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HARVARD LAW
UBRARY

VOL. 41— KENTUCKY RB-

FOBT8. (3 BEN. MOM-

KOB.)

'•sKi.'liASifir

; 4

ti.-^,

REPORTS

OF CASES

AT COMMON LAW AND IN EQUITY, .

DBCIOE

THE COURT «i^a*HEALS

OF KENTUCKY.

BY BEN. MONROE,

SEFOBTEB OS THB DECISIOBS OF THB COOBT OF APPXXI.3.

VOL. II.

COHTAiNINS 1KB CUES DECIDED AT THE FALL TEBK, 1841, AND (FBINO tEBH, 1812.

FRANKFORT. KY. ■ ,'r -» C

FKIRTED FOX THE KBPOSTER BT WM. M. TOSS. A ';

1843.

r * ^

TABLE

OF THE

CASES REPORTED IN THIS VOLUME.

I
I

Allison ada Daniel,
Allen, &c. ada Bumes,
Alexander's heiis ads Coppage,
Aimstiong va Hodges et al.
Atkinson va Thayer,
Atkinson m Stewart,
ATcriU's ex*Ts. ada Maxey,

217
246
313
69
348
348
107

378
310
303
89
17
380

Ball ada Lively,

Bank Commonwealth va Patterson,
Bank U. S. ads Johnson,
Bank Kentucky ads Kouns,
Barbaroux ads Philips, Reynolds & Co.
Batchelor vs Hickman et aL
Barnes' adm'r. vs Brashear et al.
Bamet, adm'r. of Towles us Stephens'

adm'r. 446

Baitley ^ al ads Richardson and

Letcher, 328

Basham vs Mears, &c. 528

Beatty& Biggs aa« Ward, 260

Bell et ah va Shrock, 29

Beny va Rogers, 308

Belt, Q. ^l.ada Castleman, 157

Bell et al. ada Clark et al. 1

Bishop et al va McNarey et al 132

Boone et al. ada Montgomery, 244

Boyce's ex'x. va Waller, 91

Bowles et al va Shoenbeiger, 372

Same va Clark, 372

Bohannon's heirs »s Sthrcshlcy'.^ ex'rs. 437

Burks, &c. rs Howard, 60

Bumes vs Allen, &e. -10

Busey va Hardin, &c. 407
Blanton's ex'rs. et al ads Common-
wealth, 393
Blevins & Cavins va Sympson, D. S. 463
Black, &c. va Lackey, 257
Bradley ada Byrd, 239
Branamon ada Fish, 379
Brashear et al ada Barnes* adm'r. 380
Blythe a al ada Rodes, 335
Breckenridge et al ada Johnson, 301
Brizendine & Hawkins vs Frankfort

Bridge Company, 32

Brown vs Young, 26

Byrd vs Bradley, 239

Calk OS Francis' adm'r. 42

Calk vs Orear, 420

Cain et al ads Hardin, ^ 56

Carter ads Savage, 512

Castleman va O. & 1. Belt, 157

Caufman va Sayre et al 202

Chamberlain ads Atkinson, * 348

Chancellor va Vanhook & Brooking, 447

Christopher va Covington & Smith, 357

Clark et al vs Bell et al i

Clark ada Bowles et al 372

Clark vs Young et al 67

Clarkson ads Fugate, 41

Clarkson ad« Tibbs' heirs, 34

Clay ads Trustees Tran. University, 385

Collett vs Jones & Hall, 19

Collins vs City of Louisville, 134

Collins et al ads Downing's heirs, . 95

Colyer's adm'r. ads Cook, 71

Cook vs Colyer's adm'r. 71

TABLE OF CASES.

Commonwealtli foi &c. ts Kelly et al
City of Louwville vs Hiatt et aJ.
City of Louisville aiU Collins, .
Combs vs Tarlton's adm'r. and heijs,
Coopei ads Cryer,
Commonwealth vs Bl anion's ex'ois.

and heirs.

Same ads Duncan,

Same ads Eva its,

Colton, &c. ads Lougee, &c.
Commonwealth, for Touiman and

wife vs Heaverin et al.
Commonwealth vs Jackson,

Same ads Overshiner,

Same ads Ross,

Same vs Luck,

Coppage vs Alexander's heirft,
Covington & Smith ads Christopher,
Cox ads Hoskins,
Cox ads Taylor,

Crab's heirs a^is Grei^ory's hfir*,
'Craddock i» Hancock,
Craddock ts Hundley,
Craig vs Prather,
("ryer vs Cooper,

Daniel vs Allison,

Davis ads Kouns,

Davis et al. ads Wood row,

Davis cs Lee,

Dickens ts Williams ti al.

Dicken ads Griffith,

Downing*s heirs vs Collins et al.

Donaldson, &c. ads Dudley,

Dudley vs Donaldson, &c

Duncan vs Commonwealth,

Duvall t» Waggener ei ah

Dyer vs Meais, &c.

Drake ads Franklin M. & F. In**. Com.

EUidge, &c. vs Straughn,
Evans et al. ads Morris,
Evarts vs Commonwealth,
Ewin vs Ware et al.
Ewing & Conner vs Gist,

459

177

134

Faris vs Lewis,

375

191

Fenwick's adm'r. ts Macey,

469

293

Findley and wife, Ac. i« Patter-on'a

executors and de\ i'^ees,

393

Fish vs Branamon,

379

281

Fitzpatnck oJc; Wuodard,

Fore ads Strader,

1-22

115

Frazier ads Stephens,

250

Fraiieib' adm*r. ads Calk,

126

Frankfort Bridge Company aJs Briz-

402

endine and Hawkins,

3-J

344

Franklin Marine and Fire Insurance

417

Company vs James G. Drake,

296

Fry*s cx*ors. r* Throckmorton,

450

313

Fug.nte r? Clark -4 HI,

357

306

429

234

Gale^ and wife aJs Sliaefer,

453

389

Garrabranl v^ Vaughi^

327

113

Gibson ads McGee,

353

Gist ads Ewing dc Conner,

465

293

Goodloe vs Roiles, &c.

Gore OS Pettit and Ros.-i,

Gore vs Ross and Pettit,

299

Gray's heirs ads Gray,

200

217

Gray and wife vs Patton,

278

Gray vs Gray*s heirs.

200

298

Gregory \s heirs vs Crab'<«hcir-»,

231

300

Griffith TS Dicken,

374

Gnibbs ads Tipton,

20
95
151
151
281
183
528
47

81
84
55
65
465

Haggin vs Hapgin, 31 7

Hall, Patlie et al. ads Paltie et al. 461

Hancock ads Craddock, 389

Hanna ads Rowland & Riddle, 129

Hardin, &c. ads Biisey, 407

Han] in vs Cain et al. 56

Hardin ads Helm, &c. 231

Hardin ads Waggener, 153

Heasley ads Reed, 254
Heaverin et al. ads Commonwealth,

for Touiman and wife, 126

Helm, &c. vs Hardin, 231

Hyatt et al. ads City of Louisville, 177

•Hancock is improperly styled appellant in the body of this book, it was Craddock who
appealed.

TABLE OF CASES.

Kickmaii tt al. ads Balcliclur,
Hood, adm'r. of Bradford vs Link,
Hodges et al. ads Armstrong,
Hoskins vs Cox,
Hoskiiis v8 RobeitSy
Howard ads Burka, &c.
Howard tis Jones,
Hudgens et al. w Jordan,
Hughes et al. ads Page,
Hundley ads Graddock,

306

263

526

439

113

Jackson ads Commonwealth, 402

Jackson wWeisiger, 214
James 6. Drake ads Franklin Marine

and Fire Insurance Company, 47^

January & Houston vs Poyntz Aal 404

Johnson t» Bank U. S. , 310

Joiinson ns Breckenridge et al. 301

Johnson ads Thornton, 459

Johnson vs Welby & Alexander, 122

Jones & HaU ads Collett, 19

Jones ads Morehead, 210

Jones ads Howard, 526

Jordan ads Hudgens et al. 44

Kelly et al. ads Commonwealth, 459

King's heiis vs Morris & Snell, 99

Kouns vs Davis, 278

Kouns 119 Bank Kentucky, 303

Logan, Ac-lVirnpike Road Company

vs Pettit, 428

Logan vs Lc^an, 142

Lougee, &c. vs Coiton, &c. 115

Luckett et al. vs Triplett's adm*r. et al. 39
Luck ads Commonwealth, 296

Macey ads Fcnwick's adm' r 469

Martin vs Shelton, 63

Maxey vs Averill's ex'ors. 107

Mears, &c. ads Dyer, 528

Means, &;c. ads Basham, 528

McCart vs Lewis, 267

McCrocklin vs McCrocklin, 370

McLaughlin ads McGinley, 302

McGinley fl^ McLaughlin, 302

McGee vs Gibson, 363

McNarey et al. ads Bishop el al. 132

Miller ads Robinson, 284.

Miles ads Sutor, 489

Marriam ei al. vs Yeager, 339

Mize vs Noland, Atta &c. 295
Montjoy and wife vs Lashbrook ct al. 261

Montgomery vs Boone et al. 244

Moon & Taylor vs Stor>', 351

Moore vs Webb, 282

Moore vs Smith et ah 340

Morehead vs Jones, 210

Morris vs Evans et al, 84

Morris ads Thompson, 35

Morris & Snell ads King's heirs, 99

Lackey ads Black, &c. 257

Lancaster ads Taylor, 429

Langdon ei al vs Woolfolk et al. 105

Lawson ads Partlow et al. 46
Lashbrook et al. ads Montjoy and wife, 261
Lexington and Georgetown Turnpike

Road Company vs Redd, 30

Lee ads Davis, 300

Lively vs Ball, 53

Lewis V8 Love's heirs, 345

Lewis <»28 McCart, 267

Lewis ada Paris, 375

Ugon ei al. vs Taylor, 498

Link ads Hood, adm'r. of Bradford, 37

Love's heiiB ads Le w i^ , 315

Lockridge vs Lockridgp, 257

Narcissa's ex'or. vs Wathan et al. 241
Noland, Atto. &c. ads Misse, 295

Oden vs Taul'9 adm'r. et al, 46

Drear 0^29 Calk, 420

Overshineriw Commonwealth, 344

Page vs Hughes et al. 439

Partlow et al. vs Lawson, 46

Pattie et al. vs Hall, Pattie et al. 461

Patterson's cx'ors. and devisees ads

Findley and wife, &c. 76

TABLE OF CASES.

Patterson ads Bank Commonwealth, 378

Patton ada Gray and wife, 12

Paul & Pogue V8 Williams, 266

Pettit ads Logan, &c. T. R. Co. 428

Pettit & Ross ads Gore, 26

Perrin vs Thunnan, 521
Philips, Reynolds, & Co. vs Barbaroux, 89

Paston et al. ads Taylor and wife, 6

Poyntz et al. ads January & Houston, 404

Prather ads Craig, 9

Ray's vs Woods, 217

Reed's Will, 79

Richardson & Letcher ts Bartley et al. 328

607
254

Stewart & Spring ads Robertson, 321

Stewart <u28 Atkinson, 348

Straughn ads Elledge, &c. 81

Straderes Fore, 122

Sthreshlcy's cx'brs. ads Bohannon's

heirs, 437

Story ads Moon & Taylor, 364

Sutor vs Miles, 489

Sympson, D. S. ads Cavins & Blevins, 463

Richardson & McCabe ads Scott,

Redd vs Heasley,

Reed ads Lexington and Georgetown

Turnpike Road Company,
Reynolds vs Sallee,
Ringo'stJa Ward,
Robinson vs Miller,
Roberts ads Hoskins,
Robertson et al. ts Robertson et al.
Robertson vs Stewart & Spring,
Rodes, 6t.c. ads Goodloe,
Rodes vs Blythe et al.
Rogers vs Rogers,
Rogers ads Berry,
Ross vs Commonwealth,
Ross & Fetiiiads Gore,
Rowland & Riddle vs Hanna,

30
18
127
284
263
236
321
86
336
324
308
417
299
129

Tarlton's adm'rs and heirs ads Combs, 191

Taul's adm'r. et al. ads Oden, 45

Taylor's heirs vs Whiting's heirs, 268

Taylor vs Cox, 429

Taylor ads Ligon et al. 498

Taylor vs Lancaster, 429

Taylor and wife vs Poston et al. 6

Thayer ads Atkinson , 348

Thurman ad« Perrin, 621

Thompson vs Morris, 36

Thompson vs Thompson, 161

Thompson ads Thompson , 161

Thornton V8 Johnson, 469

Throckmorton ads Fry's ex'ors. 460

Tibb's heirs vs Clarkson, 34

Tipton vs Grubbs, 83
Triplett's adm'r. et al. ads Luckett et al. 39

Tnistees Tran. University »5 Clay, 385

Sallee ads Reynolds,

Sayre et al. ads Caufman,

Savage vs Carter,

Scott 99 Richardson & McCabc,

Shaefer vs Gates and wife,

Shelton ads Martin,

Shrock ads Bell et al.

Shoenbeiger ads Bowles et al.

Sneed's heirs vs Waring,

Smith et al. ads Moore,

Starke & Ewing ads Williams' admin-
istrators and heirs,

Stephens vs Frazer,

Stephens' adm'r. ads Barnett, a'lm'r.
of Towles,

18
202
512
607
453
63
29
372
622
340

196
260

146

Vanhook & Brooking ads Chancellor, 447
Vaughn ads Garrabrant, 327

Waggener et al. ads Duvall, 183

Waggener vs Hardin , 1 53

Walker et al. ads Whiting, 262

Waller ads Boyce's ex' x. 91

Ward vs Beaty & Biggs, 260

Ward a<i«Ringo'8, 127

Ware et al. ads Ewin, 66
Wathan et al. ads Narcissa's ex' or. 241

Watson's heirs ads Watson, 74

Waring ads Sneed's heirs, 622

Watson ts Watson's heirs, 74

Webb ads Moore, 282

Welby & Alexander ads Johnson, 122

TABLE OF CASES.

Vll

Weisiger ada Jackson, 214

Whiting's heiis ada Taylor'8 heirs, 268

Whiting et ah va Walkei et al. 262

Wickliffe e« Wilson et ah 43

WiUofReed, 79

Williams ads Paul & Pogue^ 265

Williams et al. ada Dichen, 374
Williams' adm'x. and heiis va Staxke

and Ewing, 196

Wilscm ei aL nda Wickliffe, 43

Woods ada Ray's,
Woodaid va Fitzpatrick,
Woolfolk et al, ada Langdon et al
Woodrow va Davis et al.

217

105

298

Yeager ada Maniam et al
Young ada Brown,
Young et al ada Clark,

339

26
67

JUDGES OF THE COURT OF APPEALS.

The HoH. GEORGE ROBERTSON, Od^ Justice of Kentucky.
The HoH. EPHRAIH H. EWING,

^ Judges.
The now, THOMAS A. MARSHALL

l<3*Tht cases reported in this volume were selected by the Judges, under an Act ot
Assembly which directs that they shall permit the publication (under State patronage) of
such cases only» as, in their opinion, ''establish some new, or settle some doubtful point,
or be otherwise by them deemed important to be reported."

JUDGES OF THE GENERAL COURT.

Specially reqoiied by statute to attend at e^ery Tenn and hold the CouiL

JOHN L. BRIDGES,
MASON BROWN.

All the other Circuit Judges arci also, members of the Court, but their attendance is not

enforced. One Judge will constitute a Court

DECISIONS

OP THE

COURT OF APPEALS

OF KENTUCKY.

FAIili TE:RM«...1841.

M. Clark et al. versus James Bell et al. Chawcbhy.
and Handley vs James Bell et al.

Writs of error to the Barren Circuit. Case 1.

Equity and equitable jurisdiction. Accounts. Vendor

and vendee.

Chief Justice Robertson delivered the Opinion of the Court. September 10.

MicAJAH Clark having enjoined several judgments ob- The case stated,
tained against him for portions claimed as remaining due
of the consideration of a tract of land of about 1100
acres, which he had bought from James Bell, in the year
1814, Bell, in an answer which he made a cross bill, de-
nied the equity asserted by Claik, and prayed for a decree
for enforcing his equitable lien on the land. The Circuit
Court having decreed in Clark's favor a partial credit,
subjected his equitable title to sale, for the ascertained
residue of BelVs judgments, and approved a report made
of a sale of a part of the land under that decree. Clark
appealed to this court and obtained a reversal of that de-
cree and a quashal of that sale: See 4 Dana, 15.

After the sale and before the reversal of the decree,

M. Clark and Bullock, the latter of whom had bought

under the decree, and had given a sale bond with M, B.
Vol. II. 1

FALL TERM 1841. 3

error in this branch of the case, to the prejudice of the ' Clakk^u/.

complaining party. And, in such a case, so longpend- BELLef aZ.

ing and often scrutinized, and in which the vigilant coun- Handlby

sel who assigned the errors have not ventured to suggest BELLet ai

any one specific objection to the amount decreed, or to -n — ;: z —

, , ^ , ^ « , . , , allegation of er-

call our attention to any one fact tending to show a ground ror m the Court

for complaint, we do not feel it to be our duty, without tionsof^suchac-

any such tangible clue, to attempt a more elaborate or to a^mmut^ 'and

minute exploration of a labyrinth which we have, in the particular calcu-

ordinary judicial way, more than once faithfully but fruit- attention is spa-

lessly surveyed. ttAytuT.

We cannot, therefore, reverse the decree on the first *^^-
general objection to it.

2. Th« only pretence for now complaining that the where comprt.

Circuit Judge did not decree a rescission of the contract mu SJ? a^^reTcis-

is the fact that Bdl has not, formally, exhibited his doc- f*°» <>/ ^ Jo«-

tract ol Durcbaflfi

uments of title in this case, although they seem to be of land, does not
filed in another case between M, Clark and himself. f^cT o *tHie gen^
ButM CZari did not, in his original bill, intimate any fof^Jli ""^ ihib"
doubt as to Bell's general title, or require the exhibition fion of tiUe,but
of his documents. In that bill he only made three spe- Mil alleges de*
cific objections to BelVs title to very inconsiderable por- smai/partofone
tions of the entire tract. Nor has either ikf. J?. Clark or ?^ 8f^«'»i «?»ii

tracts purchas-

While any where required an exhibitipn of the documents ed, if this CJourt
of title; or suggested any other objection than such as had of^vendo? as^to
been made by M. Clark: hence it might be inferred pan^it^trt
that all the parties having seen the documents in the other J?^^"?^^ because
suit, and M Clark having enjoyed the undisturbed pos- formally exhibit-
session of nearly all the land ever since the year 1814, defendant^^ime
they all considered the title good except so far as they ^ ^^ *°'
made specific and unavailing objections to it. Never-
theless as M, Clark had. in one of his amended bills,
called for an exhibition of the documents of title in this
case also, this Court said, in its former opinion, that al-
though under the circumstances, it could not then deem
a rescission of the contract a proper consequence of BelVs
omission to translate his documents of title formally to
this case, yet he should be required to file them in form,
and if he should then still fail or refuse to do so, there
might be a decree for rescission. But, as to the ques-
tion of rescission on this ground, the aspect of the case

4 BEN. MONROE'S REPORTS.

ChAAnetai , has been materially changed since the consolidation of

B£LL et ai. the suits, in consequence of the succession of M, B,

HaITdley Clark and White to the rights of M, Clark, These

Bzil\tai ^^^ parties, who alone have since prosecuted the consol-

-idated suits, have neither expressed any distrust as to

BdVs general title, nor required a formal exhibition of
it; and in fact it seems almost evident that a rescission
of the contract, on equitable terms, would be as much
against their will as it would certainly be disadvantageous
if not ruinous to them; hence we cannot yet say that
the Circuit Judge erred to their prejudice or that of their
vendor, M. Clark, in not decreeing a rescission of the
contract on the general ground we have been just consid-
ering, and there is no pretence of any other caiise for a
compulsive rescission.
inTOch caseihe 3. In decreeing a sale of the land, the Circuit Court
quire defendant virtually decreed a specific execution of the hitherto un-
ma™h?biUol?<Jf executed contract of 1814, between Bell and M. Clark,

hu title, that it ^nd though we are clearly of the opinion that the par-
may decide . ° i /. /

wheUieritiasuch ties now seekmg a reversal of the decree have no right

piainant^shouid ^0 complain of the non-rescission of the contract, yet,

farther ^wiiir- nevertheless, it does seem to us that the decree, as ren-

ance, especially dered, was rather premature and improvident.

when defendant -.^ , , , , , ^ , / , . .

apnearstohe in- It wouId have been but reasonable and certainly pru-
wife^°Wing,^^o ^^"^ ^^ wam Bell to make a formal re-exhibition of his
bie"of the Iwds ^^^""^ents of title, unless they were in fact before the
sold in case of Court. And if, as is not improbable, they were consld-
U3 n 8 ea . gr^d ^s virtually filed in or for this case, that fact ought to

have appeared in the record. Without seeing the docu-'
ments of title this Court could not decide with judicial
certainty that the title is such as the vendees should be
required to accept without any further assurance; and es-
pecially as Bell seems to be insolvent, and moreover has
a wife who may survive him and assert her indubitable
right to dower, against which the decree makes no pro-
vision, and BelVs warranty would afford no adequate se-
curitv.
vwiere vendor If the documents of title had not been inspected by
Snd Seeks to sub*- the Circuit Judge in this case, the production of them
thVpaymwt of ^^S^^^^ ^ave been required. And if, on inspection, the
tht coMidera- title had been found perfect or secure, as may be strongly

FALL TERM 1841.

presumed to be its condition, then it would have been
proper to make a decretal order warning Bell to exhibit
in court, on a designated day, a suflScient conveyance,
with a proper certificate of his wife's relinquishment,
and of the registration thereof in the proper County Court
office, and warning also the opposite party to deposit
in court, on the same or a succeeding day, the amount
doetojBcM; and upon the filing of such sufficient con-
Tcyance, and the failure on the other side to make the re-
quired deposit or payment, it would have been perfectly
equitable to subject the land to sale, and thus terminate
forever this vexatious and almost interminable contro-
versy.

Upon this third and last point only, we are inclined to
remand the case for further proceedings.

Decree against Handley affirmed, and decree for sel-
ling the land reversed, and cause remanded for such fur-
ther proceedings and decree only as shall be necessary
and proper according to the foregoing opinion, and for
the purposes therein indicated.

Owsley, for plaintiffs.

Taylor 6l wife

V8.

PosTON et al,

lion, it is pro-
per for the Court
to require him by
a given day, to
exhibit in Court
a sufficient con-
veyance, duly ac-
knowledged with
proper ceilifi-
cate of relin-
auidhment of
dower by the
wife, if there be
one, which being
done, to require
vendee to depos-
it in Court, oh a
succeeding day,
the amount due
on the contract,
and in case of
failure to make
such deposit,
then to order a
sale to satisfy the
sum due on the
purchase.

Taylor and wife vs Poston et al.

Error to the Todd Circuit.
Conveyances in trust Descents. Lands and slaves,

JrDoi Marshall delivered the Opinion of the Court — ^Judge Ewino did

not sit in the case.

This bill was filed by Taylor and wife to obtain a divis-
ion of certain slaves of which Sally Ann Poston died
possessed. The slaves, together with a small tract of
land, had been conveyed by Sandford Poston, the father
of Sally Ann, in trdst for the sole use and benefit of his
wife and her heirs, with certain powers of disposition
and appointment, in default of which, if she died before
her husband, the property was to descend to her heirs,
but if she survived her husband, she was to have it abso-
lotely, freed from the power of the Trustee. She died

Chancery.
Case 2.

September 10.
The case stated.

6 BEN. MONROE'S REPORTS.

Taylor & wire before her husband, leaving an infant daughter, Sally

PosTON et aL Ann, her only child, who afterwards died under five years
~ of age, and of course unmarried and childless, but leav-
ing her father still surviving, and also several uncles and
aunts, by her mothers side, of whom the complainant,
Mrs. Taylor, is one.
Grounds relied '^**® ground on which the complainants base their claim
on in complain- in their Original bill is, that the slaves descended to the

heirs of the decedent by the mother's side and not to
the father. This ground is attempted to be maintained
in argument by contending: 1st, That by operation of
the 38th section of the act of 1798, to reduce into one
the several acts respecting slaves, &c. Slat. Law, 1478,
as applied to the deed of trust from Sandford Poston,
the slaves therein conveyed, with their inciease, were
annexed to the land, so as to follow the same course of
descent; 2d, That the land and slaves came to the dece-
dent, Sally Ann, by descent or purchase from her mo-
ther; and 3d, That the descent of the land being regulat-
ed by the act of 1796, Stat, Law, 562, the 6th section
of which excludes the father from inheriting the land of
the child derived by purchase or descent from the mother,
if there be any brother or sister of the child or mother
living, the brothers and sisters of the mother, to the ex-
clusion of the father, are in this case the preferred heirs
of the land and also of the slaves annexed to it.

Whether if the two first of these propositions were ad-
mitted, the conclusion would necessarily follow as con-
tended for, need not be decided, for it is certain that if
either of the two first positions be untrue, as applied to
this case, the conclusion must fail, and we are clearly of
opinion that both of them are not, and indeed cannot be
true.
The 38th section The 3Sth section applies in its terms to such deeds or
to deduce* ^into ^^^^^ ^'^'X ^ create estates for life or lives, in land, and
one Uie Beverai also convey slaves. If, as we are inclined to think is the
slaves, &c. Siau case, this deed creates an inheritance in Mrs. Poston and
plies inlt^terms ^0^ * mere life estate, then the section does not apply,
only to such ^nd although the land and slaves all descended to Sally

deeds or wills »« . ..^ ° « , , ,

create estates Ann Poston from her mother, there was no annexation
mia^, and also of the slaves to the land by force of this section, and

FALL TERM 1841. 7

there is, therefore, nothing to take them out of the gen- Tavlor & wiwt
eral law regulating the descent of slaves, which does not Poston et al.
exclude the father, and subject them to the sixth section convey slaves,
of the act of 1796 regulating the descent of lands, which p?/^°conveVS:
does exclude the father, when the land descends from cesoftheinheri-

tance, ihe deed
the mother. in thU case giv-

If, on the other hand, this deed creates a life estate in Tf5i^?ta^ice.
Mrs. Poston, and if it be further conceded that, there- i^and and slaves

conveved bv tlifi

fore, the 38th section applies to it, and because the land husband in trust
and slaves are conveyed in the same manner, and in all [he^ife "go^eiy^
respects subject to the same limitations, annexes the *R<\^ ^^^ i^cIm,

1 11111 II I ^^^ power of

slaves to the land so that they must both pass to the same disposition &ap.
persons, then it would follow that as Mrs. Poston had ?iui«*Smakewiy
no estate of inheritance in her, but only an estate for her Sf^s^^eJ^lnr^an
life, her daughter did not, and could not, derive the es- infant who tbere-
tate by descent from her, and she certainly did not derive the husband of
it from the-mother by purchase, for she did no act by {her'^foieTnfe^t
which it was transferred from her, or from any other, to stij.1 living, the

Wile s eiL&tAWRs

her daughter, and indeed had no estate continuing after an estate ofin-

her death which she could transfer. And on this hjpo- for^iif^f^hui if u

thesis the daughter must have taken the estate directly onf/^the'utie^of

under the deed of hei father, and by purchase from him ^»e child is de-

underthe description oi heir of her mother; in which deedby purchase

case the father would take by descent from the daughter, ^Sse a?e father

and as the preferred heir, even the land, and the slaves succeeds to the

r ' » whole as heir to

would go to him m the same way, whether annexed to the thechUd—iir^v.
land or not. It is clear, therefore, that whether the 38th
section applies to this case or not, the father of Sally
Ann Poston was her heir as to the slaves, and her uncles
and aunts, by the mother's side, have no interest in them.
This view of the case renders it unnecessary to enter upon
Any consideration or construction of the details of the
38lh section, which has been referred to ; and which is
now, for the first time, so far as we know, since its adop-
tion into the act of 1798, brought up for adjudication and
for practical application to the estates and conveyances of
this country. We deem it proper, however, to remark
that its provisions, taken literally, seem to annex the
slaves to the land indissolubly, and as long as any of the
slaves or their increase remain ; and that conceiving this
feature to be wholly inconsistent with the present policy

8 BEN. MONROE'S REPORTS.

Tatlor & wifb' of the Slate, and the actual exigencies and transactions
PosroN etal. of society with regard to this species of property, it is pos-

' sible the section was introduced from a former statute

through inadvertence, and has been allowed to remain un-
modified on the statute book, rather because having never
been attempted to be practically applied, it has remained
unnoticed in modern times, than because [its provisions
continued to meet either the legislative or the public appro-
bation. We should be disposed, therefore, to apply it
only to those cases which come ceitainly and necessarily
within its terms — ^and when it does apply, to extend its
operation no farther than its terms certainly and necessa-
rily require. And we are not to be understood as now
deciding, that upon comparison with other statutes and
principles, whose obligatory force is unquestionable, this
38th section is properly erUitled to any operation in any
case.

It remains to say, in relation to the case before us, that
after the suit had proceeded for some time upon the
claim, as set up in the original bill, in which the com-
plainants denied all right of the father of Sally Ann Pos-
ton, they filed amended bills, in which they claim an in-
terest in the slaves, in consequence of a purchase by one
of the defendants from Sandford Poston, made before the
suit was brought, and which is denounced in the original
bill, but which, in the amended bills, is alleged to have
been made for the benefit of the other uncles and aunts of
Sally Ann, by agreement, or upon a trust implied from
the conduct and relation of the parties. But although it
seems that the purchase was probably made with a view
that such of the uncles and aunts aforesaid, as would
agree to share the burthens and responsibilities growing
out of it, should also share its benefits — and although it
should be deemed to be inferrible, that they, and espe>
cially the camplainant, Taylor, had a right, within rea-
sonable time, to claim the benefit on the indicated
terms. We are of opinion that he has not only forfeited
any claim to such benefit by refusing to comply with the
terms on which it was offered to him, and by failing to
ofifer others of a character consonant with justice and the
nature of the transaction, but that he should be regarded

FALL TERM 1841. ^

as having actually renounced it until it is too late for him Craw
to claim it, and that he has not even in this suit, put him- Prathbr.
self in a proper attitude for enforcing such a claim.

The decree dismissing the bill is, therefore, affirmed.

Owsley, /. T. cf* P. C. Morefuad, for ptlaintiffs ; More-
Juad ^ Reed, for defendants.

L. D, CJraig vs Prather. Chancert.

Appeal prom the Moittgomery Circuit. Case 3.

Parol contracts for land. Vendor and vendee.

JvDOX EwiNO deliTered the Opinion of the Court. September 13.

EzTOGH WiLLouGHBY held two bonds on James Gay, ^**® ®"® ^**« -
for two parcels of land adjoining, amounting in all to one
hundred acres* Willoughby died, having first made his
will, by which .he devised the tract of land to his wife
during her life or widowhood^ and tipon her marriage or
death, to his children. His widow was appointed ad-
ministratrix with the will annexed, and assigned the
bonds of Cray td John Craig, and executed bond with
security to him, conditioned to refund S450, the consid-
eration paid, in case the children of Willoughby should
ever successfully assert claim to the land. The widow
removed to Tennessee and married. Lorenzo D. Craig,
the son of John, was let into the possession of the land
and (he t)onds delivered to him, hut not assigned, the
purchase having been made for him by the father. L. D.
Craig sold the land to the complainant below for $1500
and deGvered to him, without assignment, the bonds on
Gay, and the bond of indemnity executed by the widow,

and executed to him ahond, conditioned to refund $1050«
in case the children of Willoughby ever evicted him from

the land, and delivered to him (he possession.

Prather filed his bill for a rescission of the contract, en- ^J^'J^% ^ *•

... ., tiiT%/T«< . Circuit Court

joimngtwo judgments recovered by L. D. Craig agamst
him for parts of the consideration, charging fraud, and a
pardi contract for the title, which Craig had failed and
Defused to comply with. The Circuit Court dissolved
V«l. II. 2

10 BEN. MONROE'S REPORTS.

c«Ai» the contract, and from this decree Craig has appealed to
Pratheh. this Court.

The answer admits that the contract was for the sale and
purchase of the land in contest, and not barely a transfer
of possession, with a sale of Gay's bonds, such as they
were, with Mrs. Willoughby's bond of indemnity. And
if so, there is no conveyance or pretence of conveyance
of any title to it, nor the transfer, by writing, of the bond
of Mrs. Willoughby to old Mr. Craig, by which Prather
might be enabled to invest himself with the equity, if
any, of old Mr. Craig, as th^ assignee of the bonds on
Gay. Those bonds, though assigned by the widow to
John Craig, have never been assigned by him, nor by his
son, the defendant below, to the complainant, nor is
there any writing by which the equity of John Craig or
his claim to the land, by virtue of his purchase from the
widow Willoughby, has passed to the complainants be-
low, nor any writing by which any obligation within the
statute of frauds and perjuries, rests on him to transfer or
assign his equity to the complainant; nor is there any
such writing binding his son, the defendant, to assign, or
\o procure an assignment; and either of them, if called
on to assign those bonds, might refuse to do so, and if
they did, the complainant could not compel their assign-
ment, nor enforce a transfer of the equity invested in John
Oraig, by the assignment of them to him, if he chose to
rely upon the statute of frauds, &c. Nor could he com-
pel Gay to convey, if, by the assignment to Craig, he
might be willing to do so, if Craig thought proper to re-
sist it by taking shelter under the statute ; so that if the
object of the contract was the sale of the land, and the
transfer or passage, even of the claim of John Craig, held
under Gay*s bonds, the delivery of them without writing
amounts only to a parol agreement as to the terms of the
contract, which cannot be enforced against John Craig
or his son, expressed in a form that would be binding on
them both without their assent, and which furnishes the
complainant with no legal or equitable ground to ask from
Gay a conveyance to himself as the legitimate owner of
even John Craig's claim, though there were no other ob-
jections to his right to do so. And it cannot be believed

FALL TERM 1841. 11

that the parties intended less, by the terms of the con- c«a"*
tract, than to invest the complainant with at least Craig's Pbathvk.
claim to the bonds, and his equity under them. And
the bond of indemnity does not pretend to indemnify the
complainant against the claim of John Craig. But if,
with respect to the bonds, he contracted merely for their
delivery to the complainant, as the means of placing in
his hands the evidence of right to the bonds, and not as
the evidence of a sale of the land, it is very clear that he
promised to procure Gay ' |p make a title to the land,
which he has failed to do.
The bill of the complainant specially and distinctly Where a bill foi

* 'J •'a rescisaioii by

charges that the dekndhui promised and agreed to procure YendeediBtinetiy
Cray to make a title, and this promise was not reduced to mis^^by %Jilox
writing. And the defendant, no where in his answer de- J^IJScefroni an-
nies this charge. He says that it is untrue that he ever other holdln^thb
promised to make to the complainant any other title than is efaaivelT de-
that which he himself held, &c., but does not deny that toktntoSfime!
he promised to procure Gay to make a title. And in the ^1^^^^^^^^%]
next sentence, he acknowledges that '*he did agree to go cured, wbea de-
with the complainant to James Gay, for the purpose of tract wi'il be re-
leading him in the way in which he might get the tide,'* scmded.
but still does not deny that he promised, in addition, to
procure him to make it. This evasion leaves the impres-
sion on the mind, that the charge is strictly true, and
could not be met by a distinct denial. And one witness,
H. Prather, proves that when the contract was made for
the land, that the complainant asked the defendant for a
bond for the title, and Craig told him "that it was not
worth while to be doing so much writing for nothing, that
he would go with him at any time to get the deed made to
the land, and that the men were willing to make it at any
time." Besides, it is intrinsically probable that suoh was
the promise and undertaking of the defendant. For it
can scarcely be presumed that the complainant, if he
were competent to make a contract at all, could have
agreed to give the sound price of SI 500 for the naked
possession, without title or the means in his hands to ob-
tain a title, or any engagement, or even promise on the
pan of the vendor to procure a title to be made to him.

fiEN. MONROE'S REPORTS.

Gray and wife

Patton.

A parol promise
to coDTey land,
or to procure an-
other to convey,
is equally em-
braced by the
statute of frauds
and cannot be
enforced.

the Chaneellot
vrill not, at the
instance of a
vendee, dissolve
a contract for
land merely on
the ground that
it is parol; pro-
vided the vendor,
not having been

Siilty of shuf-
ing, prevarica-
tion, or delay,
fenders a com-
pliance Tvith its
letms before the
bearing. If ven-
dor do not com-
ply in such time,
the contract
should be re-
tcinded.

We, therefore, conclude that this promise was made,
and that the complainant relying upon it for his title, and
the bonds of indemnity of Craig and Mrs. Willoughby,
against disturbance from the heirs of her late husband,
made the purchase. Without such promise he has no
assurance whatever for a title of any kind. This promise
was in parol and could not be enforced by reason of the
statute of frauds, and the defendant had not procured
Gay to make the title, as he had promised, even at the
hearing of the cause, and nc4 having done so, it alone
presented good and sufficient ground for dissolving the
contract.

It is true, that the Chancellor, at tlie instance of a ven-
due, as complainant, will not dissolve a eon tract for land »
merely on the ground that it is in parol, or not reduced
to writing, provided the vendor, not having been guilty of
sbuiHing, prevarication, or delay, tenders a compliaace
with its terms before the hearings But if be falls or re-
fuses to perform, it presents not only good ground to dis-
solve in Chancery, but good ground to sue and recover
back the entire consideration at law, if it had been paid,
npon the principle of an entire failure of consideration.
For though such contracts are not void, they aie not en-
forcible, and the failure or refusal of the vendor to per-
form, renders the payment a payment without considera.
tion, and which may be recovered back upon an implied
promise to refund.

It is, therefore, the opinion of the Court, that the de-
cree of the Circuit Court be aflSrmed with costs, &c.

Apperson for plaintiiBF; Peters for defendant.

Case 4.

Gray and wife vs Patton.

Error to the Shelby Circuit.
Femes covert. Conveyances, Limitation,

September 13. Chief Justice Bobsrtson delivered the Opinion of the Court

John T. Gray and wife seek the reversal of a judg-
ment of eviction, for a lot in the city of Louisville, ren-
dered against them in an action of ejectment bn the de-

Case stated and
decision of the
Circuit Court.

Ball term i84i. 12

miae of Thomas W. Potion, who claims as only heir of ^ht and mn.
his mother. Patton.

On the trial the lessor exhibited a conveyance from """ ~

the trustees of LauisviUe to Joseph Sanders and from
Sanders to George Wails, the lessor's maternal grand-
father, and a certified copy of his said grandfather's will,
de?isiDg the lot to the devisor's daughter, who was the
lessor's mother; and he also proved that his mother bad
died in December, 1822, and his father in July, 1837.
Gray relied on a deed purporting to be a conveyance of
the lot in 1797f from Samuel Potion and his wife, who
were the lessor's parents, and on sundry derivative con-
veyances under which he ( Gray) and his wife and those
voder whom they claim title, had occupied and enjoyed
it for about forty years. But the only authentication of
Mrs. Palion*B acknowledgment of the deed of 1797,
was a certificate by the clerk of the Jefferson County
Court, showing that in 1806 she had, upon privy exam-
ination, made the statutory acknowledgment before two
Jostices of the Peace for Hardin county, where she then
lesided, and that their certificate, together with the deed,
had been duly recorded as required by law ; and there
being no record proof of any special commission to the
said justices to take the acknowledgment, the Circuit
Judge decided that the conveyance of 1797, with the ter-
tificate of the justices, as certified by the clerk, was insuf-
ficient to prove that Mrs. Paiion had conveyed her legal
title. That decision presents the main question for levis-
ion. But we will first briefly dii^pose of some less im-
portant points involved in the record.

After notice to several persons sued as terre-tenants, Where sereral
and before any service of a common order or an appear. SlJnt** aT terre*
ince by any of them. Gray and wife were made defend ^^^^^> «nd na

1 1 J t- 1 J t ... service of comr-

<nts. And, as the record does not show any privity be- mon order or any
tween those defendants and the tenants in possession, ao^of them, auS
their counsel insists that the judgment against 'Hhe de- to^a^feSdr^and
fendants'* is erroneous. But, however irreeular or inef- the record ihow

. no DTlVllV DCS

lectual, as to the tenants, the proceedings in this respect tween such de-
may be admitted to have been, still Gra^ and tinfe cannot f^^'^J^Z]
have been prejudiced thereby, and cannot, on their writ ^<>"p ** iH<^-

^'^ ' 1 i* mem a«;ain8t

error, urge that as a ground for reversal. Whether such may be er-

14 BEN. MONROFS REPORTS.

Ghay AND WIFE therc is either HO judgmeiit, or an erroneous judgment,
Patton. against the occupants, this writ of error by Gray and
roneous, yet one uoifc alone does not authorize us to decide.
defe^cT'^canno" A copy of the will of WaUs, Certified from a probate
thereof ^^"^^^ court of Virginia, where he resided, was objected to as
A will made in evidence, on the ground that the Virginia court had no
prove°d*a1id^re! jurisdiction SO far as the lot in Kentucky was concerned,
corded before ihe Admitting, as we may, that this objection would be un-
good to ' pass answerable if the piobatehad been since the political sep-
a*copy "from ^e nation of Kentucky ttom Virginia, still, as the will was
^i^^inU^r"'^ ?^ piovcd sud admitted to record in Virginia when Kentuc-
certified, ia evi- ky was a portion thereof, the probate was as efifectual

dence here under , .. u i_ i_ t_ j '^l _i • t • 'ii

the act of 1797. here as it would have been had it been made m LauisvuU

itself: Morgan's adm'r. \s Gaines et al. 3 A. K, Mar-
shall, 614.

The plaintiffs in error also insist that the deed by the
trustees in 1783, was ineffectual for want of sufficient au-
thority and title. But, as the facts bearing on this point
are substantially the same as those considered in the case
of Fiizhugh et al. vs Croghan, 2 J. J. Marshall, 432,
the decision in that case, which we still approve, must
overrule this assignment of error also.

Upon the main andT only remaining question deemed
worthy of consideration, we feel some perplexity.
A feme covert Our predecessors having, more than once, decided
u^uy "pV^he; that under the 4th section of the act of 1797, 1 iS/a/.
estate of inherit- j^ff^^ 440, copied from a Virginia statute of 1786, an
•cknowiedgment acknowledgment before Justices of the Peace, without a
tion"before"two special commission, is insufficient to pass any other es-
p^eaceT' uniws ^^^ ^^ * married woman in land than that of dower; as
they acted under to which the act of 1792 may operate, we do not feel au*
from the county tborized now to inquire whether a less literal interpreta-
iles^an? unless ^io^ would have been more consistent with justice and
«?ch ^^^2J^"^"^ our entire system of legislation on the subject of such
deed and certifi- conveyances; and although it has not, so far as we know,
corded^^n the been hitherto explicitly decided that the registration of
SuiS^Iay!**'**^*** *^® commission, as well as that of the certificate, is re-
quired by the statute of 1797, as indispensable to the
conclusiveness of a conveyance by a feme covert of her
inheritable interest in real estate; yet, as the statute re.
quires the recording of the deed "together with such com-

FALL TERM 1841. 15

mission and certificate,*' and as this court has frequently g«a* and wife
decided that the title does not pass without the prescrib- Pattom.
cd registration of the certificate, we cannot consistently
avoid the judicial conclusion that the title cannot be le-
gally divested unless the commission, when one is neces-
sary, shall have been also, in like manner, recorded.

Had not the statute imperatively required the recording
of the commission, v^e would presume that a sufiicient
one had been issued to the justices who certified the privy
examination in this case; for it would be proper then to
apply the general presumption of law, after so long a
lapse of time, that the official act had been, in all re-
spects, right, except only so far as it might expressly ap-
pear to have been illegal.

But we are not allowed to presume the recording of They wui not
that which the unlost and unmutilated record does not commTssio/Vor
«how to have ever been recorded : nor can we, without ^^j^n 7f "/JSf«
even a suggestion to that effect, presume that the record, cawrt had issued

*n • . .1. J ^ i.»i'* 11^1- X and been lost (as

as certified an this case, does not exhibitall that was ever the law required
recorded in the clerk's office of Jefferson. '^^ ^Sil'Te^

We cannot, therefore, decide that upon this last and Jhk'^ eise^^a'-
priocipal question, the Circuit Judge instructed the jury pears to male
erroneously, unless the 11th section of an act of 1831, 1 compkte^^'and
Sua. Law, 463, applies availably in such a case as this. ^tfon*orp*ll!Sf
So much of that enactment as can be material on that ®^ '^^^ ^^^^
snbject is as follows:

"Sec. 1L BetLfvrlher enacted. That in all cases,
where a deed of conveyance has been heretofore made by
tharon and /erne, and the same has been duly executed,
bat with this defect only, that a dedimus potestaiem did
not issue in the first instance, authorizing the justices to
take the privy examination ot the feme, that the grantor
or those claiming the land, under such deed, may exhibit
a bill in chancery, at any time after the first day of Jan-
uary, one thousand eight hundred and thirty-eight, in the
court of the circuit where the land may be situated : and
upon full and satisfactory proof being made that such
deed has been executed hy baron hnd feme, without fraud
or guile, and that there has been seven years peaceable,
ccntinued and uninterrupted possession under such deed,
since the passage of this act, and that the only defect is

i« BEN. MONROE'S REPORTS.

Ckay AND WIFE thc wEiit of a dtdimus potcslaiem, to take the acknowl-

Patton. edgment and make the privy examination, to decree a

' confirmation of such deed, and to make such other order

as may be necessary to perfect the title. Provided, how-
ever. That ao much of this act as authorizes a suit against
feme coverts, to obtain a due execution of deeds made
without a dedimus poteslatem, or for any defect in taking
the privy examination, shall not be so construed as to
apply to any case where a /erne has commenced suit to
recover her estate or dower in lands, or where soch suit
fehall be commenced within the term of seven years afore-
said, next after the passage of this act.^*

The legislative provision ju«t quoted, contemplated and
embraced such a relinquishment as that which appears
to have been made in this case; and waiving the impor.
tant question whether the legislature could, consistently
with the constitution, have at once legalized such invalid
relinquishments, and whether thereby there would have
been a divestiture of any vested rights, we have no doubt
that an act limiting the right of sueing or taking away,
prospectively, the disability of coverture after a cause of
suit had accrued, should be deemed perfectly constitu-
tional. And if such can be considered to be the con-
structive effect of the 11th section of the act of 1831, the
action might, perhaps, be barred in this case, and the
technical invalidity of the relinquishment thereby cured;
for more than seven years had elapsed from the date of
this statute, before the commencement of the action, and
although the lessor's mother had no cause of action du-
ring her life, because the estate had certainly passed du.
ring the life of her husband, who survived her, neverthe-
less, he died almost a year before the expiration of the
seven yeaxs prescribed by the statute, and thereby a right
of action had accrued to the lessor nearly a year before
the expiration of that limitation.
TheiiihBec. of However, the 11th section has not expressly declared
doe8*^n<rt^ ^Scr ^^** *^^^^ should be such a legal bar: it only authorizes.
7 ycBw, gi^c to after seven years, a suit in Chancery for enforcing such a
auUhmenu of relinquishment by a decree of confirmation, thereby vir-
ofTi6gS*con- tually declaring that after the seven years such relinquish-
weyance, «ad a Ynent might be good and available in Equity. And in a

FALL TERM 1841.

case like this, ia which a cause of action had accrued Batchilor
daring the seven years, ihe Legislature certainly had the Hickmah et aU
power to impart to such a relinquishment validity, either u^ti bar to the
in a court of equity or in a court of law, whatever ques- of^thSlraator^oJ
tion there might be as to the power in a case in which a ^^^^^'
cause of action had not accrued during that statutory pe-
riod. But we aie of the opinion that the provisions of
this section should not be construed as having the effect,
fcr se, of confirming the legal title after the expiration of
the seven years: and consequently, in our judgment, this
enactment cannot operate as a bar to this action of eject-
ment. We need not, therefore, decide the important
question whether the statute, when applied to the facts
now appearing in this case, has made the relinquishment
constitutionally valid and enforciblein Equity.

It is, therefore, considered that the judgment of the^
Circuit Court be affirmed.

Pirtle and T. P. Wi/so/i for plaintiffs ; C. A. Wickliffc
for defendant.

Batchelor t;^ Hickman et al.

Error to the Franklin Circuit.
Cenfession of judgmenL Matters of avoidance.

CiiEr JcsTiCE RoBEBTsoN delivered the Opinion of the Court.

The confession of the action and the judgment thereon,
for the amount of the note, should not, in our opinion,
conclude the judgment debtor as to a credit endorsed on
the note and not noticed in the judgment. Such a gen-
eral confession and judgment may be understood as in-
tending only what would have been understood had there
been a similar judgment by default — that is, that the right
of action merely, was confessed, and that the judgment
on the note was, of course, to be subject to the credit en-
dorsed before and when the judgment was rendered.

There is no pretence in this record for the alleged suspi-
cion that the credit was surreptitiously endorsed by fiatche-
lor siace the date of the judgment, and consequently it
Vol. 11. 3

Chancbr7.
Case 5.

Septetnbet 15.

A eonfession of
jndgmeDt gener-
ally, ill an action
of debt on a note,
Bhould be under-
stood aa a con-
fession of jndg-
ment for the a-
mount of the
note, subject to
the credits en-
dorsed on the
note.

18 BEN. MONROE'S REPORTS.

RirNOLoa seems to this Court that the Circuit Judge erred in not
Sallbb. perpetuating Batcheior's injunction to the extent of the

Matters of avoid- endorsed credit.

proved"^** ^ ^^^' ^® *^® assignees of the judgment do not admit the

allegation that the entire judgment had been discharged
by satisfaction, and as the answer of the judgment cred-
itor's administrator, admitting the alleged payment, but
attempting, without proof, to avoid it by suggesting a
different application of it, cannot conclude the assignees;
there could not, without proof, aliunde, be a decree per-
petuating the injunction beyond the endorsed credit.

Decree reversed and cause remanded for a decree ac-
cording to this opinion.

Todd for plaintiff; Herndon for defendants.

Replevy. Reynolds vs Sallee.

Case 6. Error to the Pulaski Circuit.

Execution. Exempted property.

September 15. Jvdoe Ewino deliFeied the opinion of the CourL

Case stated and REYNOLDS sued out a Writ of replevin against Sallee
ISiltc^urL^ ^"" for a horse. The latter avowed that he was constable,

and had levied executions, which were in his hands

against Reynolds, on the horse. The plaintiff pleaded

that the horse was his only work beast, and not subject

to the levy, to which plea the defendant demurred and the

demurrer being sustained by the Court, and judgment

rendered against him, he has appealed to this Court.

Adeftinexecu. It was settled by this Court, in the case of PhiUips

•rt?'iS^&'oS; and Walker vs Harris, 3 /. /. Marshall. 124, that a de.

sannot prosecute fendant in an execution could not sustain replevin for

a writ of replev- .it

in, aiUiou^h the the property levied on, under an execution ; that such a
on^may be^^ex. proceeding would be a contempt to the Court issuing the
sSrSdeT m" execution. And the statute of 1830, passed about a
cation. month after that decision, and under which statute this

replevin was instituted, re-asserts the common law inhi-
bition. And though the statute of 1830, is repealed by
the act of 1840, Acts 1839^0, p. 223, and this latter
act does not contain the restriction, which was contained

FALL TERM 1841. 19

in the act of 1830, it does not repeal the common law Collbtt
role on this subject, which remains in full force. ^ Jones a Hall.

Judgment affirmed, with costs.

Quarles for plaintiff; Harlan for defendant.

CoUett VS Jones and Hall. Replevin.

Error to the Wayne Circuit. Case 7.

Mortgages, Exempted property. Pleas and pleading.

JcDOB Mabsball deliTered Uie Opialon of the Court September 16.

The 36th section of the general execution law of 1828, Property of a
Slat. Law, 653, subjects to execution the interest of a fht aeVsictio^
mortgagor in such property only as would have been sub. °/^^® IV^i^
ject to execution if he had not mortgaged it; and there- Stat. Lav, 653)
fore the property of a debtor which, by the 13th section cxecuUon doe§
of the same statute, is declared to be exempt from execu- mo^tga^edb/Se
tion, does not, in consequence of being mortgaged by debtor, render it,
him, become subject to execution against him, nor does tv of redemption
his equity of redemption become subject The voluntary lery Asai^e.-Ind
subjection of such exempt property as a security for one ^^ ^ Sii^uJ^an
debt by way of mortgage, is not a renunciation of the action of tres.
privilege of exemption, beyond the regular operation and property which
effect of the mortgage itself. Tf^m^"7e'\^l

The fact alleged in the plea, tKat the mare, for the ^^^^^ ^^,
taking and conversion of which this action of trespass material'
was brought by CoUett, had been mortgaged by him, be-
fore the levy and sale under execution, set forth in the
plea, did not affect the plaintiff's light of action for taking
the mare from his possession and converting her to the
defendants use, if she was his only work beast, and he
was a bona fide house-keeper, with a family, and did not
claim the exemption of any tools as a mechanic. And
as the replication to the plea stated these last mentioned
facts, it was clearly sufficient to maintain the plaintiff's
action and to avoid the effect of the execution, levy, and
sale set up in the plea, and the Court erred in sustaining
the demurrer to it, and giving judgment thereon for the
defendants. The declaration states that the mare was

aO BEN. MONROE'S REPORTS.

' GwFFiTB taken from the plaintiff's possession, and the mortgage
DicKEN. was wholly immaterial.

' The judgment is therefore reversed and the cause re-
manded with directions to overrule the demurrer to the
plaintiff's replication to the defendants second plea, and
for further proceedings conformable to this opinion.
L. Hord for plaintiff.

Ejectment. Griffith VS Dicketl.

B Monroe

m'^no Case 8* Appeal from the Hopkins Circuit.

Presumptions. Possession. Champerty* Evidence*

October 13. Judge Marshall delivered Uie Opinion of the Court.

the cue stoted^ This case was formerly before the Courts and the opin-
ion reported in 4/A Dana, p. 361, is referred to for a gen-
eral statement of the matters in controversy.

Several demises having been stricken from the declara-
tion! the plaintiff^s claim now stands upon the separate
demises of Walter Baker> the patentee of Iwo-thirds of
1500 acres, including the land in contest, and Remus
Griffith claiming 600 acres of the 1500 by deed from the
heirs of Charles Travis, to whom John Dicken, the co-
patentee of one third of the 1500 acres, had conveyed
500 acres thereof by tnetes and bounds in the year 1800,
shortly after the patent issued.

The evidence upon the last trial conduces to prove that as
early as the year 1800, and at the date of John Dicken's
deed to Travis, Travis and James Jordan were in pos-
session of different portions of the 500 acres, and that
Travis and, after bis death, his heirs continued in posses,
sion of their portion, and Jordan and those claiming un^
der him^ continued in possession of the residue until the
fall of 1810, v.hen Christopher Dicken, the present de-
fendant^ entered upon the whole 500 acres, claiming by
purchase from Jordan, from whom he received a deed iii
November of that year.

One witness fixes the 14th of October, 1810, as the
day on which Christopher Dicken first took possession-

FALL TERM 1841. 21

The declaration was served on the 12th of October,
1830.

It does not appear explicitly in what manner Jordan,
and those coming in under him, held the possession prior
to the deed of November, 1810. from him to the defen-
dant. Bat one of the instructions given by the Court
refers to a commissioner's deed and sheriff's deed, as pur-
poiting to convey the land to Jordan, but neither of them
is contained in the record, and a record from the County
Court, read in evidence by the defendant, shows that in
November, 1810, an order was made for the conveyance
of land, by commissioners, to Jordan, in pursuance
of a bond from Travis, alleged to have been produced.

These and other circumstances tend strongly to the
conclusion that Jordan claimed under Travis' title, and
that he did not obtain any transfer of that title under his
bond until after the order of the County Court above re*
ferred to. And no commissioners or sheriffs deed ap*
pearinginlhe record, nothing is to be presumed in re-
gard to the date or validity of either of them.

Assuming then that so far as Joidan claimed the land,
up to November, 1810, he claimed under Travis' title,
looking to his heirs for a conveyance, there was of course no
possession adverse to that litle until within twenty years be-
fore the commencement of this suit — and this would be
the result even if the adverse possession could be regard-
ed as commencing with the entry of C. Dicken, on the
14th of October, 1810. The statute of limitations there*
fore, upon either of these assumptions, furnishes no bar to
^recovery on the demise of Griffith, so far as he is invest-
ed with the title of Travis' heirs. And if, as we think
is the case. Baker's right of entry is barred by the thirty
years possession held under the deed of his co-patentee,
John Dicken, the bar enures to the benefit of that deed
and of the rightful claimant under it, and not in favor of
a defendant who is neither invested with that title nor
shows such a contmued adverse possession as will bar it.
It is true that after Christopher Dicken had conveyed
250 acres of the 500 to John Dicken, one of the original
patentees, J. Dicken re-conveyed the same 260 acres, and
also transferred his entire interest in the 1500 acres to C.

GniFFlTH
V8

Dicken.

BEN. MONROE'S REPORTS.

Gbiffith
ve

DlCKRN.

!nie law will not
presume a deed
iToinan elder pa-
tentee to one
who has been in
DossesBlon for
w years, unless
there be some
proof of an ex-
isting obligation
to convey.

Dicken. But this conveyance conferred upon C. Dicken
no other title* in the 500 acres than he had before; for
John Dicken had previously conveyed all his interest
therein to Travis; and although the deed was not record-
ed the facts authorize the assumption that C. Dicken had
full notice of it.

It is obvious from this general view of the attitude of
the parties, that in the absence of any other title but that
derived under the patent of Baker and Dicken, the plain-
tiff, if Baker's right of entry was barred, was entitled to
recover under the demise from Griffith, the whole 500
acies which had been conveyed to Travis, so far as the de-
fendant, C. Dicken, was in possession thereof, if the deed
from Travis' heirs to Griffith was effectual and to the ex-
tent that it was effectual to transfer their title to the gran-
tee, unless there had been a previous transfer of that title,
or unless there had been twenty years possession adverse
to it before the commencement of this suit, and of which
the defendant could avail himself against the grantee of
Travis' heirs, and if Baker's right of entry was not
barred, the plaintiff had a right to recover on the demise
from him two thirds of the land in possession of the de-
fendant, and the recovery under the other demise, subject
to the conditions above stated, would be proportionably
limited.

Upon several of these points on which the right of re-
covery might depend, instructions were given by the
Court on the defendant's motion, the propriety of which
is questioned, and will be briefly considered.

1st. The defendant having read in evidence a patent
older than that of Baker and Dicken and which covers
the 500 acres in contest; the Court, on his motion, instruct-
ed the jury to the effect that if the defendant, and those
under whom he claims, had been in possession of the
land, claiming it as their own for more than 20 years pri-
or to the commencement of the suit, they might presume
a conveyance of the title under both patents to the defen*
dant. Upon this instruction it is to be remarked in the
first place, that twenty years possession is not always a
sufficient ground for presuming a deed unless from a par-
ty who was previously under some obligation to make it.

FALL TERM 1841. 23

otherwise this presumption would defeat a writ of wright Gbitfith
in every case in which twenty years possession would de- Dickkn,
feat an ejectment, ^ and the additional time given for
bringing the former action would be an unsubstantial
privilege. But as twenty years possession adverse to the
title of the plaintiff would bar the right of entry and
thus defeat his action of ejectment, whether a convey-
ance should or should not be presumed, this inaccuracy
might not be deemed very material if the presumption
had been based upon the hypothesis that there had been
a possession of twenty years adverse to the title of Tra-
vis and his heirs. But as the evidence conduces to prove
that the possession was held under that title until within
less than twenty years before the suit was brought, the
instruction as given enables the defendant to rely upon
Travis' own possession in making out the bar to a recov-
ery on Travis' title, which is manifestly unreasonable and
unjust.

The Court therefore erred, and to the prejudice of the
plaintiff, in giving this instruction.

2nd. The defendant objected to the deed from Travis' A decree of con-
heirs to Griffith, which bears date in October, 1824, as JevSS'grantw!)
being champertous and void, in consequence of his ad- fed^^^ore^me
verse possession of the land attempted to be conveyed, champerty act of
And this Court having decided, in the opinion formerly and eiecuted^by
rendered, that this objection could not prevail in regard ^^^^uJ^d
to the 250 acres conveyed by C. Dicken to John Dicken effectual to paas

J ^ J J XL • X X- .1-. V. . Uie right of auch

and afterwards re-conveyed, the mstruction on this subject aa maj hate ex«
al the last trial was confined to the other 260 acres, and ^^ ***
was to the effect that the deed was champertous and there-
fore void under the act of 1824, as to the last named 2d0
acres, if at the time of its execution the defendant was
in the adverse possession of said 250 acres. This instruc*
tion was erroneous because it excluded from the consider-
ation of the jury the evidence on the part of the plaintiff,
which conduced to prove that the deed was in part execu-
ted by all of the grantors except one, in June, 1824, be.
fore the champerty act of that year took effect; and as to
the grantors who executed it at that time, it was valid and
effectual to pass the title.

24 BEN. MONROE'S REPORTS.

GRiFriTH 3|rd^ ^ third iastruction given on motion of the defen-

DicKEN. dant denies the plaintiff's right to recover the 260 acres*

A conveyance of which had been conveyed by C. Dicjcen to John Dicken»

Jjther^lands,^ ^f unless the jury should believe, from the evidence, that the

which one is in defendant was in the actual possession and occupancy

Uie actual po8- ^ . i

session, will give thereof at the commencement of the suit. And although

actual'^*' posses^ this instruction seems to be abstractly correct, we think

so°" °conveved' *^ ^^^ erroneous and misleading, inasmuch, as the same

where there is no 250 acres having been re-conveyed by John Dickento the

session, which defendant while the latter was in possession of the adjoin-

will warrant e- • oen j iU ^ •— • ^

jectment there- i^g 250 acres, and no Other person was m possession of
for, against such the land thus rc-couveyed, his possession extended, by

construction of law, so as to include the adjoining land
thus re-conveyed. And this possession still existing was
sufficient, even waiving the proof of actual occupancy or
enjoyment, to authorize the recovery of that part of the
land.
A continued ad- 4th. A fourth instruction relating also to the 250 acres

versary posses- ,^ ..■ • •• v

8ion of 20 years last mentioned was, m our opinion, erroneous; because it
me"t. "" ^^^^'" assumes tliat the possesion of that part of the land was

not such as to bar the right of entry under the elder

patent before referred to, when the evidence conduced to

prove and authorize the jury to find that there had been a

continued possession thereof, adverse to the said patent

from the year 1800, for more than twenty years, and in

fact up to the commencement of this suit.

To instruct the 5th. The instruction that '*the plaintiff in ejectment

P&ntlffbi^ej^'' ought not to recover on a doubtful title," seems calculated,

ment ought not ^ithout further explanation,- rather to mislead than to

to recover on a , *^ '

doubtful title;'* enlighten a jury; who undoubtedly have a right in eject-
nothing further . • xi_ j • v i_ l'i«*» j i

saying, is im- ment, as m other cases, to weigh piobabilities and solve
CIvrihe%it"S doubts as to matters of fact. If, in their opinion, the
ejectment, as in preponderance of proof or of rational inference as to any

other cases, to

Ayeigh probabiii- fact on which the title depends be not on the side of the
doubts^asto^mat- plaintiff, they ought not to find for him. And in this
lersof fact. sense only, is the proposition true or safe as an instruc-
tion to a jury.

6th. The sheriff's deed to Calhoun, purporting to con-
vey the title of the defendant, seems to us to have been
entirely irrelevant, but it was not void, although the land
had not been valued. And the Court did not err in re-

FALL TERM 184L 25

Smng to instruct llie jury that it was void on that account. ^^^

Nor do we presume any other error, prejudicial to the Pkttit * Ross,
plaintiff, in the opinions of the Court given in the pro-
gress of the trial. ' But for the errors which have been
pointed out, the judgment is reversed and the cause re-
manded for a new trial, in conformity with this and the
former opinion rendered in this case.
Morehead (^ Reed for appellant; //iflr/a?i for appellee.

Gore vs Pettit and Ross. . Ejectment.

Error to the Franklin Circuit. Case 9

Appeals and Writs of Error.

JiDGE Ewive deUvered the Opinion of the Court. Sipttmhtr, 17.

Gore sued Pettit and Ross, by petition and summons, The cue itated.
on a note for $300; Pettit made default, and Ross ap-
peared and pleaded several matters which went to his dis-
charge, upon which issues were taken, and a jary sworn
lo enquire of damages as to Pettit, and to try the issue
as to Ross, who found a virdict against the former and in
favor of the latter. But the jury fee not being paid by
either of the parties, no judgment was rendered on tbo
virdict. Gore moved for a new trial, which was overruled
by the Court, and he has brought the case to this Court.

The counsel foi Ross now moves the Court to quash
the writ of error, upon the ground that no ^naZ^W^men/
has been rendered in the Court below. We think this
motion must be sustained.

No writ of error lies to this Court except in cases No writ of error
Avbere a final judgment is rendered in the Court below: unloM the ju(^l

f^ T./rui 1^4 mentrenderedby

°*»- X^OW. lofl. ^he Court below

This provision is in no respect repealed or modified by " *'**^-
the statute of 1837: Ads 1836-7, p, 278. This statute Altho* the ttet-
provides that the jury fee shall be paid down by the sue- Jroridee for^e
cessful parly, before a judgment shall be rendered in his fury"foV, b^ Se
favor, but cannot be construed to confer a privileire on ^ucceifuipai^;

•k^ r 1 ^..1 * * 1 I 'L c yetitisnottoSc

the unsuccessful party to take an appeal or writ of error coneuuedtogive

before the judgment is rendered though it should not be ^ZwuL/uIm^
Vol. II. 4

26 BEN. MONROE'S REPORTS.

Bkowh rendered by the omission or refusal of the successful par-
YouNo. ty to pay the jury fee.
ty to proBecute If the Unsuccessful party desired to hasten the judg-
of emfr^untl?!! Hieut, 80 as to avail himself of the privilege of appeal or
one"^anI ftSa ^"' ^^ error, he might have resorted to those means pro-
jadifineau vided by the statute to coerce the payment of the jury fee,

or have paid it himself, so as to authorize a final judg*
ment; but without it, could not bring the case here for
revision.
The writ of error is therefore quashed with costs.
Hewitt for plainti£f: Gates and Lindsey for defeiidants.

Appbau Brown vs Young.

2bS^| Cas^ XO. Error to the Mariok Circuit.

' Consideration, Evidence. Presumptions.

September 15. Jodqm BIakshiix delivered the Opinion of the Court.

Case stated and '^^^^ ^^ ^^ appeal from the judgment of a Justice of
evidence. ^he Peaoe r^idered against Young, the plaintiflf in the

warrant. On the trial in the Circuit Court, Young read

the defendant's note to him for twenty-five dollars, and

the defeadant introduced evidence conducing to prove

that the note was executed for the price of a clock sold

by Young to him, and which the vendor warranted should

run well for two years, or be replaced by one that would —

that the clock did not run well, and that within the two

years Young was notified of the fact and required to.com*

ply with his warranty, which he failed to do, and that h^

was a clock pedlar.

instructionB ask- Upon this evidence the Court refused to instruct the

SjthrcourtTe'*- j ary» as nioved to do by the defendant: 1st, That if Young

low. was a clock pedlar and had not obtained license for sel*

ling clocks, as required by law, they must find for the de-
fendant; and 2d, That if Young had been notified withr-
in the two years, of the failure of the clock to run well;
and had failed to make good his warranty, they must find
for the defendant ; but instructed them that if the clock
was of any value, they should find for the plaintifi*, other-
wise for the defendant. These opinions of the Court

FALL TERM 1841. 27

were excepted to by the defendant, and a verdict and Biown
judgment having been rendered against him, he now ques- Vo?ife.
tions their correctness in this Court. ~~~

The 4th section of the act of 1831 » Stat. Law, 1381,
prohibits any pedlar or transient person from selling a
clock in any county in the State, without a license from
the clerk of that county for so doing, and the 9th section
of the same act declares void all contracts for the sale of
clocks by such person without such license. ^

The first instruction asked for by the defendant was On proof being
based upon these provisions, and upon the idea that, on wu V^en^^ ^a
proof being made that the note was given for the price of J^cfoci^i" the
a clock sold by a pedlar, it devolved upon the pedlar to ^t^^ presump-
prove that he had obtained the license, and that on his the pedUr had a
fiulnre to do so the contract must be deemed void under pic^f ^mur'be
the 9th section of the statute. But the law does not pre- S^t to rLifSe
same a violation of its own mandates; and when an act presumption Uiat

. •jai.j ^i_ •• i»i.«L iji- '^^ ^*d '^ot such

18 required to be done, the omission of which would be a license, before
criminal neglect of duty or a misdemeanor, the law pre- ^ S? prore^^It
somes that it has been done, and therefore, the party re- ^^ ^^ *^^^ ^»-
lying upon the omission, must make some proof of it,
though it be a negative: 1 Chiity's Plead. 253; 3 Star^
kit's Bv. 1250, &c. This rule is clearly laid down by
Lord EUenborough, in the case of Williams "va The East
hi. Com. 3 East, 199, and several cases are there cited in
its support; among these the case of Monk vs Butler, 1
fio/. Rep. 83, seems to be strongly in point for the present
cise. That was a suit for tythes, in which the defendant
pleaded that the plaintiff had not read the 39 articles,
and it was held, both in the Spiritual Court and the Court
of Kings Bench, upon a motion for a prohibition, that
the defendant was bound to prove it, "for the law will
presume that a parson had read the articles, for otherwise
he would lose his benifice; dxiA when the law presumes
ike affirmative, then the negative must be proved." In
fte case of Williams vs The East Ind. Com. the rule was
ai^lied with the effect of requiring the plaintiff to prove
that the defendants had not given notice of the combusti-
ble nature of certain oil, &c. which they had put on board
of the plaintiff's ship.

28 BEN. MONROE'S REPORTS.

Broww If a pedlar, selling clocks within this Stale, has failed

YouNtf. to obtain the required license, he is not only subjected
to the loss of his contract for the price, but also to a pen-
alty: Stat. Law, 12$9, and in his case, as well as in all
others, the law presumes innocence until there is some
proof to the contrary. And on the principle above stat-
ed, he is entitled to the benefit of that presumption in
this action to enforce a contract for the sale of a clock,
•V and the defendant, relying upon his omission to do that
which the law required, and the omission of which sub.
jected him to penalties and forfeiture, should have proved
it, as he might easily have done if, in fact, no license had
been obtained ; for the clerk of the county in which the
clock was sold, and who should have issued the license,
must be presumed to have known whether it bad been
)( issued or not.
proof that a note It maybe remarked also, that as the proof that the
clock does not of '^ote was given for the price of a clock, and that the ven-
iuelf, without a ^q^ was a clock pedlar, raises no^ presumption that a

demand therefor, ^ . . . , . ^ ,.

require of the license had not been obtamed; the question of license
his ^'license ^ to Of no license cannot be considered as having oeen raised
SueeSon ^oi ^i- ^V ®^^^ pfoof, and there was no call upon the plaintiff

cense or no li- to produce the license or make proof of it. The first in-
cense IS not rais- . \ i* i
ed. struction was, therefore, properly overruled, and that

there was no error in overruling the second is sufficiently
established by the case of Kdso vs Fry, 4 Bibb, 493.
The objections to a recovery, assumed in these two in-
structions, having no existence or application in the case
as it stood on the evidence, the instruction actually given
placed fairly before the jury the only question which the
defendant could have raised upon the evidence, viz: the
question as to an entire want or failure of consideration.
This instruction was clearly not erroneous, if, as has been
decided, the two first were properly overruled, and there-
fore, the judgment is affirmed.

Shuck for plaintiff; Morehead cf ficed for defendant.

\FALL term 184i\ 29

Bell et al. vs Shrock. Chancbry.

Error to the Montgomery Circuit. Case 11.

Parlies in Chancery. Assignor.

Cmr JusncB Robbbtsou deliTered the OpiQioo of the Ck>uTt. September 17.

This procedure in Chancery, for foreclosing an equity The ansignor of
of redemption, and selling real estate, mortgaged for se- ^"'^M^inenT of
coring the payment of two bonds, one for $400 and the which w secured
other for $500, has been conducted by counsel with com- should be made
mcndable vigilance and eminent skill, from the origin of Erihe wsignee
the suit to the decree for sale, with one exception only, ^° foreclose Uie
and that is, the omission to make the assignee of the
bond for $400, a party. The allegation, in the bill, that
the amount of that bond may be presumed, from lapse of
time and other circumstances, to have been paid, is, in
ODT opinion, insufiGlcient to dispense with making him a
party. He will not be concluded by that allegation nor
by the decree which has been rendered between other
parties; and, as the assignment of the bond vested in
Mm an equitable interest in the security, a Court of
Equity would act improvidently, and might subject him,
as well as others, to hazard and inconvenience in decree-
ing a sale of the moitgaged estate for the $500 alone,
without having him before the Court, and ascertaining
that he now has no interest in the mortgage, especially as
the mortgagor was dead and his representatives failed to
answer.

For this defect alone the decree must be reversed and
the cause remanded for further preparation.

Afperson for plaintiffs ; Pelers for defendant.

30 BEN. MONROE'S REPORTS.

Cask. Lexington and Georgetown Turnpike

road Company vs W. B. Redd.

Case 12. Error to the Fayette Circuit.

Tolls and Toll-gates.

September 17. Judge Marskaj.l deliyered the Opinion of the Court

The ease stated. W. B. Redd, who resides about two miles and a quar-
ter from Lexington, and whose land touches the Lexing-
ton and Georgetown Turnpike road a short distance be-
yond the first tollgate from Lexington, and who, in pas-
sing from his house to the road, upon his own land, neces-
sarily reached the road outside of the first gate, so that he
had to pass through the gate in going to and from Lexing-
ton; for the purpose of acquiring a passway into the road
between the toll-gate and the city, leased a small strip of
ground, 30 feet wide, by means of which he could pass
into the road and upon it to Lexington, without going
through the gate. After obtaining this lease, he abandon-
ed and in fact closed up the access to the road where his
own land touches it, and which he had previously used,
and travelled daily to and from Lexington, by means of
the new passway, without going through the gate or pay-
ing toll. And this proceeding was instituted against him ,
by the company, in order to subject him to the penalties
inflicted by the 20th section of the act of incorporation,
against all persons who, being liable to pay toll at any
gate authorized by the act, shall, with intent to defraud
the company, pass through any private gate or bars, or
along or over any grounds or lands near to or adjoining
any turnpike gate, &c.

It being admitted that the strip of land, above describ-
ed, was leased and used by Redd for the purpose of
avoiding the gate and the tolU the only question is, whether
this is to be regarded as the fraud or one of the frauds
upon the company denounced by the 20th section, or
whether Redd, merely in consequence of his position in
relation to the rOad and the gate, is liable (in the lan-
guage of the act,) to pay toll at the gate, in going to and

FALL TERM 1841. 31

from Lezinelon and his residence, or in other words, Lbxinotok and
whether, m consequence of his position, he is one of p. R. Com.
those who, in contemplation of the act, was bound to go w. bVeedd.
through the gate in travelling to town, and commits a
fraod upon the company by purposely avoiding it, and
still travelling upon a part of the road between the gate
and the city.

Most clearly Redd was not bound to pass through the An indiyiduai
pte on his way to town, unless he either actually travel- ulf aii?Googe^
ed on a portion of the road outside of the gate and aftei- \^ ^u^eca
wtrds came upon it within the gate, or unless because he i^^ and Uie fim
lived beyond the gate, he was bound to strike the road two g&tei, iT no^
beyond the gate if he intended to use it at all in going to ^^^^Vt "^ a
Lexington. But there is nothing in the statute which im- «*^ , <>' p«J
poses upon any person the duty of using any portion of then travel Uie
the road ; nor is there any thing in the statute which indi- '°^
eates that any person shall be liable to pay toll for using
merely that portion of the road between Lexington and
the first gate, or the portion between any two gates, but
the contrary is clearly indicated, and the repeated and
constant use of such portion is no fraud upon the compa-
ny within the 20th section.

It is not because Redd uses a portion of the road be-
Iween the first gate and the town, that he is liable to pay
toll, for every citizen, wheresoever resident, has a iright
to use that portion without paying toll. But if liable at
all, it is because he lives near the road beyond the gate*
and is, therefore, bound in going to town, to travel upon
the road from the point where his land touches it, and
thus to pass through the gate. There is, in our opinion,
00 such principle in the statute, whether interpreted ac-
cording to its letter or its spirit. No man, if he can avoid
it, is bound to use the road in passing from one point to
another, situated upon it, unless he choose to do so; and
00 man is liable to pay toll for the use of any part of the
n»d, unless he either passes through a gate or having
wA the road on one side of a gate, passes round it for
the purpose of avoiding the toll, and then uses it on the
other side ; and this, as we think, is the fraud and the
only fraud upon the company to which the 20th section
lefers.

BEN. MONROE'S REPORTS.

fiKIZBMDINB AMD

Hawkins

Frankfort B.
Company.

It does not appear that the passway which has been
described, is used by Redd or others as a means of com-
mitting the fraud upon the company now defined, but on
the contrary, it is the only way that is open or used, from
his house to the Turnpike road, and he has no passway
to the road on the other side of the gate. We are of
opinion, therefore, that upon the facts appearing in this
record, the company has made out no case against Redd
for the action of a court, either of law or equity, and the
judgment is, therefore, aflSrmed.

Pindell for plaintiffs; Robinson ^ Johnson for de-
fendant.

Case 13.

September 18.
The cause of ae

Cask. _ Brizendine & ^awkins vs Frankfort

Bridge Company.

Error to the Franklin Circuit.
Joint action. Bar, Abatement.

Chief Justice Robertson delivered the Opinion of the Court.

fiRiZENDmB & Hawkins, as joint owners of a male
in^, *Bnd ^jadg- ^l^^e and wagon and team, desciibed in their declaration,
cixuamn* ^"' ^"^^ "The Frankfort Bridge Company,'' in trespass an

the case, for an alleged injury to the said property, result-
ing from the falling of the bridge whilst the slave,
wagon and team were passing upon it. The corporatioa
pleaded, in abatement, a former verdict and judgment
rendered in bar, on the general issue, in a similar action
previously brought against it by Brizendine alone, for the
same injury to the same property. The Circuit Court
having overruled a demurrer to that plea, and the plain-
tiffs failing to reply, judgment was rendered abating this
action. And the only question we shall now consider,
in revising that judgment, is whether the plea is good ;
for if the matter pleaded was sufficient to bar the joint ac-
tion, as we think it was, then a preliminary question, as
to the defendant's right to file a plea in abatement when
this plea was first offered in Court, need not be decided.

FALL TERM 1841. 33

The judgment, as exhibited, against Brizendine in his BBirENoiNE*«tt
separate suit is, in form and legal effect, a conclusive bar va

to another action by himself alone, for the same cause. *compawy. '

The verdict is '*for the defendant,'* and the judgment one joint owner

thereon, is that •• the defendant go hence" df^c. On the ?/ PfoP*j|J JJJ;

general issue, as tried in that case, Brizendine had a le- truction thereof

gal right to recover one half of the damage to the joint menVTn bar a-

property; and even if the Circuit Judge erroneously in- not°'^afterwaiSi

slructed the jury otherwise, the only means of avoidiTie join with another

. joint owner, and

(he bar was either to have suffered a non-suit or procured deft, in such a

a reversal of the judgment which, on the hypothesis sug- himself of euch

gesled, was erroneously rendered in bar of the sole action, matter by plea ia

Then, as the judgment against Brizendine alone still bar,orbymotioB

riip ji-Ai_ri_ n for a non-suit.

remains m full force, and he therefore has^no cause of ac-
tion, can he and Hawkins maintain this joint suit for the of^pwperV'SJy '
identical wrong as to which the former is thus, for the recover for an in-

, J jury to the samOy

present at least, barred by a valid and subsisting judg- or destructioa

raent against him? We think not. The misjoinder is pe«on, i whei«

fatal, and might have authorized a judgment in bar of any {Jpfeaded^ha^J

fatare joint action for the same cause; for such a judg- right toarecoT-

ment would not affect Hawkins' separate right of action c7to^the^xtent

in his own name alone for the injury sustained by him as ?/ uifs^r^'oTery

one of the owners of the damaged property. As he was ^m prevented by

DO party to the first suit the record thereof would be in- judge,andajndg-

admissible as evidence against him, and in such a case, dered^nr^c^a-

ei ddicto, a separate action by him could not be either J^J i^i^V^.

abated or barred by the non-joinder of Brizendine, tio* "^^^ other

To a plea in abatement for non-joinder in such a sever- fa barred by'th*

al action, he might reply that Brizendine had been bar- J'*°«"*®'*^
red by a judgment in a previous action brought by him
alone, and such a replication would have been good; for
neither a recovery of his aliquot portion of damages by
one part owner of property in an action for a tort, nor a
judgment against him alone, in such an action, can b6
availably pleaded to a separate action by another part
owner: 7 Term Rep, 279; ZKib. 244; 5 Ea^, 407; and
flflfcr vs Jewell, 6 Mass, Rep, 460.

But though Hawkins is not barred by the judgment One joint owner

against Brizendine, and the record of that judgment ?icST«*'hi? J^^^

would not be admissible against him, yet, as Brizendine portion of the \

•I , , . . . 1 . . . 1 rr » . 1 ^ame thereof, i

18 barred, ^e cannot join in this action With Hd^iciin^, and thongb aooUwr \
Vol. II. 5

BEN. MONROE'S REPORTS.

Txvia' BBiis

Claruov.

joint owner may
naTO recoreied
or sued for, and
failed in a recov-
e.iy of his propor-
tion, and a judg-
qientbe render-
CHlin bar of his
right.

there is, therefore, in this case, a clear misjoinder, M^hich
was available to the defendant either by a plea in abate-
ment, or a plea in bar, or a motion for a non-suit.

As, therefore, this action might have been barred for
misjoinder, the parties have no right to complain of a
judgment abating it merely.

Consequently the judgment of the Circuit Court is af-
firmed.

Hewitt and Herndon for plaintiffs; Owsley, Morehcad
<f Reed for defendants.

Ejectmsnt.
Cage 14.

S^iitnbef 18.
The cose stated.

LeaeofS of plain*
tiff, in eject-
ment, may be re-
Suired to give
ond with secu-
rity for costs.

After the defen-
dant has appear-
ed and pleaded
to the merits, or
appears and asks
leave to be, and
is admitted to de-
fend upoQ the
common terms
of defending up-
on the merits, he
Boould not be al-
lowed to pl^ad
the Iacl( of bond
for costs, and

Tibbs' heirs vs Clarkson.

ESROR TO THE BoOlVE ClRCUlT.

Abatement. Bonds for costs,

JvDOB EwiNO delivered the Opinion of the Court

This is an action of ejectment instituted by Tibbs'
heirs against Clarkson. After Clarkson was admitted to
defend in the place of the casual ejector, upon the com-
mon terms of an agreement to confess lease, entry and
ouster, and plead the general issue and rely upon his ti-
tle only, he exhibited and filed a plea in abatement al-
ledgiug that the lessors of the plaintiff were non-resi-
dents and had not given security for costs. This plea was
resisted and bond with security for costs offered.

We have no doubt that in ejectment the lessors of the
plaintiff, who are non-residents, as well as plaintiffs in
other forms of action, may be required to execute bond
with security for costs.

But this is a dilatory plea, and in other actions, cannot
be pleaded after a plea to the merits has been put in ;
aiul for like reason should not be allowed after the de*
fendant has appeared and been admitted to defend, upoa
the common terms of defending upon the merits.

Had he desired to plead in abatement, he should have
asked leave of the Court to appear specially, or to have
him admitted a defendant upon the usual confession oC
lease, entry and ouster, with the reservation of his right
to f\^i in abatement, the matter presented in bis plea.

FALL TERM 1841. ,1^ 35

To allow him to plead this matter, after he has been ad- Thompsoh
mitted a defendant upon the express terms of relying up- Mo&ris.

on his title only, is to allow him to contradict his own his a^eement to
agreement, previously entered on the record. '® yonuueonjy.

We do ijot feel disposed to extend the privilege of K a party in ©-
pleading such matter in abatement, further than it has al- ^desire^^o "plead
ready been carried, especially as the defendant at any ihoufd^TonfJiJ
time, upon motion, might have availed himself of it. the lease, entiy

*^ » o ^hjI ouster, with

It is uni/ecessary now to decide whether in an action the reservation
of ejectment, the Court ought ever to permit a party to uiaT*he'*»houid
defend and plead in abatement if the lessors offer, at the ^nP®™do*^at
time, to execute bond with sufficient security for the » not decided. '
costs.

Judgment reversed and cause remanded, that the plea
may be stricken from the record, and further proceedings
had, and the lessors of the plaintiff in etror are entitled
to their co^ts in this Court.

Owsley, Gates ^ Lindsty for plaintiffs; Robinson (f^
Johnson for defendant.

Thompson v$ Morris, Dbbt.

Error to the Clarke Circuit. q^^ 15^

Sheriff's return. Service of process.

Gbief Justice Robestsom delWered the Opinion of the Court September 21.

Mason Morris, assignee, sued John H, Tribble BXid xhecaieiuted
Hainey Thompson as joint obligors in a promissory
note.

The process being returned "executed on Thompson,*'
bnt * 'not found" as to Tribble, the Circuit Court abated
the suit as to the latter, and rendered judgment against *^

Thompson, after overruling his motion to quash or com-
pel the sheriff to amend the return of "not found," on
the ground that it was false.

Whether the Circuit Judge erred in overruling that mo-
tion, is the only question presented for revision.

It appears that early on the morning of the return day,
Morris' attorney met the sheriff on his way from the
country to Court, and took from him the process, endors*

36 Ben. MONROE'S REPORTS.

TH0MF80H g(j as it was, when the judgment was rendered, and that,
MoBHis. immediately on the arrival of the sheriff in Winchester,
where the Court was to be held, and before the process
had been returned to the clerk's office, Tribble presented
himself and required the sheriff not to return as to him,
'•not found."

Upon these facts it seems to this Court that the return

"not found" was improper and should have been either

quashed by the Circuit Judge, or amended by the sheriff

so as* not to have permitted the abatement as to Tribble,

and the judgment against Thompson alone.

his the duty of As it was the oOicial duty of' the sheriff to execute the

^^inifprocei"! process, if he could, before he had actually returned it

vhen the samo qq the return day thereof, either the return, as made in

can be served be-

fore the return this case, was false or the attorney of Morris prevented
tod before^ actu- the officer from doing his legal duty and reluming the

to\he"cieik"of- ^^''^'^ ^^^ "P°^ either hypothesis, Morris had no right
ilce, to serve the to the judgment against Thompson alone, and the Cir-

eaine on all the * /->* i j* iii"/v«

defendants. cuit Court ought to have directed the sheriff to return the

special facts as they had occurred, and which, if substi-
tuted, as they should have. been, for "not found," would
not have authorized the abatement as to Tribble. The
Sheriff's retain statutory privilege of abating as to a co-obligor, upon a
originafp^r^^^ proper return of "not found,*' as to him, should be care.
Couruobe^aise* ^^''^ guarded against perversion from its just purpose to
should be quash- the injury of a party whom it was never intended to af-

ed, 01 amended n . i i« tt* tti tt**7

so as to conform fect, whtn his coooligor could, by reasonable vigilance,
the cwe!'^^ ^^ ^^ 5en?cd With pro cess at any moment before the return day

had passed, and before the actual return to the clerk's office.
It is not material to enquire whether there is any cause
for inferring that Tribble had intentionally eluded the sher-
iff, so as to prevent a judgment against himself at the ap-
pearance term ; for, as there is no reason for apprehending
any connivance by Thompson, he should not be preju-
diced by the improper conduct of another, over whom he
had no control, and with whom he does not seem to have
colluded.

It is, the efore, considered that the judgment be reversed
and the cause remanded, with instructions to quash the
return of "not found,*' as to Tribble,

Caperton and Houston for plt'f ; Hanson for deft.

FALL TERM 1841. 37

Hood, administrator of Bradford vs Link. Case,

Error to the Bourbon Circuit. Case IG.

Descripiio persone. Judgment, Amendment.

JiiDOE Masshall delivered ihe Opioion of the Court. September 21.

This action, on the case, was brought by Link against xhe case stated.
Hood, administrator with the will annexed of Bradford,
to recover damages for an alleged fraud in the sale of a
slave. Upon a verdict finding damages for the plaintiff,
ajudgtnent was rendered against the defendant to be le\u
tidebonis iestaioris; butat the nest succeeding term of
the Court the judgment was, on motion of the plaintiff,
amended by the declaration so as to be personal against
the defendant, who seeks, by writ of error, the reversal
of the last judgment.

In considering the case as thus presented, two questions
arise: 1st, Is the action brought against the defendant in
his personal and not in his representative character, so
that a judgment in the latter character vvas inappropriate?
and, 2d, If the defendant is sued in his individual capa-
city only, was the ]udgtQent de bonis testatoris, amenda-
ble at a subsequent term as a clerical misprision?

1. Although both the writ and declaration style the de- Although the
fendant "William S. Hood, administrator with the will Tation*8tyie^*th*e
annexed of Benjamin Bradford, dec'd.;'' and the words and^^^h^'^^^^^/jg-
"administrator, &c." or "adm'r. as aforesaid,'* are added 'adm'r. as afd.*
wherever he is mentioned in the declaration, this circum- they are to be la-
stance, as has been frequently decided in actions ex con- tion of ufe^pei"-
/rodtt against executors and administrators, founded on 5?n»a»ddonot

i . . dicisively roow

their own acts, is by no means decisive of an intention an iptention lo

to charge the defendant in his representative character, fenjfnt in hia fi-

and such additional words will be taken as mere descrip- f^"!'*'^ ''*'''''''"
tion of the person when a personal liability is shown in
the declaration, unless the intention to charge him in his
representative character be otherwise unequivocally de-
monstrated.

In this case the fraud alleged is strictly and emphatical- When defendant

•y a personal act, for which the wrong doer is unques- i" persMai^act

38 BEN. MONROE'S REPORTS.

HoAD,ADMB.Ac. lionably liable in his individual character, and the mere
Link. fact of Styling him administrator in describing the act done
(as a fraud,) the by him, not only does not negative his personal liability,
inr\^fm adiii?n but is wholly insuflBcicnt to show any other liability,
does npt nega- gurely the estate of which he is the administrator cannot

live his personal ' ,

liability. (Can be made liable, merely because he, being administrator,
Hab?e'^ 1ror"*the sold a slave and committed a fraud in the sale, and yet
adm^r. in dispos^ ^^^^ ^^ ^^^ that the declaration in this case alleges. It is
log oi the as- not averred that the slave belonged to the estate, or that

it was sold for the benefit of the estate, or that the pro-
ceeds weie appropriated in that way — nor is it even stated
that the defendant sold the slave as administrator, but
merely, that the defendant, administrator as aforesaid,
sold, &c. Conceding then, without deciding that a
judgment de bonis testatoris, might be obtained in an ac-
tion on the case, for a fra\td committed by the defendant
as administrator, in disposing of the assets for the benefit
of the estate; we are decidedly of opinion that in the
present case, the judgment de bonis propriis, is appropri-
ate, and the judgment de bonis testatoris, inapropriate
and unauthorized, because the declaration shows clearly
a personal liability on the part of the defendant for his
personal tort, and it does not show any ground of liability
on the part of the estate for that personal tort. If any
averments would authorize a judgment de bonis testaloris,
in such an action, the averments in this declaration do
not authorize it, but requiie a judgment de bonis pro-
priis.
To enter jttd^- 2. And 88 it has been often held that a personal judg-
SSStori/againit nient, rendered in a case where, upon the declaration,
miniBtiator* for ^* should be against the assets only, is amendable as a
fraud in the sale clerical misprision, so we think the error in this case, of

Oi a slave \^hen

it should' have entering the judgment at first against the assets in thede-
pr^ni«,*i» ade? fendant's hands as administrator, when upon the declara-
licai misprision tion it should have been against his own estate, was a

and amendable

at a subsequent cletical misprision, and as such, amendable by the decla-
mtaL ^^^^^' tion, and properly amended at a subsequent term.

Wherefore, the judgment is affirmed.

Robinson ^ Johnson for plaintiff; Owsley for defen-
dant.

FALL TERM 1841. 39

Luckett et al. vs Triplett's Adm'r. et al. Chancery.

Error to the Franklin Circuit. Case 17.

Yador and vendee. Allegation and proof. Pro confesso.

Ciur Justice Bobvrtson delivered the Opinion of the Court. September 22.

JiRXfiUAH Luckett enjoined a judgment which Joel Allegations of
&otf had obtained against him on a note assigned by ^^'^t bm and de-
Tkomas Tripleti, and which had been given as a part of
the price of a tract of land which Triplett had sold and
conveyed to Luckett, by deed of general warranty. The
only grounds suggested for the injunction were — 1st, An
apprehension of eviction by an adversary title superior to
that of Triplett; and2ndly, The alleged doubtfulness of
Triplett^s circumstances — each of which was negatived
by the answers.

The injunction having been dissolved and the bill dis- Allegations of
missed, Scott obtained a judgment against Luckett and decree thereon!
his surety in the injunction bond. To enjoin the enforce,
ment of the replevin bond given in satisfaction of this
last judgment, Luckett and his sureties filed another bill,
incorporating therein the record of the first suit in Chan*
ceiy. and alleging, that since the date of the decree in
Ibat case, Luckett had been actually evicted in an action
of ejectment, in which Triplett and himself were defen*
dants, and that Triplett had then become hopelessly in-
iolvent. The» record of the action of ejectment wa^ ex.
hibited and proved the eviction as alleged; and afterwards
an amended bill and a bill of revivor against TripUtCs
administrator were filed, in which, after reiterating the
allegations of the original bill, it was alleged that the
consideration for the note on which the original judgment
had been obtained had certainly failed. The amended
bill was never answered by Scott\ and TripletCs dAxmn-
istrator, in his answer to the bill of revivor, admitted the
total insolvency of the intestate. Nevertheless, the Cir-
cuit Court again dissolved the injunction and dismissed
the bill.

This last decree is now to be revised.

40 BEN. MONROE'S REPORTS.

LuoKETT etai. The gjst decree was no bar to the relief sought in this

Triplett'sad'b. suit. As Lucktll had accepted a conveyance and was in

possession, and Tripleit was not then insolvent or known

having accepted to be §0, there was certainly, at the date of the first de-
tained^ the^pos- cree, no cause for perpetuating the injunction; and the
session, cannot dismission of the first bill was, therefore, perfectly right:

enjomajudgment

for the purchase Taylor vs LyoTi, 2 Datia, 276.

vI;nd7r]s*soiven^ But before the final decree in the present case, Luckett
b"^v'^ t Vb "lir^ ^^^ ^^^" actually evicted from the entire tract by a para-
amount title and mount title, and his warrantor had become, or was then

vendorinsolvent, .i^i* i ± j* -li j

the Chancellor asccrtamcd to be msolvent and irresponsible; and con.
Tnliinsuch^u^dg^ scquently, as there was no available remedy at law on the
mentj vendee be- warranty, LucktiVs only relief was in a court of equity,

mgwuhoutielief ... - ^ ^ •• •

atiaw, andade- by enjoming the enforcement of the consideration re.

birrb^e'tweenihe maining Still unpaid; and of course as no cause for in-

thrsame object' j^^^tion existed at the date of the first decree, this suit,

filed before Uie instituted when there was suflScient ground for relief, as

m^ihe Tast biS to Triplclt at least, cannot be afiected by that decree, so

So'bw to'Ihi si far as he was concerned.

cond suit. There is some ground for doubting whether Scott or

Answer to bill, Tiiplett's representative is the party beneficially inter-

mBteria?\i?lga- ested in this case. But even if Scott be the beneficial as

cy" wiirm!t^Te ^®" ^^ ^^^ nominal judgment creditor, he should not be

taken as a denial permitted to enforce payment of the amount of the note

ofjthe same al- , . , , . . ili i . r r •

legation, made v;hich his assignor could have no pretence for enforcing.
\vMds1n^a biiiYn By not answering the amended bill, Scott admitted the
cor^oTatin"^''the ^^^^^^^^> Triplett's insolvency, and ihetotal failure of con-
record of first sideration, as therein explicitly alleged. The fact that,

in an answer to the original bill, he had not admitted
Triplett's insolvency, could not aflect his tacit admission
of it two years afterwards.
The assignee of ^^ seems to US, therefore, that to the extent of the ori-
^note,the con- ginal judgment, and the accruing interest thereon, and the
which has failed, costs of this last suit, the injunction should be perpetua-
qucnUy to^ ^he ted against the replevin bond — leaving to be enforced
no?be'permitted ^"^y ^^ ^iwch thereof as shall remain of the costs in the
to coerce it any action on the injunction bond, and of the costs and dam-
obiigce. ages properly decreed on the dissolution of the injunction

and dismission of the bill in the first case, after deduct-
ing therefrom the costs in this case, including the costs of
the action of ejectment.

FALL TERM 1841. 41

The last decree is, therefore, reversed, and the cause Fuoatb
remanded for such a decree as herein indicated. Clahilbon.

Todd for plaintiffs ; Owsley for defendants.

Fugate VS Clarkson. Replevin.

Ebror to the Pendleton Circuit, Case 18.

Mortgagor and Mortgagee. Replevin.

Crar JosTxCB Robertson dcUvered the Opinion of the Court September 22

In this case the only question is that which was stated QuesUon stated.
but left undecided in Mclsaacs vs Hobbs, 8th Dana, 271,
and that is, whether a mortgagee, entitled to the posses-
isioo of movable property remaining with his mortgagor,
may maintain an action of replevin therefor against a
sheriff who, though apprised of the mortgage, had taken
it under a fi. fcL as the absolute property of the mortga-
gor, and had avowed his determination to sell it without
regard to the mortgagee's claim of title.

And this point being now, for the first time, fairly pre. Mortgagee ^can-
sented for judicial decision, we are of the opinion that "?^ pamtam re-

. J ' iv* . pievin against a

the facts just stated are insufficient for maintainine: the sherifTwho takes

artinn ^® mortgagee's

Acuon. property out of

Although the mortgagor's possession, in this case, might Ihe ^'Jto^o?by
be deemed that of the mortgagee, yet the equity of re- ^i^^^«o??^itof
demption being nevertheless liable to sale under the exe- mortgagor beforl
cution, the sheriff had a legal right to take the property Sio"gh ^sS
into his possession and hold it until after a sale according retriuSofutci?
to law; and, until after an illegal sale or some other tor- ^i^o^tregard to
iious act making the officer a trespasser ab initio, the ®™°'^®^®'
mortgagee can have no right to divest him of his possession. thon^h^'L p?8^.
His expressed determination to disrecard the inortraffe sesswn of Uie

^ii««^*K • ^- • 11 -J .11 , "'"'^ig^^ge mor^agor may

cannot bejudicially recognized as an illegal at:/ or sufficient ^ deemed that
proof that he had violated the law in taking the property, yet\^iI2riff^h0^i
or would, in fact, violate it in the sale. Notwithstanding tafe thc^^LJl^
such declaration, he might sell subject to the mortgage, as «^''^o^mor^aged
he would still have the indisputable right to do and ituSSIftJrsalit
ought to do if the mortgagee's title be good against the ex- fiieg'S'^sSte '^
ecotion creditor. "*""« ""^m tor-

Vol. II. fi

BEN. MONROE'S REPORTS.

Calk Jq gud^ ^ case, if the mortgagee desire the possession

Francis* adm'h. of the property, instead of interposing to prevent a sale by
lious act which the officer who might sell legally and without any wrong
r^twspMser aS ^^ him, he should wait until the sale, when, if the equity
caiiDSr°'?WM^ ^^ redemption only shall have been sold, he will be entitled
him of thepos- to restitution of possession from the sheriff, and if the

absolute title shall have been illegally sold, he may replevy
the property either as against the sheriff, before delivery
to the purchaser, or as against the latter if he shall have
taken it wrongfully into his possession.

Any other doctrine would seem to us to be not only
unnecessary for the security of the mortgagee, but subver-
sive of justice and inconsistent with the policy and analo-
gies of the law.

Wherefore, as the decision of the Circuit Court is in-»
cohsistent with this opinion, the judgment must be re-
versed, and the cause remanded with instruction to ren-
der judgment for the sheriff on the special verdict.
Morehead cf- Rted for plaintiff; Trimble for defendant.

Chancery.
Case 19.

September 23.

In a proceeding
in chancery un-
der the statute of
1827 for the sale
of the lands of a
non-resident, the
execution of a
bond of indemni-
ty such as requir-
ed by the statute,
at a term subse-
quent to that at
which the decree
is rendered, wiU
not cure the er-
ror committed by
the court in ren-
dering the decree
before the exe-
cution of .the
bond, it is not a
clerical miiprli-
i«n.

Calk vs Francis' Administrator.

Appeal from the Montgomery Circuit.
Chancery, Bonds of indemnity.

Chikf Justice Robertson delivered the Opinion of the Court.

At the term of the Circuit Court subsequent to that at
which an appeal had been granted and an appeal bond
executed for reversing a decree for selling a non-resident's
land, in a proceeding under the statute of 1827, (1 Stat.
Law, 99,) the Circuit Judge permitted the complainants
to execute and file a bond for indemnifying all persons
who might be injured by the decree — no such bond (as
required by the statute) having been filed or executed be-
fore the decree was rendered, or during the term at which
it veas rendered.

The decree, as rendered and appealed from, was cer-
tainly erroneous, as th« statutory bond had not been re-
quired or given. But the bond, executed at a subsequent
term, being brought up by certiorari, the question is, did

FALL TERM 1841.

the execution of that bond cure the eiror in the decree?
We think not.

The omission to require the bond cannot be deemed a
misprision, amendable after the parties were, in conse-
quence of the appeal, out of the Circuit Court; •nor had
that Court any jurisdiction to correct the decree when the
bond was executed and filed. The error in the decree
was fatal and could not be corrected at a term subsequent
to the appeal taken to reverse it.

Decree reversed and cause remanded.

Pders for appellant; Apperson for appellees.

WiCKLIFFS
V8

WiLgoN et al.

Wickliffe vs Wilson et al.

Error to the Pendleton Circuit.
Champerty, Conveyances,

Chief Justice Kobebtson delivered the Opinion of the Court

As hitherto virtually decided in the cases of Scott vs
Moss, 2 Dana, 275, and Cardwell vs Sprigg*s heirs, 7
B. 42, the occasional cutting of wood for fuel, on an un-
inclosed and unimproved tract of land, not connected by
title or boundary with any actual improvement, resi-
dence, or other ostensible occupancy, is not alone suffi-
cient to avoid, as champerlous under the statute of 1824,
a sale and conveyance thereof by an adversary claimant,
to a stranger, during such use. There being, in this
case, no other evidence of occupancy, adverse to Wilson,
than that just described, we are of the opinion that the
Circuit Court erred in instructing the jury that they might
find his deed to Wickliffe, in 1827, to have been cham-
pertous; and the jury, of course, had no right to find, as
they did, that this deed was void in consequence of an
adverse possession of the land at the dftte of it, espe-
cially as there is no evidence that Wickliffe knew that the
land was even used adversely to his vendor.

The judgment of the Circuit Court is, therefore, re-
versed and the cause remanded for a new trial.

Morehead ^ Reed for plaintiff; Owsley for defendants.

Ejectment.
Case 20.

September 23.

The occasioBal
cutting of fuel on
an uninclosed
piece of land,
not connected by
title or boundary
with any actual
improvement, re-
sidence or other
ostensible occu-

fiancy, is not a-
one sufficient to
render a convey-
ance thereqf
champertous un-
der the statute of
1824, especially
%vhere there is no
proof that the
vendee had (any
knowledge that
the land was
ever used ad-
versely .

BEN. MONROE'S REPORTS. ]

Ejectment.
Case 21.

September 24.

Non-resident
plaintiff in vrit
of error prosecn-
ted to this court,
in action of eject-
ment, required
as other non-res-
ident plaintiff, to
file bonds , for
coats, if they fail
to do so it may
be pleaded iu
abatement of the
writ of error.

In the circuit
court, when
leave is asked to
be permitted to
defend, ^ that
court may, in the
exercise ^ o/ . &
sound judicial
diacretion, re*
fuseto permit the
person thus ad-
mitted to plead in
abatement if les-
sor of plaintiff
•will then give
bond for costs;
but in this court
where lessor

Hudgens et al. vs Jordan.

Error to the Anderson Circuit.
Bonds for cost. Abatement.

Chief Justice Robertson delivered the Opinion of the Court.

Our predecessors having decided that the statute re-
quiring non-residents to secure the payment of costs be-
fore or when they institute suits in any of the Courts of
this Commonwealth, applies to writs of error to this
Court, and that an omission to file the required bond
before the emanation of a writ of error may be pleaded
here in abatement of the writ, the only question remain-
ing open to us, on the plea filed in this case, is whether
such a plea is applicable to the fictitious action of eject-
ment, when the lessor, plaintiff in error, is a non-resi-
dent of this State.

And although it may be true that a Court of original
jurisdiction ought not to permit any person to be made a
defendant in an action of ejectment, for the purpose of
abating the suit, merely because the lessor was a non-res-
ident and had omitted to file a bond securing the costs
to Richard Roe, who could never be entitled to costs,
and that the proper course, in such a case, might be only to
exact security if required, yet we can perceive no rea-
son for discriminating in this Court between a writ of
error by the lessor in an ejectment and the like writ by
a plaintiff in any other class of cases.

In the Circuit Court, the party asking leave to defend
was not, in form, sued ; and when he seeks to come in
and defend, the Court, in the exercise of a sound judicial
discretion, might refuse to permit him to defend by plead-
ing in abatement the non-execution of a bond for costs,
before he was a party, if the lessor shall offer to execute
sufficient bond for securing costs.

But after a defendant has been entered, and has defend-
ed in the Circuit Court, the lessor, by prosecuting a writ
of error against him in this Court, sues him here just as a
plaintiff in any other form of action would, by the like

FALL TERM 1841. 46

writ, sue any other actual party who had obtained a judg- ^^»"

ment against him in the Court below. Taul's adm'h.

* * AND OTII£RS

Wherefore, as the plea in this case is technically good !_

ind was filed in proper time, it is the judgment of this wTirof e^rror he

Court that the writ of error do abate. bond^'^^^'^befo'e ^

Hewilt and Draffin for plaintiffs ; Harlan and Coles (^ suinff out the
Undsey for defendant.

Oden vs TauVs Administrator and others. Chancery.

Appeal FROM the Clarke Circoit. Case 22.

Master in Chancery, Commissioner's report

JuDOB EwiNO delivered the opinion of the Coart. September 24.

The commissioner appointed at the October term, Commissioners

1840, by the order of the Chancellor, to ascertain and Keib^^^^^

report to the Court a reasonable compensation to be al- certain and re-

"^ * port facta for his

lowed to the complamant for maintenance, clothing, &c. information, af-

of the infants, having taken evidence and made report to so' 4- made their

the March terra following, which was noted on the record, aiuhoVity^ aiere°

had no authority afterwards, without an order of re-com- after to take

mitment, to take other evidence and make a second re- makeanoUier^re-

port to the subsequent July term. The powers of the Sewedln^af-

commissioner expired so soon as he made the first report, i"S^eii first re-
and t\is subsequent action was without warrant, and the
eridence taken unauthorized and inadmissible, and hav
ing been taken without legal notice, was also ex parte,
and should not have been made the basis of a decree.

But as the facts brought to light by the new evidence, Bntif bysnchre-
conceding to It the force of ex parte affidavils, are mate- Sre^ brought^^io
rial, and tend to the conclusion that if it were properly a&^/ wolw^'ro'-
taken, that a different result would be produced, and one ^"j^®. * different
more favorable to the infants than that which the evi- thereof wL^p?©-
.dence regularly taken would require; and as the defen- ?avimWe^toki-
dants were infants and ignorant of the facts developed, [*'^Bh'uFi'°b^'*'1''
and there is ground to believe that the complainant sup- forded for its re-
pressed a portion of the evidence, we do not feel war- S wci? as^^anr
ranted in directing a decree upon that portion of the evi- ,n^"t come ^
dence which has been regularly taken, without allowing ^'^sm.

46 BEN. MONROFS REPORTS.

Partlow et ai, an opportunity to the infants to retake the evidence which
Lawoon. has been excluded, or any other which may throw light
on the case.

The deciee is, therefore, reversed and cause remanded
for further proceedings.

Eginton for appellant; Hanson for appellee*.

Motion. Partlow et ah vs Lawson.

Case 23. Error to the Meade Circuit.

Motions. Jurisdiction, Damages,

September 25. Chief JusTrcs Robertson delivered the Opinion of the Court.

The case- suted On a single motion in the Circuit Court against a coii-
^f^th ^"(P^^'^J stable and his sureties, for a statutory judgment on ac-
Court. count of his failure to return, within thirty days from the

return day thereof, three several executions of fi. fa, for
different debts, each less than S50, and which had been
issued in favor of the plaintiff in the motion, by a Jus-
tice of the Peace, and delivered to the said officer, there
was an abatement as to some by a proper return of "not
found," and a judgment against the others for the aggre.
gate amount of the three executions at the date of the
judgment, and thirty per cent damages thereon.

That judgment, being brought up for revision, must be
reversed on three grounds :
The per centage 1. As hitherto decided, more than once, by this Court,
ficerisTiabie for the amount due and collectable on an execution, vrhen
Sl^iecuUon u ^he officer's statutory liability to damages for not return-
to be calculated {^o jt first accrues, and the per centage thereon denounc-

on the amount ° . /^ °

dueontheexecu- ed as a penalty, constitute the utmost sum which can be
when the liabiuty recovered on motion: and a larger sum has been adjudg.
is incurred. ^j in this case.

The remedy for 2. The remedy for failing to return every execution is
failure to return several and exclusive, and the consolidation of the three

several execu- , ^

tions is several exccutious in one motion, could not give to the Circuit
two or more lia- Court jurisdiction if otherwise that Court had no right to
be'consouSted ^^e coguizauce of the case: Harris vs Smilk, 7 Mon,

toKive the Cir- ^12
cult Court juris-
diction.

FALL TERM 1841.

3. Prior to the enactment of the statute of 1835, (Sess»
AciSy 302,) a constable was liable on motion to only /en
per cent damages for failing to return an execution with-
in the prescribed period; but this latter act denounces a
penalty of thirty per cent '* recoverable before a Justice of
the Peace," with right to appeal to the Circuit Court when-
ever the amount of the execution exceeds five pounds.
Moreover, the time allowed for returning an execution, by
the act of 1835, is extended from twenty days (as fixed
by former enactments) to thirty days. It seems to us,
therefore, that the act of 1835 constructively repealed all
prior enactments as to the penalty, and that, as it gives
jurisdiction only to Justices of the Peace to adjudge the
penalty, the Circuit Court was not intended to exercise
any concurrent jurisdiction in such a case and that, there-
fore, the original jurisdiction, in all such cases against
constables, should now be deemed to be exclusively vest-
ed in Justices of the Peace.

The judgment of the Circuit Court is, therefore, revers-
ed, and the case remanded with instructions to dismiss
the motion.

Morehead ^ Reed for plaintiffs ; Todd for defendants.

Franklin Ins.
Company

Dbakr.

The statute of
1836 (Ses. Acts
302,) construc-
tively repeals all
prior enactments
denouncing pen-
alties against
constables for
failing to return
executions, and
Justices of the
Peace alone have
original jurisdic-
tion in all such
cases — right of
appeal to the Cir-
cuit Court exists
where the a-
mount exceeds
JC5.

Case 24.

September 25.

The Franklin Marine and Fire Ins. Co. Covenant.
of Phila. vs James G. Drake.

Appeal faom the Jefferson Circuit.

Joint Tenants, Husband and wife. Policies of .

Insurance.

9n>ot EwiNO delivered the Opinion of the Court.

This is an action of covenant instituted by Drake The case stated,
against the Franklin Insurance Company, to be indem-
nified for a loss occasioned by fire, upon a policy effected
by him with the Company, on two-fifths of three three-
story brick houses in Louisville. The case was submit-
ted to the Circuit Court on an agreed statement of facts,
^ a judgment rendered for the plaintiff, for the whole
amount insured, with interest from the time payment

2bm 47
103 4U

:%m47
113 3M

BEN. MONROE'S REPORTS.

Fhanklin Ins.
CeMPAvr.

Facts agreed in
the Circuit Ot.

should have been made, according to the terms of the
policy, and from this judgment the Company has appeal-
ed to this Court.

So many of the facts agreed as are necessary to a de-
termination of the points involved in this controversy,
are the following.

General Robert Breckinridge owned the three houses,
on the two-fifths of which Drake affected his policy, to-
gether with other estate, and devised the one moiety
thereof to James D. Breckinridge, in trust for his daugh-
ter, and the other moiety to Maria Breckinridge, in trust
for the five children of Henry Breckinridge. In a divis-
ion of the estate, the three houses fell to the children of
H. Breckinridge, of whom Drake married one, named
Margaretta, and Robert, another, sold his interest to her,
by which she became entitled to two-fifths of the three
houses. Drake and his wife had a living child. In this
condition of the estate, the naked legal title still re-
maining in Maria Breckinridge, Drake, on the 20th of
December, 1839, effected with the appellants an in-
surance of his two-fifths in said houses, for one year,
viz:l|333^ on each house, amounting in all to $4000.
Subsequent to the insurauce by Dake, to wit : on the 3d
of January, 1840, Mrs. Maria Breckinridge, as trustee,
effected an insurance for one year, on the three houses,
with the Spring Garden Insurance Company, by a policy
containing the following language, ^'witnesseth that the
Spring Garden Fire Insurance Company have received
of Maria Breckinridge, Trustee &c., seventy-six dollara
premium for making insurances upon the property herein
described, viz: ten thousand dollars on three three-story
brick houses, occupied, &c., situated, &c., to wit:
$3333 33i on each building, $10,000, at i per cent, and
policy, $76."

This policy was effected without the authority, consent,
or knowledge of Drake, nor had he any notice of it un-
til after the buildings were consumed by fire, which hap-
pened in April, 1840, and was no party to an adjustment
made between Mrs. Breckinridge and the Spring Garden
Company, whereby she received $8671 60, and claim-
ing to have insured for the three-fifths only of her infant

FALL TERM 1841.

cestui que trusts, applied the whole amount towards re-
building houses on the ground which, afterwards, in a
division between them and Drake and wife, was allotted
(0 thefl], and Drake and wife received no part of it.

It was agreed that the houses, when consumed, were
wortfi $12,000, and they were then renting at $3600 a
year, payable quarterly. It was proven by Mrs. Breck-
inridge and James M«irshaU« the agent of the Spring Gar^
dea Company, who drafted the policy for Mrs. Breckin-
ridge, that the insurance wae intended to cover the inter-
est of the three younger children only, and that applica-
lioQ was made to insure for their three-fifths only, and the
agent notified at the time, that Drake had insured his two-
fifths at the Franklin Office, and she desired to insure at
S10,000, for the other three children. The competency
and sufficiency of this evidence wa^ objected to by the'
counsel of the defendant and the whole matter submitted
to the Court.

The sixth article of the printed terms of the Franklin
Office, annexed to Drake's policy, contains the follofving

provision :

•*VI. Persons insuring property at this office must
"give notice of any other insuracce made on their behalf
"on the same, and cause such other insurance to oe ia.
"dorsed on their policies, in which case, each office
"shall be liable to the payment only of a rateable pro-
"portion of any loss or damage which may be sustained;
"and unless such notice is given, the insured will not be
"entitled to recover in caie of loss.*' And a similar ar-
ticle is contained in the printed proposal of the Spring
Garden Office>

Upon these facts several questions are raised.

1st. Had Drake any insurable interest?

2nd. Placing the second insurance, or that effected by
Mrs. Breckinridge, out of the question, had he a right to
recover the full value of the two-fifths of the houses de,.
stroyed, not exceeding the amount insured, or only a rate-
able amount, to be regulated by the amount of his indi-
vidual interest in the houses?

3d. Is his policy forfeited by his failure to give notice

of the poHcy effected by Mrs. Breckinridge? J^xkd —
Vol. II. 7

Fkankliit Iifi.
Company

DraKb.

60 BEN. MONROE'S REPORTS.

FRANKLrN Ins. 4tii. Gail he recover, on his policy, the whole amount
vs insured, or only a rateable amount of his loss?

I. Drake had unquestionably an insurable interest in

Husband \vho8e
wi

fehastiTie to the two- fifths, and had a right to effect the policy. He

jo^^\ tenant with ^^^ ^ ^^S^^ to the use and enjoyment of the premises or

others and who their rents, during the joint lives of himself and wife,

born alive to the and by the Statute, (1 Stat. Law, 444,) would be tenant,

sucftinsum" by the courtesy, after the death of his wife: Columbian

bieinterestinthe Insurance Company vs Lawrence, 2 Peters' Rtp. 43;

on! ""^^ ^ "^' 1 Phillips on Insurance, 26; 2 lb, 222-3, and 278.
In such case the H, We are equally clear, if his claim be unaffected

tlTe^po^ky^^sTr- ^V ^^^ second insurance, that he has a right to recover the

felted, hasa right whole value of the two-fifths in the houses destroyed, not

to recoTer to the , • , ^ /• i • •

extentoftheioss, exceedmg the amount oi nis msurance.
^mountnamfd^n If the assured had an insurable interest at the time of
the policy. ij^g insurance and also at the time of loss, he has a right

to recover the whole amount of damage to the property,
not exceeding the sum insured, without regard to the val-
ue of the assured's interest in the property. The amount
of the recovery will depend on the interest intended to
be insured, provided it be covered by the policy. A
moilgagor who has mortgaged to the full value of the
property, and whose equity of redemption has been sold
under execution, provided he has, at the time of the loss,
a right to redeem ; or a lessee for years whose lease is upon
the eve of expiring at the time of the loss, is entitled to re:
cover the full value of the property destroyed, not exceed,
ing the sum insured: 2 Phillips on Insurance, 278, 222;
1 76.41, and the authorities referred to.

The undivided two-fifths in the houses was intended to
be insured and was covered by Drake'^ policy, to the
amount of $4000, and he had an insurable interest at
the dale of the policy, and also at the time of the loss,
and had a right to recover the full value of the interest in
the houses, not exceeding the amount of the sum in-
sured.
The right of re- HI. We are equally clear that his policy is not forfeited,
case wnot affec- It is contrary to the principles . of justice, and cannot be
ownera°^''S deemed to have been within the contemplation of the
wards having parties, or to be lequired by any proper interpretation of
uuredata diflfer- the sixth article, that he should be made to forfeit his

FALL TERM 1841. 51

whole policy, for a failure to give notice of lliat vvljich Franklin Iks.
was done by another, without his privity or consent, and r«

of which he had no notice himself. __Drake^^

[ IV. And though the language of the sixth article, -any u"ma^l\''p?ovi^^

insurance made on his behalf/* is broad in its terms, and ^^J^^" ^^at^^u

in its literal import is not confined to an iusurance ef- shall be void in

fected by himself, or at his Instance, yet we cannot be- insurance i°8 el

lieve that it was the intention of the parties, or that the ^^^^^ p°openy

article should be so construed as to apply toanv other in- without notice—

, * such provision

sarance than those effected by himself or by his author- only applies lo
ity expressed or implied, or subsequent sanction: 2 Phil- anTe bythe^same
lips on Insurance, 225. If so, then might he, by the SorSther ^n
act of another, without his knowledge or consent, and owners.
even against his will, be made either to forfeit his whole
policy, for a failure to give notice, or be driven to abandon
his own contract, upon which he relied for indemnity, as
to one half or more, and to seek indemnity against anoth-
er office which might prove to be insolvent, and upon a
policy which he had no hand in eflfecting. %

The stipulation, requiring notice to be given, implies
that no other policy was meant than one that was or
should be effected at his instance or upon his authority.

Of such policies he must have notice and, having no-
tice, might be required to give it to the office at which he
had insured. But if the subsequent insurance, effected
on his account by another without his knowledge or sanc-
tion, be embraced by the terms of the article, then is
he required to do that which is impossible for him to do,
and, by the literal terms of the article, subjected to a for-
feiture of his policy for his failure to do it. We cannot
sanction such a construction.

Mrs. Breckinridge, who was invested with the naked
legal title, had the right no doubt, and it might have been
h«r duty to insure for her three infant cestui que trusts, but it
was not her duty and we are not prepared to concede that it
was her right to insure for Drake, without his consent, af-
ter she was apprised that he had effected an insurance at
another office. And if she had no right, then her insur-
ance without his knowledge, authority, or subsequent re-
cognition would not be such an insurance as is embraced

k ^

52 BEN. MONROE'S REPORTS.

FiAiTKLXH iNi. 'vrithiit the terms of the sixth article, according to our in-

Company ' o

v9 terpretation of it.

But, conceding that she had a right to insure, we are

satisfied that the proof is entirely sufficient to establish
ihe fact that she intended only to insure the infants' three-
fifths, and did not intend to insure for Drake's interest.
And that the policy if construed to embrace it, being
drafted in a hurry late in the evening, as is proven by
Marshall, the agent, was made to embrace it by mistake.
And we are equally clear that the proof is competent.
PsTol proof is Though in a controversy between Mrs. Breckinridge
plaS? ufe" cx^tent ^Dcl the Spring Garden OflSce, it might be incompetent
tended"!© be^ in- ^^^ ^^^ parties at law to set up and establish the mistake
■uTcdbya policy by parol proof, we cannot doubt that even between them
contradict tbo a court of chancery might afford relief. And if so, and
policy. j^ i^Q conceded that Mrs, Breckinridge's policy imports an

insurance of the whole interest, we are not prepared to
concede that Drake might not, in reply to the defence set
up bjthe Franklin Company, that another insurance had
been effected on his behalf, set up and established by pa-
rol proof, that that insurance was not intended to embrace
his interest, and was made to embrace it by mistake. If
he could not, then might he be deprived of the full benefit
of his own contract, not only without his own authority or
consent but without the intentional act even of Mrs. Breck-
inridge.

But there is nothing in the terms of Mrs. Breckin-
ridge's policy which necessarily imports that she did in-
sure the whole property.

She, "as trustee, &c.," without stating for whom, "in-
sures ten thousand dollars on the houses," without stating
on what interest in the houses, or whether on the whole
or on a part, on the interest of the infants alone or on
their interest as well as the interest of Drake.

Now as it was her diUy to insure for the infants, and
unquestionably not her duty to insure for Drake, after he
had insured, it might be faiily implied that she insured
that interest only which it was her duty to insure, and not
an interest which it was not her duty to insure, and which,
after she had notice of the prior insuiance, it is question-
able whether she had the right to insure without authority.

FALL TERM 1841.

There being nothing in the policy absolutely implying
that tbe whole was insured, and nothing in its terms which
would necessarily lead the mind of Mrs. Breckinridge,
when she effected the policy, to the conclusion, that the
whole interest was insured, we are of opinion that
there is no such absolute repugnance between the terms
of tbe policy and the parol proof as to render it incom-
petent to establish the fact of the interest insured or in-
tended to be insured.

Judgment of the Circuit Court affirmed with costs, &c.

Crittenden and Wolfe for appellants ; Gw/Anc for ap-
pellee.

Lively

rs
Ball.

Lively t;^ B all.

Error to the Campbell Circuit.
Instruction. Testimony,

CiiEF Justice Robebtson delivered the Opinion of the Court

For the fifth and, as we trust, the last time, these par-
ties are in this court, litigating conflicting claims to a
small tract of land on the Ohio river. The former opin-
ions of this Court, reported in 2 /. /. Mar, 181 ; 1 Dana,
60; 4 75. 369; and 8 lb, 312, will show all the material
6cts involved in the case we are now revising, on a writ
of error prosecuted by Lively to reverse a judgment for
eviction from the whole of the land in contest in this
«oit, and which was rendered on a verdict obtained by
Ball since the last return of the case from this Court to
the Court below.

On this last trial there was, we think, no proof of
faind or available mistake in the execution of the con-
tract under which Lively re-entered as the tenant of Ball,
in the year 1826, unless such fraud or mistake should be
sofficiently manifested by the character and legal effect of
4e judgments, in virtue of which Lively had just been
evicted at the instance and for the benefit of Ball. And,
as has been hitherto plainly indicated by this Court, there
K no such intrinsic proof of either fraud or mistake as
^wAiper sc compel, or perhaps even authorize a jury to

Ejectment.
Case 24.

September 16.
The case stated.

Without proof of
fraud ormidtake,
in the execution
ot a lease, the
tenant wil] bees-
topped 10 deny
his landlord's ti-
tle.

54 BEN. MONROE'S REPORTS.

Lively exonerate Lively from the estoppel resulting from the
Ball. lease.

Moreover, the record now exhibits some countervailing
testimony, tending to the conclusion that Lively, knowing
that he had no available title from either Mrs, Cook or
others of Young's heirs, and doubting, as he well might,
whether he could be protected to any useful extent by the
limitation of seven years, determined spontaneously, and
understandingly, that the best thing he could then do was
to abandon all pretence of claim to the land as his own,
apd re-enter and occupy as BalVs tenant.
This CouTt mU We cannot, therefore, distuib the last verdict unless
"^''crro^of the ^^® i"''y ^^^ misled by the Circuit Judge, or he erred in

Couriin an in- Rejecting or admitting testimony. Seven instructions

Btruciion on one jo o j ^

point where the were given at the instance of Ball and eight on the other
right^on^imoSier side; six of those given for 5aZZ are unexceptionable —
P^"*^ one only exhibits the semblance of error, and that is the

fifth. But this error, if it be one, could not be deemed
prejudicial, because, 1st, Ball seems to have been entit-
led to a verdict on the estoppel alone: 2d, the fifth in-
struction, given at the instance of Lively , gave to the jury
the true principle of law applicable to the only facts as-
sumed in Ball's fifth instruction; and we are satisfied that
the jury was not misled or influenced in their verdict by
Ball's fifth instruction.
ThisConrt will The only question made as to the admission or rejec-
BccounT of ^ the ^^^ of testimony arises from the rejection of Rchert
exclusion of Youug as a witness. First called to prove the execution
mony^uniess * it of the conveyance by Cook and wife in 1815, he was re-
mTy^haTl teeJ J^^^^^ ^Y ^^ Court asjncompetent, on the ground that,
injured thereby, being a brother of Mrs. Cook, he was interested in Live-
ly's success, because, if Ball should succeed, he ( Young)
might be liable for some restitutionor re-partition to Mrs.
Cook; but nevertheless, the deed was admitted as the
conveyance of Cook alone ; and so far, even if Young
had been competent. Lively cannot complain of his re-
jection in the first instance, because the only fact which
he could have proved, that is, the execution of the deed
by the husband, was admitted. The same witness was,
however, called again to testify generally ; but as to what
matter the record does not intimate, and was again re-

FALL TERM 1841.

jcctcd on the same ground. In this last rejection there Evakts

was, iaour jadgment, no prejudicial eiror, because it not Commqkwealth

only does not appear that the rejected witness would have

proved anything material, but it does rather appear infer

entialiy, that he would have proved nothing available;

and moreover, he should, in judgment of law, bedeemed

interested on the side of Lively, in the event of this

action.

Wherefore, perceiving no substantial error for which
this last judgment should be reversed, and especially after
so many trials, we are of the opinion that there should be
an affirmance.

It is, therefore, considered that the judgment now
sought to be reversed, be and the same is hereby af-
firmed.

Ovsley fox plainti£f; Cotes and Lindsey for defendant.

Evarts vs Commonwealth.

Error to the Jefferson County Court.

Bastardy,

JcMs EwiiTG delivered Uie Opinion of Uie Court

The mother of the bastard child was sworn, and
enough was proved by her to authorize the judgment.
There having been no plea or objection made to the juris,
diction of the Court, from the fact proved, **that the/a-
Ihtr was in the county, and it appearing that he was taken
in the county, and further, that the mother was there and
the child born there, we are warranted in presuming that
be was a resident, and that the Court had jurisdiction of
^e case. And in the absence of all proof as to the abil-
ity of the father or the condition of the parties, we can-
not say that the County Court abused a sound discretion
in requiring one hundred dollars a year for seventeen
years, to be paid for the support of the child. The amount
^ large, and larger than we would feel warranted in al-
lowing in an ordinary case, and under ordinary circum-
stances. But much must be confided to the discretion of

Motion.
Case 26.

September 2S.

$100 per year
for 17 years may-
no t be too large
a sum to adjudge
the father of a
bastard child to
pay, and in the
absence of all
proof, as to the
circumstances of
the putative fa-
ther and mother,
this Court will
not presume that
the County Court
has abused its
discretion.

56 BEN. MONROE'S REPORTS.

HARinif the County Court in these cases, and we d« not feel at
Caiv etai. liberty, in view of the powers conferred upon that Court
by the statute, to disturb the amount allowed by the Jus-
tices, unless a very flagrant case of abuse of power was
made clearly to appear.

Judgment affirmed with costs.

Morehead and Reed for plaintiff; Cales, At, Gen, for
Commonwealth.

Chancery. Hardin vs Cain et al.

Case 27. Error to the Muhlenburg Circuit.

Kentucky Treasury warrants. Entries, Land titles.

September 28. Judob Ewino delivered the Opinion of the Ck>art.

The case stated. Mark Hardin claimed title to two hundred acres of

land under a certificate issued by the commissioners un-
der the headright law of 1798, to Stephen Tate, and a
survey thereon, made in 1799, and patent issued thereon to
him in 1835, as assignee of one Cates, as purchaser of said
claim at the Register's sale, filed his bill against John J.
Cain and John Cain, to compel them to release to him
their elder legal title, claimed by virtue of a patent issu-
ed in 1830, on a survey made on a Kentucky Land Office
warrant. The Circuit Couit decreed John J. Cain to re-
lease, John Cain having disclaimed title, and the former
has brought the case to this Court.
AU witTies for It is provided by the 10th section of the act of 1815,
m2deT!Si\^urhor! (StaL LatDS, 1022.) -for quieting litigation/' that all en-
ized by law to be tries heretofore made, and all titles founded upon surveys
act ofi8i5(Stat. heretofore made, which for the time being were authorized
io,T^"for «juietl to be made, shall be deemed superiorto surveys made upon
i^ liUgation/* warrants obtained by virtue of this act, notwithstanding
founded on aur- any alleged vagueness in the erdries or certificates on
made, are supe- which surveys were founded, and notwithstanding such
vey made^onKy' surveys may not be made conformable to entry,
land wairant, fhis section is decisive of the controversy between the

though ^he en- . xt j* i

tries may be claims m contcst. Hard u) having established the execu-
vagtiean ^ jmg^ tion of his siirvey as early as 1799, and identified the

FALL TERM 1841.

land embraced by it, and shown that it was made by vir-
tue of a certificate duly and regularly emanating from the
commissioners, who were appointed by law to grant such
certificates, cannot, in a contest with the defendant's
claim, be driven to establish its specialty or the notoriety
of the objects called for by it; his survey, thus executed,
is paramount and superior to the claim of the defendant,
and his patent theieon confers upon him a superior equity
to the land in contest.

Nor can the defendant be permitted to go behind the
patent and question the regularity of the assignments,
whereby the complainant became invested with the legal
title to Tate's claim. The patent having issued to him,
it must be presumed that it was issued upon competent
and sufficient evidence of a regularly derived title from
the original holder. And indeed, we cannot admit that
he may not assert against any adversary claimant, all the
rights which the patent confers, until the same shall be
annalled or the legal right is wrested from him, by some
prior claimant of the inchoate title ; and until that is
done, the adversary claimant cannot go behind the grant
and impeach it on the ground of irregularity in the as-
signments, or in the prior derivation of title; these are
matters, inter alios acta, in which he can have no coa-
cem, and by which his interest is in no wise affected. It
cannot detract in the slightest degree from his titte, whether
the grant has issued to one man or another.

Decree affirmed with costs.

Morehead df' Reed for plaintiff; Owsleij for defendant.

Clark

You NO et al.

thereon may not
conform to thu
entries.

Defendsnt la
■iich case, not
permitted to gp
oehiud the pa-
tent and con-
t0Bt the regnlari-
if of complain-
ant's derivation
of title, the pa-
tent is presumed
to have issued
upon competent
evidence of tiUe
as a^inst ahoU
derofa treasury
warrant c]aim«

Clarfc vs Young et al.

Error to the Fayette Circuit.
Bar in equity. Injunctions.

CfliEF Justice Robebtsok delivered the Opiilion of the Court.

Bksvjamin Grimes having enjoined, on the ground of _ , ^ . .

usury, a judgment which had been obtained against him thede?reeofthe

by John Clark, on a note for $122, executed in the year ^'''''''^ ^"^^^
Vol. II. 8

Chancery.
Cflwc 28.

September 28.

58 BEN. MONROE'S REPORTS.

Ci^ARK 1829, for a supposed balance of an old loan, upon which*
Yovifoetal as alleged, much more than the principal had been paid;
his injunction was afterwards dissolved, because the in-
junction bond had been lost and he refused to execute
another, and at a subsequent term, his suit v/as abated by
his death.

Subsequently Clark brought a suit in chancery for en-
ibrcingthe lost injunction bond against Joh7i Young, the
surety therein, and James E, Davis, the administrator of
the principal obligor. Grimes, and obtained a decree pro
confesso, his bill being unanswered. Afterwards Young
and Davis filed a bill for reviving Grimes' original suit,
and for enjoining Clark's last decree, for errofs alleged to
appear on its face; but upon hearing, the Circuit Judge
dismissed this bill. Before the close of the term at
which that decree of dismission was rendered, Young
and Davis appeared and filed a petition for opening the
decree for alleged errors appearing in the record, but by
mistake or some clerical misprision, no entry was made
on the order book noticing the petition or the lecognition
and continuance of it by the Court; and afterwards Younff
and Davis filed a bill alleging these facts, exhibiting the
pretermitted petition, and praying for a revivor of the
abated suit of Grimes, and for an injunction against the
decree on the injunction bond. In his answer to this last
bill Clark relied on his decree on the last injunction bond
as a bar, and moreover insisted that the lecord did not
ishow that there was available usury in the note on which
his judgment had been obtained : but on the final hear-
ing, the Circuit Judge perpetually enjoined Clark's de-
cree, excepting as to only about $12, and he now seeks a
reversal of that decree.

If an injunctiom ^^ *^^ allegations by Young and Davis respecting the
enjoining a judg- petition are virtually admitted by Clark's answer, there

mcnt allaw, on ' , j - ^ ^i ^ i • i » -n i i i i n i

Uie ground of n- can be no doubt that their last bill should have all the
S^X^'^u!? effect to which their first was entitled; and the first ques-
giound of usunr lion to be considered, therefore, is whether, after the de-

cannot be legiU- i_ j r

mateiy relied on cree by default on the lost injunction bond, the bill by
JJiry,^ brought to" Young and Davis was maintainable? And we think it

set up the /irt in- -.,ft«
junction bond, ^*^-

FALL TERM 1841. 59

If the injunction had been properly dissolved on ac- Clark
count of the loss merely of the injunction bond, a decree YowoetaL

for enforcing the last bond could not have been resisted bnt if the iniunc-

by Grimes himself, on the ground of usury, which he was edVcause Tife

litigating in the very suit in which the dissolution had toSecutrane^^^

been decreed; and, of course, neither his surety nor injunction bond,

administrator, by reviving, as they had a right to do, his bar to th6 adm'r.

abated suit, could have resisted the decree for dissolution comp*rt!*'^^in °a

on the same ffround; for if this could be done, the inter- "®^ ^*^* setting

° ' , . . up u^ury m th©

locutory dissolution of an injunction may always be made oriffinai transac-
una vailing as long as the principal suit shall remain un-
decided.

And if such a dissolution as that exhibited in this case
should not be enforced by a court of equity, because, on
its face, it was irregular and unjust, and should have been
only a discharge instead of a dissolution, still the failure
to answer Clark's bill on the lost bond did not preclude
Young and Davis from an equitable right to review the
decree by default, for errors of law apparent therein.

And if it be admitted that a bill of review should not Although anin-
be sustained on such facts as those appearing in the re- i^avebeenimpro^
cord of Clark's decree on the lost bond, nevertheless, ^117/^^1^5^^:
we have no doubt that Davis might still have levived his ^a?t pending

... 1,1 • 1 ■ , . when a final de-

intestate s original suit, and have been entitled therein to cree is made in
sach a final decree for relief as Grimes himself might compUtf^'sh'ow
have obtained after the dissolution of his injunction and JlJ^^e^Jeiiefpray^
the enforcement of the injunction bond, had he lived and edfor, it wiUbe
had his suit therefore never been abated by death. And the^^'^injunction
although upon such a bill of revivor merely, it might have S|?omp^Vt.**ma7
been improper to en/oiw Clark* s decree on the injunction show himself en-
bond; yet as it was in fact enjoined, it was not erroneous
to perpetuate the injunction, if on the final hearing,
Grimes' administrator would have been entitled to a de-
cree pro tanio for restitution, had there been no injunc-
tion and had the amount decreed to Clark been paid^
either by the administrator or by Young ns surety; for,
on the hypothesis suggested, it would have been idle and
unreasonably vexatious and circuitous to dissolve the in-
junction against Clark because it had been improvidently
granted in the first instance, thereby remitting him to his
original right to enforce that decree by execution, and

60 BEN. MONROE'S REPORTS.

Clask then at the same time to decree that he should restore the
YouNe etai greater part of the amount of that decree at the instant of
^ its collection.

We are of the opinion, therefore, that the decree now
complained of should not be reversed, if, in the revived
auit of Grimes, it vras proper to decree^that there was as
much usury in the note jof 1829 as the Circuit Judge de-
cided that there was. And upon this last point we have
no great difficulty. If, as alleged in Grimes* original bill,
the amount of the loan was only $150, there can be no
doubt that the whole of the note for $122 was given for
usury. Clark denied that the amount of the loan was as
small as $150, and alleged that it was at least $175 or
perhaps $200. Grimes also alleged that several years
after the loan, towit: in the year 1820, he executed two
notes to Clark, one for the principal which^had been loan*
ed, and the other for the usurious ^interest which exceed-
ed in amount the sum loaned, and that the smaller note
for principal was for $178. These allegations were not
responded to by Clark, and there is no extraneous proof
as to the amount of the oiiginal loan.

Upon these facts the Circuit Judge had an unquestion-
able right to assume that not more than $175, or $178 at
the utmost, bad been loaned by Clark to Grimes. He
assumed $175 as the maximum amount of the loan ; and
on that assumption, there being clear proof of usury in
the loan, his decree is not for two much. Perhaps he
might have been more certainly and exactly right had he
taken about $178 as the amount of the loan — but this is
not absolutely certain, and even if it were, the difference
in the result would be too trifling to notice, especially af-
ter all the vexation and expense to which Grimes and his
surety and administrator have been subjected by the per*
severing efforts of Clark to enfoi ce usurious exactions.

It is, therefore, the opinion of this Court, that the de-
6ree now sought to be reversed should be, and conse-
quently it is, affirmed.

Pindcll for plaintiff; Robinson 4- Johnson for defen-
dantSi

FALL TERM 1841.

Woodard vs Fitzpatrick,

Appeal from the Pulaski Circuit.
Mortgagor and mortgagee. Practice in chancery,

Cnsr JuanOB Bobehtsor delivered the Opinion of the Court

The principles for determining the rights of these par-
ties were settled by this Court in an opinion reported in
9 Dana, 117.

In execution of the mandate of this Court, the Judge
below appointed commissioners, whose report was after-
wards approved ; and thereupon, after directing the re-
ported credits, he rendered a peremptory decree for selling
the mortgaged slaves for the balance still remaining due
to the mortgagee; and the mortgagor again appeals to this
Court, and complains, 1st, that he has not been allowed
for hire, as much as he is entitled to claim, and, 2dly, that
the decree for sale was erroneous.

The first general objection to the decree is not, in our
opinion, maintainable. FUzpatrick is charged by the
commissioners and by the decree with as much for the
use of the slaves, whilst in his own service, as the testi-
mony authorized, and he is charged with the whole
amount for which he hired them to others whilst they
were not in his own immediate possession. This was
certainly as much as equity could exact from a mortga-
gee for profits of the mortgaged property, who, when not
guilty of fraud or culpable negligence, is never required
to account for more than what he received in the use by
himself or for hire from others. In hiring the slaves,
the mortgagee in this case seems to have acted in good
faith, and to have reserved a reasonable hire, to-wit, $10
a month for each of them ; and we may well doubt whether
ho ought to have been, as he was, charged with the
whole price without any abatement for occasional loss of
time or for incidental expense; for by his contract of hir-
ing by ihe month, every day lost by the slaves was to be
deducted in the computation of the time of their service,
and all medical charges were also to be borne by him;

CHiNCERY.

Case 29.

September 28.
The case stated.

Kquity will re-
quire moTtgagee
to account for
the value of the
hire of slaves
whilst in his pos-
session, and the
amount for which
they were hired
to others by him,
tip to the render-*
ing of the final
decree*

WOODARD
FiTZPATRlCK.

On bill filed by
moria^oT to re-
deem, if a bal-
ance be found by
the chancellor
still remaining
due, it is errorjto
decree a sale
forthwith of the
mortgaged pro-
perty; day should
be given to mort-
gagor to make
pHyment, and in
default of pay-
ment in a reason-
able time, to be
prescribed by the
chancellor, then
to dismiss his
bill absolutely,
or a sale if either
party desire it.

BEN. MONROE'S REPORTS.

and even withont express proof, we might presume that
in the course of one year, some abatement from the ag-
gregate price of monthly hire, (S120) had resulted from
Joss of time or otherwise, according to the contract: nev-
ertheless. Fitzpatrick is charged with the entire S120a
year for each of the slaves: more, certainly, .could not*
be reasonably demanded.

Nor are we disposed to disapprove the credit allowed
in the decree for SlOO paid by Fitzpatrick to Woodard
in 1830, as proved and not controverted before the com-
missioners. As there was no proof of that payment
when the former opinion, sitfra, was delivered, we said
then that he appeared to be justly chargable for the entire
value of the use of the slaves for the year 1836; but as
he was permitted to prove that payment before the com-
missioners, we will not be so rigorous as to refuse credit
for it, merely because he had not proved the fact sooner—
and especially as the charge against him for hire rather
seems to be exorbitant for a portion of the time whilst
the slaves were in the service of his bailees. In the re-
port of the commissioners, as approved by the final de-
cree, we perceive nothing of which Woodard ought to
complain.

But the decree for selling the slaves was, not only pre-
mature and irregular, but altogether anomalous and un-
authorized. No such decree had been sought by either
party; and this Court having decided that Woodard htidn
right to redeem the slaves, the only allowable decree was
to give him a reasonable day for paying the amount as-
certained to be due to Fitzpatrick, and in the event of
payment, to have compelled a restitution of the slaves,
and in the event of unreasonable failure to pay, to have
dismissed his bill absolutely, and thereby barred his
equity of redemption as sought to be enforced, or decieed
the sale of the slaves if either party desired it.

Woodard had an unquestionable right to some indul-
gence. He did not know whether any thing or how much
would be due to Fitzpatrick until the Circuit Judge ren-
dered the decree for selling the slaves which he was seek-
ing to redeem. When the Judge determined that a bal-
ance remained due to the mortgagee, he ought to have

FALL TERM 184L

fired the exact amount thereof in his decree, instead of
referring, as he did, to a commissioner to make the cal-
culations out of Court and in vacation: and when fixed,
he ought to have given a reasonable and prescribed day
for paying the ascertained balance in Court, reserving,
of course, as would have been implied, the right to extend
the day, if sufficient cause for such further indulgence
should be made to appear.

The decree for a sale of the mortgaged slaves is, there-
fore, erroneous, and must be reversed and the cause re-
manded, with instructions to ascertain the precise amount
which the mortgagor should still pay to the mortgagee,
and to give a reasonable day for payment thereof in
Court, and in the event of non-payment, to dismiss the
bill absolutely, or decree a sale as before suggested; but
if payment shall be made as required, within reasonable
time, to compel a restitution of the slaves and then de-
liver over to the mortgagee the money deposited in Court
to his use. A prolongation of the account for interest and
for hire, to the date of such final decree will, of course,
be proper.

Decree reversed, &c.

Owsley for appellant; Harlan for appellee.

Marti If

SUELTON.

Martin vs Shelton.

Error to the Woodford Circuit.
Ejectment. Mortgagor aiid mortgagee,

JrosE Mabsball delivered the Opinion of the Court.

It was decided in the case of Dougherty \s Linthicum,
i Dana, 198, and we still adhere to the opinion, that the
execution purchaser of the mortgagor's interest in land,
having received a deed, may maintain ejectment against
the mortgagor. The possession of the mortgagor is pri-
^ facie evidence of the right of possession. This prima
facie right is transferred by the sale and deed, to the exe-
cution purchaser, and the mortgagor cannot defeat it by
^wing an outstanding legal title in the mortgagee or

Ejectment.
Case 30.

September 28.

A purchaser un-
der execution, oi
a mortgagor's in-
terest in land,
having received
a deed, may
maintain eject-
ment against the
mortgagor.

The possession
of the mortga-
gor iaprimafade
eridence of the
right of posses-

64 BEN. MONROE^S REPORTS.

Martin another. Whether this doctrine be or be not applicable
Shblton. to a private sale and conveyance of the mortgagor's interest.

sion. This prima it secms necessary in order to give beneficial effect to the
{estothe^purcha" Statute, which in subjecting the mortgagor's interest to
'^rocuriagadee^ ^^'® under execution, may be regarded as imparting to it,

in some degree, the character of a legal estate, at least
so far as to effectuate between the mortgagor and the pur-
chaser the proper advantage which should result from the
transfer of the mortgagor's right in the land.
Nor will thepen- Nor does the pendency of a suit to foreclose the mort-
to "S'tedoBe \h6 S^S® affect, in any manner, either the right of selling the
mortgage affect mortgagor's interest under execution, or the consequence

in any manner, -,, ...r . ii ,

the purchaser's of the Sale; as agamst the mortgagee and the purchaser

iStereat of^mo^t^ under the decree of foreclosure, such sale would be wholly

?o?edos re"\nd J^^^P^rative and could present no obstacle to the enforce-

Bale. ment of the rights of either — and this is the meaning of

the obiter expressions referred to in the case of Addison,
df'C, vs Crow, <^c, 5 Dana, 280, which are used in rela-

tion to a contest between the purchaser under the decree
of foreclosure, and the purchaser under execution against
the mortgagor, and which refer particularly, not to a sale
of the mortgagor's interest as authorized by the execu-
tion, but to his surrender for sale by the ofiScer, of more
of the mortgaged premises than was necessary to satisfy
the execution.

The fact that the mortgagor had a right to redeem his
interest and was defeated in the attempted exercise of
that right, whatever effect it may be entitled to in a Court
of Equity, as to which we do not decide, can have none
in this action of ejectment, since it does not tend to prove
that the purchaser is not invested with all the rights of
the mortgagor.

Little reliance was placed in argument, upon the ob-
jection to the manner in which the deed was signed and
sealed by the officer who executed it, and we need only
say, that though the execution of the deed was informal,
we are of opinion that however it might be in the case of a
private individual, it should be deemed valid as the act of
the deputy sheriff, who has affixed both^his name and seal.

Wherefore, the judgment is affirmed.

M^rchead ^ Reed for plaintiff; Owsley for defendant.

FALL TERM 1841. 65

Ewin vs Ware et al. CHAifCERT.

Appeal from the Todo Circuit. Case 31. |

Limitation. Surplus land.

CiiBP Juarici RoBBBTSON delivered the Opiaion of the ConrL Sepiemhgr 29.

Eighteen years after a sale and conveyance of a tract case itatedand
of land by Ewin to Anderson, and after the vendee had clJiliit cSmrt'*
died, the vendor sued his representatives in chancery for
compensation for an alleged surplgs of about 62 acres;
and the Circuit Court having dismissed his bill, he has
appealed to this Court. '

Admitting that the surplus was such as to have once
entitled Ewin to some relief in equity, he seems to have
slumbered too long to invoke, with success, the help of
the Chancellor.

As the conveyance passed to the vendee the legal title The reeoTery for
to the whole of the land within the designated bounda- ^SJSd^wSSid'be
ries, Ewin*s equitable claim was for the price of thesur- bwredbyaUpB©

. , ox five years; a

plus not contemplated or hitherto paid for; and to enforce conn of eqaity
that equitable claim, his suit was instituted. In a case 7amt 'umftation
of concurrent jurisdiction, a legal remedy for such a de- muSlehadbeea
mand would have been barred by the lapse of five years. ^ ought to have
A court of equity should apply the same limitation when- more than five
e?erthe mistake had been, or ought to have been discov- Jro"jht^°'* '^^^
eied more than five years before the commencement of
the suit.

Now in this case, facts are proved which conduce where Uie proof
strongly to the presumption that Ewin was apprised of Mm'iS^n^JJ'*^
the surplus five years at least before he claimed compen- vendor knew
sation for it in this suit; and besides, having had reasop plus in a'trae'tof
to believe, (as seems very probable) at the date of his ISf*} ~°«ISilte
conveyance, that there was a surplus in the tract beyond ^Wwt man
the estimated quantity of 333 acres, and continuing to re- known it, more
side ever since, in the neighborhood of the land, he ought, before 'he^filea
as a reasonably vigilant man, to have ascertained, sooner ^n»aiLnfoT3?e
than be says he did, the actual existence and extent of surplus, chance-
the surplus, and especially as others in the same neigh- Ueve.

borhood had knowledge of it from about the date of bis
Vol II. 9

68 BEN. iMOiNROF;^ REPORTS.

BoBKis, &c. lerprclation of the section referred to, it cannot, as such
HowABD. a pleof, have the effect of requiring proof of the assign-

nient, that is, it cannot have any effect at all, unless ac-
companied by oath. It is contended, however, that the
form of the oath prescribed, shows that the statute did
not intend to require any plea to be sworn to except one
which denies the assignment by charging that it was
forged, and that this plea makes no such charge. But
this plea does charge forgery, as much as it charges any
other fact which would show that the assignors are not the
obligees, and as much as forgery would be charged by
the simple assertion that the note never was assigned to
the plaintiff, or that the obligees bad never assigned it to
him. The plea, in its present form, would certainly be
supported by proof of forgery, and although it might be
supported by other facts, it is by no means certain that it
was not intended to charge forgery.

Besides, if the form of the oath which the statute pre-
scribes is alone to be considered in determining what
plea is to be sworn to, it would seem rather to follow
from a proper construction of the entire section, that the
plaintiff could not be required to make proof of the as-
signment, unless it was denied by a plea containing the
charge required to be sworn to, than that he could be re-
quired to make such proof by a plea denying the assign-
ment in any other form and unsuppoited by oath or affi-
davit; for according to the letter of the statute, the only
condition on which the plaintiff can be required to prove
the assignment, is that the defendant shall annex to the
plea denying it, the affidavit or oath prescribed. And as
a plea denying the assignment, but which would not re-
quire proof would be a nullity, it would follow, on this
constiuction of the statute, that no denial of the assign-
ment would be effectual unless accompanied by the par-
ticular oath prescribed.
Itianotnecenfa.- But although the Legislature seems to have contem-
^i^toa^piea^de"- pl**^^ forgery as the only ground of denying the assign-
nyingan wsign- meut, and therefore prescribed an oalh affirming that
terjM, charge charge, yet as there are Other facts besides forgery which
mcnt was forged* would show that there was no assignment, and other
anypieasubstan- modes of denying the assignment which do not involve a

FALL TERM 1841.

charge of forgery; and as it cannot be presunied that in a»mstmono
such cases the benefit of such a defence was intended lo Hodgei et ah
be taken from the defendant, we think the particular oath tiaiiy denying the
prescribed should be understood merely as an example ^vornTo"\s*aii
applicable to the particular form or ground of denial actu- \8®i2*^^coniem-
ally in contemplation — and that the object of the entire piaied.
section was to dispense with proof of the assignment,
unless it was denied by plea under oath; from which it
follows that any plea which would require proof of the
assignment, if issue were taken on it, must be sworn to
before the plaintiff can be compelled to take issue ; and
according to the practice in such cases, such plea, unless
sworn to, may and should be rejected as a nullity.

According to this view, which as we believe conforms
to the general practice of the Circuit Courts under this
statute, the plea waiving all intrinsic objections to it in
this case, was properly rejected.

