Volume 50 — Kentucky Reports

<p> Selling Spirituous Liquor to ¿Slaves. </p> <p>& presentment made under the second section of the act of 1834; {Staf. Law 1503,) prohibiting the sale or gift of spirituous liquor to slaves, should charge that the vendor or giver was not entitled tb the service of the slave for the time being, nor had he permission to sell or give the liquor.</p>

<p> Gambling. </p> <p>A widow to whom dower has not been assigned, is liable to indictmentunder the act of 1848: (Session Acts of 1847-8, page 10) for permitting any hind of gaming to be carried on upon the premises.</p> <p>She is entitled until dower assigned to the use of the mansion house and enclosed land, and woodland for some purposes.</p> <p>The act of 1847-8, supra, applies to every species oí gambling.</p> <p>A person is; not bound to-prosecute those-who gamble on the public road! which passes-Uiiough his laud.'</p>

<p> Ne Exeat. Bonds. </p> <p>Decree of the Circuit Court.</p> <p>The statute of J 800: (Slat. Law 1226) in relation to bonds in cases of writs of ne exeat, which requires the Judge to endorse the name of the surety therein, is in effect repealed by the act of 1827: (Slat. Law 815) which requires the clerk to approve the surety.</p> <p>The condition ••of the bond of the defendant in 'Cases of ne exeat ¡is that the defendant “ shall not < depart from the Commonwealth” • any change of 'terms, however, which do not change the legal -obligation-of the ''•bond, would not •render it invalid; “but no additional obligation should *be imposed, but. that which the flaw requires.</p> <p>The writ of ne exeat is to give a right to bail in cases hr equity, as bail was demandable in cases at law. And the act of 1800 gave the right in cases where the jurisdiction was concurrent, but it does not exist in behalf of a judgment creditor to operate upon the person of tile debtor to enforce payment</p> <p>0ut present of ^1?®-dial law rather goes for the pro-sfrafng the*1 per-son of debtors'</p>

<p> Parties in Suits at Law. Witness. New Trial. </p> <p>Case stated and points made and decided by the Court, and decision ofthe cause.</p> <p>If a eovenarv be to A and B, but to perform a distinct duty to ■each, they have each a separate cause of action upon failure to perform: (t Chit. Plead., Springfield edition of 1833, page 11, and eases cited in notes y and z)</p> <p>B and S covenanted to build a house, consisting of front and ell, for $750— $400 to be paid to B on the completion of the front, and $300 to S on. completion of the ell. Held that B alone might maintain covenant for non-payment of the $450 on the completion of the front, and S was a competent witness for B in such case.</p> <p>And the failure to prove the com pletion of the ell in such case, held to he no ground for non-suit.</p> <p>Matter averred in a declaration, and denied, which is immaterial, should be stricken out upon request of plaintifii</p>

<p> Wills. Jurisdiction. Costs. </p> <p>A suit in chancery to test the validity of a will can be brought only in the county where the testator was domieilled and the will proved: (9 B. Monroe, 449.)</p> <p>There are cases where consent or an answer to the merits will be taken as a waiver of the question of jurisdiction; but no waiver will be presumed, where it is insisted upon in the answer and the grounds stated. And in such ease a consent to change the venue is no waiver of the objection to the jurisdiction.</p> <p>Where the complainant’s bill shows the want of jurisdiction no plea to the jurisdiction is necessary.</p> <p>Gan jurisdiction be given, by consent, to try the validity of a will in any other county than that in which the will is proved?</p> <p>Nor can the er*questions0 of ceilor ims^urisdiction, give jurisdietion to any other Court than probate'of awiil is made.</p> <p>Where «re Court has nbeeauseflie suit’¡s not bro’t within the proper territorial limits, if it have jurisdiction of like subjects within its limits, it shouldgive costs to the defendants.</p>

<p>Appeal from the Caldwell Circuit.</p> <p>Covenant.</p> <p> Case 5. </p> <p>The case; stated.</p>

<p> Replevin. Attachment and Execution liens. </p> <p>Where an attach ment is in the hands of one officer, ,(a constable) and a fi. fa. in the hands of the sheriff vs the same individual, that pro • cess first levied will hold the .property. The lien given by the ■execution will not overreach that acquired by the_ attachment which has been first levied. So of executions in the hands of distinct officers.</p> <p>The statute requiring bonds to oe given before suing out attach ment, does not require that the sum for which the attachment is to issue sho’d be stated, but only that it be in a penalty double the am’t. of the debt. It it be greater it is no objection lo the bond or attachment.</p> <p>An attachment is not void because it unites demands under fifty dollars with others over fifty dollars. When it states that a debt is due by note, the presumption is that the note is payable to the plaintiff. When it is stated to be due by account, it is not necessary to set out items. It is not void by being made returnable to the Clerk of the Circuit Court instead of the Circuit Court. Bor is an attachment rendered void, or a levy under it by the failure of the officer to return it within three months.</p> <p>Although a constable-levying an« atlach'nt where* the sum due’is. over fifty dollars; is required to de-liver the attached effects to the* Sheriff; yet if the-Sheriff seize the property so attached, & claim* the right to levy and sell under.; jl. fa.t the constable may mainu tain replevin.</p>

<p> Actions. Contracts. </p> <p>Where complete performance of a contract is prevented by one party, the other party is excused and may maintain his action: (Jewell vs Bland ford, 7 Dana, 473.)</p> <p>If one party to a written contract to perform work ' perform'din part and its performance preven, ted by the other, the remedy is still upon the written contract#</p>

