Volume 57 — Kentucky Reports

<p>Case 1.</p> <p>Case.</p> <p>APPEAL FROM WARREN CIRCUIT.</p> <p>Argued—The demurrer ought to have been sustained to each count of the plaintiff’s declaration. To the first count, because it is uncertain as to the person of whom the defendant farmed the Jack in controversy; because it is not therein alledged that plaintiff had possession, or the right to possession, of the Jack; because the nature, meaning, and definition of the term farming, which the court does not judicially know, is not described, although it is assumed to import a contract. To the second, because it sets out a mere naked bailment of plaintiff’s Jack, without contract or consiedration, and that the Jack received injuries, and was killed under circumstances, which do not, in law, render the defendant liable for damages therefor.</p> <p>The instructions of the inferior court were erroneous, inasmuch as under.the naked bailment alledged in the second count of plaintiff’s declaration, the defendant was not bound to bestow on the Jack such care, management, and attention as a prudent man, ordinarily, in the management of his affairs, would have bestowed. Nor is it sufficient that plaintiff proved a consideration for the bailment, as none is averred. Admitting, however, that the defendant hired the Jack of the plaintiff, he was only bound to treat the Jack as carefully a¡ any man of common discretion would treat his own Jack. Jones’ Bailment 88 ; which doctrine is approved by Chancellor Kent, see Com. vol. 2,p. 586, wherein the rule is further stated to be, that, “ the hirer is bound to ordinary care and diligence, and is answerable only for ordinary neglect— for this species of hiring, locath rei, is one of mutual benefit.” The settled measure of care, as well as of neglect, is transcended by the instructions of the circuit judge in this case, inasmuch as they require such care as a prudent man would bestow, whereas the authorities cited only require ordinary care and diligence. The instructions require the care and diligence which would be bestowed by a certain sort of man, that is, a prudent man, whereas the rule, as laid down by Sir W. Jones and Chancellor Kent, supra, only requires ordinary cavo and diligence, such as the generality of. men would be likely to observe.</p> <p>The application of the principle contained in the instructions of the court below, to the evidence detailed, constrained the jury to find a verdict against the defendant, for damages resulting from an act which men of ordinary care and diligence would have done, ( and a prudent man might have done. The evidence shows that the defendant, having occasion to stop at a house near the road along which-he was-traveling with the Jack, tied him to the-limb of a tree in a lot where there were no other horses, some yards distant from the roads on either side, not much frequented, went into the house, and alter remaining a few moments came out and found the Jack dead, no doubt from injuries received by rearing and falling. The evidence further shows, that for a long time before that time the Jack was remarkably gentle and docile in his disposition, had stood gently when tied at mills and musters, in the immediate company of other horses, had been before tied to trees and stood gently, had been stabled with other horses without being separated or kept apart by poles or' other thing, had been allowed to' run loose in a lot ' where a stallion served mares, and could be then kept away by a little boy, and that all this was known to the appellant.</p> <p>Upon this evidence we think no jury could have hesitated to say that the defendant was not liable for damages, if not mislead by the instructions of the court. The instructions of the court require the jury to determine whether an absolutely prudent man would ' have ordinarily tied his Jack to the tree under the circumstances proved in this case, arid not whether ' men of ordinary care and deligence would .have so tied “ him. The instructions use the word .ordinarily to qualify the act and not the quality of the man; by it, the jury must first determine whether & prudent man would have so acted or not, and then yvould he have ’ ordinarily so acted.</p> <p>We are clearly of opinion that the jury were mislead by the error contained in the instruction of the circuit judge, and that a new trial should have been awarded. Wherefore a reversal is respectfully asked.</p> <p>Argued—Regarding the bailment as one for hire, (which is by no means admitted,) then, as both parties are to be benefited, neither the highest or lowest degree of care and diligence was required of the bailee. “ Ordinary negligence may be defined to be the want of ordinary diligence, &c.” Story on Bailment, chap. 1, page 19 sec. 17, 3d edi.; and page 390, sec. 399, it is held, that “ the hirer of a thing is only ' responsible for that degree of diligence which the ‘ generality of mankind use in keeping their own ‘ goods of same kindon page 899, sec. 405, it is held, “ that the true extent of the duty and diligence ‘ required of the hirer, in the care and custody of the £ thing hired, must essentially depend upon the na- £ ture and character of that thing, and its liability to £ loss or injury.”</p> <p>Taking this case in its strongest light against the appellant, that he is a bailee for hire, and apply the principles to the evidence, he could not be liable for damages, it must therefore be that the jury were mislead by the instructions of the circuit judge, which were different, and, as contended, erroneous.</p> <p>The evidence contained in the record conduces to prove that the appellant kept the Jack in 1849; that the Jack was docile, gentle, and easily managed; that while taking him, at the close of the season, back to appellee, by the usual route, he stopped at the house of a friend, and there tied the Jack to the limb of a hickory tree, inside of a lot where there were no horses, forty or fifty steps from the road, and by some means—probably by his rearing and falling— he was killed. Was there a want of ordinary diligence, and such as is required by the rule of law, supra, in thus tying the Jack? It is not a question of prudence or imprudence, but would not men ordinarily have done the same thing? Witnesses both for appellant and appellee say they most likely would. Wherefore we think that a new trial ought to have been granted. A reversal is repectfully asked.</p> <p>Argued—The circuit judge properly overruled the demurer to the declaration, as it contains the ordinary form of counts against a bailee for a consideration, found in Chittfs Pleading. The meaning of the word farm is known to the court—it means, to let, to demise, to farm let, to convey for a term of time on the shares; that the jarmee shall return or render to the owner a proportion or part of the proceeds or produce of the thing or object let and farmed; which significations imply a consideration. “Farm, or feorme, 1 is an old saxon word, signifying provision, and it * came to be used, instead of rent or render, because. ‘ anciently the greater part of rents were reserved in 1 provisions, in corn, in poultry, and the like, ’till the ‘ use of money became more frequent.” ■ Blackstoné's Com. ml. 2, side page 318.</p> <p>It is not material, in this character, of action, how much the consideration was; it is only material that there was a consideration, which being, as we think, sufficiently alledged, it devolved on the bailee to take such care of the Jack as any prudent man commonly takes of his own goods of like kind.</p> <p>There is we think no difference between the care required of a prudent man and of a man of common discretion, and we regard the law on this point as having been properly ruled by the circuit judge.</p> <p>The evidence of a former keeper shows the Jack to have been vicious; the evidence of keepers of other Jacks shows that they never tied one out in an exposed place, one hundred and fifty yards from a house, near the junction of the public roads, as was the fact in this case. The simple fact that mo one ever had done so, is conclusive against the prudence and propriety of the act. No one witness says he would have so tied the Jack, nor that it was customary, nor that it was safe; on the contrary, that the practice was otherwise. No one ever saw this Jack in an exposed place, so tied unless the keeper was at hand; or the Jack otherwise guarded.</p> <p>We believe thejury rightly determined the case, and the count properly ruled the law. Whereupon we respectfully ask an affirmance.</p>

<p>1. The wife alleges and proves that the husband has no estate; has depended for years upon the labor of herself and children for support; has made no suitable provision for their maintenance, and is and has been a common and confirmed drunkard for several years. Held— That by the liberal construction authorized by Reo. Stat. 170, the •words “wasting of his estate,” (Rev. Stat. 390,) embrace and apply to •a man’s health, time, and labor, where he has no property, which •being necessary for the support of his family, are essentially his estate, and the proof, supra, entitles the wife to a decree a vincula matrimonii.</p> <p>[No brief on file.]</p> <p>[This case was decided at the Summer Term, 1855, but was accidentally omitted in the published decisions of that term.]</p> <p>1. The wife alleges and proves that the husband has no estate; has depended for years upon the labor of herself and children for support; has made no suitable provision for their maintenance, and is and has been a common and confirmed drunkard for several years</p> <p>Held—That by the liberal construction author ized by Rev.Stat 190, the words “wasting of his estate,” (Rev. Stat. 390,) embrace and apply to a man’s health, time, and labor,where he has no property, which being necessary for the support of his family,are essentially his estate, and the proof, supra, entitles the wife to a decree a vincula matrimonii.</p>

<p>1. The charter of the city of Louisville, passed in March, 1851, conferred on the city council the power to license taverns in the city, with or without the power of retailing spirituous or fermented liquors, and also to license coffee houses, wherein such liquors iiiightbe sold by retail. The act of 1854 declares that this power of the city authorlties shall not dispense .with the necessity of giving the bond required in the cnunty court, and taking the oath, and payment of the tax, required by the general laws.</p> <p>2. The power conferred upon city authorities must be exercised in conformity with the general law, and only conferred a power on the city authorities to impose an additional tax for the privilege.</p> <p>3. The council of Louisville is not bound to license coffee houses.</p> <p>4. A proceeding against the city, which is a corporation, should be against the corporation or the general council as a body, that represents the corporation.</p> <p>.5. Under the general laws of the State a house of entertainment, in which spirituous liquors are not retailed, is not required to obtain a a license, but obtaining a license to keep a tavern confers the right to retail. 14 B Mon. 385. By the city charter of 'Louisville such houses are required to obtain a.license.</p> <p>6. The county court has a discretion in granting tavern licenses, and so has the city authorities, which is a judicial, not an arbitrary, discretion, and unless it be shown that the discretion has been abused there is no eause of complaint.</p> <p>7. The mandamus is not the appropriate remedy to control the exercise of a judicial discretion, and if exercised cannot be controlled by such a proceeding. (2 Bibb, 173; 19 John. 260; 10 Pick. 246; 5 Iredell N. Carolina, 328; 2 Strange, 81; 1 Bur. 556.)</p> <p>[The facts of the cáse are stated in the opinion of the court.] Rep.</p> <p>[This case was decided at the Summer Term, 1856, but’was accidentally omitted in the published decisions of that term.]</p> <p>1. The charter of the city of Louisville, passed in March, 1851, conferred on the city council the power to license taverns in the city, with or without th® power of retailing spirituous or fermented liquors, and also to license coffee houses, wherein such li q u o r s might be sold by retail. The act of 1854 declares that this power of the city authorities shall not dis p e n s e with the neeessityof giving the bond required in the county court, and taking the oath, and payment of the tax, required by the general laws.</p> <p>2. The power conferred upon city authorities must be exercised in conformity with the general law, and only conferred a power on the city authorities to impose an additional tax for the privilege.</p> <p>3. The council of Louisville is not bound to licen s e coffee houses.</p> <p>4. A proceeding against the city, which is a corporation, should be against the corporation or the general council as a body, that represents the corporation.</p> <p>5. Under the general laws of theState a house of entertainment, in which spirituous liquors are not retailed, is not required to obtain a license, but obtaining a license to keep a tavern confers the right to retail. 14 B■ Mon. 385. By the city charterof Louiavillesuch houses are required to obtain a license.</p> <p>6. The county court has a discretion in granting tavern licenses, and so has the city authorities, which isa judicial, not an arbitrary,discretion, and unless it be shown that the discretion has been abused there is no causa of complaint.</p> <p>7. The mandamus is not the appropriate remedy to control the exercise of a judicial discretion, and if exercised cannot be controll • ed by such a proceeding. (2 Bibb, 173; 19 John. 260; 10 Pide. 2 4 6; 5 Iredell N. Carolina, 3 3 8; 2 Strange, 81; 1 Bur. 556.)</p>

