Volume 56 — Kentucky Reports

<p>1. Where an infant dies possessed of real estate devised to him by the father, having brothers and sisters of the whole and of the half blood, those of the half blood take only half shares with those of the whole blood, according to the 9th see. Rev. Stat., p. 280, and see. 3d of the same statute.</p> <p>2. The brothers and sisters of an infant take from the infant, as collaterals, where they inherit real estate from the infant. (Sec. 3d of Statute of Descents.)</p> <p>[The facts of the case are set out in the opinion of the Court. — Rep.]</p> <p>1. Where an infant dies possessed of real estate devised to him by the father,having brothers and sisters of the whole, and of the half blood, those of the half blood take only half shares with those of the whole blood, according to the 9th, sec. Revised Stat.,p. 280, and sec. 3d of the same statute.</p> <p>2. The brothers and sisters of an infant take from the infant as collaterals, where they inherit real estate from the infant. (Sec. 3 of statute of Descents.)</p>

<p>X. Under the Code of Practice, no cross-petition by a defendant is proper. The only allowable pleadings are demurrer or answer by the defendant, and demurrer or reply by the plaintiff, and counterclaim or set-off by the defendant.</p> <p>2. In a suit brought for a sale and distribution of property under a will, it is not competent, by cross-petition by a defendant, to attack the will. It must be by a direct proceeding; and a distribution under the will may be enjoined if desirable.</p> <p>[The facts of the case are stated in the opinion of the court. — Rep.]</p> <p>1. Under the Code of Practice, no cross-petition by a defendant is proper. The only allowable pleadings are demurrer or answer by the defendant, and demurrer or-reply by the plaintiff, and counter claim or. set-off by the defendant.</p> <p>2. In a suit brought for a sale and distribution of property under a will, it is not competent, by cross-petition by a defendant, to attack the will. It must be by a direct proceeding, and a distribution under the will may be enjoined if desirable.</p>

Case 3. Ord. Pet. Appeal from pendleton circuit. Case stated. The appellees brought their petition to recover the possession of a tract of land lying in Pendleton county. They exhibited no evidence of title, but relied upon the fact that one Anderson, who was in possession of the land, had taken fro® them a lease for three years of the land, and before expiration of that lease sold the land to appellant, and put him in possession, and that Payne disputed their title.

Case 4. Pet. Eq. APPEAL FROM CLARKE CIRCUIT. After there had been a jury in the case which could not agree on a verdict, at a subsequent term of the court another jury was sworn to try the issue formed as to the validity of the will of David Thompson, which purported to have been executed on the 81st day of May, 1850, and was proved and ordered to record at the July term of.the Clarke county court, 1850.

<p>1. It is the duty of every man so to use his own property as not to injure that of another. And when one is charged with a violation of this rule, the inquiry is whether the defendant has failed to use that skill and precaution which a prudent and skillful man would have done in the use of his own property. Not that care which the law would require of defendants, if they had been in possession of plaintiff’s boats as bailees.</p> <p>2. A bailee is regarded as holding the possession for a special purpose, and a contract express or implied exists upon his part to perform the objector purpose of the trust.</p> <p>[The facts of the case are stated in the opinion of the court. — Rep.]</p> <p>1. It is the duty of every man so to use bis own property as not to injure that of another. And when one is charged with a violation of this rule, the inquiry is whether the defendant has failed to use that skill and precaution which a prudent and skillful man would have done in the use of his own property. Not that care which the law would require of defendants, if they had been in possession of plaintiff’s boats as bailees.</p> <p>2. A bailee is regarded as holding' the possession for a special purpose, and a contract express or implied exists upon his part to perform the object or purpose of the trust.</p>

<p>Case 6.</p> <p>Pet. Eq.</p> <p>APPEALS FROM JESSAMINE CIRCUIT.</p> <p>1. The appellant states positively in his answer that the real consideration paid for the land was two hundred dollars, and the proof sustains him. The proof also shows that it was the fair cash value of the remainder in the land purchased.</p> <p>There is no proof to show that R. W. Davenport was insolvent, or in failing circumstances, when he made the sale to George H. Davenport. The principal indebtedness occurred subsequently to the sale and conveyance.</p> <p>2. The circuit court erred in sustaining the exceptions to the depositions proving the real consideration paid for the land. 2 Marshall, where this court said: ‘‘Whether a consideration be necessary to make a deed valid we do not think it material to decide, for the solemnity of a deed implies a consideration. And if omitted to be expressed in the deed, the omission may be supplied.”</p> <p>3. But if the court should be of opinion that the depositions were properly excluded, it is insisted that for the $200, which R. W. Davenport owed Geo. H. Davenport, he should have a lien upon the land.</p> <p>If our view of this case be correct, the decree in the case of Green and McCampbell must also be reversed.</p> <p>1. The facts proved and admitted, do not prove that the deed from R. W. to Geo. H. Davenport was fraudulent. Conceding that R. W. Davenport was insolvent at the date of the conveyance to Geo. H. Davenport, it does not follow that the deed was fraudulent. They are both sons of Francis Davenport, who had been dead many years, leaving a widow, to whom he devised a life estate in 110 acres of land. Upon the death of the widow it was to become the property of eight children, of whom R. W. and G. H. Davenport were two. The tenant for life was living at the date of the conveyance, and might survive for many years. There was no motive with R. W. Davenport to make a fraudulent conveyance ■ — he was in good credit and but slightly indebted.— He had at all times a considerable property in possession — he was in good credit up to his death. No other conveyance was made by him, and no effort to place it in the hands of his children to the prejudice of his creditors. No advancement to his daughter on her marriage — no execution ever returned unsatisfied. He made no mortgages at any time. The fact that some of his debts were created before the date of the conveyance, in view of the foregoing facts, cannot invalidate the deed.</p> <p>2. But it is supposed that the consideration of one dollar, expressed in the deed, proves it to have been voluntary. This is not conclusive upon the parties— but the real consideration may be proved. The court is referred to the cases of Sirowbridge vs. Cartlidge, 7 Watts Sf Searg. 394; 1 Sup. V. S. Dig. 731; Halstead’s Law of Ev. 209; 1 A. K. Marshall, 582; 1 J. J. Marshall, 389; 7 lb'. 562; 4 Dana, 525.</p> <p>3. The circuit court improperly excluded the depositions proving the real consideration paid for the land.</p> <p>Three points are presented by the record in-these causes.</p> <p>1. Was the conveyance from R. W. Davenport to his brother, George H. Davenport, fraudulent as to the creditors of R. W. Davenport ?</p> <p>2. Has George H. Davenport a lien upon the land conveyed to him for the satisfaction of the indebtedness of R. W. Davenport to him ?</p> <p>3. Did the court err in sustaining the exceptions to the depositions taken by appellant?</p> <p>It appears that R. W. Davenport was greatly indebted at the date of the conveyance to George H. Davenport, and although the consideration expressed in the deed, of one dollar, is sufficient to pass the title, as to creditors, the conveyance will be treated as voluntary and void. (Ward vs. Trotter, Sfc. 3 Mon. 3.) Conveyances which are merely voluntary, are void as to bona fide creditors whose debts then exist, as well as subsequent creditors. {Doyle vs. Sleeper, 1 Dana, 532-3.)</p> <p>As to the second point. Liens may arise in three ways: By implied contract — by the legal relation between the parties. If the conveyance was fraudulent and is void, it is difficult to perceive how title passed by the deed, and no lien was acquired as to the debts due by R. W. to G. II. Davenport, when there was no express or implied contract.</p> <p>Thirdly, the depositions were properly excluded. The consideration expressed in the deed is conclusive unless impeached for fraud or mistake, and cannot be controverted by other testimony. (Ilpne’s Rep. vs. Campbell, 6 Monroe, 291.) In that case this court said : “Some authorities have gone so far as to allow averment aud proof of another additional consideration.” Whether this last position is tenable, is by some authorities rendered questionable.— But whether it be or be not correct, the additional consideration proved must be one of a different character or quality, and not a simple increase of the same character added to the consideration named, such as when the conveyance said uone dollar,” to add thereto by inferior proof “owe thousand.” It cannot be lessened by proof, nor can it be increased by inferior evidence.</p>

Case 7. APPEAL FROM GARRARD CIRCUIT. Ord. Pet. The appellant insists upon a reversal of the judgment on the following grounds: 1. This court cannot judicially take notice of any act of assembly local in its character, unless it be given in evidence on the trial. (Rev. Statutes, p. 311, sec. 1.) 2. The subscription of Lackey is void and of no binding force, because there existed no such company as obligee at the date of the subscription. 3.

Case 8. Pet. Eq. APPEAL FROM CLAY CIRCUIT. Samuel Hibbard sold to Smith a tract of land, for which he w*as to be paid in installments ; he received the first installment, but retained the possession of the land for one year after he received the first installment. The vendor bound himself to convey the land described in the deed which John Hibbard had made to him, which he did.

<p>Case 9.</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>Pet. Eq.</p> <p>The appellants seek a specific execution of their contract of purchase, if a valid title can be made by the femes covert, and they are willing to convey if they have the power to do so. They together own fourteen thirty-fourths of the lot purchased by appellant.</p> <p>As to the interest of Mrs. De Kautzain. Her husband mortgaged his interest to appellants. The mortgage was foreclosed, and appellants purchased it. She offers to convey. Can she do so and divest herself of title — her husband being absent in California? Sec. 20 and 21, Revised Statutes, page 199, authorizes “married women to convey any estate they own.” The conveyance may be by the joint deed of husband and wife, or by a separate instrument if the husband has theretofore conveyed. The husband has conveyed in this case by a commissioner, which is effectual to pass any right he ever had. The statute does not say that the wife shall convey to the same person. Though it was not intended that there should arise any conflict between the deed of the husband and that of the wife, and is within the spirit of the statute, if she convey to the vendee of the vendee of the husband.</p> <p>As to the interest of Mrs. Kearny. It is a separate estate, and her husband not a necessary party. (Code of Practice, sec. 49.) She claims the right to convey without the consent of her husband or that of the court. She can certainly do so, unless restrained by ■the statute. (Sugden on Powers, 184-5.)</p> <p>There is no 'Clause restraining her unless it be found in Revised Statute, page 395, chap. 47, art. 4, sec. 17. The last clause of this section only applies to estates created since the Revised Statutes took effect. The first clause declares, “that if any estate be hereafter conveyed or devised for the separate use of a married woman, she shall not alienate it with or without the consent of her husband; but may do so when it is a gift, with the consent of the donor or his personal representative. It is insisted that where a power to sell is given, that alone is a sufficient consent of the donor, and no farther consent is necessary. It cannot be that where such consent to sell is given by the donor, that the personal representative, after the death of the donor, can defeat the sale by refusing consent. But Mrs. Kearny is a purchaser for valuable consideration, and chapter 47, Revised Statutes, after declaring that she shall not sell, with or without the consent of her husband, fails to point out any mode by which she may sell. So, if that chapter applies at all, there is no mode by which she can sell.</p> <p>Can Mrs. Kearny sell under the provisions of chap. 86, page 598-4 of the Revised Statutes? There may be doubt on this question. Sec. 4, page 595-6, requires the court ordering a sale under that chapter, to have the proceeds reinvested in land or slaves, “subject to the same uses, limitations, and trusts as the land or slaves sold were held.”</p> <p>This state of case could not have been in the contemplation of the legislature in the enactment of the Revised Statutes.</p> <p>It is insisted that the right of a married woman to sell her separate estate was not derived from any statute. It is in virtue of the common law. Sound policy requires its recognition, unless clearly prohibited by statute. As there exists doubt upon the questions involved, we submit them to the court.</p>

