Volume 52 — Kentucky Reports

PETITTOIiFOKlir-JU2ÍOTION. Case 1. Case stated. 1. The city of Maysville, under the act authorizing subscription to stock in the Maysville . and Lexington railroad company, had a right to vote jointly with the county on the question of the propriety of making the subscription, and the call for the vote by the president and directors of the railroad company was authorized by the statute. 2. “A demonstration of the evil consequences to flow from the abuse of a particular…

Presentment. Case 2. Caso stated. 1. A present-: ment in the words of a penal statute is not always sufficient. It should apprize the defendant of wliac is intended . to be Eroved against im, with such certainty ’ as to bar a second prosecution for the same offense. 2.- A presentment for selling spirits to a slave, should state the name and ownership of the slave, or the name of the person having the control of ,the slave.

Mandamus. pase 3. Gase stated. ..I, Though thé 28tll section of thé 4th article' of tlie constitution may authorize the election of a temporary juage in all cases when the circuit judge is absent or cannot properly adjudicate, yet th'at section has no reference to the mode of paying such temporary judge. The' compensation arises out of the provisions of the 25th section of the 4th article, arid the 13th section of thé 8th article. 2.

Indictment,- Case 4. Case stated, The act of 1851, regulating proceedings against officers (sess. acts, 385,) gives to the officer and the c ommonwealth the right of appeal from any final disposition of the prosecution. by a judgment of the court. It lies from the judgment of the court Quashing the indictment; but a writ of error does not lie on behalf of the commonwealth.

<p>SHe who by his own act prevents the performance of a condition precedent, cannot take advantage of the non-performance, (1 Bibb, 383; 3 lb. 298.)</p>

Chanoer*.- Case 6. Questions arising in the ease. 1. In chancery as at la-w, one at least of the necessary-parties must reside or be served with process in the county where the suit is brought, to give jurisdiction over parties not appearing, resident'ih, and served in other counties; a-nd. unless judgment or decree is rendered against the party resident in the county of the suit, or process served, there can be no judgment or decree against the party residing out of the…

<p>1. A purchaser of a chattel who is defrauded, may by a tender back of the property rescind the contract; but if vendor refuse to receive it and vendee take it into custody and act with it as if it were his pwn, it will be regarded that, in so floing, he has waived the benefit of the tender, and cannot thereafter have a rescission.</p> <p>2. A bill for rescission, in such case, shoüld be dismissed without prejudice to a suit at l^.w.</p>

Debt. 0ase 8- 1. An answer to an action on« a note, by ordinary petition,to the effect that defendant did! not owe the' debt, held to be bad on demur-fef-. alleging that tatentÍfñtended the moneyspecnot to^be paid, but to b^ehargvancement, and for — held'tobe bad, and no detion -without an averment that had come to the handsoftheadmmistrator to pay each dis-sum”tee & llke

Will case. Case 9. Case stated, The decision of the county-court now to be considered, and the objections thereto. 1. Where a will is established by the decision of the circuit court, and ordered to record, and recorded; that decision appealed from and affirmed by the court of appeals, it is not necessary again to record the will. 2.

Case. Case ip. Caae skated. 1. The court is not bound to give an abstract opinion in the form of an instruction to the jury, though it be a correct principle which is asked. _2. A physician is responsible for all the ill consequences which may result from the a d ministration of medicine to a slave without the consent of the owner.

Chancery. Case XI. Case stated, 1. Slaves in' Kentucky cannot become the. legal owners of, property, tho’ they may, with the assent of their masters, have the physical possession and use thereof. They cannot contract in their own right. Any right growing out of their contracts belongs to the master. Slaves cannot take as legatees, nor can the owner take anything by virtue of a devise to his slave. 2. Any devise to a slave, except that of freedom, is void.

