Volume 66 — Kentucky Reports

<p>T. Betting on any game of chance is now a statutory offense, punishable by fine.</p> <p>2. An indictment charging'“a game of chance called pigeon-hole,” played for “greenbacks’’ in defendant’s house, substantially and clearly imports a violation of law.</p> <p>3. Although the court does not know judicially that “pigeon-hold’ is a game of chance, yet a demurrer to the indictment admits that it is, and also, that, on a game of chance, property was illegally won and • lost; and thus a statutory delictum is defined and charged with sufficient precision for all the purposes of pleading in penal cases.</p>

<p>As the personal attendence of Metcalfe on the final trial was not shown to be impossible, the circuit court erroneously admitted as competent the testimony of Compton and others, reciting the evidence of Metcalfe before the examining court, as to what the defendant said to him concerning the charge of stealing Compton’s mare. This error was not cured' by instructing the jury to disregard such hearsay evidence, “ except so far as it harmonized with facts afterwards developed,”</p>

<p>1. Proceedings in cases of bastardy are not criminal but civil proceedings, the chief object of which is the benefit of the mother and child. [Chandler vs. Commonwealth, 4 Metcalfe, 67, and cases died.)</p> <p>2. Since the universal abolishment of slavery throughout the United States by constitutional amendment, and the passage of the act of February 14, 1866 [Myers' Sup., 735), an unmarried negro woman may make the necessary affidavit, under the second section of said act, to sue out a warrant in bastardy against a negro man, as provided in chapter 6, Revised Statutes (1 Slant., 198).</p> <p>3. In the proceedings allowed by law in cases of bastardy, at the instance of the mother, in the name of the Commonwealth, the mother is nowise liable for the costs; therefore, whether she be insolvent or a minor, matters not, if she be competent otherwise to make-the necessary affidavit. Nor is it necessary that the warrant shall show that the mother is unmarried; if the evidence manifests that fact, it is sufficient.</p> <p>4. In proceedings in cases of bastardy, the accused has the right to testify in his own behalf under section 7, chapter 6, 1 Stanton’s Revised Statutes, 200. But if, on motion.of accused, by order of court, the witnesses were to be separately examined, and because he remained, and. heard the evidence of the witnesses, the reason of the rule would not exclude his evidence, as he had a right to remain and hear the testimony and cross-examine the witnesses. But, notwithstanding the court below may have erroneously refused to permit him to testify for this reason, the court of appeals will not, for this error alone, reverse the judgment of the court below, when the record does not intimate that he would have contradicted the evidence for the Commonwealth, or even stated a fact the least calculated to exonerate him from the charge, or when the record gives no assurance that he would have so testified. The court further say: “As we cannot know he would have stated any fact in his own behalf, we cannot say the court erred to his prejudice.”</p>

<p>CASE 4 — INDICTMENT—</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>CITED—</p> <p>Criminal Code, secs. 114, 116.</p> <p>4 Metcalfe, 219; Commonwealth vs. Roberts.</p> <p>CITED—</p> <p>Criminal Code, secs. 88, 94.</p>

<p>CASE 5 — INDICTMENT—</p> <p>APPEAL FROM TUB JEFFERSON CIRCUIT COURT.</p>

<p>CASE 6 — EECOGNIZANOE—</p> <p>APPEAL PEON BATH CIRCUIT COURT.</p> <p>CITED—</p> <p>Criminal Code, secs, 47, 23, 24, 25, 26, 48, 49.</p> <p>Session Acts, 1849-50, page 477.</p> <p>Ren, Stat., sec. 12, art. 1, chap. 91, 2 Stant., 342.</p> <p>3 Duvall, 437 ; Moore vs. Hagan.</p> <p>Rev. Stat., sec. 13, chap. 71, 2 Stant., 192.</p> <p>Rev. Slat., sec. 11, chap. 71, 2 Stant., 191.</p> <p>1 Bush, 176; Tompert vs. Lithgow.</p> <p>CITED—</p> <p>Rev. Stat., 1 Stant., sec. 12,page 342.</p> <p>2 Duvall, 437; Moore vs. Hagan ; 5 IAitell, 199.</p>

<p>CASE. 7 — INDICTMENT—</p> <p>APPEAL PROM LARUE CIRCUIT COURT.</p> <p>CITED—</p> <p>Criminal Code, sec. 80.</p>

<p>CASE 8 — INDICTMENT—</p> <p>APPEAL PBOM'M’lEAH CIRCUIT COURT.</p> <p>CITED—</p> <p>Criminal Code, secs. 88, 185, 69, 150, 80.</p> <p>7 Dana, 244; Starr vs. Commonwealth.</p> <p>MSS. Opin., Dec., 1857; Jones vs. Commonwealth.</p> <p>1Duvall, 178; "Wintersoil vs. Commonwealth.</p> <p>1 Duvall, 244; Johnson vs. Commonwealth.</p> <p>2 Metcalfe, 386; Commonwealth vs. Coleman.</p> <p>1 Duvall, 276; Askins vs. Commonwealth.</p> <p>Rev. Stat., 1 Slant., 571.</p> <p>3 J. J. Marshall, 642; West vs. Commonwealth.</p> <p>3 Monroe, 212; Hamilton vs. Commonwealth.</p> <p>1 Institutes, 343.</p> <p>3 Marshall, 456; Commonwealth vs. Mason.</p>

<p>CASE 9 — INDICTMENT No. 1 —</p> <p>APPEAL PROM DAVIESS CIRCUIT COURT.</p> <p>CITED—</p> <p>Rev. Stat.,.sec. 2, art. 16, chap. 28, 1 Stant, 396.</p>

<p>When it appeared that the failure to mate a debt was not the sheriff’s fault, and certainly did not result from his failure to return the execution within thirty days after the return day thereof, the plaintiff in the execution had no legal right to recover against him any portion of his uncollected debt under section 4, article 18, chapter 56, Revised Statutes. ■ The amendatory act of August 28th, 1862 (Myers’ Sup., 213), did not apply in this case, because it was enacted while this suit was pending. The plaintiff in the execution, consequently, was legally entitled to recover thirty per cent, on the uncollected balance of his execution for the failure to return within the thirty days.</p>

<p>CASE 11 — INDICTMENT No. 3 —</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>CITED—</p> <p>Rev. 8tat., sec. 2, art. 16, chap. 28, 1 Stant., 396.</p>

<p>“That if the jury shall believe from the evidence that Smaltz, the prisoner, did actually believe, and had reasonable grounds for believing, that, at the time of the shooting, his life was in danger, or that his person was in danger of great bodily harm by the hands of McDonald, and that the same was then imminent, that'he had the right to use any means then in his power necessary to avert the impending danger, and that if he shot McDonald then, reasonably feeling that lie was so in imminent danger, and that the shooting was necessary to his defense, that ho is justifiable in the shooting, the same being self-defense, and they must acquit him.” Held — The above instruction embodied the law and nothing more or less in constructive effect; and as there was no semblance of evidence which would have authorized the jury to infer that the combat, was prearranged or even premeditated by both parties; and, consequently, there was no pretext for finding that it was, in the technical sense, “a combat by mutual consent," it was error in the circuit court to add to the above instruction the following words, which were misleading, to-wit: “Provided they further believe the combat was not by the mutual consent of the parties."</p>

<p>1. Mason advanced and conveyed lands, about nine years before his death, to four of his children, upon their parol agreement and promise to pay at his death, to his two other children, William and Margaret, as much pro rata in money as would equalize the advancements in land. A few months after the death of his father, William instituted suit against the four donees, making Margaret and her husband also defendants, to recover the amounts agreed to be paid by parol as above. Held by the court — That as the promise was simply to pay money, no memorial.in writing was necessary to its enforceability; and as there was no cause of action until within less than one year before the action was instituted, the statute of limitations was out of the way.</p> <p>2. Defendants having an interest in the subject of litigation in common with the plaintiff — who did not answer and join issue with the plaintiff, having conveyed all the benefit they might have claimed in the subject of the suit to their only child — are competent witnesses for the other defendants, who have joined issue and controvert plaintiff s cause of action.</p> <p>3. The depositions of defendants in behalf of each other are incompetent, though the contract in litigation might be several, yet joint in its form and character, when its proof or disproof by any one of the contracting parties interested in the question would bind or exonerate all.</p>

<p>CASE 14 — INDICTMENT No. 2 —</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>cited—</p> <p>Rev. Stat., sec. 4, chap. 91, 2 Stant., 347.</p>

<p>CASE 15 — PETITION ORDINARY —</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>CITED—</p> <p>Rev. Stat., 2 Stant., 261, 344, 339, 262, 396.</p> <p>14 B. Mon., 29 ; Commonwealth for Mains vs. Teal, <Sfc.</p> <p>CITED—</p> <p>Rev. Stat., 2 Stant., sec. 3, p. 262; sec. 11, j». 260; secs. 1 and 2,p. 261; sec. 25, p. 244; sec. 3,p. 339.</p> <p>6 Monroe, 581; Dehart vs. Wilson.</p>

<p>CASE 16 — INDICTMENT—</p> <p>APPEAL PROM GRAVES CIRCUIT COURT.</p> <p>CITED—</p> <p>Criminal Code, lsf subsec. of sec. 159, and sec. 160.</p>

<p>CASE 17 — PETITION ORDINARY —</p> <p>APPEAL PROM PERRY CIRCUIT COURT.</p> <p>CITED—</p> <p>MSS. Opinion, Brannaman vs. Palmer, note b, Myers' Code, p. 379.</p> <p>4 Metcalfe, 57; True vs. Triplett.</p> <p>Civil Code, secs. 128, 125.</p> <p>Revised Statutes, title “ Contracts.”</p> <p>CITED—</p> <p>Civil Code, sec. 128.</p> <p>2 Metcalfe, 143; Shropshire vs. Conrad.</p> <p>4 Metcalfe, 175.</p> <p>Hardin, 150; Morrison’s ex’r vs. Hart.</p> <p>3 Bibb, 49; Williams vs. Gilcrist.</p> <p>3 Marshall, 34; Farquhar vs. Collins.</p> <p>5 Littell, 3; Pemberton vs. Brown.</p> <p>2 Dana, 269; Hanna Sp Co. vs. Pleasants, Spc.</p>

<p>Although the enlistment as a substitute exonerated the drafted man irons liability to serve Under the draft, yet the latter had as right to stipulate for faithful servicej and as the substitute so stipulated, and deserted after being mustered into the service, he was not entitled to recover an unpaid balance of the amount whieh was promised him for his becoming a substitute.</p>

<p>1. The sale of a note implies a guarantee of its genuineness as to all apparent parties to it; but the holder is under an implied obligation to try, by due diligence, the liability as well as the solvency of the ostensible obligors, so as to hold the assignor liable, either as guarantor or vendor.</p> <p>2. That there was no special guarantee dispensing with suit on the assigned note, and that there was not legal diligence in the prosecution of, the suit by the assignee or vendee as brought, are both deductions of law from the facts, and therefore there was no available error in the peremptory instruction to find for the defendant.</p> <p>3. If, in a suit on an assigned note, the defendant pleads non est factum, and thereupon the plaintiff dismisses his action, he will not, for this reason, be entitled to recover against his assignor on his implied warranty of genuineness. The plaintiff ought to have tested the genuineness of the note by a verdict of a jury and judgment of the court.</p>

<p>CASE 20 — PETITION EQUITY —</p> <p>APPEAL PROM GARRARD CIRCUIT COURT.</p> <p>CITED—</p> <p>6 Dana, 471; Lawson vs. Moore.</p> <p>CITED—</p> <p>Rev. Stat., sec. 12, chap. 47, 2 Stant., 27.</p>

<p>1. After the rendition of a judgment for the foreclosure of a lien upon land, and the appointment of a commissioner to sell the land, the defendant, owner of the land, before the commissioner’s sale thereof, filed his petition alleging several grounds for a new trial, but did not obtain an injunction against the execution of the judgment, as provided for by section 584, Civil Code. Held — That, as the judgment was not enjoined, neither the plaintiff nor commissioner perpetrated any illegal act by proceeding to sell the land, and hence would not be responsible for any sacrifice of the land by reason of a proper and legal sale, as directed in the judgment.</p> <p>2. As neither the plaintiff nor commissioner proceeded illegally to execute the judgment for the sale of the land, the defendant’s only remedy was by proceedings to vacate the judgment and sale. The defendant having confirmed the judgment and sale by a compromise with the purchaser of the land, is without further remedy, and is not entitled to recover against the commissioner or plaintiff. — And especially was he not entitled to any damages, when, by his own acts, he contributed largely, if not entirely, to the sacrifice of his land.</p>

<p>1. A bond which contains no covenant to pay the claimant of any property seized and sold under a distress warrant, the damages sustained by such claimant in consequence of such seizure and sale, as prescribed in section 709, Civil Code, presents no bar to an action against a constable for the wrongful seizure of property, &c.</p> <p>2. A constable and his surety are liable, on their official bond, for the tortious acts of the constable under color of his office, as for nonfeasance and unintentional misfeasance in office.</p> <p>8. A surety of a constable is not liable, on his official bond, for the constable’s acts of violence, which are personal wrongs. (Murrell vs. Smith, 3 Dana, 463; Oalvertvs. Stone, 10 B. Mon., 152.)</p> <p>4. “ The jury are instructed that a constable, in making a levy, has a legal right to enter a dwelling through a window, provided he does not break any fastenings to the same.” This instruction should not have been given by the circuit court.</p> <p>5. A constable has no right to force open an outer door or window which is closed and fastened, although he may not break a lock or catch, to make a levy of a fieri facias or distress warrant.</p>

<p>CASE 23 — BAIL BOND —</p> <p>APPEAL PROM LOUISVILLE CITY COURT.</p> <p>CITED—</p> <p>Criminal Code, sec. 80.</p> <p>CITED—</p> <p>1 Duvall, 1; Shaw vs. Commonwealth.</p> <p>1 Duvall, 245; Johnson vs. Commonwealth.</p> <p>1 Duvall, 199; Commonwealth vs. Roberts.</p> <p>CITED—</p> <p>Criminal Code, secs. 303, 304</p> <p>CITED—</p> <p>Sess. Acts, 1865, p. 270, sec. 18.</p> <p>3 Bush, 19; Commonwealth vs. S/ceggs, S/-c.</p>

<p>CASE 24 — FORCIBLE DETAINER —</p> <p>APPEAL FROM GARRARD CIRCUIT COURT.</p> <p>CITED—</p> <p>1 Marshall, 559 ; Morgan vs. Ballard.</p> <p>17 B. Mon., 18 ; Payne vs. Vandcveer.</p> <p>1 Marshall, 323; Helm vs. Strader.</p> <p>CITED—</p> <p>3 Mar., 344 ; Chiles vs. Stephens.</p> <p>5 Littell, 186 ; Mattox vs. Helm.</p> <p>1 Mon., 39 ; Taylor vs. White.</p> <p>Revised Statutes, sec. 16, 2 Stanton, 229.</p> <p>2 Bibb, 432 ; Clinton vs. Clinton.</p> <p>4 Bibb, 524 ; Harrison vs. Marshall.</p>

CASE 25 — MOTION— APPEAL PROM JEFFERSON COUNTY COURT. CITED— Rev. Stat., sec. 6, art. 1, chapter 43. Rev. Stat., sec. 16, art* 1, chap. 37. CITED— 3 Dana, 600; Isaacs vs. Taylor. Rev. Slat., sec. 11, chap. 43, 1 Slant., 576. Rev. Stat., secs. 6 and 8, art. 2, chap. 43, 1 Slant., 578. CITED— Civil Code, secs. 363, 364. 3 Dana, 600 ; Isaacs vs. Taylor. Rev. Stat., secs. 11 and 12, art. 1, chap. 43,1 Stani., 576.

