Volume 61 — Kentucky Reports

<p>APPEAL PROM THE CAMPBELL CIRCUIT COURT,</p> <p>1. There is no provision of tho Constitution of Kentucky, which indicates an intention to deprive the legislature of the power which it possessed, without constitutional grant, to punish a person for challenging, in this State, any one, whether a citizen or alien.</p> <p>2. The act of the legislature to punish dueling is not limited to duels between citizens of this State.</p> <p>. 3. An indictment against one for challenging another to fight in single combat with deadiy weapons, is sufficient, although it does not aver that the paper therein copied and averred to have been meant and' intended by the former as a challenge, was so understood by the parties. Such an avorment was unnecessary. (3 Dana, 418.)</p> <p>4. The statements of awitness as to the rulos of the code duello, in relation to sending and accepting challenges, upon an indietment against a party for sending a challenge, are inadmissible.</p> <p>5. Facts stated in the opinion, which the court pronounce sufficient foundation for admitting as evidence, in a prosecution for sending a challenge to fight a duel, letters of persons alleged to have acted as the seconds of the parties; also to excuse the production of the original letters between tho principals and their seconds, and to allow the Commonwealth to prove printed copies of the correspondence between them.</p>

<p>CASE 2 —</p> <p>cited Grim. Code, secs. 121, 349, 273; 13 E. Mon., 4156; Goddard vs. Maddock, Mss. Opin. Dec. 1854; Tomlin vs. Commonwealth, Mss Opin., Dec. 1855; 16 B. Mon., 34; 17 B. Mon., 409; Constitution of Kentucky, art. 8, sec. 20; 3 Dana, 419; 6 J. J. Marshall, 119; 1 Dana, 524; 1 Greenleaf Ev.,secs. 82, 88; 3 Dana, 396.</p>

<p>APPEAL PROM FRANKLIN CIRCUIT COURT.</p> <p>Under the statute of Louisiana a protest by a notary after a presentment by his deputy is authorized; and a certificate of protest by the notary, although it shows that payment of the bill was demanded by his deputy, is valid. The statute quoted and construed.</p>

<p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>1. Where a condition of a policy of insurance requires the insured to deliver an account of their loss, with their oath or affirmation declaring the account to be true and just, &c., the affidavit of the insured is admissible to prove a compliance with such condition, but for no other purpose, and the court should so inform the jury.</p> <p>2. If a policy of insurance has ceased to have any effect, by reason of the insured having kept prohibited articles in the house, a promiso by the insurer’s agent, having authority to adjust and pay losses, with knowledge that the prohibited articles were kept in the house at the time of the fire, will not bind his principal.</p> <p>3. A firm obtained insurance upon a storehouse and the stock of goods therein for a separate sum. The interest of the insured in the house was inoorrectly described in the policy as belonging to the firm, whereas it was the property of one of its members. In a suit brought to recover for the loss of the goods — Held, in the absence of proof that the plaintiffs procured the insurance upon the house for a fraudulent purpose, or that their supposed interest in the house induced the defendant to insure the goods, that this does not vitiate the insurance on the goods.</p> <p>4. Tho constructive possession of the sheriff by virtue of the lovy of an execution upon goods which have been insured, where the insured retains the actual possession, does not vitiate the policy. Otherwise where a conveyance is made which terminates tho interest of the insured in tho goods.</p> <p>5. Although a policy of insurance contains a clause prohibiting “any. transfer of the interest of the insured by sale or otherwise,” without the consent of the insurer, yet a deed made by the insured, conveying the goods to assignees in trust to pay creditors, will not render the policy void, the insured retaining the actual possession of tho goods.</p> <p>6. If by the terms of a policy of insurance the keeping or storing of certain articles on the insured premises is prohibited during its continuance, and the policy only suspended whilst they are so used, the policy is not thereby rendered void.</p> <p>*1. Tho conditions and enumerations of hazards form parts of the policy, and if articles prohibited by tho policy (whether by provisions in the body of it or annexed to it) are kept by tho insured, the burden is not upon tho insurer to show that tho keeping thereof causod tho loss or increased the risk. (1 Phillips on Ins. sec. 866.) But tho keeping of such articles by the insured, when the policy was obtained, did not render it void unless they concealed that fact from the insurer.</p> <p>8. Proof of matter not alleged inadmissible.</p> <p>9. In an action against an insurer, the defendant, not being presumed to know what prohibited articles were kept by the plaintiff when the loss occurred, is not bound to specify them in his pleadings. But where he specifies some, without alleging that any others wero kept, the jury should not be permitted to consider any ox-copt those specified.</p>

<p>CASE 5 — PETITION ORDINARY</p> <p>cited 2 Revised Statutes, sec. 1 p. 119; 4 Lilt., 123; Bolton vs. Martin,! Dallas; 2 Star Me, 142; 2 Greenleaf, 150; 7 Johnson, 442.</p> <p>cited 1 Chiity's Pleading, top page, 385; 4Litl., 122; Edwards on Bills, 162, 163; 13 Peters, 205.</p>

<p>APPEAL FROM THE SCOTT CIRCUIT COURT.</p> <p>See the opinion for a statement of facts in.this case adjudged sufficient to bring it within the oporation of the act of 1856, prohibiting sales, &c , made by debtors in contemplation of insolvency, and with the design to prefer one or more creditors to the exclusion in whole or in part of others.</p>

<p>APPEAL PROM PRA.NKLI1T CIRCUIT COURT.</p> <p>1. “As I intend starting in a few days to the State of Missouri, and should anything happen that I should not return alive, my wish is, that all of my land,” &o., [going on to devise an estate.] The author of the paper made the contemplated trip, returned to Kentucky and died. Held, that the instrument is contingent and inoperative as a will.</p> <p>2. See opinion for the subsequent acts, parol and written declarations of the decedent, held not sufficient to establish a re-execution or republication of the instrument as a will.</p> <p>3. Quere. Can a contingent will, after the happening of the event which was to terminate its effect, be revived by any kind of a re-execution which would give it the force of a will?</p> <p>4. The case of Maxwell's will, (3 Metcalfe, 101,) cited and approved.</p>

<p>APPEAL, PROM THIS CLARKE CIRCUIT COURT.</p> <p>1. A judgment cannot be final merely .because it deoidcs some question of law or £act, relating even to final relief, nor merely because it decides what are the rights of the parties as to such relief.</p> <p>2. A judgment to bo final must not merely decide that one of the parties is entitled to relief of a final character, but must give.that relief by its own force, or bo enforceable for that purpose without further action by the court or by process for contempt.</p> <p>3. See the opinion for a discussion of the question suppa, and citation of authorities,</p>

<p>APPEAL FROM THE WOODFORD. CIRCUIT. COURT, .</p> <p>1. An alien cannot inherit land in this State. (Bardin 63’; 2 Metí, 187;) But sua\* alien friend, residing in this State two years, is entitled to reoeive, hold and pass, any right to land within the Commonwealth during the continuance of his residencO'after that period. (1 ¿Statute Law, 112; 1 llcoised Statutes, 239.)</p> <p>2. Treaties take effect, as to the governments making them, from the date of their oxocution, unless they contain stipulations to the contrary. But in regard to individual rights the rule is that the ratification of the treaty must be deemed its date.</p> <p>3. By the constitution of the United States where a treaty, made under the authority of the United States, conflicts with a law of the State, the law must giv# way to the extent of its conflict with such treaty.</p> <p>4. It is a well settled rule that where a State law is deemed unconstitutional, bo-cause opposed to the constitution, laws and treaties of the federal government, it is only void so far as it contravenes the constitution, laws or treaties.</p> <p>5. Where, by a treaty with a foreign nation, foreigners are allowed three yeara within which to claim real estate coining to them in this State by devise or dcsccDfc, and to make disposition thereof, they must assert their right within that period, because Ihoro is nothing forbidding tho State legislation which denies the right to that' class of persons after that time — the State law being so far affected by the treaty as to become inoperative for that period but no further.</p> <p>0. See tho opinion as to tho scope, construction and effect of certain treaty stipulations betweon tho United States and the Swiss Confederation in relation to tho queslion of tho right of citizens of Switzerland to acquire or hold by devise or descent an interest in real estato or its proceeds in Kentucky.</p>

<p>APPEAL FROST GARRARD CIRCUIT COURT.</p> <p>1. Tho statute authorizing the sale of tbo real estate of infants must bo strictly complied with. The report of the commissioners appointed to appraise the estato of tho infants, must be full and explicit on all the matters w,hieh, by the statute, they are required to ascertain and report to the court. Without this the court has no jurisdiction to decree a sale.</p> <p>2. Among other things the report of tho commissioners must show “the net value of the real and personal estate, and the annual profits thereof.” See the opinion for a report held insufficient in its statement of tho value of the infants estate, as well as in other respects. It must state tho 11 net value.”</p> <p>3. An order appointing commissioners authorized them simply to “valuó tho infants real estate.” It may well be questioned whothor such defect in tho order of appointment would be cured by a report subsequently made in coniormity with tho law and approved by the court — a point not decided.,</p>

<p>APPEALS FKOIt THE SCOTT CIKCDIT CODKT.</p> <p>The 1st section of the act of May 24th, 1861, ^Sessson Acts, page 2,) forbidding the rendition of judgments for money for the period therein named, is constitutional. The principles settled in the case of Johnson vs. Higgins, (3 Metcalfe, 507,) holding it to he constitutional, are approved.</p>

<p>CASE 12 — PETITION ORDINARY</p> <p>cited Civil Code, sec. 133 ; 16 B. Mon., 201 ; 6 J. J. Mar., 129; 2 B. Mon., 29» ; 16 B. Mon., 201.</p> <p>cited 13 B. Mon..,- 391 ; 16 lb., 575 ; 14 lb., 352; 10 lb., 268 ; Story on Prom. Notes, sees. 194, 195.</p>

<p>APPEAL PROM JEFFERSON CIRCUIT COURT.</p> <p>1. An instrument in writing recites that “for the satisfaction and security of J. M." it proceeds to “restate” a subsisting parol agreement or understanding, the substance •iof which is set forth in tho instrument. Held, that the writing is a covenant, binding as such on the parties, and not a mere memorandum of the prior parol agree-binent.</p> <p>2. All written contracts are, in a certain sense, but restatements of a pre-existing ..parol agreement between the parties. And the more fact that the written memorial ■ contains such a recital, cannot operate so to change the character and legal effect of «the instrument as to reduce it from the grade and dignity of a covenant.</p>

