Volume 60 — Kentucky Reports

<p>A fine for a breach of the peace, assessed under the statute for suppressing riots) routs, unlawful assemblies, and breaches of the peace, is a legal bar'to a subsequent indictment against the same party for an assault and battery.</p> <p>A transcript of the record of proceedings in a case before a justice of the peace, certified by him to be a full and complete transcript, is admissible as evidence, although the transcript is in the form of a statement made by the justice of what occurred in the case.</p>

<p>Under section 94 of the Criminal Code the court has power to remit the penalty of a hail bond, although a judgment had been rendered upon the bond, which was set aside on the same day, and the remission then made.</p> <p>In such case, in the absence of a bill of exceptions by the Commonwealth, the court of appeals will presume that there was sufficient evidence of the surrender or arrest of tho defendant at the time the remission was made, as required by the section supra, and that it was shown that the remission was just and proper.</p> <p>A party complaining of an abuse of discretion on the part of the circuit court must show, by a proper bill of exceptions, that the abuse was committed. /</p>

<p>An indictment must set forth tile offense with such certainty as to apprise the defendant of the nature of the accusation upon which he is to be tried, and to constitute a bar to any subsequent proceeding for the same offense.</p> <p>An indictment which charges that the defendant suffered certain named persons “to play in a house or on premises in the county aforesaid, then in the occupation and under the control of the said P., a game of cards, at which game of cards, played as aforesaid, money or property was won and lost,” field insufficient upon demurrer.</p>

<p>CASE 4 — INDICTMENT</p> <p>APPEAL PROM BATE CIRCUIT COURT.</p> <p>cited Constitution Ky., art. 6, sec. 2; Rev. Stat., art. 23, sec. 1; Crim. Code, sec. 6; lb. sec. 8; Civil Code, sec. 532; Patterson vs. Miller, 2 Met. 493.</p>

<p>To authorize the reversal of a judgment of conviction for felony, upon the ground that the circuit court erred in admitting important evidence against the defendant, it must appear that exceptions were taken thereto at the time.</p> <p>The court of appeals cannot disturb a judgment of conviction in a criminal caso, for errors in instructing or refusing to instruct the jury unless the record furnishes the assurance that it presents every instrtiction which was given. ( Crim. Code section 335.)</p> <p>A bill of exceptions in a criminal case states: “This being all the evidence and proceedings, the attorney for the Commonwealth asked the court to give the following instructions” — going on to enumerate them — “to each and'all of which the defendant objected, butthe court overruled the objections and the defendant at the time excepted and still excepts. The defendant then asked the court to giYetlie following instructions which the court gave” — going on in like manner to set them out. This being all that is said on the subject of the instructions — held, upon appeal by the defendant, that the bill of .exceptions does not show either in terms, or by any fair deduction from its statements, that it contains all the instructions given by tho court to the jury, and therefore the court of appeals cannot reverse on the ground that the circuit court erred in the instructions recited in the record.</p>

<p>An indictment’for malicious shooting with intent to kill, charged that the defendant, “with a certain pistol which he then and there had and held, feloniously and maliciously shot and wounded one John Bailoy, then and there being, with the intent then and there to kill and murder the said John Bailey/’ but failed to allege that the person wounded “did not die thereby,and that the pistol was “loaded with a leaden bullet or other hard substance.” Held — That the indictment is -sufficient either upon demurrer or upon motion in arrest of judgment.</p> <p>Where the hill of exceptions in a criminal case fails to show that the defendant objected to the instructions asked by the Commonwealth, any error which may hayo been committed by the Circuit Court in giving the instructions complained of must be deemed to have been waived, because not excepted to at the time, and cannot constitute a valid ground of reversal of the judgment of conviction.</p>

<p>Tho court of appeals has no power, in revising the ruling of tho circuit court upon a motion in arrest of judgment, to pronounce an indictment insufficient, or to disturb the judgment thereon, for “any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.”</p> <p>Tho right of the State to declare what shsill and what shall not be sufficient to constitute a valid indictment for a public offense is unquestionable. The 5th article of the amendment to the Constitution of the United States applies only to cases in the United States courts.</p> <p>It is not necessary to the validity of an indictment that it should show upon its face that it had been presented on oath by the grand jury, and, in 'cases of felony, that tho word “feloniously” should be used in charging tho intent with which the offense was committed.</p> <p>An indictment found by a grand jury charges in substance, that “the said Jane, the slave of Ed. Smith, in the county aforesaid, on the 24th day of December, 1857? did wilfully and maliciously and with malice aforethought hill and murder one Jane Porter, a free white woman, by administering to her a deadly and corrosive and destructive poison called strychnine, from the effects of which the said Jane Porter -contrary to tho statute,” &c. It was objected, upon motion in arrest of judgment (1) that the death of the person alleged to have been murdered is not shown to have occurred within a year and a day from the time the poison was administered j and (2) that the malice is charged generally to the killing and not in the administration of the poison, and that no knowledge of the poisonous quality of the drug is charged against the prisoner. Held — that the indictment is sufficient, and substantially em*braces the foregoing requsities.</p> <p>See the opinion in this case for a statement of the requisites of an indictment under the statutes of Kentucky.</p> <p>To authorize the court of appeals to reverse a judgment of conviction in a criminal case for errors in instructions of the circuit court to the jury, to the prejudice of the accused, it must appear from the record that all the instructions given by the court to the jury are contained in the bill of exceptions. It is not, however, necessary for the record to state, in terms, that all the instructions given were contained in the bill of exceptions $ any equivalent expression, or any language or statement that would convey, with reasonable certainty, the same idea, would be sufficient. But such expressions as, the court was asked “to give the following instructions/* or, “¿o instruct the .jury as follows,” are insufficient.</p>

<p>Suit brought to settle a partnership. Before answer filed, agreement made to arbitrate, and suit dismissed. That no answer had been filed, did not prevent the defendant from relying before the arbitrators upon the same matters of defense and counter-claim which he might have done had the action proceeded, in order to a settlement of all the matters of controversy between the parties.</p> <p>The parties to an arbitration being present and heard before the arbitrators, it is no objection to the award that it does not state that the parties had notice of the time and plajee the arbitrators met and proceeded to act.</p> <p>That the umpire was'chosen by the arbitrators before they proceeded to act under the reference, forms no objection to the award.</p> <p>The Civil Code does not contain any provision which authorizes the use of affidavits as evidence on. the trial of attachments. No other proof but that prescribed by section 290 is admissible.</p>

<p>Whenever the error complained of is ascertained to consist in the mistake of the clerk and not in the judgment of, the court, and there exists anything in the record by which it can be amended, the application should be made to amend in the court below, and until thus made and refused, such an error is not available for reversal in the court of appeals.</p> <p>Where the petition admits the payment of a sum and it is not credited upon the judgment, the omission is a clorical misprision amendable by the circuit court at a subsequent term; and until an application to that effect has been made and refused, the omission to enter the credit is not available in the court of appeals.</p>

<p>Money which has been paid for a chattel, of no value when sold, and where there is thus a total failure of the consideration upon which the payment was made, can be recovered back.</p> <p>At a sale of a slave by an executor, the fact that one of the legatees was present, and, knovgifig that the slave was unsound and worthless, concealed his knowledge with intent to cheat and defraud the purchaser- — the executor not having any such knowledge or intention — cannot vitiate the contract.</p>

<p>CASE 11</p> <p>APPEALS FROM MERGER CIRCUIT COURT.</p> <p>cited act of 1837, (3 Stat. Law, 12 ;) act of ■ 1838, (3 Stat. Law, 117;) 8 B. Mon., 51; Civil Code, sections 222, 223, 224; Taylor vs. McCracken, MS. opin., 1854; 14 B. Mon., 497; 1 Littell, 93.</p> <p>cited Civil Code, section 224; 6 B. Mon., 583; 8 B. Mon., 51 ; lb., 160; Taylor vs. McCracken, MS. opin., 1854; Yantis, ¿¡•c. vs. Burdett, 2 Dana.</p>

<p>A misnomer, where the patentee is sufficiently described, will not render the patent void, but the title will vest in the patentee, notwithstanding the mistake made jn his name.</p> <p>Where the warrant, entry, and survey were in the name of Isaiah Marks, but the patent issued in the name of Josiah Marks, the inference, in the absence of any evidence of an assignment, is, that the patent actually issued to Isaiah. Marks, and that the insertaion of the name of Josiah was a mere mistake in writing the name of the patentee. In this case the mistake was corrected after the lapse of 65 years from the emanation of the patent. The defendants, claiming under a deed by Josiah Marks» not being invested with the legal title, (and not having shown a possession sufficient to defeat a recovery,) cannot rely upon lapse of time to prevent the correction.</p> <p>Although a patent issued in 1787 in the name of one who had previously died, and the grant was therefore void and the legal title remained in the Commonwealth, yet by the act of 1792 the title vested in the devisees of the patentee in the same manner it would have done had the grant issued in the lifetime of the testator.</p> <p>Every decision of the court below made during the trial must be excepted to at the time it is made, and if not thus excepted to, the error therein, if any, cannot subsequently be relied upon in that court as the ground for a new trial, nor in the court of appeals for a reversal of the judgment.</p> <p>Where the copy of a will is offered as evidence it must appear that its reading was objected to, that the court passed upon the objection, and that the decision was excepted to; otherwise, such an exception cannot be considered by the court of appeals. The same rule applies as in case of exception to a deposition. .</p> <p>Where each one of several joint owners of land takes into his possession separate parcels of the land, and the land is thus separately held and claimed during many years, the presumption arises that a partition thereof was made between the parties, under which partition it has been thus held and enjoyed. This presumption is mainly founded on the fact of a separate possession by all the joint owners.</p> <p>One joint owner of land, by having it in his possession and holding and claiming it as his own property, adversely to the rights of the other joint owners, and in such a manner as to apprise them of the adverse character of his possession, for a period of twenty years, may thereby acquire a* separate right to it, which would be not only available against them, but also sufficient to enable him to maintain an action in his own name, to recover the possession of it, if illegally deprived thereof.</p> <p>One of three joint owners of three tracts of land of 1,000 acres each, listed and paid taxes on one of the tracts, which was designated by his name and regarded as belonging to him in the neighborhood, but had no actual possession; his agent took somo control over and management of the tract, but took no part of it into actual possession; and one without claim entered upon, cleared and cultivated a piece of said tract. Bo presumption of partition of the lands can arise from these circumstances, and they are not sufficient to confer upon such owner a separate right to the parcel claimed by him, but he is only invested with title to one undivided third part of such tract.</p> <p>Vendee of one of three devisees of three tracts of land of one thousand acres each, (to be equally divided between them,) who has not had possession, and there having been no partition, sues to recover one of the tracts from one who is without title. Held, that the recovery can only be for one third of the tract sued for.</p> <p>A lease of land in which the lessee “promised to see to said land and prevent waste or damage to the same until sold or otherwise disposed of” by the lessor. The lessee did not enter upon and take possession of the land. Held, that such superintending care over the land would not enable the lessor or those claiming under him to rely upon possession in bar of an action by the title-holder for the recovery of the land.</p> <p>Where an entry upon land is not made under any claim, the law regards the possession as held under the superior title and as enuring to its benefit.</p>

<p>Whore the principal can trace his property into the hands of his agent or factor, whether it be the identical article which first came to the hands of the factor, or other property purchased for tho principal by the factor with the proceeds, he may follow it either into the hands of the factor, or of his legal representatives, or of his assignees, if he should become insolvent or bankrupt.</p> <p>The factor is a trustee for tho principal so long as he retains the property, or its representative, in his hands; and his assignees, or legal representatives, take it subject to the same trust, which they cannot defeat by turning it into money, unless, indeed, they should pay it away in their representative character before notice of the claim. It is in this point of viow only that notice is necessary.</p> <p>Vermifuge, placed in the hands of a druggist to be sold upon commission, was conveyed by him to trustees, with his stock of drugs, for the benefit of his creditors. It Came into the hands of tho trustees, who sold it. Held — that if the property or its proceeds remained in the hands of the trustees, they are responsible therefor to tho person who bailed it to the druggist ,* but if the property was received by them without notice of tho claim of the bailor, and they have bona fide sold it, and paid out the money according to the trust, before notice of the claim of the bailor, they are not responsible.</p> <p>An allegation of new matter in an answer, not constituting a counter-claim or set-off, must be considered as controverted by the plaintiff, as upon a direct denial, and be proved by the defendant.</p>

<p>.CASE 14 — PETITION ORDINARY —</p> <p>APPEAL FROM KNOX CIRCUIT COURT.</p> <p>This is an action by Hall & Co. against Renfro as the keeper of a public ferry across Cumberland river, to recover the price of a jack drowned at said ferry whilst it, with á lot of such animals of plaintiffs, was being ferried across the river in a boat of the defendant. Verdict and judgment were rendered for the defendant and the plaintiffs appeal.</p> <p>cited Civil Code, sections 651, 671 ; Coburn vs. Barrett, MS. opin., Winter Term, 1857 ; School, er vs. Schooler, MS. opin'., June, 1857 ; Edwards on Bailments, 441, 566-7 ; 2 Dana, 430.</p>