<p>Case 10.</p> <p>APPEAL FROM MADISON CIRCUIT.</p> <p>Ord. Pet.</p> <p>Argued — 1. That Stephen Walker, the testator, did not own the land in controversy, and consequently did not intend to devise it to his wife, and that it did not pass by his will. (Noland vs. Johnson, 5 J. J. Marshall, 351.)</p> <p>2. It is well settled that a latent ambiguity as to the person who shall take under a will, or as to the property embraced by the devise, may be explained by extrinsic parol proof. In Starki.e’s Ev., vol. 3, page 1020, it is said : “In the next case parol extrinsic evidence is admissible generally to give effect to a written instrument by applying it to its proper subject matter, and also for the purpose of removing presumptions arising from extrinsic facts which would otherwise obstruct such-application.”</p> <p>Tt is alwaj-'s necessary, as a matter of extrinsic evidence, to apply the terms of a written instrument to a particular subject matter. A difficulty occurs in this case; although the terms of the instrument are sufficiently definite and distinct, the objects to W'hich it is to be applied are not generally so certain, and when it is doubtful whether the description applies at all to the particular object pointed out by the evidence. The illustration most generally given of the operation of this rule is that of a description in a will of a devisee of an estate. Same author says : “So, if a person grant his manor of S. generally, and it appear that he has two manors of S.— South S. and North S. — parol evidence is admissible to show which was intended.” So, if one have two manors of the same name, levy a fine of one without distinguishing wffiich., parol evidence is admissible to show- which was meant- In page 1024 of the same author, it is said: “As an ambiguity arising from too great a generality of description may be removed by oral evidence, which constrains and confines and applies that description to a single object, although on a mere comparison of the terms with several objects they may be equally applicable to more than one.”</p> <p>Philips, in his treatise on Evidence, 410 to 416, gives many examples where latent ambiguities have been explained by parol extrinsic evidence. (See Tuder vs. Terrill, 2 Dana, 47; 2- Durnford Sf East., 209 to 218; Doe vs. Wükerson, same case, is referred to by Jarman on Wills, page 633, side page 747.) The true construction of the will on its face is, that the widow is to take for life the tract of land on which the mansion house stood, and in the event of her marriage she was to be narrowed down to one-third of the same tract.</p> <p>The proof in this case, and which was mainly introduced by Mrs. Walker, and the legality of which was not controverted in the circuit court, is amply sufficient under the authorities cited to show that the testator did not know that he owned the land in controversy, and did not claim it, and therefore did not intend to dispose of it by his will, and hence that the devise of his lands and mansion house is to be construed as only embracing the tract on which his mansion house stood in Bush’s claim. Believing the court will take this view of the subject, a brief notice only will be taken of the instructions given and refused by the circuit court.</p> <p>The court erred in so qualifying the instruction of appellant as to tell the jury that the adverse possession should be peaceable and uninterrupted. This is not the law.</p> <p>The only question in this case is, whether the land in controversy passed by the will of Stephen Walker to his widow. Of that it is believed there can be no doubt. 1. Because it is clear from the will that the testator did not intend to die intestate as to any part of his estate. 2. The terms used in the devise in respect to the land is sufficiently broad to cover all his lands. It would be doing great injustice to the intelligence of the testator to suppose that he did not know that he was the owner of the land in contest.</p>

Case 11. APPEAL FROM GRAYSON CIRCUIT. Pet. Eq. Case stated. Held: that a grantee may maintain the action for the injury he has sustained, when only a part of the land has been recovered. The right of action is on the privily of estate, not on contract.

Case 12. Ord. Pet. APPEAR FROM LOGAN CIRCUIT. Regarding the statements contained in the petition as true, the question is presented to this court, whether the plaintiffs are not entitled to relief.

<p>Case 13.</p> <p>APPEAL FROM MADISON CIRCUIT.</p> <p>Ord. Pet.</p> <p>1. The circuit court should have granted a new trial on the ground that the verdict was contrary to law and evidence, and because the damages assessed were excessive. The evidence shows that the actual injury did not exceed ten dollars, and there was no proof of recklessness or gross negligence.</p> <p>The evidence shows clearly that it was impossible to avoid the collision, from the fact that the stage and buggy were so close together, and the sudden stopping of the latter, without greatly endangering the lives of the passengers in and on the stage.</p> <p>Riley, the appellee, was moreover greatly in fault in suddenly stopping his buggy without any notice to the stage driver.</p> <p>2. The circuit court erred in refusing to permit the appellants to prove that Roswell had the reputation of a good stage driver. This was admissible, to show a proper degree of care on the part of the proprietors of the stages.</p> <p>3. The circuit court erred in instructing the jury, that if they found that Roswell was the servant of the other defendants, and drove the stage in and uppn Riley’s buggy, that the law was for Riley unless they believed that the injury was wholly unavoidable, or was superinduced by the misconduct of Riley; and in finding for Riley, they must give the actual injury he sustained, and may give exemplary damages at their discretion. This instruction, we insist, is not sanctioned by the law applicable to this case.— Its operation and effect is to authorize the jury to find exemplary damages if there had been the slightest neglect on the part of the driver, and though Riley may have been in fault, unless the injury was wrholly unavoidable. The court is referred to the pase of the Tanawanda R. R. Co. vs. Munger, reported in 5 Denio’s N. Y. Rep. p. 255, and 4 Comstock, 349, Supreme Court Rep. of New York, as in conflict with the instruction above. See, also, Chitty's Pleading, 1 East. 106; 2 Kent's Com. 259; 2 Rhode Island Rep. 404, where the court say: “Legally speaking, negligence is the want of that care which the law requires us to exercise, and which the law exacts as a duty. This may be due to one individual and not to another, and therefore negligence in fact is not always negligence in law.” Thus plainly showing that unlawful negligence is a relative term, and that one kind of negligence is illegal or culpable in one case according to the rights and circumstances of the parties, and is not so in another case. In Trow vs. Vermont Central R. R. Co. 24 Vermont Rep. 487, the court say “that the negligence of the defendant is proximate, and that of plaintiff remote, the action can then be sustained though the plaintiff is not entirely without fault.” In the case of Jar-man, ¿fc. vs. Funk, 7 B. Monroe, 538, which was a case of collision between steamboats, the court said: “The plaintiff was only bound, in case the collision became apparent, to use such reasonable means as might then have been in his power, to avoid it, or to mitigate its consequences; but it was the duty of the defendant to use all reasonable care and effort, not merely to prevent damage, but to prevent the collision.” This case show's that it is the duty of both parties to use reasonable care to prevent a collision, and that the extreme care required by the instructions of the court in this case is more than the law exacts.</p> <p>4. The law does not make a defendant liable, in a case like this, to exemplary damages for the slightest neglect, or the want of extreme vigilance, caution and exertion, all which is required by the instruction of the court, and rendering appellants liable at the discretion of the jury, unless the collision was wholly unavoidable.</p> <p>We insist that exemplary damages should not be given in any case, unless the act of the defendant was willful, malicious, or wanton, or there was gross negligence. (3 Star hie Ev., title Trespass, p. 1450; Day vs. Woodworth, 13 Howard, 363; Johnson vs. Maddox, 8 B. Monroe, 430; Sedgwick on Damages, 391; Greenleaf Ev. sec. 253 ; 2 lb. sec. 266 to 272.)</p> <p>The second instruction given by the court is liable to the same objection. It also requires extreme care to avoid exemplary damages.</p> <p>The instructions given at the instance of the defendants do not correct the errors complained of. If they be inconsistent, such inconsistency is calculated to confuse the jury, and create a doubt as to which is the true rule of their action. (Clay vs. Miller, 3 Monroe, 89; Tate vs. Parish, 3 lb. 327; Gregory vs. Ford, 5 B. Monroe, 472-3.)</p> <p>The jury and the judge of the circuit court heard the testimony on both sides, knew the parties, and decided the case in the only way in which we think they could have decided it, that the collision was the result of gross carelessness and misconduct on the part of the stage driver.</p> <p>The Revised Statutes lay down this rule to be observed by all vehicles running on any turnpike road —“when a fast vehicle overtakes one of slower movement, the latter shall bear to the right, so as to permit the other to pass its left or near side.” In this case, according to all the testimony, the appellee was on the right of the road in his place. The turnpike road where the collision took place was nearly level, the descent being only one and a quarter degrees, or about three feet in one hundred yards. The appellee’s buggy had stopped in full view of the stage, on the right side of the road, leaving eighteen feet of graded — upwards of twelve feet of McAdamized — road to the left — ample space for two stages to pass abreast. In regard to these particulars there is no contrariety of testimony. In regard to the distance between the stage and buggy when the latter stopped, and the conduct of Roswell, the driver, after the collision, there was some confliction. But the testimony authorizes the conclusion that the distance was one hundred yards, and that the conduct of the driver was as charged in the petition — “that of a brute and a ruffian” — and if the jury took the view of the case which we have, and which we think supported by the testimony, then their finding was right, and the damages not only not excessive, but low.— The appellee was in no fault. He had, as the law directs, been leaving and running on the right side of the road, leaving two-thirds of the road to the left. The conduct of the stage driver was grossly negligent and wholly inexcusable, and there is no ground to doubt but that with ordinary skill and care he could have passed the buggy in perfect safety-</p> <p>The appellee was not in fault in any degree. He had a right to stop, and stop where he did stop ; his business was to mind his own carriage, and hearing the stage rapidly approaching, to take such position that it could safely pass on the left, if the driver, as he was bound to presume, knew his duty. Appellee was not bound to give notice of his intention to stop, nor was he bound,- if ordered by the stage driver, to get out of the way farther than the law required.— The United States mail stages have no greater privileges than other vehicles. The stage was going rapidly, and instead of bearing to the left it bore to the right, and, as one witness said, fulled the wrong oar to avoid collision, and as the track of the stage showed.</p> <p>It is denied that the court erred in its exposition oi the law to the jury. All the instructions, taken together, were favorable to the appellants. The second, granted at the instance of the counsel of appellee, was the only one obj ected to, which is right if taken in connection with the first. For authority as to the amount of care and prudence on the part of drivers in the management of vehicles, the court is referred' to the case of Ingolls vs. Bills, Syc. 9 Metcalfe, 1, where the court seems to have examined the question with great care, and commented upon many of the leading cases. Their conclusion is, “that carriers of passengers in stages are bound to use the utmost care and dilligence in providing safe coaches, hands, horses and coachmen, and having thus provided the means, they are bound to use the utmost care and dilligence in managing, directing and using those means to guard against injury;” and most of the leading cases sustain the same view, as Chester vs. Griggs, 2 Camp-hell, 79 ; Ashur vs. Muren, 2 Esp. R. 533.</p> <p>The sole question in the case is, was the injury produced by the misconduct of the stage driver without fault on the part of the appellee?— If so, then the appellants are liable. The court is referred to Blythe vs. Topham, Cro. Ja. 158 ; Bush vs. Brenard,! Cowen, 78; Howland vs. Vincent, 10 Metcalfe, 371; Mungcr vs. Tonawanda R. R. Co., 4 Conn. 349</p> <p>We think the judgment should not be disturbed.</p>