<p>1. The validity and effect of a will, dated before the Rev. Statutes took effect, must be determined by the laws previously in force. Rev. Staf.. 697, chap. 106, sec. 26.</p> <p>2. The object and design of the 20th sec. of chap. 106, Rev. Statutes, page 696, was not merely to fix a rule of construction, hut to alter the legal effect of a residuary devise, so that a legacy lapsing shall pass as in case of intestacy, and not as heretofore to the general residuary devisee; wherefore it is emhraced by the provisions of sec. 26¿7i, Ibid.</p> <p>3. Before the Rev. Stat. took effect, the residuary legatee was entitled to whatever personal estate (aliler as to real estate) might fall into the residue by lapse, invalid disposition, or other accident. Williams on Executors, vol. 2, 1250; Kent’s Com. vol. 4, 541j side page; Jarman on Wills, vol. 1, 304, note \,page 520; Cambridgevs. Rouse, 8 Ves. 25. For the reason, see Williams on Executors, vol. 2, page 1250.</p> <p>4. A residuary bequest of personal estate, before the Rev. Statutes took effect, carried not only everything not disposed of, but everything that in the event turns out not to be disposed of. Cambridge vs. Rouse, 8 Ves. 25; Taylor vs. Lucas, & Hawks 215; Davis vs. King, 2 ltd. ch. 205; Vick vs. McDaniel, 3 How. Miss. 337. Very special words are necessary to change the operation of this rule. Bland vs. Lamb, 2 Jac. and Walk. 406.</p> <p>5. Testator bequeathed to the wife one-third part of his personal estate, and the other two-thirds to residuary legatees; the bequest to the wife lapsed by her death before the testator. Held, that the personal property bequeathed to the wife becomes a part of the residuum, and passed under the will to the residuary devisees.</p> <p>6. The guardian of C. agreed with C.’s grandfather to resign as guardian that the grandfather might be appointed in his place, and thereby acquire control of the person and estate of C.; in consideration whereof the grandfather agreed that he would give to the ward C. a child’s part of his estate. Held—such a contract is not enforceable, is against the policy of the law, and cannot be countenanced in a court of justice.</p> <p>[The facts of the case are stated in the opinion of the court.—Rep.]</p> <p>1. The validity and effect of a will, dated before the Revised Statutes took effect, must b e determined by the laws previously in force. Rev. Stat. 697, chapter 106, sec. 26.</p> <p>2. The object and design of the 20 th sec. of chap. 106, Rev. Statutes, page 696, was not merely to fix a rule of construction, but to alter the legal effect of a residuary devise, so that a legacy lapsing shall pass as in case of intestacy,and notasheretofore to the general residuary devisee; wherefore it is embraced bythe provisions of sec. 2 6th, Jbid.</p> <p>3. Before the Rev. Stat. took effect, the residuary legatee was entitled to whatever personal estate (editor as to real estate) might fall into the residue by lapse, invalid disposition, or other accident. Williams on Executors, vol. 2, 1250; Kent's Com. vol. 4, 541 side page; Jar-man on Wills, vol. 1,304¡note 1, page 520; Cambridge vs. Rouse, 8 Ves. 25. For the reason, see Williams on Executors, vol. 2, page 1250»</p> <p>4. A residuary bequest of personal estate,before the Rev. Statutes took effect, carried not only every thing not disposed of, but everything that in the event turns out not to be disposed of. Cambridge vs. Bouse, 8 Ves. 35; Taylor vs.Lucas, 4 Hawks 215; Davis vs. King, 2 Ird. oh. 203; Vick vs. McDaniel, 3 How. Miss. 337. Very special words are necessary to change the operation of this rule. Bland vs. Lamb, 2 Jad. ¿j' Walk. 406,</p> <p>5. Testator bequeathed to the wife one-third part of his personal estate,and the other two-thirds to residuary Iegatees;the bequest to the wife lapsed by her death before the testator. Held—that the personal property bequeathed to the wife becomes a part of the residuum, & passed under the will to the residuary devisees.</p> <p>6. The guardian of C agreed with C’s grandfather to resign as guardian that the grandfather might be appointed in his place,and thereby acquire control of the person and estate of C; in consideration whereof the grandfather agreed that he would give to the ward C a child’s part of his estate. Held —such a contract is not enforce able, is against the policy of the law, and cannot be countenanced in a court of justice.</p>

Case 5. APPEAL FROM WHITLEY CIRCUIT. Case Stated. On the 15th October, 1854, John Smith, Presiding Judge of the Whitley County Court, issued his warrant for the arrest of Moses Cummins, charging with killing William Sammons, by stabbing him with a knife.

Case 6. Bastabdv. APPEAL FROM MORGAN CIRCUIT. The county judge of Morgan county issued his warrant against the defendant, in which it is stated that “Leah Sexton, of said county, single woman, hath, upon oath, declared before me, William Lykins, county judge in and for Morgan county, Kentucky, that on the 26th day of October, now last past, at the house of her residence in the county of Morgan, and state aforesaid, she was delivered of one male bastard child,” and that John…

Case 7. APPEAL FROM FLEMING CIRCUIT. The act of Feb. 18-, 185.4, session acts 1853-4-, 18, authorizes the county judge to hold special terms of his court, if “the necessity exists for the immediate action of the court in regard to any other business over which the court has jurisdiction.” Now it is evident to every one that no urgent necessity can exist for a special court to authorize the retailing of liquor, for that is the only purpose for which a license is obtained.

Case 8. APPEAL PROM CAMPBELL CIRCUIT. The words of the statute under which this proceeding was instituted, not less than the heavy penalties denounced, show that it was against banking games— a contrivance or machine constructed for the purpose of gaming, in contradistinction to mere games of amusement.

Case 9. APPEAL FROM FRANKMN CIRCUIT. The corporation of the city of Frankfort contracted with the Bridge Company to convey water through pipes attached to the bridge. It is insisted that the city council had power to make such contract, and that the bridge company had also power, and if made, even by parol, by the council or by its authorized agent, it is binding on the city. Angelí and Aimes, on Corp., 219.

Case ío. CinKnl4Il CASE. APPEAL PROM GRAYSON CIRCUIT. Meredith was indicted and tried for murder in killing William Ireland. The jury found the prisoner guilty of manslaughter, .and fixed his punishment by two years confinement in ithe penitentiary. An appeal has been allowed by ¡a judge of this court. The only question presented for .the decision of ■this court is, whether the circuit court erred in its instructions ,to the jury.

Case 11. Orb. Pet. APPEAL FROM MADISON CIRCUIT. The appellee brought his suit on the 5th September, 1856, for the recovery of $173 90, alledged to be due on accountfor goods, wares, and merchandize sold and delivered, referring to the account filed for particulars. The account was not filed until the 23d September, 1856, and is only for the sum of $172 05.

Case 12. Will Case. APPEAL FROM FAYETTE CIRCUIT. Cíase Stated. This case involves the probate of John Overton’s will. It was an appeal to the circuit court from the decision of the county court, rejecting the will, and upon atrial by a jury in the circuit the finding of the jury was in favor of the will, and judgment rendered in favor of the will, and the heirs have appealed to this court. The contestants of the probate of the will complain of the instructions of the court.

Case 13. Pet. Ea. APPEAL FROM TRIGG CIRCUIT. The appellants counsel contends that the circuit court erred in dismissing his petition, and should have rendered a judgment subjecting the land discribed to the payment of his judgments at law. [3 B. Monroe, 115.] The suits in which the judgments were rendered were pending, and judgments rendered on the same day that the land was conveyed by the defendant to the judgments; the vendor never surrendered the possession to the vendee.

Case 14. Qrd. Pet. APPEAL FROM HOPKINS CIRCUIT. This is the second time this case has been before this court. Held: that one deputy Sheriff had no right to purchase at a sale made by another deputy of the same principal. (See also, Worland vs Kimherland, 6 B. Monroe, 610.) 4. The fifth instruction should have been given, as asked by defendant.

Case 15. APPRAL FROM FRANKLIN CIRCUIT. Case Stated. This suit was brought by Miller Easly, executor of Woodson G. Easley, against Martha A. Easley, the widow of said Woodson G. Easley, to recover several slaves alleged to be the property of the testator at his death. The defendant, by her answer, denied that she detained the slaves; denied that they were the property of plaintiff’s testator, and denied the plaintiff’s right to the possession of them.

Case 16. Pet. Ea. APPEAL PROM LINCOLN CIRCUIT. It is clearly deducible, from the language employed in the Code of Practice, chapter 12, sections 574 to 585, that the court of appeals alone has power to reverse judgments of the circuit court in all cases, except those expressly enumerated in these sections and sub-sections.

Case 17. Pet. Eq. APPEAL FROM MADISON CIRCUIT. Case State». Hawkins and wife brought this suit in the Madison •circuit court against Lambert, Smith, and others, ■residents of Rockcastle county, to recover a sum of money alledged to be in the hands of Smith, received ■from the commissioner of pensions on account oí¡ a pension granted to Mrs. Hawkins, and John and Solomon Lambert, her half brothers, children of the widow of Edward Williams, for his services in the…

Case 18. Pet. El. APPEAL FROM GARRARD CIRCUIT. The appellant takes the following grounds for reversal: 1. Held: that in all cases where the husband is seized of such an estate in lands as that the issue of the wife may inherit, if any she have, as heir to the husband, the widow is entitled to dower.

Case 19. Per. Ea, APPEAL FROM GARRARD CIRCUIT. Though we have not been able to find a case in every respect precisely like this, we think the principles deducible from all the authorities stand opposed to the decision of the circuit court. The object, purport, and legal effect of the separate assignment of Teeter, and of the partnership assignment of Teeter, Maxey & Co., was to secure the whole debt due to the appellants, and not a part of each.

Case 20. Ord. Pet. APPEAL FROM PULASKI CIRCUIT. Love bet Harris and Elliott a horse at $140 against their note for that sum, that Fillmore and Donelson would get the electoral vote of Kentucky for President and Yice President of the United States at the presidential election to come off in 1856.

Case SI. APPEAL FROM FRANKLIN CIRCUIT. The only question is, whether the court erred in refusing to permit Dabney Todd to be examined asa witness? He was a competent witness for the plaintiff according to the Code of Practice, sec. 670. It was argued in the circuit court, that the witness was interested in making Luckett a partner, and thereby lessening his own responsibility; but there is no weight in that objection.

Case 22. Orb. Pet. APPEAL PROM CARROLL CIRCUIT. The plaintiff, C. T. Dean, at the instance of the defendant, English, ordered a mowing machine from the other plaintiffs, (the makers and owners,) and the defendant, English, failing to pay for it, and Dean being bound to the other plaintiffs, paid them the price of the machine, and this suit was brought to coerce the money from English—Dean and the original makers and proprietors joining in it as plaintiffs.

Ca0e23* OnD. Pet. APPEAL PROM SHELBY CIRCUIT. The proof shows that Dr. Guentz had rented Shelby College from Dr. Waller, and himself became president thereof, and that he associated with him in the management of said college, the appellee, Col. Morgan, as vice-president, and published to the world that the college would be under the joint control of Guentz and Morgan, as president and vice-president.

Case 24. Pet. Eq. APPEAL FROM FAYETTE CIRCUIT. The judgment in this case is not only erroneous to the prejudice of Todd’s estate, in some of its details, but is wholly erroneous in its principles—First. Because the estate is not liable to any extent on account of the failure of the plaintiff to recover the land, the title to which had descended to them from their mother. Secondly.

©ase 25. Pet. Ea. APPEAL FROM SHELBY CIRCUIT. It is a rule, in the construction of wills, that an heir at law can only be disinherited by express words or necessary implication. (1st vol.

Case 26. Pet. Eft. APPEAL PROM LETCHER CIRCUIT. Case Stated. Stamper filed his petition against Elisha E. Breeding and others, to compel a conveyance of a tract of land which had .been conveyed to Breeding, alledging that he held a bond for a conveyance of the same land anterior in date to the conveyance to Breeding.

Case 27. Pet. Ea. APPEAL FROM WARREN CIRCUIT. Case Stated. Edmund H. Powell, on the 7th April, 1854, filed his petition in equity to recover from William Gossom $466-§, the amount of a note alledged to have been executed to him by Gossom on the 22d Sep., 1836, payable one year after date, and which he alledged was lost.

Case 28. Pet. Eq. APPEAL FROM HANCOCK CIRCUIT. Case Stated. On the 18th July, 1854, C. L. Harris, one of the firm of C. L. Harris & Co., William Stapp being the other member of the firm, against the consent of Stapp, made an assignment of the partnership property to O. F. Stirman, which amounted nominally to about $10,000 in value, to secure the payment of about $4,000 due from the firm of C. L. Harris & Co. to Newland, Hughes & Co., and other beneficiaries named in the deed.

Case 29. APPEAL FROM LIVINGSTON CIRCUIT. This suit is brought against Samuel W. Patterson, and his sureties on his bond, given as administrator of Samuel Patterson deceased, for an alledged devastavit. The defendants answered, and the plaintiff demurred to the answer. The court sustained the demurrer on the ground that the plaintiff’s petition was defective, and rendered judgment for the defendants, and the plaintiff has appealed to this court. 1.

Oase 30. Qrd, Pet. APPEAL FROM CRITTENDEN CIRCUIT. The judgment in this case should be reversed on the following grounds: 1.

Case 31. Ord. Pet. APPEAL FROM KENTON CIRCUIT. Case Stated. The appellant granted to appellees the right of way for a railroad to pass through his land; in preparing that way it was necessary to make a deep cut in the ground through which the way was to be enjoyed. This suit was brought by appellant against appellees for the failure of appellant to build walls on the side of the ditch to prevent the falling in of the sides of the cut, and thereby injuring the appellant.

