<p>Exceptions being overruled lo depositions, and no exception being taken to the opinion of the co'irt, does not raise the question on the propriety of the decision of the cirtinit court in overruling the "exceptions— so far then admissibility depends upon extraneous facts, such as notice, &c.</p> <p>A purchaser of a slave held by an unrecorded loan by the vendor for more than live years w 11 be pr< - tected, though he had notice that his vendor held by a loan only. (I Mar., 210.)</p> <p>Hat if a contract is conditional, and the purchaser is to pay only in case he can hold against the lender, the purchaser is in no* better condition, than the loanee, and will not’ be' protected.</p>

<p>Caso stmed and lacts proved.</p> <p>Questions preion.</p> <p>A deed forty yr’s old under which possession had sranteeiad^iose claiming under him competent evidence, tho’ not recorded or otherwise proved.</p> <p>Land devised to beheld untilsold vest in the heir at law.</p> <p>A feme covert cannot make an! election which will be valid unJess in relation to the properly or thing about which she is to make the election; she has the power to act as a feme sole. Can •the husband act? •Querie.</p> <p>• Surveysare compelen! evidence 'in ejectment to '.prove extent of ¿.possession.</p> <p>The presumption is, surveys were made by Ihs magnetic meridian. 'fhe variation of the n’elle is matter of fact, not of law.</p>

<p>Case stated,</p> <p>A surity who has paid a fiduciary debt (or his principle is entitled to stand in the place of his'principal, and if the debt were a preferred debt under the statute of 1839, for the settlement of estates, the surety has a right in equilyto the benefit of such preference.</p> <p>—But to authorize such substitution, there must be proof of the payment of the debt, and that it was paid in-discharge of a legal liability .-</p> <p>Money received by an attorney for his client ltept distinctand not mixed with the money of the attorney, is not to be administered — does not enter into the estate.</p>

<p>Appeal from the Green Circuit.</p> <p> Alimony. Divorce. Dower. Legislative power, </p> <p>Chancery. Case 09.</p>

<p>Error to the Fayette Circuit.</p> <p> Guardians. Preferred creditors. </p> <p>Chancery. Case 70.</p>

<p>Error to the Boone Circuit.</p> <p>Ejectment. Possession. Lapse of lime. Presumption„</p> <p>Ejectment, Case 71..</p>

<p>Case staled.</p> <p>The object' oif Wall’s bill.</p> <p>The defence made to his claim.</p> <p>The decision of the circuit court.</p> <p>'Those in remainder purchased •out a life estate in land of a widow, to be paid for in part of the proceeds of the land — Held that •all in remainder might claim to he interested in and entitled to the immediate ¡possession of the estate or its proceeds.</p> <p>Land devised to tile widow for life and then to be divided between the testator’s children, gives a valid interest in all the children living at the death of the testator.</p> <p>Land is devised to Uie widow for life, then to be sold and the proceeds divided amongst the testator’s children. Those entitled to the ultimate estate purchase out the life estate; one of the devisees, a daughter, dies, leaving one child — the child dies — Held that the life estate not being determined at the death of the female devisee in remainder, and there being no conversion during the life of the child, that the father of the •child could claim no part of the .price of the land.</p> <p>In the construction of wills the manifest intention of the testator is to govern, if not against law and all rules of construction, ave observed for this end.</p> <p>Land directed to he sold after the termination of p. life estate and videc|10Camongst childrenStatand their descendants, there being no descendants children at the minatíonthof the life estate, none other can take as heir to the last suchas his heir.</p> <p>A legatee dying before the happening of the event upon which the legacy is to become vested, has no transmissible interest which apersonal representative can claim.</p> <p>Land to be sold and divided amongst the testator’s children after the limitation of a life estate or their descendants. If ■one die without ■descendants, before the limitation of the life ■estate, leaving ino descendants, the interest of •such an one fall tto the survivors •and their descendants.</p>