<p>1. A separate estate in slaves may be secured to a married woman by parol.</p> <p>2. A married woman may, with money coming to her in her own right, before the husband gets it into his possession, with the husband’s consent, vest it in property to be held to her separate use. And though the legal title may vest in the husband, he will hold it as a trustee, to the separate use of the wife.</p> <p>3. In order to protect property in which the wife acquires a separate estate, by parol contract, where the title vests in the husband, from liability for his debts, where it remains in his possession for five years, it is necessary that the character of his holding be declared by writing and duly recorded; otherwise it will be liable for the husband’s debts.</p> <p>4. The holding a slave thus sold or given to the wife for a less time than five years will not render it liable for the husband’s debts.</p> <p>[The facts of the case are given in the opinion of the court. — Rep.]</p> <p>1. A separate estate in slaves may be secured to a married woman by parol.</p> <p>2. A married woman may, with money coming to her in her own right, before the husband gets it into his possession, with the husband’s consent, vest it in property to be 'held to her separate use. And though the legal titl e may vest in the husband, he will hold it as a trustee, to the separate use of the wife.</p> <p>3. In order to protect property in which the wife acquires a separate estate by parol contract, where the title vests in the husband, from liability for his debts, where it remains in his possession for five years it is necessary that the character of his holding be declared by writing and duly recorded; otherwise it will be liable for the husband’s debts.</p> <p>4. The holding a slave thus Bold or given to the wife for a less time than five years will not render it liable for the husband's debts.</p>

Case 15. Ord. Pet. APPEAL FROM CHRISTIAN CIRCUIT. This suit is brought by Johnson and wife to recover the value of a slave alledged to be the property of the wife, which it is said the appellee converted to his own use.

Case 16. Ord. Pet. APPEAR FROM LOGAN CIRCUIT. Argued: 1. That the verdict of the jury was clearly against the weight of the testimony. 2. The circuit court erred in rejecting the testimony offered by appellants to show that their habit was when a slave was hired by them to be employed in a particular business, to state that fact in the note or obligation for the hire. 3. The court erred in its instructions to the jury, given at the instance of the appellee.

Case 17. Pet. Eq. APPEAL FROM M’CRACKEN CIRCUIT. Argued — 1. That Davis had lost his lien upon the land for the payment of the balance of the consideration, if any was unpaid, by conveying without any reservation of lien on the face of the deed. {Rev. Stat. sec. 2&,page 543.) 2. That it was improper to decree-the payment by Rudolph of the balance due from him to Neal, as he had disclosed in his answer that Neal had sold his note to a third person. 1.

<p>1. The court of appeals have entertained jurisdiction by consent of parties in some cases where the decree would otherwise be deemed interlocutory. There are exceptions to the general rule, and in every such case some right in controversy has been determined, and the power of the inferior court over the decree or judgment merely continued to ascertain the extent of such right. (4 Itionroe, 415; 6 J. J. Marshall, 354; 1 B. Monroe, 150.)</p> <p>2. An order of a circuit court overruling a motion to discharge an attachment is not such a final judgment as authorizes an appeal, even though the parties consent to the appeal.</p> <p>[The facts of the case are set out in the opinion of the Coui’t. — Rep.]</p> <p>1. The court of appeals have entertained jurisdiction by consent of parties in some cases where the decree would otherwise be deemed interlocutory. These are exceptions to the general rule, and in every such, caso some right in controversy has been determined,.and the power of the inferior court over the decree or judgment merely continued to ascertain the extent of such right. (4 Monroe, 415; 6 3.3. Marshall, 354; 1 B. Monroe, 150.)</p> <p>2 An order of a circuit court overruling amotion to discharge an attachment is not such a final judgment as authorizes an appeal, even tho’ the parties consent to the apgpeal.</p>

Case 19. Pet. Eq. APPEAL FROM LEWIS CIRCUIT. 1. The court erred in excluding from the jury the testimony of Fitch in regard to the letters which purported to have been written by the appellee. They were in possession of the negro and could not be produced. They were written to Fitch whilst the negro was living with him, and making inquiries about him. And the same is true in regard to the correspondence with Stricklett.

Case 20. Ord. Pet. APPEAL FROM GREENUP CIRCUIT. This is rather a novel case, arising under the provisions of the Revised Statutes. By the 16th section of the act concerning guardians, a foreign guardian may obtain the authority of a county court in Kentucky, to sue for, recover and remove the effects of his-wards to another state.

<p>Case 21.</p> <p>Ord. Pet.</p> <p>APPEAL FROM JEFFERSON CIRCUIT.</p> <p>The evidence clearly shows a failure of consideration of the note sued on. And that the maker of the note, when it was delivered, was ignorant of such failure, though he made it payable at a future day, that he might inform himself of the facts, yet from the testimony of his witness it was out of abundant caution, not from any reasonable apprehension that all was not right, for witness Smith had confidence in McCoy, the payee.</p> <p>If the maker of a note may be allowed to set up a defense which was unknown to him at the date of the note, surely he should be allowed to assert it against a subsequent verbal promise, made in good faith, to pay the note. That the former can be done is decided. (Clay vs. McGlanahan, 5 B. Monroe, 241; Pyle vs. Shannon, Hard. 53.) Smith did not induce the assignee to buy the note; he only remarked, when appealed to shortly after the execution of the note, that he would pay it at maturity. The face of the note said this much; he said no more. He then had no reason to suspect the fraud practiced on him. If a party knowing of the existence of a specific equity against the payment of a debt, by failing to mention it waive the right to assert it against an assignee, yet he is not precluded from asserting another equity that was unknown to him at the time. (Clay vs. McClanahan, supra; Honoré vs. Dougherty, 4 Bibb, 280.) It is not pretended that Smith had any knowledge of the equity here asserted. He was ignorant whether all vims right or not, and wished to be fully informed before paying. What was said to the assignee could not have mislead him; it was barely an assurance of the genuineness of the signature of the note, negotiable on its face.</p> <p>The cases where the maker has been precluded from a defense against a note in the hands of the assignee, are cases where he has been active in inducing the purchase of the note; not where he has been merely passive.</p> <p>So long as McCoy held the note, Smith had a valid defense against it. He has done no act which has cut off that right of defense. He never requested or encouraged the assignee to buy it; never waived his right of defense; received no benefit by forbearance.</p> <p>The suit vims instituted in the Jefferson circuit court by Stone, as assignee of McCoy, on a note executed by appellant Smith to McCoy, and by McCoy assigned to Stone.</p> <p>Smith pleads a failure of consideration, and attempts to show by witness Atchison that the note was executed for McCoy’s interest in certain land warrants by the government of the state of Texas to Smith & McCoy, which were afterwards annulled and vacated by that government. This is Smith’s defense.</p> <p>Stone relies on the fact that he was induced to trade for and take the note from McCoy on the representations of Smith that it was all right, and would be paid at maturity. The witness for Stone, Mr. McConathy, states that he was acting as agent for Stone, at his warehouse in the city of Louisville, in the sale of carriages and buggies. That McCoy applied at the house to purchase a buggy from Stone ; offered to pay same with the note on Smith; that he, witness, before the trade was consummated, went with the note to Smith, told him of the proffered trade, and asked if Stone would be safe in trading for the note, when Smith told witness that the note was all right, and would be paid at maturity. Upon this recommendation and assurance Stone purchased the note. On this state of facts we contend that Smith is estopped from relying on his plea. He waived any equity he had against the note so far as Stone is concerned, by inducing him to purchase; and he should be compelled to pay the note. We refer the court to the cases of Barnes, fyc. vs West, 3 Monroe, page 169; Morrison’s adm’r. vs. Beckwith, 4 Monroe, 73. And many other cases might be cited. The point is so clear, in our judgment, we are not disposed to trouble the court.</p> <p>It will be perceived that the record before the court does not purport to contain all the evidence adduced on the trial in the court below. From this cause alone we presume the appeal will be dismissed. Otherwise, however, we ask an affirmance of the judgment below.</p>

<p>1. Retrospective legislation is not expressly prohibited by either the constitution of the United States or of Kentucky, unless it impairs the obligation of a contract. A statute giving the right of appeal in a civil case, where none existed before, is not an ex post facto law. (Calder vs. Ball, 3 Valias, 386.)</p> <p>2. Though the constitution secures the right of the citizen to a just compensation for his property before it shall be taken for public use, yet the legislature has the right to prescribe the mode in which that compensation shall be ascertained and determined.</p> <p>3. The compensation which is to be paid to the owner of land taken for public use, is the actual value in money of the property taken from him; not to be diminished by any speculative advantage he may derive from its appropriation to the public use.</p> <p>4. The value of the land proposed to be taken from the owner, considering its relative position to his other land, and the other circumstances which may diminish or enhance that value, are the proper considerations to be regarded in ascertaining that value.</p> <p>5. So far as the 38th section of the act of 1851, (2 vol. Ses. Acts, 297,) conflicts with the constitution in that provision, which secures to. the owner a just compensation for his property when taken for public use, it is wholly inoperative and void.</p> <p>6 Where more is claimed by the owner than the value of his property, as consequential damages, the advantages to him may be taken into the estimate and set-off against such claim for consequential damages.</p> <p>[The facts of the case are given in the opinion of the court. — Rep.}</p> <p>1. Retrospective legislation is not expressly prohibited by either the constitution of the United States or of Kentucky, unless it impairs the obligation of a contract. A statute giving the right of appealin a civil case.where nono existed before, is not an ex post facto law (Calder vs. Bull, 3 Dallas, 386.)</p> <p>2. Though the constitution secures the right of the citizen t» a just compensation for his property before it shall be taken for public use; yet the legislature has the right to prescribe the mode in which that compensation shall be ascertained and determined.</p> <p>3. The comppsatfen which is t.o be paid to tfie owner- of fend taken for public use, is the actual value in money of the Property taken from him; not to.b.e diminished by any speculative advantage he may derive from its appropriation to the public use.</p> <p>4. The value of the land proposed to be taken from owner, considering relative position to bis othercircumstances which may diminish or enhance that value, are the proper considerations to be regarded in ascertaining that value.</p> <p>5. So far as the 38th section of the act of 1851,(2 vol. Sea. Acta, 297,) contacts wi th the constitution in that provision, which secures to the owner a just compensation for his property when tafeen for public use, it is wholly inoperative and void.</p> <p>6 Where more fs claimed by the owner than the value of his property,as consequential damages, the advantages to him nniy be taken into the estimate and set-off against such claim for consequential damages.</p>

Case 23. APPEAL FROM MASON CIRCUIT. Ord. Pet. The appellants resist a recovery against them individually, upon the ground that the company is liable, and not the officers acting under and by their authority in the discharge of a lawful duty; and that the party must pursue the remedy pointed out by the charter to ascertain and recover the value of the land.

