Volume 53 — Kentucky Reports

<p>ERROR TO MONTGOMERY CIRCUIT.</p> <p>motion. Case 1.</p> <p>Case stated.</p>

<p>ERROR TO GARRARD CIRCUIT.</p> <p>Pet. Equity. Case 2.</p> <p>Case stated.</p>

<p>ERROR TO BOYLE CIRCUIT.</p> <p>Ord. Par. Case 3</p> <p>Case stated</p>

<p>ERROR TO CARTER CIRCUIT.</p> <p>Ejectment. Case 4.</p> <p>Case stated.</p>

<p>1. One who innocently acquires the possession of property taken by a. trespasser without his knowledge or subsequent assent, and not taken for his benefit, cannot be regarded as a trespasser by relation, even though he sell the property so taken, but may be liable in detinue or trover for the value. (I Dana, III.)</p> <p>2. But in such ease, the value of the property held or converted, without smart money, is the criterion of damages.</p> <p>3. To constitute one a trespasser by relation, “it is necessary that lie should liave subsequently assented to the trespass, and that it should have been committed for his use, though he may receive property taken by trespass.” (3 Monroe, 423.)</p> <p>4. Á party may not complain of an instruction which is wholly abstract, and by which he is not prejudiced.</p> <p>1. One who innocently acquires the possession of property taken by a trespasser without his knowledge or subsequent assent, and not taken for his benefit, cannot be regarded as a trespasser by relation, even though he sell the property so taken; but may be liable in detinue or trover for the value. (1 Dana, 111.)</p> <p>2. But in such ease, the value of the property held or converted, without smart money, is the criterion of damages.</p> <p>3. To constitute one a trespasser by relation, “it is necessary that he should have subseque u 11 y assented to the trespass, and that it should have been committed for his use, though he may re c e i v e property taken by trespass.” (3 Monroe, 423.)</p> <p>4. A party may not complain of an instruction which is wholly abstract, and by which he is not prejudiced.</p>

<p>ERROR TO GREENUP CIRCUIT.</p> <p>Ord. Pet. Case 6.</p> <p>Case stated.</p>

<p>ERROR TO CUMBERLAND CIRCUIT.</p> <p>Case 7.</p> <p>ease stated.</p>

<p>ERROR TO BATH CIRCUIT.</p> <p>Case 8.</p> <p>Case stated.</p>

<p>ERROR TO LEXINGTON CITY COURT.</p> <p>Case 9</p> <p>Case stated.</p>

<p>ERROR TO BATH CIRCUIT.</p> <p>Case 10.</p> <p>Case stated.</p>

<p>1. It is not authoritatively decided in the case of Rogers w. Thomas, 1 B. Monroe, 393, that one who has contested a will before the county court, shall not thereafter contest it by bill in chancery in the circuit court.</p> <p>2. Shall one who has been a party opposing the probate of a will in the county court, be barred thereby from filing a bill in the circuit court, to contest the will under the 11th section of the act of 1797 — CJuere.</p> <p>3. One should not be considered barred, who had been only’once named in the record as a party, when the whole record showed, that others had been the conductors of the opposition throughout.</p> <p>3. It is not authoritative! y decided in the case of Rogers B. Thomas, 1 B, Monroe, 393 that one ivho has contested a will before the county court, íihall not thereafter contest it by bill in chancery in the circuit court.</p> <p>2. Shall one who has been a party opposing the probate of a will in the county court, be barred thereby fr«m_ filing a bill in the circuit court to contest the will, under the lllh section of the act of 1797. Quere.</p> <p>3. One should not be considered barred who had been only once named in the record as a party, ■when the whole record showed that others had been the conductors of the oppos ition throughout.</p>

<p>1. Whether a common law court has power to require of a defendant who is sued by one claiming right to freedom, binding himself to have such person forthcoming at a subsequent term of the court, and not to sell or dispose of such person, or send him out of the state, or has not such power, yet, if such bond be given, it is obligatory as a common law obligation, and suit may be maintained thereon for a violation of its conditions.</p> <p>% One whose agent is sued in respect to property which he holds for his principal, and who has knowledge of the pendency of the suit, is bound by the decision against the agent.</p> <p>3. Where the right of one suing for freedom is doubtful, it is not usual for hire to be adjudged to the plaintiff, though his right be established.</p> <p>4. Where one held as a slave sues for freedofn, and a bond is required by the common law judge, and given by the defendant, stipulating for the forthcoming of the plaintiff at the next term of the court, that he will not sell or remove him out of the state, but without any stipulation to pay hire, upon the right of freedom be adjudged to plaintiff, though the conditions of the bond be broken, there can be no hire recovered for the titeo preceding the judgment establishing the right to freedom, but for subsequent hire and the expenses incident to recovering his freedom from one to whom the defendant sold the plaintiff pending an appeal, he had a right to recover.</p> <p>1. Whether a common law court has power to require of a defendant, who is sued by one claiming right to freedom, binding himself to have such person forthcoming at a subsequent term of the court, and not to dispose of or sell (Such person or send him out of the state, or has not such power, yet if such bond be given it is obligatory as a common law obligation, and suit may be maintained thereon for violation of its conditions.</p> <p>2. One whose agent is sued in respect to property which he holds for his principal, and who has knowledge of the pendency of the. suit, is bound by the decision against the agent.</p> <p>3. Where tho right of one stifling for freedom is doubtful, it is not usual for hire to be adjudged to the plaintiff though his right be established.</p> <p>4. Where one. a®ora 8fa™ dom, and a ed'byU^oommo“ law iUilP the defendant thePUlfortifconN ingof the plaintiff at the next term of the court; that he will not sell or remove him out of the state; but without any stipulation to pay hire, upon the right of freedom be adjudged to the plaintiff, tho’ the conditions of the bond broken, there can • be no hire recovered for the time preceding the judgment establishing the right to freoclom, but for subsequent hire and the expenses incident to recovering his freedom from one to whom the defendant sold the plaintiff pending au appeal, he had a right to recover.</p>

<p>ERROR TO FLEMING CIRCUIT.</p> <p>Forcible Entry, &c. Case 13.</p> <p>Case stated.</p>

<p>ERROR TO LOUISVILEE CHANCERY COURT.</p> <p>Pet. Eq.</p> <p>Case 14.</p> <p>Case stated.</p>

<p>Case 14,</p> <p>APPEAL FROM GALLATIN CIRCUIT.</p> <p>Case stated.</p>

<p>,1. Tho-ugli one who grants a right of way through his field for running a railroad, is not bound to inclose his field; it does not foHow that the company are not responsible for injury done to stock on the road by the train, in no ease; nor is the company under legal obligation to inclose the railroad.</p> <p>.‘I. if one who grants the right of way for a railroad through his field, permit his stock to run at large upon the road, it is at his own risk, and the company are not responsible for injuries done to stock straying upon the road, unless the injury could have been avoided by the agents of the company, with duo regard to the safety of the train and its contents.</p> <p>3. if stock permitted to run at large upon a rail track, are killed accidentally by the train when running at its customary railroad speed, no right of action accrues to the owner of such stock.</p> <p>1. Though one who grants a right of way-through his field for run-ding a railroad, is not hound to inclose his field, it does not fellow that the company are not responsible for injury done to stock on the road by the train in no case. Nor is the company under legal obligation to inclose the railroad.</p> <p>2. If one who grants the right of tyay for a railroad thro’gh his field, permit his stock to run at large upon the road, it is at his own risk, and the company are not responsible for injuries done to stock straying upon the road, unless the injury could have been avoided by the agents of the company, with due regard to the safety of the train and its contents.</p> <p>3. If stock permitted to run at large upon a rail track, are killed accidentally by the train when running at its customary railroad speed, no right of action accrues to the owner of such stock.</p>

<p>1. Tho (Jode of Practice, title 7, chapter 1, page 30, 31, requires that the plaintiff’s petition must contain a statement of the facts constituting his cause of action in ordinary and concise, language, without repetition.</p> <p>2. The Code does not change the law which determined what facts constitute a cause oí action; though, by reducing all forms of action to one — that by petition — it changes the question whether the facts stated show a cause of action in trespass or assumpsit or any other particular form, into the question whether the petition shows a right of action in any form — by showing a right in the plaintiff, and an injury to that right by defendant — which is to ho determined by the general rules of law respecting rights and wrongs as established by long usage in particular actions.</p> <p>3. The Code of Practice does not authorize a recovery upon a statement of facts, which, before its adoption, did not authorize a recovery in some form of action; and, therefore, former precedents and rules and adjudications may be resorted to as authoritative, except so far as they relate to distinctions between the different forms of action, or to formal, and merely technical allegations.</p> <p>A. The Code of Practice requires that the petition shall contain the facts constituting the cause of action — if founded on a writing, it is to be filed and referred to, and so much of it set forth as will show that the plaintiff, by reason of alleged acts or omissions on his part, and of the defendants, is entitled to his action and relief.</p> <p>1. The Code of Practice, title 7, ohaiater 1, page 30,31, requires that the plaintiff’s petition must contain. a statement of the facts constituting his cause of action in ordinary and concise language without repetition.</p> <p>3. 'The Code does not chango the law which dete rmined what facts con ■stituted a cause of action, ftho’ by reducing all jarías of action to one — that by p e t it ion — it changes the questionwliether the facts stat e d show a cause of action in trespass or assumpsit, or any other particular form, into the question whether the petition shows a right of action in any form — by showing a right in the plaintiff and an injury to that right by d ef endanl— which is to be determinded by the general rules of law respecting rights and wrongs as established by-long usage in particular notions.</p> <p>3. Thcs Code of Practice does not authorize a reeovery upon ;i statement of facts, which before its adoption did not authorize a recovery in same form of action, "and therefore former precedents and rules and adjudications may be resorted to as authoritative, except so far as they relate to distinctions between the different forms of action,” or to formal and merely technical allegations.</p> <p><i. The Code "uireTthat the petition shall consütuttngtíie cayse of action a writing, it is referred fod aud no much of it show1 that''the plaintiff,byreasou of alleged ads or omispart*3and*of the defendant, is aetiondand rc-</p>

<p>MOTION TO QUASII EXECUTION FROM COURT OF APPEALS.</p> <p>Uaoft IK.</p>

<p>!. lathe construction of statutes, where the intention is clear and explicit, and. ils.provisions susceptible of but one interpretation, the evil, if any, must be corrected by legislation, not by the ju diciary.</p> <p>2. The Code of Practice, sec. 151, expressly authorizes a defendant when sued by ordinary petition, to plead and rely upon an equitable defense; and by sec. 9, it is provided, that in such case either party may have the suit transferred for final adjustment to the equity docket.</p> <p>1. lu the construction of statutes, where the intention is clear and explicit, and its provisions susceptible of but one interpretation, the evil, if any, must be corrected by legislation, not by llie judiciary.</p> <p>2. The Code of Practice, see. 151, expressly authorizes a defendant, when sued by ordinary petition, to plead and rely upon an equilable defense; and by sec. 9, it is provided that in such case either party may have the suit transferred for final adjustment to the equity docket.</p>

<p>APPEAL FROM NELSON COUNTY COURT.</p> <p>Bridge Case.</p> <p>Case 20.</p> <p>Case stated.</p>

<p>ERROR TO BOURBON CIRCUIT.</p> <p>Pet. eq.</p> <p>Case 21.</p> <p>Case and question stated.</p>

<p>ERROR TO LOUISVILLE CHANCERY COURT.</p> <p>Chancery.</p> <p>Case 22.</p>

<p>ERROR TO PAYETTE CIRCUIT.</p> <p>Ord. Pet, Case 23,</p> <p>Case stated.</p>

<p>ERROR TO FAYETTE CIRCUIT.</p> <p>Chancery.</p> <p>Case 24.</p> <p>Case stated.</p>