<p>'Case slated and judgmentappealed from.</p> <p>Thequestionpre» seated for decision in this case.</p> <p>They who own ]aind adjacent 10' an incorporated town, may, on their petition, have their land inclosed within the limits of the corporation.</p> <p>The Legislature have in liy. the power of grantoTiacorporatfon such poweT^on other authorities.</p> <p>been*1 lintnand peopled, theLethe^power^to grant an act. of incorporation without the assent of all its citizens, or even the majority.</p> <p>Jave Lo?veratun0 der the consiiiuritory to a town nshed^upon^the s,ame principia that they may incorpórala a town'</p> <p>The Legislature have the constitutional power to confer taxing power upon local corporations ■in tieir government and security.</p> <p>All the lands oí the Commonwealth are held subject to the genera] power of the Legislature to tax ihem, either for general purposes of government or (or local purposes wilhin localities in which they may be situated.</p> <p>__ Where a town stands in need of a local govern“[jb |o°emment, but may constitutionally give power to its to°tóx5ie0pioperty and ciuzens within its limits for the support menT s°vem</p> <p>The extension of the limits of a town wheieby the property of an individual has been brought within the corporate limits without his .consent, and subjected to taxatienfor town purposes, is no infraction of the constitution by taking private property for public use.</p> <p>This power maybe abused by an unreasonable extension of town limits, so- as to embrace farms, &e.</p> <p>The power of opening streets and alleys in grounds so attached may not exist, if it has not been dedicated by the proprietor, without just compensation being made.</p>

<p>Case stated.</p> <p>The statement of a vendor in regard to his title after he has parted with it, are incompetent agninst his venadee.</p> <p>—Bubthe vendor himself was examined against his vendee as to his interest and what he had sold on a rule in a «chancery cause.</p> <p>The decision of the'Cirauitcourt.</p> <p>A sale of mortgaged property is made at the instance and on the bill of two jomtmortgagees; one purchases in the property for their loint benefit — Held that the Chancellor may, at the instance of the other, compel a joint conveyance to the paitners or their alienees, try its officers, malting the sale.</p> <p>It is the practice of the Chancellor to carry out his decrees of sales of real estate and place the title in the party entitled thereto, whilst the suit and parties are before him.</p>

<p>Case stated,</p> <p>The obligor may set oft' the note of the obligee acquired belore the obligee had parted with his note. Triplett vs Bradley, (6 Monroe, 3551 Or he may set off the joint and several note of the obligee, and another acquired under like circumstances.— Bunn vs West, (5 B. Mom oe, 376.) And it constitutes no good objection that the note offered to be set off is held in trust for a third person — he has the legal right to use it — no violation of trust appearing.</p>

<p>Case si‘atetL</p> <p>The iaet that a defendant might have been indicted or presented fox a different offence, does not show thathemaynotbe indicted for an offence which •consists in so frequent a repetition thereof as to amount to another offence more highly penal.</p> <p>Selling spiritous liquor to slaves, and their remaining about the house of the seller and behaving disorderly, is keeping a disorderly house.</p>

<p>'Caso stated.</p> <p>A defendant has no right to demand a trial by jury in a penal case unless the fine upon conviction exceeds £5, or is uncertain.</p> <p>Upon a joint presentment for adultery, the ad* missions of one nagafnst the</p>

<p>Appeal prom the Garrard Circuit.</p> <p> Decretal sale. Chancery practice. </p> <p>Chancery. Case 78»</p>

<p>Case and pleadings.</p> <p>An assignment must be in the name of the person holding the legal property i* the note, is indispensible to authorize an action in the name of the assignee.</p> <p>The wife assigning the note of the husband in her name, tho’ done in the presence of the husband, will not pass the legal right to the note and authorize a unit'in the name of the assignee.</p>

<p>Error to the Garrard Circuit.</p> <p> Devises. Ademption of Legacies. </p> <p>Chancery. Case 80.</p>

<p>.Case stated.</p> <p>A promise not to be performed until the death of a certain person, being contingent is not within the statute of frauds. (4 Dana, 137; 8 B. Monroe, 423, Chitty on Contracts 68, note 2,)</p> <p>A verbalpromise to pay ior land which has been conveyed is inforeibie.</p> <p>Where promises are mutually the consideration the one of the other performance by the one gives right of action to* the other.</p> <p>The' faiher-inJ’aw|3i'omised the son-in-law, that if he would sell his farm and come and buy thatof the father-in-law at a stipulated prioe,that he, the father-in-law, would give him $1,000 at his death — Held that the promise was not within the statute of frauds.</p> <p>Though the court of Appeals may not be satisfied that the jury decided as they should have done, yet against the opinion of the circuit Judge no new trial will be granted, unless there is a decided prepondormice of evidenceagainstlhe verdict.</p>

<p>Appeal from the Scott Circuit.</p> <p> Evidence. Assignor and assignee. Warrantor and alieneee. </p> <p>Chancery. Case 82.</p>