Case 23. APPEAL FROM LOGAN CIRCUIT. Pet. Eq. The question presented for adjudication in this case is whether, under the facts stated in the petition, George W. Gray, as the pretended husband of Sarah G. Gray, has a right to hold, as tenant by courtesy, the lands of said Sarah G. Gray during his own life, against the claim of her heirs-at-law, of whom the plaintiff is one; and to withhold from the heirs of said Sarah G. Gray all the slaves, and increase, which belonged to her…

Case 24. APPEAL FROM CHRISTIAN CIRCUIT. Ord. Pet. 1. The facts argued in the case of Gheyney vs. Hoozer, 9 B. Monroe, 330, are materially different from the facts in this case. In that case, and that of Glass vs. Sanders, the question of legislative power received an elaborate discussion at the bar orally, as well as by written brief of counsel. It will not be necessary to do more than refer to those briefs. 2.

Case 25. APPEAL FROM FAYETTE CIRCUIT. Ord. Pet. The only question in the case is, what was the effect of Winn’s death upon the levy of the execution in his favor, against Robards, after the levy thereof? We contend that it abated the execution. We have, for this, conclusive authority. The earliest case is that of Buckner vs. Terrill, Lilt. Sel.

<p>Dealing in bills of exchange, without a license, according to the Rev. Stat., art. i, p. 556, is neithér malum in se, nor malum prohibitum. Contracts for their sale and purchase are not prohibited by the statute, and are, therefore, valid and binding, though the purchaser or seller may have incurred a penalty.</p> <p>[The facts of the case are stated in the opinion of the court. — Rep.]</p> <p>Dealing in bills of exchange without a license, according to the Ree.Stat., art. 4, page 556, is neitherm malum in se, nor malum, prohibitum. Contracts for their eale and purchase are not prohibited by the statute, and are therefore valid and binding, though the purchaser or seller may have incurred a penalty.</p>

Case 27. APPEAL FROM JEFFERSON CIRCUIT. Ord. Pet. This case was heretofore in this court. In the opinion then rendered I understand'the court to have decided these three propositions: 1st. That the owner of the boat was liable for injury to plaintiff’s log-way, unless the injuiy happened as incident to lawful right of navigation. 2d. That defendant had no right to land his boat, unnecessarily, at a bank appropriated to private use.

Case 28. In Chancery. APPEALS FROM LOIHSV1LLE CHANCERY COURT. The appellant, Swigert, complains that the chancellor erred in not applying the proceeds of the sale of the Boone lands to the discharge of the debt due to Pope, and the debt upon which Thomas A. Marshall, John Joyes, and James Birney were sureties; and what remained of those debts should have been first paid out of the proceeds of the sale of Rose-dale, and the remainder decreed to him. 1.

Case 29. Appeals from jessamine circuit. Argued: 1. That the decree in the chancery causes was erroneous — 1. Held: as due to himself, the notes relied on by counsel as an advance payment, they would have been exhibited and cancelled when the writings were signed, and not retained by him; and, also, that they had been paid with the means of J. Bibb, as his partner or agent; and if they had not been so paid off, W. M. Bibb would not have given the…

Case 30. Felony. APPEAL FROM BARREN CIRCUIT. 1. The circuit court erred in permitting Mrs. Bailey to give in evidence to the jury the declarations of Bedford Bailey as dying declarations.

Case 31. APPEAL FROM BOYLE CIRCUIT. Pet. Eq. S. F. Southern, on the first of April, 1852, drew a bill of exchange on Hazard & Green, of New Orleans, for $500, payable to John M. Scott, the appellant, and by him indorsed, and then indorsed by appellee, Doneghy, and sold to the Bank of Kentucky. The bill was protested for non-acceptance, and suit brought by the bank against Scott and Doneghy.

<p>Case 32.</p> <p>APPEAL FROM GARRARD CIRCUIT.</p> <p>Ord. Pet.</p> <p>The demise in the declaration of ejectment was laid in the names of many persons, none of whom, except two, were plaintiffs when this case for mesne profits was tried. We insist that each party alike is concluded by the demise and the judgment in ejectment, and these conclusively showing, in this case, a joint title in all the lessors, and the commencement of the term on April 1, 1850, the two remaining plaintiffs cannot be adjudged to have been owners before April 1, 1850, nor to a greater extent than their ratio of joint interest with all the lessors. Therefore the circuit judge erred: 1. In not restricting the recovery in this case to three years, running from the date of the demise to the commencement of this suit; and, 2, In overruling the instruction for restricting the recovery of the two plaintiffs to their said ratio. The plaintiffs tried to correct the first error by remitting all except for three years. But did this cure it? Had the investigation been confined to the last three years, the verdict, for aught this court can know, might have been proportionably less than it was. But the second error was not attempted to be cured; and it is manifest that if the entire ownership was entitled to recover $2,700, two of many part owners were not entitled to as much as even $1,000. And can they be entitled to more than their own interest? Would their recovery bar the other lessors from maintaining their action for mesne profits for the same time?</p> <p>Besides, were there no other objections, the proof as to the renting, the repairs, and other improvements, show beyond doubt, that for even all the lessors, the verdict was too high — much higher than the evidence authorized.</p> <p>Argued that the judgment should be reversed on the following grounds:</p> <p>1. The circuit court erred in giving the first instruction asked for by the plaintiff, because it assumes, with the modification attached thereto by the court, that the plaintiff was entitled to recover rents for five years, when the period between the lease and the recovery of the judgment was only about three years. If a plaintiff in an action to recover mesne profits, seeks a recovery for rents from a period anterior to the date of the demise laid in the declaration, he must exhibit and show title and a right to enter anterior to that time. No such evidence was adduced on the trial in this case.</p> <p>2. The right to recover for fees of counsel is not denied, but there must be evidence that the plaintiff paid such fees, or is bound to do so. There is no such evidence in this record, and the instruction was wrong on that point. {Doe, on demise of Augusta, vs. Perkins, 8 B. Monroe, 198.)</p> <p>3. The court erred in refusing to instruct the jury, as moved by defendants: 1. In not instructing the jury that they could not give damages for any period prior to the first of April, 1850, the date of the demise in the declaration. 2. In refusing to tell the jury that they could only give damages to the plaintiffs for the aggregate amount of their interest in the land.</p> <p>The action to recover mesne profits must be in the names of the real parties in interest. The idea of introducing the name of John Doe in an action to recover mesne profits, since the adoption of the Code of Practice, is foreign to the letter and spirit of that work. “Section 33. Every action must be prosecuted in the name of the real party in interest, except as provided in section 60.” The exception does not embrace this case.</p> <p>4. It is not supposed that the remitter of part of the damages cures the errors complained of. Neither the parties nor the court can know upon what basis the jury acted in the assessment of damages. A defective verdict, under the evidence given in the case, cannot be cured by a remitter of part of the damages.</p> <p>5. No objection was made in the circuit court to the motion for a new trial on the ground that it came too late, a.nd it cannot avail in this court.</p> <p>1. The motion for a new trial was not made in proper time. The cause was decided on the third day of the term, and the motion made on the seventh. More than three days had then elapsed, and the judgment should be affirmed. {Ray vs. Harris, 15. Ben. Monroe, 62.)</p> <p>2. If any error occurred for which a new trial might have been granted, it was cured by the remitter which was entered of part of the damages.</p> <p>It appears that one undivided half of the 1,100 acres of land was recovered in the ejectment; that one-half of the whole tract was cleared and in cultivation from 1846 to 1853, inclusive, and that it was worth two dollars per acre; that the soil and improvements had been injured one dollar per acre per annum; that the pasture land was worth $90 per annum, making in the aggregate $1,740 for rents and waste; and that the counsel fees were worth $200. For three years this would make an aggregate of $5,220; half of which is $2,610, to which add fees of counsel in the ejectment suit, $200, and it makes the sum of $2,810 — exceeding the judgment after the remitter. Add to this one-sixth of a year, from the 1st April to the 31st May, 1853, $146, and the judgment is for about $180 less than it should have been, and Masterson has no right to complain.</p> <p>All the instructions asked by appellant related to the measure of damages; and if the damages, after the remitter, are not too great, and it is insisted they are not, then he has no right to complain. The object of the law is the administration of justice, and no injustice is done to appellant.</p>

<p>1. To authorize a county court to make a subscription in aid of the construction of the Lexington and Big Sandy railroad, under the statute on that subject, (Session Acts of 1851-2, page 786,) it was necessary that the election for ascertaining the sense of the voters of the county as to the making of such subscription should have been ordered by the county court, on the application of the officers of the railroad company. And a vote taken in any other way did not authorize the subscription, by the county court, of stock in said railroad.</p> <p>2. The payment by the county court to the officers who held the election without authority, could not give validity to an election which was illegal.</p> <p>[The facts of the case are stated in the opinion of the court. — Rep.]</p> <p>1. To authorize a c’ty court to make a subscription in aid »f the construction of the Lexington and Big Sandy railroad, under the statute on that subject, (Sess. Acts of 1851-2, 186.) it was necessary that the election for ascertaining the sense of the voters of the county as to the makingofsuch subscription should have been ordered by the c’ty court, on the application of the officers of the railroad company. And a vote taken in any other way did not authorize the subscription, by the county court, of stock in said railroad.</p> <p>2. The payment, by the e’f.y court to the officers who held the election without authority, could not give validity to an election which was illegal.</p>

Case 34. APPEAL FROM LOUISVILLE CHANCERY COURT. Pet. Eq. This was a petition in equity, filed by Henry R. Tunstall against Emily A. Sutton, who had a life estate, and others who were entitled to the remainder, some of the latter being non-residents of the state, to recover one hundred dollars claimed to be due to the plaintiff for capturing George, a negro boy slave about six years old, who had been taken from the owners in Kentucky by his father, and conveyed to Cincinnati…

Case 35. APPEAL FROM MARION CIRCUIT. Ord. Pet. The appellants sold to the appellees a wagon and horse at $40, and lightning rods to an amount sufficient to make the sum of $106 40, and took their note, on which they brought this suit. The appellees deny their liability upon the note except for the sum of $40, for which they agree judgment may be entered, which the appellants refuse to accept.

