Volume 54 — Kentucky Reports

<p>Indictment.</p> <p>Case 1.</p> <p>EUROB, TO MEADE CIRCUIT.</p>

Pet. Ea- APPEAL FROM JESSAMINE CIRCUIT. in March, 1815, Peter Pollock died, having made and published his will — ■which was duly proved and recorded — by which he devised all his slaves, by name, “to his wife, Mary Pollock, during her natural life,” and at her death he devised “said slaves to Stephen Walter, in trust for the use of his four children, John Pollock, William Pollock, Sally Crutcher, and Betsy Stonestreet, during their lives, and at their deaths, or the death of…

Motion. Gase 3. ERROR TO SHELBY COUNTY COURT: ERROR TO OLDHAM COUNTY COURT. By an act of the Legislatui’e, passed on the 1st of January, 1852, for adding a part of the territory of Shelby county to the county of Oldham, no authority was conferred for running and marking the line. The surveyor of Shelby county attempted it, but failed to complete it, reporting it impracticable to do so', and comply with the act. The surveyor of Oldham run the line.

Ejectment. Case 4. ERROR TO BALLARD CIRCUIT. The case is fully stated in the opinion of the court. The circuit court erred in overruling the plaintiff’s motion for a new trial. Though the points made by the plaintiff’s counsel for a. new trial were numerous, three only will be relied upon in the discussion. 1. ,The suit was barred by the statute of limitations.

O'hd. Pep. Case 5. APPEAL FROM MORGAN CIRCUIT- Case stated. Lewis brought his action against Caskey for entering upon his land, then, in his possession, and cut'ting, destroying, and carrying away his timber, whereby he sustained damages to the amount of $100.

Ord. Pet. Case 6. APPEAL FROM MORGAN CIRCUIT COURT. Spradling brought this suit to recover the value of a horse and damages for its detention against Kendall, which plaintiff alleges he purchased at a sale made, by a constable, under an execution in favor of Mary Kendrick against Kendall and Evans. A judgment was recovered at the April term, 1854, for $43 12. No appeal was prayed until the 27th October, 1854, when the record was filed with the clerk of the Court of Appeals.

Ejectment. Case 7. APPEAL PROM CHRISTIAN CIRCUIT. Case stated. In virtue of the 3d section of an act of the Legislature of Kentucky, passed on the 22d of December, 1798, the Justices of the Franklin County Court, in the year 1799, caused to be surveyed 6,000 acres of land south of Green river, for seminary purposes. By an act passed on the 17th of December, 1800, (2 Litt.

Pet. Eq Case 8- ■ APPEAL FROM FAYETTE CIRCUIT. Case statecl- A petition in equity was filed in the Payette Circuit Court by Punnett, &c., to enforce the sale of certain property specified in a deed of trust executed by the Maysville and Lexington Railroad Company, and praying that the proceeds might be applied to discharging the debts secured by the deed of trust.

Chancery. Case 9, ERROR TO JESSAMINE CIRCUIT.- Case stated, James Wilmore filed his bill in the Jessamine Circuit Court against his wife, Susan Wilmore, for a divorce, upon the ground that she had abandoned him and refused to live with him as a wife.

Caso 10. APPEAL FROM MADISON CIRCUIT. The reader is referred to the opinion of the Court, where the facts of the case are clearly stated. 1. There is no proof in the record of the transfer of the judgment from Randall to Shaw; none is filed, nor is there any deposition in the case. The answer of Randall is not evidence against Dunlap & Turners, their co-defendants.

Orí). Pet. Case 11. APPEAL FROM MADISON CIRCUIT. Case stated. Moberly and wife brought this suit, by ordinary petition, in the Madison Circuit Court, to recover the possession of a small piece of land from Smith.

Ord. Pet. Case 12. APPEAL PROM BOYLE CIRCUIT. Case stated. Smith, the appellant, and Wade, executed their joint and several obligations to Nichols for the payment of money. Nichols, by indorsement on the note, assigned it to Latimer.

Pet. Eq. Case 13. APPEAL FROM LINCOLN CIRCUIT. Case stated. Robinson having a judgment against Huffman, rendered in 1841, for $125 72, interest and costs, and a return of no property found upon an execution on that judgment, filed his petition against Huffman and wife, and praying for the sale of the husband’s interest in a certain house and lot in Stanford, upon which it is alleged the husband, (the defendant in the execution,) had made improvements to the amount of four or…

Case 14. APPEAL FROM NELSON CIRCUIT. Case stated. Charles A. Wickliffe being the owner of two hundred acres of land, beingpart of a survpy of 2,400 acres patented to William Coons, in Nelson county, Kentucky, and lying near to Bardstown; and also the owner of fifty acres, part of tbe same tract, in a distant part of the survey from the 200 acres, filed his petition in the Nelson Circuit Court to cause to be opened a passway from the 200 acres to the fifty acres, alleging a…

Qrd. Pet. Case 15. APPEAL FROM WHITLEY CIRCUIT. Case' stated. Curd brought this action in the Whitley Circuit Court against Estham for speaking slanderous words of him, in substance charging the plaintiff with swearing to a lie.

Ord. Pet. Case 16. APPEALS FROM BRACKEN CIRCUIT. Case stated. This petition was filed by Nancy B. Hedger, to recover possession of a tract of land in Bracken county, part of a tract of 7,468 acres, patented to James Speed. The plaintiff is one of the children of Benjamin Beall, to whom James Speed, on the 22d of August, 1803, conveyed apart of the land embraced by his patent.