<p>ERROR TO FAYETTE CIRCUIT.</p> <p>Ord. Pet.</p> <p>Cage 25.</p> <p>Case stated.</p>

<p>1. Though the owners of slaves have authority to inflict chastisement in order to enforce obedience to their lawful commands, yet the constitution and laws of Kentucky furnish some protection to the slave, and does not allow that he be killed or maimed, or subjected to cruel and inhuman punishment, even to enforce obedience to lawful commands, which may result in the death of the slave; and no such authority can be vested in a hirer or bailee of a slave.</p> <p>2. The hirer of a slave, or his overseer, who, by cruel and inhuman treatment or neglect, causes the death of the slave, is responsible to the owner for its value.</p> <p>3. If a slave is so injured as to occasion loss of life, limb, or health by the treatment of the hirer, it is incumbent on such hirer to show a justifiable cause for the treatment; the law does not presume that a punishment resulting in such consequences was justified or authorized. Chastisement, when proper, may be inflicted by the hirer of a slave, in moderation, when the slave is in a condition to be punished.</p> <p>4. It is not permissible for the hirer of a slave to inflict cruel and dangerous chastisement to coerce obedience in a slave hired.</p> <p>5. The hirer of a slave injured by cruel chastisement by an overseer, under whose management the slave is placed, is responsible to the owner.</p> <p>lm Though the owners of slaves tolnflict^chai tlseK>ent w or" der to enforce obedience to commands^ yet the constitution Kentucky3 fu°5 nisl1 some P™tection to the slave, and does not allow that he be killed or maimed, or subjected to cruel and inhuman punishment, even to enforce obedience ' to lawful commands, which may result in the death of the slave; and no such authority can be vested in a hirer or bailee of a slave.</p> <p>2. The hirer of a slave, or his overseer, who, by cruel and inhuman treatment or neglect, causes the death of the slave, is responsible to the owner for its value.</p> <p>3. If a slave is so injured as to occasion loss of life, limb, or health by the. treatment of the hirer, it is incumbent on such hirer to show a justifiable cause for the treatment-the law does not punishment^ sulfcinS iu such a consequence was justified ohaTttemeut' wheni proper’ may De mulcted by the hirer of a slave, in m o deration, when the slave is in a condition to be punished.</p> <p>4. It is not permissible for tlie liirer of a slave to inflict cruel and dangerous chastisement to coerce obedience in a slave hired.</p> <p>5. The hirer of a slave injured by cruel chastisementby an overseer, under whose management the slave is placed, is responsible to the owner.</p>

<p>J. A devisee of an undivided part of. a tract of land may recover to the extent of the undivided interest before partition.</p> <p>2. If the husband, in right of the wife, enter upon land in which the wife has title to an undivided interest with others, such entry will enure to the benefit of the other part owners, unless the right of the latter part owners is denied, and he claims the whole as belonging to his wife. If the right of the other part owners be admitted or not denied, the entry of one part owner is the entry of all. The possession of one tenant in common, is the possession of all, unless there be an actual ouster.</p> <p>J. Where land belongs to several tenants in common, and one of them enters, he acquires possession of the whole, unless he expressly limit his possession to a part and he is seized of the whole and of every part, and is not adverse to the right of his co-tenant, unless he gives to it that character, by claiming the whole or denying the right of his co-tenant to any part. „</p> <p>4. If a husband enter upon land to which his wife has title, he cannot prejudice her right by purchasing an adverse title to the prejudice of the wife’s right.</p> <p>5, The plaintiff in ejectment may recover to the extent of an undivided interest shown in the lessor at the date of the demise.</p> <p>(>. The statement of one entering upon the possession of land, whilst in possession, is evidence of the manner in which it is held, and the interest claimed therein.</p> <p>7. Where there are several defendants in ejectment, and the testimony of one is important for another defendant, the conrt, in the exercise of a sound discretion, should permit separate trials.</p> <p>1. A devisee of an undivided part of a tract of land may recover to the extent of the undivided interest before partition.</p> <p>2. If the husband, in right of the wife, enter upon land in which the wife has' title to an undivided interest with others, such entry will enure to^ the benefit of the other part owners, unless the right of the latter part owners is denied, and he claim the whole as belonging to bis wife. If the right of the other part owners be admitted or not denied, the entry of one part owner is the entry of all. The possession of one tenant in common, is the possession of all, unless there be an actual ouster.</p> <p>3. Where land belongs to several tenants in common, and one of them enters.heacquires possession of the whole, unless he expressly limit his possession to apart, and he is seized of the whole and of every part, and is not adverse to the right of his co-tenant, unless he gives to it that character, by claiming the ■whole or-denying the right of his co-tenant to any part.</p> <p>4. If a husband enter up-oi land to which his wife has title, ' ho cannot prejudice her right by purchasing an adverse title to the prejudice of the wife’s right. 5.The plaintiff in ejectment the extent of an terestsh^wnTii the lessor atthe m;se,</p> <p>6. The statetering°«pon the possession of possession! is evidence of the which it is interest^laimcd therein.</p> <p>7. Where there are several defendants mejectment, and of* one^iéTiní portant for an-in the exercise of a sound discretion, should permit separate trials.</p>

<p>ERROR TO MADISON CIRCUIT.</p> <p>Attachment.</p> <p>Case 28.</p> <p>Case stated.</p>

<p>APPEAL-FROM THE LOUISVILLE CHANCERY COURT.</p> <p>Put. Equity.</p> <p>Case 29.</p>

<p>An undertaker agreed to lay tlie brick of a bouse to be built, at $2 50 per thousand, kiln count; the money was not due until the work was done. Held that a loss arising from the accidental destruction of a part of the wall before its completion must be borne by the undertaker.</p> <p>An undertaker agreed to lay the brick of a house to be built, at $2 50 per thousand, kiln count; the money was not due until the work was done. Held, that aloss arising from the accidental destruction of a part of the wall before its completion must be borne by the undertaker.</p>

<p>EREOS TO 3JEFFERSON CIRCUIT COURT.</p> <p>Case 31.</p>

<p>1. The Code of Practice permits but docs not require an equitable defense lo be made to an action to recover a legal demand, (Sec, 151.) The defendant permitting a judgment to pass upon a legal demand may thereafter have relief from the judgment by a proceeding by petition in equity.</p> <p>3. When the chancellor has jurisdiction, and the case is before the court, it will retain that jurisdiction notwithstanding the exercise of similar jurisdiction by courts of law, cither by its own assumption or legislative enactments.</p> <p>3. The plaintiff in equity sought to set off a note, assigned to him by his debtor upon the plaintiff, having a judgment against him, which note was assigned before judgment, on the ground of the insolvency and non-residence of'the plaintiff — the judgment being assigned to a third person. Held, that the plaintiff's equity was elder and superior to that of the assignee of the judgment, though tho note was assigned upon condition that the assignee should be able to procure the set-offi</p> <p>1. The Code of Practice permits but docs not require an equitable <lofense to be made to an action to recover a legal demand. (See. 151.) The defendant pennittinga judgment to pass upon a legal demand may thereafter have relief from the judgment by a proceeding by petition in equity.</p> <p>S. When the chancellor has jurisdiction, and the case is before the court, it will retain that jurisdiction notwithstanding theexorcise of similar jurisdiction by courts of law, either by its own assumption or legislativeenactments.</p> <p>3. The plaintiff in equity sought to set-off a note, assigned to him by his debtor upon the plaintiff, having a judgment agamst him, which note was assigned before judgment, on the ground of tho insolvency, and non-residenco of tho plaintiff — tho judgment being assigned to a third person. Held, that plaintiff’s equity was elder and superior to that of the assignee of the judgment, tho' the note was assigned upon condition that ihe assignee should be able to procure the set-oif.</p>

<p>I. A husband has no right to dispose, by will, of his wife’s interest in her deceased father’s estate, which has never come into his possession.</p> <p>8. If the husband does attempt such a disposition of his wife’s interest in her father’s estate, and make bequests in the same will to his wife, it presents a case in which the widow must elect to take under or ag-ainst the will.</p> <p>3. An election to take under or against a will, to be binding on the devisee must be made understandingly, and is not to be inferred from the mere failure to renounce the provisions of a will by the widow, where the will is made disposing of property clearly her own, and not the husband's, to bequeath.</p> <p>4. A widow, who is herself an infant, will not be considered as making an election from the fact that her guardian received property given to her by the will.</p> <p>1. A husband has no right to dispose,bywill, of his wife’s interest in her deceased father’s estate, which has never come into his possession.</p> <p>2. If the hue-band does attempt such a disposition of his wife’s interest in her father’s estate, and make bequests in the same will to his wife, it presents a case in which' the widow must elect to take under or against the will.</p> <p>3. An election to take under or against a will, to be binding on the devisee must be made understandingly, and is not to be inferred from the mere failure to renounce the provisions of a will by the widow, where the will is made disposing of property clearly her own, and not the husbands, to bequeath .</p> <p>4. A. widow, who is herself an infant, will not bo considered as mating an election from the fact that her gu ardían received property given to her by the will.</p>

<p>ERROR TO GRANT CIRCUIT.</p> <p>Clase 34.</p> <p>Case stated.</p>

<p>Pet, Equity.</p> <p>ERROR TO LOUISVILLE CHANCERY COURT.</p> <p>Case 35.</p>

<p>1. Pleas commencing in bar and concluding in abatement, are not good as pleas in abatemeut.</p> <p>3. Pleas in abatement, not filed on the day to which the cause is docketed at the first term, should be rejected by the court.</p> <p>:l. It is not admissible to give to a plea containing matter of abatement only the form of a plea of non est factum, and file it after the time for pleading in abatement has passed,</p> <p>4. The court of appeals cannot say that the circuit court erred in admitting testimony, or that a verdict of a jury is too large unless the testimony be stated in The bill of exceptions.</p> <p>1. Pleas commencing in bar and concluding in abatement are not good as pleas in abatement.</p> <p>2. Pleas in abalement, not filed on the day to which the cause is docketed at the first term, should be rejected by the court.</p> <p>3. It is not admissible to give to a plea containingraatter of abatement only tbo form of aploa of mo» est factum, and file it after tlie time for pleading in abatement has passed.</p> <p>4. The court of appeals cannot say that the circuit court erred in admitting testimony, or that a verdict of a jury is too large, unless the testimony be stated in the bill of exceptions.</p>

<p>APPEAL PROM THE LOUISVILLE CHANCEE!' COURT.</p> <p>Pet. Eq.</p> <p>Case 37.</p> <p>Case stated.</p>

<p>APPEAL PROM CHRISTIAN CIRCUIT.</p> <p>Ord. Pet.</p> <p>Case 38.</p> <p>Case stated.</p>

<p>ERROR SO MASON CIRCUIT.</p> <p>Ord. Pet.</p> <p>Case 39.</p> <p>Case stated.</p>