Case 36. APPEAL FROM LOUISVILLE CHANCERY COURT. Pet. Eq. Case stated. This suit was brought by Bennett & Co. against Devlin & Whelan, Bolton, Kelly, Ball and Criss, attaching some land and stock in the Texas Land and Emigration Company, of defendant Bolton, and some real property in Louisville alledged to belong to Devlin, to satisfy four notes executed in 1843, payable in six, twelve, eighteen and twenty-four months after date.

Case 37. Pet. Eq. APPEAL FROM LOUISVILLE CHANCERY COURT. The return of the executions “satisfied,” destroyed the lien created by the levy, and while the return stands no claim can be founded on the levy. By the return the sheriff has made himself responsible to the plaintiffs in the executions.

Case 38. Pet. Eq. APPEAL PROM LOUISVILLE CHANCERY COURT. Argued : That a fair construction of the statute authorizing divorces, (Revised Statutes, 390,) the allegations of the petition and proof in the case required that the appellant should have been divorced by the chancellor.

Case 39. Ord. Pet. APPEAR FROM HOPKINS CIRCUIT. Upon the facts in this case the circuit court instructed the jury that the title of the negroes in controversy was in Henry Rudy’s administrator, and that the statute of limitations commenced running from the sale to E. W. R. Woolfolk, and that the possession under that sale barred all right to recover under the deed of trust.

Case 40. APPEAL FROM MADISON CIRCUIT. Pet. Eq. The circuit court erred in several particulars, in ruling the law of the case, and in refusing a new trial. 1. The plaintiffs are the heirs at law of Samuel Tudor, who was a son of Valentine Tudor, the testator, who died before his father.

Case 41. Ord. Pet. APPEAL FROM KENTON CIRCUIT. Argued: 1. The promise, as set out in the plaintiff’s petition, not less than the proof as developed in the record, makes out a strong case against public policy, and the integrity of a proper administration of a public office. All such promises are null and void.

Case 42. APPEAL FROM GARRARD CIRCUIT. Felony. No brief on file. The grand jury for Garrard county, empannelled at the November term, 1855, of the circuit court, found an indictment against John Comely for the murder of Stephen Spratt — “a true bill.” The offense was charged to have been committed the 6th of August, 1855, by shooting Spratt with a pistol.

Case 43. Ord. Pet. APPEAR FROM HOPKINS CIRCUIT. Relied on the following grounds for a reversal of the judgment: 1. The court improperly admitted the depositions of Hughes and Waggoner, who lived in an adjoining county, to be read to the jury, without proof of their absence from the state, or their inability to attend court. 2. In not excluding the deposition of Waggoner on account of leading questions therein. 3.

<p>1. A stockholder in a corporation may deal with the company as an individual, and become a creditor as any other individual, and may be secured as a preferred creditor in an assignment by the corporation, without, on that account, incurring the imputation of fraud.</p> <p>2. A corporation is not justifiable in treating as profits, subject to be divided, premiums received upon unexpired risks, when it had not a fund sufficient, independent thereof, to meet all liabilities that might accrue on the pending risks. (6 Paige, 486; 7 lb. 198.) And dividends thus made may be reclaimed by the corporation.</p> <p>3. Dividends declared by the directors, and received by the stockholders, maybe reclaimed by the directors, if illegally declared under a misapprehension of the right to declare them; and if there be an assignment by the corporation to a trustee, such right to reclaim dividends improperly declared and paid passes to the assignee, if the terms of the assignment are sufficiently comprehensive to embrace them.</p> <p>4. Express continuing trusts, which are exclusively cognizable in chancery, are not embraced by the statute of limitations; but where there is a legal responsibility, and a trust by implication, the statute may be relied on with effect. (Dudley vs. Price’s adm’r, 10 B. Monroe, 84; 3 J. C. R. 216; 5 lb. 531; 12 Vez. 87; Story’s Eg., sec. 1252; 7 J.C. R 89; 5 Dana, 199; 16 Searg. Rawle, 379.)</p> <p>5. Beneficiaries in a deed of trust, having funds of the assignor in their hands, may retain, so far as is necessary to secure them for advances made, or personal liabilities incurred, as agent of the assignor, and liabilities incurred before notice of the assignment.</p> <p>[The facts of the case appear in the opinion of the court. — Rep.]</p> <p>[This opinion was delivered 23d January, 1856, but suspended by a petition for a re-hearing, which was overruled. — Ref.J</p> <p>1. A stockholder in a corporation may deal with the company as an individual, and become a creditor as any other individual, and may be secured as a preferred creditor in an assignment by the corporation, without, on that account, incurring the imputation of fraud.</p> <p>2. A corporation is not justifiable in treating as profits, subject to be divided,premiums received upon nnexpired risks, when it had not a fund sufficient, independ ent thereof, to meet all liabilities that might acerueon the pending risks. (6 Paige, 486; 7 lb. 198.) And dividends thus made maybe reclaimed by the corporation.</p> <p>3. Dividends declared by the directors, and received by the s t o e k h olders, maybe reclaimed by the directors, if illegally declared under a misapprehension of the right to declare them; and if there be an¡ assignment by the corporation to a trustee, such right to reclaim dividends improperly declared and paid passes to the assignee, if the terms of the assignment are sufficiently comprehensive to embrace them.</p> <p>4. Express continuing trusts, which are exclusively cognizable in chancery, are not embraced by the statute of limitations; but where there is a legal responsibility,and atrust by implication, the statute may be relied on with effect. (Dudley es. Price’s adm., 10 B. Mon. 84; 3J. G. R. 216; 5 lb. 531; 12 Vex. 87; Story’s Eg., sec. 1252; 7 J. C. R. 89; 5 Dana, 199; 16 Searg. S¡ Rawle, 379.)</p> <p>Where the remedy is at Haw as well as in chancery, the chancellor applies the statute of limitations.</p> <p>5. Beneficiaries in a deed of trust, having funds of the assignor in their hands, may retain, so far as is necessary to secure them for advances made, or personal liabilities incurred, as agent of the assignor, and liabilities incurred before notice of the assignment.</p>