<p>Wills. Devises,</p> <p>The clause oí construed,*0 be</p> <p>“To be equally divided between my brother J. D. and my two sisters, E G and N G, and the children of my sister N L, to them and their children forever, it being my desire that the portions allotted to my brother J D, and my two sisters, and the children of my deceased sister, shall be made as nearly equal as possible, both in itind * amount.” Held, 1st: That the estate shall be divided into four equal parts. 2d: The children of N L, collectively talcing one fourth. 3d: That the words, “and their children for ever,” are words of limitation, used instead of the term ‘heirs.’</p>

<p> Evidence. Ejectment. Instructions. </p> <p>A judgment in ejectment in behalf of heirs held to be competent evidence in an action of trespass against the widow of the decedent in behalf of the heirs who claim the land.</p> <p>Where written' evidence is przma facie only of a fact, it is error for the Court to tell the jury that it is strong and weighty.</p>

<p> Gaming. Instructions. </p> <p>Instructions of the OircuitJudge</p> <p>A sale and compromise which would bar the right to reclaim by suit property lost at gaming, must be real and Iona fide, based upon the concession! of the fact that the property real' ly belonged to’ the loser.</p> <p>An instruction, though abstractly correct, may nevertheless be misleading where there is no evidence to authorize it.</p>

<p>Error to the Lawrence Circuit.</p> <p>Appeal.</p> <p>Case 11.</p> <p>The case</p>

<p> Consideration. Natural Affection. </p> <p>Instructions given for plaintiff</p> <p>Defendant’s instruction refused.</p> <p>Motion for new trial overruled.</p> <p>To a plea ayerring that a bond was executed without consideration, it is sufficient to deny the fact averred in the plea; any further avermen t of fact need not be proved — it is but surplusage.</p> <p>The relationship of parent and child has been held a sufficient consideration to uphold a bond from the former to the latter, but that of uncle and niece, or nephew, has not — unless under circumstances such as existed in the case of Graves vs Graves: (7 B. Monroe, 213.</p>

<p> Libel and Slander. Equity. Jurisdiction. </p> <p>Demutter filed thereto.</p> <p>Where libelous matter is substantially charged to one or the other of two individuals, either may sue.</p> <p>It Is well settled that words spoken or written in the course of justice, and pertinent to a legal proceeding within the jurisdiction of the tribunal to which they are addressed, and to the remedy then sought, are not actionable, tho’ they be false, “unless résorted to merely for the purpose of conveying the scandal, and as a cover for the malice of the party, and not in good faith for the assertion of a right, or the redress of a wrong:’’ (5 Johns. Rep. 521) Courts of equity have jurisdiction to give relief in ease of a forged instrument, by decreeing its release or surrender, as well as to perpetuate the testimony of the forgery or fraud: Leigh vs Ever-hart’s executors: (4 Monroe, 379, 382.)— argu.</p>

<p> Replevin. Practice in, the Court of Appeals: </p> <p>A writ of replevin issues for two fat boats — the sheriff delivers them to plaintiff and takes bonds for the delivery of a cow if he shalbíail, and re turns upon the-writ that he has - taken bond according to law*. Motion to quash-sheriff’s return, because of the insufficiency ot> the bond, overruled. Motion to-dismiss the suit for-want of valid'bond}' overruled also, and trial’! upon th’e merits;: verdict and judgment for plaintiff: Held that though the bond-was insufficient,, the suit should’ not have been, dismissed, but-plain tiff required’ to give a valid' bond; but as the suit has been, tried, and plaintiff has shown his right to the boats, defendant: had not been prejudiced by the-decision of the Court, and the case affirmed.</p> <p>.£&. party who has mot been prejudiced by the decision of the Court below, cannot have a reversal in this Gourt.</p>

<p> Infants' Real Estate. Guardians' Bien. Trusts. </p> <p>A lien exists in behalf of infan heirs, upon land sold by their guardian under a decree of the Chancellor, until the price is actually paid — a credit given on the bond oí the guardian due to the purchaser, is not such actual payment as will extinguish the lien.</p> <p>Where a guardian sold land of infants, and gave bond in a penalty insufficient to cover his actual responsibility for a faithful application of the proceeds of the sale, though a judgment upon such, bond might. relieve the land to that extent, yet a lien exists upon the land in the hands of the purchaser, in behalf of the heir tor the remain, der.</p> <p>Held not lo be a case in wjiich the heir .could have been required to elect one and relinquish another remedy, or, having pursued one ineffectually to have lost the other— but might pursue each until satisfaction — a ease of several remedies.</p> <p>A release of part of a judgment in an action of debt on the penalty of a guardian’s bond, given for the faithful appropriation of money received by him upon the sale of infants’ real estate, because the judg" ment exceedted the penalty of the bond: Held not to beany bar to the heir in enforcing the lien fer the remainder of the price due for the land, not recovered of the guardian.</p>

<p> Apprentices. Chancery. Jurisdiction. </p> <p>The decree-of the Circuits Court.</p> <p>A free negro woman cannot sell her children by-indenture, tho’ for a time only; such an act is not effectual, either under the act of 1797: (1 Slat. Lam, 766.)</p> <p>An indenture which imposes duties upon the person to whom it is made, of a personal character & confidence, cannot be assigned.</p> <p>The Chancellor has jurisdiction to hear and relieve the complaints of wards, and free negroes, who are bound to service for a time, to prevent irreparable injury being done by selling them into perpetual slavery, or maltreatment.</p> <p>The mother (a free negro) sold her children for a term of seven years, the purchaser having violated the contract, the Chancellor rescinded it: Held that no hire could be recovered by the children, ' who had voluntarily served under the contract made by the mother, though it might by the mother from the time suit brought, but not longer — argu</p>

