Volume 63 — Kentucky Reports

<p>1. The mere fact that a horse is branded with the letters “ U. S'’ does not, per se, prove the title to be in the United-States.</p> <p>2. Although an action may be maintained for breach of an implied warranty of title to a horse in the vendor’s possession, without a judicial eviction as required in express warranties, yet the proof of breach should, in such case, be peculiarly satisfactory.</p> <p>3. The ex parte act of a military officer in seizing a horse claimed to belong to the United States can have no effect on the question of ownership, without strong proof that the act was right.</p>

<p>1. In an action against several, one of them being a nominal and unnecessary party, between whom and the plaintiff there is no litigation, a judgment against “ the defendants,” without discrimination, although erroneous, is a clerical misprision.</p> <p>2. One who, if the plaintiff succeeds, may be liable to the defendants for negligence, is a competent witness for plaintiff.</p> <p>3. Where a contract of affreightment contains a provision entitling the carriers, in the event of their own liability for damages, against which the consignor had obtained an insurance, to recover the amount from the underwriter, the carrier must pay the damage before he can claim such right.</p> <p>4. In such case the consignor may sue either the carrier or underwriter; and a judgment in favor of the carrier against the underwriter, or vice versa, would not bar the right of the consignor to recover against the carrier. [Am. on Ins., 2d ed., 11T8-80; Phitt. on Ins., 3d ed., lTOÍ-ll’.)</p> <p>5. Where several parties are associated for the transportation of freight from Louisville to New York, executing through bills of lading, and charging through freight, they will each be chargeable as common carriers between those points. And, in such cases, public justice and commercial policy require a stringent construction against any intermediate irresponsibility.</p>

<p>1. After a judgment against the bail, on a forfeited recognizance, the court has no discretionary power, under section 94, Criminal Code, of remission as to the defendant in the indictment who had, jointly with his bail, entered into the recognizance.</p> <p>2. A bail bond or recognizance by a defendant in an indictment, is unauthorized by law, and is not therefore obligatory on him, either as a statutory or common law obligation, but is binding on his surety.</p>

<p>CASE 4 — EJECTMENT</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p>

<p>1. The mere fact that a railroad has not been completed, and may never be, is no defense to an action to recover the amount subscribed to its capital stock.</p> <p>2. The sale of the property and franchises of a corporation, under a decree to satisfy a mortgage, does not pass to the purchaser debts due the corporation, nor destroy the corporate existence of the company.</p> <p>One who subscribes for the capital stock of a corporation thereby becomes a stockholder, and it is no defense to an action to recover the amount of his sub-subscription that no certificate of stock has been tendered him.</p>

<p>CASE 6 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p>

<p>CASE 7 — APPEAL</p> <p>APPEAL PROM MONTGOMERY CIRCUIT COURT.</p>

<p>1. A summons which recites the date and amount of the recognizance, and, by reference to the recognizance, sufficiently identifies the offense, is sufficient.</p> <p>2. A defendant who voluntarily appears in court on the return of an indictment, is in legal custody of the court, and a recognizance entered into by him and his sureties, whilst in such custody, is valid.</p> <p>3. S. being indicted for burglary and larceny, in separate indictments, but for the same act,-he and his sureties entered into a joint recognizance for his appearance to answer both indictments. Held — That although a single recognizance on two separate indictments is irregular, such irregularity is not necessarily prejudicial to the cognizors, and is valid.</p> <p>4. As, in such case, there could be but one conviction and one punishment, the two indictments are, in effect, no more than two counts in the same indictment.</p>

<p>1. Although a court cannot, at a subsequent term, revoke or correct an order merely erroneous, yet it may and should disregard its own order if it is void.</p> <p>2. A certificate by a justice' that a negro committed by him to jail “was arrested and brought before him as a runaway slave,” without anything to show an adjudication that he was a runaway slave, did not authorize the county court to order him sold; and such order and sale, and all proceedings under it, were void.</p>

<p>CASE 10 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p>

<p>1. The sale of a growing crop of tobaeco, which was paid for by the purchaser —the seller to cut the tobacco when matured, and to cure it — is not constructively 'fraudulent as to creditors, merely because the seller retained the possession.</p> <p>2. The sale, in such cases, passes the title to the purchaser.</p>

<p>CASE 12 — INDICTMENT</p> <p>APPEAL EROJI KENTON CIRCUIT COURT.</p>

<p>CASE 13 — PETITION EQUITY</p> <p>APPEAL FROM MUHLENBURG CIRCUIT COURT.</p>

<p>CASE 14 — INDICTMENT</p> <p>APPEAL PROM KESÍTON CIRCUIT COURT.</p>

<p>1. The city authorities of C. elevated the grade of the street six feet above the natural surface of defendant’s adjacent lot, and the owner of an adjoining lot on the side of the natural drainage filled his lot to correspond with the street, neither the city nor the owner of adjacent lot malting any provision for the escape of the water from defendant's lot, in consequence of which, the water accumulated into a putrid and noxious pond. Held — That these facts did not render the defendant liable for keeping and permitting a nuisance.</p> <p>2. Til order to render one responsible for a nuisance, it is necessary to show that he had some agency in its creation; or, that he had done some act procuring or causing its continuance, or omitted some duty in regard to it which he was legally bound to perform.</p>

<p>CASE 16 — PETITION EQUITY</p> <p>APPEAL FROM NICHOLAS CIRCUIT COURT.</p>

<p>CASE 17 — PETITION EQUITY</p> <p>APPEAL. FROM NICHOLAS CIRCUIT COURT.</p>

<p>CASE 18 — PETITION EQUITY</p> <p>APPEAL PROM GARRARD CIRCUIT COURT.</p>

<p>CASE 19 — PETITION EQUITY</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p>

<p>A creditor, who, having a return of nulla bona against his debtor, institutes suit in equity to subject the choses in action, equitable or legal interest, or other property of his debtor, acquires a lien on such property or effects, on the service on the defendant of a summons, with the objects of the suit indorsed on it. (Sections 474, 476, Civil Code.)</p>

<p>The keeper of a hotel, who, in the same house, buys and retails liquors, tobacco, and other articles, as an unrestricted business, is a merchant within the statute limiting actions between merchant and merchant.</p>

<p>CASE 22 — PETITION ORDINARY</p> <p>APPEAL PROM FAYETTE CIRCUIT COURT.</p>

<p>CASE 23 — PETITION EQUITY</p> <p>APPEAL FROM MADISON CIRCUIT COURT.</p>

<p>CASE 24 — PETITION ORDINARY</p> <p>appeal from warren circuit court.</p>

<p>The creditors of an insolvent husband cannot, in equity, subject to the payment of their debts land purchased by the husband in his own name, and paid for by a credit on the wife’s distributable share of her father’s estate, until after an equitable settlement on her.</p>

<p>1. An affidavit and demand, as preliminaries to a suit, are only necessary when the suit is against a personal representative. (1 Met., 26.)</p> <p>2. But no judgment can be rendered on a demand against the estate of a decedent until the affidavit required by see. 36, art. 2, chap. 37, Rev. Stat., is made.</p> <p>3. The, payee of a note, who has transferred it by parol, is a necessary party to an action in the name of the assignee. (1 Met., 657.)</p> <p>4. In an action against a devisee, to subject assets devised to the payment of the testator’s debts, the personal representative of the testator, if there be one, is a necessary party.</p> <p>5. After the defendant has deposited in court the amount of the debt, there should be no judgment for the sale of the land attached.</p> <p>6. It should not be left to the commissioner to fix the time of a decretal sale. The court should fix the time by at leasts one general designation — such as the first day of some county or circuit court. (Civil Code, section 253.)</p>