<p>The defendant cannot avail himself of his possession anterior to the date of the plaintiff's patent, as an adverse possession. (4 Bibb, 554.)</p> <p>No one can acquire a seizin in possession adverse to the Commonwealth; and lapse of time cannot operate as a har to the Commonwealth's right of entry upon lands not granted by her.</p> <p>A patent cannot bo avoided at law in a collateral proceeding by matters dehors the patent, unless it is declared void by statute, or its nullity indicated by some equally explicit statutory denunciation.</p> <p>Chapter 102 of the Revised Statutes repealed prior statutes upon the subject of the location and appropriation of land in possession of an actual settler thereon.</p> <p>Under the statute, supra, a patent cannot be declared void, in a collateral proceeding, unless it embraces land previously entered, surveyed, or patented, in which case it is declared void by the statute so far as land is embraced which has been previously entered, surveyed, or patented.</p> <p>Querc. Might not the defendant, having a preemption right under the statute, supra, rely upon it as an equitable defense pro tanto in his answer, upon taking the proper stops to secure the trial of the issue formed upon it on the equity side of the docket?</p> <p>The court may instruct the jury as to what facts they must, for the purposes of the action, regard as true because not controverted by the answer.</p>

<p>CASE 16 — PETITION EQUITY —</p> <p>Al’FEAL FROM LEWIS CIRCUIT COURT.</p> <p>cited 3 B. Mon., 217; 18 B.Mon., 209; & Dana, 411; 4 Dana, 292; 15 B. Mon., 69 ; 3 Dana, 392-3; Rev. Slat., page 338, sec. 25; 3 J. J. Mar., 291 ; 20 Johnson, 554; 1 Pirlle’s Digest, 300; 1 Code Rep., N. Y., 143; 5 Sanford, 54; 2 Metcalfe, 88, 285; notes to sec. 3, Stanton’s Code', 13 B. Mon., 466 ; 2 Metcalfe, 380; 1 Greanleaf, sec. 171; 9 Dana, 182.</p> <p>cited 5 Mon., 101; 1 /. J. Mar., 184 ; 6 J.J. Mar., 228; 18 B. Mon., 209.</p>

<p>CASE 17 — PETITION ORDINARY —</p> <p>APPEAL FROM ANDERSON CIRCUIT COURT.</p> <p>cited sec. 6 of act of 1838.</p> <p>cited 17 B. Mon., 360 ; 10 B. Mon., 16 ; secs. 3 and 6, act of 1838, 3 Stat. Law, 559 ; 15 B. Mon., 134-5.</p> <p>.cited act of 1838, 3 Slat. Law, 559 ; 8 B. Mon., 46 ; 14 lb., 308; J7 B. Mon., 381;- 12 lb., 388; lb., 401; 8 lb., 394; 9 lb., 443 ; .8 lb., 7 ; 15 lb., 133.</p>

<p>Viewers of a road, whose report is quashed by the county court, have no authority to make a second report without a new appointment.</p> <p>It is the duty of viewers of a road to describe the route laid out for the road by metes and bounds and by courses and distances.</p> <p>The viewers of a road should fix its commencement and termination by some visible object sufficient to determine their exact locality. Where the only mode of determining the beginning point is by reversing *£he courses as run by the surveyor, the report is insufficient.</p> <p>The report of the viewers of a road describes the beginning place as a> point on the turnpike road which leads from L. to B., on the land of P., near th^corner of said P.'s orchard, where the turnpike makes a bend or crook," and the surveyor's report is referred to for the metes and bounds, courses and distances, which does not fix the beginning point with more certainty than the report of the viewers. Held — that the report of the viewers is insufficient.</p> <p>That one of the viewers of a road was the brother-in-law of the plaintiff in the motion is sufficient to render the report illegal, and to authorize the court to quash it.</p>

<p>CASE 19--</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>cited 2 Mass. R., 269; Constitution of Ky., art. 4, sec. 2; Civil Code, sec. 15; 9 Dana, 513 ; 9 B. Mon., 330 ; lb., 526; 13 lb., 1; 15 lb., 491; 2 Met., 350; 4 Burr., 2199; Civil Code, sec. 675; act incorporating the Pond Draining Company.</p> <p>cited act of incorporation, approved February 15, 1858; 15 B. Mon., 154; 9 lb., 330; lb., 526 ; 9 Dana, 513; 2 B. Mon., 177 ; 5 lb., 199; 13 lb., 22; 2 Met., 350 ; Churchill vs. Jefferson Pond Draining Co., MS. opin., May, 1840.</p>

<p>CASE 20 — PETITION ORDINARY —</p> <p>APPEAL PROM THE GRAYSON CIRCUIT COURT.</p> <p>cited Rev. Statutes, chap. 93, art. 6 ; Civil Code, sec. 24.</p>

<p>CASE 21--</p> <p>APPEAL PROM BRECKINRIDGE CIRCUIT COURT.</p> <p>cited 13 B. Mon., 237; Civil Code, secs. 849, 161, 827, 145, 739, 824, 360,153, 120,121, 123, 690, 691; 9 Dana, 64; 4 J. J. Mar., 242 ; 4 Bibb, 416; 5 Dana, 596; 7 Dana, 168; 15 B. Mon., 48; Taylor's ex'r vs. Berry, MS. opin., Sept. 1855 ; Rev. Stat., 214 ; sess. acts 1857-8, page 35.</p> <p>cited Civil Code, secs. 827, 29, 16, 3, 4, 65, 849 ; 4 Mon., 413; 5 Mon., 262 ; 7 Dana, 168 ; 2 B. Mon., 264.</p>

<p>CASE 22----“-</p> <p>APPEAL FROM GREEN CIRCUIT COURT.</p>

<p>One for whose use and benefit it is stated in the petition the action is brought, is thereby virtually made a party to the action, and may, by an amended petition, assume the attitude of plaintiff.</p> <p>The doctrine is well settled, that a payment of a less sum is not a good satisfaction, unless it be made before the money was 'due, or at a different place from that at which it was payable.</p> <p>A statutory bar which was not complete when the action was brought, but becomes complete during its pendency, cannot be relied on to defeat the action.</p> <p>By chapter 63 of the Revised Statutes, actions upon notes for the payment of money are barred after fifteen years from the accrual of the cause of action, exceptuases in which the right of action had accrued prior to the adoption of the statute. The amendatory act of February 4th, 1858, extended the provisions of that chapter to all eases, whether the right of action accrued before or after the Revised Statutes took effect, from and after the 1st of August, 1859. A suit was brought before the last named day, and was then pending, upon a note duo more than fifteen years before the commencement of the action. Held — that the action was not barred.</p> <p>The act of 1858, supra, was intended to apply only to such actions as might be commenced'after the 1st of August, 1859.</p> <p>Where the plaintiff in an action against the obligor is in possession of the note sued on, without assignment, and his right thereto is admitted by the answer of the payee, no other testimony is necessary to prove that he is entitled to the debt $ his right thereto could not, in such case, be questioned by the mere denial of the obligor.</p>

<p>Pending a suit in chancery for the distribution of the estate of an intestate, ia which the administratix and her sureties were defendants, two of the four distribtees, in consideration of $1,000 paid them, covenanted to and with one of the three sureties of the insolvent administratix to indemnify and save him harmless in his suretyship. One of the other two sureties was a non-resident, and had no property in this State. The third surety was ignorant of the contract of indemnity until after the decree was rendered in favor of the four distributees for $300 each — no credit having been allowed on account of the sum paid the two distributees in consideration of the indemnity. Held — that, although the bond of indemnity did not operate as a release to the sureties, nor entitle the administratix and her sureties to a credit for &he $1,000, yet the resident surety who was not indemnified might obtain a perpetual injunction against the obligors in the bond of indemnity to prevent the collection of that part of the decree to which they are entitled, being one-half thereof, the remaining half to bo paid by said surety.</p>

<p>CASE 25 — PETITION ORDINARY —</p> <p>APPEAL PROM DAVIESS CIRCUIT COURT.</p> <p>cited 18 B. Mon., 824 ; Civil Code, secs, 155, 145, 588.</p>

<p>In an action upon an attachment bond, brought by the defendant in the attachment to recover expenses for attorney’s fees in suceesfully contesting the attachment, ho can only recover whero ho has paid or contracted to pay such fees, and upon proof that they are reasonable. Refer to Doe, <£c. vs. Perkins, 8 B. Mon., 198.</p>

<p>A will or codicil may be entirely depending on a contingency, so as to have no effect as an instrument of a will unless that event happened. (1 Vesey, Sr., 190.)</p> <p>In January, 1857, M., of Nelson county, Ky., escaped from the wreck of a steamer on the Mississippi river, and arriving in Memphis, Tenn., wrote to his wife a letter in which, after an account of the hardships and dangers through which he had just passed, he says : “The ice is still running very bad in the river. I can’t say when</p> <p>I will be able to get off from here, but I suppose soon, as the weather seems to be moderating. The river is very low and navigation very dangerous — so much so, I feel that I should protect you in any emergency. I would not have had you with me for the world. If I never get back home, I leave you everything I have in the world. The property I got by my first wife I wish you to return everything to her father.” The letter and signature were wholly in his handwriting. It was received by his wife. He subsequently returned home and lived until March, 1858, when he was murdered near his residence by his slaves. Held — that the instrument was a contingent will, and as the condition upon which it was to take effect did not happen, it cannot be established as a last will and testament.</p> <p>In the case, supra, there was parol evidence of parol declarations of the author of the letter, (in the absence of the paper which was never seen by the witnesses,) made upon divers occasions after he had returned to his home, that he had written such a paper, giving the time and place it was written, and the circumstances under which it was written, and giving also the substantial provisions of the paper, coupled with a declaration that he still had the paper, that it was his will, and that he intended his property to go at his death as therein directed. Held not sufficient to give effect to the instrument as a will.</p> <p>A will cannot be revoked in this State except by some one or more of the modes mentioned in sectionc 9 and 10 of the chapter on Wills in the Revised Statutes.</p> <p>A re-execution of a revoked will can only be effected by such acts of the maker as are equivalent to an original execution. Parol acts or declarations are not sufficient for the purpose.</p>

<p>Money paid by a surety must, prima facie, be deemed to have been paid to the use of the principal obligor; and the liability of a co-security is altogether contingent, depending on the insolvency of the principal. (2 Dana, 296.) The law in this respect has not been changed by section seven, of chapter ninety-seven, of the Revised Statutes,</p> <p>An intention to change a well settled rule of law should clearly appear before the presumption should be indulged that such a change has been produced by an act of the legislature.</p>

<p>CASE 29-</p> <p>APPEAL FROM MASON COUNTY COURT.</p> <p>cited Revised Statutes, chap. 103, sec. 31; Civil Code, secs. 15, 16,20; charter of Maysville and Mt. Sterling road, sess. acts 1835; page 46 ; Revi Stat., repealing clauses.</p> <p>cited Civil Code, sec. 20 ; Rev. Statutes, Stanton’s Ed., secs. 32, 33,page 448 ; lb., chap. 103, secs. 1 to 14 and sec. 32 ; Civil Code, sec. 15; 15 B. Mon., 48; Civil Code, sec. HQ.</p>

<p>CASE 30----</p> <p>APPEAL FROM THE GREENUP CIRCUIT COURT,</p> <p>cited Civil Code, sec. 259, 224, 11, 125, sub-sec. 4; 2 Duer, 642; 15 B. Mon., 460; Civil Code, sec. 299; Story’s Eg., sec. 937, 5.</p> <p>cited Civil %Code,.art. 2 of chap. 3,pages 70, 71; lb., sec. 11,291, 126; 12 B. Mon., 553.</p> <p>cited Civil Code, sec. 11; 3' Mon., 209; 12 B. Mon., 553; 1 Hilliard on Torts, 494-5; 11 Ala., 302.</p>

<p>CASE 31-</p> <p>APPEAL PROM CAMPBELL CIRCUIT COURT.</p> <p>cited Civil Code, sec. 239.</p>