<p>APPEAL PROM SCOTT CIRCUIT COURT.</p> <p>1. An act of the General Assembly, which provides that it shall take effect from its passage,, takes effect on the day of its approval by the Governor, and must be regarded as being in force during the whole day upon which it is approved, in conformity to the general rule that where a computation is to be made from an act done, the day upon which the act is done is to be included. .</p> <p>2. A judgment was rendered on the 24th day of May, 1861, for debt due by note, the same day on which the Governor approved the act, entitled, <{ an act to suspend the circuit and other courts in this commonwealth, and for other purposes,” by which the rendition of such judgments was prohibited from the passage of the act until the 1st day of January, 1862. It did not appear at what hour the act was approved, norat what hour the judgment was rendered. Held, That the judgment was improperly rendered, because the act was in force during the whole of the day.</p>

<p>CASE 15 —</p> <p>cited Rev. Stat., chap. 56, art. 2, sec. 5; Civil Code, secs. 242, 243; 2 Met,, 445.</p> <p>cited sec. 5, art. 2, chap. 56, Rev. Statutes.</p>

<p>APPEAL PROM MASON CIRCUIT COURT.</p> <p>1. The payor of a note, when sued "by an assignee, has not merely an equitable* but a legal right to avail himself, as matter of defense, of any usury embraced in the note, or of any payments made to the payee before notice of the assignment.</p> <p>2. If an answer presents merely matter of defense, it cannot be treated as a set-off or counter-claim, though it may be so called by the defendant.</p> <p>3. Payor of a note, sued by assignee of payee, pleads certain payments to payee before notice of the assignment, as a set-off, and usurious interest embraced in the note, as a counter-claim. Held, That the answer presents only matter of defense, and no reply is necessary j and that the assignor is not a necessary party to the controversy between the payor and assignee.</p>

<p>APPEAL PROM FLEMING- CIRCUIT COURT.</p> <p>1. The release by a wife of her potential right of dower forms a valuable consideration, sufficient to sustain a settlement upon her by.her husband, even against his-^creditors.</p> <p>2. An agreement by a husband to transfer to his wife a note, for a part of the purchase money, for her separate use, in consideration of her release of her potontial right of dower in land sold by him, is binding in equity, and may, upon her application, be specifically enforced against him.</p> <p>3. Between equities that which is prior in time must prevail.</p> <p>4. Section 11, of chap. 24, of the Revised Statutes, does not avoid an unrecorded assignment in behalf of creditors having notice thereof before the acquisition of a legal title to the property. (17 B. Mon., 625.)</p> <p>5. A husband sold land in which his wife had a potential right of dower, which she refused to release unloss ho would givo her one of the notes which he had taken from the purchaser. He agreed to assign the note to her for her separate use, and delivered it to her, endorsed, *‘I assign the within note to 0. W., [the wife,] for satisfactory consideration.Ho trustee was named, nor was the assignment recorded* She then signed and acknowledged the deed. Afterwards his creditors sought to subject the note, when she asserted her claim thereto. Held, That against the subsequent creditors aha is entitled to the note. Against the prior creditors she is entitled to the value of her potential right of dower at the time she released it, with interest; the residue, if any, due upon the note, to go to the prior creditors.</p>

<p>APPEAL PROM MALISON CIRCUIT COURT.</p> <p>1. In a proceeding lor the sale of infants’ real estate under the statute, the record must show that the commissioners, appointed to report the net value of the infants'* estate, <fce., were sworn; otherwise the court has no jurisdiction to order a sale, and the sale, if made, will be yoid.</p> <p>2. The report of the commissioners must show whether the interest of the infants requires the sale to be made, or the sale will be void. It will not be sufficient to state that in their opinion “it would redound to the benefit of the said infants to have said land sold»”</p>

<p>APPEAL PROM THE FRANKLIN CIRCUIT COURT.</p> <p>1. The liability of the city of Louisville to the commonwealth for the $2,000 per annum requirod by the act of March 10, 1856, to be paid into the treasury, in consideration of the fines and forfeitures recovered in favor of the commonwealth in tho city court of Louisville, is that of a debtor to the commonwealth, not that of a collector or receiver of public moneys; and judgment cannot be obtained therefor without notice of the motion.</p> <p>2. Section 1, of article 12, chapter 83, of the Revised Statutes, has been superceded by the provisions of the Civil Code, which prescribes the remedies against defaulting collectors and receivers of the public moneys.</p> <p>3. See the opinion for a reference to the laws relating to the questions supra.</p>

<p>CASE 2 — BASTABDY CASE</p> <p>cited 3 Lit tell, 284 ; act of March 8, 1862 ; 6 J. J. Mar., 585; Rev. Siat., chap. 6, sec. 10.</p> <p>cited act March 11, 1862,page 69, General Laws.</p>

<p>CASE 3 — EOREEITED RECOGNIZANCE</p> <p>cited Civil Code, secs. 15, 16,</p>

<p>APPEAL PROM FRANKLIN CIRCUIT COURT.</p> <p>1. Mere lapse of fifteen years and a few days, without execution upon a judgment, does not raise a presumption of payment.</p> <p>2. The title of an act, passed in 1858, is, “An act to amend the second section of * article sixty*three, of the Revised Statutes, entitled, 'limitation of actions and suits,” The act declared “that the provisions of chapter sixty-three, of the Revised Statutes, shall extend to and embrace all cases in which the right of action accrued, whether before or after the Revised Statutes took effect, from and after the first day of August, 1859.” Held That the act, or so much of it as applies to any other subject than that expressed in the title, is unconstitutional, inoperative and void.</p> <p>3. In Sept. 1839, a judgment was rendered, on which an execution soon after-wards issued, and was returned, “No property found.” A second execution issued in July, 1846, which, in September following, was also returned, “No property found.” No other step occurred until Oct. 8th, 1861, when a third execution was s ued out, which the defendant moved to quash, relying upon presumption of payment and limitation, ffeld, That the facts do not raise a presumption of payment, and that at the time this proceeding was commenced, there was no statute of limitation in force applicable to the judgment on which the execution issued.</p>

<p>CASE 5 — PETITION ORDINARY</p> <p>cited 1 IAttett, 167; 15 B. Mon.,</p> <p>604; 1 Met., 488.</p>

<p>CASE 6 — PETITION ORDINARY</p>

<p>CASE I — PETITION ORDINARY</p> <p>cited 3 Bibb, 49 ; 3 Chitty Pleadr ing, 1159 ; 69 Eng. C. L. R., 1046.</p> <p>cited • Civil Code, secs. 126, 128.</p> <p>cited Civil Code, secs. 126, 401, 128 ; 3 Met., 322-3.</p>

<p>APPEAL. FROM BULLITT CIRCUIT COURT.</p> <p>1. Antenuptial executory contracts between husband and wife, to bo performed ■during marriage, havebeen frequently enforced in equity, although void at law.</p> <p>2. “Conveyances from husband to wife, .without a trustee, have been frequently lupporied in equity, although at law, as a general rule, executed as well as executo-ry contracts between them, without a trustee, are void.</p> <p>8. At law the husband is entitled to a note given to his wife by a stranger. Yet, where the purchaser of land executed a note payable to the vendor's wife, in pursuance of an agreement between the husband and wife, and in consideration of her releasing dower, her right to the Dote was sustained in equity.</p> <p>4. A husband is legally entitled to his wife's earnings, but bis agreement to giye them to her has been hold valid in equity.</p> <p>5. Executory oontraots between husband and wife, without the intervention of a trustee, have been held to bo valid in equity. As a general rule, wherever a contract would be good at law, when made with trustees for the wife, that contract will he sustained in equity when made by husband and wife with each other without the intervention of trustees, if it does not affect the rights of third persons.</p> <p>6. If, in consideration of a married waman conveying her land and slaves for her husband's benefit, he agrees to pay the value of her interest to a trustee for her separate use, the contract will be valid at law. If there is no trustee, her equitable right to the money will not be defeated, because whenever a separate use is created for a married woman, whether by her husband or by a stranger, whether by an executed or executory contract, equity will if necessary make her husband ber trustee.</p> <p>7. Nor is it necossary, in order to give her a right to the money for her separate use, that the notes of the husband to her should be so expressed. Though a stranger’s conveyance of property or covenant to pay money to a married woman, or to a trustee for her, in order to give her a separate use, must contain words indicating such intention, such words are unnecessary in a husband’s conveyance or covenant.</p> <p>8. Section 2, article 2, of chapter 47 of the Revised Statutes, which provides that husband and wife may sell and convey her chattel real, or slave, in the same mode as the land of the wife may be sold and conveyed, and that “the proceeds shall be his, unless otherwise expressly provided in the conveyance or the obligation of the purchaser” does not apply, nor Is there any similar provision applying, to a wife’s real estate. But where the 'wife joins with the husband in selling her slaves in order to give him the proceeds, and for that consideration he gave her his note, such a provision is not necessary in order to give her an equitable claim on the husband for the value of the slaves in accordance with his agreement.</p> <p>9 That the husband was dealt with and obtained credit upon the faith that the proceeds of land and slaves of the wife belonged to him, does not, so far as he and his representatives are concerned, constitute a defense against a recovery by her upon a note exeouted by him to her in consideration of her conveyance of the property for his benefit.</p> <p>10. Nor does the fact that part of the proceeds of the property was used by the husband in paying store accounts contracted by her, and in purchasing a carriage for her and by her direction, constitute a defense against such recovery.</p> <p>11. But, though a married woman is equitably entitled to have notes, which were executed by her husband to her in consideration of her conveyance of her land and slaves for his benefit, paid out of his estate, yet where her claim is a mere equity, and there is no legal demand to which she can be substituted, it cannot be enforced to the prejudice of her husband’s creditors in a settlement of his insolvent estate.</p> <p>12. Such a claim is not embraced by the statute which requires that in the settlement of the estates of insolvent decedents, all debts and liabilities shall be of equal dignity and be paid ratably. In such case it does not stand upon the footing of even a simple contract debt.</p>

<p>CASE 9 — PETITION ORDINARY</p> <p>cited Civil Code. secs. 164, 165.</p> <p>cited 15 B. Mon., 630; Civil Code, secs. 414, 369, 368, 165.</p>

