Volume 49 — Kentucky Reports

<p>Gase stated.</p> <p>The question or decision.</p> <p>As respects personal property a will is to be construed as speaking at the death of the testator^ and a bequest of all the testator’s personal estate passes, as well slaves which lie possessed at his death as those which he owned at the publication of the will.</p> <p>A devise of all the testator’s lands is to be construed asembracing only-such lands as the testator owned at the publication of the will, unless a different intention is clearly expressed or necessarily implied.</p> <p>The chancellor may decree partition ol lands descended.</p>

<p>The case stated.</p> <p>Though the have been'suffi¡hefiVdíngofüie jury, yet if the instructions poi™SinP°issue he^set aside,</p>

<p>Error to the Morgan Circuit.</p> <p> Jurisdiction. Awards. </p>

<p>Case stated.</p> <p>When the- principal is discharged from liability on the ground of his infancy and judgment is Tendered against the surety, the failure to sue out execution for more than seven opératelo* Ris- †® judgment,</p>

<p>If anote be preconsWerationfor borroPwingSemo-”hatmefact’ 3be itnown to the lender of the money, or under stances as'justiRes the eonclalender of the ha°eeiinowSn that thenoteMtedin the matter with bling the payer uporfthe nme”by a'disoountgreotet than the legal tíme it has to run, the transaction should be regai ded as usurious — an at* tempt lo evade the statute.</p>

<p>Error to the Garrard Circuit.</p> <p> Limitation. Pleading at Law. </p>

<p>Error to the Kenton Circuit.</p> <p> Limitation. Malicious suit. Injunction bonds Merger. </p>

<p>Error to the Montgomey Circuit.</p> <p> Public Highways. Dedication. </p>

<p>Case stated.</p> <p>Under the statute of 1831 (1 Slat. Law 715) the owner of a ferry on the Ohio is notliable to the owner for a slave escaping by the ferry without his knowledge or consent. (8 Dana, 158.)</p> <p>This statute being highly penal should not in its construction be construed to extend beyond the clearly expressed intention of the Legislature,</p> <p>A ceclaration againsl the master for the acts of his servant should not charge the act to have been wilful, but negligently-permitted. (1 Bast. L06: 3 lb. 393: 2 Chitt. Plead. 710, note u.)</p>

<p>Error to the Marion Circuit.</p> <p> Widows. Exemption of property of deceased persons. </p>

<p>The case slated,</p> <p>The !e.vy of an execution upon personal pvoperwhether^m^fhé or mortgagee is lawful, and the declaration of hee .fiends th?o peuy does not render the lair mg unlawful and augagee6toSp?o°sej¿pjee3j1I¡aotíon‘of</p>

<p>Error to the Montgomery Circuit.</p> <p>Practice at law.</p>

<p>Error to the Bourbon Circuit.</p> <p> Equity jurisdiction. Consideration, failure of. </p>

<p>Error to the Mason Circuit.</p> <p> Mortgages. Conditional sales. </p>

<p>Error to the Fayette Circuit.</p> <p> Femes Covert. Separate estates of femes. </p>

<p>Case stated.</p> <p>The question iot decision,</p> <p>Vanarsdale vs elstin^'ufshed from this,</p> <p>A patent does not give to the patentee actual, but a legal seizen only. (2 Bibb, 412: 4 lb. 57.)</p> <p>Trespass cannot be maintained upon a legal seizen nor a wiit of right, nor ft rcible entry and detainer.</p> <p>It is-the duty ot the husband to strengthen the title of the wile to her lands by possession, if he fails to do so during the coverture he is not tenant by the cur.-</p> <p>tesy after the of the wife.</p> <p>The doctrine of n8W Yoik and uíPs?con¿raí0llIt</p>

<p>Appeals from the Woodford Circuit.</p> <p> Verdicts. Practice in Circuit Courts. </p>

<p>Error to the Trigg Circuit.</p> <p> Wills. Devises. Jurisdiction. Limitation. </p>

<p>Error to tiie Simpson Circuit.</p> <p> Administrators and Guardians. Sureties. Limitation. </p>

<p>Error to the Campeen Circuit]</p> <p> Bills of exchange; Negotiable notes. Ddmesiic bills of exchange. 'Protest; Evidence; </p>

<p>Sase stated,</p> <p>The reversal of a judgment or decree does not flffpnt a «alo smrl purchase made ring^he'time the" same was in full force and unreversed..</p> <p>A prayer^for an judgment or degrantin|nthereof does not have the ding execution ring the time alting6 the'" appeal</p>

<p>Error to the Christian Circuit.</p> <p> Wills. Devises. Emancipation. </p>

<p>The case stated-</p> <p>“if a disseizor sow the ground and sever the corn and disseizee re-enter, he shall have the corn because he entereth by a former title.”</p>

<p>Appeal from the Washington Circuit.</p> <p> Administrators and heirs. Abatement. </p>

<p>Error to the Logan Circuit.</p> <p> Principal and Surety. Trusts. Jurisdiction. </p>

<p>Case stated.</p> <p>One greatly indebted sold all his interest in his grandfather’s estate, worth $1100. for $475 & ten years boarding in future. Held that such contract ms fraudulent.</p>

<p>Cas® stated.</p> <p>Decree of the Circuit Court.</p> <p>The dissolution of a corporation does not have the effect to dissolve its contracts, and creditorsmayenforee their claims against any property of the corporalion which may not have passed to bona fide assignees.</p> <p>Theaapitalstoclc of the Lexington and Ohio Railroad Company held to be a trust fund in the hands of the Company, and liable to the payment of its debts.</p> <p>To subject such, fund it is necessary that a creditor show thatthe legal remedies had been used ineffectually»</p> <p>If new matter be introduced into the pleadings in Chancery, the statute of limitation may be relied upon, and time computed up to the time of the introduction of such newmatter.</p>