<p>1. When, in an equitable action, an'issue of personal identity is, on motion of ohe of the parties, without objection by the other, submitted to a jury and a verdict found, and a motion for a new trial overruled, the court cannot, at a subsequent term, disregard the verdict and find the issue the other way. The same weight should be given to the verdict of a jury on an issue in equity as in an action at law. (Section 343, Civil Code.)</p> <p>2. A son was absent, his whereabouts being unknown; his mother became bis guardian, received his estate, and afterwards died; it was distributed among her representatives who had knowledge of the manner — and who supposed the ward was dead — i-n which she held it. Held — That the representatives of the guardian held subject to the same trust; that the property never became theirs, and their holding not being adverse, the statute of limitations did not apply.</p> <p>3. In such a case the distributees of the mother were liable for profits, but not for deterioration not resulting from their neglect.</p>

<p>CASE 28 — PETITION EQUITY</p> <p>APPEAL FROM MARION CIRCUIT COURT.</p>

<p>1. If the owner of real estate suffers a nuisance to be created or continued by another on or adjacent to his premises, in the prosecution of a business for his benefit, when he has the power to prevent or abate the nuisance, he is liable for an injury resulting therefrom to third persons.</p> <p>2. An excavation, six or eight feet deep, running up to the edge of a pavement in a populous city, is a nuisance, if left at night without sufficient lights, safeguards, or barricades, to warn off passers-by.</p> <p>3. Where the owner of real estate in a city employs undertakers to excavate a cellar and erect a building, and it is done in such a manner as to result necessarily in a nuisance, unless prevented by the proper precautionary measures, the owner -is bound to the exercise of such measures, else he must answer in damages for injuries resulting to others from the neglect to do so.</p> <p>4. In such a case, it does not matter what may have been his contract with the undertaker, his responsibility results from others doing, at his instance, that which must needs result in a nuisance, unless prevented by the appropriate precautions.</p> <p>5. The degree of prudence required of a stranger, knowing nothing of an excavation, when passing along a street in a populous city after nightfall, without anything to admonish him of danger, must be left to the jury.</p>

<p>CASE 30 — PETITION EQUITY</p> <p>APPEAL FROM MAGOFFIN CIRCUIT COURT.</p>

<p>CASE 31 — FORCIBLE DETAINER</p> <p>APPEAL FROM BRACKEN CIRCUIT COURT.</p>

<p>1. The holder of the legal title to land sought to be subjected, in equity, to the-payment of a judgment, after a return of no property, is a necessary party.</p> <p>2. Whenever the petition omits a party deemed necessary by the chancellor, he-ought, before final hearing, to notify the petitioner thereof and give him a reasonable time to supply the. defect, (¿fee. 40, Civil Code.)</p>

<p>CASE 33 — PETITION EQUITY</p> <p>APPEAL PROM FRANKLIN CIRCUIT COURT.</p>

<p>CASE 34 — PETITION EQUITY</p> <p>APPEAL PROM KENTON CIRCUIT COURT.</p>

<p>CASE 35 — PETITION EQUITY</p> <p>APPEAL FROM HARDIN CIRCUIT COURT.</p>

<p>A defendant sued for usury pleaded that he had sued on the debts alleged to have embraced the usury, and obtained judgment at law; that execution issued on the judgment was returned “ no property," and. that he had subsequently sued in equity to subject the interest of the plaintiff in certain lands to the payment of the debts, which had been done, and the debts satisfied. Held — That these facts presented no defense to the action.</p>

<p>CASE 37 — PETITION EQUITY</p> <p>APPEATi FROM JEFFERSON OCRCUlT COURT.</p>

<p>1. The subject-matter is an indispensable element of a contract for the absolute sale of it, as an existing thing, and its unexpected non-existence deprives the contract of legal obligation, and both parties may treat it as void.</p> <p>2. S. sold tobacco to G. and received the agreed price; but before that time, the tobacco had been sold by the agent of S. to strangers for a sum larger than that paid by G. On presentation of the order for the tobacco, the agent paid G. the whole price for which he had sold it. Meld — That S. was entitled to recover the excess over the price he received from G.</p>

<p>CASE 39 — INDICTMENT</p> <p>APPEAL PROM MADISON CIRCUIT, COURT.</p>

<p>1. A demurrer to an answer brings the whole record before the court, and judg- ' ment on the demurrer should be against the party committing the first material error in his pleading.</p> <p>2. Where, in an action to recover real estate, the plaintiff sets out, specifically, his title — consisting in part of a sale under execution and sheriff’s deed — andt appears from the petition and exhibits that the sale was not made on the first day of a county or circuit court, the petition should be adjudged insufficient, on demurrer to the answer.</p> <p>3. A sale of land under execution, on any other than the first day of a county or circuit court of the county where the land lies, is void, unless consented to by the defendant. (1 Stant. B,ev. Stat.,p. 482; 6 Bm.M., 115; 13 Ben. M., 507.)</p>

<p>CASE 41 — INDICTMENT</p> <p>APPEAL FROM ADAIR CIRCUIT COURT.</p>

<p>1. An allegation in the petition that the plaintiffs “ learn that the defendants are indebted,” &c., without any averment that the facts so learned are true, does not present a sufficient cause of action.</p> <p>2. The rules of pleading- require the facts to be set forth in direct and positive terms. It is not sufficient to state the party’s belief, or his learning, or his inferences in regard to the facts essential to his claim or defense. *</p> <p>3. An allegation that the defendant is indebted "about $400,” is insufficient, and will not warrant a judgment for that amount.</p>

<p>CASE 43 — PETITION EQUITY</p> <p>APPEAL JROM HARRISON CIRCUIT COURT.</p>

<p>CASE 44 — PETITION EQUITY</p> <p>APPEAL PROM PAYETTE CIRCUIT COURT.</p>

<p>1. A petition for dower alleging legal seizin in the husband of plaintiff, a sale by him to defendant, without the plaintiff’s concurrence, concluding with the allegation that she “ is entitled, to the use, for life, of one third of each of said tracts of land as her dower therein,” is sufficient, if not controverted, to show the plaintiff’s right to dower, although she does not expressly allege that she was the vendor’s wife at the time of the sale.</p> <p>2. A simple allegation of title, untraversed by answer, may be considered an admitted fact, even though it is a fact blended with, and moulded by, the law. (9 Barb., 219.)</p>

<p>1. A railroad company, by its charter, having a right to one railroad only, but the choice of three routes, cannot complain that one of those routes, which it did not adopt, was used by another company.</p> <p>2. An amendment to a railroad charter is as much a part of it as if incorporated in the original grant.</p> <p>3. A provision in a railroad charter that no other railroad should be constructed between two named points in a city, cannot be construed as prohibiting the construction of street railways anywhere within the city for the convenience of its inhabitants.</p> <p>4. In a technical sense, a street rail way is not a railroad, and, in such contra-distinctive sense, the term “railroad" was used in the charter.</p> <p>5. A proviso in the charter of a city railway company that its railways shall not “affect the legal rights of any other companies,” only protects the latter in the use of their roads and the exclusive right to railroad profits, and does not prohibit the construction of a street railway.</p> <p>6. Monopolies are odious, and generally unjust and detrimental, and are never implied from a simple grant of a franchise not necessarily of an exclusive character.</p>

<p>CASE 3 — PETITION EQUITY</p> <p>APPEAL FROM FRANKLIN CI-ROUIT COURT.</p> <p>cited 8'/. J. M., 620; 7 B. Mon., 97.</p> <p>cited 7 Mon., 659; 4 J. J. M..e 200; 3 Liti., 361; 3 Mon., 309; 7 B. Mon., 96.</p>

<p>CASE 4 — PETITION EQUITY</p> <p>APPEAL PROM ANDERSON CIRCUIT COURT.</p> <p>cited 3 Mon., 171; 1 Marsh., 385; 1 Stat. Law, 496; 1 Rev. Stat., 282; 17 B. Mon., 705; 3 Met., 359; 4 /. J. M., 230; 3 Mon., 247; 1 Met., 553; 4 Dana, 552. .</p> <p>cited 1 Rev. Slat., 427; 1 Met., 582.</p>