Wherefore, the judgment is aflSrmed.

Owdey for plaintiffs ; Gates and Lindsey for defendant.

Armstrong vs Hodges et al. Chancery.

Erbor to the Franklin Circuit. Case 33.

Marriage. Slaves, Cohabitation. Policy of the law.

Cnip JosncE Robertson deUyered the Opinion of Uie Court. September 29.

Armstrong filed his bill against Hodges* heirs and The case stated
otbers, for a specific execution of a bond for a conveyance
of a small tract of land given by the ancestor, Hodges,
to a free white woman named Thomason Grady, who co-
habited with a black man named James Hog and some-
times called James Grady, and assigned by the obligee
and said James to the complainant. The alleged equity
was resisted on the ground of a previous sale by Thoma-
son Grady to William Jackson, whose equity had been
transferred to William Hodges, to whom the heirs of the
deceased obligor had made a conveyance. But the com-
plainant attempted to avoid this defence by insisting that
Thomason Grady was the wife of the said James, and^
that, therefore, her sale to Jackson was void.

70 BEN. MONROE'S REPORTS.

Armstrong The Circuit Court dismissed the bill, and we thir>k

HoDOEs et ah rightly.

Even on the presumption that Thomason Grady w^Sr
dejure, a mairied woman, there would certainly be great
difficulty in maintaiYiing that (he assignment by heiself
and husband to Armstrong, without any privy examina-
tion, passed to him an available equity, and especially
as he had notice of her prior sale, and the transferree of
her first vendee is entrenched behind the legal title fairly
obtained.
A marriage be- But, although there is abundant proof of cohabitation

twecn a free

white woman &. and occasional recognition, yet the fact that the said
^ii°not°be^pre' J^m^^^ was a slave whom the said Thomason had bought
habiution™ ^°* ^^^ never expressly emancipated, but sometimes threat'

ened to sell, would alone be sufficient to repell the pre-
sumption of marriage, which would result, in ordinary
cases, from mere cohabitancy ostensibly in the conjugal
relation ; a(id this repellant circumstance is fortified by
the additional fact that a heavy penalty, by imprisonment
and fine, is denounced against marriage between white and
black persons, by an act of the colonial Legislature of Vir-
ginia, of 1753, (Stat. Late, 1153,) which was adopted
by the constitution of this State, and is still in force here.
Under these circumstances, in the absence of raoie
direct and specific proof, the presumption should be, that
the relation between the black man slave and free white
woman, was that of concubinage rather than marriage;
and even if this be doubted, we are clearly of the opinion
that there is not sufficient proof of the said TTiomason's
coverture to require us to decide that her sale to Jackson
was void for want of legal capacity to bind herself or
make a valid contract.
Marriage be- Moreover, we are inclined strongly to the opinion thai
lonsaildllelf^^^^^^ ^^® marriage, if ever in fact consummated or intended,
is inconsistent was void as against the policy and implied prohibition of

"With decorum, ,,,,, r/ r ,ii

social order, the Jocal law. It rather seems to us that our local law
national ^senti- should be understood as prohibiting such marriages, as
S^^aga^Mt The inconsistent here with decorum, social order, public pol-
policy and impii- icy, and the national sentiment; and if so, they must,
Uie local law. therefore, be deemed unlawful, and of course void.

FALL TERM 1841. 71

The decree of the Circuit Court is, therefore, af- Cook
finned. Colyer's ap'r.

Todd for plaintiff; Morehead and Reed for defendants.

Cook vs Colyer's Administrator. Chancery.

Ebror to the Rockcastle Circuit Court. Case 34.

Mortgagor and mortgagee. Usury. Evidence,

Cucr Justice Bobebtson delivered the Opinion of the Court September 30.

Ih September, 1836, Loftus Cook filed a bill in chan- The case suted.
eery against the representatives of John Colyer, (who
died in 1832,) for redeeming a tract of land and a slave,
Preston, alleged to have been mortgaged to the decedent
by the complainant, in the year 1830.

The Circuit Court dismissed the bill without prejudice
as to the land, and absolutely as to the slave.

As CoIyer*s heirs admitted nothing in their answer,
wdno mortgage or other document concerning the land
vas exhibited, the decree of dismission, without preju-
dice as to the land, was as favorable to the complainant
81 he could have expected.

But the absolute dismission as to the slave was, in our
judgment, erroneous.

It appears that the slave had been delivered to Colyer
in June, 1830, to w^ork for the use of money which he
had loaned to Cook, and for securing which Cook had
fiven him a lien on the slave, as well as on his land —
that in November of the same year, one Slaughter, as
«gent of Cook, executed to Colyer a writing purporting
on its face to be an absolute bill of sale of the slave, for
the recited consideration of $424, the slave being then
worth, according to the proof, at least $800, and Cook
being peculiarly attached to him and having refused about
that time, to sell him for $750 — that Colyer was an in-
telligent man and had great influence over Cook, who
looked op to him as a friend and counsellor, and who
was, also, an ignorant, reckless, and credulous man, op-
pressed by debt — that Colyer frequently admitted, be-

72 BEN. MONROE'S REPORTS.

^ooK twecn the date of the bill of sale and his death» that he

Colyek's ad*h. still held the slave as security for money and for Cook's

benefit, and that, for the purpose of securing to himself
the undisturbed enjoyment of the use of the slave, which
was worth much more than legal interest on the loan, and
also for preventing a loss to Cook by a sale of his equity
of redemption by any of Cook*s execution creditors, he
(Colyer) hud ''procured*' horn him (Cook) the bill of
sale purporting to be unconditional.

It appears also, from the answer of Colyer's adminis-
trator, that he had in his possession, when that answer
was filed, a mortgage which had been executed by Cook
to Colyer in June, 1830,' on the slave Preston, for $424,
the precise sum recited as the consideration of the bill of
sale of November, 1830; and it clearly appears also, that
usury was exacted in the loan.
Where money is The exaction of usury and the doubtfulnes at least of
ISid^li? morte^'e S'/flM^'Afcr's authority to execute an absolute bill of sale
^iven to becuie for Cook, Opened that document to explanation and con-
paity afterwarda tradiction by parol testimony. There being neither proof
Bafe°bl\a agentf Bor presumption that any new consideration, in addition
yet if the author- to the loan, was ever advanced by Colyer, a court of
be doubtfai and equity would not incline to consider the conversion of the
q^aterSfe Chan- mortgage into an absolute sale, as closing the equity of
ceiior ^^^j^^^^^ redemption, had the parties intended such transmutation,
fold the whole But it is, we think, evident that there was no such intea-
8howthata"moTt- tion as between the parties themselves; and, for the rea-
tendeT-^ ml" Tn sons already suggested, the extraneous testimony was ad-
such a case, missible for the purpose of showing that a mortgage, and

where the moTt- i i . i i n • ^ j j

ga^ee has viola- not an absolute sale, was mutually mtended.

Indweks tohold But it is argued that Cook, as well as Colyer, designed

the absolute pro. a fraud on the creditors of the former in the ostensible

periy, tne unan- - , . , • i ••

fcciior will per- sale of Prcstou, and that, therefore, oemg in pan delicto,
Uon.* '® *^™P* he cannot be entitled to the aid of a court of equity,

which will not help to extricate a party from the conse-
quences of his own voluntary fraud. This is a formi-
dable consideration; but we are inclined to think that it
is not conclusively applicable to this case.
In pari delicto. The salutary principle of equity, now urged in bar of
??*'«■ ^9^^^' Cook's right to relief, should not be extended beyond the
<ioes not apply to reasou and policy which dictated it; and it does not.

FALL TERM 1841. 73

therefore* necessarily apply to a case in which the defend- Cook
ing party had himself first conceived the fraud for his own Colter's ad'k.
benefit, and either by his artifice or influence induced cases wheie the
the complaining party to concur with him in the attempt- first'*. conceiyeS
ed collusion. And such, as we are strongly inclined to hilown\effe£^
apprehend, is the true character of the transaction be- ?n^ ^y "lificc,
tween these parties. It does not appear that Cook had -plaining party to
ever contemplated or desired any fraudulent device for ®^*^^"'^-
defeating or delaying his creditors, or that he even under*
stood the object or effect of an absolute bill of sale; and
it does appear that Colyer, for his own obvious benefit
as well perhaps as for that of Cook, conceived and pro-
posed a scheme for securing the slave in his own posses-
sion, and urged it successfully on Cook, who seems, with
a childlike simplicity, to have confided in his judgment,
integrity, and friendship; and we do not even feel bound
to infer that Cook, when he finally consented that Colyer
and Slaughter might dp whatever they deemed best,
knew precisely what was intended or would be done, or
that, whatever it might be, it would be a fraud, either
actual or constructive.

We are, therefore, indisposed to subject Cook as a suit-
able victim to the rule,|"2n pari delicto potior est condi-
tio defendentis ;" were we to do so, we should, as we
think, pervert the principle to an end inconsistent with
its reason and subversive of its just and wholesome poli-
cy, and make it an engine for perpetrating, rather than
preventing the most pernicious and fraudulent of all kinds
of frauds.

We are, therefore, of the opinion that Cook is entitled
to redeem the slave, Preston, upon equitable terms — ac-
counting for the 3424 as principal, and legal interest
thereon, and being credited with the annual money value
of Preston's services to Colyer as a provident and hu-
mane man, and opposed to slavery, as he seems to have
been.

The lapse of time does not bar the claim to relief, be-
cause it does not appear that Colyer ever held the slave
adversely in fact to Cook.

And as the alleged mortgage on the land and lien on

the slave seem to have been intended as securities for the
Vol. IL 10

BEN. MONROE'S REPORTS.

Watson game loaa, it would be proper, on the return of the cause
Watson'bebibs. to the Circuit Court, to allow Cook to amend his bill so

as to litigate his asserted right to redeem the land also, if
he shall desire ever to do so.

Decree reversed and cause remanded for such further
proceedings and decree as shall be proper, consistently
with the foregoing opinion.

Owsley for plaintiff; Harlan for defendant.

Will case.
Case 35.

October 12.

Though the tea-
tatoroc 86 years
old, if he dictate
his will, and the
provisions mani-
fest intelligence,
sound moral sen-
timent, 6t be not
procured by du-
ress or other un-
•due influence, it
will be sustain-
ed.

Watson vs Watson s heirs.

Errob to the Madisow County Court.
Duress. Undue influence,

Cbixf Jdsticb Robertson delivered the Opinion of the Court

It seems to the Court that the facts, as proved here, pre-
ponderate decidedly in favor of the testamentary capacity
of Joseph Watson, when he duly published the contro-
verted document as his last will; the vague opinions to
the contrary, as expressed by some few of the multitude
of witnesses, are entitled to but little effectin opposition
to /flcte conducing strongly to the conclusion that the
venerable testator, though 86 years old and confined to
his bed by a local affliction called the gravel, had suflS-
cient memory and reason, to enable him to make a pru-
dent disposition of his small estate, according to his own
voluntary and well considered purpose. The single fact,
that he dictated the will and that its provisions manifest
intelligence and sound moral sentiments, would alone be
entitled to great consideration. An act so rational can-
not easily be presumed to have been the offspring of an
irrational or incompetent mind. But this fact is fortified
by many other subordinate circumstances.

The assumed unfitness of the bequest of a young stal-
lion to the testator's daughter Sally, should not, under
any circumstances, be entitled to the effect, as one wit-
ness thought it should be in this case, of proving either
incapacity or sinister influence. But this was his most
valuable horse. By the previous contract, Sally was to

FALL TERM 184L 75

have two cows and the best horse; the will was, there- Wamob
fore, only a confirmation in this respect, of the contract, WAnov'smzM,
and of course, this bequest argues capacity rather than '
the want of it. «

Nor is there any sufficient ground for apprehending that
the will was procured by duress or extraneous influence,
either sinister or controling. It does not appear that
either of the devisees ever suggested such a disposition of
the testator's estate as that made^ by this will, or that
cither of them ever knew, before his death, that he had
published such a testament. Their conduct on two or
three occasions, may have been somewhat unfilial, and
he may possibly have been, in some degree, stimulated
thereby to make the contract for his maintenance for the
year 1840. But this deduction, if even authorized, would
tend to repel rather than to fortify a presumption that,
almost immediately after making such a contract, the
testator was persuaded by his helpless condition and by
threats of desertion, to make a dififerent and far moie
comprehensive disposition of his estate by will. On the
contrary there is some reason for presuming that the will
is such as he had long intended to make, and substan-
tially such as the protracted and peculiar services of the
two devisees might have entitled them reasonably to
expect.

But however this may be, we are not authorized to pre-
sume that the will was procured by fraud or duress, in
the absence of any one fact tending to show that either
of the devisees ever sought or suggested such a testamen-
tary disposition, or even knew, during the testator's life,
that it had been made by him.

It is, therefore, considered that the order of the County
Court refusing probate in this case, be set aside, and that
the controverted document be admitted to record in this
Court, as the last will of Joseph Watson, deceased, and
the will be certified to the County Court of Madison and
be there also recorded, and for further proceedings.

Breck for plaintiff; Turner for defendants.

BEN. MONROE'S REPORTS.

October 13.
The case stated.

Chancery. Findley and wife, &c. vs Patterson's Ex-
ecutor and Devisees.

Cast 36* Error to the Adair Circuit.

Parent aud child. Trusts and trv^ees. Limiiation.
Estoppel. Adverse possession. Release.

Chibp Justicb Bobebtson deiiyered the Opinion of the Court.

In the year 1838, James W. Findley and Mary bis
wife, (a daughter of John Patterson) and Noah Wilcox
and George W. Wilcox, infant children of Nancy Hughes
Patterson, who was also a daughter of the said Jobn»
filed a bill in chancery against his representatives, for
sundry slaves claimed under a deed of gift made in 1810,
to the said Mary and Nancy, then infants, by their grand-
father, Blackmore Hvghes, of a female slave named Sa-
rah, who, as well as the said donees, remained for many
years in the family and under the control of the said
John, and whose children, as well as herself {the said
Sarah) are sought to be recovered from his representa-
tives, who deny the validity of the said gift, and rely
also on the lapse of time and long continued possession
by the said John, who died in the year 1838.

The Circuit Court dismissed the bill absolutely, and
that decree is now to be revised.

We are satisfied that Blackmore Hughes' deed, in
1810, vested in his two infant grandchildren an indispu-
table title to the slave Sarah, who had been sent by their
donor to their mother, shortly after her intermarriage
with their father, in the year 1805; for even if their father
might have been able to hold the slave as his own, under
a presumed gift to his wife, nevertheless, it is evident
that he renounced such a claim and was privy to the sub*
sequent gift to his two infant children after their mother's
death; and, therefore, his representatives are estoped to
deny that the title bad passed to those children.
The possession Nor do we doubt that the said John's subsequent pos-
of a father, of session of the said slave was, in the first instance at least.

slsTes deeded to •

his children, iea in the character of father and natural guardian of the true

A fathet who
assents to a con-
YeTsnce of slaves
to his children by
their grandfather
and holds them
as father of the
children, is a
troatee for the
children, and by
such assent
Vraives any prior
claim.

FALL TERM 1841. 77

ovoers, and that this implied trust gave juiisdiction in Fisdlbt&wi»e

this case to a Court of equity concurrently with a Court vs

- . Pattehson'sEx-

Of law. KCUTOR & DEVl-

8SE3.

Bat still we must concur with the Circuit Judge in the _
absolute dismission of the bill as to all the complaining a couTi^ifS

paities. *^«^y jurisdiction

^ to determine the

As to Findley and wife, the dismission seems to have right thereto con-

beeo proper for two reasons — first, whilst sole, and after coun'onaw.

she was 21 years old, that is in the yjear 1831, she re- though Uiechan-

leased to her father all her claim to the said slaves — and peiior will sub-

, , , , . 1. • 1 jcct to jealou»

though such a contract between parties standing m such a eciutiny a con-
relation should be subjected to a peculiarly severe and lenu^nd^chiidfSa
jealous scrutiny, yet there is no extrinsic proof of fraud, ^^rt^'^eid^b ^uie
mistake, or improper influence in the execution of the »ther as the na-
release; and we do not feel authorized to presume that the chiid/^e^,
it was not a fair and binding compromise of conflicting rx\dDBk*"proof
elaims considered questionable: Secondly, There can be ?^, ^'*H**' "»**•

'^ ^ take or improper

no doubt that, from the date of the release, the implied influence, hewiii
trust ceased, and John Po/^erson's possession was, as to Set "lisiTe^^thS
the said iliary, adverse in fact, and so understood by her; gJIi^henthe fo,
and consequently, as she then labored under no saving ther held proper-

ty (slaves) as the

flisability, and more than five years elapsed before the in- natural guardian

Btitotion of this suit, she must be barred in a court of afiej* S'l^'^chiid

cqnity, as she would certainly have been barred had she ^^^ ^^ 2?*'

elected to bring an action at law. the father thence-

And as to the infant complainants, who sue as the chil- s^dered aa^oM-

dien of the other donee of her grandfather, it seems to us ^yearJ^wn/Lw

that the absolute dismission of the bill cannot be deemed «i^e' an actioa

at law or by anal-
erroneous. ogy, a suit ia

If their grandfather, Patterson, did not hold the slaves ^^''^^^^'y*

adversely to the right of their mother, at the time of her S'uie'^oswMi^

marriage, her title passed by operation of law, absolutely of the father, as

to her husband; and on this hypothesis, the right to sue dianand trua^e

was in the father alone, and the children could not main- oi her mafri^e

tain a suit in their own right, he being still alive. And 7®'H* a^soiute-

,.,.,, , . , ^ ly m the hus*

we are strongly inclined to the conclusion that Patterson band, and on the
should not, from the facts now exhibited, be deemed to husband^ alone
bave been, in fact or in law, possessed of the slaves ^^ *"*•
otherwise than as father and trustee of his two infant chil-
dren, until long after the marriage of Mrs. Wilcox; an
ouster in such a case should not be readily presumed, and

78 BEN. MONROE'S REPORTS.

FiwDLw 4 WIFE there is no evidence of such infidelity as early as her

M marriage.

EcuTORAND DE- But 6X6X1 1^ Paticr SOU s possession could be deemed

— l^f^^f: adverse to the right of Mrs. Wilcox, at the time of her

marriage, still we would be of the opinion that her chil-
dren could not maintain this suit; that she herself would
have been barred had she yet survived, and that it was
not erroneous to dismiss the bill absolutely, as it would
certainly have been had there been no other objection to
maintaining it than the fact that the personal representa-
tives of Mrs. Wilcox ought to have been a party.
Suit for slaves, Assuming that the wife's title had never vested in her
thi'^w^flfi^'n^'her husband, the suit for enforcing it ought to have been
marriage in in- brouffht vvithin five vcars after she became 21 years of
brought within age, because Patterson's possession being, as it must
amvaT^orfuU have been to authorize the assumption of such a continu-

dfcd before the ®^ ^^^^^ ^^ ^^^* adverse to her claim, a cause of suit
expiration of that had accrued to her before her marriage, and the disability
of her children of coverture could riot be lapped to that of infancy, so as
on"h'er^coverime ^^ prolong, beyond the period of her minority, the statu-
te save Uiercme- tory saving against the legal effect of lapse of time:

Floyd's heirs vs Johnson et ah 2 LUL Rep, 114. And
consequently, as she had attained majority more than
five years before the commencement of this suit, it could
not have been maintained even by her personal represen-
The possession tative, nor by her husband and herself had she still sur-
ofa trustee, after vjved; for after a renunciation of a trust and a hostile

a renunciation 01 ^

a trust, is ad verse holding in fact by a trustee, and especially in a case of

from the time of .,.•,,.. ^ «, •«. ^i

such renuncia- implied trust, time may operate as effectually as if there
chancci?or%hen ^ad been no trust; and consequently, as a court of law
the jurisdiction and a court of equity had concurrent jurisdiction, the bill

18 concurrent, ■* ^ •' ■

wiUappiy the bar in chanceiy should be barred by the same facts which '
wouiTdo. ° ^"^ would have operated as a bar to an action at law for the

same slaves.

We are, therefore, of the opinion that the right sought
by the infants in this case is lost by lapse of time.

Consequently, we feel constrained to affirm the decree
dismissing the bill absolutely.

Monroe and Owsley for plainlifTs ; Harlan for defend-
ants.

FALL TERai 1841. 79

Reed's Will. Win. cask.

fBbm 79

Appeal from the Garrard County Court. Case 37. JoJ m

Will, Mental incapacity. Codicil, ^^ *^

Ctiir Justice Bobektsost delivered the Opinion of the Court. October 14.

The County Court of Garrard having rejected a docu-
ment, offered there for probate, as the last will of Alex-
ander Reed St. deceased, the case has been re-tried in this
Court, and it is now adjudged that the testimony adduced
on the trial here, is sufficient to establish the controvert-
ed paper as the valid last will of the said decedent.

The only litigated question is, that of testamentary
capacity; and on this point, we have, on the negative
side, the opinions of the two subscribing witnesses and of
one other witness, perhaps two others, unsupported, as
we think, by the only reasons assigned for them or by
any established facts — whilst the affirmative is sustained
by the more explicit and unqualified opinions of many
witnesses, sustained by a luultitude of minute and per-
suasive facts, and corroborated also by the circumstances
proved by the opposing witnesses, and by the almost con-
dusive fact that the testamentary paper was written as
directed by the testator himself.

The only negative facts are the testator's age and phys-
ical infirmities, his attachment to and^emancipation of
his slaves, and his pretermission of two of his children,
a married daughter and an only son, to whom, as well as
others, he had previously made advancements.

But though the testator was rather over 80 years of age. Though a tcsta-
aodwas so afflicted with a palsy of the hands and neck years of a^e, and
as to be unable to write or even to feed himself, yet the ergiesgreaUyim-
&cts proved by all the witnesses show indisputably, that Ee^raUonannail
he was, at the date of the publication, in 1834, and for his acts and con-
several years afterwards, rational in all his acts and con- euperintendwith
versations, manifesting as much mind and memory as mudcnrca?e,"aU
men of his age generally possess, and that he superin- ^*« . J^^sinwa,
tended and directed, with intelligence and provident care, mestic afiaiiB^
all his business consisting of domestic affairs, litigation, uacu^foV hhe^

80 BEN. MONROE'S REPORTS.

Reed's wili« ^nd coiitracls of hire, and barter, and sale and purchase
' of land and slaves, and various other things,

sale and pmchwe I^ ^'so appears, Or may be inferred from facts well prov-
hc^hw ca^aclt' ®^ ^"^ "^^ controverted, that the liberation of his slaves
to make a yaiid at his own death, had been his settled purpose for many

years, and when there could be no question as to his ca-
pacity. Not one fact proved in this Court tend to show
that his will was procured, or controled, or modified, in
any respect, by improper influence of any kind, or from
any quarter. And the dictation of such a will, so ration-
ally conceived and intelligently arranged, aflfords intrin-
sic proof of a disposing mind. As the testator had an
unquestionable right, both moral and legal, to dispose, as
he thought fit, of the remnant ef his estate, retained by
himself after advancing his children, the fact that he did
not make an equal distribution among all his children, of
the inconsiderable portion remaining, after emancipating
his slaves, or the fact that, in distributing this small resid-
ual fund, he pretermitted two of his children, cannot,
per 5C, be entitled to the effect of either nullifying his
will or proving his incapacity to make it; nor should this
unexplained circumstance, when connected with all the
facts of the case, be permitted to operate essentially on
the question of will or no will; for we are not authorized
to presume that want of mind or memory was the cause
of the pretermission — such an interpretation of it being
clearly repelled by many facts abundantly established.

Then, deciding this case as we must, according to the
facts proved and our own deductions from them, our con-
clusion is that when he published his testament in 1834,
the testator had a disposing mind, and that the disposi-
tion thus made was the spontaneous offspring of that
mind, freely, deliberately, and independently exercised.
The offering for A codicil, dated in 1840, and providing for the trans-
which°fs\dmik po^'^^^^o'^ of the emancipated persons to Liberia, or the
ted to ^ ^cord sale of them in the event of their refusal to be thus trans-
a codicil thereto ported, has not been proved or offered for probate; and
saSftlme'UeS therefore, the only purpose of noticing it in this opinion,
rntercst*cJ ^from ^^ tosuggest that it may be hereafter proved and recorded as
thereafter offer- an appendage to the will, if in fact it was legally publish-

FALL TERM 1841. 81

ed, and the testator' was competent at the time of its pub- Elledor, 4«.
lication. Straughn.

It is, therefore, considered that the document publish- ing the codicil
ed in 1834, be recorded in this Court, as the last will of ^o'lp^oof like-

wise.

Alexander Reed Sr. deceased, and a copy thereof certifi-
ed to the Garrard County Court and there also recorded.
Bradley, Owsley ^ Goodloe for appellants ; Turner and
Harlan for appellees.

Elledge, &c. vs Straughn. Pet. & Sum.

Error to thb Estill Circuit. Case 39.

AssignmirU. Obligor and obligee.

JvD6B Habshaix deUvered the Opinion of the Court October 14.

This was an action by petition and summons, brought The case stated,
in the name of Straughn, on a note for $250, payable to
him. The defendants pleaded that by endorsement on
thenote Strau^n had, on the 9th of March, 1839, assign-
ed S164 25 thereof to Jesse Bamet, and that by a sirai]
lar endorsement he had, on the 16th of December, 1839,
assigned "the residue of the note, being $85 75," to E.
L. Shackleford, and makes profert of said endorsement.
A demurrer to this plea having*been sustained and a judg-
ment rendered for the plaintiff, the only question present-
ed for the decision of this Court is, whether the right of
action remained in Straughn, notwithstanding these as-
signments.

It is well settled that a partial assignment does not pass ^ ^^^^^^i j^sign-
the legal title or right of action, but that they remain in J^e^^ of Ls'Si*
the original payee, who, to the extent of the interest as- legal title or
signed, must be regaided as holding the title in trust for Ih?M3^i^i2!"bi^
the assignee; and although the payee might, notwith- Jhe'^^^^oTWnS
standing such partial assignment, pass the entire legal payee— the obii-
title to a third person, who would also hold in trust for ^d' Assignment
the first assignee, to the extent of his interest, this could J^^^'g su^ffidlJ!?
only be done by words indicating an intention to pass the ^X^^ SanT**^'
entire note, or the entire legal title to it. But the last as- right of action to

sigument in the present case not only does not indicate the wsignment
Vol. II. 11

82 BEN. MONROE'S REPORTS.

Ellidot, Ac. 5qcJi an intention, but clearly excludes it, since it pro-

STBAuoBAir. fesses to assign the balance only of the note, amounting

purport to be of to a particular sum which is named. If by the first as-

JfoVaT^^'hi'o^ signment the legal title in a part of the note or the debt

action passes by jj^ passed to the assignee, then by the assignment of the

balance or residue, the legal title to the remaining part
might have passed to the second assignee; and the payee
might thus have been divested of the entire right. But
according to the established principle already stated, the
title or legal right in the note must pass entire by the as.
signment, or remain in the assignor. And if the entire
title did not and could not pass to the first assignee, be-
cause the assignment professed to transfer to him only a
partof the note, or of the sum demandable upon it, we can-
not perceive why or how the entire title should be suppos-
ed to pass to a second assignee by an assignment equally
limited and partial. Neither assignee can take or claim
by the assignment, more than the assignment itself pur-
ports to transfer to him; neither, therefore, becomes en-
titled to the entire note or the entire legal title or right
therein, and neither can maintain, in his own name, an
action upon it. Nor can it be conceived that by the sub-
sequent assignment of the balance remaining after a pre-
vious partial transfer, the legal title which did not pass to
any extent by the first assignment; became vested in the
first and second assignees jointly. It seems to us, there-
fore, that the legal title in the note and the right of action
remained in the assignor, for the benefit of the two as-
signees, notwithstanding (he assignments.
The as«j«unent The case of Bledsoe vs Fisher, 2 Bibb, 471, has been
**^^to*^f d°t r^f*^^'^®^ ^^ ^^ support of an opposite conclusion ; but there
being endorsed is this obvious distinction between that case and this:
fenT^Uie ^SfS there a credit having been entered on the note, the assign-
rifhttosae. ^^^^^ ^f i.^jj^ balance** of the note evidently excluded

only the sum which had been paid and credited, and in-
cluded all that remained due and demandable on the note;
it was substantially an assignment of the entire demand,
and of the entire note by which it was evidenced; and it
would have been a technical construction, contrary to the
manifest intention of the parties, and not required by any
interest of either of them to consider it as a partial as-

FALL TERM 1841.

signmenL Here the assignment of the balance of the
note, even if the sum constituting that balance had not
been specified, excludes a part of that which was de-
mandable and includes a part only of that which was de-
mandable on the note. It is, therefore, essentially a par-
tial assignment, and to construe it into any thing more
woold do violence to its terms.

Wherefore, the judgment is affirmed.

GoodUoe for plaintiffs ; Turner for defendant.

TiPTOJI
VB

Grubbs.

Tipton t;^ Grubbs.

Appeal from the Montgomery Circuit.
Sales of Land, Executions,

Cbuf Justice Bobbrtson delivered the Opinion of the Court

This is an action of ejectment for land conveyed by a
sheriff to the lessor, as purchaser thereof under aji.fa.
which had been issued against the defendant who refused
to surrender the possession, and still resists an eviction,
on the ground, as urged by his counsel, that more land
was sold than was necessary for satisfying the amount ac-
tually due to the judgment creditor, and that, therefoie,
the sale was illegal and void.

We concur with the Circuit Court in overruUng that
defence and rendering a judgment of eviction.

The)I./a. under which the sale was made, was issued
on a replevin bond, operating as a judgment; and even
if, as assumed and may be admitted, the amount of the
bond exceeded the aggregate sum which was due and col-
lectable on the original judgment, nevertheless, as the
execution was issued for no more than the amount speci-
fied in the bond, the official sale of as much land as was
necessary for satisfying the execution, was not even illegal
or irregular much less void. It was the officer's duty to
make the amount of the execution, unless the bond and
execution had been quashed or corrected.

Nor can we decide that the land was sold for more
than the sum due and collectable on the face of the exe-

Ejectment.
Case 40.

October 15.
The case itsted.

A sale of land «
under execution
orrepleTln bond,
is not illegal or
void, though the
execution may
be for a greater
sum than was re»
alljr due on ^e
judgment. The
sheriff's duty
was to make a
sale sufficient to
sgtisfy the exe-
cution unless the
bond and execu-
tion had been
quashed.

BEN. MONROE'S REPORTS.

MOHRXS
98

EvANB et aL

cotion* The counsel on each side has made an elaboiate
exhibition of arithmetical calculation, resulting in a dif-
ference of less than two dollars — one of them showing
that the amount made by the sale was less than that
which was collectable by about forty cents, and the other
exhibiting an excess of about one dollar eighty cents.
The process is tedious and minute^ and a fractional error
in the result may not be easily avoided. Our revision
rather confirms the calculation made by the appellee's
counsel. But having no great confidence in the certainty
of our arithmetic, we are not sure we are right to a cent;
we are sure, however, that we cannot decide that the
sheriff sold a foot more of the land than the execution
required. Waiving, therefore, every other consideration
which might be suggested on this point, we are of the
opinion that the sheriff's sale and conveyance do not ap-
pear to have been void.

If, as suggested in argument, there was any injurious
surprise or fraud in the sale, not proved or relied on in
the trial of this action, a court of equity might afford the
proper relief.

Judgment afSrmed.

Peters for plaintiff; Apperson for defendant.

Motion*
Case 41.

Oett^ter lA.
The ease stated.

Morris vs Evans et ah

Eahob to the Estill Circuit.
Principal and surety. SubstUtUion.

CStBt JosnoB EoBBBTsoN delivered the Opinion of the Court

The only question we shall notice in this case is,
whether, after one of several principal obligors in a judg-
ment shall, without coercion, have advanced the amount
thereof to the creditor, upon an express agreement be-
tween them that the advance shall not be considered a
payment in satisfaction of the judgment, but that the par.
ty who made it shall have a right to issue execution there-
on against himself and co-defendants, and control the
same, he is entitled to such an equitable subrogation as

FALL TERM 1841. 80 ^^

to aalhorize a court of law, upon proof of these facts, to Morris
overrule a motion by the judgment creditor, to quash an Evans et ai.
execution issued {without his consent at the time of emancL
titm) at the instance of the party claiming substitution?

Had the party mailing the advance been shown to be a , surety ad-
asnrety merely, although a simple payment by him with- ^^nt of ?judg-
ont proof of any special agreement, would necessarily menito the plain-
operate as an extinguishment, yet he would have had a laie for substuu-
right, upon making a voluntary advance of the money, to conuof of' the
stipulate expressly with the creditor for substitution, and ^e"cl!aSn°^ gainst
then the payment should have been considered as merely his principal and
the consideration of that equitable transfer, and not as win protect him
a satisfaction of the judgment, which would frustrate the ^®^®"*-
object of the parties. And in such a case, a Court of
law would not permit the judgment creditor to control an
execution on the judgment, issued at the instance and for
the benefit of the surety. This is according to a princi-
ple of the civil law and of universal equity, which has
been more than once recognized by this Court.

Does not the reason of the same equitable doctrine a joint obligor
equally apply, to some extent, to a party who is bound ^«S,^cSSeiSE)uni
as a co-principal? We cannot perceive why it does not. ?? a judgment ts

T# 1 1 1 11 « I . 1 /• . 1 hmiselfandano-

II be be legally bound m the first mstance, to pay the ther, and cou-
whole debt, so is the surety. The only difference be- credito^Vor the
tween them is that a payment by one entitles him to res- ecSiion°l^^^m
titotion of the whole, and a payment by the other entitles he therein pro-
him to a reimbursement of only a part of what he paid. oHaw. untif he
This only difference should not, in our judgment, essen- propSor*^^^
tially affect the question we are considering in this case, ^^p?***** ^ *° ^
Its only effect should be to prevent the substituted party, itor.
if he be one of several principal obligors, from enforc-
ing the execution against his associates for his own ali-
quot portion of the joint debt. To that extent he is, in
equity, as well as in technical law, principal as between
himself and his co-obligors ; but beyond it he is, as be-
tween themselves in equity, only a surety.

It, therefore, seems to us that the Circuit Judge did not
err in this case, in overruling the judgment creditor's mo-
tion to quash the execution, and consequently, the judg-
ment must be affirmed.

Turner for plaintiff; Hanson for defendants.

BEN. xMONROE'S REPORTS.

Chancery
Case 42.

October 16.
The case stated.

Goodloe vs Rodes, &c.

Error to the Madison Circuit.
Trustees and trusts. Executors, Devisees,

Chief Justice Robbbtson deliTered the Opinion of the Court.

Green Clay, who died about the 1st of November,
1828, having, some years antecedently to his death, ver-
bally given to one of his daughters and her husband,
William Rodes, the temporary possession and use of a
tract of land containing about 400 acres, afterwards, by
his will, since legally established, devised the tract to
Cassius M, Clay, in trust for his said daughter and her
infant children.

In December, 1828, after the probate of the will, the
said Rodes, who was an acting executor thereof, finding
that one Estill held a covenant on the testator, dated in
1811, for a part of the land thus devised to the use of his
wife and children, bought that equitable incumbrance for
$800, and obtained a written transfer thereof to himself,
and afterwards, in February of the year 1832, in settling
his executorial accounts, Rodes obtained a credit for the
said sum of $800, as so much money advanced out of
the assets for quieting the title of the devisees, and at the
same time, or previously, endorsed on EstilVs transfer to
himself, the fact that the payment had been made by him
as executor, and for securing a full effectuation of his
testator's obligations and wishes. In May, 1837, he ex-
ecuted his individual note to Archibald W. Goodloe for
$3926, and in September, 1839, confessed a judgment
for that amount, with intermediate interest. To enforce
that judgment, after a return of nulla bona, Goodloe filed
a bill in chancerj^ for subjecting the said tract of land or
some portion thereof, alleging that Rodes had acquired
from Estill and still held an equitable interest therein, so
far at least as his bona fide creditors may be concerned.

That bill having been finally dismissed on the hearings
Goodloe has brought the case here for revision.

It seems to this Court that the decree is right.

FALL TERM 1841. 87

1. As executor, Rodes had a right to reVnove the incum- goodlok,
braoce created by the testator himself, on the title after- Rodes, &c.
wards devised, without qualification, to Mrs, Rodes and An executor may
her children, in a manner authorizing the presumption fhe^fuuL o?^the
thit he intended to secure to them the entire tract. Stand- i5^1fi°^ ?° !f'

move m Cum-
ing in that fiducial relation alone, he ought not to have brancea created

bought that incumbrance for his own benefit; and had he in his° iffetime'
done so and attempted to consummate such an equity, cai/y"^Vev1sed"
by forcinfi: from the devisee in trust for his wife and chil- but may not pur-

' o chase such in-

dien the legal title to his own use, we apprehend that a cumbrance for
Court of equity would have hesitated to help him, other- anV^ihough in
wise than for the effectuation of the testator's provident exenitor^make
purposes. And if he used the testator's funds, there ii\e purchase
could have been no difiiculty in holding him as a trustee fund8,yetaCourt

for the devisees. ciaTil'a''l"u«:

2. But the more confidential and responsible relations jnd for the bene-

I r fit of the deYi-

of husband and father, and co-occupant and usufructuary see.
of the devised land, imposed on him even stronger obli-
gations to do nothing concerning the land for any other
purpose than that of benefitting his testator's beneficia-
ries, placed by law and providence under his control and
guardian care. And had he, whilst thus occupying the
land, acquired for his own exclusive benefit, any adverse
tide to the land, equity would stamp it "^ trust,"

From these considerations, connected with his entire
conduct we are inclined to the conclusion that Rodes
bought Estiirs equity, in fact, for the purpose of effectua-
ting the testator's objects, and with the testator's funds,
even though it may not be improbable that he had no
such funds when he advanced the $800, and may have
borrowed those identical dollars in his individual name.

But whatever may have been his intention when he ob- An executor buy.
taiaed to himself Estill's transfer, he surely had a right, i'JIn'^J"' cre*i?d
and was under a morat obligation at least, to hold or sur. ^y j^o testator,
render it to the uses of the will, with a lien only upon it >vards8pt;cificai-
for the sum he had paid for it. And it is very clear, Ijittf'^hfs^' iwn
therefore, that his subsequent recognition of that obliga- Sards' refmb^*^"
tion, by endorsing on the transfer the trust for which it ing himself out
was obtained, and reimbursing the $800 by obtainhig a the ^"tesStor,
credit therefor as executor, should not be subjected to the Yn^eU, ^ Sot
imputation of constructive fraud on his creditors, had he vtoj^riy charga-

88 BEN. MONROE'S REPORTS.

GooDLOB then been ever ^ deeply involved in debt. But there is

Bodes, &c. no proof of his indebtedness, to any great extent, in

bie afterwards, February, 1832, and it does not appear that Goodloe was

Bubsequenf cie^ ^^en One of hls Creditors, or that any other person, who

ditors, on con- jjj^y have been his creditor then, remains so yet. But

"veying such pur- ^ • ^ j^ • *»*»

chased incum- had he been neither executor nor husband, nor father,
viseesofthetefl- nor tenant, and had he, th US isolated, obtained Estill's
^^'^' equity for himself alone, and with his own money, would

he not have had a perfect right to sell that equity for the
amount he gave for it, without incurring the denunciation
of fraud? And w^ouldthe simple fact that he was then in-
debted to others be sufficient proof of fraud to justify a
cancelment of that sale even at the instance of his ante-
cedent creditors? Certainly not.

Considering the case as free from any implied trust,
and in every respect in the light most favorable to Good-
loe, it does seem to us that the endorsement in 1832,
should be deemed sufficient evidence of a transfer of Es-
till's equity to the beneficial devisees, and for the consid-
eration of $800 refunded to Rodes; and even in this as-
pect of the case, there is no ground for presuming a fraud
on creditors, and especially on Goodloe, who does not
appear to have become his creditor until more than five
years after the date of that transaction.

In no aspect of the case then, can we consider Estill's
equity as being in Rodes, for his own exclusive use or for
the benefit of Goodloe as his creditor; and under no cir-
cumstances that could be presumed to* have occurred,
should an equitable tribunal interpose in his behalf, to
divest the devisees of an equity acquired for a valuable
consideration, and fortified by so many tiusts.
The decree is, therefore, affirmed.
Owsley (^ Goodloe, for plaintiff; Robinson <^ Johnson
for defendants.

FALL TERM 1841. 89

Philips, Reynolds, & Co. vs Barbaroux. Chanckry.

Error to the Louisville Chancery Court. Case 43.

Consignor and consignee. Costs.

CnEF Justice Robertson delivered the Opinion of the Court. October 16.

Joseph Barbaroux, being indebted to Philips, Rey- The case staud.
nolds ^ Co. gave them, as collateral security, a mortgage
on two slaves and assigned to them a promissory note
for $300 and an order drawn in his favor on **Vork Bro-
thers" ai New Orleans by W. G. Bakewell, for ''the pro-
ceeds" of some bagging and rope consigned to them on a
shipment from Louisville a few days previously, after re-
taining for the consignor $2250, and deducting charges.
By the terms of the mortgage, six months were allowed
for paying the debt, and the slaves were to be sold for
whatever balance should remain unpaid at the expiration
of that period.

The mortgagees attempting to coerce their debt by legal
means before the expiration of the time given for pay-
ment by the mortgage, Barbaroux filed a bill fot enjoin-
ing them. Not answering until the prescribed period of
indulgence had expired, they made their answer a cross
bill, and prayed for a foreclosure and sale, for a balance
alleged to be due after deducting $300 which they had
collected on the assigned note, and $529 19 cents alleg-
ed to have been the amount of the proceeds of the sales
of the bagging and rope, after making the prescribed de-
ductions and allowing a small loss for exchange.

In his answer to the cross bill, Barbaroux insisted that,
by the consignment to "York Brothers,'' they were di-
rected to sell "on arrival" — that, by neglecting to do so,
ihey had subjected themselves to an action for the differ-
ence between the amount for which the consigned proper-
ty might have been sold **on its arrival,*' and the reduc-
ed sum for which it was long afterwards sold, at various
times, in small parcels — that, as assignees, Philips, Rey-
nolds ^ Co, ought to have forced a sale sooner, or pro-
ceeded against the consignees for damages — and finally,
Vol. II. 12

90 BEN. MONROE'S REPORTS.

P«""» ^^- that they had been guilty of culpable and injurious negli-

V8 gence in failing to collect more on account of proceeds

— ^'^^^^^- than they had, or in omitting to return the order when

they found that there was not a prompt sale.

Upon the cross bill and answer thereto, the Chancellor

decided that the mortgagees were justly chargeable with

the amount for which, as he assumed, the consigned goods

might have been sold "on arrival," after deducting the

qharges and the sum of $2250; and by this process and

by allowing also some small credits for alleged mistake

or usury, the Chancellor extinguished the whole mortgage

debt, and rendered a decree in favor of Barbaroux for

costs.

That decree we cannot approve.

The assigned order on the consignees for a portion of

Jrder^lftvlS^ by ^^6 proceeds of sale, gave to the assignees no other au-

consignor on thority than to present the order and receive the amount

consignee, ot ,

bagging, ic. for to which they were entitled, after sale had been made,
eeeds'of the sale The consignment itself was not transferred to them, nor
lu Aorked" "^to ^^^ ^^^^ ^^^ control over it or over the consignees. Be-

controi the sale sides, there is no proof of the assumed fact that the Con-
or to sue for not , ,

selling, but only signees were, by the terms of the consignment, instruct-
L^wTUceiVe «d to sell forthwith. The only evidence to that effect, is
the proceeds. ^ memorandum made by BakeweU on the order drawn by

him in favor of Barbaroux; and this is, surely, no more
than a declaration by the consignor, after the date of the
consignment and the shipment of the goods, which cannot
be admitted as proof of the fact against the consignees.
And there being no depositions, it certainly does not
appear that the consignees acted in bad faith, or could
have made a larger amount than they did. The fact that,
immediately after the reception of the bagging and rope,
they sold small portions thereof is, without explanation,
intrinsic evidence tending to the presumption that they
were unable then to sell more at the same price, rather
than to the conclusion adopted by the Chancellor that they
ought to have sold the whole consignment at the same
time and for the same price.

The record does not allow the imputation of negligence
or breach of duty; nor does it authorize the presumption
that the mortgagees collected or ought to have collected

FALL TERM 1841. 91

more than $556 95, The bill itself alleges that they pre- Boyce'i kx'x.
sented the order promptly, and had it accepted. They Wallxr.
had no authority to control the consignees or to sue them
for failing to sell. The consignor still retaining the prin-
cipal interest in the consignment, his assignees of a por-
tion only of the proceeds could not direct the sales with-
out his concurrence, nor sue for a breach of the consign-
ment.

But, as already suggested, it does not sufficiently ap- Costs arc proper-
pear that there was any breach of duty by the consignees, bchait of apaiir
nor that they sold or could have sold for a higher price caiwe to*8ue*^ at
than they accounted for — nor that Barbaroux has been iuV^up to^tS
injured, in any respect, by the conduct of his assignees filing of answer,

J , t though such par-

ol the order. ty is ultimauly

This main point being the only one noticed in the ar- ihe?apsVo?tiine
goment of the cause in this Court, we will consider no ^^^ Md°^Se

other. happening of

T , >• 1 , , other facts not

It, therefore, seems to us that the mortgagees are charge- then existiiig.
able with only what they actually received of the pro-
ceeds of the bagging and rope, without any discount for
alleged loss on exchange ; and that, as Barharovx had
good cause for filing his bill, he is entitled to a decree for
all costs accruing before the filing of the answer and cross
bill, but is liable to the costs on the cross bill.

Decree reversed and cause remanded.

Duncan for plaintiffs; Guthrie for defendant.

Boyce's Executrix vs Waller. Chawcert.

Error to the Fayette Circuit. Cast 44

Fraud, Fraudulent conveyance. Purchaser.

CniF JcsTiCE Robertson deliveied the Opinion of Uie CoaiL ^ October 18.

This case was once before in this Court, and the opin- The case suied,
ion then rendered will be found in 9 Dana, 478.

After the return of the case to the Court below Waller
and the executrix of Daniel Boyce submitted to the de-
cision of the Circuit Judge, certain admitted facts, and
agreed that, without any supplemental pleading or further

92 BEN. MONROE'S REPORTS.

Boyce's ex'x. preparation, such a decree might be made between 4o«
Waller. parties as those facts and the formei ojpinionof thisCowt
should authorize.

The effect of Boyce's purchase under the execation
against RrKinney was left, by the agreement, to be de-
cided on the facts appearing in the record, when the cise
was first decided by this Court; and this invoKes&e
first and principal question for decision on the ipew
case. The executrix contends that MKinruys eD\iR
interest was sold under execution, and that, therefoic,»
this Court had since determined that his previous
veyance, in trust for himself for life, remainder to
appointees or to his wife's children in the event of aBon.
appointment, was void as to his creditors, the absolute
title had passed to her testator, in virtue of his purcbas«
under the execution of one of those creditors. But ffol*
ler insists that Boyce bought only such vendible interest
as M Kinney was supposed to possess under his said
conveyance in trust, the validity of which had notbeea
assailed by the said execution creditor — and therefore, he
argues, that this deed being void as to himself, ^yce ac-
quired no interest against him as one of M'Kinney pre-
cedent creditors.

It was agreed that Boyce and his executrix had enjoyed,
ever since his purchase, the profits of the slaves bought
by him under the execution against M Kinney, and that
if, in any form of suit, either at law or in chancery, Wd-
ler could recover those profits or any portion thereof, a
decree might be rendered accordingly, on the agreed
facts.

The Circuit Judge seems to have decided that, as
against Waller as a judgment creditor of M Kinney,
Boyce had acquired no title, and therefore, decreed the
subjection of the slaves to sale for satisfying his judg-
ment, and also decreed in his favor, against the execu-
trix, $1500 as the conventional balance of the amount of
the profits after deducting the sum which had been paid
by Boyce to M Kinney's execution creditor, for whose
benefit the slaves &c. had been sold.

The executrix now complains that this last decree on
the agreed facts is altogether erroneous.

FALL TERM 1841. 93

It does not appear, and should not be presumed from Boyce'* kx'x.
the facts exhibited, that, at the time of Boyce*s purchase Wallsr.

or before, there had been any question as to the validity when a debtor
of tlie trust conveyance of 1827; and the sheriff's deed to J^t"/*^^ ^^^^H
Bcyce recites that he had bought M Kinney's interest in ^i^^. po^«' ^^

* . ... appointment, le-

the property designated in his said conveyance of 1827. serving a life es-

Moreover, Boyce, in his bill, suggested that he had bought be made of the

an equity supposed to exist in M Kinney under that deed, oi'^without^lm-

and to be vendible under the the execution; and iheori- peaching the

coQvevance

ginal bill claims an enforcement of th^ trusts created by nothing paasei
that deed. From these circumstances we cannot resist ufe'^tstaie!'^ ^^
the conclusion that, in the sale to Boyce, the validity of
the deed of 1827 was recognized, and that M* Kinney's
trust estate for life therein was alone sold under the exe-
cution; and consequently, M Kinney being now dead,
jBoyce's interest as purchaser under the execution has
ceased, and the property so bought by him is subject to
if^oUer's judgment, according to the former opinion of
this Court. There seems, therefore, to have been no er-
ror in decreeing the sale of that property for Waller's
benefit.

But it does seem to us that there is error in the decree
for profits.

Whenever, by M Kinney's death, Boyce's title as pur-
chaser under execution had expired, his continued reten-
tion and use of the purchased property may have sub-
jected him, as executor de son tort, for the profits actually
received by him. And, in this aspect of the agreed case
and to this extent, the decree in Waller's favor for pro-
fits admitted to have been received by Boyce may be
proper.

Bat Boyce either purchased the entire title which M*- The sale of a life
Kinney's creditors had a right to sell, on the hypothesis by a* debtori^
that the whole title was still in the debtor for the benefit (thoiigh*''*''^ch
of those creditors, or he purchased M' Kinney's trust es- conveyance may
tatefor life, purporting to have been reserved to him by creditors) is no*t
the conveyance of 1827, and which was certainly subject no'mo?e iVn^l
to sale under execution against him. ^*^® estate.

And if, as we presume, he bought only the latter inter-
est, then admitting that, so far as M' Kinney's creditors
were concerned, a greater interest was and is still subject

94 BEN. MONROE'S REPORTS.

Boyce's ex'x. to sale, surely a sale of only a life estate was not void
Walleh. merely because a larger estate might have been sold, had
the execution creditor thought fit to attempt such a sale.
The fact that the conveyance of 1827 may have been void
as to M*Kinney's creditors, cannot affect the validity or
the value of Boyce's purchase — for he bought only a part
of that entire interest, the right to sell which resulted from
avoiding that conveyance. He did not purchase an inter-
est which would not have existed in M Kinney and been
subject to sale independently of the void deed of trust;
but he bought only that which would have been subject
to sale under execution against M'Kinney, had that deed
never been made.
A bona fide v^^' But morcover, as a bona fide purchaser, without notice
ty, "fraudulently of the invalidity of the deed of trust, Boyce might have
uuYd tf p/otecl '^^^^ entitled to protection against the creditors of MKin-
tion against a nqi^ evcn had the interest which he so boufi:ht been created

defrauded crcdi- • ,

tor, who can pur- by or existed only under the deed which any one of those
"fy^int^e hands Creditors may avoid; for it is settled that such a purchaser
^art ^01* M»^ al- °^ property, fraudulently conveyed to his vendor, is en-
lenees, without titled to protection against the defrauded creditor, who
with notice of can pursue the estate only in the hands of the fraudulent
the fraud. p^^^^y ^j. j^jg alienees, without valuable consideration or

with notice of the fraud.

We are, therefore, of the opinion that Boyce used the
slaves properly in his own exclusive right during the life of
M Kinney, who lived several years after the date of the sale
under execution in 1828; arid that, consequently, he was
not, as executor de son tort or otherwise, responsible to
Waller for the profits which accrued during M Kinney's
life.

And, therefore, as it appears probable and almost cer-
tain that the amount decreed against the executrix in this
case exceeds the aggregate of the profits accruing since
M'Kinney's death, the decree for $1600 must, on this
ground, be reversed, and the cause remanded for a further
decree in this branch of the case, according to the prin.
ciples of the foregoing opinion.

OtDsley andPindellfoi appellant; Robinson df- John-
son for appellee.

FALL TERM 184L 95

Downing's Heirs vs Collins et ah Ejectment.

Error to the Madison Circuit. Case 45.

Amendments, Conveyances, Publication,

Jfdge 9Iarshall delivered the Opinion of the Court. October 15.

In this action of ejectment, brought on the demise of The case stated.
Downing's heirs, after the plaintiff had made out his case
before the jury, the defendants read in evidence the re-
cord of a suit in chancery, brought in the same Court by
John Hill, under whom they claimed the land in contest,
which resulted in a decree against the plaintiff's lessors
for a conveyance of the same land to Hill, and in a con-
veyance thereof in pursuance of the decree, by a com-
missioner, and an approval and confirmation of the con-
veyance by the Court in 1827. The demise was laid in
1833, and the trial had in 1841, and a verdict and judg-
ment having been rendered for defendants, Downing's
heirs have brought up the case for the revision of this
Court.

The only question which we deem it necessary to de-
cide, relates to the admissibility and effect of the chan-
cery record, and the propriety of certain amendments
made therein, for the purpose of sustaining the decree
and conveyance; and as it is manifest that if the proceed-
ings in that suit were to any extent regular, so as that the
decree and conveyance therein were not void, they pre-
senU to that extent, a complete bar to the plaintiff's re-
covery in this action, by showing that the title was not in
the lessors at the date of the demise, or afterwards; in
which case they were undoubtedly admissible as evi-
dence, and fatal in their effect; we shall proceed at once
to those questions which affect the regularity and validity
of the decree and conveyance.

And, 1st. A part of the heirs of Downing, who were a suit for a con-
defendants in the suit in chancery, having been served helnT^ TOmc*°of
with process, and some of them having answered admit- ^hom are served
ting the equity set up in the bill, the decree was certainly decree and con-

96 BEN. MONROE'S REPORTS.

OowHiNo's H*3; valid as to them, and the conveyance, so far as it was in

Collins ««a^ itself sufficient, was effectual to pass their title.
Tcyance against 2. But the greater number of the heirs of Downing
regular, passes having been non-residents, and the certificate of publica-
may'beuiegSial ^^0" against them, as it originally stood in the record,
as to others. having been insufficient in its form, on the day before the

trial of this ejectment, an order was made in the chan-
' eery suit, on motion of the complainants therein, and
which was opposed by the counsel of Dovrning's heirs,
whereby the person who had certified the publication was
permitted to amend his certificate in Court, by expressing
more fully the character in which he certified, and also by
stating the time at which the publication was commenc-
ed and during which it was continued ; and the question
is made whether the certificate, as thus amended, was
properly admitted in evidence against the objection of the
plaintiff. This question depends upon the power of the
Court to authorize the amendment, and upon the suffi-
ciency of the certificate as amended.
A certificate of The first of these questions is in effect decided in the
aSa^d^creS affirmative by the case of Jeffries' heirs \s CallisADana,
in chancery, a- 465 and on the authority of that case, we are of opinion

mended after a *

lapse of 4 years that the Court had power to authorize the amendment;
and? years^from and although the Certificate, as amended, merely states
the pubUcation. ^jjg^^ the Order was published in the paper named, "nine

weeks successively, commencing on the first of October,
1824," without slating the date of the last publication,
we are of opinion that it substantially shows such a pub-
lication as the law requires, and that even if the omission
pointed out, might render the decree, founded upon such
a certificate erroneous, it would not render it void: Jef-
fries'heirs vs Callis, supra. The amendment having been
legally made, relates back to the date of the certificate,
which in its present form, proves that there was sufficient
constructive service of process when the decree was ren-
• dered; and whether in ils original form it furnished suffi-
cient evidence of that fact to support the decree in this
collateral proceeding, need not be decided.

3. On reading the commissioners conveyance of the title
of Downing's heiis to Hill, it appeared that the same was
without a seal, and objection having been made on that

FALL TERM 1841. 97

ground to its admissibility and effect as evidence, an order Dowkiho'b b'bs
was thereupon made in the chancery suit, on the motion Collins tt ai
of the complainants therein, which was opposed by the
coQQsel of Downing's heirs, permitting the commis-
sioner who had executed the deed, to ai&x his seal to it
and re-ackhowledge it; whereupon it was again approved
and confirmed by the Court, and ordered to be recorded
and certified to the County Court, &c. Upon all which
being done, the deed was again read to the jury, together
with the order just stated ; and the effect of this proceed-
ing and of the conveyance before and after the amend-
ment, is the only remaining subject of consideration.

It has been argued that upon principle and in analogy a decree for a
to the practice and doctrine with regard to the transfer of S^r/aw'^ih/'ie'
tiileby fine, at common law, the decree of the Court of ffai title to land,

' . , wiihont deed of

chancery in favor of the complainant's right to have the conveyance un-
land and the title, might be deemed sufiicient to pass the ed'^uJe^SurL
title without the interi'ention of a commissioner, or any
instrament in the form of an ordinary conveyance, or at
least that the subsequent approval and confirmation by
the Court of the commissioner's act, being a declaration
of record, binding on the parties, that the title had been
conveyed in pursuance of the decree, should be deemed
sofficient if not conclusive evidence of that fact without
the production of the instrument of conveyance, and even
aithongh that instrument should, in fact, appear to be in-
sufficient in its mode of execution or otherwise, to pass
the title. But to whatever weight these considerations
might have been entitled, if the question were now a new
one, the uniform practice and opinion of the Courts and
the profession, have established the principle, from which
we are not at liberty, if we were disposed now to depart,
that the conveyance must be made by the act of the com-
missioner or by the party; and we feel bound to decide
that, without a seal the instrument of conveyance by the
commissioner, though approved by the Court, was inad-
missible and ineffectual as evidence of the transfer of
title. But the considerations which have been adverted
to, the fact that by the decree the equitable rights of the
parties requiring a conveyance of title from one to the
other, have been settled ; that the commissioner in carrying
Vol. II, 13

«8 BEN. MONROE'S REPORTS.

DowHiNs'iR'M that decree into effect, is but the ministerial ajrentof the
Collins et al Court, acting under its supervision and inspection, and

that his acts are to be returned into Court and there final-
ly consummated and approved, are still entitled to great
weight, not only in giving construction to his acts so as
to make them eflfectual for the purposes of the decree,
but also in determining how far they may be amendable
after they are done and approved. And it seems to us
that the omission to add a scrawl to his name as affixed
to the deed, which must be deemed to have been a mere
inadvertence on his part, and to have been unnoticed by
the Court in its approval of the instrument, may be re-
garded as a mere misprision, amendable at any time by
the leave and under the inspection of the Court; and if
this be not so, we should not doubt, that under its power
of effectuating the decree, the Court had a right, at any
time, on the appearance of the parties, as in this case,
to have a complete and effectual conveyance made by the
same or another commissioner.
LeMors in eksct- The amendment in this case, by the affixing of a seal
Se'^^'posscssTon ^^ scrawl to the commissioner's conveyance must, there-
for their own use fore, be deemed effectual to remove the objection to it,

uidbenefit, roust . •/••i«i i ti ii <«ii

have right of pos- and even if it did not relate back to the date of the deed,
trial!**'* ** ^® as we are inclined to think that as a mere amendment it

should do, but gave it operation only from the date of the
amendment, as the deed then showed that at the time of
the trial, the lessors of the plaintiff had no right to the
possession, and as it was expressly admitted that the suit
was prosecuted solely for the benefit of the lessors, and
not for the benefit of the actual plaintiff, who was a ficti-
tious lessee, we are of opinion that they were entitled, at
most, to nothing more than a judgment for costs, and this
having been offered to and refused by them, they have no
right to complain of the instruction thereupon given, that
the jury should find against them, nor of the verdict found
in conformity with that instruction.
Wherefore, the judgment is affirmed.
Bradley for plaintiffs ; Turner for defendants.

FALL TERM 1841

2m 90
05 461

Chancssy.
Case 46.

October 18.

King's Heirs vs Morris and Snell.

Error to the Bourbon Circuit.
E'wshand and wife. Devises, Trust and trustees.

JoDoi Marshall deliveied the Opinion of the Court.

The will of James Hutchison contains, among others, The cast ■taicd.
the following clause: "I give and bequeath to my daugh-
ter, Louisa King, the tract of land lying on Townsend,
that I purchased of Morris and Langs ton, by her paying
$1650 when she gets possession," &c. &c. The sum
thus required to be paid was but a small part of the value
of the land devised, and it was understood by the execu-
tor that Mrs. King would take the land. But before she
had paid the money or was let into the possession, she
intermarried with Morris, and the possession was given
up to them without payment. About a year afterwards
Monris, who had received by the marriage and in right of
his wife, during the coverture, seven slaves of the value of
$1800, $750 in money, and personalty to the value of
$128, paid to the executor the sum of $1650 charged to ^

his wife in the devise; and in a few weeks after this pay-
ment Mrs. Morris died, having had no child by this last
marriage, but leaving a daughter by her former marriage,
who inherited the land, and leaving her husband entitled,
as her administrator, to about $400, in addition to what
had been already received from her father's estate. A
judgment in ejectment having been afterwards obtained
on the demise of the heir of Mrs. Morris against MOrris
and his tenant Snell, this bill was filed, setting up a right
in Morris to be reimbursed out of the land, the sum which
he had paid, and claiming to retain the possession and to
enjoin the judgment until reimbursment should be made
out of the rents. •

The injunction was granted and on final hearing the Decree of the
Circuit Court, regarding the payment by Morris as if Cireuit Court
made by a tenant for life, in discharge of an incum-
brance on the estate, and apportioning the sum paid be-
tween the life estate and the inheritance, deducted from

100 • BEN. MONROE'S REPORTS.

Kiwft's HW1IS. the $1650, the portion estimated as falling upon the life
Mosbis&Snxlt. estate, and crediting the residue by the $400 to which

Morris was entitled as administrator of his wife, set off
the balance against an equal amount of the rent or annual
value of the land which remained in his possession from
the death of his wife to the rendition of the decree. To .
reverse this decree the heir of Mrs. Morris prosecutes a
writ of error, alleging that Morris was not entitled to
charge the land with the reimbursement of any part of
the sum paid by him; and Morris has assigned cross er-
rors complaining that he was not allowed to receive the
whole sum out of the rents, without deduction either on
account of his interest in the land as husband, or of the
assets in his hands as administrator of his wife.
A devise tea If Morris is entitled to reimbursement to any extent,
tract 'Sf* faU ^^ ^^ diflScult to avoid the conclusion that the decree is
i^Jment'^'oV^a sufficiently favorable to him. If the $1650 be regarded
Bum of money, as a personal debt of the wife dum sola, lemaininfir un-

ehe marries, the . , ..,, i j .1 i i . . . °

husband dis- pai<l till her death, her choses m action, uncollected at
cuXLce! on ^^' ^^ath, would of course be liable for its payment,
wffe"^ wiAo°/t ts! ^^^ ^^ ^^® husband could be regarded as becoming a
sue, the husband Creditor by paying the debt during the coverture, there
mTneratbnT et would be no propriety in allowing him to charge the real
iJ'iS^i^L^ia'dTr ^^^^^ ^" ^^^ ^^"ds of the heir with the entire amount,
Mherwise, for SO long as he had any assets in his own hands as admin-
paid. ™°°*'' "° istrator. Nor would there be any justice in allowing this,

although the debt be secured by lien on the real estate of
the wife. And if the land were placed under lien for
the payment of this debt, before or during the marriage,
and the husband, by paying the debt during coverture,
acquired the benefit of the lien to any extent, we do not
perceive on what principle he could claim to stand on a
better footing than an ordinary tenant for life, who, in
discharging an incumbrance on the estate is considered
as discharging, in part, a burthen upon his own interest,
• and as having, to that extent, no just claim to remunera-

tion. But we are of opinion that he was not entitled to
charge the land to any extent for bis reimbursement.

It is certainly not the necessary effect of the devise,
and as we think, it was not the intention of the testator
that this sum of $1650 should be raised out of the land

FALL TERM 1841. 101

ilself, as the devisee was not, under the literal terms of Kmo's beirs

the will, to have any use or profit of the land until the Morris &Sneli
money should be paid. It was not intended that this
fm should be raised out of the land at all events, and
into whose hands soever it might come; but if the devi-
see had declined taking the land, the devise would have
failed, both as to the land and the money, and the former
woald have lapsed into the estate to be divided among the
heirs or subjected to the payment of debts, as the exi-
gencies of the estate might require. The executor being
the person entitled to receive the money, might doubtless,
as he did, waive his right of requiring payment before or
on the delivery of possession. And if it be conceded
that, upon such delivery of possession without payment,
alien upon the land for the money, either arose or remain-
ed in force in behalf of the executor, it cannot be doubt-
ed that, by the election of the devisee to take the land
on the terms offered by the will, and by the delivery of
the possession without payment, a personal obligation to
pay devolved upon the devisee alone, if she was then un-
married, or upon her husband and herself if the election
were made after marriage, which obligation was, in either
event, enforcible by personal remedy against the husband
daring the coverture.

The sum required to be paid by the devisee, is in effect, a devige to a
so much charged for the land; and is the price at which tJ^'t of land on
the testator proposes that she shall have it, vesting in her fi'/cnTum ^n
the legal title upon her paying, or pherhaps on her agree- money, is in cf-
ingtopaythe price. By electing to take under the de- saieat that price,
▼ise, she elects to purchase the land at the proposed price. loU °devisee as-
If this election were effectually made before the marriage, the sum ^sti^^a-

purchased or agreed to purchase, as a feme sole, and ^«d becomes a

assach owed the price. If the election was not effectu- not assented* to

ally made before but during her marriage, then the hus- ^"relMd'isTen

band and wife, or the husband alone agreed to purchase J^^ented to, it

or becomes a pur-

the land for the wife. In either case any lien which the chase of the hos-

cxecotor may have had, was in the nature of the equity the^ husband^ a-

which the vendor has to subject the land sold and con- ifi^^inhc^''^^^^^^
veyed, to the payment of the purchase money; and the
question is, whether, considering the debt for the land as
having thus arisen either before or during the coverture,

102 BEN. MONROE'S REPORTSv

King's HEIRS a court of equity, under all the circumstances of the
Morris <kSNELT. case, will regard this lien as being extinguished by the

husband's voluntary payment, or will uphold it for his
benefit, to be enforced for his reimbursement on the
principle of subrogation, after the coverture is determin-
ed by the death of the wife? Was it the presumed in-
tention of the parties, that the husband having become
invested by the marriage with the property of his wife,
exceeding in value the price of the land, should acquire
such a claim upon the land, by appropriating a part of
this property to the payment of the price? or does equity
and justice require, that because by the early and unex-
pected death of the wife, the husband has been preven-
ted from deriving, in his own person, and in that of the
anticipated issue of the marriage, all the advantage from
the purchase and payment, which he expected to derive,
he should be permitted now to set up a claim to remu.
neration out of the land, which, at the time of paying
the money, was unthoughtof and unknown?
Where husband The executor States that he retained no lien upon giv-
whoin her^aihe° ^°S "P ^^^ possession of the land, and transferred none
had before mar- on receiving payment, meaning, as he explains himself,
tract of land, that nothing was said about any lien on either occasion —
paymentofasum which statement is perhaps of no importance, except as
?eM^tha? i^val corroborating the presumption otherwise arising, that as
ue, and husband the devisee, before her marriage, had personal property in
wifel* personal possession, and in the hands of the executor, more than
ih^%VopeVi/% sufficient to pay for the land, to all of which the hus-
money exceed- band became entitled by the marriage, the executor look-

ing the sum

charged, pays the *ed to that fund and not to the land for payment — and
ih^fand" it wfu that the husbaud having that fund actually in hand, re-
Ir ^wM^^in^ ^ad- girded the payment as virtually made out of it, and
vwicementtothe looked to the land for remuneration only in his anticicMi-

wne and for the ,. o ' r • /• j»«j

benefit of the in- ted enjoyment of it for a series of years, and m its de-
th"^a^'of^the scent, in part at least, to the issue of the marriage, or in
wife, husband jtg future sale by the concurrent act of himself and wife,

has no lien on ... .

the land for re- to meet the exigencies of their affairs. And in all this

muneration, tho* ., . ^l'i ir> • ± ±' j -j

the wife die with- there IS, as we think, a sufficient motive and considera-
before" h^usband ^^^" ^^^ ^^^ making the payment and relieving the land
is reimbursed of from the incumbrance, if there were any, not with a

the profits of the . , .11 1. i» 1 1 j ^

land. View to becoming thereby a creditor of the land or or

FALL TERM 1841. 103

his wife, but purely for the advancement of the wife and KrNo'a^HKrRs
for the benefit of the inheritance; and in the absence of Morris &Snkix
any and every circumstance, tending to create the pre-
sumption that he did in fact intend to continue the in-
cainbrance on the land, or in any manner to become the
creditor of his wife, we think the clear presumption, from
all the circumstances is. that he did not so intend; and
although, in the event that has occurred, the anticipated
benefit from his payment has been defeated. This, how^-
ever it may operate to give an aspect of hardship to the
case, does not aflfect the right which he acquired by the
payment; and his claim, now against the heir of his wife,
stands precisely upon the same ground as the claim of
his heir against the wife would stand, if, after having en-
joyed the estate for forty years, he had died without is-
sae of the marriage, leaving the wife surviving.

If for a debt of the wife, or of her land, dum sola, Husband and
husband and wife mortgage the wife's land, or if they Jhe^anroW
mortgage her land for money borrowed during the cov- J^^f® ^^^, money

° o ^ 1,1 borrowed during

erture to pay onf such a debt, and the husband at the coverture, lo pay

same time execute a covenant for payment of the money, wife* dum sola,

these circumstances show suflSciently that the husband Jj°^ same*"tinie

does not intend to make the debt his own separate debt, execute his bond

, , - . J , . 1 1 /. , y. ">r payment of

bat that he mtends to keep it up as a debt of the /erne the mortgage mo-

and as a charge upon her land. In such a case a court Sfain ? Charge

of equity would properly regard the husband's covenant ^^^ wUe^^and

as collateral security, and himself as a mere surety; and husband only a

if it had the opportunity would doubtless, in the first in- ty. Andin such

stance, enforce payment out of the land of the wife; or be'cilrc^edTrom

if payment should have been coerced at law against the ite husband, he

Lii I. Ill I'll* ^^"1 "e reim-

ousband on his covenant, he would be relieved by the bursedoutofthe
subjection of the land to his reimbursement ; and this is *° ^*
the strongest case to which we have been referred, or
which we have found in the treatises or decisions relating
to the reciprocal rights of husband and wife, upon pay-
ment of the wife's mortgage debt by the husband. But
the analogy of this case to the one now before us, fails
in the decisive fact that here there is no manifestation of
an intention to keep up the debt as a charge against the
wife or her land, but a suflicient motive for a contrary in-
tention, and a sufficient presumption of its existence.

104 BEN. MONROE'S REPORTS.

Kino's iikxhs Even ill the case of a tenant for life, without interest
Morris a Snell in the inheritance, discharging an incumbrance upon the
If tenant for estate, if it sufficiently appear that he pays off the in-
incnmbranceup- cumbrance for the benefit of the inheritance, he will not
the^enefifofthe be deemed a creditor: 1 Cruises Digest (side page)
wmLotbedcem^- ^^^' ^ Powell OTi Mortgages, 316, in notis — and much
ed a creditor of less will the husband, under the circumstances of this

those in remain- i_i j j** i_ v**,*

der. case, be deemed a creditor when such intention appears.

But there is still another ground w^hich we regard as
not be pfesum* decisive against the claim of Morris, which is, that the
leVfor^the hus- ^^^^ cannot be presumed to be a trustee for her husband,
band. q^i^ jf j^g purchase an estate in her name, it shall be pre-

sumed, in the first instance, to be an advancement and
provision for hei: 1 Cruisers Digest, (side page) A79;
and so if she, while sole, purchase an estate in her own
name, taking the title, and he pay the price after mar.
riage, it must, on the same principle, be regarded as an
advancement and provision for her. We are inclined to
think, however, that there was in this case no effectual
election before marriage, to take the land, which would
have bound the wife dum sola, or could have been en-
forced against her, and that the election and purchase
having been made after the marriage, was a purchase by
the husband in the name of the wife, and therefore com-
ing directly within the rule laid down by Cruise, must
be deemed an advancement for her benefit, for which no
charge arises against her or her estate; and even if she
made an effectual election before marriage, and was in-
debted dum sola, for the price, it was the duty of the
husband to pay it, and especially as he had her property,
of greater value than the debt, and he should be presum-
ed to have paid it as husband, and for her benefit^ and no
equity arises in his favor for remuneration.

On all these grounds,, we think Morris had no equity
to be reimbursed from the larid, and that his bill should
have been dismissed.

Wherefore, the decree is reversed on the writ of error
of the heir, and the cause is remanded with directions to
dismiss the bill.

Owsley for plaintiffs; Morchead S^'^ Rccd for defendants.

FALL TERM 1841. 105

LaQgdon et al. vs Woolfolk et al Chawcehy.

Error to thk Christian Circuit. Case 47.

Purchaser, Trusts and trustee. Parol proof.

Chief JvsnCB Bobertsom delivered the Opinion of ihe Ck)UTt. October 19.

BgLLocBL's covenant to convey the legal title to Wool- in the absence
folk, cannot be construed on its face as reserving, by im- Son^of proo?of
plication or otherwise, the option to the vendor (o treat fraud, paroiproof

, ^1 11- , . . , ^ cannot be ad^*

the contract of sale as unobhgatoiy on him, in the event mitted for the
of a noH-payment by Woolfolk, of the first instalment of fi^tfng a specific
the consideration, on the ultimate day prescribed for pay- contract'to a)n*
ing it. Nor, in the absence of either proof or allegation ^ey land
of fiaud or mistake in the execution of the written me-
morial of the executory contract of sale, can the oral
testimony be admitted as sufficient to change or qualify
the constructive eflfect of that document, even for the
purpose of resisting a specific execution.

Had Bullock, therefore, not since sold and conveyed
the same land to Langdon and Hatch, the simple fact that
Woolfolk failed to make the first payment punctually,
would not be suDScient to prevent a decree for a specific
execution, especially as Woolfolk appears to have acted
in good faith and reasonable vigilance, and there is no
ground for presuming any other prejudice to Bullock
than such as results to every vendor from an accidental
delay in payment by his vendee.

Then, as there can be no doubt that Langdon and a purchaser
Hatch purchased with full notice of the terms and legal fun*' knowledge
effect of the previous written contract between Bullock °^ t previous

^ purchase by anr

and Woolfolk, those subsequent purchasers should be other, holds the
considered as holding the legal title in trust for Wool- trust for\he firS

rv.lL purchaser, and

**'*^- win be required

And even if Bullock miffht have been entitled, by his J'y the Chancei-

° lor to surrendex

contract with Woolfolk, to treat it as a nullity,- after the it,

day fixed for the first payment, or if, whatever may have

been the character of his equitable obligations under that

contract, it may be admitted, that he thought he had a

right so to treat it, and therefore would probably have
Vol. IL 14

106 BEN. MONROE'S REPORTS.

Lanooon et ai. jqIj a^j conveyed afterwards to a stranger without no-
WooLPOLK ei at. tice, stiil, being as he was, induced by false and fraudu-

lent representations, to sell and convey to Langdon and
Hatch, they should not now be permitted to urge that
they should hold just as they might have been entitled
to hold had they been guilty of no such misrepresenta-
tions. Because, were there no other reason, it is suffi-
cient to remark, that we cannot know, and are not dis*
posed to presume, that Bullock would have sold the
land to them when he did, had not Langdon made to
him injurious misrepresentations as to the conduct, char-
acter and condition of Wool folk.

We are perfectly satisfied that there is no proof of
champerty in Woolfolk's contract with Bullock.

And we are therefore of the opinion, that Langdon
and Hatch have no just cause to complain of the decree
requiring them to release to Woolfolk the legal title thus
improperly acquired by Jhem from Bullock, with notice
of Woolfolk's equity.

But, as Woolfolk's tender to Bullock was not made
until the day of payment had passed, and Bullock had
conveyed to Langdon and Hatch, and as moreover there
is no reason to apprehend that Woolfolk has not since
used the money, and he appears to have enjoyed the pos-
session of the land, it seems to us that the decree is er-
roneous, in not allowing interest from the time when the
money became due, until actual payment thereof. As to
this last, and comparatively unimportant matter, there-
fore, the decree is reversed, though affirmed in all other
respects, and the cause remanded for a decree for the in-
terest, according to this opinion.

But as there is a partial affirmance as well as reversal,
each party must pay his own costs in this Court.

Lougfiborough for plaintiffs; Otosleij ^ Pirtlc for de-
fendants.

FALL TERM 1841. 107

Maxey vs AverilFs Executors. Debt.

Appeal prom the Jefperson Circuit. Case 48.

Joint obligations. Partners.

JvDOB Marshall delivered the Opinion of the CourL October 21.

This action was brought against the executors of Av- xhc case stated.
erill upon a note signed "Averill & Browning,*' and the
defendants having pleaded, that Averill & Browning
were partners under that name, and that Averill died in
the life of Browning, who still survives; the only ques-
tion presented by the record is, whether, under such cir-
camstances, the action can be maintained against the
executors of the deceased partner. This question is, as
ip^e think, answered in the affirmative by the provision of
the third section of the act of 1797, concerning partitions,
joint rights and obligations, {Stat Law, 318,) which en-
acts that **the representatives of one, jointly bound with
another for the payment, &c. and dying in the lifetime of
the latter, may be charged by virtue of such obligation in
the same manner as they might have been charged, if the
obligors had been bound jointly and severally.*'

That the representatives of a deceased obligor, who That the repre-
was bound jointly and severally with another, might, at JoiJSy^Sid m^
common law, be sued in the lifetime of the co-obligor, ^^^^e^'^ndgS
is well established by numerous authorities, and the effect ^ sued' at com-
of this statute is to place the liability of the representa- established, and
tives of a joint obligor, dying in the lifetime of his co-ob- M^ecSonofSe
ligor, on precisely the same footing. By the* common ? o^,*^?^ •To'f
law, if one of two or more joint obligors died, the entire is to* place the
legal obligation devolved exclusively upon the survivors, ^ont^^va'^^x
and the representatives of the deceased obligor could ume*oihi8^*co-
only be made liable in equity. The effect of the statute obligor, in the

■', ' ^t . \ .t 1. 1 Mme condition.

m such a case, is that, so far as the remedy is concerned,
the legal obligation of the deceased does not, as at com-
mon law, merge in that of the survivors, but devolves
upon his representatives as if he had been severally and
solely bound, while the survivors remain also bound as

108 BEN. MONROE'S REPORTS.

Maxey if there had been no other obligor; and the obligee has a
AvEuiLL's Ex*s. separate remedy upon each of these liabilities.
IT T It is said, however, that the statute does not apply to

The representa- , . . . .

tivefl of one this case, because this is a case of partners bound jointly
partoerehip is by the note of the firm, executed in the name of the part-
bond' ^cxecirted J^^rship, and that by the well settled law of partnership,
by the partners, the le^al duty as well as the leffal nsht growing out of a

in Uie partner- ^ .- ^ . ^ , .. • d ♦

ship name* partnership contract, devolves upon the survivor. i>ut

this doctrine is no better settled at the common law, with
regard to the contracts of partners, than it is with regard
to the joint obligations of other parties: and as the case
of one partner who, being jointly bound with his partner,
dies in the lifetime of the latter, comes expressly and pre*
cisely within the w^ords of the statute, we do not feel au-
thorized to say that it is excluded from the remedial pro-
visions of the statute, and especially as we perceive no
ground for distinguishing, in this respect, between the
ease of partners and other obligors, sufficient to author-
ize the conclusion that the Legislature intended to dis-
criminate between them, or that it would have done so if
the application of the statute to the case of partners had
been particularly thought of. It follows that, in ouropin-
ion, the plea was insufficient to defeat the action.

The Court, therefore, erred in overruling the demurrer
to the plea above mentioned, and for that error the judg-
meVit is reversed and the cause remanded with instruc-
tions to sustain the demurrer and for further proceedings.

Pktition for a Re-hkarim;,

• (By Mr. Pirtlc.)

Tins case was heaid upon very short briefs, without
argument, and the importance of the principle to be settled
by it, will be an apology for asking the Court for a re-hear-
ing.

The commercial and manufacturing portions of our
community are very deeply concerned in Ihe establish-
ment of the practice, whether the executor or administra-
tor and heirs of a deceased partner can be sued at law,
or whether tlie action shall be against the surviving part-
ner only.

FALL TERM 1841. 109

Parlnerahips should be encouraged; they will be very Maxby
dangerous if this decision stands. averili/s ex's.

If the representatives of the deceased partner can be
sued at law, his individual estate may be exhausted and
bis family ruined, while the survivor is holding the means
of payment in his hands.

By the commercial law, on the death of one partner,
Ihe money, choses in action, stock and estate of every
discription, go to the survivor for the payment of debts
and settlement of accounts of the firm; the representa-
tive of the deceased has no right to receive any thing, or
to hold any thing belonging to the concern. What con.
sistency is there in this, if the individual estate of the
deceased may be, in the first instance, made liable for
all the debts of the firm?

The second section of the act of 1796, which destroys
bejns accrescendi, has never been construed to extend
to that kind of survivorship which existed between part-
ners—it still exists. It exists for commercial conven-
ience and almost from necessity; because the condition
of the affairs of the firm, to be well managed, must be
well known: this knowledge belongs to the survivor
ilone. The same propriety exists for confining the action
at law to the survivor. It may be said that the second
section of this act does not apply, in language, because it
speaks of "joint tenants,." and partners are not, strictly
speaking, joint tenants. Well, I think so too; but the
third section, which the Court has construed to include
partners, I think, has not such expressions as do properly
apply to partners. The section reads, **The representa-
tives of one, yoin% ftot^nti with another for the payment
of debt, 01 for the performance or forbearance of any act,
or for any thing, and dying in the lifetime of the latter,
may be charged, by virtue of such obligation, in the same
manner as such representatives might have been charged,
idkt obligors hvid been bound severallyas well as jointly."
Now, these expressions are not apt and proper to include
those under parol promises, or any thing arising by any in-
strument not under seal. The writing of partners are
not under seal. Partners could not be called obligors.
It was not untill 1812, that writings without seal were

110 BEN. MONROE'S REPORTS.

Maxet raised to the dignity of sealed instruments; before that
ATgHiLL'8 Bx's. timc, thcy were mere parol; no one who had executed a

note without seal, was, in legallanguage, termed an obli-
gor. It may be inferred then, without violence to lan-
guage, that the legislature did not mean to include part-
ners.

As partners are not strictly "joint tenants,*' so they
may not be considered "jointly bound." They are bound,
as they are possessed of their effects, rather in solido than
jointly, in the usual meaning of the word.

Our statute is copied from the act of Virginia of 1786,
and yet we see, by the case of Sale vs DishmarCs Ex*rs,
in 3 Leigh's Rep. 548, that partners have not been deemed
in that state, to be included in their act. The title of
the act shows the subject considered by the legislature: it
is, "An act concerning partitions, joint rights and obli-
gations:" 1 Lit. Laws, 910.

The statute of 1812, it is thought, does not enlarge the
act of 1796, or make any change in the law on this subject.
It only speaks of the dignity of writings not under seal,
and does not say one word about joint obligations, or the
writings of partners.

The remedy of the representatives of a deceased part-
ner, against the survivor, is in equity only. He cannot
sue at law. He cannot compel a distribution of effects,
but by the tedious process of a suit in chancery. The
way is open directly for the creditor of the partnership.
He can sue the survivor who has all the means of pay-
ment in his hands. But if there be any obstruction to
his action — any whatever — there shall be no defect of
justice as to him: the law gives him a right then to sae
the representatives of the deceased in chancery, where
every thing belonging to equity may be propely adjusted,
as to the rights of. the deceased, as well as the rights of
the creditor, for all parties can be brought before that
court.

A re-hearing is respectfully asked.

Henry Pirtls.

FALL TERM 1841. Ill

Response^

(By Judge Marshall.)

If it be conceded that the statute of 1796, referred to a note executed
in the opinion, did not, at the time of its passage, em- not^'unde^'Beai,
brace unsealed writings, because they were not then, of^^si^* 'S^'aa
technically, "obligations," and the makers of them were m«chan obiiga-
not "obligors," still as by the act of 1812, unsealed instru- the oration of
menls of a certain character are placed upon the footing (St<^iaio,3i8,)
of sealed instruments, and have the same effect, they i^h^J'anl oWi-
are, by virtue of that act, brought within the letter and Rations, as are
operation of the act of 1796, and general statutes regula- seal, and the re-
ting the remedy and the mode of proceeding against 2e^^representaJ
joint or joint and several obligors, (as in the case of ^^J*^'®f *^®^®*?-

' * o ' \ g^ partner exists

abatement by the sheriff's return,) have, since the act of ax Uw in virtue
1812, been uniformly applied to the makers of notes not 1795? "**''*^® ^
under seal, who are certainly bound by the note accord^
iog to its tenor, and may be, and are called obligors, as
the instrument itself is as much an obligation as if it
were sealed.

The makers of the note sued on in this case were,
therefore, bound; they were obligors, and as we know no
soch obligations as obligations in solido, as distinguished
from joint or joint and several obligations; they were
joint obligors, and one of them who has died, was jointly
bound with the other who has survived. If this cannot
be said properly of these parties, it could not be said of
any other persons not partners, who should sign their re-
spective names in full, to an unsealed writing, by which
they promised jointly to pay money, which cannot be ad^
mitt^. The case, therefore, as is said in the opinion,
comes expressly within the words of th6 statute. The case
of Salt vs Dishman's represenlatives, 3 Leigh* s Rep, does
not militate against this conclusion, nor against the ap-
plication of the statute to this case, any more than the
common law principles which it asserts and which are
admitted in the opinion. That case gives no construc-
tion to any statute, it was not founded upon a partnership
note, but upon the common law liability of the deceased
party and his representatives, which was decided not to

112 BEN. MONROE'S REPORTS.

Maxey have been merged by a sealed instrument, which had been
AvEHiLL's ex's, executed by the survivor.

With regard to the considerations of convenience and
propriety, referred to in the petition, it is to be remarked
that the obvious intent of the statute was to subserve the
convenience and interest of the obligee by enabling him
at once to make his debt by separate legal remedy against
the survivor and the representatives of the deceased at
the same time, or against whichsoever of them conven-
ience or interest may point out. The survivor may be
insolvent or inaccessible from distance, and in the case
of partners, the deceased may have received all the part-
nership effects. If in these or other cases, the obligee
might proceed in equity against the representatives of
the deceased, without having first resorted to the remedy
at law against the survivor, there is no reason why he
should be compelled to do so. Nor do we perceive any
imperative reason why he should bo compelled to do so
in any case. Why should he be delayed by, or involved
in a settlement between the partners? No disposition to
oppress the representatives of ihe deceased, as suing them
when the debt can be conveniently made out of the sur-
vivor can be presumed ; certainly it cannot be presumed
that an embarrassed estate would be pursued, when a
solvent one was equally accessible. Nor could the dis-
position to oppress, if it existed in any case, be indulged
to any great extent, while the equitable remedy for co-
ercing contribution or settlement, is open to the repre-
sentatives of the deceased.

Petition overruled.

Duncan for plaintiff; Pirlle and Wolfe for defend-
ants.

FALL TERM 1841. 113

Craddock vs Hundley. CovEiriifT,

Ebbor to thb Jbffbrsost Cibcuit. Case 49.

Covenant. Averment. Demurrer.

Cnir Jvmcs Bobbhtsor delivered the Opinion of the Court. October 21.

O5 the 17th of June, 1836, Pascal D. Craddock ac- a writing ac-
knowledged in writing, that he had on that day received ^ceT^t of «l 000
from Thomas HumSey five thousand dollars, '*to lay out *'toiayoutinne'
in negroes for him" — and in June, 1836, Hundley sued Soyenantee'^.
Craddock in an action of covenant, averring that he had f^Xy ""oX^e
"fciled and refused to lay out said money in negroes," '^'^ "* "•"
and had converted it to his own use, and refused to re- nantor.
itore it.

Craddock demurred and pleaded performance ; but the
Gooit overruled his demuner, and verdict aikl judgment
were rendered against him for $4,439 22 cents.

A reversal of the judgment is urged in this Court on
three grounds: 1st, that the declaration is insufficient —
2d, that there is a bad breach, and therefore the general
leidict is not maintainable — and 3d, that the jury had no
right to find more than nominal damages.

Bat no one of these objections is, in our opinion, sus-
tainable.

1. We have no doubt that the writing sued on, im- j^ gsMzai de-
ports a covenant to lay out the $5,000 in negroes for «;«"•' ^ f *?•

TT n * • .r V .1. J 1 .. , , , claratum should

HunaUy. ^nd, though the declaration may lack tech* be overmied,
nical precision, it is substantially good, and assigns a be^ insofficieS
sufficient breach of the undertaking to purchase negroes. ^"*^^-
And consequently, even if there be any other and insuf-
ficient breach, the general demurrer ought to have been
overruled.

2. But there is, in efiect, only one breach. The al-
legation, as to the refusal to refund the money, should be
understood, not as a diatinct breach of the covenant, but
only as a collateral and subsidiary averment, to show a
substantial cause of action for more than nominal dam-
ages still existing, without any waiver, express or im-

Vol. n. 15

114 BEN. MONROE'S REPORTS.

Chaddock plied, and to show, also, the measnre of the damages

HuNDLBT, sought, and to be assessed.

Covenant ac- 3. The legal criterion of assessment on the breach, as
TcceTDtoff6,ooo charged and established, may, perhaps, be somewhat
' n^Xliat questionable. Had Craddock restored the $5,000, Hund^
i^'breach "that ^^ ^^S^^ ^^^ hsive been entitled to more than nominal
defendant had damages ; for there was no proof that any actual loss re-
the^ «6,oo5^hi suited to him from the non-investment of the fund in
'JtoYe it'to°piainI slaves; and, in such a case, it would indeed be difficult,
Sf'/vJ?J?^^^^°' if ^^^ impossible, to show the extent of the damaire

15,000 (less by a i . i . /. ^ i ^

smaU part laid which m fact accrued.

wV?cV«?fs°iS?^ But had Craddock prudently invested the deposit in

S^t app^r?i2^to sl^^v^S' ^ ^^ agreed to do, the property in the slaves so

be neater than purchased would have been thereby vested in his con-

the breach as* . tt n t »

aigiedwouldjuB- stituent, Hundley, who, m an action of detinue or tro-
**^' ver, would have been entitled to recover them or their

value, which, in the absence of any other proof, must be
presumed to have been at least equal to $5,000, which
had been paid for them. Then it does seem to us, that
as the damage resulting to Hundley from Craddoek's
breach of covenant to "lay out" the $5,000 in slaves for
him, must be considered to have been equal to the valae
of the slaves, had they been properly purchased, he had
a legal right to recover for that breach, in this action,
$5,000 at least, excepting only so far as any portion of
that sum had been property applied or refunded ; and
this, as we presume, was the only object of the supple-
mentary averment that the whole deposit had been con-
verted by Craddock to his own use without any restitu-
tion.

It appears that a small portion of the $5,000 had been
refunded, and therefore the verdict was for only the resi-
due of that amount, with interest thereon, for a period
certainly not longer than that for which interest was just-
ly chargeable.

We are, therefore, of the opinion that, though there
was no covenant to restore, in any event, the money de-
posited, and therefore, an action of assumpsit or a bill
in chancery could alone have been maintained, for the
restitution of that deposit eo nomine — ^nevertheless, the
damages, as adjudged in this case, for the breach of the

FALL TERM 1841.

115

covenant to lay out that fund in negroes for Hundley, do
not appear to b^ greater than those which should be
deemed to have resulted to him from that breach alone,
and the judgment in this case will, of course, bar any
action for the money deposited.

The judgment of the Circuit Court is, therefore, af
finned.

PirtU for plaintiff; GtUhrie ^ Loughborough for de-
fendant.

LOUOBB, &C.
COLTON, 6lC.

Lougee, &c. vs Colton, &c.

Erbob to the Jeffersopt Circuit.
Pleading. Distress for rent.

Chip Josticb BoBBsnov cteliTered the Opinion of the Court

As there was a joint demurrer to the three several
pleas to the landloril's avowry of distress for rent, the
demurrer was properly overruled, if either of those pleas
be good.

L The first and third pleas are substantially the same:
that is, that when the distress was made, the term hav-
ing expired, the relation of landlord and tenant had
ceased, the landlord was in possession, and the distrain-
ed goods were not on the demised premises.

2. There is nothing in any or all of these facts, as
pleaded, which can avoid the avowry. At common law
the landlord could not distrain after the expiration of the
term, nor at any other place than on the demised premi-
ses, nor after the tenant had left those premises.

3. The Virginia Statute of 1748, still viewing dis-
tress for rent as a real and local remedy arising from
privity of estate — in providing for distress, after the end
of the term, still required that it should be made whilst
the tenant was in possession. Bat since the ei>actment
of the Kentucky Statute of 1811, the right to distrain for
rent is not limited by the tenant's possession: no reason
remains for such a restriction, which might be altogether
subversive of the end and policy of this remedial statute,
the first section of which authorizes distress in any county

Replevin.
Case bO.

October 20.

The case itated.

Plea to as aTow-
ry of diatress
made for rent,
«that when the
distreas was
made, the rela-
tion of landlord
and tenant )iad
ceaaed, the land-
lord was in pos-
session and the
goods were not
on the demised
premises" is not
good.

Slnee the statute
of 1811, KStaU
uU Lav, lSa6>
right to destrain
for rent is not
limited to ten-
ants in posses-
sion.

116 BEN. MONROE'S REPORTS.

Loo»iB, Ac. to which the tenant shall have removed himself and proper-
CoLTOK, &c. ty , and a forliori must be construed as intending a distress

any where in the county of the demised premises after the

tenant's removal of himself and effects from those premL

ses.

To sToid the The second plea is, not that there was no rent in arear,

afowij of difl- j^ merely that the tenant was * 'not indebted the rents in

IT6SB lOT rent, a '

plea strictly de- the avowry mentioned, in manner and form as avowed —
m^areearfiii'nc- such a general plea is not an appropriate defence to such
OcS^^ ur^t ^^ avowry for rent. It does not necessarily import that
was not indebted ^^q ^^^ ^ag ju^ when the distress was made ; and to a-

the renta in the . .

avowry mention- void the distress, a strict plea, denying any rent m arrear,
nyit^tkat any is necessaiy. The avowry being a special justification of
»flir^rftt<, t« not ^^ apparent trespass, cannot be met and avoided by a

general plea, which, though sufficiently responsive to the
general averment of indebtedness in an action of debt,
ought not to be deemed sufficient to show tha ta distress,
specially averred, was tortious, when, consistently with
the foim and literal effect of the plea, as responding to a
special avowry, some rent, though not of the amount
avowed, may have been in arrear, and therefore might
have justified the distress as made. The effect of the
plea, as pleaded, is only that the whole amount of rent,
as avowed, was not due — ^it is not that no rent was due.
We are, therefore, of the opinion, that neither of the
pleas in this case was good in demurrer.

And consequently, the judgment is reversed and the
cause remanded, with instructions to sustain the demur-
rer to all three of the pleas.

Petition for RB-HBARmG>

• (By Mr. Piitle.)

The counsel for Colton & Moore feels constrained io
ask the Court to re-hear or re-consider the case. Colton
& Co. pleaded that, at the time of the sueing out of the
distress warrant, they were not the tenants of said Lou-
gee and Moore ; that tbey^ had surrendered the demised
premises to them, and that Lougee and Moore were
themselves in possession.

By the common law, there could be no distress after

FALL TERM 1841. 117

the termination of the lease, because, then there was loossb.&c.
no longer a tenant to a landlord; but during the lease, Golton, &c.
it did not matter whether the tenant was in actual pos-
session or not. By the Virginia statute of 1748, it was
made lawful to distrain for rent in arrear, after the de-
termination of the lease, in the same manner as if it
bad not been determined : ' 'provided, that such distress be
made within six months after the determination of such
lease, and during the continuance of such landlord's ti-
tle or interest, and during the possession of the tenant, \
from whom the arrears became due." This is the only
enactment that has pretended to change the common
law as to the time when distress can be made for rent.
The act of 1811 of this State, speaks alone oi the place;
that is, it takes off the restiiction of the common law,
which confined the taking to the demised premises. Sup-
pose a statute had passed, saying, that distress for rent
might be made at any place as well as on the premises »
would this alone have authorized this rigorous process
after the expiration of the lease? One might be allowed
to think not; because the place is one thing, and the
time when the right to distrain at all shall end, is an-
other thing. The party may well have his distress war-
rant to range all over the State during the lease, and
still not necessarily have the right to have a warrant at
all, after the lease has expired.

If the limitation, ''during thi possession of the tenant,'*
is to be deemed abrogated or repealed, why not dispense
with the restriction of "six months" and the "contin-
QUice of the landlord's title?" If there be nothing real
between landlord and tenant, and the remedy, extraor-
dinary and ex parte, is to have no restraint of time, as
fixed by the common law, barely because it has none of
place, why regard the "six months?" And, if it is en- \

tiiely personal, and therefore the tenant's possession, or
the expiration of his lease is not to be regarded, why
look to the six months or the landlord's interest in the
premises either? Throw off these restraints in the act
of Virginia, and we will have distress by any one who
]iiay sue it out, twenty or thirty years after all privity of
estate haa ceased between the parties, who did, indeed,

118 BEN. MONROE'S REPORTS.

LouoBB, Ac. once occupy the relation of landlord and tenant^ and
CoLTON, &e. this too, by executors or heirs, acting in good faith, to
whose hand, writings, testifying demises and covenants
for rent may come, but when nothing is, in troth, due.
But if we only extend this harsh and one-sided proceed*
ing, as the law may plainly authorize it, we shall obey
a maxim not unworthy the regard of freemen, that all
statutes extending a proceeding out of doors and €X parte,
for the enforcement of a right by seizure and sale, are to
be rigidly construed.

Rents are real in many respects — they pass to heirs,
and a privity between the heir and the tenant arises from
this. The assignee of the reversion, and the tenant, sub-
tenant, or assignee of the lease, have their respedtive
privities and rights and liabilities arising from the real
relation; and there is a privity, real in fact and in law,
arising between landlord and tenant, just because one
owns the land and the other occupies or enjoys it; and
it seems to the counsel that there may be reason for al-
lowing distress for rent during this enjoyment of another
man's land or his house, that may not exist after this
relation of privity has ceased. It was allowed originally,
only because the tenant held the otiier's property, owed,
and did not pay. After he has surrendered to him who
was his landlord, he is no longer his tenant, and, prima
facie, society would think he did not owe; and if he did,
the debt might be enfoiced in the courts of justice.

It is an old rule, in the construction of statutes on the
same subject, that they shall be taken in pari materia,
and if, when viewed together, the provisions of each can
stand, one shall not repeal the other. Now, apply this
rule^o these statutes, and where is any inconsistency as
to the time when distress may be made? The act of
1811, (Stat. Law, 1356) provides, "that if the tenant has
removed himself and property out of the county where
the land lies, then and in that case, the warrant of dis-
tress may be directed to, and executed by, any sheriff ot
constable of the county to which said tenant has re-
moved his or her property." Surely this may have its
operation, and yet the distress be confined to the time
fixed by the section quoted from the previous statute.

FALL TERM 1841. 119

It is frequently the case during a lease, that the tenant Lou«i» 4«.
wmoYes out of the neighborhood, perhaps out of the Coltoit, Ao.
county, still holding the premises by himself or his sub-
tenant. In such case, the law as it stood in 1811, is
changed, and distress may be made off the premises, and
even out of the county. Where the tenant has not re-
moved even off the premises, the act of 1811 authorizes
his "goods, chattels and slaves" to be taken, as well off
the land as on it; but this may well stand with the for-
mer law, as to the period within which this may be done.
There is nothing in the act of 1811 that intimates a dis-
tress, after the relation of landlord and tenant has ceas-
ed. It commences, "that when any landlord shall wish
to distrain on his tenant, or any person claiming or occu*
j/ying under him," &c. not on one who had held as his
tenant— 4ind the warrant is to be directed to the officer
"of ike county where the land lies:" (see 1st section}
whj this, if there is not a looking to the realty and the
privity springing out of the real relation? Then the dis-
tress is to be made on the property "of the said tenant,
or of any under-tenant, claiming and occupying said
land," locking to the present, not to the past.

Leases will be dangerous things, if he who was land-
lord, shall be allowed, after the possession is quietly sur-
rendered to him, and he who was tenant has gone his
way, to take out this catching process and seize whatev-
er he may find. HeNHT PlBTLE.

Response,

(By Chief Jnstico Robertaon.)

The petition concedes, that the act of 1811 authcjizes ThestatMari-

4 distress after the tenant has left the demised premises, s"^*i^thoiiMd

bot seems to insist, if we understand it in this respect, dwiress alone on

^atthis statutory right is restricted to cases in which the mfsesTs^umYSi

<lemi8e had not expired, and in which also rent was ?w!!i°S?tiytSe

doe before the 'expiration of the term, and there was aft^j%fo™2d*of

therefore a right to distrain during the subsistence of the the^ teim. if ie«-

^se. Such a deduction is, in our opinion, clearly in- tenwt's powM-

admissible, according to the common law, confirmed by SSJiliiStt

the statute of Marlb. 52, H. 3, 15— no landlord could P«>^wion >» ».

120 BEN. MONROE'S REPORTS.

Lovau, &e. distrain elsewhere than on , the land out of which the

CoLTOH, Ac. rent issued. The Stat. 8th Ann. 14, authorized distress
ted b Vi . ^'^i^S ^i* calendar months after the end of the term, if
ginia sut 1748, the lessoi's title and the tenant's possession still contin-
rstatuu^ Jmw', ued; and this provision is re-enacted by the 11th and
iutuii^oMsi^^^ *12th sections of the Virginia statute of 1748, (Stat. Law.
ma^fce iS"' 1354.) Therefore, when the Kentucky statute of 1811,
eny time within (lb. 1356) wss enacted, distress might have been made
S MpLralion^of ^t any time within six months after the expiration of the
Sthorizcd ^e ^^^^> ^^* could be made only on the demised premises,
issuing of the and whilst the tenant remained there. But this latter
tiesB to any enactment authorized a landlord, as long as he had a
CkSamonw^aiSt ^gf^l ^ distrain, to have his distress warrant issued to
to^ which tenant ^nv county in the Commonwealth, to which the tenant

might haTe re- ' ' , m .

moved hu el- had removed himself and effects. This, also is con-
ceded by the petition. And in the case of Mitchell vs
EranMin, 3 /. /. M. 482, it was decided that since this
act of 1811, the right of distress was not confined to
goods on the leased land.

Then why should the provision of the act of 1811,
authorizing distress after the tenant's removal, be restrict-
ed to the continuance of the term? Such an interpreta-
tion is unauthorized by the letter and the objects of the
statute of 1811, whether considered alone or in connec-
tion with the common law and other statutes, on the
subject of distress.

Under the statute of 1748, the landlord had a right io
distrain for six months after the expiration of the lease;
but that right might have been lost by the tenant's re-
moval. The act of 1811 comes in and provides that the
right to distrain under the pre-existing law, should not
depend on the continued possession of the tenant, nor
be affected by his removal. We can perceive no author-
ity for any other interpretation, and it does seem to us,
that any other would virtually frustrate the evident pur-
pose of tlie Legislature, and might, in a great degree,
abrograte distress for rent in Kentucky, where, in most
cases, it is not collectable until the end of the lease.
The act of 1748 authorized distress after the expiration
of the term, whether the rent was due before or after that
time, but limited the distress to six months, and to the

FALL TERM 1841. 121

dembed land. The act of 1811 authorizes the distress i-ouqeb, &c.
after the tenant's removal, and thus repeals so much, and Coi^toi?, &c,
(aly so much, of the act of 1748 as adhered to the old
feadal doctrine, and therefore did not permit distress af.
(er the tenant had left the premises.

It is neither denied, nor can be doubted, that nosv, in
Kentacky, the tenant's goods may be subject to distress
thoagh not on the demised premises, and that there may
be distress for rent after the expiration of the teim.
Why then should the possession of the tenant be indis*
pensable to the right to distrain? Can any consistent
reason be assigned for such an anomalous requisition?
And ir, as is admitted in the petition, a landlord, whose
rent was made payable during the term, may distrain,
notwithstanding the removal of his tenant before the ex-
piration of the term, why may he not distrain if the re-
moval be after the end of the term, and whilst the right
to distrain would have existed, had the tenant continued
o&tbe land? And why should a landlord, whose rent was
not eoUectable until the close of the term, lose his reme-
dy by distress^ by the tenant's surrender or removal at or
before the expiration of (he term, when, if he had con^
tinaed only a fraction of a day longer in possession, the
ri|^t of distreas would have accrued, and would have
continued for six months, notwithstanding the tenant's
roQoval within that period. The statute of 1811 makes
no discrimination as to the time of removal. It only
gives the landlord the same right to distrain, after remo^
val, as he would have been entitled to had there been no
removal. It certainly does not require that the removal
thall have been after the rent became due and distrain* *

able. Had it made any discrimination as to the time of
removal, would it not have provided for a removal be.
fore the right to distrain had accrued, rather than for a
removal, after the landlord had acquired that right, and
foiled immediately to enforce it ? The obvious e£fect of
the statute seems to us to be, that the tenant cannot de^
•troy the right of distress by removing at any time when«
bad he not removed, the landlord would have had a right
to distrain.

Vol. 11. 16

122

BEN. MONROE'S REPORTS.

Johnson

Wblbt, AC.

Since the act of
1811. the right of
the landlord to
distrain for rent,
exists on or off
the leased prem-
ises for 6 months
after the expira-
tion of the lease.

And consequently, in our opinion, the right to distrain
now exists here, on or off the demised premises, for six
months after the expiration of the lease, unaffected by
the tenant's removal during that period, whether before
or after the rent became due, or before or alter the end
of the term.

The petition is therefore overruled.

WheaUey for plaintiffs ; Pirtle for defendants.

Chancery
Case 51.

October 25.
The case stated.

One who sells a
biU of exchange,
without any
fraud, and who is
neither draweror
endorser, is not
responsible, ex-
cept for failure
of consideration
arising from the
Bon-acceptancey

Johnson vs Welby and Alexander.

Error to the Louisville Chancery Court.
Fraud, Failure of consideration.

Judge Mabshall delivered the Opinion of the Court.

Joseph Johnson having, in fact, sold and delivered the
bill of exchange to the complainants, Welby and Alex-
ander, without being endorsed by him, but with the en-
dorsement of his son, James Hamilton Johnson, who
was the payee, and there being no proof of fraud on the
part of said Joseph, either in representing that he was
the endorser, or in using artifice to conceal the fact that
he was not the endorser, or to induce the belief that he
was, or in knowingly permitting the complainants to act
under such belief; and the allegation of mistake or ig-
norance, on their part, as to the identity of the person
whose name was upon the bill, or as to the precise name
which was upon it, not being sufliciently supported by
proof, and being, moreover, inconsistent with that vigi-
lance which belongs, ordinarily, to such a transaction,
and especially when there is no ground shown for the un-
bounded confidence which the complainants profess to
have had in said Joseph Johnson; we are of opinion that
they had no right to demand payment from Joseph John-
son for the money and goods given in exchange for the
bill, except on the ground of a failure of the considera-
tion for which said money or goods were given ; and that
the mere non-acceptance and non-payment of the bill, to
which said Joseph . was no party, did not constitute nor

FALL TERM 1841.

123

proye such failure of consideration, if the amount could
be recovered from the drawer or the endorser. And al-
though the complainants allege the insolvency of the draw-
er when the bill of exchange was sold to them, and since
that allegation is denied, and there is no proof, nor is
theie any allegation that the endorser was insolvent when
the bill was sold. The case, therefore, does not present
that species of fraud which consists in selling a bill of ex-
change, for money and goods, when the vendor knows
that it will not be paid and cannot be enforced — nor is
there any proof that Joseph Johnson knew that the per-
sons on whom the bill was drawn were not bound or
fronld refuse to accept and pay it.

On the whole, therefore, we are of opinion, that the
complainants have made out no such demand against the
defendant, Joseph, as should have been decreed in this
case. The decree is, therefore, erroneous and must be
lerersed, and the cause remanded, with directions to dis-
miss the bill, without prejudice to any remedy which the
complainants may have against said Joseph, on failure to
coerce payment of the bill of exchange from the parties
thereto, and also to dismiss the cross bill of said Joseph,
without prejudice to his claim for the residue of the price
for which said bill was sold, should the complainants
socceed in collecting the amount thereof, or fail therein,
from other causes than insolvency of the drawers and

endorsers.
Decree reversed, &c.
CaUs <f Lindsey for plaintiff; Grigsby for defendants.

Stkadss
Fork.

or non-payment,
arifling from in-
•olTency of the
drawee, and no
zecoTei^ can be
had againat inch
an one 'without
allegation and
DTOof to that ef>
feet.

Strader vs Pore.

Appeal from the Louisville Chaitcert Court.
Lien. Parties. Jvrisdiciian in rem.

Cmp JvvnsE Bobbbtson dellTered the Opinion of the Court

The Chancellor having, in this case, attached the xhe evn lUtad.
Steamboat Pike, and rendered a decree in rem, for dam-
ages assessed under his order by a jury, for the unauthor

CHAircBxr.
Case 52.

OcUhtr 37.

124 BEN. MONROE'S REPORTS.

Stride |2ed transportation on the said boat, and conseqaential

Fo8E« ' escape of a slave, as alleged in a bill filed by Joseph L.

' Fore, as owner of said slave ; the only question we shall

consider, in revising that decree is, whether the statutes of
1824 and 1828, (StaL Law, 269-60,) authorized such a
proceeding and decree, without making the owner or any
officer of the boat a party to the bill.

For such transportation as that charged in this case,
the statutes of 1824-8, supra, provide that the delin-
quent officer or owner of the boat, so illegally used, shall
be liable to an indictment, fine, and imprisonment, and to
a civil suit for damages, and also that the boat "shall be
"liable to the party aggrieved by such removal, and may
"be proceeded against in chancery, and condemned and
"s^oidto pay and satisfy such damage and the costs of
"suit;" and for assessing the damages, the act of 1828
authorizes a suit, "either at law or in chancery," against
the owner, mate, pilot and engineer, "as well as the mas-
ter," either severally "or jointly with the master."
In enacting these statutes, did the Legislature intend to
18^4-!^ ^i§tau give to the Kentucky Courts of equity maritime jurisdic-
does not confer ^^^^* tx parte, and strictly in rem? or did it intend only
on the Courts of to give a statutory lien on the condemnable boat, to be
time juSdicSon enforced by a bill in * 'chancery," as in other cases of lien,
«uicSy'^/» rm, ^i^her legal or equitable? The latter object seems to us
itoniy intendB to ^o be the only one fairly inferable from the style and

ftve a statutory j j j

Uenon the con- tcnor of the enactment of 1824-8. A personal liability

demnable boat to .% ' n j. 'jjr jxi_ r r-

be enforced by to damages IS first provided for, and then, for enforcmg
M ino^eTcMes *^ damages to be assessed, the boat is made liable, and
of lien, legal or may be subjected, by a bill "in chancery," to the satis-
faction of those damages and the costs of the suit. This>
as it seems to us, should be understood as only giving a
lien on the boat, as a collateral security, to be enforced in
chancery as mortgages; and equitable and statutory liens
may be enforced by bill in equity, to which all persons
essentially interested are necessarily made parties. And
this interpretation has hitherto been virtually given to
those statutes by this Court in the cases of Church et al,
vs Chambers, 3 Dana, 274, and of Case et al vs WooUy,
6 /&. 18.

FALL TERM 1841. 126

Moreover, withoat an implicit annoancement, or an SraAou
QoambigQOus manifestation of an intention to that effect. Fork.
we ought not to presume that the Legislature of Kentuc-
ky intended to give to our State Courts of equity mari-
time jurisdiction, in such cases of torts on steamboats,
more than in all other cases in which that species of prop-
erty may be subjected to sale for satisfying a judgment
or decree for damages.

If an action at law be brought for the damages, the J^^^^^^J^Jj J*
person guilty of the alleged wrong should certainly be for redress of the
made a defendant; and if damages be assessed against i^^these^tSiue^s,
sDch defendant, surely he would be a necessary party to ^« {hf^ aiSgeS
a bill in chancery for enforcing these damages by a se- wrong, is a ne-

■ 1 i*i I ^'iji_ ij cessaiy party; so

qoestration and sale of the steamboat. Ana why would inasmtmchan-
Dot the owner of the boat be always an indispensable cessary ^*par°y]
party, as in all other cases in equity, in which the sale of JJ*^«" 'estratfon
property is sought? And if a suit in chancery be brought and sale of the
in the first instance, why should not those persons be ne-
cessary parties, who would have been such had damages
been first assessed in an action at law?

By providing for a proceeding "in chancery" against
(he boat, the Legislature should be understood as intend-
ing, not a libd, as in a strict maritime case, governed by
the civil and international law, but a bill in chancery,
regdated by the ordinary principles of the common law,
as recognized and practised in our courts of equity.

Itseemstous, therefore, that Strader, the owner of Thotigh the injn-
the steamboat in this case, ought to have been made a |^^Ly°Sh^'1,f
defendant to the bill, and that the chancellor erred in thcpersohs nain-

, ^d in tne statuto

overruling his application to be permitted to make him- than the owner,

self a party and defend the suit. And we are of the Tnece^sw^^pw:-

opinionalso, that if the owner was not on the boat at ^^^^^^

the time of ihe alleged wrong, and be not, therefore,

personally liable therefor, the master or other person who

is personally responsible, should also be made a defen^

daat, for otherwise it might be possible that damages

may be assessed and enforced against the innocent owner

of the boat without any notice to the only individual per.

ionally responsible for the alleged irijury, and as against

whom, therefore, the evidence taken in this case would

126

BEN. MONROE'S REPORTS.

Com'th. fob
TouLicAV et tix.

Heatsbbn etal.

be unavailing and inadmissible, in a suit by the owner
for restitution or indemnity.

The decree of the Chancellor is, therefore, reversed
and the cause remanded, with leave to amend the bill and
make the proper parties thereto.

Duncan for appellant; Gates (^ Lindsey for appellee.

COVBWAWT.

Case 53.

October 30.

EzecutOT be-
comes vested by
law with all tes-
tator's chatties
for the payment
of debts and le-
gacies.

No action at law
can be main-
tained for the re-
covery of either
a specific or pe-
cuniary legacy
until executor
has waived his
prior right there-
to.

At common law
legatee may re-
cover damages
•gainit ezetutor

Commonwealth for Toulman et nx. vs

Heaveren et al.

Appeal from the Bracken Circuit.
Legacy and legatee. Executor. Chatties.

Chisf Justice Robertson delivered the Opinion of the Court

The single question brought up for decision in this case
is, whether an action of covenant can be maintained
against an executor, for a breach of one of the express
conditions of his fiducial bond, in unreasonably withhold-
ing from the relator a specific legacy ?

As the law vests the title to all the testator's chatties in
his executor, as a trust fund, for the payment of bis debts
and legacies, the right of a legatee to a chattle, specifically
bequeathed, is merely equitable and contingent, depend-
ing on the executor's consent, which a court of equity
alone can compel him to give.

And, therefore, no action at law can be maintained for
the recovery of either a specific or pecuniary legacy, until
the executor shall have waived his prior right thereto, and
thus passed the legal title to the legatee. But even ac-
cording to the common law, a legatee who, by the execu-
tor's assent or otherwise, has acquired a legal right to the
thing specifically bequeathed, may recover it, in an ac-
tion of detinue^ from the executor himself, or if tbeie
bad been a promise to deliver it to the legatee, he may
recover the value of it in damages in an action for the
breach of that undertaking.

Then, upon common law principles, a legatee may
maintain an action against a recusant executor for dama-
ges for a breach of his express covenant to pay the legacy.

FALL TERM 1841.

127

even Ihoagh he could not, in an action of detintu, recover
the specific thing bequeathed.

One of the conditions of an executorial bond, as pre-
scribed by our local law, is that the executor shall pay all
legacies as far as assets may enable him. And surely an
action may be maintained for damages for a breach of
that express covenant, as well as for any breach of any
other species of covenant; and in such an action, the.
vdhte of the legacy may be recovered in damages.

fiat to remove all doubt, the Legislature has expressly
authorized ^, suit for any breach of an executor's bond ;
iSto^. Law, 660. And, of course, this suit may be an
action at law, as this Court has often and with unques-
tionable propriety, hitherto decided : See Jackson et al.
Ts The Bourbon Justices, 2 Bibb, 292, and Moore vs
Walkfs heirs, 1 Marshall, 489.

It is, therefore, considered that the judgment of the
Circuit Ciourt be reversed and the cause remanded, with
instructions to overrule the demurrer to the declaration.

W. C. Marshall for appellant; Payne ^ Waller foi
appellees.

Ward.

for violatiiig his
express cove-
nant in his ex-
ecutorial bond to
pay the legacy,
and in such ac-
tion may recov-
er damages e-
qual to the lega-
cy. So by stat-
utes.

Ringo's vs Ward. Replevin.

Error to the Fleming Circuit. Case 54.

Execuiions. Evidence. Officer's justification.

ivDn EwiNe delivered the Opinion of the Court . November 1.

This is an action of replevin, instituted by the defen-' The case stated,
dant iu error against the plaintiffs in error, for a negro
womon and child. Ludwell R. Ringo avowed the tak-
ing of the slaves, as deputy sheriff of Fleming county,
under an execution which issued from Carter, in favor of
Burtis Ringo against Jacob Kouns and George W. Ward,
u the property of the defendants in the execution, and
avers that the slaves belonged to them, and was not the
property of Thomson Ward. John R. Ringo made cog-
nizance as the assistant of the deputy in taking the prop-
erty.

128 BEN. MONROE'S REPORTS.

Hr»«o'8 The plaintiflF in replevin pleaded to the avowry &nd

Wakd. cognizance, that the slaves were the property of the plain-
tiff at the time of taking, as alleged in his declaration,
upon which issae was taken.

And evidence having been adduced tending to prove
that the slaves were the property of the defendants in the
execution, and that the claim set up by the plaintiff, T.
Ward, was colorable and void, the Courts on the motion
of the plaintiff, instructed the jury that the execution
under which the slaves were takeo, issued from Carter to
Fleming, ''was illegal and void, and that it conferred no
authority on the sheriff to make the levy, and that Ringo
acquired no right by the levy, to said slaves, against the
plaintiffs in this action, provided at the emanation of
said execution, there was one on the same judgment, in
the hand3 of the sheriff of Carter, and if these facts ex-
isted, they must find for the plaintiff."
The regniariiY of The jury having found for the plaintiff, under this in-
wcuSn to*S struction. the defendants have brought the case tothi*

county different Court.

ifrom that in •ny\ i • • i t

\7hich the judg- Without determmmg whether a motion to quash,

iS^defendanV^re. directly made by the defendants in the execution, should

'Snmured^SS^ in ^® sustained, wheu the same has issued to another county

replevin, for pro. than that of the residence of the defendants in the execu-

shenff under tiou or the county where the judgment was obtained,

eepecSfy ^on'a without the retum upon a previous execution required by

trial y,^^J^^ the statute, or the proper aflSdavit ; as such question does

astotherishto^ uot now arise, and it would be extra judicial to deter-

m^Sefendant'^u mine it, WO are clear that the question cannot be raised

jhe execution, ^^y ^^^j^ ^j^^ plaintiff in this case, if it could be raised

collaterally in any case. The execution is a full authori-
ty to the sheriff to levy and sell, notwithstanding aay
inegularity in its emanation, which does not render it
absolutely void. He is to look to the command of the
writ, and it is his authority and justification for bis acts,
and he is not bound to look behind it or enquire into the
steps which the law, as directory to the clerk, requires
him to take, or see taken, prior to the issuing of the exe.
cution.

Besides, the plea of fraud does not pat in issue the
validity of the execution, but only claims property in the

FALL TERM 1841.

129

slaves, and controverts, indirectly, property in the defen-
dants in the ezecntion. Upon the fact of property or not
in the plaintiffs, was issue taken, and that issue only is
submitted to the jury. The question of a levy under the
execation is conceded, or at least is not controverted, and
its validity or invalidity can have no bearing on their
verdict.

The instruction of the Court was, therefore, mislead,
log and erroneDus.

Wherefore, the judgment is reversed and cause remand,
ed, that a new trial may be granted, without costs, and
the plaintiffs in error are entitled to their costs in this
Court.

Hard for plaintiffs; Owsley for defendant.

BOWLAWD, AO.

Han 9 A.

Rowland and Riddle vs Hanna.

Error to the Jeffrrson Circuit.
Assumpsit. Presumptive evidence.

JtMB MiMfTAT.T. deUvered the Opiaion of the Court

This action of assumpsit was brought by Rowland and
Riddle to recover from Hanna one half of the price of a
wall, erected by the plaintiffs, on the line dividing their
lot from his, in the city of Louisville, which wall was
used by the defenAtnt as a wall of his house, erected on
his own lot, while the plaintiffs were building their house
on their lot. The Circuit Court having refused to permit
the plaintiffs' witnesses to state the usage prevailing in
Louisville, as to the rights and liabilities of the owners of
adjoining lots, in building adjoining houses, with a com-
mon wall between them, instructed the jury, upon the
evidence before theiii, to find for the defendant; and the
propriety of these opinions of the Circuit Court is the
only question presented for our consideration.

It may be assumed, upon the evidence, that the plain.

tiffs had determined to build their house and were going

onto build it without any consultation or agreement with

the defendant, who resided at Frankfort; and there is no
Vol. II. 17

Case.
Case 55.

Nmemher I,
The case stated*

Where the evi-
dence condaces,
in any degree, to
prove the aa-
suxnpsit, it is im-
proper to inatnict

130 BEN. MONROE'S REPORTS.

BowLAtfD, AC proof of any communicatioa between the plaintiffs and

Hanwa. the defendant, in relation to the building of their houses,

the jury as in at any time, except that a third person, who had an inter-

•ease of non-auiL ^^^ j^ ^^^ defendant's building on his lot, having informed

him, by letter, that the plaintiffs were going on to build,
and that if he would avail himself of their wall in build-
ing a house on his lot, he must do something towards
building at once; he informed his correspondent, in an-
swer, that if, in order to avail himself of the plaintiffs*
wall, it should be necessary for him to do any thing be-
fore his arrival at Louisville in ten days, he would be
obliged to him to have en interview with the plaintiffs, and
to have his cellar dug and his joists put in, and concluded
his letter by statir)g that it was not his object to do more
at present than was absolutely necessary, that is, to have
his cellar dug and his joists put in. This letter his corres-
pondent showed to one of the plaintiffs, but made no con-
tract with him; and when the defendant arrived at Louis-
ville, the plaintiffs had built their cellar wall, and con-
tracted for the superstructure of brick, having placed one
of the walls partly on the defendant's lot, so that the di-
vision line passed through the middle of it. In this con-
dition of things, the defendant, there being already a wall
on the opposite side of his lot, contracted with the same
brick mason to build the front and back walls of a house
on his lot, which were, in fact, carried up at the same tipe
with the walls contracted for by the plaintiffs, and were
connected with the wall on the division line in which the
joists of the defendant's building were inserted; but the
defendant, in making this contract with the brick mason,
explicitly stated to him, that he had nothing to do with
paying for the division wall, and would not pay for it.

It seems to us, that upon this evidence the jury was au-
thorized to infer that the plaintiffs built the wall of their
house equally on the defendant's lot, in consequence of the
intimation in his letter that he desired to use said wall as
the wall of a house to be built by him at some future
time, and of his virtual request that he might so use it,
which they might understand as a permission that they
should build the wall in part upon his lot, and with a view
to its use as aforesaid by the defendant — that the defen*

FALL TERM 1841. 131

dant» shortly after the commencement of the wall, and fio^LAiro, *•.
when it bad only been raised above the surface, knew Hahiia.
and consented to its being built equally on his lot, as a
division wall between the plaintiffs' house and his, to be
used by him as such — that he did immediately proceed
to use the said will as a division wall and as a wall of his
house, by building up to it and having his joists inserted
in it, and that to the extent that it stood upon his lot, it
was in fact his wall, erected for his use, and actually used
by him as a wall of his house, built simultaneously with
this wall and with the residue of the house of the plain,
tiffs; and it seems to us that from all these facts, a request
to bnild the wall as it was built, on the defendant's
ground, and a consequent liability and promise to contrib-
ute one half to the expense of the erection, might be im-
plied. And although other facts, leading to different con-
sequences, and repelling the defendant's liability, might
also be, and perhaps would have been, deduced from the
evidence, yet if, as we suppose to be the case, the jury
might, by rational deduction from the evidence, have
found such facts as would establish the defendant's liabil-
ity; it was their province to decide upon the facts and
the inferences which they authorized, and the Court erred
in withdrawing this decision from them as it did, by its
peremptory instruction.

We are also of opinion, that a usage in the city of Lou- it » competent
isrille to the effect, that when persons owning adjoining tom inVcUy^ior
lots, build simultaneously adjoining houses, having a Ser^dves *^*of
common wall, built equally on each lot, each of the *^i°"*l°p. ^l^»

* ^ m bmldinr, to

builders is held bound to contribute to the cost of the pay for half such
common wall, would, if known to the parties, tend to not to^Bhow^an
prove that the plaintiffs looked to a contribution by the fo^/JSfhwaii,ES
defendant when they placed the wall partly on his lot, as conducing to
and that the defendant understood that such contribution sumpsUtodoio'
was expected when he consented to the wall's being so
built, and proceeded to build his house simultaneously,
using said wall as one of its walls. Evidence of such a
usage would, therefore, be admissible in this case, pro-
vided that the usage were shown to be uniform and of
sufficient continuance, that is not momentary only — and

132

BiBHOPs el ah
M'Nart 6tal

BEN. MONROE'S REPORTS.

that from its notoriety or other circumstances, a knowl-
edge of it were brought home to the defendant.

For the error of instructing the jury to find for the de-
fendant, the judgment is reversed and the cause remand,
ed for a new trial, on principles consistent with this
opinion.

Pirtle for plaintiffs ; Guthrie for defendant.

CoVEKAWT.

Case 56.

November 1.
The case stated.

Bishops et al. vs M'Nary et dl.

ApPBilL FHOM THB BaTH CiRCUlT.

Notice, Partnership. NovrSuiU

Judos Ewino delivered the Opinion of the CouxL

This case was formerly before this Court, on the appeal
of the now appellees. The history of the case and prin-
ciples settled by the Court, on the facts then exhibited,
will be found reported in 8 Dana, 150.

Upon the return of the cause to the Circuit Court, the
plaintiffs amended their declaration, adding other counts,^
in one of which a general averment was made of reason,
able and legal notice to the defendants, of the time aiMl
place of weighing and delivering the hogs, and in another
an averment that they had caused the defendant. Walker^
to be duly and properly notified on the 2d of October,
1837, that the plaintiffs would commence weighing and
delivering the said hogs at Amus Hart's (describing the
place,) on Monday the 16th day of October, 1837, and
after weighing and delivering so many of the said hogs
as should be weighed at the said Hart's, that the plaintiffs
would forthwith go from thence to Abner Herd's, and
weigh and deliver the residue of the said hogs in the cov-
enant mentioned, and that Hart's and Hord's were both
within ten miles of Elizaville|; and that the time for
weighing and delivering all of the said hogs at Hart's and
Hord's, commencing on the 16th October, 1837, was am-
ply suflScient, before the latest convenient hour of the day,
on the 20th of the same month. The defendants filed
two pleas, in one of which they deny notice to Walker,

FALL TERM 1841. 133

on the 2d of October, as averred in the declaration, and in Bmtopi a ai,
the other they deny that the plaintiffs had 600 hogs at two m*Nabt etal
pens within ten miles of Elizaville, or that they weighed
or set them apart, of the discription mentioned in the
covenant, or that the defendants refused to receive them.

Afler the plaintiffs' counsel had adduced all their evi-
dence, the Court, on the motion of the counsel for the
defendants, instructed the jury as in case of a non-suit,
and the plaintiffs have appealed to this Court. The evi-
dence is objected to by the appellees, as insufficient to
support the action^ on the following grounds:

1st. That the notice to Walker was in parol, and not
in writing.

2d. That it was given only to one of the joint con-
tractors.

3d. That it was proven by Wallingford, who was in-
terested on the side of the plaintiffs.

We think that neither of these objections are sustain-
able.

1. We know of no rule which requires that notice of the Notice to one of
lime and place when one of the contracting parties will {ractij"*p8rSei*
pioceed to perform the contract on his part, shall be in °f ^^ ^?»« »n^

. . fii L X 1. • J • L 1 1 P**^* "When and

writing. Ail that can be required is that the other con- where property
tracting party shall be apprised, in due time, and with LTal^cieni*'®^'
snch reasonable certainty of the time and place of per-
formance, as will enable him, if he, in good faith, in-
tends a compliance with the terms of his contract, to
attend at the time and place designated. And this may
be effected by a parol communication as well as by wri-
ting.

2. We also think that notice to one of two joint con- Notice, in writ-
tracting parties, is sufficient. But if this were doubted, S*iS*kdi^I
the jury may have inferred from the letter written by ■*^^®*
M'Nary to one of the plaintiffs, that he had been appris-
ed by Walker, his co-contractor, or some other, of the

times and places at which the plaintiffs intended to go on
to fulfil their contract.

3. If it were conceded that Wallingford was interested That the notice
on the side of the plaintiffs, to the extent of the costs, ^"mpJtenJ^iu
iirom the payment of which he had not been released by fom'the^'^ro^^d
the plaintiffs, and was, therefore, an incompetent wit- ^^ ^ non-ftoit; a

134

BEN. MONROE'S REPORTS,

COLLUIl

va
TsscityofLov-

UTILLB.

motion to ex-
clude tlie evi-
dence of such
vitnesSy shall be
first made and
decided, that the

{laity may le-.
ease the witness
or proTe the fact
by other testimo-
ny.

ness; yet the instruction should not have been given on
that ground.

An instruction to find as in case of a non-suit, is in
the nature of a demurrer to the evidence which admits
it, concedes its truth and is predicated upon it; and it
matters not whether it be given by an interested or disin-
terested witness. To allow the motion to prevail, by a
virtual exclusion or rejection of the evidence by the
Jhdge, on the ground of the interest of the witness, would
be calculated, in practice, to take the plainti^s by sur-
prise, and do him manifest injustice. If his evidence
were rejected by a distinct motion, made to that end, the
objection to the witness might be removed by release, or
bis evidence supplied by other witnesses, which he would
be deprived of the privilege of ojQfering, if the motion
to instruct as in case of a non-suit, were to prevail on the
ground contended for.

Judgment reversed and cause remanded, that a new
trial may be granted.

Hord and Apperson toi SLppellnnis; Owsley for appeL
lees.

Assumpsit.
Case 67.

Collins v$ The City of Louisville.

Error from irns Jeffbrsoit Circuit.
Corporation of LouisvUle. Power of taxation,

JirsGB Mabshall deliyered the Opinion of the Court

ihvmUr 1. This wiit of error is prosecuted by Collins to reverse

a judgment of the Jefferson Circuit Court, for $268 09i
Theeaie st&ted. rendered against him, in an action of assumpsit brought

by the City of Louisville, upon the allegation that he
was indebted to the plaintiff in a large sum for measur-
ing 51,460 bushels of stone coal, at a half cent per bush-
el, and 4,318 bushels, at a quarter of a cent per bushel ;
which measurement is averred to have been made under
the ordinances of the Mayor and Council of the city, by
the measurer duly appointed, &c. and at the defendant's
request. The law and the facts were submitted to the
CkMirt, to be determined without a jury, and it appears

FALL TERM 1841. I35

that the coal was brought to Louisville for sale from Fenn- CoLuvt

sylvania, of which State Collins was a citizen, in a boat, ThbciitopLov-

on which he paid wharfage fees to the city — that it was mvilh.

measured, and the quantity ascertained by the city meas- in ^tho^ ciSuit

Brer of coal, lime and wood, regularly appointed, and in ^^^^

obedience to the ordinances of the Mayor and Council,

bat not at the request of Collins; and it may be inferred

that the larger quantity above stated, was sold at the

wharf and from the boat of Collins, by retail, and the

smaller quantity not being so sold, was landed within the

city or sold in the boat, the former being measured by

loading it in carts, the capacity of which had been pre.

vioQsly ascertained and stamped upon them by the meas-

uier, and the latter by measuring the bulk in the boat or

<m the wharf.

The oidinances of the city, relating to the sale and
measorement of coal, were submitted in evidence, from Theordinaneea
which it appears that the seller of coal, brought to the ^^ ^* ^^^'
city by water, is charged a half cent per bushel upon
coal sold and measured in the mode first above stated,
and a quarter of a cent upon coal sold and measured in

the latter mode, or landed or unladen within the city

tiuit the measurer is bound, at shoit intervals, to render
an account of the coal measured to the city government;
to pay over to the treasury the nett proceeds of the charge,
after deducting the expenses in the employment of as*
liatants, &c. and is to receive, as bis compensation, one
fourth of the sum received for measuring. The ordinan-
ce provide for the measuring of carts by the city meas- '
ver, and the stamping of said measurement and the
contents tfaereon, at the expense of the owner. It is
declared to be unlawful for any person to haul lime or
wal from the wharf without first having his cart or carts
measured, and a penalty is denounced for a violation of
4iB inhibition, &c. And an ordinance of 1832, still in
fcrce, ordains that the seller of lime and coal, sold at the
ttiy wharf, shall pay a tax on the same of one half cent
Ibreach bushel so sold, which would seem to include that
«>ld in the boat by wholesale, as well as on that sold by re-
M. Upon these facts it is contended, in opposition to the
<^im of the city and to the judgment rendered therefor.

136 BEN. MONROE'S REPORTS.

CoLLiKi i^i That this burthen laid upon coal, instead of being in
' Thb CITY OF Low- good faith a charge for measuring, or a mode of enforcing

the right of measuring the article, as from some of the

ordinances it would seem to be, is in truth a specific
tax upon coal brought to the city for sale, imposed for
the purpose of raising revenue therefrom. 2d. That the
Legislature of Kentucky has never conferred, or attempt-
ed to confer upon the Mayor and Council of Louisville
the power to lay such a tax, and that under their char-
ter, and the laws relating to the city, they have no such
power. And 3d. That if the Legislature had underta-
ken to confer such power, the exercise of it, in the pre-
sent case, by the imposition of a tax upon coal imported
from Pennsylvania, by a citizen of that State, is in viola-
tion of that clause of the Constitution of the United
States which prohibits any State from laying any imposts
or duties on imports, except such as may be absolutely
necessary for executing its inspection laws — and also, of
that which confers upon Congress the power to regulate
commerce .between the States. We shall proceed to
consider these propositions, so far as may be necessary
to a decision of this case.
Trastees ot Lou- 1- By the 6th section of an act of 1825, (Ses. Ads,
iswue to appoint gj \ ^jj^ trustees of the town of Louisville are empower-

meaaureis oi ' "^ ^ »

coal, lime and ed, among Other things, to appoint measurers of lime and
power after- coal and wood brought to the town for market, by land
on'^SiaycTr^^and ^^ water, and sold therein, and to aflSx a reasonable al-
CounciL lowance to such measurer, and to make such regulations

as may be necessary and proper for carrying the same
into effect, and to inflict penalties for a breach of such
regulations. The same power was afterwards conferred
on the Mayor and Council of the city of Louisville. Con-
ceding that the power thus conferred, includes the power
of exacting the reasonable compensation of the meas-
urer, and all other expenses properly attendant on the
measurement, from the seller or buyer of the coal, and
. of thus, in effect, throwing this burthen upon the coal
itself, in its price to the consumer, the question arises,
whether the burthen actually imposed by the ordinances
which have been referred to, can be fairly considered as
being exacted with a view and confined to the purpose

FALL TERM 1841. 137

of raising the sum necessary to defray the reasonable ex- Collhw

penses of the measurement, or whether it must be regard- ThbcityofLov-

ed as being levied for the purpose substantially of bring- — "viu^g-
ing revenue to the city.

Extending to the city authorities and their ordinances. The Mayor and

the utmost liberality, both in the construction of Ian- pooncii of lou-

. •' . isviUe haye no

guage and of motives, it seems to us too plain to admit power to levy »
or doubt, upon the ordinances and facts stated, that this landed ^^at' the
is a lax upon coal not merely for the purpose of defraying nu^^'purooSes^
the expenses of its measurement, but principally and ^^^ o"V ■<> f"

' . , *^ * •' aa necesaary to

sabstantially for the purpose of raising revenue from that defray charges of
article, which, after paying the expenses of measurement, mJaVurement,
shall go into the general fund of the city. None of the ^^^ squired,
ordinances contain the slightest evidence that, in fixing
the sum to be paid upon each bushel of coal measured
or sold, any reference whatever was had to the actual or
probable expense of measurement. The earlier ordi-
nances authorize the measurer to charge so much for
measuring, but he was required to pay the proceeds into
the treasury, and was allowed first, a fixed salary, then
a third, and now a fourth of the amount received. And
as the requisition that all the vehicles in which coal is
conveyed from the wharf shall be first measured and cer-
tified by stamp, affords a reasonable guarantee to the
citizens receiving it as to the quantity received ; and as
none of the ordinances exhibited in this case require
from the measurer any other evidence of quantity to
be furnished to individuals, than that which is furnished
by his stamp or certificate on the vehicle in which it is
delivered, it would seem that the principal duty of the
measuter is not to ascertain and certify to individual pur-
chasers the quantities conveyed to them respectively,
but to ascertain merely the aggregate amount sold, with
a view to the amount of money to be charged and col-
lected. In perfect coincidence with this inference, the
last ordinance, above cited, levies the tax eo nomine on
each bushel of coal sold at the wharf, and the measurer
is the officer who, by his own observation, or the infor-
mation of the carters or others, ascertains the number
of bushels on which the tax is charged, and proceeds to
Vol. IL 18

138 BEN. MONROE'S REPORTS.

Collins collect it, retaining only oue foarth as his own compen-

TbeoityopLoo- sation.

"^^''"' It may be, that in the fair execution of this power of

requiring coal vended in the city to be measured tinder
public authority and supervision, the Mayor and Council
would not be bound down merely to fixing a fair compen-
sation for the trouble and expense of measurement, and
enforcing its payment to the measurer in each case:
but whether they should be thus restricted, or might
properly require the charge for measurement to be paid
into the city treasury and there settle and pay the expen-
ses, it is entirely obvious, that when the sum charged
and paid into the treasury, nominally as the price of meas-
uring, exceeds the actual cost of measurement, including
the fair compensation of the measurer, permanently and
certainly in the ratio of three fourths, or two thirds, or
one half, or in any other sensible and significant pro-
portion, such sum is not in truth a mere charge for meas-
uring, but is, to the extent of the excess at least, a tax
for general purposes ; and as the charge for measuring
s coal sold from the boat or in the boat, seems to be incur-
red for the sole purpose of ascertaining and collecting
the tax, the whole amount should be regarded as a tax
for general purposes, burthened only with the expense
of assessment and collection at a very high rate. It is
to be remarked too, that the tax of half a cent per bushel
oh coal, is from three to five per cent, upon the value of
the article, when the general taxes assessed upon prop-
erty in the city are limited by law to one half of one per
cent, upon the value. In support of the conclusion, that
this charge for measuring coal is, in truth, an exorbitant
specific tax levied for general purposes, it is scarcely ne-
cessary to refer again to the ordinance which demands its
payment as a tax, for it is no more of a tax since it has
been so denominated than before, and the ordinance only
shows that its true character, as a tax, was understood by
the Mayor and Council.

We proceed then to enquire by what authority the
Mayor and Council of Louisville have undertaken to levy
this extraordinary tax; they certainly do not derive it
from the grant or power to appoint a measurer of coal

FALL TERM 1841. 139

sold in the city, to provide for him a reasonable compen- Colums
sation, and to make the necessary and proper regulations The city of Lov-

for carrying these powers into eflfect. These powers were ^^'"^''

not given for the purpose of enabling the city to raise a
revenue from coal, but to enable it to afford to purcha-
sers and consumers of the article within the city, the
means of ascertaining the true quantity purchased and
delivered, and to protect them from imposition and ex-
tortion. The authority to measure all coal vended in
the city is not expressly given, and it is only by a liberal
construction of the power in reference to its objects, that
it authorizes the city to compel the measurement of any
coal without the request of either the buyer or the seller.
Mor is the authority expressly given to raise the compen.
sation to the measurer by a charge on the coal measured ;
but it may result from the power to make necessary and
proper regulations, and from the propriety of requiring
those for whom the service is performed, to pay for it.
Conceding the power to compel the measurement of all
coal vended in the city, and to require the vendor to pay
for the measurement, still the authority for raising mo-
ney under this grant is limited by the object for which it
is to be raised, that is, by the reasonable compensation to
be paid for the measurement. If it be conceded that
because the city may appoint a measurer of coal vended
in the city, and provide for his payment, she may re-
quiie all coal so vended to be measured, and charge the
vendor with a just compensation for the measurement,
it by no means follows, and cannot be admitted, that
under color of exacting this compensation from the ven-
dor, she may tax him on his coal adlihitum.

It was said in argument by the counsel for Collins, The general pow-
that the Mayor and Council of Louisville claim the pow- Louifvm^^ by
er of layine; the charge or tax on coal, which is now chaiter does not

II n 11 ^it'i- 1 confer on the

sought to be enforced, under no other legislative act but Mayor and Coun-
that which has just been considered, and w^hich we are fay a^«peci/ic tax
decidedly of opinion does not confer it. Nor has any ihgTendorUierc-
other act been pointed out on the part of the city, as spe- of, for rcvennc
ciiically granting the power. But we have been referred p^'P°*®*'
to the general powers of taxation, granted to the city in
the original and amended chaiter, as being sufficiently

140 BEN. MONROE'S REPORTS.

CoLLiin comprehensive to embrace the exercise of pgwer at-
TucittofLou- tempted in thi3 instance. Upon looking into the char-
— !?!Jiif: — ters, however, we are satisfied that they do not, by any

fair construction, confer, or profess to confer, upon the
Mayor and Council the power of laying a specific tax,
or duty for revenue, upon coal or upon the vendor of
coal, for each bushel sold at the wharf.

In the first place, the general power of taxation author,
ized by the original and amendatory acts of incorpora-
tion, with certain exceptions therein specified, require
annual assessments, and the taxes subject to the excep-
tions stated, are to be laid upon the ad valorem princi-
ple; and coal sold from a boat at the wharf is not among
the exceptions, or if it be, the mode provided for taxing
the excepted articles is not pursued in this case.
A general grant 2nd. It may well be doubted whether the power grant-
or power to tax ^j ^q j^y and collect taxes on the real and personal es-

personai estate, ^ ^

does not em- tate, within the city, embraces coal brought to the city
&c. bought for wharf in a boat, to be sold there immediately, and for
LoSsiifie.— Not which wharfage fees are paid as long as the boat remains
is coal, &c. in at the wharf, and whether the coal can be considered as

a boat at the . , . , . ., . .

wharf subject to a part of the personal estate, wjthm the city, until it is
cept to Vay for either stored in the city for sale or distributed out among
admeasurement, ^fae inhabitants.

3d. Although stores of articles which are consumed
in the use, as fuel, food, &c. may properly be the sub-
jects of taxation, it is unusual either to tax such articles
in the hands of the consumer, or to tax each sale to the
consumer, and if such mode of taxation be allowable,
it should not be understood as being authorized by gen-
eral words, confering power to tax personal estate.

4th. If a boat load of coal, lying at the wharf, should
be regarded as a store within the city, subject to taxa-
tion under the charter, it should either be taxed accord,
ing to the value of the property, at a rate not exceeding
fifty cents on the hundred dollars, which is one half of
one per cent, or it must be classed according to the clas-
sification of stores authorized by the charter, and taxed
within the limit prescribed for its class.

6th, Although the charter confers the power of taxing
certain occupations or transactions, it does not conlei

FALL TERM 184L 141

the general power of taxing sales, nor of taxing the oc- Coluhs
capation of selling, except by authorizing stores to be TnsciTYopLocr.

classed and taxed; nor does it confer the particular pow- ^svillk^

er of taxing the sale of coal.

We are of opinion, therefore, that the Mayor and
Council of Louisville have no authority to levy a specific
tax upon coal, or upon the sale of coal, such as is at-
tempted to be enforced in this case, except so far as it
can derive such authority from the provisions of the act
of 1825, above referred to> which are re-adopted in the
charter of the city, and that although that act might au-
thorize a small charge, which would, in effect, be a spe-
cific tax or duty, for the specific purpose of paying for
the measurement of the coal; yet as it does not appear
what portion of the charge or tax would be a fair com-
pensation for the measurement made, and as, moreover,
il does not appear that any measurement was made by
the measurer, for which either he or the city deserve
compensation; and as, in fine, any measurement which
may have been made by the measurer, was made, so far
as appears, for the exclusive benefit of the city, in order
to ascertain the number of bushels subject to the tax or
charge, we are of opinion that the plaintiff made out no
ground for the recovery of any part of the demand sued
for. The city cannot, by making an unauthorized de-
mand of money from the defendant, entitle herself to
recover the amount demanded; nor can she, by employ-
ing a measurer to measure his coal, for the purpose of
ascertaining and enforcing such a demand, place him
under any obligation to pay to either of them the cost
of the measurement.

Having come to this conclusion, upon the two first
propositions, which were stated for consideration, it is
unnecessary, and would be improper, to enter upon the
discussion of the third, which is of too serious and im-
portant a character to be taken up by anticipation. We
may remark, however, without going beydnd the limits
of this case, that so far as the measurement, by public
authority, of coal or other articles, introduced into the
State for sale and consumption, might fairly be deemed
essential for protecting purchasers from imposition, with

142

BEN. MONROE'S REPORTS.

Logan

LOOAK.'

regard to quantity, we should be inclined to think, that
the right of causing such measurement to be made, and
of providing for the expenses, by a slight charge or duty
on the article measured, would stand substantially on the
same ground, under the constitution of the United States,
as the right of inspecting articles of another description,
for the purpose of ascertaining the quality, and prevent-
ing fraud and imposition in that respect. It would seem,
therefore, that the charge or duty upon articles imported
from another State, should, under the Constitution of
the United States, be no greater than would be abso-
lutely necessary to effectuate the measurement and its
legitimate objects.

Wherefore, the judgment is reversed and the cause is
remanded for a new trial.

Grigsby and H. Marshall for plaintiff; Owsley for de-
fendant.

Chancbrt.
Cast 58.

November 1.
The cof e stated.

Logan t;^ Logan.

Appeal from the Fayette Circuit,
Divorce, Alimony. Abandonmenl.

Chief Jasncs Bobsrtson delivered the Opinion of the Ck>urt

On the dth of August, 1834, Archibald Logan and
Eleanor Robb, each then nearly 70 years of age, inter-
married at Lexington, after mutually signing a contract in
writing, whereby they agreed that neither of them should
claim, by survivorship or otherwise, any right to the pro-
perty of the other. Each of them had children by a for-
mer marriage, and had maintained a good and rather en-
viable reputation for personal honor, domestic virtues,
and christian graces — ^he being a member of the second
and she of the first Presbyterian church of the said city.

As might have been expected, they lived together in
apparent harmony and happiness until early in February,
1838, when, for the first time, so far as we are informed »
their domestic peace was disturbed by intemperate com-
plaints and upbraidings upon her part for alleged griev-

FALL TERM 1841. 143

ances, neither satisfactorily established nor explained by Looan
proof; and by responsive conduct upon his part, some- Looan.
limes neither conciliatory nor the most prudent, and which
tended rather to exasperate than to soothe the deeply mov-
ed feelings of his discontented and irritated wife. Their
discord, soon becoming clamorous, attracted public ob-
servation which, instead of stifling, seemed only to in-
flame her heated passions. The intervention of friends,
in and out of the church, invoked by Mr, Logan osten-
sibly for pacification, having failed and only added fuel
to the flame, the prospect of cordial reconciliation be-
came almost hopeless ; and the irritability and wretch-
edness of the parties seemed so fixed and extreme as to
indicate either the existence of some untold and deep-
rooted grief or a destitution of that love and confidence
which alone can happily cement the conjugal union, and
without which wedlock is a curse.

At last Mr, Logan, expressing the conviction that a
dissolution was inevitable, and declaring that he was
"sinking fast" — rented his dwelling and left home, as he
then announced and still admits, "with a view to a per-
nuoitni separation,'* He directed his tenant, however,
"to treat Mrs. Logan weW and permit her to • 'remain as ,
hng as she chose,** On the next day she also left the
hoQse and has never since returned. During the same
week, bnt after her departure, he returned and has
since re-occupied the house alone. But, in less than ten
days after his return, she sued him in chancery for ali-
mony, charging him with enormous cruelty, aggravated
by abandonment — in answering which he denied every al-
legation of improper conduct on his part, and averred that
she had, by her own unprovoked misconduct, imposed on
him the necessity of leaving her, as the only alternative
consistent with their honor and happiness, the decorum
of their neighborhood, and the interests of the church.

After the suit had been pending more than a year the
parties agreed on the record that "the separation, as ex-
tinted in the pleadings And proof " still continued, and
that the complainant should, on the final hearing, have
the fall benefit of that fact.

144 BEN. MONROE'S REPORTS.

LoGAK The Circuit Court decreed to Mrs. Logan, for alimony,

LoGAK. an annuity of S500. He has appealed — insisting that

~~ ' she is entitled to no decree against him — and she assigns

cross errors — claiming a larger allowance than that which
the Circuit Judge made to her.

In revising the decree we shall abstain, as far as pos-
sible, from any allusion to disparaging facts character-
izing a domestic tragedy so inscrutable in its origin, so
disastrous in its character, and so lamentable in its re-
sults as that which the parties have unfortunately exposed
on the record before us and on which our legal judgment
is now required.

Whatever may have been the undisclosed origin or the
secret history of this mysterious feud, the record, upon
the face of which alone we must decide, does not sustain
Mrs. Logan's accusatory allegations. And we are not
allowed to doubt that she was not entitled to any relief,
unless she had a right to it in consequence merely of
abandonment.
Until the sutuie . Independently of the enactment of 1800, simple aban-
dLmeni abne donment, however protracted, would not authorize a de-
was not a sufii- creo for a divorce a mensa el ihoro and for alimony. Ac-

ciGnl cause for a

divorce a mensa cording to the ecclesiastical or common law of England,
alimony.*"^ ^^^ either adultery or savitia — that is, cruelty, endangering

personal security — authorized such a decree; but mere
abandonment did not. It may be admitted, as intimated
in Butler vs Butler, (4 Litt. 205,) that a husband who
abandons his wife without cause, and refuses to either live
with her or contribute to her maintenance, may be com-
pelled by a court of equity to fulfil his legal and moral obli-
gations in that respect. But Mrs. Logan's bill and proof
do not bring the case within the range of the principle of
that equity. Her bill was filed with no view to a decree
for mere necessaries. It neither alleged that her husband
had ever refused to pay for her necessary comforts nor
suggested that he would not permit her to return to his
house, or that she was even willing to do so, nor that she
had ever proposed or desired a restitution of all conjugal
rights. A suit for restitution of conjugal rights was the
appropriate remedy in England for securing to an injured
and deserted wife her rightful maintenance without being

FALL TERM 1841. 145

divorced a mensa. And unless she sought and was en- Losan
titled to restitution she could not obtain a decree for sep- LogAy.
arate maintenance — which was, as it always should be,
only alternative and ultimate relief, and (upon general
principles of equity and policy) never should be decreed to
a wife who had neither sought nor desired a restitution of
conJQgal rights, and has no legal cause for a decree for
seperatipn.

