Volume 59 — Kentucky Reports

CASE 1 — INDICTMENT— APPEAL PROM ESTILL CIRCUIT COURT. ■ After the jury were sworn, and had heard a portion of the testimony, they were adjourned until the next morning, when one of them failed to attend; “ and,” as the record recites, “by consent of the attorney for the Commonwealth and the prisoner, they agreeing that the remaining eleven jurors might try this cause,” &c. The verdict was : “ We of the jury find the defendant guilty of stabbing in sudden heat and passion,…

<p>1. The city council of Lexington is empowered by the city charter to pass any ordinance for the government of the city not contrary to the constitution of this State or of the United States. An ordinance of the council prohibiting tavern-keepers from selling spirituous liquors on Sunday, and inflicting a fine for a breach of the ordinance — so far as it applies to tavern-keepers licensed after the passage of the ordinance — is valid. Its validity as to those licensed prior to Its passage no,t decided.</p> <p>2. Selling liquor on Sunday within the city limits constitutes the offense prohibited by the ordinance. The quantity sold, as well as the place where it was drunk, are immaterial, and it is not necessary that the warrant should specify either. An averment that the offense was committed on a particular day of the month (which was not Sunday) is surplusage, and does not affect the validity of the warrant.</p> <p>3. Evidence that the defendant had sold liquor on a Sunday subsequent to the date of the warrant was inadmissible; but the error in admitting it was cured by an instruction to the jury that unless they believed, from thd evidence, that the defendant sold liquor on Sunday within the time covered by the warrant, they must acquit him. Proof of a selling on any Sunday prior to the issuing of the warrant, within the time prescribed for instituting a prosecution for the punishment of the offense, was admissible.</p> <p>4. A judgment cannot be reversed for an error in overruling a demurrer to a warrant, in a prosecution for the violation of a city ordinance. (Grim,. Code, sec. 349; lb., title 7.)</p>

<p>1. It is well settled that where provisos and exceptions are contained in distinct clauses of a statute defining an offense, it is not necessary to aver in the indictment that the defendant does not come within the exceptions, or to negative the provisos it contains. Nor is it necessary to allege that he is not within such provisos, even though the purview should expressly notice them; as by saying that none shall do the act prohibited, except in the cases thereinafter excepted. These are properly matters of defense. (Wharton’s Criminal Law, 190; 2 Yerger, 233; 7 JB. Monroe, 1.)</p> <p>2. An indictment, under the act of March, 1854, prohibiting the carrying of concealed deadly weapons, which distinctly charges that the instrument carried by the defendant, was a deadly weapon, and carried concealed, is sufficient to bring the case within the act supra, without stating that the defendant did not come within the exceptions mentioned in the second section of the act.</p>

<p>CASE 4 — INDICTMENT—</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>cited Wharton’s Crim. Law, 746.</p> <p>cited 1 Bibb, 294; Lb., 346; 1 Mon., 3; 6 Dana, 316; lb.,22Q; Wharton’s Am. Crim. Law, 2211, 2213, 2263; 2 Bishop’s Crim. Law, 864; 26 Maine, 69 ; 2 Hill S. Car., 290 ; 1 Binney, 544; 1 Smedes (§• Marshall, 149, 151; 33 Eng. Com. Lavo, 54; Revised Statutes, 182; 4 McLean’s Rep., 113; 2 Haywood, 56; 2 Hill’s S. Car. Rep., 290; 1 Carter, 232; 12 Metcalf, 229; 12 Mass., 276; Crim Code, secs. 136, 330; Wharton’s Precedents of Indict., pages 577, 578; 8 Gratt., 629 ; 7 Humph., 250; 21 Eng. Com. Law, 392.</p>

CASE 5 — INDICTMENT— APrEAL FROM KENTON CIRCUIT COURT. cited section 3 of Act of. February 9, 1858, imposing a tax upon billiard tables. cited chapter 350, Session Acts 1857-8, p. 43; lb., p. 34, chapter 274; Russell on Crimes, 455, 322-3. cited Act of February 9, 1858, Session Acts, vol. 1, p. 34.

<p>1. The right of a party'to contradict his own witness, by showing that “he has made statements different from his present testimony,” (Civil Code, sec. 660,) does not depend upon the ability of the party to prove, in addition, that the testimony of the witness is untrue. But he may contradict him first by other evidence, and secondly, by showing that he has made statements different from his present testimony. Either or both of these modes may be adopted.</p> <p>2. A party introduces a witness to prove certain facts, but the witness deposes that they did not transpire. He cannot, by way of discrediting the witness, prove by others that the witness had on another occasion, in their presence, stated the facts in question — in effect to show that his witness had stated out of court facts which he failed to prove in court.</p> <p>3. Where a witness does not state any fact prejudicial to the party calling him, but only fails to prove facts supposed to be beneficial to the party, it is not a case within the reason or policy of the rule which allows the witness to be contradicted by evidence that he had previously stated the same facts to others.</p> <p>4. To authorize the reversal of a judgment of conviction for felony, upon the ground of the rejection of evidence offered on the part of the defendant, it is not sufficient that the rejected evidence be shown to have been merely pertinent or relevant, or technically admissible — it must be important for the defendant, in view of the whole case as presented.</p> <p>5. See the opinion for a detail of the circumstances under which, though rejected evidence offered by the defendant in a criminal case be conceded to be admissible, it was held not important, and its rejection not prejudicial to him nor ground for reversal</p> <p>6. The opinions of experts upon questions of art or science, to be admissible as evidence, must always be predicated upon and relate to the facts established by the proof in the case. Mere professional opinions upon abstract questions of science, having no proper relation to the facts upon which the jury are to pass, tend to lead their minds away from the true and real points of inquiry, and should therefore always be excluded. [See the opinion for a state of case illustrating the principle.]</p>

<p>CASE 7 — INDICTMENT—</p> <p>APPEAL FROM OWEN CIRCUIT COURT.</p> <p>cited 1 Greenleaf , 305; 2 East P. C., 657 ; lb,, 658; 1 Leach Cr. Cas,, 430 ; 1 Greenleaf, 289 and note 4.</p> <p>cited Crim, Code, sec. 329; Wharton's Amor. Grim. Law, sec, 695; 1 Greenleaf Ev,, sec, 231»</p> <p>cited Burrill Cir. Ev., pp. 138, 179,192-3-4; Wharton’s Grim. Law, 3d ed.,pp. 319, 344-5-6-7; Wills on Cir. Ev.,pp. 39, 211; Gommonioealth vs. Webster, Mass. Rep.</p>

<p>An indictment charges that “ the defendant did pay, pass, and utter to W. C. one forged and counterfeit bank bill, of the denomination of three dollars, on the Merchants’ Bank of Massachusetts, knowing it to be forged and counterfeit at the time, $c.;” but fails to allege that the bank, on which the bill purported to be, was a bank incorporated by law. Held — That the omission is fatal. In order to conviction, it is indispensably necessary that such fact be averred and proved.</p>

<p>CASE 9 —</p> <p>APPEAL FROM OLDHAM CIRCUIT COURT.</p> <p>cited 1 Litt., 40; 7 Dana, 168; 2 B. Mon., 526 ; Civil Code, secs. 16, 24,123, 850, 875 ; Rev. Stat., sec. 17, p. 205; lb., sec. 3, p. 231; 18 B. Mon., 225; Ford, fyc., vs. Jett, MS. opinion, September, 1855; Campbell vs.. Simmons, MS. opinion, June, 1857; 4 Mon., 413; 5 Dana, 58-9.</p> <p>cited Civil Code, sec. 851.</p> <p>An appeal was taken to the circuit court from a judgment of the quarterly court, and the judgment of the circuit court is ■now appealed from.</p>

<p>CASE 10 — PETITION EQUITY —</p> <p>ArPEAL FROM MADISON CIRCUIT CODRT.</p> <p>cited article 2, title Landlord and Tenant, Rev. Statutes, sections 4, 11, and 14 to 21, inclusive ; 16 B. Mon., 398.</p> <p>cited Revised Statutes, 441 ; 16 B. Mon., 398.</p>

CASE 11 — MOTION— REPEAL FROM ESTILL CIRCUIT COURT. This motion was instituted in the Estill quarterly court, from whose judgment the defendants appealed to the circuit court, and from the judgment of the latter court they prosecute this appeal. cited Revised Statutes, p. 187, sec, 2, art, 4. cited 4 Mon., 492; 3 J. J. Mar., 527; 1 B. Mon , 323 ; Rev. Statutes, p. 329, sec, 4; Session Acts, 1855-6, p. 45. cited Rev. Statutes, p. 329,sec. 4.

CASE 12 — APPEAL FROM MERCER CIRCUIT COURT. This action was brought by Taylor and wife against Kyle, administrator, with the will annexed of Buckner Miller, deceased, to recover two legacies of $500 each, bequeathed by him to Mrs. Taylor, (then Jane B. Miller) his granddaughter.

<p>CASE 13 — PETITION ORDINARY —</p> <p>APPEAL FROM ANDERSON CIRCUIT COURT.</p> <p>cited 3 Dana, 221-2.</p> <p>cited 3 Mar., 299 ; Rev. Stat., 466; 1Í B. Mon., 62.</p>

<p>A sale of property made by a debtor in contemplation of insolvency, and with the design to prefer some of his creditors to the exclusion of others, operates of itself as an assignment and transfer of all his property and effects for the benefit of all his creditors. The creditors then become invested with equal rights in the property of the debtor, and no one of them can acquire any advantage over the others by suing out an attachment against the estate of the debtor, where some of the creditors seek the enforcement of their rights by the appropriate action, brought within six months after the sale, although subsequently to the issuing and levy of the attachment.</p>

<p>CASE. 15 — PETITION FOR MANDAMUS —</p> <p>APPEAL EHOM MASÓN CIHCUIT COUKT.</p> <p>cited, Tapping on Mandamus, chap. 3, page 74, Amer. ed., and notes; lb. pages 32 and 85, and notes ; 5 Texas Rep., 471; 2 Watts Sf Serg., 416; 1 Halst., 179; 18 B. Mon., 426; lb., 852; Tapping on Mandamus, pages 60, 422, 460; Bacon’s Ab., tit. Mandamus, page 520; Morehead’s Practice, page 253, and notes ; 3 Blackstone, 113 ; Angelí Sf Ames on Corporations, pages 817, 818; Pierce on Amer. É. R.'Law,page 108, and note; Angelí Sf Ames on Corporations, page 275; 4 McLean, C. C. R., pages 8, 387; 8 Gill Johns., 248; 1 Maryland CKy Dec., 407, 442, 542; 24 Conn., 159; 24 Barb., 199; Angelí Sf Ames, pp. 273, 274, 275, 276; 14 Eng. L. Sf E. R., 57; 39 lb., 28; 11 Humphreys, 1; 13 Peters, 587; Angelí Sf Ames, pp., 268, 267, 327, 307, 291, sec. 270; lb., sec. 256 ; lb., page 284, sec. 265; 5 Eng. L. E. R., 503 ; 2 Cranch, 166 to 169 ; 3 Bland CKy Rep., 606 ; 8 Serg. Sf Rawle, 521, 522; 2 Cranch, 127 ; 24 Barb., 227, 228, 229,230, 231; 13 Barb., 570; 13 B. Mon., 86; 1 Payne’s Rep., 400 ; 2 Marsh., 101; 4 B. Mon:, 120; 5 Barb., 649; 3 Peters, 407; Pierce R. R. L., 371; Com- _ monwealth vs. Com’rs of Alleghany county, Amer. Law Reg., Dec., 1858; 3 Casey Rep., 13; 8 Barb., 233; 5 lb., 9; 13 B. Mon., 84, 85,87, 88; Sess. Acts, 1849-50, pages 304-5; 2 Sess. Acts, 1850-1, page 195; 9 Dana, 34, 296; 3 Marsh., 25; 5 Dana, 138; 7 B. Mon., 162, et seq.; 12 Ohio Rep., 364; 5 Denio, 567; 3 Barb., 223; 18 B. Mon., 421; Hardin, 218; 3 Marsh., 163 ; 3 J.J.Mar., 548; 2 Bibb, 425 ; 5 Mon., 120 ; Rev. Stat., 193, sec. 6; Constitution Ky., aid. 2, sec. 40; lb., art. 2, sec. 36; 1 J. J. Mar., 566.</p> <p>cited Story on Contracts, sec. 317; 5 Barb., 613; Angelí Sf Ames on Corp.,page 101, sec. Ill; 8 Ohio Rep., 257; 3 lb., 553; 6 B. Mon., 154; Civil Code, sec. 31; Tapping on Mandamus, top page 60, side page 23 , Angelí Sf Ames, sec. 727; Tapping, page 278; lb., top page 85; 5 Texas, .471; 2 Watts Sf Serg., 416; 1 Halst., 179; 18 B. Mon., 848; 3 Chitty’s Blackstone, side pages 111, 372; Bacon’s Ab. Title Mandamus; 24 Mis., 439; 9 Smedes <§• Mar., 77; Story on •Contracts, sec. 667 note; Pr. Dec., 301; Hardin, 305; 5 Mon., 507; 3 Mar., 489; 3 Mon., 80; 6 lb., 538; 2 Cranch, 4, 10, 23, 33, 52, 358, 386; 1 Paine, 400; 12 Wheaton, 64 ; 7 Scott’s N. R., page 835 ; 17 Ohio, 340; Angelí Sf Ames, sec. 291; 2 Cranch, 127 ; 6 Wheaton, 593; 2 Marsh., 101; 11 B. Mon., 143; 17 B. Mon., 355; 1 Marsh., 105; 4 Bibb, 17; 3 Marsh., 2; 5 Lilt., 45; 7 J. J. Mar., 84; 1 Gallis, 150; 1 Paine, 400; 13 B. Mon., 285 ; 2 Bibb, 96,;. I Ham., 10; 4 Wash. G. G., 671; Harper, 101; 7 Wend., 31; 3 lb., 482; 2 Cowcn, 664, 667, 678 ; 7 lb., 462 ; 2 Johns., 109; 5 Barb., 613; 13 Peters, 587; 4 lb., 188-9; 14 lb., 122; 9 Paige, 476; 5 lb., 653, 654; 12 Wheaton, 68; 3 Wend., 300; 9 lb., 392; 3 lb., 583; 7 lb., 34, 276; 20 lb., 392; 2 Cranch, 127; 3 Barn, dy Ad., 10; 2 Myl. dy Craig, 83; 14 Eng. Ch. Rep., 87; 1 Hop. Rep., 26 ; 15 Johns., 389 ; 3 McLean, 102; 4 lb., 8, 9,10 ; Angelí dy Ames, 6th ed., secs. 270, 277-299, 256; 1 Md. Ch. Dec., 407 542; 5 Denio, 567; 7 B. Mon., 132; 3 McLean, 102-3; 8 Barb., 233, et seq.; 3 lb., 223; Hardin, 218; 3 Marsh., 163; 3 J. J. Mar., 548; 2 Bibb, 425; 5 Mon., 120.</p> <p>cited Civil Code, secs. 523, 524, 526; 18 B. Mon., 426; Tapping on Mandamus, side page 5 ; II B. Mon., 145, 154; Morehead dy Brown, 522; 18 B. Mon., 848, 853 ; Tap. on Mandamus, pp., 9, 10, 19, 171, 172, 189, 30, 51, 66, 67, 68, 121, 134, 210, 220, margin; lb., 29 to 281; lb., pages 74, 325, 289, 314, 299, 404, 285, 286, 426, margin; Angelí dy Ames, secs. 101, 234, 699, 712, 697, 698; Morehead's Practice, pp. 252, 237; 9 Md., 83 ; 12 Barb., 220, 222; 3 Bla. Com.,p. 110; 23 Wend., 458; 2 Hill, 45 ; 28 Miss., (6 Cush.,) 38; 8 B. Mon., 648; Opinion of Chief Justice Lowrie and Judge Woodward in Commonwealth, ex relatione Thomas, vs. the Commissioners of Allegheny couhty, Nov. 11, 1858; 18 B. Mon., 13; 16 Johns'., 65; amended charters Feb. 17, 1851, and Feb. 4, 1854; Opinion by Justice Grier in McCoy vs. Washington co., Legal Intelligencer, Dec. 10, 1858; 1 Mon., 175, 188; 17 B. Mon., 48; 4 Pet., 739; 10 Curtis, 348; 13 B. Mon., 1; original charter, 1849 — 50, sec. 28; 1 B. Mon., 14; 36 Maine, 78; 15 III., 336 ; 21 Penn., 131; 9 B. Mon., 526 fib., 330; 2 lb., 176; Withrow, dye., vs. L. <§* N. Railroad Company, MS. Opin. Winter Term, 1855 ; Pierce on Railroad Law, page 115, and notes 2, 3, 4, 6, 7, 8, 9, 10, 11, 12; lb., page 122, note 1; Zabriskie vs. Cleveland, Columbus, and Cincinnati Railroad Company, opinion by Justice McLean.</p> <p>cited Tap. on Mandamus, 289, 10, 12, 18, 19, 21,24, 93; 26 Barb., 250; 1 Wend., 318; 13 Barb., 443; Civil Code, secs. 30, 37; Pettit vs. Perry, MS. Opin., January, 1855; 15 Barb., 375; Thomas vs. Comlrs of Allegheny county, Supreme Court Penn.', McCoy vs. County of Washington, U. S. Dist. Ct. Penn., per Justice Grier; 17 B. Mon., ---; 5 East, 470; 2 Sand., 47; 17 Barb., 468; 1 Smith, 273; 1 Met., 410; amended charter, Feb. 17, 1851, Sess. Acts, 1850-1, page 194; Parson’s Mercantile Law, 122 ; 8 Paige, 527; 1 Smith, 554; Easton vs. January, MS. Opin., June, 1853; Story on Promissory Notes, 196; 1 Adolp. Ellis, 498,504; Story on Bills, 415; Watts Serg., 445 ; Civil Code, sec. 526; 13 B. Mon., 31, 33; 9 lb., 346; lb., 526; 11 lb., 143; 1 Ohio, 95,97, 105; 1 Sneed, 622,627, 637; 21 Penn., 169; 15 Conn., 475; 8 Leigh, 120; 20 Ohio, 622; 9 Humph., 252 ; 27 Miss., 209, 224 ; 8 La. An., 341; 6 Florida, 610 ; 13 111., 516; Pierce on Railroad Law, 507; 21 Ohio, 77 ; -5 Binney, 87, 103; 1 Serg. Rawle, 473 ; 2 Binney, 275; 16 Serg. ¿f Rawle, 317; 20 Penn., 518; 4 Casey, 108; Angelí fy Ames on Corp., chap. Mandamus; Act of 1813, sec. 2, 1 Stat. Law, 522; Civil Code, secs. 523-527; amended charter, Feb. 4, 1854, Sess. Acts, 299 ; 8 B. Mon., 651; 13 lb., 151; 1 T. R., 404 ; 2 B. § A., 646, 648; Bacon’s Ab., tit. Mandamus; 8 Mod., 28; 18 B. Mon., 12 ; Clapp vs. County of Cedar, 5 Iowa Rep.</p>