<p>Cass stated.</p> <p>Where there are mutual cove» mints to he performed, and per* formance by one or part performance is necessary to enable the other to perform, no action can be maintained without an averment of performance, an offer to perform, or some valid excuse for no n-p erformance.</p> <p>Where property is payable at a particular place and on a particular day, no demand is necessary. (1 Bibb, 452-3.) But in such case, it is not necessary that the defendant plead that he tendered at the day and place— It is sufficient to aver readiness to deliver at the clay and place, and that the plaintiff did not attend to receive. (L Bibb, 453; 3 Salic., 342.) And when an act is to be done bythe plaintiff which is necessary to enable defendant to perform, it is sufficient for defendant to show that he had done all he could do until plain tiffhad performed such act on his part.</p>

<p>Error to the Montgomery Circuit.</p> <p> County Courts. ' Emancipation of negroes. Parties. Injunctions. </p> <p>Case 84.</p>

<p>The object of the: bill of Thompson.</p> <p>The answet <s4 Eobertson,</p> <p>A sale of.a tract lofland described as the tract on which the vendor resided, containing 173 acres held to embrace two islands in the Beach Fork, 'containing together 8 acres which the vendor had used and held, and without which there was less by about 5 acres than the quantity called on in the bond.</p> <p>The act of 1792 required Justices of the Peace certifying deeds acknowledged before them under the hands, and that they were subscribed in their presence. That of 1796 required them ' to certify under their hands and seals. But the act of 18á2-3, dispenses with the necessity of the seal.</p> <p>Where a sale was by the acre, the purchaser filed his bill for title, if to be had, or so far as vendor could show title, and pay for any deficit — he made title to the quantity sold and three acres more— Held that it was proper on the cross bill of defendantto decree payment therefor.</p>

<p>Error to the Crittenden Circuit.</p> <p> Ejectment. Limitation. Possession. </p> <p>Ejectment. Case 86.</p>

<p>Error to tiie Greenup Circuit.</p> <p> Trespiass. Justification under process. </p> <p>Trespass v. A. Case 87.</p>

<p>Case stated,</p> <p>Aay|°J 33* ‘■payable in §?e dp^eme?aV'" delivered, on the upsburg, at $29 liaise" argeTby || cents on the day appointed for payment. .(2 Blbb‘ 584-'></p> <p>The uroner n-mo'inl. of dairrges for failing to deliver property, js the value of snoh properly at. the time and place fixed for 'delivery.</p>

<p>Case staled.</p> <p>An executed contract lor indulgence made by the principal obligor with Ihe obligee, will be a release of the surety. (1 B. Monroe, 325.)</p> <p>The creditor a* greed with the* principal debtor lo indulge without the consent of the surely and to receive the price of indulgence in boarding— look an obligation for the boarding, ^ received satisfac* lion and surrendered the obliga* tion — Held that this was a release of the sur* ely.</p> <p>—But a surety who was assenting to such arrangement and indulgence, is not discharged.</p> <p>Where -a surety has a mortgage from his principal for his indemnity, though the surety may be exonerated by indulgence ofthe principal given to the debtor by the creditor, yet the mortgaged properly will be liable, and if other debts bp also provided for by the mortgage, to a prorate contribution.</p>

<p>Case staled,</p> <p>The statute of limitations, tho’ not in terms applying to suits in chancery, will be applied by the Chancellor in analogy to its application to suits at law. It has been applied to suits in chancery upon the oldest entry. (2 Lilt., 56; 6 lb., 510;) and decided a bar to a suit in equity to recover against the elder patent, and 20 years adversepossession.</p> <p>The holder of [He1 legal title has the right of entiy, and an entry upon any part of the tract extends to the whole boundary, tho’' a superior equitable title may exist in another.</p> <p>—But an entry-under a junior patent, although there bea superior equity with the junior patentee, gives no possession to the junior patentee inside of the elder patent, there being no right of entry.</p>

<p>Appeal prom the Jepferson Circuit.</p> <p> Assumpsit. Attorney and client. Interest. </p> <p>Chancery. Case 91.</p>

<p>Case stated.</p> <p>The husband and wife unite in a request to the lather of the taií^lomi °of ^powe^of^attoniey to the brother of the husband to sell wife to °e-pay money. Afterthe the wife^ek-to have the prohmd°deereedtto eoiiiiHendothatbe done — that she having parted with her right, elaimit.n0t Ie"</p>