Mrs, Logan's right to a decree for maintenance, as now Th? ground! t©-
sought by her, must, therefore, depend on the legislative piainant's bui
actoflSOO, (iS/fl/. Law?, 121,) which authorises a decree ""^whiirthS
for alimony after an abandonment by the husband /or one piJlS^nt ^ i,^]^
ytar. And her right to a decree under that enactment is suted.
resisted on five grounds — 1st, That there was no ''aban-
donmenf* in the available and statutory sense. 2d, That
if there was such abandonment, it was justified by legal
cause. 3d, That the bill, having been filed prematurely,
ought, therefore, to have been dismissed. 4th, That she
is estopped by the anti-nuptial contract— and 5th, That
her own misconduct should bar her. But, after careful
consideration, we have come to the conclusion that neither
of these objections should prevail.

1. Mr. Logan's answer alone is sufficient to show that Husband leaving
he had rented and left his house as one mode of effecting Bodw*^^^'°^5ie
a permanent seperation from Mrs. Logan, and that he intention to re-
left her also with the fixed purpose of never again cohab- not i^h^ ^rh
iting with her, and without making or offering to make ritumkg^liaiJ
any certain provision for her comfortable maintenance out on her leaving i,t,

^ ^ 18 "abandon-

of his estate. As soon as she had also left the house he ment," statutory
returned, and has never since intimated that he desired or
would permit her to return to, and again live with him as
his wife; thereby more conclusively evincing the purpose
of deserting her and leaving her to her own solitary re-
sources. This was "abandonment,** statutory as well as
actual. And his subsequent return to his desolate, but
perhs^s more quiet home, was no return to his wife, nor
invitation to her to follow his example, but was rather a
command to stay where his acts of desertion had virtu-
ally compelled her to go. She was bound to presume
that he did not intend that she should go back to him and

that an attempt to do so would drive him off again-
Vol IL 19

146 BEN. MONROE'S REPORTS.

Lo«Air . The expressive and persevering course thus pursued by

LoTan. Mr. Logan, is fairly susceptible of 'no other consistent
* interpretation than that of determined and continued
abandonment,
h th ^* "^^^ although Mr. Logan may have acted consci-
conduct of the entiously, under a firm conviction that the course he adopt-
buien?*Va"ei- ^^ ^^^ accordant with his wife's desire and necessary for
SiMKeeabio^^^to ^^^ ^"^^ health and tranquility, and even that there could
thohuabaiid, yet be uo hope of an amelioration of her feelings and con-
lirabaSdonmeqt duct towards him — yet, nevertheless, unless in her ex-
be eo'viofenras ^i^^d moments, shte had so acted towards him as to jeop-
to endanger hia ard his personal security, the code of law which rules in

this/orMm does not justify his abandoning his home and
his wife "with a view to a permanent separation." Mar-
riage, being more fundamental and important than any of
the social relations, is controlled, as to its obligations, by
a peculiar policy deemed essential to the permanent wel-
fare of the whole social community. Being a contract
for life, indissoluble by the consent of the parties merely,
it should not be dissolved by the sovereign will for any
other causes than such as are subversive of its essential
ends or inconsistent with the general welfare. And it is
certainly important to the general stability . and harmony
of that relation, that the parties should know, that, hav-
ing taken each other with all their infirmities, and vowed
reciprocal fidelity and forbearance for life, it is their in-
terest, as well as their duty, to "bear and forbear*' as far
as the resources of love, phylosophy, and religion can
enable them. And this, to an essential, if not to the
whole extent, is the law of the land — which will not
countenance or permit separation from bed and board for
incompatibility or austerity of temper,- alienation of affec-
tion, domestic discord, or reproachful words, however
vulgar, or violent, or undeserved, but requires, by the
strongest of all temporal sanctions, that all difiiculties re-
sulting from such avoidable causes shall be either tdjust-
ed in the domestic /(jrwm or borne with patience, as con-
tingent incidents of the union the parties had mutually
promised to cement by love and adorn by grace for life.
Parties so unfortunately united in the most sacred and
endearing of all earthly relations, mus^ submit to the

FALL TERM 1841. 147

misfortune as one of the consequences of an injudicious Liyojux
choice. They must strive to conciliate by kindness and Looam.
forbearance — "must subdue by decent resistance or pru-
"deot conciliation ; and if this cannot be done, both
"most suffer in silence." This is our law, human and
divine; "and if it be complained that, by this inactivity
''of the Courts, much injustice may be suffered and much
"misery produced, the answer is, that Courts of Justice
"do not pretend to furnish cures for all the miseries of
"life. They cannot make men virtuous, and, as the hap-
"piness of the world depends on its virtue, there may be
"much unhappiness in it which human laws cannot un-
"dertake to remove."

The law prudently determines that even the most of-
fensive ebullitions of passion, in words or acts, which
neither injure the person nor endanger personal security,
will not authorize a divorce a mensa d thoro. There must
hesevUia to justify such a seperation. Less severity
than this will not authorize a Court in this State to "put
asander" those whom * ' God hath joined together." And
were it otherwise, domestic quarrels might mischievously
engross all the services of Courts of Justice: Evans vs
Evans, 1 Hagg. Cons. R. 39-4Q; Harris \s Harris, 2
lb. 154; Waring vs Wanng, 2PhUl. 132.
Had Mr, Logan then resorted to the law for relief, in- — AndunieM the

/» 1 conduct 06 such

stead of attempting to relieve himself by deserting his aBtojaatifjradi-

wife, his petition would have been dismissed, because jli° u^ ^Ibandou!

Ibe scolding of which he complains was not "crudly/' "'•'^^

in the legal sense, and would not, therefore, have justified

a separation. And it is clear that acts or words which

wonld not authorize a separation by decree, could not

furnish a legal excuse for voluntary abandonment. The

same principle of policy and rule of law apply with equal

effect to the personal and the judicial remedy.

In judgment of law, therefore, his abandonment was
without sufficient cause; and, of course, his wife's right
to conjugal restitution or to alimony, cannot be barred by
conduct which did not furnish him with legal cause for
separation: 1 Hagg, Cons. R. 361; lb. 456; Holmes vs
Holmes, 2 Lee. 116: Bartlee vs Bartlee, 1 Adams, 305.

148 BEN. MONROE'S REPORTS.

LooAN When he left his home, therefore, that decisive step

LooAN. was miscounselled, however pure may have been his pur-

pose or cogent his reason in the forum of his conscience

or his ethics,

Thoui|h an oiiri- 3. The fact agreed on the record, at the hearing of this

mony" du cause, had been alleged in an amended bill filed after the

▼orce may be abandonment had been continued for a year, and had not

pTematuEely fil-

ed, yet if been denied. The original bill did not suggest the aban-
Sony occurs be- donment as a ground of the relief sought therein, but
w'dt^e fticte^are ^"'^ ^^ ^^ aggravation of other grounds which were not
Betoutin amend, established, and which, had they been sustained, would

ed biU, apd not , , - rn • .

answered, the have been insufficient.

Se^^appropnate The Style of that bill was exasperating and its tone ei-

decree for com- tremely denunciatory. When it was filed there was no

plamant. ■' ^

legal ground for such a suit. It does not intimate either
that Mrs. Logan was willing to return to the embraces of
her husband, or that he would reject her. Had she not
thus imprudently denounced and attempted to degrade
him, they might, perhaps, have been now cohabiting in
renewed peace and harmony, as creditable to each of
them as their obstinate and strange disruption may now
and hereafter, be injurious to the character and happiness
of both.

Do these considerations present sufficient ground for
dismissing her bill? We think not.

The agreement on record, and the failure to answer the
amended bill, virtually admitted continued abandonment
for one year. Mr. Logan, at that time, manifested no
change of purpose. Had he then made a satisfactory
offer of reconciliation and it had been rejected without
sufficient cause, the bill ought to have been instantly dis-
missed. Had she made the like offer and it had been
improperly rejected, she might have been entitled to one
third of the annual profits of his estate. But as neither
of them made any such overture, we must consider the
case as one of admitted abandonment for a year. And
though her equity is impaired by her premature bill, it
should not be thereby destroyed or postponed. If, be-
cause it might be possible that, by filing it, she had pre-
vented a reconciliation, this Court ought to direct a dis-
mission without prejudice, as urged in argument— the

FALL TERM 1841. 149

same reason might apply, with equal effect to a new bill ; Looan
for an amended bill, filed more than a year after the first Looait.
act of abandonment, could have placed Mr, Logan in "^

no worse condition as to an available defence, than that
in which an original bill, thereafter filed, Mrould have
found him.

We are, therefore, disposed to concur with our prede-
cessors, who, in the case of Butler vs Butler, supra, in-
timated the opinion that, tho.ugh a bill shall have been
filed prematurely for alimony, an amendment after legal
cause existed, might be availing. And there can be no
doubt that the denunciations in Mrs. Logan's bill con-
stituted no legal excuse for the continued abandonment.

4. By the anti-nuptial contract, which, in our opinion, An anii-nuptial
is neither void nor voidable, upon the facts as now exhib- wMc'h *cach pa^
ited, each party renounced all right to the property of the jLh*°tothe' ro^
other, which might otherwise have resulted, by operation pe'ty of the
of law, from their marriage. It might be as unjust, |is it would accrue br
is unreasonable, to infer that the parties contemplated SSon ^^Se^^mw-
aud intended to provide for a separation. The contract "*^®» preaenta

*• , * no bar to a de-

applies only to marital rights. It did not absolve the cree for alimony,
husband from his legal obligation to maintain his wife being^made o"l
during cohabitation — nor, for the same reason, can it ex-. J*^® thereby^ a^
onerate him from contributing to her maintenance after "ohed from his
deserting her, unless her own estate be amply sufficient, to maintain hia

That agreement, therefore, may present no insuperable ^^ ®"
barrier to decreeing alimony.

5. However strongly Mr. Logan may have been pro-
▼oked to the course he adopted, in judgment of law, his
abandonment was without sufficient cause, and Mrs,
Logan is still his wife. He must, therefore, be under a
legal obligation to maintain her, if her own separate
estate be insufficient.

Upon an investigation as to "faculties,'* his income
may be estimated at about $2,500, and her's at $260. ,

TT J 11 1 • I •! • 1 • 1 in Bucn case the

Under all the circumstances, as exhibited m the re- allowance for

cord, we concur with the Circuit Judge in the opinion be^ni^'^go much

that Mr, Logan should not be required to contribute to ^ife^'^own*" «!

his wife's maintenance if her own means be ample, and Bou/cea, aa wiu

that, if he be liable to any contribution, the established decency and

principles of equity and of public policy will entitle her ST^epaiation'!*

150 BEN. MONROE'S REPORTS.

Lo»Ait to ouly so much, in addition to her own resources, as may
LooAH. be barely enough to maintain her, during separation* in
decency and comfort.

But here we meet the most vexatious difficulty which
we have had to encounter in this vexing case ; and, as to
the amount to be allowed, we have differed in opinion.

But we have finally agreed that Mr. Logan ought to
contribute something, and that $300 per annum is as
much as should be exacted from him at present. This is
apparently enough to supply any deficit that could proba«
biy occur in her own means applied, as we all think they
should be, by appropriating not only the income bat some
portion of the capital, so as not prematurely or greatly to
exhaust it. And therefore, the final conclusion is that an
annual contribution of an additional $300 by Mr. Logan
^ should prima facie, be deemed sufficient for securing the

comfortable and prudent maintenance of a solitary and
aged christian woman, accustomed to live in as respecta-
ble society as any in the Commonwealth,
la eases of de- • If hereafter, the Circuit Judge shall be satisfied that
ny, 'the Court f^his allowance is either inadequate or superfluous, be
S2efor''th^pS! •^^'^^' ^f course, modify it by enlargement, cmtailment.
po»« of ^jiS' jor suspension altogether, according to circumstances, re-
the allowance, t taiuiug, as he must, the control of the case for that pur*
asdrcumsto^es ij^g^^ ^^^ ^^ ^^^ benevolent purpose also, of keeping

SJenm'edow'oV^P®"^ the doorof ultimate reconciliation.
reconcUiation. And though it was not the lot of these venerable par-
ties to climb the hill of life together, yet, having united
their destinies on its declining steep there can be no
good reason why they may not totter down it hand in
hand, and sleep together at its base.
Decree reversed and the cause remanded.
Owsley, Turner, Robinson <f Johnson for appellant ;
Combs for appellee.

FALL TERM 1841, 151

Dudley vs Donaldson, &c, Chakcbry

Error to the Fleming Circctit. Case 58.

AUcLchtnent in Chancery.

JvDev MAsaiULL deliTered the Opioion of the ConrL JDecember 23.

The principal question presented in this record is, Question stated,
whether the first section of the act of February, 1837,
relative to proceedings ,against non-residents, &c. (Ses,
Ads, 103,) gives the remedy by attachment in chanqery,
against an absent defendant, in a case where the debt
sought to be enforced, falls due so short a time before the
commencement of the term of the Court which has in-
tervened during his absence, that though he had not been
absent from his usual residence, the ordinary legal pro-
cess could not have been served upon him in time for a
trial and judgment at that term. If this question must be
answered in the affirmative, then although the debt may
fall dne while the debtor is absent from the State, and
only a day or two before the commencement of a term of
the Conrt, yet if his absence continues until after that
term expires, his goods will be spbject to attachment
imder the statute, on the very day after the expiration of
the term. This is substantially the case now before us;
and upon a literal interpretation of the statate, the reme-
dy is applicable to such a case. For in the case soppos*
ed, the defendant has, in the language of the statute,
"been without the State for such a length of time, that
one term of the Circuit Court where he usually resides,
has intervened during his absence, and the service of the
ordinary ^process of law has been impracticable.'*

If the latter clause, referring to the impracticability of Attachment in
serving process had not been added, in describing the case ^afnA^^^ defend
to which the remedy is intended to apply, there could not JJJJ ^from" ^e
be a question but that the simple fact of absence from state during one
the State for such a length of time, that one term of the cult Court of Uia
Court, where the debtor usually resides, has intervened Jwcncet^thouSi
daring hia absence, was all that was required to authorize {^J J®^' -^^til^'
the proceeding. But as absence from the State during to haye obtained

152 BEN. MONROFS REPORTS.

Dudley the term would necessarily involve and carry with it the
Donaldson, ac. impracticability of serving ordinary process on the ab.
a judgment at sentee during that term, the addition of the subsequent
term. *^ *"*^ clause referring to the impracticability of serving process,

furnishes ground for conjecturing at least, that the Legis-
lature intended to require that the service of process
should appear to have been impracticable, not only du-
ring the term, but at some other period. For the imprac-
ticability of serving it during the term, being clearly and
necessarily implied in the fact of absence from the State
during the term; the subsequent clause would be wholly
unnecessary, and adds nothing to what is already requir-
ed by the previous clause, if it does not require something
more to appear than the impracticability of serving pro-
cess during the term. But to enable this Court to give
any particular efficacy to this subsequent clause, it is not
sufficient that the mere introduction of it should indicate
that something was intended by it more than had been
previously expressed. It is also necessary that there
should be something in the clause itself, or in other parts
of the statute, from which it might, with reasonable cer-
tainty, be inferred what particular requisite the Legisla-
ture intended to point out by these additional words; or
at least, there should be something in the subject itself,
or in the nature and object of the proceeding, clearly in-
dicating the Legislative intention.

But there is nothing in any part of the statute, which
enables us to come to any satisfactory conclusion on this
point. And although we may suppose that the objects
intended to be accomplished in providing this rigid reme-
dy might be attained, if the remedy should be allowed
on the ground of mere absence from the State, only where
it appeared that such absence had continued so long that
not only one term had intervened, but that the service of
process had been so obstructed by it as to prevent the
-creditor from getting his judgment at the term at which it
might otherwise have been obtained; yet there is nothing
in the statute or in the nature of the subject, or the pro-
ceeding, which absolutely precludes the idea that the Le-
gislature intended to give the remedy upon the single fact
of absence from the state during one entire term; and if

FALL TERM 1841.

15S

• i( were absolutely certain that the Legislature intended
that some other fact should appear, in order to authorize
the proceeding, there is nothing either in the statute or in
the subject* or (he proceeding, which indicates conclu-
mely or even with reasonable certainty, what additional
requisite was intended to be prescribed.

We cannot, upon the mere conjecture that the Legis.
Ifttnre would not have introduced the additional clause
referred to, unless it had intended to prescribe some addi-
tioBal requisite, add a particular requisition simply on
oor own authority and on our own sense of what might
be just and convenient, and thus withhold the remedy
from a case which comes up to the literal requisition of
the statute. And we feel constrained to give to the last
chose, though introduced by copulative words, as if it
added something to what was before required, the same
effect as if it were introduced with the words "so that,'*
which would indicate the intention of expressing merely
a consequence of that which had been already said, and
not of adding any thing new. We are of opinion, there-
fore, that the remedy by attachment is given by the stat-
ute in this case, and as the imperfection in the attach-
ment bond should not prevent a disposition of the goods
for the satisfaction of the debt, they being in the power
of the Court at the time of rendering the decree, and as
the appearance of the defendant dispensed with the bail
bond, we perceive no error which should be a ground of
reversal.

Wherefore, the decree is affirmed.

Herd for plaintiff; Payne (^ Waller for defendants.

Hasoim,

Dbthtub.
Case 59.

Waggener ts Hardin.

ApPBilL FROM THB AdAIB CiRCUlT.

Administrators. Distribution. Adverse possession.

'vMi Ewise delivered the Opinion of the Court. , Ptttmber 38.

Oliybr G. WAGGEfTER claiming two slaves, Ellen and The cue §iMMn
her child, under an allotment to him of the former, ae
Vol. II. 20

154 BEN. MONROE'S REPORTS.

WA«<wirEE one o( the distributees of John Waggener, deceased, be-
HAiDiir. fore the birth of the child, instituted an action of deti-
nue for them against Parker C. Hardin, who claimed
them as purchaser of the mother, at a sale made by the
Sheriff, under an execution which issued against Robert
Trabue, and by virtue of which, she had been levied oa
as the property of Trabue, the husband of one of the
distributees, after the asserted allotment to 0. G. Wag-
gener.

In the progress of the case, numerous instructions
were given to the jury at the instance of both parties,
and they found a verdict for the defendant, and from the
judgment rendered thereon, the plaintiff has appealed to

this Court.

The slave Ellen, with others, was the property of John
Waggener, dec'd. and as such came to the hands of 0.
G. Waggener, Richard Gregory and A. Garnett, who had
been duly appointed the administrators of the estate of
the decedent; and the evidence tends satisfactorily to
establish, that the two former, by the consent of all the
distributees except the infant son of P. C. Hardin, who
claimed as the representative of his deceased mother,
made a division of the slaves among the distributees, and
among others allotted Ellen to 0. G. Waggener, who
claimed, as well as his own share, also that of Robert
Trabue's, by virtue of a previous assignment from him;
that this decision and allotment was made on the 10th
of February, 1831, and the slaves so allotted, charged
to each distributee, on the account book kept by the
administrators with the heirs; that A. Garnett, the
other administrator, saw and examined the division the
next day, and made no objections to it; that 0. G-
Waggener started for his residence in Tennessee on the
morning of the 12th of February, leaving Ellen and the
other slaves allotted to him at the old place, to be
brought to hin^ or near his residence by a brother-in-law;
that on the night of the 12th Ellen was seized by the
Sheriff as the property of Robert Trabue, and taken off
and subsequently sold, and the defendant purchased her,
having previously made proclamation that he who pur-
chased would buy a law suit The evidence' introduced

FALL TERM 1841.

165

by the defexidant satisfaotorily tends to the conclusion,
that the administrators, after the division and seizure, and
lale by the Sheriff, owing to doubts entertained by them
as to the legality of the division, either cancelled the di-
vision or determined to treat it as a nullity, and so treating
it, iostitated suit in their names as administrators, against
the Sheriff, for the seizure and sale of Ellen, in which they
afterwards sufiered a nonsuit, and also filed a bill for a
division of the slaves, and answered a cross bill denying
the validity of the former division.

Two questions arise in this case which alone we deem
necessary to consider.

1st. Was it competent for the administrators to make
a division without the assent of the infant son of P. C.
Hardin, or his guardian?

2d. If it was competent for them to do so, and an ab-
solate division was madu, could they afterwards caned
the division by the assent of 0. . 6. Waggener, so as to
reinvest the legal title to Ellen, and right of action for
her in the administrators, whilst she was held by the
Sheriff or the defendant in adverse possession.

Ist We have no doubt that the legal title to slaves
vest in the administrators of a decedent, and that they
may make a division and vest the legal title in the dis-
tributees, and that too without the assent of one of
them, and that an allotment, so made, will entitle the
distribotee to maintain any form of action at law for the
slaves so allotted. The remedy of the distributee who
vas not a party to the division nor concurred in it, is in
equity, where he may make the administrators responsi-
ble for his share, or as they held the title in trust, which
they have passed to the distributees, he may go against
them for his share, as trustees holding the title, subject to
his equity, as one of the distributees. But his equitable
right can in no wise affect or change the character of the
Icgd title, which has passed by the assent of the admin-
istrators, to the distributees severally, to whom the allot-
ment has been made.

2d. It has been frequently settled by this Court, that
the sale or transfer of personal {property, in the adverse
possession of another, will vest no title in the purchaser:

WAMBNJitf

Habdiit.

Adminiitiaton
may make a Tal-
id allotment of
slaves to a part
of the diitiibu-
tees, in the ab-
sence of other
distribatees, and
thereby invest
them with the
legal title.

T.t

A dlstribntiott
and aUotment
thus made, can-
not be oaneeUed
so as to re-inveal

166 BEN. MONROE'S REPORTS.

VfAMnntB 2 Mar. 136, Siockdale vs Fugalc; 1 LiU. Rep. 298.
HAuiif. Young vs Ferguson; 1 J. J. Marshall, 26, Beard, <^.
' the admmistra- VS Griggs. A sale of property thus conditioned, is a
sal ^tiUe,^ After 8&l6of a mere chose or right of action, which is against
SlreT^^cwneB ^'^^ policy of the law, as tending to encourage litigation
mtojhe advene and leading to the oppression of the weak and ignorant.
^iTperecm, it The same policy which would prohibit a direct sale or
a sale ofa^oei t'^Misfcr, would, in our judgment, prohibit a cancdment of
** .'*^» ^ * prior sale or transfer of title, by way of investing the
tyof the law. title in the former owner. A re-sale or re-transfer is one

mode by which the title may be re-invested in the former
claimant, and the cancelment of a former sale another.
Either mode, we think, is equally against the policy of
the law and unavailing to pass the title while the adverse
posssession is held by another. All the evil cpnsequen-
ces which would spring from the one mode would equally
spring from the other. Either operates^ and is intended
lo operate, as the transfer of a mere chose in action, and
the creation of a right in another and different party, to
sue the adverse holder.

As the Circuit Court has given instructions to the jury
without regard to this principle, and especially in instruc-
tion 24th, has instructed them, on the motion of the de-
fendant, in substance, that, if they should find that a
division was made, and also find that the division was
afterwards cancelled, they should find for the defendant,
without any reservation as to the effect, which an adverse
holding of the slave at the time, had upon the cancelment,
or any saving predicated upon the finding of the jury,
that an adverse holding existed at the time, the judgment
must be reversed and cause remanded, that a new trial
may be granted without the payment of costs.
Owsley for plaintiff; Monroe for defendant.

FALL TERM 1841. 157

CaStleman VS O. & I. Belt, Assumpsit, an 1671

102 4151

Ebbor to the Franklin Circuit. Case 60.

Mortgagor and mortgagee. Suh-tenant. Rent. Pur-
chaser, «

CmiF JusncB Robsbtsov delivered the Opinion of the Coait December 24.

David Castleman (the plaintiff in error,) seeks the The facu agreed,
reversal of a judgment rendered against him on agreed
facts, in an action of assumpsit, for use and occupation,
broQght by him against Osbum Belt and Joseph Belt. ^

The facts, as agreed, are substantially these: one Ba-
urn, having mortgaged a house in Frankfort to Castle-
man^ afterwards mortgaged it to one Philips, who brought
a suit in chancery against Bacon and CasUeman for fore-
closure and sale. Bacon, by himself and tenant, having
continued to retain the possession and enjoy the profits —
a decree directing a sale, was made i4 September, 18^,
in execution of which the house was soTd at auction to
Castleman in November succeeding, and a conveyance
thereof was made to him iiJJJMaich, 183g^the defendants
in error being then in possessionas tenants of the mort*
g^gor, under a renewed lease, made in^October, ISJ
for six months ; CasUeman, before the expiration of their
said term, and after he purchased the house undei the
decree, applied to them to become his tenants and pay
rent to him, but they refused to do so, alleging, as the
reason of the refusal, the fact that they had given their
obligation to Bacon for the rent, payable about the first
of May, 1839; and, as the tenants in fact of Bacon, the
Bdts letained the use of the house until the expiration of
the said term of six months, then surrendered the pos-
session to Castleman, and were aftervvards compelled, by
sflit, to pay to Bacon the stipulated_reiit. " ^

Had the date of th^Iease^en antecedent, instead of a purchaser of
subsequent, to that of the mortgage to CasUeman; he uueoTa^wX^
might have been entitled to the whole rent accruing or be- J.^'J"" ^1^
coming due, after the legal title to the reversion had been berredandsubae-
▼estedin him; for a purchaser of the reversionary title of rent" i an^'ii'S

158

BEN. MONROE'S REPORTS.

Gastlemak

V8
0. &I. BSLT.<

denttotherever
sion — BO a mort-
f agee of the le-
gal title to a re-
version, is enti-
tled to the same
incidents as any
other purchtuser
of the same in-
terest, "which
maybe enforced
by action for nse
and occupation,
if not paid be-
fore notice of the
sale of the lever-
sion.

NeitherthemoTt^
gaxor nor his
sub-tenanty suf-
fered to remain
in possession,
is liable for
rent so long as
Buffeted to enjoy
the use as les-
see from mort-
gagor.

1 landlord, acqaires a legal right to the reserved and sub-
equently accruing rent, as an incident to the reversion;
,nd it has been often decided that, in this respect, a
mortgagee of the legal title to a reversion, is entitled to
the same incidental and resulting rights as any other pur-
chaser of the same interest. This right to the rent re-
served and becoming due after the date of the moitgage
or other purchase of the legal reversion, may be enforced
against the delinquent tenant, by an action for use and
occupation, unless before notice of the transfer of the
reversion, he shall have paid the rent to his original land-
lord.

No attornment is necessary for the purpose of perfect*
ing such a right, when, as in this country, the perfect
legal title passes by a conveyance effectuated by the
statute of uses, and therefore, no livery of seisen is ne-
cessary: MossvB Gallimore, Douglas, 279; Birch vs
Wright, 1 Term Rep. 378, and Lumley vs Hodgson, 16
East, 99.

But there is, in this respect, an essential difference be-
tween a lease subsisting at the date of a mortgage, and
therefore passing with the reversion, and a lease made by
a mortgagor in possession subsequently to the execution
of the mortgage.

As the mortgagor, permitted to remain in possession,
is not accountable to the mortgagee for profits, so neither
will the sub-tenant of such mortgagor be liable to the
mortgagee for rent, as long as he shall have been suffered
to enjoy the use as a lessee from the mortgagor ; for so long
the possession of such a tenant is, constructively, that of
his landlord, and to his use, and the presumption is as
strong that the sub-tenant was not possessed to the use of
the mortgagee, as it could be that the pedis possessio of
the mortgagor himself had not been to the use of the
mortgagee, but to his own use, with the mortgagee's im*
plied assent thereto. Consequently there is, so far as we
know, no reported case in which it was ever adjudged
that a mortgagee could, in virtue merely of any supposed
privity of estate, maintain an action for use and occupa-
tion, against such a sub-tenant of his mortgagor, without
any entry upon him, or notice to or express contract with

BEN. MONROE'S REPORTS.

159

him: and it has been decided in New York, that no action Cashkhah
could be maintained by a mortgagee against such a tenant o. & i. Belt.
in such a case: M^Kircherxs Hawley, 16 Johnson's ^

Rep, 289.

Whether the mortgagor be in possession personally or
representatively, the appropriate remedy of the mortgagee
for obtaining a legal right to the profits, is by eviction or *
enlryor other notice of his claim thereto, or by express
contract therefor. Until such entry or demand, or evic-
tion, actual or virtual, the law will not imply an assump-
sittopay him for the use and occu^atjpn, either by the
mortgagor or the mortgagor's subsequent tenant, who had
expressly agreed to pay rent to his lessor.

But, as purchaser under the decree, Castleman acquir- A purchaser of
ed the absolute title, and it may, therefore, be asked denfpUon ^oes
whether he has not purchased the mortgagor's equity, and such^^^purchase^
thereby and as incident thereto, the rent since becomine ■? *" incident

^ uiereto, any le-

due from the defendants as tenants. It haa Jbeen decided gai right to rent
that a purchaser of an equityj^f redemption doerrior," by vendor^ and.ac-
such purchase, acquire, as an inci3eiirto tliat »mterest, a pu^jjj,^*^^®' ^®
legal right lo renf'Kseryell by the veiidur,'"'ar]!d ji.cQ.cuiflg
after tBe purchase: KobPvfX^rpenteF,^lt^ampb, 13 n;
Luftiky VS Hodgson, supra. And if this be true, as we
are disposed to think it is, (because the doctrine that rent
goes with the reversion, is technical and applies only to
the legal title,) then, if the purchase of the right of
the mortgagee would not alone enable Castleman to
maintain this action, for the entire rent which had been
reserved by Bacon, the fact that the equity of redemption ;

had been barred by decree, or even the fact (if it be ad-
mitted,) that he bought also the mortgagor's equity,
not entitle him to rent for any occupancy prior to the (
of the conveyance to him as absolute purchaser.

Nor can the lis pendens or even the decree for a sale
when the lease was made, essentially affect the case.
The lis pendens only concludes any question by the de-
fendants as to CasiUman's perfect and absolute title to
the house, as purchaser under the decree, and the mort-
gagor, after the decree for a sale, had as much implied
authority to lease the house as he had before; because,
^ the mortgagee did not seek or even intimate a desire

160

BEN. MONROE'S REPORTS.

Castleman
0. & I. Belt.

Amortgageejpur-
chasing under a
decree foreclos-
ing his mortgage,
may, after the
date of the de-
cree, treat one
in possession un-
der the mortga-
gor, as tenant or
trespasser^ and
from the time of
demanding pos-
session or ob-
taining a con-
▼evance, is en-
titled to the ac-
cruing rents.

to obtain the possession, the presumption must be that
he did not claim or desire to appropriate to himself the
profits of the future use, but intended to rely on a fore-
closure and sale alone.

But although ntjjhfty <ho nntrmdrnt mnrtpige rrnrnnh
sequent sale and conveyance under the decree created
any su^SB^ retrospective privity petweejn; Qf^emaji and
the lessees of the mortgagor as would ^ pen se, imply the
relation of landlord and tenant, as betwenn thosetenaats
and Castlemaiuantecedently ^^"^^ ^nnTPy""^fi fff tV
^^hH^ tililp *^ h'"^ nnflpr ^V H^/^r^o; yet, nevertheless,
they might have been treated by him, after the date of
the deed, either as trespassers or as occupants, holding at
his, will and as his tenants so long as they afterwards
.continued to occupy with his implied permission. He
{might undoubtedly have evicted them in an action of
ejectment, and then have maintained trespass for mesne
profits, after the date of his deed, had that been the date
of his demise. And we are of the opinion that he had
a right to waive the trespass and sue in assumpsit for use
and occupation, for the same intervening period: Birch
vs Wright and LuniUy vs Hodgson, supra,

Ashe had a perfect right to the possession, whenever
he chose to demand the surrender of it by the mortga-
gor's tenants, their retention of possession after such de-
mand, might be deemed to have been either under him or
wrongful as to him; and, therefore, for the value of the
Qse after demand, he might be entitled to maintain as-
sumpsit, at his election, notwithstanding the subsequent
payment to Bacon as lessor.

And we are of the opinion also, that, although he did
not expressly demand a formal surrender to himself by
the occupant, yet his notification to them to rent of him,
was a suiBcient announcement of his determination that
they should no longer hold under or for the use of their
lessor.

The notification to them may not, however, have been
essential for any other purpose than that of securing bis
right to future profits, notwithstanding a subsequent pay.
ment therefor to the lessor, and which, if made without
notice, might perhaps, have exonerated the tenants from

FALL TERM 1841.

161

all liability. When Castleman obtained the absolota
title, the mortgagor's entire interest ceased, and, there-
fore, the derivative interest of his tenants ceased also at
the same time. For their occupancy qftpi^afiija, itwaa
their doty to account to the pn^y niyn^" ^^ the hninft, and
he had a right to consider them as ht^ltfjng i> f,hftjiggfll re-
lation of his tenants, by implication. Consequent] y7* as
they had at leasTcohstructive notice of the conveyance to
him as absolute purchaser, and actual notice of his in*
tention to claim the future profits, he is entitled to rent
from the data at Jh&t conveyance to that.of tbiijuuxgQder
of the housfijto him, and the law implied ^ pr^migft to
paj^Tt to him, becausejhejiolfiipc w^^^, d?lTill[£tll?! ',^^'*'''
Tal, Qpder his exclusive title, and with his implied con-
«ent, as legal landiordV

As CasUeman thus appears to be entitled to recover
something, in this action, the judgment of the Circuit
Court must be reversed, and the cause remanded.

OwsUy for plaintiff; Todd for defendants.

Twoitnom
TaoKPBoir.

Thompson vs Thompson. Chawgbot.

Appsal from the Louisville Chanceby Coubt. Case 61.

Trusts and Tnt^ees. Construction, Decrees. Chancery,

JffMi Ewive doliTered the Opinion of the Court JUeemhgr 3a,

Casolutb Thompsoit, in 1820, having entered into a The oeee lUted.
marriage engagement with William F. Thompson, who
had failed in business and was embarrassed with old
ootatanding debts, upon the eve of the marriage, at the
iostauce and upon the solicitation of relations of both
parties, and the sanction of her intended husband* exe-
cuted a deed of trust to her brother Wm. L. Thompscfn,
who had the entire confidence of the whole family, by
which she conveyed to him all her estate, consisting of
slaves, money, and demands for money, coming from
bar deceased father's estate, and her grand mother's es-
^te, with the following declaration of trusts :
Vol. IL 21

m. Monroe

Sbmlttl

123 671

Deed of trust.

i» BEN. MONROE'S REPORTS.

'^•ww 1. -That the said Wm. L. Thompson, his heirs, and

T^flwsQir^ assigns shall hold the said slaves and tlje future increase
of the females, and the said money, debts and contracts,
to the exclusive and sole use of her, the said Caroline,
for and during her natural life, and not to the use or
benefit of any husband which she may hereafter take,
eoicept so far as the said Wm. L. Thompson, his heirs,
or assigns, shall think proper and choose to allow to her
aaid husband or husbands.

2. That if the said Caroline shall ■ marry, and after-
wards become a widow, and she shall so desire it, the
^d Wm. L. Thompson, his heirs or assigns, shall re-
convey and re-deliver the said slaves, money, debts and
contracts, to the said Caroline, and in case she shall
marry and die, leaving a child or children, the said Wm.
Ij. Thompson, his heirs or assigns, shall hold the said
slaves and their increase, and the said money, debts
and contracts, and manage the same for the use of the
said child or children, during his, her or their minoiity,
and divide the same equally amongst them as they be-
come of age or marry.

3. That the said Wm. L. Thompson, his heirs or as-
signs, may lawfully put any part of the said slaves into
the possession of the said Caroline, and suffer them to
remain in her possession during his or her will or
pleasure, without being responsible therefor or guilty
of a breach of this trust; nor shall lie or they, or either
of them be liable for any loss of said slaTes^ money,
debta, and contracts, or either of them, or of any part
thereof.

4. The said Wm. L. Thompson agrees that he wilU or
his heirs cht assigns shall, well and truly perform the
teust aforesaid ; and in case the said Caroline shall ma^
ry, it is agreed that the said Wm. L. Thompson may lay
out and expend so much of her money as will enable her
to procure the necessaries and comfortable means of
bouse keeping."

Caroline Thompson died in 1827, leaving three chil*
dren^ William N., Maria, and Julia, the last of whom,
being an infant at the breaat, died shortly afterwards.

FALL TERM 1841. 1«3

Wm. F. Thompson, ia his own name, as heir of his Taomvov.
deceased daughter Julia, and as next friend of Wm. N. i^nnmoir.
and Maria Thompson, in 1835 filed a bill in his and their ]

names against Wm. L. Thompson, the trustee, in which th^bST^"* ^^
they charge that the defendant had obtained the posses-
sion of a negro boy by the name of Lewis in 1826, and
a negro girl by the name of Nanqy in 1828, two of the
tiQst slaves, and had held and used them ever since,
without accounting for their hire to Caroline or the in-
fants, who were in necessitous circumstances and with*
out the means of support or education, according to their
station in life, and pray that he may account and pay
over whatever may be in his hands as aforesaid, and may
be removed as trustee, and another person appointed in
his stead, and for general relief.

The defendant answered, and in substance alleges, that f^ delanoa s«c
shortly after the intermarriage of Wm* F. and Caroline J|^^^ ^* •^
Thompson, at the request of the former and with the
consent and approbation of the latter, he advanced to
Wm. F. Thompson about $3000, it being the amount
or thereabouts, that said Caroline was entitled to in mo-
ney from her father's estate, as per the receipt of said
Wm. F. Thompson exhibited; and owing to his embar-
rassed condition, permitted him to use bis name in the
parchase and establishment of a grocery store in the
town of Henderson, Ky. the money aforesaid having
been appropriated to that use for the benefit of said Car-
oline and her children. That having advanced the little
capital furnished, as means of subsistence for himself
and family, at his earnest solicitation and upon his repre-
sentations that his family were without the means of
SDbsistence, and would be greatly benefitted, if he would
aid him in procuring and setting up a dry good store at
the same place, he agreed to set him up again in the
dry good business, and upon the settlement of his ac-
counts be was found indebted to the firm of Thompson,
Hill & Thompson and Thompson & Bayliss, about
|800, which the respoiulent paid, the goods having been
procured upon his responsibility, in which he claims to
be secured by a writing executed by Wm. F. and Caro-
line Thompson, in 1827, authorizing so many of the

164 BEN. MONROE'S REPORTS.

TsoxMov. slaves to be sold as may be necessary for his indemnity.
THoitfBoy. He admits that he has had the management of Lewis
and Nancy as charged, and received their hire, and in-
stead of selling them, applied the same as a credit on
the amount advanced by him as aforesaid. He denies,
that by the terms of the trust he is bound to pay over to
the infants any portion of the trust funds or profits, un-
til they come of age or marry.
Tbft daeree of The chancellor, upon the bill and answer and exhib-
fbe ChaaeeUor. jjg^ (there being no deposition in the cause but one, and

that on the subject of the value of the hire of Lewis
and Nancy,) among other things not necessary to be no-
ticed, decreed that the trustee should account to the
complainants for the money of their mother Caroline,
received by the. defendant from the estate of her father,
with interest from the death of said Caroline, and also
for the hire of Lewis and Nancy, with interest from the
end of each year from the time he received them, disal-
lowing any credit for advances made to the husband, also
disallowing the claim of the trustee to retain the hire of
the slaves as an indemnity for the sums paid for the hus-
band to the two firms, as the balance for dry goods fur-
nished, and ordered an account to be taken by the audi-
tor, and intimated the determination to remove the trus-
tee for a breach of trust upon the coming in of the re-
port, and continued the cause for the report and for fur.
ther decree.
Pefii. for open- Afterwards the defendant, by his counsel, filed a pe*
Sag the oanse. tition for opening the commission and for a re-hearing,

accompanied wilh the affidavit of himself and counsel,
detailing facts which go to show, that he and his counsel
never regarded the $3000 advanced to Wm. F. Thomp-
son as in litigation, or claimed or sought to be recover*
ed, and never deemed it at all necessary to take proof in
relation to it, and were wholly surprised and astounded
by the decree for a re-payment of the amount and inter-
est, and also with the affidavits of three of the relations
of both parties, by which the answer of the defendant
is substantially sustained, and by which it is further es-
tablished in substance, that it never was the intention of
the parties or of the deed, to place it in the power of the

FALL TERM 1841. 165

trastee, only to advance the interest of the money or the Tbomfson

hire of the slaves, but the deed of trust was made to TsoMPioif.

keep Caroline Thompson's property from the creditor's

of her intended husband, still leaving it in the power of

the trustee to make advances to him to go into business,

and that the money was paid to Wm. F. Thompson by

the entire concurrence and consent of Caroline; that he

was enabled thereby to go into business, and his family

was thereby supported.

It was urged by the petition that the chancellor had And gronndf re-
misunderstood the deed of trust, in refusing to the trus- Jj^^el" ^°' ^**
lee under the first clause, the right to make advances to
the husband out of the principal of the trust fund at his
discretion, and that if this interpretation of the fir.st
clause is not admissible, that as he was warranted under
the last clause to lay out so much of the trust funds as
would enable her to procure the necessaries and com-
fortable means of house keeping, as the same end was
accomplished, and her and her family's comforts sup-
plied out of the proceeds of the business in which the
husband was set up by the advances which were made,
upon more advantageous and economical terms than if
the money bad been from time to time directly advan-
ced, that she or her children have no right to exact from
the trustee, a re-payment of the amount so advanced,
and so applied.

This petition was overruled by the Chancellor. And petition of de-
afterwards the defendant offered an amended answer, in ed"anf amindid
which he alleges, that when his former answer was filed, J ?,^^®i*?5f '®."

, ,., , ,, , , ,. , , bill and affidavit*

lie Old not know and had no reason to believe, that the offered to be fit-
advance of $3000 was in issue or contested, or that the by 'the ciSliicei-
legality or propriety of that advance was disputed, or he ^°'*
would have answeied and charged the matters set forth in
this amendment, and taken proof and prepared the cause
with a view to that matter; that the advance was made
at the earnest request of his sister, said Caroline; that
her husband was entirely des titute of pecuniary means ;
that they had nothing to purchase furniture and procure
the necessaries for house keeping; and though he did,
shortly after his marriage, commence a mercantile busi-
ness, yet, that the furniture and means of living were all

166

BEN. MONROE'S REPORTS.

Thomfiom

v$
Thoxpsoh.

Decree of the
Chanceilor.

Qaestions pre-
sented for revis-
ion by the re-
cord.

In the cottBtrac-
tion of writings,
the intention of
the parties is the
fo?ernin|: prin-
eSple, and when
the tenns used
are ambignotts^
it is eompetent

drawn, diiectly and indirectly, from the money so tdwkc*
ed, and the whole of it was consumed in the necessary
furniture and living, and support of his family, and none
of it applied to the payment of his old debts ; that as
well as the s^perate receipt of Wm. F. Thompson, he
took the joint receiptor himself and wife, for the amount
advanced, which he has lost or mislaid, but which be
hopes to be able to find, and when found, will exhibit.
He makes his answer a cross bill, and propounds variooi
interrogatories to the complainants.

The Chancellor refused leave to file this amendment,
and upon a subsequent day, among other things, decreed
that the trustee be removed and that Thos. Towles be ap-
pointed in his place, and that he pay over to Towles
$6215 87 cents, the shares of the infant complainants,
in money, which included in the estimate the advances
made to the husband, and deliver to him their slaves, &c«
And from this decree the defendant has appealed to this
Court.

Four questions arise upon this skeleton record, which
are deemed necessary to be examined.

I. Was it competent for the trustee, within the terms
or fair construction of the deed of trust, to make advan-
ces to the husband of Caroline Thompson, out of the
principal of the trust fund committed to his charge.

II. If it were not competent, if the furniture, neces-
saries and means of support of Caroline and her children,
were derived directly and indirectly, necessarily from the
fund so advanced, can she or they ask as complainants in
chancery, a reimbursement of the amount so advanced
by the trustee?

III. Were the grounds for opening the commission and
re-hearing of the cause sufficiently made out?

IV. Should the tmstee have been removed, from any
thing now appearing in the record?

1. The intention of the parties is a fundamental, and
should be a governing principle, in the construction of
all instruments, and when the language is ambiguous or
of doubtful import, it is allowable to look behind the in-
strument into the state and condition of the parties, their
motive, object^ aim and end in its creation, as means of

FALL TERM 1841. 167

leading to a proper understanding of its import And Thompson
further, the cotemporaneous construction and action of Tbompson.
the parlies interested under it, is entitled to great weight, to look into the
and should be conformed to, carried out and sustained, H'^^ o^\hT^^',
if it can be done without doing violence to its terms. ties, Uie probable
Looking behind the deed of trust, in this case, we jects at the time
perceive that Caroline Thompson had a small estate in ^^''ci^fmpo"^
slaves and money to be collected, which, by its careful °f°n?*^P°*ti^°'^
management and the joint exertions of herself and intend- pot however, do'-
ed husband, might he mside barely to yield & compeieni the tlrms'^of Uie
wpport for the two and their family, according to their >«»^"^«^«'^'-
state and condition in life, and the interest and profits
alone from the same, was entirely inadequate to that end«
He was destitute of means and embarrassed with old
outstanding debts. Her means were of that description
which would become absolutely his and subject to the
payment of his old debts, whether he was willing or not,
by the consummation of the marriage. She had con-
tracted a marriage engagement with him and was upon
the eve of entering into that relation. To guard her
means from being wrested from their support and that of
their family, and applied to the payment of his old debts*
constituted a sufficient motive, and we have no doubt, aa
is abundantly manifested by the extraneous proofs, was
the primary and leading motive, if not the sole n^otive for
executing the deed in question* The act was not dicta-
ted by a want of confidence by her or her relations, in
the fiiture conduct of her intended husband, for she was
about to manifest the fulness of her confidence in bim by
eommitting to him her destiny for life, and they by sanc-
tioning and approving her choice. Nor is it reasonable
fo presume, that she or they looked to a future provision
htufibom children^ out of the slender means which she
possessed; or that they ever contemplated a provision for
them that would embarrass her and him in the enjoy*
ment of her cwn properly^ or render her, with him, ies^
fiMe of the necessaries and comforts of life. Nor is
there ft single suggestion in the extraneons proof, that
there ever was a preliminary stipulation, or even suggest
tion made in reference to that objeet. The sole object
seems to have been, to guftrd her estate from the old

168 BEN. MONROE'S REPORTS.

Tbommos debts of the husband, and to place it in a condition that
THOMpaoN. it might be rendered subsidiary to his and her, and their
family's comfortable maintenance and support, at the dis-
cretion of a favorite brother, in whose judgment and in-
tegiity she and the whole family seem to have indulged
the most implicit confidence. And this has been the
cotemporaneous construction of the deed by all the par*
ties, and their unvaried action under it, continued and ac-
quiesced in, by them, their relations, friends and counsel,
down to the annunciation of the decree in this case.

Is the language of the deed, without doing violence to
its terms, susceptible of such interpretation as will sup-
port the objects intimated, and sustain the action of the
trustee under it?
A claim in a ^he deed was drawn in haste, upon the eve of the mar-
deed of trust by riage, and mosf likely by an unskillful draftsman, to
vromBA, reqair- whom unfottunately, such important business is too fre-
ifBh^^desSe'^*! quently entrusted, and who, ignorant of the law and the
toiatci"^^*'the fof^® of ^^g^^ ^^'''^s, has not usod the most appropriate
uust property, ia language, or most lucid order to accomplish the main ob-
andher husband ject intended, or most likely the wife, in the first clause,
tow'ing^tho^'tiui- would not have been restricted to a life estate in the use
too "to la? out 80 of her own property. That an absolute provision for the

much of her mo- * * * *^

Dcy as will ena- children, beyond the control of the wife and trustee, was
curo^Uie ^ece«^ not intended, or looked to and made an irrevocable stipu-
foitabiemoaM'of ^^^^^^ ^^ ^^^ arrangement, as in a marriage contract, is
housekeeping," apparent from the first clause of the second declaration
Sa^rhole estate of the trust, which requires the trustee, if she desire it.
m^money con- to re-invest the whole estate absolutely in her, in the

event of her marrying and becoming a widow, and also
from the fourth declaration of trust, which allows the
trustee, if it does not impose upon him the imperative
obligation, ''to lay out so much of her money as will en-
able her to procure the necessaries and comfortable means
of house keeping," which may extend to an entire ex-
haustion of her whole estate in money. And by the third
declaration of trust, the trustee is allowed to place "any
part of the slaves in possession of the wife, and permit
them to remain with her during her pleasure, without ac-
countability to the children." And a sweeping clause
is added, securing the trustee from any liability to them

FALL TERM 1841. 169

or any other, *'for any loss of said slaves, money, debts Thompsok
or contracts, or either of them, or of any part thereof," Thompsoit.
which might, perhaps, without an unjustifiable extension
of the broad language used, be made to cover and secure
the trustee from any responsibility to them, for any loss
resulting from advancements made to their fitther, which
the trustee, in the exercise of a sound judgment and dis-
cretion, deemed essential to the well being, comfort and
support of their mother, and themselves and family.

The latter claase of the second declaration of trust, And snch a,
which provides that, in the event of Caroline's marriage ^nSoUedin Sis
and death, leaving a child or children, the trustee shall ^p®2^' *7. *
hold the estate ''for the use of said child or children, the trastee, ia
during his, her or their minority, and divide the same of Uie mother^
amongst them as they become of age or marry," can- M^^fm^tSe
not be construed to imply that the whole principal shall o£ cwidr«i,*»
be retained and held by the trustee, and paid over to the quire Uiat ^ the
children on the contingency mentioned, for such a con- IL^ib/v^Meii
struction is negatived and repelled by the last declaration 2S^Jj£er'*the
of trust, which unquestionably allowed the trustee to ™^' of' tii^
make advancements out of her money, to enable her to
procure the necessaries and comfortable means of house-
keeping. The clause, therefore, can have relation only
to what shall remain on hand unconsumed, of the princi-
pal, and proves nothing as to an intended provision for
the children, or that the deed was dictated with a view to
an ultimate provision for them, beyond the power or con-
tiol of the mother or trustee, or that any restriction was
intended by it to be imposed upon the trustee, against
making any advancement to the husband or wife, which
may be fairly implied from any other clause in the in-
strument. Even this contingent provision for the chil-
dren, may have been framed with a view to the same
primary object, the security of her estate, or so much of
it as was ]eft at her death, from passing into the hands of
her surviving husband, and being subjected to the pay-
ment of his old debts.

There being nothing in the clauses cited, which nega-
tives the main objects intended, namely, the security of
(he wife's means from the payment of the old debts of

(he husband, and the application of them to the comfort
Vol IL 22 .

ITO BEN. MONROE'S REPORTS.

Tbompms and support of the family, without regard to any future

Teompsobt. benefit to the children, but as they all may be fairly con-

"~ strued to point to, and favor such objects, the question

arises whether the first clause or declaration of trust may
not be so interpreted as to authorize the trustee to carry
out and accomplish those grand objects, by the powers
conferred on him, to allow to the husband what "he may
think proper or choose to allow."

That clause provides that, "he shall hold the slaves,
money, debts, &c. to the exclusive and sole use of her,
the said Caroline, for and during her natural life," and
not to the use of her husband, ** except so far as the said
Wm. L. Thompson, his heirs or assigns, shcfll think prop-
er and choose to allow to her said husband or husbands"
The latter clause or exception applies either to the use or
interest payable to the wife, and allows the trustee to pay
a portion of it to the husband, or to the principal fund
held by the trustee. If to the power to use only, then
was the latter clause useless and accomplished nothing.
Por if the interest was paid to the wife, she, at her discre-
tion, could allow and pay to the husband whatever por-
tion of the amount she thought proper, without burtbea-
ing the trustee with a delegation of powers to pay a part
to &e husband and part to her; or jshe might, without
sach clause, have directed the whole interest to be paid to
him, this being unquestionably her separate estate. Be-
sides, if paid to the wife, it would be subsidiary to the
joint use and benefit of both, if it would not thereby be-
come the absolute property of the husband and subject to
his entire control.

But by applying the last clause as an exception or qual-
ification to the holding of the principal fund, the sen-
tence would run thus, that the trustee is to hold the fvni
for the use designated, except so far as he shall think
proper or choose to allow to the husband. Or, in other
words, he is to hold the fund to the use expressed, as the
means of protecting it from old debts, but might make
advancements out of it, to the husband, such as be, in the
exercise of his judgment and discretion, might think
best, in the promotion of the prospects, comforts and
jupport of the married couple and their children. The

FALL TERM 1841. 171

word "allow," applies more appropriately to the money TaoKnom
knd in the hands of the trustee ; the slaves were other- Thompson.
wise directed to be disposed of, in the subsequent clauses
of the deed.

By making the latter clause apply to and qualify the The tme eon-
first, and giving to the whole clause this construction, the deed of trust is,
object of the parties in the creation of the deed is eflFect- S«rec^,*foiMier
ed, their cotemporaneous construction sustained and the comfortable snb-

*^ Bistence, may

action of the trustee under it supported. For if the draw from tha
power be allowed, we can annex to its eiercise no limi- Ss^CuiFiestthero-
tation, as the deed annexes none. He may advance the tee*^t^ot^^
whole fund ar any part of it. His judirment was con- charged by the '

«j J- u ♦u •♦ * u aA J • *i. I. heii with either.

fided m by the sister as more to be confided m than her
own, and for whose welfare he could have no other than
the kindest solicitude; the amount, time and object of
the advancement were, therefore, trusted to him as more
competent to decide than herself, and whose decision was
to be guided alone by the dictates of his judgment. If,
therefore, in the exercise of his judgment, he thought it |
best, and most conducive to the welfare and comfortable
support of the whole family, to set up the husband in
business, by advancing to him the whole small fund plac-
ed in his hands, it was competent and within the legiti-
mate scope of his powers for him to do so, and he cannot
be made responsible for a reimbursement of the amount
to the children ; and the more especially if he took care
to guard the advancement against a coercive liability to
old debts, and it was made by the sanction and approba-
tion of the wife, and was applied directly or indirectly to
her and the children's maintenance and support.

Indeed, considering that the property all belonged to
the wife, and also, that the object, aim and design for
conveying it, and that the use of the principal of the mo-
ney was necessary for her and the family's comfortable
support, and that the interest would be entirely inade-
quaie to that end^ we cannot doubt that it was. the inten-
tion of the parties to allow her to use the principal, and
we can scarcely doubt that the first clause of the deed
may be so interpreted as to carry out that intention.

The money is to be held for her use — the trustee is not j|^^ ^ beuse-
required to loan it out and pay her the interest only; te ^^ "«■* ^ •»"

17^ BEN. MONROE'S REPORTS.

TBoxpaoii hold it in hU pocket or his desk it woald yield no inter-
Tbompiok. est, yet by doing so be would conform to the leUer of his
pended in some- instructions. Money is consumed by the ttse, as it can
Jid^ ^ ^ ^tn' ^ ^"^'y ^^^ ^' enjoyed only by expenditure for some-
irapUes its ex^ thing of value to be enjoyed, and when expended, the
'*"'*^'*^ specific money is never expected to be returned. We

can, therefore, perceive no good reason why the tise of
the money may not be construed to mean the use and
consumption of the thing itself, and not merely the use
of intcr£d that may accrue from it, and the more espe-
cially when such appears to have been the intenti<m of
the parties.

The facts of the ease of Moimtjoy and wife vs Lash*
brooks, 8th Danti, 33, in which this Court petmits the
trustees to retain the money limited in trust for a daugh-
ter for life, in remainder to her children, and loan it
out, paying the interest alone to the wife during her life,
are essentially different from the facts in this case.
Without stopping to enumerate them all, we will men-
tionone: in that case the will limiting the trusts was
made by a father for the benefit of his daughter and
grand children, in which nothing appeared, indicating
that the latter, less than the former, were the objects of
his bounty, or intended to be provided for.

If the use of the principal was secured to her, it was
her own separate estate^ and she had unquestionably the
right and power, though /erne cof^ert, to dispose of it to
her husband or any other, as a /erne sole, with or without
the consent of her trustee, and might therefore authorize
the trustee to do so: Roper en Property, 184, 6, 6, 7, 8
and 9, and the authorities there referred to; Clanoj on
Rights, 319, 320, and the authorities there referred to;
Jacques vs the Methodist Episcopal Church, 3d John.
Chy. Rep. 77; 17th John. Rep. 648, same case, and the
authorities cited in those two cases ; Whitaker vs Blair^
3d /. /. Marshall, 230. Chwacellor Kent and the High
Court of Errors and Aj^eals of New York differ, in the
case of Jacques vs the Methodist Episcopal Church,
above referred to, only in this, that th^ former disallow-
ed the right of the wife to dispose of her separate estate
in any other way than that prescribed in the settlement;

FALL TERM 1841. 173

the latter gave her unlioiited right to dispose of it as a Tiomi>soic
fmt sole unless restrained by the deed, and this Court Thompbon.
iaid» in the case of Whitaker vs Blair, that the au-
Aorities were with the latter, but the reason and force of
principle involved, were with the Chancellor — and so
this Coort thinks; but neither questioned the power of
the wife to dispose of her present separate personal es-
tate, just as a feme sole could do, when no particular
fonn was prescribed in the deed.

2. Bat if it be conceded that we are wrong in this in^
teipretation of the rights of the wife, and of the powers
conferred on the trustee, it is clear that the last clause or
declaration of trust allows an advancement beyond the
ifiterest or profits. It provides that the trustee "may lay
(mt and expend so much of her money as will enable her
to procure the necessaries and comfortable means of house^
keeping.

The husband, being without means, as may be fairly
implied from this provision, it would require an outlay
of perhaps the one third of the whole sum advanced to
the husband, to procure the furniture and other necessa**
ries for first setting up or commencing house-keeping, in
the style she had probably been accustomed to, and had
a rij^t to expect, as embraced within the terms of this
promon. This sum, or whatever might be necessary
for the purpose, the trustee had the right unquestionably,
and it was his duty to lay out of the principal fund —
and whether he paid it to the wife or laid it out himself,
or paid it to the husband, if it was applied, directly or
indirectly, from the proceeds of the business in which the
husband was set up, can make no difference.

Bat the terms and scope of the last clause is not satis-
fied by famishing the means barely to sd up, in the fir^
instance^ the married couple to house-keeping, but au-
thorized and justified an advancement from time to time,
to procure the necessaries and comfortable means of house-
kee[Hng, so long as the wife might live. And, consid-
ering the husband's destitution of means, and the char-
ter of tile estate of the wife, and small profits that it
coold be made to produce, it would require annually an
expenditare of, perhaps, five or six hundred dollars or

174 BEN. MONROE'S REPORTS.

Thompsoit. more, io meet those continuing demands, which, in the
Tbompsoh. seven years that the wife lived, would have more than
exhausted the whole residue of the fund. If the money
was advanced to set up the husband in business, and the
necessaries and comfortable means of support in house-
keeping were more advantageously and economically
supplied, from the proceeds of the business, the wife or
children have no just grounds of complaint; nor can it
make any difference whether the whole fund has been
exhausted in this manner, or by direct payments in mo-
ney from time to time, as their necessities or comforts
might require.
Conita of equity A court of equity looks not at the form but at the sub-
look >^JJ^*^ ^® stance; nor at the manner, but at the end accomplished,
■ubstance of It would be iniquity and not equity to allow the mother
znannei^^but to or children, after they have participated in living up the

^mplihcd.* ^' ^^^^ ^^^ ®P*^^ ^^^ ^^^ necessities and comforts of the fam-
ily, to ask a re-payment of the amount by the trustee; and
the more especially if the advancement was made to the
husband by her request or sanction. Indeed, it may be
doubted whether the fund, to the extent of the objects
provided for in the last clause, is not equitably subject to
the direction and control of the wife, and if paid by her
request or approbation to the husband, to set him up in
business, as the means of enabling him to furnish the
necessaries and comforts of house-keeping, whether the
trustee in any event, could be made responsible to her
or her children for a re-payment of the amount, whether
the proceeds of the business was properly applied by the
husband to those objects or not.
A court of Chan- 3. From the foregoing views, as to the construction of
^Jla'decieebS- ^^^ ^^^^ ^^ ^^^^st, and Other reasons which we will sug-
yond Uie ciaimi gest, WO are satisfied that the commission ouirht to have

setup and claim- • ®

ed by complain- been opened, and are-hearing granted. The only spe-
rast&ined' ^y cific charge made, or claim set up in the bill, is for the
proof. jjjje of Nancy and Lewis — ^no charge is made or claim

set up specifically for money which had been collected
by the trustee from the wife's father's estate, nor for the
money advanced to the husband ; nor is there any charge
of a misapplication of the trust fund, or a breach of trost
in this particular. Nor is the attention of the trustee in

FALL TERM 1841.

175

any manner directed to this subject, as a ground of com-
plaint— and if t^e general language of the bill can be so
construed as to embrace a claim for the demand in ques-
tion, its general and ambiguous terms were calculated to
delude and deceive the trustee, to throw him off his
guard in the defence, and subject him to surprise.

He was deluded and surprised, and failed to make the
defence which it was in his power to make, as abundant-
ly appears by the affidavits of himself and counsel, and
others, and a decree for an unjust demand obtained
against him. The case was still in the power of the
Chancellor, and we think the defendant should have been
allowed time and further opportunity to make his de-
fence complete.

He, it is true, in his answer, for the first time we hear
of it in the pleadings, brings this demand out, and states
it as having been advanced to the husband ; but he states
it as a link in the chain of the history of his conduct
and that of the parties, and as inducement to the de-
fence which he sets up against his liability for the slaves,
and not as a specific ground of defence against any
claim for it, set up in the bill ; and if the answer is to be
taken for confessed against the trustee, it should be taken
altogether as a voluntary confession, and should not be
permitted to stand upon the ground of an admission, in
an answer made in response to an allegation in the bill,
with additional matters in avoidance, which must be
proved.

4. From any thing now appearing in the record, we
perceive no good reason for removing the trustee; he was
selected as trustee, and the property placed in his hands
by a sister, who had full confidence in him and in his
capacity and disposition to manage it to the best advan-
tage, and her confidence was not shaken during her life.
Upon slight grounds it should not be wrested from the
the hands in which she has confided it, and placed in the
custody of strangers, and especially at the instance of a
leckless father. Fraud, a wanton negligence, or wilful
breach of trust, or disregard of his fiducial duties, would
alone justify his removal. So far from any thing of this
kind appearing against him, when his acts are examined

Thompson
Thompsov.

The ChanceUor
should not wrest
from the hands
of a trustee, a
trust confided to
him. and place it
in tne hands of
another, unless
for fraud, wan*
ton ne«[li^enceof
trust duties, or
wilful breach of
trust.

176 . BEN. MONROE'S REPORTS.

TnoimoK. ^^^jj charity, it seems that his object, according to his
TH0MP80W. understanding of the powers conferred, .was to promote
the best interest of his sister, her husband, and the fam-
ily; and to accomplish it and aid him in business, he in.
curred personal responsibilities, and made advances
much beyond her funds in his hands, out of his own
pocket. That he should be desirous of securing himself,
and acting under a mistaken opinion of the rights and
powers of his sister, he took her and her husband's sig-
nature to the instrument bearing date the 16th February,
1827, pledging the slaves, and authorizing their sale for
his indemnity, ought not, in the absence of all proof of
inieniioncd imposition on his sister, to be imputed to him
as a fraud; but the more especially as he has not at-
tempted to sell any of them, but out of regard for the
interest of the children, has waited the slow process of
raising, out of the hire of two slaves, a large sum ad-
vanced.

Nor can the mere fact of a claim on his part, to retain
the hire to indemnify him for past responsibilities, when
the instrument is so framed as to look to future responsi-
bilities only, be regarded as fraudulent, or furnish a good
ground for his removal, and the more especially as the
money was paid by the trustee, after the date of the in-
strument, and it may have been drawn with a view to
continuing the husband in business, and the general lan-
guage of the concluding clause may have innocently led
the trustee into the opinion that he had a right to retain
the hire for prior liabilities suhsequevily paid. Bat if
his right to retain, and defence set up on this score, is
disallowed and rejected, it should not subject him to so
heavy a penalty as a removal from his trust, and more
especially as he sets up another defence against paying
the hire, profits, or principal to the children at all, until
they arrive at age or marry, which, firom the literal im-
port of the deed is plausible, and to do which, he might
innocently have doubted his powerr in any state of
ease. A mistake in either of these defences, or an in.
nocent misapprehension of his powers under an instra-
ment so ambiguous in its terms, ought not to sub-
ject him to removal. The Chancellor should rather

FALL TERM 1841. 177

tather fint lead' and direct bim in bis duty, and if he TncitrerLov-

, XgTILI«B.

then (ails, remove him.

We wonld suggest, that we are iiiQlined to the opinioa
that the trustee should have been allowed to retain the
hire of the two slaves, Lewis and Nancy, up to the
death of Mrs. Thompson.

It is the opinion of the Court, that the decree of the
Chancellor be reversed and cause remanded, that the
commission may be opened, the amended answer filed,
aud other steps taken that may be deemed necessary to
a fall investigation of the case upon a re-hearing. And
the appellant is entitled to his costs in this Court.

Guthrie for appellant; Pirile for appellees.

Htjltt, et al

2m 177
96 1791

r 2bmm
llflS 98

2bm]77

The City of Louisville vs Hyatt et al. Chahcbet

EjBROR TO THB LoUlSVlLLB ChAIYCSRT CoUKT. CoSC 62. ' '

LottisinQc CUy Charts. Constitutional Ordinances.

Ciiir JovTiGB BoBBMTBOH delivered the Opinion of the Court jl^ 2^ iS41.

The 9th section of the charter of the City of Louis- ^xofiAQaMof^bB
vUk, (1828,) re^nacted and in force yet, provides, "that Lottii^iUe chir-
'the mayor and council shall have power and authority
'to cause and procure all the streets and alleys, now es-
'tablished, or hereafter to be established, to be paved and
'tampiked at the costs and expense of owners of lots
'fronting stuh struts or alleys, and a petition of the
'owners of a majority of lots or parts of lotsfrotUing on
*any square, shall be sufficient to authorize a contract
'for paving or turnpiking the streets or alleys in such
•square; Provided, however, the mayor and council, by
'Aor unanimous consent in council, may cause any
'street or alley, in any square in said city, to be paved,
'^. at the cost, &c. of the owners of lots, &c. fronJting
'ne& streets or oU^ys, without any petition, and when
'such paving, &c. shall be completed, they shall appor.
'tion the costs, &c. equally on the lot holders, and a lien
'is hereby created on the lots, &c. for the same/'
Vol. II. 23

178

BEN. MONROE'S REPORTS.

Taecitt or Lou '

J3VILLg
V8

Hyatt et aL

This Court will
not decide an act
of the Legisla-
ture to be uncon-
Btitutional on a
mere doubt, but
they must be
clearly satisfied
that it is so.

The decision of
City of Leiing-

The lOtb seciioa of the charter makes the same provis-
ions in reference to "grading, filling up, and levelling
streets;'' and an act of 1836 authorizes a suit in chancery
for enforcing the statutory lien.

It will be seen, on comparison, that the provisions of
the 9th section of the charter of LouisviUe are substau-
tially the same as those of the Uth section of the charter
of Lexington, as quoted and expounded by this Court in
the case of The City of Lexington vs M' Quillon's heirs,
(9 Dana, 514;) and, therefore, the same authority being
given to the mayor and council of each of those cities,
by the 9 th section of the charter of the one city and the
11th section of the charter of the other city, so far as it
may be constitutional, when exercised by Lexington, it
must be equally so when exercised in the like marmer,
by Louisville,

And although we frankly admit that we have never been
perfectly satisfied as to the constitutional validity of the
power involved and considered in the case of' The city
of Lexington vs MQuUlon's heirs, supra, yet still feel-
ing, as we did when we decided that case, that we are not
able to perceive clearly or to prove satisfactorily that the
Legislature, in enacting the 11th section of the charter of
Lexington, transcended the boundaries of legislative
power prescribed by the supreme organic law of the State,
it does seem to us that we should be justly chargable
with wandering from the appropriate spliere of the j'tdi-
ciary department, were we, by a subtle elaboration of ab-
stract principles and metaphysical doubts and difficulties,
to endeavor to show that such a power may be question-
able, and on such unstable and unjudicial ground, to defy
and overrule the public will, as clearly announced by the
legislative organ. Whenever this Court shall be well
convinced that a legislative act is unconstitutional, it
should not hesitate to pronounce it so, and therefore, to
disregard it as void. But the policy and justice of legis-
lation belong, not to judicial but to legislative discretion.
And to merely doubt legislative powQr is not enough to
justify judicial resistance.

We do not feel inclined, therefore, to retract or essen-
tially qualify the opinion in the case of The cUy of Lex-

FALL TERM 1841. 179

ington vs M QutllorCs keirs, neither subsequent reflection Tire city of Lou-
nor argument having, in any degree, shaken our judg- vs

meats as to the correctness of it. ~ — - — l

In that opinion we suggested that, so far as improve- Wa^Lir«,cited
meni of streets may be concerned, the charter had virtually (Somnus^'^^nd
suhdivided the city into subordinate quasi municipalities ?-"«» and a cave
or communities, each consisting of the lot holders in a withstaading.
defined square — and is not this substantially true? Does For the Legiaia-
not the charter of each of the cities of Lexington and f"'^® ^^ author-

*-* ize a majority of

Louisville, authorize "the owners of a majority of lots the owners ot

or parts of lots fronting on any square," to require the in Lo°uisWi?e"*or

improvement of any street bounding their square, at the cWe"iha°°cwtaSi

expense of all the owners of ground on their portion of grading and im-

that street, and also authorize the mayor and council, by oe done at the*

unanimous vote in council, . to make the like improve- fot^^'hofdere ^r

ment of fractions of streets by squares, at the like distrib- ^^latbythedecia-

, '' * ion ot the unan-

utive cost of the local proprietors? And in this anoma- imousroteofUie

, .*. ^it-j. _i A* J* mayor and coun-

lous provision, in one aspect of it so democratic and m cii, such im-
the other so carefully guarded against oppression or gross Ee^^S^"^*/]
injustice, we have been unable to perceive any suiBcient not unconsUtu-
ground for deciding that the fundamental law of the State
has been violated ; and we presume that, in the prudent
exercise of this police authority, unreasonable inequality
of bnrthen will rarely, if ever, be imposed, considering
the past and prospective improvement of the several
squares in the same prescribed mode.

But in this case, on a bill filed by a contractor against
several owners of ground on a street fronting their square
in Louisville, for enforcing payment of the sums assessed
against them respectively, for improving that portion of
the street without their consent, but under an ordinance
of the mayor and council, the Chancellor decided that
the provision in the charter which purports to authorize
the imposition of such a local burthen is unconstitutional,
and, therefore, he dismissed the bill as against the propri-
etors and rendered a decree in the contractor's favor
against the corporation itself, which was also a party de-
fendant.

And, in that opinion, the learned Chancellor, in criti-
cising, as he was pleased to do, the suggestion as to the
subdivision, as just defined, of the aggregate municipali-

180 BEN. MONROE'S REPORTS.

Tnom o» Lo»- ^y^ hqJ characterising such a corporation as Briarian,

V8 thought fit to illustrate his conviction of its absurdity, ia
^^"^^'- the following manner: '*But as the giant Briarius of

"fifty heads!! was buried under Mount JEtna for his
''crime in assisting the Giants against the Gods, so this
"gigantic corporation of more than one hundred and fifty
"heads, (son of Somnus and Luna) ought to be buried un-
"der poppies in a cave, where the sun never penetrates,
"for warring against the constitution and common sense.'*
We could not wander so far from the judicial path as to
reply to the venerable Chancellor's misapplied apologue,
from the most fanciful of Grecian poets of old; we have
thought proper to quote, it for publication in our legal
reports, only as an illustrative episode to a constitutional
argument by a patriarchal jurist. But, not acknowledg-
ing mythology to be law nor Hesiod to be authoritative on
a question of political power in Kentucky, we must still
adhere to the opinion in The City of Lexington vs
M QuHlorCs heirs, Somnus and Luna, and the poppies,
and even cave, in terrorem, notwithstanding.

But the order for giading the street in this case, does
not expressly show that it was adopted "by the unani-
mous consent of the mayor and councilmen," in council,
and, on this ground also, the Chancellor has decided that
no legal authority for the graduation has been shown.
The ebttrter re- There is neither any direct allegation nor extraneous
m A^SS^'SiJS proof of such unanimity, and without an unanimous vote
cduncU to make of all the couDcilmen and the mayor in council, the order

an OTdinance; i j •! m •

the allegation was illegal and void. This is one of the chief conserva-
inSe'^^ "^Sie tive principles of the charter on this important subject,
?a'??\rthnbl ^°^ should, therefore, be strictly enforced. The bill,
seneeofproofto however, alleges that the order was "duly made," the
deeme/^'prima copy of it, as exhibited, imports that it was made in coun-
SSSffh wtt cil' "by the raayorandcouncil,"andtheanswers, though
ordinance may they deny the constitutional validity of it on other grounds,

do not suggest any doubt as to a want of the required
unanimity.

Upon such a bill and such answers, we are of the opin-
ion that the order, as exhibited, should, prima facie, be
presumed to have been made in the mode prescribed by
the charter. As functionaries, acting openly for the wel-

FALL TERM 1841. 181

fare of the local public and under official responsibility, TMLcmroFLow-
the acts of the mayor and council should, in some de- «•

HvA'vr 0^ til

gree, be accredited as regular and legal: usurpation with- L.

ootaa apparent motive, should not be presumed; una-
nimity was indispensable to the legal authority to make
the ordei — ^the order was made "by the mayor and coun-
cil/' and, therefore, upon the pleadings in the case, we
feel authorized to piesume that the order was made by
the unanimous vote of the mayor and' councilmen "in
council:" Angel on Corporations, 290; Commonwealth
V8 Wtlftr, 3 Serg. and Rawle, 29.

The order, however, as entered on the municipal jour-
nal, is not conclusive. It may be impeached and shown»
by extraneous proof, to be void for want of the unanimi-
ty required by the charter; for, though the entries in the
corporation books may be evidence against the corpora-
tors, it is not conclusive: Angel, 289-91, and the case
of Sf. Mary's Church, 7 Sergt. and Rawle, 630.

Nor do we concur with the Chancellor in the opinion
that there was no sufficient proof that the sixeei was le-
gally established, or was within the jurisdiction of the
city authorities; an order for opening it had been made
upon notice to Cosby, who held the only beneficial inter-
est in the ground, and it has since been recognized as a
street and used as such by the holders of the property on
each border of it. All this is, we think, sufficient for
this case.

The necessary consequence of the foregoing view of
the case is that, as the local law authorized a bill in chan-
cery by the contractor against all recusant lot holders for
their distributive portions of the price of his work on
the street opposite their squares, there is error in the de-
cree dismissing the bill against them in this case, and in
rendering a decree against the corporation — the contract
binding the mayor and council only to make an assess-
ment and give orders on the proprietors, as they had done
before the bill was filed.

The contract was for the cutting and grading of the Grading and re-
street "preparatory to paving," and stipulated for the pay- 26^"ftntt^ yel
ment of 25 cents "per square yard,'' for cutting, grading '^^1^^ ^f£y
and removing the dirt. That portion of the street asses* y^^^

182 BEN. MONROE'S REPORTS.

'^^f^f^V^^' sed in this case, was 490 by 90 feet, and the width of an

UVILLB

w intersecting street in addition thereto. The excavation

; '—' was from five to seven feet, and the city engineer assessed

the total contract price therefor at $3024 75, the whole of
which, excepting so much only as was allowed for the in-
tersecting street, was distributed pro rata, among the
owners of ground on each border of the street.

But the Chancellor, construing the contract as entitling
the undertaker tc^ only 25 cents "per square yard," ac-
cording to superficial mensuration, reduced ,the assess-
ment to $1200, that sum being 25 cents a yard for the
superficial contents of 490 by 90 feet. A square yard,
when applied to a surface, means, of couise, superficial
measure, but when applied to a solid, it might and gen-
erally would import solid measure or a yard every way,
according to the subject of mensuration; and, therefore,
as an excavation of unascertained extent in depth was
the subject matter of the contract in this case, the ''square
yard," though abstractly it would mean a superficial yard,
may have been, and probably was, intended to mean,
synonimously with cubic yard, the square yard or yard
every way of the solid contents of the excavated ground.
And this interpretation would be fortified by the fact that
the mayor and council and the city engineer seem to have
so understood the contract.

But, as this subject is one, concerning which there may
be some latent doubt, and as, moreover, it was not di-
rectly litigated in the Court below, and the cause will be
remanded, we will not now conclude any further and ex-
traneous proof. We here deem it but prudent to suggest
that a gross abuse of a just and provident discretion,
either in agreeing to allow to a stranger, as undertaker,
an exorbitant compensation or in refusing to permit the
local proprietors to do each his distributive portion of the
required work, if they or any of them propose to do so
and offer a satisfactory guaranty thereof, might furnish
some ground to a court of equity for resisting the stran-
ger's prayer for enforcing the statutory lien against the
proprietors, or for reducing the amount and remitting the
complainant to the corporation for what he may lose
thereby in his suit against the proprietors.

FALL TERM 1841.

183

We will only add that, in distributing the burthen of Duvall
the entire cost of the excavation, each lot-holder on the WAeeBMM etai
squares divided by the graded street should be required
to pay, not one half of the cost of the grade opposite to
bis ground, but his aliquot portion of the whole cost esti-
mated according to the relative extent of his lot on the
street; and also, that although the mayor and council are
the final judges of the utility of the prescribed improve-
ment, yet, if any of the proprietors have been damnified,
bis remedy, if any, is by action and not by resisting the
enforcement of the order for graduation.

Decree reversed and cause remanded, for such further
proceedings and decree as may be proper, according to
the principles of this opinion.

Owdey for plaintiff; Guthrie for defendant; Pirile for
the owners of lots.

Duvall vs Waggener et al. Chajtcbry.

Error to the Russbix CrRcuiT. Case 63.

Sale under execution. Mortgagor and Mortgagee. Proud.

JoDGE EwxiTG deUvered the Opinion of the Court Lecmber 2L

Ak execution issued on a replevin bond, against E. The caae stated.
M. Waggener and his sureties, in favor of E. & E. Creel,
endorsed for the benefit of Duvall, which was levied
upon a house and lot in Coluiribia, as the property of
E. M. Waggener, which was sold and purchased by Wm.
Owens, in June 1822, at $3,610 90, the full amount of
the execution and costs. Owens was the attorney, and
cliimed to be the agent of Duvall in the purchase, and
by endorsement on the execution, set over the purchase
to him, and the execution was returned satisfied.

Prior to the emanation of the execution, Waggener
had mortgaged the house and lot to Walker and Mont-
gomery, his brother-in-laws, to indemnify them as his
soreties in bank for $2000, and after the sale and pur-
chase by Owens, the mortgage was assigned to B. F.
Waggener, in consideration of his assuming on himself

184 BEN. MONROE'S REPORTS.

DinriLx, the responsibilities of Walker and Montgomery in the
WABomtmHal bank, and he filed bis bill against his brother, £. M.

Waggener, and Walker and Montgomery, who answered
forthwith, and a consent decree was rendered in June,
1823, under which the house and lot was sold, and B.
F. Waggener became the purchaser at $1000, and a con-
veyance was made to him by the commissioner. In
March. 1824, Duvall filed his bill against E. M. Waggen-
er and others, on the foregoing facts, charging evasively,
the want of authority in Owens to buy in his name; also,
charging fraud in the mortgage and proceedings on it;
fraud in the sale, and imposition practiced upon Owens,
and specifically charging, as an inducement to his pur-
chase, a promise on the part of Waggener and the mort-
gagees, to release the mortgage, and praying a rescision
of the sale, and payment of the money to him, or a re-
lease of the mortgage and confirmation of the title in
him, and surrender of the possession, and for general re-
lief. An amended bill charged that E. M. Waggener
had acquired the title to the lot since the commence-
ment of the suit, by purchase from a sub-purchaser, from
B. F: Waggener, which E. M. Waggener by answer ad-
mitted, and profiered to surrender the same to the com-
plainant, upon his paying 3500 which he gave for the
property, and all costs and expenses.

Upon the hearing, the complainant's bill was dismis-
sed, and he has brought the case to this Court for revis-
ion.

The representatives of several of the parties original-
ly made defendants, have not been brought before the
Court. We think it unnecessary to delay the case lon-
ger for that purpose — the two Creels and Bell were only
made parties, the former as assignors of the judgment,
the latter as assignee from Duvall, for the mere purpose
of collection, and all of them in their lifetime answered
the bill acknowledging the right of the complainant.
„ ,^ . Nor is it necessary for the purposes of the decree which

By the purchase . . ^ . • , ^ , . , . . <. itr ^*

of proDerty^ by we have determmed to render, to bring the heir of Moot^
Stoniej Sdet gomery or the sureties in the replevin bond before the

S^Swc^on"^ ^^^' "^ "®^*®' ^^ ^^^ ^^ ^ affected by it. The
dcred to be re- proof is not sufficient against the positive denial of

FALL TERiM 1841. 186

Walker, to sustain the alleged fraud against the mort- Dutall
gagees, Walker and Montgomery, to release their mort- WAeeBwiHetq/.
gage, or to involve them in the fraud, by which it is turned satiified;
charged, that Owens was seduced into the purchase of dbc^lSST^d
the house and lot, and the sureties are not even charged ^^ .Y*"> ^L^hi
with being cognizant or participant, or with having any adjasiedbetweau
notice of the arrangement by which the purchase was u>mey, aiid1ih»i^
superinduced. By the levy and sale the replevin bond ^^*
was satisfied, and the sureties discharged from all fur-
ther responsibility upon it, and a court of equity will
not, under the circumstances of this case, resuscitate
the complainant's demand against them. Owens did
purchase the house and lot for the full amount of the ex«
ecution which issued on the bond, and the execution has
been returned satisfied. He had a' right to purchase
either as individual or as agent, and whether he purchas-
ed in the one or the other character, or had or had not
authority to set over the purchase to the complainant in
satifaction of his debt, must be settled by the complain-
ant with Owens and the SheriflC, and cannot affect the
sureties, who had no knowledge of, or concern with it.

And if Owens, as the agent of the complainant, made
an arrangement with the principal debtor without con-
sulting the sureties, whereby the latter undertook to dis-
charge the property from the mortgage of Walker and
Montgomery, upon terms agreed on between bim and
Owens, then must his principal look to that arrangement
and the purchase under it, and cannot revive his claim
against the sureties.

Nor can the complainant obtain relief against Owens No rtlief gmrt*
in this snit, upon the ground of his want of authority to fenSSISTwiUiout
purchase in his name. The allegation of want of an- »P»r»»*>'i*»
thority charged in the bill, is vague and indefinite, and
seems to be casually thrown in, and more as a make-
weight, and as ancillary to the remedy sought against
Waggener, than as a specific ground for relief against
Owens, and from the manner in which it is made, a
strong implication arises, that Owens had authority to
purchase. The allegation is that "he never authorized
any person to purchase said property at the price and on the
drifts upon which said purchase was made." A general
Vol: n. 24

186 BEN. MONROE'S REPORTS.

DuTALL pbwer to superintend the execution and purchase, at the
WA99zvBSi€taL discretion of the agent, might have been given, and yet

the allegation be true, that a power was not given to
purchase at the precise price and upon the precise terms
at which it was made; nor could the price and terms be
known until after the purchase should be made ; and
no prayer is made for relief against Owens. Besides,
Owens was the attorney at law who recovered the judg-
ment, and there is proof tending to the conclusion that
he was the attorney in fact, authorized to purchase in the
name of the complainant.
- . But upon the merits of the case, and against Waggen-
•zecation beiDsr er, the principal defendant and debtor, we think the
esutltprocurfng complainant is entitled to some relief. He has not ob-
SeT"^ofagen\^^^^^^ tained one dollar in either money or property, for a just
buy it, under debt of upwards of $3,600; and if he fails to recover
moTo the incum- the house and lot, he is tricked out of all forever. It is
ing°to%o°MfafI intrinsically probable that some stratagem or device was

terwarda acauir- ^ggj or inducement held out to Owens to make the Dur-
ing Uie legal li- .... ^

tie, wui be com- chase. Otherwise it is not to be presumed that he would have
Chancellor to re- bid the sum which he bid, which, subject to the mortgage,
OTrohMe!? *"^^ so greatly exceeded the value of the property purchased.

And we think there is enough in the record to satisfy the
Court, that the inducement held out was the promise of
Waggener, the principal debtor, to discharge the house
and lot from the mortgage of Walker and Montgomery,
by the substitution of other property in its place, or
otherwise; and that Owens, placing full confidence in
this promise and in the ability of Waggener to accom-
plish it, from the previous declaration of Walker and
Montgomery, bis relations, with whom it is to be pre-
sumed he had some influence, that they would release,
upon his substitution of other property sufficient to se-
cure them, was induced to purchase at the price which
he bid, which was the full amount of the complainant's
debt and costs. And there was probably an expectation
on the part of Owens, superinduced by the promise of
Waggener, that he would redeem the house and lot at
the expiration of two years, by the payment of the debt
and interest, which he had a right to do by the laws then

FALL TERM 1841. . , 187

in force on the sale of property under mortgage. We Duvali.
are brought to this conclusion by the following facts: Waogesbr et al

These promises and inducements are charged in the
bill, not' only against Waggener, the mortgagor, but
against the mortgagees^, Walker and Montgomery. Wag-
gener denies them in the form in which they are made,
but admits that he did promise Owens, as an inducement
to his purchase, to procure a relinquishment of the mort-
gage, if the complainant "would execute to him as soon
as practicable, bond, or guarantee to him the right of re-
demption according to the act of assembly," and that
Walker and Montgomery had promised him a release,
apon his substituting other property as an indemnity to
them. And Walker admits in his answer that at a plu-
vious attempt at a sale, he declared in the presence of
Owens, that they would release on those terms. Wag-
genet further admits that ' 'he did prevail on the mort-
gagees to assign their mortgage to his brother B. F.
Waggener, on his agreeing to stand in their' place, and
becoming in their stead, responsible as his sureties to
the bank; and that after his brother had become the
purchaser of the house and lot for the debts for which
he became responsible, that he did cherish a hope that
he would be willing to convey to the complainant upon
being completely indemnified for all payments and liabilv
ties" Besides, Owens proves the promise, not only on
Waggener*s part, but also on the part of the mortgagees,
to release the mortgage, and without the condition of a
bond or guarantee to allow a redemption in two years;
but says that Waggener refused to yield the possession
uoder his purchase, stating his intention to redeem and
his right to retain possession. And Alexander Waggener
)>roves that "it was agreed between Owens and the
mortgagees, an^ Waggener, that if Owens would bid the
full amount ot the execution and allow Waggener the
same right of redemption in two years, upon paying the
money and interest, whi^h said Waggener vvould be en-
titled to if the property was sold subject to the mortgage,
that then and in that case, the said mortgagees would re-
lease their mortgage and let the sale take place; but in
a subsequent deposition, taken at the instance of the de-

188 BEN. MONROE'S REPORTS.

DvTAu fendant. he corrects his statement in this^ so far as it
Wamikbb <t a2. respects the agreement on the part of the mortgagees.
^"" Another proves, that he had rented the place from

Owens, and that Waggener refused to yield possession,
claiming the right to redeem in two years, and the right
to retain it on that ground till the two years should ex-
pire, and upon communicating the fact to Owens, he as-
sented to his right.

From these admissions and facts proven, it is evident
that Waggener at least promised to procure a relinquish-
ment of the mortgage, upon the terms of a right reserved
to him to redeem within two years from the sale at most,
to be guarantied by proper instrument of writing, to be
eicecuted in reasonable time, and perhaps upon the un-
derstanding between Owens and him at the time that the
right was reserved, without an undertaking for such an
instrument. But if such written guarantee was to be
given and was not given, it can have no operation as we
conceive, upon the rights of the parties in this case,
whether the complainant or the defendant was to do the
first act; for though at law this technical legal rule might
have effect upon their rights, in chancery time is nev^er
regarded unless it is of the essence of the contract. Be-
sides the execution of a written guarantee would have
been an act of supererogation which would not have se-
cured to the defendant any right which the statute at the
time had not secured to him. For by the statute of 1821 ,
then in force, on the sale of the mortgagor's interest in
real estate mortgaged, he had a right secured to hirn to
redeem within two years, and the right to remain in pos-
session until the two years expired — and if it should be
conceded that he might not have had the right to redeem
under the statute, when the return of the officer did not
show that the sale was made of the equity of redemp*
tion only, and subject to the mortgage, yet he was per-
mitted to enjoy the possession undisturbed by the com-
plainant or any other, by reason of the complainant's de-
falcation, and might have enjoyed the undisturbed pos-
session until the present time, or at any rate for the full
two years, had he complied with his promise to procure
a release of the mortgage. Nor has the complainant

FALL TERM 1841. 189

ever restricted him in the exercise of his right to redeem, Dutau.
and DO doubt would have been gratified at any time within Wam^vek §taL
the two years, and even afterwards, to receive bis money ~~"^
and interest rather than retain the house and lot, which
bad greatly fallen in value, had it been tendered. Whilst,
therefore, he was permitted to enjoy the property, and
was leaping all the benefits which the strongest guaran-
tee in writing could confer, had he paid the mortgage
debts, or otherwise procured a release of the mortgage
according to his promise, instead of procuring his brother
to receive an assignment of the mortgage, the property
coold never have been sold, nor his possession or the
right of the complainant effected, nor the power of either
obstructed in carrying out the contract of the parties.
And if, even after the purchase by his brother, B. F.
Waggener, instead of "cherishing a hope that he would
convey to the complainant upon being completely indem-
nified in all payments and liabilities," it would have
been much more consistent with moral and legal duty
for him to have then indemnified his brother for all pay-
ments and liabilities, and procured him to make a con-
veyance to the complainant in fulfilment of his contiact.
But as it appears by his answer to an amended billi
that he has, since the sale, acquired the title free from
incumbrance, by purchase from a sub-purchaser from his
brother, he now stands in a condition to do that justice
which he should have done in the first instance, and
which, if done, would have had the effect to vest a com-
plete title to the house and lot in the complainant —
namely, to convey the property; and as an indemnity
for his being kept out of it so long, to account for the
rents and waste. And this justice a Court of Chancery
will require him to render, subject however, to a deduc-
tion from the rents and waste of a reasonable compensa-
tion for any necessary repairs or any lasting and valuable
improvements which may have been made upon the
premises, estimated according to equitable principles.
The account to be taken as (well while the possession
remained in others as in the defendant, the account for
Tent to commence from the expiration of two years from

190 BEN. MONROE'S REPORTS.

DuvALL the purchase by Owens, and the account for waste to
WAooBNBReta/. commence from the sale.

And if he have ^^^ ^^® ^^^'® remained out of him, as the foreclosure
kept the posses- and sale under the mortgage was the effect of his failinfir to

81011, to surren- o o o

der it and ac- procure a release of the mortgage, he would unquestion-

renS) (after two *Wy have been required to refund to the complainant,

Sate'of ^theBa\e' ^^® Consideration of his purchase as his just indemnity

within which for the loss of the property produced by his defalcation,

deemabie under But having acquired a title to the property, he may be

and Mco°Vt also ''equired to convey it and account for rents and waste, and

5^'..^"^®» ?*• can only escabe from this responsibility upon the alter-

ducting fiom the j r r j r

rents and waste, native of refunding the debt and interest, which he may
of "lastii^^ and 7©* do if he SO elects. As the conveyance of the title
provemonis put ^^^ payment fox rent and waste may be most to his ad-
on the property, vantage, he cannot complain; and as the complainant,

by such a decree, will get all he ivould have gotten, in
case the release had been procured, and v^ill, in the rents,
be remunerated for being kept out of possession, he can,
as complainant, equitably ask no more.

The decree of the Circuit Court must be reversed, and
cause remanded, that the defendant be allowed to elect
whether he will pay the debt and interest, or surrender
the house and lot and pay rent and waste as directed;
and if he fails to elect, or fails to pay within reasonable
time to be allowed him, an account is to be taken of rents,
waste, repairs and improvements, as directed in this
opinion, and a decree rendered as well for the balance
of the rents and waste, if any, as for a conveyance of the
house and lot.
Decree ^reversed and cause remanded.
Harlan for plaintiff; Monroe for defendants.

FALL TERM 1841. 191

Combs v$ Tarlton's Adih'rs. and Heirs. Chapccery.

Appeal fbom the Fbankliit Circuit. Case 64.

Vendor and vendee. Specific performance. Merger.

Estoppel.

JcDai EwiKO delivered the opinion of the Court. ' December 24.

TiRLTON*s administrators recovered a judgment against The allegation!
Combs, for nine hundred and seven dollars and fifteen ®^ ^* ^'^^'
cents, the consideration and interest for st breach of cov-
enant by Combs, in his failure to convey 52 acres of
land to their intestate, which he had sold and executed
his bond to convey, which judgment was affirmed by this
Court: a statement of the case will be found in 2 Dana,
464. Upon the return of the cause to the Circuit Court,
Combs filed his bill of injunction in accordance with the
intimations given in the opinion c^s to his retnedy, charg-
ing that his bond for the fifty two acres had been made
the basis of a proceeding in chancery, instituted by Tarl-
ton in his lifetime, and revived by his heirs, by the ap-
probation and consent of his administrators, against Mar-
tin Nail, and revived against his heirs, whereby the heira
of Tarlton, or two of them, by the consent of the rest,
bad obtained a title from Nail's heirs for the land em-
braced in Combs' bond ; and prays a perpetuation of his
injunction against the judgment at law, or a decree for the
conveyance of the title to him, with the rents of the
same. »

The administrators and heiis of Tarlton answered, the ^eaubitanceof
former admitting that the procedure and decree for a title
was had by their consent, but all concurred in alleging
that Tarlton, holding not only the bond upon Combs, but
other bonds upon others, for several portions of a tract of
400 acres of ^land, which had been purchased by Joseph
Fenwick from Martin Nail and filed his bill against Nail's
heirs for a title, which was revived by his heirs after his
death, but no part of the consideration having been paid
by Fenwick to Nail or his representatives, they were
wholy nnable to obtain a title, upon the bond of Combs

192 BEN. MONROE'S REPORTS.

CoMM or the others which he held, and being so utlable to get a
Tablton's ad's, title, they made a compromise with Nail's heirs, bj
^'"^ ""''^- which, for the consideration of $2000 paid them, and
other considerations, a decree was entered in their favor
for a title to the whole, for which the bonds were held,
including the 52 acres purchased from Combs, and that
Combs had rescinded his contract with Walker, from
whom he had purchased, and received back the consid-
eration.
-. , It appears that Fenwick purchased 400 acres of land

Facts appearing * ' '

in the record. from Nail, and took his bond for a conveyance, and exe-
cuted his notes for the consideration, in 1790. That
Fenwick sold 90 acres of his purchase to Walker, who
sold to Combs, who sold 52 acres to Tarlton, and bonds
were executed by the several vendors for a title; that
Fenwick also sold 170 acres of his purchase from Nail,
to Williams, who sold and assigned Fenwick's bond for
' a title to Hendrick, who sold and assigned 19| acres of
the quantity to Twyman, and the residue, namely, 150t
acres to Tarlton; that Fenwick had deposited Williams*
bond for £320, the consideration of his purchase, in the
hands of Nail as a pledge or collateral security for that
amount of the consideration owing by him to Nail, also
a bond on one Holton; that Hendrick, in his purchase
from Williams, bound himself to pay Williams' bond
and release him from responsibility on account of it, and
Twyman and Tarlton, in their purchase from Hendrick,
agreed and bound themselves, each, to pay and satisfy
Williams' bond deposited with Nail, rateably with the
quantity of land which each hadipurchased from Hen-
drick, and for which Fenwick's bond had been assigned
to them. Williams' bond for £320 bore interest from
the Ist February, 1795, and the consent decree was ren-
dered on the 3d of April, 1829, in favor of Tarlton's
heirs, whereby they obtained a title for the whole for
which they set up claim as sub-purchaser, including the
62 acres purchased from Combs, upon the terms of pay-
ing $2000, and surrendering all claim against Nail's heirs
for $415, which the administrators of Mrs. Nail had re-
covered against Tarlton's heirs for dower, also two small
notes held by Tarlton in his lifetime, against Nail.

FALL TERM 1841. 193

The only foundation of equity set up by Tarllon's heirs Comb»
against Nail's heirs, Combs and others, for a title to the Taklton's ad'i.
62 acres, was Combs* bond, and the only impediment to and hbibs.
a title was the non-payment of the consic^eration by Fen* a purchaser of a
wick. Of that consideration Tarlton was bound, by his iM^d^^hMno^right
contract with Hendrick, to pay a rateable part of £320 ^^^^IJ^^^^
and interest, as 1501 is to 191. Had he paid it to that vendor and pay
extent, the impediment would have been removed. And duefrom^eori^
from the estimate which we have made, it appears that fhMge*°Se ' w^
the amount of principal and interest up to the date of t^^^l ^^ ""^h

bond lor sucli ad-

the consent decree, which he was bound to pay to obtam Tancement.
a title to the 150f acres, exceeds the amount of the $2000
which his lepresentatives did pay, and also the dower
claim and the two small notes and interest, which they
held upon Nail — so that they paid nothing for the 62
acres; have had the possession of it under Combs' equity
for about forty years, and have, upon that equity alone,
obtained a perfect title from Nail's heirs, from whose an-
cestor the equity, by intermediate purchasers through
Combs, was derived. Indeed, as they obtained their
equity and the possession from Combs, they ought not to
ha?e made a new contract for the title, upon terms sub-
jecting him to an increased burthen, without consulting
him, and if they did, as the necessary means of perfect-
ing their title and quieting their possession, upon no prin-
ciple could they subject him to a greater amount of the
burthen than a rateable sum of the excess which Ihey had
to pay, over that which they were bound to pay, which
the fifty-two acres bore to the whole quantity of land
which they obtained the title for. He might have been ^"h**^*!Si°'iSf
equitably bound to pay his rateable share of the amount, equitably bound
with the other sub-purchasers from Fen wick, necessarily unaraytj^end-
expended in extinguishing the original consideration to the tTue '°*^'*'"*^
Nail, produced by the defalcation of Fenwick, after ap-
plying to that object the amount due on Williams' bond
deposited with Nail for that purpose, and which it was
the duty of Tarlton's representatives to pay. But if the
payment of that bond and interest satisfied the whole
consideration, or so much thereof as fell upon the claims
held by Tarlton's heirs, including Combs' purofaase, then
Vol. II. 25 •

194 BEN. MONROE'S REPORTS.

Combs Combs or any of the sub-purehasers, were not liable to
Tablton's ad's, pay any thing.

•^^° ^^'^^' • Had Tarlton lived he would have had his election to
The assignee of proceed in chancery upon the bond of Combs for a spe-
conveyince' ^^^f cific enforcement of the title, or at law for damages for a
landhashiseiec- breach of Covenant, and his election and enforcement of

tion lo sue in ' i t j i

chancery for a one remedy, would merge the bond and preclude him
twn^ or a^t'^iaw Trom resorting to the other upon it. So that, had he sue-
a*fanure^ircon- cooded in enforcing the contract and obtaining a title upon
vey, andhis elec- (1^^ bond, he could not afterwards have maintained a suit

tiouand pursuit , « , tt i i i i i i

of one remedy at law for damages. Had he elected to sue at law and
bond an"lar the recovered damages, such recovery would be a merger of
^^^^' the bond and a cancelment of the contract, and upon the

payment of the amount Combs would have a right to be

restored to the land, and to an account for rents, if any,

at least equivalent to the interest upon the consideration

refunded. If in electing to enforce the contract, Tarlton

a (wnd^suing in had to pay, as the necessary means to obtain a title, more

apccmc^ cxccu* ^^^^ ^^ wdisbound to pay, then Combs, who would have

tion, being called been a necossary party, should have been made to contrib-

to pay more to ute his rateable share of the increased burthen. But

shouW^make his that contribution should have been decreed in the same

Md^equirrhim ^^^^' ^"^ *^® failure to obtain it, would by no means have

to mie such entitled Tarlton to resort to a suit at law upon the bond,

Yance to relieve as Still Outstanding. Had he not obtained a contribution

faUto^^do so ^n ^^ ^^^ Original suit, and there was nothing in the decree

that suit, he can- to bar it, he miffht perhaps have resorted to a suit in

not afterwards 11, « 1

sue on the bond chancery, based upon that proceeding, to obtain it. But

and recover such 1 ^ j ^ 1 . • . • 1 -»j

advance. as no advancement was made to obtain a title over and

above what he was bound to pay, he could not be enti-
tled to contribution from Combs either in chancery or at
law.
Though an un- Though by the death of Tarlton a difficulty and uncer-
arise "* whether tain ty might arise, as to whether the administrators or
Sror'^i^hei^s" ^^^^^8 might be entitled to remedy upon the bond; this
•houid proceed should never have the effect of placing Combs in a worse

on a bond given * i 1 , , 1 . . , • s

for the convey- condition. And had the administrators been parties to
yeMf °he heir the suit for a specific enforcement, they would unques-
Sr2erthe°admtnl ^^^nably have been bared, as well as their intestate, from
istrator being a afterwards maintaining a suit at law upon the bond; and

party, the admin- • /• 1 • «

istrator cannot " even their assent to the proceeding of the heirs, upon

FALL TERM 1641. 195

the bond, might not have the same effect even at law, combs
which we are not now prepared to concede, it certainly Tahlton's ad*8.
should have the effect, in chancery, of restraining them ' andheihb.
from the enforcement of the judgment, or at least so ceed^" t law.'
much thereof as was not necessary to cover any equitable lany^^yeUf he
contribution which should have been made by Combs, assent, may it
m removmg any mcumbrance from the title, or obstruc- same effect eveu
tioQ to its enforcement. He unquestionably cannot, by *^^ ^«^'--^'''
theconfiict of remedies between the heirs and adminis-
trators, be subjected to the double loss of both land and
consideration.

Nor can we perceive any thing in the objection taken
by the counsel for Tarlton's representatives, founded upon
the skeleton record exhibited between Combs and Walk-
er, tending to show a partial rescision of the contract
between them, whereby Combs derived his equity to the
land sold to Tarlton, that can be made available to de-
prive Combs of the relief w^hich he seeks.

It seems that both Combs and Walker were parties to
the suit instituted by Tarlton against Nail and others for
a title. That after the institution of that suit, and while
the same was pending, Combs commenced a suit in
chancery against Walker, to which Tarlton was not a
party, for the enforcement of his title to the 90 acres, of
which the S2 sold to Tarlton was a part, or to rescind
the contract; and that such proceedings were had as to
obtain a decree rescinding the contract as to forty-seven
and a half acres, and an order restoring him to the pos-
session and title of that number of acres out of the lOOi
acres which Combs had given in exchange to Walker for
the 90 acres, and a decree for a conveyance by Nail's
heirs, of the residue, or 424 acres of the 90. But this
decree seems never to, have been carried into execution
or a conveyance made by Nail's heirs. And afterwards,
the consent decree was obtained by Tarlton's heirs against
Nail's heirs, and a conveyance made accordingly; so that
they became invested with the legal title notwithstanding
the proceeding and decree in favor of Combs. It may
also be inferred, from several deeds exhibited in the re-
cord, that Combs has made deeds to several of the Bran-
ham's of perhaps the whole of the 100* acres which he

196

BEN. MONROE'S REPORTS.

WiLLUMs'AD'E. gavo 111 exchango to Walker. But this is not clearly as-
V8 ^ certaioable, as there is no proof of identity. But cou-

-. ? ceding the parcels conveyed to be parcels of the 100*

acres, we cannot perceive how these facts can affect the
complainant's equity, or be made available by the defen-
dants against it.

Matters inur ^^^' '^^^Y ^^^^ matters inter alios acta, by which the
aUog acta BO ey- interest of Tarlton's representatives were in no wise af-
fected, and of which they should not now be allowed to
take advantage.

2d. They took place and were transacted during the
pendency of their suit, and could not and did not affect
their equity, or oppose any obstruction to their enforce-
ment of the title which they have perfected by a convey,
ance from Nail's heirs, with whom it rested. Walker's
representatives alone have a right to complain, between
whom and Combs this matter should be permitted to
rest.

It is, therefore, the opinion of this • Court, that the de-
cree of the Circuit Court be reversed and cause remand-
ed, that a decree may be rendered perpetuating the injunc-
tion against the whole of the judgment at law except the
costs, and decreeing to the complainant his costs in this
^ suit; and the appellant is entitled to his costs in this

Court.

Morehead <^ Reed for appellant; Todd for appellees.

Chiucrry. Williams' Adm'r. and Heirs vs Starke &

Ewing.

Case 66. Error to the Washington Circuit.

Rescision of contracts. Trustee. Vendor and Vendee,

Jnoes Mabshall delivered Uie Opinion of the Court

The principal question in this case is, whether Ewing,
having purchased a tract of land from Starke with a
knowledge that Starke had previously contracted to sell
and convey the same land to Williams, should be com.
pelled, under the circumstances hereafter to be stated, to

Dsetmher 24.

The queition
stated*

FALL TERM 1841. 197

surrender his purchase to the heirs of Williams, in whose Willumi' .u>*k.

* AND HBIBfl.

name with that of the administrator, the suit was revived va

after his death.

Before Ewing purchased, Williams had, on the alleged a yendee of land

ground of Starke's refusal to deliver possession according ^^% ^ue *for

to the contract, and for other alleged reasons, openly re- Sj^J'^^JJi^ j*"^

jected the purchase, and refused to perform on his part, ch&nceiy for &

which was known to Ewing; and on the 29th of Octo- conuacr for the

bcr, 1832, within ten days after Ewing^s purchase, Wil- S, "[f^n^^^^g^^^^^^^^^

liams filed this bill praying for a rescision and for re- rnitted lo change

*^ ^ ^ the prayer of hie

payment of a small part of the purchase money alleged bill and claim a

to have been paid. Under these circumstances the pur- tion" thereof °to

chase of Ewing, who had nothing to do with the non- ^^^ ^JXwqucSt

performance of the contract between Starke and Wil- purchaser—
liams, cannot be regarded as fraudulent; and it is at Thon^^h such

least questionable whether Williams would have been Eave^"%feScd

permitted to defeat Ewing's purchase in the first instance, ^.^J^ 'e's ^'to

since it would seem to have been made upon the faith surrender his

of Williams's rejection of his own contract. complainant, af-

Bat Starke, by his answers to Ewing's bill filed in fiYcdrdd^TJ

October, 1833, and May, 1834, professed an ability and ??»" to signify

^•11- 4 1 wv ju I * Tir-ii- '^^^ willingness

wilimgness to comply with the sale to Williams, upon to accept a spe-

his complying with the terms of the contract on his part, and°thcn,^^after

and protested against a rescision, and by an amended cn*ilr?aiue^&c'

bill filed in May, 1836, Williams professes himself wil- amended, s'i^ni-

ling to complete the contract, and prays for a specific nesf to^ perfect

execution. In answer to which, Statke alleges that he {he lasTpiyme^

had sold the land to another, and could not execute the ^^"^^s ^ feiien

due, and being

contract with Williams. Ewing was aftetwards made a siui unpaid—it

defendant, and relief was prayed against him on the theconufctT—

ground of his knowledge of the sale to Williams, and ^ purchased^ I

on the further ((round that the answer of Starke, ofienns: iF*®' P^ ^^^^ °^ .

4 1 . .u X 1 i!i J Mu .u 1 1 J 5 S. paid «100 of

to complete that sale, was filed with the knowledge and the price, in a

consent, and by the advice of Ewing; and it is now iy^thje&tene^t^

contended that Ewing's subsequent refusal to give up his ?"®J^£ * rescia-

purchase, when more than two years after Starke's of Uie'se facts,

first answer was filed, the complainant says he is willing fan'd of^. and

to take the land, is inequitable and unjust, if notfraudu- ffJS.*^w?^"en

lent. ^1^' ^i' bUl for

T 1 . 1 • I I'll . rescision, Oct.

Looking to the evidence, we think there is no reason lO, 1832, s. files

to doubt that when Ewing assented to Starke's offer of oct YaS^ and

198 BEN. MONROE'S REPORTS.

WuxLiMs* ad'il completing the contract with the complainant, be was in

v8 ' fact, indifferent about his own purchase, and willing to

Starkba wing, gj^^ it up; and even if this were not so, we should not

^^ E. ^professes doubt that if, in consequence of that offer, and as soon
a wiUingncas to ^s it was made or within reasonable time, the complain-

execute the con- .j,. •. ii-.

uact; in May, ant had paid his money or entered into an obligation

his amended bm therefor, or perhaps if he had merely withdrawn bis

cifir^Mecution: pr^iy^r ^^^ ^ rescision, and accepted the offer of a specific

the last payment execution and prayed for it, neither Starke nor Ewing

having become ,,,, , ., t» !•

due and not should have been permitted to retract. But regarding
note^ or security the offer of Starke as the offer of Ewing, the failure of
^^^had^no^right Williams to accept it in reasonable time might properly
to claim a con- be considered by Ewing as a refusal — it was in point of

▼fivance havmsr ^ u a

trifled with his law a refusal. Williams had no right, in consequence
f^Triie1!?^1n merely of such an offer, to hold the execution of Ewing^s
value in posses- contract in suspense for an indefinite period, until he

should see whether new circumstances might not arise
which would induce him to cliange his own determina-
tion and accept the execution of his own contract which
he had rejected in the country, and for the rescision of
which he had sought the aid of the Court. Nor had he
a right to suppose that Ewing would, in consequence of
an unaccepted offer, feel bound to discontinue at once
the enjoyment of such rights as he had under his pur-
chase, or suspend the performance of any duty imposed
upon him by its terms. The law did not require this of
him, nor did it require him either to renew or to contin-
ue his offer; nor is it regarded in view of the law as be-
ing continued, without any actual renewal of it, after a
reasonable opportunity for its acceptance has been al-
lowed, without any indication that it was or would be
acceded to.

When, therefore, after the lapse of more than two
years from the offer of Starke in his first answer, when
in the interval, Ewing had rightfully gone on in improv-
ing the land, and in paying the instalments of the pur-
chase money as they came due; and when from extra-
neous causes, the value of the land had more than doub-
led itself, Williams, under the pretext of accepting
Starke's offer, indicated for the first time a willingness
to take the land, and abandoning his prayer for a rescis-

FALL TERM 1841/ 199

ion, prayed for a specific execution; it was too late for Williams' ad* r.

AND HEIRS

him to aflfect the rights of Ewmg by thus shifting his w

... m Ai I J. £* '± -r^ * X StaRKBaEwTNO.

own position. To say the least of it, Ewing was not
then bound by his offer made through Slarke two years
before; and the same circumstances which had operated
to change the determination of Williams, might be al-
lowed to have a similar effect upon the will of Ewing,
even if there had not been additional circumstances af-
fecting his choice, which could not be disregarded either
by himself in making it freely, or by a Court of Equity
in compelling it. Independently of bis identification
with the land by his long enjoyment of it, by improve-
ments which he had made, and by the incorporation of
his own labor with it, he had rightfully paid his money
for it, and owing to circumstances which need not be
detailed, his only probable source of remuneration, if bis
purchase were abandoned or taken from him, would have
been the personal ability of Starke, who was in an em-
barrassed condition if not insolvent. Under all these
considerations, we are of opinion that when Williams
filed his amended bill praying for a specific execution,
and when he made Ewing a defendant, he had no equity
to compel a surrender of Ewing's purchase, even if he
could at that time have complied strictly with the terms
of his own contract.

Bat before be filed his amended bill praying for a spe-
cific execution, in May, 1836, the day fixed in his con-
tract with Starke for the final payment of the purchase
money (the 1st of March, 1836,) had passed, and up to
the filing of this amendment, he had not only made no
payment (except of the $100 paid a few weeks after the
date of his purchase) but had continually refused even
to execute a note for the purchase money, with or without
the security prescribed by the contract, and was praying
for a rescision. In the mean time, before this change of
attitade, the land had risen greatly in value, and we are
not prepared to say, that even if Ewing's interest had
not been involved, a court of equity should have en-
forced a specific execution against the consent of Starke,
though be had in his first answers expressed a desire to
have the contract complied with. For although it be

200

BEN. MONROE'S REPORTS.

Gray
Gray's hbiss.

true that a court of equity doe^ not in general regard
time as of the essence of such a contract, it is also true
in general, that the Court will not enforce a specific exe*
cution in favor of a complainant who has prevaricated
and trifled with the contract ; and it might not be inequi-
table to refuse it on the prayer of one who, after repu-
diating the contract upon trivial objections, and actually
going into the Court for a rescision, and maintaining that
attitude for years, and until after the time of final per-
formance has expired, is induced by an increase in the
value of the land, to change his attitude and pray for a
specific execution.

Without pursuing the subject farther, we are of opinion
that the Court properly refused to enforce the contract
between \yilliams and Starke, and that there was no
error in rescinding that contract.

Wherefore the decree is aflSrraed.

McHenry for plaintiffs ; Morehead ^ Reed for defen-
dants.

Chancery.
Case 66.

December 26.

Gray v$ Gray's Heirs.

Error to the Todd Circuit.
Fraud, Presumption, Evidence,

Chief Justice Robbbtson delivered the Opinion of the Court— Judge

Ewing did not sit in this cose.

The case stated. The only question we shall consider in this case is,

whether the plaintiff in error, who was complainant be-
low, claiming under the junior grant founded on a survey,
including nearly 1100 acres, made on a vague County
Court certificate, prior to the year 1808, is entitled to a
decree for a surrender of the possession and a relinquish-
ment of the better legal title by the defendants, whose
ancestor obtained the elder grant upon a removed certifi-
cate, surveyed in the year 1809, so as to interfere with
the plaintiff's survey as made.

As the plaintiff^s entry had neither sufficient specialty
nor notoriety, he cannot be entitled to the relief sought
by his bill, unless he can be sustained in his prayer by

FALL TERM 1841. 201

an act of 1808, which provided that, ''from and after the Gkay
passage (thereoQ no removed certificate shall be located GRAr'a mss.
on any survey made by virtue of any certificate heretofore
granted."

In Winnvs Davidson, (5 Monroe, 162,) and Under- a snryoy on a
woodvs Crutcher, (7/. /. MarshaU, 529,) this Court ef^orSK
construed that provision as intended to have the effect of JJ^^j ^©f *°Sat
^vlng equitable superiority to a survey on a certificate year, «upeTior in
granted prior to 1808, over a subsequent survey made vey made^suice
since the enactment of that year, even though the first sur- SSagh*tt»*fi?It
vey was on a vague location, or not conformable with the |^ npona Tagno
ceitificate. And on this principle alone the plaintiff in conformabia
error now seeks a reversal of the decree dismissing his ^te. ^ ^^'
bill.

Bat the elder grant, not being void, carries with it not The elder mnt
only the legal title but an intrinsic equity which results SoT^oniy^iS l©^
from it; and this compounded right, fortified by the ac- g^ri^gj* ^[^
tnal possession, should not be divested by a questionable aqcI this com-
equity, and much less by one vitiated by fraud or inval- accompanied

idated by mistake. rho''uiS'n"??^'°.S:

Accordinff to a dictum in Anderson vs Phillips, (5 ▼ested, by any

_ ° j^ » V questionable 6-

Litldl, 302,) the survey for upwards of 1000 acres on a quity, much less
certificate for only 400 acres, should be adjudged, per se, byJraud^oVinval-
fraudulent and void. If this be so, this case is decided. |°J^^ ^^ "*"•
Bat admitting that such an excess may only be some evi-

j ' r ' c r ^ 1- rr A surrey for ujp-

dcncey prima facie, of fraud, or conclusive proof of gross wards of loto
mistake, the consequence in this case must be the same S"cate°for only
to the plaintiff in error, seeking relief in equity against ^facu^^'ioi
the possession and legal title. There is nothing in the sidered 'fraudu^
record which sufficiently, if at all, repels the inference of
fraad on the Commonwealth in the making of the elder
survey; and if there had been no fraud, the mistake is so
obvious and essential as to deprive the plaintiff of all
semblance of equity, unless he had shown, satisfactorily,
that had there been no mistake, and had the survey con-
tained only 400 acres or no extraordinary surplus, the par-
cel of about 170 acres, covered by the elder patent, would
have been included. But this he has not shown. On
the contrary it is rather presumable that this tract of 170
acres is a portion of the surplus, and would not have
been embraced in the survey had there been neither Iiauil
VoL IL Z&

202

CAVrMAll

> Satrs et al.

BEN. MONROFS REPORTS.

nor mistake in making it. Indeed it would be very diffi-
cult in any case, to establish with satisfactory certainty,
any such fact as that which might be necessary to sustain
the plaintiff's prayer for relief.

We are, theiefore, of the opinion that the decree of the
Circuit Court be affirmed.

Cotes (^ Lindscy and Morehead ^ Reed for plaintiff; .
Owsley (oi defendants.

The facts of the
case.

Chahcery. Caufman vs Sayre et al.

Case 67. Error to the Fayette Circuit.

Jurisdiction.

Dttmber 25. Cbuf Jdstiok Bobsstson deUveied the Opinion of the Court.

Catharine M. Caufman having mortgaged a tract of
land in Jefferson county, to David A. Sayre, of Fayette,
for securing the payment of two notes for $1250 each,
one payable October 8, 1840, and the other payable Oc-
tober 8, 1841, Emelius K. Sayre, claiming to be the as-
signee of the said notes, and collateral 'security, filed a
bill in chancery in the Fayette Circuit Court, on the 17th
of October, 1840, against the mortgagor and mortgagee,
alledging the non-payment of the first note, which was
then due, and praying for a foreclosure and sale for the
amount of both notes. A subpoena having been senred
on D. A. Sayre, in Fayette, and on C. M. Caufman, in
Jefferson, and neither of them either answering or appear-
ing, the Court, at the December term, 1*840, succeeding
the appearance term, rendered a nisi decree for the pay-
ment of the first instalment on or before the 1st day of the *
February term, 1841, and at this last term, the required
payment not having been made, a decree was rendered
directing the sale of the mortgaged land for the amoont
of both notes, on a credit of three months for the amoont
of the first, and on a credit until the 8th of October,
1841, for the amount of the last« which was payable on
that day.

FALL TERM 1841. 203

QaefUooBitated.

The mortgagor seeks the reversal of that decree on two CAuncAir
groands: 1st, An alleged want of jurisdiction in the Fay- Satm et ai.
ette Circuit Court; and, 2ndl7, Error in so much of the
decree as foreclosed the equity of redemption and direct-
ed a sale as to the sum which was not due when the de-
cree was rendered.

1 . A bill for foreclosure only, is altogether in personam, BUi in equity for
and, therefore, jurisdiction over such a bill belongs to the equity of re-
coort of equity of any county in which the defendant or ^^^u traSS
any one necessary defendant, shall be served with proper ^^^t* "J^ any
notice. But, as a sale of mortgaged land operates in necessary defen-
Ttm^ cognizance over a bill for a sale may be exercised ^lAuiproceMlhL
by the court of equity of the county in which the land g' j^^ewee' for
lies, and would, upon common law principles, be re- ■J^^^'^y '^ ^K
stiicted to that local court, if the prayer for a sale were the county vhere
the only grounds of jurisdiction. tisdicUo"^*^'*'

But a bill for ascertaining and settling the amount due ButabiUfoiaa.
and for both foreclosure and sale, is personal as well as certainiog the

.1 1 .1 /» • • '.r ax. 1* amount due on a

local; and, therefore, m ouropmion, either the person of mortgage, and
a necessary defendant or the locality of the mortgaged ^^^ »te,1^rt
premises may give jurisdiction in such a suit. It cannot aonaiasweii^
be known until the final decree, whether the suit may not serrice of pro-
produce the debt without a sale of the mortgaged estate, cessa^ *"Iefen-
D. A. Sayre seems to have been an indispensable ^uVt^^^^of ^ the
party, because the assignment of the mortgage, as de- county where
scribed in the bill, cannot be understood as passing to his may be found,
assignee the legal title of the mortgagee. ihelSy of

Consequently, as we cannot presume that the assign- ^* . ™^'^*?5^
ment was merely nominal, for the purpose of giving ju- gifejuriadietion.
risdiction to the Fayette Circuit Court, the judicial deduc-
tion from the record is, that the decree is neither void nor
erroneous for want of jurisdiction to render it.

2. The decree, as rendered, is certainly anomalous in
character and questionable in principle. The chief argu-
ment in support of it is the assumption that the default in
the first instalment entitled the mortgagee to a final and
conclusive foreclosure of the mortgagor's equity of re-
demption, as to any and every portion of the land mort-
gaged; and that, therefore, as the mortgagee might thus
have obtained an irredeemable title to the entire tract, the
mortgagor cannot complain that he has elected to have it

204 BEN. MONROE'S REPORTS.

CAUfMAS sold for paying the whole debt, according to the prescribed
Satbb et aU instalments.

But can this assumption be maintained by either au-
thority or principle?
Cloglish practice In England it is the established practice under the com-
bhifl^oiTmwtg^ mon law, to decree a foreclosure without sale unless—
ge&-* bar fore- 1st, the mortgagor consent to a sale; 2d, the interest

closure without .,, . , «.,

sale. mortgaged be a dry reversion or an advowson; 3d, the

creeaBaleinaU estate be insufficient to pay the debt; 4th, the equity of
consent. ^^^^^* redemption descends to an infant; 5th, the mortgagor be*

comes bankrupt; 6th, the estate lies in Ireland, where,

as here, the more eligible practice prevails, of decreeing

sales unless both paities prefer a simple foreclosure,

whereby the mortgaged e3tate is vested irrevocably in the

mortgagee, in satisfaction of his entire debt.

An entixe debt And there can be no doubt that, under an ordinary

toSte ^on^lwe "mortgage of land for an aggregate debt, payable in instal-

to pay first in- ments, the mortgagee may, after default in the first or any

ataunent, mort- , « w» , . ^. , ,

gaffe forfeited 6l Other payment, enter or maintain ejectment and retain
SSe!?^** ""^ possession of the entire tract, subject to an account for

the profits; because the condition of defeasance being
indivisible, a failure to pay, as stipulated, the entire debt
or any portion thereof amounts, in technical law, to a
forfeiture.

Bat in anch case ^"^ ^^ ^^ ®^®' ^^^^ adjudged in England or elsewhere,
a court of equity that, for a failure to pay one of several instalments a
eonduaivs foie- court of equity should decree a conclusive foreclosure of
^"SfiSdei^ the equity of redemption as to the whole of the mortgaged
tion as to t£e property? We have not been able to find any such judi-
cial decision. The cases of Stanhope vs Manners, (2
Eden. 197;) Gladwin vs Hilchman, (2 Vernon, 135,)
and Leveridge vs Forty, (I Maule cf- Selwyn, 706,) have
been inadvertently referred to by Mr. Coventry, as look-
ing that way: Coventry's Powell, 3 vol. 903-965. But
no one of these cases, when examined, will be found to
contain any thing which could authorize such a reference.
In ^nhope vs Manners, interest was payable periodi-
cally, on each of several instalments of principal, and
the mortgagee had, by an express stipulation in the
mortgage, the election to call in all his money on a default
in the payment of any one instalment of interest. And,

FALL TERM 184L

205

OD a failure by the mortgagor to to pay interest, the mort-
gagee having elected to call in his entire debt, the court
decided that be had a right to do so, and, therefore, to
foreclose the equity of redemption as to all the instal*
ments and the whole mortgaged estate.

The only point adjudged in Gladwin \s Hitchman was,
that under a mortgage securing a debt ^t the end of five
years, and the semi-annual payment of intermediate in-
terest thereon, an assignee who, about two months before
Ihe principal became due, had advanced to the mortgagee
the aggregate amount then due, (no interest having been
paid by the mortgagor,) was entitled to interest on the
interest due and unpaid when he bought the benefit of
the mortgage, because the interest, after it became due
shoold, in the opinion of the court, carry interest.

Aud in Leveridge vs Forty, a mortgage and warrant of
attorney having been given to secure a debt in instal-
maots, the court refused to quash an execution for the
entire debt, issued after only one instalment had become
due, assigning as the reason for overruling the motion,
the opinion that the terms of the warrant of attorney con-
structively imported thai ihe mortgagee might have exe-
cution for ihe whole debt, in the event of a non-payment of
any one instalment.

Neither of these cases, therefore, applies, in the re*
motest manner, to the question whether a mortgagee,
whose mortgage was intended to secure a debt in pre-
scribed instalments, can be entitled, without the mort-
gagor's consent, to a decree of irrevocable foreclosure as
to the entire property before the whole debt has become
doe or demandable, and when, therefore, there had been
no forfeiture nor default as to a portion of the debt.

And would such a decree be generally, if ever, con-
sistent with the intention of the contracting parties or the
principles of equity?

A mortgage being intended as a collateral security and
being, moreover, entitled to no other eflFect in equity,
should not, as a mere matter of election by the mort-
gagee, be enforced by a court of equity, for any other pur-
pose than that of paying the debt, or so much tliereof
only, as shall be due and unpaid at the date of the de-

ClUFMAN

ve
Saykb et at.

A mort|;a^ ia
intended a«col*
lateral security
for Uie debt, and
a court of equity
will g^ve it no
oUier effect, nor
enforce for ua
other purpose,
and for only so

206 BEN. MONROE'S REPORTS.

Caufkan cree, nor to any greater extent than the defanlt of the

Saybb At ai, moEtgagor and the right of the mortgagee, as io the dtbt

much as is due which is the principal, the mortgage and the equities re>

dewee^.*^**^^^* suiting therefrom, being merely incidental, a couit of

equity will not enforce a technical forfeiture. Such a
court, looking to the form and object and not to the let-
ter of the contract, treats a mortgage as collateral seen-
lity merely, and will aid the mortgagee no farther thrin
may be necessary for enforcing his debt, as it becomes
due, and upon equitable principles. Whatever may,
therefore, be the merely legal rights of a mortgagee, if,
instead of enforcing them, he elects to resort to a court
of equity for foreclosure, that court ought not to foreclose,
either before there was any equity of redempton of which
the mortgagee could avail himself by bill, or to any
greater extent, finally, than that to which the mortgagor
had a right to redeem. A mortgagor has no equity of
redemption before forfeiture; and when a forfeiture, as
in this case, had resulted only from the non-payment of
the first of several instalments, his equity of redemption
would be limited to that instalment, and he could not an-
ticipate or be required io pay, before they became dae,
the other instalments.

The right to foreclose and the right to redeem are recip-
rocal and commensurable.

Then, consistently with these well established princi-
ples of equity, can a mortgagee, under an ordinary mort-
gage, securing an aggregate debt payable in ten annual
instalments, be entitled, upon a default only as to the
first instalment, to a decree of conclusive foreclosure as
to the whole of the mortgaged estate? And should he
obtain such a decree, would the entire debt be thereby
discharged, or would so much only be satisfied as was
due and recoverable at the date of the deeree? Would
not the mortgagor still have a right, both equitable and
legal, to pay the other instalments as they should become
due, according to the contract? And would not such
payment or an oflfer to pay, open the foreclosure either
entirely or pro tanto? Or if, as he might do, the mort-
gagee should sue at law to recover the remaining instal-
ments, would he not thereby open the foreclosure?

FALL TERM 1841. 207

Any answer that can be given to these jenquiries will Caufmah
sbow» either that a foreclosure in such a case should on. Satbb et al
ly operate to the proportionate extent of the instalment
as to which there had been default, or that, if it can
conclude the mortgagor as to the whole of the mortgaged
estate, he has either been compelled to submit to a sale
of his estate to pay nine of the annual instalments, be-
fore he had been guilty of any default as to any one of
them, or that the whole estate has, by decree, been con-
firmed to the mortgagee for only one of ten equal parts
of an aggregate debt, to secure the whole of which the
mortgage was given.

It seems to us, therefore, that a final foreclosure in a final fbrecios-
fioch a case, if any such be. deemed proper, should be de- gage°for*one*^of
creed only to the relative extent of so much of the debt as se^^i inatal-

ments, cannot

had become due and been withheld in violatioi; of the extend beyond
contract. And a careful and protracted research Hias due. "^ ^'
not enabled us to fiiid in the reports of cases adjudged
by the Courts of England, or by those of our own coun-
try, any judicial decision authorizing a more compre-
hensive deduction.

Bat in this country a mortgagee must generally pro-
ceed in equity for a sale as well as a foreclosure, and
will not generally be entitled, without the mortgagor's
consent, to a decree of foreclosure only.

Here the mortgagee has, without the mortgagor's con- Mortgagees—
cnrrence, three general remedies — 1st, to take possession -^'Sxia coiDmtr?'
of the mortgaged property, and apply the profits to the
extingoishment of his debt; 2d, to sue in a court of
common law, and enforce his judgment either by exe-
cution or by filing a bill and obtaining a decree for sub-
jecting the mortgaged estate by sale to the satisfaction
of his judgment ; and 3d, by filing his bill in the first
instance, for a foreclosure of the equity of redemption,
and a sale of the mortgaged property, or so much as
shall be necessary.

The object of resorting to either of these two last ju- no decree can
dicial remedies is the same — that is, the collection of Uie a* buf ^SI* fow"
debt, or so much thereof as shall be due and collectable: c^ose^ to seU to

* 'P ^-i 1 . 1 . , pey instalments

and if the mortgagee elect to sue m chancery m the not due.
first instance, should he have aright, as a matter of

208 BEN. MONROFS REPORTS.

^^^^^ coarse, at his own election, to sell the mortgaged estate
Sayeb et al for a part of the debt which has not become due, when
he would have had no such right had he obtained a judg-
ment, and either issued an execution thereon or filed an
auxiliary bill? In each form of proceeding, the legiti-
mate aim and end being the same, the equitable right
must, as a general rule, also be the same. And this
doctrine was virtually recognized by this Court in the
early case of Adams et al. vs Essex el al. 1st Bibb, 149;
in which case the Court seems first to have assimilated
a bill for a foreclosure and sale under a mortgage for se-
curing a debt in instalments to an action of debt as
the concurrent legal remedy; and therefore, on the first
consideration, had decided that a suit for foreclosing and
selling could not be maintained until all had become
due and enforcible ; but, on a re-consideration, such a
procedure in equity on such a mortgage being deemed
more analagous to an action of covenant in which any
one instalment which has become due may be recovered,
the Court finally decided that a default in the first instal-
ment authorized a bill for a foreclosure and sale pro
tanio, and for as much more as might become due before
the date of the decree. And, whilst the Court suggested
that such a bill might be retained until all the instal-
ments had become due, it explicitly expressed the opin-
ion that, in that case, there could be no decree for a sale
for any instalment which was not due at the time of the
decree.

As to the general principle therein recognized, that
decision seems to us to be as reasonable as it is author-
itative, and especially in the absence of any opposing
authority. There should however, as we think, be ex-
ceptions from that just and salutary doctrine.

If the mortgaged property be indivisible, there might
be a question whether the whole, or only a part of it, or
a partial interest in it, should be directed to be sold by
•decree for one of several instalments; or whether, under
all the circumstances of each particular case, it might
be more equitable to postpone a sale until a default
had occurred as to the entire debt. We presume, howef-
er, that in such cases generally it might appear to be most

FALL TERM 1841. 209

just and consistent with analogy to sell the whole of the Oawhak
indivisible property for paying so much as may be due Satkb Hal.
at the date of the decree, and for securing the payment
of the residue as it shall afterwards become due. And
in the case of The Bank of Ogdensbvrgh vs Arnold,
(5th Paige's Rep'ts, 29,) the Chancellor o{ New York
said that such had been- the doctrine and practice in that
State, upon common law principles.

But when, as in this case, the mortgaged estate does if mort^ged
not appear to be indivisible, but being a tract of land, vUilie.^cau'the
may be presumed to be conveniently divisible, it does cree^^a^B^aa^ for
seem to us that, in the exercise of a sound judicial dis- ^^^^^'^Se^duc'
cretion, the Chancellor has no authority to require, querej N. York
against the mortgagor's will, the sale of more than shall ^'*^ ^^** ^' ""
be necessary for paying so much of the debt as may be ?e°iJor^may^*8eU
due and recoverable by suit at the date of his decretal ^.V^^^® ®*^*®
order, unless he shall be well satisfied from the charac- of mortgasor, or
ter of the property and the condition of the mortgagor, rs^t^o7mortg^/e
that by selling only a part atone time, the mortgagee would require iu
may lose a portion of his debt, and also, that a sale of
the entire estate at once would either, secure the whole
debt, or approximate more nearly to it than several sales
in parcels, in which event we should not deny the discre-
tion to decree a sale of the whole on a survey of all the
facts and consequences.

If, in such a case, the mortgage be not satisfied with
such a procedure, he may sue at law, or enter and enjoy
the profits, or wait for a decree for sale, until his entire
debt becomes due* If be expected nriore he ought to
have secured it by an express stipulation in his contract
of mortgage.

In this case the mortgage is of the ordinary character,
and must be construed as a collateral security merely for
each instalment as it should become due, and no more.

And the fact that the mortgage was given to secure the
price for which the mortgagee had previously sold and
conveyed to the mortgagor the mortgaged land, cannot
be deemed material ; for, had there been no other securi-
ty than an implied equitable lien, a court of equity, upon
no other facts than such as now appear in this case, would

not have enforced it, otherwise than by decreeing the sale
Vol U. 27

210 BEN. MONROE'S REPORTS.

Mo&xHSAD of SO much of the land as might be necessary for paying
Jones. whatever was due and demandable when the decree was
rendered; and the mortgage as written, cannot import
more than would have been implied by a resulting lien,
without any express contract for an incumbrance on the
land.

Consequently, as it neither appears in this case that
' the mortgaged land is not conveniently divisible, nor

that a sale of the whole of it at once is necessary for se-
curing both instalments of the debt, or preventing un-
just loss to the mortgagee, it seems to this Court that
the decree of the Couit below was not such as it ought
to have been.

Decree reversed and cause remanded.

Owsley and PiHlc for plaintiff; Robinaon and John-
son for defendants.

• •4'^

*:••■• ^v^

CifsK. \ Morehead vs Jones.

tJoSiii 68!f * Jl J Ebror to the Bracken Circuit.

'Libel and Slander, Issues. Evidence. Damages,

December 25. Judgb EwiNQdeliveied the Opinion of the Court.

The case of ac This is an action for a libel brought by Morehead
Jea^vfdence* against Jones, in which a verdict of one cent in damages
jQdgmenL was foiind for the plaintijBf, and judgment rendered there-

on, and he has brought the case to this Court. The ac
tion was for certain paragraphs contained in a pamphlet
all^dged to have been composed, printed and published
by the defendant, of and concerning the plaintiff, charg-
ing him with perjury and an attempt at bribery, and sub-
ornation of perjury. The defendant pleaded justification.
On the trial the plaintiff read to the jury, from the print-
ed pamphlet, such of the paragraphs as was set forth
and charged in his declaration as libelous. The defen-
dant was permitted to read to the jury, from the same
pamphlet, certain paragraphs immediately preceding and
succeeding those charged in the declaration to be libel-
ous, and read by the plaintiff to the jury as such, show-
ing that the pamphlet was composed and published in

FALL TERM 1841. 211

answer to a letter previously written and published by Mohehead
the plaintiff, in which it is said he ruthlessly assailed the Jones.
character of the defendant, and also referring to his in-
formant as to the charge of perjury, as a man of charac-
ter and truth, standing upon terms of intimacy with the
plaintiff, and not likely to make a statement unfound-
ed in truth, so injurious to his reputation. To the read-
ing of these paragraphs by the defendant, the counsel
for the plaintiff objected, which objection was overruled
by the Court, and the only question presented in the re-
cord for the consideration of this Court is, was the opin-
ion of the Circuit Court correct in permitting those parts
of the pamphlet to be read as evidence to the jury.

We can perceive no good reason for excluding the evi- in aa actioa for
dence read ; it was part of the same pamphlet which c^^um^^^aw-
contained the libelous matter, and on the same subject, g^pji
and was properly received as explanatory of the subjo^^uRi^i^^tii^
matter, occasion, motive, and intent of the publicatBn^Bffto rSJfe
In the case of Hoichkiss vs Laihrop, 1st John. Rep. ^6, "P^^PJjjJ^^i
the Court permitted a previous publication againJilLAX (OmIRB^I
a third person, to which the defendant's publication
an answer, to be read to the jury, in mitigation of cla1b#^*^*^J*
ges. And with the same object, in the case of WilliamsS&iki^S^
dias A. Perkin vs Foulder, tried before Lord Ken- motivT of the
yon in 1797, hi» lordship permitted the counsel for de- ^aUonoVdama^
fendant to read passages from various scurrilous publica- ^*"'
tions previously made by the plaintiff against reputable
characters of the kingdom.

Without sanctioning the doctrine, to the extent that it
was carried in those two opinions, and especially the lat-
ter, we cannot doubt that it was proper to allow passages
to be read from the same pamphlet, explanatory of the
subject, motive and inducement to the publication.

The defendant should be tried by what he has publish, a dcfendwitin

1 . 9 f i* « t 1 t 1 • 1 1 • 1 *'^ action for a

ed and the whole of what he has published m the same libel, should be
pamphlet, on the same subject, and not by such passages he has puWi»hwi
as the plaintiff may select and dislocate from their con. in ^the same pam-
text, and make the basis of his actio|i. As the party
whose confessions are relied on and proven, has a right
to the proof of his tohole confession, or in slander, after
the plaintiff has proved a part of the words spoken by the

212 BEN. MONROE'S REPORTS.

MoBBHBAD defendant, the latter may extract from the witness oil
iomEB, that was said at the same time on the same subject. So
it would seem that he who is sued for a libel should not
be confined to and rendered responsible for those passa-
ges only which the plaicttifif may select, but should be
indulged in reading to the jury the whole he has written
and published at the same time, and on the same subject,
especially when the whole may be necessary to a full un-
derstanding of the subject, degree of malice, origin, de-
sign and motive of the publication.

Tho' malice is implied from language^ verbal or written,
which imports a charge of a criminal nature, yet tbeie are
degrees of malice which may lessen or enhance the guilt
and should lessen or enhance the damages ; and to ena-
ble the jury to determine the degree of malice, all that
was published on the same subject at the time, should be
heard.
The law nsgaxdB The law regards the passions of men ; and though they
men^aS^ihough ^^^^ °^^ ^® allowed to exercise or justify a slander or libel,
not allowed to they may palliate the guilt, and should be permitted to

justify OT excuse . . ^ ^ i mi ■ . r

a slander oi li- mitigate the damages. The parts read were, therefore,
aUow?d**topaii^ properly permitted to go before the jury, unless, as is con-
SamM^a!*^^^*^ tended by the plaintiff's counsel, it should be deemed im-
proper to allow a defendant who has pleaded justification,
to introduce as evidence any palliatory circumstances
other than the bad character of Uie plaintiff, in mitigation
of damages.
A defendant in a We can perceive no good reason for the distinction
JrMdM,^^^ufy! **^®" '^y *® plaintiff's counsel. The defendant is al-
uig and Wing m lowed, by our statute, to plead as many pleas as he may
tain^it^may, neJl deem necessary for his defence. If he pleads justifica-
cTWence 'in mfu! ^^^°» ^^ ^^^^ SO in the exercise of a right which the law
gation of dama- guarantees to him, and though he should foil to sustain

the issue, on this plea, he is no more censurable than if
he should plead not guilty, or any other plea, the issue
on which should be found against him. In either case,
he may be innocently mistaken in the proof; or it may
turn out differently or fall short of that which he had a
right to expect, from the ignorance, misrecollection or
corruption of witnesses. Failing in the issue on the plea
of justification, as well as a failure to support the issue

FALL TERM 1841. 213

on any other plea, leaves open the question of damages, Morkhbad
and should no more, in the one case than in the other, Jowm.
preclude an inquiry into those paljiatory circumstances, ~
which bear upon the question of damages. Indeed the
question of damages is a distinct question from the ques-
tion which arises on the issues submitted to the jury, and
tboQgh they are submitted to the same jury, the former
can never arise but upon a determination of the latter
question in favor of the plaintiff. If each were submit-
ted to a different jury, it would more readily appear that
ii^ character of the issue submitted to and determined by
one jury, should have no effect upon the question submit-
ted to the other. Though they are both tried by the same
jury, they are distinct questions, and the one should not
be permitted to have any effect upon the other. The de-
fendant may introduce evidence tending to prove his jus-
tification, but not knowing how the jury may find, may
introduce palliatory circumstances which bear upon the
question of damages, which the jury are required to as-,
sess in the event of their finding the issue against him.
And this may be the case on the trial of any other issue.
It is the province of the Court to instruct the jury how to
apply the evidence, and under the instruction of the Court
there is no danger of their misapplying it; and if there
were, it forms no good reason for excluding that which
bears upon the damages, as that question, as well as the
issue, is to be decided by the jury, any evidence which
may enlighten their judgment on either question, ought
to be heard.

We are aware that it has been decided in Massachu-
setts, in the case of Alderman vs French, 1 Pick, Rep.
18, and the same principle sanctioned in the case of
Bodwdl va Swan, 3 Pick, Rep. 377, that when a defen-
dant has staked bis defence on a plea of justification, that
he will not be permitted to prove palliatory circumstan-
ces in mitigation of damages ; but we think the doctrine
sanctioned in those decisions is neither sustained by
principle or authority. Nor has there been a uniformity
in the decisions upon this question in that State; for in
the case of Lamed vs Buffingion, 3 Mass, Rep, 553, Par-
sons, C. J. says, "that when, through the fault of the

214

Jackson

va
Weisfoer.

BEN. MONROE'S REPORTS.

plaintiff, the defendant, as well at the time of speaking
the words as when he pleaded his justification, had good
cause to believe they were true, it appears reasonable
that the jury should take into consideration this miscoib
duct of the plaintiff to mitigate damages."

Upon the whole, we think that the passages of the
pamphlet read by the defendant's counsel, weie properly
admitted, and the judgment is affirmed with costs.

Payne ^ Waller for plaintiff; Morehead ^ Reed for
defendant.

Court

Cask. Jackson vs Weisiger.

Case 69. Error to the Mercer Circuit.

Slander, Forgery. Actionable words.

December 27. Chief Jostice Robertson delivered the Opinion of Uie Court

The case stated * The Circuit Court having sustained each of four de-
and judgnwnt^jjf j^iurrers to four several counts in an action of slander in-
stituted by Dr. Thomas W. Jackson against Dr. Joseph
Weisiger, the only question now presented for revision is,
whether any one of those counts exhibits a good cause of
action.

All the counts aver that Weisiger falsely and mali-
ciously uttered of Jackson, that he had forged a letter pur-
porting to have been written by Weisiger cf Fleece to
John G. Meaux.

The second count is the only one which attempts to ex-
hibit the contents of the letter, and from this it appears
to have been commendatory of Jackson as an eminent
physician, concluding with the following suggestion, ap-
parently intended as a corroborative illustration: **Had
"we not considered him such, we never would have taken
"him into partnership with us; our association would
"have been published long since, but having refused
"some one of our near connexions the same favor a sense
"of propriety prevented it."

The first and most important question is, whether
words imputing to Jackson the unauthorized fabrication
of that letter could, under any circumstances, be, in

FALL TERM 1841. 216

themselves, actionable; and the legal answer depends on Jackson
the solation of the question whether any such charge Weisiger.
should be understood as imputing a crime punishable by
the law of the land.

Interpreting the letter on its face, unaffected by any The forging and
intriusic fact, it neither imports a transfer or extinguish, ter, representing
ment of any right, or an obligation for money or other lr\Vd ^Se^indiI
thing, nor purports to have been even designed as evi- it*^u*^^^°«®?^'
dence of a partnership, to be used for the fraudulent pur- are partners, not
pose of depriving Weisiger c^ Fleece of their property, of depriving ^e
The letter purports to have been written for the purpose irty^^'i^'Drt^^a
of lepelling imputations injurious to Jackson, and of criminal offence
commending him to the favorable consideration of mon law or stat-
Meaax; and, as before intimated, it alludes to a sub-
sisting partnership, apparently for the purpose of illus-
trating the good opinion thus expressed of his merits.

The fabrication of such a letter, for such a purpose. Nor is it slander
though very discreditable, would not have been a technical ^ith^ forffng and
forgery or other criminal offence punishable by either the S"pjpeV"withou^
common or statute law of Kentucky, a more specific

But if he wrote that letter, and then had either brought tiie charge to\
or intended to bring a suit to recover from Weisiger cf- ^^^^'
Fktctdi portion of the profits of their practice, unjustly
claimed by him as a co-partner with them, ond if, also,
he forged the letter with the corrupt design of iTjaking
false evidence in support of that claim, and of thereby
fraudulently depriving them of their property, Jackson
was, in our judgment, guilty of forgery for which he might
be infamously punished under a statute of 1814, which
denounces such punishment for forging "any writing
'^whatever, whereby fraudulently to obtain the possession
**of, or to cause any person to be deprived of any proper-
"ty whatever.'*

We do not feel authorized to give to this enactment
such an interpretation as would exclude from its denun-
ciation "any writing whatever," forged for the fraudulent
purpose of depriving another of his money hy thtis making
fdse proof of an unjust title to it.

We cannot doubt that the forgery of articles of part
nership would be embraced by the denunciatory statute
of 1814, and we cannot perceive any essential difference

216 BEN. MONROE'S REPORTS.

Jacksok between the forging of such evidence and the forging of a
Weisiobb. letter recognizing the partnership. In each instance the
object and effect would be essentially the same, that is,
to deprive another or others of property unjustly.

But, as the letter in this case does not purport to have
been written for any such criminal purpose, the second
and third counts are insufficient; because neither of them
exhibits any extraneous fact indicating any illegal motive.
The first and fourth counts, however, aver that Jackson,
claiming to be a co-partner with Weisiger d^ Fleece, in
the practice of medicine, had sued them in chancery for
a third of the profits, and had filed, as evidence, "a let-
ter recognizing ' such a partnership. And the fourth
count also avers that, in a conversation respecting tiiat
suit, Weisiger published of Jackson that he "had forged
the letter," and also that he had written it to defraud
Weisiger and Fleece, But the first count, which charges
the same words, refers to no colloquium whatever, and
in charging the slanderous words, does not identify any
letter.
It is felony to Charging a person with forging a letler, without saying
forge a paper ev- more, does not, in our opinion, either necessarily or ac-
nerehip, but to cording to the presumed understanding of the hearer, im-
?Dg?Sjtte?w^2' pute a criminal offence. The import of such a charge is
^ut saying more, ^^ ig^Rt as ambiguousand indeterminate as that of being

does not neces- ^

sariiy impute a *«a FOgue," or *jorestjoorn;'' and for the like reasons,
noT/osay S^^^L the charge that a letter had been "written*' by one person
i^defrSJid^^o" "^ defraud*' another, should not be deemed actionable,
ther— the charge slander per se, and especially as such a charge does not
^us and indeter- import that the letter was not in the name of the writei
'"^''^^' himself.

As, therefore, the first count does not, in any wayf
refer to any extraneous fact as the subject of conversa-
tion, nor sufficiently describe or identify the letter, we
cannot presume that the bystanders understood the words
charged in that count, as imputing a technical forgery of
such a letter, and for such a specific and illegal purpose
as to constitute the act a crime punishable by our local
law; and therefore, that count also is, in our opinioQt i^
sufficient on demurrer.

PALL TERM 1841.

217

And the fourth coont« though more formal and less im-
perfect than the first, seems*tous to be equally insufficient
in its legal effect; for the only colloquium to which it
refers, was concerning the suit; and neither by showing
the purport of that conversation nor otherwise, does it
create the legal presumption that the persons, to whom
the words as charged were published, understood or had
ever heard that the letter alluded to had either been used
as evidence in that suit 6rl)een written for that purpose,
or even what letter was intended.

Tbe words as charged in this last count, do not, there-
fore, in our opinion, import either necessarily or by legal
presumption, a distinct and intelligible imputation of a
crime, for which Jackson might be punished by a public
prosecution in the name of the Commonwealth, and this
defect cannot be supplied by inuendo.

Those words, as charged, are consequently not clearly
actionable.

The judgment of the Circuit Court is, therefore, af-
firmed.

Turner for plaintiff; Harlan and Gates <f Lindsey
for defendant.

Rats

Woods, and

Daniel, &o«

Allison.

Rays vs Woods, and Daniel, &c. vs Al- Ejectment.

liaon.

Appeal prom the Ge^ekal Coukt. CaselO,

Surveys on entries West of the Tennessee River.

icoGE EwiNG delivered the opinion of the Court. December 27.

These two cases may be considered together, as they xhe controversy
involve the same legal questions ; they are separate ac- stated.
tions of ejectment brought by the appellees against the
appellants in the Court below, in which tlie former claim
title under patents which issued on surveys made by vir-
tue of entries for military services made prior to 1792,
on the ^oath-west side of the Tennessee river. The latter
claim title anJ possession under junior patents which
issued under the laws of Kentucky, and contend that
ttie patents of the former are varient from their entries.
Vol. II. 28

218 BEN. MONROE'S REPORTS.

^^^""^ and void under the act of 1820, (Stat. Laws, 1042) so

Woods, and fai as they conflict with their claims.

Daniel, &c. ^j^^ appellees entries are two of a block of entries,

Allison. made in 1784, which rest upon, as a pivot or basis, a

four thousand acre entry made on the Mississippi river,

including the iron banks. The latter entry, as well as

so many of those based upon it as are necessary to be

recited, aie as follows:

Entry of 4000 August 2, 1784, No. 1. — J ohu Montgomery, William

Same of^Mo^nt^- Craughan, Mayo Carrington, and John Rogers, trustees

gomeryandtrus- foj. laying oflf a town on the Mississippi, enters four

thousand acres of land on the Iron Banks, beginning
at two large hickories at the head of a hollow on the
bank, maiked with three notches two ways, one as
the bank runs down the river, and the other at right
angles from it, and a sassafras and ash trees near to it,
and at right angles from the said hickories, marked with
three notches ; thence from the said hickories so as to
strike a creek emptying itself into the Mississippi above
where the bluff or Iron Bank first comes close on the
river, at the distance of 120 poles on a straight line
above the mouth; thence down the several courses of
the said creek and the Mississippi, so far as when redu-
ced to a straight line, shall be 900 poles from the said
hickories, then at right angles from the said distance and
the said hickories for quantity.

Edward Douse's ^^^T^s/ 2, 1784. — Edwaid Dousc, assignee, enters

wrS. ""^ ^ ^^ *^^^^ °^ ^^^^' ^^ ^^ ^ military warrant, No. 1334,

beginning at the south-west corner back from the river,
of the town of C5olumbia, running with the town land
upwards of 550 poles ; thence out at right angles for
quantity.

Gary Wyait's August 2, 1784.— Gary Wyatt enters 1000 acres, No.
acrSL ^ 26, of a military warrant 120, beginning at Doase's

lower back corner, of an entry of 900 acres, joining the
town of Columbia, extending up the back line of the
said entry to the comer thereof; thence at right angles
for quantity,
^ohas. Dabneyjs August 3, 1784— Charles Dabney enters 1000 acres,
IclS. ^ part of a military warrant, No. 28, beginning at the low-

er back corner of Gary Wyatt's entry, No. 25, of 1000

FALL TERM 1841. 219

acres, nmning with said Wyatt's back line 500 poles ; Bats
thence at right angles for quantity. Woous, and

August 2. 1784.— John Williams enters 1000 acres of ^^««^'*c-
land on part of a military warrant. No. 155, beginning Allison.
at the south east corner oC the town line, running down johnWiiiiams'
the back line of the town until it joins Edward Douse, ^^^^ o^ looo

Acres

and off at right angles for quantity.

Augnst 3, 1784. — Daniel Clark enters 900 acres, part Daniel Clark's
of a military warrant, JNo. 278, beginning where John l^li{ ^^ ^^
Gerault's 1000 acre entry corners with John Williams*
entry of 1000, running with Williams' back line 500
poles ; then at right angles out 288 poles ; then at right
angles and parallel with the first line 500 poles; thence
to the beginning.

Augtist 6, 1784. — ^William Clark enters 1000 acres, Wm. Clark's
part of a military warrant, No. 2681, beginning at Dan- acres. ° ^^^
iel Clark's upper corner, joining Richard Baylor's en-
tries, Nos. 110 and 208; Clark's entry is No. 55, run-
ning with Clark's line westwardly the whole length there-
of; thence at right angles with Dabney's line of an entry,
No. 87, and with Taylor's line of an entry, No. 208, so far
as a line parallel with the first line will include the quan-
tity.

