Volume 58 — Kentucky Reports

<p>1. The offense of “ feloniously obtaining money by false pretenses” consists in obtaining the money, with a fraudulent intent; the false pretense employed is only the means by which the offense is perpetrated. Therefore, where V. sold and delivered to J. a negro man, in the state of Ohio, representing him to be a slave, and received the purchase money and executed the bill of sale in Kentucky, and the negro turned out to be a free man, the court in Kentucky had jurisdiction to try V. for the offense of feloniously obtaining money by false pretenses, as the offense of so obtaining the money was committed in Kentucky. (People vs. Adams, 3 Denio’s N. Y. Reports, 190; affirmed upon an appeal in 1 ComstocJc, 173.)</p> <p>2. It is the duty and right of the court to instruct the jury, in criminal cases, as to the law of the case, and it is the duty of the jury to regard such instructions as containing the law; but if they disregard them and acquit the accused, the court could not, for that reason, grant a new trial. Thus far juries have the ultimate decision of the law as well as the facts. (Montee vs. Commonwealth, 3 J. J. Marshall, 132.)</p> <p>3. Juries, in criminal cases, must derive a knowledge of the facts from the witnesses, and of the law from the court; they, however, have to pass upon both, and, by making an application of the law to the facts, decide whether the offense charged has been committed. In this sense only are juries judges of the law. (Seltinius vs. United States, 5 Cranch’s Circuit Court Reports.)</p> <p>4. The Criminal Code (section 226) requires the court, on motion of either party, to instruct the jury on the law applicable to the case, in criminal trials; and section 233 expressly provides, “that all questions of law arising during the trial shall be decided by the court, and the jury shall be bound to take the decisions of the court oa points of law as the law of the case.” This part of the Code is not regarded as inconsistent with the provisions of the constitution, but as containing the law applicable to the question of how far juries shall regard the instructions of the court in such cases.</p>

<p>CASE 2 —INDICTMENT</p> <p>APPEAL FROM MARSHALL EQUITY AND CRIMINAL COURT.</p> <p>Tbe indictment against the appellant was found at the May term, 1856, of the Marshall circuit court. That court, at its November term, 1856, made the following- order: “Ordered, That this case be transferred to the equity and criminal court.”</p> <p>The following are the instructions copied .into the record, and marked given:</p> <p>. “ The court instruct the j ury, that if they believe, from the evidence, that the accused feloniously took and carried away the hog, with the intention of converting it to his own use, as charged in the indictment, and that the hog was the property of R. Winfrey, and of the value of four dollars or upwards, the law is for the Commonwealth, and the jury must so find, and say how long he shall be confined in the penitentiary oí this state, in a period of not less than two nor more than four years.”</p> <p>“ That if the jury have a reasonable doubt, growing out of the evidence, of the accused being proven to be guilty, they must acquit him.”</p> <p>“That if the jury believe, from the evidence, that Tipper took the hog under a claim of right, or through mistake, with no felonious intent, believing at the time the hog was his property, the law is for the accused, and the jury must acquit him.”</p> <p>1. The case was not legally before the equity and criminal court, so as to give that court jurisdiction. (Civil Code, sections 10, 709, 770, 775, 776.) See, also, act establishing the equity and criminal court, (Session Acts, 1855-6, vol. 1 ,p. 39.)</p> <p>2. The court erred in refusing to allow the statement of the accused, while the hog was in his pen, as to how he got and why he held possession of it, to be given in evidence. (Green-leaf’s Evidence, second edition, vol. 1, sections 108, 109, 110, 111, and notes and authorities there referred to.)</p> <p>3. The instructions of the court were misleading. They are so worded that the jury might easily fail to see the application of the rational doubt to the question of good faith in the taking of the hog; and, moreover, are in language which would cause the jury to weigh the evidence as in a civil suit.</p> <p>4. The verdict of the jury was unauthorized by the evidence, and the court, for that reason, should have granted a new trial.</p> <p>1. The rejection of evidence tending in any degree to aid the jury in determining a material fact, is error. (Coleman vs. Allen, 3 J. J. Marshall, 229; Graham and Waterman on New Trials, vol. 2,pp. 665, 667.)</p> <p>2. Possession is an act, and the declarations of a man made during the time of his holding the possession of property form a part of the res gestee, and are admissible in evidence as well in his behalf as against him. (13 United States Digest, 1853, pp. 305 and 306; Fontaine vs. Beers, 19 Alabama Reports, 722; Nelson vs. Iverson, lb., 95 ; Clealand vs. Huey, 18 lb., 343 ; Mob-ley vs. Bilberry, 17 lb., 428; Perry vs. Graham, 18 lb., 822; Haddon vs. Powell, 17 lb., 314; Nelson vs. Iverson, 17 lb., 216. Also, 15 United States Digest,p. 251; St.. Clair vs. Shale, 20 Pa. Reports, 105; Nelson vs. Iverson, 24 Alabama Reports, 9; 8 United States Digest, p. 168; Avery vs. Clemons, 18 Conn. ' Reports, 306; 4 United States Digest, 706; Oden vs. Stubblefield, 4 Alabama Reports, 40; Thompson vs. Stewart, 5 Littell, 5; West vs. Price’s heirs, 2 /. J. Marshall, 384; May, &c., vs. Jones, &c., 4 Littell, 24; Shackelford vs. Smith, &c., 5 Dana, 240; Smith vs. Morrow, 7 Monroe, 336; 1 Grcenleaf’s Evidence, sixth edition, section 109, note 4, and authorities there cited.)</p> <p>1. By the act of the legislature establishing the equity aná criminal court of the first judicial district, (Session Acts, 1855— ’56,) that court was vested with exclusive jurisdiction of all criminal business cognizable in the circuit court; and it was the duty of the circuit judge, under that statute, to have transferred, upon his own motion, all criminal business to the equity and criminal court. If the transfer was irregular, no ground for reversal exists, (1) because no exception was taken to the transfer, and (2) the irregularity complained of is not a ground of reversal in cases of felony. (Criminal Code, section 334.)</p> <p>2. As the bill of exceptions does not show what instructions were given, or that any were given in the case, the court cannot regard them. (Criminal Code, section 335.)- If the instructions were improper, they should have been excepted to, and the exception spread upon the record. (Criminal Code, sections 275-6-7; Civil Code, sections 363 — 367, inclusive.) But the instructions, copied into the record, present the law of the case.</p> <p>3. This court cannot reverse a judgment in a case of felony upon the ground that the verdict of the jury is against the evidence. (Criminal Code, section 334.)</p> <p>4. Declarations made by the defendant at the time of taking the property may be proven by him, as part of the res gestee; but the law will not allow him to prove his own declarations made after the taking, in reference to the claim by which he held it. The Commonwealth could prove such declarations, but not the defendant.</p>

<p>1. An indictment for murder contained three paragraphs. The jftrsi charged that the murder was committed by five defendants jointly; the second, that H. committed the murder, and that the other defendants “ did, with malice aforethought, counsel, advise, and persuade the said H. to kill and murder ” the deceased; the third, that T. committed the murder, and that the other defendants in like manner counseled and advised the commission of the act. Held — That there is no misjoinder of offenses; that but one offense is set forth in the indictment, though charged to have been committed in different modes. (Criminal Code, section 125.) That although the particular agency of each defendant is unnecessarily stated, it does not vitiate the indictment.</p> <p>2. To make a party principal in a murder, it is not necessary that he should inflict the mortal wound; it is sufficient if he be present, aiding and abetting the act, or if he advise and counsel the commission of it. ( Wharton’s Criminal Law, 431.)</p> <p>3. H., D., S., Z., and T., were jointly indicted for murder, and a separate trial awarded to T. Upon the trial of T. he offered to prove an alibi by the wives of H. and S. Held — That they were competent witnesses. The court, after reviewing the authorities upon the question, say: “ The mere fact that the husband is a party to the record, does not of itself exclude the wife as a witness on behalf of other parties, but the rule of exclusion is only to be applied to cases in which the interest of the husband is to be affected by the testimony of the wife.” (Greenleaf’s Evidence, section 335; Wharton’s Criminal Law, p. 359; 1 McCord, 286; 2 Ashmead, 31; 1 Massachusetts Reports, 15.)</p> <p>4. No act or declaration of one of several defendants jointly indicted for murder, made or committed subsequently to the commission of the offense charged, is competent evidence against the other defendants.</p>

<p>CASE 4 — PETITION EQUITY</p> <p>AÍPEAE FROM MADISON CIRCUIT COURT.</p> <p>The facts are sufficiently stated in the opinion of the court.</p> <p>1. The depositions upon which the appellees obtained a decree, were taken without notice, and before a guardian was appointed for the appellant, George Webber.</p> <p>2. The action did not stand for trial at the term in which the judgment was rendered, because there was an issue of fact made up by the pleadings — there was no consent that the answer should be taken as true — nor could the pleadings have been made up ninety days before the commencement of the term. (Civil Code, sections 393 and 395.)</p> <p>3. The service of the summons as to the infant defendant, George Webber, was insufficient. (Civil Code, section 81; Lloyd vs. McCauley, 14 B. Monroe, 543.) It does not appear that he was over fourteen years of age, nor that he had no guardian, and that the widow upon whom the process was served was his mother. This the appellees should have shown upon the record.</p> <p>Caperton, for appellees—</p>

<p>1. In a petition against a personal representative it is not necessary to allege that the debt sued for was demanded of him before the commencement of the action as required by the Civil Code, (section 473,) accompanied with the affidavit required by the Revised Statutes, (article 2, chapter 37, sections 35-36.) But where no such demand, with the required affidavit, was in fact made, the defendant is entitled to a rule against the plaintiff to dismiss his petition. (15 Ben. Monroe, 178.)</p> <p>2. The requisition of the Civil Code, (section 473,) that no suit shall be brought against a personal representative until after a demand made of him, accompanied with the affidavit required by the Revised Statutes, (article 2, chapter 37, sections 35-36,) is imperative; and the omission cannot be cured by a subsequent compliance in these respects, set up and alleged in an amended petition. The petition should be dismissed without prejudice upon a rule for that purpose.</p> <p>3. Where a personal representative appears and answers, without alleging the omission of the plaintiff to make the demand of the debt sued for, required by the Civil Code, (section 473,) it may be an implied admission that such demand was made. But where he is sued jointly with another, who answers and fails to make such objection, the personal representative is not deprived thereby of his right to have a rule against the plaintiff to have the petition dismissed as to him.</p> <p>•4. Where a personal representative is sued jointly with his sureties, and he obtains a rule against the plaintiff to dismiss his petition .for a failure to make the demand ¡required by the Civil Code, (section 473,) and it appears that such demand was not made, it is proper to dismiss the petition as t® the personal representative, and allow the plaintiff to proceed against the sureties.</p> <p>The requisitions of section 473, Civil Code, do not apply to the sureties pf a personal representative; and the plaintiff by section 39, (ib.,) has the option to bring his action against all or any of the defendants. But the sureties have the right to interrogate the plaintiff in relation to all the matters about which he is required to speak in his ■•affidavit.</p>

<p>CASE 6 — PETITION ORDINARY</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>The facts are stated in the opinion of the court.</p> <p>1. Infancy is a personal privilege, which can only be taken advantage of by the infant himself, or by his representative. (Cannon vs. Alsbury, 1 Mar., 77 ; Beeler's heirs vs. Bullitt's heirs, 3 Mar., 281.) The defendant could not rely upon the infancy of the plaintiff, and the court erred in its peremptory instruction to that effect.</p> <p>2.An infant cannot bind himself, by contract, to pay a penalty or incur a forfeiture. (Parsons on Contracts, 243.)</p> <p>1. The appellant is an infant, and no reason is shown for suing in his name.</p> <p>2. Appellant’s father is entitled to the surplus money paid, if any one is.</p> <p>3. Be this as it may, appellant had no right to sue until he was refused the tuition and boarding his money was paid for. By his contract, if he chose to leave without permission of the faculty, he was not to reclaim the tuition fees.</p> <p>4. The first account having been settled, and there being no dispute over but $25 of the $50, this court has no jurisdiction to revise the case.</p>

CASE 7 — PETITION EQUITY APPEAL FIIOM MADISON CIRCUIT COURT. The facts of the case appear in the opinion of the court. 1. The legal title to the negro woman and her children passed from Francis to Ballard, the husband, by the bill of sale of September, 1850.

CASE 8 — DETINUE APPEAL FROM SIMPSON CIRCUIT COURT. The facts of the case are stated in the opinion of the court. 1. After the executor of Clark was qualified, the order for the further prosecution of the action in his name was regular and proper. (Civil Code, sections 559-909.) 2.

CASE 9 — PETITION ORDINARY A1TEAL FROM WOODFORD CIRCUIT COURT. The facts of the case are stated in the opinion of the court. Argued, that the affidavit is sufficient, and cited Civil Code, sections 146 and 874. Argued, that the affidavit is sufficient, citing Civil Code, section 874; Rev. Stat.,p. 190, sections 15,16, and, 17. Argued, that the affidavit is insufficient, and cited Story's Eq. Pleading, sections 24, 28, 241, and 256; Monroe vs. Cutter, 9 Dana, 96.