<p>1. The terms of a guaranty, “J. B. M. being about to commence retailing dry goods, I hereby undertake and contract with L. & Co., to become responsible to them for the amount of any bill or bills of merchandize sold by them to said M., agreeably to the terms of sale agreed upon by the parties, without requiring said L. & Co. to prosecute suit against said M. therefor.” Held, that this guaranty was not a limited guaranty confined to the first bill of merchandize bought by M. of L. & Go., but was a continuing guaranty embracing all the purchases.</p> <p>2. Bach letter of guaranty must be construed by its own terms, and courts are inclined to giye to such instruments a liberal and not a restricted construction. (7 Peters, 113; 12 Bast., 227; 2 Camp hell, 413; 8 Johnson, 119.)</p> <p>3. Where there is a written, continuing guaranty it is not necessary that notice should be given of each successive sale or advance. (7 Peters, 113; 1 Story, 22.)</p> <p>4. Where a guaranty is to pay a debt, or where it is that in case of default of principal debtor the guarantor will perform, then there is no obligation on the creditor to demand payment of the debtor primarily liable. It is the duty of guarantor to ascertain the fact. (24 Wend. 35; 2 H. Black, 613.) Such is this case.</p> <p>5. Hotice of the acceptance of the guaranty is necessary, and an intention to act under it, but no farther obligation devolved upon the creditor. It was the duty of guarantor to inquire for himself of his principal. Non-payment involved a breach of the undertaking and liability to suit.</p> <p>I. Tho Serins of a guaranty, ■‘J. B. M. being about to commence retailing dry goods, X hereby undertake and contract with L. & Go. to become responsible to them for the amount of any bill or bills of merchandise sold by them to said M. agreeably to the terms of sale agreed upon by^ the parties, without requiring said Jj. & Co. to prosecute suit against said M. therefor.” Held, that this guaranty was not a limited guaranty confined to the first bill of merchandise bought by M. of L. & Go., but was a continuing guaranty embracing ail the purchases.</p> <p>2. Each letter of guaranty must be construed by its own terms, and courts are inclined to give such instruments a liberal and not a restricted construction. (7 Peters, 113; 12 East. 227; 2 Campbell,. 413; 8 John. 119,)</p> <p>3. Where there is a written continuing guaranty, it is not nscessary that notice should be given of each successive sale or advance. (7 Peters, 113; 1 Story, 22)</p> <p>4. Where a guaranty is to pay a debt, or where it is that in. case of default of principal debtor the guarantor will perform, then there is no obligation on the creditor to demand payment of the debtor primarily liable; it is the duty of guarantor to ascertain the fact. (24 Wend. 35; 2 H. Blade, 613.) Such is this case.</p> <p>5. Not' -a of the acceptance of tlie guaranty is necessary, and an intention to act lindel- it, but no farther obligation devolved upon tlie creditor. It was the duty of guarantor to inquire for himself of his principal. N on-payment involved a breach of the undertaking and liability to suit.</p>

<p>1. Where an attachment isues upon a proceeding by ordinary petition, the defendant may examine the plaintiff, on motion to quash the attachment, and he may be further examined by plaintiff, (Code of Frac. Sec. 570;) and where it has been conducted by both parties no objection is available for want of notice. Affidavits are admissable in opposition to a motion to quash an attachment, and depositions taken upon notice are admissable as affidavits.</p> <p>á. One partner has a lien upon partnership effects to secure the payment of partnership debts, and it is not a fraud in one to transfer such effects to the other for that purpose, in preference to the claims of his general creditors.</p> <p>3. The judgment of the circuit court overruling a motion to quash an attachment issued in ordinary proceeding is not final and conclusive, but is subject to the .revision of the court of appeals after final judgment, as every other aet of the eourtin the case.</p> <p>4. A denial, in the answer of a defendant to a proceeding by ordinary petition, in which an attachment is sued out upon affidavit charging fraud, of such fraud, makes an issue to be tried npon motion to discharge the attachment, which motion is to be tried by the court, (Code of Frac. Sec. 307,) and the burden of proof lies upon the plaintiff in such case,</p> <p>5. Tho refusal of the circuit court to discharge an attachment on motion does not preclude the court from discharging it at the final hearing.</p> <p>G. It is error to order the sale of attached effects where tho defendant has only an undivided interest with one not a defendant. Such person should be made a party by order of the court.</p> <p>(Code of Frac. Sec. 67.</p> <p>1. Where an attachment issues upon a proceeding by-ordinary petition, the defendant may examine the plaintiff on motion to quash the attachment, and may be further examined by plaintiff, (Code of Practice, sec. ¿70.; and where it has been conducted by both parties no objection is available for want of notice. Affidavits are admissible in opposition to a motion to quash an attachment, and depositions taken upon notice are admissible as affidavits.</p> <p>2. One partner has a lien upon partnership effects to secure the payment of partnership debts, and it is not a fraud in one to transfer such effects to tiie other for that purpose, in preference to the claims of his general creditors.</p> <p>3. The judgment of the circuit court ovorruling a motion to quash an attachment issued in ordinary proceeding is- not final and conclusive, but is subject to the revision of the court of appeals after final judgment, as every other act of the court in the case.</p> <p>4. A denial, on tlis answer of a defendant to a proceeding by ordinary petition, in which an attachment 23 sued out upoa affidavit charging fraud, of such fraud, ■ niat.es an issue to be tried upon motion to discharge the attaohment, which motion is to be tried by the court, {Code of Practice, sec. 307,) ant! tha burden of proof lies upon the plaintiffin such case.</p> <p>5. The refusal of the circuit court to discharge an attachment on motion does not preclude the court from discharging it at the final hearing-</p> <p>6. It is error to order the 3ale of attached effects where the defendant liaa only an undivided interest with one not a defendant. Such person should be made a par-' íhecourT^Codí °f Practice, sec.</p>

<p>1. For a civil injury amounting to a felony no redress could bo given by the common law, until the ofienso had been inquired into and a conviction of the accused or a judgment of acquit!,although this rule has not been strictly observed in Kentucky. See Pr. Dec. 203. But where life lias been taken tile civil injury is regarded as merged iu the felony. Baker v. Bolton, 1 Campbell, *.</p> <p>2. Tho cause of action for an injury to tho person dies with the per. ' son; though a husband may maintain a civil action for an injury to the wife, so far as medical service and funeral expenses were incurred, or a parent fora child up to its death, but not for tho joss of life. 3 Comstock, 493; 1 Gush. 475; Carey and zeife o. Berkshire R. R. Co,; Skinner v. Housatanic R. R. Co.</p> <p>1. I’or a civil injury amounting lo a felony no redress could bo given by flic common law, iint.il theoffenso liad been inquired into and a conviction of the accused or a judgment of acquittal — tho’ this rulo has not becu strictly observed in Kentucky. Sea Dr. Dec. 203. But where life ■has bec-n taken the civil injury is regarded as merged in the. felony. Baker v. Bolton, 1 Campbell, 493.</p> <p>2. Tho cause of action for an injury to the person dies with the person; tho’ a husband may maintain a civil action for an injury to the wife, so far as medical service and funeral expenses was incurred, or a parent for a child up to their death, but not for the loss of life. 3 Comstock, 483; 1 Cush. 475; Carey and wife u. Berkshire Railroad Co.; Skinner n. Honéstame Railroad Co.</p>

<p>ERROR TO M’CRACKEN CIRCUIT.</p> <p>Case 43.</p> <p> Case stated. </p>

<p>APPEAL FROM THE KENTON CIRCUIT.</p> <p>Case 44.</p>

<p>When a sheriff levies an execution which has not been replevied upon goods and chattels, and sells the goods, after the death of the defendant, for their full value, and returns the execution satisfied, the administrator cannot, in an action of assumpsit against the sheriff, recover the price and value of the goods which have been so appropriated in satisfaction of the debts of the intestate. Whether the execution might not have been quashed, not decided.</p> <p>Where a sheriff levies an execution which has not been replevied upon goods and chattels, and sells the goods after the death of the defendant for their full value, and returns the execution satisfied, the administrator cannot, in an action, of assumpsit against the sheriff, recover the price and. Value of the goods which have been so appropriated in satisfaction of .the debts of the intestate. Whether the execution might not have been gnashed, not decided.</p>

<p>ERROR TO WASHINGTON CIRCUIT.</p> <p>Oase 1.</p> <p>Case stated.</p>

<p>APPEAL PROM THE CARTER CIRCUIT COURT.</p> <p>Presentment,</p> <p>Case 2.</p>

<p>1. Elementary authorities distinguish between sentence or judgment and conviction.</p> <p>2. The 2nd clause, 24th section, Rev. Stat., contemplates a death in jail, of slave condemned to be hung, after sentence and before execution, not a death after verdict merely,</p> <p>3. The circuit court has no right to fix value of slave condemned to be hung except at the time when, or after sentence, by 1st clauso 24th section, Rev. Stat.</p> <p>1. Elementary authorities distinguish between sentence or judgment and conviction.</p> <p>2. , The 2d clause 24th sec. Rev. Stat., contemplates a death in jail, of slave condemned to be hung, after sentence and before execution, not a death after verdiet merely.</p> <p>4. The circuit court has no right to fix value of slave condemned to be hung except at the tima i alien or after sentence, by 1st clause 24th sec., Rey. Stat.</p>

<p>1. By the Revised Statutes, Chapter 27, Article 8, the circuit courts have original jurisdiction, both at law and in equity, in all cases where the jurisdiction is not exclusively delegated to some other tribunal. By the 24th article, same chapter, jurisdiction is given to justices of the peace in all cases of contract, where the debt or damages claimed, exclusive of interest, does not exceed fifty dollars; but this jurisdiction is not exclusive, nor is jurisdiction in such cases exclusively given to any other tribunal, therefore the circuit court has jurisdiction of a suit upon a mercantile account, where the amount claimed was less than fifty dollars.</p> <p>2. In suits upon merchants accounts, where the statute of limitation is relied upon, the time is to be computed from the first day of January succeeding the respeetiue dates or times of the delivery of the respective articles charged in the account.</p> <p>3. Goods purchased by an infant for his marriage, suited for such purpose to one in his circumstances in life, are necessaries, and a contract for such is binding.</p> <p>1. By the Revised Statutes, ehap. 27, art. 8, the circuit courts have origiual jurisdiction, both at law and in equity, in all cases where the jurisdiction is not exclusively delegated to some other tribunal. By the 24th article, same chapter, jurisdiction is given to justices of the peace in all cases of contract, where the debí °r (lamag-es claimed, ex-elusive of interceedd0fifty°dob ]ar?; but this not exclusive ”.or ís .1 urisdictlon 111 sucil cases exclusively oj^er tribunai therefore the jurtedictio^ofa cantiiealamei'~ where the a-was^ess^than fifty dollars,</p> <p>In suits accounts1,where i?ie .^statute 0f lamfations is relied upon, the eomputedt0from ÍLbe first day of January succeeding the resPec.fclve dates or times of the delivery of the respective articles charged in the account.</p> <p>¡¡- 3. Goods purchased by an infant for his marriage, suited for such purpose to one in his circumstances' in life, are necessaries, and a contract for such is binding.</p>

<p>1. The 2d section of the act of 1798, has no application to an action to recover land which has been given in exchange for other lands where, by the terms of the exchange, the party -who might be evicted of the land received was to bo restored to the title and possession, of the land'given.</p> <p>3. According to the law applicable to ail exchange of land, independently of express contract, either party had a right, in case of loss of the land received, to re-enter upon the land given — which gave title.</p> <p>3. In such case the warranty presents no estoppel to the re-entry of the grantor, or his heir, who has lost the land received in exchange.</p> <p>1. The 2d section of the act of 1798, has no application to an action to recover land which has been given in exchange for other land where, by the terms of the exchange, the party who might be evicted of the land received was to be restored to the title and possession of the land given.</p> <p>2. According to the law ap plicable to an exchange of land, independently of express contract, eitherparty had a right, in case of loss of the land received, to re-enter upon the land given —which gave title.</p> <p>3. In sucli case the warranty presents no estoppel to the reentry of the grantor, or his heir, who has lost the land received in ex- • change.</p>