<p>1. The 875th sec. of the Code of Practice, repeals all statutes and laws in force in this State, in any case provided for, or Inconsistent with, its provisions,, whereby, the provisions of the Revised Statutes on the subject of the jurisdiction of this court are repealed.</p> <p>2. The interest due upon a debt, at the time an action is commenced, constitutes a part of the amount in controversy, under the provisions of the Code; and where debt and interest exceed $100, this court has jurisdiction of an appeal.</p> <p>3. It is erroneous to give an instruction requiring the jury to find that a note sued on had been executed by defendant, when the execution of the note was not put in issue.</p> <p>[The facts of the case appear in the opinion of the court. Rep.]</p> <p>1. The 875í/¿ sec. of the Code of Prac. repeals alt statutesand laws in force in this State, in any case provided for, or inconsistent with,its provisions, whereby, the provisions of the Revised Statutes on the subject of the jurisdiction of this court are repealed.</p> <p>2. The interest due upon a debt, at the time an action is commenced, constitutes a part of the amount in controversy, under the provisions of theCode; and where debt and interest exceed $100, this court has jurisdiction of „ an appeal.</p> <p>3. It iserroneous to give an instruction requiring the jury to find that a note suedon had been executed by defendant, when the execution of the note was not put in issue.</p>

Case 33. Pet. Ea. ABPEAL FROM LEWIS CIRCUIT. This is an action brought by Seaton against Clark, &c., to recover damages for pealing bark on his land. The judgment in the action is erroneous for the following reasons: 1. The court rendered judgment by default for $300, without the intervention of a jury to assess damages.

Case 34. Chancery. APPEAL FROM WARREN CIRCUIT. Argued—1st. It is insisted that the appellee has failed to show title to the land which he seeks to recover. The reversal of the decree of the circuit court, under which the land was sold in 1830, which reversal took place in 1831, rendered the deed executed by the commissioner who made the sale invalid.

Case 35. Pet. Eq. APPEAL FROM PULASKI CIRCUIT. The sale made by the executors of Jasper, of the land, ought to be set aside on three grounds. 1. The sale was made contrary to the provisions of the will, and to the prejudice of the beneficiary under .the will. 2.

<p>1. When a will has been admitted to record by the county court, tho Chancellor has no j.risdietion to vacate the action of the county court, on a petition in equity to set aside the will. The only mode of reaching that object is by appeal to the cireuitcourt. {Rev. Stat. 28, 29; Civil Code, sec 20.)</p> <p>2. An original proceeding in equity to vacate a will which has been admitted to record in the county court,is allowable in twocases only:</p> <p>1. To impeach a decision of a circuit court affirming an order of probate, upon grounds that would give a court of equity jurisdiction over any other judgment at law as provided by the Rev Stat. chap. 106, sec. 36,pagelOti. 2. In behalf of non residents, and others interested in the probate, who were not parties to the proceeding, by actual appearance or service of process. {Chap. 106, sec. 38.)</p> <p>3. A petition seeking a division of an estate will not confer jurisdiction on the Chancellor to set aside a will which he had not, independently of the purpose of division.</p> <p>4. Failing to demur to a petition in equity, or object to the jurisdiction of the Chancellor in the circuit court, will not prevent the party from availing himself of the objection to the jurisdiction in the court of appeals. {Civil Code, sec. 123.)</p> <p>[The facts of the case, so far as necessary to understand the point decided, are set out in the opinion of the court. Rep.]</p> <p>X. When a will has been admitted to record by the countyeourt, the Chancellor has no jurisdiction to vacate the action of the county court, on a petition in equity to set aside the will. The only mode of reaching that object is bv appeal to the circuit court. (Rev. Sint. 28,29; Civ. Code, sec. 20.)</p> <p>2. An original proceeding in equity to vacate a will which has been admitted to record in the county court, is allowable in two cases only : X. to impeach a decision of a circuitcourt aflirming an order of probate, upon grounds that would give a court of equity jurisdiction over any other judgment at law as provided by Rev. Stat. chap. 106, sec. 36,y>aye700. 2. In behalf of non-residents, and others inter ested in the probate, who were not parties to the proceeding, by actual ap • pearance or service of process. (Chap. 106, sec. 38.)</p> <p>3. A petition seeking a division of an estate will not confer jurisdiction on the Chancellor W set aside a will which he had not, independently of the purpose of division.</p> <p>4. Failing to demur to a petition in equity,or object to the jurisdiction of the Chancellor in thecircuit court, will not prevent the party from availing himself of the objection to the jurisdiction in the court of appeals. (Civ. Code, sec. 123.)</p>

Case 37. Obd. Pet. APPEAL FROM BOONE CIRCUIT. Insisted on a reversal of the judgment of the circuit court on the following grounds: 1. Held: used, and occupied under Carneal’s deed, and by passing, the materials each way from the mill to the river, and passing water from the river to the mill for generating steam, and by an actual inclosure existing nearly all the time; and it was not until 1851, about nineteen years and a halt after the mill had been commenced, and some…

Case 38. Ord. Pet. APPEAL FROM MASON CIRCUIT. Case Stated. Appellant, Lucien S. Luttrell, subscribed to a subscription paper of stock in the Maysville and Lexington railroad company, having the following caption: “We, the undersigned, citizens of Mason coun- * ty, state of Kentucky, hereby subscribe for the ‘ number of shares, in the capital stock of the Mays- ‘ ville and Lexington railroad company, set opposite ‘ our names, respectively, and hereby promise and £ agree to…

<p>1. Limitation at law begins to run from the perpetration of the fraud; in chancery, from the discovery thereof. (Pyle vs. Beckwith, 1 J. J. Marsh. 445.)</p> <p>2. Upon the sale of a slave by one without title and without warranty, right of action accrues, and limitation begins to run from the day of sale. (Scott vs. Scott, 2 Mar. 218.)</p> <p>3. A clerk makes a negligent or fraudulent entry upon the boots of his employers, whereby loss accrues to them: Held, that the cause of action accrues and limitation begins to run from the date of the entry. (Miller vs. Adams, 16 Mass. 456; Mather vs. Oreen, Mass. 60; Bank of Utica vs. Cliilde, 6 Cowan, 238.) So for negligence of an attorney. (Howard vs. Young, 5 B. S¡ C. 259; also, supra.</p> <p>1. Limitation at law begins to run from the perpetration of the fraud; in chancery, from the discovery thereof. (Pyle as. Beelcmtk, 1J. J. Marsh. 445.)</p> <p>2. Upon the sale of a slave by one without title and without warranty, right of action accrues,and limitation begins to run from the day of sale. (Scott vs. Scott, 8 Mar. 218.)</p> <p>3 A clerk makes a negligent or fraudulent entry upon the books of his employers, whereby loss accrues to them: Held, That the cause of action accrues and limifl tation begins to run from the date of the entry. (Miller vs. Adams, 16 Mass. 456; Mather vs. Green, Mass.60; Bank of XJtica vs. Ghilde,6 Com-en, 238.) So for negligence of an attorney.—• (Howard vs. Young 5 B. S¡ G. 259 ¡also, supra.</p>

<p>Case 40.</p> <p>Pet. Ea,</p> <p>APPEAL FROM MONTGOMERY CIRCUIT.</p> <p>This is a suit brought, in ordinary, on a note executed by C. W. Daniel and wife to plaintiffs’ assign- or. Mrs. Daniel relied upon coverture as her defense. Daniel did not defend, consequently a judgment was rendered against him, and the cause transferred to the equity docket, with the view to subject to the payment of the debt certain estate held in trust for the benefit of the wife and her son Jesse.</p> <p>Can it be done under the pleadings and state of facts as exhibited in this record? We assume it cannot, for the reasons following:</p> <p>1. The debt sued for is not the debt of the wife.</p> <p>2. It is not alleged that she had anything to do with the contracting the debt, or that it was done with her approbation and consent; nor is it alleged that she advised or consented to the building of the house on the trust land.</p> <p>3. It is not alleged or shown that the improvments alleged to have been made were necessary and proper.</p> <p>4. The wife had no such interest in the estate as could be made subject to the debt.</p> <p>5. If the decree as rendered by the court below be permitted to stand, the entire purpose of the trust, as expressed on the face of the deed, may and will be defeated.</p> <p>The judge of the circuit court, in the decree rendered, recites the authority upon which he bases the decree, none of wdiich justify, in our opinion, the conclusion at w'hich he arrives, but establish just the opposite conclusion, under the state of facts shown in this record.</p> <p>Coverture is a complete defense at law, subject however to certain exceptions, not applicable to this case. Shall the chancellor bring this case within any of the exceptions recognized by former adjudged cases; we insist not, because of the absence of allegation or proof that it was the debt of the wife, or that it was contracted for necessaries, or that the improvements enhanced the value of the estate. But above all, it is apparent, from the deed, that the donor’s prime object was to secure a comfortable support to his daughter, and the support and education of her children.</p> <p>Jesse Daniel, Jr., under the deed, has the right to be supported and educated out of the profits of the estate. How can this be done if the chancellor has the right to appropriate the whole profits of the estate to the payment of debts contracted by a prodigal father? If the estate can be used in the way proposed, to pay this debt, it may be so used for the next, and the next, and so on ad infinitum, and the support and education of the grand-son wholly prevented. This was surely never intended'to be so by the grand-father.</p> <p>We invite the attention of the court to the deed of trust, and ask a reversal.</p> <p>Argued : The note upon which this action is originally based was executed by Mrs. Daniel and her husband, in consideration of work and building done upon land held in trust for her and her children.</p> <p>It is contended that the note was an agreement to bind her separate estate, and created a charge thereon. ( Wilkinson vs. Jarman, 7 B. Monroe, 293; Sweeney vs. Smith, 15 lb. 326; Bell <Sf Terry vs. Keller, 13 lb. 384; Burch vs. Breckinridge, 16 lb. 482; Hill on Trustees, 617; Roper on Husband and Wife, volume 2, pages 248-750.)</p> <p>It is objected, that the note was executed without the assent of her trustee, and does not therefore bind the separate estate of the wife. “The established ‘ doctrine is, that a married woman can bind her sep- ‘ arate property without the assent of her trustee, un- ‘ less such assent is made necessary by the instrument ‘ giving her that property.” (Essex vs. Atkins, 14 Vesey, 542, quoted in Roper on Husband and Wife, Lib. ed. vol. 11, side page, 252.) In the deed creating the trust, in this instance, there is no clause requiring the assent of the trustee.</p> <p>The judgment of the circuit judge only subjected rents and hire, that is, the profits of the estate here sought to be wholly subjected, of which appellee complains by cross-error, and insists that the wife’s whole interest should have been so subjected.</p> <p>Trusts are of two kinds, passive and active. In the first the trustee is only the repository of the legal title ; in the latter there is active duty coupled with the trust. The trust by which, the separate estate of the wife is held in this instance is passive, and the beneficial interest in the lands and slaves is in Mrs. Daniel for life, and is therefore subject to her liabilities to that extent.</p> <p>The case of Burch vs. Breckinridge, supra, is relied upon as sustaining the decree in regard to subjecting hire and rents only. It does not sustain it as we contend. In that case the court base their opinion upon the absence of any writing intending to charge the wife’s separate estate, and indulge the presumption that she only intended to charge the profits thereof: In this case there is a note given for houses built and work done, and not for current expenses, as in the case supra. In this case it is charged, and not denied, that the wife intended to charge her separate estate when she executed the note. In every case where the profits of the separate estate of the feme only was subj ected, it will be found that the trust was an active, not & passive, trust.</p> <p>Great injustice might result to the appellee in being thus compelled to await the accrual of hire and rents, in this, that the wife’s estate and interest might terminate by her death.</p> <p>An affirmance is respectfully asked upon the original appeal, and a reversal upon the cross-appeal of appellee.</p>

Case 41. Ord. Pet. APPEAL FROM JEFFERSON COUNTY COURT. Argued: That the bank brings this case to this court for the purpose of having the question it presents settled. The bank objects to the right of parties to cut her notes as they may choose, thus changing the shape of contracts at will, and sue her on pieces, leaving her to be sued and harrassed by holders of other pieces.