<p>In an action for the hire of a slave, the defondant denies that he had any negro of the plaintiff hired, as charged in the petition, nor did he agree to pay either clothing or hire, and therefore denies that he owes plaintiff $140, or any other sum for the hire or clothing of said negro as charged; but fails to controvert the allegation that he had the negro in his possession for the year stated and had received the product of his services to the amount or worth stated in the petition and due at the time therein alleged. Held — that the effect of the answer is, to deny-merely the express contract of hiring, as stated in the petition, and to admit the facts charged, upon which the liability of the defendant to pay the value of the slave's services for the year, arises by implication of law. (Civil Code, sec. 153.)</p> <p>In an action to recover the value of work and labor, the jury have a right, in the absence of all proof of the value of such labor, and from their own knowledge of the ordinary transactions and business of society, and especially from their presumed knowledge of the value of labor, to find a verdict for the price of the work done and for which the action was brought. (1 J. J. Mar., 366.) The principle applies to judges as well as jurors. Where a jury is waived, and the Law and facts are submitted to the court, the order of submission clothes the court with all the rights and func* tions of a jury in determining the facts and in the assessment of damages.</p>

<p>CASE 33-</p> <p>APPEAL FROM JEFFERSON COUNTY COURT.</p> <p>cited 10 Johnson's Rep., 249 ; 2 .Bailey, 56,2; Wheeler's Law of Slavery, 225.</p>

<p>An answer denying that the plaintiff was the holder and owner of the note sued on, and averring that it had been assigned by the plaintiff to another by deed for the benefit of creditors, may be regarded as a dilatory pleaj not, however, resulting, even when sustained by proof, in a dismissal or abatement of the action, but furnishing ground for an order of court, requiring the additional party to bo made on pain of dismissal without prejudice. The defect of parties not appearing in the petition, is properly taken by answer, which, although presenting nothing in bar of the action, presents an obstacle to a recovery until the necessary party is made. (17 B. Mon., 602.)</p> <p>The issue, supra, is triable by the court aud not by the jury, and the onus probandi is upon the paity making the objection.</p> <p>Where the answer of the defendant controverts none of the facts alleged in the petition, which fix his liability as indorser, or as the assignor for value of the note sued on, but merely denies that the plaintiff was the holder and owner of the note and alleges that it had been assigned to another, and the objection is not sustained by proof, the court should render judgment upon the merits without the intervention of a. jury.</p>

<p>CASE 35 — PETITION EQUITY —</p> <p>APPEAL PROM CASEY CIRCUIT COURT.</p>

CASE 36 — PETITION FOR MANDAMUS — APPEAL PROM CLARKE CIRCUIT COURT.

<p>Notos executed to au administrator as such may, if uncollected or undisposed of by bim in his lifetime, become assets in the hands either of his own personal representative, or of the administrator de bonis non, the one or the olher — ¿should there be a, conflict between them — being entitled according to the result of the inquiry whether the first administrator had become beneficially entitled to them as a creditor of his intestate or by having charged himself with them in a settlement of the estate. (1 j3. Mon., 62; 15 B. Mon., 083.)</p> <p>The sheriff, to whom an estate is committed by the county court, as administrator de bonis non, may sue in his name as administrator, &e., upon notes which were executed to the former administrator as such, and which have come to the sheriff's hands as assets of the estate. He, being the real party in interest, could alone maintain the action. (Civil Code, sec. 30.)</p>

<p>CASE 38 — PETITION EQUITY —</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>cited Cily Charter, art. 6, sec. 20.</p>

<p>CASE 39 — PETITION EQUITY —</p> <p>APPEAL PROM LOUISVILLE CHANCERT COURT.</p> <p>cited 2 Vesey, Sr., 420-1-2 ; 4 Mad., 168; 1 Vern., 31 ; 1 Roper on Legacies, 415,417,426, 432; 2 Williams on Executors, 1174; 1 Greenleaf's Evidence, secs. 287, 288; Amb., 244; Revised Statutes, 281; Civil Codev sec. 161.</p> <p>cited 2 Mar., 31; 2 Stavlcie's Ev., 1024-5-6, 1094; Roper on Legacies, 132, 141, 271 ; 2 Williams on Executors. 973, 976, side page; 1 P. Williams, 126,296; 2 Vesey, Sr., 470 ; 4 Mad., 168; 1 Young, 341; 16 Vesey, 396; Rev. Statutes, 281, chap. 30, sec. 13 ; Revised Statutes, 393, secs. 7, S ; 2 Blackstone Com., 108, 109, Statute, of Henry 8 ; 16 B. Mon., 470.</p>

<p>A testator bequeathed to his wife his farm “during her natural life;” also tirosínvós (naming them,) ‘‘during her natural life, should she remain a widow/* also “during her natural life” sundry articles of personal property, naming them The will then proceeds: “It is my desire that in case my beloved wife shall marry, she is only to hol$ that part of ihe tract of land and farm which lies eastwardly of the lane and road leading through the plantation. After that event may take place the balance of the devises made to her are not to be affected by the circumstance of her intermarriage.” The testator then directs a sale of his personalty, except that devised to his wife, and if it be, sufficient for the payment of his debts, he bequeathes to her “during her natural life” a negro man, Aaron. “Item — I give and bequeath the real estate and slaves herein devised to toy beloved wife during her natural life, after her death to be equally divided between the lawfully begotten children of my brothers John, David, Jacob and James, or such of them as may he living at the time of her death, or the said slaves and real estate to be sold and the proceeds to bo equally divided among said children, as aforesaid.” There is no residuary clause in the will. The widow married, and is yet alive. Held — That the heirs at law are entitled, by descent, to the land “lying wcstwardly of the lane,” as designated in the will, from the period of the marriage of the widow of the testator until her death, when the devisees m remainder under the devise to them will be entitled.</p> <p>The intention of the testator must be gathered from the instrument itself whenever it is possible to do so. Every word is to have its effect, provided an effect can bo given to it not inconsistent with. ihe general intent of the whole will when taken together}- and no word is to be rejected unless there cannot be a rational construction of the will with the word as it is found. Nor is it necessary to take all the words in the order they are, as thb courts may range them in a different order and transpose them to comply with the intention. Cut, in no case, where the words arc plain and sensible, is a transposition to be made in order to create a different meaning and construction} much less to let in different devisees and legatees} nor where a former clause is express and particular shall a subsequent one enlarge it.</p> <p>When a testator in the disposal ol' his'property overlooks a particularevent, which, had it occurred to him, he would probably have guarded against, the omission will not be supplied by employing or inserting the necessary clause. And, though the inference of intention bo more or less strong, yet, if not necessary or indubitable, the court will not aid the supposed intention by adding or supplying words.</p> <p>Estates are contingent which are limited to take effect upon the happening of an uncertain and doubtful event, or where the persons, to whom they are limited, are not ascertained or yet in being.</p> <p>The heir at law never takes by the act or intention of the testator. His right is paramount to and independent of the will, and no intention on the part of the testator is necessary to its enjoyment. On the contrary such right can only be displaced or precluded by direct words or plain intention evincing a desire upon the part of the testator that he shall not take. He needs no argument or construction showing intention in his favor to support his claim. They belong to the party claiming under the will and in opposition to him.</p>

<p>CASE 41 — PETITION EQUITY —</p> <p>APPEAL FROM FAYETTE CIRCUIT COURT.</p>

<p>CASE 42 — PETITION EQUITY —</p> <p>APPEAL FROM SCOTT CIRCUIT COURT.</p> <p>cited 3 Bibb, 15; 1 Marsh., 47 ; 3 J. J. Mar., 515; 4 lb., 592 ; 3 Bibb, 504.</p> <p>cited 1 Greenlecf’sEv.,sec. 182, 9th ed.</p> <p>cited 1 Bibb, 610.</p> <p>cited 1 Bibb, 609 ; 1 J. J. Mar., 3 ; lb., 401 ; 4 Blackf. 339 ; 2 lb., 441.</p>

<p>CASE 43-</p> <p>APPEAL FROM BOURBON CIRCUIT COURT.</p> <p>cited Civil Code, secs. 65, 247, 393, 395, 396. 474, 574, 578,579.</p> <p>cited 2 Bibb, 608; 3 Dana. 73; Lexington and Danville Railroad December, 1856; 1 Metcalfe, 43 ; Co. vs. Morrissey, MS. opinion, lb., 241; lb., 489 ; lb., 499.</p> <p>cited 1 Marsh., 594; 2 lb., 500; 4 Mon., 544 ; Civil Code, sec. 247.</p> <p>cited Civil Code, secs. 474, 476 ; 1 Marsh., 592; 6 Mon., 205 ; Civil Code, secs. 65, 118, 247.</p> <p>presented a petition for rehearing,'and cited Civil Code, secs. 245, 246, 247, 248, 250.</p>

<p>There is no restriction or limitation of time in the Civil Code, in reference to the correction of clerical misprisions, except as to motions made to vacate a judgment rendered upon a premature trial.</p> <p>The failure of the clerk to insert in a judgment by default the amount of one of two notes sued for, is a clerical misprision, amendable by the record.</p> <p>In May, 1856, suit was brought upon two notes. Defendant withdrew his answer, and permitted judgment to go. The clerk failed to insert one of the notes in the judgment. Plaintiff-afterwards withdrew the note thus omitted, without leave of court, and assigned it to another who sued upon it, when the judgment of 1856 was relied on as a bar, and the defense sustained by the court. After this — in October, 1859 — the payee of the note, plaintiff in the first suit, upon rule for that purpose, moved for the correction of the judgment of 1856 so as to embrace the omitted note. The circuit court allowed the correction asked for. Held — that the correction was properly allowed. %</p>

<p>CASE 45 —MOTION—</p> <p>APPEAL FROM PENDLETON CIRCUIT COURT.</p> <p>cited Rev. Statutes, chapter 36, art. 18, sec. 4; 5 Mon., 125; Littell’s Sel. Cases, 271.</p> <p>cited 1 Stanton's Rev. Statutes, page 494, note.</p> <p>cited Jenkins vs. Hooper, MS. orpin., December, 1852.</p>

<p>The viewers of the route for the opening or alteration of a public road must describe the route by metes and bounds, and by courses and distances. A strict compliance with these requisites is indispensable to the validity of their report. Such general indications of the courses as “northwardly,” a “northwardly course,” “following the general course of said creek northwardly,” &c., “crossing said creek about one hundred yards from said C.’s line, and near the corner of NVs land,” <fcc., are not sufficient. The report must show what amount of land, as well as its precise locality, is to be taken for the purposes of the road.</p>

CASE 47 — PETITION EQUITY — APPEAL PROM BOONE CIRCUIT COURT. cited act of 1838, 3-Stat. Law, 559; Rev. Statutes, 3cl section of repealing clause; lb., chap. 21, sec. 14 ; 14 B. Mon., 311. cited Rev. Statutes, chap. 97, sec. 13; lb., chap. 63, sec. 7.

<p>A plaintiff cannot maintain an action for the malicious prosecution of a civil suit until after the legal termination in his favor of the suit complained of. And such termination must appear on the face of the petition. (12 B. Mon., 553; 3 Mon., 209; 1 Hilliard on Torts, 495.)</p> <p>The rule supra may be said to ho subject to exception in cases wherein, by statutory provision, an interlocutory order is declared final, as in the case of an order discharging an attachment, as provided by the Civil Code, section 292. But oxcep m cases of this class the prerequisite of a legal termination of the suit cannot bo dispensed with.</p> <p>After answer to an action in equity brought for a settlement of a partnership, an injunction and restraining order, obtained by the plaintiff, was, on motion of the defendant, discharged, hut no order made finally disposing of the action. The defendant in said action thereupon sued to recover damages against tho plaintiff for maliciously and without probable cause bringing said action and suing out said injunction. Held — that the order discharging the injunction was interlocutory, and, there not having been a final termination of the suit, the action for malicious prosecution cannot bo maintained.</p>

<p>In an action upon an obligation to pay a sum of money in cash notes, the court may, upon a failure to answer, hear proof and assess the damages. (Civil Code, sec. 409.) But the record must show that proof was heard by the court, and the damages founded thereon. (14 B. Mon,, 394; 18 B. Mon., 60.)</p> <p>In such action the criterion of damages is the value of the cash notes at the time they ought, by the terms of the contract, to have been paid, to which may be added, by way of additional damages, interest on such value from that time. (3 Dana, 142.)</p>

<p>CASE 50 — PETITION ORDINARY —</p> <p>APPEAL FROM SHELBY CIRCUIT COURT.</p> <p>cited Story on Bailments, sec. 103 ; Story's Eq. Jur., sec. 1041; 1 Met., 499.</p> <p>cited Story on Bailments} section 210; 4 /. /. Marshall, 207; 1 Chitty's Pleading, 3, 4, 6, 8, and note.</p>