Case 17. APPEAL FROM BOURBON CIRCUIT. Case stated. William Collins, the guardian of Henry C. Champ, filed his petition in the Bourbon Circuit Court for the sale of two small tracts of land, belonging to said infant, lying in that county, consisting of about eighty acres — part devised to him by his father, Thomas Champ, and part descended to him from his infant brother, George Champ — alleging that said two tracts of land were some distance apart, destitute of timber,…

Ord. Pet. Case 18. ERROR TO GARRARD CIRCUIT. Case stated. On the 21st October, 1851, Smith filed his petition in equity in the Garrard Circuit Court, against Spilman and Duff, in which he alleges, in substance, that on the first of January, 1849, ho became the surety of one James Bates, in a note to George W. Doneghy, a commissioner of the Boyle Circuit Court for the sale of certain slaves, mentioned in a decree of that court, in a suit of Ison and wife against Gaines’…

Case 19. ERROR TO THE ICNOX CIRCUIT. The facts are stated in the opinion of the Court. 1. There is not sufficient evidence in the record showing that the note for $30, and the notes executed in December, 1849, were for money or goods furnished Duling by Brittain with which to gamble. 2. As to the $100 note : Charles Newbee won a mare from Duling at cards. Duling, in order to get it back, offered Newbee his note for sixty dollars.

Chancery. Case 20. appeal from Fleming circuit. Case stated. Thadeus C. Campbell recovered a judgment before a justice of the peace for $48 20 against the appellee, for services rendered as counsel and attorney at law.

Habeas Corpus. Case 21. APPEAL FROM THE DECISION OF THE CIRCUIT JUDGE OF PIKE COUNTY ON A WRIT OF HABEAS CORPUS. Case stated, In September, 1846, James Sloan made a writing stating the terms on which his slave Sam should be free.' In 1847 he died, having made a will and appointing executors, who not qualifying, his estate was committed to the sheriff. James Sloan devised certain slaves to his wife.

Pet. Eq. Case 22. APPEAL PROM HARRISON COUNTY COURT. Case stated. The county judge of Harrison county made an order for building a jailer’s house, on the public ground in Cynthiana, and appointed a commissioner to contract for it, but the order was not entered of record. Smith, the appellee, undertook the work by contract with the commissioner, and completed it, and the justices of the County Court refused to levy the cost of the building upon the county.

IVr. Eawrv. Case 23. APPEAL FROM MARION CIRCUIT. Case stated.

Processioning. Case 24. appeal from Washington county court. Case stated. Gettings caused the proeessioners of the county of Washington to go upon his land, procession it, and make their report to the County Court. Mclntire appeared in court upon the return of the report of the proeessioners, and filed exceptions to the report, seeking to contest its correctness and asked the court to adjudicate upon the sufficiency of his exceptions.

<p>1. It is too late to ask the court to dismiss a suit after plaintiff’s testimony has been heard, or to instruct the jury to find for the defendant in a suit against an administrator or executor, because the plaintiff had failed to prove a demand, and the production of the affidavit required by the 2nd article of the 37th chapter of the Revised Statutes. After plaintiff’s testimony is heard, this requisition of the Statute will be regarded as waived.</p> <p>2. The appropriate time for calling for such evidence of demand, and the exhibition of the affidavit, is before the trial; and the mode, by affidavit of defendant that the requisitions of the statute have not been performed, and a rule upon plaintiff to show cause why the suit should not be dismissed.</p> <p>;3. The defendant asked the court to instruct the jury “that if they believed from the evidence that plaintiff and testator in his life time had a settlement in January, 1851, and in pursuance of said settlement a note was executed by defendant’s intestate to plaintiff, and accepted by him, such a settlement is a circumstance from which ■they may presume that the demands were settled between the par ties up to the time of said settlement.” The court refused so to give the instruction, but appended to it the words: “provided they find from the proof that the debt sued for was included in said settlement.” Held — that this modification was misleading — it implying that other proof beside the settlement itself was necessary to authorize the jury to find that the demand sued for was included in the settlement.</p> <p>4. It is error for the court to refer questions of law to the jury, when itis asked .to instruct on the question.</p> <p>1. It is too late to ask the court to dismiss a suit after plaintiff’s testimony has been heard, or to instruct the jury to find for the defendant in a suit against an administrator or executor, because the plaintiff had failed to prove a demand, and the production of the affidavit required by the 2nd article of the 37th chapter of the Revised Statutes. After plaintiff’s testimony is heard, this requisition of the ¡statute will be regarded as waived.</p> <p>2. The appropriate time for calling for such evidence of demand, and the exhibition of the affidavit, is before the trial; and the mode, by affidavit of defendant that the requisitions of the statute have not been performed, and a rule upon plaintiff to show cause why the suit should not be dismissed.</p> <p>3. The defendant asked the court to instruct the jury “that if they believed from the evidence that plaintiff and testator in his life time had a settlement in January, 1851, and in pursuance of said settlement a note was executed by defendant’s intestate to plaintiff, and accepted by him, such settlement is a circu m s t a n c e from which they may presume that the demands were settled between the parties up to the time of said^settlement.’ Thg court refused to give the instruction, but appended to it the words: “provided they find from the proof that the debt sued for was included in said settlement.” Held — that this modific at ion was misleading —it implying that other proof beside the settlement itself •was neccessary to authorize the jury to find that the demand sued for was included in the settlement.</p> <p>4. It is error for the court to refer questions of law to the jury, when it is asked, to instruct on the question.</p>

Case 26. APPEAR FROM MEADE CIRCUIT. The case is fully stated in the opinion of the court. Argued — 1. Held: that spoken merely, the language would not be actionable, yet having been written and published they were actionable. Hosmer, Justice, in Stowers vs. Converse, 3 Con.