Case 42. Pet. Eq. APPEAL FROM GREENUP CIRCUIT. Argued: The judgment of the circuit court, in dismissing plaintiffs’ petition, is erroneous for the reasons following: 1. The possession of the land in controversy was constructively in the Harlans for more than forty years before any hostile entry by Seaton upon any part of it. 2. We think the evidence of the execution of the deed by Thomas Keith to Joshua Harlan, in 1794, is ample.

Case 43. pET- ga- APPEAL FROM KENTON CIRCUIT. The appellees, Keturah M. Williamson and James T. Williamson, in March, 1855, filed their petition in the Kenton Circuit Court, stating that they are each over twenty-one years of age, and children of defendant, Jane M. Williamson, who is the wife of Geo. T. Williamson, and daughter of the late General James Taylor, who died in Newport, Ky., the place of his residence.

Case 44. Pet. E«. APPEAL FROM LOUISVILLE CHANCERY COURT. Argued—I would suggest, on behalf of appellees, that while this proceeding, if regarded as a statutory proceeding, is irregular, that it is not a case within the contemplation of the statute. The application was directed to the general power of a court of equity.

Case 45. Pkt. Eq. APPEAL PROM LOUISVILLE CHANCERY COURT. The appellant contends that by the will of James Eubank two distinct classes of slaves named in the will to-wit, the increase of the woman Teny, named in the first clause, and the increase of Mariah and Milly Ann, named in the third clause, passed and were devised to Margaret Ray for life.

Case 46. Ord. Pet. APPEAL FROM FRANKLIN CIRCUIT. Argued—1st. The power conferred by the writing relied on as giving authority to use the name of Cronly and McMurtry is evidently limited to the duration of the partnership of pronly and McMurtry; when the partnership ceased the power ceased to use the partnership name.

<p>1. As a general rule, an agent who exceeds his powers becomes personally responsible to those with whom he deals.</p> <p>2. Those who deal with the servants or officers of a corporation created by statute, are bound to take notice of the powers conferred by the act of incorporation; not so in ordinary cases, where the power of the agent is known only to himself and his principal.</p> <p>3. It is the duty of those who deal with the officers of a bank to know the extent of the power conferred by the charter under which the bank acts. This is the general rule, and as a general rule a party cannot complain of want of knowledge of that of which he is bound to take notice.</p> <p>i. As a general ru,le> au powers becomes sponsible7 , r®¿ thosewith whom</p> <p>2. Those who deal with the servants or officers of a corporation created by statute, are bound to take notice of the powers conferred by the act ofincorporation; not so in ordinary cases, where the power of the agent is known only to himself and his principal.</p> <p>3. It is the duty of those who deal with the o fficers of a bank to know the extent of the power conferred by the charter under which the bank acta. This is the general rule, and as a general rule a party can not com plain of want of knowledge of that of which he is bound to take notice.</p>

Case 48. Mandamus, APPEAL FROM MARSHALL CIRCUIT. 1. The circuit court, by the provisions of the Civil Code, (sec. 526.) has the right, on motion, to award a peremptory mandamus to compel “an executive or ‘ ministerial officer to perform an act, orto omit to do ‘ an act, the performance or omission of which is enjoined by law.

case 49. AGREED CASE. Fees. APPEAL FROM MARSHALL CIRCUIT. Case Stated' At the court of claims in October, 1856, of the Marshall county court, the clerk of said court presented a fee bill for his services as clerk, in making and copying public orders in the county court, and demanded that the same be allowed and paid, which was refused by the court.

Case 50. Pet. Ea APPEAL FROM KENTON CIRCUIT. The facts of this case present the following questions— I. Is the property levied upon and sold, subject to levy and sale? II. Held: “that the ‘ directors of the Concord railroad company were au1 thorized to make a mortgage, not only of the exist-1 ing property of the road, but of the corporate rights 4 and franchises and of the railroad itself as an entire 1 thing.

Case 51. .Pet. E«.. APPEAL PROM GREEN CIRCUIT. The appellees rely on two grounds to sustain the opinion of the circuit court dismissing the petition of appellants: 1. That the trustees, by virtue of the bill of sale from Mrs. Richardson to them, of the 26th of October, 1841, acquired the absolute property in the slaves in contest. 2. That in the death of Mrs. Richardson all interest she had in the slaves passed to her husband who survived her, and not to her administrator.

Case 1. Indictments. APPEALS PROM VARIOUS CIRCUITS. My impression at first was that this court had not jurisdiction, but upon a careful examination of the statute my doubts upon that subject are removed, as more may be recovered than the $ 100 fine.

<p>Case 2.</p> <p>Order upon a Rule.</p> <p>APPEAL FROM KENTON CIRCUIT.</p> <p>This is a case of absolute suspension from the practice of the law, on proceedings under a rule, “to ‘ answer the charge which has come to the knowl- ‘ edge of the court, of making an improper change 1 in a writing offered in evidence.”</p> <p>This “writing” was an unauthenticated copy from the letter book of the Kentucky Trust Company Bank—that being an impression of a letter written by the President. The “change” made upon it, was simply the addition of the word “Prest.” after the name of the President. The “writing” was offered in evidence by another party—and was in fact received as offered—and that, too, after the “change” made upon it, had “come to the knowledge of the court.”</p> <p>The appellant claims that the proceedings in this case were irregular, illegal and oppressive; that the judgment is erroneous and unjust. So far from appellant being guilty of malpractice or even “improper’ ’ conduct, it is submitted that there is nothing in the evidence, when calmly and impartially considered, but what can be reconciled with the strictest integrity, and the highest sense of professional honor!</p> <p>The court, in the first place, very properly—if indeed there was anything in it—appointed a committee of the bar to investigate the charge. The appellant sensible of the spotless character, which, as a member of the profession of law, it was his duty to maintain, and desiring a strict and impartial investigation of his conduct and character, assented, as the record shows; to this appointment. But strange to say, the court, in the absence of appellant —after he had assented to the first order, and while he was, as may well be supposed, making arrangements for the investigation—set aside this order upon its own motion, and at the same time issued the r&fe under which these proceedings were had!</p> <p>As the record does not show that appellant excepted to the order being set aside, it may not, perhaps, be relied upon as error; but it is submitted that it was unjust and oppressive—that it indicated at the outset unusual and unwarranted severity on the part of the court.</p> <p>The main questions raised upon the record, and relied Upon as sufficient, separately, to justify the reversal of the judgment, are—</p> <p>1st. The court erred in overruling the motion to set aside the rule for want of affidavit.</p> <p>2d. In overruling the motion requiring interrogatories to be filed.</p> <p>3d. In overruling the questions put to Finnell by appellant.</p> <p>4th. The judgment could only be rendered upon information or indictment, through the intervention of ajury.</p> <p>5th. The judgment should have been, in effect, confined to the Kenton circuit court.</p> <p>6th. The answer of appellant fulfilled the requirement of the rule.</p> <p>7th. The charge is insufficient to sustain the judgment.</p> <p>8th. The judgment is not sustained by the evidence.</p> <p>1st. The rule is based upon a charge that had come to the knowledge of the court. The act complained of, therefore, was not committed in its presence. Judicially, the court could have no knowledge of it; and it could not act upon the charge until it was supported by affidavit. {Ex parte Burr 9th Wheaton, page 529; Tidd’s Pract. Ath Am. Ed. ml. 1st, p. 88; Hawkins P. C. 2 ml. p. 214.)</p> <p>2d. The rule is uncertain and singular, to say the least. It did not indicate to appellant whether he was to be tried for malpractice, contempt, or some imaginary crime. By dispensing with an information, supported by affidavit, appellant was deprived of his right to meet his accuser face to face, upon a definite charge, and interrogatories were doubly necessary, firstto indicate the real nature of the charge, and, second, to give appellant"an opportunity to put an end to the proceedings. The practice is to dismiss the case upon the sworn denial of the charges set forth in the interrogatories, when the acts complained of were committed out of the immediate presence of the court. (4th Black. Com. 287.)</p> <p>3d. The questions put to Finnell by appellant, were clearly pertinent: “Do you believe that Mr. Rice intended to do any one any wrong, by making that alteration?”</p> <p>“Have you not said you did not believe Mr. Rice intended to wrong any one, by making the alteration in question?”</p> <p>These questions were put to what was really the accuser. He was not required to support the charge by affidavit, or even put it in writing. There would seem to be a reason for this. The charge was first made under excitement—on reflection, he was convinced of its injustice. In his evidence he in fact admits that the legal effect of the letter was the same with or without the word Prest. And now when asked directly, he was not permitted to do full justice to appellant, and say, as he doubtless would have said—else the objections would not have been made—that on reflection, he was satisfied there was no wrong intended. As a man of truth and honor, it was due no less to himself than it was required for the purposes of justice—for without the qualifications, which the answer to these questions would have given, his statements are not entirely reconciled. The witness is really forced into a false position, and gi’oss injustice is done appellant.</p> <p>4th. This was in fact a criminal pi’oceeding. The rule was issued in the august name of the commonwealth. The prosecutor, with assistant counsel, is appointed by the court to attend to the immense charge. A solemnity and importance is given to the case, second to none in the criminal records of the court. The only'difference is, in this case the court appears in the triune character of accuser, jury, and judge. The objection to the judgment is, that it could oxjly.be rendered upon complaint, infox’mation, or indictment, after a jury had found the facts charged. (Fisher's case, 6 Leigh Rep. p. 626; 1st Statute Law of Kentucky, page 172.)</p> <p>This statute is still in foi’ce, (Rev. Stat. p. 12.7, sec. 5; Constitution, p. 69, sec. 8.) This statute provides that if the general coui’t detect any malpractice in a counsel, or if a complaint in writing be made, the party accused shall be summoned to- show cause why an information should not be filed against him—and if such information be ordered, and he be found guilty of the matter therein charged, the court may either suspend . his license or vacate it altogether.</p> <p>The general court was abolished in 1851; but by section 7th of the same act, the jurisdiction of that court to hear “any suit, action, or motion, in the name of the commonwealth,” is vested in the Franklin circuit court.</p> <p>This statute governs the present case—and as it is one of those cases in the name of the commonwealth, in which the general court had special jurisdiction— the Franklin circuit court, and not the Kenton circuit, has jurisdiction of it.</p> <p>5th. The judgment of the court is, not to strike appellant’s name from the roll of attornies practicing at this bar—which would be in fact the same as annulling his license—but the language is more general, and stronger—to strike his name from the roll of attornies “admitted to the practice of the law at this bar.” That is, appellant having been admitted to the practice at this bar, he shall no longer be allowed to practice anywhere!</p> <p>The language of the judgment, as doubtless also the supposed power to disbar, informally, are taken from the Common Law. But attornies are not admitted to practice in Kentucky as they are in England. Here the applicant is first required to obtain from the county court an order certifying to his “honesty, probity, and good demeanor;” and then to be examined by two circuit court judges. It is therefore supremely absurd for one judge to disbar an attorney, when three are required to admit him to prac tice.</p> <p>6th. The rule required appellant—not to show cause why he should not be disbarred for making the improper change, but to “answer the charge.” He did answer fully, denying that he had made any improper change. The rule was therefore at an end. If it was not absolutely dead, it certainly had not life enough to support the terrible judgment of professional annihilation! Such is not the general practice at least. (1 Tidd's Practice, p. 88.) 7th. Neither the nature of the “writing” nor the nature of the “change” is indicated in the charge;” and no intention is charged. The term writing indicates that it had no legal character; and the “change” may have been made by accident or mistake.</p> <p>The power to disbar cannot be exercised without good cause. It is given to the court, or rather it can be exercised by it, only to protect its own dignity. Mere contempts are punishable by fine and imprisonment; and nothing short of malpractice, attended with fraud and corruption, will justify absolute disbarring. (Bacon's Ab. ml. 1, p. 206; Statevs Chapman, 11 Ohio, p. 433; Hawkin's P. C. 2d vol. p. 219, note/, 3d Thomas Coke,p. 325, note.)</p> <p>8th. If there is nothing in the charge, when taken as true, to support the judgment, it is fair to presume that it is owing to an absolute want of evidence, for the record indicates throughout no want of disposition on the part of the prosecution to push the matter to extremes, while the witnessses in the case, without an exception, are judges and lawyers. But this is not merely a presumption. When calmly and impartially considered, so far from there being anything even improper in the conduct of appellant, the evidence shows that appellant acted with the strictest fidelity. And instead of injuring any one, or intending to do so, he was in fact the victim throughout.</p> <p>The truth is, that the letter furnished appellant by Finnell was not a true copy of the original, or of the impression in the letter-book, for all admit that there was something after the president’s name in the latter, and from which even the court, at first sight, made the word Prest. Park swears that it was upon the original, and should be upon the copy from the letter-book; and, at his suggestion, the change was in fact made. Finnell himself admits that the legal effect of .the letter was the same, with or without the word Prest. It was never denied-that the original letter was written by the president, and regularly entered upon the letter-book. But this • is not all, the copy was in fact received as offered, and this, too after the “improper change” had been observed. All this demonstrates the fidelity and entire propriety of appellant’s conduct.</p> <p>Plow utterly absurd it is to claim that this change was made with even an improper motive. It was made openly in appellant’s own hand, and Finnell’s attention was at least called to the omission. Finnell himself declined to supply it, not because the original did not authorise it, "but because it was unnecessary as the legal effect was the same. And notice was served upon Finnell to produce the very book that would expose the fraud, if fraud existed.</p> <p>It was a mere “writing,” and appellant had the same right to alter it that he had to alter any other unauthenticated paper which he thoug'ht required it.</p> <p>One witness is called to prove the making of the improper change; it is therefore a mere matter of veracity between the witness and appellant. But divers of the bar, including the prosecutor, are called to prove, not that appellant offered the writing in ■ evidence, but that he knew it was being so offered, .and was responsible for it. As the rule does not charge appellant with anything of this, the judgment cannot stand upon it, and it is not strictly necessary to reply to it. But this evidence suggests some interesting questions of professional ethics, and their examination will throw some light on the conduct of appellant. If the bench and bar of Covington are eminent for their dignity, propriety, and lofty sense of professional honor, any improper conduct will be less excusable. On the other hand, if appellant was not treated with that courtesy due to him as a member of the profession, he cannot be held so strictly accountable. And if a motive existed, on the part of any of the parties in the case, in which the “writing” was offered in evidence, to dispense with appellant, or take from him the chief management of the case, these proceedings are accounted for upon a very different theory than that of improper conduct on the part of appellant.</p> <p>The transcript of the case of Finned vs. Sandford, 4- Co., in which the “writing” was offered, was waived by consent of counsel; but it is on record in this court having also come up on appeal, and forms part of the evidence in the present case. By reference to the record in that case, it will be seen—that it involved, directly and indirectly, not less than $200,000,—that appellant had almost wholly attended to the preparation of the case for the defense, the evidence being mainly in depositions,—and that the copy was in effyct received as offered!</p> <p>This copy, at the opening of that case; was shown to Stevenson by appellant, as containing matter material to the issue; at the same time telling him that notice had been served to produce the book itself. Stevenson says: “I had a consultation,” not with appellant but “with Mr. Benton, and we determined not to use it.” But this is not all. After the evidence was in fact closed, and when Stevenson was arguing his instructions, he saw the importance of this letter. And now, too, without any consultation with appellant, offered it in evidence, or in fact insisted that he had regularly offered it, or that there was an agreement to that effect. ■ Appellant knew, but too well, that it had not been offered; and had he said anything, its effect would have been only to embarrass or delay the attempt Stevenson was now making to get it into the case. Under the circumstances, therefore, it is preposterous to claim that appellant should have interfered, or to hold him responsible for its being offered.</p> <p>After what he had told Stevenson, he might allow that distinguished gentleman to do or say what he pleased that did not compromise him. Mr. Stevenson says,—“from Mr. Rice’s serving notice to produce the letter book, I suppose he expected to use the original,” and also that he believed “he did not intend to use it on the first day of the trial;” and if Stevenson was laboring under a mistake it was his own fault, if there was any blame anywhere. But there is none. The affair was more like a “comedy of errors,” in which mistakes and truth play at “bopeep.”</p> <p>Much is said about the appearance and conduct of appellant at the time when this “writing” was offered, when the prosecutor, as well as the whole bar were “profoundly agitated at the painful occurrence.” But it will be seen that his conduct was entirely consistent with a sense of entire innocence. There was but one reply that could have been given to the charge of Finnell, and the roughness of Pryor, consistent with appellant’s self-respect, or his idea of what belonged to the dignity of an impartial court, and that reply could not be given in words, and certainly not in the presence of the court. Pryor’s object, however, was not to get an answer, for if the copy was not a true one, all he had to do was to object to it. He first tried to restrain Finnell, who, coming in suddenly and excited, had made the charge of “forgery,” not knowing who had offered it. But failing in this, and fearing a conflict with Stevenson, who had in fact offered it, Pryor turns to appellant and “asked him sharply why and when he had done this.” He was successful. By this adroit movement the storm which was about to break out between them and Stevenson was thus turned upon the head of an innocent spectator. The evidence shows that there was more than one party implicated. There was a double dilemma. Something had to be done to relieve the parties and to vindicate the dignity of the court! Can these proceedings be accounted for, or their glaring absurdities reconciled upon any other hypothesis?</p> <p>Appellant only was unmoved amid the terrible storm.. The prosecutor, who “sat by the judge upon the bench, and had his eye upon appellant,” says that when the question was raised, appellant called for the letter book, and pointing to the bottom of the page, exclaimed, with an air of triumph, “what do you call that but ‘prest.,’ or words to that effect.” Here is then the highest evidence of the fact, that appellant at least, believed himself to be right; and he may now well confidently rely upon the final triumph of the truth.</p> <p>The case is a new and novel one, yet it is not necessary to speak of its immense importance. Its decision involves no less the interests of the bar in Kentucky than those of appellant. It is humbly submitted, with the utmost confidence in the justice and wisdom of this honorable court.</p> <p>This appeal is prosecuted by Mr. Rice to reverse an order of the Kenton circuit court striking his name from the roll of attorneys admitted to practice in that court. ' .</p> <p>1. The Code of Practice (sects. 15 and 16) will decide the question of jurisdiction. Section 15 gives this court jurisdiction over the final orders and judgments of all other courts of this Commonwealth, subj ect to the exceptions in the section which follows. The present case does not come within the exceptions, and I am inclined to the opinion that the court has jurisdiction; in that opinion I may be wrong.</p> <p>2. Is the case, as made out, sufficient to authorize this court to interfere and reverse the order of the circuit court?</p> <p>The proof is very satisfactory that Mr. Rice obtained from Mr. Finnell, the agent or commissioner in winding up the affairs of the Kentucky Trust Company Bank, a copy of a letter taken from the letter book of the bank, purporting to have been written by B. F. Sandford, and added the word “Presi.” or. “President” at the end of Sandford’s name, for the purpose of being used as evidence in a suit then pending in court. The letter, as copied in the letter book, did not show it was written in the writers official capacity, and in order to give it an official stamp Mr. Rice added the word “President.” For this act the circuit court ordered his name to be stricken from the roll of attorneys of the court. Can this court say the order was not proper? But if doubts existed the order should not be reversed. {Exparte Burr, 9 Wheaton, 529; 5 Cond. Rep. -660.) In that case, the court decided, that whatever may be its authority, in that respect, the power to interfere will not be exercised unless where the conduct of the court below has been grossly irregular and unjust.</p> <p>The supreme court of the United States, at its last term, in the case of Secombe, gave a similar decision. {Sec. 19 Howard, page 9.) In that case the court said: “It has been well settled by the rules and</p> <p>‘ practice of common law courts, that it rests exclu- ‘ sively with the court to determine who is qualified ' to become one of its officers, as an attorney and ' counsellor, and for what cause he ought to be re- ‘ moved;” but the power to be exercised by a sound judicial discretion.</p> <p>And that is the question to be decided by this court. It seems to me there was no abuse of discretion by the circuit court in removing Mr. Rice from the bar. It is necessary as an example to others.</p>