<p>CASE 16 — PETITION ORDINARY —</p> <p>APPEAL PROM BRACKEN CIRCUIT COURT.</p> <p>cited 14 B. Mon., 86, 87 ; Ib..f 253-4.</p>

<p>The law does not confer upon the clerk of a circuit court any authority to receive money on a replevin bond in his office, and to enter a receipt therefor on the bond.</p>

CASE 18 — PETITION EQUITY — APPEAL PROM MASON CIRCUIT COURT. cited 2 Kent, 799, 800; Story on Agency, secs. 255, 258, 259, 260, 250; 14 B. Mon., 157. cited Rev. Statutes, page 180; lb., sec. 1, art. 9, page 319 ; lb., art. 12, sub-sec. 2 of sec. 1, page 322; lb., sec. 3, art. 18, page 329; 14 B. Mon., 157; 3 Littell, 116, 117; 7 Mon., 354; 5 Mon., 467-8; 4 J. J. Mar., 87; 5 Mon., 393 ; 7 J. J. Mar., 176 ; 2 B. Mon., 335 ; 5 B. Mon., 18 ; 3 Bibb, 248 ; Rev. Statutes, sec. 3,…

<p>A party against whom a proceeding is instituted to compel a restitution of money Shat had been collected on a judgment which was afterwards reversed, can defeat a recovery by making it appear that he has a demand against the claimant (who is a non-resident) fully equal in amount to the sum which ivas collected under the judgment, and which he is called upon to refund.</p>

<p>1. To enable a purchaser to claim a right of way through the lands of his vendor he must show that such a right is indispensably necessary to the enjoyment of the land which has bfeen conveyed to him.</p> <p>2. Where the proprietor of land has a passway through it for his own use, the mete permissive use of it by other persons, even for half a century, does not confer upon them any right to its enjoyment. So long as its use is merely permissive, it confers no right; but the proprietor can prohibit its use, or discontinue it altogether, at his pleasure.</p> <p>3. To create the presumption of a grant of the right of way, the circumstances attending its use must be such as to make it appear that it was established for the benefit of the claimant, or that its use was accompanied by a claim of right, or by such acts as manifested an intention to enjoy it without regard to the wishes of the owner of the land. Thfe use must have been enjoyed under such circumstances as will indicate that it has been claimed as a right, and has not been regarded by the parties merely as a privilege, revocable at the pleasure of the owner of the soil. (15 B. Mon., 100.)</p> <p>4. According to the principles of the common law a right to any incorporeal hereditament may be acquired by length of time. This mode of acquisition is denominated prescription, and is founded on uninterrupted use and enjoyment time out of mini, or, in other words, for such a length of time that the memory of man runneth not to the contrary. Such an enjoyment of the use does not merely create a presumption of a right, but is conclusive evidence of its existence.</p> <p>5. The enjoyment of an incorporeal hereditament for twenty years only furnishes a presumption of a legal title, which maybe confirmed or repelled by the circumstances incident to its use and enjoyment. In such a case the time of enjoyment is used merely byway of evidence to raise the presumption of a grant; and the manner of the enjoyment, i.e., that it was by mere favor, and was not claimed and exercised as a right, may be used as evidence to rebut that presumption.</p> <p>C. A specific execution of general promises by one to establish a passway over his land, where no specific contract was made by him with any person, cannot be had.</p> <p>7. A right of way is an interest in real estate, and a verbal contract that it shall bo granted cannot be enforced, not being obligatory under the statute of frauds.</p> <p>8. Where a passway was opened for the benefit of the plaintiff and others, in pursu ■ anee of a verbal promise to that effect by the owner of the soil, the presumption is that it was used as a matter of right, and if such use had continued for twenty years, it would have been sufficient to have conferred an absolute right to the easement. But as it was suspended before thfe expiration of that period, no presumption of a grant can arise.</p> <p>9. The doctrine is well established that a dedication of real estate to public use may be made by mere verbal declarations, accompanied with such acts as are necessary for that purpose. But to make a valid dedication, an intention to appropriate the right to the general use of the public must exist. When the appropriation is for the use of particular persons only, and made under circumstances which exclude the presumption that it was intended to be for public use, it will not amount to a dedication.</p> <p>10. A private passway cannot be created by dedication; nor can the establishment of a private passway be construed to be a dedication of it to public use.</p> <p>11. Where a way is opened as a private passway, and that fact clearly appears, it cannot be converted into a public highway by the mere use thereof, no matter how long that use may be continued.</p> <p>12. A court of equity can interpose in behalf of a person whose right to the use of a passway, already in existence, has been obstructed ; but it has no jurisdiction in a case where the establishment of a passway is claimed on the mere ground of necessity.</p>

<p>1. The legislature has no power to authorize a deduction from the salary of a circuit judge, during the period for which he was elected, except for neglect of official duty, as authorized by the 13th section of the 8th article of the constitution. (13 B. Mon., 150.)</p> <p>■ 2. The Treasurer has no power to determine when a circuit judge has been guilty of such neglect of official duty as to authorize a deduction from his salary; nor has he the right to refuse payment of the warrant of the Auditor drawn in favor of a circuit judge for a portion of his salary, although the same amount had been paid a pro tem. judge for services rendered during the same period for which the warrant was issued.</p>

<p>1. An attorney who prays and prosecutes an appeal to the court of appeals for a non-resident defendant who has no property in this State, without causing a bond for costs to be executed, is not liable for the costs of the appellees.</p> <p>2. The liability of an attorney for costs can be created only in the inferior court by directing process to issue in an action in which the plaintiff is required to give security for costs, but who has failed to do so; and the inferior court alone has exclusive jurisdiction to enforce such liability.</p>

<p>CASE 23 — PETITION ORDINARY —</p> <p>ArHSAI. FROM UNION CIRCUIT COURT.</p> <p>cited 2 B. Mon., 100; 4 Kent, 117; 6 JacoVs Law Die., 291, title Trespass; 3 Litt., 29 ; 9 Louisiana Rep., 213; 12 B. Mon., 416; Law Lib.,vol. 53, Archbold on Tenancy, side page 85; lb., side page 217, referring to 1 Barn. Sf Adol., 321; 6 B. Mon., 48, 49; 2 J. J. Mar., 263 ; 1 Dana, 15.</p>

<p>CASE 24 — PETITION ORDINARY —</p> <p>APPEAL FROM LINCOLN CIRCUIT COURT.</p> <p>cited fa. Acts 1833-4, page 531, sec. 24.</p> <p>cited 7 B. Mon., 41-2-3 ; 12 B. Mon., 250-1; Story on Agency, top page 408, side 321; 13 B. Mon., 562-3; Road Charter, Sess. Acts 1833-4.</p> <p>cited 1 vol. Railroad Cases, 284; 2 lb., 330, and authorities there referred to; 4 Barn. Sf Adolph., 590; 9 Barn. 8; Cress., 591.</p>

<p>1. It is well settled that the partial or total failure of consideration, or even fraud, between antecedent parties will be no defense to the title of a bona fide holder of a bill of exchange for a valuable consideration at or before the time it becomes due, without notice of any infirmity in the bill. (Story on Bills, secs. 14, 188, et passim ; 1 Metcalfe, 317.) This rule of the common law is not altered by either the Revised Statutes, chapter 22, section 6, or by section 31 of the Civil Code.</p> <p>2. Bills of exchange, from their very nature, are the subjects of indorsement, and have always, from their earliest use, been assignable by indorsement, according tO’the common law. They are not within the operation of the statute of 1798, nor of the 6th section of the 22d chapter of the Revised Statutes, nor of section 31 of the Civil Code.</p> <p>3. A note, negotiable by its terms, payable at the branch of the Bank of Louisville in Flemingsburg, and indorsed to and discounted by the Bank of Ashland, is, by the charter of the latter, placed upon the same footing as a foreign bill of exchange, (Session Acts 1855-6,page 26,) and where it is taken up by the person who indorsed it to the bank, (if he be an innocent holder,) such an act does not deprive the paper of the character and properties which it possessed in the hands of the bank, and in an action by him against the antecedent parties to the note, no defense thereto, by way of set-off or counter claim, arising out of the contract between such antecedent parties, concerning which the note was executed, can be allowed.</p>

<p>CASE 26 — PETITION ORDINARY —</p> <p>APPEAL FROM FLEMING CIRCUIT COURT.</p>

<p>CASE 27 —</p> <p>APPEAL PROM NELSON CIRCUIT COURT.</p> <p>cited 25 Wend., 131, 139; Rev. Stat., 280; 12 B. Mon., 518; Jarman on Wills, 756; 1 Roper on Legacies, 392 ; 4 Dana, 570; 7 B. Mon., 631; 2 lb., 461; 5 Dana, 489 ; 5 J.J. Mar., 357; 16 Mass., 244; 9 Leigh, 79, 96; 1 Dcssaurds Eq. R., 324; Jb., 499; 2 Pick., 469; 10 Ohio, 38; 12 B. Mon., 632; 11 lb., 86, 91; 2 lb., 461; 3 Stat. Law, 400 ; Addison on Contracts, 847; 2 B. Mon., 166; 11 Grattan, 75 ; 6 Dana, 52; 35 Eng. Law and Eq., 589; Lomax on Executors, side page 58 ; 4 Kent, 202; 15 B. Mon., 551; 1 Bro. P. C., 189; 1 Vesey, sen., 165; 3 Burr., 1881; 2 Vesey, jr., 265 ; 3 lb., 204; lb., 450 ; 7 lb., 280; 4 Bos. Sf Pul., 82; 6 Taunt., 213; 15 Eng. C. L. Rep., 207; 5 Cond. Eng. Ch. R., 263; 25 Wend., 119; Stone vs. Brown and wife, SfC., MS. opin., July 8, 1856.</p> <p>cited 9 B. Mon., 324; 12 B. Mon., 643.</p> <p>cited Ward on Legacies, p. 92; 18 Law Library, side page 179; lb., Law Lab., side page. 180; Roper on Legacies, 271-2-3-4-275; lb., 268; 1 Vesey, 14 and 166; 4 lb., 554; 4 Dana, 457; 2 Jarman on Wills, side pages 643, 644, 650; 2 Roper on Wills, 268; Ward on Legacies, 172; 2 Vesey, 217 ; Gilberts Eq. Cases, 11; 9 B. Mon., 324; 2 Salic., 415; 4 Ves., 399; Williams on Executors, 773.</p>

<p>CASE 28 — PETITION ORDINARY —</p> <p>APPEAL PROM CLARKE CIRCUIT COURT.</p> <p>cited 1 Met., 42; 18 B. Mon., 537 ; Civil Code, sec. 123 ; Samuel vs. Dallam, MS. opinion, January, 1857.</p> <p>cited 13 B. Mon., 466; 17 lb., 645 ; Bowling’s heirs vs. Morris, MS. opin., .June, 1857; Civil Code, secs. 146, 161; Riggs vs. Maltby <Sf Co., ante 88.</p>

<p>1. A feme covert is not bound by a warranty contained in a deed for the conveyance of land, in which she unites with her husband, and is not liable to an action thereon; yet if there is a warranty annexed to the land to which she is entitled, the warranty passes by the deed to her grantee, who may maintain an action against her warrantor upon a breach of the warranty.</p> <p>2. Husband and wife conveyed land to H., who subsequently reconveyed it to them, and they then conveyed it to K. — all the deeds contained a covenant of general warranty. K. was evicted. Held — That K. could recover against' H. upon the covenant of warranty contained in the deed of H. to K.’s vendors — neither the feme nor her alienee being estopped to enforce the liability upon the warranty made to her.</p>

<p>A demand for unliquidated damages, although it may arise upon a contract, is not the proper subject of a set-off under the Civil Code'.</p>

<p>1. The statute of limitations must, if relied upon, be pleaded by the defendant unless the petition shows that the action is barred by time, and that the plaintiff is not within any of the exceptions mentioned in the statute, when any exceptions .are contained in the statute which prescribes the limitation. It is not necessary that the plaintiff should allege in the petition that the action has been brought in due time, although the statute under which the action is brought contains the limitation.</p> <p>2. In actions for personal injuries, resulting from negligence, it is sufficient for the plaintiff to allege in general terms that the injury complained of was occasioned by the carelessness and negligence of the defendant. He is not required to state the circumstances with which the infliction of the injury was accompanied in order to show that it had been occasioned by negligence. An allegation of the extent of the injury, and of the manner in which it was inflicted, has been always regarded as sufficient. (2 Chitty on Pleading, 650.)</p> <p>3. A petition by an administratrix alleged that the defendant, by means of his willful neglect, shot and killed her said husband, to her great damage, &c. Held— Sufficient without setting forth the facts which constituted the willful neglect.</p> <p>4. The act entitled “An act for the redress of injuries arising from the neglect or misconduct of railroad companies, or others,” (Sess. Acts, 1853-4, vol. 1, p. 175,) is not in conflict with the 37th section of the 2d article of the constitution, which declares, that “ no law enacted by the General Assembly shall relate to more than one subject, jjmd that shall be expressed in the title.” The subject of the act is the redress of injuries to life'resulting from negligence, which is clearly expressed in the title. No other subject is embraced by the act, nor does it contain any provision that does not relate to that subject. The fact that a remedy for such injuries was furnished against natural as well as artificial persons, does not impart to it the character of a law embracing various and distinct subjects.</p> <p>5. Conceding that it is against the spirit of the constitution to inflict more than one punishment for the same offense, still, a law which authorizes a civil action for the recovery of punitive damages by the personal, representative of one killed by the willful neglect of another, is not liable to condemnation, even though the defendant be liable to indictment for the same offense.</p> <p>6. Punitive, vindictive, and exemplary damages are, in legal contemplation, synonymous terms.</p> <p>7. The right of a plaintiff to recover vindictive damages for personal injuries where the commission of the act complained of is accompanied with circumstances of aggravation. has been repeatedly recognized, and must now be regarded as a settled rule of law in Kentucky.</p> <p>8. The term punitive damages in the statute allowing a civil action by the personal representative of one killed by the willful neglect of another, does not exclude the idea of damages for compensation. The damages are allowed as compensation for the loss sustained, but the jury are permitted to give exemplary damages on account of the nature of the injury.</p> <p>9. That an instruction given at the instance of the defendant is not sufficiently explicit cannot afford him any cause of complaint.</p> <p>10. Reputation and cohabitation are admissible, in civil cases, to prove the existence of the relation of husband and wife.</p> <p>11. Where a petition contains causes of action which could not be properly joined in the same action, the objection to the defect is waived by the failure of the defendant to move the court to correct the error before filing his answer; and the waiver remains, even if the defendant is permitted to withdraw his answer. And, moreover, the court having, by its instructions to the jury, confined plaintiff’s right of recovery to one cause of action alone, the defendant was not prejudiced.</p> <p>12. In an action by an administratrix to recover damages for the killing of the intestate, her husband, by the willful neglect of the defendant, the facts proved (recited in the opinion) showed that the killing, although not intentional, was the result of perfect recklessness, and as such, rendered the defendant liable for the civil injury produced by his willful negligence. The verdict for $1,000 is not excessive, even if punitive damages were not allowable.</p>