<p> Contracts. Ton weight, SfC. </p> <p>A sale of hemp by the 100 cwt., or hundred wei’t is a sale of 112 lbs., as the cwt., or hundred wei’t --the statute of 1837: (3 Stat. Law, 267) does not change the number of lbs. in the cwt. or hundied weight, tho’ it fixes the number of lbs. in the ton.</p>

<p> Heirs, liability of. Descents. </p> <p>Heirs in Kentucky are not responsible for the debts of the ancestor on "the ground that land descended to them In Ohio— more especially for simple contract debts.</p> <p>The descent ot an equity of redemption, or a vested remainder upon an unexpired free hold, did not, according to the common law, render the heir liable until it came into possession. The statutes of Kentucky render estates descended in possession,reversion or remainder, liable for the debts of the ancestor in the hands of the heir. But this applies only to lands lying in Kentucky.</p>

<p> Awards. Attorneys at Law. </p> <p>An award made five years after rhe order oí reference, and returned about six years after the reference, and about threeyears after the suit had ¡been dismissed ¡by order of 'Court, and made •'also against one ’who was not ei'ther plaintiff or ‘defendant in the suit: Held to be ‘not such an award as authorized the Court to 'render judgment thereon, though 'entered and ordered to record ¡by consenbof the parties by their 'attornies.</p> <p>Altornies at law cannot confess judgments for their clients before suit brought (Stat. Law, 412)</p>

<p> Assignor and Assignee. Set-off. </p> <p>The insolvency of an assignor at the date of the transfer of a note, is good grounds in equity to authorize a set-off by obligor, of notes due to him by assignor at the date of the assignment acquired by purchase.</p> <p>Equitable demands may also be set off, which the obligor held before the assignment,' and the legal holder wlH 'has transferred the equit'abíe demands, though a proper party, is not always a necessary party;. If his deposition be taicen andhe prove the transfer, it is sufficient to authorize the set off,</p>

<p>Joint obligations. Releases. Practice.</p> <p>An absoluie release of one of several joint oh,ligoi-s, is a release to the others. So a eovenant.never to sue a sole obiigor lias been held a release of the obligation; but a covenant not to sttshneof several joint obligors has been decided to be no release of the oihei.</p> <p>A release written upon the back of an obligation which ib purports to- release, is valid, (and since the act of 1843 need not have a seal,) a delivery, tho’ necessary, may be presumed from the nature of the writing, if intended to have the effect of a release.</p> <p>A jury is necessary to assess damages típon a covenant to pay trank notes.</p> <p>In an action of covenant against two, it was error to render- judgment against one without disposing of the case as to the other defendant.</p>

<p>Error to the GaRrard Circuit.</p> <p>Chancery.-</p> <p> Case 22. </p> <p>The case stated, circuit Court,</p>

<p> Abatement. Wills, construction of. Estates for Life. Remainders, vested and contingent. </p> <p>A writ of error held not to be barred by a previous writ of error in the same cause, where there had been other decrees and proceedings, tho’ the same error might have been adjudicated, but were not considered or decided upon the former hearing.</p> <p>Clauses in llie "will to be construed.</p> <p>Land directed to be sold and the proceeds divided between testator’s children: Held that it was to be considered as converted from the death of testator •and the proceeds •vested in the children.</p> <p>A devise to the testatov’s widow of his farm during her life, together with all the negroes except Mary, being fifteen in number: also all the stock of every description now, on hand, and after the death of the widow it is said: “My negroes are not to be sold, they are to be divided, together with their increase, according to some equitable mode, equally among all my children:” Held that each of the testator’s children took a vested interest at his death subject to be enjoyed after the death of their mother.</p> <p>Boone v Dykes not approved but regarded as overruled: (26 Wendell, 289; 6 Dana, 296; Wms. on Ez’rs., 772-776.)</p> <p>When á testator directs property to be divided amongst his children at the death of his wife, to whom he gives a-life estate', it is-understood' as a-' devise to each of an equal part, <ir the devise to beeonstruedastho' each child had> been named,-</p> <p>Distinguished from the ease of Burnsides vs Wall: (8 B. Mon roc.)</p> <p>Decrees for distribution should define the am’t to which each distributee or creditor is to have of the distributable fund.</p>

<p>Ejectment. Conveyances. Evidence. Possession.</p> <p>Although a Court hasa BpawerSlato compel a party within its jurisdiction, to con-in7 ^Kentucky) made1 by luoh party in obedience to a decree of such Court, «e11 Pyet ^suoh Court Las no power to pass title through the instrumentality of a commission.</p> <p>Though a deed made by a commissioner under a decree of a sister Slate may not be evidence to show title in the grantee named in such deed, it may be proper evidence to show the nature & extent of a possession.</p> <p>One who enters upon a survey & patent, claiming to the extent of the survey, becomes possessed of the whole survey so far as it Í6 not adversely held by others, and by placing tenants thereon to hold and keep the possession, who are not restricted to any particular boundary, the possession will be kept up. One so in possession, tho’ he may have acquired itfrom the tenants of the title holder, cannotrecover upon his own demise by any title derived through a possession so obtained, without title vsthose who were in adverse possession when 'he entered.</p> <p>A report of processioners duly made and returned is compelen t evidence to shot? boundary.</p>

<p> Set-off. Witness. Chancery Practice. </p> <p>The testimony of a no-defendant in a chancery cause may be admissible between other parties where ha has no interest. And that he may subject himself to a decree against himself in behalf of the party vs whom he testifies constitutes no objec tion to his testimony.</p> <p>Mortgage by McKee to Green & Kennard.</p>