Case 3- INDICTMENT. APPEAL RROM CAMPBELL CIRCUIT. The appellant was indicted under the 10thsec. chap. 42 Rev. Stat. page 390. The appellant demurred to the indictment, which was overruled.

Case 4. Indictment. APPEAL FROM MARION CIRCUIT. Cabe Stated.

<p>1 Ad action may be maintained against a judge of an election, where he refuses, when acting in that capacity, to permit a qualified voter to exercise the right of suffrage; but to sustain the action it is necessary to allege and prove that such refusal was knowingly wrongful, and not according to the honest convictions of the judge in respect to bis duty.</p> <p>3.In a suit against a judge of an election, for refusing to let the plaintiff vote, the petition must show that the refusal of the judge to admit the vote to be given, resulted in excluding the plaintiff from the exercise of suffrage. The refusal of one judge of an election to agree that a vote shall be recorded does not necessarily result in its rejection.</p> <p>3. By the provisions of the Rev. Stat. chap. 35, sec. 38, the record of naturalization in any other state must be attested by the clerk of the court where it exists, with the seal of the court annexed, if there be a seal, and certified by the judge, chief justice, or presiding magistrate of the court, to be attested in due form.</p> <p>4. The act of Congress of 1796, prescribing the mode of authenticating records, public acts, and judicial proceedings to be observed in other states, differs from the provisions of the Revised Statutes, and applies to the use of such records, &c., in courts—the Revised Statutes applies to their use in this state, and is applicable to their use for any purpose.</p> <p>5. The certificate of a clerk of a state court of Kentucky, to the record, is sufficient evidence of naturalization in the state. (Rev. Stat. chap. 35, sec. 18.)</p> <p>[The facts of the case are stated in the opinion of the court.—Rep ]</p> <p>1. An action may be maintained against a judge of an election, where he .refuses, when acting in that capacity, to permit a qualified voter to exercise the right of suffrage; but to sustain the action it is necessary to allege and prove that such refusal was knowingly wrongful, and not according to the honest convictions of the judge in respect to his duty.</p> <p>2. In a suit against a judge of an election, for refusing to let the plaintiff vote,the petition must show that the refusal of the judge to admit the vote to be given, resulted in excluding the pl’tiff from the exercise of suffrage. The refusal of one judge of an election to ■ agree that a vote shall be recorded does not necessarily result in its rejection.</p> <p>3. By the provisions of the Sea. Stat. chap. 35, sec. 38, the record of naturalization in any other state must be attested by the clerk of the court where it exists, with the seal of the court annexed,if there be a seal, and certified by the judge, chief justice,or presiding magistrate of the court, to be attested in due form.</p> <p>4. The act of Congress of 17-90, prescribing the mode of authenticating records, public acts,and judicial proceedings to be observed in other states, differs from the provisions of the Rev. Stat., and applies to the use of such records, &c., in courts—the Revised Statutes applies to their use in this state, and is applicable to their use for aiiy purpose.</p> <p>5. The certificate of a clerk of a state court of Kentucky, to the record, is. sufficient evidence of naturalization in the state. (Revised Stat. chapter 35, sec. 18.)</p>

Case 6. Pet. Eq APPEAL FROM FAYETTE CIRCUIT. ’Case Stated. In July, 1854, Jones sued Grooms in the Fayette circuit court, alledging th,at Grooms had fraudulently obtained from him a grey horse worth $120; and having made the proper affidavits, and given the bond required by law, with Logan as surety, obtained possession of the horse. Trial of this -action was had in February, 1855, and judgment was rendered for the defendant for $100 in damages.

Case 7. Ord. Pet. APPEAL FROM FAYETTE CIRCUIT. The alteration, mutilation, and patching were done with the fraudulent intent to defraud the Farmers Bank in this, that by the operation more notes were concocted and manufactured by this process than the bank ever issued or received value for.

Case 8. Forfeited ReCOGNIZANCE. APPEAL FROM MARION CIRCUIT. The two records form but one case.

Case 9. On». Pet. APPEAL FROM LOUISVILLE CHANCERY COURT. The attorneys employed by Mrs. Williams could not maintain suits for their services rendered in behalf of Mrs. Williams.

Case 10. Okd.Pet. APPEAL FROM JESSAMINE CIRCUIT. In a former suit between these parties the appellant, in his answer, set up and relied on in his defense the same contract on which- the appellee relies upon for a recovery in this suit. This, it is respectfully insisted, he cannot do.

Case 11. APPEAL FROM BOONE COUNTY COURT. The county court erred in its adjudications in this case. 1. The Rev. Stat. sec. 4, page 644, have no application to the case of appellant. The constitution of Kentucky went-into operation on the 11th day of June, 1850.

Case IS- QrD. Pet. APPEAL FROM FAYETTE CIRCUIT. Held: that as the ‘ accommodation parties could not sue upon upon it ‘ inter se, it was not, until it came to the hands of a ‘ holder for value, an available instrument, and there- ‘ fore an alteration before that time did not vitiate * it.” (Walton vs. Hastings, 2 Campbell, 223.) Lord Tenterden said, “the question is whether the…

Case 13. Ord. Pet. APPEAL FROM MADISON CIRCUIT, The question for decision is, whether there exists under the Code of Practice any remedy for the recovery of the right asserted in the petition?