Oim. Pet. Case 27. APPEAL FROM NELSON CIRCUIT. Case stated. This suit was brought by Higdon, in the Nelson Circuit Court, against Gore, administrator of William Gibson, on a note which purports to have been executed by William Gibson.

Ejectment. Case 28. APPEAL FROM OWEN CIRCUIT. Case stated. This is an action of ejectment brought originally in the General Court, and removed to the Owen Circuit Court. The demises are laid in the name of Hunter and others, as heirs of Robert Hare. The plaintiff claims under a patent for 1,000 acres, and is dated in 1788, and covers nine tenements in the possession of different individuals.

Oiuj. Pet. Case 29. APPEAL FROM NICHOLAS CIRCUIT. Case stated. This suit was brought by the Maysville and Lexington Railroad Company against McMillan, to compel the payment of ten shares of stock in said road, alleged to be due upon the subscription of the defendant.

Covenant. Case 30. ERROR TO THE CALLOWAY CIRCUIT. The opinion of the judge contains a full statement of the case, to which the reader is referred. The issue in this case was whether the slave sold by Vancleave and Kelso to Allen, the plaintiff in error, was sound at the date of the bill of sale, on the 10th December, 1852. 1.

Cage 31. APPEAL FROM JEFFERSON CIRCUIT. Cage stated. Held: under the superintendence of two judges, a sheriff or marshal, and a clerk, to be appointed by the mayor, who shall each receive one dollar per day out of city treasury; and who shall take the same oath as judges are required to take when holding municipal elections.

Ord. Pet. Case 32. APPEAL FROM FAYETTE CIRCUIT. Wendover sued the city of Lexington -to recover back $350 paid to the city between 1848 and 1853, as tax upon his office for the sale of lottery tickets in the city, which he alleged he had been compelled illegally to pay by an act of the Legislature and an ordinance of the city.

Pet. Ea. Case 33. APPEAL PROM HENDERSON CIRCUIT. Tbe facts of the case are stated in the opinion of the court. — Rep. The demurrer to the bill should have been sustained. Lambert and Ingram, in their joint answer to the bill of Walker, filed to redeem the slaves, contend that the slaves were absolutely the property of the partnership.

Chancery. Case 34. ERROR TO THE LIVINGSTON CIRCUIT. Case stated. James Davis, of Maury county, Tennessee, in the fall of 1851, purchased a stock of goods in Philadelphia, (as is charged,) with the fraudulent design of not paying for them. The goods were packed and addressed to him, and marked with the names, also, of the vendors, and started from Philadelphia by way of Pittsburg.

Case 35. appeal from madison circuit. Case stated. Held: if they take in the character of heirs, they must take in the quality of heirs. A greater latitude of construction has been indulged, both in England and this country, in wills than deeds.

Pet.Eq. Case 37. APPEAL FROM MUPILENBURG CIRCUIT. The facts of the case are fully stated in the opinion of the court. — Rep. The decree rendered by the court below' should be reversed, with directions to dismiss the bill of complainants. 1. As respects the slave, Austin. Six or seven years before the institution of this suit, Evans went to New Orleans in a flat boat, and took Austin with him, as a hand, to aid in navigating the boat.

Oud. Pet. Case 37. APPEAL FROM EDMONSON CIRCUIT. Case stated. Smith, holding a note signed by Sweeney and wife, brought an action by ordinary petition thereon against the husband and the wife. The defendants filed a joint demurrer to the petition, but afterwards withdrew it, and Mrs. Sweeney alone answered, insisting upon her coverture as a defense to the action.

Pet. Ea- Case 38. APPEAL FROM MONTGOMERY CIRCUIT. The facts of the case are fully set out in the opinion of the court. It is contended that the facts in this case show that the appellants are free, and that the decree of the Circuit Court is erroneous. 1.

Chancery. Case 39. ERROR TO KENTON CIRCUIT. The facts of the case are stated in the opinion of the court. — Rep.

Pet. Eq. Case 40. APPEAL FROM KENTON CIRCUIT. The opinion of the court contains a statement of the facts of the case. 1.

Case 41. APPEAL FROM CHRISTIAN CIRCUIT. The facts of the case are stated in the opinion of the court. — Rep. 1. The only important question for the decision of this court is the construction to be given to the clauses in the will of Arthur McGaughey, in the disposition of the land and slaves to his wife.

o»». ?«t. Case 42. APPEAR PROM KENTON CIRCUIT. Cmo stated. The appellant brought this suit against the Railroad Company, to recover damages for an alleged injury to his real property in Covington, by running the railroad along Washington street, on which his property was situated, thereby destroying the grade of the street and injuring his shade trees, and compelling plaintiff to incur great expense to make his property in a tenantable condition.

Ord. Pet. Case 43. APPEAL FROM CAMPBELL CIRCUIT. The facts of the case are fully set out in the opinion of the court. The counsel for appellants argued— 1. that the appellees had no insurable interest in the carpenter’s work mentioned in the policy at the date of the policy. 2.

Ord. Pet. Case 44. APPEAL FROM JEFFERSON CIRCUIT. The facts of the case are stated in the opinion of the court. — Rep. Held: that the assured was entitled to recover the whole amount of the last policy without reference to the first. This decision is pointedly condemned by Phillips, 1 Treatise on the Law of Insurance, (3d ed.) 204; and seems to the writer to be a plain violation of common sense.