<p>1. A mortgage, describing correctly other debts secured by it, describes the debt to C. 0. Storms as duo by “a note or notes for about three hundred and fifty dollars,” and the debt of N. Storms as “an account for about fifty dollars.” This cannot be construed as including six notes to 0. C. Storms, amounting, in the aggregate, to more than fifteen hundred dollars, or notes and accounts to N. Storms exceeding nine hundred dollars. If the note or notes to C. C. Storms had exceeded three hundred and fifty dollars only to a small extent, “about three hundred and fifty dollars” might have constructively embraced the actual amount; but when the excess is so enormous and incredible, “about three hundred and fifty dollars” must be fixed at three hundred and fifty dollars; and so, more especially, in the case of N. Storms, must the debt secured by the mortgage be fixed at fifty dollars.</p> <p>2. The commissioner’s only authority was to report facts to the court for its inspection, but not to dictate its ultimate decision.</p> <p>3. The deposition of a husband, after his wife has obtained a divorce from him, is competent testimony against her interest, when it divulges no communication between them during coverture.</p> <p>4. For any debt paid by a surety to a creditor, embraced by the mortgage, the surety will be entitled to stand as a subrogated beneficiary.</p>

<p>1. On defendant’s motion for a new trial in an action of malicious prosecution for felony, the circuit judge announced that he would grant a new trial unless the plaintiff would accept a judgment for one thousand dollars in discharge of the verdict of the jury for four thousand dollars in damages in his favor. The plaintiff on protest elected to accept the judgment for one thousand dollars, and thereupon the motion for a new trial was overruled and judgment rendered in favor of plaintiff for one thousand dollars, from which defendant appealed, and the plaintiff took a cross-appeal. Reid — That “the judgment is certainly anomalous. Courts have often granted new trials on equitable conditions applied to the applicant; but we know of no precedent for overruling a motion for a new trial on terms required of the party opposing it. In this instance the court itself virtually assessed the damages, and thereby deprived each party of his right to have an assessment by a jury. This seems to be error to the prejudice of the defendant, if he was entitled to a new trial, and to plaintiff’s prejudice,-if the defendant was not entitled to a new trial.”</p> <p>2. In an action for malicious prosecution for a felony, on a plea of probable cause, the burden of proof is on the defendant, who thereby assumes the affirmative, and the counsel for the defendant has the right to conclude the argument to the jury. „</p>

<p>A slave, who volnntered in 1865, to serve in the Federal army, being rejected as unfit for service, procured a certificate of freedom from a provost marshal, did not thereby become a free man. Having returned to his hirers, and continued in their service under a new contract made by and with the slave, the hirers were liable to the owner of such slave for his actual services for the time he served them that year, up • to the date of the adoption of the constitutional amendment abolishing slavery, notwithstanding it was stipulated in the contract that, if he should voluntarily leave their service during the term of hire, they were to pay only for the time he served." In an action in equity to adjust the liability of the parlies after the slave became free by the manumitting amendment to the Constitution, he was a proper party, as, by the contract, the slave was to receive a portion of the hire at the end of the year, and ha„d received it, and the hirers were entitled to a credit for that amount.</p>

<p>CASE 29 — PETITION EQUITY —</p> <p>APPEAL FROM GARRARD CIRCUIT COURT.</p> <p>CITED—</p> <p>1 J. J M., 236; Breckinridge vs. Owsley.</p> <p>2 Blackstone, 291.</p> <p>4 Littell, 21; Pyle vs. Craven.</p> <p>1 Bibb, 552 ; Buler vs. Young.</p> <p>Story's Eq. Juris., sec. 227, ed. 1861.</p> <p>Civil Code, sec. 884.</p>

<p>CASÉ 30 — PETITION EQUITY —</p> <p>APPEAL FROM LOUISVILLE CHAHCERY COURT.</p> <p>CITED—</p> <p> American Cyclopedia, titles “Pneumonia, Heart.” </p> <p>3 Met., 33; Robinson vs. Bright.</p> <p>7 Mon.; Hart vs. Hampton.</p> <p>4 Littell, 245; McGee vs. Ellis df Browning.</p> <p>5 Littell, 136; Faucett vs. Pendleton.</p> <p>17 B. Mon., 368; Etlinger, Sfc., vs. Tansey, SfC.</p> <p>3 J. J. M., 709; Brummel vs. Hurt.</p> <p>2 J. J. M., 33; Wolford vs. Phelps.</p> <p>7 J. J. M., 641; 3 Dana, 550..</p> <p>CITED—</p> <p>4 J. J. M., 154; Rogers vs. McKnight.</p> <p>1 Met., 230; Griswold, dfc., vs. Taylor’s adm’r.</p> <p>3 Met., 30; Robinson vs. Bright’s ex’r.</p> <p> Parsons on Contracts, sec. 14, p. 385. </p>

<p>1. If a party desiring to appeal to the circuit court attempts, in good faith, to execute a bond, and does in fact execute, with surety, such a bond as is prepared by the clerk, and it is defective, he should be allowed to execute a new bond without prejudice to his rights.- .{Adams vs. Settles, 2 Duvall, 11; Civil Code, sec. 153.)</p> <p>2. On motion of the appellee in the circuit court to dismiss the appeal for want of sufficient bond, in consequence of blanks being left therein, it was error in the circuit court to refuse to permit the appellant to execute a sufficient bond.</p> <p>3. On dismissing the appeal, the law remitted the appellee to his original judgment, and did not allow another judgment by the circuit court for 1,he amount of that judgment.</p>

<p>1. If the bill of exchange was received bona fide in the discharge of an existing debt, whether the person so passing it to the plaintiffs was acting rightful or wrongful, the plaintiffs would be protected by the law merchant as having received it innocently for a valuable consideration in the regular course of business. (Alexander &; Co. vs. Springfield Bank, 2 Met., 535.)</p> <p>2. The most sure and correct test as to whether the bill of exchange was received as actual payment, or as collateral security only, is to ascertain whether the party receiving the bill has precluded himself from suing on the original cause of action, or from recovering a judgment as to so much of his debt as the bill amounts to.</p> <p>3. If the bill of exchange was not received absolutely as a payment of then existing demands, they cannot be deemed innocent holders for a valuable consideration, and as having received it in the usual course of business, and protected against its infirmities.</p> <p>4. There was proof conducing to show that the bill was misappropriated, aud not used for the purposes of its indorsement; and the jury, instead of the instruction given, should have been told that, if it was indorsed for other purposes, and then plaintiffs procured it as collateral for liabilities to them and not in discharge thereof, that this was not an innocent obtainment of it in due course of business and for a valuable consideration, and that they should find against the plaintiffs; but that, if they believed from the evidence that the plaintiffs received the bill as an absolute discharge of that much of their present demands, then this would be an innocent holding, in due course of business, upon a valuable consideration, and the indorsers responsible, no matter what was the original objects of their indorsement.</p>

<p>CASE 33 — INDICTMENT—</p> <p>APPEAL PROM BRECKINRIDSE CIRCUIT COURT.</p> <p>CITED—</p> <p>1 Bishop, sec. 149; 1 Russell on Crimes, pp. 118, 474.</p> <p>Criminal Code, sec. 241.</p> <p>CITED—</p> <p>Criminal Code, sec., 335.</p>

<p>An administrator de bonis non is entilled to the possession of the unadministered assets of bis intestate; but, appealing to equity against the heirs and administrator of the firs* administrator of his intestate, and also against the heirs of his intestate, for possession of uncollected notes belonging to the estate of his intestate. — it appearing that more than five years had elapsed since his intestate’s death, and that the notes were not necessary to pay his debts — to avoid circuity and delay, and save the distributees from unnecessary commissions, the circuit court did not err by dismissing his petition and decreeing a distribution of the estate without permitting it to pass through the hands of the administrator de bonis non.</p>

<p>CASH 35 — INDICTMENT—</p> <p>APPEAL PROM OWES CIRCUIT COURT.</p> <p>CITED—</p> <p>Wharton’s Grim. Law, 4ih ed., 447, 448, 449, 452, 387.</p> <p>1 Hale, 431; East. P. G., 261.</p> <p>1 Bishop’s Grim. Law, secs. 414, 415, 416.</p> <p>Burrill on Gir. Ev.,pp. 181, 734, 735, 736, 737.</p> <p>1 Duvall, 228; Smith vs. Commonwealth.</p> <p>Criminal Code, secs. 236, 237.</p> <p>CITED—</p> <p>1 Russell on Crimes, p. 637; Roscoe’s Grim. Ev., 687.</p> <p>2 Duvall, 164; Galliher vs. Commonwealth.</p>

<p>1. A bond executed under section 242, Civil Code, undertaking to perform the judgment, discharges the attachment and renders all inquiry into the liability of the property attached or its value, needless; but the execution of such a bond by a claimant of the attached property, does not make him a party to the action.</p> <p>2. The claimant of attached property must present bis petition stating the nature of his claim. This petition is not required to be answered by the plaintiff in the attachment, nor any one else, but it is to he regarded as traversed; and this may be done after the issues between the original parties are entirely settled, and previous to the final disposition of the fund; or, if the claimant presents his petition before the issues between the original parties are settled, his claim may be investigated without awaiting the trial between them.</p> <p>3. The claimant of attached property, who executed bond under section 242, Civil Code, undertaking to perform the judgment, is liable on the bond, although the prior lien preferred by him on the property was adjudged in his favor. 4. On a bond executed by a claimant of attached property, undertaking to perform the judgment, it was error in the circuit court to render judgment against such claimant enforcing the bond without rule or notice. Although those whose names appear to the bond cannot dispute the liability or value of the property, yet they.may plead non est factum or idiotey, lunacy, or other incapacity, such os'feme covert, &c., and hence the necessity of some warning that judgment will be rendered • unless some legal cause against it should be shown.</p>

<p>CASE 37 — PETITION ORDINARY —</p> <p>APPEAL MOM MUHLENBÜRG CIRCUIT COURT.</p> <p>CITED—</p> <p>2 Bibb, 602; Moore vs. Tuberville.</p> <p>2 Iredell, 32; Saunders vs. Hatterman.</p> <p>1 Dev., 69; Farrer vs. Alston.</p> <p>34 Penn., 365 ; Faltón vs. Hood.</p> <p>2 Kent's Corn., p. 485.</p> <p>2 Parsons on Contracts, p. 778.</p> <p>1 Hilliard on Torts, p. 17.</p> <p>1 Dana, 611; Marshall vs. Peck.</p> <p>2 Duvall, 156; Warren vs. Baker.</p> <p>15 B. Mon., 517. .</p>

<p>1. In preparing cases in the inferior courts, counsel and parties too often seem to forget that the record, as they present it, is the only guide to the court of appeals to the facts, and, consequently, they too often fail to exhibit in the record needful facts, only because they are familiar to themselves out of the record. This prevalent blunder is frequently fatal.</p> <p>2. A court of equity has jurisdiction, quia timet, to enjoin from cutting . . timber, or otherwise intruding, on the strip of land claimed by each party.</p>

<p>CASE 39 — PETITION EQUITY —</p> <p>APPEAL PROM BOYD CIRCUIT COURT.</p> <p>CITED—</p> <p>2 Bright on Husband and Wife, secs. 10, 11, p. 224.</p> <p>1 Jarman on Wills, pp. 27, a, b, c, d, e.</p> <p>Rev. Siat., “ Wills,” secs. 2, 4, 29,2 Stant., 457 and 466.</p> <p>CITED—</p> <p>18 B. Mon., 259; Hughey vs. Sidwell’s heirs.</p> <p>2 Metcalfe, 342; Henderson vs. Hayne.</p> <p>Revised Stat., chap. 106, secs. 29 and 58, 2 Stant., 466, 468.</p> <p>1 Monroe, 155; Smith vs. Morcman.</p> <p>Williams on Executors, 2 Am. ed., 368-9.</p> <p>1 Paige, J76; Clark vs. Fisher.</p> <p>4 Mon., 422; Payne’s Will.</p> <p>5 Littcll, 274; Wells’s Will. '</p> <p>9 Dana, 41; King vs. Bullock.</p> <p>8 B. Mon., 348; Singleton’s Will.</p> <p>10 B. Mon., 474; Tibbatts vs. Berry.</p>

<p>1. In case of abandonment of his family by the husband who is a father, the wife’s right, she being a mother, to prosecute an action, using his ' name, does not depend on his consent, but it is a legal right secured to her in such eases, free from and beyond tjie control of the husband. (Sec. 51, Civil Code).</p> <p>2. Whilst it is more strictly conformable to the rules of pleading, as required by section 51 of the Civil Code, that the husband should be a party, yet, when he has been made a party, and then dismissed from the record at the defendant’s instance, they are precluded from afterwards setting up this, their own error. The judgment dismissing her suit for a horse, saddle, and bridle, is reversed, with directions to the court below to proceed to trial as the issues are now made up, unless she should move, in a reasonable time, to restore her bus-band’s name as a party plaintiff with her, in which case she should be allowed to do so.</p>

<p>1. A foreign court cannot, by its judgment or decree, pass the title to land situate in another country; neither can it bind such land by a judgment or decree, that the land, in default of the defendants conveying it, shall be conveyed by deed of its own officers to the plaintiffs. Such a conveyance made by its officers would be treated in this country, where the land is situated, as a mere nullity.</p> <p>2. William J. Lodge died intestate in Indiana, leaving a large estate, real and personal, therein, and also two tracts of land in Trimble county, Kentucky. He left as his heirs-at-law three surviving children, who were of full age, and the children of his daughter, Mrs. McKee, who were minors. His heirs were all residents of Indiana, except his . daughter, Mrs. Page, who resided upon the lands in Trimble county, Kentucky. In the partition and distribution of the estate of the intestate by the Jefferson circuit court, in the State of Indiana, in a suit to which all the heirs were parties, the Kentucky lands were allotted and set apart to Mrs. Page; and, in pursuance to the judgment of the court, these lands were conveyed to her by deed duly executed by the other two adult heirs and by the guardian of the minor heirs. Thereafter, the minor heirs, together with their father, became residents of the city of Louisville, Kentucky, and thereupon Mrs. Page and her husband instituted suit in the Louisville chancery court against said minor heirs to perfect her title to the Trimble county, Kentucky, lands. This suit was dismissed by the chancellor. Held — That the Louisville chancery court had jurisdiction, and should have proceeded to a final adjudication, and by proper orders directed a conveyance from the minor defendants, arid perfected such order by proper deeds of quit claim.</p> <p>3. As the Indiana court had jurisdiction of that portion of the estate, real and personal, therein, and of the parlies, and as Mrs. Page brought the suit, the judgment of partition and distribution of the Indiana court is conclusive upon her as to her interest in the Indiana real estate and personalty; then her suit in the Louisville chancery court is by no means for a partition; for, as to this, she is already concluded; but it is what it purports to be, a personal suit against the minor heirs to compel them to surrender to her, their legal title to one fourth of the Kentucky lands, in pursuance of the Indiana judgment, they having received, by proceedings in the Indiana court, their full share of their ancestor’s estate; and this foreign, judgment is at least prima facie good and valid as to the partition, though not good as to the conveyance, and the Kentucky courts should enforce the equities growing out of it, at least until it is successfully assailed.</p>

<p>1. The fee bill for half commission, for levying the fi. fa., suspended by the creditor’s order, and so returned, is regulated by the 1th article, chapter 38, Revised Statutes, 1 Stanton, 522. But the fee bill for selling the land under venditioni exponas, after act of February 4, 1865 [Myers' Sup., 468), is regulated by that act.</p> <p>2. There being only one levy and one sale, the sheriff was entitled to no more than if the sale had been under the fi. fa., instead of the vend, ex. The levy and sale constituted but one entire official act; and as there could have been no sale without a levy, the sheriff had no right to charge for each of these constituent acts; and, consequently, if he charged full commission on the sale under the vend, ex., he had no right to charge half commission for the levy of the fi. fa., suspended by plaintiff’s order.</p> <p>3. The sheriff's right to full commission on the sale is not affected by the creditor’s subsequent quashal of the sale directed by himself.</p>

<p>1. The county judge and justices have legal authority to employ medical aid for the relief of poor persons afflicted with small-pox, without regard to the color of such poor persons.</p> <p>2. A mandamus from the circuit court is the proper remedy to compel the county court to levy a county tax to pay a bill for medical services rendered a poor negro woman afflicted, with small-pox, under the employment of the county judge.</p>

<p>1. Though the discretion conferred by law on the county courts to grant or refuse license to sell spirituous liquors, &c., is broad, it should not be exercised in an arbitrary and unlimited manner; and when such an exercise of power is manifested, the Court of Appeals will interpose.</p> <p>2. If the evidence fails to show that there is a necessity for the grant, or that travelers will be put to inconvenience, by the refusal of the county court, to grant the privilege of selling spirituous liquors, &c , the court of appeals will not determine that such refusal was an abuse of the discretion conferred by law upon county courts.</p>

<p>1. The railroad company is not responsible for the value of a mule, which passed through a gap in the fence near the railway, jumped on the track, only about fifty yards ahead of the locomotive, and was killed by an inevitable collision, there being no proof of negligence, unskillfulness, defective machinery, or recklessness.</p> <p>2. Had the mule been on the railroad track far enough ahead to enable the-engineer, by proper means, to stop the locomotive before it reached the animal, or to have enabled him to retard the train’s progress until) the mule could have been driven out of all danger of collision, it was j his duty to see and save the male, and, for failing to do so, the railroad/ company would have been responsible for its value.</p>

<p>1. The sale of a slaye in 1864 by Gaither, and the purchase by Miller, for the sole purpose of putting such slave in the Federal army as a substitute for Miller, who had been drafted, implied a warranty of his suitableness to the end contemplated by both parties to the contract, and oral testimony of facts conducing to establish such a warranty was not inconsistent with the bill of sale, merely transferring the title, without expressing a warranty. All such implied warranties may bo proved by unwritten testimony.</p> <p>2. Neither fraud, without rescission by the return or tender of the slave to the vendor, nor warranty, can entitle the vendee to bar the action for the price.</p> <p>3. According to the modern common law recognized by our Code of Practice, and late adjudications by this court, the vendee of personal property, is entitled by plea to the action for the price, to a recoupment of the damages resulting to him from the failure of the consideration. (2 Marshall, 86; 4th Littell, 157; 6 B. Mon., 528; 12 B. Mon., 465.)</p> <p>4. To recoup the damages resulting to the vendee of personal property, from the failure of consideration by plea to the action for the price, saves costs and delays, and prevents vexatious multiplicity and uncertainty; and this is the policy and principle of the doctrine, as recognized in this court and elsewhere, and which applies as well to this form of action as to an action of assumpsit; and, consequently, the evidence entitled the vendee to some credit on the note sued on; and if, as alleged, the slave was worth nothing as a slave, there may have been an, entire failure of consideration without returning or otherwise accounting for him.</p>

<p>CASE 47 — PETITION EQUITY —</p> <p>APPEAL FROM NELSON CIRCUIT COURT.</p> <p>CITED—</p> <p>Revised Statutes, 1 Stant.', 458.</p> <p>7 B. Mon., 445; Co. Litt., 300.</p> <p>1 Roper on Prop., 167; 2 Roper, 163.</p> <p>3 American Law Register, 575. *</p> <p>4 Met., 84-101.</p> <p>CITED—</p> <p>4 Met., 84; 10 Ohio, 371.</p>