<p>CASE 5 — PETITION ORDINARY</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>cited 1 Bibb, 537; 1 Lilt., 15; 5 Mon., 360; 2 Dana, 248; 2 Parsons on Contr., 185 and note; Ghiity on Contr., 697, 734.</p> <p>cited 1 Domat Civ. Law, par. 485; Aleyn, 26; 3 Burr., 1639; Vat., bk. 1, *h. 20, sec. 244; Const. U. S., art. 1, sec. 8; Taylor on Land, and Ten., 183; 1 Fonb. Eq., 378-9; Ambler’s Rep., 619; 5 Mon., 539; 2 Hen. Sf Mun., 5.</p>

<p>CASE 6 — PETITION ORDINARY</p> <p>APPEAL FROM NICHOLAS CIRCUIT COURT.</p> <p>cited Const. U. S., art. 1, sec. 8.</p>

<p>A parol sale by a married ■woman of a slave acquired by her since 1846 is void. (Sac. 2, chap. 2, Rev. Stat., 9; 12 B. Mon., 329.)</p>

<p>1. One who advised and procured a rebel force to camp on the farm of another, and to consume, carry away, and destroy his property, is liable to the owner of such property for its value, and for smart money, in damages.</p> <p>2. This statement in the bill of exceptions — “defendant then asked to read the deposition of E. E., but the court refused, she being- in Madison county, as shown at the bar” — is not an exception to the ruling of the court.</p> <p>3. The deposition should not have been read, unless filed with the papers of the case before the commencement of the trial. (Civil Code, sec. 649.) Had it been so filed, it could have been rejected only on filing written exceptions, specifying objections and noted of record. (Secs.'650 to 654.)</p> <p>4. The statement in the affidavit of a witness, alleged to be newly discovered, that he had not communicated the facts to the party till after the trial, is not sufiieient, unless tlie party also state that the facts were unknown to him till after the jury retired.</p>

<p>On the trial of one indicted for an illegal escape from the penitentiary of the State, a certified copy of the judgment of the circuit court, sentencing the defendant to serve in the penitentiary, is competent to prove that ho was legally in custody of the keeper of the penitentiary, without a transcript of the whole record of conviction. (1 Stant. Rev. Stat., p. 395; Orim. Cgde, sec. 287.)</p>

<p>CASE 10 — PETITION ORDINARY</p> <p>APPEAL FROM HENDERSON CIRCUIT COURT.</p> <p>cited 7 B. Mon., 74; 4 Litt., 166; 2 B. Mon., 68; 3 Mon., 383; 8 B. Mon., 68.</p>

<p>CASE 11 — PETITION ORDINARY</p> <p>APPEAL FROM BALLARD CIRCUIT COURT.</p> <p>cited Ky. Const., sec. 4, art. 6; 2 Rev. Stat., 351; Ibid, 285.</p> <p>cited Ky. Const., sec. 1, art. 6; 3 Met., 237; Sess. Acts, 1861-2-3, py. 60, 315; 1 R. S., 450; 2 R. S., 239, 339, 340.</p>

<p>A judgment on a cross-petition by a defendant seeking relief against a co-defendant not made a party, nor served with process, and who did not answer, is void.</p>

<p>1. M, agreed that if H. would sign a note, payable to him, as surety for L., he would procure the signature of G-. .as a co-surety. H. signed and delivered the note to M., who failed to obtain the signature of G., and L. became insolvent. Held — That, although such an agreement would not impair the obligatory force of the note, nor bar M.’s right of action on it, yet H. might rely on a breach of the agreement as a counter-claim, and recover whatever damage he had sustained.</p> <p>2. Although a pleading may be defective, yet if the necessary allegations may be implied from the pleading in connection with the instructions and verdict, the apparent defect will not be ground of reversal.</p> <p>3. Where the infant sues by guardian or next friend, the latter may testify for the plaintiff; but not where the suit is brought in the name of the guardian on a note executed to him. (Oivil Code, sea. 54.)</p>

<p>A suit to foreclose a lien is not an action for the same cause as a suit at law to recover a personal judgment on a note which is secured by the same lien, within the meaning of section 120 of the Civil Code. That section has not changed the former rule on the subject.</p>

<p>Where a housekeeper, with a family, owns but one cow, and sells her to enable him to buy another that gave milk, the purchaser, knowing at the time the object of the sale, will not be allowed to set off against the price which he agreed to pay in money any debt he may hold against the seller, but will be compelled to pay the whole price in money.</p>

<p>1. A slave who, with his master, removed to, and became a resident of, Illinois, became thereby free, under the ordinance of 1787.</p> <p>2. That such slave, whilst an infant, returned with his master to Kentucky, did not prejudice his right to freedom.</p>

<p>1. In a proceeding by motion to have execution on a lost replevin bond, the ptaintiff must prove the former existence of the bond, its contents, and that it had not been discharged; the defendant is not required to respond to the facts stated in the notice, and'no judgment by default can be rendered. (1 Rev. Stat., p. 467; Myers’ Sup., 206.) •</p> <p>2. In such case the court should direct the preparation of the paper to be substituted for the lost bond, and not leave it to the plaintiff or the clerk.</p> <p>3'. No execution can issue against the surety in a lost replevin bond, -unless the loss occurred before the surety was released. (Myers' Sup., 207.)</p>

<p>CASE 18 — INDICTMENT</p> <p>APPEAL PROM LYON CIRCUIT COURT.</p> <p>cited sec. 10, art. 3, Const, of Kentucky; 7 Peters, 160; 2 Bouv. Law Diet., 215; 4 Bl. Com., 394; Story on the Const., sec. 1492; 14 B. Mon., 392.</p>

<p>CASE 19 — PETITION EQUITY</p> <p>APPEAL PROM LARUE CIRCUIT COURT.</p> <p>cited 4 Mon., 442; 2 B. M., 379; 4 Dana, 282; 5 Dana, 278; Litt. Sel. Cas., 252.</p> <p>cited 8 B. M., 102; 18 B. M., 237; 3 J. J. M., 554; 4 B. M., 489; 6 J. J. M., 493; 12 B. Mon., 354; 9 B. Mon., 247; 4 Dana, 563; 1 Marsh., 494; 1 Dana, 565; 9 Dana, 323; 3 B. Mon., 655.</p>

<p>1. A sale of slaves owned by infants, made upon petition, in which they ara plaintiffs, without the intervention of next friend or guardian, and without the execution of a bond, as required by chapter 86, of the Revised Statutes, is void.</p> <p>2. Infants made defendants in one suit, but not served with process, actually or constructively, though plaintiffs, without next friend or guardian, in another suit consolidated with it, will not be bound by the judgment.</p> <p>3. No person other than a parent' can appoint a guardian by will, section 2, article 1, chapter 43. (1 Rev. Stat., 514.) But any other testator may appoint a trustee to take charge of a bequest made to infants or others.</p> <p>4. When the legal title of the land or slaves of infants is in a trustee, he is a necessary party to a suit to sell such property (sec. 545, Civil Code); but the proceedings, in all other respects, are required to be the same as if he had no interest.</p>

<p>1. An assignment in contemplation of insolvency, under the act of 1856, trans» fers to the use of the general creditors all the property owned by the assignor at the date of the assignment, but does not include after-acquired property, nor could the thing assigned and the proceeds of the sale of it be both subject to the debts of creditors. Although the sale may not have been made in contemplation of insolvency, yet if the notes taken for the price be afterwards so assigned, they will inure to the benefit of all the creditors.</p> <p>2. Where there is no registration of the assignment of land and personalty, possession by the purchaser for more than six months prior to the filing of the petition being overt, and therefore constructively notorious, will bar a proceeding to subject them under the act of 1856.</p> <p>3. Both insolvency and an assignment to a creditor or colluding stranger as ostensible purchaser, must concur before the trust for all the assignor’s creditors can result.</p>