<p>Writs of venditioni exponas confer no new authority upon the officer to whom they are directed, but only require him to do that which he was authorized to do by the former execution.</p> <p>Where the execution of a fieri facias, which has been levied, is arrested by either •an injunction or supersedeas, the levy is released and the lion created thereby discharged. The officer has no lawful control over the property after the service- of either precept, and it becomes then his duty, if it is in his possession, to restore it to the defendant.'</p> <p>Where the execution of a fieri /acio/which has been levied has been stopped by injunction or supercedeas, upon discharge thereof a writ of venditioni exponas cannot issue, and if issued it will be void and, together with the sale made thereunder, will be quashed.</p> <p>In sucli case the plaintiff in the ji. fa. has his recourse upon the injunction and appeal bonds for any damage sustained by the effect of the injunction and supersedeas? and the purchaser of the property under the writ of venditioni exponas is not without his remedy. Argu,</p> <p>The Civil Code has not diminished or changed the force and effect either of an injunction or a supersedeas. The mode of procuring such process has been changed, but when procured it is entitled to the same force it always had.</p> <p>The objection for want of parties comes too late when presented for the first time in the court of appeals; it must first be made and acted upon in the court below.</p>

<p>Section 41 of article 4 of the Constitution of Kentucky relates exclusively to suck police courts (and tho officers of such courts, including judges, clerks and marshals,} as had been established in any city or town prior to the adoption of the constitution^ and the ftth section of article 6 was intended to refer to all officers of towns and cities whose offices might be created or established after its adoption. (2 Met., 576.)</p> <p>Officers for cities and towns shall he elected for such terms and in such manner as may he prescribed by law. ( Constitution of Ky., art. 6, sec. 6.) Where a statute creates the offices of “members of a police board” of a city, who are required by the act to reside in tho city, to he qualifiod voters thereof, and to keep their offices therein, and whose duties relate to matters exclusively local, confined to subjects pertaining to the “police department” of the city, they should be elected by the voters of such city. If tho statute direct their appointment by tbe Governor, or by a judge of a court, it is unconstitutional.</p> <p>An appointment to an office by tbe Governor is not tbe same thing, in a constitutional sense, as an election to an office.</p> <p>The word term, with reference to the tenure of office, is used in the constitution to designate a fixed and definite period of time. A statute creating the offices of members of tho police board of a city, which provides that they may be removed at the pleasure of the chancellor, and that they must be removed whenever by a change of political opinion on their part, or on the part of the mayor,' they cease to disagree, fails to comply with the requirements of tho constitution, and provides for a tenure of office unknown to that instrument.</p> <p>Power is given by a statute to the police board of a city to appoint a chief of police assistant chiefs of police, supernumerary watchmen, and fill vacancies in those offices until the next general election, to employ a clerk, and also to try the “chief or assistant chiefs of police, or any watchmen, or any other member of the police force, now or hereafter holding office in said city, for any violation or neglect of duty, and remove them from office or suspend them for such time as the hoard may determine. Quere. Isthe act unconstitutional upon the ground that it provides for a blending of executive and judicial powers? The court say they are not prepared to decide that it is$ and refer to Story's commentaries on tho constitution for a satisfactory exposition of the clause on which the objection is founded, and especially to the chapter on the "distribution of powers/’ secs., 517 &c.</p> <p>When the General Assembly, by a vote of two-thirds of all the members elected to each house, extends the session beyond sixty days, the constitutional restriction as ' to the length of the session is effectually removed and can operate no longer. After the removal of the restriction the General Assembly may thenceforward, by the concurrence of a majority, protract the session from time to time as the necessities of the business before them may seem to require.</p>

<p>CASE 53 —CAVEAT—</p> <p>APPEAL FROM MONROE CIRCUIT COURT.</p> <p>cited Revised Statutes, 677 ; act of 10th March, 1856, 1 sess. acts, page 109; act of 10th March, 1854, sess. acts, page 175.</p>

<p>CASE 1 —INDICTMENT—</p> <p>APPEAL PROM MASON CIRCUIT COURT.</p> <p>cited act of 1856, Stanton’s Rev. Stat., page 276.</p>

<p>An indictment for obtaining a note by false pretenses, charges, in substance, that the defendant falsely represented to his creditor, that he had a specified quantity of tobacco, wórth 14 cents per pound¿ that it was of a particular description and quality, according to a sample which he exhibited j and that, by these false pretenses and representations, with intent to cheat and defraud the creditor, the dofendant obtained, and the creditor was induced to deliver to him, a note which he held upon the defendant, upon which there was a balance due of $122 04, and to credit said note fox' said sum ,* when in truth said lot of tobacco was not a good article of tobacco, and not of the quality and description of the sample, &c., and was of no value, which tho defendant knew. Held — that the facts charged do not amount to a false protense within the meaning of the statute.</p> <p>It is difficult to lay down any rule by which to establish the true boundary between those frauds which amount to false pretenses, and are indictable under the statute, and such as amount to unfair dealing and imposition. Argu,</p>

<p>CASE 3--INDICTMENT —</p> <p>APPEAL PROM CARTER CIRCUIT COURT.</p> <p>cited .Rev. Statutes, chap. 32, secs. 11, 12, art. 12; 10 B. Mon., 328.</p>

<p>An assault and battery committed on a slave is an indictable offense.</p> <p>Many circumstances which would not constitute alegal provocation for one white man to commit a battery upon another, would justify it when committed upon a slave.</p>

<p>CASE 5 — INDICTMENT—</p> <p>APPEALS PROM KENTON CIRCUIT, COURT.</p> <p>cited Wharton’s Amer. Grim. Law, sections 2144 to 2162; 1 Greenleaf Ev., sections 197, 198, 199, 200; 1 Stanton’s Revised Statutes, page 392.</p>

<p>An appéal lios to the court of appeals from an order of a county court'periua'nently suspending the jailer of the county from acting as such.</p> <p>By the constitution the term of office of a jailor is fixed at four years, and until his successor is qualified. It is therefore beyond the power of the legislature either to increase or diminish the term of office.</p> <p>There are two inodes prescribed by the constitution whereby a civil officer may b© removed from office before the expiration of his term — (1) by impeachment, a mode, that applies to and embraces every civil officer in the State j and (2) by indictment or presentment, which only applies to judges of the county court, justices of the peace, sheriffs, coroners, surveyors, jailers, county assessor, attorney for the comity, and constables. (Constitution, art. 5; Ib.y art. 4, sec. 36.)</p> <p>Section 36 of art. 4, of the constitution, of itself, and without other legislation, authorizes an indictment against any of the officers named therein for the offenses mentioned, and a conviction and judgment vacating the offender's office. ( Wharton vs. Commonwealth, MS. opin., July, 1855.)</p> <p>Wherever, the constitution has created an office and fixed its terms, and has also declarod upon what grounds and in what mode an incumbent of such office may b© roffioved before the expiration of-his term, it is beyond the power of the legislature to remove such officer or suspend him from office for any other reason or in any other mode than the constitution itself has furnished.</p> <p>Section nine of article two of chapter ninety-one, of the Revised Statutes, which authorises the suspension of a jailer by the county court, does, so far as the incumbent is concerned, virtually authorize his removal from office, in a manner different from-that prescribed by the constitution } and said section is, to that extent, unconstitutional, inoperative, and of no effect. Such officer can only bo removed-upon the grounds and in the mode designated by the constitution.</p>

<p>The separate estate of a married woman, whether created before or since the adoption of the Revised Statutes, eannot be sold or encumbered but by an order of a court of equity, and only for the purpose of exchange and reinvestment for the same use as that of the original conveyance or devise.</p> <p>Since the change in the law, she has no power to charge or encumber or dispose of her separate estate, for any purpose whatever, in any other mode than that prescribed by the statute.</p>

<p>CASE 8 — PETITION ORDINARY —</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>cited Civil Code, sec. 670 ; Smith’s Leading Cases, Law Library, vol. 4A,page 87; 16 Johns., 72; 1 Hill, 131; 9 Serg. and Rawle, 229 ; 9 Watts, 144; 11 Peters, 95; 7 Cranch, 200; 5 Mon., 268; 7 B. Mon., 226; 24 Ala., 378; 2 Hill, 3 ; 6 Peters, 59.</p> <p>cited 18 B. Mon., 128; 21 Pick.-, 327; 9 Mass. Rep., 55.</p>

<p>The supersedeas bond, demanded by section 887 of the Civil Code} provides for the security of the appellee, not only in case of affirmance, but also in case of reversal, to the extent of the judgment appealed from, where the court of appeals shall direct a judgment in his favor to be rendered by the inferior court.</p> <p>Sureties in a supersedeas bond, under the^clause that they will “satisfy any judgment or order which the court of appeals may render, or order to be rendered by the inferior court,” not exceeding in amount of value the judgment appealed from, are liable, although the judgment be reversed, where the court directs a judgment to be entered by the inferior court in favor of the appellee against the appellant, for the judgment entered in pursuance of the mandate.</p>

CASE 10-= — APPEAL PROM M’LEAN CIRCUIT COURT. Johnson sued out from the presiding judge of the McLean county court a warrant of forcible detainer against Erwine. On the inquisition in the country a verdict and judgment were rendered against the defendant, who traversed the inquisition.

<p>The execution of a deed of conveyance, without expressly stating therein what part of the purchase money remains unpaid, operates as a waiver of the lien of the grantor j the lien is ontirely gone and cannot again be asserted against any person or for any purpose. The cases of Stoclzxoell vs. Chapman, 18 B. Mon., 650, and Cottman vs. Martin, 1 Metcalfe, 563, are approved, and the case of Neal vs. Davis, 17 B. Mon., 143? in conflict with them, is disapproved.</p>

<p>CASE 12 — PETITION ORDINARY —</p> <p>APPEAL PROM HARRISON CIRCUIT COURT.</p> <p>cited chap. 63, sec. 2, Rev. Slat.,page 458 ; act of Feb. 4, 1858,1 sess.'acts, 1857-8,page 26,; 5 B. Mon., 570.</p>

<p>CASE 13 — PETITION EQUITY —</p> <p>APPEAL FROM GARRARD CIRCUIT COURT.</p> <p>cited 8 B. Mon., 64 ; 15 lb., 69; 14 lb.. 311.</p> <p>cited Civil Code, sec. 474; Rev. Slat., sec. 23, page 543; 8 B. Mon., 65 ; 3 Bibb, 186.</p>

<p>CASE 14 — PETITION EQUITY —</p> <p>APPEAL PROM PULASKI CIRCUIT COURT.</p> <p>cited 8 B. Mon., 227.</p>

CASE 15-- APPEAL PROM MASON CIRCUIT COURT. cited Rev. Statutes, chapter 106, section, 28, page 698 ; lb., sec. 38; lb., sec. 36 > lb,, sec. 'ó, page 694; lb., sec. 26, page 192; lb., sec. 26, page 697; 13 B. Mon., 268-9; Miles’ will, 4 Dana; Brown’s will, 1 B. Mon., 56; 1 Jarman on Wills, (Perkins’ notes,) top pages 136, 137, and side pages 96, 97. cited 18 B. Mon., 260 ; 4 Dana, 1; 1 B. Mon., 56; 2 Stanton’s Revised Statutes, page 464, sec. 36.

<p>The parent or grand-parent oannot, by a mere declaration of bis intention, either make that an advancement which is not such by law, or exempt one of his children from liability to account for money or property he has given to him, with which, the statute makes him chargeable. This he can only effect by a last will and testament^ duly executed, disposing of the whole of his estate real and personal. (17 B. Mon,, 70á.)</p> <p>A tract of land conveyed by a father to his daughter and her husband, in consideration, as recited in the deed, of one dollar and of the love and affection which he bore to them, although not intended to be charged as an advancement, held to be chargeable to the daughter, in the distribution, of the estate of her father, who died intestate, as an advancement made to her by him in his lifetime.</p>

<p>A defendant in an action who has permitted judgment by default, and who has paid off and satisfied the same upon execution, can afterwards maintain an action in equity against the plaintiff for usury embraced in said judgment, notwithstanding he knew when the judgment was rendered, and when the money was paid, that the usury was embraced in the judgment.</p>

<p>CASE 18-</p> <p>APPEAL PROM MASON CIRCUIT COURT.</p> <p>cited 17 B. Mon., 542; 15 Ib., 63Ó; 14 lb., 52Ó; 1 ■ Marsh 354; Civil code, sec. 611; 4 Seldon, 158;' 6 Wheaton, 119; 6 Peters, 691, 709; 12 lb., 657, 718; 2 Howard S. C., 319, 338; Drake on Attachments, sec. 85.</p>

<p>CASE 19 —</p> <p>APPEAL PROM ANDERSON CIR0ÜIT COURT.</p> <p>cited Stanton's Rev. Stat., page 288, sections 10, 11 ; lb., section 3, page 285; Ib.,page 294, section 40.</p> <p>cited 1 Bibb, 292 ; 3 lb., 78 ; 2 J. J. Mar., Williams vs. Jackson; Payne, Spc. vs. Clemments, MS.opin., Sept., 1854; 2 Rev. Slat., chap. 84, secs. 10, 11, 12.</p>

<p>CASE 20 — PETITION ORDINARY —</p> <p>APPEAL FROM JEFFÍJRSON CIRCUIT COURT.</p> <p>cited 5 Mon., 6; Oberdorfer vs. Albaker, MS. opinion, October, 1858.</p>

<p>CASE 21--</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT.</p> <p>cited 2 Dana, 52; 7 J. J. Mar., 43.</p> <p>cited 4 Comyn’s Digest, title Execution, {A. 5,) page 115, and cases there cited; Remmington on Ejectment, {edition of 1806,) page 435; Adams on Ejectment, 413; 11 Wendell, 182.</p>

<p>It is not the official or legal duty of a clerk of the circuit court to receive money deposited or paid into court, and the sureties in his official bond as clerk are not liable for his failure to pay over money thus received by him.</p>

<p>The plaintiff had attached the property of his debtor, and thereby secured his debt, when third persons verbally promised him that, if he would release the attached property and receive fifty cents to the dollar of the debt, they would execute their notes therefor, payable in instalments, and for the costs of the proceeding. .Plaintiff ■aocejited the proposition, dismissed the proceeding, and released the attached property. Held — that the promise is not enforceeble, being against the statute of frauds.</p> <p>Quere. If the consideration for the promiso had included the discharge by the plaintiff of his debtor from liability upon the debt ?</p>

CASE 24-- APPEAL PROM JEFFERSON COUNTY COURT. cited art. 4, sec. 8, charter of Louisville; lb., art. 5, sec. 9. cited sess. acts, 1859-60, chap. 532, page 50; charter of Louisville of 1851, art. 5; lb., art. 5, sec. 13. cited act, of 25 Feby., 1860, chap. 532; Rev. Statutes, 692; Code, 775, 10 sub-sec. 6; sess. acts 1856, 77; act of 2ith March, 1851, 2 sess. acts, page 597; city charter, art. 5, sec. 13; Crim.