<p>The champerty act of 1824 (1 Stat. Law, 287) applies to conveyances made by tenants in common and coparceners of their interest in land in possession of their co-tenants, whenever such possession is at the date of such deeds adverse to the grantors therein, and so indicated by specific and unequivocal acts of renunciation of allegiance to their co-tenapts, of which there should be clear and satisfactory evidence. There must be some act that would be equivalent to an ouster of those with whom they have been associated in the tenancy.</p>

<p>CASE 33 — PETITION ORDINARY —</p> <p>APPEAL FROM GRANT CIRCUIT COURT.</p> <p>cited Civil Code, sec. 392.</p>

<p>CASE 34 —</p> <p>APPEAL FROM GRANT CIRCUIT COURT.</p> <p>cited 10 B. Mon., 143.</p> <p>cited 3 Littcll, 290; 15 B. Mon., 140; 6 Dana, 91-2; 3 Bibb, 500; Rev. Statutes, sec. 1, chap. 42, page 367.</p>

<p>CASE 35 — PETITION EQUITY —</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>cited Civil Code, sec. 786; 1 Law Register, 612 ; 7 Porter, Ind,. Rep., 682 ; lb., 59.</p> <p>cited 16 Peters, 25-59 ; 4 Mon., 94; 6 Lb., 592; 11 Peters, 434; 6 Howard, 542; lb., 507 Smith pn Statutes, p. 414; 11 N. H., 19; 7 lb., 35 ; 8 lb., 398 ;. 21 Pick., 542 ; Civil Code, secs. 37, 120, 123, 796; 1 Bibb, 149;. 4 Peters, 514 ; 11 lb., 420; 6 How., 507; Hart vs. Providence R. R. Co., 4 Cush., Mass. R.</p>

<p>CASE 36 — PETITION EQUITY —</p> <p>APPEAL PROM PENDLETON CIRCUIT COURT.</p> <p>cited sec. 8, act of 27th Feb., 1849, Sess. Acts 1848-9, page 384 ; sec. 1, act approved 4th March, 1850, Sess. Acts 1849-50, p. 378 ; act Qth March, 1850, Sess. Acts 1849-50, p. 580; 17 B. Mon., 343-4; Best on Presumptions, p. 186; Slack vs. Maysville Sf Lex. R. R. Go., 13 B. Mon., dissenting opinion of Judge Rise.</p> <p>cited act of 27 Feb., 1849, Sess. Acts 1848-9, p. 384, sec. 8; act of 4th March, 1850, Sess. Acts 1849-50, p. 378 ; act of Qth March, 1850, Sess. Acts 1849-50, p. 580.</p>

<p>1. The paramount duty of a railroad company, through its agents intrusted with the conduct of a train, is to look to the safety of the persons and property thereon; subordinate to which is the duty to avoid unnecessary injury to animals straying upon the road.</p> <p>2. A railroad company which is not bound to fence its track is not liable for injuries inflicted by its engines and trains upon cattle, &c., straying upon the track of the road, unless such injury was caused by the wanton and reckless negligence of the company or its agents or servants.</p> <p>3. There is a peculiar obligation upon the owners of cattle to keep them off the tracks of railways.' And if they are found there, whilst railroad companies and their agents and servants are not allowed to omit all care, and willfully and wantonly injure them by running engines and trains over them, yet said companies are not to be held liable for injuries inflicted under such circumstances, unless it is proved that the conduct of the companies, or their agents, has been reckless, wanton, and willful.</p>

<p>CASE 38 —</p> <p>AITEAL FROM CAMPBELL CIRCUIT COURT.</p> <p>cited Co. Litt., 33, 129, 268 ; 2 Blackstone, 245 ; 3 Slat. L., 229 ; 1 Slat. L., 560; 1 Greenleaf Ev., sections 78-81; 1 Eden, 177, 261; 1 Stat. L., 620; Rev. Statutes, 307; 2 B. Mon., 400 ; 4 Bibb, 425; 3 J. J. Mar., 552; 6 lb., 493; 7 Cranch, 603; 1 Gill, Md., 430; 2 Har. fy McHen., 121; 6 Mon., 260; 9 Dana, 178; Vattel,p. 104; 2 Woodbury Minot, 1; 1 Blackstone, 250, 374; 1 Strobhart, S. Car., 295; 8 Blaclford, 246; 1 Johns. Cas., 399; Atkinson on Titles, 538-9; Rev. Stat., page 172; lb., 173, sec. 2; 6 B. Mon., 365.</p> <p>cited Hardin, 61; 1 Litt., 149 ; 7 Mon., 143 ; 2 Dana, 40; 1 B. Mon., 141; 6 John. Cliy R., 361; 6 Peters, 113, 118; 20 Pick., 121; 7 Rich. (S. C.) Law Rep., 349, 350, 351 ; Act of Congress (naturalization) of 1824, and sec. 1 of 1802 ; Rev. Stat.,p. 172-3; 20 Pick., 127; 3 Slat. Law, 31; 1 Stat. Law, 112; 1 Greenl. Cruise on Real Property, title 1, chap. 3, sec. 39, note; 1 B. Mon., 146-7-8; 9 Dana, 177; 1 Cow., 89; 5 lb., 713; 16 Wend., 617; 3 Litt., 480-1; 7 Mon., 143 ; 6 Mon., 630; 16 Pick., 177-8-9; 3 J. J. Mar., 598 ; 18 Ala., 572-3, 575; 7 Watts, 458-9.</p>

<p>CASE 39 — PETITION EQUITY —</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>cited Rev. Slat., 324; 15 B. Mon., 476 ; 3 Mon., 272; 2 Bibb, 518 ; 4 Mon., 464; 3 Bibb, 216; 13 B. Mon., 507; 8 lb., 105; 3 Litt., 127; 1 Dana, 360; 10 B. Mon., 159; 4 Mon., 235 ; 2 B. Mon., 254; 10 lb., 266.</p> <p>cited 2 Bibb, 403; 3 lb., 218, 219; 4 Mon., 474; 2 J. J. Mat'., 34, 35; 9 Dana, 325; Act of 1828, 1 Stat. Law, 653; Rev. Stat. 327; 8 Dana, 199; 4 J. J. Mar., 588; 2 B. Mon., 256.</p> <p>Rev. Stat., 327; 8 Dana, 199; 18 B. Mon., 60.</p> <p>cited Rev. Stat., 327.</p>

<p>CASE 40 — PETITION ORDINARY —</p> <p>APPEAL EROM BOURBON CIRCUIT COURT.</p> <p>cited Sess. Acts 1850-1, p. 194; Sess. Acts 1851-2, p. 393; Sess. Acts 1848-9, p. 237.</p> <p>R. Hawes and J. B. Beck, on same side, cited Session Acts 1850-1, p. 195; Session Acts 1851-2, pp. 394, 627;' Session Acts 1848-9, p. 237; 5 Dana, -110; White Tudor's Leading Cases in Equity, 61, 62, 63, 64 ; 5 Dana, 157 ; 1 Mon., 206; 8 B. Monroe, 139 ; 4 Bibb, 572.</p> <p>cited 9 Dana, 183; 2 B. Mon., 280; Sloan, <^c., vs. Ellis, Spc., MS. opinion, October, 1853; 6 B. Mon., 292; lb., 560; 5 Dana, 112; lb., 158; 1 Mon., 208; 2 Sess. Acts 1850-1, p. 194; Sess. Acts 1851-2, p. 394.</p>

<p>CASE 41 — PETITION EQUITY —</p> <p>ATPEAL PROM KENTON CIRCUIT COURT.</p>

<p>1. That a person who comes into a suit in which an attachment has issued, by petition, in which he disputes the validity of the attachment, sets up claim to the attached property, and prays to be, and is ordered by the court to be, made a party, was never, in fact, formally made a party, is not ground for reversal, where he was regarded by the court and the plaintiff (who Gomplains of the irregularity) as a party in court, and. the action proceeded in all respects as if he had been made a party.</p> <p>2. In such proceeding the court was authorized by the Civil Code (section 257) to empannel a jury to inquire into the fact whether the claimant was the owner, and entitled to the possession of the property at the time the attachment was levied; and a verdict in his favor, in response to that inquiry, must be regarded as relating to that period, although no time be specified in the finding of the jury.</p> <p>3. The owner of property, in whose possession it is found, if it be levied upon by an. attachment against a third party, and he, (the owner,) in order to retain his possession, give bond with condition, such as is prescribed by section 235 of Civil Code, is not thereby precluded from presenting his petition to the court whence the attachment issued, asserting his claim to the property, or disputing the validity of the attachment, as allowed by section 257 of the Code.</p> <p>4. In such case the claimant having paid into court, subject to its order, a sum of money equal to the value of the attached property, the condition of the bond was complied with and the bond discharged, and he should be allowed to withdraw the money, upon its being determined that the property was his, and not subject to the attachment.</p>

<p>1. Plaintiff declared upon a note executed by Di to him, payable at the Northern Bank of Kentucky at Covington, and upon which the names of F-, N., and C. were by (them indorsed in blank, at and before its delivery, whereby, as alleged, they “intended ¡to be equally bound as obligors.” It was not alleged that they indorsed the note as accommodation indorsers, or with the view of having it discounted at the bank where 3t was made payable, or for the purpose of guaranteeing its payment. Held — upon demurrer, that the petition does not show a cause of aetion against the indorsers.</p> <p>2. In such case parol evidence is not admissible to show that the indorsers of the mote indorsed it for the purpose, and with the intention of becoming bound thereon as obligors. But—</p> <p>3. The liability of an indorser or guarantor, being consistent with their position, such liability may, upon proper allegation, be established by parol proof of a corresponding intention on their part, upon the ground that their names must have been indorsed for some purpose, and should not be deemed to have been an idle act, done without motive or object.</p>

<p>1. By the first section of an act, entitled “ An act to amend the charter of the Covington and Cincinnati Bridge Company,” the capital stock of the company was increased to seven hundred thousand dollars, and by the second section power was conferred on the bridge company to sell,-and on the city ol' Covington to subscribe, for one hundred thousand dollars of the capital stock of the company, and in payment thereof to sell the bonds of the city and levy a tax for the payment of interest on the bonds. Held —That the act is not in conflict with the 37th section of the 2d article of the constitution, which provides that no law shall relate to more than one subject, and that shall be expressed in the title.</p> <p>2. The constitutional prohibition, supra, should receive a rational construction, and, looking to the evil intended to be remedied, it should be applied to such acts of the legislature alone as are obviously within its spirit and meaning. None of the provisions of a statute should be regarded as unconstitutional where they all relate, directly or indirectly, to the same subject, have a natural connection, and are not foreign to the subject expressed in its title.</p> <p>3. A subscriber to the stock of the Covington and Cincinnati bridge company made his subscription payable after four hundred thousand dollars shall have been subscribed. In determining whether this amount had been subscribed, the amount subscribed by the city of Covington, which was unconditional, is to be included, notwithstanding the subsequent payment thereof by bonds of the city at par when their market value was less than par. Stock subscribed by contractors, payable in services, and materials, estimated at their cash value, to be used in the construction of the bridge, must also be included ; as also the subscription of a stockholder, one half of Whose stock the company might, at its option, convert into bonds to be issued by it. The unpaid subscriptions of persons who were insolvent, or infants, or married women, at the time of making them, excluded from the computation</p>

<p>1. It may now be regarded as well settled in this State thafwhen money has been paid through a clear and palpable mistake of law or fact, essentially aifecting the rights of the parties, which in law, honor, or conscience was not due and payable, and which ought not to be retained by the party to whom it was paid, it may be recovered back. (4 Dana, 309; 3 B. Mon., 513; 1 Met., 153.)</p> <p>2. Money voluntarily paid by one who knows he is not bound to pay, cannot bé recovered back. (18 B. Mon., 799, and authorities there cited.)</p> <p>3. Pleadings are to be most strongly construed against the party pleading; and words of a doubtful character, or words used in an equivocal sense, are to receive an interpretation unfavorable to the party using them.</p> <p>4. In two actions against a city corporation, each petition charges directly that the money sued for was paid by the plaintiff as taxes based upon an illegal assessment of his surplus made by the city, and in ignorance of his rights or of the fact that such assessment was illegal, but that he believed at the time that it was legal and collectable. The answer to one petition merely says in effect that the plaintiff was apprised of the existence of the law and the facts in relation to said assessment; and with such knowledge went forward and voluntarily paid the tax, and in the year 1856 went to the assessor and required him to assess his surplus for that year. The answer to the other petition alleges that the plaintiff assented to the assessment, and with a full knowledge of “the law and facts ” in relation to said tax, voluntarily and of his own accord paid the taxes, if at all, to the city. Held — That the answers are equivocal and evasive, and insufficient upon demurrer.</p> <p>5. A benefit derived by a party, in common with other inhabitants of a city, from general improvements of roads, streets, wharves, &c., and a consequent increase of business to such city, is not such a consideration as will estop him from recovering from the authorities of the city money that he has ignorantly paid upon an illegal or unauthorized assessment of taxes expended in such improvements.</p> <p>6. The provisions of the charter of a city, authorizing a tax “ upon such real and personal estate” as the city authorities might designate, do not allow a tax upon chases in action belonging to the inhabitants of the city. The words “ real and personal estate,” as thus used, refer only to visible property, and such as is actually within the city at the time of assessment.</p>

<p>The estate of a ward remaining in the hands of an insolvent decedent as guardian, must be paid before a pro rata distribution is made among the general creditors of such decedent. (Sec. 33, chap. 37, Rev. Stat.) And in equity the creditors of the ward may be substituted to his rights, to the extent of their claims against the ward, where such claims are of a character for the guardian to pay, and for which, if paid by him, he would be entitled to credits in a settlement of his accounts with the ward.</p>

CASE 47 — PETITION EQUITY — APPEAL from nelson circuit court. cited Ward vs. Gray, MS. opin.; act of 1846, to protect the rights of married women; Rev. Stat., page 388, title Husband and Wife, sub-div. 1, of sec. 1; 12 jB. Mon., 330; Rev. Stat., 199, secs. 20, 21, title Conveyances; 2 B. Mon., 205 ; 17 B. Mon., 60 ; 5 /. J. Mar., 119 ; 12 B. Mon., 664; Rev. Stat., 395, sec. 17. cited Rev. Stat., 199, sec. 20, title Conveyances.