<p>1. The jurisdiction of the police judge of Frankfort is conferred and defined — by the acts of February J6, 1839, section 21, and that of February 7, 1844, section 1— to be that of a justice of the peace at that time. He has, therefore, jurisdiction of all demands arising upon contract not exceeding fifty dollars, exclusive of interest and. cost.</p> <p>2. The jurisdiction of the police judge of Frankfort, as defined by the acts of 1839 and 1844, has not been changed by any subsequent enactment of the legislature.</p> <p>3. Tlio 767th section of the Civil Code was not intended to fix or regulate the jurisdiction of the courts to which it refers; but that a court having a similar jurisdiction in whole or in part with justices’ courts, shall be considered a justice’s court so far as the mode of proceeding therein is concerned..</p>

<p>The authentication of the copy of the will of a non-resident, offered for probate in this state, must be such authentication as would make the copy admissible as evidence in the courts of this state by the provisions of the Revised Statutes, chapter 35, section 18, p. 313, before it can be valid for the purposes described in Revised Statutes, chapter 106, section 31, p. 698.</p>

<p>CASE 12 — PETITION EQUITY</p> <p>APPEAL FROM SCOTT CIRCUIT COURT.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Argued: 1. That the settlements made by the administrators of Elias Thomason, of his accounts as administrator of Stephen Thomason, were unauthorized by the act of 1834, and not prima facie evidence against appellants.</p> <p>2. That the judgment of the circuit court is not for as large a sum as appellants are entitled to; discussing at length several items of the account, and citing 2 Bibb, 188; 3 Bibb, 448; 5 Dana, 97.</p> <p>Argued: 1. That the county court had jurisdiction to make the settlements, and they must be regarded as prima facie correct.</p> <p>2. That the judgment is for too great a sum, and should be . reversed, upon the cross appeal, at the costs of appellants.</p>

<p>CASE 13 — PETITION ORDINARY</p> <p>ArrEAL FROM SHELBY CIRCUIT COURT.</p> <p>This suit was brought by the appellees against appellants to recover the last installment of stock to the turnpike company subscribed by the chairman of the board of trustees, under their order, upon the books of the company. A demurrer to the petition having been overruled, and demurrers to the answer and amended answer sustained, judgment was rendered against appellants for $250, tbe amount of said installment, from which • they have appealed.</p> <p>The chairman is not the general agent of the board of trustees, but acted under special authority, which was not pursued. A general agent acting under written instructions must conform to them.</p> <p>The trustees had no authority to make the subscription under the act of incorporation. If made under a special act, it should be pleaded and averred that the act was complied with.</p> <p>The trustees had not power to make the subscription. Their chairman is not their general agent, but was their special agent in making the subscription, and exceeded his authority, and therefore his act did not bind the trustees. (1 Parsons, 39, 51, 52, 96, 41, 49, note ee; 2 Kent, 620, 621; 5 J. J. Marshall, 267; 4 Mon., 41; 6 Mon., 575.) Where a general agent has written instructions, known to the party dealing with him, the instructions must be strictly followed, (1 Parsons, 51, 52, 96.) The order of the board of trustees was known to the appellees to be on the records of the trustees, and it was their duty to have known its terms.</p> <p>It was not necessary to aver that the board of trustees, had authority to make the subscription, (Higdon’s heirs vs. Higdon’s dev., 6 J. J. Mar., 51.) The paper sued on is of itself presumptive evidence of such authority, and that it is not is matter of defense, {Stephens’ Pleading.) The board authorized the subscription to be made, which is prima facie evidence of their authority. {Bank U. S. vs. Dandridge, 12 Wheaton, 64.) Acts of incorporation need not be pleaded, {Revised Statutes, 452,) but may still be relied on.</p> <p>As corporations must act by agents, they are bound by the acts of such agents, whenever acting within the scope and legitimate purposes of their creation, (Taylor, &c., vs. Williams, 17 B. Mon., 495.) If the chairman exceeded his authority, the board have recognized the validity of the subscription by paying the first installment and claiming certificates of stock, and are bound to execute the whole contract. (Head, &c., vs. Providence Ins. Co., Condensed Rep. U. S., vol. 1, 376; 1 Parsons on Contracts, 45.)</p> <p>The doctrine that a corporation can only bind Itself by writing under its corporate seal, has been overruled by repeated decisions. (Waller vs. Bank Ky., 3 J. J. Mar., 201; Com. Bank, N. Orleans vs. Newport Man. Co., 1 B. Mon., 14.)</p> <p>The appellants are bound by the act of their chairman, if he exceeded his authority, unless it can be shown that the party dealing with him as agent knew that he was transcending his authority. (Morrison vs. Taylor, 6 Mon., 85 ; Allen vs. Sykes, 5 J. J. Mar., 614.) This rule applies with peculiar force to public functionaries, acting openly for the local public, and under official responsibility. (Louisville City vs. Hyatt, ¿yc., 2 B. Mon., 180-1.)</p> <p>As to the right of the corporation to subscribe stock in roads, see Sess. Acts, 1849-50,^. 482.</p>

CASE 14 — PETITION ORDINARY APPEAL FROM SHELBY CIRCUIT COURT. The facts appear in the opinion of the court. The alteration of the note by the appellees, after its execution by Ratcliffe, released him.

<p>CASE 15 — PETITION EQUITY</p> <p>APPEAL FROM HARRISON CIRCUIT COURT.</p> <p>The facts appear in the opinion of the court.</p> <p>If the order allowing the decree under which Raymond purchased the land to be entered nunc pro tunc was properly made, the prayer of the bill of review should have been granted by the court below; and we insist that the order was properly made. (Tidd’s Practice, p. 661; McKey vs. Moore, 4 Bibb, 321; Bramlett’s heirs vs. Pickett’s heirs, 2 Mar., 10; Bank of Ky. vs. Lacey, &c., 1 Mon., 7; Varnon vs. Moore, 1 Mon., 213; Norton vs. Saunders, 7 J. J. Mar., 12; Roman vs. Caldwell’s heirs, 2 Dana, 20; Jeffreys’ heirs vs. Callis, 4 Dana, 468.)</p> <p>The final decree rendered after the sale, directing Ross to convey the land to the purchaser in pursuance of the commissioner’s sale was not void, and if erroneous, was not appealed from; it therefore cannot be modified for any errors in the record.</p> <p>The record furnishes enough on its face to enable the court to amend it by inserting the omitted decree nunc pro tunc.</p> <p>It is the policy of the law to sustain judicial sales, and not to disturb them for errors in the record, and this decretal sale should not be set aside for a mere clerical misprision.</p> <p>The record was amendable, and the order entering the decree nunc pro tunc proper. (8 Gill & Johnson, 359 ; 4 Iredell, 81; 5 lb., 12; 8 lb., 70; 4 Eng. Ark. Rep., 185; 9 Geo., 185; 9 Gushing, 282; 8 Lb., 315; 2 Wallace, jr., 569; 15 Eng. Law and Equity, 571.)</p> <p>A decree not entered upon the records of the court is void. (Commonwealth vs. Chambers, 1 J. J. Mar., 143 ; Buchner vs. Conley, 1 Mon., 3.) The order entering the decree nunc pro tunc was erroneous; there was nothing in the record to amend by.„ It could not be established as a decree of the court, by parol proof, especially after the great lapse of time.</p>

CASE 16—PETITION ORDINARY APPEAL PROM GARRARD CIRCUIT COURT. The facts are stated in the opinion of the court. - 1. It was not necessary to aver that Miller had received property by his marrige; if he had set up the fact in his answer that he had received nothing by his marriage, the plaintiff was still entitled to a judgment against him, to be levied of any property he might afterwards receive by his wife. 2.

<p>CASE 17 — PETITION ORDINARY</p> <p>APPEAL FROM BRECKINRIDGE CIRCUIT COURT.</p> <p>The facts are stated in the opinion of the court.</p> <p>The demurrer to the petition was properly sustained as to the members of the county court, (11 B. Mon., 143,) and it should also have been as to appellants. The county court has power to build bridges, &c., {Rev. Slat., 233,) and to appoint agents to carry out this jurisdiction. Public agents are not personally responsible, unless expressly made so by the contract, and when the intention is very clear. {Story’s Agency„ chap. ll, p. 408; Lucas vs. Carson, 13 B. Mon., 213; Caruthers, SfC.,vs. Moore, &c., 17 B. Mon., 669.)</p> <p>The answers of appellants showed a good defense to the action, and the demurrer thereto should have been overruled, even if they are held personally responsible. Bnt they acted as commissioners of the county court, and are not personally liable. (Church vs. Graham, MS. Opinion, June Term, 1857; Carson vs. Lucas, 13 B. Mon., 213; Hunter’s adm’rvs. Miller’s ex’r, 6 B. Mon., 612; Anderson’s adm’r vs. Letcher, &c., MS. Opinion, June Term, 1845; Wright, &c., vs. Roberts, MS. Opinion, 1845.) The intention of the parties is the governing rule of construction, rather than the technical wording of a writing. As to the distinction between public and private agents, see 2 Kent’s Com., 824; Story on Agency, sec. 302. The position that if the county judge had no power to authorize appellants to enter into the contract, they must be held personally liable, is not sustained by the authorities. {Story on Agency, sec. 306 ; Story on Contracts, sec. 165; Chitty on Contracts, sec. 210; Perry vs. Hyde, 10 Conn. Rep., 338; Ogden vs. Raymond,22 Conn. Rep., 384; Debott vs. Gelmain, 111. Rep., 371.) Appellants are not presumed to know that there was a defect in the order of court under which they acted, any more than the appellees. (10 Conn. Rep., 338, supra; Steele vs. Moxley, 9 Dana, 139.) In any event the action cannot be maintained upon the contract; it should be an action in the nature of a special action on the case for fraud or willful misrepresentation of authority. (Story’s Agency, sec. 322; 22 Conn. Rep., 384, supra, and authorities there cited; Jefts and wife vs. York, 4 Cush., 372, and authorities there cited!) Cited, also, Story's Agency, 198, sec. 154, a, as to construction of the contract.</p> <p>Neither the body of the covenant nor the manner of signing it, shows any intention to make it the obligation of the county court instead of the appellants. And a parol averment of an intent different from the import of the writing cannot be allowed. But the exhibits of the appellants show their personal liability — they had no competent authority to make the contract; the presiding judge of the county court could not authorize them to do so. {Rev. Stat., 212.) Authorities cited: Trask vs. Roberts, 1 B. Mon., 203; Webb vs. Burke, 5 B. Mon., 54; Me Calla vs. Rigg, 3 Mar., 259; Cook vs. Sanford, 3 Dana, 237.</p> <p>The appellants are bound personally by the contract; they had no authority to bind the court, as the presiding judge could not give such authority. The county court could not subsequently ratify the contract so as to defeat appellees of their remedy against appellants. The allegation of fraud in their answer is insufficient.</p> <p>By the terms and language of the contract the appellants are bound personally; although they are described as commissioners, the obligatory part of the instrument binds them. (1 Greenleaf, sec. 277; OJfutt vs. Ayres, 7 Mon., 356; 4 J. J. Mar., 456; McBean vs. Morrison, 1 Mar., 545; McCalla vs. Rigg, 3 Mar., 259; Trask vs. Roberts, 1 B. Mon., 204; 1 Saunders’ Ev. and Pleading, 105 and 109.) There are other cases where the agent has been held not to be liable, but they recognize the principle that the intention is to be ascertained by the instrument itself, and that if the agent stipulate to do an act he must perforin it. (Hunter’s adm’r vs. Miller’s ex’r, 6 B. Mon., 612; Cook, &c., vs. Sanford, 3 Dana, 237; Carson vs. Lucas, 13 B: Mon., 213.) Appellants are, moreover, bound because they acted without authority, (Story’s Agency, sec. 264-273,) and a subsequent ratification by the court could not exonerate them. (/A, sec. 246.) Appellants, having received the bridge and declared it built according to contract, are estopped to inquire into its sufficiency. (1 Dana, 611; 2 J. J. Mar., 593; 5. B. Mon., 553.) The allegations of fraud in the answers are insufficient. (Story’s Eq. Jur., sec. 197 to 201; Story on Contracts, sec. 510.)</p>

CASE 18 — PETITION ORDINARY APPEAL PROM MADISON CIRCUIT COURT. The facts are stated in the opinion of the court. 1. The instructions should have been reduced to writing by the court before the jury retired. (¡Civil Code, sub-div. 5 of sec. 347.) The language used by counsel was nearly in the very words of the Code. 2.

<p>1. Where one party stipulated to deliver property, at a fixed price, on a future day, and the other party agreed to pay therefor on delivery, and the parties bound themselves “to give security for their respective performance of the contract, if at any time requiredif, at any time after the execution of the contract, one party be required by the other' to give the security, and. fail to do so within a reasonable time after demand, the other party is discharged from all liability upon the contract.</p> <p>2. A covenant in a contract for the sale of property, to be delivered and paid for in • future, that the parties are “ to give security for their respective performance of the contract, if at any time required,” is not a mere independent stipulation, but an essential condition, going to the whole of the consideration.</p> <p>3. When a party is bound to perform an act upon demand, performance, or an offer to perform, must be within a reasonable time after demand; that is, so much time as is necessary, under the circumstances, to do conveniently what the contract requires should be done.</p> <p>4. When the law requires that an act stipulated to be done upon demand, shall be performed within a reasonable time thereafter, in determining what that time is, the jury are to ascertain the facts, and the court to apply the law to those facts, in cases where the facts are controverted or doubtful. Where the facts are admitted or clearly proved, what is a reasonable time is a question of law to be decided by the court. (16 Maine Rep., 168.)</p>

CASE 20 — PETITION EQUITY APPEAL FROM -WAYNE CIRCUIT COURT. The facts are stated in the opinion of the court. 1. The petition contained an original substantive cause of action. The scheme and purpose and preparation to sell and remove the slaves sued for out of the state, connected with the removal of the defendants, threatened irreparable injury to the rights of the plaintiffs, which they had a right, by original action, to call on the chancellor to prevent. 2.

CASE 21 — PETITION EQUITY APPEAL PROM CASEY CIRCUIT COURT. The facts are stated in the opinion of the court. 1. If Coffey did a wrong to the appellees by selling the slaves in Louisville, in the summer of 1840, (thirteen years before the bringing of the action,) the right of action is barred by the statute of limitations. 2.

CASE 22. ATPEAL FROM KENTON CIRCUIT COURT. The facts appear in the opinion of the court. The corporation is not dissolved until a forfeiture is judicially declared by a proper proceeding for that purpose. (9 Wend., 231; Bank of Niagara vs. Johnson, 8 lb., 645.) This has not been done.