<p>Appeal prom the Lincoln Circuit.</p> <p> Non est factum. </p> <p>Chancery. Case 93.</p>

<p>Error to the Fayette Circuit.</p> <p> Caveats. ■Rivers. Vacant lands. </p> <p>Caveat. Case 94.</p>

<p>Gase Btated'--</p> <p>■A father 'made a. 'deed of 'trust of ■slaves Tot the use of his children, the Trustee declined lo accept the trust, and after the lapse of about J 9 years, one of the cestui que trusts obtained a decree for her partoflhe slaves; in that suit the donor resisted and denied the validity of the deed, the other cestui que trusts denied it also.— Subsequent after the lapse of another period of 19 years the heirsof the other two cestui que trusts bring this suit for a division of the slaves —Held that they were barred by lapse of time, if not estopped by the former answer of their ancestor.</p> <p>The holding in trust of slaves by a father openly denied, &c., no suit for 15 years, and when suit might have been brought— Held a bar by lapse of time to any suit for the money.</p> <p>Where the personal representative has the right of action and permits a bar to tale place by lapse of time the heir is bound by his laches.</p> <p>Where the statute begins it runs against the ancestor in bar of personal action; ft continues to run against the heir--in fancy notwithstanding. Not so in respect af lands. 13 Monroe, 39.)</p>

<p>Case slated..</p> <p>Tlie' courts of Ky. have jurisdiction to grant administration upon the estate of anon-resident where one resides against whom he had a judgment Tendered. (1 Marshall, 3C3; 5 Monroe, 40.)</p> <p>The statute of frauds presents an obstacle to a recovery upon any verbal contract, not to be performed within one year from its being made. That it has been in part performed will make no difference.</p> <p>Persons of color foT^etermrof thatprobmiseawas transferred by parol — they refused to perform vice,'and*theaspj^ent — Held ,that , he ‘Htas bound to pay for such time as !herehabeingV no’ f^aj^thecontract by the assignor.</p> <p>A contract for personal service or an indenture ship,uPnot^assisnaWe*</p>

<p>Error to the Garrard Circuit.</p> <p> i,Sureties. Attachments in chancery. </p> <p>Chancery. Case 97.</p>

<p>Error to the Garrard Circuit.</p> <p> Assumpsit. Jurisdiction. </p> <p>Assumpsit. Case 98.</p>

<p>Case stated and pleadings.</p> <p>Insteuclibns giv* en by Circuit Judge.</p> <p>Judgment of the</p> <p>That the verdict of the jury is for a sum in damages only is not an available error. Though the Court err in ail instructionto the jury, yet if the jury disregard it, the party opposing it is not injured, and cannot reverse for that cause. It is error to compound interest upon a balance found in the hands of a guardian on settlement.</p> <p>In an action by two joint obligees, the def’t. cannot set offhis demand against one of them without the consent of the other. Though husband and wife sue for a debt due to the wife before coverture, it subsists as a debt due to her, and will survive to until there be a joint judgment— And while it subsists unappropriated, vvillsuivive to either upon the death of the other. And nothingshort of the actual appropriation by the husband, or by an agreement to assign, based upon a valid executed consideration can extinguish the right of the wife. (Quere, is this sufficient?) In equity the actual assignment of the husband is not always re. garded as deprj. ving the wife 0f her equity t0 have provision, made for her out oí her ohoses in action, if they remain unfound".</p> <p>When the remedy is lost against a surety upon a bond, to revive the bondandgive remedy thereon, the ohligor, with a knowledge of his rights, must acknowledge the obligation of the bond upon him with the intention of giving effect to it as a subsisting obligation — or knowingly and intentionally induced, some action in regard thereto by theobligeewhich it would be a fraud to defeat.</p>

<p>Case stated.</p> <p>To authorize the filing of an answer of a nonresident after a decree has been rendered in a cause to which, he was party, by constructive service of process, the answer should be sworn to by the party himself, or by some one possessing a knowledge oí the facts set forth in tfye answer.</p>

<p>Case stated,</p> <p>Tteproper eoun* íeeord^a^morN |ersonafproperis that of tlie residence of tlie mortgagor, (» :Dana’ 5594</p> <p>By tlie- act of gfge’ upon^ny estate1 ¿Valid* unless deposited forrecovcnn the County Court ■county where tíre greater °r part thereof lies.</p>