<p>1.. $705 58. Twelve months after date, we promise to pay Mrs. Agnes 0. Reed seven hundred and five dollars and fifty-eight cents. Witness our hands, this 22d February, 1857. Jno. P. Billingsly,</p> <p>Z. Billingsly.</p> <p>Suit was brought by D. 0. Day, assignee of the foregoing note, more than seven years after the cause of action accrued. Z. Billingsly insisted that he was only a surety, and plead the statute of limitations. On these issues the jury found a verdict in his favor, and judgment was rendered accordingly by the circuit court — which judgment is affirmed. It was not necessary for Z. Billingsly to allege or prove . that the assignee had notice that, contrary to the apparent obligation, he was not a principal, but was surety only. The statute of assignments allows the same defense against an assignee as against his assignor.</p> <p>2. The assignee, knowing the statute of limitations, forbears to sue at the peril of releasing any party to the note who may be able to prove that he was, in fact, surety only; and, before he incurs this hazard, it is his business to inquire whether any of the obligors is surety only. It is not the duty of the surety to know of the assignment.</p> <p>3. $600. Trenton, Ky., Nov. 24th, 1856.</p> <p>Four months after date, we, or either of us, promise to pay, to the order of D. 0. Day, six hundred dollars, negotiable and payable at the office of the State Bank of Tennessee, at Clarksville, for value received. Jno. P. Billingsly,</p> <p>Z. Billingsly.</p> <p>To the suit of D. 0. Day, on the foregoing note, the defendant, Z. Billingsly, plead that the plaintiff, D. 0. Day, and Jno. P. Billingsly, being partners in merchandise, drew said note for the purpose of borrowing money, and that, as surety only, he signed it merely for their accommodation, and for no other consideration. Held, — That there was no binding consideration in this note, as between the plaintiff and this defendant, and that the judgment in favor of the defendant was right.</p>

<p>1. On the dismissalof an appeal suspending the execution of the judg ment of the circuit court for a fine, ten per cent, damages will be awarded against the appellant.</p> <p>2. Unless the appellant prosecutes his appeal successfully, the practical result is an affirmance, which, in civil cases, as provided in section 904, Civil Code, renders him liable to ten per cent, damages on the • amount of the superseded judgment; and in penal cases, as provided in section 352, Criminal Code, he renders himself liable to ten per cent, damages on the amount of the suspended fine.</p>

<p>The circuit court erred in rescinding the contract when an exhibition of a perfect title was required, and a rescission was not asked for. The court ought to have held the case up for a further experiment as to title, and ought also to have required the vendors to show their title, and have given time, if necessary, for perfecting it; and, if they could not present a sufficient title, after such probation, the vendee should elect to take their conveyance with warranty or rescind the contract.</p>

<p>1. An appeal is allowed directly to the court of appeals from the judgment of a county court, sitting as a court of claims. (Oivil Code, sections 15, 16.)</p> <p>2. The circuit court has no jurisdiction of an appeal from the judgment of a county court, sitting as a court of claims. ( Oivil Code, sections 15, 16.)</p> <p>3. The owner or possessor of land is required by law to pay the tax assessed on the value, of such land, without reference to whether he owned the fee or only a life estate.</p> <p>4. The owner of a life estate in land, being in possession, is required to pay the tax assessed on the fair value of such land. (Section 2, article 5, chapter 83, Revised Statutes, 2 Stanton, 250.)</p>

<p>CASE 52 — PETITION ORDINARY —</p> <p>APPEAL PROM ANDERSON CIRCUIT COURT.</p> <p>CITED—</p> <p>Session Acts 1854,.page 348 of 2d vol.</p>

<p>CASE 53 — PETITION EQÜITYY —</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>CITED—</p> <p>1 Met., 649 ; Gill vs. Johnson.-</p> <p>4 Met., 342; Allen vs. Brown.</p> <p>1 Washburn on Real Property, p. 325.</p> <p>CITED-</p> <p>4 /. J. M., 307; Wood vs. Berthard. ,</p> <p>'Civil Code, sec. 445.</p> <p>14 B. Mon., 270 ; Payne vs. Witherspoon.</p> <p>4 Met., 343; Allen vs. Brown.</p>

<p>1. The answer not controverting the allegations as to the want of title in Wilson and the owner’s recaption of the stolen buggy, there was no necessity for a judicial eviction.</p> <p>2. An auctioneer’s assurance to bidders that “ he knew Wilson well (who was having tjie buggy sold), and he was all right, and he (auctioneer) would warrant that his title was good,’’ amounts tb a warranty. The buggy having been stolen by Wilson, such assurances by the auctioneer were constructively, if not actually, fraudulent. They might be deemed actually fraudulent, as made to increase his fees, which was a valuable consideration to him for either his warranty or misrepresentation. ,</p> <p>3. False affirmations, tinged with actual fraud malo animo, are excepted from the operation of the statute ( Warren vs. Barker S; Co., 2 Duvall,' 156), and should always be actionable without written evidence.</p>

<p>1. The abolition of slavery, by the action of the government, was a contingency, like that of the death or escape of the slave, to be risked by the purchaser.</p> <p>2. An order for part of the amount of a judgment is not an assignment of the judgment, but evidence of an indebtedness which might be enforced on refusal to accept or pay the order.</p>

<p>CASE 56 — PETITION EQUITY —</p> <p>APPEAL FROM MADISON CIRCUIT COURT.</p> <p>CITED—</p> <p>4 Littell, 289-317; 5 Mon., 287.</p> <p>2 Dana, 99; & B. Mon., 71.</p> <p>8 B. Mon., 468; 4 Bibb, 303.</p> <p>3 B. Mon., 50; Burle vs. Chrisman.</p> <p>4 B. Mon., 413 ; Dawson vs. Mitchell.</p> <p>3 B. Mon., 452; Broadus vs. King.</p> <p>10 B. Mon., 281.</p> <p>CITED—</p> <p>3 B. Mon., 50; Burk vs. Chrisman.</p> <p>CITED—</p> <p>7 Mon., 574; Hanson vs. Cowan.</p> <p>2 J. J. M., 38; Harlan vs. Wingate’s adm’r.</p> <p>4 J. J. M., 3 ; Castleman vs. Holmes.</p> <p>1 Dana, 53; Letcher vs. Bank of Commonwealth.</p> <p>CITED—</p> <p>Civil Code, sec. 406.</p>

<p>CASE 57 — PETITION EQUITY —</p> <p>APPEAL EEOM GRANT CIRCUIT COURT.</p> <p>CITED—</p> <p>Story’s Equity Pleadings, sec. 241.</p> <p>14 B. Mon., 85 ; Hill, é¡-c., vs. Barnett.</p> <p>3 Marshall, 418 ; Burch vs. Young.</p> <p>Civil Code, sec. 149, and notes.</p> <p>CITED—</p> <p>Myers’ Code, notes on sec. 406.</p>

<p>1. “The bank may deal in the loaning of money, exchange, promissory notes, and other evidences of debt; take personal and other securities for the payment thereof, and dispose of the latter as may be agreed upon, in all respects as natural persons may do under the common law.” The above enactment in the charter of the Falls City Tobacco Bank, restores to said bank the common law right, without the intervention of a court of equity, to sell mortgaged property, in execution of a power given in the mortgage, and so far, abrogates the Kentucky statute of 1820, requiring a decretal sale.</p> <p>2. The Falls City Tobacco Bank is authorized by its charter, to loan money on the security of a mortgage of real estate, reserving a power to sell and convey the title in default of payment, unencumbered by any equity of redemption, and undelayed by any suit for foreclosure; and sales and conveyances so made by said bank, in pursuance of the power reserved in the mortgage, are held to be valid.</p>

<p>1. A public notice given by a common carrier, brought home to the knowledge of the shipper, enters into the'contract of affreightment, so far as the carrier has the right to impose such terms, either by express or implied contract, not, however, inconsistent with the express contract; but such notice will be considered in construing the contract when its terms do not conflict with the express undertaking.</p> <p>2. A common carrier, by notices, cannot exempt himself from losses by the malfeasance, misfeasance, or gross negligence of himself or his servants. If, therefore, he or they convert the goods to a wrong use, or make a wrong delivery to a person not entitled to them, or are guilty of gross negligence in the carriage or care of them, the loss must be borne by the carrier. [Story on Bailments, sec. 570.)</p> <p>3. In cases of notices, the carrier is liable for losses and injuries occasioned, not only by gross negligence, but by ordinary negligence, or, in other words, the carrier is hound to ordinary diligence. [Story on Bailments, see, 571.)</p> <p>4. “ Valued under fifty dollars, unless otherwise herein stated." The foregoing notice or stipulation is embodied in the receipt or bill of lading which the Adams Express Company gave for eight boxes of boots and shoes, which said company undertook to carry from Louisville to Russell-ville. Held — The Express Company could not exonerate itself from liability for gross, or even ordinary, neglect, by any such stipulation, even if it should be considered that the words in the receipt amounted to such a-covenant; but to allow such a limitation, in cases of gross neglect and conversion, would recognize their right to convert other people's property to their own use at their own price.</p>

<p>1. When a defect of parties, either plaintiffs or defendants, appears on the face of the petition, this is cause for demurrer. (Civil Code, sec. 120, subdiv. 4.) But if the defect of parties does not appear on the face of the petition, objection may be taken by answer (sec. 123), and if not taken either way, it shall be deemed as waived.</p> <p>2. Although the evidence establishes that John and Wm. Phillips were jointly interested in the cattle sold by Jesse Phillips to Justice, yet they were in his possession, and the contract was with him and the notes executed to him, and though-dris joint owners were proper parties, yet they were not essential parties, which required the intervention of the court to have them brought in as provided in section 440, Civil Code.</p>

<p>CASE 62 — PETITION ORDINARY —</p> <p>APPEAL FROM MORSAS CIRCUIT COURT.</p> <p>CITED—</p> <p>1 Mon., 96; Ferguson vs. Terry.</p> <p>2 B. Mon., 357 ; Christopher vs. Covington £$• Smith.</p> <p>2 Dana, 377'; Johnson vs. Castleman, fyc.</p> <p>Hallcck’s International Law, chap. 14, sec. 31, and chap. 16, sec. 8.</p> <p>1 Kent’s Commentaries, p. 94.</p> <p>2 Duvall, 496; Witherspoon vs. Farmers’ Bank.</p> <p>Vattell, Droit des Gens, lio 3, chap. 9, sec. 13.</p> <p>2 Granch, 17; Little and others vs. Bareme and others.</p> <p>13 Howard, 113 ; Mitchell vs. Harmony. ■</p> <p>2 Duvall, 502; Christian Co. Ct. vs. Rankin ly Tharp.</p> <p>CITED—</p> <p>2 Duvall, 496; Witherspoon vs. Farmers’ Bank.</p>

<p>An administrator of his creditor’s estate who returns upon his inventory his own note, should be held as having collected it, especially when he had property liable to execution sufficient to pay the debt; he must be held as having received the money, and his surety liable, as müch as if it had been due from some one else and he had collected it.</p>

<p>CASE 64 — PETITION ORDINARY —</p> <p>APPEAL PROM UNION CIRCUIT COURT.</p> <p>CITED—</p> <p>5 Dana, 110, 113 ; Breckinridge vs. Tyler.</p> <p>7 B. Mon., 591; Whitmore vs. Goddy.</p> <p>Rev. Stat., sec. 8, 2 Stanton, 398.</p> <p>CITED—</p> <p>Rev. Stat., chap. 97, sec. 8.</p> <p>12 B. Mon., 397; Brandenburg vs. Flynn's adm'r.</p> <p>2 Vernon, 603 ; Parsons vs. Briddock.</p> <p>5 Dana, 244; Patterson vs. Pope.</p> <p>2 B. Mon., 305; Kouns vs. Bank of Kentucky.</p> <p>12 B. Mon., 563-578 ; Bohannon vs. Com.bs.</p> <p>4 Met., 247; Havens, SfC., vs. Foudry, fyc.</p> <p>1 Met., 252; Hoskins vs. Parsons.</p>

<p>1. An account for necessaries furnished by a merchant to the family of a married woman, while her husband was a member of the family, imposed no legal obligation on her or her inherited estate. Her general estate was not liable for the goods furnished, unless she and her husband had recognized the account by a writing, signed by both of them. (Revised Statutes, article 2, section 1, chapter 41.)</p> <p>2. A note executed by the son of an adjudged lunatic, in the assumed character of her agent, is void.</p>

<p>1. 'A claimant of attached property, who executes bond and,retains posswsion of the property, has legal notice that a suit is pending to subject the property; and, if he remains quiescent, as to his claim, until, by judgment, the property is subjected to the attachment, he shall not be beard in a defense to the bond, nor on a suit for the recovery of the property or the money for which it was sold. (Civil Code, secs. 235, 237, 257.)</p> <p>2. Voluntary gifts, without valuable consideration, ,are void a3 to pre-existing creditors. (Revised Statutes, sec. 2, chap. 40; Lowry vs. Fisher, 2 Bush, 70.)</p>

<p>CASE 67 — PETITION EQUITY —</p> <p>APPEAL PROM KENTON CIRCUIT COURT.</p>

<p>CASE 68 — PETITION EQUITY —</p> <p>APPEAL FROM MEADE CIRCUIT COURT.</p> <p>CITED—</p> <p>1 Duvall, 125; Francis vs. Smith.</p> <p>Civil Code, section 125.</p>

<p>An attachment was discharged by the circuit court and reinstated by one of the judges of the court of appeals. The records of the suit having been burned, the plaintiff was required to supply the burnt records or submit to a nonsuit. He responded that he could not supply a complete record, and thereupon his petition was dismissed and his attachment discharged without prejudice. In a suit for damages on the attachment bond, the order of dismission and discharge, without prejudice, was, under the circumstances which superinduced it, no evidence that the attachment was wrongful, or even hurtful, but rather implied the contrary; and in this action, no other proof being offered by him, the plaintiff was entitled to no more than legal costs, taxable on the dis-mission of the attachment suit.</p>

<p>To prevent the statute of limitations from running, a suit must be brought and prosecuted in good faith; and, if the time constituting the bar is permitted to elapse between the time of suing out one process until another, the mere bringing the suit will not prevent the statute from running, and is no legal reason why the bar should be disallowed.</p>

<p>1. On plaintiff’s motion to strike defendant’s amended answer from the record, because not verified, the defendant offered to swear to the same; it was error in the circuit court to refuse to allow him to do so, and in excluding the pleading- — the amended answer pleaded facts constituting a bar to the action.</p> <p>2. Objection to an answer, because not verified, should be made by rule against defendant to swear to the same; and, on his failure to do so, to have it stricken from the record.</p>

<p>CASE T2 — PETITION EQUITY —</p> <p>APPEAL FROM CAMPBELL CIRCUIT COURT.</p> <p>CITED—</p> <p>Revised Statutes, 1 Stanton, 380, and 2 Stanton, 20, 21, and note.</p> <p>15 B. Monroe, 59; Wilrnore vs. Wilmore.</p> <p>Civil Code, sec. 461.</p> <p>Rev. Stat., sec. 2, subsecs. 3, 5, 2 Stanton, 4.</p> <p>8 B. Mon., 116 ; Donelly vs. Donelly's heirs.</p> <p>12 Howard, 472 ; Gaines'vs. Relf.</p> <p>Bishop, “Divorce, Marriage,” secs. 563, 592, 611, and cases cited.</p> <p>2 B. Mon.; Logan vs. Logan,</p> <p>Bishop, M. and D., secs. 205, 206.</p> <p>6 Howard, 550-2 ; Patterson vs. Gaines.</p> <p>CITED—</p> <p>Rev. Stat., chap. 47, art. 3, sec. 4.</p> <p>Rev. Stat., chap. 28, art. 4, sec. 9.</p> <p>■ 12 B. Mon., 287 ; McDonald vs. Fleming.</p>

<p>1. The Secretary of State certified to the State Auditor, without itemizing the account, the entire cost of two hundred and thirty-five copies of the Adjutant General’s Report, 1861-6, which were furnished the State, and received by the Secretary as directed by act of March 2, 1867. As said act does not require the Secretary to itemize the account, the Secretary’s certificate, until shown to be otherwise, must be presumed to be right and legal, and as presenting, prima facie, a cause of action against the Auditor for refusing to issue his warrant- upon the Treasurer. The circuit court erred in dismissing the petition on demurrer.</p> <p>2. An action for mandamus against the State Auditor for refusing to issue his warrant upon the Treasurer is substantially a controversy between the plaintiff and the State. The fact that the Auditor has gone out of office and his successor has qualified presents no defense either in bar or abatement. The change in the incumbent should be suggested on the records by proper orders, and the action should progress against the successor, and will equally bind him, whether he was the incumbent at the commencement of the proceedings or subsequently appointed.</p> <p>3.’ Under the act of March 2, 1867, directing the Secretary of State to receive two hundred and thirty-five additional copies of the Adjutant General’s Report, &c., the Adjutant General is entitled to the same compensation that the Public Printer and Binder would have been entitled to for such additional copies, and ten per cent, additional for extra expenses.</p>

<p>A-widow, where there are no infant children residing with her, and no adult or infant children not residing with her, cannot be held responsible for, or required to distribute, the property exempt from distribution and set apart to her under the several statutes. — The title of the property so set apart vests in the widow. (Section 11, chapter 30, Revised Statutes, 1 Stanton, 423.)</p>