<p>CASE 23 — PETITION ORDINARY</p> <p>APPEAL PROM BOYLE CIRCUIT COURT.</p> <p>The facts are stated in the opinion of tbe court.</p> <p>No legal right passed to Tilford & Barkley by the assignment of the account to them. McMurtry was the holder of the legal title, and they of the equity. He is one of the plaintiffs. Graham was the legal holder of the note before he had notice of Tilford & Barkley’s equitable interest in the account. Mc-Murtry was insolvent when his note was assigned to Graham, who was the holder of it when the suit was brought; it was a subsisting demand when his answer was filed. The note is unpaid and the maker insolvent, and the set-off should be allowed. If Graham’s defense was in equity, the judgment should be reversed because of the refusal of the circuit court to transfer the cause to the proper docket for trial.</p> <p>Graham cannot acquire a demand not due against McMurtry, and use it as a defense either against Tilford & Barkley or their assignor. The note was not due and is not connected with the account. Where insolvency is a ground for equitable set-off of an unconnected demand, it must be then due. If the demands were both due, though unconnected, a court of equity, upon the ground of insolvency, might grant the set-off. A set-off must be a cause of action, &c. (Civil Code, section 128.) The Code (section 259) authorizes actions on demands not due upon grounds therein stated, but insolvency is not one of them.</p>

<p>CASE 24.</p> <p>APPEAL FROM FLEMING CIRCUIT COURT.</p> <p>The facts appear in the opinion of the court.</p> <p>Upon the principles of the common law, which have never been repealed by any statute of this state, any matter in controversy may be submitted to arbitration. An executor is a trustee, and if he acts in good faith he should be sustained. There is no principle of the law which prohibits a fiduciary from submitting any matter in controversy to arbitration. The exception that the other devisees had no notice of the time of the meeting of the arbitrators, is wholly untenable. The evidence given before the arbitrators must be presumed to have been sufficient to authorize the making of the award.</p> <p>1. The item in controversy should not be allowed, because fhe affidavit and proof required by the statute were not furnished. (Revised Statutes, p. 340, sections 35, 36, 37, article 2, chapter 37; Civil Code, section 473.)</p> <p>2. The executor had no right to submit the claim to arbitration in the manner in which he did. The statute points out the manner in which personal representatives may submit matters concerning their trusts to arbitration. (Civil Code, section 499.) If a personal representative ever had the right at common law to submit such controversies to arbitration, it is virtually repealed by the statute.</p> <p>3. If the executor had aright to submit the controversy to arbitration, it is not conclusive against the estate. (Kycl on Awards, 39; Tomlin's Law Dictionary, 141, and authorities there cited)</p>

<p>1. A petition upon a note executed by TÍ for a balance due for slaves purchased, charged that he was the agent of B. in the purchase, and was insolvent, and sought to recover the amount of the note of B.; it also, in another paragraph, charged T. with fraud in concealing his agency and insolvency, and claimed that he also thereby became responsible for the amount of the note. Held — That the joinder of a cause of action growing out of contract against B., with a cause of action upon the alleged fraud, &c., against T., was improper, (Civil Code, sec. Ill;) but that the error was waived, not having been objected to before defense. (Ib., sec. 113.)</p> <p>2. H. sold slaves to T., who executed his note for a balance of the purchase money; H. assigned this note to W. without recourse; H. and W. united in an action against T. and B., charging that T. was acting as the agent of B. in the purchase of the slaves, and claiming judgment for the amount of the note against B. Held — That H., by assigning the note to W. without recourse, and by joining with him in the action, showed an intention to transfer, and did by the assignment transfer, to W. whatever remedy he had growing out of the contract against T. or B.</p> <p>3. In such case H. was not divested by the assignment of any right of action which he may have had against T. for the fraud in concealing his agency and insolvency at the time of the purchase of the slaves.</p>

CASE 26 — PETITION EQUITY APPEAL FROM LOSAN CIRCUIT COURT. On the 4th day of October, 1824, Alexander Adams executed • the following deed, which on the same day was acknowledged and admitted to record in the Logan county court: “ I, Alexander Adams, of the State of Kentucky and county of Logan, am desirous to liberate my negroes after arriving at a certain age.

<p>1. A simple request to insure, where no funds are provided, or where there has been no previous dealing between the parties, or no goods on consignment from which the party requested may reimburse himself, will not of itself devolve upon him the duty to insure, or render him liable for failing to do so. Neither will a subsequent effort to comply with such request have that effect. There must be an undertaking or promise, made at the time, and intended as such by the parties. (Story’s Agency, 238; Paley on Prin. and Agent, 19; Story on Bailment, 165.)</p> <p>2. A promise, or undertaking to insure, is implied where the course of dealing has been such that the agent has been used to effect insurances, or where he has funds or effects on hand, or even where the bill of lading from which he derives his authority contains an order to insure, or where the general usage is to insure; and in such case a party is bound at his peril to insure. (Story’s Agency, section 238; Paley on Prin. and Agent, 19; Story on Bailment, 165.)</p>

CASE 28 — PETITION ORDINARY APPEAL FROM FULTON CIRCUIT COURT. The facts are stated in the opinion of the court. Boaz took the oath of office, and executed one of the bonds required by law, in January, 1857. His acts as sheriff cannot be collaterally questioned; and he must, in any event, be considered an officer de facto.

CASE 29. MOTION TO SET ASIDE ORDER OF HEARING AND JUDGMENT OF THE COURT OF APPEALS. The facts appear in the opinion of the court. The order of hearing and judgment should be set aside because there was no appearance by appellee, and the service of the summons is insufficient. (Civil Code, sections 74, 75, and. 878.)

<p>CASE 30 — PETITION EQUITY</p> <p>AHKEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>The facts are stated in the opinion of the court.</p> <p>The Louisville mechanics’ lien law (Loughborough's Digest, title Lien) gives a lien in general terms, but provides that it shall only be enforced by bill in chancery filed within twelve months. After the twelve months expire, the claim of the-mechanic depends exclusively upon the pendency of the suit. If that miscarries, or is for any reason dismissed, the claim is gone forever. It is, therefore, a mere claim by lis pendens, like any other in which an action is brought to affect property. But claims resting upon the mere pendency of a suit are lost unless the suit is diligently prosecuted. (2 Dana, 412; 6 B. Mon., 448.)</p> <p>The objection taken to the precedence of Kendrick for the claim bought of Christopher & Stancliffe, is that he permitted the suit to sleep on the docket, and thus lost his’ lien. There might be something in this objection, if the only claim of Kendrick grew out of the lis pendens on the mechanic’s lien; but Kendrick was a party to the suit of Christopher & Stancliffe, and had made his answer a cross-petition. Erhman and others were not only bound to know of the mortgage to Kendrick, but bound to know of the pendency of Kendrick’s cross-suit; knowing of the cross-suit, they were bound to know of the claim of Christopher & Stancliffe. There was a lis pendens on Kendrick’s mortgage when Erhman and others took their mortgage. The results of that suit, and the whole suit, have therefore a better claim than the mortgagees pending the suit.</p>

<p>CASE 31 — PETITION EQUITY</p> <p>ATREAL PROM LOUISVILLE CHANCERY COURT.</p> <p>In May, 1857, Zanone sued the city of Louisville to recover $147 60, alleging in substance that he had paid the money in 1854 to the contractor, under an order from the city, for the grading, paving, and curbing of a street in front of his lot; that the ordinance under which the work was done was null and void, and that he had paid the money in ignorance, of the fact that the ordinance was void, and that he was not liable, and in mistake of both law and fact. The city did not answer his petition, and judgment was rendered in his favor for said sum, from which the defendant has appealed.</p> <p>The city council had legal authority to order the improvement of the street in question at the cost of the lot owners fronting thereon. (2d section, article 7, City Charter.)</p> <p>The improvement in front of appellee’s property was made, and he paid the money therefor some three or four years before this suit was brought. As he derived a benefit by the improvement of the street, even if the ordinance was not valid, he was in honor and conscience bound to pay for it, and cannot recover it back. (Stojy’s Eq. Jur., vol. 1, sections 147,148,150, and 151; Chitty on Contracts, pp. 151, 623, and 632.)</p> <p>The ordinance under which the improvement was made passed but one board of the general council, and was therefore void, and imposed no obligation upon the appellee. The street was the property of the city, and having improved it without taking the necessary steps to render appellee liable therefor, he was under no legal obligation to pay for it. He made the payment in mistake of the law and fact and has the right to recover it back. (Underwood vs. Brockman, 4 Dana, 309; Bay and Thornton vs. Bank of Kentucky, 3 B. Mon., 510; Kaye vs. Hall, 13 B. Monroe, 458-9; Lambert vs. Ingram’s adm’r., 15 B. Monroe, 269-70.)</p> <p>The 7th chapter and 2d section of the charter of the city of Louisville directs the mode of passing the ordinance. The failure to comply with the requisitions of this section renders the city liable for the expense of the work. (Kaye vs. Hall, &c., 13 B. Mon., 455.)</p> <p>The ordinance was void, and the city alone bound under the contract for the grading and paving. This court has recognized and enforced the right of recovery under nearly similar facts. (3 B. Mon., 513; 4 Dana, 309.)</p> <p>The petition alleges facts which show that the ordinance was void, and that appellee paid for the improvement in mistake of his rights. The city did not demur to nor answer his petition. It appears that the appellee made the payment, believing that the proceedings were regular and valid, and that he was compelled bylaw to pay. As he acted under a mistake of law and fact, he is entitled to recover. (Story on Contracts, section 422; Chitty on Contracts, p. 543 and note; 1 Parsons on Contracts, p. 363.)</p>

<p>1. If the petition contains a statement of all the facts, which, under sections 222 and 223 of the Civil Code, are required to be shown by an affidavit to authorize the issuing of an attachment, and is sworn to, it will be regarded as supplying the place of a separate affidavit. (Scott vs. Doneghy, 17 B. Mon., 324.)</p> <p>2. In sueh case the affidavit of an agent that he believes the facts stated in the petition are true, is sufficient to authorize an attachment to issue under the 222d and 223d sections of the Civil Code, if the plaintiff is absent from the county. (Civil Code, section 611.)</p>

CASE 33 — PETITION ORDINARY AITEAL FROM ALLEN CIRCUIT COURT. The facts sufficiently appear in the opinion of the court.

CASE 34 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. The facts appear in the opinion of the court. The appellee is under a like responsibility as common carriers, (1 Parsons on Contracts, 648,) and cannot be relieved of this common law liability by any implied contract varying the responsibility. (American Law Register, vol. 1 ,p. 685.) Here is a plain undertaking to do a particular thing, and the failure is..a common law liability.

<p>CASE 35 — PETITION ORDINARY</p> <p>APPEAL EROM HARDIN CIRCUIT COURT.</p> <p>The facts are stated in the opinion of the court.</p> <p>1. The sheriff had no power to take the delivery bond, and, consequently, it never occupied the position of a judgment upon which an execution could issue. It did not require any motion to quash the execution and return, because all of the facts appear on the record read in evidence by the defendants. The execution under which the sale was made, having no judgment to sustain it, no title passed to the purchaser, (Richardson, &c., vs. Bartley, &c., 2 B. Mon., 328,) where it was held that the sheriff had no authority to take a delivery bond on an execution indorsed “no security,” and if taken, it cannot be the basis of an execution.</p> <p>2. The sheriff has no power to put a purchaser into the possession of real estate sold under execution. The purchaser is put to his ejectment. The surrender of the land for sale, the levy and sale, did not change the possession. In Woolfolk vs. Overton, (3 A. K. Mar., 69,) and the same case in 3 Lilt., 24, this court expressly decided that the sheriff had no power to deliver possession of land sold by him unless by consent of the defendant. It is not pretended. that any consent was given by Ditto in this case. The sheriff’s deed may be the basis to recover possession by the appropriate action, but it cannot justify a trespass.</p> <p>The judgment should be reversed, (1) because the execution was void, and (2) because the sale was in two days after the levy. Although the order was to sell without an advertisement, still it did not authorize a sale sooner than by law it could have been made.</p> <p>1. Geoghegan, under his deed from the sheriff, had the right of entry, and as no one was in the occupation of the land, he properly took possession. If Ditto had been upon the land, Geoghegan would have been driven to his action, not because he had not the right to enter, but because he must not break the peace in his entry.</p> <p>2. The attention of the court is called to an act approved March 10, 1843, (Scss. Acts 1842-3, pages 60-61,) which was in force when the bond was given under which Geoghegan purchased. That act changed the law as ruled in the case of Richardson, &c., vs. Bartley, (2 B. Mon., 330.) The fact that the bond did not fall due until the Revised Statutes took effect, or that an execution issued after the Revised Statutes were in force, cannot impair the bond which was thus legally executed.</p>

CASE 36 — PETITION EQUITY ArPEAI. FROM FAYETTE CIRCUIT COURT. The facts are stated in the opinion of the court. 1. That no action can be sustained against the sinking fund. First.

CASE 37 — PETITION ORDINARY APPEAL FROM SHELBY CIRCUIT COURT. The facts appear in the opinion of the court. 1. No action can be maintained on the instrument as a bill of exchange. To constitute a valid bill of exchange there must be a drawer. The acceptor must know, when he pays the money, to whose account he is to charge the amount.

<p>1. When a cause has been heard by the court of appeals, and remanded to the cir* cuit court, with directions to render a particular decree or judgment, the cause is finally disposed of to that extent, and no pleadings can be filed in the circuit court which will have the effect of avoiding the mandate of the court of appeals, unless the pleadings are of such a character as would authorize a final decree or judgment to be reviewed or vacated after the expiration of the term at which it was rendered. (Rouse vs. Williams, MS. Opinion, Winter Term, 1857; 18 B. Mon., 768; 4 Mon., 411.)</p> <p>2. An action was brought by the purchaser for the specific execution of a contract for the sale of a tract of land; no allegation of defect of title was made; the court of appeals directed a decree to be entered for a specific performance, on the payment of a balance found due of the purchase money. Before entering the final decree, according- to the mandate, the circuit court permitted the complainant to file additional pleadings, alleging a recently discovered defect in the title of the vendor, and upon the hearing rescinded the contract. Held — That, as the title of the vendor was of public record, it was the duty of the complainant to have examined into its validity before the first trial, and that having failed to do so, he cannot ask a rescission of the contract, or a vacation of the decree for the specific execution of the contract. If, however, a part of the purchase money be unpaid, and the vendor insolvent, the purchaser, being in possession of the land, may suspend the collection of the purchase money until the claim asserted, or outstanding title, shall be investigated.</p> <p>3. A purchaser in possession, who has obtained a decree for the specific enforcement of a contract for the sale of land, occupies virtually the attitude of a purchaser under an executed contract. .Where his vendor is insolvent, and there is a defect in the title, he is entitled to relief commensurate with the loss ensuing from the defective title; but to obtain this relief, he must bring the parties, from whom lie apprehends danger, before the court to have their claims litigated and settled. (1 Dana, 303; 2 Dana, 279.)</p> <p>4. Where a purchaser in possession, under a decree for the specific execution of a contract for the sale of land, whose vendor is insolvent, finds it necessary to proceed against non-resident defendants to quiet his title before the payment of the purchase money, and proceeds on constructive service of process to obtain a decree against such non-resident, (which decree may be opened in five years,) Jie may require from the vendor, in addition to such decree, a bond of indemnity, with good security, against the subsequent assertion of title, before he can be compelled to pay the purchase money.</p>

<p>CASE 39 — PETITION ORDINARY</p> <p>APPEAL PROM UNION CIRCUIT COURT.</p> <p>The facts appear in the opinion of the conrt.</p> <p>In a contract of hiring there is an implied warranty of the fitness of the thing hired, or that it is not diseased or valueless. (Story on Bailments, sec. 390, 390 a.)</p> <p>No offer to return the slave was necessary, as he was of no value to any one. (Hardwick vs. Hardwick, 4 Bibb, 569.)</p> <p>The allegation in the answer that the consideration of the note entirely and wholly failed, is a sufficient answer to the petition; it is legitimate to aver an entire failure of consideration. (Ralston, &c., vs. Bullitt, 3 Bibb, 264; Rudd vs. Hanna, 4 Mon., 531 ; Willett vs. Forman, 3 J. J. Mar., 293.)</p> <p>The court erred in refusing to allow appellants time to amend their answer. (Civil Code, sections 161 and 163.) Cited also, 3 Dana, 474.</p>