•Chancery.- Case 45. ERROR TO SPENCER CIRCUIT. The facts of the case are stated in the opinion of the court. — Rep. 1. The survey in this case shows a surplus of thirty-one acres. Held: and we perceive no good reason why it should be so adjudged. In this alone the court below differed from us. If it had been a private sale, we presume there would have been no question of the right to recover for the surplus.

Okd. Pet. Case 46. APPEAL FROM JEFFERSON CIRCUIT. The facts of the case are clearly stated in the opinion of the court. The promise alleged in the petition to have been made by the appellant is clearty within the statute of Frauds, and, to be binding, should have been in writing.

Okd. Pet. Case 47. APPEAL FROM JEFFERSON CIRCUIT. The opinion of the court contains a statement of ' the facts of the case. Gudehus having ■ an execution against Gunn, placed it in the hands of Brown, a constable, for levy and collection. Brown levied upon Gunn’s only horse. Gunn sued Brown, and Gudehus came into court and was substituted, on his motion, for Brown as defendant, which was objected to by Gunn’s counsel. Gudehus pleads and relies, 1.

<p>Ord. Pet.</p> <p>Case 48.</p> <p>APPEAL FROM ANDERSON CIRCUIT.</p> <p>Case stated.</p> <p>This action was brought by Samuel Tinsley against Nancy Tinsley and John A. McClure, her surety, upon an injunction bond given by Nancy Tinsley to stay the execution of a writ of restitution awarded by the Shelby Circuit Court, to give to Samuel Tinsley the possession of one hundred and seventy acres of land, which, it was adjudged, had been unlawfully detained by Nancy Tinsley. The warrant for the forcible detainer was sued out in March, 1850, a judgment for restitution, and the finding traversed and not prosecuted, but the case dismissed, and a writ of ■ restitution awarded. To stay this writ, Nancy Tinsley, on the 9th April, 1850, filed her bill in the Shelby Circuit Court, claiming title to the land, and enjoining the writ of restitution.</p> <p>In October, 1851, the Circuit Court dismissed her bill and dissolved the injunction, and awarded the writ of restitution. An appeal was prosecuted by Nancy Tinsley, the decree affirmed, and the writ of restitution issued, and possession delivered to Samuel Tinsley of the land, with a crop of corn not gathered. The suit is brought upon the injunction bond, given by Nancy Tinsley, with John A. McClure as her surety, to save the defendant, Samuel Tinsley, harmless, and indemnify him for any loss arising from the injunction. He claims damages commensurate with the injury arising to him by being kept out of the possession and use of his land for two years, and the costs expended in defending the suit in chancery; which had not been paid.</p> <p>The defendants, in two separate paragraphs, set up for defense, 1. That, in the year 1850, the defendant, Nancy, was unable to rent the land, because of the threats of plaintiff given out, that he would take the possession of the land, so soon as the law would permit, with any crop upon it. 2. That in October, 1851, whilst there was a crop growing upon the land, the plaintiff did, in fact, take possession of the land, with crop growing thereon, to-wit: one hundred and eighty barrels of corn, worth one dollar and fifty cents per barrel.</p> <p>Plaintiff demurred to each of these matters of defense, but the demurrer was overruled by the Circuit Court. A reply was filed denying the truth of the first and justifying the second defense. The jury found a verdict for the defendants for $69 50. The plaintiff moved in arrest of judgment and for a new trial; both motions being overruled, the plaintiff appealed to this court.</p> <p>It is denied by counsel for appellant, that the matters set out in the first paragraph of the answer, presents any valid legal defense to the action. Broad as the Code of Practice may be, and however it may enlarge the defense to actions at law, it is not believed that it is broad enough to let in this defense to an action upon an injunction bond. It is denied that the declarations of Tinsley that he would get the possession of his land as soon as the law would permit, constituted any cause of action or ground of defense to an action or a set-off. The same may be said as to the defense in the second paragraph — the taking of the corn from the subtenants of Nancy Tinsley by Samuel Tinsley, after he was legally put in possession of the land.</p> <p>Chapter 4, section 152, of the Code of Practice, has this provision: “That the counter-claim allowed must be a cause of action in favor of defendants, or some of them, against the plaintiffs, or some of them, arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.”</p> <p>In this case the subjects of the counter-claim did not arise out of the bond sued upon, or have any connection therewith. The bond was the foundation of the action.</p> <p>The price and value of the corn, which is claimed in the defense, cannot be properly the subject of counter-claim or set-off in this suit. It had not been the subject of any contract. It was not in any way connected with the contract evidenced by the bond. If there was any illegal act done by Samuel Tinsley in gathering corn growing upon land, the possession of which was given to him by legal authority, he was not responsible to these defendants. It was from sub-tenants it was taken, as the proof shows. If it was illegally taken from them, they alone had right of action. It was not a vendible right which, when sold, constituted a valid set-off or counterclaim in this suit.</p> <p>By section 154, chapter 4, of the Code, “a set-off can only be pleaded in an action founded on contract, and must be a cause of action arising upon contract, or ascertained by the decision of a court.”</p> <p>. 2. We do not suppose that the two paragraphs, set up as defense, can be united as a defense to the action, any more than they could be united in the same action. By section 137, title 6, causes of action for tort and contract cannot be joined. Nor do we suppose that a tort, though it grow out of a contract, can be made the basis of a set-off or counterclaim — much less do we suppose that speaking disparagingly of the title of an adversary, in comparison with that of one asserting title, can be the ground of a set-off or counter-claim in a suit between the parties, arising out of a contract.</p> <p>The possession of Samuel Tinsley of the land which had been illegally held, was legally obtained, and with that possession the growing crop. Can he be made responsible for appropriating it to his own use ? It was the production of his own land, and was attached to the soil. We cannot perceive the illegality of his action, or the propriety of admitting such a defense.</p> <p>We insist that the questions were properly presented by the demurrer and by the answer, agreeably to chapter 3, section 149, of the Code, and that the Circuit Court erred in its judgment.</p> <p>1. There is no evidence that the injunction was dissolved. The record exhibited shows no such judgment, and without a dissolution of the injunction, no suit can be maintained upon the bond.</p> <p>2. The answer of the defendants was filed at one term, a demurrer filed thereto, and the demurrer overruled ; at the next term the plaintiff filed another demurrer, without withdrawing the reply. The court overruled the demurrer. Before the Code a demurrer and replication could not be filed to a plea at the same time — the plea was regarded as a waiver of the demurrer. I suppose such is still the law. The Code requires that the plaintiff demur or reply. If he demurs and it is overruled, if the party desire to have the benefit of the demurrer he must abide by the demurrer. If he reply and go to trial, he waives his demurrer.</p> <p>3. The object of the injunction bond was to secure the plaintiff against injury arising from keeping him out of the possession of his land, though he may have been kept out of the use of his land, yet if he has received the benefit of the crop raised, he is not injured. The crop raised by the labor of others he has taken and converted to his own use.</p> <p>4. If, by the conduct of plaintiff, the land could not be rented and the profits received by the obligor in the injunction bond, this interference to her prejudice should be regarded as a good reason why he should not recover rents for lands which was not rented and failed to be productive by his acts. In one instance the plaintiff has taken and enjoyed the product of the land which was rented, and again he has prevented the renting of the land, each of which acts are relied upon and adjudged a good defense to the action, and is sustained by the rules of practice under the Code, whatever might have been the rule in such cases before its adoption. I insist that the judgment should be affirmed.</p>