<p>Appeal from the Union Circuit»</p> <p>Sheriff sales of land, New trial.</p>

<p>The case stated,</p> <p>A declaration in assumpsit is not demurable commencing “A B complains of C D in a plea of trespass on the case” without adding the words "on promises,” though the latter is the modem practice. Trespass on the case in its general and mosteopnprehensive sense includes assumpsit as well as actions in form ex delicto. (l Chit. 161.)</p>

<p>Error to . the Louisville Chancery Court.</p> <p> Set-off in equity. </p>

<p>Case stated,</p> <p>A tenant cannot after entering upon the premises, defeat the landlord -o'f his rent by sale or mortgaging his property, but the lien of the landlord for one year’s rent wilt he valid: (Ac of 1843: Ses. Acts 54.)</p>

<p>Case stated.</p> <p>A negotiable note was given to one payable at a bank in a sister State secured by mortgage as well as all notes given byway of renew — held thatthe mortgage was valid and not in violation of any statute of Kentucky.</p>

<p>Appeal from the Louisville'Chancery Court.</p> <p> Wills. Emancipation.. </p>

<p>Appeal from the Simpson Circuit.</p> <p> Trusts. Limitation of estates. Purchase. </p>

<p>Appeal prom the Louisville Chancery Court.</p> <p> Equitable interests and dioses in action. Town and City officers. </p>

<p>Error to the Louisville Chancery Court.-</p> <p> Limitation. Partnership. </p>

<p>Case stated.</p> <p>Copies of writ-tea agreements of a private na* ture, not required, are only see- and^ina'dmissí bie,_ unless the original are lost or destroyed, in the possession of the opposite par-jurisdiction^ ’of the Court The fact that they are filed in a canse in the Circuit Court of the auihonze°eS the reading of cop-</p> <p>The statute of Kentucky of ing copies of writing sin \°hi eh be° bound6 ’and which may be filed in the Court in one district, and suit brought upon it in another, to be filed by the plaintiff, and admitted as evidence on the trial provided it be attested by the Clerk where it is filed, does not apply to the facts of this case where the original, the copy of which is offered, is not the foundation of this action.</p>

<p>Error to the Bullitt Circuit.</p> <p> Fraudulent Mortgages. Usury. Sales in gross. . </p>

<p>Case stated.</p> <p>tt is not necessary for an officer in making a levy upon bricks in a kiln, to separate the bricks levied on from the remainder in the kiln, butmay, at his peril, leave them in the kiln —nor to touch the brick — nor to minutely describe them.</p> <p>The sale of a certain number of brides in a kiln implies the right of the purchase upon opening the kiln to take the requisite number of brick tit for use, indiscriminately in the usual way of taking bricks irom a kiln, and the sale is valid.</p>

<p>Case stated.</p> <p>Upon a submission to two and their umpire an award made by the three jointly is valid (3 Burr. 1474: 1 Blade. Rep. 463.)</p> <p>There is no well founded distinction between a submission to two and their umpire, and a submission to two and their umpire in casa of disagreement. (1 Bac. 211 let. D.) (Hunter vs Bennison, Hard. 43.)</p>

<p>Error to the Franklin Circuit.</p> <p> Misdemeanors. Jurors. Challenges. Prosecutors. </p>

<p>Error to the Christian Circuit.</p> <p> Fraudulent conveyances. </p>

<p>Case stated and points made for decision.</p> <p>The testimony tomakeTwfli!7</p> <p>The Chancellor' has power and will control a trustee in the exercise of his-power to effectuate the purpo" ses of the trust.</p> <p>A will to pass land and slaves must be attested by two witnesses. argu.</p> <p>A witness to a will in which it was prdvided. that the administrator of the father of the testatrix should be exonerated from. any loss as such, not however exoneratlng him from any legal liability; B eld that the surety of the administrator was not by such provision of the will rendered an incompetent™^ ness to prove the will.</p> <p>A remote contingent interest in the provisions of a will, will not disqualify an. attesting witness from proving it; the evidence of disqualification of a witness rests on the objector.</p>

<p>A paper purporting to be a bill of exceptions certified by the clerk but not noticed upon the record, cannot be noticed by,the Court of Appeals as part of the record.</p> <p>An order from one person to another to furnish goods of a certain value, containing an express promise to pay for them, is a covenant to pay that sum if the goods be furnished.</p> <p>A third person ■who pays money or property at the request of one who ' lost it at unlawful gaming, is not estopped to recover the amount so paid from the person making the request, though he may know that it was so lost.</p> <p>A deed voidable upon delivery may be subsequently confirmed.</p>

<p>Case stated.</p> <p>Wiiere there is uncertainjr A. grajt aii,4 an election tífet election iaXútR Sptf* grantee: (Vin. ab. 49.) And that is certain which map he rendered certain : U SheVi Touch. 250.)</p> <p>A patty filing exceptions to depositions should ask a decision upon the exceptions: if this be not done they will be taken by the C. A. , to have been waived.</p>

<p>Case stated*</p> <p>Poto* for deoi''-</p> <p>When administrators pay debts in full to a portion of the creditors, and the estate proves deficient, they cannot recover in equity of sucbt creditors any surplus so paid over what would have been their pro rata share of the estate, tho’ there was no fraud, but a, want of the proper-vigilance in ascertaining the am’t. of the estate.</p>