<p>CASE 40 — PETITION EQUITY</p> <p>ArPEAL FROM HOPKINS CIRCUIT COURT.</p> <p>In 1833 James Tompkins died intestate. Prior to his death the appellant, his daughter, intermarried with James M. Lynn. Dower in the lands and slaves of the inestate was allotted to his widow. Thereafter, in March, 1840, the appellant united with her husband in a deed to Shelby J. Bradley and Thomas J. Davis, purporting to convey to them all the interest of appellant and her husband in the land and slaves allotted as dower to the widow of said James Tompkins. The deed was duly acknowledged and recorded. Subsequently, Davis sold and conveyed his interest in the property to William M. Robertson. In 1842 Wright Tompkins, one of the children of James Tompkins, and brother of appellant, died intestate, of full age, never having married. The husband of appellant died in 1845. The widow of James Tompkins died in 1852 ; after which Bradley and Robertson sold one of the dower slaves, which fell to them in the division, to McEwen. This suit was brought by appellant, in 1853, to recover the interest in the dower land and slaves which passed to her by descent from her father and brother. Bradley, Robertson, and the other persons interested in the estate, were made defendants. The circuit court dismissed her petition, and she prosecutes this appeal.</p> <p>1. The interest in the slaves in question descended to Mrs. Lynn during her coverture, and not having been reduced to possession by her husband, survived to the wife. (Wallace and wife vs. Talliaferro and wife, 2 Call’s Rep., 447 ; Upshaw vs. Up-shaw, 2 Henning & Mnnford, 389, 392; Pinkard vs. Smith and wife, Litt. Sel. Cases, 333-6; Banks vs. MarJcsberry, 3 Litt., 280; Turner vs. Davis’ adm’r, 1 B. Mon.. 152; Bowling, &c., vs. Wins-low’s adm’r, 5 B. Mon., 29; Marshall vs. McDaniel, 8 B. Mon., 173; Thomas vs. Kennedy, 4 B. Mon., 237.)</p> <p>2. The conveyance to Bradley and Davis did not pass Mrs. Lynn’s interest in the dower slaves, {fiord vs. Hord, 5 B. Mon., 84.)</p> <p>3. The silence or acquiescence of appellant in the sale made by her husband, or her declaration that she had sold her interest, cannot operate as an estoppel. To constitute an act or declaration on the faith of which another has acted an estoppel, the act or declaration must be made in fraud, and result in injury to him to whom it is made. {Hawkins’ heirs vs. King, 2 Marsh., 108; CrocJccii vs. Lashbrook, 5 Mon., 544; Smith’s Leading Cases in Equity, 619, 642, 662, 666; Story’s Equity, 384 — 5.)</p> <p>4. The deed of the husband did not deprive appellant of her right of survivorship in the slaves. (Clancy on Husband and Wife, pp. 144, 148; Bright on Husband and Wife, pp. 84,85; 4 B. Mon., 236-7 ; 5 B. Mon., 86 ; 14 B. Mon., 644.)</p> <p>5. The purchasers of the reversionary interest should show that the price paid was adequate. {Hill on Trustees, top page, 212; Story’s Equity, 338, and note 2.)</p> <p>1. The appellant could not sue for a division of the slaves of her brother, Wright Tompkins, dec’d, without the consent of his personal representative, unless it were shown that all the debts of the decedent had been paid. {Head vs. Berry, 1 Mon., 255; Wells vs. Bowling’s heirs, 2 Dana, 43.)</p> <p>2. Upon the death of Wright Tompkins, the husband of appellant became entitled to her interest in the slaves of said decedent; and, having passed to the husband, she cannot sue.</p> <p>3. That the husband and wife, both joining in a deed, could convey to the purchasers the wife’s interest in slaves held for dower by her mother, can hardly be doubted. (1 Stat. Law, 440, sec. 4.) And appellant recognized the sale and conveyance to Bradley and Davis after her husband’s death.</p> <p>4. McEwen is an innocent purchaser for a valuable consideration.</p>

CASE 41 — PETITION ORDINARY APPEAL PROM M’LEAN CIRCDIT COURT. The facts appear in the opinion of the court. 1. The circuit court erred in overruling the plaintiff’s demurrer to the answer. The defendant’s belief that the cause alleged for the attachment was true, is unavailing, unless there was reasonable ground to believe it true, which is not alleged. 2. The restriction imposed by the court upon the amount of damages is erroneous.

CASE 42 — PETITION ORDINARY APPEAL FROM HEKDEItSON CDIOUIT COTOT. The facts appear in the opinion of the court. 1. The Civil Code (section 111) only authorizes the joining of several causes in one action “ where each affects all the parties to the action.” The cause of action against the city cannot be joined with that against the mayor and council as individuals. They are distinct and incongruous causes of action.

<p>CASE 43 — IN EQUITY</p> <p>APPEAL FROM MUHLENBURG CIRCUIT COURT.</p> <p>The facts are sufficiently stated in the opinion of the court.</p> <p>The sale by the Register was not legally made. There is no proof that it was advertised, and not sufficient proof that a certificate issued'to the purchaser. A sale could not be made by the Register after the land was transferred. The patent to E. Morton would not have issued if the land had not been redeemed. Neither Earle, nor his heirs or assigns, ever had a patent for the land. The appellants’ claim is a legal one; but if both claims are equitable, the appellants have the greater equity.</p> <p>The law presumes that the Register, in making sales of lands for public dues, has complied with the law, and the onus lies on those who object, to prove a non-compliance. Nor did the transfer of the land prevent the Register from selling for the amount due the state. The lien of the state was not destroyed by the transfer. The assignee could occupy no better position than the assignor. The evidence that the land had been redeemed could only emanate from the Auditor, and the Register could only issue a patent after receiving a certificate of that fact from the Auditor. The patent of 1848 was invalid. The appellants have shown no valid claim to the land.</p>

CASE 44 — PETITION ORDINARY APPEAL FROM TAYLOR CIRCUIT COURT. The facts appear in the opinion of the court. The execution of the replevin bond by Robinson, with Parsons as his security, although informal, was valid, and merged the original judgment and released Hoskins from all liability. (Kouns vs. Bank of Kentucky, 2 B. Mon., 303.) Neither the execution of the replevin bond-by Parsons, nor the payment of the debt by him, gave him any right of action against Hoskins.

CASE 45 — PETITION EQUITY ArPEAR ER05Í GREEN CIRCUIT COURT. The facts appear in the opinion of the conrt. Mrs. Barnett was entitled to such share of her husband’s personal estate “ as if he had died intestate.” (2 Slat. Law, 1544.) Her legal rights upon the property of her late husband, upon her renunciation of the will, became fixed and certain by the statute. To claim the proceeds of real estate as personalty, is claiming under the will.

CASE 46 — PETITION EQUITY APPEAL FROM PATH CIRCUIT COURT. The facts of the case appear in the opinion of the court. 1. As this proceeding was instituted under chapter 86, section 2, Revised Statutes, page 592, it was indispensably necessary for the guardian to have executed his covenant before the court could have power to order a sale. The judgment and sale under it are therefore void. 2. The 543d section of the Civil Code does not apply to this case.

CASE 47 — PETITION EQUITY AKPEAL PROM CLAR.KE CIRCUIT COURT. The facts appear in the opinion of the court. Argued: that the grand-children of Isaac Cunningham, under his will, took vested interests in his estate, and that the shares of the devisees who died before they were twenty-one years of age, descended to their father, Isaac Vanmeter. The residuary clauses contained in the will of Vanmeter do not embrace those interests, which passed by descent to his heirs-at-law.

<p>1. In a proceeding, under section 543 of the Civil Code, for the sale of a town lot held by tenants in common, some of whom are infants, the failure of the chancellor, before ordering the sale thereof to observe the subsequent requisitions of that section, will not render the sale void, but only renders the judgment erroneous.</p> <p>2. The purchaser of the property, at such sale, cannot, after its confirmation by the chancellor, and after the expiration of the term at which such confirmation is made, resist the payment of the purchase money upon the ground of the irregularity of .the proceedings under which the sale was had. Miter where the sale was void. (16 B. Mon., 289; 18 II., 387.)</p> <p>3. Nor has the chancellor the power, in such case, to go behind the judgment confirming the sale for the purpose of revising the proceedings or of determining the validity of the sale; the error therein not coming within those enumerated in either of the sub-divisions of sec. 579 of the Civil Code, for which causes alone such power is allowed. (18 B Mon., 97, 769.)</p> <p>4. Nor will the fact that the chancellor, subsequent to the sale, ordered the postponement of the payment of the infants’ shares of the purchase money until they became of age, &c., relieve the purchaser at the sale from the payment of the shares of the adults.</p>

CASE 49 — PETITION EQUITY APPEAL FROM MONTGOMERY CIRCUIT COURT. The facts appear in the opinion of the court. Parol evidence is competent to show that the deed was an advancement, and not a sale; and the proof in the cause abundantly establishes the position that it was in fact an advancement.

CASE 50 — PETITION EQUITY APPEAL FROM KENTON CIRCUIT COURT. There was no delay in bringing suit. It was the duty of the court to render a personal judgment as well as a judgment in rem. (Civil Code, section 406.) The judgment as rendered in this case does not amount to a personal judgment which would authorize the clerk to issue execution. (Civil Code, sec. 420.) Appellant cannot be prejudiced by the error of the court in failing to render a judgment in personam.

<p>1. An ordinance was reported to the city oouncil of Covington, at a meeting thereof in August, 1854, and no further action thereon was had. An entirely new board, who subsequently came into office, in 1856, by an order, caused the words “passed unanimous” tobeadded. Held — That the amendment of the entry of the proceedings of the council of 1854 was unauthorized.</p> <p>2. It is not competent to prove by extrinsic testimony that an ordinance of a city council was voted upon and passed, where the journal of the council only showed that it was reported. No presumption arises that an ordinance was passed from the fact that it was reported, nor from the fact that contracts "were made and work performed under such ordinance.</p>

CASE 52 — PETITION EQUITY APPEAL FROM TRIGS CIRCUIT COURT. The facts appear in the opinion of the court. The appellants, under the will of their grandfather, are entitled to one tenth of his estate, their father having died before the testator. {Rev. Slat.,p. 382, chap. 46, art. 2, sec. 1.) Their portion under the will cannot be charged with the debts of their father to the testator.

<p>1. The chancellor in a suit for partition has the discretion to decree costs or not, as provided in Revised Statutes, (jp- 204.) But this discretion does not extend beyond the ordinary legitimately taxable costs — the fees of the officers of court, including the attorney’s fee as allowed by statute — and not the extraordinary expenses incurred by a party, such as large sums paid to attorneys.</p> <p>2. A party who is made defendant to a petition for the partition of land, who answers and consents thereto, which partition is not however adjudged, by reason of the opposition of other defendants who are infants, and defend by guardian ad litem, is not liable to pay to the plaintiff the fee allowed the guardian for which judgment is given in favor of the infants against the plaintiff. Neither the Revised Statutes, (p. 204,) nor sections 64, 555, of the Civil Code, authorize a judgment therefor against such defendant.</p> <p>3. After an action has been dismissed, judgment for costs given, and the case disposed of, it is error to entertain a motion for apportionment of costs — there was no case in court.</p>

<p>CASE 54.</p> <p>APPEAL PROM BOONE CIRCUIT COURT.</p> <p>Tbe facts are sufficiently stated in the opinion of the court.</p> <p>The constitution of the U. S. (art. 4, sec. 1,) the act of congress passed in May, 1790, (1 Stat. Law, 189,) and the certificates of the prothonotary, show that the court below erred in adjudging there was no such record as that presented. In determining whether a copy of a record from another state is competent evidence we must look to the authentication, and if that be in the form prescribed by the act of congress, the record should be admitted as evidence. Each state has the right to prescribe the mode of proceeding in its courts. (Robertson vs. Barbour, 6 Mon., 529; Scott vs. Coleman, 5 Litt., 350; Rogers vs. Coleman, Hardin, 413; Lilt. S. C., 391; Dudley vs. Lindsey, 9 B. Mon., 488; 2 American Leading Cases, 707.) The court is also referred to the case of Reeside’s Executrix vs. Walker, 11 Howard U. S. Supreme Court Rep., 273, and to 14 U. S. Digest, 511, an abstract of the case of Cromwell vs. Bank of Pittsburgh, 2 Wallace, jr., 569, Pa. Rep. This latter case explains the manner in which Pennsylvania records are made np.</p> <p>It was not error in the circuit court to permit the appellant to file the second amended petition. It was a matter of judicial discretion, and this court will not interfere unless the record showed an abuse of that discretion. The Civil Code authorizes amendments to pleadings as often as may be necessary for the justice of the case.</p> <p>There is nothing in the record which shows that the contract between Scantlin and McCandless and McClure is champer-tous.</p> <p>The petition alleges that the imprisonment of the defendants and their discharge therefrom did not discharge the debt. The laws of a foreign state are matters of fact to be proved like other facts. This allegation is unanswered, and, on demurrer, must be taken as true.</p> <p>Contracts to give aid in carrying on suits were against the policy of the common law; and there is no allegation in the pleadings that this rule of the common law has been changed by any statute of Pennsylvania. The contract, therefore, between Scantlin and wife and McCandless and McClure was void, and the assignment by the latter passed no interest to Miles.</p> <p>At the common law imprisonment for debt under a capias ad satisfaciendum, operated as a discharge of the judgment. (Dozier vs. Gore, 1 Litt., 164 ; Bacon's Abridgment, Execution, D.) The common law on this subject is presumed still to exist in Pennsylvania, and if so, the judgment was discharged.</p> <p>The. court erred in refusing to sustain the demurrer, but as the judgment on the issue of nul tiel record cured the error, the judgment should not be reversed. Each copy of the Pennsylvania record on file differs materially from the other, and neither can be relied on as a true copy. No judgment can be safely rendered on such records.</p>