<p>Pet. Eq.</p> <p>Case 49.</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>Case stated,</p> <p>The appellant, H. G. Smith, filed his petition in the Louisville Chancery Court, to foreclose a mortgage executed to him by John and Washington Broyles, on the 1st day of April, 1848, and have the mortgaged property sold to satisfy certain debts specified in the mortgage, after allowing certain credits specified, in the petition.</p> <p>The defendants, in the answer, allege in substance that the only consideration of the notes executed to Smith, was the amount of the principal and interest of certain other notes which they had given to one Simeon Yewell, deceased, in his life-time; and that the plaintiff, Smith, being entitled to the said notes, or their proceeds, “as residuary devisee” of said Yewell, received the notes from James Guthrie, his administrator, &c.; and in discharge of those notes, executed the notes now sued on, and that there was no other consideration. They state that they borrowed money of Yewell in his life-time, on several occasions, at large and usurious rates of interest, and making altogether $2,700, and executed separate notes at each time of borrowing, and separate notes for the usurious interest. That payments to a considerable amount had been made to Yewell, and additional notes for usury and indulgence given at different times; and at one time a bonus of $50 was given for a loan. That upon a fair settlement, and expunging the usury, their indebtedness will be very small, if anything. They exhibit the notes taken up, two mortgages they had executed to Yewell, in his life-time, and several obligations given to Yewell for the hire of negroes. Say they are very illiterate, &c.</p> <p>1. The appellees admit that they borrowed of Yew-ell $2,700, giving amounts and dates making that sum. They do not state the rate of interest which they paid or agreed to pay. They admit that some of the notes were given for the hire of negroes.</p> <p>It was through the solicitations of the appellees that the appellant was induced to take the notes from Mr. Guthrie, the executor of Yewell, in 1848, and they then gave new notes and the mortgage to secure their payment.</p> <p>The appellant, it is admitted, is one of Yewell’s devisees, and as such received the notes of the executor, giving his receipt for $3,859 — being their amount on the 1st of April, 1848, including interest. The appellees never disclosed to appellant that there was any usury in the notes; and they were received by appellant as cash, and, after a delay of more than five years, claim to be relieved from alleged usury after they had been relieved from their indebtedness to Yewell’s estate, and become the debtors of the appellant.</p> <p>2. It was the duty of the appellees to inform the appellant of any equity they had against the notes before he became the purchaser of them. Had they done so, he would not have taken the notes. They failed to disclose it until more than five years have elapsed, and their remedy against the executor has been lost. They might have sued the executor after taking up the notes, but have failed to do so. The case is analagous to the cases reported : (9 Dana, 653; 16. 601; 7 J. J. Marshall, 16 and 28; 1 Jjitt. 50; 4 Bibb, 39.)</p> <p>3. The commissioner’s report is not sustained by the proof in the cause. The testimony did not authorize the allowance of the $50 alleged to have been charged as a bonus.</p> <p>4. The chancellor failed to give to appellant his costs which he was entitled to recover. {Rev. Stat. chap. 25, sec. ,14, page 206.)</p> <p>A reversal is asked.</p> <p>1. The transaction between the executor of Yew-ell and the appellant and appellees did not purge the usury from the original dealings with Yewell, nor preclude the appellees from afterwards asserting it. It was subject to the right of the Broyles to have the usury purged whilst in the hands of the executor. It was subject in the same way in the hands of his assignees.</p> <p>The commissioner did not err in his estimate of the amount of usury, and his application of the payments to the original sums loaned, and the legal interest due at the time of the respective payments was right. (Booker, Sf-c. vs. Gregory, 7 B. Monroe, 442.)</p> <p>3. The appellees did not forfeit their right to set up the defense of usury to these notes, by anything that took place between them and the appellant. It is admitted that in the case of Goodloe vs. Ross, 9 Dana, 553, it was held by this court that a party who is induced by a promise of usury to part with a good claim, or pay money for a note in which there is usury, and who loses his recourse upon the assignor of the note, by taking a new note and surrendering the assigned note, will be protected against the plea of usury. We do not question the propriety of this decision, but deny its application to this case. Smith was not a purchaser for valuable consideration. Pie did not pay money or property, or surrender a good demand, in exchange for the notes on Broyles. He received the demands from the personal representative of Yewell, as “residuary devisee.” This is distinctly charged in the answer of Broyles, and not denied in the reply of Smith, and must be taken as true. His estate is not diminished by the plea of usury against the demands in his own hands, any more than it would have been in the hands of the administrator or executor. If Guthrie, the personal representative, had sued, he could only have recovered the balance after purging the usury, and that balance have paid over to Smith, to whom it belonged as residuary devisee. Smith does not show that by taking the notes on Broyles, his interest in the remainder of the estate is lessened, or the interest of any other devisee. The question then is, can the devisee of the usurer, who wears his mantle, who stands in his place, avoid the assertion of usury by a debtor by any act that would not be effectual for the testator ? We suppose not.</p> <p>This Court has treated all subsequent agreements by a debtor to pay usury as but additional promises to do that which the law does not bind him to do, and as void. The law regards the debtor, in executing such subsequent promise, or even a release or new note, as acting under the influence and coercion of the creditor, and yielding to his demands under the pressure of his condition, and all such writings must, be regarded and treated as mere shifts and devices to defeat the debtor in asserting his lawful right. {13 B. Monroe, 388-9.) The appellant has in this case furnished the evidence that the. appellees “yielded under the pressure of their condition.” That the executor was about to coerce the debts, and so informed them, arid they knowing the appellant was devisee, and had power to indulge them, applied to him for indulgence, as the administrator had refused it. They did apply to Smith, and he well knew their situation. The promises made under such circumstances, to one having them in their power, to pay usury, cannot be enforced without doing violence to the spirit of the statute against usury, and the decisions of the courts bearing on that subject. The Broyles’ are under no legal or moral obligation to pay Smith what they were not bound to pay Yewell.</p> <p>4. The $50 paid by appellees as a bonus, is clearly proved, and was rightfully allowed by the commissioner. Nicholas Stonestreet, and other witnesses, prove it clearly</p> <p>5. The objections here made to the report of the commissioner for the first time ought not to be heard. They should have been made in the court below. No such exception was there made; if it had been, its truth could have been there tested.</p> <p>6. As to the question of costs, we do not perceive that the Revised Statutes change the rule upon the subject of costs. The appellees were always willing to pay the debt — deducting the usury, the appellant refused, but insisted on “the bond.” The appellees succeeded to the extent of the defense made, and we do not understand the late statute to take from the chancellor his power upon the question of costs. We submit to the court whether the defense did not succeed to the extent made, and whether plaintiff ought to have costs.</p> <p>Upon the whole case we think the decree of the chancellor correct. The proof shows that Yewell ,was in the habit of loaning money at usury; his custom is proved by the exhibits. For money lent he took notes for gold and silver; for the usury he took plain promissory notes for money; for negro hire he took notes specifying the consideration; all these notes are proved to have been in the hand-writing of Yewell.</p> <p>We ask an affirmance.</p>