<p>CASE 25 — PETITION EQUITY —</p> <p>APPEAL FROM CAMPBELL CIRCUIT COURT.</p> <p>cited Rev. Statutes, chapter 47, art. 3; Civil Code, sections 457, 458, 459 ; 7 Dana, 186; Civil Code, section 16 ; Rev. Statutes, (Stanton’s,) 1 vol., chap. 27, page 303; Bascom vs. Bascom,7 Ohio; 6 Ohio, 64; '9 Ohio State repartí 535 ; 3 Gray, 136; 2 lb., 361 ; act of March 10th, 1854, 2 Stanton’s Rev. Statutes, 29 ; Civil Code, sec. 463; lb., sec. 440; 1 Met., 333; 4 Litt., 252 ; 5 Dana, 499; 2 Rev. Statutes, (Stanton’s,) page 20 ; lb., 22; Civil Code, sections 464, 475, 476, 477, 478, 479; 15 Ohio, 405 ; 7 Peters, 348.</p> <p>cited Civil Code, sections 445, 450, 446.</p>

<p>A drawer of an accommodation bill of exchange, at whose request and for whose benefit it was accepted and endorsed, and who received its proceeds, is not entitled to notice of the protest of the bill for non-payment $ no presentment for payment is necossary to fix his liability.</p> <p>Quere. Where the allegation in an action against the drawer of abill of exchange is that it was “duly presented for payment, and not being paid was duly protested for non-payment, notice of which was duly given to the drawers and endorsers,” should evidence, not objected to, that it was an accommodation bill, accepted at the request and for the benefit of the drawer, who received its proceeds, be disregarded as irrelevant to the issue made by the pleadings?</p> <p>Bill of exchange, payable at the Ohio Insurance Company, New Albany, (a bank.) It is shown by the protest that on the day of payment the notary “did, after the close of bank hours, present said draft to the secretary of the Ohio Insurance Company at New Albany, payment of which by him was refused. Whereupon” the draft was protested for non-payment. Held sufficient evidence that the bill was duly presented for payment.</p> <p>In the case, supra, although the protest does not state in terms that the bill was presented at the offico of the Ohio Insurance Company, the statement therein made must be regarded as equivalent.</p> <p>A presentment of a bill of exchange at a bank where it is payable is sufficient, although it be made after banking hours, where the regular officer and organ of the bank in the transaction of its business refuses payment, and the refusal is not made because the demand was too late.</p>

<p>In a proceeding in equity against a non-resident^ to attack a debt alleged to be owing to him from one made a defendant to the action and summoned as a garnishee —where it appears that the amount of such debt and the period at which it will become payable are uncertain, depending upon a future contingency — the court can in relation thereto only make such interlocutory order, in the form of an injunction, or otherwise, as will protect the rights of the plaintiff, retaining control of the case for such further and final judgment as the facts afterwards to be'developed, andshownby additional pleadings, may authorize.</p>

CASE 28 — PETITION ORDINARY — APPEAL FROM KENTON CIRCUIT COURT. cited Rev. Stat., Stanton's ed., vol. 2, page 510, secs. 1 and 3. cited Stanton’s Rev. Stat., page 510 ; Civil Code, note (a) to section 671. cited act of MarcliJ.0, 1854, sec. 1, Rev. Stof.,510; 13 B. Mon., 219.

<p>Ono justice of the peace cannot act as an examining court, and commit to jail, or hold to bail, a person charged with felony; another justice must be associated with him. {Crim. Code, sees. 46, 66.)</p> <p>A justice of the peace who shall, without associating with him another justice of the county, assume to exercise the functions of an examining court, by holding to hail or committing to jail a person charged with felony, transcends the clearly defined limits of his authority, and his acts are void, and he thereby renders himself liable in damages to the party injured by-such unauthorized assumption of authority.</p> <p>Where (1) a person, having a special or limited judicial authority, does any act beyond the scope of his authority, or, (2) where, although acting within' the limits of his jurisdiction, he is actuated by malicious or corrupt motives, he renders himself liable as a trespasser to the party injured. In the former case his motives have nothing to do with the question of his liability, excep't so far as the presence or absence of a malicious motive might operate to enhance or mitigate the damages.</p> <p>The privileges of an attorney at law do not protect him from the consequences of procuring or advising a judicial officer to commit an injurious act beyond the'limit of his authority, however correct the intentions and motives of the attorney may be* “When a person, charged with felony, is examined and committed to jail by a single justice of the peace, an attorney who advises the justice to assume such jurisdiction is responsible to the injured party in damages.</p> <p>An instruction unsupported by the evidence is abstract and erroneous.</p> <p>The mere fact that one testifies on behalf of the Commonwealth, before a single justice of the peace who assumes to act as an examining oourt in a prosecution for felony, and to commit the accused, does not render the witness liable to the party injured.</p> <p>In an action of trespass for a personal injury the character of either party is not involved in the issue, and evidence of the good or bad character of the plaintiff is not therefore admissible. So where a justice of the peace, and others advising him, are sued for the wrongful act of the justice in acting alone as an examining court, and committing to jail one charged with felony, evidence relating to the character of the latter is inadmissible.</p> <p>The court of appeals has no jurisdiction of an appeal prosecuted by the defendant, in an action for money or personal property, where the judgment against such defendant is for less than fifty dollars, and not reduced below that sum by set-off or counter-claim.</p>

<p>CASE 30 — PETITION ORDINARY —</p> <p>APPEAL FROM SPENCER CIRCUIT COURT.</p> <p>cited Rev. Statutes, (Stanton's.) 506, sec. 24; lb., 2 val., art. 11, sections 1 to 8 inclusive.</p> <p>cited Civil Code, section 125, sub-div. 4; lb., sec. 29.</p>

<p>The grant of appellate jurisdiction to the court of appeals by the constitution implies the grant of all powers necessary to the proper and complete exercise of such jurisdiction. Among these implied or incidental powers, is the power which the court has of enforcing and effectuating its own judgments and mandates, and of holding its officers to a proper accountability for any default or misfeasance in the execution of its process.</p> <p>The court of appeals has jurisdiction of a motion against a sheriff a,nd his sureties to recover the amount of an execution, which issued from the office of the clerk of said court, and 30 per cent, damages thereon, for failing to return it to the office whence it issued for thirty days after the return day thereof without reasonable excuse for such failure.</p> <p>Although the response of a sheriff, to a motion against him and his sureties for failing to return an execution for thirty days after the return day, states facts constituting a reasonable excuse for such failure, yet such defense is but matter in avoidance, and must be established by evidence.</p> <p>See opinion for facts stated in the sheriff's response, which, if proved, would constitute a valid defense to the motion.</p>

<p>CASE 32 — PETITION EQUITY —</p> <p>APPEAL PROM PENDLETON CIRCUIT COURT.</p> <p>cited 1 Met., 42 ; 2 Stanton’s Rev. Statutes, page 400, sec. 11; 1 Parsons on Contracts, 392-3| 394 ; 18 B. Mon., 649-50 ; 15 B. Mon., 134.</p> <p>cited Stanton’s Rev. Stat., 2d vol., chap. 97, sec. 8, page 398.</p>

<p>CASE 33 — PETITION ORDINARY —</p> <p>APPEAL FROM BOURBON CIRCUIT COURT.</p> <p>cited 11 B. Mon., 62.</p> <p>cited 3 Man., 101; 15 Mass. Rep., 274; 1 Parsons on Contracts, 257.</p>

<p>Where a farm owned "by a feme covert, on which her family, including herself and husband, lived, needed repairs — the fences and buildings, including the dwelling and out-houses on the same, being in a ruinous and dilapidated condition, plank and lumber being necessary to make the dwelling comfortable, and the other houses fit for use in a comfortable manner, and to prevent the same from falling into ruin, and it being necessary for the comfortable and proper use and enjoyment of the land that out-houses should be built — and, for these purposes, lumber and plank wore furnished by the plaintiff, which were so used, and for which the husband and wife executed to the plaintiff the note sued on. Held — that the general estate of the wife in her lands and slaves is liable for the debt.</p> <p>Since the adoption of the Revised Statutes the separate property of a feme covert oannot be charged by her with the payment of debts. She is prohibited from encumbering it in any way, except by order of a court of equity. But her general estate, in land and slaves, is subject to the payment of debts created after marriage on account of necessaries for berself and family, when evidenced by writing signed by herself and husband.</p> <p>That the object and intention of a feme covert} in executing a note with her hus^ band for necessaries for herself and family, was to charge her separate estate with the payment of the debt, and that the payee was apprised of such intention, cannot operate to prevent her general estate from being subjected to the payment of the demand* No express intention on her part, that her general estate should be liable for the debt, was necessary to render it so.</p>

<p>A verbal statement or admission of a party, once satisfactorily proved, is not only competent but convincing testimony against sucb party. But proof of such statement, uncorroborated by other facts or evidence in the case, should be reoeived with caution. The caution, however, should be applied to the proof of the statement, and not to the statement when proved. It is the evidence offered to establish the admission which the jury are to scrutinize, and in receiving which they are to exercise great caution.</p> <p>An instruction to the jury that “the confessions or declarations of a party, in evidence before them, is the weakest and most unsatisfactory kind of evidence, on account of the faoility with which it may be fabricated, and the difficulty of disproving it when false,” is erroneous in confounding the evidence of the admissions with the admissions themselves, and in failing to observe the distinction between them.</p>

<p>CASE 36 — PETITION ORDINARY —</p> <p>APPEAL FROM E3TILL CIRCUIT COURT.</p> <p>cited Civil Code, sections 190; 198, 200, 201 ; 7 Mod., Í30 ; 1 J. J. Mar., 35; Litt. Sel Cases, 450 ; 4 Bibb, 332.</p> <p>cited Rev. Statutes, chap. 91, sec. 14; Civil Code, sec. 190; 1 Met., 389; Litt. Sel Cases, 449; 2 Marsh., 63; 4 Bibb, 505; 3 J. J. Mar., 613; 5 Litt., 208; Civil Code, sections 198, 195; 1 Rev. Stat., 474; 1 Burrill’s Law Die., 245, 246 ; 3 Black. Commentaries, 414, 415; 3 lb., 398; 8 Grat- ■ tan, 702.</p>

<p>CASE 37 — PETITION ORDINARY —</p> <p>APPEAL PROM MERCER CIRCUIT COURT.</p> <p>cited Civil Code, pages 99 and 100; Rev. Slat.,pages 613, 614, 615, 616, 618.</p>

<p>Notice of a motion in the county court, against a sheriff and his sureties, for failing to pay a county creditor a claim due him, must aver that the name of the plaintiff in the motion, (the creditor,) was upon the list of claims furnished the sheriff by the clerk of the county court.</p> <p>The notice must also show that payment of the claim had been demanded of tho sheriff. The notice, in such cases, must contain all the requisites of a petition.</p> <p>Although the defendants in such motion may make default, yet the facts relied upon in the notice must be established by proof.</p> <p>The ten per centum allowed by the statute against a sheriff and his sureties for failing to pay a county creditor a claim allowed by the county court, is not given in the form of interest, or made payable annually, but is given as damages on the amount due.</p>

CASE 39 — PETITION EQUITY — APPEAL PROM SIMPSON EQUITY AND CRIMINAL COURT. In 1856 Simpson purchased of Danthal a house and two lots in the town of Franklin, Simpson county, Ky., for $1,800, in three payments, executing two notes for $400 each, and one for the last payment of $1,000, and a bond for title was executed by the latter to the former, to be conveyed on payment of the purchase money. The first note was paid by Simpson.