<p>CASE 75 — PETITION ORDINARY —</p> <p>APPEAL PROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>CITED—</p> <p>Revised Statutes, chap. 91, art. 1, secs. 31-2-3.</p> <p>Civil Code, secs. 201, 202.</p> <p>14 B. M., 22; Ashby vs. Gill.</p> <p>3 Met., 44 ; Pierce vs. Patridge.</p> <p>9 Miss., 41; Douglas vs-. Baker.</p> <p>9 Miss., 794 ; State vs. Hamilton.</p> <p>18 Vat., 227 ; Goodrich vs. Starr.</p> <p>4 Sneed, 577 ; McKinney vs. Craig.</p> <p>CITED—</p> <p>Civil Code, sec. 72.</p> <p>14 B. M., 22; Ashby vs. GUI.</p> <p>1 Tenn. R., 191 ; Robertson vs. Douglas.</p> <p>Dalton on Sheriffs, p. 116 ; 1 Bing., 66.</p> <p>24 Maine R., 158; Wright vs. Keith.</p> <p>1 Mils, df Welsby, 713 ; Brown vs. Jarvis.</p>

<p>1. When the terms of a written contract are ambiguous, the subject-matter and presumed object of the parties are admissible and pertinent considerations, and the words employed should, altogether, be harmonized, as far as possible, and interpreted, consistently with common sense.</p> <p>2. A contract “for the sale of four hundred hogs, averaging three hundred pounds, the smallest hog not weighing less than two hundred and thirty pounds,” is construed as fixing the minimum average and leaving the maximum unlimited, except by convenience and reasonable practicability; and such contract is complied with, by the vend- or, by a tender of four hundred hogs, averaging three hundred and twenty pounds, at the time and place agreed upon; and, for failing to receive them, the vendees are held to be liable for the difference between the contract price and the price at which the hogs were sold, three days afterwards, in the same vicinity, and interest thereon, it appearing they were sold for their full market value.</p> <p>3. An award which transcended the submission, and was repudiated by both parties, cannot afterwards be made available by one party against the other.</p>

<p>CASE 77 — PETITION ORDINARY —</p> <p>APPEAL FROM METCALFE CIRCUIT COURT.</p> <p>CITED—</p> <p>Secs. 5, 7, 8, art. 6, Common School Laws; Myers' Sup., 452.</p> <p>CITED—</p> <p>1 Met., 71; 13 B. Mon., 213 ; 4 Met., 354.</p> <p>6 B. Mon., 619.</p>

<p>1. Section 11, chapter 97, Revised Statutes, providing for the release of sureties in bonds having the force of a judgment, when the plaintiff, at any time for the space of a year, fails to issue execution, &c., applies only, to bonds to beneficial creditors, ivho alone may control the collection by execution, and have the right to either forbear or enforce the collection.</p> <p>2. On a bond executed pendente lite in an attachment suit, for property sold by the sheriff, payable to the sheriff, for such yses as may hereafter be adjudged, by the court," the surety is not released by forbearance to issue execution on the bond for the space of a year after it became due. The party entitled to the money had not been ascertained. There was no creditor or plaintiff who could issue'execution, and none, therefore, whose forbearance could release the surety in the bond. The court could enforce the bond either by rule or execution.</p>

<p>1. In consolidated actions — one brought to set aside the sale of infant's land, for defects and errors in the proceedings, on the petition of the guardian, under the provisions of chapter 86 of the Revised Statutes; the other brought by the purchaser of the land to have the sale confirmed, under the provisions of the act of February 17, 1866 (Myers’ Supplement, 752) — it appearing from the proof that the sale was fair, and that the land sold for its full value, the judgment of the circuit court merely dismissing the petition to set the sale aside was informal. The judgment ought to have confirmed the original judgment or decree and sale. But such judgment of dismissal is a sufficient bar against the parties, or any one claiihiug under them.</p> <p>2. The act of February 17, 1866 [Myers' Supplement, 752), providing, on the petition of the purchaser, for the confirmation of sales of infant s real estate, is held to be constitutional.</p>

<p>1. A sand-bar in the Ohio river is held to be private property, and the owner thereof may maintain an action in the nature of an action of trespass for entering upon and removing sand therefrom.</p> <p>2. The title of |he owner of land binding on the Ohio river, if not ex- , eluded by the terms of the grant under which he holds, extends to the middle thread of the main channel of the river, and all accretions belong to the riparian owner, as an incident to his title. This title and these rights are held subordinate to the free and unobstructed public rights of navigation and commerce.</p> <p>3. Under a Virginia patent, issued before the separation of Kentucky from Virginia, the rights of the patentee vested under the laws of Virginia; and, by the compact between Virginia and Kentucky, the rights and interests of lands so derived are to be determined by the Virginia laws.</p> <p>4. However the courts of the United States may regard navigation and commerce as the controlling elements in testing their admiralty jurisdiction,'and founding this, not upon tide water, but navigation and commerce, yet, in testing the rights of riparian’ owners, they recognize the common law distinction between tide water and fresh water in its fullest, broadest sense.,</p> <p>5. The English common law recognized the land granted on a fresh water river as extending to the thread of the main channel, unless the words of the grant excluded this, whilst the rule was different on all these rivers, or that part of the river, subject to the ebb and flow of the sea.</p>

<p>1. G. loaned M. corn and pork, which M. verbally agreed to return at the expiration of three years. No suit can be maintained to enforce this contract; but a suit can be maintained to enforce the implied promise, created by law, to pay for the consideration received — neither the letter nor the spirit of the statute prohibits a suit to recover on this implied obligation of the law.</p> <p>2. Verbal contracts, not to be performed within a year, are not declared by the statute to be void, but only that suit for their enforcement shall not be maintained.</p> <p>3. In verbal contracts, not to be performed within a year, there is, under the statute against frauds and perjuries, a distinction between contracts executed in part or wholly, and one to be wholly executed by both parties. (Roberts vs. Tennell, 3 B. 3Ion., 252.) Whilst the implied prpmise, created by law, to pay for the consideration received in such contracts can be enforced, no suit can be maintained to enforce the contract itself. Yet the contract is available in behalf of the defendant, and be may protect himself against suit until the expiration of the time, and can use it for the purpose of reducing tho amount of his liability under the implied promise created by law.</p>

<p>1. Notes, mortgages, and deeds, procured to be executed without any adequate consideration, by a man near eighty years old, much, enfeebled in body and mind, and rendered by his circumstances, and mental and physical condition, incapable of protecting himself from fraud and ' imposition, are held to be invalid and set aside.</p> <p>2. For money advanced for necessaries, and to pay off an incumbrance on his real estate, for a person mentally incompetent to contract, the party making the advancements is entitled to a charge against his estate, and to be subrogated to the benefit of the incumbrance which he discharged.</p> <p>3. The estates of lunatics, like infants and married women, are chargeable, as for necessaries, for whatever may be furnished them, which is reasonably necessary and beneficial to them. (Pearl vs. McDonald, 3 J. J. 31., 662; 1 Parsons on Contracts, 312.)</p>

<p>1. Exceptions to depositions as incompetent evidence, which do not appear to have been acted on by the court below, will be regarded as waived by the court of appeals. ( Conn vs. Simms, 3 Met., 39L)</p> <p>2. An attachment, sued out upon the ground that the defendant so con* cealed himself that a summons could not be served on him, should be sustained, provided it appears that the defendant did, in fact, either secrete himself at his place of abode, or depart therefrom to some other place, with the intention to delay or prevent his creditors from enforcing their demands, in the ordinary modes prescribed by law, by avoiding the service of a summons. [Dunn, $•<;., vs. Salter, 1 Duvall, 345.) Por a review of the evidence, showing its sufficiency to sustain the attachment on the above ground, see opinion.</p> <p>3. W. and D. purchased a lot of mules, &c., for the southern market, and iu part payment therefor, executed a note, with L. as their security. Afterwards, without the knowledge or assent of D., W. and L. entered into a writing, by which they mutually agreed to share and divide equally the profits or losses of W. in the adventure. This agreement did not make L. liable or bind him as one of the principals on the note. (Duncan vs. Lewis, 1 Duvall, 183.)</p>

<p>1. An insolvent debtor, by agreement with some of his creditors, left the county of his residence, and returned again secretly, so as to enable them to have process served on him by a special deputy, appointed at their instance; and, when this was done, he again left, and remained out of his county, to prevent other creditors from having process executed on him, so as to prevent them from obtaining judgments against him at the approaching- term of the circuit court, which commenced March 17, 1862. Judgments were obtained by the creditors who obtained service as above. They caused executions to issue and be levied on the debtor’s land, which was sold to satisfy their executions, and purchased by one of them. Held — That the procuring of these judgments, executions, and the sale, by the means resorted to, was, essentially, an assignment within the purview' of the statute of 1856. (See Letcher, fíe., vs. Siagner, §c., 2 Duvall, 424, and also Act of March 8, 1862, Myers' Sup., 239.)</p> <p>%. As no deed was made and recorded, the possession of the land not delivered, and executions not returned, at the time of the institution of the action to set aside tho sale, and subject the property to the benefit of all the creditors, the six months’ time provided in the act of 1856, so far from having expired, had not commenced to run.</p>

<p>1. The assured, after he has sustained a loss, must, substantially, comply with the conditions set forth in his policy before a right of action accrues to him for losses, unless the right to insist upon such preliminary conditions be waived. (Angelí on Fire Ins., secs. 223 to 248 ; Phillips on Ins., p. 49T; Columbia Ins. Co., of Alexandria, vs. Lawrence, 10 Peters, 509; Smith, §e., vs. Haverhill Mutual Fire Ins. Co., 1 Allen, 297.) But such conditions have generally been liberally expounded and held to require only the best evidence of the fact which the party possesses at the time. (Phillips on Ins., 498.) It does not appear that the claimant is bound to comply with these requirements with technical strictness, either, as to time or manner.</p> <p>2. Although the assured had not taken the necessary steps to render his claim for losses payable, his claim was a valuable right, subject to attachment by the laws of this State, in the hands of the Insurance Company; and, being so attached, if the assured still failed to furnish the preliminary evidence of the loss, &c., his attaching creditor could do so, by taking the testimony of the assured and others, and, under the circumstances, the proof made by the depositions of the assured and the magistrate may be taken as in place of the preliminary proof mentioned in the policy. ’</p>

<p>X. An attachment lien is created on the defendant’s estate at the time it is placed in the hands of the officer. If the service of the attachment process is acknowledged by the defendant, as prescribed in section 76, Civil Codé, a lien on his estate is created, and operates only from the time of such acknowledgment. »</p> <p>2. By amended pleadings, describing and attempting to taclc on additional property, not mentioned in the original petition and attachment, no lien is created on such additional property until an attachment has been duly issued on such amended pleadings, and placed in the hands of the proper officer, or service thereof is duly acknowledged by the defendant.</p> <p>3. Nothing to the contrary appearing, the court will presume the sheriff did his duty, and first levied those attachments which first came to his hands.</p>

<p>CASE 87 — PETITION ORDINARY —</p> <p>APPEAL PROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>CITED</p> <p>Greenleaf s Ev., secs. 275 to 279.</p> <p>2 Parsons vn Contracts, sec. 10, note t, s. page 61.</p> <p>lb., pp. 76, 77, 27, 28.</p> <p>8 Shepherd, 484; Warren vs. Wheeler.</p> <p>7 Dana, 435; Turner vs. Johnson.</p> <p>17 B. Mon., 483 ; Hicks vs. Shouse.</p> <p>2 Am. Law Rg.,p. 129, et seq.</p> <p>14 B. Mon., 554 ; Martin vs. McDonald.</p> <p>1 Met., 237; Mitchell vs. Mattingly.</p> <p>5 IAttell, 335; Chambers vs. George.</p> <p>3 Mon., 166; McCord vs. Ford, SfC.</p> <p>3 Littell, 243 ; Anderson vs. Ewing.</p> <p>9 Ind., 514; Connell vs. Pumphrey.'</p> <p>1 Black/., 233 ; Osborne vs. Fulton.</p> <p>1 Black/., 350; Fischlivs. Cowan.</p> <p>2 Duvall, 29 ; Griswold vs. Hepburn.</p> <p>CITED—</p> <p>2 Parsons on Contracts, pp. 27, 173, 174.</p> <p>5 Mon., 9 ; Haggin vs. Williamson.</p> <p>17 B. Mon., 486 ; Hicks vs. Shouse.</p> <p>1 Met., 438; Woodcock vs. Farrell.</p>

<p>1. A voluntary deed made to a wife or child, with the fraudulent intent as to existing debts, or with a design to future indebtedness, would be pronounced void, both as to prior and subsequent creditors, because of the ill faith and corrupt motive; but subsequent creditors cannot impeach it upon the mere ground that it was voluntary. It must be shown to have been fraudulent or made with a view to future debts.</p> <p>2. The mere fact of indebtment at the time does not, per se, constitute a substantive ground to avoid a voluntary conveyance for fraud, even in regard to prior creditors. The question whether it is fraudulent or not is to be ascertained, not from the mere fact of indebtment at the time, but from all the circumstances of the case. (Story’s Equity, sec. 362.) The want of a valuable consideration may be a badge of fraud; but it is only presumptive and not conclusive, and may be met and rebutted by evidence on the other side.</p> <p>3. If the grantor, at the time of making the settlement, is insolvent or in doubtful circumstances, the conveyance would be within the statute of frauds and void; but if he he not indebted to such extent as that the conveyance will deprive the creditors of an ample fund for the payment of their debts, a good consideration will be sufficient to support the deed, although voluntary, for it is free from fraud. A distinction, however, has been made, so far as creditors are concerned, between a voluntary conveyance to the grantor’s children and to strangers. (Tinders vs. Williams, 1 Met., 34Y.)</p> <p>i. The statute of frauds was never appplied to purchases by a debtor, but has been construed to operate only on conveyances by him. (Doyle and others ns. Sleeper and Alsop, 1 Dana, 531, and authorities cited.)</p> <p>5. On the marriage of an administratrix, her authority as such ceases.</p>

<p>1. Although a partial failure of consideration was, before the adoption of the Code of Practice, not pleadable to an action on a note, yet it might have been remediable in equity.</p> <p>2. The Code requires all defenses, equitable as well as legal, to be pleaded to an action at law; and an equitable right, thus available, maybe lost unless thus litigated; consequently, whenever the court saw that there was a partial, and only partial, failure of consideration, it ought to have considered the equitable defenses by transferring the case to the equity side of the docket, and, by a commissioner or otherwise, have ascertained the extent of the failure, and given credit for it in the judgment.</p>

<p>1. M. held the title bond of I. and E, for a tract of land, for the purchase of which he owed two notes, with lien upon the land. B. held one note,</p> <p>-1, and F. held the other. In lieu of the latter note, M. executed to I. and F. separate notes, with personal security to F. I. obtained judgment on his note, and bad execution thereon in the officer’s hands, when I. and E. made and acknowledged a deed io M. for the land in consideration of the amount of I’s. judgment, which they acknowledged in the deed was fully paid. I., being county court clerk, recorded the deed the same day it was made, and had the land levied upon and sold to satisfy his execution, and became the purchaser of the land. B. filed his petition, setting out the facts, claiming a prior lien, and alleging that the making of the deed was a fraud upon his rights. Held — That the making of the deed was a fraud upon B.’s rights, and could, in no possible view, affect his lien as between the original parties, but as I. and F. had voluntarily made the deed without B.’s knowledge or consent, it is binding on them, and had the legal effect to waive all liens which they held as vendors. The only lien I. then held was his execution lien; and like all other execution creditors, this lien was subordinate to B.’s vendor’s lien. B. then became the holder of the prior lien, being the only vendor’s. ‘ lien, and would be prior to I.’s execution lien.</p> <p>2. A judgment of the lower court, which is manifestly right, though given for a wrong or insufficient reason, will be affirmed.</p>

<p>In a suit, to set aside as fraudulent, a conveyance of land, in which the vend- or’s wife did not relinquish her potential right of dower, the land was subjected, and sold by decree of the court. The vendor’s wife being made a party to the suit during coverture, swore to and filed her answer therein, setting up and alleging that she had, in another deed, relinquished her right of dower in the land in controversy. Although the deed referred to in her answer was lost, or not acknowledged and recorded, and never filed in said suit, and never made effectual against her, after the death of her husband, she is estopped from recovering dower in the land against the purchasers at said decretal sale, and those holding under them.</p>