Chancery. Case 12. F. A guardian 'cannot sue in bis own name, either at law or in chancery. He must sue in the name of the infant “by his guardian;” so when the suit is brought by vroehein ami. X Heirs and dls tributeessannot sue at law to recover the personal estate unadministered; though they may, in equity, sue the administrator and debtor when the former violates or neglects his duty- 3.

Case 13. Case stated 1. A plea of former suit brought cannot avail to abate the second suit, unless the parties are the same, nor then, if the first be dismissed before the plea is filed. Judgment of the circuit court. 2. A bailee’ for hire isbound to ordinary care and diligence in the preservation of the thing hired. If he transferthepossession, still being bound to the owner, the transferree may be responsible to him. 3.

Trespass. Case 14. Case stated, and judgment of tbe circuit court. 1. By §145 of the Code of Practice, each cause of action, in ordinary petition, should constituteaseparate paragraph; but if there be two causes of action stated iu one paragraph, and plaintiff prove one, he may recover for that without proving the other. The objection to uniting the two causes of action in one paragraph should have been made before answer.— (See §140.) 2.

Case 15. Case stated,- 1. A bill in chancery to attach and sell, for payment of debt, the lands of a non-resident, must be filed in • the county where the land is situated. A suit to subject effects of a nonresident in the hands of third persons, must be brought in the county of the residence of the debtor, or the holder of liis effects, or in wliioh he may be served with process — :or where the effects may be situated, if in possession of no one who can be iraed. 2.

Ohanoeky-. Case 16. The assignor of an equity is generally a necessary party to a suit by the assignee to enforce it; but where the equity sought to be enforced inheres in the legal title and has passed with it, the holder of such legal title and equity may enforce the equity without making the assignor thereof a party to the proceeding.

Debt. Case 17. Case stated, A 'writing in these words, “Due W. S. D. M., ninety-six dollars sixty cents, balance due for wages as clerk of steamer Kentucky, No. 2,” signed F. P. 0., Captain, does not import a promise on the part of F. P. C. to pay. It is but a certificate of the captain that the owners pf the boat are so indebted. — i (See 8 B. Monroe, 625-6.)

Uebt,- Case 18.- Gase stated. Í. Before the statute of 1842-S, (Sess. Acts, ll,) it was the Settled law of this state that an agent could not bind his principal by a' sealed instrument, without a' power under seal. (4 Monroe, 41; 5 B. Monroe, 74.) Since the passage of the Revised Statutes the seal is not essential to give such authority. (Rev. Stat. chap. 28, §2.) 2.

Case. Case 19. Case stated, and judgment of the circuit court. ,, Grounds for new trial, and judgment overruling it. i The substance of the evidence adduced on the trial. 1. Where apar» ty discoverstestimony, even after the argument has com1meneed, and it-can then be given, it is his duty to ask that' it be heard, and'' the duty of the' court to admit it; if the party fail to offer it, it is no ground for a new trial. (2 A. K. Marshall, 43.) 2.

APPEAL PROM FRANKLIN CIRUIT, Chancery. Case 20. Case stated] When there áre several nonresident debtors liable for the Same demand, and they own-property in-Kentucky, it inay be attached; and though one of them was casually here and served with process, that is no reason why the attached property inay not be sold for the debt. (Act of 1837.;

Chancery. Case 21. Case stated. 1. A motion for a new trial suspends the judgment. If a verdict in an action of debt be returned against two defendants, and the plaintiffs enter a remitter against one, no judgment can be entered against the other without a disposition of the suit, as to the first; and a new-trial should be granted. 2. The chanpower to relieve against an erro-

Peí. Pase 22, Pgse stated. 1. The sunj claimed as damages in the petition determines the question of jurisdiction. 2. A claim for the recovery of specific personal property, and damages for the taking or withholding, may be united in the same petition. (Code of Practice, §137.) 3. The illegal taking and detention of property is a conversion. 4.