August 6, 1784. — John Rogers enters 1000 acres, part jo},„ Rogers'
of a military warrant. No. 141, beginning at William ^"^'t of looo
Clark's south comer, in Dabney's line of his entry. No.
87, and of Clark's entry. No. 210, running eastwardly
with William Clark's line 500 poles; thence at right an-
gles so that a line parallel with the first will include the
quantity.

August 10; 1784. — John Allison enters 1200 acres, Appellee aih-
part of a military warrant. No. 122, beginning at the i^^cTes'' °^
south-east corner of John Rogers' entry, No. 276, run-
ning with his back line westwardly, the whole length
thereof; thence at right angles so far that a line parallel *
to the first shall include the quantity.

August 14, 1784, No. 62S. — Willis Wilson enters wniis Wilson's
1000 acres of land, part of a military warrant. No. 2689, «*^'^y «»^ i^

Acres tinflcv

beginning at the south corner of John Allison's entry of which appeiie©
1000 acres. No. 382, running with said Allison's line 500 ^«°*^^*«»">«-
poles; thence off southwardly and at angles for quantity.

220

BEN. MONROE'S REPORTS.

Woods, AND
Dakiel, &c.

Allison.

Deli'B maundrof
BttTTeylDg the
town tract

SUtttte tequiring
•uirefs below
theTennesseeyto
confonn to e^ry
does not require

The first of the two last entries is the one under which
Allison claims, and the last the one under which the
Woods' «laim title.

The diagram facing this page will exhibit a connected
view of the entries as the same have been surveyed and
patented.

John Rogeis* survey is made to occupy the space
which William Clark's entry, which has since been with-
drawn, was intended to embrace, as the plaintiffs be-
low contend, and the space designated a "vacant space,"
is left for the ground which should have been occupied
by John Rogers' entry, which J. Allison*s entry calls to
adjoin. The diagram to the east, laid down in squares,
with lines running to the cardinal points, designate sec-
tions surveyed by Henderson, imder the act of 1820,
StiU. Laws, 1040, under which, and by virtue of pateuts
issued for a part of the same» interfering with the plaio.
tiffs, the defendants claim title. The parallelegrams,
represented with double lines and cross lines of the
same, designates the ground which the defendants con-
tend would be embraced by the eptries of John Rogem^
Allison and Wilson, if surveyed accordifig to their en-
tries.

The defendants al^o contend that the single line, from
6 to 4, represents the true position of the base IiAe of the
tdWn tract .according to the antry, and the single line»
from 5 to 6, a line run at right angles to the same, which
forms the northern boundary of the lown tract, and of
the block of entries based xipon it.

We would premise that though the statute of 1820 de-
clares void a patent founded upon an entry for military
services, made prior to '92, so far as the same maybe
variant from the ent^y, it cannot be deemed to have been
the intention of the Legislature to require absoltUe cer-
tainty in the identity between them; to require such cer-
tainty would be to require perfection in human agency
and human instruments.

The inaccuracy of instruments, the variation of the
needle, the decay and entire obliteration of locative
objects by lapse of time, and the unevenness of the
ground and other obstructions would render it practical-

'J-1

t^i

■^''* !

tl*

'1^'

ii
li

FALL TERM 1841. 221

ly impossible by human means, exerted with the best in- Ra^
teotions, to produce absolute certainty in the correspon- Wooos, and
denoe between the entry and the survey in many cases. ^^n'^» **^
Reasonable certainty was all that was looked to or can ALmow.
be required. The object of the act was to restrict the ^^^^ certain-
military claimant to the land which was intended to be
embraced by his entry, and to prevent him from running
over the countiy under color of his entry, and procuring
surveys to be made palpably variant from the same, on
the better lands, to the injury of the right of the State
to Ihe same, as unappropriated land. That they did not
inlend to embarrass the military claimant, or subject»his
daim to a forfeiture for a slight apparent inaccuracy or
departure from the entry, which no reasonable human
flieaas could certainly prevent, is manifested by the pro-
mioo which they made in the same act, continued from
session to sessi<Hi, for the survey of their entries and the
consummation of their titles, and the provision which
was iBftde in the 17th section of the act of 1821, Stat.
LawSy 1051, re^eoacted by the 16th section of the act of
1826, Stcd. Laws. 1067, prohibiting the Register in the
iirst act, and the Receiver in the latter, from selling any
section or portion of a section of land which may be in-
cluded in any military entry or survey,

In view of the f<wegoing eoosidejrations, it may well
be doubted, whether, if one of the locative objects has
decayed, or is lost by time, so that it cannot be found by
nusonable sesrch and enquiry, the survey may not be
made to oenform to the other objects which are found,
and are of tmquestionable identity with the objects call*
ed for in the entry, without regard to the lost object.

We would further remark, that we cannot ^oubt that
ODder the foregoing statutes the Receiver was guilty of a
palpable violation of his duty, in permitting entries to
be made under the State authorities so as ito embrace any
portion of a military eia^ry or survey ^ if he was apprised
of the same. But as entries have been made and pa^
tenta have issued thereon^ and as the act of 1820 de*
dares absolutely void, the military patent^ so iar as a va-
riance deists between it and the entry or location^ with-
out reference to the nature of the adversary £luia« Of

Allison.

222 BEN. MONROE'S REPORTS.

^^ whether such claim existed at all or not; and as a plaio-
Woods, AND tiffmust lecover upon the strength of his own title, and
has no title if his patent be void, we cannot say that the
irregularity of the defendant's title can help out the plain-
* tiff's case.

As the Register But the military entries have been surveyed mostly in
ed* to^^Ssue^^no the absence of their owners, by disinterested surveyors,
Burvey'^'^^corres^ chosen under State authority, and sent out with special
pond with the instructions to make their surveys correspond with the
patent has is- entries, and the Register has been directed to i^ue no
P?aintjJ in^ct* P^^^^ unlcss whcro such Correspondence exists; and
ment .jciying where a patent has issued under all these guards, bearing
appear * clearly, the great seal of the Commonwealth, it must be regard-
Snr/M£wSy,*to ^^ ^ conferring record evidence of title, which will stand
miy *wld the ^^^^ ^^ Variance from the entry, as well as the ejUeni
extent and limit and limit thereof shall be clearly, saiisfactoriLy and tof^
and this deToiyes cZt^^t^e!^ shown ; and the burthen of showing it lies upon
pSac^hK'e i^: ^^ party impeaching the patent.

tei^t. The denunciation of the statute is highly penal upon

the military claimant, and to use the language of crimi-
nal jurisprudence, a rational doubt as to the variance
should be tantamount to a finding in favor of the milita.
ry patent.

With these preliminary remarks we will proceed to
an examination of the cases before us.

The defendants rely upon two grounds to make out the
variance.
Def 'ts mode of 1st. "that John Rogers' entry in the block lies on the
•urreying. south side of William Clark's entry, and should have

been thus surveyed; and that Allison's and Wilson's, the
claims under which the plaintiff's claim title, lie on the
south of Rogers, and should have been surveyed accord-
ingly, as exhibited in the parallelogram, designated with
double lines, in which case they would not embrace any
portion of the defendants claims — or that Rogers' should
have been surveyed on the south of Clark's, and Alli-
son's and Wilson's on the east of Rogers, in which case
they would embrace only a small part of their claims.

2d. That if all those entries have been correctly sur-
veyed in relation to each other, yet that the town entry
of 4000 acres, which is the pivot or base of all the rest,

FALL TERM 1841.

223

has been incorrectly surveyed in this — that the base line
of 900 poles should have been run from 5 on the bluff
or bank as the probable place where the hickories stood,
to 4 on the river below, and that the survey should have
been constructed on that base, by lines at right angles to
the same, by which the block of entries constructed
Dpou its back line would be thrown further to the souths
and the greater portion of the land claimed by the de-
fendants excluded; or that the hickories called for at
the upper end of the base line, should be placed some^
where between the bluff at 5, and the comer on the
ereek at 2, in which case still a portion of the defendants
claims would be excluded.

1st. All the entries exhibited were made about the
same time and no doubt by the same hands — the super-
intendents, or some one or more of them that were en-
tnisted to make locations for the benefit of the officers
and soldiers of the Virginia State line. And it is appa-
rent from an inspection of the calls of the several entries^
that the locator who made them believed, and in making
the locations acted upon the conviction that the Missis-
sippi river ran from east to west, and by the call for eaat
eastwardly he meant up the river, west or westwardly
dofvn the river, and sooth or southwardly out from the
river.

Take Edward Douse's entry — it was evidently intended
by its calls to lie on the back line of the town tract, which
line is most appropriately designated by the line out from
or most remote from the river, and not on the lower line
of the town tract, which never could have been designa-
ted by the appellation of the back line, but rather of the
lower liru; yet it calls for beginning at the south-weal cor-
ner of the town tract, which would be the comer at A,
and not that at 4, under the supposition that out from the
liver was soiUh, and doton the river west. And under
this supposition there is no confliction, but a perfect co-
iocidence produced between the call for the back line and
the south-west corner of the town tract.

John Williams* entry begins at the south-east comer
of the town line, and runs down the back line of the town
until it joins Edward Douse, and at right angles for quon-

Bays

Woods, and

Daniel, &o.

Allisov.

224

BEN. MONROE'S REPORTS.

Rats
Woods, and

DAKIBLy&e.

Allisov.

tily. Upon the supposition that ovi from the river Is
souih, and up it is east, the comer at B, in the plat, is ap-
propriately described as the southeast comer of the town
tract, and this call is perfectly consistent with the other
calls of the entry, and the land intended to be appropri-
ated embraced by the survey. But according to the
true cardinal points, the comer at A would be the souOi-
east corner, by assuming which as the corner intended,
the entry could not run domt upon the hack line of the
town tract, but would have to run up, in which case,
instead of adjoining Edward Douse' s entry it would
be thrown upon it, and made to embrace the same land
embraced by it.

So, on the same supposition, the call for westu>ardlg
from the beginning in Wm. Clark's entry, and the calls
in Allison's entry for beginning at the south-east comer
of Rogers' entry and mnning westwardly, and the calls in
Wilson's eatry for the south corner of Allison's entry,
and rimning off southwardly at right angles with Alli-
son's line for quantity, may all be reconciled with the
other calls of die several entries, and entire harmony
and consistency be produced.

Besides, it is proven in the cause that to an observer,
standing on the bluff of the river at the Iron Banks, the
river presents the appearance of running a westwaidly
ooufse, owing to the large sheet of water that runs on
the opposite side of Wolf Island.

To give, therefore, the proper constraction to the en-
tries, so as to make them embrace the land intended to
be appropriated by the locator, which is the proper rule
to adopt, w« must keep in view the mistake which exist-
od iin his mind when the entries were made, and lay
them down accordingly. Keeping in view this mistake
and acting upon it, it is perfectly palpable that John
Rogers' ^ntry was intended to embrace the space on the
connected plat, designated by the * 'vacant space," and
that Allison's and Wilson's entries have been properly
constmcted upon it.

it calls fior beginning at William Clark's south corner
in Dabneifs Ziwe, running eastward wUh Clark's line;
tbenee^t right angles so that a line parallel with the first

FALL TERM 1841.

235

line, will include the quantity. Now upon the supposi-
tion that out from the river is south, though the corner of
Clark's entry at G is not the most south corner, it is a
southwardly comer, and upon the supposition that up the
rivtr is eastwardly, it is clear that the line from C to D
was the line of Clark intended. The discrepancy in the
call for Dabney's line, may be accounted for on the hy-
pothesis that the locator acted upon the belief that the
southern block of entries, constructed upon the town tract,
would extend out far enough to push the east boundary of
Dabney's entry beyond the corner of Clark at C, and
which is readily corrected by the other calls of the entry.
Hat the corner of Clark at £ was not intended, nor the
line from E to C, is evident, not only from the violence
which would be done to the belief which we have shown
was entertained by the locator, that the river ran from
east to west, but also from the fact that such a construc-
tion would throw the entry, as to nearly one half of its
quantity, upon the entry of Dabney, for which it calls,
in violation of a well established rule, that when one
entry calls for another, it should never be laid down so
as to interfere with the one called for, as contrary to the
obvious intention of the locator. Upon the whole, we
are clearly of opinion that the first ground assumed by
the defendants counsel is untenable.

2d. But we have had more difficulty with the second
ground taken.

It is evident that the marked hickories, standing at the
head of a hollow, on the bank, with a sassafras and ash
marked as pointers, was to be the northern termination,
and a point on the bank of the river below, at the dis-
tance of 900 poles from the hickories, was to be the south-
em termination of a base line, upon which a rectangular
figure was to be constructed out from the river, so as to
include the quantity called for. To find this base, the true
position of both of Us ends at the date of the entry must
be ascertained. The hickories or other marked trees can-
not be found, nor does any living witness know where
they stood, nor does it appear that they were found by
the surveyor who executed the survey, twenty years ago.

Vol. IL 29

Batc

WooM, Air»
Danibl,!^.

Alluov.

226

BEN. MONROE'S REPORTS.

Rats

Woods, and

Dahibl, &c.

AhJABOV,

No course or distaiice is given from there to the point on
the creek, 120 poles above the mouth, by which their true
position may be ascertained. They are called for as
standing on the bank 9ii the head of a hollow — but whether
the bluff or iron banks was meant, or a bank nearer the
creek, which may appropriately have been called the
bank, is not shown, and no description is given of the
hollow nor of the head thereof, by which either can be
distinguished from any other hollows or heads of hollows.

Taylor proves, that in going from the corner at 2 on
the creek to 5 on the bluff, ''in rising the hill there are
two small hollows, about 65 or 70 poles from the comer
on the creek, and from 25 to 35 poles from the point at
5;" he does not state where those hollows head, or what
direction they run; they may, for ought that appears
from his statement, head a considerable distance higher
up the river, on the bluff, in which case, if one of them
was the hollow intended, the whole block of entries would
be thrown further to the north, and the plaintiffs entries,
as well as patents, might embrace the land claimed by
the defendants.

It is true that Ray, a defendant in one of the suits, tes-
tifies in the other, that there was a head of a hollow near
the point at 5 ; but there are no distinguishing character-
istics given to this hollow whereby it may be deter-
mined to be the hollow intended; and he does not
show where the other hollow spoken of by Taylor heads.
Besides, any little sink or cavity in the ground may be
denominated a hollow, many of which, it must be pre-
sumed, may be found in the side of the bank above, an-
swering the description called for just as well, no doubt,
as the one described by Ray and Taylor, from any one of
which, in proportion to its remoteness from the point at 5,
will the block of entries be all thrown to the north, and
the more so, as in proportion to the distance up the river,
on the bank, the beginning of the base line is placed,
will its southern termination be drawn up the river, by
which it will be thrown more to the east than the termi-
nation of the present line, as the river bank bears to the
east in running up from its present termination, as is ap-
parent from the counse called for in the original survey.

FALL TERM 1841.

221

Again, the course of the bluff or bank, in its continu-
ation up the river, from the point at 5, is noc shown, and
it may make a curve to the west, by which a right line
from its bank at the head of somehollow, as significant
as the one at 5, may be thrown but little out of the place
or bearing of the base line, upon which the survey has
been constructed.

Again, the witnesses state that at some places there is
a continual abrasion of the banks of the river, and at
others an extension of the same by alluvian, but they
have not stated at what points the one or the other is
taking place. If there has been an alluvian and exten-
sion of the bank at the lower termination of the base line,
since the original survey was made, then would that end
of the base, in the survey made under the order of court,
be thrown to the west, in proportion to the increment or
extension of the bank westward] y, and the whole block
of entries be thereby thrown proportionably to the south,
and the departure from the original surveys, as exhibited,
be produced in part or in whole.

Moreover, the inaccuracy and difference in the quality
of surveying instruments, as well as in the skill of sur-
veyors, in connection with the progressive variation of the
needle, might produce a variance of several degrees in
the courses of the lines of surveys, executed at as distant
a day from each other, as even the original surveys and the
re-sorveys exhibited in the plat. And we should the
rather indulge in the presumption in favor of the correct
ness of the former than the latter; and that the same hav6
been executed according to the entries, when we take
into consideration, that they were made by intelligent
surveyors, sent out under the authority of the State, with
special legislative instruction to make the surveys conform
to the entries, uninfluenced by the proprietors, who in
the most cases were absent; and as to the town tract,
were accompanied by and acted under the instruction of
disinterested superintendents, chosen and intrusted by
the legislature for that purpose, some of whom were law-
yers of known legal eminence and integrity, and who
were upon the preihises and had the benefit of an occular
view of the situation of the ground, and of the objects

Bits

Vff

Woods, and
Daniel, Ac.

Allison.

228

BEN. MONROE'S REPORTS.

IUyi

Woods, and

Daniel, Cue.

Aujsoir.

called for in the entry, and their relatidhs to each other,
so far as they were then in existence or could be found.

Upon the whole, we are satisfied that the variance or
extent thereof has not been made out by the testimony,
of that clear, satisfactory and conclusive character, which
required the jury to find that the patents of either of the
plaintiflfs were void in part or whole. And we cannot,
therefore, set aside their verdict upon the evidence, un-
less they have been misled by erroneous instructions of
the Court, or the court has erred to the prejudice of the
defendants, in withholding those that should have been
given.

The first instruction asked by the defendants connsel,
relates to the location of John Rogers' entry on the south
of Clark's, and which was properly refused by the Court,
for the reasons already given.

The second is erroneous and was properly refused, be-
eause it assumes the southern termination of the base
line of the town tract to be at 4, and makes the finding
of the jury turn exclusively on their believing that the
hickories, called for in the entry, stood at 5, whereas the
true position of the base line depends as much upon the
true place of its southern termination as its northern.

The third instruction might have been properly ^efu^
ed upon the ground that there was no evidence tending to
the conclusion that the hickories or head of any hollow
stood twenty.five or thirty rods from the point at 5. Bot
another instruction was* substituted in the place of this,
upon its 1 ejection, which we think more appropriately
•xpr^sses the law upon the same point, in the following
language: ''that itis for them to find, from the evidence,
where the hickories called for, as the beginning of the
town tract stood, at the date of the entry; and if they
should find where the hickories then stood, the base line
of the town tract should be drawn from that point to a
point on the river bank of the Mississippi below, at the
distance of 900 poles, when reduced to a straight line, and
the entry of the town tract, constructed on that base at
right angles, and that the block of entries dependent
thereon, should conform thereto ; and if upon such base

FALL TERM 1841. 229

there should be a variance between the entries under K^"

which the plaintiffs claim, and their patents, to the extent Woodb, and
of such variance the patents are void." * ^^^^*

From what has been said, it is apparent that this in- Allmon.
slruction, fairly interpreted, was substantially correct,
and embraces the whole law of the cases in relation to
the proper location of the base line and the construction^
of Uie block of entries upon it, and was predicated upon
the proper facts, in substance, to be found by the jury.

Bat the Court stated to the jury, from the bench, upon it ig not error for
submitting to them the instructions upon the law of the Judges, in this
case, "that they ought to take into consideration the soli- the jury upoif the
citude which Kentucky and Virginia both felt, to pay the ^^^%^\( *„*^S2
officers and soldiers of the revolution; also that the en- i*^-
tries were not made by the owners thereof, but by super-
intendents appointed for them, and that when the entries
were made, it was a wilderness country inhabited by
savages.'* And it is contended by the defendants counsel
that this charge to the jury was improper and eironeous,
and is sufficient ground of itself, for the reversal of the
judgment. We think otherwise. It is customary in
some of the States and in England, for the judges to
charge the jury upon the facts of the case, as well as the
law; and though that has not been the practice in this
State, we are not prepared to admit that it would not be
allowable here. Be this as it may, if the power should
be exercised, and nothing was contained in the charge
that was calculated to mislead the jury or to divert their
attention from the issue or the facts to be found by them
bearing on the issue, the verdict, for this cause, should ,
not be set aside.

The matters submitted in charge in this case, taken in
conjunction with the instructions that were given upon
the law of the case, and the facts to be found by the jury,
were not misleading. They were submitted as matters
for their consideration and as worthy to be weighed by
them, only in their examination of the facts which bear
directly upon the issue, and which, according to the law
as expounded to them properly by the Court, the case was
made to turn, and not as matters that would authorize a

230 BEN. MONROE'S REPORTS.

Bays finding, independent of those facts or the law. And thu3
Woods, amo understood, they cannot be deemed to have been mislead-
Dawiel,,&c. .^g ^j erroneous, if even they were not proper,

^'^'^'' The judgment is, therefore, affirmed with costs.

Morchead <^ Reed for appellants; Owsley and CeUes 4r
Lindsey for appellees.

DECISIONS

OF TBB

COURT OF APPEALS

OF KENTUCKY.

SPRING TBRM....1848.

Helm, &c. vs Hardin. Chawcbrt.

Erbor to the Hardin Circuit. Case 71,

Parties in chancery. Trustee and cestui que trust.

Exhibits.

Jvi>eE Mabshall deliTered the Opiaion of the CoarL April 6.

This bill was filed by Hardin as the assignee of part of iho case suted.
a judgment in favor of Ezekiel Fields against Henry P.
Helm, to attach and appropriate to the satisfaction of his
portion of the judgment, of which the rest had been paid,
a fund in the hands of Helm and Brown, alleged to be-
long to the debtor, Henry P. Helm. An execution issued
on Che judgment in 1826, was in that year returned by
the proper ofiScer, ''no property found," and this is the
ground on which the complainant comes into equity.
Bat an execution having issued in the next year, whick
the sheriff, by endorsement thereon, states to have been
levied on a "horse, saddle, blanket and bridle, worth
S170/' which is but little more than one half of Har-
din's interest in the judgment, and is not a fourth part of
the amount then unsatisfied ; and there being no statement
by the sherifif, showing explicitly what disposition had
been made of this property, or that there was no more,
and this bill not having been filed until after the return
of this last execution, it is contended that in this State of

232 BEN. MONROE'S REPORTS.

Hw.li, &c. things, the first return was so far disproved by the second,

Hahdin. or the inference of insolvency, which would be authorized

by the first, so far contradicted by the last, that the first

should no longer be regarded as a proper ground for the

interposition of the Chancellor.

An execution ^^^ ^^ ^^® ^^ Opinion that the fact, that after the return

having iaaued on Qf *«no property found,*' a subsequent execution was

a judgment, and '^ ^ •' - , , 7 , , ^

being returned levied on property of value greatly below the amount of
found*' ^by^Yhe the judgment, does not authorize the inference that there
and^a^second^ls- ^^^ ^^^^ ^^Y ^^^^ property accessible to the execution,
auedand levied but the Contrary ; and that the joint effect of the two re-
greatly leas value tums is, that while the last execution was in hand, there
of*hcexec?°ion! was no property but that which was levied on, and which
a^cond^doea" no^ was wholly insufficient to satisfy the judgment; so that
imp&ir the light the returns still furnished sufficient evidence of the neces-
equity baaed on sity of resorting to the aid of the Chancellor for coercing
toSu^Mt dSsSi * portion of the judgment, and sufficient ground under
in action, *c. to the Statute, for so doing; and in this view, the uncertain-

the aatisfaction .

of the judgment ty as 1o the disposition made of the property levied on,

or of its actual or available value, could not affect the
question of jurisdiction, but only the extent of the relief
to be granted.

There is, however, a further statement endorsed on the
last execution by the sheriff, a few days after the date of
the levy, showing that the portion of the judgment be-
longing to Fields, the plaintiff, was then satisfied, and
referring to his receipt, also endorsed on the execution.
The fair presumption from these endorsements is, that
the property levied on was appropriated to the satisfaction
of Fields' interest, which greatly exceeded the value of
the property — that none of it was left for the satisfaction
of Hardin's interest in the judgment, and that, conse-
quently, his claim to the aid of the Chancellor to the ex-
tent of his interest, was wholly unaffected by the levy; i
and although this presumption might be strengthened or
disproved by an amendment of the sheriff's return, or
otherwise, it is sufficient, as the case stands, to support
the decree so far as regards the extent of the relief
granted.

All pareona in- ^^* ^^^^^ ^^ another objection on which we think the
tor«8t«d, (txua. decree must be reversed, H. P. Helm, the judgment

SPRING TERM 1841. 23J

debtor, alledges in his answer, that before this suit was Hblk, dec.
commenced, he bad ^assigned the fund in the hands of Habdih.
Helm and Brown to J. G. Allison, of Virginia, as tros- tee and cnhU
tee of his (Helm's) wife, by way of compromising a g'nd^'^ihi ^i»
suit for alimony, then pending in her favor against him; ["*■*» 'ht to"b^
and he exhibits an assignment bearing date before the subjected to the
bill was filed, which appears to have been read on the [udm^^
trial, without objection, and which, if true in point of 2id ^fi^^^g^'
date, created an interest in the trustee and cestui que trust, parties to Om
which, if the trimsaction was bona fide and founded upon * ^^'
ft valuable and sufficient consideration, would be effectual
against the claim which Hardin sets up against the fund.
Bat these points can only be properly litigated between
Hardin and the trustee and cestui que trtist, or one of
them. If it could be conclusively assumed that the as-
signment, though beating date before the commencement
of this suit, was not in fact made until afterwards, then,
as it could not have created any interest which would be
effectual against the complainant, it might not h^e been
necessary to make the assignees parties to the litigation;
bat as we do not feel authorized to make this assumption
without proof, and against the face of a paper read with- eTidence with^
out objection, we are of opinion that the cause was not ^ecouulMiiow)
in a proper state of preparation for final decree, for the Ja hereMwSof
want of proper parties, and that the complainant should the reoord:
have made Allison, the trustee, and Mrs. Helm, the ces-
tui que trust, defendants, as appearing to have an inter-
est which will certainly be affected by the decree as ren-
dered, and which may or may not be effectual againet
the complainants claim.

The objection made to the evidence read, to prove the WtMStioastoo-
assignment to Hardin, if it would have been otherwise pro^iy nuS^
milable, is, as we think, sofficienUy obviated by the j^^^^th? &^
edmissions of the answers. ^•^JTi? ?J*

^ ^ , sdnutted bj ths

Bat for the want of proper parties, as above pointed wty objeotins
out, the decree is reversed, and the cause remanddd for v»w«er.

farther proceedings.

itfoftnic for plaintiffs ; Bonlin for defendant

Vol. n. 30

234 BEN. MONROE'S REPORTS.

Ejectment. Gregory's Heirs vs Crab's Heirs.

Case 72. Appeal from the Henry Circuit.

Landlord and Tenant. Estoppel.

April 8. Gbibp Justice Bobebtson deliyered the Opinion of the Court.

The ease stated. This is an ejectment for land claimed by the lessors

as heirs of Caroline Gregory, one of Iwo devisees of her
father, George Muse, who died in 1790, The defen.
dants, as heirs of Jeremiah Crab, rely on a contiued pos-
session by their ancestor and themselves ever since 1797,
and also a conveyance made in 1817 by the said Caroline
Gregory and her husband, to Isaac Walkins, of all of
her interest under her father's will, which had not been
previously sold and conveyed. The lessors objected to
the reading of that deed, and proved that Jeremiah Crab
had said, whilst he occupied the land, that he held under
Muse's patent and ''through Gregory and wife.**

The Circuit Judge instructed the jury, if they believed
these facts, to find for the defendants ; and verdict and
judgment were rendered for them accordingly.

The plaintiffs now insist that the testimony authorized
the presumption that Jeremiah Crab entered and held as
the tenant of Gregory and wife, by executory contract or
otherwise — that as her title could be passed only by re-
cord, a conveyance to Crab could not be presumed; and
that, therefore, the defendants are not protected by lapse
of time, and should be estopped from relying on any
outstanding title in bar of this action.

Were it admitted that Mrs. Gregory had not conveyed
to Crab, whilst she was a feme sole, and might have done
so by an unrecorded deed, which might be presumed
from more than forty years enjoyment; still we should
be of the opinion that the conveyance to Watkins was
admissible as evidence in the case, and authorized the
hypothetical instruction given in the Court below.

That deed shows, prima facie, that after its acknowl-
edgment, the title to the land litigated in this case was
not in Gregory and wife, for, as it conveys to Watkim

SPRING TERM 1842, 235

all her title as devisee, which had not, in fact, been pre- BoBBBTfow«ta/.
Tionslysold and conveyed, it either passed to him her RoBBBTmxtffai.
right to this land, or acknowledged that she had sold and
conveyed it to some other person ; and there is in the
facts now before us, no ground for presuming that, if she
had made any such prior sale and conveyance, it was
void or ineffectual. Then, admitting the presumed ten-
ancy, as urged in argument, it cannot operate as an es- heid^^aT tenant
toppel against proof of the fact that the landlord's title ^ectmenl'''^ b?
has been conveyed to another person whose reversionary landlord u not

estopped to show

right draws after it the tenant's allegiance. This is not a conveyance to
tarning against the title under which the entry was made, q"emfr' to^ the
bat it is following and upholding that title wherever the JJa^that^^'aUe'
landlords may have chosen to lodge it, and thereby to giaoee is due to
transfer or destroy the pre-existing relations of tenure, and
their own legal right of entry.

It is therefore considered by this Court, that the judg-
ment of the Circuit Court be affirmed.

ATHmry for appellants ; Morehtad ^ Rod for appel-
lees.

Robertson et al. vs Robertson et al Forciblb bit

TRY ANDDbT.

Appeal prom thb Wabhingtoit Circuit. Cose 73.

ForcQde entry and detainer. Coparceners. Joint posses-
sion. Judgment,

Cmn JvsnoB Bobbbtiom deliTered the Opinion of the Conrt jp^i n^

William and Gaiiher Robertson had been living in ^^ ^„, ,|^^^
Washington county with their father and mother, for at
least a year preceding the death of the latter, who sur-
vived her husband, and was married on the 14th of No-
vember, 1840. After their father's death, WiUiam super-
intended the premises for his mother, and seems to have
claimed an exclusive right thereto, in remainder after her
death. After her burial on the 14th, WiUiam and Gai-
ther remained in the house until the 16th, when the for-
mer went to Springfield to attend Court. Whilst he was
thus absent, Samud Robertson, another brother residing
in Springfield as an apprentice, went to the house to co-
operate with Gaiiher in taking exclusive possession and

336 BEN. MONROE'S REPORTS.

loBmMJici^t' keeping William out. WiMiam returoed in the evening
RoBBHTiow #tgi. of the 16th November, in company with Edward Pas-

Urn, and meeting GaUher and Samud at the front door,

which he attempted to enter, was repulsed with force.

He and Paxtqn then opened a window which had been

barred by his said brothers, and Paxton helping him into

the house through the window, he asked for a dirk, and

thereupon Gaither and Samuel abandoned the house,

and Paxton and family were instantly put into the excln-

si ve possession by William, some of the household goods

of Paxton being already there in his wagon.

A ii toeimioaiiy Qaiihtr and Samuel Robertson then sued out a warrant

J?rS°o^ a againt WUliam Robertson and E. Paxton, and another

forcible detain, foj ^ forcible entry and detainer; and a jury in the coun-

er, who haa beeii ^ ' j /

guiliT of no ac- ty found WiUiom guilty of the forcible entry and detaia-
auch an^ oneliaa ©r, and Paxton guilty of a forcible detainer "under WiL
fordbfe^^^entry* li*^Di«" That inquisition being traversed, was found true
£* ^'^^^id^^^^ ^^ *^® Circuit Court, where judgment of restitution of
aabatantiaiiy the exclusive possession was rendered in favor of the
^*^**' traversees. That judgment is now sought to be re.

versed.

The judgment against Paxton for a forcible detainer
only, when there was no proof of actual force in the
detention, is technically erroneous; but, as by co-opera-
ting with W. Robertson in his entry, be was, in jadg-
ment of law, a co-principal, and therefore guilty of a
forcible entry if William was guilty of such entry— we
will not regard aa essential an error in the mere form of
the inquisition.

The jury had a right to infer that, between their mo-
ther's death and the affray on the 16th, William tnd M-
(her Robertson were in the actual joint possession of the
premises ; for though WiUiam claimed the exclusive rt-
mainder, neither the foundation of that claim nor Gai-
iker's recognition of it has been shown.

Whether Samuel Robertson, after he had entered,
might be deemed to have been jointly possessed as a
co-parcener, the jury might perhaps have decided eitiier
way.

And though if WiUiatd only intended to maintain a
joint enjoyment and not to expel his brothers, their abao-

SPRING TERM 1842. 237

•

donment might be considered voluntary and his entry not BoBumoN eta/,
forcible, as against their joint possession with him; yet RouvtsoNeta/.
from all the facts, the jury had a right to infer that he in-
tended to expel them and deliver the exclusive possession
to Paiian, who seems to have gone with him prepared
for that purpose; and if such were his purpose, and his
calling for a dirk to execute it, induced S. and 6. Rob-
ertson to leave, he and his coadjutor, Paxlon, were both
gailty of a forcible entry to some extent: Comyn's Dig.
Fbrdble Entry, A. 2, n. o. Hawk, Plea, Cr. e. 64, s.
27. But the facts as exhibited in this record, did not»
in our judgment, authorize the verdict and judgment as
rendered, for restitution of the exclusive possession.

Whether such a judgment can be maintained, depends
on the legal solution of the question whether, upon the
facts hereinbefore recited, Gaither and Samuel Robert-
son coDld be deemed to have been in the exclusive actual
possession of the house when William entered, or, in
other wordbs, whether he had been actually disseised, un-
less he elected to so consider himself.

The jury had no right to presume that WiUiam had Two parceners
abandoned, or intended to abandon, his actual posses- "t.-i?l"i^^ 2^

' ' < possesaion, one

sion when he went to Court. The facts conclusively re- claiming the ab-
pel any presumption of such intention, and therefore his who is tempora-
momentary absence could not be distorted into a con- ?^er'^o'n "hu w^
atructive dereliction. In judgment of law, his actual 5^"'" »"?ropt»to
possession, whether sole or joint, still continued, unless, but is unsuc-
in the mean time there was an actual disseiston, and we ter'is 'not* dts^
aie of the opinion that he had not been disseised by |i2cf r^to'be!
Samuel's entry, and the mere intention manifested by "^ }^ aucceaa-
Baiiher and Samuel to prevent his return. Even if bie entry and de-
Goiiker was jointly possessed with William, his mere !lf ""vSufutSon
resolution to expel him did not operate per se, as an ex- ^ restored' to
pulsion actual or constructive. A joint tenant does not the joint, not tha

^ . , . 'J' f excluaive poa-

acqnire an exclusive possession, or dispossess bis co- aeaaion.
tenant, by resolving in his own mind that he will arro-
gate the sole occupancy, and thereby evict his associate.
Nor could Samfud'a entry with the mere intention to
exclnde William operate as a disseisin in foct, uiitil
WiOiam submitted thereto.

238 BEN. MONROE'S REPORTS.

RoBMTsoN^oZ. If one of two joint occupants of a house, on retura-
RoBVRTsoN c(a2. ing from church, whither he had gone only an hoar be-

fore with his wife, should re-enter his dwelling against
theonTw^o^rin the consent and even physical resistance of his co-tenant,
um"ort?nf abi ^^ ^^'^^^ ^^ absurd to assume as the law of the land, that
Beat, does not his temporary absence and the mere will of him who re.
seisin in fact, mained at home, had disseised him and made his re-
S*'enieied*tipon tum a tortious intrusion on any actual possession. His
electa to be dis- ^jght thus to re-enter, was as clear and perfect as that of

the other to resist being forced out could have been. A
successful resistance of his re-entry would, in fact and in
law, have been an eviction, for he had never been dispos-
sessed by his own act or any previous act of the co-tenant;
and can it be argued, that in such a case, the only legal
mode of reinstating himself and wife under their oM
roof, would be a warrant of forcible entry and detainer,
which, on a traverse, might not open the door to them
for months, possibly not for a year? Or suppose a stran-
ger had intruded in his absence, and presenting himself
at the door on his return, had resisted his entry, would he,
by entering nevertheless, against the will of such inter-
loper, be guilty of a forcible entry on another's posses-
sion, for which he might be evicted by warrant, and the
intruder restored by the arm of the law? Such an idea
would be worse than ridiculous. He had never been
disseised, and of course there was no actual and exclu-
sive possession in any other person — his own actual pos-
session still continued.
Diiaeisin of '^Disseisiu of things corporeal, must be by entry aid
mni?bo^7en*^ "flcftwiZ dispossessioti, as if a man enters, by either force
and actual dia- ««or fraud, into the house of another, and turns, or at least
^ ^ "' * 'keeps, him or his servants out of possession:" 3 Bla.

Com. 169; 3 Co. Lit. 4.
One co-parcen- If, therefore, OaUher and Samuel Robertson had, by
•noSer***BhoSS f<^^^ 0^ Otherwise, kept WiUiam out, or he had elected
^**Vw* of^e ^ '©^ro** and avoid the peril of collision, be would there-
latter, be reator- by have been disseised, and could therefore have main-
BiTe ponrnfoni tained a warrant for restitation ; but he determined other-
^i^t^^mlSio]^ ^i^®' *"^ ^" therefore neither put out nor kept out of

his actual possession, which he had neither abandoned
nor lost.

SPRING TERM 1842.

239

If therefore, there is, as to William Robertson, any
legal right to restitution in this case, it cannot be, as ad-
judged below, a right to the exclusive possession, but
only to an occupancy in conjunction with him.

And consequently, as in our opinion, the evidence did
not authorize the verdict and judgment as rendered, for
restitution of the entire and exclusive possession, the
jodgment is reversed and the cause remanded.

Harlan and Morehead ^ Reed for appellants; McHen-
ry for appellees.

Bru)
Bkaolbt.

Byrd vs Bradley.

Ebror to thb Christian Circuit.
I^atutulent conveyances.

Josei BIabsrall dellTered the Opinion of the Conrt.

EvEBT mortgage or deed of trust, by which a debtor
conveys the whole of his property, for the security of a
part only of his debts, tends necessarily to hinder and
delay his other creditors, to some extent, and may, per-
haps, defeat them altogether in the collection of their
debts ; and yet it seems to be well established that a
debtor may prefefa portion of his creditors, by appropria-
ting his property, either to their immediate payment or to
the security of their demands, within a reasonable time,
if he do so in good faith and without a fraudulent pur-
pose. If, under the pretext of securing some or even all
of his creditors, the debtor make a conveyance in trust,
by which, without the concurrence of bis creditors whose
debts he professes to secure, he intends to protect, and
does in fact, if the deed is effectual, protect himself in
the enjoyment of his property, such a deed is undoubted-
ly fraudulent, and may be disregarded or set aside by
any of his creditors; and a partial deed, even if assented
to by the preferred creditors, would be alike fraudulent
and void as to the other creditors, if its intent and effect
be such as have been just supposed.

Chaucbbt.
Case 74.

April 11.

If a debtor under
the )>retezt of
securioff Booie,
even all, his
creditors, make
a conveyance
in trust, by
which, virithout
the concurrence
of the creditors
whose debts are
proposed to be
secured, he in*
tends to protect
himself in the
enjoyment of his

Sroperty, snch
eed is undoubt*
edly fraudulent
— And a partial
deed, even if as*
sented to by Uie
preferred cred-
itors, would be
aliJce fraudulent
and void, if its
intent andeffeet
be to protect the
debtor in the en-
joyment of the
property.

240 BEN. MONROE'S REPORTS.

Btko rj^Y^Q absent of the prefeiied creditors may, in general,

Bhaplbt. be presumed, in the absence of all countervailing cir-

ciicumstancea ^^^^u^^^^c®* ^r. proof ; and the intent with which the deed
from which a was made, may be determined, not only by the terms of
est may'^bT in- the deed itself, but also by extrinsic circumstances at-
fened. tending and following its execution. Among these cir-

cumstances, the fact that the preferred creditors were cog-
nizant, or that they were ignorant of the deed ; and the
length of time during which they remained ignorant;
their assent or dissent to it when informed; the activity
or inactivity of the trustee; his taking the control of tbe
property for the purposes of the trust, and so far as al-
lowed by the deed, or its being left in the use and enjoy-
ment of the debtor, and the length of time for which it
is thus left, are all entitled to consideration.
But assuming the assent of the preferred creditors in
permUted to' re- ^^is csse, the fact that the debtor was permitted to remain
Son^of "personS ^^ *^® possession of the personal property conveyed by
property convey- the deed, for three or four months, is not, ipso facto, evi-
months, is not, deuce of a fraudulent intent as the last instruction seems
iEnceof*a fmu" *^ '^^P^Y» ^^ut is Only one of those circumstances from
*duient intent which the jury might or might not, according to their own

sound discretion, find*the transaction fraudolent. The
instruction which implies that the deed is fraudulent as to
the creditors not preferred, if it withdraws the property
from their executions, is also contrary to tbe tenor of ibis
opinion, and as we think, erroneous.

Wherefore, the judgment is reversed and tbe cause le-
manded for a new trial, on principles conformable to thii
opinion.
Morthead i!jr Reed for plaintiff.

SPRING TERM 1842. 241

Narcissa's Executors vs Wathan et al. Cha»cert.

Error to the Nelson Circuit. Case 75.

Trustees. Administrators and executors. " Rescission of

contracts,

Cntu JosTiCB BoBSRiaoN delivered the Opinion of the ConrL AnrU 13.

Austin Hubbard, who died in Bardstown in the year xht •as« stated.

1823, without legitimate issue, and possessed of an es-
tate, real and personal, then estimated at about $13,000»
devised the whole to a mulatto female slave of Dr. Elliot,
named Narcissa, on condition that her freedom could be
purchased on reasonable terms, otherwise to Austin F.
Hubbard.

The will was offered for probate in July, 1823, but
being contested by the testator's collateral heiis, was not
admitted to record in the County Court until May, 1824.
Iq the mean time, the estate was committed, by the pro-
bate court, to Thomas Wathan, who seems to have been
one of those w^o contested the will.

The order admitting the will to record, having been
brought to this Court, by appeal, was not finally disposed
of until our Spring term, 1831, when it was affirmed.

After the affiimance, Peter Sweets, who had, as early a3

1824, bought the contingent interest of Austin F, Hub-
bard for $100, and had attended to the preparation of the
case in this Court on the side of the will, offered to buy
Narcissa with the avowed purpose of holding her as a

slave; but her master refusing to sell her except for the '

purpose of liberation, in fulfilment of the testator's inten-
tions, the said Sweets and the curator Wathan, agreed
with her and Elliot, that they would pay him $350 for
emancipating her, if she would convey to them her entire \

interest in the testator's estate. Accordingly, at the Oc-
tober County Court, 1831, Elliot acknowledged a deed of
emancipation; and simultaneously or immediately after-
wards, Narcissa signed a written relinquishment to Sweets
and Wathan, of all her right to the property devised by
A, Hubbard,

Vol. II. 31

242 BEN. MONROFS REPORTS.

NAxcxtfli's Bx's. In the succeeding spring. Sweets filed a bill in chance-

Waihah et ai. ty against Wathan, for a division of the spoil, charging

that the personal estate was worth above $10,000, and

the biS*of°Wft- the real estate and its profits, more than $5000.

than et ai. Narcissa, who was made a defendant, made her an-

AUcgatioM of g^gj. a cross bill, in which she ailed ged that Sweets and

bill Wathan had defrauded her, by concealing the value of

the estate, and falsely representing that it was insolvent,
or not worth more than about as much as would pay the
$350 given by them to her master for her liberation; and
therefore, she prayed for a rescission of the relinquish-
ment thus fraudulently procured, and for a restitution of
the estate to her as devisee.

Sweets denied the alledged fraud and fraudulent repre-
sentations, and Wathan denied "all fraud,'' but did not
respond to the specific allegations.

The exhibits indicate that about $1400 of the personal
estate remain, after paying all charges on that fund, and
that the real estate is worth at least $1500; and the depo-
sitions prove that Wathan represented to Elliot, when
negotiating in respect to Narcissa, that the estate was
not worth more than the sum agreed to \\d given to him
for emancipating her, and also prove that Sweets said to
him that he supposed it might amount to as much as
would indemnify him for his services and expenditures.
Narcissa died and devised her whole estate to trustees,
with plenary power, and in trust for the purchase and
emancipation of her children, born whilst she was a
slave.

Decree of the But, on final hearing, her cross bill, revived in the

Circuit Court names of her trustees and executors, was dismissed; and

that decree is now sought to be reversed.

It seems to us that the invalidity of the contract with
Narcissa, cannot be reasonably doubted.

It is evident that Sweets was anxious to acquire the
estate, and knew much about the extent and value of it.
He had voluntarily connected himself with it, and as-
sumed the relation of a quasi trustee for Narcissa*
Wathan occupied, still more directly, sl fiducial position,
and must be presumed to have been well acquainted with
the condition and value of the estate which had been in

SPRING TERM 1842. 243

his possession and under his management for more than NAmasiVsix's.
seven years. Wathan et al

It was the equitable duty of both of them, therefore, ~
and especially of Wathan, to disclose to Narcissa, frankly otherfiduciarief ,
and explicitly, the situation of the estate and her potential Sg*"with°'^ihose
• interest in it. In such a purchase by a trustee, the law ^^^^ *'® ^°^«'-
will even presume fraud, prima facie. And that pre^ ciai fund, should
sumption is not weakened but fortified by the extrinsic franlt'and^^ex^iJ
facts. The condition of Narcissa, the tacit admissions Jn^J^ tiSfr^in?
of Wathan, and the positive proof as to Sweets, will i«F?»^' ^^ *

II n • 1 1 1 1 , I n 1 failure to do so

allow no room for a rational doubt that they made a fraud- win consUtute a
ulentuse of their peculiai knowledge and position, and S°re»ciMion of°»
unconscientiously deceived and imposed on an isolated ^hSi™ f Aem''
lictim, who had not the ordinary means of rescue or re-
sistance.

It was Wathan's duty, as the depository of the estate,
to execute the testator's intentions in good faith, for Nar-
cissa*s benefit. And there can be no doubt that, had not
he and Sweets paid to Elliot the $350, some other person
would have done so, especially if Wathan had disclosed
candidly, as it was his duty to do, the extent of the es-
tate. Nor is there any ground for doubting that Narcissa
would have been retained in slavery and Sweets would
have enjoyed the estate, under the alternative devise to A.
F. Habbard, could he have bovght her as a slave from

Em.

This seems to us, therefore, a clear case for rescission.
And all that Wathan can equitably claim, is a credit for
his half of the $350 paid to Elliot.

The utmost amount to which Sweets could be entitled,
woald be a reimbursement of his expenditures in estab.
lishing the will ; his repairs made in good faith on the
real estate, and his half of the price paid to Elliot; and
his estate is chargabie with the reasonable value to him,
of the use of that property since he obtained the posses-
sion thereof. It might be doubted whether he could rea-
sonably demand a reimbursement of what he expended
in helping to establish the will, because there is much
cause to apprehend, that he made those expenditures for
himself, as purchaser from A. F. Hubbard, and with the
intention, (if the will should be established,) of keeping

244

BEN. MONROE'S REPORTS.

HOSTOOICKKT

Books el ah

NarcissA in slavery and thereby holding the whole estate
for his own benefit.

Bat as his services have, in fact, benefitted Narcissa,
we are disposed to allow him restitution out of the estate.

On the return of the case to the Circuit Court, an au-
ditor should ascertain and settle the whole estate accord'
ing to the principles of this opinion, and a final decree
should, thereupon, be rendered accordingly, in favor of
Narcissa's executors and trustees, and also, as between
Sweets and Wathan, upon equitable principles as herein
indicated.

Decree reversed and cause remanded.

M Henry for plaintiffs ; Monroe for defendants.

Debt.
Cflae76.

ApHl 13.

One partner Iras
no implied an-
thority to bind
hiB co-partners
bj deed.

Montgomery v$ Boone et al.

Error to the Washington Circuit.
Deeds. Unsealed instruments. Partners.

Chief Justicb RoBBKTSoir delivered the Opinion of the Conrt.

The only question in this case is whether a written un«
dertaking to pay a partnership liability, signed in the
name of the firm and sealed by one of the partners, with-
out the express authority of the other co-partners, is the
legal obligation of all of them, or of him only who affix-
ed the signature and scrawl.

Adjudged cases in England authoritatively established
the doctrine that one partner has no implied power to
bind his colleagues by deed, and however arbitrary that
doctrine may now be deemed to be, or however incon-
sistent with the harmony and reason of the common law,
this Court has no authority to overrule it.

The principle thus settled as to deeds, seems to have
been recognized as applicable to all contracts under seal
to pay money, even though a seal was not essential to
the obligation of any such contract. This may hare
been a perversion or extension of the principle as to
deeds, which was probably applicable at first only to such
writings as would be ineffectual without a seal, and not
to such as might be as binding and effectual without as

SPRING TERM 1842. 245

with a seal. All judicial question however, has been Montooic4ht

concluded on this subject, also by this Court. Boons et ai

And although, since the statute of 1812 as to executo- 7

ry writings, a piomissory note for money has here all the Ken°^y!m>tw[tE

legal dignity and effect of a bond under seal, neverthe- J^of'f8{'2,''gwI

less our predecessors decided in the case of Trimble vs >n« to a promis-

o • 1 A* A rr -m* niw n t i i ^ BOTy DOtC lOF

Smdh, (2 A. K, M, 37&,) that one partner had not an money, aU Uie
implied authority to bind his associates by a covenant, o^^^^tSI^^uSer
with a scrawl— and in Southard and Star vs SUtl, (3d ^tJ^'pSSer^'^y
Afon. 438,) that he has such authority to bind them by Buch unsealed
a covenant under our statute, without a seal or scrawl ; a seal or scrawl
and hence, according to these cases, if a partner, in exe- ^tJjSfcnu ^^
CQting several notes for a debt, in instalments, should
happen to affix a superfluous scrawl to one of them and
omit it as to the others, the first might be binding on him-
self alone, whilst the others would bind all the partners;
and this would be the only legal effect of the scrawl,
without which the note would have the same effect in
torn] other respect.

After the enactment of the statute of 1812, it might
have been perhaps allowable; and, if allowable, it might
have been better to have determined either that the im-
plied authority of a partner applied to all notes for mo.
ney, whether sealed or unsealed, or that it did not apply
to any, as all had become, in effect, sealed obligations.

Bnt the law, as adjudged in the cases just quoted, has
been well understood, and has never been overruled or
disturbed by either legislative or judicial authority, and
therefore, as in such a case of mere arbitrary law, it is
not so material what rule is adopted, as that it should be
fixed and universal — ^we will take the doctrine, on this
subject, as we find it in former adjudications by this
Court.

And, therefore, our conclusion is, that as the covenant
in this case had a scrawl affixed to it, the partner who
executed it had no implied authority thus to bind his
co-partners; and that therefore as adjudged in the Court
below, that covenant is not, in the judgment of techni-
cal law, their deed.

The judgment of the Circuit Court is therefore alBrmed.

Kdly for plaintiff; no appearance for defendant.

246 BEN. MONROE'S REPORTS.

CovBNANT. Burns vs Allen, &c.

Case 77. Erhor to the Bath Circuit,

Declaration. Breaches. New trial. Arrest of judgment.

April 13. JuDGB Marshall deliveied the Opinioa of the Court

The case stated. By articles of agreement entered into in October,

1836, between Burns on the one part and Allen, &e.
on the other. Bums purchased of Allen, &c. 800 hogs,
to be delivered at Petersburg, Georgia, on or. before the
10th day of January, 1837, and paid for by Burns in fif-
teen days thereafter, at the rate of seven dollars per hun-
dred pounds, gross weight, he to pay the expenses incur-
red, after delivery, and reserving the light of designa.
ting a different point not more distant than that named
in the articles for delivery.

The declaration by Allen, &c. on this covenant alled-
ges, that on the 24th of December, 1836, the plaintifis
did deliver to the defendant's agent, and by bis election
at a different place from that named in the covenant, six-
ty-one head of the said hogs, weighing 14,871 lbs. gross;
and that afterwards, and before the 10th day of January,

1837, at another named place designated by the defen-
dant's agent, they offered to deliver the residue of the
said 800 bogs in good order, &c. but were prevented,
&c. by the absence of the defendant and the refusal of
bis agent, &c. and that the defendant had not paid for
the sixty-one hogs, &c. &c. nor for the residue of the
800 hogs, nor had he paid the expenses incurred on said
residue, after the offer to deliver them. The defendant
by his plea, denied the delivery of the sixty-one bogs
and the offer to deliver the others as alledged, and issue
being taken, the jury found for the plaintiffs $1299 48
in damages, on which judgment was rendered for the
same sum. No exception was take^n to any opinion of
the Court rendered in the progress of the trial; no mo-
tion was made for a new trial, and none in anest of
judgment; but the defendant, Bums, prosecutes this writ
of error for the reversal of the judgment, on the sole

SPRING TERM 1842. 247

ground that although there is one good breach alledged Bvrwm
in the declaration, yet as there is at least one bad breach, Au.en, ac.
viz: in regard to the non-payment of expenses incurred
on the hogs, which were not received after they were
offered and refused; and as the verdict was general, not
designating the breach for which the damages were asses-
sed, the judgment was not authorized by the pleadings
and verdict, and should therefore be reversed.

It is a well established doctrine in the English prac- According to ihe
tice, and has been recognized in this State, that if the if the deciara-
declaration contain one bad breach, with one or more bad breachVuh
good ones, and there be a general verdict, the judgment, b?\ch"s°^*^°ai^
nothing more appearing, should be arrested. The same ing farther ap-
doctrine prevails in England, if the declaration consist ?or"o°enterju^-
of several good counts and one bad one, which is in Jid"*8o^y^?he
principle the same case. And it may be doubted wheth- declaration con-

tain several good

erthe statute of Kentucky, which, although the English counts and one
rale in the case of one bad count, when the declaration ""
contains also a good one, might not, by reasonable con-
stniction, have been extended to the case of one bad
breach, vfhexe the same count contains one or more be-
sides, which are good. But the statute has received a
literal construction, and we are not now to depart from it.

The only reason why the judgment should be arrested But in England
in either of the cases, is, that it is uncertain whether the jfffered^^appHca-
verdict may not have been founded upon the defective bie to the good
count or breach; and it is accordingly laid down, where verdict may be
a general verdict has been taken on evidence given, j^gcs^notesl^*
only on the good counts, the Court (in England) will {jjJ^^^S!!?^*'
permit the verdict to be amended by the notes of the
Judge before whom the trial was had ; or if it appear by
the Judge's notes that the damages were calculated on
evidence applicable to the good counts only, the Court
will amend the verdict by entering it on those counts,
though evidence was given applicable to the bad counts
also: 1 ChiUy'sPl (ed. 1833,) p. 448; 2 Saunderslll,
i. ^c. It is apparent therefore, that the circumstance
that the verdict is general in its form upon a declaration
containing one bad count, or upon a count containing
one bad breach together with others which arc good, will
not itself be a conclusive ground for arresting the judg-

248 BEN. MONROE'S REPORTS.

BuRiia meat: but that if the verdict be in fact rendered on evi-
Allen, ac. dencc applicable only to the good count or breach; this,
if asceitained, will furnish suflScient ground for obviating
the objection to its form, and that the Court whose duty
it is to render or refuse the judgment, will resort to other
means even out of the record, for ascertaining whether
the verdict is in fact founded on the good count or breach,
and will even change the record so as to make the ver.
diet comport with the fact, and then render the judg-
ment.

In England, the means of ascertaining the fact were fur-
nished to the Court in bank, by which the" judgment was
to be rendered or refused, by the notes of the Judge who
presided over the trial of the issue at nisi prius. In
this State they are furnished by the personal knowledge
of the Judge himself, who is to render or refuse the
judgment, and who, having presided at the trial, may
know that no evidence was offered under the defec-
tive breach* or that if offered, it was rejected, or that the
jury were instructed to disregard it and did so, or by com-
parison of the verdict with the evidence, he may know
that the damages were, in fact, assessed upon the good
breach alone. Such knowledge, derived in any of these
modes, would undoubtedly authorize the Circuit Judge
to overrule a motion in arrest of judgment, if made ia
that Court; and if, as be might and should do, (if they
did not otherwise appear,) he should, on overruling the
motion, state the ground of his knowledge, or if they
otherwise appeared, his judgment would be alBrmed by
this Court, and perhaps it should be affirmed on the pre-
sumptions arising in support of it, even without any such
statement, or perhaps he might cause the verdict to be
amended.

It is apparent then, that in considering the question,
^""'^udi^wt made in this Court for the first time, whether the judg-
has been render- j^^j^i should have been arrested or should now be reversed

ed m the Oourt

below, on a de- because there is a general verdict and a declaration con-

tofnUig some taining one bad breach with one or more good ones, a

Kd^ "breaches! question which might be affected by circumstances,

and no objection dthovs the pleadings and verdict, we are deprived of those

to evidence, mo- , - , . ° .. i . i ,i r^. . t li u

tion for a new grounds of determmatiou which the Circuit Judge would

SPRING TERM 1842. 249

have had, and which we might and probably should have, Buhns
if a motion in arrest had been made before him; and all£n, &c. .
that we are called upon to revise a judgment without the trial or in arrest
fads and appropriate means of knowing those facts ^t^'ni'^ot
by which, although not appearing in the pleadings and le^cweihejudg-
verdict, the technical objection exhibited by them might eume that tha
have been obviated and the judgment fully justified. If menr^^hcwon
this state of things does not furnish sufficient ground, on ^"esOmon^^a'^
the principle which requires the most favorable presump- piicable to the
tions in favor of the judgment, to require or even to au- only. '**^ "
thorize our refusal to consider the objection when made
here for the first time, it at least authorizes us to take hold
of every presumption fairly arising from the record which
will tend to show that the verdict was, in fact, founded
upon evidence applicable to the good breach only, and
thus to support the judgment. Indeed, the statute alrea-
dy referred to, which authorizes a judgment if there be
one good count, though the verdict be general, is based
upon the presumption that if any evidence should be of-
fered under the bad counts, it is either rejected by the
Court or disregarded by the jury, and it is by no means •
certain that a similar presumption ought not to be in-
dulged in case of a single count containing good and bad
breaches.

Such a presumption would derive considerable weight
in this case, from the favorable inference which might be
drawn from the fact that no exception was taken to any
opinion of the Court during the trial, and no motion af-
terwards made either for a new trial or in arrest of jadg-
ment.

But besides all this, there is a most minute and precise When the reaov-
coincidence between the damages assessed and the sum J^ildshows- a©
produced by the price of the 61 hogs, of the weight al- pa^tyhad aright
ledged in the declaration, with interest thereon from the good breach in
time of payment, fixed by the contract, up to the time of thfs Coun ^flt
trial, on the 16th and 17th of March, 1841, so that an |^\\ Hf^;^
inference arises on the face of the record itself, that the ^ i»«*'d and
verdict was, in fact, given for and confined to the price lessed on a bad
of these hogs, with interest. And, moreover, upon ex- *"**®***
tmining the declaration, we are of opinion that it con-
tains no sufficient averment which in strict propriety.
Vol, II. 32

950

BEN. MONROE'S REPORTS.

Sramva

FjlAZIBJI.

would authorize the admission of evidence showing more
than nominal damage for the non-payment of expenses
incurred on the hogs, not received by tjjie defendant, Bums,
even if the articles of agreement bad contained such a
covenant as this breach supposes ; for it is no where aver-
red that any expenses had been actually incurred after the
offer and refusal; so that to defeat this judgment, we
must not only presume that evidence was admitted by the
Court and considered by the jury in support of an alledg-
ed breach, which is in truth no breach of the contract,
but that it was admitted and considered as proof of dam-
ages to an extent to which it would not have been prop-
erly admissible even if this supposed breach had been a
real one ; and this too against the strong coincidence and
other circumstances already noticed, which tend to the
opposite conclusion.

Under all these considerations we are of opinion that
the fair deduction from the whole record is, that the dam-
ages were assessed upon evidence applicable only to the
good breach, and that any evidence which may have been
offered under the bad breach, was either rejected by tbe
Court or not considered by the jury in their assessment of
damages, and that in such a state of case, the judgment
should not be reversed upon the error assigned.

Wherefore, the judgment is affirmed.

Hanson for plaintiff; Peters for defendants.

Repleviic.
CaS6^S.

iprUtL
!%• ciuM •Utdd.

Stephens vs Frazier.

Erbor to thb Garrard Circoit.
Rqdtvin. JusiificcUion. Fravd. Shaiff's reium,

Omxt JvsnoB Bobbsiboit delivezed the Opinioji of th« Court

JoBBPH Stephens sued James Frazier in rqplevin, for
various articles of property, of considerable value, which
tbe latter, as deputy Sheriff of Lincoln, had taken and
held under sundry ejcecutions of fi. fa. against Samud
Stq>h$ns, the father of the plaintiff, and who lived with
him.

SPRING TERM 1842. 251

A replevin bond having been executed, a writ com- Stbpbihi
manding the restoration of the property and the citation of raAzua-
Prazitr was returned, *'txecuUd on James i^flzicr,*' who
appeared and filed a cognizance acknowledging the ab
ledged caption, and attempting to justify it under the
executions against Samuel Stephens, by averring that all
the property taken was that of the said Samud, and sub-
ject to those executions.

A demurrer to the cognizance having been overruled,
the plaintiff filed a plea traversing the averment of prop-
erty in the defendant in the executions, and insisting that
it was in the plaintiff, and not subject to be seized under
the executions as averred by the defendant.

And a jury sworn to try that issue, having found for
the defendant, the Court rendered a judgment of rdoma-^
to reverse which this writ of error is prosecuted.

The first objection to the judgment as urged here« is, Tojusa^aiwiff-
that the cognizance is substantially defective, both as a ^JJ^^^^f
plea of justification and as a Count for a return of the of a sheriff, Uj»
property, because, 1st, it does not expressly alledge that alled^e the t»k-
the executions of fi, fa, commanded the Sheriff to take }5f ^aioBt^^
the goods of Samud Stephens; and 2d, it does not aver ^^"^Jf'e^™^
that those executions were founded on valid and subsist- that ofjilBintSf
ing judgments. But in our opinion, this objection should ^e ezeoatioxu
be overruled.

The plaintiff claimed title through an alledged pur-
chase under prior executions in the name of his uncle
against his father, the said Samud Stephens, upon about
thirty judgments confessed nearly two years before the
date of the executions upon them: and the defendant
proved facts strongly conducing to show that the said
purchase was ostensible merely, and fraudulent as to the
creditors in whose behalf he had seized the property as
that of Samuel Stephens, the original owner. If no such
fraud infected the plaintiff's claim, the property would
not have been liable to the executions against his fatherr,
in the defendant's haAdfs, and on that hypothesis, tfa6
executions furnished no legal justification to the defen-
dant. Proof of the alleged fraud was therefore as essen-
tial to his justification as to his title to a judgment of
return. And to make the- fraud available for any purpose

262 BEN. MONROE'S REPORTS.

^*o?""' in this case, it was material to show that the plaintiffs

Fraziee. in the executions were judgment creditors of Samvd

Stephens. If the cognizance be good as a justification,

it must consequently be equally sufiicient to entitle the

defendant to a judgment for a return of the replevied

goods; and it does seem to us that it is substantially

good for every purpose, especially after verdict on the

issue.

An officer a7er- We suppose that the averment that executions of/. /a.

^PfL fa. were Were directed to the Sheriff might, without any unreason-

lands^»' u \^ii ^^^® presumption, be judicially understood as implying

bepreBumedtbat that those wrils authorized him to take the property of

those writs au- ,, . . . , ., • i • , , ./, ,

thorized him to the party agamst whom they were issued; mdeed, if they
«rty otVefendant ^^^ ^^*» ^^^7 ^ere falsely characterized as executions of

therein- ' ji^^ f^^^ias.

Where an officer And, after pleading the executions, the averment that

ing 0? property the property levied on was that of Samuel Stephens and

Sefendant^here- subject to the executions, was all that was necessary to

5n, & pit' f claims show, on the face of the cognizance, both a rijrht to le-

under a previous ,..«. -, . t

purchase of de- tum and a justification of the seizure. It was not ne-
cution^ "officer cessary to aver that those executions were issued on sub-
"w^hase fraud^^ sisting judgments. The necessity of showing such judg-
lent astocredi- ments, resulted altogether /roTTi /Ae plaintiff's proof of
ingso^how the his purchase, to avoid which ^ it might have become ne-
whfcT°the''Sxe- cessary to show that it was void as to the plaintiffs in the
cuUon plead executions, and who, for that purpose, must have appear-

ed to have been judgment creditors of Samuel Stephens,
and of course it was proper and sufficient to move, as
was done on the trial, that they were such creditors, by
exhibiting records of the judgment. The cognizance
being good, without averring the judgments, and the plea
thereto not disclosing the ground of the plaintiff 's claim,
who proved it without special averment, surely the de-
fendant had a right, without anticipation, or even being
presumed to know the fact of the plaintiff's alledged
purchase, to repel his proof thereof, by showing that the
purchase was void (as to the execution creditors) by all
evidence to that effect, which might have become neces.
sary or useful.

But even if an averment of the judgment could have
beM essential on a demuixer to the cognizance, issue of

SPRING TERM 1842. 263

fact having been concluded and tried, the defect was Stbpbeb*
cared by verdict, and the general alLegation as to the Frazixr.
executions authorized proof of the fact, that there were
judgments authorizing those executions, and which was
uot inconsistent with, but rather implied by that general
allegation.

The next objection is that the judgment of retomo is in replevin if Uie
erroneous, because the record does not show that the "executed*' and
goods had ever been restored to the plaintiff. the ^action* *a

It was the officer's duty to execute the writ fullv. The '^^^f^^^^SLlV

^ • toiino IS proper,

chief command was to restore to the plaintiff. the proper- the presumption
ty for which he had given a replevin bond and brought turn that the
this action. The return on the writ should respond to Ken^iMtored to
the entire command of it; we must presume that it does P^^^^o^omm^d
and that the officer did his whole duty, if his endorse- ofUiemlt.
ment will allow such an interpretation; and we are of
the opinion that ''executed,*' as endorsed in this case,
prima facie^ imports that the officer had done every thing
as to the defendant, which the writ ordered him to do.
And this deduction is confirmed by the fact that the
plaintiff never made any objection to the return, or mov-
ed any further process, or made any suggestion of de-
linquency in the officer, or even an intimation that he
had failed to restore the goods, or to return that fact, or
assign any excuse for the omission. 'It is therefore clear
to as that the judgment for return was proper, if the

i verdict be sustainable.

The only other objections to the judgment are, tst,
that the verdict was not authorized by the evidence, and
2d, that there was error in refusing instructions; but as
already suggested* there was proof tending strongly to
sustain the verdict, and we now add that, if not conclu-
sive it was sufficient to authorize the finding by the jury,
and therefore this Court cannot disturb the verdict, for
want of proof to justify it; and as to the alledged refu*
sal to instruct, we shall only remark that though some
instructions offered and refused might have been abstract-
ly proper, there could have been no injuiious error in

\ withholding them, because they only reiterated what had
been given to the jury in a more comprehensive instruc-
tion equally availing and effectual in every respect.

254

BEN. MONROE'S REPORTS.

ReiD

Heaslbt.

Having thus noticed all the objections made in this
Court to the judgment, which are deemed worthy of con.
sideration, and perceiving no available error in the re-
cord. It is, therefore, considered that the judgment be
affirmed.

Bradley, Turner, Owsley <^ Goodloe for plaintiff;
Harlan for defendant.

Ejectment.
Case 79.

April 14.
The case stated.

Reid vs Heasley.

Error to the Garrard Circuit.
Ejeclment, Sheriff sale of land. Estoppel.

Jdsob Marshall delivered the Opiaion of the CourL

The principal question presented in this case is,
whether, when a debtor by judgment and execution, be-
ing in possession of land, verbally requests and directs
the sheriff to levy upon the land and sell it in satisfaction,
and the sheriff supposing him to have the legal title,
levies and sells accordingly, proclaiming at the time of
sale, that the land was given up by the debtor to satisfy
the execution under which it was offered, and the debtor
being present, did not then, and had not previously dis-
sented or disclosed the nature of his title; be can defeat
an ejectment afterwards brought by the purchaser, upon
the sheriff's deed, to recover the possession of the land
from him, by showing that he had an equitable title by
bond only. It has been frequently decided, that in an
action of ejectment against the debtor, proof of his pos-
session before and at the time of the levy and sale, is
sufficient prim/z/^ici^ evidence of title to authorize a re-
covery on the sheriff's deed; and that the defendant can-
not, in such a case, defeat the recovery by showing an
outstanding title in another. It has, however, been de-
cided, though not in a case where the sale was made with
the assent of the debtor, that he may defeat the action by
showing that be had an Suitable title only, because such
title was not subject to levy and sale : Major vs Deer^ (4
J. J. Marsh. 686 ;) Million vs Biley etal.(l Dana, 369;)
but can he do so when the levy and sale are made vitb

SPRING TERM 1842. 265

bis assent and under tb^ supposition that he had the legal Bbxs

title? ^ HgAJLET.

In the case of Major vs Detr, (4 /. J. Marshall,
585,) this Court, in discdssiog the question whether and
bow far the debtor is estopped to deny the title of the
eiecution purchaser, uses the following language : ' ' When
"the land is sold at the instance or with the assent, ex-
"piess or presumed, of the defendant, as he is benefitted
"by it, he should be bound by it as his own voluntary
*'act; and, therefore, should not be permitted to deny
*'that the purchaser acquired any title." In opposition
to the doctrine thus expressly asserted in the case of
Major vs Deer, when the question of estoppel was under
eonsideration, reference is made to an intimation in the
case of Williamson vs Logan, (IB. Monroe, 241,) in
wbich the Court, in considering the effect of a parol au-
thority to the ofBcer, to sell in gross a tract of land held
in severalty by the defendants in the execution says:
"Though a parol authority to the oflScer to sell and con-
"vey land, might not be good under our statute of frauds
"and perjuries, when the officer had no legal authority to
"sell and convey, independently of the (parol) authority
"given, yet when he has the legal power to levy, sell and
"convey, a party interested may, by parol, give authority
"to sell in gross," &c. &c. If the principle here inti-
mated bad been positively asserted, it would still have
been inapplicable to the present discussion, in which ti)e
question is not simply whether, in the absence of other
legal authority in the officer to levy and sell, the mere
parol directions of the debtor would confer such author-
ity upon him, so as to make his subsequent sale and
conveyance valid, but whether it is not to be assumed, as
conclusively proved against the debtor in this contest with
the purchaser, that he had such title as the officer was au-
aatborized by law to sell and convey in satisfaction of the
judgments and executions against him. And his direc-
tions and assent are relied on, not as in themselves con-
fening an authority wbich did not otherwise exist, for it
was not supposed at the time that any authority from him
was necessary to make the levy and sale valid, but as
precluding him from showing or relying upon the fact

256 BEN. MONROE'S REPORTS.

Reib which would prove that theie was no authority indepen-
HBAaLBY. dently of his assent.
. TT The principle on which the plaintiff's right of recovery

in possession of depends is this, that the possession of the execution debt-
^ti ifuptoUie or is sufficient evidence of such title in him as authorized
MtiS^iSexeci^- *® sheriff to levy upon and sell the land; and thatal-
tion, and who though when possession is the only fact relied on by the
topped ' after, purchaser as evidence of such a title in the debtoi as was
M 'efccimcnt'^2^ subjcct to levy and sale, the latter may show that he had
gainst him by the not such title but a mere equity, he will be deprived of

purchaser hold- ^ / » r

mg ihe sheriff's the benefit of this fact and estopped to deny the title of
ground °that he the purchaser if it be shown that the levy and sale were
quify af Uietime ^^^^ ^^'h his assent, and especially if made under the
of sale. supposition, (as would be presumed in the absence of

proof,) that he had the legal title.

This principle is entirely consonant with justice, and
seems essential to the attainment of its ends. It stands
upon the basis of honesty and good faith. It 4s sanc-
tioned by the express opinion of this Court, in the case
of Major vs Deer, uncontradicted, as we believe, by any
adjudication or deliberate dictum directly upon the point,
and should, as we think, be taken to be the law of the
case.

. As the estoppel in this case depends upon facts, of the
existence of which the jury should be the judges, it could
only be taken advantage of by way of instructions from
the Court, directing them that if they believed those facts,
they should disregard the evidence of equitable title only
in the defendant, and that if he were in possession of the
land before and at the time of the levy and sale, and of
the service of the declaration, the purchaser, if he bad
the sheriff's deed before the date of the demise, was en-
titled to recover.

Upon the evidence appearing to have been given on the
trial, the jury would certainly have been anthorized to
find the facts assumed in this opinion, and to which its
principles are applied, and under such an instruction as
is above intimated, they might have found for the plain-
tiff. But the instructions actually given if consistent
with themselves, which is not entirely obvioas, seem to
be in some respects misleading and inconsistent with

SPRING TERM 1842. 267

the conclusion to which we have come in this opinion, Bi.*ck, «tc
and the verdict for the defendan^ should not have been Lacsst.
sustained,

We-need only say farther, with regard to the defen-
dant's assent to the sale, that if he requested or directed
the sheriff to levy on this land and sell it in satisfaction
ef the executions, and being present at the sale, did not
unequivocally dissent or disclose the nature of his title, '

he is to be regarded as having assented to the sale, and
as being estopped from denying the title of the purchaser
holding the sheriff's deed.

For the error in the instructions, and in overruling the
motion for a new trial, the judgment is reversed and the
cause remanded for a new trial, in conformity with this
opinion.

Owsley c^ GooHot for plaintiff; Turner for defendant.

Black, &c, m Lackey, Pw. & Swi,

Error to the Estill Circuit. Case 80.

Petition and svmmons, Abalemenl.

3o9eB Masshall delmred the Opinion of the Oonrt April 14.

It seems to this Court that the fact that the notes on it is a sufficient
which the petition is brought were on file in the same ST^itetnte'^iJ
Court, in a suit in chancery, pending between the same ^^^ ^^ ^
parties, when the petition was filed, and that they so re- brought by peti-
nained up to the time of pleading, was a virtual oompli- monauTbefii^J
aace with the requisition of the statute in regard to the J^*fii^iJ^oAef
lling of the note, substantially answering all the objects ^^ "» the some
of that requisition, as set forth in the opinion of this
Court in the case of {Searhart vs Olmsiead, ,^c. (7 Dana,
442.) and that under such circumstances there was no
ground for abating the suit or quashing the summons, on
account of the fact that the notes were not literally filed in
the same paper with the petition.

We are also of opinion that the pemlency of the ohan- The pendettcr of
eery suit, for attaching and enforcing a lien for the same JerTior^attoSl
debt, was not a ground for abating this suit at law. The !"« "j4 «"/<»'«-

two suits were brought foe different purposes, and were cawwlorftbatias
Vol II. 33

258 BEN. MONROE'S REPORTS.

XocKiiDftB j^Qi commensurate in their objects. The chanceiy sait
LocKBxosB. could afford no relief beyond the effects sought to be at-

EBuitat law on tached, dnd the creditor should not, thereby, be deprived
Hame^debL^ * of the right of obtaining a personal judgment for the debt,

which might be essential to its security and ultimate satis-
faction. The Chancellor could and would prevent any
oppressive use of either remedy. Whether the creditor
might not have been compelled, in one Court or the
other, to make his election upon a rule or motion to that
end, need not be decided.

Thefe being no Qrror in overruling the defendants de-
murrers to the replications presenting the foregoing facts
in answer to the pleas in abatement, nor in overruling
the motion to quash the summons, the judgment is af-
firmed.
Owsley ^ Goodloe for appellants ; Turner for appellee.

Chaiccbby. Lockridge vs Lockridge.

Case 81. Error to the Montgomery Circqit.

Alimony. Equity and equitable jurisdiction.

AfrU la. Cbibp Justice Robebtson delivered the Opinion of the Court.

An annuity of $140 having been decreed to Mrs, Lock-
ridge for alimony, in consequence of a decision by this
Court between these parties, reported in 3 Dana, 28, the
husband lately enjoined a process of attachment for en-
forcing one year's allowance, on the ground that be bad
become so reduced in his resources as to disable him to
make so large a contribution, and, therefore, prayed for a
reduction. The wife resisted the prayer, but the Circuit
Judge, upon the supplemental pleadings and process,
modified the former decree and reduced the annuity, pros-
pectively, and also, so far as it remained unpaid, to $33
33 cents. That decretal order is now to be revised.
Thd ChanceUor The power to either enlarge or diminish alimony, w
chan^c^a decree circumstances shall render reasonable, cannot be doubt-
wduce"irM the ®^- ^"^ ^' ^5 probable, in this case, that the husband,
eircuinsiancesof who is about'80 years old, unable to labor, and seems io
kjiwUcBre^cf own only two slaves, old and rather infirm, a trad of

• SPRING TERM 1842. 269

about 750 acres of mountain land, and personal property Lookkiom
apparently not exceeding $100 in value— cannot live on Locnmoi.
the profits of his estate and save as much as $140 a year. ""
He has recently lost, by death, a slave whose hire was
estimated at from $100 to $120; and, in other respects,
secmsio have less productive property than he had wheii
the first decree was rendered; and, therefore, there being
DO proof of fraud or culpable improvidence in the reduc-
tion of his means, so far as it is shown to have occurred,
we are of the opinion that, upon the facts as now appear-
ing, the annuity ought to be reduced.

But it does seem to us that the reduction, as made by
the Circuit Judge, is too great: Ist. The defendant in
erroi evinces no disposition to take his wife again and
treat her properly. 2d. In his first bill, he prayed for a
reduction only to $80, and afterwards, without suggest-
ing any reason for the change, he sought the modification
as made. This rather implies a consciousness of ability
to contribute as much as $80 a year; and moreover, he
has not shown what disposition he has made of some
money which he had when he was charged with the an-
nuity of $140. 3d. Besides, he cannot be expected to
need his estate much longer for his own maintenance, and
his wife cannot live comfortably on so small an allow-
ance as $33 33; and, therefore, if necessary for their mu-
tual support, a small portion of his capital might, with pro-
priety, be brought into requisition and appropriated to
that object. They should both be comfortably maintain*
ed, if his estate can be made to secure that object, as
long as they may live. 4th. Moreover, one of his wit-
nesses was of the opinion that his visible estate would
yield perhaps $100, after supporting him, annually;
whilst another expressed the opinion that the whole an-
nual use or product would not exceed $100 in value.

Upon these facts and considerations, we are of the
opinion that the annuity should, for the present at least,
be not less than $70.

And, therefore, the decretal order fixing it at $33 33, is
leversed, and the cause remanded for a decree according
to this opinion, for $70, until good cause for again

108 712

260 BEN. MONROE'S REPORTS.

^^ changing the annuity shall be made satisbctorily to
BiATT¥ ABioos, appear.

Apperson for plaintiff; Peters for defendant.

Tbbbpass. Ward vs Beatty and Biggs.

Case 82. Erbob to thb Gbbbitup Cibcuit.

Trespass. Double damages. Distress far rent.

April 19. Cbiif Justick Bobertmn dellTered the Opinion of the Court

Doable damages h( this case double damages were adjudged to a stian-
v^d ^in^ 8^' ^^^^ trespass in taking his goods under a distress war-
distSS2« SS "^"^^ against a tenant who owed his landlord rent, for which
goods of aatran- there may have been a right to distrain the tenant's goods.
K)i *of' Ae ten- The Only authority for double damages for a wrongfiil
£! i^fStf "SS *»*^«ss, is given by the third section of an act of Vir-
lent due. ' giniaof 1748, still in force here.

But that section applies only to a distress where no rent
toas diUf and can have no more application to a tortious
caption of a stranger's property, under a distress against
another for rent due by the latter, than it would have to
any other trespass by one person on the property of anoth-
er. It is not the fact that the property distrained was not
subject to the distress, but only the fact that no property
was subject, because no rent was due, which can give a
title to double damages.

It is not necessary, of oouri^e, to say whether, if no
rent had been due, the third section of the act of 1748
should now be deemed applicable to or available by a
stranger whose property is not, as it might have been in
1748, subject to distress for rent due by another person,
or should only apply to the owner of property subject to
distress, but distraining of which was wrongful, becaasc
no rent was due.

Judgment reversed, and cause remanded.
Apperson, Roliinson ^ Johnson for plaintiff; Swfly
for defendants.

SPRING TERM 1842. 261

Montjoy and wife v$ Lashbrook et al. Chancery.

EORBOS TO THE MaSOIT ClRCUlT. CoSC 83.

Trustee and cestui que trust. Usury. Interest.

Cbrf Justicb BoBSBTsoir deUfered the Opinion of the Court. April 20.

MoNTJOT AND WIFE bfought this suit in chancery against f^^ ^ase suted.
her brothers » John and William Lashbrook, either for
twelve and a half percent, interest, on a pecuniary legacy
bequeathed by her father to them, in trust for her benefit,
or for the entire fund, on being indemnified against future
liability, alledging that the trustees loaned their own mo-
ney at that rate of interest; that it was the common con-
ventional rate in their neighborhood, and that persons of
unqnestionable ability had offered to give it for a loan of
the trust money.

The answers admitted those allegations exceptiiig only
that WQliam Lashbrook denied that he loaned any money
for usurious interest, and said that he used the trust fund
in his business as a merchant.

The Circuit Court decreed only the legal interest, with- a trustee 10 not
oat rests. ZT^^u^^

The trastees, being charged with the custody and con- hi^JJ?ght**'hafe
trol of the money, for the use of the beneficiaries, should loaned the fund
certainly make it as productive as vigilant men might teresu'** ' "^*
conveniently make their own money, consistently with
honor and law ; and whatever they have in fact made is
equitably hers. But we have no giound for presuming
that the actual profit has been more than six per cent, an-
nually. And surely a court of equity will not make them
responsible because they would not violate the law by
loaning at usurious interest.

Nor should such a tribunal lend its aid to disturb the The chancellor
trust, for the avowed purpose of enabling the beneficiary Sj^''bwMh'''2f
and her husband to use the money in violation of the pos- ^Suti^wiSt
itive law of ihe land. Moreover, no court has the power ^nw from the
to do so, unless there had been a breach of trust; and tee a fund, the
wc cannot admit that a refusal to loan the trust fund at jT^^en^to ^j^^
usurious interest, can be deemed a breach of trust. o*^«^ n»weiy t^

262

BEN. MONROE'S REPORTS.

WHiTtive et aL

va
Walxbk et al.

enable the r^eatui
^ue trust to loan
It at more than
legal interest—
and a lefasal to
loan trust funds
at illegal inter-
est is no breach
of trusL

A trustee using
a trust fund
should pay 6 per
cent, interest an-
nually, and if not
annually paid,
the interest to be
annually made
principal.

Bat, as one of the trustees iiimself used the money,
he ought to have paid to Mrs. Montjoy six per cent,
thereon, at the end of each year, which, not having been
paid, should be converted into principal as it annually
became due.

In this case there should, therefore, be annual rests as
long as the money has been or shall be used by the trus-
tees or either of them. And consequently, as the Circuit
Court did not compound the interest, the decree, in that
respect, is considered exceptionable, and must, for that
cause alone, be reversed, and the cause remanded foi a
correction corresponding herewith.

Hord for plaintiifs ; Payne (^ Waller for defendants.

2biD263
110 200

Par. & Sum.
Case 84.

April 20.

A protest of a
domestic bill of
exchange is su-
perfluous and
unauthoritatiTe,
and is no proof
of the dishonor
of the bill, and
this Court will
not judicially
presume that the
law of Louisi-
ana is different.

Whiting et al. vs Walker et al

Appeal from the Hickman CiRcmT.
Petition and summons. Error. JVon-suU.

Cbxxf Justice Bobbrtson delivered the Opinion of the Court

In a petition and summons brought under our statute
of 1837, (Session Acts '41,) by the payees against the
drawers of a domestic bill of exchange, drawn and ac-
cepted in New Orleans, the jury impanneled to try sev-
eral issues, was instructed to find as in case of a non-
suit, because the only evidence of non-payment and no-
tice thereof was a notarial protest; and thereupon the
plaintiffs discharged the jury and voluntarily suffered a
judgment of non j^ros. That judgment they now seek
to reverse.

As, according to the mercantile law, a protest of a
domestic bill is superfluous and unauthoritative, and
therefore no proof of the alleged dishonor of the bill.
(Taylor vs The Bank of Illinois, 7 Mon. 676,) and as
moreover we cannot judicially presume that this is not al-
so the local law of Louisiana; consequently we could not
doubt that the law was against the plaintiff, as decided by
the Circuit Judge. And we are of the opinion that the
statute of 1837» supra, only makes a protest admissible

SPRING TERM 1842. 263

as evidence when, by the Ux loci, it was essential to the Hosrivs
liability of the party sued. Bobests.

But had the instruction been erroneous, the plaintiffs ifapUintiffyoi-

waived the right to a revision of it in this Court by sub- ^ Joiuuit"^ be

mittingto a nonsuit. Their only remedy now is another ^[^^2? Myomn-

sait in a Court of original jurisdiction. »on o/ the Court

rwii • 1 1 I. 1 ^ 1 which may have

The judgment must therefore be ainrmed. induced it and

Owsley cf Goodloe for appellants ; Husbands for ap- Sereof ^M^elwr

pellees. '^^ ^^ ^^'^

Hoskins vs Roberts. Appeal.

Error to the Hancock Circuit. Case 85.

Appeal. Jurisdiction. '

JoDOS Mabshall delivered the Opinion of Uie Court April 20.

This was an appeal to the Circut Court from the judg- juaiiceaof Uie
ment of a justice, by Hoskins, the defendant in the war- ? j*^^jgJ|J^* "f
rant. On the calling of the cause in the Circuit Court, suits founded on
the defendant's counsel moved the Court to dismiss the credits thereon^
suit on the ground that it appeared from the note and the a^Jdue^S ow
credit endorsed, as brought up with the warrant, &c. by ^f^L*^*^*^*^'
the appeal, that the justice had no jurisdiction of the en.
cause. The note was for $60, payable on the 16th of
September, 1839, with an assignment to the plaintiff in
the warrant, dated April 27th, 1840, and a credit of $10
or the date of October 30th, 1840. The plaintiff stated.
in opposing the motion to dismiss, that the credit on the
note was not entered the day it was given, and he could
prove that it was entered before the warrant issued, which
was on the 29th of October, 1840. The Court overruled
the motion to dismiss, and on the trial, the plaintiff read
in evidence the note with its endorsements as above sta-
ted, and proved that the credit was entered on the note
by him before the warrant issued — on which evidence
the defendant moved the Court to instruct the jury, that
if they believed from the evidence that the credit was en-
tered after the note fell due and interest had accrued on the
note, in that case the law applied the payment first to the
discharge of the interest, and the justice had no jurisdiction

264 BEN. MONROE'S REPORTS.

HosRiHs oflhecause, and they should fiad for the defendant. This'
RoBBRTa. motion having been also overruled, a verdict was found for
the plaintifT, and the defendant prosecutes this writ of
error to reverse the judgment rendered thereon. As the
statute of 1799, requiring partial payments of a debt
bearing interest to be first applied in discharge of the in-
terest then due, it follows that the payment of $10 upon
this note for $60, could not have reduced the principal
debt to $50, unless made before or at the time when the
note became due, and that consequently the application of
that payment, either at the date of the credit or at any time
after the note fell due, would not have reduced the debt
to a sum within the jurisdiction of a Justice of the Peace.
If the question of jurisdiction should be determined by
^ applying the credit at the date given to it on the note,
without admitting parol evidence to show either that the
credit was actually entered or the payment actually made
at a prior time, then it conclusively appears in this case»
from the note and the credit as endorsed, that the jus-
tice had no jurisdiction to render judgment on this
cause of action, and the Circuit Court had no right,
against the consent of the defendant, to give judgment
for the plaintiff, on the same cause of action coming be-
fore it by appeal from the justice; and as upon the mo-
tion to dismiss the case for want of jurisdiction, the note
with its endorsements was before the Court, and the plain*
tiff in effect admitted, that he meant to rely upon the sane
note to establish his cause of action on tiie trial, the
Court, upon the hypothesis assumed, might and shootd
have dismissed or abated the suit for want of jurisdiction
in the justice: BasseU vs Oldham, 7 Dana, 168; M Kit-
rick vs Peter, 5 Dana, 687.

In appeals from ^^^ ^^ ^^ ^® conceded, which is done without deciding
Justices of the the point, that parol evidence, with regard to the time

Peace where it ' a

appears to the of the payment or of entering the credit, contrary to the
SrSp^^V^^ tenor of the written credit, should be admitted to affect
^t ^«J^'JJ^^« tfie question of jurisdiction, still as upon the motion to
tion, it IS proper difimiss the plaintiff, did not intimate that he could prove
moUoii-^"if,aR *^t ^^ payment was made, or the credit entered before

l^om, liZ ai^. ^' ^^ ^^^ *^"^® ^^^^ ^^® "^^ became due, the conclusion
peai oa Uie pa- as to the right and duty of the Court in disposing of the

SPRING TERM 1842.

motion is the same as if 'the motion stood exclusively
upon the note and the credit as endorsed. We are of
opinion, therefore, that the Court erred in overruling the
motion to dismiss the suit.

We are also of opinion, that upon the evidence addu-
ced on the trial, the Court should have given the instruc-
tion asked for by the defendant as above stated, and that
it might on his motion have instructed the jury peremp-
torily to find for the defendant, on the ground that the
plaintiff *s evidence did not conduce to establish a cause
of action on which the Court could render judgment
when brought before it in this form.

Wherefore, the judgment is reversed and the cause
remanded with directions to dismiss the suit for want of
jurisdiction in the justice to render judgment on the
cause of action made out under the warrant.

Waller for defendant.

265

Paul 6l Poovb

Williams.

instruct the jury
to find for defen-
dant on tho
ground of want
ofjuiisdictioaia
the justica.

Chancery.

Case 86,

Paul & Pogue vs Williams.

Appeal from the Greenup Circuit.
New IriaL Chancery.

CaiBP Jdsticb Bobkbtson delivered the Opinion of the Court. April 22.

This is a consent appeal from a 7iisi decree for a new -^^^ ^^^g stated,
trial of an action of covenant for the price of coal deliv-
ered by the appellant to the appellees at their Iron Works
in Greenup county.

The only causes alledged for seeking such relief are,
1st, that although one of the appellees was at the trial
and defended the action, the verdict having been render-
ed at night and the Court having adjourned the next day
before an agent who chiefly managed the defence reached
the court house, no motion for a new trial was made be.
cause the absentee was the manager also of the iron
works, and it was neither customary nor deemed proper
for the pan owner, who was a defendant and in Court,, to
interfere in any business relating to that agency — 2d, that

the appellees had discovered since the adjournment of
Vol. IL 34

?66 BEN. MONROE'S REPORTS.

Paul & pogue the Court that they could prove by some of the witness-
WILLIAM3. es who testified on the trial, that the appellant had said,
both before and since the verdict, that he did not claim
as much as the jury had assessed, to-wit, $779, and that
he had only claimed about $500 — and 3d, that the ver-
dict was exorbitant and unauthorized by the testimony
which entitled the appellant to not more than $500.

The answer denied the sufficiency of the excuse made
for not moving the common law Judge for a new trial,
and also denied the allegations as to the injustice of
the verdict and the appellant's declarations,
vi^ere one of The bill on its face is palpably insufficient to author-
en? af Uie* ui&\ ^^® ^°y relief. Surely the excuse for not moving for
makes nomotion a new trial during the term at which the verdict was ren-
because the a- dered, cannot deserve the grave consideration of the
Sere-rnd the pfovident Chancellor. To encourage such excuses would
testSno'^ °^?^^ unhinge the administration of justice, license negligence
setting it 'forth) and delay, and render litigation oppressively uncertain
diet was^^too and protracted. Similar excuses have been always ana-
^o^b^^Tchrrli vailing even in courts of law.

cciior will not But had the excuse been sufficient, still there was not
for a new trial, even a semblance of equitable ground for the relief

sought; the discovered fact was involved in the issues
tried by the jury, and depended on the testimony of wit-
nesses. Neither a court of equity nor a court of law
ever controls a verdict on any such ground, because, to
do so would encourage fraud and subornation by the
losing party, whose example, if he once succeed, might
provoke retaliation on the other side, and thus prostitute
litigation and render it interminable. Moreover, the on-
ly fact proved in this case which could have any influ.
ence on the assessment of damages, is one which, not
only is slight and of doubtful effect, but was known and
could have been proved on the trial of the action by a
witness who testified for the appellants on that trial.
Nor does it appear from this record that there was any
injustice in the verdict as rendered, or that it was not
fully justified by the evidence heard by the jury.

The decree is, therefore, reversed, and the cause reman-
ded with instructions to dismiss the bill.
Beatty for appellants ; Apperson for appellee.

SPRING TERM 1842. 267

McCart vs Lewis, Debt. |f{g°^

Appeal from the Fleming Circuit. Case 87.

Deed, Sealed instruments. Partners and Partnership,

Crikf Justice Robertson delivered the Opinion of the Court. April 22.

According to the arbitrary doctrine recognized and set- one partner has
lied by our predecessors, and applied even since our SwTi\^f from the
statute of 1812. as to sealed writings, the partner, who "^ere fact of

. ,. .', , ttiii^ ti partnership, to

in this case signed and sealed the bond for money, had bind his co-pajt-
no implied authority from the mere partnership to bind stniment— ^ ^'
the other partner by such a sealed writing.

We are satisfied, however, that an express authority ^ority ^by^paroi
by parol, or an authority implied from a subsequent re- will be sufficient

J r f J I * to authorize one

cognition of the obligation as executed, would be sufii- partner to bind
cient for making the bond the deed of the plaintiff in a^ scale" instiu^
error who did not, in person, sign and seal it: Gram vs ^®thorit?ma^be
&aion and Buckner, and the numerous cases therein inferred by sub-
cited, 1 HalVs N, York Rep, 262. tX^of t'he^o^i-

But, in this case there was no direct or clear proof of fl^^^ ^ cxecu-
any such express authority or recognition, and the in-
structions given by the Court assumed that the partner-
ship itself implied a sufficient authority in one partner
to bind the other by seal.

The judgment must, therefore, be deemed technically
erroneous, for though the surety in the bond may be en-
titled to restitution from the plaintiff in error, if he was
previously liable for the debt for which the bond was ex-
ecuted; yet that fact cannot make the bond legally en.
forcible against him unless he authorized the seal, or
subsequently recognized directly or impliedly.

Judgment reversed and cause remanded for a new tri-
al of the issue of non est factum, on the plea of the
plaintiff in error.

Payne and Waller for appellant; Cavan for appellee.

268 BEN. MONROE'S REPORT^.

Ejbctmwtt. Taylor's Heifs, &c. vs Whiting's Heirs,

CtfS«88. Appeal from the Shelby Circuit.

Conveyances. Witnesses. New trial.

April 32. Judge Marshall deliveied the Opinion of the Court

Th e«s« staled. '^^^^ ^^ ^^ appeal by the heirs of William Taylor and

others, claiming under them, from a judgment in eject-
ment on the demise of the heirs of Thomas Whiting, for
the recovery of land held by the aj^ellant, within the
patent for 500 acres, granted to John Thurston in the year
1785, to which the lessors made title, and which is the
oldest patent on the land.

' Comparing the verdict with the instructions of the
Court, the jury must be regarded as having found, as they
were authorized by the evidence to find, that the patent
and deed conveying the title to Thomas Whiting, cover-
ed the land in contest, which was in p6ssession of the
defeiKlants; that the lessors were the heirs of Thomas
Whiting; that some of them were under disabilities at
the time when adverse possession was first taken or held
under William Taylor, and so continued until within
seven years before the commencement of this suit, and
that such adverse possession did not commence so long
as twenty years before the service of the declaration in
this case; and the Court having committed no enor in
instructing the jury as to the ineffi^acy of a possession
short of twenty years, to bar the entry of the lessors in
case of such continued disability of some of them, nor
in giving or refusing instructions upon other points affect-
ing the question of the commencement, extent and effect
of the adverse possession of Taylor, which we deem it
unnecessary to state, we shall proceed to notice briefly
the only objections to the verdict and judgment which
have been seriously insisted on in this Court.
Men tie con- 1- The defendants, for the purpose of proving that one
fossions of a par- Qf i]^q lessors of the plaintiff was in Kentucky more than
eyidence against twenty years before the commencement of this suit, ask-
s^, 'alHhatTie cd one of the plaintiffs witnesses, who had been cKam-

SPRING TERM 1842. 269

ined by the plaintiff, whether the lessor, Baggot, had not Taylor's heirs,

been in Kentucky many years ago, to which the witness vs'

answered, that he had no personal knowlefdge of the fact, h rs>

but that Baggot had told him he was in this State in the of^ the confes-

year 1817; and on being asked by the plaintiffs counsel the^^ilT^sub"

to state what further Baffgot said at the same time, he was i«ct, is compe-

^" . tent, whether de-

permitted, against the objection of the defendants coun- tailed on the ez-

sel, to answer and state, that Baggot further told him that SSeTor°"coming
Col. Toliver was with him at Taylor's house in 1817, 2^\2Jti^'^°/« *^'-
and that if Toliver were here he could prove that Taylor
told him he was agent for Whiting's heirs, and had the
management of their land. To the allowance of this
qoestion and answer, the defendants counsel excepted,
and now contends that it was erroneous: 1st, On the
ground that the witness was not asked by the defendants
to state the admissions of Boggot, but did so voluntarily.
But the answer of the witness was a response to their
question, tending to prove the fact they wished to estab-
lish by the question; they did not stop him nor disclaim
the use of his statement, which they doubtless would have
used, so far as it was available, if it had not been coun-
teracted by the answer to the question objected to. 2d,
It is also urged that the detail given by the witness, ex-
tended farther than the rule upon the subject allows. But
the rule, as laid down by Starkie, is, that when the admis-
sion of a party is thus brought out from his witness, by
the opposite party, he may, by re-examination of the same
witness, prove all that he said in the same conversation,
which has a bearing upon the subject matter of the suit:
3 StarkU on Ev. 1751. And even if the rule, thus stated,
should be deemed too extensive, it certainly could not,
without an obvious violation of justice and of the very
principle on which the rule is founded, be restricted so
far as to say that a party, whose statement is proved as
an admission to establish a particular fact, should not be
permitted to prove so much of his further statements, in
the same conversation, as would obviate the effect of that
fact. The additional statement of Baggot, as proved in
this case, not only related to the subject matter of the
suit, but tended also to explain and qualify the fact ad-
mitted in its application to the suit. It, therefore, ex-

270 BEN. MONROE'S REPORTS.

Tatlo^ vButa plains and qualifies the admission itself, and could not
w ^ be excluded by the most limited form of tWe rule, withont
HiTiNft destroying the effect of the privilege which the rule in-

tends to secure,
f ^- Gieorge Miles, a witness offered by the plaintiff,
fered bjr plaintiff having, on the 'interrogation of the defendants, stated that
irlh^r^v^^t he had a contract with Whiting's heirs for 60 acres of
contest of "plain" ^h^ land, if they succeeded, for which he had given his
tiff, (in case of notes at the rate of $20 per acre, was rejected as incora-
testimony being potent, on the ground of interest; but having afterwards
ob^cted^toj^^he executed a release to Whiting's heirs, which was accepted
from his notes jjy qqq gf them then in Court, as agent for the others,

given for the -^ » o »

land; held that releasing them from all liability on account of said con-
vas therebV re- tract, he was in this state of things, admitted as a compe-
wiSiMa "compel ^^^^ witness, though his notes for the price of the land
t«ut had not been surrendered to him. The defendants having

excepted to the opinion of the Court, now contend that
the release did not terminate the interest of the witness,
and that he was improperly received. But concediDg
that the contiact, as it existed before the release, created
an interest in the witness in favor of the plaintiffs soc^
cess, which rendered him incompetent, still, if the re-
lease was effectual to extinguish all liability of Whi-
ting's heirs under the contract, it was equally effectual \o
extinguish all right which the contract gave to the wit-
ness against them. And if, after the release, he would
have had no right in the event of the plaintiffs success,
to claim the land on payment of the $20 per acre, he
could have had no interest on the side of the plaintiff,
under this contract. But if, having no right to claim the
land in the event of the plaintiffs success, he would, hy
that event, have become liable upon his notes, his inter-
est was clearly on the side of the defendants.

We think there can be no doubt as to the effect of the
release in extinguishing the liability of the Whitings, and
the right of the witness. After executing such a release
for the purpose, and with the effect of rendering himself
thereby a competent witness, he would certainly be es-
topped by it. • And whether the acceptance of the release
for the same purpose, and with the same effect, should
be regarded as operating, of itself, a rescission of the

SPRING TERM 1842. 271

contract, or as leaving to the accepting party the right of TATtoR*s ueibm,
enforcing payment of the price, without being under any ««*

corresponding obligation to convey the land, the legal ^"'"^'^^ ' " "^'
interest of the witness in favor of the plaintiffs success
was terminated. If any presumption is to be indulged
beyond the mere fact of the execution and delivery of
the release in Court, without an actual surrender of the
notes, as stated in the bill of exceptions, it may as well
be presumed that the agent for the heirs promised that he
would surrender the notes or would not enforce them, as
that he promised that the contract should still be execu-
ted on the part of the heirs, if they succeeded in the suit.
And if it should be presumed that though there was no
promise to that effect, the witness may have expected a
falfilment of the contract, notwithstanding his release,
such unauthorized expectation would not constitute a
legal interest which would go to the competency of the
witness, but only a bias which would go to his credit.
We are of opinion, therefore, that the Court did not err
in admitting the witness as competent.

3. The defendants having read in evidence a deed,
dated May, 1821, from John H. Morton, as collector of
the direct tax of the United States, to William Taylor,
porporting to convey the title of Whiting's heirs to the
land now in contest, in virtue of a sale thereof, for the
direct tax imposed by the act of Congress of 1813, and
having also read the deposition of Harrison Daniel, one
of the deputies of said Morton, for the purpose of prov-
ing such facts as, under the laws of the United States, ,
would have authorized the sale and conveyance; the
Court, on motion of the plaintiffs counsel, instructed the
jury that the said deed did not pass the title — thus virtually
exclading from the jury the consideration of the evidence
read in support of the deed, as well as the deed itself;
uid the propriety of this instruction is strenuously con-
tested.

It is the established doctrine in regard to such deeds. Deeds made by
that they are not even prima facie evidence of the pre- ESS**toid to wL
liminary facts which, under the acts of Congress regulat- *^»fy ^^ direct
iQg the mode of proceeding in assessing and collecting isis, &c. are
the tax, are requisite to authorize the sale and convey- S^LwcSiauhe

272 BEN. MONROE'S REPORTS.

Tavlo^s hxibs, ance of the land, but that such preliminary facts, on

«« ^ which the authority depends, must be proved aliunde:

^nmNos^BBs- Pdfiigj. yg Hide's lessee, (9 Cranch, 69, 3 Condensed

thTuw''o'f%d5 Reports. 271 ;) Williams, ^c. vs Paylon's lessee, (4

ffii co"!^: (^0^- R^- 395-)

plied with, and By the act of CoDgress **for the assessment and collec-

on%ucV deed "is tion of direct taxes and internal duties," approved July

thauuch'pJe.Te- 22, 1813. the several assessors of the tax are required to

qiiisites had been make 00 1 tvvo general lists, one containing the names of

periornied as au- o » o

thorized a sale, all persons liable to pay the tax, who reside within the

assessment district, together with the value and assess-
The requisitions ment of the objects liable to taxation, and the other ex-

01 the laws of ,

the u. s. hibiting the names of all persons residing out of the col-

lection district owning property therein, together with the
value and assessment of the property or amount of direct
tax due thereon, which lists are to be delivered to the
principal assessors. Kentucky was divided by the act,
into ten collection districts ; the land in contest lay in
the eighth (or Jefferson) district, of which the owners,
Whiting's heirs, were not residents. The 17th section
of the act requires, that the collector of each district shall,
within a prescribed period, be furnished by the principal
assessors with one or more of the lists prepared as be-
fore directed ; and the 21st section prescribes, that wilbin
ten days after receiving the collection list, each collector
shall ''advertise in one newspaper printed in his coUcc.
tion district, if any there be, and by notifications, to be
posted up in- at least four public places in his collodion
district, that the said tax has become due and payable,
and state the times and places at which he will attend \fi
receive the same, which shall be within twenty days after
such notification;" and with respect to persons who shall
not attend, according to such notifications, it is made the
duty of the collector to apply once at their respective
dwellings, within such district, within sixty days after
the receipt of the collection list, and demand the taxes
payable by them; and if the taxes are not paid within
twenty days thereafter, he is authorized to distrain the
goods, &c. of the persons delinquent, &c.

The 22d section prescribes the mode of proceeding
when goods, &;c« sufficient to satisfy the tax upon honses

SPRING TERM 1842. 273

or lands of persons known and residing in the district Tatua*! utiu,
cannot be foand» and authorizes a sale of the land. m'

The 23d section enacts, "that with respect to property ^^^™^'* ''"•
lying within any collection district, not owned, occapied
or soperin tended by some person residing therein, and
on which the tax shall not have been paid for ninety days
after the day on which he shall have received the colIec«>
tion lists from the principal assessor, the collector shall
transmit lists of the same to one of the collectors within
the same State, to be designated for that purpose by the
Secretary of the Treasury.'* And the collector, thus de-
signated, is required to cause notifications of the taxes
doe as aforesaid, and contained in the lists thus trans^
mitted, to be published for sixty days, in at least one of
the newspapers in the Staj^e, and the owners of the prop-
erty on which the tax is due, aie permitted to pay it within
one year after the day on which the collector of the dis.
trict where the property lies had notified that the tax had
become due on the same.

The 24th section enacts, that where the tax shall have
remained unpaid for one year as aforesaid, the collector
designated as above, having first advertised the same for
sixty days, in at least one newspaper in the State,
shall proceed to sell at public sale, &c. By the 25th
section, the designated collector is required to deposite
with the -cl^rk of the District Court of the United States,
in the same State, correct lists of the tracts of land or
ether real property sold by him, together with the names
of the owners or presumed owners, who are allowed two
years from the time of sale to redeem the land, on failure
of which a conveyance is authorized to be made by the
said clerk; but a subsequent act authori^s the collector
who made the sale, to make the deed. John H. Morton,
who made the sale and deed in this case, was the collec-
tor ia the State of Kentucky, designated to receive from
the other district collectors the lists of taxable lands within
their respective districts, of which the owners did not
reside within the same district, and on which the tax re-
mained unpaid for ninety days after the list had been fur-
•ished to the district collector by the principal assessor.

He was not the collector of the district in which the land
Vol. II. 35

274 BEN. MONROE'S REPORTS.

TATLo^a nnna, uov7 in question was sitaated, and should have received
vs' the list from the collector of that district. It is obvious,

WHiTiae s H'Bg. ^jjgjgfQpg^ tjj^^ there were, in this case, at least two offi-
cers, the collector of the Jefferson district, in which the
land was situated, and the designated collector to whom
the list of non-residents' lands was transmitted, to each
of whom distinct duties were assigned in the process of
collecting or coercing the tax, and the performance of
whose respective duties, so far as they are essential to
the authority to sell and convey, cannot be established
cither by the recitals of the deed, or by the general pre-
« sumption in favor of a public ofScer, that he has done
his duty, but must be directly or indirectly proved by
other means.

Without intending to enumerate all the acts or duties
of the collector, which should be deemed essentia] pre-
requisites to the ultimate sale and conveyance of the land,
it is, as we think, manifest that the several advertise,
ments and notifications prescribed by the act of Congress,
must be regarded as essential to support this deed, so far
as they are applicable to the case of non-resident owners
of land within the respective collection districts, fioth of
the advertisements required to be made by the designated
collector, are directly applicable to the case, being in
truth required only in regard to the land or names of non-
residents of the several districts. And as there is no ex-
ception in the requisition, that the district collector shall
advertise as to the lands of which the lists shall be re-.
turned to him, that the tax is due, &c. this requisition
must be regaided as embracing the case of nonresidents
of the district, having lands within it, as well as that of
residents, and as being intended, as well for the benefit
of the former as for that of the latter. The law intends,
«LS far as possible, to give to non-residents the same op'
portunity of paying the district collector, as it gives to
residents. It requires and authorizes the district coUeo*
tor to transmit the non-residents' list to the designated
collector, only in the event of the tax not having been,
in the mean time, paid to him ; and if any doubt could
otherwise be entertained, that the advertisement was to
embrace the tax or list of the non-resident, it is entirely

SPRING TERM 1842. 275

removed by the proviso in the 23d section, limiting the Taylor's uibs,
time within which the non-resident may pay his tax to the vs*

designated collector to one year from the day on which ^'"""°'' "''**
the collector of the district where the property lies, had no,
Afied thai the tax had become due on the same.

Now there is, in this case, not the slightest evidence,
and not even a recital in the deed, going to show either
that the district collector had advertised, either in a news-
paper or by notifications posted up as directed, that the
tax was due on this or any other property, or that this
land was ever entered on any list returned to him, &c. &c.
The cases already referred to fully establish the conse-
quence of such a defect of proof to be, that the sal6 and
deed pass no title. And such we deem to have been the
tme conclusion in the present case ; for conceding that an
undisputed possession, held for a greater length of time,
under a deed of this character, might give to it such
strength as would dispense with all other proof of its va-
lidity, or of the authority to make it, we do not admit
that a possession of less than eighteen years, which was
the interval between the date of this deed and the com- '

mencement of this suit, could have such effect. And
witli whatever exactness John H. Morton, the designated
collector, may have performed his duties, after the tax
list of Whiting's heirs came to his hands, and with what-
ever precision this may have been proved, this cannot, in
any degree, supply either the failure of duty in the dis-
trict collector, or the failure to prove his performance of
his duty, if he did perform it. If he did not give the
publicity requiied by law, to the fact that this tax was
diie and might be paid to him at a particular time and
place, there was no suoh non-payment of the tax as au-
thorized any of the subsequent proceedings directed by
the act. If he gave no notification that the tax was due
on this land, then one year from the date of such notifica-
tion, which was allowed for the payment of the tax, had
not elapsed when the land was sold.

Under this view of the case, we deem it necessary
only to remark farther, on this point, that H. Daniel,
whose deposition was read in support of the deed, was
the deputy of J. H. Morton, the designated collector, not

27« BEN. MONROE'S REPORTS.

TATto^i HSU*, profeasiDg to know or to speak of any thing that was dona

t>8 by the collector of the Jefferson district, but only as to

Wmtiwo*8 h mm. ^ ^^^ ^ J j^jg ^^^ principal and his deputies ; and of

these he speaks only in general terms, as that they acted
under advice of counsel in regard to their duties, and en-
deavored to fulfil, and as he believes, did fulfil all the re-
quisitions of the acts of Congress — that he knows J. H.
Morton had the non-residents* lists advertised in three
newspapers in Kentucky, (none of which, however,
were in the Jefferson district,) but he does not know bow
long the publication was continued; nor does he say that
there were two publications, as required by the 23d sec-
tion of the act, or that there was any reference to this par-
ticular land or the tax upon it, in any publication ; nor
does he make any reference to this particular land, or to
the non-payment of the tax upon it, or its sale by the col-
lector; and no newspaper containing any advertisement
was produced. Certainly this evidence falls far sbeit of
that which is referred to by the Supreme Court of the
United States in the case of Williams vs Peyton, supra,
as being essential to the support of a sale and deed for
taxes. And if the validity of this deed bad depended
solely on the acts of Morton, we are not prepared to say
that the evidence was sufiicient to prove, or to authorize
a jury to find the facts essential to its validity.

'^iS* ?fe**dftSB ^* ^^ ^* further urged, as a ground for reversing thii
wasBurpristd, ^ j.udgment, that the Court erred in not granting a new trial
whom tfaT^any ^ the defendants, upon the afiidavit of one of them, al-

&lt wSJTd'Sot ^®^P^? ^^*' ^® ^^ surprised by the evidence of George
attend, would Miles, a witness for the plaintiffs, so far as he stated that
STvin^an impor- when William Taylor put him in possession of a part of
iKt^^'^'by the land in contest, he claimed to be acUng as agent of
i^^fi^Uon^on ^^^^^^8*^ ^^^^^ > ^^^^ ^0 had made no such statement in
<iietriiu,andd6- his deposition in the chancery suit between Whiting's
c?(Subifitr*^?f wS heirs and Taylor ; and that affiant did not know that Wm.
S2Sr*Md ^' ^* Barbour, who had been summoned as a witness for
peciaUj whore the defendants, but was not present at the trial, couW
fendaate makes prove the facts stated in his affidavit. Barbour, in bis
tjSiJK^urf affidavit, states that he was present when the deposition

aJSS!d*fo?iMw ^^ ^^'®^' ^^^^^ mentioned, was taken, and that it was
tiiaL read over to him before he signed it; that he was present

SPRING TERM 1842. 277

m 1816 and 1817, when Miles contracted with Taylor for Taylob'* mim,
the land of which he afterwards got possession; that vs'

Taylor then and subsequently claimed the land as his ^'"'^°'' °'**'
own, and contracted in his own right and not as agent, &c.
and that Miles always claimed under Taylor, and wished
his heirs to carry the contract into effect. Upon these
affidavits it is to be remarked: 1st, that if it was intended
to suggest that the deposition of Miles, previously taken,
would discredit him by its discrepancy with his statement
on the trial, no reason is shown why it was not or could
not have been used for that purpose ; and, 2d, that it is
manifest from the course of the trial, that it must have
been understood by the active managers on both sides,
that the time and manner of taking possession by or
Tinder Taylor, were material, if not the principal points
to be put in issue by the evidence. In which case, if it
had been unknown to all the defendants that Barbour, a
witness whom they had summoned, could prove facta
materially affecting that issue, their ignorance, unaccount-
ed for, could only have been attributed to negligence, and
their subsequent discovery would not have entitled them
to a new trial — much less can the ignorance and discov-
ery of one only of several defendants, entitle them to a
new trial, when it does not appear either that he had the
management of the defence, or that the otheis were alike
ignorant with him. It is also to be remarked, upon the
snbject of surprise, that it is not shown that the other de-
fendants were surprised by the evidence of Miles, rela-
ting to Taylor's claim of agency, and the affidavit of the
defendant is subject to the same objection on this point,
as in relation to the ground of discoveiy. It is attempted,
however, to aid the affidavit by the fact drawn from the
lecord, that Miles was a defendant until the calling of the
cause for trial, when the suit was dismissed as to him;
whence it is argued that the remaining defendants must
have been ignorant, until the trial commenced, that he
would be a witness, and that he would state the facts
which he did state. But the mere use of a witness whom
the opposite party does not expect to be called on to de-
pose against him, cannot, in any ordinary case, be such
surprise as will be ground for a new tiial; and where, as

278

BEN. MONROE'S REPORTS.

Kovss
Datis.

in this case, the statement of such a witness relates to
facts known to be involved in the issue, and to which
each party is adducing evidence; even if the particular
statement of the witness might surprise the party against
whom he deposed, this would not authorize the granting
of a new trial, at any rate unless it was coupled with the
subsequent discovery of evidence to disprove the facts
stated by him, or at least with the disclosure of evidence
which, though known, would not have been useful but for
the introduction of the unexpected witness, and could
not be obtained afterwards in time. There is no such
discovery or disclosure in this case, as already shown,
nor is there even a discovery or disclosure of evidence
that could not have been used on the trial, which would
go to discredit the witness. Moreover, if the evidence of
Miles had been excluded, the case would have been sub-
stantially the same upon the evidence, and the afSdavits
disclose no ground for presuming that on another trial
the result would be different.

The Court, therefore, did not err in overruling the mo-
tion for a new trial, and there being no error in the record
to the prejudice of the appellants, the judgment is af-
firmed.

M' Henry and Morehead ^ Reed for appellants;
Thruston and Owsley cf Goodloe for appellees.

Covenant,
Case 85.

Apnl 23.
The case stated.

Kouns vs Davis.

Error to thb Grsbnup Circuit.
Sheriffs — principal and deputy. County leoy.

Chief Justicb Robebtbon delivered the Opinion of the Court

John C. Kouns having been appointed and duly qual-
ified the Sheriff of Greenup county for two years, depu-
tised Harris W, Thompson, sold to him the profits of
the sheriffalty for the entire term, and took from him a
bond with sureties to indemnify himself against all dam-
age that might result to him from the ofiicial conduct of
the substitute.

SPRING TERM 1842/ 279

Oa that bond Kouns brought this action of covenant Kouhs
for damages, alledging that Thompson, as deputy sheriff, Davis.
bad collected the county levy and failed to pay to a coun-
ty creditor (Hollingsworth) a debt of about $400, and
bad also failed to pay about $175 collected by him
on executions, in consequence of which delinquencies
Kouns himself had been compelled to pay the said
sums.

The Circuit Judge, to whom the case was submitted
for decision, rendered a judgment in favor of the plain-
tiff for the amount which he had been compelled to pay
on the executions, but refused a judgment for the sum
paid to Hollingsworth, because h6 was of the opinion
that the deputy's surety, who is alone sued, was not re-
sponsible for the coi:\nty levy which the sheriff was not
boand to collect unless he had chosen to be the collector
and given bond therefor, which he had not done until long
after the date of the bond of indemnity.

Kouns seeks a reversal of that judgment, and the de-
fendant insists that he was entitled to nothing, because,
as argued, the bond is void in consequence of the illegali-
ty of the sale of the office to the deputy.

Admitting that the contract of deputation was illegal, Jhe bond of a
and that, therefore, Kouns could not have enforced the hufprfncipai, for
payment of the price agreed to be given for the office, fomMcVof^ih©
nevertheless, the official acts of the deputy being valid duties of deputy^
and binding on the sheriff, there may be a right, both haimiess ^ the
legal and moral, to indemnity for his delinquencies. It pih^STmorai^
seems to us th&t such a right, as against the delinquent uie deputy**mSr
deputy, would have existed without any express contract bj comract, be
for securing it. profits of Uie of-

Bnt this, question has been settled by the constructive
operation of a statute of 1820, providing ' 'that a2Z bonds
"of indemnity hereafter executed by any deputy sheriff
"and his sureties, to the principal of such deputy sheriff,
"shall be good and valid in law, and any law declaring
"void such contracts is hereby repealed."

Prior to that enactment, this Court had decided, in the
case of Hull vs Davis, (1 LiU. 9,) that such a bond of
indemnity as that given in this case by a deputy who had
bought his office, was void, because it was subsidiary to

280 BEN. MONROE'S REPORTS.

Koo5a the illegal contract of sale, and therefore, should be
Davis. deemed inconsistent with public policy and repugnant to
the principles of the common law. That rule of law,
thus established, was deemed questionable in principle
and unjust and unreasonable in its operation; and, there-
fore, the statute of 1820 was enacted for abolishing **any
law"* declaring void such contracts, and also for legaliz-
ing a sheriff's right to indemnity, in all cases, from the
illegal or negligent acts of his deputy, however appointed.
There could iiave been no other motive for that enact-
ment; and unless thus construed, it can have no svaila.
ble operation. It has, therefore, been so interpreted and
applied by this Court: Bcddwin vs Bridges, (2 /. /.
Marsh, 7;) Combs vs Brashears, (6 lb, 633.)

By an act of 1799, it was made the official daty of
sheriffs to collect the county levies. But still, as decided
in Patton vs Lair, (4 /. /. Marsh. 249, ) if a sheriff re-
fused to execute bond for the collection of the county
levy, the county court had authority, under an act of 1797,
to appoint some other person "collector."

It is evident, therefore, that as Kouns did not choose
l^^^^i^Zyj to decline the official duty of collecting the county levy,
is anincidont to ^nd executed bond according to law, the actual collec-
iff, and when the tion was incident to his office of sheriff, and was made,
outes^^bond "or by his substitute, in his character of deputy sheriff; and
tfa^ dtpvLiy^ho consequently, the condition of the bond of indemnity,
collects it as embraciuiras it does, all Thompson* s eicis and omissions

such, IS respoa- _ ,./v. ^i.i« n . j-

•ibie to his orin- as deputy sheriff, must apply to his collection and non-
wrSa^tom payment of the levy. He derived his right to collect it

from the contract whereby he obtained the office of d^
puty sheriff, and would have had no such right if Koufis
bad been charged with the collection in any other charac-
ter than that of sheriff.

And the sureties in the bond of indemnity must be pre-
sumed to have looked to all the prospective duties of
sheriff as devolved by law — whether the devolntion was
certain at the date of the bond or only contingent. Tbey
certainly became responsibFe for all their principal's con-
duct as deputy sheriff; and, as deputy sheriff, he collect-
ed the county levy ; as dqpuiy sheriff, it was his duty to
pay it to the county creditors; and, therefore, as sheriff,

SPRING TERM 1842. 281

KouTts was held liable for his deputy's failure to pay Hoi Duhcait

lingStDOrth. Cokmovwialtii

We are, therefore, of the opinion that Kouns is enti- "*

tied to a judgment for the amount paid by him to Hoi-
lingsworlh.

Wherefore, the judgment is reversed and the cause re-
manded.

Apperson for plaintiff; BeaUy for defendant.

Duncan vs Commonwealth. IroicwMErr.

Erbor to the Lincoln Circuit. Case 90.

hidictmenl. Taverns and tipling houses.

JvMB Uabshall deUvered the Opinron of the Court. April 72^

If the room in which Duncan vended his liquors and o^^ ^^i^ ^^^^
other articles, was in good faith used as the bar room of ■pi^tiipiw u-
the tavern of Yates, who was a licensed tavern keeper, ofataTemhoase
and was used, so far as the vending and drinking of ordinaUonto'tiie
liquors was concerned, as Yates himself might have used JJ^^Sy hiTper-
it, without a violation of his bond, and if it was so used »?"■">«»» i» not
by the permission and authority of Yates, for the purpose dictment for
of supplying liquors as he might have done himself, and hoS5i!1)ut^pSS^
if liquors were sold in no other room of the tavern, and SJSJjfo^t^Jr-
this room, so far as regards the preservation of order and •««
decoram, remained under his control as a part of his
tavem, for the management of which he was responsible
under his bond — it seems to us that Duncan should not
be regarded as guilty of keeping a tipling house, though
the liquors which he thus sold were purchased at his own
exclusive cost, and sold for his own exclusive profit,
without any participation on the part of Yates, either in
the cost or the profit. And as the jury might or might
not, upon the evidence, have found all the facts above
stated, we are of opinion that the Court erred in instruct-
ing them, that unless Duncan and Yates were partners
they should find the former guilty. The true question is,
whether, so far as the vending of liquors was concerned,
the room was, in fact, used as a pait of the tavern, and

in subordination to it, as Yates himself might have used
Vol. II. 36

282 BEN. MONROE'S REPORTS.

Moou it. If SO, such use being by authority of Yates, was, in
Wbbb. our opinion, protected by the license to him.

" For the error in the instruction as above stated, the
judgment is reversed, and the cause remanded for a new
trial, in conformity with this opinion.

Harlan (^ Craddock for plaintiff; Cotes, Attorney Get^
eral, for Commonwealth.

B. HoaroA,

wm Ejectment. Moore V$ Webb-

100 766 Case 91. Erbor to the Madison CiRomT.

! i32^°^2 Ejectment. Devisees. LirnUaiion.

^^^^ ^^ April 23. Chief Justice Eqbbetson delivered the Opinion of the Ck>urt.

The CBM BUt^ ^BiB is an action of ejectment between two sistcni,

for about fifty acres of land, each of them claimiog title
from their father, who devised all his estate to their mo-
' ther, "to dispose of as she might think best whilst she
survived him," and declared, also, in his will, that what-
ever disposition she might make of it at her death ' 'should
be duly and strictly attended to and stand good in law/*
The plaintiff claimed the land under a conveyance from
her mother after the testator's death.

The defendant relied on evidence conducing strongly
to prove that, more than twenty years before the com-
mencement of this action, her father, who had sold %
acres of her land and applied the proceeds to his own
use, gave her, in lieu thereof, the tract now in suit, being
a part of his homestead — and that she had, under that
gift, which may have been verbal, occupied and claimed
the land ever since, as her own, without question or dis-
turbance, until sued in this case by the plaintiff,
instractiona of Upon this state of case the Circuit Judge instructed
the OreuitJudge the jury: 1st, that if they believed that the defendant,

with the knowledge of the plaintiff, and those under
whom she claims, had openly held the land adversely as
her own, for twenty years prior to the commencements
the action, they should find for her; and, 2d, that if she
was in the adverse possession at the date of the plaintiff '^
deed, that conveyance was champerlous and void.

SPRING TERM 1842. 283

Veidict and judgment were rendered for the defendant, Moobk
and the plaintiff now insists that there was error to her \v!?bb.
prejudice in the foregoing instructions. ""

The unqualified right of disposition given to the widow a dcWse of land
during her life, as well as at her death, imports, in our dS»^7ofVj22
judgment, a devise of the absolute title to her in fee, and wSj^he^il
not merely a life estate with a power of appointment at vWed// tnd bIm
her death; and, consequently, the plaintiff's title passed whatever dispo-
to her by her mother's deed, and not by her father's will, ^SSSntS to
as it would have done had the conveyance been made in J®*^» "^^^l*^ ^
execution of a power given by the will. attended to, and

It does not, therefore, become necessary now to decide uv ** importa^ii
(he question whether a person claiming through the exe- gJJJJJ ^j^lf^ ^
cation of an unlimited power of appointment, given by /««» *^^*' 4y*
will, should be deemed within the saving of devisees,
Crorn the operation of the act of 1824, against champerty.
And, of course, if the jury had a right to infer that the
defendant was, in fact and in law, adversely possessed at
the date of the conveyance to the plaintiff, the instruc-
tion, as to the invalidity of that deed, was not erroneous.

The whole case turns, therefore, on the other or first
instruction, which must be right unless there is some es<
toppel as to the legal character of the possession, or un-
less there was no authority for presuming an adverse
holding in fact.

Upon the facts, as proved, the jury were not, in our wherftheiaiher
opinion, bound to decide that the defendant entered and Eoaaewfon'* ^
held under an executory agreement, looking all the time iand,whociaixn»
to her father for an irrevocable consummation of title, gift from the &-
The sale, characterised as a "gift,'* even if not, in the ^^yewa'S"^
first instance, in writing, was neither void nor necessa- ■?ff^°'*» t,^^

' o' ^ may presume

rily executoiy. And, therefore, the contract never havmg that the poaaea-
been revoked, and SO years having elapsed, the jury had & not as tenant^
a right, as we think, to presume that the parties to it con- Jgfj^ i^^ ^*
sidered it as finally executed, and that the defendant did »<> fatUier aaam-

' ^ ance, and per-

not look to her father for further assurance; and they had hapa might pre-
a right, consequently, to infer that her possession was, in ance V** wTch
the available sense, adverse, and not that of a tenant. *•■*•
Moreover, if the parties considered the contract as im-
perfect and executory, or if it must be so considered in
W, we do not see why the jury might not have prcsum-

284 BEN. MONROE'S REPORTS. '

BoBivaoH ed a conveyance from the lapse of time. And, if the

ifiLLBB. testator considered the land not as his but the defendant's,

" the general devise of all his cstaU did not intend to pass

that land to his wife.
Though oite en- But even if the jury had been bound to consider the
?c«?J!^co'SrS; original contract as in effect executoiy. and the entry of
of purchase, and the defendant as in the legal character of a tenant at will,
legal character still she might have held adversely in fact; and if shd
^cy artm, ^et did SO hold for 20 years, with the knowledge of the
Sid fld»«wSy pl^^^^iff* *^d ^hose under whom she claims, the statute
in fcct, and in of limitations barred the plaintiff's right of entry. And,

mch ease an ad- . ... , ^■i«« i

verse holding for as already intimated, we are of the opinion that, how-
^e ^^SMwiTdiS ^ver the probabilities may preponderate, the jury had a

c^m2l°wiu**Sr "^^' ^^ ^^^^ ^^^^ *^® defendant's possession had been, in
qectment fad, adverse for at least 20 years preceding the instita.

tion of this suit, and with the knowledge, all the time,
of all parties concerned in that fact.

Consequently, we cannot decide that either of the in-
structions was erroneous. It is, therefore, considered
that the judgment of the Circuit Court be afiirmed.
Owsley df^ Goodloe for plaintiff; Turner for defendant

EjicTMBirT. Robinson vs Miller.

Case 92. Appeal fbom thb Madison Cibcuit.

Demsets. Dower. Tenant for life. Reversion,

April 25. Jupes Mabshall delivered the Opinion of the Court

The MM stated. "^^^^ ejectment of Robinson vs Miller, was formerly

before the Court, and the opinion then rendered, revers-
ing the judgment which the plaintiff had obtained, 1
B. Monroe, 88, is referred to as containing a genend
statement of the case as it then appeared on the record.
Upon the return of the cause to the Circuit Court, the
declaration was amended by striking out the demises
from Whitlow and wife and James Maxwell, leaving on-
ly the demise from Robinson, to whom James Maxwell
bad, in 1832, conveyed his interest in the 200 acres
which had descended to him from his father, Basil Max-
well; but James Maxwell having, by deed made is

SPRING TERM 1842. . 286

1820, conveyed to T. C. Page, uader whom the defen- Bobivsov
dtnt claims, bis interest in so much of the 200 acres as Millis.
lay outside of the dower tract allotted to his mother, the
deed to Robinson passed only bis interest of one third
in the dower tract of 58ft acres; and it was for the recov-
ery of this interest alone that the action was prosecuted
afier the amendment of the declaration. Upon the last
trial as on the first, the principal question on which the
plaintiff 's right of recovery depended, was whether the
dower right of B. Maxweiry. widow, acquiesced in and
lecognized as it had been, presented a valid obstacle to
the right of entry of the heirs of her husband or their
alienee. It was decided in the former opinion that al- Prmeipiei of the
though Basil Maxwell, who died in possession of the land, *|J^*' ttSF^F^
may not have had the legal title but only a perfect equity to proved,
the land, still by our laws his widow was entitled to her
dower therein, and was moreover, as against the heirs,
entitled to remain in the mansion house and retain pos-
session of the home farm until dower should be assign-
ed to her, and that this right was not affected by the con-
veyance of the legal title to the heirs, in consideration
solely of the equity which had descended to them from
their father, and that they did not acquire the right of en-
try against the widow by reason of such conveyance even
if there had been no allotment of her dower. It was
also decided, that although if Bazil Maxwell had only an
equitable title, the assignment of dower to his widow,
onder the authority of the County Court of Madison
county, had in itself no validity because the Court had
no power to make the assignment in such case, still the
subsequent acquiesence of all parties in the assign-
ment actually made, and the recognition of it by the
dowress in her deed conveying it to Page, and by the
heirs in their deeds (of 1820, 1822, and 1826,) convey-
ing their respective portions of the 200 acres outside of
the tract so assigned for dower, made it their act, and as
such, valid and bindings upon their alienees. To these
opinions we still adhere, and they must certainly be re-
regarded as governing this case at least, so far as they
are applicable to the facts now appearing.

286 BEN. MONROE'S REPORTS.

BoBiirsoK All the evidence introduced on the first trial was also

MiLLKs. brought forward on the last, but it was made more clearly

to appear, and may now be assumed, that neither Thorn-

ing in this case Es nor Bazil Maxwell had acquired the legal title, but

on the iMt trial ^j^^^ ^j^^ ^^^^ ^^^ j^^jj ^^ equitable title only until the

conveyance was made to the heirs of Basil Maxwell in
1816. It was further proved on the last trial that Thom-
as Maxwell, who died about the close of the year 1795,
left a widow who remained in the mansion house of her
husband upon this 200 acies, living with her son Bfl)zil
Maxwell, to whom her husband had devised the 200
acres in fee until his death, about the year 1810, aod
afterwards with his widow until her own death ; that in
January, 1812, one third of the 200 acres, including (he
mansion house and the whole of the 58ik acres, which
were afterwards allotted as the dower of B. Maxwell's
widow, was assigned her for her dower by Commission-
ers appointed by the County Court of Madison county,
and that she died before the assignment of dower to the
widow of Basil Maxwell which was in November, 1813.
inBtructions of Upon these new facts it is contended that Basil Maxwell's
jury in the last widow had no right to be endowed of any part of the
^^ land which had been assigned to the widow of Thomw

Maxwell for her dower, but had only a right of dower in
the remaining two thirds, and that the assignment of said
land to the widow of B. Maxwell having been made do-
ring the infancy of his heirs, and by their guardian, who
was interested in the dower, their acquiescence and re-
cognition of it, if made in ignorance of her having no
right to be endowed of that land, was not binding upon
them and was no bar to this suit, unless such acqui-
escence and recognition had continued more than twen-
ty years, and instructions to this effect, moved for by the
plaintiff having been refused by the Circuit Court, the
propriety of this refusal presents the chief question foi
our consideration.
ThedeTiseinthe In coming to the decision of this questicm it is neces-
5fail?eU^to^ sary to determine, first, the extent of the interest which
Maxwell. B. Maxwell took under his father's will, in one clause of

which the testator says : "i lecwe to my loved wifeA^
**thirds of this place I now live on her lifetime, likewise

SPRING TERM 1842. 287

"the household furniture and all my personal estate, &c. BoBiuaoii

"to dispose of it to the children as they grow up to the Millbb.

"age the law requires, as she may think proper, with the

"advice of the executors," &c. &c.; and in the next

elause he says, "I give to my oldest son, Bazil Maxwell,

"two hundred acres .of land that I now live on," &c. &c.;

"my son Bazil is hereby required and obligated to take

"the care and oversight of the family, and in particular .

"for the support of his mother, and in conjunction with

"her, to see how the children are disposed of." In all

the devises to his other children, he uses the words "I

give," &c.

The devise to the son, B. Maxwell, clearly imports T^econatraction
that he was to have the immediate fee in the whole tract. BazU Maxwr^ .
Shall it be restricted by the preceding clause? This should
not be done if any reasonable operation can be given to
the first clause, consistently with its language, and not
violating any obvious intention of the testator. May not
the first clause then be properly understood, not as
giving to the wife any interest or right in the land which
she would not otherwise have had, but as merely refer,
ring to and recognizing the right of dower, which the law
would give her, and leaving her to claim her thirds? If
the fini clause had been, "I leave to my wife her dower
Of her right of dower in the land I live on," and the next
clause, "I give to my son, B. M., two hundred acres of
land that I now live on," there could scarcely have been
a doubt that it was intended to give the immediate fee in
the whole land to his son, subject to the claim of dower,
jnat as it would have been if it had descended instead of
being devised to the son; and such, we are strongly
inclined to think, is the true constructive effect of the
will as actually written. He does not give his wife any
portion of the land, but leaves to her her thirds for life.
He gives to his son the whole 200 acres.

If such be the true construction of thd^ will, B. Max- Land ?^. "^^^^

1, , . , . - 1 . 1 . ^ • 1 . - ^v ™ testator waa

well being devisee of the immediate inheritance m the in ppsaeasion, he

entire tract and being in possession, was undoubtedly wi]^ her %iird8

seized or possessed to the whole extent, although the tes- Sf i»^oie^act"

taior's widow, having a right of dower, was also on the both residing on

land and living with him. For the mere right of dower same ftmi^, the

288 BEN. MONROE'S REPORTS.

RoBtNsoK being no actual present estate, and giving no right of

' MiLLBR. entry or possession, would not at all interfere with the

son is possessed extent of his possession or seizin; and if the right of the

of the whole •!* • • ±\ •!_ jiaa**

tract, subject to widow to remain in the mansion house and plantation of
MtwhTa'asswr her deceased husband until dower is assigned, would
«d' restrict the possession of the heir or devisee, who is in

possession with her, which we do npt admit, the statute
of 1796, giving such right in this state, had not passed
at the death of T. Maxwell, nor until a year afterwards.
B. Maxwell then being lawfully possessed or seized,
wife of the son during the coverture, of the whole 200 acres, his wifewu
}J^^7f"^^^^JJ,! entitled, as against his heirs, to be endowed of one third
tire tract. of the entire tract. Whether if the seizin which de-

scended to them from their father, and of which she claim-
ed to be endowed, was to any extent lawfully defeated
before the assignment of dower to her, this would have
been so far a sufficient answer to her claim of dower, ou
the ground that the seizin of which she claimed having
been so far defeated and divested, was as if it never had
been, need not be decided; because, in this case, there
was no act done which was of a nature to defeat or divest
the seizin of B. Maxwell to any extent. For though it
be admitted that the right of dower of T. Maxwell's wid-
ow would be paramount to that of B. MaxwelFs widow,
and that the effect either of a recovery of her dower or of
a proper assignment of it, would be to divest the seizin
of her son to the extent of the dower so recovered or as-
signed, according to the case stated in Coke on LMd(m,
31 a. 1 Thomas' Coke on Littleton, 574, it must be nn-
derstood that the endowment which would have ibis
effect, must either be by lawful recovery or by assignment
of the heir or of some one authorized to assign; audit
cannot be admitted that the assignment made by the
County Court, which had no authority to make it in such
a case, could have the effect, unless concurred in by the
heirs or their guardian, of which there is not the slightest
evidence.

Upon this construction of the will, therefore, we are
of opinion that the survivorship of the widow of Thomas
Maxwell, and the assignment of dower to her, made after
the death of Bazil Maxwell, had no effect upon the ex*

SPRING TERM l*^. 289

tefit of his seisin, or on the right of his widow to be en- BoBiwsow

dowed of one third of the whole tract; and therefore, did Millbh.

not change the law of the case, as to the effect of the '

assignment made to h«r (after the death of T. MaxwelFs

widow,) and concurred in by the heirs. And it is to be

observed, that the construction which has been put on the

will, is strengthened by the fact, that the second clause

obviously lays a burthen on the demise to Bazil Maxwell

in regard to the support of his mother — that she lived

with him for fifteen years without claiming her thirds,

either under the will or as dower, and that after his death

and at the expiration of sixteen years from the dealh of

her husband, she had the third part of the land assigned

to her by metes and bounds, not as her portion under the

will, but as dower. Whence it may be inferred that it

was understood, that the testator intended to provide for

her by the bequest of the persohal estate, and by the ob-

iigation imposed on B. Maxwell, of taking care of her

sapport, with the expectation, doubtless, that she was to

live with him upon the land, but leaving her to claim her

thirds in it or not, as she might choose.

If, however, this should not be the true construction of
the will, bat it should be understood as devising to the
testator's widow one third of the land for life, and if the
devise of the whole to B. Maxwell must, consequently,
be restricted so as to give him a present interest in two
thirds only* with the remainder in the other third, after
his mother's death, and if his seisin during bis mother's
life, must consequently be restricted to two-thirds of the
tract, and by reason of his dying first, was never extend-
ed to the remaining third, so that his widow was entitled
to be endowed only in two-thirds of the tract, stiii, as
Bazil Maxwell and Jiis mother were jointly possessed
during his life, without any partition, her interest and pos-
session did not exclude his possession and seisin from
one part rather than another, and as his widow and infant
heirs still remained jointly in possession with his mother,
and as the subsequent attempt to assign dower to the
latter, which was wholly inoperative as an assignment of
dower, was certainly not such a partition as could have
the effect of a legal severance of the possession and in-
Vol. 11. 37

290 BEN. MONROE'S REPORTS.

RoBXNiow terest, and did not, in fact, divest the possession which

Mix^LgB- the widow and heirs of B. Maxwell held, on which, until

lawful partition, they had a right to hold in common
with the widow of T. Maxwell, it seems to us that the
possession and seisin of B. Maxwell continued in his
widow and heirs, just as it had been in himself, unaffect-
ed either by the mere survivorship of his mother, or by the
ineffectual attempt to assign a seperate portion of the
land as her dower; and that, upon the death of his
mother, nothing having occurred to exclude his possession
and seisin from that part of the land which had been at-
tempted to be assigned to her, that part was rightfully
subject to the dower of his widow.

We have already decided that, although the assignment
of dower to B. Maxwell's widow was invalid as the act
of the County Court, it was by recognition of the heirs,
in their several deeds, conveying the adjoining lands, and
made after they came of age, adopted as their act. And
if it be conceded that the assignment of dower, by the
heir in a tract which was not subject to dower, but in sat-
isfaction of a rightful claim of dower in another tract,
would not, of itself, make the widow technically tenant
in dower of the land so assigned, ahd bar the right of
entry of the heir — and that a recognition by the heir of
such an assignment made by another, would be equally
ineffectual, unless the assignment was made or adopted
by the heir as an exchange, in which case he would have
no right to enter upon the land thus assigned, while he
kept that which had been retained in lieu of it; yet as the
land assigned for dower in this case was legally subject
to it, the simple assignment of it by the heir, or his re-
cognition of an assignment made by another, whereby
he adopts it and makes it his own, is all that is necessary
to confer upon the widow the technical character of tenant
in dower, implying and including the right of holdiog
the land free from the entry of the heir.
AMlgnment for ^^ conveyance from the heir to the dowress being ne-
dower, tiioneii cessary, but his mere assignment of her dower and de-

informally made *. r • i • . . , . . f

yet acquiesced Jivery 01 possession, or his recognition and adoption oi
yeara IndVlcSg^- such assignment and of her right of possession beingsof-
uttedbytheheii, ficient to complete her title as to him, it follows that the

SPRING TERM 1842. 291

recognition, as established in this case, was sufiScient Bobimok
without any aid from lapse of time, to give it strength. Miiaek.
The assignment of dower thus recognized, was by opera- when of full age*
tion of law, as effectual against the heirs as their actual ^iii^e^P^^^i**-
conveyance would have been. And although it may be,
that more in value or extent was assigned than the dowress
was strictly entitled to, and that this excess may, in the
present instance, have been the consequence of the heirs
being ignorant that their mother was not entitled to dower
in the whole tract, we do not perceive that the fact either
of their being an excess, or of its being caused by igno-
rance, as supposed, could have the effect to invalidate the
assignment in a court of law; or to give the heirs a right
of entry upon the dower land. If there had been, in this
case any evidence authorizing the inference that their re.
cognition of the assignment as previously made, was oc-
casioned by the fraud of the dowress or others identijfied
with her, in misrepresenting or concealing the extent of
her right, it might be necessary to decide to what weight
these facts would be entitled in this action of ejectment.
But there is, in our opinion, no legitimate ground in the
evidence for inferring that the widow or her husband, or
any others interested with her, knew any thing more,
either of the fact or of the law, upon which the extent of
the right of dower depended, than the heirs themselves
did, when they recognized and adopted the assignment of
dower which had been previously made. It may be ad.
ded that the heirs have never yet, so far as appears, al-
ledged their ignorance of the true extent of their mother's
right of dower, nor intimated any dissatisfaction with the
assignment as made ; and even the deed under which the
plaintiff claims the interest of one of them, does not im-
port that it was intended to convey any interest inconsis-
tent with the assignment which had long before been re-
cognized by the grantor: This consideration might not,
it is true, prevent the grantor from availing himself of any
legal objection affecting the validity of the assignment,
but it gives no aid to his attempt to bring into a court
of law any merely equitable objection, if any such objec-
tion actually exists.

292 BEN. MONROE'S REPORTS.

BoBiffsov Upon the whole, we are of the opinion that there was

MiLLBB. no error either in ovenuling the instructions as asked for
on the part of the plaintiff, or in giving that for which the
defendant moved, in which the acquiescence and recog-
nition by the heirs of the assignment of dower, as made,
was stated to be an effectual defence to the action, with-
out regard to the question of ignorance or fraud, of which
last there was no evidence.
Waste by dow- With regard to the two remaining points which have
•S*for°Hfe,**ii ^^^^ made in the case, it is necessary only to say, 1st,
not sufficient to ^jjat it never has been held, so far as we know, that proof

authorize a re- *•

eoverr in eject- of waste by a dowress or other tenant for life, is suffi-
tSSiioacr. * '^ cient to authorize a recovery in ejectment by the rever-
sioner, or that the forfeiture of the thing wasted is enfor- '
cible by any other remedy than the action of waste; and
we are not prepared to establish a precedent to that effect
in this case, even if there were no objections to the etu
forcement of the forfeiture, in favor of the present plain-
tiffs, and against the present defendant, which would pre-
KoT his^ it yet vail in the action of waste. And, 2d, that although by
Ky.%afatenaS ^he ancient law, which, however, has not yet been prac-
ftUhiiSSte^Yy *^c^^'y applied in this State, a tenant for life might forfeit
claiming the fee his estate by claiming the fee in a court of record, we

ID a court of re- , .1.11. • . ,. •

cordors court of have not seen that such a claim, made m a proceeding in
iTO^not by^the equity, which by the ancient law, was not held to be a
court of record? *^"^' ^^ iccord, has been deemed to be, of itself, aground
and the filing of of forfeiture; and we are decidedly of opinion that the
ant f(^ life a- filing of a bill by the tenant for life, against the rever-
Soner,*daiming sioner, in which he claims an equity in the fee, growing
•n equity in the out of the all edged acts of the reversioner himself, is not
oftiieaotsofthe a ground of forfeiting his estate, which would authorize
l^tTl^ound of ^^ ^"^^^1 ^^ recovery by the reversioner. The Conrt,
SwuSl? en- ^'^^''®''^^®» ^^^ "^* ^^ i" excluding the evidence on both

try by the reror. of these points.

Wherefore, the judgment is affirmed.
Turner for appellant; Brtck for appellee.

SPRING TERM 1842. 29$

Cryer V$ Cooper. Chancery.

Error to the Fayette Circuit. Case93.

Feme covert. Trustee, Executors..

tiBitf JusTxCB BoBSBTSON delivered the Opinion of the Court April 26.

In 1834, Spencer Cooper sent to his daughter, who The case stated-
had just intermarried with James Cryer, two yoang slaves,
a boy and a girl ; and there is abundant testimony con-
ducing to the deduction that he had given or intended to
secure those slaves to his said daughter's separate use, her
husband being apparently insolvent and perhaps impro-
vident.

The possession remained with Cryer and wife until
March, 1837, when Cooper, apprehending that the slaves
would be taken by some of Cryer's creditors, consulted
counsel as to the best mode of securing them to his
daughter; and the fruit of that consultation was a written '

contract between himself and Cryer, purporting that
Cnjer received the slaves as Cooper's bailee upon trust,
to hold them for Mrs. Cryer's exclusive benefit during
her father's ''life and good pleasure," and subject to be
taken away by him at any time, after a prescribed notice
of his purpose.

In 1839, Cooper died, without having indicated any
intention to reclaim the slaves; and in his will, he charg-
ed Mrs. Cryer with $1100, as an advancement, which
was to be deducted from a general devise to her of an
equal share of his estate, after her mother's death or se-
cond marriage, and he appointed her mother a trustee, to
hold to his said daughter's separate use, the estate thus
* 'provided'' for her.

Mrs. Cooper^ supposing that these two slaves had not
been absolutely given to Mrs. Cryer, took and retained
them in her character of her husband's executrix. And
Mrs. Cryer, claiming them as her separate estate in
equity, filed a bill for enforcing that trust.

The Circuit Court decreed that Mrs. Cooper should Decree of th»
hold the legal title in trust for Mrs. Cryer' s separate use, ^^'''"*' ^**"'-

294 BEN. MONROE'S REPORTS.

^■"" and decreed also that she should account for the value of

CoopBm the use of the slaves fiom the time she took them as her

husband's property until the date of the decree.

The executrix seeks the reversal of that decree.

A father placed Our deductions from all the facts exhibited in the re*

poMcssfen^ofhiS cord, is, that the slaves had, in fact, been given to Mrs.

daughter on mai- Cruer, for her separate use, by her father shortly after her

iiagC| o years ai' i»*i fii

terwaids took marriage; and that the subsequent ostensible contract
her ^husbaod to with Cn/er, was intended only as a mean for securiDg
baifee^orthe fe* ^^** i^^^ against CrycT and his creditors. Whatever may
ther, 10 Uie use be its literal import, however, she ought not to be affect-
the father made ed by it in equity. There having been a previous verbal
^*^iih?ch ****he g^'^^ to her exclusive use, the equitable trust thereby crea-
dauTter wiUi^n ^^^ could not have been defeated by the voluntary ar-
amouat about e- rangement between the parties as against whom that trust

qual to the value r 'li

of the siaTes, was eniorciDle.

hS? on the death ^"*' moreover, the written contract of bailment im-

or xnanim of ports, in our opinion, an intention that the slaves should

he appoints exe- be held for Mrs. Cryer until her father should elect to re-

Sn "^f^hSl voke the trust. This he never did, but, by his will, vir-

S^*su' char e5 ^'^^^'y recognized and made it irrevocable, by charging

is aforesaid, and her with an advancement to the amount of $1100, which,

nu>ih<» ^ trustee according to the proof, was about what be had advanced,

nlid^ thaPuie i^ **^®*® slaves be included, at the price he put on them

■laTes should be when he first gave them to her.

held by the mo- ., <.i .. « ,. ,.

thei am trustee. And we are of the opinion, also, that it was the testa-
to&^hter! tor's intention that his widow should be Mrs. Cryer's

trustee, not only as to the estate expressly devised, butas
to that also which had been previously advanced, as re-
cognized by his will, and which, therefore, was consider-
ed by him as a portion of what he bad "provided" for his
■aid daughter's exclusive use.

It is our opinion and decree, therefore, that the decree
of the Circuit Court be affirmed.

Sobinson ^ Johnson for appellant; MCMa for ap-
pellee.

SPRING TERM 1842. 296

Mize, &c. vs Noland, Atto. &c. Motiow.

Error to the Estill County Court. Case 94.

Motion. AbcUemenl, Sheriff,

JuDOB Mab3Hall delivered the Opinion of the ConrL April 26.

It seems to this Court that the evidence offered to es-
tablish the delinquency of the sheriff in paying over mo-
ney in his hands, belonging to the county, was insuffi-
cient to authorize a judgment against his sureties in this
motion.

The act of 1793, (Stat. Law, 503,) authorizes the ?S« «,^"l«,of

y« rn . * . «.ii»ii 1 1™3| {Stat. Law

County Court to appomt two of their own body to settle. 603,) requires
with the sheriff or collector, after notifying him of the who aro emSuSI
lime and place of the intended settlement; and provides c^art***to »eitie
that if on such settlement, a balance should be found with a eheriff,

,,. i^*iii**ij •! * t 'Bhould be mem-

against bim, which he fails to pay, a judgment may be beisofUieOonii-
rendered against him or his securities. The settlement ^iy ^etifement
relied on in this case, was not made by two justices, but »»^« ^^®fj«"?
by two persons, one of whom at least, was not a member evidence against
of the County Court, and deriving uo weight or authority
from the statute, it was insufficient of itself, to establish
(he facts which it states; and there being no other evi-
dence of a balance due from the sheriff, the judgment
against the securities cannot be sustained.

With regard to the objection that one of the sureties Matters properly
was not included in the motion, and was not mentioned a procee'^V ^
or noticed in any part of the proceeding, this was clearly "ade mS^conit
matter in abatement only; and though it may not have below, and Uie
been necessary to plead it in the County Court, it was to show snch
necessary to rely upon it there in some form, and at least Sad!?'*ottt*^ hf
to prove the fact that the omitted party was living when So?*i>e%ffecta-
the motion was instituted, in order to make the objection aiij relied on in
available here. "^^ ^"^

With regard to the form of the judgment; if the mo.
tion had been entered on the record as it should have
been, in the name of the justices of the County Court,
&o. by their attorney, instead of being entered in the
name of tiie attorney, the judgment for the jdaintiff or

296 BEN. MONROE'S REPORTS.

Common wxALTH plaintiffs, would have been, in point of form, unobjec-
Luck. tjonable.

For the want of sufficient evidence of the balance dae
from and unpaid by the sheriff, the judgment is reversed
and the cause remanded.

Apperson for plaintiffs ; Owsley ^ Goodloe for def *ts.

Indictment. Commonwealth vs Luck.

Case 96. Error to the Christian Circuit.

Indictment. Tipling houses.