<p>1. The partial or total failure of consideration, or even fraud between the antecedent parties to a bill of exchange, will be no defense to the title of a bona fide holder of the bill for a valuable consideration, at or before the time it becomes due, without notice of any infirmity in the bill. (Story on Bills, sections 14,188, et passim; 2 Dana, 414.) The Revised Statutes, chap. 22, sec. 6, does not embrace bills of exchange or alter the common law rule.</p> <p>2. The Code of Practice adopted in March, 1851, sec. 58, expressly excepts bills of exchange from the operation of that part of the same section which provides that “ in the case of an assignment of a thing in action, the actionby the assignee is without prejudice to any discount, set-off, or defense now allowed;” and this provision of the Code, not being inconsistent with the Revised Statutes, (chap. 22, sec. 6,) is not repealed thereby. [See. 58, supra, is identical with section 31 of the last edition of the Code.]</p> <p>3. A contract for the sale of slaves was made in Louisiana, and the bill of exchange for the price was drawn and delivered there, payable in Kentucky. It was addressed to K. & Co., in Kentucky, and, in the absence of proof to the contrary, must be taken to have been accepted in Kentucky. Held — That the performance of the contract, and the defenses to which it is liable, in the hands of an innocent holder, are to be controlled by the laws of the place of acceptance and performance. (Story on Bills, sections 131,158, et passim; Story's Conflict of Laws, sec. 286.)</p> <p>4. Under the laws of Louisiana a bill of exchange in the hands of a bona fide holder, for value, is not subject to any abatement of the face of the bill arising out of transactions between the original parties; as for unsoundness in negroes sold for which the bill was given. (17 Howard, 11-16.)</p> <p>5. In a suit upon a bill of exchange judgment may be given for the principal and the interest which has accrued thereon to the time of the judgment. (Revised Statutes, chap. 53, see. 6,^. 420.)</p>

<p>1. Marriage, though in some respects a contract, is not within the constitutional interdiction of legislation impairing the obligation of contracts. (4 Wheaton, 518; 2 Kent’s Com., 108; 8 Conn. Rep., 541; 7 Dana, 184; 3 B. Mon., 90; 9 lb., 308.)</p> <p>2. An act of the legislature, divorcing husband and wife, passed in 1840-1, with the assent and for the benefit of both parties, and not “ for the benefit of one party in consequence of the breach of the contract by the other,” which was acquiesced in by both parties, and under which each party enjoyed the rights of unmarried persons— held to be no exercise of judicial power by the legislature, and not in violation of the constitution.</p> <p>3. Where a legislative divorce was obtained in 1840-1, with the written assent of the wife, and she received a sum of money agreed upon at the time of separation, and acquiesced in the divorce for thirteen years, enjoying in the meantime the rights of a feme sole, a court of equity should not listen to her application to invalidate such divorce and have dower.</p> <p>4. Section 440 of the Civil Code, providing compensation to an attorney for a nonresident, is merely directory, and was intended to provide for compensation when not provided by the non-resident; and not where it is made to appear that the attorney, though appointed by the court, is really acting under a contract for pay from the nonresident, and looking to him for compensation.</p> <p>5. Five per cent, is generally, though not universally, allowed to administrators for services as such; but the allowance is within the discretion of the court, and should be proportioned to the service. The court of appeals will not disturb the allowance made, unless there has been an obvious abuse of this discretion.</p> <p>6. A state of facts attending the obtainment of a deed conveying the interest of a party as heir, devisee, &c., in the estate of her father, from which the court of appeals decide that the conveyance was fraudulently obtained, and reverse the judgment of the circuit court which adjudged it to be valid.</p>

CASE 57 — PETITION ORDINARY APPEAL PROM KENTON CIRCUIT COURT. The facts sufficiently appear in the opinion of tbe court. 1. Tbe special contract is set forth in defendant’s answer, and the petition, if defective, is tbus aided. (Stephens on Pleading,p. 179.) If such is not tbe case, the court erred in refusing to allow the amended petition to be filed, which set forth facts showing a right of action against the city. 2.

<p>1. Under the provisions of the act of 1798 (2 Stat. Law, 1480) a deed of gift of a slave, when the possession does not accompany the deed, will not pass the title, unless the deed is recorded within the time required by law; when so recorded, the title, as between the parties, will pass thereby; this, however, is the only effect of the recording of the deed.</p> <p>2. All absolute conveyances of goods and chattels, whether by sale or gift, and whether recorded or not, when the possession remains with the grantor or donor, are fraudulent in law as to creditors and purchasers. The possession, however, of the father is the possession of his infant child, where the latter resides with him and is invested with the title to personal chattels in the possession of the father. (3 Monroe, 30; 7 Monroe, 97.)</p> <p>3. A voluntary conveyance is deemed fraudulent in law as to antecedent creditors of the donor. As to subsequent creditors, its validity depends upon the intention with which it was executed. As to the latter, it is not fraudulent merely because it is voluntary; but if they wish to avoid it, they must prove a fraudulent intent. (3 J. J. Mar., 290; 5 Jb., 555; 4 Dana, 253.)</p> <p>4. There is a distinctien, so far as creditors are concerned, between voluntary conveyances to the grantor’s children and to strangers; in the former, where there is no actual fraudulent intent, and the gift is a reasonable advancement considering the donor’s condition, and there is ample estate unincumbered for the payment of his debts, such conveyance will be valid even against antecedent creditors.</p> <p>5. Purchasers are regarded as having a higher equity than general creditors. (1 Connecticut Rep., 525-8.)</p> <p>6. By the laiv as it stood in 1835, a voluntary conveyance, not actually fraudulent, should be deemed valid against a subsequent purchaser for a valuable consideration, with actual notice.</p> <p>7. A voluntary conveyance is presumptively fraudulent against subsequent purchasers for a valuable consideration without actual notice — not absolutely void — but the presumption of fraud is so strong as to impose the onus probandi that it was made bona Jide upon the party claiming under it.</p> <p>8. Constructive notice, arising from the recording of a voluntary conveyance, is not sufficient to render such conveyance valid against subsequent purchasers for a valuable consideration; such purchasers must be shown to have had actual knowledge of the gift. (2 B. Mon., 345; 5 Peters, 265, 281.) The rule of caveat emptor does not apply.</p> <p>9. In July, 1835, W. made a deed of gift conveying a slave, &c., to his two sons, who were infants; the deed tras duly recorded; in Octoher, 1835, after the death of one of the donees, W. sold and delivered the same slave to E., and made him a bill of sale therefor. W. had remained in possession of the slave from the time of the gift until the sale was made, the surviving donee living with him. In 1854, the surviving donee, upon arriving at age, instituted suit for one half of the slave, and increase and hire. Held — That unless E., at the time of his purchase of the slave, had actual notice of the gift of W. to his infant sons, the deed of gift as to him is presumptively fraudulent, and it devolves upon the donee to remove the presumption of fraud by proving that the gift was fair and bona fide.</p> <p>10. Under the provisions of the Civil Code, one witness may be sufficient to sustain a plaintiff’s claim, notwithstanding the denial by the defendant in his answer of a material fact in issue between the parties.</p>

<p>1. Wherever an instrument is executed, -which is intended to carry into execution an agreement previously made, but which, by mistake of the draftsman, either as to law or fact, does not fulfill that intention, or violates it, equity will correct the mistake, and compel the party refusing, to comply with the agreement according to its terms. (6 Mon., 311; 1 Peters, 13; Story's Eg., sec. 115.)</p> <p>2. M. and A. borrowed money of S. to pay a debt for which they were both liable, and executed their joint and several note to S. They afterwards agreed with S. to take up their note and give him a bill of exchange in payment, on which A. was to remain bound to S. S., by mistake, and ignorance as to the order in which parties to such paper were bound, was made drawer, and A. payee and indorser. Held — That where these facts are sufficiently alleged and proved, a court of equity will grant relief, and compel A. to pay the amount.</p>

<p>CASE 1 — INDICTMENT—DECEMBER</p> <p>APPEAL PROM NICHOLAS CIRCUIT COURT.</p> <p>The facts are stated in the opinion of the court.</p> <p>1. It is contended that in a case of this kind tbe parties have no right to make an agreement to withdraw a juror, and that the court erred in permitting it to be made and allowing a trial by eleven jurors.</p> <p>2. The specific offense charged in the indictment was not sustained by the evidence, and the circuit court erred in refusing the appellant a new trial.</p> <p>1. As the defendant consented to be tried by eleven jurors, he is bound by the agreement. A person can waive his constitutional rights in such case.</p> <p>2. There is no substantial discrepancy between the allegations of the indictment and the proof.</p>

CASE 2 — INDICTMENT APPEAL FROM FLEMING CIRCUIT COURT. -Ttoffacts sufficiently appear in the opinion of the court. If betting on an election for president of the United States, embracing all of the states, comes within the spirit and intention of the act of 1854, the verdict of the jury should have been for the commonwealth. The bet was made in this state, on the result of an election held under the laws of the United States, and within the letter and spirit of that act. 1.

CASE 3 — INDICTMENT APPEAL FROM FAYETTE CIRCUIT COURT. The facts are sufficiently stated in the opinion of the court. 1. It was competent for the defendant to show that the deceased was a man of violent, cruel, and blood-thirsty temper and disposition, and that he habitually carried concealed deadly weapons upon his person, together with the defendant’s knowledge of it, and of the previous threats made by the deceased.

<p>CASE 4 — FORFEITED RECOGNIZANCE</p> <p>APPEAL PROM TAYLOR CIRCUIT COURT.</p> <p>The facts appear in the opinion of the court.</p> <p>1. The court erred in not rendering judgment because there was no answer filed. (Grim. Code, sec. 92; Civil Code, sec. 409, 410,388.) Thornton’s affidavit cannot be treated as an answer. None of the securities appeared or answered, and, as to them, the error is manifest. (4 Bibb, 181; 2 Mar., 132; 3 Mon., 212; 1 Dana, 98.)</p> <p>2. The court has no constitutional power to remit a forfeiture of a recognizance. (Art. 1, secs. 1 and 2, Con. Ky.) Ib., art 3, sec. 10; 14 B. Mon., 392; 9 B. Moil., 302.) Section 94 of the Criminal Code is unconstitutional and void.</p> <p>1. The circuit court before judgment has power to remit the forfeiture, and section 94 of the Criminal Code, which confers this power, is not in conflict with the constitution.</p> <p>2. The court should have dismissed the action upon the forfeited recognizance. The offense charged was a misdemeanor. It was not necessary that the defendant should have been present at the trial. If convicted in his absence, his bail could discharge themselves by surrendering him in execution of the judgment. (Grim. Code, sec. 150; Form of bail bond, Codepage 391.) As he was acquitted, the bond was no longer obligatory.</p>

CASE 5 AFTEAL FROM BOYLE CIRCUIT COURT. The facts appear in the opinion of the court. The bond is not prohibited by any statute. The statutes relating to this subject are, Revised Statutes,p. 615,sec. 14; Civil Code, sections 186, 190. 1. The bond was not taken or received by the sheriff under color of his office.

CASE 6 — PETITION ORDINARY APPEAL PROM JEFFERSON CIRCUIT COURT. .The facts appear in tbe opinion of the court. The plaintiffs were entitled to a judgment for their costs. (Revised Statutes,page 204, sec. 13.) There are no exceptions to the ruling of the court, and none showing the testimony. The judgment only is before this court, and it is too small to give this court jurisdiction. The case ought to be dismissed for want of jurisdiction.

CASH 7 — PETITION EQUITY APPEAL KOM CALDWELL CIRCUIT COURT. The facts are stated in tbe opinion of the court. 1. As the deed is canceled and held 'for nought, as to the plaintiff, there is no principle of equity or justice which will allow Tinsley, the fraudulent grantee, to have a lien on the property for the payment of any demand he may have against the fraudulent grantor. 2.

<p>CASE 8 — PETITION ORDINARY</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT.</p> <p>The facts are stated in the opinion of the court.</p> <p>A surety cannot obtain judgment against his principal by a summary proceeding otherwise than as prescribed by sections 479 and 480 of the Civil Code. The plaintiff was not entitled to a judgment because the debt was paid; and this being done, it follows that the plaintiff could not transfer a judgment which was satisfied.</p> <p>The surety, having paid the debt, could recover judgment against the principals, either by action at law or motion, {Rev. Stal., chap. 97, sec. 7, p. 655,) and was entitled to the assignment of the judgment against them. (lb., sec. 8, p. 656.) Sections 479, 480 of the Civil Code do not apply to this case.</p>

<p>CASE 9 — PETITION ORDINARY</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT.</p> <p>The facts appear in the opinion of the court.</p> <p>1. None but parties or privies can maintain an action on a written contract. (1 Chitty's Pleading, 3.) The commonwealth could not maintain an action on the bond — it was a nullity. (Leigh's Nisi Frius, 658; Spencer vs. Field, 10 Wend., 87.) The bond was not a statutory bond, because the act of 1852, under which it was taken, had been repealed by the act of 1854. (2 Scss. Acts, 1853-4, p. 320; 4 Mon., 484.) There was no consideration for the bond, and it was therefore not obligatory on Haynes or his security.</p> <p>2. The bond was not obligatory under the second lease. Haynes having complied with all the duties imposed on him by law, the bond was discharged, and could not be revived by another renting of the premises.</p> <p>3. The effect of the act of 1854 was to repeal that of 1852. (1 Ashmcad, 179 ; 8 Port., 434.)</p> <p>The stipulations of the act of 1854 are substantially the same as those of the act of 1852. The bond, at any rate, was a good common law bond. (2 Litt., 310, 313 ; 3 Mon., 342; 2 J. J. Alar., 418, 423; 5 Dana, 224.) The change of the lease did not affect the validity of the bond.</p> <p>The bond sued on is a valid common law bond. (1 Bibb, 192; 2 lb., 186, 199; Hardin, 516-17-18; 2 Liti., 125-6, 310; 3 Mon., 213, 342-3; 4 Mon., 225-6-7; 5 Dana, 224; 2 /. /. Mar., 418; 16 B. Mon., 559.)</p>

<p>Appellees left with Walker a sum of money with which to pay several of their promissory notes. Walker, for his own convenience, deposited the money in the banking house of Walker, Stone & Co. In paying to appellant a note due him, and also notes due to others, upon checks drawn by Walker in favor of the holders of the notes, it was alleged that the cashier, by mistake, overpaid appellant $70 on one of the checks. The banking house caused suit to be instituted in the name of appellees for the recovery of the $70. Held — That the deposit of the money by Walker was a general deposit, which created a debt on the part of the bank to the depositors, (Story on Bailments, sec. 85;) and that the right of action for the over payment was in the bank, and not in the appellees.</p>

CASE 11 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. The facts appear in the opinion of the court. 1. As to Mrs. Way and her interest, the decree and sale are void. (Rev. Stat.,pp. 593-4, art. 5; Ib.,p. 592, sec. 2, art. 3.) 2. The interest of the infant is a contingent remainder, and the court had no jurisdiction to order its sale. (Rev. Stat., art. 3,p. 592; 1 Blk. Com.,pp. 164, 165, 166,167, 168; 2 lb., 175. 3.