<p>ílie case stated.</p> <p>Judgment of the Circuit Court.</p> <p>•A Sheriff suedia trespass must show that he is Sheriff, if he would justify.</p> <p>Can a Sheriff, by •written authority, constitute a special deputy to levy a fi. fa. Qnere. If so, he can give him no greater power than himself. He cannot break looks of outer doors of a dwelling to levy a fie- ' rifadas;</p>

<p>Appeal erom the Caldwell Circuit.</p> <p> Bankrupts. Pleading. Issues immaterial. </p>

<p>Case stated,</p> <p>A mortgagee who consents to a sale ot mortgaged property, or who stands by and sees it levied upon without asserting his claim will be precluded from asserting title against a purchaser thereof.</p>

<p>Error to the Union Circuit.</p> <p> Pleading. Variance. Joint and several obligations. </p>

<p>Error to the Mercer Circuit.</p> <p> Limitation. Statute’s construction. Conveyances. </p>

<p>Case stated,</p> <p>The statute of 1810 (2 Slat. Law 447) deeds may be acknowledged or proved before any County Court Clerk, and upon being duly certified may be recorded in any county ■where the land lies, and the Clerk receiving the acknowledgment or proof may receive the acknowledgment ■of_ the wife or privy examination, which being duly certified will pass her title.</p> <p>By a fair construction of the statute of 1810, a Clerk of any County Court may take the relinquishment of a feme covert on. privy examination, though he shall not take the acknowledgment or proof of its execution by the husband.</p> <p>ífeeás are presumed to have been delivered at their date; but a delivery at a subsequent day may he proved. A valid delivery must precede an acknowledgment, (6 Litt. 465: 7 J. J. M. 120) & acknowledgment is prima facie evidence of delivery on the day of the date — tho’ other evidence may be adduced to show the actual time of delivery.</p> <p>The statute requires deeds to be recorded -within a prescribed lime after delivery, not after date.</p> <p>The principles peais°Uin °fxevPiments^fVe Cuverraíin?14 ^o' tions for new taiorous^Tnd ^e-grounds to *be oute tollyjustffy a reversal than those whichjpwhere anewtngranted.</p> <p>A deed once passed upon by the Conrt of Appeals, and held to be valid, cannot be again questioned, tho’ the case be again before the Court of Appeals — argu.</p>

<p>The ease stated.</p> <p>As between equities priority gives preference. A prior equity with a legal advantage will not be disturbed, in favor of a junior equity, though the legal right was acquired in aid of the prior equity after a knowledge of the junior equity of the adverse party.</p> <p>Information which should put a party upon inquiry is sufficient notice.</p>

<p>C^se ¡sfatsc?.</p> <p>Decree of the in«. ferior Court.</p> <p>The term ‘lawatl respects tanfufheirs^tho</p> <p>Illegitimate children may inherit from the mother, but are not such ‘lawful is ue’ of the mother as will take a remainder in an estate given to her for life, then tojher ‘lawful issue.’</p> <p>h devise to trustees for the use of A, a feme covert, for life, * then to her lawful issue, gives to a no such lefif case*3of Ter iuifgufmlte child,</p>

<p>Tbe esse stated,</p> <p>■fartiee cjf fe jisdiction incato* írespas»Pira If lm. ¥&b™al Law, 378.) '</p> <p>The statute of 1840, giving jurisdiction in cases of trespass and trespass on the case to Justices of the Peace, authorizes ail appeal to the Circuit Court only.</p> <p>•®d-g^bJep(J because impropcounty'^Court? been toSe hCiremt Court, no be adjudged afanf onitsPPis^iSg“stgbutonly</p> <p>The iCo?rt of Appeals has no jurisdiction to of‘^“county Court affirming or reversing a judgment of a Justice of th® Peace, But it may revise a judgment dismissing ¡such case and improperly adjudging costs.</p>

<p>Error to the Adair Circuit.</p> <p> Mortgages. Sureties. </p>

<p>Case stated.</p> <p>A vendor witftout title after-wards acquiring. title it enures to the benefit of Ms vendee — but if the heir of such vendor acquire title he cannot be compelled to surrender it or te answer in damages for failing to convey unless he received assets from the ancestor.</p> <p>The heir of one who has conveyed land is estopped to deny that the ancestor had title at the time he conveyed.</p> <p>A bond for conveyance, under the circumstances of the case presumed to be satisfied, after the lapse of 40 years.</p> <p>Onehavlng taken possession under a particular title cannot, whilst so in possession, assert an adversary title.</p>

<p>Case staled.</p> <p>Decree of the Chancellor.</p> <p>One not indebted may settle property on his wife, if it be not done with the intent of going in debt.</p>