<p>APPEAL FROM THE FAYETTE CIRCUIT COURT.</p> <p>1. In 1857 a married woman, being the owner of land, not her separate estate, joined her husband in. selling it, and made provision in the conveyance that the proceeds should be invested in other property for her separate use. A part of the proceeds were invested in slaves, which were conveyed to a trustee for her separate use. Held, That the slaves cannot be subjected to the payment of an account against her for goods sold to her upon tho faith and credit of her separate estate.</p> <p>2. A separate estate, whether created before or since the statute, (Mcv. Stat., chap* 47, art 4, sec. 17,) cannot be charged in equity for any debt contracted by a married woman. (18 B. Mon., 301; 3 Met., 244.)</p> <p>3. Where it was agreed by an antenuptial contract between husband and wife, that she might hold her estate for her separate use, the statute supra was held not to ap_ ply. {Stites vs. Briján, Ms. op-in., 1858.) So where the property is secured to the wife’s separate use by post-nuptial settlement. Argu.</p> <p>4 The statute supra prohibits the sale by a married woman of her separate estate, purchased with the proceeds of her inheritance, although the conveyance to her gave her power to dispose of it as if she were an unmarried woman. (17 B. Mon., 55.)</p>

<p>CASE 11 — PETITION EQUITY</p> <p>cited Civil Code,</p> <p>sec. 471; 14 B. Mon., 83; lb., 222; 1 Met., 430; Civil Code, sec. 123 and notes; 15 B. Mon., 443 ; 5 J. J. Mar., 665 ; 1 Litt., 100 ; 11 B. Mon., 31 ; Chitty on Contracts, 31; 4 Bibb, 266; 1 Litt., 294 ; 5 Mon., 525 ; 7 Mon., 643; 3 J. J. Mar., 687 ; 4 lb., 446 ; 1 Stat. Law, 668 ; Rev. Stat., 336 ; 6 Dana, 313 ; Wassen vs. Wilson, Mss. optn., January, 1859 ; l J. J. Mar., 330; 11 B. Mon., 94; 12 lb., 321; 2 Bibb, 292 ; 4 Bibb, 241.</p> <p>cited 13 B. Mon., 466 ; Goddard vs. Maddock, Mss. opin., Dec., 1854; Civil Code, sec. 118, sub-div., 3 ; 14 B. Mon., 85, 86 ; lb., 254, 255 ; 7 Mon., 643; 3 /. J. Mar., 687 ; 4 lb., 446, 152 ; 3 Dana, 181.</p>

<p>APPEAL FROM THE NELSON CIRCUIT COURT.</p> <p>1. Where two writings are executed at the same time, with reference to each othe and to the same subject matter, they constitute hut one agreement, and are to he construed as if written on the same piece of paper.</p> <p>2. Gifts catiBa mortis, are in general conditional, like legacies, hut it is absolutely essential to them that they he made by the donor in his last illness, or in contemplation or expectation of death.</p> <p>3. To make a valid gift, simply so called, or a gift inter vivos, it is essential that it should be irrevocable by the donor. (5 Litt., 12; 5 Mon., 170; 4 JB. Mon., 538.)</p> <p>4. At the time a note for money loaned was executed, payable three years after date, the interest thereon to be paid annually, the payee executed and delivered to the payor, a writing stipulating that, if the payee should not collect the note in her lifetime, her representatives were directed to surrender it to the payor, “as I intend it as a gift from me to him.” The payee retained the note in her possession during her life, and died within less than a year after the execution of the writings. Held, That this is not a valid executed gift which a court of equity should enforce.</p> <p>5. The writing supra, might, if established according to the requirements of the statute of wills, take effect as a testamentary disposition.</p>

<p>APPEAL PROM THE HANCOCK CIRCUIT COURT.</p> <p>1. Where a testator not only authorized his executor to sell land, but devised to him the land itself, giving to the devisee only the proceeds when sold, an action for the recovery of the land should be in the name of the executor.</p> <p>2. A conveyance by the owner of land pa.sses the legal title to all the land within the designated boundaries, though they may contain more than the quantity mentioned in the deed.</p> <p>8. In a judicial sale, and conveyance to the purchaser by commissioner, of a tract of land, described by metes and bounds as containing 174 acres, made in a proceeding to satisfy the debts of the owner, where the tract turns out to contain 214 acres, the commissioner’s deed is not void as to the surplus, bub passes the legal title to the whole tract.</p> <p>4. In such case, where the vendee of the purchaser derived no benefit from the mistake, but, without notice of it, purchased and paid for all the land, including the surplus, he will be protected. (2 Bibb, 317; 1 A, K. Mar., 72.)</p>

<p>CASE 14 — PETITION ORDINARY</p> <p>cited Civil Cods, sec. 292; 17 B. Mon., 149.</p>

<p>APPEAL FROM THE DAVIESS CIRCUIT COURT.</p> <p>1. Whether covenants are to be treated as dependent or independent, is a question «of construction, which must be determined by the intention of the parties to be collected from the whole instrument</p> <p>2. Where a contract to convey land, and the contract to pay therefor, are mutual executory agreements, not dependent upon each other, the non-performance of the one eannot be pleaded in bar to an action brought for the breach oí the other. (1 Bibb, 454.)</p> <p>3. In a sale of a tract of land the bond, executed to the purchaser, recited that a certain sum wa3 to be paid on the 1st of March next after the date of the writing,</p> <p>and the residue in two annual instalments, for which the purchaser executed his notes, absolute in their terms. The bond stipulated that possession was to he given on a named day, and a deed to be made with general warranty “when the first payment is made.” Suit was brought upon the note given for the last instalment of the purchase money, the first payment having been made, the vendor having failed to make the deed. Held, That the contract to convoy and the contract to pay are mutual executory agreements, not dependent upon each other. The failure to convey cannot avail as a dejense to defeat the action.</p> <p>4. A defendant is not required to denominate his answer a counter-olaim when the facts as presented constitute a cause of action against the plaintiff, arising out of the transaction set forth in the petition, &c., “with an appropriate prayer for relief.” But it must contain all the requisites of a petition founded on the same cause of action.</p> <p>Sale of a farm “containing 160 acres, more or less,” particularly described án the bond for a conveyance, for the consideration of $6,400, “being at the rate of forty dollars per acre,” (as the bond recites,) held to bo a sale by the acre, and not in gross, and the purchaser liable to pay for a surplus of eleven and a half acres contained in the tract — he cannot surrender the surplus land to his vendor.</p> <p>6. It has been held that in the sale of a tract of about 135 acres, a deficit of two aores was large enough, considering the price of the land, ($30 per acre,) to entitle the purchaser to relief. {Heed vs. Quisenberry, Mss. ojsin., winter term, 1849.) Argu.</p> <p>7. A defendant, sued for compensation for surplus in a tract of land purchased of the plaintiff by the acre, states in his answer that he “has not enough knowledge or information to constitute a belief whether there is 1114 acres of surplus land, above the 160 acres, and denies that he is indebted** on account of said surplus, &c. Held equivalant to a denial of “any knowledge or information thereof sufficient to form a belief.” {Civil Code, sec. 125.)</p>

<p>APPEAL PROM THE MORGAN CIRCUIT COURT.</p> <p>1. The second and fourth sections of chapter 42 of the Revised Statutes, (title (3-amxng,) secure to the loser and his creditor the right to sue for money or property lost at gaming, for five years, and the exclusive right to do so for six ¿[months, after which any other person may sue for its recovery within the five years; the one first suing to have the preference.</p> <p>2. If the loser or his creditor sues, the recovery will only he the amount lost, and he for the sole benefit of the party suing. If another sues, the recovery will be treble the amount lost and won, one-half to the use of the plaintiff, the other to the commonwealth.</p> <p>3. Although more than six months may have elapsed, the loser has the right to adjust the loss by privato arrangement with the winner, if no other person has commenced suit. If the transaction be made in good faith by both parties, and free from any device to evade the statute, both the winner and loser should be protected.</p> <p>4. The 2d sec. of art. 22, chap. 28, Revised Statutes, (1 Stanton*, 406,) does not apply to the case supra,</p>

<p>AFPEA1 FROM THE MUHLENBURG CIRCUIT COURT.</p> <p>1. The filing of an affidavit by the defendant controverting the ground upon which an attachment issued, and praying for a discharge thereof, is an appearance to the action. The attachment authorized by section 221 of the Civil CodeUsi provisional remedy in a personal action. It is not distinct and cannot be separated from the action. They constitute but one proceeding.</p> <p>2. In section 289 of the Civil Code, -which declares that the affidavit of the plaintiff upon which the attachment is issued, and the affidavit of the defendant controverting that of the plaintiff, shall be regarded as the pleadings in the attachment, the words, “and have no other effect,” were introduced merely for fcho purpose of preventing the affidavits from being regarded as evidence.</p> <p>3. Whore no motion was made in the court below to correct a clerical misprision, it cannot be complained of in the court of appeals.</p>

<p>CASS 18 — PETITION ORDINARY</p> <p>cited New American^ Cyclopedia, title “Bushel;” Tomlin'’s Lav) Dictionary, .title “fSushel, or Measure, or Weight;” 2 Stat. Law, 1535; 1 Met. K., 5(1*2; 5 Dana, 503; Chitty’s Pleading, 219.</p> <p>cited sec. 1 act of 1798; 2 Stat Law, Ky., page 1535.</p>