<p>If the record of an action for a tort fails to show that the case was heard, or te> state anything from which it may be inferred that the court assessed the damages on proof, or if it shows the judgment was by default, it will be reversed.</p>

<p>1. An injunction arrests the execution of a fieri facias, though levied, and releases the levy and discharges the lien created by it, notwithstanding, the injunction is adjudged to have been wrongfully sued out. Keith vs. Wilson (3 Met., 202.)</p> <p>2. A creditor whose execution has been levied and then enjoined, should, on a dissolution of the injunction, sue out nvwfi.fa., and not a venditioni.</p>

<p>CASE 24 — PETITION ORDINARY</p> <p>APPEAL PROM BATn CIRCUIT COURT.</p> <p>cited 2 Rev. Stat., p. 8; Ibid.,pp. 226, 229; 3 Marsh., 80; 1 Duvall, 407; 18 B. Mon., 163; 1 Stat. Law, 110; 2 Ibid., 381-2; 2 Litt. Dig., 39, 89; Sess. Acts 1846, p. 46.</p> <p>cited 1 Stat. Law, 78; 18 B. Mon.-, 166; 3 Met., 584 to 595.</p>

<p>1. The abortive attempt, by force, to dissolve the union, did not essentially change the fundamental relations of the citizens of the revolting States. De jure they still owed-allegiance to the government, and continued to be citizens of the United States.</p> <p>2. By the common law, even an alien enemy may take as a devisee, and may hold tlio property devised subject to the will of the testator’s government; consequently, neither alienage nor hostility can render a devise to a public enemy entirely void.</p> <p>3. If the plaintiff is a public enemy, to dismiss absolutely on that ground would be erroneous; it should be without prejudice.</p> <p>4. That one of the plaintiffs, who is a merely nominal party, and who could not' control the suit nor collect the judgment, is a public enemy, is no ground for dismissing the petition of the beneficial plaintiff who is not an enemy.</p> <p>5. A testator devised one piece of property to the three sons of G., and another piece to two of them. One of the latter died before the testator, unmarried and without issue. Held — That the devise to the three went in equal parts to each of the survivors, and the devise to the two went wholly to the survivor of them.</p>

<p>1. An affidavit for an attachment, under the act of 23d December, 1861 (Myers' Sup., 38), must allege, in substance, that the debtor has loft the comity of his residence, that he has been absent therefrom 30 days, and that during that period he has been and continued voluntarily within the so-called Confederate States, or their military lines.</p> <p>2. A bill Was drawn and indorsed in Lexington, Ky., 1861, payable in New Orleans, L.a., on the 13th January, 1862, and not presented for payment, or protested, Until one year after its maturity. Meld — That the existing hostilities and uncertainty Of mail communications was a reasonable and legal excuse for failing to present the bill for payment, and the indorser was not thereby released.</p> <p>3. Several creditors sued out and levied their attachments on the property of their debtor; those first sued out and levied were adjudged to be defective, and the plaintiffs amended their affidavits Under act 15th March, 1862 (Myers' Sup., 41), ^nd claimed a lien from the suing out of their original attachments. Meld — That they had a lien as between themselves and their debtor, but, as between them and subsequent attaching creditors, they only had a lien from the filing of the amendment. Allen vs. Brown (4 Met.) does not militate against the views expressed in this case.</p>

<p>CASE 2Í — PETITION EQUITY</p> <p>APPEAL FROM FAYETTE CIBOUIT COURT.</p> <p>cited 2 Williams on Ex., 727: 4 Kent, 536.</p>

<p>CASE 28 — PETITION EQUITY</p> <p>APPEAL PROM MARION CIROUIT COURT.</p> <p>cited 2 Story's Eq., sects. 1792, 1793; 2 Williams on Ex.,p. 1213; 9 B. Mon., 288; 13 B. Mon., 538; 3 Watts 4* S., 231,224; 4 Ibid, 196.</p> <p>cited 1 Bro. C. G., 497; 2 Moll., 317; 4 Madd., 484; 6 Madd., 134; 3 Wheat., 564; 1 Whart., 252; 8 Paige, 106, 124, 129; 7 Barr, 287,290; 2 Rawle, 185, 189; 13 Serg. R., 230; 3 Ired. Eq., 204; 14 Peters, 534; 5 Munf., 117; 3 Leigh., 419; 2 Grattan, 280; b How. Sup. Ct., 234; 7 Dana, 13; 6 B. Mon., 525; 11 B.. Mon., 182, 88; 3. Met., 463.</p>

<p>1. A deed executed by an attorney in fact, and recorded, does not operate as constructive notice, unless the power of attorney is also recorded, or lodged for record. (1 Mev. Stat., p. 280.)</p> <p>2. An agent cannot convey to himself, or to another for his use, so as to raise an equity in his favor; nor would an equity result to an agent from a parol agreement between him and his principal, whereby the former was to apply the proceeds of the sale to a debt due him from the latter; such parol agreement being within the statute of frauds.</p> <p>3. Matters of defense alleged in a petition to be made a party — such petition being filed as an answer. — need not be denied by a reply, but must be proved, even though some of the facts, so alleged, have been denied in a reply which was unnecessarily filed.</p>

<p>1. A statement in a notarial protest of the reasons given by the treasurer of the United States for refusing payment of a treasury note is not evidence in an action to recover the nominal value of the note of one from whom the plaintiff received it. The protest is only evidence of presentation and refusal to pay.</p> <p>2. Where a treasury note is made payable to a disbursing officer, and, by a regulation of the treasury department, of which the courts will not take judicial notice, it is not obligatory on the government until indorsed by him, oné who receives it from a third person cannot recover of him the nominal value of such note, as upon an implied warranty.</p>

<p>CASE 31 — PETITION ORDINARY</p> <p>APPEAL FROST HARD-IN CIRCUIT -COURT.</p> <p>cited 1 Pars. Contr., p. 493; 1 Bouv. Law Diet., 570.</p> <p>cited Civ. Code, secs. 37, 38; 7 B. Mon., 5; 14 B. Mon., 189, 193; 1 Story’s Eq„, 32; 2 Am. Lead. Cas., 77, 101, 42-3; Story on Contr., sec. 873; Parsons on 'Contr., 501, et seq.; 7 Cranch, 79; 2 Peters’ Cond. Rep., -417; 7 Peters, 122; 2 Camp., 413; 8 Johns., 119.</p>

<p>CASE 32 — PETITION ORDINARY</p> <p>APPEAL FROM BATH CIRCUIT COURT.</p>

<p>A testator devised 450 acres of land to his daughter on condition that she should pay to her two nephews $500 each. The daughter died, devising the same land to the nephews. Held — -That as the legacy Was a direct charge on the particular estate devised to the legatees by the daughter, it must be deemed a satisfaction of the legacies.</p>

<p>CASE 34 — PETITION ORDINARY</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>cited 1 Parsons on Contr., 441; 6 Dana, 48; 7 Dana, 61; 1 Duvall, 183.</p> <p>cited 1 Parsons on Contr., 71; Story on Agency, pp. 11, 472, and note; 22 Pick., 457; 6 East., 614; Hilliard on*Sales, 135; Story on Sales, 282; Hill Sf Davis, 414; 19 Maine, 147; 20 Maine, 325; 21 Pick., 384; 4 Seld., 291; 16 B. Mon., 264.</p> <p>cited Smith's Merc. Law, 481; 1 Duvall, 183.</p>

<p>CASE 35 — INDICTMENT</p> <p>APPEAL EROH MERGER CIRCUIT COURT.</p> <p>cited 4 Bl. Comm., 184; 2 Kents Comm., 15; 7 J. J. M., 484; 1 Hawk. PI. Cr. Ch., 28, sec. 21; Foster on Horn., 273, 274; 14 B. Mon., 622.</p> <p>cited 15 B. Mon., 546; 1 Met., 379; 18 B. Mon., 53; 2 Starkie on Ev., 523.</p> <p>cited 18 B. Mon., 53. '</p> <p>cited Civil Code, sec. 334; 14 B. Mon., 622.</p>