<p>The deciee of the Circuit Court.</p> <p>Where there has been a conveyance of land, * fraud is alleged and denied, and no proof of the alleged fraud,the sale cannot be set aside.</p> <p>A rescisión of a contract for land which has been conveyed to the ancestor, cannot be made at the instance of the executor alone; the heirs should unite.</p> <p>It is not error to decree a sale of an undivided interest, or part thereof in land held by defendant to pay a debt or discharge a lien without dividing the land.</p> <p>The law does not require land sold under decrees in chancery to satisfy vendor’s lien, to be valued as land sold under execution. (1 Dana, 18S.)</p> <p>WKere the Comí est of the defen* ^ “actofíand' to be Bototo safe-</p> <p>isfy the purchase money without stating in the decree the extent of that interest, the decree tho’ informal, will not be erroneous when there has been no disagreement in the statement of- the parties in the pleadings in the cause as to the extent of that interest.</p> <p>Tho’ the chancellor having acquired jurisdiction of a subject may, in order to prevent multiplicity of actions, do full justice between the parties, he is not warranted in deciding other matters between the parties, whether legal or equitable, having no connection with the subject giving the jurisdiction.</p> <p>By the commoti law the only remed 3 against one joint obligor •who had died, was in equity; this was remedied by the statute of 1796. (1 Stat. Law, 318.)</p> <p>Where by the common law-courts of equity had jurisdiction, and the same jurisdiction was conferred upon courts of law, the jurisdiction of the courts of equity is not ousted but is concurrent. (1 Sto?y Eq. 80, 96.)</p> <p>In a suit in chancery against the representatives of a deceased obligor to have satisfaction of a legal demand, the surviving obligor is a necessary party, and service of process against such survivor in the county where the suit is bro’t, gives the court jurisdiction as to the heirs of the deceased obligor.</p> <p>The husbands of heiis, who ate sued, dying pending a suit in chancery to subject lands deseended to their wives, no revivor is necessary against the personal representatives unless they have received of the estate of the decedent, and it is designed to hold them responsible.</p> <p>It is no objection' to a decree against heirs to be levied of estate descended— that there is no allegation that estate had descended.</p>

<p>Where property greatly eiVe<more valued payment of _ a debt in •wluch there is ■usury, in consiatease *of°the ube1 m ^reclamation of the usu-</p> <p>Damages may be awarded in some eases, where the collection of a note in suit, not a judgment is njoined.</p>

<p>That a petit juror is of the same name of one of the grand jurors, is not an exception which can be available in the Court of Appeals when not made in the Circuit Court.</p> <p>If evidence be admitted of two assaults before' thejuiy, without objection made, it will be nfo' cause for reversal in the Court of Appeals.</p> <p>In prosecutions involving the character of the defendant lie may give evidence of general good character. —A prosecution for an assault does not so involve character as to authorize proof on the part of the defendant of general good character. (3 StarMe on Mv, 365,</p>

<p>Case stated.</p> <p>Where there is' no formal lease, but only an express promise to pay a stipulated price for the use of land, assumpsit is maintainable.</p> <p>Where the term has been enjoyed and the rent payable in money, it may be recovered on the common count for use and occupation; tho’ there was a special contract b’tween the parties. "Where one of live heirs enjoyed land under a contract to pay rent to the coheirs, they may maintain a joint action oí assumpsit for four-fifths of the entire value of the rent,</p> <p>Interest may be recovered upon a sum certain due for rent as •well as upon any other eonsidera-</p>

<p>The case stated,</p> <p>An executor paid posed legatee ivhieh was subte^b^a settleadmini^rato/he should be credit-sod píd^where legateeSwasSed creditor of the estate to that a* mount.</p> <p>holds e<!^°dsW of his supposed tesíor°i n teres tupon handsto the aámmistTaior upon the will under whichhehadcol* aUeadstfromnüié fb?eanf account1 and no refunding ry. Suchexecupaíd fc°his ser* they3 were"arservlceable.</p> <p>An executor ot such an executor should not be paid for his services where the will was vacated and the first executor died during the pendency of the suit for vacation — tho’ he may charge the estate of his testator.</p>

<p>Appeal prom the Owsley Circuit.</p> <p> Pleading. Rent. Reversion. </p>

<p>Error, to the Estile Circuit.</p> <p> Agents. Collateral security. </p>

<p>Error to the Montgomery Circuit.</p> <p> Husband and wife. Settlements. Bankruptcies. </p>

<p>Error, to tub Garrard Circuit.</p> <p> Profert. Administrator’s jurisdiction. Instalments. </p>

<p>Case stated.</p> <p>In a suit against one of several obligors in a guardian’s bond, it is no ground of defence that another of the obligors is the next friend of the infant for whose benefit the suit is bro’t.</p>

<p>Case slated,.</p> <p>Decree of the Circuit Court & hill of review ¡and. second in-]¿¡l”gc^°gdhad and</p> <p>Tho’ the protif adduced on a bill of review may be such as to authorize the relief prayed for, yet it there are not good grounds shown for filing the bill of review no relief can be granted. The former decree is-a bar.</p> <p>‘fho discovery during the terra that a part of the exhibits hadboen lost out of the papers, and that the decree had therefore beea against the party who had filed them, should have been made known by petition for a rehearing, or a request to the Court to suspend the decree to give time to file petition for rehearing. It was no ground for bill of review after the adjournment of Court that the party' himself was ignorant of his rights and duties in the premises.</p> <p>Where an answer has been lodged with the Clerk in proper time and known to complainant, though not formally noted on the record as filed, but treated by the Court and parties as part of the record, this Court will so treat it and give it the same weight as if regularly filed of record.</p> <p>'Where a horse was purchased, for a foreign market to which, he was taken and. sold, no return or offer to return was necessary where the unsoundness was ■discovered in a distant State.</p> <p>Where a second injunction is obtained injoining a judgment at law upon filing a bill of review which was not warranted by the rules of chancery practice, damages are due and should be awarded to the defendant.</p>

<p>Error to the Kenton Circuit.^</p> <p> Ferries. Slaves. New trial. </p>

<p>Case stated.</p> <p>The legal effect of an order dismissing a suit agreed is to bar any other suit between the same parties on the original cause of action thus agreed by them and merged in the judgment. (2 Sana 395.) The parties dismissed their suit agreed and agreed to submit the controversy to arbitrators— the arbitrators met but could make no award. Held that the original cause of action was merged and no suit could be maintained upon it.</p>