Chancery. Case 50. APPEAL FROM M’CRAOKEN CIRCUIT. ■Case stated.

Odd. Pet. Case 51. APPEAL PROM CUMBERLAND CIRCUIT. The facts of the case are stated in the opinion of the court. — Rep. It is respectfully insisted that the Circuit Court erred in instructing the jury that upon all the evidence they should find for the appellees; and in refusing a new trial.

<p>Okd. Pet.</p> <p>Case 52.</p> <p>APPEAL FROM KENTON CIRCUIT.</p> <p>The facts of the case are clearly stated in the opinion of the court.</p> <p>The act of the Legislature of March, 1850, to include the lands of the appellee within the corporate limits of the city of Covington, provides that the lands of the appellee shall not be taxed by the city for two years from the passage of the act. At the time of the extension, some improvements had been made in the vicinity of the lands embraced. Others had laid off ground into lots and sold them, upon which houses have been built, and others are being built in the vicinity. Part of appellee’s land is vacant, part used for pasturing stock, and part for agricultural purposes. This was the use to which the ground was appropriated until the suit was brought. About two hundred and twenty acres of appellee’s land was embraced by the act of 1850. Since then he has sold part thereof, leaving about one hundred and sixty-seven acres, upon which the city imposed the tax complained of in the suit.</p> <p>The grounds relied on for reversal are the following: 1. That the appellee consented to the extension of the city limits over his ground. The proof, it is insisted, sustains this ground. Root says that he, as plaintiff’s agent, resisted the passage of the act of 1850; but he says that appellee, by letter, instructed him, if he could not prevent the passage of the law, to get a clause inserted in the act exempting it from taxation for the longest time he could. This was, in effect, a delegation of power to Root, the agent, to compromise the matter. There was a compromise by Root and Lindsey, as agents of appellee, and the extension agreed to on the condition that the land was not to be taxed for two years.</p> <p>2. The second point relied on is, that the Legislature had the constitutional right and power to extend the corporate limits over the land of appellee, even against his consent. The Legislature has the same right to extend the corporate limits of a city or town that it has to pass an original act of incorporation. The authority to sustain this point is found in the case of Cheaney vs. Hooser, 9 B. Monroe, 345.</p> <p>A reversal is respectfully asked.</p> <p>The appellee seeks, by this suit, to recover back from the city of Covington $676, which he coiiceives .to have been illegally exacted from him by the city, in the form of taxation. We contend that the lands which were taxed by the city were not subject to taxation as city property. It was levied upon his farm of about one hundred and sixty-seven ■ acres, which lay some distance beyond the limits of the city of Covington, prior to the passage of an act of the Legislature of 1850, by which the limits of the city were greatly extended, and this land brought within the corporate limits. It lies beyond any improved part of the city — has never been laid out into lots, nor does the appellee desire to do so. It is not needed for city purposes, and its owner derives no benefit from its being within the corporation. There is considerable vacant land between it and the old limits of the city.</p> <p>The appellant relies upon the consent, which it is alleged was given by appellee, that the land should be embraced within the city limits, provided it was not taxed for two years, and insist that it is necessary, in passing to and from improved parts of the city, to pass through the appellee’s land, and claim the right to tax it.</p> <p>Two questions are presented: 1. Is not the levy of a tax by the city authority and coercing it a manifest appropriation of private property to public use, contrary to the constitution ?</p> <p>2. Did Southgate give his consent to the act of the Legislature of 1850, and agree that after two years the land should be taxed ?</p> <p>The facts show clearly that no benefit results to appellee from his land being included within the corporate limits of Covington, and there is no justice or propriety in his being compelled to pay a tax to sustain its local government. When the lands of the appellee shall be demanded for the extension of the city, and lots shall be laid off and built upon and used as other city property, partaking of the benefits of the local government, then there may be a reason for subj ecting it to taxation. The case of Cheaney vs. Hooser, 9 B. Monroe, 345, is referred to on this point.</p> <p>3. There is no proof that Southgate did consent, but on the contrary, the proof shows that he did not give such consent, but employed counsel to appear before the Legislature and oppose the act of 1850.</p> <p>This power of taxation by cities and towns is liable to great abuse, and should be scrupulously guarded. We ask an affirmance.</p>