<p>CASE 36 — MOTION</p> <p>APPEAL PROM MARION CIRCUIT COURT.</p>

<p>A testator, who died childless, gave, by his will, two sevenths of his residual estate to “the children of Mrs. Catherine Boyce, my deceased sister — her granddaughter, Mrs. Dunlap, wife of Col. H. C. Dunlap, to take the share which her father, Wm. Boyce, would take, if living.” Three of Mrs. B.’s children were living at the time the will was published; two others had died before the publication —William, leaving an only child, the grand-daughter mentioned in the will; and Martha, also leaving an only child, the plaintiff, who claims, under the will, the share that her mother would have taken if living. Held — That she' is entitled to such share, and that the word “children” was used synonymously with the words “issue,” “heirs,” or “descendants.” (1 Ves., sr., 196; Ambler, 691; 4 Ves., 497.)</p>

<p>CASE 38 — INDICTMENT</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p>

<p>CASE 39 — INDICTMENT</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>cited Rev. Stat., chap. 28, art. 10, secs. 1 and 4; Whart. Grim. Law, sec. 1758.</p>

<p>Service in the Confederate army does not legally operate as a disqualification ts practice as an attorney and counsellor in the courts of Kentucky.</p>

<p>CASE 1 — PETITION EQUITY</p> <p>APPEAL FROM HICKMAN CIRCUIT COURT.</p> <p>cited Civ. Cade, 563, 167, 168; 18 B. Mon., 71; Vans. Eq. Pr., 81; Roberts on Fraud. Con., 218 to 224; 3.Met., 474; 13 B. Mon., 499; 2 Met., 422; 7 Mon., 660; 4 B. Mon., 266; 5 B. Mon., 31; 6 B. Mon., 27.</p> <p>cited 1 Rev. Stat., 264; 14 B. Mon., 406; 15 B. Mon., 443; 4 Met., 86.</p>

<p>1. The fact the vendor of land is insolvent, and has no title to the land, is sufficient ground for enjoining a judgment against the vendee on his note for the purchase money, although the time for conveying the land may not have arrived.</p> <p>2. Where a judgment on a note given for land is rendered by the quarterly court, a petition for an injunction must be filed in that court. (Civ. Code, sec. 314.) And as the case would involve the title to land, it should be transferred to the circuit court. (Civ. Code, sec. 25.)</p> <p>3. Even if a petition for the mere purpose of executing or rescinding a contract for land might be deemed premature, yet if it shows a present equity for an injunction, and a probable ground for the future action of the court in behalf of the plaintiff, a demurrer to it should not be sustained.</p>

<p>CASE 3 — PETITION OBDINAEY</p> <p>APPEAL from bath circuit court.</p> <p>cited Hardin, 31; 1 Dana, 110. Nesbitt & Gudgell for appellees.</p>

<p>CASE 4 — PETITION EQUITY</p> <p>APPEAR FROM FLEMING CIRCUIT COURT.</p> <p>cited Civ. Code, 440; 14 B. Mon., 270; 1 Rev. Stat.,p. 555.</p> <p>cited .2 Met., 381; Ibid, 336, 52, 457; 3 Met., 538; 1 Met., 454; 2 Bl. Comm., 486; 3 Stoty’s Rep., 456; 2 Cush., 170; Hilliard on Bankruptcy, 346; 5 Law Rep., 289; Smith’s Merc. Law, 465; 1 B. Mon., 208; 9 B. Mon., 126; 7 Mon., 262; 3 Dana, 213; 4 Mon., 586; 3 Litt., 427.</p> <p>citéd Civ. Code, sec. 439, 91, 445.</p> <p>cited 2 Am. Lead. Cas., -366; 12 B. Mon., 388; 1 B. Mon., 327; 3 Bibb., 467; 1 Dana, 22; 3 J. J. M., 528; 6 Mon., 575; 4 Mon., 492; 7 Mon., 398; 9 B. Mon., 235; 4 J. J. M., 366; 2 Bibb, 309; 3 Bibb, 360; 2 Rev. Stat.,p. 400.</p>

<p>CASE 5 — INDICTMENT</p> <p>APPEAL PROM OHIO CIRCUIT COURT.</p>

<p>CASE 6 — INDICTMENT</p> <p>APPEAL PROM CHRISTIAN CIRCUIT COURT.</p> <p>cited 1 Rev. Slat., p. 397; Criminal Code, sec. 49.</p> <p>cited Grim.- Code, secs. 65, 92.</p> <p>cited Grim. Code, sec. 49; 3 Met., 477.</p>

<p>CASE 7 — INDICTMENT</p> <p>APPEAL MtOM HART CIRCUIT COURT.</p> <p>cited 14 B. Mon., 390; 18 B. Mon.f 28; 1 Met., 319; Crim. Code, sec. 66.</p>

<p>The statute (Myers’ Sup., p. 504) allowing the absence of the defendant as a volunteer in the army of Kentucky, or of the United States, as grounds of continuance in prosecutions, applies alike to those indicted before and after its passage.</p>

<p>CASE 9 — PETITION ORDINARY</p> <p>APPEAL PROM LIVINGSTON CIRCUIT COURT.</p> <p>cited Civ. Code, secs. 651; Edwards on Bills, 696.</p> <p>cited Civil Code, secs. 65, 135, 221; Smith's Merc. Law, p. 333 to 336; Story on Bills, secs. 447, 448, and notes; 1 Kent, secs. 3 and 4; 4 Dana, 314; 3 B.Mon.> 513.</p> <p>cited 4 Met., 342; Civ. Code, secs. 649 to 654.</p>

<p>1. That the defendant was absent in the federal army at the time he was bound by a recognizance to appear in court to answer an indictment, and was unable to procure a furlough to attend the court, is a valid defense against the recognizance.</p> <p>2. But the defendant is not a competent witness, in such a case, to prove these facts, at the instance of his sureties, though his statement, under oath, may be heard upon a motion to remit the forfeiture; and a remission on such statement is not improper, the defendant having given a new recognizance to appear.</p>

<p>O. placed Confederate notes or bonds in the hands of A. to purchase cotton, which A. was to sell, and, after deducting costs and commission, was to pay over to O. the residue. Held — That the contract was against public policy, and could not be enforced. (1 Duv., 24.)</p>

<p>1. 'Although the statute requires the surety in a bail bond to be a resident of the State, yet, if a non-resident be refceived as bail, he will be bound.</p> <p>2. If the bail be a non-resident, and the Commonwealth proceeds by attachment against his property in this State to satisfy a forfeiture, and a judgment for a sale of the attached property is rendered on constructive service, and reversed, and, before another judgment is had the Governor remits the forfeiture, the commonwealth’s attorney will not be entitled to the per cent, given him by statute on judgments on forfeited recognizances.</p>

<p>The appearance of the parties to a motion, and their agreement to set the hearing of it for a specified day, and a trial and judgment on the merits, is a waiver of previous irregularities.</p>

<p>CASE 14 — PETITION ORDINARY</p> <p>APPEAL FROM GARRARD CIRCUIT COURT.</p> <p>cited 1 Rev. Stat., pp. 508, 1553; 7 J. J. M., 352; 2 Dana, 43; 4 J. J. M., 556.</p>

<p>CASE 15 — PETITION EQUITY</p> <p>APPEAL PROM MADISON CIRCUIT COURT.</p>

<p>CASE 16 — INDICTMENT</p> <p>APPEAL PROM HICKMAN CIRCUIT COURT.</p> <p>cited ] Rev. Steel., p. 397; Whart. Am. Crim. Law, 5th ed., sec. 2696; Bishop’s Crim. Law, 3d ed., sec. 814; Crim. Code, sec. 260.</p> <p>for the Commonwealth, cited 1 Rev. Stat., 397; Crim. Code, secs. 364, 365, 366, 367.</p>