<p>CASE 48 —</p> <p>MOTION TO QUASH SUTEKSEDEAS IN COUHT 01? APPEALS.</p>

<p>1. A citizen of another State, sued in a circuit court of this State, who desires to obtain a removal of the cause to the circuit court of the United States for the district of Kentucky, must file a petition for its removal at the time he enters his appearance to the action, and the petition must allege that the plaintiff was a citizen of this State at the commencement of the action. His failure to do so at the proper time must be regarded as a waiver of the right to remove the cause from the court in which it is pending.</p> <p>2. Where, in an action pending in equity, the only issue made by the pleadings was as to the liability of the defendant to the plaintiff for the demand asserted by the latter, and the extent of such liability, if it existed, which was transferred to the common law docket to be tried by a jury, the order on the subject, to the effect that the issue raised by the pleadings was to be tried by a jury, is sufficiently explicit.</p> <p>3. Upon the trial by a jury of an issue out of equity, oral testimony is always admissible. Depositions maybe used unless the court otherwise directs, in which case oral testimony alone will be admissible. (Civil Code, sec. 613.)</p> <p>4. If B. is employed by one defendant to a suit to act as counsel for him, and also for another defendant, of which the latter was apprised, but who had counsel of his own employment, and had not employed B., although the services of B. may have been beneficial to such other defendant, and received and accepted by him, yet he would not, thereby, incur any liability to pay for them; otherwise, if he was apprised that he was looked to by B. for compensation for his services, and afterwards received them, without informing him that he would not pay for them.</p> <p>5. The president of a bank, being its chief executive officer, has a right as such to appear and answer for it and employ counsel for its defense.</p>

<p>CASE 50 —</p> <p>APPEAL PROM PULTON CIRCUIT COURT.</p> <p>cited Rev. Stat., sec. 10,p. 620; lb., see. 9, p. 622 ; Civil Code, sec. 66.</p> <p>cited Civil Code, sec. 66; Rev. Stat., sec. 9, p. 622.</p>

<p>CASE 51 — PETITION ORDINARY —</p> <p>APPEAL PROM SHELBY CIRCUIT COURT.</p> <p>cited 4 N. Ramp. Rep., 221; 14 B. Mon., 14; 2 Smith’s Leading Gases, 5th Amer. ed., €42; 19 Wend., 557; 21 lb., 72; 2 Amer. Leading Cases, 411; 6 N. Ramp., 30; 11 Wend., 312; 11 Met., {Mass.) 283 ; 10 Peters, 257; 9 Serg. & Rawle, 229; 12 lb., 332; 6 Cow., 484; 10 Ver-Jnont, 182; 26 lb., 19; 5 W. § L., 99; 6 Dow, 243.; 9 Pick., 551 7 Mar. 4* John., 92; Civil Code, sections 400, 123; 13 B. Mon., 466; Goddard vs. MaddocJc, MS. opin., Dec., 1854.</p> <p>cited 3 Dana, 566; 7 lb., 305; 8 B. Mon., 382; 1 lb., 326; Civil Code, sections 400,, 568; 14 B. Mon., 321; 18 lb., 128; 7 J. J. Mar., 397.</p>

<p>CASE 52 — PETITION EQUITY —</p> <p>APPEAL FROM M’CRACKEN EOUITY AND CRIMINAL COURT.</p> <p>cited Rev. Stat.,p. 199, sees. 20, 22; Ib.,p. 388.</p>

<p>. The statutes requiring demands against the estates of decedents to be verified by tlie affidavits of the claimants, are applicable to a claimant who has commenced his action, but has not recovered judgment before the death of his debtor. When the action is revived against the administrator, and ho obtains a rule requiring the plaintiff to verify the demand by affidavit, who refuses to do so, it is proper to dismiss the cause without prejudice.</p>

<p>CASE 54 — PETITION EQUITY —</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>cited 6 Barr, 364; 8 Wend., 666; 8 Cow., 258; 4 McCord, 259; Story's Partnership, secs. 344, 325, 326,327,328,347; Gow’s Partnership, p. 331; 6 Cow., 442; 1 Taunt., 104; 20 Barb., 477; 23 Missouri, 76; 21 lb., 215; 11 Ves., 5; Addison on Contracts, p. 359; 1 Parsons on Contracts,p. Ill; Story on Contracts, second cd., secs. 275, 276; 12 Smedes ¿y Marshall, 669; 2 John., Ch. Rep., 509 ; 4 Dana, 148 ; 3 Kent, 63 ; 1 Meeson ¿y Welsby, 423; Broom’s Legal Maxims, [704.]</p> <p>cited 2 Bibb, 103 ; 1 Bibb, 547; 4 Litt., 412; 5 B. Mon., 501; 1 Williams on Ex., 678; 2 lb., 1467; Chitty on Contracts, 98; 1 Chitty’s Pleadings, 58; 2 Kent, 839, 825, 841, eighth ed.; 8 Wheaton, 201; 3 Watts Serg., 79 ; Story on Agency, secs. 13, 14, 23 ; 6 Barr, 380; 3 Mon., 71; 2 J. J. Mar., 184.</p>

<p>CASE 55 —</p> <p>APPEAL FROM JEFFERSON COUNTY COURT.</p> <p>cited act of March 10, 1856, Sess. Acts 1855-6, p. 123; Civil Code, secs. 29, 853; 13 Wendell, 156; Sess. Acts 1853-4, vol. 1, p. 60; 3 J. J. Mar., 62; 5 Dana, 588; 7 Dana, 168.</p>

<p>1. The circuit court has jurisdiction where the principal of the debt sued on, and the interest which has accrued on it, exceed in the aggregate the sum of fifty dollars.</p> <p>2. Where several debts, amounting in the aggregate to more than fifty dollars, are united in the same paragraph of plaintiff’s petition, although each debt, with its interest, is below that sum, the circuit court has jurisdiction.</p>

<p>1. Prior to the adoption of the Criminal Code there was no statutory provision in force in this State authorizing the courts, where the punishment was confinement in the penitentiary, to render a judgment ordering the term of imprisonment to coni" menee at a future period, or after the expiration of a previous period of confinement.</p> <p>2. In September, 1852, a prisoner was found guilty by a verdict on two indictments for separate felonies, and assessing his punishment in each case to confinement in the State penitentiary for a period of five years. The court rendered this judgment thereon: “ It is considered by the court that the prisoner be confined in the jail and penitentiary house of this Commonwealth to hard labor for the space of Jive years upon each indictment.” JZeM — That the legal effect of the judgment is, that the prisoner should be confined for five years only; that such confinement should be upon each indictment; and that both terms of five years should commence and terminate simultaneously.</p>

CASE 53 — PETITION ORDINARY — APPEAL PROM JEFFERSON CIRCUIT COURT. Cooke sued Totten on two separate causes of action — one for $640, balance due on a wood contract, and the other for $779 78, due by note.

<p>CASE 59 — PETITION ORDINARY —</p> <p>APPEAL PROM PULTON CIRCUIT COURT.</p> <p>cited Taylor vs. Bank of Illinois, 7 Mon.; Chilty on Bills, (old edition,) side page 213 and 234.</p> <p>cited 4 B. Mon., 600.</p> <p>cited 4 B. Món., 600 ; 1 Met., 430; Civil Code, sec. 149; 4 Dana, 100; 23 Wendell, 381.</p>

<p>CASE 60 — PETITION EQUITY —</p> <p>APTEAL PROit LOUISVILLE CHANCERY COURT.</p> <p>cited Civil Code, sec. 228, sub-div., 3 ; lb., secs. 474, 475, 476 ; 17 B. Mon., 324; lb., 542; Samuel vs. Dallam, MS. opin., January, 1857.</p> <p>cited Civil Code, secs. 474, 475, 476, 477; 9 B. Mon., 231; 7 lb., 116,314; 11 lb., 310, 318; 2 lb., 470; 3 lb., 116; 6 lb., 130; 2 Marsh., 40; 3 Marsh., 350.</p>

<p>CASE 61 — PETITION ORDINARY —</p> <p>APPEAL EROJI HOPKINS CIRCUIT COURT.</p> <p>cited 1 Mar., 371; Act of 1813, 1 Stat. Law, 806, sec. 5 ; 6 Dana, 466; 1 Story’s Equity Jur., see. 3¿2; 3 John., Chan. Rep., 347; Act of 1831, 2 Slat. Law, 802; 6 Dana, 87; 9 Dana, 273; 8 B. Mon., 104; 5 Mon., 451; Revised Statutes, 396.</p>

<p>CASE 62 — PETITION ORDINARY —</p> <p>APPEAL FROM HARDIN CIRCUIT COURT.</p> <p>cited 1 B. Mon., 239; 2 Lilt., 125; 5 Mon., 98; 1 Mon., 239; 2 J. J. Mar., 481; Lift. Sel. Cases, 300; 1 Mon., 7, 8; 3 Mar., 515; 5 Mon., 98 ; 5 Dana, 33.6; 4 Bibb, 332 ; 2 Mar., 17.</p> <p>cited 1 Met., 169.</p>

<p>1. The principle is well settled that a set-off, to be available, either at law or in equity, against an assignee, must have existed before notice of the assignment.</p> <p>2. A surety, until he pays the money for his principal, has no available demand against him which amounts either to a set-off or an equitable discount.</p> <p>3. A debt or demand cannot be used as a set-off until it becomes due; and unless it be due before notice of the assignment, it is not available against the assignee. (1 Met., 112.)</p> <p>4. The insolvency of the principal, at the time he assigns a note held by him upon the surety, does not entitle the latter to an equity against the note in the hands of the assignee, he not having paid the debt for which ho was surety until after he had notice of the assignment. The mere fact that he was the surety of the assignor on another note, who was insolvent at the time the note sued on was assigned to the plaintiff, and also at the periods when both notes were executed, would not entitle the defendant to a set-off, nor constitute an equitable defense to an action on his note, either in the name of the assignor or assignee.</p>

<p>1. The rule of practice which required bills of exceptions to be filed in term time has not been changed by the Code.</p> <p>2. An order was made allowing forty days to prepare a bill of exceptions containing a statement of the evidence, to which both parties excepted. The bill was made out, signed by the judge and filed, in vacation, the clerk certifying that the parlies filed it in his office. Held — That it forms no part of the record.</p> <p>3. In an action to recover damages for an alleged breach of an agreement to marry, an instruction that if the jury believed the plaintiff ought to recover, but disagreed as to the amount, “ they have the right, each one, to set down the sum he believes ought to be recovered by the plaintiff, and add them all together, then divide the sum total by the number 12, and find that amount, 12th part, in damages, if they think proper to .do so,” is erroneous.</p> <p>4. An instruction to the jury that every material allegation in plaintiff’s petition, not denied by the answer, must, for the purposes of the action, be taken as true, is improper and erroneous. (1 Met. liy. Rep., 570.)</p> <p>5. Mutuality of obligation is essential to a contract to marry.</p> <p>6. Where the plaintiff was induced by the false statements of a third person to write a letter to the defendant discarding him, and releasing him from his engagement and promise to marry her, which letter was received and in good faith acted upon by him, he having had no participation in or knowledge of its fraudulent procurement from ner, she cannot recover in an action for an alleged breach of such promise.</p>

<p>1. A petition in the names of payee of a note, and another to whom it passed by delivery, as co-plaintiffs, distinctly stated that the note was the property of the latter, and prayed judgment in his favor alone. Judgment was entered in favor of both plaintiffs jointly. Held — That it is a clerical misprision, which the court has power to correct by modification of the judgment, after the expiration of the term at which it was rendered, upon proper motion and notice, although execution has issued and been replevied by the defendant.</p> <p>2. In such case, when it is made to appear by the defendant on the trial of the motion to correct the judgment that ho has paid the debt to the payee of the note who claimed the right to it, such payee is a necessary party to the motion, and should have notice and an opportunity of asserting and establishing his rights; and if successful, the defendant will be protected in his payment to him; otherwise the judgment will be corrected.</p>

<p>1. The provisions of the Revised Statutes, in reference to the jurisdiction of the county courts to grant administration, are substantially the same that were contained in the previous statutes on the same subject.</p> <p>2. A county court in this State has no jurisdiction to grant administration on the estate of a person who died domiciled in another State, where there is no personal estate here to be administered; and every such grant is void, and confers no power or authority on the person appointed as administrator.</p> <p>3. The statute which regulates the administration of the estate of any person who was an inhabitant of any other State or country, as well as that which provides for the settlement and distribution of insolvent estates, by an action to be brought for that purpose by the administrator, contemplates the existence of personal estate, and its due and proper administration; and has no application to a case where the estate of the decedent does not pass into the hands of an administrator, and where no duties or liabilities can devolve upon him. (Revised Statutes, p. 335; Civil Code, secs. 465,466.)</p>

<p>1. A proposition or offer imposes no obligation on the party making'it, unless it be accepted by the party to whom it is made; and the acceptance must, where no time is fixed by the proposer, be within a reasonable time, to be determined by the nature of the case.</p> <p>2. If no definite time is stated, the inquiry as to what is a reasonable time within which a proposition must be accepted, is as to what time it is rational to suppose that the parties contemplated; and the law will decide this to be that time which, as rational men, they ought to have understood each other to have in mind.</p> <p>3. A petition alleges that on the-day of-, 1851, defendant’s testator proposed to plaintiff that if he would quit his business and trade of carpenter, and come and live with the testator on his farm, that he would do, &c.; and avers that the plaintiff, confiding in the promises so made, did, on the-day of-, 1S51, quit his said trade and go, &c. — but does not allege in terms or in substance that he accepted the proposition within a reasonable time after it was made, nor show any acts of the testator waiving the failure to accept it within such time. Held — Upon demurrer, that the dates are not so stated as to enable the court to infer, by the most liberal intendment, that the acceptance was within a reasonable time; and that the petition sets out no valid contract.</p> <p>4. The breach of a contract is an essential part of the cause of action, and should be assigned in the words of the contract, or in words which are co-extensive with the import and effect of it. (Gkitty’s Pleadings, 332 ) If the breach vary from the sense and substance of the contract, and be either more limited or larger than the covenant, it will be insufficient. (Ibid, 334.) It is not necessary that it should be assigned in the words of the covenant, but the expressions must be of the like import, or rather, such words must be used as show that they cannot be true unless the covenant is broken. (3 Marshall, 532.)</p> <p>5. The rulej of pleading which require that the contract itself shall be substantially set out, as well as the breach of which the plaintiff complains, are fundamental, and have neither been abrogated nor essentially modified by any of the provisions of the Civil Code.</p> <p>6. The substance of an alleged agreement is, that the plaintiff should quit his business and trade of carpenter, and should come and live with defendant’s testator on his farm, and that the latter would do as well or better for the plaintiff than the plaintiff was doing or could do by his said trade; and the breach assigned is, that the testator and his representatives had failed to pay to the plaintiff any part of the sum of $1,200 per year, that being the annual value of the plaintiff’s trade and business. Held — That the breach as assigned is insufficient.</p>

<p>1. In subscribing for stock in a railroad company, the charter of which creates and defines the terms of the contract between the company and the stockholder, it is only necessary that the writing should indicate the intention to become a stockholder, and the number of shares that are taken by the subscriber. The taking of stock creates a contract to pay for it in the mode prescribed by 'the charter, and a stipulation to that effect in the subscription paper is not necessary.</p> <p>2. The heading of a subscription is as follows: “Railroad stock taken at Catlettsburg, ICy., in Lexington and Big Sandy R. R. company, May 12th, 1852.” Underneath are written the names of the subscribers and the number of shares subscribed by each. One of them, who acted as a stockholder in the election of directors, and made partial payments on his stock after the company organized, is sued for the unpaid balance of his subscription. Held — That he was legally a stockholder in the company.</p> <p>3. Where the directors of a railroad were authorized by the charter to vary the route and change the location of the road whenever a cheaper or better route could be had — a change of location which placed the road upon a cheaper route, and procured a large additional subscription of stock, and also furnished a reasonable probability that the business and profits of the road, when finished, would be thereby considerably augmented, does not exonerate the subscribers from the payment of their stock.</p> <p>4. Nor are subscribers living at and owners of real estate in a town, made by the charter the terminus of the road, exonerated from the payment of their stock because such change of the location of the road will build up a rival town several miles distant, and that their town will be injured thereby.</p> <p>5. Amendments of the charter of an incorporated company which are necessary to carry into effect its main design, may be made without the consent of a shareholder. But an amendment which materially and fundamentally changes the responsibilities and duties of the company, or which superadds an entirely new enterprise to that which was originally contemplated, may be resisted by the stockholders, unless such amendments are provided for in the charter itself, or in the general laws of the State in force at the time the act of incorporation was passed.</p> <p>6. Subseribers who do not assent to such amendment may prevent the company from proceeding to act under it, and embarking in enterprises not contemplated by the original charter; or permit the company to proceed under the amended charter, and dissolve their connection with the company upon equitable terms. But the mere passage of the amendment, conferring such additional powers upon the company, which it has not attempted, and may never attempt, to exercise, does not operate per se to exonerate a shareholder from liability to pay his subscription.</p> <p>7. Where a given amount of capital stock is required to be subscribed before a corporation, by the terms of its charter, is authorized to go into operation, it is necessary, in an action by the company against a stockholder to recover the amount subscribed by him, that the petition should allege that the requisite amount of stock had been subscribed before he was called upon for the amount of his subscription; and the failure to make such averment may be relied upon for reversal, although the question was not made in the circuit court.</p>

CASE 69 — PETITION EQUITY — APPEAL PROM LARUE CIRCUIT COURT. cited sec. 14, Civil Code, as to right to set up the defense where the facts have been discovered since the judgment; lb., sec. 574, as to the right of appeal. No appeal lies. (Civil Code, sec. 327.)