<p>Error to the Garrard Circuit.</p> <p> Witness. Evidence. Infants. </p>

<p>The case stated,</p> <p>'Where two .chancery attachments are obtained the complainant in the bill for the second attachment is a competent witness for complainant in the .first.</p> <p>¡Copies of notes in the hands of a ■third person who .can be required to produce them are not competent evidence.</p> <p>The statement of a vendor after he has passed his. title are not evidence against vendee.</p> <p>Though a mortgagee who stands by at a sale of the mortgaged property and does not assert it and receivelheseproceeds of the sale will be estopped thereafter to assert it, (4 B. Monroe, 531) yet it is not so where the lien was acquired on the property by attachment iri chancery. (3 B~ Monroe 133; 580.)</p> <p>A purchaser of property at a sale under execution, which is under attachment to satisfy the same debt, where the decree subjects it to the attachment debt, Should be re-imbursed out of the attached property to the extent of the payment made upon the execution.</p> <p>So if a purchaser of attached property from the defendant even after suit, pay the price in discharge ofexecutions which are existing liens upon the attached property at the filing of the bill, and the property be decreed ip be sold, the purchasershould be indemnified by a repayment of his money before the attaching creditor is paid.</p> <p>Where there are several purchasers of property of a mortgagor, each is bound to contribute proportionally to the satisfaction of the mortgage» (3 B. Monroe, 50; 8 lb. 314) So of purchasers of property on which there exists a lien by attachment in chancery. The value of the property at the date of the decree for sale is the proper period for ascertaining the liabilities.</p> <p>The Chancellor should require land decreed to be sold to be definitely described.</p>

<p>Error to the Mercer Circuit.</p> <p> Sureties. Fraud. Promissory Notes. </p>

<p>Hhe case stated.</p> <p>The testator directed a slave to be hired out by his widow until his youngest child arrived at the age of 21, and then to be p^ce ¡^divided (,utais pointed jno one duty. Held that lheTxecutor.P°7 Monroe, ■ 304.)</p> <p>But a court of equity can alone give the executor ihe possession of the slave, it it be denied to him — the widow being a trustee.</p> <p>If a jilea be insufficient a demurrer to the replication sho’d be overruled’ on account of the insufficiency of the plea.</p> <p>By the practice in Kentucky, a party whose demurrer is overruled may withdraw it and plead any matter ■which he might have plead at first. So he should have the same privilege upon the return of a case from this Court, and the like practice should govern in respect io other subsequent pleadings.</p>

<p>The case stated;</p> <p>Thé decree 6f the Gircuit Court</p> <p>Notes given for the purchase -of' laud remain a lien upon the land though they risay be renewed.</p> <p>But where the given for land andentahes the assfgneVto^im by athirdperson, it is no renewal and the lien is debtT^imif "the signee5" against assignor is the only remedy in case of the inobligor^ °£ 1'16</p> <p>Where a note due for land sold has been united wit^offie^deah vendor amfveni dee, so as to ten-ascertain the for the land, and Heldn°that°nthe ciaim of • lien should he rejected. ..</p>

<p>Case stated.</p> <p>The words “or order” in a promissory note are not an essential part of such note and not important to its validity. It is assignable with, or without such words.</p> <p>A seal, since the statute of 1812, (1 Stat. Law, 343) is not an essential part of a note, and therefore it is not a fatal defect in a pet. & sum. to omit placing the seal to the copy in. the pet., though it be to the note —setting out the note in substance is sufficient.</p>

<p>Case stated in the bill and exhibits.</p> <p>Answer of ex-.-seniors andtrus- ■ ' tees.</p> <p>A tenant for life merely, nothing appearing to curtail his right, is entitled to the whole profits of the estate — that the tenant for life, while a. minor. is restricted in the extent of the use of the profits of the estate, does not curtail the right thereto on arriving at full age.</p> <p>Though a life estate be vested in trustees, the cestui que trust is in equity the owner, and entitled to the use of such property as will yield profit in its use, unless otherwise directed: {8 Sana, 33.)</p> <p>Where the use pr profits of money and stocks are devised in trust to be under the control of trustees, they have the right to the possession thereof; they paying the profits to the cestui gtte trust.</p>

<p>The ease stated,</p> <p>Where several grant in one deed the separate interest which each has in the estate, the covenant shall be considered to extend to the interest granted: (1 Chitty 47) and if separately, warrant to the extent of the interest granted, suit for the breach of the covenant shall be several.</p> <p>Where the damages laid in a warrant for breach of covenant is less than £5, Justices of the Peace have jurisdiction.</p> <p>Though no appeal or writ of error lies to this Court from a judgment ol the County Court affirming or reversing the. judgment of a Justice under £5: (1 Stat. Law, 133) yet this Court will reverse where the Gounty Court having ny law jurisdiction improperly refused to exercise it: (10 B. Monroe, 193.)</p>

<p>Error to the Russell Circuit.</p> <p> Execution sale of land. Sheriff and sheriff’s deed. </p>

<p>Error to the Fleming Circuit.</p> <p> Bills of Review. Waiver of Equity. Assignee and Assignor. </p>

<p>Error to the Mason Circuit.</p> <p> Parties in Chancery. Bankruptcy. </p>

<p>Error to the Lincoln County Court,</p> <p>Guardians. 'Attorneys1 fees» Costs. Practice.</p>

<p>Error to the Lincoln Circuit.</p> <p> Trespass. Justification under Process. Instructions, </p>

<p>Error to the Bracken Circuit.</p> <p> Limitations. Heirs. </p>

<p>Case stated»</p> <p>Is a deputy sheriff who receives money on execution liable to plaintiff in assumpsit for the same? — quere.</p> <p>Where money is paid by one not in obedience to any request, nor in discharge of any legal liability to do so, no action can be maintained against the person fox whose benefit it has been paid.</p>