<p> Attachment lien. Fraud, Proceedings “in rem.” </p> <p>Heirs of Polly McKee made parties and their cross bill.</p> <p>The- decree of the Circuit Court.</p> <p>Though the Chancellor has jurisdiction to adjust and settle partnerships, it does not follow that when a part lier sues for that purpose the OourL may, in the exercise of that jurisdiction, award an attachment against, & thereby secure a lien upon the individual property of the other partners. The ground for attachment must be alleged and proved independently of the jurisdiction to settle the partnership.</p> <p>A debtor may mortgage his pro perty even after suit lor its attachment, subject however to the attachment lien, if any is created.</p> <p>No proof that McKee acted fraudulently in making the mort gage to Green & Kennard.</p> <p>The assent of mortgagees to a mortgage made for their benefit Will be presumed</p> <p>Case slated be tween H. W. Me Kee and Polly McKee’s heirs.</p> <p>Infant heirs by proeurecTa 'de'i oree for sale of their real estate, ■and the guardian to the benefit of 'The iieirahsue hi •ejectment & obtain a judgment for the lands; a sub-pure h as e r from the guardian filed his bill enjoining the judgment, and praying a conveyance upon grounds of equity set out. The compl a i n a n t s pay the heirs a price to confirm the original sale and convey the title: Held that such an agreement did not absolve the guardian or his sureties from their liability to the infants for the am’t for which the first sale was made; the guardian had become liable therefor by taking the place of the purchaser under the first sale.</p> <p>A decree will not be presumed to have been obtained by fraud and collusion without either al legationor proof.</p>

<p> Infants and Infancy. </p> <p>An infant, as to his executed and voidable eon-tracts for personal property, may, during his infancy exercise the power of rescisión.</p> <p>But when plaintiff he must restóle the consideration received; he cannot have the benefit on his side of the contract without returning the equivalenton the other: (2 Kent, 240; 7 Cowan, 182; McPherson Jg ^as^’pep.’, |^d ^pracJio„ed, uPon the _</p>

<p> Apprentices. Louisville City Court.- </p> <p>The City Court of Louisville has no power to act between master and apprentice, except in cases ■where that Court has bound the apprentice; it does not extend to cases where the binding was by the father of the apprentice.</p> <p>The City Court has not so extensive a power to act bet’eenmaster and apprentice as the County Courts under the act of 1797: (2 Stat. Law, 762) the power of the latter extends to all apprentices within the jurisdiction of the Court.</p>

<p>. Partners and Partnership.</p> <p>Pleadings.</p> <p>Instructions of the Circuit Court</p> <p>One who has bad dealings with a firm is entitled to actual notice of tho withdrawal of any member thereof, otherwisesuchmem her will still remain liable. Wot so with those who have liad no dealings with tho firm, unless the name of the retiring partner appear as one of tho firm.</p> <p>A dormant partner is liable only whilst he was a ly credited) and no notice - of his withdrawal is necessary: (Story on Part., 237-8.) firem,ber(h.ef was</p> <p>Kvery.mevnbei at a company is liable to a creditor of the.companyj because he trusts the company tho’ hedoesnothnow its members, but if one withdraw a subsequent ere ditor does no-t credit the person so withdrawing.</p>

<p> Vendor's lien. Mortgages. </p> <p>Decree' óf Ore Circuit Cónrt, 4 n former deciee of this Court in itvi'n ease.-</p> <p>Two distinct, liens in behalf oí the same peison, that of vendor and mortgagee, cannot simultaneously ex ist; if the vendor's lien exists the mortgage is ineffectual.</p> <p>BroüCtweU King (3 B. Mon roe, 449) overruled by the case of Thornton vs Knox’s jEx’r: (7 B. Mon., 76.)</p> <p>Young sold a tract of land to Kincheloe tor $16,000, rec’d $8,000; conveyed the land, reciting a consideration of $16,-000 paid and secured to be paid, with a knowledge that K Intended to buy goods at Philadelphia upon the ■credit of that conveyance. Y took a mortgage upon the land lor the unpaid purchase money, it bought goods in Philadelphia, ■mortgaged the ■land, and the lat ter mortgage was (first recorded; Held that the lat ter mortgagees, ¡having no notice «f Y’s lien by (mortgage should have priority.</p>

<p> Wills. Devises. Trusts. Curtesy. </p> <p>A devise of land to trustees in trust for the; separate use of a feme covert, the trust to determine with the death of the husband — the wife dies leaving children, the husb’d being beneficially. seized during the life of the wife: Held that he was tenant by the curtesy: (Clan, on Sights 193; 1 Soper on Property, 19) & entitled to the profits of the estate though the trust be determined, if not he as administrator of the wtfe is entitled to the profits.</p>

<p> Administrators, Appeal Bonds. Pleading. </p> <p>Upon appeal bond given by executors & administrators since the act of 1812: (1 Stal. Liw, 675) they are not individually bound beyond assets for anything but costs.</p>

<p> Mandamus. Turnpike Roads. Taxation. </p> <p>The first order of the Clarke County Court.</p> <p>Second order of Clurke Couniy Court.</p> <p>Third order of Clarke County Court.</p> <p>Rule for mandamus.</p> <p>Response to the rule, and ground taken by County Court, and mandamus awarded.</p> <p>An order of the County Court, by which it is said that itsubscribe^ for so many shares of road stock, when con eurred in by a competent major ity of the Court, held binding where no other mode was pointed out, and the Court had authority to make the subscription.</p> <p>Where a County Court having the power to make a subscription for road stock does do so, it is not in the power of a subsequent County Court to set aside and vacate such subscription.</p> <p>The power oí the Legislature to authorize the County Court to open roads,build bridges, and to make turnpike roads is undoubt* ed.</p> <p>A mandamus is the appropriate remedy for a turnpike road company to compel a County Court to comply with its obligation to levy money to pay their subscription to build a road alter subscription.</p>