Case 14. Rule op Court. APPEAL FROM GARRARD CIRCUIT. 1. No objection was made to the form of proceeding in the circuit court, and all irregularity, if any, must be considered as waived. The allegation of the petition were taken for confessed, consequently proof of value of the slave or hire wasjunnecessary. The principal question in the case is the effect of: the bond executed by the appellees- to the appellant to perform the judgment of the court in the suit'.

Case 15. Pet. Eq. APPEAL PROM BOYLE CIRCUIT. On the 20th Jane, 1854, John G. Pond desiring to raise money, procured ;he indorsement of Doneghy and Piarían, in the form of a bill of exchange, one being drawer and the other indorser raising thereby a fraction over three thousand dollars; and to indemnify them executed to them a mortgage, which was recorded.

Case 16. Pet. EqJ. •APPEAL EROM GARRARD CIRCUIT. Argued—1. Thatunder section6. art. l,chap. XCIII, Rev. Statutes, 628, which is in these words; “No free ‘ negro shall be capable of acquiring in fee, or hold- ‘ ing or owning for any length of time, as hirer or oth- ‘ erwise, any slave, other than the husband, wife, pa- ‘ rent, or descendant of such a free negro;” a free negro can acquire no property in a slave.

Case 17_ Motion. APPEAL FROM LOUISVILLE CHANCERY COURT. This is a motion to correct the mandate of this court, giving damages of ten per cent, on the dismissal of an appeal from a decree of the Louisville Chancery Court; and it was insisted that all laws giving damages in such cases were repealed by 748 sec. of Code of Practice. Provision is made for damages on affirmance of the judgments, &c., but none for cases of dismissing appeals.

Case 18, Pet. Ea. APPEAL FROM GREEN CIRCUIT. Case State®. This suit was brought in January, 1853, by Charles Martin and Lucinda, his wife, and Chas.

Caae 19. Pkt Et* APPEAL FROM BALLARD CIRCUIT. The executors of Manion resist the claim of appellees on four grounds: 1. That the title to the slaves in contest vested in Mrs. Cooper by her purchase, confirmed by the ordinary. 2. That the claim was released. 3. That this suit is carried on for the same illegal objects, and under the same illegal contract, as the first, and the dismissal of the former suit is pleaded and relied on as a bar to this suit. 4.

<p>Case 20.</p> <p>Okd. Pet.</p> <p>APPEAL FROM PULASICI CIRCUIT.</p> <p>1. The instructions of the court, given to the jury at the instance of the defendant, were erroneous, and particularly the second. That instruction is hypothecated upon a state of fact which the evidence does not conduce to prove, to-wit, that the slave in contest was loaned by JamesNeal to Cope, his son-in-law, and daughter, upon her marriage, which was 1845, whereas the proof is clear and uncontradicted that Cope did not get possession of the slave until the summer of 1847. Such an instruction was calculated, and doubtless did, mislead the jury.</p> <p>But can the statute of frauds be made to apply to a case like this, since the act of 1846, for the protection of the rights of married women? This question has not yet been decided by this court, so far as we are informed.</p> <p>What possession is it that the statute denounces as fraudulent, and calculated to deceive creditor and purchasers? Certainly the possession of one who is capable of making contracts, having creditors, and of selling his property—a married woman is not such a person. Mrs. Cope was not such a person when the sale was made to Elliott, the appellee. The possession of the slave "was held under a loan of the slave made to Mrs. Cope in 1847. It was in,her possession, not that of the husband; he had no power or legal right to dispose of it.</p> <p>2. The instruction of the court supposes that the possession of Cope, under the loan from his father-in-law, Neal, may be added to the possession of Elliott to complete the term of five years, and thereby constitute a bar to Neal’s recovery. Such is not the proper construction of the statute of frauds in regard to loans not recorded. The possession must have remained with the loanee the full term of five years before a purchaser from such loanee wdll be protected, or a creditor can subject the property to the satisfaction of the debts of the loanee. And if he then purchase, knowing of the loan, he will hold for the benefit of the lender. (See Davidson's Exor. vs. Nunnally, 3 B. Monroe, 535; Shacklet vs. Kershna, 1 Liltell 29; Eightmaster vs. Beasley, 7 J. J. Marshall, 412; Merrill vs. Lewis, 2 Dana, 162; Penny vs. Davis, 3 B. Monroe, 313.</p> <p>3. The first instruction is also erroneous, as given for appellee. The court, in that instruction, tell the jury “that if Cope and wife, and their vendees, held the ‘ uninterrupted possession of the slave for five years ‘ next before the commencement of this action, claim- ‘ ing said slave as their own during all that time, ‘ that they should find for the defendant.” This instruction is not the law of the case. We suppose the court intended to say to the jury that there was a possession, other than an adverse possession, which in five years, would confer a good title. We do not so understand the law; and there is not a shadow of testimony that ever Cope and wife claimed to hold adversely to Neal until Cope sold the negro to Elliott; then, for the first time, did Neal have any suspicion that Cope was disposed to treat the negro as his property. This instruction was therefore erroneous, and calculated to mislead the jury.</p> <p>4. Elliott’s possession was no doubt adverse from the date of his purchase, but it was not long enough to bar Neal’s recovery—not two years; and there cannot be a bar by limitation.</p> <p>The demurrer and various instructions bring up two •questions for decision.</p> <p>1st. Under the statute of limitations can the adverse possession of a sub-purchaser be added to the possession of the original possessor, to make up the five years; or, to state it otherwise, can the person sued, and last in possession, avail himself of the adverse possession of his vendor, so as to make out the five years by adding the time of his vendors possession to that of his own?</p> <p>2d. Under the statute against frauds and perjuries, •can the vendee of the loanee add his own adverse possession to the time the slave was held by the loanee, so as by adding the two together to make out the five years?</p> <p>Under the statute of limitations the question is, was there, an adverse holding for five years before suit. Under the statute of frauds, the question of whether there was a possession of five years, under an unrecorded loan. In either case the plaintiff would be barred of an action. Time is therefore material under both statutes, a.nd would begin to run, no matter under which statute the holding was, whether adverse or as a loan. Therefore, the first proposition could not have been given, for the statute of frauds would run whether the holding was adverse or under an amicable loan.</p> <p>The same error exists in the third proposition asked and refused although the statute of limitations could not run, yet the statute of frauds would, and to have given either of those instructions would have been error, because it would have assumed, that possession under an unrecorded loan for even five years, without suit, would not protect creditors and purchasers, unless it was adverse, which could not be.</p> <p>The 5th and 8th propositions asked by plaintiffs are so palpably erroneous as to require no notice. For whether the sale was conditional or unconditional from' Cope to Elliott, he (Elliott,) was equally in the place of a purchaser, and these plaintiffs would have no right to avail themselves of it; that is a question wholly between Elliott and his vendor.</p> <p>The second and tenth proposition do not embrace the exceptions in the law of limitation. “Absence” does not stop the statute when time begins to run, unless the party “removes,” “absconds,” “conceals himself,” or resorts to “artifices to delay suit,” time runs on. Temporary absence, when not a removal, &c., does not stay the statute of limitations; therefore, neither of these propositions coul.l be given.</p> <p>But there is still another objection, even the removal or absence are not made exceptions, which may be deducted in computing the time under an unrecorded loan; and this case having to be taken in both aspects, no instruction could be properly given upon the one view which would preclude the examination of the other.</p> <p>The true construction of the statute of frauds will make a possession held under an unrecorded loan for five years, without claim by suit, protect purchasers even where their purchase was before five years, if their holding under purchase added to the loanee’s holding makes the term complete.</p> <p>If the purchase was made before the expiration of the five years from the loan, then the purchaser would necessarily hold, subject to the reclamation of the bailor, until .the term of five years should be completed by the several holdings added together, and then the holding would enure to the benefit of the purchaser, and protect his title; The object is to prevent frauds. If a loanee, holding under an unrecorded loan continuously for five years, might then sell and pass good title to the purchaser, for a much stronger reason, to prevent frauds, should the bailor be required to set up his claim by suit in a case where his bailee or loanee parts with the possession before the expiration of five years. The continuous holding under the loan should, after the lapse of five years from the loan, enure to the purchaser in possession under the statute of frauds. Wherefore the seventh instruction of plaintiffs was properly refused and the second instruction of defendant given.</p> <p>The words of the statute are “where any loan of personal property is pretended to have been made to any person with whom, or those claiming under him, possession shall have remained for five years, without demand made, and pursued by due process of law on the part of the pretended lender, &c.” *'</p> <p>* “The absolute right shall be deemed to be with the possession in favor of a purchaser without notice, &c.” (Rev. St. 364,)</p>

Case 21. Qrd. PetI APPEAL FROM MERCER CIRCUIT. On the 4th of April, 1836, William G. Moore was appointed guardian to Collin T. Carter, and executed bond for the faithful discharge of his duties as guardian, with John Thorn and James Turner his sureties.

Case 22. Motion. APPEAL FROM LEWTS CIRCUIT. Case Stated. This was a motion by the plaintiff against the Sheriff of Lewis county, and his sureties, for failing to pay to the plaintiff two sums, one of $50 and another of $345, ordered by the county court at the February term, 1855, to be paid by the Sheriff to Caines out of money due the county in his hands, and for ten per cent, on said sums.

Case 23. APPEAL FROM TAYLOR CIRCUIT. The appellants complain of the decision of the circuit court giving priority of lien to Robinson & Feratid, under their attachments to which the appellants think they are entitled. 1. If the right of Lane & Bartlett to stop the goods in transitu existed it could not be defeated by the levy of attachments on the goods by other creditors. {Hause Sf Son vs. Judson, fyc., 4 Dana 8, and the authorities there cited.) 2.

Case 24. Ord. Pet. APPEAL FROM FLOYD CIRCUIT. The evidence, as certified to this court, shows no right in the appellee to the land in contest. 1. The bill of exceptions does not show that the deed copied into the record was read to the court—the law and facts having been submitted to him. 2. There is no proof showing that the deed covers the land in contest. 3.

Case 25 Pet. Eft. APPEAL FROM GARRARD CIRCUIT. I submit that the evidence establishes beyond doubt or controversy— 1. That the Church was built by voluntary donations—three-fourths of which, or more, were made by persons who had made no profession of religion. 2.

Case 26- °BD- APPEAL FROM FLEMING CIRCUIT. 1. The appellant relies, for his discharge from liability, on the note sued on upon the statute of limitations of 1838,(3 Slat.

Case 27. Pet. Eq. APPEAL FROM FLEMING CIRCUIT. 1. The first and important question presented by this record is, whether there existed any lien in behalf of the appellee for that part of the consideration which was due from Lee to Taylor, for the land which he deeded to Stockwell, as part of the price of the land which Stockwell conveyed to Lee, and which Stockwell was compelled to pay to Taylor.

<p>The circuit court has no jurisdiction to hear and decide an agreed case, under sec. 705 of the Civil Code, unless there be an affidavit filed, stating that “thd controversy is real, and the proceedings in good faith to determine the rights of the parties.”</p> <p>[The facts of the case are stated in the opinion of the court. Rep.]</p> <p>The circuit court has no jurisdiction to hear and decide an agreed case, under sec. 705 of the Civil Code, uuless there be an affidavit filed stating that ‘the controversy is real, and the. proceedings in good faith to determine the rights of the parties.”</p>

Case 29. Motion. APPEAL FROM MASON CIRCUIT. The bond which is the foundation of the judgment in this case was intended to be given under see. 713 of the Civil Code. The appellee obtained judgment for the amount of the executions, with ten per cent, damages, according to sec. 716 of the Civil Code.

Case 30. Pet. Eq. APPEAL FROM LINCOLN CIRCUIT. This suit was instituted by the appellees, as heirs at law of Sally Gentry, deceased, who was a daughter of Herbert King, deceased, for various objects, amongst others, to compel a surrender, from appellant’s testator, of two small parcels of land allotted and partitioned to two of the Kings, in the division of the forty-seven acre tract of land by a judgment of the Lincoln circuit court, and to set aside that judgment of the…

Case 31. Motion for A writ of Prohibition. APPEAL FROM TRIGG CIRCUIT. Case Stats®. George, of color, instituted a suit in the Trigg circuit court against T. W. Hammond, to recover his freedom. Hammond answered, denying George’s right to freedom, and made his answer a cross-bill against Sasseen and others, alledging that he purchased George from Sasseen, and claiming a decree against Sasseen for the price given for George in case he should establish his right to freedom.