<p>ERROR TO EAYETTE CIRCUIT.</p> <p>Case 6.</p> <p>Case stated,</p>

<p>APPEAL PROM ANDERSOíí CIR0ÜIT.</p> <p>Orp. Pet.</p> <p>Case 7.</p> <p>Oaso stated.</p>

<p>ERROR TO HENRY CIRCUIT.</p> <p>ChaNoerv,</p> <p>Case 8.</p> <p>Case stated.</p>

<p>1. In setting forth the cause of action in an ordinary petition, under the Codo of Practice, it is not sufficient barely to refer to a bond or other instrument of writing as filed, and file it with the petition; there must be a certain clear and logical presentation of tbe cause of action, and the petition should state so much of the writing as relates to the causo of action — “a statement of the facts constituting the cause of action.” Code of Practice, Sec. 104, clause 3, p. 31. The Oode of Practice, sections 171, 181, pages 35,37, requires the bond to bo filed as part of the petition, but does not require that the petition shall state that it is filed, or if filed and referred to as part of the petition, that it shall be taken to be contained in the petition.</p> <p>2. The petition ought to state the substanco of the writing, so far so is material Lo the cause of action, and also refer to it as being filed as a part of the petition, or state why it is not filed.</p> <p>3. In a suit upon an appeal bond the petition should set forth so much of the bond and condition, and so much of the decree appealed from, and make such averments as will show a breach of the condition and cause of action. If the decree was for the surrender of property, that the plaintiff was deprived of its uso <&c. If to pay costs and damages aver that the decree was affirmed, and costs and damages awarded, and what they are.</p> <p>1. In setting-forth tho causo of action in an ordinary petition, under tho Oode of Practice, il is not sufficient barely to refer to a bond or other instrument of writing as filed, and file it with the petition; there must be a certain clear and logical presentation of the cause of action, and tho petition should state so much of the writing as relates to tho cause of action —“a statement of the facts constituting tho cause of action.” Code of Practice, section 104, clause 3, page 31. Tho Code of Practice, sections 171,181, pages 35, 37, requires the bond to be filed as part of the petition, but does not require that tho petition shall state that it is filed, or if filed and referred to as part of the petition, that it shall bs taken to be contained in the petition.</p> <p>2. The petition ought to slate the substanco of tho ■writing, so far as is material to the cause of action, and also refer to it as being filed as a part of tlio petition, or state why it is nob filed.</p> <p>3. In a suit upon an appeal bond the petition should Bet forth so much of the bond and condition, and so much of Hie decree appealed from, and make such averments as will show a breach of tho condition and cause of action. If the decree was for the surrender of property, that the plaintiff was deprived of its use, ¿se., if to pay costs and damages, aver that tlie decree was affirmed, and costs and damages awarded, and what they are.</p>

<p>ERROR TO LINCOLN CIRCUIT.</p> <p>Attachment</p> <p>Case 10.</p> <p>Question stated.</p>

<p>1. Money due for land sold by husband and wife, which descended to tho wife from her father, until received by tlio husband, may bo subjected- to 'a settlement for the benefit of the wife by tlie chancellor, (Lay’s ex’or v. Brown, ¿;c., 18 B. Mon. 295;) especially since the act of 1846.</p> <p>2. Tho right of tho wife to claim a settlement out of estate descended to her is not confined to cases where the chancellor is called upou to subject such estate to the payment of the debts of tlie husband, but may be asserted by the wife by an original bill. (2 Story’s Eq., Bao. 1414, paye 866; Clancy on Rights, 471.</p> <p>8. The right of the wife to a settlement of estate descended to her cannot be defeated by the assignment of the husband. (Thomas v. Kennedy, 4 B. Mori., 235; Crooks v. Turpin, 10 B. Monroe, 244-5. If in such caso the husband does assign, even for a valuable consideration, it is subject to the equity of the wife. (2 Story’s Eq., Sec. 1412, and eases there cited.</p> <p>4. An assignee of the husband, of the choscs in action of tlie wife, for the payment of debts, is bound to make a settlement for the wife.</p> <p>5. Tlie proceeds of the bale of the wife’s land, so long us it remains in the hands of tho purchaser, constitutes a part of her estate out of which she has a right to a settlement.</p> <p>1. Money due for land sold by husband and wife, -which descended to the wife from her father, until received by the husband, may be subjected to a settlement for the benefit of the wife by the chancellor, iLay’s ex’or. v. Brown, ¿¡o., 13 B. Monroe, 295,) especially since the aet of 1846,</p> <p>2. The right of the wife to claim a settlement out of estate descended to her is not confined to eases where the chancellor is called upon to subject such estate to the payment of the debts of the husband, but may bo asserted by the wife by an original bill. (2 Story’s Eg., sec. 1414, page 866; Chancy on Rights, 471.)</p> <p>3. The right of the wife to a settlement of estate descended to her cannot be defeated by the assignment of the husband. (Thomas v. Ken nedy, 4 B. Monroe, 235; Crooks v. Turpin, 10 jB. Monroe, 244-5.) If in such caso .the husband does assign, oven for a valuable consideration, it is subject to the equity of the wife. (2 Story’s Eg., sec. 1412, and cases there cited.)</p> <p>4. An assignee of the husband, of the ohoses in action of the wife, for the payment of debts, is bound to make n settlement for the wife.</p> <p>5. Tho proceeds of tho salo of the wife’s land, so long' as it remains in tho hands of the purchaser, constitutes a part of her estate out of which she has a right to a settlement.</p>

<p>EKBOB- TO EOOKCASTLE CIECUIT.</p> <p>Soi. Pa.</p> <p>Case 12,</p> <p>Case stated.</p>

<p>ERROR TO NELSON COUNTY COURT.</p> <p>Motion.</p> <p>Case 13.'</p> <p>Case stated.</p>

<p>1. Under the Code no personal judgment can be rendered against a defendant who is constructively served with process, and who has not appeared to the action; the judgment can only be in rent and not in personam.</p> <p>.2. No order for the sale of real property, attached of an absent defendant, can be made unless an affidavit be filed that the defendant has no personal property, or not sufficient to satisfy the demands in the state known to plaintiff. (Code, section 272.) The making such order of sale without the affidavit is an error of the court, not a clerical error.</p> <p>3. That the Code of Practice, (section 446,) allowing an absent defendant, constructively served with process, to appear in the circuit court at any time within five years after the judgment and rnovo a re-trial of the action, does not preclude such defendant from reversing an erroneous judgment against him in the court at any time for errors apparent in the record. If the judgment be apparently regular but unjustly obtained, he may pursue the other course.</p> <p>4. The 441st section of Code of Practico requires, that before any judgment can be rendered upon attachment against an absent defendant, that an attorney be appointed by the court to defend for him, and bond given to the absent defendant, with surety, to restore the property. &a., before any order of sale.</p> <p>1. Under tthe Code no personal judgment can. be rendered against a defendant who is constructively served with process, and who has not appeared to the aetioji; the judgment can only ba in rem, and not in personam.</p> <p>S. No order for the sale of real property attached of an absent defendant can be made unless an affidavit be filed that the defendant has no personal property, or not sufficient to satisfy the demands in the state known to plaintiff. (Code, sec. 272.) The making such order of sale without the affidavit is an error of the court, not a clerical error.</p> <p>3. That the Code of Practice (sec. 446) allowing an absent defendant constructively served with process to appear in the circuit court at any time within five years after the judgment, and move a re-trial of the action, does not preclude such defendant from reversing an erroneous* judgment- against him in this court at any time for errors apparent in the record. If the judgment be apparently regular but unjustly obtained, he may pursue the other course.</p> <p>4. The 44iat oFp°MtL^°requires that before any judgmenfc can be attaebment111'a” gainst an ab-that ¡matfimiey be appointed by the court to defend for him, todtheUdabsent defendant with etoe^^propcrty, 4c., before any order of sale.</p>

<p>ERROR TO CALDWELL CIRCUIT.</p> <p>Case 15.</p> <p>Case stated.</p>

<p>EaSOB TO CUMBERLAND CIRCUIT.</p> <p>Chancery.</p> <p>Case 16.</p> <p>Case stated, and question for decision.</p>

<p>1. A plea to writ of error prosecuted to a decree of the oircuit court, avering in substance that the decree', sought to be reversed was rendered by consent, is invalid.</p> <p>2. It is not admissible to plead to a writ of error or apeal, in this court, the existence of matter out side of the record existing in pais, to sustain w decree which the record shows to be erroneous.</p> <p>3. If, by the violation of any_ existing agreement of the parties in pais, one party has been injured by an erroneous decree, redress must be sought in a court of original jurisdiction.</p> <p>1. A plea to writ of error prosecuted to a decree of the circuit court, avering in substance that the decree sought to bo reversed was rendered by consent, is invalid.</p> <p>2. It is not admissible to plead to a writ' of error or appeal, in this court, the existence of matter outside of the record existing in pais, to sustain a decree which the record shows to be erroneous.</p> <p>3. If, by the violation of any existing agreement of the parties in pais, one , party has been injured by an erroneous decree, redress must, be sought in a court of original jurisdiction.</p>

<p>APPEAL PROM HARRISON CIRCUIT.</p> <p>Ord. Pet.</p> <p>Case 18.</p> <p>Case stated.</p>

<p>ERROR TO MONTGOMERY CIRCUIT.</p> <p>Orb. Pet.</p> <p>Case 19.</p> <p>Case stated.</p>

<p>1. When a reference is made to several arbitrators all must act, and all act together. If they hear evidence all must hear it and not part, and they report to the others — they must consult jointly; it is the joint determination of all to which the reference is made, and all should sign in presence of each other. (Russell on Arbitration, 210.)</p> <p>2. An award based upon admissions by one of the parties, which are material in mating the award, if not made in presence of all the arbitrators, will render the award invalid.' (Blanton v. Gale, 6 B. Mon., 264.)</p> <p>1. When a reference is made to several arbitrators, all must act, and all act together. If they hear evidence, all must hear it, and not part, and they report to the others — they must consult jointly; it is the joint determination of all to which the reference is made, and all should sign ia presence of each other. (Russell on Arbitration, 210.)</p> <p>2. An award based upon admissions by one of tbe parties, which are material in making the avard, if not made in presence of all the arbitrators, will render the award invalid. Blanton v. Gale, 6 B. Monroe, 2G4.</p>

<p>1. A bequest to a slave is void, (13 B. Monroe, 191,) unless the effect be to give freedom to the slave.</p> <p>2. A bequest to a slave in Kentucky does not have the effect, constructively, to give freedom to a slave, especially when a contrary effect is apparent from the whole tenor of the will. The analogy between villenage in England, and slavery in Kentucky is not recognized.</p> <p>I. X bequest to a slave is void, (13 B, Monroe, 191,) unless the effect be to give freedom to the slave.</p> <p>2. Abequosfc to a slave in Kentucky does not have the effect, constructively, to give freedom to a slave, especially when a contrary effect is apparent from the whole tenor of the will. The analogy between villenage in England, and slavery in Kentucky, is not recognized</p>