<p>APPEAL PROM THE MASON CIRCUIT COURT.</p> <p>1. Sections 111 to 114, inclusive, of the Civil Code, which relate to the joinder of actions, refer to causes of action existing at the time of the commencement of the Buit, and not to such as arise subsequently.</p> <p>2. Sections 159 to 162, inclusive, of the Civil Code, relating to amendments, authorize such as relate to the case actually in court, and not such as constitute an entirely new and distinct case. The facts alleged must bo “material to the case ” which serve to explain or perfect the cause of action originally stated, and not such subsequently occurring facts as form a separate ground of action, having no connection with the original cause of action, and not necessary to enable the party to recover on it.</p> <p>3. Slanderous words, of similar import with those declared on, spoken after the commencement of the action, cannot be relied upon in such action either as a distinct ground of recovery, or to show that the words charged had been spoken, or to enhance the damages to which the plaintiff may be entitled on the original cause of action, but simply and merely to show the intent with which the words charged were spoken, and, when given in evidence, the court should give such cautionary directions to the jury as to restrict their effect upon the verdict within the legitimate purpose of their admission.</p> <p>4. In an action of slander, words spoken pending the action, and set up in an amended petition, were admitted in evidence without objection or any admonition to the jury as to the weight or effect they were to give to them; the court instructed the jury that the plaintiff had a right to recover, as well for slanderous words spoken aftor as before the action was brought, and that in determining the amount of damages they wore to consider all the facte and circumstances proven in the cause; the case was submitted to the jury and argued by counsel, after which the court said to the jury, in another instruction, that the plaintiff could not recover in this action for words uttered since the filing of the original petition, but that evidence thereof was admissible on the question of malice, and that they could*not regard the words as substantive slanders, for which they might give damages in the action. Held, That the error was not cured by this caution. It should have been full and explicit as to the purpose for which alone the ovidence was admissible, embracing specifically the idea that such evidence could not be considered by them to inorease the damages.</p> <p>5. The specific words in which the slander is conveyed must be set forth in the petition, and it is not sufficient to state merely the effect of the words uttered, or. that the defendant charged the piaintiff with the commission of a particular crime.</p> <p>6. The rule of evidence in actions of slander formerly was that the plaintiff must prove the precise words. That rule has been no further relaxed than to admit proof of the substance of the words. It is not enough to prove words of the same effect or import, or conveying the same idea. The words must be substantially the same words, and it is not sufficient that they contain substantially the same charge, but in different phraseologyj equivalent words of slander will not do.</p> <p>7. While the proof of speaking the words is for the jury, the correspondence between the Tjrords spoken and laid is for the court.</p>

<p>CASE 20 — PETITION EQUITY</p> <p>cited Rev. Slat., chap. 40,secs. 1 and 2.</p> <p>cited Rev. Stat., chap. 40,</p> <p>secs. 1 and 2; Story's Equity, chap. 7; 3 Johns. ch.R., 500.</p>

<p>CASE 21 — PETITION ORDINARY</p> <p>cited 4 Bibb, 454; 7 Blackford, 526; Bouvier, Inst., 2 vol., 56; 11 Shep., 73; Pike, 76; 20 Wendell, 82; 14 B. Mon., 185; Holbart, 31; Cro. and Jac., 287, 432, 685; 7 Cranch, 523; 14 Conn'. 490; 5 Tenn., 596, 606; 4 Dog., 444; 24 Wend., 35; 3 Sneed, Tenn., 89; Brown, 390; 5 Mason & Welly, 500; 7, Cranch, 69; 12 East, 10, 227; Adol. & Ellis, 309; Kent, 163; 12 Wheat., 515; 1 Ld. Raymond, 357; 1 Barn. & Adol., 603; 2 Howard, 426; 10 Moore, 395; Parsons on Contracts, 365. and notes', 15 N. Hamp., 127; 9 East, 248; 1 Barr, 394; 1 Smith's Leading Cases, 6th Amer. Ed., 373; 1 Strange, 592;' 2 Harris, 469; 4 Barr, 305; 12 Mass., 154; 7 N. Hamp., 549; 1 Strange, 88; 9 Barb., 202; 5 Pick., 380; 14 Corn., 490; 5 Conn., 596; 7 lb.. 532; 2 Sacket, 457; 5 Tenn., 606; 1 Chitty's Plead., 320; 24 Wénd., 35.</p> <p>cited 10 Mass., 230; 2 Amer. Lead. Cases, 33; 2 Chitty's Plead., 316, 318; 2 Salk., 457; Hol-bart, 51; Cro. Jac., 432; 2 Hen. Black., 613; 2 Smith's L. G., 21; 1 Met. Ky.,- 410; 5 B. Mon., 403.</p> <p>cited Parsons on Contracts, 367, 69, and notes', 1 Ld. Raymond, 357; 1 Barnwell & Adol., 603; 10 Moore, 395; 3 Bing, 107; 2 Howard, 426; 12 Wharton, 515; 12 East, 227; Broom, page 311, 313,321, 388,390 and 91, and 99; 5th Mason & Welly, 501; Kent's Com., 163-4 and 5; 2 Campbell, 413; 7 Cranch, 09; 10Lh Adol. & EUis, 309; 5Ih Pick., 380; 1 Strange, 88; 12 Mass., 154; 7 N. Hamp., 549; 9 Barb.. 202; 3 Watts, 213; 5 Raiole, 69; 4 Barr, 305; 5 Harris, 469; Hobart, 31; Cro. Jac., 432; Smith vs. Gaffe, 2 Ld. Raymond', Cro. Jac., 287; Cro. Jac., 685; Cro. Jac., 34; 14 Conn., Rep., 479; 16 Yiner's Abridgement Title Notice, page 5, pi 10; 5 Tenn. Rep., 606; Lawson's PI., 221; 1 Chitty, PL, 320; 2 Wm. Saunders, 62, n.; Comyn's Dig. 575, title pleading, 2 Salkcld, 457; 5 Conn., Rep., 596; 4th Day. 444; 7 Conn. Rep,, 523; 24JWended, 35; 2 A. K. Marshall, 255, 733; 1 Barr, 394; 1 Strange, 692; 1 Denio, 404; 15 N. Hamp., 127; 10¿A Exchequer, 323; 9th East, 248; 1 Smith's Leading Cases, bth Arner. Ed., 373; 25 Ala. Rep., 704; 15 Conn. Rep., 457; 5 Peters, 624; Adams vs. Johnson, \2th Peters Douglas vs. Reynolds', Lee vs. Dick; Bright vs. McKnight, 1 Sneed, 158; 2 Swan Rep., 117; 3 Sneed, 89; 29 Ala., 288; 34 N. Hamp , 534; Woostock Bank vs. Downer, 1 Williams' Rep., Vermont, 2d American Leading Cases.</p>

<p>APPEAL PROM THE WARREN CIRCUIT COURT.</p> <p>1. The holder's discharging, or giving time to, any of the parties on a hill of exchange, will be a discharge of every other party who, upon paying the bill, would be entitled to sue the party to whom such discharge or time has been given. Thus the drawer and indorsers will be discharged by a release of the acceptor, or by a valid agreement between the holdor and acceptor, in which the drawer and indorsers do not concur, whereby timo is given the acceptor for payment of the bill after it is due.</p> <p>2. But a discharge or release by the bolder to any party upon the bill, will not discharge the antecedent parties who are liable to him for the debt, but will only discharge the subsequent parties. Thus, (the parties being severally liable, accord» ing to their respective positions, on the bill,) a release by the holder to the last two indorsers will not discharge tho liability of either the drawer, acceptor, or prior indorser.</p> <p>3. In such case the antecedent parties are not entitled to have the sums severally paid by the two indorsers to the holder of the bill, in consideration of their release, credited as payments upon the bill. The amount paid neither increased nor diminished the liability of the prior parties.</p>

<p>APPEAL PROM THE GRANT CIRCUIT COURT.</p> <p>1. After a testator's Dame had been subscribed to the writing, he acknowledged it to be his will in the presence of two witnesses, who subscribed as such. The testator then made his mark to it between.his Christian and surname. Held to be a sufficient publication of the instrument as a will — the placing of the mark to it was unnecessary.</p> <p>2. It is not material whether the names of the attesting witnesses, or that of the testator, be first subscribed, if the witnesses were present when the testator either wrote his name or acknowledged it as his signature, and^ being called on for that purpose, actually witnessed or attested that fact. (I B. Mon., 114.)</p> <p>3. The provision in regard to the attestation of wills in the statute of 1797 concerning wills, is the same in import and substance as the 5t7i section of chapter 106 of the Revised Statutes, (2 vol. 458.)</p> <p>4. The execution of an instrument as a will by the testator, with the requisite solemnities, is presumptive evidence that he knew its contents and that it conforms to his intentions; and it is incumbent on those who seek to avoid it on the ground that it makes a disposition of his estate of which he at the time was not fully apprised, or had no knowledge, to establish the fact aliunde. (3 A. K. Mar., 144; 1 Jarman on Wills.)</p> <p>5. A testator, who was illiterate and could not read, furnished the draftsman with a previous will which he had made, and directed him to write his will like that, omitting the lands, as they had been deeded. The draftsman did so; and, as he would write a clause or paragraph, he would read it to the testator, who would approve what was written. In that way the whole instrument was read to and approved by him. Held sufficient to show that the testator knew the contents of the instrument.</p> <p>"6. "Upon an appeal from an order admitting a will to record .or rejecting it, to the circuit court and thence to the court of appeals, the latter is made the trier of the facts certified from the circuit court, without reference to and wholly independent of the finding of the jury; and, by applying the law to the facts, of which the court is made the sole trier, it determines whether the testamentary paper should be admitted to probate or rejected. The circuit court ean only enter the mandate, with directions to the county court to make such orders as may be proper and necessary to carry out the judgmont of this court. {Rev. Stat., ckwp. 106, sec. 28; 18 B. Mon., 61.)</p> <p>7. Though subscribing witness to a will prove that, at the time the instrument was published, the testator was not of sound mind, his capacity may be established by other sufficient evidence. (5 Mon., 199; 2 B. Mon., 79.)</p> <p>8. See the opinion for a particular statement of the evidence as to the mental capacity of the testator to make a will; from which, (to some extent conflicting,) it is held that, although the mental capacity of the testator was to some extent impaired by old age and physical infirmities, the facts decidedly preponderate in favor of his testamentary capacity at the time of the publication of the instrument, which is established as his will — there being no sufficient evidence of the existence or exercise of an unlawful influence over the testator to procure its execution. And refer to 2 J. J. Mar., 331; Ib.} 310; 2 B. Mon:, 74; lb., 79; 1 Jarman on Wills, 53, 54.</p> <p>9. Lawful influence, such as arises from legitimate or social relations, must be allowed to produce its natural results even upon last wills and testaments; and there can be no presumption of its unlawful exercise merely from the fact that it may be known to have existed and may to some extent have operated on the testator's mind.</p> <p>10. A will is not to be condemned on account of inequalities in testamentary dispositions produced by such influence. It is only when it is exerted over the very act of devising — so as to prevent the will from being truly the act of the testator — that the law condemns it as a vicious element of the testamentary act.</p>