Replevin.- Case 23. andas?ud*afcea£' 0f the circuit court. Questions presented for decision. 1. Held: that these facts did not amount to a delivery of all the goods, nor a waiver of the Jien for freight, unless it was so intended, of which a jury is to judgq.

Chanoehy. Case 24. Case stated. 1. The following clause in a will held not to be mandatory, but only advisory, and conferred only a power, vizi “It is my “ will and de“sire that my “ wife Lucy “… Held: that this contract was ex-ecutory and could only be enforced by the ■fridow or her r e presentatives ana not by the slaves, (8 B. Monroe,633; lb. 348; 7 Dana, 31; 11 B. Monroe, 243-4,) and did not amount to im emancipation of the slaves. 3.

OhanozbY. Gase 25. 1. Slaves can only be emancipated by writing. ■2. A contract by a purchaser of a slave, by which he agrees to emancipate the slave at a future period, cannot be enforced by the slave. (11 B. Monroe, 239.) It can only be enforced by the party contracting, by compelling specific execution.

Debf. Oase 26. Dase stated. 1. A variance between the amount stated in the caption of the declaration and in the body thereof, is only a variance in form and not available on demurrer. Held: that though informal, the defendant-was not prejudiced'.

Motion. Case 27. Case stated. 1. A plea to a motion to quasli an execution issuing against a bankrupt after liis discharge, averingthat the discharge was obtained by fraud, must specify the fraud, and reasonable notice be given of the fraud or eoncealmentintended to be relied upon. (4 sec. Act of Congress.) 2. Matters of discharge, happening after judgment, may. be available upon a motion for the relief which was anciently granted upon audita querela: ■

Oase 28. The case stated and points in issue. mining dthe question of catator^to1 malee an alteration in his will, it is competent to an.6 Tnquisitfon by which the fqund^to be^ lunatic some time before his death, and leave cide^1,whether the alteration fore or*after the inquisition. 2.

Chancery. Case 29. Case stated.; 1. An estate for life in slaves belonging to a feme sole, vests in tbe husband absolutely _ on her marriage, and his ignorance of his right will not divest it. 2. A general residuary devise, ■which may include slaves, is nota specific devise ofslaves, so as to pass the title in the slaves, not named in it, to the devisee; but they pass to the executor for the payment of debts.

Pm: Case 30. Case stated in the petition. The defense set up by the answer. 1. When a statute gives S' remedy for an Injury, or give.*' an action in a particular court, it is generally a virtual exclusion of the jurisdiction of any other court. The remedy may be changed by the legislaturc.

Ohanoeet. íCase 31. 'Case stated. X. Extrinsic evidence to prove, not what a testator expressed, but what he intended to express, is inadmissible.

Chancery. Case 32. Case stated. 1. Where tlie' wife is possessed of real estate which is sold by the husband, though1 the wi'fe unite in the' sale, yet if the Husband becom'e' insolvent before the price be paid,the chancellor -tvill, at the instance of the ■frife, provide at Suitable settlement out of th'e price for the Benefit of the Wife. (SB.Mon-tee, 24.) 2.

Ejectment. Case 33. Case stated. Judgment qf circuit court, and motion for new trial overruled. Substance of tbe evidence in the bill of exceptions. Hans Huddleson’s will. ÍJuestioris presented’ by the Record for' decision. Í. The pó‘ssepsión of the widow of land of which her husband died seized, is not ad versé to .that of the heirs of the husband, though a part of the heirs lived with her on t£e premises. 2.

Chanoeey. Case 34. Case stated. defence , sfet up by defendants. I. Where there Mas been a mistake in a policy of insurance, a court of chancery has jurisdiction to cor, reet the mistake and grant the appropriate relief, if thepolicy has been Broken,- 2.

Uxan. Case 1. Case stated. 1. Action on the case cannot be maintained by one having the legpl title to land against another who enters, ' cuts timber, quarries stone, and commits like trespasses.