<p> Lapse of time. Surplus Land. Trusts. Dedication. </p> <p>Where lend is conveyed for the purpose of a town, and the town is laid off, lots sold, and tho’ there may be a surplus con veyed, the only relief would be a compensation for the excess, not for the land itself.</p> <p>But it is too late to claim compen sation for surplus land after a lapse of 50 yeats</p> <p>Lapse of time does not bar a suit to enforce a direct express & subsisting trust of a purely equitable character; but it does bar suits for violation of trusts where the object is redress for the injury resulting from the violation of a trust.</p> <p>A dedication of ground forslreets will be presumed when the owner of land adjoining a town lays off and sells lots on streets extended from the streets of the town, and designating the lots as on such streets, &c: (8 B. Man., 237 l A parol dedication may be made of private property to public use: (Bar clay vs Howell, 6 Peters; Trustees of Dover vs Fox, (9 B. Monroe, 201.)</p>

<p> Contracts. Building Contracts, ’ </p> <p>It is the duty of a builder who undertakes to do work or perform a job of work at a specified price when he proposes any change, to notify the employer if it will be attended with any increase of price: if this be not done the employer is authorized to infer that there will be no increaseofprice.</p> <p>The general rule in respect to building under a special contract at a fixed price is, that so far as the work has been done under the contract, the prices agreed on are to govern, & for extra work not provided for in the contract, and reported to or suggested by the employer rhe rate of charge should not exceed the prices fixed in the special contract.</p> <p>The inference should be, when the undertaker of a house presents to his'employer the draft of the house which he has contracted to build at a fixed price, that it is in accordance with the original plan — good faith requires that it should have been so drafted.</p> <p>To' authorize a jury to give damages for extra ■work alleged to be done upon a building where the whole was to be done at a fixed price, it shu’d clearly appear that the employed knew that the work was extra work not embraced in the original understanding, and assented to by him be» fore done.</p>

<p> Partners and Partnership. Set-off. </p> <p>An individual account, due from one member of a partnership, cannot be set-off against an account due to the firm: (9 B. Mon roe, 195; Story on Partnership, §128; Oow on Part., 59.)</p> <p>That there was an agreement with one partner that the set-off should be made when the account was created, can’t change the case unless the other partner assented.</p> <p>¡One partner may bind his co-partner in all transactions relating to the partnership in the course of its business.</p>

<p> Guardian. Attorney and Client. Parties. </p> <p>The answer of a guardian ad litem., appointed by the Court, before service of process upon iniant heirs, does not bring such heirs properly be fore the Court.</p> <p>The Chancellor will strictly scru tinize a transaction between at' torney & client, * relieve against uneonscientious bargains made between them.— II is an establish ed ground of equitable interposition.</p>

<p> Bequests. Election. Femes Covert. </p> <p>A bequest of mo* ney or personal estate, to be laid out in a slave, is not a devise of a slave, and a noncupaiive will to that effect is yaití.</p> <p>The person to whom such a bequest is made may elect to lake the money: (2 Story98 Rq. §793 “1213; Roper on Leg., 473.)</p> <p>A feme covert may malte an election in a Court oí equity.</p>

<p>Joinder of causes of action. Consolidation of suits.</p> <p>The general rule is that where a party has two or more causes of action which may be joined, he ought so to proceed, and if he bring more than one the Court will compel him to consolidate: \1 Chit. Plead. 228) This rule, however, will not be enforced where it would change the jurisdiction.</p> <p>A plaintiff will not be allowed lo divide his cause of action, and bring two suits instead of one.</p>

<p>Husband, and Wife. Limitation. Adverse Possession,</p> <p>In'a suit by husband and wife, the declaration & proof should show a right to maintain a joint action.</p> <p>One disability cannot be added to another to save a right of action for slaves whether it be a succession of disabilities in the same person, or in a succession of persons: (Cro zer vs Gano and Wife, 1 Bibb, 259-60, overruled.)</p> <p>Limitation in an action of detinue may be relied up on, though not specially pleaded: (Stanley vs Earl, 5 Lilt.)'</p> <p>Where the jury would be bound to find such verdict as they did, no new trial should be granted, though the Court may have misdirected the jmyupon the law of the ease.</p>

<p> Prohibition. </p> <p>Justice^ 6f the risdiotioiiTo in-tie's denounced against keepers 01 11 ÜOUses, (see act of oFi83iqthSteíí Law, 1382.</p> <p>A writ of prohibition will not issue lo restrain, a Justice of the-Peace from issuing execution for a penalty incurred, which is less than it sh'd or might have been. He had jurisdiction of the subject, and that his decision may have been, erroneous will not authorize ihe writ of prohibition,</p>

<p> Chancery practice. Attached property.' </p> <p>Before the Chancellor makes an allowance for keeping property attached, the par ties,complainant and defendant— .-should be nolis tied by rule or otherwise, that they may contest -it.</p> <p>A jailor keeping slaves attached and delivered to him by the Sheriff, is entitled only to a reasonable compensation, not the price for keeping prisoners, and $138 70 for boar ding a negro woman and live childrenlOOdays is. unreasonable upon its face.</p>

<p>Injunction Bonds. Sureties in Injunction Bonds. Damages.</p> <p>Arrest' oí judgment and new trial moved and overruled.</p> <p>A plea to an action on an injnpption bond, averring that at the obtaining the injunction defendant had a perfect equitable right to do so, is not good (6 B. Monroe, 471-2.)</p> <p>In covenant on a# injunction bond the surety cannot be made lj^ble for a greater gum than the penalty ol the bondand interest upon that sum from the dissolu. tion- of the injunction.</p>