<p>Case 2.</p> <p>APPEAL FROM FRANKLIN CIRCUIT.</p> <p>Pet. Eq</p> <p>T. S. Theobald, a former keeper of the penitentiary, brought this suit against “the commissioners of the sinking fund,” to recover from them $1,635 89, which sum he alledges he overpaid them beyond what they were entitled to receive under the legislative act of February, 1839, which gave them, during the plaintiff’s last term of office, to-wit, from 1839 to 1844, one-half of the net profits of the penitentiary, to be annually settled with and paid to them, the keeper himself being entitled to retain, for Ms own compensation, the other half of the profits. The plaintiff states that he did make annual settlements with the commissioners, as required by the act, and did pay over to them, annually, what they were entitled to receive. And the foundation of his claim against them is understood to be in substance this, that at the expiration of his official term, in March, 1844, when, according to the terms of the act under which he was appointed, the property and assets belonging to the penitentiary, after payment of its debts, and returning to the state the capital of $25,000, which had been loaned or advanced to the keeper, were to be equally divided between the commonwealth and him; that a valuation and disposition of said property and assets were accordingly made, under the special authority of an act of March, 1843, and according to the results of this valuation, and of the comparison authorized by the act of 1839, under which Theobald received the office, and directed by the act of March, 1843, between the value of certain property on hand when the term of office commenced, and of the same or like species on hand at its expiration, the keeper was to be credited or charged with the difference, as there might be an excess or deficit at the end of the term. And because, on a statement of the accounts based on this valuation, and including, of course, the annual payments to the commissioners, the commonwealth appeared to have received $1,635 89 more than she was entitled to, and the keeper that much less than his share, the attempt is made to coerce that sum from the commissioners of the sinking fund, with whom the keeper had made annual settlements, and to whom he had made annual payments founded on those settlements, which were themselves based upon accounts kept in the books of the penitentiary, and under the direction, or at least under the inspection, of the keeper, who must therefore be presumed to have understood them when he made his annual settlements and payments. If he supposed that the amounts to be received by the commissioners of the sinking fund, upon these annual settlements and payments, were to be affected by the condition in which the property and assets of the penitentiary might actually be, or might be estimated to be, at the end of the term, it was his duty and his interest to have due allowance made in the settlements for all probable contingencies. But this claim is clearly an afterthought.</p> <p>By the act under which Theobald was elected keeper in 1839, he was to conduct the penitentiary, have possession of its property, control its operations, and manage its affairs, for the joint benefit of the commonwealth and himself, for the term of five years. They were, in effect, partners in the profits; and one of the terms of the partnership was that Theobald, the active partner, should annually settle with the commsssioners of the sinking fund, and pay to them the profits to which the commonwealth should be entitled'.</p> <p>Let it be supposed that the commissioners of the sinking fund were a private corporation, having and pursuing distinct interests of its own or of its members, and that this act, containing the terms of the joint interest or partnership in the profits of the penitentiary, of which the commonwealth was to have one-half and the keeper the other, had, as a means of paying a debt of the commonwealth to this corporation, or for some other sufficient and proper consideration or motive, inserted a mutual stipulation by the partners that the keeper of the penitentiary, as one of them, should, on a fixed day in each year, settle with this corporation, and pay to it the commonwealth’s share, or one-half of the profits, would not this necessarily mean the current and apparent profits? Could it refer to anything unknown, and which not appearing nor being forseen could not be included in the settlement? Suppose then that after the keeper, in pursuance of his contract, had year after year regularly settled or reported a balance of profits, and paid to this corporation one-half as the share of the commonwealth, charging her of course with these payments, for which she would in turn be credited by the corporation which received them, it should, upon the final close and settlement of the partnership, in accordance with all of its terms providing for that event, appear that the profits had been less than was supposed, or that thei'e had been a loss, or that by reason of increased advanees on the part of the keeper, the share of the commonwealth was less than she had received' through the corporation to which payments were made on account of her share, is it in point of reason and law conceivable that the corporation referred to would or could be involved in any of the consequences of such a result? Whether, as between the partners, the apparent result was just or unjust, whether it was accordant with the real state of things, or was brought about by excessive valuations, entitling the keeper to excessive credits, it would be a matter exclusively between the keeper on the one side and the commonwealth on the other. And even if the keeper, by mistake, had over-estimated the profits, and thus overpaid the share of the commonwealth, his right of reclamation would be against the commonwealth alone, unless the third party, who received the benefit, had by fraud or other fault been instrumental in producing the mistake, or was at least shown to have been cognizant of it; or if, because the third party participated in the settlements on which the payments were made, he might possibly be held liable to make good the mistake, which is not admitted, it seems, at least to be requisite that the mistake should be shown to have been committed in the very settlements to which he was a party. But here there is not even an allegation of such mistake ; nor is there any such particularity of statement or proof, as is universally required, to authorize the opening of a settlement, and the readjustment of the matters involved upon their original merits. But the allegation is that the plaintiff paid to the defendant $1,685 89 more than, under the provisions of the act, should have been paid, and that the defendant owes him that sum with interest. The proof relied on is a decree of the general court, based upon and virtually confirming the’commissioners’ report, which shewed that balance against the commonwealth, in a suit for a settlement, &c., brought in the name of the commonwealth against Theobald ; which report was itself based upon the valuation before referred to as being provided for by the act of 1843. This is manifested by the opinion of this court affirming said decree, and which is also referred to in the petition. (See Commonwealth vs. Theobald, 11/A B. Monroe, 223.) That opinion shows explicitly that the report was based upon the valuation, and that the affirmance or reversal of the decree was understood to depend not simply upon the correctness of the valuation, but upon its validity and obligation upon the parties. And the court conceding that the valuation may have been too high, and that the valuers may have adopted an improper criterion for making it, determined, on the ground of extrinsic facts, that it should be deemed valid and obligatory, and affirmed the decree, without any further intimation as to the merits of the case, or the justice of the valuation. Nor did the decree itself decide that the report was correct as to the precise balance stated against the commonwealth, but reciting that the report showed that balance, and that no exception had been taken, it decided that the commonwealth had shown no ground of complaint against Theobald, and therefore dismissed her bill, without decreeing anything to Theobald. The commissioners of the sinking fund were not parties, to the decree nor to the affirmance, as they might have been, and as they no doubt would have been, if they had .been supposed to have been liable. As an independent private corporation they would not be bound by the decree or the affirmance, nor by any recitals contained in either.</p> <p>But conceding that in view of their duties and agency, as prescribed by the act of March, 1843, and under the presumption that they acted accordingly, it may be assumed that they appointed the valuers, received their report, and acted on it in handing over the property of the penitentiary, as recited in the opinion of affirmance, and that their acts and acquiescence concluded them as to the validity of the valuation, all this, with even the further concession that they are concluded as to the correctness of the balance of $1,635 89 against the commonwealth, on a fair and final settlement of the accounts between her and Theobald as keeper of the penitentiary, still it is not shown how this final result is to effect the propriety of the intermediate settlements and payments ; nor is it shown how, by making the state his debtor on final settlement, the keeper of the penitentiary could acquire the right of reclaiming from the commissioners of the sinking fund, as an independent corporation, payments which he had voluntarily, and upon his own settlements, made to them under the authority of law, and in the name of the commonwealth’s share of the profits. Suppose A, the dormant partner of B, gives an order in favor of C, founded on sufficient consideration, directing B to adjust with 0 A’s portion of the profits up to a certain period, and to pay them over to C, has B a right, on afterwards finding that A’s portion was not so great at the time as he supposed, to hold C liable for the difference? Or, if on a final settlement A proves a debtor, can C be made liable because he has received a portion of the assets, which, upon taking all the accounts together, should have remained for B? Or, if A, having an unliquidated claim upon B, and being indebted to C, directs B to adjust the unliquidated claim with C, and pay to him what is ascertained to be due, and he does so, can he afterwards make any claim upon C on the ground that he paid him more than was actually due to B? It is denied that in any of these cases the interest of C, if he be himself innocent, can be injuriously affected either by subsequent facts occurring between A and B, or by B’s subsequent discovery that upon the facts existing at the time of the payment he paid more than A was entitled to.</p> <p>Even if one person receives money as the agent of another, upon a consideration or in a transaction the subsequent failure of which divests the princir'§'lR the money; or if it be paid to the agent under the mistaken idea that the principal is entitled to it, when he is not, it cannot be reclaimed from the agent by suit, after he has innocently, that is, without notice, paid it over to his principal, or has by his directions so disposed of it that it is not under his own control, unless where he is the agent of both parties, bound to notice and guard the rights of both. If the money be innocently received, and paid over innocently, before notice of any dispute or adverse claim, the agent is no longer responsible for it to the party from whom he received it; and he does not become again responsible for it to that party by receiving from other sources, or by having in his hands other money belonging to the same principal. He cannot be directly or separately sued by the creditor of his principal, merely because he is the agent, or has the money of his principal in his hands. To subject him to such a suit it must be the money of the plaintiff that is actually or virtually in his hands, or it must have been put out of his hands in bad faith.</p> <p>If then the commissioners of the sinking fund were, as a corporation, an ordinary agent, which, acting for the state, had received in the name and right of the state, money to which the state, as subsequently ascertained, was not entitled ; and if such an agent, for such a principal, can be sued and made liable at all for money thus received, it can, upon the principle above stated, be made thus liable only while the money is, or ought to be, remaining in its hands, and before it has been paid over to the principal, or so disposed of, according to the directions of the principal, as to be completely subject to its will, and no longer within the power of the agent.</p> <p>The consideration of this proposition is, however, merged in the more important one growing out of the real character and objects of the sinking fund, and of the commissioners to whose charge it is committed, which will now be presented.</p> <p>In February, 1836, the legislature of Kentucky created and established a sinking fund, to consist of certain designated funds, incomes, and revenues of the state, appropriated to the sinking fund, for the devotion of which to the payment of the interest on money borrowed for internal improvements, and to the final redemption of the loans, the faith of the state was pledged. {Session acts 1835-6, page 415.) By the same act the governor of the state and the presidents of three banks then existing were made the commissioners of the sinking fund, invested with the control and management, and charged with the application of its resources to its appropriate purposes. Since this first enactment the constitution of this body of commissioners has, from time to time, been slightly varied. It now consists of the govern- or and the presidents of the Bank of Kentucky and of the Northern Bank of Kentucky — the auditor being ex officio secretary of the board. The resourceá of the sinking fund have been greatly enlarged since its original establishment; and while its general objects of paying regularly the interest, and extinguishing gradually -the principal of the state debts, has remained substantially unchanged, its efficiency has been greatly increased, and its operations have become more regular and more widely extended. By an act of 1840 the commissioners of the sinking fund • were authorized to sue and be sued, as other corporations. By an act of 1846 they were formally incorporated, and they stand now as a corporation, invested with the usual corporate powers. The various legislative acts by which its resources have been built up, its duties prescribed, and its operations directed, need not be particularized. As a corporation it is not only the mere creature of the laws which have created and made it what it is, but it is the mere instrument of the state, created for its purposes, subject to its will, and wholly under its control.</p> <p>As a fiscal agent it is invested, in subordination to the legislative will, with the control of certain porfions of the revenues of the state, to be used in certain modes, and for certain purposes designated by legislative power of the state. It is intrusted with considerable discretion in the performance of its duties. But it has no interest or object as a corporation outside of its connection with the fiscal affairs of the state; and it is more exclusively and purely a public agent than any individual officer can be. It may hold in its own name property of a certain description, such as bank stocks, but it holds such property by special permission, and for designated purposes, and it is in fact the property of the state. So the money-which it may control is not in its own coffers, subject to its own will, but is in the treasury or in banks, like other money of the state, except that it is there to the credit of the sinking fund, subject to be drawn for the objects to which that fund is appropriated, upon orders, the form and authentication of which are prescribed by law. And a compliance with duty in all these particulars is secured, not only by reports from the commissioners, in which their transactions and the condition of the fund are exhibited, but also by the necessary publicity of the affairs with which they are concerned, and by the required co-operation of various distinct officers, between whom there is no connection or union, except in the occasional duties pertaining to this agency.</p> <p>The commissioners of the sinking fund, as a corporation, constitute a most important branch of the fiscal department of the government, to which is committed the charge of paying the interest and principal of the public debt, and of managing, with a view to that object, a certain portion of the revenues and resources of the state ; it is, in fact, a part of’the government, as much as the treasurer and auditor are a part of the government, and it represents and is identified with the state, as to all matters coming within its sphere, as fully as either or both of those officers do. In truth, this corporation has no capacit}' or function or existence but in connection with its duties as fiscal agent of the state. It might, no doubt, like the auditor or treasurer, be subjected to the compulsory process of mandamus, to coerce the performance of a specific duty, in which others are interested; and being authorized, to a very limited extent, to deal in bills of exchange, for the convenience of making distant payments, it may, in transferring them, incur liabilities, which will subject it to an ordinary suit; and as the bill transferred by them will have gone to the objects of the sinking fund they may have the right to meet the liability out of that fund; but even in that case a judgment against them as a corporation to be satisfied, as it must be if at all, out of the sinking fund, would in effect be a judgment against the state.</p> <p>And if their liability to such a judgment be admitted, it is not on the ground of their capacity to sue and be sued, which must be limited to proper occasions of suit, but on the implication arising from the express authority to deal in bills of exchange, by which liability may be incurred. But no such implication arises from the authority to settle with the keeper of the penitentiary, and receive annually the commonwealth’s half of the profits. No liability is incident to such a transaction. The provision of the act was nothing more than the appropriation of this share of the profits as apart of the sinking fund, whereby it went into the treasury to the credit of that fund, and subject to all the regulations and restrictions provided for that fund. The commonwealth’s share of these profits became thus one of the regular and ordinary resources of the sinking fund, and the sums received from that source could be drawn out only in the manner prescribed for drawing that fund, and to be appropriated only to the purposes to which that fund was devoted, unless a different direction should be given to any portion of them by statute. These sums, therefore, were, as to all the grounds or objects of a suit against the commissioners for their recovery, completely out of their hands and control, and even before being paid to a creditor of the state they were placed under an inviolable trust for that purpose, so that the payment to the commissioners, as a part of the sinking fund, was in effect setting it apart for the creditors for whom the commissioners were the trustees. Indeed, in the regular operations of the commissioners, as prescribed by law, and required by the objects for which the fund was created, the. sums, received in each year were most probably actually drawn out and expended within a year; and there is no allegation nor any probability that any part of il remained unexpended even when a final balance was claimed against the state, and much less when this suit was brought, which, so far as appears, gave the first intimation of an intention to reclaim from the commissioners of the sinking fund any part of the sums which bad been paid to them.</p> <p>The commissioners deny that they have any money subject to the plaintiff’s claim, and the denial is sustained by the requisitions of the law, and by the presumptions of fact, and it is unopposed by either allegation or proof. Under this view it is insisted that no cause of action is shown in the petition, and that certainly none is made out in proof. If the commissioners be regarded as a distinct independent party, no ground is shown for making them liable for the alledged balance against the state.</p> <p>But- it is further and most earnestly insisted that a suit brought against the commissioners for money regularly received into the treasury as a part of the sinking fund, is in effect nothing more nor less than a suit against the state, to recover money out of the treasury; that it is obvious, from all that appears in the case, as well as from what has been said in this brief, that the real demand of the plaintiff, whether just or unjust, is against -the state alone. And as there is no colorable claim against the commissioners, but on the ground of their connection with and relation to the state, it is confidently urged that in this, as in other cases of demands against the state, the courts can afford no redress -without express legal provision ; and that the plaintiff should be left like other claimants against the state, to seek satisfaction from the legislature.</p> <p>It is hoped, therefore, that the judgment will be reversed, and the cause remanded with directions to dismiss the petition.</p> <p>It is not deemed necessary to state in detail the provisions of the various acts of the legislature, in regard to the resources of the sinking fund, or the object of its creation. The primary purpose no doubt was, to create a fund sufficient to pay the interest upon the state debt, and finally to extinguish the debt itself. To effect this object it was esteemed necessary to place it under the control of persons clothed with ample authority and discretion to manage and conduct it. These individuals having been appointed, were, by an act of February, 1846, incorporated and given perpetual existence, with power lo sue and be sued, contract and be contracted with, plead and be impleaded, answer and be answered, defend and be defended, in all courts and places, as natural persons; to have and use a common seal, and to make by-laws, &c.</p> <p>Previously to the passage of this act, the legislature, on the 7t.h January, 1840, passed an act creating the commissioners of the sinking fund a corporation. It is in these words :</p> <p>“Sec. 1. That the commissioners of the sinking fund of the commonwealth of Kentucky, as such, and by that name and style, shall have power to sue and be sued, as other corporations.”</p> <p>The act of 1838, under which Theobald was elected, provided that the annual profits of the commonwealth of Kentucky should be appropriated to the sinking fund, and made it the duty of the keeper to report, semi-annually, on the first Mondays of June and December, to the commissioners of the sinking fund, and to pay over the proportion of profits due to the commonwealth. These funds, so received by the commissioners, were to be held and disposed of as the law directed. It was made expressly the duty of the keeper to settle with and pay to the commissioners.</p> <p>The resources of the sinking fund are, by a constitutional provision, placed beyond the reach of the legislature, and whilst they are dedicated to a special purpose, their control and direction belong alone to the commissioners of the sinking fund. It is made their duty to receive and pay out, and their dominion over the fund is as absolute as that of any other corporation over its- corporate property. It was in view of the important and complicated' duties devolved upon the commissioners of the sinking fund, that the legislature deemed it necessary to clothe them with ample corporate powers.</p> <p>There is nothing in the act of incorporation indicating an intention upon the part of the legislature that the commissioners should not be liable to suit. The language is, that they shall have power to sue and be sued. There is nothing in the character of the duties required of them by law, nor in the powers conferred, to preclude the idea of their liability to be sued. On the contrary, the various settlements which they are required from year to year to make, and the various transactions of business which they are necessarily compelled to have with the numerous debtors of the sinking fund, and the creditors of the state, suggest at once the necessity of the power to sue and be sued.</p> <p>But it is contended by the appellants, that they are the mere agents of the state, and have no interest in the corporate effects, and to sue them is in effect to sue the state. This I consider the most formidable position in the defense.</p> <p>In tbe case of the Bank of the Commonwealth of Kentucky vs. Wister and others, 3 Peters, 431, the question was raised whether a suit could be maintained against the bank, on the ground that it was substantially a suit against the state.</p> <p>Mr. Justice Johnson, in delivering the opinion of the court, says, “ that the question is no longer an open one; that the case of the United States Bank vs. the Planters Bank of Georgia, 9 Wheat., 904, is a much stronger case for the defendant than the present ; for there the state of Georgia was not only a proprietor, but a corporator. Here the state is not a corporator, since by the terms of the act the president and directors alone constitute the body corporate — the metaphysical person liable to suit.”</p> <p>The same question again arose in the supreme court of the United States, in the case of Briscoe vs. the Bank of the Commonwealth of Kentucky, 11 Peters, 311, and was decided in the same way.</p> <p>The court further says, “ that a state, when it becomes a stockholder in a bank, imparts none of its attributes of sovereignty to the institution, and that this is equally the case whether it owns the whole or a part of the stock of the bank.”</p> <p>There cannot, I think, be found any difference in principle between the cases cited above and the one under consideration.</p> <p>It is denied by appellee that the corporation can screen itself from suit, on the ground that it is merely a fiscal agent of the state, and as the state cannot be sued, therefore the corporation cannot be sued. If the commissioners of the sinking fund may not be sued, the language of the act of incorporation was very injudiciously chosen, for it expressly provides that they may sue and he sued, as other corporations. It would be a strange corporation, possessing power to contract and power to sue, and not be liable to suit.</p> <p>In this case an artificial being is brought into existence by an act of incorporation, styled the commissioners of the sinking fund. Certain powers are conferred, among which is the power to sue and be suec[. This attribute does not depend upon the interest of the corporators, but in this case is, byr express enactment, conferred upon certain persons or characters, and their successors, who had not at the time of their appointment, and never can have, any personal interest in the fund placed under their control. The duties imposed are not only extensive but important. It is made their duty to look to the state debt and its extinguishment; to settle and receive the funds due the state from banks, turnpike companies, &c. In the receipts from all these sources they may receive more than they ought to receive, and it would be strange if they were not bound to refund such excess.</p> <p>If the commissioners of the sinking fund have received more than the state’s share of the profits of the penitentiary, whether through mistake, by miscalculation, or in any other way, may it not be reclaimed ? The corporation, though an artificial person, has no power to do a wrong and shield itself under its agency. See Tracy 4- Ballister vs. Swartwoui, 10 Pet.. 94, in which a collector of customs was held responsible for detaining goods on a claim for larger duties than he had a right to demand, though acting under the instructions of the secretary of the treasury. The court say the government is bound to indemnify the officer.</p> <p>Whenever a corporation aggregate is acting within the limits of the purposes of its institution, all parol contracts made by its authorized agents, are express promises of the corporation ; and all duties imposed upon them by law, and all benefits conferred at their request, raise implied promises, to enforce which an action lies. (Bank of Columbia vs. Patterson's admr., 7 Cranch, 299.)</p> <p>The principle involved in the case is not changed by the fact that the funds are deposited in the treasury of the state, and drawn upon the warrant of the auditor. The commissioners can command this warrant at their discretion. The detail of the mode of operation is only for safety and convenience.</p> <p>If a ministerial officer collect from me money, to which he is not entitled, I can recover it back from him. The commissioners of the sinking fund are in no better condition than a natural person would be under like facts.</p> <p>Applying the law governing the acts of agent and principal, the commissioners of the sinking fund are responsible in their corporate capacity; first, because they have been guilty of an illegal act in refusing to settle with Theobald ; and, secondly, in retaining from him money to which they have no right. The authority given was to receive the state’s share of the profits — they have received more. If they, innocently through mistake, or fraudulently by design. received more thaa was due to the state as mere agents, they are liable to an action. As agents they ought not to have parted with the money until the settlement was completed. They were advised of the pendency of the suits for settlement, and they knew that Theobald claimed a balance against themj and if they parted with the fund which was due to Theobald, they should refund notwithstanding. It was never the right and property of the sinking fund, and the decree is. right.</p> <p>The suit in favor of the Commonwealth vs. Theobald, in the general court, was brought pursuant to-the provisions of a special act passed lor the purpose. The jurisdiction of the court was limited, and both the parties to she suit, and its object, were specifically pointed out in the act. The commissioners of the sinking fund could not have been made parties to that suit. The court had no jurisdiction of a suit between Theobald and the commissioners of the sinking fund.</p>