<p>APPEAL PROM THE KENTON CIRCUIT COURT.</p> <p>1. Courts of equity would always entertain jurisdiction in cases of set off, where the demands were connected, or where the ono sought to be set off formed the consideration of the other.</p> <p>2. The only exception to the rule, supra, was, that if the claim proposed to be set off was for unliquidated damages, the chancellor would not, on account of the mere connection between tho demands, first liquidate the damages, and then make the set off, where 'there was a plain and adequate remedy at law. But—</p> <p>3. Where the existence of any extraneous fact is shown, calculated to defeat or impair the efficacy of the legal renedy, such as the insolvency or non-residence of the plaintiff or his assignor, the jurisdiction of the chancellor, even in cases of unliqui-dated demands, was unquestionable.</p> <p>4. The law on the subject, supra, has not been changed by the Civil Code. (2 Met. Ky. Hep., 143.)</p> <p>5. A demand for unliquidated damages, for breach of warranty of the quality of a commodity for which the note sued on was given, may be relied upon as an equitable set off against the note, when the vendor is insolvent or non-resident, even where the note is in the hands of, and the action upon it brought by, a remote assignee of the vendor.</p> <p>6. Quere. Does the defense, supra, amount to a valid counter claim in an action by tho assignee of the note?</p> <p>7. Objection for want of necessary party to an answer containing a set off must be taken in one of the modes prescribed by the Civil Code (sec. 123 — ) otherwise^ it is waived.</p> <p>8. Every material allegation of new matter in an answer, relating to the set off therein relied on, where there is no reply, must be taken as true.</p>

<p>APPEAL FROM THE LOUISVILLE CHANCERY COURT.</p> <p>1. Prior to the adoption of the Revised Statutes a sale by a testator, after making his will, of either land or personalty, thereby devised, defeated the will pro tanto. Since the statute the rule is otherwise as to devises and bequests to an heir of the testator, in which case such sale is not now an ademption of the legacy or devise unless the testator so intended — and the burden of showing such intention rests on these claiming against the will. (9 B. Mon., 367$ 8 Met. Ky. Rep., 473$ 3 Revised .Statutes, chapter 46, article 5, sections 1 and 2.)</p> <p>2. The statute supra applies to land as well as to personal property. (Authorities, supra; Revised Statutes, chapter 21, section 25.) And a sale of land for money is a conversion of it within the statute.</p> <p>3. The Revised Statutes abolish the distinction between the words ‘‘bequeath and devise/' “legatee and devisee/' “bequest and legacy," (Chapter 21, section 25.)</p> <p>4. A provision in a will that if the testator should sell real estate devised to one of his children, and should not by will, deed or gift, substitute other real estate in. lieu thereof, she was to have its value assigned her out of the testator's real estate not specifically devised — and the absence of such a provision concerning other devi-sees — held not sufficient to show that the testator intended to adeem the devises to the latter if he should sell the lands devised to them; a conclusion strengthened by other clauses of the will.</p> <p>5. That a testator sold land devised to one of his heirs to pay his debts, which, if not paid by him, would have fallen upon the residuary which he directed to be equally divided between bis heirs after the payment of debts — not sufficient to show an intention to adeem the devise.</p>

<p>AFPJGALS FROM THE FAYETTE CIRCUIT COURT.</p> <p>1. There is no distinction, as to the notice necessary to bind a purchaser, between cases which do not come within the operation of the registry acts and those which do.</p> <p>2. Implied or presumptive notice may be equally effectual with direct and positive notice; but tuen it must not be that notice which is barely sufficient to put a party upon inquiry. Suspicion of notice is not sufficient. The inference of a fraudulent intent affecting the conscience must bo founded on clear and strong circumstances in tho absence of actual notice. The inference must be necessary and unquestionable.</p> <p>3. The general doctrine is, that whatover puts a party upon inquiry amounts in judgment ot law to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors, and would lead to the knowledge of the requisite fact by the exercise of ordinary dilligence and understanding.</p> <p>4. Where the parly has had actual notice that the property in dispute was, in fact, charged, incumbered, or in some way affected, he is bound with constructive notice of facts and instruments, to a knowledge of* which he would have been led by an inquiry alter tho charge, incumbrance or other circumstance affecting tho property of which he had actual notice. The proposition of law upon which this class of cases proceeds is, not that he had notice of a fact or instrument, which, in truth, related to the subject in dispute, without his knowing that such was the case, but that he 4ihad actual notice that it did so relate.</p> <p>5. Constructive nutico is established whore there is satisfactory evidenco that the party had designedly abstained from inquiry for the very purpose of.avoiding notice. Not that he had incautiously neglected to make inquiries, but that he had designedly abstained from such inquires for the purpose of avoiding knowledge.</p> <p>6. If ihore is not actual notice that the proporty is in some way affected, and no fraudulent turning away from a knowledge of tacts which the rea gestae would suggest to a prudent mind — if mere want of caution, as distinguished from fraudulent and wilfull blindness, is all that can be imputed to the purchaser — there the doctrino of constructive notice will not apply; but the purchaser will in equity be considered a bona Jide purchaser without notice.</p> <p>7. A purchaser is iogally chargeable with notice of an unrecorded lien, though he have no knowledge of its existence, if he have notice, actual or constructive, of the contents of the instrument giving the lien, though, under a mistake of tho law, he may have supposed there was no lien.</p> <p>8. Qaere. Does tho term “income bond” import any thing more than a bond payable out of income? And does a bond of a railroad company, payable out of its income, and without other words importing a pledge of its income or property give a lien thereon?</p> <p>9. An agent is only chargeable with constructive notice of those facts which he would have been led to a knowledge of by performing his duty according to the regular course of business.</p> <p>10. The general rule is, that a purchaser without noticois not affected by notice to his vendor. This rule applies in favor of a purchaser of a bond secured by mortgage, (without a transfer of the mortgage,) from one who had notice of a prior in-cumbrance.</p> <p>11 It is well settled in equity, with reference to debts secured by mortgage, that the debt is the principal thing and the mortgage a mere incident thereto; that a transfer of the debt passes the mortgager’s interest in the mortgage property; and that his transfer of the mortgage, without the debt, passes nothing. (5 JSf. Samp. , 420; 2 Coiven, 195; 19 Joint., 325.)</p> <p>32. Notice to an agent of the purchaser is constructive notice to the principal, and notice to the trustee is notice to the beneficiary. The notice must, however, be in the course of the transaction in which ho is acting on behalf of the principal — otherwise it will have no legal or necessary connection with the latter. So, notice to a trustee, made long before the execution or contemplation of a mortgage to him, of a prior incumbrance, will not affect the cestui que trust. (2 Lead. Eq. Gases, Am. Ed.? 106,116-17.)</p> <p>13. 3?aets before the court at the time of the original trial furnish no ground for a new trial, even if the decision upon thorn has” been erroneous.</p> <p>14. See the opinion for a statement of facts held insufficient to show that a subsequent holder under a recorded mortgage had either actual or implied notice of a prior incumbrance upon the property</p>

<p>CASE 27 — PETITION EQUITY</p> <p>cited Rev. 8 tat., chap. 86; Civil Code, sec. 539; 16 B. Mon., 296; 18 Jó., 391; 1 Met., 282.</p> <p>cited, 12 B. Mon., 602; 4 Dana, 429; 7 B. Mon.,Q2) 8 B. Mon., 104; 12 lb., 472; Smith, &c. vs. Hawser, &e., Mss. opin. April, 1860.</p>

<p>CASE 28 — PETITION EQUITY</p> <p>cited Civil Code, secs. 30, 37; Rev. Stat., chap. 24, sec. 1; A Bibb, 17; 1 Mar., 105, 587; 6 Dana, 39; Redfield on Railways, 427, 429,430, 422, note 14, 591, note 23; 2 Bibb, 14; 2 Kent's Com., 298; 5 B. Mon., 1; 12 lb., 79; Pierce on American Railroad Law, 512, 515, note 1; 32 N. H., 504; 23 Howard, 118.</p> <p>cited Sess. Acts, 1853-4,page 552; Redfield on Railways, 574 to 588, and note 20; lb., 4 and 5; lb., 692, 697; Civil Code, sec. 33.</p> <p>cited 2 Kents Com., sec. 33; 1 ü. S. Digest, 589; 5 B. Mon., 1; 3 Barb., Ch. Rep., 119; 3 Wendell, 13;2 Ala., (Stewart,) 401; 6 Gill & Johnson, 205; 11 Vermont, 385; 12 N. Hamp., 431; 4 Arkansas, 304; 4 Humphreys, 403; 9 Watts & Sergeant, 27; 5 lb., 223; 2 Wheaton, 373; 23 Howard, 400.</p>

<p>APPEALS PROM THE DAVIESS CIRCUIT COURT.</p> <p>1. The right of an .attaching creditor, (under the act of 1796 to prevent fraudulent sales and conveyances,) to set aside a sale which is merely fraudulent and colora-ble, and to subject to the payment of his debt the property and effects of ihe fraudulent vendor, is not taken away or impaired by the act of 1856 to prevent preferences among creditors in contemplation of insolvency. The former act was not repealed by the latter; they embrace distinct classes of cases, and provide appropriate remedies for each.</p> <p>2. The act of 1856, supra, does not prohibit, or afford a remedy for, sales or assignments that are merely fraudulent, although it prohibits the preference which the act of 1796 allowed.</p> <p>3. To maintain the right conferred upon creditors by the act of 1856, supra, it is indispensable to show: first, that the sale, mortgage or assignment was made “in contemplation of insolvency/’ and, second, that it was made by the debtor “with the design to préferonc or more creditors, to the oxclusion in whole or in part of others.” The absence of either of these essentials is fatal to the claim of the party seeking the benefit of the act, however fraudulent the transaction may be.</p>

<p>CASE 30 — PETITION EQUITY</p> <p>cited 4 Litlell, 348.</p>

<p>APPEAL PROM THE HENRY CIRCUIT COURT.</p> <p>1. A recognizance, entered into in October, 1860, was filed in the cleric's office is December, 1860. The case was before the grand jury at the term to which the defendant was recognized, who reported to the court that they had failed to indict; but the court failed to enter of record the discharge oí the defendant and the exoneration of the bail. ( Crim* Code, sec. 116.) In September, 1862, (no indictment in tb© meantime having been found, nor any other step taken towards the prosecution of the charge,) proceedings were taken to forfeit the recognizance. Held, That.the circuit court properly dismissed the proceeding, the effect of which was to exonerate all the parties from liability on the recognizance — an order which, under the section «itpra, should have been made upon the failure of the grand jury to indict.</p>