<p> Slaves. Emancipation. </p> <p>A slave in Kentucky held not to have acquired a right to freedom by being hired by his master to cut 100 cords of wood across the river, in Illinois.</p> <p>But to permit a slave to go from Kentucky to Illinois a non -slave-holding State, & there to remain-for long periods free from the control of his master, accompanied with declarations of the master that he was free — and intended him to be free at his death. Shewed that the intention in permitting the slave to go to Illinois, was that he should be free— and freedom decree accordingly</p>

<p> Set-off. Notice Assignments. </p> <p>An obligor who has notice that his note has been assigned by the obligee to a third person, will not be allowed to set off a note thereafter purchased upon the obligee though he may not have notice of the person to whom his note has been assigned.</p>

<p> Limitation. Bill of Review. Sureties. </p> <p>The allegation of the bill in this case.</p> <p>Defendant Bnuik’s answer.</p> <p>Decree of the 'Circuit Court.</p> <p>The'heir at iatv cannot .maintain a suit for a personal demand due to his intestate -ancestor— the right belongs to the administrator.</p> <p>Tao statute of limitations of J838 bars anyao tion against the surety of a guardian after five years shall hav6 elapsed after the ward arrives at full age, and the administrator of the surety may avail himself of that bar.</p> <p>The statute of limitations of 1838 applies as well to decrees in chancery, as judgments at law</p> <p>Sureties in a judgment are sureties in the note upon which Ihejudgm’ntwas obtained: (Bray vs Howard, 7 B. Monroe, 489) Sureties in a decree means the same thing, and after the lapse of seven years the surety 'in a decree is released where ¡no execution issues for that period.</p> <p>No suit on a' guardian bond agninst a surety alter five years from the time of the ward arriving at lull age.</p> <p>A deeiee cannot be set aside lorfraud wiserw the-only fraud alleged is in swearing to a falsehood in, the aiiá we rB</p> <p>¿To authorizes* bul of review upon the ground of discovery of* testimony to points at issue in the first suit, it should appear that the newly discovered testimony was of a conclusive character, and could not have been discovered by reasonable vigilance.</p>

<p>Keepers of Penitentiary. Conim’rs of Sinking Fund.</p> <p>The valuation of appraisers appointed by the Commission e is of the Sinking Fund under the act of the Legislature requiring them to make such ''appointed, and their acquiescence in that valuation held to be binding upon the-State.</p> <p>~The fact that the appraisers were appointed three or four the time for them affeouhe^alidity. of their appointment.</p> <p>The valuers having been sworn as required, no fraud on the part of Theobald being established, and the valuation being acquiesced in by the Commission e r s of the Sinking Fund: Held that it was binding as the basis of adjustment of accounts with the Commonwealth.</p>

<p> Execution of Decrees. Orders of Sale. </p> <p>A bond taken by a deputy Sheriff, payable to him-sell as such, upon the sale of property attached by order oí the Chancellor, when the order directed it to be taken to himself as Commissioner: Held to be no ground for quashing the bond.</p> <p>The Chancellor may propeily direct ihat bonds taken upon the sale of property made by his or? der, shall have the force and effect of replevin bonds. But unless the order of sale or decree contain such pro vision, no execution can issue on a bond taken under an order oí sale or decree— but will be enforced by the Chancellor by rule attachment, &c., or action at law upon the bonds.</p>

<p> Trusts. Descents. Lands. Slaves. </p> <p>Where title to land is conveyed to a trustee with out any specification of the duties of the trustee or of the rights of the beneficiaries, he holds a fee under our statutes for the use of the beneficiaries, & it is'subject to the same rules as to its limitation and devolution as a legal estate, and tho’ all the beneficiaries die, the estate does not re? vert, but passes by descent.</p> <p>A deed conveyiag land to a trustee in “spe-'pial trust for my daughter E L, & her children,”— she then having children, gives a joint interest to the daughter and children: (Turner vs Patterson, 5 Dana, 295) and upon the birth of other children they becyme en-upon the death vivors6 take "'Ey ofthendeceased!r</p>

<p>Appear from the Hopkins Circuit.</p> <p>Ejectment.</p> <p>Case 51.</p> <p>Case stated.</p>

<p> Slaves. Emancipation. Parties. </p> <p>A will to 'be effectual to pass slaves, must be executed in the same manner as to pass lands.— And a will which has been offered for probate and rejected cannot be proved and used .collaterally to prove emancipation, of slaves.</p> <p>Though an agreement by the owner of a slave to emancipate him, made with a third person, might authorize such person or his representative to enforce the contract, yet the slave cannot maintain a suit for its enforcement: 8 S. Mon. 633, 548,)</p>

<p>Appeal prom the Campbell Circuit.</p> <p>Chancery.</p> <p>Case 53.</p>

<p>Error to the Franklin Circuit.</p> <p>Ejectment.</p> <p>Case 54.</p>

<p> Lien. Trusts. Evidence. Depositions. </p> <p>To authorize the reading of a deposition in one suit which has been taken in an other suit, there must appear to be identity of parties, and iden tity of question or matter in issue in the two eases, unless when read to con tradiet the witness — or the deponent is a party</p> <p>If a purchase be made of a debt- or’s property under execution by one as the agent and friend ot the debtor, paid for by th’ purchaser, creditors of the defendant in the execution can’ot subject the property without first indemnifying the purchaser.</p>