<p>1. Where, by anti-nuptial contract it is agreed that the wife shall hold her property, (land and slaves) to her separate use, to disposo of as she please during the coverture, by deed or will, and the wife die without making any disposition thereof, the agreement is at an end, and the husband has the same right therein as if tho agreement had not existed. (12 B. Mon., 391; Cox v. Coleman, 13 B. Mon.)</p> <p>2. The statute of 1846, session acts 42, has no other effect upon thé rights of the husbandjn slaves of the wife than to limit his estate to that of an estate for life, whether there be issue of marriage or not.</p> <p>3. The fact that a husband, upon the death of his wife, claimed the the absolute estate in negroes when he had only a life «¡state, created no forfeiture if the estate which he rightfully might claim, unless in ease of removal of slaves oat of the state by tenants for life.</p> <p>1. Where, by anti n uptial sontvacfc, it is agreed that the wife shall hold her property, (land and slaves,) to her separate use, to dispose of as she pleases during the cover-' ture, by deed or will, and the wife dies without making any disposition thereof, the agreement is at an end, and the husband has the same right therein as if the agreement had not existed. (12 B. Monroe, 391; Cox. v. Coleman, 13 B. Monroe.)</p> <p>2, The statute of 1846, Ses. Acts, 42, has no other effect upon the rights of the husband, in slayes of the •wife than to limit his estate to that of an estate for life, whether there be issue of the marriage or not.</p> <p>3. The fact that a husband, upon the death of his wife, claimed the absolute estate in negroes -when he had only a life estate, created no forfeiture of the estate -which he rightfully might claim, unless in case of removal of slaves out of the state by tenants for life,</p>

<p>APPEAL FROM THE LOUISVILLE CHANCERY COURT.</p> <p>Case 23.</p>

<p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>Case 34.</p> <p>case stated,</p>

<p>ERROR TO MERCER CIRCUIT.</p> <p>Pet, Eq.</p> <p>Case 25.</p> <p>Case stated.</p>

<p>ERROR TO MERCER CIRCUIT.</p> <p>Ord. Pet.</p> <p>Case 26.</p> <p>Cass stated.</p>

<p>ERROR TO MONROE CIRCUIT.</p> <p>Pet. Eq.</p> <p>Case 27.</p> <p>Case stated.</p>

<p>ERROR TO MERCER CIRCUIT.</p> <p>Okd. Pet.</p> <p>Case 28.</p> <p>Case stated.</p>

<p>APPEAL FROM NELSON CIRCUIT.</p> <p>ORD.PET.</p> <p>Case 29.</p> <p>Case staled.</p>

<p>1. To show thu right of a vendor of goods sold, to stop them inira»sitie, it is sufficient to show with reasonable certainty, that is, a probability that tho vendee is embarrassed, and not able to make full or general payment of his debts. The admissions of vendee , are sufficient to authorize the vendor to stop goods in transitu.</p> <p>2. The order of a vendee for tho disposition and sale of goods in transitu, before reaching the place of destination, does not effect the right of the vendor to stop such as are not sold, which continues until actually or constructively in possession of vendee.</p> <p>3. Where only a part of a stock of goods has been received, the right of stoppage in transitu as to the remainder is not impaired. Buckley v. Furness, 17 Wendell, 504.</p> <p>1. To show the right of a vendor of goods sold, to stop them in transitu, it is sufficient to show with reasonable certainty, that is, a probability that the vendee is embarrassed, aud not able to mate full or general payment of his debts. The admissions of vendee are sufficient to authorize the vendors to stop goods in transitu.</p> <p>% ti10 order deposition and sale of ^ °beforereaeliPlace does not affect the right of the vendor to stop snob as are not continues Vntil actually or con-possession'' of Teri¿lee-</p> <p>3. Where only a part of a stock of goods has been received, the right of stoppage in transitu as to the remainder is not impaired, (Buckley v, Furness, 17 Wendell, 504.)</p>

<p>ERROR TO THE MASON CIRCUIT.</p> <p>Chaxokrt</p> <p>Case 31.</p> <p>Case stated.</p>

<p>1. Where the court has no jurisdiction of the subject matter of the action, the plaintiff’s petition may bo dismissed on that ground; but where the couu ban jurisdiction, either by ordinary or equitable proceeding, an error in the form of proceeding adopted, does not authorize a dismissal of the action, but merely n traus. fev of the action to the proper docket. Code of Vracitcc sec. 8.</p> <p>2, Where it is agreed 'hat money received, or to bo received, is to go in satisfaction of a particular demand, the chancellor has tka power to enforce the contract by decreeing the set-ola</p> <p>1. Wlic-re t-lio court has po jurisdiction of till) subject matter of the action, the plaintiffs petition may bo dismissed on that ground; but where the court lias jurisdiction either by 'ordinary or equitable proceeding, an error in tiie form of proceeding adopted, does not: authorize a dismissal of tho action, but merely a transfer of tile action to the proper docket. Code of Practice, sec. 6.</p> <p>2. Where it is agreed that money received, of to be received, is to go in satisfaction of a particular demand, the chancellor has the power to enforce the contract by decreeing the set-off.</p>

<p>If a note be made and signed by sureties, to enable the principal to raise money of a bank, and made payable to a bank or order, and not discounted, yet, if an individual advance the money upon the note, the sureties will be bound to the holder of the note for its payment.</p> <p>If a noto bo made and signto_ enablo the raiseC'innuey of a bank, ami toa baXororder, and not discounted, vet if an indi viciamoney upon the noto tbu surebolmd to the holder of the ment.</p>

<p>APPEAL FROM FRANKLIN CIRCUIT.</p> <p>Case 34.</p> <p>Case stated.</p>

<p>ERROR TO MEADE CIRCUIT.</p> <p>Sci. Pa.</p> <p>Case 35.</p> <p>Case stated.</p>

<p>1. In a case of parol contract for land, if it be agreed by parol tbat the Vendee is to forfeit the contract, and give up the land in case he fail to pay punctually, yet, if after the day of payment has elapsed the vendor insist on payment, and offer compliance and claim no forfeiture but suffer vendee,; to improve the land, it will bo inferred that the forfeiture is waived, and though vendor may have the privilege of fulfilling the parol contract by conveying, yet, if he refuse to convey, equity will require that he pay for the improvements.</p> <p>2. In case of refusal of vendor, by parol, of land, to fulfill his contract, he should be allowed interest on the price agreed upon for the land, and for waste done, and required to pay for improvements, and so the account settled.</p> <p>1, In a «asa of parol contract for land, if it be agreed by parol that the vendee is to forfeit tbe contract, and give up the land in ease he fail to pay punctually, yet, if after the day of payment has elapsed the vendor insist on payment-, and offer compliance and claim no forfeiture, but suffer vendee to improve the land, it will be inferred that the forfeiture is waived, and though vendor may have the privilege of fulfilling the parol contract by conveying, yet, if he refuse to convey, equity will require that ho pay for the improvements,</p> <p>2. In ease of refusal of vendor, by parol, of lands, to fulfill his contract, he should be allowed interest ou the price agreed upon for the lands, and for waste done, and required to pay lor improvement's, and so the account settled.</p>

<p>APPEAL FROM JEFFERSON CIRCUIT.</p> <p>Case 37.</p> <p>Case stated.</p>

<p>1. If the husband fail to reduce to possession a personal right whichA to the wife before coverture, or'appvopriate such right, belonged ' it sur-vives to the -wife.</p> <p>St. If a wife be entitled, as survivor, to a right which n first husband might have reduced to possession, and marry a seeond husband and die, he, a3 survivor, administrator, or distributee, may claim such right to the exclusion of the children of the wife.</p> <p>3. Money conveyed to a trustee, to be held for the benefit of two, and the survivor and one dies, the trust Í3 not thereby terminated. If the surviving cestui que trust, a female, marry, and tho fund bo not reduced to possession, it survives to tho wife in case of the death of tho husband; if she marry again and die, the surviving husband, aa administrator, of the wife, and net her children, is exclusively entitled to the fund,</p> <p>l- If tho hnsduce to'posses-to tha wife fe^appropriate such right, it to tiie</p> <p>s. If a wife g^vor^fe ^ ¿ might have redyced to possession, and marry » second husgurviror,’ a <1 mi nistrator, or distributee, may claim such right to the exclusion of the children of tha wife.</p> <p>3. Money conveyed to a trustee, to be held for tha benefit of two, and tbe survivor and one dies, tho trust is not thereby terminated. If the surviving cestui que trust, a female, marry, and the fund be not reduced to possession, it survives to tho wife in case of the death of the husband; if she marry again & dip, the surviving husband,aa administrator of the wife, and not her children, is exclusively entitled to the fund.</p>

<p>ERROR TO NELSON CICUIT</p> <p>Case 1.</p>

<p>ERROR TO WHITLEY CIRCUIT.</p> <p>Case 2.</p> <p>Case stated.</p>

<p>1. The county judge had not power alone, on the 10th day of September, 1852, to take a recognizance in a criminal caso; such power, which was conferred by the act of the 11th March, 1851, which was taken away by the Revised Statutes — See 17tit art.,page 232 — by which it is provided that the county judge shall have all the powers of,a justice, in penal and criminal proceedings, and in a court of inquiry in such proceedings.</p> <p>2. The county judge has the same power as a justice of t-Iio peace in courts of inquiry, and in penal and criminal cases, and taking recognizances, but no power to act alone, nor can a single justice.</p> <p>1. The county judge had not power alone, on tlio 10th day of September, 1852, to take a recognizance in a criminal ease; such power, which was conferred by the act of the 11th March, 1851, was taken away by the Revised Statutes — see 17 th art., page 232— by which it is provided that "the county judge shallhave all the powers of a justice, iu penal and criminal proceedings, and in a court of inquiry in such proceedings.”</p> <p>2. The county judge has the same powers as a justice of the peace in courts of inquiry, and in penal and criminal_ cases, and taking recognizances, but no power to act alone, nor ean a single justice.</p>

<p>ERROR TO ANDERSON CIRCUIT.</p> <p>Case 4.</p>

<p>The 179fft section of the Code if Practice, properly construed, does not authorize the court to take, as true, allegations of value or amount of damage made in the plaintiffs petition in ordinary cases, though not denied by the answer, and though there be no answer put into the petition,</p> <p>Ü. The plaintiff alleged the taking and converting a quantity of coal by defendant, the property of plaintiff, of a certain value&emdash; defendant failed to answer. Held, that other proof of the value of the coal was necessary to authorize a judgment for the plain-tiff.</p> <p>3. The failure to appear to a suit by ordinary petition is a waiver of the right to a jury trial. Code Practice, section 373.</p> <p>d. Where proof of a fact, or the assessment of damages, is ncoessary to enable the court to pronounce judgment upon a failure to an-swer, the record should show that there had been a trial by the court.</p> <p>1. Tiie 179th section of the Code of Practice, properly construed, does not authorize the court to take, as true, allegations of value or amount of damage made in the plaintiff’s petition in ordinary cases; though not denied by the answer, and though there be no answer put in to the petition.</p> <p>2. The plaintiff alleged the taking and converting a quantity of coal by defendant, the property of plaintiff, of a certain value— defendant failed to answer. Held, that other proof of the value of the coal was necessary to authorize a judgment for the plaintiff.</p> <p>3. The failure to appear to a suit by ordinary petition is a waiver of the right to a jury trial. (Code of Practice, section 373.)</p> <p>4. Where proof of a fact, or the assessment of damages, is necessary to enable the court to pronounce judg ment upon a failure to answer, the record should show that there had been a trial by the court.</p>