<p>CASE 92 — PETITION EQUITY —</p> <p>APPEALS PROM LOUISVILLE CHAHCERY COURT.'</p> <p>CITED—</p> <p>Civil Code, secs. 153, 340; 1 Rev. Slat., 117.</p> <p>3 Leigh, 450; Gallego vs. Atty. Geni.</p> <p>4 Dana, 354; Moore vs. Moore.</p> <p>23 New York, 298 ; Beekman ,vs. Bonsor.</p> <p>2 Redfield on Wills, 812.</p> <p>Session Acts, 1849, 354.</p> <p>Angelí Ames on Corpo., secs. 80, 83, p. 77.</p> <p>17 Maine, 440; Coffin vs. Collins.</p> <p>1 Sand. Ch. R., 179; Talk vs. Crandall.</p> <p>2 Met. {Kyi), 324; Fry vs. Lex. and Big S. R. R.</p> <p>23 N. Y. Rep., 356 ; Downing vs. Marshall.</p> <p>4 Wheaton, 1; Bap. Asso. vs. Hart.</p> <p>4 Leigh, 327; Janey vs. Janette.</p> <p>" 5 Humph. {Tenn.), 197; Green vs. Mien.</p> <p>14 New York, 380; Owens vs. Missionary So.</p> <p>1 Sim. éf Stu., 40; Wellbeloved vs, Jones.</p> <p>1 B. Mon., 215; Chambers vs. Bap. Ed. So.</p> <p>1 Revised Statutes, 235.</p> <p>8 Dana, 38; Curling vs. Curling.</p> <p>14 Johns., 243 ; Dutchess Cot. Manf. Co. vs. Davis.</p> <p>5 Wendell, 482; Bank vs. Williams.</p> <p>9 Cowen, 437; McCartee vs. Orph. Asy. So.</p> <p>3 Sandf., 351; Ayres vs. M. E. Church.</p> <p>8 Dana, 118; Lathrop vs. Comí. Bk.</p> <p>24 Wendell, 630; Humbert vs. Trinity Ch.</p> <p>1 Phill., 290, in 19 Eng. Chy. Rep.; Walsh vs. Gladstone.</p> <p>7 Met. {Mass.) 203 ; Tucker vs. Seaman's Aid So.</p> <p>19 Eng. Chy. Rep., 270; Blundell vs. Gladstone.</p> <p>Wigram on Extrinsic Ev., 94, 106, 115, 137, et seq.</p> <p>33 Barb., 537; Hallett vs. Harrower.</p> <p>28 Barb., 59; Kennedy vs. Colton.</p> <p>1 Roper on Legacies, 175.</p> <p>22 Conn. Rep., 32; White vs. Fisk.</p> <p>15 Wendell, 314; U. S. Bank vs. Stearns.</p> <p>CITED—</p> <p>32 Miss., 218; Bank of Commerce vs. Mudd.</p> <p>2 Marshall, 102; U. S. Bank vs. Norrell.</p> <p>2 Brownl. and G., 100; 16 Ind., 40.</p> <p>3 Ind., 284; Morgan vs. Lawrenceburg.</p> <p>2 Metcalfe, 314; 28 Barb., 59 ; Kennedy vs. Colton.</p> <p>33 Barb., 537 ; Hallett vs. Harrower.</p> <p>23 Vermont, 336; Button vs. American Tract Society.</p> <p>1 Redfield on Wills, 572 to 691.</p> <p>Revised Stat., chap. 21, sec. 25, 1 Stant., 264.</p> <p>Act incorporating Louisville Orphans’ Home Society, Feby. 28, 1849.</p> <p>CITED—</p> <p>Wigrarn’s Extrinsic Ev., secs. 6, 9, 18, 29, 104, 211, 213, 215, 35, note 39n, 121,126 to 130, 215, 203,186.</p> <p>1 Redfield on Wills, pp. 594, 574, 565, 568.</p> <p>1 Jarman on Wills, p. 329, chap. 12, sec. 8.</p> <p>2 DeG. M. Sf 8., 708 ; Harwood vs. Griffith.</p> <p>1 Vesey,jr., 412; Delman vs. Robells.</p> <p>1 Cox, 425; Andrews vs. Dodson.</p> <p>12 Ves., 219; Holmes vs. Constance.</p> <p>1 V. Sf C. C. C., 654; Wilson vs. Squire; 20 Eng, Chy., 654.</p> <p>1 Brown’s Ch. Ca., 84; Waybank vs. Brooks.</p> <p>7 Mete., 209 and 416 ; Tucker vs. Seaman’s Aid So.</p> <p>1 Greenleaf’s Ev., sec. 63.</p> <p>Angelí Sf Ames on Corps., secs. 99, 102.</p> <p>Wilcox on Corps., secs. 50, 36, 37, 39.</p> <p>10 Coke’s Rep., 267; Ddlison, 78; 2 Marsh, 174.</p> <p>6 Taunt., 467; 13 Mass., 141; 2 Met. {Ky.), 78.</p> <p>2.Kay Sf John., 740; Bennett vs. Marshall.</p> <p>1 Sm. Sf Gif, 126.</p> <p>1 Phillips (19 Eng. Chy.), 270, 285, 286, 289.</p> <p>17 Eng. Chy., 103, 104; 19 lb., 501.</p> <p>3 Watts {Pa.), 385; Vernor vs. Henry.</p> <p>4 Barb. (N. Y.), 81; Banks vs. Phelan.</p> <p>15 Connecticut., 292, 274; 23 Vermont, 346,348, 340.</p> <p>2 Marshall, 50 ; Breckinridge vs. Duncan.</p> <p>3 Mar., 123 ; Plumbic vs. Mumble.</p> <p>5 J. J. M., 351; Noland vs. Johnson.</p> <p>3 Littcll, 302; Kenney vs. Kenney.</p> <p>7 Mon., 428 ; Webb vs. Webb.</p> <p>2 Dana, 47 ; Tudor vs. Terrell.</p> <p>5 Dana, 345; Tirnberlake vs. Parrish.</p> <p>1 B. Mon., Ill; May don vs. Ewing.</p> <p>6 B. M., 219; Long vs. Duvall.</p> <p>8 B. M., 600; Stephen vs. Walker.</p> <p>3 B. M., 291 ; Wheeler vs. Dunlap.</p> <p>17 B. M., 61; Mitchell vs. Walker.</p> <p>1 Met., 265; Allen vs. Vanmeter.</p> <p>10 Co., 306; 15 Vin. Ab., 491.</p> <p>3 Randolph's Rep., 141-4; Sandford's Chy. Rep., 758.</p> <p>24 Wendell, 629, 630 ; Humbert vs. Trinity Church.</p> <p>7 Sergt. Sp Raiole, 320-23 ; 7 Barr, 233.</p> <p>CITED—</p> <p>1 Jar. on Wills, pp. 363-4, 359-60.</p> <p>1 Greenlca.f on Ev., sec. 289.</p> <p>2 Marshall, 50 ; Breckinridge and wife vs. Duncan. ¡</p> <p>7 Met. (Mass.), 416; Minot vs. Boston. Asylum.</p> <p>1 B. Mon., 220; Chambers vs. Baptist Ed. Society.</p> <p>4 Dana, 354 ; Moore vs. Moore.</p> <p>8 Dana, 38; Curling vs. Curling.</p> <p>7 B. M., 11; Attorney Geni. vs. Wallace.</p> <p>Revised Statutes, chap. 14, secs. 1, 2.</p> <p>2 Dana, 177 ; Gass Sp Bonta vs. White, Spc.</p> <p>2 Kent, 292; 4 Shop., 224; 11 N. H., 102.</p> <p>■ 2 Fair/., 227; 12 Wheat., 71.</p> <p>Angelí Sy Ames on Corp., sec. 83 ; 1 Hall, 191.</p> <p>CITED—</p> <p>Civil Code, sections 117, 896.</p> <p>17 B. Mon., 13 ; Sanders vs. Sanders.</p> <p>2 Met., 210 ; Schwein vs. Sims.</p> <p>7 Sergt. Sf Rawle, 320-23; Lcazure vs. Hilly as.</p> <p>4 Sandford’s Chy. Rep., 758; Borgardus vs. Trinity Church.</p> <p>24 Wend., 587, 604, 629; Humbert vs. Trinity Church.</p> <p>6 Cowen, 23 ; Vernon Society vs. Hills.</p> <p>16 Peters, 492-3 ; Harpending vs. The Dutch Church.</p> <p>11 Sergeant Sy Rawle, 418; Baird vs. Bank of Washington.</p> <p>3 Randolph’s R., 136 ; The Bank vs. Poitiaux.</p> <p>2 Met., 277; Allen vs. Vanmeter.</p> <p>Rcdjicld on Wills, pp. 576, 627.</p> <p>Greenlcaf on Ev., sec. 290.</p> <p>5 Meeson 4* Wclsby, 367 ; Hiscox vs. Hiscox.</p> <p>12 Ad. Sy El., 92; Allen vs. Allen.</p> <p>5 Rep., 68; Cheny’s Case.</p> <p>2 M. Sy W., 129; Gord vs. Needs.</p> <p>19 Eng. Chy., 270 ; Blundell vs. Gladstone.</p> <p>6 Mad., 192 ; Still vs. Hoste.</p> <p>2 Kay Sf Joh., 740; Bennett vs. Marshall.</p> <p>20 Eng. Chy.; Wilson vs. Squire.</p> <p>15 Conn., 274; Brewster vs. McCall’s devisees.</p> <p>16 Conn., 302; Ayres vs. Weed.</p> <p>23 Vermont, 336; Button’s ex’rs vs. Am. Tract Society.</p> <p>4 Bradf. Sur. Rep., 162; Hart vs. Marks.</p> <p>5 Mar., 506 ; Breckinridge vs. Duncan.</p> <p>1 B. Mon., Ill; Haydon vs. Ewing's devisees.</p> <p>8 Dana, 38 ; Curling's adm'r vs. Curling's heirs.</p> <p>2 Vcscy, sr., 216 ; Hampshire vs. Pierce.</p> <p>2 Mccson df Welsby, 129; Doe and d, Gord vs. Needs.</p> <p>4 Vesey,jr., 630; Price vs. Page.</p> <p>8 Bingh., 244; Miller vs. Travers; Wigram, 160, note.</p> <p>16 L. J. N. S. Chy., 434; Reynolds vs. Whcelan.</p> <p>1 Met., 264; Mien and wife vs. Vanmeter's devisees.</p> <p>13 B. Mon., 292; Wheeler's cx'rs vs. Dunlap.</p> <p>17 B. Mon., 66; Mitchell vs. Walker.</p> <p>3 Barn, df Aid., 632 ; Chevalier vs. Huthwaitc.</p> <p>3 Mecson dp Welsby, 263 ; Hiscox vs. Hiscox.</p> <p>6 Mann. <§- Gr., 359 ; Winter vs. Perratt.</p>

<p>1. Mortgages made alone to secure simultaneously created liabilities, although made in contemplation of insolvency, are not denounced by the act of March 10, 1856, and will cot inure an assignment to the benefit of general creditors.</p> <p>2. Mortgages made to secure previously existing debts, no matter how insignificant in amount, if made in contemplation of insolvency, will inure a legal assignment of the mortgagor's estate to the benefit of all his creditors, and this cannot be prevented by including in it simultaneously created liabilities, though these latter were in reality the moving cause and the almost only incentive to the mortgage. Tet, in distributing the assets of the debtor, the mortgagee should be regarded as a preferred creditor on all simultaneously created liabilities — these do not fall within the denunciation of the statute.</p> <p>3. Attaching creditors acquire no prior lien by virtue of their attachments when the property and effects of the debtor are held to have inured to the benefit of all his creditors under the provisions of the act of March 10, 1856. (1 Stant., 553; Shouse vs. Vilerbach, 2 Met., 53; Given, Ilaynes § Go. vs. Gordon, 3 Met,., 539.)</p> <p>4. When a conveyance is set aside for constructive fraud — -legal fraud — the known and well established rule of equity is, to give preference for the actual outlay to the holder of the legal title.</p> <p>5. Statements and recitals in a deed, as a general rule, are evidence between the parties and privies, but not against strangers for any purpose.</p> <p>6. When a deed is attacked as fraudulent, there should be other evidence than the mere recitals in the deed to establish a valuable consideration paid.</p> <p>T. A deed being attacked as fraudulent, and no other evidence than the recitals in the deed being offered to show that a valuable consideration was in good faith paid, the deed is held to be fraudulent and set' aside — -it also appearing that the grantor actually intended to defeat a portion of his creditors, and that he was in intimate business and personal relations with the grantee, who was at the time his heavyindorser.</p>

<p>1. The general council of Louisville ordered and required part of Brook street to be regraded, and the additional embankment, caused by the regrading, to be protected by filling up the front of adjacent lots, or by a perpendicular wall- — all to be done at the expense of the lot-owners. On the grounds that the proposed grade would raise said street in front of their mills and lot so as to exclude light and air from their mills, and prevent the use of their only passway for ingress and egress to and from their mills, and that the damage to their property and business, resulting from such improvements, would be irreparable, the Louisville Rolling Mill Company sued out an injunction against the city and its contractors to prevent the making of said improvements. The judgment of the chancellor perpetuating temporarily the injunction is affirmed, with directions to him, to keep control of the cause, and to modify the injunction, from time to time, upon proper application,' as directed in the opinion of the court.</p> <p>2. Cities have not the absolute uncontrollable right to order such improvements of the streets as they may deem necessary or beneficial at the expense of the property-holders, and in utter disregard of their interest, and without compensation; for it sometimes happens that such improvements will not only render the property entirely valueless to the owner, but more — take it from him to pay for its own improvement, besides destroying his business, and sometimes causing him to contribute from his other means to its destruction.</p> <p>3. So long as the city confined the improvement to the boundary of the street, and interfered with no private right of light, air, or private passway, the incidental injury to the lot-owners would be of that class of misfortunes, to them, for which no .remedy for the injury is afforded bylaw. (Eeasy vs. Louisville, 4 Dana, 154; Radcliff's ex’rs vs. Mayor, &c., of Brooklyn, 4 Comstock, 195.)</p> <p>4. Lot-owners in cities and towns may be presumed to have purchase's;*!^ contemplation of the power in the local authorities to direct them tc^ make such improvements as are ordinary and useful, at their own expense; but when the improvements are of an extraordinary character, and so peculiarly injurious to the proprietors as to result, to some considerable- extent, in a deprivation of the use of their property, and injury to their business, such improvements should not be made without compensation.</p>

<p>CASE 95 — PETITION ORDINARY —</p> <p>APPEAL PROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>CITED—</p> <p>Revised Statutes, chap. 7, sec. 16.</p> <p>9th sec. Judiciary Act of Congress of 1789.</p> <p>•4 Wallace, 571 ; The Hiñe vs. Trevor.</p> <p>10 Wheaton, 473 ; 6 Howard, 344.</p> <p>12 Howard, 466, 468; Fritz vs. Bull.</p> <p>5 Howard, 441; 4 Wallace, 431 ; The Moses Taylor.</p> <p>Act of Congress 1852, U. S. Stat. at Large, vol. 10,p. 61.</p> <p>Act of Congress of 1845.</p> <p>7 B. Mon., 39 ; Broadwell vs. Swigert.</p> <p>CITED—</p> <p>Revised Statutes, chap. 7.</p> <p>U. S. Stat. at Large, vol. 9, secs. 18, 29, pp. 70, 72.</p> <p>17 B. Mon., 37; Wilson vs. McGuire.</p> <p>16 B. Mon., 677; Bentley vs. Bustard.</p> <p>18 Howard, 584.</p> <p>1Newberry, 227; The Gale vs. Miranda.</p> <p>U. S. Constitution, art. 3, secs. 1, 2.</p> <p>Act of Congress 1789, sec. 9.</p> <p>4Wallace, 427; The Moses Taylor.</p> <p>4 Wallace, 555-71 ; Mine vs. Trevor.</p> <p>1 Newberry, 297; Ashbroo/c vs. Golden Gate.</p> <p>Am. Law Reg. (new series), vol. 6,p. 596, Aug., 1867.</p> <p>3 Story on Con., 1st ed., note to sec. 1666; '2d cd., note to sec. 1672.</p> <p>5 Howard, 441; Waring vs. Clark.</p> <p>16 B. Mon., 577; Kountz vs. Brown.</p> <p>3 Met., 535-6; Sparks vs. Kate French.</p> <p>4 Met., 39; Yeaker vs. Ycalccr.</p> <p>2 Peters, 526; Bank of Hamilton vs. Dudley.</p> <p>22 Howard, 243 ; Sinnot vs. Davenport.</p> <p>28 Ala., 185; Commissioner, SfC., vs. S. B. Cuba.</p> <p>4 California, 46; People vs. Coleman.</p> <p>1 Newberry, 73 ; Riggs vs. John Richards.</p> <p>18 How., 71; Smith vs. State of Maryland.</p> <p>3 Gray, 268; Dunham vs. Lampton.</p> <p>2 Gray, 339; Commonwealth vs. N. Bedford Bridge.</p> <p>18 Mo., 238; St. Louis vs. McCoy.</p> <p>14 How., 568; Vcazie vs. Moore.</p> <p>4 Sandford, 492; Fitch vs. Livingston.</p> <p>4 Georgia, 26; Mayor of Savannah vs. Slate.</p> <p>18 Conn., 500 ; Thames Bank vs. Levicl.</p> <p>3 Dana, 279; Church vs. Chambers.</p> <p>18 La. An., 289; Portwardcns vs. Martha J. Ward.</p> <p>19 California, 82; Addison vs. Saulnier.</p> <p>42 Penn., 219.</p> <p>4 Wheaton, 122, 195; Sturgcs vs. Crowning shield.</p> <p>6 Cranch, 87; Fletcher vs. Peck.</p> <p>10 How., 415; Butler vs.'Pennsylvania.</p> <p>21 How., 184; James Gray vs. Fracer.</p> <p>4 Wallace, 713 ; Gillrhan vs. Philadelphia.</p> <p>1 Black., 603 ; Conway vs. Taylor's ex'r.</p> <p>2 Peters, 252; Wilson vs. Black Bird, <§-c.</p> <p>12 How., 299 ; Cooley vs. Wardens of Philadelphia.</p> <p>16 B. Mon., 602 ; Dryden vs. Commonwealth.</p> <p>16 B. Mon., 794-8 ; Newport vs. Taylor's ex'rs.</p> <p>Chitty's Pleadings, 86, 87; 9 Am. from 7th London ed.</p> <p>Story on Partnerships, secs. 167, 458, 3d ed., notes 1 to 6, Am. from 8th London ed.</p> <p>Abbot on Shipping, 131.</p> <p>1 Wash. C. C., 142; Stone vs. Killand.</p> <p>4 Dallas, 206 ; Bussey vs. Donaldson.</p> <p>1 Dallas, 184; Purviance vs. Angus.</p> <p>1 Peters' Ad., 245; Atkins vs. Burrows.</p> <p>Bus. Ad., 369 ; Dean vs. Angus.</p> <p>Story on Agency, secs. 316, 318, 453, 454, 4th ed.</p>