<p>1. A defendant in an execution, surety for the other defendants therein, who pays the amount thereof to the plaintiff after the sheriff has failed to return it for thirty days after the return day, has no right to the thirty per cent, damages which the law imposes upon the sheriff for such failure. But the plaintiff in the execution, notwithstanding such payment, has the right to maintain a motion against the sheriff and his sureties for the recovery of the damages — a right which he does not lose by permitting the motion to be carried on for the benefit of the surety; nor does such permission invest the surety with such a beneficial interest as requires him to be a party to the motion.</p> <p>2. The pendency of an action against a sheriff and his sureties for official delinquency in failing to collect an execution when it was in his hands, and for making a false return thereon, is no bar to the prosecution of a motion against them to recover damages for the failure of the sheriff to return the execution for thirty days after the return day.</p> <p>3. In a motion by the plaintiff in an execution against the sheriff and his sureties for a failure to return it for thirty days after the return day, when the amount of the execution has been paid to the plaintiff by a defendant in the execution after such failure, the plaintiff cannot recover the amount thereof, but only the thirty per cent, damages for which the sheriff rendered himself liable by his official delinquency.</p> <p>4. Quture? Can a defendant in an execution, surety for the other defendants therein, who, after the failure of the sheriff to return it for thirty days after the return day, pays the plaintiff therein the amount thereof, avail himself of the liability of the sheriff for the amount of the execution on account of such failure? If so, still, a joint motion by the surety and the plaintiff in the execution would be irregular and unauthorized.</p>

<p>CASE 71 — PETITION EQUITY —</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>cited 12 B. Mon., 234; 5 lb., 116; 14 lb., 145-6; 1 Eq. Lead. Cases, 412, cd. of 1852; 9 Henning’s Statutes at Large, 226; 10iA sec. act of 1796, 1 M. Sy. B., 442; 1 Litt. Laws of Ky., 565; 2 Blackstonc, 113 ; 2 Kent, 353-4; Williams on Personal Property, 204 — 5, 302 ; 10 B. Mon., 56 ; lb., 104 ; 15 Pick., 104, (114;) 1 Sumner, 359 ; 3 Kelly, 551, (564;) 25 Ala., 285; 8 Gratt., 346; 18 Ala., 400; 10 B. Mon., 193; 1 Jarman on Wills, 726-7; 12 B. Mon., 40, 43; 13 lb., 454; Civil Code, sec. 40; 4 Kent., 29; 9 B. Mon., 321 ; 7 Dana, 11; Duval vs. Ramsey, MS. opin. Oct., 1857.</p>

<p>1. To bring an assignment, sale, or transfer, or any such instrument, within the operation of the act of March 10, 1856, (Ness. Acts 1855-6, page 107,) there must be a concurrence of two things; the act must be done (1) in contemplation of insolvency, and (2) with the design to prefer, one or more creditors to the exclusion, in whole or in part, of others.</p> <p>2. An assignment by insolvent debtors composing a firm, conveying all their property to trustees for the payment of their debts, by which all creditors, whether of the firm or of the individuals who composed the firm, were provided for alike, and if the effects assigned were not sufficient to pay all the debts there was to be a pro rata distribution, is not within the operation of the statute of 1856, supra; and the wards of one of the debtors are not entitled to a preference in the distribution of the individual property of the guardian, or of any of the assets assigned.</p>

<p>CASE 73 — PETITION ORDINARY —</p> <p>APPEAL FROM FLOYD CIRCUIT COURT.</p>

CASE 74 — CHANCERY— ArrF.AL FROM GRANT CIRCUIT COURT. cited Rev. Statutes, sec. 2, page 127; lb., chap. 106, secs. 28, 26, 38; 18 B. Mon., 259; 15 B. Mon., 34; Rev. Slat., 191, sec. 23. cited sec. 11, Act of 1797, 2 Stat. Law, 1543 ; Rev. Slat., 127, sec. 3; lb., 458, sec. 1; lb., sec. 26, page 697 ; lb., 190, sec. 14; Civil Code, secs. 875, 121, 909; lb., 2d ed. 1853, sec. 661. cited see. 11, Act of 1797, 2 Stat.

<p>The Cypress Pond Draining Company was incorporated to drain and keep drained the lands within a specified boundary, at the cost of the owners of such lands, the company being authorized by the act to collect a tax on each acre not exceeding twenty-five cents per acre for that purpose, for ten years, to be collected by the sheriff. With the money thus collected the board of managers, six in number, named in the act, is required to drain certain creeks and ponds within said boundary. The members of the board own in the aggregate 3,840 acres, the larger portion of which is low and wet land, subject to inundation, and of little or no value in its present condition, but will be rendered very valuable by the contemplated draining. The corporate boundary contains 14,621 acres, owned by sixty-eight persons. Thirty-four of these, owning 5,975 acres, had no agency in the passage of the act, and no notice of the application therefor, gave no assent to its provisions, and a very small portion of whose lands, if any, will be benefited or improved in value by the proposed draining, and they resist the collection of the tax. Held — That, as to them, the act of incorporation is unconstitutional, inoperative, and void. {Con. Ky., art. 13, sec. 14.)</p>

<p>1. The general rale is, that the chancellor will consider every thing done in disobedience of his process as not done at all, or will undo it, if necessary to afford the proper relief. (4 Mon., 569.) But it is necessary for tho party to show on the hearing that lie had a clear equity, or that he had a valid ground for the injunction when granted. If this he not done, such subsequent acts of the parties will not be disturbed by the chancellor, because it cannot be said that the plaintiff is prejudiced by them. Unless tlie petition shows upon its face a case for the jurisdiction of the chancellor, the proceeding cannot operate as a lis pendens, even from the date of the service of process, so as to affect the property sought to be subjected, or to overreach a subsequent sale or other disposition of it. (6 B. Mon., 130; 4 Mon., supra.) And a lis pendens ere ited by an amended petition, setting up a different and distinct ground of relii f, will not relate back to the commencement of the action so as to affect intervening rights. (I Met, 654.)</p> <p>S. The creditors of a partnership have no lien for the payment of their debts upon the partnership effects. Whenever such a lien can be asserted at all, it must be derived from or through one of the partners, and is in such cases but the equity of the pirfner operating to the payment of partnership debts. (3 Kent's Com., 65; Story on Part., sec. 360.) Being derivative merely, this lien fails whenever the partner has done any act by which he lias divested himself of the lien the benefit of which is clainieoiq the creditors. (13 B. Mon., 414.)</p> <p>3. The partners may by their joint act convert the partnership property into individual properly, and although neither partner can, without the consent of the others, apply the effects of the firm to his individual purposes or to the payment of his individual debts, yet he may do so by the consent of the others. The right of the partners, unitedly, to dispose of the firm property, is the same in all respects as the/right which an individual has to control and dispose of his property.</p> <p>4. The only insolvency which will give the chancellor jurisdiction to decree priority of payment in favor of partnership debts is that which is ascertained and established by a judgment, execution, and return of “ no property” against one or more of the partners. The mere allegation that the firm, or the partners composing it, are unable to pay their debts, whether joint or individual, or both, does not constitute a ground of equitable jurisdiction.</p> <p>5. Nor is the alleged apprehension of a creditor of the partnership that the partners would use the firm property and effects to the payment of their individual debts, sufficient to'give the chancellor jurisdiction.</p> <p>6. The mere application of partnership property by the firm to the payment of thp individual debts of the several partners is not of itself a fraud upon the rights of the firm creditors. That a creditor knew that the firm owed partnership debts when he received partnership property in payment of debts which the partners owed him individually, does not render the transaction fraudulent.</p> <p>7. A sheriff having given up to the defendant personal property levied on under several executions by himself and a constable, by agreement between them, to be sold by such defendant to avoid the sacrifice which might have attended a sale made by the officers, and to appropriate the proceeds according to the rights which had been acquired under the several levies, had a right to levy the executions in his hands upon, the lands of the defendant, and a sale under such levy was valid.</p> <p>8. A creditor of a partnership alleged that the firm had become involved, and by reason of a disagreement among themselves, the partners were unable to carry on or wind up the partnership to any advantage; that the firm had sold part of the partnership effects, and were paying their individual debts with the proceeds; that owing to the disagreement spoken of they refuse to carry on the partnership agreeable to the original design, and will agree on no plan to settle up and pay off firm debts, but were applying the effects to the payment of their individual debts, to the prejudice and oppression of the .plaintiff and other firm creditors, and that the partners are unable to pay their individual and partnership debts, &c. And prayed an injunction to prevent them from selling, or disposing of or consuming, any of the partnership effects, &c. Held — That the facts set forth are not sufficient to confer upon the chancellor jurisdiction to lay hold of the partnership effects, and to administer them according to the principles of equity.</p>

<p>CASE 77 —</p> <p>APPEAL FROM ANDERSON CIRCUIT COURT.</p> <p>cited Williams on Executors, 2d Amer. ed., 102-3, and cases referred to; Act of 1797, 2 Statute Law, 1539 ; 7 Dana, 94; 5 J. J. Mar., 471.</p> <p>cited Williams on Executors, 153-4; 2 Watts & Scrg., 145; 6 Ves., 608; 1 Ves., 109; 1 Phillim., 485.</p>

<p>CASE 1 — MOTION—</p> <p>APPEAL PROM PRANKLIN CIRCUIT COURT.</p> <p>cited Rev. Statutes, 574, sec. 16.</p> <p>cited Rev. Stat., 571, sec. 6; Act March 10, 1854, Sess. Acts 1853-4, p. 176; Rev. Statutes, 576, art. 12, secs. 1, 2, and 3 ; lb., 577., sec. 4.</p>

<p>CASE 2 — INDICTMENT—</p> <p>APPEAL FROM M’LEAN CIRCUIT COURT.</p>

CASE 3 — INDICTMENT— ArrEAL FROM FRANKLIN CIRCUIT COURT. cited Rev. Stat., sections 2 and 5, art. 21, page 270-1. cited Grim. Code, sections 343, 345; 16 B. Mon., 339; Rev. Stat., 270, art. 21, sections 1 and 2; Grim. Code, sec. 126; lb., sub-div. 3 of sec. 164; lb., sec. 168; Brcnham vs. Freeman, 17 B. Mon., 607; Criminal Code, sec. 333; lb., sections 1-4; lb., sec. 267; Cluskee vs. Commonwealth, MS. opin. Dec., 1856.

CASE 4 — INDICTMENT— APPEAL FROM FAYETTE CIRCUIT COURT. In this prosecution for a misdemeanor, verdict and judgment for $400 were rendered against the defendant, who appeals. cited Criminal Code, secs. 236, 237; 6 B. Mon., 22; 4 lb., 9.

<p>X. The answer must contain a denial of each allegation of the petition controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. And every material allegation of the petition not specifically controverted by the answer, must, for the purposes of the action, be taken as true.</p> <p>2. The petition set out facts sufficient to constitute a cause of action against the defendants. They answer, and allege that they have “ no knowledge of any of the facts set up in the petition as the foundation of the plaintiff’s claim, and no means of forming a belief, and, therefore, deny them all, and require proof.” Held — That the denials of the answer present no obstacle to the recovery sought by the plaintiff; and that other matters of defense set up in the answer, inconsistent with the facts thus impliedly admitted, are unavailing.</p>

<p>CASE 6 —</p> <p>APPEAL FROM M’LEAN CIRCUIT COURT.</p>

<p>CASE 7 — INDICTMENT—</p> <p>APPEAL FROM MUHLENBURG CIRCUIT COURT.</p> <p>cited Jane vs. Commonwealth, ante; Rev. Slat., 253; Starkie Ev., part 3, secs. 87, 75, 74, 77 ; lb., part 2, secs. 25, 26 ; Swift’s Evidence, pages 135, 137; Wharton’s Am. Crim. Law, page 310; 1 Chitty’s Crim. Law, 621, 622; 2 Starkie Ev., page 48, Sf-c., part 4; 2 Russell on Crimes, page 645, Sfc.</p> <p>cited Criminal Code, secs. 226, 237; 2 Russell on Crimes, 7th Amer. from 3d London ed-., pages 732, 930; Greenleaf Ev., 3d ed., sections 455, 456.</p> <p>cited Criminal Code, sec. 334; Civil Code, sec. 661; Wharton’s Amer. Crim. Law, sec. 712.</p>

<p>1. That the boundary and jurisdiction of the State of Kentucky rightfully extend to low-water mark on the western or northwestern side of the river Ohio must now be considered as settled. (5 Wheaton, 375; 4 J. J. Mar., 158; Rev. Stat., chap. 8, secs. 1, 2, and 3, page 219.)</p> <p>2. The jurisdiction of the county of Campbell extends to low-water mark on the Ohio side along the entire line of the front of said county on the Ohio river; and one who commits an offense against the laws of Kentucky on said river, within the jurisdiction of said county, may be indicted and convicted therein.</p> <p>3. Quaere. Under the 11th section of the enactment known as the compact with Virginia, has the State of Ohio jurisdiction concurrent with Kentucky over so much of the Ohio river as flows between them?</p> <p>4. M. was indicted by the grand jury of Campbell county for the offense of unlawfully solemnizing a marriage. The defendant was a justice of the peace for Cincinnati township, county of Hamilton, State of Ohio. By the laws of Ohio, justices of the peace were authorized to solemnize marriages within the jurisdiction of that State, subject to its laws, which require a license to the parties marrying. The marriage was solemnized on the ferry-boat, midway on the Ohio river between Newport and Cincinnati. The defendant was not authorized by any county court of Kentucky to solemnize the marriage, nor had the parties obtained license. He claimed that by the laws of Ohio he was authorized to solemnize the marriage, and that under the 11th section of the compact with Virginia, Ohio has jurisdiction concurrent with Kentucky over the river. It did not appear that Ohio bad ever, by its legislation, assumed, or claimed, or asserted jurisdiction, exclusive or concurrent, over the place where the marriage was solemnized. Held — That M. was guilty of an offense against the laws and within the jurisdiction of Kentucky, and that the circuit court of Campbell county properly indicted, tried, and convicted him.</p>

CASE 9 — INDICTMENT— APrEAL EROM m’lEAN CIRCUIT COURT. cited Rev. Slat., 639, see. 3 ; lb'., 247, sec. 26; lb., 244, sec. 10. cited Rev. Stat., chap. 93, art. 7, sec. 3 ; 1 Bishop’s Grim. Law, sec. 85, p. 81; lb., chap. 21, sec. 455; 4 Blackstone, 228, side page, Chilly's ed.; Lb., chap. 3. cited Rev. Stat., chap. 28, art. 1, secs. 10, 26; lb., chap. 28, art. 3, sec. 4; lb., chap. 93, art. 7, secs. 1,2, 3,4; lb., 190, sees. 16, 17; Grim. Code, sec. 125.

CASE 10 — PETITION ORDINARY — APPEAL FROM TAYLOR CIRCUIT COURT. Mills and Colwell were sued for money due by account. Summons was served upon Mills, who made defense. The plaintiffs obtained an attachment in the action upon the ground that Colwell so absconds and conceals himself that a summons cannot be served upon him, and that he has left the State with intent to defraud his creditors. Defense was made for Colwell by attorney appointed by the court.