<p> Trusts. Husband and Wife. </p> <p>Answer & claim of Mrs. Dupuy & children.</p> <p>A trustee purchased property Under execution' which was covered by mortgage' for the benefit of the cestui' que’ trusts, who pay offthe mortgage: Held that tho gh the title be not conveyed, the’ mortgagee holds for them.</p> <p>A wife agreed in consideration oi a conveyance by her husband of his interest ia her lands in Ohio to a trustee for the benefit of herself and ehilthen, to unite in a mortgage in fee of his real estate in Kentucky:— Held that the trust was upon a good consideration and valid.</p>

<p> Church property. </p> <p>A portion of the" church can main their cwnnamM independent of •any appointment by the church for that purpose: Hadden, (Sic., vs Chorn, (8 B. Monroe, 7U.)</p> <p>An allegation in a bill that upon full and mature deliberation certain pers’ns were expelled the ohurch is a sufficient averment of a regular expulsion.</p> <p>A collection of individuals as a church acquiring lights as a church and subsequently dissolving, have no individual rights growing out of the former organ ization.</p>

<p> Circuit Court Jurisdiction. </p> <p>Defence urged.</p> <p>The act of the Legislature of j.849. OSes. Ac/s íarge^íie tcrriTo" ”al ^¿rK'circnit. Courts, and the Circuit Courts only of the counantnJu^Ts'done 10 P“bll.° works have juris diction of the cases.</p>

<p> Sureties. Contribution. Trusts. Supersedeas. </p> <p>Statement of the ¡complainants eases against Lytles, and.decree of the Chancel* lor.</p> <p>The errors complained of by defendants in the Court below, as well as complainants.</p> <p>The ground of Pope’s demand against Lytle.</p> <p>A complainant is entitled to relief to the extent which he provea under his allegations, and his bill should not be dismissed because he fails to prove all he claims.</p> <p>A surety may, after assuming and securing the debt to the creditor, proceed vs a co-surety for contribution.</p> <p>One for whose benefit a deed of trust is made, but who never accepted its provisions hut repudiated them, is not to be prejudiced thereby.</p> <p>va co-surety who Jjaaebtd leaving co-surety Habie for t!ie remainder, cannot S^nless^the fxeeed^ht/proportion of the whole debt: (6 Vez. 805; Theob. on Prin. and See. 266; Pitman on Prin. and Sec., 150; Chit, on Con., 597, 815; 6 M. & W., 168; 2PothierbyEv’s 77, 81; Story’s Eq.,note 32,sec. 493, a 4th ed.)</p> <p>Though it may* be true, so far as third persona-are concerned, that there is no Us pendens until process be served; yet as bete’n the parties, the suit may be con-tinned and in existence and pending: UO GUI & Johnson, 326.)</p> <p>Hatch's claim,</p> <p>To constitute a covenant, the words must impoit an agreement; it is not sufficient that the writing state facts from which an agreement or obligation may be inferred: (2 A. K. Marsh., -122; 3 Dana, 482; 1 J. J. Marshall, 411.)</p> <p>Facts and cir cumstances stated and discussed, and conclusion deduced that Rowan purchased the property and held it in trust-for Lytle and his-heirs.</p> <p>The filing a bill and service of process, actual or constructive, is necessary to constitute a lis pendens, and ren der property purchased liable in Ihe hands of a purchaser without actual notice</p> <p>Where property was purchased undeT execution but in trust for the purchaser’s own indemnity, and for the benefit of the debtor, and a division afterwards made between them: field that_ the parts were liable propoilionably to* the payment of debts of creditors, equally.</p>

<p> Beal estate. Partnership property. </p> <p>Se^s purchased by partners with tute a joint stock of the ^partner-treated as*perso3nal estate, and such: pivinc, d'B. Momoe, erUpartnership funds be vested in. real estate ^ not # necessary he* usec^in the bought for speculation, or as a safe investment of part«míame princiisnert'yet1 dec!-’ dedbythis court though the reason would seem -to be on the side of the affirmative Son* winsome exceptions: (3 Collyer on Part,, 76.)</p> <p>A purchaser at Sheriff’s sale of the interest of one oí two partners in real estate bought and held by the firm, acquires such an interest under his purchase as will be valid vs the creditors of the firm when the purchaser has not notice that (he property was used lor the purposes of the-partnership.</p>

<p> Partnerships. Accounts. </p> <p>Where books' have been kept by a mercantile firm they should be resorted to as giving the data upon which to settle the parlnership- — not a conjectural pro; fit derived from opinions of others as to what was the customary profit on siles in the place</p> <p>None but parties xor^ean11 assign ^101,</p>

<p> Mortgagor and Mortgagee. </p> <p>A morlgagor who pays the mortgage debt is entitled to the moit gaged property. The mortgagee cannot incumber by bis mortgage 1o a third person so as to affect the rights of tile morlgagor, who lias no notice thereof</p>

<p> Parties. Mortgages. Preferred creditors. </p> <p>Where a morli?a«e is made lo u guardián to secum money duo to his wards, the wards are necessary parties to a suit brought by a joint mortgagee for a foreclosure; (Í B. Monroe, M3; 7 lb., 30ij 10 lb., 200.)</p> <p>"Whore part of several mortgagees have taken into possession and appropriated to their own use all the mortgag’d property, they should beheld to account íateabíy to the other joint mortgagees: (8 B. Mon., 313)</p> <p>A mortgagor may pxefer one creditor, or designate the order which the mortgage debts shall be paid.</p>