<p>CASE 12 — PETITION ORDINARY</p> <p>ArPEAL, FROM GARRARD CIRCUIT COURT.</p> <p>Lusk sued Hopper as administrator of Anderson, upon a note due 21st July, 1857, for one thousand dollars, executed to Lusk by Hopper, as administrator, for the professional services of Lusk in prosecuting Lemaster and Clark, who were charged with the murder of Anderson. The heirs of Anderson having made the affidavit mentioned in the opinion, were permitted to defend the suit. Verdict and judgment having been rendered for the defendants, Lusk prosecutes this appeal.</p> <p>The act of 1846 was repealed by the Revised Statutes, and has never been re-enacted.</p> <p>The affidavit made by the heirs of Anderson is insufficient; and their answer does not present any valid ground of defense to the action. The note was executed for a good and valuable consideration, which is not impeached. The administrator had legal authority to employ counsel to prosecute persons charged with the murder of his intestate. Lusk was entitled to recover under the evidence in the cause, and the court erred in instructing the jury to find for the defendant. In any event, Lusk was entitled to a judgment, in personam,, against Hopper.</p> <p>The proof shows that Lusk made an able and vigorous prosecution, and that the fee was not excessive. The administrator had legal authority to employ him. The statute allowing heirs to defend suits against an administrator does not apply to this case. If, however, they can defend, their answer and the proof are not sufficient to defeat Lusk’s right to recover. The note shows a good consideration on its face. Authorities cited: Thompson vs. Buchanan, 2 J. J. Mar., 420; Tribble vs. Oldham, 5 J. J. Mar., 144.</p> <p>The administrator had no authority to bind the estate. (2 Williams on Executors, 1534.) The estate of the intestate consisted of land, and the administrator could not, by his contract, in effect render the heirs liable. (3 Bibb, 529; 2 Bibb, 609; 2 Williams on Executors, 1504.)</p> <p>The note was not executed for the benefit of intestate’s estate, nor for any valid consideration inuring to the estate, nor on account of any liablity or obligation of the intestate or of his estate. Its execution was in fact prejudicial, rather than beneficial to the estate. Judgment could not properly be given against Hopper in personam. The circuit court properly permitted the heirs to defend the action.</p>

CASE 13 — PETITION ORDINARY APPEAL PROM MADISON CIRCUIT COURT. The facts appear in the opinion of the court. There is no allegation that the notes were assigned to the plaintiff. The assignments are therefore no part of the record. The notes declared on, being a part of the record, (Civil Code, sec. 145,) show that they were executed to another. The plaintiff improperly declared on them as executed to him, and cannot recover. The petition sets forth a good cause of action.

<p>1. To authorize the reference of a controversy to arbitration by rule of court, concerning which there is no action pending, it is necessary that there be an agreement in writing filed and noted of record, or an entry on the record, stating the matter submitted. (Civil Code, sec. 499, sub-div. 1.) A judgment upon the award, without these prerequisites, is unauthorized.</p> <p>2. Where there is an action pending, and a submission to arbitration by rule of court, and the arbitrators make an award in respect to matters not involved in the action, and there was no submission of such matters in the mode prescribed by law, the award can only be entered as the judgment of the court, so far as it decides upon the controversy involved in the action.</p> <p>3. The objection to entering a judgment on an award, that the award was not made out and returned, and copies delivered to the parties ten days before the term at which the judgment was rendered, cannot be made for the first time in the court of appeals, (iCivil Code, secs. 577, 578.)</p>

CASE 15 — PETITION ORDINARY APPEAXi ER05I MADISON CIRCUIT COURT. The facts appear in the opinion of the court. 1. The answer does not present a valid defense. It does .•not allege that the slaves were well of the measles when the •defendant sold the first or the last of them, in August and September. The evidence that they were, in the absence of such allegation, was irrelevant. Plaintiffs were not shown to have been in default. 2.

<p>1. An affirmation in a bill of sale of a jack, that he is a good and sure foal-getter, imports a covenant of warranty. (2 B. Mon., 374.) So, a verbal affirmation, made at the time of the sale of a jack, that he was a sure foal-getter, is such a representation of a fact as amounts to a warranty.</p> <p>2. Whenever the vendor, at the time of the sale, makes an assertion or representation respecting the kind, quality, or condition of the thing sold, upon which he intends that the vendee shall rely, and upon which he does rely in making the purchase, it amounts to a warranty. (8 Comen, 25 ; 12 East, 637 ; 9 N. Hampshire Rep., Ill; 2 B. Mon., 374.) If, however, the vendor merely intends to express an opinion or belief about the matter, and not to make an affirmation of a fact, the statement will not amount to a warranty. Whether the vendor intended the one or the other, is a question for the jury to decide, where doubts exist upon the evidence.</p>

CASE 17 APPEAL PROM GARRARD CIRCUIT COURT. The facts sufficiently appear in the opinion of the court. The court erred in allowing, out of the estate, the fees of $200 to Lusk and Turner, and in the allowance of $125 to Lusk, as administrator, for any supposed risk or trouble about the slaves. 1. The court of appeals have no jurisdiction of the case. (Civil Code, sections 15, 16, 20, 21, 520; Rev. Stat., p. 237, suh-div. 9 ; 12 B. Mon., 510.) 2.

<p>1. Where the plaintiff alleges a material fact, and the defendant simply denies any knowledge in reference thereto, such denial is insufficient to put the plaintiff upon proof of the allegation. The answer should, in addition, deny sufficient information of the fact alleged upon which to found a belief. (Civil Code, sec. 125.)</p> <p>2. A mortgage, which is not made in contemplation of insolvency, is valid. Such a mortgage is not prohibited by the act of 1856, (General Laws, 1855-6, page 107,) although it may make preference among existing creditors. Unless it be made in contemplation of insolvency, and also with the design to prefer one or more creditors to the exclusion of others, it is not embraced by the statute, supra, although made to secure debts and liabilities not created simultaneously with its execution.</p> <p>3. The object of the legislature, in the enactment of the act of 1856, supra, was to prevent an insolvent debtor from making preferences among his creditors; and it should be liberally construed to effectuate that intention.</p> <p>4. A decision of the circuit court excluding testimony, and not excepted to, cannot be inquired into by the court of appeals. (Civil Code, sec. 653.)</p> <p>5. A petition alleged that a mortgage was made in contemplation of insolvency, and with the design to prefer one creditor to the exclusion of others, but did not allege that the mortgage embraced all the mortgagor’s property, or that he was insolvent, or largely indebted at the execution of the mortgage, and depositions tending to establish the fact of mortgagor’s insolvency excluded by the circuit court; but other facts appearing in the record sufficient to sustain the allegation that the mortgage was made in contemplation of insolvency.</p> <p>6. In order to bring a mortgage within the saving of the act of 1856, supra, as to “ any mortgage made in good faith to secure any debt or liability created simultaneously with such mortgage,” the debt itself must have been created simultaneously with such mortgage, and not have had a previous existence; it is not sufficient that the evidence of the debt was then executed.</p> <p>7. Inasmuch as every mortgage, where there are other creditors besides the mortgagee, must, from its very nature, be made to prefer one or more creditors to the exclusion of others, whenever such mortgage is made in contemplation of insolvency, it is embraced by the act of 1856, supra, and operates as a general transfer of all the debtor’s estate for the benefit of all his creditors, unless it can be brought within the saving of the statute, supra, and this it devolves upon the mortgagee to show.</p> <p>8. If a mortgage, executed in contemplation of insolvency, secures several debts created in good faith simultaneously with the execution of such mortgage, and it also includes another debt existing previously thereto, it operates as a transfer under the statute of 1856, supra.</p> <p>9. Where the mortgagee is secured in a debt for which he is only surety of the mortgagor, he is not a creditor, and is not embraced by the language of the statute, supra f but as the mortgage made for his indemnity would inure to the benefit of the creditor for whose debt he was surety, and thereby virtually operate to prefer one creditor over another, it must be regarded as falling within its meaning and spirit. Under the rule of construction laid down by the court, they say the liabilities of sureties should be considered as embraced by the statute, supra.</p> <p>10. Actions wherein the benefits of the statute, supra, are sought, must be commenced within six months after the recording of the deed of transfer, mortgage, or assignment, or the delivery of the property or effects transferred. (Sec. 2.)</p> <p>11. The circuit court has the right, in a proceeding under the statute, supra, to order a sale of perishable property embraced in the mortgage, in the absence of any allegation in plaintiff’s petition that the same would be illegally disposed of, or would not be forthcoming at the rendition of the judgment. (Act of 1856, supra, sec. 4; Civil Code, sec. 239.)</p> <p>12. In actions under the statute, supra, any number of persons interested may unite in the petition, but it is not necessary to make any persons defendants except the debtor and transferee. (Statute, supra, sec. 3.) Other creditors may present their demands by answer and cross-petition, or before the master after reference.</p>

<p>CASE 19 — PETITION EQUITY</p> <p>APPEAL FROM TRIGG CIRCUIT COURT.</p> <p>The facts appear in tbe opinion of the court.</p> <p>The requisites necessary to an election are laid down in 2 Roper on Legacies, 390. The will of Hayes should be construed to apply to other lands which he owned and on which he lived. (4 Dana, 158; 2 Bibb, 407.) It does not appear that Mrs. Hayes was cognizant of her rights. The length of time does not raise a presumption that she elected to hold under her husband’s will. (2 Roper, supra, 440-1; 4 Dana, 158.) The fact that she devised the land to her grand-daughter shows that she did not understand she had elected to take under the will of her husband, with a knowledge that she was losing her rights under the will of her father.</p> <p>It is well established that no one shall hold under and in opposition to a will, but must elect. (2 Bibb, 408; 6 Mon., 635; 3 J. J. Mar., 215, 365; 1 Dana, 203.) Mrs. Hayes accepted the provisions of her husband’s will, received and enjoyed the property devised her, and thereby waived her independent right to the land, and it passed by-his will. (7 Dana, 5.)</p>

<p>The Trill of C. contained these clauses : “ I bequeath to my daughter Corinna all my estate, real and personal, consisting of” * * * [Here the lands are described and negroes named.] “ Now in case my daughter Corinna should change her name by marriage, the title of the land, and one half of the negroes above named does not pass to her husband, but I reserve the same for her and her heirs only. Yet her husband may have the use of the same so long as they may live together.” Held — That Corinna took a fee-simple estate in the lands devised, and not a life estate in the event of her marriage with a use to the husband.</p>

<p>An affidavit to obtain an attachment under the Civil Code, (sections 221, 222,) must state, in terms or in substance, the nature of the plaintiff’s claim, that the claim is just, and the amount which the plaintiff believes he is entitled to recover. These provisions of the Code must be strictly complied with. It will, however, be sufficient if the requisite averments are contained in the petition, and it is sworn to, as decided in Scott vs.Doneghy, (17 B. Mon., 324.)</p>

<p>CASE 22 — PETITION EQUITY</p> <p>APPEAL PROM PULTON EQUITV AND CRIMINAL COURT.</p> <p>The facts appear in the opinion of the court.</p> <p>1. In the construction of a will effect should be given to every provision. (1 Mar., 217.) Giving effect to both clauses of the will in this case, it is manifest that the testator intended to give to the widow the property during her life — the annual surplus, beyond her support, to go to the children.</p> <p>2. The Revised Statutes provide that a brother or sister of the full blood shall take twice as much as those of the half blood. But the mother does not occupy the same position, and is not intended to be included in that provision of the statute.</p>

CASE 23 — PETITION EQUITY APPEAL FROM BULLITT CIRCUIT COURT. The facts sufficiently appear in the opinion of the court. Abandonment for one year, as a ground of divorce, can be proved by one credible witness, as well as any other fact. The ground of adultery is an exception to the rule. (Revised Statutes, p. 391.)

CASE 24 — PETITION EQUITY Al'rEAL FROM DAVIESS CIRCUIT COURT. The facts appear in the opinion of the court. The interest of all parties required a sale of the slave. If this is refused, there is “good cause” shown to require the appellee to give bond, with surety, for the forthcoming of the slave, as provided by the Revised Statutes, {p. 628, sec. 9.) The law does not authorize a judgment for the sále of the slave.

<p>1. Under the act of December 16th, 1857, (Session Acts, 1857-8, p. 2,) a cross-petition is not allowed a defendant against hi» co-defendants, except for a cause of action affecting the subject-matter of the main or original action.</p> <p>2. In' a suit in equity brought by a creditor of the estate of a testator against the devisees, to recover the debt duo the creditor, in which the administrator with the will annexed is also made a defendant, the administrator cannot, by cross-petition against his co-defendants, the devisees, recover a balance alleged to be due-him from the estate npon a former settlement; nor can the devisees, in such proceeding, surcharge the settlement. It must be by a direct proceeding.</p>

<p>CASE 26 — PETITION EQUITY</p> <p>APPEAL FROM RUSSELL CIRCUIT COURT.</p> <p>The facts appear in the opinion of the court.</p> <p>As Mrs. Smith was entitled to the land, she was also entitled to the rents. {Pugh' vs. Bell, 1 J. J. Mar., 404.)</p>

<p>CASE 27 — PETITION EQUITY</p> <p>APPEAL FROM RUSSELL CIRCUIT COURT.</p> <p>The facts appear in the opinion of the court.</p> <p>1. The clerk had no authority to make the order of attachment.</p> <p>2. The Civil Code regulates the mode by which sureties may obtain provisional remedies against their principals, (sections 728, 729, 730;) and section 4 of chap. 97, of the Revised Statutes, is superseded. (Civil Code, secs. 748, 875.)</p> <p>3. The ground for the attachment in this case is insufficient.</p> <p>No allegation was necessary, except that the plaintiff was security without indemnity. (Revised Statutes, section 4, page 655.) That section is not repealed by the provisions of the Civil Code.</p> <p>The only allegation required by sec. 4 of chap. 97 of Revised Statutes, (page 655,) is, that the plaintiff is security and requires the indemnity, whether the debt be due or not. The section referred to has .not been repealed by the Civil Code, but is still in full force in cases where the debt for which the surety is bound is due, because tbe Code makes no provision for a surety to sue for and obtain indemnity where the debt is due. The repealing clauses of the Code do not therefore affect this remedy given by the Revised Statutes. (3 Bibb, 181; 18 B. Mon., 570 ; Alexander vs. Lewis, ante, page 407.) On the motion to discharge the attachment the court should not regard any informality in the mode of obtaining it. (Civil Code, secs. 287, 291; sec. 294 does not apply to this case.) In any event, the judgment for the debt is not erroneous.</p>

<p>1. Under the law, as it stood before the adoption of the Revised Statutes, the general residuary legatee was entitled, in that character, to whatever personal estate might fall into the residue after the making of the will, by lapse, invalid disposition, or other accident; but it devolved upon such legatee to prove the facts necessary to show that such lapse or failure has occurred in order to establish his right as residuary legatee; and until this is done, in the case of the hires of slaves, the administrator with the will annexed would have the right to control and manage the slaves and hires.</p> <p>2. If such slaves are, however, held adversely to the administrator, for five years, he is barred of his right to recover possession of them, by action, notwithstanding his attitude be that of a trustee in reference to the hires of the negroes, which were appropriated, by the will, to the support of infirm or disabled slaves. He could have maintained his action at law in proper time, and the statute of limitations can always be relied on where there is a legal remedy; it is only in cases of trusts, purely equitable, that the statute is not allowed to operate.</p>