Case®. APPEAR FROM FAYETTE CIRCUIT. Ord. Pet. It is admitted in the petition that the defendant had annually paid the interest, and that he had not sold the house and lot in Lexington ; but it is alledgp ed ibat he has had ample time to do so. and that it was the understanding that he was to do so in a reasonable time.

Case 4. APPEAL FROM FAYETTE CIRCUIT. Pet Eq. 1. The general rule is that the holder of a bill of exchange is not bound to give notice of protest where the drawer had no funds in the hands of the drawee. (1 Wheaton's Sclwyn, 332.) There are exceptions, as where the drawer has reasonable expectations of having funds in the hands of the drawee ; as where shipments have been made to him. (Story on Bills, 367, note 2; Holcomb's Leading Cases, 332; 2 Marshall, 152.) 2.

Case 5. Ord. Pet. APPEAL FROM HARRISON CIRCUIT. The only question arising in this case is whether the appellants had such a legal possession of the land as authorized them to sue for the trespass, in some of the states it has been decided that constructive possession is sufficient to maintain the action of trespass. (Dobbs vs. Gadigo, 4 Dev.

Case 6. APPEAR FROM FAYETTE CIRCUIT. Pet. Eq. The appellant complains of the decree of the circuit court, on the following grounds: 1. The circuit court had not jurisdiction. The will shows that the land lies in Clarke county. The suit is in rem. The jurisdiction, therefore, is local to Clarke county, where the first suit was brought.

Case 7. Pet. Eq. APPEAL FROM PULASKI CIRCUIT. The title of the vendor, G. W. Andrews, is shown to be good. No serious objection is made to it by Word. His principal objection to an execution of the contract is the presumptive right of dower of Andrew’s wife. The sale was of two acres of ground and a carding machinery. These two things made up jointly the consideration. They are inseparable. The machinery amounted in value to a third of the whole purchase.

Case 8. Ord. Pet. APPEAL FROM PULASKI CIRCUIT. It is hard to understand the ground upon which the demurrer was sustained. The amended petition clearly states a cause of action, being drawn to meet the provisions of the Revised Statutes, page 628.

Case 9. Ord. Pet. APPEAL FROM MADISON CIRCUIT. Upon the return of this case from this court, it ordered an estimate to be made of all the personal estate, including that which the law secured to the widow free of the debts of her husband, as well as that not exempted ; and further ordered that the value of the widow’s life estate in the land should also be estimated and made liable for the debts, when by the decision of this court the life estate was not declared to be…

Caso 10. Ord. Pet. APPEAL FROM ANDERSON CIRCUIT. The proof in this case of the purchase of ihe slaves by Taylor, and his payment of the price, is clear, and there is no proof that he had any knowledge of any fraudulent intent on the part of Menzies.

Case 11. APPEAL FROM LOUISVILLE CHANCERY COURT. Pet. Eq. Held: that “the possession by a mortgagor of the mortgaged property is not fraudulent per se.