<p>CASE 11 — PETITION EQUITY —</p> <p>ACTUAL FROM MADISON CIRCUIT COURT,</p> <p>cited 1 Cruise's Digest, 162; 7 Dana, 174; 3 Bacon's Ab., 224,' 226; Coke Littleton, 36 B.; Rev. Statutes, art. 4, sec. 7, page 393 ; lb., 281, sec. 13 ; 41 Law Library, Macpherson on Infants, 532-3; 16 B. Mon. 551.</p> <p>cited Rev. Stat., art. 4, sec. 7, page 393 ; Cousin's Dig., vol. 1, tit. 7, chap. 1, sections 7 to 21; 16 B. Mon., 469 ; 5 Mon., 57; 6 Dana, 206.</p>

<p>1. In all suits for divorce and alimony the husband is bound to pay the costs of each party, including a reasonable compensation to the attorneys of the wife, no matter what the result of the suit may be, or by what cause it may have been terminated, unless two things are made to appear in the action — (1) that the wife is in fault, and (2) that she has ample estate to pay the costs — there must be a concurrence of the two conditions. . That the wife died before a trial of the action does not avoid this liability of the husband.</p> <p>2. In such case the attorney’s fee, with the other items of cost, may be fixed and ascertained by the court in which the action was brought, even after the death of the wife, or the termination of a suit by a judgment; and upon the husband refusing, without sufficient cause, to obey the order of the chancellor and pay the same, he may be proceeded against by attachment for contempt.</p>

<p>1. The statute relating to forcible entries and detainers does not affect the common law right of entry, when exercised in a peaceble manner, except so far as the statute itself furnishes a remedy to regain the possession. A person having the right to enter, who makes an entry in pursuance of that right, can only be removed by a writ of forcible entry and detainer. (7 J. J. Mar., 604.)</p> <p>2. A party cannot maintain an action to recover land on a mere naked possession, where the defendant who enters and ousts that possession has a legal right to enter thereon. It is only where the defendant enters tortiously and without authority, that a plaintiff can maintain an action against him on such prior possession. The principle is, that possession is prima facie evidence of title, and that, consequently, he who is in possession may, by proof of that fact alone, maintain an action against a defendant who has deprived him of that possession wrongfully. Having the possession, he has a right to retain it against every one except the person who is legally entitled to it.</p> <p>3. Defendant and A. claiming a tract of land jointly, were in possession by their tenant, who, being directed by A. to abandon the possession so far as he was concerned, surrendered it to the plaintiffs. Afterwards defendant entered and regained the possession. The plaintiffs sued to recover the land. Neither party exhibited any title except such as is conferred by possession. Held — That the plaintiffs could not recover.</p>

<p>CASE 14 — PETITION EQUITY —</p> <p>APPEAL PROM WAYNE CIRCUIT COURT.</p> <p>cited 2 Kent, 444-5; 2 Wharton, 17; 3 P. Williams, 356; 2 Kent, 439; 3 Mon., 34.</p>

<p>1. A chose in action, which has accrued to the wife during coverture, and which the husband can reduce into immediate possession, can be subjected to the payment of his debts, at the instance of one of his creditors," in a proceeding against the husband and wife as non-residents.</p> <p>2. In such case the wife may interpose and establish her right to an equitable settlement; but it does not devolve upon the creditor to allege that she has no such right. When, being a party to the action, she fails to claim a right to a settlement, the presumption is tiiat no such right exists.</p>

<p>CASE 16 — FORCIBLE ENTRY —</p> <p>APPEAL FROM m’lEAN CIRCUIT COURT.</p>

<p>CASE 17 — MOTION—</p> <p>APPEAL PROM MARION CIRCUIT COURT.</p> <p>cited Rev. Stat., sec. 4, pp. 329, 330; 1 Marsh., 429; 1 Metcalfe, 160 ; 17 B. Mon., 113.</p> <p>cited Rev. Stat., sec. 4, page 329.</p>

<p>CASE 18 —</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>cited 18 B. Mon., 8; 9 lb., 548; Rev. Stat., 173, sec. 11'; lb., 174, secs. 1 and 2 ; 2 Bibb, 554; 3 Dana, 600; 2 Story Eq., 572-3; 2 Pr. Wms, 118, 109, 119, 562; 1 lb., 74; 1. Johns. Chy. Rep., 99.</p>

<p>1. A debtor who surrenders in writing a tract of land to be sold by the sheriff under a void execution against him, is not estopped to controvert the title of the purchaser.</p> <p>The sale and sheriff’s deed thereunder are void, and such surrender imparts no validity to them. (1 Met., 169.)</p> <p>2. In such case, the purchaser having paid the amount of the execution, and thereby satisfied the debt which the defendant in the execution owed to the plaintiff therein, the defendant is bound in equity to reimburse him. And if the purchaser be in possession of the land, he is entitled to a lien upon it for the amount.</p> <p>3. Where, in such case, the purchaser at the sheriff’s sale is sued for trespass by the defendant in the execution who is insolvent, he may set up in his answer to the action the purchase money paid by him, as an equitable set-off against any judgment for damages on account of the trespass which may be obtained against him therein, not, however, with the effect of suspending the trial of a legal issue. The court should order the equitable issue to be transferred to the equity docket, leaving the claim for damages to be tried by a jury in the ordinary action, and suspending any judgment which may be obtained therefor until the determination of the equitable issue. For improvements upon the land made by the purchaser, after the action was brought, the purchaser is not entitled to relief.</p>

<p>1. In an action to recover for the loss of a valise and its contents which had been placed in the custody of the defendant at his tavern by the plaintiff as a guest, the latter is not a competent witness to prove the contents of the valise or their value. (Civil Code, sec. 670.}</p> <p>2. Innkeepers are bound by law to take not merely ordinary care, but uncommon care, of the baggage of their guests. And it is not necessary that the baggage should be in the innkeeper’s special keeping; but it is generally sufficient that it is in the inp / under his implied care.</p> <p>3. The innkeeper may be exonerated by showing that the guest has taken upon himself exclusively the custody of his own gfoods; but even a request by him that they shall remain in some particular place in the inn, the place so designated not being in his exclusive possession, but under the control and supervision of the innkeeper, will not discharge the latter from his liability for the goods if they be lost.</p> <p>4. Unless the innkeeper has given his guest notice that he will not be responsible for the goods if they are left in the public room, his liability still continues. The mere exercise of the choice of a room or other place by the guest, which is not objected to, will not discharge the innkeeper from his general responsibility if the guest does not thereby acquire an exclusive possession of the room or place.</p> <p>5. An innkeeper, as his guest was about to go to bed, remarked to him that he had better take his valise to his room, to which he replied it was not necessary, that his valise would be safe in the bar-róom, where it was allowed to remain; and on the next morning it was gone and could not be found. Held — That the innkeeper was liable for its loss.</p>

<p>CASE 21 — EQUITY—</p> <p>APPEAL FROM WASHINGTON CIRCUIT COURT.</p>

<p>1. When an attachment has been levied, and the defendant has executed the bond with security authorized by tbo Civil Gode, (secs. 242,243,) the attachment is discharged by operation of law, and the obligors in the bond are bound unconditionally to perform the judgment of the court in the action. In an action to enforce the bond neither the sufficiency of the grounds for obtaining the order of attachment, nor the liability of the property levied on, can be made a subject of inquiry.</p> <p>2. That the property attached belonged to the surety in such bond, who offered to the sheriff the bond required by section 235 of the Civil Code, which he refused to accept, or to surrender the possession of the property, unless the surety would execute the bond authorized by sections 242, 243 of the Code supra, which lie-was thus coerced to execute, and which he executed, not then understanding its legal effect, does not exonerate him from liability upon it. [He might have presented liis claim to the property in the action in which the order of attachment was obtained, or have brought an action against the sheriff to have recovered the possession of it, under the provisions of chapter 2, title 8, of Civil Code. Argu.]</p> <p>3. Duress, according to its legal signification, is personal restraint, or fear of personal injury, or imprisonment. The withholding of a man’s property illegally docs not place him under fear or duress.</p>

<p>1. The two subscribing witnesses to a will testified that the draftsman of the instrument wrote and subscribed their names to it, each of them “ holding the pen as the draftsman wrote their respective names,” neither of them being able to write. They also testified that they were unable to identify with certainty the paper in contest as being the same so subscribed by them; and, on hearing the paper read, they both expressed the opinion that, as to one of its provisions, it was different from the provisions of the paper which they heard read at the time they witnessed it. The draftsman proved that he wrote the paper in contest, and that it was the identical paper which was executed and acknowledged by the testator.as his will, and which was subscribed by the two subscribing- witnesses in the manner above stated. Held — To be sufficient proof of the execution and publication of the will.</p> <p>2. A literal adherence to the words of the statute requiring that the witnesses “ shall subscribe the will with their names in the presence of the testator ” is never exacted, and a substantial conformity with the spirit of the.statute is all that reason or sound policy requires.</p> <p>3. One who is constituted by a will a mere trustee for one of the devisees is a competent witness to prove facts necessary to establish the instrument.</p>

<p>1. It is well settled that the inferior court must be presumed to have done right until the contrary appear. Everything necessary to sustain its judgment will be presumed which is not inconsistent with the facts stated in the record. The legal presumption is always in favor of the correctness of its decision. (4 Dana, 336; ó lb., 533.)</p> <p>2. Where the defendant fails to appear at the trial, and the action is founded on contract, the court has a right to try the cause and render a judgment.</p> <p>3. Upon an appeal to the court of appeals in a case where no petition is copied into the record from the circuit court, yet the summons issued by the clerk of the court below, served on the defendant, commanded him to answer a petition which had been filed against him, and the account which was filed with the petition is copied and made part of the record, and the judgment states that the debt claimed in plaintiff’s petition is the amount adjudged against the defendant. Held — That the record contains enough to sustain the judgment.</p>

<p>CASE 25 — PETITION EQUITY —</p> <p>APPEAL FROM FLEMING CIRCUIT COURT.</p> <p>cited 10 B. Mon., 104; 4 Dana, 247 ; 7 B. Mon., 406; 16 lb., 283 ; 4 J. J. Mar., 102.</p> <p>cited Rev. Stat., 628, sec. 6; Prater vs. Pines, fyc., MS. opinion January 14, 1859; 2 Bibb, 298; 3 B. Mon., 60; 5 Dana, 207; 8 B. Mon., 471.</p>

<p>CASE 26 — PETITION EQUITY —</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>In 1858 Wintersmith and Young recovered judgment against Conway, upon a note executed in 1849. Execution issued, which was levied “ upon the entire interest of said Conway in the drug store of Pointer & Conway, in the town of Owensboro;” and at the sheriff’s sale Wintersmith and Young purchased at the price of $30, in part satisfaction of the debt, and, as to the remainder thereof, the execution was returned “ no property found.” Conway had owned the drug store, but in June, 1857, entered into a contract of partnership with Pointer! This action in equity was brought by Wintersmith and Young to recover one half of the store, to which they contend Conway was entitled, and for a sale of the store and division of the proceeds. They also sought relief by the amended petition mentioned in the opinion. Their right to recover was resisted upon the grounds which sufficiently appear in the opinion. Upon the hearing the circuit court dismissed the plaintiffs, and they have appealed.</p> <p>cited 8 B. Mon., 485; 8 Dana, 288; Story on Partnership, secs. 54, 49, 101, 311; 7 Dana, 368; 1 Smith’s Leading Cases, 976; I'b., 979, 982, 984; Collyer on Partnership, secs. 385, 386; 1 Met., 19; lb., 145; Hill on Trustees, top page 197, side page 144; 2 Brochenbrough, 133, 153; 1 Am. Lead. Cases, 463.</p>

<p>1. The Civil Code confers jurisdiction upon justices of the peace in actions for the recovery of money and personal property, where “ the matter in controversy” does not exceed fifty dollars. (Sec. 29.) In determining the extent of the matter in controversy, the interest is always computed. (18 B. Mon., 225; Harris vs. Barker, MS. opin. Dec., 1857.)</p> <p>2. The circuit court has no jurisdiction to try causes upon appeals from quarterly courts over which the quarterly courts themselves have no jurisdiction.</p> <p>3. The amount in controversy was over fifty dollars; the justice of the peace dismissed the warrant, and the plaintiff appealed to the quarterly court, which likewise dismissed him; he then appealed to the circuit court, which rendered judgment in his favor. Held — That the action of the justice and of the quarterly court was correct, and that the circuit court should have dismissed the appeal for want of jurisdiction.</p> <p>4. In such case the submission of the law and facts to the court did not operate as a waiver of the objection upon the score of jurisdiction, especially as the judgment was excepted to.</p>

<p>1. Plaintiff’s petition alleges that the defendants “ falsely and maliciously procured an order from the county judge of Taylor county, suppressing the plaintiff’s tavern until the next ensuing county court day,” but failed to allege in terms or in substance that the order of suppression was procured without probable cause. Held, upon demurrer, that the petition is insufficient. It should allege the absence of probable cause.</p> <p>2. Where, in such case a record made part of the petition discloses the fact that the order restoring the plaintiff to his privileges as a tavern-keeper was appealed from, and it is not alleged that he has been finally acquitted of the charge, it is also a fatal defect.</p>

<p>CASE 29 — PETITION EQUITY —</p> <p>APPEAL FROM HARDIN CIRCUIT COURT.</p> <p>cited 2 Jarman on Wills, top pages 19, 51, 52, 53; 9 Dana, 1; 9 B. Mon., 204;</p> <p>cited 4 Lift., 349; 12 B. Mon., 115.</p>

<p>CASE 30 — PETITION EQUITY —</p> <p>APPEAL FROM BULLITT CIRCUIT COURT.</p> <p>cited 3 Bouvier’s Institutes, page 266.</p> <p>cited 1 /. /. Mar., 25; 14 Johnson, 193; Civil Code, sec. 123; 2 Blackstone Com., 296; 1 Sheppard’s Touchstone, 55; 1 Mar., 112; 17 B. Mon., 645 ; Drake vs. St. Magdalen Society, MS. opin. Oct., 1856; Bodley’s heirs vs. Morris, MS. opin. June, 1857.</p>

<p>1. A purchaser of personal property at a sale by administrators of the estate of their intestate, cannot, in an action against him by the administrators upon the note executed to them for the purchase money, rely, by way of counter claim, upon the fact that one of the administrators had converted a part of the property to his own use after the sale was made.</p> <p>2. In such .action, however, where one of the administrators claimed part of the property as his own, and denied that the purchaser had acquired any right to it by his purchase, the purchaser might proceed against him by cross petition to recover of him in his individual character for the illegal conversion of the property.</p>

<p>' 1. The law is well settled that the condemnation of land for a turnpike road invests the company with no greater interest than the mere right to use the land for the purposes of the road. The company own the road, but not the ground over which it passes, and their, ownership of the road does not vest in them nor take from the owner of the land any.right but such as is essential to the enjoyment of their own rights and franchises. (3 B. Mon., 517.)</p> <p>2. A turnpike company, having the right under their charter to make such excavations, fills, and embankments, as the proper construction of their road according to its prescribed grade and width render necessary, may, as incidental to this right, lawfully quarry and remove stone and earth from one point to another within the lines of the road, and from the lands of one person to the lands of another. But they have no such right to the quarries and soil under and within the space occupied by the road, for the purposes of repairing it, although the road upon which the turnpike was built may have been used by the public for more than twenty years as a public highway.</p> <p>3. The proprietor of land over which a turnpike road passes retains his exclusive ¡right to the land, and to all mines, quarries, springs of water, &c., and the right to use the same for every purpose not inconsistent with the public right of way, and with the rights and franchises of the corporation. (3 Kent, 432.)</p> <p>4. Independently of the general principles supra, the faet that the turnpike road charter and the Revised Statutes provide for the condemnation of quarries, beds of gravel or stone, earth, timber, or other materials necessary to be used in repairing the road, conclusively repels the claim of the company to such material for the purposes of repairing the road.</p> <p>5. An action to recover damages for quarrying and removing stone, soil, &c., from the bed of a turnpike road for the purpose of repairing the road, may be maintained by the owners of the reversion in fee of the land upon which the road is built; but for the injury to the possession occasioned by placing quarried stone upon land adjacent to the road, and afterwards removing the same, the action must be by the tenant in possession of the land, and the act of 1854 does not apply.</p>

<p>CASE 33 — PETITION ORDINARY —</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT.</p> <p>cited 2 Bibb, 404 ; 5 Litt., 42.</p>

<p>1. In an action on a bail bond executed by a party in custody under an order of arrest, to enforce the liability of the bail, it is necessary that the petition should allege that the bond was executed in the presence of the sheriff or other officer authorized to take bail. (Civil Code, sec. 190; 4 Bilb., 450.)</p> <p>2. The requirement that the bond, when accepted, shall be returned to the clerk’s office, is directory to the sheriff, and his failure to comply with it would not defeat or impair the rights of the obligee.</p> <p>3. The petition must also allege that the judgment had not been paid or satisfied. An averment that judgment had been obtained against the principal, that he had not surrendered himself or been surrendered by his bail, and that execution had issued and been returned “not found,” is insufficient.</p> <p>4. That execution upon the judgment against the principal was returned “ not found” before the return day thereof, does not prejudice the bail, since he is not thereby prevented from surrendering the defendant to the sheriff by the return day of the summons in the action against the bail, which surrender exonorates the bail. (Civil Code, sec. 200.)</p>