<p>1. The vendor of a slave being a creditor on a note for the price of the slave, with personal security against the estate of the deceased purchaser, after the purchaser’s death, took possession of, and had said slave In his service, and listed him for work on the military railroad in 1863. If he converted said slave, he is liable for his value at the time of conversion, and for reasonable hire whilst in his possession after the vendee’s death. If he illegally took possession, and by reason thereof the slave ran away and made his escape, he is liable to the extent he actually damaged the estate by so doing; and as he became the executor of his own wrong, to the extent he illegally interfered with the assets of decedent’? estate, the amount and value of such assets in his hands should be regarded as a payment on his debt, and the surety should be permitted to set it up as an offset, not as a mere trespass, but as assets in his hands as executor of his own wrong.</p> <p>2. An executor de son tort, is to be sued, and is liable as other executors; and defenses to their individual claims, can be used, as though, they were rightful executors.</p>

<p>CASE 97— PETITION EQUITY —</p> <p>APPEAL FROM BULLITT CIRCUIT COURT.</p> <p>CITED—</p> <p>1 Dana, 35; Ross vs. Garrison.</p> <p>1 Dana, .242; Rogers vs. Grider.</p> <p>6 Dana, 387; Thompson vs. Peebles.</p> <p>CITED—</p> <p>12 B. Mon., 651; Moore vs. Moore.</p> <p>1 Duvall, 272; Babbit, Sgc., vs. Scroggin, Sf-c.</p>

<p>1. The official acts of a clerk, who had been placed in the office of county court clerk of Warren county, in 1862, by authority of the “Provisional Government of Kentucky,” cannot be regarded as valid for any purpose. Neither the political power of the United States, nor of the State of Kentucky, have ever recognized such provisional government as an existing de facto government.</p> <p>2. A deed acknowledged before, and recorded by, an officer whose official acts are invalid, cannot be considered as recorded, and as constructive notice, nor can a certified copy be regarded as evidence; yet the original deed may be treated as an unrecorded instrument, quite as good as a title bond, and connected with the possession, such notice, to the world of ownership of the land held under it, as in equity, to protect the equitable title.</p> <p>3. The ante-dating of a deed, making it over eight months previous to its acknowledgment for record, would have rendered the recording as . unavailing, only from the date of the acknowledgment; and, as an unrecorded instrument, it should be regarded as of this latter date.</p>

<p>CASE 1 — TAX DELINQUENT —</p> <p>APPEAL FROM FRANKLIN COUNTY COURT.</p> <p>CITED—</p> <p>Revised Statutes, sec. 20, chap. 83, 2 Stanton, 255.</p> <p>1 Bibb, 515; Alexander vs. Commonwealth.</p> <p>7 Dana, 341; Johnson vs. Commonwealth.</p> <p>1 Bibb, 516; McCall vs. Justices of Clark.</p> <p>CITED—</p> <p>Revised Statutes, sec. 23, 2 Stanton, 256.</p>

<p>CASE 2 — INDICTMENT—</p> <p>APPEAL PROM MAGOPPIN CIRCUIT COURT:</p> <p>CITED—</p> <p>Revised Statutes, secs. 11 and 19, art. 12, chap. 32.</p> <p>CITED—</p> <p>Revised Statutes, sec. 11, art. 12, chap. 32.</p> <p>1 Met., 366; Murphy vs. Commonwealth.</p> <p>18 B. Mon., 490; Marston vs. Commonwealth.</p>

<p>The surety of the firm of D. & W. was also the surety of W. individually. The surety, having received funds belonging to the firm, had no right to apply these partnership funds, even by the direction of W., to the payment of W.’s individual debts, without the consent and agaiiud the wishes of D. (Story on Partnerships, 218.) Having thus misapplied the funds of the firm without the sanction of D., and having . , paid the firm debt with his own money, the surety will be held to have paid the partnership debt, as with the partnership funds.</p>

<p>On petition of one of four adult joint owners under the act of February 15, 1866 (Myers’ Sup., 751), the circuit court has jurisdiction to order a sale of a house and lot which is not susceptible of division, and to divide the proceeds of the sale, although the other joint owners protest against the sale.</p>

<p>CASE 5 — BAIL—</p> <p>APPEAL PROM MARSHALL CIRCUIT COURT.</p> <p>CITED—</p> <p>Criminal Copie, sees. 77, 80, 388, 92.</p> <p>MSS. Opin., 1857, Commonwealth vs. Hall.</p> <p>CITED—</p> <p>Criminal Code, secs, 381, 77, 88, 90, 92.</p>

<p>CASE 6 — INDICTMENT—</p> <p>APPEAL PROM GALLATIN CIRCUIT COURT.</p> <p>CITED—</p> <p>Revised Statutes, secs. 1, 2, Stanton, p. 414. .</p> <p>Criminal Code, secs. 342, 226.</p> <p>1 Met., 378; Payne vs. Commonwealth.</p> <p> Bouvicr’s Law Dictionary, “ Res Gestee.” </p> <p>1 Greenlcaf’s Ev., sec. 108.</p> <p>2 Hill, N. Y., 248, 257; Bartholemy vs. The People.</p> <p>CITED—</p> <p>Criminal Code, sec. 267, subsec. 4.</p>

<p>1. Proceedings under the act of February 16, 1858, to amend chapter 86 of the Revised Statutes (2 Stanton, 314), to sell, and reinvest, land held for life,’ with remainder over to children, &c., are the same whether the remainder-men are infants or adults; but if infants are entitled to the remainder, they should defend by guardian ad litem.</p> <p>2. When infants' real estate is sold under article 3, chapter 86, Revised Statutes (2 Stanton, 304), a strict observance of the requirements of the statute is eminently proper for the protection of the rights of infants. But when the sale is made for the purpose of reinvesting the proceeds in other real estate, and not to be placed in the hands of guardians, the reasons for the requirements of article 3, chapter 86,. cease.</p>

<p>1-. On the petition of the husband as next friend of his wife, she being made a defendant, at the instance of the husband and wife, and on their own pleadings, they obtained a judgment of the circuit court to sell a house and lot, which had been conveyed to her and to her sole and separate use; and upon their prayer and allegations, &c., that the words “to her sole and separate use” were inserted in the deed by mistake, they obtained a judgment of the court to correct the mistake and reform tho deed. The sale being confirmed, they prosecuted an appeal to the court of appeals, seeking a reversal of the judgment of their own procurement. The judgment of the circuit court is affirmed.</p> <p>2. Parties will not be allowed to call in question, in a revising court, a judgment in their favor, rendered at their instance, and effecting every object which they sought or had a right to attain. [Todd, &c., vs. McOlanahan’s heirs, 1 J. J. Marshall, 356.)</p> <p>3. If a party, having an interest in preventing an act being done, acquiesces in it so as to in'duce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no right to challege the act to their prejudice (2 Story's Equity, 156); and a fortiori is this so, when the party complaining of an act to his prejudice, has procured it to be done, by a representation of facts inconsistent with the subsequent claim; and married women are not exempt from this rule. (1 Story’s Equity, 368.)</p>

<p>1. For effectuating the trust most safely and beneficially, the common law authorized the trustee, with the sanction of a court of equity, to reinvest, and for that purpose to sell and buy when useful.</p> <p>2. An estate held for life, or in trust for life, with remainder over to children, &c., by proper proceedings under the act of February 16, 1858 (2 Stanton, 314), maybe sold and reinvested; and the purchaser of the land so held and sold by decree of the court is invested with a valid and secure title.</p> <p>3. The purchaser of land at a decretal sale, may except to the confirmation of the commissioner’s report of sale, and may prosecute an appeal to the court of appeals, to reverse the judgment of the lower court, on such exceptions.</p>

<p>CASE 10 — BASTARDY—</p> <p>APPEAL FROM FLEMING COUNTY COURT.</p> <p>CITED—</p> <p>Act of Feb. 3, 1815; M. A B., 2d vol., 1524-7.</p> <p>Act of Nov. 19, 1851; 1 Stanton, 232.</p> <p>3 Met., 4; Commonwealth vs. Runnion.</p> <p>1 Duvall, 93 ; Cooper vs. Poston.</p> <p>1 Litiell, 262 ;• Shearer vs. Clay.</p> <p>Hardin, 154; Owens vs. Owens.</p> <p>3 Marshall, 546-7; Brooks vs. Clay.</p> <p>1 Marshall, 436; Baker vs. Hopkins.</p> <p>CITED—</p> <p>Act of June 3, 1865; Act of Feb. 3, 1815.</p> <p>Act of Nov. 19, 1851; Act of Feb. 6, 1819.</p> <p>Hardin, 224-5; Shipp vs. Gale.</p> <p>Criminal Code, sec. 89; Civil Code, sec. 28.</p> <p>Act of March 1, 1860.</p>

<p>CASE 11 — PETITION EQUITY —</p> <p>APPEALS PROM MADISON CIRCUIT COURT.</p> <p>CITED—</p> <p>Act of 1854, exempting tools from, levy, 1 Stanton, 495.</p> <p>Rev. Stat., secs. 28 and 30, chap. 97, 1 Stant., 96, 98.</p> <p>Civil Code, secs. 721, 722, 726.</p>

<p>1. The death of the defendant having been suggested, and the action continued for revivor against his executrix, at the next term of the court she filed her answer without objection, and without a formal revivor^ Afterwards, the plaintiff brought the case to the court of appeals, and the judgment was reversed without any question by the plaintiff or the court as to her right to defend as executrix. The case being brought to the court of appeals a second time by the plaintiff, it is certainly now too late for him to malre that question.</p> <p>2. The right of an executrix resident in Missouri to defend a suit in this State, is not extinguished by her subsequent marriage. Our statute to that effect does not apply to foreign representatives whose rights depend on foreign law.</p> <p>3. According to the common law, which, without proof to the contrary, must be presumed to be the law of Missouri, the State of the residence of the executrix, her executorial functions were neither extinguished nor suspended by her subsequent marriage.</p> <p>4. The local law requiring a foreign representative, to execute bond before suing in this State, does not apply to one who is sued here and chooses to defend.</p> <p>5. The record, showing no objection to the submission of the ease only a few day3 after the filing of the amended answer, the hearing may not have been premature or erroneous. As there was no objection to the hearing, no motion for a continuance or for a rehearing, the court of appeals will not adjudge the hearing premature or erroneous.</p> <p>6. The circuit court dissolving the injunction, rendered judgment for fourteen dollars, ten per cent, damages, when ten per cent, on the amount enjoined amounted to a few cents less than seven dollars. For this error, the judgment for damages is reversed.</p>

<p>CASE 13 — INDICTMENT—</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>CITED—</p> <p>Rev. Stat., sec. 2, art. 5, chap. 28, 1 Stant., 381.</p> <p>CITED—</p> <p>Criminal Code, secs. 271, 121.</p> <p>3 Met., 18; Jane vs. Commonwealth.</p>

<p>CASE 14 — PETITION ORDINARY —</p> <p>APrEAL FROM BOURBON CIRCUIT COURT.</p> <p>CITED—</p> <p>Rev. Stat., sec. 2, art. 13, chap. 86.</p> <p>15 B. Mon., 473; 17 B. Mon.j 559.</p> <p>1 Dana, 185; 3 Dana, 204.</p> <p>CITED—</p> <p>1 Sand. (N. F. S. C.), 98; Argali vs. Bryant¡</p> <p>2 Stroble (S. C.), 344; Sinclair vs. Barr. ' ;■</p> <p>Littell'’s S. C., 234; 5 Littell, 317.</p> <p>5 Littell, 221; Smith vs. Morrow.</p> <p>6 J. J. M., 479 ; Commonwealth vs. Me Chord.</p> <p>1 Dana, 14; Norton, SfC.,vs. Sanders, Sfc.</p>

<p>CASE 15 — PETITION ORDINARY —</p> <p>APPEAL PROM GALLATIN CIRCUIT COURT.</p> <p>CITED—</p> <p>Civil Code, secs. 2, 30; Criminal Code, sec. 8.</p> <p>■Rev. Stat., see. 2, chap. 5, sec. 16, chap. 83,2 Stant., 271.</p> <p>MSS. Opin., Sep. 17, 1867; Commonwealth vs. Reed.</p> <p>CITED—</p> <p>4 Blackstone, 29714 B. Mon.j Cone vs..Bronson.</p> <p> Peters' Abridgment, title “Bail, Grim." </p> <p> V. A. Hale, P. G., title “Crim. Bail." </p> <p> Bacon's Ab., title “Bail, C." </p> <p>1 Bibb, 435; Price vs. Lee. .</p> <p>14 B. Mon., 363 ; Commonwealth vs. Bronson.</p> <p>1 Duvall, 276 ; Askins vs. Commonwealth.</p> <p>2 Met., 385-8; Commonwealth vs. Coleman'.</p> <p>1 Duvall, 19; Miller vs. Commonwealth.</p>

<p>CASE 16 — PETITION EQUITY —</p> <p>APPEAL FROM MADISON CIRCUIT COURT.</p> <p>CITED—</p> <p>7 Monroe, 213; Sanders vs. Vance.</p> <p>5 Dana, 400 ; Taylor vs. Knox.</p> <p>1 Marshall, 577 ; Cartmell vs. Brown.</p> <p>1 J. J. Mar., 556; Stagner vs. Fox.</p> <p>1 J. J. Mar., 582; Noland vs. Richards.</p> <p>3 J. J. Mar., 380; Downing vs. Dean. ■*</p> <p>CITED—</p> <p>Hardin, 579; 1 Bibb, 325, 446; 3 Littell, 71.</p> <p>1 Mon., 150; 4 Mon., 164.</p>

<p>A deputy executed bond with sureties to the sheriff, to guarantee his official fidelity, and to save the sheriff harmless from the consequences of the deputy’s acts. The sheriff was subjected to liability and damages by suit and judgment against him, on account of the default of the deputy. The statute of limitations did not commence to run against the sheriff’s right of action for indemnity against the deputy and his sureties in the bond, until the judgment was rendered against the sheriff, nor was the sheriff’s claim barred until seven years after the rendition of the judgment against him.</p>

<p>1. Tbe money value, but not tbe amount, of greenbacks, tortionsly taken and appropriated, may be recouped or plead as a set-off, or may be recovered by suit — the trespass being waived. (See Eversole -vs. Moore, ante, 49.) ■ x</p> <p>2. Double the value of property unlawfully taken may be recovered or plead as a set-off, when the unlawful taking comes within the provisions of “An act to provide a civil remedy for injuries done by disloyal persons.” (Act of February 22, 1864, Myers' Sup., p. 1.)</p> <p>3. The act of .February 22, 1864 (Myers’ Sup., 1), is law, enforceable by the judiciary'of this State, so far as it applies to guerrillas or any predatory bands of lawless soldiers not governed by the international laws of war, and acting for their own benefit. 4. The act of February 28. 1867, to quiet all disturbances growing out of the late rehellion, commonly called the “amnesty act” (Sess. Acts, p. 51), does not apply to guerrillas or other unlicensed trespassers; and if it did apply to such persons, the act would have been constitutional, so far, and so far only, as it does not attempt to deprive the wronged owner of his vested legal right, to the value of his property illegally taken from him, but would only relieve the wrong-doer of the penalty of double that value.</p>

<p>1. No question can arise in the court of appeals, on the propriety or impropriety of the instructions given, as the only two asked by the Commonwealth were presented without objection, and given" without exceptions, and the only one asked by the defendant, was given.</p> <p>2. The substance of the evidence of a witness, taken down at the examining trial before the committing magistrate, signed by the witness and .the magistrate, although not, of itself , evidence for any purpose, still it is, in connection with other evidence, competent for some purposes.</p> <p>3. The committing magistrate being introduced to prove that the statements of one of the defendant’s witnesses, on the trial in the circuit court, were different from those made by him on the examining trial, the evidence of such witness on the examining trial, signed by the magistrate, is competent as a test of the magistrate’s memory, and to show the imperfection of his recollection of what the witness stated before him.</p>

<p>CASE 20 — INDICT JIE'NT —</p> <p>APPEAL ER03 HAEMSOE CIRCUIT COURT.</p> <p>CITED—</p> <p>2 Met., 391; Rutherford vs. Commonwealth.</p> <p>2 Duvall,- 531; Hudson vs. Commonwealth.</p> <p>1 Green leaf on Hv., sec. 220, fe.</p> <p>2 Met., 24 ; Champ vs. Commonwealth.</p> <p>3 Met., 13; Burns vs. Commonwealth.</p>

<p>CASE 21 — PETITION ORDINARY —</p> <p>APPEAL EROM OWEN CIRCUIT COURT.</p> <p>CITED—</p> <p>Civil Code, secs. 709, 711 to 719.</p> <p>Act of Feby. 19, 1849, Session Acts, sec. 7, page 171.</p> <p>CITED—</p> <p>Civil Code, secs. 709, 711, 719.</p> <p>MSS. Opin., Jany., 1857; Halsell vs. Simon.</p>