<p>Til© case sistled.</p> <p>Though the verdict of the jury-might have been the same if improper testimony had not have been given, yet if the improper or illegal testimony was improperly admitted, and may have influenced the jury, the verdict will be set aside.</p> <p>The admissions after the dissolui0rship,thisPnot competent to charge the other fflarsñ.' 189; (6 S. 'Momo^thi)</p>

<p>Case stated.</p> <p>as a general contract as a jeme sole, nor as such sue or be notdáta?aw bfnd ^he1! "separate ¡property. And a Court of eouit/ will not ordinaSdietion ^ Ip.' pro¿ertySinaithe aj;rustee of her engage-f^Éísbanfaná j23'Though she may charge tateatonefwhen fention'to do so! suvm'</p> <p>, if a married woman live -sepahuseband°mit his fed «laUeríealings with those who credit her .is upon the cred-property• ^jv ly 2 creditors may subject it 306.></p> <p>The employment feme covert living herahusband,r°to againsta^charge of murder: held lo be sucri a meritorious claim as would authorize the deemers pay.ment out of her</p> <p>Where partners in the practice of law are engaged to perform service, and otje of them only attends to the business, and it be skilfully and successfuly conducted, there is no ground for any abatement of the fee.</p>

<p>The ease stated.'</p> <p>An insolvent debtor conveyed his property to trustees for the benefit of certain creditors, a third person acquired the equity of redemption in the property, a part of the real property remained after payment of debtsupon which additional buildings had been made by consent of the holder of the equity. A creditor not provided for, had a judgment and a return of^ ?mZfe his bill to have £he™ent and in?f l£e debtor in tho property — Heidi that lie ivas cntitled to relief to valiie^nhe1 im°piovements, and-that value,</p>

<p>Case stated.</p> <p>It is error in the’ Court to instruct the jury upon the evidence to findioc one party, though there is evidence eondustate t0o?rOVfact thorizVsuohfinding, unless the instruction be based upon the tfcuia°f‘the'?act ■rendersuchiind■ing proper. ■</p> <p>Can an exeeulor ■who is nominated by the will, but who has not qualified, but intending to do so at the time, perform an act as such which will bind the executor who does qualify?— quere.</p> <p>If an executor \vlio has not qualified, does an act -which appertains to the duty of the executor who _ has qualified, it is not binding from the mere fact of his being nominated by the will, without subsequent qualification.</p>

<p>Error to the Woodford Circuit.</p> <p> Trusts. Decrees. </p>

<p>Appeal from the Fayette Circuit.</p> <p> Attachment in Chancery. Abatement. </p>

<p>Judgment of the General Court.</p> <p>Wilhite vs Roberts: (4 Dana -172) cited and approved.</p> <p>A contract to* pay counsel a. fee equal to one-*fourth of the value of the land, which may he recoverediess by the costs of the-suit, and to wait until the land is. sold, isnotchamperlous within the provisions of the act of 1824.</p>

<p>The ease stated,</p> <p>In the construction of wills the intention of the testator must be carried out unless it be against law; and if there be repugnant clauses, the latter must prevail. Words, or even clauses, may be transposed when such transposition is necessary to make sense of the provisions of the will. Every clause shall be so construed as to give effect thereto, if piacli- ' cable, without ■contradiction.</p> <p>A case o£ the transposition of a clause to give effect to the clearly expressed intention to maintain equality in the division of his estate.</p>

<p>Error to the Henry Circuit.</p> <p> Principal and Agent. Parol Contracts. </p>

<p>Error to the Jefferson Circuit,</p> <p> jDebt. Injunction Bonds. Executors. Pleadings. </p>

<p>The question case.</p> <p>The decision of Courts of Chan-testator may, beo7eheivsdat1Slaw on one side, and tributees on the the order oFimthe1 debts'and’iegacies fall ex-theSreaf estate) oneratdon^of the personalty.</p> <p>Inmodem cases theSintention-to «xonerate the personalty appear so plainly upon the face of the whole will, as to convince the mind of the Judge, that intentiou should be carried into effect: (2 Williams on Executors, 1047-54; Earn on Assets, chap. 3, sec. 5, chap. 6, sec. 2, 8 vol. Law Lib.)</p> <p>Clauses of the will cited.</p> <p>The fact that no disposition is made of the personalty, is a strong circumstance against the inference that it was the intention of the testator to exonerate it, though it may not be conclusive.</p> <p>The- withdrawal to a great extent of the real estate from the payment of debts and legacies, by the will, and its appropriation to other purposes, is also a circumstance against the conclusion that the intention was to charge the real, and exonerate the personal estate.</p> <p>The amount of! indebtedness of the testator, ani other iaets appearing in the-case, also considered in arriving at the intention of the testator, on the question of the-exoneration of! the personalty.</p>

<p>Error, to the Garrard Circuit.</p> <p> Possession. Agent and Principal. Tenants at will: </p>

<p>The case stated.</p> <p>On an injunction bondexecuted to several jointly as obligors, debt may be maintained in the name of all for an injury to either by failing to perform the condition: (1 Chit. 9-10.)</p> <p>Where the condition of the injunction bond is to “prosecute the injunction with effect,” and ground relied on for the injunction is removed, after the filing of the hill and obtaining the injunction, and the chancellor decide that on that account the injunction is dissolved, it is “a prosecution ot the injunction with effect,” & there is no liability on the injunction bond.</p>