<p>Error to the Clarke Circuit.</p> <p> Wills. Jurisdiction of Probates of Wills. </p> <p>Chancery. Case 102.</p>

<p>Case stated.</p> <p>if defendant in fng th^priviiege g°i¿edee^0euro another^ l° ro? money6 mSei°a nmífat^futuré ^h^aSd^econvey upon the moneyadvanced statuteWoffiauds f”dut aI]pledgé of the'equity of de1</p> <p>The time limited ¿emptio/ofland spi4 unier exe‘ culion, may be extended by paxol contract -without interferute^ñaudsí11”</p>

<p>Case stated.</p> <p>No writ of error lies to a decree granttng a divorce; (5 Dana, 499; lb. 184.1</p> <p>Though a decree against an'infant feme covertis not valid but subject to reversal, it is not void: (3 Mm shall 254e 282, ( but may be reversed if done in apt time, the error cannot b, rendered available collaterally, in another suit.</p> <p>An infant feme covert who, alter coming of full age, acquiesced in a decree in her behalf for alimony, and which she, while in infancy, agreed to accept, and did accept in lieu of ’ower, denied ower in lands old under exertion to pay msbaud’s debts luring cover,ure.</p>

<p>Error to the Fleming Circuit,</p> <p> Administrators. Interest. Bills of Review. </p> <p>Chancery. Case 105.</p>

<p>lie ease on the liginal bill.</p> <p>Allegations oí amended bill.</p> <p>The answer.</p> <p>Decree of the Circuit Court.</p> <p>A purchaser of lindhas a right to extinguish liens upon the land purchased, by buying in the land when offered for sale under decree to satisfy sn eh lien.</p> <p>Contracts to pay usurious interest, since the act of 18J9. are no farther void than as they stipulate tor the payment of more than six per cent. A vendor agreeing to accept his own bond, in rvhich there is usury included, in part pay fur. land sold, does not sanctify the usurious contract or create any new obligation to allow and pay it — nor is the contract for the land rendered unobligatory by the refusal of vendor to allow the usury. A stipulation that the price of the land, shall be reduced if the usury is not allowed is not obligatory, being intended to coerce the payment ef usury,' the price be-ins full and- fair without it,</p> <p>A purchaser holding a note for money upon the vendor, in which there was usury, for a small part of the' price of land purchased which, vendor had agreedlotate up in part of the price, though not binding as to the agreement to pay usury — yet it constituted no ground for a refusal of vendor to refuse a specific performance, and it was denied.</p>

<p>.Appeal erom the JeEeerson Circuit.</p> <p> Grants. Right of Way. Corporations. </p> <p>Chancery, Case 107.</p>

<p>Cass stated.</p> <p>A’creditor who levied upon the equity of redemption mortgaged, not precluded from af-. terwards levying his execution upon the same property and selling, disregarding the mortgage.</p> <p>A purchaser who purchases property sold subject to mortgage may become the purchaser under a secondsalemade of the absolute property, disregarding themortgage, and wnen sued by the mortgagee, is not es-topped by his first position, to show that the mortgage was iraudulent and that his second purchase passed the entire title to the property.</p>

<p>Case stated.</p> <p>A conveyance in trust by the wife while in treaty for a marriage, of her property, securing it to herself and children, without the approbation of the intended husband, who afterwards marries her — Held to be a Iraud upon the marital lights of the husband and void: (7 Monroe, 489.-</p> <p>Any disposition of her property by a woman after a treaty of marriage has commenced, without the approbation of the husband, which is voluntary, is fraudulent: (Roper on Husband and wife,, 163.)-</p>

<p>Case stated,</p> <p>A promise by a bankrupt who has been regularly discharged, to pay a debt to one of his old creditors, embraced by the bankruptcy and which is proved before the commissioners, “to pay when he is able,” cannot be sued for until all the assets of the bankrupt have been distributed, and then the proof should be clear, of his ability to pay any balance not paid through the bankruptcy.</p>

<p>Error to the Marion Circuit.</p> <p> Fjectment. Practice in Suits at Law. Attortiies’ Fees. </p> <p>Ejectment. Case 111.</p>

<p>Appeal prom the Franklin Circuit.-</p> <p>Pleading. Judgments. Limitations,</p> <p>Debt. Case 112.</p>