<p>A testator by his will gave his wife all his estate during her life or widowhood, and directed that, after the death of himself and his wife, all his negroes should be set free, each to have $200, and, when freed, to be conveyed to where they could enjoy the right to freedom. The widow having married, the negroes, in 1864, sued for their freedom and for their legacies. Held — That their title to freedom and legacies, under the will, would not accrue till the death of the widow; that the amendment to the Constitution of the United States gave them freedom and a right to the legacies, but no right to an outfit for removal; and that the decree deciding their claim premature, being right when it was rendered, cannot be reversed for facts occurring subsequently.</p>

<p>1. An order taking- a petition for confessed should not be made before the process is served on all the defendants concerned in interest with those against whom the confession is taken.</p> <p>2. An order taking petition for confessed, being merely interlocutory, does not prevent the tiling of a meritorious answer at any time before the submission of the case for trial.</p> <p>3. The mere statement of a petition by a creditor seeking relief against a voluntary conveyance made after the creation of the plaintiffs’ demand, that he had obtained judgment for it against the administrator of his debtor, and caused execution to issue which had been returned nulla bona, is not sufficient to entitle him to a judgment, even though the defendants make default. In such a ease, the facts constituting the original cause of action should be stated in the petition against the fraudulent grantee.</p> <p>4. A judgment against an administrator is not evidence in an action by a creditor of the intestate against those to whom he has conveyed his property, without valuable consideration, after the creation of the plaintiffs’ demand, for any other purpose than to show that the creditor had, in good faith, sought to recover his debt of the debtor, and had failed. In such a case the grantees may controvert the justness of the plaintiffs’ demand, notwithstanding the judgment against the administrator; but it would be otherwise if the judgment had been against the creditor.</p> <p>5. The administrator of the debtor is a necessary party to a suit after -judgment against him and return of nulla bona, to set aside a conveyance on the ground that it was voluntary, and made subsequent to the creation of the plaintiff’s debt.</p>

<p>A tavern-keeper who rents a room in his house, in good faith, to be used as a bed-room, and who has no control over it, is not responsible if it he used by a lessee of his tenant, without his knowledge, to set up a faro-bank.</p>

<p>The act prohibiting certain courts in Jefferson county from receiving attorneys at law as surety or bail, is constitutional. (Sess. Acts 1865, p. 35.)</p>

<p>A devise of real estate to trustees, for the use of the testator’s son for life, remainder to the son’s children, in fee, with permission to the trustees to sell a porT lion of the estate to pay the son’s debts and to buy slaves, gives the creditors of the son no right to subject any portion of the estate to the payment of their claims.</p>

<p>The Sale of a growing crop of tobacco, although evidenced by writing reciting the payment of the consideration, will not prevail against creditors, without proof aliunde of the recited payment; such recital being no evidence against strangers to the transaction.</p>

<p>CASE 23 — PETITION EQUITY</p> <p>APPEAL FROM HARRISON CIRCUIT COURT.</p> <p>cited 1 Duvall, 75; 2 Rev. Stat., 457; 2 Dana, 216; 9 Dana, 491; 15 B. Mon., 563; 5 B. Mon., 370; 1 Williams on Ex., 49, 316.</p> <p>cited 2 Rev. Stat., 457.</p>

<p>CASE 24 — PETITION ORDINARY</p> <p>APPEAL EROM PENDLETON" CIRCUIT COURT.</p> <p>cited 13 B. Mon., 238; 14 B. Mon., 393; 18 B. Mon., 229.</p>

<p>CASE 25 — MOTION</p> <p>APPEAL PROM METCALPE CIRCUIT COURT.</p>

<p>Where an insolvent debtor went into court on the first day of the term, and confessed judgments in favor of some of his creditors, on which he caused executions to issue forthwith, and to be placed in the hands of the sheriff, thereby creating a lien on all his property — these acts constituted an assignment in contemplation of insolvency, within the statute prohibiting such assignments. (1 Bev. Stat., 545.) .</p>

<p>1. In an action against a non-resident to enforce a lien on land for the purchase money, the plaintiff alleged that the first installment had been paid, and filed a deed (which had never been 'delivered) reciting such payment. In an amended petition it was alleged that the acknowledgment of payment in the original petition was a mistake, and that no part of the first installment had been paid. Meld— That the allegations of the amended petition did not overcome the recital in the deed and the admission made in the original petition.</p> <p>2. Where, in a written contract for the sale of land, it was stipulated that the first installment of the price was to be paid the 1st of April, 1861, the title to be conveyed on the receipt of the first installment, the payment and conveyance were concurrent acts, and the vendor could not coerce payment by suit without tendering a deed.</p> <p>3. In an action exclusively in rein against a non-resident, a decree in personam is erroneous.</p> <p>4. Where, in action against a non-resident to enforce a lion on land for the purchase money, there is a judgment, and a sal,e under it, the defendant may, within five years, appear and open the judgment, and may elect a vacation of the sale if he should succeed in even modifying the judgment, or he may obtain the same relief by appeal. (Gin. Code, sec. 445.)</p>

<p>CASE 28 — PETITION ORDINARY</p> <p>APPEAL PROM MADISON CIRCUIT COURT.</p> <p>cited Hallack's Int. Law, 356-7-8; Lawrence's Wheat., 556; 1 Kent's Com., 66, 68.</p>

<p>The creditors of a firm having, through the equities of each partner, an exclusive lien on the firm assets for payment of their claims, should not be allowed to participate in the individual assets until the individual creditors are put on an equal footing. The rule laid down in Northern Bank Kentucky vs. Keizer {ante.; p. 169) is adhered to.</p>

<p>A surety in a replevin bond wrote to the plaintiff, giving his assent to a stay of execution until the 1st of the following April, and longer if the principal should ask it. The principal continued, from time to time, to ask and receive indulgence from 1st of April, 1860, to Hay; 1864, when execution issued and was enjoined by the surety. Held — That his letter was substantially a power of attorney to the principal, and authorized the plaintiff to extend indulgence, and that the surety was not released.</p>

<p>CASE 31 — INDICTMENT</p> <p>APPEAL PROM KNOX CIRCUIT COURT.</p> <p>cited Burrell on Gir. Ev., 472-3; Best on Presump., 208; 1 Duvall, 224; 2 Met.,31; 3 Ghitty's Grim. Law, 491; Crim. Code, secs. 123, 124, 128, 129.</p> <p>cited'1 Arch. Grim. Pr., 125.</p>

<p>1. The execution of process or notice, on which any legal .proceedings are to he founded, on Sunday, is void. (2 Rev. Slat., p. 347.)</p> <p>2. The holiday mentioned in the Civil Code {secs. 732, 733) means a day dedicated by usage to amusement and festivity, and does not include Sunday.</p>

<p>1. The charter of Lexington provides for the election of mayor, and other officers, on the first Saturday in January in each year, for the term of one year, to commence immediately after the election, tlic elected officers to be installed the first Thursday thereafter. A statute of 1864 extended the term to two years. Oís the first Saturday in January, 1865, the mayor and other officers were elected, and were installed the first succeeding Thursday. In February, 1866, an act was passed restoring the term to one year, and providing for'the election on the first Saturday in March in each year. Under the latter act a mayor and other officers were elected, and, on the first Thursday thereafter, they were sworn in. Held— That the act of 1866, and the election under it, were constitutional and valid, and. entitled the persons elected to hold their respective offices for a year succeeding their election.</p> <p>2. Although the act of 1866 does not expressly, yet it does constructively, provide that it shall be in force before the 3d March, 1866, and, therefore, its operation is not postponed, under the general statute, until after sixty days from its passage.</p> <p>3. Any office established by statute may be abolished by statute, unless it be a contract which cannot be impaired by legislation. An office established and held for the public good is not a contract, nor is its tenure secured by any binding contract.</p>