<p>HEROE TO EST1LL CIRCUIT.</p> <p>Case 6.</p>

<p>1. Upon a decree in bankruptcy being rendered, all the rights, inter ests, and choses in action of the bankrupt passes to the assignee.</p> <p>2. Where, by the terms of a mortgage the mortgagee has a right to retain the possession of the mortgaged property, the assignee in bankruptcy cannot take it, until the mortgaged debts are extinguished.</p> <p>3. An assignee in bankruptcy, who comes into the state courts by answer and cross-bill, and submits his rights as assignee to be heard and adjudicated, is estopped to question the jurisdiction in the court of appeals.</p> <p>4. The eimút eotirfc, on dismissing a bill for want of the proper parties, should dismiss without prejudice to another suit.</p> <p>Í. TTponadeereo in bankruptcy being rendered, ' all the rights, interests and choses in action of the bankrupt passes to the assignee.</p> <p>2. Where, hy the terms of a mortgage the mortgagee has a right to retain tho possession of the mortgaged property, the assignee in b ankruptcy cannot take it, until the mortgage debts are extinguished.</p> <p>3. An assign' co in bankrupt' cy, -who comes into the state courts by answer and cross - bill, and submits his rights as assignee to be heard and adjudicated, is estopped to question the jurisdiction of the court.</p> <p>■ 4. The circuit bill for want of the should dismiss Jico'to^anotíi»! suit.</p>

<p>1. A verbal antenuptial contract is within the provisions of the statute of frauds of 1796, and the 1st see., chap. 22, of the Revised Statutes, page 192, and no suit at law or in. chancery can be maintained upon such contract.</p> <p>2. By the statute of 1798, see. 34, Stat. Law, 14-77, slaves belonging to the wife at the marriage vest absolutely m the husband.j</p> <p>3. A husband who became, by marriage, entitled to slaves of his wife made a conditional sale thereof to one having previously by another instrument, purported to ratify and confirm a will made by his wife, giving the slaves to her brother. Held, that the first instrument is ineffectual to divest a previous right in the husband of any right acquired by his marriage, though in the first instrument he acknowledged the existence of an antenuptial agreement to give the wife the right to dispose of. the slaves, especially during the life of the husband.</p> <p>4. Such a paper could not be considered as of greater force than a will, subject to revocation at pleasure.</p> <p>1. Av~i'bat an t~nnptia1. con tract is within the provisions of the statute of frauds of 1796, and the 1st sec., 22d chapter, of the Kev. Stat., page 192, and no suit at law or in chancery can be maintained upon such contract.</p> <p>2. By the statute of 1798, sec. 34, Statute L aw, 147 7, slaves belonging to the wife at the marriage vest absolutely in the husband.</p> <p>3. A husband who became, by marriage, entitled to slaves ofliiswifemaclo a conditional sale thereof to ono having previously, by another ' instrument, purported to ratify and confirm a -will made by his wife, giving the slaves to her brother. Hold, that the first instrument is ineffectual to divest a previous right in the husband of any right acquired by his marriage, though in the first instrument he acknowledged the existence of an antenuptial agreementto give the wife the right to dispose of the ülaves, especially during the life of the husband.</p> <p>4. Such a paper could not be considered? as of greater force than a will, subject to revocation at pleasure.</p>

<p>ERROR TO FRANKLIN CIRCUIT</p> <p>Motion.</p> <p>Case 9.</p> <p>Case stated.</p>

<p>So soon as a bargain for the sale of personal property is struct, the contract becomes absolute, -without payment or delivery, and the property is at the risk of the purchaser. If part of the price bo paid when the bargain is struck, and no express stipulation as to the time of payment of the remainder, it is due upon delivery; if the seller is prevented from the delivery by the act of God, the price must nevertheless be paid.</p> <p>So soon as a bargain for tbo sale of personal property iu struck, the contract becomes absolute, without payment or delivery, and the property is at the risk of the purchaser. If part of the price be paid when the bargain is struck, and no express stipulation as to the time of payment of the remainder, it is due upon de • lively; if the seller is preven, ted from the delivery by the act of God, the price must nevertheless be paid.</p>

<p>Case 11.</p> <p>ERROR TO ESTILL CIRCUIT.</p>

<p>EEKOK TO MORGAN CÍKOÜIT.</p> <p>Case 12.</p> <p>Case stated,</p>

<p>1. Swapping horses on the Sabbath day is a violation of the statute, (,Revised Statutes, page 265,) and no contract arising out of it is enforceable.</p> <p>2. Where the statute has in view the protection of public morals, a contract arising out of its infringement cannot be supported, though the statute does not expressly declare the contract unlawful, yet the annexing ^penalty implies a prohibition.</p> <p>1. Swapping horses on the Sabbath day is a violation of the statute, (Revised Matutes, paye 2(>5,) and no contract arising out of it is onforcible. .</p> <p>2. Where a statute has in view the protection of public morals, a contract arising out of its infringement cannot bo supported. Though the statute does not expressly declare the contract unlawful, yet the annexing a penalty implies a prohibition.</p>

<p>APPEAL PROM NICHOLAS CIRCUIT.</p> <p>Case 14.</p> <p>John R. Campbell applied to the Nicholas county court for the appointment of viewers to view a way for a new road to be opened; viewers were accordingly appointed, who performed that duty, made their report to court, and upon hearing, the county court established the proposed road; an appeal was taken by B. M. Wood, fhrough whose land the road was to pass, and the circuit court affirmed the order of the county coui't; and from the judgment of the circuit court Wood has appealed to this court.</p> <p>Argued — 1. That the order of the county court appointing viewers was defective. (2 Marshall, 502; 5 J. J. Marshall, 220.)</p> <p>2. It does not sufficiently appear that the viewers wex*e sworn. (I Bibb, 514; 1 Marshall, 453; 1 Littell,' 196; 1 Monroe, 57.)</p> <p>3. That the report of the viewers is defective, in not fully responding to the requisitions of the order appointing them; but is defective in not describing the rout of the proposed road “by metes and bounds, courses and distances.” (5 /. /. Marshall, 280; 2 Marshall, 502.)</p> <p>4. The i’eport is defective in failing to describe, with sufficient certainty, the ground over which it is proposed the x*oad shall run.</p> <p>5. The report does not set forth the inconveniences nor conveniences to the public, or the inconveniences to the persons thx-ough whose land the road will pass. (2 Bibb, 581; (3 /. /. Marshall, 631; 3 B. Monroe, 302; 6 B. Monroe, 118.)</p> <p>6. The x’eport does not state what additional fencing will be required, nor how much land will be taken by the road.</p> <p>7. The damages assessed by the jury are grossly inadequate.</p> <p>8. The court below erred in refusing to take cognizance of the question of damages.</p> <p>9. That the circuit coux’t ex*red in affirming the decision of the county court.</p> <p>10. That public convenience did not require the opening of the proposed road.</p> <p>Insist, in answer to the last objection of appellant’s counsel, that public convenience calls loudly for the opening of the proposed road, and. discuss that question upon the proof.</p> <p>As to the second objection it was argued, that the report does sufficiently describe the grounds over which the road is proposed to pass; that the point of beginning and ending are both given, being only about two hundred and forty rods in length; that neither party required the attendance of the surveyor, as they might have done to lay down a diagram. (See Revised Statutes, 581.)</p> <p>The reviewers state the distance of the road to be only two hundred and forty poles, over ground so level that the eye can scan it from end to end. They state the course from the beginning, as well as the distance with the metes and bounds, both natural and artificial, on the entire rout. This is all that is necessary in a case like this, where the metes and bounds, courses and distances, can be described by gate, spring, stable, stone, fence, bars, and the track of an old road to the end, at a pair of bars opposite a lane. The road passing through cleared land is sufficiently described by the objects referred to in the report; and the weight of the evidence is conclusive of the pro - priety of opening the road.</p> <p>Case stated.</p>

Case 15. ERROR TO MASON CIRCUIT. This case is fully presented by the following facts agreed by the parties: “That the plaintiff, How, travels seven and a quarter miles on the turnpike, and passes through two toll-gates, at which he pays full tolls; and that he has paid the sum of $25 over what would have been the tolls if proportioned to the distance traveled.