<p>CASE 22 — BASTARDY—</p> <p>APPEAL PROM UNION CIRCUIT COURT.</p> <p>CITED—</p> <p>Civil Code, sec. 20; Amendment of March 1, 1860.</p> <p>Revised Statutes, sec. 2, chap. 6.</p> <p>Act of Fel. 17, 1858.</p> <p>Act of March 3, 1860, Myers' Sup., 61.</p> <p>Act of June 3, 1865, Myers' Sup., 62.</p> <p>Act of Fel. 14, 1866, Myers' Sup., 735.</p> <p>MSS. Opm., Jane term, 1866; O'Donoghue vs. Akin.</p> <p>CITED—</p> <p>,4 Met., 71; Commonwealth vs. Taphorn.</p> <p>Act of March 1, 1860, Myers’ Codc,p. 8.</p> <p>See. 12, Act of June 3, 1865.</p> <p>Act of Feb. 14, 1866.</p>

<p>CASE 23-JUDICIAL BOND —</p> <p>APPEAL PROM GRANT CIRCUIT COURT.</p> <p>CITED—</p> <p>Revised Statutes, sec. 11, chap. 97, 2 Stanton, 400.</p> <p>15 B. Mon., 134; Spilman vs. Smith.</p> <p>11 B. Mon., 230; Leavitt vs. Goggin.</p> <p>CITED—</p> <p>Revised Statutes, secs. 11, 12, chap. 97.</p> <p>MSS. Opin., Winter Term,, 1867, Barbee vs. Pitman.</p>

<p>CASE 24 — PETITION ORDINARY —</p> <p>APPEAL PROM HENRY CIRCUIT COURT.</p> <p>CITED—</p> <p>Act of March 2, 1863, Myers’ Sup., 272.</p> <p>CITED—</p> <p>Act of March 2, 1863, Myers’ Sup., 272.</p>

<p>The accused, being under bail, appeared in court, plead not guilty; but, before the jury was empanneled, on his motion, the indictment was set aside. ' The court ordered that the charge against the defendant be submitted to another grand jury, and that the defendant be permitted to stand upon his bail bond. Another indictment was found, and the defendant failed to appear. The sureties in the bail bond were not exonerated or released. (Criminal Code, secs, 78 and 160.)</p>

<p>1. In an action in the Gallatin circuit court against the captain and owners of a steamboat to recover damages for the loss of a slave, unlawfully carried on said boat from said county to Cincinnati, process was served on the captain in Gallatin county, and on the owners in Jefferson county. After the death of the captain and abatement of the suit.as to him, the Gallatin circuit court still had jurisdiction of the action under the amendment of 1860 to section 85 of the Civil Code.</p> <p>2. In an action against the owners of a steamboat for damages for the removal of a slave, the defendants failing to appear or answer, the court heard proof of the damages sustained by the plaintiff, and thereupon rendered judgment against the defendants for five hundred dollars. Meld — That the provisions of section 419 of the Civil Code do not embrace this case, but that sections 451, 454, require, that, in an action like this, the damages shall be assessed by a jury, and that the circuit court erred in rendering the judgment for damages without the finding of a jury. (Revised Statutes, sections 3, 4, chapter 7.)</p>

<p>CASE 27 — PETITION ORDINARY —</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>CITED—</p> <p>Act of Dec. 23, 1803 ; Act of Feb., 1820.</p> <p>5 J. J. Mar., 544; Crozier vs. Scott.</p> <p>Act of Jan., 1829; Act of Feb. 28, 1835.</p> <p>1 Met., 501; Walters vs. Chinn.</p> <p>3 Met., 378; Tudor vs. Lewis.</p> <p>Revised Statutes, secs. 1, 2, art. 4, chap. 20.</p>

<p>“For and in .consideration of one thousand dollars, I have this day sold to Mason Brown my negro man slave, Pete, aged thirty-three years. I warrant that I have good title to him; that he is a slave for life, and sound and healthy. As the said boy has heretofore run away, I covenant that, in case that he runs away and escapes from the said Brown, I will refund five hundred dollars of the purchase money, without interest, as witness my hand this 16th of October, 1858.</p> <p>“E. 0. Hawkins.”</p> <p>Pete ran away and made his escape in August, 1864. Held — That the spirit of the contract would not have entitled Brown to anything for Pete’s escape in old age, and for like reasons, his escape, six years after his delivery, and when unexpected events had caused it, and made him worthless or of less value than five hundred dollars, could not have been contemplated as cause of action for that stipulated sum. Neither party could have contemplated the war and its consequences. No action can be maintained on the bond on account of the ' escape.</p>

<p>1. “Levied November 1, 1863, upon two crops of tobacco, supposed to be sixteen thousand pounds in house, property of W. Barton and D. Adams, for the satisfaction of the within. Stayed by order of James Roberts, attorney for plaintiff, No.vember 1, 1863.</p> <p>“Wm. E. Berryman,</p> <p> 11D. S.for W. J. Brewer, S. M. C.” </p> <p>The stay in the above return is held to refer to, and to operate as, a stay of the levy, and not a stay of the execution, and that the levy was not thereby discharged. (Daviess vs. Myers, 13 B. Mon., 512.) See act of December 20, 1865 (Myers' Sup., 155), requiring consent to the stay to be in writing, &c., after January 1, 1867.</p> <p>2. If the return of a sheriff is ambiguous, it is susceptibly of explanation by other evidence.</p> <p>3. If the return of a sheriff is unambiguous, extraneous evidence maybe introduced to contradict it, and to show its falsity, in a suit directly against the sheriff and his sureties. (Caldwell vs. Marian, 3 Mon., 350; Thompson vs. Morris, 2 B. Mon., 35.)</p> <p>4. “All motions allowed by this chapter must be commenced within two years after the cause of such motion accrues.” (Subsec. 2 of sec. 5, art. 18, chap. 36, 1 Stanton, 494.) The two years' bar to motions, as above, cannot be construed as embracing suits against sheriffs and their sureties.</p> <p>5. Plea of non est factum by sureties in the sheriff’s bond, “that, when ' they signed the sheriff’s bond, the name of D. V. Brewer was to it as a security; that they signed and acknowledged it in presence of the county court, whicli, together with W. J. Brewer, the principal, represented that said D. V. Brewer had signed the bond, whereas he had not signed it; that it was not his act and deed, and that he was not hound by reason thereof; wherefore, they say it is not their act and deed, and they are not bound thereon.” To this plea the circuit court sustained a demurrer. Held by the court of appeals — “That the answer, in this ease, did present a good defense of non est factum by the sureties, and that the demurrer to their answer should have been overruled.” (Seely vs. The People, 27 Ills. Rep.; Rawlings vs. United States, 4 Crunch, 219; and cases cited in vol. 2, new series, 1862, 1863, American Law Register, pages 346-7.)</p>

<p>1. “ The State of Ohio, Greene County, sot.</p> <p>“Before me, T. Marshall, mayor of the city of Xenia, within and for the county aforesaid, personally came Hamilton Creighton and Janet S. Creighton, the grantors in the foregoing conveyance, and acknowledged the signing and sealing of the same to be their voluntary act and deed, for the uses and purposes therein expressed. And the said Janet S. Creighton, wife of the said Hamilton Creighton, being examined by me, separate and apart from her said husband, and the contents of said deed being fully made known to her upon such separate examination, declared that she did voluntarily sign, seal, and acknowledge the same, and that she is still satisfied therewith.</p> <p>“ In testimony whereof, I have hereunto set my hand and seal, this twenty-second day of July, in the year eighteen hundred and sixty-three.</p> <p>“ [l. s.] T. Marshall, Mayor."</p> <p>Sold — That the foregoing certificate of Janet S. Creighton’s acknowlment and privy examination is a substantial and sufficient compliance with all the essential requirements of the statute, and that she is concluded by the deed. ■ Although it is not expressly stated in the certificate that the effect of the deed was explained to her, or that she declared she had delivered it, or consented that it might be recorded, each of these facts is clearly implied by the statements of the certificate. (Revised Statutes, sec. 22, chap. 24.)</p> <p>2. Although, in some respects, a material change has been effected by the Revised Statutes, in the manner of taking and éertifying the acknowl- • edgments of the conveyances of married women, the rules of con"struction, in testing the sufficiency of such instruments, have not undergone any essential change.</p> <p>3. I,n considering the effect of the acknowledgment of conveyances, the principle to be deduced, from the various adjudications on the subject, seems to be, that if, after allowing proper credit to the officer for official knowledge and fidelity, and giving proper effect to the legal pre. sumption that he did his duty, the certificate, either expressly or by clear implication, imports that the examination and acknowledgment were, in effect, conformable with the statute, it will be conclusive, whatever may be the language used in drafting it. (Nantz vs. Bailey, 3 Dana, 111 j ■ Gregory vs. Ford, 5 B. Mon., 471; Gill, $c., vs. Faunt-' leroy's heirs, 8 B. Mon., 177.)</p>

<p>An ex parte order for executing a decree to foreclose a vendor’s lien which had slumbered for six years without any supplemental petition, the holder of the equitable title having died in the meantime, is held to be erroneous, and the sale made under the ex parte order set aside. In this case, the holder of the equitable title was not a party to the suit, but bad acquired bis equity after the rendition of the original decree, with the privity and consent of the plaintiff therein, and had died before the issuance of the ex parte order. The plaintiff in the decree became the purchaser at the sale made under the ex parte order.</p>

<p>■“Twelve mouths after date, the president and directors of the H-nstonsville and Bradfordsville turnpike road company .will pay Leroy Yowell twelve hundred dollars, for value received,-at six. per cent, inters from date, this 1-Sth of November, ÍS65.</p> <p>“E. J. Dobb, Pr$s.,</p> <p>-“James Yowell,</p> <p>41 Jas. J. Drye,</p> <p>- “M. P. Dicte,</p> <p>“Wm. L. MoOaijt.”</p> <p>Held — That wtether the writing above binds the parties individually, or is the obligation of tbe corporation, “is a question of intention, to fee determined from what appears ©a the faee ©f the writing.” The court further say, “we conclude that the parties to said writing did. not intend t© bind themselves personally lor said debt; and that a fair and rational interpretation of its ternas does not impose such liability; but that the corporation named is responsible.” ( Whitney vs. Sudduth, J'c., & Met., 296; -Mash vs. Roberts, 1 B. Men., 201.)</p>

<p>CASE 33 — PETITION ORDINARY —</p> <p>APPEAL PROM MARION CIRCUIT COURT.</p> <p>CITED—</p> <p>1 Marshall, 545.; McBean vs..Morrison. '</p> <p>3 Marshall, 259; McCalla vs. Rigg.</p> <p>1 B. Mon., 201; Nash vs. Roberts.</p> <p>4 Metcalfe, 297; Whitney vs. Sudduth, fyc.</p> <p>1 B. Mon., 13; Com. Bank of New Orleans vs. Newport Manufacturing Company.</p> <p>Session Acts 1857-8, secs. 1-4, 5, page 319.</p>

<p>CASE 34 — PETITION ORDINARY —</p> <p>APPEAL FROM CAMPBELL CIRCOIT COURT.</p> <p>CITED—</p> <p>Sedgwick on Damages, 3d ed., pp. 33 to 35, 35 to 38, and 493 ; 1st ed., 467-8.</p> <p>Angelí on Highways, sec. 290.</p> <p>1 B. Mon., 96-7 ; Ferguson vs. Terry.</p> <p>CITED—</p> <p>Revised Statutes, sec. 1, art. 9, chap. 27.</p> <p>3 Met., 297; Allard vs. S?nith.</p> <p>3 Mar., 360; Biggs vs. Mcllvaine' s ex’x.</p> <p>Civil Code, subdiv. 6 of sec. 369.</p> <p>2 Met., 122; Danville, etc., Turnp. R. Co. vs. Stewart.</p> <p>2 Duvall, 116; L. <§• N. R. R. Co. vs. Collins.</p> <p>3 Met., 313 ; Bowler vs. Lane.</p> <p>Act of March 10, 1854, secs. 1, 3.</p>

<p>CASE 35 — PETITION EQUITY —</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>CITED—</p> <p>Act of March 4, 1865, incorporating Ky. Ins. Co.</p> <p>Angelí Ames on Corporations, 6th ed.,p. 881.</p> <p>8 Barb. N. Y., 358; Suydam vs. Moore.</p> <p>' 23 Maine, 318 ; Read vs. Frankfort Bank.</p> <p>2 Met., 321; Fry's ex'r vs. Lexington and Big Sandy R. R. Co.</p> <p>2 Met., 598; Gregory's ex'r vs. Trustees of Shelby College.</p> <p>4 Wheaton, 629; Dartmouth /College vs. Woodward.</p> <p>1 Paige's N. Y. Gh'y, 108-9; McLean vs. Pennington.</p> <p>1 Morris's Iowa Rep., 482; Miners' Bank Dubuque vs. United States:</p> <p>2 Mass. R., 146; Wilcox vs. Stetson.</p> <p>2 Kent's Com., 306-7.</p> <p>15 B. M., 340; Sage vs. Dillard.</p> <p>26 Penn. R., 287; Erie Sf N. E. R. R. vs. Casey.</p> <p>7 Conn. R., 53; Enfield Toll-bridge Co. vs. Connecticut River Co.</p> <p>2 Met., 169; Louisville and Oldham, Turnpike Road Co. vs. Ballard, fyc.</p> <p>Act of February 14, 1856.</p> <p>Revised Statutes, sec. 15, chap. 21.</p> <p>CITED—</p> <p>Act of March 4, 1865, Session Acts, 217.</p> <p>Revised Statutes, 2 Stanton, 121, 266; 1 lb., 278.</p> <p>Myers' Sup., 120, 201.</p> <p>4 Wheaton, 318; Dartmouth College vs. Woodward.</p> <p>2 Kent's Com., 306, s. p. 307.</p> <p>5 B. Mon., 569-70; Lewis vs. Harbin.</p> <p>4 Met., 294; Berry Sf Johnson vs. Ransdall.</p> <p>New Constitution of Kentucky, art. 13, sec. 20.</p> <p>15 B. Mon., 340; Sage vs. Dillard.</p> <p>9 Cranch, 52 ; Terret vs. Taylor.</p> <p>12 B. Mon., 150; Covington and Lexington R. R, Co. vs. Kenton County.</p> <p>.15 B. Mon., 675; Louisville vs. Louisville University.</p> <p>2 Met., 321; 2 Met., 168-9.</p> <p>1 Sumner, 276; Allen vs. McKeen.</p>

<p>CASE 36 — PETITION FOR MANDAMUS —</p> <p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>CITED— ,</p> <p>Act of Feb. 24, 1868, providing for election of Police Commissioners, <^e.</p> <p>Constitution of Ky., secs. 6 and 10 of art. 6; sec. 3 of art. 5; sec. 38 of art. 4; art. 3, sec. 25.</p> <p>3 Met., 208; Speed Sp Worthington vs. Crawford.</p> <p>Session Acts, 1859-60, page 510.</p> <p>13 B. M., 22; Slack, Spc., vs. Maysville and Lexington. Railroad Company.</p> <p>1 Duvall, 295; Louisville vs. Commonwealth.</p> <p>15 Maryland, 464; Mayor of Baltimore, Spc., vs. The Board of Police.</p> <p>, CITED—</p> <p>Constitution of Ky., sec. 6 of art. 6; sees. 9 and 41 of art. 4; sec. 11 of art. 8; sec. 14 of art. 13.</p> <p>Charter of Louisville of 1851, and Act of 1861.</p> <p>9 Dana, 516; Lexington vs. McQuillan’s heirs.</p> <p>3 Met., 213; Speed Sp Worthington vs. Crawford.</p> <p>2 Met., 576; Trustees of Owensboro vs. Webb.</p> <p>MSS. Opn., June term, 1855; Barbee vs. Speed.</p> <p>Bouvier’s Law Die., vol. 2„ pp. 645-6.</p> <p>Debates of Con. Convention, pp. 110, 402,- 356, 363, . 391-2, 413, 420.</p>

<p>1. Appeals from judgments of county courts, on applications for the establishment, alteration, or discontinuance of ferries, may be prosecuted to the circuit court without supersedeas bond. (Civil Code, secs. 20, 22, i-e.)</p> <p>2. . P., the owner of the land on the north bank of Cumberland river, just below its junction with the South Fork of said river, in Pulaski county, obtained the consent of N., the owner of the opposite bank, for the establishment of ferries to and from said bank across the main stream, and also across the South Fork to the lands of B., who owned the lands above the junction between the two rivers. B. also, at same time, applied for the same privileges from his lands to the opposite bank. Held — That P. was not, and thát B. was, entitled to the ferry across the South Fork. P. did not own the land on either side of said stream. (Mcv. Stat., secs. 4 and 6, chap. 39.)</p>

<p>CASE 33 — PETITION ORDINARY —</p> <p>APPEAL FROM MONTGOMERY CIRCUIT COURT.</p> <p>CITED—</p> <p>Revised Statutes, 2 Stanton, 410.</p> <p>CITED—</p> <p>Revised Statutes, 2 Stanton, 410.</p>

<p>CASE 39 — PETITION ORDINARY —</p> <p>APPEAL PROM BATH CIRCUIT COURT.</p>

<p>I. An auctioneer is primarily deemed the agent of the seller of the goods; but, for certain purposes, he is deemed the agent of both the seller and buyer; as, by knocking down the goods sold to the highest bidder, and inserting his name in a book or memorandum as such, he is considered the agent of both parties, and the memorandum so made by him will bind both parties. (Story on Agency, sec. 28.)</p> <p>'2. Unless an auctioneer discloses the name of his principal when he sells, he will be regarded as the vendor himself.</p> <p>3. If, while an auctioneer is selling the goods of one man, another procures him to sell his goods, without informing him whose they are, it is a fraud both on 1he auctioneer and on the bidders, such as would entitle him to whom the goods were knocked down to repudiate the sale upon the discovery of the fraud.</p>