April 27. JoDOB Maiukajx delivered the Opinion of the Court

The statnte of ^"^ seems to this Court that the imposition of a tai by
iS36, {Sea. Acta, public authority, and the payment thereof by the indi-
ertolhe^istees vidual (o whom it is applicable, implies a concession to

to u^e^'u^^^^ ^^™ ^^ ^^® "Sht to do, or use. or enjoy the thing for which
^nsaj, is, aa to the tax is imposed and paid ; and is. therefore, virtoally
such license, a a license to that effect, which, of course, is inconsistent
Se^gMciai law ^i^h the right of afterwards suppressing the thing or im-
snd a protection, posing a penalty for the doing, or using, or enjoying of

it, during the period for which the tax was paid. On this
principle we are of opinion that the power conferred by
the act of February 3, 1836, (Session Acts, 66,) upon
ihe trustees of the town of Hopkinsville, to impose a tax
not exceeding fifty dollars, upon the owner of each tip-
ling house in said town, is in effect, a power to license
tipling houses within that town; and that the imposition
of the tax under this power, and the payment of it by the
individual subject to it, operates as a license under the
authority of the State, and therefore, quo ad hoc, repeals
or suspends the pre-existing laws imposing penalties in
behalf of the Commonwealth, for the keeping of a tip-
ling house, and exempts the party from such penalties
during the time for which the tax was imposed and paid;
and further, as the object of the statute in conferring the
power, was to bestow upon the 'trustees, at their option,
a revenue, to be derived from an annual tax of $50 or
less, upon tipling houses in said town, we are of opinion
that, by exercising the power of imposing the tax, the

SPRING TERM 1842, SSf7

trustees acquired the right, under the statute, to receive c«wioim«Ai.Tm
and coerce the tax. which, upon the principle above sta- Luck.
ted, excludes the right of the State to enforce the penalty
against the tipling house, *which is the subject of the tax,
so long as it is subject to the tax by the ordinance of the
trustees, and under the authority of the statute. For the
enforcing of the penalty by the State is inconsistent with
the right of imposing and receiving the tax by the trustees,
which implies protection of the thing taxed ; and it iis im-
material to the State whether the tax be payable in ad-
vance as for a license, or be charged and collectable as
other taxes. The imposition of it, including the right of
collection, excludes the statutory penalty.
It is essential then, in making out a defence on this A]>feaTe)ymgoii

■ • X • J* A —A ^1 • J.* f 1- such licenso

ground, agamst an indictment for keepmg a tipling house must nho^ tbct
in the town of Hopkinsville, to show that the trustees had, {J^JJJ ^^cotI
under the power conferred by the statute, imposed a tax «" the period
upon the owners or keepers of tipling houses, either in ed the offenea
the form of the price of a license, to be paid for in ad- ^"<'«''"^**^
vance, or as a tax collectable in the ordinary way; and
ftat the defendant had obtained the license for a period
covering the time when the indictment charges the offence
to have been committed, or that he had paid, or was reg-
ularly subject to pay the tax for the same period.

The plea in this case, does not aver that the trustees
had imposed the tax, or that the defendant had obtained a
license for a period including the day charged in the in-
dictment, or that the $50 which he alledges he paid as
lax, &c. on the 30th of March, was the tax for a period
iBcluding the 3d of May following, which is named in
tbe indictment. The plea is, therefore, defective in this
respect, and the Court erred in overruling the demurrer
to it.

Wherefore, ihe judgment is reversed, and the cause re-
manded, with directions to sustain tbe demurrer to the
defendant's plea, and for further proceedings in confer-
irrity with this opinion.

Cotes, Attorney Gtneral, for Commonwealth*

Vol. II. 38

S9S BEN. MONROE'S REPORTS.

Ca8b. Woodrow v$ Davis et al.

Cast 96. Error to the Greenup Circdit.

Pravd. Possession. Creditors and purchasers,

April 28. Chibf Justiob Robebtson delivered the Opinion of the Court.

^ . In this case the only question for revision is, whether

Til© possession . • *

of the vendor of the continued retertlion of the possession and use of a
i7 anefan ^a£so- slave by a vendor, under a contract of hire, though as
Jnte sale is, per ostensible ovvner, after an absolute sale of the title by

««, Iraudulent * '

against subse- him to another, should be deemed, per sc, fraudulent as
^asweliasBubse- to the subsequent creditors of such vendor, who became
quent purcha- ^^^;^ wMlst that possession wos continued. That suci

subsequent creditors are as much entitled to proteciion
as subsequent purchasers under the like circumstances,
there can be no reason to doubt, either on principle or
authority. The apparent ownership may be equally de-
lusive- to each class ; and no doctrine has been more con-
clusively settled in this State, by adjudged cases, or more
invariably recognized and applied, than that which de-
nounces such a continued possession of a movable as a
fraud, conclusive and intra versable, so far as such hou
fide creditors and purchasers may have been affected
thereby.

Nevertheless, a very elaborate, able and eloquent ar-
gument has been made to us against this legal doctrine
in this case, and we have been invoked, by the example
of the martyred Gallileo, to renounce and extirpate it as
a juridical heresy, inapplicable to our institutions, incon-
sistent with the harmony of law, and pestilent as an
U^as in the field of jurisprudence.

But this invocation has not been addressed to the prop-
er department. Though the judiciary reconciles discor-
dant doctrines, and sometimes educes a new doctrine from
the reason of the law, and, in that way, may be consid-
ered as often making law, yet, when a doctrine of the
law has been long established by an unbroken chain of
judicial recognitions, tacitly sanctioned by the legisla-

SPRING TERM 1842. • 299

tive department, this Court cannot repeal or elude it, ^n
however arbitrary or anomalous it might seem to be. Ron 6l Ptnn:

The rule of law we are now considering is too matur- •""""""— ^
ed and deeply-rooted in Kentucky to permit this Court
to attempt its extirpation. In this respect it may be un-
like the modern British doctrine as to the constructive
fraudulency, per se, of voluntary conveyances.

As the Circuit Judge applied, in this case, the law we
are now recognizing, as to movable property, and as the
facts exhibited were indisputable, we feel constrained, as •

judges, to affirm the judgment.

Bord and Z). Trimble for plaintiff; BeaUy for defen-
dants.

Gore vs Ross and Pettit. Dsvr.

Ebrob to thb Frankus CrBGuiT. c^g 97,

Non est factum. New tried.

Gmr Jutnoi Bobutsor deUvered the Opinion of die Court April 28L

All the pleas in this case are substantially good. But *
bad any of them been defective, they were cured by the blank note m
valid and substantial issues formed and tried thereon. avowed aod8ia«

And if, as positively and explicitly testified on the tiial, f nabfiSgfiTpriSf
Ross signed the blank note for the avowed and single cipai to borrow
purpose of enabling his principal to borrow money from andno other per*
Sadduth, and make the note payable to him and no other u^cef" without
person, and the obligee, Pettit, to whom U was afterwards ^coneenroflR
made payable, without Ross' knowledge or consent, and ^nxtu, makes it
the assignee, Gore, had notice of that purpose and lim> I ba?e^noiiceof
tation, there can be no doubt that the plea of non est Sea^of no» '«rt
/ac/wm by Ross, was conclusively sustained; for certainly '^^^J^*^ ^
he might, for good cause, have been willing to be a surety
to one creditor, when he would not have consented to be
80 bound to another, in whose justice and forbearance he
bad not as much confidence : Conway vs The Bank of
the United States, (6 /. /. Marshall)

Nor can it be doubted that the witness, Pettit, was
competent, for being both obligee and assignor, he was

300 BEN. MONROE'S REPORTS.

])ati» testifying against his apparent legal interest, ix^ giving
. Ub, evidence against Ross' obligation as surety.

And, although it is evident that Govt has been basely
^^^deccrJe^ deceived and seduced out of bis money advanced to Pet-
IShk^ it ^ tit, the principal in the note, yet the testimony, if accred-
it is withou?^ ited, proves that he was deluded by the two Pettits, and
"^^- not by Ross.

And now, tbeiefore, although the judgment may be a
very hard one, we cannot judicially decide that Uie jury
and Circuit Judge, who saw, and heaid, and probably
knew the witness, Pettit, ought not to have accredited his
testimony, unimpeached as be was by any other witness.
And consequently, we cannot set aside the verdict foi
want of evidence tosustain it.

The judgment, in bar of the action against Ross, must,
therefore, be affirmed.

Hewitt, Morehead (^ Reed for plaintiff; Cates ^ Lindr
sey for defendants.

Case 98. Esror to the Habdin Cibcuit.

Forcible entry and ddainer. Ejectment. Possession,

Aprit^S, ^VDO> MAMHm. delivered Uie OpinioA of tiie Court.

Although it is true that after a judgment for the plain-
^ymarlttTea tiff in ejectment, the lessor may enter and take posses*
jec^ent in^ his ^^on of the premises recovered, without the process or
fercfbi/^* entM ^^^ o^cer of the law; yet this right must be understood
iHthout the aid 9a being subject to the qualification, that if the entry be
and the office^h against the will or without the assent of the person or per-
^ wiulin^ ^ sons who have the possession in fact, the possession ac>
Se *tSte^^^^ quired by such entry is not a lawful or indefeasible pos-
session; but the entry being, by the express terms of the
statute relating to forcible entries and detainers, a forcible
Bntry, the possession is, by the provisions of the same
statute, subject to be removed and regained by the party
on whom ttie entry is made.
The judgment, indeed, ascertains and establisbes the
ejectmenruce? pre-eiisting right of entry of the lessor, and also asce^

SPRING TERM 1842.

301

tains and establishes the daty of the defendant to restore
the possession to him ; but of itself it neither deprives
the defendant of the possession in fact, nor coerces his
consent to the entry of the plaintiff, and its great efficacy
consists in its giving to the plaintiff or his lessor, the im-
mediate command of the public power and authority for
the enforcement of his right.

The law gives this aid through its process and its offi-
cers, not merely that the right may be enforced, but also,
that it may be enforced peaceably and according to law;
and it does not allow private force even for the recovery
of that which has been adjudged to the party. The first
section of the statute against forcible entries and detain-
ers, expressly prohibits an entry with any manner of force»
even where an entry is given by law. The following sec-
tions prescribe the remedy for an entry contrary to the
provisions of the first section; and the 17th section de-
fines the forcible entry intended by the act, as being an
entry with or without multitude of people, against the
will or without the consent of the party having the pos-
session in fact. Such an entry having been indisputably
proved in this case, the remedy given by the statute is
clearly applicable, and the judgment in ejectment forma
no obstacle to it. The instructions given to the jury to
this efiect, were, therefore, not erroneous and the judg-
ment is affirmed.

Allen for plaintiff; OtosUy ^ Goodloe for defendant.

JORimON

BBVClUEMJOVaB

etaL

taiQ9 the right to
possess ioa« but
does not aWest
the possession in
fact, but onlf
^ives the authoi*
ity of law
through its pro-
cess, and the of*
ficersof the law
to regain the
possession.

Johnston t;^^ Breckenridge et al.

Appbal from thb Jxffbrsoh Circuit.
Estappd. Parties and primes.

Omp JvsnoB Bobbstsov delivered the Opinion of the Court.

Although the prior entry of the elder patentee may
not constructively cover the land claimed in this case by,
and decreed to the parties holding under the junior pa-
tent and entry, nevertheless all parties claiming as they
do, tinder Daniel, who made the entries, the appellant
b, in our opinion, protected to the extent of the inter-

CHAHCBSr.

Case 99.

D. haling aa el-
^er eatiy tad
grant conTaya— >
aflerajunioffOB-
tij in the name
of D. is made to
interfere with
the first— held
that those claim-

302

BEN. MONROE'S REPORTS.

McGiNLxr

V3
McLAUGHLtir.

ing nnder the ju-
nior entry are
estopped, as D
himself 'would
be, to say that
the first entry
patented & con-
▼eycd by D. was
not legally sur-
Teyed according
to entry.

ference between the surveys and patents (about 460
acres) by DanieVs conveyance to his (the appellant's)
ancestor of 800 acres of his (Daniel's) "survey*' of 1000
acres. That survey embraces the whole of the land de-
creed to the appellees under a subsequent survey made
on one of Daniel's junior entries, assigned after Ihe date
of the said conveyance, which identifies ihe land convey-
ed as bounded and embraced by the survey as made, and
therefore, as it appears that this deed includes the land
in controversy, it operates as an estoppel against Daniel
and all persons claiming, as the appellees do, subse.
quently under him, from disturbing the appellant's right
to the land so identified and sold, by going behind that
survey and showing that the entry did not, according to
legal construction, include all the land embraced by the
survey as made, and thus recognized by Daniel himself.

Upon this ground, therefore, we are clearly of the
opinion that the decree against the iappellant is unsus-
tainable. That decree is consequently reversed and the
cause remanded, with instructions to dismiss the bill
and dissolve the injunction as to the appellant.

Guthrie unA Morehead fy Reediot h^'peWtnis', Lough'
borough for appellee.

Assumpsit.
Case 100.

April 79.

One days notice
to take a depo-
sition in Louis-
ville to one re-
siding two miles
from the city, is
reasonable as to
time and auffi-
eiently certain
as to place.

.McGinley vs McLaughlin.

Error to the Jefferson Circuit.
Notice. Depositions. Judgments. Clerical misprision.

Chief Justice Bobb&tson delivered the Opinion of the Court.

Service of notice on the second of the month on the
defendant, living only two miles from Louisville, was
not unreasonable as to time for taking depositions in
that city oh the next day. Nor does the simple circam-
stance that the notice designated no particular hour for
taking the depositions, entitle the party notified to object
to the reading of them on the trial. Had he altended on
the 3d, and been nevertheless unreasonably deprived of
the privilege of cross examination^ proof of that fact

SPRING TERM 1842. 303

might have been sufficient for rejecting the depositions ; Koum

he ought to have attended on the day fixed. Bank of Kt.

Not was the isolated fact that the depositions were ^^^

wholly in the hand writing of the counsel of the party tionis \?hoiiym

whotookthem, sufficient, per 56, for rejecting them. The of the counsel

practice of permitting depositions to be thus written is °ng^ti8"ot,per

unsafe, and positively injurious, and therefore it ought J^^* io°*^-2^^h '

to be rebuked and altogether discontinued, unless the practice of coun-

parties are present and consent. But still the official depoalrn^liouid

certificate of the magistiate who superintended the tak- not^n^d1u|edun^

ingofthe depositions must be accredited: and nothing Jess both parUes

, . , r 1 1 **® present and

else appearing, we must presume therefore, that the re* consenL
sponses of the deponents have not been colored or dis-
torted, but purport to be precisely such as they were in.
tended by the deponents themselves to have been.

Moreover, in this case, the facts proved are such as to
exclude all suspicion of essential discoloration.

And, although the judgment as exhibited in the trans- ^Suitagain■ttwo,

cript before us, is against the defendants, yet it must be and judgment a-

legally, interpreted as a judgment against McOinlcy ff thoulfS

alone: because the suit having been abated as to his understood a« a-

«-,,,, , gainst him only

partner, on a return of "not found, there was only one who was before

defendant, and in such a case, defendants and defendant fendant— theuse

are deemed as synonymous as they could have been had f^j^anu^^ ^a

the declaration been filed against one alone, and in such cieTicai mispris-

ion andomenda-

a case even if the judgment be literally erroneous, it is bie.
amendable as a direct misprision.

Judgment therefore affirmed.

Guthrie for plaintiff.

Kouns vs Bank of Kentucky. Motion.

Error to the Fayette Circuit. Cctse 101.

Motion. Principal and surety,

Juses Ewise delivered the opinion of Uie Conxt April 28.^

Tbucblb became indebted to the Bank of Kentucky, x^e case suted.
with Combs as surety, in the sum of $1500; judgment
was recovered against them for the amount in the Fayette

304 BEN. MONROE'S REPORTS.

Konifs Circuit Court, where Combs resided, and by an arrange-
Bank of Kt. ment between the counsel for the Bank and Trimble, flie

execution was issued and sent to Greenup county, where
the principal resided and where his property was to be
found. The Sheriff instead of selling the property of Trim-
ble in satisfaction of the debt, permitted him to replevy
the same with Kouns and others as his sureties. The
Cashier of the Bank threatened to quash the bond after its
return to the office, upon the ground that Combs had not
joined in it. After the execution was taken out on the same,
directed to Greenup, Combs made an arrangement with
the Bank by which he satisfied the debt and procured the
execution to be assigned to Batey, his agent, an attor-
ney in Greenup, and sent the execution there for collec-
tion. Upon the^ facts, Kouns, the surety of Trimble
in the replevin bond, moved the Court to quash the
bond and execution and return thereon upon the ground
that the debt had been paid and the bond satisfied. This
motion was overruled by the Circuit Court and the case
has been brought to this Court by Kouns for revision.
iThoTigh it be ii- We think the motion was properly oveiroled, though
*heriff to ^2dmk ^* ^^ irregular in the Sheriff to allow a replevin bond to
a part of tbe de- be executed uuless all the defendants in the execution
«cuiion to repie- had joined in the same, yet the bond having been taken
M ukea Is'^au ^^^ rfetuined to the office, was valid and binding on the
^^ *boirf 'unui ^'^^^8^^'* *® ^ replevin bond until quashed by the order of
quashed 'at the the Court on the motion of the plaintiff in the execution
tiff-*^*Ae VS- fi^loJis* made in due time. As a valid replevin bond, it
Seieu^"^*'^^** merged the judgment and released Combs from respon.

sibility, and he not being a party to the bond, had as
dant (surety) left much right as any other to make an arrangement with the
?^b2ndm\riaw. Bank for the benefit of the execution. The fact that he
Seneift^^of 'siwh ^^^ moved to this arrangement by an apprehension of
xepievv bond, & eventual responsibility, in case the Bank shwild make
that account be and sustain a motion to quash the bond, can make no
at*^Ae^i2?toci difference; nor has Kouns any just ground to complain—
of the other de- he entered into the bond as the surety of Trimble, and

feadant (surety) , , t> a* % -, ,.. •..

in t!i6 jadfment not as the surety of Combs ; by entenng mto the bond
Se^'aftbT^ *"* he has not benefitted Oombs, but may and most likely

has done him an injury, for had he not joined in ft»
bond tiie money might long innce have been made ont o^

SPRING TERM 1842. 305

the property of Trimble the principal debtor, or his prop- k«um«
erty sold on a three months credit, to the full amount of Bahkof Kt.
the debt, and fee sale bonds of third persons taken*
whereby Combs would have been entirely released from
all further responsibility or trouble.

In the case of Parsons "vs Breddoci, (2 Vernon, 603,)
the Chancellor ordered the principal debtor to assign to
an original surety, who had been compelled to pay the
debt, a bail bond which had been executed with other
sureties. And the action of the Chancellor in that case
was cited with approbation by this Court, in the case of
Patterson vs Pope, (5 Dana, 244.) By the execution of
the bail bond, the principal debtor had been kept out of
jail, whereas had the sureties not joined in the bail bond
be might have been put in jail and thereby coerced to pay
the debt, whereby the original surety would have been
discharged from liability. In this case the sureties, by
entering into the replevin bond, have suspended the exe-
cution and saved the property of the principal debtor from
sale, whereby the debt may have been made; and the
original surety. Combs, having paid the debt, asks not
that the replevin bond shall be assigned to him, but hav-
ing obtained the assignment, asks merely that the bond,
which never has been paid by any of the obligors therein,
shall not be quashed and he be deprived of the benefit of
his indemnity thereon. Had tiie sureties in the replevin
bond paid the debt they would have no right to ask con*
tribntion from Combs for any part of the amount; as they
have not paid it, but the amount has been satisfied by
Combs, upon consideration of the assignment by the
Bank of the bond or use of the execution to him, they
have no more right to quash the bond on the ground of
payment than if it still belonged to the Bank, and no
satisfaction or arrangement had been made by Combs.

The judgment of the Circuit Court is, therefore, afiirm-
ed with costs.

Coles ^ Lindsey for plaintiff; Robinson <^ Johnson for
defendants.

Vol. II. 39

30ft BEN. MONKOB^S ftEPOHTS.

MoTioBT. Hoskins vs Cox.

Case 102. . Appear from the Booifs. OiRpuix. .

fbrciUe entry i Pos9e^si(m. Itistructions.

April 30. JooeE. KUbsIiall delivered the Opinion of the Oourt

THBJury in the country . having found the defendant
guilty of a forcible detainer only, the issue in the Circuit
Court, upon, the traverse of the inquisition^ was confined
to the question whether the defendant was guilty of a
forcible detainer, and. there being no evidence whatever
of aforcible detainer, the verdict finding the inquisitions
tru^/ was against law, and unsupported* by the evidence;
Cammaci vs JMacy ,. (3 Marshall, 291 ;) Sinclair vs San-
ders, (3 J. /. Marshalli 303;.) The C6urt coilsequently
erred in not granting a new trieilon this grounds As foi
this error the judgment must be. reversed, and as the
plaintiff never can recover upon proof of a forcible entry
merely, and as we cannot say, from' any thing in this re^
cord, that he will, on another triad, offer any evidence of
afordble detainer. We deem it unnecessary eitherto
One who pur- inquire whether the jury would have been autborized^
hu^^es^ran" ^P^^ ^^^ evidence as contained in the bill of excep-
takes posseBsion tions, to find the defendant guilty of a forcible entry«

only to the lines, . •! • j i m ^i • ^ ^' • j

though an error Of to- consider in detail, the instructions given aud

TOiS^^th?m?e »f«««d» all of which seem, to relate exclusively to the

^' d^^^t?*^ "* "^" q^^estion of a forcible entry upon the possession in fact,

tity, and the dis- of the plaintiff, or lather to the question whether b^ bad

lor^doesnot^pw aBy.such possessiott in fact, as would authorize him to

•S±:«?.^''^ k"* maintain the wiit for forcible entry.

possession be- '

yond where it As it is .possible, however, that the question of for*
limited, ^wii^out cible entry m&y hereaiSter arise as subsidiary, to the '
#n actual entry, ^^^i^^^ <jf forcible . detainer, we. will, say that the

line actually run by direction of the plaintiff) as the
boundary of his purchase on the easd, as it limited his
claim so it limited his possession subsequently taken*
though it did not absolutely limit his right under his pur-
chase; that the subsequent discovery of the fact that in
running this eastern boundary, he had mistaken the object

SPRING TERM 1842. 307

or line called for in his title bond, which being further Hoskins
east, included the land in contest, which lies between the Coz.

two lines, and is covered by an older patent than his, did
not, ipso facto, extend bis possession: o\qi the line by
which it was origirially limited, biit he must actually have
entered upon it and takdn possess^ion of it to effect such
extension; and unless :^uch extenaioa*was thus effected
before the entry of the defendant, she could not have
been guilty of a forcible eiiCry upon him; but he woiild
have been guilty Of a forcible entry upon the possesaion
of the defendant drof those whom sbe succeeded, claim*
ing under the elder patent which could have given hifa
possession only to the extent of his actual enclosure.

And further, that such entry upoo the land between the in such csm th«
two lines, after the discovery of his mistake, would not not^wUhoutaubl
give him . possession beyond his actual close, if at the ^SS^JJiafoSiSi
time of such entry, Taylor holding an undivided interest ^^\^» .4fc^ >•

J ' J o ^aiofit ope who

under the elder patent of Ash, &c., a'Ad claiming to the eaten beiween

extent of its boundaries, was in possession by himself or would"a?'en?f

tenants, of any tenement within the interference between ^ ofBudl"miB-

that patent and the younger patent of Fowler, under take between Uia

lines dT6 DOB"

which the defendant claims ; unless before any possession sewion b^voad
was taken or held under the senior patent, possession if l^o Ser claS-
was taken of (he land in contest under the junior patent ^^ Mtent*wi
of Fowler, and has been held ever since, to the time of in poaseasion,
the edfitry of the defendant complained of; nor could he extlot of Uia
recover in this warrant, even for a forcible entry of the pS^nl*'^*'^""''^
defendant on his possession, uilless such entry was rttoiAe
within two years before the emanation of the warrant.
The instructions given for the plaintiff were not altogether
consistent with these propositions, and seem to be in
some respects inconsistent with those given for the defen-
dant, and being calculated to mislead the jury, may and
probably did have an improper influence on the verdict.

Wherefore, the judgment is reversed and the cause re-
manded for a new trial in conformity with this opinion.

Catts if Lindsey for plaintiff.

308 BEN. MONROE'S REPORTS.

The cue utatocL

o^m Chawoert. Berry v$ Rogers,

Case 103. Error to the Bath Circuit.

Jurisdiction. Lunacy. Parties in chancery^

April 30. CrafiF Jwncz Bobsetson delivered the Opinion of the Court.

V. This is a bill in chancery, filed against the committee of
a lunatic, for a decree upon a covenant dated before the
occurrence of the lunacy, for paying all damages that had
resulted from the shooting of a slave of the complainant's
intestate.

The Circuit Court sustained a demurrer to the bill and
thereupon dismissed it absolutely.
1 * • .^- Had the omission to make the lunatic a co-party with

In suits m eqni- , * '

ty, affectiiif the bis committee, been the only objection to the bill, we
^, Uieyare^ot shoold not doubt that the decree was erroneous ; because,
eiwe^* ^plrStS) 1st, in a suit in equity, in personam, the lunatic should

^oQgh Uiey may uQt be deemed an indispensable, though he may be a pro-
be proper defen- ,.», *, , ^ n i -rr ^ »t

^ants. per defendant: Executors of Brashearvs Van Couriland^

In such case, (2 Johnson's Chy. Rqpis, 246.) And, 2ndly, if the luna-

5c ira^neceiaa^ ^^^ ^^* ^^ ^^^^ ^ ^^^' ^ necessary party, the Circuit
ly party on de-^ Judj^e oueht to have given leave to amend after hearing

murrer sustain- ^, j ° j ..° , i j* • ^i.

«d, leare should the demurrer, and it was also erroneous to dismiss the
menT*Sid^°nS bill absolutely for want of parties: 8 Vezy, 398; 11 lb.

futdj!* '^'''" '^^'^ ^ Cranch, 220; 3 Bibb, 314.

But there is, we apprehend, a more radical objectioii

to the bill — an action in a court of common law was the

only appropriate remedy.
Courts of Chan- '^^^ committee has no interest in the property of the
^^'^ "ti^^'t^^^ lunatic, he is curator merely. And although, under the
decree a sale of Statutory law of this State, a court of equity is charged
^I esSte^'of'a with a supervision and ultimate control of the estates of
debts^^anr^Sle ^^^^^^^^^s, in the custody of their committees, so far as may
committee of lu- become necessary for maintenance, still our local law
interest in their vests in a Chancellor no authority to direct the sale of
m^meleljcurZ ^"7 po^ion of such estate for payment of the lunatic's
««^«- debts.

The Chancellor's A statute of New York empowered the Chancellor to
power in N. Y. ^^^^^ ^ ^^j^ ^j. ^j^^ lunalic's estate for paying his debts;

SPRING TERM 1842. 309

and moreover, provided that it should not be alienated Bbbby
otherwise than by the Chancellor's order or permission. roobes.
Chancellor Kent, therefore, decided that, in that State,
the estate of a lunatic, in his committees hands, was plac-
ed by law under the power of the Chancellor, in trust for
his creditors, as well as for maintenance; and that, as it
coaldbe alienated onZy with the consent of the Chancel-
lor, a creditor's remedy for his debt was in equity and
exclusively there: Brashear vs Cortlandt, (2 Johnson's
Chy. Repts. 401.)

Until the 43d year of George IIL the Chancellor of And in England
England, even m his prerogative capacity, had no au- vear of George
thority to direct the sale of a lunatic's estate for the pay- ^^
ment of his debts; and even since the enactment of a
statute, in that year, giving such power to the Chancellor,
he would not take cognizance of a bill to establish the
indebtedness when it was a question of controversy, or
even reasonable doubt, but always deferred the decision
to a common law tribunal in every case in which the ap-
propriate remedy would have been in such Court had
there been no lunacy: Ex parte M'Dougal, (12 Vezey,
384.

And it is undeniable that, according to the common ^y the common
law, equity has no jurisdiction to assess damages for a iJ7h!^So^riiI
breach of covenant or for a tort, or even to establish a diction to asaess
controverted debt, merely because one of the parties had br&aci of cove*
become a lunatic. Z^/^VJea tS

The law here, as to remedies against Ivnalics, is just ^^gjjj^ *deM
what it was in England prior to the 43d year of George yhcre a innaUc
ni. And, according to that law, Zunacy did not affect ^&w ^remains
ik^ remedial jurisdiction of Courts: Shelf ord on Luna- ^^^'
tics, passim.

As our Legislature has not seen fit to change that law,
we, whose power is only administrative and expository,
must decide that, in this case and in all such cases, a
conrt of equity has no jurisdiction, however eligible or
useful such a jurisdiction might be deemed to be.

Consequently, the decree of the Circuit Court is af-
firmed.

Apperson for plaintiff; Morehead^ Reed for defendant.

310 BEN. MONROE'S REPORTS.

ISbmSlO
oioe 274

2bm310
132 340

Pbt. & Sum. Johnsoii ^s Bank tJ. States.

Case 104. Error to t^e Fayettb Circuit.

Lex loci contractus. Non est factum. Bills of Exchange,

May 4. Chibf Justice BoBERnoN delivered the Opinion of the Court

The case stated. ^o an action by petition and summons, by the Bank

of the United States against Joel Johnson, on a promisso-
ry note for $5,000, purporting to have been drawn by
the said Joel to Richard M. Johnson "or order, negoHor
**ble and payable in the Bank of Washington, District
"of Columbia," and finally endorsed to the plaintiff, the
defendant filed a special plea of non est factum, averring
that the note was drawn and delivered by him to the
said Richard, in the City of Washington, without the
words *'or order'* in it, and that afterwards the said Riek-
ard, without his knowledge or consent, but at the in-
stance of certain officers of the said Bank of the United
States, altered it by interlining those words, and that
before that interlineation, the said note was not nego-
tiable.

The Circuit Judge having sustained a demurrer to that
plea, the principal question presented for revision ie,
whether the faots pleaded constitote a legal bar to (he
action.
The law of the According to the pleft. the city of Washingion was the
trairtdetSSiioM P^*^^® ^^ *^ contract as well a^ of payment, and there-
its legal obi^- fore the local law of the District of Columbia must de-

teimine the legal obligation of the note upon the facts as

averred. And of that law we have no judicial knowV

^dge ; for, although Congress legislates for the Distrid

of Columbia, yet that legislation is altogether local; and

moreover some of Uie ancient laws of Maryland and

Virginia, equally local, are also still in force there.

The mereantUe In the absenoe however, of sufficient proof to the

SSSnd Md^the Contrary, we may presume that the mercantile brandi of

*** U)*th^ l**"*! ^® modem common law of England, and perhi^ the

tiabUityof prom- statute of Anne, as to the negotiability of certain prom-

SPRING TERM 1842. 311

issory DOtes^ were in force in the District of Columbia, JoHwaou
and constitute the law of this case. Bank u. a

Ever since Pigot's case, (Coke) it has been the settled issory notes, pre-

doctrine of the common law that any alteration in a foice in the ni^

deed, whether material or immaterial, if made by one ['^^^ °^ Coium-
party to it without the concurrence or authority of the

other- party, will avoid the deed and sustain a plea of a^/eed^whethS

non est factum: 1st, because the alteration must aflFect ^*{|j|*} •fml'de

the question of identity, and 2d, b€cau3e such an unau- by one party to

. 1 . *. . 1 • .1 . 1 ^ T 1 1^ Without au-

thonzed act of a party havmg the custody of a deed tiiority of the
should be construed most strongly against himself, and ?he*deed7^^'*^**
if legalized, might facilitate injuries and irremediable
frauds.

The same conservative principle has been recognized Same principle
as applicable to bills of exchange and promissory notes, buu^^ of ^el^
In Masters d oL. vs Miller (4ih Term Rep. 320) Kenyon ^"«^
Ch, Jus, and Ashhurst Jm, said that the reason of the
common law as to alterations of deeds by parties thereto,
was equally applicable to mercantile paper, and that it
should even be more strictly applied to such paper, be*
cause, circulating from hand, it should therefore be the
more scrupulously guarded against alteration; and this
seems still to be a leading and authoritative case in
England.

And although in Sanderson et dl, vs Sym&nds (Brod.and
Bmg, 426, and 5 Eflg. Com. Law Rep. 134,) the Court
recognized an exception as to policies of insurance, yet
it clearly intimated that even an immaterial alteration by
a party, might avoid a promissory note or bill of exchange,
according to the settled law of England, as established
first in the case of Masters et al. vs Miller.

The cases in which it has been adjudged in England, The parties to a
that an immeterial alteration of a bill or note does not ^«d» ^o- n»y
lender it illegal and that evena material alteration made take therein and
by all parties for correcting a mistake, will not invalid wm *iiJtende*d to
date 'as a matter of course, bad reference to the stamp ^*
ads, and were decided on thai ground only. The prin*
ciple established by these cases, is, that an immaterial
alteration did not make an essentially new note which
woold be void, without a new stamp, and that even a ma-
terial alteration by aU parties for correcting a mistake.

312 BEN. MONROE'S REPORTS.

JoBMsoM was only making the bill or note what it was originally

Bank u. s. intended and understood to be, and that therefore the cor-

' ' reeled paper was not invalidated by the omission to affix

a new stamp: see Kershaw vs Cox (3 Espin. 246,) and
Knill vs Williams, (10 East. 432.)

But we have seen no adjudged case in which it was
ever decided that an action was maintainable on a bill
or note against the drawdr after even an immaterial al-
' teration by the payer without the drawer's authority. On
the contrary the cases (and especially that of Masters d
al vs Miller, supra) negative the assumption that such
an altered bill or note is, as a bill or note, still obligato-
ry, and they clearly import that if any action be still
maintainable, it must be on an assumpsit implied by the
receipt of a valuable consideration.
The ftAdition of Then, according to the common law and the statute of
tiie words or or- ^fifi^^ as thus expounded and applied, it would not be

pTomi8soi7not^;ill[l^gi|^j^ enquire whether the alledged alteration in

ly ^^. material or immaterial, though under that
eu^ajleration would be deemed material, because
* * ^^^ »aki^«gotiable as bills of exchange, only such
promissbf^ i^tes as are, on their face, made expressly

:'(r9piSI^IPi^SI'*i^^^^^'' ^^^^ ^^ payer or his "order."
A plea averring ^ fiow^w, according to the local law of the District
that the note of CiJWmBia, an immaterial alteration would not have
altered b^ ad- invalidated the note, the plea avers that the nole was not
^ofd^^oi" or- negotiable as executed and delivered to R. M. Johnson,
der," and there- j^^^ ^jjat, therefore, the interlineation of the words "or

oy making it ne- ,

«otiabie, when order'' was a very material alteration, and, not judicially
terSon'^t wm knowing that such was not the effect of the local law, we
SSrtht^consent caunot decide that this averment is not true, and so,
of the drawer, is therefore, admitted to be by the demurrer,

good as -a plea of ^

non est^um. The plea seems, therefore, to be good, unless upon

the face of the note the law might imply an authority to
JB. M. Johnson to make the alteration which was made;
but, without knowing the local law of the case, we cannot
decide whether there could have been any such implied
authority. If the note was, as it purports on its face to
be, a real transaction, there was under the statute of
Anne, (if that were in force in the District of Colum-
bia,) no such implied authority; and it is at least very

SPRING TERM 1842.

313

qaestionable whether the law could have implied any
such authority even if there should be extraneous proof
that the not^ was drawn as an accommodation paper; but
this we cannot now decide for want of a sufficient knowl-
edge of the local law operating on the question.

The plea certainly imports that the alteration was
made without the drawer's authority, and we must take
that to be true until the contrary shall be made to ap-
pear.

It seems to us, therefore, that the facts as pleaded,
constitute a prima facie bar to the action.

But it has been argued that nevertheless we should not
reverse the judgment, because there was a trial on a gen-
eral plea of non est factum filed with the special plea,
and under which general plea every fact averred in the
special plea might have been proved; and that> therefore,
as there is no bill of exceptions showing that the
tiff in error was not permitted on the trial
facts, we cannot decide that the error ii
demurrer was in fact prejudicial.

But, as the Circuit Judge decided, or
ed to have decided, on the demurrer, that
ed in the special plea were insufficient to
we should also presume that those same facl
fore neither offered nor permitted to be proved dTTtlie
general issue.

It is, therefore, considered that the judgment of the Cir-
cuit Court be reversed and the cause remanded with in*
struetions to overrule the demurrer to the special plea of
rum est factum.

Owsley ^ Goodloe for plaintiff; Hickey fof defendants.

COPPAGB

ALE]LAN0£S*8
HBULS.

AlUiongli ft jntf
trial be had on a
general plea of
non 48t factum,
yet if the Court,
on demuner, re-
jected a special
plea which was
good, a new tri^
should be a-
, the pre-
tion being
&cts set
he special
were not
in evi-
or if offeN
cted hf
urt.

Coppage vs Alexander's Heirs.

Error to thA Fayette Circuit.
Devises, Condition, Limitation, Marriage.

^jjUBE EwiKs delivered the Opinion of the Coutt

Robert Alexander made his last will and testament
containing the following devise : ' 'I give mito my beloved

Chancxxy.
Case 106:

Th« case stated.

Vol II.

314

BEN. MONROE'S REPORTS.

COPPA«B

Alexindeb'i

HEIBS.

Matter of Mjcs.
Coppage's cross
bill, and decree
of the Circuit
Court.

A limitation in a
devise to a wid-
ow that she shall
not marry, is not
▼oid, though
there may be no
bequest ^ over.
An .annuity -du-
ring widowhood,
is not against
the policy of the
law.

wi£e, Mary Alexander, the half of ray land I now own
during her toidowhood or life; also, my negro man, Moses,
is to stay with my said wife during her life, and to take
care of her, and is to have, at her death, for his services,
the one fourth part of the half of my land and be set
free; also, to my wife, one bay mare. Pigeon, and one
large sorrel horse; two feather beds and furniture; kitchen
and cupboard ware; one half dozen chairs; three sows;
one boy, David, and one girl, Lindy." He devisedthe
half of his said tract of land, which embraced about one
hundred acres, and upon which he was living and died,
"to his daughter-in-law, Delphia, to be rented out 15 years
for her and her childrens benefit," but made no other
disposition of the remainder in said tract. After be-
queathing to each of his children, six in number, to some
one and to others two small slaves, and some other small
articles of personal property, he died. His widow, after
living on tbe land devised to her a short time, having her
portion allotted to h^r by commissioners, intermarried
with one Rhodem Coppage, and removed from the land,
permitting her children to take possession and enjoy the
same without claim or complaint on her part.

Her last husband, Coppage, died, and to a bill filed by
her children^ the heirs and legatees of lier first husband,
Alexander, against her and others, she filed a cross bill,
setting up claim against them for rents which had accrued
after her second marriage, which the Circuit Court decreed
to her, upon the ground that the devise to her, limiting the
estate to her widowhood, was a condition in restraint of
marriage, and was, therefore, void, there being no devise
over. From this decree she has appealed to this Court.

We are aware that it has been sometimes decided that
a condition in the bequest or devise of a husband, in re-
straint of the second marriage of his widow, is, as in
other cases wh^e there is no devise over, to be constnied
interroram, against flje policy of the law and void: Par-
sons vs Winslow, (6 Mass. Rep. 169;) Marples vs Batn-
bridge, (1 Modem Rep., 590.) Yet it has been fre-
quently said, and we incline to think upon good reason,
that a condition that a widow shall not marry, is not un-
lawful or void, or an annuity during widowhood: Story's

SPRING TERM 1842.

SIS

Eqaihf, 283; 1 Foriblanque's Equity, 210, note; Rich
ards vs Baker el al. (2 Atkins, 320;) Scott vs Taylor (2
Bacon's Chy. Rep. 488;) 1 Roper on Legacies, chap. 13.
So far from its being bad policy to restrict the second
marriage of a widow, in many instances, it would seem
to be the best of policy and redound most to the public
interest. When she has children to raise and educate, it'
would, in the general, seem most consonant to good poll-'
cy and sound morals for her to devote herself to their^
superintendence, care, morral culture and education,'
than to leave them to their fate, placing herself under'
the government and control of a second husband. More-
over, the first husband, without intending to impose any^
undue restraint upon the second marriage of his wife, '
might feel it proper, and for the best of reasons, to make
a more liberal provision for her while she remained a wid-
ow aiid dependent upon her own exertions for support,
than after she placed herself under the protection of an-
other husband, and was entitled to his aid and comfort.
And by way of accomplishing this beneficent object, may,
as in the case now before the Court, make a portion of
the estate left to her, cease with her marriage and de<
scend to his children. Besides, the widow in this State,
if she is not satisfied with the provision made for her by
her husband, or the restrictions imposed upon her or en-
grafted upon the estate left her, may renounce the provis-
ions made for her by his will, and betake herself to the
provision which the law secures to hen The reason,
therefore, for construing a condition in restraint of her
' second marriage void, does not exist with so much force as
when a devise, with such condition, is made to another.
Instead of the widow, in this case, renouncing the provis-
ions of the will, a paper is exhibited showing that she
renounced her legal provision and ^agreed to abide by the
will as it was made. Besides, it would seem that tha
same policy or reason does not exist, against a restriction
of a second or third marriage, as against a first, or against
the exercise of the right to marry at all. Nor do such >
marriages, especially when there are children by the first
marriage, generally turn out so well for the interest of
the parties or the public.

COPPAftI
V8

Alsxakdbr'i

HB1R8.

3J6 BEN. MONROE'S REPORTS.

CoppAOB Bat waiving the question just mooted, a^ to the efiect

alsxandbb's of a condition clearly expressed, restricting the marriage

BEUtS.

^ of a widow, as unnecessary now to be determined, we

A devise to a are clearly of opinion, looking at the whole contents of

Ssbandj^SuriSg ^^ ^^^^> ^?^ ^® devise to his wife during widowhood or

hood *iBal?miteI ^^^^* ^^ intended by the testator, and should be con.

ition ' expreBsiTe strued, as a limitation expressive of the duration of the

of the duration of . . j. j... ^ , .-

the estate, and estate, and not as a condition subsequent or prior: I
5?wedent°^*'M Rop^ on Legocics. chap. 13, 558, 526, etseq.; Richards
subseqaeat vs Baker ^ 2 Atk. 321. The testator having made a lib-
eral provision for his wife, in slaves and other property,
according to his circumstances, and vested the same in
her absolutely, he leaves to her in addition, the one half
of his little farm as a home in effect, during her life if she
remained a widow,, or during her widowhood only, in
case she married. The happening of either event was
intended to terminate the estate. It was intended as a
benefit durante viduitate and no longer. The estate is
not vested for life, to be forfeited if she married, but is
vested during her widowhood only, in the event of her
marriage, and must cease with the termination of her
widowhood, as one of the periods to which it was limited,
and upon the accrual of which it was made to expire:
Vance and wife vs QampbelVs heirs, (1 Dana^ 230.)
With the marriage of the widow her estate in the land
having terminated, she had no further right to the r^ts
or profits. But if this question was doubtful, after sur-
rendering the possession to the heirs, and permitting
them to occupy and use the same, without a claim or
complaint on her part, it would seem that she ought not
afterwards to be permitted to charge them with rents.

The decree of the Circuit Court is reversed and cause
remanded, that her cross bill may be dismissed.

Owsley Sf Goodbe for plaintiff; Robinson ^ Johnson,
and Pindell, for defendants.

SPRING TERM 1842. 317

The case stated.

Haggin VS Haggin. Chancery

Ebbor to thb Fayette Circuit. q^^ 106.

Jurisdiction, Trusts and traslees. Parliiion. Costs.

CusF Jrancs Bobs&tsok delivered the Opinion of the Couit jH^y 6.

Some time prior to the year 1815, John Haggin, elaim-
ing as a grantee of the Commonwealth of Virginia, 400
acnes of land in Fayette county, obtained a judgment in
ejectment against one Orsborne, who bad settled thereon
under a grant to one Shannon, That judgment was en^
joined » but the injunction was finally dissolved; and the
demise, as laid in the declaration in ejectment, having
expired before the dissolution of the injunction, the pos-
session was still withheld from Haggin, who, shortly
afterwards, to-wit: in the year 1815f took possession of a
part of the land, by his son and agent, Samuel Haggin^
against whom one Christian, also claiming or pretend-
ing to hold under Shannon, obtained a judgment of res-
titution, to some indefinite extent, on a warrant foi a for-
cible entry; which judgment was enjoined by John Hag*
gin; but that injunction also was dissolved, and shortly
afterwards, in June, 1822, Christian agreed with Jamea
B^ggin» another son of the said John, to sell and sur-
render his possession for $300, which being paid by the
said Samttdt Christian relinquished and surrendered to
him, by a formal conveyance, acknowledged and recorded
in the year 1823.

In the mean time other occupants, claiming adversely
to John Hoggin, bad surrendered to the said Samuel, as
his agent, under compromises, the price of which was, as
may be inferred, paid by the said John, who, in May,
1822, published his last will, in which, among other
things, he devised to the said Samud 100 acres of the
said land, bj a general designation of boundiary, inclu-
ding, as we presiitme, his actual residence, and also 20
acres of woodland, to be laid off in convenient £pirm>
and to his daughter, Nancy, the residue of his tract, as
claimed under his patent. By a codicil, published in

318 BEN. MONROE'S REPORTS.

Hagoih November, 1822, the testator directed that, if, after al-
Hagoin. lotting 120 acres to Samuel, there should remain more
than 150 acres, the surplus should be sold and the pro-
ceeds distributed among certain residuary devisees.

John Haggin having died in the year 1825, Samud
refused to make partition, and claimed the ivhole of the
land as his own, independently of the will.

In 1826 this suit in chancery was instituted by Nancy
Haggin, 'for enforcing the will and obtaining partition
among the devisees of the land, and also for rents.
Decree of Oie -^.11 proper parties having been brought before the
Circuit Court Qouit, a final decree for partition and for rents was ren-
dered in 1841, whereby 120 acres, according to the will,
were allotted to Samuel^ 150 acres to Nancy, and a re-
sidual portion of 50 acres to the use of the other devi-
sees, and Samuel was lequired to pay to Nancy $2730,
and to the residuary devisees $541 71, for the use, ever
since the testator's death, of the lands allotted to them
respectively.

Samuel Haggin now seeks the reversal of that decree
on various grounds : 1, an alledged want of jurisdiction;
2, because, as argued, he is entitled to more than 120
acres; 3, exorbitance in the decree for rents; and, 4,
the omission by the Court to direct an assessment of the
value of ameliorations.

These general objections to the decree will be briefly
considered in their numerical order.

The Chancellor ^- "^^^ ^^^^ ^^^^ ^^ ^^^'^^ ^^^ ^^^^ ^^^ ^^^^ Somud

has jurisdicUon claims the whole of the land without showing such a
tion between de- semblance of right thereto as would authorize serious
I?IS?e traclof doubt as to its validity, and, therefore, might deserve a
ih*^' titi^^"^** ^^^^^ ^^ * different /ortim, cannot oust a court of equity of
be legal concurrent jurisdiction to make partition. There is, in

fact, no question of legal title deserving grave considera-
tion. SamueVs tenancy during his father's life operates
as an estoppel ; and besides, he has not shown that, had
there been no such estoppel, he had acquined, otherwise
than under the will, any available right to any portion of
the land. There is no proof even that Christian had any
title to any part of the land. .

SPRING TERM 1842. 319

But moreover, as it is evident that Samuel entered and Hagqih

held, daring his father's life, under his title and in trust HAeeiN.
for him, that fiducial relation and tenure alone would be IT IT ~

, , J . . ,. ,. - The Chancellor

sufficient to give undoubted jurisdiction to a court of has juiLBdiction
equity to compel restitution and partition according to his IStion^of an^csl

father's will. S^'thf d'jihe^i'

2. As already suggested, there is no proof that Samuel of the ceatiu que
had ever acquired or should be permitted to claim any

title adverse to that of his father. Christian's relinquish- p^fd^'a %um' ol*

ment is not shown to have transferred any thing but pos- money for the

J ,, . c J. 'A . ^ • possession of

session; and there is no proof as to its extent; nor is one who held a
there any intimation or other ground for presuming that Sa?t o?Se land
it was not altogether within the boundary of the 120 acres J^id in trust, af-

1. 1 Til J a 71. II. tcrwards becom-

as devised and allotted to Samuel himself. ing devisee of

The will evidently intended to devise to Nancy and the fhliuot \e"ai-
residuary devisees, all the land which could be held with- ™^Uiing m"^
in the testator's patent, after deducting the portion of «amst the devi-
120 acres devised to Samuel, And it is intrinsically prob- dor, without
able that when the will was first published, the testator pos8M3io^,*th^«
did not consider Christian's possessi<:)n as available or J^"Jde"^1)e^o?d
even formidable as an adversary right. But, before the the part devised
republication by the codicil, the testator knew that his son
and attorney, James, had bought Christian's interest,
whatever it was; and nevertheless, he still seems to have
intended only 120 acres for Samuel, and all the residue
held under his patei^t, for Nancy and the residuary devi-
sees, restricting her, for the first time, to 150 acres.
There could be no ground for any other deduction, unless
there had been cause for presuming that Christian' selsiim
was superior to the title of the testator, or was so con-
sidered by him^ — and there is certainly no such proof, nor
auy ground for such presumption. Moreover, if he had
intended not to embrace in his will the land claimed by
Christian, he would not probably have supposed that
even as much as 150 acres would have remained for
Nancy, after deducting 120 acres devised to Samuel and
also so much in addition thereto as Christian claimed or
held.

We do not doubt, therefore, that SamueVs only availa-
ble or plausible title is that of devisee to the extent of
120 acres.

320 BEN. MONROE'S REPORTS.

HAOfliM Nor has he ever shown that he is entitled to restitation

HAGeiN. of the $300 paid by him to Christian, because it neither

appears that he obtained from Christian any thing more

than his possession, nor that that possession was else-

'> where than within the limits of the 120 devised to him*

self. And moreover, there is reason for inferring that

the testator contemplated the payment to Christian as

enuring to the security and consideration of the devise of

120 acres.

A trustee having 3. Holding the land, as Samuel has done, under an

the possession of implied trust, though in fact in invilum, he is certainly

an entiie tract of ' Jt - i t» i» ^

land, and being liable in this suit for the value of the use of so much as
STrt^ therecTff ia did not belong to him. And by protracting, for 17 years,
deviscM^or^he ^^® litigation, commenced only about one year after the
H^® and occupa- cause of suit accrued, he cannot curtail his equitable re-
due not devised sponsibility for rents, (to be decreed in the same suit)
^t^^^'curtofi ^hS within the limits of five years immediately preceding the
Bi^fiit^toX^pS- decree, or within a shorter period than that which has
xiod of five years elapsed siu CO the will took effect, by his father's death,

Df fore dfiCTCfi DV

protracting a liti- and duiing all which time he has enjoyed, and wrongful*

li^rn^wh^l ly withheld the whole profits.

was commenced jjor can WO say Certainly, that upon the proofs exhib-

iinthm one year ^ ' *^ *

after the rights ited as to the valuo of the use, the decree for rents is ua-
Accrue reasonable or unjust. The Circuit Court seems to have

adopted the minimum estimate, and that is $2 an acre
for the arable and 35 cents for the woodland. And the
facts, as proved, do not clearly show that the annual value
was less, even to Samuel himself. But, having occupied
the land successively for many years, occasional repairs
and improvements may be presumed to have been inter-
mediately made by him ; and this consideration seems
not to have been regarded or noticed by the witnesses in
their estimate of the profits, and who all appear, more^
over, to have looked to the annual value for each single
year, rather than to the aggregate for a long term of years,
subject to all incidental deterioration and expense. We
should doubt, therefore, whether the estimate of the rents
may not be rather higher than, under all the circumstan-
ces, it should be.

Trustee Should ®"^ ** ^^^ *®®°^ ^ "* *^** ^^^ interlocutory decree
be aUowed for ought to have directed an inquiry and report, as to ameli-

SPRING TERM 1842. 321

orations which may have been added by S. Haggin, and Bobiwbok
to be deducted from the rents. It does not very clearly Stbtvabt ako

appear that there are such ameliorations; though it may /*"|^ —

be reasonably inferred from the testimony, that, to some hSde^'heid^ ^
extent, there may be; and consequently, as the commis- he^waa^norsnbt
eipner appointed to ascertain rents and waste, was not Bequentiyt^ de-
directed or even authorized to inquire also as to amelio- '
rations ; and as, moreover, the inquiry and report as to
the rents, have not been precisely such as they ought to
have been, to assure justice and give perfect satisfaction
to the Court, the decree, as to rents, is reversed, and the
cause, as to that matter, remanded for another inquiry and
report, as to rents, waste, and ameliorations, according
to this opinion. But the decree, as to the partition and
restitution of possession is affirmed ; and there being a
reversal and an affirmance in favor of each party, there
will be no decree in this Court for costs to either of them.
Robinson c^ Johnson for plaintiff; 8. Daviess and
Owsley 4r Goodlot for defendant.

Robertson vs Stewart & Spring. Chancery.

Erbob to thb LoviBViLLB Chancekv Court, CcLse 107.

Estoppd. Equity and equitablt jurisdiction.

IvDes fiwxiia deUTeted the Opinioaof the ConrL Jjiay 6.

Stbwart & SpBiif G, upon a judgment and return of The case auted.
execution ''no property found" against Bate & Rooney,
filed their bill against Bate & Robertson, (Rooney hav-
iBg died) to reach funds in the hands of Robertson;
Slocumb having also a judgment against Bate and like
return, afterwards filed his bill against the same defen-
dants. A decree was rendered in favor of Stewart &
Spring against Robertson, requiring him to pay to them
the amount of theit debt. Robertson has brought the
case to this Court and asks a reversal on the ground that
a prior Ken, attached in favor of Slocumb on his bill and
proceedings which have not yet been disposed of in the
Court below, and which were exhibited or referred to

ui his answer to Stewart and Spring's bill, and therefore
VoLIL 41

332

BEN. MONROE'S REPORTS.

JKOBBSnOB
CnWABT AND

Spbing.

a decree should not have been rendered against him in
favor of the complainants, as he may be subjected to a
double charge.

Stewart & Spring's original bill prays a discovery
from Bate, and that his chose discovered may be subject-
ed to the payment of their debt. This bill was filed
first, and the process executed first on Robertson & Bate.
Bate answers, and in response to the call upon him for a
discovery, exhibits a note upon Robertson, his co-defen-
dant, for $1694 96, and the note is filed in the papers
of this suit.

Slocumb, after the complainant's bill was filed, and
after piocess was executed upon it, filed his bill alledging
against Robertson a specific liability to pay the debts of
Bate &; Rooney, and in which bill there is thrown in, as
a general charge,- the allegation that Robertson is other-
wise indebted to Bate, in a sum more than sufficient to
pay the debt of Slocumb, without any designation of the
character of the debt, when or how it accrued, or was se.
cured or fell due. This general charge, thus thrown in,
operates in the nature of a prayer for discovery against
Robertson & Bate, and cannot be made to attach to one
liability more than another until after answer and discov-
ery. Robertson answers, as he answered the bill of
Stewart & Spring, denying the specific charge of liabil-
ity, but cautiously avoiding a discovery of his individual
indebtedness to Bate. Bate answers, after he answered
the bill of Stewart & Spring, in which he developes an
indebtedness of Robertson to him of $9500, a part of
which had been settled with him, so that in March, 1838,
long after both bills had been filed, there was a balance
due him of $6694 96, for which two notes were execu-
ted, one for S1694 96, which he had exhibited in Answer
to Stewart & Spring's bill, to be applied in part to the
satisfaction of their claim, and the balance of the note
he conseijits may be applied towards satisfying Slocumb's
demand, the amount falling short only a few hundred
dollars of satisfying both demands. The other note was
foi $5000, and which he transferred to one Tompkins to
be applied to the satisfaction of the claims of other cred-
itors.

SPRING TERM 1842.

323

Placing out of- question the amended bill of Stewart
Sl Spring, in which aftef the answer of Bate exhibiting
the note of $1694 96, they proceed specifically for the
payment of their demand out of it; we think Robertson
has no right to complain of the decree against him — he
"was a party to the suit, was apprised of the discovery
sought from Bate, yet cautiously concealed, in his an-
swer, his individual indebtedness to Bate, which was a
fund sought to be subjected to the payment of Stewart
& Spring s demand, and of which he must have been
apprised by the prayer for discovery and relief out of the
fund so discovered. Though it were conceded that a
payment made to Bate by one who was not a party to
the suit, might not be overhauled or effected, yet Rob-
ertson, who was a party, ought not to be allowed to make
payment to Bate, his co-defendant, nor to do any other
act in conjunction with him or otherwise, during the
pendency of the suit, to evade the effect of the decree
upon assets, sought by the discovery to be reached and
subjected to the complainant's demand; and if he ap-
prehended danger of a double liability he might have
guarded against it by a bill or cross bill of interpleader.

Besides, if a lien attached in favor of Slocumb by the
general chaige of indebtedness in his bill, on the debt
evidenced by the note in question, it also attached on
the debt of $5000, secured by the note assigned to
Tompkins, also on that portion of the debt of $9500
-which was paid by Robertson to Bate, if the payment
iMras not made before the service of process on him.
And either of those demands may be as well subjected
to the payment of Slocumb's demand as the note sur-
rendered up by Bate, and the more so as the surrender
i^as made under the coercive action of the Court, and in
response to a bill of discovery which was filed, and pro-
cess served, before the institution of Slocumb's suit.

Decree affirmed with costs, &c.

GtUhrie for plaintiff; Loughborough for defendants.

BoBIBTflOK

SrsWAST AV9

Spiung.

One sued ia
chancery by two
distinct credit-
ors of a third
ferson, to ba
made subject to
payoutthelunda
of Uie latter in
his hands, can-
not gainsay a de«
ciee in behalf of
hfi^who files the
nrst bill and haa
process serred^
because the de-
fendant did not
make so faU a
disclosure as ho
did in answer to
the second bill. .

The filing a bill
in chancery and
service of pro-
cess against a
defendant to sub-

i'ect funds in his
lands to the sat-
isiaction of a
jjudgment cred-
itor, creates a
lien on such fund
from the service
of process, and
makes the de-
fendant liable.

324 BEN. MONROE'S REPORTS.

lu"^, "^^^ CASB. Rogers vs Rogers.

1 118 3271 Case 108. Error to the Fayette Circuit.

Ii38^°l85 * WiUs. Continuance. Witness. Evidence, Instructijon.

May 7. Chief Jvsticb Robertson deliveied the Opinion of the Conrt

The case Htsted On a bill filed by some of the heirs of James Rogers,
and points made, ^^^y^ f^, contesting the validity of a document which

* had been admitted to record in the Fayette County
Court, as his last toill, the jury, under the statutory is-
sue devesavit vel non, found that it was his valid wiU,
and a decree was rendered accordingly.

That decree is now sought to be reversed on three

grounds, which will be considered in the order in which

they have been urged in this Court.

On the trial of 1. An application for a continuance on account of the

an issue in a suit absence of a material witness was overruled by the Cir-

in chancenr oi , •'

dnedavUveinon, coit Judge, who postponed the trial until the deposition
overruled the of the absentee, who was sick, had been taken, and

S^fo'^a ^^^' ^^^^^ ^*^ ^^^^ *^ ^^^ J"^' ^^^^ ^^^^^^^ ^^ complained
tinuance on the of as erroneous and prejudicial ; but it seems to us tiiat

ground of the r j »

Bicknefls and it cannot be so considered — neither the character of the
wUness^ to at^ deposition nor any other fact in the record would author-
dk5posi*t?on^'*^e ^® ^^^ presumption that his sickness, in any degreee.
Court gave the affected the testimony of the witness, or that his depo-

paity time to . . ^ r i a ^i. ^ • -^ !_• i

uke, and which sition wsLs not as useful to the party using it as his oral
iSd iiftiw ewe) examination in Court could have been. We are of the
Teversir^M^u op'^^^*^» therefore, that there was no available error in
does not appear the refusal to grant a continuance, and especially in such
esition was ^as a casc, in which the personal attendance of all the wit-
ty^aa ^is^^orai ^^©sses at the Same time could not have been reasonably
haifebeen''^**^^ expected, and in which also, a trial without delay was

peculiarly important.
2. The jury was instructed that there was no evidence

of either fraud or improper influence on the testator; and

this also is assigned for error.
It cannot often be prudent thus to control the jury as to

dentforSSTco^t ®"^^ ^^^^ ^^ ^^^^^ ^"^ sinister influence in the procure-
to instruct Uie ment of a will. But whether there was any evidence of

SPRING TERM 1842. 325

either of these facts in this case, was a question which Boobu
the Judge had a legal right to decide ; and we are of the Botms.
opinion that there was no evidence which could have au- jury, that them
thorized a rational and unprejudiced jury even to suspect ^^audl^i^^
that the will had been procured by any unlawful or im- ^ influence m
proper influence. Consequently the instruction should but the circuit
not be deemed prejudicial, even though it bad not been legii Tight bo^i^
technically proper or most prudent. deci^fontu^ta^^.

3. The only remaining and most formidable objection edin Uuscaae.
to the decree is, that the Circuit Judge refused to permit
proof of conversations with the principal devisee, in one
of which he expressed to the witness a desire to own his
lather's homestead, which was afterwards devised to him,
and in another of which, he showed the same witness the
controverted will, and sought his advice as to its legal
ibnnality, and, upon being told that it might be prudent
to consult a lawyer and have another will executed, he
Bepiied, "we have had too much trouble and difficulty in
^'getting this will to attempt getting another."

The Circuit Judge seems to have been of the opinion xh^ declaration

that no declaration made by one of several devisees, SL?"® ^^■•^•'^

^omd be competent evidence against the will. In this, deoce against a

2iowever, we do not concur with him. We still approve bieeyidencelnot

«he principle recognized on this subject in the case of JJ ^dmiwSB* by

McaWs wiU, (1 Ben. Man. 399.) 1st. Because all the «^»»>ut)8iia cir^

■a ' I ... . «. cumPtanc© enti-.

cieTisees have a common mterest m every question anect- tied to some in^
i ng the validity of the will ; and, 2ndly, Because no one whlch^the* trib^
of them, being a party, could be compelled to testify queatlSa"^ vin
against it. And we are well satisfied that principle and oi nowm, should:
Analogy, as well as authority, sustain the qualified doc- under all the cir-
trine raled in the case, supra, in Ben. iWon.— that is, STc'tee^M suc^f
thata declaration of one of several devisees or legatees, JJi*^' intrinsic
as to a fact material to the validity of the will, and against
his own interest, is admissible, not as a declaration or
admission by all, but as a circumstance entitled to some
influence, and to which the tribunal trying the question
of will or no will, should give such effect as, under all
the circumstances of the case, such a fact should intrin-
sically merit.

The same principle, and even to a more unqualified The mie of eTi-
ex/^nt, has been recognized in England in many cases, ^ the s^bslon

326 BEN. MONROE'S REPORTS.

BooBSfl and especially ia those of Parish settlements, in which

RooBBs. it has been decided that a confession of a material fact

of DariBhioDers by one parishioner is admissible as evidence against the

andPeM.*decis- whole of the parishioners, because, though their interest*

^"•- are seveial, yet the question involved is common to all,

and no one of them could be compelled to testify against
himself and associates: (11 East, 589.) And the So-
preme Courts of Massachusetts and Pennsylvania have
virtually applied the same rule in will cases, v^ith the
qualification that the expiession of opinion merely, bf
one devisee, is not competent.

Being satisfied with the doctrine, as ruled in Bm. Motl
roe, we are not disposed to elaborate a discussion of it
We aie, therefore, of the opinion that, as the facts offer-
ed and rejected in this case might have conduced, in
some degree, to evince undue influence in the procure-
ment of the will, the Circuit Judge erred in not admitting
the proof of them as tendered.

But, nevertheless, upon mature consideration, we have
not rerene tho' come to the conclusion that this error should not be
been commUted ^®®"™®^ injurious, and is, therefore, insufficient for levers.
hf the Circuit ing the decree.

ing" ^vi'denee When all the facts are reviewed, it is evident that, in
wbierinieM^he consequence of the testator's physical prostration and the
party waaproba- eminent danger of his speedy dissolution, there hadbe&i
exclusion, and much difficulty and trouble in the proper and eflfectoal
SLu'iVhSv^^sct publication of his will, and which might have been rea-
V^^Stte^%l\ecM ^^^^^^y apprehended again in an attempt at a republics
tMtitnony had tion. The principal devisee's equivocal declaration as to
the Ferdict dif- that matter, therefore, would have been very remote aod
^^^^^' questionable evidence of coercion, fraud, or improper in-

fluence in procuring the publication. And the other facts
proposed to be proved, would have been entitled to
scarcely any effect, if any at all, as evidence of even im.
portunity to make the will. But importunity alone would
not invalidate.

When, however, we consider the evidence, as to the
testator's capacity and fixed determination, under all cb-
cumstances, both sometime before and even after the
publication, the facts characterizing that publication, and
the destitution of any circumstances, (independently of

SPRING TERM 1842.

the rejected facts, ) which could tend to the deduction
that the will was not, in every proper sense, altogether the
spontaneous and well considered production of his own
mind, we cannot doubt that, had the rejected testimony
been admitted, it would not have changed the finding of
the jury; and, upon a deliberate survey of all the facts
in all their bearings, we are clearly of the opinion that, if
the rejected evidence had been admitted and the jury had
decided against the will, it would have been the duty of
the Court to set aside the verdict as unauthorized by any
rational or allowable deduction from the whole evidence,
dispassionately and intelligently considered. Then, as
justice seems to have been done, and no other verdict
than that rendered would have been allowable, it would,
in our judgment, be an abuse of judicial discretion, to
reverse the decree and direct a new trial of the issue,
merely because there was aki abstract error in rejecting
testimony which should not have produced any other
result.

Wherefore, the decree is afSrmed.

Robinson (^ Johnson for plaintiff; Clay and Wicldiffe
for defendant.

327

Gakabsant

Vadghn.

Garabrant vs Vaughn. Dbthtub-

Erboh to the Jeffersoit Circuit. Case 109*

Estrays, Pleading. Lien.

'vMB Ewma delivered the Opiiilon of the Court Jloy 7.

This is an action of detinue instituted by 'Garabrant ^^ ^^^ g^i^
agiinst Vaughn for a horse. Vaughn pleaded that said S?*(i?^wS^Jj[
liorse had strayed away from his owner, and he had taken
him up and posted him as a stray and paid all fees and
barges, setting forth facts in his plea showing his quali-
fitation to take up, and that he had been rightly and le-
S^ly taken up, valued and posted, and that Uie plaintiff
had refused to pay the legal fees and charges for taking
ttp. and reasonable charges for keeping the horse. The
plaintiff demurred to this plea, which was overruled by

328 BEN. MONROE'S REPORTS.

^Teto*^^ * *^® Court, and standing by his demurrer he has brought

-98 the case to this Court.

AHTLET ^^ think the demurrer was properly overruled. The

The taker up of steps required by the statute to be laken by the taker up
iicn?ii'?^e prop* of an estray, and for the benefit of the owner, and in
anI^7eMoaabie ^^^^S ^^^"^ ^^® taker up is legally subjected to costs
costa and char- and charges, and is entitled to a fixed fee for his trouble
and cannot be as wcU as to all reasonable charges. He has a ri^t to
possession until ^^^0 these costs and charges refunded and paid to him,
«uch aie paid, anj jg ^qj bound to surrender the possession of the prop-
erty taken up until they are paid, nor has the owner a
right to ;the possession until they are paid. The taker up
has as much right to a lien upon the horse, for their re-
payment, as the tavern keeper has upon the horse com-
mitted to his care and keeping. The services of each
are for the benefit of the owner; each are legally subject-
ed to charges, and each are legally bound to feed and take
proper care of the horse.

Judgment affirmed, with costs.

Loughborough for iplniniiS ; Duncan (or defendant

Trover. Richardson & Letcher vs Bartley et d.

Code 110. AppBij. from thb Grsebtdp Cibcuit.

Execution. Delivery bond. Sheriff, Lien.

May 7, Judab Ewino delivered the Opinion of the Court-^lhe Chief Joitice did

not ait in this case.

The case «tated, TwBNTT-Two executions issucd from the Clerk's oiBee
SEfcS^Sfurt of the Greenup Circuit Court, on recognizances having

the force of replevin bonds, in favoi of different elecli^
ofs against John and David Trimble and John T. Wood-
row, indorsed ''no security of any kind to betaken,"
and were placed in the hands of R. M. Briggs, D. S. te
James Bartley, Sheriff of Greenup county, in October,
1639, returnable to the Decend[)ef rules following. TbeM
ezecutioAs, while ia full force, were all levied on the real
and persoAal estate of John and David Trimble, ud
John T. Woodrow, on the i2th December, and the per
sonal estate left in their custody. On the 23d December

SPRING TERM 1842. S29

the deputy took from them bonds with security, in the BKaARBsow &
form of forthcoming bonds, for the delivery of the prop- w

erty on the day of sale. The deputy returned the execu- ^^"^ ^
tions to the office with a return that ho had levied them,
and a specification of the property levied on attached,
"all of which remained in his hands unsold," upon
which twenty-two writs of venditioni exponas issued on
the 9th January, 1840, by virtue of which the defen-
dants, the Sheriff and his deputies, took, possession of the
property levied on, and sold the same in satisfaction of
the executions. David and John Trimble after the levy,
to-wit, on the 30th December, 1839, transferred to
Richardson & Letcher, as trustees for themselves and
other creditors, the whole of the property levied on, and
they instituted this action, it being an action of trover
and conversion, for the personal property so levied on
and sold, and having failed in the Court below have ap-
pealed to this Court.

They insist, that by leaving the property in the hands tSraundsTeiiet
of the defendants in the executions and taking the bonds, ^" ^^ »▼©"«-
it was released from the levy, and was lawfully transfer-
red to them, and that or any other property of the defen-
dants could not be taken and sold, except upon new ex-
ecutions issuing on the forthcoming bonds or the recog-
nizances; and this presents the main question for the
consideration of this Court.

We may concede that when an officer may lawfuUy Wherever a
iakt a sialutory forthcoming bond, that by taking the ^JJ^keaSrfe
same the property is discharged from the levy, and if not oomingi»nd.ejid
delivered cannot be retaken by the officer, except upon erty levied onU
new process issuing upon the forthcoming bond, because ol^tbe retak-
this is the mode provided by the statute for making the Se^i^2S^*''oa
debt, and no other perhaps can be rightfully pursued, gie forthcominf
And in such a state of case, the bond being forfeited,
&c. the defendants and their sureties being both liable
to the new process, might perhaps be at liberty to dis*
pose of the property levied on as well as any other prop,
erty, at any time before the new execution was placed in
the hands of the officer. But if this be true, which is ^^vh^^ aa «se-
not necessary now to be decided, and which we do not ««^ *• ,«^
decide, the executions being endorsed *'that no security Mcaritj of any
Vol IL 42

330 BEN. MONROE'S REPORTS.

BicBABDiOH &. Qf any kind is to be taken/* the officer had no right to
v8 take a statutory bond, and if taken, it could not be re-

ARTLEY turned and made the basis of an execution. If taken in

ken" the offi- such a case it could only be taken for his own indemnity
to^takeTde^v- ^^^ treated as a common law bond, for which purpose
ery bond, and if he insisls it was taken in this case. To allow it to be

taken it cannot

be made the ba- treated as a Statutory bond, notwithstanding the indorse-
118^0 an execu- ^^^^^ would be to lay down a rule by which there might

be no end to the execution, as the indorsement required to
be made on an execution issuing on a forthcoming bond,
is precisely the same as that required to be indorsed on
an execution issuing on a recognizance or replevin bond;
and if, in the latter case, he might take a statutory forth-
coming bond upon which a new execution must issue,
so he might, notwithstanding the indoisement, take a
new bond from time to time in the former case, and
upon which new process must be issued.
The uthaec. of The 14th sec. of the act of 1828, Stat. Laws, 1st, 641,
Bu^^Lawlm\ which provides for taking forthcoming bonds, looks to the
eonatrued. prior provisions of the statute, and was intended to pro-

vide for such bonds on executions issuing on original
judgments only, such executions having been provided
for in the previous sections, and must be so construed
to make it stand consistently with the subsequent and
16th dec. vi^hich authorizes a replevin, and provides for
an indorsement on the execution that "no security of
any kind is to be taken."
Alio the statute Nor do we find any thing in the previous statutes on
^r^isgi, staL ^|g subject to lead us to a diflferent conclusion as to the

effect of the indorsement required in this act. The pro-
visions of the statute of 1821, 1 Dig. of the Stat, 608,
were intended to coerce from the creditor an indorse-
ment upon his execution, that Commonwealth's paper
would be received, and were temporary in their opera,
lion, and were not made to apply to any case where the
required indorsement for paper was made; they aresu.
perseded by the statute of 1828, which required no such
indorsement upon subsequent judgments, or on execa-
lions issuing under its provisions as well as by the ter-
mination of the charter of the Commonwealth's Bank

SPRING TERM 1842. 33t

and a withdrawal of its paper from circulation, and an Bxchajujiok &
entire change in the policv of the country. vs

But in cases where the indorsement is made as well ^^'^ *^ ^:
as any other, we cannot doubt that the officer may, at a Sheriff havinr
his own wish, entrust the care and keeping of the prop- "^i^g HMper-
crty levied on to others, and if he chooses to risk it he fonai P«>p«rtf, '
may entrust it to the defendants in the execution — in special propertr,
cither case they are his mere bailees ^nd keepers of the Su^^ihe^^Si
property, and their possession is his possession: Bl, toany^Kent'^
Com, 2, 396; 2 Saund, 47 a note, &c. He has by virtue my aciect, the
of the levy a special properly in the goods, by reason of exeouiion "* at
his responsibility to the plaintiflF for their value, and may OT*an"i«S?e iKmd
sue for them in trespass or trover: 2 Saund. 46, WUber- ft>' i<j faithful
ham vs Snow, and the notes. His taking a bond for his tbepoiseMionof
own indemnity cannot render his condition worse, or J^SiiSion,"^
change his relation to his bailees or his rights over the ?• "J*y reamna

^ ® It at pjeaaaret

property. If he have a special property in the goods ud the bond rs
and may sue for them, he may also, with or without a ^J^ tSamaaa
venditioni exponas, take possession and sell them with- ^^^ **^
out being subject to an action.

It is said in 2 Saund. 47, note c, founded upon the
case of Blades vs Arundle, \ M, if S.IW, that a Sher-
iff must continue in possession of goods levied on in or-
der to maintain an action against a person taking them.
If this were true, to the full extent, the possession of his
mere naked bailees, with whom he has placed the prop-
erty for safe keeping, must be regarded as his possession,
so far as to authorize the action at least against a wrong
doer, and it would be against his bailees upon the bail-
ment. But the case referred to does not sustain the prin-
ciple assumed, or in any wise impair the officer's right of
action in the case before the Court. In that case the
officer seized a table in the name of all the goods in the
house and locked up his warrant in the table drawer and
left the house, it was held that the possession was aban-
doned by the Sheriff, and that no action layby him against
the landlord, who afterwards distrained the goods. Then
the possession of the goods was regarded as abandoned,
and the circumstances were such as to have well justified
that conclusion. But here the officer, so far from aban-
doning the possession of the goods, has committed their

33S . BEN. MONROE'S REPORTS.

^iomj^95(fv & safe keeping to others, not only under a promise to have
V9 them forthcoming at the sale, but with a bond with sure-

tees to do so.

• To determine that his acts in this case amounted to an
abandonment of the possession, or operated to release ibe
property from the levy, would be to give that construc-
tion to his acts which is contradicted by the character of
the arrangement and the manifest object and intention of
the parties.

Sut if it were conceded that the officer could not
inaintain an action for the goodsr it does not follow that
he would be subject to an action, and especially the ac-
tion of trover and conversion, for feaceably seizing the
f goods, they still remaining in the hands of his bailees^

and selling .them in satisfaction of the executions levied
on them»
thdri^tfoUtmp '^^^ rightful owner of property may retake wherever
** t^r^S ^® ^^ ^^ ^^' provided he can regain the possession
poflsessionof hi« without forco or terror: (3 Black. 4.) If so, it would
•r^fcanfiadlit* seem that the sheriff, who is responsible to the plaintiff

SS^^'w ^J^fthoS ^^^ ^^^ f"^l v*l«i® ^f *be goods levied on, and has acquir-
force or t?rro'r" ed, by the levy, a special property in the goods, should
Tirtue of his'spe- have the right to retake the goods wherever he might find
SSle^d^^by^^fhe them, provided he can do so without force or terror, for
wScoSff *^c[ ^^^ purpose of selling them and applying the proceeds as
sell properw contemplated by the levy. If so, much more may he

jevied on, and , * /. i i .i i % . ,

especiaUy from retake them from the bailees to whom he entrusted them,
Ms ^°*b^eesf ^r the same objects, and especially if he can do so with-
placed ^^iheraT ^^^ i^^^^- ^i^d the jforce and wrong in taking, if there
-without ic«3 were any in this case, is waived by the form of the action.
TosponsA y. jj^^jj^g retaken them, we cannot doubt that his right to

sell was complete, and formed a full justification against
the charge of conversion averred in the plaintiff's decla-
lation.

It has been repeatedly determined by this Court and
others, that if property levied on be left in the possession
of the defendant, it may be evidence of fraud, deriving
force from the length of time it is permitted to remain.
From these decisions it may be assumed as conceded*
that the fact of leaving the property levied on with the
defendants, did not release it from the levy. If it had

SPRING TERM 1842. 333

been released, the question of fraud could not have arisen Bicbabdiok it
or been necessary to be decided, as it coald only have va

arisen in a controversy between the officer or plaintiff in ^^^'^ ^^^
the execution and a third person, claiming the property
as creditor or purchaser, and the release would have been
decisive in favor. of the latter, without raising the ques-
tion of fraud.

Indeed, the cnmbrous nature of pr-operty levied on, is Th« Court win
often such, that it could not be removed but at great ex- rule jpre^ating
pense, and that is the nature of part of the property f^^fvi^ proper™
levied on in this case. To lay down the rule that would 1®^^®^ J" |j* -^«

^ ^ . , "^ . . , care of a defcn-

pievent the officer from leavmg the property m the care dant, if the offi-
of the defendant, if he could trust him, with or without ^'at him/^
bond and security, would be to establish a rule that would
not only subject the defendant to heavy additional costs,
in many instances, put the officer to unnecessary per-
plexity and trouble. We cannot yield our assent to such
a rule. And the circumstances under which the property,
in the case before us, was left with the defendants in ex«
ecution, being such as to leave no ground for the pre-
sumption of fraud, we are clear that the appellants had
BO good cause of action.

But it is objected that the Court erred in not permitting ^v?*°*"]f *?•
John and David Trimble, and John T. Woodrow, who extinguished by
were oflfered as witnesses for the plaintiffs, to give evi Sie aultjirno/a
dence in the cause. David Trimble was examined on tl^^^i^!?^J^!r

, neas lor piain*-

his voir dire, and stated that the property was sold under tiff,
the executions at a great sacrifice, and if the plaintiffs
recovered, they were entitled to recover a much larger
amount than it sold for. Upon this statement 'he was
offered to be sworn in chief, and being objected to, the
objection was sustained by the Court. And it being ad-
mitted that John Trimble and John T. Woodrow stood
in the same attitude, they were also rejected as witnesses.
The plaintiffs then offered, in open Court, to waive any
recovery in the suit for a greater amount than the property
had sold for under the executions, and only claimed a
verdict for the amount the sheriff had received, and again
offered said witnesses ; and the Court still refused to per-
mit them to testify.

334 BEN. MONROE'S REPORTS.

^^'lIetc °" * The witnesses, when first ofTered, were unquestionably
V8 interested on the side of the plaintiffs. If they recovered

~ they were entitled to recover the value of the property

taken, at the time of the conversion, which, according to
the statement of Trimble, greatly exceeded the amount
for which it was sold under execution. The amount so
recovered, would be applicable to, and satisfy so much
of the witnesses debt to the plaintiffs and their cestui que
trusts, by which the witnesses would be discharged to that
' extent, from their liabilities. And the defendants having

paid over the money made, to the plaintiffs in the execu-
tions, as is to be presumed, could not recover it back
from them, they in no respect having participated in the
wrong charged. If, therefore, they could recover it at all,
they could only recover it from the witnesses, the defen-
dants in the ^ecutions, as so much money paid to their
use, and could not, in the recovery, exceed the amount
so paid, which amount falls short of the amount of their
liabilities extinguished by the recovery of the plaintiffs.'
If the defendants could not recover from the witnesses
upon the ground that they had been guilty of a trespass,
in the seizure of the property, then would their interest
be still greater, as both their debts to the plaintiffs in the
execution and their debts to the plaintiffs in this action
would be paid by the same property, and they would be
discharged from responsibility to both to the extent of the
payment, without being liable to the sheriff or any other
for any part of the amount. Nor can we say that the
Couit erred in refusing to receive the offer of the plain-
tiffs, or in still rejecting the witnesses notwithstanding
the offer of the plaintiffs to waive any recovery in the
suit for the excess over the amount for which the property
sold. If the sheriff could not recover from the witnesses
for the money paid on the executions, the offer to release
the excess; if the offer had been carried into effect by an
actual release, would not, for the reason before stated,
have rendered their interests equal.
But the Court was not bound to make terms with the
bound to regaxd plaintiffs or their counsel, nor to receive and act upon a
apK^S^^to make P^^^ ^ff^ ^^ promise to waive a recovery for a part, though
competent his nj^de in opeii Court, upon the condition that the Court

SPRING TERM 1842.

335

would admit the witness to be sworn. Being interested ^odwm
before and clearly incompetent, nothing less than a re- Blythb et al.

will not inter-

lease or a dismissal of the suit for the excess, or at least wiinesB,theoff(ir
an entry upon the record, waiving all right to recover the Sdoutbvwleasei
same, could have rendered them competent or constrained ^fu^' ^^^
the Court to admit them as such. *^ere.

Moreover, the witnesses, at the time when it was
seized, had the actual possession of the property, and by
the express terms of the deed of trust, had the right re-
served to them to retain the possession. If, therefore,
the plaintiffs could maintain the action of trover for the
property at all, which is not admitted, it would seem
proper, perhaps, that they should be restored to the pos-
session and use of the amount recovered upon the like
terms, and for the like purposes, as they were entitled to
the possession of the property. In which case they would
be directly interested in favor of the recovery.

Upon the whole, we think the judgment of the Circuit
C!oQrt should be affirmed with costs.

Hord and Owsley for plaintiffs; Morehead Sf Reed,
Apperson and BeaUy for defendants.

Rodes vs Blythe et al. Chaucbrv,

Error to the Madison Circuit. Case 111.

Usury. Interest.

Cbup J08TIOX B0BBBT8OH delivered the Opinion of Uie Court May 9.

In this case, on a bill filed by a surety fqr enjoining a •fi^e case sute^
judgment, on the ground of usury — it appearing that the
original loan, made to the principal since the enactment
of the statute of 1819, (Stat. Law, 856,) for ten per
cent, interest for one year, had been successively com-
pounded, at the same rate, at the end of each year, for a
period of several years, by substituted notes; the Circuit
Court dissolved the injunction to the extent of the prin-
cipal sum first loaned, and six per cent annually com-
pounded. And the only question for revision is, whether
the decree was right so far as it sanctioned the annual

2bm335
(122 328

336 BEN. MONROE'S REPORTS.

Bodes compounding of the legal interest by new contracts made

Bltthb etaL at the end of each year.

"77"" ^ A stipulation in an original contract of loan for pros-

forTnnuai^com- pective Compounding of even the legal rate of interest

est^'^have ^bccn ^^^ heeti deemed by Courts of equity, oppressive and

held oppressive rather evasive of the lavir against usurious exactions.

and evasive of i . . « •

the laws against But when, Without any such original agreement, the
««tti7- borrower, instead of paying borrowed money which had

withoiUMyT/i- become due, according to the terms of a bona fide con-
^inai agreement, (ract, agrees to compound the principal and legal interest,
Sg the legaf in- and pay the legal rate for further forbearance, such a new
terest, *g[«o^^^ contract has never been considered as either usuiioiis,
thereon, as well oppressive, 01 unreasonable: Breckenridge vs Brooks, (2
pal, for further A. K. M. 339;) Connecticut vs Jackson, (1 Johnson's
u'ie^a?and"not Chy. Rep. 16;) Vanbenschooteu \s Lawson, (G R, 3U])
Qsunous. Thomhill vs Evans, (2 Aik. 330, n. 1 ;) 1 BaU ^

Beatty, 430.

This doctrine is perfectly consistent with justice and

public policy; for when, according to a contract of loan,

interest becomes due, it is a debt which the creditor has

an unquestionable right either to collect or reloan to the

debtor, bv a new contract of forbearance.

3f a loan be made In this case there is no reason for presuming that the

.tnd^annuaiirTe'^ annual renewals were not, in fact, made by new con.

newed by com- tracts, at the endof each year, for reloaning the aggregate

ponndin^ inter* « » i a

«8t at that rate, amount then due by the terms of the preceding contract
will relieve* to Then, had no more than six per cent, been componnd-

Hic|a*Wnt«i?t* ®^' ^^^^^ ^^""^ ^® "^ ^^^^^ ^^^^ ^^^ coercion of the ulti-
•bat admit of the mate aggregate would have been neither oppressive, ille-

ponndiBg of in- gal, nor unconscientious. Does the simple fact that more
ient'o? aU per ^^^^ ^^S^^ interest was reserved and eomponnded depiw
xent the lenders of what they would have been indisputably

entitled to had there been no usury? We think not
It seems to us that the usury, which, and only which,
was illeg&l and void, eould not infect and make void
the compounding to the extent of six per cent, whitb
was legal, but that the eontracts ibr compounding were
as valid to the extent of six per cent, as they wonM have
been had no more been reserved.
The statute of 1819, supra, avoids an usurious eon.
1819 only ren- tract only to the extent of the usury, and authorizes the

SPRING TERM 1842. 337

recovery of the principal and six per cent, interest, not- ^^^

withstanding the illegality of the usurious reservation. .Bi.ixhb «t «/.

It does not afifect the light to renew loans and thus com- <ierB void con-

pound legal interest; and, of course, since this enact- 000 c^Lterest^

ment, as before, the aggregate of principal and interest tenfoOheiwu^i

due at every renewal, and actually re-loaned, is the amount g»d anthoiizes

then "so loaned,*' and which, therefore, the lender has prLd^^w^le-

the express legal right to coerce. ' lo^^^^i^^t

It is undeniable that, under this statute, the fiducia- ^« nAiAo r^

, , new loanB and

ries, who made the original loan in this case, bad a legal thus compouid
right not only to recover six per cent on that loan for one ^ ^ ^
year, but also to re-loan that interest when it became
due. Why then should the re-loan be illegal to any
greater extent than the usury which was void in the, pre-
ceding loan and the reserved interest on that usury? We
are unable to escape the conclusion that, as a renewed
loan of the aggregate of ihe original principal and legal
interest due thereon, may be valid to the whole extent of
the sum so re-loaned, and as now a loan for' more, than
six per cent, interest is invalid here, only to the extent of
the illegal excess above that prescribed rate; therefore,
successive compoundings of usurious interest, at reasona-
ble rests, may not be void or inequitable to any greater
extent than the excess of each included item of interest
beyond six per cent, per annum and the reserved interest
on such excesses.

It may be that compoundings mi^t be so frequent or It might he that
otherwise unveasonable or unusual, as to indicate a dis- ^^ai^ mm
position not to re-loan in good faith, but to oppress the ^"^nt m to indl-
borrower, and by the device of rapid renewals, to evade cate a disposi-
the statute against usury. Such cases, when they occur, a^d to evaSS^Sbo
mast stand on their own intrinsic equity, and will be Ss'n^y^theChan-
treated as they deserve, according to their true character. <^«Wot m^t ia-

mi . 1 / ^1- 1 r\ .1 terfeie^ such ea->

This does not appear to be any such case. On the con- aesaie left to be
trary, it is ostensibly, and we should presume really, the theuowLpwtie^
common case (excepting only as to the usury,) of a loan jjj' ciromnftaa-
and successive re-loans at the end of the customary peri-
od of a year, by trustees whose duty it was to make in-
terest as well as original principal periodically produc-
tii^e. And we are not permitted to presume any purpose
Vol, II, 43

338 BEN. MONROE'S REPORTS.

BoDM of evasion or any other unfairness or oppression than the

Bltthje et ai. reservation of ten instead of six per cent, per annum.

We do not feel authorized, therefore, to disturb the
decree of the Circuit Court
The case of Kayvs Fawler, (7 Mon. 593,) has been

guhhed^^rom relied on as inconsistent with the foregoing conclusions;

that of Kay vb but it is not SO, in our opinion.

m)^' ^' In that case the original loan and all the renewals ex-
cept the last, had been made before the date of the stat-
ute of 1819, and consequently were all, except the last,
void for the whole amount of principal and interest
Kay, the usurer, nevertheless, filed a bill for enforcing a
collateral security for the accumulated debt claimed in
consequence of ail the renewals ; and this Court gave Aim
relief to the extent of the sum first loaned, and six per
cent, current interest thereon, without regard to the con-
ventional rests. For this two reasons may be supposed:
1st, Kay was complainant seeking to enforce enormous
usury, and had not even shown, satisfactorily, the dates
and terms of the various renewals. 2nd, and more con.
clusively, his original loan and all his renewals prior to
1819, being utterly void, he was entitled to nothing more
than he could equitably claim, in consequence of the
last contract made since that year, or rather on the origi-
nal loan as recognized by that contract; and whether
the entire consideration of that contract, being thus void,
he should recover any thing, was the main question then
to be decided, under the statute of 1819. He had not,
in this last renewal, purged the usury, but included the
whole of it; and, therefore, had not biought himself
within the common law principle, which may sustain such
a final contract of purgation, and consequently it may be
that this Court disregarded the last bond as an invalid
security, and considered Kay as entitled, on a contract
implied by the original loan. And certainly the Court de-
creed to him as much as he could possibly have been enti-
tled to, unless he might have had an equitable right to inte-
rest from the date of thelast renewal, on the amount accord-
ed to him by the Court as then equitably available. Bat
this small matter does not appear to have been particular.
ly considered; and if it had been, still there might be

SPRING TERM 1842.

339

reason to doubt whether Kay did not receive at least as Ma«biam ei ai.

Ybaobh.

much as, in equity and conscience, such a complainant
had a right to expect, when invoking the aid of the Chan-
cellor in such a case as his. And, moreover, Kay, as
creditor, was seeking the aid of a court of equity to en-
force a contract on an illegal and void consideration ; but
in this case one of the debtors (though a surety) is seek-
ing the like assistance to avoid contracts, even so far
as they were founded on a legal and valuable consider-
ation.

Therefore, we cannot consider the decision, or rather
mandate in Kay vs Fowler, as authoritatively settling any
principle for governing the case we are now revising.

Our conclusion is, that the decree be affirmed.

Owsley cj- Goodbe for plaintiff; TufTicr and Breck for
defendants,

Marriam et al. vs Yeager.

Error to the Jefpersox Circitit.
Detinue. A llegation and proof.

Chixf Josticx Hobbstson delivered the Opinion of the CourL

In detinue the gist of the action is a wrongful deten-
tion. Such detention, and property or right of posses-
sion in the plaintiff, may entitle him to recover. The
mode of acquiring the possession by the defendant is
not material to the form of the action. A count aver-
ring a finding will not be defeated by proof of tort, or
of bailment, if, notwithstanding the bailment, there shall
have been an unlawful detention. And a count on a
bailment will authorize a recovery upon proof of a right
of action in the plaintiff, and a wrongful detention by the
defendant, even though it shall appear that there had been
no bailment. The suit is for the detention without re-
gard to the manner of acquiring the possession.

And if, in such an action or any other, the Court, after
overruling a motion for a non-suit, shall, in the exercise
of a sound discretion, refuse to suspend the trial until the
defendant's counsel shall embody all the evidence in a

DBTmUB.

Case 112.

JSday 10.

A count in tro^
ver will be sus-
tained by proof
of a bailment, if
an unlawful de-
tention be
shown; and a
count on a bail-
ment will au-
thorize a recoT-
ery if it shall ap-

Eeai there has
een a wrongful
detention, tho'
no bailment, in
fact, be proved;

jthe manner

facquiring

I possession

1 defendant

limportanL

The Court on
overruling a mo-
tion for a non-
suit, is not bound
to suspend tho
faxUier progroM

340 BEN. MOISROE'S REPORTS.

MoosB formal bill of exceptions, and have the bill signed and
sihmaai sealed, such refusal would furnish no available cause for

of the trial to reversing the judgment, provided, as in this case, the
Sant^etowke ^g^t to file an exception in convenient time, and whilst
down the ovi- ^ ^he material witnesses should remain in Court, had

dence in a bul of

exceptionfl, and been reserved to the defendant ; neither such refusal in
provided *^^e this case, therefore, nor the fact that the form of the count
TMerved^in^rea- ^^ ^^ ^ general bailment, is a sufficient ground for re-
Bonabie time be- versinir the iudement for the plaintiff, upon the proof that

fore the witness- ^, , * ^ .^ , . j u j V r ii j

cs depait the horse sued for was his, and had been wrongfully de.

tained from him by the defendants, who had found it.

And consequenxly, these being the only errors assign-
ed, the judgment must be affirmed.

Duncan for plaintiffs; Loughborough and Grigshy iox
defendant.

Pbt. & Sum. - Moore vs Smith et al.

Case 113. Appbal from the Jefferson Gibcuit.

Abakmeni. Joint and several obligors. Jurisdiction.

May 11* Cfliir JinnxoB Eobsbtsoh deUTered the Opinion of the Coart

Hie erne staled. This is a petition and summons brought in the Jeffer'

son Circuit Court against four persons as joint and several
obligors in a promissory note for fifteen thousand dollars.
The summons to Jefferson having been returned execu-
ted on one and not found as to the others, another sum-
mons, afterwards directed to Scott county, was returned
fully executed ; one of the defendants, as to whom the
summons to Scott had been returned executed, appeared
and filed a plea in abatement, averring that the defen*
dant, as to whom the summons to Jefferson bad been re-
turned executed, was, at the time of the service, a non-
resident of Kentucky, and that all the other defendants
were residents of Scoit county. The Court overruled a
demurrer to that plea, and abated the suit as to all the
defendants.

The only question for revision is, whether the facts
pleaded authorized the judgment abating the action.

SPRING TERM 1842. 341

The cause of action being transitory, and the suit be- Moorb
ing in personam, the fact that one of the defendants was Suitq a aU
in Jefferson, and served with process there, gave juris- One of several
diction, as to him, to the Circuit Court of that county, iM'-gora^ma^b^
whether he was th^n domiciled there or elsewhere. Had ""«<!, \ ««y

county where ho

that defendant been sued alone, therefore, the Court is found— and a
would have had jurisdiction to render a judgment against ris^^cUon of the

v:--^ ' Court on a per-

"* "* • 9onal ground, ap»

But the plaintiff, desiring a joint judgment against all g^'"?*''j« ^^. <^«
the obligors, elected to sue all of them and to have pro- available for an-
cess executed on them in another county, where alone it ^ ®' ® ''■"
could have been then served. If that service had been I^e sued andone
illegal as to them, and did not therefore give the Circuit f^iuS^^f*" ^f
Court of Jeflferson jurisdiction over them, still that very ^*M™?^^'hS?^^'
fact might have authorized a sole judgment against the lone, it is error
other defendant, although the action was joint; for the „ to*Ui?oS*er
plea to the jurisdiction by one on a personal ground, not defendants.
applicable to another, will not enure to the benefit of
that other; and the fact that the Court had jurisdiction as
to him would have authorized a judgment against him
alone» by entering a non pros as to the others, unless he
too had then pleaded in abatement; and even if he had
so pleaded a replication that the other joint obligors
were not sueable in the same county would have been .
good. Consequently, if the plea in this case had been
available to the party filing it, the judgment abating the
action as to all was not proper.

But we are of the opinion that the facts pleaded did
not authorize an abatement even as to the party pleading.

The 10th section of an act of 1796, provides that wkere two or
"when two or more persons are bound jointly or jointly ^^'* %cve»Ur
"and severally in any bonder writing obligatory, and the bound, theacUon

M_ I J u 11 -J • j-ir * i- -x " tianaitory, and

persons so bound shall reside in dmerent counties, it theymaybeiued

"shall be lawful for the Clerk of the Court where the suU Ihe'alato^^elS

"is brought against one of the obligors to issue a capias l^^^^ *^

"ad respondem against the other obligor or obligors, di- ceas.andprocess

"rected to the Sheriff of the county where they may re- sent to'thecoun-

"side:" (Stat. Law. 342.) J^Sir defendaSS

The 4th section of an act of 1812, (lb. 343,) enacts "**y be found,
"that in every species of personal action where there are
"more than one defendant, the plaintiff eommencing his

342 BEN. MONROE'S REPORTS.

MooHB "action in the county where either of them resides^
Smith et ai. "may issue any writ or writs to any county where the

' 'defendants or any of them may be found: promded,
"that should a verdict not be found against the defendant
"or defendants resident in the county where the action is
"commenced, judgment shall not be rendered in such
"action."

And the 6th section of the same statute authorizes a
judgment against one on a return of no inhabitant, as
to another in an action against both on a joint obliga-
tion.

None of these enactments should, in our judgment,
be restricted to suits brought in the county of the domidl
of one of the obligors. The statute of 1796 applies to
any county in which the suit shall be brought, and in
which, of course, the Court has jurisdiction, according
to the common law — that is, any county where a de-
fendant may be served with process. This is its literal
import: and we can perceive no reason for presuming
that the Legislature intended any thing else. There
could have been no motive for changing the common
law as to jurisdiction in transitory actions, and confer-
ring it in cases of joint obligation, to a county in which
one of the obligors is domiciled.
The statute of The statute of 1812 should not be construed as repeal-
jiS^dlcSon* ^ to ^^8 ^^ modifying, in that respect, the prior enactment of
any county in 1796, or as restricting a joint suit to a county of the dom.

which the suit ... - i»^v j r j x tx u

may be brought, icil of some one of the defendants. It was, as maybe
diction ^a*cco"d- presumed, enacted merely for the purpose of extending
inon*iaw°w£?h ^^^ former statute to all joint personal actions, and of
is not repealed preventing abuse by inserting the proviso. There could
1^2,^01 doe»u have been no consistent motive for requiring the suit to
Suu'to the lom^ be brought in the county of the domicil of one of the
f" dimL ^^^ ^^' defendants, when it authorizes the issuing of process as

to another, to any county where he may happen at the
time to be. And moreover we can perceive no motive
for intending to change the jurisdiction in such cases
more than in the case of a several action in personatn
against a sole obligor. A liberal interpretation of such
beneficially remedial statutes is peculiarly proper; and
the word "resiae,** inthe?»^t of i:"** --J**^ •^-"''

SPRING TERM 1842. 343

in that of 1812, may, without absurdity, be so understood Moohb
as to be perfectly consistent with the context and pre- Smith et ai,
sumed object of each enactment as we understand them. "
The Legislative intent may be supposed to have been,
that if suit should be brought, where, according to law
it might be instituted, that is, in any county where any
defendant was actually living, or, in other words, resid-
ing at the moment, and could be served with notice, pro-
cess might be issued against any other co-defendant to
any other county where he might, in like manner, hap-
pen to be at the time; and this appears to us to be the
only useful and consistent interpretation — otherwise, if
two^joint obligors, domiciled in another Stale, should
be sojourning in Kentucky for a season, each for exam-
ple, in a different county, both could not he sued, because
no suit could be brought in the county in which either of
them resided, interpreting residence as synonimous with
domicU.

We are satisfied that "residence'* was not intended to
mean necessarily the fixed and permanent habitation,
bat actual cormorancy at the date of the service of pro-
cess.

But whatever may have been the original legislative in- The statute of
tent, the practical construction has ever been, that if one 343?)^^oii'^ot
of several defendants shall be served with process in the change the com-
county m which the suit is instituted, other process may diction in legard
be issued to any other County where any or all of the or foVnt and mv-
other defendants may be found. ^^^} ""^e *^te?m

And such an interpretation is so obviously reasonable reaidea, used in

«,,,, ., , tt. /it ^°® ^^^ section,

and useful, that had any other been established by prac- means wherever
tice, we cannot doubt that it would have been corrected Jn^y be*^ Toimd
by the Legislature; and consequently, this practical con- process^fho'no^
struction as hitherto given and sanctioned by the Legis- the actual domi-
lature should alone, in such a case, settle all judicial
question as to the effect of those enactments.

We are, therefore, of the opinion that the creditor in
this case, having a right to sue in Jefferson, where pro-
cess was executed on one of the defendants, had a legal
right to send process to the county of Scott against the
other defendants, and that consequently the Circuit Court
of Jefferson had jurisdiction as to all of the defendants.

Otsssbxnbh

344 BEN. MONROE'S REPORTS.

It is, therefore, considered that the judgment of the
CoMKONWBALTH Cifcuit CouTt bo icversed and the cause remanded with'

instructions to sustain the demurrer to the plea in abate,
ment.

Guthrie for appellant.

Indictment.
Case. 114.

May 11.

An indictment,
charging the sel"
ling ofspirituoua
Upuor9ln/ retail,
«nd permitttng: it
to he drank in
the house of the
seller, ie good,
and though a pre>
sentment mi)s:ht
lie, an indict-
ment will also;
in which the
CouTtmay assess
tiie fine, aa upon
« presentment
Tlie signing after
the words a true
^11 by the fore-
man of the grand
)ury is sufficient.

Overshiner vs Commonwealth.

Error to the CHRisriiiN Circuit.
Indictments and presentments. THpling honscs.

Judge Ewino delivered the Opinion of the Court.

This is an indictment against Overshiner for keepioga
tipling house. The indictment charges that the appellant
did, on a named day, "keep a tipling house, by. then and
there selling, by the small, and by retail, in said tipling
house, divers quantities of spirituous liquors, to-wit:
whiskey, brandy, rum, gin, wine, &c. to divers persons
to the jurors unknown, and by then and there permittin;
the same to be drank in said tipling house, he the said
Overshiner, not then and there being a licensed tavern
keeper."

The indictment, with sufficient certainty, charges those
acts which constitute the keeping a tipling house. It not
only charges the selling spirituous liquors by retail, but
also the permitting the same to be drank in the house, and
in this latter specification, differs from the case of Woods,
^c. vs The Commonwealth, (1 Ben. Mon. 74,) in which
the selling by retail only, was specified. And if it were
conceded that the offence charged is one for which a pre-
sentment might be maintained, it would not follow that
an indictment would not also be good. An Indictment
embraces all the requisites of a good presentment, and
even more, namely, the signature of the attorney for the
Commonwealth, which cannot render it bad as a present-
ment. Nor can the fact that an indictment has been
found for an offence for which a presentment would li^*
prevent the Court from assessing the fine without the in-
tervention of a jury, in any case, in which he could as-

SPRING TERM 1842.

sess it upon a presentment. Nor is the objection that the
foreman of the grand jury has signed the indictment
under the words "a true bill/' indorsed on the same,
sustainable. The*statuteof 1814, (Stat. Law 1st, 641,)
according to its grammatical construction, requires in-
dictments as well as presentments, to be signed by the
foreman, it does not direct where the signature is to be
placed; and though it may be implied that it was intended
to be placed at the foot of the presentment or indictment,
as the object of the signature was to show to the Court
that it had been passed upon and found by the grand
jary, this in as well shown by an indorsement of his sig]
nature as by placing it at the foot of the indictment, and
either form, we have no doubt, will suffice.

There being no error in the record, it is the opinion of
the Court that the motion to set aside the non-suiit be
overruled.

Monroe for plaintiff; Cotes, Attorney General, for
Commonwealth.

345

Lbwu
l0tb*8 bvibi.

Lewis vs Love's Heirs. Chiwobw.

Error to the Jeffersoit Circuit. Case 115.

Fraudideni conveyances. Evidence. Creditors and

purchasers.

JmwB Ewino deliyeied the Opinion of the Court May 11.

is May, 1837, George R. Love, upon no other con- Tb« ease itatad.
sideration than love and affection, conveyed his real estate
to his three infant children, who were living with him;
and in June following, on the same consideration, conr
veyed to them his slaves and other personal property, and
both deeds were duly recorded in June of the same year.
In October following, he borrowed money from Lewis
and executed a mortgage to him for one of the slaves to
secure the re-payment thereof. Before and after the mort-
gage, he remained in possession of all the property and
exercised ownership over it, selling, renting and hiring,
and applying the profits to his own use, as he had done
before the conveyance to his children, until one Merrjl-
Vol IL 44

34ft BEN. MONROE'S REPORTS.

Lewis weather was appointed by the County Court, guardian of
Love's heirs, the children, and claimed in that character to control the
^ property. Lewis filed his bill against Love and his chil-
dren and Merriweather, to remove the incumbrance from
the slave mortgaged to him, and to subject him to sale in
satisfaction of his debt. Love having died, the suit was
renewed against the thiee children as his heirs, there
being no administration on his estate.
The Chancellor, upon the hearing, dismissed the com.
ChSSSuo'i! ^^ plainant's bill, and he has brought the case to this Court.

The bill was dismissed by the Chancellor on the ground
that there was no evidence other than the confessions of
Love, that he was indebted at the time when the deeds of
gift were made to his children, and that these confessions
were made after the deeds were made, and were not evi-
dence against them; and that the conveyance thus made
was not fraudulent and void as against the complainant
a subsequent creditor.
A statement of ^^^ Chancellor seems to have* overlooked the deposi-
a debtor, that he tion of Wm. L. Mitchell, wHo states that some time in
his property to February, 1837, as well as he recollects. Love told him
some months be^ ^r spoke it in his presence, that he teas very much indebted.
fore he had done jje yj^^s speaking to a man to whom he was indebted, and

80, and his ac- . , ,

knowicdgment, stated to him that he need not sue him, that he had
conddcrabie in- made over Ais%propcr/y* to his children, h\ii would fay him,
fonv^^t^% Though the statement that he had made over his proper-
infant children ty was untruo, it shows that the ©ZflTi had then taken root

then livinfiT with

him, his entire in his mind, and the object to be-accomplished by it, and
wg^the^'possS- the statement was made that he had made it over to deter
lenW hirhig ^^^ Creditor from sueing. In corroboration of the evi-
and using the dence of this witness, is the evidence of several others,
own, altogether proving by his confessions after the deeds were made,
conveyance ^ which are at least competent against himself, the frau-
Sda^anddcfrand ^^^^^ motive which prompted the execution of the deeds,
creditors, and is which taken in connection with the facts that the deeds
sequent purcha- embraced all his property, that they were made to chil-
Fior ^editors," ^^^^ ^f tender years, who were living with him, and that

he continued as before in possession, selling, renting and
hiring, and applying the proceeds to his own use, and ex-
ercising every other act of ownership over it, leaves no
rational doubt upon the niind, that they were not made

SPRING TERM 1842. 347

as a reasonable advancement to his children, commensu- Lewis

rate with his means and condition, but as a cover to hinder, Lovb's hsibs.
delay and obstruct creditors in the enforcement of their
debts, and as such the whole transaction is fraudulent
and void against subseqv.enLtLS well as prior creditors.

But the complainant does not stand in the condition of a mortgagee oc-

di general creditor, hut SlS mortgagee, occupies the more more favorable

favorable attitude of a pwrcAflScr for valuable considera- chaser^fora vai"

tion, to the extent of the sum secured: Roberts on Fraud- uabie considera-

, tion to the ex-

ulent Conveyances, 373, and the authorities cited. tent of the bwh

As a purchaser, the mere fact that the deeds are volurt-
lary, render them at least prima facie fraudulent ana
void as to him: 27/ A Stat, of Elizabeth, (1 John, Chy,
Rep, 261 ;) Sterry and wife vs Ardew and others and the
authorities there referred to; same case, 12 John, Chy, Rep,
536, and the authorities referred to; Roberts on Fraudv.
lent Conveyances, 62, and Seq. and the authorities there
referred to.

But when, as in this case, it is obvious that they were
made, not as an advancement, but with a fraudulent
motive and intent, they are unquestionably void as to him.
Nor does it matter that the deeds were recorded or that
the complainant had constructive notice of their execu-
tion prior to his purchase: Sugden on Vendors, 620;
Burton's Lien of Real Property, 79 and the authorities be-
fore referred to. And though they were recorded, he most
likely never had actual notice of their existence, and if
he had, notice of the deeds was notice that they were
voluntary, and may also have been attended with notice
that they were fraudulent, and consequently void.

Decree reversed and cause remanded, that a decree
way be rendered in favor of the complainant below.

Loughborough for plaintiff.

Sa BEN. MONROE^S REPORTS.

fi^^l AaawftPfliT. Atkinson vs Stewart, Same vs Thayer,

Same vs Chamberlain.

Case 11&. Error to the Jefpersow Circuit,

Assumpsit, Joint sureties. Contribution.

May il. JoDOB Marshixl delivered the Opinion of the Court.

Th^ eaae stated These were three separate actions of assumpsit brought

against Atkinson by the other above named parties re-
spectively, each action being upon a single count for
money paid and advanced for the defendant. And the
question presented by the record is, whether and to what
extent such actions can be maintained upon the following
facts : a joint and several note for $1500, payable to the
President, Directors & Co. of the Bank of Kentucky,
and executed by R. S. Davis as principal and Stewart,
Thayer, Chamberlain and Atkinson as sureties, having
been discounted by said Bank, for the benefit of Davis,
and being unpaid at maturity and protested, therefore,
Stewart, Thayer and Chamberlain paid and took up the
same by paying into Bank something over $50 each, and
by executing and procuring to be discounted at the said
I Bank, their joint and several note for $1350, in which

Stewart was named as principal and the other two as
sureties, and the proceeds of which were, upon the check
of Stewart, passed to the credit and discharge of the pro-
tested note. This second note was made and offered and
discounted for the benefit of the three parties to it respec-
tively, and had been reduced by payments at the time of
the action, to about $900. Shortly after the protested
note had been thus paid and taken up, Davis offered and
executed to the three parties who had paid his debt, a
mortgage on his interest in the right of his wife, in cer-
tain slaves of the estate of her father, which, however,
were still in the hands of the administrator, and subject
to the event of a suit in chancery pending against him,
which might render a sale of them necessary. The mort-
gage contained an express obligation on the part of Davis,
to pay to the mortgagees the amount of the $1500 note.

SPRING TERM 1842. 349

with charges, as a present debt, but provided that, if aimh«ok
payment should be made in four monthsi the mortgage Stbwabt,ac.ac.
should be void. It also provided that if Atkinson, who
took no part in any of these transactions, after the exe-
cution of the protested note, should contribute to his co-
sureties, the mortgage should be for his benefit as well as
for that of the mortgagees. On being informed of these
facts, Atkinson approved of the mortgage and promised
to pay his proportion of the debt, partly in money and
partly in his note due, but understood to be payable, as
the Bank might require payment from the others. But
he did none of these things.

It may be assumed upon the evidence, that Davis was
insolvent, except so far as the contingent interest covered
by the mortgage might make him otherwise.

On these facts a verdict was found for each of the plain-
tiffs, for the amount of one fourth of the protested note
hi Davis, &c. with the interest thereon ; and the verdict
and the judgment upon it are, in our opinion, supported
by the following propositions, which, as we think, con-
tain the law of the case.

1st. The extinguishment of the original debt in the
manner above stated, was such a payment in money or
its equivalent, as according to the case of Robertson vs
Maxccy, (6 Dana, 101,) and the cases therein cited au-
thorized an action against the principal debtor for so much
money paid for his use ; and so far as the mere form of
action is concerned, the same principle applies to the ac-
tion against a co-surety. And indeed as by the discount
of the note of the three sureties, the money was, in fact,
appropriated in Bank to the drawer, the application of it,
upon his check, to the original debt, was in truth, a pay.
meat of so much money, dispensing only with the useless
ceremony of taking the money out of Bank and instan-
/aneoasly returning it.

2nd. Although in the new note, on which the money
was raised, Stewart was named as principal and the
other two obligors as his sureties, and although in con-
sequence of this form the amount was applied to the
original note upon his check ; yet as the new note was
lesorted to by the three as a means of raising the money

350 BEN, MONROE'S REPORTS.

Atkinson for thc benefit of each, for the discharge of a debt for
i^nwART, *e. AC. which each was liable separately, and as it was obviously
"** intended to be a payment of one third of the origioal

debt by each, and that each should be liable as between
themselves, for one third of the new debt, it cannot be
conceded that the cause of action resulting from the pay-
, ment accrued to Stewart alone, in consequence of its
being made on his check as principal ; and even if, in
consequence of the money with which the payment was
made being raised upon the joint credit of the three, it
might be considered as a joint payment giving a joint
cause of action, it may also, in regard to the substance of
the transaction, and to the intended and actual liability of
each for his third of the new note, by which the money
was raised, be considered as a separate payment of one
third of the original debt by each, from which a separate
cause of action would result to each for that third, against
Davis, the principal debtor, or for one fourth of that
third against Atkinson, their co-surety, who had not con-
tributed to the payment, except so far as this latter canse
of action might be affected by the solvency or insolvency
of Davis, the principal.

_ 3rd. Conceding that the action against the co-surety

Where one or . , . ^ r ii_ • i r^u

more of several arises only m consequence of the insolvency of the prin-

paya o/a' note ^^P^^» ^°^ ^^ *^® extent that he is unable to pay, as de-
by note in part cided in the case of Morrison vs Poynis, (7 J9ana, 307,)

and money ior ,.t» a rk.i *v*-^-.. ,w^vj

the residue, and and m Fearsoti, ^c. VS Duckham, (3 Liliell, 385,) and
insofJcnt;^ such that when the paying sureties have taken a mortgage from
to 'demand con- *te principal debtor, this circumstance should, on the
tribution from presumption of solvency to the extent of the mortgaged
Buretiea, though property, be deemed prima facie, sufficient either to
ipte bTnof fully translate the cause of action to the equitable fomm, or to
discharged, and suspend it until the mortffage is exhausted: Morrison xs

maymamtamin- * ^ ^

debitatiaassump- Poynts, supra. Still wc arc of opinion that the mort-
gage in this case should not have any such effect, because
when taken in connection with the proof relating to the
same subject, it affords no presumption of such solvencf
of the principal as should repel, diminish, or postpone
the le^l liability of the co-surety to contribute to the sure*
ties \«lo have paid tlie debt. The property mortgaged
furnishes no present means of coercion, either legal or

SPRING TERM 1842. 351

equitable. But its availability depends not only upon the Atkinson
contingent result of a suit in chancery, of uncertain dura- Stewart, acac.
tion. which may sweep it all away, and with which the '
plaintiffs have no right to interfere, but also upon other
contingencies growing out of the rights of the wife, by
which the interest of the husband may be entirely super-
ceded. If an action against Davis had been resorted to,
the contingent interest which he has mortgaged would
not have prevented a return of ''nulla bona,** upon the
fieri facias, for execution of the judgment. If these ac-
tions had been brought without any mortgage having been
taken, they could not have been defeated to any extent,
by showing the interest which has been mortgaged, as
proof of solvency of the principal. And we think it
would be unreasonable to say that the present plaintiffs,
because they have taken a mortgage, not for the purpose
of present indemnity, and which neither furnishes nor
promises any present remedy, but only a possible pros-
pcctive security which may be available at some future
period, and which embraces the interest of their cosurety
as well as their own, should be, to any extent, postponed
or otherwise affected in their remedy against him. The
case, in this respect, is clearly distinguishable, not only
from the facts but from the principle of the case of Mor-
rison \s Poynts, supra.

4th. The cause of action against the co-surety, Atkin- And this right of
son, being complete and unaffected by the mere fact of orsu8pend°ed°by
a mortgage, we do not admit that it was affected either {{}ua*"'*^*^^|^ ^^^
by giving time to the principal debtor before the raort- debt, taking from
gage should be forfeited, or by taking his acknowledg- way oflnlfemni^
ment of the debt and covenant for payment, as a part of Jj^^* ^m^^iy
the mortgage; both of these acts or circumstances, and contingent right,
especially the former, were, as appears irom what has then available,
already been safid, entirely nugatory, as to any pre- be of^anyVake!
seat substantial interest or advantage. Tho covenant
may indeed have merged the simple contract, and the
time allowed may have postponed the right of action of
the present plaintiff, against Davis the principal debtor.
But how did this affect their rights against their co-surety,
or his rights or duties in regard either to the principal
debtor or to them. The true causes of action by the

352 BEN. MONROE'S REPORTS.

ATWN80K present plaintiffs against the principal, and against their
Stewabt, AC. AC. co-surety, were distinct and in no way dependent on each

other, except so far as one or the other might be satisfied.
The mere merger of the one in a higher security, not
susceptible of enforcement and not intended to be en-
forced to immediate satisfaction, was not a merger of the
other; and the suspension of the remedy by the present
plaintiff against the principal debtor, did not prevent the
co-surety from proceeding against him as soon as by mak-
ing contribution, he should have any right to do so. His
remedy against the principal would not arise from his
having paid for him a part of his debt to the other sure-
ties, but from his refunding to them under his original
obligation a part of the money which they had paid for
the principal, and which he was also bound with them
to pay to the Bank. He would not have remedy against
his principal by substitution to the right of his co-sureties,
but because he had paid money, which as himself being
a surety, he was originally bound to pay; and as his
right to demand remuneration for such payment would
not be affected by the suspension of the remedy of his
co-sureties against the principal, so his duty to make the
payment would not be affected by it. Atkinson did not
stand as surety of Davis to his co-sureties who had paid
the debt, but was subject to a separate liability; and the
doctrine which releases a surety in consequence of cer-
tain arrangements between the creditor and principal
debtor does not apply, and Atkinson was not in our opin-
ion released by any or all of the facts referred to.

5th. This being so, the subsequent promise of Atkin-
son to pay part in money and to give his note, &c. if ac-
ceeded to, was at most but an accord without satisfa^
lion, and did not merge the cause of action previooslf
existing. It was, in fact, but ari offer to do what was
just, and would doubtless have been accepted; but not
having been performed it was entitled to no effect in the
case.

Wherefore, the judgment in each case is affirmed.

Duncan for plaintiff; Pirtlc for defendants.

SPRING TERM 1842. 3ft3

McGee vs Gibson. Thespass.

Appeal from thb Jessamins CiBciriT. Case 117.

Landlord and tenant Trespass.

JffDOi Mamhatx delife^d the Opinion of the Court. May 12.

In the former opinion rendered in this case, 1 B. Mon. The cue itated.
107, this Court decided upon the facts then assumed,
that if Gibson, who was the plaintiff in the action, left
the service of McGee wrongfully or by mutual consent,
his right to occupy the house under the contract ceased,
though the year had not expired, and the judgment for
the plaintiff was then reversed because the Court had
put to the jury the question whether, at the time of the
trespass, be was in possession of the house under lease
for a year; when the question, whether it was a lease for
a year, was one of law arising on the terms of the con-
tract, and when, as decided by this Court, there was no
independent lease, but a right of occupancy incidental
to the contract of hire. The Court did not then express
its opinion either as to the effect of a cessation of the
plaintiff's services by the fault of the defendant, or of a
new agreement for the prolongation or continuance of
the right of occupancy, because these points were not
presented in Che consideratioa of the instfuctions then
under review, and because they were too obscurely pre-
sented by the evidence to require a decision of them. '

But, as upon the evidence adduced upon the last trial, Whew • eos^^
the jury had a right to infer the existence of one or both occupancy of a
of the facts above mentioned, and which were not con- ytlir"2S* cJndi!
sldered by this Court when the case was here before : it ^^^^t^C ^^ ^^

. ' . . ftnt IS in no de-

ls necessary now to say, that in our opinion, if the fail- fault his right to

ore of the plaintiff to serve the defendant during the year, not ^d^t^rmlnedSI
according to his contract, was caused by the wrongful JJ* his^'poweS^
act of the defendant himself in prohibiting or preventing ;io; ^j **»• i*n^-
the service, the plaintiff's right of occupying the house paw.
daring the year, though incidental to th^ contract of hire,
did not cease with the services thus wrongfully tesmioa-
ted by the defendant, and that of coarse .the jattcir had
Vol. H 4$

354 BEN. MONROE'S REPORTS.

Mooji&Tatlos jjq ,.jgjj^ Qf entry during^ the year without the consent of
SroBT. the former, but was liable to an action for such entry and
for any damage committed on the premises by him; and
if the services of the plaintiff were terminated by his
own fault or by mutual agreement, and his right of occu*
pancy was prolonged or continued by agreement and
consent of the defendant, then also the defendant was
liable for an entry without the consent of the plaintiff,
and a trespass committed while the right of occnpancy
continued according to the agreement.

The instructions given on the last trial, weie substan-
tially conformable to the principles stated in the former
opinion, with the modifications above indicated, as be-
ing properly applicable to the evidence as now exhibited;
and as the jury had a right, upon the evidence, to find for
the plaintiff under either aspect of the case as above sta-
ted, there was no error in overruling the instructions ask-
ed for by the defendant, nor in refusing a new trial-^and
the judgment is affirmed.

Hewitt for appellant; Harlan ^ Craddock for defen-
dant.

Chawcbky. Moon & Taylor vs Story.

Case 118. Errok to the Louisvillb Chancery Court.

Interest. Attachment in Chancery, Surely, Rule of Court.

May IS. JuDGB Ewiro delivered the Opinion of the Court.

The cMe ttated. This case was before this Court at the spiing tenn,

1839, and will be found reported in 8/& Dana, 226— the

merits of the controversy were then settled. Among other
things, it was determined that Moon & Taylor were en-
titled to interest on $3097 82, the balance found doe
Tte Chancellor ^'^°^ Story, from the filing of their bill. The Chancel-
appUes pwrn'ts lor has failed to carry out the decision of this Court, with

«s aconrtof law, x a ^v • . . « « « • i • « a

first to^ ertin- rcspoct to the mteiest, and for this error his decree must
gwh iniereat, ^^ reversed and cause remanded, that interest may be es-
timated upon the aforesaid sum, from the filing of the
^ bill up to the first payment made under the decree ren-
dered by the Chancellor, which was reversed by this

SPRING TERM 1842. 366

Coart, and that the payment be first deducted from the Moo» & Tatlo»
interest, and the residue from the principal, and interest Stort.
in like manner calculated upon the remaining principal '

op to the next payment if any, and the payment deduct-
ed in like manner, and so on, as to the estimation of inter-
est and deduction of payment, until the last payment is
applied and exhausted, and then that interest be calcula-
ted up to the rendition of the final decree herein, and ad-
ded to the principal, and the aggregate amount decreed
in favor of the complainants. We do not perceive, from
the record now before us, the ground upon which an ad-
ditional allowance was decreed in favor of the complain-
ants upon filing the decree from the Meade Circuit Court,
'issolving an injunction and dismissing a bill of Stew-
art and Pearson against John Alsbrook, &c. It may
have been properly allowed, and we cannot determine
tbat it was not, but leave the question of that allowance
open for further adjudication by the Court below, as it
does not seem to have been objected to there or here by
the counsel on the part of Story.

It is also assigned for error that the Chancellor erred
in overruling the motion of the complainant's counsel for
a rule against Bakewell, the surety of Story, to show
cause why he should not be required to pay the decree
tendered against his principal. It appears that two or-
ders were obtained from the Judge of the Jefierson Circuit
Court, where this suit was originally instituted, and from
which it was removed to the Louisville Chancery Court,
directing the partnership goods, &c. to be taken and de>
livered to the complainants upon their executing bond
with security ''to take good and discreet care of said
goods, ice. and render a true and faithful account of all
that may pertain thereto, as the Court shall order, unless
Ihe defendant. Story, shall enter into the like bond in the
penalty of six thousand dollars, with good security and
like condition. Under the first order a bond was exe-
cuted by Story, with Bakewell as his security, bearing
date the 14th Oct, 1831, with the following condition :
"now if the said Robert Story shall well and truly take
good and discreet care of said stocks of goods, bonds,
and papers, mentioned in said restraining order, and

386 BEN. MONROE'S REPORTS.

noon &TATMB gii^ abide and do whatever the said Court may order and
Sto^ decree in the case mentioned in the snipana and restrain-
ing order aforesaid, then this obligation to be void, else
to remain in full force and virtue." And by an indorse-
ment on this bond, Story assigned the goods to Bakewell,
his security. Under the second order, made the next
year, a bond was executed with like penalty, conditioned
as the order required, with Bakewell and Wm. J. Story
as sureties, the latter of whom is dead.

The goods, on their execution, were left in the pos.
session of Story. These are judicial bonds taken ond^r
the orders of the Court, and were intended to secure
the property sothat it might be forthcoming, to be (2^
tided, or to be applied in payment of any decree that
might be rendered, or to abide any future order of the
Court; and so far as their conditions conform to and jntr-
sue the order of the Court, we think they may be en-
forced by the Chancellor not only against the principal,
but against the surety. But as to that stipulation in the
first bond which requires Story "to abide and dowbatev.
er the Court may order and decree," if it should be in-
terpreted as imposing a responsibility beyond the value
of the goods, which is not now necessary to be determin-
ed, it is to that extent out of, and goes beyond the order
of the Court; and if the sureties can be rendered respon-
sible for its breach even at law, the Chancellor might
^ell refuse to enforce it; but as to the partnership goods
at least, they were left with Story, and as to them be
should be regarded as occupying the condition of a quasi
receiver, and he and his sureties bound within the terms
o£ the orders of the Court, that he should take good and
discreet care of them and render an account of the same
as the Court should order.

The rorei in a ^^' ^^^^^^^^^> Story fails to satisfy the decree, or upon a

bond for the proper order, to produce the goods, that they may be ap-

pro^iSirafw^^^ P'^®^ i^ satisfaction of the same, Bakewell may be made

coiior,**"m8^*"b^ responsible, on a rule'againsthim, for at least the estima-

rendered reapon- ted voluc of the goods left with Story, to be credited,

for faUing to however, with such sums as may have been paid in the

Swav M$S progress of the case, to the complainants, or in satisfac-

principai, wiUi- tion of claims against the firm, out of the proceeds of

SPRING TERM 1842, 357

the sale of the goods. And as it appeared in the , pro- Ch«mtopb»
giesd'of tbe case, that the goods had been sold, except Cotinoton Am

a few remnants, and could not be produced, and also ^""y'

upon the rule against Story to pay the decree, that he had and^irthe^^bonj
taken the oath of an insolvent debtor, and had been dis- ^9^^^ ^^'^^^
charged from custody under the attachment against him, those reauired
we think the rule should have been granted against Bake- the chanceiioi,
well. Though in form it was moved that he should show }J^[ ^^j"^^ ^
cause why he should not pay the decree, and he might disregarded.
not be responsible for a greater amount of the decree*
than the estimated value of the goods, not taken care of,
accounted for or produced in good condition, to be ap-
plied in satisfaction of the decree, subject to the credits
as aforesaid ; yet it is apparent that he is responsible to
some extent, and ought to have been made to respond to
the rule. The motion was, therefore, improperly over-
ruled.

The decree of the Chancellor and order overruling the
motion for a rule against Bakewell, is reversed, and cause
remanded for further proceedings.

Owsley and Wheatley for plaintiffs; Duncan for defen-
dant.

Apnl 27.
The case stated.

Christopher vs Covington and Smith. Trovbr. ^lb^35:

fl2fi 541

Error to thb Madisoit Circuit. q ^^q

Fraudulent conveyances. Sheriffs. Executions. Torts.

Ciisr JvsncB Bobebtson deUyered the Opinion of the Court.

James Heatherly having conveyed to two trustees,
(one of whom was his creditor,) a male slave and various
articles of personal property, (described as constituting
his whole estate legally subject to his debts,) in trust, for
sale and distribution among all his creditors, who were
numeious — two of them, who seem not to have assented
to the conveyance, immediately afterwards sued him at
law and obtained judgments. Executions of/, fa. which
were issued on these judgments, were levied on the said
slave and sundry other articles embraced in the deed of
trust, which were sold by the sheriff for $801 68.

358 BEN. MONROE'S REPORTS.

Christopher After the saleof all the property levied on, except the
CoTiNGTON AND sldve, and between the date of the levy on and sak of
*"™* him, the trustees brought this action of trover against the

Judgment of the sheriff; and, on the trial on the general issue, verdict and
vi^i^iS^be^wV judgment were rendered for «801 68, in damages.

Against that judgment several objections are now urg-
ed in this Court.

1. The plaintiff's counsel insist that the deed of trust

was fraudulent and void, as to the judgment creditors,

and that it was the duty of the jury to have so found.

There is nothing apparent on the face of the deed

of airihe debtors ^^^^^ would prove that it was intended to hinder or delay

property. inciud- any Creditor. It purported, to be for the benefit of all

msr StOCJL Ann ft i X I

growing crop, equally ; and although it prescribed a sale after the expi«
for^a^aft^y iho wtion of about three months, upon notice and also upon
bcne^tofaUthe ^ ^^^^^^ credit, yet, as it did not otherwise restrict the
creditors, after powef of sale, the inevitable delay that must have re-

the expiration of i, ■ « , ^i_ • j i_ i j - •

about 3 months, suited from a sale as authorized, should not, m ouropm-
ly '^^ frauduiMiC ^^"' ^^ deemed such as necessarily to evince a fraudalent
and if Uieinten- design to obstruct or Otherwise injure any of the credil-

tionbetomature ^ _ , . , / . .1

the crop and fat- ors. In every such assignment some delay is unavoid-
ia'^noi^ p^^sel *'^'®* I' is not, therefore, the fact of delay, but its char-
fraudulent acter, and the motive which actuated it that is deemed

fraudulent in law. It is proved that the avowed object of
the parties to the deed, for postponing a sale for the pre-
scribed time, was a wish to allow time for fattening the
hogs and maturing the growing cYop embraced in the
conveyance; and if this were the only motive, the delay
was not, in our judgment, fraudulent; or in other words,
the fact of delay does not, per se, prove that the deed
was made to hinder, delay or defraud creditors.

And we are of the opinion that it was not the duty of
the jury to find that the conveyance was fraudulent.
Nor should such a conveyance, in trust, be deemed,
to remain in Uie P^ se, fraudulent, merely because Heatherly was per-
propertyTo con^ mitted to remain in possession of the property conveyed,
veyed, is not, 2. The next objection to the judgment is, that the Cir-
lent ' cuit Court refused to permit the plaintiff in error to prove

that, after the execution of the deed, Heatherly said that
his object in making the conveyance was to prevent a

SPRING TERM 1842. 359

sacrifice of his property and enable him to pay all his cheistophbh

creditors. CoTHferon AMO

But that fact, if it be admitted to be evidence against ^'"™'

Heatherly, of a fraudulent intent on his part, was not> The declarations

in our opinion, admissible against the trustees and bene- the^^dcUvefy of*a

ficiaries, because the declaration was made after the de- ^l^^'.^f il?^

' competent eTi-

livery of the deed ; and though he was then in the pos. dence a^^ainat

session, we cannot perceive bow that circumstance can otheilToterested

make his declaration, not as to his possession, but as to {Se^'conveyMcef
bis motive in making the deed, competent evidence.
We cannot consider it admissible as part of the res
gestae,

3. The plaintiff in error also offered to prove that about it is not compe-
tbe date of the conveyance in this case, Heaiherly had frauduient^^^in^
made to other creditors a fraudulent conveyance of his ^ey^ce in tras^^
land: but the Circuit Judge did not permit him to do so: ^ prove that the

J .!_• 1 • u- X J f 13 1 •<! grantor had pre-

and this also is objected to as erroneous. But it seems viousiy been
to us that the judgment ought not to be reversed on that Tfraud^uieStcMi^
ground. The fact of fraud in another case would cer- Jt^eJJl^i^ *"'
tainly be very remote and anomalous evidence of fraud
in this case; and an investigation of such previous and
independent fraud might not only have taken the opposite
party by surprise, but have involved the Court in a col-
lateral, and perhaps protracted and vexatious inquiry be-
tween strangers to this suit. But, waiving all this, we
will sot reverse the judgment merely because the Court
did not permit such a collateral investigation, when the
party proposing it offered no specific proof, propounded
no question to any witness, nor showed, in any other
way, that he could prove any fact which would even tend
to establish the broad-cast charge that there had been
fraud in another act of Heaiherhfs life.

4. It is also urged here that, as the slave had not been Though a sheriff
sold when this suit was brought, the recovery as to him k^ an execuT
was unauthorized. But, if it be admitted that the sheriff moV«IgedT;l^
might have levied on the equity of redemption, and that, Jj ^\^^ ^ief
therefore, having a legal right of caption under the exe- ling, and by such
cation, there was, in judgment of law, no proof of con* ticm,*bc gSut™of
version until there had been an illegal sale of the abso- IbifSt^^^i'^^i
lute property : yet, nevertheless, we are clearly of the aets of ic sheriff

^ - . \, ;., i_ ^. .. .1, 1, It. after the institn-

opmion that the subsequent tort m illegally sellings opera- Uon of Uie buU

360 BEN. MONROE'S REPORTS.

Cheistophbh ted, by relation, on the original levy, so as to make it an
coTiNOTON AN» illegal assumption of dominion, and therefore, a conver-

- - — sion, 00 initio.

«how°'the ^ 0°^^ The sale proved the illegal intention with which the
oaki^^^'^^^^'^ ^^ '®^y ^^^ made, and therefore, by proving that the levy

had been for an unauthorized purpose, and was, conse-
quently, tortious, it proved that, in making that levy, the
sheriff was guilty of a conversion, for which this action
was maintainable.
A creditor who ^' '^^^ plaintiff's counsel also argued that, as the exe-
is moTided for <;ution creditors were beneficially entitled to a portion of
deed of trust, the property sold by the sheriff, their distributive inter-
ef rilentTTo' ests ought to have been deducted by the jury; and that,
^e deed, levies therefore, the assessment was exorbitant. But this posi-

his execution oa ' . . » /. .i i m i

the trust proper- lion also is, m our opmion, mdefensible. The legal title
Se tius*e^,* in being in the plaintiffs in the action, they had a right to
r^^ is^hLi for*^the f^cover to the whole extent of the damage to their legal
illegal seiaure interest; and any equitable right which the beneficiaries
iff and the cred- may have, can be made available in equity only. This
has ' ncrciaim' ^to principle has been, heretofore, recognized and applied
any abatement jjy ^his Court in such cases as this, and seems to be per-

in the extent of •' . t i

the reeoTenr oa fectly Consistent with all analogy in actions on legal

account of his . .
interest as a cea- titles.

4hlle"ed!"^* '" 6. The last objection to the judgment, is thai the jury,

in assessing damages, included about $6 for which some
wool had been sold by the sheriff, and which, as assum-
ed in argument, was not embraced by the deed of trust.

We are strongly inclined, however, to the conclusion
that, though the wool is not specifically mentioned in the
deed, it was intended to be embraced, and should, theie-
fore, be deemed to have been vested in the trustees> Bat,
however this may be, we would not be disposed to re-
verse the judgment for $801 68 merely because, in the
assessment, $6 had been included improperly, on account
of the wool; for if the plaintiffs in the action were enti-
tled to any thing, they were clearly entitled to the valoe
of iheir property sold by the sheriff; and it is evident, not
only that the verdict corresponds precisely with the
amount for which the sheriff sold the whole property, but
that this sum is less than the real value of the property,
excluding the wool. Consequently, even if the price of

SPRING TERM 1842. 361

the wool be deducted, the verdict is not higher than it Chwwophib
ought to have been, upon the hypothesis that any verdict Omvo^w aw

tor the plaintifTs in the action was proper; and, as already .^ 522:

intimated, we are of the opinion that the jury had a right,
upon the law and the facts of the case, to find for ihe
plaintiffs.

Wherefore, the judgment of the Circuit Court must be
affirmed.
Owsley (f' Goodheiot plaintiff; TV^rner for defendants.

Petition for a Rb-hsaring,

(By Owsley 6l Goodloe.)

The counsel for the plaintiff in error, have carefully
examined the opinion delivered in this case, and feel
themselves impelled, by a sense of duty to their client,
to ask of the Court a reconsideration of it. They aro
not unapprised that the case has been elaborately argued
and kept under advisement by the Court, for some time.
This does not, however, weaken the firmness of their
convictions, that some of the principles upon which the
case is made to turn are unsound.

The facts of the case — James B. Heatherly being in-
debted beyond his ability to pay, in the midst of his soli-
citations to his creditors not to sue him, pledging to them
his honor, that he was able to pay all, and would, under
no circumstances, incumber his property by mortgage or
deed of trust ; without the knowledge, consent or request
of a single creditor, on the 13th day of May, 1841, se-
cretly conveyed all his property to the defendants, in trust
for all his creditors equally, with a provision in the deed,
that the trustees, ''on or after the 1st September, 1841,
should proceed to advertise and sell, upon three months
credit." One of the trustees is not a creditor, the other
is to the amount of $126, but his debt is stated in the
deed at $175.

The trustees accepted the trust, but when, does not ap-
pear, as their indorsement of acceptance on the deed is
without date, and there is no other proof upon the sub-
ject in the record. Heatherly remained in the posses-
aion of the property, using and exercising acts of owner-
Vol. if. • 46

362 BEN. MONROE'S REPORTS.

CHRiBTOPHia ship over it, until the 12th of Jiine, 1841, when the
€oviNGTON AND plaintiff in error, as deputy sheriff, levied four executions
^^""' , upon part of it, and on the 2nd July, 1841, sold a por-
tion, and on the 9th of August thereafter, sold negro
Joe. On the 5th July, 1841, this action of trover and
conversion was brought by the trustees against the deputy
sheriff, and a recovery had, for the full value of all the
property levied upon. The plaintiffs proved by the drafts-
man of the deed, that Heatherly, at the making of the
deed, stated, that his object in postponing the sale until
"on or after the IsL September,'* was to enable hirato
raise his crop and put his stock in order. It was also in
proof that the trustee, Covington, stated that the object
in postponing the sale, was the same as stated by Heath-
erly. There was no proof that a single creditor, except
the trustee. Smith, assented to the deed after it was made,
And that there was "fraud'* in his debt to the extent of
fifty dollars of it.

It is such a deed as this, surrounded by such circum-
stances, without a single additional mitigating one, that
this Court, in the opinion delivered, has sustained as
valid and not fraudulent.

We would respectfully ask if the deed, upon its face,
does not exempt the property from sale until after the 1st
day of September? Had the trustee any authority to sell
earlier? Could a court of chancery have decreed a sale
earlier without Heatherly's consent? We are satisfied
that the answer to each of these interrogatories must be
in the affirmative. And is it no delay to creditors to ex-
empt the creditor's property from sale three and a half
months? It might, with the same propriety, be for twelve,
eighteen or twenty-four months. The one is as palpable
A violation of the statute as would be the others!

But the Court say, "in all such assignments some de-
lay is unavoidable.'* This is conceded — but it is farfrom
concluding this case. Sucj^ delay as would necessarily
occur in a prudent and ordinarily diligent execution of
the trust, may not render the deed void ; but we insist
that it is a very different question, from a direct stipulation
in the face of the deed, for delay, for a specified time.
To say that the latter is legal, would, in our opinion, take •

SPRING TERM 1842. 363

from the creditor all option as to the time of collecting CmtrsropHSA

his debt, and place it at the choice of the debtor — one of Oovtnoton
the obvious evils intended to be guarded against by the ^"^™'
statute.

The Court say, in the opinion delivered : '*It is not the
fact of delay, but its character and the motive which dic-
tated it, that is deemed fraudulent in law. It is proved
that the avowed object of the parlies to the deed, for post-
poning a sale, for the prescribed time, was a wish to al-
low time for fattening the stock and maturing th^ growing
crop, embraced in the conveyance, and if this were the
only motive, the delay was not, in our judgment, fraud-
ulent; or in other words, the fact of delay does not, per
se, prove that the deed was made to hinder, delay or de-
fraud creditors." Now we respectfully insist, that a deed
which, upon its face, stipulates for delay, is fraudulent
under the statute, whether the delay be for a long or short
period, or beneficial or injurious to creditors, in the opin-
ion of the debtor. Creditors have a right, at their own
time, to subject their debtors property and determine
whether delay is beneficial or injurious; nor is any other
motive of the debtor, than an intention to delay, neces-
sary to destroy the deed.

Upon what other principle was the case of Ward vs
TroUer, (3 Monroe, 1,) decided. The deed in that case
stipulated that it was made for the purpose of preventing-
his property fiom being sacrificed, and to enable the
grantor to pay all his debts, and recites that his property
was ample for that purpose. Does not such a deedappear
honest and beneficial to creditors, and if such was its
character and only motive, is it not valid under the prin-
ciples laid down in the opinion under consideration? Yet
Chief Justice Boyle, in delivering the opinion in that
case, says, such an intent is evidently dishonest and un-
lawful, and a conveyance made with that intent or pur-
pose is foibidden by the statute against frauds and perju-
ries, and declared void against creditors and purchasers.
In tl^e petition for are-hearing, presented in that case, it
was contended, that "the delay of creditors is not enough
to avoid the deed ; it must have been made or contrived
of fraud, malice, covin or collusion." But the Court

Avir

364 BEN. MONROE'S REPORTS.

C8sx9To»HBB oveiTuled the petition and affirmed the doctrine laid down
Ck>nNOTOH Asjo in the opinion. The same doctrine is reiterated in the
^'"^'- case of Bucklin ys Thompson, (1 /. J. Marshall 226,)
Chief Justice Robertson, who delivered the opinion in
that case, says: '*If a deed on its face, show that it was
made with the design of hindering or delaying any cred-
itors, no matter what may be the actual or ostensible con-
sideration, it is, j;er se, fraudulent as to them." From
these authorities, we contend, that the intent to dday is
itself unlawful, and destroys the deed, whether that delay
be long or short, or for a good or bad motive, and where
that intent is apparent upon the face of the deed itself, it
is intraversible evidence of fraud.
2. The rejected statements of Heatherly —
After the plaintiffs had introduced the statements of
Heatherly, made at the execution of the deed, for the
purpose of showing a good motive for postponing the
sale, and when there was no proof as to when the trustees
had accepted the deed, and that Covington was not a
creditor, and no creditor had requested the making of the
deed, the defendant offered to prove that Heatherly sta-
ted, a day or so after the deed was made, that his inten-
tion in making the deed, was to prevent his property
from being sacrificed under execution; and this evidence
was rejected by the Circuit Court, and this Court, in the
opinion delivered, has sustained the opinion of the Cir-
cuit Court. Waiving for the present, that it was not
competent to intioduce the subsequent declarations of
the grantor, to defeat the title of the grantee, was it not
competent to introduce the statements of the grantor for
the purpose of impeaching his prior statements. The
grantees were not content to rest the case upon the face
of the deed, but called for the statements of the grantor,
made at its execution, for the purpose of showing a good
and lawful intent, and surely it was competent for the
defendant to impeach that statement, by showing that the
grantor made a different one at other times.

But this Court, in the case of Sanders vs Alexander,
(3 /. /. Marsh. 302,) permitted the declaration of the
grantor, made subsequent to the execution of the deed of

SPRING TERM 1842. 366

tmst, to be given in evidence, to show the intention of CHunToraift
the grantor in making the deed. Cotinoton ahb

But the point in the opinion of which we chiefly com- smith.
ploini s that in which it is held, that the plaintiffs had a
right to recover in this action for the conversion of the
negro man, Joe. This writ of error was sued out after
the decision of the case of Pugate vs Clarkson, at the
fall term, and although they entertained a confident opin-
ion that the deed was fraudulent upon its face, yet they
felt, in advising the prosecution of the writ of error, that
the principles settled in that case was conclusive as to
the liability of their client, for tlie price of Joe. The
Court, in that case, after stating that the sheriff had a
right to levy upon the equity of redemption and take pos-
session of the property, say: "His (the sheriff's) ex-
pr^sed determination toT disregard the mortgage, cannot
be judicially recognized as an illegal act, or as sufficient
pn^f that he had violated the law in taking the property,
^or would, in fact, violate it in the sale; notwithstanding
sach declaration, he might sell, subject to the mortgage,
as he would still have the indisputable right to do, &c."

That the creditors, whose executions were levied upon
Joe, had a right to sell the equity of redemption, is not
controverted in the opinion, and is sustained by the case
of MKinlcy vs Combs, (1 Monroe, 106.)

The Court, however, say, that although the l^vy was
legal, "nevertheless we are clearly of opinion that the
Bubsequent tort, in illegally selling, operated by relation
on the original levy, so as to make it an illegal assump-
tion of dominion, and therefore, a conversion (A initio.'*
We find adjudged cases in the books where, in the actions
of trespass and replevin, parties by the illegal use and exer-
cise of an authority, became trespassers ab initio, but
this is the first case, so far of our researches have extend*
ed, in which it has been held that a party can be guilty
of a conversion by relation. Concede that the subse- *
quent conversion shows the original taking to have been
tortious, yet the party compl&ining has waived the tort»
in the form of his action; and surely subsequent evidence
that the party intended a tort, when he took* cannot re*

366 BEN. MONROE'S REPORTS.

Chbistophm suscitate it and make it the foundation of a recovery, or
CoTiNOTON AND evidcnce of conversion.

"""' The conversion is the gist of the action, and the par.

ty's right accrues from the time of the conversion, which
was when the sale was made. But conceding that a party
can be guilty of conversion by relation — to what peiiod
shall it relate in this case? Certainly to the time when the
sheriff formed the intention to violate his duty, by selling
the absolute estate and not the equity of redemption;
and that period is a question of fact to be found by the
jury, and not one of law, and that fact has not been found
by the jury. But we maintain that the fair inference
from the whole testimony in the case is, that Heatherly
was to remain in the possession of the property until the
day of sale, and the trustees were not to take possession
prior to that time. The Court, in the opinion delivered,
concede that the object of the parties in postponing the
day of sale, was to enable Heatherly to raise his crop
and put his stock in order. The whole property convey-'
ed was stock, farming utensils, and Joe; the use of all
which, by Heatherly, was necessary to fulfil the objects
of the parties. If this be true, what right of possession
was there in the trustees when this action was brought?
Even supposing it was doubtful who was entitled to the
possession, that fact ought to have been referred to the
jury, and the instruction given by the Court, at the in-
stance of plaintiffs, was, for that cause, erroneous. This
Court, in the case of M" Isaac vs Hobb, (8 Dajia, 270,) in
remarking upon an instruction, similar to the one under
consideration, use the following language: "It is obvi-
^ ous that the instruction disiegards the question, whether

at the time the negros were taken, they were in the pos-
session of the mortgagor, and if so, whether they were
there by any arrangement with the mortgagee, which may
have deprived him or those claiming under him, of the
right of immediately re-taking the possession. And as
the evidence conduced in some degree, to prove that the
mortgagor was in possession under such arrangement, the
termination of which is uncertain ; and as, moreover, it
is a fundamental principle of this action, that the plain-
tiff must, at the time of the taking, have had the posses-

SPRING TERM 1842. 367

sion, or the immediate right to possession, the instruction Christofhbr
is clearly erroneous, either in assuming the fact, that the Covington a»i>

mortgagee, or some one claiming under him, had the pos- ^ — '■ —

session, or the immediate right of possession, which the
Court had no right to assume, or in declaring whatever
might be the fact in this respect, the plaintiff or mort-
gagee had a right to recover, which is incorrect in point of
law."

With an authority so conclusive upon this question, we
pass to the 5th and last proposition intended to be dis-
cussed, viz: Can this action be maintained against a de-
puty sheriff for a conversion, by virtue of his office and
under legal process.

This question was not discussed at the bar; is not no-
ticed in the opinion, but is one well worthy of consider-
ation.

That the high sheriff is answerable for the conversion
complained of, is too clear to admit of doubt: See Com-
monweaUh for Davy vs Stockton, (5 Monroe, 193,) and
the authorities there cited ; Moore's adm*r, vs Downey,
^. (3 Hen, and Munford's Reports, 127,) and the au-
thorities there cited.

Where the action is founded upon a breach of the duty
of the office of sheriff, it must be brought against the
principal and not the deputy, though it be for the default
of the latter: Oirens vs Gatewood, (4: Bibb, 494;) Cam-
eron v$ Reynolds, (CotDpers Reports, 406.) The high
sheriff is alone liable, (I WashA59.)

The levy and sale in this ease, was under legal process
and by virtue of the office of Christopher, as deputy sheriff.
He had legal authority to levy and take possession, and if
liability attaches, it is for selling a greater interest than he
had a right to sell. A re-hearing is asked.

Owsley & Goodloe.

Response

By Chief Justice Robertson.

There can be no doubt upon either reason or authority,
that unless Heatherhfs intention in making the deed was

368 , BEN. MONROE'S REPORTS.

Chribtophbb (o delay his creditors, the conveyance was not made to

GoYiNGTON AND dclay thcm, and there can be as little doubt that the short

'''™' limitation prescribed for the sale of the property convey-

ed, was not, in itself, fraudulent, under the statute or
otherwise, it can only operate as some evidence of a
fraudulent intent; but unless the object was to delay
creditors, the temporary restriction on the power to sell
was not fraudulent — this is proved even by the cases
cited in the petition,
m short period In Ward et al, vs Trotter d al, (3 Mon. 1.) oneM

of three months _ . ^ ^^. i n i . . - i> i

delay of a sale, ly conveyed to Ward all his estate m trust for pieferred

Stten'^stock and creditors, with power to sell after one year, reserving to

™^cro 'to'seii ^^^ grantor the use of the property, and the right of dis-
for the benefit of posing of it or any of it with Ward's consent, without

in itself *{mvLdiVL' any Other Ostensible or presumable motive for either the

stotutS^^Yt can Conveyance or the delay of sale, than a wish to prevent

only operate as ftfs crediiors from Selling his propenty for less than it was

«ome evidence of , . , ? . » 7 i . *^ , j» , ^

such an intent worth, which was avowcd m the deed itself as the object of

the incumbrance. And, in that case, this Court said
that "it is, in fact, the intention which makes a deed
fraudulent," and decided that the avowed intention of
Kelly's conveyance should be deemed fraudulent, because
his purpose, as avowed, was to delay^ his creditors, and
prevent them altogether from selling his property unless
it would sell without sacrifice. It was not the restriction
as to the time of selling, but the motive of the convey-
ance itself, that is to hinder and delay creditors, which
this Court adjudged illegal and fraudulent.

And in the other case cited in the petition, the same
obvious principle was recognised, for this Court virtually
said in that case, that it was not a delay in the remedy
of creditors, but the illegal intention to hinder or delay
them which was fraudulent in law.
This case h dis- And SO we say again in this case ; the postponement
ihlu^o? w^JdS of*® sale for about three months was not, per se, fraudu-

a/' Ts ^0^ n ^®"^' ^"^ ^f *® ^^J^^^ °f making the conveyance or of
where Uie object thus limiting the power to sell, was to delay creditors^
lificrofVopor- then, in the language of the statute, the conveyance was
in Sffire'^of "^*d® with the 'Hntention to delay'' them, and was con-
the deed. sequently illegal and fraudulent; but the motive, as an-

. nounced in the deed, was not, as in Ward a (d. vs Tmt^

SPRING TERM 1842. 369

ier d al., to prevent a sacrifice of the property, but to CmiaropBER

secure to aU creditors pari passu^ the utmost amount Cotingtom ahd

that the property could, by obviously prudent means, be """^ —

made to produce. This Court has never said, nor can
ever say, that such an intention as that manifested on
the face of Heaiherly's conveyance proves, as a matter
of inflexible law, that he made that conveyance with the
fraudulent intent to delay his creditors. No enlightened
Court has, so far as we know or believe, ever so said,
and this point has been expressly adjudged in Yemon et
al vs Morton et al, (6th Dana, 247, 265.) The ques-
tion was one oi intention in fact, which the jury alone
had a right to decide. The jury in this case decided
that there was no fraudulent intention; and we are still
of the opinion that the facts, all of which are not allu-
ded to in the petition, authorized the verdict.

There was no proof that the debt to the trustee, as de-
scribed in the deed, was fraudulent.

Nor can we perceive why that which would, as ad- Where the
initted in the petition, have made the Sheriff liable for a amoanta to"^
trespass in taking Joe under the execution, did not make Ij^ ^JJJJ;* ^^^J
him liable for a conversion, if, as they elected to do, the the uespase end
persons injured by his tortious act chose to waive the converaion.
trespass and sue only for the conversion; in this case as
in an action of trespass, the taking furnished a cause of
action, because the subsequent sale proved that the cap-
tion by a levy which, without such sale, would have been
an equivocal act, was in fact tortious, or in other words,
for an unlawful purpose.

We are still, therefore, of the opinion, that this acticyi
was maintainable for the slave Joe, as well as for the
other property sold by the Sheriff; and we suppose that a ^nty eheriff
the fact that Christopher was a deputy sheriff, should not ^ "^cww fttm
shield him from personal responsibility in a Court of bifToiantaryand
Justice for his own voluntary and tortious act. ' n»»ci«.

We have neither time nor disposition to respond on
other points — our opinion remains unchanged on the
whole case.

And, therefore, the petition is overruled.
Vol. IL 47

370

BEN. MONROE'S REPORTS.