Ord. Pi~. Case 2. Case stated. 1-tTpon a attorney to payjjj” ue^fiT’definding the decriminal charge IlotIllng “ore can be recoverei than nomiunless^itX^averred t5iafc he special damage admitted3or proved, 2. According to article 3, page 80, of the Code j^e ^defendant fail to appear, the court may give judgment without a jury, if the facts alleged justify a judgment for plaintiif. 3.

Case 3. Case stated and decision of the court. 1. An order of the county court directing the removal, by an individual, of a nuisance from the public square by the next term, is such a final order as an appeal lies from. 2. The statute of 1796, (1 Stat.

Case 4. Question sta- 1. The sale of trees growing upon land, made in prospect of immediate separation from it, is not a sale of the land or any interest in it, and is not within the statute of frauds. (Chitty on Con. 301; 4 Metcalfe, 580; 7 Green-leaf, 477.) 2. A contract conferring an exclusive right to the use of land for a time, for the purpose of making a profit of the growing surface, áse., may be within the statute of frauds. {Green-leaf on Ev. 309.) 3.

Pet. Eij. Case 5. Oase stated. 1. By the Code of Practice, the only pleadings in suits in equity-are the petition by the plaintiff, the answer or demurrer by the defendant, and the demurrer or reply by the plaintiff. 2. An action1 by a ward, or the representative of the ward, against the guardian, must be brought in the county where the guardian qualified. (See Code of Practice, §124.) 3. The Code of Practice should be observed in its forms as a rule of practice.

Pet. and Sum. Case 6. Case stated tod judgment fcelow. wnere asms is brought in the name of one for the benefit of another, the court has jurisdiction to determine, upon motion, who has the right to the control of the suit and its proceeds; and such decision is such final order and judgment as authorize a writ of error or

CjfANMtET. (Jase 7. Case stated, áse. 1. Marriage operates as a gift to the husband of such personal property as is in possession of the wife at the marriage;” and as to her slaves since the act of 1846, it “gives him a contingent interest only.” He does not take as purchaser.

Appear. Case 8. 1. As the law-stood at the passage of the act of 1840, (3 Statute Law, 378,) justices of the peace had exclusive jurisdiction of causes in law oi-equity under five pounds, and from their decisions in such oases, where the matter in controversy exceeded twenty-five shillings, an appeal was allowed to the county court. 2.

Assumssit. Case 9. J held a demand against G, and was abo'ut to sue out an attachment; W promised that if he would desist and not sue, that he would pay or see the debt paid; J agreed, and did not sue —held that the promise by W was within the statute of frauds and not binding.

Obd. Par. ‘Case 10. Case stated. 1. In a proceeding by ordinary petition, where the proceeding at law is the appropriate remedy, it is not proper to transfer the case to the equity docket, unless the equitable matter presented as a defense be valid, and one which the party has a right to insist upon. S. The second section of the ■act of 1838, limiting actions againstsureties, (3 Stat.

O^ahoesy. Oasa 11. Clase stated. Vendor of aren for the price, assigned a note for the purchase monwrds^re^pur cha3ed the landdee and sold it to an innocent purchaser, who1 had no knowledge that the note given upon the first sale was not paid— held that the vendor and assignor having purchased with full knowledge of an outstanding lien, and conveyed to an innocent purchaser without notice of the insolvency of the obligor, was liable in chancery, to the assignee, in case of…

<p>ERROR TO MASON CIRCUIT.</p> <p>0iti>. Pet;</p> <p>Case 12.</p> <p>1. Previously to the passage of the act of 1846, to protect the rights of married women, the husband purchased slaves professedly for the wife, and with money which he said belonged to the wife —held that the legal title to the slaves vested in the husband, and upon his death, in his legal representative, as assets.</p> <p>2. A court of law in a proceeding by ordinary petition cannot, where the pleadings do not so present the case, decide it as a case in equity; though the proof may show a case for a decision npon equitable principles. (Code of Practice, § 6.)</p>

Chancery, Case 13. 1. A femecov--' ert having a' separate estate* may charge it' by executing a note or other evidence of debt or responsibility. Though' she may not, charge herself personally, she' may charge her' separate estate, and the execution of a note,- or indorsing a bill of exchange', is evidence of her intention to charge her separate estate,■where there is no prohibition' so to charge the separate estate, in the deed creating it. 2.