<p>Case stated and decision in the Circuit Court.</p> <p>A second action of ejectment is not barred except in the particular cases specified in J 3th. sec. of the act of 1825, (1 Digest, 586-7.)</p> <p>Hearsay that a party who has been absent from the place of his residence for more than seven years, had been seen by others, is not competent to prove that he was still living; those who had seen him within the time should be produced to testify.</p>

<p>The case stated,</p> <p>A party may set up as an equity for his defence, an agreement which the Chancellor would not specifically execute at his instance.</p> <p>Three sons-itr^om was th/ “h™mitfather-inlaw, who was a lunatic, divided! the slaves of the themselve^be! fore PIS ,d®aí’ division was to the committee during'the lüe°óf the lunatic, to surrender the property, in whtch event the division was to hewasnofcal/eá ^er "during "the life of thelunadeath the com-for°are-division. — -Held division was a sought,</p>

<p>Appeal prom the 'Meade Circuit,</p> <p> ■Ejectment. Notice to quit. Limitation. </p> <p>•Ejectment. £Case 115.</p>

<p>The case slated.'</p> <p>The question in? volved in the case.</p> <p>The statute of 1846, exempting: the property oí the husband from liability to the debts of the wile before marriage, is not in violation of the yonstituliori, it is notan impairing of the obligation of the contract.</p> <p>The obligation of ■the husband for the debts of the Jote marriage!>?s not absolute but death of the husband or the wife destroys the liablllf'5’'</p> <p>The protection notthebenefit'of the creditor, was the original ground of the husband.°f 1 8</p> <p>The slaves of a wife since the statute of 1846, will be liable to the satisfaction of the debts of the wife created before coverture.</p> <p>The passage of the statute of 1846, does not require _ any cnange in the modeof proceeding against husband and wife for the debts of the wife, other than that the judgment should show how it is to be levied.</p>

<p>Case stated.</p> <p>A witness may properly be permitted to correct his statements even after llie testimony in the ease is closed, but if permitted to make new statements of facts touching the merits of the ease calculate A to have effect before the jury, the opposite party should be permitted to give rebutting testimony — and the statements of the witness taken down at a former trial on a bill of exceptions, is proper forsuoh purpose.</p>

<p>Oase stated.</p> <p>If a demurrer to a declaration be general, and there be any good count, the demurrer should be overruled.</p> <p>Though a defect in property sold or exchanged,be visible to any ordinary observer, yet if the vendor misrepresent the character and cause of that defect. which deceives the vendee, the vendor is responsible for the injury.</p>

<p>Error to the Harrison Circuit.</p> <p> Vendor and Vendee. Specific Performance. </p> <p>Chancery, Case 119.</p>

<p>Error, to the Piice Circuit.</p> <p> Fraudulent 'Conveyance, Voluntary Conveyance, </p> <p>Ejectment. Case 120.</p>

<p>Error to the Wayne Circuit.</p> <p> Limitation. Distribution. Parties. </p> <p>Chancery. Case 121.</p>

<p>Case stated.</p> <p>The genera] rule is, that the Chancellor will not rescind a contract unless the parties can be placed in statu quo or nearly so,</p> <p>The party wh'ff» acquiesces for a> great length of time, in his purchase, after he-is apprised of all’ the facts upon which he asks a-, rescission, will net he relieved.-</p>

<p>Appeal from the Jefferson Circuit.</p> <p> Writs of Prohibition.- Taxation. Legislative Powers </p> <p>Replevin. Prohibition Case 123.</p>

<p>Appear from the Daviess Circuit..</p> <p>Administrators. Conveyances. Husband and Wife, Registry of deeds.</p> <p>Chancekv.. Case 124.</p>

<p>Appeal from tiie Jefferson Circuit.</p> <p> Wills, nuncupative. </p> <p>Will Case. Case 125.</p>

<p>©asestated;</p> <p>eign administrators could not sue in Ky., but mayhsueaandlhrecoverjudgments, though they cunnot have exeoution without giv,-llg bond and ^Go^ty^oort i^misterly the assets in the</p> <p>^ ^ foreign adm’r. ehLicery^^foi? ^ quireá to give such bond as the Chancellor, in the exercise of'a sound discretion, may require.</p>

<p>Appeal from the Louisville Chancery Court.</p> <p> Estoppal. Warranties. </p> <p>Chancery. Case 127.</p>

<p>Error to the Meade Circuit.</p> <p> Administrators. Trustees. </p> <p>Chancery. Case 128.</p>