<p>ERROR. TO HART CIRCUIT.</p> <p>Case 16,</p> <p>Samuel Finley, of Hart county, made his will in 1332, which was proved and admitted to record in the same year, by which he directed, first, the payment of all hi3 debts, and disposed of the whole of the estate by specific provisions. In the seventh clause of the will, (at page 9,) a devise is made to two sons, Hardin and Preston Finley, of three hundred and fifty acres of land, four negro men, wagon, and farming utensils of every kind, two mares, and his entire stock of hogs; to which is appended these words: “It is my will and desire that my sons, Preston and Hardin Finley, out of the bequests above named to them made, purchase for my grandchildren, Preston Sims and Addison Sims, six hundred acres of good arable land, with a sufficiency of timber to support it, either in one, two, or more tracts, as my sons may think best for the children, in some good part of the state of Illinois. It is my will and desire that they collect the sums due to my said grandchildren, from the estate of their father, and that they have the use of that in making the purchase of the land aforesaid. It is my will and desire that my sons, Hardin and Preston, at their own expense, send the said Preston and Addison Sims to school until they shall have received a good English education, and that at the age of twenty-one years, each of said boys receive of them a good horse, bridle and saddle.”</p> <p>Hardin and Preston Finley were appointed executors of the will, and qualified and gave bond.</p> <p>In 1839 Hardin and Preston Finley sold and conveyed the tract of land, devised to them by their father, to Henry P. Lively, for the consideration of $1,200, and put him in possession of it. The negroes they sold to others, some of whom are made defendants to this suit. In January, 1844, Preston Sims having arrived at the age of twenty-one years, filed this bill in chancery in the Hart circuit court against Hardin and Preston Finley, the two executors and devisees, and their sureties in their executorial bond, and against Lively, the purchaser of the land, and against some of those who had purchased some of the four negro men, in which is alleged the failure of the devisees and executors, H. and P. Finley, to give him the education directed by the will of his grand-father, to give the horse, saddle, and bridle, and to buy the six hundred acres of land in Illinois; and making Addison Sims, who was still a minor, also a defendant, as well as the other devisees of Samuel Finley; and asking the court to subject the three hundred and fifty acres of land in the possession of Lively, the purchaser, to the payment of the value of the land which was to be purchased in Illinois, the education, &c., which is alleged to have been withheld, and for general relief.</p> <p>Addison Sims, on arriving at full age, filed his answer, making it a cross-bill, and uniting with Preston, prays for the same relief. Lively answered, denying notice, and controverting the relief sought. The case progressed to a final hearing in 1852, when the circuit judge dismissed the hill of Preston, and cross-bill of Addison, as to all the defendants except Hardin and Preston, the executors and devisees, and decreed against them the value of the land which was to he purchased in Illinois.</p> <p>Argued — 1. That the estate devised to Preston and Hardin Finley is charged with the legacies to Preston and Addison Sims. The language of the testator is, that “it is my will and desire that my sons, Preston Finley and Hardin Finley, out of the bequest above made to them, purchase for my grandchildren, <fyc. Gardner v. Gardner, 3 Mason's G. C. Rep., 215; Jar-man on Wills, side page, 552, and authorities there cited, is referred to for the cases in which the purchas' er is exonerated from seeing to the application of the purchase money; from all which the rule is laid down, “that a general direction to pay debts, no matter in what part of the will contained, operates to throw them upon the real estate,” subject only to two exceptions — side page, 519: — 1. Where the testator, after directing his debts to be paid, generally, has provided a specific fund for that purpose — side page, 521, 2. Where the debts are directed to be paid by the executor, in which case, unless land be devised to them, it will be presumed that payment is to be made exclusively out of funds which, by law, go to the executor for that purpose — side page, 523.</p> <p>2. It is no objection, which creates a lien or charge upon land, that the executor is also personally liable for the debt or legacy — Mason's Rep., 209 to 214. The rule is the same whether the land itself is charged, or the rents and profits — Jarman on Wills, side page, 534. The foregoing principles are relied upon as applicable fo this. case.</p> <p>3. It is urged that the lien did exist by the will, and! the only question remaining is, did it follow the land into the possession of Lively, the purchaser?</p> <p>By the will the whole estate is charged with the payment of debts; it is presumed that all are long since paid — no intimation in the record to the contra - ry. Lively takes the ground that a sale of the land, was necessary to pay debts, and that it was necessary to do so to comply with the requisitions of the will in regard to the complainants, thereby admitting that he was apprised of the fact that the executors had not complied with the trust.</p> <p>It is admitted that where the charge to pay debts is general and not specific; that the purchaser, who is not effected by fraud or notice of the debts, is not bound to see to the application of the puschase money to the objects of the will; but the converse of the prop - osition is equally true, that when the creditors are named, or when the debts have been scheduled, and when the legacy is specific, that it becomes the duty of the purchaser to see to the application of the pur - chase money; and upon the purchase money being misapplied by the executor or trustee, the land is bound — Spencdf’s Equitable Jurisdiction, vol. 2, page 880 — where it is said: “It has already been noticed that in a court of chancery when a person purchases land bound by a trust, with notice of the trust, the land, generally speaking, will still be bound in the hands of the purchaser, and it has been considered in these cases that, as the trust is not only to sell, but to sell for the purpose of paying the charges, the purchaser ought, when he can, to see that the trust is performed in all its parts.” Again, on page 885, same book, it is said: “When the trust is a charge for the payment of some specific debts only, or for the payment of legacies only, or of both specific debts and legacies, then the debts, as well as the legacies, arc specific charges on the land, and the purchaser has the means of ascertaining to what particular charges his money is to be applied, and the persons from whom he may obtain a discharge are pointed out.” Again, page 388, same book: “Where the estate is charged with legacies the purchaser is clearly liable to see to the application of the purchase money.” In the case of Gardner v, Gardner, supra, Justice Story says: “As to this the settled distinction is, that if a trust is created for specific or scheduled debts, the purchaser is bound to see to the application of the purchase money.” Again, page 219, he says: “Looking to the principle upon which the general doctrine is founded, I am not able to perceive any difference between a direct trust to pay debts, anil a charge upon land for the same purpose.” Again, page 220, he says: <:No authority has been cited which establishes any distinction between the case of a trust and a charge as to seeing to the application of the purchase money. I cannot but think that the current of authority, and the analogys of the law, ought to lead us to the rejection of any such distinction, as unsatisfactory in principle, and inconvenient in practice.”</p> <p>4. Actual notice is only necessary when the attempt is made to attach responsibilty to a purchaser in those cases, where the object of tl#e trust, or subjects of it, are so indefinite as to relieve the purchaser from, the burthen of seeing to the application of the purchase money; but where actual notice supplies the want of certainty and defiteness in the will itself, the responsibility attaches as fully as where the subjects and objects of the trust are specifically pointed out; actual notice is also important, where the executor or trustee fraudulently applies the proceeds of the sale.</p> <p>In this case, the persons to whom the duty was to be performed were pointed out, as well as the duty to be performed, by the will. Whether the land had been bought in Illinois might have been known by the title deeds, and whether the grandsons were educated, as required, by inquiry.</p> <p>The conveyance to Lively shows the derivation of title by his vendors. The land is devised to Preston and Hardin Finley, charged with the legacy to the complainants, or a devise to them, subject to a trust in favor of the complainants. In either case, it amounts to the same thing — a lien in equity has been created, from which it cannot be relieved until the trust is complied with.</p> <p>5. It is insisted that the sureties of the executors are bound. It has been held by this court in the case of Clay and Craig v. Hart, 7 Dana, 10, that when lands are devised to executors to be sold, and the proceeds to be applied to the use of the legatees, that the money arising from the sale is to be considered a legacy in the hands of the executors, and for which the sureties are responsible, and that, in such case, the legatees may elect to take the land instead of the money. Gedges v. Western Bap. Theo. Inst., 13 B. Monroe, 530.</p> <p>A reversal is asked.</p> <p>1. We deny that this case belongs to that class of cases where the purchaser is bound to see to the application of the purchase money. The devise is to Preston and H&rdin Finley, in fee, which confers a perfect right to sell, and they take as devisees not as executors, and as devisees they have fall power to give full and complete discharges for the purchase money. See 3 Sug., 103, top page; Mylne 4" Kean, 624; 4 Vez., Jr., 99; 16 lb., 156; Larue’s heirs v. Larue’s ex’or, 3 J. J. Marshall, 160.</p> <p>In the case of Smith v. Guyon, 1 Bro. Ch. Cases, 86, side page, the doctrine is thus stated: “When land is directed by will to be sold generally, and the money to be a part of the personal estate, the purchaser is not bound to see to the application of the money, but it is otherwise if it is to be paid in discharge of specified or scheduled debts, or if the estate is sold under the direction of the court, and the money is not paid into court.” Ithel v. Bean, 1 Vez., 215; Gardner v. Gardner, 3 Masón, 21S; Andrewsv. Sparhawlc, 3 Pick., 293; Culpepper v. Austin, 2 Ch. Ca., 115, 251; Spaulding v. Shalmer,2 Tern., 301. From which it appears that even where the debts are particularized a purchaser shall not be bound to enter into the account if more of the estate is sold than is necessary. The foregoing cases being cases where there were devises to pay debts, either generally or scheduled, are not exactly like the case under consideration. The case under consideration is a case of a devise with other devises, charged with the payment of all the debts of the testator, and a specific duty imposed upon the devisees of the land of buying land in Illinois with the property devised, aided by another fund, which is not defined.</p> <p>In the case of Jebbv. Abbet, 1 Bro. Chan. Cases, 186, n, 2' Ed., cited in note Coke Litt. 290, 14 Ed., the Lord Chancellor said: “Where debts and legacies are charged on land, the purchaser will hold, free from the claim, of legatees ; for not being bound to .see to the discharge of debts, he cannot be bound to see to the discharge of legacies which are not to be paid till after the debts. Wormly v. Wormly, 8 Wheat. 421, 442-3; 16 Vez., 156; Bug. on Vend.}; chap. 11, sec. 1, page 517, 535, 9 Ed; 1 Cruise's Dig., 542; 1 Vez., 173; 3 Monroe, 512.</p> <p>Judge Story says in Wormly v. Wormly, supra, “there is much reason in the doctrine that when the trust is defined in its object, but the purchase money is to be re-invested upon trusts which require time and discretion, or the acts of sale and re-investment, are manifestly contemplated to be at a distance from each other, the purchaser will not be bound to look to the application of the purchase money — see Cond. Rep., 480.</p> <p>This will directs the payment of all the testator’s debts; it does not appear that any part of the estate was undevised. The executors were to pay the debts, and out of the devises to them to buy lands in Illinois for the grandsons, and to school them “at their own expense.” They were to draw to their aid the money due to the grandsons from their father’s estate. The amount of this fund no where appears — it cannot be presumed to have been in the knowledge of Lively, the purchaser of the land; the devisees could not know themselves without a settlement of that estate. Was it necessary that the purchaser should, or could he call for a settlement of the estate before he could safely pay for the land ? It is supposed not.</p> <p>2. The property devised to Preston and Hardin Finley consisted of land, slaves, wagons, horses, &c. The executors had, as devisees, full power over the whole property devised to them so soon as the will was proved; they thenceforth held that devised to them as devisees, not as executors; and the sureties of the executors are in no way responsible for the action of the devisees, though they be executors also.</p> <p>If the devises made to the two sons, Preston and Hardin, had been to third persons, charged as it was, it would have been the duty of the executors to deliver it over; it being to them they are presumed to take it as devisees, not as executors. In the case of Clay Sf Ctaig v. Hart, 7 Dana, 11, 12, it is said, that when a discretionary power is given to an executor to sell, which he exercises, the sureties in his bond, as executor, with the condition prescribed by the statute, are not responsible for his disposition of the proceeds. The proceeds of land thus sold does not become a legacy; he holds the proceeds as trustee, not as executor ; the condition of the bond is to “pay all the legacies.” The sureties of the executor may be bound for the debts and legacies if there be assets, but not to pay charges upon devises though they be the devisees.</p> <p>We insist that the purchaser was not bound to see to the application of the purchase money to the purchase of lands in Illinois, or to the education of the complainants; nor are the sureties of the executors bound for the performance of the duties imposed by the will upon Preston and Hardin Finley, as devisees, and that the case, on these points, should be affirmed.</p> <p>The will of Samuel Finley conveyed to Hardin and Preston Finley, unconditionally, a clear and perfect title to the tract of land, with right of immediate sale. This is manifest — 1. From the terms of the devise, considering it separately, and without reference to any other part of the will; nothing like a condition is expressed or inferable from its terms. 2. This is more apparent from the proximity7 of this devise to others in- the will, and the contrast between them. Take for example the devise to Mrs. Hobgood, of two negroes, which he bequeaths to his daughter, “upon her or her husband paying to his daughter, Virginia Wyatt, flOO, and to his daughter, Caroline Finley, $100,” her title is to be complete when these sums are paid, and not until then.. Again, in the 7th item, the testator gives to his sons, Hardin and Preston, “the chestnut sorrel mare upon their paying John Wyatt fifteen dollars.” The conclusion is, that the bequests of the negroes to Mrs. Hobgood, and the sorrel mare to the Finleys, were intended to be, and in fact were bequests upon condition; whereas, in the devise of the land and slaves, and all other property except the mare, the testator intended to devise, and did devise it absolutely, vesting in them a clear right to sell and convey immediately, and as they might see fit.</p> <p>Hardin and Preston Finley did sell and convey to Lively, and we deny that in such case the purchaser is bound to see to the application of the purchase money, or that the land in his hands is answerable to the plaintiff in error for any failure on the part of the Finleys to comply with the directions of the will for their benefit.</p> <p>We think it clear, from the terms of the will, that it was not the intention of the testator to charge the land, in the hands of an innocent purchaser, with any such trust, and we suggest the following reasons: 1. If there was a trust we think we have shown that the Finleys had authority to sell; we take the position that even when there is a trust, “it must be of such a nature that the purchaser would reasonably be expected to see to the application of the purchase money. Sugden on Vend., 2 ml., 36.</p> <p>It is not to be expected that a purchaser would follow the devisees, or accompany them to the state of Illinois; accompany them in their researches for land, and attend to its purchase “in one or two tracts,” and “plenty of timber to support it,” such an expectation is unreasonable. The grandsons, the complainants, were young — seven and nine years old- ■ their education, &c., was to be given, &c. These things show the unreasonableness of the application of the principle to this case.</p> <p>Again, if the trust is general or undefined, or the nature of it requires that the money should remain in the hands of the trustee for a time, for any other purpose, or is subject to any unliquidated deduction in his behalf, the purchaser is not bound to see to the application of it. 1 Greenleaf’s Cruise on Heal Property, side page 455-6, top page 424-5.</p> <p>This trust required the money to remain in the hands of the trustee. The trust could not be speedily executed — its very nature required time for its execution in all its parts. And the money to be appropriated in lands was to be subject to a deduction of the amount coming to the grandsons from their fath er’s estate.</p> <p>3. Another principle relied upon is, that payment to the trustees was a sufficient payment, as it is when money is to be paid to third persons, but to be applied upon trusts which require time and discretion, as to lay out money in estates, &c. 2 Sugden on Vend., 39; 2 Story’s Eg., page 538, sec. 1134; Luring v. Peyton, 2 Desausure, 375; Wormly v. Wormly, 8 Wheat. 421.</p> <p>Where the time of sale has arrived, and the persons entitled to the money are infants or unborn, the purchaser is not bound to see to the application of the purchase money, because he would otherwise be implicated in a trust which might be of long duration. 2 Sugden on Vend., 39, and authorities there cited.</p> <p>The fund necessary to be appled to the purchase of the Illinois lands was to be, what the fund coming to the grandsons of their father’s estate might fall short of paying for • the quantity of land to be purchased, that fund was uncertain. See Sugden on Vend, vol. 2, chap. 11, sec. 1.</p> <p>The force of the doctrine of holding a purchaser bound to look to the application of the purchase money has been very much weakened in the United States — see Cruise on Real Property, vol. l,page 424-5 —except in cases of fraud between trustee and purchaser; here there is no allegation of fraud. The doctrine as it now exists in this country will be found to rest upon these cases. Potter v. Gardner, 12 Wheat. 498, 502; 3 Mason, 308; Andrews v. Sparhawk, 3 Pick. 393-401.</p> <p>The old doctrines relied upon by plaintiffs are exploded.</p> <p>The legislature have recently declared, in the form of a statute, only what before in spirit and in fact was the law of the land. See Revised Statutes, chap. 106, on Wills, sec. 23, page 697,</p> <p>We expect an affirmance.</p>

Case 17. In October, 1849, James M. Bryant, Archibald Bryant, and Benjamin Proctor, entered into the following agreement: “Article of agreement between James M. Bryant, Archibald Bryant, and Benjamin Proctor.