Ord. Pbt. Case 14. Case stated 1. The law regards all agreementsmade by a debtdr not to olaim/nsnry which he has agreed to pay, whether in the form of a release or by direct promise, as made under the coercion of the creditor, as shifts and devices to evade the statute, and they are inefr fectual to bar the right to insist upon the usury. 2.

Case 15. Pase stated. Ó lie tv he' lends his credit to another in the form of a note, to be sold to raise funds, cannot against the assignee of that note, set up any private agreement unknown to the assignee, as a deieuse to the payment of the note; or refuse to pay because the indemnity promised had not been given.

<p>1. In a proceeding by tbe surety of a constable for his release as surety, under tbe first and second sections of chapter 97 of the Be-vised Statutes, 654-5, it is necessary that the cause why the surety asks to be released should be stated in the notice of the application; and if denied, must be proved upon the trial.</p> <p>2. Any reasonable cause, whether it relate to the surety or to the officer alone, or to both, may be deemed sufficient. The county court should be allowed a considerable discretion in deciding upon the sufficiency of the cause, which this court would not control, unless for palpable mistake of judgment.</p>

<p>ERROR TO NICHOLAS CIRCUIT,</p> <p>MoiiON,</p> <p>Case 17.</p> <p>Case stated’.</p> <p>1. B y the eighth article of the twenty-seventh section of the Revised Statutes, p. 219, jurisdiction is Conferred on the Circuit courts to hear and determine motions against constables for failing to psiy over moneys collected by them, and several Sums under five pounds may be limited with others which, separately, exceed five pounds. (2 B. Monroe, 46.) The second section of the sixteenth article, same chapter, gives jurisdiction to the quarterly courts to bear proceedings against constables for defalcation in office. The second section of the twenty-fourth article gives justices of the peace jurisdiction of motions against constables for failing to make proper returns. The second section of the fourth article of the nineteenth chapter of tbe Revised Statutes, p. 187, gives the motion only for money collected, which the constable fails to pay on demand. Thesecond sub-section, same article, permits the recovery of interest from the time of demand, and ten per cent.</p> <p>2. Upon rendering judgment on a motion against a constable for failing to pay over moneys collected, no judgment exceeding the amount of the demand, and legal interest, can be given, unless a de~ ™antl l3*3 aUeS; ed and proved or admitted.</p>

®rd. Pry. Oase 18. Case stated. I. A policy of insurance issued bv a clerk of the company purporting on its face that “it shall not be valid until co u n tersigned by John Burgoyne, agent at Cin-ci n n ati,” and which was never so signed, is nót a valid and binding policy. 2. Where a trust and confidence of a high character is given to an agent, he cannottransfersueh authority, without express power to do so. 3”.

Ord. Pet. Case 19. Oase stated. 1. It is’£nofc good ground of demurrer that an amended petition, in a suit by ordinary petition, departs from the cause of action set out in the original petition.— (See chap. 3, Code of Practice.) 2.

Chancery. Case 20. Case stated. Í. It is a well Settled rule, that When, the statute of limitations begins to run in bar of a right to recover personal property, it continues to run notwithstanding the death of the claimant. (1 Bibb, 181; 2 lb. 537; 3 Monroe, 41;) but if it did not begin to run before the death of the claimant, it would not commence until administration graftted. 2.