<p>CASE 34 — PETITION EQUITY</p> <p>APPEAL PROM HARRISON CIRCUIT COURT.</p> <p>cited 1 N. Y. Rev. Stat., 728; N. Y. Rep., 18, 515; 3 Met., 167.</p> <p>cited Hill on Trustees, 55, 72; 17 B. Mon., 114.</p> <p>cited 2 Rev. Stat., 230; 3 Met., 167.</p>

<p>CASE 35 — PETITION ORDINARY</p> <p>APPEAL MOM FRANKLIN CIRCUIT COURT.</p> <p>cited 2 Rev. Stat., 509; Se.ss. Acts, 1865, p. 6.</p> <p>cited Const. Ky., art 3, sec. 37; 2 Met., 589; 4 Met., 293; 5 Mon., 133; 3 Call., 268, 286; 4 Bl. Com., 312.</p> <p>cited Myers’ Sup., 681; 4 Met., 72; 3 Marsh., 489; Hard., 62; 4 Litt., 377; 10 B. Mon., 172; 3 Dali., 386; 7 Johns., 505; 2 Peters’ App., 681; Brae., lib.'4, fol. 228; 2 Just., 292; 2 Mod., 310; 2 Lev., 227.</p> <p>cited Rev. Stat., sec. 14, ch. 21; 5 B. Mon., 565; 2 Bouv. Law Die., 475; 1 Kent’s Com., 501; 3 Dali, 397; 7 Johns, 494; 6 Bac. Abr., 370; Co. Litt., 360. G, W. Craddock on same side.</p>

<p>CASE 36 — PETITION ORDINARY</p> <p>APPEAL PROM GARRARD CIRCUIT COURT.</p> <p>cited 91sf sec. C. Gif 328th sec., ib.; MS. opin., Myers vs. Spillman, <fc., Oct., 1864; sec. 253, G. C.; 1st, 2d, and 3d sub-divs., sec. 259, C. G.; 1st sub-div., sec. 440, C. C.; sec. 251, G. C.; 6th sub-div., 88th sec.,, C, C.; 1st sub-div., sec, 228, C. C.; secs. 221, 222, C.. G.; sec.. 253, G. C.; MS. opin., Hardin vs. Halsell, June, 1856; Dunn vs. Salter, 1 Duv., 342; Berryman vs. Mullins, 8 B. Mon., 154; 4 B. Mon., 544, 545; 3 Mon., 267; 2 Mar., 500; 6 Mon., 70; 7 Mon., 658; 1 Dana, 462; 6 Mon., 205; 2 B. M., 245; 6 Dana, 325; 3 Met., 546; 2 /. J. Mar., 546; 7 Mon., 324; 3 J. J. Mar., 105; 12 B. M., 600; 2 J. J. Mar., 463; lb., 75; 1 J. J. Mar., 166; 16 B. M., 334; 7 Mon.,-658; 5 J. J. Mar., 517; 7 J. J. Mar., 539; 3 Mon., 243.</p> <p>cited Civ. Code, secs. 88, 89, 228, 259, 446; 14 B. Mon., 271; 6 Mon., 70; 1 Marsh., 249; Hard., 94.</p> <p>cited Civ. Code, sec. 444.</p>

<p>M. held a note on O. and his two sureties. It was agreed that O. might have further indulgence'by giving a new note with the same sureties. A new note was given, signed by but one of the sureties. In an action on that note, judgment by default was rendered against the principal, but it was adjudged not obligatory on either of the sureties. Held — 1st. That the sureties were liable upon the old note, and were estopped from denying that the new note was ever obligatory; 2d. That the judgment against the principal in the former suit did not release or impair the liability of the sureties on the old note.</p>

<p>CASE-37 — PETITION ORDINARY</p> <p>APPEAL PROM JESSAMINE CIRCUIT COURT.</p>

<p>1. An officer in Morgan's Confederate army, who aided in the capture of Mount Sterling, but who neither counseled, aided, or even approved the robbery of the bank at that place by a portion of Morgan's soldiers, was not liable in damages to the bank for such robbery.</p> <p>2. The capture of the town itself was not, in the military sense, an unlawful act, but was allowable, by th°e laws of war, between antagonist parties recognized as belligerents.</p>

<p>1. The act “to amend an act to establish a levy and county court for Jefferson county” (Acts 1863-4,^). 23) is not within section 37 of article 2 of the Constitution of Kentucky.</p> <p>2. By said act of 1864, the Jefferson county court had power to increase the salary of the county attorney without the knoweldge or concurrence of the city Council of Louisville. " ¡</p>

<p>CASE 40 — PETITION ORDINARY</p> <p>APPEAL FROM CHRISTIAN CIRCUIT COURT.</p> <p>cited Civ. Code, secs. 120, 121, 28, 161; 3 Met., 61; 1 Rev. Stat., 327; 2 lb., 222; Sess. Acts, 1863-4, pp. 121, 122; Vat. Law of Nations, book 3, ch. 8, sec. 137; ch. 9, secs. 166 to 168; Poison’s Law of Nations, sec. 6, pp. 42 — 3; Wheat. Int. Law, p. 618.</p> <p>cited Wheat. Int. Law, Suppl., pp. 31, 520; Vatt., book 3, ch. 18, secs. 290-5.</p> <p>cited.2 Black’s Rep. Prize Cases,-666 to 674; Wheat. Int. Law, p. 342; 3 Wheat., 366; 4 Wheat., 392; 1 Duvall, 182. ,</p>

<p>1. In an action on a life insurance policy, where the defense relied on is false representations of the habits of the insured at its date, and that his death was caused by intemperance, the defendant held the affirmative of that issue.</p> <p>2. See the opinion for the facts, showing that' the verdict should not be set aside on the ground that it was not sustained by the evidence.</p>

<p>CASE 42 — PETITION EQUITY</p> <p>APPEAL FROM GARRARD CIRCUIT COURT.</p> <p>cited 5 Mon., 129; 2 Peters, 658; 2</p> <p>Thomas's Coke, 516; Gilbert on Tenures, 75, 78; 2 Johns., 248; 3 Dallas, 386; 12 Wheat., 303; 7 Johns., 93; '8 Johns., 511; 1 J. J. M., 563.</p> <p>cited 1 Duvall, 349; 4 Met., 43,</p>

<p>CASE 43 — PETITION EQUITY</p> <p>APPEAL FROM MERCER CIRCUIT COURT. .</p> <p>cited 16 15. Mon., 476; 1 Rev. Stat., 280; 17 B. Mon., 782.</p>

<p>CASE 44 — PETITION ORDINARY</p> <p>APPEAL PROM JEPPERSON COURT OP COMMON PLEAS.</p> <p>cited 3 N. T. Code Rep., 218.</p>

<p>An error of the court or clerk, in antedating the period at which interest should commence, may be corrected at a subsequent term as a misprision.</p>

<p>A note given for a sum lost at gaming is void in the hands of an assignee, notwithstanding a writing, executed at the same time by the makers, importing that “the note is just, and they have no legal offset against it, and no defense to make.”</p>

<p>CASE 47 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>cited 2 Rev. Stat., p. 304; Myers’ Supp., 430; 16 B. Mon. 296.</p> <p>cited 2 Rev. Stat., 32, 304; 4 Kent, 315; 2 Stat. Law, 806.</p>

<p>CASE 48 — PETITION ORDINARY</p> <p>APPEAL PROM FLEMING CIRCUIT COURT.</p> <p>cited 2 Am. Lead. Cases, pp. 35 to 117; 7 B. Mon., 5; 14 B. Mon., 184; 7 Peters, 113; 4 Met., 148.</p> <p>cited 2 Story's Rep., 214; 1 Story's Eq., sec. 384; 2 Met., 530; 4 Peters, 111, 207.</p>