<p> Steam Boat Liens. </p> <p>The act of 1839: (3 Stat. Law, 11) gives a lien on steamboats built or repaired or equipped in Kentucky, where so built', repaired, or equipped by the master, owner, or consignee, and for materials furnished, &c.</p> <p>The persons performing tire work or furnishing the materials, are prima facie entitled to the benefit of the lien security on steamboats; unless the circumstances show that they looked to the per sonal responsibility of their employer alone, and those resisting the lien are bound to repel the prima iacie presumption.</p>

<p>Pleading in Chancery. Practice. Infants»</p> <p>■Wliere the want .of jurisdiction .does not appear .upon the bill, it must be shown io the Court by-plea; and answer ing to the merits is a waiver of any objection to ¿he jurisdiction.</p> <p>Copies of pa? pers not exhibited in the pleadings, nor otherwise appearing to have been used in a chancery cause, constitute no part of the record.</p> <p>Upon decreeing against infants, day should be given to show cause against the decree on arrivg ing at full age.</p>

<p> Practice in Chancery. Witness. </p> <p>con®el^ 3e-Whiting’s repretharl.tlTpS'* S°u"</p> <p>A bill was iiied.’ against one person as adminis ¡ tvatrix who was-not administratrix, and answered by the true administrator: — - made a cross bill & answered; no - exceptions talteni to it, but proceeded to a iinalt hearing in the-Court below: — . Held that no exception could be taken in the Court of Appeals, to the regularity of the proceed-» ing — nor should, be available in the Court below, after a great lapse of time— seven years ip this case.</p> <p>Where notes were mode exhibits in an answer which is made a cross bill and the defendant to the cross-bill answers, not ■contesting the ■authenticity of the notes, or ■calling for their production, or proof thereof, & they are subsequently lost out of the papees:— Held that the sider^them C°s supported by'the deposition^ ^_of the hand wrulnl thethno°esf°and jitf1 filed elthem pith the answer,</p> <p>An attorney at law, to whom pa pers were confided to be used as exhibits in a chanceiy suit is a competent wit* ness lo prove llieir contents their loss from* the files of the. Court: he is but-the agent andj competent for. the same reason, that an agent is competent to., prove that he de», livered property, paid money, &c*</p> <p>One who had been a trustee, hut who had given up (he fund to t{ie custody of the Courtis com peient to prove ademandagainst cestui que trust.</p>

<p> Towns. Ferries. Former adjudication. </p> <p>The right of the corporation of a town in a eontestwith the proprietor, having been once decided by the proper authorities on an applicationto establish a ferry, cannot be again question’d by the same corp’ration in a new application for the same object— the previous adjudication is a bar.</p> <p>If a ferry shall not be sufficient to answer the purposes of public convenience, may not the County Court require the owner to increase the number of boats, hands, &c., to-meet the public exigencies — arg.</p>

<p> Covenants of Warranty. Damages. </p> <p>The reason staled why the consideration paid is the measure of recovery by covenantee vs covenantor in a warranty of title: but not applicable to all ca^es-</p> <p>The general rule that a warrantor of title is not bound in all cases of eviction is not applicable to to cases where there has not been and cannot be' any recovery of rent or profit irom the vende'e or assignee of the covenant.</p>

<p> Practice in Chancery. Appeals. Writs of Error. </p> <p>Though oné who is a necessary & proper party may ask to be made such by petition, and his petition rejected, no writ of error lies to the decision of the Court upon that motion until there has been a final decree in the case.</p>

<p>Wills, Election. Renunciation by Widows.</p> <p>Mrs. Brand’s will.</p> <p>The questions presented for decision»</p> <p>t Decision of the Circuit, Court.</p> <p>mni»edVlfn Wnfe mansion house, tinu used proper* ty given 10 her herUiehusband,f wln which is a revocable am, disposing of the properly given by pieeíúdéd,d tier iis'provisionsln^ done ¡n pioper time and form.</p> <p>The motives of a widow lor renouncing the pro vision made for her by her h-s-band in his will, is not a proper subi'ct of inquiry, end does not influence the right.</p> <p>v She may renounce as well ioi wliat she may consider a deprivation of power Jo dispose of what is given, as a defect in the provision made for her own supportand comfort.</p> <p>A conditional re nunciution by a widow of the provision made for her by her husband's will made in writing and at tested, which is to take effect within the time allowed by statute to make the renun ci a ti on held to be valid, though the widow die before it be proved and recorded.</p> <p>Whether it be ne cessary to record the renunciation of a widow of the provisions of her husband’s will at all, or within the year — not decided.</p> <p>.A widow may make her dea<h the condition on which the t enunciation of the pro vision made for her by the wilt of her husband shall become abs ilute, i] it happen within the year given íor a renunciation.</p> <p>The effect of a renunciation by a widow, of a provision made for her by her husband, is not to create a right, but to confirm & renderabsolme a pre-existingright given to her by law.</p> <p>Therenunciation by a widow of (he provisions of her husband’s will, is substantially a transfer or surrender of her right to the heiis or devisees of her husband, & in consideration of which she becomes entitled to the provisions made by law for her — and may be a renunciation upon-condition.</p> <p>®le renuriolátíon by a widow of the provisions made for her by the will of lifer husband, may be upon condition tliatshe die within a period less than one year from the death of her hnsbind, and a transfer made bv her will be • effectual to pass property which become her properly by the act of renunciation.</p>

<p> Joint Surities. Contribution: </p> <p>One of several su relies to whom properly is mortgaged for his security, is not hound to tal:e possession oi ihe properly until he has paid the debt or has leason to-apprehend it an¿ that the property is about to be-squandered,</p> <p>... , mortgagee do steps, he should iairC,liaivendible value of the pioperi-y winch might have been Jrdiirigei]bce.pr°P"</p>