Chanobw. 0ase 21 • Case stated. 1. Upon the dissolution of a partnership by the death of one partner, the personal represen, tative of the de ceased partner becomes tenant in common with the survivor, of all the partnership property and effects in possession; but as to mere choses in action, debts, and other rights of action belonging to the p artn«i'ship, they vest in the survivor. (Gow on Part. chap. 5, §4, 377; Story on Part. §346, 517.

Ejeotmen®. Case 22. Case stated. 1. A deed was fpace by husband and wife in 1819 for laud, the inheritance of the wife, acknowledged and recorded. Held: that the husband was not tenant by the curtesy, and that if aDy right of action accrued to the heirs ofthejfeme to sue for the land, it accrued upon her death, and not upon the death of the husband. (See 2 Blacksione, 128, side page; lb. 208.)

Chancery. Case 23.' Case stated. 1. Á pledge of movable property is valid against bona Jide purchasers; • (Hamilton v. 'Wagnon, 2 Marshall, 334;) and is as valid without as with writing. 2. A bill of exchange pledged as indemnity to the pledgee, cannot be transferred by the pledger to another by mortgage, to the prejudice of the pledgee.

Chancery. Case 24. Case stated. After a lapse of twenty years, tlie chancellor, will not grant relief to a purchaser for a deficiency inland conveyed.

ShSECtMEHt. Case 25. 1. It is essentially a question of practice,whether after á plaintiff says' he has concluded his testimony, and a motion is made to instruct the jury as in case of nonsuit, the court shall permit plaintiff to introduce farther proof, and it has a broad discretion.

Chanoeey. Case 26. Case stated, 1. A husband, in 1842, conveyed to a trustee certain slaves and other personal property for the separata use of the wife, and for the ben1 clied without issue, band^nd… Held: that the husband Uh^slavesle&c° to the exclusion of the father as heir of the daughter.— {Broun, S¡c. v. Alien,' ifc. 13 fen Everett', 12 II. 371; Payne v Payne £c.n ib. 139.) 2.

Pet. Eq. Case 27. Case stated; I. The j5iro‘ visions ih tlie charter óf th¿ city of Louis» ville of 1831 and of 1851, laying'6'out6 of streets or alleys without the consent of the mayor and the benefit of not foible hem efit of those streets and^alleys through their property, and invite the thereof0 And the city authornotiee'^of them as public thovoughfares, and doing so, previaeir° being o° pened will be presumed. 2.

Chancery. Case 28 Case stated. 1. The rulff is, that th® computation of time is to be made from an act done, th© day on -which the act -was done must be included; but ■when the computation is to be from the day itself, and not from the act done, then the day on -which the act -was done must be excluded. (Bellaris v. Hester, I Lord Raymond.) 2.

<p>1. Contracts to marry, like all other contracts which are to be performed by the concurrent acts of the parties, cannot be carried but but by the mutual good faith of the contracting- parties; and neither party can be said'to be in default, unless the other party is willing and ready to perform at the time and place agreed upon, if any has been fixed. If no time and place have been agreed upon, there is no default until an offer is made to fix time and place and to consummate the agreement to marry.</p> <p>2. Where no time and place are agreed upon for the consummation of a marriage contract, no action can be maintained by either party for a failure to perform, unless the plaintiff show an offer to perform, and a failure of the defendant to comply.</p> <p>3. Where the plaintiff fails to set forth a good cause of action in his petition, and the fault is not cured by the answer, a verdict foi? the plaintiff cannot stand; but a new trial should be ordered.</p> <p>4. When the petition, in ordinary proceeding, sets forth no cause of action, and the defect is not cured by the answer, advantage maybe taken of the. error'by motion in arrest of judgment or writ of error. (Code of Practice, § 146-7-8-9.)</p>

¿Ejectment. ■Case 30. 1. An equitable defense cannot be presented as a bar to an ejectment. 2. The husband is not tenant by the curtesy of land of the wife unless he was seized during the coverture; and un less so seized, he has no right which will prevent the heir of the deceased wife from a recovery against an adverse holder during his life. (See Welch’s heirs v. Chandler, Sfc. ante, p. 420.)