<p>1. The 3d section of the 64th chapter of the Revised Statutes recognizes the right of the mother to bind out her children, under the ■ ' supervision of the County Court. This embraces free mothers of color, as well as white women, where there is no legitimate father.</p> <p>2. The County Court, binding out orphans of a free woman of color, should permit the mother of such orphan to nominate the person to whom the orphan is to be bound, and bind to such person, unless there be valid reasons against it.</p> <p>3. There should exist some ground of necessity for binding out orphan children of color, such as inability or neglect to bring them up in comfort and moral habits. The mother is entitled to the services of her children, and should not be deprived of their , labor apd assistance without good reason.</p> <p>4. The indenture of apprenticeship should contain a covenant on the part of the master to teach the apprentice the art or business designated by the order of the County Court.</p> <p>1. The 3d section of the 64th chapter' of the Revised Statutes recognizes the right of the mother to bind out her children, nnder the supervision of the County Court.— This embraces free mothers of color, as well as white women, where there is no legitimate father.</p> <p>2. The County Court, binding out orphans of a free woman of color, should permit the mother of such orphan to nominate the person to whom the orphan is to be bound, and bind to such person, unless there be valid reasons against it.</p> <p>3. There should exist some ground of necessity for binding out orphan children of color, such as inability or neglect to bring them up in comfort and moral habits. The mother is entitled to the services of her children, and should not be deprived of their labor and assistance without good reason.</p> <p>4. The indenture of apprenticeship should contain a covenant on the part of the master to teach the apprentice the art or business designated by the order of the County Court.</p>

Case 54. APPEAL FROM CHRISTIAN CIRCUIT. Case stated. . On. the 31st July, 1846, John P. Campbell, as the agent of R. U. Buckner, sold to Daniel Plillman four slaves, for the sum of $2,243 34, and executed a bill of sale therefor, in the name of his principal, purporting to convey an absolute title to the slaves, when in fact Buckner had only a life estate in the slaves, with remainder to his children.

Pet. Eq. Case 55. APPEAL FROM MADISON CIRCUIT. The opinion of the court contains a statement' of the facts of the case. The executor, after having exhausted all the assets set apart by the will for the payment of debts, has paid $1,596 87 out of his own estate, and there remains $1,611 28 still outstanding and unpaid against the estate, and making an aggregate of $3,208 15 to be made out of the devised estate.

<p>X. Though an. indictment describís an offense punished by statute, it is not now necessary that it should conclude “against the form of the Btatute.”</p> <p>2. Any wager upon the result of an election, or on the vote at any particular precinct, or on the number of votes that any candidate may receive, is within the prohibition of the statute. (9 Dana, 31i)</p> <p>1. Though an indictment describes an offense punished by statute, it is not now necessary that it should conclude “against the form of the statute.”</p> <p>2. Any wager upon the result of an election, or on the vote at any particular precinct, or on the number of votes that any candidate may receive, is within the prohibition of the statute. 9 Dana, 31.)</p>

Indictment. Case 2. appeal from jefferson circuit. The facts of the case are fully set out in the opinion of the court. The question presented to this court is whether the production of the law chartering a bank, the notes of which are forged, is absolutely necessary to authorize the conviction of one who is indicted fqr uttering forged bank notes, knowing them to be forged and counterfeited.

Inmctment. Case 3. APPEAL FROM POWELL CIRCUIT. The facts of the case are stated in the opinion of the court. — Rep. No written brief on file.