<p>The case stated.</p> <p>A remote assignee has no right of action against a previous assignor, though he may sue in the name of his assignor, between whom and his assignor there may be a right of action.</p> <p>Thé assignment of one of two assignees to the other does not authorize a suit at law in his name.</p> <p>First count of declaration adjudged defective.</p> <p>Tyler sold property to Me., took notes reserving a lien for the consideration--assigned the note to V & M. V assigned to M. T took a mortgage uppn the property with all the other property of Me. M foreclosed this mortgage St then brought assump-1 sit against T, not having prosecuted any suit against Me., alleging that T, in consideration of his liability a_s assignor, promised to pay as soon as the mortgage property was disposed of. Held that there being, as appears, a moral obligation on the part of T, it wasnotneces'saryto avermore than an express promise to pay.</p> <p>Ifaparty make a promise in consideration of a moral obligation ■which he may waive, he is hound to perform: (Kent, 5 ed. 113; Chit, on Con. 47, note 3; Bank Iiy. v Ray, 3 B. Mon. 510,) not inconsistent with Ralston v Bullett, 3 Bibb, 102.</p>

<p>Appear from the Hickman Circuit.</p> <p> Mortgages. Vendors' Bien. Equities. Purchasers. </p>

<p>case stated,</p> <p>The question pre» semed by the record.</p> <p>The act establishing the town of Covington was decided constitutional: (Kennedy’s heirs vs Trustees of Covington, 8 Dana, 56-6.)</p> <p>The act establishing the town of Covington vesting in them 150 acres of land, and authorizing them to convey the lots laid off, authorized them to sell parts tíf the 150 acres notlaid off and which was not intended for public purposes, and such sale passed an equity at least to the purchaser.</p> <p>A writing showing the true position of a line as agreed upon between those who were the proprietors at its •date, may properly be received as evidence to •show the proper line, and is bin'ding upon all subsequent owu'ers of the land!</p> <p>fered'hy^defeiid«ntin ejectment petent to show *e<i ¿ypiáintíffió sl“wmleinhim.</p>

<p>Error to the Jefferson Circuit.</p> <p> Conditions precedent and subsequent. </p>

<p>■Case stated.</p> <p>An administrator paying bond debts or simple contract debts of his intestate, when judgment debts existed in the county the intestate had jived smd died, s' : ’’ r la ,*c r./t \ - i íiti ¡ i f; ■ ■ uio personally liable for a mal*admin* istraüon: (Hutch craft*s Ad*r.f vs Ti/fordf 5 Dana 353.)</p> <p>Heirs, against whom a judgment has been recovered in conjunction with the administrator, & who pay the judgment, may in equity be substituted to the right which the judgment creditor had, to file his bill against the administra mr to have a discovery of assets, and be reimbursed in case there has been a mal-administration of assets.</p> <p>—Butiwhere the administrator in such case claimed a bond debt and a debt paid a s security for his intestate, & had assets sufficient to pay them at the filing of the bill of the heirs: Held th.it though the administration was granted before the act of 1839, that the administrator as tci such debts was entitled lo a pro rata share of the fund so in his hands— he paying interest to the heirs on their part.</p>

<p>Error to the Barren Circuit.</p> <p> Femes covert. Dower. Conveyances. </p>

<p>Error, to the Hopkins Circuit.</p> <p>Husband and wife. Slaves. ■ Law, Equity.</p>

<p>A trustee who acts diligently is not in general responsible where he has acted in-good faith. Tho’ if he have no discretion given he is responsiblewhereheviolatesthe duty imposed, if loss ensue.</p> <p>A trustee to whom a note is assigned in trust, failing to sue to the first term after the note fell due, whereby the assignor was released, held to be responsible to cestui que trust, the debt being lost.</p> <p>That the note was given to the assignor as executor, where it was assigned to pay a debt for which the assignor was personally liable, can malte no difference in his liability as assign- or.</p> <p>The place of making the contract, and of performance gives the law of the contract: (Story's conflict of Imw, 262.)</p> <p>A trustee who releases a surety or negligently fails to availhimself of all 'the means of saving a debt in his hands becomes personally responsible in case of its loss to the cestui que trust.</p>

<p>Error to the Meade Circuit.</p> <p> Slander. Words. </p>

<p>Error to the Logan County Court.</p> <p> Division of Lands. Heirs. </p>

<p>Appeal prom the Caldwell Circuit.</p> <p> Trespass. </p>

<p>Tlie case stated, and question presented for deoiS10n’</p> <p>The statute of 1820, (2 Slat. Law, 1528) authorized the recording of wills which had been proved and admitted to record in other States, where the testator had last resided, in the Court of Appeals of Kentucky, and made copies of such wills evidence with the same effect as if proved and recorded in this State. The act of 1842 allowed the recording of wills so proved, and to be recorded in the County Court Clerk's offices with like effect.</p> <p>The act of 1797 referred to, and the adjudication, on that act ret ferred to: (2 J. J. Marsh. 511; 2 Marsh. 467; Lilt, sel. cases, 503.)</p> <p>Proof by one subscribing witness oí the due execution of the ■will, and that the other subscribing witness was present and duly attested it is sufficient.</p> <p>The States respectively have the power to prescribe the requisites necessary to pass title to the real estate situated therein: (2 Con. Hep. in notes, page 438.)</p> <p>A will admitted to record in Tennessee upon the oath of one subscribing witness, & authentic ation which purports to certify all that the witness stated in proof of the will, who stated nothing in respect to the presence or attest! - tion of any other subscribing witness, though recorded in Keniicky: Held not to be so proved as to pass title to real estate in Kentucky.</p>