<p>Movable property of a decedent passes and is distributed according to tbe law of the country in which iie was domioiled at the time of his death.</p> <p>The law of the matrimonial domicil is the rule which determines the rights of both husband and wife in regard to movables, slavea included, owned by either at the time of marriage.</p> <p>See the opinion for extracts from Story on Conflict of Laws, recognized by the court as general principles touching the rights of husband and wife in relation to the property of the latter at the time of the marriage, as to what exent fixed and determined by the law of the place of marriage.</p> <p>Under the act of 1846, “further to protect the rights of married women,” and the Revised Statutes, the husband, surviving the wife, is only entitled to a life estate in her slaves.</p> <p>Husband and wife were residents of and married in Kentucky, in 1852, she owning slaves at the time of her marriage. They subsequently went to Missouri, taking the-slaves with them; and afterwards took up their residence in Illinois, leaving the slaves in Missouri. In 1853 the wife died in Illinois, leaving no issue alive, and a short ^time afterwards the husband died in the same State. One of the slaves is in this State, and is sued for by the father of the wife, as her heir at law. Meld — that he is entitled to recover.</p>

<p>CASE 41--</p> <p>APPEAL PROM SHELBY CIRCUIT COURT.</p> <p>cited Litt. Sel. Cases, 22; lb., 77; 4 Ddna, 552, 557.</p> <p>cited Litt. Sel. Cases, 22, 77; 7 B. Mon., 579, 580, 582; 3 Litt., 262; 4 Dana, 552; 6 J. J. Mar., 605 ; Pr. Dec., 177; Story’s Eg., 79, 36 ; 9 B. Mon., 369; 14 B. Mon., 110 ; 1 Met., 553; 4 Mon., 445; 1 Dana, 102; Litt. Sel. Cases, 30,212; 4 Bibb, 187; 4 Litt., 208; 1 Met., 71; 4 J. J. Mar., 219; 5 B. Mon., 449; 6 lb., 619; 8/6., 425; 9 lb., 168,384; 4 Dana, 601; Story’s Eg., “specificperformance.”</p> <p>cited 2 J. J. Mar., 222; 2 Story's Eg., sections 763, 793 a; 7 B. Mon., 579; 6/6., 101 ; 12 lb., 604.</p>

<p>Though land bo neither bought nor sold professedly by the acre, the presumption is, that in fixing the price, regard was had on both sides to the quantity which both supposed the estate to consist of. The demand of the vendor and the offer of the purchaser are supposed to be influenced in an equal degree by the quantity which both believed to be the subject of tbeir bargain. Where it is evident that there has been a gross mistake as to quantity, and the complaining party has notbeen guilty of any fraud or culpable negligence, nor has otherwise impaired the equity resulting from the mistake, he may be entitled to relief from the technical or legal effect of his contract, whether it be executed or only executory.</p> <p>Where a misrepresentation is made by the vendor as to the quantity of land sold, though innocently, the right of the purchaser is to have what the vendor can give, with an abatement out of the purchase money for so much as the quantity falls short of the representation.</p> <p>The rule which allows compensation for a deficiency in a tract of land sold and purchased for farming purposes, applies to a sale and purchase of a block of lots in a town, enclosed by fences and circumsoribed by open streets. But the same rule for estimating the value of the deficit should not be applied where the improvements upon the lots, and their adaptation to the purposes to which they are devoted, formed the principal element of the value of the property — in such case the criterion of tho abatement for the deficit is not in the proportion which the deficit bears to the number af acres contained in tho boundary, but the difference in the value of the property, as it was at the time of the sale, and as it was represented to be, taking into-consideration tbe location, size, and value of tho block, with the improvements, the purposes for which it was bought and was used, &c.</p> <p>In a sale and conveyance, in consideration of $9,000, of a block of lots in a town, enclosed by fences, and circumscribed by open streets) the vendor represented that there were six acres of ground, which representation was innocently made. The actual quantity was but a little over/otw acres. There were a dwelling house, school rooms, and other improvements upon the premises. Held — that the purchaser is entitled to an abatement of the purchase money to the extent and for the value of the deficit, to be determined by the difference in the value of tho property as it was at the time of the sale, and as it was represented to be, taking into - consideration the location, size, and value of the block, with the improvements, tho purposes for which it was bought, and waPused, &c.</p>

<p>CASE 43 — PETITION EQUITY —</p> <p>APPEAL FROM MADISON CIRCUIT COURT.</p> <p>cited 1 Metcalfe, 31.</p> <p>cited Revised Statutes, chap. 17, art. 2, sec. 2; 3 Bibb, 15; 4 /. J. Marshall, 592; 1 Bibb, 609; 3 J. J. Marshall, 515; 1 Marshall, 47; 4 Bibb, 502.</p>

<p>CASE 44 — PETITION ORDINARY —</p> <p>APPEAL FROM MADISON CIRCUIT COURT.</p> <p>cited. Rev. Statutes, 16th article, sections 1 and 2, page 263; Morgan's Vade Mecum, vol. 1, page 164; 1 Comyn's Dig., 414, 415; 1 SaUceld, 17, 18; 6 Johns., 62; 9 lb., 329; Story on Bailments, sec. 620 ; Jones on Bailments, page 22; 7 B. Mon., 163; 12 B. Mon., 410 to 420.</p> <p>cited Rev. Statutes, page 377, section 2> title Guards.</p> <p>cited Rev. Statutes, page 377, sec. 2; Criminal Code, sec. 30.</p>

<p>To entitle an officer to the protection which the indemnifying bond of tbe plaintiff in the execution affords him, against the consequences of any violation of the rights of others which he may eommitin levying upon, or in the sale of, person-</p> <p>• al property.under such execution, he must show a strict compliance on his part with the several conditions on which alone such protection is allowed. Those conditions are, that ho shall have taken and returned the indemnifying bond, and that the surety therein was good when it was taken. Each is indispensable to the sufficiency of his defense. {Civil Code, secs. 709, 711.)</p> <p>An execution was levied on the 13th of April upon personal property. The claim•ant, on the 22d of the same month, commenced an action against the officer and others‘to recover the value of the property, and damages for an alleged assault upon the claimant, and the forcible seizure of the property, and on the next day (the 23d,) a bond of indemnity was executed to the officer by tbe plaintiff in the execution, and the sale of the property thereupon made by the officer. It did not appear that the bond bad been returned. Held — that the bond does not present a bar to the action against the officer for the property taken.</p>

<p>CASE 46 — PETITION EQUITY —</p> <p>APPEAL FROM JESSAMINE CIRCUIT COURT.</p> <p>cited Civil Code, sec. 670, sub-div. 4; act of 1855-6, sec. 1; 1 Met., 451; 2 Met., 52; 1 Dana, 168; 14 B. Mon., 638; 3 B. Mon., 451.</p> <p>cited 1 Dana, 166; act of 1856, session acts 1855-6, page 107; 1 Met., 451; 2 Strob. Eq., 317. James Harlan, on same side.</p> <p>cited 1 Hilliard, on Vendors, 4; 26 Penn., 178; 1 Bibb, 523; 2 lb., 509; 4 lb., 296; 17 B. Mon., 631; 7 Peters, 252; 7 Cranch, 34; 10 Peters, 177; 18 B. Mon., 631; ’5 Mon., 293 ; 7 B. Mon., 84 ; 18 B. Mon., 631; 7 Wheaton, 46; 3 Dessaus., 310; 1 Smedes M., 45; 4 Scam., 387; 11 Paige, 21;2 Bibb, 419; 3 Marsh., 542; 9 Vesey, Jr., 87; Browning vs. Jett, MS. opin., January, 1858; Washington, ¿ye. vs. Cates, MS. opin., January, 1858 ; 18 B. Mon., 177; 14 lb., 647 ; 6 Mon., 167.</p> <p>cited Gill (Md.,) 117, Malcolm vs. Hall; Burrill on Assignments, 463, 509, 557.</p>

<p>Where a licensed tavern-keeper has been presented and fined three hundred dollars for a breach of his obligation for the performance of his duties as tavern-keeper, his surety not being a party, and not notified of the proceeding — the latter, in a subsequent motion for a judgment against him, is not affected by the judgment against his principal, hut may contest the breach of the obligation; and he is entitled to ten • days notice, and to a trial of the issue by a jury. (2 Rev. Stat.j 407.)</p> <p>A proceeding against the surety of a tavern-keeper to recover three hundred dollars for a breach of the obligation of such tavern-keeper, (2 Rtv. Stat., 407,) is not for a misdemeanor, and does not come within that section of the Criminal Code which requires the record to be filed in the clerk's office of the court of appeals within sixty days after judgment, to entitle the party to an appeal.</p>

<p>CASE 2 —INDICTMENT—</p> <p>APPEAL FROM WARREN EQUITY AND CRIMINAL COURT.</p>

<p>CASE 3 —BECOGNIZANCE—</p> <p>APPEAL FROM CAMPBELL CIRCUIT COURT.</p> <p>cited Grim, Code, sections 92, 8.1, 82; lb., title 5, chapter 1.</p> <p>cited Grim. Code, sections 343, 92.</p>

CASE 4 — FORFEITED RECOGNIZANCE — APPEAL PROM MARION CIRCUIT COURT. Nathaniel Tharp entered into a bail bond in the penalty of $500, with Darcns Tharp, the appellant, as his surety, for his appearance before the Marion circuit court on the first day of its May term, 1860, to answer a charge of larceny. The bond was entered into befqre a justice of the peace for Marion county.

CASE 5 — FORFEITED RECOGNIZANCE — APPEAL PROM MONTGOMERY CIRCUIT COURT.

CASE 6 —INDICTMENT— APPEAL FROM JEFFERSON CIRCUIT COURT. cited 4 C. fyP., 386; Archbold Cr. Pleading, page 103; 1 Wheeler's Cases, page 203. cited 1 Rev. Slat., 390; Crim. Code, sec. 334; Wharton's Amer. Crim. Law, section 631; lb., sec. 1889, and authorities there cited’, lb., sec. 728; 3 Greenteaf’s Ev.petitions 31 and 34; Roscoe's Crim. Ev., page 875; 2 Russell on Crimes, pages 251-2.

CASE 7 — IN EQUITY — APPEAL PROM MONTGOMERY CIRCUIT COURT. By the deed of 1837 the slave in contest was conveyed to Mrs. Divine until her son, James Wight, who was a child by a previous marriage, should attain the age of twenty-one, and then to the said James Wight.