<p>CASE 2 — FORFEITED RECOGNIZANCE</p> <p>cited Crim. Code, sees. 91, 92; Rev. Slat., chap. 63, art. 3, secs. 9 and 10.</p> <p>cited Crim. Code, sec. 343; 14 B. Mon., 392.</p>

<p>APPEAL PROM THE MARSHALL CIRCUIT COURT.</p> <p>1. The summoning of bystanders to serve as grand jurors, when properly ordered, is a duty in the performance of which the accused in a criminal case is entitled to the services of the sheriff, or coroner where there is no .sheriff. If summoned by one specially appointed by the court, the indictment may be quashed. It is a substantial error. (Crim. Code, seca. 159, 98; Rev. Stat., chap. 55; act of March 17, 1862, vess. acts, 95.)</p> <p>2. Section 194 of the Criminal Code, which authorizes the court, for sufficient cause, to designate some other officer or petson to summon jurors, relates only to petit jurors.</p> <p>3. "Where the grand jury is composed of jurors selected by commissioners, as directed by the Revised Statutes, the court say they incline to the opinion that the summoning of them by a person other than the sheriff or coroner would not bo lia> substantial error.”</p>

<p>CASS 4 — FORFEITED RECOGNIZANCE</p> <p>cited 3 B. Mon., 349;. 353; 1 Met., 383.</p>

<p>APPEAL PROM THE MERCER CIRCUIT COURT.</p> <p>1. Moral insanity, as a ground of defense in criminal cases, is so peculiarly -liable to abuse that the utmost care and circumspection are required on the part of the court in presenting to the jury the le^al principles relating to it. 4</p> <p>2. To establish moral insanity as a justification in any particular case, it is necessary either to show, by clear proofs, its contemporaneous existence, evinced by pres-^ ent circumstances, or the existence of an habitual tendency developed in previous cases* becoming in itself a second nature. But it is not necessary that it should have manifested itself “in former acts of similar character or like nature of the offense charged,” to be available as a legal excuse for crime.</p> <p>3. Before moral insanity can be admitted to excuse the commission of crime, it must be shown to exist in such violence as to render it impossible for the party to do otherwise than yield to its. promptings. Whether this impossibility of resistance arises from a subjugation of the intellect by the morbid impulse or propensity^*or “from an overwhelming and destruction of the faculties of the mind to the extent of rendering the party incapable of governing his actions,” is a point of not much practical importance — though the former mode of expression is preferred as being less calculated to confuse or mislead the jury.</p> <p>4. See the opinion for a discussion of the principles touching the question of moral insanity and its admission as a defense in criminal cases, with a reference to-author-: ities,</p>

<p>CASE 6 — PETITION EQUITY</p> <p>cited 9 B. Mon., 569; 12 lb., 549; 15 lb., 583; 16 lb., 368.</p> <p>cited 7 B. Mon., 403; 8 lb., 100; 15 lb., 338; 9 lb., 572; 2 Marsh., 476; 13 B. Mon., 329; 1 Bibb, 424; 4 Dana, 248; 12 B. Mon., 238.</p>

<p>CASE</p> <p>cited, Constitution of Ky., art, 6, sec. 4; Rev. Slat. chap. 91, art. 1 sec. 6.</p>

<p>APPEAL PROM THE CHRISTIAN CIRCUIT COURT.</p> <p>1. A decree for the sale of land, held in trust for the separate use of'a married-' woman, is rendered void by a failuro to have a report of commissioners stating tho value of her estate, the annual profits thereof, and that her interest requires the sale to be made.</p>

<p>CASE 9 — PETITION ORDINARY</p> <p>cited 1 Rev. Stat.,page 500, sec. 16; 5 Mon., 101; 18 B. Mon., 209; 2 Rev. Slat., page 10, sec. 3; lb., page 133, sec. 6.</p> <p>cited 2 Rev. Stat., 133.</p> <p>cited 18 B. Mon., 209; 8 Dana, 186; 8 B. Mon., 508; Act o/" 1851, 2 Rev. Slat., 133; 2 Slat. Law, 1147; Civil Code, secs. 126, 128; 5 Dana, 411; lb., 507; 3 Dana, 392; 7 Dana, 264-5; 6 J. J. Mar., 228; 3 J. J. Mar., 633; 3 Mon., 356; 5 Mon., 20; 4 J. J. Mar., 50; 7 lb., 189; 9 Dana, 428.</p>

<p>CASE 10 — PETITION ORDINARY</p> <p>cited, 1 Parsons on Contracts, 440,441; lb., 139; 7 Dana, 60; Chilly on, Contracts, 2 Am. Ed., Ill,112.</p>

<p>APPEAL PROM THE FLEMING CIRCUIT COURT.</p> <p>!• A surety, who pays a debt, is entitled to stand in the place of the oreditoras to all liens and equities to which he has a right to look .as a security for the payment of his debt. This general equitable principle is well settled.</p> <p>2. In such case it must bo shown that, at the time the surety paid the debt, the creditor had a valid and subsisting lien or equity such as a court of equity would have inforced at his instance for the satisfaction of his debt.</p> <p>3. A creditor is allowed to be substituted to any securities provided by 1he principal debtor for the indemnity of his sureties. But, as the equity is derived through the sureties, and as a consequence of their liability for the debt, whatever act or omission of the creditor may operate to discharge or release them from liability has the effect to destroy his equity. (10 Leigh, 206; 12 /6., 387.)</p> <p>4. Where a judgment against the principal debtor and his sureties is replevied by him with other sureties — the defendants in the judgments, who are only sureties for the debt, refusing to join in the bond — the latter are released from liability. The execution of the replevin bond in such cases merges the judgment, and releases the original sureties. (2 B. Mon., 303; 1 Met, 252.)</p> <p>5. Where, in such case, the original sureties, thus released from liability, were indemnified by mortgage against loss, the sureties in the replevin bond who pay the debt, have no equity, as against other lien holders, under such mortgage.</p>

<p>APPEAL FROM THE STIIPSON CIRCUIT COURT.</p> <p>1. In a proceeding by motion against a sheriff and his sureties for the recovery of money collected by him on execution, if the motion is not made in court, nor entered on the motion docket, on tho day specified in the notice, tho motion shall be considered as abandoned. {Civil Code, sec. 482.) And a judgment subsequently rendered i-i a nullity.</p> <p>2. Notice of a motion against a sheriff was given for the four h day of the next term. On tho third day of tho term this order was made: l( Notice filed und ordered to lie over.” No further steps were takon at that term. At a subseqnent term the plaintiff “renewe l his motion for judgment which Í3 ordered to lie ovorj” and, at tho same term, judgment was rendered by default. Held, That there was no motion pending, and that the judgment was void.</p>

CASE 13 — PETITION ORDINARY This'action was brought by appellees to recover 200 acres of land in possession of the appellant. Judgment having been rendered for the plaintiff the defendant prosecutes this appeal. cited 0 Dana, 323; 3 B. Mon., 117; 5 B. Mon., 15Í-60; 2 J. J. Mur., 408; 4 Dana, 30; 10 B. Mon., 124-5; 4 Bibb, 330; 7 B. Mon., 81; 1 lb., 308; 2 Mur., 418; 2 Lilt., 302; 4 Dana, 322, 501; 0 B. Mon., 438; 9 /¿.,240;4 Mon., 51; 2 Slat.

<p>CASE 14 —</p> <p>cited Rev. Slat., chap. 26}, secs. 5, 6; 1 Greenleaf’s Evidence, chap. 9, secs. 86-7-8; 3- Met.,, 348.</p> <p>cited Rev. Slat., chap. 26,, art. 2, sec. 6; 18 B. Mon., 621; Civil Code, secs. 15-, 16.</p>

<p>CASE 15 — DISTRESS WARRANT</p> <p>cited Civil Code, secs. 120,121,122; Rev. Slat., chap. 56, art. 2, sec. 9; 2 Black. Com., side page 41.</p> <p>cited 2 Revised Statutes, page 92.</p>

<p>APPEAL FROM THE BOONE CIRCUIT COURT.</p> <p>1. The provision of section 49 of the Civil Code, that where the action concerns the separate property of the wife, or where the action is between herself and her husband, she may sue alone, relates merely to the form of procedure, and confers no new right of action.</p> <p>2. The only effect of the provision supra is to dispense with the necessity for the intervention of a next friend, where the action concerns the separate property of the wife or where she sues in equity to enforce some equitable right against the husband*</p> <p>3. The wife oannot sue the husband to recover possession of slaves devised to her as her separate property, free from the control of her husband, which he refuses to deliver to her; no other ground of relief, legal or equitable, being alleged.</p> <p>4. In such case the husband is regarded as the trustee of the wife, holding the le- • gal title for her sole use. A court of equity would hold him accountable for any violation of his trust. But his mere possession of the slaves, nothing else appearing, is not sufficient to show such abuse.</p> <p>5. Although there are cases in which a court of equity will lend its aid in the adjustment of conflicting claims arising between husband and wife with respect to their property, yetis the policy of the law rather to restrict than to enlarge this^ class of cases. The necessity must be made clearly apparent.</p>

CASE 17 — PETITION ORDINARY In this'action, brought by Booker against White, to recover damages for the refusal of the latter to receive and pay for the 25Ü hogs mentioned in the contract, when tendered, the defense set up was, in substance, that said hogs were all to be fed solely by the plaintiff, and none other, and that the larger portion of the hogs tendered by plaintiff were not of his feeding, but were purchased, already fatted, of other persons; and that plaintiff…

<p>CASE 18 — IN EQUITY</p> <p>cited 2 Johnson’s Gh’y. Rep., 77; 3 J:-J. Mar., 244-5; 3 Dessau’s Ch’y. Rep., 417; .Sugden on Powers, 114 to 121; 1 Story's Eq.,secs. 170 to 175; 2 Dana, 82-3; Pr. Dec., 224; 4 Mow.,73; 2 J. J. Mar., 223.</p> <p>cited 2 Johnson's Ch'y. Rep., 21; 2 Dana,'IQ) 2 J. J.'Mar., 223; 2 Dana, 99; Rev. Stat,, chap. 25; 1 Met., 396; Hardin, 421; 4 Mon., 73. '</p>