>Ord. Pei. Case 31. Case stated. 1. A release by the county court of one of several sureties in a guardian’s bond, is not a release of the so-sureties. 2. Where oh® or more joint sureties in a guardian’s bond is released by the county court, and a new bond is given, the remaining sureties in the first, and the sureties in the second bond, are all jointly bound to the ward, and to contribution between each other. (1 Moaroe, 206.) January 28.

<p>1. A bill of sale for a slave contained these covenants and none other: “I warrant said negro sound in body and mind and a slave-for life” — held, that there is not in this covenant any warranty of title in the vendor, and that covenant does not lie upon this writing, in ease the vendee lose the slave by a better title.</p> <p>2. A warranty that a slave sold, is a slave for life, does not imply a warranty of title in the vendor.</p> <p>3. The words “I have sold” used in a bill of sale for a slave, do not imply a warranty of title in the vendor.</p> <p>4. Though no particular form of words is necessary to create a covenant, yet words must be employed which import an agreement. It is not enough that facts are stated from which an agreement may be inferred. (1 A. K. Marshall, 421; 1 J. J. Marshall, 408; 3 Dana, 482; 5 lb. 324; 11 B. Monroe, 311.)</p> <p>5. In covenants real the law will imply a covenant; not so in covenants in respect to personal property, which cannot be enlarged by implication.</p>

<p>APPEAL FROM BRACKEN CIRCUIT.</p> <p>Ejectment.</p> <p>Case 33.</p> <p>Oase stated.</p> <p>1. If á sala be made of land in possession of a tenant, the tenant, and all coming intd possession under liim, becomes the tenant of the veri-’ dee; and may not attorn his possession to á stranger.</p> <p>2. No possession short of twenty years ■will authorize a recovery in an action of ejectment founded on the possessory. right only.</p> <p>3. A deed spoken of and referred to in a bill of exceptions, but not copied into tbe record, cannot be" regarded by the court of appeals.</p> <p>, 4. Ifanagent ortenantunde/the*3 Possession of land without torhmentSand a possession so than !or years confers no right.</p> <p>5. B y the common law, if there was a feoffment of several tenements, it was necessary that livery bemadeofeach, or that each tenant should at-torn to the feoffee. (2 Black. 316.) Though livery is now dispensed with where » title passes, yet where there is no pretense of a transfer of title but only a transfer of possession, an actual delivery, or attornment, or entry, is requisite to consummate the transfer.</p> <p>6. An instruction predicated upon a state of fact which the evidence does not conduce to prove, is erroneous.</p> <p>7. An ambiguity arising from tbe proof of extrinsic facts may be explained by extrinsic facts.</p>

&ANOE&Y. Case 34. 1. A settlement made after marriage, in pursuance of articles made or letters -written before marriage, is valid, even against creditors orpurchasers — marriage being a valuable consideration.

Uhanoert, Case 35. Case stated. Where it appears that the partie-,111 a suit brought to Kettle their accounts, are trying to get ad,vantage of each other, and thus to make the eourts of justice instrumental in promoting their schemes of injustice and fraud, it is the safer course to dismiss each party, without costs in favor Of either.