<p>CASE 29 — PETITION ORDINARY</p> <p>APPEAL FROM SHELBY CIRCUIT COURT.</p> <p>The facts appear in the opinion of the court.</p> <p>1. The plaintiff cannot recover under section 2 of article 4 of the Revised Statutes, {page 187.) because the petition does not aver that the constable had collected the fee bills. The averment that he believed they had been collected is not sufficient. The receipts filed were not evidence. (18 B. Mon., 634.) If they were, however, a recovery could not be had upon a defective petition.</p> <p>2. Neither was he entitled to recover under sec. 5, page 188, Rev. Stat., because the petition does not allege that a demand for the return of the bills was made.</p> <p>3. He cannot recover under sub-div. 1 of sec. 5, supra, which provides that the officer shall be liable for any injury in failing to collect a fee bill, when by proper diligence it might have been collected. The petition alleges a belief that the bills were collected, and fails to show any want of diligence.</p> <p>4. It does not certainly appear from the petition whether the plaintiff sues for a failure to pay over the amount of fee bills collected, or for a failure to return them on demand, or for injury in making a false return.</p> <p>The petition was demurable for that uncertainty. The judgment, in any event, is too large. The constable should be credited for his commissions.</p> <p>The appellant is liable under sec. 2, and sub-div. 2, of art. 4, Rev. Statutes, (pp. 187-8,) and also under sec. 5 of the same article. The petition sufficiently alleges a failure to return the bills and demand six months after the date of each receipt. It is also alleged that the plaintiff believes the money was collected on said bills. The Code does not require an allegation to go beyond a belief.</p>

<p>CASE 30 — PETITION EQUITY</p> <p>APPEAL FROM MARION CIRCUIT COURT.</p> <p>The facts appear in the opinion of the court.</p> <p>The sheriff was not authorized to serve process in a case wherein he was plaintiff. (Civil Code. sec. 737.) The appellant shows an undoubted right to relief if the statements of his petition be true, and these are admitted upon demurrer.</p> <p>1. The petition should be treated as a bill of review. (12 B. Mon., 585.) The pre-existing rules and practice of equity as it regards bills of review are not changed by the Civil Code. (14 B. Mon., 212.) Bills of review may be filed for two causes: 1. For errors apparent on the face of the record; 2. By leave of the court, for errors dehors the record which could not have been discovered by reasonable diligence before the decree was rendered. (10 B. Mon., 301; 11 B. Mon., 220; 12 B. Mon., 588-9.) Affidavit should have been made that no previous injunction had been granted. (Civil Code, section 314.)</p> <p>2. Knott should have asserted his claim against the estate in the original suit, and not by a new suit or bill of review, tie should have made the demand and affidavit required by section 473 of the Civil Code.</p>

<p>CASE 31 — IN EQUITY</p> <p>APPEAL FROM WASHINGTON CIRCUIT COURT.</p> <p>This appeal is from a judgment of the Washington circuit court rendered at its August term, 1858, for $832 20, and interest from October 23, 1844, with costs, in favor of Meadows, against McDonald and his securities, on a settlement of his accounts as guardian to Meadows. McDonald became guardian and executed bond with security in the Washington county court. The suit was commenced on the 4th of October, 1850.</p> <p>McDonald and his sureties cannot be charged in this suit against them for money received by him in Tennessee as guardian of Meadows. (Story’s Conflict of Laws, page 849.)</p> <p>The appointment of McDonald as guardian in Kentucky conferred upon him no authority to receive estate of the ward in Tennessee; and the sureties in the guardian’s bond cannot be held responsible therefor. {Story's Conflict of Laws quoted in 12 B. Mon., 324; 2 Kent's Com., 227, note b.; 1 Johnson's Ch'y Rep., 153-5; 4 LitL, 4; 4 Dana, 629; 2 Boumer's Inst., 57; 10 Alabama Rep., 589; 1 Bay's Rep., 13; 0 Ohio Rep., 504.)</p> <p>That the estate was received by the guardian in Tennessee eannot avail either himself or his sureties. It is the duty of the guardian to take care of .and account for his ward’s money, however derived. (3 Dana, 223.) It was too late for McDonald to plead to the jurisdiction after he filed his answer in June, 1851. (1 /. J. Mar., 476.)</p>

<p>CASE 32 — IN EQUITY</p> <p>APPEAL FROM WASHINGTON CIRCUIT COURT.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

CASE 33 — PETITION EQUITY APPEAL FROM KNOX CIRCUIT COURT. Tbe facts appear in tbe opinion of tbe court. 1. Tbe estate of the testator is not responsible to the vendee of the slaves recovered by the widow for more than the price paid for them and interest — -the vendee to account fo\ the reasonable hires. 2. The devise of $5,000, after the death of the widow, to Alexander White, &c., does not take effect upon the renunciation of the will by the widow, but only after her death.

CASE 34 — PETITION ORDINARY ArrEAL FROM BARREN CIRCUIT COURT. Tbe facts appear in the opinion of the court. 1. The circuit court should have allowed the demand set up by the defendant against the plaintiff. 2. The lapse of time — more than twenty-seven years — operates as a complete defense to the action.

CASE 35 — PETITION EQUITY APPEAL FROM HENRY CIRCUIT COURT. The facts sufficiently appear in the opinion of the court. 1. The appellee having failed, upon inquiry, at the time of the application for insurance, to disclose the true condition of the title of the property insured, the policy is not binding upon the company, even as a general policy.

<p>CASE 36</p> <p>AHPEAI, FROM MORGAN CIRCUIT COURT.</p> <p>The facts appear in the opinion of the court.</p> <p>The action was not revived as required by the Civil Code. The judgment is therefore void, and the execution and replevin bond should have been quashed.</p> <p>1. Where an order of revivor is made by consent, no service is necessary. (Civil Code, section 562.) The order can be made at the instance of either party. (Ib., section 561.) As the record does not show on whose motion the order was made, or that there was any objection to it or reason shown against the revivor, the presumption should be indulged which would sustain the judgment. (1 Bibb, 309; 3 Mar., 491; 4 Dana, 336; 5 Dana, 533.)</p> <p>2. Rendering judgment before service of the order of revi-vor is but a clerical misprision, and this court will not inquire into it until an ineffectual motion has been made to correct it in the circuit court. (Hardin, 305 ; 18 B. Mon., 177; Civil Code, sec. 577.) The motion to quash the execution and replevin bond was not a motion to correct the clerical misprision.</p> <p>3. The judgment was only voidable, and no motion to correct it having been made in the court below, it was the proper foundation for the execution and replevin bond, neither of which could be quashed on account of the judgment being voidable.</p>

CASE 37 — PETITIONS FOB MANDAMUS APPEAL PROM JEFFERSON CIRCDIT COURT. The facts sufficiently appear in the opinion of the court. 1. Yoters cannot be disfranchised, nor candidates defeated, by the failure of the clerk of the election to sign each page of the poll book.

<p>CASE 38 — PETITION ORDINARY</p> <p>APPEAL FROM MONTGOMERY CIRCUIT COURT.</p> <p>¿v .'.Loqueyi sued tbe Mount Sterling and Jeffersonville Turnpike Road Company and recovered judgment for $279 99 for work áhcL'iábor alleged to have been done for the company by himself and others, who, he alleged, had transferred their claims to him. On the trial, the effort of the plaintiff was to show the transfer oi the claims to him, and that the work was done under the employment of the president of the company, and his promise to pay therefor. This appeal is prosecuted by the-company.</p> <p>1. The engagement'by the president of the turnpike company to pay the wages of Looney and his assignors, created no liability on the company. (See Charter, Sess. Acts., 1849-50, pages 418, 423; 6 M. & W., 815; I Marsh., 105; 3 Ib., 1; 3 /. J. Mar., 205; 7 lb., 85; 1 B. Mon., 14; 8 Gill and Johnson, 248.) The authority of the president must be shown. (1 Nott ■and McCord, 231; 7 Granch, 305; 14 Peters, 19; 1 B. Mon., : 14; 3 J. J. Mar., and 7 J. J. Mar., supra; Angelí and Ames on' Corporations; Wiclclife vs. City of Maysville,MS. Opinion,present term.) The verdict was contrary to the evidence; and the court erred in admitting incompetent evidence.</p> <p>The evidence introduced by appellee was competent. The president had power to employ appellee and his assignors to work on the road, without a special license from the company. (18 B. Mon., 48; 5 B. Mon., 130.) Appellants have obtained the benefit of the work, and should pay for it. The verdict and judgment are not erroneous.</p>

CASE 39 ANPEAL FROM FI.EMING CIRCUIT COURT. This appeal is prosecuted from a judgment of the circuit court, affirming the judgment of the county court confirming and ordering to record a settlement made with Wm. H. Graddy as administrator of Osborne Belt, deceased. 1. The account paid F. Belt should have been verified by the written affidavit of the claimant. (Rev. Stat., 340, secs. 35 and 37 ; Overly vs. Overly, ante, 117.) 2.

<p>CASE 40 — PETITION ORDINARY</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>The facts appear in the opinion of the court.</p> <p>1. The failure of the answer to controvert the value of the freight did not dispense with the necessity of proving it. ( Civil Code, sec. 153; 14 B. Mon., 393; 18 lb., 229.)</p> <p>2. Where there is a well established uniform usage or custom for a carrier by water to land goods on a public wharf, or to leave them at a particular place of deposit for the consignee, without further notice to him, such usage or custom will govern. (Story on Bailments, sec. 543; 17 Wendell, 305; 16 Vermont Rep., 52; 18 I’b., 131; 23 lb., 186; 4 T. R., 581; 1 Rawle, 203; 8 Wheaton, 505 ; 10 Met., 472 ; 1 Bailey, 553.) The facts in this case should have been left for the consideration of the jury.</p> <p>There is no proof to show .that the freight was delivered to the consignees. There is no error in the instruction of the court.</p>

<p>No lien exists between vendor and vendee where a deed of conveyance has been executed, and no statement is made therein as to what part of the consideration remains unpaid. The making of the deed, without such statement, operates as a waiver of the vendor’s lien. (Rev. Stat., page 543, sec. 26.)</p>

<p>CASE 42 — PETITION ORDINARY</p> <p>APPEAL FROM MONTGOMERY CIRCUIT COURT.</p> <p>The facts appear in the opinion of the court.</p> <p>The court of appeals has jurisdiction of this appeal, the “value in controversy” being over fifty dollars. (Sess. Acts, 1857-8,page 35.)</p> <p>The appellee insists that the court of appeals has no jurisdiction of this appeal.</p>

CASE 43 — PETITION ORDINARY APPEAL FROM UNION CIRCUIT COURT. The facts sufficiently appear in the opinion of the court. The petition in the name of A. J. Morrison & Co. is good upon demurrer. The sum to be paid was $625 45, or current exchange to that value, and judgment should have been rendered for that sum.

<p>CASE 44 — PETITION ORDINARY</p> <p>APPEAL PROM MONTGOMERY CIRCUIT COURT.</p> <p>The facts appear in the opinion of the court.</p> <p>Neither the warranty, nor the unsoundness of the slaves, is established by the evidence. The court erred in leaving it to the jury to determine whether facts alleged in the defendant’s answer were material, and whether they were controverted. It also erred in refusing appellant the right to close the argument to the jury.</p> <p>There is a warranty of title as well as of soundness, and proof of unsoundness of the slaves. The instructions given by the court are correct. The verdict is good, and judgment right. (Civil Code, secs. 356, 359.) The burden of proof was on the defendant, and he had the right to conclude the argument. {Civil Code, sub-div. 6 of sec. 347.) Right of action upon a warranty in a bill of sale not assignable. (2 Litt., 167-8.)</p> <p>Tipton had no title to the slaves, and the note sued on was executed without any legal consideration. The law implies a covenant of title, and where the vendor has no title it is an immediate breach of the implied contract. (2 Mar., 219; 4 B. Mon., 202; 13 lb., 475.) The slaves were unsound, and of no value at the time of the sale, and were known to be so by .Tipton, which fact he fraudulently concealed from Triplett. The law of the case was given as favorably to Tipton as he was entitled to have it. The verdict of the j ury is clearly in accordance with the justice and right of the case, and it should be permitted to stand. (6 Mon., 61; 3 /. J. Mar., 717 ; 6 Dana, 214; 1 B. Mon., 46; 12 lb., 54; Burr. Rep., 936.)</p>

<p>1. The drawer and the two indorsers of a bill of exchange, sued jointly by the holder, answered severally, and each denied the execution of the bill. Upon the trial each indorser was offered by his co-defendants as a witness to prove facts conducing to sustain their defense. Held — That the indorsers were competent witnesses.</p> <p>2. The court, after reviewing the facts of the case, say that the rejection of the evidence offered, although erroneous, was not prejudicial to the appellant, (the drawer,) because of the existence of other evidence against which the rejected evidence could not have prevailed; and refuse to reverse the judgment on that account.</p> <p>3. It is not error for a court to refuse to instruct the jury “ that they must believe all that was said by the defendants in the conversations proved by the plaintiff.” Whether the jury credited the statements of the defendants or not, was in their discretion.</p> <p>4. A cross-appeal is only allowed in behalf of the appellee against the appellant, and not against a co-appellee.</p>

CASE 46 — PETITION EQUITY APPEAL FROM BOURBON CIRCUIT COURT. The facts appear in the opinion of the court. Appellants held the property under an executed contract made upon sufficient consideration, which, although verbal, was valid, as it might have terminated within a year; and they cannot be charged with the rents and profits as an advancement. (4 Dana, 137; 8 B. Mon., 423; 9 lb., 370.) The case in 5 Dana, ■ 526, is not parallel to this.

<p>The -words “ writ of execution,” as used in Revised Statutes, chap. 36, art. 18, see. 2, page 329, embrace the fieri facias issued upon a judgment recovered by ordinary proceedings under the Civil Code; and a sheriff, who fails to return such fi. fa. by the return day thereof, is liable, on motion, to the fine imposed by that section for such failure.</p>

CASE 48 APPEAL FROM MONTGOMERY COUNTY COURT. The certificate of emancipation was granted in January, 1858. The remaining facts sufficiently appear in the opinion of the court. Maria’s right to freedom did not vest until she attained to the age of thirty years. Upon attaining that age she was invested with that light, subject to the conditions which the Revised Statutes, the law then in force, imposed upon her.