<p>CASE 35 — PETITION ORDINARY —</p> <p>APPEAL FROM RUSSELL CIRCUIT COURT.</p> <p>cited Lift. Sel. Cases, 223; 4 B. Mon., 229; 10 lb., 153; 3 Mar., 70.</p> <p>cited. Constitution Ky., art. 8, sec. 11; Rev. Stat., 614, sec. 5; Peters' C. C. R., 429 ; 1 Met., 138 to 145.</p> <p>cited chapter 14, Civil Code; Rev. Stat., 296, sec. 4; lb., 295, sub-sec. 8; Civil Code, secs. 532 to 538; 1 Met., 533.</p>

<p>In an action to recover the possession of specific personal property, the plaintiff, upon filing the affidavit required by section 208 of Civil Code, and executing bond, obtained possession thereof. His right to the property was controverted by the defendants, and upon the trial the jury returned this verdict: “ We of the jury find for the defendants.” Thereupon the court rendered judgment for a return of the property, or for ninety dollars, being the value of the property as proved upon the trial. Held— That the jury should have assessed the value of the property, and their omission to do so makes the verdict fatally defective, and the judgment rendered thereon is erroneous. ( Civil Code, sec. 360.)</p>

<p>1. Whenever an officer in good faith, and in the exercise of his official discretion, doubts whether personal property levied upon by him under execution is subject to levy or sale, the law gives him the right to'demand the bond of indemnity required by section 709 of the Civil Code. This right is not confined to any particular class of oases; and the existence of such a doubt is the sole condition upon which the right depends.</p> <p>2. The sheriff’s return upon, an execution showed that in the action in which the judgment was rendered, process had not been served on the party whose property had been seized by him, but on another person of the same name, and that the levy was made with the understanding that he was to be indemnified by the plaintiff before selling. Upon motion for a rule against the sheriff to compel him to make the sale: Held — That he was justified in doubting whether the property was subject to the execution, and in demanding of the plaintiff a bond of indemnity before he would proceed to sell.</p>

<p>CASE 38 — PETITION EQUITY —</p> <p>APPEAL* PROM LOUISVILLE CHANCERY COURT.</p> <p>cited Story’s Eq., sec. 1373 ; 2 Leading Cases in Equity, part 2, 404, 394, (ed. 1852 :) 4 Mon., 493 ; 1 J. J. Mars., 397 ; 4 Beav., 379 ; lb., 383 ; S. C., 6 Beav., 110; lb., 118; 2 Leading Cases in Equity, part 2, 360; 17 Wend., 422; 5 Peters, 624; 1 Eng. Law and Eq., 1; 14 111., 20; Parsons on Mer. Law, 67, note 3 ; 5 Hill, 640; 1 Fon. Equity, 39, book 1, sec. 7, note w; 1 Wash., 279; 4 Bibb, 76; 10 Ohio, 305; 17 lb., 105 ; 22 Conn., 548; 9 B. Mon., 7; 4 Grecnlcaf’s Cruise, 272, title 32, chap. 21, sec. 71; Rev. Stat., 395; lb., 593; Story’s Eq., secs. 1380-1-2-3 ; 1 Leading Cases in Equity, 412-14; 5 B. Mon., 116 ; 14 lb., 145-6; 5 J.J. Mar., 227 ; 6 Serg. # R., 466; 10 Barr, 423 ; 19 Conn., 273, 282 ; 3 Iredell’s Eq., 414, 421 ; 19 Ala., 373 ; -4 Dana, 610 ; 1 Smedes Mar. Chy., 647, 651; Hill on Trustees, 420, note 1; 7 Met., 240 ; 2 Dev. Eq., 430 ; 10 Barr, 432; 7 Term Report, 648; 1 Wharton, 514; 2 Leigh, 356; Williams on Real Property, 132-3-4, 130, 136, note 1; 1 Sanders on U. and T., 365; lb., 69 ; 1 Evans’ Statutes', 422; 2 Black. Com., 77; 1 Statute Law, 443; Revised Statutes, 196; 1 J. J. Marsh., 243-4; 1 Lomax on Real Property, 188; 1 Greenleaf’s Cruise, 381, title 12, chap. 1, sec. 4, note 1; Story’s Equity, 1378 ; 1 Fon. Eq., 99, book 1, chap. 2, sec. 6, note o; Reeve’s Domestic Relations, 108, 110 ; 16 B. Mon., 642; 1 J.J. Mar., 390; 4 Bibb, 76.</p>

<p>CASE 39 — PETITION EQUITY —</p> <p>APPEAL FROM MUHLENBURG CIRCUIT COURT.</p> <p>cited 12 B. Mon., 329; 14 lb., 247.</p> <p>cited Clancy on Husband and Wife, p. 262; 14 B. Mon., 145; lb., 247; Rev. Stat., 395, sec. 17.</p> <p>cited 17 B. Mon., 113.</p> <p>cited 17 B. Mon., Ill; 3 Bibb, 244; 3 B. Mon., 277 ; 5 lb., 117 ; 8 Yerger, 33 ; 3 Gill $ Johns., 504; 4 Desau., 458; 2 Brights Husband and Wife, 210, 214; 4 Dana, 610 ; 7 Vin. Ab., 95; 3 Atk., 399 ; 3 Br. C. C., 381; 5 Vesey, 540; 2 Cox Rep., 414; 1 Dana, 92; 7 Dana, 166; 2 B. Mon., 279,280.</p>

<p>CASE 40 — PETITION ORDINARY —</p> <p>APFEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>cited Rev. Stat., sec. 23, page 616.</p> <p>cited Rev. Stat., 326; lb., chap. 91, sec. 8; lb., chap. 36, art. 13, sec. 8) lb., chap. 36, art. 14, sec. 2; lb., chap. 36, art. 14, sec. 4; 2 Bibb, 186 ; 3 lb., 359 ; 1 Mon., 146; 5 /. /. Mar., 361; 1 lb., 553 ; 4 lb., 203; 2 lb., 32 ; 4 Litt., 245.</p>

<p>1, A report of commissioners appointed to value the estate of infants, in a proceeding to sell their real estate, which fails to state that the property therein enumerated is all the estate owned by the infants, is not sufficient to authorize the sale. (Rev. Stat., art. 3, chap. 86, page 592.)</p> <p>2. Their report must state that “the interest of the infants requires the sale to be made." A statement “ that if the property above mentioned was sold and the proceeds properly invested it would redound to the interest of said heirs,” will not give the court jurisdiction to decree the sale. (Rev. Stat., art. 3, chap. 86, page 592.)</p> <p>3. Nor has the court jurisdiction unless the bond executed by the guardian of the infants stipulate for a faithful discharge of all his duties under the statute. A bond stipulating that the guardian shall “ well and truly perform the decree of said court in the premises, and shall, from time to time, obey all orders which may be made in the premises, and shall faithfully collect and disburse all moneys arising from the sale of said property as the same shall become due,’) is fatally defective. (Rev. Stat., art. 3, chap. 86, p. 592.)</p>

<p>1. Persons are not incompetent as witnesses merely because they are parties to the action; but if they are parties to the issue, then they are incompetent to testify either in their own favor or in favor of those united with them in the issue; or, if they are not parties to the issue, yet if they are interested in it, whether they are parties to the action or not, they are also incompetent to testify in their own favor.</p> <p>2. That a person is a party to the issue, of itself renders him incompetent to testify either for himself or in behalf of those who are united with him in the issue, and his competency does not depend upon the question of interest.</p> <p>3. Defendants who rely upon the same matters of defense, although by separate answers, are parties to the issue, and one cannot testify in behalf of the other, even where not inoompetent on the score of interest.</p>

CASE 43 — PETITION EQUITY — ACTEAL FROM SHELBY CIRCUIT COURT.

CASE 44 — PETITION ORDINARY — APPEAL PROM CAMPBELL CIRCUIT COURT. Two partners are sued upon a note, under seal, to which their names are signed by one of them, against whom judgment is rendered by default. The other resists a recovery either upon the note or the consideration for which it was executed, which was set out in the petition. Judgment against him, and he appeals.

CASE 45 — PETITION ORDINARY — APPEAL FROM JEFFERSON CIRCUIT COURT. cited City Charter of Louisville, (Sess. Acts 1850-1,) art. 3, secs. 4, 6, 8, 13 ; lb., art. 4, secs. 1, 8; lb., art. 1, sec. 1; lb., art. 9, sec. 1; 10 Paige, 223; 1 J. J. Mar., 206; Constitution Ky., art. 2, secs. 2, 3, 20. cited 9 Johnson, 147; 6 Cowen, 23; 12 Mod. R., 256; % Kent’s Com., 295; Angelí ¿y Ames on Corporations, page 274; 3 Litt., 459; 1 Mon., 86.

<p>CASE 46 — PETITION EQUITY —</p> <p>APPEAL EROM MADISON CIRCUIT COURT.</p> <p>cited Story on Bailments, secs. 288, 297; Parsons on Contracts, p. 595; Revised Statutes, p. 197, sec. 11.</p> <p>cited Story on Bailments, sec. 290, 297 ; 5 Johns., 260; 2 Kent, 581; Caine’s Cases, 200; 2 Marsh., 56; 1 Parsons, pp. 594 — 5.</p>

<p>CASE 47 — PETITION EQUITY —</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>cited 3 B. Mon., 636 ; 10 Wendell, 86; 20 John., 102, 637; 6 Rill, 98.</p> <p>cited 9 Barb., 158; 4 Saunders, 665; 3 Selden, 478; 5 Sandford, 556 ; 2 Duer, 674; 7 Barb., 85; 1 Duer, 265; 14 Barb., 533; 5 Pr. R., 14; 10 lb., 309; 3 Code Rep., 64; 4 Pr. R., 347; Story on Agency, secs. 308, 380; 16 Peters, 1; 3 Kent's Com,., 81; 5 John. Cliy Rep., 54; Story on Prom. Notes, p. 215, note 1; Story on Bills, 183, 192 j Smith’s Mercantile Law, 321; 3 Sandford, 324 ; 11 Ohio, 172; 14 B. Mon., 556; 3 Cush., 162; 11 New Hamp., 661; 8 Ala., 669; Iredell, 107; 1 Zabs. N. J. Rep., 665; 1 Smith Ind. Rep., 89; 3 Mon., 72; 1 Mass., 80.</p>

<p>CASE 48 — PETITION ORDINARY —</p> <p>APPEAL PROM BOURBON CIRCUIT COURT.</p> <p>cited Hardin 163; 12 B. Mon., 129; 1 Mon., 215; 1 Dana, 364; Civil Code, sec. 364; 3 Bibb, 50; Story on Sales, secs. 299,300, 389; 14 B. Mon., 413; 7 Dana, 59; 1 Parsons, 441, note t; Story on Sales, p. 272, note, and 275-6; 2 Kent, 496; 2 Comstock, 226; 2 B. Mon., 54; 3 Mon., 294; 6 B. Mon., 462 ; 2 Marsh., 340 ; Hardin, 539 ; 2 Bibb, 542; 3 Dana, 54; 8 B. Mon., 192; 10 lb., 256; 7 lb., 566; 9 lb., 373 ; 1 BouvieCs Die., 380; 1 Chitty Pleadings, 106 ; Peck, 202; 10 Yerger, 458 ; 6 lb., 332; 1 J. J. Marsh., 174; 2 Scam., 313 ; 18 B. Mon., 61; Rev. Stat., 420 ; 4 Mon., 451; 6 lb., 142 ; Chitty on Contracts, 375; 7 Dana, 60; & East, 614; 4 Camp., 237; 11 East, 210 ; 2 Parsons on Contracts, 67.</p>

<p>1. Sureties sued upon a note rely that when the principal applied to them to sign it as Ms sureties, they agreed to sign, and did sign it, upon the condition that two other solvent persons would also sign it, of which condition and its breach plaintiffs had notice before the note was delivered to them. Held — That it is a valid defense.</p> <p>2. Demurrer to defendants’answer sustained, and thereupon judgment against them in the action. That they did not at the time except to the decision of the court upon the demurrer, does not prevent them from availing themselves upon appeal of the error committed in sustaining it.</p>

<p>CASE 50 — PETITION EQUITY —</p> <p>ATC>EALS FROM LOUISVILLE CHANOERY COURT.</p> <p>cited 5 B. Mon., 595; 1 Mars., 321.</p> <p>cited 18 B. Mon., 106; 5 lb., 590 ; 1 Bibb, 144; 4 lb., 188 ; Civil Code, secs. 789, 397, 400.</p> <p>cited 2 Story's Eq., p. 735, and cases cited in note 3 ; Story's Eq. PI., p. 379, sec. 485; 1 Dana, 278; Civil Code, sec. 800.</p>

<p>CASE 51 — MOTION—</p> <p>APPEAL PROM HENDERSON CIRCUIT COURT.</p> <p>cited 3 Johns. Ch. R., 291; 7 Ves.,jr., 34; 10 lb., 474; 4 John., 565; 4 B. Mon., 49 ; 3 Dana, 620; 2 B. Mon., 407.</p> <p>cited Civil Code, sec. 579; 8 Dana, 12; 5 lb., 11; 3 Bibb, 80 ; 6 Mon., 248; 3 Dana, 181; 5 B. Mon., 425; 2 lb., 410; 3 Bibb, 185; 1 Dana, 185; 3 Marsh., 619 ; 3 Dana, 614.</p> <p>cited Todd vs. Todd’s adminm istrator, MS. opin. Winter Term, 1853; Pell’s administrator vs. Marsh’s heirs, MS. opin. Oct., 1858 ; Wiley vs. Clark, MS. opin. Sept., 1854.</p>

<p>CASE 52 — PETITION ORDINARY —</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>cited 2 Sess. Acts 1857-8, page 270; 9 B. Mon., 335; 15 lb., 498; 17 lb., 230-2; Civil Code, sec. 360; Young vs. Parsons, ante.</p> <p>cited 9 B. Mon., 330.</p>

<p>1. A new trial should not be granted because of excessive damages, especially in actions of slander and the like, unless the damages should be so great as to strike the mind at first blush as having been superinduced by passion or prejudice. (4 Lilt., 118; 2 Marsh., 365; Civil Code, sec. 369.) Here the court refused to disturb upon that ground a verdict, in slander, of $4,000.</p> <p>2. In an action of slander, when words, oral or written, uttered by the defendant, actionable in themselves, other than the publication declared on, are offered in evidence to. prove malice, the court must caution the jury .that they are not to increase the damages on that account.</p> <p>'3. Y. and wife brought an action of slander against L. and wife for slanderous words alleged to have been spoken by Mrs. L. concerning Mrs. Y. The plaintiffs introduced evidence conducing to prove the speaking of the words by Mrs. L., and that they were similar in substance to those contained in an anonymous letter said to have been published by her, and that she had caused it to be written and sent to Mrs. Y. Plaintiffs, after introducing evidence conducing to show its publication, offered the letter in evidence, to which defendants objected. The letter contained libelous imputations against both Mrs. Y. and her daughter. Held — 'That the letter was admissible to show malice against Mrs. Y., but not for any other purpose; that the court should have cautioned the jury that they were not to increase the damages on account of the letter, or give it any effect whatever in estimating the amount of damages, which caution should accompany its admission; and that so much of it as related to the daughter of the plaintiff could not be considered as evidence against the defendants for any purpose.</p> <p>4. In such case an instruction was given to the jury to the effect that the letter in question was only admissible to show malice, and for no other purpose. And in another instruction the jury were told that they had a right to award such damages to the plaintiffs as they thought them entitled to from all the facts and circumstances proved in the case. Held — That the caution to the jury in respect to the effect to which the letter was entitled was not sufficient.</p> <p>5. Errors of the court in granting or refusing instructions, unless excepted to at the time, are not only unavailing for a new trial below, but are likewise unavailing for reversal in the court of appeals.</p> <p>6. An instruction in an action of slander hypothecated upon the belief of the jury “ that the slanderous words set forth in the petition, or any part of them,” were spoken,, but which fails to inform the jury what words set out in the petition were slanderous and actionable, is misleading, especially if the petition contain expressions charged to have been spoken which are not slanderous.</p> <p>7. It is error to instruct the jury “ that if they believe any witness has sworn falsely and knowingly as to any material fact, they are bound to disregard his testimony altogether.” Whenever a person is held competent, and allowed to testify as a witness, the jury are the exclusive judges of his credibility, and may give such weight to his evidence as they may, under the circumstances, think it deserves. (1 Starkie, 454; I Greenleaf, 380.)</p>

<p>CASE 54 — PETITION EQUITY —</p> <p>APPEAL FROM FAYETTE CIRCDIT COURT.</p> <p>cited 1 Story’s Equity, secs. 180-1-2; 3 Vesey, 106; Jb., 309 ; lb., 255-6 ; 2 Brown’s Chan. Rep., 18.</p> <p>cited 18 B. Mon., 260; Civil Code, secs. 125, 126, 128, 129, 130, 690, 691; Rev. Stat., sec. 3, chap. 24, p. 279.</p>

CASE 55 — PETITION EQUITY — APPEAL PROM CHRISTIAN CIRCUIT COURT. The order of sale was made 15th October, 1858. The commissioner’s report of the sale was returned and confirmed April, 1859. cited Rev. Stat., 592 ; 16 B. Mon., 296; 18 lb., 782.