<p>APPEAL FROM UNION CIRCürf.</p> <p>Chancery.</p> <p>Case 36.</p> <p>-e stated</p> <p>1. Mere irregularities on the part of a sheriff in the sale of land, will not vitiate the sale. Asale, however, made on a day not authorized by law, is not a mere irre gularity. Sheriff has no authority to sell land except on the days designated by statute, (6 É. Monroe, 115,) unless consented to by the parties to the execution.</p> <p>2. A lease of land for five years is valid, though not recorded, and the lessee may hold duringhis term, where a sale is made by a sheriff under execution against the lessor- — though the purchaser will be entitled to rents accruing after tbe sale.</p> <p>3. A tenant may show that bis landlord’s title has expired, and that he is lfinjself the owner of the land, either by purchase under execution, or by voluntary alienation.</p> <p>4. Thetenant jnay purchase the land of his landlord, and the right to redeem is not different from that against any othff person.,</p> <p>5. A tenant purchased the land of his landlord, on which he held a lease for years, under execution; the landlord recoveredajudgment at law for rents which accrued after the purchase; the tenant filed his bill to enjoin the judgment-held, that though the tenant was.not legally bound for the rents, yet the chancellor had no power to relieve himjhis defense was at law.</p>

<p>ERROR TO HARDIN CIRCUIT.</p> <p>Covenant.</p> <p>Case 37.</p> <p>Case stated,</p> <p>In an action on a bond, given by defendant for the forthcoming of property, attached to satisfy a decree of the chancellor, a delivery of part of the property does not exonerate the obligors from any part of the penaltyofthebond, but the plaintiff may recover the full value of the property not delivered, not exceeding the penalty of thebond, if necessary to satisfy the decree.</p>

Chasoer-sv Case 38. Case stated. 1. Where an execution has been levied, a stay of the proceedings under it does not operate á release of the levy, but it still exists, and sale may thereafter be made; not so ■«'here the execution after levy is returned Stayed by the plaintiff. (4 Bibb, 338; 8 É.

Mono». •Case 39. Case stated. 1. The decís? ions of the board contemplated by the statute for deciding contested elections, was intended to be a final decision of the contest, “so far at least as regards questions of fact touching the number and legality or illegality of votes given for the respective c andidates,” and the court, of appeals will not reconsider such questions.

<p>APPEAL FROM BRACKEN CIRCUIT.</p> <p>ÜHANOEEY.</p> <p>Case 40.</p> <p>Case stated,</p> <p>I. If one Convey property to take effect at liis death, it is a good advancement. (2 Pr. Williams, 445, 442; Williams on Ex’ors. 921; 9 Dana, 86.)</p> <p>2. íhe statute of 1830 re-q u i re d advancements to Be estimated at their value ■when made.— ÍThe Revised Statutes, page 282, contain, in substance, the same provision. Where there is an advancement by deed of gift to take effect in future, it should be estimated according to its value iv li eii complete by enjoyment.</p> <p>3. A father by deed of gift makes advancements of part of his estate to a portion of his children, making no disposition of the re: mai rider; the law makes the disposition of such remainder; and by placing a value upon an advancement, the donee is es-topped, so far as he claims under the will to controvert the value so . placed upon it by the donor.</p>

GffANCE&T.' Case 41. Case' stated, &nd so much of the will of Robert Kyle as rebates to this contest. 2.

<p>ERROR TO MADISON CIRCU1T.-</p> <p>©tewcamr.</p> <p>©áse 42.</p> <p>Case stated.</p> <p>A surviving a claim against h2,fcnerdf0cre|sr^ <?TTpaid by to”com?'inTor payment thereTítlí TheTepa-’ rate creditors of deceased partner. (Gow Part’ §407.)</p>

Case. Case 43. 1. There exists no principle of law which subjects a municipal corporation to responsibility for injuries to property within its territorial limits, by a mob. 2. The officers of a city are quasi civil officers, andaré responsible for malfeasance or nonfeasance in office; but the corporation is notresponsible.

<p>ERROR TO MERCER CIRCUIT.</p> <p>Ohanoert.</p> <p>Case 44.</p> <p>1. The chancellor -will not permit a trust to fail for want of a trustee. If the executor refuse to qualify, and the county court fail to appoint a trustee in accordance with power given by the will, the chancellor will appoint a trustee.</p> <p>2. Trusteeappointed by the chancellor derives his power from the chancellor, and not from the will, and can only execute the trust so far as directed by the power which appointed him.</p>