Chancery.
Cnsc 120.

May 13,

A coatract be-
tween hasband
and wife for sep-
aiatlon being a-
gainst public pol-
icy, snould not
be enforced by
the Chancellor
on her bill for
that purpose.

Tho' the time of
abandonm't may
not have author-
ized any decree
when the origin-
al bill weu<» filed,
yet if before the
filing aa amen«
ded bill the a-
bandonment haa
been sufficiently
long to authorize
a decree of di-
vorce a mensa et
thoro and for ali-
mony, it may be
decreed.

The father pur-
chased a tract of
land worth 1200
dollars, convey-
ed it to his son,
who le-conveys
it to the father
and afterwards
marries and-sep-
aratea from his
-nrife ; she files
her bill for ali-
mony and di-
vorce ; without
proof other than
the mere rela-
tionship, the
Chancellor will
not be authoriz-
ed to declare the
jroperty thus
;la by the fa-

McCrocklin vs McCrocklin.

Appeal from the Louisville Chancery Court.

Alimony. Divorce.

Chief Justice Robehtson delivered the Opinion of the Court.

We concur with the Cancellor in the opinion that the
contract of separation between Jesse McCrocklin and
his wife should not be enforced by decree, on her bill
filed for that purpose, such contracts being generally in-
consistent with public policy, and there being no proof
in this case that there was any such cause for the sepa-
ration as would have authorized a court of equity to de-
cree a divorce, or would have justified a voluntary sepa-
ration by contract.

And we concur with the Chancellor also, in the opin-
ion that, upon the alternative prayer for alimony, on the
ground of abandonment by the husband, continued for
more than a year before the filing of the amended bill in
which that prayer was made, may authorize a decree for
a divorce a mensa, and for alimony, there being no proof
that the abandonment was justified, or could be excused
on any legal ground.

But we cannot sustain the decree for alimony as ren-
dered against William McCrocklin, the father of the
said Jesse, as trustee of the land which the said Jesse had
conveyed absolutely to the said William before his inter-
marriage with the complainant.

William having bought and paid for the land, had it
conveyed to Jesse; sometime afterwards Jesse conveyed
it absolutely to William, reciting as the consideration,
$1200, which was the price which William had original-
ly paid for it. William and Jesse both asseverate in their
answers, that this conveyance was thus made because
Jesse was unable to refund to William the said sum
which William had so paid. The conveyance is express-
ly made to William's exclusive, absolute, and beneficial
use. It intimates no trust — and even if it had been
made without any valuable consideration, still, as it is

SPRING TERM 1842. 371

made to the grantee's use, there can be no resulting or McCkocklik
implied use to the grantor, as between those parties mere- McCrqckhn-.
Iv, and there is no extraneous proof of any such trust; ther a trust, and

. I. .1 . .1 1 1 • • 11 decree allmoDy

there is even no proof that the land was originally con- to the wife out
veyed to Jesse as an advancement; but if it might be ^J^{^ ^^'°^^
presumed to have been an advancement, that fact would
not tend to show that his conveyance to his father was in
trust for himself.

The contract of separation by which the said William
was made a trustee, and to which he was a party, cove-
nants that he may sell all Jesse's estate, real and person-
al; and it is true that the proof tends to show that Jesse
had no real estate, unless he had some equitable interest
in this tract of land.

But it is said that a lawyer drew that document without
any special instruction, and used the expressions "real
and personal estate** as presumed, inadvertently, or
through abundant caution, without knowing the character
or extent of Jesse*s estate ; and this is not at all improb-
able, for, had the parties intended to include this tract of
land, the omission to identify it in the deed of separation
and trust was unaccountable, and especially as it seems
to have been worth about four times as much as the per-
sonal estate which Jesse did own, and the more espe-
cially, also, as William McCrocklin held an absolute
conveyance of it from Jesse, and the latter had neither
written nor oral evidence of his being entitled to any in-
terest in it.

Such expressions in such a document cannot, in our
opinion, establish a trust as to the land between William
and Jesse.

Nor is there any proof of fraud on the complainant's
marital rights, for it does not appear that Jesse McCrock-
lin even knew her at the date of his conveyance to his
father; nor is there any evidence tending to show that
she was ever induced to believe that the land was, in
any sense, Jesse's.

We cannot, therefore, perceive any sufficient ground
for deciding, as the Chancellor did, that William holds
the land in trust for Jesse or his wife, and therefore de-

372

BEN. MONROES REPORTS.

BowLU H aL

Saxb

■ va

Cl.AEK.

ereeing against William the payment of alimony out of
the profits.

The decree against William McCrocklin is, therefore,
reversed and the cause remanded for such decree, as be-
tween the husband and wife, as may be equitable; al-
though he may own little or no property, that fact alone
might not absolve him from his duty to contribute, even
by his labor, something towards the maintenance of his
wife and infant child in her possession, and with his
consent, under her care.

Grigsby for appellant

CHiNCERT. Bowles et al. vs Schoenberger, and Same

vs Clark.

Cast 121. Appeal from the Louisville Chaijcery Court.

Mortgages. Parties. Chancery.

Chzbf Justice Bobbbtsom deliyered the Opinion of Uie Court.

As these cases seem to have been consolidated, they
ViiW be considered in this Court as one case.

G. &; J. H. Schoenberger & Co., who filed the first
bill attaching the estate of McCIerg, mortgaged to Bowles,
did not charge that the mortgage was fraudulent. They
prayed however, for an account and settlement between
the mortgagor and mortgagee, and either a foreclosure or
a sale of McClerg's interest; but no satisfactory basis
for an account and foreclosure has been presented. Evea
the names of the creditors to whom Bowles is alledged to
be liable as McClerg's endorser, have not been disclosed,
although Bowles and McClerg were required, among
other things, to identify those creditors.

Nor is it shown when these notes or bills were drawn «
or when they became due, or who is now entitled to them,
nor why they have not been paid, nor that there is any
probability that Bowles will be compelled to pay any
thing on account of them, nor that he has not ample
available means in his own unpaid notes to McClerg, for
indemnifying himself. What then were these complain-

May 18.

Two biUs are fil-
ed by creditots
against mortga-
gor and mortga-
gee requiring an
account between
them and a sale
and decree for
the remainder of
the proceeds of
the mortgaged ef-
fects—-the first
charges fraud,
the second does
not, the suits are
consolidated; the
charge of iraud
made in the sec-
ond shall inure
to the benefit of
the complainant
in the first

' SPRING TERM 1842. 373

ant3 to do? They could not force a foreclosure wilbout Bowuu «( al.
making the holders of the alledged notes parties; they schoinbcsoss.
could not make them parties because neither McCierg ^^
nor Bowles would disclose even their names. Must ^^^'^-
they then wait indefinitely and in the dark, and may
those alledged notes, even if yet unpaid, be renewed in-
definitely, and the mortgage thereby continued as an in-
eombrance as long as the parties to it shall choose, and
when too, the mortgagee has paid nothing for the mort-
gagor and owes him largely? Had this been the only
bill might not the Chancellor have decreed, therefore,
that this mortgage, under these circumstances, should
not be considered as a subsisting incumbrance in equity,
and that therefore, these attaching creditors should not
be obstructed by it?

But as both bills progressed jtari passu as one case,
and were understood and intended to be but one, the
Schoenbergers are entitled to the benefit of the charge of
fraud in the bill of Clarke; and if that charge be sus-
tained, then there is certainly nothing in the mortgage
which can entitle Bowles to any priority over any credit-
or of McClerg, or to any foreclosure of his mortgage as
against such creditor; and thus the Schoenbergers would
be entitled to a decree, even on their prayer for a settle-
ment between mortgagor and mortgagee, and a decree
for a sale of McClerg*s interest as available on such set-
tlement.

And it does seem to us, that, presented as the morL xhe mortmee
caee now is, it should be deemed merely colorable, not jnauoiicaseftii-

Trt ij'^'Ajii ing to exhibit ihe

only for the reasons already intimated, but because, also, claims and iia-
tbe consideration is loosely and rather indefinitely ex- ?d^be^sec^^\°dbj
pressed, because it refers to a bond of indemnity for ^nd Bh?wi*4*wl
1^,000, which would probably disclose the true state of unwillingness to
case as to the alledged liabilities, and that bond has not disclose thebai-
been shown, and because the mortgage was never given gMe"heW*to°be
until 1839, was not then sought by Bowles, and he seems ^^ colorable.
not then to have even known that he was still liable for
McClerg, or exactly how or to what extent; and there is
no satisfactory proof that his indorsements' were not
made whilst he was McClerg's partner, or that all that

374 BEN. MONROE'S REPORTS.

DicKBirs matter was not settled between them when Bowles ex-
Williams et ai. ccuted to McCIerg his notes for $'23,000.

Bat there is a supplemental consideration which is per-
suasive^ why do both Bowles and McCIerg seem unwilling
« to adjust the alledged liabilities and foreclose the mort-

gage, if any portion of them shall necessarily, or in good
faith, finally fall on and be discharged by Bowles.

We are, therefore, of the opinion that the decree as to
all parties should stand; and it is consequently affirraed.
Pirtle for appellant; Loughborough for appellee.

Covenant. Dickens VS Williams et al

Case 122. Ebror to the Henry Circuit.

' Covenants. Damages, Evidence.

May 14. Chief Justics Bobbktson deUTered Uie Opinion of the Court

Alt affirmation in Thb affirmation ill the bill of sale of the Jack, that it
a jack^^that "he ^^^ "a good and sure foal getler/' imports a covenant
JaiJfoiretter- ^^ warranty that it was so: DUlo vs Helm, (2 /. J. M.
imports a cove- 129.) Such expressions in a written contract, when

nant of warranty t^ j • xi_» i_ *!.• i ^i •

that it was 30. unqualified as in this case, by any thing else therein,

should be deemed a part of the contract, and therefore
stipulatory; thereby the vendor, of course, agreed that
the jack was as described, and consequently that agree-
ment was a covenant to that effect.
In snoh case Proof that the jack was altogether impotent during the
SJid^iI?Jan. was whole seasott succeeding the sale in January, was not in-
irapotent duiing admissible or irrelevant; it tended strongly to prove that
ceeding^^ season, it was not a good or sure foal getter when sold, and the
ten^° or^SrSe^ more especially when connected with the other j^oof of
^^^^ the vendor's admission as to the capacity of the jack be-

fore and at the time of the sale. Indeed, without such
proof as to subsequent trial, it would have been dif-
ficult, if not impossible, for the covenantee to have re-
covered.
Nor can we judicially decide that the verdict for the
extoaf^of the whole price paid for the jack, and interest thereon, was

SPRING TERM 1842. 375

exorbitant ; because, sach a jack as tbe juiy had a right ^^"^
to infer this was, must be wholly worthless. Lewis.

Korean we reverse merely because the jury was sworn price paid in

/« try the issue, and the record does not show expressly not be^^excS^

p^hat the issue was. There can be no doubt as to the '^^^®-

effect of the issue; and the defendant who filed a plea on This Comt wiu

v^hich that issue was formed, cannot, therefore, complain fnstanMMjf def "t

tlat the record does not show the form of the issue. |!fi°^' !1^!!L!^

jury were sworn

We will not presume in his favor, that the issue was er to try the issue,

iber immaterial or did not justify the finding. the record does

Judgment affirmed. ^%ss\y what S^e

Harlan ^ Craddock for plaintiff; Morehead 4^ Reed wsuew"-
for defendants.

Faris vs Lewis. Case.

Appeal from the Washingtoit Circuit. Case 123.

Fraud, Special damage. Variance, Excessive damage.

Cbikp Jdstice Bobebtson delivered the Opinion of the Court. May 24.

h an action on the case, for both general and special j^ie case stated.
damages, resulting, as averred, from the fraudulent sale
by the defendant to the plaintiff, of a glandered horse,
verdict and judgment were rendered for $127 50, equal
to about the value of the horse sold and of that of two
other horses of the plaintiff, which died of glanders com-
municated by that horse, after his purchase of it, and also
the legal interest^on the aggregate of those values. And
the first and principal question for revision is, whether,
admitting the fraud which seems to have been sufficiently
proved, the loss of the plaintiff's other horses was such a
natural and proximate consequence of the sale and deliv-
ery to him of a horse known by the vendor to be afflicted
with a contagious disease, as authorized a recovery for
that special damage.

It seems that the parties resided in the same county,
and that the plaintiff purchased the horse for use on his
farm. The communication of the contagion to other
horses with which the distempered horse must have been
expected to be associated in domestic use* until the pur-

376 BEN. MONROE'S REPORTS.

Paris chaser had become apprised of the existence and true
Lewis. character of the distemper, should be presumed to have
" been known by the fraudulent vendor, to be a probable
and natural consequence of his sale of such a horse to
such a man, and for such use; and consequently, the spe-
cial damage which did so result to the purchaser, should
be considered as wantonly inflicted by the vendor's fraud,
and of course should be deemed in law, as well as in
fact, an injury for which damages might be recovered
as certainly as they could have been had the vendor
directly inoculated the vendee's other horses, instead of
' doing it indirectly, through the instrumentality of the dis-

eased horse, which he fraudulently sold to him.
The true principle of the common, as well as of the
A vendor of a civil law, is th US illustrated by Po/^fer: "If apersonsells

hoTfle aod know- ,.i,i i.r. i

ingitto be dia- '*me a COW, which he knows to be mfected with a con-
contagious dis* "iagious distemper, and conceals this disease from me,
lo^Sfscios^r^ihe **such concealment is a fraud on his part, which renders
fact to vendee, is «*him responsible for the damage that I suffer, not only
the injury to, or **in that particular cow which is the object of his original
horses °of °ven- * 'obligation, but also in my other cattle, to which the dis.
the' diseas^^^^s '*^^^?^^ ^^ Communicated, for il is a fraud of the sdUr
communicated. « * which occasions this damage, * *

This principle has been frequently recognized in Eng-
land and the States of our union: See Nurse vs Barnes,
(T. Raymond, 77;) Mainioaring vs Brandon, (8 Taun-
ton, 202;) Borradaile vs Brunton, (lb, 535;) Neale vs
Miller, (3 B. if Cr, 533;) Jeffrey vs Bigdow et al. (13
Wendell, 518.)

In Nurse vs Barnes, a lessee of a mill, who was not
permitted by the lessor to occupy and use it, recovered
£500, the price of stock he hftd laid in and had lost ia
consequence of not getting the mill according to contract.
In Barradaile vs Brunton, the purchaser of a chain
cable, warranted to be sufiScient for the anchor of a ship,
recovered damages, not only for a defect in the chain, bat
for the value of the anchor which he lost in consequegce
of that defect.

And in Jeffrey vs Bigelow et al, the agent of the de-
fendants having fraudulently sold to the plaintiff a flock of
sheep which had the scab, and communicated it aAer the

\ SPRING TERM 1842. JTT

purchase, to a portion of another flock of the purchaser, '^"

he recovered against them damages for the injury thus re. Lbwii.
salting to him in his original flock, as well as in the pur-
chased sheep; and that recovery was sustained by the
Supreme Court of New York.

In all these cases the principle is the same, and that is, '
that a vendor is legally responsible for all damage result- V.
ing to his vendee as the necessary or natural consequence ^^
of the vendor's fraud or breach of contract. And that
reasonable and well established principle applies clearly
and conclusively to this case, and sustains the verdict for
the special damages as sued for and proved.

Another question involved in the record is, whether the a purchaser of
plaintiff had a right to recover the price of the diseased paid^mT part* o^
horse which he bought from the defendant, and which was ^tn/'defrauded
of no value: and we are of the opinion that he had no « the purchase,

.1.1 111 •! .i»i .i.j tenders back lh«

such right; because he had paid no part of the stipulated horse, suein^ for
price, and having, by a renunciation of the contract damages* rcsuU-
within reasonable time after, the discovery of the fraud, JP^^^ ^camiot w*
virtually rescinded the sale, he could never be compelled cover the vaia*

... A- i» 'x of the diseased

to pay the price or any portion of it. horse, as by the

The next question is, whether the Circuit Court erred ionuL^talt «
in overruling a motion for a non-suit, made on the ground ^i^^-
of a variance between the contract of sale as described
in the declaration, and that which was proved. The only
variance was as to the consideration — the declaration
describing it as the wood work of a wagon, and the proof
as the wood work of a wagon and eighteen chairs.

Although the action is not either for enforcing the con- AiUiough an ao-
Iract or for recovering damages for a breach of it, yet the enforchig'a *con-
allegations and proof respecting the contract, should cor- co*^jji°J' ^l^lt
respond sufficiently to make the judgment in this case a iy, for breach
bar to any future suit for the same cause. But we are of for^ conaequen-
the opinion that, notwithstanding the slight variance in Ju/u^'^i't
the cause of action aa specially alledged, and that which S*J^ation'*' end
was proved, there was such a substantial identity aslto proofofitshoaid
jillow no reasonable doubt that they are the same ; and ^**"®*^'*
consequently, in our judgment, the Circuit Judge did not
err in overruling the motion for a non-suit.
The only remaining question is as to the amount of the Allegation Uiat

verdict and Judgment. It is almost certain that, in as- tion to^^be' pafd
Vol. II. 48

378 BEN. MONROE'S REPORTS.

Bakk Of nil sessing the damages, the jury included the value of the
ve horse sold by the defendant to the plaintiff, and legal io-

. 1— terest on that value, and on that also of the other horses

houghtwJ^'^ihl to which the glanders were communicated. It, therefore,

that it was "the ment should not be sustained. There was no proof of

wood work o£ a •

wagon and 18 actual damage from the keeping of the diseased horses,
■uch'a'aubstan- ^^ *^® ministration of any curative means to them,
tiai variance as As, therefore, the verdict seems to have been illegallf

to aathorize a ° '

nos-suit. compounded, and consequently to have been excessive,

the judgment is reversed and the cause remanded for
a new trial.

Dmriess and Hardin for appellant ; MHenrif for ap-
pellee.

Motion. Bank of the Commonwealth vs Patterson.

Case 124. Error to thb Russell Circuit.

Motion, Release of surely on replevin bond.

May 26. JirsffB Masshatj. delivered the Opinion of the Court.

The 19th sec. of It seems to this Court that the 19th section of the act
T^^^f^tutl of 1828, relating to executions, (Stat Law, 646.) which
Zmw, 646,) ap- releases a security in any bond havine^ the force of a

plies 83 well to . , 1 I. .1 ^1 1 . .^ , .X

the issae of a judgment on the failure of the plaintiff therein, at any
Smafteroncfhas t™® for the space of twelve months after execution is
a'TO^ieWrTbond ^^® ^^^* *^ ^^^^^ execution thercoh, bona )Ue, wiiha
as to the first: a view to the collection of the debt, applies not only to a
months at any failure to issue execution for twelve months immediately
cSto/*"® m1|ht after the. bond falls due, but also to any failure for the
j^ave issued, re- same length of time to issue a subsequent execution at

leases the surety " * . r j

in replevin bond, ter a previous One has been returned and not satisfied;
Sving the force for not only is there the same reason for the release of the
«f a judgment security in the latter case as in the former, but as upon

the return of one execution not satisfied another execu-
tion is due the plaintiff on the bond, this case, as well a^
the first, comes substantially within the terms of the stat-
ute. Nor is the case changed, in our opinion, when the
previous execution is levied on property of the principal,
«nd the plaintiff fails for a year to issue a venditioni ts-

SPRING TERM 1842.

379

ponas. The statute mukes no exception from (he de-
clared consequence of the failure to issue execution fox
twelve months, but in case of such failure being caused
by a supersedeas or injunction; and certainly the failure to
compel a sale of the goods of the principal actually taken
in execution for a year, in which time they may perish or
be lost, would seem to furnish as just a ground for the re-
lease of the surety as the failure to seize such goods for
the same period. '

In this case there appears to have been a suspension of
all means for compelling a sale of the property levied on»
lor two or three years, from 1834 to 1836 or 1837, and
on the subsequent vendilioni exponas, no sale was effect-
ed; but the Sheriff in his return states that the property
was returned to the defendants, and it does not appear
that the suspension of execution, as above stated, was oc-
casioned by supersedeas or injunction. Under these cir-
cnmstances we are. of opinion, that the security was re-
leased, and that the Court did not err in directing the
Clerk to indorse that fact upon the subsequent execution
and upon all executions which might afterwards issue, as
provided for by the statute.

Wherefore, the order and judgment of the Court, di-
recting said endorsement, is affirmed.

Gates Sf Lindsey for plaintiff ; Owsley <f Goodloe for
defendant.

Brahiko*.

Fish V8 Branamon.

Error to ths Rockcastlb Circuit.
Trespass quare clausum fregit. Possession of land,

Ckbv Juvticb Bobbbtbon delirered the Opinion of the Court.

As the tract of land on which the plaintiff in error
has resided for many years, and that purchased by him in
1838, are co-terminous, the presumption of law as well
as of fact is, that the purchase of the latter tract was
intended, and therefore operated as an extension of the
bomestead co-extensively with the limita of both parcels

Tkrspabs.
Case 126.

One vrho par-
chased land ad-
joining to that of
which he is in
the actual po»*
session, is con«
straotiTely in
possession to
the extent of th«

BEN. MONROE'S REPORTS.

BsAaHBAB et at,

>■ — ___— ■

boundaiy of both
tracta; and one
who. enters on
that possession,
and builds a cab-
in and locks it
up, is not pos-
sessed beyond
the actual close,
■and trespass can-
not be maintain-
ed by the latter
against the for-
mer for cuttinj^
limber on land
in his own ac-
tual possession.

united into one entire possession. There is nothing in
this case to repel that presumption.

Then the building of the eabin by the defendant in
error, .since 1838, within the limits of the tract purchas-
ed in that year by the plaintiff in error, was an intrusion
on the constructive possession in fact of the latter; and
consequently, as the defendant in error proved no deriva-
tive or other title in himself paramount to that of the
plaintiff in error to any portion of that tract, his pos.
session, by the building and locking up of the cabin, if
constructively continued at all, must, according to the
only legal deduction from the facts as exhibited to this
Court, be deemed to have been restricted to his actual
enclosure. He could not, therefore, maintain this ac-
tion of trespass qua. clau. f regit against the plaintiff in
error for entering and cutting timber on land in his own
actual possession, and which, therefore, he appears to
have had a legal right to enter on and use as he did.

Consequently, as the verdict and instructions by the
Circuit Judge, on the trial, are inconsistent with the fore-
going conclusion of law from the facts, the judgment for
the defendant in error, on that verdict, must be reversed
and the cause remanded for a new trial.

E. Smiih for plaintiff.

Cha5«sby.
Cast 126.

May ^6.
The case staled.

Barnes' Adm'r. vs Brashear et al.

ApPEi^L FROM THE BrECKINBIBGB CiRCUIT.

Proof of wills. Executors and administrators. Foreign

executors and administrators.

CsiEr Justice Robbrtson delivered the Opinion of the Court

Samuel C. Barnes, a citizen of Kentucky, domiciled
in Breckinridge county, died in May, 1839, in the State
of Mississippi, whither he had gone on a trading and
collecting expedition. The most of his personal estate
remained in Kentucky when he died; but he had with
hhn at his death a promissory note for about $900, on a
citizen of Kentucky and two citizens of Indiana, and

SPRING TERM 1842. 381

some other aiticles of personalty which he carried with Bahwm' adm'h.

Aim. Brasbear et aL

AboQt six months after his death one Heavern, as ex-
ectUor, procared probate in the State of Mississippi, of
a document written after his death and purporting to be
a nuncupative will, and appointing said Heavern execu-
tor, with express power to dispose of all his estate as he
might deem best.

Heaoem, immediately after Barnes' death, took pos-
session of the said note and other movables of the de-
cedent in Mississippi, and seems to have assigned the
note to one Brashear before the probate of the nuncu-
pative document.

Armstead Barnes, having been qualified as adminis-
trator of the decedent in the County Coutt of Breckin-
ridge, in this State, filed a bill in Chancery against Bra-
shear as ostensible assignee of the said note, and against
the obligor therein, who resided in the said county, pray-
ing for a decree compelling payment to himself as the
only person legally entitled thereto.

The debtor in his answer, agreed to pay the amount
of the note to a receiver who was appointed to receive
and hold it subject to the final decree s*tling the con-
flicting claims of the administrator and Brashear.

Upon final hearing, the Circuit Court dismissed the Decree of the
bill and directed the receiver to pay the money to Bra- Circuit Court
shear, upon his cross bill praying for a decree therefor.

The administrator now seeks the reversal of that de-
cree, and his counsel has urged many grounds of lever-
sal which cannot be sustained; but there is nevertheless,
in our judgment, one gromid sufficient for reversing the
decree, and that is, that there is no legal proof of a val-
id will, or of any authority therefore, in Heavern, to as-
sign the note, or otherwise to dispose of any of the chat-
ties of the decedent.

Whatever diversities may have once existed, or may
still exist, in some other countries, it is now a well set- dispMiSoii^'^of
tied docfrine of the international code of comity here mo^*^!® ^ prop-

j . -n t J • 1 . n ®'*y^ must, to be

and m England, that a testamentary disposition of mov- valid any where,
able property must, to be valid any where, be made ac- u^ uT ihe^iocai
cording to the local law of the testator's domicil at the {j^^f^^ ^d*om\*Si

382 BEN. MONROE'S REPORTS.

Bamsm* Ai>ii'K. time of his death: Stanley vs Barnes, (3d Hagg. Bed.
Bkashbab et ai Rep, 373 to 465;) Desebais vs Berquier, (1 Binn. Perm,
at the time of -R«p. 336;) Holntes VS J?em3en, (4 /o/tn. Cfey. Bep,
hiB death. 460-9;) ffflfTcy vs Richards. (1 itfasan'* iiq). 381;) Bis-

on's ex'ors. vs Ramsey's ex'ors, (3 Cranch's Rep. 319;)
Polinger vs Wighiman. (3 Meriv. 69;) jEfuber de Con-
^idu Legum; Story on same, 391-S; Robertson on Suc-
cession, 191-3, 309-10-11. Aud these citations cle«^
ly prove that testamentary succession to movables, like
distribution ab intestat, should be determined ex comi-
tate, every where by the law of the testator's domicil.

Then, were it admitted that the Probate Court in Mil-

sissippi had jurisdiction for any purpose or to any ezteat,

still, as there is neither proof of probate in Kentucky,

nor any other evidence of a testamentary act than the

fact of probate in Mississippi, there was no proof in this

case of a valid will according to the law of the decedent's

domicil; for surely the mere fact, as certified, that a nun.

cupative will had been proved and admitted to record in

Mississippi, cannot be admitted as sufficient to show that

such a will had been made and proved, as prescribed hj

the law of Kentucky.

A certified copjr When the use of such a vitil as cannot be effedud

iiYe^ wm^^v^T- ^^^^> unless made according to our local law, becomes

propeftyln^Ky J^^cessary as evidence here of a testamentary right, a

proved and re- probate in a foreign forum may authorize a copy to be

is not sufficient provcd and admitted to record in this State, as prescribed

Mch"a°wiiih^ by our statutory law; but such copy, however certified.

^roycd**a* th^ ^^ ^^^' ^^^ ^' ^^^ pioof of the valid execution of any
&W8 of Ky. le- such will. This seems to us to be plain, if not indispu-
^^"•- table, and this Court has so decided in the case of Cv-

michael vs Elmendorf et al. (4: Bibb, 484.)
A devise of land ^^ ^^at case it is true, the question was, whether a
foSuaf ^ uSiew ^^y ^^ ^ P*P®' purporting to be a devise, made in a for-
made and proved eigQ State, of land in Kentucky, and certified from a

aocording to Ihe , . <•!<•.« j

Um loci rei acita, piobate court of the foreign State, as having been piovea

and recorded in that Court, was admissible as proof of
such a devise as passed the land according to our local
law; but the obvious principle properly recognised in
Ihat decision is equally applicable to this case: That
principle ia ^is-^that as a devise of land will not be ef-

SPRING TERM 1842. 385

ffe ctnal unless made and proved according to the lex loci BabwW adm'«.
r^ scila; therefore, the simple fact that it was adjudged, b&asiuab a oL
&s sufficiently proven according to the law of a different
sovereign, and in a Court unacquainted with the law of
the siiuSt cannot be admitted as sufficient proof to au-
thorize a Court of the country where the land lies to de-
cide that there had been a legal devise of it. In this case,
as the nuncupative will must be void unless made and
proved according to the law of the domicil, (Kentucky,)
consequently, for precisely the same reason as that which
controlled in Carmichad vs Elmendorf ei aL the probate
in Mississippi cannot be admitted to be sufficient proof
of such a testament as will be valid according to the only
law which can determine its validity, and as to which the
foreign Court cannot be presumed either to have adjudg-
ed or been competent to decide. The only presumption,
in this respect, authorized by the probate in Mississippi,
is, that the Court which granted it considered the evi-
dence sufficient to prove that testamentary words had
been uttered, and afterwards reduced to writing according
to the law of that State, But this does not prove or
tend to prove a nuncupative will according to the law of
Kentucky.

We are, therefore, of the opinion that there is in this AnnnenpatiT*
case, no proof of any will legally valid in this Slate, and re^accordfnJ'to
consequently, as according to the principle established ?e law of the

, i. . ...11 . II. domicil of the

by the foregomg citations, the document recorded in devisor, cannot
Mississippi must be deemed void every where, unless it suflScienf^ro"
shall be shown to be valid according to the lex domiclii: Jfent^^ ^**'*'
the record from Mississippi shows no legal authority in
Heavtrn to dispose of the note, by assignment or other-
wise, so as to affect the title thereto.

And, waiving, as we must therefore now do, the al- Anuncnpatira
Icdged will, we have no doubt that the domestic admin- J^llto*' m'*"i:^*
istration is legal ; and we are of the opinion also, that proved in Mias.
the complainant, as administrator, may be entitled to here upon tho
collect the amount of the note although it was in Missis- pr^^^a^ ^^
sippi when the obligee died — ^first, because it neither ap-
pears, nor should be presumed, that there is any auxiliary
administrator in Mississippi, nor is there any suggestion
or presQinptioQ that there are any creditors of the dece-

384 BEN. MONROE'S REPORTS.

Barnes' Adm'h. dent in that State, for whose benefit such an adminis-
Bhashear et ai. trator could claim a prior right to administer on the note—

and 2dly, becfiuse the note, being now in this State, im-
pointed^n^'Ky! po^^cled in this suit, and neither Heavem nor Brashear
U) one who, iho* having manifested any right thereto, the Court shoold

a citizen of ... <. » i • ■ ?

Kentucky, died not permit either of them to abstract it or the amount of
icgS'*^right to ^^» ^"^ cannot transmit it or the amount of it (collected
due to^the int's- ^^ ^^® receiver,) to Mississippi, where it does not appear
tate, iho' it was that any creditor of the obligee, or any person entitled
possesbion in to it either resides or asserts claim to it, or would hare
dllait?nS'f^gil a^y authority to make any appropriation of it. Therfr
"'or or adm'r fore, as'the domiciliary administrator is the onlypersofl
Tight. who seems to have a light to collect and appropriate th«

amount of this note, the Circuit Court ought to have di-
rected the receiver to pay it to him. And, consequently,
no question as to locality of assets or priority of title
thereto being now material, it is, of course, not necessa-
ry to decide whether, in a contest betweein an ancUlanj
' *■ • ■

administrator in Mississippi, and the principal adminis-
trator of the domicil, the note should be adjudged to the
latter as as^ts which he would have the probable right,
in the first instance, to control. But had the nuncupa-
tive will been established in this case, the assignment
by Heavem, as executor, deriving express and plenary
authority from the will to dispose of all the goods of the
decedent, might have passed a legal title to the note,
stripped by actual sale, of its pre-existent character as
assets. His authority, more comprehensive than that of
an administrator, would have been as ubiquitous as that
of his testator, excepting only so far as a right to 5Wi*
a foreign court might have been involved; he would hare
had a right to dispose of all the goods even in this State,
subject only to the requisition of 'accounting and distribu-
ting here and according to our law ; and his authority to
assign the note in his possession in Mississippi» would
not have depended on the question whether the proceeds
would have been assets in that State rather than in this>
But, for the reasons already suggested, neither flw*'*
nor his assignee has shown any title to the note or to the
amount of it collected by the receiver; and therefore, th«
decree in favor of Brashear and dismissing the origiD»

SPRING TERM 1842. 385

bill, is reversed and the cause remanded, with instruc- Tbot.Tbaw.u»i.

tions to direct the receiver to pay the whole of the money Cx^at.
to Armstead Barnes, as administrator of Samuel C.
Barnes, deceased.

Harlan ^ Craddock for appellant ; Morekead ^ Reed
for appellee.

Trustees of Transylvania University vs CnAsczEz.

Clay,

Appeal from the Fayette Cihcuit. Case 127. '

Trusts and trustees.

Chup Justice Bobsrtson delivered the Opinion of the Court May 27.

. James Morrison, who died in April, 1823, bequeathed Th« case lUted.
to the trustees of Transylvania University, $20,000, in
trust either to appropriate the fund to the purchase of a
Library to be called ** Morrison Library,'' or to invest it
"in some permanent productive fund, and out of the
annual interest or dividends accruing thereon, to pay the
salary of a professorship to be instituted by them, and to
be denominated the '* Morrison Professorship.'* *

The trustees instituted the Morrison Professorship, and
instead of investing the sum bequeathed in permanent
productive stock, they loaned it to Henry Clay, upon
good security, for six per cent, payable semi-annually,
which interest seems to have been punctually paid and
faithfully applied to the salary of the Morrison Professor.
Clay having also paid $10,000 of the principal, it was
reloaned on the same terms and equal security, to James
Shelby, who appears to have regularly paid the accruing
interest.

The city of Lexington having given to Transylvania
about $70,000, a portion of which was paid in city bonds
redeemable at a distant day, and subject to annual pay-
ments of interest; the trustees of the University, in par-
tial fulfilment of the expressed purpose of the donation,
erected a large and suitable edifice for the Medical De-
partment, which cost about $30,000— for $10,000 of
Vol. II. 49

386 BEN. MONROE'S REPORTS.

TBM.TiAjr.Dm. ^yhich still unpaid, the undertaker baa reeovered a jadg
Clay. mcut against the said trustees, who having no available
means of voluntary payment, have suffered a part of the
College Lawn to be sold under an execution on the judg.
ment, and a levy to be made for the unsatisfied residue,
on the medical and law libraries. Apprehending a sacri-
fice of the permanent interests of the institution, unless
the impending sale under the execution could be averted,
the trustees determined to collect from Clay the fund in
his hands, apply a portion of it in satisfaction of the eic.
cution, and substitute in lieu of the portion so applied,
an equivalent in city bonds, which, as they believed,
could not be sold without a great and injurious sacrifice.
Clay, who is Morrison's executor, was willing to pay
to the trustees the' amount in his hands, but denied their
authority to make the application of it, or any portion of
it, which they intended to make; and, therefore, refused
to pay the principal unless they would invest it more se-
curely and productively than in city scrip.
„ .. To settle the question thus involved. Clay filed a bill

The allegations . ... ,.,, ,-,.:,* ,.

ftnd objects of for enjoining the withdrawal of the principal from nis
* * ' hands, or (if withdrawn) enjoining the appropriation of

it as intended by the trustees, or in any other mode with-
out the sanction of the Chancel loi.
The allegations -^^ answer, which together with the bill, exhibiles the
«fUieanawer. foregoing facts, was filed simultaneously with the bill,

and the case was, thereupon, by consent, submitted to
the Circuit Judge of Fayette, who decreed "that the com-
plainant's injunction against the defendants be perpetua-
ted." And by consent that decree is now submitted to
this Court for final revision.
The Chancellor We do not doubt the jurisdiction of a court of equity
tol^nK^^^^^^^^ over the trust, nor the power of such a tribunal, there-
and prevent a fofg^ to enforce the trust or prevent a perversion or abuse

perversion or a- * , , , . ....•»»• ^^

buse thereof, of it. And the trustees havmg instituted the Morrison

thorizef To' In.; Profcssorship, there can be no doubt that they cannot,

^Vrmaneiit ^and Consistently with the donor's purpose, make any other use

profitable stock, of the trust fund than that prescribed by his will— that

pay their debts is, an investment of it in some permanent and profitable

wUwTawitfrom stock. Of course they have no right to appropriate it

SPRING TERM 1842. 387

either to improvements of their property or to the pay- Tsu3.Tiuv.Uiri.
ment of their debts. q^y.

But, though the contemplated use, as avowed in this a safe invesi-
case, may, in one aspect of it, be deemed an applica- Intei^^st w "^^ ^'^t
tionof a poition of ibe trust fund to the payment of a uiariy poid, und
debt, yet in substance and effect, it might be a subslitu. stocK of ihe city
tioQ of the city stocit for so much of the trust money and ^^ ^*i^ton.
an mvestment of that money in that stock.

Then the main question is, would such an investment
be sufficiently secure and productive to fulfil the benevo-
lent purposes of the provident donor?

It is admitted that the city scrip is greatly depreciated^
and could not be sold without a heavy loss. AUstocks^
however, are, in some degree, degraded, and the value
and solidity of the best may be considered somewhat pre-
carious. But, in such a dilemma, the investment, when-
ever made, should be in that stock which, all things prop-
erly considered, should be deemed safest and most pro-
ductive. From the admissions in the answer, as well as
the intrinsic character of such stock as the scrip of the
city of Lexington, we cannot doubt that it is not, by far,
as safe and productive as some other stocks, and should
not be deemed such as the testator contemplated.

Then, considering the question of investment abstract-
]y» we should decide that it would be an unauthorized
abase of the trust to invest any poition of the charity
fund in the city bonds.

Does the fact that, if the intended appropriation b^ not
permitted, the property of the University may be sacri-
ficed to an amount perhaps equal to the whole sum pro-
posed to be invested in city bonds, decisively or materi-
ally affect the question as to the propriety of that invest-
ment?

The trustees seem to think it does; and they acknowl-
edge that this is their only motive for proposing such an
investment.

This acknowledgment alone is decisive of the ques-
tion. It is an implied admission that the proposed in-
vestment is not, in itself, the safest or most prudent, or
such as they would make if they owed no debt, or could
conveniently pay what they do owe without using the

3M BEN. MONROE'S REPORTS.

.T1vfl.TBAM.U2rr. trust fond for that purpose. The end, therefote, is the

Clat. payment of a debt with the tiust fund.
""^ In deciding on the propriety of a permanent invest-

i^^decwSg^^^on ™®"*» ^^^ Chancellor should not be influenced by specu.
the proprieiy of lative contingencies as to losses in other property, unless

a permanent in- ., . . ° u • • J- • 1 i- j •

▼eatment in this the trust money be injudiciously applied as a mere invest-
brmfluenced'by DQcnt. If the apprehended losses should even ensue to
ImKeD^i^B^fM^io *^® worst extent, it neither appears nor should be pre-
loaseaf on other sumed that the Morrison Professorship would be thereby
mg to' ^©^ u2- undermined, or its contemplated utility essentially im-
▼erwty* paired. Such contingencies rather seem to be altogether

extraneous, and are, moreover, too remote and specula-
tive; and besides, we must presume that the apprehended
sacrifices may be, and therefore ought to be, avoided with-
out sacrificing, or jeoparding, or in any way misapplying
the trust money.

The only judicial question upon this record is, we
think, whether the proposed investment would, as an in-
vestment, be the safest and best. It seems to us that it
would not be.

We are, therefore, of the opinion that the trustees ought
to be enjoined from using any portion of the Morrison
fund as proposed by them in this case.

But the Circuit Judge, without perhaps intending it,
has rendered a decree which may operate as a perpetual
injunction against withdrawing the money from Clay's
hands, for his injunction purports to be as comprehensive
as the prayer of the bill. For this cause alone, the de-
cree is reversed and the cause remanded for a more spe-
cific decree, enjoining the trustees from applying any por-
tion of the Morrison fund either to the payment of their
debts or the purchase of bonds on the city of Lexington.
Robinson tf^ Johnson for appellants; Clay for ap-
pellee.

SPRING TERM 1842. 389

Hancock VS Craddock, Chancery.

Appeal from the Franklin Circuit, Case 128.

Fraud, Rescission, Allegation and 'proof,

JuDOi Marshall delivered the Opinion of the Court j^i^y 27.

This is a case depending almost exclusively upon
questions of fact, and not deeming it necessary to state
at large our views of the ^evidence, we shall state only
the conclusions to which, upon a careful comparison of
the allegations of the parties with the documentary and
other testimony, we have come. 1. We are satisfied
that a division of the Ward tract, exclusive of the 233J
acres sold in lots on the turnpike road, was made between
Hancock and Craddock about the 15th of November,
1836; that it is evidenced by the agreement of that date
and the plat thereto annexed, and that the true division
line as then agreed on and fixed, has been adopted by
the Circuit Court in the decree before us.

We are also satisfied that said division and division
line were never abandoned, altered, or set aside by any
subsequent act of the parties, and that their subsequent
agreements, when properly construed, though- they may
not expressly recognize, seem to imply the existence of a
division, and should, therefore, be deemed confirmatory
of it rather than inconsistent with it; other acts and ad-
missions of Craddock are of the same import.

And as the allegations and proof do not authorize the Where the aii«w
conclusion that there was any fraud on the part of Han- do 00" authorize
cock in regard to the division as made, or that Craddock ^d^^n^'a dWiSf
labored under any mistake or ignorance of fact in reeard 1% jj /* ^^p

,.^ .. r>iTj . difficnlt to make

to the different portions of the land, or was m any man- out such fraud
ner deluded or imposed upon by Hancock, it would be Jnof wftaewM^
very difficult to make out a case, by the meie opinion of which^wouid au-
witnesses, which would authorize the Chancellor to set ihorJ««.the set-
aside the division as made by the parties, on the mere division.
ground of inequality of value.

In this case, however, the decided preponderance of Preponderance
opinion, and of that opinion which, from the character of iavor of Uie di-

390 BEN. MONROE'S REPORTS.

HiNcoci the witnesses and their acquaintance with the subject, as
Craddock. well as their numbers, is entitled to the greatest weight,

▼ision sought to is greatly in favor of the equality of the division at the
c«et aside. ^^^^ j^ ^^^ made, though several witnesses, entitled to

the highest respect, are of a different opinion.

It is true, that looking to the sales which have been
made by the two parties on their respective sides of the
division line, there might seem to be a consideiabJe dis-
parity between the value of the respective portions al-
lotted to them. But these sales were made by the parties
respectively, at different periods, between which we knov
that there was a decided change in the general condition
of the country, and may presume that there may have
been a corresponding fluctuation in the market value of
land. Besides, the sales were not made on the same
terms, and they do not furnish the means of ascertaia-
ing, with any precision, the cash value of the land sold, nor
the comparative value of the different portions; Crad-
dock too, admits that he sold at a sacrifice, while. Hao-
cock in these sales, as well as in those made for the com-
mon benefit, would seem to have been remarkably suc-
cessful; and as it appears that before these sales he com.
menced very large and expensive improvements upon his
part of the land, and sold some of it to persons whom
be had employed, it is not unreasonable to suppose that
the vendible value of bis land was increased, to some ex-
tent, by bis own exertions. It is said by some of the
witnesses that this was the case. Some witnesses,
speaking of the relative value of different portions of the
land on the two sides of the division line, indicate that
there was a considerable disparity, but there is some dis-
crepancy in this part of the testimony; and its tendency
is outweighed by what may be termed the general cur-
rent of the testimony, which goes to show that at the time
of the division, and independently of the improvement
made by Hancock and his vendees, the portion of Crad-
dock, taken as a whole, was equal, and as many wit-
nesses think, superior to that of Hancock, taken as a
whole. We are of opinion, therefore, that there is noth-
ing in the case which would authorize the Chanc^ellor to

SPRING TERM 1842. 391

set aside the division, though it may not have been pre. Hancock
cisely equal. Ceapdock.

2. By agreement of the parties of 24th of September,
1834, Hancock was to make sale of the lots, to be laid
off on the turnpike road, he taking on himself the trou-
ble and expense of laying off and selling, &c. and un-
dertaking "not to sell for less than eighty dollars per
acre ;" and "in compensation for his services, he was to
lece ive from the last amount of sales thereof, all which
he might get over and above eighty dollars an acre as
aforesaid, oi five per cent, allowance, either that he might
select."

Hancock would not have complied with his underta-
king as to price, by selling for $80 per acre, to be paid
in ten years, without interest; and if he had sold for
$90 or $150, to be paid in ten years without interest, he
would not have been entitled to the excess above $80, at
the time of payment. He was not to sell for less than
|80 cash in hand, or its legal equivalent, and the excess
to which he might be entitled was to be estimated by the
same standard.

He was not bound to make his selection before the
sale, nor at any time afterwards, until the time came for
him to demand and receive his compensation, nor until a
settlement between the parties. The appropriation of the
last notes due on account of the sales, to the payment of
the purchase of the land, with the assent, and as it should
seem by the requirement of Graddock, was no waiver of
his right of selection, and if it would otherwise have had
that effect, the right was reserved by the various references
to the agreement on which it was founded, as furnishing
the rule for final settlement.

But, although he may not have made a formal election
of the measure of compensation before filing his answer,
it cannot be doubted that he had made his election, in fact,
long befoie, and that it was known to Graddock. This
fact would seem to be proved by the very nature of the
case; it is further proved by the admission of Graddock
himself, as stated by one witness, and by the statement
of several others, that it was known that Hancock was to
get the excess above $80 per acre, produced by the sale.

392 BEN. MONROE'S REPORTS.

Hancock fh^ Court, therefore, did not err in allowing him this

Cbaddock. excess for his compensation, to which, however extrara-
gant it may appear since the sale, he was enUlled by
contract, nor was there any error in allowing only the ex-
cess of the cash value of the sale money above $80 per
acre, estimated at the time of the sale.

The 2114 acres of land belonging to Craddock, but in-
cluded in his conveyance of 20th September, 1837, to
Hancock, was not covered by Hancock's mortgage to
Carter, and the mortgage to the Bank of the United
States, which did cover it, being released, it was properlj
directed to be conveyed to Craddock, subject only to the
lien of Hancock for the balance in his favor on the ac-
count stated by the auditor and adopted by the decree.
Hancock was not bound to take it at §40 or $50 per acre,
or at any other price under any written agreement betweea
the parties, and he had no right to claim it at valuation,
under the alledged verbal agreement, which Craddock
denies. Nor has Hancock, in our opinion, any equitable
right to discriminate between the value of Craddock's
land and that of his own, included in the sale to Robards
at $40 per acre, and he was properly disallowed his claim
founded on such discrimination.

In all these respects, therefore, the decree is free from
error; and with regard to the lien for the balance in favor
of Hancock, which the decree recognizes and directs to
be reserved in the conveyance of the 21 li acres to Crad-
dock, but does not enforce, we are of opinion that there
is no ground for reversing the decree in favor of either
party. Craddock being justly indebted to Hancockin the
amount decreed against him, has no right to complain of
the mere declaration of a. lien for a balance growing out
of the partnership in the land, which he may remove by
paying the debt. And Hancock has no right to complain
that the Chancellor has not proceeded to sell the land be-
fore the remedy by execution has been tried. He has not
prayed for such enforcement, nor made out, explicitly.
any good ground therefor. And the decree provides !ot
his ultimate security by holding the land subject to his
demand.

SPRING TERM 1842. 393

Wherefore, the decree is affirmed, both upon the oiigi- The Com'w.
nal and the cross errors. Blantom'i Ex**

Guthrie for appellant ; Pirtle and Loughborough for ^^^^ ^ —
appellee.

The Commonwealth vs Blanton's Execu- CBAifCBRT.

tors et al.

Appeal from the General Court. Ceisc 129.

Escheats,

Canr Justice RoBE&noit delivered the Opinion of the Court J^y 2^*

In the year 1818, one Benedict Costy, an isolated for- TheeaM autad.
eigner without heir or distributee, so far as is yet known,
died intestate in Franklin county, in this State: and in i„^»Sf
June of that year, Carter BlarUon was qualified as ad- i~^^^
ininistrator of his goods, which were estimated, accord- }U gj
ing to a reported inventory thereof, at about $1150. And — -^
that estate seems never to have been appropriated by the
administrator unless he applied it, as may be presumed,
chiefly to his own use.

Blanton, the administrator, died in the year 1835, and,
by his will, directed his representatives to indemnify
bis surety in his administiation bond against his contin-
gent liability for the fund thus retained and undistribu-
ted.

In January, 1840, the Legislature of this State enact-
ed a statute (Session acts o/ 1839-40, p. 47,) providing,
in substance, that the "estates** within this Common-
wealth, as to which the owners had previously died or
might subsequently die intestate, without legal heirs or
distributees, should be vested in the said Commonwealth,
'^'without office found," and requiring all executors and
4tdaiinistrators of such persons to pay into the public
treasury thereof the net balance of such undisposed of
property, within one year after t^ie date of the statute, if
administration had been grail ted before its date, or with-
in one year after the date of the letters of administration,
if granted since that enactmen^f and also authorizing

suits for settling such estates, and coercing the rights of
Vol. II. 50

394 BEN. MONROE'S REPORTS.

Thb Com'th. the Commonwealth through the intervention of agents,
Blanton's Ex- to be appointed for that purpose in each county.
ECTJTOKa et al j^ ^^^^^ ^g^j^ Alexander Rennick, who had been ap-

^ pointed the agent for Franklin county, filed an appropri-
ate bilf in chancery in the name of the Commonwealth
against the executors of Carter Blanlon, for coercing an
account and claiming a decree for the balance remaining
in his hands, to be ascertained on proper settlement by
the Chancellor — the said executors having, as alleged,
refused to make a voluntary settlement or to pay any
thing into the Treasury.
Decision of the The General Court having dismissed the bill upon de-
Md the probable murrer, this writ of error brings up that decree for re-

giouuds fiieieoi. yision

As the bill contains every essential allegation, the Cir-
cuit Judge must have sustained the demurrer on one or
both of two grounds. First, an opinion that if no pe^
son was entitled under the statute of distributions, the
personal estate of the intestate had become vested by
operation of law in Blanton in his own beneficial right,
and that the Legislature has no constitutional power to
divest that right and apply the property to tha use of the
Commonwealth. Second, such an interpretation ot the
statute as would restrict it to the unconverted and spe.
cific property of intestates in the hands of their repre-
sentatives.

We will, therefore, consider these grounds in the or-
der in which they have been suggested.
Escheats are the 1. Esckeats, being the legal fruits of the ancient doc-
iadenid^tri^s ^^i^^s of feudal tenure, were always applicable, of course,
of feudal tenure, to immovable property alone: movable things never cs-
WeuT immova. cheated in the technical sense. In England, there has
Sne.^'^**^"^^ *' ^®^" some diversity of opinion as to the ultimate title to

the goods of an intestate after payment of his debts, and
when no person appeared who could claim under the
statute of distributions. There is no trace of any Brit-
ish statute that can shed any light on that obscure sob.
ject. Nor, if we explore the labyiinth of the ancient
common law, can we' find any sure clue to a conclusion
peifectly clear and satisfactory.

SPRING TERM 1842. 395

Personal administration, and the right to such admin- The Com'th.
istration, are altogether statutory. The right to adminis- Blanton's Ex-
ter on the estate of an intestate is an attribute of the ^cctors et a .
sovereign power. In the days of Glanvil and of Brae- Historic outima
ton, when the common law of England was in its sem- adrninistrafions.^
inal state, the King, as parens palria, had a right to Administration
take possession or an intestate's effects and apply them \^itiol sllfu!
first to the payment of debts, and next to the use of his tonr, and an at-
wife and children, if any, and if none, to his next of reign pouer^
kin, and, if none of these, then to the public use. And ^^p oi^^Qian-
that prerogative of sovereignty was first exercised through bl]o*irt(f to^^'S?'
the instrumentality of the County Courts, and, in some King as parens
instances, was delegated as a franchise to lords of certain the instrumen-
inanors. But, at a later period, it was vested in the cou^ig^ ^^iX
prelacy in confidence, that oflicial piety would devote ^^'^^ ^^fiS*
more beneficially to the intestate's soul the residual third, 13 Edi. L c
called "the dead man's part," after allotting the other wcstoinater.
two thirds to the widow and children to which they were
entitled as partes ralionabiles. The ordinary was ex-
pected, of course, to dedicate that third part faithfully
to pious uses, arid if he failed to do so, or converted it to
his own use, he was guilty of a breach of trust. But,
finding that the ordinaries perverted their trust to their
own use, the legislative power, in 1285, enacted the
statute of IZth Ed. i, c. 19, called the statute of West-
minster the Second, requiring them to pay the debts of
intestates, which, as Sir Edward Coke said, was only
declaratory of the common law.

To afford a still stronger guaranty against a misappli- Si&t. 21, Edward
cation and unauthorized conversion of the effects of in- quiied^'thV ordl-
testates, the statute of 31 Ed. Ill c. 11. was enacted, naries to appoint

* * ^ * admrs and make

requiring the ordinaries to appoint administrators and them accounta-
hold them as accountable as executors.

But, in the progress of time, administrators, after pay- the^fax/^or ad^

ing debts, refused to distribute the residue of the estate ministrations, at

° , . the passage of

committed to their trust. And, although the ecclesias- theiststoiuteof
tical courts attempted to enforce distribution, yet. in the and 23^ca!'^/J, c
cd.se of Hughes vs Hughes (Carter, 125.) the court of iuiVes^^dL^tribu^
Common Pleas enforced a prohibition to the Court tion among kin-

^ dred only.

Christian on the flimsey ground thaVin granting admin-
istration, the ecclesiastical jurisdiction was exhausted.

SW BEN. MONROE'S REPORTS.

To cotf «. ^nd the temporal courts not venturing to arrogate juris.
Blahton's Ex^ diction over administrators, there was thus a temporary
^ — — interregnum of judicial authority as to compulsive distri-
bution, until Sir Orlando Bridgman, (who, as Chief
Justice of the Common Pleas when Hughes vs Hughes
was decided, had dissented from the majority) determin-
ed to supply, by act of Parliament,\the remedy which
the courts doubted their authority to give, and, therefor^,
he procured the enactment of the statute of distributions,
22 and 23 CA. 77, c. 10.

But that statute only requires distribution among the
intestate's kindred, and is silent as to the disposition of
his effects when there are no such distributees.

This historic outline furnishes the only clue to the as.
sumed right of beneficial property in admiuistrators,
when there is no person entitled under the statute of dis-
tributions. It is evident that the only reason for that
assumption was the defect of prescribed remedy ante-
cedently to the statute of distributions, and the fact that
the statute directs no appropriation in the event of a fail
ure of kindred.

But the same history ^ows, as we are inclined to think,
that the temporal court was wrong in withholding reme-
dy when there was a clear right; and that, however this
may be, the King, as the official organ of the public, had
never surrendered his sovereign right as ultimate distrib-
utee in trust for all the people who certainly had more
title than any one of them who was a stranger in blood
to an intestate could be admitted to possess from the
accidental circumstance of being appointed a trustee for
every and anyone who might be entitled to the eflfects of
the deceased. And this deduction seems to be fortified
by a preponderance of British authority.

In eases of in- ^^ ^^^®* °^ intestacy, and defect of legal distributees,

testacy and do- it seems to have been the practice of the crown to trans-

lesentatives "m fer the royal title to the undisposed of effects to the ordi-

«iii"tc?*the^cN ^^^y ^^ ^^ appointee on the King's nomination— reser?-

fecu to the or- ing, as the consideration of the grant, a certain reversion-

dinaiies, reserv- * r\-

ing a proportion, ary proportion of interest: 11 Yin. Abr. 87; Com. Dig^

Mm. A. Jones vs Goodchild, 3 P. Wms. 33; Doug.
548. And, in every case of an intestate bastard who,

25i*KiiN(x liiKM 1642. 397

ia contemplation of law, had no kindred, the King, as '^^ Com'tm.
ul/imnus hares, is admitted to be entitled, at his election, Blantom*s Ez-
lo lY^e effects after payment of debts. In the case of Mid- V ^'^ * ^ '
dleion vs Spiccr, 1 Brown* s Chancery Rep. 201, the
Chancellor reviewed the authorities on this whole sub-
ject, and decided that a personal representative, who was
only a trustee, never acquired a beneficial title to an in-
testate's effects in consequence of a failure of distribu-
tees; but that, in the event of such failure, the surplus,
after payment of debts, was held in trust for the King:
and he said, moreover, that the royal right in such a case
was not, (as in the case of an escheat, as decided in
Burgess vs Wheat, 1 Eden. 259,) seignioral but pre-
rogatival merely.

The same doctrine was virtually reiterated and confirm-
ed in the case of Barclay vs Russell, 3 Vez, 424.

And each of those cases overrules, as an unauthorized
dictum, the suggestion in 2 Salk. 37, that the property of
an intestate was beneficially in the ordinary, and recog-
imizes the converse as declared in 2 Inst. 398.

We should be inclined, therefore, strongly to the con-
clusion that, according to the common law as now under-
stood in England, an administrator has no indefeasible
beneficial title to his intestate's effects merely because
there are no distributees under the statute of distribu-
tions. ^

Until the enactment of a statute in the reign of Wil Before the stat*
licrni IV. an executor, in consequence of an assumed in. "o^ur^'^'of VnJr-
tentionof the testator to that effect, was considered en- land gave to Ui©
titled to the unbequeathed surplus, unless, by giving him of the goods of
some other legacy or otherwise, the testator had manifest- ever^h^Ve^was
€d the intention that he should be a trustee only. But, ground to prc-

^ . . Bume the testa-

before that enactment, the courts of England decided in tor did not ia-
many cases that, whenever there was ground for presum- ecutor^ aiwaii
ing that the testator did not intend that his executor should ^*^® ^^^*
be implied legatee of the unbequeathed residue of his
goods, the King, (as trustee for his subjects,) and not the
executor, was entitled to that residue if there was no le-
gal distributee.

And we can perceive no reason for discriminating, as And there ezitts
to the matter between a trustee nominated by the tes- diaUnction ^ be*

398 N BEN. MONROE'S^ REPORTS.

The Com'th. tator and a trustee appointed by public authority or the

Blanton*s Ex. law. This public right may not have been generally en-

ECDTOM et aL fQ,.^.gj^ ^^^ ^^[j forbearance may have induced an opin-

appormed by^the ^^^ ^^^^ ^^^^ administrators had not been required to
testator and one surrender they had a legal right, beneficially, to hold and
law. enjoy as their own. Indeed it may be truly said that,

until the public right is asserted, the administrator is en-
titled to the effects and may consider and use them as
his own, there being no statutory distributee.

This subject was touched by this Court in Conduicu
Williamson et aL (\ J, J, Marsh, 18,) and it was there
said, that the title remained in the administrator until
divested by the Commonwealth; but the Court carefally
withheld any opinion on the question whether that title
was of such a character as to preclude any claim to, or
disposition of, the property by the Commonwealth.

However, the Court, when that case was decided, was
not aware of a local authority which we have since found,
and which concludes all question upon this point here,
whatever may be the doubts or the doctrines elsewhere.
We allude to two ancient statutes of the colony of our
parent State, Virginia, and which, never having been
repealed, so far as we have been able to ascertain, were
adopted as the law of Kentucky by our State constitution.
^ , , , ^ In March, 1665, and sixth year of the Commonwealth

The Btatote of .

the C0I0D7 of of England, the colonial Legislature of Virginia enacted,
6t?y*ear^ of Se "that, if any administrator be of no kin and have assets,

M^Teer*^ u "^'^ ^^® ®^^^^® ^^^^ ^^^^^ ^®^*^ ^^ P*^^ ^® employed in'Ou
Ch. II, that of ** county where he lived for selling up of manufactures

quoted and con- **or/or o/AerpttfeZzgwc tses, the administrator being paid
mwe'^"f'^'''ih^ his reasonable charges and for his ;?flyn«s:" i\ Vol Hen-
common law. ning's Statutes at large, p, 401.)

And in March, 1661-2, (14 Charles II,) the same Le-
gislature enacted that, after payment of debts, "the sur-
"plusage, if any remayning, (if there be no widow or
**child,) be delivered to the next kinsman of the dec^
"dnet, if he appears, and if none prove himself such
"within three years, then the Court to give an account of
* 'the said surplusage to the assembly, who are to dispose
"of the same to the use of the country, allowing to the

SPRING TERM 1842. 399

**Court or whom they intrust with the management of iM, The Com'th.
"for his reasonable costs and paynes." Blakton's Ex-

. , ^ ,. - , ^n^H ,r\ A V . ECUT0R8 «t ul.

And an act of November, 1711, (9 Anne,) requires -;

administrators to give bond with a condition, among other
things, "to pay to such person or persons as the County
'* Court Justices shall direct, pursuant to the laws in that
'*case made and provided,**

These enactments may have been understood as declar-
atory of the law of England, and if so, they wer^ in-
tended chiefly to vest, without doubt, in the colony what
otherwise might peihaps have been claimed by the crown.
But however this may have been, the colonial statutes of
1655 and of 1661, gave the quietus to all legal claim by
an administrator to the effects of his intestate, on the fail-
ure of kin, if the colony or Commonwealth (as it after-
wards became,) elected to assert its right. The ultimate
right of the administrator in such a case, was, therefore,
altogether contingent, depending wholly on the legisla-
tive forbearance or renunciation.

The Legislature of Kentucky, after declaring, by a The siaiute of
statute of 1798, that slaves should be deemed real estate, iilves rSS^l"!
added this proviso: "that no such slave shall be liable to l^H' "hat^ff^"
"be escheated by reason of the decease of the proprietor should not e»-
"for the same, without lawful heirs, but all such slaves necessarily fm-
"shall, in that case, be accounted and go as chattels and Eie ^^"pr^eny
"other personal estate.;' Tdefec/ofh •^'

That proviso might possibly be considered as implying does not belong
that, in the opinion of those who enacted it, personal wcaiih, whToat
property did not relapse to the Commonwealth either by ^J^t^ o^jy ^°°°^ •
escheat or otherwise; and this interpretation we were that they, by be-
onrselves once rather inclined to give to it. But it is uie™for^ cVna^
not, as we now believe, entitled to any such effect. As SolTe'^ni^ectid
already suggested, movables' never escheated. And, in ^oc|^s^7"^*^-'**
order to escheat land, a judicial proceeding was necessa- quisition, die. to
ry; and the title never vested in the Commonwealth until "rth'e Common!
after office found. Escheators also were required to be ^**^^'
appointed. Then, as slaves, when personal estate in
law as well as in fact, belonged to the Commonwealth
without the contingencies, circuity, and expense of an
inquisition, the Liegislatnre rery properly declared that
the technical conversion of that kind of property into real.

400 BEN. MONROE'S REPORTS.

The Com'ts. estate, should not change or embarrass the ultimate right

Blanton'8 Ex- of the Commonwealth, on a failure of distributees, by

EcuTORs et aL making it depend on an office found; and, therefore, it

was provided that slaves should ;iot be "liable to bees-
cheated/* but should go as chattels, that is, at once with-
out the intervention of escheators or inquisitors. This is
now our construction of that proviso. We cannot be-
lieve that the Legislature of 1798, intended that admin-
istrators should be entitled, absolutely, to the slaves of
persons who died intestate, without legal distributees, oi
intended, by implication or otherwise, to repeal thepre*
existing law recognizing the right of the Commonwealth,
and providing for securing the enjoyment of it by requir-
ing reports from the County Courts of all such estates.
The statute of From the foregoing conclusions, the deduction is iner-
1840, not uncon- itable that the statute of 1840 cannot be liable to the
oDiyas^Msertinff charge of attempting, unconstitutionally or unjustly, to
but'SdL^putSwe divest any indefeasible or meritorious right, but should
right. be considered as having the effect only of asserting and

securing an indisputable, butlbngftfiglecied and dormant
right In thff i;nmmnnwftaitk That right, resulting as a
trust for the whole people, cannot be considered as hav-
ing been abandoned or lost by desuetude or vested abso-
lutely and beneficially in the administrator, who look the
intestate's property in trust for the ultimate successor, and
not for his own use or benefit.
The BUtute of 2. As there yet seems to be no statutory distributee of
ti^^mo°de^f °e^ ^^^^^^ ^^® Commonwealth, rather than the ad-

coTering ^ the ministrator, was entitled to them, before and indepen-
cSmionweaitht dently of the act of 1840. And, the right existing, the
difSSo'f hSr^^^ prescribed and adopted remedy may be applied, whether
u not to be con- ^^e letter of the statute embraces such a case or not.

fined in its ope- • .i

ration to the But we are of the opinion that the literal import oi w
coming to 'the enactment embraces this case. It undoubtedly has a i^
^SbtratoiTbSt trospective operation. What limit is prescribed to the
Uie value of the retroaction? It certainly embraces administrators ^
by tie adminis- bad converted the assets by sale; for it requires them.
waWe V^'^STe after settlement of their accounts, to pay into the Uwso-
SS^eTdmi^*! ry any balance ''0/ cash'* which may be found in ^^
iatiator, without hands. It cannot, therefore, be restricted to estates ifl
o?^. ^^ kind, before any administration of them, but applies to

SPRING TERM 1842. . 401

▼es
erson
U8 re*

all unappropriated balances, without regard to their spe- Thb Com'th.
cific quality or to lapse of time. Blanton's Ez-

Nor can Carter Blanton's death be deemed material to '^^^^'^ ^ ^
the right of the Commonwealth to maintain this suit. It And the adm'r.
was the duty of his executors to settle and account when ?epre«Iitoti
required to do so, as they were, by the public agent; and ^'j^^^^^ ^^^^
surely the accidental death of an administrator, whether ceWed and con
before or since the enactment of 1840, cannot entitle his i/ respoD8i?i?to
representatives to that to which he himself would have S'^uif JxSS^'Sf
had no title had he survived. The statute applies to the »««*?# *a^ the

* *^ sureties of the

case. % executor or ad*

It may not be improper to add that, as Blanton was the^illi^^xteiiC
contingently liable to the Commonwealth when he exe-
cuted his fiducial bond, his sureties in that bond may
also be liable to the same extent, if his estate should be
insufficient. Th6 Commonwealth was ultimate distrib-
utee according to the law in force at the date of the bond.
Having asserted her claim and prescribed a mode of en-
forcing it, the sureties cannot say that a new and unrea-
sonable burthen has been thereby imposed, nor that it is
not embraced by the condition of their bond, stipulating
for an account and payment, by their principal, to whom-
soever he might be liable.

Nor is it material to the question of liability in this
ease, whether the administrator had converted the assets
to his own use or retained, at his death, the unappropria-
ted balance in money. In either event he was liable to
the Commonwealth when she might elect to assert her
claim; and his executors are equally liable so far as assets
of his estate have come to them.

It is, therefore, the opinion of this Court, that the de-
murrer ought to have been overruled and the defendants
required to answer the bill.

Decree reversed and cause remanded for further pro-
ceedings.

Caies, AU. Gen. for Commonwealth ; (>mlcy (f Good-
lot and Todd for appellees. ^

Vol. 11. 51

402 BEN. MONROE'S REPORTS.

Ikdiotmekt. Commonwealth t;^ Jackson.

Cast 130. Ebror to the Fayette Circuit.

Importation of slaves. Legislative power, Execuiive
' power.

May 28. Chief Justice Bobertson delivered the Opinion of the Court.

T ' dctment "^^ ^^ indictment against John Jackson for importing

for importing slaves into Fayette county in this State, ii) violation of

toTheprovisfons the prohibitory statute of 1833, he pleaded that he bad

i83Mt u^agoo°d si"ce taken arid registered the oath as prescribed by the

defenc^to plead statute of 1841, to emigrants who had imported slaves in

W' since taken good faith, buC had failed to take the oath required by the

S^e oaT^^Fc^ first of Said enactments, only because they were ignorant

;Si«^'oM: of the requisition.

to emigrants who And the Circuit Court having overruled a demurrer to

faith, \^por°ted that plea, rendered a final judgment in favor of the ac-

slaves, but had ^„_^j
failed to take the cuscu.

Ih^lciVf'mi '^^^ P^®* ^^^ certainly good, if the act of 1841 be avail-

able. And that it may effectually exonerate, from the
penalty of the statute of 1833, all who shall have fulfilled
the conditions prescribed by it, we cannot doubt.

Thtfngh a penal Had the Legislature repealed instead of modifying as

Utid!yet*'1f,te" ^^ ^^^' ^^® ^^* ^^ 1833, Jackson, though he may have
fore tte penalty been guilty of violating that statute before the repeal of

be inflicted, the . ij x u u • l j u • j .*»*

statute be^ re- it, could not have been punished, because no judgment

meni for°5iepen^ 0^ conviction could have been rendered against hrm with-

dered*'^&riru ^^^^^ '^^ ^^ ^^^^^ *^ *he date of the judgment, authorizing

be modified, no the Court to render it. The power to repeal, necessarily

wnlered exceed^ including that of modifying or suspending, the act of

iSft ^^i^ ^fo?cl! 1841 is as efficacious in Jacksori's favor as an unqualified

The power to re- repeal of the entire statute would have been.

t>ea)' includes the \^

powtr to modify. Our constitution has wisely distributed all local sove-

leignty among three organized departments, and as wise-
ly declared that no one of these departments shall exer-
cise any power properly belonging to another. And this
is perhaps the most conservative provision in our organic
law.

SPRING TERM 184^. 403

But it has not, in our opinion, been violated by the Commokwium
enactment of 1841 ; for though the constitution confides Jackaon.
to the Governor the high power to pardon offences and ""1
remit penalties, nevertheless the supplemental and quali- erciMof theez-
flying act of 1841 cannot be deemed a pardon or remis- doninpj^vtr^ to
sioninthe constitutional sense. It is general, perma- repeal or modify
nent, prospective, and comprehensive. It conditionally (whereby tha
repealed the act of 1833 and abolished the offence de- Ee'^*r''Jcove*rcd^)
nounced therein; and inconsequence of its provisions, me^nH/f/nierfd
Jackson is guilty of no offence which the Governor could for th« penalty,
pardon. A pardon is a liberation of the guilty from the
punishment of the violated law. The act of 1841 abol-
ishes the law. A pardon rescues an individual from the
law. In the one case the offence and the law both con-
tinued to exist, in the other there is neither subsisting,
oflTence nor violated law. Both the offence and the vio-
lated law have been abolished^, as to Jackson, by the
statute of 1841. But when the Governor pardons, both
the offence and the offended law still subsists, the pun-
ishment only being remitted. The Legislature has re-
mitted the crime itself, and virtually repealed the law
which denounced it. The act of 1841 was, therefore,
legislative and not executive.

The statute of 1841 being, therefore, effectual in this The eonitiia-
case, we will not discuss the constitutionality of all or ac^^f ^1883^ io^
any of the provisions of the statute of 1833. For what- invoiTcd aod^

t_ ^u -I *• u- A A ■* therefore, not

ever may be our opmions upon that entire subject, yet it decided.
would be premature and extra-judicial to express them in
a case to which the statute of 1833 does not apply.

Judgment affirmed.

Cotes, AUo, Gen. for Commonwealth; Robinson <^
Johnson for defendant.

04 BEN. MONROE'S REPORTS.

3bm404
ellB 426

Chakcbrt. January & Huston vs Poyntz et al

Case 131. ApPEi^L FROM THE MaSON CiRCUIT.

Partners and partner ship liabilities. Trustees. Mortgagees.

May 90. Chief Jubtxcb Bobvbtson delivered the Opinion of the Court

The casesuted. On the 16th of February, 1837, R. J. Langhorne made

a mortgage to W. & N. Poyntz and T. Y. Payne, for in-
demnifying each of them as his surety, on separate and
various liabilities — and at the same time he made to N.
Poyntz another mortgage on other property for secoriog
him as his surety.

On the next day, (February 17th, 1837,) Langhorne
made a transfer of all his accounts and notes to the said
T. Y. Payne in trust, first, -as a supplennental security for
the liabilities described in the two first mortgages, and
next for the benefit of Mcllvaine and other described
sureties, not including January (f* Huston, and next
and lastly, for their benefit also, and for that of other
sureties.

And at the same time he made another mortgage to
N. Poyntz on other property, belonging to himself and
a co-partner, as an additional security for the liabilities
mentioned in the first two mortgages, and next for the
benefit of January & Huston, and next and lastly for
that of other sureties.

Payne collected as much of the choses in action is
seemed to be collectable, and paid over the amoont
collected to W. & N, Poyntz, who exonerated him and
paid the debts for which he was surety; and W. &N.
Poyntz, in execution of a power given to them, sold all
the estate included in the three mortgages to them. The
aggregate avails of these sales and of Payne's collections,
exceeded the total amount of the collateral liabilities of
W. & N. Poyntz and Payne. But the proceeds of the
property mortgaged to them exclusively, on the 16th of
February, being insufficient to discharge their entire lia-
bilities, a portion of the avails of the property included
in the mortgages of the 1 7th, in which they were con-

TOH
V9

PoTNTZ et al*

SPRING TERM 1842. 405

tingently preferred creditors, was also necessarily applied Jamuary & Hos-
to their use for completing their indemnity. The residue _ vt
remaining in their hands for distribution among other
beneficiaries being insufficient for the indemnity of all
of them, a contest arose among them as to their respec-
tive distributive rights.

Mcllvaine filed a bill in chancery claiming the whole The state of the
of his debt. And thereupon W. & N. Poyntz filed a bill jinfis^and dl
of interpleader against all the parties concerned, and the ^^^ ^^J^ ^"'
two suits were consolidated.

The parties having interpleaded, the Circuit Court, on
the final hearing of the consolidated case, subjected the
fund resulting from the mortgage, in which January and
Huston were preferred to Mcllvaine and others, to the
burden of the whole deficit of the proceeds of the two
mortgages of the 16th; and, in consequence of that pro-
cess, decreed to Mcllvaine and others mentioned in the
mortgage to Payne, the whol^ amount of their respective
demands, and thereby imposed on January and Huston
a loss of the greater portion of their debt.

To reverse that decree January & Huston have appeal-
ed to this Court.

As the property mortgaged for the benefit of January partnenbip
& Huston in preference to Mcllvaine and others, was l^^^l^ ntllfy
partnership estate, and the debt due to January & Hus- partners'p debu
ton was a partnership demand, they would certainly, as indrvTduardeb^
lo that property, have been entitled to an equitable prior- ^f ^^'^aTtSl"
ity over any creditor of either of the individual partners, *^^ ^ ..
had there been no mortgage. And notwithstanding the ors of a panner-
mortg^iges they now assert the same equitable priority, selves ^on differ'
But it seems to us that, claiming under the mortgages, JStin?°a'*mort!^
they must stand in all respects, in the relative position s^^, the^r must
in which those contracts placed them, and cannot go be- tract.
hind the conveyances for asserting any equity inconsis-
tent with their object and efiect. A bonafidesdle or even
mortgage of the partnership property to a creditor or
creditors of one of the partners, with the concurrence, as
in this case, of the other partner, would have been un-
doubtedly available against the equitable priority of Jan-
uary & Huston, as resulting in the absence of any valid
contract affecting that latent equity. Then, of course,

406 BEN. MONROE'S REPORTS.

JkvuARY & Hos- i\^Q mortgages in this case being unassailed, and accept-
V8 ed by January & Huston, must determine their rights of

oTNTz e a, distribution without regard lo any equitable priority
which they might have claimed if there had been no con-
tract for distribution in any other mode than that which
equity would have dictated in the absence of any such
contract.
Trustees vfho But, nevertheless, we are of the opinion that the de-
r^g a^^'contest ^^^^ has done injustice to January & Huston,
between mort- ^jjy ^^q Circuit Judge imposed the whole deficit on

gagees without ' ...

using it, and who them WO cannot imagine, unless it was because the mort-
to^ pay^ 'i?'^into gage of the partnership property M'as described in the
S*Md accl^^^^^^^^^ T^^<^OTd as exhibit No. 3, and the mortgage of the choses
able for interest in action was described as exhibit No. 4. But this nu-
merical order was altogether arbitrary and accidental.
These two mortgages were simultaneous, and, so far as
W. &L N. Poyntz weie concerned, should be considered
as one single security. There is nothing indicating an
intention to discriminate between these two mortgages
so far as those preferred creditors were interested in them.
But if one or the other should be subjected to the whole
burthen of the deficit, why should not that one be the
mortgage to Payne in which Mcllvaine was preferred to
January 8l Huston? There would, we think, be more
reason for imposing on that the whole burthen than for
putting it on the mortgage in which January & Huston
are preferred to Mcllvaine, because antecedently to the
mortgages they may have had superior equity as to the
property embraced in the latter mortgage.

But W. & N. Poyntz having a common lien on both
of these mortgages, it is clear to us that the burden of
that incumbrance should be distributed pro rata on the
proceeds of each; and had this been done by the de-
cree, January & Huston would have obtained a much
larger amount than that which was decreed to them.

It appears from the record as now exhibited, that the
Circuit Court omitted to charge W. & N. Poyntz with
$1165 27, which Payne collected from Stout & Rali-
ton and paid to W. & N. Poyntz as a portion of the pro-
ceeds of the choses in action mortgaged to him. Had
not that sum been pretermitted, Mcllvaine and otben

SPRING TERM 1842.

407

claiming under the mortgage to Payne might have been
entitled to the whole of their respective debts after mak-
ing the pro rata contribution, if they are entitled to
charge the trustees with accruing interest on the residua-
ry fund in their hands. But, as the trustees were stake-
holders of that residue, and do not appear to have made
profit out of it, or to have used it for their own benefit,
no ground is shown for subjecting them to the charge of
interest. They expressed a desire to distribute the distrib-
utable balance, and none of the distributees manifested
any wish to have it paid into Court. Unless they appro-
priated it to their own use they are not liable for interest
on it. And without charging interest Mcllvaine and those
claiming with him were not entitled to quite the whole
amount of their several debts, even had the omitted item
of SI 165 27 been charged against the trustees.

The decree in their favor, therefore, seems to be slight
ly erroneous to the prejudice of January & Huston; and
the decree in other respects, as between January & Hus-
ton and W. & N. Poyntz. appears to be grossly erro-
neous and prejudicial to the appellants.

As W. & N. Poyntz appear to have had good cause to
file their bill of interpleader,' and to have filed it in good
faith, there was no error in failing to impose on them any
portion of the costs.

Decree reversed and cause remanded.

Ovodey ^ Goodloe and Hordiox appellants; Morehead
^ Reed and Mc Clung ^ Taylor for appellees.

BUSBT

Hakdin, &c.

Busey vs Hardin, &c.

Appeal from the Anderson Circuit.
Commissioner's sale. Fraud, Purchases by counsel

JiiDeE Mabshall delivered the Opinion of the Court

Upon the bills of two complainants, separately filed in
the Anderson Circuit Court, but afterwards consolidated,
a decree was rendered declaring fraudulent a conveyance
of 350 acres of land from W. Harris to J. H. Busey, and
Erecting the land to be sold for the satisfaction of the

Motion.
Case 132.

MaydO,
The cue stated.

408 BEN. MONROE'S REPORTS.

BusBT demands set up by the complainants, amounting in the
HASDiN,«c. aggregate to less than $250, but giving precedence to the
^ debt of W. W. George, whose bill was first filed. At
the sale by the Commissioner, J. D. Hardin, who had
filed the bills and obtained the decree as counsel for the
complainants, being the highest bidder became the pur-
chaser at the price of $115, payable in three montha,
which he afterwards paid. And on the coming in of the
Commissioner's report, Busey, in pursuance of a notice
previously given to Hardin and the two complainaDts,
moved to set aside the sale and report on various grouods,
and accompanied the motion with a tender of the arooont
bid by Hardin, with ten per centum thereon, of which
he had given notice, and also with an offer to pay into
Court immediately, the residue of the decree, being the
debt of the complainant Elliott, which was not sa/isfied
by the sale. The two creditors united with the purcha-
ser in opposing the motion; and the Court having eon-
firmed the sale and report, and ordered a conveyance
to be made, Busey prosecutes this writ of error to re-
verse that order and decree.
The grounds re- The specific ground upon which it is now insisted that
tiSg ^is^e 'tie *^® ®^^^ should have been set aside, are: Ist, that flie
««ie* land was sold at a great sacrifice, the sum at which it was

struck off being less than one tenth of its value— 2d,
that the counsel or attorney who had managed the suits
and obtained the decree was the purchaser^Sd, that the
sale was conducted with comparative privacy, and was
too hastily concluded, without giving a fair opportunity
for persons who might be disposed to bid to know that
it was going on — 4th, that Busey having offered full re-
imbursement to the purchaser, and full payment of the
decree, the confirmation of the sale was an abuse of the
sound equitable discretion of the Chancellor.

It appears that at the lowest estimate, the land at the
time and on the terms of the sale, was worth #1200; and
one of the witnesses states that he had intended to bid,
but being on the bench of the County Court then in ses-
sion, he did not know that the sale was going on until
after it was over ; that he would have bid the entirt
amount of the decree for one half of the land. The salt

SPRING TERM 1842. 409

took place as directed ia the decree, at the court house Btiswr
door and on a couit day. There were but ten or twelve Habdin^ac.
persons present, of whom the purchaser and another were
the only bidders. And although there were persons in
the court house, and a crowd in the street at about one
hundred yards distance, it does not appear that it was
known to any except those immediately present that the
sale was going on. The precise time during which the
sale was continued is not proved, but it may be inferred
from facts proved, that it did not exceed fifteen minutes,
and was probably considerably less. The Commission-
er stated that his report showing a compliance with the
terms of the decree, was true; that there was no fraud
or unfairness on his part or on that of others; that when
the land was offered Busey forbid the sale, oniwhich he
had expostulated with him. It was proved that before
the sale, both the Commissioner and Hardin who had
became the purchaser, had advised Busey to pay up the
amount of the decree as a means of avoiding a sacrifice,
or of completing his title. And it may be assumed as
shown by the record of the suits in which the decree
was rendered, that Harris, &c. the debtors, had no other
means of satisfying the decree except the land or the
price of it due from Busey, who it appears had become
responsible for Harris for between five and six hundred
dollars, the amount of his debt to Lillard, in compro-
mise of a suit brought for its coercion, about the same
time with those on which the decree was rendered.

The two prominent facts, that the land was sold at a Great inadequa*
grossly inadequate price, and that the counsel who had l^liSS^i *by
obtained the decree and represented the complainants J°i"p,|^ ^^^l
was the purchaser, have often been noticed by Chancel- lateiy been no«
lors as being calculated, even when separately consider- ceUora ' ^
ed, to excite the most vigilant scrutiny into all circum- SS"Sj aJdaS^
stances which might affect the fairness or demonstrate ^| ^J^« ^^
the unfairness of the sale. The latter fact alone, that the latter has
the purchase was made by the attorney, has sometimes ^Sid^Td^ffi.
been deemed sufficient to vitiate a sale as being against ^S"Mur*orSe
"the policy of justice." And although this Court has not la^-".
gone so far as that, it is said, that a sale at which the at-
torney purchases at a grossly inadequate price, should be
Vol. n. 52

410 BEN. MONROE'S REPORTS.

^""^ considered as, per se, in the twilight between legal fraud
MAKPiN,Ae. and fairness, and that slight additional facts, exhibitinga
semblance of unfairness, would be sufiScient to vitiate
the sale or make the purchaser a trustee: HowdVs heirs
vs McCreery, 7 Dana, 389-90, and cases cited; For
man, djj^c. vs Hunt, 3 Dana, and cases cited. These
authorities establish a distinction more or less broadly
marked in the opinions of different Chancellors, between
the case of a purchase by a stranger, and by the attorney
or counsel who has had the management of the suit.
Mor« slight addi- I^ ^^^''^ ^^ ^^Y g^ound for such a distinction as we

irS*to*8h?w^nn' ^^^^^ ^^^^^ ^^> ^^ ^^^^^ "P^^ ^^® superior knowledge of the
iairnessinesaie right and of the subject of sale which the attorney has,

vill incline the , - , . ,. -.i .1 .. j il

Chancellor to set by reason of his connection with the suit, and upon the
where the com^ Presumed influence which he has over the time and roan-

fie^ ur"h**^ — "®^ ^^ *^® ^^^^* ^'^^ ^^®^ *^® person who makes it, by
and it devolves reason of his representing the party for whose interest

purchasing^ ^°o primarily, the sale is to be made. The eflfect of this dis-
SSIJ e?tue \ak- tinction, if any weight be allowed to it, mast be that
BOM in Uie sale, slighter additional facts, (ending to show unfairness,

will suf&ce to vitiate the sale in one case than in the other.
A stranger unconnected with the suit and with the person
making the sale, may perhaps rely upon a literal com-
pliance with the requisitions of the decree as entitling
him to the benefit of his speculation, if he has himself
done nothing unfairly to aflfect the sale. The attorney
being himself, to some extent, implicated in the manage-
ment of the sale, must show that it is perfectly fair—that
the spirit and true intent of the decree has been com-
plied with, and that due regard has been paid to the in-
terest of all concerned, by making such efTortas thecii-
irumstances indicate to be fair and reasonable to get the
ijest price that can be procured for the property. And
surely if the circumstances demonstrate that a fair and
reasonable effort has not beeri made to get the best price,
and that in consequence of this failure, the attorney has
been able to make a great speculation with a correspond-
ing loss to the party on the other side, neither the princi-
ples of equity nor that policy which consults the stability
of judicial sales, and the confidence which should be re.
posed in them> requires that the attorney should be con-

SPRING TERM 1842, 411

firmed in his speculation, and especially if the disaffirm- ^^**^
ance of the sale could be attended with no injury, not Harpin, ac.
even the injury of delay to the party to whose benefit the
sale is decreed.

The Chancellor takes no delight in being the instru- 2S?c8 no*deiJ^ht
ment of speculation to one and of loss to another party, in being the m-

ta • -^u 1 J 1 • u 1* A Ai. strumentofspcc-

It is With great repugnance and only m obedience to the uiaiion to one
policy just indicated, and to the necessity of regarding ?o"anothe?^Mr!
primarily, the interest of the party who seeks, and is en- ty—and the^n-

* •' r J i ■» • glish Chancel-

titled to relief, by having his demand coerced, that he is lors not unfrc-

often compelled to confirm sales fairly made, but at an SMdlngs^'to' V«

inordinate sacrifice. According to a practice which has o&erMid deport

prevailed in England, so little right does the highest bid- of a moderat*

der at the Commissioner's sale acquire by that single cir- sale.
cumstance, that although the fairness of the sale be un-
impeached, the Chancellor will often, and perhaps gen-
erally, open the biddings upon the offer and deposit of a
moderate advance upon the former bid.

This practice, it is true, does not prevail in this State, The highest bid-
but it is not to be doubted that the Chancellor here as deJ ^^ ^dic*ee»"
elsewhere, has a broad discretion, limited only by sound ^?®^ ^^^> ihlr'S-
equitable considerations, in the approval or disapproval sale under eze-
of sales made by his commissioner. The accepted bid. any ^dependent
der at such a sale acquires by the mere acceptance of his puJ^cVase^^oom^
bid no independent right as in the case of a purchase un- piete<i, but is

* " * nothmg more

der execution, to have his purchase completed, but is than a preferred
nothing more than a preferred bidder or proposer for the pose" for *thd
purchase, depending upon the sound equitable discretion ]e°?to?oiffiraia'
of the Chancellor for a confirmation of the sale made by tionbytheChan*
his ministerial agent: Forman, df^c, vs Hunt, (3 Dana,)
Campbell vs Johnson, (4 Dana,) In determining this
discretion, a regard to the interest of the creditor and to
the stability of judicial sales, has necessarily a large in-
fluence. It is this policy which has rejected here the prac- ,
lice of opening the biddings simply on the offer of an
advanced bid. But there is a still higher policy, that of
maintaining the purity of decretal sales and of preserv.
ing the public confidence in their entire fairness, which
must override even the policy of giving stability to them ;
and the Chancellor, whose sanction of a sale by his torn-

412 BEN. MONROE'S REPORTS.

fiofiT roissioner, makes it his ovm, cain never lose, sight of this
HABDiN,«e. highest element of equitable discretion.
~~ " Giving effect to these principles, and considering the

advantages which the attorney for the successful party ia

the suit has, when he becomes a bidder for the subject of

the suit, we think it is going far enough in his favor to

say that his puichase, at a grossly inadequate price, shoald

not be deemed absolutely unavailing; and we concur fal-

ly in applying to such a purchase what was said in HmD-

dVs heirs vs McCreery, that it is in the twilight between

fairqess and unfairness, requiring but slight additional

facts, exhibiting a semblance of unfairness, to avoid poi-

chase or make the purchaser a trustee.

The faimcat to- ^' ^^^ already been intimated that the fairness reqai-

quired in man- siteto support such a purchase, consists not merely in the

by 'commiBsion- observance of the formal requisitions of the decree,

Sckne^ and"de- ^hich would give the sale such a semblance of fairness as

pend prindpaiiy might, perhaps, support a bona fide purchase by a stnur

siances exisiin^ ger, at whatever sacrifice to the owner, but also in a fair

mvLsi be^iiii io &nd leasonable effort at the time of the sale, to get the

the coramiMi'on- ^®^* P'^^® ^^®* •^^ ^^ procured. The precise manner in
cr and Uie conn- v?hich this effort is to be made, and the precise extent to
his' connection which it is to be carried, may be unsusceptible of defiai*
iSurt^ls^^tinder tiou. They must depend principally upon the ciicum-
fti^JiiTfefrl? stances existing at the time, and must be left mainly to
done, 80 far as the discretion of the commissioner who condacts the
and if he\ttend sale. But that it is his duty to make such an effort,
>ame5tobVfor though not exprcssly prescribed by the decree, is news-
ihkt object. sarily implied in the nature of his office, and of thetbisg

which he is commissioned to do, as well as in the ebaA
acter and principles of the Court, whose representative
he is ; and even the counsel is under some obligatioia
arising from his connections with the suit and with the
Court. Having obtained the decree, and being entitled
and presumed to have some control over its execution, be
is so far as he acts at all, under similar obligations with
those of the commissioner himself, and his attendance
on the sale should be presumed to be, in part at least, for
the purpose of seeing that the commissioner fully p9^
forms his duty, or at least of advising him in this respect.

SPRING TERM 1842. 413

When, therefore, instead of performing this duty on Bcmbt
his pert, be puts himself in opposition to it by becoming Habphi, m.
a bidder for his own benefit, and instead of preventing a ^.
failure of duty on the part of the commissioner, he takes for complainant
advantage of it with a view of realising a speculation for aioner'a saiell'not
himself; and when, moreover, the failure of the commis- url'oF'dut/^by
sioner to make a fair effort to obtain a better price, may, ^om*T, but for
to some extent, however slight, be attributed to the fact becoming a^bid-
that the -counsel has become a bidder, we think these ad- gnc'h '^ T^ wml
ditional facts exhibit such a semblance of unfairness as ^1'°*^®°^'?^".':

nesa aa ahould

sboald induce the Chancellor to disapprove and set aside induceUieChan-
thesale; and especially when the only question affecting abide' Uie aail,
the interest of any of the parties, is whether the purcha- greltlnad'^ul"
ser shall realize an enormous profit, with a corresponding ^^ P'^<^»-
loss to the owner of the property.

A slight reference to the facts already detailed, will suf- ^^^ ^^ p^'-
fice to make a proper application of these principles to missiooer'a sale
the present case. The commissioner and the counsel Zn'» ^couDsd]
both knew that the land was going for not more than f^^ ilnd^offe?*!
about a tenth of its value, and for not more than half of wasaii the prop-
the debt for which it was decreed to be sold ; and they satisfy the^ d^
both had rason to believe that the land being thus sold, Srt/'''^^ok|
there was no other property or means of satisfying that o/i*8°°i*^*'*d
poitionof the debt which might remain; and yet, al- made within a
though the sale was made within a few feet of a number court**' hoiwe
of persons in the conrt house, and within a few yards of ^efe^man ^*r*.
many others in the streets, it does not appear that it .was "^o^ «^d man/
known to any others besides the ten or twelve who were atretia, Tnd lO^
immediately present, of whom two only were bidders, or mediaieJy^^ pJSl
that there was any effort made either by loud proclama- '^^h ^^. ^ud

. ' 1 .. 1 ^ 1 proclamation to»

tion or otherwise, to make it known to any others or to caU the atten*

attract the attention of the public, or that the sale was thL°d^i8tance%u

continued for such a length of time as to afford a fair op- ghowSJ^iS^th*

portunity fpr diffusing, by casual means, the information com'r. did not

of the fact that it was going on. What might not, under to* procure* S©

ottier circumstances, be deemed undue haste or privacy h?a conduct ^u

in conductinir the sale, must, as we think, be so deemed f cquiesced in by

J , , , . 1 A J . "• counsel and

Quoer the circumstances above noticed. And as it can- liie sale ahonid
not be doubted that the paucity of bidders and the small- ^"«*"*^*-
ness of the sum bid, nf^ust be attributed mainly to this
^mparative haste and privacy, we think it may be fairly

415 BEN. MONROE'S REPORTS.

Botbt presumed that the haste at least with which the sale wm
HAKBnr,«e. concluded, may be ascribed in part, if not wholly, to the
fact that the counsel for the parties for whom the money
was to be raised, was the bidder.

That the circumstances indicated to the commissioner
the duty of not striking off the land for so small a bid
without first ascertaining that there was no reasonable
ground for expecting an advance bid, and that this was
not ascertained in a manner which should have been sat-
isfactory to himi is sufficiently manifest. Let it be sop.
posed then, that the counsel for the creditors had not at
tended the sale; we think it must be presumed that the
commissioner, feeling that the entire responsibility of the
proceeding rested on him, would not have closed the sale
at a bid so far below the value of the land, and which
not only left one half of the decree unsatisfied, but acto-
ally lost to the creditor, until he had, by loud and repeated
proclamations, invited the attention of all within the
range of his voice, nor until he had so prolonged the sale
as to leave no reasonable ground for expecting farther
bids; or if the counsel had attended, not as a bidder, but
as the representative of his clients, intent only on having
their debts made, is it probable that the sacrifice of the
debt of one of his clients would have taken place with-
out some further effort to procure additional bidders? This
cannot be presumed. And the fair inference is, that the
commissioner seeing the counsel for both complainants a
bidder for the land, supposed, as he had a right to sup-
pose, that he was taking care of the interest of both of
his clients, and that at least the first object of the sale,
the satisfaction of both debts, would be accomplished at
whatever nominal price he might purchase the land. He
might possibly have supposed that he was purchasing
merely as a security for the debts of the complainants-
But waiving this last supposition, it is sufficient that the
failure of the commissioner to make a fair effort to get t
better price, was wholly or in part owing to the fact thai
the counsel was a bidder; and indeed there being snch a
failure and the counsel being the preferred bidder, the
firima facie presumption is, that the 'latter circumstanet
was the canse, wholly or in part, of the firat. And wt

SPRING TERM 1842. 416

make this presumption in the present case, without im- ^^^^
pating or supposing that there was the slightest intentional Hhbdin, 4w.
fraud on the part either of the counsel or the commis'
sioner. We will add that the main ground on which we
think the report and sale should have been disafiSrmed,
is that the commissioner did not make a fair effort to get
the best price for the land, and that the counsel, who was
the purchaser, acquiesced in this failure of duty.
Nor is it material to the present inquiry, that either ^i^en proMitjr

• J. al'Jaa-l'I'^ "l ^ Jim been sold by

m obedience to his duty to his clients, or by arrangement the commission-
with them prior or subsequent to the sale, the counsel has fJr^it^avcl^^k!-
satisfied, or has undertaken to satisfy the whole amount »^W»t® P"ce,

. . And failed to sat-

of the decree, and has thus propitiated the concurrence isfy the debt te-
of both his clients in support of his purchase. This Siadef &*bonght
circumstance does not affect the question whether the ^)[^°™?^"'*"^'f

^ counsel, and

sale was fairly conducted and with a reasonable effort to com'r. haa not

. , ' . J ., , jl • • ^scd proper e!-

procure the best price, nor does it lessen the injury pro- forts to procure
doced by the failure in this respect, either to the debtor or J?u,bt'no^o*i^^
to the claimant of the property. For although the origi- ^o' '• j^"^"^ {^
nal creditors may be entirely satisfied, one half of the that the purcha-
debt still remains as a charge against the debtor; and al- qf/entu) thesaie^
though the claimant of the land is perhaps no better off Se d^etree^tn fa-
than if the counsel had bid the whole amount of the de- ^orof his client,
cree for the whole tract of land, yet he is, in all proba- purchaae^
bility, milch worse off than if a fair effort had been made
to procure a fair price for the land which was prevented,
as has been seen, by the conduct of the commissioner
and the counsel ; and if such efforts had been made as
that the biddings had been carried up to the value of the
decree, it cannot be assumed that they would have then
stopped at one fifth of the value of the land, but the pre-
sumption is, that eta fair sale, on a County Court day,
when one person at least had intended to bid the amount
of the decree for one half of the land, some portion of
the land would have been left to the claimant, Busey.

It is contended, however, that Busey had no right to The conduct of
complain of the sale and of the inadequacy of the price land has been
bid, because of his having forbidden the sale, claiming to y^;*^^^^^^^
have a deed for the land. But conceding iheii, prima <*W .**»« 2}|«»
facie, this imprudence on the part of Busey might be pre- fie- when a sale
sumed to have affected the subsequent bidding to some chanc'eUor, 2e

416 BEN. MONROE'S REPORTS.

BosET extent, it surely did not absolve either the commissiomt

Hardin, ac. or the coonsel of the complainants from their doty of

conveyance not- conducting the sale fairly, with a view to obtainiDg the

does not absolve best price for the land, and of course it did not deprive

c^urt from aim him of his right to object to the sale for a failure in this

using all proper respect. But in point of fact, it cannot be supposed that

exertions to pro- ^ i

cure a fair price the biddings were, in any degree, affected by this con-
counsef should duct of Busey. For it does not appear that he presisted
away the^cfffect ^^ ^is opposition to the sale after the remonstrance of the
of such dcciara- commissioner. But if the commissioner explained the

tions by one who , . , i , • i i t i . i •*

was concluded subjectto the bystandeis, as he should have done even if
the^Le?^^**' ^ Busey had not interposed, all must have been satisfied

that, being concluded by the decree, his opposition was
of no consequence, and if this was not explained, this
omission, coupled with the knowledge of the counsel who
made the purchase, derived from his connection with ibe
suit, would itself be a strong circumstance condemnatoiy
of the sale.

It remains only to say, in answer to an objection made
in this as well as in the Circuit Court; that although the
conveyance to Busey was pronounced fraudulent, it was
only avoided for the benefit of the complaining credilois
and to the extent of their demands; and that, consequent
ly, the title to so much of the land as might remain after
satisfying this decree, would, so far as these parties are
concerned, rismain or re-vest in Busey. Whence it fol-
lows that he was deeply interested in the sale, and espe-
cially in the question whether the whole or a part of the
land should be taken. He had, therefore, an undoubted
right to make the motion to set aside the sale, and also
to prosecute this writ of error for reversing the decree
confirming it.

Wherefore, the decree and order overruling said mo-
tion, and confirming the report and the sale to HardiUi
and ordering a conveyance to him, is reversed, and the
cause is remanded with directions to set aside the report
and sale, upon Busey's paying into Court, on a day to be
named, the sum bid and paid by Hardin, with ten p^
centum thereon, as offered, and legal interest on the ag-
gregate amount from the day of its former tender id
Conrt, and also the balance which may be due on ib0

k.1

. SPRING TERM 1842. 417

principal decree in favor of the complainants, George and ^os*
Elliott, after crediting the net sum produced by the sale Commonwealth
to Hardin ; the said sums to be disposed of by the Court
according to the respective rights of Hardin and the com-
plainants, seeing that the decree is fully satisfied.

Owsley (^ Goodloe, Semit and Draffin for appellant ;
/. 2). Hardin and S, Todd for appellees.

Ross v$ Commonwealth. Ikdictmbkt.

Appeal from the City Court of Louisville. Case 133.

Indictment Nuisance. Parliceps criminis.

Chief Justice Bobertson deliTered the Opinion of Uie Court. May 31,

This writ of error brings up for revision the question Questions pre-
whether the owner of a house (in a city) kept by his "ented by Uio re-
tenant, with his knowledge and presumed consent, as a
bawdry, and rented by him "to be kept as such," and
with a knowledge that it would be so prostituted, is guilty
of aiding in a public nuisance, and is, therefore, punish-
able by indictment for a misdemeanor.

As the keeping of a bawdy house is a public offence, Every person

'^ ,° , 1 .1 'J • ^ i!^- 1 • 1. ^^^ ▼oiuntanly

every person who voluntarily aids m establishing such a aidsinesubUsh*
pestilent nuisance, should be deemed guilty of a misde- hl)^se*ia^j^Tuy
meanor. Although an unlawful intention or motive, ^^ * misdemea*
without any corresponding or consequential act, is not
cognizable by our criminal code, yet an act done by one
person for the purpose of exciting or facilitating a crime
by another, may, according to the common law, be an
indictable offence. And it has been adjudged in many
cases, that an attempt to incite a crime may be a misde-
meanor, even though the contemplated crime itself may
never be perpetrated. In The King vs Higgins, (2 East,
6,) it was adjudged that Higgins was punishable by the
common law for soliciting a servant to rob his master,
although the robbery was never committed. And in the
King vs Philips, (7 lb, 464.) an indictment for a misde-
meanor was sustained for endeavoring to incite a chal-
lejage to fight.

Vol. II. 53

418 BEN. MONROE'S REPORTS.

EoM The principle of these cases would not, however, ap-

CoMHONWBALTm ply to the Tenting of a house to be kept as a bawdy house,
The mere rent- unless it shall have been accordingly so prostituted ; for
house to b^e kei2 the house not being converted into a nuisance, the mere
as aba\vdy house, ^^^ ^f fentinff it should not, in our opinion, be deemed

IS no oflfence un- o , .it,

less it be so kept, an Unlawful incitement to a nuisance, when the lessee

nor is the act ot , , .. ... . . i*. i _ » j

Belling a house had a predisposition to establish one somewhere, and
i?i1^dicubie*of^ would have been as apt to be guilty of doing so without
fence. renting that particular tenement.

The owner of a Nor, for the like reason, would the mere act of selling
eaiirM*wei/a8 a house to or building ono for a woman known to be a
raoraiiy respon- bawd, be an indictable offence, whatever use she might
inai use made of afterwards make of it as her own property, over which no
his ^knowledge Other person would have any dominion, and for the nuis-
es^edaU "to his ^^^^ ^^ which, therefore, by herself, she alone should be
piohu responsible. Her chief motive for buying that particular

tenement, and the only purpose of the vendor or under-
taker for selling or building it, may be presumed to have
been its desirableness to her as property, and the value
of the price to him. And her subsequent prostitution of
it could not be considered as instigated by, or as result-
ing from the vendor's act of selling or the mechanic's act
of building that paiticular house, to be used by her as her
own absolute estate.

But the owner of a house might be legally as well as
morally responsible for a criminal use made of Ais house,
with his knowledge and consent, and especially to his
profit, when the vendor would be clearly irresponsible,
both in law and ethics, for a similar use of her own house
by his vendee.
If lessee convert ^^ ^ lessee Convert the demised tenement into a moral
the tenement in- nuisance, and the owner leased it for thai purpose, or,

to a moral nuis- ... •' «

ancc, and the knowmg that it would be SO prostituted, derived any profit
forlhat purpose, or advantage from renting it for such use and to such a
u wSSrd"be^\*o tenant, which he would not otherwise have enjoyed as
prostituted, de- certainly and beneficially, he might be deemed a pflWiccps

med any profit , . / , • i_ i_i r • j rT t -n

from its being crimims, and punishable for a misdemeanor. Such lUe-
p^posc'tosuch gal use of Ais house by his bailee, with his purchased
wouFd no?i!S«^ co'^sent and virtual co-operation, would, in judgment of
wise haft enjoy- law, be his act, quantum en Ulo, as far as in him lay.

SPRING TERM 1842. . 419

Whether such was the purpose or sueh the knowledge . Boss
and profit or advantage of the lessor of a house to a noto- Commo^wbalw.
rious bawd, would be a question of fact to be decided by cd, as certainij
a jury, upon a consideration of all the circumstances, cfaliy'^he^might
And although the mere act of renting a house to a woman ^« punished as
known by the lessor at the time, to be a bawd, might not nU. * ^ ^^'
be, per se, a misdemeanor, nor necessarily imply a crim-
inal purpose or co-operation on the part of the lessor, yet
we cannot say that such a fact would, in no case, author-
ize a jury to infer such purpose or co-operation. The pro-
priety of such a deduction, from such a fact, would de-
pend, in every case, on the complexion of the case as
seen by a juiy of practical men, through the medium of
personal knowledge and peculiar circumstances, often
minute, indefinable, and separately impalpable to a revis.
ing tribunal.

The lessofs intention, motive, or purpose, upon which
alone his legal guilt or innocence must depend, is a fact
which a jury is most competent to determine correctly,
and have, therefore, the exclusive right to consider and
decide, unless there should be a palpable destitution of
any evidence tending to prove a ciiminal intent.

In this case the indictment, charging a renting of a aq indictment
house to a notorious bawd, io be kept as a bawdy house, rentmg*^ of ^
and such keeping of it by her accordingly, imports that, xSEwTba^S^Aj
in making the lease, the lessor was influenced by the un- ^n^ ^ * bawdr

t n 1 r • • 1 bouse, and sucn

lawful purpose of encouragmg a nuisance, and was, keeping of it by
therefore, guilty of wantonly aiding the criminal prosti- impoTts°thatf m
tution of his own house, and therefore, the indictment is [J^^^^cMor ^ w"*

good. influenced by the

And we are also of the opinion that the Circuit Judge pose of encour'
did not err in leaving the facts to the jury, nor in over- *««5»'i^«*nc«.
ruling a motion for a new trial. As already intimated, The facts, that
we cannot judicially determine that the fact, as indisputa- uiat the lessee
bly proved, that the lessor knew that the lessee was a The^dMuse^wi
bawd, and the fact, as certainly proved, that she did use house, with his
his house, with his knowledge and apparent concurrence, apparentconcur-
as a public house of prostitution, and the fact, also prov- liirhous^of pros-
ed, that he derived ample profit from her occupancy, and hede^^cdampfe
not improbably some advantage from such illegal use of P'^fit for iu oc-
it, did not authorize the jury, presumed to be well ac- authorise aju^

420 BEN. MONROE'S REPORTS.

^^^ quainted with the parties, to infer through the peculiar at-

OasAs. • mosphere as seen by them around the case, that it was

* to find the fact Ws purpose, when he leased the house, that it should be

mfipose^o? the ^^ piostituted, and that he was a voluntary and mercena-

fessor that the jy co-operator in the illegal use accordingly made of it by

be used aa a his tenant. And such an indictment as this, and on such

Mdthat he°\vas facts as those proved in this case, the Supreme Court of

Sie unFawt^iuse ^^^sachusdls aflBimed, on common law principles, a
made by the les- judgment of conviction in the case of the Commonwealih

see

vs Harrington, (3 Pickering's, Rep. 26.) And although
that Court and this may not have reached the same con.
elusion by precisely the same process, still their decisioD
in that case corroborates ours in this.

It is, therefore, considered that the judgment for the
assessed fine of $21 be affirmed.

Wilson and Ballard for appellant; Gates, AUo. Gen.
for the Commonwealth.

2m4fS0\
96 5491

Assumpsit. Calk VS Orear.

Case 134. Error to the Bath Circuit.

Merger. Assumpsit.

Ap^ 23. Chibf Justice Robertson delivered the Opinion of the Court

The case stated. The plaintiff in error, (Thomas Calk, Sr.) being in-
debted to the defendant in error, (John D. Orear,) on
an implied assumpsit for a wagon made for him, and at
his instance delivered to his infant son, ( Thomas Cali,
Jr.) The latter, without his father's authority, executed
to Orear a promissory note for the amount due, and
which was intended to be the note of Thomas Calk, Sr.
and was so received by Orear.

Thomas Calk, Sr. refusing to recognize the said note
as his obligation, Orear sued him in assumpsit on the
original consideration, and recovered a judgment— now
sought to be reversed on the ground that the parol liabil-
ity had been merged in the note.
The execution of But we are clearly of the opinion that there was do
thrls^'Vau! ^"^^ merger, because the note having been unquestiona-
thorized, for a biy accepted as the obligation of Thomas Calk, Sr. and

SPRING TERM 1842. . 421 j

being void as to him and hitherto repudiated by him, it Calk
could not be deemed a legal satisfaction or extinguish- 'Obear.

Eient of his pre-existent liability. And, therefore, were simple contract

it admitted to be technically the obligation of his infant ceWed^ m^^ the

son, on which Orear might sue that son and escape the J°>„®^jp°/ ^^J

plea of infancy; nevertheless he cannot be required to not merge the

'^ •' i_ i_ simple contiact.

make any such hopeless experiment, as the note has not
merged or extinguished the father's original liability in
assumpsit.

The judgment is therefore affirmed.

Morchead 4r -Kccd for plaintiflf; Apperson for defen-
dant.

Petition for a se-h baring,

tiy Moiehead & Reed.

The counsel for the appellant in this case, feel reluct-
antly compelled to petition the Court for a re-hearing.
They do so in a full knowledge of the influences to which
their judgments may be liable, from the interest they
would naturally feel for the cause of their client; and
therefore, keeping that influence in view, they would not
have intruded this petition upon the time and attention
of the Court, did they not believe, in their deliberate
judgments, that the Court had overlooked some features
in the cause which, if observed, .might have resulted in a
diflferent opinion.

We will briefly exhibit such facts, from the record, as
are deemed essential to the satisfactory presentation of
our case.

Orear sued Thomas Calk, Sr., the plaintiflf in error,
iipon an implied assumpsit, for $110, the price of a wag-
on, which he proved he (Orear) had made, and traced
it into the possession of the plaintiflf, giving other evi-
dence conducing to show, that Calk had contracted in
parol for the same; he proved the wagon was worth the
money claimed, and closed his proof. The plaintiflf in
error then called on the defendant to produce a note in
his possession, to be read as evidence on the trial of the
^anse, under a notice to that eflfect, before the jury was

422 BEN. MONROE'S REPORTS.

Calk swom; and thereupon the defendant prodaced the fol-
Oreas. lowing note:

*'$1 to. Dae John D. Orear one hundred and ten dol-
lars, for value received of him this 7th day of March,
1840. Thomas Calk, Jr. for

Thomas Calk, Sr,"

This note was read in evidence to the jury. Tho. Calk,
Jr. (who was the son of Thos. Calk, Sr.) was then sworn
on his behalf; he proved that some time before the wag-
on was made, his father sent him to Orear to have an
ox wagon made according to certain specifications, with
which we need not burthen this petition; that "in March,
"1840, he went to Orear's shop for the wagon, and when
"he went it was done and he told Orear he had come
"for it; Orear then informed him he could not get it un-
**less he executed a note for the price or paid the money;
"that he then executed the note which the plaintiff had
"produced, and which has already been referred to; and
"that when he was sent to Orear*s by his father, he was
"instructed to get the wagon and bring it home, and be
"executed the note at the request of Orear, for the price
"of the wagon, and that Orear took it in that way. He
"executed the note as his father's and not his own. His
"father, when he told him he had executed said note,
"said he ought not to have done it. He also proved he
"was not 21 years old at the time he executed said note,
"nor yet."

The note executed by Thomas Calk, Jr. was unques-
tionably his sole obligation; the father was not bound bj
it in any intent whatever, and it being an obligation of
a higher dignity than the father's assumpsit for the wag-
on, and having unquestionably been given in considera*
tion of the father's assumpsit, if it was the note of Calk,
the son, and as such, binding on him, it was as complete
a merger of the unwritten contract as ' though it bad
been executed by the father himself. The notef of one
partner, if given upon a contract of inferior dignity, is
prima facie, an extinguishment of the partnership lia-
bility. As such it will not be deemed even a collateral
security; but in the absence of opposing proof, it will

SPRING TERM 1842. 423

be considered the single obligation of the party making ^^^^
it: see Doniphan <^ Smoot vs Gill, 1 B. Mon. 200. Og'^**

If then the written obligation of one of two partners
will, prima facie, be deemed an extinguishment of a
firm parol liability, surely the execution of an individual
note by the son in this case, who, in law, is a stranger,
would have the same effect; and the execution of a note
by a stranger in every sense of the word, would be at-
tended by similar consequences. There may be, and
certainly are, stronger reasons (in the case of a firm
transaction of this sort) contradicting the idea that the
note was intended as an extinguishment of the firm debt,
than in a case where a similar transaction takes place,
as between strangers. In the former case, by accepting
the written obligation of one member, a valid joint ob-
ligation upon both is destroyed; a single obligation is ta-
ken upon one, who, without the obligation was bound
and the other is released, ipso facto, if it was so inten-
ded. In the latter case the obligation is transferred from
one person to another, a stranger, and there are strong
reasons operating to make the presumption almost con.
elusive that the obligation was intended to be a satisfac-
tion of the first debtor's liability. A, the first debtor,
may be insolvent and the debt is transferred to B, the
second debtor, and who binds himself by the writing,
the creditor has no inducement to make the transfer be-
cause B is solvent and would not be bound without
the writing. In the case of the firm debt, although one
may be solvent and the other insolvent, both were bound
for the debt. The only conceivable motive, therefore,
which could operate on the mind of the creditor to take
the note of one of the members, omitting the name of
the other, is, that the character of the obligation may be
elevated. We have made these preliminary suggestions,
not with the view of gravely pressing the idea upon the
Court, that a written obligation of a stranger is prima
facie evidence that the writing was given in satisfaction
of the unwritten contract for which it was given, where
there is such unwritten contract — this we all know; and
it would be doing injustice to ourselves to suppose we
would deem an argument upon such a proposition, with

424 BEN. MONROE'S REPORTS.

Calk such a purpose, necessary; our object is rather toshowr,
Obrar. and keep the idea in view, that there are various grades
o{ prima facie evidence, as well as conclusive eYidenxx^
each of which will be dependent upon its own peculiar
circumstances for the force of its persuasiveness, thus
arguing in the end that the jury should have had a ques-
tion which is yet to be brought to the attention of the
Court, and upon which we may here state, this petition
is based.

It may be set down, 1st, that in law this note is the
obligation of the son ; to be sure, if the son were sued
upon it, there might be circumstances which would for-
bid a recovery as against him, though we question wheth-
er he could attain his defence elsewhere than in fchancfr
ry; but, in law, upon its face, it is his own obligation and
that of no one else; it is no where, neither in W nor
chancery, the obligation as such, of the father.

We may also set down as a proposition, about which
there can be no dispute, 2d, that prima facie, it was re-
ceived in satisfaction of the father's assumpsit.

If then this is in truth and in fact the debt of the son,
and if it is prima facie, an extinguishment of the fathers
debt, the father surely had a right when sued on his ori-
ginal contract in assumpsit, to rely upon that fact Test-
ed then by this obvious principle of law and justice,
what right had the Court below to refuse an instruction
hypothecated on this very idea. Calk asked the Court
to tell the jury that "if they believed from the evidence
that Thomas Calk, Jr. was bound by said note for the
price of the wagon, that then they must find for the de.
fendanf The instruction, it is true, might have been
more aptly worded if the Court had been asked to tell
the jury "that if the note was given in satisfaction of
Thomas Calk, Sr's. assumpsit for the wagon, then they
must find for the defendant;" but the instruction as ask-
ed is this in substance: if Thomas Calk, Jr. was"&wwf
by the note, then it was given in satisfaction of ihe as-
sumpsit; if he was not bound, then it was not givtn t»
satisfaction of the assumpsit; and now should not the
Court have given that instruction? The whole issue
turned upon the question as to whether or not the note

SPRING TERM 1842. 425

was given in satisfaction oi the assumpsit of the father; ^*'*

if there was evidence conducing to show that fact, should Ohbah.
not the Court have thus instructed when asked? Surely.
Was there not evidence conducing to show that fact?
Unquestionably. Was not the note itself prima facie
evidence of the fact? It has been so decided a hundred
times. ^If it was, is not the barrier between the Judge
and the jury broken down forever, if the Court under-
take to refuse an instruction based^ upon evidence, be-
cause the evidence does not show the fact so as to satisfy
the mind of the Judge? The question is not what is the
weight of the evidence, nor how strongly does it tend
to establish the issue; but does it tend that way — does it
conduce to show the fact? If so, be the tendency never
so faint, the Judge must let the jury have the fact — if
faint and unsatisfactory the jury will apply the corrective;
and here was the error of the Circuit Judge. He be-
lieved the weight of evidence, (and in this opinion be
was unquestionably right,) was for Orear, and hence re-
fused the instruction ; and this we are forced to believe
is the error of this Court.

The Court say, Thomas Calk, Sr. refusing to recog-
nize the said note, &c., (the Court makes the evidence
too strong when it uses the foregoing terms.) Thomas
Calk, Sen. never did refuse to recognize the note, but
merely told the son "he should not have executed the
note." But this Court go on to say, **but we are clearly
of opinion there was no such merger, because the note
having been unquestionably accepted as the obligation of
Thomas Calk, Sr., and being void as to him, and hither,
to repudiated by him, it could not be deemed a legal
satisfaction in extinguishment of his pre-existent liabili-
ty; and therefore, were it admitted to be technically the
obligation of his infant son, on which Orear might sue
that son and escape the plea of infancy; nevertheless, he
cannot be required to make any such hopeless experi-
ment, as the note has not merged or extinguished the
father's original liability in assumpsit.*'

The Court is of opinion then, there was no such mer-
ger "because the note was unquestionably accepted as

the obligation of Thomas Calk, Sr." and that it "was
Vol. II. 54

^tt* BEN. MONHOE*S REPORTS.

^^ void as to him." We repeat, that we think the weight
^^^^ — of evidence showed that there was no such mergen but
does not the Court perceive that the question of merger
or no merger is here token from the jury, or rather the
facts, which in law constitute a merger, are taken from
them. Suppose the son had been sued; suppose he had
proved that it was agreed between himself and Orear
that this was to be the obligation of the father; that he.
in no event, was to be bound for the note, that he execu-
ted it as the obligation of the father; that it was his fa-
ther's note, and this was proved by a dozen credible
witnesses. Suppose Orear sues the son and proves by
a single witness of disreputable character, that he, the
witness, was present at the same time and no such con-
versation took place. Suppose then Orear asks the Court
to tell the jury -that if they believe from the evidence
that Thomas Calk, Jr. did execute the note in satifiic-
tion of the father's assumpsit, they must find for him."
can the Court refuse the instruction? And are not the
cases perfectly analagous? Because, therefore, the Court
below refused an instruction which was the law of the
case, and which was hypothecated upon a state of Acts
properly before the jury, thereby taking the consideration
of that state of fact from the jury, and because this
Court has followed up that opinion, believed for the fore-
gomg reasons, to have been erroneous, they are most
respectfully solicited to review and reverse the case

Respoitsb,

^^ ^^' ^ By Chief Jasiice EoberUcsn,

This we considered a plain case, and therefore tiie
opmion OS delivered, was as short and comprehensive as
we could make it, so as to be intelligible and responsive
to every essential question that could be judicially rais-
ed m It. We still consider it a very plain case even on
the able and ingenious petition itself.

The petition properly admits, that the note is technic-
ally that of the minor son, and was neither aathorized
by, nor is legally obligatory on the father. It also coo-

SPRING TERM 1842. 4IT

cedes that» unless the note, aa the obligation of the infant Cale

son, was accepted in satisfaction of the father's liability, Oekae.

this action may be maintained on the implied assumpsit.

Can there be any doubt that the note was not accepted^

as the obligation of the son, in satisfaction of the father's

liability? Did not that son himself testify, as his father's

witness, that the note was given and received as the fa-

ther's, and not as his own obligation? And that was the

only evidence on that point except the style of the note

itself, and the fact that the son was a minor and proba*

biy also destitute of the means of payment; both of

which circumstances only confirm that son's testimony.

How then would it have been possible for the jury to

have found that the note of the son, intended and under*

stood as such, had been given and accepted in discharge

of the father's debt? They could have had no pretext

for such a finding.

But moreover, even if we could be wrong in this con-
clusion, there was no error in refusing to instruct the ju«
ry, aa asked, "that if Thomas Calk, the son, was bound by
the note they must find for the defendant,'* for, admitting
the note to be binding on the son, is the conclusion either
necessary or even rational, that therefore, it was, when
given, understood to be binding on him and not on his
&ther, and, with such understanding, was accepted in
discharge of the demand against his father? The very
converse is obvious and indisputable upon the proof in
the cause.

We cannot, therefore, perceive a semblance of error
in the judgment. The case of Doniphan vs Snwot, is
decisive of this case.

Petition overruled.

428

BEN. MONROE'S REPORTS.

May 31.
The ease Rtoted.

Covenant. Logan, &c. Turnpike Road Company vs

Pettit.

Case 135 Error to the Caldwell Circuit.

Pleading. Consideration,

JVDGS E^NO delivered the Opinion of the Court.

This was an action of covenant brought on a paper
signed by Pettit, for stock to construct a turnpike road
from Russellville to the Cumberland river. The cove-
nant binds the subscribers "to pay fifty dollars for each
share set opposite to each of their respective names, ia
such manner and proportions and at such times as shall
be required by the President and managers of the said
company, and agreeably to an act of the General Assem-
bly of Kentucky incorporating said company, approved,
16th Feb. 1838." The defendant pleaded, in substance,
that it was agreed between him and the plaintiffs that the
road should be made on the bed or rout of the old road,
and be run by the house of the defendant, and that if it
were not so run, he was not to pay for the shares sub-
scribed by him, and avers that it was not so run, and
that the location of the same as aforesaid, near the house
of tho defendant, was the only consideration of his sub-
scription. To this plea there was a demurrer which was
overruled by the Court, and a judgment rendered against
the plaintiffs, who have appealed to this Court.

The face of the covenant and law to which it makes
reference, shows the terms and true consideration upon
which the covenant was made, namely, the erection of
the road^as prescribed by the charter, or the undertaking
to do so. And Pettit having signed the subscription list
without condition or restriction, or a variation of those
terms, must abide by them and be presumed to have un-
dertaken to pay upon the consideration implied in the
covenant and the law. To allow him to aver another and
different consideration, would be to allow him to inter
polate and prove by parol, other terms and conditions i^^
those expressed or necessarily implied, and that without

IneoTanant, itis
not competent
fox defendant,
without anj al-
legation offi^atid
or tni^akej to
arer a different
consideration for
the covenant
than that set
forth on its face*

SPRING TERM 1842.

429

the averment of fraud or even of mistake, if the latter
could .be taken advantage of at law. The plea was,
therefore, bad, and the demurrer to it should have been
sustained.

Judgment reversed and cause remanded, that the de-
murrer may be sustained.

Morehead c^ Reed for plaintiffs ; Owsley fy Goodloe for
defendant.

Taylor

Cox.
Same

Lahcastbb.

Taylor vs Cox. Same vs Lancaster. Ejectment.

Appeal from the Boone Cihcuit. Case 136.

Ejectment Possession, Evidence.

JoDes MAitSHAi.L delivered the Opinion of the Court. May 31.

In this action of ejectment, brought on the several de- j^^ ^^^ stated.
mises of Janies Taylor and others, the jury found sepa-
rate verdicts for the defendants, John Cox and Thomas
Lancaster, and the plaintiffs motion for a new trial, as to
each, having been overruled, a separate judgment was
entered for each defendant, for the reversal of each of
which judgments, the plaintiff has appealed to this Court.
The two cases, thus growing out of the same trial and
standing on the same record, will be considered and de-
cided together.

The action was brought in October, 1838, for land in
possession of the defendants, lying within the boundaries
of John Harris' sixth survey of 6000 acres on Bank Lick
and Licking, patented in 1815 to John Crittenden, and
also within the boundaries of a patent to John Fowler,
dated in 1811, and of a patent to Ash, Morgan, &c.
dated in 1794. The defendants claimed to hold under
Fowler's patent. The lessor, Taylor, claims a several
title to the whole of the land in controversy, by a long
possession, commenced in 1795, and also exhibits a con-
veyance to himself of a partial interest, undivided, in
Crittenden's patent, and of a similar interest in the sen-
ior patent of Ash, Morgan, &c. The other lessors are
patentees or heirs of patentees, in the last mentioned pa-
tent. But fionie of the patentees have not demised to

430 BEN. MONROE'S REPORTS.

Taylor the plaintiff, and of course, so far as his right of reco?ery
Cox. depends upon his showing title, derived from the patent

y^^ of Ash, Morgan, &;c. he can only recover to the extent of
Lawcastbk. ' ihe interest of the lessors in that patent; and so far as his
light depends upon title derived from Crittenden's patent,
he can only recover to the extent of Taylor's interest ia
it. But if the lessor, Taylor, acquired the right of ent^
by length of possession merely, and independently of
the two patents in which he claims an interest, then upon
his demise the plaintiff might recover the whole of tbe
land except so far as the right may have been barred by
the continued possession of the defendants or of those
under whom they claim. But there cannot be any re-
covery upon the title of either of the lessors of any land
of which the defendants or those under whom they claim
may, for seven years before the commencement of the
Buit, have had possession by residence or occupancy ad-
versely to the plaintiff's lessors, and under a claim deriv-
ed from the Commonwealth.
The evidence conduces to prove that, as early aa 1796»
tenis conflief Sk John Crittenden took possession of Harris' sixth survey to
tak^n^undeTthe ^^® ©xtent of its boundaries, with a small exception, not ne-
junior patent, cessaryto be specified, by entering and improving within
none under the the boundaries of the patent of Ash, &c. and held and
heid^^'foT moie claimed it as his own by having agents and tenants on
u'a'^bM to"n i- ^iff^^®"^^ P^'^ts of it, (except as to 1000 acres which may
jectment, and have been held under one Breading,) until about the year
authorize a re- 1810, when he sold it and transferred the possession to -
^Mewo°? trtfJ! ^be lessor, Taylor, in whom it was afterwards, in like
And insuch case manner, continued for many years, and until more than

tho* possession iji i^. at

be taken under twenty years had elapsed from its commencement. iNo
flicting^^ pauSSi possessiott had been taken under the elder patent, either

TionVs he^id"uni ^" ^"^^^ ^^ ^^ ^^y ^^^^ "°^^^ ^^"8 *^^®^ ^^^ cxpiralion of
der the junior, twenty years from Crittenden's entry, and at the time of

unless it be with- ,. .V,. , ^ .it

in Uieiap, itwiu his entry there does not appear to have been any posses-
pJeJioM^^Mw! sion adverse to him. He, therefore, acquired possession
■ion under the to the full extent of Harris' sixth survey, and the same

Junior patent, . , , . , . « i

though it had not possossion was transmitted to and contmued in Taylor,
for 20 years.'^but unlessas to the 1000 acres above mentioned, it was held
SJUt^i^encl^ ^y Breading. This being the state of tie possession in
sure. 1811, when Fowler's patent issued, and afterwards; the

SPRING TERM 1842.

431

entry made by one Klitte» by authority of Fowler, upon
the interference between Fowler's patent and the elder
patent of Ash, &:c. but outside of Harris' sixth survey,
with whatever intention it may have been made, or what-
ever may have been its effect in gaining or giving a pos-
session of so much of Fowler's patent as did not inter-
fere with Harris' survey, could not gain any possession
within that survey, which was already possessed by others
to the extent of its boundaries, even though such posses-
sion by others had not then continued for twenty years;
because, there was no entry upon the possession thus held
adversely to Fowler, and without such entry that posses-
sion could not be divested, but remained unaffected by
the entry and improvement made under Fowler's patent
outside of Harris' survey: Poague's heirs vs Chinn's
heirs, (4 Dana, 60;) Harrison vs McDaniel, (2 Dana,

349-60.) And as there was, in fact, no entry under
Fowler and' within the survey of Harris, until 1828 or
1829 or 30, it follows, that there could have been no
twenty years possession of any pait of the land in con<
test under that patent; and that there was no interruption
tmder that patent of the possession commenced by Crit
tenden and continued by Taylor or by Taylor and Bread-
ing until the entry made in one of the years just mention-
ed. These positions are unaffected by the question
whether or not Taylor or Breading had any tenement or
actual inclosure within the interference of Fowler's pa-
tent with the survey of Harris; for their possession was
taken before the emanation of that patent, its extent was
not limited by the boundaries of the survey on which that
patent afterwards issued, (even if such survey had theii
been made,) and neither the subsequent making of the
survey nor the issuing of the patent could have divested
or contracted the existing possession, which, though not
clothed with any documentary title, could only have been
divested by the junior patentee by actual entry upon it.

But in the year 1816, and probably before the date of
the patent to Crittenden, the possession taken by him in
1796, and transferred to Taylor, had continued for twenty
ytars; and assuming that it was taken by Crittenden,
^ming the land as his own and adversely to all othen.

TaYIX>S

Cox.
Sams

Lancastbs.

432

Tavlor

Cox.
Same

Lancaster.

The possession
of one co-part-
ner enures to the
benefit ofy and is
the possession of
the other.

BEN. MONROE'S REPORTS.

and that it was transferred to Taylor by absolute sale, and
held by him also, as his own, independently and adverse-
ly to the world, then at the expiration of that period, so
far as the land was thus held by Taylor, he had the right
of entry, not only against the eldest patent which had is-
sued before the possession commenced, but also against
the junior patents of Fowler and Crittenden; and upon
this hypothesis, any entry afterwards made under either
of those patents., upon his constructive possession, would
have confined possession only to the extent of the actual
pedis possessio or enclosure of the person making the en-
try. For so far as the possession or the right of posses-
sion was concerned, Taylor then had all the rights of an
elder patentee. And it is well settled that when the
elder patentee is in possession to the extent of his boun-
daries, as he may be by entering upon any part of his
patent before the junior patentee enters upon the inter-
ference, a subsequent entry upon the interference by the
junior patentee, confers no possession beyond his actual
close: Chiles \s Jones, (7 Dana, 633;) Slilh vsjms,
(same, 433;) Harrison vs McDaniel, (2 jDflnn, 349-
50;) Massee vs Currie, (l Dana, 266;) Skrmvs Sum-
mers, (same, 239; 2 Marshall, 448; 5 Monroe, 543;)
and the effect of any such entry upon the survey of
Harris, &c. under the patent of Fowler, was in like man-
ner restiicted to the actual close. If the right of entry
arising from the twenty years' possession adverse to the
patent of Ash, &c. vested not in Taylor but in Critten-
den or in him and Breading.

But before any such entry was made on the survey oi
Harris, and under Fowler's patent, Taylor had, by deeds
of 1819 and 1821, acquired an undivided interest in the
elder patent of Ash, &c. And except so far as the ngnt
of entry under that patent had not been previously de-
stroyed by adverse possession, the union of that title witn
Taylor's possession had the effect of constructively ex-
tending his possession for the benefit of himself and his
copartner, to all such parts of the said elder patent »
were not held adversely, and also of restricting tothe«*
tual close, the possession gained by any subsequent en-
try under the junior patent of Fowler. But at that time

SPRING TERM 1842.

433

there seems to have been no possession within the inter-
ference of the three patents adverse to Taylor or Critten-
den, unless the Breading tract of 1000 was then held
under Breading adversely to them. It seems, also, that
at that time every portion of the interference between the
three patents had been held in continued possession, ad-
verse to the patent of Ash, &c. for more than twenty
years, unless there had been an interval in the possession
of the Breading tract, at or after the time when that tract
was acquired by him; so that there may not have been
twenty years possession in Crittenden or in Taylor and
Breading before that interval, nor in Breading after it»
until the year 1822 or 1823, when his possession ceased,
and Taylor, holding an interest in the elder patent of Ash,
took possession of the 1000 acre tract, by putting a ten-
ant on it, and so continued, except so far as he may have
been disturbed by an entry under Fowler's patent in 1828,
or 1829, or 1830, until his tenant was evicted by Bread-
ing's heirs or alienee in 1834; before which time, (viz,
in 1825,) he had acquired an interest in Crittenden's
title.

Upon the evidence, the question whether there was or
was not a continued possession of the Breading tract for
twenty years, adversely to the patent of Ash, &c. before
Taylor took possession in 1822 of 1823, is left entirely
uncertain. But the early history of that possession is
only material for determining whether, at the time when
Taylor entered upon it, the right of entry was in Bread-
ing, or belonged to the title of Crittenden or to that de-
rived from the patent of Ash, &c. But however this
may be, it is certain, upon the facts now appearing, that
the right of entry was not in Fowler's patent. And as
the possession, to the extent of the boundaries of the
1000 acres, as well as outside of them, was in Taylor,
holding an interest in the elder patent, and also in Crit-
tenden's title either wholly or in part, when the entry or
entries were made in 1828-9 or 30, under which the de-
fendants claim ; it seems to be certain that those entries
upon the constructive possession of Taylor, being made
without right, could have given no possession beyond the

actual close, though the right of entry may have been in
Vol. IL 56

Taylok
«•

Cox.
Samk

Lakcaatbi.

434 BEN. MONROE'S REPORTS.

Tatlob Breading and not in Taylor, or those under whom ba
Cox. claimed. And as it appears that neither the defendant,

^JJ* Lancaster, nor John Cox, had any inclosure within the

Lawcastik. Breading tract, though it includes some of the land claim-
ed by Ihern, it follows that they have no possession within
the boundaries of that tract, and, therefore, it is unne-
cessary to decide whether the right of entry, as to that
tract, was in one of the lessors or in Breading. The pos-
session of that tract not being in the defendants, cannot
be recovered in this action, and it is immaterial who has

the title*.

If, however, it had been material to determine as to

ApowerofattoT- ' ' ,.,. ^j^i «. tl-

ney, purporting the nature of Breading s mterest and the effect of nis
icute? iff Tsoi," possession, we are of opinion that the power of attorney
tffie '"a^ *°cSS- of 1801, purporting to be executed by the heirs of John
Tcyance of land, Harris, and by Crittenden and wife among them, and to
porting to be authorize a conveyance to Breading of 1000 acres of the
^ce\hcreof and land of Harris, on the waters of Bank Lick creek and
*Wkofthe^ro^^ Licking river, and the deed of 1804, purporting to be
«€r court, dated made in pursuance of said power, and the fee bill of
ing to be^for^^the Taylor, dated in 1803, (if proved,) containing charges
the ^powe7'*an5 against Breading apparently for recording the same ponr-
writing the deed, er and for Writing and recordinff the saoie deed, should

•re competent 7 , i #. i . ▼

■evidence in 1833, not have been excluded from the jury. It seems to us
antiquity^ \ho^ that the antiquity of the power and deed, coupled with
Smey^was^not ^^® influence arising from the fee bill and the presumption
lecordcd nor arising fiom the possession of the land, as the jury might
cicntiy proved, have found it even sufficient to authorize the reading of
Son" had^Teen ^^^^e instruments, though the power was not recoidedin
held in confer- time, nor Otherwise sufiiciently proved.

miiy tojsuch dooj t • i • t

uments of title. It remams to be said in relation to the possession of

A possession Crittenden and the right derived therefrom, that if he did

h^^^^^one^ jo?nt "°^ ^^^^ posscssion, claiming the land as his own exclu-

owner, and held sively, but took and held it under Harris* claim, for the

th3 possession of benefit of the proprietors thereof, and so transferred it to

a posrtsifon" u Taylor, the right of entry gained by the continuance of

^ii^TBei"^ \^he *^^^ possession for twenty years, vested in the persons

joint tenant who entitled to Harris* survey, and unless Crittenden was the

itquire^the^'ie^ sole proprietor thereof, it did not vest in him exclusively,

fuch possession ""^^' ^^^ P^^^^^ ^^sued to him; and so if Crittenden took

tattiaa to his and held the possession exclusively for himself, claiming

SPRING TERM 1842. 435

the land as his own to the boundaries of the survey, and Taixo»
Taylor acquired and held the possession not absolutely as Cox,

his own land, but in subordination to Cfittjenden, and «t

looking to him for a completion of his title, the continued l^wca^tib.
possession operated . to vest the right of entry in Critten- ^^^'^^^ ^*
den, and could only be transferred to Taylor by convey-
ance, shown or presumed, from Crittenden or his heirs,
or by such continued adverse possession in Taylor a»
would of itself give a right of entry. It has already been
said, that if the possession was taken and held by Crit-
tenden for himself, independently, as of his own land,
and was transferred' to Taylor by executed sale of the
land, and was held by him independently, the right of
entry was invested in him at the end of the twenty years,
against all the patents.

The instructions, numbered 7th, 8th and 9th, given on
motion of the defendants, relating to the extent of the
possession that might have been acquired by the entry of
Klette, upon the interference of Fowler's patent, with
that of Ash, Morgan, &c. and by the subsequent entries
of the defendants, or those under whom they claim, with-
in the interference between Fowler's patent and Harris*
survey, seem to be erroneous, or at least misleading, in-
asmuch as they imply that the jury might find that by the
first entry Fowler acquired possession to the extent of his
patent, without regard to the constructive possession of
Taylor or of Taylor and Breading, and also, that the sub-
sequent entries of the defendants, or those under whom
Ihey claim, within the survey of Harris, might give them
possession beyond their actual enclosures, notwithstand-
ing the possession of Taylor, and though the right of
entry was not in them or in Fowler, under whom they en-
tered; which finding, under our view of the law, as stated
in this opinion, the evidence did not authorize. The in-
struction, number two, given for the defendants, import-
ing, that if they had been in peacable possession for
seven years, of the land in contest, and embraced by
certain deeds therein mentioned, which are conveyances
to Taylor or his grantors, of the title under the patents of
Ash, &c. and Crittenden, said deeds should be disregard-
ed, must also be deemed erroneous, inasmuch as it does

436 BEN. MONROE'S REPORTS.

'^^w ^" not make out a case of champerty, which would render

Cox. the deeds void, nor of such possession of seven years as

^" would, by barring the action, render the deeds ineffectoal

LiNCATTBR. f^j. ^jjy purpose of the suit; and as the evidence would

not have authorized the rejection of the deeds on either
of these grounds, the instruction was calculated to mis-
lead, and was prejudicial and erroneous.
The Court also erred in giving instruction, number
plaintiff in c"ct- eleven, that if the jury found for the plaintiff at all, it
Z^^'it^oTTift could only be to the extent that the defendants were in
only what of Uie possession at the service of the declaration. We sud-

piemisefl may "^ ^, . ^ , , , , , *^

BavebeeninpoB- posethe recovery, if there should be one, should include
dtfenTant\\ t^e »ot Only any extension which the defendants may have
IISt!^but°^o°/an? ^^^^ ^^ ^^^^^ improvements, after suit brought, if made
oxtenBionofpos- under their original claim of title, boundary and posses-

■ession Within . uai jjiij.

plaintiflTf claim sion, but also, any new and detached improvements
faSw? ^* ^^^^" which they may have made in the same period, and under

the same claim of title, boundary and possession, such
extended or detached improvements being also wilhin the
same title of the plaintiff, which was litigated in the trial.
There being, however, no evidence of any such extension
or new improvement, nor any claim of the defendants
but their original claim under Fowler, no instruction on
this subject seems to have been necessary or proper, but
the jury should have been left to find upon the proof of
title and possession under the instructions applicable to
those subjects, and the plaintiff, if successful, should
have been left to have the judgment executed in the usual
mode at his peril.
The t3th instruction, if given at all, should have been
, explained by adding that the patent and survey furnished,

of themselves, sufficient evidence that the boundaries
therein specified were actually demarked. There was,
also, oral evidence to the same effect.

The Court having instructed the jury, on motion of the
defendants, that there could be no recovery under the
patent of Crittenden, unless it included the entry or a
part of it, should also have instructed them, as asked to
do by the plaintiff, that the patent itself, furnished, pri-
ma facie, sufficient, evidence of such coirespondence.
Whether this instruction was given or not, is not certaiD,

SPRING TERM 1842. 437

the two bills of exception being contradictory on that Bohankon'sh's
point. The Court also erred in refusing a new trial, on StHRMrfLET's

the ground of error in the instructions, and of the verdict ! —

being against the evidence.

For which errors each of these judgments is reversed,
and each cause is remanded for a new trial, in conformity
with the principles of this opinion.

Caies ^ Lhidsey for appellant.

Bohannon's heirs vs Sthreshley's Ex'ors. Chancbry.

Error to the Woodford Circuit. Case 137.

Trusts and trustees. Limitation.

Gbibp Jubtioe Robertson delivered the Opinion of the Court. JuTie 1.

In February, 1817, William Bohannon, son-in-law of The case stated.
Thomas Sthreshley, being pressed by debts and wishing
to sell some of his slaves, made to the said Sthreshley
a bill of sale of three of his slaves (Mira, Jordan and
Laura,) for the recited considration of $1034, which,
as we believe from all the facts, was actually paid by
Sthreshley to Bohannon, and to the use of his creditors.
On receiving the bill of sale, Sthreshley handed it to his
daughter, Mrs. Bohannon, with an injunction to keep it
safely and an assurance that it would secure the slaves
to herself and her children. Her husband and herself
enjoyed the continued possession and use of those slaves
until his death in the winter of 1818. Sthreshley having"
administered on his estate, and become guardian for his
infant children, hired out the slaves and appropriated the
proceeds to the payment of the intestate's debts and the
maintenance of the wards and the widow, until 1822,
when he made a settlement with the proper County
Court, and refused to make distribution then of the
slaves, on the avowed ground that the adult heirs ought
not then to take any portion of them, but that he should
fetain them for the use of his wards during their minori-
ty. After that settlement the widow seems to have re-
tained Mira without question as to her right, and Sthresh-
ley kept Jordan and Laura, frequently declaring that

438 BEN. MONROE'S REPORTS.

BoHAMwoN'BH'a they were finally to be distributed among Bohannon's

STRHssBLir'f heirs, and used in the mean time for the benefit of his

' — wards; but sometimes also declaring that he had a right

to dispose of them as he might think fit. He died in

1829, and by his will, which did not mention any of

those slaves, he devised his estate to be equally distiib-

uted among five stocks of descendants, the heirs of

Bohannon constituting one of those stocks.

The father-in- I" 1831, the widow of Bohannou being dead, their

tSr^'JoSSif children filed a bill in chancery against Sthreshley'sex-

(whowMcmbarl ecutors, praying for a decree for Jordan and Laura zni

■laves; took a her increase. The executors resisted the decree on three

U*to hlt^daufh* grounds— 1st, that neither the complainants nor their

ter, enjoining its mother ever had a valid title to those slaves; 2d, that if

■afe keeping and

assuring her that they had, it had been lost by their election to claim un-

tbeTiSs tX^- der the will; and 3d, that their claim was barred by

Sn!,,*tStsifvl^s-l«P«eoftime.

lemain with the The Circuit Court dismissed the bill, and we are now

■on- in -law liU ^ . ,, , ,

his death; the fa- to revise that decree.

mfniiSitMeavei 1- O""" deduction from all the factsis, that Sihreshkfi

pert of the slaves djd [^ fact give the slaves to Mrs. Bohannon, or to her

m possobsion of ° \ t e

the daughter, and her children, and delivered to her the bill of sale for
forie^bcaefit^o" securing that gift. And there is strong evidence tending

Sen'o?°BoMn- *^ P^^^® ^^^^ ^^^ S^^^ ^^ ^^^ ^'^^^^ was only theexecu-

law, for whom tion of a promise to indemnify her for the price of a

dies and devises tract of laiid which he had ' settled her upon and verbal-

file Stocks this ^7 g^^en to her, but afterwards sold for his own benefit.
oSe^^*!'- Ho^ ^® ^^^ ^^^^ ^f ^^^ opinion that Sthreshley obtained

thiojg of those the possession of Jordan and Laura in his fiducial char-

thoseslaveswere acter as administrator of Bohannon, and guardian of his

thS Taugbtei^s i^fa^t children, and that he continued to retain them as

children (she be- guardian, never satisfactorily manifesting an intention

held by the fa- to appropriate them to his own use as his own property,

riSJ'his^Tife^as ^ven if such a determination could have affected the

theu trustee. rfghtof the children of Mrs. Bohannon.
LimitaUon can- 2. As the will does not mention these slaves, and there

to^ thJ^pww" ^^ ^^ satisfactory evidence tending to prove that the tes-

himself or his tator considered or claimed them as his own, or intended

wi^o^obtains anl to embrace them in the general devise of all bis estate,

Sf ^prS^wtT"'" ^° sufficient ground has been established for applying

trattee.batfirom the equitable doctrine of election.

SPRING TERM 1842. 439

3d. And, as it appears to us from what we consider a P^es

decisive preponderance of facts, that Thomas Sthresh- Hqghbs et <d.
ley obtained and held Jordan and Laura as a fiduciary, theiimeofopen-
in trust for the benefit of Bohannon's children, the lapse {[« ""81"^!
of time cannot operate as a bar either in equity or law, J^^g™/"^ ^ ^'
to the successful assertion of their right to them as cestui que trusts,
against his representatives, this suit having been brought
within about two years after his death.

Had there been conclusive proof that he had, in fact,
held the slaves avowedly and notoriously in his own ben-
eficial right, and adversely to the title of his said grand
children, the lapse of more than five years from the com-
mencement and announcement of such an adversary
claim and possession, might (so far as there was no
saving disability) have been available to his executors as
a bar to any suit instituted after that limitation. But
there is no such proof; and, therefore, time is unavailing
to the executors representing a trustee whose trust should
be presumed to have been subsisting at his death.

It is, therefore, our opinion that the bill should be
maintained against the representatives of the trustee,
Slhreshley, but subject to all equities as to compensa-
tion for maintaining his wards, concerning which, there
may be a proper enquiry hereafter.

Decree reversed and cause remanded.

Morthead if Reed for plaintiffs; Robinson <^ John-
son for defendants.

Page vs Hughes et al. Chahcskt.

Appeal from the Louisville Chaitcert Court. Cast 138

Specific performance. Lapse of time. Election.

Cflnp Jnsncx Bobxrtson delWered the Opinion of the Court j^^ 2.

Ov demurrer, the Chancellor dismissed a bill filed by ^, cweitated.
P<igtt as remote agsignee of a written agreement for a
conditional sale and conveyance of 46 feet of ground in
Louisville, fiom James Hughes to Bland and Coleman.
And this appeal seeks the reversal of that decree.

The contract purports to be a lease for the term of ten The eoBtnet

440 BEN. MONROE'S REPORTS.

P^®" years, commencing on the 1st of October, 1830, and
HoQHEa et ai, ending on the 1st of October, 1840, with a reservation of

annual rent, and with stipulations for improvements,
entry and distress, and concluding with the following
covenant: "the said party of the first part doth agree to
"sell the said demised premises to the said parties of the
"second part, their heirs or assigns, at any time before
"the expiration of the lease, in case they or their heirs
"or assigns shall pay to the said Hughes, his heirs or
"assigns, $2300, coin of the United States, and, upon
"the payment thereof, the said Hughes, his heirs or as.
"signs, shall convey the said demised premises, with
"general warranty," &c.

The annual rent, as reserved, was precisely equal to
the legal interest per annum, of the stipulated considera-
tion of the conditional sale, and may be presumed to
have been regularly paid.

On the 22d of October, 1840, 21 days after the expi-
ration of the prescribed term, Hughes having previously
died intestate. Page, as ultimate assignee of the forego-
ing contract, filed a bill against the administrator and
heirs of the decedant, praying for a specific execution of
the covenant of sale and conveyance ; in which bill he
alledged that the entire contract was intended by the par-
ties to it to be an absolute sale, but was made to assume
the form of a lease and conditional sale, for affording to
Hughes a.mp\e and satisfactory security; that Pagehsd
built, on the two fronts of the lot, two four-storied brick
houses, which cost him about $12,000; that he intended
to pay the $2300 within the term, but that the adminis-
trator was unwilling to receive it, being of the opinioo
that the heirs alone were entitled to it, and also, that the
heirs were non-residents, and many of them infants, so
that he did not know how, where, or to whom to make
payments.

The administrator admitted the allegations of the bill,
and admitted also, that the intestate had always consid-
ered the contract as one of sale.

The infant heirs, by their guardian ad litem, resisted
CoSrtbcfow.*^ the specific execution, and others of the heirs having d^

marred, the case was decided on that demmrer.

SPRING TERM 1842. 441

If this case be ii remediable in .equity, it is certainly a ^^^^

very hard and anomaloas one. Huoats «( oi.

Do the principles of equity, rightly understood and
safely applied to the facts, require such an oppressive for^
feiture on one side, and great speculation on the other!
The Chancellor thought they did. We think they do not.

It may be conceded that the contract, on its face, im.
ports a lease and a covenant to soil and convey for a
stipulated price, at the election of the covenantees or
their assigns, within the term of ten years, and conse-
quently we may concede that the contract of sale was not
obligatory on the lessees or their assignee, Page^ and
was not, therefore, mutual, especially after the expiration
of the period prescribed for the election. This construc-
tion, which more than one consideration shakes, places
the caseT in the most favorable aspect for the appellees.
But even thus considering the contract, without question
or scruple, we cannot avoid the conclusion that the de-
murrer ought to have been overruled.

When there is a want of mutuality in the obligation, ^"'^^ ^^
time is generally essential and indispensable in equity, of mntuaUty w
as woU as according to strict and inflexible law. And, chMe,**tira«''*ta
if Page had intentionally or negligently failed, either to fn'Miuy^tT u
elect or manifest his election, and offer to pay the $2300, ^v-
on or before the 1st of October, 1840, he should submit
to the loss of his buildings, great as it might be. Equity
ought not to help him from a forfeiture thus voluntarily
incurred.

But the facts of the case will allow, no doubt, that
when he built the houses, he elected to take the lot as a
purchase, and determined to pay within the prescribed
term, the stipulated price. Nor can there be any doubt
that Hughes himself so understood.

The bill also, though the allegations are general and a denraner

vague, may be understood as importing that Page had of- JuStoLd^to ^

fered, directly or indirectly, to pay the $2300 to Hughes' JJIii/gS^ ^

administrator before the expiration of the ten years; at heirs, making

least proof of that fact specifically, might be admissible u^if coSmoi

consistently with the allegations. And moreover, all al- Jj^^J ^^^

lowable deductions from the allegations being admitted thor^d wi re*

by the demurrer, we are satisfied that, on the issue of
Vol, IL 56

442 BEN. MONROE'S REPORTS.

Paoe law, the bill ought to be considered as alledging, not only

Hughes et ai. a willingness, but an offer, virtual or actual, to pay the

Sot complain- $2300, on Of before the 1st day of October, 1840. Be.

sides the demurrer admitted the express allegation that
the parties to the contract intended it as an unconditional
sale. An express admission to that effect, by Hughes,
had he survived and answered the bill, would have au-
thorized a decree for a specific execution, without anyne.
cessity for resorting to testimony forbidden by tlie statute
of frauds and perjuries.

Even upon these grounds, therefore, the demurrer
ought, as we think, to have been overruled.
A lapse of 21 ^^^ there is another and more comprehensive reason
days from the why, in our opinion, the Chancellor acted prematurely in

time a party who •' * , , . * '

was lassee, had dismissing the bill, and that is this, that, if there had been
chase^a lot,^not HO formal offer to pay the consideration within Ihe pre-
feftkg^thrifght scribed term, there was apparently a reasonable excuse
to do so under for the omission, and the appellees cannot be injured by

contract, when a ,,./.^-j
reasonable ex- the slip of 21 days.

fo/%uc" de\ay) ^^ ^^ses of Covenants to renew leases at the election of
Seee^reSsai of ^^® lessees, to be manifested within a prescribed time,
administrator to courts of equity have recognized the doctrine that a lessee

receive the pur- , .^ .• -r i i i i

chase money & cannot cocrco a speciDc execution if he voluntarily or
somriteaS-^ negligently failed to elect within the limited period: Ar-
Se heire^^" °^ Jniger vs Clark, (Bunb, 111 ;) The city of London vs

Milford, (14 Vez, 58.) But in Baieman vs Murray, (1
Ridgw, 170,) Lord Thurlow said that "accident or mis-
fortune, which he could not prevent, by means whereof
he was disabled from applying for a renewal at the stated
times, according to the terms of his lease," might save
a forfeiture and entitle him to a specific execution. And
this seems to us to be perfectly consistent with the phy-
losophy and harmony of equitable jurisprudence. It is
recognized too, by the master of the Rolls, in the subse-
quent case of Rawstome vs Bentley, (4 Brown's Chy,
Rep. 417,) and is fortified by the liberal spirit which
characterizes that case. And is it not also corroborated
by the principle of the adjudged cases in which parties
have been relieved from forfeitures resulting from a non-
compliance with expiess conditions, when there was

SPRING TERM 1842. 443

neither negligence nor injurious delay, and full compen- P*®*

sation could be undoubtedly made? HirraBs et ai.