<p>Case 32.</p> <p>APPEAL PROM NELSON COUNTY COURT.</p> <p>The principal question for the decision of the court is whether the 7th section of the IX article of the Revised Statutes, 645, has any application to this case.</p> <p>That section declares: “If a family of negroes ‘ shall be emancipated, the proceeds of the labor of ‘ all shall be united in one common fund, and applied ‘ for the removal- of all at the same time, and to the ‘ same place.”</p> <p>Whatever may have been the general doctrine as to a family, amongst slaves, it is certain that this section recognizes the relation of husband and wife and children amongst negroes who are emancipated, even before their title to freedom is fully completed under the statutes. The only reason therefore relied upon by the court below, for disregarding this humane and just provision of the law, was that the family was not emancipated by the same paper.</p> <p>The statute does not say that if a family of negroes shall be emancipated by the same instrument the proceeds of the labor of all shall be united. This judicial amendment or addition to the statute is unauthorized by the spirit and object of the law.</p> <p>This provision of the law is dictated bjr that Christian and humane sentiment which condemns the separation of husband, wife, and children. The object of the law was to unite the family, and by sending them all at the same time to the same place, secure, as far as possible, to the family, the enjoyment of that freedom which their master’s had been pleased to give them. And another motive, no doubt, was to secure the early removal of such people from this state. An inspection of this record will show that every object had in view by the legislature in passing this provision, is defeated or violated by giving to the section the construction which has been made of it by the court below. By joining the proceeds of the husband’s labor to that of the wife and children, the whole family will be removed from the state in a year from this time. If he is sent away the wife and six or seven children will be kept in the state for many years. The family will be utterly destroyed, and the kind intentions of their masters, and of the commonwealth, will be defeated.</p> <p>The difficulties that might exist, in some supposed cases, in exercising jurisdiction under different instruments. in different tribunals, is entirely obviated in this case, by the offers and agreements tendered by Elisha to the court. Moreover, the order appealed from is defective, amongst other things, in not giving a true age and description of the man Elisha. This may be to him an important right, in order to identify his right to freedom under his master’s will.</p> <p>A reversal is therefore respectfully insisted on.</p> <p>Elisha, in his petition, claims that he and his wife and children are, to all intents and purposes, one family, and that under the 7th section of the Revised Statutes, 645, “the proceeds of the labor of all shall be 1 united in one common fund, and applied for the re- ‘ moval of all at the same time, and to- thé same * place”—that is, to Liberia. 1</p> <p>It was shown by the testimony of Sami. Iiahn that Elisha’s family wrere mostly small children, and one that was frost-bitten and unproductive of hire; that it would take five or six years to raise a fund sufficient for their transportation to Liberia, unless they were aided by the hire of Elisha, and if his hire should be applied with theirs, for the one common object, the removal to Liberia could be accomplished in a much shorter time.</p> <p>The court, however, adjudged that Elisha should be immediately removed’from the state of Kentucky, and he has appealed to this court from the judgment.</p> <p>There is no precedent h}1- which this case can be determined. The 7th section of the Revised Statutes, 645, is the clause of law by which it is to be settled. Elisha, his wife, and children—are they or not one family? Hahn says in his testimony that they are one family, so far as husband, wife, and children can .constitute one family among negroes. Surely this fills the requisition of the law. And indeed it would seem inhumane to give any other construction to this statute, in this case, for it would be separating forever persons who in fact do constitute one family, and who bear towards each other by nature those tender relations which belong only to a family and which nob only moral law but statute law ought to respect and hold sacred.</p> <p>It is hoped that an ear of clemency will be given in this case and the prayer of the humble petitioner, husband, and father may not have been made in vain.</p>

Case 33. Pbt.Ec» APPEAL FROM PENDLETON CIRCUIT. The object of the plaintiffs’ petition was to obtain a specific execution of the contract by which the parties had agreed on a division line between land. Is not this the appropriate remedy? What is the object of applying to a court of equity for the specific execution of a contract? It is that the rights of all the parties may be fully adjusted and settled, according to their contract and the principles of equity.

Case 34. Pet. Eft. APPEAL FROM LOUISVILLE CHANCERY COURT. Argued—1. That the writing relied on by Adam as a deed of emancipation was ineffectual for that purpose, as it had not been proved' or acknowledged in the county court in conformity to the statute. (Rev. Stat. chap. 93, art. 9, sec. l,page-Q43.) The act of the legislature provides, “ that slaves ‘ may be emancipated by the owners in- the follow- ‘ ing manner, and upon the following conditions, and 4 not otherwise: 1.

Case 35. Ord, Pet APPEAL FROM FAYETTE CIRCUIT This case presents to the consideration of the court three questions: Is the action maintainable? Have state courts, including the Lexington city court, authority to naturalize foreigners? And can a naturalized citizen, with other qualifications complete, vote immediately after he is admitted to citizenship?

<p>Case 36.</p> <p>APPEAL FROM BRACKEN COUNTY COURT.</p> <p>Case Stated.</p> <p>David A. Weaver, sheriff of Bracken county, on 6th October, 1856, had a partial settlement of his accounts with the county before commissioners. It was found that the sheriff held in his hands, collected and to be collected as levy and taxes, the sum of $3,838 67. The sheriff and his deputies continued to collect and paid over to county creditors in small sums $623 88; and claims to have paid to David Brooks, the county treasurer, under an order of the county .court, the further sum of $1,800, evidenced by a receipt dated 27th October, 1856, and the like sum of $1,800, evidenced by a like receipt, dated 2d January, 1857—the former to be applied to the extinguishment of the claim now sued for, and the remainder to be applied to the indebtedness of the sheriff for the year 1855, making in all the sum of $4,223 88. A controversy arose between the treasurer, Brooks, and the sheriff, Weaver, as to genuineness of the last receipt for $1,800. Brooks, upon notice to Weaver, moved the court for judgment against Weaver and his sureties for the balance in his hands due to the county. On the trial of this motion Brooks vuas offered as a witness, and though his competency was objected to, he was permitted to testify on behalf of the county, and upon that trial testified that he never had received the $1,800 which was specified in receipt dated 2d Jannary, 1857, but that, at the date of that receipt he received only $800, and no more. The court rendered judgment against Weaver and his sureties for $1,180 80, as the balance in the sheriff’s hands *due the county, and they have appealed to this court.</p> <p>1. The witness, Brooks, was incompetent; he was the county treasurer, whose duty it was to receive the money from the sheriff, and who was bound to account for it as the county court might order; and his receipt to the sheriff is a discharge to the sheriff, and he should not be permitted to testify in such a case; he is interested in exonerating himself from responsibility, and placing it upon the sheriff and his sureties.</p> <p>Brooks also shows his feelings by employing counsel to prosecute the motion, and introduces himself as a witness in his own behalf, (the county being only the nominal plaintiff,) he being the real party interested. The rule in regard to competency is this: “If the witness can derive no benefit from the cause ! before the court he is competent, otherwise he is ‘ incompetent.” (Phillips Ev. 6th American from 9th London Ed. vol. 1, chap. 5, sec. 4, 82, 3, top', 1 Green-leaf, 496; 1 Starkie, 105, 111. 114.) As to the admissibility of the real party in interest, when the plaintiff is a nominal party merely, see 1 Phillips, 82, and 86-7. If a judgment in favor of the party calling the witness will prove a direct benefit to the witness he is incompetent, (1 Greenleaf, 504;) or if the interest of the witness merely preponderates in favor of the party calling him, he is incompetent. (Mosely vs. Armstrong, 5 Monroe, 288.) “Witnesses are in- * competent whenever they are liable to suit by the ‘party calling them.” (Phillips Ev. 1 vol. chap. 6,sec. 4, 101.) They are incompetent to prove their own laches or misconduct. In note 96 to part 1, 3c? book of notes on Phillips Ev. the author says, although the verdict may not affect the witness in another suit, yet, when it may create a new responsibility which the law would recognize and render available in favor or against the witness, or increase or decrease an existing one, he ought to be rejected. The same doctrine is recognized in Hilhouse vs. Smith, 5 Day, 432; Fuller vs. Wheeler, 10 Pick. 135. In this last case the witness, offered was the acknowdedged agent of the plaintiff and was rejected until he was released.</p> <p>The case cannot be brought in the common rule of admitting agents which is an exception to the general rule. Pie is not shown to be within the exception. The facts he was called to prove were out of the usual course of business. If Brooks had a right to receive the money the sheriff could never recover it back from him.</p> <p>Receipts may be explained but it must be by competent evidence.</p> <p>2. The county court has no right to settle with the sheriff. (Revised Statutes, 213.) It is there said “that ‘ the county court shall appoint some competentper- ‘ sons as commissioners to settle with the sheriff, and ‘ upon his report, and its approval, shall make such ‘ order concerning the remainder of the money, if any ‘ is due the county, as may be deemed necessary for ‘ its safe keeping, &c.”</p> <p>Made the following points: 1. That there is a difference to be observed in respect to the competency of an agent in cases where the principal is plaintiff and where he is defendant. If the principal is plaintiff the agent is generally a competent witness. If, however, the principal is defendant, and the agent is liable over to the principal, the agent is not competent without a release. In the latter case, especially if the agent is duly notified of the suit, the record is generally conclusive against the agent in a suit by principal against the agent for indemnity.</p> <p>It will be readily perceived by this court that in cases also where the principal is plaintiff, the agent may, by his acts in regard to the suit, place himself in the same condition in regard to the force and effect of the judgment in a future suit between the plaintiff and himself as if his principal; was defendant. We contend that this has been done by'Brooks in this case. It appears from his own acknowledgment that he recognized his interest in the case, and that he has, for his own individual interest, employed counsel to represent him in the case, and that the management of the case has been accorded to him, and that the case has been conducted-for his protection, as if it was a case between himself.'and the sheriff. Under such a state of case the record of the suit would have been evidence against Brooks in a suit by the county against him for the money now sought to be recovered of Weaver and his sureties. Brooks is not, however, the mere agent of the county, he is an officer of the county, regularly appointed, and entitled to hold his office for two years. He was not only authorized to receive the money from the sheriff, but was the only person who could receive it. There was no principal to whom it could be paid, and therefore he stood as principal, with power to authorize others to receive it as his agent.</p> <p>The whole contest in this case was whether Brooks* receipt had been altered from eight to eighteen hundred dollars^ The final mode for the county to pursue, would seem to be a suit against both her officers, compelling them to litigate between them which of the two owed the county the disputed $1,000. It is true the county could sue either, but whichever might be sued, the real controversy is between the county treasurer and the sheriff, and they are the real parties to the issue. Brooks was interested in the result of the controversy, and the record would be evidence against him.</p> <p>It is manifest that without Brooks’ evidence the judgment should have been for the defendant. The original receipt is on file, and if the receipt has been changed, as is contended, it has been done with a skill that defies detection.</p> <p>But there is an additional circumstance about the receipt that strongly fortifies its genuineness, and which is not explained. A judgment had been rendered -against the sheriff for the county levy of 1855, and the collection of that judgment was in the hands of Robertson, the coroner. If only $800 was paid, on the 2d January, 1857, as Brooks contends, then there was-no reason for applying any part of it to the levy of 1855, as more than that amount was due of the levy of 1856, for which no judgment had been rendered. But if $1,800 was paid, it was more than was due for the levy of 1856, and if the receipt had confined it as a payment to the levy of 1856, it would have afforded a strong presumption that the receipt had in fact been changed. The fact that it was a payment on both the levies of 1855 and 1856, creates a strong presumption of the genuineness of the receipt as it appears. It is argued that “1855” was also fraudulently inserted, and that as originally written it was confined to the year 1856. Then the judgment is evidently erroneous, as part of that sum has been, by the effect of the judgment, appropriated to the levy of 1855, and Brooks-says that a sufficiency was applied to extinguish the balance of the levy of that year. The other receipts confine the payments to the levy of 1856. It must therefore be assumed that 1855 was in the receipt when signed, and that fact has been recognized by Brooks, and acted upon in his application of the credits.</p> <p>The appellants seek a reversal of this case upon the ground that David Brooks was admitted as a witness, who, it is charged, is interested, and therefore incompetent. It is insisted, upon the part of the appellees, that he was competent, and his testimony properly admitted. Should the court agree with me that Brooks is competent, that settles the question. Was he competent? Brooks was the agent of the county, acting under the order of the county court in receiving and disbursing the money directed to be received from the sheriff, 'and to be paid out to the creditors under said order. In a c.ontest between the county and the sheriff, was Brooks competent to prove the amount paid by the sheriff to him for the county? If he was the servant, agent, or factor, he was competent, as this court has decided in the case of Bonham vs. Lair, 4 B. Monroe, 405, and also in New York, 2 Johnson, Burlingham vs. Dwyer, 190. In this case an order was given for white lead, and upon the back of the order a receipt for the quantity and price was given by the bearer of the order. In a suit for the white lead, it was denied that the quantity had been received', to prove which the witness who executed the receipt was offered to prove that there was a less quantity than he receipted' for, and to explain the receipt. The court decide that he was but an agent, and was competent—leaving- his credit with the jury. The competency of agents in Phillips' Evidence, under the head exceptions to the-rule, it is fully recognised that agents, from necessity, are competent. The general principle upon which agents are permitted to testify, will be found fully argued and settled in 5th Johnson, Stewart vs. Kip, 257. Should David Brooks be regarded as an officer of the county, then the Code,sec. 675,page 183, provides that all officers of a city, county, or town4 shall be-competent.</p> <p>This controversy grows out of a receipt for $1,800; which Brooks says is a forgery; he admits that he executed the receipt for $800,' but that it has been altered to $1,800. Could the appellants get along with the receipt except by introducing Brooks to prove it; he was in the county; could be used by them; certainly the hand writing of a party to. a receipt cannot be proved by any one save the party himself, when he is no party to-the suit. The county, by the tax books and settlement, showed the sum that Weaver was indebted to the county, and when the receipts were offered it is respectfully insisted they could only be proved by Brooks, and that without his testimony the judgment would have been against them for a larger sum.</p>