<p>Gase staled.</p> <p>Proof.</p> <p>A slavceseaping from Kentucky to Canada and being brought back (o Ky., acquires no right to Ireedom "by having been in Canada. — Argu.</p> <p>Al stave wbo-Kai been in Ohio and returned to the ouslody of the master in Ky. and appeals to the laws of Ky. for freedom, must have that claim decided by the laws of Ky. Comity does not Teqnii'e one Slate to violate its own laws or policy to enforce the laws of another:. Rankin vs ’ Lydia, (2 Marsh. 476, cited and approved.).</p> <p>A slave in By*, sem or permitted to go to Ohio, for a temporary pi r, ose, where slave i y is not tolerated,, does not there! y acqniie a right to assert iieedom in l\y. G aliem vs Htiap’ijp5 B' Xmt”</p> <p>Bl,t a. removal tor iesu!en<e, lo> n free Siaie, freedom:"6^»»</p>

<p>case stated,</p> <p>A power given ecntor,^°to n sell land for thei pay-converts^the heic and entitles Pié proceeds for the payment of 185; ijb. 603.) equity will comtion *1 suchela power, because it is coupled -withatrust — and where executors •are authorized to glidedeLaTtrus" tees for that purpose — and when not authorized are^eemed^so (Sío™’sll0aÜ.E2 320-1.)</p> <p>ed'wlth^hípay^ed^ecutrix advanced patdSeTdebts!— shouldbeíubsíirlghfs of the creditors whose demands she had paid, and authorjfed own benefit* should1 íe^decreed to convey,</p> <p>Courts^of-equity tive execution of wíli'a.auusí.I>led</p>

<p>Appeal from the Washington Circuit,</p> <p> Dower. Use and Occupation. Limitation. Infants.. </p> <p>Assumfsit, Oase 131,</p>

<p>Case stated in the bill.</p> <p>. THe answer of the deíendants.</p> <p>Consent decree-in the Circuit» Court.</p> <p>The case referred io: $ Dana, 421.)</p> <p>The question now presen ted as to the right of the wife to prosecute a second writ of error to a decree, when herself and husband had been parties plaintiff, in his life time, for the same purpose.</p> <p>When husband and wife prosecute a writ of error and reverse a decree, no second writ of error lies in favor of-the wife after the death of the husband, to have a second reversal of the same decree.</p> <p>Where husband and wife are barred from prosecuting a joint writ of error, by limitation, and it is so adjudged •against them, can the wife, after the death of the husband, and within the time specified in the statute, prosecute such writ. Quere. Not decided.</p> <p>Lands conveyed to husband and wife during coverture, survive ¡to the wife upon the death of the husband, and descend to her heirs, and advancements made by husband and wile of such lands during .the coverture, do not stand upon the same footing as if made by the husband of his estale, and cannot affect the ¡rightof the child or ehildrenso advanced in the slaves of the father.</p> <p>tVhere tire estate of husband and ■wife are each to be distributed, and the same1 persons are to share in the distribution, there is no necessity for keeping the funds separate, and having separate accounts and distributions.</p>

<p>Case stated.</p> <p>The husband received the distributive share of ills wife in her lather’8 estate in 'Virginia, but instead oí a reiuuding bond, left in the possession of the adm’r. a part of the share so received, (slaves,) the husband died; the second husband received the slaves, .and afterwaids became adm’r. de bonis non> of his wile’s first husband —Held that the property was vested in the first husband •upon the division, and that in that character he could not asseit an adverse right to the heir or creditor of the first husband of his wife.</p>

<p>Error to the Estile Circuit.</p> <p> Administrators. Executors. Probate of Wills. </p> <p>Chancery. Case 134.</p>

<p>Appeal fkom the TodD Circuit,</p> <p>Bills of Exchange, Evidence-. Assumpsit. Debt.</p> <p>-Assumpsit. Case 135,</p>

<p>Appeal prom the Jepferson Circuit.</p> <p> Husband and Wife.. Limitation. </p> <p>Case. Case 136.</p>

<p>Error to tiie Mercer Circuit.</p> <p>Vendor and Vendee.™ Warranty. Qosts.</p> <p>©iianserv..</p> <p>€ase 137.</p>

<p>Appeal prom the Clarke Circuit.</p> <p> Wills. Devises. Slaves. </p> <p>Chancery. Case 138.</p>