<p>CASE 49 — PETITION EQUITY</p> <p>APPEAL FROM PENDLETON CIRCUIT COURT.</p> <p>This appeal is prosecuted to reverse a judgment rendered by the Pendleton circuit court dismissing the petition of the plaintiffs, in which they sought to recover four lots of ground in the town of Falmouth, in Pendleton county.</p> <p>1. The possession of Mrs. Naylor cannot be deemed adverse unless she had clearly and distinctly claimed to hold adversely, accompanied with the claim of the fee. (Angelí on Limitations, secs. 384, 385,pp. 463, 466; Paine Circuit Court R., 457, 465 ; 7 Wheaton, 59; 18 B. Mon., 855; 2 Bouvier,s Inst., p. 484.)</p> <p>2. The plaintiffs, as half brothers of Sidney H. Monroe the elder, are entitled to the lots as the heirs at law of Sidney H. Monroe the younger. (Act of 1796, sec. 5, 1 Slat. Law, 563; 1 Monroe, 75; 18 B. Mon., 855.)</p> <p>As the petition asks nothing for the plaintiffs but a partition against an adverse title and possession — without their title having first been established in the appropriate action — they cannot complain that their petition was dismissed without prejudice. The appellees contend that the bar by the statute of limitations and an adverse possession is sufficiently made out in evidence, and that the petition should have been dismissed absolutely.</p> <p>There was a notorious adverse holding for more than twenty years, and appellants cannot complain that their petition was dismissed. As to the want of power of the trustees to convey at the time the deed was made, see Trustees of Falmouth vs. Horter, (4 Lett., 119.)</p>

CASE 50 — PETITION ORDINARY ArrEAL FROM ADAIR CIRCUIT COURT. Judgment was rendered in favor of Harris against Trabue’s executor for $244 12, from which the executor prosecutes this appeal.

CASE 51 — PETITION EQUITY APrEAL FKOM CAMPBELL CIKCDIT COUKT. The facts appear in the opinion of the court. This was a mock sale made on the premises, only two persons present, and the guardian ad litem the purchaser at less than the land was worth. The doctrine as to trustees and other fiduciaries becoming purchasers applies to a guardian ad litem — he cannot be a purchaser.

CASE 52 — PETITION ORDINARY APPEAL EROM HENDERSON CIRCUIT COURT. The facts appear in the opinion of the court.

<p>1. The certificate of the officer before whom arbitrators were sworn, which was returned with the award, stated that they personally appeared and “ made oath according to law that they would faithfully discharge the duty devolved upon them as arbitrators and umpire.” Held — That the oath, as administered, was sufficient.</p> <p>. 2. Mere formal objections to awards should be disregarded. The settlement of controversies by arbitration is favored by law, and should be encouraged by sustaining awards, notwithstanding they may be liable to technical and formal objections, which do not affect the substantial rights of the parties.</p>

CASE 54 APPEAL FROM CAMPBELL CIRCUIT COURT: The facts appear in the opinion of the court. The note should have been presented for payment within the usual banking hours. (Story on Bills of Exchange, see. 328.) The plaintiffs knew, or had reason to believe, that the note in. question was left with Manchester for collection, and that he was not the owner thereof.

CASE 55 — PETITION EQUITY APPEAL FROM UNION EQUITY AND CRIMINAL COURT. The facts appear in the opinion of the court. Whether appellant be the legitimate son of Nancy Allen, or a bastard, he is entitled, through his mother, to a share in Ramsey’s estate. {Rev. Stat., sec. 5, p. 280; sec. 18, Act of 1796, 1 Stat. Law, 565; Act of 1840, 3 Stat. Law, 211.) The question of his legitimacy cannot be urged against him when he is claiming property under and through his mother.

<p>CASE 56 — PETITION ORDINARY</p> <p>APPEAL FROM GRANT CIRCUIT COURT.</p> <p>The facts appear in the opinion of the court.</p> <p>In the absence of letters testamentary, or an averment that any had been granted, and the covenant required by the act of 1854 not having been executed, the court erred in rendering judgment. That statute is imperative. (Sess. Acts, 1853-4, y». 19.) Interest upon the costs of the suit in Yirginia should not have been given. Upon the evidence in the cause, the judgment should have been for the defendant. He is not precluded by the judgment in Yirginia from setting up the defense made by him in this action.</p> <p>That the debt sued on was in the name of the executor did not dispense with the necessity of filing the order appointing him executor. The requisition of the act of 1854, requiring the execution of bond with surety to pay debts, &c., is imperative. Judgment cannot be rendered without it. (Sess. Acts, 1853 — 4, p. 19.)</p> <p>The copies of the Virginia records are properly authenticated. (Revised Statutes, sec. 18, p. 313.) Those records show that plaintiff was executor, and no other evidence of that fact was necessary, the judgment sued on being in his favor. The defense of payment or set-off is not established; and, moreover, the defendant is precluded by the Yirginia judgments from making such defense.</p>

<p>CASE 57 — PETITION ORDINARY</p> <p>ATPEAL FROM FAYETTE CIRCUIT COURT.</p> <p>The facts appear in the opinion of the court.</p> <p>The return of nulla bona is conclusive evidence of the insolvency of the obligor; and the assignee has his recourse immediately upon the assignor. (4 /. J. Mar., 304, 306; 2 Bibb, 35.) It was not the duty of the assignee to pursue the trust property before proceeding against the assignor. (3 B. Mon., 122.)</p> <p>The assignee must pursue the trust property, of which he had knowledge, before he can have his remedy against the assignor. (1 Bibb, 542; 3 B. Mon., 121; 5 lb., 252; 1 Dana, 184; 5 B. Mon., 240; 7 lb., 115.) Land cannot be levied on or sold under execution from a quarterly court. (Civil Code, sec. 845.) The plantiff might have obtained execution from the circuit court clerk’s office. (lb., sec. 846.) He should have exhausted all his direct legal remedies against the obligor. (2 Mar., 197; 1 Bibb, 542.) The return of nulla bona by the constable is no evidence of insolvency.</p>

<p>CASE 58 — PETITION ORDINARY</p> <p>APPEAL FROM FAYETTE CIRCUIT COURT.</p> <p>The facts appear in the opinion of the court.</p> <p>The bill was accepted payable generally, and in that condition indorsed by Rogers, an accommodation indorser. The interlineation on the bill afterwards, without the knowledge of the indorser, designating a particular place of payment, is a material alteration, and discharges him. (Lisle vs. Rogers, 18 B. Mon., 537; Bank of America vs. Woodworth, 19 Johnson, 391.) The bill sued on, and the payments by Rogers, were made in ignorance of the alteration of the original bill, and the consequent release of himself. The plaintiff could not, therefore, recover, but Rogers should have judgment for his payments. (3 B. Mon., 510.)</p> <p>As there was no place of payment fixed, the indorsement by Rogers conferred authority on the drawee to fill up the blank acceptance, and designate a i*easonable place of payment. There was no alteration ; there was no place of payment to be altered or changed. The subsequent acts of Rogers preclude the defense now set up, and operate as a waiver.</p> <p>Authorities cited: 18 B. Mon., 537; 14 B. Mon., 352; 18 Johnson, 315; 19 lb., 391; Chitty on Bills, p. 100; 17 Wendell, 238 ; 10 lb., 93; 7 Coioen, 336; Edwards on Bills, p. 95.</p>

<p>CASE 59 — PETITION EQUITY</p> <p>APPEAL FROM JESSAMINE CIRCUIT COURT.</p> <p>In this proceeding in equity an attachment was sued out against appellant as a non-resident, and upon constructive service, without appearance, judgment was rendered for the plaintiffs, from which this appeal is prosecuted. The judgment provided that the plaintiffs might receive the money “when they give bond in the clerk’s office of this court as required by law, and the court retains power over the judgment, and the papers are filed away.” The remaining facts appear in the opinion of the court.</p> <p>There was no affidavit as required by Civil Code, section 222, and the statements of the petition are not sufficient to authorize the attachment to issue. The bond required by section 440 of the Code should have been executed before judgment; that the judgment provides for the execution of a bond before the clerk at a subséquent time, does not supply the defect. The payee of the note sued on is a necessary party. The plaintiffs should establish by proof their right to the note — mere possession is not sufficient. As against a defendant constructively summoned, and who has not appeared, the statements of,the petition must be proved. ( Civil Code, sec. 439.)</p> <p>The fact that appellees were the holders of the note sued on, which was filed with their petition, dispensed with the necessity of proof on their part of the appellant’s liability to them thereon, in the absence of an answer controverting it. The statements of the petition warranted the issuing of the attachment; no separate affidavit was necessary. (17 B. Mon., 324.) Bond was given by appellees prior to their receiving the money under the judgment — the court having adjusted the rights of the parties as required by section 442 of the Code. The court still retains power over the judgment, the order is not final, and the appeal should be dismissed. (Civil Code, sec. 15.) Appellant made no motion in the circuit court to correct the judgment. {Ib-, sec. 903.)</p>

<p>CASE 60 — PETITION EQUITY</p> <p>APPEAL FKOII SHELBY CIIICBIT COÜKT.</p> <p>The facts appear in the opinion of the court.</p> <p>A Us pendens was created by the filing of the original petition and service of process thereon; and, as the object of the action, from its commencement until its conclusion, was to subject to sale the property in the pleadings mentioned for the payment of the debt due to the plaintiffs, the alienation of the property during the pendency of the action was unauthorized, and the purchaser is affected in the same manner as if he had actual notice of the proceeding, and in every respect occupies the attitude of a pendente lite purchaser. The grounds relied upon in the original petition for injunction and attachment are sufficient. Authorities cited in argument: Story's Equity, secs. 905-7 — 8, 53 to 58; 12 B. Mon., 501; 7 lb., 376; 2 Bibb, 484; 4 lb., 340-499; 7 Mon., 116; 2 Dana, 480; 3 B. Mon., 116; 7 lb., 314; Bouvier’s Law Dictionary, 79; 1 Vern., 318, 459; 8 Dana, 74; 11 B. Mon., 310; 9 Dana, 198-9; 2 B. Mon., 470, 486; 6 lb., 441;!/./. Mar., 306; 1 Litt., 308; Lilt. Sel. Cases, 279; 3 Mon., 128; 5 J. J. Mar., 148; 9 B. Mon., 231; 5 lb., 87; Civil Code, sections 156 to 166.</p> <p>The grounds for the attachment relied upon in the original petition are not sufficient. (Civil Code, sections 221,222.) Nor is any ground established by the proof. McHenry’s purchase having been made prior to the filing of the amended petition, his title is not affected by the lis pendens created by it. The petition was properly dismissed.</p>

CASE 61 — PETITION ORDINARY ArPEAL FROM MONTGOMERY CIRCUIT COURT. The facts appear in the opinion of the court. The notice was not sufficient to charge Bondurant. (3 Lit-tell, 498; Story on Bills of Exchange, pp. 349 and note 3, 350, and 366; 3 Kent, p. 107; Chitty on Bills, 522 to 527.; Story on Bills, 501-2-3-4-5; 3 Car. & P., 250; 2 Campb., 210; 2 Hill’s Rep., 112.) The notice deposited in the post-office at Mt. Sterling, was sufficient to charge Bondurant.

CASE 62 — PETITION ORDINARY APPEAL PROM KENTON CIKOUIT COURT. Tousey, as assignee of Williams, sued Robinson upon the note mentioned in the opinion. The law and facts wei'e submitted to the court, and the circuit court having allowed the claim for usury setup by the defendant, the plaintiff prosecutes this appeal. The remaining facts appear in the opinion of the court.

<p>1. Where a mortgagee institutes an action to recover possession of the mortgaged property before any forfeiture of the mortgage has occurred, and the forfeiture thereof occurs during the pendency of his action, he may, under section 162 of the Civil Code, amend his petition and set up the forfeiture to enable him to maintain the action. The section, supra, applies to ordinary as well as equitable proceedings.</p> <p>2. A mortgagee may maintain an action by ordinary proceedings for the recovery of the mortgaged property upon a forfeiture of the mortgage ; and the mortgagor cannot prevent a recovery by alleging and showing that the mortgage was made in fraud of creditors. (Bibb vs. Bibb, 17 B. Mon., 307.)</p> <p>3. A court of equity will not lend its aid to relieve a mortgagor from the consequences of his own fraudulent act, nor will it aid the mortgagee in securing him in the enjoyment of the property fraudulently mortgaged, whore its interposition is necessary for that purpose. The mortgagee is left to his legal remedies; and is without any remedy, either legal or equitable, so far as the contract is executory.</p>

<p>1. G. T. conveyed by deed to his son, G. C T., a tract of land with the following provision : “ To be held, occupied, used, and enjoyed by him (G. C. T.) during his life, and he is further, if he deems it proper, during his life, to transfer and convey to any one or more of his posterity the wholeor any part or parts of said tract of land, at his pleasure, and at the death of said G. C. T., the said land, in the whole or in parts, is to be vested in his posterity, or such of them, one or more, as he may select, choose, and direct, by his last will, should he not have done it in his lifetime by deeds. And the said G. C. T. is also at liberty, and is hereby vested with the right, if he thinks proper so to do by his last will, to vest in any widow whom he may leave, an estate in said land, or any part thereof, not to extend to a greater or better estate than during her remaining his widow, but the same is never to be the dower of his widow, or any part thereof, or subject, under any circumstances, to the claim of dower by said widow.” G. G. T. executed the power conferred by the deed by devising the land to his children, leaving no part of it to his wife during widowhood. The widow set up claim to dower in the land. Held — That G. C. T. was entitled to a life estate only in •the land, and that the widow was not entitled to dower therein.</p> <p>2. Slaves were conveyed by deed to the use of the grantee for life, and then to the children of the grantee, with power to him to divide them amongst his children in such manner as he in his discretion might choose, by will or other instrument, and to sell or exchange the slaves, without responsibility to his children, but not to give them except to his posterity, nor to emancipate them; with power also to loan to any widow he might leave any of said slaves for a term not to exceed her widowhood, subject at the expiration of the loan to such''disposition of the slaves as the grantee might direct among his posterity — the widow in no event to have dower in the slaves. The grantee executed the power by devising the slaves to his children, and made no loan to his wife. The widow sues for dower in the slaves. Held — That the power of disposition conferred by the deed upon the grantee was a special or particular, and not a general power; that the grantee was entitled to but a life estate in the slaves, and his widow was not entitled to dower in them.</p> <p>3. In such case, if the power conferred by the deed, supra, had been general, and had authorized the grantee to dispose of the property at his discretion, still the life estate to which the power was annexed would not have been thereby enlarged into a fee-simple estate. (Sugden on Powers, 99, 337.)</p>