Case 37. Ord. Pet. APPEAL FROM ÑELSOÍT CIRCUIT. Upon this record the counsel for appellants submits the following consideration, showing error to the prejudice of plaintiff: The matters set up in the counter-claim do riot show a cause of action against plaintiff, and a valid counter-claim against plaintiff, and the court erred in not sustaining the demurrer.

Case 38. Pet. Ed. APPEAL FROM FAYETTE CIRCUIT. Held: (especially in the hands of an innocent bona fide purchaser,) that the bill of exchange drawn by such principal on such agent is.a legitimate business transaction, being the drawing on those funds received or to be received.

Case 39. Ord. Pet. APPEAR FROM MONTGOMERY CIRCUiT. 1. The circuit judge should have sustained the exceptions to the depositions of the Porters. The Code, when properly understood, does not, either in letter or spirit, sustain the court.

<p>1. The 28th section of the chapter of the Revised Statutes on “Turnpike and Plank Roads,” pape 6*7, in regard to roads running laterally with a turnpike or plank road, applies as well to roads opened before the passage of the statute as to those subsequently opened. The act of 1*42, (3 Stat. Law, 567,) has a.provision in substance the same as the Revised Statutes. (See MSS. opinion, Black vs. Germantown and Hamilton Turnpike Road Company, summer term, 1854.)</p> <p>2. The act of the Legislature requiring the closing of roads running laterally with turnpike or plank roads, unless within one mile of a town, is imperative, and the county court is bound to order such roads to be closed, whatever may be the inconvenience to the citi zens.</p> <p>[The facts of the case appear in the opinion of the court. Rep.]</p> <p>S. The 2Pth sec. of the chapter of Rev Statutes on “Turnpike and Plank Roads.” p.687, in regard to roads running laterally with a turnpike or pl’k road, applies as well to roads opened before the passage of the statute an to those subsequently opened. The act of 1842, (3 Statute Law, 567,) has a provision in substance the same as the Rev.Stat. (See MSS.opinion. Black vs. Germantown 4" Hamilton T. P. R. Co summer term, 1854.)</p> <p>2. The act of the , legislature requiring the closing of roads running laterally with turnpike or plank roads, unless within 1 mile of a town, is imperative, and the county court is bound to order such roads to be closed, whatever may be the inconvenience to the citizens.</p>

Case 41. Pet. Ed. APPEAL FROM KENTON CIRCUIT. This case having been before this court and decided on the 13th March, 1856, Nixon, the appellee produced the mandate of this court, and filed[ it, and it was-entered of record. McLean, the appellant, produced an affidavit, and that of J. P. Jack and B. M. Bush, and moved the court to continue the cause, and give him an opportunity to take further proof in. the case.

Case 42. Oitfl. Pbt. APPEAL FROM JEFFERSON CIRCUIT. 1. The decision of this court, in the case of Love vs. Harris, is relied on as showing that betting on elections does not come within the provisions of the bih sec. of the Statute on Gamins, Revised Statutes, page 368. It was either a bet or not a bet; if it was a bet Gwinn has received the stakes, and the right of action to recover it is in the commonwealth, and not in Stilwell. 2.

Case 43„ Pet. Ess APPEAL FROM CALDWELL CIRCUIT. 1. Several of the appellants and appellees also are infants, and the petition is brought for the sale of certain land and slaves of which the ancestor, James Mansfield, died possessed, without having made any will. No attorney was appointed for the non-resident infants or warning order taken. A part .of the non-residents appeared and answered; a part did not.

Case 44. Pet. Eq. APPEAL FROM LYON CIRCUIT. The appellant seeks a reversal of the judgment of the circuit court, in this cause, upon one point alone. The defendant relies upon the statute of champerty, which the appellant conceives does not apply in the ease. The statute of champerty applies only to the sale of lands held in adverse possession, by another person, a t the time of the sale.

<p>1. The right of a witness residing out of the county where he is to give testimony to have a tender or payment of his traveling expenses in going to and returning from the place where he is summoned to give testimony is not taken away by the Revised Statutes, and he still h .s the right to demand it, and is not guilty of a contempt in disobeying a summons until the law is complied with.</p> <p>2. A party is not entitled to a continuance of a suit on account of the absence of witnesses residing out of the county, unless he hascither mude the requisite payment or tender of the expenses of the witnesses summoned, uniese such payment was waived by the wit- „„„„ ness.</p> <p>3. In slander, that which amounts to justification cannot be given in evidence under the plea of not guilty. {Litt. Sel. Ca. 15t'; 1 B. Monroe, 1711) Bur, matter which falla short of justification may be proved in mitigation of damages. {Hart vs. Reed, i B. Mon. 170.)</p> <p>4. Evidence impeaching the credibility of a witness must be cot.fined to proof of general character for tiuth.and general moral chaiacter—whether worthy ot credit on oath; and it is not proper to speak of particular facts. {Greenleaf on Eo 599; 3 Marshall, Í6I.) Particular facts cannot be proved by general rumor.</p> <p>5. When the party on cross-examination inquires into particular (acts, the other party may pursue the inquiry; but the party introducing a witness to impeach the character of the witness of his adversary has no right, on the examination in chief, to inquire into particular facts or general reputation as to such facts.</p> <p>S. TJte riglifc of B witness residing our. of the county where he is to give testi uotiy to have a tender or paymeutofhU traveling expenses in going to and returning from the place where lie is summoned to give tesliino cy is not takon away by the Revised Statutes, and he still has the right to demand it. and is not guilty of a contempt in disobeying a summons until the law is complied with.</p> <p>2. A party is not entitled to a continuance of a suit on account of tlie absence of witnesses residing out of the county, unless lie has either made the requisite payment or tender of the expenses of the witnesses summoned, unless such payment was waived by the witness.</p> <p>3. In slander, that which amounts to justification ran not be given in evidence under the plea of not guilty. (Lilt sel. at. 15(1; l B. Mon. 170 ) But matter which falls short of justification may be proved in mitigation of damages. (Hart vs. Heed, 1 B. Mon I7U)</p> <p>4. Evidence impeaching the eredibility of iv Witness must be ébnfin’d to proof »i general char ncter for truth, and general moral character— whether worthy Of credit on oath; and it is Sot proper to jpeakof parti cu jar facts Green ieaf on Eo 5 -9; A Marshall, dhl Particular facts cannot be prov *d by general rumor.</p> <p>5. Where the party on cross examination in quires into particular facts.the other party may pursue the in quiry; but the party introduc ing a witness to impeach the character of the witness of his adversary has no right, on the examination in chief, to inquire into particular facts or general reputation as to such facts.</p>

_ „„ Case 46. Oxd. Pet. APPEAL FROM T.YON CIRCUIT. I shall contend that the judgment is erroneous, and should be reversed for the following reasons: 1.

Cas® 47• Pira. Eat. APPEAL FROM LOUISVILLE CH INCERV COURT. I will not weary the court with long discussion, or an extended reference to authorities, as it has been made by Mr. Fry. The petition charges “ no one is left in charge of the powder house.” Defendants deny this, and say they have a trusty man in their employment whose sole business it is to attend to it, and the carrying powder to and from it; but they have riot caused any one to remain continually near it.

Case 48. Pet. Ee. APPEAL FROM LOUISVILLE CHANCERY COURT. This petition was filed by White and others to vacate and set aside a deed of trust made by Monsarrat to Mitchell and Harrison, for the payment of the debts of Monsarrat, on the ground that there was fraud in fact in making the assignment. The defendants answered, only one of them swearing to the answer, to-wit: Harrison.

Case 49. PBT. Efl APPEAL FROM UNION CIRCUIT. The demurrer to the petition should have been sustained—it was not in any manner disposed of by the court. This was error. The lodging of the answer with the clerk was not a waiver of the demurrer. {Civil Code, sec. 124.) The death of one of the contracting parties does not in general release his representatives from the performance of his part of the contract, and if the personal representative can perform it he is bound to do so.

Case 50. Ord. Pet. APPEALS PROM HENDERSON C UIRCUIT. 1. This case depends upon the construction of the \bbthsec. of the Code of Practice; that section provides “ that if either party shall rel'y upon any deed or oth- ‘ er writing, he shall file with his pleading the ori- ‘ ginal deed or writing, if in his power.” This section has application only to cases founded upon “ a deed or writing;” that is, where the cause of action arises out of a violation of the stipulations of a…

Case 51. Ord Pet APPJ3AL FROM CHRISTIAN CIRCUIT. The counsel for appellees suggest that the judgment or order of the Christian circuit court, remanding this suit to the Logan circuit court, is not such a final judgment as will, under the statute, authorize an appeal, and for this cause the appeal should be dismissed. The Christian circuit court acted correct, and in accordance with the statutes.

Case 52. APPEAL FROM OHIO CIRCUIT. Hodges, in May, 1852, leased of Shields a tract of land for a term of years; he afterwards ascertained that Shields had no title whatever to the land, and brought this suit, praying that the contract of lease be rescinded—having in the meantime purchased the land of Thompson, the real owner.

Case 53. Pet. E«- APPEAL FROM ANDERSON- CIRCUIT. Case States. On the 19th April, 1853; J. C Buckley sold-a tract of land to S. H. Buckley, and gave him a title bond to convey the same. On the 17th of August, 1853, S. H. Buckley assigned said bond to James W. Yount, and on the 12th February, 1855, Yount assigned thp bond to R. D. Collins.

Case 54. APPEAL FROM JEFFERSON CIRCUIT. Made the following points: 1. The mandamus should have issued against the corporation and not against the individual members thereof, at the time it issued. 2. The county court or the city corporation is not bound to issue a tavern license to every applicant. They have a discretion—a sound legal discretion; and there is no allegation of any abuse of that discretion in the application for the mandamus. 3.

Case 55. Mandamus. APPEAL FROM ANDERSON CIRCUIT. All the pleadings are withdrawn except the petition and the demurrer thereto by agreement, with leave to give in evidence such matter as could be pleaded. The circuit court after hearing the evidence, awarded a peremptory mandamus to the county court, to which the county court excepted, and prayed an appeal. 1. Did. the circuit court err in overruling the demurrer. The appellees say that the court did err.

Case 56; Pet. Eft.. APPEALS PROM ANDERSON CIRCUIT. Argued—1. That upon the death of Andrew J. Holeman, in 1850, his moiety of the land devised to him by his father, passed in equal portions to his mother and surviving brother, under the statute of 1796; and that act does not exclude the mother because the deceased son obtained the estate by devise from his father—so ruled in Dunn vs. Lafferty, (6 J. J. Marshall, 47.) 2.

CaBe 57- IpBTT. E«. APPEAL FROM FAYETTE CIRCUIT. Made the following points in this case: 1.