<p>APPEAL FROM THE MAKIOH CJECUIT COURT.</p> <p>1. Att entry by the clerk of the circuit court, in the execution book, that the execution was delivered to the sheriff, cannot be impeached by parol testimony in a motion against the sheriff and his sureties for not returning the execution within thirty days of the return day. Such entry is conclusive in ail collateral proceedings. {Stv. Stat., art. 1, arc. 4; 3 Starkie’a Ev., 1042; 13 Serg. & Rawlc, 254; 2 Wattt Ss Strg., 387; 12 Orattan, 277; 4 Dana, 600; 3 Bill, 356.)</p> <p>2. See opinion for a discussion of the principle, supra, and examination of the authorities. ,</p>

<p>CASE 20 — PETITION</p> <p>cited Parson's Mercantile Law, 111, 112, 115; 2 Greenleaf, sec. 175; 1 Wharton's Die., 702; 2 Swanston, 400; Civil Code, sec. 35; 3 Met., 245; 2 lb., 517, 612; 14 B. Mon., 320; Greenleaf Ev., sec. 356 et seq.j lb., 391; 1 B. Mon., 322; 1 Story's Eq., secs. 323-4-5; 4 John. G. R., 130; 3 Maddack's Rep., 191; 1 Met., 204; Bayly on Bills, 26; Greenleaf,, secs. 389, 390, 347; 18 B. Mon., 128; 1 B. Mon., 322.</p> <p>cited Civil Code, sec. 32; 18 B. Mon., 759; 14 lb., 321; 18 lb., 128; 4 Dana, 106; Chittyon Bills, 295-6-7, 407; 3 Kent's Corn., 72; 3 Johnson, 89.</p> <p>cited Civil Code, sec. 670, sub-div. 6; 14 B. Mon., 321; 18 lb., 128; Civil Code, sec. 161; Coil vs. Howard, Mss. opin., Dec., 1853.</p>

<p>APPEAL PROM THE BOURBON CIRCUIT COURT.</p> <p>1. In an action dpon a covenant to furnish a slave with winter and summer clothing, an averment that the defendant had “failed to clothe said slave properly," is not a sufficient assignment of the breach. In such oase, judgment by default for the plaintiff will be reversed; but the error, if there had been an issue, would be cured by a verdict and judgment for the plaintiff.</p> <p>2. In an action for damages for breach Of covenant, the plaintiff must prove their value. Thus, in an action for failing to furnish a slave the clothing stipulated, an averment that it was reasonably worth a certain sum, must be supported by proof. It is error to render judgment by default without such proof.</p> <p>3. Where, upon the facts stated in the petition, there is an implied assumpsit to pay the amount claimed by the plaintiff, the allegation of value need not be proved upon failure of the defendant to counteract it. (15 B. Mon.t 628; 18 lb., 60.) Otherwise, where thero is no assumpsit, express or implied, to pay the sum claimed. (14 B. Mon., 393; 18 lb., 216; 1 Met., 558; 3 Mei.,196.)</p> <p>4. See the opinion for a review of the authorities and discussion of the principles Upon which the foregoing rulings depend.</p> <p>5. The Civil Code requires only a statement of the facts constituting the cause of action. What the law implies need not be averred. (/Sections 118,144.)</p>

<p>CASE 22 — IN EQUITY</p> <p>cited Civil Code, secs. 221, 287, 729, 259.</p> <p>cited Samuel vs. Dal-lam., Mss. opin., Jan. 1857; 3 Dana, 579; 8 lb., 67; Civil Code, secs. 221,871, 225, 226, 728,729; Rev. Stat., chap. 97.</p> <p>cited Civil Code, secs. 257, 221, 161,259,728,729,730; 14 B. Man., 195; Bondurant vs. Apperson, ante, p. 30; Hanson vs. Bowyeruante,p. 108.</p>

<p>APPEAL FRO3f THE HARRISON CIRCUIT COURT.</p> <p>1. A testator, in 1848, devised to his wife all his estate, real, personal and mixed; in 1853 and 1854 he acquired real estate, and died in 1861. The will gave no direction about the payment of debts. The widow became administratrix, and soughfcto have the after acquired real estate, which descended to the heirs at law, appropriated to the payment of the testator's debts, and exonerate the personal estate and slaves, which were ample to pay them. Seld, That the real estate could not be thus subjected, in the absence of a clear intention, either express or implied, of the testator to exonerate the personal estate and slaves. (3 Rawle, Penn. Pep., 236; 6 Mass., 150.)</p> <p>2. The laws in existenoe at the time the Revised Statutes went into effect govern wills previously made. i</p> <p>3. The bequest of a particular thing or money, specified and distinguished from all others of the same hind, is a regular specific legacy.</p> <p>4. The debts of a testator are to be paid, first out of the perishable goods, not spooifioaHy bequeathed, next out of the slaves, and if these be insufficient, then out of the real estate, where the will makes no provision for their payment.</p>

<p>CASE 24 — PETITION ORDINARY</p> <p>cited Nichols vs. Webb, 8th Wheat; 2 Strange, 827; 17 John., 182.</p> <p>cited Act of jFeb. 4, 1858, Rev. StaL, 135; 1 Met., 520; 3 Met., 88.</p>

<p>APPEAL PROM THE BOURBON CIRCUIT COURT.</p> <p>A note given, “we or either of us, directors of Centreville and Jacksaville Turnpike Co., promise to pay,” &c., is the individual obligation of those wh signed. It is not the obligation of the corporation.</p>

<p>APPEAL PROM THE LOUISVILLE CHANCERY COURT.</p> <p>1. By the law of this State, a remote assignor of a note is not primarily liable t© the holder; and the immediate assignor is only liable for the consideration received, with six per cent interest, and the holder cannot make him liable without first prosecuting the payor with diligence. Otherwise by the law of Louisiana.</p> <p>2. An agreement to perform an act at a particular place is presumed to be mad© with reference to the law of that place; and an agreement to perform an act, without designating a place of performance, is presumed to be made with reference to the law of the place at which the agreement is made. These presumptions are conclusive. The same rule applies to both parties to the contract.</p> <p>3. The indorser of a note promises, upon certain conditions, which are not expressed in the contract of indorsement, but which are implied by law, that he will pay it; but not that he will pay it at the place named in the note for payment. His promise is general for the payment of the note, on the implied conditions; and such general promise, not specially to be performed elsewhere, is governed by the lex loei contractus, which must determine the conditions upon which he is to be held liable.</p> <p>4. In an action against the indorser of a note, payable in one State and indorsed In another, the laws of whioh differ, the liability of the indorser depends upon the law of the place of indorsement, and not upon that of the State where it is payable, nor upon the lex domicilii.</p> <p>5. The indorsement, by a oitizen of Louisiana, made in Kentucky, on a note payable to him in Louisiana, is governed by the law of Kentucky.</p>

<p>APPEAL FROM THE LAWRENCE CIRCUIT COURT.</p> <p>1. The! provisions of tho Civil Code regulating proceedings in cases of foroible entry'and detainer, (sections 500 to 518, inclusive,) .are a substantial re-enactment of tho aot of 1810. (Stat. Law, 715.)</p> <p>2. The want of a judgment upon the verdict of a jury in the country, on a writ Of, forcible entry and detainer, is no ground for dismissing-the traverse in the circuit court. Such judgment is not necessary to enable a party to maintain a traverse,</p> <p>3. In such case the truth of the inquisition in the Country is the only matter involved in the issue to be tried by tho jury in the circuit court.</p> <p>4. üpon an inquest in theoountry on a writ of forcible entry and detainer, the’verdict of the jury, “the defendants not guilty,” is sufficiently explicit and responsive to, the inquiry submitted to them, and a traverse thereof may be brought. Strict technical precision and regularity not required in verdicts arid proceedings'' under tho itatutes regulating this remedy.</p>

<p>CASE 28 — PETITION EQUITY</p> <p>cited 8 B. Mon., 135; 1 Parsons on Contracts, 270, note b; 11 John., 539; Parsons on Contracts, 271, note e. e; 2 Dev. & Bait., 320.</p> <p>cited 4 J. J. Mar., 238.</p>

<p>APPEAL PROM THE LOUISVILLE CHANCERY COURT.</p> <p>1. Debts, owing to mechanics for the construction or repairing of houses in the ©ity of Louisville, are favored by the law, and a preference is given to them over other debts of the owners of the property, to the extent of the value of the property improved which has not been previously incumbered.</p> <p>2. The lien of a mechanic upon a house constructed by him in the city of Louisville, for the amount due him therefor, is an incumbrance upon it within the meaning of chap. 36, art. 15, of the Rev. Statutes.</p> <p>3. “Where such lien exists, andan execution is levied upon the property, the purchaser, at the sale made under it, and his vendee, only acquire a lien thereon for the purchase money and interest after the rate of ten per centum per annum from the day of sale till paid. That the property was not levied upon and sold as incumbered property, and that, after the sale, the purchaser removes the incumbrance which was upon it, will not give him an absolute title.</p> <p>4. Other creditors may, before the purchaser has by suit removed the incumbrance, bring suit to subject the incumbered property. (Rev. Stat., sec. 2, art. 15,chap. 30.) But, where the purchaser under the execution has otherwise removed the prior in. cumbrance, and sold the property before the suit was brought, the sale may be permitted to stand, and a personal judgment be rendered against him.</p>

<p>CASE 30 — PETITION EQUITY</p> <p>cited 1 Met., 450.</p> <p>cited 1 Met., 457.</p> <p>cited 2 Met., 52; 3 Met., 399; lb., 539; 5 Dana, 220; 1 Met. 450; 3 Story's Hep., 453; 2 lb., 340, 360; 2 Lawrence, {Ohio) 400; 18 B. Mon., 312; 1 Met., 632; 3 Met., 450; 14 B. Mon., 403; Parson's Mercantile Law, 304, note 4 9 B. Mon., 189; 3 Met., 48, 51; Civil Code, sec. 153; 4 Dana’ 331; 8 lb., 81; 14 B. Mon., 533; 8 lb., 11; 2 Barn. & Adol.,Q3; 14 B. Mon., 290; 9 Dana, 77; 3 Mon., 86; 3 Met., 95.</p>