Indictment. Case 4. APPEAL FROM CHRISTIAN CIRCUIT. Jesse Cornelius was indicted, tried, and found guilty of the murder of Albert G. Hopson, in the county of Christian, on the - day of July, 1854. The testimony showed that there had been two previous difficulties between the parties in the same week in which the killing took place, one on Wednesday the second on Thursday. The killing took place on Saturday.

Ord. Pet. Case 5. APPEAL FROM HENRY CIRCUIT. The facts of the case are stated in the opinion of the court. — Rep. The testimony is not incorporated in the record, and we can only complain of the action of the court, as it appears in the record, in refusing the new trial, under the state of fact as exhibited. The court erred in giving the plaintiff the privilege of dismissing his suit against one of the defendants, and taking judgment against the other two defendants.

Pet. E«. Case 6. APPEAL FROM FLEMING CIRCUIT. The facts of the case are stated in the opinion of the court. Contended that it was the will of the testator that Lewis DeBell was not in any event to have any part of his estate, but that his children, living at the time distribution should be made, as a class should take it, and one of his children having died, the survivors are entitled under the will, and not the father of the child as heir.

Ord. Pet. Case 7. APPEAL FROM BRACKEN CIRCUIT. The facts of the case are fully stated in the opinion of the court. Argued that the judgment should be reversed for several reasons. 1. The evidence clearly shows that Patton did not in fact part with his title to the omnibus. Anderson was not to become vested with the title until he paid for it.

Pet. Eo. Case 8. APPEAL FROM GARRARD CIRCUIT. Case stated. This suit was brought by John Bussing to vacate and set aside a will made by Polly Bussing, his wife, on the 10th January, 1850, and admitted to record by the Garrard County Court in April, 1850, and to recover of Scott property devised to him by the will in trust.

Ord. Pet. Case 9. APPEAL FROM BOYLE CIRCUIT. Case stated. This suit was brought by the administrator of Williams against David Langford, (a man of color,) who was the slave of Williams until the 23d of September, 1842, when he was emancipated by deed duly admitted to record.

Case 10. APPEAL FROM WHITLEY COUNTY COURT. Case stated. Steele produced a bond to the County Court of Whitley, purporting to have been executed by Conrad Grubbs, in February, 1848, and a deed purporting to have been executed by said Grubbs and wife, in 1852, attested by two witnesses, but not recorded.

Pet. Eq. Case 11. APPEAL PROM KENTON CIRCUIT. Case stated. The appellant being the property of the appellee, a citizen of Virginia, was permitted, by his owner, to reside in Covington, Kentucky, for some years, paying the proceeds of his labor to his master, who, being on a visit to Cincinnati, Ohio, sent across the Ohio river a request that the appellant meet him at the house of C. A. Withers & Co., in Cincinnati, when he proposed to appellant that if he would give him $400…

Pkt. Ea. Case 12. APPEAL FROM FLEMING CIRCUIT. The facts of the case are clearly stated in the opinion of the court. Argued, 1. That the court below erred in not sustaining the bill of review and granting the relief prayed for, on the ground that the proper and necessary parties were not made to the original suit. 2. That the surety in the guardian bond was released by lapse of time. 3. No allowance was made to the guardian for his services. 4.

Ord. pET. Case 13. APPEAL FROM ANDERSON CIRCUIT. Case stated. This suit was brought originally in the name of Polly Malier, to recover a tract of 130 or 140 acres of land lying in Anderson county, in the possession of Samuel B. and William B. Petty. The plaintiff recovered a judgment, which was reversed by this court, upon the ground mainly that the husband of the plaintiff had not united in the suit.

Pet. Ed. Case 14. APPEAL FROM FLEMING CIRCUIT. The facts of the case are stated in the opinion of the court. — Rep. The plaintiff in error contends that the Circuit Court erred in the following particulars ■: 1. In committing the appellant to jail at October term, 1852. 2.

Pet. Eq. Case 15. APPEAL FROM GARRARD CIRCUIT. Case stated. Held: or had any knowledge of its validity. They exhibit the executory contract and deed of Fitch and wife to them, and allege a possession under that title for more than thirty years.

The facts of the case are stated in the opinion of the court. 1. The court below erred in rendering judgment for the amount of plaintiff’s account without any proof that the services charged in the account had been rendered, or the value of those services, and that they were according to the custom of the country.

Ord. Pet. Case 17. APPEAL FROM MONTGOMERY CIRCUIT. The facts of the case appear in the opinion of the court. To this suit, in the name of Everman and wife against Jones, the defendant answered, relying upon a set-off to the demand for $678 50, executed to Mrs. Everman whilst sole, as the administratrix of the estate of William Wren, deceased. The set-off re-, lied upon is for boarding the administratrix from 1843 to 1852.

Pet. Eq. Case 18. APPEAL FROM BATH CIRCUIT. Case stated. In August, 1853, Conner bet witb Ragland $162 50 in money, and a note which he held on Hood for $400, on the election. The money and note was staked in the hands of Thompson, and the note assigned to him, and he is alleged to be a partner with Ragland in the bet. Conner brings this suit against Ragland and Thompson for the recovery of the money and note, or the money due upon the note.

Ord. Pet. Case 19. APPEAL FROM PENDLETON CIRCUIT. The facts of the case are fully set out in the opinion of the court. 1. The court erred in permitting James Ingles, a witness for the plaintiff below, to detail the statements of Wingate in regard to the number of ties delivered by plaintiff when objected to by the defendants. Wingate was himself a competent witness, and his statements were but hearsay.

Pet. En. Case 20. APPEAL FROM JEFFERSON CIRCUIT. The facts of the case are fully stated in the opinion of the court. Held: after full argument, that the last act was unconstitutional.