Chasowt Case 10- ERROR TO THE MERCER CIRCUIT. This bill was filed in the Mercer circuit court by the widow and only child and heir at law of Cyrus Jone.3, deceased, to set aside and vacate a paper purporting to be the last will and testament of the aforesaid Cyrus Jones, deceased, which had been proved and recorded in the county court, and for distribution.

<p>i. Where property is levied upon by an officer which is exempt by statute from execution, Without the assent of the defendant, and a delivery bond is given, it is not obligatoiy, and the chancellor will relieve against it.</p> <p>9. The execution of a delivery bond, under the coercion of the officer who has made an illegal levy on property, is not a recognition of the right to levy, nor a Waiver of the illegality of the levy.</p> <p>1. Where property is levied upon by an officer which is exempt by statute from execution, without the assent of the defendant, and a delivery bond is given, it is not obligatory, and the chancellor will relieve against it.</p> <p>2. The execution of a delivery bond, under the coercion of the officer who has made an illegal levy on property, is not a recognition of the right to levy, nor a waiver of the illegality of the levy.</p>

<p>ERROR TO WASHINGTON CIRCUIT.</p> <p>Ord Pet.</p> <p>Case 20.</p> <p>Case stated.</p>

<p>1. Upon the trial of a will case before a jury, which was contested upon two grounds — 1. The incompetency of the testator. 2. Improper influence and fraud — the jury rendered a verdict in these words: “We of the jury believe, from the testimony, that owing to the organization of the mind of Joel Quisenberry, and his suffering, pain, and disease, he was not, on the 25th August, 1847, capacitated to make a valid will and testament, and for these reasons we find the paper, set up and relied on in the pleadings in this ease, is not his true last will and testament.” Held, that this verdict is in substance and effect a finding that the testator had not sufficient capacity to make a will.</p> <p>2. The power of a jury to determine facts upon the evidence, is not a power of the will merely, hut involves the exercise of judgment and discretion, and is subjected to those restraints which judgment and discretion imply; and there are cases in which the court of appeals, against the opinion of the circuit judge, will grant new trials in Will cases. The difficulty is lessened where the verdict itself involves an error of law, or is induced by an erroneous instruction of the court.</p> <p>3. Where the proof in a will case showed that the testator frequently declared his intentiou to give his land to his sons, and his other property to his daughters, and also declared his intention to make an equal distribution of his estate, and the will was assailed for incapacity in the testator, and undue influence and fraud, it was error in the court, and misleading to the jury, to instruct them that the evidence of the testator’s declarations of an intention to make an equal will was a circumstance entitled to their consideration on the question of competency and undue influence, without qualification.</p> <p>4. It is misleading for the court to give an instruction based upon the evidence up on one side, thereby authorizing a controlling effect to be given to a single fact, without regard to other countervailing facts which the jury is bound to consider. A will is not to he regarded as invalid because not made in conformity to a previous declaration of the intention of the testator.</p> <p>1. Upon the trial of a will case before a jury, which was contested upon two grounds— 1. The in competency of the testator. 2. Improper influence and fraud —the jury rendered a verdict in these words: “We of the jury believe-, from the testimony, thát owing to the organzation of the mind of Joel Quisenberry, and his suffering,pain, and disease, he was not, on the 25th August, 1847, capacitated to make a valid will and testament, and for these reasons we find the paper, set up and relied on in the pleadings in the case, is not his true last will and testament.” Held, that this verdict is in substance and effect a finding that the testator had not sufficient capacity to make a will.</p> <p>2. The power of a jury to determine facts upon the evi-' dence, is not a power of the will merely, but involves the exercise of judgment and discretion, and is subjected to those restrants which judgment and discretion imply; and there are eases in which the court of appeals, against the opinion of the circuit judge,willgrant new trials in. will cases. The difficulty is lessened where the verdietitself involves an error of law, or is induced by an erroneous instruction of the court.</p> <p>3. Wliere tlie proof in a will ease showed that the testator frequently declared his intention to give his land to his sons, and his other property to his daughters, and also declared his intention to make an equal distribution of his estate, and the will was assailed for incapacity in the testator, and undue influence and fraud, it was error in the court, and misleading to the jury, to instruct them that the evidence of the testator's declarations of an intention to make an equal will was a circumstance entitled to their consideration on tlie question of competency and undue influence, without quali- ■ fication.</p> <p>4. It is misleading for the court to give an instruction based upon the evidence upon one side, thereby authorizing a controlling effect to be given to a single fact, without regard to other countervailing facts which the jury is bound to consider. A will is not to be regarded as invalid because not made in conformity to a previous declaration of the intention of the testator.</p>

Case 22. Chenault filed his petition in the Madison circuit court, and obtained an injunction injoining Burgen from opening a certain road which passed through the lands of Chenault, and obtained an injunction restraining the opening of the road upon giving an injunction bond to Burgen, with the following condition annexed thereto, to-wit: “We undertake that the defendant, Waller Chenault, shall pay to the defendant, John Burgen, the damages, not exceeding $500, which he may…

In the year 1818 the heirs of W. F. Simrall instituted a suit in chanoery, in the Jefferson circuit court, against James Hunter, &c., to compel a conveyance of twenty and a half acres of land then adjacent to, but now within the limits of the city of Louisville.

This suit was brought against the principal and his surety, upon a bond given to the plaintiff upon suing out an attachment against him, which was subsequently discharged. The’plaintiff alleges damage to have accrued to him in various particulars, for some of which no recovery could be had in an action on the bond, and concludes by averring, that by reason of said restraining order and suit he had been put to costs, &c., to the amount of $700, and asks a judgment. Ord. Pet.

CBtANOEBV Case 25. A bill having been filed by the administrator, de ionis non, of Benjamin Alsop against his heirs and creditors for a settlement of his estate, the principal claim presented against the estate was asserted by S. P. Barbee and Mary 0., his wife, formerly Mary O. Harris, who had been the ward of said Alsop.

Jarvis filed his petition in equity against Davis, his debtor, and Mrs. Bell, to attach some slaves in possession of the latter as the property of Davis. The plaintiff alleged that he held a note on Davis for upwards of $500, which was due and unpaid, and that he had removed from this state.

Pet. Eq. Case 27. This suit was brought to inforce a lien for the balance of purchase money alleged to be due for a tract of land in Jefferson county, sold by McCauley to Lloyd. Process issued, directed to the marshal of the Louisville chancery court, and was served by a special bailiff appointed for that purpose on all the parties in Nelson county, where they resided ; his return was in the usual form, without any affidavit.

Ord. Pet. Case 28. On the 3d of March, 1832, Martin was appointed guardian to William E. McCleland, an infant, by the probate court of Clermont county, Ohio.

Pet. Eq. Case 29. P. S. Loughborough and Eliza, his wife, by deed bearing date the first day of November, 1851, conveyed to Joshua F. Speed, certain real and personal estate therein described, in trust, for the purpose of providing for the payment of the debts therein enumerated. The trustee was directed to sell the property conveyed, in such manner and upon such terms as would realize the largest prices, and to make conveyances to the purchasers.

Oru.pbt. Case 30. John Young having prosecuted J. A. Keene to insolvency, on a note executed by him, and of which Young was assignee or indorsee, brought this action to recover the amount with interest, &c., against H. C. Harris, his immediate indorser. The note is dated at Cincinnati,'and payable nine months after date at the LaFayette Bank of Cincinnati, to J. M. Tipton.

Ord. Pet. Case 31. This action by petition was brought by the heirs .ol Solomon White against several defendants, for the recovery of a tract of land in Lawrence county, of which the plaintiffs state that they are the owners, and entitled to the possession.

Obd. Pei. Case 32. This action of ejectment was brought in 1849 by the heirs of Robert Phillips, to recover the possession of a tract of about one hundred and fifty acres of land, being an island in the Ohio river called Wood island.

Fbt. Eq. Case 33. In 1825 Sarah Benning instituted a suit in chancery against her husband, Anthony Benning. She alleged in her bill that the defendant had treated her with great cruelty and inhumanity, and that when she married him she was in the possession of two negro slaves, claiming them under a devise in the last will and testament of her father, Anthony Arnold, to her and her children, if she had any, hut if she died childless, to her surviving brothers and sisters.

APPEAL PROM MADISON CIRCUIT^ Case 34. Daniel Rapp was indicted, tried, and convicted in the Madison circuit court upon the charge of maliciously-shooting David J. Rowland with the intent to kill; a new trial was moved for and overruled by the circuit judge, and the defendant has appealed to this court. Case stated, The grounds filed for the new trial are the following : 1. The verdict of the jury is contrary to law and evidence. 2.

Chancery Case 35. Case stated, On the 3d of December, 1831, John Payne executed a deed of mortgage to John T. Langhorne, conveying a large number of tracts of land to secure the payment of a number of debts expressed in the mortgage.

Chancery Case 36. Case stated, George Herring died intestate, leaving an estate consisting almost entirely of slaves. Arnold was appointed his administrator, and also the guardian of his children. These suits are brought against Arnold, by three of the distributees, for their distributable part of the estate in his hands.

<p>1. Where suit is brought by ordinary petition against several defendants, it should appear that one at least of them was served with process in the county where suit is brought, before judgment against any one defendant. (Code of Practice, sec. 132, 3,4.)</p> <p>2. According to sec. 478, Code of Practice, rendering judgment before a case stands for trial, is declared a clerical misprison, from which no appeal lies until the circuit court has refused to correct it. (Code of Practice, sec. 479.)</p> <p>1. Where suit is brought by ordinary petition against several defendants, it should appear that one at least of them was served with process in the county where suit is brought, beforejudgment against any one defendant..— Code of Practice, secs. 132, 3, 4.</p> <p>2. According to sec. 478, Code of Practice, rendering judgment before a case stands for trial, is declared a clerical misprision, from which no appeal lies until the circuit court has refused to correct it. Code of Practice, sec. 479.</p>

Agreed Case. Case 37. Case stated. M. C. Johnson is a citizen of Lexington. On the — day of March, 1854, the mayor and council of the city of Lexington passed an ordinance, a copy of which is part of this agreed case. In a few days thereafter the city assessor called on the plaintiff to give in a list of his property for taxation, in the year 1854, under said ordinance.

<p>ERROR TO BOURBON CIRCUIT.</p> <p>Case 39.</p> <p>Oase stated,</p>