<p>CASE 31 —</p> <p>cited 4 Bibb, 461; 5 Litt., 20; 1 Met., 624.</p> <p>cited 4 Bibb, 479.</p> <p>cited 1 Litt. Laws Ky., 642; 2 lb., 963; 2 Stat. Law, 1231; Rev. Stat., chap. 20; 5 Litt., 21; 4 Bibb, 52, 56.</p> <p>cited 4 Bibb¡ 52; 3 Mon., 58; 5 lb., 97; Rev Statutes, chap. 70; 2 Stat. Law, 1231; 1 Mon., 236; 5 Litt., 21; 5 Mon., 590; 1 Mar., 42; 4 Bibb, 395; 1 Litt'., 412.</p>

<p>APPEAL FROM THE BOURBON CIRCUIT COURT.</p> <p>1. Section 106 of the Civil Code, which provides that every action, except those enumerated íd the previous sections, “may be brought in any county in which the defendant, or one of several defendants \ resides or is summoned,” does not change materially the former law on the same subject. It does not authorize judgment by default against a defendant served in another county, except where the cause of aotion is local, or where it affects himself and another served in the county where the action is brought.</p> <p>2. An objection to the misjoinder of causes of action is waived unless taken in the manner provided by the Civil Code; yet such misjoinder cannot have the effect to give the circuit court jurisdiction over a claim improperly joined against a defendant served in another county, and to render judgment by default against him, although the other defendant is served in the county where the action is brought.</p> <p>3. Allegations, which amount to nothing more than the mere statement of a legal conclusion, are insufficient.</p>

<p>APPEAL PROM THE HARDIN CIRCUIT COURT.</p> <p>1. The court of appeals will not reverse a judgment on account of the error of the circuit court in refusing, on motion, to strike out irrelevant or redundant matter in a pleading, if it do not appear that the appellantwas prejudiced thereby. (Civil Code, sec s. 147, 161.)</p> <p>2. The decision in Waller, &c. vs. Martin, (17 B. Mon., 188,) that, in an action ex delicto against several defendants, some of whom were, and some of whom were not* summoned, there could be a trial as to the former, and judgment against them, without any disposition of the' case as to the latter, is, in effect, overruled by the decision in Hedger vs. Downs, (2 Met., 160.) This ruling does not apply where all are summoned. (Civil Code, sec. 402.)</p> <p>3. If several persons jointly commit a tort the plaintiff, in general, has his election to sue all or some of the parties jointly, or one of them separately. This rule has not been changed by the Civil Code.</p> <p>4. In an action against several defendants, for assault and battery, they filed separate answers^ a joint verdict was rendered against them, and judgment entered ac-oordingly. A new trial was granted as to one, (an infant, because no guardian ad litem bad been appointed,) and refused as to the others, against whom the judgment was allowed to stand for the sum named in the verdict. The judgment is affirmed, (Judge Williams dissenting.) (Civil Code, sec. 402; 15 JB. Mon., 547.)</p> <p>5. See the dissenting opinion of Judge Williams.</p>

CASE 34 — PRIVATE PASSWAY cited 2 Rev. Stat.., page 294, sec. 40; lb., 296, sec. 10; lb., 285, sec. 3; lb.-, 295, sec. 3; lb., 287, sec. 7; lb., 295, sec. 5; 3 Met., 70; 2 J. J. Mar., 74; 3 Mon., 51; 4 J. J. Mar., 40; 2 Bibb, 4; 3 B. Mon., 300. cited 2 Revised Statutes, sec. 10 of art. 2, on page 296. cited Act of Feb. 13, 1858.

<p>CASE 35 — PETITION EQUITY</p> <p>cited Rev. Statutes, chap. “ Wills” sec. 18; 10 B. Mon., 172; 11 B. Mon., 93; 2 Rev. Statutes, chapter “Heirs and Devisees;" 1 Met., 301.</p> <p>cited 2 Met., 466; Roper on Legacies, 69; Jarman on Wills, 51; 9 Dana, 2; 9 B. Mon., 204; 12 lb., 115; 2 Rev. Statutes, page 461.</p>

<p>CASE 36 — PETITION EQUITY</p> <p>cited Civil Code, secs. 574 to 585; ., secs. 440, 88; 14 B. Mon., 270; Miles vs. Watson, Mss Opin., Sept., 1854; Petit vs. Perry, Mss. Opin., Jan., 1855; Bodley's heirs vs. Morris, Mss. Opin., Oct., 1857.</p>

<p>APPEAL PROM THE MARION CIRCUIT COURT.</p> <p>1. A deed, though acknowledged and left in the clerk’s office for registration, is not constructive notice to creditors and purchasers, until the tax be paid thereon. {Rev» Stat.} chap. 24, sec. 32.) As to .them, the vendee has but an equitable title.</p> <p>2. If a man is silent when he ought to speak, equity will debar him from speaking when conscience requires him to be silent. (Roberts on JPratid. Con., 527-8.)</p> <p>3. A deed was acknowledged and left for registration, but the tax not paid on it; the vender, who is insolvent, remained in possession of the lot conveyed, and contracted with a mechanic to build a house upon it. While the building was progressing, the vendees, aware of it, stand by, see ic go up, remain passive and silent — the mechanic not having had any notice of their claim. Meld, (in a suit to enforce the mechanic’s lien,) that the property is subject thereto.</p>

<p>CASE 38 — PETITION EQUITY</p> <p>cited 1 Met., 71; 2 Kent’s Com., 824; 17 B. Mon., 492.</p> <p>cited Story on Promissory Notes secs. 64, 65; Story on Bills of Exchange, secs. 7475; 5 Mar., 299; 6 lb., 58; 8 Cowen, 31; 2 Brod. Sf Bing., 460.</p>

<p>APPEAL PROM THE PAYETTE CIRCUIT COURT.</p> <p>1. See the opinion in this case for a discussion of the question as to the rights to what are called fixtures; (1,) as between heir and executor: (2,) between the executor of a tenant for life and the remainder man or reversioner; (3,) between landlord and tenant; (4,) in respect to fixtures erected for the purposes of trade; (5,) between vendor and Vendee, mortgagor and mortgagee.</p> <p>2. Upon the sale of tbe freehold, fixtures will pass in the absence of any express provision to the contrary.</p> <p>3. What will give chatties the character of fixtures and deprive them of that of personalty? See opinion for a review of the authorities on this subject.</p> <p>•4. In this case chandeliers or gas burners in a house are held to he fixtures.</p>

<p>APPEALS PROM THE KENTON CIRCUIT COURT.</p> <p>1. A11 agreement to pay for lottery tickets delivered to a party t>y the managers of a lottery, or return them not soLd, made in Delaware,-and not prohibited by the laws of that State, and containing no stipulation to do any act in violation of the laws of any-other State, is valid; and notes and mortgages executed by such party, in consideration thereof, is enforceable here, although such party may have violated the laws of another State in his disposition of the tickets.</p> <p>2. In contracts, called '‘contracts of sale or return/’ the property in the goods passes to the purchaser, subject to an option in him to return them within a fixed time or in a reasonable time; and, if he fails to exercise this option hy so returning them, the sale becomes absolute and the price may be recovered, in an action for goods suld and delivered. (3 Eng. Law and Eg. Rep., 311; 3 Euer, 336; 14 Johnson, 167.)</p> <p>3. A mere sale in one State or country, made with knowledge that the vendee intended to use the prop'erty to violate some positive law of another State or country, may he the foundation of an action, even in the State or country where law was intended to be violated. (3 Met. Mass., 207; Cowper, 391; 1 Curtis, 244.)</p> <p>4. Where lottery tickets are obtained by a party living in one State, upon an order sent to the vendors in another, the contract must be regarded as having been made in the latter State, and its legality tested by the laws in force there. (3 Met. Mass., 207.)</p>

<p>APPEAL FROM THE HICKMAN EQUITY AND CRIMINAL COURT.</p> <p>1. A paper containing -written evidence of the contract declared on, although in the record, cannot be considered, if it be not referred to in the petition.</p> <p>2. If the petition does not aver that the contract declared on was in writing, nor refer to any writing, it must be assumed that it was a verbal contract. (15 B. Mon., 443; 3 Met., 474.)</p> <p>3. A sale of standing trees, in contemplation of their immediate separation from the soil, by either the vendor or vendee, is a constructive severance of them, and they pass as chatties; and, consequently, the contract of sale is not embraced by the statute of frauds. (1 Green. JSv., sec. 271; 13 B. Mon., 340.) And this though no definite time be fixed for their removal.</p> <p>4. The phrase, “in contemplation of immediate separation from the soil,” is used to distinguish a sale of standing trees, or growing crops, which passes no interest in the land, except a license to enter upon it for the purpose of removing them, from a contract conferring an exclusive right to the land for a time for the purpose of making a profit out of the growth upon it.</p> <p>5. Where standing trees are sold as chatties, the selection and marking of them by the purchaser, with the knowledge and oonsent of the vendor, is a constructive delivery, and the title vests in the purchaser. But—</p> <p>6. In such case, if one bona fide purchase the land for a valuable consideration paid, and acquire title thereto, before ho had notice of the sale of tho trees, he is entitled to them, and the purchaser of the trees must look to his vendor for damages. That he had notice before the trees were cut would be immaterial.</p>

<p>CASE 42 — PETITION EQÜITY</p> <p>cited A Blackstone, 230, note 1 ,sub-div. 4; 1 Stanton’s Digest, 391; 3 'Gray, 461; Chitty on Contracts, 674; lb., 659; 14 Penn., (2 Harris,) 18; 3 Drane, 184; 8 Black/., 148; 1 Camp., 45; 2 Met., (Mass.,) 53; Story on Contracts, sec. 569.</p> <p>cited 58 Eng. C. L. Rep., 371; Smith on Contracts, side page 143 and note; 1 Jones Pa., 81; 9 B. Mon., 93.</p>

CASE 43 — PETITION EQÜITY Smith, assignee of Standeford sued Jenkins upon a note for $500, part of the consideration for 'certain real estate purchased by Jenkins of Standeford, seeking a personal judgment and the enforcement of the vendor’s lien. Willis and wife and Hughes and Vandyke, who held the notes for the balance of the purchase money, were also made defendants, together with Standeford.

<p>CASE44 —PETITION ORDINARY</p>