<p>CASE 49 — PETITION ORDINARY</p> <p>APPEAL PROM M’CRAOKEK CIRCUIT COURT.</p>

<p>CASE 50 — PETITION ORDINARY</p> <p>APPEAL FROM m’ORAOKEN CIRCUIT COURT.</p> <p>cited Civ. Code, sec. 341; 2 Met., 543.</p> <p>cited 2 Marsh., 453; 6 Dana, 128.</p>

<p>1. On the trial of one indicted for felony, a confession madé by another jointly 'indicted with him, is not legal evidence. •</p> <p>2. Where the accused, being ig-norant and confiding, is influenced by his hopes or fears to make a confession to the officers of the law, such confession is inadmissible as evidence.</p> <p>3. Whether the facts prove that a confession had been extorted by duress or not, is a question of law for the court, and not the jury, to decide.</p>

<p>1. Pending the late war between the United States and the seceded States, it was as much the duty of the military commanders as of the civil authorities to see that the non-intercourse laws were enforced, and, especially, that nothing calculated to subserve the military purposes of the enemy should be carried within their lines.</p> <p>2. Where the military authorities had reasonable ground to believe that horses and mules were about being carried into the lines of the enemy for sale, it was their duty to prevent the consummation of such intention.</p>

<p>1. One not a party to a suit to set aside a sale as fraudulent, who, as assignee, holds notes given in consideration of the alleged fraudulent sale, is not concluded by a judgment declaring the sale void and setting it aside, on the application of creditors of the vendor.</p> <p>2. But when there are circumstances exciting strong suspicions of fraud, both in the sale of the property and the transfer of the notes, and the consideration of the assignment is very inadequate, the holder, when asserting a lien against a purchaser at decretal sale, will only be allowed to enforce it to the extent of the consideration actually paid for the notes.</p>

<p>The bequest of a legacy by a creditor to his debtor does not release or extinguish the debt, unless there is something in the will directly expressive of such intention, or from which it can be implied. (2 Williams on Me., p. 1118.)</p>

<p>CASE 55 — PETITION ORDINARY</p> <p>APPEAL FROM GRAVES CIRCUIT COURT.</p>

<p>CASE 56 — PETITION ORDINARY</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>cited 2 Story’s Eq., sec. 777; 1 Wheat., 179; Hilliard on Vend., ch. 12, sec. 31; Hardin, 544; 2 Marsh., 225; 4 Mon., 239; 1 Bibb, 611.</p> <p>cited 3 Bibb, 317; 2 Story’s Eq., sec. 778; 5 Munf., 185;' 4 Bibb, 81; 3 Litt., 358; 13 Peters, 36; Sug. on Vend., 371.</p>

<p>On an application for tavern license, the county court has a large margin of discretion which the court of appeals should never control, unless it has been manifestly abused.</p>

<p>A father conveyed land to his daughter “and her bodily heirs.” As the deed contained nothing from which it could be inferred that the words were used in a sense different from their technical import, the grantee acquired the fee. (2 Met., 331.)</p>

<p>The possession of lands of a married woman by her guardian is such a seizin as will entitle the husband to curtesy.</p>

<p>CASE 60 — PETITION EQUITY</p> <p>APPEAL FROM GREENUP CIRCUIT COURT.</p> <p>cited 1 Marsh., 124; 7 Mon., 632; 5 /. J. M., 361; 6 Dana, 447.</p>

<p>CASE 61 — INDICTMENT</p> <p>APPEAL FROM JEFFERSON CIRCDIT COURT.</p> <p>cited 2 Archb. Crim. Law, jop. 628, 630; 1 Greenleaf, 111.</p>

<p>CASE 62 — PETITION ORDINARY</p> <p>APPEAL FROM GREENUP CIRCUIT COURT.</p>

<p>CASE 63 — PETITION ORDINARY</p> <p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>cited 16 B. Mon., 586; 2 Met., 146.</p> <p>cited Story on Bailments, see. 601; 13 Peters, 181, 193; 2 Kent’s Corn., 830; 1 McLean’s Rep., 540; 2 lb., 157; 1 Metcalfe’s Rep., 1; 16 B. Mon., 586; 2 Met., 146, 558; Civ. Code., sec. 364.</p>

<p>CASE 64 — PETITION ORDINARY</p> <p>APPEAL PROM BOURBON CIRCUIT COURT.</p> <p>cited 4 Lilt., 328; 1 Mon., 84; 7 Lana, 87; 5 Lana, 29; 4 Gall., 114; 11 Bar. S. C., 26; 9 Geo., 341.</p>

<p>1. Upon the delivery of articles to the agent of a common carrier, he filled a blank in a printed receipt prepared by the company, stipulating against liability beyond the sum of $50. The articles were delivered by the consignor’s agent, who neither read nor understood its conditions, nor signed a printed indorsement accepting the conditions, and the consignor never saw the receipt until the good were lost. Held — -That it was competent to prove by the agent of the consignor that he did not read or understand, and did not accept the condition limiting the liability of the carrier.</p> <p>2. Public policy imposes on common carriers a constructive liability peculiarl y stringent, and they will not be permitted to limit that liability by special contracts, unless they are fairly made, without duress, imposture, or delusion, and are 'fully understood by the other party, and are clearly proved.</p> <p>3. Common carriers are bound to carry articles within the scope of their business, without any other contract than such as the law would imply.</p>

<p>i. The interest of a married woman in real estate,'the title to which had been vested in her husband to enable him to sell it for her use, is not lost by his absolute conveyance made without her consent — -the husband's vendee knowing the purposes of the conveyance, and recognizing the trust and the interest of the wife in the proceeds of the sale to be made.</p> <p>2. Section 20, chapter 80, 2 Revised Statutes, 230, does-not apply to personalty,, nor where a conveyance, absolute in form, is taken without the knowledge or consent of the party who pays the consideration; nor where it appears that it was not the intention of the parties to. divest themselves of all interest in the land, but only to effect a sale.</p> <p>3. Any writing by a trustee — even, 'a letter to a person other than the beneficiary — stating the trust, or any language clearly expressive of á trust intended by the party, will create a trust by implication.</p>

<p>CASE 67 — PETITION ORDINARY</p> <p>APPEAL PROM DAVIESS CIRCUIT COURT.</p>

<p>1. It is the duty of a turnpike company to have bridges wherever the safety or convenience of travel requires. Willful neglect of this duty means a knowledge by the company of the insufficiency of its bridge for that end, and a voluntary failure to remedy the defect; and a palpable and perilous defect, discoverable by ordinary vigilance, might authorize the presumption of such knowledge and neglect,</p> <p>2. The charter of a turnpike company (or other corporation) is a contract, with legal obligations, protected by the Constitution against any legislative impairment; but the act of 1854, for the redress of injuries arising from the neglect or misconduct of railroad companies (Sess. Acts, 1853-4, p. 175), is not such impairment, and is constitutional.</p> <p>3. See the opinion for a statement of the facts, which show that the turnpike company was not guilty of willful negligence in failing to repair a bridge; and that the verdict of the jury finding such negligence was against the evidence.</p>

<p>1. The act of 1839 (Sess. Acts, 93) gives to mechanics, material men, &c., a lien only on the interest which the employer may have in the premises or buildings. (12 B. Mon., 90.)</p> <p>2. The mechanic’s lien commences with the work, and continues to enlarge, pari passu, with its progress, and no intervening lien or incumbrance can break its continuity or curtail'its extent. (1 B. Mon., 257.)</p> <p>3. Under the fifth section of the act, registration of the claimant's demand within six months after completion of his work or materials furnished, or suit within that period to assert his claim, is necessary to secure the lien given by the</p> <p>4. No contract can be absolutely and immediately effectual unless the subject-matter of it bo actually existing, or proximately potential as the natural fruit of something that does exist. ’(1 B. Mon., 251.)</p>