Case 12. APPEAL FROM LOUISVILLE CHANCERY COURT. Pet. Eq. Mrs. Bergen owned, in fee, a house and lot in Louisville, which is sufficient for her own and family’s use. and occupation. Her husband rented of defendant a larger house to keep a boarding-house, and Mrs. Berger signed the lease, agreeing to pay rent. This suit was brought to subject Mrs. Berger’s estate to the payment of the rent.

Case 13. APPEAL FROM LOUISVILLE CHANCERY COURT. Motion. Argued — 1. That any hardship to Hazard and' wife, from the reversal of the decision of the chancellor, ought not to control, where there has been no fraud, which in this case is not pretended. It is safer to maintain the consistency of the law, than to make it so flexible and uncertain as to meet every case of' seeming hardship.

<p>When an appeal is prayed from a judgment of the circuit court when rendered, and the record is filed on or before the first day of the second succeeding term of the court of appeals, no process is necessary. The appellee is bound to take notice of the filing of the record, though the ninety days may have elapsed and no supersedeas bond was given.</p> <p>[The facts of the case are stated in the opinion of ..the court. — Rep.]</p> <p>When an appcal os prayed from a judgm’t of the circuit court when rendered, and the record is filed on or before the 1st day of the 2nd succeeding term of the court of appeals, no process is necessary. The appellee is bound to take notice of the filing of the . record, though the ninety days may have elapsed and no supersedeas houd was given.</p>

<p>Where a guardian has been appointed to an orphan residing in Kentucky, and the residence of the orphan is changed, and a guardian appointed in the state of his or her residence, such foreign guardian has a right to draw from the guardian in Kentucky any personal property belonging to such orphan ward. {Revised Statutes, page 376.)</p> <p>[The facts of the case are stated in the opinion of the court. — Rep.]</p> <p>Where a guardian has been appointed to an orphan residing in Kentucky, & the residence of the orphan is changed, and a guardian appointed in the state of his or her residence, such foreign guardian has a right to draw from the guardian in Kentucky any personal proper tv belonging to such orphan ward.— (Rev. Stat. page 376.)</p>

Case 16. APPEAL FROM KENTON CIRCUIT. Ord. Pet After stating the nature of the claim, and the prominent facts of the case, the principal facts relied on by the defendant, being, that before the establishment of the town of Covington, the ferry privilege across the Ohio, was granted to Thomas Kennedy, who owned the land on which the town was afterwards laid out; and that in the plat of the town, and in the sale and conveyance of the lots, the ferry privileges and appurtenant…

Case 17. Ord. Pet. APPEAL FROM JEFFERSON CIRCUIT. 1. This is a case in which one agent or servant of the company has been injured by the carelessness of another agent or servant, while both were in the service of the principal. The two agents have one purpose in view. The one was a sieve, the other a free man. It is not supposed that it will be contended, that if the slave had been free, that he could have recovered for the injury received.

Case 18. Ord. Pet. APPEAL FROM NELSON CIRCUIT. Miles held a note on Carpenter for five hundred dollars, which he sold to Wilson, and passed it by delivery only. Suit was brought in the Nelson circuit court on the note in the name of Miles, the payee. The defendant answered, alledging that Miles had sold the note before suit brought, and assigned it to Turner Wilson, who was the person really interested in the recovery. Miles replied, admitting the fact.

Case 19. APPEAL FROM FRANKLIN CIRCUIT. Ord. Pet. Argued — 1. That the bill of exceptions copied into this record cannot be treated as part of the record by this court. The court said, in the case of Biggs vs. Mcllvain’s Ex., 3 Mar., 360, that bills of exceptions allowed and signed by the circuit judge in vacation, though copied into the record, are no part thereof, and will not be regarded by the court of appeals.

Case 20. APPEAL PROM WASHINGTON CIRCUIT'. Obp. Put 1. The first question is, should the paper-propounded as the will of Sally Thompson be admitted to record as her true last will and testament ? We contend that it should, for the following reasons. 1. It is duly executed by her, and attested by the requisite number of witnesses, and its execution proved. 2.

Case 21. APPEAL FROM FAYETTE CIRCUIT. Pet. Eq. Appold & Sons, residing-in Baltimore, brought suit by ordinary petition, and sued out an attachment from the Fayette circuit court, in March, 1853, against William F. Forepaugh, a citizen of Philadelphia, and summoned Purnell Bishop, of Lexington, Kentucky, as garnishee, attaching in the hands of Bishop a debt due to Forepaugh on an open account.

Case 22. Pet. Ect. APPEALS FROM LARUE CIRCUIT. This suit was brought in the Larue circuit court by-Edward, (alias Ned,) a man of color, against Barnes and wife, asserting his right to freedom, under the will of Zera Wilcox, and claiming compensation for his labor since the death of Wilcox — about two and a half years.

Case 23. Ord. Pet APPEAL FROM KENTON CIRCUIT. Lawson sued Albro, by ordinary petition, in the circuit court of Kenton, on a note, alledged to have been executed in 1846, for $97 97, due three months after date, alledged to be lost, which the petition alledges amounts to a sum exceeding $100, and for which plaintiff asked a judgment.

Case 24. APPEAL FROM CAMPBELL CIRCUIT. Ord. Pet. Argued — 1. That there exists in the law a clear distinction between checks, bills of exchange, and promissory notes.

Case 25. APPEAL FROM KENTON CIRCUIT. Ord. Pet. Held: and brought his suit to eject the occupant. But at law the right of action for a fraud accrues when the fraud is committed, not on its discovery. (Maddox vs. Davidson, 3 Mon., 41.) Hence the right of action here accrued in January, 1836, if at all.

Case 26. APPEAL FROM SPENCER CIRCUIT. Ord. Pet. A verdict having been found for the plaintiff in this case for $3,759, the appellants moved the court to set it aside, and award a new trial on the following grounds, to-wit: 1. For errors in instructions given at the instance of plaintiffs. 2. For refusing to give instructions moved by defendants. 3. For modifying erroneously the instructions moved by defendants. 4. Because the verdict was contrary to law. 5.

Case 27. Pet. Eq. APPEAL FROM BATH CIRCUIT. Argued — 1. That the proper parties were not before the court. 2. That there were no executedgifts to Tho. Trumbo, the appellee; that the proposed gift was without consideration, and that it was in the power of Geo. and Samuel M. Trumbo to change their contract, and cut off Thomas Trumbo from the receipt of the $600. 3.

Case 28. APPEAL FROM GREENUP CIRCUIT. Ord. Pet. 1. The appellants complain that they were prejudiced on the trial by the decisions of the court. 1. In sustaining the demurrer to their plea. 2. In rejecting evidence offered by them. 3. In giving improper instructions to the jury. 4. In refusing a new trial.

Case 28. Pet. Eq. APPEAL FROM MADISON CIRCUIT. The only question in this case is, whether James Clarke should be charged in the distribution with that which the circuit court refused to charge him. Other questions of detail will be adverted to hereafter. It is alledged that James Clarke received seventy acres of .land, worth $2,100. more than what the intestate had advanced to his other children, and prays that it may be accounted for in the distribution.

Case 30. Ord. Pet. APPEAL FROM FULTON CIRCUIT. There are several grounds for which the judgment should be reversed, some of which I will proceed to state: 1. During the progress of the trial the defendant offered to read the deposition of J. H. Faucett, “and on motion of plaintiff’s counsel, the same was .suppressed by the court, to which the defendant, by his counsel, objected, but his objections were overruled.” No reason is assigned for suppressing the deposition.

Case 31. Ord. Pet. Appeal from kenton circuit. 1. The general rule which we rely upon as safe to test liability in a case like this is, that where an indictment may be maintained against an individual, or a corporation, for something done, or negligently omitted to be done, which it is a public duty to do, causing damage to the public, an action will lie for special damages thereby done to an individual; as in the ordinary case of a nuisance put in the highway by a stranger…

Case 32. APPEAL FROM HICKMAN CIRCUIT. Ord. Pet. The only question arising in this case is upon the construction of the will of Obediah Morse. Had Susan Morse a right, under the will of her husband, to make an absolute sale of any part of the real estate of which the testator died seized. It is true that effect should be given to every part of the will if it can be done.

<p>1. A deed of assignment to a trustee, for tlie benefit of creditors, of “all the bills, drafts, promisory notes, negotiable securities of every name and nature, belonging to the said firm of E. & S., and pertaining to or connected with the business of said firm,” does not pass a bill or note transferred to the maker of the deed, by indorsement merely, for purposes of collection.</p> <p>2. On a demurrer to a plea, alledging, for defense to a suit on a note, that the plaintiff is not the legal owner of the note, but that it was transferred to plaintiff, assignor, merely for collection, and that it bolongs to another, the fact is to be taken as true, and the demurrer sustained. None but the legal owner can sue on a note though the legal owner consent.</p> <p>[The facts of the case appear in the opinion of the court. — Rep.]</p> <p>1. A deed of assignment to a trustee for the benefit of creditors of “all the bills, drafts, pr omissory notes, negotiable securities of every name and nature belonging to the said firm of E. & S., and pertaining to, or connected with, the business of said firm, does not pass a bill or note transferred to the maker of the deed by indorsement mere ly for purposes of collection.</p> <p>2. A demurrer to a plea, alledging, for defense to a suit on a note, that the plaintiff is not the legal owner of the note, but that it was transferred to plaintiff, assignor, merely for collection, and that it belongs to another, the faet is to be taken as true and the demurrer sustained. None but the legal owner can sue on a note, though the legal owner consent.</p>

Case 34. Ord. Pet. APPEAL FROM KENTON CIRCUIT. The circuit court did not err in overruling the demurrers to the defense set up by the defendants. The stock for which the note for $37,500 was given was genuine stock, and there was therefore a valid consideration for the note; It wrill be seen, by inspecting the original and amended charters and the by-laws, that the stock deposits were limited to $1,400,000.

Case 35. APPEAL FROM FRANKLIN CIRCUIT. Ord. Pet. 1. I lay it down as a clear principle of law that a party is not liable to an action of trespass quere clausum frigit, if he does not enter on the land, of the plaintiff and do some injury to it. 2.

Case 36. APPEAL FROM SHELBY CIRCUIT. Pet. Eq. Held: in the case of Stephen’s administrator vs. Barnet, 7 Dana, 258, “that a mortgage not deposited for record within sixty days after its execution, is invalid against any creditor of the mortgagor.” (See also Bank of U. S. vs, Huth, 4 B. Monroe, 485.) The conduct of Hildeburn and his agent, in holding this mortgage whilst the mortgagor…

<p>Case 37.</p> <p>Mandamus.</p> <p>APPEAL FROM FAYETTE CIRCUIT.</p>