<p>CASE 8 — PETITION EQUITY —</p> <p>APPEAL PROM BOURBON CIRCUIT COURT.</p> <p>cited 2 Story’s Equity, section 1195; lb., 1199, 1202, 1195; 2 Paige, 217; 1 Bibb, 611; 4 Ire-dell's Eq. Rep., 94; Story's Eq., sec. 1228; 2 lb., sec. 1201, note b ; 1 Stat. Law, 739.</p> <p>cited 1 Bibb, 609 ; 3 Lb., 15 ; 4 Kent's Com., 305 ; 6 Dana, 331 ; 2 Paige, 217; Story's Equity.</p> <p>cited 1 Marsh., 46, 47; 1 White dp Tudor's Leading Cases in Equity, 86; Meigs' Digest, vol. 1, 228; 6 Humphreys, 55, 57 ; Roberts on Frauds, 99 ; 3 Bibb, 15 ; 1 John. Chy. Rep., 582; Hill on Trustees, 94; 3 Mon., 538 ; 8 B. Mon., 541; 3 J. J. Mar., 87; 5 B. Mon., 31.</p> <p>cited 1 White dp Tudor's Leading Cases in Equity, 86 ; 1 Marsh., 46 ; 12 B. Mon., 663 ; 14 Illinois, 505 ; 10 Hare, 209 ; Hill on Trustees, 142, 143, n; 5 Dana, 446 ; Story's Equity, 1258; lb., 1262, 1263; Davies, 154; 15 Penn., 428; 7 Dana, 273; 8 B.'Mon., 541 ; 1 Metcalfe, 104-5 ; 1 J. J. Mar., 404; Hill on Trustees, 392 ; 7 Dana, 165; 1 Met., 597.</p>

<p>In a suit by husband and wife for a debt due to her, or by two partners, or by two devisees to whom land has been devised during their joint lives and then to the survivor, if one dies his right survives to the other. But in a suit by two coparceners, if one dies, though his right may pass to the other by descent, it does not survive to him.</p> <p>Th^e word “survives” is used in the hfftth section of the Civil Code in its technical sense.</p> <p>If the right of a deceased plaintiff descends to his-co-plaintiff, that fact cannot be made to appear except by reviving the action in the name of the survivor as the representative of the decedent. Whore, in such case, the court, under section 558 of the> Civil Code, procoeds to try the case as between the remaining parties, without a revivor, it cannot adjudge all the property sued for to the remaining plaintiffs, but can only adjudge them their portion, leaving the portion of the deceased plaintiffs for future adjudication.</p> <p>Rendering judgment for the defendant upon his counter-claim against infant plaintiffs, before the reply is filed by the guardian ad litem, is fatally erroneous. (18 B. Mon., 558.)</p> <p>Infant plaintiffs in an action in equity have no right to a trial at the same 'term at which their reply, by guardian ad litem, is filed to the defendant's counter-claim. The action of the court, in such case, in overruling the defendant's motion for a continuance, is not a clerical misprision, but an error of the court, which may be reviewod in the court of appeals, though no motion he made in the court helow to vacate the judgment. (Í6 J?. Mon., 345 j Flood & Go. vs. Owsley, MS. opin., June, 1857.)</p>

<p>CASE 10 — PETITION ORDINARY —</p> <p>APPEAL PROM MASON CIRCUIT COURT.</p> <p>cited Civil Code, sections 673, 170, 636.</p> <p>cited Civil Code, sections 170, 670, 614, 167, 168, 173, 673.</p>

<p>The effect of the provision of the Revised Statutes that in suits for alimony and divorce, the husband "shall pay the costs of each party,” &c., is not to entitle the wife suing for but failing to obtain a divorce, to a judgment against the husband for her costs. As the law exempts her from liability to the officers of the court for their costs, the object of the statute was to give to the latter a right to look to the husband, except in the two cases which it provides for.</p>

<p>CASE 12 — PETITION ORDINARY —</p> <p>APPEAL FROM GARRARD CIRGUIT COURT.</p> <p>cited Rev. Stat., chap. 99, sec. 4, 2 vol., page 406; 2 Parsons on Contracts, 252; 14 B. Mon., 419; 5 lb., 218.</p> <p>cited Civil Code,sec. 125; 1 Revised Statutes, page 304; Rule adopted by court of appeals, Oct., 10 1860.</p>

<p>The possession of a tenant is notice to a purchaser — of the actual interest he may have, either as tenant or by an agreement to purchase the premises.</p> <p>A dowress, while in possession of lands and slaves assigned her for dower, purchased of one of the heirs his reversionary interest therein — the purchase of the interest in the land being by executory contract, and that in the slaves by absolute bill of sale. Subsequently, an execution issued against the heir, under which his interest in the land and slaves was levied on and sold. Held — that the title acquired by the purchaser under the execution cannot prevail over the equity of the dowress as purchaser from the heir — her possession being notice of her claim.</p>

<p>CASE 14 — PETITION EQUITY —</p> <p>APPEAL PROM HENDERSON CIRCUIT COURT.</p> <p>cited Civil Code, secs. 586, 587; 13 John. N. T., 308; 7 Cranch, 436 ; Civil Code, secs. 583, 582, 581; 2 J. J. Mar., 163; 5 Dana, 11; Bacon's Ah., “Attorney Bouvier’s Die., “Retraxit4 Mon., 376; 6 John., 296; Dunlap's Paley's Agency, 191 to 193 ; Story on Agency, 96 to 103 ; 1 Blanford, 252; 8 Wendell, 495; 11 John., 465; 5 lb., 58; 6 Mon., 82; 7 Mon., 93 ; 1 Desaus., 469 ; 5 Randolph, 639; 1 Hill, 184; 14 Serg. and Rawle, 307 ; 1 Penn. Rep., 264 ; 4 Dana, 474; 10 John., 220 ; 21 Wend., 263 ; 7 Cranch, 436.</p> <p>cited 5 Dana, 13 ; 8 Dana, 12.</p>

<p>A person arresting a slave in a county bordering on a State where slavery is not allowed, when tbe slave has iled from his owner or person in possession not residing in a border county, is not entitled to the fee of $100 allowed by the act of March 3, 1860, unless he delivers the slave to the owner or person from whom he escaped, or to the jail of the county where the owner resides. A delivery by the taker-up to the jail of the county where the arrest is made, and by the jailer to the owner, will not entitle the taker-up to the compensation allowed by said act.</p>

<p>CASE 16 — IN EQUITY —</p> <p>APPEAfi FROM HOPKINS CIRCUIT COURT.</p> <p>cited 1 Met. 346.</p>

<p>CASE 17 — PETITION EQUITY —</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>cited Revised Statutes, sec. 9, page 205; Civil Code, sec. 268; 2 Dana, 204; Civil Code, see. 235.</p>

<p>Before a judgment can be rendered against a defendant served with a summons in a different county from that in which the action was brought, some disposition should be made of the action as to the defendants served with the summons in the county in which it was brought,* and if it appears from the petition that no cause of action is set forth against such defendants, it will bo erroneous to render judgment against the defendant served with the summons in a different county. ( Civil Code, section 108.)</p> <p>Where, in an action by the assignee of a claim not assignable by statute, the assignor is made a defendant, and served with process in the county in which the action is brought; this docs not authorize judgment against the debtor, served in another county, unless the plaintiff show himself entitled to a recovery against such assignor*</p> <p>See opinion for a ease in which an order overruling an application for a new trial is held not a final judgment, and an appeal therefrom dismissed for want of jurisdiction.</p>

<p>CASE 19 — IN EQUITY —</p> <p>APPEAL PROM MADISON CIRCUIT COURT.</p> <p>cited Rev. Statutes, article 3, page 383.</p>

<p>CASE 1 — BAIL BOND —</p> <p>APPEAL PROM KENTOK CIRCUIT COURT.</p> <p>cited Criminal Code, sees. 49, 258, 260.</p> <p>cited Criminal Code, sections 49, 65, 70.</p>

<p>CASÉ 2 —INDICTMENT—</p> <p>APPEAL FROM WARREN EQUITY AND CRIMINAL COtiUT.</p> <p>cited 1st and 2d sections of act of $358,1 Rev. Stat., page 572.</p>

<p>CASE 3 —INDICTMENT—</p> <p>APPEAL PROM KENTON CIRCUIT COURT.</p> <p>cited Criminal Code, secs. 176, 169', 178; 4 Jones, (N. C.,) 290; 2 SwanfTenn.,) 493 ; 17 Penn., 127; 2 Hawks., 98; 17 Wend., 386; 6 Dana, 295; 9 Yerg., 357; 13 Texas, 168; 1 Swan, 14; 6 Humph., 410; 14 Grat., 592 ; 41 Maine, 165 ; 14 Geo., 8 ; 12 Pick., 496 ; 17 Pick., 400 ; 5 Esp., 107 ; 2 Sira., 1095 ; 1 Carr. $ K„ 494; 8 C. P., 284 ; 11 Mass., 288 ; 2 Sira., 504 ; Roscoe's Crim. Ev., 147, 148, 149; By. fy Moo., 352; Wharton's Amer. Crim. Law, 359; 1 McCord, 286 ; 2 Ash., 31 ; 1 Mass., 15; 1 Met. Ky. Rep., 13; 17 B. Mon., 318 ; Moody Cr. Ca., 289.</p> <p>cited Hale's Pleas of the Crown, vol., 1, paye 305 ; '3 Bacon's Ah., title Evidence (A.;) 2 H. P. C., chap., 46, sec. 18 ; 2 Starkie, 11, 12 ; 1 Greenleaf’s Ev., secs. 335, 379 ; 2 Met., 519 ; 1 Met., 14 ; Roscoe’s Grim. Ev., 154, 155; 1 Yerger, 431 ; 1 Archbold Grim. Prac. and Pleading, 353; 10 John., 95; 2 Virg. Cases, 314; 19 Wend., 377 ; Walker’s Rep., 7, 16, 17 ; 2 Dev. 420; Wharton’s Amer. Crim. Law, sees. 767, 790; 2 Iredell, 402; 1 Gray, 555; 12 Howard, 361'; 17 B. Mon., 318 ; Civil Code, sec. 670; Criminal Code, secs. 334, 179. . ,</p>

<p>CASE 4 —INDICTMENT—</p> <p>APPEAL FROM WARREN EQUITY AND CRIMINAL COURT.</p> <p>cited Criminal Code, sec. 124; Wharton's Amer. Crim. Law, secs. 239, 240, 242, 245.</p>

<p>CASE 5 — PETITION EQUITY —</p> <p>APPKAL FROM MADISON CIRCUIT COURT.</p> <p>cited 2 Met., 356; Rev. Slat., chap. 47, art. 3, sec. 6.</p>

CASE 6 — PETITION EQUITY — APPEALS FROM TOLD CIRCUIT COURT. In 1823 Reuben Anderson died intestate at his residence in Todd county. He was the owner at the time of his death of a number of slaves, and one-third of them was allotted to his widow, Rachel Anderson, as her dower. He left at the time of his death four children.

<p>By tbc charter of the city of Covington, the. city authorities are imperatively required to keep the streets, &c., clean aud in repair when they have been once improved; and their action is ministerial.</p> <p>The city council would subject itself to an indictment for suffering a street to become out of repair and remain in that condition. (7 J3. Mon., 38.)</p> <p>Where it is the duty of the city council to keep tbc streets iu repair, and, in consequence of the dilapidated and ruinous condition of a street, it has become inconvenient and dangerous for carriages and other vehicles to pass along it, and houses fronting on such street are in danger of being destroyed by reason thereof and the negligence and failure of the council to repair it, the owners of such houses, residing therein, may maintain a writ of mandamus against the council to compel them to have the street repaired. (10 Casey, 296 ; lb., 508; Civil Code, sec. 526.)</p>

<p>Suit upon a note against tbfeo obligora ; two of thorn aro served with process, and judgment rendered against thorn, and they replovy the same. Process is subsequently served on the other defendant, as to whom the case had been continued. Held— that he cannot rely upon the judgment against hia co-defendants, and the replevy of 'the'same by them, in bar'of the’action as to him. (Civil Code, section 399.)</p> <p>The two cases reported in 1 Mon., pages 89, 248, have no application to the rules of practice now in force as to the question, supra.</p>

<p>An order of a court of equity, confirming a commissioner's sale made under its direction, is a final order or judgment, which cannot — upon the response of the purchaser to a rule issued against him requiring him to pay the purchase money into court or show cause to the contrary — he vacated, after the time when the court ceases to have power over its final judgments or orders. In the Louisville chancery court this timéis sixty days after their rendition. (Civil Code, sec. 800.) If, however, the sale can he shown to he void, the chancellor may disregard the order of confirmation, and relieve the purchaser. (18 B. Moiu, 390; 1 Mct.t 281.)</p>

CASE 10 — PETITION ORDINARY — APPEAL PROM GREEN CIRGUIT COURT. cited Civil Code, sec. 144; lb., sec. 125, sub-div. 3 ; 2 Story's Eq., sec. 1427, and authorities referred to in note 1; lb., sec. 1428; 1 Parsons on Contracts, pages 298, 299, 300, and notes d, e, /; 3 Marsh., 302; 4 Mon., 371 ; 7 J. J. Mar., 12; Civil Code, sections 4, 7, 9, sub-div. 2. cited 2 Bibb, 170; 3 Mon., 95 ; 5 Mon., 582 ; 6 Mon., 41 ; 7 J. J. Mar., 164; 2 Dana, 465; 1 Met., 239 ; 2 Marsh., 83 ; 2…

<p>CASE 11 — PETITION ORDINARY —</p> <p>APPEAL PROM PRANKLIN CIRCUIT COURT.</p> <p>cited Civil Code, secs. 30, 33 ; Rev. Stat., chap. 43, sec. 7; Civil Code, sec. 53.</p> <p>cited Civil Code, sec. 33. John Rodman, for appellee, cited Ckitty's Pleading, 285; 13 B. Mon., 194 ; Civil Code, secs. 53, 30, 33.</p>

<p>CASE 12 — PETITION EQUITY —</p> <p>APPEAL PROM CARTER CIRCUIT COURT*</p>

<p>CASE 13 — PETITION EQUITY —</p> <p>APPEAL PROM BOONE CIRCUIT COURT.</p> <p>cited 1 Bibb, 201.</p>

<p>UASE 14 — PETITION ORDINARY —</p> <p>APPEAL FROM FRANKLIN CIRCUIT OOURT^</p> <p>cited 3 Mon., 108; 9 B. Mon., 242; 4 Litt., 34; lb., 47; 3 Pick., 207 ; 18 B. Mon., 643; Fleming vs. Haynes, 2 Eng. Com. Law Rep. ; 1 lb., 14; 14 John., 378; Chitty on Contracts, 595, 8th 'Am. Ed.; Story on Contracts, subject “moral consideration,” and notes, Ed.</p> <p>cited Chitty on Contracts, 685, 689 and notes; 8 B. Mon., 599.</p>