Then, according to these principles, what is the equi-
table aspect of this case, upon the meagre facts now im-
perfectly exhibited? The heirs, and not the administrator,
had the technical right to the price of the lot. The ad-
ministrator, therefore, after consulting counsel, AQiexm'vci'
ed that he would -not receive the money. Why did he
consult counsel unless he knew that Page intended to pay
the money? Page could not, therefore, pay the money to
the administrator. How could he pay it to the heirs, non-
resident, scattered and unknown, and many of them in-
fants? Besides, he was not bound to make payment
without obtaining a peifect conveyance with warranty;
and that he could not have procured without a suit in
Chancery. That suit he therefore brought. Must he for-
feit to those heirs his valuable buildings only because his
bill was not filed against them on the 1st instead of the
22d of October? We think not. Could be have found
them all and had he ofiered to them the money, they
would have had no right to it without making to him a
conveyance, which he ought not to have received. Their
absence and disabilities were no faults of his. How then
can it have been material to them whether the suit,
which their condition rendeied unavoidable, had been
instituted 21 days sooner than it was? There is no ground
for imputing to Page bad faith, culpable negligence, or a
voluntary non-compliance with the letter of the contract
of sale. And there can be no doubt that he had long de-
termined and was anxious to consummate that contract
and secure his costly improvements. It seems to us that
the facts would not authorize the presumption that he
would not have tendered the $2300 to Hughes, within
the ten years, had he survived to the end of that time.

These facts constitute a sufficient excuse for his failing
to pay or tender the money on or before the 1st of Octo-
ber, 1840. And, as a suit became indispensable, the
bringing of it on the 1st of October could not have been
material to the interests of the heirs, because, without
the suit, there could have been no doubt as to his having
elected to pay for the lot and receive a conveyance of the

444 BEN. MONROE'S REPORTS.

P<M title ; and, therefore, the heirs could not have been sub-

Huona et al jected to any vefiation or loss by uncertainty as to what he

had determined to do and would do, whenever they should
be willing and able to comply with their father's cove-
nant to make a title. Under the circumstances of the
case, the filing of the bill within the term of ten years,
was material for no other purpose than that of manifest-
ing an election to buy and an ofier to pay for the lot on
the prescribed terms. As already suggested, that elec-
tion had been long before clearly indicated by unequivo-
cal acts. Those acts, it is true, did not bind Page— nor
would even the filing of a bill, within the ten years, have
bound him; for had he filed it on the 1st, he might have
dismissed it on the 2nd of October; and, interpreting
the stipulation respecting a sale as altogether unilateral,
neither Hughes nor his representatives could ever have
coerced the conventional price. The only mode of sel-
ling it was an elective payment of it. Had the payment
been made or tendered within the prescribed period of
election, there could have been no escape from the obli-
gation to convey the lot. If there be no such obligation
now, or if it may be eluded, the only reason for such a
conclusion must be Page's failure to pay or tender the
$2300 on or before the 1st of October, 1840. That fail-
ure does not appear to have been elective or voluntary,
but rather seems to have been a consequence of circum-
stances beyond his control, and resulting from the conduct
or condition of the representatives of Hughes.

The utmost, therefore, that Page could have done on
the 1st of October, was to manifest, in some mode, his
election to take the lot as purchaser, and offer to pay for
it. The filing of a bill was certainly not the only effec-
tual mode of either making or announcing that election
or offer. The purpose of the suit is to enforce an elec-
tion previously made, and which, though not perhaps an-
nounced in words, because there was no person able or
willing to respond, was yet most emphatically and intel-
ligibly expressed by acts unequivocal and conclusive as
to the fact of election to purchase, and only equivocal or
inconclusive as to the intention to pay the price within
the prescribed time. But this want of certainty as to »

SPRING TERM 1842. 445

payment or tender within the ten years, if the condition P^gb

of Hughes' representatives had either permitted or ren- Hvgbcs et al
dered such an act necessary, could not have been conclu-
sively obviated by the filing of a bill on the 1st of Octo-
ber, 1840, with even an accompanying offer also to pay
the money, which could not have been binding until ac-
cepted. Such an offer would not have proved either that
Page then had the money or would have paid it within
the prescribed time to any person or persons qualified to
receive it and make the conveyance. The filing of such
a bill within the term, would have been more prudent and
safe than the course which has been adopted ; but it would
not have been more beneficial lo the representatives of
Hughes nor insured to them an earlier or a more certain
payment of the $2300.

It does appear to us, therefore, that Hughes' represen- Where the aa-
tatives cannot, with a good conscience or grace, insist on fi^"^* § *yea»!
a forfeiture to themselves of Page's houses, and that he J^^^ of^fhcn^ u-
might yet obtain a decree for a conveyance of the title to i^'n« the propcr-
ihe lot without violating any doctrine of equity or prin- pike, ^^makes
ciple of justice. IZlVTe^Tl

But if there might be any doubt as to his equity, upon tfn'^^a^n •nJ"^*^*'
the facts now exhibited, it may, perhaps, be removed by to purchase, and
an amendment of the bill, or by proof of facts not now the *'hefr8**kre
clearly appearing. Xra n^J-'^il

Whatever may be the ultimate result of this suit, it is ^5"?» ""^ ^*»«

» . 1 I 1 . 1 1 . , adm'r. refuse to

our opmion that the demurrer ought to be overruled, the receive the pur-

case permitted to be fully prepared, and that such decree SS?uu"broJita

should be rendered on the merits, as shall finally ap- Sccx^Tiioii f

pear to be equitable, according to the principles of this l^^ iea««» it vio-

^'' latea do princi-

Opmion. pie of equity or

Decree reversed and cause remanded. there is no fSl

Gw^Aric for appellant; Pirtl^and Thruston for appel- /?*\«''« of uie

1 '^'^ * ^'^ n«ht to purchase

Ides . an d hola the pre-

mises.

446 BEN. MONROE'S REPORTS.

Debt. Bamctt, Administrator of Towles t;^ Ste-
phens' Administrator.

Case 139. Appeal from the Hardin Circuit.

Assetls. Administrators. Slaves.

June 1. JuDaB Ewing delivered the Opinion of the Court

The points pre- This case was before this Court at the fall term, 1838,
sented for revis- ^^ ^[^q appeal of Stephens* administrator, and the main

features of the case, together with the principles then
settled, will be found reported in 7th Dana, 267. Bat
few additional facts were established on the second trial,
and none calculated materially to change the aspect of
the case. Two questions only arenow raised, which we
deem necessary to be noticed, that were not then settled.

1. Are the hire and increase of the slaves in contest
assetts in Barnett's hands as administrator.

2. If they are, can the hire which has accrued {ifter the
date of the writ, up to the finding of the jury, be assessed
and found as assets in his hands.

The hire and in- We are clearly of opinion that the affirmative of both
crease of slaves (hese propositions is true. As an administrator, holding

in tne possession *^ * * w

of an adm'r. are the slaves as acknowledged assets, their hire and in-

assettB ia his , ^'i*! i t r i*i_v

hands for admin- crease are as much assets in his hands, and for which he
much so' as the Stands accountable as the slaves themselves. He is
slaves are; he is an accredited trustee, bound to hire them out, and to ac-

an accredited

trastee & bound countfor all the increase and profits, as well as for the
Mcount foTboth slaves themselves. And it has been said that even if he
hire 6t increase, g^jj them, without a necessity to do so for the payment of

debts, that he is accountable, not only for the value of
the slaves but for their hire, to the distributees. Bar-
nett's contract of purchase being fraudulent and void as
to creditors, the slaves are as much assets in his bands as
administrator, for the payment of debts, as if the pre-
tended purchase had not been made, and being assets
in his hands for that purpose, he is equally accountable
for increase and hire.

And it was the duty of the jury not only to find whether
he had well and truly administered all the assets that

SPRING TERM 1842.

447

had come to his hands, but if they found that he had not,
to find also the assets that had come to his hands and
were unadministered, and the value thereof; and in esti-
mating the value it was their province and their duty, not
only to ascertain and assess the value of the slaves, but
also the value of their Aire, up to the finding of the ver-
dict. For the one as well as the other, are assets in the
hands of the administrator for the payment of debts.

Nor is therp any thing in so estimating the hire, in-
consistent with the well established analogies of the law.
Id detinue for slaves, the jury having found that the de-
fendant did detain, are required not only to assess their
value but also the value of their hire up to the finding of
the jury. And in a proceedng in chancery against a trus-
tee or fraudulent purchaser, each may be made liable, not
only for the value of slaves held in trust or by a fraudu-
lent purchase, but also for the hire up to the final decree.

There being no error in the giving or refusing instruc-
tions by the Circuit Court, and the case having been fairly
submitted to the jury, and upon facts which authorized
their finding, at least to the extent of the judgment ren-
dered, the judgment is affirmed with costs, &c.

jB. Hardin foi appellant, Cotes <^ Lindsey for appel-
lee. .

Chancbllos

Vanhook and
Bbookino.

In a suit against
an adm*r. the
jury should esti-
mate^ the hire
and increase of
slaves up to the
day of their find-
ing, as assets —
so is hire esti-
mated in detinue
and so the Chan-
cellor requires
trustees to ac-
count.

Chancellor vs Vanhook and Brooking. Chawcbky.

Error to the Harrison Circuit. Case 140.

Ddivery bands. Executions, Equity and equitable ju-
risdiction.

Jimei EwiNO delivered the Opinion of the Court. June 1.

Two executions for four hundred dollars each, and in- The case atated.
terest and costs, in favor of Vanhook against Brooking,
were sued out of the Clerk's office of the Harrison Cir-
cuit Court, diiected to the Sheriflf of Nicholas county,
and by his deputy were levied upon a negro man slave
by the name of Jim, and Brooking & Chancellor as his
security, executed a bond under the statute for his deliv-
ery at Carlisle, the Court house of Nicholas, on the 19th

448

BEN. MONROE'S REPORTS.

Chancbllok

Van HOOK and
BROOKrNa.

of October, 1840, at 12 o'clock. Chancellor lived twen*
ty -three miles from Carlisle, and on the evening before
the day of delivery Jim was sent by Brooking to the
house of Chancellor, and early in the morning on the
next day Chancellor and the son of Brooking set ont
with the honest intention of delivering the slave at the
time and place appointed, and in dae time to have done
so; but attempting to travel through the country bye
road which they were told was nearer than the ordinary
way, and with which they were not well acqainted, they
got lost, by reason whereof and by reason of a heavy
rain which fell after they set out, by which the road,
which was hilly, was rendered slippery, they were delay-
ed and prevented from reaching Carlisle until between
one and two o'clock; that immediately upon their arri-
val Chancellor tendered the slave to the Sheriff in dis-
charge of his bond, who, after some hesitation and con-
sultation with counsel, received the slave and took anew
bond with Chancellor as security for the delivery of the
slave on the next County Court day. The slave was de-
livered and the new bond executed by Chancellor under
the full conviction that thereby he was discharged from
all liability on the first bond. And the slave was after-
wards delivered at the time and place designated in the
last bond, and ultimately sold and the whole proceeds
applied towards the discharge of the executions. But
it appears that the Sheriff, under the direction of coun.
sel, and without the knowledge of Chancellor, re-levied
the executions on the slave, and the new bond was taken
under the last levy. Notwithstanding which, the first
bond was afterwards returned to the office as forfeited,
and after the sale of the slave under the last levy and ap-
plication of the proceeds to the executions, an execution
was taken out on the forfeited bond against Brooking
who is insolvent, and Chancellor as his security, for the
residue of the amount of the executions not made by
the sale of the slave, and has been levied on the land of
Chancellor, to enjoin the sale of which and be released
from further liability, he filed his bill in chancery charg-
ing the foregoing facts. His injunction having been dis.

SPRING TERM 1842. 449

solved and bill dismissed without prejudice, he has ap- Chaho«ixo«
pealed to this Court. Vawhook amo

It is certainly questionable whether the Sheriff, after ^—

he has taken a delivery bond under the statute, and the Qii,CanaSheiiif
time for delivering the property has passed by, can make fg/ a^^/af a7d
a new levy under the executions in his hands; and it is ^^J^ ^ox^^Sl
still more questionable whether he can make a new levy property levied
upon the property committed to the hands of the surety levy before dis-
to be delivered, and still hold up and return his bond as Srai?*oT°^if ^*
forfeited. The statute prescribes his duties, which is to ™y *? ^> ®**

' he make a new

receive and sell the property delivered, or to return the levy of the eama
bond to the oflSce as forfeited, and upon which a new ex. propertyfiraUer-
ecution may issue. If he receives and sells the property, jatn^he^^daof
it would seem that it ought to be regarded as a waiver of tiie surety in the
the forfeiture, as the object and end of the law in requir- placedtheietobe
ing the bond has been attained, and the more especially suuhold up* the
as the property has been taken from the hands of the ^^ and wluw
surety, where it was placed by the principal, and who in it f^eiud.
good conscience might have a right to retain it for his in-
demnity against his liability upon his forfeited bond, if
the same is to be afterwards treated and returned as for-
feited.

But waiving this view of the subject, the substantial ^bect'wad^i^
object and aim of the law was to secure a faithful deliv- of the law, in
ery of property levied on, at the place and on the day de- execuiiolfof de^
signated, with the view to its being subjected to sale in ^ ^'Lcur^'the
satisfaction of the execution; and though it may not be P^p^ty for aaiA
delivered at the precise moment fixed in the bond, if it atthe niace ap-
be delivered in full time to be exposed to sale, and may TOid^L'eaUafiS^
be sold with equal advantage to the creditor, the ends of cmfoMnd tS'
justice are attained, and the substantial objects of the not deiiTered at
law and the bond complied with: Sadler vs Glover, 5 ment appointed
a»»o. 651. uV^XSl

But if, as in this case, the surety has made an honest ^i^®^*^^*?i^
and faithful effort to deliver the property at the precise ▼ftotage to the
time fixed in the bond, and would have done so but for should be regard-
an unforseen casualty by which he was delayed in reach- jJcef * ^°^^^'
ing the point an hour or so after the time: but after he ,. . .u

J.J .11 1 . , , It IS the province

did arrive the slave was taken mto the custody of the of the chancel-
Sheriff and ultimately sold, and the proceeds applied to- ff^tlcdSSaB'
Vol. II. 67

460

BEN. MONROE'S REPORTS.

FftT'lEXOB'f.
V9

penalties and
forfeitures, when
the surety in a
delWery bond
was pieyented by-
accident from
the delivery of
the property at
thehour appoint-
ed for its deliv-
ery, and ibe
Sheriffthen made
another levy of
the same execu-
tion, took a new
delivery bond
under which the
property was de-
livered and sold
in satisfaction of
the execution;
the Chancellor
relieved the BurC'
ty against the
forfeiture of the
first ' delivery
bond.

waids the payment of the .executions; the Chancellor,
whose province and peculiar jurisdiction it has ever been
to relieve against accidents, penalties, and forfeitures,
ought and will interpose and afford relief. Nor do we
deem the principal in the bond a necessary party; the
security may be released without releasing the principal;
he is still liable for the residue of the amount due upon
the executions either upon the original judgmenls or
upon the bond; and a mode is pointed out, in the case of
Hagan vs Tobin, 5 Dana, 269, by which the plaintiff
in the executions may proceed. And if the principal
was a necessary party, it was a rigid practice to dismiss
the bill merely because process had not been served on
him without first making a rule on the complainants to
show cause why it had not been served, and giving rea-
sonable day for the service.

It is the opinion of this Court that the decree of the
Circuit Court be reversed and cause remanded that a d^
cree may be rendered, perpetually enjoining the dfendant
from proceeding further on his executions against the
complainant below.

Mc Clung (f- Taylor toT plaintiff; J, TWmJZe for de-
fendants.

t/HANOERT.

Case 141.

Jhuis 2,
The case atated.

Fry's Ex'ors. vs Throckmorton.

Error to the Louisville Chancery Court.
Warranty, Failure of consideration,

Chibp Jdsticb Robertson delivered the Opinion of Uie Conrt

Thomas W. Fry sold to Aris Throckmorton thirteen
young slaves of three different families, but connected
generally by different degrees of consanguinity. About
two years after the sale and delivery, one of those slaves,
a young man named Jordan, died of tubercular con-
sumption.

A physician living in the Gait House, where Jordon
and most of the other slaves were kept after Throckmor-
ton's purchase of them, was of the opinion that shortly
after they were delivered he "recognized the existence of

SPRING TERM 1842. 451

amstUuiiondl scrofula in many of them/* and also, that Fey'i Ex'owl
"Jordan, two years before his death, presented symptoms TmiocKMOMoir.
of scrofulous taint.*'

Several other persons who had known the slaves inti-
mately from their birth, were of the opinion that all of
them had always been remarkably sound and healthy, and
testified that their parents and grand parents, paternal
and maternal, had been apparently sound, and lived,
most of them, to extreme old age.

Jordan was estimated in the sale at SIOOO, and on a
bill filed for that purpose against Fry's non-resident rep-
resentatives, the Chancellor decreed a perpetual injunc-
tion against a judgment for $1000 which they had ob-
tained against Throckmorton for a balance of the consid-
eration remaining unpaid.

The foundation of the bill and of the decree was the
alledged unsoundness of Jordan when sold and deliver-
ed, and warranted to be sound.

In revising the decree the vague and indeterminate
character of the testimony of the resident physician, be-
fore alluded to, the insidious nature of scrofula, and the
diversity of professional opinion respecting its origin and
progress, present difficulties which, if not insuperable,
are at least vexatious.

But our matured judgment upon all the facts as exhib-
ited in the record is, that they are insufficient to author-
ize the judicial deduction that Jordan was not, in the
legal sense of the warranty, "sound** when sold and de-
livered by Fry to Throckmorton,

If, as physicians testified, scrofula be generally heredi-
tary, still, as also testified, the hereditary taint may^tiever,
in the course of a long life, be developed in the form of
fata;l or injurious disease. Such a constitutional taint
may only be a predisposition to scrofula in some of its
various forms and locations of actual and developed dis-
ease. A scrofulous dyathesis, undeveloped in the form
of insipient and progressive disease, is not scrofula it-
self.

Mere organic or constitutional predisposition to a par- a mere oigaaie
ticular malady is not unsoundness either in the popular, JJ^JSjjSHio^^
scientific or legal sense; if it were, there would peihaps • parucular dis-

4&2 BEN. MONROE'S REPORTS.

rarn fiz'oKs. ^ but few, if any, upon earth who are sound. There
TteoGKMOBTOK. IS, lu vcry many* probably most persons, a peculiar ten-
ease is not un- deucy to, Or susceptibility of disease of some kind or
soiindnMs ei^er ^^j g^^ ^j^jg j^^j^ predisposition, undeveloped into

Bcicntific or le- actual disease by some exciting cause or by its ownnato-

ral operation, cannot be considered unsoundness.

Our difficulty in this case arises from the uncertain im-
port of the expressed opinion of the only person wh6 tes-
tified as to the condition of Jordan shortly after the tixDe
of the contract. .

Did he mean by ''constitutional taint" any thing more
than predisposition, or did he mean lurking scrofaia in
an incipient form of actual disease? He did not att^apt
to describe one single symptom — why did he not?

But whatever he did mean in that portion of the tes-
timony, he meant of course, in that other portion of it
in which he deposed that he "recognized the existence
of constitutional scrofula in many of" the slaves. All
this is very vague and unsatisfactory. But it seems that
"many" of the slaves were apparently in /onfen's con-
dition. Have they also died — or are they or any of them
now unsound or apparently so? The record presents no
satifactory answer to these important questions.

If none of the other slaves are now afflicted witfascrot
ula» as a developed disease, is it not probable that, as
they and Jordan were considered by the testifying phy-
sician as exhibiting the same symptoms of scrc^ulons
taint, his scrofulous affection of the lungs was snperre-
nient, and was excited or produced by some accidental
and extraneous cause? And may it not be probable that
the appearance of all, as interpreted by the doctor, re-
sulted from an essential change in their habits, occupa-
tions and mode of living, after they were translated from
an airy country residence to a large hotel in a crowded
city?

Whatever may be said or thought by medical men as
to the hereditary character of scrofula, there can be no
doubt either that scrofula may originate from accidental
causes and become fatal without trans ofiission, or that an
hereditary taint may never assume the form of disease*

SPRING TERM 1842. 453

And even the professional testimony in this case proves

this if it proves any thing. GATBaAwpwiri.

But the facts proved by the witnesses of the executors, ^^^^ ^^
considered in connection with those to which the attend- soundness, and
ing physician testified, authorize the deduction that the ^PP^'isted,^ and
scrofulous taint of which he spoke, was not scrofula in found ^msuffi-
the form of incipient or developed disease — and that unsoundnesa.
Jordan himself was not unsound at the date of the wa^
ranly, but died more than two years afterwards, of a dis-
ease originating after the sale from local or other causes,
which either produced tubercular consumption or excited
into that fatal form of scrofula a latent predisposition
which itself was not unsoundness, and never would have
thus terminated without the operation of those or simi-
lar fortuitous circumstances.

We feel constrained to the conclusion that the evi-
dence, taken altogether and properly considered, is insuf-
ficient to prove with judicial certainty that Jordan was
unsound when Fry sold him to Throckmorton. And
we are, therefore, of the opinion that the complainant
has not, as he ought to have done, shown satisfactorily
that he is entitled to the relief sought by his bill and de-
creed to him by the Chancellor.

The Chancellor's decree is therefore reversed, and the
canse remanded with instructions to dismiss the bill.

PiriU and OwsUy (^ Ooadloe for plaintiff; Duncan
for defendants.

Shaefer vs Gates and Wife. Writ of

At^PEAL FROM THE JeFFERSON ClRCUIT. p ^-'

Writs of right. Judgments. Void and voidable. Lapse

of time. Maxima.

fktin JuBTiCB BoBtBTCON deltYered the Opinion of the C!ourt. June 2.

This is an appeal from a judgment in favor of the de- The case itated.
xnandants. Guerdon Gates and wife, for four-fifths of a
lot in Louisville, rendered on a verdict on the general
mise, in a wrU of right, demanding the entire lot, against
the tenant, Christian Shaefer.

454 BEN. MONROE'S REPORTS.

Shafbr t^q general objections are urged against the judg-

Gatbs A2^o wm. ment. 1st. That there was no actual disseizin, and that

the judgment, in such an action and on such an issue,
could not be rendered for a part of the land involved in
the issue; and, 2nd, That the land viras sold and convey-
ed in the year 1813, under an execution on a judgment
, against Sullivan's heiis, of whom Mrs, Gates was one,
and that the judgment, however erroneous, was not void.
These objections will be considered in their nuuierical
order.
A purchase un- 1- There was proof of actual seizin by the female de-
der a void judg- mandant and her co-heirs, antecedently to the entry of

meat confers no .

rightof entry, & the purchaser under the judgment against them. That
such^purchasels seizin was Certainly sufficient for maintaining this action;
■e^in*°^ * ^^' and we are authorized to presume an actual disseizin, if

the judgmeni against Sullivan's heirs was void; for with-
out a valid judgment, the sale and conveyance passed no
title, and, of course, the entry by the purchaser on the
actual possession of the heirs was tortious and should
be deemed an actual and illegal disseizin.

Demandant in a "^^^ ^^® statutory law of this Stale having abolished
writ of right mav the Unreasonable common law rule that, unless a plaintiff
extent as he may prove title to as much as sued for, he shall recover noth-
UbI liss* ^an ing— a demandant in a writ of right, as well as a plaintiff
manda^"^ ^®" in any other foim of action, may recover Jess in extent or

interest than his writ demands or the mise embraces:
Green vs Liter, (8 Cranch, 229.)

2. William Sullivan, the ancestor of Mrs. Gales, died
intestate in the year 1804, the legal owner of the lot now
in contest, and having five children, all infants, and of
whom she was the youngest. In February, 1813, Gabrid
/. Johnson brought an action against the decedent's ad-
ministrator and infant heirs, all of whom were then non-
residents, except one who had intermarried with Janus
W. Denny, and resided in Louisville. On the lOlh of
February, 1813, the writ was issued against the adminis-
trator, Denny and wife, and the four other infant heirs.
and was returned executed on all except the said four
infants. On the day after the issuing of the writ, an
order was made nominating Denny guardian ad liiem, i(>
defend for those four non-resident infants. And the recoid

SPRING TERM 1842. 455

shows that, on the 6th of May, 1813, "the defendants Shabfer
not appearing," a judgment by default was rendered Gateo akd wifr.
against the administiator and all the heirs of W. Sulli-
van. The appellant holds all the title acquired by the
purchaser of the lot under an execution on that judgment,
and in virtue of which the lot was sold by the sheriff.

All the co-heirs of Mrs, Gales having died childless
and intestate, their titles all passed to her by survivor-
ship.

Upon these facts it is evident that, if the judgment
against four of the heirs of Sullivan should be deemed
merely erroneous, the demandant was not entitled to the
recovery now sought to be reversed, but that, if that judg-
ment should be adjudged i?(??(i as to these four infant heirs,
upon whom there was no service of process, the judg-
ment, as rendered in this case, for four fifths of the lot,
was right and should be affirmed.

In a legal or available sense, no person is a party to a ^tMtfa'suU'or
suit without either an appearance or judicial notice of oound by ajadg-
some sort. And there can be no doubt that a judgment without voiuma-
against a person who was never made a party is utterly IJrvice^^oPpro-

YQJ(] cess, or judicial

notice of some

The record of the judgment of 1813, certified to be a sort.
true and perfect transcript, does not show that the four The appointment
infants, for whom a guardian ad litem was nominated, of a guardian a(Z

o J ,u • -J littmio mfants,

were ever served with process; and their non-residence who are never
proves affirmatively, that there had been no service on cess, does ^not
them or any of them. If they could be deemed parties u^^^s^® i^d^espj-'
they must, therefore, have been made so only by the ciaiiy where
nomination of Denny as their guardian ad litem. But does not make
there is not a vistige of proof of his acceptance or even in^ ihe^^cTs^e °by
knowledge of the trust allotted to him. And the record, ^|fo*w h^s^ac^^^^^
moreover, expressly shows that he neither made any de- tance of the ap-
fence nor appeared in the action, either as party or guar- ^°^°
dian. It is true that the official return states that the writ
was served on Denny as a party and also as a guardian
ad litem.

But that return, as to service on him as guardian, is The service of
necessarily false or void: 1st, because the writ was not ?hcrS,'on one aS
against him as guardian ad litem, and he was not even f^^^^f^j^ ^^
nominated guardian until after the writ was issued, and appointment u

456 BEN. MONROE'S REPORTS.

Shaefek does not appear even to have accc^pted or assumed that

Gates AND WIFE, relation; and, 2ndly, because the sheriff, having no ap-

such, is unau. parent authority to serve the writ on Denny as guardian,

Ietu!"u) ihafe^ ^" actual service on him in that character, was void, and

lect extra official the retum thereof, altogether extra-official.

and void, and ^ .„ ^ ^t^ a' a n

furnished noevi- But if that retum could be accredited for any purpose,
pers(m ^that^^he it imports Only that the sheriff, having served the writoa
wM^uardian flki JJeMwy and understanding that he was sued in his own

right, and had ulso been named as the representative of

the non-resident infants, supposed that the actual service

of the writ on him was co-extensive, in effect, with his

two-fold character in the suit. But the writ not being

against Denny as guardian, nor describing him as such,

the service of ii, which was all the sheriff was authorized

to do, was no notice to him that he had been nominated

guardian ad litem to defend for the non-resident in^ts.

The return, therefore, even had it been official and true,

furnishes no proof of any notification to Denny of his

nomination as guardian ae2 litem.

Notice to one of ^^^ ^^^ Denny been notified of his nomination as

his appointment guardian, he was not bound to accept the responsible

ISem)* docs not, trust; and without his acceptance, the non-resident in-

fensl *^'make ^^"^ ^^^^^ »^^ ^^^^ b®®^ parties in any legal or available

those for whom sense. And it is indispensable to the validity of the

he has been ap- u k

pointed, defen- judgment against them, that the record of it should snow
me"nT^ * agiinft ^^at, in som^ legal and effectual mode, they had hM mak

^o'rtto^bfndin: Parties to the action.

fants, must show Tl\e record does not intimate even Denny's acceptance;
parties to Uie ac- and his non-appearance is evidence rather of his non-i^
gaTand SffSftuS ceptance. for had he accepted, it was his duty to appear,
shape. and it was also the duty of the Court, either to compel

The Court should his appearance or substitute! some other person who
i^d^ment wi^st ^^^^^ *^PP®*^ ^^^ represent the infants, either by making
infants, but on a proper defence or by satisfying the Court that he had
Lem, or on be- been vigilant and faithful, and had ascertained that no
^Jdi^n^^^it defence could be usefully made.
t1?iian^effoa^he '^^^^ ^^^^ ^^^^^^ essentially from that of Buskarin
eouid "certain Gotcs and wife, (4 Dana, 439.) In that case, in which
fence to the ae- & judgment had been rendered against the same non-resi*
**•"• dent and infant heirs of WiUiam SuUimn, a gaaidiaa

ad litem was notified of his appointment, accepted, ^

SPRING TERM 1842. 457

peared, and defended the suit. In this case the record Shiefe*
not only does not show that Denny, who was nominated Gatesandwife.
guardian, either accepted or was notified of the nomina- "
tion, but it proves conclusively, for all time, that he
neither made defence nor appeared to the action. Can
such ex parte, surreptitious judgment against non-resi-
dent infants, without any defence or appearance for them,
or even notice to them or any person acting or undertak-
ing to act for them, be deemed valid and binding on them?
Can it be gravely alledged that they were ever made par-
ties to the suit? We think not. This, it seems to us, is
the inevitable deduction from the facts exhibited by the
record. And had the question as to the validity of the
judgment been litigated within a year after it was ^ende^
cd, we cannot doubt that the judicial response must have
been, una voce, that the judgment was void.

Did the lapse of 23 years prior to this suit, infuse vital- Laps© of tim«
ity and vigor into that which was thus bom dead? Has a u^uies'ln'^u^-
judgment, once void, been made valid by time? Justice biVno^such^
and the repose of society have induced the adoption of appear to havo
many legal presumptions; and among these is that which no suggestion of
after a long lapse of time, cures irregularities in judicial by^piw^of^Snw!
proceedings, and assumes that every thing that was done
was *' solemnly and rightly done,'' and that, also, which
even presumes, in soipe rare cases, that an unfound record
once existed. But time can never authorize the presump-
tion that an existing record, apparently complete and per-
fect, is not substantially what it always was, and espe-
cially that any thing which it expresses or imports is falsia.
The legal maxim '*omnia presumuntur rite et solemniter
esse acta donee probitur en contrarium," applies not to
such a case.

To sustain an ancient judgment, time may authorise Time may au-
the presumption of an extraneous fact which the record sumption ^of^aa
does not contradict, and which it was not indispensable "bj^btSe record
to the validity of the judgment that the record should ex- does not show,
hibit. This is as far as either reason or law will presume indispensable to
as to facts not appearing in an existing and apparently -Jd^eniJ^ ^S
unmutilated record of a judgment. And no such pre- 2£*°M*^ridVL ^
sumption can, in our opinion, aid the record in the case
now before us.

Vol. II. 58

468 BEN. MONROE'S REPORTS.

Sbasfbb yfQ cannot presume that Denny, as guardian ad litmt

CUtss AMD WIFE. Of otherwlse, appeared to the action, for the record affirms
This c urt w'u ©^P^^^ssly that he did not appear, and that the judgment
not presume that was by default. Nor, for (he reasons already suggested,
?ftm"ap*peared can we presume that he either ficted as guardian or ac-
Se^T^e^cordshows ^^P^^^ ^he nomination, or even had notice of the fact
the reverse, ex- that he had been nominated; and the sheriff's retum
loid a judgment, itself Strongly corroborates this conclusion, for the fact

that such a return was procured and recorded as evidence
of notice tends strongly, if not conclusively, lo prove
that there was no other notice nor any other evidence of
notice to Denny of his nomination as guardian. But the
record proof that he never appeared is record evidence
also of the resulting fact that he never acted or even as-
sumed to act as representative of the infants in defending
that suit for them or making any preparation for defend-
ing it.

And if, in any such case, an implied acquiesence

could aid the judgment, the continued disability of Mrs.

Gates would be sufficient to repel the force of any such

presumption in this case.

N.^^j ^ It seems to us, therefore, that the only judicial dedac-

▼oid ab initio in tion now must be, as it should have been the day after the

nanconvaiSsSi^ date of the judgment, that the non-resident infants, evea

if the Court had jurisdiction over them, were never , in fact
CT in law, made parties to the suit. The judgment as to
them was^ t-herefore, void. And such a judgment, adjudg-
ed to have been once void on such grounds, cannot even
yet be deemed valid. To such a case, as much as to any
other, should be applied the legal maxim that — that which
was void "ab initio, in tractu temporis, non convalescd"
We are, therefore, of the opinion that the demandants
were entitled to the judgment, as rendered in their favor,
for four-jBfths of the lot; Mrs, Denny's fifth having passed
to the purchaser under the execution, because, as she was
a party, the judgment on which that execution was issu-
ed, was not, as to her, void.

It is, therefore, considered that the judgment for the
demandants be affirmed.

Pirtle and Duncan for appellant; Tkruslon 4mi
Loughborough for appellees.

SPRING TERM 1842. 46t

Thornton vs Johnson. Dbbt.

Appeal from the Marion Circuit. Case 143.

Fraud. Pleading by defendant Rescission,

Canp JusTios Robbktsozt delivered the Opinion of the Court. June 3.

It seems to this Court that the Circuit Judge erred io a plea averring

sustaining a demurrer to the plea, which averred that the g^*^ onVasldT^

note sued on was given in consideration of the sale, by «<* ^Q considera-

the plaintiff to the defendant, of a slave; that the slave purchased by de«

was secretly unsound; that the vendor knew and conceal- t?fff*°ihat^ ^tSJ

ed it at the time of the sale, and that, within reasonable fiaie was secret.

' ' Iv unsound; that

time after the discovery of the fraud, the defendant in the the vendor knew

action offered to rescind the contract. at the time of

Though the mere fraud in the contract might not have J^at in"i*fca»"^

been pleadable in bar of the action for the price of the able time after

^ '^ , . . , , , i. . the discovery of

slave, yet admittmg that, as averred, such fraud was prac- the fraud, the
tised, an offer to rescind the contract, made, as also aver- action offered to
red, in good faith and reasonable time, ipso facto, ope- JJ^ct^^l^J f^Si
rated as a legal rescission. And consequently, if the plea plea, if true,
be true, the facts averred are sufficient to bar this action, legally rescind-
and would have even entitled the defendant to maintain ^
indd>Uaius assumpsit for the price, bad it been paid be-
fore the legal rescission. ^

The judgment by default must, therefore, be reversed,
and the cause remanded with instructions to overrule the
demurrer to the first plea.

Harlan ^ Craddock for appellant.

Commonwealth for, &c. vs Kelly et al. iNDicTimT.

Error to the Estill Cihcuit. q^^ j^^

Sheriff^s bond. Consequential injury. Relator,

Cnsr JuBTiOB Robebtbov delivered the Opinion of the Court. j^„^ ^

Thb single question in this case is, whether the princi-
pal debtors in a replevin bond can, as relators, maintain
an action against a sheriff for a4)reach of his official duty.

The eaie stated.

4M BEN. MONROE'S REPOETS.

*'"'""""**"*■ in falsely returning on a/!. /a. on said bond, a less pay-
V9 ment than had been been made to him by one of the re-

" lators, in consequence of which another execution had

been issued for more than remained actually due, and the
same relator was compelled, unjustly, to pay again what
had been previously paid by him ]to the sheriflf.

The Circuit Judge, being of the opinion that the action
could be maintained only on the relation either of the
person who had made the double payment, or of all the
obligors on the bond, sureties as well as principals* there-
fore, sustained a demurrer to the declaration.

Our statute authorises the party "injured*' in such a
case, to sue on the sberifif's bond in the name of the
Commonwealth. And there can be no doubt that, in
judgment of law, all the obligors in the replevin bond
were, in the first instance, injured by the false return on
the execution thereon ; because that leturn equally con-
cluded all and subjected them, jointly, to the annoyance
and coercion of another execution for what had been al-
ready paid.

But in an action for the false return, before any special
damage bad resulted from it, perhaps nominal damages
only might have been recovered.
Two principals "^^^ ^®^® ^* admitted that the technical cause of joint
^ A '^^^S"* action by all the defendants in the execution was not
a payment to the merged in the right to sue for the special damage subse-
ecuSon*Swoni quently accruing, still the sureties sustained no part of
SepfopMMc^dU* ^^^^ special damage, and, therefore, could neither release
a second execu- nor recover it or any portion of it. But for the new and
credit and pay- distinct injury resulting to the party who was compelled
toe'" *coer2Sd ^^ P^Y ^^^^^> *^^ P^^ty being, as to that matter, the party
^dWid^S su'Sh "i"J'^'"®^'""^Jgli^ sue on the sheriff's bond, and ought
individual', scpa- not to unite the sureties, because, as they were not liable
of action^orfhe f^r contribution, the excessive payment was, in no sense

!u^"Ss'^f^^ nor fo^ any purpose, theirs or for their use.

^eriff on his And we are of the opinion that a separate action may

be maintained for the special injury, by the party injured.
A suit for the special damage, as this seems to be,

should be brought on the relation of the person or persons

upon whom that damage fell. None of it fell on the

sureties.

SPRING TERM 1842.

46t

As between the two principals, the false return was not
conclusive ; and as the cumulative payment does not ap-
pear to have resulted from any act or omission of the
principal who paid nothing, he could not be compelled to
contribute to the principal who paid all, any portion of the
superfluous payment. His liability to contribution would
be limited to one half the joint debt which was due and
properly collectable. He could not be required to con-
tribute to a double payment which his co-principal made
erroneously and might have avoided making.

The principal who paid nothing does not appear, there-
fore, to have been, in any way or to any extent, damnified
by the exaction of more than was justly collectable; and
not having been injured by that exaction, he should not be
joined as relator in an action for the special damage re-
sulting exclusively to another.

Wherefore, it seems to this Court that there was no
error in sustaining the demurrer to the declaration; and
the judgment of the Circuit Court is, consequently, af-
firmed.

Owsley 4r GooHoe for plaintiff; Turner for defendants.

Pattik. 0t aL

Hall, Pattib
et aL

Pattie et al. vs Hall, Pattie et al.

Appeal from the Franklin Circuit.
Devises, Descents. Wills.

JuDGB EwiNO delivered the Opinion of the Court.

The only question submitted to the Court for their de-
cision is, whether Wm. Hall is entitled, as the survivor
of his wife, to any interest in the estate of John Pattie,
deceased.

John Pattie executed an awkwardly drawn instrument,
which was recorded and has been acted upon as his last
will and testament, which, after making a provision for
equalizing those of his children who had not been ad-
vanced, with those that had, the following clause is in-
troduced: "So that if there is any thing to divide after
my death and that of my wife, Lucy's death, that they
may all share equally in the residue, if any."

Chancery.
Case 145.

June 3«
The case stated.

462 BEN. MONROE'S REPORTS.

Ptmtetai. Wm. Hall had intermarried with Polly Pattie, one of

Hall, Paww the daughters of John Pattie, the decedent, who sorvived
^ °^' her father, but died before her mother. Lacy Pattie. She
had by Hall three children, two of whom died in infan-
cy, the third attained twenty-one years of age, married
Blakemore and died without issue, before the death of
her grand-mother, Lucy Pattie, but after the death of her
mother, the wife of Hall; her husband, Blakemore,
surviving her. The children of John Pattie having been
all equalized, and Lucy Pattie having died, is Hall eati-
tled to his wife's share in the residuum of personalty,
slaves and land that remained after the death of Lucj
Pattie? We are clear that he is.

The residuum devised is a vested remainder in each
of the children of John Pattie, that were in being at hii
death; and Mrs. Hall's remainder in the land descended
from her to her daughter, Mrs. Blakemore, and from her
to her father, Mr. Hall, by the general law of descents,
unless the descent was obstructed and prevented from
passing to her father, by the exception contained in the
fourth section of the statute of 1790, (1 &at. Laws,
562.) The exception contained in this section only ob-
structs the descent to the father in cases where the child,
deriving the estate from the mother, dies in infancy with-
out issue. And as Mrs. Blakemore arrived at the age of
twenty-one before her death, the exception does not apply:
Duncan vs Lafferty's adrninistralor, (6 /. J. Marsh, 47.)
A remainder in -^^ ^^^ remainder in the personal estate and slaves
slaves and per- vested in Mrs. Hall, during coverture, it became abeo-

sonal estate vest- . , , , r i t i i • t ■ i

ing in the wife lutely the property of. the husband, and the particular
vesKVoffl? estate of Mrs. Pattie did not affect his right: Banks' air
in the husband, fninislrator vs Marksberry, (SLitt, 276.)
* * 4'^ «f ♦^^ It is true that the intention of the testator should be the

Intention of tes- ...

tatoT eoTeming govommgrulem the construction of wills, and should be
construction of carried out, and the estate vested in those in whom be
proiiiions* cSit intended it to vest, so far as that intention has been ci-
not be transcend- pressed, orcan, by fair interpretation, be implied. Bat

ed to impose re- ^ .,,, ,., . \.. ...

Btrictions not in WO Cannot look beyond the provisons of the will, or iffi-
^onoPthetestal pose limitations and restrictions on the future coarse of
^'* descents, not contemplated or provided for by the testa-

SPRING TERM 1842. 463

tor, bul must leave the estate afterwards to descend aod Bmwh» & Ca-

VIIiS

pass as the law directs. ««

The decree of the Circuit Court is affirmed with costs. saERifr. ,
Hwitt for appellants; Morchead (f^ Reed for appellees.

Blevins & Cavins vs Sympson, Deputy Motioit.

Sheriff.

Error to the Grkew Circuit. Case 146.

Equity and equitable jurisdktion. Practice in Chancery,

JuDes EwiNO delivered the Opinion of the Court. June 3.

The plainlijBfs in error, on bill filed, sued out a subpcB- xh« case stated,
na, with injunction issued by order of the Chancellor
enjoining and restraining the Sheriflf of Green county
iind his deputy, Samuel Sympson, "from delivering pos-
session of certain slaves to McCall and Craddock, or
any one until the further order of the Court," which he
had taken from the complainants and then held in his
posisession, by virtue of a writ of replevin sued out
against them by McCall and Craddock. And at a subse-
<iuent term, and after their bill had been dismissed by
consent, on the motion of Sympson, the deputy Sheriff,
an inquiry was awarded and a jury summoned to inquire
whether he was entitled to any thing, and if any thing,
how much, for keeping, clothing, and furnishing medical
attendance to said slaves while in his custody. The
plaintiffs in error appeared in Court and joined issue
with the deputy, and made defence on the inquiry; and
the jury having found for Sympson $260, the plaintiffs
were ordered by the Chancellor to pay the samp to him«
«Qd they now ask a reversal of this order.

We think the Chancellor had full power, with or with- The caiaiMsenor
t)at the intervention of a jury, to make the order. By either*' wSr";
his command, at the instance of the plaintiffs, an oflBcer ^'^^^*^ **»« _"»•

. *^ tervention of a

of the law had, m effect, been required to keep the jury, to award
slaves in his custody safely until the further order of the necMsary^ and
Court. He had done so, and been prevented from deliv. Fn'SS^T'edT^SS
ering them to the plaintiffs in replevin, and thereby dis- ■**? keeping and

« , * * ' maintenance of

cbaxgmg himself from further risk or responsibility. By property takes

464 BEN. MONROE'S REPORTS.

Blevins ft Ci- the order he was subjected not only to the hazaid of

ts keeping them safely, but also to the cost of providing

^"sHEHip. ^' meat, drink, clothing, and medical attendance for them,

into the custody ^^^^l that in consequence of the command of the Chan-

of the law by his ^^\\q^ q^ ^ho application of the plaintiffs. The officer

order; and where * * *^

the proceedmga has a right to be compensated for this risk and these nfr

^reement*,^ the cessary charges, and the Chancellor, as an incident to hu

whosi*^r*s^ce jurisdiction over the subject, has the power to institute

the pioceediug ^hc inquiry, and order the compensation to be made.

was hod, IS re- ^ j ' *

sponsible for the As the bill had been dismissed at a former term, and

expenses. ^^ parties out of Court, it would have been more for-

Where ^he suit mal to have brought them before the Court by rule to

fore such order show cause. But as they appeared, joined issue, and

ino3t*reguiar to made defence to the inquiry, without application for a

?I2M®fii !l '«1® continuance or objection to the trial at the time it was

upon the respon- J

sibieparty; but if had, there is no ground for the reversal of the order for
issuef'and make this informality. ^ And though the Chancellor had the
any'^'piTilftSTn right, and it would probably have been more appropriate
for continuance, for him to have heard the proof and fixed the amount of

and a jury pass ^ r \.* t, V.

on the amount compensation himself, it was competent for Dim to suo-
cures^the^negu- niit the inquiry to a jury as the means of enlightening
lanty. j^jg conscience as to the amount that should be allowed.

As the evidence is not spread on the record, nor any ex-
ceptions taken, nor motion for a new trial made, we can-
not say that the amount allowed was unreasonable.
Where an adm'r. Nor is the objection tenable that the order was made
files a bill en- on the plaintiffs to pay absolutely, and not out of the

joming the cus- * *• ' ^ t* ii /I

tody of personal assets in their hands. Though they filed the bill as an-

8i7pr?pertydld ministrators of oneSkeggs, the difficulties grew out of

Sd? ^nteSfatl° *^®^^ ^^^ individual transaction after they were appoint-

yetif the neces- ed administrators, and upon their individual motion,

ceeding proceed and upon the execution of their individual bond the re-

JaS^JU'^^^^^ straining order was issued, and the officer has a right to

i^0Mfb"k for the ^^^^ ^^ ^^^^"^ ^^^ ^'^ Compensation,

expenses inci- It is, therefore, the opinion of this Court that the order

of the Chancellor be affirmed with costs, &c.
Harlan and Willis for plaintiffs; Monroe for defendant

SPRING TERM 1842. 465"

Ewing & Conner vs Gist. Case.

Appeal from the Montgomery Circuit. Case 147.

Guardian. Damages. Averment. Contract.

JuDOB Marshall delivered the Opinion of the Court. April 23.

The plaintiff having hired the slave, Albert, to the de- a guArdJan, hir-
fendants, as guardian of the owner, had a right in that hlfward'hMiS
character to recover not only the hire but damages for ^^^^^^i ^j^]^
not returning the slave, the obligation to return the slave hife, but for
at the expiration of the peiiod of hire was implied by fanuwT to return
law from the contract of hiring, though not expressed ^ "^f^** .
in words, either in the verbal agreement of 1840 or the der an implied
written»note for the hire of the previous year, which was turaa^siavo* Mr-
referred to in the verbal agreement merely as fixing the ^
character of the note which was to be given for secaring
the hire for the year 1840.

There is no difference in the mode of averring an im- There is no dif-
plied and an express promise, and there was no variance avSmen/'on an
from the declaration by reason of the failure to prove an pj^'d 'Lomise^
express undertaking to return the slave. Nor was the no' is, the day
day of making the contract material, but only the time tract of^hiri^
when the period of the hiring was to expire, which is al- JTthe^uncnder
ledged differently in different counts. It terminated ac- **•
cording to the proof on the 31st day of December, at far-
thest, and might perhaps be regarded as terminating on
the 25th of that month. Each of these days is laid in
different counts, and the jury have found that the period
of hire terminated before the commencement of the suit,
which was on the 1st day of January, 1841.

We think there was technical error in permitting the
plaintiff to read the note of the previous year to show
that the defendants were then partners, without proving
the execution of the note; but as the same fact was am-
ply proved by the judgment which was certainly admis-
sible, and also by other evidence introduced by the de-
fendants themselves, this error is no ground for reversal.

Wherefore, as the verdict was authorized by the evi-
dence, and the ^plaintiff's right of recovery was placed
Vol. II. 59

466 BEN. MONROE'S REPORTS.

EwiNe & Cor- by the Court on grounds sufficiently favorable to the de-

fs fendants, the judgment is affirmed.

Gist. "' ^

Petition for a Re-hearing,

May 3. By H. Daniel.

The appellants, Ewing and Conner, respectfully peti-
tion this honorable Court for a reconsideration of their
opinion affirming the judgment of the Court below.

It seems, from the opinion, that the Court did not take
into consideration the point presented by the bill of ex-
ceptions, that the appellee, Mrs. Gist, as guardian could
not in her name, recover the value of the slave, Albert,
as she has done in this case. The bill of exceptions
does not present the point as clear as it ought to have
done, yet on examination it is manifest that the Court
below did decide, that she, as guardian, could recover the
value of the slave, Albert; and it is equally clear that the
opinion of the Court was excepted to by the appellants.
The Court will see the hire of the slave was SllO; the
jury found a verdict for the sum of S360, to-wit: $110
for the hire, and $250 the value of the boy; this was
considered a high price for the slave, as his color
could not be distinguished from a white man, he had it
in his power at any time he pleased to make his escape
from his owner — this is in proof. The $250 could not
be found by the jury for a failure to return the slave, Al-
bert, as the only damages proved was the loss of five
day's hire. He was to have been returned on the 25th
of December, 1840, and suit was brought on the 1st of
January, 1841. But to put this matter beyond doubt, see
the instruction 2nd, page 28, given for the plaintiff in the
Court below as to diligence, &c.

The instructions asked by the defendants were, if the
hiring took place as proved by Mr. Powell, then the jury
must find for the defendant both as to the hire and vdu
of the slave. These instructions were moved separately;
that is, first, they could not in that state of case find the
hire, and if they could find the hire they could not/n^
the value. Both of these instructions were overruled by

SPRING TERM 1842. 467

N£R
V8

Gist.

the Court, and exception taken to the opinion of the Ewino & Con-
Court: (see Record, p. 29-30.) r«

The bill of exception uses this language: '*to the giv- ^
ing of which instrtfction the defendant excepts to the
opinion of the Court as to the instruction given for the
plaintiff, ^and also the defendants then and now excepts
to the opinion of the Court overruling the instructions
moved for by the defendants as aforesaid:*' (see Re-
cord, p. 31.)

It is believed that Mrs. Gist, as guardian, cannot main-
tain an action in her name to recover the value of the
slave, Albert. If the defendants have to pay the value
of the slave, they'ought to be entitled to the slave, which
they would not be in this action.

The Court is respectfully asked to grant a rehearing.

Response,

By Judge Marshall. June 4.

The recovery of daniages in an action of assumpsit .j^^ recoTcry of
for failing to deliver, according to contract, a slave re- damages for the
ceived by the defendant from the plaintiff on hire, would a slave hired,
not, as matter of law, transfer the ownership of the slave ter^ of la" Test
from the plaintiff to the defendant, supposing the former ^^^^^^^^ ^^ Jj^
to have been the owner when the action is brought, and fendant.
the plaintiff, notwithstanding such recovery, would still
be entitled to re-take the slave, taking on liimself all the
expense and trouble of so doing, and running the risk of
ultimate failure.

The contract of hire having been made in this case
with the guardian of the owner, and the promise to re-
turn the slave being also to the guardian, she was prop*
erly the plaintiff in the action, and was entitled to recov-
er not only the hire but also damages for the failure to
return the slave, because, 1st, the contract was made with
her, and 2d, she is responsible over to her ward for due
care in the management of the slave, and for due dili-
gence in the recovery of him. And as the owner would
be entitled to recover damages commensurate with the
reasonable cost and trouble of attempted recaption,

468 BEN. MONROE'S REPORTS.

EwiHG & Cow- taking also into the estimate the probability of success
V8 or failure, which damages would be his only eompensa-

— tion for the expense and trouble of the attempt at recap- '

tion, should it be successful, and also for the total loss of

the slave, should one be incurred with or without such

attempt. So the guardian, in the present case, has a right

to recover the same damages for the benefit of the owner,

and to meet the liability thrown upon her by the failure

of the defendants.

The juiy, iaaa- The jury have found that by the negligence of the de-

SM*a**faiiure to fendants while they (or one of them) had the slave on

hired" are"^au- ^^^^» ^® ^^® permitted to go off and make his escape;

ihorixed to «a- and from the evidence it is probable that he has cone to

•ess damages to , ,

an amount equal Ohio or Canada, and that any attempt to retake him, if
Se * probable ^^0^ utterly hopeless, must be attended with great expense
Bw iLcMcStto's ^^ trouble. As it is not absolutely impossible that he
Tecaption. may Still be recovered, the jury might not be authorized

to find that the plaintiff had sustained damages to the
full amount of his value. And although beiween $240
and $250 of the damages found by the jury, must be ap-
plied to the breach alledged, of the defendants having
failed to return the slave, there is nothing in the record
to show either that the jury found that sum as being his
exact value, or that it was in fact his exact value. No
witness estimates his value in money; several say that
owing to his being almost white, and to tHe consequent
facilities of escape, they did not consider him to be worth
more than half as much as other slaves of the ordinary
color and capacities. But the defendants had hired him
for several years at $110 a year,. and it cannot be assum-
ed on this evidence that he was only worth in full prop-
erty $250. The Court gave no instruction or intima-
tion to the jury, so far as appears from this record, to
the effect that the value of the slave was the criterion of
damages for the failure to returm him, and the damages
found do not appear to be excessive.
Wherefore, the petition is overruled.
Daniel ^ PtUrs for appellants; Hanson and Apperson
for appellee.

SPRING TERM 1842. 469

Fenwick's Administrator vs Macey. Detinue.

Error to the Franklin Circuit. Case 148.

Lis pendens. Mortgagor and mortgagee. Privity,

Chxbf Justice Bobebtson delivered the Opinion of the Court ^^^ 28 1841.

On the 4th of March, 1839, John A, Holton, as ad-
ministrator of William Fenwick, deceased, brought an
action of detinue against Leander W, Macey, for several
slaves purchased and held for more than five years by
Macey ^ under a decree for foreclosure and sale, which
had been obtained by the Bank of Kentucky against
Alexander Macey, in the year 1830, on a bill filed by the
Bank against the said Alexander, as mortgagor of the
said slaves, by a deed alledged to have been executed in
February, 1822.

The administrator relied on the record of a suit in The ground as-
chancery instituted by his intestate in /wne, 1822, against covwy.^°'* '^
the said Alexander Macey, for redeeming the said slaves
and others, upon an allegation that the said intestate had^
in the year 1807, mortgaged them to the said Alexander;
and in which suit — neither the Bank of Kentucky nor the
said Leander W, Macey being.a party — this Court, at its
spring term, 1833, established the right to redeem, as
claimed in the bill, and the Circuit Court, in the year
1835, rendered a final decree for unconditional restitution
of the slaves by Macey' s executors to Fenwick's admin-
istrator.

The parties submitted the case to the Circuit Judge, to
be decided without a jury, and agreed that he might con-
sider as evidence before him, so much only of the record
of the suit by the Bank against A. Macey, dec'd. and of
the record in the suit by W, Fehwick, dec'd. against the
same, as would have been legally admissible though spe-
cially objected to as competent.

A judgment having been rendered in bar of the action, The question
we shall consider only one question in revising it, and Jlsfom * ^°' ^^'
that is, whether upon the legal evidence submitted to
the Judge below, he ought to have considered L. W.

470 BEN. MONROE'S REPORTS.

Fen^ck'sad'h. Macey as a pendente lite purchaser, and, therefore, con-
Macey. eluded by the decree in the case of "Fenwick vs Macey,''
'~~~ for, unless he should be deemed to have been such a pur.
chaser, his possession was, in law, as well as in fact, ad-
verse to Fenwick's title for more than five years preceeding
the commencement of this action, and he is thereby pro-
tected, even though his derivative title, as acquired
through the Bank of Kentucky, might be superior to that
of Fenwick as original mortgagor.
Th char Having acquired the title of the Bank, L\ W, Macey
under a decree may not be affected by the decree against A, Macty,
mortgagel^occu^ dec*d. Otherwise than the Bank itself was affected by it,
ofThe^moVt^agee ^^^ ^^' ^^ mortgagor, ante litem, the Bank had a right to
andacqiiiies his geU the slaves notwithstanding the subsequent lis pendens

tii\6, and is not , „ ii. i ,i i

affected by the and unaffected by it, surely any stranger had an equal
suruo"whic°hthS fight to buy and hold all the title thus sold as effectually
2*°lT^^^ ^® "°^ as he might have done had the sale been prior to the com-
mencement of the suit of W. Fenwick vs A. Macey.
And if, as alledged, the Bank held a forfeited unsatis^d
mortgage, executed in good faith, antecedently to the
pendency of that suit, it was not, in any available sense,
a purchaser pendente lite, and had a right to enforce its
mortgage and pass its legal title unaffected by the lis
pendens, succeeding the date of its mortgage.
The doctrine of The doctrine that any stranger who, during the penden-
'iie?*ito*"araes ^^ ^'* ^ ^"^' ^^"^ property, acquires a claim to that proper-
only, and those ty or any portion of it, from the unsuccessful party to the
through them af- suit, shall be Concluded by the judgment or decree ren-
Aj'w!"^ '^ ^*"' d^^^d therein, against that party, is founded on policy or
' rather necessity, otherwise litigation might be intermina-

ble and unavailing. The principle of the doctrine is well
defined and cannot be expanded so as to embrace a stran-
ger whose right existed when no suit was pending. A
suit for property concludes only the parties thereto, and
all persons deriving title from the unsuccessful party du-
ring a diligent prosecution of the suit. And a person,
who is neither a party nor privy, and who, as between
himself and the party in possession of the subject of
litigation, has the right of property and possession neither
derived from either of the parties nor acquired since the
lis pendens between them, may certainly take the posses-

SPRING TERM 1842. 471

sion, during the pendency of the suit, without subjecting Fenwick's ad'r.
himself to any of the consequences of a purchase or in- Magey.
trusion pendente lite. The principle of the anomalous
doctrine of Us pendens, is totally and obviously inappli-
cable to such a case, and has never, so far as we know,
been misapplied to such an one by any Court of Justice
in the world. And this much had been virtually decided
by this Court in the case between the present parties, re-
ported in 9 Dana, 193.

But the facts in that case were hypothetical, and have
not, in our opinion, been suflTiciently established in this
case.

The record of the case of the Bank vs Maceij was not '^P recoxd. of a

. ,, I ' . . suit and any fact

legal evidence against rcmciclis administrator, of the appearing there-
title of the Bank. No other evidence of that title was dence °°against
offered in the Court below. There was then, accoiding ^herero- ^"'^
to the ao^reed case, no legal proof of even the date of the Kor is a copy

,> • ? 1 T* I I n ^^^^ *" official

alledged mortgage to the Bank; because a copy of a copy copy competent
was not admissible, and the record exhibited only a copy, ®^^ ^^^^'
cirtified by the Circuit Court clerk, of another copy
which had been certified by the clerk of the County Court.
This cannot, in any allowable or consistent view of it,
be better or more credible than a copy taken a,nd certified
by the recording clerk, from another copy which he had
taken from the original in his office. The law does not
go one step further than a copy from the original; be-
cause, going beyond that limit, would increase the chan-
ces of error to an extent deemed unnecessary and peri-
lous.

As, therefore, it does not judicially appear in this case,
that the Bank was a purchaser, nor that its title accrued
before the institution of Fenwick's suit against Macey, the
defendant in error has failed to show that he should not
be treated as a purchaser, pendente lite, as he certainly
must be if the Bank itself was such a purchaser. For if
the Bank obtained its mortgage from A. Macey, the un-
successful party, since the commencement of Fenwick's
suit against said Macey, the derivative purchaser can be
in no other or better condition than the Bank itself would
have been in had it made no sale.

472 ^ BEN. MONROE'S REPORTS.

Fbkwick's ad's. Claiming, therefore, as a purchaser under a mortgage
Macet. to the Bank, and having made the purchase whilst the
suit of Fenwick vs A, Macey was pending, the defendant
in error must, prima facie, be deemed a purchaser pen-
dente lite, subject to the decree rendered in Fenwick's
favor, unless he had shown that the Bank had a title ac-
quired before the commencement of that suit.

It seems to this Court, therefore, that the judgment of
the Circuit Court is erroneous. But as the agreement to
dispense with a jury implied, from the terms and manner
of it, that the parties intended to stand, as to their uhe.
rior rights, in all respects as thej' would have stood had
there been a jury and verdict, and as the Circuit Judge
erred in admitting incompetent evidence, we shall lemand
the case for a new trial, unaffected by that agreement
which should now be deemed functus officio.

Judgment reversed and cause remanded for a re-trial.

Owsley and S, Todd for plaintiff; Criilenden and More-
head ^ Reed for defendant.

Petition for a Re-hejiring,

By Samuel Todd.

When I see the innocent punished without faolt; when
I see the guilty and fraudulent intruder rewarded and
secured in his rapacity, I cannot but ask whether it is to
be attributed to the party, the law, or the Court No
one who is acquainted with the history and facts of this
cause, can hear them stated without having their moral
sense of justice shocked — the mournful tale is told in
1st Dana, 277, how the father of these plaintiffs was
completely used up, his whole substance and labor torn
from him by a ferocious usurer, and when redemption
was decreed, this Court truly said it would only afford "to
Fenwick some retribution, though late and incomplete,
for the dedication of his estate, his . service for roanf
years." Yes, his whole estate, his whole life, for he died
only three weeks after that opinion. Yes, notwithstand-
ing the redemption is decreed to Fenwick, his right ad-
judged in that case, to be full and complete, five years

SPRING TERM 1842. 473

before this mortgage to the Bank, yet the deadly feud is Fenwick's ad'r.
descended to the son, who steps forward, clothed with Macey.
fraud and intrusion, snatches away the slaves, takes them ~
out of the possession of the defendants whilst the suit is
in persevering and vigorous prosecution, purchases the
equity of redemption from the defendants, and now this
Court has declared the law to be, that the anomalous doc-
trine of lis pendens dont apply to such a case. I meet
you on this occasion, with a spirit of fair and impartial
inquiry after truth, both as to the facts and the law, as ap-
plicable to this case, and if you will reciprocate to me
the same laudable pursuit, I believe no difference of
opinion will exist; but I know the diflSculty which ob-
struct such an inquiry, when entrammeled by previous
expressed opinions, how impossible it is to divest our-
selves of the prejudice and influence • of previous opin-
ions, which has been expressed and published to the
world ; this is my danger, and an awful one it is ; but if
you will but give me a fair hearing and free yourselves
from that influence, I believe I can convince you that L,
W. Maccy is a pendente lite purchaser. The opinion now
delivered in this case refers to the opinion reported in
9 Dana, 198, as the basis of the facts and the law, to
govern this; it is, therefore, my design respectfully to
show, that the facts in that case was 'overlooked, and, as
I believe, erroneously stated by the Court, I will heie
quote the objectionable statement, it is on page 199-200, *
and is in these words: '*Nor was L. W. Macey, as pur-
"chaser, concluded by Fenwick's decree, merely on the
"ground that his purchase was made between the institu-
**tion of the suit and the date of the decree, because he
did not derive his title from either of the parties to the
suit,** Now I ask, with all candor and sincerity,
whether L. W. Macey did not derive the title to the equi-
ty of redemption from the defendants, Morris, Dudley and
Noel, the executors and trustees of Macey? If he did not
purchase it from them, who did he get it from? The Bank
never purchased it; the Bank, when Macey executed the
mortgage; got nothing but a title as mortgagee, the equity
of redemption remained in A. Macey, until his death,

and then, by his will, which vested his whole estate in
Vol. II. 60

474 BEN. MONROE'S REPORTS.

FwnncK'»iD'i. ^is executors, passed to them the equity of redemption,
Maost. and never was passed out of them until that very 21st day
~" of February, 1831, when L. W. Macey became the pur-
chaser from the defendants in that cause. I say then,
without the fear of contradiction, that L. W. Macey did
purchase the equity of redemption from the defendants
in that suit, of Fenwich against Macey's executors, and
that as to the equity of redemption he is Bl purchaser pen-
dente lite, and bound by the decree. I know my assei*
tions as to the law, goes for nothing; but I will here give
you a case of good authority, and which I think is ia
point.

John Finch being the owner of messuage in Godstone,
mortgaged the same to one Budgins for jClOO; John
Finch having issue, only one daughter, being minded- to
keep this messuage in his own name, by his will devised
the same to the plaintiff, Finch, the devisee, and about
six months after John Finch died; Elizabeth, the daugh-
ter, within three days after the death of her father, mar-
ried one Ditcher, and they, with one Cooper, were sup-
posed to destroy this will. Finch, the devisee, brought
his bill against Ditcher and wife, and obtained a decree
to hold the land against Ditcher and wife, and all claim.
ing under them; the devisee. Finch, then filed bis bill
. against Newnham, the defendant, who, pending the suit
to establish the will, bought in the mortgage from Bud-
gin, and also the equity of redemption from Ditcher and
wife, Newnham now answered, and insisted the former
decree, to which he was no party, was unjust, but the
Court declared he should be bound by the former decree,
that he w^s a purchaser pendente lite: See the case of
Finchvs Newnham, (2 Vernon's Rep, page 216.) The
above case has been quoted as good law by Chancellor
Kent, the Supreme Couits of New York and Virginia,
and in fact is deemed a leading case.

Now it seems to me this case, like the beautiful bino-
mial theoram, where the equations produce the same re.
suit, are identical. I will translate the names from the
one into the othei; here is John Finch, dec'd., there is
A. Macey, dec*d, here is Budgin, there is the Bank;
here is Newnham » there is L. W. Macey; here is Ditcher

SPRING TERM 1842. 476

aud wife, there is the executors, the defendants in Fen- Fbnwick'«jjd'«.
wick's suit; here is Finch, the devisee, there is Holton, Macbt.
administrator of Fenwick. Now have you not overlooked '

this all important fact, that L. W. Macey did derive title
to, and purchase equity of redemption from the defendants
in the suit of Fenwick against them? Is it ncn the law
then as this case decides and declares it to be? Is not L.
W. Macey clearly a pendente lite purchaser from the de-
fendants in the suit of the equity of redemption?

If L. VV. Macey is a pendente lite purchaser of the
equity of redemption from the defendants, does he not
derive his title as to that from them. If this fact is deni-
ed now, when plainly brought to your notice, I confess I
can say no more.

If L. W. Macey then is sl purchaser pendente lite, the
veil is lifted and we see plainly the title of Fenwick upon
the face of the decree, declaring his title paramount to
the title of the Bank, under the mortgage given by A.
Macey to the Bank, declaring that Fenwick, more than
five years before the date of that mortgage, had paid and
double paid to Macey all the mortgage debt, due Macey
from Fenwick; it is clear then, as you have declared the
law to be in the case of Breckinridge's heirs vs Ormsby,
(1 /. /. Marshall, 268,) "that it seems to result neces-
"sarily, that by an extinguishment of the debt, ipso
"facto, the perfect legal title relapses to the mortgagor."
Yes, this great derivative title now appears in its true co-
lors, not even sufficient in substance to make a shadow.
A. Macey had nothing to convey, the Bank got nothing
by the conveyance.

Bat I will examine the doctrine you in this opinion
assert to be law, and if it is law it is also clear and cer-
tain, to my mind, that every suit for specific property may
be defeated; these are your words: **a person who is
* 'neither a party nor privy, and who, as between himself
"and the party in possession of the subject of litigation,
"(the defendant in the suit,) has the right of property
"and possession, neither derived from either of the par-
"ties (to the suit) nor acquired since the Hs pendens be-
"tween them, may certainly take the possession during
"the pendency of the suit, (and defeat the decree) with-

476 BEN. MONROE'S REPORTS.

Fenwick'sad'b. ''out subjecting himself to any of the consequences of a
ifACBT. "purchase or intrusion, jpoiden/e /t7e." You say further:
"The principle of the anomalous doctrine of lis pendens,
"is totally and obviously inapplicable to such a case, and
"has never, so far as we know, been misapplied to such
"an on# by any Court of Justice in the world." 'And
you cite your opinion in 9 Dana, which is the only case
I can find in the world to support this opinion. With due
respect, I think I can refer you to some cases where a
person who was neither party nor privy to the suit, aad
who, as between himself and the party in possession of
the subject of litigation, and who had the right of prop-
erty and possession, not derived from either of the par-
ties to the suit, nor acquired since the lis pendens, (bot
L. W. Macey did acquire his right after the lis pendens,
and the above statement, as to him, is, I think, unfair,)
and yet has been held to be an intruder and pendcnieliLe
purchaser, because he took the possession ; the first case
I allude to will be found in 13th John. Rep. page 447,
James Jackson vs Stone; it w^as an action of trespass for
mesne profits. The plaintiff, James Jackson, (who in
Kentucky is John Doe,) commenced two actions of eject-
ment an the demise of Jos. Atwood vs Sand, and Benj.
Baldwin, in which judgments were recovered and writs
of possession executed. Previous to the judgments, the
defendant, Stone, (who was no party,) purchased of one
Scott, who was no party, received a deed in fee, with
warranty. Stone called on the Baldwins, who abandon-
ed the possession of 20 acres, and he, Stone, paid them
$140 for their improvements, and took possession of (he
20 acres, pending the ejectment; they were all put out by
writ of execution, and Stone defended this action fof
mesne profits, and on the trial, showed a perfect title.
Now this is the very case you put, the identical ease;
here Scott had a perfect title, he was neither a party nor a
privy, who, as between himself and the party in posses-
sion of the subject of litigation, had the right of property
and possession, neither derived from either of the parties
to the suit nor acquired since the lis pendens, between
them; he sold to Stone, who certainly took the posses-
aioA as L. W. Macey did, during the pendency of the

SPRING TERM 1842. 477

snit, from the defendants; and he was certainly held and Fbbwick'sad'ii.
did subject himself to all the consequences of a purchase Macey.
or intrusion, pendente lite. In that case the Court declare
that the defendant, Stone, (L. W. Macey,) as respects •

the title (derivative title) from Scott to the premises,
stands in the same situation as the Baldwins, (the exec-
utors of Macey) from whom he took the posses3ion, and
it was upon this plain principle (I use the words of the
Chancellor in the case of Metcalfe vs Pulvertofft,) that
things shall be taken to remain as they were when the
suit was instituted. Now if L. W. Macey had let these
negroes remain where they were when the suit was insti-
tuted, the decree would have been satisfied; that very act
is now, by your decision, declared to be lawful. Yes,
you now say he had a right to take Fenwick's negroes
from him for nothing; I say nothing, for it is not pretend-
ed that Fenwick got any thing for these negroes, nor has
L. W. Macey ever paid one cent for them ; you now, by
this exception to the rule, which Chancellor Kent says is
as well established as any rule of law whatever, which
this Court, in the case of Combs vs Castleman, calls a
stubborn, iron rule, absolutely necessary for the due ad-
ministration of justice, but which you stigmatize by the
name of anomalous; an exception which never was taken
by any Judge or Court that I can find — an exception, the
effect of which is to punish the innocent and reward the
fraudulent rapacity of the guilty intruder. I beg you
pause. It was well said by Chancellor Manners, twice re-
peated by Chancellor Kent, that it was very dangerous,
yes, very dangerous to frittei the rule away by exceptions.
I have made a very elaborate and extensive examination,
and I declare to you that I never yet have found but two
exceptions to this rule, one is where the suit is prosecu-
ted with collusion or fraud, the other is where the com-
plainant is guilty of laches or gross negligence in prose-
cuting his suit; in the case of Murry vs SUbum, Chan-
cellor Kent did say, that if the defendant "possessed cash
'*as the proceeds of the trust estate, or negotiable paper,
•*not due, or perhaps movable personal property, such as
"horses, cattle, grain, &c. I am not prepared to say the
"rule is to be carried so far as to affect such sales; the

478 BEN. MONROE'S REPORTS.

Fenwick'sad'r. * 'safety of commeijcial dealings would require a limita.

Macry. "tion of the rule, but bonds and mortgages are not the
"subject of ordinary commerce, and they formed one of

* '*the specific objects of the suit."

In a very important case reported in 11 Wendall, 442,
where Senator Seward labored with a degree of uncom-
mon assiduity to make an exception to this rule, of pen-
dente lite nihil innovatur, not to favor the fraudulent in-
truder, but in favor of the innocent and meritorious, fair,
and bona fide purchaser, who had entered into possession
previous to the commencement of the chancery suit, by
virtue of a fair and bovafide contract with the true and unj
disputed owner, which was made several years before the
Chancery suit was commenced, and having so previously
entered and made actual settlements, removed the forest
and built their houses, and mixed their sweat and blood
with the soil ; but because they paid a part of the consid-
eration money and obtained the title pendente liie, this
Senator (whose good feelings as a man I admire,) labor-
ed to excuse these innocent and meritorious defendants,
by an exception, to say the least, was very doubtful, and
was contrary to the Supreme Court and was contrary to (he
opinion of Chancellor Walworth, who, to my mind,
clearly proves, that the remedy was in equity; but I refer
to this case for the purpose of bringing to your notice the
important principle which ought to govern and influence
a Judge in favor of, or against adopting an exception to a
rule as well established as this rule is. Senator Seward
says, "that well established as the rule is, yet all ther^
"ported cases admits it to be harsh, and justifiable only
"on the ground that individual rights must sometimes be
"made to yield to rules established for general couven-
"ience; I may add (he says) that general and welles-
"tablished as the rule is, it is not without exceptions—
"exceptions (see page 457,) arising from the very excess
"of hardship, as applied to cases of peculiar character."
Chancellor Kent says, (1 John. Chy, Rep, 570,) ''The
"counsel for the defendants have made loud complaints
"of the injustice of this rule, but the complaint was not
"properly addressed to me, for if it is a well settled role,
"lam bound to apply it, and it is not in my power to

SPRING TERM 1842. 479

"dispense with it. I have no doubt the rule will some- Fehwwk'sad'b.

"times operate with hardship upon a purchaser without Macey.

••actual notice, (but L. W. Macey had actual notice) but
••this seems to be one of the cases in which private mis-
"chief must yield to general convenience; and most prob-
"ably the necessity of such a hard application of the rule
"will not arise in one out of a thousand cases.** Now if
you apply the rule in this case, is not such applica-
tion in accordance with the imperious demands of jus-
tice, if however, you refuse the application of the rule
and fritter away the rule by this exception, do you not
shock the moral sense of justice, and take from the inno-
cent their just and equitable rights, and give to a fraudu-
lent intruder the whole of that remnant of that little es-
tate left these destitute orphans, as a bounty and reward
for his and his father's rapacity.

I have also called your attention to this case in 11th
Wendall, 456, for another purpose ; it is to prove to you
that the possession alone, being taken from the defendants
pending the suit, is such an interest acquired by L. W.
Macey in the subject matter in controversy, that that act
alone makes him a purchaser yenden/e lite.

The whole stress of Senator Seward's argument was
based on the fact that, previous to the commencement of
the Chancery suit, the persons under whom the plaintiff
in error holds, had made "contracts with the true and un-
disputed owner of the premises, had entered into the pos-
session thereof, and made improvements." He draws
the distinction between the case at bar, and that reported
in 7th Wendall, 152, and says in that case, an entire pur-
chase was made during the pendency of the suit in Chan-
cery; he admits that if this was the fact, the purchase
was clearly within the rule. Was not L. W. Macey's en-
tire purchase during the pendency of the suit; did he not
lake the possession during the pendency of the suit; was
not the actual possession such an interest, nay, does not
the change of the possession actually defeat the decree,
and produces all the evils the rule was made to protect.
Senator Seward quotes Senator Coldens opinion in the
case of Hopkins, c^c.vs McCleron, where Colden states
the rule to be, that "if any transfer of interest, pending a

480 BEN. MONROE'S REPORTS.

Fenwick'sad'r. •«siiit, were to be allowed to affect the proceedings, there
Macey. '* would be no end of litigation ; for as soon as a new
**party was brought in, he might transfer to another, and
"render it necessary to bring that other before the Court,
''so that a suit might be interminable; that such, (says
* 'Senator Seward) is the true reason of the rule, was not
"questioned in the argument of this case, nor is it coo-
"troverted in the books, and is, therefore, here assumed."
The same authority, (Seward adds, 450,) says: "Thisrea-
"son has no application to a third person, whose interest
"subsisted before the suit was commenced, and who
"might have been made an priginal. party." Could L.
W. Macey have been made an original party? Had beany
interest before the 21st day of February, 1831, when he
intruded himself in the cause, and purchased and took the
possession from the defendants in Fen\vick*s suit? Was
not his entire purchase and possession made during the
pendency of the suit. He is the person of whom we com-
plain, not the Bank of Kentucky; if the Bank has any
right or title lo this property, she may assert that right
any way she pleases; but she has no power nor no right
to assert it, sell it, or take possession of it from the d^
lendants in Fenwick's suit, without making him a party
and giving him a day in Court to assert and defend bis
rights ; he had brought his suit against the personsinpos-
session of the slaves; he had the right to protection by a
regular and proper appeal to a sovereign Court of Justice,
who had jurisdiction. "Idle would be that grant of juris-
"diction, (says this Court, 1st Lilt, 309,) which did not
"confer on Courts all power necessary to effect its object;
"in vain may Courts be established with power to decide
"contested rights, and useless the appeal to them, if by
transferring the thing sought, the defendant could elude
'the justice of the Court. The principle recogni/ed
"grew not out of any peculiar quality which chattels pos-
"sess; it had its origin in more general reason, and ap-
"plies universally to every description of property. It
"had its foundation in the creation of tribunals of justice,
and results from the necessity which all are under in a
"civil community, to apply to Courts of competent juris-
"diction for the redress of injuries." I contend, there-

« <

«<

C (

SPRING TERM 1842. 481

fore, that Fenwick had a right to be protected; he had Fenwick'sad'b,
appealed and asserted his right to tne specific slaves in a Macbt.
sovereign Court of Justice, and no third person has a
right to take them oat of the possession of the defen-
dants, and defeat his decree; his rights were that things
should remain in the same situation they were in when
the suit was instituted. As Chancellor Kent says: "all
"persons who come in ^spurchnsers pendente lite, though
"they be third persons and no parties to the suit, they
"and their interests (without exception) shall be bound
"and avoided by the decree:" (1 John, Chy. 579.) On
page 580 he says: "It would be impossible, as I appre-
hend, to mention any rule of law which has been es-
tablished on higher authority or with a more uniform
sanction." He refers to many cases, and among others
the case of Finch vs Newnham, (2 Vernon, 216.)

I will refer you to another case which I think is fully
in point against the principle you have assumed in this
opinion, it will be found in the 8th vol. Dana, p, 78.
Ray & Co. assigned some notes, and suits were prosecu-
ted to judgments by the assignees against David Law-
rence, and executions returned "no property;" the as-
signors paid the assignees and filed their bill against Da-
vid Lawrence for a discovery of property wherewith to
satisfy these judgments. Lawrence answered and ad-
' roitted that he held the equitable right to a tract of land
on which he was then living, but alledged he had a few
weeks prior to the filing of the bill, sold the land to his
son, Green, and that the person (Elijah Lynch) upoa
whom he had held a covenant for a conveyance of the
legal title, had conveyed the title to Green after the filing
of the bill. Fourteen months (the record shows) after
this an amended bill is filed, and Green is made a party;
the bill was filed the 20th of April, subpoena executed
on David Lawrence the 23d, and on the 30th Elijah
Lynch conveyed the land to Green; neither Lynch nor
Green were parties to the suit when the deed was made.
Elijah Lyneh had the legal title long before the com-
mencement of the suit; he had the right of property
and the right of possession derived from neither of the

parties to the ^uit, nor acquired since the Us pendens.
Vol. II. 61

482 BEN. MONROE'S REPORTS.

•'1

Fbnwick's ad'b. (exactly like the bank who held the title as mortgagee.)
Macbt. Yet this conveyance, it is declared, should not defeat the
' lien acquired by the suit; why? 4th, because "that the
"conveyance was made to Green on the seventh day after
^the service of the subpcena in this case on David, aad
'because the lien acquired by the lis pendens should not
'be defeated by the legal title acquired penderUe lite^ un-
"less Green Lawrence can prove satisfactorily a prior
"e^% obtained fairly and upon a valuable considera-
"tion, and in good faith acquired before the filing of the
"bilV* Let me ask, had Lee Macey any previous con-
tract or equity, or any pretensions to any right of any
kind before that very day, (21st Feb. 1831,) when he
purchased and took the possession from the defendants,
pendente lite. Here is a case where you have applied (I
wont say misapplied) the well established rule of lis
pendens, and, I humbly conceive, to a case upon princi-
ple the same. Now the law which you have asserted in
this case is correct. If Green could have showed and
proved a good equitable title, and bad acquired that
equitable title previous to the filing of the bill, he would
clearly have shown a good right to hold on to the con-
veyance made, pendente lite, because a court of equity,
in which he was, would protect his prior equity fairly
acquired, before the filing of the bill; but if that equity
did not exist, or if a part or the whole of the puichaae
money was not paid when the bill was filed, and subpoe-
na executed, the suit would have been a lis pendens on
the unpaid part of the purchase money. This principle
is more clearly laid down and explained by Chancellor
Kent, in the case of Heatley, ^c, vs Finsier ^ MuUer,
2 John, Chy, Rep. 158, there Winter, a trustee, who had
power to sell, did, on the 17th May, 1809, before the suit
in Chancery was commenced, sell 50 acres to Muller for
$750, payable in seven annual instalments, with inter- <
est; the first became due 1st April, 1811; Muller took
possession; the chancery suit was not commenced until
June, 1809 — see \st John Chy. Rep. p. 30, where the
suit is commenced. Muller occupied the land until
1814, when he assigned his contract to Finster, who took
the possession and improved the land. Finster, in Sep-

SPRING TERM 1842. 48^

tember, 1813, filed his bill against Winter and obtained Fxrwiok'sad'b.
a decree for specific performance of the contract, direct- Macbt.
ing arid decreeing Winter to convey, on payment of the '

purchase money to Winter, who, in consideration of
{{(lOlS, did convey, and all the money except a note for
$118 had been paid but these payments, and the convey-
ance of the land all having been made pendente lite, were
declared void as against the plaintiff. In the Chancery
suit Chancellor Kent says: "when Finster took an as-
*'signment from Muller, $1015 were doe and paid to
"Winter in 1814, when the money was paid and a deed
''executed. The question is whether the whole negotia-
"tion (yes, Chancery suit and all) between the defendant
"and Winter, and the payment of the money was not
' 'in judgmeTii of law a fraud upon the rights of the
**plainiiffs,'* He says Muller's contract teas good in the
first instance, but it was left inchoate; the money was
not paid nor the deed made; his amicable suit added no-
thing to the validity of the defendant's claim, and when
the party became chargeable with notice of the suit
against Winter, he was bound to cease all other dealing
with him. Yes, every act (suit and all) was declared a
fraud in judgment of law as against the plaintiff in* the
Chancery suit. The lis pendens was notice to all the
world, and this man Finster, although he paid every
dollar of the purchase money and took his deed, and
that too in compliance with a previous bona fide contract
before the bill was filed; yet having been paid, pendente
lite, he was ordered and decreed to pay it over again or
convey back the land in forty days. See how Senator
Seward slips by this case; he declares he had not found
a case nor had there been shown to the Court a solitary
case in which the rule of lis pendens had been applied to
the person who purchased by contract and enters into
possession, and in part performs his contract before suit
commenced, and then, pendente lite, without actual notice,
fulfils his contract and takes a deed for the land. He
cites a number of cases, some decided by Chancellor
Kent, but he fails to cite this case, in the very same vol-
ume, and he asserts that in every case an entire contract
and purchase was made after the suit was commenced.

484 BEN. MONROE'S REPORTS.

Fsmwxok'sad'k. Yes, even he who is laboring to get rid of this rule, so
Macbt. well established, even he admits the law well settled by

"""" all the cases, that where the entire purchase and con-

tracts were lis pendens, however hard the fate of the pur-
chaser may be, it is the well settled law of the land. Was
the entire purchase and taking possession of Lee Macey lis
pendens? Did he come in pending the suit and purchase
the equity of redemption from the defendants themselves?
Was it not Lee Macey who took the actual possession of
Fenwick's slaves from the defendants in that very cause
whilst it was going on with persevering diligence? Don't
foist in the Bank as a defendant in this cause; don't call
Lee Macey the Bank. He, Macey, is the man who canie
in as intruder, as purchaser; he did make his entire pur-
chase pending the suit; he did purchase the equity of re-
demption from the defendants themselves; it was in them
and no where else until he purchased; he did get the
actual possession from them that very 21st day of Febru-
ary. 1831, and if you will but be candid and free yourself
from your previous expressed opinions, both as to the
fact and the law, you will, I hope and trust, feel a pleas-
ure in rectifying the error into which you have inadver.
tently fallen.

I will now say a few words on the awful effects of the
principle you have asserted as law in this case. It is this:
that a third person may step forward and purchase and
take from the defendants, lis pendens, the specific prop-
erty sued for, and then set up title and resist the decree.
If this is law there is an end to the recovery of specific
property by suit, and this case is a melancholy instance.
Here Lee Macey steps forward, purchases the property,
takes the actual possession from the defendants in Fen-
wick's suit, and you say he can resist the decree and set
up, arid has" a right to hold on to the properly, because
he says he has a derivative title — yes, because he says So,
you say that gives him a right to litigate his title — ^how
litigate? How is this derivative title made to appear?
Do you call on him to prove it? 0, no! you say he can
take the property, and by barely setting up a derivative
title, that is, barely asserting that he has derived title
from A, B, or C, he can resist the decree and litigate his

SPRING TERM 1842. 485

title; but I ask, how litigate? Has he not taken the ac- FknwicVsad'r.
tual possession? He won't sue; he has all he wants — Magbt.
nothing can be done without Fenwick brings a new suit
against him, in which he, Fenwick, has to prove his
whole case over again before he can put Macey on the
proof of his derivative title. Yes, Macey you say can
take the possession from the defendants in Fenwick's
suit and hold that possession; compel F. to sue him
again, and he has to prove his whole case over again be-
fore Macey can be called upon or put to the proof of his
derivative title; and if F. should prove his whole case
over again and get a decree again; why, the negroes are
gone again, somebody else will be sure to take them from
Lee Macey, and turn round and tell Fenwick, now, sir,
sue again, 1 have got another derivative title, go ahead
again, I and Lee Macey have kept you at law long enough
for the statute of limitation to bar your new suit. Yes,
this is law now. There is nothing more clear and certain
that if a third person can take the possession from the
defendants, lis pe7idens, and compel the complainant to
bring a new suit, the property sued for must inevitably be
lost forever; if the rule, pendente lite nihil innovatur,
don't apply to such a case it is a perfect mockery to
bring a suit for specific property. Well might this Court .
say through the venerable pen of Judge Mills, that idle
would be the grant of jurisdictions to Courts if the de-
fendants could, by changing the possession of the thing
sought, evade the justice of the Court. Yes, as that ven-
erable pen said in the case of Combs ws Castleman, * 'pur-
suit would only mock the pursuer." Yes, in this very
case that veneiable pen makes another observation well
worthy of his departed greatness. In 7 Monroe^ p, 276,
he uses the following words: "allowing to the defendants
**or either of them, the benefit or shelter from this act
"(this exception to the rule) or to protect themselves by
"it as a shield in this action, is so repugnant to the moral
"sense of all who are conversant with the history of the
"transaction, that we should hesitate long before we
"should permit it." I pray, I beg, I beseech you to hes-
itate long before you visit upon myself, my blood and
kindred, this dreadful calamity. Is not your moral sense

486 BEN. MONROE'S REPORTS.

Fbrwick'sid'b. of iostice shocked to see a lawless and fraudulent intm-
Macbt. der» with full notice and warning, who in this wanton
and aggravating manner, tears from those destitute or-
phans the last remnant of the wreck left them by their
deceased father, saved as it were, from the rapacity of
old Macey, only to be torn from them by his son. Hesi-
tate then, I beseech you hesitate — I have not had a fair
hearing by a full Court. Upon this case Judge Ewing
was not present at the argument; the points now sprung
upon me in the opinion were not taken or mentioned by
the counsel in opposition. I do believe before God, that
I have a just cause. The defendants are in the enjoy-
' ment of the property ; delay can do them no injury; fur-
ther investigation will have the effect of eliciting tmlh
and justice. I do therefore, beg and pray for a rehear-
ing.

Response,

June 4. ^7 Chief Justice Bobertson.

Whatever may have been the temper of the petition,
we have patiently and maturely considered the law, the
facts, and the arguments, which it so emphatically pre-
sents, and we are still clearly of the opinion that the de-
cision which the petition assails, is, in aLI respects, the
judgment of the law of the land on the facts exhibited
in the record.
The principle of The hard but necessary doctrine of lis pendens relied

(his and1hU6^. °"' ®^^ ®^ ^® ^^'^^^* misapplied in the petition, is, as

ly: "that asiran- we have understood it and yet understand it, this and

the' pendency of Only this, in the whole extent of its principle and openi-

Srty^^ ^acquhld tion— that a stranger who, during the pendency of a suit

Sie" artie" to ^^^ Property, acquires from either of the parties to that

that suit, the suit, the property thus in litigation between them, shall

fitilaUon "'be^ Hot he permitted to elude or controvert the ultimate de.

not^be^'TeJSiuI ^^®^^° therein, against the title of the party from whom

ted to emde or he obtained the property. And the cases so copiously

controvert the j/jji'j- r j

decision therein and Confidently cited and discussed in the petition prove,
of Oie'party from ^^en analyzed, nothing more nor^less.
S'Te piS^rty! ^^ ^^^^' ^^ alledged, the Bank was a bona fide mort-
gagee of A. Macey, before the commencement of Fen-

SPRING TERM 1842. 487

wick's suit against him, the title of the Bank was not ac- f«kwicr'« ajj'b.
quived pendente lite; and, of course, if L. W. MaceyhoiS Macet.
acquired all the title of the Bank and no more, he occu-
pies the place of the Bank, and can be no otherwise af-
fected than it would have been by the decree between A.
Macey and Fenwick.

Had the Bank simply foreclosed its mortgage, its title a decretal order
would certainly not have been concluded by the subse- passes no new
quent decree between Macey and Fenwick, merely be- g^ee^tVsTnly
cause the decree of foreclosure was made during the pen- ^ » D«^ ^ ^^^

pre-existing c-

dency of their suit. A foreclosure of an equity of re- quityofihemort-
demption operates only as a bar to the assertion of that fnld«emaWeihe
pre-existing equity; it is only an adjudged waiver or befor^redeema-
abandonment by the mortgagor of an equity which he bie.
might have asserted, and makes irredeemable the title
which was before redeemable. A decretal foreclosure
can no more be considered as passing a new right from
the mortgagor to the mortgagee than a foreclosure or bar
of the mortgagor's right of redemption by a statute of
limitations or by lapse of time should be deemed a trans-
fer of it by the one to the other.

The fact, therefore, that the foreclosure was during the
pendency of the suit between Macey and Fenwick, could
not make the Bank & pendente lite purchaser any more than
it was such a purchaser when it first acquired the re-
deemable title which ripened into an irredeemable one.

L. W. Macey acquired by purchase this matured and a purchase un-
absolute title of the Bank; and he acquired no right from foreciosS?r%c^
A. Macey' s executors, because, having lost or abandoned quires no new
the equity of redemption, they had nothing to pass to gt^ee; be™ac-
him by their voluntary act, or for which they could have ?"ghTofthemo^*
been entitled to any consideration from him or the Bank. «*?«® '"*^« *^-

XT j« • i_ 1 . • r .f 1 . solute by the dc-

JNoi did he even obtain /rowi them, by contract or by any cree of forecio-
act or even consent of theirs, the possession of the slaves '"*'
which were taken in inviium by the arm of the law for
enforcing the light of the Bank, acquired before Fenwick
ever sued A. Macey.

Whether the title of Fenwick or that of the Bank, as
now held by L. W. Macey, is the best, is a question
never yet litigated. The petitioning counsel wishes it
concluded without litigation between the Bank or L. W.

488 BEN. MONROE'S REPORTS.

Fbn\vick*sad*r. Macey and Fenwick's representatives. Why so? Only
Macey. because L. W.Macey bought the title, not of A. Macai
but of the Bank, whilst the suit between Fenwick and A,
Macey was pending. It must be indisputable, that the
title of the Bank was not concluded by the decree be-
tween Fenwick and A. Macey. And how then can the
title of L. W. Macey, which is but the Bank's title, be
concluded or affected by that decree?

If A, having title or claim to a slave, sell it to B, dar-
ing the pendency of a suit for the same slave between C
and D, both A and B being strangers to that suit, can
B*s purchase or title be concluded by the decision of the
question of title in that suit as between the parties (here-
to? Was B, in the technical sense, a pendente lite pur.
chaser? Such a question is not debatable. B's title be-
ing unaffected by the suit to which he was a stranger,
would the fact that, after he purchased from A, he bad,
by distringas or other process of law for enforcing his
right, taken the slave from one of the parties to the suit,
during its pendency, have subjected his title to the decis-
ion in that suit? This, as we think, is as plain a ques-
tion as the other. And no case cited in the petition will
be found, when scrutinized and rightly understood, to
have settled or intimated any tljing to the contiary. It
cannot be either reason or law that, if a bona fide claim-
ant of a movable thing, take it by legal process or even
by the natural remedy, from another in the possession of
it, his title shall be concluded without trial or question,
merely because, when he thus took the possession in bis
own independent and pre-existent right, a suit was pend-
ing, and perhaps without even his knowledge, between
strangers for the purpose of determining their conflicting
claims to the same property. Unless he had, by con-
tract, express or implied, acquired some title to, or in-
terest in the property from the party to the suit, he could
not be concluded by the judgment or decree afterwards
rendered in it; and no adjudged case or even judicial dic-
tum to the contrary, has been cited in the petition or can,
as we believe, be found in the annals of English juris
prudence.

SPRING TERM 1842.

489

It still seem to us, therefore, that the original title of
the Bank and the derivative title of L. W. Macey has
not been concluded by the decree between Fenwick and
A. Macey, and remains yet to be litigated.

If, as asserted in the petition, FenwicVs title is supe-
rior to that of the Bank or L, W, Macey, the way for es-
tablishing that fact was open and plain. Had that way
been taken and pursued, then perhaps the indignant and
perse veiing counsel might have found that his failure
hitherto, in another way, ought not to be attributed either
to "thepafty or the Court,'* but to the law upon it\e case
as prosecuted and now actually presented.

The petition is overruled.

tSUTOR

V8
MlLE3.

Sutor vs Miles.

Covenant.
Case 149,

Mv. 1, 1841.

Error to the Franklin Circuit.
Lis pendens purchaser. Limitation, Estoppel.

CaiEF Justice Robertson delivered the Opuiion of the Court.

In 1836, SiUor's administratrix sued Charles Miles tor The case suiod.
damages for. an alledged breach of his covenant warrant-
ing the title to a slave, Ambrose, sold by him to the intes-
tate in October, 1822, and which slave was one of those
embraced in the suit in Chancery by Wm. Fenwick vs
Alex. Macey and L, B, Fenwick, instituted in June, 1822,
and finally decided in the complainant's favor in 1835,
as fully explained in the reported cases of FentBick vs
Macey et al. (1 Dana, 276;) Femcick's administrator's
L. W. Macey, (9 76. 198;) and the same vs the same, {2
Ben, Monroe, 469.)

The ground of the action was the decree in the case of
Femcick vs Macey et al,, establishing the right of William
Fenwick, dec'd. to the said slave, Ambrose.

The administratrix having obtained a verdict for §1975, Judgments on
a new trial was granted to JMiles, to which she excepted— ^nd^'^/als.^ ^'
and on the next trial, verdict and judgment were render-
ed in bar of her action.

The first question for revision is, whether the Circuit

Judge erred in setting aside the first verdict. And it
Vol. II. 62

490 BEN. MONROE'S REPORTS.

SuTOR seems to us that he did not err in granting to MZesanew

Miles. trial.

On the first trial Wm, Fenwick*s title to ilmtroscwas
indisputably established, and there was not even the
semblance of proof that Miles ever had any title. He
proved only that, in December, 1821, he bought Ambrose
under difi.fa, against Lewis B, Fenwick, but he did not
attempt to prove that Lewis had any title.

But the proof was uncontradicted and conclusive that
Wm, Fenwick was in the adverse possession of Ambrose
when sold under the fi. fa, and was actually in posses-
sion when Miles took him away and sold him to Sulor,
in October, 1822, during the pendency of the suit of
Fenwick vs Macey et al. And it also appeared that Svior
had retained the possession, as in his own right, from the
date of his purchase, for more than ten years.
is u 4 1, - Now, if it be admitted that Miles failed, on the first

0ne who takes ' ^ '

theipossession of trial, to show that he had acquired any title io Ambrose,

UoXiy? which S and that he was guilty, therefore, of a sheer trespass in

the'°party' ^vhS ^^king him from Wm, Fenwick, pendente lite, still, as the

proves success- gaid William was the complainant in that pendinsr suit,

lul in the contro- * i « . , t •

versy, is not es- and, accordmg to all the evidence on the first truil, Lewis
his^righr to *Si^e B, Fenwick, who was a defendant, had no possession,
moperty thus (a- ^^e final decree did not conclude or aflfect Miles. For

ken, by any de- . ,.

cision in the surely the doctrine of lis pendens cannot be extended so

fai as to embrace a stranger who had tortiously intruded
on the successful party during the pendency of the suit,
and deprived him of the possession of property, for estab-
lishing his title to which, against the parties to the suit,
it was prosecuted by him without making that trespasser
upon him a party. In such a case the cause of action
which accrued at the date of the eviction was not sus-
pended by the lis pendens; and, therefore, 5W/or acquired
the legal right of property by his adversary possession of
Ambrose for more than five years without disturbance or
question. And, of course, his administratrix was enti-
tled to recover on the first trial, no more than nominal
damages, on the ground that his vendor had no title.
The verdict, therefore, according to any allowable deduc-
tion from the proof on the first trial, exceeded the legal
measure of damages to which the plaintiff in the action

SPRING TERM 1842. 4»1

was entitled, and consequently was, on that ground alone, Sutor

rightly set aside. " Miles.

On the last trial Lewis B. Femcick, who was examined

as a witness for Miles, witliout objection, testified that cause^ of ^aciioa

he, and not Wrn, Fenwick his father, was the owner of cd"by ihe"wp"nl

Ambrose when he was sold under the execution against dens, and prop-

. crtv tlius taken

himself, and bought as his slave by Miles; that Miles afier 6 years ad-
paid to the sheriff S650 in notes of the Bank of the cannot be°rec^^^
Commonwealth, which was the amount bid by him at ^^'^d.
the sale under the execution, and forthwith received from
that ofiicer a bill of sale for Ambrose, but did not then
disturb the possession of Wm, Fenwick, who was hold-
ing under his (Lewis*) title, and consented to the sale
under execution; and that Miles, shortly afterwards,
agreed that the witness might, within a prescribed time,
'•redeem'* Ambrose, but that he was not able to do so,
and, therefore. Miles made the subsequent sale to Sutor,
and took Ambrose out of the possession of Wm, Fenwick,
without objection, so far as the witness knew or had ever
heard.

There was no opposing testimony.

Upon these facts it seems to us that the juiy was au-
thorized to conclude that Miles had a good title when he
sold Ambrose to Suior, and that, therefore, there had been
no breach of his warranty.

If, as the jury had a right to infer, Leicis B. Fenwick a purchaser
owned Ambrose at the date of the sale under execution, pe^rTonrwho^af-
and Miles purchased his title absolutely, before the com- terwards have a

'^ J' controveisy in-

mencement of Wm, i^eMM?icA;'s suit against Macey and voivingihe tiUe
the said Lewis, then Miles was not a pendente lite pur- purchcsed7£^not
chaser, and his title was not concluded by the decree ren- Seci'io^^^^^^^
dered in the case of Wm. Fenwick vs Macey et al, as has ^^^^ persona,
been already adjudged on the like facts in the case of
Fenwick* s administrator vs L. W. Macey, recently deci-
ded by this Court and already referred to in this opinion.
We cannot, therefore, set aside the last verdict for
want of either evidence or law to sustain it. And, if we
are right in the foregoing view of the case, it is evident
that nothing occurred in the giving or refusing of instruc-
tions, which can be deemed essentially or injuriously er-
roneous.

492 BEN. MONROE'S REPORTS.

SuTOR It is, therefore, considered that the judgment now

MiLBs. sought to be reversed be aflSimed.

S. Todd and H, Marshall for plaintiff; Pirtle and
Wheatley for defendant.

Petition for a Re-hearing,

Dec. 26, 1841. • ^^ Samuel Todd.

I need make no prefatory remarks. I will, briefly as I
can, state the principle set out in this opinion, and state
my humble notions of the law.

The first part of the opinion states, (interatia,) "that
**if it be admitted, that Miles failed, on the first trial, to
"show he had any title, he was guilty of a sheer trespass
"in taking Ambrose fromWm.Fenwick pendente liie^
"still as the said William was the complainant in that
"pending suit, and L. B. Fenwick had no possession, the
"final decree did not conclude or affect Miles;" and you
say further, "that surely the doctrine of lis pendens can-
"not be extended so far as to embrace a stranger who
"has tortiously intruded on the successful party during the
"pendency of the suit, &c. and that Wm. Fenwick was
"bound to make Miles a party,'* &c. &c.

If I understand the doctrine here laid down, it is plain-
ly this, that if a person is in possession of property, and
he brings his suit to quiet the title, and in his bill sets
out specifically the property, describes what it is, and
where it is, and points out the adverse claim, who pre-
tends to have title to it, and contests its validity, then
you say, this suit is no lis pendens, but that a stranger may
take the property from, and out of the suit, and that the
appeal of the complainant to a sovereign Court of Jus-
tice for protection is all nought; and why? Not because
he has no right; not because a sovereign Court to whom
he had appealed was deficient in power to protect his
property and quiet his possession. Oh no! His right
is clear; but the reason now assigned is, (I tremble to
write it, ) that because a guilty trespasser has violated and
trampled under foot the laws of his country, and con-
temptuously scorns the authority of the Court, and for

SPRING TERM 1842. 493

Ibis outrage he is to be secared in his rapacity, and to s^tor
receive that degree of favor which is to make his case an Miles.
exception to a rule, which has been denied to a bona fide
purchaser for full value, and without actual notice.

The case of Garth vs Ward, seems to me a direct au-
thority to the contrary. There the complainant had the*
possession, the suit was to perpetuate testimony. There
Lord Hardwick declares such a suit, to all intents and
purposes, a lis 'pendens, otherwise there would be no rem-
edy for proving a will. He declares it a rule reciprocal
for both parties, and he gave the defendant in that case
the benefit of it: see 2 Atkins, 174.

This Court says, in 9 Dana, 377, the proceedings in
Tennessee **was a judicial proceeding which was prose-
cuted with due diligence to a decree, by the well estab-
lished principles of the common law, had in that State
validity and effect, and conclusive operation, not only
upon parties and privies, but also upon pendente lite pur-
chasers;" if so, the Court having jurisdiction of the
cause, and the process served personally on the defen-
dant, and the subject matter of controversy being within
the jurisdiction of the Court, a decree thus obtained must
have the same force and effect and conclusive operation
in Kentucky, upon the same rights and same class of in-
dividuals. To give it a conclusive effect upon parties
and privies, and not on pendente lileipurchasers, would no
more be giving to it the same conclusive validity and ef-
fect in this State, that it has in Tennessee, than if its
validity and effect were allowed to operate upon parties
only and not upon privies. Comity between States, the
letter of the constitution and act, as well as the policy
and spirit which dictated their adoption, requires that the
same conclusive credit and effect should be given to it
in each of the States, upon the rights of all persons and
all matters involved in litigation."

Now it does seem plain to me, that all that the law
would allow to Miles would be that the statute of limi-
tations would only shield him from such vindictive dam-
ages, for this sheer trespass. If an action of trespass was
now brought against him for that claim, Fenwick is
barred, but does it follow that because he failed to sue

494 BEN. MONROE'S REPORTS.

SuTOB for a trespass for a cause of action accruing after the bill
Miles. filed, therefore, Fenwick is to loose his rights, as assert-
" ed and diligently prosecuted by his previous suit in Chan-

cery. How or upon what fair principle can it be pretended
that he, Fenwick, has forfeited his rights to have his de-
cree carried out. What fault is there in him, to impose
a forfeiture of the loss of his property, fairly established
by his decree, or what merit has Mfles, as an intruder?
Can he take advantage of his own wrong? All the cases
lay down the law clearly and emphatically, that such an
intruder need not be noticed by the complainant. Fen-
wick was in and had the right to the protection of the
Chancellor, and he certainly ought not to be refused that
protection. His previous rights, as set forth by his bill, to
the specific slave, is now to be forfeited because he did
not bring a suit for a trespass against Miles, which was
done and committed jpendcn/c lilt. Is it not enough that
he, Fenwick, is to loose and submit to the special dam-
age which he might have recovered for that trespass?
Must he also loose his negro, for which he had previously
brought his suit, and by law, was entitled to the protec-
tion of a sovereign Court of Justice? Was Fenwick
bound to stop and make Miles a party? How could he
make him a party, for the very day ho took the negro he
sold and delivered him to Sutor. Suppose the case had
come up to this Court from the Circuit Court, and the tak-
ing, like L. W. Macey, had been done whilst the cause
was here, on writ of error, how would Fenwick have
made Miles a party then — would the law alter as the cause
progressed?

It seems to me that the true and clear interpretation of
the maxim, peiidente lite nihil innovaiur, is this, that no
innovation or change of either the title to the property or
the change of the possession of the property, the subject
matter in litigation, will be allowed to aflfect the rights
properly decreed in that suit. All the authorities unani-
mously state the object and reason for which the rule was
made, was to prevent the judgment or decree from being
defeated. This Court (2 Dana, 408, ) repeats the rule and
says, **the rule as to the effect of lis pendens, is founded
"on the necessity of such rule to give effect to the pro-

SPRING TERM 1842. 495

"ceedings of a Court of Justice. Without it every judg- Svtor
"ment and decree for specific property, might be render- Miles.
•*ed abortive," &:c. &c. And the case of Garik vs
Ward, (2 Atkins, 174.) clearly proves that it is wholly
immaterial whether the possession was with the com-
plainant or defendant, if it was in the suit and under the
control and jurisdiction of the Court, so as to be affected
and settled by the decree. It certainly w^as the subject
matter in litigation, and this decree, this very decree de-
clared Fenwick*s title good and valid to this negro, and
set aside and annulled the title of L. B. Fenwick, under
whom Miles claimed, when he intruded himself and took
the possession of the property. Will this decree now be
defeated by the tortious act of Miles? Can he, by that act,
lis pendens, violate all law, and now claim the sanction
of that violated law, to sanction his tortious intrusion?
Now let me ask this plain question, if the negro had been
let alone by Miles, would the decree have been defeated?
You admit, on the first trial, Miles failed to show any title
whatever, but you say that as the said William was the
complainant in that pending suit, and according to all the
evidence on the first trial, L. B. Fenwick, a defendant,
had no possession. Now I do think you are mistaken
as to this fact. Charles Miles, when the cause was call-
ed for trial, filed his affidavit for the purpose of obtaining
a continuance; the plaintiff, rather than the cause should
be continued, admitted the affidavit of Miles to go as
evidence to the jury, and the bill of exceptions shows that
affidavit of Miles was in evidence before the jury. Now
this affidavit oi Miles, which was admitted as evidence,
and was given as such to the jury, positively states that
Miles delivered the possession to Lewis B. Fenwick: (see
page record, 28.) I will here transcribe his very words,
viz: "that this affiant, to accommodate said Lewis, and
"his father's family, left the negroes in the possession of
"said Lewis, at his father's, without charge for hire, until
"he was about to go for goods, when he apprised said
"Lewis that he must then have the money or the ne-
"groes," &c. &c. Now the fact was, that the whole of
this negotiation between Miles and Lewis, who lived in
the family, was kept a profound secret from Mrs. Todd.

496 BEN. MONROE'S REPORTS.

Sdtor She supposed the negroes were in the possession, as they
MiLu. were in the employment of her father. Miles states posi-
' tively he delivered possession to Lewis. He states
that he went to Lewis to get them or the money; and it
does seem to me, that this evidence fully aothorizes the
jury to infer the fact, that Miles did get the negro from
!Lewis. Most clearly the jury were authorized so to find;
and as the verdict is in accordance to such finding, it is
right and ought to be sustained ; and surely Miles comes
with a very bad grace now to deny what he swore to as
the fact.

The case of Alexander, Sfc, vs Pendleton, (8 Grand,
462,) was a suit commenced by Pendleton in the Circuit
Court; he, Pendleton, being in the possession, and claim-
ing to have been in the possession, by himself and those
under whom he claincied, from the year 1732, the suit
was to quiet his title. C. Alexander, in the year 1796,
instituted suit for the land, and pending that suit, Pen-
dleton purchased. But as Alexander's suit abated and
never was revived, it was no lis ^pendens without it had
been prosecuted to a decree. But the converse of the
proposition is clearly laid down by the Chief Justice,
viz: that if that suit had been revived and prosecuted to
a decree, Pendleton was clearly a pendente lite purchaser,
and the statute of limitations would not have run after
Alexander's suit was commenced, if he had prosecuted
it to a decree.

The caseof JCzTZsmaTivs Kinsman, (5th vol. Cwi.
Eng. Chy, Rep. 450,) shows how far the doctrine of lis
pendens has been extended. There a creditor of a testa-
tor obtained a decree against two devisees, of two estates,
directing that each pay their proportion of the testator's
debt. It turned out that no title could be made, to the
manor of Northcombe, and the whole debt was made
out of the Lamerton estate. The devisee of this estate
having paid the whole debt, his right as a defendant
against his co-defendants, was in that suit, declared a lis
pendens, and J. J. Fortesque, 26 years after the com-
plainant's decree was satisfied, purchased the Northcombe
estate; yet he was declared a pendente lile purchaser.
(See the case.) Now I candidly confess, that I do not

SPRING TERM 1842. 497

cite this case with approbation » and yet it would be con- Si;to«
sidered presumption in me to dispute such high authori- Milbs.
ty; but I cite it to show the extent to which the doctrine
has been carried. Now if, in the progress of a suit,
wherein the complainant actually is satisfied his claim,
and the specific objects of the bill are at an end, no per-
son could possibly suppose they would be in any danger
of an equity arising between the defendants, which would
ever arise in the cause and be the subject of a further
decree.

Now how different is the case of Fen wick. He filed his
bill; he set out his right; he prayed that a certain claim,
which he set out, was nought, and asked the Chancellor
to interpose and quiet his title. The Chancellor does so.
They decree his title good; they annul and declare the
title of L. B. Fenwick and A. Macey void, and now
Miles, who had full notice of the statements and defects
of this title, fairly described in the bill, steps forward,
claiming under that very title, and in contempt of the au-
thority of the Court, after full jurisdiction was taken, and
in violation of law, determines to be his own judge,
risque all the consequences; and now, because he has
violated the law, trampled under foot the authority of the
Court, and committed a sheer trespass, therefore, the
Chancellor will tell him, for this meritorious act, you
have, by law, a right to defeat Fenwick's decree, and
take from him his property and defeat his suit, which was
rightfully brought, and prosecuted to a final decree. In
vain, indeed, is power given to Courts to make a decree,
if that decree is not to have any effect. Imbecile are
their powers, indeed, if they cannot give them effect. A
re-hearing is respectfully prayed for. Sam. Todd.

Response,

By Chief Jastlce Robertson. Jun^ 4 IS42.

What has already been said in the opinion in this case
and in that of Fenwick* s administrator vs L. W. Macey ^
renders unnecessary any superaddition on the question
of lis pendens.

Vol. II. 63

496

LiooN et al,
Taylor.

BEN. MONROE'S REPORTS.

We will, therefore, only suggest, that Jtfrs. Todtfs tes-
timony was conclusive as to the fact of the actual pos-
session of William Fenwick, her father, and with whom
she lived when Miles bought, and also when he took and
sold Ambrose.

But even if Lewis Fenwick had been in the possession,
constructively or otherwise, Miles' purchase of his title
having been prior to the commencement of Wm. Fm-
wick*s suit against Lewis Fenwick and Macey, it was not
a purchase, pendente lite; and his taking possession of
the slave during the subsequent lis pendens, should not
have been adjudged sufficient for concluding his claim of
title.

We are still of the opinion, therefore, that there was
no error in setting aside the first verdict. And the peti-
tion does not complain that the last verdict in Miles*
favor was not right.

Petition overruled.

Chancery.
Case 150.

May 4.

Tho* the Chan-
cellor may act
with severity on
points of prac-
tice, yet this
Court will not
interfere on ac-
count of such
rigorous exer-
cise of discre-
tion, unless it
manifestly ap-
pears that injus-
tice has been
done.

The affidaTit of
counsel that he
believesthere toas
ineqttality in a
division, (with-
out specification
•ofiacts, designa-
lion of wilness-
••■ aad dot«-

Ligon et al. vs Taylor.

Appeal from the Louisville Chancery Coubt.

Practice in Chancery,

Judge Ewino delivered the Opinion of the Court.

We think that the Chancellor, as a Court of equity of oii-
ginal jurisdiction, acted with severity in refusing time to
take affidavits to sustain the exceptions. But much dis-
cretion is to be allowed with a view to a speedy adjust-
ment of controversies; and this Court ought not tore-
verse for a rigid exercise of discretion in practice, unless
it manifestly appears that injustice has been done.

The affidavit of the counsel is too general and indefi-
nite against the report of the three selected Commission-
ers, and the affidavits of six other witnesses as to the
equality of the division, to justify the interference of this
Court. It only states the belief of the counsel that in-
justice has been done, and a belief that injustice can be
shown by witnesses, without a specification of facts or a
designation of witnesses by whom it can be shown, and

SPRING TERM 1842. T. 49»

amounts to no more than his opinion that the division is ^^^^^ «' «^-
unequal and unjust. His opinion, against so strong an Tatlor.

array of witnesses on the other side, is not sufficient to ments) amounts
justify a reversal; though he refers to the exceptions ta- opinion!^ Theije
ken, and states his belief that they can be in the main ^m'^ona against

•' ' the report of

sustained by proof, he does not state by what number of three commis-

.. .1 , . • 1 1 .1 *A sioners and an

Witnesses they can be sustamed, or who the witnesses array of six
are, or what superior oppoitunity they had of knowing ^^fficfent to au-
or asceitaining the value of the several portions allotted, Jo"ze this

. ° * Court to intCT-

over the witnesses who have deposed, so as to enable fere.
this Court to determine that injustice has been done, or
that the result would be different if the decree was open-
ed and indulgence allowed to take further proof. Upon
such slender grounds, we do not feel at liberty to uproot
the practice of the Chancellor, open his decree and send
the case back for further expeHment,

Decree affirmed with costs.

Wheatley and Duncan for appellants; Guthrie for ap-
pellee.

Petition for a RE-HEARiN(i,

By Mr. Wheatley. May 23.

The counsel for the appellants having read the opinion
delivered by this honorable Court on the 4th May, 1842,
feels it to be his duty to petition for a re-hearing of this
cause.

The reasons which influence him to present this peti-
tion shall be briefly stated. It is the first lime in the
whole course of his practice as a lawyer, that he has
ever presented such a petition; and such is his respect for
the opinions of the members of this honorable Court,
that he feels great diffidence and much reluctance in at-
tempting to disturb an opinion given by a Court that he
is well assured intended to do nothing but justice to the
parties litigant; yet, inasmuch as he has resided about
sixteen years in the immediate vicinity of the property in
contest, and as he has had a good opportunity of knowing
and properly estimating the value of that property; and
further, as his attention has often been called to that
property, he cannot be ignorant of its value, nor can he

600 BEN. MONROE'S, REPORTS.

UooNetaL 5}^^ hU eyes so as not to see and know the gi^oss and
Tatlos. manifest injustice done to his clients by the decree of
division made in this cause by the Chancellor of the
Louisville Chancery Court.

Believing, and in fact knowing, that said decree is un-
equal, partial, and unjust, and knowing that the opinion
just rendered is final, and that it can never be changed by
any subsequent suit; and knowing that his clients are
most of them infants and all of them non-residents, the
counsel for the appellants feels assured that this honora-
ble Court will pardon his anxiety and solicitude for the
interests of his clients, and will give to this petition a
deliberate and patient consideration, even though an ad-
herence to the opinion delivered must be the result.
This honorable Court will no doubt recollect, that a suit
betwixt the same parties in relation to a part of ihe same
land, was tried at the term, 18 . This suit was
decided in favor of the appellants in this cause, and the
claim in that suit set up by the appellee, John G. Taylor,
against the estate of Daniel G. Puryear, deceased, was
decided to be unjust; and in fact, the note upon which
said claim was founded, was most clearly proved to have
been a forgery. After the determination of that suit, it
was agreed that the land in controversy should be divi.
ded, and to effect an amicable division with as little cost
as possible, the bill, answer, and exhibits were filed
simultaneously, and shortly after the Chancellor made
an interlocutory decree or order, appointing commission-
ers to divide the land and improvements thereon. To
this order or decree there was no objection made by
either party. The commissioners made their report on
Friday the day of 1841 — the leport was

ordered to lie over for exceptions one week, as usual. At
that moment the counsel for the appellants rose and re-
marked to the Chancellor, that he was obliged necessarily
to be absent from home for about ten days; that he was
compelled to attend the Owen Circuit Court; wherefore,
he requested that further time might be allowed him to
file exceptions to the report of the commissioners, which
he believed to be partial and unjust. This was a reason-
able request; there is nothing in the record tending to

SPRING TERM 1842. 601

show any necessity for haste; it is not shown that either ^'®®^ ^^ <*^
party would have been in the slightest degree injured by t^yloh.
the indulgence asked for by the counsel for the appel- ~~

pellants: but the Chancellor, without any good reason,
refused to grant the indulgence, but remarked to the
counsel that if he would write his exceptions to the
report, and leave them with the Clerk, that they could be
filed when the Court should sit again, and that then a
reasonable time would be allowed him to take proof in
support of his exceptions.

With this the counsel for the appellants had to be sat-
isfied. He filed his exceptions with the Clerk; they were
regularly filed in open Court on the Tuesday following,
and on the same day an order was made by the Chan-
cellor, (with a full knowledge of the absence of the
counsel for the appellants) that six days be allowed the
parties to take proof in support of, and against the ex-
ceplions filed, which proof should he taken before the
Master in Chancery, at his office in Louisville, and
without notice.

This honorable Court must know the distance from
Louisville to Owenton, where the Owen Circuit Court
is holden. It is about one hundred miles by the route
usually travelled. The Owen Circuit Court usually con-
tinues in session about ten or twelve juridical days. The
practice of the Circuit Courts generally, is first to dispose
of the criminal business; next the civil cases at com-
mon law, and lastly to dispose of the chancery docket.
The chancery suit of Thruslon, cfc. vs Maslerson,
Chambers and others, had recently been decided in this
honorable Court in favor of the complainants, and was
remanded to the Owen Circuit Court for further proceed-
ings. It was an important causQ involving a much lar-
ger amount of property than was in contest in this suit.
The counsel was not only personally interested in that
suit, but he was the sole counsel for the complainants in
that suit, and therefore was necessarily compelled to at-
tend the Owen Circuit Court until that suit was disposed
of. All this was well known and stated to the Chancel-
lor. Yet, under these circumstances, and in his absence,
after the promise held forth to him that reasonable time

50? BEN. MONROE'S REPORTS.

LiooN etai juhould be allowed him to addace proof in support of liis
Tatlob. exceptions, an order is made allowing only six days to
take proof before the Master in Chancery, at his office in
Louisville, and that too without notice.

Let it here be recollected that this extraordinary judi-
cial order was made when the counsel for the appellants
was one hundred miles distant from the place of taking
the proof, and consequently knew nothing of that order;
and that he confidently expected on his return to be al-
lowed reasonable time to adduce proof in support of his
exceptions. In his absence the appellees selected five or
six witnesses; took their affidavits under the said order,
and filed them with the Clerk. The counsel for the ap-
pellant returned home late at night on Monday, the day
of the expiration of that extraordinary judicial order,
sick and wearied; that it rained all the next day so as to
prevent him from leaving his chamber; and on that day
the case was, by the counsel for the appellees, submit-
ted to the Chancellor for final hearing and decree.

Let it also be recollected, that the whole of the papers
in the cause was, as is usual, sent to the residence of the
Chancellor, where the counsel for the appellants had no
opportunity of examining these ex parte affidavits, or of
knowing what they contained, and that he never had an
opportunity of seeing them until after the Chancellor de-
livered his final decree iji the cause.

The constitution and laws of the land secures to the
worst of criminals the right to be heard in their defence
by themselves and counsel; yet this invaluable right, so
important, is withheld from these poor women and or-
phan children; they, though poor and many hundred
miles absent, are not allowed even one little week to ad-
duce proof to sustain their exceptions, to assert their
rights. Their counsel is deceived; he is promised ample
time to adduce proof in support of his exceptions; confid-
ing in that promise he leaves home; an order is made in
his absence giving every advantage to his adversaries, of
the benefit of which he and his clients are debarred by
his absence. Had the Chancellor made known to the
counsel for the appellants that only six days would be
allowed to take proof before he left home, he might ha?e

SPRING TERM 1842. 503

procured some friend to take proof for him in his ab- ^^^^ **^^-
sence; but no such intimation was given; and on his le- Taylor.
turn the door to justice was closed against him, and
against his unfortunate clients; and all this too was done
in a court of equity in an amicable suit.

Well may this honorable Court, under such circum-
stances remark, that *Hhe Chancellor ^ as a court of equi-
ty of original jurisdiction, acted with severity in refusing
time to take affidavits to sustain the exceptions.*' But
this honorable Court say, "that much discretion is to be
allowed with a view to a speedy adjustment of conirover-
sies, and that this Conrt ought not to reverse for a rigid
exercise of discretion in practice, unless it manifestly
appears that injustice has been done,**

The counsel for the appellants concur with this honor-
able Court, that much discretion is to be allowed with
a view to a speedy adjustment of controversies, when
necessary, when injury might result from delay; but per-
mit me respectfully to inquire, what possible injury could
have resulted from the delay of a single week. The
dwelling house stands yet where it stood then; it is not
injured or dilapidated; it looks as well as it did a year
ago. The record shows that the dwelling house and land
was in the possession of the appellee, Taylor; it is so al
ledged in the bill, and not denied in the answers. If
the delay operated as injurious to any persons it was to
the appellants — no possible injury could have resulted to
the appellees.

The affidavit of the counsel for the appellant is said
to be too general and indefinite against the report of the
selected commissioners, and the affidavits of six other
witnesses. Let it be recollected that the selected com-
missioners were not sworn, and that the witnesses who
gave their affidavits were selected by the appellee, John
G. Taylor. The former suit between the same parties
is a matter of record in this honorable Court, and may
with propriety be looked into, because it was a contest
betwixt the same parties in relation to the interest of
Daniel G. Puryear, in the same land now in controversy.
The appellee, John G. Taylor, in that suit suggests the
death of D. G. Puryear, and charges that he died in debt

604 BEN. MONROE'S REPORTS.

LiooN eiai. to the said Taylor $1050, and exhibits a note for that

Tavlor. amount, putporting to be the note of said Daniel G.

"" Puryear to him for that amount. The appellants in the

present suit, who were defendants in the former suit, de-
ny that the note exhibited is the nole of Daniel G. Pur-
year, deceased, and charge that it is spurious, aud in
fact a forgery. This allegation they clearly establish by
proof, to the satisfaction of this honorable Court, not-
withstanding the testimony of divers witnesses sdeded
by this same John G. Taylor. The decree of the same
Chancellor is therefore reversed, and the bill dismissed
at the costs of Taylor. And now in this suit the same
John G. Taylor is permitted to select his witnesses in the
absence of the appellees and their counsel, and by an
ex parte examination of these selected witnesses, to prove
it to be their opinion that the division made by the com-
missioners is just and equitable. These witnesses give
no description of the buildings, improvements or land;
they are silent as to the size or probable cost of the
buildings; it is, therefore, respectfully contended that the
aflSdavits are too general and indefinite in support of the
report of the selected commissioners; they only slate the
belief and opinions of the witnesses, without giving any
facts or circumstances upon which their opinions are
based. The counsel for the appellants respectfully sug-
gests to this honorable Court, that the affidavit and peti-
tion for time vvas drawn and prepared under circumstan-
ces that precluded the possibility of said affidavit being
more full, clear and definite. He was forced to draw it
without having a single paper in the cause before him
to aid him in his statement. He knew not how many
affidavits had been taken and filed; nor did he know who
the affiants were, or the contents of said affidavits; all
these were in possession of the Chancellor, away from
the Clerk's office. A final decree was about to be ren-
dered, and, therefore, he was compelled to prepare his
affidavit hastily, so as to prevent the rendition of a final
decree. The best he could do was done. He prepared
the affidavit charging that injustice had manifestly been
done to his clients. He referred to his exceptions on
file, which exceptions did minutely and particularly de-

SPRING TERM 1842. 50*

scribe the improvements on the land, and gave their size, Lioon it«l.
probable costs, and their value; and he stated on oath Tatlob.
that if allowed a reasonable time, he could prove the in-
equality and injustice of the division, and mainly, (that
is subsianiially) support the exceptions on file. He
could not, under these circumstances, specifically state
facts, or designate the witnesses by whom he could prove
facts that might or might not be deemed material after
he should have read the affidavits. The exceptions thus
referred to in his affidavit, should have been read and
taken as a part and parcel of bis said affidavit, and thus
viewed and considered. It is respectfully contended
that said affidavit is, and was specific and definite, and
did clearly show that the division was unjust and partial,
and greatly injurious to the appellants. Ex parte affi-
davits are only resorted to injudicial proceedings, from
necessity arising out of peculiar cases and circumstan-
ces. In disputes and controversies, involving important
rigbts and interests, each of the parties litigant should
have a right to see the witnesses, and to confront them
face to face, to examine and cross examine so as to eli-
cit the whole truth and nothing but the truth. To al-
low evidence taken ex parte, to be used upon a final
hearing of causes involving great and important inter-
ests, would inevitably open the door to great injustice.
Men disposed to act fraudulently, can at all times readi-
ly prove whatever they may wish to prove, if allowed to
sdect their witnesses, and to take their depositions and
affidavits in the absence of their adversaries. In such
eases witnesses are often made to say what, upon a cross
examination, they would repudiate or deny. The argu-
ments of counsel in the first volume of the trial of Aaron
Burr, show in strong language the great danger of placing
reliance upon ex parte affidavits. The decree of divis-
ion in this cause is wholly based upon the report of com-
missioners who were never sworn, and upon affidavits
taken ex parte. If the decree should ultimately be af-
firmed, it settles the controversy forever; and whatever
may be the injury sustained by the appellants, they are
without remedy — most of the appellants are poor, th«

property in this controversy is nearly all they have upon
Vol. II. 64

606 BEN. MONROE'S REPORTS.

I4Q0H et ai earth. In seeking an equitable division of that property
Taylor. in an amicable suit, a hearing has been denied them;
without any good reason for haste, their cause has been
hastily tried and decided; they are greatly injured, aod
that too in a court of equity — so called. But it is asked,
is there any probability, if a re-hearing is granted them
and a reversal of the decree should result, that the ap-
pellants ban show by a greater number of witnesses that
the decree of division is unji^st and partial. It is re-
spectfully suggested that enough is in the record to induce
a belief that the inequality of division can and will be
proved by a host of witnesses; because in the record the
improvements aie accurately described. The appellees
have not attempted, either by proof or otherwise, to de-
ny the accuracy of that description. The common sense
of every man (who will reflect upon the subject) will
show that those improvements are worth at least three
times the value set upon them by the commissioners —
the land and improvements are situate in the suburbs of
a large city; hundreds pass the land and buildings every
day; thousands know the land and improvements well;
give the appellants- only ten days to adduce proof in snjh
port of their exceptions and they ask no more — they are
content that all the costs accrued, and to accrue, may
await the final termination of the cause. If they fail
most clearly to show the injustice of the division, they
are content to be mulct in all the costs. The appellee,
Taylor, has been in possession of all the land and in^
provements ever since the fall of 1836, and he is still in
possession; he cannot, therefore, be injured by the delay.
If a rehearing is granted to the appellants, and the de^
cree set aside, and the commission opened allowing both
parties time to take further proof, the appellants ai«
willing that this honorable Comt may impose upon them
such equitable terms and conditions as may seem ri|^t
and proper.

Response,

JuTU 4. By Judge Evt'm^

The fact that the ^" response to the earnest petition of the eounselfor
eompl'tieouniei a rehearing, we would barely remark, that it appears in

SPRING TERM 1842. 507

the record that the report of the commissioners showing *=""

the division, was placed in the hands of the counsellfer Bichardson dt

the coiDpIainants several weeks before the report was ^-^

time of the report, and was then only drawn from him e^aTweeks! aYd

by a rule on the commissioners to show cause why they then filed itino-

' , , bedience to a

did not report. During all this time the counsel had full rule on the com-

opportunity afforded him to inquire into and ascertain «how°Muse why

the facts that could be proven against the equality of the ghJ^" that com-

division, as well as the number and character of the wit- piainanthadam-

nesses by whom those facts could be established; and this hy affidaviu the

was before he left the Court for Owenton. Nor can we |iS!l,'^^^^

doubt, that if an inspection of the papers could be deem- pobabiy would

1 111 1 t m "*^® arailed

ed necessary to enable the counsel to procure other am- with the Chaa-
davits in corroboration of his own, or to point to the
witnesses by whom the inequality could be established;
that had he applied he would not have been refused by
the Chancellor the inspection desired.
The petition for a re-heaiing is overruled.

Scott vs Richardson and McCabe. Motiok.

Error to the Jbsbamine Circuit. ^ Case 151.

Motion, Sheriff's return. Habere facias possessionem.

JuBfti Mjrsball delivered the Opinion of the Court. April 28.

It seems to this Court that when the sheriff had turned ^ .

ail the previous occupants out of the house, and put Scott dam out of the

into it, and given him possession, by words as well as liog^pia^nti/lni

acts, and when he had, besides, removed the goods of feifdffi^TOodi

the previous occupants out of the dwelling house, he had, outof the house,

in substance and in truth, executed the mandate of the tm' ^possessfon!

writ of habere facias, although he had not removed all ^J^eu* Uo'S^h

the property from the kitchen, as he had intended doinff, <^^fi*»:, io<«^s *>«

J ij u J I i. , . « . . . °' not aU removed

and would nave done but for the service of an injunction off Uie premisea

at that stage of the proceedings, staying the execution of *^ MecmtSJTof

the writ. And we are of opinion that although he was ^J"^ Md*2*?e*

arrested by the injunction, before he had done all that he turntothateffect

had intended to do, yet as be had done all that was essen- " ^'°^'*
tial, and had, in fact, put out the previous occupants and

iOS BEN. MONROE'S REPORTS.

^^" put in the party entitled, his return of a full execution of

BicsARDsoif & ibirwrit was proper. Wherefore, the judgment quashing

^^— — the sheriflf's return on the writ of habere facias fossessi-

' onem, and directing him to return the same aa having

been stayed by injunction, is reversed, and the case is

remanded with directions to overrule the motion to quash.

Harlan (^ Craddock for plaintiff; Hewitt and SpUlman

Sot defendants.

Petition for a Re-heariito,

^«y fi- By Mr. Hewitt

The counsel for the appellees, laboring under a deep
conviction that the judgment rendered by the Court in
this case is opposed to a long current of authorities and
decisions, both ancient and modem, as well as the gen-
eral spirit and policy of the law, feel bound most re-
spectfully to recall the attention of the Court to one or
two points in the case.

The evidence as spread upon the record, shows most
conclusively, that at the time the appellee's injunction
was executed upon the appellant and deputy sheriff, stay-
ing their further proceedings, they were still upon the
premises at work, in removing property, and that the de-
fendants in the habere facias were also in the house, sUll
struggling to maintain their possession, and refusing to
yield to the process of the Court. That when the injunc-
tion was served upon them the deputy sheriff retired
leaving the defendants in -the writ as well as the plaintiff
upon the premises and in the house.

The counsel for the appellees will not contend that the
execution would not have been good had the defendants
yielded to the process of the law and acknowledged them-
selves ou/. But the facts were far otherwise, as the re-
cord shows. In Watson on the "oflSce and duties of
sheriffs," page 216, under the title "Habere facias pos-
sessionem,'' it is clearly laid down that "as the sheriff is
to give actual possession of the prei^iises recovered, be
should remove all persons and their goods from off the
premises; for if persons be left on the premises, the ex-

SPRING TERM 1842. 609

ecution is not complete." The same doctrine is laid scon
down in Cunningham's Law Dictionary, if possible ^j^icbabmov &
•till more pointedly and strongly, under the head of ^^^^^''
ejectment, particular title, "judgment and execution,*'
and sundry authorities are there cited in support of the
principle. In bth Dana, page 379, where this Court de-
cided that it was not necessary to lemove the persons and
property off the premises, where they submitted quietly
to the process of the Court, it was strongly intimated that
had not the defendant quietly yielded it would have been
necessary to make thorough work in removing him and
his effects, and we know of no decision of this Court
where this principle is overruled.

It would seem further, to the counsel of the appellees,
that the policy of the law would discountenance the offi-
cers leaving this process bat imperfectly executed, as it
might and probably would lead to personal conflicts be-
tween the parties to the writ, if both were left by the offi-
cer in the actual occupancy oi the premises. The ques-
tion then would seem to be whether the sheriff shall be
permitted to return that he has put the defendant out of
the possession and the plaintiff in, when in fact he left
the defendants on the premises, resisting the process and
claiming and holding the possession, or at least, remain-
ing there forcibly, after the departure of the officer. Ad-
mitting the fact that the plaintiff in a habere facias has a
right to control the writ, it appears that the appellant was
not himself satisfied with a partial execution, for the
officer was proceeding, under his directions, to remove
the whole of the property and to deliver him the premi-
ses clear of all resistance or incumbrance; and before he
had accomplished what he himself considered a full exe-
cution of the writ, he was arrested by injunction. It ap-
pears then to the counsel, that inasmuch as the defen-
dants resisted the process, there could -be no execution
without removing "all persons*' and their effects from
the premises; "for if persons be left upon the premises .
the execution is not complete." And as cases might arise
in which the mere naked possession might very seriously
affect a recovery upon the title, it would seem that officers
ought to be held to the strict principles of law in execn-

610 BEN. MONROE'S REPORTS.

soorr ting writs of possession, aside from other motiTes of poli-
RicHABDsoN 6t cy above alluded to.

^^^^' — The Court is, therefore, respectfully solicited to recon-
sider these points, and if, upoa mature reflection, they
should consider them worthy of a second notice, to grant
to the appellees a re-hearing of the cause.

Hewitt, &c.

Response,

J^M 4. By Judge Marshall.

Although it is ^^^ *'*® ^^^^^ ^^ Opinion that, although it be the duty of
^® .^^% °^H^® the sheriff, in executing a writ of habere facias possessi-

sheriff, if reguir- ' , • i • -e • j i. .i_ i •.•'«. .

edby the plain- OTicm, as it Certainly is, if required by the plaintiff, lore-

BU'the°effe^cta°of Hjove frooi the piemises all the property of the previoos

cxe^ciutng"' the ^ccupants; this is not essential to divesting them of the

'writ of habere possession and vesting it in the plaintiff; and therefore.

facuUf yet this :, , , • .i_- t V. n . xi

is Qot esseniiai that when, as m this case, he actually turns tlie occu-
defendant°of the patitsout of the house and removes all their goods from
possesfeioQ. tijQ mansion, and formally puts the plaintiff in posses-
sion, he has, in substance and in truth, executed the man.
date of the writ. Nor is this conclusion opposed by tbe
doctrine quoted from Watson on the office, &c. of sher-
iff, which, properly understood, means nothing more than
that the execution is not complete, unless all persons be
removed, or if any be left in possession.
The possession I^ 2nd Bacon's Abridgement, title Ejectment, letter 6.

from^^defendlnt ^' ^^ ^^ '^^^ ^^^^ ^^ ^^® .authority of RolL Ahr, 886.

to plaintiff, tho' that when several messuages are recovered, which had

not lemoved been in possession of the same defendant, it bad been

i^V^^eEff held sufficient to give possession of one in the name of

executing the all, "but without doubt. (adds the author) the surestand

nabeTefactCLspo9'

9e$9ionem. best way is, for the sheriff to remove all the tenants en-

tirely out of each house, and when the possession is
quieted, to deliver it to the plaintiff." In this passage.
a distinction is clearly intimated between that which
may be required as a proper and full execution of the
writ, and that which may be sufficient to change the pot-
session; and in neither view is there any mention of the
necessity of removing all tbe property, while in tbe first
case stated, it is certainly dispensed with.

SPRING TERM 1842. 511

In the passage immediately following the one above **=""
cited, it is said, "If the sherifT turns out all persons he Richabdso» &

can find in the house, and gives the plaintiff, as he thinks,

quiet possession, and after'the sheriff is goiie there ap>
pear some persons to be lurking in the house, this is no
good execution, and, therefore, the plaintiff shall have a
new habere facias possessionem, because he never had
execution." But even to this case, which supposes ail
the occupants of the house never to have been turned out,
a query is put in the margin, "whether the Courts would
not now hold it to be a full execution of the writ?" But
however this may be, we are of opinion that even if it
would now be considered that the plaintiff might, in such
case, regard the execution as insufficient, and, therefore,
be entitled to a new writ, which is, perhaps, all that is
meant by the passage, neither the persons who had been
actually turned out, nor those who had remained lurking
in concealment in the house, would be allowed to ques-
tion the sufficiency of the execution. That case, how-
ever, is stronger against the sufficiency of the execution
than this, in which the persons in possession, being two
females, were actually turned out of the house, though it
was raining at the time. And although, after they were
tamed out, and the possession formally delivered to the
plaintiff, they immediately returned into the house, and
all were in the house when the subpoena with injunction
was served; this was not until after there had been a com-
plete change of the possession. And were it conceded
that if they had returned in resistance to the execution,
and claiming to be in possession, it might have been the
right and duty of the officer, on the requisition of the
plaintiff, to torn them out again. And although the plain-
tiff, if that state of things had continued, might have
been entitled to regard the execution as incomplete, and
might have been allowed a new writ, it would not follow,
necessarily, and we are not prepared to admit that such
acta on the part of the occufiants, would either have un-
done that wbieh the sheriff had done» or entitled tbem to
question the truth of his return, stating a full execution
of the writ.

512

BEN. MONROE'S REPORTS.

Savaob

vs
Carter.

But this question need not be, and is not decided in
this case; because, although the tWo females who had
been turned out in the rain, did come in again immedi-
ately after the possession had been delivered to the plain-
tiff, Scott, and while their goods were being removed,
there is not the slightest intimation in any part of the
testimony, nor any circumstance from which it can be
fairly inferred, that they made or intended any resistance
to the execution of the writ, or that they came in claim-
ing the possession, or for the purpose of resuming it, or
that they claimed to be in possession after they came in;
but the presumption is, that they came in for protection
from the rain, or to see to the further removal of the goods
in the house, if any there remained; and that they had
been turned out and remained out, while the formal de-
livery of the possession to Scott was going on, in order
that there might be no apparent obstruction to that cere-
mony; and that they came in, impliedly acknowledging
and not opposing or denying the possession of Scott
The sheriff had et posse with him, and it is not to be pre-
sumed that these two women had any thought of resist-
ing or defeating, by theii own acts on the premises, the
due execution of the writ.

Wherefore, the petition is overruled.

CoVBlfANT.

Case 152.

Savage vs Carter.

Appeal prom the Greenup Cikcitit.
Accord and satisf action. Estoppel,

[This is an action of covenant brought by William G.
Carter against P. M. Savage, on the following article of
agreement:

"This agreement, made this Uth day of April, 1834,
by and between Pleasant M. Savage, of Lewis county,
Kentucky, of the first part, and William G. Carter, of
Greenup county, Kentucky, of the second part. Where^
as, Richard Dearing, Alfred G. Carter and said Pleasant
M. Savage were partners in the erection and carrying on

SPRING TERM 1842. 513

the sawmill and machinery, at the place in Lewis coun- Sata©e
ty known by the name of Rockport. And whereas, an Gaitbr.
execution issued against the said partners, against whom ^

judgment had been rendered, which execution is in favor
of William L. Graham, beaiing date the 21st of Februa-
ry, 1834, returnable on the third Wednesday in April next
ensuing the date of saic| execution, for the sum of two
thousand two hundred and sixty-six dollars and ninety-
three cents in damages, and $10 31 cents costs; which
execution is credited, by endorsement on the back thereof,
with $22 77, made on execution to February, 1834,
And whereas said execution has come to the hands of the
deputy sheriff of Lewis county, and is levied upon the
property of the said Savage, and not upon the property
of the other defendants therein. And whereas the said
Dearing and A. G. Carter are now both absent from Lewis
county and not present to join in replevying said debt,
which the said Savage is desirous shall be done; now the
said Savage and W. G. Carter agree, that said Savage
shall settle and satisfy the proportion of said debt for
which, as partner, he is liable, which interest is equal to
one fourth of the whole amount, and after that one-fourth
is paid, then the said W. G. Carter agrees to become his
surety for one, in the replevy bond, to be given to secure
the residue, and satisfy the said execution; and it is
Agreed farther, that when execution shall issue on said
replevy bond, or before that time, if the parties or either
of them shall choose so to do, the said William G. Car-
ter shall and will pay, for and on account of bis brother,
A. G. Carter, the one-half of the whole amount of the
said debt originally being the due proportion which the
said Alfred ought to pay agreeably to the articles of part-
nership, and also two-thirds of the remaining fourth of
the whole of said debt, said fourth being the proportion
due by said Dearing, agreeably to said partnership. In
consideration of which the said Savage agrees to pay the
other one-thiid of said Dearing's proportion of the whole
of said debt, when or before execution shall issue on
said replevy bond; and the said Savage farther agrees
that he will immediately upon said debt being replevied,

proceed, by the appropriate writ, to foreclose a mortgage.
Vol. IL 66

614 BEN. MONROE'S REPORTS.

SATAfli which has been executed to him by said Dearing, to se-
Castek. care him for this and other liabilities of said Dearing;
and that he will, so far as the said Carter,, as security as
aforesaid, or his brother, the said Alfred G. Carter, shall
have paid the said proportion of two-thirds so due by the
aaid Dearing, he, the said William G., shall have the
control over such decree as may be rendered, foreclosing
said mortgage, to the full extent of the moneys so paid
by them, or either of them, on account of said Dearing's
one-fourth of said debt. And the said William G. shall
have the right to collect and receive that amount upon
said decree; and in case said William G. Carter shall not
so take control of said decree and collect said money, but
the same shall come to the hands of said Savage, then
be will pay the same over to the amount so paid by said
Carter, or either of them as aforesaid, on account of said
Dearing's one-fourth part of said debt, to the said Wil-
liam G. Carter.

And it is further agreed that this agreement is in no
wiee to affect the right of said Alfred G. Carter, in set-
tling the partnership concerns with said Dearing and Sav-
age, who were his former partners in said Rockport prop-
erty, except so fat as under it either of the said partners
or the said William G. Carter, for and on account of said
Alfred, shall actually have paid money upon or on account
of said execution or replevy bond, and which, if this
agreement had never been made, would have been a good
claim by the partner paying the same, or on whose ac-
count the same may have been paid by the said William
G. as aforesaid. In witness whereof, the parties to these
presents have hereto set their hands and seals, this day
and date above written. (Signed by the parties.)

Carter alledges that he has paid the debt in the con-
tract mentioned as due by Dearing for his part of the
judgment, apd by appropriate allegations, the failure of
Savage to sue on the mortgage and give the benefit of
the decree of foreclosure to Carter, to an extent sufficient
to indemnify him for the payment so made for Dearing or
to give Carter the control of so much of the decree in
that case as would indemnify him, Carter. Savage r^
plies in substance, that after the making of the contract

SPRING TERM 1842. 516

sued on, Carter had, by purchase, become the owner of Satms
the equity of redemption in the mortgaged property men- Cabtm.
tioned in Bearing's mortgage to him; and in a replica-
tion to another plea, avers, that since the making of the
contract sued on, he had, at the instance and request ot
Carter, released to him his right and claim under the
mortgage; all which is, however, denied by Carter. The
case was submitted by the parties, to the Circuit Judge,
upon the law and the facts, to be by him decided, without
the intervention of a jury; and judgment was rendered
for the plaintiff for $ , being the entire amount of
two-thirds of one-fourth of the debt to Graham, which
Savage now seeks to reverse. Reporter.]

Judos Marshall delivered the Opinion of Uie CoutL

There is evidence in this case, both direct and circum- s. eoY0n«Dt»
stantial, conducing to prove that after the date of the cov- cioseamortM^
enant sued on, and about the time that William G. Car- JSdgwlto athi
ter made the contract with John D. Carter and Wm. R. 5*°**^* °JL *^**

decree. The in-

Dearing, for the purchase of Richard Dearing's interest terest of D. aa

in the Rockport establishment, and in furtherance of that I^M^^^er exal

contract, an arrangement was made between Savage and tenwd»*a be^

Wm. G. Carter, by which, in consideration of Carter's cornes theownei

' toeieof, to whom

agreeing to pay Dearing's fourth part of the Graham debt, s. reimqaiihas
which he bound himself in said contract with J. D. Car- mJrt^ee'^uS
ter and Wm. R. Bearing to pay. Savage agreed to release, {ji5SfS^f*s.^»
and did actually release or transfer to him all the inter- the oorentnt to
est ill Richard Dearing's fourth part of said Rockport es-
tablishment, which he. Savage, held under a mortgage
from Bearing, indemnifying him against his liability for
the Graham debt and other liabilities. We are inclined
to the opinion that the effect of such an arrangement, if
actually consummated, was to extinguish Savage's liabil-
ity under the covenant sued on, to reimburse Carter for
his payment of two-thirds of Dearing's portion of the
Graham debt, which, by his part of that covenant he
agreed to pay, in consideration of Savage's agreement to
prosecute his mortgage against Dearingand reimburse
him, or let him reimburse himself out of the proceeds.
This would certainly be the effect of the arrangement, if,
as is probable, the mortgage released or transferred was

516 BEN. MONROE'S REPORTS..

Savam t}je jjjjje mortgage referred to in the covenant, as in that
Castbb. case Carter would have taken into his own hands, or at
least would have deprived Savage of the means of per-
forming his part of the covenant ; and even if the other
mortgage which Savage held, securing the same indem-
nity, or if both mortgages were alluded to, still the sub-
sequent undertaking of Carter upon a consideration pas-
sing directly from Savage to himself, and in pursuance of
his stipulation in his contract, for the purchase of Deal-
ing's fourth, to pay the whole of Dearing s debt charga-
ble on that fourth, might well be understood as a waiver
of the original covenant, and a substitution of this new
arrangement in its place ; and in either aspect, the trans-
action might amount to an accord and satisfaction, such
as was pleaded in bar of the action.

But as the direct evidence in regard to the actual con-
summation of such an arrangement, is contradictory and
by no means conclusive in support of the affirmative, and
as there are several circumstances in the conduct of both
parties, apparently inconsistent with their respective
rights and duties under such arrangement, and indeed in-
explicable upon the facts now appearing, whether there
was such an arrangement or not; and as, moreover, there
is another ground on which the judgment must be re-
versed and the cause remanded for a new trial, we do not
feel called upon to decide whether the evidence prepon-
derates for or against the existance of such an arrange-
ment; but conceding that no such arrangement was con-
summated, proceed to consider the legal effect of the
purchase by Carter of R. Bearing's interest in the Rock-
port establishment, and of his stipulation with the ven-
dors as a part consideration and condition of that pur-
chase, to pay the whole of Bearing's portion of the Gra-
ham debt.

If this purchase was ejffectual, and to the extent that it
was effectual we think it clear that Wm. G. Carter there-
by substituted himself in the place of R. Dearing, not
only in regard to his interest in the Rockport establish-
ment, which was mortgaged to Savage as an indemnity
to him for any payments he might make for Dearing on
account of the Graham debt, but also in regard to that

SPRING TERM 1842. 61'

debt itself, so far as it was Dearing's. In consideration Sataoe
of R. Dearing s interest in the establishment, he became Cartib.
bound to pay R. Bearing's debt. His subsequent pay-
ment of the debt then would not enuie to the benefit of
Savage, so as to give him a right to proceed against Dear-
ing, on this or any other mortgage for indemnity, and
Savage's covenant only bound him to proceed on his
mortgage and remunerate Carter out of the proceeds.
But Carter's payment of the Graham debt would, under
this purchase, enure to the discharge of Dearing's, that
is. Carter's own interest from liability under the mort-
gage; and Carter being, moreover, the holder of the
equity of redemption by his puichase, any proceeding
on the mortgage must have been a proceeding against
him and his land. And it would be absurd to say that '
Savage was bound under the penalty of incurring liability
to heavy damages, to proceed against Carter, to sell Car-
ter's land in order to remunerate him for what he had
paid, either in purchasing it or relieving it from a burden
which Savage was under no obligation to remove, but
which rested on it only for the benefit of Savage or of
Carter. It would be scarcely less absurd to say, that Sav-
age was bound to sell any other land belonging to Dear-
ing, for the purpose of remunerating Carter for a pay-
ment made in relief of this land, when the relief accrued
to his own benefit, and the payment was made in pur-
suance of his contract for the purchase of the same land,
and under a direct stipulation, founded on sufficient con-
sideration. On all these grounds, we are of opinion that
the purchase by Carter of Dearing's interest, on the con-
dition of paying his portion of the Graham debt, must,
if effectual, be regarded as a complete extinguishment of
Savage's obligation under the covenant sued on, so far as ,
it related to Dearing's interest in the land, or to his por-
tion of the Graham debt. For the same reasons, the
purchase must have had a like effect to the extent that it
was effectual in securing to Carter the interest of R. Dear-
ing, which he expected to acquire by the purchase. And
it is by no means clear that the entire obligation of Sav-
age was not extinguished by operation of the contract of
purchase, made with his privity and consent, and com-

618 BEN. MONROE'S REPORTS.

Savaok plied with on the part of Carter, even though that cod-
Cartbb. tract might, to some extent, have proved ineffectual to
~ secure to Carter a part of the interest which he expected
and intended to acquire. The transaction would seem to
import this much upon its face, and to be, prima facie,
entitled to this effect in law. And if this prima facie
effect should, under any circumstances, and to any ex-
tent be impaired, because the contract of purchase may,
in consequence of extraneous facts, have proved ulti-
mately inefficacious to secure to Carter the entire benefit
expected from it, it would seem not unreasonable to sajr
that if such partial failure of the purchase was the coDs^
quence of Carter's own neglect or fault, he could not
avail himself thereof to any extent, and therefore, that in
the contest between him and savage, such partial failuie,
thus produced, should not be considered as at all impair-
ing the prima facie legal effect of the contract of pur.
chase, and the stipulation thereon for payment of this
debt by Carter, but that the cause of action for the breach
of covenant now alledged should be regarded as thereby
entirely extinguished. And there are not wanting plaa-
sible reasons for the conclusion that even if, though the
partfal failure of the purchase should not have arisen from
the fault or negligence of Carter, he would still bare no
cause of action upon this covenant of Savage on account
of payments made under the contract of purchase, but
that he must seek his indemnity either against the parties
to the contract of purchase, or if Savage had pioduced
the loss by any act in violation of his relations to the sub-
ject or the parties, by a proceeding against him, founded
on such violation, and not upon this covenant, or by a
proceeding in equity against all parties concerned, in
twhich the rights and acts of all might be duly regarded.
Argument to There is no doubt, upon the evidence, that Carter's
■how that if any purchase was completely effectual to the extent of one
b?had,%ieluV half of Dealing's interest, which was held by John D.
SSch.'^^°'^°*' Carter, and by him conveyed to Wm. G. Carter, whose

payment of the Graham debt completely relieved it from
the burden of the mortgage to Savage, ttie other debts for
which it was liable being otherwise satisfied as appears.
It follows, that for so much of Carter's payment as was

SPRING TERM 1842. 619

made oa account of one half of Bearing's portion of the Savasb
Graham debt, he could not recover; that is, he could, at Cariks.
the utmost, recover only one half of the two-thirds of that
debt which he had cevenanted with Savage to pay, and
for which payment Savage had promised him an indem-
nity or remuneration out of his mortgage, because he
could not have been allowed to refer more than that por-
tion of his payment to this covenant. The judgment was,
in fact, rendered for the entire amount of two-thirds of
Dearing's portion of the Graham debt, with interest there-
on, and was, therefore, for at least twice as much as Car-
ter had a right to recover in this action. On this ground
the judgment must be reversed.