<p>1. Tlie 41st section of the 4th article of the constitution was intended to relate exclusively to such police courts as had been established in any city or town prior to the adoption of the constitution, and fixes definitely and certainly the time and manner of electing the judges, clerks, and marshals of such courts beyond the power and control of the legislative authority.</p> <p>2. The local tribunal created and established by the 12th section of the act of February 28, 1850, which authorizes the governor to appoint “ a judicial officer to be styled the police judge of Owensboro,” with the powers and jurisdiction conferred by that section, is a “police court” within the meaning of the 41st section of the 4th article of the constitution; and the marshal whose duties and.powers are defined by the 11th section of the act, is a marshal of such court, and is embraced by the same constitutional provision, and the legislature has no power to change or alter in any respect, either the time or manner of electing this officer, as definitely prescribed by the constitution.</p> <p>3. Those officers whose qualifications, terms of office, and time and manner of whose election had been prescribed by section 41, article 4 of the constitution, must be excepted out of the operation of the 6th section of article 6. The latter section was intended to refer to all officers of towns and cities whose offices might be created or established by law, after the adoption of the constitution.</p> <p>4. The act of 1854, providing that the marshal of the town of Owensboro shall be elected on the first Monday of April in each year, is unconstitutional. His election must take place at the same time that sheriffs are elected, and he must enter upon the discharge of his official duties at the same time that sheriffs do, and hold his office for the same term.</p> <p>5. A marshal of the town of Owensboro elected at the general election in August, 1858, could not enter upon the duties of his office until the succeeding first Monday in January. (Constitution, art. 4, sec. 41; lb., art. 6, sec. 4.)</p>

<p>CASE 57 — PETITION ORDINARY —</p> <p>APPEAL FROM MERCER CIRCUIT COURT.</p> <p>cited 2 Bibb, 428; Hardin,-184; 12 B. Mon., 329, 330.</p> <p>cited Hardin, 184; 3 Bibb, 346 ;¡ 6 /. J. Mar., 49; 3 Dana, 304; 8 B. Mon., 192; Civil Code, sea 347, sub-div. 6; lb., secs. 587, 369, sub-div. 6; 2 Bibb, 427; 4 J.x J. Mar., 275; 5 Dana, 494; 1 Greenleaf, secs. 74, 75, 76; 1 Bibb, 129; lb., 570; 3Lb., 35; lb., 224; 4 Litt., 259; 4 Mon., '482; 7-lb., 223; 3 J. J. Mar., 421; lb., 442; 1 Mar., 548 ; 1 J. J. Mar.,\ 97; Hyman, Sfc., vs. Livingston, Sfc., Winter Term, 1859; 1 B.~. Mon., 224; 7 Dana, 90; 8 Dana, 319 ; 4 John., 230; 5 lb., 144.:</p> <p>cited Civil Code, sec. 347, sub-divs. 3,6; 3 Bibb, 346; 1 Dana, 325; 1 B. Mon., 241; Bcclcly vs. Brown, MS. opin. Winter Term, 1855; 16 Peters, 539; Civil Code, secs. 587, 663, 855 ; 1 Greenleaf, sec. 469; 1 J. J. Marsh., 449; 3 Bibb, 313; 3 Mar., 397; 1 J. J. Mar., 6 ; 2 lb., 310; 2 Bibb, 64, 211; 1 lb., 241; 3 Litt., 14, 169, 189; 1 Mon., Ill, 272; 8 Dana, 321; 1 Bibb, 303 ; 9 Litt., 169; 2 Mar., 520, 546; 3 J. J. Mar., 61; 4 lb., 399; 6 Mon., 61; 3 J. J. Mar., 717; 6 Dana, 214; 1 B. Mon., 46; 12 lb., 54.</p> <p>cited Hardin, 183; 2 Bibb, 428; 4 J. J. Marsh., 275 ; 3 Bibb, 346; 1 Dana, 325; 1 B. Mon., 241; Civil Code, sec. 347, sub-divs. 3 and 6; lb., 653; 1 J. J. Marsh., 449 ; 3 Marsh., 397; 3 Bibb, 318; 3 J. J. Marsh., 61; 1 B. Mon., 46; 3 J. J. Marsh., 717; 12 B. Mon., 54.</p>

CASE 58 — PETITION ORDINARY — APPEAL FROM CARROLL CIRCUIT COURT. This action was brought by appellants upon the following contract: “We, William Root & Company, have this day sold to G. G. Whitehead, Charles A. Sanders, Wayland Tandy, and William H. Tandy, ten thousand dollars’ worth of whisky at twenty-one cents per gallon.

<p>1. Where all the managers named in an act granting a lottery privilege have died, other persons may be appointed by the court to act as managers.</p> <p>3.See the opinion for the terms of the act granting a lottery privilege for the benefit of Shelby college, the provisions of a contract by which the managers sold said privilege, and the reasons given by the court for holding the sale to be invalid.</p> <p>3. Where a sale of a lottery privilege is made by agents or managers under an authority conferred by the legislature, that authority must be strictly pursued; and if departed from, no acquiescence of the parties to the contract, or the parties interested, can render it valid.</p> <p>4. Purchaser of a lottery franchise under an invalid contract which conferred on him no right thereto, is not entitled to have the consideration refunded that was paid by him under the contract, where he received the benefit of the contract, and realized all the advantages from it that he would have done had it been legal and valid.</p> <p>5. The grant by the legislature of a privilege to raise money by a lottery is a mere gratuity. It is not an act of incorporation; it confers no chartered rights, nor does it amount to a contract. The power of the legislature to repeal the grant, and thereby to withdraw the privilege, where no rights have been acquired under the act by which it was created, nor any liability incurred in consequence of its passage, is clear and unquestionable. But where vested rights have been acquired under the grant before the passage of the repealing law, then, to the extent pf such rights, such repealing law must be regarded as unconstitutional and inoperative.</p> <p>6. Before an act of the legislature repealing lottery privileges in this State was passed, W. had, on the faith of a lottery grant to Shelby college, advanced large sums of money, which were appropriated by him for the benefit of the college; and the trustees of the college had mortgaged to him their rights under the lottery franchise for his indemnity. Held — That W. had a vested right to the use of the grant until from such use the sum was produced which he had advanced for the benefit of the college prior to the passage of the repealing act; and that so far as the repealing statute interferes with or affects this right, it is unconstitutional and inoperative.</p>

<p>CASE 60 — PETITION ORDINARY —</p> <p>AÍPEAL FROM HARDIN CIRCUIT COURT.</p> <p>cited Criminal Code, sec. 33, sub-div. 2; Hawk. P. C., chapter 13, sec. 11; Doug., 359 ; 1 Roll Mr., D., 559 ; Moore, 408 ; 12 B. Mon., 416 ; 16 lb., 200, 396; 17 lb., 156; Rev. Stat., 639, sec. 5; Wharton, 1697, 1700; 8 Smedes fy Marshall, 401; 17 B. Mon., 692; 5 Mon., 552; 7 Mon., 649; 8 Dana, 158; 1 B. Mon., 292; 10 B. Mon., 28.</p> <p>cited Rev. Stat., 640, secs. 10,13; Crim. Code, secs. 32,33,34,43; 8 B. Mon., 282; Crim. Code, secs. 2, 3, 4; Rev. Stat., 640, secs. 10, 12; Wharton’s Crim. Law, 629; 3 Wash. C. C., 209; 4 Binney, 379; 2 East Pleas of the Crown, 708 ; Archbold, p. 361; Crim. Code, secs. 23 to 31; lb., secs. 46, 49, 59, 60; 7 Peters, 141; 12 B. Mon., 410 ; Story on Bailments, secs. 413, 409, 396, 254, 241, 233, 232; 8 Coke Rep., 290; Smith’s Leading Cases, 62; 10 Johnson, 255; 1 Hilliard on Torts, page 114; Amer. Law Reg., Sept., 1859,page 675 ; Rev. Stat., title Execution, article 7,</p>

<p>CASE 61 — PETITION EQUITY —</p> <p>APPEAL PROM HENDERSON CIRCUIT COURT.</p> <p>cited Civil Code, sec. 670, sub-sec. 6 ; 2 Ala. Rep., 88; \\ ^Peters, 86, 95; 18 B. Mon., 128; Hardin vs. Stone, MS. opin., December, 1853; 9 N. Y. Howard Practice Rep., 385; 10 lb., 385 ; 5 Mon., 269 ; 7 B. Mon., 220; 3 Term Rep., 27; 7 lb., 601; 3 Randolph, 316; 3 English {Ark.) Rep., 157; 7 lb., 746; 5 Mon., 57; 6 Mon., 616; 14 B. Mon., 321; 1 Bailey S. C. Rep., 83; lb., 62; 1 B. Mon., 296; 4 Cranch, 292; 2 Condensed Rep., 92; 7 J. J. Mar., 281 ; 5 Humphreys, 133 ; 4 Taunton, 464; 1 Stat. Law, 150 ; Rev. Stat., 193 ; 1 Mon. df Harlan's Dig., 100; Civil Code, sec. 398; 1 Met., 577; lb., 58.</p> <p>cited Civil Code, sec. 670, sub-div. 6; 1 Mar., 294 ; 2 Dana, 156; Greenleaf’s Ev., secs. 386, 402; 4 Dana, 106 ; 5 lb., 382; 9 lb., 43 ; 5 B. Mon., 57; 13 lb., 202; 1 Cranch, 239; Coke on Littleton, 36, (a); Sheppard’s Touchstone, 58, 59; 4 /. J. Mar., 572 ; 1 Mar., 98 ; 1 ,Eng. Law and Eq. Rep., 227; 6 J. J. Mar., 32; 4 Cranch, 219 ; 11 Peters, 86 ; 7 J. J. Mar., 281; 3 Greene, 155 ; 4 Shepley, 140 ; 2 Iredell, 338 ; 3 Ala., 88; 2 Leigh, 159; Minor’s Rep., 103 ; 2 J. J. M.ar., 449 ; 10N. Mon., 266.</p> <p>cited Civil Code, secs. 670-676 ; 1 Grecnlcaf Ev., secs. 347, 391, and notes; 5 Mon., 298; 7 N. Mon., 226; 7 Cranch, 206; 2 Smith’s Leading Cases, 94 and notes; 3 Ran., 316; Rev. Stat., 204,sec. 14; 3 Litt., 74; Perkins Con., sec. 138; Greenleaf’s Cruise Dig., tit. 32, ch. 2, secs. 68-76 ; Blackstone’s Com., 307; Sheppard’s Touchstone, 58, 59 ; 4 Kent’s Com., 496; 2 J. J. Mar., 457, 460; 13 John., 286; Wright vs. Shelby Railroad Co., 16 N. Mon.; 2 Mar., 189.</p>

<p>CASE 62 —</p> <p>APPEAL FROM MADISON CIRCUIT COURT.</p> <p>cited Con. Ky., art. 4, sec. 2; Rev. Stat., 214, 215 ; Civil Code, secs. 15, 16; Crim. Code, secs. 1 to 6; Rev. Stat., 273; 2 J. J. Mar., 575; 1 Wheeler's Crim. Cases, 512; 18 B. Mon., 482; Camper's Reports, 829 ; Bac. Ah., title Attorney, II.; 6 East, 127; 1 Yerger, 228; 1 Michigan Rep., 394; 2 Cranch Cir. Ct. Rep., 379; 9 Wheaton, 529; 19 Howard, 19; Can. Ky., art. 4, sec. 28; Rev. Stat., 229; Sess. Acts, 1853-4, p. 154; Sess. Acts, 1855-6, j?. 128; Civil Code, sec. 367 ; Wright vs. Nichols, 1 Bibb, —; Rev. Slat., 205, 206; Civil Code, secs. 669, 670.</p> <p>cited Bouvier's Law Die., pages 302, 427; Rev. Stat.,p. 206,sec. 25,</p> <p>cited Rev. Stat., chapter Costs, secs. 20.-25.</p> <p>cited Con. Ky., art. 4, sec. 28; Rev. Stat.,p. 229; Act of 1856, relaiiny to changes of venue, Sess. Acts, 1855-6, p. 129; Cowper’s Rep., 827; 1 McCord, 379; Rev. Stat., 229; Bouvier’s Law Die., pages 302, 427; Livingston’s Law Magazine, vol. 3,p. 59; Rev. Stat.,p. 205, sec. 20 ; lb., 206, sec. 25.</p> <p>cited Crim. Code, sec. 342 ; Rev. Stat., 215 ; 1 Sess. Acts, 1857 — 8, y». 62; Rice vs. Commonwealth, 18 B. Mon., 482; 1 Bacon’s Ab., title Attorneys, p. 306; 9 Wheaton, 529; 19 Howard, 9; 1 Hale’s P. C., 646; 1 J. J. Mar., 120-140; .Commonwealth vs. Barry, Hardin’s Rep.; 4 Blackstone’s Com., 284; 1 Bouvier’s Law Die., 302, Contempt, 6.</p> <p>cited 1 Litt. Laws Ky., 560; 1 Stat. Law, 478; 3 Mar., 498; Litt. Sel. Cases, 249; 1 Bibb, 598; Sess. Ads, 1851, p. 352; Civil Code, sec. 908; Crim. Code, sec. 342; 5 Watts <f Serg., 272 ; 19 Law Reporter, 431; 1 Howard, {Miss.,) 303; 9 Wheaton, 529; 9 Ohio, 42; 5 Litt., 289; 4 B. Mon., 500; Rev. Stat., 214; Sess. Acts, 1850, yi. 212; Sess. Acts, 1853, p. 92; 2 Bibb, 96; Sess. Acts, 1857, p. 62; Hardin, 228, 239; 1 Ycrger, 228; 7 Mon., 187; 3 Amer. Law Reg., 193; 2 Cranch’s Cir. Ct. Rep.., 379; 1 Michigan Rep., 392.</p> <p>cited 4 Blackstone, chap. 20, title Summary Convictions; 18 B. Mon., 472; Bacon’s Abr., Williams’ Abr., Bouvier’s, Tomlin’s, and Jacob’s Law Die., Tidd’s Practice, Esp. Nisi Prius, title Attorney; Livingston’s Law Mag., Jan., 1856, p. 9 et seq.; lb., Feb., 1854, p. 200 et seq.; 1 Michigan Rep., 392; Bouvier’s Law Die., titles “ Incompetency’’ “ Judge,” and authorities there referred to; Rev. Stat., 166; Sess. Acts, 1853-4, p. 146; Sess. Acts, 1855-6, vol. 1, p. 129; Sess. Acts, 1857 — 8, p. 62; Crim. Code, secs. 277,348; Civil Code, secs. 366,367,368; Champ vs. Commonwealth, ante, — ; 2 Starkie Ev., page 214 to 219; Rev. Stat., 131; Smith vs. State of Tennessee, 2 Yerger; Rev. Stat., 244, sec. 10; lb., 254, sec, 5; lb., 255, sec. 7; lb., 257, sec. 7; lb., 259, sec. 5; Tidd’s Practice, vol. l,page 59 ; Rev. Stat., sec. 1, art. 2,p. 215 ; Hardin, 228 et seq.</p> <p>cited Civil Code, secs. 15, 16; Grim. Code, secs. 327, 342; 4 Blackstone Com., 282; 2 Bishop on Grim. Law, 212; 2 Hawkins' Pleas of the Crown, 217 ; Sess. Acts, 1857-8, p. 35; lb.,p. 62; Rev. Slat., 166; lb., 229; Auditor vs. Adams, 13 B. Mon.; Civil Code, sec. 367; Criminal Code, secs. 348, 349; 1 Greerdcafs Ev.,sec. 362; Smith vs. State of Tennessee, 1 Yerger; Rice vs. Commonwealth, 18 B. Mon.</p>