<p>Upon a petition by the guardian for the sale of the real estate of infants, if the report of the commissioners fails to show that tho estate valued and reported by them was all of the real and personal estate of the infants, the sale is void. (18 B. Mon., 782; 2 Met., 515.)</p> <p>In such case the commissioners are as much required to report whether the interest of the infant “requires” the sale to be made, as they are to report the net value and annual profits of the estate; and a failure in this respect renders the sale void. A report that the sale would “redound” to the interest of the infant does not confer jurisdiction to order the sale, and, if made, it will be void. The law requires the guardian to allege his belief that the sale will redound to tho benefit of the infant, but the report of the commissioners must state that the interest of the infant requires the sale to be made; and the order appointing them should give such direction.</p> <p>Until the statutory guardian's petition for tho sale of real estate of the ward is filed, the court has no right to appoint commissioners to value the ward's estate.</p>

<p>CASE 16 —MOTION—</p> <p>APPEAL FROM BULLITT CIRCUIT COURT.</p> <p>cited act of 1796, sec. 2; 1 Stat. Law, 739; Withers vs. Smith, 4 Bibb; Craig vs. Payne, 4 Bibb ; Ferguson vs. White, 1 Marsh ; Fightmaster vs. Beasley, 7 J. J. Mar.; Davidson’s exe’r. vs. Nunnelly, 3 B. Mon.; Commonwealth vs. ¡Richardson, 7 B. Mon.; Blair vs. Dade's exe’rs., 9 B. Mon.; McClanahan vs. Beasley 17 B. Mon., 4 B. Mon. 445; sec. 13 Statute of Wills of 1796-7.</p> <p>cited 3 Mon., 537; 4 J. J. Mar., 140; 3 B. Mon., 534; 2d section of act of 1796; 1 Statute Law, 739; 5 J. J. Mar., 468; 4 B. Mon., 445; 1 Stat. Law, 740, 741; 4 Dana, 258; 3 B. Mon., 218; 4 B. Mon., 451; lb., 244; 8 B. Mon., 442; 17 B. Mon., 631; 8 B. Mon., 91.</p> <p>cited 3 Mon., 537; 4 J. J. Mar., 140; Stat. of Frauds 1796, sec. 2; Rev. Statutes pages 551— 2, sec. 4.</p>

<p>Under the second section of chapter seven of the Revised Statutes, a steamboat is liable, (1,) for any damages unlawfully done by the boat to any other boat, vessel, &c., or to any other property, through the willful or negligent conduct of her officers or erew •, and (2,) for any other damage willfully or negligently committed by her officers or crew, while acting for her as such — although, at the time of the injury complained of, the steamer had been chartered by the owners to other persons, and the injury was done by the officers and crew employed on the boat by the charterers, and not by the ownerB.</p> <p>Quere. In such case, would the owners be personally liable for the injury, or would the personal liability rost upon the charterers, as temporary owners within the meaning of the statute, supra‡</p> <p>Quere. Under the first section of the chapter, supra, does a lien exist on a steamboat for debts for supplies, materials, &c., contracted by persons who had chartered ifc from the owners ? "Whether the decision in the case of Parmele vs. Steamer Mary Stevens** — wherein it was held that in such case no lien existed on the boat — is to be deemed altogether authoritative, is questionable.</p>

<p>CASE 18 — PETITION ORDINARY —</p> <p>APPEAL PROM WAYNE CIRCUIT COURT.</p> <p>cited Civil Code, secs. 190, 198.</p>

<p>The act of 1856, to prevent fraudulent assignments in trust for creditors, &c., does not render the sales, mortgages and assignments, therein mentioned, void, but merely declares that they shall operate as an assignment and transfer of all the -property and effects of the debtor, and shall enure to the benefit of all his creditors, &c.</p> <p>A creditor who would assail a mortgage or other conveyance, on the ground that it was made by the debtor in contemplation of insolvency, and with the design to prefer one or more creditors to the exclusion of others, must do so by a petition in equity filed within six months after tho recording of such transfer, &c. He cannot do'so by suing out execution against such debtor and causing it to be levied upon the property* or gain any advantage thereby over the other creditors.</p>

<p>Under the law in force in 1843 a feme covert had the power, by uniting with her husband in a conveyance, properly acknowledged, to divest herself of any interest in real estate ; but she had no power to make contracts respecting any property except land. (5 B. Mon., 81; 1 Met., 235.)</p> <p>Transfer by the husband, in 1843, of the wife’s interest in remainder in slaves and personalty, did not bar her equitable right to a settlement. That she united with him in the deed, and received a portion of tho purchase money, does not operate as an equitable estoppel. All that the purchaser could ask in such case, and all that the chancellor would require at her hands, would be that she should refund the money thus received before she could obtain rolief. The parties should be placed in stain quo. This case is unlike Arnold vs. Wright, (14 B. Mon., 638.)</p> <p>Matters in avoidance in an answer and cross-petition, not in tho nature of a counter-claim or set-off, cannot, for want of a reply, be taken as true. r</p>

<p>A purchaser of property under a decretal sale does not acquire any independent right by bis purchase, until after the same has been approved by the chancellor. He is simply an accepted or preferred bidder; and whether his bid or proposal will be approved, depends upon the sound equitable discretion of the court having control of the cause. (3 Dana, 614; 2 B. Mon., 410 ; 6 /&., 494.)</p> <p>Where a person having general authority from the payee of a note to collect the same, proceeds in the name of the payee as plaintiff to enforce alien upon the property for which the note was executed, third persons, not cognizant of any limitation upon the power of the person prosecuting the suit, will be shielded from responsibility to the plaintiff, and protected in any rights they may acquire under the judgment, as purchasers of the property.</p> <p>See the opinion for a caso in which, on-account of the inadequacy of price, and the peculiar circumstances attending the transaction, detailed in the opinion, a decretal sale was set aside upon a petition by tbe plaintiff filed before the sale was reported for confirmation by the commissioner.</p>

<p>A decree is a judgment, according to the definition of a judgment contained in the Civil Coda, section 397. Honoe the provisions of the Code, concerning judgments, apply also to decrees.</p> <p>The provisions of the Civil Code (title 9, chap. 4,) concerning the “revivor of judgments,” apply to all judgments whether rendered before or after the Code took effect. The proceeding by scire facias is not supported by those provisions, and is therefore unauthorized. (Civil Code, see. 875.)</p>

<p>CASE 23 — PETITION EQUITY —</p> <p>APPEAL FROM BOURBON CIRCUIT COURT.</p> <p>cited.6 Dana, 207; 7 B. Mon., 573; 1 Story’s Equity, sec. 317; 7 J. J. Miar., 239; 2 B. Chy. Rep., 211; 2 Kent, 244; 5 Dana, 133; 1 Johnson’s Chy Rep., 510; 5 Dana, 594; 6/6., 6; 7 B. Mon., 1.71; Rev. Stat., 375, ‘sec. 10; Civil Code, sec. 167; 4 Johnson’s - Chy. Rep., 284; 6 B. Mon., 357.</p> <p>cited 6 J. J. Mar., 199; 5-.J. J. Mar., 35; 3 Dana, 376; 5 Dana, 153; 1 B. Mon., 231; 6 Dana, 3; 5 Dana, 594; 2 B. Mon., 261; 3 lb., 153; Hill on Trustees, 787; 7 B. Mon., 554; 10 B. Mon., 413; Hill on Trustees, 548, (374;) 6 Dana, 207.</p>

<p>CASE 24 — PETITION EQUITY —</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>cited 2 Chilly's Pleading, 264-7; Story on Sales, secs. 314, 436; Sedgwick on the Measure of Damages, 282-9; 2 Kent, 504; Parsons on Mer. Law, 46; Civil Code, sec. 123.</p> <p>cited Story on Sales, chap. 7, secs. 232, 239; lb., chap. 1, sec. 1; Story on Sales, secs. 368, 380; 4 Camp. Rep., 144; Story on Contracts, secs. 23,24; Story on Sales, secs. 244 — 5 ; Civil Code, sec. 153.</p>

<p>CASE 25 — PETITION EQUITY —</p> <p>APPEAL EROJI LOUISVILLE CHANCERY COURT.</p> <p>cited 1 B. Mon., 73; Civil Code, sec. 276. •</p> <p>cited 2 Met., 214; McKee vs. Pope, 18 B. Mon.; 1 & lb., 557; Civil Code, sections 273,274,276, 280 ; 1 B. Mon., 73; Brennan vs. Black, 5 Dana.</p> <p>cited 2 Story’s Eg. Pleading, sec. 408, a; Civil Code, sec. 800; Civil Code, sub-div. 2 of art. 3 ; lb., sections 273, 276, 283, 284, 254, 235, 268, 239, 810; 4 Bibb, 336; lb., 508; Bustard vs. Gates, ¿pc., 4 Dana.</p>

CASE 26 — PETITION ORDINARY — APPEAL FROM SCOTT CIRCUIT COURT. cited ls£ section act of 24th May, 1861; 2 Met., 221; 3 Ohio, 475; 6 lb., 179; Constitution Ky., sec. 1, art. 2; lb., sections 16, 17, art. 4; lb., sec. 16, art. 13; 1 Bibb, 567 ; 2 lb., 202 ; 4 Litt. 60. cited section 1 of act approved 24th May, 1861. cited 4 Littell, 35; lb., 47; 5 Mon., 98; 7 Mon , 11; lb.', 50 ; lb., 588; 1 J. J. Marsh., 284 ; 7 B. Mon., 168 ; 13 B. Mon., 285; 12 Wheaton, 213 ; and the…

<p>CASE'27 — PETITION ORDINARY —</p> <p>APPEAL PROM KENTON CIRGUIT COURT.</p>

<p>CASE 28 — IN EQUITY —</p> <p>APPEAL FROM MONTGOMERY CIRCUIT COURT.</p>

<p>A will gave to a devisee a defeasible fee in land and in a slave, subject to divestiture if she should die without issue, upon which event the fee was to vest in her co-devisees or their children then living. This was an executory devise; and neither tho-conveyance of the property by tho holder of the defeasible fee, nor the possession of it by the ¡purchaser claiming it as Ms own, no matter bow long continued, before the happening of the contingency upon which the executory devise was to take effect, could defeat the rights of the executory devisees. (5 Littell, 312.)</p> <p>A warranty bars the warrantor from claiming land under a subsequently acquired titlo, and also bars his heirs to the extent of assets received from the warrantor.</p> <p>• A will-provides that if any of the devisees, (the testator's children,) die without issue, such estate as they may receive by the will should be equally divided among those that may be alive, and the children of those then dead? A portion of them, in consideration of love and affection, signed a writing stipulating that they disclaimed tho contingent interest which might accrue to them under the will as to the portions allotted to two of the devisees. Tho contract was afterwards executed by one of tho covenantors. .Held — that such execution rendered the contract obligatory upon the others, even conceding that they would not otherwise be bound. (7 B. Mon., 213.)</p> <p>Mutual covenants of warranty, contained in a deed of partition of land, form a sufficient consideration for each other, and bind the covenantors capable of contracting.</p> <p>In equity, devisees and legatees arc barred by tbe testator's warranty, to tbc extent of assets real or personal. This is equally applicable to covenants relating to tho title to slaves. The principle upon which the heir is barred, is equally applicable to legatees and deviseos. And tbe criterion is not merely tho value of the land or slaves claimed, at tho date of the warranty, but the value of the assets real or personal.</p> <p>That a rule of law or equity is embodied in tbe Revised Statutes does not raise a presumption that such was not the law before.</p> <p>Husband, surviving the wife, is entitled to her cboses in action, and the equitable right thereto will pass to his executors, although they could not maintain an ordinary action thoroon without administering upon her estate. See the opinion for a state of case, where, in equity, the executors of the husband were allowed tho benefit of a * covenant to the wife, without administration upon her estate.</p> <p>A feme covert cannot bind herself by her warranty in a deed for land. (16 B. Mon., 637; 2 Hffli.,139.)</p> <p>|. A tenant in common, owning three-fifths of certain slaves, devised to them their i;freedom. Held — that tho tenancy in common was thereby destroyed. It was a con- / version by the testator, which deprived his former co-tenants of any right to tho slaves, and turned their claim thereto into a money demand against his estate. (14 John., 188 j 8 B. Mon., 544.)</p> <p>Where a right of the wifo has been converted into a demand for money, to which, if recovered, her husband would be entitled, tho claim will bo barred by his warranty.</p> <p>Covenants real run with the land, andif broken, the right of action is in the transferee of the covenantee.</p>