<p>1. “I devise to my daughter, Adeline B. Tunstall, forty-two acres of land whereon I reside, to hold to herself, said Adeline, and her heirs, in fee simple, subject to the following conditions and restrictions: The forty-two acre tract shall, in no way, be disposed of, by deed of gift or sale, by her, until she arrives at the age of thirty-jive years.” Held— That the limitation on the use was not inconsistent with the fee, and was therefore valid, although the limitation is only against her own voluntary act of alienation, yet, as a decretal sale could not be legally made without her consent and her act, the interdiction constructively applies to any such, sale, unless for payment of debts for which she might be legally bound; and as it does not appear that she owed any such debts, the first decree obtained on the petition of her husband, by her consent, to sell so much of the land as was necessary to pay debts, was unfounded and unauthorized; and that the last decree obtained on the petition of her husband, by her consent, to sell the land as beneficial to his wife, under the provisions of article 5, chapter 86, of the Revised Statutes, was also erroneous.</p> <p>2, The highest bidder for land at a decretal sale being ruled, to show cause why he refused to comply with his contract, responded by showing that the land was not subject to sale. — The rule was properly discharged.</p>

<p>CASE 42 — PETITION ORDINARY —</p> <p>APPEAL PROM PRANKLIN CIRCUIT COURT.</p> <p>CITED—</p> <p>Edwards on Bills, 405, 383, 272, 430.</p> <p>2 Broad. Sf Bing., 168; Rowe vs. Young.</p> <p>1 Met., 643; Rogers vs. Poston.</p> <p>Byles on Bills, 149.</p> <p>Story on Bills, secs. 239, 240.</p> <p>3 Kent, 6th ed., p. 86.</p> <p>1 Parsons on Notes and Bills, pp. 351, 352.</p> <p>25 Eng. Law and Eq. R., 123; Burchfield vs. Moore.</p> <p>CITED—</p> <p>1 Met., 647; Rogers vs. Poston.</p> <p>Edwards on Bills and Notes, p. 94.</p> <p>2 Parsons on Bills and Notes, pp. 558, 559.</p>

<p>CASE 43 — MOTION—</p> <p>ON MOTION FOR A RULE AGAINST TIIE CHANCELLOR OF THE LOUISVILLE CHANCERY COURT.</p> <p>CITED—</p> <p>Adams' Equity, p. 774.</p> <p>Story’s Equity, secs. -833, 337-9, 388-9, 779a, 7796.</p> <p>Brown’s Legal Maxims, p. 86.</p> <p>'7 Johns. Chy., 162; Lansing vs.. Stedmboat Co.</p> <p>Hoplc. R., 135; Deklyn vs. Davis.</p> <p>4 Johns. Chy., 21; Stoner vs. Mann.</p> <p>6 Vcscy, 51; Pillsworth vs. Hopton.</p> <p>Civil Code, sec. 162.</p> <p>4 Met., 127; Taylor vs. Moran.</p> <p>Daniel's Cliy.' Practice, p. 1681.</p> <p>MitforcPs Eq. Pl.,p. 102, note o.</p> <p>9 B. Mon., 79; Morgan vs. Hart.</p> <p>7 Gill, 342; McLellan vs. Crooks.</p> <p>14 Arkansas, 515; Biscoe vs. Tucker.</p> <p>1 Wisconsin, 100; Miln vs. Mcdbury.</p> <p>6 B. Mon., 638 ; Gorham-vs. Luckett.</p> <p>CITED—</p> <p>Civil Code, sec. 902.</p> <p>■ 16 Arkansas, 181; Cunningham vs. Ashley.</p> <p>9 B. Mon., 80; Morgan vs. Hart.</p> <p>7 B. Mon., 653; Kane vs. Pilcher.</p>

<p>1. T. devised a liouse and lotto G. and his wife, the testator’s daughter, payment therefor by T. being acknowledged in the will. G. qualified as executor of the will, and acquiesced in the devise to himself and wife jointly. G.’s wife was (hereby invested with title to, and became the owner of, one half of the house and lot.</p> <p>2. An executor being requested in the will to raise two minor legatees, using the interest on their legacies of six hundred dollars each, as far as it would go in so doing, is not chargeable with interest on the legacies until after he ceased to provide for them.</p> <p>3. One of three sureties in a guardian’s bond moved for counter security, and was released by t.he county court upon the guardian’s executing a new bond with two other sureties. The two other sureties in the first bond taking no steps to be released, are presumed to have acquiesced, and still remain liable jointly with the sureties In the new bond.</p> <p>4. A release of one co-obligor by order of court as an act of the law and authorized by it, stands on different principles to a release by the voluntary act of the obligee.</p> <p>5. In an action on a guardian’s bonds, where more than one cf the sureties therein were made defendants, and served with process, it was error in the circuit court to render a judgment for the aggregate amount against one of the sureties who contested his liability, and no judgment against the other sureties who made no defense.</p>

<p>CASE 45 — PETITION EQUITY —</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>CITED—</p> <p>Act of Feb. 27, 1849 ; Act of March 4, 1850.</p> <p>Act of March G, 1850.</p> <p>. Act of Feb. 15, 1864, Sess. Acts 1863-4, p. 387.</p> <p>Act of Feb. 9, 1865, Sess. Acts 1865,^3. 219.</p> <p>4 Indiana, 86; Orr vs. Baker.</p> <p>10 Howard, 393; Phila. Sf Wil. R. R. Co. vs. Alaryland.</p> <p>4 Peters, 514; Providence Bank v>. Billings, <fc.</p> <p>10 New Hamp., 138; Brewster vs. Hough.</p> <p>24 Penn., 229; Hospital vs. Philadelphia.</p> <p>10 How., 534; East Hartford vs. Hartford Bridge Co.</p> <p>8 Iiow., 569, 581; Alills vs. St. Clare Co.</p> <p>6 Wheat., 593 ; Goszlcr vs. Corporation of Georgetown.</p> <p>5 Cowcn, 542 ; Pres. Church vs. City of New York.</p> <p>7 Cowcn, 58 ; Coats, fyc., vs. Alayor of New York.</p> <p>11 Peters, 420; The Charles River Bridge Co.</p> <p>16 Blow., 369 ; Ohio vs. Knoop.</p> <p>16 How., 416; Ohio Life Sp Trust Co. vs. Deholt.</p> <p>Amr. Law Reg., May, 1868, p. 390; Rowe vs. Washington University.</p> <p>24 How., 300 ; Christ Church Hospital vs. Philadelphia.</p> <p>Constitution of Ky., sec. 1 of art. 13.</p> <p>Revised Stat., 1 Slant., p. 262.</p> <p>2 Rhode Island, 464; P. Sp W. R. R. Co. vs. Wright. 2 Rhode Island, 21; Providence Gas Co. vs. Thurbcr.</p> <p>2 Bland's Chy. R., 145.</p> <p>9 Met. {Mass.), 202; Boston Water P. Co. vs. City of Boston.</p> <p>2 Pierre Williams, 127; Drybcttcr vs. Bartholomew.</p> <p>2 Ycscy, 652; Buckcriclge^ vs. Ingram.</p> <p>7 B. Mon., 160; Louisville Sp Portland R. R. Co. vs. Commonwealth.</p> <p>1 Bush, 250; Lou. Sp Nash. R. R. Co. vs. Commonwealth.</p> <p>CITED— ?</p> <p>Session Acts 1848-9, p. 384.</p> <p> Charier of the Lexington Sp Covington R. R. Co. </p> <p>Session Acts 1849 — 50, pp. 378, 580.</p> <p>Session Acts 1863-4, pp. 387, 389.</p> <p>2 Met., 172; Bullock vs. Curry.</p> <p>Session Acts 1865, pp. 219-20.</p> <p>1 Rcclficld on Railways, 608-9.</p> <p>18 B. Mon., 431; Winslow vs. Phillips.</p> <p>2 Red field on Railways, 533, 392, 583.</p> <p>3 Howard, 133 ; Gordon vs. Appeal Tax.</p> <p>16 Howard, 365; Ohio vs. Knoop.</p> <p>18 Howard, 331; Dodge vs. Woolscy.</p> <p>15 B. Mon., 353 ; Sage vs. Dillard.</p> <p>'26 Penn., 242 ; 16 Howard, 386.</p> <p>37 Penn., 340; Iron City Bank vs. Pittsburg.</p> <p>2 Harrison's R., 80; Stub vs. Berry.</p> <p>3 Zabriskic, 529; State vs. Mintcr.</p> <p>32 New Hanvp., 484 ; Pierce vs. Emery.</p> <p>23 Howard, 117; Pennock vs. Coe.</p> <p>4 Met., 201; Bardstown cj- Louisville R. R. vs. Wickliffe.</p>

<p>A contract to pay one a consideration to induce him to administer upon the estates of the obligor’s father and mother, is not prohibited by law or 'public policy. The consideration» is a good one, and the contract enforceable.</p>

<p>CASE 47 — PETITION ORDINARY —</p> <p>APPEAL FROM MERCER CIRCUIT COURT.</p> <p>CITED—</p> <p>Civil Code, sec. 128.</p> <p>5 13. Mon., 391; Graves vs. Sayre.</p> <p>4 B. Mon., 365 ; Spalding vs. Scanland.</p> <p>3 Dana, 204; Snyder vs. Hiatt.</p> <p>1 Dana, 279.</p> <p>CITED—</p> <p>Civil Code, sec. 128.</p>

<p>CASE 48 — PETITION ORDINARY —</p> <p>APPEAL PROM MARION CIRCUIT COURT.</p> <p>CITED—</p> <p>1 Parsons on Contracts, p. 586.</p>

<p>The recognition and enjoyment of an abortive allotment of dower, although it was not altogether eligible and just, for more than twenty years, with their presumed knowledge, precludes purchasers, subject to the dower, from changing or disturbing the boundary so defined.</p>

<p>CASE 50 — 'TRESPASS—</p> <p>APPEAL FROM MARION CIRCUIT COURT.</p> <p>CITED—</p> <p>Story on Agency, secs. 308 — 19.</p> <p>13 Howard, 115.</p> <p>2 Crunch, 170 ; Little,, fyc., vs. Bárreme, Spc.</p> <p>Session Acts 1867, chap. 1571.</p>

<p>CASE 51 — PETITION EQUITY —</p> <p>APPEAL EEOM MERCER CIRCUIT COURT.</p> <p>CITED—</p> <p>Revised Statutes, sec. 6, art. 4, chap. 47; and sec. 9, art. 4.</p> <p>18 B. Mon., 864; Driskill vs. Hanks.</p>

<p>CASE 52 — PETITION EQUITY —</p> <p>APPEAL PROM HENDERSON CIRCUIT COURT.</p> <p>CITED—</p> <p>Revised Statutes, sec. 26, 2 Stanton, 230.</p> <p>18 B. Mon., 650-3; Chapman vs. Stockwell.</p>

<p>CASE 53 — PETITION ORDINARY —</p> <p>APPEAL FROM UNION CIRCUIT COURT.</p> <p>CITED—</p> <p>3 Metcalfe, 80 ; Hutcheson vs. Blakcmore.</p>

<p>1. Belden and Calhoon made an executory exchange of houses and lots, to be consummated in November, 1862 — possession was mutually delivered before the day fixed by the contract, and before that day the house obtained from Calhoon was destroyed by fire while occupied by, but without the fault of, Belden’s family. In a suit by Calhoon for a specific performance of the contract by conveyances, Belden denied the sufficiency of Calhoon’s title, and claimed a rescission. The contract is rescinded, because of Calhoon’s failure to establish such a , title as Belden was bound to accept.</p> <p>2. The legislative act establishing the town of Bradfordsville, is a conclusive recognition of a grant by the Commonwealth of the legal title thus appropriated; and therefore, in showing a derivative title to a lot in said town, the production of a patent was not necessary.</p> <p>3. Allegations, in a cross-petition, that plaintiff had not a good title, is tacitly admitted by a failure to answer.</p> <p>4. The burning of the records of the clerk’s office legalized secondary evidence, yet it did not dispense with the original conveyances or proven copies. '</p> <p>5. The defendant is not bound to accept plaintiff’s conveyance, without such proof of it as will arm him with the recorded means of vindicating its .validity in after times.</p>

<p>CASE 55 — PETITION.ORDINARY—</p> <p>APPEAL EROM MERCER CIRCUIT COURT.</p> <p>CITED—</p> <p>1 Handy, 434; Evans vs. Hall.</p> <p>2 Handy, 229; Roots vs. Nye..</p> <p>CITED—</p> <p>10 B. Mon., 241; Nolen vs. Citric.</p> <p>7 B. Mon., 192; 9 Dana, 47; 3 Dana, 597.</p> <p>1 B. Mon., 304; 1 Mon., 103; 3 B. Mon., 587.</p> <p>9 B. Mon., 55; SB. Mon., 38.</p> <p>3 B. Mon., 122; McFadden vs. Finnell, &¡c.</p> <p> Littell’s Select Cases, 229. </p> <p>4 Met., 52 ; Civil Code, sec. 161. '</p>

<p>CASE 56 — PETITION ORDINARY —</p> <p>APPEAL FROM LINCOLN CIRCUIT COURT.</p> <p>CITED—</p> <p>Civil Code, sec. 222, subsec. 3; sec. 221, subsec. 6.</p> <p>1 Smith’s Leading Cases, side p. 52, top p. 121.</p> <p>Bac. Abr., “ Inns,” C., 5.</p> <p>Sol., 388; Park hurst vs. Foster.</p> <p>CITED—</p> <p>Civil Code, secs. 12, 239.</p> <p>Story on Bailments, secs. 475-6-7.</p> <p>Act of March 9, 1854, 1 Stanton, 496.</p>

<p>CASE 57 — PETITION ORDINARY —</p> <p>APPEAL PROM WASHINGTON CIRCOIT COURT.</p> <p>CITED—</p> <p>13 B. Mon., 404 ; Hord vs. Chandler.</p> <p>MSS. Opn., Dec., 1853; Coil vs. Howard.</p> <p>CITED—</p> <p>3 Metcalfe, 509 ; Anderson vs. Watson.</p> <p>Civil Code, sec. 161, and Myers' notes to this section.</p> <p>4 Metcalfe, 130; Taylor vs. Moran.</p>

<p>1. An order of ,the circuit court overruling a motion to set aside the verdict of the jury, when no judgment has been rendered on the verdict, cannot be considered by the court of appeals for want of jurisdiction.</p> <p>2. To make a surety in a bond to release attached property a competent witness for the defendant in the attachment, by the substitution of ¡mother surety, ike court must make an order discharging him from liability. Tue’ surety remains liable uutii this order is made.</p>

<p>CASE 59 — APPEAL—</p> <p>APPEAL FROM J3SFFERSON COROT OF COMMON PLEAS.</p> <p>CTTED—</p> <p>Civil Code, secs. 849, 853.</p> <p>Myers' Code, pp. 711, 712.</p> <p>CITED—</p> <p>Civil Code, sec. 853.</p> <p>2 Marshall, 460; Bledsoe vs. Cassady.</p> <p>6 Mon., 34-5; Sutcr vs. Cardwell.</p> <p>Ú J. J. Mar., 137-8; Miles ns. Reed.</p> <p>4 J. J. Mar., 366; Field vs. O’Brien.</p> <p>5 Dana, 21; Arnold vs. Shields.</p>

<p>CASE 60 — ‘PETITION EQUITY —</p> <p>APPEAL FROM HENRY COUNTY COURT.</p> <p>CITED—</p> <p>6 Mon., 366; 3 Mon., 321; Mason vs. Chambers.</p>

<p>CASE 61 — PETITION—</p> <p>APPEAL PROM KENTON CIRCUIT COURT.</p> <p>CITED—</p> <p>‘Session Acts 1849-50, p. 239.</p> <p>Session Acts 1863 — 4,p. 306.</p> <p>Session Acts 1859-60, vol. 2, p. 632.</p> <p>18 B. Mon., 41; Frankfort Bridge Co. vs. Frankfort.</p> <p>4 Dana, 154; Kcasy vs. Louisville.</p> <p>Session Acts 1865, vol. 1 ,p. 412.</p> <p>CITED—</p> <p>Charter of Covington of March 2, 1850, and secs. 1, 2, of Act of Feb. 3, 1864, pp. 8, 9,10, 54, 55, 56, 64, of the published charter aqd ordinances of City of Covington._</p>

<p>CASE 62 — PETITION EQUITY —</p> <p>APPEAL FROM LIVINGSTON CIRCUIT COURT.</p> <p>CITED—</p> <p>1 Marshall, 331; 4 Metcalfe, 147.</p> <p>Ckitty on Contracts, p. 7, sec. 8, and sec. 151.</p> <p>Revised Statutes, 1 Stanton, 208.</p> <p>1 Met., 513; 6 Dana, 301.</p> <p>CITED—</p> <p>14 B. Mon., 644; W.right vs. Arnold.</p>

<p>1., In the absence of both allegation and proof of an ordinance authorizing the digging of the well at the cost of property-holders, and what property-holders, the judgment dismissing the petition was proper.</p> <p>2. The affidavit of the plaintiff's attorney that he did not know of the existence of the general ordinance authorizing the digging of the well at the cost of property-holders within specified distances, until after the hearing and dismission of the suit, was insufficient to authorize a rehearing. It was the duty of the plaintiff and his attorney to know that there was such an' ordinance before bringing the suit.</p>