<p>Decree of the Chancellor.</p> <p>Where a contract of partnership is superinduced by the fraud of one of the parties, and a failure to comply with the terms thereof, the Chancellor may rescind the contract of partnership.</p> <p>Where a partnership .contract is rescinded for fraud in the contract, the Chancellor will do equity to the party who has been seduced into the contract, and secure him against loss, provided creditors of the firm be not prejudiced thereby.</p>

<p>Case stated.</p> <p>The question presented for decision.</p> <p>Though many choses in action be not assignable there are many transfers of chases of a particular description, arising ex contractu, which courts of law will notice and protect.</p> <p>A declaration in trespass in the name of H “who sues for the use and benefit of H,” is demurred to, the demurrer presents no such question of the illegality of the assignment, as authorizes the Court to sustain the demurrer to the declaration, and defeat the action. The words “for the benefit of H,” are mere surplusage.</p> <p>B sues in trespass for the benefit of H. The fact, if pleaded, that by contract between H & B, H is to have the proceeds of the suit, does not necessarily defeat the right of recovery, tho’ such contract might not be enforeible.</p>

<p>Error, to the Clay Circuit.</p> <p> Parties. Joint contracts by parol. </p>

<p>Error, to the Jeeeerson Circuit.</p> <p> Slaves. Fugitive Slaves. Rewards. Constitutional law. </p>

<p>Error to the McCracken Circuit.</p> <p>Bills of Review. Parties. Pendente lite Purchasers,</p>

<p>The ca»e stated.</p> <p>- A discharged' bankrupt is no longer hable for judgment at law, have been^ro'ved^te1" nor^is3 ^ny property or right m the hands of a fraudulent Iqtatyf liable in</p> <p>That a bankrupt, before his discharge had made a fraudulentconveyance, willnot authorize the Chancellor to set aside the discharge, or to disregard it. Its validity can only be tested by an issue upon specific grounds stated, of unfairness or fraud in its obtention.</p> <p>An assignor in ¡bankruptcy, tho’ •a party to a suit in chancery between the creditors and the 'bunkrupt is not ."barred of his right as assignor where he does mot assert it, and it is not adjudicated upon.</p> <p>A bill to set aside a decree for frauds, and is not properly a bill of review, & no writ of error ties to the opinion of the Court refusing leave to -file it as such.</p>

Appeal, from the Livingston Circuit. Vendor and Vendee. Recission. Henry Wright, in 1837, purchased by executory •contract of William J. Todd a tract of I366|- acres of land lying in Hickman cour yyon the Mississippi river, at the price of'$7,333., paj'able $5;OQ0 on the ■ 1st of April, 1838, and the' balance in equal annual instalments, the last falling due 1st of April, 1842. The three first notes falling due were assigned to one Johnson Swayne, and were nearly paid off.

<p>Writs or error to the Union Circuit.</p> <p> Constables. Sureties. </p>

<p>Parties & privies1 only are bound by decrees.</p> <p>A collateral covenant that a vendee shall enjoy a particular easement not part of the conveyance, passes no right to a subsequent vendee. But a deed in which the right of ingress and regress is secured to the grantee, passes such right to every subsequent vendee.</p> <p>A mortgage was made by Bell to the Bank of the U. S. after agrant of an easement by mortgagor to Bakewell. The .Bank of U. S. ■foreclosed their mortgage &sued: ■the sale does not .extinguish the right to.the easement, the grantee of the.easement not being a party to the .deicree of foreclo•sure.</p> <p>The .extent and nature of the easement determined from the facts of the ease and the grant.</p>

<p>The case staled.</p> <p>íhe grounds of complainants for relief-John Jackson’s will.-</p> <p>íhe provisions of the act of 23d February, 18-16, relied upon.</p> <p>To render the &ePeoa’he wife’ l!able for debts’ &o. The debt must “be eontedCtejointly°refñ wife'”</p> <p>A vested remainder in slaves, which vested prior to the act of 23d February, 1846, entitled “an act further to protect the rights of married women’1 but which did not come to the possession of the feme until after that date, when the life estate determined; held to be liable for the debts of the husband of the tenant in remainder.</p> <p>Bowling’s Rep’s. vs Dobynis Ad’ r. cited and approved:</p> <p>A vested remainder gives an-immediate fixed right of filture: enjoyment--an. estate in presentí: (1 Cruise 181.)</p> <p>A devise over ■upon a contin gency does not prevent the legacy from vesting ■in the meantime, provided the words be in oth■er respects sufficient to pass a present interest: \Roper on Legacies, 403.)</p> <p>A vested remainder in slaves accruing to a feme covert, vests in the husband, and if the particular estate determine in his lifetime, he may sue if he survive the wife, without administering on her estate: (6 ¿{if. 335; 7 Mon. 216.)</p>

<p>Appeals from the Campbell Circuit.</p> <p> Wills. Parties. Trustees. Remainders. Heirs. </p>

<p>The case stated.</p> <p>A note was made’ payable to one of a firm for partnership property of the firm, and’ passed to a creditor of the firm, for whose benefit' the suit was brought. Set-off plead of notes given by the payee of the nole for his individual debt, and replication, setting out the fact that the note was by fraud or mistake made payable to-one of the firm when it was given for partnership properly, & should have been to Ihefirm: Held that the replicsation was a valid answer to the plea on demurrer.</p> <p>One partner cannot without the consent of another appropriate the partnership property to his individual purposes: (16 Johnson Hep. 34: 9 B. Mon, 196.)</p>

<p>Error to the Boyle Circuit.</p> <p>Vendee and Vendor. Recission. Infant’s real estate.</p>