Upon the question whether Carter is entitled to recover
at all, upon the evidence now before us, it is unnecessary
to decide, because we could not now give a final judg-
ment, either for or against him, and upon another trial
additional evidence may be adduced, giving anew aspect
to the case, or at least elucidating facts which are now
obscure, and establishing inferences which are now but
conjectural. It may be remarked, however, by way of
applying the principles already laid down, that if, at the
time when Wm. G. Carter, through his agent, T. N. Da-
vis, made the contract for the purchase of R. Dearing's
interest from J. D. Carter and Wm. R. Bearing, which
interest was an equity of redemption in one-fourth of
36i acres, including the Rockport mills, Savage's execu-
tion against Richard and Wm. R. Bearing was in the
hands of the sheriff, thus giving a lien on Wm. R. Bear-
ing's interest of one-eighth, and this fact was known to
the parties; and if, in consequence, more than $200 of
the money which Wm. G. Carter, or his agent, Bavis,
was to pay to Wm. R. Bearing for his interest, was re-
tained, by agreement, to be applied to that execution,
and was not so applied nor ever paid over to Wm. R.
Bearing, or if ever, not until after the sale of his interest
under said execution, Savage, with a knowledge of the
facts, might well levy the execution on Wm. R. Bear-
ing's interest, for the purpose of coercing payment from
them of the amount so retained, and it was the duty of
said Wm. G. Carter, or his agent, Bavis, to have bid for

520 BEN. MONROE'S REPORTS.

Savage \v^jjj g Deariog's interest at said sale, to the amount of
Carter. the money so letained; and if at said sale the said inter-
est might have been purchased in by them for said amount
or less, and they failed to do it, and it was in consequence
of this failure that the purchase by Wm. G. Carter of
Wrn. R. Dearing's interest proved ineffectual to secure
that interest to him, the inefficacy of said purchase tbos
occasioned, imposed no burthen or duty upon Savage,
and did not give or save a right of action against him on
the covenant now sued on. And further, that even if the
inefficacy of the intended purchase of Wm. R. Bearing's
interest, whether partial or entire, was not occasioned by
the fault or neglect of Wm. G. Carter or his agent, Car-
ter still cannot recover in this action more than one half
of two-thirds of Dearing*s portion of the Graham debt;
and if the title to Wm. R. Bearing's interest, which
passed by the sale under Savage's execution, has been
united to that of Wm. G. Carter, or is held in trust for
hirn or his alienee, he cannot recover more than he has,
in good faith paid or lost, as the price of so uniting the
titles, deducting therefrom so much of the sum payable
by him to Wm. R. Dearing for said interest as he has
not, in good faith, paid to said Dearing or his assignee.
The facts now appearing do not seem to require any fur-
ther expression of opinion on the law of the case, which
may be varied by the facts as they may hereafter appear.
And we need say nothing of the equitable rights or ^em^
dies which may have resulted under the different circoin-
stances which may have occurred.

Wherefore, the judgment is reversed and the cause le-
manded for a new trial.

Owsley ^ Croodloe and Herd and Apperson for plaintiff;
Morehedd ^ Reed and Payne d^ Waller for defendint.

SELECTED CASES

The four opinions vrhich follow were not originally desipiated for pub-
lication! but upon inspection they are found to settle, more definitely, the
qnestioDS on ix^ioh they bear, than any opinions heretofore reported, and
are, therefore, thought worthy of publication. Rbfobtsb.

COVEWAWT.

Perrin vs Thurman.

Appeal from the Lincoln Circuit.

Lien by execution, ^^

JvDOB Underwood delivered the Opinion of the Court— The Chief Justice

did not sit in this case. April 7, 1830L

This case has heretofore been before this Court. The under theeiecu.
opinion pronounced is reported in 4 Monroe, 176. and *jS s^^i^Si'
to which we refer for the facts necessary to understand 509,) when mi
the controversy. Upon the return of the cause to the SoueliforSSoi^
Circuit Court, the declaration was amended. It was ^T^' **^-. ^*

Taiuationi It waa

again demurred to. The demurrer was overruled, and we released from
think correctly, for the amended declaration contains sabj^cY'to other
every essential averment required by the decision of this «*^*^"-
Court. Perrin renewed his plea asserting that a lien had
been created by the levy of Susanna Lee's execution on
the house and lot, which lien Thurman was bound to re-
move, in compliance with the precedent condition to be
performed by him. To this plea the plaintiff in the Cir-
cnit Court demurred, the Court sustained the demurrer,
and the defendant, now appellant, failing to make further
defence, a verdict and judgment were rendered against
him, to reverse which he has a]q>ealed.

The validity of Perrin's plea is the only question for
consideration. The execution which was levied on the
bouse and lot, in favor of S. Lee, issued on the 10th of
November, 1824, and was levied on the 18th of Decern-
ber, 1824. The property was advertised for sale on the
22d January, 1825. The execution was not endorsed
that notes on the Bank of the Commonwealth might be
received by the officer in payment; &e property was val-
ued, offered for sale, and not sold for want of bidderSs.

All these facts appear from the lil legations of the plea,
Vol. n. 66

522

Snxu>'s iuiks
Waking.

BEN. MONROE'S REPORTS.

and taken altogether, show that the house and lot was
released from the effects of the levy, so that there was no
existing lien in consequence thereof. The 5th section of
the act of 1821, (under which act the proceedings upon
the execution were had,) 1 Digest, -509, expressly pro-
vides that the property and real estate not sold for three-
fourths of its value, shall be released from the execution,
but shall be again liable to any future execution; thereby
clearly showing that the lien does not continue where the
officer offers the property for sale and it will not sell for
three-fourths of its value. The plea was, therefore, bad.

The judgment must be affirmed with costs and dam-
ages.

Anderson for appellant; Denny for appellee.

Xk« case cUfed.

€hancery. Sneed's Heirs vs Waring.

Case 2. Error to the Franklin Circuit.

Femes Covert. Parties in Chancery. Surety. Repltpy

Bonds.

3^v. 13| 1834. ivDBM Urobkwood delivered the Opinion of the Court

Luke Munsell, administrator of Achilles Sneed, de-
ceased, replevied two judgments obtained by the admio-
istrators of H. Davis, with Jacob Swigert as surety. The
personal estate of Sneed proving deficient, part of his
heirs conveyed to Munsell and Swigert their interest in
a tract of land descended to them from their ancestor.
^Sneed, with a view to secure Munsell and Swigert On
the 21st of February, 1829. executions issu^ on the
replevin bonds, and were levied on the land conveyedi
as aforesaid, to Munsell and Swigert. No sale having
been effected, for want of bidders, on the^ 1st of May,
1829, wrJts of venditioni exponas issued. These writs
were endorsed on the day of sale, thus: "Either notes
on the Bank of the Commonwealth of Kentucky or its
t)ranches, or the Bank of Kentucky or its branches, may
be received by the Sheriff for the whole amount of this
<i«cution. J. U. Waring,

hy Chas, Buck, Atio. in fad.''

SELECTED CASES. 623

It seems that Waring was entitled to the benefit of SNisD'twHs
both executions, and that he had authorized Buck to Wabino.
act in his behalf. The land was sold by the Sheriff on ^"
the 18th of May, 1829, when Waring became the pur-
chaser at $800, in Bank notes of the kind endorsed to
be taken.

The land levied on was valued at $5 50 per acre, on the
20th April, 1825, and the object in endorsing the writs
of venditioni exponas, was to effect a sale of the land,
so that it would not be liable to redemption, under the
provisions of the 30th section of the act of February,
1828, amending and reducing into one the execution
laws.

The Sheriff conveyed the land sold to Waring; Swi-
gert joined in the deed and conveyed all his interest to
Waring.

Under the title which Waring thus derived, he filed a
bill in Chancery, with a view to quiet his title and to
' compel John Green, &c. to release such claims as they
had to the land.

The heirs of Sneed, who were made defendants, filed
their answer in the nature of a cross bill against Waring.
They deny the validity of his title derived under the
Sheriff's deed, and say that if he has any title it results
from the conveyance made by Swigert. Thejr alledge
several grounds on which they impeach the title set up
by Waring, and pray that he may be compelled to re-
linquish his claim.

Waring objects to the matter of the cross bill as for-
eign and irrelevant, and then proceeds to answer at
length. He sets up a claim to one-fifth of the land, un-
der a bond executed by Munsell, as attorney in fact for
Sneed's heirs, and prays that his title may be perfected
to this fifth, the other four-fifths having been conveyed to
Munsell and Swigert, and given up by them to satisfy
the executions.

In answer to Waring's claim for the fifth of the land
under the bond, the heirs of Sneed say, that it should
not be decreed to him, because that fifth was the share
of Mrs. Southgate, an infant, and her infancy is relied
on as a defence.

644 BEN. MONROE'S REPORTS.

siTBBo'smtBv Xh« Circuit Court rendered a decree dismissing the
Wamv«. bill of Waring, with costs, and dismissing the cross bill

of Sneed's heirs, without costs. To reverse this decree
Circuit a)urt. ^ the hoi^s of Sneed prosecute a writ of error.

We are of opinion that the cross bill of Sneed's heirs

was properly dismissed. Waring's answer to that bill

may be regarded as a demurrer to it. We think the

cross bill defective in various respects.
A laie of Uie As Julia Southgate did not convey her interest to
oTmore of sty- Munsell and Swigert, the levy of the esecutions, and
uiti 'does *not SheiiflTs sale and conveyance could not prejudice her
affect the inter- rights. It was improper, therefore, to make her a party
joint tenants— complainant with those heirs who had parted with their
^i ^^cSSm^n title. She is tenant in common with Waring or ManseU
jrtth the^urcha- ^jd Swigert. As against them, the only right she has is
bui' for partition that of partition. This right remains unaffected bytha
may proper. ppQ^^^jij^gg which have taken place, and whenever she

chooses to assert it in a proper manner, adequate redress

can be afforded her.
It is improper in As to the Complaint made in argument, that the Court
a *SheriiPs'^aSe ^f ^oneously failed to rescind the contract made between
of the interest Munsell, as attorney in fact for Sneed's heirs, and War-

of such persons . ., , /. . i !.•««- oi « >

as held an inter- mg, thereby confirmmg the sale of Mrs. Southgate s
Mie,'^tor^ciaim sbare, made when she was an infant, we deem it only
©rSe'liUo *of ^^^^^^^^7 to say, that we find no such confirmation,
one whose in- Waring prayed for it, but the Court refused to grant iiis
snbiect to^sale. prayer by dismissing his bill. This contract, made by

Munsell in behalf of Mrs. Southgate, has no connection
whatever with the principal subject in controverey, to-wit
the propriety of allowing the Sheriff's sale to stand. It
was an improper attempt to join distinct causes of action;
for as already stated, Mrs. Southgate had nothing to do
with the Sheriff's sale, and cannot be affected by it.

The foregoing remarks equally apply to Eliza Mmisell,
if it be true as is contended, that her title as an heir of
Sneed,, did not pass by the deed to Munsell and Swigert.
Conceding that to be the fact, she cannot be prejudiced
by the Sheriff's sale; and unless the levy and sale ope-
rated upon such estate as her husband, Munsell, may have
acquired by the marriage, it has had no effect at all opon
the interest or share owned by Mrs. Munsell.

SELECTED CASES. 525

Conceding that Mrs. Blanton. Mrs. Young, and Mrs. SNR»D^9 mbibs
Martin, have passed their title to Munsell and ^Swigert, Waeino.

it is not legal for these ladies, in an attempt to reclaim j^ j^^^^ compe-

their title, to unite as co-complainants with those who ^^^ ^^J /«'^f*

. 1 . XT » 1 i_ i_ covert to unite

Is: have never parted with theirs. Nor do they snow them, in a bill with

k- selves entitled to any relief without a tender of the mo- jointtenantswith

u ney which Waring bid for the land, or without proflfering SllJ'iJfherS

to submit to a re-sale, neither of which is done in the interest in lands

1 .n mi ^1 t^Mi • 1 "tir • 'n which their

cross bill. The prayer of the cross bill is, that Waring husband's inter-
be compelled to release to the defendants; to give them Stcn sold,
possession and account for rents and profits, and that the ^ surety in it-
Sheriff's sale may be set aside. Now it would not be pie^y ^V'^^l^'

^ ' , ceives a convey -

proper in any event, to do more than set aside the sale, ance of land aa

and in that event the title would remain where it was ^^ permiu^tbe

before; and in order to produce such a result, Munsell {j^'^g^tis^y "S!e

and Swigert were the only parties who ought to have sued debt The jrant-

as complainants, unless they fraudulently refused to sue, asainst the pur-

and then such of the heirs as were liable to injury from I ra-conteyan^e

their conduct, might proceed against them and Waring ^f^^^^^Q^ly

as defendants, for redress. Swiirert is no party to this due, or an offer

., J . t ..1.11 CM! .i*. . . , to submit to a

suit, and he has united with the Sheriff in conveying to re-sale, and then

Waring. Whatever title vested in Swigert by the deed ^^^ bf SJiSe

from part of Sneed's heirs, has passed to Waring, who p*'^^

cannot be divested of it unless Swigert was made a party;

and so far as Munsell had title under the deed, he has

shown a willingness to reclaim it, and hence there was

no need of joining any of the heirs of Sneed with him.

No fraud is charged against Munsell or Swigert. t

In every view which we have taken of the cross bill, it
is too defective to warrant a decree in favor the complain,
ants in it, and presents, as we conceive, no bar to future
proceedings in a case properly presenting the same mat-
ter; and hence it was conect to dismiss it.

Wherefore, the decree is affirmed.

March ead <^ Braum for plaintiffs; Waring and John-
son for defendant.

526 BEN. MONROE'S REPORTS.

Smftae

9f4 487
B *

Mon;jj Motion. Howard vs Jones.

2mn 520

'^^ ^ C^5g 3 Error to the Harlan Cibccjit.

Motion, Jurisdiction.

May by 1838. Judob Marshall delivered the Opinion of the Court.

From a jndg' The amount Collectable on the execution^ for a failore
i^^rL*^- !t.d?Z to return which by a constable this motion was made,

tice on a motion ' '

against a con- having been above five pounds, the motion should have
to return execu- been made in the Circuit Court, and a Justice of the
imourt^coiiect! Peace had no jurisdiction to try it: (Stat. Law. 420-21;)
f ^Itfrnust'^be ^^^ ^^ Young, (1 Litt. 40;) Abbey vs Thomas, (2 LiU,
to the Circuit 166;) Jennings vs Jones, 4 /. J. Marshall, 217,) unless

in a case arising after the passage of the act of 1835, ap-
proved February 28, 1835— Session Acts, 1834-5, p.
301-2.
If the amount But as the amount demanded, whether determined by
notic^e,^ and the the notice of the^notion or by the judgment of the Jos-
iuS"in*'8u^h tice, exceeded £5, an appeal from the judgment lay to
case exceed £5, the Circuit Court, even before the statute of 1836, above
eriy lies to Uie referred to: Craddock vs Patterson, (1 Mon. 9,) and there
ircul our . ^^^ ^^ ^^^^^ tribunal which could be appealed to for the

correction of the error of rendering a judgment in a
case of which the justice had not jurisdiction^ or of Ihe
error of rendering judgment for 30 per cent, damages
on the amount of the execution, instead of ten per cent,
as allowed by law, {Stat. Law: 420-21; Wilson rs
Slaughter, (3 /. /. Mar. 593-4.)

The appeal, however, being in a case in which, sup-
posing it to have arisen before the statute of 1835, the
justice had no jurisdiction as appears by the notice
which is the foundation of the proceeding, and in which,
as tke evidence must have been limited by the notice,
no case could have been made out in the Circuit Court
of which the justice would have had jurisdiction; and in
which, moreover, if the notice could have been so far
departed from as to admit a demand of the same nature
to be proved, which was under £5, and therefore, withio
the jurisdiction of the Justice, such case would not hare

SELECTED CASES. 527

been within the jurisdiction of the Circuit Court, original Howard
or appellate; it follows as an established principle in rela- Jones
tion to the trial of appeals in the Circuit Court, that the
appeal in this case did not and could not give that Court
jurisdiction to try and decide the motion on its merits,
and give final judgment on the rights of the parties, as
growing out of the facts charged in the notice, unless by
virtue of the provision of the act of 1835.

But it was nevertheless improper and erroneous to
dismiss the appeal for the want of such jurisdiction, even
if the want of jurisdiction had appeared; because the
effect of that order was to remit the appellee to the bene-
fit of his judgment, to be relieved against which the ap-
pellant had made his appeal; and because, although the
appeal did not give the Court jurisdiction of the whole
case, or of any case which could be presented on that no-
tice, it gave it jurisdiction over the question of jurisdic-
tion itself, and instead of making an order which opera-
ted against the appellant who had appealed from a judg-
ment rendered against him without jurisdiction. The
Court should in some form, have decided in favor of the
appellant, on the ground of the want of jurisdiction in
the Justice: Ellidge vs Wilson, (1 /. /. Mar. 587-8.)

On this ground, therefore, if the case does not come j^^d if upon
within the act of 1835, which cannot be ascertained as Ji?*'"^f J" ,***.®

Circuit Court, it

the record now stands, the judgment of the Justice shaU appear that
should have been reversed; or on motion of the appel- qo^ jurisdlcUon.
lant the notice might have been quashed or the motion fay^"ihe°cfrcuu
dismissed. But if the case comes within the «ct of Court, auchjudg-
1835, the Justice had original jurisdiction of the motion entered as would
and the Circuit Court had jurisdiction on the appeal, so SJ^^S© *^mou'on
that in either Court the order dismissing the appeal was ^'°™ ^^e* ^ro^
erroneous, and the Court should have proceeded in the neons judgment
motion far enough to ascertain whether the cause of the *p^*^* ^^°^
motion arose since the passage of the act of February
28, 1835, in which case he should have proceeded to a
full trial on the merits, and if not he should have revers-
ed the judgment of the Justice.

Wherefore, the order dismissing the appeal is reversed
and the cause remanded for further proceedings as herein
directed. Henderson for plaintiff.

528 BEN. MONROE'S REPORTS.

Chancery. Dyer vs M ears &c. Basham v$ Mears &c.

Case 4. Error to the LouisvUiLB CHAJircBBY Coubt.

Priority of Lien. AUachmerU in Chancery,

Aprils 1840. J uIx^b Marshall delivered the Opinion of the Court

Where the bonds f^HE following opinion of the Court, rendered on the

en"b''"tw?^it- ^^^^ ^P"'' ^^^' ^^ ^^' *^®° designated by Ihe Coart
taching credit- for publication; and the following brief statement of bets

ors were execu- • j , « i ; j ^ j« j

ted on the same IS deemed necessary to a correct understanding and ap-

^tili^'^to !how plication of the principles recognized in the opinion,
which was first The steam boat Mt. Vernon had been attached and

one obtained the sold by Order ofthe Chancellor, and part of the price re-

5ie*ChaSceii2?! mained in the hands of the Master. On the 13lh of the

the oUier had month Basham filed his bill in open Court for attacbini

process served , i. »* •

10 minutes first in the hands of the Master a portion of the remaiDin;
attached efiects price for which the boat sold, to satisfy his demand. An
ded pro rfl((^^^' ^^^^^ ^*^ ^^^^ conditional, to become effectual on giv-
ing a bond of indemnity, which was done on the 14th.
Dyer on the next day filed his bill for a like purpose,
and a like order was made by the Chancellor at his chain,
ber. They both executed bonds on the same day, and
Dyer had his subpcBna served on the Master ten minutes
before Basham — these facts appear on the record.

Repobter.]
As the funds attached under the bill of Basham, ftc
and under that of Dyer were in the hands of the Master
and subject implicitly to the order of the Court, and mar
be considered as in fact in Court, we are of opiniontbat
the lien of each party upon the fund roust take date from
the time when the order of attachment in his case took
effect, and that as in each ease the order of attachment
was to take effect only on the execution of a bond by the
attaching creditor, the priority of lien depends upon the
order of time in which the bonds were executed, and not
either upon the priority of the order of attachment in
the one case, or the priority of the service of thesabpcnni
upon the Master, in the other.

But in this case, both bonds were executed on the
same day, and there is nothing on the face of either to

SELECTED CASES. 520

indicate which was first executed. And as wc do not i^^^"

find any conclusive presumptioh as to this point, either Mkabs, &c.

Rash 4M.

in the fact that Basham & Co. filed their bill and obtain- vs

ed their order of attachment one day sooner, or that Dyer, Mbars, &c.
though latest in commencing his proceedings, had his
subpoena served upon the Master ten minutes before the
other; and it being impossible to determine satisfactorily
which of the parties is entitled to absolute precedence
by executing bond first, the only safe conclusion seems
to be that the fund which is insufficient to satisfy both
demands should be divided between them in proportion
to their respective amounts. Each of these parties seems
to have been pursuing the same fund with reasonable
diligence, and even if it is to be presumed that Dyer
knew of the order made in Court upon the bill of Bash-
am & Co. before he filed his own bill, he was not bound
to wait until that order should become effectual by the
execution of the required bond, and if he had shown
that his subsequent order was first made effectual by his
superior diligence, he ought not to have lost his advan-
tage merely because he may be presumed to have known
that a prior conditional order had been made upon the
same fund in fav6r of another.

The decree is reversed and the cause remanded, with
directions to render a decree dividing the fund in con-
test between Dyer on the one part, and Basham & Co. on
the other, in proportion to the amount of their respective
demands.

And the costs in this Court are divided.

Kearney for plaintiff; Owsley for defendant.

Vol. 11. 67

INDEX.

ABATEMENT.

1. Non-resident plaintiffs in ejectment, prosecuting writs of error in this Court, are

bound to give security for costs &s non-resident plaintiffs in other actions.
Hudgen et al. vs Jordan, 44.

2. Matters of abatement to proceedings by motion in the County Court, must be

moved in the Court below, and the facts necessary to show such matter avail-
able made out by proof, or it cannot be effectually relied on is this Court.
Mize, ^c, vs Noland, ^c. 295.

3. A plea in abatement to the jurisdiction of the Court on personal grounds, appli-

cable to one defendant only, is not available for another defendant; and it is
error in such case to abate the suit as to all the defendants. Moore vs Smith
et al., 341.

ABANDONMENT.

1. For the husband to leave his house professedly with the intention to remain

away, and not to live with his wife, and his again returning on her leaving
it, ia ahandonmeM statutory and actual. Logan vs Logan, 145.

2. Although ihe conduct of the wife may be turbulent, quanelsome and highly dis-

agreeable to the husband, yet it will not justify abandonment imless his life be
in danger. Ibid, 146.

3. Unless the conduct be such as to justify a divorce, it will not justify abandon-

ment. Ibid, 147.

ACCORD AND SATISFACTION.

1. That a covenant had, by new contract between the parties, been extinguished,
may be relied on as a good accord and satisfaction. Savage vs Carter, 517,
See Covenant.

ACCOUNT.

1. Long and complicated accounts, settled by the inferior Court, will not be re-
examined by this Court upon general allegation of enor therein, unless some
specific error be designated, especially in a case which has been before exam-
ined by this Court. Clark, ^c. vs Bell, ^c. 2.
See Chancery.

ACTIONS.

1. Where two or more are jointly and severally bound in an obligation, the action

is transitory, and they may be sued in any county in the State where either
may be served with process; and process or alias process may be sent to the
counties where the other defendants reside. Moore vs Smith et al. 341.

2. The statute of 1796 applies the jurisdiction to any county in which the suit

may be brought, leaving the jurisdiction according to the common law, which
ia not changed by the act of 1812; nor does it restrict a joint suit to the domicil
of any one of the defendants. Ibid, 342.

32 IXDEX.

A CTIOXS— ro//fi/u/rr/.

li. Tlie staUitc of 1812, Slat. Law, 343, dues not change the common law jun>-
(liciion in regard to suits on joint or joint and several obligations; and ihe tenu
resideSf used in the 4tli section, means wherever the defendant may be foiiud
and served with process, though not his actual domicil. Ibid, 343.

ADMINISTRATOR—

1. Appointed in Kentucky, to one who, though a citizen of Kentucky, died in
Mississippi, has the legal right to collect a bond due to the intestate, though it
was in his possession in Mississippi at his death, no legal executor or admin-
istrator there showing right. Barnes* Adm'r. vs Brashear et al. 384.
See Executors and Administrators.

ADVERSE POSSESSION.

1. Entering under the holder of the legal title and looking to the person holding such

title for a conveyance, is not an adverse possession. Griffith vs Diclcen, 21.

2. To render a contract of sale of land void, under the champarty act of 1824, the

the possession must be more than the occasional cutting of fuel thereon, when
it is not connected by title or boundary with an actual improvement, resi-
dence, or other ostensible occupancy, especially when the vendee had uu
knowledge that it had ever been used adversely to his vendor. Wicklije \s
Wilson et al. 43.

See Personal property, 1.

See Possession, passim.

AFFIDAVITS—

1. A re* necessary to pleas denying the assignment of a note sued on. Burks, ^r.

vs Howard, 67.

2. And it is not necessary that such affidavit should, in terms, charge that tAe as-

signment was forged. Ibid, G8.

ALLEGATION AND PROOF.

1. Although an action be not for enforcing a contract, nor for recovering damages

for a breach thereof, but for recovering consequential damages resulting frwn
a fraud therein, the allegation and proof of it should correspond. Paris vs
Lewis, 377.

2. Allegation that the price to be paid for a horse was "the wood work of a wag-

on," proof that it was "the woodwork of a wagon and eighteen chairs" 13 not
such a variance as to authorize a non-.suit. Ibid, 377.

ALIMONY.

1. Until the statute of 1800, abandonment alone was not a sufficient cause for u

divorce, a mensa et thoro, and for alimony. Logan vs Logan, 144.

2. The Chancellor has power to change his decree for alimony, and reduce the

allowance as the circumstances of the parties may require. Lochidge v^
Lockridge, 258.

3. The decree for alimony should be for so much only as with separate property <A

wife will maintain her in decency and comfort during the separation. Logar
vs Logan, 149.

4. In cases where the Chancellor decrees alimony, he should retain the case for

the purpose of enlarging or curtailing the allowance as circumstances mav
warrant, and for keeping open the door of reconciliation. Ibid, 150.

INDEX. 533

ALIM ONY— Contimicd.

5. Though the husband and wife by an anti-nuptial contract, may agree that each
shall retain their separate property, such contract presents no bar to a decree
for alimony; but in such case the allowance should be only for so much, in addi-
tion to the wife's own resources, as will maintain her in decency and comfort
during the separation. Logan vs Logan, 149.

AMENDMENT.

1. A judgment entered de bonis testatoriSf when it should have been de bonis fro-

priis, is amendable at a subsequent term after its entry. Hood, AdnCr vs
Link, 38.

2. A certificate of publication, to sustain a decree, amended after a lapse of four

years from the rendering of the decree and seven years from the publication.
Djioning's heirs vs Collins et al. 96.

3. The failure to give the bond required by the statute of 1827, where a decree is

rendered for the sale of a non-resident's land is not remedied by giving bond
at a subsequent term, or after writ of error sued out. Calk vs Francis* Ad-
jninisiralor, 42.

ANNUITY.

1. A devise or an annuity limited to widowhood is not against tiie policy of the law.
Coppage vs Alexander's heirSf 31 3.

ANSWER IN CHANCERY— ^

I . To a bill not admitting the allegation of insolvency therein made, will not be
taken as a denial of the iiame allegation made two years afterwards in a se-
cond suit between the same panics, incorporating the record of the first.
Luckett et al. vs TripletVs adm'r. 39.

APPEALS TO THE CIRCUIT COURT.

1. Appeal lies to the Circuit Court from decisions of motions against constables

where the amount exceeds £6. Partlow et al vs Lawson, 46.

2. In appeals from Justices of the Peace to the Circuit Court, where it appears

from the face of the papers filed that the Justice had no jurisdiction, it is
proper to dismiss on motion; or if after the jury is sworn it so appear in evi-
dence, to instruct the jury to find for defendant on the ground of want of ju-
risdiction in the Justice. Hoskins v^ lioberls, 204.

3. Appeal lies to the Circuit Court from the judgment of a Justice of the Peace

against a Constable, for failing to return an execution, where Uie amount col-
lectable exceeds £5. Howard ys^JoncSj 52G.

4. If the amount specified in the notice and the judgment of the Justice in such

case exceed £5, the appeal lies to the Circuit "Court. Ibid, 626.

5. If, upon hearing an appeal from the judgment of a Justice, it shall appear that

the Justice had no jurisdiction, and that no appeal lay to the Circuit Court,
such judgment should be entered as would prevent the plaintiff in the motion
from proceeding on the erroneous judgment appealed from. Ibid, 627.

ASSETS.

1 . The hire of slaves is assets in the hands of an administrator; and in a suit
against an adm'r. ^t is proper to assess hire up to the time of rendering the
verdict. Barnett, adm'r. of Towles vs Stephens' adm'r, 447.
See Executors and Administrators, passim.

534 INDEX.

ASSIGNMENT.

1 . To throw the proof of assignment on plaintifT, sueing on an assigned note, the

plea denying it iniist be sworn to. Burhs, 6fC. vs Howardf 69.

2. A partial assignment of a note does not pass the legal title or right of action to

the assignee. Elledge, dfc. vs Straughn, 81.

3. The obligee after a partial assignment, may, by using terms sufficiently cam-

prehensive, transfer the entire legal title; but the assignee in such case would
be a trustee for the first equitable assignee of part. Ibid, 81.

4. The assignment of the balance of a note, a part being paid, passes the Ic^al

right to sue. Ibid, 82.

ASSIGNEE AND ASSIGNOR.

1. Assignee of a part of a note holds only an equitable right to the part assigned,

and the obligee or his assignee of the legal property in the note is a trustee
for him to that extent Ellidge, ^c. vs StraughUj 82.

2. A.ssignee of the balance of a note, part being paid, has the legal right to sue-

Ibid J 82.

ASSIGNEE.

1. The assignee of one of two bon^ds or notes, the payment of which is secured by

mortgage, is a necessary party to a suit by the other assignee to foreclose the
mortgage. Bell vs Shrock, 29.

2. Assignee of a note, the consideration of which fails after the assignment, will

not be permitted to collect it any more than the original obligee would. Luck-
ett et al. TripleWs adm*r. ^c. 40.

3. Assignee of bond for title to real property, has his election to sue for a specific

execution of the contract of purchase or at law for damages, and this election
and pursuit of one remedy will merge the bond and prevent the pursuit of the
other. Combs vs Tarlton'sadm'r. and heirs, 194.

4. The assignee of a bond for title, sueing in Chancery for a specific execution,

and being called on for an advancement to procure Uie legal title, should make
his vendor a party and require him to relieve the title,* if he fail to do so he
cannot afterwards, sue on the bond for title to recover the advancement so
made to relieve the title. Ibid, 194.

ATTACHMENT BOND.

1. The surety in an attachment bond taken by order of the Chancellor, may be
made responsible by a rule as the principal, without suit at law on the bond;
and if a bond in such case contain obligations not directed by the order of the
Chancellor, such obligations will be disregarded by him. Moon ^ Taylor ts
Story, 357.

ATTACHMENT IN CHANCERY.

1. Chancery attachment lies against a defendant who is absent from the State

during one term of the Circuit Court in the county of his residence, though
the debt did not fall due in time to have obtained a judgment at law at such
term. Dudley vs Donaldson, 6^. 151.

2. -An execution creditor, after a return of nulla bona, filing his bill and serving pro-

cess on his debtor, and the debtor of his rfebUJr acquires a lien on any money
or thing due to such execution debtor to satisfy his judgment. Robertson vs
Stetoart ^ Spring, 323.
See Lien, 1.

INDEX. • 535

ATTORNMENT—

1. Is not necessary to entitle the mortgagee to rent, accruing subsequently to the
execution of a mortgage, on a lease made before the mortgage. Castleman vs
O. 4* I BeU, 158.

ATTORNEY AT LAW—

Obtains a judgment, sues out execution, and purchases property at a sale-
made under such execution, to the full amount thereof, and directs the exe-
cution to be returned satisfied, the judgment is dischai^ed, and any defect in
his authority is a matter of adjustment with plaintiff, attorney and Sheriff.
Dutallva Waggeneff 184.

AUTHENTICATION.

1. The commission under which two Justices of the Peace may have taken the
relinquishment of the right of inheritance of a feme covert^ must be returned
to the office of the county where the land lies and there recorded to effectually
pass the title. Oray and wife vs Patton, 14.

AVERMENT.

See Pleas and Pleadings, 7, 9, 11.

BAILMENT.

1. The'guaidian hiring a slave has the right to sue for damages for a failure to re-

turn the slave, as well as for the hire. The hirer is under an implied obliga-
gation to return a slave hired. Swing ^ Conner vs Oistf 46d.

2. The recovery of damages by the hirer of a slave for a failure to return it, does

not as matter of law vest the title in the defendant Ibid, 467.

3. The jury in assessing damages for a failure te return a slave hired, may assess

damages equal to the value of the probable costs and expenses incident to a
re-caption. Ibid, 468.

BARON AND FEME.

1. The title to slaves held by the father as the natural guardian of his infant fe-

male child, vests absolutely in the husband of the child on marriage; and on
the death of the wife husband alone can sue. Findley and wife vs Patterson* 9
executors and devisees, 77.

2. If a devise be made to the wife, dum sola, of land charged with an incum-

brance, which is paid by the husband after the maniage, though the wife die
without issue born alive, the husband has no lien for re-payment of such dis-
bursement King's heirs vs Morris 4* Snell, 100.

3. In such case the devise or condition is in substance an offer of sale to the devi-

see, and being embraced by the husband the title passes to the wife and it is
purchased for the benefit of the wife by the husband. Ibid, 101.

4. Where husband marries a wife, to whom her father had before marriage devised

a tract of land, charged with the payment of a sum of money greatly less than
its value, husband receives by the wife personal estate from her father's es-
tate exceeding the sum charged on the land, pays off the charge and takes the
land, the presumption is that it was an advancement to the wife and for the
benefit of the inheritance; and on the death of the wife, without issue born
alive, husband has no lien on the land for lemuneiation either out of the prof-
its or otherwise. Ibid, 102.

636 INDEX.

BARON AND FEME^ Continued.

5. Husband and wife mortgage the land of the wife for money borrowed dunng Uie
corerture to pay the debt of the wife, dum sola, husband at the same time ex-
ecuting his bond for the payment of the money, the debt will remain a charge
upon the land of the wife, and husband only surety; and if in such case,
payment be coerced from the husband, he will be reimbucscd out of the land.
Ibid, 103.
See insurance f I.

BAR BY FORMER ADJUDICATION.

1. Though an uncertainty may arise whether the adm'r. of the heir should sue on
a bond given for the conveyance of land; yet if the heir proceed in Chancery
to a decree, the administrator being a party, the adm'r. will be bared from af.
terwards maintaining a suit at law on such bond. Ccmba vs Tarleton'a adnCr.
and heirSf 194.
See Vendor and Vendee, 5.

BAR BY LAPSE OF TIME. •

See Lapse of TinUf passim.

BASTARDY.

1. That the father was in the county, the mother there, the child bom there, and

process sensed on the putative father there, warrants the presumption that the
father rci^ided there, and the Court had jurisdiction. Erarts vs The Commn-
wealthy 55.

2. 8100 per year for 17 years will not, in the absence of all proof of the condition

and circumstances of tlic parties, be deemed an extravagant sum for the sap-
port, &c. of a female bastard child. Ibid, 65.

BILLS OF EXCHANGE.

1. The seller of a Bill of Exchange, without fraud, is not hable, except for faiiuie

of consideration, arising from the non-acceptance of drawee or non-payment,
or insolvency of drawer and endorsers, not b^ing an endoiser himself. John-
son vs Welby, ^c. 122.

2. The protest of a domestic Bill of Exchange is superfluous ajod unauthohtative,

and is no proof of the dishonor of the bill in Kentucky, and the Court will
not judicially presume that the law of Louisiana is different Whiting et oL
vs Walker et al. 262.

3. The addition of the words or order or bearer in a promissory note are mateiial.

Johnson vs Bank 27. Slates, 312.
See Deeds.

BILLS OF EXCEPTIONS.

See Practice in Actions at Law.

BONDS STATUTORY.
See Delivery Bonds.

BONDS REPLEVY.

See Replevy Bonds,

BONDS FOR COSTS—

1. May be required of non-resident plaintiffs in writs of error to judgmcnls in
ejectment as of other plaintiffs, and if not given suits may be abated for thjit
cause. Hudgens et al, vs Jordati, 44.

INDEX. 537

BONDS FOR TITLE.
See Assignee f 3, 4.

CESTUI QUE TRUSTS.

Sec Trusts and Trustees.

CHAMPERTY AND MAINTENANCE.

1. A deed of conveyance from several grantoiB, and executed by part before tlic

champerty act of 1824 took effect, is good and effectual to pass the title of such
as may have executed it Griffith vs Dicken, 23.

2. The occasional cutting of fuel off a tiact of land uninclosed, not connected by

title or boundary, with any actual improvement, residence, or other ostensible
occupancy, is not alone a sufficient adveise possession to render a conveyance
thereof champertous and void, under the statute of 1824, especially where the
vendee had no knowledge that the land was ever used adveiBely to his vendor.
Wickliffe vs Wilson et aL 43.

CHANCERY.

1. A bill in Chancery alledging superior title botha^ law and in equity, without any

exhibition of title, or showing the nature of the claim should not be entertained
by the Chancellor. Handley vs Bell, 2.
See Accounts 1. Equity and equitable jurisdiction^ passim,

2. The Chancellor applies payments as the law Judge, firbt to the extinguishment of

the interest, &c. Moon vs Ihylor and Story , 354.

CHxVNCERY PRACTICE.

1. In a proceeding in Chancery to subject the lands of a non-resident to sale, tlic
bond of indemnity required by the statute is indispensable, and it will not sus-
tain the decree rendered without such bond, to take it at a subsequent term to
that at which the decree is renderal, the failure to give bond is nut a clerical
misprision. Calk vs Francis* adjninistrator, 42.
See Practice in Chancery, passim.

CITY ORDINANCES.

Sec CorporationSf passim.

CLOCK PEDLARS.

1. Clock pedlars sueing on note^ given for clocks, cannot bo re<|uii(xl (o cxiiibit their
license to sell unless some proof i.s made to raise a prcburaption that they had
no license. Brown vs Young ^ 28.

CLERICAL MISPRISION.

1. It is a clerical misprision to enter a judgment dc bonis testator is, when it should

havo been de bonis propriis. Hood, administrator of Bradford vs Link, 38.

2. It is not a clerical misprision to fail to execute the bond required by the statute,

on obtaining a decree for the sale of the lands of a non-resident, which may be
amended at a subsequent term. Calk \'s<, Francis' administrator, A2.

3. Suit against two abated as to one, and judgment entered against the defendant^

should be understood as against him only who was before the Court as defen-
dant. The use of the term defendants a clerical misprii>ion and amendable,
McGinley va Mcljavghlin, 303.
See Amendvuntj 1.

Vol. II. 68

638 INDEX.

COMMISSIONERS IN CHANCERY.

1. Commissioner in Chancery having ascertained and reported facU as directed
cannot afterwards take up the subject and make a new report, his poiiver ceases
on making his first report Oden*8 txecutara vs JhuVa adnCr. and, others j 45.

COMMONWEALTH'S RIGHTS.

See Executor and Administrator, 9, 10, 11, 12.

COMMISSIONERS SALES.

1. The attendance of complainants counsel at commissioner's sales, is presumed

to be, as is his duty when he attends, to see that the sale is conducted fairly,
and so far as he acts it must be to effect that purpose. Buaey vs Hardin, ^c 412

2. Where counsel of complainant attend commissioner's sales, not for the puipoee

of aiding in its fair effectuation, but for the purpose of bidding, and becomes
the purchaser, it presents such a semblance of unfairness as should induce the
Chancellor to set aside the sale, where there was great inadequacy of price.
Ibid, 413.

3. When the counsel of complainant at commissioner's sale, becomes the purcha-

ser, knowing that the property offered was all that could be had to satisfy the
decree, and is sold for less than a 10th of its value, and sale made within a
few feet of the court house door, in which there were many persons, many
others in the streets, only ten or twelve immediately present, no loud proclama.
tion to call those at a distance, all circumstances showing that the commb-
sioner did not make a fair cflbrt to procure the best price, and his conduct ac-
quiesced in by the counsel, the sale should be set aside. Ibid, 413.

4. In such cases it is no reason for refusing to set aside the sale, that the purchasing

counsel has, subsequently to the sale, agreed to satisfy the decree in favor of
his client, to sustain his purchase. Ibid, 415.

5. Commissioner is not excused by the conduct of a defendant in the suit In for-

bidding his sale, in not using his best efforts to procure the best price for the
article sold. Ibid, 416.

6. Great inadequacy of price and a purchase by complainant's counsel have sep-

arately been noticed by the Chancellor, as causes for scrutinizing and setting
aside sales made by commissioners under decrees. The latter alone has some-
times been considered sufficient as * 'against the policy of the law. ' ' lUd, 408.

7. Slight additional circumstances, where there is great inadequacy of price, wiU

induce the Chancellor to set aside a sale by commissioner, where the com-
plainant's counsel has been the purchaser. Ibid, 410.

8. The practice in England where there was great inadequacy of price. Ibid, 411.

9. The highest bidder at commissioner's sales, does not, as in cases of sales iin*^CT

execution, acquire any independent right to have the purchase completed, but
is only a prefened bidder for the purchase, subject to the confirmation of the
Chancellor. Ibid, 411.

COHABITATION.

1. Cohabitation by white woman and her slave, will not authorize the presumption

of a marriage. Armstrong vs Hodges et ah 69.

2. Between a white woman and negro man will not authorize the presumption of

their marriage. Ibid, 70.
See Presumption, 1.

INDEX. 539

CONSIGNMENT.

1. The holder of an order for a portion of the proceeds of a consignment, i3 not au-
thorized to control the consignee in the disposition of the consignment, nor ie
he responsible for failing to do so. Philips, Reyriolds ^ Co, vs Barkaroux, 90.

CONFESSION.

See Evidence, 10.

CONFESSIONS AND AVOIDANCE.

^ Matters of avoidance must be proved. Batchelor vs Hickman et ah IS.

CONFESSION OF JUDGMENT.

1. A confession of judgment should be understood as a confession of judgment for
the amount specified on the note, subject to such credits as are then endorsed .
on the note. Batchelor vs Hickman et al, 1 7.

CONSIDERATION.

1. The seller of a bill of exchange, without fraud, who is neithei drawer or en-

dorser, is not responsible, except for failure of consideration, arising from non-
acceptance 01 non-payment from the insolvency of the drawer or endorser, and
no recovery can be had against such seller without ali^ation and proof to that
effect Johnaosn vs Welly if Alexander ^ 122.

2. In covenant, it is not competent for a defendant without any aU^ation of fraud

or mistake, to aver a different consideration for the covenant than that set forth
on its face. Logan, ^c. Turnpike Road Company vs Pettit, 428.
See Assignee, 2.

CONSTITUTIONAL LAW.

See Legislative power, 1,2,3.

CONSTRUCTION.

1. In the construction of writings, intention of the parties is the governing phnci-
pie, and when the terms used are ambiguous, it is competent to look to the
state and condition of the parties, their probable motives and objects, and the
contemporaneous exposition of the parties; not, however, doing violence to the
terms of the instrument. Thompson vs Thompson, 166.
See Wills.

CONTRACTS.

See Accord and satisfaction, 1.

CONTRIBUTION AMONG SURETIES.
See Sureties, 4, 5.

CONVEYANCES.

1. A conveyance of a feme covert of her inheritable interest in land in Kentucky,
does not pass by her acknowledgment and privy examination before two Jus-
tices of the Peace, uliless they acted by authority of a commission from the
County Court where the land lay, and that commission be returned and the
deed, commission and certificate recorded in the county where the land was
situated. Qray and wife vs Pattern, 13.

010 INDEX.

CONVEYANCES-— Cowfinii^fl'.

2. And this Court will not presume that such commission issued and had been lost,

without some allegation and citcumslances to warrant such presumption, the
deed and certificate appearing. Ibid, 14.

3. The 11th section of the statute of 1831 does not, aaer the lapse of 7 yeaxs, give

to a defective relinquishment the effect of a legal bar to a suit in ejectment,
by the grantor or his heir. Hid, 16.

4. A decree for a conveyance against heirs, some of whom only are served with pro-

cess, passes the title, upon the making a deed, as to those only who were served
with process. Downing' s heirs vs Collins et ah 95.
See Evidence. Decree,!. Femes covert, I, 2.

COPARCENERS.

1. One coparcener dispossessing another on a finding in favor of the latter, should
not have restitution of the entire possession, but only of his joint possecssion-
''RobeTlson et al. vs Robertson et al. 238.

CORPORATIONS.

1. The corporation of Louisville have no power to levy a tax on coal, Ac. landed

at the wharf, for revenue purposes, but only to an extent sufficient to defray
charges of inspection and measurement, when required. Chllins vs T%e City
of Louisville, 137.

2. The power granted by the charter of the City of Louisville does not confer on the

Mayor and Council the power to levy a specific tax on coal, Ac. or the vendor
thereof, for revenue purposes. Ibid, 139.

3. The general power in the charter of the City of Louisville to tax peraaiial estate,

does not embrace coal, wood, &c. bought for consumption in Louisville; nor is
coal in a boat at the wharf subject to a specific tax, except to pay for admeas-
urement, &c. Ibid, 140.

4. l^e Legislature has the power to pass a law authorizing the Mayor and Ckxmcil

of Louisville to pass ordinances, that the owners of lots on any square in said
City, shall be taxed to make certain improvements in the streets binding on sach
squares. City of Louisville vs Hialt et al. 179.

5. Functionaries acting openly for the welfare of the local public, and under official

responsibility, should not be presumed to have acted illegally. JW, 180-1.

COSTS.

1. In Chancery costs arc properly adjudged in favor of one who had good grounds
for sueing at the institution of his suit, but who, by lapse of time and the falling
out of other events, not existing at the institution of the suit, is ultimately
unsuccess^. Philips, Reynolds 4* Co, vs Barbaroux, 90

COUNTY COURTS.

See Sheriff, 6.

COVENANTS.

1. Covenant acknowledging tlie receipt of 95000 to lay out in negroes, imports a
covenant to lay it out for covenantee. Craddock vs Hundley, 113.
See Consideration 1. Accord and satisfaction, 1.

CREDITORS AND PURCHASERS.

See Frauds, passim.

INKEX. 5/11

C:USTOM.

See EvidtiKt. ♦

DAMAGES.

1. Damages of 30 per cent, against officers for failing to return executions, should

be calculated on the amount of the execution on the day the liability was in-
curred. Partlov) V8 Lawson, 46.

2. Where the damages do not appear to be greater than the assignment of breaches

and evedence warrant, the verdict should not be disturbed on account of alledg-
ed excess. Craddock vs Hundley, 114.

3. It is competent to offer evidence in mitigation of damages, though defendant

may have justified and failed to sustain that plea. Morehead ys Jones, 212.

4. Double damages cannot be awarded for distress made on tlie goods of a stranger

for rent; nor of the tenant, unless there be, in fact, no rent due. Ward vs
Beaty ^ Biggs, 260.
6. In covenant for a breach of warranty that a Jack "was a good and sure foal
getter," damages equal to the full amount of the price paid for such Jack
may not be exiessive. Dicken vs Williams et al. 374.
Sec Fraud,

DECREES.

1. Decrees for the conveyance of land do not pass the title unless a conveyance be

actually made. Downing* s heirs vs Collins et al, 97.

2. Decree for alimony may be changed by the Chancellor and the allowance in-

creased or diminished, as the circumstances of the parties may require. Lock-
ridge y^ Lockridge, 256.
See Alimony, 1, 2, 3, 4, 5.

DEED.

1. A deed in which the feme covert's relinquishment of her right of inheritance is

taken and certified by two Justices of the Peace, will not pass the title of the
feme unless the Justices acted under the authority of a commission from the
County Court of the county where the land lay, and such commission be re-
turned there and recorded with the deed and certificate. Oray and wife vs
Patton, 14.

2. The law will not presume a deed from the elder patentee to one who has been in

possession 20 years, unless there be some proof of an existing obligation to con-
vey. Oriffith vs Dicken, 22.

3. A deed of conveyance from several grantors, and executed by part before th^

champerty act of 1824 took effect, is good, and effectual to pass the right of all
' by whom it was so executed. Ibid, 23.

4. Any alteration in a deed, whether material or immaterial, if made by one party

to the deed without authority of the other, vitiates the deed. The same princi-
ple applies to bills of exchange. Johnson vs Bank United States, 310.
See Conveyances, passim. Evidence, 18, 19.

DREDS OF MARSHALLS.

See Evidence, 11.

DEEDS OF TRUST.

See Trusts and Trustees,

M2 INDEX.

DELIVERY BONDS.

1. Whenever the sheriff may rightfully take a delivery bond, and does so, the proj*-

erty levied on is released, and cannot be rc-taken without a new execution on
the forthcoming bond — Argu. • Richardson 6f Letcher vs Bartley et al. 329.

2. Where an execution is endorsed that "no security of any kind is to be takeaa,"

the officer has no right to take a delivery bond, and if taken, it cannot be made
the basis of an execution. Ibid, 329.

3. Qu. Can a sheriff, after having levied a fi, fa. and taken a delivery bond for the

property levied on, make a new levy before disposi9g of the first, or if he may
do 80, can he make a new levy of the same execution on the property first
levied on whilst it is in the hands of the surety in the delivery bond, placed
there to be delivered up, and still hold up the first delivery bond and return it
forfeited. Chancellor vd Vanhook 4* Brooking, 449.

4. In such case, though the property were not delivered under the first delivery bond,

at the precise moment appointed for its delivery, yet if it be delivered in time
to be sold with equal advantage to the creditor, it should be regarded as a com-
pliance. Ibid, 449.
See Equity and equitable jurisdiction, 11, 12.

DEMANDANT.

See Writ of wright.

DEPOSITIONS.

1. Depositions wholly in the hand writing of the party using them, is not, per se, a
good objection to them. The practice, however, of counsel writing depositions,
should be rebuked and not indulged, unless both parties be present and consent.
McQinley vs McLaughlin, 309.
See Notice, 3.

DEVISEES.

' See Evidence, 1 3.

DEVISES;

1. A devise of land to the wife *'to dispose of as she may think best whilst she sur-

vived, "*and also, "that whatever disposition she might make of it at her death
should be duly and strictly attended to and stand good in law,' ' imports a devise
of the absolute title in fee, and her deed passes the title. . Moore vs Webb, 283.

2. A devise to a widow during life or widowhood, is a HmitaHon expressive of the

duration of the estate, and not a condition, precedent or subsequent. Coppage
\^ Alexander's h^rs, 316.

DISSEIZIN.

1. Disseizin of things corporeal must be by actual entry and dispossession. An
entry upon one who is in possession, but temporarily absent, does not amount
to a disseizin in fact, without he who is entered upon elects to be disseized.
Robertson et al. vs Robertson et al, 238.

DISTRESS.

1. The right to distrain for rent since the statute of 1811, is not limited to the time

of the possession of the tenant. Lougee, ^. vs Colton, ^. 115.

2. The statute Marlbridge, 52, H. 3, 15, authorized distress on the demised premises

alone. 8 Anna, 14, authorized distress at any time within six months from the
end of the time, if/ lessors title and tenants possession still continue} this latter

INDEX. 543

DISTRESS^ Continued.

provision was re-enacted by the statute of Virginia of 1748, Stat. Law, 1554.
But by the statute of 1811, Stat. Law, 1356, distress may be made at any time
within six months after the expiration of the lease, and authorizes the issuing
of a distress warrant to any county in the Commonwealth, to which tenant
might have removed his effects. Ibidf 119.

DIVORCE.

1. Until! the statute of 1800, abandonment alone was not a sufficient cause for a

divorce, a menea et tkoro, and for alimony. Logan \'s Logans 144.

2. Husband leaving his dwelling professedly with the intention to remain away and

not living with his wife, and his returning again on her leaving, is abandonment,
statutory and actuaL Ibid, 145.

3. Though an original bill for alimony and divorce may be prematurely filed, yet if

grounds for alimony occur before the hearing, ailQ. the facts be set out in an
amended bill, and proved or not denied, the Court may give the appropriate
decree for complainant. Ibid, 148.

4. A contract between husband and wife for separation, being against public poli-

cy, should not be enforced by the Chancellor. Mc Crocklin-vs Mc Crocklin, 370.

5. Though the time of abandoimient may not have authorized any decree when the

original bill was filed, yet, if before the filing an amended bill has been suffi-
ciently long to authorize a decree, a mensa et tkoro, and for alimony, it may be
decreed. Ibid, 370.
See Alimony, 1.

DOMICIL.

1. The law of the testator's domicil regulates the disposition of his movable prop-
erty. Bamea* adm*r. vs Brashear et aJ. 382.

DOWER.

1. The husband devised to the wife her thirds of the land on which he resided, and

to the son the whole tract, the father and son residing on the tract together, the
son is possessed of the whole tract, subject to the dower interest wjien asserted,
and if not asserted and properly assigned during the life of the son, his widow,
the wife of the son, is dowable of the whole tract. Bobinaon vs Miller, 2S7-8.

2. An assignment of dower, though informally made, yet if acquiesced in for 20

years, and recognized by those interested, when of full age, will be upheld.
Bid, 290.

3. Dower is not forfeited by the commission of waste, so as to authorize a recovery

in ejectment by the leveisioner. Ibid, 290.
See Poaaeaaum.

EJECTMENT.

1. Where a declaration in ejectment is served on one or more tenants in posses-

sion, and a third person is admitted to defend, though the record show no priv-
ity between such person and those in possession, and though the judgment
entered against such tenants be irregular for want of service of the common
order; yet the person so admitted to defend, cannot avail himself of any ad-
vantage of such error. Oray and wife vs Pation, 12.

2. Ejectment is not barred by the lapse of seven years either as to vendor or his

heir, who has made a defective relinquishment of an inheritance. Gray and
wife sn Pation f 16.

iJl'l INDEX.

EJECTMENT-Co7i/i«i/cc/.

3. Tp instruct the jury that plaintiff in ejectment ought not to recover on a doukjej

title, nothing farther saying, is misleading and improper. The jury hare
right in ejectment as in other cases to weigh probabilities and solve doubts as
to matters of fact Qrijfflth vs Dicken, 24.

4. The lessors of plaintiflf in ejectment may be required to give security foi cosU

where they are non-residents. But after a defendant has appeared and plead
to the merits, or appears and asks leave to be admitted defendant to defend
upon the common terms of pleading to the merits, he should not be allowed to
plead in abatement the lack of bond for costs, and thereby violate his agree-
ment to rely on title only. Tlbbs heirs vs Clarkson, 34.
6. Lessors of plaintiff in ejectment, prosecuting writ of error to the Court of Ap-
peals, will be required to give bond for costs. Hudgens et al vs Jordan^ 4i

6. Ejectment may be maintained against the mortgagor, by the purchase of bis

equity of redemption under execution, having a deed from the Shenff. Ikf.
tin vs SheltoUy 63.

7. Lessors of the plaintiff who claim the possession for their own use and benefit,

must have the right of possession at the time of trial. Downing* s hdnYi Col*
tins et al, 97.

8. Defendants in ejectment for Military Lands West of the Tennessee who rdy

on plaintiff's patents being void because the surveys vary from the entry, muat
make such variance appear clearly , satisfactorily and cojiclusivelyj and the
extent thereof. Ray vs Woods, 222.

9. Though a defendant in ejectment may have entered as lessee of the plaintiff's

lessor, he is not estopped to show that plaintiff's lessor had aliened the land,
and that allegiance was due to another. Gregory's h*s. \s Crabb's A's. 255.

10. Judgment in ejectment determines the right of possession, but does not au-
thorize the forcible entry of lessor of the plaintiff without the process and offi-
cer of the law, and a forcible entry made without the process and officer is
unlawful, and possession will be restored to the person dispossessed. Dk**
vs Lee, 300.

11. A successful plaintiff in ejectment is entitled to recover, not only what of Ite
premises may have been in possession of the defendant at the institution ot
the suit, but for any extension of possession within plaintiff's claim duiin^
the pendency of the litigation. Taylor vs Cox, 436.

1ENTRIES.

1. All entries for land which were made and authorized by law to be made prior to
the statute of 1815, Slat. Law, 1022 sec. 10, for quieting litigation, and all
titles founded on surveys thoreafter made, are superior to any surveys made on
Kentucky Land Warrants, though the entries may bo vague, and though the
surveys may not confonn to the entries. Hardin vs Cain ct al. 56.
See Surveys,

EQUITY AND EQUITABLE JURISDICTION.

1. The same equity once made the ground for an injunction and adjudicated upoDi

cannot a second time be made the ground of an injunction; but if tbcinjunf
tion in the first case be only discharged, not dissolved, complainant may pwp-
erly make it the ground of a second injunction. Clark vs Young dal, ^

2. Equity will require a mortgagee to account for the value of mortgaged sla^*^

whilst in his possession, and the amount for which they were hired to otn*^
by hini up to tlie rendering a final decree. Woodicard vs Fitzpatrick, 61.

INDEX. 545

EQUITY AND EQUITABLE JURISDICTION— CaBit»uaf.

3. Couits of equity look not to the form but to the subsrtance of things, not to the

manner but to the end to be attained. Thompson vs Thomp6on, 174.

4. Nor will they give relief beyond that asked and sustained by proof. Ilnd, 174.

5. Nor will the Chancellor wrest from the hands of a trustee the execution of a

trust confided to him and place it in the hands of another, unless for fraud ,
negligence of trust duties, or wilful breach of trust. Ibid, 176.

6. Courts of Chancery in Kentucky have no authority to decree a sale of any por-

tion of the estate of a lunatic to pay his debts; and the committee of a luna-
tic has no interest in the property; he is merely curator. Berry vs Sogers, 308.

7. By the common law the Chancellor had no jurisdiction to assess damages for a

breach of covenant or for a tort, or even to establish a controverted debt where
a lunatic was a party; and so the law remains in Kentucky. Ibid, 309.

8. The Chancellor has jurisdiction to decree partition between devisees of parts

of an entire tract of land, though their titles may be legal, Haggin vs Hag-
gin, 318.

9. And to decree restitution of an estate held in trust, to the devisees «/ the cestui

que trust. Ibid, 319.

10. The Chancellor has full power, either with or without the intervention of a
jury, to award payment of all neccijsary and proper expenses incuned in the
safe keeping and maintenance of property taken into the custody of the law
by his order, and where the proceeding is dismissed by agreement, the com-
plainant at whose instance the proceeding was had is responsible for the ex-
penses. Blevina 4* Ckiv^ns vs Sympson, dep. sheriff, 464.

11. Where the suit is at an end before such order is made, it is most regular to
proceed by rule upon the responsible party; but if he appear, join issue and
make defence without any application for a continuance, and a jury pass on
the amount of allowance, it cures the irregularity. Ibid, 464.

12. Where the surety in a delivery bond was prevented by accident frcmi delivering
the property at the hour appointed for its delivery, and the Sheriff then made
another levy of the same execution on the same property, took a new delivery
bond under which tlie property was delivered and sold in satisfaction of the
execution, the Chancellor rclie\'ed the surety against the forfeiture of the
first delivery bond. Chancellor vs Vajihook 4* Brooking, 449.

13. The assignee of a lien for ten years, with the privilege of then taking the
property leased at a stipulated price, made considerable improvements there-
on, indicating an intention to become the owner, the lessor died, some of the
heira infants and some non-residents, the adm'r. refused to receive the consid-
eration, brought suit in twenty-one days from the expiration of the lease; these
facts show no forfeiture of the right to keep the property at the price stipula-
ted. Page vs Hughes et al. 445.

See Injunction.
See Delivery Bonds.

EQUITY OF REDEMPTION.

Sec Execution, 1.
See Ejectment, 6.

ERRORS -ASSIGNMENT OF.

1. On a general assignment of error in matter of account long and complicated;
this Court will not examine the accounts without their attention is directed by
counsel to some particular error. Clark, ^. vs Bell, ^c, 2.

Vol. II. 69

646 INDEX.

ERROR.

See Writs of Error.

ESCHEATS

1. Are the legal fruits of the ancient doctrines of feudal tenure, and are applica-
ble to immovable property alone. The Commonwealth vs BlajUon's Sx^otm, ct
al 394.
See Slaves, 2.

ESTOPPEL.

1. One who may have entered as tenant is not estopped to show that since his en.

try as tenant, his landlord had aliened to another to whom fealty was due:
Gregory's heirs vs Crah*s TieirSf 235. '

2. A defendant in an execution, giving up laud to be sold in satisfaction thereof, is

estopped to deny the right of possession to the purchaser holding the Sheriff's
deed, on the ground that his equitable title was not subject to sala Reid tb
Heasley, 256.

8. D. having an elder entry, survey and grant, conveys, after another and jonioi
entry, &c. is made in the name of D. to interfere with the first— held that those
claiming under the junior entry are estopped, as D. himself would be, to say
that the first entry patented and conveyed by D. was not legally surveyed ac-
cording to entry. Johnston vs Breckenridge et al. 302.

4. A purchaser from one of two persons, who afterwards have a controversy in re-
lation to the title of property, is not estopped by a decision between such par-
ties to show his own right thereto. Sutor vs Miles j 491. "
See Sheriff 's sale of Landj 3.

ESTRAYS.

1. The taker up of an estray has a lien on the property for the fees, and reasona-
ble costs and charges of feeding, and cannot be divested of the possession un-
til such are paid. Chirabrant vs Vaughn, 328.

EVIDENCE.

1. Wills proved and recorded in Viiginia before the sepc^ration of Kentucky, copied

and properly certified from that State, are evidence here and valid to pass
lands lying in Kentucky, under the statute of 1797. Oray and wife vs FM-
ion, 13.

2. Evidence of a license to sell clocks cannot be required of a clock pedlar or those

saeing on notes given for the sale of clocks, without some proof being fiist
made to raise the presumption that he had no license. Brown vs Young, 28.

3. Pazol proof where it does not contradict the policy, is competent to show the

extent of the interest intended to be insured by the policy. Franklin Jns.
Company vs Drake, 62.

4. It is competent to prove the existence of a usage in a city — Louisville — for

owners of lots adjacent to those on which buildings are erecting, to pay for
half the partition wall in assumpsit, for half the value of erecting such wall,
as well as the knowledge of the defendant of the intention to build the vail
by plaintiffs, and the existence of such custom, not as creating ah obligation
to pay for such wall, but as conducing to show his assumpsit to pay for the
half of the wall. Rowland, ^c. vs Hanna,'129.

5. In an action for libel, plaintiff set out and read certain selected passages from

a pamphlet as the libellous matter: it is competent for defendant to read, in

INDEX. 647

EVIDENCE— Continued.

explanation of the parts thiu set out and read, other part3 of the same entire
publication, as explanatory of the subject matter, occasiwi and motive of the
publication in mitigation of damages. Morehcad vs Jones, 211.
6. Though a defendant in slander may plead jastification, yet if he fail in sustain-
ing such plea, he may offer evidence in mitigation of damages, as though jus-
tification had not been plead. Ibid, 212.

6. Exhibits read in the Court below without objection, will be here taken and con":

aidered as part of the record. Helnif dfc. \8 Hardin, 233.

7. Objections to exhibits, though properly made in the Court below, will be una-

vailing if the facts they conduce to prove be admitted by the answer of the
party objecting. Ibid, 233.

8. To show a conveyance fraudulent, it is competent to prove that before the con-

veyance was made, grantor acknowledged himself considerably indebted, and
said he had conveyed his property to his children — though lie had not then in
fact done so — and that grantor remaining in possession after the conveyance,
renting, leasing and hiring the property as his own. Lewis vs Love's k's, 246.

10. When the confessions of a party are used as evidence against him, all that he
said at the time of the confession on the same subject is competent, whether
detailed on the examination in chief or elicited on cross examination. Thy-
hr's heirs vs Whiting^ s heirs.

11. Deeds made by Marshals for lands sold to satisfy the direct taxes due in 1813,
to the U. States, is not prima facie evidence that the pre-requisites of the law,
of advertising, &c. had been performed, and the party relying on such deed
is bound to prove that such pre-requisites as authorized a sale and conveyance
had been performed. Ibid, 272.

12. Settlements made between Sheriff and the County Court, unless made by
members of the County Court, according to the statute of 1793, is not of itself
evidence against the Sheriff on motion. Mize, ^c. vs Nolajid, Atto. ^c 295.

See Wills. Sheriffs.

13. The declaration of one of several devisees is admissible evidence against the
wiU, not as a declaration or admission by all, but as a 'circumstance entitled
to some influence, and to which the tribunal trying the question <tf will or no
will should give such effect, under all the circumstances of the case, a3 such
a fact intrinsically merits. Sogers vs Rogers, 325.

1 4. A witness whose debt would be extinguished by a recovery in the suit is not
competent for plaintiff. Richardson ^ Letcher vs Bartley et ah 333.

15. The declaration of the grantor, after the delivery of the conveyance, are not
competent to prove the conveyance fraudulent Christopher vs Covington and
Smithy 359.

16. Nor is it competent to prove that the grantor had previously been guilty of mak-
ing a fraudulent conveyance — Argu, Ibid, 359.

17. The acts of a Sheriff, even ailer a suit against him for illegally taking prop-
erty under colour of an execution, are competent against them to show the ori-
ginal intention in taking. Ibid^ 359.

18. In covenant for breach of warranty, that a Jack was a good and sure foal get-
ter, made in January, it is competent to prove that the Jack was impotent du-
ring the whole succeeding season. Dickens vs Williams et aL 374.

19. The facts that a lessor knew that the lessee was a bawd, that she did use his
house with his knowledge and apparent concuncnce, as a public house of pros-
titution, and that he derived ample profit fgx its occupancy, may authorize a

648 INDEX.

KVTDENCR— rvj/i/i»urr/

jury to fmd the fact, that it was the purpose of the lessor that the tenement
should be used as a bawdy house, and that he was a co-operator in the un-
lawful use made by the lesse. Ross vs Commonwealth^ 419.

20. A power of attorney purporting to have been executed in 1801, authorizing a
conTeyance of land, and a deed purporting to be made in puiBuance thereof,
and a fee bill of the Clerk of the proper Court, dated in 1803, purporting to be
for the fee for recording the power and writing the deed, are competent evi-
dence in 1833, because of their antiquity, though the power of attorney was
not recorded nor otherwise sufficiently proved when a possession had berai
held in conformity to such documents of title. Taylor vs Cox, 434.

21. The record of a suit and any fact appearing therein is not evidence against
one not a paay thereto — nor is a copy from' an official copy competent evi-
dence. Fenwick* 8 adm' r. ys Mac ej/j ill.

See Parol Evidence^ 1, 2, 3.

EXECUTIONS.

1. Executions cannot be levied on the equity of redemption in property exempted

by law from execution, though the debtor may have mortgaged it to another
creditor; neither the property nor the equity of redemption becomes more liable
by being mortgaged. CoUelt vs Jo7im ^ Hall, 19.

2. Execution, though for a greater sum than the judgment authorized, is an authori-

ty to the sheriff to sell to its satisfaction, and the sale is valid unless it be
quashed. Tipton vs Orubbs, 83.

3. An execution issued to a dilTerent county from that in which the judgment is ob-

tained or defendant resides, is so far regular that it cannot be questioned col-
laterally in a contest for property sold by sherilT, under such execution, and
especially where issue is formed on the right of property merely, in the defen-
dant in the execution. RingosYs Ward, 128.

4. An execution, though irregularly issued, confers authority on the sheriff to sell,

and it is not void absolutely, nor is he bound to look to the regularity of the
judgment, and the steps which the law requires, as directory to the clerk

5. On an execution endorsed that no security of any kind is to bo taken, the oflicer

has no right to take a delivery bond, and if taken, it cannot be made the basis
of an execution. Richardson ^ Letcher vs Bartley et al. 329.

6. Execution cannot issue on a delivery bond taken by an officer for property taken

under an execution, endorsed, ' 'no security of any kind to be taken. * * Und, 329.

7. The purchase of property by the plaintiff's attorney, under execution, and the

execution ordered by him to be returned satisfied, the judgment is discharged,
and ahy want of authority is to be adjusted between plaintiff, his attorney and
sheriff. Duvallv^ Waggcner, 184.

EXECUTORS AND ADMINISTRATORS.

1. Although in actions founded on the acts of executois and administiatais, the
writ and declaration style the defendant administrator, and the words "adm'i-
as af 'd.*' are used throughout the declaration, wherever he is named, yet they
are to be taken as description of the person, and do not decisively show an in-
tention to charge the defendant in his fiduciary character. Hood, administrator
of Bradford vs Link, 37.

3< Wherever a defendant is charged with a personal act as a fraud, the more fact
of styling him administrator does not negative his peisoaaL liability. Ibid, 38

INDEX. 549

3. Can an estate bo made liable for the fraud of the administrator in disposing of

the assets — Qu. Ibidj 38.

4. An executor may properly apply funds of the estate to remove incumbrances cre-

ated by testator in his life time, on lanrls specifically devised, but may not pur.
chase incumbrances for his own use. An executor using the funds of the estate
to purchase incumbrances on lands devised by his testator, will be but a trustee
for the devisee. Qoodloe vs Rodcs, dfc. 87.

6. The executor or administrator of one jointly bound with another, may be sued
separately during the lifetime of the other joint obligor; such is the effect of the
statute of 1797, Stat. Law, 318. Maxey vs AveriWs executorSf 107.

6. The executor is vested, by law, with all the testator's chattels, for the payment

of debts and legacies; and no action at law can be brought for the recovery of
any specific or pecuniary legacy until the executor has waived his prior right
thereto, and thereby pa.ssed the legal title to the legatee. Commonwealth for
Tbulman and ux vs Heaver en et al, 126.

7. Executors are liable to legatees at common law, for violating the express cove-

nants in his executorial bond, to pay legacies, and on such bond damages may
be recovered equal to the legacies, so by statute. Ibidf 126.

8. Administrators may make a valid allotment of the slaves of their intestate m the

absence of a part of the disiribiitees, and thereby invest such to whom a por-
tion is allotted, with the legal title thereto. And a distribution and allotment
thus made, cannot be cancelled so as to reinvest the administrator with the
legal title, if the possession shall be held at the time of feuch attempted rescis-
sion, adversely by a third person. Waggener vs Hardin, 155.

9. The right to administration is statutory alone, originally exercised by the king,

as parens pratriae, through his County Courts; until 31 Ed. Ill, required their
appointment by the ordinary, and made them accountable as executors.
Ccmmonwealtk vs Blanton's executors et al. 396.

10. The administrator in England never acquired any beneficial title to an intes-
tate's effects in consequence of a failure of distributees. He was only a trus.
tee, and held, in such case, for the benefit of the king, whose right was in vir-
tue of his prerogative. Ihid, 296-7.

11. Executors in England took the unbequeathed surplus, where there was no dis-
tributee, under a presumption that it was the intention of the testator that he
should have it; when this presumption was removed by a bequest to the execu-
tor, the residuum belonged to the king, as trustee for his subjects. Ibid, 397.

12. The administrator of one dying without distributees, are liable to the Common-
wealth for the property or the value thereof, which comes to their hands, and
the sureties arc also liable to the same extent without regard to lapse of time.
Ibidy 400.

13. The hire and increase of slaves in the possession of an administrator, are assets
in his hands for administration, as much so as the slaves themselves, he is an
accredited trustee and bound to make hire, and account for both hire and in-
creasa Barnett, administrator of Jhwles vs Stephens* administrator, 446.

14. Where an administrator files a bill and enjoins the custody of personal property,
though the property did once belong to their intestate, yet if the necessity for
the proceeding arise from his own act, he is individually responsible for the ex-
penses incident thereto. Blerins ^ Cavins vs Sympson, V. 8. 464.

See Legatees, 1.

550 INDEX.

EXEMPTED PROPERTY.

1. Exempted property mortgaged by tlie holder, does not, by being mortgaged, be-
come liable to execution anymore than if it were not mortgaged. CoUettv^
Jonea if Hall, 19.
See Execution, 1.

% EXHIBITS,

1. Exhibits improperly admitted in a Chancery cause, not available as error in this
Court, if the answer of the party objecting admit the facts which they ccndoce
to prove. Helm, ^, vs Hardin, 223.
See Evidence, 7, 8.

FEMES COVERT.

1. Under the .statute of Virginia of 1785, and that of Kentucky of 1791, feauf

covert could not efTectually pass their inheritable interest in lands in Kentacky,
by an acknowledgment before Ju&tices of the Peace, unless the Justices taking
such acknowledgment acted under a commission from the County Court where
the land lay, which commission must have been returned to the of&ce where
the land lay, and recorded with the deed. Qray and wife vs Patton, 13.

2. A commission is necessary to authorize two Justices of the Peace to take the

relinquishment of a/smc covert to an inheritance in land, and to make such re-
linquishment effectual the commission must be returned to the clerk's office of

« the county where the land lies and there recorded with the deed and certificate.
Ibid, 14.

See Baron and feme, passim.

FORCIBLE ENTRY AND DETAINER.

1. Forcible entry and detainer against two, the jury find one guilty of a forcible

entry and the other guilty of a forcible detainer, as to the latter the verdict is
technically though not essentially, erroneous, without proof of actual force in
detaining. Robertson et al. vs Robertson et al. 238.

2. One coparcener dispossessing another, should not, on a finding in favor of the

latter, be restored to the entire possession, but only to his joint possession.
IMd, 238.

3. A judgment in ejectment in favor of one, will not justify his making an entiy

on the premises with force, but such forcible entry is within the terms of the
statute prohibiting forcible entries, and posfession may be r^ained under that
statute, by the person on whom the entry is made. Davis vs Lee, 300.

FORFEITURE OF ESTATES.

See Dower, 3.
FRAUDS— STATUTE OF.

1. Parol contracts for the sale of land are not void, nor will the Chancellor, at the

instance of the vendee, dissolve such contracts, where vendor has not been goxlty
of any shuffling prevarication or injurious delay, and tenders a c<unpliance be-
fore the hearing. • Craig vs Prather, 12.

2. But if vendor does not tender a compliance at the hearing, the contract ahoald

be rescinded. Ibid, 12.

FRAUD.

1. Parol proof cannot be admitted for the purpose of resisting the specific execution
of a contract to convey land, in the absence of either allegation or proof of
fratid. Langdon et ul vs Woolfolk et al. 105.

INDEX. 551

FRAUD— Continued.

2. A survey of upwards of 1000 acres on a certificate for only 400 acres, should,

prima facie, be considered fraudulent. Gray vs Qray'a hein, 201.

3. The possession of vendor of personal property after the execution of an absolute

bill of sale therefor is, per ae, fraudulent against subsequent creditors as well as
subsequent purchasers. Woodrow vs Davis et al. 298.

4. Where mortgagee, in a bill filed against mortgagor and mortgagee, to compel

a foreclosure, fails to exhibit the claims and liabilities intended to be secured
by the mortgage, and shows an unwillingness to settle, adjust, and dis-
close the balances, the mortgage will be held only colorable. Bowles et al.
vs Schoenberger, 373.

5. A vendor of a horse, knowing it to be diseased with a contagious distemper, and

failing to disclose the fact to the vendee, b responsible for the injury to or loss
of other horses of vendee to which the distemper is communicated. Faria vs
Lewie, 376.

6. Where the allegations and proof do not authorize a conclusion of fraud in a di-

vision, it is very difficult to make out such fraud by the mere opinion of wit-
nesses, that the division was unequal, as will authorize the setting aside sudh
division. Hancock vs Craddock, 389.
See Contracts, 5.

FRAUDULENT CONVEYANCES.

1. If a debtor, under pretext of securing some, even all his creditors, make a con-

veyance in trust, by which, without the concurrence of the creditoxs> whose
debts are proposed to be secured, he intends to protect himself in the enjoy,
ment of his property, such deed is undoubtedly fraudulent Byrd vs Brad-
ley, 239.

2. And a deed made to a portion of creditors, even if assented to by the preferred

creditors, would be alike fraudulent, if its intent and efiect be to protect the
debtor in the enjoyment of the property. Ibid, 239.

3. The assent of preferred creditors in a deed may, in general, be presumed in (he

absence of all countervailing circumstances. Ibid, 239.

4. The ignorance of prefened creditois, of the making a deed, the length of time

they remained so; their assent or dissent when informed; the activity or inac-
tivity of the trustee; his taking control of the property for the purpose of the
trust, or its being left in the enjoyment of the debtor, and the length of tim^ it
remained there, are all circumstances entitled to consideration in determining
the character of the deed. Ibid, 239.
6. The assent of prefened creditors being presumed, the fact that a debtor is permit-
ted to remain in possession of personal property three or four months, is not, ipso
facto, evidence of a fraudulent intent Ibid, 240.

6. A conveyance made to delay, hinder and obstruct creditors, is void as to subse-

quent as well as precedent creditors. Lewis vs Love's heirs, 346.

7. A deed of trust of all the debtors property, including stock and a growing crop,

which provides for a sale by the trustee for the benefit of all the creditors, after
the expiration of about three months, is not necessarily fraudulent, and if the
intention be to mature the crop and fatten the stock, is not, per se, fraudulent.
Christopher v^ Covington ^ Smith, 368.

8. For the debtor to remain in possession of the property conveyed intrust, is not,

;»er«e, fraudulent Ibid, 368.
0. The period of three months delay of a sale, professedly to mature a growing crop

562 INDEX.

FRAUDULENT CONVEYANCES— Continw erf.

and fatten slock, to sell for the benefit of creditors, is not, in itatlf, fraudulent
under the statute, it can only operate as some evidence of such an intent
Christopher vs Covington ^ Smith, 360.
10. It is the intention with which a conveyance is made that makes it fraudulent

Ibid, 360.
See Emdence, 9, 15, 16.

FRAUDS AND PERJURIES.

See Contracts, 1. Evidencs, 3.

GRANTS.

See Surveys, 1, 2.

GUARDIAN AD LITEM.

i. Notice to one, of his appointment as guardian ad litem, does not ib any availB-
ble sense, make those for whom he has been appointed defendants. "Die
record to bind infants must show that they were parties to the action In some
legal and effectual shape. Shaefer vs Gates and wife, 456.

2. The appointment of a guardian ad litem, to infants who are never served with

process, does not make them parties, and especially where such guardian does
not make his appearance by plea, or otherwise.show his acceptance of the ap-
pointment. Ibid, 455.

3. Should always be appointed and notified,, and plead unless the Court shall be

satisfied by such guardian that after diligent search he could find no useful
plea in the case. Ibid, 456.

HEAD-RIGHT LANDS.
See Entries, 1.

HUSBAND AND WIFE.
See Insurance.
See Baron and Feme, pasaim.

IMPROVEMENTS.

1. Amelioration should be allowed to a tmstec, and he made to account for rents.
Haggin vs Haggin, 321.
See Trusts and Trustees, 16.

INDICTMENT.

1. Charging the selling of spirituous liquors by retail, and permitting U to be drank

in the house of the seller is good, and though a pre^enUuent would lie an indict-
ment will also, in which the Court may assess the fine as upon a present-
ment Overshiner vs Commonwealth, 344.

2. The signing after the words "a true bill" by the foreman of the grand jury u

sufficient Ibid, 344.
S. An indictment charging the renting of a house to a notorious bawd, "to be kefit
as a bawdy house," and such keeping of it by her accordingly, imports that
in making the lease the lessor was influenced by the unlawful puxpose of ea.
couraging a nuisance. Ross vs CommonweaWi, 419.
See SlaveSf 3.

INDEX. 653 '

INFANTS.

1. The GhancelloT in protection of the lights of infante, will give eveiy reasona-
ble opportunity for a full investigation. Oden vs ThttTa adm*r. 4«. 46.
See Quardian ad litems 3.

INJUNCTION.

1. The same grounds of equity cannot be a second time relied on in a bill in
* chancery forii^function, where the first injunction has been regularly 4ftMo?vad,

otherwise where it is only discharged for neglect in prosecuting. Clark vs
Vfung et al 6&

2. Injunction though imprq>erly granted in the first instance, yet if it be suffer-

ed to stand until final hearing, when it appear that the ground for « perpetual
injunction is fully made out, it will be decreed. Ibid, 69.

See Equity and EquUdblt Jtsrisdictisn, 1.

INSANITY.

See Lunatic.

INSPECTIONS.
SeeSkres.

INSTRUCTIONS.

1. Instructions te a jury in ejectment, that the plaintiff cannot recover on a dcvbt-
ful title, nothing farther saying, is misleafUng and erroneous. The jury have»
in ejectment as in other cases, the right to weigh probabilities and solve doubts.
Griffith vs Dicken, 24.

INSURANCE.

1. The husband whose wife has title to real property as joint tenant with others,

and who hath had issue bom alive to the husband, has an insurable interest in
the improvements on such real property. Franklin Ingurunu Company vs
Drake, SO.

2. And in such case if the policy be forfeited, the husband has a right to recover to

the extent of the entire loss insured. Ibid, 60.

3. Insurance by several joint owners of property may be effected on their respec.

tive interests at different ofilces, notwithstanding a provision in each policy
*^ihat it akall he void in case any other insurance ie infected on the oame property
eoitiumt notice; such a provision construed to apply to a second insurance by the
same owner or part owner of his interest ibidf 60.
1. Insurance on property on which husband is tenant by the courtesy is valid, and
the husband has the right to the amount of the insurance, in case the policy is
forfeited. Ibid, 60.

INTEREST.

i. Interest on a trust fund, the profits of which are to be paid to cestui que trust,
should be paid annually, if not, interest to be mad^rincipal, and interest paid
thereon. Montjoy and toife vs Lashbrook et aL 262. '* -' ' ^

JOINT RIGHTS.

I. One joint owner of properly bucing for the destruction thereof, having a judg-
ment against him, csnnot aflenvards join with the other joint owner for the

Vol. 11. 70

554 INDEX.

JOINT RIGHTS— Continued.

reoovery of damages; and in such caae defendant may avail him&elf of the
judgnijent in bar against the one joint owner by plea in abatement, in bar, or
^ by motion for a non-suit. Brlzcndine and HatoHna vs Frankfort Bridge Com-

pany, 33.

2. One joint owner of property may recover for an injury to the same or the

destruction thereof by a third person, and where the general isque is pleaded*
has a right to a recovery proportionately to his interest If the recovery was
prevented by the error of the Court, and judgment in bar rendered, he cannot
aRerwaids unite in a joint action with other part owners — ^he is barred by the
judgment. Ihid, 33.

3. One joint owner of a chattel may recover his proportion of the value thereof,

though another part owner may have recovered, or sued for and failed to recov-
er the value of his interest, and judgment in bar be entered. Rid, 33.

JOINT TENANTS—

1. May effect separate insurances on their respective interests in the joint property

notwithstanding a provision in each policy, "that it shall be void in case any
other insurance is ^ected on the same property toithout notice. ' * Such a provision
construed to apply to a second insurance by the same owner or part owner of hU
interest. Franklin Ins. Co. vs Drake, 51.

2. A possession taken and held by one joint owner is the possession of all. If ta-

ken and held adversely to those who arc jointly interested, it enures to the ex-
clusive benefit of such possessor. Thylor vs Cor, 435.
See Insurance, 3.

JUDGMENTS.

See Void and Voidable, 1.

JURY FEE.

1. Although the statute of 1836-7, provides for the payment of the Jury fee by the
succes^ul party, yet it is not to be construed to give a right to tlie unsuccessfol
party to prosecute a writ of error or appeal until it is paid by some one and final
judgment be given. Gore vs PettU and Boas, 25.

JURISDICTION.

1. The remedy for failure to return several executions is several and exclusive, an<l
two or more liabilities cannot be united to give the Circuit Court jurisdiction.
PartUno el al vs Laioao?i, 46«

See Mortgagor and Mortgagee, 11, 12, 13.

See Justices of the Peace, 2.

JUSTICES OF THE PEACE—

1. Could not effectually take a relinquishment of the right of inheritance of a/em«

covert, inlands in Kentucky, under the statute of Viiginia of 1785 or that of
Kentucky of 1797, without a commission from the County Court of the county
where the lands lay, and that commission must be returned and recoided with
the deed and certificate. Gray and wife vs Patton, 14.

2. Justices of the Peace have no jurisdiction of suits founded on notes having cred-

its thereon, where the balance due is over $50, at the dale of the credit gix-en-
Hosklns vs Roberts, 263.

INDEX. 655

LANDLORD AND TENANT.

1. Tenant is estopped by his lease to deny his landlord's title, without proof of fraud

or mistake in the lease. Lively vs Ball, 63.

2. Tenant whose landlord has aliened to another, is not estopped to show that fact

in a proceeding against him in ejectment for ppssession. Gregory's heirs vs
Crab's heirs, 2S6,

3. The entry by the landlord upon the possession of his tenant, whose lease depends

on conditions which have not been \iolated, is a trespasser. McOee vs Oib-

son, 363.
See Rertt,
See Distress.
See Damages.

LAPSE OF TIME.

1. The ChancelloT will apply the lapse of five years— as a bar to a recovery for sur-

plus land conveyed — from the time when the mistake was or ought to have been
discovered. Enoin vs Ware etal. 65.

2. Where the proof warrants the presumption that vendor knew there was a sur-

plus in a tract of land conveyed, or as a reasonably vigilant man he ought to
have known it, more than five years before he files his biU for compensation
therefor, the Chancellor will not interfere. Ibid, 65.

3. Lapse of time does not apply as between mortgagor and mortgagee, where there

has been no adverse holding. Cook vs Colyer*sadm*r. 73.

4. A lapse of 21 days from the time a party who was lessee had to elect to pay for
A and become the purchaser of the ground of which he was lessee, not r^arded

as forfeiting the right to do so under contract, when a reasonable excuse was
given for such delay, viz; death of obligee, refusal of adm'r. to receive the con-
sideration, and non-residence of some and infancy others of the heirs. Page
vs Hughes et ah 442.

5. Lapse of time may cure irregularities in judicial proceedings, but not such as ap-

pear to have been void, where there is no suggestion of mutilation by lapse of
time. Shaefer vs Qates and wife, 457.

6. Time may authorize the presumption of an extraneous fact which the record does

not show, and which it was indispensable to the validity of the judgment that

the record should show. Bnd, 457.
See Rfuiiy and Equitable Jurisdiction, 11,12.
See Presumption,

LEGAL TITLE.

1. The interest of mortgagor in land sold under execution, and conveyed by the Sher-

iff, gives such legal title as will authorize the purchaser to maintain ejectment
therefor. Martin vs Shelton, 63.

2. L^al title to land does not pass by a decree therefor, without a conveyance in

form executed. Douming'aheirs vs ColUna et al. 97.
See Ejectment, 6.

LEGACIES.

1. Damages maybe recovered from executors and their sureties, by suit on their ex
ecutorial bond, equal to the legaci&s. ComUh. for Toulman et vx. \» Heaveren
etal. 126.
Sec Executors. Legatees.

666 INDEX.

LEGISLATIVE POWER.

1. This Court will not, upon a mere doubt of the power of the L(»gi&lature to pass a

law, declare it unconstitutional, they must be clearly satisfied that it is so.
CUy ui LoumHU ts WML et ah 17a

2. The L^pslature have the power to pass a law authorizing a majority of the own-

ers of lots on a square in Louisville, to decide that certain grading and im-
provements shall be done at the expense of the lot holders, or to aothorixe the
Mayor and Council by unanimous vote so to decide; and such is not an
unconstitutional exercise of power. Bnd^ 179.

3. It is the province of the Legislature to repeal or modify penal statntes, and

though the act be done against which the penalty is denounced, no judgment
be rendered after the repeal of the statute, and this is not an Executive but
a Legislative power. Commonwealth vs Jackwm, 402.

LEX LOCI CONTRACTUS^

1. Determines the legal obligation of a contract John»m vs Bank U. S. 310.

LIEN.

1. The commencement of a suit in Chancery after a return of nulla bona on an

execution on a judgment at law for the purpose of subjecting any debts^ &c. due
to the debtor, to the satisfaction of the judgment, and service of process ope-
rates as a lien on any debt due to the execution debtor sued, and where two
bills are filed with the same object the first has the preference. Robertaon vs
Stewart and Spring, 323.

LIBEL AND SLANDER.

t. In an action for libel, setting out certain paragraphs in a publication as libelous,
it is competent for defendant to read in explanation of the parts thus set out
and read by plaintiff, other parts of the same entire publication, as explanato-
ry of the subject matter, occasion and motive of the publisher, in mitigation
of damages. Morehead vs Jones, 211.

2. The defendant in such case should be tried by all that he has published at the

same time on the same subject, not dislocated selected passages. Ibid, 211.
See Evidence, 5, 6.

LIMITATION.

1. A limitation in a devise to a widow during her widowhood is not void though

there be no devise over. Coppage vs Alexander* a heirs, 314.

2. Suit for slaves held adversely to the wife at the time of her marriage in infancy,

must be brought within five years after she arrive of full age, and if she die
before that time, the infancy of her children cannot be lapped on her oover-
tare to save the remedy. Findley and vife vs faitersons executors and doo-
isses, 7S.

3. The statute of limitation cannot avail either the peison or his representatives

who obtained and holds possession of property as trustee, but from the time of
openly renouncing the trust and claiming adversely to the cestui pie inuL
Bohannon'sheirsi vs 8threshley*s ex'ors. 438.

4. One who takes possession of property tortiously which is in contest, from the

party who proves successful in the controversy, is not estopped by any decisioB
in the suit, to show his right to the property thus taken. Sutor vs Milos, 490.

INEEX. 557

LIMITATION— Continued.

& In such case the cause of action was not suspended by the lis pendens, and prop-
evty thus taken after five years adveise holding, cannot be recovered. Ibid, 491 .
See Equity, l, 2. Executors and Administrators, 12. Estates, 1. Assumpsit.
^eetment. Penal Actions.

US PENDENS.

1. A pniohase under a decree foreclosing a mortgage, occupies the attitude of the

mortgagee and acquires his title, and is not affected by a suit to which mort-
gagee is not party. Fenwici^sadm*r vs Macey, 470.

2. The doctrine of lis pendis applies to parties only, and those deriving title through

them after the lis pendens. Ibid, 470.

3. llie principle of lis pendens is this and this only: *'that a stranger who during

the pendency of a suit for property acquired from either of the parties to that
suit, the property thus in litigation shall not be pennitted to elude or controvert
the decision therein against the title of the party from whom he obtained the
property.*' Ibid, 456.

4. A purchaser from one of two persons, who afterwards have a controveisy involv-

ing the title to the property purchased, is not concluded by any decision be-
tween them. ^Sutor vs Miles, 491. ^

LOCAL AND TRANSITORY.
See Actions, 1, 2, 3.

LOUISVILLE.

See Mayor and Council, 1.

LUNATICS.

See Equity and Equitable Jurisdiction, 6, 7.

MARRUGB.

1. Marriage between a white woman and her slave will not be presumed from proof
' of cohabitation; such a connection is inconsistent with social order, public
policy and national sentiment, and void asagainst the policy of our local law.
Armstrong Ys Hodges etal. 70.

MASTER COMMISSIONER.

See Commissioner in Chancery, 1.

MAXIMS.

1. The maxim inpari delicto poiier est conditio defendenti, does not apply in cases

where the defending party himself first conceived the fraud, and for his own
benefit and by artifice induced the complaining party to concur. Cook vs Col-
yer's administrator, 72.

2. That which is void 0ft fnito in /nzciu temporisnon convalescit. Shae/er vs CkUes

and wife, 468.

MAYOR AND COUNCIL OP LOUISVILLE.

1. The mayor and councU of Louisville have no power to levy a tax on coal, &c.
landed at the wharf, for revenue purposes, but only to defray the expenses of in-
spection and measurement, ^iilien required. Collins \n City of Louisville, 137.

612 INDEX.

MERGER.

1. The execution of anoieinthe name of a simple contract debtor, by one who is
unauthorized to do so, docs not merge the simple contract debt. CaUc vs
Orear, 420.

MOTIONS.

1. The statute of 1836 constructively repeals all prior enactments imposing penal-

ties on constables for failing to return executions, and Justioes of the Peace
alone have jurisdiction in all cases therein specified, and right of appeal lies to
the Circuit Court where the amount exceeds £5. Parihw, 4^. vs Lawaoiif 46L

2. Judgments against sheriiTs, &c. for failure to return executions for more tlian SO

days, &c. should be for the amount of the execution^ on the day the liability
was complete and the per cent, thereon. Ibidf 46.
See Abatemtntf 2. Replevin b&nda. Sheriff.

MORTGAGED PROPERTY.

1. Property exempted from sale under execution, does not itself, or \h» debtor's

equity of redemption therein, become liable to le^^y and sale by being mort-
CoUeti vs Jones 4* ^all, 19.

2. In such case, to an action of trespltss for taking such property, the allegation thai

it was mortgaged by the defendant, &c. is immaterial and presents no good
defence. Ibid, 19.

MORTGAGES.

A mortgage is intended as a collateral security for the debt, and a coiut of equity
will give it no other eflect, nor enforce it for any other purpose, and for only so
much as is due at the date of the decree. Caufman vs Sayre, 205.
Mortgagee has three remedies :

1. To take possession of the mortgaged property and apply the profits to the extin-

guishment of the debt.

2. To sue in a court of common law, and enforce his judgment either by execution oc

by filing a bill and obtaining a decree for subjecting the mortgaged estate, by
sale, to the satisfaction of the judgment

3. By filing a bill in the first instance for foreclosing the equity of redemption and a

sale of the mortgaged property. Ibid. 206.
No decree can be rendered to sell to pay instahnents not due. Ibid, 206.

4. A decree for foreclosure of a mortgage, passes no new title to the mortgagee; it is

only a bar to the pre-existing equity of the mortgagor, and makes irredeemable
the title which before was redeemable. Fenvnck^a adm'r. vs Macey, 487.
6. And a purchaser under a decree of foreclosure acquires no new right of the mort-
gagee, he acquires only the right of the mortgagee, made absolute by the decree
of foreclosure. Ibid, 487.
See ExecitHdn, 1. Ejeetmenl; 1, 6.

MORTGAGOR AND MORTGAGEE.

1. Mortgagee cannot maintain replevin against a sherifi*, who, by virtue of an exe-

cution against mortgagor, takes mcirtgaged property out of the possessioD of his
mortgagor before a sale thereof, though sheriff may threaten to sell it irrespective
of the mortgage. Fugate vs Clarkson, 41.

2. In such case the possession of the mortgagor may be deemed that of the mort.

gagee, yet the sheriff, having an execution against the mortgagor, has a legal

IWDEX. 659

MORTGAGOR AND MORTGAGEE— Ct/Ui/zKCc/.

right to take the possession of mortgaged properly and hold it until afier sale,
and unt^ after an illegal sale or some other tortious act, which would make the
sheriff a trespasser, tib initio, mortgagee cannot divest sheriff of Uie possession.
Ibid, 42.

3. The mortgagee will, by the Chancellor, be held to account for the hire of slaves

mortgaged, whilst in his possession, and the amount for which they were hired
toothers by him, up to the rendering of the final decree. Woodard vs FUz-
ptUriekf 61.

4. On a bill by mortgagor to redeem, if on settling the accoujit a balance be found
due to the mortgagee, it is erior to decree a sale forthwith to raise that balance,
a day in Court should be given complainant to pay, and if he fail in a reasona-
ble time to do so, then to dismiss the bill absolutely or decree a sale to raise the
sum due on the mortgage if either party desire it. Ibid, 62.

6. Where money is loaned at usury, and a mortgage taken to secure the debt and in-
terest, legal and illegal, though the mortgagor may aflerwaids execute an abso-
lute conveyance by an agent, yet if the authority of the agent be doubtful, and
the price inadequate, the Chancellor will hear parol proof to unfold the whole
transaction, to show that a mortgage only was intended, and in such case,
where the mortgagee has violated confidence and seeks to hold the absolute
property, Chancery will permit a redemption. Cooib vs Colyer*8 etdm'r, 72.

6. The mortgagee of the I^gal title to a reversion, is entitled to the reserved and sub-

sequently accruing rent, as an ancident to his right, which may be enforced
against a delinquent tenant by an action for use and occupation. Caaileman
vs BdU, 158.

7. Neither mortgagor nor his sub-tenant, suffered to remain in possession after the

execution of a mortgage, are liable forrent so long as suffered to enjoy the use
as lessee from the mortgagor. Ibid, 158.

8. A mortgagee purchasing under a decree foreclosing his mortgage, may, after the

date of the decree, treat one in possession under the mortgagor as tenant or as
trespasser; and from the time of demanding possession or obtaining a convey-
ance is entitled to the accruing rents. Ibid, 160.

9. Mortgagor, &c. of real property, procuring an execution creditor to become the

purchaser of mortgaged property in satisfaction of an execution against him
under a promise to procure a release of the mortgage, and failing to do so, aller-
wards procuring the legal title to such property, will be compelled by the Chan-
cellor to surrender it and relinquish the legal title. Duvaly^ Waggener et aL 1 86.

10. And if he, in such case, has kept the possession, he will be compelled to surren-
der it, and account for rents from the time it was redeemable, two years after the
sale, deducting the value of any lasting and valuable improvements put upon
the premises. Ibid, 190.

11. On a bill in Chancery to ascertain a balance due on a mortgage, and for fore-
closure and sale, the jurisdiction is personal as well as local, and the person of
a necessary defendant or the locality of the mortgaged estate gives jurisdic-
tion. Caufman vs Sayre et at, 203.

12. On a bill for foreclosing the equity of redemption alone, any court where a ne-
cessary defendant may be served with process, has jurisdiction; but if a decree
for sale of land only is asked, the Court of the county has jurisdiction. Ibid, 203.

1 3. In case of a mortgage given to secure the payment of an entire debt, in instal-
ments, mortgagee may enter on failure to pay the first instalment, and is per-
mitted to retain the possession, accounting for rents. But a foreclosure of the

560 INDEX.

MORTGAGOR AND MORTGAGEE-^ Chnlintud.

equity of redemption as to tbe whole morrtgaged estate, will not be decreed oo
failure to pay one instalment of an entire debt Bid, 204.

14. If mortgaged property be indivisible, can the Chanoellor decree a sale for any
instalment, until all be dua — Qu. N, York case died, 209.

16. With the assent of mortgagor, Chancellor may sell to raise instalments not dne,
or perhaps where the sale of less might occasion loss to mortgagee of sabeequeot
instalments. Ibid, 209.

16. Mortgage to one of several joint sureties, who has paid the debt for his indenmity,
on a right merely contingent, not then available and mi^t never be so, consti-
tutes no bar to his recovery of contribution from his co-sureties. Ajtkifuon vs
Stewart, 351.
See Tenant and tenancy, 1, 2, 3, 4.

NEW TRIAL.

1. New trial will not be awarded where there is only a semblance of error in one in-

struction, where the vexdict is clearly right on another question in the case:
Lively vs Ball, 45.

2. Nor because of the exclusion of a competent witness, unless it appear that the

party may probably have been injured by the rejection of the witness. Ibid, 54.
a On the trial of an issue in a suit in Chancery of deveaavU vel non, that the Court
overruled the motion of the party for a continuance, made on the ground of the
absence of a witness, and his inability to attend, but whose deposition the
Court gave time to take, and which was taken and read in the case, is no ground
fqr reversal and new trial, as it does not appear but that the deposition was as
useful to the party as his oral evidence would have been. Bogarg vs Sogers, 324.

4. A Court of Chancery will not grant a new trial where one of two defendants is pre-

sent at the trial and makes no mbtion for a new trial: on the alledged gioond
that the agent was not there; and the discovery pf new testimony, not setting
it forth — and that the verdict was too high, not showing it to be so, the grounds
are palpably insttffident to authorize the inteiferance of the Chancellor. PdtU
4' Pogue vs Williams, 266.

5. New trial will not be granted in opposition to the opinion of the jury and Circuit

Judge, who heard the evidence and probably knew the witness, who was un-
impeached, because the case may appear a hard one. Chre vs Pfttii and
RoaSt 299.

6. A new trial should be awarded where the Court improperly sustained ademuirer

to a special plea of non estfaaum, although a general plea of non est factum was
tried by the jury. This Court will not presume that the facts set out in the
special plea were offered in evidence, or if offered, permitted to go to the jury
under the general plea. Johnson vs Bank United Stales, 313.

7. This Court will not reverse an order for a new trial, though error may have been

committed by the Circuit Court in rejecting evidence properly admissible, unless
the party was probably injured by its exclusion; nor where the Court would
have set aside the verdict if the rejected testimony had been admitted and the
verdict been different. Rogers vs Sogers, 326.
See Verdict and judgment, 1, 2, 3.

NON EST FACTUM.

1. If a surety sign a blank note for the avowed and single, purpobe of enabbng hi*
principal to borrow money from A and no other person, and the principal, with-

INDEX. 561

xVOiV EST FACTUM-'-CoiUinued.

out the knowledge or conaent of the surety, make it payable to B, and B have
notice of the facts, non est factum will be an available defence for the surety.
Qore vs Roaa and PeUit, 299.
2. A plea aycring that the note sued on had been altered, by inserting therein the
words or order, and thereby making it negotiable, when before such alteration it
was not negotiable, without the consent of the drawer, is a good plea of non est
factum. Bank United States vs Johnson, 312.

NON-RESIDENTS.

1. Non-residents in actions of ejectment, arc required to give bonds fiX costs, as
other non-resident plaintiffs prosecuting writs of error, and if they fail to do so
it may be pleaded in abatement of the suit. Hudgens et al. vs Jordan, 44.

NON-SUIT.

1. Where the evidence conduces in any d^reeto prove the assumpsit laid, it is im-
proper to instruct the jury to find as in case of nonsuit. Rowland ^ Riddle vs
Hanna, 129.

NOTICE.

1. Notice to one of two joint contracting parties is sufficient Bishop et ah vs

McNareyetal. 133.

2. That a notice was proved by an incompetent witness, should not be ground for

non-suit, without giving plaintiff an opportunity to release the witness or to offer
other evidence. Ibid, 133.

3. One days notice to take a deposition in Louisville to one residing two miles from

the City, is reasonable as to time. Mc Qinley vs McLaughlin, 302.

PAROL EVIDENCE.

1. Parol proof is competent to explain the extent of the interest intended to be cov-

ered by a policy of insurance, where it does not contradict the policy. Frank-
lin Ins, Company vs Drake, 62.

2. Parol proof is admissible to show that an absolute bill of sale was only inten-

ded by the parties as a mortgage where the transaction is tainted with usury.
Cook vs Colyer*8 advCr, 72.

3. Parol evidence cannot be admitted for the puipose of resisting a decree for the

specific execution of a contract for land where there is neither allegation or

proof of fraud. Langdon et al. vs Wool folk et al. 105.
See Evidence, 3.
Sec Contracts, 1.

PAROL CONTRACTS.

t. A parol promise to convey laud or procure another lo coii\ey ib equally withm
the statute of frauds, and cannot be enforced. Crai^ vs Prather, 12.

PARTIES AT LAW.

1. Two are principals in a leplevy bond, one makes a payment to the Sheriff on an
execution thereon, who fails to give the proper credit; a second execution issues
without the credit, and payment coerced from the same individual, such indi-
vidual s«par<Tf«/y has a right of action for the consequential injury against the
Sheriff on his bond. Commoniccahh for, 6fc. vs Kelly et al.

Vol. II. 71

562 INDEX.

PARTIES IN CHANCERY.

1. The assignee of one of several bonds secured by mortgage is necessary to a

suit by the assignor to foreclose the mortgage in satisfaction of the other bonds.
Bell vs Shrock, 29.

2. In a proceeding in Chancery under the statute of 1824, StaL Law, 259-60, the

owner of the steam boat is a necessary party, though the injury may have
been committed by another of the persons designated, where the design is to
subject the boat to the satisfaction of the damages sustained. Sirader vs Forey
124.

3. Though damages may be recovered in such case at law against the "owner,

mate, pilot or engineer" as well as the master, either severally or jointly with
the master; yet if a bill in Chancery be filed to subject the boat to the satis-
faction thereof, the owner is a necessary party to such bill. Ihid, 126.

4. In suits in Chancery affecting the rights of lunatics, they are not always indis-

pensable parties, though they may be proper defendants; and in such cases
where the lunatic is a necessary party on demurrer sustained to the bill, leave
should be given to amend and not dismiss absolutely. Berry \'^ Rogers, 308.
6. All persons interested in a trust fund sought to be subjected by bill in equity to
the payment of a judgment at law, are necessary parties. Hdm vs Har-
din, 239.
See Usury y 1.

PATENT.

J. A patent is conclusive evidence of title, and must be presumed to have issued
• upon competent evidence of right which issued upon any entry for land au-
thorized by law prior to the statute of 1816, for quieting litigation in any con-
test with a Kentucky Land Warrant. Hardin vs Cain et al. 56.

2. A patent issued on entries or surveys made prior to the statute of 1816, thoo^

variant from the entries, are nevertheless valid at law in equity against any
entry or survey on Kentucky Land Warrants. Ibid, 57.

3. The ^Ider patent carries with it not only the legal title but an intrinsic equity,

and this compounded right accompanied with possession, should not be divest*
ed by any questionable equity, much less by a title vitiated by fraud or invalida-
ted by mistake. Qray vs Oray*e heirs , 201.

4. Those who impeach patents for Military .Lands West of the Tennessee, because

the surveys on which the issues are variant from the entries, must show such
variance clearly, satisfactorily, and conclusively. Bays vs Woods, 222.

PARTNER AND PARTNERSHIP.

1. The representatives of one partner may be sued separately, though the other

partner still survive, such is the effect of the statute of 1797, Stat. Law, 318.
Max ey VB Averiir seizors. 107.

2. A note executed by partners, though not under seal, since the statute of 1812,

is as much an obligation and within the operation of the statute of 1797, StaL
Law, 318, concerning "joint rights and obligations" as are writings under
seal, and the remedy against the representatives of a deceased partner exists
at law in virtue of that Ibid, 111.

3. One partner has no implied authority to bind his partner by a sealed instrument.

Montgomery vs Boone et al. 244.

4. But one partner, notwithstanding the statute of 1812, giving to promissory note^

for the payment of money all the dignity and effect of a writing under seal,
may bind his partner by note or covenant without a bcal or scrawl. Ibid, 245.

INDF.X. 563

PARTNER AND PARTNERSHIP— CoTi/inM^rf.

6. One partner has no implied authority, resulting from the mere fact of partner,
ship, to bind the partner by sealed instrument. McCart vs Lewis, 267.

6. An express authority by parol will be sufficient to authorize one partner to bind

bis co-partner by sealed instrument; and such authority may be inferred by a
subsequent recognition of the instrument as executed. Ibid, 267.

7. Partnership property is first liable to the payment of partnership debts; but if

creditors of a partnership place themselves on different ground they must abide
their contract. January ^ Huston vs Poyntt et al. 406.
See Personal Property, 1. Notice, 1.

PENDENTE LITE,

See Lis pendens, 1 , 2, 3.

PENAL STATUTES.

See Legislative power.

PERSONAL PROPERTY.

1. A sale of personal property, whi\ein the adverse possession of another, passes no
title, nor will a rescission of allotment made by an adm'r. to a distributee re-
invest the adm'r with the legal title if the possession be not with the distribu-
tee, but held adversely by a third person. Waggener vs Hardin, 166.

PLEAS AND PLEADING.

1. To an action of trespass against a Sheriff and plaintiff for levying an execu-

tion on property exempted by the statute from execution, it is no defence to
say that the debtor had mortgaged the property to another before the levy.
Collett vs Jones and Hall, 19.

2. A note executed to J. N. & Co. and purporting to be assigned by J. N. and three

others, should, prirna facie, be taken to have been assigned by the obligees.
Burks, ^c. vs Howard, 66.

3. In such case a plea denying "that the plaintiffs assignors were the original obli.

gees in the note sued on*' is equivocal and properly rejected. Ibid, 66.

4. Plea to an action by an assignee, on a note purporting to have been assigned,

must be sworn to. Ibid, 67.
6. A general demurrer should be overruled, though there may be an insufficient
breach in the declaration. Craddock vs Hundley, 113.

6. On an issue formed on the plea of title or no title in the defendant in the execu-

tion, in a suit against a purchase under execution at a Sheriff's sale, the re;g-
ulahty of the issue of the execution is not in question and cannot be enquired
into. Ringo's vs Ward, 128.

7. It is a good plea in replevin against an officer, for him to aver a taking by writ

of fi. fa. and that the property taken was that of the defendant in the execu-
tion. Stephens vs Frazier, 252.

8. It is not necessary for an officer to show that the execution under which he jus-

tifies issued on a subsisting judgment, the process is his justification; but if it
become necessary by evidence adduced against the officer for him to show that
the plaintiff in the execution was a judgment creditor, to show plaintifis claim
to be fraudulent, he may do so without more specifically pleading it. Ibid, 252.

9. A plea averring that the note sued on had been altered by adding therein the

words or order, and thereby making it negotiable, when before such alteration

5G4 INDEX.

PLEAS AND PLEADING— Co?t///iM«/.

it was not negotiable, without tlie consent of the drawer, i& good as a plea of
ndn est factum, Johnson vs Bank U. 8. 312.

10. In covenant it i-s not competent for defendant, without any allegation of fraud or

mistakcj to aver a different consideration for the covenant than that set forth
on its face. Logan, ^c. Turnpike Road Company vs Petiit, 428.

11. Two bills are filed by creditois against mortgagor and mortgagee, requiring

an account between them, and a sale and decree for the remainder of the pro-
ceeds of the mortgaged effects; the first bill chaiges fraud, the second does
not; the suits are consolidated; the charge of fraud made in the second shall
enure to the benefit of the complainant in the first bill. Bowles et al. vs Schoen-
berger, 372.

12. A demurrer should not be sustained to a bill in Chancery^igainst adm'r. and

heiis, when if the biU had been taken for confessed against the intestate, a
decree should have been rendered by the Chancellor for complainant Page
vs Hughes etal 441.

13. A plea averring that the note sued on was given in consideration of a slave

purchased by defendant of plaintiff; that the slave was secretly unsound; that
the vendor knew and concealed it at the time of the sale, and that in a rea-
sonable time after the discovery of the fraud, the defendant in the action of-
fered to rescind the contract is a good plea: if true the contract was legally
rescinded. Thornton vs Johnson, 469.

14. In a declaration on contract for the hire of a slave and a failure to return it,

the day of hiring is not material, but the day of the surrender is; there is no
difference in the averments on an express and an implied promise; there is an
implied prtHuise to return a slave hired when the hire expires. Ewing 4" Con-
ner vs Qist, 465.
See Non est factum, 1. Rescission^ 3.

POSSESSION.

1. A conveyance of land adjoining to other lands, of which one is in actual pos-

session, will give a constructive actual possession of the part so conveyed,
where there is no actual adversary possession which will authorize an eject-
ment therefor against such possessor. GrijffUh vs Dicken, 24.

2. Poasession adverse and continued for 20 years bars an ejectment Ibid, 24.

3. Possession of a mortgagor is prima facie evidence of the right of possession.

Th3» prima facie right, on a sale of the equity of redemption, passes to the pur-
chaser, and he having a deed from the Sheriff may maintain ejectment against
the mortgagor. Martin vs Shelton, 64.

4. Nor in such case will the pendency of a suit by mortgagee at the time of the

sale for foreclosure in any manner affect the right of the purchaser or the
mortgagee. Und, 64.

5. Though an entry be made under an executory contract of purchase, and such

entry in its legal character be a tenancy at will, yet if it be held adversely in
fact with the knowledge of those claiming, or those under whom tliey claim,
for 20 years, the statute of limitation will bar an ejectment Moore vs Wehb,
283.

6. One who purchased land and had his lines run and took possession was pos-

sessed to his lines only; on discovering that the line did not extend far enoogh
to include the quantity, his possession was not, ipso facto, without an entry,
nor could forcible entr>' be maintained against one who had entered betwecR

INDEX. £C5

POSSESSION- CW/inw^.

the lines, nor would an entry between the lines give possesaion beyond the ac-
tual close, if another claiming under an elder patent mob in possession, claim-
ing to the extent of the patent covering the space between the lines. Hoakitis
vs Coj, 307.

7. One who purchases land adjoining to that of which he is in the actual posses-

sion, is possessed co-extensively with the limits of both parcels; and one who
enters on that possession and builds a cabin and locks it up is not possessed
beyond the actual close; and trespass cannot be maintained by the latter
against the former for cutting timber on land in his own actual possession.
FUk vs Branafnon, 379.

8. Where two patents conflict and possession is taken under the junior patent when

there is none under the senior, and held for more than 20 years, it is a bar to
an ejectment, and moreover will autliorize a recovery on such possessory title.
And if, in such case, the possession be taken iipder the elder conflicting patent
whilst the possession is held under the junior, unless it be wiihin the lap, it
will not prejudice the previous poaseeision under the junior patent, though it
had not then continued for 20 years, farther than the actual enclosure. Tby-
lor vs CoXf 430.

9. The possession of one co-partner enures to the benefit of and is the possession

of the other. Ibid, 432.

10. A possession taken and held by one joint owner and held for 20 years, is the
possession of all. Ibid, 434.

11. But if possession is taken and held adversely by one joint owner, the joint ten-
ant, so taking possession and holding it for 20 years, becomes thereby invested
with the right of entry. Ibid, 434.

See Forcible entry and detainer, 2.
See Ejectment, passim.

PRACTICE IN ACTIONS AT LAW.

1. The Court should not in the exercise of its judicial discretion permit a person

to be entered a defendant in ejectment for the purpose of pleading in abatement
tkat no bond for costs had been given. Hudgens et at. vs Jordan, 44.

2. It is not error for the Judge in Kentucky to charge the jury on the facta as well

as the law involved in the case, provided nothing contained in the charge be
calculated to mislead the jury. Ray vs Woods, 229.

3. If plaintiff voluntarily suffer a non-suit, he waives any objections to any opin-

ion of the Court which may have induced it, and cannot complain thereof as
error in this Court Whiting et ^l. vs Walker et al, 2ft3.

4. The Court is not bound to regard the parol offer of a party to make competent

his witness, the offer should be carried out by a release, &c. or this Court will
not interfere. Richardson and Letcher vs Bartley et al, 334.

5. The Circuit Court on overruling a motion for a non-suit is not bound to suspend

the farther progress of the trial to give the defendant time to take down the
evidence in a bill of exceptions and have it signed, provided the right to do so
is reserved in a reasonable time before the witnesses depart Miriam et aL vs
Yeager, 339.

6. One of several joint and several obligors may be sued in any county where he

is found. Moore vs Smith et al. 341.

566 INDEX.

PRACTICE IN CHANCERY.

1. The Chancellor will not grant relief against a defendant where it is not prayed

for. Duval vs Waggener et aL 186.

2. Though the Chancellor may act with seventy on points of practice, yet this

Court will not interfere on account of such rigorous exercise of discretion, un-
less it manifestly appear that injustice has been done. Idgon et al. vs Ifaylor,
498.
• 3. The afUdavit of counsel that he believes there was inequality in adivition, withoQt
specification of facts, designation of witnesses and documentSi amounts only
to his opinicTL This opinion, against the report of three commissioneis and an
array of six witnesses, is not sufficient to authorize this Court to interfere and
set aside the decision of the Chancellor. Ibid, 498.

PRACTICE IN THE COURT OF APPEALS.

1. This Court will not reverse a case at the instance of the defendant below, when
the jury were sworn to try the issue, merely because it does not appear ex-
pressly what the issue was if the effect of it appear. Dickens vs William
et al, 375.
See Rescission, 1.

PRESUMPTIONS.

1. The law does not presume that any of its penalties have been incuned, without

some evidence conducing to the proof thereof. Brown vs Young, 27.

2. On proof made that a note was given to a clock pedlar for a clock sold, the lep\

presumption arises that the pedlar had a license to sell, and some proof must be
offered to raise a contrary presumption, before he can be required to prove that
he had such license. Ibid, 17.

3. Cohabitation between a white woman and a black man will not authorize the

presumption that they were married. Armstrong vs Hodges et al 70.

4. Where the corporation of Louisville were authorized by legislative enactment \»

pass certain ordinances, the mayor and council unanimously concurring, and it
beailedged "that such ordinances were duly made by the mayor and cooncil,"
in the absence of proof to the contrary, the Court will presume they werepioP'
erly made. City of Louisville vs Hiaiietcd, 180.

6. Where the father put his daughter in possession of land, who claims it as her own
as a gift firom the father, and remains twenty years in possession, a jury mtf
presume that the possession was adverse, and not as tenant, and that the child
looked for no farther assurance, and perhaps might presume a conveyance in
such case. Moore vs Webb, 283.

6. The Couxt will not presume that a guardian ad litem appeared for infants, where
the record shows the reverse. Skaefer vs Gates and wife, 463.
See Evidence, 2.

PROBATE.

See Wais.

PROCESS-— SERVICE OP.

1. Service of process is necessary to make a decree and conveyance against heiis

effectual, and it is effectual and passes the title only of such as are served with
process. Downing' s heirs vs Collins et al, 96.

2. It is the duty of a sheriff having original process, when the same can be served

before the return day has passed, and actual return thereof to the clerk's office,

INDEX. 567

PROCESS, SERVICE OF— Conti7iued..

to serve the same on all the defendants. And if a return of not found is proved
to be false, it should be quashed, and the sheriff permitted to amend his return
according to the truth of the case. Thompson vs MorrU, 36.

3. The return of an officer on process ''executed" implies that he has done all which

he was authorized or the law required him to do; and such return on a writ in
replevin implies that the property was delivered to the plaintiff. StepJuna vs
FraztTy 253.

4. The service of process on a guardian od litem before his appointment as such, is

unauthorized, and a return to that effect extra-official and void. Shaefet vs
Qates and wife, 456.

5. Notice to one of his appointment as guardian cid litems does not, in any available

sense, make those for whom he has been appointed, defendants, in any suit
against them, the record, to bind infants, must show that they were parties to
the action in some legal and effectual shape. Ibidj 456.

PROTEST.

See Bills of exchange.

PUBLICATION.

1. A certificate of publication, amended seven yeais after, made to sustain a decree
founded thereon. Dotoning's heirs vs Collins et ah 96.

PURCHASER.

1. A purchaser at sheriff's sale of a life estate only in real property, acquires no

greater interest than that sold, although the entire title might la'wfuUy have
been sold. Boyce*8 executors vs Waller, 93.

2. A boTia fide purchaser at sheriff's sale, is entitled to protection against a de-

frauded creditor, who can pursue the property only in the hands of the fraudu-
lent party or his alienee, without consideration, or with notice of the fraud.
Ibid, 84.

3. A purchaser who buys land with full knowledge of a previous purchase by

another, holds the legal title in trust for the first purchaser, and will be required
by the Chancellor to surrender it Langdon et al. vs Woolfolk et ah 105.

4. A purchase under avoid judgment, acquires no right of entiy, and an entry under

such purchase is a disseizin. Shaefer vs Galea and v>ife, 454. ^
See Fraudulent conveyances, passim.

RENTS.

1. The owner of the reversion acquires a right to the accruing rent from the time of

the right to possession. Ckistleman vs O. djf L Belt 1 57.

2. A trustee who has enjoyed the trust property himself, should account for rents and

be allowed for ameliorations. Haggin vs Haggin, 321.
See Landlord and tenant, 1, 2. Damages, 4. Thrust and trustees. Distress, 1, 2, 3.

REPLEVIN.

1. A defendant in execution cannot prosecute an action of replevin for property

taken in execution under the writ, though the levy may be upon property exempt
by law from levy and sale. Reynolds vs Sallee, 18.

2. Though the statute of 1839-40 repeals the statute of 1830, which asserted the

common law inhibition, yet it left the common law as before the statute of
1830, which did not admit defendants in execution to replevy property taken in
execution. Jhidf 18.

568 INDEX.

REPLEVIN— Cowtmutti.

3. Replevin cannot be maintained by mortgagee againat sheriff, who, by virtue of a

writ of fL fa. against mortgagor, takes the possession of mortgaged property,
though he may tkreaten to sell it, disregarding the mortgage; for though th^po^-
^ session of mortgagor may be that of mortgagee, yet the sheriff has the right to
take the possession and hold it until after sale, and until after an illegal sale
or some other tortious act which would make him a trespasser ab initio^ mort-
gagee cannot divest him of the possession. Fugate vs Clarkson, 41. \

4. A plea to an avowry averring that distress was made for rent, **that when dis-

tress was made the relation of landlord and tenant had ceased, the landloidin
possession and the goods not on the demised premises," is not a good plea, it
should strictly deny that any rent was due, Lougee, 4^ vs Colton, ijfc 115.

5. To authorize a judgment d9 ^etorno hdbendo in favor of a sheriff, it is sufEcient

that he alledge the taking by writ of fi. fa, against the plaintiff, and that the
property was that of defendant therein, and subject thereto, and the juiy so
find. StepheTtsvB Frazer, 251.

REPLEVY BONDS.

1. It is irregular for a sheriff to permit part of tlie defendants in an execution to

give a replevy bond without joining the others, yet such bond is valid as a replevy
bond until quashed at the instance of the plaintiffs, and the judgment is meiged
therein. Kouna vs Bank Kentucky ^ 304.

2. Replevy bond will not be quashed at the instance of one defendant in the reptery

bond, because one defendant in the execution, who was left out of the replevy
bond, had advanced to the plaintiff the amount, and obtained the control of the
execution on the replevy bond. Ibidt 304.

RE-PUBLICATION.
See AmeTidments.

RESCISSION OF CONTRACTS.

1. Where vendee in the original bill claims a rescission of a contract of purchase

because of defect in a small part of one of several tracts, all being adjoinin^i
and calls for no exhibition of tiUe as to the whole purchase, until filing an
^mended biH, the Court, on deciding against complainants as to the small part,
should give defendant time to exhibit his title papers. Clarke, ^ vs BeH,
^, 3.

2. A vendor not having the legal title, but promising to procure it and failing todo

so on demand, is good ground for a rescission of the contract Craig vs Po-
ther, 11.

3. The Chancellor will not, at the instance of the vendee, dissolve a contract merely

because it exists in parol, the vendor being willing to comply, and having been
guilty of no shuffling, prevarication or injurious delay. Ibid, 12.

4. A distinct charge in a bill for the rescission of a contract, that vendor piomistJ
* to procure a conveyance of the legal title to his vendee, which was in anoth«i

and failing to do so on request, evasively answered, will be a sufficient ground
for rescinding the contract. Ibidy 11.

6. A purchaser of a horse, having paid no part of the price, and being defrauded in

the purchase, tenders back the horse, sueing for consequential damages resulting
from the fraud, cannot recover the value of the diseased horse, as by the tender
back the contract is rescinded. Paris vs LewiSf 377.
Sec Equity and equitable jurisdiction, passim. Pleasand pleading, 13.

INDEX. 569

RESTITUTION.

1. If one co-paicener oust another, judgment of restitution should only be to the
joint possession not to the entire and exclusive. Eoberiaonet al, vs Bobertwn
et al. 237.

REVENUE.

See Mayor and council of LouUvillc, 1.
REVOCATION.

See Wilh.

RIGHT OF ENTRY.
See Ejectment.

ROADS.

See Tolls, 1.

SHERIFF.

1. Sheriff may lawfully take the possession of mortgaged property, having an exe-

cution against mortgagor, whether in possession of mortgagor or mortgagee, for
the purpose of making sale of the equity of redemption, and until an ill^alsala
or some tortious act, which would make him a trespasser ab iniHOf cannot be
divested of that possession by mortgagee. Fugate vs Clarkaon, 42.

2. Sheriff is justified by the execution, emanating from the proper authority, and a

purchaser of property under such execution, though irregularly issued, obtains
all the title of the defendant therein. Ringos vs Ward, 128.

3. The owner of property may take the possession of his property wherever he cam

find it, provided he can do so without force or terror; so a sheriff, by virtue of
the special property acquired by the levy of an execution, may peaceably take
the possession of property levied on, and especially from the custody of his bai-
lees, where he has placed them. Richardson if Letcher vs Bartley et al 332.

4. A sheriff is vested with a special property in that on which he levies an execu-

tion, and may commit the custody thereof to any agent, the defendant in the
execution as well as another, and take bond for its faithful sunender; and in
such case the possession of such agent is his possession, and the sheriff may
resume it at pleasure, and such bond is obligatory as a common law bond.
Ibid, 332.

5. Deputy sheriff is not shielded by process from his voluntary and tortious acts.

Christopher vs Covington ^ Smith, 369.

6. The County Court should settle with sheriffs through their own members, ap-

pointed for that purpose, and any settlement otherwise made is not evidence of
itself against the sheriff. Mize; ifc, vs Noland, Atto. ^. 295.

7. The bond of a deputy sheriff to his principal, for the faithful performance of the

duties of deputy, and to save harmless the principal, is legally and morally
binding, though the deputy may, by contract, be entitled to the profits of the
office. Kouna vs Davis, 379.

8. The collection of the county levy is an incident to the office of sheriff, and when

the principal executes bond for its collection, the deputy who collects it as such,
is responsible to his principal for its legal appropriation. Ibid, 380.
Sec Evidence, 12, 13;

SHERIFF'S SALE OF LAND. :

1. Sheriff's sale of land under execution, is not illegal or void, though the execution
be for a greater amount than is due on the judgment, the sheriff duty being to

Vol. II. 72

570 INDEX.

SHERIFF'S SALE OF LMiiD— Continued.

satisfy the execution by the sale, unless it was quashed. Tiplcn vs Grubbs, S3.

2. A sheriff may, in selling estates conveyed with the reservation of the use for life,

&c. sell such reserved right only, and a purchaser under such sale will acquire
no greater estate than was sold, though a greater estate might lawfully have
been sold. Boyce's ex' ore. vs Waller , 93.

3. If a sheriff sell land by the request of defendant in the execution, such defendant

is estopped thereafter to resist the recovery of the possession by one holding the
sheriffs deed, on tlie ground that at the time of the sale he held an equitable title
only, which was not subject to sale. Read vs Heaaley, 266.
See Estoppel, 2.

SHERIFF'S RETURN.

i; It is the duty of a sheriff, having original process, when the same can be served
before the return day has passed, and actual return thereof to the clerk's office,
to serve the same on all the defendants. Thompson vs Morris, 36.

2. And if a return of "not found" is proved to be false, it should be quashed and the

sheriff permitted to return the truth of the case. Ibid, 36.

3. Sheriff's return should respond to the entire command of the writ, and the return

of "executed" implies that all the commands of the writ have been complied
with. Stephens vs Frazer, 253.

SLANDER.

1. The forging and publishing a letter rcpresciitirtg that the publisher and the indi-

vidual whose act it purports to be, are partners, not with the design of depriving
the latter of his property, is not a criminal offence either by common law or
statute. Jackson vs Weisiger, 216.

2. Nor is it slander to charge one with forging and publishing such a paper without

a more specific application of the charge to a case. Ibid, 215.

3. It is a felony to forge a letter evidencing a partnership; but to charge one with

forging a letter without saying more, does not necessarily impute a criminal of-
fence, nor to say that a Utter was written to defraud another; the charge is too
ambiguous and indeterminate. Ibid, 216.
See Libel and slander, I, 2.

SLAVES.

1. Slaves annexed to land, under the SSth section of the act of 1798, Stat. Law,

1478, applies to estates for life or lives, not estate of inheritance. Thylor and
wife vs Poston, 6.

2. The statute of 1798 making slaves real estate, and its proviso that they should not

escheat, does not imply that moveble property, where there is a defect of
heirs, does not belong to the Conunonwealth without office found, but only that
by being made real estate for certain purposes, they should not be subjected to
the circuitous process of an inquisition, &c. to secure the right of the Common-
wealth. Commonwealth vs Blanton*s executors et al. 399.

3. To an indictment for importing slaves contrary to the provisions of the statute of

1833, it is a good defence to plead that defendant had since taken and roistered
the oath prescribed by the statute of 1841 , to emigrants who had, in good faith»
imported slaves, but who had failed to take the oath prescribed by the statute
of 1833. Jackson vs Commonwealth, 402.

4. A mere organic or constitutional predisposition to a particular disease in a slave

is not unsoundness, either in its popular, scientific or legal sense. Fry's ex-
f €§Htor8 vs Throckmorton f 452.

INDEX. 671

SLAVES-- Continued. '

5. A remainder in slaves vested in the wife duiing coverture, vests absolutely in th«
husband. Paltie ti al vs Hall^ Pattit et al. 462.

SPECIFIC PERFORMANCE.
SeeFrau^, 1.

STATUTES CITED AND COMMENTED ON, OR EXPOUNDED IN THIS

VOLUME.

1796, Regulating Conveyances, page 6.
1788, Regulating Descents, page 6.

1792, 1797 and 1831, Concerning Conveyances, page 14.
1830 and 1839, Concerning the action of Replevin, page 18.
1828, Execution Law, pages 18 and 378.

1836, Juries, page 26.

1831, Concerning Pedlars, page 27.

1827, Sale -of Non-resident's Lands, page 42.

1834, Champerty, &c., page 43.

1815, Kentucky Land Warrant Claims, page 57.

1812, To amend the law of Civil Proceedings, 67.

1753, Against the union of white and black by marriage, page 70.

1835, Motions against Constables, &c., pages 47 and 526.
1821, Sales of Equity of Redemption, page 63.

1797, Concerning Partitions, joint rights and obligations, page 107.

1796, DestToying the jus accresceridiy 109.

62 H. III. 16, 8. Anne 14, and 1748 and 1811, Distress for Rent, page 116 and 360.
N 1824-8, Owners of Steamboats, &c., page 124.

1797, Concerning Executors Bonds, page 127.
1800, Alimony and Divorces, page 145.

1837, Attachments in Chancery, page 150.

1828 and 1836, Corporation of Louisville and Louisville Corporation powers, page

177.
1821 and 1826, Survey of Lands west of Tennessee, page 221, dec.
1812, Concerning unsealed instruments, page 246.
1837, Petition and Summons, page 262.

1798, County Courts and SheriflTs, page 255.

1836, Powers of Trustees of Hopkinsville, page 296.
1796 and 1812, Civil Proceedings, page 341.

1814, Concerning Indictments, page 646.

13 Ed. 1, c. 19, Westminster 2d; 31 Ed. Ill, c. 11; 22 and 23 Ch. IL c. 10; 1666,
Colonial Leg. Va.; 6 year English Commonwealth, 1661-2; 14 Ch. II. same
Legislature, 1712; 9 Anne, 1798, Concerning the Estates of persons dying '
without Distributees, pages 393-9.

1833 and 1841, Concerning the Importation of Slaves, page 402.

1790, Concerning Descents, page 462.

1821, Concerning Executions, page 622.

SUBSTITUTION.

] . One of several co-obligors against whom judgment is rendered, may advance the
amount of the judgment and contract for the control of the execution, and will
be protected therein until he is reimbursed his proportion of the demand. Mor-
ris vs Evans et al. 86.

672 INDEX.

SURETIES.

1. Surety may advance the amount of a judgment against himself and principa],

and stipulate for substitution and for the control of the judgment and execution
against the principal, and a court of law will protect him therein. Morria vs
Evans et al. 86.

2. And so a co-principal may advance the amount of a joint judgment against him-

self and another, and contract with the creditor for the control of the execu-
tion, and will be therein protected by a court of law until reimbursed his pro-
portion, in opposition to the will of the creditor. Ibidf 86.

8. Where one or more of several joint sureties pays off a note, by note in part and
money for the residue, and the principal be insolvent, such surety may demand
contribution firom the other joint sureties, though the substituted note be not fully
discharged, and maintain indebitatus assumpsit. Atkinson vs Stetoart, 4^ 350.

4. One of several joint sureties discharging the obligation by payment in money of
part and the execution of his note for the residue, has a right to require contri-
bution from his joint sureties, and may maintain indebitatus assumpslL Ibid,
361.

6, The right of one joint surety, who has paid the debt, to require contribution from
another, is not suspended by his having taken a mortgage from the principal by
way of indemnity, upon a right which is merely contingent^ not then available,
and which might never be of any value. Ibid, 361.

6. The 19th section of the statute of 1828, Stat Law, 646, applies as well to the

issue of a second execution after one has already issued on a replevy bond, as

' to the first, a lapse of 12 months, -at any time, when execution might have

issued, releases the surety in a replevy bond and other bonds having the

force of a judgment Bank of the CommonvfeaJth vs Patterson, 378.

See Executors and Administrators,

SURVEYS.

1. A survey on a certificate granted prior to 1808, is by the statute of that year,

superior in equity to any survey made since that period, though the first be on a
vague location and not conformable to that certificate. Oray vs Chray's heirs,
201.

2. Surveys on military entries west of the Tennessee, are not void unless they be

manifestly variant from the entries, and then only so far as the variance exists.
Bay vs Woods, 220.

TENANTS AND TENANCY.

1. If tenant for life discharge ah incumbrance on the estate for the benefit of the

inheritance, he will not be deemed a creditor of those in remainder. King's
heirs vs Morris ^ Snell, l04.

2. A tenant of mor1|^agor who became such after the execution of the mortgage, is

not liable to mortgagee for rent until entry by such mortgagee. Ckistlanan vs

Belts, 168. '
8. The purchaser of an equity of redemption does not acquire, as an incident to

such purchase, a legal right to rent reserved by the mortgagor and accruing

after the purchase, before decree and a conveyance. Ibid, 169.
4» A tenant of mortgagor does not become liable to a purchaser of the equity of

redemption, though he be mortgagee, until demand made or a conveyance to

him as purchaser. Ibid, iQO.
& It has not yet been decided in Kentucky that tenant for life may forfeit his estate

by claiming the fee in a court of record or a court of equity — which was not

[

INDEX. 573

TENANTS AND TENANCY— Cont<«««i.

by the ancient law a court of record — and the filing a bill by tenant for life,
against the reversioner, claiming an equity in the fee, growing out of the acts
of the reversioner, is not a ground of forfeiture authorizing an entry by the re-
versioner. Rcberiaonxs Miller, 293.
6. Where a contract is for the occupancy of a tenant for tiie year, on condition, if
the tenant does not \iolate the condition and is in no default, and an entry be
made upon his posseseion by the landlord, it is a trespass. McQee vs Olb-
8071, 353.
See Joint tenants, 1. Restitution, 1.

TIPLING HOUSES.

1. One who vends spirituous liquors in a room of a tavern house, which is in subor-

dination to the tavern, and by permission of the tavern keeper, is protected by
the license of the tavern keeper. Duncan vs Commonioealtk, 280.

2. The statute of 1835, Session Acts, 66, giving power to the trustees of Hopkins-

villcto license tiphng houses, is, as to all who may obtain such liccn3e, a sus-
pension of the general law^ and a protection against any penalty. Common-
wealth vs Luck, 286. «

TORTS.

1. Though a sheriff may lawfully levy an execution on property mortgaged, yet he

may be guilty of illegally selling, and by sucli illegal assumption show himself
guilty of a conversion ab initio, and the acts of the blicriff in disposing of prop-
erty after the institution of a suit against him for taking, are competent evidence
to show the original intention in taking. Christopher vs Covington and Smith,
359.

2. Where the taking is a trespass, plaintiff may waive the trespass and sue for tro-

ver and convenjion. Ibid, 369.

TOLLS.

1. Tolls are not demandable for traveling on turnpike roads between two gates with-
out parsing a gate, or unless the gate be shunned and the road travelled again,
Lexington and Georgetown T. R. Co. v^ Redd, 31.

TURNPIKES.

See Tbllsy 1.

TROVER,

1 . Trover lies against a sheriff for taking property covered by deed of tnist and selling-

it absolutely, and though the suit be instituted before the sale made, yet the acts
of the sheriff in making the illegal sale, are competent to show the original in-
tention in taking unlawful: Christopher vs Covington 4* Smith, 359.

2. A count in trover will be sustained by proof of a bailment, if an unlawful de-

tention be shown; and a count on a bailment will authorize a recovery, if it
shall appear there has been a wrongful detention, though no bailment in fact be
found, the manner of acquiring possession by defendant is unimportant Mar-
riametaLys Yeager, 339.

TRUSTS AND TRUSTEES.

1. A father who is privy to a conveyance of slaves by the grand-father to his infant
childien, and takes possession of them as father, becomes a trustee to such

574 • INDEX.

TRUSTS AND TRUSTEES— O/iaAucd.

children and waives any prior claim on his part to sucli slaves. Flndlg^ and
wife V8 Patterson's executors and detyiseeSf 76.

2. And the trust of the father in such case gives the Chancellor jurisdiction to deter-

mine the right concurrently with a court of law. Ibid, Tl.

3. Where the father becomes trustee for his child, the Chancellor will sabject to &

jealous scrutiny, any contract in relation to the trust property, yet where theie
is no proof of fraud, mistake, or improper influence, he will not interfere to set
aside a contract in relation to the trust property, made after the child is of fall
age. Ibidf 11. .

4. And where the father, after the child arrive at full a^e,4t^such case, purchase the

property of the child, his possession, from the date of such sale, will be consid-
ered as adverse to the child. Ihid, 11.

5. The possession of a trustee after a renunciation of the trust, is adverse from the

time of such renunciation; and the Chancellor will, when the jurisdiction is
concurrent, apply the bar as a court of law would do. Findley and vife n
Patterson's executors and devisees, 78.

6. An executor using the fiducial fund to purchase an incumbrance created on land

specifically devised by his testator, will be regarded as a trustee for the devisee.
Ooodloe vs Rodes, <j^. 87.

7. If such advances be made out of the proper funds of the executor, he may reim-

burse himself out of the executorial fund, and will not be therefor chaigabic
with a constructive fraud against subsequent creditors. Ibid, 87-8.

8. The wife cannot be presumed a trustee for the husband. King's heirs vs Monii

^ Snell, 104.

9. One who purchases land with full knowledge of a previous purchase by another,

holds the legal title in trust, for the benefit of the first purchaser, and will he
compelled by the Chancellor to surrender it. Langdon et al. \^ WoolfoUtdal
105.

10. A clause in a deed of tntst in favor of an unmarried woman, requiring the tiustee,

on her marriage, if she desire it, to vest the trust property in her absolutely, in
case her husband die, and also requiring the trustee ''to lay out so much of her
money as will enableher to procure the necessaries and comfortable means of
house keeping," may expend the whole estate and money conveyed. W«»p-
son vs Thompson, 168.

11. Such clause is not controlled by another in the same deed, requiring the trustee

in case of the death of the mother, to hold the estate for the use of the children,
and does not require that the whole principal shall be withheld from the use of
the mother, who was the maker of the deed, and placed the fund in trust IM^i
169.

12. Money conveyed in trust to be usecl, may lawfully be expended. Ibid, 169.

13. Trustee and cestui que trust are necessary parties to a bill in Chancer}', filed to

subject trust fund to the satisfaction of a judgment at law. Helm, ^ TiJkr-
din, 232.

14. Trustee is not liable for more than legal interest, though he might have loaned

the trust fund at a greater interest Montjoy and ux. vs Laskbrook et ei 261.
16. The Chancellor will not, without a breach of trust by trustee, withdraw from his

hands a fund, the profits of which only is given to cestui que trust, merely lo
enable such an one to loan it at more than l^al interest; and a refusal to loin
a trust fund at more than logal interest, is no breach of tnist. Ibid, 261.

INDEX. 575

TRUSTS AND TRUSTEES— O^Titiw wed.

16. A trustee should account for interest annually, to a cestui que trust entitled to the

profits of a trust fund, and failing to do so, the interest should annually be made
principal, and interest paid thereon. Ibid, 262.

17. A father placed two slaves in possession of his daughter at marriage, three years

afterwards took the covenant of the husband of the daughter to hold them as
the bailee of the father, to the use of the daughter. The father made his will
and died, in which he charged the daughter with a sum about equal to the value
of the slaves, and devised to her, on the death or maniage of his widow, whom
he appointed executrix, an equal portion of his estate, less by the sum charged
as aforesaid, and appointed the mother trustee for the daughter. Held that the
mother held the slaves as trustee for the daughter and the hire to be paid to her.
Cryer vs Cooper, 294.

18. A trustee having paid a sum of money to secure the possession of part of the

land held by another, afterwards becoming devisee of part of the tract of land,
not allowed to claim any thing against the devisees of the remainder, without
showing that the possession thus paid for extended beyond the part devised to
himself. Hoggin vs Haggin, 319.

19. Trustee having had the possession of an entire tract of land, and becoming de-

visee of part thereof, is liable to the devisees of the remaining part for the use
and occupancy thereof, and cannot limit his responsibility to the period of five
years before the decree, by protracting a litigation 17 years, which was com-
menced within one year after the rights accrued. Haggin vs Haggin, 320.

20. Trustees chargable for the use and occupation of land, should be allowed for

ameliorations. Ibid, 321.

21. The father purchased a tract of land worth $1200, conveyed it to his son, who

re-conveyed it to the father, and afterwards married and separated from his wife;
she filed her bill for alimony and divorce; without proof other than the mere re-
lationship, the Chancellor was not authorized to declare the property thus held
by the father a trust, or decree alimony to the wife out of the profits thereof.
McCrocklin vs McCrocklin, 370.

22. The Chancellor has jurisdiction to enforce trusts and prevent a perversion or

abuse thereof, and trustees authorized to invest funds in permanent and profita-
ble stock, have no right to withdraw it from a safe investment, where the inter-
est is regularly paid and pay their debts therewith, or invest them in stocks of
the city of Lexingjx)n that are below par and fluctuating. Trustees Transylvania
University vs Clay, 386.

23. The Chancellor, in deciding on the propriety of a permanent investment in such

case, should not be influenced by speculative contingencies as to losses on other
property of the trustee. Ibid, 386.

24. Trustees holding fund whilst there is a legal contest going on as to the right

thereto, without using it, and not required to pay it into Court, should not be
held to account for interest thereon. January ^ HoustonYs Poyntz et al. 406.
26. The father-in-law purchased of the son-in-law — who was embarrassed — sundry
slaves, took a bill of sale, gave it to his daughter, the wife of the son-in-law, en-
joining its safe keeping and assuring her that it would secure the slaves to her-
self and children; the slaves remained with the son-in-law until his death, the
father-in-law administered, leaving part of the slaves in possession of the daugh-
ter, hiring out others for the benefit of the infant children of son-in-law, for
whom he was guardian, dies and devises his estate to five stocks, his daughter
being one, spying nothing of those slaves; held that those slaves were the prop-

570 INDEX.

TRUSTS AND TRUSTEES- Con/mz^cd.

erty of the daughter's children — she being dead — and hold by the father duiing
his life, as trustee. BohannorCa heirs vs SthreshUy^a executors, 438.
26. Trustees and other fiduciaries, when contracting with those who axe interested in
the fiducial fund, should be particularly frank and explicit in making known
I their interest, and a failure to do so will constitute a good ground for the rescis-

sion of a contract of purchase of them. Narcis9a*9 executors vs Wathan Aal.
243.
See La'pae of time, 3.

USURY—

1. Where once made a ground of equity for injunction, cannot be a second time

relied on if the first injunction be dissolved; otherwise if it be only di$chttrgd
for failure to give a new injunction bond under a rule of Court Clark m
Young et ah 56.

2. Original contracts for annually compounding interest have been held er&sive

of the laws against usury; but if a borrower without any original agreement,
without paying the legal interest when due, agree to pay interest thereon u
well as on the principal for further forbearance, it is not usurious. Boia vs
Blyihe et ah 336.

3. If a loan be made at 10 per cent, and annually renewed by compounding inter-
. est at that rate, the Chancellor will relieve to the extent of the iiJcf al inter-
est, but admit the annual compounding interest at six per cent Vnd, 336.

4. The statute of 1819 only renders void, contracts for usurious interest to the a-

tent of the usury, and authorizes the recovery of principal and legal interest,
and does not affect the right to renew loans, and tlius to compound legal interest
Ibid, 337.
6. It might be that when the compoundings are so unusually frequent as to indi-
cate a disposition to oppress and evade the statute against usury, the Chancel-
lor might interfere. Such cases will be disposed of by their own particular
circumstances. Ibid, 337.

VENDOR AND VENDEE.

1. Where vendee in his original bill for rescission complains of defect of title only

in a small part of one of several tracts purchased, and does not, until filing aa
amended bill, call for an exhibition of title generally. The Court in decreeifl^
against complainant as to such small part, should give defendant time to ex-
hibit his title papers. Clark et al. vs Bell et al. 3.

2. The Chancellor should not decree a sale to satisfy the lien of the vendor whew

even a general defect of title is alleged, without first requiring vendor toexhilMt
in Court a sufficient conveyance duly acknowledged, and where vendor has »
wife, with proper certificate of relinquishment of dower, wliich being done, to
require vendee by a given day to deposit the sum due in Court, and 'on his fail-
ure, then to decree a sale. Ibid, 4.

3. A vendee having accepted a deed and retaining tlie possession, cannot enjoin

a judgment for the purchase money whilst the vendor is solvent LuckeU dd.
vs TripletVsadm'r. 40.

4. But if vendee be evicted by paramount title, and vendor insolvent, the Chan-

cellor will perpetually enjoin the payment of the purchase money. /W^» *"•

5. And a decree on a former bill between the same parties for the same object,

filed before the equity last relied on existed, will be no ba^ to relief on the sec-
ond suit. IbidfiO.

INDEX. 577

VENDOR AND VENDEE- Continued.

6. The purchaser of a bond for land holding bond for title, has no right to make a

new contract with one holding the legal title, and pay more than was due from
the original vendee, and charge the assignor of such bond with such advanee.
ment Combers IhrUton^sadrnW. andheira, 193.

7. Air.aasigDor-of a bond fortitlemayb& equitably boand to pay a.sumneeesaaril7

expended inextii^guishing the original . oonsideiaCion. to .the first .vendor. Ibid,

19a.

8. A vendee of land openly threatening to sne for a^reacMsioay and actually sueing

for ajreseissknr^ will not be permitted to change the prayer of hisbiUand elaim
a specific execution to the prejudioeof a-subseq^eBtpurotaasM ap^p^ed of his
aotst William* s^adm^r. \9 Starke and Bming, 197.

9. Though such subsequent purchaser may in his answer have professed a willing-

ness to relinqoi^ his purchase, yet if oo«Eq[>laittantT— first purchaser-jailer
ssieh answer filed, delay for years to signify his wilUngnew for. & specific exe-
cotioB, and then when the land has risen in value^ &c. amendhis bill signify-
ing his willingness to perfect the contract ^vithont payinip. the last payment then
due, the Chancellor will not decree au^ecifie eseoutionifor him;. he has tri-
lled wfUi the contract. Ibidi 196u

10. W purchased^ tract of; land of :S^ paid.8lOOQf<thepiiee, in a^ few days threat-

ened to sue for aoresclssiom; Ev appnsediof these facts, purohaeed the land of
& anflt gets the possession) W then files his bill for a. rescission,, October 10,
1882y> S> files his answer in Oct. 18S?, and with the assent, of E, professes a
willingness to execute the contract. In May, 1836, W. files his amended bill
pi»ying' a' specific eiX£outtoK; thalart payment having become due and not
madev norranyrkote or security given for its payment— -held .that W had no
right to claim a conveyance, having., trifled with the contract, and the land
risen un.vfliue in posBessiooft' of E; Ibid, 198.

11. TimeF is generally essential when there is a: want, of mutuality, in. contracts.

Page vs Hughes et al. 441.

"VERDICT AND JUDGMENT.

1: Bn^idi praetioe is- where the verdict, is general upon a declaration containing
good, witik other bad counts, in a declaration to amend the verdict by the
of ! the Judge, and if the evidence was applicable to the good counts, to
make the veidict. apply to such count and. render judgment accordingly.
BmnttrTinMlmi ifc 247.
3. Where a verdict and judgment has been rendered in the Court below on a
declaration containing some good and some bad breaches, ajid.no objection
made to evidence, or motion for a new trial or an arrest of judgment, this
Court will not reverse the judgment, but presume that the verdict aa^* j^dg-
nent was rendered upon testimony applicable to the good breaches only. Ibid^

3i "Wiiiere^the reoovery ' is such as the record shows the party had a right to have on
aigood'breaeh:inthe-de<daration, this Court will not presume that evidence was
heard and the recovery had on a bad breaoh. Ibldf 249.

VOID AND VOIDABLE.

1. A judgment without service of process, appearance or judicial nolioeof
mn^ is void* Skma/er vs Gates and laifey 465.

Vol. II. 75

678 INEEX.

WARRANTY.

1. An af&imation in a bill of sale of a Jack, that <'he is a good and anre foal^-
ter" imports a covenant of warranty that it was so. iicken ?s WiliiauiM A
al 374.

WILLS.

1. Wills made in Vii]^a, and there proved and recorded befcfte the aepatatum of
, Kentucky, are valid to paaa lands in Kentucky, and a copy ham the Probate

Court of Virginia properly certified, is evidence in Kentucky under the statute
of 1797. Qray and wife vs Pattont 13.

2. Though a testator be 86 years of age, if he dictate hia own viU and the provia-

iona manifest intelligence and sound moral sentiment, and be not procured by
duress or other undue influence, the will should be sustained. WaUo% vs WtA'
9on,*8 hein, 74.

3. Though a testator may be over 80 years old, and his physical energies greatly

impaired, yet if he be rational in all his acts and converaati€iis» and superin-
tend vnth inteiligenoe and care all his domestic affairs, Utigaiioiia, contiacta
for hiring, batter, aale and purchase of land and slaves, he hae cepacity to
makeawilL B€4d*9 WiU, 79,

4. The offering a will without offering a codicil attached thereto, doea not estop those

interested from subsequently proving the codicil. Ibid, 80L

6» In the trial of an issue of devatit vd r^cn, it is seldom prudent for the Court t»
instruct the jury that there is no evidence of fraud oi impiop^ inlhience in
procuring the will, though the Judge has the legal right to do so, and such de-
cision sustained in this case. Rogers vs Rogers, 326.

6. A testamentary disposition of movable property must, to be valid any where, be
made according to the local law of the testator'a domioil at the time of his
death. Barnes' adm*r. ys Brashoar etal 382.

T. A certified copy of a noncupative will purporting to pass property in Kentnekfr
proved and recorded in Mississippi, is not sufi&cient to show that such a vriU
had been made as the laws of Kentucky require. Ibid, 882.

8. A devise of land will not be effectual unless made and proved according to the
Ux loci rei scita. Ibid, 382.

9* A nuncupative will, unless proved according to the law of the domieil of the de-
visor, cannot be admitted as sufficient proof of such testament Ibid, 383.
IOL a nuncupative will proved in Mississippi, disposing of assets uk Kentn^dcy, is not

evidence here upon certificate of its proof there. Ibid, 388.
11. Intention of testator the governing principle in the construction of wiOs. Pattie.
etoLxB Sail, Pattie, etal 462.
See Evidence, 1.

W1T9SSS.

1. The witness offered by plaintiff in ejectment hadpurohaeedofplaiatiff' part oC
the land in contest, (in case of success,) on his testimony being obfeeted to, he
was released from his notes given for the prioe of the land; held that thii was
a release of the obligation to convey, and the witness thereby rendered oompe-
tent Ttfjflor's Mn vs Whiting's heirs, 270.
See Bwidence. Competency,

WRITS OF ERROR.

1. Writsof enerdo not lie to this Courtin any easei unless the J^idftteBtxendeied
by the Court below be finaL Oore vs PetUt and Boss, 25.

INDEX. 679

WRITS OF RiaHT.

1. Demandant in a writ of right may recover for so maoh as he may show himself
entitled to, though it be less than the writ demands. Shaefer vs Gates and vife.

See Bands fyr costs. Ejectment,

I r N •

* ' * : \ r, -vvt

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Full text of "Reports of civil and criminal cases decided by the Court of Appeals of Kentucky, 1785-1951"

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